In Vaughan v. Leon,1 the Appellate Division, First Department, considered whether the plaintiff’s expert affirmation must “specifically address” a defense expert’s finding of degeneration in order to defeat a motion for summary judgment under the ‘threshold’ provisions of the Insurance Law. In a 3-2 decision the Vaughan court concluded that the plaintiff had raised an issue of fact despite the fact that her doctor did not specifically address the finding of the defendant’s expert that plaintiff had a preexisting, degenerative condition. Because the decision gathered a two-justice dissent, it is appealable as of right to the Court of Appeals.2

In November 2011, the Court of Appeals, in Perl v. Meher,3 negated what was the defense bar’s most common basis for summary judgment: the requirement of contemporaneous range-of-motion testing. This loss means that summary judgment motions alleging preexisting conditions will increase in frequency and the extent to which these allegations must be addressed will become an acute question.

The contemporaneous range of motion rule, disposed of by the Court of Appeals in Perl, was a unique rule that applied only in threshold cases. The “specifically address” requirement at issue in Vaughan draws on well-established rules regarding expert opinions in summary judgment motions. Application of these rules, as well as a close reading of the decision, reveals that, despite the sharp tone of the opinions, the majority and dissent were not far apart on the law.

Briefly stated, the “specifically address” requirement demands that when a defendant’s expert makes a non-conclusory finding that a plaintiff’s condition was not caused by the accident, those findings must be specifically addressed and rebutted in a non-conclusory fashion. This most often occurs in the context of a spinal injury where the defendant’s expert doctor concludes that the injury is degenerative in nature. This is consistent with summary judgment law in general, where “[i]t is well settled that expert opinions that are conclusory or unsupported by the record are insufficient to raise triable issues of fact.”4

‘Vaughan’ Decision

In Vaughan, the defendant’s expert opined that the plaintiff’s bulges were “chronic and degenerative in origin.”5 He based this conclusion on the fact that there was “no evidence of acute traumatic injury to the lumbar spine such as vertebral fracture, asymmetry of the disc spaces, ligamentous tear or epidural hematoma,” and concluded that “evaluation of this MRI examination reveals no causal relationship between the claimant’s alleged accident and the findings on the MRI examination.”6 All five judges agreed that this was sufficient to meet the defendant’s initial burden of showing the absence of a triable issue of fact.

The majority conceded that the plaintiff’s expert, Dr. Gautam Khakhar, did not specifically address the defendant’s expert’s conclusion that the plaintiff’s bulges were degenerative in origin. However, the majority concluded that the plaintiff had raised a triable issue of fact “by attributing the injuries to a different, yet equally plausible cause.”7 The equally plausible cause being, presumably, the underlying accident.

The majority explained that their conclusion was based on Khakhar’s statement basing his conclusion on “the MRI report of the lubrosacral spine and the right shoulder taken on July 16, 2007, electrodiagnostic testing, the patient’s medical records and objective clinical examinations of plaintiff, which revealed a painful and limited range of motion when compared to normal ranges, that began a week after the accident and continued for a period of approximately five months thereafter.”8

As aptly observed by the dissent, “Dr. Khakhar completely failed both to describe the contents of that report (other than to say it concerned the lumbosacral spine) and to explain how that unseen and undescribed report supported his conclusion that plaintiff’s symptoms “result[ed]” from the subject accident.”9 These same criticisms apply to the electrodiagnostic testing and the patient’s medical records but not the range of motion limitations. To the extent Khakhar based his conclusion on the foregoing, it was conclusory. On the other hand, the fact that these limitations began a week after the accident does provide a non-conclusory basis for the opinion that the plaintiff’s limitations resulted from the accident.

The dissent, in fact, conceded that where an asymptomatic, preexisting condition becomes symptomatic as the result of an accident, it meets the definition of a serious physical injury under the threshold law.10 The majority apparently accepted the contemporaneous onset of symptoms as sufficient to establish an issue of fact. The dissent did not contest that this would be sufficient, but instead argued that such a finding was unsupported by the record. It stated: “[t]he majority seems to take the position that the combination of plaintiff’s statement that “she had not previously been injured before this accident” with Khakhar’s observation of symptoms after the accident is equivalent to an affirmed statement by a physician that any preexisting condition had been asymptomatic before the accident. However, even if it is true that plaintiff was not ‘injured’ before the subject accident, that does not necessarily mean that she did not have symptoms until the accident occurred. Thus, I do not follow the majority’s logic.”11 The dispute between the majority and the dissent may therefore be construed as a factual, rather than legal dispute. The parameters of this dispute may be illuminated by the application of a separate summary judgement rule.

‘Threshold’ Law

It is axiomatic that, on a motion for summary judgment, all reasonable inferences are resolved in favor of the non-movant.12 In Vaughan, the dispute can be boiled down to a difference of opinion as to whether the factual inference was reasonable or not. Disputes such as this may be clarified by analyzing the facts with closer attention to the existing body of “threshold” law.

A serious physical injury has two elements: trauma, a herniated disk for example, and the limitations that result from that trauma.13 In Vaughan, the defendant’s radiologist only addressed the trauma, opining that the herniation was not caused by the accident. Khakhar, on the other hand, addressed the resulting limitations by diagnosing the cause of the plaintiff’s pain and inferred that, because the onset of the symptoms coincided with the accident, that the underlying trauma was caused by the accident.

The majority and dissent then followed the lead of the parties’ experts and were left discussing two different concepts. Although the majority and dissent were, ultimately, not that distant, Vaughan raises a number of important issues that will need to be resolved in light of the increasing frequency of motions based on the specifically address requirement.

The most consequential issue raised by a detailed analysis of the facts in Vaughan is whether the defendant met her initial burden on the summary judgment motion. The movant on a summary judgment motion has the initial burden of establishing the absence of a triable issue of fact.14 On the facts in Vaughan, the plaintiff’s injury could have been caused by an exacerbation of a preexisting herniation. This possibility was not foreclosed by the moving papers. The dissent conceded that, had Khakhar opined that plaintiff symptoms were caused by exacerbation, it would have been sufficient to defeat summary judgment. This would not, however, have created a factual dispute because both assertions could be true. The herniation may have been degenerative and become symptomatic after the accident.

Should the defendant have been required to aver that the accident did not cause the preexisting condition to become symptomatic? This depends on the medical record at the time the motion is made. If a diagnosis of exacerbation is contained in the plaintiff’s medical record, then yes. Alternatively, if it is held that the defendant has met her initial burden, then the existing medical record may be sufficient to defeat summary judgment.

If the moving papers are sufficient to establish entitlement to summary judgment, what must the plaintiff show to expose an issue of fact? The Vaughan dissent allows for two possibilities: a direct refutation of the defense expert or an expert diagnosis of exacerbation. A third possibility could be an affidavit from the plaintiff averring that the symptoms commenced with the accident. If the symptomology is consistent with the injury, a plaintiff’s affidavit should be sufficient to create an issue of fact.

Finally, policy implications must be evaluated. The dissent exhibited a strong preference for a physician’s affirmation addressing the defense’s expert’s conclusions. If this is the standard, it will require plaintiffs to pay for an additional report whenever a defense expert finds the trauma to be preexisting. Furthermore, this requirement would put the plaintiff’s doctor, not in the position of making a diagnosis, but of criticizing the work of the defendant’s expert. This may be an uncomfortable position for a doctor whose practice is not devoted to cases arising from litigation.

The permanent consequential and significant limitation categories of the threshold law are inherently indeterminate. It is unsurprising that courts continue to attempt to impose objective, uniform standards. Although rules such as the requirement that plaintiffs specifically address the claims of defense experts are, no doubt, useful in resolving threshold issues, they may lose their efficacy if applied in isolation. In Vaughan, the majority and dissent argued over the application of the specifically address requirement, when the actual disagreement was over a factual inference. This occurred because the rule was being applied without reference to the underlying summary judgment and threshold rules. Discussion of the underlying bases of the relevant rules will help insure that they are properly applied and the underlying cases justly decided.

Kevin R. Morrissey is Principal Law Clerk assigned to Leonard Livote, Acting Supreme Court Justice in the Bronx.

Endnotes:

1. 94 A.D.3d 646 (1st Dept. 2012).

2. CPLR §5601(a).

3. 18 NY3d 208 [2011].

4. Schrader v. Sunnyside Corp., 297 A.D.2d 369, 371, 747 N.Y.S.2d 26, 28 (2d Dept. 2002)[citations omitted].

5. Vaughan at 647.

6. Vaughan at 652, dissent.

7. Vaughan at 648.

8. Vaughan at 648.

9. Vaughan at 654 (dissent).

10. Vaughan at 654 (“it would have been sufficient for Dr. Khakhar to address Dr. Jessica Berkowitz’s finding of a degenerative condition by explaining that the condition was “asymptomatic” until exacerbated by the accident”) (dissent).

11. Vaughan at 644 fn 7 (dissent).

12. E.g. Rizzo v. Lincoln Diner, 215 A.D.2d 546 (2d Dept. 1995).

13. See, Pommells v. Perez, 4 N.Y.3d 566, 574 (2005).

14. E.g. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986).