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Plaintiff Loses Over Expert's Failure to Refute Defendants' Expert

Plaintiff Loses Over Expert's Failure to Refute Defendants' Expert

New York's “No-Fault Law” makes it difficult for automobile accident victims to bring a case against reckless or negligent drivers. Before a plaintiff can even present a case to a jury, he or she must satisfy a judge there is a “serious injury” caused by the accident. Defense lawyers commonly argue that any injuries alleged by the plaintiff were the result of a preexisting or degenerative condition.

Rivera v. Fernandez & Ulloa Automotive Group

Recently a divided panel of the Appellate Division, First Department, disagreed over just how far a plaintiff must go in refuting such defense arguments at the summary judgment stage. In this case, the plaintiff alleged he suffered a “serious injury” to his left knee as the result of a motor vehicle accident caused by the defendants' negligence.

The defendants presented expert testimony from a radiologist and orthopedist. Both examined the plaintiff and concluded he “had a chronic condition and suffered no injury causally related to the accident.” In response, the plaintiff presented testimony from his own orthopedic surgeon, who found he suffered a knee injury “secondary” to the accident. The plaintiff's surgeon did not specifically respond to or refute the findings of the defendants' experts.

Based on these conflicting expert opinions, Bronx Supreme Court granted the defendants' motion for summary judgment. The court found the defendants met their burden under New York law to show the plaintiff had not suffered a “serious injury”; the plaintiff subsequently failed to meet his burden to prove otherwise.

By a vote of 3 to 2, the First Department affirmed the Supreme Court's decision. The majority agreed with the lower court that summary judgment for the defense was justified since the plaintiff “failed to raise a triable issue” in response to the defendants' facial showing there was no serious injury.

But the two dissenting justices thought otherwise. The dissent credited the testimony of the plaintiff's expert, who identified at least two meniscus tears in the left knee. There was also no evidence of knee or ligament damage prior to the accident. The dissent argued this was sufficient to survive summary judgment, notwithstanding the plaintiff-expert's failure to directly refute the defense experts' conclusions. Nevertheless, the majority agreed with the Supreme Court and defendants there was nothing to see here.

Getting Your Case to Court

The sharp division between the First Department justices illustrates how personal injury cases are often a close call. Evidence that may satisfy one judge may not satisfy another. The deck is particularly stacked against plaintiffs given the requirement to define a “serious injury” before a jury can even hear the case.

Before bringing any personal injury case, it's essential to retain an experienced New York accident attorney. A qualified attorney can guide you through the intricacies of New York's No-Fault Law and help gather the necessary expert testimony to help maximize the chance your case gets to a jury. If you have any questions or would like to speak with an attorney today, contact our office.

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