Seth Weinberg, partner with Mauro Lilling Naparty in New York. Photo Credit: Matt Greenslade In order for plaintiffs to recover for noneconomic losses as a result of a car accident, they must prove that they suffered a “serious injury” as defined by Insurance Law Section 5102 ( see Insurance Law Section 5104 [a]). That “serious injury” must be caused by the accident as opposed to a pre-existing or degenerative condition ( see Pommells v. Perez , 4 NY3d 566 [2005]). In many cases, the parties' experts have conflicting opinions on this issue. A defense expert will contend, based upon radiological studies, medical record reviews and physical examination that a plaintiff's injuries were not caused by the subject accident. Many times, plaintiffs will submit the opinions of their post-accident treating physicians who base their opinions on their treatments of the plaintiff. It is also common for a plaintiff's treating physician not to address either the defendant's expert's opinion directly or the notations in plaintiff's medical records that indicate the existence of a degenerative condition. In the context of summary judgment, these forms of evidence have led to conflicting case law amongst all four departments of the Appellate Division that is difficult to harmonize. One body of law present in all four departments of the Appellate Division required a plaintiff's expert to address a defendant's expert's opinion or other evidence with regard to pre-existing conditions in order to raise a question of fact ( see Shea v. Ives ,137 AD3d 1404 [3rd Dept 2016]; Lopez v. American United Transp. , 66 AD3d 407 [1st Dept 2009]; Cardillo v. Xenakis , 31 AD3d 683, 684 [2nd Dept 2006]; Caldwell v. Grant , 31 AD3d 1154 [4th Dept 2006]). A second body of case law, also present in all four departments of the Appellate Division, excused a plaintiff's expert from addressing evidence of degeneration when it attributed the injury to the “equally plausible” cause of the accident ( Linton v. Nawaz , 62 AD3d 434, 440 [1st Dept 2009], 14 NY3d 821 [2010]; Wilson v. Colosimo , 101 AD3d 1765 [4th Dept 2012]; Fraser-Baptiste v. New York City Tr. Auth. , 81 AD3d 878 [2nd Dept 2010]; Colavito v. Steyer , 65 AD3d 735 [3rd Dept 2009]). These seemingly conflicting bodies of case law came to a head in three split decisions of the Appellate Division, First Department, which were eventually reviewed by the Court of Appeals. T he first of these cases was Alvarez v. NYLL Management (120 AD3d 1043 [1st Dept 2014], affd 24 NY3d 1191 [2015]). In support of their summary judgment motion, the Alvarez defendants relied upon the plaintiff's medical records and the opinions of a radiologist and orthopedic surgeon. Both experts concluded that the plaintiff's injuries were degenerative in nature. In opposition, the plaintiff's treating surgeon concluded that her injuries were caused by the accident, and were not degenerative changes. The surgeon did not address, however, the findings of the plaintiff's own radiologists and other health care providers who made findings consistent with degenerative conditions. In a 3-2 decision the Appellate Division, First Department, affirmed the grant of summary judgment. The majority of the First Department's panel concluded that the plaintiff's surgeon's opinion was insufficient, because “the surgeon failed to address or contest the detailed findings of pre-existing degenerative conditions by defendants' experts, which were acknowledged in the reports of plaintiff's own radiologists. Moreover, the surgeon's failure to address plaintiff's history of arthritis … warrants summary judgment dismissing those serious injury claims …” ( Alvarez , 120 AD3d at 1043). The dissenting justices held that the surgeon's treatment and review of the plaintiff's medical records were sufficient to raise an issue of fact. The matter proceeded to the Court of Appeals and the high court found that “plaintiff failed to raise a triable issue of fact whether she suffered a serious injury within the meaning of Insurance Law Section 5102(d) as a result of the underlying accident” ( Alvarez , 24 NY3d at 1192.) Subsequently, the First Department (in a 3-2 split decision) and the Court of Appeals reaffirmed Alvarez in Rivera v. Fernandez & Ulloa Auto Group (123 AD3d 509 [1st Dept 2014], 25 NY3d 1222 [2015]). |

'Franklin v. Gareyua'

This issue caused a third 3-2 split decision, and was visited by the Court of Appeals again in Franklin v. Gareyua (136 AD3d 464 [1st Dept 2016], affd 29 NY3d 925 [2017]). The Franklin plaintiff was granted partial summary judgment to the extent of dismissing only the claims with regard to his left shoulder. The radiologists who reviewed the Franklin plaintiff's left shoulder studies for his surgeon found nothing but degenerative conditions. The plaintiff's surgeon, however, did not address the findings of the radiologists when concluding that the plaintiff's shoulder injuries were caused by the car accident at issue in that case. While the majority of the First Department panel found the surgeon's opinion insufficient, the dissenting justices would not have required the plaintiff's surgeon to address the findings of the plaintiff's radiologists. The Court of Appeals affirmed the majority opinion finding that “[t]he Appellate Division correctly concluded that plaintiff failed to raise a triable issue of fact as to whether he suffered a serious left shoulder injury within the meaning of Insurance Law Section 5102(d) as a result of the underlying motor vehicle accident” ( Franklin , 29 NY3d at 926). |

Impact of 'Alvarez,' 'Rivera' and 'Franklin'

As a result of these cases, a plaintiff's expert must address evidence of a pre-existing condition contained in the plaintiff's own medical records in order for that opinion to be sufficient to raise a question of fact. In three of the four departments of the Appellate Division, Alvarez , Rivera and Franklin are easily applied in every case. The First, Third and Fourth Departments all allow for the possibility of the grant of partial summary judgment with regard to specific injuries or specific categories of the “serious injury” statute. For example, in Franklin , the First Department affirmed the grant of summary judgment related solely to plaintiff's left shoulder ( see Langensiepen v. Kruml , 92 AD3d 1302 [4th Dept 2012]; Lowell v. Peters , 3 AD3d 778 [3d Dept 2004]). The Second Department, however, will only grant summary judgment if a defendant can establish that all components of the plaintiff's claim can be dismissed ( see e.g. McFadden v. Barry , 63 AD3d 1120 [2d Dept 2009]). The Second Department's treatment of the prima facie burden at the summary judgment stage highlights issues that can arise during a trial if summary judgment is not granted in a case where the plaintiff's doctor's reports do not satisfy the most recent precedents from the Court of Appeals. If, for example, Franklin was a case in the Second Department, summary judgment would be denied and the matter would proceed to trial as to all of plaintiff's injuries. Theoretically, the opinions of the doctor that were insufficient to raise a triable issue of fact should not be heard by the jury. With that said, however, neither the Rivera nor Alvarez nor Franklin courts discuss the impact of their rulings with regard to trial practice. The Second Department's refusal to grant partial summary judgment can place defendants in a precarious position at the time of trial. An argument that an expert's opinion is inadmissible is an evidentiary objection that ought to be raised before the witness' testimony is concluded ( see Wall v. Shepard , 53 AD3d 1050, 1050-1051 [4th Dept 2008]; Koplick v. Lieberman , 270 AD2d 460 [2d Dept 2000]; CPLR 4017). Defendants, therefore, may need to move in limine to preclude the testimony of the expert to the extent it would be insufficient under Alvarez , Rivera and Franklin. By doing so, however, the expert may be able to fill in the gaps that were missing from the record during summary judgment. As a result, a claim that would be dismissed in the First, Third and Fourth departments could very well be allowed to proceed all the way to verdict in the Second Department. The Court of Appeals has now recognized that a doctor merely saying that there is causation based on a patient's history is an insufficient opinion where other treating doctors note the presence of degenerative conditions. In three of the four departments, if the evidence indicates that some of the plaintiff's injuries were not caused by the accident, then those motions for partial summary judgment should be granted and the jury should then only hear evidence related to injuries that could have been caused by the subject accident. In the Second Department, however, the jury may have to hear evidence about injuries that ought to have been dismissed, but for a procedural split with regard to summary judgment practice. While this procedural split may have had a limited impact prior to the recent decisions of the Court of Appeals, it appears that the split could have greater consequences and now may be worthy of further review by the Second Department or even review by the Court of Appeals. Seth Weinberg is a partner with Mauro Lilling Naparty. His practice spans medical and other professional malpractice; construction law; employment law; general negligence; products liability; asbestos; trust and estates; real property disputes; and commercial litigation.