In Perl v. Meher, decided this November, the Court of Appeals held that plaintiffs in motor vehicle cases need not present contemporaneous quantitative evidence of disability to prove “serious injury.”1 In other words, the treating physician need not have measured the plaintiff’s range of motion to a precise degree in order to substantiate the severity of the injury.
This reverses years of Second Department precedent and removes a significant obstacle to many plaintiffs’ cases. But Perl also reminds us what still does not suffice to prove “serious injury,” and offers guidance to plaintiffs and defendants litigating such cases.
“Serious Injury” and the No-Fault Compromise
In 1973 the Legislature passed the Comprehensive Motor Vehicle Insurance Reparations Act, commonly known as the No-Fault Law and codified in Insurance Law Article 51.2 To make motor vehicle claims less of a burden on consumers and the courts, the law effects a grand compromise.
Under the law, every driver in New York must have insurance that compensates injured persons regardless of fault for up to $50,000 of “basic economic loss:” chiefly medical expenses and lost earnings.3 In return, injured persons cannot seek to recover for pain and suffering unless they have a “serious injury.”4
Plaintiffs may meet this threshold requirement of “serious injury” under any of several definitions in Insurance Law § 5102(d). Some, like death, fracture, dismemberment or loss of a fetus, are relatively objective. The last three definitions, however, are more subjective:
permanent consequential limitation of use of a body organ or member;
significant limitation of use of a body function or system; or
a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.
Soon after the law’s passage, courts were wrestling with the ambiguity of these latter definitions.5 In doing so they imposed a more objective requirement for proof, but one that the Statute did not support.
Toure and the “Requirement” of Contemporaneous Quantitative Evidence
In Toure v. Avis Rent-A-Car Systems the Court of Appeals clarified the ways a plaintiff could prove “serious injury”:
In order to prove the extent or degree of physical limitation, an expert’s designation of a numeric percentage of a plaintiff’s loss of range of motion can be used to substantiate a claim of serious injury. An expert’s qualitative assessment of a plaintiff’s condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff’s limitations to the normal function, purpose and use of the affected body organ, member, function or system.6
Instead of reading these as alternatives, however, the Second Department required that plaintiffs prove “serious injury” through evidence that was both quantitative and contemporaneous with the accident.
Such was the case with the plaintiffs in Perl, a trio of cases. In two of them, Perl v. Meher and Adler v. Bayer, the plaintiffs relied on the same expert, who testified that he saw each plaintiff shortly after their respective accidents and observed difficulty in movement and impaired range of motion. The expert also testified that he reexamined the plaintiffs years later, this time using instruments to measure numerically their ranges of motion.7
In separate opinions, the Second Department granted judgment to both defendants in Perl restating what it considered settled law: “The plaintiffs are also required to demonstrate restricted range of motion based on findings both contemporaneous to the accident and upon recent findings.”8 In support, the Court cited a litany of Second Department precedents, but not Toure.
Perl: What Isn’t Required, and What Still Is
In both cases, the Court of Appeals reversed: “Toure … imposed no such requirement of ‘contemporaneous’ quantitative measurements, and we see no justification for it.” The Court reiterated that while contemporaneous observations are critical to the question of causation, subsequent examination can suffice to determine the severity of injuries.9 To require contemporaneous quantitative measurements, the Court observed, would penalize plaintiffs whose treating physicians were more concerned with treatment than litigation.10
The Court added, however, that the fact finder would be free to disregard that evidence. The Court then went even further, suggesting that it might be right to do so in Mr. Perl’s case, going so far as to offer alternative explanations for Mr. Perl’s condition and to further imply that Mr. Perl’s complaints lacked credibility.11 Nevertheless, the Court held that both cases could continue to trial.
But what of the third Perl case, Travis v. Batchi, in which the Court of Appeals affirmed summary judgment for the defendants?
In Travis v. Batchi the plaintiff claimed “serious injury” under all three of the more subjective definitions.12 Her evidence, however, not only failed to support any of these claims but actually contradicted them.
Ms. Travis submitted a report from her treating physician that alleged a “[m]ild partial disability” without ever actually identifying that disability. Without that, there could be no finding of “serious injury” under either the permanent-consequential-limitation or significant-limitation definitions.13
Ms. Travis also tried to prove “serious injury” under the 90/180 definition. She undermined this claim, however, with her own testimony that she was able to do some work from home less than three months after the accident. Again, her physician failed to identify the activities she could not perform.14
Proving “Serious Injury” After Perl
After Perl, plaintiffs’ attorneys will no doubt breathe a sigh of relief. Their cases are no longer doomed because their client’s treating physician failed to document the injuries with the numerical precision of a defense physician hired to examine the plaintiff during litigation.
Of course, as the Court of Appeals implies, nothing prevents the defense from attacking the credibility of the plaintiff’s evidence on summary judgment or at trial, even if that evidence includes contemporaneous quantitative measurements. While such an attack by the defense may be inadequate to prevail on summary judgment, it can certainly point out the weakness of the plaintiff’s overall case to the eventual benefit of the defendant.
What both sides will need, however, is what Ms. Travis failed to provide: expert evidence on the issue of “serious injury” that is objective, even if it is not necessarily quantitative. If the expert compares the plaintiff’s disability to any objective measure, like the normal function of the affected body part, then that should suffice (causation notwithstanding) to make a prima facie case for either side.
Perl focuses on proof of the severity of the injury, but litigants will also need evidence as to causation. This means that experts must address any prior or subsequent conditions that might explain the objective measurements of disability. Once a defense expert raises such a condition, the plaintiff’s expert must have addressed it or the plaintiff will be deemed to have failed to raise a prima facie case in the face of the defense evidence.
The dicta in Perl that contemporaneous evidence is critical to causation reminds us all of the importance of finding such evidence at the earliest point in the case. In the treating physicians’ records, right after (or before) the accident, defendants may find an absence of evidence supporting causation, or even evidence that refutes it.
All of this, of course, goes only to the question of summary judgment or judgment as a matter of law. Credibility is not usually a question before trial, but fact finders are free to disregard legally sufficient evidence if they find the witness unbelievable.
Christopher J. DelliCarpini and John M. DelliCarpini are principals of The DelliCarpini Law Firm with offices in Melville, representing plaintiffs in personal injury matters.
1. 2011 N.Y. Slip Op. 08452 (Nov. 22, 2011).
2. See generally Pommells v. Perez, 4 N.Y.3d 566 (2005).
3. Insurance Law §§ 5102(a), 5103(a)(4).
4. Insurance Law §§ 5102(d), 5104(a).
5. See, e.g., Hezekiah v. Williams, 81 A.D.2d 261 (2nd Dept. 1981).
6. 98 N.Y.2d 345, 350–51 (2002).
7. Perl, 2011 N.Y. Slip Op. 08452 at 4 (citations omitted).
8. Perl v. Meher, 74 A.D.2d 930, 931 (2nd Dept. 2010) (citations omitted). See also Adler v. Bayer, 77 A.D.3d 692 (2nd Dept. 2010).
9. Perl, 2011 N.Y. Slip Op. 08452 at 5.
11. Id. at 5–6.
12. 75 A.D.3d 411 (1st Dept. 2010).
13. Perl, 2011 N.Y. Slip Op. 08452 at 6.
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