PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE INJURY WAS CAUSED BY THE ACCIDENT, AS OPPOSED TO A DEGENERATIVE DISEASE; TWO-JUSTICE DISSENT.
The First Department, over a two-justice dissent, determined defendants’ motion for summary judgment in a personal injury (car accident) action was properly granted. The majority concluded the plaintiff’s expert did not raise a question of fact about whether the injury was caused by the accident. Defendants’ experts opined the injury was caused by a pre-existing degenerative condition. The dissent felt that plaintiff’s expert raised a question of fact about causation because tearing of the relevant tissue was detected, a condition not mentioned by the defendants’ experts:
The dissent, taking the position that an issue of fact exists as to whether the accident caused plaintiff’s shoulder injury, does not deal with the aforementioned opinions of Dr. Lang and Dr. Lyons in plaintiff’s own medical records. It appears to be the dissent’s view that the support in plaintiff’s medical records for the shoulder injury having a degenerative origin are of no moment because plaintiff’s medical expert, Dr. Louis C. Rose, in his affirmation prepared for this litigation, offered a “diagnosis [that] . . . contrasts significantly with the one proffered by defendants’ experts.” However, the dissent offers no support for its view that there is a “factual disagreement” between the defense experts and plaintiff’s expert (Dr. Rose) on the diagnosis of the shoulder injury, as opposed to its etiology. Specifically, the dissent simply assumes that the defense experts’ diagnosis of osteoarthritis of the AC joint and chronic impingement syndrome were inconsistent with the presence of tears to the labrum and rotator cuff, which was Dr. Rose’s diagnosis. Nothing in the record supports the assumption that the conditions diagnosed by the defense experts do not result in tears to the labrum and rotator cuff. Franklin v Gareyua, 2016 NY Slip Op 00886, 1st Dept 2-9-16
NEGLIGENCE (NO QUESTION OF FACT RAISED TO REFUTE DEFENSE EXPERTS’ OPINION PLAINTIFF’S INJURIES DUE TO DEGENERATIVE CONDITION, NOT CAR ACCIDENT)/PROXIMATE CAUSE (NO QUESTION OF FACT RAISED TO REFUTE DEFENSE EXPERTS’ OPINION PLAINTIFF’S INJURIES DUE TO DEGENERATIVE CONDITION, NOT CAR ACCIDENT)