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FILIPPINI v. BECKWORTH

October 28, 1991

DINA FILIPPINI AND SCOTT MILCHMAN, PLAINTIFFS,
v.
WALTER BECKWORTH AND UNITED NEWSPAPER DELIVERY SERVICE, DEFENDANTS.



The opinion of the court was delivered by: Glasser, District Judge:

MEMORANDUM AND ORDER

This is a personal injury action with parties of diverse citizenship. The defendants have moved for summary judgment and to dismiss the complaint on the ground that the plaintiffs have failed to establish a prima facie case of "serious injury" under Section 5102(d) of the New York Insurance Law. For the reasons set forth below, the motion of the defendants is granted, and the complaint is dismissed.

FACTS

On August 30, 1989, an automobile owned by defendant United Newspaper Delivery Service and operated by one of its employees, defendant Walter Beckworth, collided with an automobile owned and operated by plaintiff Dina Filippini on the Verrazano Bridge in New York. After the accident, Ms. Filippini drove herself home in an automobile brought to the site of the accident by her husband, plaintiff Scott Milchman. Defendants' Memorandum of Law at page 1. Plaintiff Filippini did not return to work until November 2, 1989 — approximately sixty days after the accident.

Two days after the accident, Ms. Filippini visited her obstetrician, Dr. Anthony Sgarlato (she was pregnant with her third child at the time of the accident). Dr. Sgarlato diagnosed plaintiff as having multiple trauma to her abdomen, groin, and lower torso. Letter of Dr. Sgarlato to plaintiffs' attorney, Anthony M. Kass, October 22, 1990. Dr. Sgarlato advised plaintiff to rest and to abstain from sexual activity. Id. Several weeks later, on September 27, 1989, Dr. Sgarlato diagnosed "right Inguinal ligamental tear", and he noted that "severe pain persisted." Ms. Filippini delivered her child in February of 1990 by elective caesarian section (as she had delivered her two previous children). The discharge summary signed by Dr. Sgarlato indicates that: "Patient was advised also . . . as to future pregnancies, one more may be envisioned." This discharge summary is dated March 3, 1990. However, a letter from Dr. Sgarlato to attorney Kass, dated October 22, 1990 indicates that: "She [plaintiff] and her husband have been advised that, due to the traumatic accident, scar tissue and severly [sic] relaxed uterine segment, future pregnancies should be avoided." Dr. Sgarlato has not submitted an affidavit with respect to this motion for summary judgment.*fn1

Plaintiff filed this action in December of 1989; she alleged "a serious injury resulting in basic economic and noneconomic loss" and she demanded damages in the amount of $750,000.00. Complaint at ¶ 8 (first cause of action). Her husband claimed damages of $75,000.00 for lost services, society, and companionship of his wife as well as for medical expenses incurred on her behalf. Complaint at ¶ 11 (second cause of action). On September 19, 1990, plaintiffs served a response to defendants' interrogatories in which Ms. Filippini claimed to have sustained the following injuries: tear of the muscles in the abdominal wall; tear and stretching of the uterus; and possible complications and/or inability to bear children. Response to Interrogatories at ¶¶ 8 — 9. On June 27, 1990, the defendants took the deposition of Ms. Filippini. During the course of this testimony, defendants did not specifically ask her about any other injuries she may have sustained. She did, however, indicate that, at the time of the accident, she had cuts on her left hand. Deposition of Dina Filippini, at pp. 25 — 26.

Almost a full year after her deposition, plaintiff served an amended response to defendants' interrogatories on June 6, 1991. In that paper, she amended her answers to ¶¶ 8 — 9, and she alleged that her injuries were as follows: cervical sprain and strain; cervical radiculopathy with pain radiating down left arm; weakness to left hand and wrist; carpal tunnel syndrome involving the median and ulnar nerve; median nerve entrapment at the left wrist; exacerbation of scoliotic thoracic myelopathy; post-traumatic brachial plexopathy; tear of the muscles in the abdominal wall; tear and stretching of the uterus; possible complications and/or inability to bear children. Amended Response to Interrogatories at ¶¶ 8 — 9. In her affidavit submitted in opposition to this motion, plaintiff states that:

  I presently have pain radiating down my left arm with
  numbness of the arm and of all the fingers of my left
  hand, greatest in the fifth finger. My left hand is
  weak and clumsy. I am unable to open or close a jar
  and I tend to drop things

  from my left hand. The pain is constant, and I have
  had this pain since my motor vehicle accident of
  August 30, 1989. There has been no improvement. In
  fact, the pain has become even more extreme and
  debilitating.

An affidavit of a certain Dr. Lawrence W. Shields supports the plaintiff's account of her injuries to her left arm and hand. He states that he "treated" plaintiff for her injuries;*fn2 that plaintiff complained to him of pain in her arm and of numbness in her hand; that plaintiff had two electromyogram ("EMG") tests at St. John's Episcopal Hospital on March 21, 1991 and on April 30, 1991 which "revealed electrical evidence of moderate to severe median nerve entrapment at the left wrist;" that plaintiff's "injuries include post-traumatic cervical myeloradiculopathy with left double crush syndrome (cervical radiculopathy and carpal tunnel syndrome) involving the median and probably the ulnar nerves . . . [and] an exacerbation of scoliotic thoracic myelopathy and post traumatic brachial plexopathy;" that it "may be stated with a reasonable degree of medical certainty that the automobile accident . . . was the competent producing cause of [plaintiff's] injuries;" that plaintiff has "sustained a permanent partial disability;" and, finally, that:

  Ms. Filippini has sustained a permanent loss of use
  of a body organ, member, function or system, to wit:
  her left arm and hand, as well as her median and
  ulnar nerves radiating down th [sic] left arm to left
  fingers; a permanent consequential limitation of use
  of a body organ or member, to wit: her left arm and
  hand; and significant limitation of use of a body
  function or system, to wit: her left arm and hand and
  nerves radiating down the left arm and hand."

Affidavit of Dr. Lawrence W. Shields at page 2.

In rebuttal, defendants contend that plaintiff Filippini has not suffered a "serious injury" within the meaning of New York State Insurance Law § 5102(d). They contend, inter alia, in their statement pursuant to Rule 3(g) of the Civil Rules for the United States District Courts for the Southern and Eastern Districts of New York that she did not sustain a permanent loss of use of a body organ, etc.; that she did not sustain a permanent consequential limitation of use of a body organ, etc.; and that she did not sustain a significant limitation of use of a body function or system. Finally, defendants contend, in the affidavit of their attorney, that: "Dr. Shields' report is not credible as it relates to the accident in question." On these contentions, defendants move this court for summary judgment and for dismissal of the complaint.

DISCUSSION

Federal Rule of Civil Procedure 56(c) provides, in relevant part, that summary judgment shall be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Thus, Rule 56(c) sets forth as clear prerequisites for summary ...


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