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RIVERA v. UNITED STATES

January 28, 1998

JOSEPH RIVERA, HARRIET RIVERA, AND WANDA RIVERA, Plaintiffs, against UNITED STATES OF AMERICA, Defendant.


The opinion of the court was delivered by: TRAGER

 TRAGER, District Judge:

 At the conclusion of a bench trial which took place on October 7, 21, and 29, 1997, the court found that the defendant, the United States of America, was negligent, and that the plaintiff, Joseph Rivera, was not contributorily negligent concerning an automobile accident which occurred on January 11, 1993 in Brooklyn, New York between a car driven by agents of the Federal Bureau of Investigation and one driven by the plaintiff. The court further found that as a result of this accident, the plaintiff suffered injuries which caused him to be incapacitated for a period of at least ninety days immediately following the accident. The court awarded damages for the plaintiff in the amount of $ 40,000.

 Defendant moves for a directed verdict on the basis that the plaintiff failed to establish a serious injury as defined by New York's no-fault insurance law and that he, therefore, is not entitled to recover for non-economic losses arising from the accident. See N.Y.Ins.Law §§ 5102(d), 5104 (McKinney 1985).

 At trial, the court credited the plaintiff's testimony which established that he suffered injuries to his head, neck, and back, as well as residual attention deficits and cognitive disabilities affecting his memory which were of at least temporary duration; that these impairments prevented him from performing substantially all of his customary daily activities; and that this incapacity lasted for at least ninety out of the first one hundred-eighty days immediately following the injury. The United States argues that plaintiff's injury does not meet the requirements for a "medically determined" injury within the meaning of § 5102(d) of New York's no-fault insurance statute because no objective medical evidence was presented at trial to support his claims of injuries. See Trial Transcript ("Tr.") of 10/29/97 at 370-389.

 Several New York cases, however, do not specifically require objective evidence of injury, but nonetheless affirm that to constitute a "serious injury" under § 5102(d), an injury must be supported by "competent" or "credible" medical evidence. See Costa v. Billingsley, 127 A.D.2d 990, 991, 512 N.Y.S.2d 947, 948 (4th Dept. 1987) ("Plaintiff's complaints are entirely subjective and are unsupported by any competent medical evidence. . . . The subjective complaints of the plaintiff without medical foundation are insufficient to establish a prima facie case of serious injury. . . ."); Lanuto v. Constantine, 192 A.D.2d 989, 991, 596 N.Y.S.2d 944, 945 (3d Dept. 1993) ("Plaintiff . . . failed to present credible medical evidence that an injury or impairment was sustained."); Stossel v. Fleyshmahker, 117 Misc. 2d 454, 456, 458 N.Y.S.2d 484 (N.Y.Civ.Ct. 1983) ("The only substantiation of plaintiff's claim is her own diagnosis . . . that the injury caused her incapacitation. . . . There is no competent medical evidence that the . . . injury caused [plaintiff's] condition.").

 One New York Court of Appeals case, although not specifically setting forth a requirement of objective medical evidence, would appear to indicate that the subjective complaints of a plaintiff are not sufficient to establish a serious injury under § 5102(d). In Licari v. Elliott, 57 N.Y.2d 230, 238-39, 455 N.Y.S.2d 570, 574, 441 N.E.2d 1088 (1982), the New York Court of Appeals stated:

 
Plaintiff's subjective complaints of occasional, transitory headaches hardly fulfill the definition of serious injury. Plaintiff offered no proof that his headaches in any way incapacitated him or interfered with his ability to work or engage in activities at home. . . . We do not believe the subjective quality of an ordinary headache falls within the objective verbal definition of serious injury as contemplated by the No-Fault Law.

 It is evident that Licari did not squarely address the issue of whether a serious injury must be demonstrated through objective medical evidence. Rather, the case can be fairly read as standing for a middle position that a plaintiff's subjective complaints alone, in the absence of some independent validation by a competent medical authority, however rendered, will not establish a serious injury under § 5102(d). Furthermore, the case is readily limited to its facts. The Licari Court seemed to rest its holding on the relatively minor nature of the effects the plaintiff claimed to have suffered as a result of the accident, noting that there existed no proof that his commonplace headaches, which by the plaintiff's own admission were relieved by aspirin, in any way interfered with his ability to work or conduct his ordinary activities at home. See id.

 Contradicting the government's position is D'Avolio v. Dictaphone Corp., 822 F.2d 5 (2d Cir. 1987), a federal case interpreting New York law, which appears to hold that no objective proof of injury is required. Addressing the alternative methods of establishing a "serious injury" within the meaning of § 5102(d), the Second Circuit observed:

 
Plaintiff may also demonstrate a "serious injury" if she establishes that: (a) there was a medically determined injury, (b) the impairment prevented the injured person from performing substantially all of the material acts of the person's customary daily activities, and (c) the incapacity lasted for at least 90 out of the first 180 days immediately following the injury. While defendants correctly point out that the injury suffered must be "medically determined" to satisfy the last category of serious injuries listed in § 5102(d), they cite no case--and we have found none--requiring that elements (b) and (c) must be shown by medical testimony or that element (a) must be proven by an expert medical witness. New York courts considering elements (b) and (c) have focused on the credibility of the plaintiff's testimony.

 822 F.2d at 6 (citations omitted).

 Nothing within D'Avolio indicates that a claim of injury must be supported by objective medical evidence in order to be "medically determined" within the meaning of § 5102(d). In fact, the opinion appears to suggest that no such requirement exists. Although the Second Circuit did not specifically define the term "medically determined," in setting forth the requirements for a serious injury under the 90/180 prong of § 5102(d), the court cited Stossel v. Fleyshmahker, 117 Misc. 2d 454, 456, 458 N.Y.S.2d 484, 485 (1983), which stated that to be "medically determined" within the meaning of the statute, "it is not sufficient that a competent medical authority find that an injury was sustained. It must be 'medically determined' that the pain and suffering for which compensation is sought was caused by the injury." See D'Avolio, 822 F.2d at 6-7. Thus, under D'Avolio, while it would appear ...


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