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November 8, 2000


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


This action arises out of a motor-vehicle accident between a bus and a United States Postal Service tractor-trailer. Three of the bus passengers are suing the owner of the bus, the bus driver, and the United States for their injuries pursuant to the Federal Tort Claims Act and New York state law. The United States has moved for summary judgment pursuant to Fed.R.Civ.P. 56 against one of the plaintiffs — Maria Dellicarpini — on the grounds that she did not sustain a serious injury as required by the New York Comprehensive Motor Vehicle Insurance Reparations Act (the "No-Fault Law"). The bus owner — New York Bus Service — and driver — Sonia Rivera — join in that motion. Plaintiff opposes the motion by (1) quoting a report from a doctor who now disavows the quoted findings because the plaintiff and her attorney materially misled him, (2) submitting an affirmation from a doctor whose identity plaintiff did not disclose during discovery, and (3) declaring the findings of her own treating physicians to be unreliable. The government's motion is granted because the admissible evidence demonstrates that plaintiff suffered no serious injury from the accident. In addition, plaintiff is precluded (1) pursuant to Fed. R Civ. P. 37(c) from relying upon the medical opinion of a treating physician whose identity she failed to disclose during the course of discovery, and (2) pursuant to the inherent powers of this Court from relying upon the medical opinion of a physician whom she affirmatively misled.


On February 23, 1999, Maria Dellicarpini was a passenger on a New York Bus Service bus when it was struck from behind by a United States Postal Service tractor-trailer. (Dellicarpini Dep. at 23, annexed to the Normand Decl.)*fn1 Her body was "jolted forward"; however, it did not strike any part of the bus or any other passenger. (Id.) She exited the bus without assistance and went to work. (Id. at 60, 73; Rivera Dep. at 70, 78.) Later that day, she began to feel pain in her neck and sought medical treatment. (Dellicarpini Dep. at 21-22.) The doctor at the urgent care facility prescribed medication, which Dellicarpini did not take. (Id. at 24.)

A. Treatment by Dr. Saint-Phard

A few weeks later, because her pain was not subsiding, Dellicarpini sought treatment from Dr. Deborah Saint-Phard, a specialist in physical medicine and rehabilitation. (Dellicarpini Dep. at 67; Saint-Phard Dep. at 8-9.) Dr. Saint-Phard found that Dellicarpini had some restriction in her range of motion in her neck when instructed to move her head without assistance. (Saint-Phard Dep. at 21.) However, when the doctor moved her head for her, Dellicarpini had a full range of motion. (Id. at 21, 113-114, Ex. 2.) X-rays of her cervical spine were negative. (Id. at 26, Ex. 3.) Dr. Saint-Phard diagnosed her with "cervical tension myalgia secondary to whiplash injury," meaning Dellicarpini was suffering from a neck and upper shoulder strain likely caused by the accident. (Id. at 30, Ex. 2.) The doctor prescribed physical therapy and two medications to help reduce the swelling and lessen the pain. (Id. at 32, Ex. 2.) Dellicarpini participated in the physical therapy, but did not taken the medications. In fact, Dellicarpini has never taken any of the medications prescribed by any of her doctors because she is concerned that medication will make her drowsy and affect her ability to care for her young child. (Dellicarpini Dep. at 24-25, Ex. 7.)

In April of 1999, Dr. Saint-Phard examined plaintiff again. She found some muscle spasms in the right side of the neck and ordered an MRI, the results of which were normal. She again diagnosed plaintiff with "cervical tension myalgia secondary to a whiplash injury." (Saint-Phard Dep. at 45-48, 50-51, 117, 126-31, Ex. 7.)

A few days later, Saint-Phard examined plaintiff again. (Saint-Phard Dep. at 9.) At this point, the doctor believed that anxiety — rather than the accident itself — was contributing to the continuance of pain. (Id. at 58-62.) Saint-Phard subsequently examined plaintiff monthly until August — six months after the accident — when she formally concluded that plaintiff's accident related injuries were resolved. (Saint-Phard Dep. at 76-77, 89-91, Ex. 12, 14, 16.)

Dellicarpini returned to Dr. Saint-Phard three months later complaining of increasing neck pain. After an electrodiagnostic evaluation, the doctor concluded that Dellicarpini may have a pinched nerve in her neck, but did not believe it was related to the accident. She recommended that the plaintiff take medication and receive cervical epidural steroid injections; however, plaintiff did neither. (Saint-Phard Dep. at 78, 87-88, 99, 109-10, Ex. 17, 18; Dellicarpini Dep. at 24, 43-44, 94-95.)

B. Treatment by Dr. Westrich

In December of 1999, Dellicarpini sought a second opinion from Dr. Geoffrey Westrich, an orthopedic surgeon at the Hospital for Special Surgery. (Westrich Dep. at 8, Ex. B.) He found that her active range of motion, which is based on the patient's subjective complaints of pain, was restricted, but her passive range of motion, which is based on a doctor's objective evaluation of the patient's ability to move, was unrestricted. (Id. at 15-17.) Dr. Westrich also found that plaintiff suffered from a muscle spasm. (Id. at 18.) Dellicarpini underwent another MRI, which was also negative. (Id. at 21, 23-24, 51.) Nevertheless, Dr. Westrich referred plaintiff to a neurologist, Dr. Dexter Sun, to examine her for nerve damage. Dr. Sun diagnosed her with an inflammation of the muscle, but no nerve damage. He found no need for the epidural injections suggested by Saint-Phard, and instead recommended that the plaintiff take a muscle relaxant, an anti-inflammatory, and continue physical therapy. (Id. at 26, 34, Ex. E.)

Dr. Westrich examined Dellicarpini two additional times. When Dellicarpini informed him she was not taking the prescribed medication, the doctor encouraged her to seek treatment elsewhere, because he could not help her if she did not take the medication. (Westrich Dep. at 27, 30, 34, 36, 41, 52.) He could not determine whether her injuries were caused by the accident because he did not examine the plaintiff until ten months after the accident. (Id. at 39, 43.) Dellicarpini, however, claims that Dr. Westrich told her that her injuries were in fact related to the accident. (Weinstein Decl. Ex. A.)

C. Examination by plaintiff's no-fault insurance carrier's doctor

At the request of Dellicarpini's no-fault insurance carrier, Dr. Kenneth Falvo, an orthopedic surgeon, examined plaintiff six months after the accident and concluded that she had experienced a ...

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