whom the government had designated to examine plaintiff.
(Morrissey Decl. ¶¶ 4, 5, Ex. B.) Dellicarpini told him about the
accident at issue in this case and her subsequent medical
history, but, astonishingly, did not tell him about the accident
that had occurred only hours earlier. (Id. ¶ 5.) He diagnosed
her with a "mild residual cervical sprain." (Id. Ex. B.) When
Dr. Morrissey learned of the second accident, he stated that had
he known she was in a car accident the very day he examined her,
he "would have concluded that [that accident], rather than the
February 23, 1999 rear-end collision, was the likely cause of Ms.
Dellicarpini's symptomatology." (Id. ¶ 5.)
E. Treatment by Dr. Krosser
A day after the second accident, Dellicarpini sought treatment
from Dr. Barry Krosser, an orthopedist, and told him she suffered
from back pain as a result of the second accident. (Supp. Normand
Decl. Ex. A.) She did not tell him about the accident at issue in
this case. (Dellicarpini Dep. at 129-30.) Both Dellicarpini and
her attorney confirmed at a deposition in June of 2000 that Dr.
Krosser was not treating plaintiff for any injuries related to
this case. (Id. at 129-30, 140, 146, 158-59.) Plaintiff did not
disclose Dr. Krosser to the government as a treating physician or
expert witness. (Def. Reply Mem. at 8; Pl. Mem. at 5.) After
learning about the second accident and Dr. Krosser's treatment,
the government subpoenaed Dellicarpini's medical records from
Krosser. (Supp. Normand Decl. Ex. A.) He subsequently submitted
an affirmation stating that he is now aware that Dellicarpini was
in a previous accident, and he finds that her injuries were
caused by the first accident, rather than the second accident.
(Weinstein Decl. Ex. B.)
F. Plaintiff's activities since the accident
Dellicarpini missed one-half day of work on the day of the
accident at issue, but did not miss any other time from work as a
result of her injuries. (Dellicarpini Dep. at 11-12.) She is not
currently working because she wants to "spend some time with
[her] child." (Id. at 64.) She confirms that her decision not
to work is not related to the accident at issue. (Id. at 10,
64.) For the eleven months plaintiff worked after the accident,
she was able to perform all her tasks as an administrative
assistant, including "typing," "answering phones" and "lots of
paperwork"; however, she experienced some pain while performing
those activities. (Id. at 11-14, 71-72, 82.) Dellicarpini has
also been able to perform all her household activities — albeit
with some pain — including cooking, cleaning, laundry, grocery
shopping, taking out the garbage, and caring for her two-year old
son. Her physicians never placed any restrictions on her work or
household activities. (Id. at 47-49, 84, 102; Saint-Phard Dep.
at 49-50; Westrich Dep. at 54-55.)
A. Summary judgment standard
Summary judgment may be granted "only when the moving party
demonstrates 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.'" Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir.
1995) (quoting Fed.R.Civ.P. 56(c)); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). The Court must "view the evidence in the light most
favorable to the nonmoving party and draw all reasonable
inferences in its favor, and may grant summary judgment only when
`no reasonable trier of fact could find in favor of the nonmoving
party.'" Allen, 64 F.3d at 79 (citation omitted) (quoting
Lund's, Inc. v. Chemical Bank, 870 F.2d 840, 844 (2d Cir.
Once the moving party meets its initial burden of demonstrating
the absence of a genuine issue of material fact, the nonmoving
party must come forward with specific
facts to show there is a factual question that must be resolved
at trial. Fed. R.Civ.P. 56(e); see also Legal Aid Society v.
City of New York, 114 F. Supp.2d 204 (S.D.N.Y. 2000). A nonmoving
party must produce evidence in the record and "may not rely
simply on conclusory statements or on contentions that the
affidavits supporting the motion are not credible." Ying Jing
Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993). In
short, a nonmoving party must "do more than simply show there is
some metaphysical doubt as to the material facts." Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986).
B. Preclusion of evidence
Plaintiff attempts to create a factual question regarding the
severity of her injury by citing the medical opinions of Drs.
Morrissey and Krosser. However, this evidence is precluded due to
plaintiff's misconduct in procuring these opinions.
1. Dr. Morrissey's medical findings
As noted above, plaintiff was examined by defendant's expert
Dr. James Morrissey a few hours after she was in a second
motor-vehicle accident. The circumstances surrounding the two
accidents were very similar; both involved a rear-end collision
in which plaintiff was "jolted forward." Yet neither Dellicarpini
nor her attorney — who accompanied her to the examination — ever
told Dr. Morrissey that she had been involved in this second
accident just hours before the examination. When Morrissey
learned of the second accident and plaintiff's misuse of his
findings, he specifically disavowed any finding of a causal
connection between plaintiff's symptoms and the accident at issue
in this case. (Morrissey Decl. ¶ 5.) For this reason, pursuant to
its inherent authority, the Court will not consider the medical
findings of Dr. Morrissey. See, e.g., Shao v. Paszynsky, 2000
WL 307372, at *4 (E.D.N.Y. Jan. 31, 2000) (emphasizing the
importance of considering only credible medical evidence in
motion for summary judgment), Yanez v. City of New York,
29 F. Supp.2d 100, 114 (E.D.N.Y. 1998); Campbell v. Finke,
187 A.D.2d 780, 780, 589 N.Y.S.2d 382, 382 (3d Dep't 1992).
2. Dr. Krosser's medical findings
The affirmation of Dr. Barry Krosser submitted by plaintiff,
which states that Krosser now believes her injuries were caused
by the first accident, will not be considered on this motion for
summary judgment because plaintiff failed to disclose the witness
pursuant to Fed.R.Civ.P. 26(a). Rule 26(a) requires parties to
disclose witnesses with "discoverable information relevant to
disputed facts" and expert witnesses. Fed.R.Civ.P. 26(a)(1)(A),
(a)(2). She never designated Dr. Krosser as a treating physician
nor as an expert witness despite the government's demands to
disclose all treating physicians and expert witnesses. In fact,
plaintiff and her attorney vehemently denied that Dr. Krosser was
treating plaintiff for her lawsuit-related injuries.
(Dellicarpini Dep. at 129-30, 140, 146, 158-59). Nevertheless,
apparently in an effort to produce some evidence of serious
injury, plaintiff asks this Court to consider the affirmation of
Dr. Krosser despite baldly violating the rules of civil procedure
and acting in bad faith.
Fed.R.Civ.P. 37(c)(1) provides, in relevant part, that "a party
that without substantial justification fails to disclose
information required by Rule 26(a) or 26(e)(1) shall not, unless
such failure is harmless, be permitted to use as evidence at a
trial, at a hearing, or on a motion any witness or information
not so disclosed." The Advisory Committee Notes to that rule
explain that it "provides a self-executing sanction for failure
to make a disclosure required by Rule 26(a), without need for a
motion under subdivision (a)(2)(A)," and "prevents a party from
using as evidence any witnesses or information that, without
substantial justification, has not been disclosed as required by
Rules 26(a) and
26(e)(1)." Fed.R.Civ.P. 37(c)(1) Advisory Committee Notes (1993
Amendments). The purpose of the rule is to prevent the practice
of "sandbagging" an adversary with new evidence. Johnson
Electric North America v. Mabuchi Motor America Corp.,
77 F. Supp.2d 446, 458 (S.D.N.Y. 1999). Despite the language in the
rule that would imply automatic preclusion of the evidence,
courts recognize that preclusion is a drastic remedy and
therefore exercise discretion and caution. See Newman v. GHS
Osteopathic Inc., 60 F.3d 153, 156 (3d Cir. 1995); Johnson
Electric, 77 F. Supp.2d at 458.
Dellicarpini fails to provide any substantial justification, as
required by Rule 37, for failing to disclose the existence of Dr.
Krosser to the government. She simply contends that her failure
is harmless because the government subpoenaed Dr. Krosser's
medical records once it learned of him. This argument lacks merit
because these records only show Dr. Krosser's medical findings
with respect to plaintiff's back injury, which was caused by the
second accident. (Supp. Normand Decl. Ex A.) They make no mention
of the findings in Dr. Krosser's affirmation regarding the
severity of plaintiff's neck injuries and the likely cause of
those injuries. If the government had known that Krosser was
treating plaintiff for her injuries related to this lawsuit, it
would have been able to depose him as it deposed plaintiff's
other treating physicians. Therefore, the failure to disclose was
Plaintiff also acted in bad faith in not disclosing Dr.
Krosser. When asked directly whether Dr. Krosser was treating her
for her injuries related to this case, plaintiff testified that
he was not. Furthermore, plaintiff's counsel repeatedly
instructed his client not to answer any question relating to
Krosser's treatment, and even threatened to seek sanctions
against defendant for pursuing that line of inquiry.
(Dellicarpini Dep. at 124-33, 140, 146, 150-62.) This is the
exact type of behavior Rule 37(c)(1) was designed to prevent; the
Court will preclude Dr. Krosser's affirmation. See, e.g.,
Federal Deposit Ins. Corp. v. Wrapwell Corp., 2000 WL 1576889,
at *1-3 (S.D.N.Y. Oct. 23, 2000); Communispond, Inc. v. Kelley,
1998 WL 473951, at *4-5 (S.D.N.Y. Aug. 11, 1998).
C. Serious Injury
The admissible evidence shows that plaintiff did not suffer a
serious injury as required by New York's No-Fault Law. Plaintiff
sues the United States pursuant to the Federal Tort Claims Act
("FTCA"), 28 U.S.C. § 1346(b), 2671-80, under which the
government's liability is determined by the law of the state
where the accident occurred. Goodkin v. United States,
773 F.2d 19, 21 (2d Cir. 1985); Patrello v. United States, 757 F. Supp. 216,
218 (S.D.N.Y. 1991). Because the accident occurred in New
York, this action is governed by New York's No-Fault Law, N Y
Ins. Law §§ 5101-5108 (McKinney 2000).
The No-Fault Law provides that plaintiffs can only recover in
tort the amount of "basic economic loss" that exceeds $50,000.
N Y Ins. Law §§ 5102(a), 5104; Patrello, 757 F. Supp. at 219.
"Basic economic loss" includes medical expenses, lost wages, and
other reasonable and necessary expenses. N.Y. Ins. Law § 5102(a).
Dellicarpini missed only one half-day of work and incurred
approximately $500 in out-of-pocket expenses due to the accident.
(Dellicarpini Dep. at 12, 107-08.) Because this does not exceed
$50,000, Dellicarpini cannot sue for "basic economic loss."
The No-Fault Law also allows tort recovery for non-economic
loss if plaintiff sustained a "serious injury," as defined by
N Y Ins. Law §§ 5102(d), 5104(a). See also Licari v. Elliott,
57 N.Y.2d 230, 237, 455 N.Y.S.2d 570, 441 N.E.2d 1088 (1982).
Three categories of "serious injury" are potentially relevant to
this litigation: (1) "permanent consequential limitation of use
of a body organ or member," (2) "significant limitation of use
of a body function or system," and (3) "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
activities for not less than ninety days during the one hundred
eighty days immediately following the occurrence of the injury or
impairment." N.Y. Ins. Law § 5102(d); see also Lanuto v.
Constantine, 192 A.D.2d 989, 989, 596 N.Y.S.2d 944, 945 (3d
Dep't 1993). The court may determine the existence of a serious
injury as a matter of law. Licari, 57 N.Y.2d at 238,
455 N.Y.S.2d 570, 441 N.E.2d 1088. Once the defendant has made a
prima facie showing that the plaintiff has not suffered a serious
injury, the burden shifts to the plaintiff to present admissible
evidence demonstrating a serious injury. Shao v. Paszynsky,
2000 WL 307372, at *3 (E.D.N.Y. Jan, 31, 2000); Morrone v.
McJunkin, 1998 WL 872419, at *2 (S.D.N.Y. Dec. 15, 1998).
In this case, the United States has demonstrated through
medical evidence and the admissions of plaintiff herself that
plaintiff suffered no serious injury as required by N.Y. Ins. Law
§ 5102(d). Plaintiff attempts to discredit this evidence by
accusing Dr. Saint-Phard of inexperience. Given Dr. Saint Phard's
attendance at Princeton University and Temple Medical School and
her participation in various internships, residences and
fellowships in physical medicine and rehabilitation, (Saint-Phard
Dep. at 7-8), the Court dismisses plaintiff's attack on
1. Permanent consequential limitation of use of a body organ or
To establish a serious injury based on permanent consequential
limitation of use of a body organ or member, plaintiff must
produce competent medical evidence that her injuries are
permanent. Yanez, 29 F. Supp.2d at 114; Albanese v. Stevens,
148 A.D.2d 805, 806, 538 N.Y.S.2d 384, 385 (3d Dep't 1989).
Subjective complaints of pain do not suffice. Patrello, 757
F. Supp. at 222; Yanez, 29 F. Supp.2d at 114; Gabianelli v.
Gerardi, 175 A.D.2d 468, 468, 572 N.Y.S.2d 516, 516 (3d Dep't
In this case, there is no competent medical evidence that
Dellicarpini's injuries are permanent. On the contrary, both of
her treating physicians found that her injuries are not
permanent. Saint-Phard concluded that plaintiff's
accident-related injuries had resolved, and Westrich opined that
plaintiff's pain would go away if she would simply take the
prescribed medications. (Saint-Phard Dep. at 89-91, Westrich Dep.
at 36-40.) Dr. Kenneth Falvo, who examined plaintiff on behalf of
her insurance carrier, also concluded that her accident-related
injuries had resolved. (Falvo Report.) Therefore, plaintiff
suffers no serious injury pursuant to this category of the
2. Significant limitation of use of a body function or system
To establish a serious injury based on a significant limitation
of use of a body function or system, plaintiff must prove that
she suffered from "something more than a . . . minor, mild or
slight limitation of use." Licari, 57 N.Y.2d at 236,
455 N.Y.S.2d 570, 441 N.E.2d 1088; see also Scheer v. Koubek,
70 N.Y.2d 678, 679, 518 N.Y.S.2d 788, 788, 512 N.E.2d 309 (1987).
The significance of the limitation must be supported by credible
medical evidence and must be objectively measured
and quantified. Lanuto, 192 A.D.2d at 990, 596 N.Y.S.2d at 945.
Subjective complaints of pain, unsupported by credible medical
evidence, cannot form the basis of a significant limitation.
Scheer, 70 N.Y.2d at 679, 518 N.Y.S.2d at 788, 512 N.E.2d 309;
Patrello, 757 F. Supp. at 222; Yanez, 29 F. Supp.2d at 115.
In this case, there is no objective evidence of a significant
limitation. All diagnostic tests, including X-rays and MRIs,
showed no significant injury. Dellicarpini's treating physicians
did find some limitation in her range of motion in her neck;
however, these findings were based on her subjective responses
rather than objective criteria. (Saint-Phard Dep. at 19-22;
Westrich Dep. at 16-17.) In fact, when performing passive range
of motion tests, which are based on more objective criteria, both
doctors found no limitation in her range of motion. (Saint-Phard
Dep. at 21, 113-14; Westrich Dep. at 16-17, 28.) Furthermore, the
diagnosis of mild cervical mylagia, which is a soft-tissue neck
and upper shoulder strain, suggests that the injury is not
significant. See, e.g., Licari, 57 N.Y.2d at 239-40,
455 N.Y.S.2d 570, 441 N.E.2d 1088; Hemmes v. Twedt, 180 A.D.2d 925,
926, 580 N.Y.S.2d 510, 511 (3d Dep't 1992) (finding that a
chronic cervical strain is not a serious injury); Flater v.
Brennan, 173 A.D.2d 945, 569 N.Y.S.2d 808 (3d Dep't 1991)
(finding no significant limitation even when doctor used the word
"significant" to describe plaintiff's stiff neck injury). But
see, e.g., Bates v. Peeples, 171 A.D.2d 635, 636, 566 N.Y.S.2d 659,
660 (2d Dep't 1991). Therefore, plaintiff does not suffer
from a serious injury pursuant to this category of the No-Fault
3. Prevention of performing usual and customary activities
Plaintiff also cannot show that she was prevented from
performing substantially all of the material acts which
constitute her usual daily activities for at least 90 out of the
180 days after the accident. See Licari, 57 N.Y.2d at 237,
455 N.Y.S.2d 570, 441 N.E.2d 1088. Dellicarpini admits that, except
for missing one half day of work on the day of the accident, she
was able to perform all of her work and household-related
activities. Furthermore, her treating physicians never
recommended that she limit any of her activities. Therefore,
plaintiff cannot base her claim of serious injury on this
category of the No-Fault Law.
Because plaintiff cannot demonstrate that she suffered a
serious injury as required by the No-Fault Law, defendant's
motion for summary judgment is granted.