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September 17, 2001


The opinion of the court was delivered by: William C. Conner, Senior District Judge.


On July 23 and July 25, 2001, this Court conducted a bench trial. Because defendant conceded liability prior to trial, the only issues before us concern whether Bellantoni and Mastrantuono incurred a "serious injury" as defined under N.Y.Ins.Law §§ 5101-08 ("No-Fault Law"), and, if so, the extent of such injury and the appropriate damages therefor. For the reasons stated hereinafter, we enter judgment in favor of Bellantoni in the amount of $100,000, in favor of Mastrantuono in the amount of $150,000 and in favor of Juan Mastrantuono in the amount of $50,000. Pursuant to FED.R.CIV.P. 52(a), we set forth below our findings of fact and conclusions of law.


At approximately 2:30 p.m., on November 8, 1997, Bellantoni's car was stopped at a red light at the intersection of Route 9D and Verplank Avenue in Beacon, New York. Her mother, Mastrantuono, was the front-seat passenger. (Tr. at 4-5.) Bellantoni's car was struck in the rear by a tow truck driven by United States Postal Service employee Harold Holmes, who was acting within the scope of his employment. Bellantoni's car was knocked forward and struck the automobile in front of hers. (Stmt. Agreed Facts ¶¶ 5-8; Tr. at 4-7.)

Although they were wearing their seat belts at the time of the collision (Tr. at 7, 66, 106), both women were jerked backward, forward and backward again by the impact. (Tr. at 8, 68.) Bellantoni's chest hit the steering wheel and Mastrantuono's head hit and cracked the dashboard. (Tr. at 8, 68, 107.) The rear window of the car was shattered, the headlights and taillights were broken and the bumper was damaged. (Tr. at 34, 69.) There was no substantial damage to the third car and its occupants, a woman and children, who appeared uninjured and unconcerned. (Tr. at 45, 108.) Although there were no post-accident photographs of her automobile, Bellantoni testified that the repairs to it cost approximately $2,300. (Tr. at 34-35, 46, 107.)

A. Bellantoni

At the scene of the accident, Bellantoni complained of lumbar and cervical pain. (Tr. at 10.) For her protection, she was transported to the emergency room on a stretcher and with a neck collar. (Id.) She remained at the hospital for approximately 4 to 5 hours, during which time she underwent cervical and lumbar x-rays and a cervical CT-scan. (Tr. at 11.) The results indicated that she did not suffer any fracture, but rather a sprain. (Tr. at 11-12.) She was given an unspecified pain medication plus aspirin and advised to follow up with her primary care physician. (Tr. at 12.)

Heeding this advice, Bellantoni sought medical assistance from two primary care physicians, Drs. Robert Kaplan and John Supple, and a neurologist, Dr. Chan Soo Park, to whom she complained of neck, back and lower extremity pain. (Tr. at 12-15, 54.) Each of the doctors described Bellantoni's injuries as either a strain or a sprain. Drs. Kaplan and Supple prescribed some muscle relaxers; Dr. Park provided no medical treatment. (Tr. at 13-15, 54; Def.Ex. N.)

The only information Bellantoni disclosed to Dr. Peress about her medical history concerned the November 8, 1997 accident and a prior back injury she sustained in 1996. (Tr. at 199-200, 246; Def. Ex. B-1.) Bellantoni, employed as a housekeeper at the Residence Inn, twisted her back while lifting a vacuum cleaner. (Tr. at 52-53.) Although she did not consider this to be a serious injury, she missed approximately 1 to 2 weeks of work thereafter. (Id.; Def.Ex. B-1.)

At the initial visit, Dr. Peress determined that Bellantoni had a focal area of tenderness in the mid-cervical spine region that became aggravated by extension maneuvers, bilateral flexion and rotation. (Tr. at 201; Def.Ex. B-1.) No pain radiated from the thoracic spine region and she had a positive straight leg raise on the right side. (Id.) Although his initial impression, based exclusively on his physical examination and without x-rays or MRIs, was a possible derangement of the cervical and lumbar regions (Tr. at 234),*fn1 Dr. Peress recommended one month of physical therapy for what he described as "cervical whiplash and lumbosacral sprain." (Tr. at 257-58; Def.Ex. C-1.) Bellantoni attended five physical therapy sessions from which she found no relief. (Tr. at 47-48; Def. Ex. C-2.) Dr. Peress did not recommend any further therapy. (Tr. at 202.)

On December 10, 1997, Bellantoni underwent cervical x-rays that showed loss of lordosis or straightening of the cervical curvature. (Tr. at 201, 282; Def.Ex. JJJ-1.) Dr. Daveed D. Frazier, defendant's expert witness, explained that the normal curvature of the neck is within a range of 20 to 45 degrees. (Tr. at 282.) The December 10, 1997 x-rays reportedly showed curvature of approximately 6 degrees, placing Bellantoni's deficiency of lordosis at some 14 degrees. (Tr. at 282-84.) On January 21, 1998, Bellantoni underwent an MRI of the cervical spine which showed no disc herniation or any other significant abnormality. (Tr. at 203; Def.Ex. B-1.) Although the radiologist's report on the January 21, 1998 cervical MRI stated that there was some straightening of the cervical spine and associated mild degenerative disc disease (id.), Dr. Frazier testified that the radiologist's report is unreliable. (Tr. at 317-18.) He based his conclusion on the fact that the radiologist made a generalized statement apparently without any actual measurement of lordosis. (Tr. at 318.) In any event, Dr. Frazier concluded that the January 21, 1998 cervical MRI showed that Bellantoni's neck curvature was then 23 degrees, placing it within the normal range. (Tr. at 282-84; Def.Ex. III-3.)

In March 1998, Dr. Peress began the first of four cervical and three lumbar epidural steroid facet injections, i.e., injections of steroids into the vertebral joints. (Tr. at 206-07.) Because neither the x-rays nor the MRIs detected any significant abnormalities in the cervical region, the initial cervical injections had to be administered in an arbitrary region (Tr. at 203, 236), the first in the C-3/C-4 area, and all subsequent injections in the C-4/C-5 region. (Tr. at 222.)

In 1998, Dr. Peress diagnosed Bellantoni with cervicocranial syndrome, cervical and lumbar instability syndromes and cervical and lumbar radiculitis. (Tr. at 203, 205, 235; Def.Ex. B-1.) Dr. Peress admitted that these are subjective diagnoses that do not reflect any objective abnormalities, but rather is clinical evaluations and the patient's complaints. (Tr. at 216, 235-39.) The diagnosed instabilities are not apparent on any x-rays, MRIs or CT-scans. (Tr. at 232, 235-39.) However, on April 13, 1998, Dr. Peress's office notes indicate "restricted movement on forward bending to 60 degrees" and on October 19, 1998, they indicate flexion only to 70 to 80 degrees without pain. (Def.Ex.B-1.) His July 6, 1998 medical report indicates positive straight leg raises. (Id.)

On July 29, 1998 and October 21, 1999, Dr. Peress gave Bellantoni lumbar epidural injections at the L-5/S-1 region, located in the lower back above the pelvis. (Tr. at 240; Def.Ex. GGG-1.) Nevertheless, her chronic leg and back pain persisted. Therefore, on March 14, 2000, Dr. Peress recommended that Bellantoni undergo Intradiscal Electrothermal Therapy ("IDET"). (Tr. at 207; Def.Ex. B-2.) The IDET stabilizes unhealthy discs by modifying the molecules of protein fibers. It is an invasive out-patient procedure in which a needle is inserted into the disc and heated to 90° Celsius. (Tr. at 214-15, 298.) Essentially, when the stretched or torn disc fibers are heated, they contract and provide more restraint, thereby alleviating any pain in that area. (Id.) Generally, the patient is awake to inform the doctor whether the generated heat is too intense. (Tr. at 215.)

However, before an IDET procedure is performed the pain source must be located. (Tr. at 208.) On April 12, 2000, Dr. Peress administered a discogram. (Id.) This is a two-stage process in which the patient is awake, but slightly sedated. As Dr. Peress testified, the "more critical and important part of the dis[c]ogram . . . [is] the pain provocation testing." (Id.) With a small syringe, contrast liquid is injected into the center of the discs. Dr. Peress then pressurizes both healthy and suspicious discs by pushing his thumb against the discs and assessing the patient's pain responses. Unhealthy discs will produce pain when the pressure is increased. (Tr. at 208-09.) During the second part of the procedure, CT-scans are taken of the liquid-filled discs to assess the discs' inner structures. (Tr. at 208, 210-13.)

Dr. Peress suspected that the pain source was the L-5/S-1 region. (Tr. at 209.) However, when he applied pressure against discs located at the L-3/L-4, L-4/L-5 and L-5/S-1 regions, it did not produce the expected pain response. (Id.) Therefore, Dr. Peress tested discs located in the upper spine, the T-12/L-1, L-1/L-2 and L-2/L-3 regions. (Tr. at 209-10.) When he pressurized the L-2 and L-3 discs, pain reportedly radiated down to Bellantoni's feet. (Tr. at 210.) Because the generated pain was similar to Bellantoni's symptoms, a concordant response, Dr. Peress concluded that the L-2/L-3 disc was the pain source. (Id.)*fn2 To the contrary, defendant's expert, Dr. Frazier, testified that pressure on the L-2/L-3 region does not produce pain in the feet. (Tr. at 290-91.) Instead, the nerves emanating from the L-5/S-1 and S-1/S-2 regions of the lower lumbar spine innervate the feet. (Tr. at 291.) The nerves at L-1/L-2 and L-2/L-3 innervate the groin and thighs. (Id.) To illustrate these relationships, Dr. Frazier provided a chart showing the discs and the loci of the pain produced by their respective derangement.

The CT-scans of the liquid-filled discs bolstered Dr. Peress's conclusion. The CT-scan showed a small white line outside the center of the L-2/L-3 disc. (Tr. at 211.) Dr. Peress testified that this outside line was significant. (Tr. at 212-13.) Thus, in his opinion, both components of the discogram showed injury to the L-2/L-3 disc (Tr. at 212), and, as a result, the IDET was administered to the L-1/L-2 and L-2/L-3 discs. (Tr. at 260; Def.Ex. B-2.) However, in June 2001, Dr. Peress administered the next lumbar epidural injection in the L-5/S-1 region. (Tr. at 240.) Dr. Peress proffered no reason why he administered this injection in the lower region instead of the L-2/L-3 region, which he had concluded to be the pain source.

Dr. Peress testified that he recommended the IDET procedure because a previous lumbar MRI showed some mild disc herniation or bulging at the L-5/S-1 region. (Tr. at 207.) Because the bulging was not causing any pressure on the nerves, removal was unnecessary. (Id.) Dr. Peress also testified that he suspected the L-5/S-1 disc to be the pain source because of Bellantoni's symptoms and the MRI "that showed that out of all of the lumbar dis[c]s, the only abnormality would be at the outer most dis[c]." (Tr. at 209.)

We are puzzled by this testimony. The record is devoid of any evidence that a lumbar MRI was administered prior to the April 2000 discogram and IDET procedures. The only lumbar MRI shown in the medical records was administered on September 22, 2000. (Tr. at 237-42; Def. Ex. EEE.) Therefore, Dr. Peress's recommendation to undergo invasive treatment was based solely on Bellantoni's subjective complaints and the epidural injections. Moreover, Bellantoni's complaints of her back were inconsistent. (Tr. at 294.) On March 1, 1999, she complained of pain when she extended, i.e., leaned backward, but several weeks later, on April 26, 1999, she complained of pain when she flexed, i.e., leaned forward. (Tr. at 294-96; Def. Ex. B-1.) Because the apparent pain source was alternating, Dr. Frazier concluded that the results were inconsistent and that invasive treatment should not have been recommended. (Tr. at 296.)

The September 22, 2000 lumbar MRI showed "no disc herniation, foraminal narrowing, or spinal stenosis." (Tr. at 239-40; Def.Exs. M, EEE.) Although it showed "[m]inimal disc bulge at the L-5/S-1" region and "[v]ery early degenerative disc disease with slight prominence of the lumbar lordosis," Dr. Peress admitted that he could not decipher whether it was an "acute tear or relaxation over time." (Tr. at 261.) Dr. Frazier also testified that the abnormality of the L-5/S-1 disc is present in 30-40% of the population below the age of 40. (Tr. at 281.) An October 4, 2000 thoracic MRI, which Dr. Peress described as a negative study, also did not indicate any possible injuries. (Tr. at 240; Def.Ex. M.)

Moreover, no discogram was performed on the C-4/C-5 region. (Tr. at 222.) Dr. Peress's conclusion of permanent derangement in the C-4/C-5 region is based on the fact that the first cervical epidural injection facet block, which did not alleviate Bellantoni's migraines, was administered to the C-3/C-4 region, whereas all subsequent blocks, which did alleviate her pain, were administered to the C-A/C-5 region. (Id.) Dr. Peress also based his conclusion on the fact that 85% of his patients involved in similar motor vehicle accidents have suffered derangements in the C-4/C-5 region. (Id.) To the contrary, Dr. Frazier testified that the most common pain source is either the C-5/C-6 or C-6/C-7 level, located just above the thoracic spine where the neck is more likely to bend. (Tr. at 289-90.) In ...

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