The opinion of the court was delivered by: John T. Curtin United States District Judge
This action was originally filed in New York State Supreme Court seeking damages for personal injuries allegedly sustained by plaintiff George Chase as a result of an automobile accident involving a vehicle driven by defendant Sadir Allawi. The case was removed to this court pursuant to 28 U.S.C. § 1446 based on diversity of the citizenship of the parties. After substantial discovery, and following a settlement conference conducted by United States Magistrate Judge Leslie G. Foschio, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff has failed to meet the threshold requirements for establishing "serious injury," as defined by New York Insurance Law § 5102(d). For the reasons that follow, defendant's motion is denied.
As alleged in the two-page complaint, on December 25, 2005, plaintiff was driving on Summit Street in Lockport, New York, when his car was struck by a sport utility vehicle operated by defendant. Plaintiff claims that the collision caused serious injury to his spine, requiring surgery (see Item 1, Ex. B).
As reflected in the affidavit (Item 35) and narrative report (id., Ex. C) of plaintiff's treating orthopedic surgeon, Dr. Andrew Cappuccino, plaintiff initially refused treatment at the accident scene, but was taken to the Lockport Memorial Hospital emergency room by a family member later that evening when he noted increasing back pain. He was evaluated, treated with pain medication, and released (see Item 35, Ex. C).*fn1
He was seen by his primary care physician, Dr. B. Eun Lee, over the course of the next few days, and was sent for X-rays and an MRI of the lumbar spine, which revealed a compression fracture of the L1 vertebra "of indeterminate age" (see id., Ex. F). Dr. Lee referred plaintiff to Dr. Cappuccino, who began treating plaintiff in January 2006. Plaintiff, who was 41 years old at the time of the accident, reported that he injured his back in a fall from a ladder in 1982 (when he was 17 years old), and was treated conservatively in a brace for a fracture of the T12 vertebral body and anterior compression at L1. He wore the brace for two months, returned to work unrestricted, and has worked at manual labor jobs since then with no evidence of deficiency (see id., Ex. C).
Upon examining plaintiff and reviewing the initial MRI, Dr. Cappuccino's impression was post-traumatic, motor vehicle-acquired compression deformity at L1-L2, with kyphotic deformity, as well as suspected spinal canal stenosis and thoracic disc dysfunction. He recommended immobilization in a Jewett brace, MRI of the thoracic spine, and temporary total disability from work. The MRI, which was performed on January 27, 2006, revealed central disc protrusions at T7-T8, T8-T9, T9-T10, T10-T11, and T11-T12, which Dr. Cappuccino found to be causally related to the December 2005 accident given the absence of a prior history of thoracic spine dysfunction (see Item 35, ¶ 10). Follow-up visits and further diagnostic radiography revealed persistent, progressive pain and instability in his back, left buttock, and left thigh with no substantial evidence of healing three months post-injury. The options of continued conservative treatment, surgical stabilization, and reconstruction were discussed in depth during the follow-up visit in March (see id., Ex. C).
On April 24, 2006, plaintiff contacted Dr. Cappuccino's office indicating his desire to proceed with elective surgical stabilization due to persistent unresolved pain. As documented in his office notes (id., Ex. B) and operative reports (id., Exs. D, E), Dr. Cappuccino discussed with plaintiff at length the risks and benefits of surgical intervention involving realignment, decompression, and stabilization in a two-stage procedure. Stage One was performed on April 26, 2006, and Stage Two was performed on May 17, 2006. Regular post-operative follow-up indicated slow but steady progress, and in August 2006 plaintiff was referred to a course of physical and occupational therapy and pain management.
Plaintiff was last seen by Dr. Cappuccino in January, 2008, "over 1 1/2 years status post major thoracolumbar partial corpectomy and interbody fusion with instrumentation T12 through L2," at which time plaintiff was "doing fairly well." Id., Ex. B. As reported by Dr. Cappuccino:
At this time it is our feeling that George has reached maximum medical improvement from the aforementioned surgical repair. He does remain at this point with a permanent, marked degree of disability overall in addition to a permanent, total degree of disability from his prior occupation, all of which is causally related to this motor vehicle accident which transpired on 12/25/05.
Meanwhile, this action was filed in state court on September 28, 2006, seeking unspecified damages for "serious injury as defined under New York State Insurance Law § 5102(d)." Item 1, Ex. B, ¶ 4. During discovery, plaintiff submitted to an independent medical examination ("IME") performed on defendant's behalf by Robert M. Lifeso, M.D., F.R.C.S.C., F.A.C.S., a physician and orthopedic surgeon. Based on this examination, as well as his review of the diagnostic films, reports, and other medical records--including the records pertaining to treatment for the compression fracture at T12 and L1 sustained by plaintiff in 1982--Dr. Lifeso submitted an affidavit stating, among other things, the following opinions:
* Plaintiff suffered no spinal injuries in the December 25, 2005 accident.
* The compression fracture of plaintiff's L1 vertebra indicated by the December 2005 X-ray and MRI was pre-existing, traceable to the fall from the ladder in 1982.
* The fracture was fully healed and solidly united prior to the motor vehicle accident and did not ...