The opinion of the court was delivered by: John T. Curtin United States District Judge
Plaintiff Alesia Mueller commenced this action on December 13, 2007, by filing a summons and complaint in New York State Supreme Court, Erie County. She alleges she sustained "severe and serious personal injuries" in a motor vehicle accident which occurred on November 2, 2006, involving a tractor-trailer under the ownership and control of defendant Seatainer Transport, Ltd. ("Seatainer"), a Canadian corporation. Defendant removed the action to federal court pursuant to 28 U.S.C. § 1446 on March 14, 2008, invoking this court's diversity jurisdiction under 28 U.S.C. § 1332.
Following discovery, defendant moved for partial summary judgment on the ground that plaintiff has failed to establish a threshold case of "serious injury" as defined in New York's "no-fault" statute, N.Y. Ins. Law § 5102(d), barring her claim for recovery of damages based on non-economic loss (i.e., pain and suffering) (see Item 10). For the following reasons, this motion is denied.
As alleged in the complaint, on November 2, 2006, defendant's tractor-trailer collided with plaintiff's 1991 Buick on Interstate 290 in the Town of Amherst, New York, causing unspecified serious injuries and damages beyond basic economic loss (see Item 1-2). Plaintiff testified at her deposition that she was traveling at fifty-five miles per hour on I-290 when defendant's truck rear-ended her car four times before it passed her (Item 10-3, ¶¶ 2-6). She followed the truck to obtain the license number, then drove to the Amherst Police Department to report the incident (id. at ¶ 9). Seatainer's only driver in the area that day, Valkar Singh, testified at his deposition that he had no recollection whatsoever of having been involved in a motor vehicle accident on November 2, 2006 (id. at ¶ 7 and Ex. B).
After reporting the incident to the police, plaintiff drove to the Emergency Room at Kenmore Mercy Hospital, where she presented with left wrist and neck pain (see Item 10-8). X-rays were taken of her cervical spine and wrist, which revealed no acute pathology, fractures, or dislocations (id.). She went to see her primary care physician, Dr. Elizabeth Hatton, on Monday, November 6, 2006, complaining of neck pain radiating into her shoulder and arm (see Item 14-4). Upon examination, Dr. Hatton found plaintiff to have suffered neck strain, and prescribed Flexeril (a muscle relaxant), Ibuprofen as needed, physical therapy, and no work for the rest of the week (see id.).
On November 8, 2006, plaintiff went to see Dr. Julius Horvath, a chiropractor (see Item 14). Plaintiff reported sharp pain in her neck, right arm, right wrist, and mid- and lower back, along with headaches. Upon examination, Dr. Horvath found that plaintiff exhibited diminished and restricted range of motion in her cervical and lumbar spine (id. at ¶¶ 7-8). Dr. Horvath performed a series of tests, all of which were positive for increasing neck and lower back pain (id. at ¶ 9). He concluded that plaintiff was "temporarily totally incapacitated from her employment as an accounting clerk at AAA" (id. at ¶ 11). Dr. Horvath ordered an MRI of plaintiff's cervical spine, which was performed on December 11, 2006. The MRI report indicated a "loss of lordosis with kyphosis and scoliosis at multiple levels," along with bulging discs, disc protrusion, and minor spinal cord deformity (id. at ¶¶ 12-13). In Dr. Horvath's opinion, these findings "clinically correlate with her neck pain and limitations and headaches . . . and were caused by the motor vehicle accident of November 2, 2006." Id. at ¶ 14.
Dr. Horvath referred plaintiff to Dr. John Pollina of Buffalo Neurosurgery Group, who examined plaintiff on February 2, 2007. Dr. Pollina found some mild tenderness to touch in plaintiff's cervical spine area, and mild limitation of range of motion of her neck, but no limitation of the range of motion of her upper extremities (Item 12-6). His diagnosis was "dominant complaint of cervalgia secondary to her myofascial strain after being rear-ended four times by a semi." Id. He recommended that plaintiff continue chiropractic treatments and Ibuprofen, finding no need for surgical intervention. At plaintiff's request, Dr. Pollina "return[ed] her back to full work duty on Monday, 2/5/07." Id.
Plaintiff continued to see Dr. Horvath for chiropractic treatment approximately one to three times per week until March 5, 2008 (see Item 14, ¶¶ 11-19). In October 2008, she began treatment with Dr. David Ribakove at Elmwood Chiropractic, who saw her at fairly regular weekly intervals until May 2009 (see Item 12, Ex. G). She is currently treating with Dr. Gerald Peer for pain management (see id. at Ex. H).
Meanwhile, plaintiff filed this action in December 2007 alleging that, as a result of the collision with defendant's truck, she "sustained severe and serious personal injuries including a 'serious injury' and economic loss greater than 'basic economic loss' as defined by Article 51 of the New York Insurance Reparations Law . . . ." Item 1-2, Complaint, ¶ 17. Seatainer answered, specifically denying that the vehicle identified in the complaint was even in the United States on the date of the alleged accident (see Item 3, ¶¶ 7-12). The answer also set forth several affirmative defenses, including the defense that "[p]laintiff has not sustained a 'serious injury' as defined in Section 5102(d) of the Insurance Law of the State of New York." Id. at ¶ 23.
During discovery, plaintiff submitted to two independent medical examinations ("IMEs"). The first was performed on November 17, 2008, by Dr. John Ring, defendant's designated orthopedic expert. In his initial report dated that same day, Dr. Ring indicated that plaintiff suffered cervical strain, lower back strain, and a wrist contusion as a result of the November 2006 accident, but was able to work at her job with no restrictions and did not need orthopedic treatment (Item 10-17).
The second IME was performed on January 9, 2009, by Dr. Richard Cowan, defendant's designated neurological expert. Dr. Cowan's report was issued on March 9, 2009, following his review of plaintiff's complete hospital records which were delivered to defense counsel on February 23, 2009 (see Item 8). According to Dr. Cowan, during both her deposition and her IME, plaintiff denied involvement in any motor vehicle accidents prior to November 2006, but review of the hospital records revealed that she was treated at Kenmore Mercy for injuries sustained in two prior motor vehicle accidents, "one in 1997 that produced vaginal bleeding that threatened to abort a pregnancy, and one in 2000 following which she complained of neck pain and was brought to the [Emergency Department] on a stretcher in a cervical collar. It is not credible that [plaintiff] could have forgotten these dramatic events" (Item 10-16, p. 19). Dr. Cowan further concluded:
Taking account of all information available in medical and chiropractic records and the history I obtained and the physical examination I performed, I conclude that the [November 2, 2006] accident probably resulted in symptoms in the neck and wrists, symptoms for which physicians commonly use the words "strain" or "sprain," as they did in this case. . . . Symptoms at the wrists improved rapidly. Symptoms in the neck have persisted much, much longer than usual, but there is no objective evidence that demonstrates the reality of those symptoms. It is only [plaintiff]'s report that is evidence of their presence.
On February 24, 2009, following his review of plaintiff's hospital records, Dr. Ring issued an addendum to his ...