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LaSante v. Ackley

September 1, 2010

MELINDA M. LASANTE, PLAINTIFF,
v.
JOHN D. ACKLEY, DEFENDANT.



MEMORANDUM-DECISION AND ORDER

Plaintiff Melinda M. LaSante ("Plaintiff") commenced the present action on July 10, 2008. Compl. (Dkt. No. 1). Plaintiff, a citizen of Vermont, alleges that Defendant John D. Ackley ("Defendant"), a citizen of New Jersey, negligently drove an automobile on Interstate 87 in the Town of Colonie, New York, and caused his vehicle to collide with Plaintiff's stopped vehicle. Id. ¶¶ 3-5. This Court has jurisdiction over the action pursuant to 28 U.S.C. § 1332 based on the parties' diversity and amount in controversy. Presently before the Court is Defendant's Motion seeking summary judgment and dismissal of Plaintiff's Complaint. Dkt. No. 22. For the reasons that follow, Defendant's Motion is granted.

I. BACKGROUND

The undisputed relevant facts are as follows: On July 17, 2005 at approximately 4:30 p.m. Plaintiff and Defendant were operating their respective vehicles on Interstate 87 in a southbound direction in the Town of Colonie, New York. Statement of Material Facts (Dkt. No. 22-1) ("SMF")

¶ 1. Defendant struck Plaintiff's vehicle when the vehicle in front of him swerved suddenly to the side. Id. ¶ 3. No traffic violations were issued by the responding officer. Id. ¶ 3.

Following the accident, Plaintiff rented a car at the Albany International Airport to continue her trip to New York City. Id. ¶ 3. Plaintiff claims that she woke up in pain the day after the accident. Id. ¶22. Plaintiff spent two nights in New York City and returned to Vermont on July 19, 2005. Id. ¶ 4. Plaintiff again returned to New York State on July 20, 2005 to drive her friend to Albany International Airport. Id. at ¶¶ 23-24.

On July 22, 2005, Plaintiff saw Dr. Maurice Cyr, a chiropractor, for the first time. Id. ¶ 56. According to Dr. Cyr, Plaintiff's pain began in the left shoulder and "then spread to the entire back, more left sided than right sided." Cyr Aff. (Dkt. No. 28-1) ¶ 3. Dr. Cyr treated Plaintiff with a combination of "spinal and nonspinal manipulation and muscle therapies." Id. ¶ 5. Plaintiff has never sought treatment with a medical doctor for her claimed injuries. SMF ¶54.

In August of 2005, Plaintiff drove herself to Rochester, New York where she temporarily resided. Id. ¶ 61. On August 2, 2005 Plaintiff began treating with another chiropractor, Scott Coykendall, P.C.. Id. ¶ 71. Plaintiff reported no significant improvement with her pain during the period she was treated by him, ending on August 15, 2005. Id. ¶ 73.

Plaintiff then moved to California and began treatment with another chiropractor, Dr. Ringer, beginning September 7, 2005 and continuing until January 18, 2006. Id. ¶ 76. Dr. Ringer treated Plaintiff with electrodes about 3 times per week, which Plaintiff noted improved her condition "slightly to moderately." Id. at ¶¶ 77-79. Plaintiff returned to Vermont in the spring of 2006. Id. ¶ 33.

On June 28, 2006 Plaintiff had an MRI taken at the Rutland Regional Medical Center in Rutland, Vermont. Id. ¶ 80. The MRI report states that "the lumbar vertebrae are normal in height and signal." Id. ¶ 80. The report notes a significant degenerative disc change at L4-5, no evidence of herniation, and no evidence of neural compromise. Id..

Plaintiff treated with a physical therapist at Morris Physical Therapy P.C. on April 26, 2007. Id. ¶ 89. The treatment records state that Plaintiff showed full range of motion and note that her lumbar screen was normal. SMF at ¶¶ 89-90.

On January 21, 2008, Plaintiff had another MRI taken of her sacrum, pelvis, and lumbar spine. The MRI report states that "the sacrum and sacroiliac joints appear normal," and that there were "[n]o masses, bony destruction or significant arthropathic changes." Id. at ¶ 84. Significant degenerative disc changes were found at L4-5 and there was no evidence of disc herniation. Id. ¶ 85. Compared to the MRI results of June 28, 2006, there was "little or no interval change." Id. On May 5, 2008 Plaintiff underwent another MRI, this time of her cervical spine. The MRI report indicates "there is no evidence for syrinx or Chiari malformation." Id. ¶ 87. While a protuberant disc was observed at C5-6, it was attributed to degenerative changes. Id.

At the request of Defendant, Dr. Bryan S. Bilfield performed an independent orthopedic examination of Plaintiff on December 3, 2009. Id. at ¶¶ 92-93. Dr. Bilfield observed no "atrophy of the lower extremeties by direct measurement and no tenderness to palpitation over the lumbar spine." Bilfield Aff. (Dkt. No. 22-15) ¶ 11. Dr. Bilfield observed a "mild" limitation of Plaintiff's range of motion. Id. After examining Plaintiff's MRI results, Dr. Bilfield found no evidence of neural root compromise or disc herniations. Id. ¶ 23. Dr. Bilfield did, however, opine that the MRI results revealed degenerative disc disease at L4-5. Id. In Dr. Bilfield's opinion, there are no objective abnormalities or neurologic findings that explain Plaintiff's subjective complaints of pain. Id. ¶ 14. Furthermore, Dr. Bilfield believes that Plaintiff's degenerative disc disease at L4-5 "developed over time and likely pre-existed the accident." Id.

Dr. Cyr opines that Plaintiff's injuries meet the statutory threshold for "serious injuries" under New York State Law, but he does not state the rationale for this conclusion. Cyr Aff. ΒΆ 6. The only evidence Dr. Cyr cites in support of this conclusion is that he observed ...


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