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Emese M. Varga v. Rent-A-Center East

June 13, 2012

EMESE M. VARGA, PLAINTIFF,
v.
RENT-A-CENTER EAST, INC., DEFENDANT



The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Currently before the Court are Plaintiff's motion to strike Defendant's affirmative defense of nonuse of a seatbelt and Plaintiff's motion to exclude the opinions and testimony of Defendant's two biomechanical experts.

II. BACKGROUND

On April 29, 2010, at the intersection of State Highway 206 and County Route 17, in the Town of Bainbridge, New York, Plaintiff was in a motor vehicle accident. At the time of the accident, Plaintiff had been operating her 1994 Subaru Legacy eastbound on State Highway 206, when it was caused to collide with Defendant's Chevrolet box truck, which had been proceeding southbound on County Route 17.

As a result of the accident, Plaintiff contends that she sustained serious physical injuries, including, among other things, a comminuted fracture of the right ankle, a comminuted fracture of the right distal tibia, an intra-articular fracture of the right medial malleolus, a fracture of the right posterior malleolus, a fracture of the right fibula, a comminuted fracture of the right patella requiring surgery with open reduction and internal fixation, multiple left rib fractures, a left-sided pleural effusion requiring the insertion of a chest tube, and a subarachnoid hemorrhage.

On May 13, 2010, Plaintiff commenced this personal injury action. On June 8, 2010, Defendant filed its answer, in which it asserted nonuse of a seatbelt as an affirmative defense.

III. DISCUSSION

A. Plaintiff's motion to strike Defendant's affirmative defense

In its answer, Defendant's Fourth Affirmative Defense reads as follows: "That the plaintiff was not wearing a seat belt at the time of the alleged occurrence and accordingly, any award made to and accepted by said plaintiff for injuries set forth in the complaint must be reduced in such proportion to the extent that the injuries complained of were caused, aggravated or contributed to by plaintiff's failure to wear a seat belt and to have same operational at the time of the occurrence." See Dkt. No. 5 at 4. Plaintiff claims that the Court should strike this affirmative defense because she has been exempt from the requirement to wear a seat belt since 2001 due to a physically disabling condition. See Dkt. No. 32 at 6.*fn1

Federal Rule of Civil Procedure 12(f) permits the court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). Motions to strike affirmative defenses are generally disfavored. See, e.g. MTA Metro--North R.R. v. Buchanan Marine, No. 3:05--CV--881, 2006 WL 3544936, *3 (D. Conn. Dec. 8, 2006) (citing William Z. Salcer, Panfeld, Edelman v. Envicon Equities, 744 F.2d 935, 938-39 (2d Cir. 1984), vacated on other grounds, 478 U.S. 1015 (1986)).

Courts in the Second Circuit have adopted a three-part analysis in determining whether to grant a motion to strike an affirmative defense. "'Plaintiffs must establish that: (1) there is no question of fact which might allow the defense to succeed; (2) there is no question of law which might allow the defense to succeed; and (3) the plaintiff would be prejudiced by inclusion of the defense.'" Marshall v. New Horizons, No. 3:08--CV--633, 2009 WL 2983169, *1 (D. Conn. Sept. 14, 2009) (quotation omitted); see also Texas 1845 LLC v. Wu Air Corp., No. 11-CV-1825, 2012 WL 382828, *6 (E.D.N.Y. Feb. 6, 2012) (quotation omitted).

In the present matter, Plaintiff argues that the Court should grant its motion to strike Defendant's Fourth Affirmative Defense because New York's Vehicle and Traffic Law excuses an occupant of a vehicle from wearing a seatbelt if the occupant has a physically disabling condition which has been duly certified by a physician.

Plaintiff is correct that an exception applies to New York's general requirement that a motor vehicle's driver must use a safety belt while operating the vehicle. See N.Y. Veh. & Traf. Law § 1229-c(7). Specifically, this exclusion provides that New York's general safety belt requirement "shall not apply to a passenger or operator with a physically disabling condition whose physical disability would prevent appropriate restraint in such safety seat or safety belt provided, however, such condition is duly certified by a physician who shall state the nature of the handicap, as well as the reason such restraint is inappropriate." Id.*fn2

In support of her motion, Plaintiff contends that she had a note from her doctor which satisfied the statute's requirements, but that this note was in the glove compartment of her vehicle which was totaled in the accident. Therefore, at Plaintiff's request, Plaintiff's treating physician drafted a document entitled "Certification," which provides as follows: "Ms. Varga has a physically disabling condition, that is post herpetic neuralgia. This condition existed on 4/29/10. The use of a safety belt restraint is inappropriate for Ms. Varga due to the pain that would result from such use as a result of Ms. Varga's post herpetic neuralgia condition." See Dkt. No. 33-7. This "Certification," however, was not sworn under penalty of perjury, notarized, or even dated. See 28 U.S.C. § 1746; Link Treasure Ltd. v. Baby Trend, Inc., 809 F. Supp. 2d 1191, 1195 (C.D. Cal. 2011). Further, Dr. Butt failed to state how he has knowledge of Plaintiff's alleged disabling condition or whether he had "duly certified" her condition at the time of the accident. See Link Treasure Ltd., 809 F. Supp. 2d at 1195.

In an earlier letter from Dr. Butt to Plaintiff's attorney, Dr. Butt informed counsel that Plaintiff was issued a note to exempt her from wearing a safety belt "some time ago in 2009," but states that, "[u]nfortunately, the copies are not available." See Dkt. No. 33-6 at 4. This letter, again, is not sworn under penalty of perjury or notarized, and ...


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