New York, N.Y. (October 8, 2025) Summary: First Time for Everything: LBBS won summary judgment in a trucking accident by successfully arguing threshold in a case where the plaintiff underwent three surgeries including a lumbar fusion, cervical fusion, and a shoulder surgery.
Lewis Brisbois will present a webinar on Winning Threshold Motions in Motor Vehicle Cases Involving Surgeries Including Fusions in New York on November 13, 2025 at 3:00pm EST. We will follow up with invites.
OVERVIEW
Lewis Brisbois successfully argued in a case pending in Federal
Court that the plaintiff’s injuries – which included
two fusion surgeries and a shoulder surgery – did not fit
within the statutory definition of a “serious injury"
and the court ultimately dismissed the entire case.
The purpose of New York’s threshold law is to weed out
frivolous BI claims and limit recovery only in those cases where a
plaintiff sustains a "serious injury." New York Insurance
Law §5012(d) lists categories which meet the statutory
definition of a “serious injury”.
In the subject case, the three categories that were at issue were
whether the plaintiff suffered: (i) a “permanent
consequential limitation of use of a body organ or member”;
(ii) a “significant limitation of use of a body function or
system”; or (iii) a “medically determined injury or
impairment of a non-permanent nature which prevents the injured
person from performing substantially all of the material acts which
constitute such person’s usual and customary daily activities
for not less than ninety days during the one hundred eighty days
immediately following . . . the injury” (commonly known as
the “90/180” category).
In the U.S. District Court for the Southern District of New York,
Judge Mary Kay Vyskocil agreed with Lewis Brisbois’ arguments
that the plaintiff’s alleged injuries preexisted the subject
accident and, therefore, were not caused by the accident. Indeed,
Judge Vyskocil held in her well-reasoned 15-page decision that,
despite the plaintiff having had three surgeries, including a
fusion in her cervical spine, a fusion in her lumbar spine, and a
surgery on her left shoulder, she failed to meet the standards of a
“serious injury” defined under New York’s
threshold statute. The defendants argued, amongst other things,
that the plaintiff’s surgeries were related to preexisting
and degenerative conditions and not the accident in question.
LITIGATION
On January 11, 2023, the plaintiff was driving when her vehicle
came into contact with the defendants’ vehicle in a sideswipe
accident. As a result of the impact, the plaintiff testified that
she hit her neck and back on her headrest and seat, and her
shoulder struck some part of the interior of the car. Three months
after the accident, the plaintiff underwent a cervical fusion
surgery. Six months after the accident, she underwent a lumbar
fusion surgery. And seven months after the accident, the plaintiff
underwent surgery to her left shoulder.
In support of the defendants’ motion, Lewis Brisbois retained
medical doctors to carefully look through all the plaintiff’s
medical records and MRI films, evaluate the plaintiff and her
injuries and determine whether the injuries were degenerative or
pre-existing. In addition, Lewis Brisbois hired a biomechanical
expert to explain the kinematics of the plaintiff’s injuries,
how the plaintiff’s body would move inside the car she was
in, and what conclusions could be drawn based on how the accident
occurred, including the speed of the accident, and whether, from a
biomechanical perspective, the plaintiff’s claimed injuries
could or could not have been caused by the accident. We also used
strong written doctor affidavits to support our position that the
plaintiff’s injuries do not satisfy New York’s
threshold statute.
Judge Vyskocil’s decision found that the expert opinions
given by the defendants’ doctors made clear that
“Plaintiff’s injuries were not caused by the accident,
but rather were the result of pre-existing degenerative
conditions.” Among other things, the plaintiff’s MRIs
taken weeks after her accident established degenerative changes in
both regions of the plaintiff’s spine. Those opinions
themselves were deemed by Judge Vyskocil “to carry
Defendants’ initial burden of coming forward with persuasive
evidence that all of Plaintiff’s alleged serious injuries
were due to pre-existing degenerative conditions and not causally
related to the accident.” In response to the defendants
meeting their initial burden, Judge Vyskocil noted that the
plaintiff was responsible to come forward with proof that
plaintiff’s alleged injuries were causally related to the
accident.
In reviewing the testimony of the plaintiff’s experts and
treating physicians, Judge Vyskocil noted that the
plaintiff’s doctors “merely pepper their medical
records or reports with conclusory statement that do not provide
further explanation or analysis to support [Plaintiff’s
doctors’] conclusions as to causation.” In no uncertain
terms, Judge Vyskocil held that the plaintiff’s
doctors’ “conclusory statements are plainly
insufficient to defeat Defendnats’ motion for summary
judgment.” The court held that the plaintiff’s doctors
provided no support to rebut the degenerative conditions pointed to
by the defendants’ doctors – an issue which Lewis
Brisbois pointed to extensively in both their opening motion papers
and in reply to the opposition submitted by plaintiff’s
counsel.
TAKEAWAY
This is the second win by Lewis Brisbois in 2025 in which a matter
was dismissed on a summary judgment motion in federal court where
it was argued that the plaintiff did not sustain a “serious
injury” despite having surgery. Another case was dismissed in
the U.S. District Court for the Eastern District of New York and
was affirmed on appeal to the U.S. Court of Appeals for the
Second Circuit. In that case, the plaintiff had a shoulder
surgery.
Very often plaintiff’s counsel – and some
defendant’s counsel – take the position that when a
plaintiff has surgery, there can be no viable grounds for the
granting of a summary judgment motion made pursuant to New York
Insurance Law §5102(d). That is not the case, as evidenced by
Judge Vyskocil’s decision. With the right questioning at the
plaintiff’s deposition, and with the proper retention of
highly credentialed experts, threshold motions similar to the one
in this instance can be won. Lewis Brisbois takes a very aggressive
approach on this issue, and as seen in this case, among others, we
can successfully obtain dismissal of lawsuits despite the plaintiff
having had multiple surgeries (in those cases that cannot be
resolved on favorable terms).
Lewis Brisbois will present a webinar on Winning Threshold
Motions in Motor Vehicle Cases Involving Surgeries Including
Fusions in New York on November 13, 2025 at 3:00pm EST. We will
follow up with invites.