New York Team Secures Big Win in Second Circuit Affirming Dismissal of Plaintiff’s Complaint Under New York’s Threshold Law

New York, N.Y. (April 1, 2025) - In a significant opinion issued on March 31, 2025, the U.S. Court of Appeals for the Second Circuit held that the plaintiff’s injuries, which included shoulder tears with arthroscopic surgery following a rear-end collision accident and lumbar spine herniations with injections, could not be considered “serious injuries” as defined by New York Insurance Law §5102(d) (the “threshold law”).

In the District Court level, the Hon. Rachel Kovner of the U.S. District Court for the Eastern District of New York, in a 27-page decision, dismissed all the plaintiff’s claims, holding that the injuries alleged by the plaintiff could not be considered “serious injuries”. 

The purpose of New York’s threshold law is to weed out frivolous third-party claims and limit recovery to significant injuries. 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.”

During the litigation, Lewis Brisbois hired a medical doctor to carefully review all the plaintiff’s medical records, evaluate the plaintiff and his injuries, and come to a conclusion as to whether the plaintiff’s injuries were degenerative, pre-existing and not related to this accident. Lewis Brisbois also hired a biomechanical expert to dissect the kinematics of the plaintiff’s alleged injuries, how the plaintiff’s body would move inside the car he was in, and what conclusions can be drawn based on how the accident occurred, the speed of the accident, and whether, from a biomechanical perspective, if the plaintiff’s claimed injuries could or could not have been caused by the impact of the accident. The biomechanical expert concluded that, given the slow speed of the accident and the fact that plaintiff was a belted passenger, there was no causation between the minor low speed rear end accident - which caused minimal damage to plaintiff’s vehicle and the plaintiff’s alleged injuries and resulting surgery.

Regarding the plaintiff’s experts, the Second Circuit pointed to the fact that the plaintiff’s own doctors did not fully consider all the plaintiff’s medical records, and further pointed to the fact that the plaintiff’s medical doctors offered conclusory statements as to causality, merely stating that in their medical opinion, “within a reasonable degree of medical probability,” they believe the accident caused the injuries suffered by the plaintiff. The Lewis Brisbois team successfully argued these conclusory medical conclusions were not linked to, nor supported by, nor referenced to, any medical records from any of plaintiff’s medical charts. In contrast, the expert retained by Lewis Brisbois pointed to the MRI’s and X-rays of the plaintiff, which showed degenerative conditions, and defendants’ medical doctor’s conclusions were further bolstered by the findings of defendants’ biomechanical expert’s conclusions, as well as the fact that the plaintiff never sought treatment or hospitalization immediately after the accident.

At the Second Circuit, the plaintiff’s counsel made the same arguments as in the District Court – in essence arguing that merely because the plaintiff had a surgery, there “must” be a finding of a “serious injury” suffered by the plaintiff. However, Jim Strauss, who argued in the Second Circuit, not only faced questions about whether the injuries to the plaintiff were degenerative or pre-existing, but the Court also took issue with the conclusory statements of the plaintiff’s doctors, noting that their “bald assertions, unaccompanied by any rationale,” were insufficient “to create a genuine issue of fact” as to whether the plaintiff’s injuries were causally related to the accident. 

In conclusion, the Second Circuit held that there was a lack of causation between the plaintiff’s alleged injuries and his accident, thereby affirming the District Court’s decision in full.

TAKEAWAY

The 27-page decision and order from the lower court, which has now been affirmed by the Second Circuit, provides a roadmap for winning a summary judgment motion premised on New York’s threshold statute. Importantly, this is applicable to litigation where plaintiffs have surgeries.

It has been our experience that the plaintiff’s bar will rely on the fact that the plaintiff had surgery following an accident to argue that the “serious injury” threshold was met. With the right questioning of a plaintiff at a deposition, and the retention of highly credentialed experts, threshold motions similar to the one in this instance should be filed. Previously, our Transporatation team has won threshold motions in state court in cases involving plaintiffs who underwent surgery that included a fusion. Lewis Brisbois recommends taking a very aggressive approach on this issue, which, as seen in this case, can lead to the dismissal of actions (in those cases that cannot be resolved on favorable terms).

If you would like additional information or our recommended litigation strategies on the above issues, please do not hesitate to contact Adam Schwartzstein, Jim Strauss or Jennifer Harris.

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