Brusso v. Imbeault

699 F.Supp.2d 567

Jill L. BRUSSO and Wayne T. Brusso, Plaintiffs,v.Tracey L. IMBEAULT and Keltic Transportation, Inc., Defendants.

No. 07-CV-6155P.

United States District Court W.D. New York.

March 16, 2010.

COPYRIGHT MATERIAL OMITTED

Michele A. Braun, Thomas M. Mercure, Lipsitz, Green, Scime, Cambria, LLP, Buffalo, NY, for Plaintiffs.

Donna L. Burden, Burden, Gulisano & Hickey, LLC, Buffalo, NY, for Defendants.

DECISION & ORDER

MARIAN W. PAYSON, United States Magistrate Judge.

PRELIMINARY STATEMENT

Plaintiff Jill Brusso (“Brusso”) has brought this action to recover for injuries sustained in an automobile accident. Her husband, Wayne Brusso, has also sued for loss of consortium. Plaintiffs originally filed the complaint in New York State Supreme Court. Defendants thereafter removed the action to federal court, invoking diversity of citizenship jurisdiction under 28 U.S.C. § 1441. (Docket # 1). In their amended answer, defendants have alleged a counterclaim against Wayne Brusso for contribution and indemnification. (Docket # 15 at ¶ 25). Pursuant to 28 U.S.C. § 636(c), the parties have consented to have a United States magistrate judge conduct all further proceedings in this case, including the entry of final judgment. (Docket # 51).

Currently pending are two motions for summary judgment filed by defendants. The first seeks judgment in their favor on the grounds that Brusso has not raised a triable issue of fact that she sustained a “serious injury” under Section 5102 of the New York State Insurance Law. (Docket # 58). The second seeks judgment on the basis of a release that she signed approximately six months after the accident. (Docket # 68). Also pending before the Court is a cross-motion filed by Brusso to preclude consideration of records of her former treating chiropractor on the basis that defendants improperly gained access to those records. (Docket # 61).

For the reasons discussed below, plaintiffs' motion to preclude is denied and defendants' motion for summary judgment on the issue of “serious injury” is granted.

FACTUAL BACKGROUND

On February 2, 2004, a tractor-trailer owned and operated by defendants collided with Brusso's vehicle on Commerce Drive in Dansville, New York. (Docket # 75 at ¶¶ 1-2). Following the accident, Brusso was taken to the emergency room at a nearby hospital and was treated for neck and back complaints. ( Id. at ¶ 5). Brusso was evaluated by her primary care physician, Dr. Carol Holobinko, D.O. (“Holobinko”) two days later on February 4, 2004. (Docket # 65 at ¶ 3). During that visit, Brusso complained of neck and back pain and was prescribed muscle relaxants and over-the-counter analgesics. ( Id. at 3 and Exhibit (“Ex.”) A). Brusso returned to work two days following the accident. ( Id. at ¶ 7).

Brusso claims that she suffered the following physical injuries as a result of the accident:

disc bulge and/or herniations at C4-5; posterior radial tear at C4-5; posterior radial tear at C6-7; exacerbation and/or precipitation or disc protrusion and/or herniation at C6-7; cervical strain/sprain; exacerbation and/or precipitation of straightening of cervical curvature; muscle spasms; neck pain radiating down right arm into hand; lumbar strain/sprain; chronic low back pain with intermittent radiation into right leg/foot; intermittent paresthesia in right foot; bruised right side; pain in right rib area; secondary headaches; disrupted sleep pattern and sleep deprivation secondary to pain and discomfort; limited range of motion in cervical and lumbar spine areas; numbness and tingling in arms and legs; disc bulge and/or herniation and L1-2; exacerbation and/or precipitation of disc degeneration at T12-L1 and L1-2; weakness in arms and legs; right shoulder and arm pain; decreased grip strength in right hand; paresthesia in right hand/fingers; altogether with injuries to the bones, muscles, tendons, ligaments, nerves, blood vessels and soft tissues in the injured areas.

(Docket # 61 at ¶ 9; 54-7 at 14-15). She further claims that she experienced pain and suffering, emotional distress and the “limited ability to perform normal daily functions.” (Docket # 54-7 at 15).

I. History of Neck and Back Pain Prior to the February 2, 2004 Accident

Prior to the February 2, 2004 accident, Brusso treated with a chiropractor for nearly a decade. ( See Docket # 54-17). Specifically, Brusso began treating with Dr. David Kartzman, D.C. (“Kartzman”) on October 24, 1995 for complaints of pain between her shoulder blades and in her lower back. ( Id. at 2). After she took a fall in early 1996, Brusso began to complain of neck pain. ( Id. at 5). The neck and lower back pain continued through February 25, 1997, when Brusso reported to Kartzman that she had been involved a car accident in which her vehicle had skidded off an icy road. ( Id. at 6-10). Thereafter, Brusso's complaints of neck and mid-and lower back pain increased and persisted through 1999. In early 1999 she reported that she had fallen on ice. ( Id. at 10-16).

On December 12, 2002, Brusso reported that she had been involved in another motor vehicle accident; this time, the accident caused her truck to be thrown into a ditch. ( Id. at 21). Brusso's treatment with Kartzman between 2000 and 2003 was marked with fewer complaints of neck pain, but more complaints of lower back pain, prompting Dr. Kartzman to refer her for magnetic resonance imaging (“MRI”) of her lumbar spine. ( Id. at 17). On November 6, 2003, Brusso complained again of neck and lower back pain, and Dr. Kartzman noted a decrease in her “cervical right lateral flexion at cervical thoracic junction.” ( Id. at 25). Brusso's last visit with Kartzman was on November 11, 2003, less than three months before the accident at issue in this lawsuit. ( Id. at 25-26). All told, Brusso treated with Kartzman on approximately forty-five occasions during the eight years that she was his patient. (Docket # 54-17).

Records of Brusso's treatment with her primary care physician, Dr. Holobinko, confirm that Brusso reported to a nurse practitioner, Sandra Kelsey (“Kelsey”), that she had been in a motor vehicle accident in late 2002 or early 2003. (Docket # 54-21). Specifically, on January 6, 2003, Brusso told Kelsey that she had been “involved in a skid off accident in the snow” and complained of right shoulder pain. ( Id.). On December 9, 2003, Brusso returned to Holobinko's office complaining of increased right neck and shoulder pain and numbness in her right arm and hand, causing Kelsey to order an MRI of Brusso's cervical neck. ( Id.). Two weeks later, Kelsey noted that the MRI of Brusso's “cervical spine show[ed] minimal posterior disk bulging at C6-7, no disk herniation, normal cervical cord.” ( Id.). Kelsey recommended that Brusso undergo physical therapy and continue to take muscle relaxants and anti-inflammatory medication. ( Id.).

II. Brusso's Treatment Following the February 2, 2004 Accident

Following the February 2, 2004 accident at issue in this case, Brusso treated with Dr. Holobinko for neck and back pain. (Docket # 65). As stated earlier, Brusso first saw Holobinko for evaluation two days following the accident. ( Id.). At that time, Brusso complained of neck, back and rib pain, for which Holobinko prescribed Motrin, muscle relaxants and the use of cool compresses. ( Id.). At her follow-up appointment two weeks later, on February 17, 2004, Brusso was referred for massage therapy, which Brusso continued on a weekly basis through October 2004. ( Id.). Holobinko's records reflect that Brusso had full range of motion in her cervical neck by May 4, 2004. ( Id.).

A police report provided by defendants indicates that Brusso was involved in another motor vehicle accident on May 10, 2004. (Docket # 54-28). No mention of the accident is noted in Holobinko's records and no evidence exists in the record that Brusso sought medical treatment for any injuries from that accident. (Docket # 65).

On August 12, 2004, Nurse Practitioner Kelsey noted the presence of a mild cervical muscle spasm and, in October 2004, Brusso began to complain of increased neck and lower back pain. ( Id.). Another MRI of Brusso's cervical and lumbar spine was ordered, the results of which Holobinko described as “normal except some bulging discs.” ( Id.). The October 2004 MRI of Brusso's lumbar spine showed a “[m]ild disc bulge at the thoracolumbar spine without herniated nucleus pulposus nor spinal stenosis.” (Docket # 54-24). The radiologist concluded that the 2004 MRI showed “no significant change” from the MRI conducted on July 12, 2000. ( Id.). The 2004 MRI of Brusso's cervical spine revealed a small C6-7 disc bulge and a mild curvature of the spine. ( Id.). Similarly, the radiologist concluded that it showed no change from the earlier, pre-accident MRI conducted in 2003. ( Id.).

In March 2005, Holobinko began to treat Brusso with acupuncture to address her continued pain. ( Id.). Two months later, in May 2005, Holobinko referred her to physical therapy. (Docket # 65). Despite this treatment, Brusso continued to complain of neck and lower back pain at each monthly appointment with her physician's office. ( Id.). At some point thereafter, Brusso also received a series of cortisone injections. (Docket # 61-2 at 100). In March 2006, Brusso began treatment with a chiropractor, Dr. Rick Czajkowski, D.C. (“Czajkowski”), and continued treating with him until at least September 2009. (Docket # 63).

Holobinko also referred Brusso to a neurosurgeon, Dr. Seth Zeidman, M.D. (“Zeidman”), on May 18, 2006. (Docket # 64). At Zeidman's recommendation, Brusso underwent a cervical discogram, which “revealed a central protrusion with radial tear and leaking at C6-7 as well as a small radial tear with central protrusion at C4-5.” ( Id. at ¶ 11). Zeidman recommended surgery for the tear consisting of a cervical dissectomy and fusion at C6-7. ( Id. at ¶ 13). According to Brusso, problems concerning “payment” have prevented her from undergoing the...