Kang v. Romeo

Erin Kang, Sang Ho Lee, and Jung Ja Kwon, Plaintiffs, v. Ryan Lee Romeo and Environmental Waste Minimization, Defendants.

18-cv-4033 (ARR) (SMG)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

August 14, 2020

Opinion & Order

ROSS, United States District Judge:

This diversity action arose out of a motor vehicle accident that occurred on December 21, 2017 (the "2017 accident") in Queens, New York. Verified Compl. ("Compl.") ¶¶ 16, 18-19, ECF No. 1-1. Plaintiffs Erin Kang ("Kang"), Sang Ho Lee ("Lee"), and Jung Ja Kwon ("Kwon") (collectively, "plaintiffs") commenced this action against defendants Ryan Lee Romeo ("Romeo") and Environmental Waste Minimization ("EWM") (collectively, "defendants"), alleging that Romeo negligently operated a vehicle owned by EWM, causing him to strike Kang's vehicle and seriously injure Kang and her two passengers, Lee and Kwon. Id. ¶¶ 19-20, 23-25, 30-31, 34-36, 41-42, 45-47. Plaintiffs seek to recover damages for their alleged "serious injuries" pursuant to New York State's No-Fault Insurance Law ("No-Fault Law") §§ 5102(d) and 5104.

The instant action was filed in the New York Supreme Court, Queens County on June 18, 2018. Defs.' Notice of Removal ¶ 1, ECF No. 1. Defendants removed the case to the United States District Court for the Eastern District of New York on July 13, 2018 pursuant to 28 U.S.C. § 1332. Id. ¶ 7. Before the court is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiffs oppose. For the reasons set forth below, defendants' motion is granted in part and denied in part.

FACTUAL BACKGROUND

I. Plaintiff Kang

Kang, a forty-eight-year-old woman living in the Bronx, New York, drove one of the vehicles involved in the 2017 accident. Plaintiffs' Answers to Defendants' Interrogatories, Defs.' Ex. NN ("Ans. to Interrogs.") ¶ 1, ECF No. 32-42; see Plaintiffs' Supplementary Answers to Defendants' Interrogatories, Defs.' Ex. OO ("Suppl. Ans. to Interrogs.") 9, ECF No. 32-43. Kang was involved in at least three motor vehicle accidents prior to the 2017 accident and one subsequent accident. Defs.' 56.1 ¶ 1; Pls.' 56.1 ¶ 1. She filed lawsuits alleging that she sustained serious injuries as a result of three of the accidents. Defs.' 56.1 ¶¶ 3, 13, 24; Pls.' 56.1 ¶¶ 3, 13, 24. She claims that the 2017 accident aggravated her preexisting injuries from prior car accidents and caused new injuries. Affidavit of Erin Kang, Pls.' Ex. C, ("Kang Aff.") ¶¶ 18-23, ECF No. 38-4.

A. Other Accidents and Injuries¹

i. 2000 Accident

Kang was involved in a motor vehicle accident in 2000, in which she sustained head injuries and a concussion. Defs.' 56.1 ¶ 44; Pls.' 56.1 ¶ 44.

ii. 2014 Accident and Lawsuit

On January 17, 2014, Kang was again involved in a motor vehicle accident. Defs.' 56.1 ¶ 2; Pls.' 56.1 ¶ 2. She filed suit in New York Supreme Court, Queens County, pursuant to the No-Fault Law for injuries arising from that accident. Defs.' 56.1 ¶ 3; Pls.' 56.1 ¶ 3. Kang allegedly sustained various injuries to her lumbar spine and right knee. Defs.' 56.1 ¶¶ 8, 22, 29; Pls.' 56.1¶¶ 8, 22, 29; Verified Bill of Particulars, Index No. 701309/14, Defs.' Ex. E ("2014 Bill of Particulars") ¶¶ 7, 11, ECF No. 32-7.² A Magnetic Resonance Imaging (MRI) of Kang's right knee conducted on July 30, 2014 indicated that she sustained an "intrasubstance tear of the body of the medial meniscus, tear of the medial collateral ligament and grade 1 meniscal capsular separation of the medial meniscus." Defs.' 56.1 ¶ 4; Pl.'s 56.1 ¶ 4.

iii. 2015-16 Accident and Lawsuit

On February 4, 2016, Kang filed suit in the Superior Court of New Jersey, Bergen County, alleging that in December 2015, a negligent driver struck the vehicle in which she was a passenger, seriously injuring her. Defs.' 56.1 ¶ 13; Pls.' 56.1 ¶ 13; Compl., Docket No. L-1185-16 ¶¶ 7, 11, 13, Defs.' Ex. K, ECF No. 32-13. Kang testified that the injuries she sustained in the 2014 accident were aggravated by the 2015 accident. Kang Dep. 69:2-70:7, Defs.' Ex. AA, ECF No. 32-29. She explained that she was treated for injuries to her right shoulder, neck, and back as a result of the 2015 accident. Id. at 64:22-65:2. Among other procedures, her treatment included physical therapy for her neck and shoulder three times per week for approximately six months and fifteen chiropractic treatments. Id. at 65:16-23; Various Medical Records from Dr. Scilaris, Dr. Xie, and Kang's Physical Therapy, Defs.' Ex. P ("Various Kang Med. Recs.") 7-29, ECF No. 32-18; Defs.' 56.1 ¶ 38; Pls.' 56.1 ¶ 38.

iv. 2018 Accident and Lawsuit

Following the 2017 accident at issue in this case, Kang was involved in another car accident on August 13, 2018. She filed her complaint in New York Supreme Court, Bronx County onSeptember 9, 2018. Defs.' 56.1 ¶ 24; Pls.' 56.1 ¶ 24; Verified Compl., Index No. 30399/2018E ("2018 Bronx Cty. Compl."), Defs.' Ex. Y, ECF No. 32-27. In her complaint, she again alleged that she "sustained serious injuries as defined by §5102(d) of the Insurance Law of the State of New York." 2018 Bronx Cty. Compl. ¶ 24.

B. 2017 Accident

On December 21, 2017, defendant Romeo's vehicle collided with the vehicle driven by Kang. See Kang Aff. ¶ 2. Plaintiffs Lee and Kwon were passengers in Kang's car at the time. Statement of Additional Material Facts ("Pls.' 56.1 St. Add. Facts") ¶ 1, ECF No. 38-1³; Defs.' 56.1 Resp. ¶ 1, ECF No. 39-1. The parties dispute the extent of the damage to Kang's vehicle—defendants maintain that the driver-side rear wheel well was only scraped, whereas plaintiffs assert that it was also dented. Defs.' 56.1 ¶ 46; Pls.' 56.1 ¶ 46; see Photographs of Kang's Vehicle, Defs.' Ex. BB, ECF No. 32-30. No injuries were reported to or observed by the New York Police Department officers who responded to the scene of the accident. Defs.' 56.1 ¶ 40; Pls.' 56.1 ¶ 40. The parties dispute whether Kang hit her head on the steering wheel as a result of the accident. Defs.' 56.1 ¶¶ 42-43; Pls.' 56.1 ¶¶ 42-43.

i. Alleged Injuries

Kang alleges that as a result of the 2017 accident, she sustained injuries to her head, left shoulder, right knee, lumbar spine, and cervical spine. Pls.' 56.1 St. Add. Facts ¶ 2. According to Kang, only the injuries to her left shoulder and head were originally caused by the 2017 accident. Kang Aff. ¶ 23. She alleges that the lumbar spine and right knee injuries she sustained from her 2014 accident were aggravated by the 2017 accident. Kang Aff. ¶¶ 18, 24. Likewise, she contendsthat she originally injured her cervical spine in the 2015 accident, but that the 2017 accident aggravated her injury. Id. ¶¶ 19, 24. She states that the 2017 accident was the direct cause of her head injuries, but also contends that it aggravated her previously diagnosed bipolar disorder. Id. ¶ 21.

Kang, drawing on her doctors' and radiologists' reports, set forth an extensive list of alleged injuries without identifying which she deemed to be serious and / or permanent:

Head

• Global cortical atrophy predominantly involving the frontal and occipital lobes with bilateral clustered involvement of the parahippocampal entorhinal region;

• Global FA⁴ reduction;

• Numerous foci of abnormal increased [T]2/FLAIR⁵ signal within the white matter⁶ [of] both cerebral hemispheres.

Left Shoulder

• Cuff tendinosis and / or tendonitis;

• Impingement and supraspinatus outlet syndrome;

• Effusion;

• Synovitis;

• Hypoplastic partially torn labrum.

Right Knee

• Partial [anterior cruciate ligament (ACL)] tear;

• Effusion;

• Meniscocapsular separation laterally;

• Bone island inflammation;

• Distal femur;

• Myxoid degeneration posterior horn medial meniscus;

• Superficial varicose veins;

• Some lateral patellar tilt and subluxation;

• No other internal derangement.

Cervical Spine

• Patulous internal jugular veins;

• Heterogenous thyroid gland;

• C5-C6⁷ bilobed 7mm disc herniation with ventral and bilaterally lateral recesses spinal stenosis;

• Thickened wavy nuchal ligament.

Lumbar Spine

• Straightening of the lumbar lordosis;

• Transitional vertebrae at lumbosacral junction;

• No other focal internal derangement.

Pls.' 56.1 St. Add. Facts ¶ 3; Ans. to Interrogs. ¶ 4; Various Kang MRI Reports 2-4, Pls.' Ex. D, ECF No. 38-5 (head)⁸; Report of Dr. Golzad ("Kang Golzad Rep.") 7, Pls.' Ex. E, ECF No. 38-6 (head); Various Kang MRI Reports 6 (left shoulder); id. at 5 (right knee); id. at 7-8 (cervical spine); id. at 9-10 (lumbar spine); Report of Dr. Seldes, Pls.' Ex. A ("Kang Seldes Rep.") 10, ECF No. 38-2 (left shoulder, right knee, lumbar spine, and cervical spine).

The parties agree that Kang was confined to her home for one week after the accident and one week after each of her right knee and left shoulder arthroscopic surgeries. Defs.' 56.1 ¶ 53; Pls.' 56.1 ¶ 53. They disagree, however, as to the lasting impact of her injuries. Kang alleges that because of the 2017 accident, she can no longer jog and has difficulty performing various tasks,such as lifting her son, sleeping on her left side, holding items with her left arm, completing household chores, standing, walking, or sitting for extended periods of time, kneeling, using a computer, reading a book, using stairs, and lifting heavy items. Pls.' 56.1 St. Add. Facts ¶¶ 46-47; Kang Aff. ¶¶ 28-29. She also reports "frequent headache, insomnia, loss of memories and sensitivity to light." Kang Aff. ¶ 29. Defendants argue, however, that these restrictions are due to Kang's preexisting and degenerative conditions, not the 2017 accident. Defs.' 56.1 Resp. ¶¶ 46-47.

Kang was not employed at the time of the 2017 accident, and thus, was not prevented from working as a result of her alleged injuries. Defs.' 56.1 ¶ 54; Pls.' 56.1 ¶ 54. She has collected Social Security Disability Income (SSDI) since age 25, when she was designated disabled due to bipolar disorder, a condition for which she was frequently hospitalized prior to the 2017 accident. Defs.' 56.1 ¶¶ 45, 55; Pls.' 56.1 ¶¶ 45, 55.

ii. Treatment

Although the accident occurred...