Personal Injury - A Sonia Sotomayer N.Y. No-Fault Decision

Maybe-soon-to-be Justice Sotomayer has drawn a great deal of commentary lately. The White House asked critics to take it easy after Newt Gingrich called her a reverse racist (Politico). The New York Personal Injury Law Blog pondered whether Sotomayer violated ethical rules by using "Sotomayer & Associates" when doing consultation work for family and friends. Above The Law discussed how her financial disclosures prove that she is not a rich white man. The Huffington Post seems to be a fan; Richard Epstein is not. According to Law.com, empirical studies of her opinions show that she is probably not a judicial activist. She's also had at least one death threat.

Personally, I don't know; luckily, Obama hasn't asked my opinion. She has the right resume, with both experience and pedegree. Her life is being gone over with a fine-toothed comb, and critics don't seem to have much ammunition against her.

Recently, my attention was drawn to a 1998 Sotomayer decision from Nasrallah v. Oliveiri Helio De & Artichoke Cab Co., 1998 U.S. Dist. LEXIS 4173 (1998), which dealt with the New York No-Fault law. Justice Sotomayer's approach in this case impressed me. She put substance above form, and utilized the Court's discretion to accomplish a fair outcome.

In Nasrallah, the Plaintiff had submitted medical reports that were, apparently, not properly affirmed. (Note, CPLR 2106 allows physicians to affirm their reports as true, rather than submitting an affidavit). Rather than dismissing the case because of a techinical insufficiency in the form of the evidence, Judge Sotomayer permitted Plaintiff additional time to correct the defect.

Of course, appellate practice, particularly practice before the Supreme Court of the United States, is much different than practice as a District Court trial judge. On appeal, a record has already been made and finalized, and allowing a party to amend or expand the record to add additional evidence is rarely given. The Nasrallah decision was at the trial level and, essentially, merely involved granting additional time.

Overall, if this is the indicative of Sotomayer's approach to the law, it suggests (at least to me) that she is the type of judge who follows the law, but does not lose sight of the overarching goal of accomplishing justice and fairness (which could be a good thing or a bad thing, depending on whether you agree or disagree with her sense of justice and fairness). Also, I believe it suggests that she treats the attorneys who appear before her well, which is a good thing.

The relevant portion of the decision reads as follows:

In a report dated June 1, 1995, Dr. Elamir [Plaintiff's treating physician] stated that a physical examination of Nasrallah revealed that 'flexion was limited by 40% (N-90) and extension was limited by 50%. Lateral bending was limited by right 40% and left 40%." The report also included a diagnosis of cervical and lumbar myofascitis, and also reported that Nasrallah complained of "episodic severe headaches" and "limitation of the musculoskeletal system." Dr. Elamir concludes with the following prognosis:

It is my opinion that based upon all of the physical examinations, various tests which have been performed and the patient's physical complaints, that the patient has incurred permanent consequential limitation of use of the lower back as well as limitation of use of bodily function of the lower back. This permanent disability of the lower back is causally related to the above noted accident and that based upon reasonable medical probability, he will continue to experience pain, tenderness, and limitation of motion of these areas in the future, especially in the presence of inclement weather or after attempts to excessive physical exertion either at work or recreationally.

Pl. Mem. Opp., Ex. A, at 2-3. Dr. Elamir also wrote a letter on June 30, 1997, in which he states that Nasrallah was considered "disabled and unable to work during the period of treatment from December 14, 1994 until June 26, 1995." Pl. Mem. Opp., Ex. B. Plaintiffs, however, have not submitted to the Court any of Dr. Elamir's reports in the form of an affirmation or affidavit.

***

Defendants cite several cases, purportedly for the proposition that plaintiff's own doctor reports are insufficient to establish a serious injury. One wonders, simply on the face of this argument, just how a plaintiff is supposed to establish serious injury other than through medical reports by treating doctors, when even experts must rely upon such reports in rendering an opinion. Not surprisingly, the cases cited by the defendants do not stand for this proposition.

What the cases do stand for, as correctly noted by the defendants, is that a plaintiff's physician's conclusory statements as to significance or permanence, unsupported by facts detailing the extent of the limitation, is insufficient.

Plaintiffs in this case, however, have produced a medical report which is purportedly based on objective testing, quantifies the amount of limitation, and characterizes it as significant. This is sufficient to meet the serious injury threshold.

***

Plaintiffs' evidence, if submitted in admissible form, presents evidence from which a reasonable factfinder could conclude that serious injury has resulted. Consequently, the Court denies the defendants' motion for summary judgment, but will require the plaintiffs to submit their evidence in admissible form. The Court warns the plaintiffs that failure to present this Court with admissible evidence in three (3) weeks equivalent in all material respects to that relied upon for this motion will result in the Court's sua sponte reversal of this decision and granting of the defendants' motion for summary judgment because of plaintiffs' failure to comply with Fed. R. Civ. P. 56(e).

For the foregoing reasons, the Court denies defendants' motion for summary judgment. The plaintiffs are ordered to resubmit their evidence in opposition to summary judgment to the Court in admissible form -- namely, an affidavit or affirmation from a physician attesting to the extent and significance of Mr. Nasrallah's injury and the basis for such conclusion -- by April 21, 1998. The parties are directed to appear for a conference on April 29 at 4:30, at which time both the sufficiency of plaintiffs' evidentiary submission and the scheduling of a trial date, if in order, will be discussed.