New York Law Review

Tag: No-Fault Law

  • Aetna Health Plans v. Hanover Insurance Co., 27 N.Y.3d 813 (2016): Health Insurer Reimbursement Under No-Fault Law

    27 N.Y.3d 813 (2016)

    A health insurer cannot seek reimbursement directly from a no-fault automobile insurer for medical expenses paid to treat injuries sustained in an accident, because it is not a “provider of health care services” as defined in the No-Fault Law and its implementing regulations.

    Summary

    Aetna Health Plans, a health insurer, paid medical bills for its insured, Luz Herrera, who was injured in a car accident covered by Hanover Insurance Company under its no-fault policy. Aetna sought reimbursement from Hanover, arguing that Hanover was responsible for the bills under the No-Fault Law. The Court of Appeals held that Aetna could not directly seek reimbursement from Hanover because the No-Fault Law and its regulations only allow payments directly to applicants or providers of health care services (upon assignment from the applicant), and Aetna did not qualify as a health care provider. The court reasoned that allowing health insurers to seek direct reimbursement would be inconsistent with the no-fault statutory scheme.

    Facts

    Luz Herrera was injured in a car accident while insured by Hanover Insurance Company. Herrera also had health insurance through Aetna Health Plans. Medical providers initially submitted bills to Aetna, which paid them. Aetna later sought reimbursement from Hanover for these bills. Hanover did not respond to Aetna or Herrera. Herrera assigned her rights against Hanover to Aetna. Aetna filed suit against Hanover seeking reimbursement for the medical bills paid.

    Procedural History

    Aetna sued Hanover for reimbursement. The trial court granted Hanover’s motion to dismiss the complaint. The Appellate Division affirmed. The New York Court of Appeals granted Aetna’s motion for leave to appeal.

    Issue(s)

    1. Whether a health insurer that pays for medical treatment that should have been covered by an insured’s no-fault automobile insurance carrier can maintain a reimbursement claim against the no-fault insurer.

    Holding

    1. No, because New York’s No-Fault statutory law and regulatory scheme do not contemplate such reimbursement to a health insurer.

    Court’s Reasoning

    The court relied on the No-Fault Law (Article 51 of the New York Insurance Law) and its implementing regulations, specifically 11 NYCRR 65-3.11(a). This regulation states that an insurer should pay benefits for any loss directly to the applicant or, upon assignment by the applicant, to providers of health care services. The court found that Aetna was not a provider of health care services and therefore could not receive direct payment from Hanover. The court rejected Aetna’s argument that the assignment from Herrera gave it the right to reimbursement because Aetna was not a health care provider. The court also noted that the No-Fault Law was designed for prompt resolution of claims and that allowing Aetna’s claim would be inconsistent with this purpose. The court deferred to the New York State Insurance Department’s opinion that an HMO such as Aetna could not subrogate its recovery, because it did not fit the definition of “insurer” under the no-fault insurance law scheme.

    Practical Implications

    This decision confirms that health insurers in New York cannot directly sue no-fault insurers for reimbursement of medical expenses paid. Health insurers should ensure that healthcare providers properly bill the correct insurer initially. Health insurers may have contractual remedies against the health care providers to recover funds if the providers were initially paid by the health insurer by mistake. This case underscores the importance of understanding the specific requirements of the No-Fault Law and the distinctions between different types of insurance providers. The ruling reinforces the established regulatory scheme for no-fault insurance and limits the circumstances under which a health insurer can recover payments made on behalf of an insured. Future cases in this area will likely continue to center on the technical requirements and the proper application of the No-Fault Law, with health insurers unable to seek direct reimbursement from automobile insurers.

  • Pommells v. Perez, 4 N.Y.3d 566 (2005): Establishing Causation in No-Fault ‘Serious Injury’ Claims

    4 N.Y.3d 566 (2005)

    In New York no-fault insurance cases, a plaintiff claiming “serious injury” must provide objective medical evidence causally linking the injury to the accident, especially when there are gaps in treatment, intervening medical issues, or pre-existing conditions that could break the chain of causation.

    Summary

    This case addresses the “serious injury” threshold in New York’s No-Fault Law. Pommells was involved in a car accident and sought medical treatment, but ceased treatment after six months. Over two years later, he suffered a kidney problem requiring surgery. In his lawsuit related to the car accident, the court held that Pommells failed to demonstrate that his injuries met the “serious injury” threshold because of the gap in treatment and the intervening kidney condition, which interrupted the causal link between the accident and his claimed injuries. The Court emphasized the need for objective medical evidence to establish causation, particularly when other factors could have contributed to the plaintiff’s condition.

    Facts

    Anthony Pommells was involved in a three-car accident on March 15, 1998. He received initial medical treatment, including physical therapy, for six months. He ceased all treatment after that initial period. More than two years after the accident, in July 2000, Pommells was hospitalized for a kidney condition that required surgery in August 2000, keeping him out of work for six months. He initiated a lawsuit on June 24, 1998, claiming “serious injury” under New York’s Insurance Law § 5102(d).

    Procedural History

    The trial court granted the defendants’ motion for summary judgment, dismissing Pommells’ claim. The Appellate Division affirmed the trial court’s decision. Two justices dissented. The case then went to the New York Court of Appeals.

    Issue(s)

    Whether the plaintiff presented sufficient objective medical evidence to demonstrate a “serious injury” causally related to the car accident, despite a significant gap in treatment and an intervening medical condition.

    Holding

    No, because the plaintiff failed to adequately explain the gap in treatment and address the potential impact of his kidney condition on his claimed injuries. The court affirmed the lower courts’ decisions, granting summary judgment for the defendants.

    Court’s Reasoning

    The Court of Appeals reasoned that while proof of a herniated disc can be objective evidence, it’s not enough on its own to establish a serious injury without showing significant physical limitations resulting from the accident. The defendants presented a prima facie case that Pommells did not meet the “serious injury” threshold, shifting the burden to Pommells to offer objective medical proof of a serious injury causally linked to the accident. The court found two critical flaws in Pommells’ case: the gap in treatment and the intervening kidney condition. Regarding the gap in treatment, the Court stated, “While a cessation of treatment is not dispositive…a plaintiff who terminates therapeutic measures following the accident, while claiming ‘serious injury,’ must offer some reasonable explanation for having done so.” Pommells offered no explanation for ceasing treatment. Furthermore, the Court noted that Pommells failed to address how his kidney disorder affected his claimed accident injuries. Dr. Rose’s report mentioned the kidney surgery and relied on that history when opining on causation, but Pommells provided no evidence to clarify whether his symptoms were caused by the accident or the kidney condition. Because of these failures, the Court concluded that Pommells did not meet his burden of proof to overcome summary judgment.

  • Toure v. Avis Rent A Car Systems, Inc., 98 N.Y.2d 345 (2002): Objective Medical Evidence Required for No-Fault “Serious Injury” Claims

    Toure v. Avis Rent A Car Systems, Inc., 98 N.Y.2d 345 (2002)

    In New York, to meet the “serious injury” threshold under the No-Fault Law (Insurance Law § 5102(d)), a plaintiff must present objective medical evidence, either quantitative (numerical percentage of loss of range of motion) or qualitative (assessment of limitations compared to normal function), to substantiate the injury.

    Summary

    This case addresses the objective medical proof required to meet the “serious injury” threshold in New York’s No-Fault Law. The Court of Appeals held that while an expert’s numerical percentage of a plaintiff’s loss of range of motion can substantiate a claim, a qualitative assessment may also suffice, provided it has an objective basis and compares the plaintiff’s limitations to the normal function of the affected body part. Subjective complaints alone are insufficient. The court found that Toure and Manzano presented sufficient evidence, but Nitti did not.

    Facts

    Toure: Plaintiff Toure claimed neck and back injuries from a car accident. He alleged a “permanent consequential limitation of use of a body organ or member” and a “significant limitation of use of a body function or system.” An MRI taken one month after the accident revealed bulging and herniated discs. He claimed difficulty sitting, standing, walking, and lifting. Manzano: Plaintiff Manzano was rear-ended and claimed lower back pain and tingling in her neck and spine. She testified she could no longer do heavy lifting or household chores. An MRI revealed two herniated discs in her cervical spine. Nitti: Plaintiff Nitti was a passenger in a car accident and claimed back pain that prevented her from working and participating in daily activities for six months.

    Procedural History

    Toure: The Supreme Court granted summary judgment to the defendants, dismissing the complaint. The Appellate Division affirmed. Plaintiff appealed to the Court of Appeals. Manzano: The Supreme Court denied the defendant’s motion for a directed verdict, and the jury awarded damages to the plaintiff. The Appellate Division reversed and dismissed the complaint. Plaintiff appealed to the Court of Appeals. Nitti: The Supreme Court denied the defendant’s motion for a directed verdict, and the jury found for the plaintiff. The Appellate Division affirmed. Defendant appealed to the Court of Appeals.

    Issue(s)

    1. Toure & Manzano: Whether a plaintiff sufficiently demonstrates a “serious injury” under Insurance Law § 5102(d) by providing a qualitative assessment of physical limitations supported by objective medical evidence, even without a specific numerical percentage of loss of range of motion.
    2. Nitti: Whether a plaintiff sufficiently demonstrates a “serious injury” under Insurance Law § 5102(d)’s 90/180-day rule by presenting medical testimony of muscle spasms and restricted range of motion, when the tests used to determine the range of motion are subjective and the MRI report is not introduced as evidence.

    Holding

    1. Toure & Manzano: Yes, because a qualitative assessment of a plaintiff’s limitations, based on the normal function of the body part and supported by objective medical evidence (like MRI results), is sufficient to raise a triable issue of fact, even without specific percentage measurements.
    2. Nitti: No, because to meet the “serious injury” threshold, the injury or impairment must be supported by objectively ascertained medical proof, which was lacking in this case.

    Court’s Reasoning

    The Court emphasized that the No-Fault Law aims to eliminate frivolous claims and requires objective proof of injury. For Toure, the Court found that Dr. Waltz’s affirmation, detailing limitations based on the normal function of the body part and supported by MRI and CT scan reports, was sufficient to defeat summary judgment, even without a specific percentage of loss of motion. The Court cited Dufel v Green, 84 NY2d 795, 798 (1995), stating that whether a limitation of use or function is ‘significant’ or ‘consequential’ relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part. For Manzano, the Court held that Dr. Cambareri’s testimony, correlating the herniated discs (shown on MRI films) with the plaintiff’s inability to perform daily tasks, was sufficient evidence of a permanent consequential limitation. For Nitti, the Court found the testimony of the chiropractor insufficient because the spasm was not objectively ascertained, the tests for range of motion were subjective, and the MRI report was not introduced into evidence. The Court emphasized that while “medical testimony concerning observations of a spasm can constitute objective evidence in support of a serious injury, the spasm must be objectively ascertained.” The Court distinguished Toure and Manzano, where the experts’ conclusions were based on a review of MRI films and reports, which can provide objective evidence of a serious injury.

  • Oberly v. Bangs Ambulance, Inc., 96 N.Y.2d 295 (2001): Defining “Permanent Loss of Use” Under New York’s No-Fault Law

    Oberly v. Bangs Ambulance, Inc., 96 N.Y.2d 295 (2001)

    Under New York’s No-Fault Law, a plaintiff claiming a “permanent loss of use of a body organ, member, function, or system” must demonstrate a total, not partial, loss of use to establish a serious injury.

    Summary

    Richard Oberly, a dentist, was injured when an IV pump fell on his arm while being transported in an ambulance owned by Bangs Ambulance. Oberly sued, claiming a “serious injury” under New York’s No-Fault Law, specifically a “permanent loss of use of a body organ, member, function or system.” The New York Court of Appeals held that to qualify as a serious injury under this category, the loss of use must be total, not partial. Because Oberly did not demonstrate a total loss of use of his arm, his claim failed. The court reasoned that the legislative intent, the plain wording of the statute and related categories within the statute all point toward requiring complete loss in order to meet the standard for “permanent loss of use.”

    Facts

    Richard Oberly, a dentist, was a patient in a Bangs Ambulance. While being transported, an IV pump fell from a shelf and struck his right forearm. Oberly sustained bruising and claimed ongoing pain and cramping in his arm. This pain allegedly limited his ability to practice dentistry.

    Procedural History

    Oberly and his wife sued Bangs Ambulance in Supreme Court, alleging negligence and claiming a serious injury under New York’s No-Fault Law. The Supreme Court dismissed the action due to lack of evidence of a serious injury. The Appellate Division affirmed, stating that a partial loss of use requires a showing that the limitation is “consequential or significant.” The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a party bringing a claim under the no-fault serious injury category of “permanent loss of use of a body organ, member, function or system” is required to prove that the loss of use is significant or consequential, or whether a total loss of use is required.

    Holding

    No, because to qualify as a serious injury within the meaning of the statute, “permanent loss of use” must be total.

    Court’s Reasoning

    The court based its reasoning on the statutory text and the legislative intent behind the No-Fault Law. The court stated that “the statute speaks in terms of the loss of a body member, without qualification,” indicating the Legislature intended a complete loss. Furthermore, the court reasoned that the 1977 amendments to the No-Fault Law, which added the categories of “permanent consequential limitation of use of a body organ or member” and “significant limitation of use of a body function or system,” would be redundant if partial losses were already covered under “permanent loss of use.” The court stated that had the Legislature considered partial losses already covered under “permanent loss of use,” there would have been no need to enact the two new provisions. The court emphasized a consistent framework within the statute. The court rejected the Appellate Division’s addition of “partial” to the “loss of use” standard, stating there is no qualitative difference between a partial “loss of use” and a “limitation of use” when both require a permanent injury, thus creating a redundancy. The court reasoned “requiring a total loss is consistent with the statutory addition, in 1977, of the categories ‘permanent consequential limitation of use of a body organ or member’ and ‘significant limitation of use of a body function or system.’”

  • Dufel v. Green, 84 N.Y.2d 795 (1995): Admissibility of Expert Testimony on ‘Serious Injury’ Threshold

    84 N.Y.2d 795 (1995)

    Expert medical testimony is admissible to establish whether a plaintiff has sustained a “permanent consequential limitation of use of a body organ or member” or a “significant limitation of use of a body function or system” as defined by Insurance Law § 5102(d), even if the testimony addresses ultimate issues for the jury.

    Summary

    In a personal injury action arising from a car accident, the New York Court of Appeals addressed whether it was improper for the plaintiff’s doctors to testify, using the exact language of Insurance Law § 5102(d), that the plaintiff sustained a “permanent consequential limitation” and a “significant limitation” of use of a body function. The Court held that such testimony was admissible, reasoning that whether an injury meets these statutory definitions often requires medical expertise beyond the ken of a lay jury. The Court emphasized that the expert opinions were supported by objective medical evidence and the defense had the opportunity to cross-examine and present their own expert testimony.

    Facts

    Plaintiff sustained injuries to her ankle and knee in a car accident. She sued the other driver and the vehicle’s owner for damages. To establish a “serious injury” under New York’s No-Fault Law (Insurance Law § 5102(d)), plaintiff’s physicians testified that she suffered a “permanent consequential limitation” and a “significant limitation” of the use of a body member, function, organ, or system.

    Procedural History

    The trial court allowed the plaintiff’s doctors to testify as to whether the plaintiff suffered a permanent consequential limitation or a significant limitation. The jury found in favor of the plaintiff, determining that she sustained a permanent consequential limitation and a significant limitation and that she was medically prevented from performing normal activities for 90 out of 180 days following the accident. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal to determine if the doctor’s testimony was improper.

    Issue(s)

    1. Whether it is an error to allow medical experts to testify, using the statutory language of Insurance Law § 5102(d), as to whether a plaintiff sustained a “permanent consequential limitation of use of a body organ or member” or a “significant limitation of use of a body function or system”.

    Holding

    1. No, because whether an injury constitutes a “permanent consequential limitation” or a “significant limitation” often requires medical expertise, and the expert’s opinion was supported by objective evidence and subject to cross-examination and rebuttal.

    Court’s Reasoning

    The Court of Appeals reasoned that the admission of expert opinion is within the trial court’s discretion when it involves knowledge or skill beyond the range of ordinary training and intelligence. The Court found that determining whether an injury is permanent, “significant,” or “consequential” involves medical judgments about the seriousness and qualitative nature of an injury, compared to the normal function of the body, and thus falls within the scope of medical expertise. The court quoted Selkowitz v County of Nassau, 45 NY2d 97, 102, stating that an “expert” should be permitted to offer an opinion on an issue which involves ” ‘professional or scientific knowledge or skill not within the range of ordinary training or intelligence’ ”. The Court also emphasized the No-Fault Law’s intent to weed out frivolous claims. Permitting medical testimony on the seriousness of the injury assists the jury and is consistent with that intent. The Court acknowledged that there could be instances where asking experts questions in the statutory form would be unduly prejudicial. However, in this case, because the expert’s opinions were supported by objective evidence, the defense had the opportunity to cross-examine and present its own expert who testified that the plaintiff sustained a 20% permanent loss of use of her ankle, the court found no error. Thus, the jury could exercise independent judgment without relying solely on the plaintiff’s experts’ statutory conclusions. The court cited Licari v Elliot, 57 NY2d 230, 234-235, stating that “the legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries”.

  • Gaddy v. Eyler, 79 N.Y.2d 955 (1992): Establishing Serious Injury Under New York’s No-Fault Law

    Gaddy v. Eyler, 79 N.Y.2d 955 (1992)

    Under New York’s No-Fault Insurance Law, to defeat a motion for summary judgment, a plaintiff must present objective evidence demonstrating a ‘serious injury’ as defined by the statute, showing more than minor limitations or subjective complaints of pain.

    Summary

    Gaddy was involved in a car accident and sued for personal injuries. Eyler, the defendant, moved for summary judgment, arguing Gaddy did not sustain a ‘serious injury’ as defined by Insurance Law § 5102(d). The Court of Appeals affirmed the grant of summary judgment for the defendant. Even accepting Gaddy’s claims and her doctors’ reports as true, the court held that she failed to demonstrate a ‘permanent consequential limitation,’ a ‘significant limitation,’ or a substantial curtailment of daily activities for 90 out of 180 days following the accident. The court emphasized the need for objective evidence to substantiate claims of serious injury under the No-Fault Law.

    Facts

    Gaddy was involved in a motor vehicle accident in June 1987, when her car was rear-ended while she was stopped at a red light.

    She claimed neck and back injuries resulting in a ‘permanent consequential limitation of use’ or ‘significant limitation of use,’ ‘permanent loss of use of a body organ, member, function or system,’ and a ‘medically determined injury or impairment of a non-permanent nature’ which lasted for 90 days or more, substantially limiting her daily activities.

    Her doctors diagnosed chronic cervical and lumbosacral sprain and strain as a result of the accident.

    Procedural History

    After Gaddy sued, Eyler moved for summary judgment, arguing the absence of a ‘serious injury’ under Insurance Law § 5102(d), supporting the motion with a physician’s affidavit indicating a normal neurological examination for Gaddy.

    The Appellate Division affirmed the lower court’s grant of summary judgment to Eyler, finding that Gaddy failed to demonstrate a ‘serious injury’ as required by the No-Fault Insurance Law.

    The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    1. Whether the plaintiff presented sufficient evidence to demonstrate a ‘permanent consequential limitation of use of a body organ or member’ or a ‘significant limitation of use of a body function or system’ within the meaning of Insurance Law § 5102(d)?

    2. Whether the plaintiff presented sufficient evidence to demonstrate a ‘permanent loss of use of a body organ, member, function or system’ within the meaning of Insurance Law § 5102(d)?

    3. Whether the plaintiff presented sufficient evidence to demonstrate that she suffered an injury which prevented her from performing substantially all of her daily activities for 90 out of the 180 days following the accident, as required by Insurance Law § 5102(d)?

    Holding

    1. No, because the plaintiff’s doctors only concluded that she had a minor limitation of movement in her neck and back, which is considered insignificant under the no-fault statute.

    2. No, because while there was evidence of the plaintiff’s subjective pain, there was no objective evidence supporting a claim of permanency, and the neurosurgeon’s statements were speculative.

    3. No, because the plaintiff only experienced a slight impediment to her usual activities; she missed only two working days and was able to maintain most of her daily routine, and she provided no evidence to support her claim that her household and recreational activities were curtailed.

    Court’s Reasoning

    The court reasoned that to overcome a summary judgment motion in a No-Fault case, the plaintiff must present objective evidence demonstrating a ‘serious injury’ as defined by the statute. The court emphasized that a ‘minor, mild or slight limitation of use’ is considered insignificant under the statute, citing Licari v Elliott, 57 NY2d 230, 236. Regarding the claim of ‘permanent loss of use,’ the court found the plaintiff’s evidence, particularly the neurosurgeon’s speculative statements, insufficient to establish permanency. The court noted, “the expert’s statements reflect the speculative nature of plaintiff’s condition.” Furthermore, the court dismissed the treating physician’s affidavit as consisting of conclusory assertions tailored to meet statutory requirements. Finally, regarding the 90/180-day rule, the court stated that the plaintiff must prove she was “curtailed from performing [her] usual activities to a great extent rather than some slight curtailment” (Licari v Elliott, supra, at 236). Because the plaintiff only experienced a slight impediment to her usual activities, she failed to meet this threshold. The court emphasized the need for objective evidence and a substantial curtailment of activities to meet the statutory threshold for a ‘serious injury.’

  • O’Mara v. Petrolito, 64 N.Y.2d 724 (1984): Admissibility of Expert Testimony and the “Serious Injury” Threshold in No-Fault Cases

    O’Mara v. Petrolito, 64 N.Y.2d 724 (1984)

    Expert opinion testimony must be based on facts in the record or personally known to the witness, or the out-of-court material relied upon must be demonstrably reliable within the relevant profession.

    Summary

    In a personal injury case arising from a motor vehicle accident, the plaintiff, O’Mara, sought to recover for injuries, claiming they met the “serious injury” threshold under New York’s No-Fault Law. The Appellate Division reversed the trial court’s judgment in favor of O’Mara, finding insufficient evidence to establish a prima facie case of serious injury. The Court of Appeals affirmed, holding that the plaintiff’s evidence regarding a fracture (spondylolisthesis) was inadmissible because the expert’s opinion was not properly based on admissible evidence or reliable out-of-court material, and her own testimony contradicted claims of permanent loss of use of a body function.

    Facts

    O’Mara sustained personal injuries after being struck by Petrolito’s bus and claimed a right to common-law recovery by asserting a “serious injury,” as defined in the Insurance Law. She presented evidence of a fracture, permanent loss of use of a body function, and a nonpermanent impairment lasting at least 90 out of 180 days post-accident. The jury found for O’Mara on the fracture and permanent loss claims but against her on the 90/180-day claim.

    Procedural History

    The Special Term entered a judgment upon a jury verdict in favor of O’Mara. The Appellate Division reversed, finding the evidence insufficient to establish a prima facie case of “serious injury.” O’Mara appealed to the Court of Appeals.

    Issue(s)

    1. Whether the plaintiff’s physician’s testimony regarding the spondylolisthesis constituted admissible evidence of a fracture, given that the X-rays were not produced and admitted into evidence.

    2. Whether the plaintiff’s physician’s opinion that the spondylolisthesis was caused by a fracture was admissible, considering that the opinion was based on a discussion with a radiologist regarding an unknown study.

    Holding

    1. While it was error to allow the doctor’s testimony regarding the X-ray without the X-ray itself being entered into evidence, the matter was not preserved for review because there was no objection at trial.

    2. No, because the physician’s opinion lacked a proper foundation since it was based on an out-of-court statement from a radiologist without establishing the reliability of the radiologist’s opinion or the underlying study.

    Court’s Reasoning

    The court found that although it was technically an error to admit the physician’s testimony about the X-ray without producing the X-ray itself, the error was not preserved for appeal because the defendant did not object at trial. Regarding the physician’s opinion that spondylolisthesis was caused by a fracture, the court emphasized the rule that expert opinion must be based on facts in the record or personally known to the witness. The court acknowledged exceptions where an expert relies on out-of-court material that is either professionally reliable or comes from a witness subject to cross-examination. Here, the physician’s reliance on a radiologist’s opinion about an undefined study did not meet the “professional reliability” exception because no evidence was presented to establish the reliability of the radiologist’s opinion or the underlying study. The court stated: “It is settled and unquestioned law that opinion evidence must be based on facts in the record or personally known to the witness.” Because the physician’s opinion was inadmissible, there was no basis for the jury to find that the spondylolisthesis was the result of a fracture constituting a “serious injury” under the No-Fault Law. The absence of this testimony undermined the plaintiff’s case regarding the “serious injury” threshold.