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Surgery instruments, file photo. REUTERS Fabrizio Bensch

Spinal surgery sinks personal injury suit

8/1/2012 COMMENTS (0)

NEW YORK, Aug 1 (Reuters) - A woman spoiled critical evidence in her personal injury lawsuit by undergoing spinal surgery before completing court-ordered medical examinations, a New York judge ruled Tuesday.

Queens County Supreme Court Justice Charles Markey dismissed Susanna Mangione's lawsuit, saying that her decision to undergo spinal surgery had destroyed defendants' opportunity to independently verify injuries Mangione claims she suffered in a 2009 car accident.

"Considering the irreparable prejudice to defendants of the spoliation, where Mangione's surgery has eviscerated the means of defense doctors and lawyers of tracing the causal connection of Mangione's ailments to the most recent accident, and the intentional thwarting of three court orders, dismissal is the appropriate sanction," Markey wrote.

The judge said the issue was one of first impression under New York law.

According to the ruling, Mangione was involved in a car accident in 2009 while riding in a taxi in Queens.

The following year, she filed a personal injury lawsuit against taxi operator Ramabel Limo Inc and driver Glener Simbana, as well as Jules Jacobs, the driver of the car that collided with the taxi.

Mangione was ordered at least three times to undergo an independent medical examination, or IME, the ruling said. She never did, and when an IME scheduled for Feb. 22 was adjourned to March 7, Mangione went ahead and had elective spinal surgery on Feb. 27, according to the ruling.

Lawyers for Mangione argued that she had previously undergone spinal surgery in 2010, following the taxi accident and an earlier bus accident. She also underwent four earlier IMEs, her lawyers from Chopra & Nocerino argued.

But Markey said his review of Mangione's legal filings suggested that the earlier IMEs dealt with w hether she was entitled to no-fault first-party benefits, not with the legitimacy of her claims of "serious injury" under New York's Insurance Law, the key claim in the suit and a requirement to prove damages.

"No reasonable person would deprive a plaintiff of life-saving surgery or any operation that would curb intense pain and alleviate injury," Markey wrote. "Plaintiff has not demonstrated anything or proffered any evidence on this issue."

A lawyer for Mangione, Alex Nocerino, called it a "terrible decision."

"We're exploring all of our options, including motion to re-argue or appeal," he said.

Lawyers for the other parties did not immediately return a request for comment Wednesday.

The case is Mangione v. Jacobs et al, New York State Supreme Court, Queens County, No. 7842/2010.

For Mangione: Sameer Chopra and Alex Nocerino of Chopra & Nocerino.

For Jules Jacobs: Debra Malone and Kevin Flores of Mendolia & Stenz.

For Ramabel Limo and Glener Simbana: Ira Goldstein of O'Connor O'Connor Hintz & Deveney.

(Reporting by Jessica Dye)

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