THIS CASE SURE WENT POP
After she allegedly sustained injuries when a Pepsi-Cola employee ran over her right foot with a heavy cart carrying beverages at a supermarket, MJM filed a personal injury case in the New York County Supreme Court seeking monetary damages.
When Pepsi later moved for pre-trial relief in its favor – via a motion for summary judgment, seeking to dismiss all claims of injury except for a laceration/abrasion of the plaintiff's right foot -- the court denied that request.
On appeal, the Appellate Division, First Department, noted that record supported the conclusion that the accident did not cause or exacerbate MJM claimed injuries. To that end, Pepsi presented evidence, including a previous personal injury lawsuit filed by MJM back in 2019 claiming nearly identical injuries, along with an expert opinion from Dr. EW, which concluded that the foot laceration could not have caused any alleged medial ankle neuropathy and that the hammertoes were preexisting conditions. Dr. EW based his opinion on photographs taken on the day of the incident and noted that any abnormalities found in a July 2022 MRI were due to preexisting degenerative conditions.
MJM failed to rebut that evidence. Her medical expert claimed the injuries were related to the accident but also acknowledged they could be preexisting conditions aggravated by the incident. Her doctor did not address the possibility that the MRI abnormalities were preexisting.
Given the foregoing, the AD1 reversed the court below, and granted Pepsi’s motion and dismissed the bulk of MJM’s claims, except for the laceration/abrasion of the right foot.
Bet she found that extremely abrasive.
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DECISION