When Your Own IME Doctor Kills Your Motion

Defense attorneys preparing serious injury motions under Insurance Law 5102(d) spend most of their time dissecting the plaintiff's evidence. But in a review of recent appellate and trial court decisions, the most common reason these motions fail is not the plaintiff's submissions. It is the defense's own. The IME doctor's report does not just support the motion. It can destroy it.

Three patterns emerge from the caselaw, and they all come down to the same problem: the narrative says one thing, but the numbers say another.

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The Expert Who Contradicts Himself

The most straightforward failure: the IME doctor records objective findings during the examination that undercut his own conclusions. Courts catch this every time.

In Lofton v. Colon (4th Dept, July 2025), the defense expert opined that the plaintiff was "back to his pre-2018 motor vehicle baseline" with "no disability." But during his own examination, the same expert recorded range of motion deficits in the lumbar spine. He also attributed the plaintiff's condition to preexisting degeneration without reviewing any pre-accident medical records or imaging. The Fourth Department found the opinion "speculative, conclusory, and unsubstantiated." Motion denied in part; complaint reinstated.

Tesiero v. Castor (3d Dept, June 2025) is a detailed dissection of a defense expert report failure by failure. The Third Department identified five deficiencies in the same report: (1) the doctor left blank his finding on the plaintiff's central complaint, the lumbar spine; (2) his recorded ROM and a positive FABER test "actually served to support" the plaintiff's serious injury claim; (3) he misstated the medical records, claiming no ER complaints of lower back pain, which was "contradicted on the first page of the notes for each visit"; (4) he omitted an entire course of pain management treatment, including injections and nerve ablation; and (5) he failed to address the 90/180-day claim. The defense failed its prima facie burden.

The companion cases Rook v. Dibble and Rook v. Wood (4th Dept, Jan. 2025) illustrate the most extreme version of this problem. The defense's own physician examined the plaintiff, reviewed records including digital motion x-rays showing cervical ligament damage, and concluded that the plaintiff sustained causally related injuries. He also set forth quantified ROM loss. The Fourth Department held that the defense's "own submissions contain objective proof of a causally related injury as well as a designation of a numeric percentage of [her] loss of range of motion sufficient to constitute a serious injury." The defense doctor proved the plaintiff's case.

The takeaway is straightforward. Courts read the numbers in the report, not just the conclusion. If the examination findings show limitations or causally related injuries, it does not matter what the final paragraph says.

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The 20% Line: One Number That Tanks the Motion

Courts have drawn a rough quantitative line for evaluating range of motion deficits. Limitations under approximately 15% are insignificant as a matter of law. At 20% or more, the limitation "may be significant." If the defense's own IME doctor records 20% or above on any measurement, the motion is in jeopardy on that body part.

The framework traces to the Court of Appeals. In Dufel v. Green, 84 NY2d 795 (1995), the Court established that a 20% ROM limitation may be "significant" under Section 5102(d).

Below that threshold, the appellate courts have consistently held that minor deficits do not qualify. The Second Department has found the following insufficient: 15% (Waldman v. Dong Kook Chang, 175 AD2d 204 (1991)), 13% (Il Chung Lim v. Chrabaszcz, 95 AD3d 950 (2012)), 12% (McLoud v. Reyes, 82 AD3d 848 (2011)), and 10% (Cebron v. Tuncoglu, 109 AD3d 631 (2013)). The Fourth Department in McIntyre v. Salluzzo, 159 AD3d 1547 (2018), stated that limitations of "approximately 16% or less . . . could be considered insignificant."

Two recent trial court decisions from Kings County show the 20% line in practice.

In Garcia v. Udensi (Sup Ct Kings County, June 2025), the defense's own IME doctor recorded a 20% decrease in lumbosacral spine extension (20 out of 25 degrees). The court applied Dufel and held the defense had not met its prima facie burden on that body part. And because one body part survived, the plaintiff was "entitled to seek recovery for all injuries." But the motion succeeded as to a second plaintiff whose limitations were only 11.1% and 13.3%, which the court found "inconsequential."

Cherfilus v. McAlmon (Sup Ct Kings County, Oct. 2025) is a defense win that synthesizes the caselaw into a clear rule. The IME doctor found a 12.5% limitation in right shoulder internal rotation and 13.3% in right knee flexion. The court held these "low-level limitations are insignificant" and, noting that it was "unable to locate Second Department decisions regarding limitations between 15% and 20%," stated: "this Court finds that limitations of 20% or more are significant, i.e., consequential and those less than that are not." Prima facie burden met.

The practical reality: the IME doctor needs to know the 20% line before the exam, not after. If any measurement comes back at 20% or above, that number will be used against the defense, regardless of the narrative conclusion.

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The Norm Trap: When "Normal" Isn't Normal

A subtler version of the same problem. The defense IME doctor uses non-standard ROM norms, recording measurements as "normal" against unusually low baselines. When the court or plaintiff's counsel applies standard norms to the defense doctor's own measurements, the recalculated deficits can be devastating.

Rivera v. Devdariani (Sup Ct Kings County, Feb. 2026) is the clearest example. The defense IME doctor (Dr. Nipper) found lumbar flexion at 50 degrees and called it normal (50/50). The plaintiff's expert (Dr. Mathew) used a norm of 90 degrees for lumbar flexion. As the court noted, "[w]hat was striking to the Court was that in assessing Plaintiff's range of motion in the lumbar spine and left wrist, there were differences between Drs. Mathew and Nipper regarding the norms for certain movements." The court applied Dr. Mathew's norms to Dr. Nipper's own findings and recalculated: a 44.4% limitation in lumbar flexion, a 30% limitation in lumbar lateral bending, and a 25% limitation in left wrist flexion. The defense never explained the discrepancy. Motion denied.

The lesson is simple. Before filing, compare the norms the IME doctor used against AMA Guidelines and the norms used by the plaintiff's treaters. A defense expert who uses unusually low "normal" values is handing the plaintiff a ready-made argument that his own measurements reveal significant limitations.

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What the Winning Reports Look Like

Not every IME report sinks the motion. When the findings and conclusions tell a consistent story, the results are decisive.

Fernandez v. Sukhdeep (1st Dept, Jan. 2026) is a defense win built on careful comparative analysis. The defense experts, a neurologist and an orthopedist, reviewed and compared the actual MRI films from 2013 and 2021, demonstrating that the post-accident studies showed only "normal progression of conditions that were already at least partially degenerative in 2013." Numbers and narrative aligned. As the court noted, "whether an injury is 'serious' within the meaning of Insurance Law § 5102(d) is an inquiry distinct from whether the injury was caused by the accident, and a defendant need not establish a lack of one to establish, prima facie, a lack of the other." The plaintiff's "subjective belief" that he had recovered from the prior accident was insufficient. Complaint dismissed.

In Cherfilus v. McAlmon (Sup Ct Kings County, Oct. 2025), the IME doctor's ROM measurements were all under 15% (12.5% shoulder, 13.3% knee). The numbers supported the conclusion of no serious injury. And when the plaintiff's treating doctor's own records showed ROM that improved to near-normal and then suddenly spiked years later, the court demanded an explanation the plaintiff could not provide.

Esteban v. Dubuisson (2d Dept, Aug. 2025) shows what happens when the defense does it right and the plaintiff does it wrong. The defense established that the plaintiff's injuries were "degenerative, preexisting, and not caused by the accident." The expert's findings and conclusions were internally consistent. The plaintiff's expert failed to address the defense findings, and a motion to renew was denied.

The winning reports share three features: (1) internally consistent findings and conclusions, (2) ROM numbers that stay well below the 20% line, and (3) proactive comparison of pre- and post-accident imaging rather than conclusory causation opinions.

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Review the Numbers Before You File

The common thread across all three failure patterns is the same: the defense attorney filed the motion without critically reading the IME report's data. The narrative conclusion sounded right, so nobody checked whether the numbers supported it.

A few practical points for review:

Cross-check every ROM measurement against the expert's conclusion. If the exam found limitations, the conclusion must explain them. A conclusion that says "no disability" while the measurements show ROM deficits will not survive scrutiny. (Lofton.)

Calculate the percentage deficit for every measurement. If anything hits 20%, flag it before filing. At that threshold, the defense has not met its prima facie burden on that body part, and a single surviving body part entitles the plaintiff to seek recovery for all injuries. (Garcia.)

Compare the norms the expert used against AMA Guidelines. If there is a discrepancy between the defense expert's norms and the plaintiff's treaters' norms, address it proactively or get a supplemental report. If the defense does not explain the discrepancy, the court will apply the plaintiff's norms to the defense doctor's findings. (Rivera.)

Review your own submissions as if you are plaintiff's counsel. If anything in the report could be used to support a finding of serious injury, the court will find it. The defense's "own submissions" language in Rook and Zazulak is a warning: courts do not limit their review to the conclusions.

The law is not the problem. The report is. Read it like the other side will.

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About This Research

I'm Tommy Eberle, CEO of DocketDrafter. I'm not a lawyer. Here's how this article came together:

• I searched CourtListener for New York appellate and trial court opinions involving serious injury motions under Insurance Law 5102(d), focusing on cases where the defense's own IME report was at issue.
• I read the opinions with Claude Code, looking for patterns in how courts evaluate IME findings against the expert's own conclusions.
• I used Claude Code to help draft the article, then manually validated all quotes against the original opinions and added clickable links to every case cited.

Every opinion referenced in this article is listed below. Each link goes to the full text on CourtListener or NY Courts.

If you have comments or want to discuss the research process in detail, email me at tommy@docketdrafter.com.