In the case of Kafaoglu v. Thomas, No. 14-CV-1842 (C.P. Lacka. Co. Dec. 21, 2018 Nealon, J.), the court applied the Mudano Rule in a case where the Defendant filed a Motion for Partial Summary Judgment asserting that conflicting opinions by medical experts for the Plaintiff prevented the Plaintiff from proceeding to the jury on certain portions of his claims.  
This matter arose out of a motor vehicle accident in which the Plaintiff alleged, in part, a cervical spine injury requiring a surgical repair.  
Evidence gathered during the course of discovery confirmed that the Plaintiff had a prior cervical spine fusion surgery.   The evidence also revealed that the Plaintiff did not treat over the first eleven (11) days following the subject motor vehicle accident.  As such, the defense contended that the alleged causation of the Plaintiff’s post-accident cervical spine complaints were in question.
During the course of his treatment after the subject accident, the Plaintiff eventually underwent a cervical spine surgery for an alleged disc injury allegedly arising out of the motor vehicle accident.
The Plaintiff initially produced expert reports from the Plaintiff’s treating neurosurgeon who performed the surgery.  That neurosurgeoin opined that he was “unable to say with 100% certainty that this car accident led to [the Plaintiff’s] C3-4 disc herniation.”   The neurosurgeon advised that he did not have any pre-accident imaging studies to compare with the post-accident studies.   
In his reports, the neurosurgeon also stated that his findings that he personally observed during the course of his surgery on the Plaintiff’s cervical spine suggested that degenerative disc disease was at issue, rather than any acute process.  
During the course of discovery, the Plaintiff also secured the Plaintiff’s IME report from a physiatrist in which that physiatrist offered his conclusions that the subject motor vehicle accident aggravated the Plaintiff’s pre-existing cervical stenosis and allegedly necessitated the post-accident cervical spine surgery.  
The defense filed a Motion for Partial Summary Judgement with respect to the Plaintiff’s claims related to his cervical disc injury and cited the Mudano rule for the proposition that the opinions of the Plaintiff’s medical experts were irreconcilably inconsistent and, therefore, “legally incompetent.”
The defense requested a summary judgment on the particular issue of the Plaintiff’s alleged disc injury and surgery not being causally related to the accident by competent expert medical evidence.  The argument of the defense was that, if the Plaintiff’s own experts could not agree on a conclusion of whether the disc injury and surgery were caused by the accident, how could a jury of lay people come to such a conclusion.
After a review of the medical evidence presented, the court concluded that, given that the Plaintiff only currently intended to present the expert opinion of his treating physiatrist, the Mudano rule was not implicated given that there would not be a presentation of two (2) contradictory expert reports on the part of the Plaintiff.   
The court additionally held that, even if the opinions of both experts was put into evidence (which would likely be done by the defense), reviewing the experts’ opinions did not reveal them to constitute fatal and absolute contradictions with one another on a fundamental issue.  Rather, to the extent that the opinions were found to conflict with one another, the court felt that this issue should be left for the jury to decide.  

As such, the court denied the Motion for Partial Summary Judgment filed by the defense.

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