Wirt et al v. Morancie et al
Filing
120
MEMORANDUM AND ORDER: For the reasons stated in the attached memorandum and order, the United States' 64 & 72 motions for summary judgment are GRANTED, Plaintiffs' 87 cross-motion for partial summary judgment is DENIED, and the NYCTA and Lopez's 112 motion for summary judgment is GRANTED in part and DENIED in part. Ordered by Judge Pamela K. Chen on 3/31/2017. (Chivers, Jeffrey)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LAURA A. WIRT and LAURA K.
RODRIGUEZ,
Plaintiffs,
MEMORANDUM & ORDER
-against10-CV-5073 (PKC) (ST)
UNITED STATES OF AMERICA, ANGEL
LOPEZ, and NEW YORK CITY TRANSIT
AUTHORITY,
Defendants.
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PAMELA K. CHEN, United States District Judge:
Plaintiffs Laura A. Wirt and Laura K. Rodriguez assert claims of negligence and negligent
training against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1671
(“FTCA”), and against the New York City Transit Authority (“NYCTA”) and NYCTA employee
Angel Lopez pursuant to New York common law, based on injuries that they allegedly incurred
during a motor vehicle accident between a car owned and operated by the United States and a
public bus operated by the NYCTA and driven by Lopez. The following motions are before the
Court: (i) the United States’ motion for summary judgment dismissing each of Wirt’s claims,
(ii) the United States’ motion for summary judgment dismissing each of Rodriguez’s claims,
(iii) the NYCTA and Lopez’s joint motion for a summary judgment finding that it has no liability
to any party in the action, and (iv) Plaintiffs’ cross-motion for partial summary judgment as to
certain elements of their claims. For the reasons stated below, the United States’ motions for
summary judgment are GRANTED, Plaintiffs’ cross-motion for partial summary judgment is
DENIED, and the NYCTA and Lopez’s motion for summary judgment is GRANTED in part and
DENIED in part.
I. Background1
A. Overview
On April 23, 2008, around noon, Plaintiff Laura A. Wirt and her daughter, Plaintiff Laura
K. Rodriguez, were seated next to each other on a public bus operated by the New York City
Transit Authority. (Wirt 56.1 ¶ 5.) As the bus passed through Grand Army Plaza in Brooklyn, the
driver, Defendant Angel Lopez, “suddenly, abruptly and without any warning” brought the bus to
a halt. (Dkt. 68, Ex. A (Verified Complaint) ¶ 8.) Plaintiffs were propelled forward in their chairs,
“started to get a little airborne,” and then, as the bus was coming to a halt, were jolted back into
their seats by the impact of another vehicle—a 2003 Oldsmobile Alero sedan owned by the United
States General Services Administration (“GSA”)—colliding with the rear fender of the bus.
(USA’s 56.1 Response (Wirt) ¶¶ 2, 5.) Both Plaintiffs experienced some degree of pain as a result
of being slammed back into their seats. (Dkt. 97-3 (Rodr. Decl.) ¶ 9; Wirt 56.1 ¶ 5.)2
1
Except as otherwise noted, the facts stated in this section are taken from the parties’ Local
Rule 56.1 submissions and the record evidence cited therein. (See Dkt. 104 (Wirt’s 56.1 Statement
(“Wirt 56.1”)); Dkt. 105 (Rodriguez’s 56.1 Statement (“Rodr. 56.1”)); Dkt. 70 (United States’
Response to Wirt’s 56.1 Statement (“USA’s 56.1 Response (Wirt)”); Dkt. 71 (United States’
Response to Rodriguez’s 56.1 Statement (“USA’s 56.1 Response (Rodr.)”).)
Where the Court cites to Wirt’s or Rodriguez’s Rule 56.1 Statement, it also in some
instances refers, as noted, to the United States’ responses thereto. (See Dkts. 81 (Wirt) &
82 (Rodr.).) Where a party’s Rule 56.1 Statement is cited and there is no contrary evidence in the
record, the Court deems that fact to be undisputed and admitted. Unless otherwise noted, a
standalone citation to a 56.1 Statement denotes that the Court has deemed the underlying factual
allegation undisputed. Any citation to a party’s Rule 56.1 Statement incorporates by reference the
documents cited therein unless otherwise noted. Where relevant, however, the Court may cite
directly to the underlying document.
2
The parties devote a substantial portion of their submissions to disputing the details of
the collision between the GSA vehicle and the NYCTA bus. Given the bases for its ruling on the
2
After the accident, Wirt and Rodriguez sought treatment in the emergency room of the
Wyckoff Heights Medical Center (“Wyckoff Heights”). (Rodr. 56.1 ¶ 10.) Both Plaintiffs
reported pain in their neck, back, and shoulders resulting from the accident. (USA’s 56.1 Response
(Wirt) ¶ 38; USA’s 56.1 Response (Rodr.) ¶ 16.) Both Plaintiffs underwent examinations and
received treatment in the emergency room before being discharged. (Wirt 56.1 ¶ 12; Rodr.
56.1 ¶ 10.) Both Plaintiffs received continuing medical treatment after being discharged from
Wyckoff Heights, and both Plaintiffs reported experiencing physical and mental pain and suffering
in the ensuing years, as summarized in greater detail below.
(Wirt 56.1 ¶¶ 24-35;
Rodr. 56.1 ¶¶ 20-32.)
On July 17, 2009, Plaintiffs filed a Verified Complaint in New York state court against the
NYCTA, alleging claims of negligence and negligent training under New York common law, and
claims for “basic economic loss” and “first party benefits” under New York’s “No-Fault” motor
vehicle accident statute, N.Y. Ins. Law §§ 5101 et seq. (Dkt. 68, Ex. A (Verified Complaint).)
While that case was still pending, in March 2010, Plaintiffs filed administrative tort claims against
the GSA, alleging negligence and negligent training pursuant to the Federal Tort Claims Act
(“FTCA”). (See Dkt. 7 ¶¶ 18, 49; Dkt. 8 ¶¶ 18, 49.) Thereafter, in November 2010, Plaintiffs
commenced this action in federal court, asserting claims of negligence and negligent training
pending motions, see infra, the Court need not delve into those details at length. It suffices to note
that the four eyewitnesses whose testimony is in the record—i.e., Wirt, Rodriguez, the bus driver
(Lopez), and the GSA driver (Horace Morancie)—gave materially different accounts of the
collision, such that there are genuine issues of fact concerning the speed at which the bus was
traveling through Grand Army Plaza, the swiftness with which the bus stopped, the force with
which the GSA vehicle struck the bus, and the impact that all of these factors had on the passengers
aboard the bus, including Plaintiffs. (See, e.g., USA’s 56.1 Response (Rodr.) ¶¶ 4-5, 8; Dkt. 68,
Ex. A ¶ 8.) Indeed, there may even be a genuine issue as to whether Plaintiffs were on the bus at
all. (USA’s 56.1 Response (Rodr.) ¶ 5.) But again, the Court need not rule on these issues—which
go to the substantive elements of Plaintiffs’ claims—because the Court can resolve all pending
motions on the independent grounds stated herein.
3
against the United States pursuant to the FTCA.3 (Dkt. 1; see also Dkt. 7 (Am. Compl.).)4 Through
their various negligence claims, Plaintiffs seek to recover non-economic damages for pain and
suffering they allegedly experienced as a result of the collision between the GSA vehicle and the
NYCTA bus on April 23, 2008. (Dkt. 7; Dkt. 68, Ex. A.) Indeed, as discussed below, because of
the No-Fault statutory scheme, Plaintiffs’ negligence and negligent training claims, at common
law and under the FTCA as well, survive only if Plaintiffs are entitled to non-economic damages
by virtue of having suffered a “serious injury.” See Pommells v. Perez, 4 N.Y. 3d 566, 571 (N.Y.
2005) (“Only in the event of ‘serious injury’ as defined in the statute, can a person initiate suit
against the car owner or driver for damages caused by the accident.”).
B. Plaintiff Wirt’s Medical History and Alleged Injuries
The parties have submitted voluminous documentation of Plaintiff Wirt’s medical history.
1. Wirt’s Medical History Before the Accident
Wirt was fifty-two years old at the time of the April 23, 2008 accident. (USA’s 56.1
Response (Wirt) ¶ 14.) For over thirty years before the accident—since Wirt was eighteen years
old—she suffered from back pain. (Id. ¶ 15.) At least as of May 2004, Wirt began receiving
medical treatment for back pain and ambulation issues. (USA’s 56.1 Response (Wirt) ¶¶ 15-16.)
In the four years leading up to the April 2008 accident, Wirt made numerous visits to medical
providers for treatment of various physical ailments, including significant impairments affecting
her neck, spine, and lower extremities.
3
The FTCA does not create any substantive rights or claims; rather it permits the United
States to be sued, under certain specified circumstances, for state law causes of action, such as
negligence and negligent training. See Celestine v. Mt. Vernon Neighborhood Health Ctr., 403
F.3d 76, 79-80 (2d Cir. 2005); Wright v. United States, 162 F. Supp. 3d 118, 127 (E.D.N.Y. 2016).
4
Plaintiffs amended their complaint to properly name the United States as the only
defendant under the FTCA. (Dkt. 7.)
4
In May 2004, Wirt was admitted to Wyckoff Heights for three days due to complaints of
severe low back pain and difficulty ambulating. (USA’s 56.1 Response (Wirt) ¶ 16.) In April
2005, Wirt underwent x-rays on her right foot and ankle (“April 2005 X-Rays”), which showed
degenerative changes in her ankle joint. (Id. ¶ 17.) In May 2005, Wirt was admitted to Wyckoff
Heights for five days due to complaints of lower back pain. (Id. ¶ 18.) During that stay, Wirt
underwent back x-rays (“May 2005 X-Rays”) that indicated a history of trauma in her upper and
lower spine, the formation of bone spurs in certain vertebrae in her upper and lower spine, and a
narrowing of the interarticular spaces in her lower spine. (Id.)
In June 2005, Wirt underwent a magnetic resonance imaging (MRI) that indicated
degenerative disc disease, a small herniation in Wirt’s T12 and L1 vertebrae, and marked
desiccation and loss of volume in other of Wirt’s vertebrae. (USA’s 56.1 Response (Wirt) ¶ 19.)
The report also indicated bone deformities suggestive of sickle cell anemia. (Id.)
In July 2005, Wirt underwent an MRI (“July 2005 MRI”) that indicated spinal cord
compression in certain vertebrae, abnormalities in neural signals from certain vertebrae, bone
softening in certain vertebrae, and narrowing of the spinal cord in certain vertebrae. (Id. ¶ 21.)
The radiologist who reviewed the July 2005 MRI construed the MRI as indicative of multilevel
degenerative disease of the cervical spine with compression of the spinal cord, spinal narrowing,
and bone softening in certain locations. (Id.)
In November 2005, Wirt was admitted to Wyckoff Heights for three days due to
uncontrolled diabetes. (Id. ¶ 22.) An examination at Wyckoff Heights indicated that Wirt had a
loss of sensation in her feet and that she walked with difficulty. (Id. ¶ 22.) Around the same time,
in November 2005, Wirt was referred by a physician to consult with pain management specialists
5
concerning Wirt’s complaints of lower back pain radiating to her legs, which Wirt said she had
experienced for more than twenty years. (Id. ¶ 23.)
In February 2006, a pain management physician referred Wirt to physical therapy for pain,
weakness, and decreased muscle strength in her lower back, as well as residual pain and weakness
in her right ankle. (Id. ¶ 24.) In April 2006, Wirt was again referred to a pain management clinic
for her history of arthritis, disk herniation, and chronic back pain. (Id. ¶ 25.)
In June 2006, a nurse practitioner at the pain management clinic referred Wirt to
neurosurgical specialists for evaluation of her history of persistent neck pain and lower back pain.
(Id. ¶ 26.) The nurse practitioner noted that the July 2005 MRI had shown compression in Wirt’s
spinal cord. (Id.)
In July 2006, Wirt presented to the Wyckoff Heights emergency room, complaining of
neck pain and lower back pain. (Id. ¶ 27.) Wirt spent four days in inpatient care, during which
time her diabetes was observed as “uncontrolled.” (Id.)
In September 2006, Wirt was hospitalized at Wyckoff Heights due to uncontrolled high
blood pressure and diabetes. (Id. ¶ 28.) Wirt also complained of neck and back pain. (Id.)
In January 2007, Wirt was again referred by a physician to pain management for evaluation
of her degenerative disease of the cervical spine with cord compression and spinal narrowing.
(Id. ¶ 29.) Later that month, based in part on a review of the July 2005 MRI, a pain management
clinician referred Wirt to neurosurgery for evaluation of her history of persistent neck and lower
back pain. (Id.)
In March 2007, Wirt underwent an MRI (“March 2007 MRI”) that indicated multilevel
degenerative disease of the cervical spine, as well as spinal compression and softening. (Id. ¶ 31.)
In April 2007, Wirt was seen at the Wyckoff Heights pain management clinic, where a physician
6
observed that Wirt was a long-time patient of the pain management clinic who had been seen for
chronic pain associated with multilevel degenerative disc disease of the cervical and lumbar spine
with associated spinal narrowing. (Id. ¶ 32.) The physician further noted that Wirt suffered
neurological problems in her lower extremities due to diabetes, and that she was taking Percoset
for pain relief. (Id.)
In August 2007, Wirt spent seven days in inpatient care at Wyckoff Heights after being
referred to the emergency room there with back and neck pain and elevated blood sugar. (Id. ¶ 33.)
The Wyckoff Heights staffperson who conducted Wirt’s triage in the emergency room noted that
Wirt was wearing a neck brace and ambulating with a cane. (Id.) During her stay in inpatient
care, Wirt complained of “severe” chronic back and neck pain, and a neurosurgeon who examined
her noted bilateral hand weakness, decreased ranges of motion in her neck and back, and reduced
motor strength. (Id.) In September 2007, Wirt was hospitalized in the Jamaica Hospital Medical
Center (“Jamaica Hospital”) after presenting to the emergency room with uncontrolled diabetes
and cellulitis with left thigh abscess. (Id. ¶ 34.) The triage nurse at Jamaica Hospital observed
that Wirt walked with a cane, and Wirt’s progress notes state that Wirt complained of neck pain
while in the hospital. (Id.)
In October 2007, Wirt spent three days in inpatient care at Jamaica Hospital for cardiac
evaluation. (Id. ¶ 35.) During her stay, Wirt was observed to be using a cane and wearing a soft
neck collar. (Id.) Progress notes from the hospitalization state that Wirt complained of neck,
shoulder, and back pain, and that she wore a cervical collar while hospitalized. (Id.)
In December 2007, a pain management clinician referred Wirt to a neurosurgeon for
evaluation for possible surgery due to her complaints of severe neck pain radiating to both
shoulders, as well as numbness and tingling in her upper extremities, which apparently had
7
worsened in the prior year. (Id. ¶ 36.) The next month, January 2008, Wirt was seen by a
neurosurgeon at Wyckoff Heights, who noted that he had examined Wirt in July 2007, but that she
had failed to follow through on tests that he had prescribed at that time. (Id. ¶ 37.) The
neurosurgeon diagnosed Wirt with chronic neck and back pain, and instructed Wirt to return to the
Wyckoff Heights neurosurgery clinic after she underwent additional testing. (Id.)
As of April 23, 2008, the date of the motor vehicle accident at issue in this case, Wirt
had not obtained the additional testing ordered by the Wyckoff Heights neurosurgeon in
December 2007.
2. Wirt’s Medical History After the Accident
On April 23, 2008, approximately three hours after the accident, Wirt presented to the
Wyckoff Heights emergency room with complaints of pain in her neck, back, and shoulders.
(USA’s 56.1 Response (Wirt) ¶ 38.) Wirt told the medical staff and clinicians at Wyckoff Heights
that she had been in a motor vehicle accident. (Id.)
Later in the day on April 23, 2008, Wirt underwent x-rays (“April 23, 2008 X-Rays”) that
showed no evidence of fracture or dislocation, but indicated moderate degeneration in Wirt’s
cervical spine. (USA’s 56.1 Response (Wirt) ¶ 39.)5 Later that day, Wirt was admitted into
inpatient care in Wyckoff Heights’ family medicine unit, with a status of “post-MVA”
(post-motor vehicle accident) with complaints of neck, back, and leg pain but no fractures;
uncontrolled diabetes; uncontrolled hypertension; asthma; and rheumatoid arthritis. (Id. ¶ 40.)
On April 24, 2008, a clinician in Wyckoff Heights’ family medicine unit ordered a
neurosurgical consult, noting that Wirt had a past medical history of cervical and lumbar
5
The April 23, 2008 X-Rays are discussed in greater detail below, in the context of
analyzing expert reports submitted by the United States.
8
narrowing, chronic neck and back pain, and had presented to the emergency room complaining
of neck, back, and leg pain after being in a motor vehicle accident. (USA’s 56.1 Response
(Wirt) ¶ 41.) Later that day, a neurosurgeon examined Wirt, and Wirt told the neurosurgeon
that she used a walker 50% of the time and a cane daily, and that she had a history of dropping
objects, frequent falls, and urinary incontinence.” (Id. ¶ 42.) The next day, the attending
neurosurgeon recommended that Wirt undergo spinal surgery, but Wirt stated that she would
prefer to defer surgery at that time. (Id. ¶ 43.)
On April 27, 2008, a physician in the Wyckoff Heights family medicine unit recorded that
Wirt’s neck and back pain had resolved, and that she had no pain. (USA’s 56.1 Response (Wirt)
¶ 44.) Wirt reiterated that she did not want surgical intervention at that time. (Id.) The next day,
April 28, 2008, Wirt reported that she had “mild” neck and back pain, and the attending physician
noted that Wirt could be discharged from Wyckoff Heights once she was cleared by neurosurgery.
(Id. ¶ 45.)
On April 28, 2008, Wirt underwent an MRI (“April 28, 2008 MRI”) that indicated a history
of spinal narrowing and various abnormalities affecting certain of Wirt’s vertebrae, but no acute
injury. (Id. ¶ 46.)6
On April 29, 2008, a Wyckoff Heights physician noted that Wirt was stable and had no
new neurological deficits. (USA’s 56.1 Response (Wirt) ¶ 49.) The physician further noted that
Wirt’s pain was well controlled with Motrin and that discharge planning was in progress for when
Wirt was cleared by neurosurgery. (Id.)
6
The April 28, 2008 MRI is discussed in greater detail below, in the context of expert
reports submitted by the United States.
9
Before she was discharged, however, Wirt changed her mind about surgery and elected
to undergo surgical intervention. (Id. ¶ 50.) Wirt underwent the first stage of surgery on May
6, 2008, which involved surgery on her C6 and C7 vertebrae. (Id. ¶ 51.) Wirt underwent the
second stage of surgery on May 9, 2008, which involved surgery on her C3 to C7 vertebrae.
(Id.) As a result of the spinal surgery she received in the weeks after the accident, Wirt has
permanent scarring in two places on her neck. (Wirt 56.1 ¶ 22.)
On May 14, 2008, after having spent three weeks in Wyckoff Heights inpatient care,
Wirt was discharged to the Brooklyn United Methodist Church Home (“BUMCH”) for
rehabilitation. (USA’s 56.1 Response (Wirt) ¶ 52.) Upon admission to BUMCH, Wirt reported
that she had a history of urinary incontinence. (Wirt 56.1 ¶ 28 (USA’s Response).) Wirt also
told the consulting psychiatrists at BUMCH that she had a history of major depression and
anxiety, and had been on and off Zoloft. (Id.) Wirt resided at BUMCH until August 15, 2008,
i.e., a total of three months. (Id.) When she left the facility, Wirt did not require any home
services and she was continent. (Id.)
About a week after she was discharged from BUMCH, Wirt underwent an evaluation by
Dr. Irving Friedman, a neurologist certified by the American Board of Neurology and Psychiatry.
(Wirt 56.1 ¶ 24.) In a sworn affirmation dated August 21, 2008, Dr. Friedman recorded his
observations and conclusions from the evaluation. (Dkt. 103-3 at ECF7 3-8.) Dr. Friedman
noted that Wirt complained of severe neck pain radiating to both lower extremities, numbness
of all extremities and persistent lower back pain. (Id. at ECF 3.) Dr. Friedman reported
observing, among other things, spasms and impaired range of motion in Wirt’s cervical spine,
7
“ECF” refers to the pagination generated by the court’s Electronic Court Filing system
and not the document’s internal page numbering.
10
diminished gripping power and tenderness in both hands, abnormalities in Wirt’s gait, spasms
and pain in her lower back, reduced strength and limited range of motion in her lower extremities,
numbness in her upper extremities, and difficulty ambulating. (Id. at ECF 4-5.) Dr. Friedman
also summarized the results of his review of Wirt’s medical records from her inpatient treatment
at Wyckoff Heights from April 23, 2008 through May 14, 2008. (Id. at ECF 5-7.) In conclusion,
Dr. Friedman opined that, “[a]s a result of injuries sustained as a passenger on a city bus on April
23, 2008,” Wirt suffered several severe “deficits” affecting her neck, back, and extremities. (Id.
at ECF 7.) Dr. Friedman further opined that “Ms. Wirt is catastrophically disabled both
emotionally and physically,” and that the deficits described in his affirmation “are directly and
causally related to the injuries sustained on April 23, 2008.” (Id. at ECF 8.) With respect to
Wirt’s prior history of “chronic cervical and lumbar disease,” Dr. Friedman opined that her
condition “was dramatically aggravated and exacerbated by the events of April 23, 2008,” and
that, “[h]ad Ms. Wirt not been injured on April 23, 2008, she may never have required any
operative procedures.” (Wirt 56.1 ¶ 26.)
After her evaluation by Dr. Friedman, from August 2008 through at least September
2011, Wirt continued to receive treatment for her neck, back, extremities, diabetes, hypertension,
and anxiety, among other conditions, from several different medical providers. (Dkt. 103-3 at
ECF 10-12.)8 Thereafter, on July 16, 2012, Wirt returned to Dr. Friedman for a follow-up
evaluation. (Wirt 56.1 ¶ 29.) In a sworn affirmation dated July 16, 2012, Dr. Friedman described
his examination of Wirt and summarized his review of certain of Wirt’s medical records from
August 2008 through September 2011. (Dkt. 103-3 at ECF 9-13.) Dr. Friedman reported
8
Neither Wirt nor the United States argues that Wirt’s treatment records during this
period are relevant to the present dispute, so the Court does not discuss them in detail.
11
significantly impaired range of motion in Wirt’s cervical spine, numbness in Wirt’s extremities,
and diminished strength in both hands, among other deficits. (Id.) In conclusion, Dr. Friedman
opined that, “[a]s a result of injuries sustained while a passenger on a city bus on April 23, 2008,”
Wirt sustained numerous “deficits,” including certain deficits related to her neck, back,
shoulders, and extremities. (Id. at ECF 12.) In a section of his affirmation titled, “Causality,”
Dr. Friedman opined that “Ms. Wirt became acutely symptomatic on April 23, 2008 . . . and has
become progressively so since her April 23, 2008 injuries.” (Id. at ECF 13.) Dr. Friedman
further opined that Wirt’s “prognosis for further functional improvement is extremely poor,” and
that her “post-traumatic neuro-spinal deficits are permanent in nature and causally related.” (Id.)
Thereafter, Wirt obtained three additional follow-up evaluations from Dr. Friedman. For
each of these evaluations, Dr. Friedman prepared a sworn affirmation, and Wirt has attached all
five of Dr. Friedman’s affirmations as exhibits with her summary judgment papers. (Wirt 56.1
¶¶ 29-35.) Much like his first two affirmations, Dr. Friedman’s final three affirmations, dated
July 11, 2013, October 24, 2014, and September 1, 2015, summarize his physical examinations
of Wirt and his review of Wirt’s medical records generated since his last affirmation.
(Dkt. 103-3 at ECF 15-30.) In each of the affirmations, Dr. Friedman concludes that Wirt suffers
from numerous severe deficits in her neck, back, shoulders, and extremities “as a result of
injuries sustained while a passenger on a city bus on April 23, 2008.” (Id. at ECF 17 (July 11,
2013 Affirmation), ECF 23 (October 24, 2014 Affirmation), ECF 29 (September 1, 2015
Affirmation).)
There is, however, one glaring omission from all of Dr. Friedman’s affirmations.
Although each of the affirmations concludes that Wirt’s severe physical and mental deficits were
the “result of injuries sustained while a passenger on a city bus on April 23, 2008,” none of the
12
affirmations contains an explanation of how Dr. Friedman reached that conclusion.
(See Dkt. 103-3.) Indeed, underscoring this omission, although the affirmations show that Dr.
Friedman reviewed Wirt’s post-accident medical records from Wyckoff Heights (see Dkt. 1033 (August 21, 2008 Affirmation) at ECF 5-8), and her subsequent medical records from August
2008 through roughly September 2015 (see Dkt. 103-3 at ECF 10-12, 23, 27-28), none of Dr.
Friedman’s affirmations contains any summary or analysis of Wirt’s extensive medical history
prior to the accident (see Dkt. 103-3). Wirt does not direct the Court to anything in the record
indicating the basis for Dr. Friedman’s conclusion that Wirt’s physical and mental deficits were
caused by the April 23, 2008 accident, as opposed to her pre-existing medical conditions. Nor
does Wirt direct the Court to any evidence that Dr. Friedman reviewed any of Wirt’s pre-accident
medical records prior to reaching the conclusions expressed in his affirmations.
For its part, the United States has submitted a sworn affirmation, dated, June 15, 2014,
setting forth the medical opinion of Dr. Devon A. Klein, M.D., a licensed physician who is board
certified in Diagnostic Radiology. (Mahoney Decl., Ex. F (filed under seal).) Dr. Klein reviewed
Wirt’s medical imaging records from May 2005 (x-ray and CT images), June 2005 (MRI
images), July 2005 (MRI images), March 2007 (MRI images), April 2008 (x-ray and MRI
images), and May 2008 (CT images). (Id.) Dr. Klein found that the records showed the
“hallmarks of chronic degenerative disease” in Wirt’s spine, and that the degenerative disease
“precedes the [accident].” (Id. at 4.) Dr. Klein found that Wirt’s post-accident MRI images
were very similar to her pre-accident MRI images. (USA’s 56.1 Response (Wirt) ¶ 56.) Dr.
Klein found that Wirt’s medical imaging after the accident was consistent with the chronic
degenerative disease from which Wirt suffered years before the accident. (Id. at 3-4.) Dr. Klein
13
also found that none of Wirt’s medical images suggested any acute injury as a result of the April
2008 accident. (Id. at 3-9; see also USA’s 56.1 Response (Wirt) ¶¶ 44-46.)9
C. Plaintiff Rodriguez’s Medical History and Alleged Injuries
At the time of the April 23, 2008 accident, Plaintiff Rodriguez was nineteen years old.
(USA’s 56.1 Response (Rodr.) ¶ 14.) Neither party argues that Rodriguez’s pre-accident medical
history is relevant to this case.
On the day of the accident, Rodriguez was examined in the emergency room of Wyckoff
Heights.
(Rodr. 56.1 ¶ 10.)
Rodriguez expressed tenderness in her neck with lateral
movement, but had full range of motion and neurological function. (USA’s 56.1 Response
(Rodr.) ¶ 16.) Rodriguez’s ultimate diagnosis at Wyckoff Heights was a cervical sprain. (Id.)
Rodriguez was instructed to take an over-the-counter anti-inflammatory drug, return to
Wyckoff Heights if her condition worsened, and follow up with her primary medical doctor as
needed. (Id.) Rodriguez was discharged about an hour after she arrived at the emergency
room. (Id.)
One week after the accident, on April 30, 2016, Rodriguez was examined by Panagiotis
Zenetos, M.D., a doctor affiliated with Wyckoff Heights. (Rodr. 56.1 ¶ 12.)10 Dr. Zenetos noted
9
The United States also submitted a sworn affirmation, dated September 22, 2014, by Dr.
Firas M. Chamas, M.D., a licensed physician who is board certified in Orthopedic SurgerySpine. (Mahoney Decl., Ex. G.) Dr. Chamas affirms that he reviewed Wirt’s medical records
and diagnostic images from June 2005 through May 2008. (Id.) But Dr. Chamas’s affirmation
does not reach any definitive conclusion as to whether Ms. Wirt’s medical condition was
materially affected by the April 2008 motor vehicle accident, deferring instead to the conclusions
of Ms. Wirt’s treating physicians and other doctors who reviewed Ms. Wirt’s medical files. (Id.)
Dr. Chamas’s affirmation thus adds nothing of significance to the Court’s analysis of Wirt’s
medical history.
10
The United States disputes whether Rodriguez was examined by Dr. Zenetos one week
after the accident, (USA’s 56.1 Response (Rodr.) ¶ 12), noting, among other things, that Rodriguez
stated twice in her deposition that she did not see a doctor or seek any treatment after leaving the
14
Rodriguez’s reports of pain in her neck, back, right thigh, hip, and shoulders. (Id.) He also noted
that Rodriguez expressed pain and tenderness associated with certain movements of his legs and
torso. (Id.) Dr. Zenetos prescribed two medications for pain relief. (Id.)
Nearly two months after the accident, on June 23, 2008, Rodriguez was examined by Dr.
Woo Tak of Staten Island Rehabilitation Medicine, P.C. (USA’s Response 56.1 (Rodr.) ¶ 18.)
Rodriguez reported that she did not have any radiating pain, weakness or numbness in her
extremities. (Id.) Dr. Tak diagnosed Rodriguez with neck and back pain with no neurologic
deficit, and prescribed physical therapy, a home exercise program, and an anti-inflammatory drug.
(Id.) Over the next two months, Rodriguez underwent physical therapy and occasional follow-up
appointments with Dr. Tak, during which she expressed neck and back pain. (Rodr. 56.1 ¶ 13.)
On July 17, 2008, Rodriguez sought a neurological and medical assessment from Dr.
Friedman, the same physician who evaluated Plaintiff Wirt and who has submitted sworn
affirmations on Wirt’s behalf. (Rodr. 56.1 ¶ 16.) Dr. Friedman recorded Rodriguez’s complaints
of pain in her back and shoulders, observed significantly reduced range of motion in Rodriguez’s
neck, back, and shoulders, and spasms in her cervical region. (Id. ¶¶ 16-17.) Dr. Friedman
concluded that, as a result of injuries “sustained as a passenger on a city bus on April 23, 2008,”
Rodriguez was suffering from numerous acute conditions causing pain, spasms, and reduced range
of motion in her neck, back, and shoulders. (Id. ¶ 18.) Dr. Friedman concluded that “Ms.
Rodriguez remains with a total and painful and multi-level disability at this time.” (Id.)
emergency room on April 23, 2008 until nearly two months later. (USA’s Response 56.1 (Rodr.)
¶ 18.) Finding it plausible that Rodriguez simply failed to recall her visit to Dr. Zenetos when she
sat for a deposition nearly four years later, the Court declines the United States’ request to
disregard what appear to be Dr. Zenetos’s notes of his examination of Rodriguez on April 30,
2008. (See Dkt. 99-2 at ECF 5.)
15
Four days later, on July 21, 2008, Dr. Sanford Wert, M.D., an orthopedic surgeon,
conducted an independent medical examination of Rodriguez on behalf of the NYCTA. (USA’s
56.1 Response (Rodr.) ¶ 19.) Dr. Wert observed that Rodriguez had normal gait, was independent
in ambulation, was able to mount and dismount the examining table without difficulty, and was
able to walk on her heels and her toes. (Id.) On examination of Rodriguez’s neck and back, Dr.
Wert found no evidence of palpable tenderness or muscle spasm, although there was some deficit
in Rodriguez’s range of motion. (Id. ¶ 20.) On examination of Rodriguez’s shoulders, Dr. Wert
found no tenderness to deep palpitation and normal range of motion. (Id. ¶ 21.) On examination
of Rodriguez’s lumbosacral spine, Dr. Wert found no evidence of palpable tenderness or muscle
spasm and normal range of motion. (Id. ¶ 22.) Based on his examination, Dr. Wert diagnosed
Rodriguez with a resolved sprain or strain of the cervical spine, a resolved sprain or strain of the
lumbar spine, and a resolved sprain or strain of the bilateral shoulders. (Id. ¶ 24.) Dr. Wert also
gave a favorable prognosis: “Prognosis is good. Based on clinical evaluation, it is my impression
that there is no accident related orthopedic disability.” (Id.)
After completing her physical therapy sometime in the fall of 2008, Rodriguez did not seek
medical treatment for her neck, back, shoulders, or extremities for nearly five years. (Id. ¶ 27.)11
On December 11, 2012, in connection with this lawsuit, Jonathan S. Garay, D.O., conducted an
independent physical medicine and rehabilitation evaluation of Rodriguez. (Id. ¶ 30.) Rodriguez
stated that she was independent in all activities of daily living and caring for her three-year-old
child, and that she was working as a cashier at a convenience store. (Id.) Dr. Garay’s examination
11
Rodriguez argues that she “did resume her care and treatment” and, as evidence of that,
points to medical records documenting treatment that Rodriguez received in the years after 2008.
(USA’s Response 56.1 (Rodr.) ¶ 27.) But none of the cited records contradict the fact that
Rodriguez did not seek medical treatment for her neck, back, shoulders, or extremities for nearly
five years. (Id.)
16
of Rodriguez’s neck, back, lower extremities, upper extremities, spine, and shoulders revealed
normal and pain-free range of motion, and no significant abnormalities.
(Id. ¶¶ 30-35.)
Ultimately, Dr. Garay diagnosed Rodriguez with resolved cervical strain/sprain and resolved
thoracolumbar strain/sprain. (Id. ¶ 36.) Dr. Garay opined that Rodriguez had long since recovered
from any cervical and thoracolumbar strains/sprains without any residua, and that there was no
reason to restrict her activities. (Id.) Dr. Garay concluded that Rodriguez had no impairment
related to the April 23, 2008 motor vehicle accident. (Id.)
On July 11, 2013, more than five years after the accident, Rodriguez underwent a second
evaluation by Dr. Friedman. (Rodr. 56.1 ¶ 20.) Dr. Friedman noted Rodriguez’s complaints of
“daily spasms in the neck” and “migraines.” (Id. ¶ 20.) Dr. Friedman also observed reduced range
of motion in Rodriguez’s neck and back. (Id. ¶ 21.) Dr. Friedman concluded that as a result of
injuries “sustained as a passenger on a city bus on April 23, 2008,” Rodriguez suffered from several
chronic, post-traumatic “deficits” affecting her neck and spine, as well as recurring migraine
headaches, anxiety, and depression. (Id. ¶ 22.)12 Dr. Friedman did not explain how he determined
that the “deficits” he observed were caused by injuries that Rodriguez had sustained in a motor
vehicle accident on April 23, 2008, and there is no evidence that Friedman considered other
possible causes of the observed deficits that may have occurred in the five years since he last
examined Rodriguez. (Id. ¶ 22; Dkt. 102-1 at ECF 10-12.)13
12
Notably, many of the “deficits” that Dr. Friedman reported in his July 11, 2013 report
were not listed as deficits in his July 11, 2008, and he gives no explanation for the discrepancy.
13
Rodriguez underwent a third evaluation by Dr. Friedman on September 1, 2015, more
than seven years after the accident, and after discovery had closed in this case. (Rodr. 56.1 ¶¶ 2832.) Dr. Freidman’s report of that examination was materially the same as his July 11, 2013
evaluation, including its omission of any explanation of how he determined that the “deficits” he
observed were caused by injuries that Rodriguez sustained in a motor vehicle accident on April
23, 2008. (Dkt. 102-1 at ECF 3-7.)
17
From 2011 to 2015, Rodriguez also received treatment from her primary care physician,
Dr. Tauqeer Ahmad. (Rodr. 56.1 ¶¶ 24-25.) Rodriguez asserts that her visits to Dr. Ahmad, as
documented in her medical chart, (Dkt. 103-1), support her allegations of a significant and lasting
physical impairment resulting from the April 2008 accident. (Rodr. 56.1 ¶¶ 24-25.) Although the
medical records in question document several visits by Rodriguez to Dr. Ahmad, the records do
not indicate that Rodriguez received any treatment from Dr. Ahmad for her neck, back, shoulders,
or extremities until June 2, 2015, more than seven years after the accident and nearly five years
into this litigation. (Id. ¶ 25.) Rodriguez points to no evidence in Dr. Ahmad’s records of any
connection between the April 2008 accident and the neck and back symptoms for which Rodriguez
received treatment starting in June 2, 2015, let alone any explanation of the basis for drawing such
a causal connection. (Id.)
II. Legal Standard
Summary judgment may be granted only where there is no genuine issue as to any material
fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c).
In ruling on a motion for summary judgment, a court must resolve all ambiguities and draw all
factual inferences in favor of the nonmoving party. McClellan v. Smith, 439 F.3d 137, 144 (2d
Cir. 2006). “To grant the motion, the court must determine that there is no genuine issue of
material fact to be tried.” Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)). A
genuine factual issue exists where the “evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
nonmoving party cannot defeat summary judgment by “simply show[ing] that there is some
metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986), or by a factual argument based on “conjecture or surmise,” Bryant v.
18
Maffucci, 923 F.2d 979, 982 (2d Cir.1991). “[What] is required [from a nonmoving party] is that
sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to
resolve the parties’ differing versions of the truth at trial.” First Nat'l Bank of Ariz. v. Cities Serv.
Co., 391 U.S. 253, 288-89 (1968). “Credibility assessments, choices between conflicting versions
of the events, and the weighing of evidence are matters for the jury, not for the court on a motion
for summary judgment.” Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997).
III. Analysis
Defendant the United States moves for summary judgment on all claims that Plaintiffs
assert against it: (i) Wirt’s claim of negligence under the FTCA; (ii) Wirt’s claim of negligent
training under the FTCA; (iii) Rodriguez’s claim of negligence under the FTCA; and
(iv) Rodriguez’s claim of negligent training under the FTCA.
Defendant the NYCTA likewise moves for summary judgment on the tort claims that
Plaintiffs assert against it: (i) Plaintiff Wirt’s claim of negligence; (ii) Plaintiff Wirt’s claim of
negligent training; (iii) Plaintiff Rodriguez’s claim of negligence; and (iv) Plaintiff Rodriguez’s
claim of negligent training.14 As previously noted, whether Plaintiffs can sufficiently demonstrate
“serious injury” is a potentially dispositive issue with respect to their claims against both parties.
See Pommells v. Perez, 4 N.Y. 3d 566, 571 (N.Y. 2005).
14
The Court notes that neither the submissions by Plaintiffs nor those by the NYCTA
expressly identify the claims on which the NYCTA is seeking summary judgment. Nonetheless,
the parties’ legal and factual submissions make reasonably clear that the NYCTA is seeking
summary judgment dismissing the negligence and negligent-supervision claims that Plaintiffs
asserted in their Verified Complaint (Dkt. 68, Ex. A, ¶¶ 1-26, 39-65). The Court has evaluated the
NYCTA’s motion based on this understanding.
19
A. The “Serious Injury” Requirement Applies in This Case
Article 51 of New York State’s No-Fault Insurance Law (“N.Y. Ins. Law”) provides that
in a personal injury or negligence action between “covered persons,” “there shall be no right of
recovery for non-economic loss, [e.g., pain and suffering,] except in the case of a serious injury,
or for basic economic loss.” N.Y. Ins. Law §§ 5104(a), 5102(c).
The statute defines a “covered person” as, inter alia, “any owner, operator, or occupant
of . . . a motor vehicle which has in effect the financial security required by [other sections of the
law], . . . . or any other person entitled to first party benefits.” N.Y. Ins. Law § 5102(j). “First
party benefits,” in turn, are defined as “payments to reimburse a person for basic economic loss on
account of personal injury arising out of the use or operation of a motor vehicle.” Id. § 5102(b).
The Second Circuit has squarely held that the United States is entitled to first party benefits
under the No-Fault statute. See United States v. Gov’t Emps. Ins. Co., 605 F.2d 669, 671 (1979).
As a person entitled to first party benefits, the United States is a “covered person” under the statute.
See N.Y. Ins. Law. § 5102(j); Patrello v. United States, 757 F. Supp. 216, 220 (S.D.N.Y. 1991)
(“It is clear that the United States is a covered person under the no-fault law,” either as an “owner”
of an insured vehicle, or as a “person entitled to first party benefits.” (citing United States v. Gov’t
Emps. Ins. Co., 605 F. 2d at 671)).15 Furthermore, Plaintiffs do not dispute that the NYCTA is
15
Plaintiffs cite one case, Cooper v. United States, 635 F. Supp. 1169 (S.D.N.Y. 1986), in
support of their argument that the United States is not a “covered person” within the meaning of
the No-Fault statue. But Cooper is inapposite. In Cooper, the court considered whether a
pedestrian who was struck by a United States postal vehicle was a “covered person” under New
York’s No-Fault statute, where the pedestrian was unable to recover first party benefits because
the only motorized vehicle involved in the accident was owned and operated by the United States,
which is immune from paying first party benefits by virtue of its sovereign immunity. 635 F. Supp.
at 1172-73. The court held that the pedestrian need not show “serious injury” to sustain its tort
claim against the United States because that limitation—i.e., the requirement of showing a “serious
injury” to recover other damages—was designed to apply only where the injured person was
entitled to receive “prompt and full compensation for economic losses up to $50,000,” which the
20
likewise a “covered person” under the statute.
Accordingly, to prevail on their claims of
negligence against either the United States or the NYCTA, each Plaintiff must show that she
suffered from a “serious injury,” as defined in the statute, as a result of the defendant’s negligence.
See, e.g., Mesimeris v. United States, 2006 WL 148911, at *7 (E.D.N.Y. Jan. 17, 2006) (dismissing
negligence claim where plaintiff failed to demonstrate “serious injury” flowing from alleged
negligence, as required by No-Fault statute), aff’d, 215 F. App’x 42 (2d Cir. 2007).
The No-Fault statute defines “serious injury” as follows:
a personal injury which results in death; dismemberment; significant
disfigurement; a fracture; loss of a fetus; permanent loss of use of a body
organ, member, function or system; permanent consequential limitation of
use of a body organ or member; significant limitation of use of a body
function or system; or a medically determined injury or impairment of a
non-permanent nature which prevents the injured person from performing
substantially all of the material acts which constitute such person's usual
and customary daily activities for not less than ninety days during the one
hundred eighty days immediately following the occurrence of the injury or
impairment
N.Y. Ins. Law § 5102(d).
B. Neither Plaintiff Has Shown That the Accident Caused Serious Injury
1. Plaintiff Wirt
Wirt argues that she satisfies the “serious injury” requirement because (i) she was
prevented from performing substantially all of her normal daily activities for more than ninety
days while she was “confined” in Wyckoff Heights and the BUMCH, and (ii) she sustained a
pedestrian in that case was not. Id. at 1172 (quoting Montgomery v. Daniels, 340 N.E.2d 444, 452
(N.Y. 1975)). Here, by contrast, Plaintiffs do not allege or create any issue of fact as to whether
they were entitled to receive first party benefits from the NYCTA as a result of the accident.
See N.Y. Ins. Law § 5103(a)(1). As such, even assuming the Cooper court’s reasoning is correct
as a matter of law, it does not extend to the facts of this case.
21
“significant disfigurement” in the form of post-surgical scarring on her neck. (Pls.’ Br. 2324.) In response, the United States argues that Wirt has failed to show the requisite causal
connection between the April 2008 accident and her supposed “serious injuries.” The United
States argues principally that, even assuming Wirt’s post-surgical scarring or post-surgery
“confinement” at BUMCH qualifies as a “serious injury” under the statute, neither of those
alleged injuries was “proximately caused” by the April 2008 accident. (USA’s Opp’n Br. (Dkt.
80) 16-23.)
Under New York law, where a defendant moves for summary judgment on the ground that
a collision did not cause “serious injury” within the meaning of the No-Fault statute, the defendant
has the initial burden to submit “persuasive evidence” that the plaintiff’s alleged pain and injuries
were not caused by the collision. Pommells v. Perez, 4 N.Y.3d 566, 580 (N.Y. 2005). In particular,
where a defendant argues that a plaintiff’s injuries were caused by pre-existing conditions, “a
defendant must submit adequate medical evidence supporting that contention.”
Cross v.
Lambombard, 9 N.Y.S.3d 416, 415 (App. Div. 2015). If the defendant meets its burden, the burden
shifts to the plaintiff to “come forward with evidence addressing the defendant’s claimed lack of
causation.” See Arenes v. Mercedes Benz Credit Corp., 2006 WL 1517756, at *8 (E.D.N.Y. June
1, 2006) (citing Pommells, 4 N.Y.3d at 580). A plaintiff cannot defeat summary judgment if her
submission consists of expert opinion that fails to adequately address plaintiff’s pre-existing
conditions. See Pommells, 4 N.Y.3d at 574-75 (finding dismissal of plaintiff’s complaint proper
when plaintiff’s expert opined that his symptoms were “causally related to the history as stated,”
which included both the accident and plaintiff’s kidney surgery, but “left wholly unanswered the
question whether the claimed symptoms diagnosed” were caused by the accident). If the plaintiff
22
fails to provide such evidence, the defendant is entitled to summary judgment. See Arenes, 2006
WL 1517756, at *8; Pommells, 4 N.Y.3d at 580.16
With respect to Plaintiff Wirt, the Court finds that the United States has submitted
“persuasive evidence” that Wirt did not suffer a “serious injury” as a result of the April 2008
accident. As explained in detail above, Wirt had a long history of medical problems affecting her
neck, back, shoulders, and extremities that long pre-dated the April 2008 accident. See supra.
Between 2005 and April 2008, Wirt was hospitalized at least seven times for testing and treatment
associated with chronic pain and reduced functioning of her neck and back, as well as uncontrolled
diabetes. Id. Wirt was also referred for surgical consultations on multiple occasions. Id.
In addition, the United States’ medical expert, Dr. Klein, a licensed physician who is board
certified in Diagnostic Radiology, reviewed Wirt’s medical imaging records from before and
after the accident, and concluded that Wirt presented with the “hallmarks of chronic degenerative
disease” of the spine that “precedes the [accident].” (Mahoney Decl., Ex. F, at 4.) Dr. Klein
further found that Wirt’s post-accident MRI images were very similar to her pre-accident MRI
images, that none of Wirt’s medical images suggested any acute injury as a result of the April
2008 accident, and that Wirt’s medical imaging after the accident was consistent with the chronic
degenerative disease from which Wirt suffered years before the accident. (Id. at 3-4.) The Court
finds that this evidence is indeed “persuasive evidence” that the plaintiff’s alleged pain and
injuries were related to a pre-existing condition. See Evans v. United States, 978 F. Supp. 2d 148,
167 (E.D.N.Y. 2013) (finding that plaintiff’s pre-existing injuries in the same body part several
16
Ultimately, if both parties have met their respective burdens, the Court may grant
summary judgment for the defendant only if the record allows the Court to find, as a matter of law,
that the pre-existing condition was the sole cause of the plaintiff’s injury. See Perl v. Meher, 18
N.Y.3d 208, 219, 960 N.E.2d 424 (N.Y. 2011).
23
years before the accident persuasive enough to shift the burden to plaintiff); Arenes, 2006 WL
1517756, at *8 (finding defendant’s expert’s report sufficient to shift the burden where it stated
that plaintiff’s injuries were not consistent with an acute, traumatic event but, rather consistent
with pre-existing and degenerative conditions).
In response to the United States’ submissions, Wirt has submitted five sworn affirmations
from Dr. Friedman, a neurologist certified by the American Board of Neurology and Psychiatry.
(Id. ¶ 24.) Wirt argues that Dr. Friedman’s affirmations are not only sufficient to preclude
summary judgment for the United States, but also provide a basis on which to grant summary
judgment for Wirt on the “serious injury” issue. (Pls.’ Br. 22-24.) The Court disagrees.
Although Dr. Friedman has opined that Wirt suffered numerous deficits “[a]s a result of
injuries sustained as a passenger on a city bus on April 23, 2008,” Dr. Friedman has utterly failed
to explain the basis for that conclusion, notwithstanding the multiple reports he generated
containing this conclusion that have been submitted in this action. Indeed, underscoring this
omission, although the affirmations show that Dr. Friedman reviewed Wirt’s post-accident
medical records from Wyckoff Heights (see Dkt. 103-3 (August 21, 2008 Affirmation) at ECF
5-8), and her subsequent medical records from August 2008 through roughly September 2015
(see Dkt. 103-3 at ECF 10-12, 23, 27-28), none of Dr. Friedman’s affirmations contains any
summary or analysis of Wirt’s extensive medical history prior to the accident on April 23, 2008
(see Dkt. 103-3). It is as if it never existed. Wirt does not direct the Court to anything in the
record indicating the basis for Dr. Friedman’s conclusion that Wirt’s physical and mental deficits
were caused by the April 23, 2008 accident, as opposed to her pre-existing medical conditions,
nor does Wirt direct the Court to any evidence that Dr. Friedman reviewed any of Wirt’s preaccident medical records prior to reaching the conclusions expressed in his affirmations.
24
The law is clear that, without such an explanation, Dr. Friedman’s affirmations fail to
rebut the United States’ persuasive evidence that Wirt’s serious medical conditions were caused
by her pre-existing conditions. See Arenes, 2006 WL 1517756, at *8 (applying Pommells v. Perez,
4 N.Y.3d 566 (2005), and finding that plaintiffs failed to submit evidence sufficient to demonstrate
a triable issue of fact when a medical report by plaintiffs’ doctor failed to explicitly address
defendants’ experts’ finding that injuries were caused by a pre-existing, degenerative condition);
Pommells, 4 N.Y.3d at 580 (finding dismissal of plaintiff’s complaint proper when plaintiff’s
expert opined that his symptoms were “causally related to the history as stated,” which included
both the accident and plaintiff’s kidney surgery, but “left wholly unanswered the question whether
the claimed symptoms diagnosed” were caused by the accident).17
Furthermore, to the extent Wirt argues that the spinal surgeries she underwent in May 2008
were necessitated by the accident, that claim is not supported by Dr. Friedman’s reports and is
contradicted by Wirt’s own medical records, which document more than on pre-accident referral
for surgery—that Wirt failed to follow-up on—including one just four months before the accident.
(USA’s 56.1 Response (Wirt) ¶ 37.)
Accordingly, the Court holds that Wirt has failed to rebut the United States’ evidence that
her medical condition, surgeries, and post-surgery treatment in April 2008 and thereafter were the
17
See also Marcellus v. Forvarp, 956 N.Y.S.2d 13 (App. Div. 2012) (finding that plaintiff
failed to raise a triable issue of fact, despite having submitted medical evidence regarding her
recent physical limitations and MRI findings, because plaintiff’s experts did not address a previous
medical report relating to a prior accident noting plaintiff’s worsening pain); Bravo v. Martinez,
963 N.Y.S.2d 82 (App. Div. 2013) (affirming summary judgment for defendants where plaintiff
had pre-existing injuries resulting from multiple prior car accidents and plaintiff’s expert’s report
failed to adequately differentiate between injury after the previous accident and injury after the
subject accident).
25
result of her per-existing medical conditions. The Court therefore grants Defendants’ motions for
summary judgment as to Wirt on the issue of “serious injury.”
2. Plaintiff Rodriguez
As discussed, neither party argues that Plaintiff Rodriguez’s medical history prior to the
date of the accident, April 23, 2008, is relevant to this case. And the parties agree, at least for
summary judgment purposes, that Rodriguez received medical evaluations and treatment for
alleged injuries to her neck and back in the months and years after the April 2008 accident. The
parties dispute, however, whether any of these injuries constitutes a “serious injury” within the
meaning of the No-Fault statute, and, if so, whether that injury was proximately caused by the
April 2008 accident.
In her legal arguments, Rodriguez does not specify the precise type of “serious injury”
she suffered as a result of the April 2008 accident. (See Dkts. 106 & 109.) From her Rule
56.1 Statement, the Court gathers that Rodriguez is asserting a “serious injury” in the form of
prolonged pain, spasms, and decreased range of motion in her neck, back, and extremities, as
well as chronic anxiety and migraine headaches. (Rodr. 56.1 ¶¶ 28-32.)
Rodriguez’s assertion of a “serious injury” is flawed in three respects. First, temporary
pain and soft-tissue injury that does not result in a permanent restriction of mobility is not a
“serious injury” under the statute. See Scheer v. Koubek, 70 N.Y.2d 678, 679 (N.Y. 1987);
Yanez v. City of N.Y., 29 F. Supp. 2d 100, 115 (E.D.N.Y. 1998). Thus, evidence that Rodriguez
experienced some tenderness and decreased range of motion in the three months after the
accident is not sufficient to show a “serious injury” under the statute. See ibid.
Second, Rodriguez has failed to adequately explain the cessation in her treatment for the
injuries allegedly suffered in the April 2008 accident. The record shows that Rodriguez received
26
anti-inflammatory drugs, pain killers, and a prescription of physical therapy in the three months after
the accident. It appears, however, that Rodriguez then received no examinations or treatment for her
alleged injuries in the ensuing five years. “While a cessation of treatment is not dispositive—the
law surely does not require a record of needless treatment in order to survive summary judgment—
a plaintiff who terminates therapeutic measures following the accident, while claiming ‘serious
injury,’ must offer some reasonable explanation for having done so.” Pommels v. Perez, 830 N.E.2d
278, 283 (2005). Here, Rodriguez asserts that she ceased her treatment not because her injuries had
been resolved, but because she became pregnant and “preoccupied with her daughter.” (USA’s 56.1
Response (Rodr.) ¶ 27.) But this explanation does not hold up under scrutiny: the record shows
that, between her first visit to Dr. Friedman in July 2008 and her first follow-up appointment in July
2013, Rodriguez visited her primary care physician numerous times for ailments unrelated to her
alleged injuries from the April 2008 accident. (USA’s Response 56.1 (Rodr.) ¶ 27.) Furthermore,
in an independent physical examination on December 11, 2012, Rodriguez reported that she was
independent in all activities of daily living and caring for her three-year-old child. (Id. ¶ 30.) The
December 2012 examination also indicated that Rodriguez had normal and pain-free range of motion
in her neck, back, lower extremities, upper extremities, spine, and shoulders, with no significant
abnormalities. (Id. ¶¶ 30-35.)
Third, the sworn affirmations submitted on Rodriguez’s behalf by Dr. Friedman—which
are dated July 11, 2013, and September 1, 2015—fail to establish a causal connection between the
April 2008 accident and any physical or mental impairment that Rodriguez was suffering in July
2013 or September 2015. Although Dr. Friedman opines that Rodriguez suffers from several
“deficits,” including “daily spasms in the neck” and “migraines,” he provides no explanation for
his conclusion that these deficits were a result of injuries Rodriguez “sustained as a passenger on
27
a city bus on April 23, 2008.” Indeed, in these affirmations there is no evidence that Friedman
considered other possible causes of the observed deficits that may have occurred in the five years
since he first examined Rodriguez. (Id. ¶ 22; Dkt. 102-1 at ECF 10-12.)
Moreover, as the United States observed in its reply brief (USA Reply Br. (Rodr.) 6),
Rodriguez did not offer any argument in her legal memorandum that she suffered a “serious
injury.” Instead, Rodriguez argued solely that the “serious injury” requirement does not apply
because the United States is not a “covered person” under the No-Fault statute. (Dkts. 106 & 109.)
Indeed, Rodriguez’s only response to the United States’ arguments as to “serious injury” comes in
the “Conclusion” section of Plaintiffs’ brief, where they assert in conclusory fashion that
“Rodriguez . . . presents multiple material questions of fact, precluding summary judgment even
under the ‘serious injury’ requirement.” (Dkt. 106 at 25.) Thus, Rodriguez appears to have
conceded this argument in any event.
For these reasons, the Court grants Defendants’ motion for summary judgment as to
Rodriguez on the issue of “serious injury.”
C. The Parties’ Liability Arguments
Aside from the “serious injury” requirement, the parties have submitted briefing on the merits
of Plaintiffs’ negligence claims. Plaintiffs argue that they are entitled to partial summary judgment as
to liability against the United States because the GSA driver negligently slammed into the NYCTA
bus. (Pls.’ Br. (Dkt. 106) 13-15.) The NYCTA and Lopez argue that they are entitled to summary
judgment as to liability against the United States on the same ground. (Dkt. 118.) The United States
opposes both motions, arguing that issues of fact exist as to whether the GSA driver was negligent,
and, if so, whether his negligence was the proximate cause of any injury to Plaintiffs. (Dkts. 80 & 84.)
As noted above, supra n.2, the four eyewitnesses whose testimony is in the record—i.e.,
Wirt, Rodriguez, the bus driver (Lopez), and the GSA driver (Horace Morancie)—gave materially
28
different accounts of the collision, such that there appear to be genuine issues of fact concerning
the speed at which the bus was traveling through Grand Army Plaza, the swiftness with which the
bus stopped, the force with which the GSA vehicle struck the bus, and the impact that all of these
factors had on the passengers aboard the bus, including Plaintiffs. (See, e.g., USA’s 56.1 Response
(Rodr.) ¶¶ 4-5, 8; Dkt. 68, Ex. A ¶ 8.) There may even be a genuine issue as to whether Plaintiffs
were on the bus at all. (USA’s 56.1 Response (Rodr.) ¶ 5.) These factual disputes would likely
preclude summary judgment as to liability.
Nonetheless, the Court need not rule on the liability issue. The Court is granting summary
judgment to Defendants based on Plaintiffs’ failure to establish a “serious injury” resulting from
the April 2008 accident. The parties’ arguments as to liability are therefore moot. See, e.g.,
Nicholas v. Cablevision Sys. Corp., 984 N.Y.S. 2d 332, 334 (App. Div. 2014) (“Given the absence
of serious injury, the issue of liability is academic.”); Arenes, 2006 WL 1517756, at *9
(similar). Accordingly, the Court denies Plaintiffs’ motion for partial summary judgment as to
liability and the NYCTA and Lopez’s motion for summary judgment as to liability.
IV. Conclusion
For the foregoing reasons, the United States’ motions for summary judgment are GRANTED,
Plaintiffs’ cross-motion for partial summary judgment is DENIED, and the NYCTA and Lopez’s
motion for summary judgment is GRANTED in part and DENIED in part.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: March 31, 2017
Brooklyn, New York
29
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