Shlotzhauer et al v. United States of America

Filing 36

MEMORANDUM-DECISION and ORDER - That defendant's 26 motion for summary judgment is GRANTED. That the Clerk close this case. Signed by Senior Judge Gary L. Sharpe on 8/16/2018. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JOLEEN SHLOTZHAUER et al.,
6:15-cv-84
(GLS/TWD)

Plaintiffs,
v.
UNITED STATES OF AMERICA,

Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFFS:
Fine, Olin & Anderman, LLP
1279 Route 300
P.O. Box 1111
Newburgh, NY 12551

MARSHALL P. RICHER, ESQ.
LAWRENCE D. LISSAUER,
ESQ.

FOR THE DEFENDANT:
HON. GRANT C. JAQUITH
United States Attorney
James T. Foley U.S. Courthouse
445 Broadway, Room 218
Albany, NY 12207-2924

KAREN FOLSTER
LESPERANCE
Assistant United States Attorney

Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiffs Joleen Shlotzhauer (hereinafter “Shlotzhauer”) and Eric
Shlotzhauer (hereinafter “Eric”) commenced this action against defendant

United States of America pursuant to the Federal Tort Claims Act
(FTCA).1 (Compl., Dkt. No. 1.) Shlotzhauer alleges that she was injured
in a car accident attributable to the negligence of a United States Postal
Service (USPS) employee while he was operating a government vehicle
within the scope of his employment. (See generally id.) Eric alleges that,
as a result of this accident involving his wife, he suffered various
emotional and financial injuries. (See id. at 6-7.) Pending before the
court is the government’s motion for summary judgment based upon the
absence of “serious injury.” (Dkt. No. 26.) For the reasons that follow, the
government’s motion is granted.
II. Background
A.

Facts2
On the evening of December 16, 2011, James Boyles, a USPS

employee, was collecting mail in Utica, New York. (Def.’s Statement of
1

See 28 U.S.C. §§ 1346(b), 2671-80.

2

Unless otherwise noted, the facts are undisputed. The government asserts facts in its
memorandum of law that are absent from its statement of material facts. This alone is enough for the
court to deny its motion. See N.D.N.Y. L.R. 7.1(a)(3). However, plaintiffs do not raise this issue and also
run afoul of the rules by failing to set forth additional material facts that they contend are in dispute in
separately numbered paragraphs in their response to the government’s statement of material facts. See
id. Despite the parties’ absentmindedness, the court will consider facts set forth within the parties’
memoranda that are supported by specific citations to the record. However, plaintiffs’ error is particularly
egregious in certain portions of their response papers. (See, e.g., Dkt. No. 32, Attach. 1 at 12-16, 18.)
As such, the court declines to scour the voluminous record for evidence to support plaintiffs’ assertions.
See Prive v. Johnson, No. 5:04–CV–1024, 2010 WL 3338810, at *2 & n.2 (N.D.N.Y. Aug. 23, 2010).

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Material Facts (SMF) ¶ 1, Dkt. No. 26, Attach. 2.) It was dark and the
roads were wet. (Id. ¶ 2; Dkt. No. 32 ¶ 2.) After stopping at an
intersection, Boyles proceeded to make a right turn. (Def.’s SMF ¶¶ 3-4.)
As he turned the corner, the USPS vehicle struck Shlotzhauer. (Id. ¶¶ 45, 7.)
Emergency responders arrived and observed “[one] female patient
sitting upright on the ground under care of bystanders.” (Id. ¶¶ 10-11
(internal quotation marks and citation omitted).) They noted that she had
been “struck at a very low rate of speed by a [USPS employee] making a
right hand turn at a very low rate of speed.” (Id. ¶ 12 (internal quotation
marks and citation omitted).) Shlotzhauer was transported to a hospital
for treatment. (Id. ¶ 13.) A computerized tomography (CT) scan of her
abdominal area noted no traumatic abnormalities. (Id. ¶ 14.) A CT scan
of the thoracic spine noted multi-level degenerative disc disease. (Id.
¶ 15.) A CT scan of her cervical spine showed multi-level degenerative
disease, bulging discs, and bone spurs. (Id. ¶¶ 16-17.)
Prior to the accident, body imaging conducted on Shlotzhauer also
showed degenerative disc disease. (Id. ¶ 30.) However, before the
accident, plaintiffs contend that this degenerative disc disease affected
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only the lumbar spine and did not necessitate treatment. (Dkt. No. 32
¶ 29 (citing Dkt. No. 32, Attach. 10).)
On December 19, 2011, Shlotzhauer’s primary care provider, nurse
practitioner Carrie Stemmer, ordered additional imaging studies. (Def.’s
SMF ¶ 18.) An x-ray of the right shoulder revealed no bone or tissue
abnormality; an x-ray of the right hip revealed minimal degenerative
changes and no evidence of acute fracture or dislocation; and an x-ray of
the lumbar spine showed mild to moderate degenerative change in the
lower lumbar spine area and no acute compression fractures. (Id. ¶¶ 1820.) On December 27, 2011, a magnetic resonance imaging (MRI)
revealed that Shlotzhauer’s right shoulder was normal. (Id. ¶ 21.)
Additionally, an MRI of her cervical spine showed “advanced degenerative
arthritis[,] disc disease,” disc herniation, moderate spinal stenosis, and
bone spurs. (Id. ¶ 22 (internal quotation marks and citation omitted); Dkt.
No. 26, Attach. 9 at 2.) NP Stemmer found these results “consistent with
advanced degenerative arthritic change.” (Dkt. No. 26, Attach. 9 at 2.)
Two days later, Shlotzhauer was treated at a medical center for
complaints of light-headedness, dizziness, and blurred vision. (Def.’s
SMF ¶ 23.) A head CT scan, blood work, and an electrocardiogram
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(EKG) all showed normal results. (Id. ¶¶ 23-24.) Shlotzhauer was
diagnosed with thoracic strain and hypertension. (Id. ¶ 25.) Dr. Patrick
Costello later recorded a normal brain MRI, perfect vision in both eyes,
and his impression of transient vision loss. (Id. ¶ 27; Dkt. No. 32 ¶ 27.) A
subsequent eye examination revealed that Shlotzhauer had “normal,
healthy” eyes. (Def.’s SMF ¶ 28.)
On November 6, 2016, Dr. William Montgomery reviewed all of
these medical records and conducted an independent medical
examination of Shlotzhauer.3 (Dkt. No. 26, Attach. 14.) He found that
“with the exception of the scapular dyskinesis, which could cause some
shoulder pain . . . [t]here is no other objective data to corroborate her
bodily pain.” (Id. at 6.)
B.

Procedural History
Plaintiffs commenced this action on January 23, 2015, alleging an
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Plaintiffs rely on New York procedural rules to argue that the court should not consider the
unsworn declaration of Dr. Montgomery. (Dkt. No. 32, Attach. 1 at 7 (citing Marsh v. Wolfson, 186
A.D.2d 115, 116 (2d Dep’t 1992)).) However, plaintiffs “overlook[] the fact that this action has been
brought in Federal Court, and thus, federal procedural and evidentiary law apply here.” Williams v. Elzy,
No. 00 Civ. 5382, 2003 WL 22208349, at *5 (S.D.N.Y. Sept. 23, 2003). In this District, “[d]espite the
potential inappropriateness of submitting the unsworn report of a party’s own expert to support . . . a
summary judgment motion, such a defect is . . . curable through the submission of an affidavit or a
declaration verifying the report’s contents.” Cornell Research Found., Inc. v. Hewlett-Packard Co., Civ.
Action No. 5:01–CV–1974, 2007 WL 4349135, at *19 (N.D.N.Y. Jan. 31, 2007) (collecting cases). Here,
the government provides a sworn declaration by Dr. Montgomery verifying the contents of his report.
(Dkt. No. 35, Attach. 3.) As such, the court is confident that the evidence would be admissible at trial and
is properly considered at this stage.

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FTCA claim based upon the government’s negligence and seeking
damages of $3,300,000. (See generally Compl.) Following discovery, the
government moved for summary judgment. (Dkt. No. 26.)
III. Standard of Review
The standard of review pursuant to Rule 56 of the Federal Rules of
Civil Procedure is well established and will not be repeated here. For a
full discussion of the standard, the court refers the parties to its decision in
Wagner v. Swarts, 827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom.
Wagner v. Sprague, 489 F. App’x 500 (2d Cir. 2012).
IV. Discussion
Under the FTCA, the government’s liability is determined according
to the law of the state where the incident giving rise to the claim occurred.
Goodkin v. United States, 773 F.2d 19, 21 (2d Cir. 1985). As applicable
here, New York’s “No-Fault” Law precludes recovery of non-economic loss
resulting from the negligent operation of a motor vehicle “except in the
case of a serious injury.” N.Y. Ins. Law § 5104(a). “Serious injury”
includes, among other things,
personal injury which results in . . . permanent loss of use of a
body organ, member, function or system; permanent
consequential limitation of use of a body organ or member;
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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.
Id. § 5102(d). To prevail on a summary judgment motion, a defendant
claiming that a plaintiff did not suffer a serious injury must present
competent medical evidence that the plaintiff’s injuries were not caused by
the car accident at issue, see Ostroll v. Nargizian, 97 A.D.3d 1076, 1077
(3d Dep’t 2012), or that the injuries do not meet the definition for “serious
injury” as set forth in § 5102(d), see Henry v. Rivera, 34 A.D.3d 352, 353
(1st Dep’t 2006); Seminara v. Grossman, 253 A.D.2d 420, 421 (2d Dep’t
1998). Thereafter, the burden shifts to the plaintiff “to proffer medical
evidence that contain[s] objective, quantitative evidence with respect to
diminished range of motion or a qualitative assessment comparing [the
plaintiff’s] present limitations to the normal function, purpose[,] and use of
the affected body organ, member, function[,] or system.” Ostroll, 97
A.D.3d at 1077 (internal quotation marks and citations omitted).
Additionally, if the defendant presents evidence of preexisting injuries, the
plaintiff must present evidence addressing the claimed lack of causation.
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See id.
After identifying multiple potentially-applicable definitions of serious
injury, the government claims that Shlotzhauer cannot meet any of them.
(Dkt. No. 26, Attach. 1 at 10-12.) Based on the independent medical
assessment of Dr. Montgomery, the government contends that
“[Shlotzhauer]’s complaints of pain are not corroborated by an[y] objective
medical findings and that any abnormalities in her imaging studies reflect
pre-existing degenerative changes.” (Id. at 9 (citing Dkt. No. 26, Attach.
14).) Plaintiffs argue that the government has not met its initial burden of
demonstrating a lack of serious injury. (Dkt. No. 32, Attach. 1 at 5.)
Specifically, plaintiffs contend that “Dr. Montgomery’s opinion is baseless
without any medical documentation to support his conclusion that . . .
Shlotzhauer’s injuries were pre-existing . . . [and] because, having
determined that the conditions were pre-existing, he failed to address
whether they were aggravated or exacerbated by the accident[.]” (Id. at
9.) Instead of providing their own expert opinion to the contrary, plaintiffs
contend that medical records show that Shlotzhauer suffered serious
injury from the accident. (Id. at 11-18.)
A careful review of the record evidence demonstrates that the
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government has established that Shlotzhauer’s conditions preexisted the
subject accident, and her subjective assessments of injury to her neck,
lumbar spine, hip, shoulder, or vision are not enough to classify her injury
as serious within the meaning of New York’s no-fault statute. (Dkt. No.
26, Attach. 1 at 8-9.)
After examining all of the above-mentioned medical evidence, (Dkt.
No. 26, Attach. 14 at 1-2), Dr. Montgomery found that the only objective
data to corroborate the bodily pain Shlotzhauer complained of was the
scapular dyskinesis diagnosis, “which could cause some shoulder pain,”
(id. at 6). However, Dr. Montgomery opined that Shlotzhauer’s shoulder
condition was normal for a woman her age, and that “it [wa]s questionable
whether the MRI findings [in her shoulder] occured during the [accident].”
(Id. at 5.) Instead, he found that there was “some symptom magnification”
and “her pain does seem out of proportion to what would be expected in
the absence of imaging findings or with very limited findings on such
objective studies such as MRIs and x-rays.” (Id. at 3, 6.) He also found
that image studies showing disc herniations in the lumbar and cervical
spine indicated conditions that are degenerative in nature, which were
consistent both before and after the accident. (Id. at 3-4.) As for
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Schlotzhauer’s neck pain, Dr. Montgomery found “there is nothing in the
. . . medical findings to explain her reported pain.” (Id. at 5.) Although Dr.
Montgomery noted the lumber spine imaging that showed “some slightly
increased disc degeneration” after the accident, he concluded that “there
has not been a significant radiologic change to corroborate or explain the
symptoms she claims.” (Id. at 5-6.) Additionally, Dr. Montgomery
explained that there was “no stenosis in the lumbar spine to explain [her
hip pain] and no visible bony injury.” (Id. at 6.)
“[W]hether a limitation of use or function is significant or
consequential . . . relates to medical significance and involves a
comparative determination of the degree or qualitative nature of an injury
based on the normal function, purpose[,] and use of the body part.” Toure
v. Avis Rent A Car Sys., 98 N.Y.2d 345, 353 (2002) (footnote, internal
quotation marks, and citation omitted). To establish a serious injury based
on a significant limitation of use of a body function or system, Shlotzhauer
must prove that she suffered from “something more than a . . . minor,
mild[,] or slight limitation of use.” Licari v. Elliott, 455 N.Y.S.2d 570, 573
(1982). The significance of the limitation must be supported by credible
medical evidence and must be objectively measured and quantified. See
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Lanuto v Constantine, 192 A.D.2d 989, 991 (3d Dep’t 1993). Subjective
complaints of pain, unsupported by credible medical evidence, cannot
form the basis of a significant limitation. See Scheer v. Koubek, 70
N.Y.2d 678, 679 (1987). Moreover, conclusory claims of causation by
physicians are not sufficient to rebut detailed findings of degenerative
changes. See Henchy v. VAS Express Corp., 115 A.D.3d 478, 479 (1st
Dep’t 2014). Here, although Shlotzhauer had some pain caused by
scapular dyskinesis in her shoulder, it was not something more than the
normal shoulder condition for a person her age. (Dkt. No. 26, Attach. 14
at 5.) As for Shlotzhauer’s other complaints of pain, there is credible
evidence that her injury was either non-existent or degenerative in nature.
(Id. at 3-6.)
Furthermore, the evidence does not demonstrate that Shlotzhauer
suffered a “a medically determined injury or impairment of a
non-permanent nature which prevents [her] from performing substantially
all of the material acts which constitute [her] 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). “Substantially all” is “construed to mean that the
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person has been curtailed from performing his usual activities to a great
extent rather than some slight curtailment.” Licari, 455 N.Y.S.2d at 573.
Given the lack of objective medical evidence indicating that Shlotzhauer
was more than slightly curtailed from performing her daily activities as a
result of injuries sustained in the accident, and for the reasons stated by
the government, (Dkt. No. 26, Attach. 1 at 11-12), Shlotzhauer fails to
meet this definition of “serious injury.” As such, the government met its
initial burden of showing a lack of serious injury and that the source of the
pain experienced by Shlotzhauer was pre-existing. See Ostroll, 97 A.D.3d
at 1077; Henry, 34 A.D.3d at 353; Seminara, 253 A.D.2d at 421.
Plaintiffs’ reliance on Dr. Connolly’s report to rebut Dr. Montgomery’s
expert opinion is misplaced. After reviewing Dr. Connolly’s report, no
reasonable person could conclude that he “opined that [Shlotzhauer’s]
neck, back[,] and bilateral shoulder pain was caused by the motor vehicle
accident.” (Compare Dkt. No. 32, Attach. 1 at 15, with Dkt. No. 32,
Attach. 13 at 5.) In fact, Dr. Connolly supported Dr. Montgomery’s
findings: he found “no spinal deformity”; “pre-existing multilevel
degeneration of the cervical spine”; and “signs of symptom magnification
and chronic pain behavior, which are unfortunate and typically relate to a
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delay in recovery.” (Dkt. No. 32, Attach. 13.) Notably, Dr. Connolly also
concluded that, despite “pre-existing conditions that contribute
substantially to the delay in her recovery,” Shlotzhauer was “capable of
employment [in her former position].” (Id. at 5.)
Plaintiffs attempt to characterize the record medical evidence as
demonstrating a decreased range of motion and continued course of
treatment following the accident that is indicative of a serious injury. (Dkt.
No. 32, Attach. 1 at 9-18.) However, plaintiffs fail to provide specific
citations for many of their factual assertions, as discussed above, and do
not present objective evidence demonstrating that any injury Shlotzhauer
suffered was either serious or not the result of pre-existing disc
degeneration. See Ostroll, 97 A.D.3d at 1077. Even if the plaintiffs’
factual assertions were properly supported, their claims fail for the
reasons stated by the government. (Dkt. No. 35 at 4-6.) Accordingly, the
government’s motion is granted.4

4

Although the analysis above relates only to plaintiffs’ claims for non-economic damages,
plaintiffs’ claims that Shlotzhauer suffered economic loss in excess of basic economic loss are also
dismissed for the reasons stated by the government. (Dkt. No. 35 at 6-7.) Not only did plaintiffs fail to
offer any expert medical testimony or objective medical evidence demonstrating their entitlement to such
relief, but they filed medical evidence that demonstrated that Shlotzhauer was able to continue her
employment after the accident. (Dkt. No. 32, Attach. 13 at 5.) Additionally, given that all of Shlotzhauer’s
claims are dimissed, Eric’s derivative claims do not survive. See Rosse v. United States, 110 F. Supp.
3d 415, 428-29 (N.D.N.Y. 2015).

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V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendant’s motion for summary judgment (Dkt. No.
26) is GRANTED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.

IT IS SO ORDERED.
August 16, 2018
Albany, New York

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