Catania v. United States of America
Filing
60
REPORT AND RECOMMENDATIONS re 40 MOTION for Summary Judgment filed by United States of America. Objections due fourteen days from receipt. DECISION AND ORDER denying 47 MOTION for Extension of Time to Complete Discovery filed by Elizabeth M. Catania. Signed by Hon. Leslie G. Foschio on 12/11/2017. (SDW)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
ELIZABETH M. CATANIA,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
______________________________________
REPORT
and
RECOMMENDATION
----------------------------DECISION
and
ORDER
14-CV-00553A(F)
APPEARANCES:
WILLIAM MATTAR, P.C.
Attorneys for Plaintiff
C. DANIEL McGILLICUDDY,
F. DAVID RUSIN, and
MATTHEW JOSEPH KAISER, of Counsel
6720 Main Street
Suite 100
Williamsville, New York 14221
JAMES P. KENNEDY
ACTING UNITED STATES ATTORNEY
Attorney for Defendant
MARY K. ROACH
Assistant United States Attorney, of Counsel
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202
JURISDICTION
On September 30, 2014, Honorable Richard J. Arcara referred this case to the
undersigned for all pretrial matters including preparation of a report and
recommendation on dispositive motions. The matter is presently before the court on
Defendant’s motion for summary judgment (Dkt. 40), filed December 22, 2016, and on
Plaintiff’s cross-motion for an extension of time to complete discovery (Dkt. 47), filed
March 17, 2017.1
BACKGROUND
On July 9, 2014, Plaintiff Elizabeth M. Catania (“Plaintiff”), commenced this
action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 (“FTCA” or
“the Act”), seeking to recover for personal injuries allegedly sustained in a May 7, 2013,
motor vehicle collision between a vehicle owned and operated by Plaintiff and a vehicle
owned by Defendant United States of America (“Defendant” or “Government”), and
operated by Keil Milbrand (“Milbrand”). Defendant’s answer (Dkt. 7) was filed
September 29, 2014.
In the court’s initial Scheduling Order filed November 12, 2014 (Dkt. 12), the
deadline for Plaintiff to disclose any expert witnesses and to provide expert witness
reports was set as September 12, 2015. Plaintiff’s expert witness disclosure deadline
was extended three times, with the most recent deadline set forth in the Third Amended
Scheduling Order (Dkt. 34) as June 8, 2016.
The parties have participated in several mediation sessions, with the last
mediation session held on January 22, 2015, following which a Mediation Certification
was filed November 9, 2016, indicating the case has not settled, but the parties may
schedule another mediation session at a later date.
1
Although Defendant’s Motion for summary judgment is dispositive, whereas Plaintiff’s Moion for an
extension of time in which to complete discovery is non-dispositive, the court considers both motions in
this combined Report and Recommendation/Decision and Order in the interests of convenience and
judicial economy.
2
On December 22, 2016, Defendant filed the instant motion for summary
judgment (Dkt. 40) (“Defendant’s Motion”), the Declaration of Assistant United States
Attorney (“AUSA”) Gail Y. Mitchell (Dkt. 41) (“Mitchell Declaration”), Defendant’s
Statement of Material Facts Not in Dispute Pursuant to Local Rule 56.1 (Dkt. 42)
(“Defendant’s Statement of Facts”), exhibits A through Q (Dkts. 43-1 through 43-14)
(“Defendant’s Exh(s). __”), and the Memorandum of Law in Support of United States’
Motion for Summary Judgment (Dkt. 44) (“Defendant’s Memorandum”).
On January 27, 2016, Plaintiff identified as expert witnesses, inter alia, treating
physicians Edward D. Simmons, M.D. (“Dr. Simmons”), and A. Marc Tetro, M.D. (“Dr.
Tetro”), and treating chiropractor Julius Horvath, D.C. (“Dr. Horvath”). Plaintiff,
however, did not produce any expert witness reports for these three treating sources
until January 27, 2017.
On March 17, 2017, Plaintiff filed a cross-motion seeking an extension of time to
serve expert witness disclosure for her treating physicians and chiropractor (Dkt. 47)
(“Plaintiff’s Motion”), attaching the Attorney Affidavit of C. Daniel McGillicuddy (Dkt. 471) (“McGillicuddy Affidavit”), exhibits A through R (Dkts. 47-2 through 47-19) (“Plaintiff’s
Exh(s). __”), the Memorandum of Law in Support of the Cross-Motion of Ms. Catania
and in Opposition to the Motion of the Government (Dkt. 47-20) (“Plaintiff’s
Memorandum”), and Plaintiff’s Local Rule 56 Statement of Material Facts (Dkt. 47-21)
(“Plaintiff’s Statement of Facts”). On March 23, 2017, Plaintiff filed an amended version
of Plaintiff’s Exh. Q (Dkt. 48) (“Plaintiff’s Exh. Q”). On May 15, 2017, Defendant filed
Defendant’s Memorandum of Law in Opposition to Plaintiff’s Cross-Motion for Extension
of Time to Serve Expert Disclosure (Dkt. 52) (“Defendant’s Response”), the Affidavit of
3
AUSA Gail Y. Mitchell (Dkt. 53) (“Mitchell Response Affidavit”), and Defendant’s Reply
Memorandum of Law (Dkt. 54) (“Defendant’s Reply”). On May 26, 2017, Plaintiff filed
the Attorney Affidavit of Matthew K. Kaiser, Esq., in Reply (Dkt. 55) (“Kaiser Affidavit”),
attaching the Reply Memorandum of Law in Further Support of the Cross-Motion of Ms.
Catania (Dkt. 55-1) (“Plaintiff’s Reply”). This court’s June 19, 2017 Text Order (Dkt. 57),
directed Defendant to file by July 7, 2017, a sur-reply to Plaintiff’s Motion. Accordingly,
on June 29, 2017, Defendant filed the Affidavit of AUSA Mary K. Roach in Further
Support of Defendant’s Opposition to Plaintiff’s Cross-Motion (Dkt. 58) (“Roach
Affidavit”), and the Sur-Reply Memorandum of Law (Dkt. 59) (“Defendant’s Sur-Reply”).
Oral argument was deemed unnecessary.
Based on the following, Plaintiff’s Motion is DENIED; Defendant’s Motion should
be GRANTED.
FACTS2
The Collision
At 7:42 A.M. on Tuesday, May 7, 2013, a collision occurred in the southbound
lane of Elmwood Avenue in Buffalo, New York (“the collision”), between two vehicles
including a vehicle owned and operated by Plaintiff Elizabeth M. Catania (“Plaintiff” or
“Catania”) (“Plaintiff’s vehicle”), and a vehicle owned by Defendant United States of
America (“Defendant” or “Government”) (“Defendant’s vehicle”), and operated by Keil J.
Milbrand (“Milbrand”) who, although not a Government employee but a New York State
Parole Officer, was then assigned to the Federal Bureau of Investigation (“FBI”) Safe
2
Taken from the pleadings and motion papers filed in this action.
4
Streets Task Force and on duty as a Task Force Officer. The New York State
Department of Motor Vehicles Police Accident Report (“accident report”)3 issued by the
Buffalo Police Department (“Buffalo Police”), pertaining to the collision indicates
Plaintiff’s vehicle turned into Defendant’s vehicle while Milbrand was attempting to pass,
resulting in a side-swipe collision. According to the accident report, there was damage
to both vehicles, but no injuries, yet following the collision, Plaintiff presented to the
emergency room at Buffalo General Medical Center (“Buffalo General”), complaining of
neck pain radiating into her right leg, was diagnosed with a contusion and whiplash and
given a one-day excuse from work. At the time of the collision, Plaintiff was employed
on a per diem basis as a substitute teacher with the Buffalo Public School District.
Medical History
On August 16, 2012, Plaintiff was examined by her primary care physician
Xinyue Liu-Chen, M.D. (“Dr. Liu-Chen”), in connection with complaints of severe leftsided neck and right upper back pain, particularly manifesting as severe sharp pain
when turning her head. Defendant’s Exh. L at Bates 713 (Dkt. 43-7 at 14). Plaintiff
reported no known injury, but merely awoke with the severe pain. Id. Examination
revealed decreased range of motion (“ROM”), in her cervical back with tenderness,
bony tenderness and spasm, but no swelling. Id. at Bates 714 (Dkt. 43-7 at 15).
Cervical spine X-rays taken August 17, 2012, were negative, and Plaintiff’s acute neck
pain was attributed to neck muscle spasm, for which conservative treatment was
planned, including heating pad, massage, Motrin and Flexeril for three days, tapering to
as needed. Id.
3
Defendant’s Exh. B (Dkt. 43-1 at 6); Plaintiff’s Exh. A (Dkt. 47-2).
5
On September 5, 2012, Plaintiff continued to complain of “very bad pain from the
top of her neck to her shoulder blades,” for which Dr. Liu-Chen referred her for physical
therapy. Defendant’s Exh. L at Bates 728 (Dkt. 43-7 at 22). On September 7, 2012,
Plaintiff underwent initial evaluation by Physical Therapist Laura Vargovich (“PT
Vargovich”), for right cervical pain of insidious onset, described as burning and tingling
down her right arm with frequent headaches, and turning her head increased the pain.
Id. at Bates 729-35 (Dkt. 43-7 at 17-22; Dkt. 43-8 at 1). Plaintiff reported to PT
Vargovich her neck pain had increased since its onset, and that prior to experiencing
her neck pain, Plaintiff practiced martial arts four to five times a week. Id. Upon
examination by PT Vargovich, Plaintiff’s cervical active ROM showed flexion was mildly
limited producing central posterior pain and pulling, extension was within normal limits
producing pain at end range, and sidebending and rotation both showed mild limitation
to the right producing right cervical pain, and mild limitation to the left with no change in
pain. Id. Bilateral shoulder ROM was within normal limits throughout all planes, with
pain reported in the right neck and scapular region with end range right shoulder flexion
and abduction. Id. Manual muscle testing could not be assessed due to the severity of
Plaintiff’s symptoms. Id. PT Vargovich assessed Plaintiff’s signs and symptoms were
consistent with right cervical pain, diagnosed cervicalgia (neck pain), with good
rehabilitation potential and physical therapy twice a week was scheduled with Plaintiff to
be re-assessed after two weeks. Id. Plaintiff, however, did not return for any future
physical therapy sessions, but was a “no-show” on September 10, 2012, and canceled
for September 13, 2012, resulting in Plaintiff being discharged from physical therapy on
October 31, 2012, for non-compliance. Id.
6
Plaintiff did not seek further treatment for her cervicalgia until after the May 7,
2013 collision. In particular, following the collision, Plaintiff drove herself to Buffalo
General where Plaintiff complained of minimal diffuse neck pain and right sciatic pain
radiating into her right thigh. Defendant’s Exh. K (Dkt. 43-7 at 6-12). An X-ray of
Plaintiff’s cervical spine showed normal alignment, normal disc spaces, and no
fractures, but slight loss of lordosis which may be positional or spasm, and minor
spondylosis. Id.
On Thursday, May 9, 2013, Plaintiff was examined by Dr. Liu-Chen for
complaints of low back and neck pain and left wrist swelling immediately after the
collision, followed by tingling and pain in her right thigh with numbness, but no urine or
bowel problems, nor any weakness in her arms or legs. Defendant’s Exh. L at Bates
769-72 (Dkt. 43-8 at 2-5). Upon examination, ROM for Plaintiff’s right and left wrists
were within normal limits without tenderness, although Plaintiff had decreased ROM and
was tender in the cervical and lumbar muscles with spasm. Id. X-rays of Plaintiff’s
lumbosacral spine were largely normal with no evidence of fracture, spondylolysis or
spondylolisthesis, but mild degenerative disc changes at L5-S1. Id. Dr. Liu-Chen
diagnosed low back pain with radiculopathy and neck pain, and continued Plaintiff’s
muscle relaxants and pain medications, advising Plaintiff to remain out of work until
Monday because of pain and the drowsiness caused by Plaintiff’s medications. Id.
On May 15, 2013, Plaintiff began chiropractic treatments with Julius Horvath,
D.C. (“Dr. Horvath”) of Horvath Chiropractic, for complaints of neck, thoracic and low
back pain, left wrist and hand tingling, and leg numbness and tingling. Defendant’s Exh.
H at Bates 251 (Dkt. 43-4 at 18). On June 7, 2013, Plaintiff, upon Dr. Horvath’s referral,
7
underwent magnetic resonance imaging (“MRI”) of her cervical and lumbar spines. Id.
at Bates 306-08 (Dkt. 43-4 at 4-6). The lumbar spine MRI showed moderate left L4-5
foraminal narrowing secondary to disc protrusion encroachment, possible far lateral disc
extrusion, L4-5 facet prominence, mild central stenosis, and recess compromise mainly
from anterior epidural encroachment by a disc bulge. The cervical spine MRI showed
C6-7 spondylosis (degeneration), retrolisthesis (slipped disc) and mild central stenosis
(narrowing of the spinal canal) from the pincer effect of encroachment by a disc spur
ridge and the posterior elements, moderate left and mild right C6-7 forminal
compromise from encroachment by spurring at the uncoverterbral joints (cervical spine
directly below skull), and minimal bulge of the C5-6 disc. Neither the lumbar nor
cervical MRI showed any evidence of traumatic disc herniation, traumatic disc bulge,
nerve root compression, or fracture at any level. Defendant’s Exh. O at 3 (Dkt. 43-11 at
4). Dr. Horvath examined Plaintiff on June 18, 2013, reporting Plaintiff had diminished
lumbar ROM with local pain, lower limb pain, and dysesthesias (abnormal sensation),
and diagnosed lumbar segmental dysfunction, disc bulge/herniation, and facet
syndrome, suspected lumbar radiculopathy, pain in the extremities and parathesia
(numbness or tingling), and a differential diagnosis of lumbar radiculopathy and
peripheral neuropathy for which lower extremity nerve conduction velocity (“NCV”) and
electromyography (“EMG”) diagnostic studies were ordered. Defendant’s Exh. H at
Bates 298 (Dkt. 43-5 at 3).
On July 17, 2013, Plaintiff underwent an independent physical examination by
Frank Luzi, M.D. (“Dr. Luzi”), who diagnosed cervical and lumbar strain and sprain, and
multiple level degenerative disc disease that pre-existed the May 7, 2013 collision,
8
considered largely a “factor of age,” and for which Plaintiff was minimally symptomatic.
Dr. Luzi’s Report (Defendant’s Exh. M at Bates 1193-95 (Dkt. 43-9 at 5-7)). Dr. Luzi
opined Plaintiff could return to work with restrictions of avoiding repetitive bending of the
neck or waist, lifting or carrying more than 20 lbs., and sitting, standing or walking for
prolonged periods, but that Plaintiff’s substitute teaching position would be within such
restrictions. Id. Dr. Luzi further opined Plaintiff should attend physical therapy 2 to 3
times a week for 12 weeks, required no further diagnostic testing, and that a
prescription for Flexeril would be reasonable for spasms, with over-the-counter
Ibuprofen recommended for pain. Id.
On July 24, 2013, Plaintiff was examined by A. Marc Tetro, M.D. (“Dr. Tetro”), a
head, shoulder and elbow surgeon, upon referral by Dr. Horvath for consultation.
Defendant’s Exh. G at Bates 216-20 (Dkt. 43-4 at 11-15). According to Dr. Tetro,
Plaintiff reported that during the collision’s impact, her left hand was on the steering
wheel and since the collision Plaintiff had pain in her left wrist, and currently presented
with pail in the dorsal aspect of the left wrist aggravated by dorsiflexion and pushing
activities, and generalized stiffness involving the hand and forearm. Id. X-rays of
Plaintiff’s left wrist were largely unremarkable except for some lateral subluxation of the
thumb metacarpal at the trapeziometacarpal CMC joint. Id. Dr. Tetro assessed left
wrist sprain with possible scapholunate ligament tear, left hand diffuse flexor
tensynovitis, left wrist extensor tensynovitis – primarily affecting the fourth compartment,
and left wrist trapeziometacarpal CMC joint capsular laxity – currently asymptomatic.
Id. Dr. Tetro opined Plaintiff’s “significant” left wrist injury was causally related to the
collision, rendered Plaintiff totally disabled, and treatment plan included MRI study of
9
the left wrist to evaluate the scapholunate ligament, full-time immobilization cockup wrist
splint, and anti-inflammatory medication, with follow-up in four weeks. Id. On July 25,
2013, a left wrist MRI showed some swelling of the wrist dorsum possibly representing
small ganglion cysts without evidence of traumatic tendinitis, traumatic ligament tear, or
fracture. Defendant’s Exh. O at 3 (Dkt. 43-11 at 4).
On August 6, 2013, Plaintiff was examined by Edward D. Simmons, M.D. (“Dr.
Simmons”), an orthopedic surgeon, for complaints of “lower back pain-numbing/tingling;
neck pain-wrist (left) and arm.” Defendant’s Exh. N at Bates 1623-25 (Dkt. 43-10 at 911). Upon examination, Plaintiff had decreased ROM in her lumbar spine with flexion at
30%, and extension at 20%, sensory exam was diminished to light touch of the left
lower extremity globally compared to the right, and straight leg raising test was positive,
producing low back pain. Id. at Bates 1625 (Dkt. 43-10 at 11). Dr. Simmons’s
impression was on-going neck pain, headaches and radiculopathy, low back pain, and
left lower extremity radiculopathy, the symptoms of which were partially, temporarily
improved with chiropractic treatment, and Plaintiff had recently begun massage
therapy.4 Id. The treatment plan included continuing the present regimen with reevaluation in 3 to 4 months. Id. Dr. Simmons opined Plaintiff’s on-going symptoms
were causally related to the May 7, 2013 collision. Id.
In follow-up with Dr. Tetro on August 14, 2013, Plaintiff’s demonstrated left wrist
trapeziometacarpal CMC joint capsular laxity was then asymptomatic. Defendant’s Exh.
G at Bates 211-15 (Dkt. 43-4 at 6-10). Plaintiff reported improvement with the left wrist
4
On August 30, 2013, December 6, 2013, and January 10, 2014, Plaintiff received massage therapy from
Massage Therapeutic Arts, see Defendant’s Exh. J at Bates 1674, 1675, 1695 (Dkt. 43-7 at 2-4), the
records for which contain only codes with no explanation key such that the court cannot discern the
significance of such treatments.
10
cockup wrist splint when used, but removal of the splint caused dorsal sided wrist pain
to return. Id. Dr. Tetro noted Plaintiff’s recent left wrist MRI showed no tear in the
scapholunate interval region, and a corticosteroid injection administered by Dr. Tetro
was well tolerated by Plaintiff. Id. Plaintiff was to continue use of the cockup wrist splint
and Dr. Tetro opined Plaintiff remained disabled with regard to her usual occupation. Id.
Upon returning to Dr. Tetro on September 27, 2013, Plaintiff reported “near
complete relief of her left wrist pain following a corticosteroid injection,” and was without
significant pain on a daily basis. Defendant’s Exh. G at Bates 207-210 (Dkt. 43-4 at 25). Dr. Tetro assessed Plaintiff’s left wrist trapeziometacarpal CMC joint capsular laxity
as currently asymptomatic, observing Plaintiff had returned to work, with follow-up only
as needed. Id.
On January 22, 2014, Plaintiff underwent an independent chiropractic
examination by chiropractor Louis Marconi, D.C. (“Dr. Marconi”), who diagnosed
resolved cervical and lumbar sprain and strain causally related to the May 7, 2013
collision, yet opined Plaintiff was not in any way disabled and could perform her normal
and customary work as a substitute teacher, work in which Plaintiff was then engaged.
Dr. Marconi’s Report (Defendant’s Exh. M at Bates 1199-1203 (Dkt. 43-9 at 8-12)). Dr.
Marconi further opined there was no need at that time for further diagnostic testing or
durable medical equipment. Id.
An October 11, 2014, lumbar spine MRI showed broad disc herniation at L4-L5
with left and right lateral radial annual tears, facet hypertrophy with left L4 nerve root
impression, right L4 nerve root abutment, moderate left and mild right foraminal
narrowing, mild lateral recess stenosis, L5 nerve root abutment, borderline central
11
spinal stenosis unchanged since the June 7, 2013 lumbar spine MRI, and stable
hydration loss from T11-T12 through L4-L5. Defendant’s Exh. H at Bates 252-53 (Dkt.
43-4 at 18-19).
On February 3, 2016, Plaintiff, in connection with the instant litigation, underwent
an independent medical examination (“IME”) conducted by Defendant’s retained
independent medical expert John Leddy, M.D. (“Dr. Leddy”), who also reviewed
Plaintiff’s medical records relative to the injuries for which Plaintiff sought medical
treatment following the collision. Defendant’s Exh. O (Dkt. 43-11 at 2-6) (“Dr. Leddy’s
Report”). In his report based on his physical examination of Plaintiff and review of
Plaintiff’s medical records and diagnostic studies, Dr. Leddy opined that as a result of
the collision, Plaintiff sustained cervical and lumbar muscle strains, but there was no
evidence of trauma directly caused by the collision. Dr. Leddy’s Report at 5. According
to Dr. Leddy, the evidence established degenerative disease not causally related to the
collision and which took years to develop prior to the collision. Id. Dr. Leddy further
determined that Plaintiff’s physical examination revealed no evidence of cervical or
lumbar muscle spasm, spinal or extremity muscle atrophy, nerve root impingement,
radiculopathy, or neurological deficit, such that the objective medical evidence
established Plaintiff had recovered from the cervical and lumbar muscle strains, which
injuries are not serious, resolving with time and conservative treatment. Id. at 5-6.
In a May 25, 2016 addendum to Dr. Leddy’s Report, Defendant’s Exh. P (Dkt.4314 at 2-4) (“Dr. Leddy’s Addendum”), Dr. Leddy, based on a review of Plaintiff’s
deposition transcript and additional medical records and diagnostic studies, observed
Plaintiff testified at her deposition that she then had good days and bad days with
12
regard to her complaints of numbing, sciatica, neck discomfort and frequent headaches,
reported standing was possible but uncomfortable, Plaintiff was working and not taking
any medications nor otherwise treating for her current symptoms other than massage
therapy 2 to 3 times a week, and Plaintiff’s wrist felt “okay” except for “a little pain when
the weather changes.” Dr. Leddy’s Addendum at 2. Dr. Leddy noted that on July 17,
2013, Plaintiff underwent an independent medical examination by Dr. Luzi who
diagnosed cervical and lumbar strain and sprain attributed to the collision, and multiple
level degenerative disc disease pre-existing the collision, finding Plaintiff “was
symptomatic to a very minimal degree.” Id. at 3. Dr. Leddy also commended on
Plaintiff’s January 22, 2014, independent chiropractic examination by Dr. Marconi who
diagnosed resolved cervical and lumbar sprain and strain from the collision, determining
Plaintiff “was not disabled in any way and that she could do her normal and customary
work duties as a substitute teacher.” Id. After reviewing this additional evidence, Dr.
Leddy’s opinion was reinforced that Plaintiff sustained cervical and lumbar muscle
strains but no trauma as a result of the collision, that the cervical degenerative disease
was not causally related to the collision, and Plaintiff’s spinal muscle strain had resolved
with Plaintiff returning to her functional level prior to the collision, and her prognosis
continued to be “good.” Id.
On November 21, 2016, Plaintiff, who had returned to work as a substitute
teacher with the Buffalo Public School District, slipped and fell at work. Plaintiff
maintains the fall aggravated her previous injuries which Plaintiff claims were caused by
the May 7, 2013 collision.
13
On January 27, 2017, Plaintiff belatedly provided Defendant with reports from
treating sources whom Plaintiff seeks to have treated as her expert witnesses. These
sources include orthopedists Drs. Simmons and Tetro, and chiropractor Dr. Horvath.
DISCUSSION
1.
Motion to Extend Time for Discovery
Included in her papers opposing Defendant’s Motion for summary judgment is
Plaintiff’s cross-motion to extend the discovery deadline to permit Plaintiff to serve
expert witness disclosures for three treating sources including orthopedists Dr. Tetro
and Dr. Simmons, and chiropractor Dr. Horvath (“the putative expert witnesses”).
McGillicuddy Affidavit ¶¶ 8-9. Defendant argues in opposition that Plaintiff’s belated
request essentially seeks to reopen discovery more than seven months after it closed,
that the request is beyond a procedural matter and cannot be attributed to excusable
neglect, and that granting Plaintiff’s request would result in significant prejudice to
Defendant, including requiring Defendant to take additional discovery after filing its
dispositive summary judgment motion. Defendant’s Response at 2. In further support
of the motion, Plaintiff maintains the requested retroactive extension of time to serve
expert disclosures for the three putative expert witnesses will not result in any prejudice
because Defendant is already aware of the identities of, and in possession of all
relevant treatment records for, the putative expert witnesses such that Defendant
cannot dispute already being apprised, prior to moving for summary judgment, of the
subject matter, including the facts and opinions, on which the putative expert witnesses
are expected to present evidence. Plaintiff’s Reply at 1-2. Plaintiff further maintains
14
despite failing to timely serve expert disclosures, Second Circuit case law supports
permitting the putative expert witnesses to testify as to opinions, formed during
treatment, regarding causation, severity, disability, permanency, and future impairment,
id. at 3-5, such that it was Defendant’s prerogative to depose such treating sources and
Defendant cannot characterize its own failure to do so as prejudice. Id. at 5-7. In
further opposition, Defendant maintains the cases on which Plaintiff relies are
inapposite and pre-date the current version of Fed. R. Civ. P. 26(a)(2)(C) (“Rule
26(a)(2)(C)”), such that Plaintiff’s failure to provide the required Rule 26(a)(2)(C)
disclosure requires treating the putative expert witnesses’ testimony as fact witnesses,
for which testimony is limited to issues of care and treatment, and no opinions as to
causation and prognosis. Defendant’s Sur-Reply at 2-6.
The Third Amended Scheduling Order filed April 11, 2016 (Dkt. 34) (“Third
Amended Scheduling Order”), set June 8, 2016 as the deadline for Plaintiff to identify
expert witnesses and provide reports, Third Amended Scheduling Order ¶ 3, November
8, 2016 for filing dispositive motions, id. ¶ 4, and December 6, 2016 as the mediation
cut-off, specifically providing that “[t]he continuation of mediation sessions shall not
delay or defer other dates set forth in this Scheduling Order.” Id. ¶ 5. By e-mail dated
September 28, 2016 (“September 28, 2016 e-mail”),5 AUSA Mitchell advised
McGillicuddy and the mediator, Michael Menard, Esq. (“Menard”), of Defendant’s
intention to file a dispositive motion, requesting postponing mediation scheduled for
October 11, 2016, until after the dispositive motion was filed. According to a Mediation
Certificate filed October 4, 2016 (Dkt. 36), further mediation was scheduled for
5
Plaintiff’s Exh. J (Dkt. 47-11 at 12 (repeated at, inter alia, Dkt. 47-11 at 17, 20, 23)).
15
November 14, 2016. On October 28, 2016, Defendant moved to extend by 45 days the
deadline for filing dispositive motions (Dkt. 37), which motion was granted by the
undersigned with the Fourth Amended Scheduling Order (Dkt. 38), filed October 31,
2016, setting December 23, 2016 as the deadline for filing dispositive motions, but not
extending the deadline for expert witness discovery. In a Mediation Certificate filed
November 9, 2016 (Dkt. 39), Menard indicated the case had not settled, but the parties
may schedule another mediation session at a later date. No further mediation has been
scheduled.
According to Plaintiff, despite listing the three putative expert witnesses as
witnesses Plaintiff intended to call at trial in her response to Defendant’s First Set of
Interrogatories,6 dated March 24, 2015, well within the timeframe for doing so set by the
Third Amended Scheduling Order, McGillicuddy Affidavit ¶¶ 7, 22, Plaintiff neither
timely identified the putative expert witnesses as such, nor provided reports from the
treating doctors, attributing the failure to do so to anticipated mediation, a possible
aggravation of Plaintiff’s alleged low-back injury by an unrelated slip-and-fall incident on
December 12, 2016, and lack of familiarity with federal practice. Id. ¶¶ 23-35. On
January 23, 2017, after the instant motion had been filed, Plaintiff, realizing the
oversight, inquired whether Defendant’s counsel objected to expert witness disclosure
after the June 28, 2016 expert discovery deadline, maintaining Defendant’s counsel was
not opposed so long as the information was from treating sources and not from outside
experts specifically retained for litigation. Id. ¶ 36. Based on this purported
conversation Plaintiff, on January 27, 2017, served on Defendant Rule 26 expert
6
Plaintiff’s Exh. E (Dkt. 47-6).
16
disclosures for the three putative expert witnesses, and requested by e-mail to the
undersigned an extension of the expert disclosure deadline.7 Id. ¶¶ 37-38. Upon
receiving the belated expert discovery, AUSA Mitchell spoke with McGillicuddy on
February 6, 2017, advising Defendant did not object to extending Plaintiff’s time to
respond in opposition to Defendant’s pending summary judgment motion to March 17,
2017, but did object to any request to extending Plaintiff’s time to provide expert
disclosures which, per the Third Scheduling Order, was due by June 28, 2016, asserting
its receipt on January 27, 2017 was both untimely and prejudicial. See Plaintiff’s Exh. J
(Dkt. 47-11 at 5) (AUSA Mitchell’s February 6, 2017 e-mail to chambers and
McGillicuddy memorializing conversation with McGillicuddy). Later on February 6,
2017, McGillicuddy stated in an email to chambers and Mitchell that if necessary,
Plaintiff was prepared to move to extend the deadline for expert discovery, asserting
that the action was scheduled for continued mediation in October 2016, when Mitchell
agreed to accept expert declarations for all three expert treating sources provided
Plaintiff forward all medical records, which Plaintiff had since done, and on which
records Defendant relies in support of summary judgment, thus undermining any
prejudice asserted by Defendant based on the late disclosure. Id.
Pursuant to Rule 26(a)(2)(A), any witness expected to present evidence as an
expert under Fed.R.Evid. Rules 702, 703, or 705, must be identified. Absent stipulation
or court order to the contrary, such disclosure “must be accompanied by a written report
– prepare and signed by the witness – if the witness is one retained or specially
7
Although Plaintiff’s Notice of Rule 26(a)(2)(C) Expert Disclosure is incorrectly dated January 27, 2016,
Plaintiff’s Exh. I (Dkt. 47-10), at 10, the accompanying Certificate of Service, id. at 11, shows the correct
date of January 27, 2017, which Plaintiff does not dispute.
17
employed to provide expert testimony in the case or one whose duties as the party’s
employee regularly involve giving expert testimony. Fed.R.Civ.P. 26(a)(2)(B) (“Rule
26(a)(2)(B)”). The “written report” must contain six different types of information,
including
(i) a complete statement of all opinions the witness will express and the basis
and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness’s qualifications, including a list of all publications authored in the
previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness
testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the
case.
Fed.R.Civ.P. 26(a)(2)(B).
Here, Plaintiff maintains that because none of the three treating medical sources
belatedly identified as expert witnesses was “retained or specifically employed to
provide expert testimony in the case,” the disclosure of such witnesses’ identities was
not required to be accompanied by the written report; rather, pursuant to Rule
26(a)(2)(C), the disclosure only need state
(i) the subject matter on which the witness is expected to present evidence under
Federal Rule of Evidence 702, 703, or 705; and
(ii) a summary of the facts and opinions to which the witness is expected to
testify.
Fed.R.Civ.P. 26(a)(2)(C) (italics added).
Rule 26(a)(2)(C) was added to the Federal Rules of Civil Procedure in 2010, with the
relevant Advisory Committee Notes specifying that “a witness who is not required to
provide a report under Rule 26(a)(2)(B) may both testify as a fact witness and also
provide expert testimony under Evidence Rules 702, 703, or 705. Frequent examples
18
include physicians or other health care professionals and employees of a party who do
not regularly provide expert testimony.” Fed.R.Civ.P. 26(a)(2)(C) advisory committee’s
note to 2010 amendment.
Prior to the addition of Rule 26(a)(2)(C), a treating physician, although not
required to provide expert reports complying with Rule 26(a)(2)(B), was permitted to
opine only as to “diagnosis, treatment, prognosis and causation, but solely as to the
information . . . acquired through observation of the [p]laintiff . . . as a treating physician
limited to the facts in the [p]laintiff’s course of treatment,” Barack v. American Honda
Motor Co., Inc., 293 F.R.D. 106, 109 (D.Conn. 2013) (quoting Spencer v. Int’l Shoppes,
Inc., 2011 WL 4383046, at *2 (E.D.N.Y. Sept. 20, 2011) (italics in original)), but was
restricted from testifying on information acquired from outside sources. Franz v. New
England Disposal Techs., Inc., 2011 WL 5443856, at *2 (W.D.N.Y. Nov. 9, 2011). This
restriction was based on the fact that prior identification of the treating physician, as
required by Rule 26(a)(2)(A), along with the defendant’s receipt of the plaintiff’s medical
records, would provide the defendant with sufficient notice of the basis and scope of the
treating physician’s anticipated expert testimony, such that treating physicians were not
required to comply with the expert witness report requirements of Rule 26(a)(2)(B), yet
the medical records would not necessarily contain information the treating physician
may have acquired through outside sources, creating the possibility of unfair surprise
and delay. Geary v. Fancy, 2016 WL 1252768, at * 2 (W.D.N.Y. Mar. 31, 2016).
Furthermore, it is undisputed that treating physicians are to be considered as experts for
purposes of Fed.R.Evid. 702, 703, and 705. Id. 2016 WL 1252768, at * 3 (citations
omitted). “Thus, under Rule 26(a)(2)(C), a treating physician is an expert who may
19
testify regarding the treatment of plaintiff including the physician’s diagnosis of plaintiff’s
injuries, causation and prognosis, i.e., the permanency of a plaintiff’s injuries or their
effects, provided the disclosure required by Rule 26(a)(2)(C) has been served on
defendant.” Id. (italics added) (citing cases). Even if the required summary report is
timely provided, a treating physician’s testimony based on information acquired from
outside sources is permitted “provided the basis for the testimony is within Rule
26(a)(2)(C)’s required summary report, and such disclosure complies with Rule
26(a)(2)(C).” Id.
Although Plaintiff couches her argument in support of extending the deadline for
expert disclosure in terms of avoiding under Fed.R.Civ.P. 37 (“Rule 37), the sanction of
having Plaintiff’s expert evidence excluded for failing to comply with discovery, Plaintiff’s
Memorandum at 2-7, Plaintiff’s request to extend the time for expert disclosures is
properly analyzed pursuant to Fed.R.Civ.P. 6(b)(1)(B), which permits the court, for good
cause, to extend a party’s time to act after the relevant deadline has passed, only upon
a showing of excusable neglect. See LoSacco v. City of Middletown, 71 F.3d 88, 93 (2d
Cir. 1995) (“district courts may grant extensions of time in purely procedural matters like
these upon a showing of ‘excusable neglect.’”). “‘[E]xcusable neglect’ under Rule 6(b)
is a somewhat ‘elastic concept’ and is not limited strictly to omissions caused by
circumstances beyond the control of movant.’” Id. (quoting Pioneer Inv. Services Co. v.
Brunswick Associates Ltd. Partnership, 507 U.S. 380, 391 (1993)). The requisite
factors to be considered in determining whether to find excusable neglect to extend a
scheduling order under Rule 6(b) include “[1] the danger of prejudice to the [nonmovant], [2] the length of the delay and its potential impact on judicial proceedings, [3]
20
the reason for the delay, including whether it was within the reasonable control of the
movant, and [4] whether the movant acted in good faith.” Pioneer Inv. Servs. Co., 507
U.S. at 388, 394-95. See LoSacco, 71 F.3d at 88 (the concept of excusable neglect
“may encompass delays ‘caused by inadvertence, mistake or carelessness, at least
when the delay was not long, there is no bad faith, there is no prejudice to the opposing
party, and movant’s excuse has some merit.’”). The Second Circuit has focused on the
third factor, i.e., the reason for the delay. Silivanch v. Celebrity Cruises, Inc., 333 F.3d
355, 366 (2d Cir. 2003) (citing Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d
248, 250-51 (2d Cir. 1997) (“We have noted that the equities will rarely if ever favor a
party who ‘fail[s] to follow the clear dictates of a court rule’ and held that where ‘the rule
is entirely clear, we continue to expect that a party claiming excusable neglect will, in
the ordinary course, lose under the Pioneer test.’”)). Further, “ignorance of the rules, or
mistakes construing the rules do not usually constitute ‘excusable’ neglect. . . .” Pioneer
Inv. Servs. Co., 507 U.S. at 386. In the instant case, none of the factors favors
extending the deadline to accommodate Plaintiff’s belated expert disclosures.
Specifically, the first factor concerning prejudice to the non-movant weighs
against permitting Plaintiff’s belated expert disclosures given that Plaintiff did not
disclose her expert evidence until January 27, 2017, seven months after the expert
witness disclosure deadline and one month after Defendant moved for summary
judgment, and then waited almost another two months before moving for an extension
of time permitting the belated expert disclosure. As Defendant maintains, Defendant’s
Response at 5-6; Mitchell Response Affidavit ¶ 16; Roach Affidavit ¶ 15, Defendants’
summary judgment motion was prepared based on a record that did not include
21
Plaintiff’s proposed expert disclosures such that the considerable time and resources
Defendant expended preparing the instant summary judgment motion was without
benefit of the disclosures which include medical opinions as to the causation and
permanency of Plaintiff’s injuries, not found in the related treatment records previously
disclosed in discovery. As such, not only did Defendant not have the benefit of
complete medical records and summary reports from the putative expert witnesses
when preparing the summary judgment motion, but Plaintiff, in preparing her opposition
to summary judgment, was able to “design” her expert disclosures to “fill in the gaps”
and thereby defeat Defendant’s Motion. Defendant’s Response at 12-13; Mitchell
Response Affidavit ¶ 17; Roach Affidavit ¶ 16. Defendant further maintains that should
the court grant Plaintiff’s motion, Defendant should be permitted to reopen discovery so
as to depose the putative expert witnesses and to resubmit the summary judgment
motion, requiring additional time and delay. Mitchell Response Affidavit ¶ 18; Roach
Affidavit ¶ 17. Plaintiff maintains that because Defendant has been in receipt of all
treatment records for the putative expert witnesses since prior to moving for summary
judgment, Defendant essentially has all the information required by Rule 26(a)(2)(C),
and Defendant could have chosen to depose the putative expert witnesses, such that
allowing the late submission of the expert opinions will not result in any significant
prejudice to Defendant. Plaintiff’s Reply at 2-3. In further opposition to Plaintiff’s
Motion, Defendant argues not only do the medical records of Plaintiff’s putative expert
witnesses fall short of the required disclosure under Rule 26(a)(2)(C), but Plaintiff’s
failure to provide Rule 26(a)(2)(C)’s required summary report requires limiting any
testimony from such medical providers to care and treatment as fact witnesses, and
22
does not permit such witnesses to testify as to causation and permanency. Defendant’s
Sur-Reply at 4-6. Defendant further maintains the cases on which Plaintiff’s relies in
support of her motion are inapposite. Id.
In support of her motion, Plaintiff relies on Geary v. Fancy, 2016 WL 1252768
(W.D.N.Y. Mar. 31, 2016), Maxwell v. Becker, 2015 WL 4872137 (W.D.N.Y. Aug. 13,
2015), Zanowic v. Ashcroft, 2002 WL 373229 (S.D.N.Y. Mar. 8, 2002), and Manganiello
v. Agostini, 2008 WL 5159776 (S.D.N.Y. Dec. 9, 2008), none of which supports
Plaintiff’s argument. In particular, in Geary, this court observed that a treating physician
may, pursuant to Fed.R.Civ.P. 26(a)(2)(B), both testify as a fact witness and provide
expert testimony under Federal Rules of Evidence 702, 703, or 705, Geary, 2016 WL
1252768, at * 2, “provided the disclosure required by Rule 26(a)(2)(C) has been served
on the defendant.” Geary, 2016 WL 1252768, at 3. Significantly, in Geary, the initial
report required by Fed.R.Civ.P. 26(a)(2)(C), detailing the treating physician’s treatment,
prognosis, and opinion as to causation was timely provided, id. at * 1 (establishing
treating physician’s expert disclosure, including identity, and statement describing
plaintiff’s injuries, permanency of such injuries, and opinion as to causation, were timely
made), as was a supplemental report. Id. at 4 (finding treating physician’s supplemental
expert report, although filed four days after the expert witness disclosure cut-off, was
nevertheless acceptable because supplementation was required by Fed.R.Civ.P.
26(a)(2)(E)). Because the basis for the treating physician’s testimony was within the
summary report provided in accordance with Rule 26(a)(2)(C), the treating physician’s
testimony was not to be limited to plaintiff’s treatment. Id. In contrast, in the instant
case, Plaintiff merely identified, in response to Defendant’s interrogatories, her treating
23
orthopedists and chiropractor, but did not provide any report indicating their opinions as
to the likely permanency of Plaintiff’s injuries, or causation. The significant factual
distinctions between Geary and the instant case establishes that Geary provides no
support for Plaintiff’s position.
Similarly, in Maxwell, the plaintiff identified as experts eleven treating physicians,
each of whom was expected to testify as to care and treatment provided, as well as
causation, and provided from each a summary report in compliance with Rule
26(a)(2)(C). Maxwell, 2015 WL 4872137, at * 3. The plaintiff, however, was not
permitted to have another physician testify as a retained expert based on the plaintiff’s
failure to provide for such physician a summary report complying with Rule 26(a)(2)(B)’s
additional criteria. Id. at * 4. Accordingly, Maxwell also fails to support Plaintiff’s
position.
Furthermore, although in both Zanowic and Manganiello, the plaintiffs’ respective
treating physicians were permitted to testify at trial as to care, treatment, causation and
prognosis, Zanowic, 2002 WL 373229, at *2-3; Manganiello, 2008 WL 5159776, at *12,
both cases pre-date the 2010 amendment adding Rule 26(a)(2)(C) requiring disclosure
of the subject matter, and a summary of the facts and opinions on which the putative
expert witness is expected to present evidence and testify. Accordingly, neither
Zanowic nor Manganiello provides any support for Plaintiff’s argument.
Moreover, Defendant argues, Defendant’s Response at 12-13, the proffered
expert opinions are inconsistent with the relevant treatment records Plaintiff timely
provided and on which Defendant’s expert, Dr. Leddy, based his expert report, resulting
in prejudice to Defendant based on the lack of opportunity to depose the putative
24
experts regarding the inconsistencies. Significantly, a treating medical doctor’s
testimony must be limited to that supported by the disclosed medical records. See
McEachron v. Glans, 1999 WL 33597331, at * 4 (N.D.N.Y. Feb. 24, 1999) (precluding
plaintiff’s treating physician from testifying as to life expectancy and conscious pain and
suffering where the medical records provided by the physician contained no references
to observations of life expectancy and conscious pain and suffering). Specifically, Dr.
Leddy references orthopedist Dr. Simmons’s August 6, 2013 examination for which Dr.
Simmons fails to include in the relevant treatment records any assertion as to the
permanency of Plaintiff’s injuries attributed to the May 7, 2013 collision. Dr. Leddy’s
Report at 5. Nor do any of Dr. Simmons’s other medical treatment records, Defendant’s
Exh. O (Dkt. 47-16 at 22-97) (“Dr. Simmons’s Medical Records”), showing Dr. Simmons
treated Plaintiff on August 6, 2013, Dr. Simmons’s Medical Records at 23-25, December
2, 2013 (id. at 47-49), and December 19, 2013 (id. at 58-59), indicate that Plaintiff’s
injuries are permanent. In contrast, in his summary report, Defendant’s Exh. O (Dkt. 4716) at 2-9 (“Dr. Simmons’s Report”), Dr. Simmons opines Plaintiff’s injuries are
permanent. Dr. Simmons’s Report ¶ 21. Not only was Defendant, when moving for
summary judgment, without the benefit of Dr. Simmons’s opinion that Plaintiff’s injuries
were permanent, but it is not clear the extent to which such opinion is premised on the
injuries sustained during the May 7, 2013 collision, compared to the injuries Plaintiff
sustained in a work-related injury on November 21, 2016, following which Plaintiff
returned to Dr. Simmons on December 12, 2016 (id. at 50-53; corrected at id. at 60-63),
and February 22, 2017 (id. at 54-57). Nor does Dr. Leddy comment on the
transforaminal epidural injection Dr. Simmons administered at L4-L5 of Plaintiff’s lumbar
25
spine at the December 19, 2013 visit, and which Dr. Simmons avers was medically
necessary based on the injuries Plaintiff sustained as a result of the collision. Dr.
Simmons’s Report ¶¶ 15-17. Although Dr. Simmons continues that “[t]he injection may
have improved her symptoms, but it could not heal the underlying cause,” id. ¶ 17,
Plaintiff did not return to Dr. Simmons until December 12, 2016, after the November 21,
2016 work accident which allegedly exacerbated Plaintiff’s existing lower back injury
and difficulties with her lower extremities. Id. ¶ 18. Insofar as Dr. Simmons opines
Plaintiff’s injuries caused by the May 7, 2013 collision predisposed Plaintiff to further
injury when she slipped and fell on November 21, 2016, Dr. Leddy did not have access
to this information. Nor in any of the treatment records is the method Dr. Simmons used
to discern the asserted ROM of motion deficits identified, yet Dr. Simmons states that
he used anatomical landmarks and “objective methods.”8 Id. ¶ 6.
Similarly, Dr. Leddy observed that orthopedist Dr. Tetro treated Plaintiff for left
wrist pain Plaintiff had since the May 7, 2013 collision, for which Dr. Tetro prescribed a
brace and an MRI, Dr. Leddy’s Report at 4, the results of which showed some swelling
of the dorsum of the left wrist possibly representative of small ganglion cysts, but no
evidence of traumatic tendinitis, traumatic ligament tear, or fracture. Id. at 3. Dr. Leddy
comments that Dr. Tetro’s medical records that had been timely provided to Defendant
indicate that on August 14, 2013, Plaintiff received from Dr. Tetro a corticosteroid
injection in her left wrist, id. at 6-10, and on September 27, 2013, Plaintiff reported “near
complete relief of her left wrist pain following a corticosteroid injection,” id. at 2, was
8
The court notes, as discussed below, Discussion, infra, at 45-47, objective medical testing, including use
of a goniometer or inclinometer to measure ROM, as well as indicating whether the chosen methodology
consisted of active or passive ROM tests, is required to establish a serious injury under New York’s NoFault Law.
26
asymptomatic, and had returned to work. Id. at 2, 4. Plaintiff did not seek further
treatment from Dr. Tetro. Although in Dr. Tetro’s medical records, Plaintiff’s Exh. Q
(Dkt. 48 at 19-34) (“Dr. Tetro’s Medical Records”), the manner by which Dr. Tetro
determined the deficits in Plaintiff’s left wrist ROM is not revealed, Dr. Tetro explains in
his proffered expert opinion (Dkt. 48 at 2-7) (“Dr. Tetro’s Report”), that he used a
goniometer obtain such deficits. Dr. Tetro’s Report ¶ 4. Defendant, however, did not
have the opportunity to investigate this belated assertion that is not supported by Dr.
Tetro’s medical records.
Finally, Plaintiff’s treating chiropractor, Dr. Horvath, opines that Plaintiff “endured
a permanent consequential limitation of a body organ member function or system; and a
medically determined injury or impairment which prevented her from performing
substantially all of the material acts which constituted her usual and customary daily
activities for not less than 90 days during the 180 days following date of incident.”
Affidavit of Treating Chiropractor, Plaintiff’s Exh. P (Dkt. 47-17 at 2-8) (“Dr. Horvath’s
Report”)), ¶ 20. Careful review of Dr. Horvath’s treatment records, Plaintiff’s Exh. P
(Dkt. 47-17 at 14-65) (“Dr. Horvath’s Medical Records”), do not support this opinion;
rather, Dr. Horvath’s Medical Records are devoid of any mention as to permanency of
Plaintiff’s claimed injuries, and, in fact, are contrary to the assertion that Plaintiff was, for
90 out of the 180 days immediately following the May 7, 2013 collision, unable to
perform substantially all the material acts constituting Plaintiff’s usual and customary
daily activities. See Dr. Horvath’s Medical Records at 19 (Roland Morris Disability Index
completed on May 14, 2013, for which Plaintiff’s responses indicate that despite her
back injury, she is able to perform some of her usual household tasks, does not try to
27
get other people to do things for her, her back injury does not cause Plaintiff to walk or
ascend stairs at a slower than usual pace, nor does Plaintiff stay in bed most of the time
because of her back). Dr. Horvath also inconsistently opines that he last treated
Plaintiff on April 1, 2015, yet Plaintiff’s cervical and lumbar spine condition generally
worsened when Plaintiff did not receive chiropractic treatment. Dr. Horvath’s Report ¶
9. Although Dr. Horvath reports ROM measurements taken at a July 14, 2014
reevaluation were obtained using an inclinometer, id. ¶ 12, Dr. Horvath’s Medical
Records do not indicate use of an inclinometer on that date, nor is the manner by which
ROM measurements were obtained indicated elsewhere within the relevant medical
records for any treatment date. Accordingly, as Defendant asserts, Dr. Horvath’s
Report regarding the severity of Plaintiff’s injuries is inconsistent with Dr. Horvath’s
Medical Records and without timely disclosure, Defendant was denied the opportunity
to depose Dr. Horvath regarding the inconsistencies.
That Defendant was without the putative experts’ summary reports required by
Rule 26(a)(2)(C) for Plaintiff’s putative expert witnesses, and because the summary
reports are not supported by the treatment records for the same medical sources,
permitting Plaintiff to belatedly disclose expert reports, after Defendant’s time to depose
and after Defendant has filed for summary judgment, would result in prejudice to
Defendant. This first factor thus favors Defendant.
As to the second factor regarding the length of the delay and its potential impact
on judicial proceedings, Plaintiff does not dispute that the putative expert witness
disclosures on January 27, 2017, occurred seven months after the expert witness
disclosure deadline, with the filing of the instant motion on March 17, 2017, occurring
28
more than nine months after said deadline. Plaintiff does not argue that the length of
this delay is not significant. That Defendant had already moved for summary judgment
before Plaintiff identified the putative expert witnesses as such and provided their
reports in which, for the first time, the witnesses opine beyond care and treatment,
supports Defendant’s argument that permitting the belated expert disclosures will
require Defendant to seek an opportunity to depose the three putative expert witnesses,
leading to additional delay as Defendant then will need to amend the summary
judgment motion. Defendant’s Response at 10-11. Accordingly, the record establishes
that the length of the delay and its impact on the litigation is significant such that the
second factor weighs against a finding of excusable neglect.
With regard to the third factor, Plaintiff attributes the delay to anticipation that the
case may settle, Plaintiff’s Memorandum at 6-7, McGillicuddy Affidavit ¶¶ 24-30, and
lack of familiarity with federal practice. McGillicuddy Affidavit ¶¶ 30-31. Plaintiff’s
asserted anticipation of settlement, which would moot the need for any disclosure,
including expert disclosure, is flatly disputed by Defendant. Defendant’s Response at 34 (maintaining the parties have not engaged in any settlement discussions since the
initial mediation session in January 2015, and during an October 3, 2016 telephone
conversation, Plaintiff was advised of Defendant’s plan to file a dispositive motion such
that Plaintiff was on notice Defendant “was not then interested in seriously exploring
mediation while a dispositive motion was pending.”). Regardless of the veracity of
Plaintiff’s assertion, it is settled that ongoing settlement negotiations do not obviate the
need to follow the scheduling order. See Arnold v. Krause, Inc., 232 F.R.D. 58, 65-66
(W.D.N.Y. 2004) (finding no good cause existed for modifying deadline for discovery
29
based on plaintiff’s unwarranted belief that settlement was likely and obviated need to
provide expert disclosure for which the plaintiff’s request to extend was denied),
affirmed, 233 F.R.D. 126 (W.D.N.Y. 2005). Significantly, each of the court’s Scheduling
Orders provided “[t]he continuation of mediation sessions shall not delay or defer other
dates set forth in this Scheduling Order.” See November 12, 2014 Scheduling Order
(Dkt. 12), ¶ 11; First Amended Scheduling Order (Dkt. 26), ¶ 11; Second Amended
Scheduling Order (Dkt. 29), ¶ 5; Third Amended Scheduling Order (Dkt. 34), ¶ 5; and
Fourth Amended Scheduling Order (Dkt. 38), ¶ 3. As to Plaintiff’s attributing the reason
for the delay on lack of familiarity with federal practice, McGillicuddy Affidavit ¶¶ 30-31,
“ignorance of the rules, or mistakes construing the rules do not usually constitute
‘excusable’ neglect. . . .” Pioneer Inv. Servs. Co., 507 U.S. at 392. Nor does Plaintiff
dispute that familiarity with federal practice was within Plaintiff’s reasonable control. Id.
Accordingly, the third factor, on which the most weight is placed, Silivanch, 333 F.3d at
366, weighs heavily in Defendant’s favor.
With regard to the fourth factor for excusable neglect, i.e., the movant’s good
faith, the e-mails exchanged between attorneys for Plaintiff and Defendant, and
forwarded to the undersigned, reveal no dispute as to whether Defendant agreed in
October 2016, four months after the latest expert disclosure cut-off, to accept Plaintiff’s
provision of expert reports after Defendant moved for summary judgment. See,
generally, Plaintiff’s Exh. J (Dkt. 47-11). Significantly, Plaintiff’s assertion in the
February 6, 2017 e-mail that Defendant had agreed in October 2016 to accept late
expert disclosure “on the contingency that [Paintiff] forward all recent medical records. .
. .” id. at 3, both ignores that the parties could not, after the expiration of the expert
30
discovery deadline in June 2016, stipulate to its extension, Fed.R.Civ.P. 6(b)(1)(B)
(requiring a court order to extend a deadline after its expiration), and treats as a
bargaining tool Plaintiff’s provision of supplemental discovery which is required under
Fed.R.Civ.P. 26(e) (providing that any party who has made a disclosure under Rule
26(a), including both general and expert disclosures, is required to supplement or
correct any such disclosure in a timely manner or as ordered by the court). Accordingly,
the fourth factor for excusable neglect, i.e., whether Plaintiff acted in good faith in
moving to extend the deadline for expert disclosures, also weighs against Plaintiff.
Because all four factors weigh against a finding of excusable neglect, Plaintiff’s motion
is DENIED.
Accordingly, as a consequence of Plaintiff’s failure to timely produce the
summary reports for Drs. Simmons, Tetro, and Horvath, such witnesses may not testify
as experts and their Fed.R.Civ.P. 26(a)(2)(C) summary reports, untimely submitted, are
stricken from the record. Drs. Simmons, Tetro, and Horvath are restricted to testifying
solely as fact witnesses, in which capacity they are “precluded from rendering opinion
based upon information obtained outside the course of treatment and beyond the
reasonable reading of the providers’ medical records.” Franz, 2011 WL 5443856, at * 2.
In other words, Drs. Simmons, Tetro, and Horvath may opine as to the cause of
Plaintiff’s medical condition, her prognosis, and the extent of any disability caused by
the alleged injuries, so long as those opinions are based upon each respective doctor’s
medical care and treatment of Plaintiff, but may not offer opinions not gleaned from
personal diagnosis and treatment of Plaintiff. Id.
31
2.
Summary Judgment
Summary judgment of a claim or defense will be granted when a moving party
demonstrates that there are no genuine issues as to any material fact and that a moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) and (b); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250-51 (1986); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.
2003). The court is required to construe the evidence in the light most favorable to the
non-moving party. Collazo v. Pagano, 656 F.3d 131, 134 (2d Cir. 2011). The party
moving for summary judgment bears the burden of establishing the nonexistence of any
genuine issue of material fact and if there is any evidence in the record based upon any
source from which a reasonable inference in the non-moving party's favor may be
drawn, a moving party cannot obtain a summary judgment. Celotex, 477 U.S. at 322;
see Anderson, 477 U.S. at 247-48 (“summary judgment will not lie if the dispute about a
material fact is "genuine," that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).
“[T]he evidentiary burdens that the respective parties will bear at trial guide
district courts in their determination of summary judgment motions.” Brady v. Town of
Colchester, 863 F.2d 205, 211 (2d Cir. 1988)). A defendant is entitled to summary
judgment where “‘the plaintiff has failed to come forth with evidence sufficient to permit
a reasonable juror to return a verdict in his or her favor on’” an essential element of a
claim on which the plaintiff bears the burden of proof. In re Omnicom Group, Inc., Sec.
Litig., 597 F.3d 501, 509 (2d Cir. 2010) (quoting Burke v. Jacoby, 981 F.2d 1372, 1379
(2d Cir. 1992)). Once a party moving for summary judgment has made a properly
32
supported showing of the absence of any genuine issue as to all material facts, the
nonmoving party must, to defeat summary judgment, come forward with evidence that
would be sufficient to support a jury verdict in its favor. Goenaga v. March of Dimes
Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). “An issue of fact is genuine
and material if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Cross Commerce Media, Inc. v. Collective, Inc., 841 F.3d 155, 162
(2d Cir. 2016) (citing SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133,137 (2d Cir.
2009)). “Assessments of credibility and choices between conflicting versions of the
events are matters for the jury, not for the court on summary judgment.” Rule v. Brine,
Inc., 85 F.3d 1002, 1011 (2d Cir. 1996).
Plaintiff’s claims are brought under the Federal Tort Claims Act (“FTCA”),
pursuant to which the federal government waives its sovereign immunity to suits for the
negligent acts of its employees in “circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of the place where
the act or omission occurred.” 28 U.S.C. § 1346(b)(1). As such, Plaintiff’s claims are
subject to New York substantive law, see Brutton v. United States, 687 Fed.Appx. 56,
57 (2d Cir. Apr. 14, 2017) (summary order) (“New York law applies to the state tort
claims against [the private defendant] as well as to the FTCA claims against the United
States.”), and no party argues otherwise.
In support of summary judgment, Defendant does not address the issue of
liability for the collision, arguing instead that Plaintiff is barred from recovering (1)
pecuniary damages because Plaintiff did not incur more than $ 50,000 in basic
economic losses, Defendant’s Memorandum at 5-6; (2) non-economic losses because
33
she did not sustain a “serious injury” as defined under N.Y. Ins. Law § 5102(d) (“§
5102(d)”), id. at 7-10; and (3) non-economic losses for injuries not causally-related to
the collision. Id. at 10-12. Defendant further maintains Plaintiff’s injuries do not meet §
5102(d)’s criteria for serious injury under the three categories identified by Plaintiff. Id.
at 13-22. In opposing summary judgment, Plaintiff argues the evidence in the record,
including the reports of Drs. Simmons, Tetro, and Horvath, establishes Plaintiff
sustained serious injuries under § 5102(d), Plaintiff’s Memorandum at 7-14, under the
significant limitation of use category, which can be substantiated through both
quantitative and qualitative assessments, id. at 14-19, the permanent consequential
limitation of use category, id. at 20-21, and the so-called “90/180” category. Id. at 2125. In further support of summary judgment, Defendant asserts that absent Plaintiff’s
proposed expert disclosures, which the court has stricken, the evidence before the court
establishes Defendant is entitled to summary judgment as a matter of law, Defendant’s
Reply at 1-2, Plaintiff’s opposition to summary judgment fails to respond to each
paragraph of Defendant’s Statement of Facts, requiring such statements be deemed
admitted, id. at 2-3, the medical records produced during discovery fail to adequately
described the manner by which Plaintiff’s alleged ROM deficits were determined, id. at
3, or to establish recent examination as required to support a claim of permanency, id.
at 4-5, and insofar as Plaintiff relies on unsworn medical treatment records, such
records submitted in opposing summary judgment constitute inadmissible evidence that
may not be considered. Id. at 4-5.
34
A.
Local Rule 56(a)
Preliminarily, the court addresses Plaintiff’s failure to fully comply with Local Rule
of Civil Procedure 56(a) (“Local Rule 56(a)”), requiring a party opposing summary
judgment to separately respond to each paragraph of Defendant’s Statement of Facts
offered in support of summary judgment. According to Defendant, Plaintiff’s failure to
do so requires deeming admitted those facts to which Plaintiff has not sufficiently
responded. Defendant’s Reply at 2-3. Plaintiff does not dispute this assertion.
Pursuant to Local Rule 46(a)(1), a summary judgment motion filed under Fed.R.Civ.P.
56 must be accompanied by
a separate, short, and concise statement, in numbered paragraphs, of the
material facts as to which the moving party contends there is no genuine issue to
be tried. Each such statement must be followed by citation to admissible
evidence as required by Fed.R.Civ.P. 56(c)(1)(A). Citations shall identify with
specificity the relevant page and paragraph or line number of the evidence cited.
Failure to submit such a statement may constituted grounds for denial of the
motion.
Local R. Civ. P. – W.D.N.Y. 56(a)(1).
Additionally,
The papers opposing a motion for summary judgment shall include a response to
each numbered paragraph in the moving party’s statement, in correspondingly
numbered paragraphs and, if necessary, additional paragraphs containing a
short and concise statement of additional material facts as to which it is
contended there exists a genuine issue to be tried. Each numbered paragraph in
the moving party’s statement of material facts may be deemed admitted for
purposed of the motion unless it is specifically controverted by a correspondingly
numbered paragraph in the opposing statement.
Local R. Civ. P. – W.D.N.Y. Rule 56(a)(2).
Although the court does not condone Plaintiff’s noncompliance with Rule 56(a), “[a] local
rule imposing a requirement of form must not be enforced in a way that causes a party
to lose any right because of a nonwillful failure to comply.” Fed.R.Civ.P. 83(a)(2); Buck
35
v. Cleary, 345 Fed.Appx. 660, 662 (2d Cir. Sept. 14, 2009) (finding district court abused
discretion in deeming admitted defendants’ statement of material facts based on
plaintiff’s failure to separately respond to each stated fact as required under applicable
local rule, vacating lower court’s decision to do so in the absence of any evidence that
the failure to comply was willful, and remanding that portion of the judgment based on
such deemed admitted facts). Similarly, nothing in the instant record establishes, or
even suggests, Plaintiff’s failure to formally comply with Local Rule 56(a)(1) and (2) was
willful. Accordingly, despite Plaintiff’s undisputed failure to comply with Local Rule
56(a)(1) and (2), the court, in the exercise of its discretion, should not deem admitted
Defendant’s statement of undisputed facts based on Plaintiff’s non-compliance.
B.
New York No-Fault Insurance Law
Under New York’s Comprehensive Automobile Insurance Reparations Act,
commonly known as the “No-Fault Insurance Law,” automobile owners in New York are
required to carry automobile insurance compensating injured parties for “basic
economic loss” caused by the use or operation of the automobile within New York,
regardless of fault. Pommells v. Perez, 830 N.E.2d 278, 280 (N.Y. 2005) (citing N.Y.
Ins. Law §§ 5102[a], 5103). Under the No-Fault Law, a plaintiff may not recover for
basic economic losses such as unreimbursed medical expenses, lost wages, or
property damage unless such losses exceed $ 50,000. N.Y. Ins. Law § 5102(a).
Further, “[o]nly 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.”
Pommells, 830 N.E.2d at 280 (quoting N.Y. Ins. Law § 5104[a]). As such, “No-Fault
thus provides a compromise: prompt payment for basic economic loss to injured
36
persons regardless of fault, in exchange for a limitation on litigation to cases involving
serious injury.” Id. (underlining added; citing Montgomery v. Daniels, 340 N.E.2d 444
(N.Y. 1975)).
“By enacting the No-Fault Law, the Legislature modified the common-law rights
of persons injured in automobile accidents to the extent that plaintiffs in automobile
accident cases no longer have an unfettered right to sue for injuries sustained.” Licari v.
Elliott, 441 N.E.2d 1088, 1091 (N.Y. 1982) (citing Montgomery v. Daniels, 340 N.E.2d
444, 453-54 (N.Y. 1975). In particular,
Notwithstanding any other law, in any action by or on behalf of a covered person
against another covered person for personal injuries arising out of negligence in
the use or operation of a motor vehicle in this state, there shall be no right of
recovery for non-economic loss, except in the case of a serious injury, or for
basic economic loss.
N.Y. Ins. Law § 5104(a) (“§ 5104(a)”).
“Thus, to the extent that the Legislature has abrogated a cause of action, the issue is
one for the court, in the first instance where it is properly raised, to determine whether
the plaintiff has established a prima facie case of sustaining serious injury.” Licari, 441
N.E.2d at 1091. As such, it “is incumbent upon the court to decide in the first instance
whether plaintiff has a cause of action to assert within the meaning of the statute,” id.,
and “[i]f it can be said, as a matter of law, that plaintiff suffered no serious injury within
the meaning of [§ 5102(d)], then plaintiff has no claim to assert and there is nothing for
the jury to decide.” Id. at 1092.
1.
Pecuniary Damages and Economic Losses
Defendant argues Plaintiff cannot recover pecuniary damages because Plaintiff
did not incur more than $ 50,000 in basic economic losses. Defendant’s Memorandum
37
at 5-6. Plaintiff has not argued in opposition to this assertion, nor has Defendant argued
in further support of it.
To recover under New York’s No-Fault Law, Plaintiff must establish she incurred
more than $ 50,000 in damages from medical expenses, lost wages, and other
reasonable and necessary expenses attributed to her claimed injuries. N.Y. Ins. Law §
5102(a); Ventra v. United States, 121 F.Supp.2d 326, 332 (S.D.N.Y. 2000). In the
instant case, Defendant’s interrogatory No. 9 inquired as to the amount of medical
expenses incurred, as well as the amount of future medical expenses anticipated as a
result of Plaintiff’s alleged injuries. Defendant’s Interrogatory No. 9 (Dkt. 43-1 at 18).
Plaintiff responded, “[u]pon information and belief, the plaintiff has suffered $91,966.00
in damages for bodily injuries, pain and suffering, and loss of enjoyment of life as a
result of the subject incident. Additionally, she incurred less than $1,000 in out-ofpocket expenses up to this point.” Id. In response to Defendant’s Interrogatory No. 11,
inquiring about other medical expenses, Plaintiff responded she was then “unaware of
the exact amounts incurred for special damages, ie, physicians services, medicines,
medical attendances, hospital expenses, nursing services, x-rays, and all other such
expenses.” Id. at 19-20. Nevertheless, Plaintiff was attempting to obtain a complete
accounting of all medical expenses and was to furnish a supplemental response when
the information was obtained. Id. Defendant maintains, Defendant’s Memorandum at 6
n. 3, and Plaintiff does not dispute, that no relevant supplemental responses were ever
provided. Although at her January 7, 2016 deposition, Plaintiff testified that “I’m sure I
do have bills at home and there’s some things that I did submit to no-fault that I’m sure I
38
have copies of those,” Plaintiff’s Dep. Tr. 9 at 99-100, Defendant maintains, Defendant’s
Memorandum at 6 n. 3, and Plaintiff does not dispute, that no such information was ever
provided. Plaintiff thus has failed to provide any documentary support for any of her
asserted medical expenses which, as a result, are purely speculative and thus are
insufficient to establish an issue of fact so as to avoid summary judgment. See Wilson
v. Colosimo, 959 N.Y.S.2d 301, 304 (4th Dep’t 2012) (granting defendants summary
judgment where the plaintiff failed to provide any evidence of economic loss as required
to support economic loss claim under No-Fault Law).
Plaintiff encounters the same problem insofar as Plaintiff provided no
documentation for her alleged lost income from her substitute teaching position with the
Buffalo Public School District. As Defendant further maintains, Defendant’s
Memorandum at 6-7, although Plaintiff alleges she was unable to return to work as a
substitute school teacher for the balance of the 2012-2013 school year, resulting in
missing the 37 school days between May 7, 2013 and June 26, 2013, for which Plaintiff
would have been paid $ 110 per day, Plaintiff provided no documentation that she
substitute taught every day until the accident, and that he injuries caused her to turn
down substitute teaching opportunities following the accident, including until the end of
the regular school year on June 26, 2013, and summer school for the summer of 2013.
Indeed, the record establishes that Dr. Liu-Chen, Plaintiff’s primary care physician,
authorized Plaintiff to return to substitute teaching as of May 13, 2013, see New York
Motor Vehicle No-Fault Insurance Law, Verification of Treatment by Attending Physician
(Dkt. 43-9 at 13-14) (Dr. Liu-Chen indicating on May 17, 2013, that Plaintiff was
9
References to “Plaintiff’s Dep. Tr.” are to pages of the transcript of Plaintiff’s deposition, portions of
which are filed as Defendant’s Exh. E (Dkt. 43-2), and as Plaintiff’s Exh. F (Dkt. 47-7).
39
disabled from work for the period May 7 through May 10, 2013 based on low back pain
and acute next pain attributed to the May 7, 2013 collision). This is consistent with Dr.
Leddy’s Report that Plaintiff stated “she missed one to 2 weeks of school after the
accident but then returned,” Dr. Leddy’s Report at 1, as well as Dr. Horvath’s indication
in his report of September 27, 2013 (Dkt. 43-4 at 2-4), that Plaintiff was then “working,”
and Dr. Marconi’s report (Dkt. 43-9 at 8-12), that Plaintiff “did return[ ] to work in
September 2013 at Bennett High School as an English teacher.” Significantly, Plaintiff
has not challenged the accuracy of any of these medical reports.
Accordingly, Plaintiff’s claim for lost wages is unsupported by any documentation
and, thus, is purely speculative and insufficient to avoid summary judgment insofar as
Plaintiff seeks to recover for basic economic loss stemming from the collision. Wilson,
959 U.S. at 304.
2.
“Serious Injury”
Regardless of whether Plaintiff sustained in excess of the $ 50,000 threshold in
damages from medical expenses, lost wages, and other reasonable and necessary
expenses to sustain a claim for basic economic expenses, to recover for non-economic
losses, Plaintiff must establish she sustained a “serious injury” under New York’s NoFault Law. N.Y. Ins. Law § 5104(a) (“there shall be no right of recover for non-economic
loss, except in the case of a serious injury . . .”). As relevant, a “serious injury” is
defined as
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 determinable injury or impairment of a non-permanent nature which
prevents the injured person from performing substantially all of the material acts
40
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).
“There can be little doubt that the purpose of enacting an objective verbal
definition of serious injury was to ‘significantly reduce the number of automobile
personal injury accident cases litigated in the courts, and thereby help contain the nofault premium.’” Licari, 441 N.E.2d at 1091 (quoting Memorandum of State Executive
Dep’t, 1977 McKinney’s Session Laws of N.Y., p. 2448). “While it is clear that the
Legislature intended to allow plaintiffs to recover for noneconomic injuries in appropriate
cases, it had also intended that the court first determine whether or not a prima facie
case of serious injury has been established which would permit a plaintiff to maintain a
common-law cause of action in tort.” Id. (citing cases).
Accordingly, in the instant case, to establish a “serious injury,” Plaintiff must
submit medical evidence demonstrating at least one of the nine categories of serious
injury specified under § 5102(d). Here, Plaintiff generally seeks to recover for injuries to
her left wrist, cervical, and lumbar spines allegedly sustained during the collision.10
Plaintiff specifies that her injuries meet three of § 5102(d)’s nine categories of serious
10
Plaintiff specifically claims she sustained as a result of the collision the following injuries: “contusion,
whiplash, neck pain, left wrist pain, left wrist sprain, left hand diffuse tenosynovitis, left wrist extensor
tenosynovitis, left wrist trapeziometacarpal CMC joint capsular laxity, left shoulder pain, leg numbness,
leg tingling, headaches, low back pain with radiculopathy, cervical spine retrolisthesis with loss of disc
osteophyte complex and central disc herniation, unconvertebral hypertrophy and moderate left foraminal
narrowing, left lumbar far lateral disc herniation resulting in moderate left foraminal narrowing with a left
facet cyst, spondylosis, retrolisthesis, and mild central stenosis at C6-7, cervical radiculitis, broad disc
herniation at L4-5 with left and right lateral radial annular tears, facet hypertrophy with left L4 nerve root
impression, right L4 nerve root abutment, moderate left and mild right foraminal narrowing, mild lateral
recess stenosis, L5 root abutment, borderline central spinal stenosis, stable hydration loss from T11-12 to
L4-5, thoracic sprain/strain, cephalgia, and myofascial pain syndrome.” Plaintiff’s Answers to Defendant’s
First Set of Interrogatories, Defendant’s Exh. D (Dkt. 43-1 at 12-22), Interrogatory 6.
41
injury, including (1) a significant limitation of use of a body function or system; (2)
permanent consequential limitation of use of a body organ or member; and (3) medically
determined injury or impairment of a non-permanent nature which prevented Plaintiff
from performing substantially all of the material acts constituting her usual and
customary daily activities for at least 90 of the 180 days immediately following the
collision (the “90/180” category).
To obtain summary judgment on Plaintiff’s serious injury claim under § 5102(d),
Defendant’s initial burden is to establish by competent medical evidence that Plaintiff
did not sustain a “serious injury” within the meaning of § 5102(d). See Yong Qin Luo v.
Mikel, 625 F.3d 772, 776-77 (2d Cir. 2010) (recognizing threshold issue on defendant’s
summary judgment motion on § 5102(d) serious injury claim is whether the plaintiff
sustained a serious injury within the meaning of § 5102(d) (citing Licari, 441 N.E.2d at
1091)). In contrast, to avoid summary judgment, Plaintiff must establish, by competent
medical evidence, a genuine issue of material fact exists as to whether she sustained
such an injury. See McHugh v. Marfoglia, 885 N.Y.S.2d 550, 551 (4th Dep’t 2009)
(reversing lower court’s denial of plaintiff’s partial summary judgment motion on
threshold issue of serious injury where plaintiff’s objective medical evidence showed
plaintiff suffered spine injury requiring surgery and resulting in permanent loss of ROM
(citing Toure v. Avis Rent A Car Sys., 774 N.E.2d 1197, 1201-02 (2002))). In attempting
to establish the plaintiff’s injuries are not serious within the meaning of § 5102(d), a
defendant can rely on “the affidavits or affirmations of medical experts who have
examined the plaintiff and concluded that no objective medical findings support the
plaintiff’s claim.” Grossman v. Wright, 707 N.Y.S.2d 233, 237 (2d Dep’t 2000).
42
Although generally, a physician’s opinion is admissible as evidence only “when
subscribed and affirmed by him to be true under penalties of perjury,” N.Y. Civ. Prac. L.
& R. 2106(a), the defendant may rely on unsworn medical records provided by the
plaintiff to the defendant, although in doing so, the defendant opens the door for the
plaintiff to also rely upon the same, unsworn records in opposing summary judgment.
Kearse v. New York City Transit Authority, 789 N.Y.S.2d 281, 283-84 & n. 1 (2d Dep’t
2005) (citing cases). See also Yong Qin Luo, 625 F.3d at 777 (in establishing its prima
facie case, a defendant may rely upon the plaintiff’s unsworn treatment records, but to
rebut the defendant’s showing, the plaintiff must provide affidavits, affirmations or other
sworn statements). Upon establishing such a prima facie case, the burden shifts to the
opposing party to point to evidence showing a genuine issue of material fact on this
issue. Licari, 441 N.E.2d at 1091. Furthermore, the ‘[p]laintiff must present objective
proof of injury, as subjective complaints of pain will not, standing alone, support a claim
for serious injury.” Yong Qin Luo, 625 F.3d at 777.
a.
Permanent Consequential Limitation of Use of a Body
Organ or Member/Significant Limitation of Use of a Body
Function or System
Plaintiff alleges numerous physical problems with her left wrist, and cervical and
lumbar spines resulting in permanency or “significant limitation of use of a body organ,
member, function or system” as required under § 5102(d). A review of Plaintiff’s
medical records, however, establishes they fall short of demonstrating a material issue
of fact as to whether Plaintiff sustained a “serious injury” under either of these
categories.
43
Because both a “consequential limitation” and a “significant limitation” are
similarly construed as more than a “‘minor, mild or slight limitation of use,’” Gaddy v.
Eyler, 591 N.E.2d 1176, 1177 (N.Y. 1992) (quoting Licari, 441 N.E.2d at 1091, and
citing Scheer v. Koubek, 512 N.E.2d 309, 309 (N.Y. 1987)), the court addresses both
categories together. As used in § 5102(d), “significant” is “construed to mean
something more than a minor limitation of use.” Licari, 441 N.E.2d at 1091.
Specifically, “a minor, mild or slight limitation of use should be classified as insignificant
within the meaning of [§ 5102(d)].” Id. Accordingly, for Plaintiff to establish a serious
injury under these categories and avoid summary judgment, Plaintiff must establish both
that her injuries resulted in limited use of a body organ, member, function or system, as
well as that such limitation is significant. Licari, 441 N.E.2d at 1092-93.
Where, as here, a plaintiff seeks recovery of damages for a serious injury based
on a soft tissue injury associated with complaints of pain and loss of ROM, courts are to
evaluate such claims with “well-deserved skepticism.” Pommells, 830 N.E.2d at 281.
Although the medical evidence establishes Plaintiff has several bulging discs in her
cervical and lumbar spines indicative of degenerative disc disease, a diagnosis of
general disc pathology, including a bulging or herniated disc, alone is insufficient to
establish a serious injury under § 5102(d). See Pommells, 830 N.E.2d at 282 (“Proof of
a herniated disc, without additional objective medical evidence establishing that the
accident resulted in significant physical limitations, is not alone sufficient to establish a
serious injury.”). See also Toure, 774 N.E.2d at 1201 n. 4 (recognizing New York’s
“Appellate Divisions have held that a diagnosis of a bulging or herniated disc, by itself,
does not constitute a serious injury.” (citing cases)). Rather, such claims “must be
44
supported by medical records and may not be based solely on plaintiff’s testimony and
subjective complaints of pain.” Jones v. United States, 408 F.Supp.2d 107, 117
(E.D.N.Y. 2006). Admissible objective evidence for this purpose includes X-rays, MRIs
and CT scans, use of a goniometer or inclinometer to measure ROM, straight leg raising
test to detect pain, and other objective medical testing. See Smith v. Reeves, 946
N.Y.S.2d 750, 752 (4th Dep’t 2012) (in the absence of any objective medical test
results, treating physician’s affirmation regarding the plaintiff’s symptoms insufficient to
create issue of fact to avoid summary judgment); O’Gorman v. Prus, 10 N.Y.S.3d 830,
833 (Westchester Cty. 2015) (requiring objective proof of alleged extent of physical
limitation resulting from disc injuries to raise triable issue of fact and avoid summary
judgment). “‘MRIs, X-rays and CT scans are objective and credible medical evidence of
a serious injury because they do not rely on the patient’s complaints of pain.’” Davis v.
United States, 2012 WL 88307, at * 5 (N.D.N.Y. Jan. 11, 2012) (quoting Mastrantuono
v. United States, 163 F.Supp.2d 244, 254 (S.D.N.Y. 2001)). The “extent or degree of
physical limitation” posed by an injury also may be proven by “an expert’s designation of
a numeric percentage of a plaintiff’s loss of range of motion [which] can be used to
substantiate a claim of serious injury.” Toure, 774 N.E.2d 1197, 1200 (N.Y. 2002)
(bracketed text added). Although “there is no set percentage for determining whether a
limitation in range of motion is sufficient to establish ‘serious injury,’ the cases have
generally found that a limitation of twenty percent or more is significant for summary
judgment purposes.” Hodder v. United States, 328 F.Supp.2d 335, 356 (E.D.N.Y. 2004)
(collecting cases). “[L]ess than 20% limitation has been found insufficient to survive a
motion for summary judgment.” Id. Where, however, a decreased ROM is asserted as
45
proof of a serious injury, the medical findings must indicate the methodology used to
calculate the reduced ROM, as well as whether such methodology consisted of active or
passive ROM tests. Watson-Tobah v. Royal Moving & Storage, Inc., 2014 WL
6865713, at *18 (S.D.N.Y. Dec. 5, 2014) (holding medical reports of restricted ranges of
motion were “insufficient to overcome defendants’ prima facie showing of the absence
of a serious injury” so as to meet plaintiff’s burden in opposing summary judgment
because “there is no indication as to the methodology used to calculate the degrees of
restriction and whether the tests conducted were passive or active range-of-motion
tests.”).
The difference between “active” and “passive” ROM tests has been explained by
one court as follows:
[T]here are two types of range of motion tests: passive and active. In performing
active range of motion tests, the patient is asked to move the body part at issue
in various directions and is asked to indicate when further movement become
restricted or painful. In the passive range of motion test, the examiner moves the
injured body part until the motion is restricted or pain is created. The doctor
measures the range of the patient’s ability to move the subject body part,
sometimes with a protractor, and then compares that to the patient’s ‘normal’
range of motion if the patient has a prior history with the doctor, or with what is
considered normal of people of the same age and sex of the patient.
The results of the passive test are based upon more objective criteria, because
the doctor controls the movements. However, the fact is that most doctors will
stop moving the patient once the patient begins to complain of pain, whether
truthful or not. Thus, courts have required that the physician conduct objective
range of motion tests, and quantify the results of the range of motion tests.
Hodder, 328 F.Supp.2d at 355 (citations and quotation marks omitted).
Courts have not hesitated to dismiss claims on summary judgment where the plaintiff’s
medical evidence fails to specify the objective medical tests performed or to explain
whether the ROM tests conducted were active or passive. See, e.g., Hodder, 328
46
F.Supp.2d at 356-57 (holding plaintiff failed to establish a serious injury under § 5102(d)
based on decreased ROM of spine where treating chiropractor failed to clarify whether
tests he conducted to elicit decreased ROM results were active or passive); Palasek v.
Misita, 734 N.Y.S.2d 587, 588 (2d Dep’t 2001) (affirming summary judgment for the
defendant where, inter alia, plaintiff’s treating physician’s affidavit “failed to set forth the
objective medical tests performed by the examining physician to determine that the
plaintiff suffered specifically-quantified restrictions of motion in her neck and back.”);
and Gillick v. Knightes, 719 N.Y.S.2d 335, 336 (2d Dep’t 2001) (“We have repeatedly
held that a diagnosis of loss of range of motion, because it is dependent on the patient’s
subjective expression of pain, is insufficient to support an objective finding of serious
injury.”).
In the instant case, Plaintiff has submitted medical records showing that following
the collision, she experienced decreased ROM in her cervical and lumbar spines, and
left wrist. Plaintiff’s medical records, however, fail to establish the methodology by
which the decreased ROMs were ascertained such that Plaintiff cannot establish she
sustained under § 5102(d) a serious injury based on a permanent or significant loss of
use of a body part, member, function or system.
In particular, on August 6, 2013, Dr. Simmons determined Plaintiff’s ROM limited
to 30% for flexion, extension, and right and left rotation of her cervical spine, and limited
to 30% for flexion, and 20% for extension of her lumbar spine. Plaintiff’s Exh. O (Dkt.
47-16) at 23. Dr. Horvath similarly determined Plaintiff had ROM deficits with regard to
flexion, extension, right and left rotation, and right and left lateral in both her cervical
and lumbar spines. See, e.g., Plaintiff’s Exh. P (Dkt. 47-17) at 15. At his initial
47
evaluation of Plaintiff on July 24, 2013, Dr. Tetro reported Plaintiff’s left wrist showed
ROM deficits with dorsiflexion and palmarflexion. Plaintiff’s Exh. Q (Dkt. 48), at 28-29;
Defendant’s Exh. G (Dkt. 43-4) at 12. Despite this evidence showing decreased ROM
for Plaintiff’s cervical and lumbar spines, the reports fail to specify whether the
measurements are based on active or passive ROM assessments, nor is the
methodology used to obtain the ROM measurements identified.11 As discussed above,
the medical evidence’s failure to set forth the methodology used to determine Plaintiff’s
asserted cervical and lumbar spine ROM deficits is fatal to this aspect of her serious
injury claim.
With further regard to Plaintiff’s left wrist injury, the evidence establishes that
following receipt of a corticosteroid injection on September 27, 2013, such injury
essentially has resolved and is asymptomatic, with Plaintiff maintaining she experiences
only occasional stiffness and slight pain during inclement weather. See, e.g., Plaintiff’s
Exh. Q (Dkt. 48) at 19 (repeated at 23, and Defendant’s Exh. G (Dkt. 43-4) at 2) (Dr.
Tetro reporting on September 27, 2013 that Plaintiff “has noted near complete relief of
her left wrist pain following a corticosteroid injection.”); Plaintiff’s Dep. Tr. at 97-98 (“My
wrist feels okay. I don’t - - sometimes the weather changes and it becomes a little
painful and some stiffness but it’s all right.”). Nor is there any information in the record
11
Nor do any other records of Dr. Simmons, Dr. Tetro, or Dr. Horvath submitted in connection with
Plaintiff’s stricken, putative expert witness reports of measurements of Plaintiff’s ROM, active or passive,
relative to her alleged injuries, indicate the methodology used to obtain such ROM measurements.
Although Dr. Horvath does state in his stricken summary report that “[a]ll range-of-motion deficits were
objectively measured using an inclinometer, which is a device used to measure an angle of inclination[,
such that t]he measurements did not depend solely on Ms. Catania’s subjective complaints of pain,” Dr.
Horvath’s Report (Dkt. 47-17), ¶ 3, the impact of such fact on the court’s consideration of the medical
records, i.e., elevating the ROM measurements to objective evidence that could defeat summary
judgment, further demonstrates why timely disclosure of the non-retained medical sources’ summary
reports is required.
48
establishing Plaintiff continues to have any decreased ROM of her left wrist. As such,
Plaintiff is unable to establish either a permanent, consequential, or a significant
limitation based on her left wrist injury.
b.
The “90/180 Category”
Nor is there any merit to Plaintiff’s contention that her injuries may be considered
serious under § 5102(d)’s so-called “90/180 category,” Toure, 774 N.E.2d at 1204,
pursuant to which a plaintiff may recover damages if, as a result of an accident, the
plaintiff suffered a non-permanent, medically determined injury or impairment that
prevented the plaintiff “from performing “substantially all of the material acts which
constitute [the plaintiff’s] usual and customary daily activities for not less than” 90 of the
180-day period “immediately following” the injury. N.Y. Ins. Law § 5102(d).
Qualification as a serious injury under the “90/180 category” requires the nonpermanent injury to have resulted from the accident, N.Y. Ins. Law § 5104(a), and be
shown to have prevented a plaintiff “‘from performing his usual activities to a great
extent rather than some slight curtailment.’” Escoto v. United States, 848 F.Supp.2d
315, 330 (E.D.N.Y. 2012) (quoting Thompson v. Abbasi, 788 N.Y.S.2d 48, 49 (1st Dep’t
2005)). Despite lacking “the ‘significant’ and ‘consequential’ terminology” of the two
previously discussed categories, Discussion, supra, at 39-40, to establish a serious
injury under the 90/180 category, “a plaintiff must present objective evidence of ‘a
medically determined injury or impairment of a non-permanent nature.’” Toure, 774
N.E.2d at 1024 (quoting N.Y. Ins. Law § 5102[d]; and Licari, 441 N.E.2d at 1091-92).
In the instant case, the period of time with which the court is concerned with
regard to Plaintiff establishing serious injury under the 90/180 category ends 180 days
49
following the May 7, 2013 collision, i.e., November 3, 2013. Significantly, the record is
devoid of any medical affidavit or statement from any medical provider who treated
Plaintiff during the relevant 180-day period attesting to Plaintiff’s inability to engage in
her customary daily activities for at least 90 of those 180 days. See Sainte-Aime v. Ho,
712 N.Y.S.2d 133, 136 (2d Dep’t 2000) (statements reported in physician’s affidavit that
were based on the plaintiff’s own self-serving statements and unsupported by any
objective medical evidence were insufficient to establish serious injury under N.Y. Ins.
Law § 5102(d)’s 90/180 rule).
Specifically, although Plaintiff maintains that the injuries she sustained as a result
of the collision prevented her from returning to work for the rest of the 2012-2013 school
year, Plaintiff’s Response to Defendant’s Interrogatory No. 15 (Defendant’s Exh. D at 9;
Dkt. 43-1 at 21), and caused Plaintiff to turn down employment as a substitute teacher
for the summer of 2013, id., Plaintiff has submitted no evidence that she was ever
offered a substitute teacher position for the summer of 2013 that she was unable to
accept because of the alleged injuries. Moreover, on September 27, 2013, shortly after
the new school year commenced, Dr. Tetro commented that Plaintiff had no disability
and had returned to work. Plaintiff’s Exh. Q (Dkt. 48) at 21 (repeated at 25; Defendant’s
Exh. G (Dkt. 43-4) at 4). Accordingly, given the late point in the 2012-2013 school year
at which the collision occurred, and the close proximity to the start of the new school
year when Plaintiff admitted she had returned to work, and Plaintiff’s failure to produce
any evidence that she was offered any employment as a substitute teacher for the
summer of 2013, Plaintiff cannot establish her injuries prevented her from working for
90 of the 180 days following the collision because school was not in session for fewer
50
than 90 days between the May 7, 2013 collision and September 27, 2013 when Dr.
Tetro reported Plaintiff had returned to work.
Nor is there any medical evidence in the record establishing any treating
physician or chiropractor placed any limitations on Plaintiff’s daily activities, a fact that
has not escaped Dr. Leddy’s notice. Dr. Leddy’s Addendum at 5. See Buccilli v. United
States, 2016 WL 4940260, at * 10 (W.D.N.Y. Feb. 3, 2016) (a personal injury plaintiff’s
deposition testimony regarding limitations attributed to a serious injury under the 90/180
day category “must be substantiated by objective medical proof. Self-serving
statements of pain or limitation are insufficient to raise a triable issue of fact.” (citing
cases)). See also Jones v. Marshall, 47 N.Y.S.3d 791, 793-94 (3d Dep’t 2017)
(“objective evidence, such as medically imposed limitations upon daily activities, must
support a plaintiff’s claim under the 90/180-day category; self-serving assertions in this
regard will not suffice.” (citing Clausi v. Hall, 6 N.Y.S.3d 771, 774 (3d Dep’t 2015); and
Shea v. Ives, 26 N.Y.S.3d 816, 819 (3d Dep’t 2016))). Simply, the medical records
pertaining to Plaintiff for the relevant 180-day period, i.e., May 7, 2013 through
November 3, 2013, contain no physician’s opinion or remark as to whether Plaintiff was
able to perform her usual and customary activities warranting summary judgment. See
Turchuk v. Town of Wallkill, 681 N.Y.S.2d 72, 73 (2d Dep’t 1998) (holding personal
injury plaintiff’s self-serving statements that she was unable to perform household
chores for six months following automobile accident, without more, were insufficient to
establish the plaintiff sustained a medically-determined injury that prevented the plaintiff
from performing substantially all of her usual and customary daily activities under the
90/180 category). In contrast, Dr. Luzi opined on July 17, 2013, that Plaintiff could
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return to work with only some minor restrictions, including avoiding repetitive bending of
the waist and neck, lifting or carrying more than 20 pounds, and sitting, standing or
walking for prolonged periods of time, restrictions which Dr. Luzi did not find would
preclude Plaintiff from working as a substitute teacher. Dr. Luzi’s Report, Dkt. 43-9 at 7.
Accordingly, summary judgment should be GRANTED as to Defendant on this
aspect of Plaintiff’s claims.
3.
Causally Related
Although the undersigned is recommending granting summary judgment to
Defendant based on the failure of Plaintiff’s medical records to establish any of
Plaintiff’s alleged injuries meets the criteria to be considered “serious” under § 5102(d),
in the interest of completeness, the court alternatively considers Defendant’s argument,
Defendant’s Memorandum at 10-12, that Plaintiff may not recover for non-economic
losses for injuries not causally-related to the collision. A review of the evidence in the
record shows genuine issues of fact exist only as to whether Plaintiff’s alleged lumbar
spine and left wrist injuries are causally related to the collision so as to survive summary
judgment.
In addition to establishing an injury meeting the criteria of a serious injury as
defined by § 5102(d), Plaintiff must also establish the injury was caused by the collision.
Significantly, “even where there is objective medical proof, when additional contributory
factors interrupt the chain of causation between the accident and claimed injury – such
as a gap in treatment, an intervening medical problem, or a preexisting condition –
summary dismissal of the complaint may be appropriate.” Pommells, 830 N.E.2d at
281. As discussed above, Facts, supra, at 5-7, Plaintiff has a preexisting history of
52
complaints of neck pain for which no medical resolution appears in the record, such that
the court must compare Plaintiff’s post-collision condition not only to normal ROMs for
the affected joints, but also to her pre-collision ROMs. See, e.g., Jones v. United
States, 408 F.Supp.2d 107, 119-20 (E.D.N.Y. 2006) (“While plaintiff has significant
limitations in his neck and back functions, they are not the result of the January 2000
car accident; rather, they emanate from pre-existing cervical vertebrae degenerations
and a disc herniation.”). Toward this end, Plaintiff’s proof entirely fails with regard to her
cervical spine injury because “[w]here, as here, a defendant’s proof that the plaintiff has
not sustained a serious injury as a result of the motor vehicle accident at issue rests in
part on evidence that she had a preexisting condition prior to the accident, the plaintiff
must address that contention in her medical reports” or face summary judgment.
Brusso v. Imbeault, 699 F.Supp.2d 567, 585-86 (W.D.N.Y. 2010) (citing cases). Fatal to
Plaintiff’s serious injury claims based on her cervical spine is the absence of any
evidence in the record establishing Plaintiff’s cervical spine ROM prior to the collision,
such that the requisite comparison with Plaintiff’s cervical spine ROM after the collision
cannot be made. Furthermore, even though the observation of degenerative changes
prior to an accident does not necessarily preclude a determination that such
degenerative changes left the plaintiff more injury-prone following a subsequent
traumatic event which could aggravate preexisting injuries, see Brown v. Miller, 50
N.Y.S.3d 693, 693 (4th Dep’t 2017) (recognizing personal injury plaintiff with preexisting
degenerative changes in lumbar spine could recover for causally related serious injury
only if the plaintiff could establish collision aggravated or exacerbated preexisting
degenerative condition), more than a conclusory statement from a treating physician is
53
required to establish a causal connection. See Pommells, 830 N.E.2d at 286-87 (where
defendant presents evidence of preexisting degenerative disc condition causing the
plaintiff’s alleged injuries, the plaintiff, to survive summary judgment, must provide
sufficient evidence, i.e., more than a mere conclusory opinion, to refute the defendant’s
evidence and raise an issue of fact for the jury). Here, even accepting the stricken
opinions of Drs. Simmons and Horvath, neither opinion attempts to make the requisite
cervical spine ROM comparison prior to and after the collision. Nevertheless, with no
preexisting injury established with regard to Plaintiff’s lumbar spine and left wrist, no
such ROM comparison is required for these alleged injuries, such that issues of fact
remain as to the causation of Plaintiff’s alleged lumbar spine and left wrist injuries.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion (Dkt. 47), is DENIED; Defendant’s
Motion (Dkt. 40) should be GRANTED; the Clerk of the Court should be directed to
close the file.
SO ORDERED, as to Plaintiff’s Motion.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Respectfully submitted, as to Defendant’s Motion,
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:
December 11, 2017
Buffalo, New York
54
ORDERED that this Report and Recommendation be filed with the Clerk of the
Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the
Clerk of the Court within fourteen (14) days of service of this Report and
Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(d) of
the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an
extension of such time waives the right to appeal the District Court's Order.
Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human
Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d
Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the Plaintiff and
to the attorneys for the Defendant.
SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:
December 11, 2017
Buffalo, New York
55
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