Wirt v. United States ( 2018 )

17-1353-cv
Wirt, et al. v. United States, et. al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
1st day of May, two thousand eighteen.
Present:
AMALYA L. KEARSE,
GUIDO CALABRESI,
DEBRA ANN LIVINGSTON,
Circuit Judges,
_____________________________________
LAURA A. WIRT, LAURA K. RODRIGUEZ,
Plaintiffs-Appellants,
v. 17-1353-cv
UNITED STATES OF AMERICA, NEW YORK CITY
TRANSIT AUTHORITY, ANGEL LOPEZ,*
Defendants-Appellees,
_____________________________________
For Plaintiffs-Appellants: LESTER B. HERZOG, Brooklyn, NY.
For Defendant-Appellee United States KATHLEEN A. MAHONEY, Assistant United
of America: States Attorney (Varuni Nelson, Assistant
United States Attorney, on the brief), for
Bridget M. Rohde, Acting United States
*
The Clerk is directed to conform the official caption to the caption on this order.
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Attorney, Eastern District of New York,
Brooklyn, NY.
For Defendants-Appellees New York TIMOTHY J. O’SHAUGHNESSY (Lawrence
City Transit Authority and Angel Heisler, on the brief), New York City Transit
Lopez Authority, Brooklyn, NY.
Appeal from a May 1, 2017 judgment of the United States District Court for the Eastern
District of New York (Chen, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiffs-Appellants Laura Wirt and Laura Rodriguez appeal from a May 1, 2017
judgment of the United States District Court for the Eastern District of New York (Chen, J.). The
district court granted summary judgment to Defendants-Appellees United States of America, New
York City Transit Authority (“NYCTA”) in this tort litigation brought under New York law and
alleging serious injuries sustained in connection with an April 2008 collision between a United
States General Services Administration vehicle and an NYCTA bus. We review de novo a district
court’s grant of summary judgment, resolving all ambiguities and inferences in favor of the
nonmoving party. See, e.g., Jackson v. Fed. Exp., 766 F.3d 189, 192 (2d Cir. 2014). We assume
the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues
on appeal.
1. Background
On April 23, 2008, Angel Lopez was driving an NYCTA bus in Brooklyn, New York,
when he abruptly braked. A sedan owned by the GSA and driven by Horace Mancie crashed into
the back of the stopped bus. Two years later, Laura Wirt and Laura Rodriguez commenced this
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action, alleging that they were passengers in the bus at the time and seeking non-economic
damages for injuries purportedly caused by the crash.1
The district court granted summary judgment to the defendants. It concluded first that Wirt
and Rodriguez could only recover if they could establish that they suffered “serious injuries” under
the Comprehensive Motor Vehicle Insurance Reparations Act, N.Y. Ins. L. § 5101 et seq.,
commonly known as the “No-Fault Law.” Neither could meet this burden, the court held, because
neither came forward with sufficient evidence to raise a material question of fact as to whether the
April 2008 accident was the cause of their injuries. The court entered judgment for the defendants
in May 2017, and Wirt and Rodriguez filed a timely notice of appeal.
2. Analysis
The Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., waives the United States’
sovereign immunity for tort claims alleging personal injury, death, or injury to or loss of property
caused by a federal employee’s negligent conduct “under 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 [negligent] act or omission occurred.” 28 U.S.C. § 2672. New York’s No-Fault Law dictates
that “in any action by or on behalf of a covered person against another covered person . . . 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. L. § 5104(a). The term “covered persons” includes anyone
“entitled to first party benefits,” § 5102(j), which are defined as “payments to reimburse a person
for basic economic loss on account of personal injury arising out of the use or operation of a motor
vehicle,” § 5102(b).
1
The complaint explicitly disclaims any claims for “hospital, medical, pharmaceutical or any other
monetary or pecuniary damages.” Appellant App’x at 68, 77–78.
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“[A] personal injury which results in . . . significant disfigurement . . . or impairment of a
non-permanent nature which prevents the injured person from performing substantially all of the
material acts which constitute such person’s usual and customary daily activities for not less than
ninety days during the one hundred eighty days immediately following the occurrence of the injury
or impairment” counts as a “serious injury.” § 5102(d). New York law requires that plaintiffs
provide “objective proof of . . . [serious] injury,” Toure v. Avis Rent A Car Systems, Inc., 98 N.Y.2d
345, 350 (2002), and demonstrate that the accident at issue was the cause of the injury. See
Pommells v. Perez, 4 N.Y.3d 566, 572 (2005). If a defendant moves for summary judgment on the
grounds that an accident did not cause the serious injuries in question, that defendant must supply
“persuasive evidence” that the injuries were caused by something else. Id. at 580; Cross v.
Labombard, 127 A.D.3d 1355, 1356 (3d Dep’t 2015) (requiring “adequate medical evidence”). If
the defendant can do so, the burden shifts to the plaintiff, who must “come forward with evidence
addressing defendant’s claimed lack of causation.” Pommells, 4 N.Y.3d at 580.
On appeal, Wirt and Rodriguez first contend that the United States is not a “covered
person” under the No-Fault Law, so that they can recover as against the United States even if they
cannot establish “serious injuries.”2 Second, they argue, even if the United States constitutes a
“covered person,” there is a triable issue of fact as to whether they suffered “serious injuries.” We
disagree with Wirt and Rodriguez on both points.
As the district court explained, we held in United States v. Government Employees
Insurance Company that the United States is entitled to “first party benefits,” which means that
the United States is a “covered person” for purposes of the statute. 605 F.2d 669, 671 (2d Cir.
2
It is undisputed that the NYCTA is a “covered person” under the No-Fault Law.
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1979); see also Patrello v. United States, 757 F. Supp. 216, 220 (S.D.N.Y. 1991) (holding that
“the United States is a covered person under” the No-Fault Law); Canfield v. Beach, 305 A.D.2d
440, 441 (2d Dep’t 2003) (same). Wirt and Rodriguez, who are entitled to first party benefits, are
also “covered persons” under the No-Fault Law. Accordingly, Wirt and Rodriguez may not recover
from the United States or the other parties unless they can establish a triable issue of fact as to
whether they suffered “serious injuries,” and whether the accident at issue caused those injuries.
See N.Y. Ins. L. § 5104(a). Neither can do so.
Wirt argues that she suffered two “serious injuries”:
1. she could not “perform[] substantially all of the material acts which constitute[d]
[her] usual and customary daily activities,” N.Y. Ins. L. § 5102(d), for more than
ninety days while she was confined to a hospital or a rehabilitation facility
following the accident, and
2. she sustained “significant disfigurement,” id., because she had to undergo an
operation following the accident, which left her with post-surgical scarring.
There is no question that, at some point after the crash, Wirt had serious injuries that necessitated
surgery and prolonged hospital attention. But the United States has argued that her preexisting
conditions, and not the crash, were the true cause of her “serious injuries.” See Kilmer v. Strek, 35
A.D.3d 1282, 1282–83 (4th Dep’t 2006) (holding that a defendant should have been granted
summary judgment after “presenting evidence establishing that plaintiff's alleged injury preexisted
the accident, the accident did not aggravate that injury and surgery was necessitated by the
preexisting condition”). It presented evidence that between 2004 and the crash, Wirt had been
hospitalized several times for afflictions affecting her back, neck, shoulders, and extremities, and
she had been referred for neurosurgery consultations to remedy her severe back and neck pain,
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which resulted from deterioration in her spinal cord, on at least two occasions. The record also
contains a letter from Dr. Devon Klein, an expert radiologist who reviewed Wirt’s MRI images
from before and after the crash. Dr. Klein concluded that Wirt’s post–April 2008 medical problems
“are the result of chronic degenerative disc disease” that predated the accident “and not the result
of a traumatic injury.” Appellant App’x 127. The United States thus met its burden of production
because it produced “persuasive evidence” that the accident did not cause Wirt’s injuries.
Wirt, by contrast, failed to come forward with sufficient evidence to raise a material issue
of fact as to this “claimed lack of causation.” Pommells, 4 N.Y.3d at 580. She first attacks the
credibility and admissibility of Dr. Klein’s letter, but she failed to raise these arguments below and
has therefore forfeited them. See Lugo v. Hudson, 785 F.3d 852, 855 (2d Cir. 2015) (“Because this
issue is raised for the first time on appeal, we need not consider it.”). Wirt then argues in her reply
brief that Dr. Irving Friedman concluded after examining her several times that the accident caused
her injuries. But she did not make this argument in her opening brief, so she has forfeited this
argument as well. McCarthy v. SEC, 406 F.3d 179, 186 (2d Cir. 2005) (holding that “arguments
not raised in an appellant’s opening brief, but only in [her] reply brief, are not properly before an
appellate court even when the same arguments were raised in the trial court”). Wirt has thus failed
to rebut the United States’ “persuasive evidence” and summary judgment was thus properly
granted as to her claims.
We also agree with the district court that Rodriguez failed to establish a triable issue of fact
as to her claims. To start, it is not entirely clear what “serious injuries” she incurred after the
accident. She claims to have suffered pain in her neck, back, and extremities, but “transitory pain
does not fall within the objective verbal definition of serious injury as contemplated by the No-
Fault Insurance Law,” Scheer v. Koubek, 70 N.Y.2d 678, 679 (1987), and it is undisputed that
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Rodriguez went without medical treatment or physical therapy for neck or back pain for five years
in the post-accident period.
Rodriguez was also examined by Dr. Friedman, who concluded in 2015 that she had a 33%
range of motion deficit at the cervical spine and suffered from daily cervical and lumbar spasms.
Assuming arguendo that these symptoms meet the “serious injuries” standard, however, we
conclude that she still failed to establish a triable question of fact as to cause. Although Rodriguez
went to the hospital immediately after the crash, she was discharged only one hour after arriving;
the doctors found that she enjoyed full range of motion and neurological function. Two months
later, she denied having any radiating pain, and a medical report noted that she was not suffering
from spasms, restrictions of spinal motion, or any objective neurologic deficits. Rodriguez
underwent a few months of physical therapy in 2008, but as already noted, she did not seek any
medical treatment for neck or back pain for five years after the physical therapy ended. When she
sought medical care in 2009 for pregnancy, she did not report any medical problems, and a 2012
doctor’s report said she had no impairments stemming from the April 2008 accident. Thus,
Rodriguez also failed to raise a material issue of fact as to cause.
* * *
We have considered Wirt and Rodriguez’s remaining arguments, including their contention
that partial summary judgment should have been granted in their favor, and find them to be without
merit, and we therefore conclude that the Defendants-Appellees were properly granted summary
judgment as to Plaintiffs-Appellants’ claims. Accordingly, we AFFIRM the judgment of the
district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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