Vadnais v. United States of America ( 2024 )

USDC SDNY DOCUMENT UNITED STATES DISTRICT COURT ELECTRONICALLY FILED SOUTHERN DISTRICT OF NEW YORK DOC #: DATE FILED: 3/13/2024 CARLENE VADNAIS, ATE FILED ee ee Plaintiff, im OPINION & ORDER ON MOTION _against- FOR SUMMARY JUDGMENT 6 1:21-CV-0012 (KHP) UNITED STATES OF AMERICA, Defendant. KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE. This Federal Tort Claims Act (“FTCA”) case arises out of a motor vehicle accident that occurred on the Bruckner Expressway in the Bronx, New York. Presently before the Court is Defendant’s motion for summary judgment. For the reasons set forth below, the motion is granted. FACTS? On October 2, 2019, Plaintiff Carlene Vadnais was at a complete stop in “bumper to bumper” traffic on the Bruckner Expressway when a United States Postal Service (“USPS”) truck bumped into Plaintiff’s car, a 2014 Toyota Camry, from behind while the truck driver was attempting to change lanes. (56.1 Stmt. 94] 1-5.) Plaintiff was taken to the hospital by ambulance complaining of neck and back pain, right foot pain, and left shoulder pain. (56.1 Stmt. 141 6-7.) CT scans were taken of Plaintiff’s head and cervical, thoracic, and lumbar spines. Additionally, X-rays were taken of Plaintiff’s chest, left shoulder and right foot. None of these 1 The facts included herein are undisputed and taken from the Defendant’s Rule 56.1 statement (“56.1 Stmt”) and evidence submitted in connection with the motion. images revealed any acute injuries to any part of Plain�ff’s body. Accordingly, Plain�ff was discharged from the hospital. (56.1 Stmt. ¶¶ 9-10.) Commencing November 4, 2019, Plain�ff did physical therapy at Physical Medicine and Rehabilita�on of New York and saw an orthopedist and a doctor for pain management, primarily for complaints related to her neck and back. (56.1 Stmt. ¶¶ 11-14.) It is undisputed that Plain�ff has a long history of accidents and injuries to her back, neck, side, and shoulders prior to the October 2, 2019 accident. The following is a summary of all of the prior accidents and injuries. On July 14, 2013, Plain�ff drove her vehicle into a ditch as a result of brake failure, a�er which she went to the hospital and was diagnosed with cervical strains. (56.1 Stmt. ¶ 22.) On February 3, 2015, Plain�ff went to the hospital complaining of neck pain and dizziness. (56.1 Stmt. ¶ 23.) On March 8, 2016, Plain�ff went to the hospital a�er having fallen down the stairs complaining of pain in the le� side of her body. (56.1 Stmt. ¶ 24.) On April 4, 2016, Plain�ff went to the hospital a�er being rear ended by a car complaining of neck pain. (56.1 Stmt. ¶ 25.) On September 14, 2016, a chair Plain�ff was si�ng in broke, and she fell backwards and hit her head. As a result, she again went to the hospital and was referred to physical therapy. (56.1 Stmt. ¶¶ 26-27.) On July 15, 2018, Plain�ff was in another car accident and went to the hospital complaining of head, neck, and shoulder pain on her right side. She later did physical therapy for those injuries. (56.1 Stmt. ¶¶ 28-29.) On August 8, 2018, and October 9, 2018, Plain�ff went to the hospital again complaining of con�nued headache, neck and back pain, dizziness and ringing in her ears from the July 2018 car accident. (56.1 Stmt. ¶¶ 28-31.) Doctors performed a nerve study which showed le� L4 radiculopathy. (56.1 Stmt. ¶ 32.) Plain�ff con�nued to complain of ongoing neck and back pain through April 2019 stemming from the 2018 car accident. (56.1 Stmt. ¶ 33.) In sum, Plain�ff was in five serious accidents in the six years prior to the accident at issue in this case. These accidents affected her head, neck, back, and le� and right sides and shoulders and caused con�nuing pain, headaches, dizziness and ringing in the ears. She received mul�ple tests, physical therapy, and other treatment for these injuries.2 Not surprisingly, radiographic images of Plain�ff’s cervical and lumbar spine taken shortly a�er her August 2018 accident -- before the accident at issue in this case -- showed various disc bulges. What is notable for this case is that radiographic images of Plain�ff’s cervical and lumbar spine taken one month a�er the 2019 accident at issue in this case showed the exact same degenera�ve changes to Plain�ff’s spine as present a year earlier. (56.1 Stmt. ¶ 34-39, 62-64; Fischer Declara�on (“Fischer Decl.”) 4.b, Exh. B (Fischer expert report) at 11.) The Government’s expert, Dr. Charla Fischer, who evaluated all of Plain�ff’s medical records and conducted an independent medical exam of Plain�ff, opined that Plain�ff has no evidence of an acute trauma of the spine a�er the October 2, 2019 accident. ( 56.1 Stmt. ¶¶ 59, 61.) Dr. Fischer diagnosed Plain�ff with pre-exis�ng and established cervical and lumbar disc degenera�on and temporary aggrava�on of pre-exis�ng cervical and lumbar disc degenera�on, which has resolved. (56.1 Stmt. ¶ 60.) Dr. Fischer also opined that to a reasonable degree of 2 A�er the accident at issue in this case, Plain�ff was in yet another car accident. On September 1, 2022, Plain�ff was si�ng in a parked car when another car hit her. She again went to the emergency room of a nearby hospital complaining of neck and back pain. (56.1 Stmt. ¶ 18.) CT scans and MRIs were taken of her cervical and thoracic spine, a�er which she was discharged. (Id.) medical certainty, the car accident on October 2, 2019 did not cause Plain�ff to sustain any acute injuries to her cervical or lumbar spine. (Fischer Decl. ¶¶ 4.b, 4.c, Exh. B at 11-12.) Plain�ff’s foot injury is the only new injury allegedly resul�ng from the accident in this case. Plain�ff tes�fied in her deposi�on that when the accident occurred, her foot was on the brake and got stuck under the pedal. However, as noted above, X-rays taken a�er the accident showed no acute injury to the foot and Plain�ff was discharged from the hospital. When deposed, Plain�ff described her foot pain as being related to arthri�s in her foot. (ECF 109-3, Vadnais Dep. Tr. 8:23-25, 135:13-25.) Although she later saw doctors about her foot pain, Plain�ff refused achilles3 and Babinski’s4 reflex tests on her right ankle and foot. (ECF 110-2 p. 5.) Other submissions from her lawyer suggest that Plain�ff had mul�ple problems with her foot including a spur of the first metatarsal with sesamoids, hallux valgus, and other abnormali�es.5 (ECF No. 109-2 pp. 10-11.) Plain�ff offers no expert tes�mony tying the October 2, 2019 car accident to any of the injuries she is claiming in this suit. This is because the Court excluded her one expert, Dr. Jason Arora, a�er repeated discovery viola�ons, disregard of Court Orders, and failure to comply with Federal Rules of Civil Procedure 26(a)(2)(B) and (b)(4)(A).6 (ECF No. 97.) 3 An achilles test can diagnose tendon ruptures. htps://my.clevelandclinic.org/health/diagnos�cs/thompson-test- for-achilles-tendon-rupture. 4 The Babinski test evaluates the integrity of the cor�cospinal tract and can be indica�ve of a spinal cord injury a�er acute trauma. htps://www.ncbi.nlm.nih.gov/books/NBK519009/. 5 Bone spurs and arthri�s in this area of the foot can be caused by excess weight (Plain�ff is 5’4” and 226 pounds) and constant pressure to the joint, including from wearing high heels or �ght-fi�ng shoes. (ECF 109-11 p. 29, htps://www.columbiaortho.org/pa�ent-care/special�es/foot-and-ankle/condi�ons-treatments/first-toe- arthri�s.) Hallux valgus is a deformity of the foot, also known as a bunion, which also can be caused by wearing improperly fi�ng shoes. htps://www.ncbi.nlm.nih.gov/books/NBK553092/. 6 Although the Court does not consider Dr. Arora’s report in determining this mo�on, it notes that Dr. Arora did not purport to offer any opinion regarding Plain�ff’s foot injury; rather, he assessed Plain�ff’s neck and spine and upper extremi�es. Further, he did not review any medical records from 2014 up to the date of the accident in LEGAL STANDARD “Summary judgment is warranted if ‘the pleadings, deposi�ons, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is en�tled to a judgment as a mater of law.” Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (quo�ng Fed. R. Civ. P. 56(c)). A fact is “material” if “it might affect the outcome of the suit under the governing law.” Royal Crown Day Care LLC v. Dep't of Health & Mental Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (quota�on marks and cita�on omited). “It is the movant's burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). However, “[w]hen the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essen�al element of the nonmovant’s claim.” Simsbury-Avon Pres. Club, Inc. v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009). Accordingly, summary judgment for the defendant is appropriate where the evidence in support of the plain�ff’s case is “so slight” that a jury, considering the record as a whole, cannot reasonably find for the plain�ff. Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994) (cita�on omited). In deciding the mo�on, the Court must resolve all ambigui�es and draw all inferences in favor of the nonmoving party. Jeffreys, 426 F.3d at 553. However, a mere “scin�lla of evidence” in support of the nonmoving party’s posi�on is insufficient to defeat summary judgment; rather, this case and appeared to be completely unaware of the mul�ple accidents and treatment Plain�ff received for her mul�ple accidents that occurred before the accident in this case. (ECF 109-21.) “there must be evidence on which the jury could reasonably find” for the nonmoving party. Id. (ci�ng Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). “[S]pecula�on and conjecture” are not sufficient to preclude the gran�ng of the mo�on. Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001). DISCUSSION Courts look to governing state law when assessing negligence claims brought against the federal government under the FTCA. Liranzo v. United States, 690 F.3d 78, 86 (2d Cir. 2012) (ci�ng 28 U.S.C. § 1346(b)(1)). Thus, New York substan�ve law governs in this case, because the accident at issue occurred in New York. 28 U.S.C. § 1346(b)(1). Under New York law, to establish a prima facie case of negligence, a plain�ff has the burden to demonstrate (1) a duty owed by the defendant to the plain�ff, (2) a breach of the duty, and (3) injury to the plain�ff proximately resul�ng from the breach. Dooley Iv. United States, 83 F.4th 156, 162 (2d Cir. 2023) (ci�ng Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 333 (1981)). Under New York law, expert tes�mony is required to establish the causa�on element of a negligence claim arising from a motor vehicle accident in order for a plain�ff to recover damages for non-economic loss related to a personal injury allegedly sustained in the accident. Rhone v. United States, 2007 WL 3340836, at *6 (S.D.N.Y. Nov. 9, 2007) (ci�ng Carter v. Full Service, Inc., 29 A.D.3d 342, 344 (1st Dep’t 2006)). Addi�onally, to survive summary judgment for noneconomic loss, a plain�ff must raise a genuine dispute of material fact as to whether she suffered a “serious injury” as a result of the car accident. Watson-Tobah v. Royal Moving & Storage, Inc., 2014 WL 6865713, at *11, 17 (S.D.N.Y. Dec. 5, 2014) (ci�ng N.Y. Ins. Law §5104(a)). A “serious injury” is defined, in relevant part, as a “permanent consequen�al limita�on of use of a body organ or member; significant limita�on of use of a body func�on or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substan�ally all of the material acts which cons�tute such person’s usual and customary daily ac�vi�es for” at least ninety day in the one hundred and eighty days immediately following the injury. N.Y. Ins. Law § 5102. Expert tes�mony also is required to establish a serious injury. Rhone, 2007 WL 3340836, at *6 (ci�ng Carter, 29 A.D.3d at 344). Because this Court excluded Plain�ff’s one expert, it evaluates the mo�on without that expert. Potter v. United States, 2020 WL 2836440, at *3 (S.D.N.Y. May 30, 2020) (cita�on omited) (“If a court excludes expert evidence . . . it must [] ‘make the summary judgment determina�on on a record that does not include that evidence.’”). In this case, the government has sa�sfied its burden of showing that there are no material facts in dispute and that it is en�tled to judgment as a mater of law. In par�cular, it has offered the expert opinion of Dr. Fischer who opined that Plain�ff’s post-accident MRIs showed “no evidence of new or acute changes” to Plain�ff’s neck or spine, that the injuries Plain�ff claims are atributable to pre-exis�ng condi�ons, and that any aggrava�on of those pre-exis�ng condi�ons has resolved. (Fischer Decl., Exh. B.) Further, the government points to medical records showing that all of the MRIs and X-rays taken immediately a�er the accident showed no acute injuries, sugges�ng that the accident in 2019 did not cause serious injury and was not the cause of Plain�ff’s injuries. In contrast, Plain�ff offers no expert opinions to show that she suffered a “serious injury” within the meaning of New York law or that the injuries she claims were proximately caused by the 2019 accident (as opposed to prior accidents or pre-existing conditions). As discussed above, absent an expert to demonstrate these critical components of her claim, summary judgment must be granted in favor of Defendant. Alim v. United States, 2023 WL 2929380, at *20 (S.D.N.Y. Apr. 13, 2023) (citing Watson-Tobah, 2014 WL 6865713, at *14) (“A plaintiff's self-serving testimony ‘is insufficient as a matter of law to raise a triable issue of proximate causation’” ina motor vehicle accident case); Rhone, 2007 WL 3340836, at *4 (quoting Cruz v. Pritt, 2000 WL 224106, at *3 (S.D.N.Y. Feb. 28, 2000)) (“In order to defeat summary judgment, plaintiff must rely on more than ‘subjective complaints of pain’ and must substantiate [her] claim with ‘objective medical evidence.’”). Additionally, Plaintiff does not argue, and has never asserted, that she has specific economic injuries such as lost wages that are recoverable in this action.’ CONCLUSION For the reasons set forth above, Defendant’s motion for summary is granted. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 106, enter judgment for Defendant, and close this case. SO ORDERED. Dated: March 13, 2024 Kethase H Ferber New York, New York KATHARINE H. PARKER United States Magistrate Judge ? Under applicable law, a plaintiff must show that she suffered more than $50,000 in economic loss to recover for any economic loss. NY. Ins. Law 5102(a), 5104; Ventra v. United States, 121 F. Supp. 2d 326, 332 (S.D.N.Y. 2000).