Summary
noting that the portions of plaintiff's claim relating to her inability to play volleyball or ride a bicycle do not qualify for the purposes of claiming a serious injury
Summary of this case from Covey v. SimontonOpinion
99 Civ. 10285 (SAS)(JCF)
July 11, 2001
MEMORANDUM AND ORDER
Brenda Rookwood brings this action pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2671-80 (the "FTCA"), seeking to recover damages for injuries allegedly sustained in a motor vehicle accident with a postal truck on July 15, 1998. The United States has moved for summary judgment on the grounds that the plaintiff did not sustain a serious injury as required by New York's Comprehensive Motor Vehicle Insurance Reparations Act, N.Y. Ins. Law §§ 5101 et seq. (the "No Fault Law"). The government's motion is denied because the plaintiff has raised a triable issue of fact.
Background
During the afternoon of July 15, 1998, Ms. Rookwood was stopped at the intersection of East Tremont and Dogwood Avenues in the Bronx, New York, waiting to make a U-turn, when a car driven by Miguel Valdez struck the back of her vehicle. (Deposition of Brenda Rookwood ("Pl. Dep."), attached as Exh. B to Declaration of Michael M. Krauss ("Krauss Decl."), at 9, 15-16, 23-24). Mr. Valdez's car, in turn, had been struck and propelled forward by a United States Postal Service vehicle driven by George Lett, a Postal Service employee. (Certification of Mary Jo White attached as Exh. C to Krauss Decl.; Pl. Dep. at 27-28).
Upon impact, Ms. Rookwood struck her right side on the seat and her right knee on the dashboard. (Pl. Dep. at 25, 45). The plaintiff complained of neck and back pain to the emergency medical technicians who assisted her in exiting the car. (Pl. Dep. at 31, 46-47). They placed her on a stretcher, gave her a neck brace, and transported her to Jacobi Medical Center. (Pl. Dep. at 31, 46-47). Upon arriving at the hospital, Ms. Rookwood again complained of pain. The plaintiff left the hospital shortly after her neck and back were x-rayed and she was given non-prescription pain medication. (Pl. Dep. at 32).
The plaintiff treated with Dr. Daniel J. Feuer for her injuries following the accident. Dr. Feuer, who is a neurologist, examined the plaintiff on five occasions in 1998 and on one occasion in 2000. He diagnosed her as having cervical radiculopathy and mild right carpal tunnel syndrome. (Affirmation of Daniel J. Feuer, M.D. dated April 3, 2001 ("Feuer Aff."), attached to Plaintiff's Memorandum of Law in Opposition ("Pl. Memo."), ¶ 5).
Radiculopathy is a disorder of the nerve roots. Dorland's Illustrated Medical Dictionary 1405 (27th ed. 1988).
Carpal tunnel syndrome is "a complex of symptoms resulting from compression of the median nerve in the carpal tunnel, with pain and burning or tingling paresthesias in the fingers and hand, sometimes extending to the elbow." Id. at 1632.
The plaintiff was also examined by two physicians selected by the government, Dr. Alan J. Brown and Dr. Robert J. Orlandi. Dr. Brown, also a neurologist, determined that the plaintiff suffered from soft tissue injuries but found insufficient evidence of either radiculopathy or carpal tunnel syndrome. (Report of Alan Brown, M.D., dated Nov. 22, 2000 ("Brown Report"), attached as Exh. C to Declaration of Alan Brown, M.D. dated February 23, 2001 ("Brown Decl."), at 2-3). Dr. Orlandi conducted a full orthopedic examination and arrived at a similar diagnosis as the one made by Dr. Brown: he found a resolved cervical sprain and no permanent disabilities. (Report of Robert J. Orlandi, M.D., F.A.C.S., dated July 18, 2000, attached as Exh. P to Krauss Decl., at 2).
Discussion
A. Standard for Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "the pleadings, depositions, 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 entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Andy Warhol Foundation For the Visual Arts, Inc. v. Federal Insurance Co., 189 F.3d 208, 214 (2d Cir. 1999); Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995); Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993). The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party meets that burden, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), by "a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
In assessing the record to determine whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995). But the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," Anderson, 477 U.S. at 249 (citation omitted), and grant summary judgment where the nonmovant's evidence is conclusory, speculative, or not significantly probative. Id. at 249-50. "The litigant opposing summary judgment may not rest upon mere conclusory allegations or denials, but must bring forward some affirmative indication that his version of relevant events is not fanciful." Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir. 1997) (internal quotations and citations omitted); see also Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (a nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts"); Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995) (nonmovant "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible"); Howard Johnson International, Inc. v. HBS Family, Inc., No. 96 Civ. 7687, 1998 WL 411334, at *3 (S.D.N Y July 22, 1998). In sum, if the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Electric Industrial Co., 475 U.S. at 587 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288 (1968)); see also Montana v. First Federal Savings and Loan Association of Rochester, 869 F.2d 100, 103 (2d Cir. 1989).
B. The FTCA and No Fault Law
Under the Federal Tort Claims Act, the government's liability is determined by the law of the state where the accident occurred. Ventra v. United States, 121 F. Supp.2d 326, 332 (S.D.N.Y. 2000).
In this case, New York's No-Fault Law governs, because the accident occurred in this state.
The No-Fault Law provides for tort recovery for economic loss that exceeds $50,000. N.Y. Ins. Law §§ 5102(a), 5104. Economic loss covered in the statute encompasses medical costs, lost wages, and reasonable and necessary expenses. N.Y. Ins. Law § 5102(a). Here, the plaintiff incurred no out-of-pocket medical expenses, but she lost two weeks of pay when she missed work following the accident. (Pl. Dep. at 8). Based on her wage rate at that time, Ms. Rookwood incurred $450 in lost pay. (Pl. Dep. at 8). Because the plaintiff's economic losses were well below $50,000, she is not entitled to recover them.
The statute also allows recovery for non-economic loss, i.e. pain and suffering, if the plaintiff sustained a "serious injury" as defined under the No-Fault Law. N.Y. Ins. Law §§ 5102(d), 5104(a). The categories of "serious injury" relevant to this case include (1) permanent loss of use of a body organ, member, function or system; (2) permanent consequential limitation of use of a body organ or member; and (3) "significant limitation of use of a body function or system." N.Y. Ins. Law § 5102(d). In the first instance the court must decide as a matter of law whether the plaintiff has met this threshold issue of serious injury. Licari v. Elliott, 57 N.Y.2d 230, 237, 455 N.Y.S.2d 570, 573 (1982); see also Ventra, 121 F. Supp.2d at 333.
1. Significant Limitation of Use of a Body Function or System
To establish a serious injury based on a significant limitation of use of a body function or system, the significant limitation must be supported by objective medical evidence; subjective complaints of pain are insufficient. Ventra 121 F. Supp.2d at 333-34. Additionally, the limitation must be more than "a minor, mild or slight limitation of use." Licari, 57 N.Y.2d at 236, 455 N.Y.S.2d at 573. The plaintiff must demonstrate substantial limitation in the primary activities of her life. See Padron v. Hood, 124 A.D.2d 718, 720, 508 N.Y.S.2d 472, 473 (1986). The defendant maintains that the uncontroverted facts demonstrate that Mr. Rookwood has neither come forward with objective medical evidence of a significant limitation nor demonstrated that she is substantially limited in her usual activities.
In their moving papers, the defendants maintain that the plaintiff did not suffer a significant limitation, permanent consequential limitation, or permanent loss. However, the plaintiff only argues permanent loss in her answer. Although this(testing results not objective because they were based solely on plaintiff's subjective complaints of pain), and conflicting medical would normally preclude the Court from addressing the apparently abandoned theories, see Zavialov v. Morgan, No. 96-CV-5705, 2000 WL 133846, at *3 n. 2 (S.D.N.Y. Jan. 13, 2000); Oberly v. Bangs Ambulance, Inc., No. 72, slip op., 2001 WL 463231 (N.Y. May 3, 2001), I will not penalize the plaintiff but will address all viable theories on the merits.
a. Objective Medical Evidence
The defendant argues that the evidence supporting a diagnosis of carpal tunnel syndrome was inconclusive and that there was no objective medical evidence supporting a radiculopathy diagnosis. While the record contains only subjective complaints in support of a diagnosis of radiculopathy, it does have objective medical evidence supporting a diagnosis of carpal tunnel syndrome.
Dr. Feuer, a neurologist, examined and treated the plaintiff on five occasions in 1998. He concluded that she suffered form mild right carpal tunnel syndrome based on EMG/NCV testing of the plaintiff's upper extremities performed on August 3, 1998, as well as clinical evidence of a positive Tinel sign and decreased sensation in the right index finger based on an examination on November 16, 2000. Feuer Aff. at ¶¶ 3-4). The neurologist hired by the defendant, Dr. Alan J. Brown, countered that "[a] substantial percentage of patients without clinical carpal tunnel syndrome, have evidence on EMG examination of right median nerve dysfunction at the wrist so that this is in my judgment an incidental finding on this examination." (Brown Report at 3). Clearly an EMG examination is an objective test, cf. Dugan v. Sprun, 280 A.D.2d 736, 737, 720 N.Y.S.2d 276, 277 (3d Dep't 2001) conclusions drawn from such evidence preclude summary judgment. "It is not for the Court to decide which expert opinion is more persuasive. The conflicting opinions `merely create a credibility question for the jury to resolve . . . and plaintiff is entitled to the benefit of every favorable inference.'" Zabel v. Olsen, 895 F. Supp. 44, 47 (S.D.N.Y. 1995) (citation omitted); see also Smalls v. Izzo, No. 94 Civ. 4047, 1996 WL 384914, at *4 (S.D.N Y July 10, 1996) ("The contradictory diagnoses made by defendant's examining physician . . . do not negate plaintiff's evidence. At best, [the defendant's doctor's] report gives rise to questions of credibility and highlights a genuine issue of material fact appropriate for resolution at trial."). Therefore, the plaintiff has established that objective medical evidence may support a diagnosis of carpal tunnel syndrome.
In contrast, the record does not contain objective medical evidence supporting a diagnosis of radiculopathy. Rather, Dr. Feuer admitted that he founded his diagnosis on "complain[ts] of pain radiating from her neck to the right arm" and "tenderness over the right shoulder area as well as right cervical spine." He also determined that Ms. Rookwood had a "depressed right biceps reflex," although that was not the primary basis for his diagnosis. (Deposition of Dr. Daniel Feuer dated Dec. 11, 2000 ("Feuer Dep."), attached as Exh. E to Krauss Decl., at 81-82). While the reflex test may be construed as an objective test, unlike the subjective and self-reported findings, it did not form the basis of Dr. Feuer's diagnosis, and the doctor conceded that it may have been due to shoulder tenderness rather than to any radiculopathy. (Feuer Dep. at 78). Furthermore, Dr. Feuer admitted that the objective tests performed — EMG and MRI — did not support the diagnosis. (Feuer Dep. at 82). See Ventra, 121 F. Supp.2d at 334 ("Subjective complaints of pain, unsupported by credible medical evidence, cannot form the basis of a significant limitation"). Therefore, the plaintiff has not established through objective medical evidence that she suffers from radiculopathy.
Dr. Feuer did, however, intimate that the objective tests may not have discerned the radiculopathy because they were administered too soon after the accident. (Feuer Dep. at 82). While this may be the case, the plaintiff still must satisfy her burden and come forward with evidence supporting her claim.
b. Nature of Limitation or Limitation on Primary Activities
The remaining issue is whether the plaintiff's carpal tunnel syndrome significantly limits her primary activities. The government maintains that the only two limitations conceivably related to carpal tunnel syndrome are the plaintiff's difficulty writing receipts at work and playing softball because of tingling pain in her hand when she attempts to grip the bat. (Government's Memorandum of Law at 23). However, the plaintiff submitted an affidavit detailing various other limitations: pain when she writes at all, which she is required to do on a daily basis at work; inability to perform activities that involve the use of pressure or force in her wrist, including laundry, washing, and ironing; and decreased capacity to lift objects with her right hand. (Affidavit of Brenda Rookwood, attached to Pl. Memo., ¶¶ 4-5).
It is unnecessary to address whether the alleged radiculopathy creates any limitations because its existence is not supported by objective medical evidence.
In addition, the plaintiff also maintains that she is unable to play volleyball or ride a bicycle. (Pl. Dep. at 41-42). While these limitations may be due to carpal tunnel syndrome, inability to fully participate in recreational activities does not qualify as a serious injury. See Cooper v. Dunn, No. 99 CV 6903, 2001 WL 138864, at *11 (E.D.N.Y. Jan. 2, 2001).
In support of its position, the defendant cites to several cases where the plaintiff suffered a markedly less severe injury. For example, in Horan v. Mirando, 221 A.D.2d 506, 507, 633 N.Y.S.2d 402, 403 (2d Dep't 1995), the plaintiff missed three weeks of work and could not perform hammering or nailing work for only four months. By contrast, in this case, Ms. Rookwood is allegedly totally unable to perform many household chores and suffers daily pain at work three years after the accident. Other cases mentioned by the defendant are likewise distinguishable. See Patrello v. United States, 757 F. Supp. 216, 221-22 (S.D.N.Y. 1991) (granting summary judgment despite plaintiff's intermittent pain while sitting and alleged inability to scrub floors or iron clothes for longer than two hours); Masi v. Kiss, 114 A.D.2d 442, 443, 494 N.Y.S.2d 358, 359 (2d Dep't 1985) (plaintiff's "discomfort ha[d] not been shown to significantly affect his ability to work full[-]time or pursue any of his normal activities" where he was able to return to work one week after accident); Licari, 57 N.Y.2d 230 at 238-39, 455 N.Y.S.2d at 574-75 (plaintiff returned to work within twenty-four hours and could not do household chores due to headaches every two to three weeks). Furthermore, in none of these cases did the plaintiff offer objective medical evidence of an injury. Patrello, 757 F. Supp. at 222; Masi, 114 A.D.2d at 443, 494 N.Y.S.2d at 358-59; Licari, 57 N.Y.2d at 239, 455 N.Y.S.2d at 575.
2. Permanent Consequential Limitation of Use of a Body Organ or Member and Permanent Loss of Use of a Body Organ, Member, Function or System
It is unnecessary to address whether the plaintiff suffers from a serious injury due to a permanent consequential limitation or permanent loss, because the plaintiff can defeat the defendant's motion on the basis of a significant limitation. However, I would note that the plaintiff's injury would most likely not meet either of these standards. See Passarelle v. Burger, 278 A.D.2d 294, 294-95, 717 N.Y.S.2d 348, 349 (2d Dep't 2000) (carpal tunnel syndrome fails to meet threshold criteria for permanent consequential limitation); O'Reilly v. Nelson, 261 A.D.2d 372, 373, 689 N.Y.S.2d 221, 222 (2d Dep't 1999) (same); see also Oberly, 2001 WL 463231 (claimant must have total loss of use of body organ, member, function or system to qualify for permanent loss of use).
Conclusion
For the reasons set forth above, the defendants' motion for summary judgment is denied. The parties shall submit a joint pretrial order by August 12, 2001.
SO ORDERED.