Jourdan v. United States of America

MOTION for Summary Judgment

E.D.N.Y.August 23, 2016

U.S. Department of Justice United States Attorney Eastern District of New York SLR:SDE:MDH 271 Cadman Plaza East Brooklyn, New York 11201 August 23, 2016 BY ECF Honorable Sterling Johnson, Jr. United States District Judge Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201 Re: Jourdan v. United States, Civil Action No. 15-3177 (SJ)(VMS) Dear Judge Johnson: This Office represents the defendant in this action concerning an automobile accident involving plaintiff and a United States Postal Service (“USPS”) vehicle. We write, pursuant to Rule III(A) of Your Honor’s Individual Rules, to request a premotion conference concerning the defendant’s anticipated motion seeking summary judgment in light of plaintiff’s inability to establish that the soft tissue injuries he alleges constitute a “serious injury” pursuant to New York’s No-Fault Law. 1 Per Your Honor’s rules, attached is a preliminary Local Rule 56.1 Statement of Undisputed Material Facts for the Court’s review.2 Factual Overview Plaintiff, who was born on December 13, 1986, commenced this lawsuit pursuant to the Federal Tort Claims Act (“FTCA”). On June 27, 2014, at approximately 12:41 pm at the intersection of Nostrand Avenue and Tilden Avenue in Brooklyn, New York, plaintiff collided with a USPS vehicle (the “Accident”). Immediately before the Accident, both vehicles were travelling south on Nostrand Avenue. They stopped at the red light at the intersection of Nostrand and Tilden Avenues. Both intended to turn right onto Tilden Avenue. Plaintiff was immediately to the right of the USPS vehicle, however the parties dispute which lane each vehicle was in. Although plaintiff claims he was in the bus lane, the evidence demonstrates that he was, in fact, in the parking lane immediately to the right of the bus lane and the USPS vehicle 1 The undersigned will be out of the Office until September 9, 2016, and therefore respectfully requests that the premotion conference be scheduled for a date thereafter. 2 Defendant reserves its right to supplement or amend this statement as necessary for the final motion. Case 1:15-cv-03177-SJ-VMS Document 21 Filed 08/23/16 Page 1 of 3 PageID #: 86 Honorable Sterling Johnson, Jr. August 23, 2016 Page 2 was in the bus lane.3 When the light turned green, both vehicles proceeded to turn right onto Tilden Avenue. The front driver’s side of plaintiff’s vehicle collided with the passenger side of the USPS vehicle. Plaintiff claims he sustained muscle spasms in his cervical and lumbar spine and herniation and disc bulge in his lumbar spine. Immediately after the accident, plaintiff reported to police that he was not in any pain and did not need medical attention. Two days later, he went to the emergency room complaining of neck and back pain. He was examined and left the emergency room in less than an hour with a diagnosis of muscle spasm in his back. He was given prescriptions for 600 mg of Motrin and Flexeril (a muscle relaxant) and instructed to follow up with his primary care physician within the next two to three days. Although a dose of Motrin was administered while he was in the emergency room, he was not given Flexeril because he was going to work after leaving the hospital. Plaintiff works full-time in a residential facility that houses individuals with development disabilities and/or mental health issues. His responsibilities include assisting those individuals with their activities of daily living. Plaintiff did not miss any work as a result of his alleged injuries. The only activities he identified as being limited by his alleged injuries are playing basketball, working out, running, and going to the movies. Other than his initial treatment in the emergency room two days post-Accident, plaintiff received just four months of minimal treatment for his alleged injuries. That treatment included two visits to Dr. Boris Kleyman, who diagnosed plaintiff based largely on his review of MRI reports without considering the relevant objective evidence such as plaintiff’s history of scoliosis, involvement in a prior accident, and performance of his activities of daily living. Plaintiff also had limited physical therapy which rarely included therapeutic exercises. Plaintiff did not receive any medical treatment after October 2014. He did not regularly take prescription medications to address any issues related to his alleged injuries. Rather, he took over the counter ibuprofen on occasion. During his deposition, he testified that he unilaterally decided to cease all treatment because he did not feel he was improving. Plaintiff Cannot Establish That He Suffered a “Serious Injury” Pursuant to New York State law, which governs this FTCA case, to recover for pain and suffering stemming from injuries resulting from an automobile accident, the plaintiff must establish that he suffered a “serious injury.” N.Y. Ins. Law § 5104(a). As relevant here, serious injury is defined as: (1) “permanent consequential limitation of use of a body organ or member” or (2) “significant limitation of use of a body function or system.” N.Y. Ins. Law § 5102(d). These categories of serious injury must be construed “narrowly and in accordance with the statute’s aim to limit personal injury litigation arising from automobile accidents.” See, e.g., Gex v. Limontas, 2006 WL 842404, at *4 (E.D.N.Y. March 29, 2006). The injury at issue must be more than a “minor, mild, or slight limitation.” Id. 3 Pursuant to the relevant Rules of the City of New York concerning the use of bus lanes, vehicles other than buses are permitted to use the bus lane “in order to make the first available right hand turn. . . .” R.C.N.Y. Title 34, Chp. 4, § 4-12(m) (2012). Case 1:15-cv-03177-SJ-VMS Document 21 Filed 08/23/16 Page 2 of 3 PageID #: 87 Honorable Sterling Johnson, Jr. August 23, 2016 Page 3 Plaintiff cannot establish that he suffered any permanent or significant limitation as a result of the neck and back injuries he alleges. At most, plaintiff sustained minor injuries that temporarily limited some of his recreational activities, such as playing basketball and going to the movies. However, plaintiff’s significant activities of daily living were not impacted at all. Tellingly, plaintiff did not miss any work as a result of his alleged injuries. He did not have to rely on prescription medications for pain relief. And, he had only minimal medical treatment which he voluntarily decided to cease after just four months. Thus, he cannot satisfy his burden of establishing that he suffered a serious physical injury and the United States should be granted summary judgment as a result. Additionally, in the unlikely event the Court concludes there is objective medical proof in support of plaintiff’s claim that he sustained a serious injury, the United States is still entitled to summary judgment. It is well-settled that “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.” See, e.g., Pommells v. Perez, 797 N.Y.S.2d 380, 383 (N.Y. Ct. of Appeals 2005) (noting that soft tissue injury claims should be viewed with increased skepticism). Here, there are multiple contributory factors including, but not limited to, plaintiff’s complete cessation of treatment for what he claims are permanent injuries after just four months and plaintiff’s preexisting scoliosis – a condition that is known to cause the type of pain plaintiff complains of. Therefore, the United States is entitled to summary judgment on this basis as well. Accordingly, defendant respectfully requests that the Court schedule a premotion conference so that the defendant may seek leave to file its motion for summary judgment. Respectfully submitted, ROBERT L. CAPERS United States Attorney By: /s/ Melanie D. Hendry Assistant United States Attorney (718) 254-6040 Case 1:15-cv-03177-SJ-VMS Document 21 Filed 08/23/16 Page 3 of 3 PageID #: 88 SLR:SDE:MDH UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------X JONATHAN JOURDAN, Plaintiff, - against - UNITED STATES OF AMERICA, Defendant. -------------------------------------------------------------X DEFENDANT’S STATEMENT OF UNDISPUTED MATERIAL FACTS PURSUANT TO LOCAL RULE 56.1 Civil Action No. 15-3177 (SJ) (VMS) Defendant United States of America, by and through its attorney, Robert L. Capers, United States Attorney, Eastern District of New York, Melanie D. Hendry, Assistant United States Attorney, of counsel, submits the following statement of material facts to which the United States contends there exists no genuine issue to be tried. RELEVANT FACTUAL BACKGROUND 1. This case stems from an automobile accident between plaintiff’s vehicle and a United States Postal Service truck that occurred on June 27, 2014 at approximately 12:41 pm at the intersection of Nostrand Avenue and Tilden Avenue, Brooklyn, New York (the “Accident”). Police Accident Report. 2. The front driver’s side of plaintiff’s vehicle came into contact with the passenger side of the postal vehicle when both vehicles were making a right turn from Nostrand Avenue onto Tilden Avenue. Police Accident Report. 3. Plaintiff was born on December 13, 1986. Transcript of Deposition of Jonathan Jourdan (“Jourdan Dep.”), p. 16. Case 1:15-cv-03177-SJ-VMS Document 21-1 Filed 08/23/16 Page 1 of 7 PageID #: 89 2 4. Since approximately 2008, plaintiff has been employed full-time by PSCH. PSCH is a residential facility that houses individuals with developmental disabilities and/or mental health issues. Jourdan Dep., pp. 29, 37. 5. Plaintiff’s duties include supervising staff and assisting PSCH residents with their activities of daily living. Jourdan Dep., pp. 36-37. 6. Plaintiff did not miss any work as a result of the injuries he claims he sustained in the Accident. Jourdan Dep., p. 31. 7. Plaintiff has a history of scoliosis that pre-dates the Accident. Declaration of Dr. Jonathan S. Garay (the “Garay Declaration”); Doshi Diagnostic Chest X-Ray Report of Dr. Mark Shapiro, dated January 19, 2010. PLAINTIFF’S ALLEGED INJURIES 8. Plaintiff claims that as a result of the Accident he sustained: (1) muscle spasms in his cervical spine and lumbar spine, (2) herniation at the L2-L3 level of his lumbar spine, and (3) disc bulge at the L4-L5 level of his lumbar spine. Plaintiff’s Response to Interrogatory No. 8, dated November 20, 2015. 9. Plaintiff did not feel any pain immediately after the Accident, did not report any injuries to the police officers who responded to the Accident scene, and did not request or obtain medical attention on the day of the Accident. Police Accident Report, Jourdan Dep., pp. 101, 103. 10. The first time plaintiff felt any pain was two days following the Accident. At that time, he felt sharp pain, stiffness, and throbbing in the middle of his neck, radiating to his right shoulder. The pain comes and goes and he still feels it on occasion, but not every day. Jourdan Dep., pp. 146-149. Case 1:15-cv-03177-SJ-VMS Document 21-1 Filed 08/23/16 Page 2 of 7 PageID #: 90 3 11. Beginning two days after the Accident, plaintiff felt throbbing pain and stiffness in his lower middle back that radiates to his buttocks. The pain comes and goes and he still feels it on occasion, but not every day. Jourdan Dep., pp. 149-151. 12. Plaintiff testified at his deposition that he is no longer able to play basketball, run, work out, or go to the movies because his back hurts. Jourdan Dep., pp. 35-36. 13. Plaintiff first received medical treatment for injuries he claims are related to the Accident two days after the Accident. He last received medical treatment for injuries he claims are related to the Accident in or around October 2014. Garay Declaration. PLAINTIFF’S LIMITED MEDICAL TREATMENT A. Kingsbrook Jewish Medical Center Emergency Department 14. Plaintiff first sought medical treatment on June 29, 2014, at the Kingsbrook Jewish Medical Center Emergency Department. Plaintiff was treated and released in less than an hour. Jourdan Dep., pp. 151-152; Kingsbrook Preliminary ED Chart, p. 1. 15. Upon examination, plaintiff was found to be in no obvious discomfort, there was tenderness in his neck, and there was back pain on deep palpitation only, but not when light pressure was applied. Kingsbrook Preliminary ED Chart, p. 3. 16. Plaintiff was diagnosed with muscle spasms of the back and was advised to follow up with his primary care physician within the next two to three days. He was given 600 mg of Motrin and prescriptions for Motrin and Flexeril (a muscle relaxant). Flexeril was not administered while he was at Kingsbrook because plaintiff was going to work after leaving the hospital. Kingsbrook Preliminary ED Chart, pp. 3-4. Case 1:15-cv-03177-SJ-VMS Document 21-1 Filed 08/23/16 Page 3 of 7 PageID #: 91 4 17. Plaintiff has not regularly taken any medication for injuries he claims are related to the Accident. Plaintiff has occasionally taken over the counter ibuprofen. Jourdan Dep., pp. 159, 163, 170; Garay Declaration. B. Dr. Boris Kleyman 18. Plaintiff was first examined by Dr. Boris Kleyman on or about June 30, 2014. He was examined by Dr. Kleyman a total of two times. Plaintiff stopped seeing Dr. Kleyman because he did not feel his pain was improving. Jourdan Dep., p. 164-165; Boris Kleyman Final Narrative Report, dated November 26, 2014 (the “Kleyman Report”). 19. Dr. Kleyman diagnosed plaintiff with cervical sprain/strain, muscle spasm, lumbar sacral sprain/strain, disc bulge at L4-L5 level, and disc herniation at L2-L3 level. It was his opinion that as of his November 26, 2014 report, plaintiff had a moderate response to physiotherapy. He concluded that plaintiff has a permanent partial impairment/disability. He recommended that plaintiff avoid excessive bending, lifting, sitting, and standing for prolonged periods. Kleyman Report, p. 8. C. Physical Therapy 20. Plaintiff had physical therapy approximately two to three times per week during the period June 30, 2014 through October 2, 2014. Jourdan Dep., pp. 172-174; Physical Therapy Progress Notes. 21. The majority of plaintiff’s physical therapy sessions consisted of application of hot moist packs, electrical stimulation, and therapeutic massage. Plaintiff rarely did therapeutic exercises during his physical therapy sessions, and the last time he did so was July 22, 2014. Physical Therapy Progress Notes; Jourdan Dep., p. 173. 22. Plaintiff stopped going to physical therapy in October 2014, because he did not believe his pain was improving. Jourdan Dep., p. 174. Case 1:15-cv-03177-SJ-VMS Document 21-1 Filed 08/23/16 Page 4 of 7 PageID #: 92 5 D. MRI Results 23. On July 17, 2014, plaintiff had MRIs of his lumbar spine and cervical spine. Doshi Diagnostic Imaging Reports of Dr. Michael Greene, dated July 17, 2014. 24. The radiologist reported that the MRI of plaintiff’s cervical spine showed no evidence of herniation or disc bulge but did show straightening of the proximal mid cervical spine indicative of muscular spasm. Doshi Diagnostic Imaging Report of Dr. Michael Greene, dated July 17, 2014. 25. The MRI images of plaintiff’s cervical spine show a C2-3 disc desiccation consistent with preexisting degenerated disc and minimal disc bulging. There was no nerve root or spinal cord impingement and no MRI signal changes suggesting either a recent tear of the disc annulus or that the disc bulging was recent. Garay Declaration. 26. The radiologist reported that the MRI of plaintiff’s lumbar spine showed evidence of L2-L3 level herniation, L4-L5 level disc bulge, and straightening of the normal lumbar lordosis indicative of muscle spasm. Doshi Diagnostic Imaging Report of Dr. Michael Greene, dated July 17, 2014. 27. The MRI images of plaintiff’s lumbar spine show a pre-existing developmental scoliotic curve. Garay Declaration. 28. The MRI images of plaintiff’s lumbar spine did not show any signs that the L4-5 disc bulging had recently occurred. Garay Declaration. E. EMG Results 29. On July 31, 2014, plaintiff had EMGs of his upper and lower extremities and related paraspinal muscles. The results were normal and did not indicate any nerve damage. EMG Reports, dated July 31, 2014 Case 1:15-cv-03177-SJ-VMS Document 21-1 Filed 08/23/16 Page 5 of 7 PageID #: 93 6 OCTOBER 2, 2014 EXAMINATION BY DR. THOMAS J. MCLAUGHLIN 30. On or about October 2, 2014, at the request of his no-fault insurance carrier, plaintiff had a chiropractic and acupuncture examination administered by Dr. Thomas J. McLaughlin. Dr. Thomas J. McLaughlin Report, dated October 10, 2014 (the “McLaughlin Report”). 31. Dr. McLaughlin noted that plaintiff reported improved but occasional pain in his neck and back, denied radiation to any other region, and denied using any medications. McLaughlin Report. 32. Dr. McLaughlin further noted that plaintiff reported to him that he had been involved in an automobile accident in or around 2008, injuring his neck and back, but that plaintiff reported receiving treatment for those injuries and they were resolved before the Accident. McLaughlin Report. 33. Upon examination, Dr. McLaughlin found that plaintiff was in no apparent distress or discomfort, no spasms or tenderness were noted, and plaintiff’s range of motion was normal. McLaughlin Report. 34. Dr. McLaughlin diagnosed plaintiff with “resolved cervical, thoracic and lumbosacral sprain/strain injuries,” and concluded that there was no need for further chiropractic, Case 1:15-cv-03177-SJ-VMS Document 21-1 Filed 08/23/16 Page 6 of 7 PageID #: 94 7 massage therapy care or acupuncture and that there were no restrictions on plaintiff’s employment or activities of daily living. McLaughlin Report. Dated: Brooklyn, New York August 23, 2016 ROBERT L. CAPERS United States Attorney Eastern District of New York Counsel for Defendant 271 Cadman Plaza East Brooklyn, New York 11201 By: /s/ Melanie D. Hendry Assistant United States Attorney (718) 254-6040 TO: Jeremy S. Ribakove, Esq. 31-19 Newtown Avenue Seventh Floor Astoria, New York 11102 (718) 746-3440 Case 1:15-cv-03177-SJ-VMS Document 21-1 Filed 08/23/16 Page 7 of 7 PageID #: 95