Gil v. W. Express, Inc.
| Decision Date | 14 September 2017 |
| Docket Number | 15 Civ. 9611 (JCM) |
| Parties | CLEMENCIA GIL, Plaintiff, v. WESTERN EXPRESS, INC. and ROBERT E. SMITH, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Clemencia Gil ("Plaintiff") commenced this diversity action against Defendant Western Express, Inc. ("Defendant Western Express") and Defendant Robert E. Smith ("Defendant Smith") (jointly "Defendants") to recover for personal injuries allegedly sustained as a result of a motor vehicle accident with a tractor-trailer owned and operated by Defendants. Before the Court is Defendants' Motion for Summary Judgment (the "Motion").1 (Docket Nos. 34, 372). Plaintiff opposed the Motion, (Docket No. 39), and Defendants replied by affirmation, (Docket No. 38).3 For the reasons that follow, the Motion is granted in part and denied in part.
The following facts are gathered from Defendants' statement filed pursuant to Rule 56.1 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York ("Rule 56.1"), (Docket No. 35), Defendant's supporting affidavits andexhibits, and the pleadings submitted by the parties in support of their contentions. The facts are construed in the light most favorable to Plaintiff as the party opposing summary judgment.
At approximately 9:00 a.m. on September 11, 2014, Plaintiff was driving her 2015 Toyota Corolla southbound across the Tappan Zee Bridge. (Gil Tr.4 at 10-13). After traversing the bridge and driving through the tollbooth in Tarrytown, New York, a tractor-trailer owned by Defendant Western Express and operated by Defendant Smith struck the right side of Plaintiff's vehicle (the "Accident"). (Id. at 13, 17-32; Pl. Ex.5 9).
After the Accident, Plaintiff and Defendant Smith pulled their vehicles to the side of the road. (Gil Tr. at 33-34). Shortly thereafter, Plaintiff's husband arrived at the scene and drove her to St. John's Hospital. (Id. at 46). There, she complained of neck, back and stomach pains. (Pl. Ex. 1 at 5). The emergency room physician administered a CT Scan of Plaintiff's cervical spine and abdomen. (Id. at 8-9). After the physician reviewed the results, Plaintiff testified that she was informed she had "no injury." (Gil Tr. at 53-54; Pl. Ex. 1 at 9). Plaintiff then left the hospital and, as directed, took Tylenol as needed to alleviate her pain. (Gil Tr. at 56).
On September 15, 2014, Plaintiff sought medical treatment at the Grand Concourse Clinic (the "Clinic"), where she made initial complaints of: (i) back, neck, knee and left-shoulder pains; (ii) headaches; and (iii) feeling tired, weak and dizzy. (Pl. Ex. 2 at 7; Gil Tr. at 59). Dr. Mitchell Zeren ("Dr. Zeren"), a chiropractor at the Clinic, conducted a physical examination ofPlaintiff. (Pl. Ex. 2 at 7-8).6 He found inflammation in the suboccipital region and the cervical spine. (Id. at 7). He also observed joint tenderness; rotation of the vertebrae in the cervical spine; posterior muscle spasm; spasm of the trapezius and supraspinatus muscles; and severe paraspinal muscle spasms predominantly in the thoracolumbar region. (Pl. Ex. 2 at 7). Dr. Zeren conducted several chiropractic tests, including: (i) a Kemp's Test, which produced lower back pain bilaterally; (ii) a Cervical Compression Test, which came out positive; (iii) a Jackson's Compression Test, which produced left-sided paresthesia; (iv) a Spurling's Test, which had positive results; (v) a Soto-Hall Test, which produced neck and back pain; (vi) a Fabere-Patrick Test, which was positive on the left; and (vii) a McMurray's Test, which was positive on the left knee producing medial pain. (Id.). Dr. Zeren also noted that the "SLR [Straight Leg Raising] test in the seated and supine position does produce paresthesias into both legs." (Id.). Finally, Dr. Zeren tested Plaintiff's range of motion in, inter alia, her cervical spine and compared the results against average ranges of motion, as follows:
Cervical Spine Plaintiff's AverageRange of Motion Normal AverageRange of Motion Percent Loss Flexion 40 60 33.3% Extension 30 50 40.0% Left Rotation 50 80 37.5% Right Rotation 60 80 25.0% Left Lateral Rotation 20 45 55.5% Right Lateral Rotation 25 45 44.4%
(Id. at 7-8). Ultimately, Dr. Zeren concluded that Plaintiff "suffered from derangement of the cervical and lumbar spines with disc displacement and radiculopathy which has caused pain, and significant and meaningful restrictions in motion to the involved body parts; as well as posttraumatic headaches . . . ." (Id. at 3). Based upon his examination, Dr. Zeren opined that these injuries were causally related to the Accident. (Id. at 4).
On October 22, 2014, Dr. Aric Hausknecht ("Dr. Hausknecht") conducted a neurological examination of Plaintiff and reviewed, inter alia, an MRI of Plaintiff's cervical spine taken on October 1, 2014. (Pl. Ex. 3 at 4). His findings revealed that Plaintiff suffered from disc pathology at "multiple levels in the cervical and thoracic region" and he recommended that "interventional pain management and/or spinal surgery should be considered." (Id. at 5). Dr. Hausknecht also conducted a nerve conduction velocity and electromyography test ("EMG"), which revealed evidence of radiculopathy. (Id. at 6). Dr. Hausknecht concluded that Plaintiff's condition was causally related to the Accident. (Id. at 5).
Plaintiff also saw her primary care physician, Dr. Maria Diaz ("Dr. Diaz"), sometime in October 2014. (Gil Tr. at 62). Plaintiff testified that she explained to Dr. Diaz that she had been in an accident, and so Dr. Diaz prescribed Naprosyn, which Plaintiff obtained and refilled "two or three" times. (Id. at 62-64). However, Dr. Diaz did not administer any other care for injuries allegedly sustained in the Accident because she was aware that Plaintiff was seeking treatment at the Clinic. (Id. at 64).
After visiting Dr. Diaz, Plaintiff returned to Dr. Zeren for a follow-up chiropractic examination on February 28, 2015. (Pl. Ex. 2 at 5). Dr. Zeren noted that Plaintiff was "not doing well" and "remain[ed] extremely symptomatic." (Id.). He ultimately diagnosed Plaintiff with "cervical derangement with C5-6, C6-7 disc herniation and C3-4, C4-5 disc bulging . . . thoracicderangement with T7-8 and T8-9 disc herniations . . . traumatic myalgia and myofasciitis . . . [and] traumatic injury to the left shoulder." (Id. at 6). Dr. Zeren also re-tested Plaintiff's range of motion in her cervical spine and lumbar spine, which again fell short of the normal average range of motion:
Cervical Spine Plaintiff's AverageRange of Motion Normal AverageRange of Motion Percent Loss Flexion 40 60 33.3% Extension 35 50 30.0% Left Rotation 50 80 37.5% Right Rotation 60 80 25.0% Left Lateral Rotation 20 45 55.5% Right Lateral Rotation 25 45 44.4%
Id. at 5-6). As in his initial report, Dr. Zeren concluded that these injuries were causally related to the Accident. (Id. at 6).
Plaintiff subsequently received treatment from Dr. Orsuville Cabatu ("Dr. Cabatu") at Electrodiagnostic and Physical Medicine on March 27, 2015. (Pl. Ex. 4 at 2). Upon his physical examination of Plaintiff, Dr. Cabatu observed spasms in the cervical and lumbar paraspinal muscles, and tenderness in the left trapezius, left scapula and lumbar paraspinal muscles. (Id. at 3-4). He also conducted cervical-spine and left-shoulder range-of-motion tests, which yielded the following results:
(Id. at 4-5). Dr. Cabatu diagnosed Plaintiff with sustained left cervical radiculopathy; disc herniation with impingement; disc bulging with impingement; cervical, lumbar and left-knee strains; and tension headaches. (Id. at 5). At the close of his examination, Dr. Cabatu prescribed Plaintiff physical therapy for her back, neck and shoulders two or three times per week.7 (Id. at 5) . He also directed Plaintiff to have MRIs taken of her left shoulder and lumbar spine. (Id. at 5-6) . Pursuant to Dr. Cabatu's instruction, Plaintiff went for an MRI of her lumbar spine on April 24, 2015. (Pl. Ex. 7). The results demonstrated bulging discs and left lateral herniation with impingement. (Id.). An MRI of Plaintiff's left shoulder taken on August 14, 2015 demonstrated extensive partial rotator cuff tear, a subchondral cyst and joint effusion. (Pl. Ex. 6).
Plaintiff visited Dr. Cabatu for a follow-up examination on December 22, 2015, at which time Dr. Cabatu opined that Plaintiff "remained symptomatic." (Pl. Ex. 4 at 6-7). He also re-tested Plaintiff's range of motion in her cervical spine and left shoulder:
(Id. at 7). At another follow-up examination on December 13, 2016, Dr. Cabatu again tested Plaintiff's range of motion in her cervical spine and left shoulder, and also tested Plaintiff's range of motion in her left knee:
Cervical Spine Plaintiff's AverageRange of Motion Normal AverageRange of Motion Percent Loss Flexion 40 50 20.0% Extension 50 60 16.7% Left Rotation 50 80 37.5% Right Rotation 60 80 25.0% Left Lateral Rotation...
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