Lopez v. United States

• Decision Date: 01 June 2018
• Docket Number: 1:16–cv–07094 (SDA)
• Citation: 312 F.Supp.3d 390
• Parties: LOPEZ, Plaintiffs, v. UNITED STATES of America et al., Defendants.
• Court: U.S. District Court — Southern District of New York

312 F.Supp.3d 390

LOPEZ, Plaintiffs,

v.UNITED STATES of America et al., Defendants.

1:16–cv–07094 (SDA)

United States District Court, S.D. New York.

Signed June 1, 2018

LeRoi Callwell Johnson, Law Office of Leroi C. Johnson PLLC, Buffalo, NY, Jared Roger Rice, Rice & Rice Attorneys at Law, New Rochelle, NY, for Plaintiffs.

Brandon Herbert Cowart, Jennifer Ann Jude, Talia Kraemer, U.S. Attorney's Office, New York, NY, for Defendants.

OPINION AND ORDER

STEWART D. AARON, United States Magistrate Judge

Plaintiff, Astrid Lopez ("Plaintiff" or "Lopez"), filed suit against defendant, United States of America (the "United States" or "Defendant"), pursuant to the Federal Torts Claim Act (the "FTCA"), 28 U.S.C. §§ 1346(b) and 2671, et seq. , for alleged injuries she suffered in an automobile accident on September 13, 2013. Lopez alleges that Oliver Jones III ("Jones"), a now-retired employee of the United States who was driving a van, collided with her vehicle and that Jones was negligent in his operation of the van, causing the accident and her injuries. In turn, Defendant alleges that Lopez's own actions caused the accident and that, in any event, her injuries are not serious.

The parties consented to the jurisdiction of a United States Magistrate Judge, pursuant to 28 U.S.C. § 636, and the Court conducted a bench trial from May 29, 2018 through May 31, 2018. Having considered all of the evidence and assessed the credibility of the witnesses, the Court makes the following findings of fact and reaches the following conclusions of law pursuant to Federal Rule of Civil Procedure 52. For the reasons set forth below, the Court finds that Lopez has not proven that she suffered a "serious injury" under the governing provisions of the New York Insurance Law. Nor has she proven economic loss or damages. Thus, judgment shall be entered in favor of the United States.

FINDINGS OF FACT

I. The Accident ¹

On September 13, 2013, Plaintiff's car and Jones's van collided in the intersection of 11th Avenue and West 41st Street in Manhattan, New York. (JPTO,² ECF No. 68, at 5.) At the time of the September 13, 2013 motor vehicle accident, Jones was operating the van in the course of his employment by the United States. (Id. ) Plaintiff contends that Jones entered the intersection against a red traffic signal, and Jones contends that Plaintiff entered the intersection against a red traffic signal while using her cellphone. (Id. , at 2–3.) After the accident occurred, an ambulance arrived at the intersection, but Plaintiff refused medical attention. (Tr. at 44.³ ) Immediately following the accident, Plaintiff did not feel any pain and was able to walk away. (Tr. at 83–84; Ex. 6 at KO 2.⁴ )

II. Plaintiff's Medical Condition

A. Plaintiff's Medical Treatment

Plaintiff first sought medical treatment based on the accident when she went to Clara Maass Hospital, approximately 48 hours after the accident. (Tr. at 85; Ex. 4 at CM 6; Ex. 6 at KO 2.) When Plaintiff was evaluated at Clara Maass Hospital on September 15, 2013, she complained of "left-sided body pain from neck down to left flank area." (Ex. 4 at CM 14.) On examination, the doctor found that she had full range of motion in her neck, with pain, and that her back was tender. (Id. at CM 15.) X-rays were taken of Plaintiff's spine, which were normal. (Id. at CM 40.) The doctor prescribed her Naprosyn

, Percocet and Flexeril.⁵ (Ex. 4 at CM 15–16.) Plaintiff was also given an injection of Toradol.⁶ (Ex. 4 at CM 38.) At Clara Maass Hospital, Plaintiff was given the following diagnoses: "motor vehicle crash—minor"; "cervical strain"; "MVA [motor vehicle accident] restrained driver"; and "muscle strain." (Ex. 4 at CM 44.) Plaintiff was released from Clara Maass Hospital about three hours after she arrived. (Tr. at 86.)

After visiting Clara Maass Hospital on September 15, 2013, Plaintiff did not seek medical treatment for any injuries allegedly suffered as a result of the accident until October 18, 2013.⁷ (Tr. at 87; Ex. 5 at PZ 139.) On that day, Plaintiff sought treatment for her alleged injuries from chiropractor Dr. Peter Ponzini, whom Plaintiff saw because she was sent to him by her previous lawyer. (Tr. at 89.) Dr. Ponzini provided physical therapy to Plaintiff and also referred her to other doctors who she started seeing in November 2013, about two months after the accident. (Id. at 87, 89.) Allstate Insurance Company paid these doctors' bills. (Id. at 89.)

The medical records of the various doctors to whom Dr. Ponzini referred Plaintiff are sometimes inconsistent with one another, and appear to contain certain assessments that are unsupported. Nevertheless, the Court sets forth below a summary of the medical records because, even if they all are taken at face value, none of them individually or collectively supports a finding that Plaintiff suffered a serious injury:

On November 4, 2013, Plaintiff was examined by an orthopedist, Dr. Robert Kayal. Dr. Kayal found that Plaintiff had limited range of motion in her neck and lower back. (Ex. 6 at KO 4.) He assessed Plaintiff as having a "bulging cervical disc" and "bulging lumbar disc." (Id. at KO 5.) However, at the time of this assessment, Plaintiff had not yet received magnetic resonance imaging

("MRI") testing. When MRIs were taken of Plaintiff's cervical and lumbar spine on November 14, 2013, the results of both were normal, with no disc herniation. (Ex. 6 at KO 32–33.)

On December 2, 2013, Plaintiff was examined by Dr. Michael Binder, an anesthesiologist and interventional pain management specialist. Dr. Binder found that Plaintiff's range of motion in her cervical spine was decreased to a moderate degree. He also found that Plaintiff's range of motion in her lumbar spine was diminished by at least 25%. (Ex. 7 at RP 18–19.) Dr. Binder diagnosed Plaintiff with cervical strain

/sprain; bilateral cervical facet syndrome; right temporomandibular joint posttraumatic distortion; lumbar sprain /strain; bilateral lumbar facet syndrome; and right posttraumatic sacroiliitis. He recommended that she continue conservative treatment with Dr. Ponzini, and instructed Plaintiff to follow up in five weeks. (Ex. 7 at RP 19–20.)

On December 3, 2013, Plaintiff was examined by Dr. Sammy Masri, a physician who specializes in sports medicine. Dr. Masri found that Plaintiff had a normal range of motion in her cervical spine in all planes. He did not record any limitations in the range of motion in Plaintiff's lumbar spine. In his treatment plan, he noted that Plaintiff was to continue her chiropractic sessions with Dr. Ponzini. (Ex. 5 at PZ 26–27.)

On December 4, 2013, Plaintiff again was examined by Dr. Kayal. Dr. Kayal noted that Plaintiff's condition was improving with physical therapy. (Ex. 6 at KO 7.) Although he did not note any abnormal findings from Plaintiff's MRIs, his medical notes continued to state that his assessment was that Plaintiff had a "bulging cervical disc" and "bulging lumbar disc." (Id. at KO 10.) Dr. Kayal gave Plaintiff two injections of pain medication and prescribed physical therapy. (Id. )

On January 20, 2014, Plaintiff was examined by Dr. Binder. Dr. Binder found that Plaintiff's range of motion in her cervical spine was still moderately decreased. He also found that Plaintiff's range of motion in her lumbar spine "is still decreased by at least 20% to 25%," and he recommended that medial branch nerve blocks

be done. (Ex. 7 at RP 14–15.) On February 3, 2014, Plaintiff was examined by Dr. Kayal. Dr. Kayal noted that Plaintiff had been doing better after receiving injections and physical therapy. He noted some limitation in the range of motion in Plaintiff's neck and back. (Ex. 6 at KO 12–14.)

Dr. Binder performed lumbar medial branch nerve blocks

on Plaintiff on February 21, 2014. (Ex. 9 at ES 13.) On February 26, 2014, while noting that Plaintiff continued to improve slowly, Dr. Kayal gave Plaintiff additional injections of pain medication and recommended that Plaintiff continue physical therapy. (Ex. 6 at KO 17–21.) Dr. Binder performed cervical diagnostic medial branch nerve blocks on Plaintiff on February 28, 2014. (Ex. 9 at ES 9.)

On March 5, 2014, Plaintiff's physical therapist assessed limitations in her range of motion in her cervical and lumbar spines of fifteen degrees or less. (Ex. 5 at PZ 147.) Plaintiff was examined by Dr. Binder on March 13, 2014, at which time he noted that Plaintiff's range of motion had increased. (Ex. 7 at RP 12.) On March 26, 2014, Dr. Kayal noted that Plaintiff was "improving with the therapy and epidural injections

." (Ex. 6 at KO 22.) He recommended that Plaintiff continue with physical therapy and follow up in six weeks. (Id. at KO 26.)

Plaintiff underwent additional diagnostic medial branch blocks in her lumbar and cervical spines on March 25, 2014 and April 15, 2014. (Ex. 7 at RP 7.) When she visited Dr. Binder on April 28, 2014, he noted that Plaintiff was "very pleased with both diagnostic treatments." (Id. ) He further noted that, "[i]n the neck area, Ms. Lopez reported pain dropped by at least 70%-80%" and that, "[i]n the lower back, Ms. Lopez reported pain dropped by at least 80% after the second diagnostic medial branch blocks." (Id. ) Dr. Binder diagnosed Plaintiff with right cervical posttraumatic facet syndrome and bilateral lumbar posttraumatic facet syndrome. (Ex. 7 at RP 8.)

On or about May 19, 2014, an evaluation of Plaintiff by a physical therapist showed no more than five to ten degrees reduction in her range of motion in her cervical or lumbar spines. (Ex. 5 at PZ 76.) On May 20, 2014, Dr. Binder performed a right cervical medial branch radiofrequency ablation

on Plaintiff. (Ex. 7 at RP 27.) Dr. Binder performed lumbar endoscopic rhizotomies⁸ on Plaintiff on June 4 and 17, 2014. (Id. at RP 23, 25.) On July 11, 2014, Dr. Binder found that, after the rhizotomies conducted in June 2014 in Plaintiff's lumbar spine, Plaintiff had almost full range of motion in her lumbar spine, and on Plaintiff's...