Moscato v. United States, 15-CV-1063V

• Decision Date: 08 February 2018
• Docket Number: 15-CV-1063V
• Parties: Deborah A. Moscato, Plaintiff, v. United States of America, Defendant.
• Court: U.S. District Court — Western District of New York

Deborah A. Moscato, Plaintiff, v. United States of America, Defendant.

15-CV-1063V

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

February 8, 2018

Report and Recommendation

I. INTRODUCTION

District Judge Lawrence J. Vilardo has referred this motor vehicle collision case to this Court under 28 U.S.C. § 636(b). (Dkt. No. 27.) Pending before the Court are cross-motions by plaintiff Deborah Moscato ("Moscato") and defendant the United States of America for summary judgment under Rule 56 of the Federal Rules of Civil Procedure ("FRCP"). (Dkt. Nos. 26, 29 (hereafter [26, 29]).) Moscato contends that the rear-end nature of the collision and the absence of any mitigating factors conclusively establish defendant's liability. Documentary evidence, in Moscato's view, shows quantitative reductions in her cervical range of motion that more than one physician has connected causally to the collision. Moscato thus believes that she has established a "serious injury" under New York's Insurance Law.¹ Defendant does not contest liability but arguesthat Moscato nonetheless cannot recover for several reasons. Defendant asserts that Moscato cannot establish a serious injury based on records that suggest a full recovery from a mild cervical strain that the collision might have caused. To the extent that Moscato has limitations in her cervical range of motion, defendant attributes those limitations to chronic arthritis diagnosed as far back as 10 years before the collision. Additionally, defendant argues that Moscato cannot recover for economic loss because her actual economic damages do not exceed the amount of damages that New York sets for "basic economic loss."

The Court held oral argument on December 14, 2017. For the reasons below, the Court respectfully recommends granting each party's motion in part and sending this case to a damages trial for serious injury only.

II. BACKGROUND

A. Motor Vehicle Collision of 2013

This case concerns a motor vehicle collision that occurred on March 20, 2013 around 5:16 PM, at the intersection of Niagara and Carolina Streets in the City of Buffalo. [26-2 at 2.] Moscato was stopped at a red light in one of the northbound lanes of Niagara Street. [26-7 at 3.] Driving behind her was Mark Haggerty ("Haggerty"), an agent of the United States Immigration and Customs Enforcement ("ICE") agency. Haggerty did not notice in time that traffic in front of him had stopped for the red light. [See 26-8 at 3.] Haggerty did not rule out cellular telephone use as a contributing factor. [See 26-8 at 4 ("Q. Was it a cell phone? A. Possibly.").] Haggerty's FordEdge hit Moscato's Nissan Rogue in a rear-end collision. [See 26-7 at 3 ("I felt the car jerk and I went forward in the seat and realized I had been hit.").] Haggerty was working within the scope of his employment at the time of the collision. Weather was not a factor. [26-8 at 4; 26-24 at 33.] Moscato did not need treatment at the scene. [30-1 at 8.] The collision caused $2,261.16 of damage to Moscato's car. [26-2 at 2.] Moscato was able to drive the car while repairs were pending. [26-7 at 5; 30-1 at 12.]

B. Medical Condition and Records

Moscato did not visit a hospital or a doctor immediately after the collision. [26-7 at 5.] Moscato eventually was prescribed 800 milligrams of ibuprofen. [26-5 at 4.] Moscato explained at her deposition why she sought only massage therapy for the first three months after the collision:

I thought with massage and taking it easy it would go away. It didn't. It got worse. And at that point, I believe it was in June, my hand weakened, my arm was tingling down into my fingers and I knew something was wrong.

[26-7 at 6-7.] Moscato has provided her own description of her collision-related injuries as follows:

It will be claimed that the motor vehicle collision caused Deborah Moscato injury and disruption to her cervical spine the muscles, ligaments and supportive structures therein including but not limited to a whiplash injury, microscopic injury to the ligamentous facet joint capsule and myofascial tissues around the cervical spine; cervical disc herniations at C6-7 and C5-6; activation and/or aggravation of disc herniations and/or degenerative conditions present in the cervical spine; referred left shoulder/blade and arm pain; radicular symptoms and complaints; muscle spasms, fixed contracture and loss of range of motion.

These injuries and symptoms have been present since the motor vehicle collision and continue today.

[26-5 at 5.] Moscato also claimed $594.30 in out-of-pocket medical expenses. [Id.] As for daily activities, Moscato has offered the following description of limitations that she now faces:

a. Formerly, Plaintiff attended level 2 yoga classes up until the accident. She is unable to take or perform standard yoga classes due to physical restrictions. Qualified therapeutic yoga teachers are hard to find. She had one from Buffalo Spine and Sports but they moved. Most classes are not available at times when she is not working. She misses those classes terribly.

b. Plaintiff can no longer sit on a bleacher to watch sporting events (most important being grandkids little league and soccer). She must turn her whole body to watch plays.

c. Plaintiff can no longer do yard work which includes repetitive motions (raking, pulling weeds, digging, etc.) for more than a short period of time. Before the accident she could spend the day outside doing those activities. She is unable to sit for an extended period of time in a chair that does not at least come up to her shoulders. She has developed a habit of sitting with her chin supported to take weight off of her back.

d. She is unable to ride comfortably in her husband's 2001 Jeep Wrangler for any length of time because of the jarring. The backseat does not have a high enough head rest such that she is unable to sit there at all.

e. Restriction and discomfort in checking traffic while driving. She must turn her entire body and not just her head. At times, movement will cause a stinging sensation in her neck. She is extremely careful when she merges into traffic.

f. She was forced to change her route home to avoid the merge onto the I-[1]90 at the Niagara Street entrance due to the high traffic of trucks and the quick merge.

g. Restriction and pain during meetings/events/activities which would entail her looking up to talk to someone while she is in a seated position, something that happens a great deal at work.

h. Restriction and pain during meetings/events/activities which would entail her turning to either side to speak with/or listen to someone speak.

i. She is unable to engage in prolonged extension of arms overhead, including:

i. Hair rollers

ii. Vacuuming walls, etc. above shoulder height

iii. Decorating the Christmas tree (takes 2 days now)

j. When her dog was ill, she could not lift and carry her (14 pounds) due to pain across her upper shoulders and into her neck. She needed assistance in and out of the house.

k. Her job entails using two computer screens for increased productivity and ease of transferring information. This can only be done if she keeps rotating my chair from left to right instead of moving my head. Most of the time she now has to use the one screen with multiple windows open.

l. Sitting at her desk causes tightness and pain in her neck. She must stop and do PT exercises. The neck pain will cause headaches. Since the stress level in her office is at a peak and workloads are increased the amount of daily pain that she is having has now increased.

m. Limited as to the time she can sit on the floor to play games, read etc. with her three 6-1/2 year old grandchildren.

n. She is unable to participate in bike rides of any length and outside games (driveway tennis) with her husband and grandkids.

o. She is limited as to the weight of items that she can lift. If her children have any more children she will not be able to lift them in and out of cribs, etc.

To summarize she is limited in the amount of weight that she can lift, motion of her head from side-to-side as well as up, overhead motion of her arms, sitting with unsupported neck/head etc., all which impact her day-to-day living. This is all a result of her being rear ended at a stop light. She had none of these restrictions and required modifications to her lifestyle prior to March 10, 2013.

[26-5 at 6-7; see also 26-7 at 8-10.]

The record for this case includes notations in medical records for numerical assessments of Moscato's cervical range of motion:

Date

Provider

Extension

(70°)

²

Flexion

(80-90°)

L Lateral Bend

(20-40°)

R Lateral Bend

(20-40°)

L Rotate

(90°)

R Rotate

(90°)

Dkt. No.

12/29/2014

BSSM3

-10%

Full

-10%

-10%

-10%

-10%

26-11 at 5

4/2/2014

BSSM

-25%

Full

-10%

-10%

-10%

-10%

26-11 at 9

2/6/2014

BSSM

-25%

Full

-25%

-10%

-25%

-10%

26-11 at 14

8/6/2013

BSSM

-75%

Full

-25%

-50%

-75%

-25%

26-11 at 78

8/16/2016

Castiglia

-25%

-25%

N/A

N/A

50

65

26-13 at 9

8/3/2016

Castiglia

45

60

N/A

N/A

N/A

N/A

26-13 at 12

10/3/2016

Castiglia

Full

Full

Full

Full

Full

Full

26-13 at 19

11/23/2016

Naab

-25%

-25%

N/A

N/A

75

75

26-13 at 20

8/26/2016

Naab

-25%

-25%

N/A

N/A

50

65

26-14 at 6

12/11/2013

Hausmann

60

30

N/A

N/A

45

55

26-15 at 3

3/20/2014

Hausmann

45

35

N/A

N/A

45

45

26-16 at 3

1/13/2015

Kostek

44

41

28

31

40

60

26-17 at 3

3/24/2015

Kostek

36

43

30

31

40

40

26-18 at 3

4/11/2014

Novelli

24

-30%

18

18

32

32

26-20 at 2

8/8/2016

Novelli

30

30

25

25

40

55

26-22 at 2

6/20/20034

Kowalski

N/A

N/A

N/A

N/A

60

60

30-2 at 2

11/23/2016

Gross

41

37

23

23

45

45

30-8 at 2

12/5/2016

Leddy

50

40

N/A

N/A

50

60

30-10 at 2

9/28/2017

Novelli

30

30

25

25

40

55

37-1 at 16

The record also indicates mild disc herniations at the C5-C6 and C6-C7 levels. [See, e.g., 26-13 at 14.]

On March 1, 2015, Dr. Michael Cicchetti from BSSM wrote a letter to Moscato's counsel summarizing the records generated in his...