Shlotzhauer v. United States

• Decision Date: 16 August 2018
• Docket Number: 6:15-cv-84 (GLS/TWD)
• Parties: JOLEEN SHLOTZHAUER et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — Northern District of New York

JOLEEN SHLOTZHAUER et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.

6:15-cv-84 (GLS/TWD)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

August 16, 2018

APPEARANCES:

FOR THE PLAINTIFFS:

Fine, Olin & Anderman, LLP

1279 Route 300

P.O. Box 1111

Newburgh, NY 12551

FOR THE DEFENDANT:

HON. GRANT C. JAQUITH

United States Attorney

James T. Foley U.S. Courthouse

445 Broadway, Room 218

Albany, NY 12207-2924

OF COUNSEL:

MARSHALL P. RICHER, ESQ.

LAWRENCE D. LISSAUER,

ESQ.

KAREN FOLSTER

LESPERANCE

Assistant United States Attorney

Gary L. Sharpe Senior District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiffs Joleen Shlotzhauer (hereinafter "Shlotzhauer") and Eric Shlotzhauer (hereinafter "Eric") commenced this action against defendant United States of America pursuant to the Federal Tort Claims Act (FTCA).¹ (Compl., Dkt. No. 1.) Shlotzhauer alleges that she was injured in a car accident attributable to the negligence of a United States Postal Service (USPS) employee while he was operating a government vehicle within the scope of his employment. (See generally id.) Eric alleges that, as a result of this accident involving his wife, he suffered various emotional and financial injuries. (See id. at 6-7.) Pending before the court is the government's motion for summary judgment based upon the absence of "serious injury." (Dkt. No. 26.) For the reasons that follow, the government's motion is granted.

II. Background

A. Facts²

On the evening of December 16, 2011, James Boyles, a USPS employee, was collecting mail in Utica, New York. (Def.'s Statement ofMaterial Facts (SMF) ¶ 1, Dkt. No. 26, Attach. 2.) It was dark and the roads were wet. (Id. ¶ 2; Dkt. No. 32 ¶ 2.) After stopping at an intersection, Boyles proceeded to make a right turn. (Def.'s SMF ¶¶ 3-4.) As he turned the corner, the USPS vehicle struck Shlotzhauer. (Id. ¶¶ 4-5, 7.)

Emergency responders arrived and observed "[one] female patient sitting upright on the ground under care of bystanders." (Id. ¶¶ 10-11 (internal quotation marks and citation omitted).) They noted that she had been "struck at a very low rate of speed by a [USPS employee] making a right hand turn at a very low rate of speed." (Id. ¶ 12 (internal quotation marks and citation omitted).) Shlotzhauer was transported to a hospital for treatment. (Id. ¶ 13.) A computerized tomography (CT) scan of her abdominal area noted no traumatic abnormalities. (Id. ¶ 14.) A CT scan of the thoracic spine noted multi-level degenerative disc disease. (Id. ¶ 15.) A CT scan of her cervical spine showed multi-level degenerative disease, bulging discs, and bone spurs. (Id. ¶¶ 16-17.)

Prior to the accident, body imaging conducted on Shlotzhauer also showed degenerative disc disease. (Id. ¶ 30.) However, before the accident, plaintiffs contend that this degenerative disc disease affectedonly the lumbar spine and did not necessitate treatment. (Dkt. No. 32 ¶ 29 (citing Dkt. No. 32, Attach. 10).)

On December 19, 2011, Shlotzhauer's primary care provider, nurse practitioner Carrie Stemmer, ordered additional imaging studies. (Def.'s SMF ¶ 18.) An x-ray of the right shoulder revealed no bone or tissue abnormality; an x-ray of the right hip revealed minimal degenerative changes and no evidence of acute fracture or dislocation; and an x-ray of the lumbar spine showed mild to moderate degenerative change in the lower lumbar spine area and no acute compression fractures. (Id. ¶¶ 18-20.) On December 27, 2011, a magnetic resonance imaging (MRI) revealed that Shlotzhauer's right shoulder was normal. (Id. ¶ 21.) Additionally, an MRI of her cervical spine showed "advanced degenerative arthritis[,] disc disease," disc herniation, moderate spinal stenosis, and bone spurs. (Id. ¶ 22 (internal quotation marks and citation omitted); Dkt. No. 26, Attach. 9 at 2.) NP Stemmer found these results "consistent with advanced degenerative arthritic change." (Dkt. No. 26, Attach. 9 at 2.)

Two days later, Shlotzhauer was treated at a medical center for complaints of light-headedness, dizziness, and blurred vision. (Def.'s SMF ¶ 23.) A head CT scan, blood work, and an electrocardiogram(EKG) all showed normal results. (Id. ¶¶ 23-24.) Shlotzhauer was diagnosed with thoracic strain and hypertension. (Id. ¶ 25.) Dr. Patrick Costello later recorded a normal brain MRI, perfect vision in both eyes, and his impression of transient vision loss. (Id. ¶ 27; Dkt. No. 32 ¶ 27.) A subsequent eye examination revealed that Shlotzhauer had "normal, healthy" eyes. (Def.'s SMF ¶ 28.)

On November 6, 2016, Dr. William Montgomery reviewed all of these medical records and conducted an independent medical examination of Shlotzhauer.³ (Dkt. No. 26, Attach. 14.) He found that "with the exception of the scapular dyskinesis, which could cause some shoulder pain . . . [t]here is no other objective data to corroborate her bodily pain." (Id. at 6.)

B. Procedural History

Plaintiffs commenced this action on January 23, 2015, alleging anFTCA claim based upon the government's negligence and seeking damages of $3,300,000. (See generally Compl.) Following discovery, the government moved for summary judgment. (Dkt. No. 26.)

III. Standard of Review

The standard of review pursuant to Rule 56 of the Federal Rules of Civil Procedure is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its decision in Wagner v. Swarts, 827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff'd sub nom. Wagner v. Sprague, 489 F. App'x 500 (2d Cir. 2012).

IV. Discussion

Under the FTCA, the government's liability is determined according to the law of the state where the incident giving rise to the claim occurred. Goodkin v. United States, 773 F.2d 19, 21 (2d Cir. 1985). As applicable here, New York's "No-Fault" Law precludes recovery of non-economic loss resulting from the negligent operation of a motor vehicle "except in the case of a serious injury." N.Y. Ins. Law § 5104(a). "Serious injury" includes, among other things,

personal injury which results in . . . permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member;significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Id. § 5102(d). To prevail on a summary judgment motion, a defendant claiming that a plaintiff did not suffer a serious injury must present competent medical evidence that the plaintiff's injuries were not caused by the car accident at issue, see Ostroll v. Nargizian, 97 A.D.3d 1076, 1077 (3d Dep't 2012), or that the injuries do not meet the definition for "serious injury" as set forth in § 5102(d), see Henry v. Rivera, 34 A.D.3d 352, 353 (1st Dep't 2006); Seminara v. Grossman, 253 A.D.2d 420, 421 (2d Dep't 1998). Thereafter, the burden shifts to the plaintiff "to proffer medical evidence that contain[s] objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing [the plaintiff's] present limitations to the normal function, purpose[,] and use of the affected body organ, member, function[,] or system." Ostroll, 97 A.D.3d at 1077 (internal quotation marks and citations omitted). Additionally, if the defendant presents evidence of preexisting injuries, the plaintiff must present evidence addressing the claimed lack of causation.

See id.

After identifying multiple potentially-applicable definitions of serious injury, the government claims that Shlotzhauer cannot meet any of them. (Dkt. No. 26, Attach. 1 at 10-12.) Based on the independent medical assessment of Dr. Montgomery, the government contends that "[Shlotzhauer]'s complaints of pain are not corroborated by an[y] objective medical findings and that any abnormalities in her imaging studies reflect pre-existing degenerative changes." (Id. at 9 (citing Dkt. No. 26, Attach. 14).) Plaintiffs argue that the government has not met its initial burden of demonstrating a lack of serious injury. (Dkt. No. 32, Attach. 1 at 5.) Specifically, plaintiffs contend that "Dr. Montgomery's opinion is baseless without any medical documentation to support his conclusion that . . . Shlotzhauer's injuries were pre-existing . . . [and] because, having determined that the conditions were pre-existing, he failed to address whether they were aggravated or exacerbated by the accident[.]" (Id. at 9.) Instead of providing their own expert opinion to the contrary, plaintiffs contend that medical records show that Shlotzhauer suffered serious injury from the accident. (Id. at 11-18.)

A careful review of the record evidence demonstrates that thegovernment has established that Shlotzhauer's conditions preexisted the subject accident, and her subjective assessments of injury to her neck, lumbar spine, hip, shoulder, or vision are not enough to classify her injury as serious within the meaning of New York's no-fault statute. (Dkt. No. 26, Attach. 1 at 8-9.)

After examining all of the above-mentioned medical evidence, (Dkt. No. 26, Attach. 14 at 1-2), Dr. Montgomery found that the only objective data to corroborate the bodily pain Shlotzhauer complained of was the scapular dyskinesis diagnosis, "which could cause some shoulder pain," (id. at 6). However, Dr. Montgomery opined that Shlotzhauer's shoulder condition was normal for a woman her age, and that "it [wa]s questionable whether the MRI findings [in her shoulder] occured during the [accident]." (Id. at 5.) Instead, he found that there was "some symptom magnification" and "her pain does seem out of proportion to what would be expected in the absence of imaging findings or with very limited findings on such objective studies such...