The opinion of the court was delivered by: David E. Peebles U.S. Magistrate Judge
Asserting diversity of citizenship as a basis for this court's subject matter jurisdiction, plaintiff Kevin B. Smith, a New York resident, has commenced this action to recover damages resulting from a motor vehicle accident which occurred in June of 2003 in Pennsylvania. Defendants, all citizens of Pennsylvania for diversity purposes, have conceded liability for negligence but dispute plaintiff's entitlement to recover damages, both economic and for pain and suffering. Defendants' opposition to plaintiff's damage claim is based partly upon their contention that under New York's no-fault insurance regime, which they contend should apply, Smith's entitlement to recover damages is limited since he did not suffer from a serious injury as a result of the accident.
A non-jury trial was conducted by me in connection with this action, beginning on June 12, 2006.*fn1 This decision sets forth my findings of fact and conclusions of law, based upon the evidence adduced during that trial.*fn2
Plaintiff was born on June 17, 1963; at the time of trial, he was forty-two years old. Smith is divorced, and resides in Williamstown, New York with his six children, of which he has had custody since December of 2003. Plaintiff's children range in age from nine to eighteen; the oldest two of those children suffer from cystic fibrosis.
Plaintiff is a high school graduate, having achieved a local, non-regents diploma in 1982. After graduating from high school plaintiff worked in a variety of positions, and for a period of time was a member of the United States Military Service. In 1991 plaintiff trained to be a truck driver, ultimately receiving his commercial driver's license.
After working for approximately three years as a driver for another company, plaintiff became employed with G&C Food Distributors & Brokers, Inc. ("G&C"), headquartered in Syracuse, New York, in June of 1994. Plaintiff's responsibilities at G&C included working as an over-the-road truck driver, making deliveries of product to G&C customers. Some of the work performed by Smith at G&C was described by him as "hands on", meaning that he was required to load and offload products, sometimes utilizing a hand cart or pallet jack. According to his payroll records, Smith was earning $14.70 per hour at G&C in 2003.
On June 18, 2003, while driving a Philadelphia route for G&C which entailed delivery stops in both Pennsylvania and New Jersey, the rear of plaintiff's truck was struck by a bus owned by defendant Bieber Tourways and/or Carl R. Bieber, and operated by Terry Boyer; all of those parties are domiciled in Pennsylvania, and were in June of 2003. At the time of the accident, which occurred on Interstate 476 near the junction of that highway with Interstate 76, plaintiff's vehicle was stopped in traffic in the left lane, with its four-way emergency flashers operating. As a result of the impact the rear end and "ICC bar" of plaintiff's truck were pushed in, and the cargo door was not properly operational. The accident also caused plaintiff's trailer to buckle, and the back of his driver's seat to "lay flat."
After speaking with law enforcement officials regarding the accident, and declining an offer for transport by ambulance to a local emergency room, Smith continued driving his route, making one last stop and returning to Syracuse.*fn3 As he made the return trip to Syracuse, without the benefit of a seat back, plaintiff noticed some initial soreness. After returning to his home that evening plaintiff took Tylenol and went to bed, experiencing continued pain.
When plaintiff awoke on the morning after the accident, he was unable to move. As a result Smith made an appointment with his general medical practitioner, Dr. Mufhta Kadura, who examined him on June 20, 2003 and arranged for x-rays and a CT scan of his cervical spine region. Results of x-rays taken on that same day were principally unremarkable, revealing, inter alia, "no encroachment on the neural foramen." Reports of the CT scan testing revealed "[m]ulti-degenerative ostephyte formation" including a "small left posteriolateral ostephyte" at the C3-C4 level, a "small right posteriolateral ostephyte" at the C4-C5 level, and a "moderate sized right posteriolateral ostephyte . . . resulting in mild right lateral recess and neural foraminal compromise" at the C5-C6 level. Based upon those results and his examination, on June 24, 2003 Dr. Kadura directed that the plaintiff remain out of work for a period of two weeks, and prescribed a course of physical therapy twice weekly; that therapy regimen commenced on June 30, 2003, and was extended for approximately four weeks through July of 2003, with little if any appreciable benefit to the plaintiff.*fn4
After remaining out of work based upon Dr. Kadura's advice and his continued experiencing of ongoing pain and numbness extending down his arm into his fingers, plaintiff attempted to return to work in mid-August and was assigned a local delivery run to Rochester, New York. While plaintiff had hoped to keep working, as a matter of financial necessity, he encountered ongoing physical difficulties, requiring him to once again go out on sick leave after working for approximately two weeks.*fn5, *fn6
Plaintiff was again cleared for work by Dr. Kadura on September 12, 2003, without limitation. Smith subsequently returned to G&C, logging 29.25 hours in the pay period ending on September 19, 2003, and 21.75 hours during the next week. At the end of that second period, however, plaintiff experienced difficulties on a Pennsylvania run which he was scheduled to make along with another G&C driver. After leaving G&C for the assigned run, plaintiff requested that the driver stop and leave him off in Tully, just south of Syracuse. A G&C dispatcher was subsequently sent to pick Smith up and return him to the company's offices. Plaintiff left work following that unsuccessful run, and has not returned to G&C since.
Continued complaints of pain, numbness and tingling led to a referral of the plaintiff by Dr. Kadura to Dr. David Eng, a neurosurgeon practicing in Syracuse, New York. Plaintiff was initially seen by Dr. Eng on October 1, 2003. During that visit plaintiff did not appear to be in acute distress. Dr. Eng's notes reflect that plaintiff's reflexes were symmetric, as was his strength throughout with the exception of his left triceps and biceps, which were found to be mildly impaired. Dr. Eng also found that Smith exhibited "good range of motion in his neck", although he appeared to experience some difficulty in flexion. As a result of his examination and findings Dr. Eng discerned the presence of cervical spondylosis with left side radiculopathy at the C6-C7 level, and recommended that Smith undergo magnetic resonance imaging ("MRI") testing.
Smith underwent a second round of x-ray and CT scan testing in early October 2003. X-rays of plaintiff's cervical spine taken at that time reflected no evidence of fracture or dislocation, and no encroachment on the neural foramen. A CT scan of plaintiff's cervical spine revealed normal alignment, with no evidence of disc bulging or herniation, although multi-level degenerative ostephyte formation was perceived posturally and laterally at the C3-C4, C4-C5, and C5-C6 levels. That CT testing also reflected mild right lateral recess and right neural foramen narrowing at the C5-C6 level as a result of an ostephyte ridge formation there.
Plaintiff's MRI testing, conducted on October 15, 2003, revealed a small spondylotic protrusion at the C3-C4 level, with mild narrowing of the margin of plaintiff's left foramina at that level, as well as a small herniation at the C6-C7 level and corresponding marked narrowing of the right anterior subarachnoid space at that level, and with a resulting slight displacement of the cervical cord and narrowing of the right lateral recess at that level. According to Dr. Eng the spondylotic protrusion, referred to as a bone spur, is the result of a degenerative condition, described as part of the normal aging process. Dr. Eng has characterized the bone spur as a latent condition whose existence predated the June 18, 2003 accident, noting that plaintiff was asymptomatic until the accident triggered nerve impingement.
During a follow-up visit to Dr. Eng on November 3, 2003, plaintiff complained of ongoing pain to his left shoulder, deltoids and biceps, with no improvement since the October visit. As a result of that visit Dr. Eng refocused his attention from the C6-C7 level to C3-C4, and recommended surgery to address the bone spur and Smith's reported symptomology. Plaintiff thereafter underwent anterior cervical discectomy surgery, with fusion and plating, at the C3-C4 level on January 16, 2004. Notes of subsequent visits with Dr. Eng reveal that after his surgery plaintiff experienced some improvement, including in mobility. By March 8, 2004 plaintiff reported that his pain and numbness in the left arm "ha[d] virtually gone away." Testing on that date reflected that plaintiff's strength was symmetric, and his range of motion was good.
During an office visit with Dr. Eng on June 7, 2004 plaintiff reported that he had recently recommenced physical therapy, and that he was experiencing discomfort in the fourth and fifth digits. Dr. Eng's examination of Smith on that date revealed that his strength was symmetric, with some weakness of the abductors and grip in the left bicep and tricep regions. Dr. Eng recommended an electromyography ("EMG") and nerve conduction testing studies on the left side to further explore plaintiff's symptoms, and continued him on physical therapy. An EMG and nerve conduction study subsequently conducted in or about August of 2004 revealed no ulnar dysfunction or other abnormalities. Plaintiff reiterated complaints of numbness and tingling in the fourth and fifth digits of his left hand during a subsequent office visit to Dr. Eng on August 30, 2004.
On September 21, 2004 plaintiff's physical therapist prepared a functional capacity evaluation ("FCE") report assessing his limitations, based upon the therapist's testing. In that FCE the therapist determined that plaintiff was unable to lift more than twenty pounds, or to elevate his arms above his shoulders or neck. Relying upon that FCE, Dr. Eng concluded on October 4, 2004 that plaintiff should not drive a truck, and instead could only return to light duty work. Plaintiff was subsequently cleared by Dr. Eng on November 2, 2004 to return to work, effective November 15, 2004. Unfortunately, however, plaintiff's employer was either unable or unwilling to accommodate plaintiff's circumstances, and advised Smith that the company did not have any light duty positions available for him.*fn7
In June of 2005 additional x-rays were taken of plaintiff's cervical spine. Those x-rays revealed no evidence of instability in flexion and extension views, and satisfactory alignment of the cervical spine. Based upon plaintiff's ongoing complaints of pain and limitation and range of motion, during an office visit on June 6, 2005 Dr. Eng recommended that he undergo a second EMG and another round of MRI testing. Plaintiff failed to submit to either examination, however, complaining of the pain which he experienced during earlier testing.
A side from the two brief, failed efforts to return to G&C, plaintiff has not worked as a truck driver since the June, 2003 accident. Beginning on or about December 18, 2004, and extending throughout 2005 and into 2006, Smith was employed as a day laborer supervisor with One Source, a company engaged by contract to perform cleaning services at the Syracuse University Carrier Dome, particularly after events held in the facility. In that position, which was secured through an acquaintance, plaintiff was paid at an hourly rate which began at $6.50, but later increased to $8.25, and often worked for periods ranging up to eighteen hours in a single shift and twenty-nine hours over the course of a two day period. According to plaintiff's tax records, he earned approximately $600 in 2004, and $5,293 in the following ...