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Hyacinthe v. United States

November 19, 2009

JEAN HYACINTHE, PLAINTIFF,
v.
THE UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Matsumoto, United States District Judge

FOR ELECTRONIC PUBLICATION ONLY FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiff Jean Hyacinthe ("Hyacinthe" or "plaintiff") commenced this action against the United States ("defendant") pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346 and 2671, for personal injuries allegedly sustained as a result of an automobile collision on November 5, 2003. (See Doc. No. 46, Pretrial Order, at 1.) A bench trial was held on October 20 and 22, 2008. (See generally, Doc. Nos. 60-61, Transcript of Bench Trial ("Tr.").)

After reviewing the submissions of the parties, and having considered the evidence at trial and assessed the credibility of the witnesses, the court makes the following findings of fact and conclusions of law as required by Rule 52 of the Federal Rules of Civil Procedure. For the reasons set forth below, the court orders that plaintiff take nothing of defendant, and directs the Clerk of Court to enter judgment in favor of defendant and close this case.

FINDINGS OF FACT

A.The Collision

On November 5, 2003, plaintiff, a Starbucks supervisory employee, and United States Postal Service ("USPS") employee Robert McDougall ("McDougall") were involved in an automobile collision. (Tr. at 12, 24, 150.) The collision occurred on the southbound side of Route 110 in Melville, New York, south of Fletcher Avenue. (Tr. at 30, 150.) At the time of the collision, plaintiff was driving a Mazda MPV caravan, which he had borrowed from a friend (Tr. at 11-12), and McDougall was driving a single-axle Mack truck with a 33-foot trailer (Tr. at 149). It was raining "heavily" at the time of the collision, the roads were wet (Tr. at 17, 70) and "the sky was cloudy" (Tr. at 17). Consistent with the weather conditions, traffic was moving slowly. (Tr. at 163.) Mr. McDougall testified that he had been traveling between 20 to 30 miles per hour down Route 110 South. (Tr. at 164-165.) There were businesses on the right side of the road. (Tr. at 19-20, 70-71, 152.)

Immediately before the collision, McDougall observed a vehicle exiting a parking lot of a Krispy Kreme doughnut shop, which was situated on the right side of southbound Route 110. (Tr. at 152.) Mr. McDougall testified that the "vehicle [] looked like it was going to jet out into oncoming traffic, southbound, without stopping." (Tr. at 153.) McDougall testified that he looked toward the exiting vehicle on his right and he applied the brakes because he "thought there was going to be a problem with this car coming into traffic." (Tr. at 170.) McDougall then looked ahead and observed plaintiff's vehicle at a complete stop approximately 40 feet ahead. (Tr. at 174-175.) As McDougall applied the brakes, his truck skid on the wet roadway and collided with the rear end of plaintiff's stationary vehicle. (Tr. at 87, 175.) According to plaintiff, the impact from the collision caused plaintiff's vehicle to move forward "[p]robably a couple of car lengths . . . ." (Tr. at 22.) According to the police accident report and Mr. McDougall, there was "no traffic light where the accident occurred" and the nearest traffic light was approximately "well over a hundred feet" ahead. (Tr. at 161; see Stipulated ("Stip.") Ex. A, Police Accident Report.)

B.Plaintiff's Injuries

Plaintiff, who was 31 years old on the date of the collision (see Police Accident Report), was taken by ambulance from the scene of the collision to North Shore University Hospital at Plainview ("North Shore"). (Tr. at 26; Stip. Ex. I, Emergency Room Records, at Bates No. 123.) There, x-rays were taken of plaintiff's cervical spine, chest, thoracic spine, lumbar spine and pelvis. (See id. at Bates Nos. 124, 131-134, 137-141.) The x-rays revealed no fractures, dislocations, or other bone, joint or soft tissue abnormalities. (See id.) Similarly, a CT scan of plaintiff's cervical spine revealed no abnormalities. (Id. at Bates Nos. 135-136.) Plaintiff was diagnosed with musculoskeletal pain status post motor vehicle collision. (Id. at Bates No 124.) Plaintiff testified that he had never previously injured his back or neck. (Tr. at 60.)

The next day, November 6, 2003, plaintiff visited Bay Shore Physical Medicine and Rehabilitation ("Bay Shore") and was treated by Dr. Alan L. Cohen, M.D. (See Tr. at 29-30; Stip. Ex. H, Bay Shore Records, at Bates No. 20-27.) There, plaintiff complained of localized and non-radiating neck and low back pain. (Id. at Bates No. 20.) X-rays of plaintiff's cervical spine taken on that date revealed loss of cervical lordosis, decreased disc space between C5 and C6, and no fractures. (Id. at Bates No. 23.) Similarly, x-rays of plaintiff's lumbar spine revealed loss of lumbar lordosis, decreased disc space between L5 and S1, no fractures and "a right convex scoliosis without rotation most likely due to muscle spasm." (Id.) Dr. Cohen diagnosed plaintiff with neck and low back pain, for which he prescribed physical therapy, home exercises and Skelaxin, a muscle relaxant. (Id. at Bates No. 21.) Dr. Cohen also issued plaintiff a note which stated, inter alia, that plaintiff was unable to work on November 6-8, 2003 and was able to return to work on November 10, 2003, and noted "light duty" on the line for "restrictions/remarks." (Id. at Bates No. 24; Tr. at 40.)

Plaintiff attended physical therapy at Bay Shore three times per week from November 7, 2003 through December 8, 2004. (See Tr. at 32, 34; Stip. Ex. H, Bay Shore Records, at Bates Nos. 2-6.) During a January 9, 2004 follow-up visit with Dr. Cohen, plaintiff reported that although he continued to experience pain, physical therapy had been very helpful in reducing pain and improving his overall functioning. (See id. at Bates No. 18.) With respect to plaintiff's cervical spine, Dr. Cohen reported that plaintiff experienced pain at the end ranges of extension and flexion. (Id.) He also observed that plaintiff's lumbar spine was minimally tender. (Id.) Plaintiff's condition remained essentially the same throughout the remainder of his treatment with Dr. Cohen. (See id. at Bates Nos. 9-16.) Dr. Cohen's final assessment took place on November 8, 2004, during which he found that plaintiff's cervical spine demonstrated "good cervical lordosis[,]" tenderness, "grossly normal" range of motion, intact sensation, full muscle strength, and normal reflexes. (See id. at 8.) As to plaintiff's lumbar spine, Dr. Cohen found that it demonstrated a "mild decrease in lumbar lordosis[,]" muscle tenderness at L3 to L5, normal range of motion, discomfort at the end ranges of extension and flexion, full muscle strength, intact sensation, and normal reflexes. (Id.; see also id. at Bates No. 18.)

Plaintiff testified that as a result of the accident, he was unable to engage in certain daily activities for approximately one year. (See Tr. at 38-39, 41.) Specifically, plaintiff testified that he could not play football or "pickup" basketball games with his children, and cook or clean his house. (Id.) At work, plaintiff had difficulty performing certain physical tasks, such as stocking the refrigerator with milk. (See Tr. at 40-42, 85-86.)

Notwithstanding, plaintiff testified that he missed three days from work, was able to take public transportation, and maintained the same supervisory position at work following the collision. (Tr. at 84.) Plaintiff further testified that he was able to perform physical activities such as mopping and stocking milk, and that he delegated tasks when necessary. (See Tr. at 85.)

Although there is no evidence that plaintiff received any medical treatment for his neck and low back pain from January 2005 through February 2006, plaintiff testified that "[o]verall, the pain was constant." (See Tr. at 54-55.) More than two years after the November 5, 2003 collision, on March 15, 2006, plaintiff presented to the emergency room of St. Catherine of Sienna Medical Center in Smithtown, New York and complained about pain in his low back and left leg for the past few days. (See Tr. at 49-50; Stip. Ex. K, St. Catherine Records, at Bates Nos. 155, 158, 159.) Plaintiff advised the emergency room staff that he had experienced "sciatica since a motor vehicle accident three years ago[.]" (Tr. at 51; see Stip. Ex. K at Bates No. 159.)

The next day, on March 16, 2006, plaintiff followed up with his primary care physician, Dr. Cindy Smith, D.O. (See Stip. Ex. L, Premier Family Medical Associates, P.C. Records, at Bates No. 188; Tr. at 51.) Plaintiff's chief complaint and reason for the visit was pain in his low back and left leg for the past three days, which became severe at work the day before. (Id.)

Dr. Smith referred plaintiff to Optimal Care Physical Therapy, P.C. ("Optimal Care"), which plaintiff visited on March 16, 2006. (See Tr. at 51; Stip. Ex. J, Optimal Care Records, at Bates No. 188.) Plaintiff's "Patient Information" form, which plaintiff completed on March 16, 2006, states that plaintiff experienced a stiff lower back and "pain . . . shooting straight down [the] left leg." (Id.; see Tr. 79.) Plaintiff also stated that this problem began on March 14, 2006 and that he had not previously had this problem. (Stip. Ex. J, at Bates No. 148.)

On April 29, 2006, plaintiff visited Dr. Edward Firouztale, D.O. for a neurologic consultation ordered by Dr. Smith. (See Stip. Ex. L, at Bates No. 178-179.) According to Dr. Firouztale's report of the April 29, 2006 consultation, plaintiff advised Dr. Firouztale that "approximately 1.5 months ago he experienced an acute onset of pain extending from the left low back in the posterior distribution to the left foot." (Id. at Bates No. 178.) Plaintiff further advised Dr. Firouztale that "he has had low back pain in the past, status post a motor vehicle accident three years ago. However, lumbar pain had completely resolved prior to this event." (Id.; see also Tr. at 75.) Among other things, Dr. Firouztale ordered an MRI scan to "rule out [a] herniated disc." (Stip. Ex. L at Bates No. 179.)

An MRI scan of plaintiff's lumbar spine was performed on May 12, 2006. (See Stip. Ex. N, BAB Radiology Records, at Bates No. 236.) The MRI scan revealed "[m]ild degenerative changes . . . at L5-S1 associated with small left parasagittal disc herniation with no nerve root displacement" and "[s]traightening of the normal lumbar lordosis." (Id.)

Thereafter, on January 9, 2007, plaintiff treated with Dr. Hargovind DeWal, M.D., an orthopedic surgeon whom plaintiff called as an expert witness at trial. (See Tr. at 55-56, 207-208, 211.) Dr. DeWal testified that during plaintiff's initial evaluation, plaintiff "complained mostly of lower back pain" as well as "a complaint of neck pain radiating into his [plaintiff's] shoulder . . . ." (Tr. at 221.) On January 7, 2007, Dr. DeWal conducted a physical examination of plaintiff that measured plaintiff's range of motion in both plaintiff's cervical and lumbar spine and found it to be limited by pain. (Tr. at 211-216.) Dr. DeWal testified that plaintiff reported he did not experience pain in his neck or back before the November 2003 collision. (Tr. at 231; see also Stip. Ex. P, Long Island Spine Specialists, P.C. Records, at Bates Nos. 252-253.)

Dr. DeWal testified that, with the exception of the May 12, 2006 MRI scan of plaintiff's lumbar spine, he did not review any x-rays or the CT scan results conducted before January 9, 2007, nor review any medical records or diagnostic test results related to plaintiff's November 2003 collision. (Tr. at 220, 279, 283.) As to plaintiff's May 12, 2006 MRI scan, Dr. DeWal found that plaintiff's lumbar spine "had a degenerated and herniated disk off to the left side at L5-S1." (Tr. at 217.) The MRI report dated May 15, 2006, found "mild degenerative changes" at L5-S1 "associated with a small left parasagittal disc herniation without evidence of nerve root displacement" and "no evidence of significant disc protrusion or focal disc herniation." (Stip Ex. N, at Bates No. 236.) Dr. DeWal ordered an MRI scan of plaintiff's cervical spine, conducted on January 12, 2007, which states an impression:

"small posterior disc abnormalities at C4-C5 and C5-6 without MRI evidence of central canal stenosis or nerve root impingement." (Id. at Bates No. 238.) Dr. Dewal also ordered an MRI scan of plaintiff's lumbar spine, which was conducted on February 7, 2007. (See Tr. 222; Stip. Ex. N at Bates No. 239.)

Dr. DeWal testified that the February 2007 MRI scan revealed that disk L5-S1 was degenerated and "herniated into the spinal canal." (Tr. at 223.) The report of the February 2007 MRI states an impression: "L5-S1 broad-based central and left sided disc herniation just touches the central ...


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