The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action under the Federal Tort Claims Act ("FTCA"), arising from a motor vehicle accident ("MVA") allegedly caused by an employee of the United States Postal Service ("USPS"). Now before the Court is a motion [#35] for summary judgment by the United States, and a cross-motion [#38] for summary judgment by Plaintiff. For the reasons that follow, both applications are granted in part and denied in part.
Unless otherwise noted, the following are the undisputed facts of this case. On March 3, 2007, Renee Hahnel ("Plaintiff") was driving her car, and made a left turn out of Panorama Plaza, in the Town of Penfield, New York, and proceeded west on Penfield Road, which is a four-lane road, with two lanes in each direction. Plaintiff was driving in the left or inside lane of the two westbound lanes. Prior to Plaintiff leaving the plaza parking lot and entering Penfield Road, she observed a USPS van sitting at the exit of "another parking lot across the street," to the west of her location. (Pl. Dep. at 24-25). At that moment, Susan Kazak ("Kazak"), the USPS employee who was operating the postal van, was stopped at the exit of the parking lot, eating a snack. Kazak Dep. at 41. Plaintiff traveled approximately forty feet on Penfield Road, and was preparing to stop at a red light, when Kazak drove her van out of the parking lot where she had been stopped, and attempted to make a left-hand turn across the oncoming lanes of traffic in which Plaintiff was traveling. Kazak drove her van directly into the front passenger-side of Plaintiff's car. Kazak admits that she never saw Plaintiff's car before she exited the parking lot, and that she only saw Plaintiff's car an instant before impact, which gave her enough time to apply her brakes. Kazak Dep. at 42, 49.
Kazak indicated that she did not know where Plaintiff's car "came from." Id. at 42. Despite this, or because of it, Kazak assumes that Plaintiff must have sped up and caused the accident:
A. I believe she was speeding when she -- when I pulled out of the post office and [that she] was trying to get by me. I pulled out into the lane and I believe that she was speeding and tried to outrun my truck.
Q. I thought you testified that you never saw her before impact?
A. But the rate of her speed.
Q. Did you see her at all before the impact?
A. A car length. When you're -- when you're pulling out, a car length. No.
I did not see her. (Kazak Dep. at 49). Upon impact, Plaintiff, who was wearing a seatbelt, struck her head against the interior of her car. Plaintiff declined medical treatment at that time. Following the accident, both vehicles were operable, and Plaintiff drove herself home.
For some years prior to the accident, Plaintiff had received medical treatment for complaints of pain in her hands, wrists, and back. Between September 27, 2002 and March 31, 2003, Plaintiff was treated by Leslie S. Weisbrod, M.D. ("Weisbrod"), an internist. Plaintiff complained to Weisbrod of pain in her hands and wrists, and stiffness in her hands and back. Plaintiff never complained to Weisbrod about leg pain or focal back pain, and Weisbrod found nothing on his examinations to suggest that Plaintiff had "any type of spinal condition or disc disease." (Weisbrod Aff. ¶ 6). Weisbrod referred Plaintiff to a rheumatologist.
Gordon L. Moore, M.D. ("Moore") is another internist who treated Plaintiff between May 2001 and April 18, 2007. Prior to the MVA, Plaintiff complained to Moore about pain in her hands, elbows, knees, and back, "but did not complain of any specific back problem." Moore Aff. at ¶ 3. According to Moore, "[t]he systemic and generalized joint pain and inflammation Plaintiff presented with [was] characteristic of a rheumatologic condition," and he referred Plaintiff to a rheumatologist. Id. On May 19, 2003, Moore examined Plaintiff, at which time Plaintiff was not working, due to joint pain, primarily in her wrists, neck, back, and jaw. Def. Summary Judgment Motion Ex. 7 at p. 17. Plaintiff reported having difficulty bending and lifting, and indicated that she could sit for about 30-45 minutes before needing to stand, and could stand for about 30-45 minutes before needing to sit. Id. In October 2005, Moore reported that Plaintiff's "rheumatologic problems" were "continu[ing] with little relief. She is in pain a lot of the time, feeling fatigued most of the time, nothing seems to be working for her." Id. at 32. Moore excused Plaintiff from work, for "medical reasons," between October 14, 2005 and November 1, 2005. Id. at 34. In February 2006, Plaintiff complained to Moore of sharp pain in her back, "located about six (6) inches above her waist," which Plaintiff felt "was related to her ongoing joint pain." Id. at ¶ 5.
On March 6, 2007, a few days after the MVA, Moore examined Plaintiff, who complained of headaches and "back pain, focused in her low back." Id. at ¶ 7. At that time, Plaintiff had "severely restricted" thoracic and lumbar flexion. Id. Moore reported, though, that Plaintiff had negative straight-leg raising bilaterally, and that she was able to stand on the balls of her feet and her heels, without difficulty. Def. Summary Judgment Motion, Ex. 7, Bates No. 48. On March 14, 2007, Plaintiff told Moore that she was having pain, which she attributed to whiplash, and "tingling in her hands and down her leg," and she "asked about [having] an MRI." Id. at 51. Moore told Plaintiff that an MRI would be "a waste of her time," since there was "an absence of muscular symptoms that would raise suspicion of a protruding disc." Id. Subsequently, on April 18, 2007, Plaintiff told Moore that she had "pain in her mid to lower back that traveled down her right leg to her toes," as well as numbness in her leg. Moore Aff. at ¶ 8. According to Moore, "[b]efore the accident, Plaintiff did not have focal back pain, rather she had generalized joint inflammation and pain. After the accident, she described back pain that radiated down her right leg; Plaintiff never described to me any such radiating pain prior to the accident." Id. at ¶ 8.
Keith Pryhuber, M.D. ("Pryhuber") was the rheumatologist to whom Weisbrod and Moore referred Plaintiff. Pryhuber treated Plaintiff between February 4, 2003 and March 4, 2008, which covers the period before and after the MVA. Prior to the accident, Plaintiff complained of joint pain, "particularly in her elbows, knees, back, and neck." (Pryhuber Aff. ¶ 3). Pryhuber's impression was that Plaintiff possibly had "connective tissue disease," such as Lupus or mild inflammatory arthritis. Id. Inflammatory arthritis can include spondyloarthropathy, which is inflammatory arthritis of the spine. Id. Prior to the MVA, Pryhuber did not see any symptoms or conditions to suggest to him that Plaintiff was suffering from "spinal disc disease." Pryhuber Aff. at ¶ 4. In that regard, Plaintiff never told Pryhuber that she was experiencing "nerve root symptoms originating in her back such as pain shooting down her legs." Id. at ¶ 6. However, in July 2003, Plaintiff did inform Pryhuber that she was having numbness in her achilles tendon area. Def. Summary Judgment Motion Ex. 7 at p. 19. In March 2004, Pryhuber reported that Plaintiff was taking the drug sulfasalazine for her "arthritis," without much improvement, and that she was still complaining of "problems with her hands, knees, ankles, [and] elbows." Id. In July 2004, Pryhuber reported that Plaintiff's arthritis symptoms were significantly improved since she began taking the drug methotrexate, though she was still experiencing "some pain in the ankles and top of her foot." Id. at 21. In November 2004, Pryhuber reported that Plaintiff's "inflammatory arthritis" was "a little better," though he was not sure why, since Plaintiff had stopped taking methotrexate and sulfasalazine. Id. at 25. At that time, Plaintiff reported swelling and tenderness in her knees and ankles. Id. Pryhuber placed Plaintiff back on sulfasalazine. Id. In February 2005, Pryhuber reported that Plaintiff's joint symptoms seemed to "have settled down on sulfasalazine," and that her joints were "okay for the most part." Id. at 28. However, Plaintiff complained of "mild tenderness in the right sacroiliac area." Id. ("Mild tenderness in the right sacroiliac area . . . . Still having pain in the sacroiliac joint on the right and less so on the left.") Pryhuber reported that Plaintiff's sacroiliac pain might be associated with "inflammatory bowel disease." Id. In June 2005 Pryhuber reported that Plaintiff was "still working" at her job as a dental technician, and was still having some swelling in her wrists and ankles. Id. at 29. In ...