Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wirt v. United States

United States District Court, E.D. New York

March 31, 2017

LAURA A. WIRT and LAURA K. RODRIGUEZ, Plaintiffs,
v.
UNITED STATES OF AMERICA, ANGEL LOPEZ, and NEW YORK CITY TRANSIT AUTHORITY, Defendants.

          MEMORANDUM & ORDER

          PAMELA K. CHEN, United States District Judge

         Plaintiffs Laura A. Wirt and Laura K. Rodriguez assert claims of negligence and negligent training against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1671 (“FTCA”), and against the New York City Transit Authority (“NYCTA”) and NYCTA employee Angel Lopez pursuant to New York common law, based on injuries that they allegedly incurred during a motor vehicle accident between a car owned and operated by the United States and a public bus operated by the NYCTA and driven by Lopez. The following motions are before the Court: (i) the United States' motion for summary judgment dismissing each of Wirt's claims, (ii) the United States' motion for summary judgment dismissing each of Rodriguez's claims, (iii) the NYCTA and Lopez's joint motion for a summary judgment finding that it has no liability to any party in the action, and (iv) Plaintiffs' cross-motion for partial summary judgment as to certain elements of their claims. For the reasons stated below, the United States' motions for summary judgment are GRANTED, Plaintiffs' cross-motion for partial summary judgment is DENIED, and the NYCTA and Lopez's motion for summary judgment is GRANTED in part and DENIED in part.

         I. Background[1]

         A. Overview

         On April 23, 2008, around noon, Plaintiff Laura A. Wirt and her daughter, Plaintiff Laura K. Rodriguez, were seated next to each other on a public bus operated by the New York City Transit Authority. (Wirt 56.1 ¶ 5.) As the bus passed through Grand Army Plaza in Brooklyn, the driver, Defendant Angel Lopez, “suddenly, abruptly and without any warning” brought the bus to a halt. (Dkt. 68, Ex. A (Verified Complaint) ¶ 8.) Plaintiffs were propelled forward in their chairs, “started to get a little airborne, ” and then, as the bus was coming to a halt, were jolted back into their seats by the impact of another vehicle-a 2003 Oldsmobile Alero sedan owned by the United States General Services Administration (“GSA”)-colliding with the rear fender of the bus. (USA's 56.1 Response (Wirt) ¶¶ 2, 5.) Both Plaintiffs experienced some degree of pain as a result of being slammed back into their seats. (Dkt. 97-3 (Rodr. Decl.) ¶ 9; Wirt 56.1 ¶ 5.)[2]

         After the accident, Wirt and Rodriguez sought treatment in the emergency room of the Wyckoff Heights Medical Center (“Wyckoff Heights”). (Rodr. 56.1 ¶ 10.) Both Plaintiffs reported pain in their neck, back, and shoulders resulting from the accident. (USA's 56.1 Response (Wirt) ¶ 38; USA's 56.1 Response (Rodr.) ¶ 16.) Both Plaintiffs underwent examinations and received treatment in the emergency room before being discharged. (Wirt 56.1 ¶ 12; Rodr. 56.1 ¶ 10.) Both Plaintiffs received continuing medical treatment after being discharged from Wyckoff Heights, and both Plaintiffs reported experiencing physical and mental pain and suffering in the ensuing years, as summarized in greater detail below. (Wirt 56.1 ¶¶ 24-35; Rodr. 56.1 ¶¶ 20-32.)

         On July 17, 2009, Plaintiffs filed a Verified Complaint in New York state court against the NYCTA, alleging claims of negligence and negligent training under New York common law, and claims for “basic economic loss” and “first party benefits” under New York's “No-Fault” motor vehicle accident statute, N.Y. Ins. Law §§ 5101 et seq. (Dkt. 68, Ex. A (Verified Complaint).) While that case was still pending, in March 2010, Plaintiffs filed administrative tort claims against the GSA, alleging negligence and negligent training pursuant to the Federal Tort Claims Act (“FTCA”). (See Dkt. 7 ¶¶ 18, 49; Dkt. 8 ¶¶ 18, 49.) Thereafter, in November 2010, Plaintiffs commenced this action in federal court, asserting claims of negligence and negligent training against the United States pursuant to the FTCA.[3] (Dkt. 1; see also Dkt. 7 (Am. Compl.).)[4] Through their various negligence claims, Plaintiffs seek to recover non-economic damages for pain and suffering they allegedly experienced as a result of the collision between the GSA vehicle and the NYCTA bus on April 23, 2008. (Dkt. 7; Dkt. 68, Ex. A.) Indeed, as discussed below, because of the No-Fault statutory scheme, Plaintiffs' negligence and negligent training claims, at common law and under the FTCA as well, survive only if Plaintiffs are entitled to non-economic damages by virtue of having suffered a “serious injury.” See Pommells v. Perez, 4 N.Y.3d 566, 571 (N.Y. 2005) (“Only in the event of ‘serious injury' as defined in the statute, can a person initiate suit against the car owner or driver for damages caused by the accident.”).

         B. Plaintiff Wirt's Medical History and Alleged Injuries

         The parties have submitted voluminous documentation of Plaintiff Wirt's medical history.

         1. Wirt's Medical History Before the Accident

         Wirt was fifty-two years old at the time of the April 23, 2008 accident. (USA's 56.1 Response (Wirt) ¶ 14.) For over thirty years before the accident-since Wirt was eighteen years old-she suffered from back pain. (Id. ¶ 15.) At least as of May 2004, Wirt began receiving medical treatment for back pain and ambulation issues. (USA's 56.1 Response (Wirt) ¶¶ 15-16.) In the four years leading up to the April 2008 accident, Wirt made numerous visits to medical providers for treatment of various physical ailments, including significant impairments affecting her neck, spine, and lower extremities.

         In May 2004, Wirt was admitted to Wyckoff Heights for three days due to complaints of severe low back pain and difficulty ambulating. (USA's 56.1 Response (Wirt) ¶ 16.) In April 2005, Wirt underwent x-rays on her right foot and ankle (“April 2005 X-Rays”), which showed degenerative changes in her ankle joint. (Id. ¶ 17.) In May 2005, Wirt was admitted to Wyckoff Heights for five days due to complaints of lower back pain. (Id. ¶ 18.) During that stay, Wirt underwent back x-rays (“May 2005 X-Rays”) that indicated a history of trauma in her upper and lower spine, the formation of bone spurs in certain vertebrae in her upper and lower spine, and a narrowing of the interarticular spaces in her lower spine. (Id.)

         In June 2005, Wirt underwent a magnetic resonance imaging (MRI) that indicated degenerative disc disease, a small herniation in Wirt's T12 and L1 vertebrae, and marked desiccation and loss of volume in other of Wirt's vertebrae. (USA's 56.1 Response (Wirt) ¶ 19.) The report also indicated bone deformities suggestive of sickle cell anemia. (Id.)

         In July 2005, Wirt underwent an MRI (“July 2005 MRI”) that indicated spinal cord compression in certain vertebrae, abnormalities in neural signals from certain vertebrae, bone softening in certain vertebrae, and narrowing of the spinal cord in certain vertebrae. (Id. ¶ 21.) The radiologist who reviewed the July 2005 MRI construed the MRI as indicative of multilevel degenerative disease of the cervical spine with compression of the spinal cord, spinal narrowing, and bone softening in certain locations. (Id.)

         In November 2005, Wirt was admitted to Wyckoff Heights for three days due to uncontrolled diabetes. (Id. ¶ 22.) An examination at Wyckoff Heights indicated that Wirt had a loss of sensation in her feet and that she walked with difficulty. (Id. ¶ 22.) Around the same time, in November 2005, Wirt was referred by a physician to consult with pain management specialists concerning Wirt's complaints of lower back pain radiating to her legs, which Wirt said she had experienced for more than twenty years. (Id. ¶ 23.)

         In February 2006, a pain management physician referred Wirt to physical therapy for pain, weakness, and decreased muscle strength in her lower back, as well as residual pain and weakness in her right ankle. (Id. ¶ 24.) In April 2006, Wirt was again referred to a pain management clinic for her history of arthritis, disk herniation, and chronic back pain. (Id. ¶ 25.)

         In June 2006, a nurse practitioner at the pain management clinic referred Wirt to neurosurgical specialists for evaluation of her history of persistent neck pain and lower back pain. (Id. ¶ 26.) The nurse practitioner noted that the July 2005 MRI had shown compression in Wirt's spinal cord. (Id.)

         In July 2006, Wirt presented to the Wyckoff Heights emergency room, complaining of neck pain and lower back pain. (Id. ¶ 27.) Wirt spent four days in inpatient care, during which time her diabetes was observed as “uncontrolled.” (Id.)

         In September 2006, Wirt was hospitalized at Wyckoff Heights due to uncontrolled high blood pressure and diabetes. (Id. ¶ 28.) Wirt also complained of neck and back pain. (Id.)

         In January 2007, Wirt was again referred by a physician to pain management for evaluation of her degenerative disease of the cervical spine with cord compression and spinal narrowing. (Id. ¶ 29.) Later that month, based in part on a review of the July 2005 MRI, a pain management clinician referred Wirt to neurosurgery for evaluation of her history of persistent neck and lower back pain. (Id.)

         In March 2007, Wirt underwent an MRI (“March 2007 MRI”) that indicated multilevel degenerative disease of the cervical spine, as well as spinal compression and softening. (Id. ¶ 31.) In April 2007, Wirt was seen at the Wyckoff Heights pain management clinic, where a physician observed that Wirt was a long-time patient of the pain management clinic who had been seen for chronic pain associated with multilevel degenerative disc disease of the cervical and lumbar spine with associated spinal narrowing. (Id. ¶ 32.) The physician further noted that Wirt suffered neurological problems in her lower extremities due to diabetes, and that she was taking Percoset for pain relief. (Id.)

         In August 2007, Wirt spent seven days in inpatient care at Wyckoff Heights after being referred to the emergency room there with back and neck pain and elevated blood sugar. (Id. ¶ 33.) The Wyckoff Heights staffperson who conducted Wirt's triage in the emergency room noted that Wirt was wearing a neck brace and ambulating with a cane. (Id.) During her stay in inpatient care, Wirt complained of “severe” chronic back and neck pain, and a neurosurgeon who examined her noted bilateral hand weakness, decreased ranges of motion in her neck and back, and reduced motor strength. (Id.) In September 2007, Wirt was hospitalized in the Jamaica Hospital Medical Center (“Jamaica Hospital”) after presenting to the emergency room with uncontrolled diabetes and cellulitis with left thigh abscess. (Id. ¶ 34.) The triage nurse at Jamaica Hospital observed that Wirt walked with a cane, and Wirt's progress notes state that Wirt complained of neck pain while in the hospital. (Id.)

         In October 2007, Wirt spent three days in inpatient care at Jamaica Hospital for cardiac evaluation. (Id. ¶ 35.) During her stay, Wirt was observed to be using a cane and wearing a soft neck collar. (Id.) Progress notes from the hospitalization state that Wirt complained of neck, shoulder, and back pain, and that she wore a cervical collar while hospitalized. (Id.)

         In December 2007, a pain management clinician referred Wirt to a neurosurgeon for evaluation for possible surgery due to her complaints of severe neck pain radiating to both shoulders, as well as numbness and tingling in her upper extremities, which apparently had worsened in the prior year. (Id. ¶ 36.) The next month, January 2008, Wirt was seen by a neurosurgeon at Wyckoff Heights, who noted that he had examined Wirt in July 2007, but that she had failed to follow through on tests that he had prescribed at that time. (Id. ¶ 37.) The neurosurgeon diagnosed Wirt with chronic neck and back pain, and instructed Wirt to return to the Wyckoff Heights neurosurgery clinic after she underwent additional testing. (Id.)

         As of April 23, 2008, the date of the motor vehicle accident at issue in this case, Wirt had not obtained the additional testing ordered by the Wyckoff Heights neurosurgeon in December 2007.

         2. Wirt's Medical History After the Accident

         On April 23, 2008, approximately three hours after the accident, Wirt presented to the Wyckoff Heights emergency room with complaints of pain in her neck, back, and shoulders. (USA's 56.1 Response (Wirt) ¶ 38.) Wirt told the medical staff and clinicians at Wyckoff Heights that she had been in a motor vehicle accident. (Id.)

         Later in the day on April 23, 2008, Wirt underwent x-rays (“April 23, 2008 X-Rays”) that showed no evidence of fracture or dislocation, but indicated moderate degeneration in Wirt's cervical spine. (USA's 56.1 Response (Wirt) ¶ 39.)[5] Later that day, Wirt was admitted into inpatient care in Wyckoff Heights' family medicine unit, with a status of “post-MVA” (post-motor vehicle accident) with complaints of neck, back, and leg pain but no fractures; uncontrolled diabetes; uncontrolled hypertension; asthma; and rheumatoid arthritis. (Id. ¶ 40.)

         On April 24, 2008, a clinician in Wyckoff Heights' family medicine unit ordered a neurosurgical consult, noting that Wirt had a past medical history of cervical and lumbar narrowing, chronic neck and back pain, and had presented to the emergency room complaining of neck, back, and leg pain after being in a motor vehicle accident. (USA's 56.1 Response (Wirt) ¶ 41.) Later that day, a neurosurgeon examined Wirt, and Wirt told the neurosurgeon that she used a walker 50% of the time and a cane daily, and that she had a history of dropping objects, frequent falls, and urinary incontinence.” (Id. ¶ 42.) The next day, the attending neurosurgeon recommended that Wirt undergo spinal surgery, but Wirt stated that she would prefer to defer surgery at that time. (Id. ¶ 43.)

         On April 27, 2008, a physician in the Wyckoff Heights family medicine unit recorded that Wirt's neck and back pain had resolved, and that she had no pain. (USA's 56.1 Response (Wirt) ¶ 44.) Wirt reiterated that she did not want surgical intervention at that time. (Id.) The next day, April 28, 2008, Wirt reported that she had “mild” neck and back pain, and the attending physician noted that Wirt could be discharged from Wyckoff Heights once she was cleared by neurosurgery. (Id. ¶ 45.)

         On April 28, 2008, Wirt underwent an MRI (“April 28, 2008 MRI”) that indicated a history of spinal narrowing and various abnormalities affecting certain of Wirt's vertebrae, but no acute injury. (Id. ¶ 46.)[6]

         On April 29, 2008, a Wyckoff Heights physician noted that Wirt was stable and had no new neurological deficits. (USA's 56.1 Response (Wirt) ¶ 49.) The physician further noted that Wirt's pain was well controlled with Motrin and that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.