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Zhao v. United States

United States District Court, W.D. New York

August 4, 2017

YAN ZHAO, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          DECISION AND ORDER

          Elizabeth A. Woford, Judge

         INTRODUCTION

         Over thirteen years ago, an incident occurred near the Rainbow Bridge in Niagara Falls, New York, that attracted worldwide attention and generated significant criminal and civil litigation.[1] The actual incident was over in a matter of minutes, but the repercussions have lasted for over a decade. This Decision and Order arises out of the Court's handling of the bench trial, held over the course of approximately four weeks in May and June 2015, of the civil lawsuit commenced by plaintiff Yan Zhao (hereinafter "Zhao" or "Plaintiff) against defendant the United States of America (hereinafter "the Government" or "Defendant") pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (the "FTCA").

         The incident underlying this litigation occurred on July 21, 2004, when Plaintiff, who was visiting the United States from China, was mistaken by U.S. Customs and Border Patrol Officer Robert Rhodes III (hereinafter "Rhodes") as a drug smuggler, resulting in an assault from which Plaintiff contends she suffered significant injuries. Having conducted a bench trial in which 18 witnesses testified and hundreds of exhibits were admitted, and after considering all the evidence, the Court finds that Plaintiff has carried her burden of proof to establish, by a preponderance of the evidence, that Rhodes used excessive force on July 21, 2004. However, while the use of excessive force was unlawful and Plaintiff suffered injuries as a result, the assault was not nearly as damaging as claimed by Plaintiff, and the injuries suffered by Plaintiff do not even approach the magnitude she claims. For the reasons set forth below, the Court determines that Plaintiff has established her entitlement to recover four hundred sixty-one thousand one hundred fifty-two dollars and nine cents ($461, 152.09) in damages for the injuries that she has proven she suffered as a result of Rhodes' actions. This Decision and Order constitutes the Court's Findings of Fact and Conclusions of Law pursuant to Fed.R.Civ.P. 52(a).

         PROCEDURAL BACKGROUND

         Plaintiff commenced this action on February 17, 2006, by filing a Verified Complaint pursuant to the FTCA. (Dkt. 1). Plaintiff filed an Amended Complaint, the operative pleading, on July 28, 2006. (Dkt. 10). Defendant filed an answer on July 31, 2006. (Dkt. 11).

         After discovery was completed, both parties filed dispositive motions. (Dkt. 92; Dkt. 96). By Decision and Order filed June 14, 2013, Judge Skretny granted Defendant's motion pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss Plaintiffs claims directed to the alleged negligent hiring, training, supervision, and retention of Rhodes, as those claims involved discretionary determinations and the FTCA did not waive sovereign immunity for any such claims, and denied Plaintiffs motion for partial summary judgment. (Dkt. 112). The Court construed Plaintiffs remaining allegations as asserting claims for assault, false arrest, and excessive force. (Id. at 14 n. 6).

         On October 24, 2014, the case was reassigned to the undersigned. (Dkt. 127). A bench trial commenced on May 11, 2015, and continued through June 9, 2015. (Dkt. 188; Dkt. 206). Prior to commencement of the bench trial, the parties filed several motions in limine, of which the following remain pending: (1) Defendant's motion in limine related to non-economic loss issues, to the extent that it sought to exclude certain of Rhodes' personnel records and evidence of the Report of Investigation ("ROI") generated by the Department of Homeland Security, Office of Professional Responsibility (Dkt. 131); (2) Defendant's motion in limine related to economic loss issues, to the extent that it sought to preclude Plaintiff from seeking certain economic damages and to exclude the testimony of Plaintiff s accounting expert, William A. Hanlin (hereinafter "Hanlin") (Dkt. 134); and (3) Plaintiffs motion in limine, to the extent that it sought to preclude evidence that Plaintiff failed to comply with commands given by Rhodes (Dkt. 137).

         Following the bench trial and in accordance with the Court's direction, Defendant submitted proposed findings of fact and conclusions of law on February 16, 2016. (Dkt. 220; Dkt. 221). Plaintiff submitted proposed findings of fact and conclusions of law on February 17, 2016. (Dkt. 222; Dkt. 223).[2] Both Plaintiff and Defendant filed responses to the other party's initial submissions on March 25, 2016. (Dkt. 229; Dkt. 230; Dkt. 231; Dkt. 232). With the Court's permission, Plaintiff amended her response to Defendant's proposed conclusions of law on April 1, 2016. (Dkt. 234). Defendant filed supplemental submissions on April 8, 2016, and Plaintiff filed a supplemental submission on April 9, 2016. (Dkt. 235; Dkt. 236; Dkt. 237).

         FINDINGS OF FACT

         The following section constitutes the Court's Findings of Fact pursuant to Federal Rule of Civil Procedure 52(a)(1). The Court has made its Findings of Fact based on the testimony and exhibits presented at trial, and has discussed only those issues considered "material to the resolution of the parties' claims." Cliffstar Corp. v. Alpine Foods, LLC, No. 09-CV-00690-JJM, 2016 WL 2640342, at *1 (W.D.N.Y. May 10, 2016) (citations omitted). Moreover, "the distinction between law and fact is anything but clear-cut" and Plaintiffs initial proposed findings of fact and conclusions of law were submitted one day past the Court's deadline of February 16, 2016. (See Dkt. 213). The Court conducted a status conference on February 23, 2016, and its remedy for the late filing was to allow the Government to submit its papers in response to the initial filing one day after the deadline set for Plaintiff. (See Dkt. 225; Dkt. 227). therefore, "for purposes of appellate review, the labels of fact and law assigned" should not be considered controlling. Id. (citations and internal quotations omitted).

         I. Burden of Proof

         Unless otherwise noted, Plaintiff bears the burden to prove her case by a preponderance of the evidence-in other words, Plaintiff must establish that the facts underlying her claims are '"more likely true than not true.'" Brown v. Lindsay, No. 08-CV-2182, 2010 WL 1049571, at *12 (E.D.N.Y. Mar. 19, 2010) (quoting Fischi v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997)).

         II. Plaintiffs Credibility

         Plaintiff testified at the trial over the course of five days. Many aspects of this case rise and fall on Plaintiffs credibility. In particular, the damages claimed by Plaintiff are largely a function of her claims about her pre-incident health and business activity, very few of which have any sort of independent verification. Accordingly, and as a threshold matter, the Court will explain its assessment of Plaintiff s credibility.

         The Court did not find Plaintiff to be a credible witness. The Court's assessment of Plaintiffs credibility is based on its observations of her at trial, including her demeanor and conduct, as well as her testimony and the testimony of other witnesses. The Court found Plaintiff evasive and not forthcoming. She often failed to answer the question that was asked of her and appeared as though she was attempting to hide information. Plaintiff repeatedly appeared to testify to matters that she wanted to discuss, as opposed to answering the questions put to her.

         Plaintiff testified that she only knew a few English words at the time of the incident with Rhodes, that she had subsequently taken English classes, and that she is now able to understand simple words and sentences. (Dkt. 208 at 16:6-17). However, the Court's observations throughout trial, as well as the testimony of other witnesses, indicated that Plaintiffs ability to speak English is far greater than she has claimed. On several occasions, she corrected or interrupted the interpreter who was translating English into Mandarin Chinese (and vice versa), and she also clearly understood and responded to her counsel's objections, at times altering her testimony in response to those objections (made in English). (See, e.g., Id. at 14:2-5, 43:21-24, 220:5-17). Plaintiff was also able to review documents written in English and confirm their content. (See, e.g., Id. at 34:23-36:20). Moreover, Customs and Border Protection Officer Amina Zinnerman (hereinafter "Zinnerman"), who the Court found extremely credible and who witnessed Rhodes' attack on Plaintiff, testified that Plaintiff told her in English on the night of the attack that she had a cell phone in her purse and asked Zinnerman to contact her friend. (Dkt. 211 at 42:5-13). Plaintiffs lack of candor regarding her ability to speak English played a role in the Court's assessment of her credibility.

         The Court was also troubled by other conduct by Plaintiff. She frequently behaved as though she were putting on a show for an audience. For most of the trial, the number of spectators was fairly limited (and at some points, non-existent). However, at one point during the trial, a group of students entered the gallery of the courtroom, on an apparent tour of the courthouse for school. Plaintiffs demeanor changed noticeably upon entry of the students. She quite suddenly became extremely dramatic and emotional, and began to cry loudly, apparently in an attempt to create sympathy for herself. With the students in the audience, Plaintiff offered testimony that she wanted to provide, resorting to information that had already been covered as opposed to responding to counsel's questions.

         There was also evidence that Plaintiff was not forthcoming with her health care providers. Between the incident in 2004 and the time of trial, Plaintiff sometimes lived in the United States and sometimes lived in China. While she was in the United States, she was treated by Jianping Chen, M.D., Ph.D. (hereinafter "Dr. Chen"), a psychiatrist. (Dkt. 219 at 3:20-4:4). When Plaintiff first met Dr. Chen, she told him that she was married and that she had a ten year old son. (Id. at 238:21-239:6; but see 246:18-21 (testifying that Plaintiff told him that she had "no friends or relatives for support in this country")). Dr. Chen subsequently learned that Plaintiff was not married and that she did not have a son. (Id. at 239:23-240:6; see Id. 247:7-12 (testifying that Plaintiffs statements that she did not have any close friends in New York were not accurate)). Significantly, Dr. Chen took Plaintiffs history in Mandarin, so there is no indication that her inaccurate statements were the result of a language barrier. (See Id. at 238:17-18). Plaintiff also would not provide Dr. Chen with contact information for her physicians in China, claiming that it made her uncomfortable. (Id. at 423:10-20).

         Similarly, when Plaintiff met with Steven Stein, Ph.D. (hereinafter "Dr. Stein"), a neuropsychologist and clinical psychologist (Dkt. 218:11-14), she told him that she was married to a man named Linton and that she had a ten year old son who was the product of that relationship (id. at 212:5-12). Dr. Stein subsequently learned that Plaintiff was not married and that she no longer claimed that the child in question was her biological son. (Id. at 212:13-22).

         Plaintiff has attempted to account for these inconsistencies in her recitations of her personal history by asserting that she essentially served as a surrogate mother to her nephew, Wang, after his parents divorced, [4] and that she was in a long-term relationship with a man named Gui Lai Zhao as of July 21, 2004, which she considered a form of marriage. (Dkt. 208 at 11:8-12:11, 247:17-249:10). However, even if the Court credited these statements by Plaintiff (which it does not), she has offered no explanation for why she told Dr. Stein that Wang was her biological child when he clearly was not.[5]

         As discussed in more detail below, Plaintiff claims to have founded a business in China prior to the incident at issue, but she has been unable to provide any meaningful detail regarding the nature of this enterprise and, in fact, she has made a number of inconsistent statements about the precise type of business it purportedly conducts. At trial, Plaintiff claimed that her business produced fitness equipment and that she had plans to branch out into furniture manufacturing (Dkt. 208 at 24:19-22, 30:13-16), yet she told Dr. Chen that she was the general manager of a clothing manufacturing company and was branching out into the medical supply business (Dkt. 219 at 22:5-12; 242:23-243:11, 309:9-12), and she told Dr. Stein that she owned a clothing company that also sold nutritional products (Dkt. 218 at 45:11-14). Again, Plaintiffs changing and inconsistent statements are not indicative of credibility, nor is her lack of candor with her health care providers.

         The Court further notes that Plaintiff made inaccurate statements on an Affidavit of Financial Resources submitted to the New York State Crime Victims Board (hereinafter the "Crime Victims Board") in September 2004. (See Government's Trial Exhibit 553). Specifically, Plaintiff indicated on the form that she had 50, 000 Chinese yuan (¶) in savings and that she owned no stocks, bonds, or real property. (Id.). However, at trial, Plaintiff testified that as of 2004 (and continuing to the present) she owned two houses (See Dkt. 208, at 116:18-118:2), and that she had many different accounts in China and the ¶ 50, 000 she listed was just "one of them" (id. at 305:8-11). Plaintiff has asserted that she is not responsible for these statements because she merely signed the document and was assisted in completing it. (See Dkt. 230 at 26). The Court does not find this explanation compelling. Plaintiff testified at trial that the information on the form came from her. (See Dkt. 208 at 301:16-19).

         Certain aspects of the testimony of Francisco Lopez (hereinafter "Lopez"), Plaintiffs husband, also caused the Court to question Plaintiffs credibility. Lopez, who met Plaintiff in 2006 and has been married to her since 2010 (Dkt. 209 at 49:14-22), testified that he called Plaintiff "Helen" and that she went "through extreme[s] to hide her name" because she felt "her name [was] a burden on her" and that nobody in his family knew Plaintiff by her real name (id. at 52:18-53:6). This testimony by Lopez confirmed the Court's impression that Plaintiff is not a forthcoming person, even with people who are close to her, and that she tries to control information and shape others' perceptions of events to fit her agenda.

         When this Court presides over jury trials, it instructs the jurors to assess the credibility of witnesses using the common sense tests they apply in their everyday lives, including their impressions of the witness' demeanor, frankness, openness, evasiveness, accuracy, and bias. Applying these tests with respect to Plaintiff, the Court did not find her to be a credible witness. Because the Court did not find Plaintiff credible, it has generally given little credit to her testimony. Accordingly, the Court's Findings of Fact have been guided by where there is independent corroboration for Plaintiffs claims and where there is not.

         III. Plaintiffs Pre-Incident History

         Plaintiff was born on April 19, 1976, in Tianjin, China. (Dkt. 208 at 5:18-22). She claimed she graduated from college (id. at 7:20-23), and to have been certified as a music educator (id. at 8:22-9:6), but was not sure when that occurred (id. at 17:6-8). Following her college graduation, Plaintiff reported working as a high school music teacher for approximately 12 years. (Id. at 9:11-15, 17:13-21). She claimed to have subsequently worked in a number of different fields, which included the sale of air tickets with a friend as well as jewelry at a kiosk, and the ownership of a food court restaurant. (Mat 18:2-9).

         Plaintiff testified that she founded a company called Tianjin Zhaomiao Limited Company (hereinafter "TZLC") in 2001. (Id. at 20:23-21:18). According to Plaintiff, she invested approximately ¶ 1, 000, 000 into TZLC, and she owned 80% of the company, while a friend, named Ginwen Gi, owned 20%. (Id. at 21:19-22:17). Plaintiff further testified that TZLC had two locations and sold fitness equipment (id. at 23:10-24:3), though, as noted above, she told Drs. Chen and Stein otherwise. Plaintiff claimed to have eventually bought out Ginwen Gi's interest in TZLC. (Id. at 25:7-17). Plaintiff testified that she was the general manager of TZLC and that it was largely her personal contacts and connections that enabled her to enter into agreements for the production of fitness equipment. (Id. at 25:18-26:18). Plaintiff claimed that, at the time of the incident with Rhodes, she had plans to enter into additional business areas, including furniture and decoration. (Id. at 29:13-30:12).

         IV. The Incident

         In or about May of 2004, Plaintiff apparently met in Beijing with representatives of the Pennsylvania Department of Community and Economic Development to discuss the possibility of TZLC establishing an office and purchasing a furniture manufacturing facility in Pennsylvania. (See Trial Exhibit 128 at 1). Plaintiff and her associates were to visit Pennsylvania from June 21, 2004, to June 25, 2004, to "learn[] about the work and living environment in Pennsylvania" and to visit potential business sites. (Id.). Plaintiff did subsequently come to the United States and attend meetings in Pennsylvania, after which she traveled to New York State to visit her friend Jennifer Shell. (Dkt. 208 at 39:24-40:10). Plaintiff initially took a bus to New York City (id. at 40:15-20), and left for Niagara Falls on July 21, 2004, as part of a tour group (id. at 45:9-14). During the bus trip from New York City to Niagara Falls, Plaintiff met two other Chinese women, Xie Fang and Ming Huang. (Id. at 46:6-12).

         After dinner on July 21, 2004, the tour guide suggested that the group go to the Rainbow Bridge, and then to the Niagara State Park to view Niagara Falls at night. (Id. at 46:23-47:3). Xie Fang suggested that she, Plaintiff, and Ming Huang take a picture by the Rainbow Bridge, and the three women walked together to the park. (Id. at 47:4-11). As Plaintiff and her companions walked closer to the Rainbow Bridge, two men told them that they could not walk past a certain point because they were not United States citizens and did not have a Canadian visa. (Id. at 50:4-12). Plaintiff and her companions intended to take a photograph of themselves beneath a sign that said "to Canada." (Id. at 50:13-16).

         On July 21, 2004, Rhodes was assigned to work at the bus terminal at the United States-Canada border in Niagara Falls. (Dkt. 207 at 12:12-15). Rhodes was first employed by the United States Custom Service in 1987 and, at the time of the incident, was a Customs and Border Protection Officer. (Id. at 7:13-24, 12:12-17). At approximately 11:15 p.m., Rhodes was sitting in booth number two at the bus terminal when a man who later became known to him as Dennis Leathers (hereinafter "Leathers") approached in order to be cleared to enter the United States from Canada. (Id. at 13:22-14:4). Rhodes cleared Leathers for entry. (Dkt. 228 at 22:16-20). Customs and Border Protection Officer Angelo Arcuri (hereinafter "Arcuri"), who was also assigned to the bus terminal that evening, subsequently observed that Leathers had a protruding bulge in his lower back. (Id. at 22:24-23:4). Arcuri approached Leathers and asked him "what he had." (Id. at 23:23-25). Leathers and Arcuri engaged in a physical confrontation, which ended with Arcuri handcuffing Leathers. (Id. at 24:10-23). Arcuri discovered that Leathers had marijuana on his person, and asked Leathers "who is with you, who is with you?" (Id. at 44:25-45:6). Leathers stated that he was alone and that it was his marijuana. (Id. at 45:4-6). Arcuri asked Rhodes who else had come in with Leathers, and Rhodes indicated that Leathers had been accompanied by a light-skinned black woman and two Asian women. (Id. at 48:9-50:3). Rhodes then radioed for additional assistance but, rather than wait for assistance to arrive, he ran out the door. (Id. at 50:23-51:5).

         As Plaintiff and her companions began walking back to their hotel, she observed a black man with a white shirt (presumably Leathers) lying on the ground in the bus terminal and saw "a cop staying by him and waving to us." (Dkt. 208 at 54:10-13). Plaintiffs companions stated that the "cops" probably needed help, at which point the "cop [Rhodes] [ran] out into [them]." (Id. at 54:13-15).

         Unsurprisingly, Rhodes' and Plaintiffs versions of their encounter vary dramatically. To be clear, while Plaintiff was not a credible witness, the Court also did not find Rhodes credible and does not credit his version of these events. His demeanor and conduct at trial were not indicative of credibility, and he was contradicted in several key regards by other witnesses, whom the Court did find credible. The portions of Plaintiffs testimony that the Court has credited are included in its description of the incident, but for the most part, the Court bases its Findings of Fact as to the incident on the testimony of the other witnesses.

         As Rhodes ran towards Plaintiff, her companions ran away, but she did not. (Dkt. 208 at 58:11-22). Rhodes immediately took out a can of pepper spray and began spraying Plaintiff. (Id. at 59:3-25). Customs and Border Protection Officer Emmett Russell ("Russell") was working at the Rainbow Bridge that evening and received a call for help over the two-way radio. (Dkt. 209 at 5:20-6:7). He headed towards the bus terminal and, on arrival, observed Plaintiff and Rhodes near the pedestrian exit. (Id. at 8:11-16). Russell saw Rhodes "forcefully propel[]" Plaintiff into the side of the building (id. at 12:3-10), and saw that her head hit the wall as she rebounded off it (id. at 12:11-13, 14:15-18). Russell testified that he never heard Rhodes give Plaintiff any commands (id. at 14:22-15:6) and that Zinnerman, who had accompanied him to the bus terminal, also saw Rhodes throw Plaintiff into the wall and said "oh, shit." (Id. at 15:12-16:7). Zinnerman testified that she witnessed Rhodes throwing Plaintiff (Dkt. 211 at 15:6-14) and that she could feel the effects of the pepper spray Rhodes had used on Plaintiff (id. at 16:15-18). Russell and Zinnerman began trying to handcuff Plaintiff. (Dkt. 209 at 19:10-21:4, 23:22-25). Zinnerman testified that Plaintiff was on her knees face down in the fetal position when Zinnerman reached her (Dkt. 211 at 18:5-10), and that Rhodes subsequently took Plaintiffs hair into his hands, kneed Plaintiff in the head three times, and slammed her head into the ground twice (id. at 21:3-23). Zinnerman never observed Plaintiff trying to strike or kick any officer, nor was she flailing or moving her arms around. (Id. at 26:20-27:2). Russell also testified that he did not observe Plaintiff being "assaultive, " nor did he consider her a threat to himself or anyone else. (Dkt. 209 at 18:2-25). Zinnerman testified that Rhodes was larger and taller than Plaintiff (see Dkt. 211 at 19:25-20:10), and the Court's own observations at trial confirmed that Plaintiff is a small woman and that Rhodes is significantly larger. Russell also witnessed Rhodes kneeing Plaintiff in the head (Dkt. 209 at 26:17-24) and grabbing Plaintiff by the hair and slamming her head into the ground (id. at 28:9-18). Plaintiff was stationary at that time. (Id. at 29:7-9). Russell put his hand on Rhodes' shoulder and said Rhodes' name in a "directing him to stop type way, " at which point Rhodes stopped and Russell and Zinnerman were able to finish handcuffing Plaintiff and stand her up. (Id. at 29:10-22, 32:19-33:3). Russell testified that the amount of force he observed Rhodes using was unreasonable. (Id. at 31:2-7). Russell estimated the time between when he first saw Rhodes and Plaintiff and when Plaintiff stood up was no more than two minutes, while Zinnerman testified that it was "maybe" two to three minutes. (Id. at 41:11-18; Dkt. 211 at 44:13-18). The Court found Russell and Zinnerman extremely credible and accordingly fully credits their description of Rhodes' actions towards Plaintiff, which are consistent with one another.

         V. Investigation of the Incident and Prosecution of Rhodes

         On July 21, 2004, Steven MacMartin (hereinafter "MacMartin") was a senior special agent with Immigration and Customs Enforcement's Office of Professional Responsibility ("OPR"). (Dkt. 211 at 51:7-14). MacMartin testified at trial, and the Court found him credible. On the night of the incident at issue, he received a call from the Rainbow Bridge, and eventually spoke to Supervisor Customs Inspector Mahady (hereinafter "Mahady"). (Id. at 52:20-53:7). MacMartin's investigation of the incident in question resulted in production of the ROI, which is also sometimes referred to as the "Redbook." (Id. at 54:6-15).

         Mahady informed MacMartin that there had been an incident involving a civilian and that two Customs and Border Protection officers had alleged that a third officer had kneed and/or knocked the civilian in the head while she was on the ground, and that she had been pepper-sprayed. (Id. at 55:16-56:5). MacMartin began his investigation immediately by calling his partner and supervisor and traveling to the Rainbow Bridge to interview the involved parties, including Plaintiff. (Id. at 56:24-57:4). The next day, MacMartin spoke with individuals from the U.S. Attorney's Office to inform them of his preliminary findings, one of whom requested that MacMartin begin preparing an affidavit in case it became necessary to obtain a search warrant. (Id. at 85:20-86:25). MacMartin prepared such an affidavit, in which he stated that there was probable cause to arrest Rhodes for having unlawfully deprived Plaintiff of her rights to personal security and liberty without due process of law. (Id. at 87:17-88:8; see also Trial Exhibit 36). A search warrant was issued to permit a search of Rhodes to ascertain whether he had been injured during the incident; the search was performed the following morning and did not reveal "very many extensive injuries" on Officer Rhodes. (Id. at 88:9-89:8).

         On August 11, 2004, a federal grand jury returned an indictment charging Rhodes with a one-count violation of 18 U.S.C. § 242, Deprivation of Rights Under Color of Law. (See Case No. 1:04-cr-00196-RJA-HBS, Dkt. 3). Rhodes was tried before a jury and found not guilty on September 8, 2005. (See Id. at Dkt. 100).

         VI. Plaintiffs Injuries and Medical Treatment A. Injuries and Treatment in the Immediate Aftermath of the Incident

         Following Rhodes' attack on Plaintiff, Zinnerman and Russell escorted her back to the terminal. (Dkt. 209 at 32:19-24). Zinnerman and Russell did not observe Plaintiff lose consciousness at any point during the incident, and she was conscious when brought to a standing position. (Dkt. 209 at 42:23-25; Dkt. 211 at 38:10-12, 40:2-4, 40:21-41:3). Plaintiff walked into the building under her own power. (Dkt. 209 at 43:16-18). Russell observed that Plaintiffs eyes and cheeks were very red and swollen (consistent with the use of pepper spray) and that she had a laceration on her forehead. (Id. at 34:20-36:13). Zinnerman washed Plaintiffs eyes with a saline-type solution and observed that she had swollen eyes, bruising and abrasions on her face, and a knot on her head. (Dkt. 211 at 24:7-25:11). Photographs of Plaintiff taken after the incident are consistent with Zinnerman's and Russell's descriptions of her injuries. (See Trial Exhibits 151, 402-410).

         Cheri Schmitt (hereinafter "Schmitt") was working as an Advance Life Support ("ALS") paramedic for Rural Metro Services on July 21, 2004. (Dkt. 211 at 100:23-101:3, 103:21-104:10). Schmitt testified at trial and the Court found her credible. At approximately 11:30 p.m., she received a call to report to the Rainbow Bridge, where she arrived at 11:36 p.m. (Id. at 105:10-14). Schmitt understood the call to be in regard to an allergic reaction. (Id. at 105:15-19). When Schmitt arrived at the Rainbow Bridge, Plaintiff was conscious, alert, and oriented. (Id. at 128:14-15). Schmitt assessed Plaintiff pursuant to the Glasgow Coma Scale and gave her a score of 15, representing the highest level of consciousness. (Id. at 128:19-129:5). Plaintiffs chief complaint was facial pain, her respiration and pulse were normal, and she was not suffering from any cardiac issues. (Id. at 113:2-14, 126:13-23, 127:22-24). Schmitt observed that Plaintiffs eyes were bruised and that she had pooling under her eyes and "a large hematoma in the middle of her forehead." (Id. at 107:7-14). Schmitt believed, based on her training and observations, that Plaintiff had suffered a "severe head trauma." (Id. at 107:23-25). Schmitt and her partner immobilized Plaintiff (id. at 108:11-18; 113:19-114:4), and the ambulance transported Plaintiff to Niagara Falls Memorial Medical Center ("NFMMC"), arriving at 11:59 p.m. (id. at 116:21-23; see also Trial Exhibit 58).

         Plaintiffs medical records from NFMMC indicate that she was treated for a head injury. (Trial Exhibit 58 at 8). On physical examination, her left knee was tender, she had a small abrasion in the area of the patella, she had a contusion on the left side of her forehead, and she had swelling and bruising around both eyes. (Id. at 9). Staff at NFMMC performed a CT scan of Plaintiffs head and facial bones, which revealed a moderate left frontal scalp hematoma, no intracranial hemorrhage or skull fracture, and no facial bone fracture. (Id. at 15). An x-ray of Plaintiff s left knee showed that it was intact. (Id. at 19). Plaintiff was assessed with a contusion to her head, face, and left knee and was discharged with a prescription for Tylenol with Codeine and instructions to ice locally and follow up as needed. (Id. at 16).

         Plaintiff returned to New York City by bus on July 22, 2004. (Dkt. 211 at 75:8-11). By 9:00 p.m. on July 22, 2004, Plaintiff had retained and was represented by Stanley J. Legan, Esq. (hereinafter "Legan") of the Ross Legan Law Firm ("Ross Legan"). (See Trial Exhibit 82). That same evening, Plaintiffs "good friend, " a man whose last name is Liu, transported her to the emergency room of a hospital in Queens, New York. (Dkt. 208 at 207:4-20). CT scans of Plaintiff s brain taken at this hospital were unremarkable. (Dkt. 215 at 12:23-24).

         Legan referred Plaintiff to Douglas Monasebian, M.D. (hereinafter "Dr. Monasebian"), a plastic surgeon with special emphasis on the face and maxillofacial region, who testified at trial. (Dkt. 215 at 5:4-25). Dr. Monasebian first saw Plaintiff on July 28, 2004, so that he could provide a report to her lawyers. (Id. at 7:22-8:3). Dr. Monasebian communicated with Plaintiff through a translator, Lan Tao Sun, whose qualifications Dr. Monasebian knew nothing about, and who worked for Ross Legan. (Mat 9:7-18; 11:13-18).

         Plaintiff complained to Dr. Monasebian of pain on the left side of her face near her left temporomandibular joint ("TMJ"), blurry vision, and difficulty seeing out of her right eye. (Id. at 15:2-5; 20:8-16). Dr. Monasebian observed that Plaintiff had a conjunctival hemorrhage around her right eye, which is a leakage of blood around the eye ball and eye lid. (Id. at 26:19-22, 27:2-6). Plaintiff had swelling in her left facial area and was unable to open her mouth more than 20 millimeters, less than half the normal amount. (Id. at 19:2-4; 23:16-18, 26:13-17). Dr. Monasebian also noted swelling around the forehead and abrasions on the forehead. (Id. at 21:8-17). Dr. Monasebian opined that Plaintiffs injuries were the result of blunt force facial trauma and that her ocular injury was best managed by an ophthalmologist and her TMJ and dental injuries were best managed by a dentist. (Id. at 40:4-41:4). As of July 28, 2004, Dr. Monasebian's opinion was that Plaintiff was disabled due to crime-related injuries. (Id. at 105:4-16, 107:6-9, 108:7-9).

         Dr. Monasebian saw Plaintiff for a follow up on September 24, 2004. (Id. at 55:9-18). She continued to complain of pain in her face (id.), but her bruises and contusions had resolved (id. at 100:14-18). Dr. Monasebian's bills were submitted to the Crime Victims Board. (Id. at 64:15-19).

         The Court generally found Dr. Monasebian credible with regard to his observations of Plaintiff s injuries. The Court partially credits Dr. Monasebian's opinion that Plaintiff was disabled as of July 28, 2004, but notes that Dr. Monasebian did not opine as to how long that disability was expected to last and he expressly stated that, depending on the kind of work Plaintiff did, she might still have been able to perform it. (See Id. at 143:5-12). The Court further notes that Dr. Monasebian last saw Plaintiff in March 2006 (more than a decade ago) and thus was not able to testify regarding her current medical condition. (See Id. at 61:10-12).

         Also on July 28, 2004, Plaintiff underwent an orthopedic examination by Walter Ploski, M.D. (hereinafter "Dr. Ploski"). Dr. Ploski, who did not testify at trial, assessed Plaintiff with cervical derangement, low back derangement, facial injuries, strain and sprain of both shoulders, strain and sprain in the right wrist, headaches, dizziness, tinnitus, contusion and abrasion of the left knee, and right thigh strain. (Trial Exhibit 345 at 2). Dr. Ploski prescribed physical therapy for Plaintiff. (Id. at 3). The Court credits Dr. Ploski's evaluation to the extent ...


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