United States District Court, W.D. New York
DECISION AND ORDER
Elizabeth A. Woford, Judge
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. 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
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
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).
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).
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).
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). 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).
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).
Burden of Proof
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)).
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
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.
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
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.
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).
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).
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,  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
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.
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
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
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.
Plaintiffs Pre-Incident History
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).
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).
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).
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).
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).
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.
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.
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.
Investigation of the Incident and Prosecution of
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
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
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).
Plaintiffs Injuries and Medical Treatment
A. Injuries and Treatment in the Immediate Aftermath
of the Incident
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).
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
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).
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).
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).
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).
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).
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
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 ...