Avlonitis v. United States

SPYROS AVLONITIS, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

16-CV-2521 (PKC) (SMG)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 13, 2020

FINDINGS OF FACT & CONCLUSIONS OF LAW

PAMELA K. CHEN, United States District Judge:

Plaintiff Spyros Avlonitis brought this action against Defendant United States of America pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., for personal injuries sustained as a result of an automobile collision on April 22, 2015. A bench trial was held on June 10 and 11, 2019. (June 10, 2019 Minute Entry; June 11, 2019 Minute Entry.) The parties thereafter submitted proposed findings of fact and conclusions of law. (Dkts. 41, 42.) Based on a review of the testimony and evidence introduced at trial, as well as the parties' post-trial submissions, the Court renders the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52. See Fed. R. Civ. P. 52(a)(1) ("In an action tried on the facts without a jury . . . the court must find the facts specially and state its conclusions of law separately."). For the reasons set forth below, the Court finds in favor of Defendant.

FINDINGS OF FACT

I. The Collision

On April 22, 2015, Plaintiff, driving a 2008 Volkswagen, and United States Postal Service ("USPS") employee Damissha Linval, driving a "two-ton" USPS truck, were involved in an automobile collision. (Trial Transcript ("Tr.") at 13:13-18, 14:11-14, 129:14-25, 130:4-6.) The collision occurred near the corner of 47th Street and Broadway in Queens, New York. (Id. at 14:23-15:13.)

At approximately 3:00 p.m., Plaintiff was driving on 47th Street towards the intersection with Broadway. (Id. at 15:14-15:16, 137:15-17.) On this block, 47th Street has one lane of traffic and two rows of parked cars on either side. (Id. at 15:17-25, 131:19-24, 132:5-7; see also Defendant's Exhibit ("Def.'s Ex.") C2.) The traffic on this block is one-way. (Tr. at 15:17-19.) There was no traffic on 47th Street at the time of the accident, and nothing obstructed Plaintiff's view of the road. (Id. at 17:22-18:3.) Plaintiff's vehicle was moving between approximately 15 and 20 miles per hour, and he was wearing a seatbelt. (Id. at 25:5-6, 65:8-16.) The postal truck was parked halfway up the block on the left side of the road, in line with the row of parked cars. (Id. at 134:10-135:4.) At no point did Plaintiff see the truck move. (Id. at 19:19-22.) Immediately before the accident, Plaintiff looked ahead and saw that the traffic signal at the intersection of 47th Street and Broadway was green. (Id. at 20:21-21:2.) Plaintiff attempted to drive past the postal truck and through the intersection. (Id. at 18:7-12.)

At around 3:00 p.m. on April 22, 2015, USPS employee Linval was completing a delivery at 32-06 47th Street. (Id. at 137:15-17.) It was Linval's third time driving a two-ton USPS truck. (Id. at 164:24-165:8.) After finishing the delivery, she climbed back into the two-ton USPS truck, shut the door, and fastened her seatbelt. (Id. at 137:21-137:25.) She then checked the truck's three mirrors and, when she did not see any approaching vehicles, began "inching out" into the flow of traffic.¹ (Id. at 138:1-4, 139:1-3, 139:17-18.) The mirrors on the two-ton USPS truck do not allow the driver to see everything on the right side of the truck. (Id. at 140:21-141:4.)

As Linval was pulling out from the curb, at around 3:05 p.m. on April 22, 2015, the front left side of Plaintiff's car and the front right wheel of the postal truck collided. (Id. at 130:4-8, 143:25-144:22, 145:15-17.) The damage to Plaintiff's vehicle primarily consisted of a flat tire and scratches in the front left area. (Id. at 55:4-15, 173:11-13.) The USPS truck was largely undamaged, save for some scratches to the lug nuts on the front right wheel. (Id. at 145:2-17, 174:9-18; see also Def's Ex. C8.)

After the collision, Plaintiff drove his car past the postal truck to the intersection of 47th Street and Broadway, and proceeded to park on the left-hand side of the street to get out of the way of traffic. (Tr. at 22:12-17, 55:25-56:5.) Immediately after parking, Plaintiff exited his car and walked to the postal truck, where Linval was located. (Id. at 56:6-11.)

Linval called her manager, Marie Entrades, the supervisor that day, Judy Caserta, and the police, per USPS protocol. (Id. at 147:19-148:13, 170:19-24.) Entrades arrived at the scene at around 3:30 p.m. (Id. at 172:8-18.) After arriving, Entrades asked Plaintiff if he was okay, to which Plaintiff replied in the affirmative, stating that he did not require medical attention. (Id. at 25:15-23, 175:8-16.) Entrades gave Linval an accident report form and a blank piece of paper on which to write her statement. (Id. at 178:2-7.) Entrades also used her phone to take pictures at the scene. (Id. at 184:2-7; see also Def's Ex. C.)

The police arrived at the scene after approximately two and a half hours. (Tr. at 180:15.) While waiting, Plaintiff repeatedly walked back and forth, smoked cigarettes, got into and out ofhis car without assistance, and made phone calls. (Id. at 56:12-14, 57:2-18, 146:25-147:16, 149:2-18.) After some time, Plaintiff walked down the block and across Broadway to meet his then-girlfriend and now wife, Anais Avlonitis, so that she could give him his insurance card and registration. (Id. at 58:12-23, 118:14-17, 176:16-23.) Even though Ms. Avlonitis offered to wait with Plaintiff at the accident scene, Plaintiff insisted that it was not necessary and that he "[would] be okay." (Id. at 58:24-59:4, 120:1-5.) At the time, Ms. Avlonitis did not notice any injuries on Plaintiff; at most, he seemed slightly pale. (Id. at 119:2-8.) Approximately two hours after the accident, Plaintiff called 911 for an ambulance. (Id. at 60:7-20.)

II. Plaintiff's Medical Treatment

Plaintiff was transported via ambulance to Elmhurst Hospital, where he complained of neck pain, headache, nausea, and dizziness. (Id. at 26:20-23; Def.'s Ex. E, at 4.) After an examination, Elmhurst Hospital staff concluded that Plaintiff had no head trauma and a normal neurological exam. (Def.'s Ex. E, at 8.) Plaintiff also underwent a CT scan of his cervical spine that showed no evidence of a cervical spine fracture, no disc disease or joint arthritis, and no soft tissue injuries. (Id. at 30; see also Tr. at 60:21-23.) Plaintiff was discharged from the hospital at around 1:00 a.m. on April 23, 2015. (Tr. at 28:3-5; see also Def.'s Ex. E, at 7.) At discharge, Plaintiff was alert and oriented, with vital signs in normal limits, and reported a pain level of zero. (Def.'s Ex. E, at 7.) Plaintiff left the hospital, unaccompanied, in a taxi. (Tr. at 28:6-9; Def.'s Ex. E, at 7.) Plaintiff's discharge papers stated that he could return to work in two days. (See Def.'s Ex. E, at 25.)

Later that day, Plaintiff met with both an attorney and Dr. Christopher Kyriakides. (Tr. at 28:16-18, 70:19-21, 71:1-16; Plaintiff's Exhibit ("Pl.'s Ex."), at 2.) Plaintiff has known Dr. Kyriakides for "a long time," as a customer at the restaurant where Plaintiff was working. (Tr. at 28:16-18.) At his appointment with Dr. Kyriakides, Plaintiff complained of pain, mainly in hisneck as well as sporadically in his shoulder. (Id. at 29:3-7.) Dr. Kyriakides prescribed pain medication, physical therapy, and trigger point² injections. (Id. at 29:15-30:6, 71:17-19.) Plaintiff went to physical therapy for "at least six months." (Id. at 29:20-24.)

Plaintiff also underwent diagnostic testing at Dr. Kyriakides's suggestion. (Pl.'s Ex. 2.) On May 15, 2015, Plaintiff underwent an MRI of his cervical spine conducted by Thomas Kolb, M.D., who reported that Plaintiff had sustained disc herniations at C3-C4 and C5-C6 that were impinging on the thecal sac.³ (Pl.'s Ex. 5.) Dr. Kolb also found that the discs were of normal height. (Id.) On June 22, 2015, Plaintiff underwent an MRI of his lumbar spine conducted by Jacob Lichy, M.D., who reported that Plaintiff had herniations at L4-L5 and L5-S1. (Pl.'s Ex. 6.) Finally, Plaintiff underwent electrodiagnostic testing on July 8, 2015. (Pl.'s Ex. 3.) Debra Ibrahim, D.O., conducted this testing and found that Plaintiff suffered from bilateral L5 radiculopathy. (Id.)

On September 9, 2015, Plaintiff was examined by Dr. Andrew Miller, an orthopedic surgeon. (Tr. at 74:12-20, 322:1.) Dr. Miller concluded that Plaintiff had neck and back sprains that had resolved and that there was no orthopedic disability of any kind. (Id. at 322:8-322:13.)

On September 12, 2016, Plaintiff was examined by Dr. David Adin, who Plaintiff called as an expert witness at trial.⁴ (Id. at 220:20-223:11, 226:17-227:3.) Plaintiff was referred to Dr. Adin by Dr. Kyriakides. (Id. at 34:5-6; 72:12-14, 235:9-11.) At this initial appointment with Dr. Adin, Plaintiff complained of neck pain following the accident on April 22, 2015. (Id. at 222:20-223:11.) Physical examinations on September 12 and October 17, 2016 showed that Plaintiff was neurologically normal, but that there were deficits in the range of motion of Plaintiff's neck. (Id. at 224:2-11, 225:9-22.) Specifically, Plaintiff had a positive "Spurling's Maneuver⁵ to the right side" and "deficits in range of motion of his cervical spine." (Id. at 224:6-8; see also id. at 241:16-25.) Dr. Adin found the deficits in Plaintiff's range of motion to be significant. (Id. at 246:2-6.) On December 6, 2016, Dr. Kyriakides performed EMG/NCV testing that showed that Plaintiff had C5-C6 radiculopathy, meaning that Plaintiff had some impingement on his nerves. (Id. at 236:12-237:9.)

Based on his two examinations, Dr. Adin performed a percutaneous discectomy on Plaintiff's cervical spine at C3-C4 and C5-C6 on December 28, 2016. (Id. at 224:17-24, 232:6-12.) A percutaneous discectomy is a procedure in which a needle is inserted into a disc in order to remove fluid or a disc fragment. (Id. at 278:16-21, 364:5-13.) It is considered an investigational...