Catania v. United States

ELIZABETH M. CATANIA, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

14-CV-00553A(F)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

December 11, 2017

REPORT and RECOMMENDATION

DECISION and ORDER

APPEARANCES:

WILLIAM MATTAR, P.C.

Attorneys for Plaintiff

C. DANIEL McGILLICUDDY,

F. DAVID RUSIN, and

MATTHEW JOSEPH KAISER, of Counsel

6720 Main Street

Suite 100

Williamsville, New York 14221

JAMES P. KENNEDY

ACTING UNITED STATES ATTORNEY

Attorney for Defendant

MARY K. ROACH

Assistant United States Attorney, of Counsel

Federal Centre

138 Delaware Avenue

Buffalo, New York 14202

JURISDICTION

On September 30, 2014, Honorable Richard J. Arcara referred this case to the undersigned for all pretrial matters including preparation of a report and recommendation on dispositive motions. The matter is presently before the court on Defendant's motion for summary judgment (Dkt. 40), filed December 22, 2016, and on Plaintiff's cross-motion for an extension of time to complete discovery (Dkt. 47), filed March 17, 2017.¹

BACKGROUND

On July 9, 2014, Plaintiff Elizabeth M. Catania ("Plaintiff"), commenced this action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 ("FTCA" or "the Act"), seeking to recover for personal injuries allegedly sustained in a May 7, 2013, motor vehicle collision between a vehicle owned and operated by Plaintiff and a vehicle owned by Defendant United States of America ("Defendant" or "Government"), and operated by Keil Milbrand ("Milbrand"). Defendant's answer (Dkt. 7) was filed September 29, 2014.

In the court's initial Scheduling Order filed November 12, 2014 (Dkt. 12), the deadline for Plaintiff to disclose any expert witnesses and to provide expert witness reports was set as September 12, 2015. Plaintiff's expert witness disclosure deadline was extended three times, with the most recent deadline set forth in the Third Amended Scheduling Order (Dkt. 34) as June 8, 2016.

The parties have participated in several mediation sessions, with the last mediation session held on January 22, 2015, following which a Mediation Certification was filed November 9, 2016, indicating the case has not settled, but the parties may schedule another mediation session at a later date.

On December 22, 2016, Defendant filed the instant motion for summary judgment (Dkt. 40) ("Defendant's Motion"), the Declaration of Assistant United States Attorney ("AUSA") Gail Y. Mitchell (Dkt. 41) ("Mitchell Declaration"), Defendant's Statement of Material Facts Not in Dispute Pursuant to Local Rule 56.1 (Dkt. 42) ("Defendant's Statement of Facts"), exhibits A through Q (Dkts. 43-1 through 43-14) ("Defendant's Exh(s). ___"), and the Memorandum of Law in Support of United States' Motion for Summary Judgment (Dkt. 44) ("Defendant's Memorandum").

On January 27, 2016, Plaintiff identified as expert witnesses, inter alia, treating physicians Edward D. Simmons, M.D. ("Dr. Simmons"), and A. Marc Tetro, M.D. ("Dr. Tetro"), and treating chiropractor Julius Horvath, D.C. ("Dr. Horvath"). Plaintiff, however, did not produce any expert witness reports for these three treating sources until January 27, 2017.

On March 17, 2017, Plaintiff filed a cross-motion seeking an extension of time to serve expert witness disclosure for her treating physicians and chiropractor (Dkt. 47) ("Plaintiff's Motion"), attaching the Attorney Affidavit of C. Daniel McGillicuddy (Dkt. 47-1) ("McGillicuddy Affidavit"), exhibits A through R (Dkts. 47-2 through 47-19) ("Plaintiff's Exh(s). ___"), the Memorandum of Law in Support of the Cross-Motion of Ms. Catania and in Opposition to the Motion of the Government (Dkt. 47-20) ("Plaintiff's Memorandum"), and Plaintiff's Local Rule 56 Statement of Material Facts (Dkt. 47-21) ("Plaintiff's Statement of Facts"). On March 23, 2017, Plaintiff filed an amended version of Plaintiff's Exh. Q (Dkt. 48) ("Plaintiff's Exh. Q"). On May 15, 2017, Defendant filed Defendant's Memorandum of Law in Opposition to Plaintiff's Cross-Motion for Extension of Time to Serve Expert Disclosure (Dkt. 52) ("Defendant's Response"), the Affidavit ofAUSA Gail Y. Mitchell (Dkt. 53) ("Mitchell Response Affidavit"), and Defendant's Reply Memorandum of Law (Dkt. 54) ("Defendant's Reply"). On May 26, 2017, Plaintiff filed the Attorney Affidavit of Matthew K. Kaiser, Esq., in Reply (Dkt. 55) ("Kaiser Affidavit"), attaching the Reply Memorandum of Law in Further Support of the Cross-Motion of Ms. Catania (Dkt. 55-1) ("Plaintiff's Reply"). This court's June 19, 2017 Text Order (Dkt. 57), directed Defendant to file by July 7, 2017, a sur-reply to Plaintiff's Motion. Accordingly, on June 29, 2017, Defendant filed the Affidavit of AUSA Mary K. Roach in Further Support of Defendant's Opposition to Plaintiff's Cross-Motion (Dkt. 58) ("Roach Affidavit"), and the Sur-Reply Memorandum of Law (Dkt. 59) ("Defendant's Sur-Reply"). Oral argument was deemed unnecessary.

Based on the following, Plaintiff's Motion is DENIED; Defendant's Motion should be GRANTED.

FACTS²

The Collision

At 7:42 A.M. on Tuesday, May 7, 2013, a collision occurred in the southbound lane of Elmwood Avenue in Buffalo, New York ("the collision"), between two vehicles including a vehicle owned and operated by Plaintiff Elizabeth M. Catania ("Plaintiff" or "Catania") ("Plaintiff's vehicle"), and a vehicle owned by Defendant United States of America ("Defendant" or "Government") ("Defendant's vehicle"), and operated by Keil J. Milbrand ("Milbrand") who, although not a Government employee but a New York State Parole Officer, was then assigned to the Federal Bureau of Investigation ("FBI") SafeStreets Task Force and on duty as a Task Force Officer. The New York State Department of Motor Vehicles Police Accident Report ("accident report")³ issued by the Buffalo Police Department ("Buffalo Police"), pertaining to the collision indicates Plaintiff's vehicle turned into Defendant's vehicle while Milbrand was attempting to pass, resulting in a side-swipe collision. According to the accident report, there was damage to both vehicles, but no injuries, yet following the collision, Plaintiff presented to the emergency room at Buffalo General Medical Center ("Buffalo General"), complaining of neck pain radiating into her right leg, was diagnosed with a contusion and whiplash and given a one-day excuse from work. At the time of the collision, Plaintiff was employed on a per diem basis as a substitute teacher with the Buffalo Public School District.

Medical History

On August 16, 2012, Plaintiff was examined by her primary care physician Xinyue Liu-Chen, M.D. ("Dr. Liu-Chen"), in connection with complaints of severe left-sided neck and right upper back pain, particularly manifesting as severe sharp pain when turning her head. Defendant's Exh. L at Bates 713 (Dkt. 43-7 at 14). Plaintiff reported no known injury, but merely awoke with the severe pain. Id. Examination revealed decreased range of motion ("ROM"), in her cervical back with tenderness, bony tenderness and spasm, but no swelling. Id. at Bates 714 (Dkt. 43-7 at 15). Cervical spine X-rays taken August 17, 2012, were negative, and Plaintiff's acute neck pain was attributed to neck muscle spasm, for which conservative treatment was planned, including heating pad, massage, Motrin and Flexeril for three days, tapering to as needed. Id.

On September 5, 2012, Plaintiff continued to complain of "very bad pain from the top of her neck to her shoulder blades," for which Dr. Liu-Chen referred her for physical therapy. Defendant's Exh. L at Bates 728 (Dkt. 43-7 at 22). On September 7, 2012, Plaintiff underwent initial evaluation by Physical Therapist Laura Vargovich ("PT Vargovich"), for right cervical pain of insidious onset, described as burning and tingling down her right arm with frequent headaches, and turning her head increased the pain. Id. at Bates 729-35 (Dkt. 43-7 at 17-22; Dkt. 43-8 at 1). Plaintiff reported to PT Vargovich her neck pain had increased since its onset, and that prior to experiencing her neck pain, Plaintiff practiced martial arts four to five times a week. Id. Upon examination by PT Vargovich, Plaintiff's cervical active ROM showed flexion was mildly limited producing central posterior pain and pulling, extension was within normal limits producing pain at end range, and sidebending and rotation both showed mild limitation to the right producing right cervical pain, and mild limitation to the left with no change in pain. Id. Bilateral shoulder ROM was within normal limits throughout all planes, with pain reported in the right neck and scapular region with end range right shoulder flexion and abduction. Id. Manual muscle testing could not be assessed due to the severity of Plaintiff's symptoms. Id. PT Vargovich assessed Plaintiff's signs and symptoms were consistent with right cervical pain, diagnosed cervicalgia (neck pain), with good rehabilitation potential and physical therapy twice a week was scheduled with Plaintiff to be re-assessed after two weeks. Id. Plaintiff, however, did not return for any future physical therapy sessions, but was a "no-show" on September 10, 2012, and canceled for September 13, 2012, resulting in Plaintiff being discharged from physical therapy on October 31, 2012, for non-compliance. Id.

Plaintiff did not seek further treatment for her cervicalgia until after the May 7, 2013 collision. In particular, following the collision, Plaintiff drove herself to Buffalo General where Plaintiff complained of minimal diffuse neck pain and right sciatic pain radiating into her right thigh. Defendant's Exh. K (Dkt. 43-7 at 6-12). An X-ray of Plaintiff's cervical spine showed normal alignment, normal disc spaces, and no fractures, but slight loss of lordosis which may be positional or spasm, and minor spondylosis. Id.

On Thursday, May 9, 2013, Plaintiff was examined by Dr. Liu-Chen for complaints of low back and neck pain and left wrist swelling immediately after the collision, followed by tingling and pain in her right thigh with...