Mora v. United States

643 F.Supp.3d 314

Brandon MORA, Karen M. Mora, Aynne Ramirez-Polanco, Plaintiffs, v. The UNITED STATES of America, Defendant.

Paola Mora, Plaintiff, v. The United States of America, Defendant.

19-CV-05085-SJB

20-CV-03600-SJB

United States District Court, E.D. New York

Signed November 28, 2022

E. David Woycik, Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, NY, Barbara Ellen Manes, Sanders, Sanders, Block, Woycik, Viener and Grossman, PC, Garden City, NY, for Plaintiff Aynne Ramirez-Polanco.

David Matthew Kittrell, Sanders Law Firm, Garden City, NY, Barbara Ellen Manes, Sanders, Sanders, Block, Woycik, Viener and Grossman, PC, Garden City, NY, E. David Woycik, Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, NY, for Plaintiff Karen M. Mora.

Ekta R. Dharia, Michael Joseph Castiglione, United States Attorney's Office, Brooklyn, NY, Kevin Yim, DOJ-USAO, Brooklyn, NY, Diane C. Leonardo, United States Attorneys Office, Central Islip, NY, for Defendant.

Patrick James Garvey, Gabrielle Law Firm, Rockville Center, NY, Sandra L. Bonder, Sandra L. Bonder, Attorney at Law, Bayside, NY, for Plaintiff Paola Mora.

Kevin Yim, DOJ-USAO, Brooklyn, NY, Michael Joseph Castiglione, United States Attorney's Office, Brooklyn, NY, Diane C. Leonardo, United States Attorneys Office, Central Islip, NY, for Defendant United States of America.

Findings of Fact and Conclusions of Law

BULSARA, United States Magistrate Judge:

These cases arise out of an automobile accident between Plaintiffs' vehicle—a Toyota RAV4—and a postal truck driven by an employee of the United States Postal Service ("USPS" or "Postal Service"). Plaintiffs—Aynne Ramirez-Polanco, Brandon Mora, Karen Mora, and Paola Mora—were seated in the vehicle when it was hit by the postal truck in Forest Hills, New York. According to Plaintiffs, their back, neck, and knee injuries were caused by the collision between the postal truck and their vehicle. They have sued the United States of America ("United States" or "Defendant") pursuant to the Federal Torts Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, seeking damages for their personal injuries.

The Court held a bench trial from October 17, 2022 through October 20, 2022. For the reasons set forth below, the Court enters judgment in favor of the United States.

The following constitutes the Court's Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a). To the extent that any factual finding constitutes a legal conclusion, it is deemed a legal conclusion, and vice versa.

FINDINGS OF FACT

Having heard testimony from each of the four Plaintiffs, their respective experts, the USPS driver, and the Defendant's experts, the Court makes the following credibility and factual determinations.

Each of the four Plaintiffs credibly testified that while seated in their Toyota on November 20, 2017, the vehicle shook—whether back and forth or from side to side—in a manner consistent with an accident. And they testified credibly that prior to November 20, 2017 there was no damage to their vehicle. (E.g., Tr. at 62:23-63:3 (Ramirez-Polanco)). But their credibility begins and ends there. There is no doubt that the postal truck collided with Plaintiffs' vehicle. The driver of the truck conceded as much during his testimony. (Tr. at 490:20-22 (Cruz)). Yet, Plaintiffs exaggerated the extent of the damage, going so far as to claim that damage not present on the day of the accident was caused by the postal truck. All four Plaintiffs claimed that Exhibit VV, which consisted of photographs taken nine days later, showed damaged to the Toyota from being hit by the postal truck.¹ The cause of the damage reflected in Exhibit VV is the critical factual question in the case, because each Plaintiff contended that the postal truck caused all the damage to their vehicle and the postal truck accident was the sole cause of their injuries. (Tr. at 65:1-10 (Ramirez-Polanco); Tr. at 66:8-18 (Ramirez-Polanco); Tr. at 119:18-120:5 (Mora, B.); Tr. at 154:18-20 (Mora, B.); Tr. at 122:3-20 (Mora, B.); Tr. at 172:16-19 (Mora, K.); Tr. at 191:21-23 (Mora, K.); Tr. at 191:24-192:8 (Mora, K.); Tr. at 259:21-262:19 (Mora, P.); Tr. at 268:10-12. (Mora, P.); Tr. at 209:9-20 (Mora, P.)). Plaintiffs' claims are simply not credible. The damage reflected in Exhibit VV stands in contrast to the damage in photographs taken by the postal truck driver, Exhibit G, on the day of the accident on November 20, 2017. (Tr. at 480:7-22 (Cruz)).

Side-by-side comparisons of the photographs, reproduced below, demonstrate Plaintiffs seek recovery for vehicle damage not present on the day of the accident. (The circles in Exhibit VV reflect damage not present in Exhibit G).

EXHIBIT G

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EXHIBIT VV

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EXHIBIT G

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EXHIBIT VV

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EXHIBIT G

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EXHIBIT VV

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Besides exaggerating damage to the vehicle and attributing damage plainly not present on the day of the accident to the postal truck, Plaintiffs' credibility was further undermined by their failure to explain why, despite having smartphones, none of them took photographs of the car at the accident scene. (Tr. at 141:14-17 (Mora, B.); Tr. at 145:11-19 (Mora, B.); Tr. at 267:1-268:1 (Mora, P.); Tr. at 187:9-12 (Mora, K.)). Further, some of the Plaintiffs' testimony at trial about the manner and extent of the accident stood in stark contrast with their deposition testimony, undermining their trial testimony even further. For example, they gave accounts at their depositions about what happened during the accident that were either implausible or were in contrast to what they claimed at trial—(e.g., Tr. at 146:11-17 (deposition testimony of Brandon Mora indicating that the car, after impact, was "mounted on the curb"))—or vice versa. Karen Mora, for instance, claimed at her deposition that the only damage to the car was to the mirror; but at trial she claimed the postal truck caused scratching and other damage. (Compare Deposition Testimony of Karen Mora, Gov't Ex. NNN at 80:25-81:3 (Q: "Besides the damage to the mirror, any other damage to the car that you saw?" A: "That I saw, no."), with Tr. 189:17-19 (Mora, K.) (Q: "Do you recall there being any damage besides the mirror to the car?" A: "Yes. The scratches to the car.")). Brandon Mora indicated during his deposition that there was no denting created by the postal truck. (Deposition Testimony of Brandon Mora, Gov't Ex. MMM at 80:3-6 (Q: "Besides the damage to the mirror and the scratches on the front left side, any other damage to the car?" A: "No.")). But at trial, he claimed the dents in Exhibit VV were caused by the truck. (Tr. at 143:16-18 (Mora, B.) (Q: "There were no dents to your Aunt Paola's vehicle from the accident; correct?" A: "There was.")).

The confluence of these factors and total absence of credibility to Plaintiffs' account deprives their testimony of any weight. Salahuddin v. United States, 564 F. Supp. 3d 75, 81 (E.D.N.Y. 2021) ("Since plaintiff's testimony about the crash is inconsistent, contradicts her deposition testimony, and is at odds with photographs taken of the scene, I do not credit it."); Williams v. United States, 597 F. App'x 647, 648 (2d Cir. 2015) ("The District Court concluded that Williams was not a credible witness both as to her trial testimony and as to her representations to the doctors who diagnosed her. This credibility determination was supported by photographic evidence that the underlying accident was not as severe as plaintiff testified[.]").²

In sum, Plaintiffs were not credible witnesses, in large part because they claimed damage to their vehicle that was not present on the day of the accident. The Court does not accept any of their testimony beyond their statements that the postal truck hit their vehicle. And because any and all claims of injury arising from the events underlying these cases depend entirely on Plaintiffs' testimony, which I reject in its entirety, Plaintiffs simply cannot meet their burden of proving causation.

In contrast, the Court found the testimony of Dr. Elaine Serina—an accident reconstruction and biomechanical expert—to be credible and persuasive on a number of points.³ Dr. Serina conducted a reconstruction analysis of the accident and concluded that the Toyota "experienced an extremely low-speed sideswipe contact." (Tr. at 536:1-2 (Serina)). Her analysis concluded that the damage to the Toyota RAV4 "primarily occurred to the left outside rearview mirror." (Tr. at 538:20-22 (Serina)). She noted that the photograph of the Toyota taken on the day of the accident—Exhibit G—showed no dents or scratches to the driver side panel. (Tr. at 540:19-22 (Serina)). Nor was there any damage to the "A Pillar"—the structure that frames the windshield. (Tr. at 539:13-15, 540:25-541:5, 542:20-25 (Serina) ("In particular if you look at the point where the A pillar and the fender come together, the gap there again is even throughout. There's no shifting or misalignment between the two parts as those two come together.")). She also noted the absence of denting or scratching was verifiable by the reflections seen in the photograph—they were continuous and unbroken. (Tr. at 540:25-541:5 (Serina)).

In contrast, the pictures taken several days later, in Exhibit VV, show damage not visible on the day of the accident. She explained: "[T]here is a clear noticeable dent with horizontal scratches running through the dent, a number of horizontal white scratches running through the dent. At the place where the A pillar and the fender come together, you can see there's a dent on the A pillar as well as the spacing between the A pillar and the fender." (Tr. at 544:24-545:7 (Serina)). In addition, "[t]here is also a scratch . . . that runs from the front...