14-611-cv
Williams v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
13th day of January, two thousand fifteen.
Present: Peter W. Hall,
Gerard E. Lynch,
Susan L. Carney,
Circuit Judges.
____________________________________________________
Leslie Williams,
Plaintiff-Appellant,
v. No. 14-611-cv
United States of America,
Defendant-Appellee.
____________________________________________________
FOR APPELLANT: Brian W. Matula, Cooper Erving & Savage LLP, Albany,
NY.
FOR APPELLEE: Karen Folster Lesperance, Assistant United States
Attorney, for Richard S. Hartunian, United States Attorney
for the Northern District of New York, Albany, NY.
_____________________________________________________
Appeal from the United States District Court for the Northern District of New York
(Sharpe, C.J.).
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UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court is AFFIRMED.
Plaintiff-Appellant Leslie Williams (“Williams”) appeals from a final judgment of the
United States District Court for the Northern District of New York (Sharpe, C.J.) dismissing her
Federal Tort Claims Act case after a three-day bench trial. We assume the parties’ familiarity
with the underlying facts, the procedural history, and the issues presented for review.
“After a bench trial, the court’s ‘[f]indings of fact, whether based on oral or other
evidence, must not be set aside unless [they are] clearly erroneous.’” Diesel Props S.R.L. v.
Greystone Bus. Credit II LLC, 631 F.3d 42, 52 (2d Cir. 2011) (alterations in original) (quoting
Fed. R. Civ. P. 52(a)(6)); see also Anderson v. Bessemer City, 470 U.S. 564, 573–74 (1985);
Banker v. Nighswander, Martin & Mitchell, 37 F.3d 866, 870 (2d Cir. 1994). “The ‘clearly
erroneous’ standard applies whether the findings are based on witness testimony, or on
documentary evidence, or on inferences from other facts.” Diesel Props S.R.L., 631 F.3d at 52.
The District Court’s conclusions of law are reviewed de novo. See id. at 51.
To recover for non-economic losses resulting from a vehicle accident in New York, a
plaintiff must demonstrate that she suffered a “serious injury” under New York’s No-Fault
Insurance Law. N.Y. Ins. Law § 5104(a).
“Serious injury” means a personal injury which results in death; dismemberment;
significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body
organ, member, function or system; permanent consequential limitation of use of a body
organ or member; significant limitation of use of a body function or system; or a
medically determined injury or impairment of a non-permanent nature which prevents the
injured person from performing substantially all of the material acts which constitute
such person’s usual and customary daily activities for not less than ninety days during the
one hundred eighty days immediately following the occurrence of the injury or
impairment.
N.Y. Ins. Law § 5102(d). The District Court determined that Williams failed to provide
sufficient evidence of “serious injury” at trial to merit an award for non-economic injury. Our
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review of the District Court’s findings confirms that they were based on the evidence presented
at trial. Its decision was not clearly erroneous.
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, plaintiff’s inconsistent testimony as to the events of the accident,
testimony that plaintiff was able to perform tasks that exceeded her claimed limitations, evidence
that plaintiff shopped for a doctor who would provide her with particular medical treatment, and
plaintiff’s misrepresentations as to potential employment she claimed she was forced to forgo
due to the accident. Supported as it was by the evidence, the District Court’s decision to
disregard Williams’ testimony was not clear error. See Anderson, 470 U.S. at 573–75 (“If the
district court’s account of the evidence is plausible in light of the record viewed in its entirety,
the court of appeals may not reverse it even though convinced that had it been sitting as the trier
of fact, it would have weighed the evidence differently. . . . When findings are based on
determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference
to the trial court’s findings. . . .”).
The District Court’s decision, based on Williams’ lack of credibility, not to credit the
testimony of the doctors who examined her was also not clear error. Having found that the
plaintiff lacked credibility, the District Court chose to disregard testimony of medical experts
who relied for their ultimate diagnostic conclusions, directly or indirectly, on plaintiff’s
subjective reports of pain, tingling, numbness, or ability to work. Standing alone, subjective
reports of pain, tingling, or numbness are insufficient to demonstrate “serious injury,” see Toure
v. Avis Rent A Car Systems, Inc., 98 N.Y.2d 345, 350 (2002) (“[W]e have required objective
proof of a plaintiff’s injury in order to satisfy the statutory serious injury threshold; subjective
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complaints alone are not sufficient.” (citations omitted)), and medical diagnoses hinging upon
such reports may fall short of the kind of objective medical evidence necessary to establish
serious injury under New York law, id. at 351 (“[A]n expert’s opinion unsupported by an
objective basis may be wholly speculative, thereby frustrating the legislative intent of the No-
Fault Law to eliminate statutorily-insignificant injuries or frivolous claims.”). The only evidence
of injury that does not rely upon plaintiff’s reports of pain, tingling, or numbness were MRIs
taken after the accident that show synovial fluid, resulting in a diagnosis of bursitis, minimal
tendonitis, and an EMG nerve conduction study that showed abnormalities that are essentially
meaningless outside of the context of a prior diagnosis based on Williams’ subjective reports.
The District Court did not clearly err in concluding that this evidence failed to demonstrate a
serious injury that was sufficient to permit compensation for non-economic losses under New
York law. See Paulino v. Rodriguez, 937 N.Y.S.2d 198, 199 (1st Dep’t 2012) (holding that
determination on whether bursitis rose to the level of serious injury was issue for the trier of
fact); Gilroy v. Duncombe, 712 N.Y.S.2d 142, 143 (2d Dep’t 2000) (“The plaintiff also
submitted evidence that she had bursitis in her left hip. That evidence, however, was
insufficient, in and of itself, to establish the existence of a serious injury in the absence of any
objective medical evidence connecting the bursitis to the accident.”).
We have considered all of Williams’ remaining arguments and find them to be without
merit. Accordingly, the judgment of the District Court is hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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