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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