14-2408-cv
Biernacki v. United States of America

                                    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 22nd day of May, two thousand fifteen.

PRESENT:            JOSÉ A. CABRANES,
                    REENA RAGGI,
                    DENNY CHIN,
                                 Circuit Judges.


HALINA BIERNACKI, Individually and as Executrix
of the Estate of David Street,

                    Plaintiff-Appellant,                            No. 14-2408-cv

                               v.

UNITED STATES OF AMERICA,

                    Defendant-Appellee.


FOR PLAINTIFF-APPELLANT:                             Halina Biernacki, pro se, Depew, NY.

FOR DEFENDANT-APPELLEE:                              Michael S. Cerrone, Joseph J. Karaszewski,
                                                     Assistant United States Attorneys, for William
                                                     J. Hochul, Jr., United States Attorney,
                                                     Western District of New York, Buffalo, NY
       Appeal from a judgment of the United States District Court for the Western District of New
York (H. Kenneth Schroeder, Jr., Magistrate Judge).1

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.

         Plaintiff-appellant Halina Biernacki sued defendant-appellee, the United States of America,
for medical malpractice under the Federal Tort Claims Act. She alleged that her husband, David
Street, received inadequate medical treatment from the Buffalo, New York VA Medical Center
following his ingestion of fresh spinach purportedly contaminated with the O157:H7 strain of E.
coli. On March 6, 2014, the District Court granted summary judgment in favor of the United States,
on the grounds that laboratory tests and the testimony of the Government’s expert had established
that Street was not in fact infected with this strain of E coli. Accordingly, Biernacki could not
establish that the hospital’s alleged negligence proximately caused Street’s death. Biernacki,
proceeding pro se, now appeals the District Court’s judgment. We assume the parties’ familiarity with
the underlying facts, the procedural history of the case, and the issues on appeal.

        We review the District Court’s grant of summary judgment de novo, viewing the facts “in the
light most favorable to the non-moving party and draw[ing] all reasonable inferences in that party’s
favor.” Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 271 (2d Cir. 2011). Summary judgment
is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks
omitted).

        Upon our de novo review, we conclude that the District Court correctly granted summary
judgment to the United States. We therefore affirm substantially for the reasons stated by the
District Court in its March 6, 2014 decision and order.2




        1
         Pursuant to 28 U.S.C. § 636(c), the parties below consented to the assignment of this case
to Magistrate Judge Schroeder for all purposes, including the entry of final judgment.
        2
          Biernacki also asserts that the District Court—in its April 8, 2014 order denying Biernacki’s
motion to reconsider its grant of summary judgment—misstated the testimony of her expert, Dr.
Jerry Bush. It is clear from the context, however, that the District Court meant to attribute the
complained-of passage to the Government’s expert, Dr. John Sellick, not to Dr. Bush. This
typographical error—substituting Dr. Bush for Dr. Sellick—does not change our conclusion that the
District Court was correct in granting summary judgment to the United States.
                                                    2
                                        CONCLUSION

       We have considered all of the arguments raised by Biernacki on appeal and find them to be
without merit. For the reasons stated above, the March 7, 2014 judgment of the District Court is
AFFIRMED.


                                             FOR THE COURT,
                                             Catherine O’Hagan Wolfe, Clerk of Court




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