17-1353-cv
Wirt, et al. v. United States, et. al.

                                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 TO 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
1st day of May, two thousand eighteen.

Present:
            AMALYA L. KEARSE,
            GUIDO CALABRESI,
            DEBRA ANN LIVINGSTON,
                  Circuit Judges,
_____________________________________

LAURA A. WIRT, LAURA K. RODRIGUEZ,

                              Plaintiffs-Appellants,

                    v.                                                       17-1353-cv

UNITED STATES OF AMERICA, NEW YORK CITY
TRANSIT AUTHORITY, ANGEL LOPEZ,*

                  Defendants-Appellees,
_____________________________________

    For Plaintiffs-Appellants:                         LESTER B. HERZOG, Brooklyn, NY.

    For Defendant-Appellee United States               KATHLEEN A. MAHONEY, Assistant United
    of America:                                        States Attorney (Varuni Nelson, Assistant
                                                       United States Attorney, on the brief), for
                                                       Bridget M. Rohde, Acting United States

*
    The Clerk is directed to conform the official caption to the caption on this order.


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                                              Attorney, Eastern District of New York,
                                              Brooklyn, NY.

 For Defendants-Appellees New York            TIMOTHY J. O’SHAUGHNESSY (Lawrence
 City Transit Authority and Angel             Heisler, on the brief), New York City Transit
 Lopez                                        Authority, Brooklyn, NY.

       Appeal from a May 1, 2017 judgment of the United States District Court for the Eastern

District of New York (Chen, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiffs-Appellants Laura Wirt and Laura Rodriguez appeal from a May 1, 2017

judgment of the United States District Court for the Eastern District of New York (Chen, J.). The

district court granted summary judgment to Defendants-Appellees United States of America, New

York City Transit Authority (“NYCTA”) in this tort litigation brought under New York law and

alleging serious injuries sustained in connection with an April 2008 collision between a United

States General Services Administration vehicle and an NYCTA bus. We review de novo a district

court’s grant of summary judgment, resolving all ambiguities and inferences in favor of the

nonmoving party. See, e.g., Jackson v. Fed. Exp., 766 F.3d 189, 192 (2d Cir. 2014). We assume

the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues

on appeal.

       1. Background

       On April 23, 2008, Angel Lopez was driving an NYCTA bus in Brooklyn, New York,

when he abruptly braked. A sedan owned by the GSA and driven by Horace Mancie crashed into

the back of the stopped bus. Two years later, Laura Wirt and Laura Rodriguez commenced this




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action, alleging that they were passengers in the bus at the time and seeking non-economic

damages for injuries purportedly caused by the crash.1

       The district court granted summary judgment to the defendants. It concluded first that Wirt

and Rodriguez could only recover if they could establish that they suffered “serious injuries” under

the Comprehensive Motor Vehicle Insurance Reparations Act, N.Y. Ins. L. § 5101 et seq.,

commonly known as the “No-Fault Law.” Neither could meet this burden, the court held, because

neither came forward with sufficient evidence to raise a material question of fact as to whether the

April 2008 accident was the cause of their injuries. The court entered judgment for the defendants

in May 2017, and Wirt and Rodriguez filed a timely notice of appeal.

       2. Analysis

       The Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., waives the United States’

sovereign immunity for tort claims alleging personal injury, death, or injury to or loss of property

caused by a federal employee’s negligent conduct “under circumstances where the United States,

if a private person, would be liable to the claimant in accordance with the law of the place where

the [negligent] act or omission occurred.” 28 U.S.C. § 2672. New York’s No-Fault Law dictates

that “in any action by or on behalf of a covered person against another covered person . . . there

shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for

basic economic loss.” N.Y. Ins. L. § 5104(a). The term “covered persons” includes anyone

“entitled to first party benefits,” § 5102(j), which are defined as “payments to reimburse a person

for basic economic loss on account of personal injury arising out of the use or operation of a motor

vehicle,” § 5102(b).


1
 The complaint explicitly disclaims any claims for “hospital, medical, pharmaceutical or any other
monetary or pecuniary damages.” Appellant App’x at 68, 77–78.


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         “[A] personal injury which results in . . . significant disfigurement . . . 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” counts as a “serious injury.” § 5102(d). New York law requires that plaintiffs

provide “objective proof of . . . [serious] injury,” Toure v. Avis Rent A Car Systems, Inc., 98 N.Y.2d

345, 350 (2002), and demonstrate that the accident at issue was the cause of the injury. See

Pommells v. Perez, 4 N.Y.3d 566, 572 (2005). If a defendant moves for summary judgment on the

grounds that an accident did not cause the serious injuries in question, that defendant must supply

“persuasive evidence” that the injuries were caused by something else. Id. at 580; Cross v.

Labombard, 127 A.D.3d 1355, 1356 (3d Dep’t 2015) (requiring “adequate medical evidence”). If

the defendant can do so, the burden shifts to the plaintiff, who must “come forward with evidence

addressing defendant’s claimed lack of causation.” Pommells, 4 N.Y.3d at 580.

         On appeal, Wirt and Rodriguez first contend that the United States is not a “covered

person” under the No-Fault Law, so that they can recover as against the United States even if they

cannot establish “serious injuries.”2 Second, they argue, even if the United States constitutes a

“covered person,” there is a triable issue of fact as to whether they suffered “serious injuries.” We

disagree with Wirt and Rodriguez on both points.

         As the district court explained, we held in United States v. Government Employees

Insurance Company that the United States is entitled to “first party benefits,” which means that

the United States is a “covered person” for purposes of the statute. 605 F.2d 669, 671 (2d Cir.



2
    It is undisputed that the NYCTA is a “covered person” under the No-Fault Law.


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1979); see also Patrello v. United States, 757 F. Supp. 216, 220 (S.D.N.Y. 1991) (holding that

“the United States is a covered person under” the No-Fault Law); Canfield v. Beach, 305 A.D.2d

440, 441 (2d Dep’t 2003) (same). Wirt and Rodriguez, who are entitled to first party benefits, are

also “covered persons” under the No-Fault Law. Accordingly, Wirt and Rodriguez may not recover

from the United States or the other parties unless they can establish a triable issue of fact as to

whether they suffered “serious injuries,” and whether the accident at issue caused those injuries.

See N.Y. Ins. L. § 5104(a). Neither can do so.

       Wirt argues that she suffered two “serious injuries”:

           1. she could not “perform[] substantially all of the material acts which constitute[d]

               [her] usual and customary daily activities,” N.Y. Ins. L. § 5102(d), for more than

               ninety days while she was confined to a hospital or a rehabilitation facility

               following the accident, and

           2. she sustained “significant disfigurement,” id., because she had to undergo an

               operation following the accident, which left her with post-surgical scarring.

There is no question that, at some point after the crash, Wirt had serious injuries that necessitated

surgery and prolonged hospital attention. But the United States has argued that her preexisting

conditions, and not the crash, were the true cause of her “serious injuries.” See Kilmer v. Strek, 35

A.D.3d 1282, 1282–83 (4th Dep’t 2006) (holding that a defendant should have been granted

summary judgment after “presenting evidence establishing that plaintiff's alleged injury preexisted

the accident, the accident did not aggravate that injury and surgery was necessitated by the

preexisting condition”). It presented evidence that between 2004 and the crash, Wirt had been

hospitalized several times for afflictions affecting her back, neck, shoulders, and extremities, and

she had been referred for neurosurgery consultations to remedy her severe back and neck pain,


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which resulted from deterioration in her spinal cord, on at least two occasions. The record also

contains a letter from Dr. Devon Klein, an expert radiologist who reviewed Wirt’s MRI images

from before and after the crash. Dr. Klein concluded that Wirt’s post–April 2008 medical problems

“are the result of chronic degenerative disc disease” that predated the accident “and not the result

of a traumatic injury.” Appellant App’x 127. The United States thus met its burden of production

because it produced “persuasive evidence” that the accident did not cause Wirt’s injuries.

       Wirt, by contrast, failed to come forward with sufficient evidence to raise a material issue

of fact as to this “claimed lack of causation.” Pommells, 4 N.Y.3d at 580. She first attacks the

credibility and admissibility of Dr. Klein’s letter, but she failed to raise these arguments below and

has therefore forfeited them. See Lugo v. Hudson, 785 F.3d 852, 855 (2d Cir. 2015) (“Because this

issue is raised for the first time on appeal, we need not consider it.”). Wirt then argues in her reply

brief that Dr. Irving Friedman concluded after examining her several times that the accident caused

her injuries. But she did not make this argument in her opening brief, so she has forfeited this

argument as well. McCarthy v. SEC, 406 F.3d 179, 186 (2d Cir. 2005) (holding that “arguments

not raised in an appellant’s opening brief, but only in [her] reply brief, are not properly before an

appellate court even when the same arguments were raised in the trial court”). Wirt has thus failed

to rebut the United States’ “persuasive evidence” and summary judgment was thus properly

granted as to her claims.

       We also agree with the district court that Rodriguez failed to establish a triable issue of fact

as to her claims. To start, it is not entirely clear what “serious injuries” she incurred after the

accident. She claims to have suffered pain in her neck, back, and extremities, but “transitory pain

does not fall within the objective verbal definition of serious injury as contemplated by the No-

Fault Insurance Law,” Scheer v. Koubek, 70 N.Y.2d 678, 679 (1987), and it is undisputed that


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Rodriguez went without medical treatment or physical therapy for neck or back pain for five years

in the post-accident period.

        Rodriguez was also examined by Dr. Friedman, who concluded in 2015 that she had a 33%

range of motion deficit at the cervical spine and suffered from daily cervical and lumbar spasms.

Assuming arguendo that these symptoms meet the “serious injuries” standard, however, we

conclude that she still failed to establish a triable question of fact as to cause. Although Rodriguez

went to the hospital immediately after the crash, she was discharged only one hour after arriving;

the doctors found that she enjoyed full range of motion and neurological function. Two months

later, she denied having any radiating pain, and a medical report noted that she was not suffering

from spasms, restrictions of spinal motion, or any objective neurologic deficits. Rodriguez

underwent a few months of physical therapy in 2008, but as already noted, she did not seek any

medical treatment for neck or back pain for five years after the physical therapy ended. When she

sought medical care in 2009 for pregnancy, she did not report any medical problems, and a 2012

doctor’s report said she had no impairments stemming from the April 2008 accident. Thus,

Rodriguez also failed to raise a material issue of fact as to cause.

                                          *       *       *

        We have considered Wirt and Rodriguez’s remaining arguments, including their contention

that partial summary judgment should have been granted in their favor, and find them to be without

merit, and we therefore conclude that the Defendants-Appellees were properly granted summary

judgment as to Plaintiffs-Appellants’ claims. Accordingly, we AFFIRM the judgment of the

district court.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk



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