     16-1090
     Krynski v. Chase


                                     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.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 17th day of February, two thousand seventeen.
 4
 5   PRESENT:
 6              PIERRE N. LEVAL,
 7              GUIDO CALABRESI,
 8              SUSAN L. CARNEY,
 9                          Circuit Judges.
10   _________________________________________
11
12   MICHAEL KRYNSKI,
13
14                      Plaintiff-Appellant,
15
16                              v.                                   No. 16-1090
17
18   THOMAS H. CHASE, JR., WESTERN EXPRESS, INC.,
19
20              Defendants-Appellees.
21   _________________________________________
22
23   FOR APPELLANT:                                    MICHAEL FLOMENHAFT (Stephen D.
24                                                     Chakwin, Jr., on the brief), The Flomenhaft
25                                                     Law Firm, PLLC, New York, NY.
26
27   FOR APPELLEES:                                    KEITH A. RAVEN, Raven & Kolbe, LLP
28                                                     (Brian J. Isaac, Michael H. Zhu, Pollack,
 1                                                              Pollack, Isaac, & De Cicco, LLP, on the
 2                                                              brief), New York, NY.
 3
 4           Appeal from a judgment of the United States District Court for the Eastern District
 5   of New York (Donnelly, J.).

 6           UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
 7   ADJUDGED, AND DECREED that the March 14, 2016 judgment entered by the
 8   District Court is AFFIRMED.

 9           Plaintiff-appellant Michael Krynski brought this personal injury action against
10   defendants-appellees Thomas H. Chase, Jr., and Western Express, Inc., after Krynski and
11   Chase were involved in an automobile accident on February 26, 2005. In 2009, the District
12   Court granted Krynski’s motion for partial summary judgment on the issue of liability.
13   Krynski v. Chase, 707 F. Supp. 2d 318, 329 (E.D.N.Y. 2009). The District Court held a bench
14   trial in January 2016 on the issue of damages. After three days of trial, defendants moved for
15   a “directed verdict,” which the District Court treated as a motion for judgment on partial
16   findings under Federal Rule of Civil Procedure 52(c). The District Court granted the motion
17   and later issued a memorandum decision and order explaining the basis for that decision.
18   Krynski appeals various pretrial and evidentiary rulings, the District Court’s decision to
19   construe defendants’ motion as a motion for judgment on partial findings under Rule 52(c),
20   and the District Court’s grant of defendants’ motion. We assume the parties’ familiarity with
21   the underlying facts and the procedural history of the case, to which we refer only as
22   necessary to explain our decision to affirm.

23           We review a district court’s evidentiary rulings for abuse of discretion. Keepers, Inc. v.
24   City of Milford, 807 F.3d 24, 34 (2d Cir 2015). Krynski argues that the District Court erred by
25   refusing to admit Dr. Ryder’s records and by denying his motion to exclude defendants’
26   experts, Mr. Scott and Dr. Thibault.1 We see no abuse of discretion in either ruling.

27           Krynski also argues that the District Court erred by refusing to admit testimony from
28   Dr. Wasserstein, a neuropsychologist, on the issue of causation. Although Krynski is correct
     1Krynski also argues that the District Court erred by refusing to admit Dr. Boppana’s records, but the
     District Court in fact admitted the records and considered them in her decision.
                                                           2
 1   that neuropsychologists may be qualified to testify as to the cause of head injuries, Dr.
 2   Wasserstein was not presented in the joint pre-trial order as a causation witness. The District
 3   Court therefore did not abuse its discretion in refusing to admit her testimony on the
 4   question of causation, while nonetheless allowing her to testify as to the seriousness of
 5   Krynski’s injuries.

 6           Krynski argues further that the District Court erred by converting defendants’
 7   motion for a directed verdict, which he construes as a motion under Rule 50, into a motion
 8   for judgment on partial findings under Rule 52(c). Generally, federal courts of appeal will not
 9   consider an issue not passed upon by the district court “[unless in] the discretion of the
10   courts of appeals . . . the proper resolution is beyond any doubt or . . . injustice might
11   otherwise result.” Gwozdzinsky ex rel. Revco D.S., Inc. v. Magten Asset Mgmt. Corp., 106 F.3d 469,
12   472 (2d Cir. 1997) (quoting Singleton v. Wulff, 428 U.S. 106, 120-21 (1976)) (alterations in
13   original). We can see substantial arguments that the District Court erred in treating the
14   defendant’s motion for a directed verdict (which questioned the legal sufficiency of
15   plaintiff’s evidence) as a motion under Rule 52(c) (which asked whether the court believed
16   the plaintiff’s evidence vis-à-vis that of defendants), and in construing plaintiff’s statement
17   that he had no further witnesses, made in the context of the directed verdict motion
18   addressed to legal sufficiency, as meaning that the plaintiff had no further witnesses relating
19   to the credibility of the evidence put forth by both parties. However, no such argument was
20   advanced to the District Court, which could have eliminated the problem by allowing the
21   plaintiff to submit additional evidence. We conclude that, because this issue was not raised in
22   the District Court and because Krynski has not made a showing of manifest injustice or an
23   extraordinary need for us to consider the matter on appeal, we will not consider this issue.

24          Following a bench trial, we review a district court’s findings of fact for clear error and
25   its conclusions of law de novo. Diesel Props S.R.L. v. Greystone Bus. Credit II LLC, 631 F.3d 42,
26   51-52 (2d Cir. 2011). “Findings of fact, whether based on oral or other evidence, must not
27   be set aside unless clearly erroneous, and the reviewing court must give due regard to the
28   trial court’s opportunity to judge the witnesses’ credibility.” Fed. R. Civ. P. 52(a)(6). With
29   these principles in mind, we have considered plaintiff’s remaining arguments. While some of
                                                      3
1   the District Court’s rulings were questionable, the asserted errors are not of sufficient
2   importance to justify overturning the judgment.

3                                                * * *

4          We have considered plaintiff’s remaining arguments on appeal and find them to be
5   without merit. The judgment of the District Court is AFFIRMED.

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




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