Conde v. United States of America

Background

Nouhou Conde sued the United States of America, the United States Postal Service, and Jamal M. Abdus-Sabur over personal injuries he said resulted from a November 10, 2018 accident involving a Postal Service truck. Conde also sought compensation for damage to his vehicle, but that property-damage claim was not resolved by these motions.

The parties agreed that the Postal Service truck was stopped when Conde approached it. Conde told emergency responders that he was moving through a tight space and that his van’s front passenger door caught on the truck’s bumper. He later received medical treatment and was diagnosed by various medical providers with conditions including limited spinal movement, disc bulges, disc herniations, and lumbar radiculopathy. The parties disputed both the seriousness of these conditions and whether the accident caused them.

The Government’s expert, Dr. Charla Fischer, concluded that the accident caused temporary neck and back muscle strains that should have resolved within three to six months with physical therapy. She attributed the more serious conditions shown in Conde’s imaging to age-related spinal degeneration rather than the accident. Conde’s expert, Dr. Mark McMahon, concluded that the conditions resulted from the accident and were permanent.

Claims and legal standards

Because the Federal Tort Claims Act applied, the United States was the proper defendant for the tort claim. The court therefore dismissed the Postal Service and Jamal M. Abdus-Sabur as defendants after Conde did not oppose that request.

New York’s No-Fault Insurance Law governed the personal-injury claim. To recover personal-injury damages exceeding the statutory threshold, Conde had to provide evidence that he suffered a legally defined “serious injury” and that the accident proximately caused that injury. Summary judgment is appropriate when no genuine dispute over an important fact exists and the moving party is entitled to judgment as a matter of law.

Serious injury

The court held that the Government made an initial showing that Conde’s injuries were not serious. Dr. Fischer’s opinion that the accident-related strains would resolve within three to six months, Conde’s continued ability to walk without a cane or walker, and his continued performance of some daily activities supported that showing.

The court rejected Conde’s evidence as insufficient to create a factual dispute under the theory that he suffered a permanent consequential limitation. Conde did not identify a treating physician’s report showing permanent injury, and Dr. McMahon’s statement that his condition was permanent lacked objective support.

The court nevertheless found factual disputes under two other serious-injury theories. Conde presented imaging and medical evidence showing disc bulges, herniations, and limited range of motion, which could support a significant limitation. He also testified that he did not work for three months, experienced pain and difficulty with walking and lifting, could only sometimes shop for groceries, and could not play sports or play with his children. Medical evidence stated that he remained unable to work as a driver more than 90 days after the accident. The court therefore denied summary judgment on whether Conde suffered a serious injury.

Causation

The court granted the Government’s motion for summary judgment on causation. Dr. Fischer’s report, based on medical records, imaging, a physical examination, and her spinal expertise, was sufficient to establish that the potentially serious conditions were degenerative rather than caused by the accident.

The court found Conde’s contrary evidence conclusory. Dr. McMahon did not meaningfully analyze causation, did not review the underlying imaging, did not account for Conde’s reported ten-year history of back pain or 2012 motor-vehicle accident, and did not adequately respond to the degeneration theory. Dr. Macagno’s report likewise relied on an incomplete and inaccurate account of the accident and medical history. The court concluded that Conde failed to raise a genuine factual dispute about whether the accident caused the potentially serious injuries.

Expert testimony

The court granted the Government’s motion to exclude Dr. McMahon’s testimony under Federal Rule of Evidence 702. The court found that McMahon copied diagnoses from radiology reports without personally reviewing the imaging, relied mainly on subjective testing, failed to use or consider available objective tests and information, and offered only a one-sentence causation opinion.

The court also found that McMahon did not conduct a reliable analysis addressing alternative causes, including chronic degeneration, prior back pain, and the 2012 accident. Because his opinion lacked a reliable foundation and methodology, the court excluded his testimony. The court stated that this exclusion provided an independent basis for summary judgment.

Disposition

The opinion’s discussion states that summary judgment was granted on causation and denied on the serious-injury question. The Government’s motion to exclude Dr. McMahon’s testimony was granted. The Postal Service and Jamal M. Abdus-Sabur were dismissed as defendants. The court did not decide Conde’s vehicle-damage claim and directed him to notify the court whether he would pursue it.