Diassinos v. Oliveira Contracting, Inc.

Background

Stacey Diassinos alleged that Thomas Martins negligently operated a van pulling a compressor on East 70th Street in New York City on July 2, 2019. Diassinos was standing between a double-parked rental car and its partly open rear driver’s-side door when the van and compressor passed. Her lower left leg was struck, and she underwent emergency surgery.

Diassinos sought $15 million for physical pain, mental anguish, and economic loss. She argued that Martins failed to use reasonable care, including by traveling too fast, failing to maintain a safe distance, failing to stop, and violating New York Vehicle and Traffic Law § 1146(a). The defendants argued that Diassinos violated Vehicle and Traffic Law § 1214 by opening or leaving open the car door when it was not reasonably safe to do so, that this was negligence as a matter of law, and that her conduct was the sole cause of the accident.

Motion to Strike Expert Testimony

Diassinos moved under Federal Rules of Evidence 702 and 403 and the standards governing expert evidence to exclude the report and testimony of Ali M. Sadegh, whom the defendants offered as an expert in accident reconstruction and biomechanical analysis. Sadegh concluded that the accident resulted from Diassinos opening the rental-car door rather than from Martins’s operation of the van.

The court treated Michael O’Connor’s declaration differently. O’Connor had been retained to examine Sadegh’s methods and identify issues for cross-examination, but he was not a testifying expert. The court therefore found his declaration inadmissible for purposes of deciding the motion. The court stated that it would reach the same result regarding Sadegh’s testimony even if it considered O’Connor’s declaration.

The court found that most of Diassinos’s objections went to the weight of Sadegh’s opinions rather than their admissibility. Those issues could be tested through cross-examination and competing evidence. The court excluded Sadegh’s opinion that the rental car lacked emergency lights because that conclusion was speculative and did not assist the jury. It also excluded portions of his opinions asserting that Diassinos was thinking she had enough room, was not attentive or inattentive, or would have avoided the accident had she been attentive. The court allowed Sadegh to testify about how he believed the accident occurred based on his engineering experience, including how the car door was struck and how Diassinos’s body may have reacted. The court held that the remaining testimony was relevant and admissible, subject to cross-examination.

Accordingly, the court granted in part and denied in part Diassinos’s motion to strike. It did not exclude Sadegh’s testimony in full.

Summary Judgment

Summary judgment is a decision without a trial that is proper only when there is no genuine dispute about a fact important to the outcome and the moving party is entitled to judgment under the law. Because negligence cases generally depend on disputed facts, the court explained that they ordinarily must be decided by a fact-finder.

The court held that a reasonable jury could find that Diassinos did not violate Vehicle and Traffic Law § 1214. Diassinos testified that she checked traffic before and after placing a backpack in the rental car, saw multiple vehicles pass, and was waiting for traffic to pass when she was struck. This testimony provided a possible non-negligent explanation, and the court could not resolve witness credibility on summary judgment.

The court also identified at least three material factual disputes concerning Martins’s possible negligence:

The court concluded that a reasonable jury could find Martins negligent under New York law, including by finding that he failed to use due care to avoid colliding with a pedestrian. The defendants therefore had not shown that Diassinos’s conduct was the sole proximate cause of the accident or that there was no evidence of Martins’s negligence.

Disposition

Judge Sarah Netburn granted in part and denied in part Diassinos’s motion to strike. The court denied the defendants’ motion for summary judgment. The clerk was directed to terminate the motions at ECF Nos. 40 and 43.