Ferguson v. DeSouza

Background

Anthony Ferguson brought a negligence action against Christian DeSouza and Wild Eagle Trans LLC after a motor-vehicle collision on April 25, 2018, on the southbound Cross Bronx Expressway in the Bronx. Ferguson alleged that the defendants’ negligence caused the collision and serious physical injuries. The parties disputed both how the collision occurred and the extent of Ferguson’s injuries.

Defendants moved for summary judgment under Federal Rule of Civil Procedure 56. They argued that Ferguson was solely negligent because he changed lanes when it was unsafe, in violation of New York Vehicle and Traffic Law § 1128. Alternatively, they argued that Ferguson had not suffered a “serious injury” as required by New York Insurance Law § 5102(d).

Late-Disclosed Expert

Defendants also asked the court to exclude testimony from Ferguson’s expert, Dr. Ali Sadegh, because Ferguson had not disclosed the expert during discovery. The court ruled that Ferguson had not justified the late disclosure and that it was not harmless because defendants had no opportunity to depose Dr. Sadegh or evaluate his qualifications before filing the summary-judgment motion. The court therefore precluded Dr. Sadegh from testifying and did not consider his affidavit in deciding the motion.

Negligence and Responsibility for the Collision

The court denied summary judgment on the argument that Ferguson was solely responsible for the crash. Defendants relied on Ferguson’s accident report, a photograph of the vehicles after the collision, and their interpretation of Ferguson’s testimony. The court concluded that this evidence did not establish, without a factual dispute, that Ferguson changed lanes before determining that it was safe.

Ferguson testified that he checked his blind spot and side-view mirrors, saw that defendants’ tractor-trailer was stopped or nearly stopped, and began changing lanes because he believed it was safe. He further testified that the trailer began moving and accelerated only after he had substantially entered defendants’ lane. The court also noted that the evidence did not resolve what DeSouza did immediately before the collision, including whether he was paying attention and whether he left enough space for merging traffic. Because these competing accounts created factual issues for a jury, defendants did not establish that Ferguson’s negligence was the sole proximate cause of the collision.

Serious-Injury Requirement

Under New York’s no-fault law, a person generally cannot recover damages for non-economic losses from a motor-vehicle accident unless the person suffered a “serious injury” as defined by New York Insurance Law § 5102(d). The categories relevant to Ferguson’s claims included a permanent consequential limitation of a body organ or member, a significant limitation of a body function or system, and a medically determined nonpermanent injury that prevented substantially all usual activities for at least 90 of the first 180 days after the injury.

Defendants submitted medical-expert reports stating that Ferguson’s post-accident magnetic-resonance imaging showed no traumatic abnormalities, that he had a full range of motion in the affected areas, and that his alleged injuries were not caused by the accident. The court held that this evidence shifted the burden to Ferguson to produce competent, objective medical evidence showing a serious injury.

The court ruled that Ferguson did not meet that burden. The diagnostic tests did not show a significant injury or abnormality, and Ferguson identified no evidence that his treating physicians found a permanent injury, a significant limitation, or restrictions on his daily activities. The court found that the treating physician’s range-of-motion findings were based on Ferguson’s subjective responses rather than objective criteria. It also found that the chiropractor’s unsworn records were inadmissible and did not identify objective testing.

The court further explained that evidence of muscle tears, disc bulges, herniated discs, or surgery, standing alone, did not establish the extent or degree of any resulting physical limitation. Ferguson did not identify objective medical evidence measuring such limitations.

Disposition

The court held that Ferguson failed to raise a genuine factual dispute about whether he suffered a serious injury under New York Insurance Law § 5102(d). Although the court found factual disputes about responsibility for the collision, it granted defendants’ motion for summary judgment dismissing Ferguson’s claim. The opinion does not state that the dismissal was with or without prejudice.