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14-611-cv 

Williams v. United States

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 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 

13th day of January, two thousand fifteen. 

Present: Peter W. Hall, 

 Gerard E. Lynch, 

 Susan L. Carney, 

 Circuit Judges. 

____________________________________________________ 

Leslie Williams, 

 Plaintiff-Appellant, 

 v. No. 14-611-cv 

 

United States of America, 

Defendant-Appellee. 

____________________________________________________ 

FOR APPELLANT: Brian W. Matula, Cooper Erving & Savage LLP, Albany, 

NY. 

FOR APPELLEE: Karen Folster Lesperance, Assistant United States 

Attorney, for Richard S. Hartunian, United States Attorney 

for the Northern District of New York, Albany, NY. 

_____________________________________________________ 

Appeal from the United States District Court for the Northern District of New York 

(Sharpe, C.J.). 
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UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the District Court is AFFIRMED. 

Plaintiff-Appellant Leslie Williams (“Williams”) appeals from a final judgment of the 

United States District Court for the Northern District of New York (Sharpe, C.J.) dismissing her 

Federal Tort Claims Act case after a three-day bench trial. We assume the parties’ familiarity 

with the underlying facts, the procedural history, and the issues presented for review. 

“After a bench trial, the court’s ‘[f]indings of fact, whether based on oral or other 

evidence, must not be set aside unless [they are] clearly erroneous.’” Diesel Props S.R.L. v. 

Greystone Bus. Credit II LLC, 631 F.3d 42, 52 (2d Cir. 2011) (alterations in original) (quoting 

Fed. R. Civ. P. 52(a)(6)); see also Anderson v. Bessemer City, 470 U.S. 564, 573–74 (1985); 

Banker v. Nighswander, Martin & Mitchell, 37 F.3d 866, 870 (2d Cir. 1994). “The ‘clearly 

erroneous’ standard applies whether the findings are based on witness testimony, or on 

documentary evidence, or on inferences from other facts.” Diesel Props S.R.L., 631 F.3d at 52. 

The District Court’s conclusions of law are reviewed de novo. See id. at 51. 

To recover for non-economic losses resulting from a vehicle accident in New York, a 

plaintiff must demonstrate that she suffered a “serious injury” under New York’s No-Fault 

Insurance Law. N.Y. Ins. Law § 5104(a). 

“Serious injury” means a personal injury which results in death; dismemberment; 

significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body 

organ, member, function or system; permanent consequential limitation of use of a body 

organ or member; significant limitation of use of a body function or system; or a 

medically determined injury 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. 

N.Y. Ins. Law § 5102(d). The District Court determined that Williams failed to provide 

sufficient evidence of “serious injury” at trial to merit an award for non-economic injury. Our 
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review of the District Court’s findings confirms that they were based on the evidence presented 

at trial. Its decision was not clearly erroneous. 

The District Court concluded that Williams was not a credible witness both as to her trial 

testimony and as to her representations to the doctors who diagnosed her. This credibility 

determination was supported by photographic evidence that the underlying accident was not as 

severe as plaintiff testified, plaintiff’s inconsistent testimony as to the events of the accident, 

testimony that plaintiff was able to perform tasks that exceeded her claimed limitations, evidence 

that plaintiff shopped for a doctor who would provide her with particular medical treatment, and 

plaintiff’s misrepresentations as to potential employment she claimed she was forced to forgo 

due to the accident. Supported as it was by the evidence, the District Court’s decision to 

disregard Williams’ testimony was not clear error. See Anderson, 470 U.S. at 573–75 (“If the 

district court’s account of the evidence is plausible in light of the record viewed in its entirety, 

the court of appeals may not reverse it even though convinced that had it been sitting as the trier 

of fact, it would have weighed the evidence differently. . . . When findings are based on 

determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference 

to the trial court’s findings. . . .”). 

The District Court’s decision, based on Williams’ lack of credibility, not to credit the 

testimony of the doctors who examined her was also not clear error. Having found that the 

plaintiff lacked credibility, the District Court chose to disregard testimony of medical experts 

who relied for their ultimate diagnostic conclusions, directly or indirectly, on plaintiff’s 

subjective reports of pain, tingling, numbness, or ability to work. Standing alone, subjective 

reports of pain, tingling, or numbness are insufficient to demonstrate “serious injury,” see Toure 

v. Avis Rent A Car Systems, Inc., 98 N.Y.2d 345, 350 (2002) (“[W]e have required objective 

proof of a plaintiff’s injury in order to satisfy the statutory serious injury threshold; subjective 
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complaints alone are not sufficient.” (citations omitted)), and medical diagnoses hinging upon 

such reports may fall short of the kind of objective medical evidence necessary to establish 

serious injury under New York law, id. at 351 (“[A]n expert’s opinion unsupported by an 

objective basis may be wholly speculative, thereby frustrating the legislative intent of the NoFault Law to eliminate statutorily-insignificant injuries or frivolous claims.”). The only evidence 

of injury that does not rely upon plaintiff’s reports of pain, tingling, or numbness were MRIs 

taken after the accident that show synovial fluid, resulting in a diagnosis of bursitis, minimal 

tendonitis, and an EMG nerve conduction study that showed abnormalities that are essentially 

meaningless outside of the context of a prior diagnosis based on Williams’ subjective reports. 

The District Court did not clearly err in concluding that this evidence failed to demonstrate a 

serious injury that was sufficient to permit compensation for non-economic losses under New 

York law. See Paulino v. Rodriguez, 937 N.Y.S.2d 198, 199 (1st Dep’t 2012) (holding that 

determination on whether bursitis rose to the level of serious injury was issue for the trier of 

fact); Gilroy v. Duncombe, 712 N.Y.S.2d 142, 143 (2d Dep’t 2000) (“The plaintiff also 

submitted evidence that she had bursitis in her left hip. That evidence, however, was 

insufficient, in and of itself, to establish the existence of a serious injury in the absence of any 

objective medical evidence connecting the bursitis to the accident.”). 

We have considered all of Williams’ remaining arguments and find them to be without 

merit. Accordingly, the judgment of the District Court is hereby AFFIRMED. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk