1 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 DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CI TING 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 13 th day of January, two thousand fifteen. Present: Peter W. Hall, Gerard E. Lynch, Susan L. Carney, Circuit Judges

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____________________________________________________ Leslie Williams, Plaintiff-Appellant , v. No. 14-611-cv United States of America, Defendant-Appellee

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____________________________________________________ FOR APPELLANT: Brian W. Matula , Cooper Erving & Savage LLP, Albany, NY. FOR APPELLEE: Karen Folster Lesp erance, 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 Cour t for the Northern Di strict of New York (Sharpe, C.J. ).2 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 Nort hern 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, th e 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 unles s [they are] clearly erroneous.’” Diesel Props S.R.L. v. Greystone Bus. Credit II LLC , 631 F.3d 42, 52 (2d Cir. 2011) (alter ations 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 findi ngs 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 conclu sions 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 th at 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 fr acture; loss of a fetus; pe rmanent loss of use of a body organ, member, function or system; permanen t 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 al l of the material acts which constitute such person’s usual and customary daily activit ies for not less than ninety days during the one hundred eighty days immediately follo wing 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 in jury” at trial to merit an aw ard for non-economic injury. Our3 review of the District Court’s fi ndings confirms that they were based on the evidence presented at trial. Its decision wa s not clearly erroneous. The District Court concluded that Williams was not a credible witness both as to her trial testimony and as to her represen tations to the doctors who diagnosed her. This credibility determination was supported by photographic evid ence that the underlying accident was not as severe as plaintiff testified, plai ntiff’s inconsistent testimony as to the events of the accident, testimony that plaintiff was able to perform task s 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 cl aimed she was forced to forgo due to the accident. Supporte d as it was by the evidence, the District Court’s decision to disregard Williams’ testim ony 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 reve rse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence di fferently. . . . When findings are based on determinations regarding the credibility of witnes ses, Rule 52(a) demands even greater deference to the trial court’s fi ndings. . . .”). The District Court’s decision, based on Williams’ lack of cr edibility, 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 disreg ard testimony of medical experts who relied for their ultimate diagnostic conclu sions, directly or indi rectly, on plaintiff’s subjective reports of pa in, tingling, numbness, or ability to work. Standing alone, subjective reports of pain, tingling, or numbness are insu fficient 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 inju ry threshold; subjective4 complaints alone are not sufficient.” (citati ons omitted)), and medical diagnoses hinging upon such reports may fall short of the kind of obj ective 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 spec ulative, thereby frustrating the legislative intent of the NoFault Law to eliminate statutorily-insignificant inju ries or frivolous claims.”). The only evidence of injury that does not rely upon plaintiff’s re ports 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 clearl y 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 leve l 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 he r left hip. That evidence, however, was insufficient, in and of itself, to establish the ex istence of a serious injury in the absence of any objective medical evidence connecting the bursitis to the accident.”). We have considered all of Williams’ remain ing arguments and find them to be without merit. Accordingly, the judgment of the District Court is hereby AFFIRMED

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FOR THE COURT: Catherine O’Hagan Wolfe, Clerk