Koch v. Bobcat of New York, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

WILLIAM KOCH and DEBORAH KOCH,

Plaintiffs, MEMORANDUM & ORDER

19-CV-07081 (HG) (TAM)

v.

BOBCAT OF NEW YORK, INC. and CLARK

EQUIPMENT COMPANY d/b/a BOBCAT

COMPANY,

Defendants.

HECTOR GONZALEZ, United States District Judge:

Plaintiff William Koch brings this action against Defendants Bobcat of New York, Inc.

(“Bobcat”) and Clark Equipment Company (“Clark”), asserting claims of negligence, breach of

warranty, and strict tort liability under New York law. See ECF No. 13 (Amended Complaint).

Mr. Koch alleges that he was severely injured while operating a Bobcat T300 Skid Steer Loader

(the “Loader”). See ECF No. 13 ¶ 8. Plaintiff Deborah Koch claims loss of consortium of her

husband due to the injuries he allegedly sustained. See ECF No. 13 ¶¶ 80–82. Presently before

the Court are Defendants’ motions to dismiss. See ECF No. 73 (Bobcat’s Motion to Dismiss);

ECF No. 74 (Clark’s Motion to Dismiss). Plaintiffs have opposed the motions. See ECF No. 76

(Plaintiffs’ Opposition).1 For the reasons set forth below, both motions are granted, and the

Amended Complaint is dismissed.

1 Plaintiffs filed separate oppositions to Defendants’ motions to dismiss. See ECF No. 76;

ECF No. 77. Because the arguments in Plaintiffs’ oppositions are identical, the Court cites to the

earlier-filed memorandum of law at ECF No. 76 throughout this decision. Both Defendants have

also filed replies in support of their motions. ECF No. 78 (Clark’s Reply); ECF No. 79

(Bobcat’s Reply).

BACKGROUND

The Court draws the following facts from the Amended Complaint.2 On March 20, 2017,

Mr. Koch was operating the Loader in the course of his employment with the United States Fish

and Wildlife Service. See ECF No. 13 ¶¶ 7–8. Mr. Koch alleges that, at that time, both

Defendants were responsible for, inter alia, “designing, manufacturing, assembling, inspecting,

testing, modifying, marketing, selling and/or distributing” the Loader. Id. ¶ 45; see also id. ¶ 20.

While Mr. Koch was operating the Loader, the front bucket descended onto the front cabin door,

causing the door to snap backward and strike Mr. Koch’s “left upper extremity” (the “Incident”).

Id. ¶ 8. Plaintiff alleges that he suffered multiple “severe” and “permanent” injuries as a result of

the Incident. Id.

PROCEDURAL HISTORY

I. The OWCP and ECAB Decisions

Two days after the Incident, on March 22, 2017, Mr. Koch filed his first claim with the

Office of Workers’ Compensation Programs (“OWCP”). See ECF No. 72-3 at 2 (October 11,

2017, OWCP Decision).3 The claim was for “traumatic injury,” as defined by the OWCP. See

2 The Court is “required to treat [Plaintiffs’] factual allegations as true, drawing all

reasonable inferences in favor of Plaintiffs to the extent that the inferences are plausibly

supported by allegations of fact.” In re Hain Celestial Grp., Inc. Sec. Litig., 20 F.4th 131, 133

(2d Cir. 2021). The Court therefore “recite[s] the substance of the allegations as if they

represented true facts, with the understanding that these are not findings of the [C]ourt, as [I]

have no way of knowing at this stage what are the true facts.” Id.

3 The Court takes judicial notice of the administrative decisions of the OWCP as well as

the Employees’ Compensation Appeals Board (“ECAB”) cited herein, which were attached to

Defendants’ motions. See Golden Hill Paugussett Tribe of Indians v. Rell, 463 F. Supp. 2d 192,

197 (D. Conn. 2006) (“Among the matters of which courts may take judicial notice are decisions

of an administrative agency.”). The Court uses the pages assigned by the Electronic Case Files

System (“ECF”).

id. Mr. Koch alleged that he had sustained several injuries to his left hand and wrist. See id. On

September 6, 2017, the OWCP advised Mr. Koch that his claim was deficient, but provided him

with an opportunity to submit additional evidence. See id. After he submitted additional

documents, the OWCP, on October 11, 2017, denied Mr. Koch’s claim for all injuries—with the

exception of a left hand contusion, or bruise—because the evidence was “not sufficient to

establish” that the alleged traumatic injuries were “causally related” to the Incident (the “Injury

Decision”). See id. at 3; see also ECF No. 72-2 at 4 (September 10, 2019, ECAB Decision). In

other words, while the OWCP found that the left hand contusion was an “accepted” injury, or

otherwise caused by the Incident, see ECF No. 72-2 at 4, it nevertheless denied Mr. Koch’s

“traumatic injury” claim as to the remainder of his alleged injuries on the basis that insufficient

evidence was presented to show that the alleged injuries were causally related to the Incident.

See ECF No. 72-3 at 2–4. Accordingly, and as relevant to the analysis here, the remainder of

Plaintiff’s alleged injuries were not “accepted” by the OWCP.4 See id.

On September 7, 2017, Mr. Koch filed a second claim with the OWCP related to the

Incident. See ECF No. 72-2 at 3–4. This time, he alleged a disability commencing on August

4 In order for a claim to be “accepted” under the Federal Employees’ Compensation Act

(“FECA”), 5 U.S.C. § 8101 et seq., the claim must meet five basic elements. ECF No. 72-3 at 3.

The claim must:

(1) Be Timely Filed.

(2) Be made by a Federal Civil Employee.

(3) Establish Fact of Injury, which has both a factual and medical component. Factually,

the injury, accident or employment factor alleged must have actually occurred.

Medically, a medical condition must be diagnosed in connection with the injury or event.

(4) Establish Performance of Duty. The injury and/or medical condition must have arisen

during the course of employment and within the scope of compensable work factors.

(5) Establish Causal Relationship, which means the medical evidence establishes that the

diagnosed condition is causally related to the injury or event.

Id. (underlined in original).

21, 2017, stemming from the Incident. See id. at 4. Mr. Koch alleged that his use of “lawn

mowers, chain saws, and hand tools in the performance of duty contributed to the development

of [his] claimed left wrist conditions.” Id. On October 6, 2017, the OWCP informed Mr. Koch

that the evidence submitted was insufficient to establish that he sustained a recurrence of

disability, based on his “accepted” left hand contusion, but permitted Mr. Koch to submit

additional documentation. See id. Thereafter, on November 21, 2017, the OWCP denied

Mr. Koch’s recurrence of disability claim, reasoning that there was insufficient evidence

showing how the alleged disability was caused by the Incident (the “Disability Decision”). See

id. at 5. On August 8 and 17, 2018, Mr. Koch requested reconsideration of the Disability

Decision and submitted additional evidence. Id. On November 6, 2018, the OWCP declined to

modify the Disability Decision, finding that the additional evidence submitted was insufficient to

establish a recurrence of disability. Id. at 6.

On January 16, 2019, Mr. Koch appealed the November 6, 2018, OWCP denial of

reconsideration to the ECAB. Id. at 2. The ECAB issued a decision on September 10, 2019,

finding that Mr. Koch had “not provided sufficient medical reasoning . . . [to] relate

[Mr. Koch’s] disability to the accepted March 20, 2017, left hand contusion.” Id. at 7. The

ECAB decision further noted that Mr. Koch had not “met his burden of proof to establish a

recurrence of total disability . . . causally related to his accepted March 20, 2017, employment

injury.” Id. at 8. Since then, Mr. Koch has requested reconsideration of the Disability Decision

and submitted additional medical evidence five times, but the OWCP has declined to modify its

prior orders every time. See ECF No. 72-4 at 4–6 (October 26, 2023, ECAB Decision).5 Most

5 The Court cites to the October 26, 2023, ECAB decision only to provide background as

the decision postdates Plaintiffs’ Amended Complaint. See Nelson v. Myrtle Beach Collegiate

Summer Baseball League, LLC, No. 12-cv-1655, 2013 WL 6273890, at *4 n.5 (D. Conn. Dec. 4,

recently, the ECAB found once again that Mr. Koch “ha[d] not met his burden of proof to

establish a recurrence of total disability” causally related to the Incident. Id. at 9.

II. The Federal Case

Plaintiffs filed the original complaint in this action on December 18, 2019, see ECF No. 1

(Complaint), and the Amended Complaint on February 14, 2020, see ECF No. 13. Bobcat

answered the Amended Complaint on February 28, 2020, see ECF No. 18 (Bobcat Answer), and

Clark answered the Amended Complaint on March 26, 2020, see ECF No. 22 (Clark Answer).

On May 20, and May 21, 2020, Bobcat and Clark, respectively, filed amended answers to assert

collateral estoppel as additional defenses. See ECF No. 31 (Bobcat Amended Answer); ECF

No. 32 (Clark Amended Answer). This action was then stayed multiple times, at the request of

all parties, due to Mr. Koch’s reconsideration motion pending in the underlying OWCP

proceeding. See, e.g., July 2, 2020, Text Order; May 6, 2021, Text Order; October 3, 2023, Text

Order. After the stay was lifted, the Court permitted Bobcat and Clark to file motions to dismiss

in light of the OWCP proceedings. See ECF No. 73; ECF No. 74. Those motions are now ripe

for the Court’s review.

LEGAL STANDARD

“[A] motion to dismiss for failure to state a claim . . . that is styled as arising under Rule

12(b) but is filed after the close of pleadings, should be construed by the district court as a

motion for judgment on the pleadings under Rule 12(c).” Patel v. Contemp. Classics of Beverly

Hills, 259 F.3d 123, 126 (2d Cir. 2001).6 “When—as here—a Rule 12(b)(6) motion is filed after

2013) (“[B]ecause these exhibits post-date the [c]omplaint, the [c]ourt will not consider them.”).

The Court does not rely on the October 26, 2023, ECAB decision in deciding these motions.

6 Unless otherwise indicated, when quoting cases, all internal quotation marks, alteration

marks, emphases, footnotes, and citations are omitted.

an answer to the complaint has already been filed, the appropriate response is to treat such an

untimely motion to dismiss as a motion for judgment on the pleadings under Rule 12(c).”

Bernato v. Arthur J. Gallagher & Co., No. 15-cv-1544, 2015 WL 4643165, at *3 (S.D.N.Y. Aug.

5, 2015). “[T]he standard for addressing a Rule 12(c) motion for judgment on the pleadings is

the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim.” Ezra v.

Bristol-Myers Squibb Co., 784 F. App’x 48, 49 (2d Cir. 2019). “To survive a motion to dismiss

under Rule 12(b)(6), the complaint must plead ‘enough facts to state a claim to relief that is

plausible on its face.’” Johnson v. Mount Sinai Hosp. Grp., No. 23-466, 2024 WL 3289475, at

*1 (2d Cir. July 3, 2024) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A

claim is plausible ‘when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.’” Matson v. Bd. of

Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

Although all allegations contained in the complaint are assumed to be true, this tenet is

“inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.

“Dismissal under Rule 12(b)(6) is appropriate when a defendant raises collateral estoppel,

or issue preclusion, as an affirmative defense and it is clear from the face of the complaint, and

consideration of matters which the court may take judicial notice of, that the plaintiff’s claims

are barred as a matter of law.” Wachtmeister v. Swiesz, 59 F. App’x 428, 429 (2d Cir. 2003).

“The party asserting collateral estoppel bears the burden of demonstrating that it is entitled to

this relief.” Bear, Stearns & Co. v. 1109580 Ontario, Inc., 409 F.3d 87, 93 (2d Cir. 2005).

DISCUSSION

“Collateral estoppel, or issue preclusion, prevents parties or their privies from relitigating

in a subsequent action an issue of fact or law that was fully and fairly litigated in a prior

proceeding.” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 288 (2d Cir. 2002). “The

principle holds true when a court has resolved an issue, and should do so equally when the issue

has been decided by an administrative agency, be it state or federal, which acts in a judicial

capacity.” Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991); see also

Rahman v. U.S. Dep’t of Homeland Sec., 593 F. Supp. 3d 49, 54 (E.D.N.Y. 2022) (“Collateral

estoppel (and res judicata) may apply to federal agencies’ final determinations.”), aff’d sub nom.

Rahman v. Mayorkas, No. 22-904-cv, 2023 WL 2397027 (2d Cir. Mar. 8, 2023). Defendants

argue that Plaintiffs are collaterally estopped from asserting their claims in this action due to the

OWCP’s finding that Mr. Koch’s alleged traumatic injuries were not causally related to the

Incident. See ECF No. 73 at 6; ECF No. 74 at 4.7 Plaintiffs respond that the doctrine of

collateral estoppel should not apply because New York law prohibits it and because “there is no

identicality of issue.” See ECF No. 76 at 2, 8. For the reasons set forth below, the Court finds

collateral estoppel applies in this case and Plaintiffs are therefore barred from relitigating the

same issue already decided by the OWCP.

I. Federal Law Applies

Plaintiffs assert that “the Court should apply New York state law and determine that

collateral estoppel may not be invoked.” ECF No. 76 at 2. On the other hand, Defendants argue

that federal law principles govern. ECF No. 78 at 9–11; ECF No. 79 at 7–9. The Court agrees

with Defendants that federal law governs the determination of whether judgments of a federal

agency have preclusive effect. Although “[a] federal court sitting in diversity generally applies

7 Although Defendants argue that both the Injury Decision and the Disability Decision are

preclusive of Plaintiffs’ claims, see ECF No. 74 at 14–15; ECF No. 79 at 11–14, the Court

considers only the preclusive effect of the Injury Decision because only in the Injury Decision

did the OWCP find specifically that the traumatic injuries alleged here were not caused by the

Incident, see infra § III.A.

the law of the forum state,” Levine v. Sears Roebuck & Co., 200 F. Supp. 2d 180, 186 n.10

(E.D.N.Y. 2002), “the preclusive effect of a judgment rendered by a federal court on a federal

question is determined by federal law principles, even where, as here, a subsequent court sits in

diversity,” Stinnett v. Delta Air Lines, Inc., 803 F. App’x 505, 508 n.3 (2d Cir. 2020) (emphasis

in original). In other words, “[t]he federal standard for collateral estoppel governs the preclusive

effect of a federal decision resolving issues of federal law.” In re Horowitz, No. 14-36884, 2016

WL 1039581, at *5 (Bankr. S.D.N.Y. Mar. 15, 2016). Here, the OWCP’s Injury Decision

resolved an issue of federal law; namely, whether Mr. Koch’s claimed traumatic injuries were

causally related to the Incident in a way that would qualify Mr. Koch for workers’ compensation

under the FECA.8 The OWCP answered this question in the negative. See ECF No. 72-3 at 2–4.

And, as discussed in more detail below, see infra § II, the Court finds that the OWCP was acting

in a judicial capacity in doing so. Accordingly, “[s]ince the prior judgment in this case was that

of a federal agency acting in a judicial capacity, this Court will apply the federal law of collateral

estoppel.” See Hinojos v. Honeywell Fed. Mfg. & Techs., LLC, No. 07-cv-0022, 2007 WL

9700827, at *3 (D.N.M. Apr. 6, 2007) (applying federal law of collateral estoppel where prior

action was adjudicated under the Contractor Employee Protection Program).

II. The OWCP Decision May Be Given Preclusive Effect

The Court must next address the issue of whether a decision by a federal agency may be

given preclusive effect by a federal court sitting in diversity. Under federal common law,

8 “FECA provides compensation for personal injuries sustained by a federal employee

while in the performance of his duty.” Shuford v. United States, No. 13-cv-6303, 2014 WL

4199408, at *4 (E.D.N.Y. Aug. 21, 2014). “Congress has vested the Secretary of Labor . . . with

exclusive authority to administer and decide all questions arising under the FECA.” Id. at *3.

“The Secretary of Labor delegated the authority to administer programs under FECA to the

Director of the [OWCP] . . . .” Id. at *4 n.6. “The ECAB has jurisdiction to consider and decide

appeals from final decisions of OWCP in any case arising under the FECA.” Id.

“where a single issue is before a court and an administrative agency, preclusion . . . often

applies.” B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 148 (2015) (analyzing the

preclusive effect of a decision by the Trademark Trial and Appeal Board). “To enforce repose,

an administrative determination may be given collateral estoppel effect in a subsequent civil

action when an administrative agency acted in a judicial capacity and resolved disputed issues of

fact properly before it which the parties have had an adequate opportunity to litigate.”

Chauffeur’s Training Sch., Inc. v. Spellings, 478 F.3d 117, 132 (2d Cir. 2007). Defendant

Bobcat argues that the OWCP acted in a judicial capacity when it determined that no causal

relationship exists between the Incident and the severe injuries Plaintiffs allege here. ECF

No. 73 at 9–10. On this point, which is uncontested by Plaintiffs, the Court agrees.

For an administrative agency to act in a judicial capacity, the agency must use

“procedures substantially similar to those employed by the courts.” Casmento v. Volmar

Constr., Inc., No. 20-cv-0944, 2021 WL 1062343, at *4 (S.D.N.Y. Mar. 19, 2021); accord

United States ex rel. Kirk v. Schindler Elevator Corp., 926 F. Supp. 2d 510, 520 (S.D.N.Y.

2013). Here, Mr. Koch had the opportunity to submit evidence to the OWCP, and according to

the Injury Decision, he did, in fact, submit two rounds of evidence, which consisted of medical

reports and opinions, as well as arguments to support his claim. See ECF No. 72-3 at 2–3.

Based on the evidence Mr. Koch submitted, the OWCP made an adjudicative determination—

specifically, that the Incident was not the cause of Mr. Koch’s alleged traumatic injuries. See

ECF No. 72-3 at 4. In response to an unfavorable ruling, Mr. Koch could either request

reconsideration by the OWCP or appeal to the ECAB. See id. at 5–6.9 Courts have found that,

9 Mr. Koch did not request reconsideration of the Injury Decision, but instead requested

reconsideration of only the Disability Decision. See ECF No. 72-2 at 4–8. After the OWCP

by implementing these types of procedures, administrative agencies are acting in judicial

capacities. See Spellings, 478 F.3d at 132 (finding that a Department of Education decision,

which was issued after plaintiff had an opportunity to submit evidence and argument, was

preclusive even though the DOE procedures did not allow for discovery nor cross-examination);

see also Bachman v. United States, No. 03-cv-4897, 2006 WL 3761985, at *4–6 (D.N.J. Dec. 19,

2006) (giving preclusive effect to a finding of the OWCP). Here, there is no question that the

OWCP acted in a judicial capacity when it made the Injury Decision. Accordingly, the Court

gives the OWCP’s Injury Decision preclusive effect under federal law.

Plaintiffs argue that the Injury Decision should not be given preclusive effect because of

the recently enacted New York Workers’ Compensation Law (“NYWCL”) Section 118-A. See

ECF No. 76 at 8. Section 118-A provides that:

With respect to an action for a workers’ compensation claim permissible under this

chapter, no finding or decision by the workers’ compensation board, judge or other

arbiter shall be given collateral estoppel effect in any other action or proceeding

arising out of the same occurrence, other than the determination of the existence of

an employer employee relationship.

NYWCL § 118-A. As an initial matter, given that the Court has already determined that federal

law governs the preclusive effect of a federal agency’s decision, New York law plays no role in

determining the preclusive effect of the OWCP’s Injury Decision. See Stinnett, 803 F. App’x at

508 (“This may be the preferred result under New York law, but federal courts apply federal law

in determining the preclusive effect of a federal judgment.”). However, even assuming arguendo

that New York law applies to the question of the preclusive effect of the Injury Decision, Section

denied his request to modify the Disability Decision, Mr. Koch then appealed to the ECAB,

which affirmed the Disability Decision. See id.

118-A applies only to decisions rendered by the New York State Workers’ Compensation Board

concerning claims filed under the NYWCL.

The first clause of Section 118-A specifies that the section applies to “an action for a

workers’ compensation claim permissible under this chapter.” NYWCL § 118-A (emphasis

added). That chapter governs workers’ compensation claims in New York State. See id. § 142

(“The workmen’s compensation board shall have power to hear and determine all claims for

compensation or benefits . . . under the provisions of this chapter . . . .”). And “board” is

specifically defined as the New York Workers’ Compensation Board. See id. § 2 (“‘Board’

means the workers’ compensation board of the state of New York.”). “If the statutory language

is unambiguous, [courts] construe the statute according to the plain meaning of its words.”

United States ex rel. Wood v. Allergan, Inc., 899 F.3d 163, 171 (2d Cir. 2018). Because the

Court finds that Section 118-A unambiguously applies only to the decisions of the New York

Worker’s Compensation Board, Plaintiffs’ argument regarding the applicability of NYWCL

Section 118-A necessarily fails.

III. Plaintiffs are Collaterally Estopped from Litigating Their Claims in This

Court

Collateral estoppel applies where: “(1) the identical issue was raised in a previous

proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the

parties had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was

necessary to support a valid and final judgment on the merits.” Wyly v. Weiss, 697 F.3d 131, 141

(2d Cir. 2012).10 Defendants argue that the Injury Decision meets all these requirements. See

10 As previously discussed, federal law applies in determining the preclusive effect of a

federal judgment. Marvel, 310 F.3d at 286. However, even if the Court were to engage in the

collateral estoppel analysis applied under New York law, the result here would be the same. See

id. (“[T]here is no discernible difference between federal and New York law concerning res

ECF No. 73 at 11; ECF No. 74 at 13–17. Plaintiffs contest only the first prong of the analysis,

contending that “there is no identicality of issue,” and therefore collateral estoppel should not

apply. See ECF No. 76 at 8.

A. The Issue of Causation Was Raised Before the OWCP

Plaintiffs argue that the identical issue was not litigated in the context of Mr. Koch’s

disability claim. See id. at 8–13. They further argue that the Disability Decision, and subsequent

requests for reconsideration and appeals, focused on whether Mr. Koch met his burden of

proving that he was “totally disabled,” whereas the issue here is whether he “suffered a disabling

injury as a result of the [Incident].” See id. at 13. By ignoring the Injury Decision, Plaintiffs’

argument misses the point. Following the Incident, Mr. Koch filed two types of claims with

OWCP: (1) a “traumatic injury” claim for the injuries he allegedly suffered as a result of the

Incident, see ECF No. 72-3 at 2, and (2) a “wage-loss compensation” claim for an alleged

disability stemming from those injuries, see ECF No. 72-2 at 3. In the Injury Decision, the

OWCP did not accept any of Mr. Koch’s “traumatic injury” claims except for a left hand bruise.

ECF No. 72-3 at 4; see also ECF No. 72-2 at 4. In its Disability Decision, the OWCP denied

Mr. Koch’s disability claim because “[i]t found that the record contained insufficient medical

evidence explaining how [Mr. Koch’s] alleged total disability for the claimed period was due to

the accepted [hand bruise].” ECF No. 72-2 at 5. The ECAB affirmed the Disability Decision.

See id. at 8.

Whether Mr. Koch was disabled as a result of the hand bruise is a different question than

whether the injuries Plaintiff alleges here were caused by the Incident. “[T]o meet the identity-

judicata and collateral estoppel.”); see also Belsito v. Cnty. of Erie, No. 19-cv-215, 2021 WL

3053386, at *4 (W.D.N.Y. July 20, 2021) (“The principles of collateral estoppel are generally the

same under New York and federal law.”).

of-issues prong of collateral estoppel, it is not necessary that the issues be exactly identical; it is

sufficient that the issues presented in the earlier litigation are substantially the same as those

presented by the later action.” Cerny v. Rayburn, 972 F. Supp. 2d 308, 316–17 (E.D.N.Y. 2013).

In this case, Plaintiffs allege that the Incident caused significant injuries to Mr. Koch’s left hand

and wrist. See, e.g., ECF No. 13 ¶¶ 23, 58. Specifically, Plaintiffs allege that the Loader came

into contact with Mr. Koch’s “left upper extremity,” causing him to suffer multiple “severe” and

“permanent” injuries as a result of the Incident. Id. ¶ 8. The issues raised here more closely

align with the issues addressed in the Injury Decision, and not the Disability Decision.

Furthermore, Defendants are not relying on estoppel for the issue of whether Mr. Koch was

disabled as a result of the Incident. Rather, Defendants are seeking to estop Plaintiffs from

claiming that the Incident caused Mr. Koch’s injuries. See ECF No. 73 at 9; ECF No. 74 at 13.

Accordingly, the Court considers the preclusive effect of the OWCP’s Injury Decision where the

agency found that Mr. Koch’s injuries were not “causally related” to the Incident. See ECF

No. 72-3 at 2–4.11

Although Mr. Koch was given the opportunity to provide supporting evidence before the

OWCP made the Injury Decision, the OWCP still determined that, “after a thorough review of

11 Defendant Clark argues that the injuries alleged here are the same as the injuries alleged

in the Injury Decision. ECF No. 74 at 14–15. Plaintiffs do not address this in their Amended

Complaint nor Opposition. See generally ECF No. 13; ECF No. 76. On that basis alone, the

Court finds that Plaintiffs have abandoned any argument that the injuries alleged in this case are

not the same as those in the Injury Decision. See Charlier v. 21 Astor Place Condo., No. 22-cv-

05903, 2024 WL 4026253, at *8 (S.D.N.Y. Sept. 3, 2024) (deeming claims abandoned where

plaintiff did not raise any contrary arguments in opposition to a motion to dismiss). That is the

case even without refence to Plaintiff’s Rule 26 disclosure, see ECF No. 74 at 15, which the

Court may not rely on in this posture. See Hardy v. City of New York, No. 12-17, 2013 WL

5231459, *2 (S.D.N.Y. July 9, 2013) (“In considering a Rule 12(c) motion, a court generally

may not rely on documents outside the pleadings.”).

all evidence,” it was “not sufficient to establish that the medical condition is causally related to

the [Incident].” Id. at 3. In other words, the OWCP ultimately denied Mr. Koch’s “traumatic

injury claim” because he failed to establish a causal link between his alleged injuries and the

Incident. See id. at 2–4. To ultimately sustain any of their claims here, Plaintiffs must similarly

prove that the Incident caused Mr. Koch’s alleged injuries. See Oden v. Bos. Sci. Corp., 330 F.

Supp. 3d 877, 888 (E.D.N.Y. 2018) (“In order to adequately plead a claim with regard to [strict

liability, negligence, or breach of express or implied warranty], the plaintiff must show” that the

“product was the actual and proximate cause of the plaintiff’s injury.”). Because that issue was

squarely decided against Mr. Koch in the Injury Decision, the Court finds that Defendants satisfy

the first prong of the collateral estoppel analysis.

B. The Issue Was Actually Litigated Before the OWCP

“To determine whether an issue has been actually litigated for issue preclusion purposes,

the Court reviews the record in the prior case to ensure that the issue has been submitted to the

trier of fact for determination.” Rivera v. Doe, No. 09-cv-00007, 2011 WL 2222306, at *5

(D. Conn. June 7, 2011). Plaintiffs do not address this prong of the collateral estoppel analysis in

their papers and therefore have abandoned any argument that it is not satisfied. See generally

ECF No. 76; see also Jackson v. Fed. Express, 766 F.3d 189, 198 (2d Cir. 2014) (“[I]n the case

of a counseled party, a court may, when appropriate, infer from a party’s partial opposition that

relevant claims . . . that are not defended have been abandoned.”).12 “Nevertheless, out of an

abundance of caution, the Court examines this issue,” John v. Lewis, No. 15-cv-5346, 2017 WL

1208428, at *9 n.17 (E.D.N.Y. Mar. 31, 2017), and finds that Mr. Koch actually litigated the

12 Plaintiffs also do not address the “full and fair opportunity to litigate” nor the “necessary

to support a final judgment” prongs of collateral estoppel and therefore have similarly abandoned

any argument that those prongs are not satisfied.

causation element of his traumatic injury claim. Here, the OWCP found in the Injury Decision,

“after a thorough review of all evidence,” that Mr. Koch had not “sustained an injury and/or

medical condition causally related to the [Incident].” ECF No. 72-3 at 3–4. Mr. Koch’s “claim

for the diagnosed conditions . . . [was] denied based on the fifth basic element, [c]ausal

[r]elationship.” Id. at 4. Therefore, because causation between the Incident and Mr. Koch’s

claimed injuries was an “issue upon which the [agency’s] judgment relied, . . . the identical issue

was actually litigated and decided.” See Galin v. United States, No. 08-cv-2508, 2008 WL

5378387, at *8 (E.D.N.Y. Dec. 23, 2008).

C. Plaintiffs Had a Full and Fair Opportunity to Litigate the Issue Before the

OWCP

As to the third prong of the analysis, “there is no simple test for determining whether a

party has had a full and fair opportunity to litigate the claim or issue sought to be precluded.”

Rivera v. Patnode, No. 11-cv-0532, 2012 WL 1029661, at *4 (N.D.N.Y. Mar. 26, 2012).

“Rather, the basic concern is one of fairness.” Cruz v. Root, 932 F. Supp. 66, 68 (W.D.N.Y.

1996). The Court finds that the OWCP gave Mr. Koch ample opportunity to support his claim,

provide additional evidence, and challenge unfavorable decisions through reconsideration or

appeal. See generally ECF No. 72-2; ECF No. 72-3. The fact that Mr. Koch did not request

reconsideration nor appeal the Injury Decision does not render his opportunity to litigate any less

meaningful. See Peralta v. St. Lukes Roosevelt Hosp., No. 14-cv-2609, 2015 WL 394764, at *6

(S.D.N.Y. June 26, 2015) (“Plaintiff’s choice to not avail himself of the process available to him

did not deprive him of a full and fair opportunity to present his claims.”). Ultimately, in the

Injury Decision, the OWCP found that “the medical evidence in [Mr. Koch’s] file fails to

provide a well-reasoned medical opinion, supported by objective findings, as to exactly how [the

Incident] caused, aggravated or contributed to [Mr. Koch’s] diagnosed medical conditions.”

ECF No. 72-3 at 3. Accordingly, the proceeding before the OWCP demonstrates that Mr. Koch

had a full and fair opportunity to litigate the issue.

D. The Causal Element Was Necessary to Support a Final Judgment by the

OWCP

“The fourth prong of the collateral estoppel test asks whether the issue as to which

preclusion is sought was necessary to support a valid and final judgment on the merits in the

prior proceeding. An issue is necessary or essential only when the final outcome hinges on it.”

Wash. State Inv. Bd. v. Odebrecht S.A., No. 17-cv-8118, 2024 WL 3616422, at *8 (S.D.N.Y. July

10, 2024) (emphasis in original). Under the FECA, the OWCP was required to determine

whether the Incident caused Mr. Koch’s medical injuries because, as discussed above, “Causal

Relationship” is the fifth of five requirements for “acceptance” of such a claim. See ECF

No. 72-3 at 3. The OWCP found that Mr. Koch had met the first four requirements but denied

Mr. Koch’s claim because there was a lack of evidence to establish the causal relationship

between his injuries and the Incident. See id. Therefore, the OWCP’s determination that

Mr. Koch failed to establish a causal relationship was essential to the Injury Decision and

necessary to support its final judgment.

Plaintiffs seek to hold Defendants liable for damages on theories of negligence, breach of

warranty, and strict liability. See ECF No. 13 at 2–13. Each of those causes of action requires

proof of causation linking the Incident to the alleged injuries. See Fahey v. A.O. Smith Corp.,

908 N.Y.S.2d 719, 723 (N.Y. App. Div. 2010) (“Whether an action is pleaded in strict products

liability, breach of warranty, or negligence, the plaintiffs must prove that the alleged defect is a

substantial cause of the events which produced the injury.”). That question—of whether there is

a causal relationship between Mr. Koch’s injuries and the Incident—however, has already been

answered by the OWCP in the negative. And, because those proceedings meet the requirements

of collateral estoppel, Plaintiffs are precluded from relitigating the causation issue here. As such,

all their claims must be dismissed.13

IV. The Court Declines to Grant Plaintiffs Leave to Amend

The Court declines to grant Plaintiffs leave to amend. See Iwachiw v. Travelers, No. 14-

cv-5615, 2015 WL 5476070, at *3 (E.D.N.Y. Sept. 15, 2015) (denying leave to amend after

granting a motion for judgment on the pleadings pursuant to Rule 12(c)). “A court should freely

give leave when justice so requires, but it may, in its discretion, deny leave to amend for good

reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.”

MSP Recovery Claims, Series LLC v. Hereford Ins. Co., 66 F.4th 77, 90 (2d Cir. 2023)

(affirming denial of leave to amend). Plaintiffs do not seek leave to amend their complaint for a

second time, and on that basis alone, the Court need not grant it. See TechnoMarine SA v.

Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (“A plaintiff need not be given leave to amend

if it fails to specify either to the district court or to the court of appeals how amendment would

cure the pleading deficiencies in its complaint.”). Nevertheless, the Court would decline to grant

leave to amend, as Plaintiffs’ claims are barred by collateral estoppel, and any amendment would

therefore be futile. See Linden Airport Mgmt. Corp. v. N.Y.C. Econ. Dev. Corp., No. 08-cv-

13 Because Mr. Koch’s claims are dismissed, Mrs. Koch’s loss of consortium claim must

also be dismissed as that claim is derivative of Mr. Koch’s claims. See Weiss v. Vacca, 196

N.Y.S.3d 479, 483–84 (N.Y. App. Div. 2023) (“Since a loss of consortium cause of action is

derivative in nature, the dismissal of the primary causes of action mandates dismissal of this

derivative cause of action as well.”); accord Dunham v. Covidien LP, No. 19-cv-2851, 2019 WL

6341179, at *7 (S.D.N.Y. Nov. 27, 2019). It follows that because any amendment to Mr. Koch’s

claims would be futile, as discussed infra § IV, any amendment to Mrs. Koch’s claim would also

be futile. Ungureanu v. A. Teichert & Son, No. 11-cv-0316, 2011 WL 4862425, at *12 (E.D.

Cal. Oct. 13, 2011) (“There being no available state law claim from which plaintiff . . . can

derive her loss of consortium . . . given her derivative status, this claim should be dismissed

without leave to amend.”).

3810, 2011 WL 2226625, at *10 (S.D.N.Y. June 1, 2011) (“Because claims barred by collateral

estoppel cannot withstand a motion to dismiss pursuant to Rule 12(b)(6), the Court denies

Plaintiffs’ motion to amend as futile.”); accord Krajeski v. Bank of Am., N.A., No. 19-cv-1385,

2020 WL 42805, at *8 (E.D.N.Y. Jan. 2, 2020).

CONCLUSION

For the foregoing reasons, Defendants’ motions to dismiss, construed as motions for

judgment on the pleadings, are granted as to all of Plaintiffs’ claims. See ECF No. 73; ECF

No. 74. The Amended Complaint is dismissed with prejudice and the Court declines to grant

leave to amend. The Clerk of Court is respectfully directed to enter judgment consistent with

this Order and to close this case.

SO ORDERED.

/s/ Hector Gonzalez

HECTOR GONZALEZ

United States District Judge

Dated: Brooklyn, New York

March 7, 2025