United States District Court, D. Arizona
EILEEN S. WILLETT, Magistrate Judge.
Pending before the Court are Defendants' Motion for Summary Judgment (Doc. 55) and Motion to Exclude Arthur H. Schurgin, D.O. (Doc. 58). Both motions are fully briefed. Oral argument has been requested. However, the Court deems oral argument unnecessary to a determination of the issues presented. The request for oral argument is denied. The matter was assigned to the undersigned on November 14, 2014. All parties have consented to a Magistrate Judge presiding over the case (Docs. 11, 12, and 14) pursuant to Rule 73, Fed.R.Civ.P. and 28 U.S.C. § 636(c). The Federal Court has jurisdiction pursuant to 28 U.S.C. § 1332 and 1441(B).
This is a personal injury case arising from a motor vehicle accident which occurred on July 15, 2011 in Maricopa County, Arizona. While driving a F-150 truck owned by Defendant Sherwin-Williams, Defendant Reavis (formerly Daugherty) rear-ended Plaintiff Gentry's Ford Aspire. Plaintiff Gentry filed a Complaint (Doc. 1-1 at 4-6) which alleges personal injuries sustained as a result of the negligence of Defendant Reavis and liability under respondeat superior as to Defendant Sherwin-Williams. Defendants have answered (Doc. 16, Doc. 17), and all issues are joined.
Defendants move for summary judgment on the issue of causation. Defendants assert that Plaintiff has no evidence which will establish to a reasonable degree of medical probability that Plaintiff's alleged injuries to her xiphoid process are causally related to the collision of July 15, 2011. Defendants assert that because Plaintiff has no expert who will so testify as to the issue of causation, Plaintiff's negligence claim should be dismissed with prejudice.
Defendants present testimony from their bio-mechanical engineer and accident reconstructionist, Russell L. Anderson. Mr. Anderson states to a reasonable degree of scientific certainty that the force of the collision on Plaintiff's body was similar to "that which has been measured in an amusement park bumper car collision." (Doc. 56-1 at 25). Mr. Anderson opines that Plaintiff's body motions as a result of the collision were "minor" and any abdominal and thoracic bruising due to shoulder belt forces would be "inconsistent with both the type and magnitude of the subject accident." ( Id. ). Plaintiff did not hit the steering wheel or dash. She presented with no bruising on her chest.
Defendants also present testimony from Plaintiff's treating physicians: Michael Smith, M.D., a thoracic surgeon, and Gary Frank, M.D., a pain management specialist. Defendants assert that neither physician relates the injury to Plaintiff's xiphoid process and pain associated with her xiphoid process to the accident. (Doc. 56-3 at 24, 27 and Doc. 56-4 at 8-9). Defendants' medical expert, Pierre Tibi, M.D., is a cardiothoracic surgeon. Defendants' expert will opine that the accident did not cause any injury to Plaintiff's xiphoid process or contribute to Plaintiff's need for a xiphoidectomy. (Doc. 56-5 at 12). Dr. Tibi will further state that Plaintiff's other symptoms, including diarrhea, tarry stools and nausea are not related to the xiphoid process or the accident. (Doc. 56-5 at 11-13).
Plaintiff asserts that material facts are omitted from Defendants' Motion, creating genuine issues of material fact which necessitate the denial of Defendants' Motion. Plaintiff identifies the following injuries sustained as a result of the accident: acute cervical strain, acute lumbar strain, thoracic strain and contusion of the abdominal wall. (Doc. 63-1 at 1-4). Plaintiff's abdominal pain and mid-back pain worsened over time. She was eventually seen by Dr. Smith who performed a xiphoidectomy which successfully eliminated xiphoid pain. ( Id. ). She also saw Dr. Frank for pain. She continues to experience pain in her costochrondal region. ( Id. ). Dr. Arthur Schurgin is Plaintiff's current treating physician for that pain. Dr. Schurgin causally relates the "patient's constellation of symptoms" and treatment received to the car accident. (Doc. 63-1 at 44).
Plaintiff states that she was healthy and symptom free in her ribs and chest prior to the accident. (Doc. 63-1 at 2). Nor had Plaintiff ever been in an accident prior to July 15, 2011.
Plaintiff concedes that Drs. Frank and Smith declined to give an opinion as to whether the July 2011 accident resulted in Plaintiff's injuries. Both doctors were unable to opine either for or against causation. Plaintiff urges the Court to accept Plaintiff's testimony and the doctors' testimony together to establish causation despite a lack of explicit testimony from the medical experts relating Plaintiff's injuries to the accident to a reasonable degree of medical probability.
Standard of Review
Summary judgment is appropriate if the evidence, when reviewed in a light most favorable to the non-moving party, demonstrates "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Substantive law determines which facts are material in a case and "only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "A fact issue is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at 248). Thus, the non-moving party must show that the genuine factual issues "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (quoting Anderson, 477 U.S. at 250).
Because "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, ... [t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor" at the summary judgment stage. Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)); Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999) ("Issues of credibility, including questions of intent, should be left to the jury.") (citations omitted).
When moving for summary judgment, the burden of proof initially rests with the moving party to present the basis for his motion and to identify those portions of the record and affidavits that he believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant fails to carry his initial burden of production, the non-movant need not produce anything further. The motion for summary judgment would then fail. However, if the movant meets his initial burden of production, then the burden shifts to the non-moving party to show that a genuine issue of material fact exists and that the movant is not entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986); Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The non-movant need not establish a material issue of fact conclusively in his favor. First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). However, he ...