United States District Court, D. Arizona
ORDER
BRIDGET S. BADE UNITED STATES MAGISTRATE JUDGE.
Defendants
Johnnye L. Woodle, Lloyd H. Woodle, and Specialized Services
Transportation, Inc. have filed a motion for partial summary
judgment pursuant to Rule 56(a) of the Federal Rules of Civil
Procedure.[1] (Docs. 62, 63.) Defendants argue that they
are entitled to summary judgment as a matter of law on
Plaintiff Joyce Garrett's damages claims for (1) past or
future medical treatment provided, or to be provided, after
February 1, 2016, and (2) wage loss or future wage loss and
loss of earning capacity resulting from Plaintiff's early
retirement in August 2017. (Doc. 62 at 1.) Defendants assert
that they are entitled to summary judgment because Plaintiff
has not disclosed any expert opinion evidence to establish
that these damages were caused by Defendants' alleged
negligence. (Id.) The motion is fully briefed.
(Docs. 65, 66.) As set forth below, the Court grants the
motion, in part.
I.
Background
This
matter arises from a May 13, 2015 collision involving two
tractor-trailers traveling westbound on Interstate 40 in
Mohave County, Arizona.[2] (DSOF ¶ 5.)[3] At the time of
the accident, Plaintiff was a passenger in a tractor-trailer
that was struck from behind by another tractor-trailer that
Defendant Johnnye L. Woodle (“Woodle”) was
driving and that Defendant Specialized Services
Transportation, Inc. (“SST”) owned. (Id.
at ¶ 6, Doc. 1 at ¶ 10.) Plaintiff was a
self-employed commercial truck driver working as a team with
her husband. (DSOF ¶ 5.) Plaintiff alleges that Woodle
was negligent in causing the accident by failing to control
her speed to avoid a collision, and by causing a collision
with the tractor-trailer in which Plaintiff was a passenger.
(Doc. 1 at ¶ 11.) Plaintiff claims that her neck, back,
and shoulders were injured in the accident. (DSOF ¶ 8.)
A.
Plaintiff's Claims
Plaintiff
alleges the following claims: (1) negligence against Woodle
(Count One); (2) negligence per se against Woodle
based on the breach of her statutory duty to control her
speed and avoid a collision, Ariz. Rev. Stat. §
28-701(A) (Count Two); (3) negligent entrustment against SST,
owner of the tractor-trailer that Woodle was driving (Count
Three); and (4) respondeat superior liability
against SST for Woodle's negligence (Count Four). (Doc. 1
at ¶¶ 14-30.) Plaintiff alleges that “as a
proximate result of the negligence, carelessness, and
recklessness of the Defendant [Woodle], Plaintiff sustained
severe personal injuries.” (Id. at ¶ 12.)
B.
Plaintiff's Medical Treatment and Lost Wage
Claims
Defendants state that Plaintiff seeks to recover damages for
(1) past and future medical treatment that she allegedly
incurred, or will incur, as a result of this accident, and
(2) four years of lost wages and lost earning capacity
resulting from her early retirement allegedly caused by her
pain from the injuries suffered in the accident. (DSOF
¶¶ 7-8.) A few days after the accident, on May 15,
2015, Plaintiff began seeking medical treatment with various
providers. (DSOF ¶ 9.) On February 1, 2016, Plaintiff
had an appointment with Dr. Haynes. (Id.) Dr. Haynes
told Plaintiff her pain “was all in [her] head.”
(DSOF ¶ 10.) Following the February 1, 2016 visit with
Dr. Haynes, Plaintiff did not seek medical treatment until
October 7, 2016. (DSOF ¶ 11.) During that eight month
gap in treatment, Plaintiff had a screening examination with
the U.S. Department of Transportation on June 8, 2016. (DSOF
¶ 12.) During that examination, Plaintiff reported that
she was not experiencing any “neck or back
problems.” (Id.)
Plaintiff
resumed treatment on October 7, 2016 with Dr. Scott Campbell,
her current pain management physician. (DSOF ¶ 13).
During his deposition in this case, Dr. Campbell confirmed
that he has not provided, and has not been asked to provide,
any opinions concerning (1) whether Plaintiff's condition
is permanent, (2) the duration of Plaintiff's condition,
(3) Plaintiff's ability to return to work based on her
condition, or (4) the future treatment Plaintiff will need.
(DSOF ¶ 14.) Dr. Campbell confirmed that a person does
not have to suffer trauma, such as a car accident, to have
neck pain and to require the treatment he provided to
Plaintiff. (DSOF ¶ 15.) Dr. Campbell's May 26, 2017
treatment note states that Plaintiff “was diagnosed
with fibromyalgia and lupus recently and is followed by a
specialist.” (DSOF ¶ 16.) During his deposition,
Dr. Campbell stated that pain management treatment is
“pretty common” for people diagnosed with
fibromyalgia. (DSOF ¶ 17.)
Plaintiff
also seeks four years of lost wages, including future lost
wages, because she claims her injuries forced her to retire
early.[4] (DSOF ¶ 18.) Specifically, Plaintiff
asserts that she “could no longer drive [a
tractor-trailer] due to her pain. Plaintiff's ability to
work has been cut short by this accident.”
(Id.) Plaintiff does not dispute that three months
after the accident, in the middle of August 2015, she resumed
working with her husband as a truck driving team, and
continued to work as a truck driver until August 2017. (DSOF
¶ 19.)
II.
Summary Judgment Standard
Summary
judgment is appropriate if the evidence, viewed in the light
most favorable to the nonmoving party, shows “that
there is no genuine dispute as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Only disputes over facts that might
affect the outcome of the suit will preclude the entry of
summary judgment, and the disputed evidence must be
“such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
A party
seeking summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The nonmoving party
may not rely on the mere allegations in the pleadings, but
must set forth by affidavit, or other appropriate evidence,
specific facts showing there is a genuine issue for trial.
Id. at 249. The nonmoving party must produce at
least some “significant probative evidence tending to
support” its position. Smolen v. Deloitte, Haskins,
& Sells, 921 F.2d 959, 963 (9th Cir. 1990).
The
issue is not whether the “‘evidence unmistakably
favors one side or the other but whether a fair-minded jury
could return a verdict for the [nonmoving party] on the
evidence presented.'” United States ex rel.
Anderson v. N. Telecom, Inc., 52 F.3d 810, 815 (9th Cir.
1995) (quoting Liberty Lobby, 477 U.S. at 252).
“If a moving party fails to carry its initial burden of
production, the nonmoving party has no obligation to produce
anything, even if the nonmoving party would have the ultimate
burden of persuasion at trial.” Nissan Fire &
Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03
(9th Cir. 2000). The Court considers the motion for partial
summary judgment under this standard.
III.
Defendants' Motion for Partial Summary Judgment
Defendants
move for partial summary judgment on Plaintiff's claims
for damages for certain past and future medical treatment,
and for wage loss and loss of earning capacity based on her
early retirement. (Doc. 62 at 1.) Defendants assert that they
are entitled to summary judgment because Plaintiff has not
disclosed any expert opinion evidence to establish that the
accident caused these damages. (Id. at 2.) In
response, Plaintiff asserts that she properly disclosed
expert opinions from her treating physicians and complied
with Rule 26(a)(2)(C). (Doc. 65 at 3.) As set forth below,
the Court finds that Plaintiff did not properly disclose
expert opinions from her treating physicians.[5]
A.
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