Garrett v. Woodle

          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]

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