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Brandner v. State Farm Mutual Automobile Insurance Co.

United States District Court, E.D. Louisiana

February 8, 2019

MICHAEL BRANDNER, JR., Plaintiff
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, ET AL., Defendants

         SECTION: “E” (4)

          ORDER AND REASONS

          SUSIE MORGAN UNITED STATES DISTRICT JUDGE.

         Before the Court is a Motion for Partial Summary Judgment on the Issue of Causation filed by Plaintiff Michael Brandner.[1] Defendant State Farm Mutual Automobile Insurance Company (“State Farm”) opposes the motion.[2] Plaintiff filed a reply.[3] For the following reasons, the Motion for Partial Summary Judgment is DENIED.

         FACTUAL & PROCEDURAL BACKGROUND

         This case arises out of a motor vehicle accident that occurred on August 25, 2016.[4]Plaintiff Michael Brandner alleges he and his children were stopped in a lane of travel on I-10 in Jefferson Parish when Defendant Mirna Velasquez struck their vehicle from behind.[5] The parties have stipulated that Defendant Velasquez was 100% at fault for the collision.[6] Plaintiff's remaining claim is against State Farm in its capacity as his primary uninsured motorist coverage carrier.[7]

         On December 24, 2018, Plaintiff moved for summary judgment on the issue of medical causation.[8] Plaintiff contends there are no material facts in dispute with respect to whether the injuries to his neck (cervical spine), back (lumbar spine), left shoulder, and right elbow were caused and/or aggravated by the August 25, 2016 motor vehicle accident because six treating physicians and the IME expert hired by State Farm all conclude the motor vehicle accident more probably than not caused a new injury or aggravated an old injury.[9] State Farm argues there are material facts in dispute with respect to the causation of Plaintiff's injuries because the doctors' conclusions are conditioned upon Plaintiff's reports of medical history and pain. State Farm highlights that Plaintiff had pre-existing injuries, was involved in other accidents after the August 25, 2016 incident, and did not provide accurate reports of pain to the doctors.[10]

         LEGAL STANDARD

         Summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[11] “An issue is material if its resolution could affect the outcome of the action.”[12]When assessing whether a material factual dispute exists, the Court considers “all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence.”[13] All reasonable inferences are drawn in favor of the non-moving party.[14]There is no genuine issue of material fact if, even viewing the evidence in the light most favorable to the non-moving party, no reasonable trier of fact could find for the non-moving party, thus entitling the moving party to judgment as a matter of law.[15]

         “[A] party seeking summary judgment always 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.” To satisfy Rule 56's burden of production, the moving party must do one of two things: “the moving party may submit affirmative evidence that negates an essential element of the nonmoving party's claim” or “the moving party may demonstrate to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim.” If the moving party fails to carry this burden, the motion must be denied. If the moving party successfully carries this burden, the burden of production then shifts to the non-moving party to direct the Court's attention to something in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of material fact does indeed exist.[16]

         If the dispositive issue is one on which the non-moving party will bear the burden of persuasion at trial, the moving party may satisfy its burden of production by either (1) submitting affirmative evidence that negates an essential element of the non-movant's claim, or (2) affirmatively demonstrating that there is no evidence in the record to establish an essential element of the non-movant's claim.[17] If the movant fails to affirmatively show the absence of evidence in the record, its motion for summary judgment must be denied.[18] Thus, the non-moving party may defeat a motion for summary judgment by “calling the Court's attention to supporting evidence already in the record that was overlooked or ignored by the moving party.”[19] “[U]nsubstantiated assertions are not competent summary judgment evidence. The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.'”[20]

         LAW AND ANALYSIS

         Under Louisiana law, a Plaintiff in a personal injury lawsuit must prove by a preponderance of the evidence the causal relationship between the injury sustained and the accident which caused the injury.[21] To demonstrate the causal relationship between the accident and the subsequent injury, a plaintiff must prove through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident.[22]

         I. Doctors' Deposition Testimony and Expert Reports

         Plaintiff's statement of uncontested material facts consists entirely of excerpts from the depositions of Plaintiff's treating physicians and the report of Defendant's IME expert. Plaintiff contends these quotes demonstrate it is undisputed that it is more probable than not that the injuries to his neck (cervical spine), back (lumbar spine), left shoulder, and right elbow were caused by the August 25, 2016 motor vehicle accident.[23]State Farm admits Plaintiff accurately quoted the deposition testimony and expert report.[24] However, State Farm denies that the opinions establish Plaintiff's injuries were caused by the subject accident as a matter of fact. State Farm points out that Plaintiff quotes only parts of the physicians' deposition testimony regarding causation and thus paints an incomplete picture of the doctors' opinions on causation. State Farm also argues the doctors' conclusions are premised upon Plaintiff' providing an accurate self-report of pain and medical history and thus do not establish causation as a matter of fact.

         A. Dr. Charles Schlosser

         Plaintiff's statement of uncontested material quotes Dr. Schlosser's deposition as follows:

Q: Doctor, based upon your examination, based upon the procedures you performed, based upon the information you have regarding Mr. Brandner and the treatment that you provided him in the years 2011, 2014, seeing him for this particular accident, the imaging studies that's in the file, Dr. Lonseth's records, Dr. Lonseth's examinations, can you say it's more probable than not that the automobile accident of August 2016, exacerbated any of Mr. Brandner's cervical injuries?
A: Yes.
Q: Doctor, can you say it's more probable than not that the automobile accident of August 2016, aggravated any of Mr. Brandner's lumbar spine?
A: Yes.[25]

         State Farm points out that later in his deposition, Dr. Schlosser testified as follows:

Q: Okay. The opinions you've rendered today on causation, you would agree those are based on your exam findings, correct?
A: Correct
Q: The history provided by the patient, right?
A: Right.
Q: And then the subjective feedback given by the patient, Mr. Brandner, right?
A: Correct.
Q: You would agree that if the history that was given to you is not accurate, then your opinions would be subject to revision?
A: Possibly.[26]

         B. Dr. Fred DeFrancesch

         Plaintiff's statement of uncontested material quotes Dr. DeFrancesch's deposition as follows:

Q: Let's talk about the second paragraph, just so we're clear?
A: Sure. It appears more probable than not in my professional medical opinion as a board-certified practitioner of Physical Medicine Rehabilitation, Pain and Spinal Cord Injury Medicine, that his cervical and lumbar facet syndromes are related to the accident occurring August 25th,
Q: So, Doctor, here's my very pointed question to you. Doctor, can you say that it's more probable than not that the actual cervical injuries that Mr. Brandner complained of as a result of the August 25th, 2016 is - is directly related to that automobile accident?
A: So, the cervical issues certainly, more likely than not.
Q: Doctor, can you say it's more probable than not that the automobile accident of August 25th, 2016 aggravated and/or exacerbated any prior lumbar juries that he may have had prior to that particular accident?
A: So, yes, very likely. The interesting thing would be what kind of injections did he have. Right? If it was epidural, you probably wouldn't even correlate it to any exacerbation. It would be a new thing all together, because epidurals should not really help a facet-mediated issue.[27]

         State Farm points out that Dr. DeFrancesch also testified as follows:

Q: If you're providing an opinion on causation or etiology of the complaints that you treated him for and the need for future treatment and there's a trauma that's the key issue, would pre-trauma history be a significant part of your determination of etiology?
A: I mean, it can be helpful.
Q: If Mr. Brandner treated for low-back pain for an extended period of time prior to the car accident, would that be an important issue to address in connection with an opinion on etiology?
A: If he was having a longstanding chronic low-back pain, it would certainly be important, yes.[28]

         C. Dr. Michael Haydel

         Plaintiff's statement of uncontested material quotes Dr. Haydel's deposition as follows:

Q: Doctor, I'm going to be a little more general. Doctor, can you say it is more probable than not that the injuries Mr. Brandner presented to you with for his cervical spine are directly related to the August 25th, 2016 automobile accident?
A: More probably than not, correct
Q: Doctor, can you say it is more probable than not that the injuries that Mr. Brandner presented to you with of the lumbar spine were aggravate by the automobile accident of August 25th, 2016?
A: More probably than not they were aggravated, but they were also increased in the injury.
Q: Doctor, would you say it is more probable than not that the automobile accident of August 25th, 2006 caused the actual complaints and symptoms that Mr. Brandner presented to you with for his left shoulder?
A: More probably than not the injury to the left shoulder was the result of the rear-end collision that he sustained.
Q: Doctor, can you say it is more probable than not that the automobile accident of August 25th, 2016, aggravated any preexisting epicondylitis injury to his right elbow?
A: More probably than not the accident he sustained, the rear-end collision, is the result of the aggravation to the right elbow. However, there was significant ligament damage to the right elbow as the result of the accident.[29]

         State Farm points out that Dr. Haydel agreed that “if the reports of pain for a patient are inaccurate, that would ...


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