Brandner v. State Farm Mutual Automobile Insurance Company et al, No. 2:2018cv00982 - Document 207 (E.D. La. 2019)
Court Description: ORDER AND REASONS denying 162 Motion for Partial Summary Judgment on the Issue of Medical Causation. Signed by Judge Susie Morgan on 2/8/19. (sbs)
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Brandner v. State Farm Mutual Automobile Insurance Company et al Doc. 207 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A MICH AEL BRAN DN ER, J R., Plain tiff CIVIL D OCKET VERSU S N O. 18 -9 8 2 STATE FARM MU TU AL AU TOMOBILE IN SU RAN CE COMPAN Y, ET AL., D e fe n d an ts SECTION : “E” ( 4 ) ORD ER AN D REAS ON S Before the Court is a Motion for Partial Sum m ary J udgm ent on the Issue of Causation filed by Plaintiff Michael Brandner. 1 Defendant State Farm Mutual Autom obile Insurance Com pany (“State Farm ”) opposes the m otion. 2 Plaintiff filed a reply. 3 For the following reasons, the Motion for Partial Summ ary J udgm ent is D EN IED . FACTU AL & PROCED U RAL BACKGROU N D This case arises out of a m otor vehicle accident that occurred on August 25, 20 16. 4 Plaintiff Michael Brandner alleges he and his children were stopped in a lane of travel on I-10 in J efferson Parish when Defen dant Mirna Velasquez struck their vehicle from behind. 5 The parties have stipulated that Defendant Velasquez was 10 0 % at fault for the collision. 6 Plaintiff’s rem aining claim is against State Farm in its capacity as his prim ary uninsured m otorist coverage carrier. 7 1 R. Doc. 162. R. Doc. 176. 3 R. Doc. 192. 4 R. Doc. 1-4 at 1. 5 Id. at 3. 6 R. Doc. 199. 7 Plaintiff’s claim s brought on behalf of his m inor children have been resolved. Plaintiff’s claim s against Defendant Velasquez and Defendant Nautilus Insurance Com pany have been dism issed. R. Doc. 199. 2 1 Dockets.Justia.com On Decem ber 24, 20 18, Plaintiff m oved for sum m ary judgm ent on the issue of m edical causation. 8 Plaintiff contends there are no m aterial facts in dispute with respect to whether the injuries to his neck (cervical spine), back (lum bar spine), left shoulder, and right elbow were caused and/ or aggravated by the August 25, 20 16 motor vehicle accident because six treating physicians and the IME expert hired by State Farm all conclude the m otor vehicle accident m ore probably than not caused a new injury or aggravated an old injury. 9 State Farm argues there are m aterial facts in dispute with respect to the causation of Plaintiff’s injuries because the doctors’ conclusions are conditioned upon Plaintiff’s reports of m edical history and pain. State Farm highlights that Plaintiff had pre-existing injuries, was involved in other accidents after the August 25, 20 16 incident, and did not provide accurate reports of pain to the doctors. 10 LEGAL STAN D ARD Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”11 “An issue is m aterial if its resolution could affect the outcom e of the action.”12 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrain[s] from m aking credibility determ inations or weighing the eviden ce.”13 All reasonable inferences are drawn in favor of the non-m oving party. 14 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost 8 R. Doc. 162. R. Docs. 162; 192. 10 R. Doc. 176. 11 F ED . R. CIV. P. 56; see also Celotex, 477 U.S. at 322– 23. 12 DIR ECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 13 Delta & Pine Land Co. v . N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 – 99 (5th Cir. 20 0 8); see also Reeves v. Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 14 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 9 2 favorable to the non-m oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 15 “[A] party seeking sum m ary judgm ent always bears the initial responsibility of inform ing the district court of the basis for its m otion, and identifying those portions of [the record] which it believes dem onstrate the absence of a genuine issue of m aterial fact.” To satisfy Rule 56’s burden of production, the m oving party m ust do one of two things: “the m oving party m ay subm it affirm ative evidence that negates an essential elem ent of the nonm oving party’s claim ” or “the m oving party m ay dem onstrate to the Court that the nonm oving party’s eviden ce is insufficient to establish an essen tial elem ent of the nonm oving party’s claim .” If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the non-m oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 16 If the dispositive issue is one on which the non-m oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative evidence that negates an essential elem ent of the non-m ovant’s claim , or (2) affirm atively dem onstrating that there is no eviden ce in the record to establish an essential elem ent of the non-m ovant’s claim . 17 If the m ovant fails to affirm atively show the absence of evidence in the record, its m otion for sum m ary judgm ent m ust be denied. 18 Thus, the non-m oving party m ay defeat a m otion for 15 Hibernia N at. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citing Am oco Prod. Co. v. Horw ell En ergy , Inc., 969 F.2d 146, 147– 48 (5th Cir. 1992)). 16 Celotex, 477 U.S. at 322– 24. 17 Id. at 331– 32 (Bren nan, J ., dissentin g). 18 See id. at 332. 3 sum m ary judgm ent by “calling the Court’s attention to supporting evidence already in the record that was overlooked or ignored by the m oving party.” 19 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence. The party opposing sum m ary judgm ent is required to identify specific evidence in the record and to articulate the precise m anner in which that eviden ce supports his or her claim . ‘Rule 56 does not im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”20 LAW AN D AN ALYSIS Under Louisiana law, a Plaintiff in a personal injury lawsuit m ust prove by a preponderance of the eviden ce the causal relationship between the injury sustained an d the accident which caused the injury. 21 To dem onstrate the causal relationship between the accident and the subsequent injury, a plaintiff m ust prove through m edical testim ony that it is m ore probable than not that the subsequent injuries were caused by the accident. 22 I. D o cto rs ’ D e p o s itio n Te s tim o n y an d Exp e rt Re p o rts Plaintiff’s statem ent of uncontested m aterial 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 dem onstrate it is undisputed that it is m ore probable than not that the injuries to his neck (cervical spine), back (lum bar spine), left 19 Id. at 332– 33. The burden would then shift back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the non-m ovant. Once attacked, “the burden of production shifts to the non m oving party, who m ust either (1) rehabilitate the evidence attacked in the m ovin g party’s papers, (2) produce additional evidence showin g the existence of a genuin e issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explain in g why further discovery is necessary as provided in Rule 56(f).” Id. at 332– 33, 333 n .3. 20 Ragas v. Tenn . Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citin g Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) an d quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 90 9, 915– 16 & n .7 (5th Cir. 1992)). 21 Maranto v. Goody ear Tire & Rubber Co., 94-260 3 (La. 2/ 20 / 95); 650 So. 2d 757, 759. 22 Id. 4 shoulder, and right elbow were caused by the August 25, 20 16 m otor vehicle accident. 23 State Farm adm its Plaintiff accurately quoted the deposition testim ony and expert report. 24 However, State Farm denies that the opinions establish Plaintiff’s injuries were caused by the subject accident as a m atter of fact. State Farm points out that Plaintiff quotes only parts of the physicians’ deposition testim ony regarding causation and thus paints an in com plete picture of the doctors’ opinions on causation. State Farm also argues the doctors’ conclusions are prem ised upon Plaintiff’ providing an accurate self-report of pain and m edical history and thus do not establish causation as a m atter of fact. A. D r. Ch a rle s Sch lo s s e r Plaintiff’s statem ent of uncontested m aterial quotes Dr. Schlosser’s deposition as follows: Q: Doctor, based upon your exam ination, based upon the procedures you perform ed, based upon the inform ation you have regarding Mr. Brandner and the treatm ent that you provided him in the years 20 11, 20 14, seeing him for this particular accident, the im aging studies that's in the file, Dr. Lonseth's records, Dr. Lonseth's exam inations, can you say it's m ore probable than not that the autom obile accident of August 20 16, exacerbated any of Mr. Brandner's cervical injuries? A: Yes. Q: Doctor, can you say it's m ore probable than not that the autom obile accident of August 20 16, aggravated any of Mr. Brandner's lum bar 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. 23 R. Docs. 162; 192. R. Doc. 196. 25 R. Doc. 162-5 at 2-3. 24 5 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. D r. Fre d D e Fran ce s ch Plaintiff’s statem ent of uncontested m aterial quotes Dr. DeFrancesch’s deposition as follows: Q: Let's talk about the second paragraph, just so we're clear? A: Sure. It appears m ore probable than not in m y professional m edical opinion as a board-certified practitioner of Physical Medicine Rehabilitation, Pain an d Spin al Cord Injury Medicine, that his cervical and lum bar facet syndrom es are related to the accident occurring August 25th, 20 15. Q: So, Doctor, here's m y very pointed question to you. Doctor, can you say that it's m ore probable than not that the actual cervical injuries that Mr. Brandner com plained of as a result of the August 25th, 20 16 is – is directly related to that autom obile accident? A: So, the cervical issues certainly, m ore likely than not. Q: Doctor, can you say it's m ore probable than not that the autom obile accident of August 25th, 20 16 aggravated and/ or exacerbated any prior lum bar juries that he m ay 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-m ediated 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 com plaints that you treated him for and the need for future treatm ent and there’s a traum a that’s the key issue, would pre-traum a history be a significant part of your determ ination of etiology? A: I m ean, it can be helpful. Q: If Mr. Brandner treated for low-back pain for an extended period of tim e prior to the car accident, would that be an im portant 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 im portant, yes. 28 26 R. Doc. 196-11 at 9. R. Doc. 162-6 at 2-4. 28 R. Doc. 196-12 at 4-5. 27 6 C. D r. Mich ae l H ayd e l Plaintiff’s statem ent of uncontested m aterial quotes Dr. Haydel’s deposition as follows: Q: Doctor, I'm going to be a little m ore general. Doctor, can you say it is m ore probable than not that the injuries Mr. Brandner presented to you with for his cervical spine are directly related to the August 25th, 20 16 autom obile accident? A: More probably than not, correct Q: Doctor, can you say it is m ore probable than not that the injuries that Mr. Brandner presented to you with of the lum bar spine were aggravate by the autom obile accident of August 25th, 20 16? A: More probably than not they were aggravated, but they were also increased in the injury. Q: Doctor, would you say it is m ore probable than not that the autom obile accident of August 25th, 20 0 6 caused the actual com plaints and sym ptom s 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 sustain ed. Q: Doctor, can you say it is m ore probable than not that the autom obile accident of August 25th, 20 16, aggravated any preexisting epicondylitis injury to his right elbow? A: More probably than not the accident he sustained, the rear-en d collision, is the result of the aggravation to the right elbow. However, there was significant ligam ent dam age 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 cause [his] findings to be inaccurate. 30 D. D r. W illiam Ju n iu s Plaintiff’s statem ent of uncontested m aterial quotes Dr. J unius’ deposition as follows: Q: Let's go with the first one, Doctor. Can you say it's m ore probable than not that the surgery that you perform ed on the actual labral tear is directly related to the autom obile accident of August 20 15? A: Yes, that is m y opinion 29 30 R. Doc. 162-7 at 2-4. R. Doc. 196-8 at 14. 7 Q: Doctor, can you say it's m ore probable than not that the actual AC joint surgery that you're going to perform in Decem ber of 20 17 is directly related to the August 20 16 autom obile accident? A: Yes. Q: Doctor, can you say it's m ore probable than not that the actual m edical treatm ent and the PRP shots that you've given Mr. Michael Brandner regarding his m edial epicondylitis or com m on flexor injuries are directly related to the autom obile accident of August 20 16? A: Yes. Q: Doctor, can you say it's m ore probable than not that the surgery that you recom m en d to fix either the 15 m illim eter or 21 m illim eter tear that we now see on the new MRI that wasn't present on the original MRI is directly related to the actual autom obile accident of August 20 16? A: Yes. Q: Doctor, can you say it's m ore probable than not that the actual injury to the AC joint/ the arthritic changes that we talked about earlier was aggravated by the autom obile accident of August 20 16? A: Yes. Q: Doctor, is it fair to say that you do not believe– or is it fair to say that it's m ore probable than not that you do not believe that the actual ATV accident played a role in any of his shoulder injuries? A: So, m y opinion on the ATV accident and the shoulder injury is that I don't think that the ATV accident caused his labral tear. He did have som e positive findings prior to the ATV accident that were consistent with a labral tear, but I was still in the process of diagnosing him . So, I think that it does m ake things a little bit m ore difficult. But when he did present to m e, it was strictly for his elbow and his forearm . He had a lot of swelling, a lot of bruising around there. I forgot the exact m echanism that he explained to m e, but he did not com plain of any shoulder pain at that tim e when he called m e up and said m y elbow is really hurting m e, can you see m e. And he also did have som e findings prior to that which were con sistent with a labral injury as well. So that is m y reasoning why I don't think that the ATV accident caused his labral tear. That's why I think that the m otor vehicle collision caused his labral tear. Now, could it have irritated his shoulder? It could have. But it didn't, because he didn't com plain of that to m e. So that's the reasoning for m y opinion. 31 State Farm points out that Dr. J unius’s testim ony quoted above reveals inconsistencies regarding his opinion on whether Plaintiff’s labral tear was caused by the subject autom obile accident or a subsequent UTV accident. State Farm points out that Dr. J unius also testified as follows: 31 R. Doc. 162-8 at 2-5, 7-8 . 8 Q: So your opinions regarding m edical causation are– you’re relying on Mr. Brandner to give accurate self reports to you in regards to what pain he experienced after this ATV accident? A: It’s not specifically—yes, I do rely on his subjective description and com plaints and everything else, but I also look at objective findings. It’s not strictly subjective. Q: Doctor, your m edical causation opinion is based upon Mr. Brandner’s self-reports to you of onset of pain subsequent to an autom obile accident. A: Yes. .... Q: So you’re relying on his self reports of pain subsequent to the autom obile accident? A: Yes 32 E. D r. Eric Lo n s e th Plaintiff’s statem ent of uncontested m aterial quotes Dr. Lonseth’s deposition as follows: Q: That's okay. Doctor, can you say it's m ore probable than not that the autom obile accident of August 25th, 20 16 necessitated the actual procedures that you perform ed on the cervical spine? A: Yes. Q: Doctor, can you say it's m ore probable than not that the autom obile accident of August 25th, 20 16 caused new injuries to the lum bar spine? A: Yes. Q: Doctor, can you say it's m ore probable than not that the autom obile accident of August 25th, 20 16 aggravated preexisting con ditions of Mr. Brandner's lum bar spine? A: Yes. Q: Doctor, can you say it's m ore probable than not that the actual procedures you perform ed on Mr. Brandner's lum bar spine are directly related to the autom obile accident of August 25th, 20 16? A: Yes. 33 State Farm points out that Dr. Lonseth also testified as follows: Q: What is the im portance of taking a history from a patient? A: A history helps find out what I should be treating. What m ay be the cause of the pain. What m ay be som e of the com orbidities. What are som e things that m ay have responded in the past. What are som e of the risks I should look out for. And have a better overall understanding of the patient. 32 33 R. Doc. 196-7 at 134-35. R. Doc. 162-9 at 2-4. 9 Q: In this context, the history – in the legal context is it im portant to m ake a determ ination regarding m edical causation? A: Yes. Q: And if there’s not an accurate an com plete history provided to you it would cause any opinions regarding m edical causation to also be inaccurate? A: No. I– I would not say that. We’ll – we’ll stop speaking about gen eralities and we’ll– we’ll get m ore into specifics. Q: So you don’t believe that, that an inaccurate history would—would cause your opinions to be inaccurate? A: Well, if we’re going to be speaking about inaccuracies I’ll m ake it m ore specific. Inaccurate could m ean m any things. So if the date of an accident being off by a day, you know, som ebody having neglected to m ention the toe pain in addition to back pain, you know, having—having had back pain that resolved a year, two years ago and didn’t have it im m ediately before the accident, not m entioning, you know, they have abdom inal pain with ibuprofen. I m ean, these are all things that if not included in the record you can label it, quote, inaccurate. But they don’t negate—the assessm en t that I m ake. So “inaccurate” is a very vague term . Q: if a person doesn’t report the type of treatm ent they receive to the area of their body that they’re claim ing could be in jured in a traum atic event, if they don’t report that to you that would cause your opinion regarding m edical causation in regards to the injuries being claim s to be inaccurate? A: Again, we’re speakin g very vague and general. I’d like to get m ore specific. But in this case, in speaking about him , in general, I know he had back pain before that was not brought up on the initial visit and that he said that he— that it resolved, I’m not sure how m any years, before the accident. And that contributes to m y assessm ent but that does not negate, you know, the assessm ent that I m ake. Q: So he reported to you that his low back pain had resolved years before the accident? I think he had – the pain resolved – in looking at your records, the pain resolved – A: Right. Q: —a num ber of years ago? A: Correct. Q: So that’s what he reported to you? A: Correct. 34 F. D r. Eve re tt Ro be rt Plaintiff’s statem ent of uncontested m aterial quotes Dr. Robert’s deposition as follows: 34 R. Doc. 196-13 at 4-7. 10 Q. Now, Doctor, you've heard all these questions that these fin e lawyers asked you today, you reviewed all these film s for us today, you reviewed the m edical records again today, you've taken your own personal history, you perform ed your own physical exam inations. Can you say that it's m ore probable than not that the autom obile accident of August 25, 20 16, aggravated any pre-existing cervical issues Michael Brandner m ay have had that were depicted on any of the MRIs that these gentlem en talked about today? A. Oh, yeah. Do I think -- you know he had -- he probably had degenerative changes in his cervical spine prior. Q. Doctor, do you say it's m ore probable than not that the autom obile accident of August 25, 20 16, aggravated any of the low-back pre-existing findings on either X-rays or MRIs that we talked about today? A. Yes. Q. Doctor, the treatm ent that Mr. Brandner has received from Dr. Lonceth where he has undergone m ultiple ESIs and m ultiple rhizotom ies, would that be the kind of conservative treatm ent that you would offer to Mr. Brandner based upon your physical exam ination? A. Not just the physical exam ination. Due to his com plaints, MRI and physical exam in ation com bined. Q. Got you. Doctor, the actual radicular pain that Mr. Brandner noted to you that actually has gotten som ewhat better, would you say that that's m ore probably than not related to the autom obile accident of August 25th, 20 16? A. Yes. 35 State Farm points out that Dr. Robert testified he relies on a patient’s self-reports of pain in m aking a determ ination of m edical causation. 36 G. D r. Ralp h Katz Plaintiff’s statem ent of uncontested m aterial quotes Dr. Katz’s expert report as follows: Q: Please advise of your diagnosis regarding any issues or conditions Mr. Brandner claim ed were caused by the alleged accident. Further advise whether any such injuries or conditions were actually caused by the alleged or they are the result of preexisting conditions, subsequent accidents, and/ or have a cause other than the accident? A: With respect to his cervical spin e, he is experiencing posterior cervical pain, predom inantly with exten sion. The MRI I reviewed from August 31, 20 16, which was shortly after the accident, dem onstrates preexisting m ultilevel degenerative spondylolytic changes. This includes degen erative 35 36 R. Doc. 162-10 at 2-4. R. Doc. 196-2 at 17-18 . 11 disk space narrowing with desiccation and facet arthrosis. There are also disk osteophytes leading to som e neural foram inal narrowing. Based on the fact that he had no com plaints of cervical pain prior to the accident of August 25, 20 16, and subsequently developed posterior neck pain with som e radicular sym ptom s after, I would state based on history that he experienced an aggravation of a previously asym ptom atic cervical condition leading to neck pain, prim arily from the facet joints, and som e radicular sym ptom s in the right arm for which he had an epidural and the sym ptom s have resolved. He is currently asym ptom atic with respect to any radicular sym ptom s, but still experiencing posterior neck pain. On exam ination he has axial neck pain with extension, consistent with facet-oriented type pain. As to any other aggravations or causes of sym ptom s in the neck after the August 25, 20 16 accident, he den ies experiencing any pain from the other 2 accidents which he noted to m e today. Q: What is the etiology of the diagnosed in juries or conditions? A: In m y opinion, I believe he sustained an aggravation of a previously asym ptom atic condition in his cervical and lum bar spine. This was m ainly issues with respect to the facet joints. Early on he had som e radicular sym ptom s, which have resolved. With respect to the right elbow, and the history provided to m e, I believe that he had a preexisting tendinitis in the elbow years ago, which was asym ptom atic, but based on the new MRI clearly there was a traum atic event in which he had som e detachm ent of the com m on flexor group. He did have 2 other subsequent accidents, but he denies having any injuries to the right elbow. Based on this inform ation, unless other inform ation is provided, I would state that the right elbow pain was a result of the August 25, 20 16 accident as per Mr. Brandners history. As for the left shoulder, he has had no prior injuries to the left shoulder. Based on the com plaints of pain at the tim e of the accident in the left shoulder, I believe that he was correctly diagnosed with a posterior labral tear. He subsequently was also diagnosed with AC arthrosis. I believe the accident possibly aggravated a preexisting condition or caused the posterior labral tear. Based on his report that he was asym ptom atic prior to the accident. However, with respect to the other 2 accidents, he states that he did not have any injuries from those 2 other accidents. But, with the rollover accident onto the left forearm and subsequently, injury to the left forearm , there is a possibility that could have caused som e injury to his neck and shoulder, however, again he said it did not. 37 State Farm points out that Dr. Katz based his opinion on Plaintiff’s m edical history and self-reports of pain. 38 State Farm highlights the portion of Dr. Katz’s report indicating 37 38 R. Doc. 162-11 at 2-3. Id. 12 “there is a possibility that [the UTV accident] could have caused som e injury to his neck and shoulder.”39 The deposition testim ony and expert report excerpts quoted by Plaintiff do not provide the com plete picture regarding the experts’ opinions on causation and do not dem onstrate there is n o disputed issue of m aterial fact. State Farm highlights Dr. Katz’s report that the MRI taken shortly after the August 25, 20 16 accident showed Plaintiff suffered preexisting degenerative changes in his cervical spine. 40 Dr. LeBlanc testified that she recalled treating Plaintiff’s neck and back in 20 15. 41 State Farm argues the presen ce of degenerative changes an d the fact that Plaintiff was treated by a chiropractor for neck an d back pain prior to the accident creates a disputed issue of fact as to whether the accident caused his current com plaints. Additionally, State Farm highlights Plaintiff’s treatm ent by Dr. Schlosser for lower back pain in J uly of 20 11 and April of 20 14. State Farm points to Dr. Katz’s report saying the MRI im ages taken of Plaintiff’s lum bar spine before and after the accident are “essentially the sam e.”42 Sim ilarly, State Farm points out that Plaintiff testified he did not experience issues with his right elbow after 20 12 because his tendinosis went away 43 but that Dr. LeBlanc recalled Plaintiff had elbow pain or som e kind of elbow issue when he visited her in 20 13. 44 Genuine issues of disputed fact exist with respect to m edical causation. State Farm is entitled to question the doctors to determ ine whether their opinions would change if they had additional or contradictory 39 Id. R. Doc. 196-4 at 19. 41 R. Doc. 196-6 at 4-6. 42 R. Doc. 196-4 at 19-20 . 43 R. Doc. 196-5 at 8. 44 R. Doc. 196-6 at 7. 40 13 inform ation about Plaintiff’s m edical history and treatm ent prior to the accident. This is standard cross-exam ination in a personal injury case. II. Exp e rt Op in io n s Are N o t Facts Further, State Farm argues the opinions of these experts are not facts an d, as a result, cannot dem onstrate there is no disputed issue of m aterial fact with respect to the causation of Plaintiff’s injuries. The U.S. Suprem e Court has upheld the denial of a sum m ary judgm ent m otion when the eviden ce before the district court consisted solely of expert opin ions, m uch as in this case. In Sartor v. Arkansas N atural Gas Corp., the only eviden ce in support of the m otion for sum mary judgm ent was the opinion testim ony of experts, who all agreed with the plaintiff. 45 Nevertheless, the district court, the Fifth Circuit, an d the U.S. Suprem e Court denied sum m ary judgm ent. The Suprem e Court em phasized that “opin ions, even if entitled to som e weight, have no such conclusive force that there is error of law in refusing to follow them .”46 Rather, “it is for the jury to decide whether any, and if any what, weight is to be given to the testim ony.”47 State Farm is correct that the opinion testim ony offered by Plaintff does not dem onstrate there are no m aterial facts in dispute with respect to the causation of Plaintiff’s injuries. III. Me d ical Cau s atio n Sh o u ld Be Le ft to th e Ju ry Finally, State Farm argues the question of causation is a factual determ ination that should be left to the jury. The Louisiana Suprem e Court agrees and has concluded, “causation is an issue of fact that is generally decided at the trial on the m erits.” 48 Sim ilarly, another section of this Court has concluded that, even when the parties 45 Sartor v. Ark. N at. Gas Corp., 321 U.S. 620 , 627-28 (1944). Id. at 628 . 47 Id. at 627. 48 Estate of Adam s v. Hom e Health Care of La., 0 0 -2492, p. 1 (La. 12/ 15/ 20 0 0 ); 775 S0 .2d 10 64, 10 64. 46 14 stipulate the defendant is liable, “causation is a determ ination pregnant with factual questions.”49 As a result, Plaintiff is not entitled to sum m ary judgm ent on the issue of whether the injuries to his neck, back, right elbow, and left shoulder were caused by the August 25, 20 16 m otor vehicle accident. CON CLU SION Disputed issues of m aterial fact preclude sum m ary judgm ent on the issue of whether Plaintiff’s neck, back, right elbow, and left shoulder injuries were caused by the August 25, 20 16 m otor vehicle accident. Accordingly; IT IS ORD ERED that the Motion for Partial Sum m ary J udgm ent on the Issue of Causation 50 is D EN IED . N e w Orle a n s , Lo u is ian a, th is 8 th d ay o f Fe bru ary, 2 0 19 . ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 49 Miller v. Mr. B’s Bistro, No. 0 4-3271, 20 0 5 WL 20 36780 , at *3 (E.D. La. Aug. 3, 20 0 5); see also Berry v. Roberson, No. 13-145, 20 14 WL 4373265 (E.D. La. Sept. 3, 20 14). 50 R. Doc. 162. 15
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