Kauffman-Stachowiak v. Omni Hotels Management Corporation
Filing
44
ORDER DENYING 34 MOTION FOR SUMMARY JUDGMENT by Hon. William H. Orrick. (jmdS, COURT STAFF) (Filed on 8/15/2016)
1
2
3
4
UNITED STATES DISTRICT COURT
5
NORTHERN DISTRICT OF CALIFORNIA
6
7
WENDY KAUFFMAN-STACHOWIAK,
Case No. 15-cv-05186-WHO
Plaintiff,
8
ORDER DENYING MOTION FOR
SUMMARY JUDGMENT
v.
9
10
Defendant.
11
United States District Court
Northern District of California
Re: Dkt. No. 34
OMNI HOTELS MANAGEMENT
CORPORATION,
12
INTRODUCTION
13
Plaintiff Wendy Kauffman-Stachowiak brings this negligence action against defendant
14
Omni Hotels Management Corporation (“Omni”), alleging that on January 29, 2013, an Omni
15
bellman allowed a car door to hit her face as she entered the backseat. She asserts that the impact
16
gave her a bloody lip, a headache, and nausea, and that it exacerbated her preexisting spinal
17
problems, requiring her to undergo cervical fusion surgery on June 4, 2013. Omni moves for
18
summary judgment. It argues that Kauffman-Stachowiak has failed to produce sufficient evidence
19
for a jury to reasonably conclude either (1) that an Omni bellman in fact allowed a car door to hit
20
her face, or (2) that the incident in fact exacerbated her preexisting spinal problems. Omni’s
21
arguments highlight several reasons to question Kauffman-Stachowiak’s story, and they may
22
persuade a jury to find in Omni’s favor. On summary judgment, however, I do not make
23
credibility determinations or weigh competing evidence. Kauffman-Stachowiak has presented
24
enough evidence to withstand summary judgment. Omni’s motion is DENIED.
25
26
BACKGROUND
I.
FACTUAL BACKGROUND
27
A.
28
Kauffman-Stachowiak and her husband, David Stachowiak, were guests at the Omni San
January 29, 2013 Incident
1
Francisco Hotel (the “Omni”), located at 500 California Street, from January 26, 2013 to January
2
29, 2013. Kauffman-Stachowiak Depo. at 139-40 (Dardine Decl. Ex. A, Dkt. No. 38-1; Rector
3
Decl. Ex. 1, Dkt. No. 35); Kauffman-Stachowiak Decl. ¶ 2 (Dkt. No. 38-2).
Kauffman-Stachowiak left the Omni to get to the airport at approximately 8:30 a.m. on
4
5
January 29, 2013. Kauffman-Stachowiak Depo. at 147-48, 151. Mr. Stachowiak was remaining
6
in San Francisco for business and was not with her at the time. Id. at 139-40. A uniformed Omni
7
bellman opened the front door of the hotel for Kauffman-Stachowiak as she exited the building,
8
and she asked the bellman how to get a taxi to the airport.1 Id. at 149-51; Kauffman-Stachowiak
9
Decl. ¶ 4. The bellman advised her to take a hotel car instead of a taxi. Kauffman-Stachowiak
Depo. at 151. He told her, “You come with me,” grabbed her luggage, and walked her to a “black
11
United States District Court
Northern District of California
10
Lincoln Town Car, like a Lincoln Town Car” located approximately two car lengths from the front
12
door of the hotel. Id. at 152-53.
13
While the car’s driver loaded Kauffman-Stachowiak’s luggage into the trunk, the bellman
14
held the car’s rear passenger door for her. Id. at 164-65. She stepped off the curb and placed her
15
left foot and shoulder into the car, but as she did so, the car door “came and smashed into [her]
16
face,” causing her head to “sna[p] back” and sending her “kind of flying” into the back seat. Id. at
17
164-65; see also id. at 168-69 (stating that the car door hit her in the “mouth area,” driving her
18
“tooth . . . through [her] lip” and pushing her to “the middle of the back seat”).
19
In a declaration submitted in opposition to Omni’s motion for summary judgment,
20
Kauffman-Stachowiak asserts that the bellman either (1) “released [the car door] before [she] was
21
fully seated in the vehicle,” or (2) “closed [the car door] prematurely.” Kauffman-Stachowiak
22
Decl. ¶ 3. At her deposition, she described the bellman’s alleged negligence in slightly different
23
24
25
26
27
28
1
At her deposition, Omni showed Kauffman-Stachowiak photographs of all Omni San Francisco
Hotel bellmen and doormen on duty on January 29, 2013, together with photographs of Omni
employees from other locations, and asked her to identify the bellman from the January 29, 2013
incident. See Simonsen Decl. ¶¶ 2-4, Exs. 1-2 (Rector Decl. Ex. 12, Dkt. No. 35); KauffmanStachowiak Depo. at 157-161. Kauffman-Stachowiak wrote “no” on every picture of the San
Francisco employees and narrowed the field down to three individuals, none of whom have ever
worked for Omni in San Francisco. See Simonsen Decl. ¶¶ 2-4, Exs. 1-2. She testified that she
was “fairly sure” that the people she eliminated were not the bellman from the incident.
Kauffman-Stachowiak Depo. at 157, 161.
2
1
terms:
Q: And then, when you say [the car door] slammed into you, . . . did
the bellman let go of the handle and slam it into you?
2
3
A: No.
4
Q: Okay. When you say he slammed it into you, how did that
happen?
5
A: He let go of the door, and the door, just due to gravity because
you are on a hill, came smacking into my head.
6
7
8
Q: Okay. So he let go of the door, gravity pulled it, and it . . . hit you
in the head?
9
A: Yes.
10
Kauffman-Stachowiak Depo. at 166.
Q: And you put your left leg and left shoulder into the Town Car,
correct?
United States District Court
Northern District of California
11
12
A: Yes . . .
13
Q: And the bellman had his hand on the door at that time, correct?
14
A: When I first got in, yes.
15
16
Q: And then he let it go and gravity brought the door down towards
you, correct?
17
A: Yes.
18
Q: And he did not slam the door, it was just gravity, correct?
19
A: As I recall, yes.
20
21
22
23
24
25
26
27
28
Id. at 218.
Kauffman-Stachowiak states that immediately following the incident somebody (either the
driver or the bellman) asked her if she was okay, and the bellman ran back to the hotel to get ice.
Id. at 169-70. The car then left for the airport. Id. at 174. She applied the ice to her lip during the
trip and had a “horrible headache” and nausea, but she did not seek medical attention. Id. at 175.
At the airport, Kauffman-Stachowiak spoke with her husband on the phone and asked him
to report the incident to the hotel. Id. at 176. She recalls that she told him that she had a “violent
headache” and that she was “already sounding kind of funny . . . because [she] had a very big fat
lip.” Id. at 176-77; see also David Stachowiak Depo. at 10-11 (Dardine Decl. Ex. B, Dkt. No. 383
1
1). Mr. Stachowiak was in a business meeting at the Omni when he received the call. David
2
Stachowiak Depo. at 9-10. He states that he went to the front door of the hotel and spoke with
3
“the head doorman in the outfit, [the one] that kind of wears the bigger outfit,” to find out what
4
had happened. Id. at 14. The head doorman allegedly “acknowledged what had happened” and
5
confirmed that “they had given [Kauffman-Stachowiak] a bag of ice for lip.” Id. at 14-15. When
6
asked to clarify, Mr. Stachowiak stated at his deposition that the “head doorman” he spoke with
7
was the bellman who had held the car door for his wife.2 Id.
Mr. Stachowiak subsequently went to the front desk of the hotel and reported the incident
8
to a “gentleman from the back.” Id. at 20-21. John Marple, the former Front Office Supervisor at
10
the Omni, states that he spoke with Mr. Stachowiak on January 29, 2013, and that Mr. Stachowiak
11
United States District Court
Northern District of California
9
told me that his wife hit her head getting into a Town Car on her
way to the airport that morning. Mr. Stachowiak was nonchalant
and said his wife was fine, no one from Omni was at fault for the
accident, but he was reporting it in case there had been other
incidents.
12
13
14
15
16
17
Marple Decl. ¶¶ 1, 3-4 (Rector Decl. Ex. 8, Dkt. No. 35). Marple forwarded Mr. Stachowiak’s
report to Paul Kesinger, Director of Loss Prevision at the Omni, who followed up with Mr.
Stachowiak on the day of the incident and again the next day. Id. ¶ 5. In an email dated June 17,
2013, Kesinger describes his communications with Mr. Stachowiak as follows:
22
I remember speaking to the husband, Dave, on the afternoon of the
incident, and he admitted that the incident, a bump to the head, was
due to his wife being in a hurry when entering the vehicle. Dave was
very casual about the situation, and did not ask for any follow up. I
talked to him the next day to see how his wife, Wendy, was feeling,
and he said that his wife was feeling much better. She just had a
bump on her head. He declined to offer any more details about the
issue, and said that a formal report was not necessary. He told me at
that time that the hotel and Town Car driver were not considered to
be at fault. He also said it was just a simple accident.
23
Rector Decl. Ex. 9 (Dkt. No. 35). At his deposition, Mr. Stachowiak denied having told any Omni
24
employee that “[his] wife was okay,” that “the accident was not the fault of [the hotel],” or that
25
“the incident was due to [his] wife being in a hurry.” David Stachowiak Depo. at 31-33.
18
19
20
21
26
2
27
28
At his deposition, Omni showed Mr. Stachowiak the same set of photographs of Omni
employees it had previously shown to Kauffman-Stachowiak. See David Stachowiak Depo. at 1719. Omni asked Mr. Stachowiak to identify the doorman he spoke with, and he selected one of the
same three individuals his wife had selected. See id.
4
Omni contends that “it is physically impossible for the incident to have occurred as
1
2
[Kauffman-Stachowiak] now claims.” Mot. at 9 (Dkt. No 34). Along with its motion for
3
summary judgment, Omni submits a declaration from Dr. Jay Mandell, a mechanical engineer
4
specializing in accident reconstruction, biomechanics, and mechanical design analysis. Mandell
5
Decl. ¶ 1 (Rector Decl. ¶ 1, Dkt. No. 35). Dr. Mandell examined the location of the Omni and the
6
rear passenger doors of three Lincoln Town Cars and concludes that “[t]he rear passenger door of
7
the Lincoln Town Car will not close by gravity alone on California Street in front of the Omni San
8
Francisco Hotel . . . In order to close, the Town Car must be given some external impetus.”3 Id. ¶¶
9
4-5. He also opines that
[a] person struck in the mouth by the closing rear passenger door
would not be thrown into the back seat of the vehicle as Ms.
Kauffman-Stachowiak testified. If she was struck in the mouth, Ms.
Kauffman-Stachowiak’s mouth must have been at the height of the
top edge of the door, about 4 feet, 9 inches above the pavement. At
that point, most of her head would have been above the level of the
edge of the roof of the car, i.e., the top of her head would have been
about 6-8 inches above the roof. Even if the impact force were great
enough to knock her over, her trajectory would cause her to hit her
head on the roof, which would prevent her from being thrown into
the back seat.
10
United States District Court
Northern District of California
11
12
13
14
15
16
17
18
19
Id. ¶ 7. Kauffman-Stachowiak submits no competing expert testimony. However, she points out
that Omni did not disclose Dr. Mandell as an expert witness until less than a week before it filed
its summary judgment motion, and that she has not yet had an opportunity to depose him. Oppo.
at 13-14 (Dkt. No. 38).
B.
20
Several weeks after the January 29, 2013 incident, on March 9, 2013, Kauffman-
21
22
23
24
25
26
Kauffman-Stachowiak’s Medical Treatment
Stachowiak went to the hospital because “[t]he evening before, . . . the pain [at the top of her left
shoulder] had been just increasing to the point where it was debilitating.” Kauffman-Stachowiak
Depo. at 190-93. She was given a cervical collar and referred to the emergency department, where
she saw Dr. Douglas Propp. Id. Dr. Propp’s notes from his examination state, “This 52-year-oldfemale had an injury 3 weeks ago where she struck her chin on top of a car door. Her head sprung
27
3
28
Videos of Dr. Mandell’s work with the Lincoln Town Cars have been posted to YouTube and
can be viewed at youtu.be/t0XNVJbsveI and youtu.be/bcqQ0YcgtTY. Mandell Decl. ¶ 5.
5
1
backwards and she’s had some persistent left shoulder discomfort.” Dardine Decl. Ex. D (Dkt. No
2
38-1). Dr. Propp prescribed Kauffman-Stachowiak some medications and advised her to visit Dr.
3
Steven Mardjetko, an orthopedic surgeon. Id.
4
Kauffman-Stachowiak saw Dr. Mardjetko on March 13, 2013. Dardine Decl. Ex. E (Dkt.
5
No. 38-1). Dr. Mardjetko wrote in his notes that Kauffman-Stachowiak “hit her chin on the top of
6
a car door” and “developed headaches and pain into her left shoulder soon thereafter.” Id. When
7
Kauffman-Stachowiak reported continuing pain at a follow-up visit on April 22, 2013, Dr.
8
Mardjetko referred her to Dr. Jerry Bauer. Dardine Decl. Ex. G (Dkt. No. 38-1). Kauffman-
9
Stachowiak saw Dr. Bauer on May 2, 2013. Dardine Decl. Ex. H (Dkt. No. 38-1). Dr. Bauer’s
notes state that Kauffman-Stachowiak has “radicular pain from her neck to her shoulder blade and
11
United States District Court
Northern District of California
10
down her left arm,” and that the pain began “in January 2013 [when she was] getting into a hotel
12
car [and] the door slammed against her face and her head jerked backwards.” Id.
13
On June 4, 2013, Kauffman-Stachowiak underwent cervical fusion surgery performed by
14
Drs. Mardjetko and Bauer. Dardine Decl. Exs. I, J (Dkt. No. 38-1). The doctors’ notes from the
15
surgery indicate that on the left side of Kauffman-Stachowiak’s back they observed a “partially
16
calcified” herniated disc, which they “dissected from the nerve and removed, thereby
17
decompressing the nerve root.” Dardine Decl. Ex. J at 135 of 149; see also Dardine Decl. Ex. I at
18
130 of 149. Stachowiak states that both doctors have informed her that “the need for [her] cervical
19
fusion surgery was directly related to the traumatic injury that occurred at the Omni San Francisco
20
Hotel on January 29, 2013.” Kauffman-Stachowiak Decl. ¶¶ 11-12.
21
Omni highlights that Kauffman-Stachowiak has a history of spine problems stretching
22
back to before the January 29, 2013 incident. Mot. at 2-4, 14-16; Reply at 6-7 (Dkt. No. 39). It
23
submits an expert declaration from neurosurgeon Dr. Bruce McCormack, who opines as follows:
27
4. To a reasonable degree of medical certainty, Ms. KauffmanStachowiak’s cervical spine conditions were neither caused nor
made worse by the car door incident she testified occurred in
January 2013. To a reasonable degree of medical certainty, Ms.
Kauffman-Stachowiak’s cervical surgery in June 2013 was not
necessitated in any sense by the car door incident she testified
occurred in January 2013.
28
5. [Ms. Kauffman-Stachowiak’s] medical records indicate she was
24
25
26
6
1
2
3
4
5
6
7
8
9
10
United States District Court
Northern District of California
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
receiving chiropractic treatment from Dr. Maggie Gable both before
and after her trip to San Francisco in January 2013. On November 1,
2012, Dr. Gable performed a clinical assessment and diagnosis of
Ms. Kauffman-Stachowiak. As part of that assessment and
diagnosis, Dr. Gable performed a Shoulder Depression test, a
Cervical Compression/Spurling’s test, and a Soto-Hall test on Ms.
Kauffman-Stachowiak. The Shoulder Depression test was positive
left, meaning Ms. Kauffman-Stachowiak experienced left-sided
radicular pain in November 2012 . . . The Soto-Hall test was also
positive, meaning Ms. Kauffman-Stachowiak experienced pain in
her lower neck and mid-spine in November 2012. Ms. KauffmanStachowiak complained of left-sided radicular pain in March 2013
as well. The tests Dr. Gable performed reveal and cross-confirm
that Ms. Kauffman-Stachowiak’s neck condition was symptomatic
roughly three months before the car door incident to which she
testified.
6. Dr. Gable’s medical records reveal she treated Ms. KauffmanStachowiak 12 times in November 2012, December 2012, and
January 2013. Ms. Kauffman-Stachowiak’s condition worsened on
December 4, 2012 and she reported to Dr. Gable her right upper
back has been very tender, tight, and painful for the past week. Ms.
Kauffman-Stachowiak reported she had stabilized by January 23,
2013 when her pain levels decreased and tension slowly decreased.
On January 25, 2013, Ms. Kauffman-Stachowiak reported to Dr.
Gable her pain levels have decreased and tension has slowly
decreased. Dr. Gable found she had hypomobility, increased tissue
tenderness, and end point tenderness at the C-4 to C-7 levels which
are the same levels on which Ms. Kauffman-Stachowiak eventually
had fusion surgery. Ms. Kauffman-Stachowiak received a cervical
spine adjustment that day.
7. Ms. Kauffman-Stachowiak testified she sought no medical
treatment in San Francisco the day of the accident. She testified she
sought no medical treatment in Chicago when she landed or any
time before March 9, 2013. Had Ms. Kauffman-Stachowiak
experienced an acute injury, such as a traumatically herniated disc,
the resultant pain would typically require prompt medical attention.
8. . . . After the San Francisco trip, Dr. Gable’s records reveal Ms.
Kauffman-Stachowiak saw her next on February 8, 2013. Ms.
Kauffman-Stachowiak reported that her pain levels and tension had
decreased. As with the day before her trip to San Francisco, Dr.
Gable found she had hypomobility, increased tissue tenderness, and
end point tenderness at the C-4 to C-7 levels which are the same
levels on which Ms. Kauffman-Stachowiak eventually had fusion
surgery. Ms. Kauffman-Stachowiak received a cervical spine
adjustment that day. Dr. Gable’s records do not indicate any
increased pain, worsening conditions, new problems, or any accident
or incident in San Francisco. If Ms. Kauffman-Stachowiak had
suffered an acute injury such as a herniated disc in San Francisco,
she would have had much worse symptoms on February 8, 2013.
9. Dr. Gable’s records reveal Ms. Kauffman-Stachowiak saw Dr.
Gable again on February 15, 2013, February 21, 2013, and March 1,
2013. As with her treatment the day before her trip to San Francisco,
7
1
2
3
4
Ms. Kauffman-Stachowiak reported her pain levels and tension had
decreased, Dr. Gable found she had hypomobility, increased tissue
tenderness, and end point tenderness at the C-4 to C-7 levels, and
Ms. Kauffman-Stachowiak received a cervical spine adjustment. Dr.
Gable’s records those days likewise do not indicate any increased
pain, worsening conditions, new problems, or any accident or
incident in San Francisco.
6
10. Dr. Gable’s records reveal Ms. Kauffman-Stachowiak saw Dr.
Gable on March 5. Ms. Kauffman-Stachowiak reported a major flare
up in her left shoulder and upper back area. There is no mention of
an accident or incident in San Francisco however.
7
[ . . .]
8
12. On March 9, 2013, Ms. Kauffman-Stachowiak’s neck was xrayed. Her treating physicians found no fracture or dislocation and
that the x-rays showed severe degenerative disc disease. I have
reviewed the x-rays as well and concur.
5
9
10
United States District Court
Northern District of California
11
12
13
14
15
16
17
18
19
20
21
22
23
24
13. On March 20, 2013, Ms. Kauffman-Stachowiak underwent a
MRI. Her treating physicians found the MRI confirmed there was no
fracture of dislocation and that Ms. Kauffman-Stachowiak
multilevel disc degeneration and spondylosis with multilevel disc
bulging. I have reviewed the MRI as well. There is no acute injury
noted and the MRI shows severe degenerative disc diseases as well
as a paracentral (bulging) disc at the C6-7 level.
14. On June 4, 2013, Ms. Kauffman-Stachowiak underwent surgery.
Her physicians’ post-operative diagnoses was extensive
degenerative disc disease. I have reviewed the surgical notes. They
confirm Ms. Kauffman-Stachowiak was suffering from degenerative
diseases and not any injury caused or made worse by the car door
incident to which she testified. The paracentral (bulging) disc was
partially calcified. That means it had been there for years, i.e., it
would be medically impossible to have suffered a herniated disc in
January 2013 and for it to have partially calcified by June 2013. In
addition, Ms. Kauffman-Stachowiak had bone growth between her
C5-6 and C6-7 disc spaces. Had there been a trauma sufficient to
cause a disc to rupture, the boney growth would also have fractured
or there would have been bruising and tearing of ligaments noted.
There is no mention of fractured or loose bone spurs by her
surgeons. There are no other indications of acute or traumatic injury
either.
McCormack Decl. ¶¶ 4-15 (Rector Decl. Ex. 2, Dkt. No. 35).
Kauffman-Stachowiak submits no competing expert testimony. She contends, however,
25
that the spinal problems for which she was receiving treatment before January 29, 2013 were
26
limited to “lower back discomfort and occasional shoulder tightness.” Kauffman-Stachowiak
27
Decl. ¶ 5. She states that before the incident, she had “never experienced radiating left arm pain or
28
numbness” and had “never experienced neck or shoulder pain that was so severe as to require
8
1
emergency department treatment.” Id. ¶¶ 5-6. She also asserts that Drs. Mardjetko and Bauer will
2
opine that the January 29, 2013 incident contributed to her need for cervical fusion surgery, but
3
that the earliest dates the doctors were available for depositions were August 15, 2016 (for Dr.
4
Mardjetko) and September 12, 2016 (for Dr. Bauer). Oppo. at 9-10, 14.
5
II.
PROCEDURAL BACKGROUND
6
Kauffman-Stachowiak filed her original complaint in the Superior Court of California for
7
the County of San Francisco on January 20, 2015 and her first amended complaint on October 9,
8
2015. Notice of Removal ¶¶ 4-5, Exs. A, B (Dkt. No. 1). The first amended complaint brings one
9
cause of action for negligence and alleges that on January 29, 2013,
10
United States District Court
Northern District of California
11
12
13
14
15
16
an unknown employee of [Omni] closed a vehicle door on
[Kauffman-Stachowiak] while she was attempting to sit in the
vehicle. Said employee negligently closed the door before [she] was
fully seated, causing the door to strike [her] in the head. The strike
to the head caused significant injury to [Kauffman-Stachowiak].
Notice of Removal Ex. B.
Omni removed the case to federal court on the basis of diversity jurisdiction on November
12, 2015. Notice of Removal ¶ 9. After fact discovery closed, it moved for summary judgment.
Dkt. No. 34. I heard argument from the parties on August 10, 2016. Dkt. No. 42.
LEGAL STANDARD
17
18
19
20
21
22
23
24
25
26
27
28
A party is entitled to summary judgment where it “shows that there is no genuine dispute
as to any material fact and [it] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
dispute is genuine if it could reasonably be resolved in favor of the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material where it could affect the
outcome of the case. Id.
The moving party has the initial burden of informing the court of the basis for its motion
and identifying those portions of the record that demonstrate the absence of a genuine dispute of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Once the movant has
made this showing, the burden shifts to the nonmoving party to identify specific evidence showing
that a factual issue remains for trial. Id. The nonmoving party may not rest on mere allegations or
denials from its pleadings, but must “cit[e] to particular parts of materials in the record”
9
1
demonstrating the presence of a factual dispute. Fed. R. Civ. P. 56(c)(1)(A). The nonmoving
2
party need not show that the issue will be conclusively resolved in its favor. See Anderson, 477
3
U.S. at 248-49. All that is required is the identification of sufficient evidence to create a genuine
4
dispute of material fact, thereby “requir[ing] a jury or judge to resolve the parties’ differing
5
versions of the truth at trial.” Id. (internal quotation marks omitted). If the nonmoving party
6
cannot produce such evidence, the movant “is entitled to . . . judgment as a matter of law because
7
the nonmoving party has failed to make a sufficient showing on an essential element of her case.”
8
Celotex, 477 U.S. at 323.
On summary judgment, the court draws all reasonable factual inferences in favor of the
10
nonmoving party. Anderson, 477 U.S. at 255. “Credibility determinations, the weighing of the
11
United States District Court
Northern District of California
9
evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a
12
judge.” Id. However, conclusory and speculative testimony does not raise a genuine dispute of
13
material fact and is insufficient to defeat summary judgment. See Thornhill Publ’g Co., Inc. v.
14
GTE Corp., 594 F.2d 730, 738-39 (9th Cir. 1979).
15
16
DISCUSSION
The elements of a cause of action for negligence under California are “(a) a legal duty to
17
use due care; (b) a breach of such legal duty; and (c) the breach as the proximate or legal cause of
18
the resulting injury.” Ladd v. Cty. of San Mateo, 12 Cal.4th 913, 917 (1996) (internal quotation
19
marks, alterations, and emphasis omitted). Omni contends that it is entitled to summary judgment
20
because Kauffman-Stachowiak has not presented sufficient evidence for a jury to reasonably
21
conclude either (1) that an Omni bellman in fact allowed a car door to hit her face, or (2) that the
22
incident in fact exacerbated her preexisting spinal problems.
23
Omni is not entitled to summary judgment. With respect to breach, Omni identifies
24
several reasons to question the veracity of Kauffman-Stachowiak’s story, but it has not shown that
25
a reasonable jury would be required to disbelieve her. Nor has it shown that the slight distinction
26
between her account of the mechanics of the January 29, 2013 incident at her deposition, and that
27
in her declaration, is sufficient to justify application of the sham affidavit rule. See Nelson v. City
28
of Davis, 571 F.3d 924, 928 (9th Cir. 2009) (holding that the sham affidavit rule does not preclude
10
1
a party from “elaborating upon, explaining or clarifying prior testimony elicited by opposing
2
counsel on deposition,” and that “minor inconsistencies that result from an honest discrepancy, a
3
mistake, or newly discovered evidence” do not justify striking a declaration). On summary
4
judgment, I do not make credibility determinations or weigh competing evidence. Kauffman-
5
Stachowiak has presented sufficient evidence for a jury to decide whether the January 29, 2013
6
incident occurred in the manner she claims it did.
7
With respect to causation, Omni does not dispute that, assuming that Kauffman-
8
Stachowiak’s account of the incident is accurate, Kauffman-Stachowiak suffered at least some
9
injury as a result (i.e., a bloody lip, a headache, and nausea). At best, then, Omni’s causation
argument would entitle it to partial summary judgment on the issue of whether Kauffman-
11
United States District Court
Northern District of California
10
Stachowiak could recover for the spinal problems she traces to the incident; the argument would
12
not entitle Omni to judgment in its favor.
13
Further, even assuming, without deciding, that a jury could not reasonably find that any of
14
Kauffman-Stachowiak’s spinal problems were caused by the incident based on the current record,
15
I agree with Kauffman-Stachowiak that summary judgment on the issue would be inappropriate
16
given the testimony she asserts Drs. Mardjetko and Bauer will give. See Jones v. Blanas, 393 F.3d
17
918, 930 (9th Cir. 2004) (stating that “summary judgment is disfavored where relevant evidence
18
remains to be discovered,” and that “summary judgment in the face of requests for additional
19
discovery is appropriate only where such discovery would be fruitless”) (internal quotation marks
20
omitted). Omni contends that the doctors will not be able to testify on causation because
21
Kauffman-Stachowiak did not produce Rule 26(a)(2)(B) reports for them. Reply at 11-15. Given
22
the absence of Rule 26(a)(2)(B) reports for the doctors, they will only be permitted to testify to
23
causation opinions formed during the course of treatment. See Goodman v. Staples The Office
24
Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011) (holding that “a treating physician is only
25
exempt from Rule 26(a)(2)(B)’s written report requirement to the extent that his opinions were
26
formed during the course of treatment”); Barnard v. Theobald, 532 F. Appx. 716, 718 (9th Cir.
27
2013) (plaintiff’s surgeon was “exempt from Rule 26(a)(2)(B)’s written report requirement
28
because his opinions ‘were formed during the course of treatment’”). Although Omni argues that
11
1
the doctors’ causation opinions, if they have any, were formed after the course of treatment or are
2
based exclusively on Kauffman-Stachowiak’s self-reporting, those facts have not been established.
3
Accordingly, because there are material facts in dispute concerning breach and causation, I
4
cannot grant Omni’s motion for summary judgment.
CONCLUSION
5
6
For the foregoing reasons, Omni’s motion for summary judgment is DENIED.
7
IT IS SO ORDERED.
8
9
10
Dated: August 15, 2016
______________________________________
WILLIAM H. ORRICK
United States District Judge
United States District Court
Northern District of California
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?