Leblanc v. Mr. Bults, Inc.
Filing
277
MEMORANDUM Opinion and Order Signed by the Honorable Ronald A. Guzman on 8/12/2019: For the reasons stated below, Plaintiff's motion for partial summary judgment 188 is denied, Defendant's cross-motion for summary judgment 237 is gra nted, and Defendant's motion to bar the testimony of Dr. Piva 238 is denied. Further, Plaintiff's motion to dismiss for lack of subject-matter jurisdiction 271 is denied. All other pending motions are denied as moot. Civil case terminated. [For further details see Statement]. Mailed notice(is, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Milton LeBlanc,
Plaintiff,
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v.
Mr. Bult’s, Inc.,
Defendant.
No. 15 C 6019
Judge Ronald A. Guzmàn
MEMORANDUM OPINION AND ORDER
For the reasons stated below, Plaintiff’s motion for partial summary judgment [188] is
denied, Defendant’s cross-motion for summary judgment [237] is granted, and Defendant’s
motion to bar the testimony of Dr. Piva [238] is denied. Further, Plaintiff’s motion to dismiss
for lack of subject-matter jurisdiction [271] is denied. All other pending motions are denied as
moot. Civil case terminated.
STATEMENT
I.
Plaintiff=s Motion to Dismiss for Lack of Subject-Matter Jurisdiction
Plaintiff=s motion to dismiss the case for lack of subject-matter jurisdiction is denied.
According to Plaintiff, the Court has lost subject-matter jurisdiction based on several perceived
improprieties in this case, including purported violations of his due process rights, fraud,
violations of federal and state statutes, abuse of the Court’s discretion, concealment of a material
fact (it is unspecified by whom), the appearance of bias and prejudice, violations of judicial
canons, and the commission of alleged predicate acts under the Racketeer Influenced and
Corrupt Organizations Act. (Pl.’s Mot., Dkt. # 271, at 1.) Because Plaintiff cites no valid case
law in support of these assertions, the motion is denied. The Court has subject-matter
jurisdiction pursuant to diversity jurisdiction under 28 U.S.C. ' 1332.
II.
Cross-Motions for Summary Judgment
A.
Procedural History
The procedural history of this four-year-old case is lengthy; the Court provides a
summary of the history only for the period after it was assigned the case earlier this year. When
the case was reassigned to this Court on March 26, 2019, Plaintiff=s motion for summary
judgment, which was filed on March 7, 2019, was pending. (Dkt. ## 188, 200.) On March 28,
2019, Defendant filed a motion to strike Plaintiff=s motion for partial summary judgment and
statement of facts. After reviewing the parties’ briefs, the Court denied Defendant=s motion to
strike and set a briefing schedule on Plaintiff=s motion for summary judgment. (Dkt. # 221.)
Defendant then moved to file a cross-motion for summary judgment and amend the briefing
schedule accordingly, which the Court allowed on May 30, 2019. (Dkt. ## 224, 226.) After
Plaintiff filed numerous documents and motions unrelated to summary judgment, he sought, on
June 24, 2019, an extension of the date on which he needed to respond to the cross-motion for
summary judgment B to July 30, 2019. (Dkt. # 256.) The Court granted Plaintiff=s request that
same day, giving him until July 30, 2019 to respond to Defendant=s cross-motion for summary
judgment and file a reply in support of his partial motion for summary judgment. (Dkt. # 259.)
The Court noted in its order that “[g]iven the lengthy extension, any additional requests to extend
the deadline will be disfavored.” (Id.) Plaintiff did not file any papers on July 30, 2019
regarding either party=s motion for summary judgment, and instead, on July 31, 2019, filed the
above-mentioned motion to dismiss for lack of subject-matter jurisdiction.
Given Plaintiff=s failure to meet the generous deadline provided for his summaryjudgment response and reply, and his apparent decision to instead spend his time preparing the
motion to dismiss for lack of subject-matter jurisdiction, the Court will address the summaryjudgment motions without the benefit of Plaintiff=s response. Therefore, to the extent they are
supported by the record, the Court deems Defendant=s statements of fact to be admitted.
B.
Facts
This case arose from purported injuries Plaintiff suffered in Virginia on July 12, 2013
when the vehicle he was riding in was struck from behind by a tractor-trailer owned by
Defendant. (Am. Answer, Dkt. # 35, ¶¶ 11-14.) Plaintiff admits that there was minimal
damage to the rear of the vehicle in which he was riding and that “this was a relatively low
impact collision.” (Pl.’s Mot. Exclude Testimony Regarding Property Damage Vehicles, Dkt. #
42, at 2.) Defendant admits liability for negligence. (Id. & 14.) Plaintiff was involved in
another unrelated car accident in May 2013, during which he sustained injuries to his back and
neck. (Pl.’s Dep., Dkt. # 236-1, at 10-11.)
C.
Summary Judgment Standard
Summary judgment shall be granted “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.” Fed. R. Civ.
P. 56(a). When considering a motion for summary judgment, the Court must construe the
evidence and make all reasonable inferences in favor of the non-moving party. Hutchison v.
Fitzgerald Equip. Co., Inc., 910 F.3d 1016, 1021 (7th Cir. 2018). Summary judgment is
appropriate when the non-moving party “fails to make a showing sufficient to establish the
existence of an element essential to the party’s case and on which that party will bear the burden
of proof at trial.” Celotex v. Catrett, 477 U.S. 317, 322 (1986). “A genuine issue of material
fact arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to
return a verdict for that party.” Brummett v. Sinclair Broadcast Grp., Inc., 414 F.3d 686, 692
(7th Cir. 2005).
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D.
Analysis
The parties agree that Virginia law applies to the instant case. In his motion, Plaintiff
seeks judgment in his favor for “economic any-and-all quantifiable damages as proofs allow in
accordance with any-and-all applicable Virginia statutesBleaving the issue of non-economic
damages to be decided by jury adjudication.” He then asks for ninety days from the date of the
Court’s determination on the matter “to permit the Plaintiff to submit a Memorandum In Support
of a Request for Award,” as he is “still treating for injuries sustained relating to this accident.”
Defendant responds and argues in support of its cross-motion that Plaintiff not only fails
to identify specifically what damages he has incurred, he also does not show that the July 13,
2013 accident at issue in this case caused the “economic and non-economic” damages he seeks.
“Damages are not presumed in a negligence action.” Gilliam v. Immel, 795 S.E.2d 458, 463
(Va. 2017). As the Virginia Supreme Court has stated:
An admission of liability is only an admission of negligence and causation.
Therefore, in the context of an automobile accident case, an admission of liability
relieves the plaintiff of the burden of proving that the defendant was negligent and
that defendant’s negligence was a proximate cause of the accident. An admission
of liability, however, does not admit compensable damage.
Id. It is Plaintiff’s burden to prove his damages by a preponderance of the evidence. Id. at 462.
Given Plaintiff=s failure to respond to Defendant=s cross-motion, the only information the Court
has from Plaintiff with regard to causation or damages is contained in his motion for summary
judgment and supporting statement of facts. In the latter, Plaintiff indicates as follows:
14.
Plaintiff has undergone one of the surgical procedures to address injuries
sustained in motor vehicle accident occurring 12 July 2013.
15.
Plaintiff has incurred economic and non-economic damages as a result of
the motor vehicle accident occurring 12 July 2013.
16.
Records given to the defendants indicate that Plaintiff sustained injuries.
17.
Plaintiff traveled to Costa Rica to obtain evaluation for treatment of
injuries in an effort [to] mitigate treatment costs to the Defendants.
Plaintiff requires surgery and treatment.
18.
19.
Plaintiff, through his former attorney[,] provided Defendants with
documentation to support damages.
20.
Plaintiff independently provided Defendants with additional bills incurred
from and related to treatment.
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21.
Medical bills are generally admissible as damages whether or not they
have been paid.
22.
At social security disability hearing a Judge and vocationalist found
Plaintiff disabled. Plaintiff received 100 % disability benefits and
Medicare Part A and B.
23.
In December of 2013 due to injuries sustained in the July 2013 motor
vehicle accident, the Plaintiff was administratively terminated from his
position as Operations[] Supervisor.
24.
The Plaintiff is still treating for injuries sustained in the July 2013 motor
vehicle accident.
(Pl.’s Stmt. Facts, Dkt. # 190, ¶¶ 14-24.) Each of these statements cites to Plaintiff’s affidavit as
the relevant record support.
Even assuming the truth of these statements, they fail to (1) establish that Plaintiff=s
injuries and resulting medical bills and the loss of his job were caused by the July 12, 2013
accident; or (2) create a genuine issue of material fact as to these issues. Plaintiff has not
pointed to nor can the Court locate any evidence that supports Plaintiff=s assertion that he was
terminated “due to injuries sustained in the July 2013 motor vehicle accident.” Accordingly,
summary judgment is granted in Defendant’s favor as to damages sought for this alleged injury.
The only piece of record evidence that appears to even peripherally address causation
with respect to the alleged physical injuries is a document entitled “Consultation Report,” which
was drafted by the Costa Rican doctor, Alfio P. Piva, whom Plaintiff saw once in April 2016. 1
Dr. Piva was deposed telephonically on October 29, 2016. 2 Plaintiff, representing himself at
1
While Defendant contends that Dr. Riva also issued a Supplemental Report, it appears
that this is simply the last page of his “Consultation Report.” During Plaintiff=s questioning of
Dr. Piva at his deposition, Plaintiff asked Dr. Piva, “What is at the end of the fourth page of your
consultation report?” (Def.’s Mot. Bar, Piva Dep., Dkt. # 238-4, at 11.) Dr. Piva responded
that it “should be [his] signature, time, date, title, and contact information, and the name of the
hospital too.” (Id.) These pieces of information are located at the bottom of the document that
Defendant identifies as a separate Supplemental Report. While Defendant appears to believe
that there are two reports B a three-page “Consultation Report” and a one-page Supplemental
Report B it appears, based on Dr. Piva’s testimony, that there is only one report, with a section of
the Consultation Report entitled “Supplemental Surgical Report.” Therefore, the Court
construes Dr. Piva’s report as being contained in only one document, the “Consultation Report,”
for purposes of this ruling.
2
All participants are designated in the deposition transcript as appearing “via
telephone.” (Def.’s Mot. Bar, Piva Dep., Dkt. # 238-4, at 2.) Dr. Piva was in Costa Rica,
Plaintiff and the court reporter appear to have been in Virginia, and Defendant’s then-counsel,
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that time, briefly questioned Dr. Piva, followed by defense counsel’s questioning of the doctor.
As an initial matter, Defendant moves to bar the testimony by Dr. Piva because Plaintiff
failed to disclose him as an expert witness. Plaintiff disclosed the doctor solely as a treating
physician who would be “testifying as a ‘fact witness.’” (Def.’s Mot. Bar, Ex. B, Pl.’s Rule 26
Disclosure Stmt., Dkt. # 238-2, at 2.) According to Plaintiff’s disclosure, the scope of Dr.
Piva’s testimony was restricted to his observations about “Plaintiff[’]s condition, such as (but not
limited to): alleged injuries, evaluation and treatment protocols for such.” (Id.) Plaintiff’s
disclosure expressly states that Dr. Piva was not retained to provide expert testimony and that a
written report was therefore not required. (Id.) If Dr. Piva was not hired to opine as to the cause
of Plaintiff’s injury but was able to come to a conclusion as to causation in the course of his
treatment, then a report may not be required. See Guarantee Tr. Life Ins. Co. v. Am. Med. &
Life Ins. Co., 291 F.R.D. 234, 237 (N.D. Ill. 2013) (“A physician sought only for treatment is not
‘retained for the purposes of litigation,’ and even if the treating physician will offer an opinion
on causation, the physician may not be retained within the meaning of Rule 26 as long as she
was not retained expressly to review materials and form such an opinion.”). If that is the case,
then no Rule 26 violation occurred.
The circumstances, however, indicate that Plaintiff retained Dr. Piva specifically for this
litigation. While Plaintiff refers to Dr. Piva as a “treating physician,” Plaintiff saw him only
once, three years after the accident. Dr. Piva did not treat Plaintiff over an ongoing period of
time, but examined Plaintiff on one occasion, assessed his injuries, and set forth a proposed
treatment plan. Dr. Piva’s observations are outlined in his “Consultation Report,” 3 which
includes the following passage that Defendant construes as an opinion on causation and seeks to
bar:
Film studies, reports and diagnoses of injuries sustained in May 2013 indicate
whiplash, concussion and soft tissue injuries. These injuries do not correspond
with the diagnosis of injuries sustained in the motor vehicle accident that occurred
Stevan Krkljes, was in Illinois. Due to technical issues with the telephone line stemming from a
“volcano explosion” in Costa Rica, the second part of the deposition is disjointed and difficult to
follow. (Id. at 16.) Dr. Piva also noted that his “mother language isn’t English” so “when it
comes to pretty technical [or] . . . some other issues[,] I might have problems.” (Id. at 42.)
3
It appears from the Plaintiff’s reference to the term “percipient witness” in his Rule
26(a) disclosure that he may have intended Dr. Piva to be designated as a non-retained expert.
See Guarantee Tr. Life Ins. Co. v. Am. Med. & Life Ins. Co., 291 F.R.D. 234, 237 (N.D. Ill.
2013) (stating that “a former employee may be a non-retained expert for the purposes of Rule
26(a)(2) if he is a percipient witness and is testifying based upon his personal knowledge of the
facts or data at issue in the litigation.”). “Non-‘retained’ experts’ summary disclosures must
contain merely ‘(i) the subject matter on which the witness is expected to present evidence under
Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which
the witness is expected to testify.’” Id. at 236 (citation omitted).
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in July 2013 which are presented in this report.
(Def.=s Mot. Bar, Piva Report, Dkt. # 238-3.) Because the circumstances indicate that Dr. Piva
was retained, at least in part, for the purposes of litigation, and any opinion on causation was not
wholly based on his percipient observation, but rather through his review of reports and films
from the May 2013 accident, both his opinion on causation and the facts underlying that opinion
ought to have been disclosed in a detailed Rule 26(a) expert report. 4 Vill. of Bondville v.
Windstream Corp., No. 13 C 2078, 2015 WL 13608437, at *4 (C.D. Ill. Apr. 13, 2015)
(“Forming an opinion based on a review of documents and invoices after the fact is the province
of a retained expert witness under Rule 26(a)(2)(B).”). Because the proper disclosures were not
made, Dr. Piva’s opinion on causation, as construed by Defendant, is subject to automatic
exclusion, unless the failure to disclose was either substantially justified or harmless. See Fed.
R. Civ. P. 37(c)(1).
In its motion to bar, Defendant does not address the issues of harmlessness or substantial
justification, stating only that the opinion must be excluded; as already noted, Plaintiff has not
filed a response to the motion to bar. Therefore, the Court has no input from the parties on the
issue. The Court has reviewed the lengthy docket, including reading relevant transcripts, and it
appears that Defendant chose not to hire an expert. (7/26/16 Hr’g Tr., Dkt. # 37, at 13-14 (“The
Court: Is that right, that you’re not going to utilize an expert? [Defense Counsel]: Yes. Yes.
Yes.”). Because Defendant confirmed it was not hiring an expert even after Plaintiff had
disclosed Dr. Piva, and Defendant had the opportunity to depose Dr. Piva, the Court finds that
Plaintiff’s failure to issue a Rule 26(a) expert report by Dr. Piva was harmless. Accordingly, the
motion to bar Dr. Piva’s testimony is denied.
But even taking into account Dr. Piva’s purported opinion on causation, the Court finds
that Plaintiff has failed to create a genuine issue of material fact whether Plaintiff’s physical
injuries were caused by the July 12, 2013 accident. As noted above, the entirety of Dr. Piva’s
opinion on causation is essentially that the injuries demonstrated by the film studies, reports, and
diagnoses from the May 2013 accident and the July 2013 accident 5 “indicate incongruent
injuries and diagnoses” and that the May 2013 films and reports “do not correspond with the
diagnosis of injuries . . . that occurred in July 2013. . . .” (Def.’s Mot. Bar, Piva Report, Dkt. #
238-3.) These statements do not indicate causation with respect to the July 2013 accident, only
that the injuries reflected in the May 2013 films and reports are different from those reflected in
the July 2013 films and reports. During Dr. Piva’s deposition, Plaintiff did not question Dr.
Piva about causation, focusing only on Dr. Piva’s diagnoses and treatment plan. Dr. Piva’s brief
statements regarding the differences in the films and reports are insufficient to allow Plaintiff to
4
Guarantee Tr. Life Ins., 291 F.R.D. at 236 (“‘Retained’ expert witness disclosures
under Rule 26(a)(2)(B) must be highly detailed to be sufficient.”)
5
It appears from Dr. Piva’s testimony that the radiological films he reviewed with
respect to the July 2013 accident were taken in October 2013. (Def.’s Mot. Bar, Ex. D, Piva
Dep., Dkt. # 238-4, at 26.)
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survive summary judgment on the issue of causation regarding his alleged injuries. As noted by
another court:
To . . . take the question of causation to the jury, non-movant’s evidence
must indicate a reasonable scientific probability that the stated cause
produced the stated result. . . . When evidence raises a mere conjecture,
surmise and speculation as to [causation], it is insufficient to present a
question of causation to the jury.
Smith v. Gen. Motors Corp., 376 F. Supp. 2d 664, 677 (W.D. Va. 2005) (citations and quotation
marks omitted). Dr. Piva’s brief and conclusory statements do not meet this standard.
Conclusion
For the reasons stated above, Defendant’s cross-motion for summary judgment is granted
and Plaintiff’s motion for partial summary judgment is denied.
Date: August 12, 2019
____________________________
Ronald A. Guzmàn
United States District Judge
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