Kopey v. Brown et al

Filing 24

OPINION AND ORDER GRANTING 22 RULE 12(f) MOTION to Strike 20 Response to Motion for sanctions; and DENYING 17 MOTION for Summary Judgment. Signed by Senior Judge James T Moody on 02/26/2014. (lyb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
LEE ANN KOPEY,
Plaintiff,
v.
JAMIE BROWN and
PROGRESSIVE PALOVERDE
INSURANCE COMPANY,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

No. 3:11 CV 477

OPINION AND ORDER
Plaintiff Lee Ann Kopey brought this action alleging that defendant Jamie
Brown, an uninsured motorist, negligently caused an automobile collision in which
Kopey suffered personal injuries, and against her own insurer, Progressive Paloverde
Insurance Company (“Progressive”), alleging that it has refused to comply with the
terms of her uninsured motorist coverage. Progressive has moved for a summary
judgment in its favor, (DE #17), and moved to strike a request for sanctions made by
plaintiff Kopey. (DE #22.)
I.

Legal Standard
Summary judgment must be granted when “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). A genuine issue of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Not every dispute between the parties makes

summary judgment inappropriate; “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of
summary judgment.” Id. To determine whether a genuine issue of material fact exists,
the court must construe all facts in the light most favorable to the non-moving party
and draw all reasonable inferences in that party’s favor. Ogden v. Atterholt, 606 F.3d 355,
358 (7th Cir. 2010). A party opposing a properly supported summary judgment motion
may not rely merely on allegations or denials in his or her own pleading, but rather
must “marshal and present the court with the evidence she contends will prove her
case.” Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). If the
nonmoving party fails to establish the existence of an essential element on which he or
she bears the burden of proof at trial, summary judgment is proper. Massey v. Johnson,
457 F.3d 711, 716 (7th Cir. 2006).
II.

Facts
For present purposes, there are no underlying facts in dispute in this case. The

only dispute is whether those facts are enough to create an issue for the jury to decide
as to causation: that is, whether plaintiff Kopey has sufficient evidence that she suffered
any personal injury in the collision with defendant Brown. The court now concisely
summarizes the underlying facts.
The accident with Brown occurred on August 13, 2010. A little more than three
years prior to that, Kopey had been in another auto accident, in March 2007. In the 2007
accident the car Kopey was traveling in was broadsided by a semi tractor-trailer truck
2

going approximately 55 miles per hour. Kopey suffered serious injuries including a
lumbar-spine fracture, a facial laceration, a traumatic brain injury and a left-knee
contusion. According to Kopey’s treating physician, Dr. Timothy E. Davis, after that
accident Kopey had been “struggling to get back to normal” from her injuries but had
not made it “completely back to baseline” at the time of the 2010 collision with Brown.
(DE #18-1 at 23-24.)
In the collision with Brown, Kopey had come to a complete stop at the
intersection of McKinley and Division Streets in Mishawaka, Indiana. She looked in her
rear-view mirror, saw a car approaching her at a rapid rate, and braced for impact. The
approaching car collided with the rear of Kopey’s auto pushing it into the car stopped
in front of Kopey. Although Kopey’s air bags did not deploy, her car was a total loss.
Immediately after the impact Kopey’s back, head, neck, chest, left arm and left wrist
were all bothering her, and by the time she arrived at the emergency room, her left knee
was painful. She had no broken bones, but she had bruising on her chest which
gradually subsided. In the aftermath, she has continued to have headaches, neck pain,
memory problems, back pain, left wrist problems (with grip, numbness and stiffness),
knee pain and swelling, abdominal pain, and trouble sleeping.
Pursuant to Fed. R. Civ. P. 26(a)(2)(C), Kopey’s treating physician Dr. Davis has
provided a summary report. In it, he states that “[c]omplicating” her history are the
injuries she suffered in the 2007 accident. (DE #18-1 at 23.) Dr. Davis continues:

3

She had gotten to the point where she was using less pain medication and
doing yard work and housework at the time when she was reinjured in
2010.
Lee Ann Kopey now has pain with all of her activities of daily
living . . .. The patient has a chronic pain situation that I do not see
improving any time in the near future. Her condition has stabilized at this
point in time, albiet [sic] she is at a much lower functioning level than
previous to this most recent accident . . ..
(Id. at 23-24.)
III.

Analysis
Under Indiana law, “questions of medical causation of a particular injury are

questions of science necessarily dependent on the testimony of physicians and surgeons
learned in such matters.” Hannan v. Pest Control Services, Inc., 734 N.E.2d 674, 679 (Ind.
Ct. App. 2000). On the issue whether the accident with Brown caused Kopey any injury,
the only medical expert she has identified who will testify on the issue is her treating
physician, Dr. Davis. Progressive argues that it is entitled to summary judgment
because Dr. Davis has not diagnosed any specific injury caused by the accident with
Brown, he has only repeated and credited Kopey’s subjective complaints of pain.
Moreover, according to Progressive, any connection Dr. Davis makes between
the accident and Kopey’s pain is based on a temporal connection only, which under
Indiana law is not sufficient to establish causation. See Outlaw v. Erbrich Products Co.,
Inc., 777 N.E.2d 14, 28-29 (Ind. Ct. App. 2002) (“The question of the existence of a causal
relationship between an accident and a resulting permanent medical condition is
ordinarily a complicated medical question outside the understanding of laypersons, and

4

expert testimony on the issue is required.”) (Emphasis added.) As Progressive sees it,
Dr. Davis hasn’t given any “how” or “why” Kopey has increased pain as a result of the
accident: he “doesn’t even opine that any pre-existing injuries were aggravated” by the
2010 accident with Brown. (DE #18 at 809.) Kopey’s response to Progressive’s motion is
that Dr. Davis has opined that she “was reinjured in 2010” by the accident, and that is
enough to create an issue of fact for the jury.
The parties have cited the Indiana cases and the principles therein in a vacuum;
neither has identified any cases with similar facts to the present, and attempted to
analogize or distinguish those cases. Thus, the court points out first, as is suggested by
the court’s emphasis on the word “ordinarily” in the quotation above from Outlaw, that
Progressive reads it and the precedent from which it derives too broadly.
In Outlaw, the plaintiff was seeking to overturn a decision made in a worker’s
compensation administrative proceeding in which she was denied benefits for a
respiratory illness she claimed was caused by inhaling chemical vapors. Not only did
the worker’s compensation board have conflicting expert testimony that cigarette
smoking caused the respiratory condition, 777 N.E.2d at 21-22, the medical expert
retained by plaintiff, “[d]espite acknowledging the apparent absence of scientific
evidence linking Outlaw’s condition to any of the chemicals present in the toilet bowl
cleaner, . . . was certain that exposure to the toilet bowl cleaner caused Outlaw’s
condition ‘[b]ecause she presented to Wishard [Hospital] after this spill, and she talks
about that. And gets much worse after that.’” Id. at 20. Applying a standard of review
5

which would allow it to reverse the worker’s compensation board’s finding only if the
evidence was such that reasonable people would be compelled to reach a contrary
conclusion, Id. at 26, the court found that there was evidence supporting the board’s
decision, thus it could not “say here that the evidence is undisputed and leads
inescapably to a result contrary to the board's finding.” Id. at 28.
It is in this context that the court stated that “an expert’s opinion is insufficient to
establish causation when it is based only upon a temporal relationship between an
event and a subsequent medical condition.” Id. at 29, citing Hannan v. Pest Control
Services, Inc., 734 N.E.2d 674, 682 (Ind. Ct. App.2000). In Hannan the plaintiffs’ claim was
that exposure to chemicals in pesticide spraying had sickened them. The court excluded
their expert’s testimony under Indiana Rule of Evidence 702 as lacking in scientific
reliability and granted a summary judgment to the defendant:
The plaintiffs’ purported experts sought to testify that the plaintiffs
suffered from various ailments because of their alleged exposure to
Dursban and Diazinon, two of the chemicals that PESCO sprayed at the
residence. These prospective witnesses had no relevant information
regarding the exposure level of the chemicals or the dose that the plaintiffs
had allegedly ingested. At least one witness acknowledged that he was
making an assumption as to the dose level. Additionally, while the
ventilation qualities of the home were of importance, the plaintiffs’
experts had never seen the residence and did not have any specific
information regarding the size of the house or configuration of any
ventilating system.
There was only an equivocal diagnosis that Larry Hannan and Wilhite
suffered from Reactive Airways Disease Syndrome (RADS) as a result of
PESCO’s treatment. Moreover, no medical or scientific literature
supported a conclusion that the chemicals to which the plaintiffs were
allegedly exposed could cause RADS. None of the experts offered theories

6

regarding alternative reasonable causes of the symptoms that the plaintiffs
displayed.
734 N.E.2d at 678. In affirming that decision, the Indiana Court of Appeals stated:
In sum, it is apparent from the proposed testimony of the experts that they
were relying on a mere temporal coincidence of the pesticide application
and the Hannans’ alleged and self-reported illness. Such a relationship is
insufficient to establish a prima facie case on the element of causation.
None of the purported experts performed any testing that would rule out
alternative causes of the plaintiffs’ ailments. Such “differential diagnosis” testing
is important in toxic tort cases so that other causes may be negated. Thus, the
opinions of the plaintiffs’ experts were tantamount to subjective belief or
unsupported speculation.
Id. at 682 (citations omitted).1 (Emphasis added.)
In short, while the cases relied on by Progressive establish that “ordinarily” a
temporal relationship is not enough to establish causation in complicated cases,2 none of

The omitted citations are: 1) Turner v. Davis, 699 N.E.2d 1217, 1220 (Ind. Ct.
App.1998) (plaintiff claimed that sleep disorder began after auto accident; this temporal
relationship insufficient to present jury question without any medical expert testimony
on causation); 2) Tucker v. Nike, 919 F. Supp. 1192 (N.D. Ind.1995) (expert medical
opinion that back-tab pull on shoe caused Achilles tendon to rupture excluded where
no testing to confirm hypothesis or to rule out admitted possible alternative causes was
performed); Indiana Michigan Power Co. v. Runge, 717 N.E.2d 216 (Ind. Ct. App.1999)
(plaintiffs lacked any reliable scientific expert testimony showing that exposure to
electro-magnetic fields caused by defendant’s power lines could cause their injuries.)
1

See also Todd v. Merrell Dow Pharmaceuticals, Inc., 942 F.2d 1173, 1179 (7th Cir.
1991) (claim that injuries caused by prescription drugs taken during pregnancy;
summary judgment proper where plaintiff “failed to identify a single expert willing to
provide testimony as to causation nor has she come forward with any scientific
evidence of a causal link between the drug and . . . alleged injuries); Porter v. Whitehall
Laboratories, Inc., 791 F. Supp. 1335, 1334 (S.D. Ind. 1992) (plaintiff claimed that
ibuprofen caused acute renal failure, but summary judgment granted to defendant
where doctor’s untested hypothesis was only support and “[e]very medical expert in
this matter agrees that there is no scientific data establishing a causal link between
ibuprofen”and plaintiff’s condition); Armstrong v. Cerestar USA, Inc., 775 N.E.2d 360, 368
2

7

them establish as an absolute rule that a temporal relationship can never be enough for a
doctor to form a medical opinion based on a temporal relationship. As Progressive
would have the rule, an emergency room doctor treating a patient reporting to have just
dropped an anvil on his or her foot would not be able to form an opinion that the
accident had caused the foot to swell. The Indiana case the court has found with factual
circumstances most analogous to the present indicates that Indiana’s requirements for
expert testimony on causation do not dictate such an illogical result.
That case is Noblesville Casting Div. of TRW, Inc. v. Prince, 438 N.E.2d 722 (Ind.
1982). In Noblesville Casting the plaintiff, Prince, was lifting large flasks weighing two to
three-hundred pounds with the help of two co-workers. Id. at 724. The weight shifted
towards Prince and he:
experienced immediate pain in his back, groin, and left leg, and had
difficulty straightening his back. . . .
A doctor examined Prince but found no evidence of a hernia.
Thereafter, Prince resumed work but continued to experience intense and
periodic pain in his back, as well as in his left leg. At times the pain
prevented him from working. . . .
[Five months later] he entered the hospital for back surgery. A spinal
fusion, which was designed to restrict motion and thereby alleviate pain,
was performed on November 8, 1977.
Id. Prince obtained an award of worker’s compensation benefits, and his employer
sought judicial review of the administrative decision granting them, arguing that the

(Ind. Ct. App. 2002) (expert’s opinion on causation not reliable where expert “not a
licensed physician with training, knowledge and experience to make the proximate
cause determination that Armstrong became light-headed due to exposure to hydrogen
sulfide gas.”).
8

medical expert testimony considered by the worker’s compensation board was not
sufficient to establish causation to a reasonable degree of medical certainty. Id. at 725.
The lower court reversed the award. Id.
The sole expert testimony in the administrative proceeding had come from
Dr. Norman, who performed the spinal fusion surgery. Id. He testified that Prince had
pre-existing arthritic and degenerative problems with his spine, and that it was
“possible” that the incident lifting the flask had aggravated that condition. Id. at 725-26.
The Indiana Supreme Court held that the lower court should have affirmed the award
of worker’s compensation benefits, reasoning that “[o]nce . . . foundational
requirements have been satisfied and the opinion elicited, the expert witness is subject
to the hallmark of our adversarial system-cross-examination” and the “strengths and
weaknesses of the expert’s opinion may be questioned against the facts, its
conclusiveness or lack thereof may be explored, and any lack of certitude may be fully
revealed to the finder of fact.” Id. at 729.
Most importantly the court observed:
Of course, an expert’s opinion that something is “possible” or “could
have been” may be sufficient to sustain a verdict or award when it has
been rendered in conjunction with other evidence concerning the material
factual question to be proved. No hard and fast rule can be stated; the
matter is a factual one to be resolved on a case-by-case basis, depending
upon the particular standards of proof or review which are applicable, as
well as the evidence presented, including the expertise of the witness and
the data and analytical methods upon which the opinion is based.
In the case before us, Dr. Norman’s testimony that Prince’s medical
problems were possibly linked to the May 6, 1976 incident was of
probative value and was properly admitted; as we recently recognized in
9

Rork v. Szabo Foods, (1982) Ind., 436 N.E.2d 64, “the question of the causal
connection between a permanent condition, a work-related injury, and a
pre-existing affliction or condition is a complicated medical question ....”
Id. at 70. Norman's opinion could only serve to assist the finder of fact in
intelligently resolving that question.
Id. at 731 -732. (Ind. 1982). Noblesville Casting indicates that a treating physician familiar
with an individual’s existing injuries is qualified to give an expert opinion that an
accident has aggravated those injuries, and Progressive has cited no case to the
contrary. Moreover, a treating physican drawing an inference of a causal connection
between pain suffered immediately after an automobile accident is similar to the
inference of a causal connection between immediate back pain and the lifting of a 200300 pound object, and not like the “temporal connection” cases cited by Progressive,
which involved either complicated medical issues or temporal connections unsupported
by any expert evidence at all, only by the plaintiff’s lay opinion.
IV.

Conclusion
In the present case it is undisputed that plaintiff Kopey had significant

preexisting injuries from an auto accident in 2007 at the time of the auto accident in
2010. She immediately complained of increased pain from the new accident, and her
treating physician, Dr. Davis, is of the opinion that she “was reinjured in 2010” and at
the time of his report was “at a much lower functioning level than previous to this most
recent accident.” (DE #18-1 at 23-24.) Progressive has not convinced the court that
Dr. Davis is unqualified to render that opinion or that his opinion is unworthy of being
considered as expert testimony.
10

On summary judgment, plaintiff is entitled to reasonable inferences, and
Dr. Davis’s opinion, fairly read, is that the 2010 accident aggravated Kopey’s existing
injuries. Progresive has not shown the court any case stating that it is unsound medical
science for a doctor to arrive at such a conclusion. The strength or weakness of Dr.
Davis’s opinion, and its validity or invalidity, are matters for cross examination and
evaluation by the trier of fact.
That is not to say that Progressive’s argument did not present a close question.
For that reason, and because Kopey did not make her request for sanctions in a separate
motion after requesting withdrawal as is required by FED. R. CIV. P. 11(c)(2),
Progressive’s motion to strike (DE #22) is GRANTED; however, Progressive’s motion
for summary judgment (DE #17) is DENIED for the reasons given above.
SO ORDERED.
Date: February 26, 2014

s/ James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT