Logan et al v. Westfield Insurance Co et al

Filing 73

ORDER: The Defendants Cory Smothers, Foundation Xpress L L C,& Westfield Insurance Co unopposed 65 Motion for Partial Summary Judgment on Plaintiff Rebecca Logan's Claimed Injury to Her Jaw is GRANTED. Signed by Chief Judge Nannette Jolivette Brown on 2/11/2019. (crt,Putch, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
REBECCA LOGAN, et al.

CIVIL ACTION

VERSUS

NO. 17-29

WESTFIELD INSURANCE
CO., et al.

SECTION: “G”(4)
ORDER

Pending before this Court is Defendants Cory Smothers, Foundation Xpress, LLC, and
Westfield Insurance Company (collectively “Defendants”) unopposed “Motion for Partial
Summary Judgment on Plaintiff Rebecca Logan’s Claimed Injury to Her Jaw.”1 Pursuant to
Federal Rule of Civil Procedure 56, Defendants seek partial summary judgment dismissing
Plaintiff Rebecca Logan’s (“Plaintiff”) jaw injury claim on the basis that Plaintiff cannot prove
that the accident in question caused her injury.2
The currently pending motion was filed on October 24, 2018.3 Pursuant to the Western
District of Louisiana’s Local Rule 7.5, any opposition to a motion must be filed within twenty-one
days after service of the motion. Plaintiff has filed no opposition to the motion, and therefore, the
motion is deemed to be unopposed.4 This Court has authority to grant a motion that is unopposed,

1

Rec. Doc. 65.

2

Id. at 1.

3

Id.

4

A notice of motion setting was issued on October 25, 2018, notifying Plaintiff that she had twenty-one days to file a
response to the motion. Rec. Doc. 66. That same day, the parties attended a status conference at which the pending
motion was discussed. Thus, Plaintiff was made aware of the instant motion on two separate occasions, yet chose not
to file an opposition.

1

although it is not required to do so.5 District courts may grant an unopposed motion as long as the
motion has merit.6
In the instant motion, Defendants argue that the Court should grant summary judgment on
Plaintiff’s alleged jaw injury because Plaintiff cannot prove a causal connection between the
accident and her jaw injury.7 First, Defendants assert that Plaintiff has complained of jaw pain
since February 13, 2012, three years before the accident at issue in this litigation.8 Defendants
present the testimony of Plaintiff’s dentist, Dr. Ashley Price, who stated that she had not determine
the exact cause of Plaintiff’s jaw pain and required an MRI by a medical specialist to do so.9
Defendants allege that Plaintiff never received the recommended evaluation by a medical
specialist.10 Defendants also allege that Dr. Price prescribed Plaintiff treatment for teeth clenching,
which seemed to help with some of Plaintiff’s symptoms, but Dr. Price has still not determined the
exact cause of Plaintiff’s jaw pain.11
Defendants also contend that Dr. Price cannot definitively connect Plaintiff’s jaw pain to
the car accident.12 Defendants state that Dr. Price testified “she would need ‘further information’
to make a causation finding.’”13 Defendants aver that Louisiana law requires Plaintiff to produce

5

Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 356 (5th Cir. 1993).

6

See Braly v. Trail, 254 F.3d 1082 (5th Cir. 2001).

7

Rec. Doc. 65-1 at 2.

8

Id. at 3.

9

Id. at 4.

10

Id. at 4–5.

11

Id. at 5.

12

Id.

13

Id. at 6.

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a medical expert to establish causation, and because Plaintiff fails to do so, her claim fails.14
Therefore, Movants urge the Court to dismiss Plaintiff’s jaw injury tort claim with prejudice.15
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits
show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.”16 If the record, as a whole, could not lead a rational trier of fact to find for the
non-moving party, then no genuine issue of fact exists and the moving party is entitled to judgment
as a matter of law.17 On a motion for summary judgment, the moving party bears the initial burden
of identifying those portions of the record that it believes demonstrate the absence of a genuine
issue of material fact.18 Where the non-moving party bears the burden of proof at trial, as here, the
party moving for summary judgment may meet its burden by showing the Court that there is an
absence of evidence to support the non-moving party’s case.19 Thereafter, if the moving party
satisfies its initial burden, the burden shifts to the non-moving party to “identify specific evidence
in the record, and articulate” precisely how that evidence supports her claims.20
When a district court’s jurisdiction is based on diversity, the Court applies the substantive
law of the forum state.21 In a personal injury tort action in Louisiana, a plaintiff must show by a

14

Id. at 6–7.

15

Id. Plaintiff also filed tort claims related to neck, back, and knee injuries. Id. at 2. Movants do not include arguments
regarding these injuries in the instant motion. Therefore, Plaintiff’s claims based on these injuries will remain in the
case.

16

Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994).
17

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).

18

Celotex, 477 U.S. at 323.

19

Id. at 325.

20

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); see also Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).

21

Holt v. State Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir. 2010).

3

preponderance of evidence “a causal relationship between the injury sustained and the accident
which caused the injury.”22 “The test for determining the causal relationship between the accident
and subsequent injury is whether the plaintiff proved through medical testimony that it is more
probable than not that the subsequent injuries were caused by the accident.”23 A presumption of
causation (the “Housley presumption”) arises if “(1) the claimant was in good health prior to the
accident; (2) commencing with the accident, the symptoms of the disabling condition appeared
and continuously manifested themselves afterwards; and (3) medical evidence shows there is a
reasonable possibility of a causal connection between the accident and the disabling condition.”24
Here, Defendants contend that Plaintiff cannot establish a causal relationship between the
accident and her jaw injury because her treating physician, Dr. Price, has not identified the cause
of Plaintiff’s jaw pain and has not linked the jaw pain to the accident. Defendants argue that
Plaintiff has not presented any other medical testimony to prove a causal relationship, and for this
reason, it is impossible for her to prove the requisite causation. Defendants also assert that the
Housley presumption is not applicable here because under the first part of the test, Plaintiff had
pre-existing jaw complaints.25
Plaintiff has not responded to the motion for summary judgment or presented any evidence
to contradict Defendants’ assertion that Plaintiff cannot prove that the alleged accident caused her
jaw injury. Thus, the undisputed evidence in the record shows that Plaintiff cannot establish the

22

Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La. 2/20/95); 650 So. 2d 757, 759 (citing American Motorist
Insurance Co. v. American Rent–All, Inc., (La. 5/6/91); 579 So. 2d 429; Aucoin v. State Farm Mut. Auto. Ins. Co., (La.
App. 3d Cir. 4/8/87); 505 So. 2d 993; Richard v. Walgreen's Louisiana Co., (La. App. 3d Cir. 10/10/85); 476 So. 2d
1150).

23

Id.

24

Medlin v. Newman, 255 F. App'x 892, 893 (5th Cir. 2007) (citing Housley v. Cerise, (La.1991); 579 So. 2d 973,
980).

25

Rec. Doc. 65-1 at 7.

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element of causation, and therefore, Plaintiff does not have a viable tort claim on this injury. As a
result, there are no material facts in dispute, and this Court finds that Movants’ unopposed motion
for summary judgment has merit.
Accordingly,
IT IS HEREBY ORDERED that Defendants Cory Smothers, Foundation Xpress, LLC,
and Westfield Insurance Company unopposed “Motion for Partial Summary Judgment on Plaintiff
Rebecca Logan’s Claimed Injury to Her Jaw”26 is GRANTED.

11th
NEW ORLEANS, LOUISIANA, this _____ day of February, 2019.

_________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

26

Rec. Doc. 65.

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