Hill v. United States of America

Filing 28

OPINION AND ORDER granting 22 Defendant's Motion for Partial Summary Judgment. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DOUGLAS HILL,
Plaintiff,
v.

Case No. 13-11713

UNITED STATES OF AMERICA,
Defendant.
/
OPINION AND ORDER
GRANTING DEFENDANT’S PARTIAL MOTION FOR SUMMARY JUDGMENT
On April 16, 2013, Plaintiff Douglas Hill sued Defendant United States of America
for automobile negligence under the Federal Tort Claims Act (FTCA) alleging injuries to
his brain, neck, shoulder, and back. Defendant moved for partial summary judgment.
As part of his response, Plaintiff seeks sanctions pursuant to Federal Rule of Civil
Procedure 11.1 The matter is fully briefed, and no hearing is needed. See E.D. Mich.
LR 7.1(f)(2). For the reasons that follow, Defendant’s motion will be granted.
I. BACKGROUND
On December 20, 2010 at approximately 5:30 am, United States Customs and
Border Protection agent James Taylor was driving eastbound on Jefferson Avenue in
Detroit, Michigan when he “disregarded the red signal and struck” Plaintiff, who was
driving northbound on Conner Street at approximately 25 miles per hour. (Dkt # 7, Pg.

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Plaintiff’s response purports to be both a response and a motion for sanctions.
However, Plaintiff has not filed a separate motion for sanctions as Rule 11 requires.
Fed. R. Civ. P. 11(c)(2). In any event, Plaintiff has also failed to establish any basis for
sanctions. Therefore, the court will construe this filing as a response only. Plaintiff is
directed to file any motions separately from other filings in this court in the future.

ID 25; Dkt. # 22-7, Pg. ID 194; Dkt. # 24, Pg. ID 219.) Plaintiff’s air bag did not deploy
and after the collision, Plaintiff did not lose consciousness, notice any bleeding, or feel
any broken bones. (Dkt. # 24, Pg. ID 219.) Plaintiff proceeded to his place of
employment. (Id.) In January 2011, after consulting a lawyer, Plaintiff first sought
medical attention. (Id. at Pg. ID 220.) On January 23, 2014, Dr. John F. O’Leary, a
neuropsychologist, performed an independent medical examination (IME) and
concluded that Plaintiff’s “cognitive test results were not consistent with any type of
known cognitive impairment, other than intentionally feigned memory impairment.” (Dkt.
# 22-4, Pg. ID 165.) An orthopedic surgeon, Dr. William Higginbotham, III, also
performed an IME in late January and determined that “nothing in [Plaintiff’s] clinical
examination or his medical records, including MRIs of his cervical and lumbar spine,
suggested any disabling orthopedic condition in Mr. Hill’s neck and lower back.” (Dkt. #
22-5, Pg. ID 169.) Plaintiff stopped working in May 2011 claiming total disability. (Id.)
Defendant timely submitted a Standard From 95 (SF95), the form used for
administrative claims under the Federal Tort Claims Act (“FTCA”), to the United States
Customs and Border Protection (CBP). In his SF95 Plaintiff alleges, inter alia, that the
accident resulted in a traumatic brain injury as well as injuries to his neck, left shoulder,
and lower back and he demanded $500,000.00. (Dkt. # 24-2, Pg. ID 242.) Plaintiff
attached various medical records to his SF95. On, February 12, 2013, the CBP denied
Plaintiff’s SF95. As the FTCA requires, Plaintiff filed the present suit within six months
of the denial.
During discovery, when asked to produce records upon which he would rely to
support his claims, Plaintiff refused to provide any and instead referenced the records

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attached to his SF95. For example, in its “Request for Production of Documents and
Things,” Defendant sought “each and every document, exhibit, item of tangible
evidence, photograph, or visual aid on which you will rely to support . . . your claims in
this action,” to which Plaintiff responded: “Please see medical records, employment
records, Social Security Records.” (Dkt. # 22-6, Pg. ID 171.) Plaintiff responded
similarly to Defendants’ interrogatories. For instance, when asked to “Please describe
by category and location—or else provide a copy—of all documents, electronically
stored information, and tangible things that you have in your possession, custody, or
control that you may use to support your claims in this lawsuit,” Plaintiff responded:
“Please see the medical records and police report. Plaintiff has already provided the
signed authorizations for the medical records.” (Dkt. # 22-7, Pg. ID 182.) Plaintiff never
responded to Defendant’s request to admit that he had, through discovery, provided all
medical records on which he would rely. (Dkt. # 25-4, Pg. ID 480–81; Dkt. # 24, Pg. ID
224.)
Defendant now moves for partial summary judgment as to Plaintiff’s claims that
the accident caused injury to his brain, neck, and back.2
II. STANDARD
Summary judgment is proper only when there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). “In deciding a motion for summary judgment, the court must view the
evidence in the light most favorable to the non-moving party, drawing all reasonable

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Defendant’s motion is partial because it does not seek summary judgment
regarding Plaintiff’s claim of a shoulder injury.
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inferences in that party’s favor.” Sagan v. United States, 342 F.3d 403, 497 (6th Cir.
2003).
The moving party has the initial burden of showing the absence of a genuine
dispute as to a material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The burden then shifts to the non-moving party, who must put forth enough evidence to
show that there exists “a genuine issue for trial.” Horton v. Potter, 369 F.3d 906, 909
(6th Cir. 2004) (citing Matsushita v. Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986)). Summary judgment, therefore, is not appropriate when “the evidence
presents a sufficient disagreement to require submission to a jury.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251–52 (1986).
The existence of a factual dispute alone does not, however, defeat a properly
supported motion for summary judgment. Instead, the disputed factual issue must be
material. A fact is “material” for purposes of summary judgment when proof of that fact
would establish or refute an essential element of the claim or a defense advanced by
either party. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984) (citation omitted).
III. DISCUSSION
Under the FTCA, the United States can be held liable
for injury or loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment, under
circumstances where the United States, if a private person, would be liable
to the claimant in accordance with the law of the place where the act or
omission occurred.
28 U.S.C. § 1346(b)(1). Thus, as the parties suggest, because the alleged act or
omission occurred in Michigan, the court applies Michigan law.

Michigan’s

no-fault insurance act, Mich. Comp. Laws 500.3101 et seq., created a compulsory
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motor vehicle insurance program under which insureds recover directly from their
insurers for qualifying economic losses arising from motor vehicle accidents. The act
also severely curtailed tort liability by only allowing tort liability for non-economic losses
where “the injured person has suffered death, serious impairment of body function, or
permanent serious disfigurement.” Mich. Comp. Laws 500.3135(1). The statute
imposes three prongs that are necessary to establish a serious impairment of bodily
function:
(1) an objectively manifested impairment
(2) of an important body function that
(3) affects the person’s general ability to lead his or her normal life.
McCormick v. Carrier, 795 N.W.2d 517, 526 (Mich. 2010); see also Mich. Comp. Laws
§ 500.3135(5).
The court should determine whether there is a factual dispute regarding the
nature and extent of the person’s injuries, and, if so, whether the dispute is
material to determining whether the serious impairment of body function
threshold is met. If there is no factual dispute, or no material factual dispute,
then whether the threshold is met is a question of law for the court.
McCormick, 795 N.W.2d at 537.
Within the meaning of § 500.3135(5), an “‘[o]bjectively manifested’ [impairment]
is an impairment that is evidenced by actual symptoms or conditions that someone
other than the injured person would observe or perceive as impairing a body function.”
McCormick, at 527. Medical documentation is not always required to establish an
objectively manifested impairment. Id. at 528. However, a plaintiff must “introduce
evidence establishing that there is a physical basis for [his] subjective complaints of
pain and suffering” and this generally requires medical testimony. Id. (citation omitted).

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Defendant argues that Plaintiff has not met his burden under the first prong of the
McCormick test because he has not established an objectively manifested impairment;
instead, he has only presented evidence regarding his subjective pain through his
deposition testimony. Defendant explains that, “[r]epeated requests were put to
[Plaintiff] in discovery to substantiate his claims, through requests for production,
interrogatories, and requests for admission. None resulted in any meaningful response,
much less evidence to show how any of his supposed injuries were objectively
manifested.” (Dkt. # 22, Pg. ID 107 (citations omitted).) Plaintiff admits that he
responded to Defendants discovery requests with “see medical records” or an
equivalent reference. He explains that he provided the CBP with medical records as
part of his administrative claim and that “rather than provide a second copy of medical
records or other materials already known to be in the possession of the government’s
attorney, [he] simply referenced such materials in response to interrogatories or
requests to produce.” (Dkt. # 24, Pg. ID 228.)
The Federal Rules of Civil Procedure govern discovery in civil actions. Under
Rule 34, in response to a request to produce, a party must either provide the requested
items (or allow inspection of them) or, alternatively, object to the request. Fed. R. Civ.
P. 34. With respect to interrogatories, Rule 33(b)(3) states that “each interrogatory
must, to the extent it is not objected to, be answered separately and fully in writing
under oath.” Fed. R. Civ. P. 33(b)(3) (emphasis added). Regarding requests for
admissions, as stated earlier, Plaintiff acknowledged that his failure to respond renders
them admitted in accordance with Rule 36. See Fed. R. Civ. P. 36. Plaintiff did not
provide the items Defendant sought in its request to produce and he did not respond

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“fully” to Defendant’s interrogatories. Plaintiff has not complied with his discovery
obligations. As Defendant puts it, “Plaintiff seems to treat signing a medical release and
complying with the FTCA’s administrative requirements as a free pass to skip civil
discovery.”3 (Dkt. # 25, Pg. ID 447.)
Plaintiff also emphasizes that he signed medical releases at Defendant’s request,
and Defendant could thereby obtain his medical records. Yet this does not change the
fact that Plaintiff did not adequately respond to Defendant’s interrogatories or requests
to produce. And, because he did not respond to Defendant’s request to admit that he
“provided to Defendant all medical records on which he will rely to support his claims as
part of his initial disclosures and during the course of discovery through December 13,
2013,” he admitted as much. After failing to comply with discovery, he cannot now, in
his response to Defendant’s motion for summary judgment, cite portions of the medical
records attached to his SF95. Plaintiff cannot meet his burden of establishing “an
objectively manifested impairment” because he has presented no evidence to support
such a claim.

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The fact that the CBP had Plaintiff’s medical records because they were
attached to his SF85 is of little relevance. As Plaintiff’s well knows, the Defendant in his
suit is the United States of America, not the CBP. Moreover, Plaintiff’s reliance on
Bluestein v. Cent. Wis. Anesthesiology, S.C., 296 F.R.D. 597 (W.D. Wis. 2013), for the
proposition that he may not rely on documents other than those in possession of one’s
opponent actually serves to bolster Defendant’s position. According to Bluestein, a
party is bound by what he produced in discovery. Because Plaintiff did not produce his
SF85 during civil discovery, he cannot rely on the medical records attached to his
administrative claim in this action.
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IV. CONCLUSION
For the reasons stated above, IT IS ORDERED that Defendant’s motion for
partial summary judgment (Dkt. # 22) is GRANTED.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: June 18, 2014

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, June 18, 2014, by electronic and/or ordinary mail.

s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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