Hill v. United States of America

Filing 40

OPINION AND ORDER denying 29 Plaintiff's Motion for Reconsideration. 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 DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
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. Thereafter, on June 18, 2014, the court granted
Defendant’s motion for partial summary judgment which sought summary judgment with
respect to Plaintiff’s brain, neck, and back injuries. Plaintiff now moves for
reconsideration of that order. For the reasons that follow, Plaintiff’s motion will be
denied.
I. BACKGROUND
The complete background is fully set forth in the court’s order granting
Defendant’s motion for partial summary judgment and will not be repeated here. In
short, on December 20, 2010, United States Customs and Border Protection (CBP)
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. (Dkt # 7, Pg. ID 25; Dkt. # 22-7, Pg. ID 194; Dkt. # 24, Pg. ID 219.)
In January 2011, Plaintiff first sought medical attention. (Dkt. # 24. 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.)
Plaintiff submitted a Standard From 95 (SF95), the form used for administrative
claims under the Federal Tort Claims Act (“FTCA”), to the CBP, in which he alleged that
the accident resulted in a traumatic brain injury as well as injuries to his neck, left
shoulder, and lower back. (Dkt. # 24-2, Pg. ID 242.) Plaintiff attached various medical
records to his SF95. After the CBP denied his claim, Plaintiff filed the present suit.
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
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

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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.)
II. STANDARD
A motion for reconsideration shall be granted only if the movant can
(1) “demonstrate a palpable defect by which the court and the parties . . . have been
misled,” and (2) “show that correcting the defect will result in a different disposition of
the case.” E.D. Mich. LR 7.1(h)(3). “A ‘palpable defect’ is a defect that is obvious,
clear, unmistakable, manifest, or plain.” United States v. Lockett, 328 F. Supp. 2d 682,
684 (E.D. Mich. 2004).
III. DISCUSSION
Plaintiff makes five arguments in his motion for reconsideration. Each lacks
merit.
Plaintiff first argues that the court “erred in adopting the ex parte opinions of
Defendant’s IME experts, while ignoring Plaintiff’s evidence.” (Dkt. # 29, Pg. ID 523.)
As detailed in the court’s order, Plaintiff did not comply with his discovery obligations: he
did not provide the items Defendant sought in its request to produce, he did not “fully”
respond to Defendant’s interrogatories, and he did not respond to Defendant’s requests
for admissions. As the court explained:

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[a]fter failing to comply with discovery, [Plaintiff] 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.
(Dkt. # 28, Pg. ID 519.) Contrary to Plaintiff’s protestations, the court did not make any
credibility determinations, but rather, simply determined that the evidence produced
created no genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). The court credited Defendant’s medical reports because those reports
constitute the only medical evidence that were properly before the court.
Plaintiff next argues that the court erred because Defendant “accepted Plaintiff’s
[discovery] responses and waived the right to challenge them by failing to file a timely
motion to compel.” (Dkt. # 29, Pg. ID 528.) This is a novel argument. However, “a
motion for reconsideration is not an appropriate vehicle for raising new facts or
arguments.” United States v. A.F.F., 144 F. Supp. 2d 809, 811 (citing Salopek v.
Comm’r of Internal Revenue, No. 99-9012, 2000 WL 350263, at *2 (10th Cir. Apr.5,
2000)). Motions under Local Rule 7.1(h) “are aimed at re consideration, not initial
consideration.” Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367,
374 (6th Cir. 1998) (quoting FDIC v. World Univ. Inc., 978 F.2d 10, 16 (1st Cir.1992)).1

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Moreover, even if Plaintiff had raised this argument in its response, it would not
have been successful. Plaintiff is attempting to shift his burden to Defendant. Federal
Rule of Civil Procedure 26(e)(1)(A) states that a party who has responded to an
interrogatory, request for production, or request for admission, must supplement or
correct a response “in a timely manner if the party learns that in some material respect
the . . . response is incomplete or incorrect.” Violation of Rule 26 gives rise to the
application of Rule 37(c)(1), which provides that “[a] party that without substantial
justification fails to disclose information required by Rule 26(a) or 26(e)(1), . . . is not,
unless such failure is harmless, permitted to use as evidence at trial, at a hearing, or on
a motion any witness or information not so disclosed.” Fed. R. Civ. P. 37(c)(1).
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Defendant’s third argument—that the court erred by not considering the
documentation attached to his SF95—is a variation of his first argument. Plaintiff
emphasizes, as he did in his response, that Defendant possessed a copy of the medical
records attached to his SF95 and therefore he did not need to produce another copy
during discovery. Actually, he did. Plaintiff’s repeated reliance on Bluestein v. Cent.
Wis. Anesthesiology, S.C., 296 F.R.D. 597 (W.D. Wis. 2013), and Stovall v. U.S., 85
Fed. Cl. 810 (Fed. Cl. 2009), is misplaced because he misreads each opinion. The
Bluestein court explained that a party is bound by what he produces in discovery:
In Request 21 of its 26 requests for production of documents, defendant
asked plaintiff to produce “[a]ll documents that support [her] claim that the
Rehabilitation Act of 1973 applies to the parties to this case.” Although
plaintiff objected to this request as overly broad, she later referred defendant
to the documents she had produced in response to requests 1 and 2 (asking
for medical records, treating physician information and prescription
medication information). Defendant argues that this response is inadequate
but does not identify any additional documents plaintiff should have
produced. Plaintiff has directed defendant to documents that she believes
are responsive to its request. She need not produce additional copies of
these documents. However, plaintiff is now bound by her response. She
may not rely on any documents other than those she has already turned over
to defendant to prove her Rehabilitation Act of 1973 claim either at summary
judgment or at trial.
Id. at 602 (citations omitted) (emphasis added). Thus, in Bluestein, the plaintiff referred
to documents that he had already provided during civil discovery. In contrast, here,
during discovery, Plaintiff referred to documents that he never produced during
discovery. Bluestein unequivocally states that a Plaintiff “cannot use any unproduced
documents to prove or defend her case at summary judgment or trial.” Id. Similarly, in
Stovall the court stated that it, “declines to order the production of certain documents
that appear to be exact duplicates of documents that will otherwise be produced.”
Stovall, 85 Fed. Cl. at 818 n.11 (emphasis added). Unlike in Stovall, Plaintiff did not
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“otherwise. . . [produce]” the medical documents attached to his SF95 during civil
discovery. Because Plaintiff did not produce his SF95 during civil discovery, he cannot
rely on the medical records attached to his administrative claim form in this action.2
Plaintiff’s fourth argument—that the court erred “in declaring that evidentiary
materials in the possession of the [C]BP are not equally in the possession of Defendant
United States of America” (Dkt. # 29, Pg. ID 532)—fares no better than his first three.
Plaintiff need not convince this court that the CBP is part of the United States
Government. In its earlier opinion, the court merely observed in a footnote that “[a]s
Plaintiff well knows, the Defendant in his suit is the United States of America, not the
CBP.” (Dkt. # 28, Pg. ID 519.) The court was simply underscoring its point that the
documents Plaintiff attached to his SF95 were provided to the CBP as part of his
administrative claim, and he is now proceeding in a civil lawsuit with the United States of
America named as Defendant.
Finally, Plaintiff argues that the court erred in “completely ignoring [his] medical
evidence.” (Dkt. # 19, Pg. ID 534.) This fifth argument is another version of Plaintiff’s
first and third arguments and will not be discussed yet again.
Because Plaintiff has not identified any defect in the court’s analysis which would
lead to an outcome in his favor, his motion for reconsideration will be denied.

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The court also notes that because Plaintiff 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.
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IV. CONCLUSION
For the reasons stated above, IT IS ORDERED that Plaintiff’s motion for
reconsideration (Dkt. # 29) is DENIED.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: July 2, 2014

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, July 2, 2014, by electronic and/or ordinary mail.

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

S:\Cleland\JUDGE'S DESK\C1 ORDERS\13-11713.HILL.MReconsider.rljr.wpd

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