LOPEZ-GARCIA v. UNITED STATES OF AMERICA

Filing 32

OPINION and ORDER re 23 granting deft's MOTION for Summary Judgment. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

FROYLAN LOPEZ-GARCIA,
Case No. 15-11374
Plaintiff,
Honorable Nancy G. Edmunds
v.
UNITED STATES OF AMERICA,
Defendant.
/

OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT [23]
On April 25, 2014, Plaintiff Froylan Lopez-Garcia’s (“Garcia”) work van was struck
from behind by a vehicle driven by a United States Postal Service worker. Garcia was
transported by ambulance to the hospital where he was treated for three or four hours
before being discharged. The following year, Garcia initiated this action against the United
States of America (the “Government”) under the Federal Tort Claims Act. Garcia maintains
that he is entitled to non-economic damages under the Michigan No-Fault Act because the
accident left him seriously impaired.
Currently before the Court is the Government’s motion for summary judgment
pursuant to Federal Rule of Civil Procedure 56. (Dkt. 23). Because Garcia has failed to
present any evidence establishing causation–a critical component of the McCormick
inquiry–the Court must, and does GRANT the Government’s motion.

I. FACTS
A. The Accident
The material facts giving rise to this dispute are not seriously debated. On April 25,
2014, Garcia was driving a 2005 Ford Econoline van bearing the name “H-Town Carpet”
to a job site. Garcia’s employee, Juan Manuel Flores-Ochoa (“Ochoa”), was seated in the
front passenger seat. As the van traveled southbound on Wayne Road, it was struck from
behind by Deborah Hunt (“Hunt”), a United States Postal Service letter carrier. Garcia
testified that he was at a complete stop waiting for a group of ducks to cross the road when
the accident occurred. Hunt, on the other hand, maintains that Garcia abruptly stopped in
front of her to avoid the birds. In either case, Hunt was issued a citation from the Westland
Police Department for failing to stop in sufficient distance to avoid the wreck. Garcia and
Ochoa both testified that they were wearing seatbelts, the van’s airbags did not deploy, and
they did not lose consciousness at any time. (Ex. 1, Lopez Garcia Dep. Tr., 41:19-23, 44:46, 52:3-6); (Ex. 4, Flores-Ochoa Dep. Tr., 24:4-14). The van was operable after the
accident and did not require any subsequent repairs. (Ex. 1, 49: 13-23).
At some point, an ambulance arrived and transported Garcia to Oakwood Annapolis
Hospital in Wayne, Michigan. (Ex. 6, Oakwood Medical Record, OAH-0001-0005).
According to the ER report authored by Dr. Deflin Ventura, Garcia complained of moderate
lower back and neck pain and left lower flank and left lower ribcage pain, rating his overall
discomfort a 6 out of 10. (Id. at OAH-0008). While at the hospital, Garcia underwent a CT
scan and multiple x-rays. The x-rays came back normal and the CT scan showed
“[d]egenerative changes in the lumbar spine” and a posterior disc bulge at the L4-5. (Id. at
OAH-0048). Garcia’s pain was described as “rapidly improving” shortly after he was
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administered pain medication. (Id. at OAH-0030). Approximately four hours after arriving,
he was discharged with two prescriptions to help control the pain. (Id. at OAH-0007). The
Monday following the Friday accident, April 28, 2014, Garcia returned to work. (Ex. 1,
51:10-17).
B. Post-Accident Medical History
On June 12, 2014, around seven weeks after the accident, Garcia sought medical
treatment from Dr. Craig Peppler, D.O., at Preferred Rehabilitation. (Ex. 7, Peppler Medial
Records, PR-0040). The notes from Dr. Peppler’s initial examination indicate that Garcia’s
chief complaints were lower back pain, intermittent bilateral leg pain, and ringing in his ears.
Id. After a full physical examination, Dr. Pepper concluded that Garcia suffered from acute
low back pain, post traumatic cephalgia improving, and neck pain improved.1 (Id. at PR0043). Dr. Peppler recommended four to six weeks of physical therapy, ordered an MRI of
Garcia’s lumbar spine, and prescribed medication for pain management. (Id. at PR-004445).
Between June 13 and July 30, 2014, Garcia completed 20 physical therapy sessions.
(Id. at PR 0145-0172). At his first appointment, the physical therapist noted that Garcia
“demonstrate[d] pain and restricted AROM in lumbar spine affecting activities of daily living
and quality of life.” (Id. at PR-0175). Garcia returned to Dr. Peppler on August 14, 2015.
(Id. at PR-0029). At that time, Dr. Peppler’s impression remained largely the same, adding
only that Garcia’s “current diagnosis” included “[l]ate effects of motor vehicle accident.” (Id.
at PR-0029-0030). Dr. Peppler re-authorized Garcia’s disability certificate, recommended
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Dr. Peppler’s conclusions appear to be largely–if not exclusively–based on Garcia’s
subjective complaints.
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additional physical therapy, and again requested an MRI of the lumbar spine.2 (Id. at PR0029-30).
Over the course of the next 12 weeks, Garcia completed an additional 31 physical
therapy sessions. (Id. at PR-0076-0143). The records from those appointments indicate
that Garcia was steadily improving. On October 13, 2014, for example, Garcia “reported
that the pain [was] getting better with each therapy session.” (Id. at PR-0103). Similarly,
in Garcia’s last month of therapy, he “reported minimal soreness in the lower back” (Id. at
PR-0083), and the physical therapist noted that he “demonstrate[d] reduc[ed] pain[,]
improv[ed] AROM in lumbar spine . . . [and] improv[ed] core muscle strength.” (Id. at PR0083, 0088). During that same time period, Garcia underwent an MRI of the lumbar spine
at Basha Open MRI. According to the report issued by Dr. Seetha Vakhariya, M.D., the
MRI showed no sign of “acute fracture”, but did indicate “mild diffuse disc bulge” in three
regions of the spine. (Ex. 9, Basha Open MRI Records, BD-002).
On November 13, 2014, Dr. Peppler concluded that Garcia “reached maximum medical
improvement with physical therapy”, and that the MRI did “not show evidence of disc
protrusion; however it did show evidence of facet arthritis.” (Id. at PR-0024). In light of
these findings, Dr. Peppler did not believe Garcia was a candidate for surgery, but that he
might benefit from lumbar facet injections. Id. Between February and April 2015, Garcia
received four sets of trigger point injections for pain. (Id. at PR-0010). On April 23,
2015–Garcia’s last appointment with Dr. Peppler on record–he reported that his pain was
“improving”, the injections were providing sustained relief, and he did not require a

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For reasons unknown, Garcia failed to obtain an MRI after his first appointment with
Dr. Peppler.
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prescription for pain medication. Id.
In late 2014, Garcia was referred to an ear, nose and throat specialist for bilateral
tinnitus. (Ex. 8, Downriver ENT Records, DEN-0022). Despite having a history of tinnitus
dating back to at least 2009 (Ex. 10, Henry Ford Records, HFH-0072), Garcia indicated that
the “ringing in both ears plus dizziness” started after the “van accident on April 25, 2014.”
(Ex. 8, DEN-0005). Nevertheless, the audiologist concluded that Garcia had normal
hearing in low frequencies and mild mixed loss in higher frequencies. (Id. at DEN-0007).
The treating physician recommended bilateral hearing aids and Xanax. (Id. at DEN-0003).
It is unknown whether Garcia ever acquired the hearing aids or returned to the specialist’s
office following the November 14, 2014 appointment.
Garcia’s last medical appointment was on April 27, 2015 with Dr. Nilofer Nisar, M.D. of
Wayne Neurology. Dr. Nisar recommended a battery of tests to evaluate whether Garcia
had any radiculopathic, neuropathic, or cerbral abnormalities related to his neck and back
pain. (Ex. 11, Wayne Neurology Records, NN-0004). The record does not reflect whether
Garcia ever pursued these tests or any additional treatment related to his alleged injuries
after April 27.
In January 2015 and again in January 2016, Garcia underwent an independent medical
evaluation (“IME”) with Dr. Daniel M. Ryan, M.D. (Ex. 12, Ryan IME Report). Based on a
thorough review of all available medical records and two physical examinations, Dr. Ryan
concluded that Garcia was fully recovered. Id. While noting Garcia’s “subjective complaints
of lower back pain”, Dr. Ryan indicated that “there [were] no objective findings . . . of any
injury that would be related to the motor vehicle accident at this time. [Garcia’s] hands and
arms examination were normal. His lower back examination was normal except for the
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subjective tenderness.” Id. In the end, Garcia agreed with Dr. Ryan’s assessment that he
was capable of returning to work. Garcia has not offered any expert testimony concerning
his injuries, the accident, or Dr. Ryan’s report.
C. Life After the Accident
Garcia returned to work three days after the accident, but testified that he quit after
about a month because it “didn’t work out.” (Ex. 1, 10:3-6). This, according to Garcia, was
the last time he worked due to pain from the accident. (Id. at 10:7-9). Garcia’s former
supervisor–Matthew Fleeman–remembers things very differently. Fleeman testified that
Garcia took approximately six months off to complete physical therapy and then returned
on a part time basis, working a few days every week. (Ex. 5, Fleeman Dep. Tr., 38:20-24).
According to Fleeman, Garcia continued working until March 2016; right around the time
Fleeman was subpoenaed for a deposition in this case, which the two briefly discussed. (Id.
at 42).
Fleeman’s testimony is corroborated by Garcia’s own Facebook posts. Indeed, on
February 1, 2015, Garcia wrote a note to his aunt indicating that, “I’m always 100 percent
and always running my crew.” (Ex. 1, 184:7-23) (“I just wrote that down because I don’t talk
to her . . . but, yes I did put it down that I was working.” Q: “Running your own crew? A:
“Yes.”). Approximately one year later, Garcia was observed by United States Postal
Service investigators carrying work items to and from an apartment building and disposing
of boxes that had previously held laminate flooring. (Ex. 13, USPS Investigation, 3, ¶¶ 8-9).
With respect to leisure activities, Garcia acknowledged Facebook posts establishing that
he (1) visited a water park in Galveston, Texas, (2) rode a train at the Toledo Zoo, (3) rode
a four-wheel all terrain vehicle, and (4) went on a six-week cross-country road trip with his
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family in the summer of 2015. (Ex. 1, 166-67, 172-73, 177-78, 186-87).
II. LEGAL STANDARD
It is well established that summary judgment under Federal Rule of Civil Procedure 56
is proper when the movant “shows that there is no genuine dispute as to any material fact,
and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); S.E.C.
v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 326–27 (6th Cir. 2013) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986))
(quotations omitted). When reviewing the record, “the court must view the evidence in the
light most favorable to the non-moving party and draw all reasonable inferences in its
favor.” Id. Furthermore, the “substantive law will identify which facts are material, and
summary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
When considering the material facts on the record, a court must bear in mind that “[t]he
mere existence of a scintilla of evidence in support of the plaintiff's position will be
insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”
Anderson, 477 U.S. at 252, 106 S.Ct. 2505.
III. ANALYSIS
Under the Federal Tort Claims Act, liability “is usually determined by referencing state
law.” Premo v. United States, 599 F.3d 540, 545 (6th Cir. 2010) (citation omitted). Here,
Garcia seeks non-economic damages under the Michigan No-Fault Act, Mich. Comp. Laws.
§ 500.3135 et seq.3
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Garcia has agreed to voluntarily dismiss his claim for economic damages. (Plf.’s
Resp. 14).
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Tort liability for non-economic loss under the No-Fault Act is limited to cases in which
an injury party “has suffered death, serious impairment of body function, or permanent
serious disfigurement” that was “caused by [the] ownership, maintenance, or use of a motor
vehicle.” § 500.3135(1). A “serious impairment of body function” means “an objectively
manifested impairment of an important body function that affects the person’s general
ability to lead his or her normal life.” § 500.3135(5); McCormick v. Carrier, 795 N.W.2d
517, 524 (Mich. 2010). The Michigan Supreme Court has explained that, as a threshold
matter:
[t]he 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.
Id. at 537 (citation omitted). To demonstrate a “serious impairment of body function”, a
plaintiff must show: “(1) an objectively manifested impairment (2) of an impairment body
function that (3) affects the person’s general ability to lead his or her normal life.” Id. The
Government argues that Garcia cannot demonstrate a “serious impairment” under
McCormick for two reasons: First, there is no medical evidence in the record establishing
a causal link between an objective injury and the accident. In addition, the Government
maintains that Garcia’s injuries, if any, have not diminished his ability to lead a normal life.
To the extent that there are questions of fact in this case, the Court finds that they are not
material for purposes of determining whether Garcia’s injury resulted in a serious
impairment of body function. For that reason, the “serious impairment” analysis may
appropriately be resolved by way of summary judgment.
Under the first prong of McCormick, Garcia must show that the injuries resulting from
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the accident were “evidenced by actual symptoms or conditions that someone other than
the injured person would observe or perceive as impairing a body function.” Id. at 527. In
other words, Garcia must, at a minimum, demonstrate a causal relationship between his
injury and the accident. See Mehdi v. Gardner, No. 319630, 2015 WL 1227710, at *2
(Mich. Ct. App. March 17, 2015). In McCormick, for example, “the plaintiff established an
objectively manifested impairment where he suffered a broken ankle as a result of a vehicle
accident, had difficulty walking . . . and had continuing pain and a limited range of ankle
motion even 14 months after the injury.” Id. By contrast, in Mehdi, “[a]lthough MRIs and
a nerve conduction study performed after the accident revealed medical abnormalities in
plaintiff’s nerves and a bulging spinal disc, which account[ed] for plaintiff’s complaints of
continuing pain, plaintiff presented no evidence linking his conditions to the vehicle
accident.” Id. This case is much closer to Mehdi.
In attempt to establish causation, Garcia directs the Court’s attention to a number of
medical records suggesting that he suffered an injury. See (Plf.’s Resp 6-7). But a general
reference, without some facially apparent connection to the underlying trauma–or an expert
opinion establishing same–is not enough. This is especially true where, as here, a CT scan
of Garcia’s lumbar spine immediately following the accident was deemed “normal”, and a
follow-up MRI conducted months later showed no signs of “acute fracture.” (Ex. 6 OAH0047-0048); (Ex. 9, Basha Open MRI Records, BD-002). While it’s true, as Garcia points
out, that an August 2014 MRI revealed a “minor disc bulge” in his spine, there is nothing
in the record establishing a nexus between this condition and the underlying accident. In
fact, the only expert opinion on record is that of Dr. Ryan, who, on two separate occasions
concluded that there were “no objective findings . . of an injury that would be related to the
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motor vehicle accident . . . .” (Ex. 12 at 4). While not dispositive of the issue, Garcia has
failed to present any “admissible evidence that his current condition resulted from the
incident at issue.” Chandanais v. Wilson, No. 300933, 2011 WL 5604649, at *2 (Mich. Ct.
App. Nov. 17, 2011). And this is critical; “[t]he fact that the objective records do not rule out
the accident as a cause of [Garcia’s] injuries does not . . . help [Garcia] establish [his]
burden of showing that the injuries were caused by the accident.” Sartor v. State Farm, No.
11-14173, 2013 WL 3224039, at *6 (E.D. Mich. June 25, 2013); see also Lenk v.
Frankenmuth Ins. Co., No. 317014, 2014 WL 6713475, at *2 (Mich. Ct. App. Nov. 25, 2014)
(“While a 2013 MRI revealed a ‘right paracentral disc herniation . . . Lenk presented no
evidence linking this new finding with her 2010 automobile accident. Thus, no genuine
issue of material fact stands in the way of deciding as a matter of law whether Lenk has
established an injury satisfying the tort liability threshold . . . .”). Similarly here, without any
countervailing evidence establishing a causal relationship between Garcia’s injuries and
the accident, there is nothing for the finder of fact to consider.4
Nor is the Court convinced that Garcia has created a question of material fact
surrounding the effect of his ability to lead a normal life after the accident. As the Michigan
Supreme Court explained in McCormick, a plaintiff must show that an accident-related
injury had “an influence on some of the person's capacity to live in his or her normal
manner of living.” 795 N.W.2d at 530. This inquiry “necessarily requires a comparison of
the plaintiff's life before and after the incident.” Id. The McCormick Court noted three
caveats: “(1) the plaintiff's general ability to lead his pre-accident normal life need only be

4

This analysis applies with equal force to Garcia’s tinnitus symptoms, which predated the accident in any event. See (Ex. 10, HFH-0072-0073).
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affected, not destroyed, (2) the focus is on whether the impairment affected the plaintiff's
ability to maintain his normal manner of living, not whether some of his manner of living has
itself been affected, and (3) the impairment need not be permanent.” Mehdi, 2015 WL
1227710 at *3.
Prior to the accident, Garcia maintains that he was “a typical active husband and father
of active children”, self-employed “working full time as a flooring installer”, and spending
“time grilling and socializing with his family.” (Plf.’s Resp. 11). The collision allegedly
“changed everything.” Id. More specifically, Garcia argues that he was forced to stop
working, “had to give up his family job of cooking and grilling”, could no longer “do regular
household chores like take out the garage”, and “had to give up many driving duties to his
wife . . . .” Id. at 11-12. But the record belies the bulk of these assertions. Indeed, the
Court need not look beyond Garcia’s own Facebook posts to arrive at this conclusion. On
January 31, 2015, Garcia admitted that “life is good”, he was “working 100 percent running
his own crew.” (Ex. 1, 184:7-23). Other posts, acknowledged by Garcia at his deposition,
show him participating in a family cookout, riding a train, visiting a water park, riding a fourwheeler, and taking a six-week cross-county road trip during which he and his wife did all
the driving. (Ex. 15, Facebook posts). Garcia further testified that his daily life typically
includes driving his children to school, socializing with friends, grilling for his family,
shopping for groceries and, according to his former supervisor, working as a flooring
installer on a part-time basis. See (Ex. 1, 11-12, 18-19); (Ex. 5, 38:20-24). The fact that
Garcia claims he cannot engage in shoveling snow or playing sports is immaterial absent
a showing that these activities were significant to his life prior to the accident. Andzelik v.
Auto Club Ins. Ass’n, No. 324281, 2016 WL 555854, at *3 (Mich. Ct. App. Feb. 11, 2016)
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(“There was no evidence that plaintiff participated in the group recreational activities she
mentioned, other than fishing, with frequency.”) In sum, Garcia’s argument that his “ability
to lead a normal life was affected by the accident is contradicted by the overwhelming
evidence in the record.” Skipper v. United States, 14-14281, 2016 WL 827376, at *7 (E.D.
Mich. March 3, 2016).
For all of those reasons, the Court finds that Garcia has failed to raise a genuine issue
of material fact sufficient to survive summary judgment.
IV. CONCLUSION
Accordingly, the Court hereby GRANTS the Government’s motion for summary
judgment. (Dkt. 23). This order closes the case in its entirety.

SO ORDERED.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: September 15, 2016
I hereby certify that a copy of the foregoing document was served upon counsel of record
on September 15, 2016, by electronic and/or ordinary mail.
s/Carol J. Bethel
Case Manager

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