Kelly, III v. United States of America

Filing 14

OPINION and ORDER granting Defendant's 13 MOTION for Summary Judgment. Signed by District Judge Bernard A. Friedman. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN D. KELLY, III,
Plaintiff,

Civil Action No. 18-CV-11949

vs.

HON. BERNARD A. FRIEDMAN

UNITED STATES OF AMERICA,
Defendant.
_____________________________/
OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter is presently before the Court on defendant’s motion for summary
judgment [docket entry 13]. Plaintiff has not responded to this motion, and the time for him to do
so has expired. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide this motion without a
hearing.
Plaintiff alleges that on October 12, 2016, he was injured when a mail carrier
negligently backed a mail delivery truck into him, causing him to fall onto the pavement. Plaintiff
alleges that his injuries “constitute a serious impairment of body function” under Michigan’s nofault act. Compl. ¶ 15. He seeks damages and attorney fees from the United States under the
Federal Tort Claims Act (“FTCA”).
Defendant argues that it is entitled to summary judgment because plaintiff did not
suffer any injuries that are serious enough to constitute a “serious impairment of body function.”
The Court recently stated the legal standards applicable in such cases as follows:
Pursuant to Federal Rule of Civil Procedure 56, the Court will grant
summary judgment if “the movant shows that 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); see also Pittman v.

Cuyahoga County Dep’t of Children & Family Servs., 640 F.3d 716,
723 (6th Cir. 2011). A fact is material if it might affect the outcome
of the case under governing law. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). In determining whether a genuine issue of
material fact exists, the Court assumes the truth of the non-moving
party’s evidence and construes all reasonable inferences from that
evidence in the light most favorable to the non-moving party. See
Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006). In response
to a summary judgment motion, the opposing party may not rest on
its pleadings, nor “rely on the hope that the trier of fact will
disbelieve the movant’s denial of a disputed fact but must make an
affirmative showing with proper evidence in order to defeat the
motion.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009)
(internal quotations omitted). 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.
[Plaintiff] seeks non-economic damages resulting from the car
accident under MCL 500.3135, the Michigan No Fault Act. 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). Tort liability for non-economic loss under the
Michigan No-Fault Act is limited to cases in which an injured 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.” MCL
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.”
MCL 500.3135(5); McCormick v. Carrier, 795 N.W.2d 517, 524
(2010). “[T]he threshold question whether the person has suffered a
serious impairment of body function should be determined by the
court as a matter of law as long as there is no factual dispute
regarding ‘the nature and extent of the person's injuries’ that is
material to determining whether the threshold standards are met.” Id.
at 525 (citing MCL 500.3135(2)(a)).
To be “objectively manifested,” the impairment must be “evidenced
by actual symptoms or conditions that someone other than the injured
person would observe or perceive as impairing a body function.”
McCormick, 795 N.W.2d at 527. To satisfy the “objective
manifestation” prong, there must be a physical basis to support the
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subjective complaints of pain and suffering, which generally requires
medical testimony. See McCormick, 795 N.W.2d at 528; see also
Reed v. Jones, No. 2:16-CV-34, 2016 WL 6871183, at *1 (W.D.
Mich. Nov. 22, 2016).
Moreover, the plaintiff must “demonstrate a causal relationship
between his injury and the accident.” Lopez-Garcia v. United States,
207 F. Supp. 3d 753, 759 (E.D. Mich. 2016) (citing Mehdi v.
Gardner, No. 319630, 2015 WL 1227710, at *2 (Mich. Ct. App.
March 17, 2015)).
Bayley v. United States, No. CV 17-11942, 2018 WL 4901153, at *2-3 (E.D. Mich. Oct. 9, 2018).
The evidence in this matter plainly shows that plaintiff’s injuries from the October
12 accident were not serious enough to be actionable under the no-fault act. And to the extent
plaintiff has impairments, he has not shown that they were caused by the accident, as his medical
records show that they were preexisting, degenerative conditions.
After the accident, plaintiff went home and took a nap. Def.’s Ex. 4. Afterwards,
he sought emergency room treatment for pain in his elbows and right hip. Id. X-rays were negative.
Plaintiff was given a “[w]ork note for 2 days” and ibuprofen. The diagnosis was “[m]uscle spasm.”
Id.
Nine days after the accident, plaintiff saw his primary care physician and
“[c]omplain[ed] of low back pain,” which he described as “dull.” Def.’s Ex. 8. Plaintiff was
diagnosed with osteoarthritis, lumbago, and muscle spasm of his back. Id. These are the same
complaints and diagnoses noted by this physician’s office from plaintiff’s visits in June 2016,
August 2016, and September 2016. See Def.’s Exs. 5-7. Plaintiff was advised to “[r]efrain from
activities that aggravate back pain.” Def.’s Ex. 8. The same complaints and diagnoses were noted
in February 2017. See Def.’s Ex. 9.
Two weeks after the accident, plaintiff sought treatment at Concentra Medical
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Centers, complaining of pain in his right hip, both elbows, and lower back. Def.’s Ex. 10. Plaintiff
was diagnosed with contusion of his lower back, strain of his lumbar region, and contusion and
sprain in his right hip. He was prescribed six physical therapy sessions and advised to use heat and
ice. Id.
Approximately six weeks after the accident, plaintiff received a consultation from
US MedGroup. Def.’s Ex. 11. His “chief complaint [was] radiating pain from the back into the leg
with numbness and tingling, onset of symptoms was on 10/12/2016.” Id. The physician suspected
lumbar radiculopathy and ordered an MRI of plaintiff’s lumbar spine. Id. An MRI conduced shortly
thereafter showed
L4-5 mild disc bulge. Disc dehydration. Likely chronic.
Negative for neurally compressive disc displacement throughout
lumbar spine.
Negative for acute osseous stress injury or acute stress fracture.
Id. A board-certified radiologist, Dr. Khalik, who reviewed this MRI at defendant’s request, opined
that
the original authored radiology report and my evaluation of the MRI
examination of the lumbar spine failed to reveal evidence of an
objective finding to suggest objective acute injury of the lumbar spine
(as well as the visualized lower thoracic spine) as a result of the
motor vehicle versus pedestrian accident of October 12, 2016. Only
age-appropriate (44 years old in 2016) chronic longstanding
degenerative changes are identified within the lumbar spine.
Degenerative changes are part of the “normal ageing process” . . . .
Therefore, the degenerative changes at the L4-L5 level described
above would be part of the “normal aging process” for the claimant’s
age of 44 years old.
Def.’s Ex. 15.
Plaintiff also underwent two independent medical examinations, one in February
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2017 at the request of the worker’s compensation carrier (Def.’s Ex. 13), and another in August 2019
at defendant’s request (Def.’s Ex. 14). The first concluded that “there was no pathology related to
the date of injury,” that “osteoarthritic changes in the spine as seen on MRI . . . are incidental
findings and unrelated to the date of injury,” and that plaintiff “is able to return to work at full duty,
without restrictions.” Def.’s Ex. 13. Similarly, the second concluded that “[t]here do not appear to
be any objective findings that correlate with this individual’s subjective complaints” and that the
October 2016 accident “may have resulted in some sprains, strains, and contusions, but there is no
evidence to suggest any residual pathology.” Def.’s Ex. 14.
On this record, plaintiff has no cause of action under the no-fault act because he has
no “serious impairment of a body function” that is “objectively manifested,” as required by the
Michigan Supreme Court’s decision in McCormick. The medical evidence, which plaintiff has
failed to counter and is therefore “undisputed for purposes of the motion,” Fed. R. Civ. P. 56(e)(2),
shows no impairment of any kind that can be linked to the October 2016 accident. Rather, the
evidence shows conclusively that plaintiff has degenerative changes in his lumbar spine that are the
result of the aging process (and which were noted repeatedly in plaintiff’s medical records before
the accident), not trauma traceable to the accident. Because plaintiff has no claim under the no-fault
act, he has no claim against the United States under the FTCA. Accordingly,

IT IS ORDERED that defendant’s motion for summary judgment is granted.

Dated: October 31, 2019
Detroit, Michigan

s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
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