Dean v. United States
| Decision Date | 22 June 2020 |
| Docket Number | Case Number 19-10210 |
| Parties | CHRISTINA DEAN, Plaintiff, v. UNITED STATES OF AMERICA, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Honorable David M. Lawson
Plaintiff Christina Dean filed this case under the Federal Tort Claims Act to recover damages for injuries she says she sustained in an automobile accident with a federal employee. The government has moved to exclude the testimony of the physicians who treated her after the accident, who will testify about causation. Without the testimony linking the injuries to the accident, the government reasons, the plaintiff has no case and the government is entitled to summary judgment. The plaintiff moves for partial summary judgment on liability, contending that the government driver's failure to yield at an intersection controlled by a stop sign amounts to negligence as a matter of law. The motions are fully briefed and oral argument will not aid in their disposition. The plaintiff's treating physicians' opinions on causation plainly are admissible in evidence, and fact questions preclude summary judgment for either side at this stage of the case. Therefore, the Court will deny the motions.
The basic circumstances of the automobile accident are undisputed. On August 18, 2016, United States Border Patrol Agent Kevin Brewer was driving his officially issued vehicle northbound through Port Huron Township on 15th Street and stopped at the intersection of Court Street. That intersection is controlled by stop signs for 15th Street in both directions, allowing drivers on Court Street the right-of-way. Plaintiff Christina Dean was driving westbound on Court. After Brewer stopped at the stop sign, he proceeded into the intersection, where his vehicle was struck by Dean. The police report of the accident noted that Brewer blamed "heavy fog" as the reason he did not see Dean's car approaching before proceeding and failing to yield. The responding officer issued a warning to Brewer for failure to yield the right of way.
Beyond those basic facts, the parties' accounts diverge in some respects.
Photographs at the scene on the morning of the accident show a light fog in the area, but the four corners of the intersection and the intersecting streets are visible for some distance from the photographer's position. Dean testified that when the accident occurred, the "fog was lifting" and she could "see quite clearly" while driving. She was able to see well past the accident intersection, at least the length of a football field. The accident occurred after sunrise when it was light outside, and Dean clearly saw Brewer's vehicle as she approached the intersection.
Dean had the right of way as she approached the intersection with no stop or yield signal. Dean testified that she was traveling at or under the speed limit, which is 30 miles per hour at the location. However, she first saw Brewer's vehicle just before the collision, as it emerged from behind a bush that obscured Dean's view of the stop sign on 15th Street, and she "slammed on her brakes" when she saw that a collision was imminent. Brewer's vehicle already was in the intersection when Dean first spotted it, and the collision was unavoidable even though Brewer accelerated in an attempt to clear the right of way before Dean's car hit his.
Dean testified that the headlights on her car were automatic and would turn on and off by themselves based on the ambient light level, but she presumed that they were off when the accident happened because it was light out.
Brewer was on his way to talk to a person about his immigration status when he was proceeding north on 15th Street and stopped at the stop sign at the Court Street intersection. After coming to a stop, Brewer says he looked left and right down Court Street and saw no other cars coming. However, as he proceeded into the intersection, Brewer saw Dean's car for the first time as it was "emerging from the fog" 20 to 30 feet away. Brewer accelerated, trying to clear the intersection, but it was too late, since he had only spotted Dean's car one or two seconds before the imminent collision. Brewer says that his vehicle was moving only 10-15 miles per hour when he first spotted Dean's car, but Dean was traveling, by Brewer's estimate, 35 miles per hour, and her headlights were off. Brewer attested that the fog depicted in crash scene photos was not as heavy as at the time of the accident, because it took the police 15 to 20 minutes to arrive, and the fog had "rapidly dissipated" during that time.
The plaintiff's medical history following the accident is well documented. Although the defendant disputes the significance of some aspects of the treatment and the severity of the alleged impairments, the course of treatment that she received in the months and years following the accident is not in serious dispute.
An ambulance was called to the scene of the accident where it was noted that the plaintiff complained of right knee pain. She was transported to the hospital where doctors noted "paraspinal tenderness and spasms." She was prescribed Norco, Baclofen, Flexeril, and Fluoxetine. On August 22, 2016, plaintiff was seen by her family physician, Dr. Scott McPhilimy, who noted thatshe had a limited range of lumbar motion and bruising on her right knee. She also complained of headaches and stated that she had hit her head on the window during the vehicle impact. On September 6, 2020, the plaintiff was seen by her neurosurgeon, Dr. Manouchehr Nikpour, who noted that she had right foot weakness, decreased lumbar strength and range of motion, and difficulty performing a tiptoe-heel walk. Dean complained during that visit that she was unable to perform any of her usual daily activities and had limited mobility.
Dean continued to have "popping," "locking," and "giving way" in her right knee, and she was seen by an orthopedic surgeon in October 2016, who "noted tenderness to palpation of the medial joint line and pes bursa and positive Apley Compression and McMurray signs." The orthopedic surgeon diagnosed Dean with bursitis and prescribed anti-inflammatory medication and corticosteroid injections for her back. In October and November 2016, Dr. Nikpour performed three epidural blocks at L4-5, which resulted in only temporary relief from the back pain. Dean also was prescribed physical therapy in February 2017, which was ineffective. By March 2017, noting that the plaintiff "could not tolerate the pain," Dr. Nikpour recommended surgery. In April 2017, he performed a decompressive laminectomy at L4-S1, foraminotomy and discectomy at L4-5, and fusion at L4-S1. The surgery initially provided some relief from Dean's neck and back pain, but over the ensuing months Dr. Nikpour noted that Dean continued to have sciatic tenderness and could not sit or stand for very long. She also had recurring and increasingly intolerable neck and back pain. Eventually, in late 2019, Dr. Nikpour performed a second surgery with several disc fusions in Dean's cervical spine.
The plaintiff testified that she worked at the Saint Clair County Health Department before the accident, where her duties included checking patients in and out, performing lab tests, preparing billings, and assisting patients. Immediately after the accident she missed one week ofwork, and after the April 2017 surgery she was out of work to recover for six months. She also missed three months of work after the 2019 neck surgery. After the 2017 surgery, the plaintiff was prescribed 24-hour attendant care while recovering at home, and her daughter was required to help her with dressing, showering, changing bandages, household chores, and driving for around three months during the recovery. After the accident, the plaintiff attested that she cannot go dancing or bowling as she used to, cannot attend concerts or any event where she has to stand for long periods of time, is unable to tolerate amusement park rides, and cannot lift or carry, or lie on the floor and wrestle with her grandchildren as she used to before the accident. The plaintiff also testified that she cannot sit for more than an hour and has difficulty cooking and shopping because of her limited standing endurance and reduced lifting capacity.
On January 22, 2019, the plaintiff filed her complaint pleading claims of negligence, owner liability, and respondeat superior liability under Michigan law via the Federal Tort Claims Act.
The government contends that the plaintiff's medical experts' opinions are unreliable and must be excluded. Without those opinions, the government reasons, the plaintiff cannot prove that her back and neck injuries were caused by the accident, and therefore the defendant is entitled to summary judgment as a matter of law. The government offers other arguments to support its motion, but the main attack is directed to the plaintiff's medical experts, so that's where we will begin.
The plaintiff's treating neurosurgeon, Dr. Manouchehr Nikpour, had performed surgery on the plaintiff three years before the accident. And he performed surgery following the accident in this case, basing his causation opinion on the longitudinal course of treating the plaintiff for severalyears. The government contends that Dr. Nikpour's opinion that the injuries he treated were caused by the accident must be excluded as unreliable because he admitted at his deposition that he was not aware of treatment the plaintiff received from her family practice doctor, Dr. Scott McPhilimy, in the interim between visit to Dr. Nikpour in July 2915 and the date of the accident. The government argues that Dr. McPhilimy's opinion must be excluded because ...
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