Paisley v. Waterford Roof Truss, Ltd.

• Decision Date: 11 July 1997
• Docket Number: Civil Action No. 96-40223.
• Citation: 968 F.Supp. 1189
• Parties: Erol PAISLEY, Plaintiff, v. WATERFORD ROOF TRUSS, LTD., and Ronald Nmi Hollingsworth, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

968 F.Supp. 1189

Erol PAISLEY, Plaintiff, v.WATERFORD ROOF TRUSS, LTD., and Ronald Nmi Hollingsworth, Defendants.

Civil Action No. 96-40223.

United States District Court, E.D. Michigan, Southern Division.

July 11, 1997.

Danielle S. Yatooma, Southfield, MI, for Plaintiff.

Mary Catherine Rentz, Detroit, MI, for Defendant.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

GADOLA, District Judge.

This negligence action was filed on June 2, 1996 by plaintiffErol Paisley against defendantsWaterford Roof Truss, Ltd. and Ronald NMI Hollingsworth.Plaintiff seeks noneconomic damages under the Michigan No-Fault Insurance Act, Mich. Comp. Laws § 500.3135, for injuries which allegedly arose out of a motor vehicle accident.Presently before this court is defendants' motion for summary judgment filed on March 21, 1997.For the following reasons, defendants' motion will be granted.

FACTS

This litigation stems from an incident which occurred on or about December 29, 1993, at approximately 4:00 p.m. while plaintiffErol Paisley was operating a taxi cab eastbound on I-94 at or near the intersection of Mt. Elliot in the City of Detroit, Michigan.Plaintiff maintains that on that date and at that time he was driving alongside a tractor-trailer rig driven by defendantRonald NMI Hollingsworth, an employee-driver for defendantWaterford Roof Truss, Ltd.A piece of metal was allegedly protruding from the underside of defendants' vehicle and tearing apart pieces of cement from the road.One such piece of cement, so plaintiff alleges, landed atop defendants' tractor-trailer, fell off defendants' vehicle, and ultimately plummeted through the windshield of plaintiff's vehicle.¹Plaintiff alleges that the piece of cement struck him in the left jaw and neck area, causing him severe injuries.

On the night of the incident, plaintiff was taken to the Port Huron Hospital emergency room via ambulance.An x-ray examination of the cervical spine, facial bones, mandible and chest were negative.Plaintiff was diagnosed as having an "acute left facial contusion" and a "2 cm laceration."(Port Huron Hospital Emergency Center Record of12/30/93, at 1).The laceration was repaired with three sutures.

On January 10, 1994, plaintiff visited Dr. Steven Dorfman, a chiropractor, complaining of "severe pain and stiffness throughout his neck and midback regions, as well as jaw and facial pain and left shoulder discomfort."(Letter from Dr. Dorfman to Bohnenstiehl of5/2/94, at 1).A structural examination of plaintiff revealed to Dr. Dorfman the following: (1) reduction in the normal range of motion in cervical flexion, extension, as well as left and right rotation and left and right lateral flexion; (2) reduction in the range of motion of the dorsal spine in flexion, extension, as well as left and right rotation; and (3) objective muscle spasms throughout the entire dorsal and cervical spines.An x-ray was taken, showing that plaintiff sustained no fractures or dislocations.The x-ray revealed, however, that plaintiff"demonstrated an inability to flex and extend the cervical spine in the proper manner," as well as "a moderate degree of degenerative changes [] throughout the cervical. spine."(Letter from Dr. Dorfman to Bohnenstiehl of5/2/94, at 2).Dr. Dorfman's diagnosis was "severe and chronic interligamentous cervical-dorsal sprain" and "possible temporomandibular joint dysfunction"("TMJ dysfunction-" or "jaw dysfunction").(Letter from Dr. Dorfman to Bohnenstiehl of5/2/94, at 3).Plaintiff's prognosis was "guarded."(Letter from Dr. Dorfman to Bohnenstiehl of5/2/94, at 3).He was advised to abstain from any physical activities which included excessive lifting, pushing, pulling or reaching.Overall, Dr. Dorfman administered 26 chiropractic treatments (e.g., hot packs and manipulation) from January through May, 1994.²

On January 11, 1994, plaintiff was seen by Dr. Sheldon Rocklin, DDS, FICCMO for "pain when eating, neckaches and daily headaches."(Letter from Dr. Rocklin to Bohnenstiehl of9/29/94, at 1).Dr. Rocklin's diagnosis was arthromyalgia, asymmetrical motor neuropathy, atypical facial pain, cephalgia (a.k.a. headaches), crepitus of the temporamandibular joint, myalgia, myofascial pain dysfunction, myoneural disorder,³ myositis,⁴ otalgia (a.k.a. earache), tinnitus (a.k.a. ringing in the ears) and traumatic arthropathy.⁵His prognosis was that "changes in the sensory motor mechanism have been altered on a long-term basis creating an [sic] habitual dysfunctional pattern."(Letter from Dr. Rocklin to Bohnenstiehl of9/29/94, at 3).He also noted that "the internal arrangement of the temporamandibular joint has been permanently altered with the dislocation of the disk, accompanied by the stretching and/or tearing of the attached ligaments."(Letter from Dr. Rocklin to Bohnenstiehl of9/29/94, at 3).Dr. Rocklin treated plaintiff on ten occasions from January, 1994 through May, 1995.

On January 14, 1994, plaintiff visited Henry Ford Hospital's Emergency Room complaining chiefly of pain in his left shoulder area and pain in the left side of his jaw.(Report of Dr. Ashok Gupta of1/14/94, at 2).X-rays of the skull, facial bones and mandible were negative.Examination of plaintiff by Dr. Ashok Gupta showed that he was "able to open and close his mouth adequately" and that "side to side jaw movement" was "normal."(Report of Dr. Ashok Gupta of1/14/94, at 2).Plaintiff also was found by Dr. Gupta to have "complete range of movements" in his "right and left shoulder."(Report of Dr. Ashok Gupta of1/14/94, at 2).He was given a prescription for Motrin and instructed to apply a heating pad.He was also told to avoid all heavy lifting with his left arm.

On March 1, 1994, plaintiff saw Dr. Christian at the Oral and Maxillofacial Surgery Department at Henry Ford Hospital.He complained of pain in his left jaw, especially when chewing.Plaintiff denied that there was any "popping or clicking" of his jaw.(Report of Dr. Christian of 3/1/94).He was clinically examined and found to "have no fractures of the facial bones or upper extremities" and "unrestricted movement of the neck."(Report of Dr. Christian of 3/1/94).A radiographic examination showed "some mild flattening of the left TMJ."(Report of Dr. Christian of 3/1/94).Plaintiff was instructed to rest the jaw by using a liquid to extremely soft diet for 2-4 weeks.

On February 20, 1995, plaintiff visited Henry Ford Hospital for shoulder pain.A physical examination revealed that plaintiff had "full range of motion on the left shoulder, with 180 degrees of flexion, 180 degrees movement on abduction, and full 90 degrees internal and external rotation."(Henry Ford Hospital Report of2/22/95, at 1).He was "able to touch approximately T5 with his thumb behind his back on both right and left arms."(Henry Ford Hospital Report of2/22/95, at 1).An ultrasound and MRI were recommended.He was given Motrin for his pain and told to follow-up with the clinic after the tests.

Plaintiff underwent an ultrasound of the left shoulder and MRI of his neck, then returned to Henry Ford Hospital on May 1, 1995.He complained of pain in his left shoulder area during this visit.An examination revealed that plaintiff had "good range of motion, forward flexion and abduction 180 degrees, external rotation 60 degrees bilaterally, internal rotation to approximately T10 bilaterally."(Henry Ford Hospital Report of5/4/95, at 1).Yet, the ultrasound left impressions of muscle tears⁶ and "rotator cuff tendinitis."(Henry Ford Hospital Report of5/4/95, at 1).Plaintiff was given a prescription for physical therapy.Operative intervention was not considered necessary at that time.

On July 10, 1995, plaintiff was re-checked at Henry Ford Hospital.At that time, he complained of a new pain in his right shoulder.However, he stated that physical therapy was helping "slightly" with the pain in his left shoulder.(Henry Ford Hospital Report of7/12/95, at 1).He was examined and found to have "good range of motion on his cervical spine."(Henry Ford Hospital Report of7/12/95, at 1).He could "forward flex both arms to 180 degrees" and "abduct to 180 degrees bilaterally."(Henry Ford Hospital Report of7/12/95, at 1)."External rotation [was] 75 degrees bilaterally, internal rotation to T5 on the right and T7 on the left."(Henry Ford Hospital Report of7/12/95, at 1).He was instructed to continue with physical therapy for eight weeks.

At his deposition on February 6, 1997, plaintiff was questioned about the problems which plague him today and which he attributes to the accident.He stated that he currently suffers from ringing in his ears and pain in his shoulder.He testified that he could no longer afford to play cricket and that at times, he must use his right hand and not his left.

On March 21, 1997, defendants filed a motion for summary judgment, raising two separate and independent grounds for dismissing this action.Defendants assert that plaintiff's claim for non-economic loss is precluded by Michigan's No-Fault Insurance Act.In the alternative, defendants insist that plaintiff cannot meet his burden of proving causation, an essential element of his case.Each argument will be addressed seriatim.

DISCUSSION

1.Summary Judgment

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.""A fact is `material' and precludes grant of summary judgment if proof of that fact would have [the] effect of establishing or refuting one of the essential elements of the cause of action or defense asserted by the parties, and would necessarily affect [the] application of appropriate principle[...