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Harms v. United States

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

August 24, 2017


          Anthony P. Patti Magistrate Judge.



         Plaintiff Carmelita Harms was stopped on I-94 in Michigan when her vehicle was rear-ended by a vehicle driven by Federal Bureau of Investigation Agent Mark Davidson. Harms asserts that the impact caused or exacerbated neck and back injuries and has sued the federal government pursuant to the Federal Tort Claims Act. For the reasons set forth below, Defendant's motion will be granted in part and denied in part.


         The summary-judgment record reflects the following facts. Where there are disputes, the Court views the facts in the light most favorable to Plaintiff, the non-moving party.


         In February 2005, Harms began working as a custodian at Centerline Schools. (R. 24-2, PID 135.) According to the job description, the position required the ability to “frequently lift and/or move upwards of 90 pounds” and to “sometimes” use “ladders/lifts/scaffolds” and work at “heights upwards of 90 feet.” (R. 24-3, PID 160.) According to Harms' deposition testimony, during the school year “you just sweep, mop, vacuum, take out garbage, ” but “in the summertime, it's more harder, it's lifting furniture, moving furniture, using big, heavy machines.” (R. 24-2, PID 145.)

         In September 2009, Plaintiff fell at work and was subsequently treated for wrist, ankle, shoulder, neck, and back pain by Dr. Walter Klimkowski at St. John Oakland Hospital. (R. 24-4, PID 161.) She was diagnosed with “cervical strain.” (Id.) Plaintiff continued to experience pain for several years. (See R. 24-4.)

         But Harms' continuing issues were not in her neck. In November 2009 she was treated for a “lumbar strain, ” (Id. at PID 164), treated for a “flare up of chronic back pain, ” (R. 27-3, PID 462) and given work restrictions. On August 23, 2010, she was treated for another “lumbar muscle strain” (Id. at PID 169) with related work restrictions. Shortly before this, on August 8, 2010, she reported “lower back pain into leg” in a health history form. (R. 24-4, PID 171.) In August 2011, Plaintiff reported lumbar pain radiating into her leg. (Id. at PID 172.) By September 2011, Plaintiff rated her pain as a “6/10” and reported that she had difficulty lifting and walking. (R. 24-4, PID 174.) Plaintiff was also in physical therapy at this time. (Id. at PID 176.) A September 2011 MRI of Plaintiff's spine revealed “[d]isk [sic] herniation . . . asymmetric to the left causing moderate left sided central canal stenosis. This disc herniation appears to contact the exiting left nerve root.” (R. 24-5, PID 182.) After being discharged from physical therapy, Plaintiff continued to take pain medication and muscle relaxers. (R. 24-4, PID 177.) At a February 3, 2014 physical with Dr. Walter Klimkowski, Plaintiff reported “back pain, described as dull and aching, starting 4 years ago.” (R. 24-4, PID 179.) Klimkowski noted sciatica on Plaintiff's chart, and instructed her to visit the ER if the pain became worse. (Id. at PID 180.)


         On February 19, 2014, Plaintiff was driving a 2010 Ford Fusion on Interstate 94 with her husband in the passenger seat. (R. 24-2, PID 136.) Both were wearing seatbelts. (Id.) Traffic was stop and go, at least in Harms' lane. (Id.) Harms observed a car swerve into her lane moving “very fast.” (Id.) The car did not slow down and rear ended Harms' car. (Id.) The other driver was Mark Davidson, an FBI agent. (R. 26-4, PID 324.) He testified that he was traveling at approximately 45 to 50 miles per hour when he hit Harms' vehicle. (Id. at PID 325.) Harms, her husband, and Davidson exited their respective vehicles, and Davidson apologized, saying that he “dropped [his] phone.” (R. 24-2, PID 136.)

         Harms' husband testified that Harms had left approximately six feet between her vehicle and the vehicle in front of her, and so her Fusion merely “bumped” that vehicle. (R. 24-8, PID 210.) Post-accident photos of the front of the Fusion show that it sustained a crack in its front bumper. (R. 26-2.) The back of the Fusion sustained more damage. Post-accident photos show that the back windshield shattered completely, and the right side of the trunk and bumper crumpled inward. (R. 26-2.) The State of Michigan Traffic Crash Report stated that there were “[n]o reported injuries, ” those at the scene refused medical treatment, and that only Davidson's airbags deployed. (R. 24-11, PID 216-17.) Harms testified that although her knees were hurting her immediately after the accident, she did not seek medical attention and just drove home after the accident because the officer told her that she could leave. (R. 24-2, PID 140.) Harms spent the remainder of the day resting at home. (Id.)

         By the next morning, Harms' “whole body was hurting, ” and she went to the emergency room later that day. (Id.) According to the ER Report, Harms presented with “[complaints] of neck pain, thoracic spine pain and lumbar spine pain along with bilateral rib pain. . . . The character of symptoms is achy. The degree at onset was moderate. The degree at present is moderate.” (R. 24-12, PID 221.) The Report noted that Harms' neck had some tenderness, and her back had “normal” range of motion. (Id. at PID 223.) An x-ray of Harms' back was taken, which revealed “Mild osseous degenerative changes without osseous fragmentation[.]” (Id. at PID 224.) The report also noted that Harms “refused pain medication in ED.” (Id. at PID 224.) Harms was discharged with instructions to follow up with Klimkowski within a week, return to ER “as needed, ” and follow up with the orthopedic department “if pain doesn't improve 7-10 days.” (Id. at PID 225.)

         Harms went back to Klimkowsi's office on February 24, 2014. (R. 24-7, PID 195.) At that time, her “chief complaint” was “f/u [follow-up] from car accident, R ankle pain, heard pop yesterday[.]” (R. 24-7, PID 195.) As to the accident, she denied head injury but reported “headache since: frontal area, ” that she went to ER but “xrays didn't show anything, ” and that she was experiencing right shoulder and right neck pain. (Id.) As to her ankle, Harms told Klimkowsi, “I fell Sunday night - I stepped off a curb and I felt the worst pain ever shoot from my left foot to my lower back and then my right leg gave out and I fell. Now my right ankle hurts and my foot is cold and tingling up to my knee.” (Id.) She rated her pain at ¶ 10. (Id.) Klimkowski concluded, “The symptoms resulted from a fall.” (Id.) Klimkowski ordered Vicodin for the ankle pain and gave Harms a note to keep her off work until March 25, 2014. (Id. at PID 201.)

         Harms returned to Klimkowski's office on March 7, 2014 for a follow up. Her “chief complaint” was “f/u [follow up] for ankle” and “lower/middle back pain, increasingly worse.” (R. 24-7, PID 201.) At this visit, Klimkowski referred Harms to physical therapy. (R. 24-7, PID 203.)

         Harms returned again on March 19, 2014. (Id. at PID 204.) This time, her “chief complaint” was “back pain, increasingly worse since MVA.” (Id.) She reported that she had taken Motrin “almost everyday since the accident and still has back pain.” (Id. at PID 204.) She stated that the pain was a 6/10 at worst, an average of 4/10, and 2/10 at the lowest, but it “never totally goes away.” (Id.) Klimkowski ordered an MRI of Harms' thoracic and lumbar spine. (Id.)

         In April 2014, on Klimkowski's referral, Harms began treating with Dr. Walter Kornblum. Harms filled out a “Lower Back/Cervical Spine Questionnaire” on April 9, 2014. (R. 24-14, PID 227.) She reported that she had no history of neck pain, but had a history of back pain-“had a pulled disc in lower back 4 years ago did physical therapy and it went away.” (Id.) In her “History of Present Illness Form, ” she reported that her back pain stemmed from an injury where she “was hit from behind by another car as we were stopped on freeway and I hit a car in front of my car.” (Id. at PID 228.) Kornblum ordered an MRI of Harms' cervical spine. (R. 24-15, PID 233.) That MRI revealed “Reversal of the spinal curvature, possibly associated with injury. . . . C3-C4 and C4-C5: Disc bulges, compressing the ventral thecal sac. . . . C6-C7: A posterior disc herniation (protrusion type), compressing the ventral thecal sac.” (Id.)

         By June 9, 2014, Plaintiff's lumbar pain was at ¶ 1/10 and she returned to work without restrictions. (R. 24-14, PID 231-32.) Harms characterized this relief as temporary-she testified that she got help from coworkers upon her return to work and that the pain never really went away. (R. 24-2, PID 145-46.) Plaintiff continued to work full time until November 2014. (R. 24-2, PID 146.) She stopped because she “couldn't do it anymore, ” but she admits that she did not ask for any accommodations and has not sought other employment since then. (Id.)

         Kornblum performed a spinal fusion surgery on Plaintiff's neck and back in May and June 2015. (R. 24-6, PID 188.) He testified that Plaintiff could potentially return to her custodian job at some point, but that he would send her for a functional capacity test first. (R. 24-6, PID 190.) Harms underwent another spinal fusion on March 24, 2016. (R. 24-16, PID 238.) However, Harms reported on September 15, 2016, that her lumbar spine is no better since surgery and her neck has been worse since surgery. (Id. at PID 238.)

         Harms filed an application for Social Security Disability, which was ultimately denied. (R. 24-18, PID 243.) Harms testified that she can still care for her own personal needs, perform some household chores, do some shopping (sometimes with a motorized cart), and go on a few vacations. (R. 24-2, PID 146, 148, 151-54.) However, Harms testified that her activities were limited during those trips due to her neck and back issues. (Id. at PID 151-54.)

         Harms filed suit in this Court on September 11, 2015, naming the United States as Defendant. (R. 1.) She claims that “as a consequence of the collision, ” she suffered injuries leading to “permanent injury and incapacity of disability.” (R. 24, PID 111.)

         Defendant moves for summary judgment. The Court heard argument on the summary-judgment motion on June 6, 2017. The Court subsequently scheduled a Daubert hearing regarding the opinion of Dr. Kornblum, but ultimately cancelled it when Kornblum was unable to appear several times.


         “The court shall 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). The moving party may discharge its initial summary judgment burden by “pointing out to the district court . . . that there is an absence of evidence to support the nonmoving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party does so, the party opposing the motion “must come forward with specific facts showing that there is a genuine issue for trial.” Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court must determine whether the evidence presents a sufficient factual disagreement to require submission of the challenged claims to a jury, or whether the evidence is so one-sided that the moving party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).


         Harms brings this suit pursuant to the Federal Tort Claims Act (“FTCA”). Generally, sovereign immunity provides a full defense for any federal government entity, agency or employee. Premo v. United States, 599 F.3d 540, 544 (6th Cir. 2010). However, pursuant to the FTCA, the United States Government has consented to be sued

for money damages . . . for . . . personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1); see also Premo, 599 F.3d at 544 (6th Cir. 2010) (citing Richards v. United States, 369 U.S. 1, 6 (1962)). The term “employee of the Government” includes “officers or employees of any federal agency.” Logue v. United States, 412 U.S. 521, 526 (1973). Here, it is not disputed that Harms may proceed under the FTCA.

         Because the FTCA does not create a cause of action in itself, courts apply a two-step analysis to determine liability and damages. First, “the district court applies local law to determine liability and to assess damages.” Premo, 599 F.3d at 545 (quoting Palmer v. United States, 146 F.3d 361, 366 (6th Cir. 1998)). Second, “federal law is invoked to bar proscribed recoveries, such as punitive damages.” Id. “[L]ocal law” means the law of the state where the accident occurred. Brown v. United States, 583 F.3d 916, 920 (6th Cir. 2009). In this case, the accident in question occurred on a Michigan highway and therefore, Michigan law governs this Court's determination of liability and damages. Under Michigan's No-Fault Act, “tort liability for non-economic loss arising out of the ownership, maintenance, or use of a qualifying motor vehicle is limited to a list of enumerated circumstances.” McCormick v. Carrier, 795 N.W.2d 517, 523 (Mich. 2010) (citing Mich. Comp. Laws § 500.3105(3)). And the Act defines a threshold requirement for any such action in tort: “the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.” Mich. Comp. Laws § 500.3135(1); see also Horan v. Brown, 384 N.W.2d 805, 806-07 (Mich. 1986). The statute defines “serious impairment of body function” as “an objectively manifested impairment of an important body function that affects the person's general ability to lead his or her normal life.” Mich. Comp. Laws § 500.3135(5). As the Michigan Supreme Court explained in McCormick, “On its face, the statutory language provides three prongs that are necessary to establish a ‘serious impairment of body function': (1) an objectively manifested impairment (2) of an important body function that (3) affects the person's general ability to lead his or her normal life.” 795 N.W.2d at 526.

         Although the statute provides a framework for determining whether a claimant has suffered a serious impairment of bodily function or permanent serious disfigurement, see Mich. Comp. Laws § 500.3135(2), it is unclear whether this framework has any application in federal court. In a diversity case, for example, under the Erie doctrine, the federal court would “apply Michigan state substantive law and federal procedural law.” Lofgren v. AirTrona Canada, No. 16-1804, ___ F.App'x ___, 2017 WL 384876, at *3 (6th Cir. Jan. 27, 2017) (citing Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). The Sixth Circuit has already found that part of this framework-the portion of § 500.3135(2)(a)(ii) that specifies when a “question of fact for the jury is created” on the issue of closed head injuries-is a procedural rule that a federal court should not apply in lieu of Federal Rule of Civil Procedure 56 when sitting in diversity. See Shropshire v. Laidlaw Transit, Inc., 550 F.3d 570, 573 (6th Cir. 2008). Yet the Court's observations in reaching that conclusion appear to suggest that the Court viewed all of subsection (2)(a) as procedural rather than substantive. Id. (“It appears from the language of the closed-head injury provision, and, for that matter, subsection (2)(a) as a whole, that its purpose is to allocate decision-making authority between the judge and jury, a quintessentially procedural determination.” (emphasis added)); see also Barlow v. Adams, 398 F.App'x 164, 165 (6th Cir. 2010) (holding that the district court should have applied Rule 56 instead of subsection 2(a) as the summary-judgment standard). Moreover, the parties cite general negligence law instead of the statutory framework. See, e.g., Black v. Shafer, 879 N.W.2d 642, 642 (Mich. 2016) (“(1) the defendant owed a duty to the plaintiff, (2) the ...

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