United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
JAMES T. MOODY, District Judge.
Plaintiff Lee Ann Kopey brought this action alleging that defendant Jamie Brown, an uninsured motorist, negligently caused an automobile collision in which Kopey suffered personal injuries, and against her own insurer, Progressive Paloverde Insurance Company ("Progressive"), alleging that it has refused to comply with the terms of her uninsured motorist coverage. Progressive has moved for a summary judgment in its favor, (DE #17), and moved to strike a request for sanctions made by plaintiff Kopey. (DE #22.)
I. Legal Standard
Summary judgment must be granted when "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). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Not every dispute between the parties makes summary judgment inappropriate; "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. To determine whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). A party opposing a properly supported summary judgment motion may not rely merely on allegations or denials in his or her own pleading, but rather must "marshal and present the court with the evidence she contends will prove her case." Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). If the nonmoving party fails to establish the existence of an essential element on which he or she bears the burden of proof at trial, summary judgment is proper. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).
For present purposes, there are no underlying facts in dispute in this case. The only dispute is whether those facts are enough to create an issue for the jury to decide as to causation: that is, whether plaintiff Kopey has sufficient evidence that she suffered any personal injury in the collision with defendant Brown. The court now concisely summarizes the underlying facts.
The accident with Brown occurred on August 13, 2010. A little more than three years prior to that, Kopey had been in another auto accident, in March 2007. In the 2007 accident the car Kopey was traveling in was broadsided by a semi tractor-trailer truck going approximately 55 miles per hour. Kopey suffered serious injuries including a lumbar-spine fracture, a facial laceration, a traumatic brain injury and a left-knee contusion. According to Kopey's treating physician, Dr. Timothy E. Davis, after that accident Kopey had been "struggling to get back to normal" from her injuries but had not made it "completely back to baseline" at the time of the 2010 collision with Brown. (DE #18-1 at 23-24.)
In the collision with Brown, Kopey had come to a complete stop at the intersection of McKinley and Division Streets in Mishawaka, Indiana. She looked in her rear-view mirror, saw a car approaching her at a rapid rate, and braced for impact. The approaching car collided with the rear of Kopey's auto pushing it into the car stopped in front of Kopey. Although Kopey's air bags did not deploy, her car was a total loss. Immediately after the impact Kopey's back, head, neck, chest, left arm and left wrist were all bothering her, and by the time she arrived at the emergency room, her left knee was painful. She had no broken bones, but she had bruising on her chest which gradually subsided. In the aftermath, she has continued to have headaches, neck pain, memory problems, back pain, left wrist problems (with grip, numbness and stiffness), knee pain and swelling, abdominal pain, and trouble sleeping.
Pursuant to Fed.R.Civ.P. 26(a)(2)(C), Kopey's treating physician Dr. Davis has provided a summary report. In it, he states that "[c]omplicating" her history are the injuries she suffered in the 2007 accident. (DE #18-1 at 23.) Dr. Davis continues:
She had gotten to the point where she was using less pain medication and doing yard work and housework at the time when she was reinjured in 2010.
Lee Ann Kopey now has pain with all of her activities of daily living.... The patient has a chronic pain situation that I do not see improving any time in the near future. Her condition has stabilized at this point in time, albiet [sic] she is at a much lower functioning level than previous to this most recent accident....
( Id. at 23-24.)
Under Indiana law, "questions of medical causation of a particular injury are questions of science necessarily dependent on the testimony of physicians and surgeons learned in such matters." Hannan v. Pest Control Services, Inc., 734 N.E.2d 674, 679 (Ind.Ct.App. 2000). On the issue whether the accident with Brown caused Kopey any injury, the only medical expert she has identified who will testify on the issue is her treating physician, Dr. Davis. Progressive argues that it is entitled to summary judgment because Dr. Davis has not ...