Filed: Dec. 18, 2008
Latest Update: Mar. 02, 2020
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 08a0451p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X - LIVONIA SHROPSHIRE, individually and as Plaintiff-Appellant, - next friend of HANNAH SHROPSHIRE, - Nos. 07-1650/1749 , > - v. - Defendant-Appellee. - LAIDLAW TRANSIT, INC., - N Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 06-10682—Anna Diggs Taylor, District Judge. Argued: October 29, 2008 D
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 08a0451p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X - LIVONIA SHROPSHIRE, individually and as Plaintiff-Appellant, - next friend of HANNAH SHROPSHIRE, - Nos. 07-1650/1749 , > - v. - Defendant-Appellee. - LAIDLAW TRANSIT, INC., - N Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 06-10682—Anna Diggs Taylor, District Judge. Argued: October 29, 2008 De..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0451p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
LIVONIA SHROPSHIRE, individually and as
Plaintiff-Appellant, --
next friend of HANNAH SHROPSHIRE,
-
Nos. 07-1650/1749
,
>
-
v.
-
Defendant-Appellee. -
LAIDLAW TRANSIT, INC.,
-
N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 06-10682—Anna Diggs Taylor, District Judge.
Argued: October 29, 2008
Decided and Filed: December 18, 2008
Before: NORRIS, ROGERS, and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ARGUED: Larry Bennett, GIARMARCO, MULLINS & HORTON, Troy, Michigan, for
Appellant. Daniel S. Saylor, GARAN LUCOW MILLER, Detroit, Michigan, for Appellee.
ON BRIEF: Larry Bennett, GIARMARCO, MULLINS & HORTON, Troy, Michigan, for
Appellant. Daniel S. Saylor, GARAN LUCOW MILLER, Detroit, Michigan, for Appellee.
1
Nos. 07-1650/1749 Shropshire v. Laidlaw Transit, Inc. Page 2
_________________
OPINION
_________________
ALAN E. NORRIS, Circuit Judge. In this personal injury action, Livonia Shropshire
1
brought suit against defendant Laidlaw Transit, Inc., on behalf of her daughter, Hannah, for
injuries sustained in an automobile accident that occurred when she was five years old.
Because our jurisdiction is premised on diversity of citizenship, 28 U.S.C. § 1332, we
apply state substantive law. Michigan’s no-fault automotive insurance scheme governs
this case, and requires a plaintiff to show the existence of a “serious impairment of body
[sic] function” to recover noneconomic damages. The statute further provides that, for
a plaintiff such as Hannah, who alleges she suffered a closed-head injury, whether she
is seriously impaired is a question for the jury if a physician testifies under oath that the
plaintiff “may have a serious neurological injury.” In the district court, plaintiffs sought
to introduce an affidavit satisfying this provision, but the court ruled it inadmissible.
Without it, plaintiffs had no evidence that Hannah had suffered a serious impairment of
body function, and the district court consequently granted summary judgment to
defendant. Plaintiff appealed, and we now affirm the decision of the district court,
though upon different reasoning. 2
I.
A brief overview of Michigan’s no-fault insurance scheme, Mich. Comp. Laws
§ 500.3135 (2008), will allow for a better understanding of the relevance of the
underlying facts. Michigan has partially abolished tort liability for noneconomic
damages arising out of automobile accidents. Mich. Comp. Laws §§ 500.3135(1) &
(3)(b). Plaintiffs’ recovery for such damages is limited to accidents in which they suffer
1
She also asserted claims related to her own alleged injuries, which are not at issue in this appeal.
2
Defendant filed a cross-appeal and asserts that the district court erred in its analysis of proximate
cause. Given our resolution of this case, we need not reach this issue. We also note in passing that a
cross-appeal is inappropriate when the only relief sought is an affirmance of the district court judgment.
See generally Bailey v. Dart Container Corp., 292 F.3d 360, 1362 (Fed. Cir. 2002) (“It is only necessary
and appropriate to file a cross-appeal when a party seeks to enlarge its own rights under the judgment.”).
Nos. 07-1650/1749 Shropshire v. Laidlaw Transit, Inc. Page 3
“death, serious impairment of body function, or permanent disfigurement.” Mich.
Comp. Laws § 500.3135(1). At issue in the appeal before us is the “serious impairment
of body function” exception, defined in the statute:
As used in this section, “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.
Mich. Comp. Laws § 500.3135(7).
The statute further instructs courts that “for a closed-head injury, a question of
fact for the jury is created if a licensed allopathic or osteopathic physician who regularly
diagnoses or treats closed-head injuries testifies under oath that there may be a serious
neurological injury.” Mich. Comp. Laws § 500.3135(2)(a)(ii). It is this provision
specifically that plaintiff invokes to avoid summary judgment and bring her case before
a jury.
II.
On May 15, 2001, Hannah’s mother Livonia picked her up at school, along with
her two sisters and her brother. Hannah was five years old at that time, nearing the end
of kindergarten. Livonia drove a van with three rows of seats and Hannah, wearing a
seatbelt, sat in the row immediately behind her mother. After picking up the children
Livonia headed towards the parking lot exit, driving alongside a row of school buses
parked to her right. As she did so, a bus owned by defendant Laidlaw pulled away from
the curb and struck the right rear passenger side of the van.
The accident caused Hannah to hit her head against the van’s window. Livonia,
unaware of this, quickly stopped the van and checked on her children, each of whom said
he or she was okay, a message Livonia conveyed to the police when they arrived on the
scene. It is undisputed that Hannah’s mother did not seek medical treatment for her the
day of the accident, and Hannah never showed any physical signs of an injury from the
accident.
Nos. 07-1650/1749 Shropshire v. Laidlaw Transit, Inc. Page 4
Within a few days, however, Hannah began to experience headaches, and when,
a week after the accident, she also developed a fever and began vomiting, her mother
took her to see Dr. William Heath, her pediatrician. Dr. Heath found no physical
evidence of an injury, but at the request of Livonia referred Hannah to a neurologist for
a more complete examination. The examining neurologist, Marianne E. Majkowski,
D.O., came to the same conclusion as Dr. Heath, finding no physical evidence of a head
injury. Over the next five years, Hannah would visit with Dr. Majkowski and Dr. Heath
numerous times, in addition to seeing three other doctors and a neuropsychologist, with
the net result of one electroencephalogram (known better as an “EEG”) indicating some
abnormality in Hannah’s brain. Otherwise, no objective test ever confirmed that Hannah
suffered from a brain injury as a result of the accident. Based on the sole abnormal EEG,
Dr. Charise Valentine, who performed that test, submitted an affidavit stating, in
pertinent part:
4. That Hannah Shropshire suffered a traumatic brain injury as a result
of a motor vehicle accident which occurred on the 15th day of May,
2001.
5. That Hannah Shropshire manifests seizures attributable to the
aforementioned motor vehicle accident and resulting closed head injury.
6. As a licensed allopathic physician who regularly diagnoses and treats
closed head injuries, it is my opinion that the motor vehicle accident
aforementioned caused Hannah Shropshire to sustain a closed head
injury resulting in a serious neurological injury.
In her deposition, Hannah testified as to what her general life has been like since
the accident, and in this testimony she appears normal for a girl her age. She goes
swimming, has friends at school, plays computer games and basketball, watches
television with her two older sisters, rides her bike, and over the last summer “got to do
all the fun stuff” that she wanted. She enjoyed third grade and her classes, but was not
eager to return to school. Her mother also testified that Hannah’s grades remained good
throughout the years following the accident, with the exception of her handwriting grade,
but that was apparently “low” before the accident as well.
Nos. 07-1650/1749 Shropshire v. Laidlaw Transit, Inc. Page 5
In the district court, plaintiff sought to introduce Dr. Valentine’s affidavit in
opposition to defendant’s motion for summary judgment. Plaintiff argued there, as she
does here, that this affidavit satisfies subsection (2)(a)(ii) of the no-fault scheme and
therefore it is now a question for the jury whether, as a result of the accident, she has a
“serious impairment of body function.” For various reasons that we need not address,
the district court found the affidavit inadmissible, and determined that without it plaintiff
had not produced evidence sufficient to satisfy subsection (2)(a)(ii). Nor, the court
concluded, had plaintiff shown that her injury satisfied the generic definition of “serious
impairment of body function” contained in subsection (7). Therefore, the district court
granted defendant’s motion for summary judgment.
III.
We review grants of summary judgment de novo, and draw all reasonable
inferences in favor of the nonmoving party. Lockett v. Suardini, 526 F.3d 866, 872 (6th
Cir. 2008) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587
(1986)).
In diversity actions, we apply state substantive law but federal procedural law,
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938), and a central dispute in this appeal
concerns this substantive/procedural distinction. Mich. Comp. Laws
§ 500.3135(2)(a)(ii) apparently requires different things of a plaintiff at this stage of
litigation than does Fed. R. Civ. P. 56(c), and this case requires us to determine whether
this provision of Michigan law is substantive and therefore applicable in federal court,
or procedural, in which case it is supplanted by Rule 56. We conclude that the Michigan
provision at issue is procedural, and therefore a plaintiff is not entitled to argue her case
to a jury merely because she has satisfied its requirements. Instead, plaintiff must
produce evidence creating a genuine issue of material fact, as required by Rule 56(c).
Here, plaintiff has failed to do so, and as a result defendant’s motion for summary
judgment must be granted.
Nos. 07-1650/1749 Shropshire v. Laidlaw Transit, Inc. Page 6
A.
As an initial matter, Laidlaw failed to raise this issue in the district court.
However, as this court has recognized, we may affirm on a ground not relied upon by
the district court. E.g., Dismas Charities, Inc. v. United States DOJ, 401 F3d 666, 677
(6th Cir. 2005).
Whether we apply the closed-head injury provision in federal court turns on
whether that provision is substantive or procedural. Erie R.R. Co., 304 U.S. at 78. For
some time now, it has been clear that a substantive law is one that gives rise to “state-
created rights and obligations” or is otherwise “bound up with these rights and
obligations in such a way that its application in the federal court is required.” Byrd v.
Blue Ridge Rural Elec. Corp.,
356 U.S. 525, 535 (1958). Viewed with that in mind, the
subsection containing the closed-head injury provision states, in its entirety:
(a) The issues of whether an injured person has suffered serious
impairment of body function or permanent serious disfigurement are
questions of law for the court if the court finds either of the following:
(i) There is no factual dispute concerning the nature and extent of the
person’s injuries.
(ii) There is a factual dispute concerning the nature and extent of the
person’s injuries, but the dispute is not material to the determination as
to whether the person has suffered a serious impairment of body function
or permanent serious disfigurement. However, for a closed-head injury,
a question of fact for the jury is created if a licensed allopathic or
osteopathic physician who regularly diagnoses or treats closed-head
injuries testifies under oath that there may be a serious neurological
injury.
Mich. Comp. Laws §§ 500.3135(2)(a)(i) & (ii). 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. See Byrd, 356 U.S. at 538. This subsection
sets forth no substantive standards at all; it merely delineates which decision-making
body, judge or jury, should make the substantive determinations laid out elsewhere.
Furthermore, because the entire subsection is bereft of substantive law, it cannot be said
Nos. 07-1650/1749 Shropshire v. Laidlaw Transit, Inc. Page 7
to be so bound up in state-created rights and obligations as to require its application in
federal court.
The fact that this subsection overlaps with Rule 56, and the judge-jury
demarcations set forth therein, is another indication that we should not apply it in federal
court. See Byrd, 356 U.S. at 538 (“there is a strong federal policy against allowing state
rules to disrupt the judge-jury relationship in the federal courts”); see also Hanna v.
Plumer,
380 U.S. 460, 471-74 (1965) (holding that in diversity cases, federal courts
should apply any on-point Federal Rule of Civil Procedure, unless it directly conflicts
with state law and violates either the Constitution or the Rules Enabling Act, 28 U.S.C.
§ 2072). In Reid v. Sears, Roebuck & Co., we wrote that, notwithstanding conflicting
state law, “[s]ummary judgment is a procedural device for deciding a case without the
necessity of a full-blown trial. When there is a motion for summary judgment in a
diversity case, the provisions of Rule 56 control its determination.”
790 F.2d 453, 459
(1986) (internal quotations omitted). Especially relevant here is that we have applied
this rule even where the federal summary judgment requirements displace state law that
would require a jury to make a particular determination. Bichler v. Union Bank & Trust
Co.,
745 F.2d 1006, 1014 (6th Cir. 1984) (en banc) (holding that Rule 56 applies even
when a person’s mental state is at issue, a question reserved for the jury under state law).
Despite subsection (2)(a)(ii)’s seemingly straightforward language, plaintiff
argues that it creates a new avenue by which she can prevail on the merits, thereby
making this law a substantive one that we would then apply in federal court. Her
argument, however, is unavailing. We look first, as we must, to the state courts of
Michigan for guidance on this question, In re Dow Corning Corp., 419 F.3d 543, 549
(6th Cir. 2005), but unfortunately, there is little to be found.3 This is not surprising,
since in Michigan state court once subsection (2)(a)(ii) is satisfied, there is nothing left
3
There are numerous Michigan state court decisions that stand for the undisputed proposition that
once a plaintiff has satisfied the requirements of the closed-head injury provision, she need not in addition
satisfy the requirements of subsection (7) to survive summary disposition. See, e.g., Nelson v. Vasich,
2006 WL 2708683 (Mich. App. Sept. 21, 2006); Guerrero v. Smith,
2006 WL 2419178 (Mich. App. Aug.
22, 2006). But those cases are limited to determinations regarding summary disposition under the
Michigan Court Rules; they do not in any way opine as to what the plaintiff must ultimately prove to the
jury to prevail on the merits.
Nos. 07-1650/1749 Shropshire v. Laidlaw Transit, Inc. Page 8
for the court to decide; the case goes straight to the jury. In the absence of Michigan
case law, we must anticipate how the Michigan Supreme Court would rule on the issue,
and make our decision accordingly.
Id.
Turning, then, to the statute itself, a review of § 500.3135 in its entirety makes
clear that there are only three circumstances in which a person can recover noneconomic
tort damages arising from an automobile accident: “death,” “permanent serious
disfigurement,” or “serious impairment of body function.” Mich. Comp. Laws
§ 500.3135(1). And there is only one way to meet the “serious impairment” exception,
as provided in subsection (7): “[a]s used in this section, ‘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.” Mich. Comp.
Laws § 500.3135(7). Nothing in subsection (2)(a)(ii) suggests that these requirements
need not be met in order for a plaintiff to recover at trial just because a plaintiff alleges
a closed head injury. In fact, by its very terms, subsection (7)’s definition applies to the
entire “section,” including subsection (2)(a)(ii).
The jury instructions Michigan courts use in such cases support our conclusion
that subsection (2)(a)(ii) does not provide a new means of recovery. In any case arising
under the no-fault statute, courts instruct the jury that:
One of the elements plaintiff must prove in order to recover noneconomic
loss damages in this case is that [he/she] sustained a serious impairment
of body function.
Serious impairment of body function means an objectively manifested
impairment of an important body function that affects the plaintiff’s
general ability to lead [his/her] normal life.
Nos. 07-1650/1749 Shropshire v. Laidlaw Transit, Inc. Page 9
M. Civ. JI 36.11. These instructions are “To Be Used in Cases in Which [Mich. Comp.
Laws § 500.3135] Applies,” and there is no exception or different instruction to be given
for cases that go to a jury under the closed-head injury provision.4 Id. In other words,
even when “a question of fact for the jury is created” by way of the closed-head injury
provision, juries are still instructed that they may only find for the plaintiff if her injury
meets the requirements of subsection (7). No Michigan court has ever held or even
hinted to the contrary, and we have no reason to believe that, given the opportunity, they
would do so.
We conclude, then, that although subsection (2)(a)(ii) provides an alternate road
by which a plaintiff may reach a jury, it does not create an altogether new means of
recovery. In Michigan, there is but one route to ultimate recovery for plaintiffs with
closed-head injuries arising from an automobile accident, and that is through subsection
(1) via the requirements laid out in subsection (7).
Finally, plaintiff took the position at oral argument that the closed-head injury
provision is substantive because it is found in a state statute that creates a cause of
action. Put another way, plaintiff contends that Rule 56 may only supplant provisions
of state law that are found in the state’s summary judgment procedures, and in this she
is simply mistaken. Whether a state law provision is substantive or procedural depends
not on where that law is found, but rather, as stated above, on whether that particular
provision either creates rights and obligations or is so “bound up with [state-created]
rights and obligations” that it must be considered substantive. Byrd, 356 U.S. at 535.
It is true that in the usual case, the state law overridden by Rule 56 will be the state’s
summary judgment rule, but that is happenstance, not a limit on the application of
federal summary judgment procedures. See, e.g., Central Ins. Co. v. Dana Corp, 1990
4
The “Notes on Use” do not provide any instruction to the contrary. They state only that:
The amended statute specifically provides that for a closed-head injury, a question of
fact is created if a licensed allopathic or osteopathic physician who regularly diagnoses
or treat closed-head injuries testifies under oath that there may be a serious neurological
injury. MCL 500.3135(2).
M. Civ. J1 36.11. There is no indication anywhere in the instructions that the generic instruction quoted
above is not to be given in such cases.
Nos. 07-1650/1749 Shropshire v. Laidlaw Transit, Inc. Page 10
WL 47561 (6th Cir. Apr. 17, 1990) (holding that Rule 56 overrides state case law
preventing summary judgment disposition for cases involving claims for piercing the
corporate veil).
In drawing the conclusion we reach today, we recognize that because Rule 56
and section (2)(a)(ii) set forth different standards for plaintiffs at this stage of litigation,5
it is inevitable that our decision to apply the federal rule over the state statute will, on
occasion, lead to different outcomes. But this is no barrier to the application of the
federal standard, given the “strong federal policy” of not permitting state law to interfere
with the “judge-jury relationship in the federal courts.” Byrd, 356 U.S. at 538; accord
Reid, 790 F.2d at 459. Moreover, this difference in outcome should be exceedingly rare.
The evidence we require of a plaintiff to survive summary judgment is by definition
some lesser quantum of the same evidence she would eventually have to produce if she
were to prevail at trial. If she cannot produce the minimal evidence required to survive
summary judgment, there is no reason to think she would have prevailed at trial.
Therefore, we are not overly concerned that our decision today will lead to different
outcomes in federal as opposed to state court.
B.
Having determined that defendant’s motion for summary judgment is governed
by Rule 56, we are left with the task of applying that rule to the case at bar. Summary
judgment is proper when “the pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as to any material fact and that
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Upon a
defendant’s motion for summary judgment, “[t]he mere existence of a scintilla of
evidence in support of the plaintiff’s position will be insufficient; there must be evidence
5
As plaintiff points out, in Michigan it is settled law that a plaintiff who has produced evidence
satisfying this provision is entitled to argue her case to a jury; she need not adduce any other evidence to
avoid summary disposition. See, e.g., McCall v. Dorch, 2007 2007 WL 171987 (Mich. App. Jan. 23,
2007). Laidlaw agrees, and concedes that if Dr. Valentine’s affidavit is admissible, then defendant’s
motion for summary disposition would be denied in the Michigan courts. Federal law, on the other hand,
requires a court to adjudge motions for summary judgment based on the familiar standard of whether there
exists a genuine issue of material fact. Fed. R. Civ. P. 56(c).
Nos. 07-1650/1749 Shropshire v. Laidlaw Transit, Inc. Page 11
on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby,
Inc.,
477 U.S. 242, 252 (1986). We must, therefore, determine whether plaintiff has
created a genuine issue of material fact on the essential elements of her case.6 Celotex
Corp. v. Catrett,
477 U.S. 317, 323 (1986).
According to the Michigan Supreme Court, “‘serious impairment of body
function’ contains the following components: an objectively manifested impairment, of
an important body function, and that affects the person’s general ability to lead his or her
normal life.”7 Kreiner v. Fischer, 683 N.W.2d 611, 619 (Mich. 2004) (footnote
omitted). Because we conclude plaintiff has not satisfied the last element, we need not
address the first two.
The Kreiner court explained in great detail how courts should determine whether
an injury affects a person’s general ability to lead her life, beginning by noting that:
[W]hat is “normal” is to be determined subjectively on the basis of the
plaintiff’s own life and not the life of some objective third party.
However, once that is fixed as the base, it is to be objectively determined
whether the impairment in fact affects the plaintiff’s “general ability to
lead” that life.
Id. at 619 n.7. The court further clarified the analysis to be undertaken:
The starting point in analyzing whether an impairment affects a person’s
“general,” i.e., overall, ability to lead his normal life should be
identifying how his life has been affected, by how much, and for how
long. Specific activities should be examined with an understanding that
not all activities have the same significance in a person’s overall life.
Also, minor changes in how a person performs a specific activity may not
change the fact that the person may still “generally” be able to perform
that activity.
6
We assume without deciding that Dr. Valentine’s affidavit is admissible evidence, and as such,
it will be treated like all other evidence submitted at this stage of litigation. However, because Dr.
Valentine does not opine on any of the ultimate factual issues of the case, it is irrelevant to our inquiry.
7
We note that the Kreiner court set forth this analysis to guide courts when applying the other
two provisions of subsection (2)(a), that is, to courts determining as a matter of law whether an injury rose
to the level of being a serious impairment of bodily function, under subsection (2)(a)(i) or the first sentence
of subsection (2)(a)(ii). 683 N.W.2d at 625. However, we see no reason why its logic would not apply
here, because Kreiner expands and interprets subsection (7), the requirements of which plaintiff must meet
to prevail, as discussed above.
Nos. 07-1650/1749 Shropshire v. Laidlaw Transit, Inc. Page 12
Id. at 625. In general, courts should make this determination based on the totality of the
circumstances.8
Id. at 626.
Hannah’s youth at the time of the accident – she was five years old and had just
finished kindergarten – makes it difficult to apply Kreiner to her case.9 Nonetheless, we
begin by noting those things which have not been affected by Hannah’s alleged injury:
Hannah has, by her mother’s account, missed only two weeks of school due to this
accident, largely for visits to the doctor, so her injury cannot be said to have affected her
ability to attend school. Nor has her injury, or the alleged seizures that come along with
it, affected her ability to participate in activities or interact with other students and
friends – she enjoys doing many things typical for a girl her age, such as playing
basketball, riding her bike, and playing with her best friend (who has been so since the
first grade).
This leaves plaintiff with the argument that her general ability to lead her normal
life has been affected through the accident’s effect on her academic performance. This
is a significant activity in a young person’s life, the importance of which we do not
doubt. Defendant Laidlaw points out that Hannah has never been held back a grade in
school, nor has she ever needed or received the assistance of a tutor, or a special teacher
of any kind to help her with her school work. To be sure, there is more to academic
performance than that – just because a student does not fail or need a tutor does not mean
that her ability to perform academically has not been affected substantially enough to
change her ability to lead her normal life. But Hannah’s mother had an opportunity to
explain exactly how the injury has affected her daughter’s academic performance, and
her explanation was, in our view, less than compelling. When asked if Hannah had
experienced any problems at school during first grade, the year after the accident, the
only problem she brought up was with her handwriting. She maintained this even when
8
A non-exclusive list of factors to be considered include “(a) the nature and extent of the
impairment, (b) the type and length of treatment required, (c) the duration of the impairment, (d) the extent
of any residual impairment, and (e) the prognosis for eventual recovery.” Id. at 626.
9
Adding to this difficulty is the fact that plaintiff has not at any point even attempted to identify
any evidence suggesting that she can ultimately prevail, instead hanging her hat on her argument that she
need not satisfy the requirements of Rule 56 to survive summary judgment.
Nos. 07-1650/1749 Shropshire v. Laidlaw Transit, Inc. Page 13
pressed as to whether there was “anything else besides her handwriting” that was giving
Hannah problems, and she eventually stated that otherwise, Hannah’s grades were good.
What’s more, when putting Hannah’s low first-grade handwriting grade in perspective,
she went on to testify that Hannah had also received a low handwriting score in
kindergarten. This is the only evidence we have on this issue, and it is insufficient to
create a genuine issue of material fact.
IV.
For these reasons we affirm the judgment of the district court.
