EDUARDO C. ROBRENO, District Judge.
Plaintiff Stephanie Peterman ("Plaintiff") brought this suit seeking damages from Defendants Michael Martin (nee Erts) ("Mr. Martin") and Karen Martin ("Ms. Martin") (collectively "Martin Defendants"), Stephanie Peterman ("Mrs. Peterman"), John Doe-1, John Doe-2, and John Doe Corporation (collectively "John Doe Defendants"). Plaintiff's Complaint pleads two counts: (1) negligence against Defendants Mr. Martin, Stephanie Sakalauskas, and Doe-1; and (2) negligence against Defendants Ms. Martin, Doe-2, and John Doe Corporation. Compl., ECF No. 1.
Plaintiff's Complaint arises from a multicar accident on October 6, 2009. Plaintiff alleges she was driving her automobile southbound on Route 1 through Middletown Township, Pennsylvania when she came to a stop due to traffic in front of her, and her car was then struck from behind by two vehicles. Compl. ¶ 17-18.
Pending before the Court is Defendants' Motion for Partial Summary Judgment ("Motion"). ECF No. 37. For the reasons that follow, the Court will deny Defendants' motion.
At the time of the accident, Plaintiff was employed by Benchmark Therapies as an occupational therapist at Delaware Valley Veterans Home and served as the Director of Rehabilitation. See Defs.' Mot. Summ. J., Ex. A, Pl.'s Dep. 23:19-25:24, May 25, 2012 (ECF No. 37-1). Plaintiff had worked in that position for approximately seven months without any discipline for job performance. See id. at 25:22-26:6.
Prior to the accident, Plaintiff was physically active and in good physical health. In carrying out her work as a caregiver, she claims that she routinely lifted patients weighing upwards of 200 to 400 pounds. See id. at 24:19-25:25. Plaintiff also typically ran several days a week, for a typical distance of eight miles. See id. at 119:6-10. Plaintiff enjoyed socializing with friends and going out for dinner, drinks, and dancing. See id. at 121:1-24. The current impairments were not previously existing conditions; even if there was some previously existing degenerative condition, what Plaintiff's evidence suggests is that it would have remained "asymptomatic indefinitely." Pl.'s Resp. Defs.' Mot. Summ. J., Ex. E, Letter from Doctor Steven Mazlin, M.D., Regarding Stephanie Peterman (July 26, 2012) (ECF No. 39-6).
On October 6, 2009, Plaintiff was involved in a multicar accident on Route 1 in Middletown Township, and she alleges that Defendants were at fault. See Compl. ¶ 17-19; see also Pl.'s Resp. Defs.' Mot. Summ. J., Ex. B, Commonwealth Pa. Police Crash Reporting Form, Oct. 6, 2009, ECF No. 39-3; Pl.'s Dep. 66:9-67. Immediately following the accident, Plaintiff was trapped in her vehicle and claims she was experiencing severe pain. Pl.'s Dep. 69:1-70:5. Plaintiff was removed from her vehicle
Following the accident, Plaintiff alleges she has several permanent injuries that will continue to cause her varying levels of pain and limit her physical abilities. A June 21, 2012 MRI showed "multiple disc bulges at C4-5, C5-6, C6-7, T7-8, T9-10, T10-11, T11-12, T12-L1 and L2-3." Letter from Doctor Mazlin (July 26, 2012), see also Pl.'s Resp. Defs.' Mot. Summ. J., Ex. F, MRI Reports for Stephanie Peterman, 2-3, June 21, 2012 (ECF No. 39-6). Plaintiff has presented evidence supporting her claim that these injuries are permanent and will continue to cause pain to the Plaintiff. Letter from Doctor Mazlin (July 26, 2012). According to Plaintiff's doctor, "the accident caused sprain injuries to [Plaintiff's] neck (cervical spine), upper back (thoracic spine), and lower back (lumbar spine) which are now permanent, and represent another generator of chronic pain." Id.
Plaintiff's treatment has been ongoing since 2009.
On February 9, 2010, Plaintiff began a course of treatment with neurologist Dr. Stephen Mazlin M.D. See Pl.'s Resp. Defs.' Mot. Summ. J., Ex. E, Letter from Doctor Steven Mazlin, M.D., Regarding Stephanie Davis (February 9, 2010), ECF No. 39-6. Because Plaintiff claimed that her pain and other symptoms continued, Plaintiff went for additional MRI testing and diagnostic imaging studies on June 21, 2012. See MRI Reports for Stephanie Peterman (June 21, 2012). Plaintiff's pain management includes visiting doctors, the use of over the counter painkillers, yoga, water exercise, and other activities aimed at reducing her complained of pain and impairments. See Pl.'s Dep. 118:1-18 (describing use of gym to rebuild muscles); see also id. (recounting use of yoga to manage pain and symptoms); id. at 118:19-119:2 (explaining use of hot tub to relieve pain); id. at 104:12-22 (discussing use of over the counter pain killers); id. at 155:23-116:5 (stating Plaintiff takes Advil every day for pain and Flexeril at night so she can sleep).
According to Plaintiff, her injuries, and the resulting impairments, have led to a significant decrease in her employment options. Following the accident, Plaintiff claims she is no longer able to continue in her position as Director of Occupational Therapy at Delaware Valley Veterans Home. See id. at 24:19-25:15 ("I had to quit my job"). Since then, Plaintiff has taken a number of "limited duty" positions, most of which have been temporary. See id. at 40:6-48:17. Plaintiff has declined at least one full time position because she claims her injuries do not permit her to perform the full range of duties expected at such a position. See id. At the time of the Motion, Plaintiff was working as an
Plaintiff asserts that her physical abilities and activities are now similarly limited. According to Plaintiff, she is often unable to use her "left hand to manipulate objects." Id. at 115:19-23. Plaintiff no longer runs the eight miles she was accustomed to, and instead she runs only twice a week for only one to two miles each time. See id. at 118:1-15. Plaintiff also alleges that she has difficulty sleeping and traveling. See id. at 119:18-23. Plaintiff contends that, as a result of her injuries, her social life has been restricted and she is no longer able to enjoy going dancing or going out for drinks with friends. See id. at 121:1-24. In fact, Plaintiff asserts that she has been forced to modify virtually every aspect of her life. See id. at 120:16.
Under these facts, the Court will determine if Plaintiff's injuries, as alleged, are serious injuries within the meaning of the PMVFRL.
Summary judgment is appropriate if there are no genuine disputes of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a). "A motion for summary judgment will not be defeated by `the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact." Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir.2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A fact is "material" if proof of its existence or non-existence might affect the outcome of the litigation, and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
In undertaking this analysis, the court views the facts in the light most favorable to the non-moving party. "After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party." Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir.2010) (citing Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997)). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the non-moving party who must "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250, 106 S.Ct. 2505.
In a diversity case, when faced with a motion for summary judgment, the federal courts follow federal law on issues of procedure but apply the substantive rule of decision from state law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Garcia v. Plaza Oldsmobile Ltd., 421 F.3d 216, 219 (3d Cir.2005).
The Court must first determine whether under federal law a genuine dispute of material fact exists regarding the injuries and impairments alleged by the Plaintiff. If there is no dispute, the Court must then determine under Pennsylvania law if Plaintiff has introduced sufficient evidence to
On the first issue the Court must consider, whether a genuine dispute of material fact exists regarding the injuries and impairments alleged by Plaintiff, the Court finds there is not a dispute. For purposes of this motion, Martin Defendants appear to accept Plaintiff's alleged injuries as true and do not materially deny the impairments they cause.
Plaintiff elected the limited tort option on her insurance agreement. See 75 Pa. Cons.Stat. Ann. § 1701 et seq. (West 2013). Accordingly, it is undisputed that unless there is an applicable exception, she is prohibited from recovering for non-economic damages. Id. § 1705(a)(i)(A). Plaintiff alleges that her injuries are serious injuries within the meaning of the PMVFL and thus under the exception within § 1705(d) which provides that the insured elector is limited to non-economic damages "[u]nless the injury sustained is a serious injury." Plaintiff does not argue
The Pennsylvania Supreme Court has held that, under the PMVFRL, the "threshold determination" whether or not an injury is a serious injury "was not to be made routinely by a trial court judge [pretrial]... but rather was to be left to a jury unless reasonable minds could not differ on the issue of whether a serious injury had been sustained." Washington, 719 A.2d at 740. The Washington court adopted Michigan's standard for serious injury which defines a serious injury as a "serious impairment of body function." Id. (citing DiFranco, 398 N.W.2d at 901).
Under Pennsylvania law, the "`serious impairment of body function' threshold contains two inquiries: a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident? b) Was the impairment of the body function serious?." Id. at 740 (citing DiFranco, 398 N.W.2d at 901) (footnote omitted). The court in Washington held that in determining if the impairment is serious, the Court should examine several factors including the "extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors." Id. (citing DiFranco, 398 N.W.2d at 901) (footnote omitted).
Plaintiff's evidence should be sufficient to show that she "has suffered a serious injury such that a body function has been seriously impaired." Washington v. Baxter, 719 A.2d at 741 (emphasis in original). The Pennsylvania Supreme Court has directed that the evidence of the injury must be sufficient to prove that "not only was there an injury, but that it was also serious, before allowing [Plaintiff] to present [Plaintiff's] case to the jury." Id. The ultimate determination of whether the evidence establishes that the injury was serious, however, should be retained for the finder of fact unless reasonable minds cannot differ on the issue.
Plaintiff has provided sufficient evidence of the injuries she sustained such that a jury could identify the impairment. Injuries include "multiple [permanent] disc bulges at C4-5, C5-6, C6-7, T7-8, T9-10, T10-11, T11-12, T12-L1 and L2-3." Letter from Doctor Mazlin. In addition, Plaintiff has provided evidence to show that "the accident caused sprain injuries to her neck (cervical spine), upper back (thoracic spine), and lower back (lumbar spine) which are now permanent, and represent another generator of chronic pain." Id. Furthermore, Plaintiff alleges specific impairments in her left arm and her back. Accordingly, Plaintiff has satisfied the first step under Washington and identified
The Court will next perform the second step in the Washington inquiry and determine whether reasonable minds could find that the impairment was serious. Washington, 719 A.2d at 740. Both the Plaintiff and the Defendant point the court towards Pennsylvania cases as examples of what types of injuries have sufficed, or not sufficed, as serious injuries under Pennsylvania law. Accordingly, the Court will examine Pennsylvania case law to determine what types of injuries have, historically, been sufficient or insufficient to survive a motion for summary judgment.
In Washington, the seminal case on serious injury under the PMVFRL, the Pennsylvania Supreme Court found that the plaintiff did not suffer from a serious injury. Washington, 719 A.2d at 741. His initial injuries were mild and he was released from the hospital after only a few hours. Id. In summarizing his injuries the Pennsylvania Supreme Court stated:
Id. (emphasis in original). The only limitation on his personal activities appeared to be the need to utilize a "riding mower" to cut his grass and he was otherwise "able to engage in his normal daily activities." Id.
In McGee v. Muldowney, the plaintiff established that he had "suffered some injuries to his back and shoulder" but failed to "establish that [those] injuries resulted in such substantial interference with any bodily function as to permit a conclusion that the injuries ... resulted in a serious impact on his life for an extended period of time." McGee v. Muldowney, 2000 PA Super 116, 750 A.2d 912, 915 (Pa.Super.Ct.2000). The McGee court's decision that Plaintiff had not suffered a serious injury rested on several factors. See id. Among those factors was that the plaintiff "was examined and treated on several occasions during the six months following the accident, but did not seek any medical attention (except for the [doctor's] visits ... on December 20, 1993, and May 31, 1994) during the next five and one-half years." Id. Furthermore, the plaintiff was employed full time and although he "shun[ned] certain lifting tasks" his employer was not aware of the limitation. Id. Accordingly, the court found that summary judgment for the defendant was warranted because the plaintiff had "failed to present objective medical evidence as to the degree of any impairment and extent of any pain suffered during the five years preceding ... the motion for summary judgment." Id. Furthermore, the "subjective allegations presented by [the plaintiff], in the absence of objective medical evidence, [did] not permit a finding that appellant suffered the requisite `serious injury.'" Id.
By contrast, in Kelly v. Ziolko, the Superior Court found that the Plaintiff had provided sufficient evidence of a serious
Id. at 899-900 (internal footnotes and citations omitted).
The Kelly court held that "the trial court erred in determining that [the plaintiff] did not sustain serious bodily injury and that there was no need for the issue to go to a jury." The court explained that the case presented a "less clear-cut picture of the seriousness of the plaintiff's injuries" than previous cases but that it should go to a jury because "reasonable minds [could] differ as to whether the plaintiff sustained a serious injury." Id. at 900.
Consistent with the approach taken in Kelly, in Graham v. Campo, the Superior Court affirmed the Court of Common Pleas' finding that the plaintiff had suffered
In the case sub judice, Plaintiff presents sufficient evidence that the fact finder could determine that the resulting impairments have been significant and have severely limited both her professional and personal activities. Plaintiff alleges she was unable to continue in her previous position as Director of Occupational Therapy. See Pl.'s Dep. 24:19-25:15. Since then plaintiff has held a number of jobs as an "occupational therapy assistant." Id. at 47:1-48:10. These positions have been generally temporary, and she now makes $30,000 less than she previously did. Id. at 40:6-48:17. The resulting decrease in opportunities has come because, according to Plaintiff, her injuries limit her abilities to perform her job including, for instance, the lifting of patients. Id. Plaintiff demonstrates that she no longer enjoys the same well-rounded social life that she once did and virtually every aspect of her life has been impacted in some way. Id. at 118:1-120:16. One impairment of a bodily function is that she is often unable to use her left hand to manipulate objects. Id. at 115:19-23.
In addition, Plaintiff's medical treatment has been ongoing. Her treatment has included the use of pain killers, MRIs and other diagnostic imaging, neurologic care, yoga, water exercise, and frequent voluntary visits to a chiropractor. See id. at 104:12-22, 118:1-119:2, 155:23-116:5. Plaintiff has indicated a desire for even more medical care but her decreased financial resources prevent her from doing so. See id. at 101:20-103:3.
The Court finds that, in comparing the injuries of Plaintiff to those of the plaintiffs in the cases cited above, it cannot be said that "reasonable minds" could not come to the conclusion that Plaintiff has suffered a serious injury. Plaintiff's alleged impairments are clearly greater than those of the plaintiff in Washington who missed only four or five shifts of work and needed to use a ride-on lawnmower in order to cut his grass. See Washington, 719 A.2d at 741. Additionally, it is obvious that the Plaintiff's injuries are greater than the injuries in McGee. In McGee, the plaintiff's employer was unaware of the solitary limitation on his employment. See McGee, 750 A.2d at 915. Plaintiff, in the present case, claims she had to change her career, and it is obvious that her employers have been aware of her post-accident
Plaintiff's injuries are more in line, if not greater than those evidenced in Kelly, and come close to those shown in Grahm. See Kelly, 734 A.2d at 899-900. In both Kelly and the case here, the impairments include back injuries accompanied by pain and numbness. Both cases show only short hospital stays followed by a return to work. In both cases, the plaintiff has been voluntarily seeking chiropractic care, and has had a significant decrease in recreational activity.
The Court will deny Defendant's motion for partial-summary judgment on the issue of serious injury because Defendant has failed to show that "reasonable minds could not differ on the issue of whether a serious injury had been sustained," and Plaintiff has provided sufficient evidence for which a jury could find what body function was impaired and that the impairment was serious (including medical testimony). Plaintiff should be permitted, at trial, to attempt to recover non-economic damages provided she can prove to the jury that she has suffered a serious injury.
For the reasons set forth above, the Court will deny the Motion and an appropriate order will follow.
While Plaintiff's complaint alleged that the impact between her vehicle and Mr. Martin's vehicle was indirect (in that he struck Defendant Sakalauskas' vehicle), she has also stated that the impact was direct. Compare Pl.'s Dep. 76:23-77:1 (stating during deposition that impact was direct); Compl. ¶ 19 (stating Mr. Martin's vehicle struck Ms. Sakalauskas' vehicle causing Ms. Sakalauskas' vehicle to "violently thrust[] ... forward" into Plaintiff's vehicle"). Whether Mr. Martin's vehicle struck Plaintiff's vehicle directly or indirectly, however, is not relevant to determining the present Motion.
Defendants contend Plaintiff is still able to engage in "numerous activities" including exercising, running, dining out, getting out of bed, showering, getting dressed, driving, shopping, walking, and taking a plane. See id. at 6. Finally, Defendants argue that the examination conducted by Dr. Lefkoe found that "Plaintiff's injuries from the accident resolved," "no further treatment was necessary" and "the Plaintiff did not sustain a serious ... impairment of a body function as a result of the accident." Id. at 6. While Defendants conclude there is insufficient evidence to establish Plaintiff has sustained a serious injury and cannot recover non-economic damages, they do not appear to dispute, for the purposes of the motion, that Plaintiff has actually suffered the injuries alleged. Instead, the dispute is focused on whether or not the injuries are serious injuries within the meaning of the PMVFRL. Even if Defendants disputed the existence of the injuries, and the resulting impairments, such dispute would not affect the Court's denial of the Motion for Partial Summary Judgment. Such a dispute would create a genuine dispute of material fact and, accordingly, the Court would still deny the Motion.
In applying Washington, courts in this district have looked for medical evidence to prove the existence, extent, and permanency of an injury. Sanderson-Cruz v. United States, 88 F.Supp.2d 388, 394 (E.D.Pa.2000) (citations omitted). An impairment, however, need not be permanent to be serious. Washington, 719 A.2d at 740 (citing DiFranco, 398 N.W.2d at 901).
