Pigott v. Heath

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

KENNETH PIGOTT, JR., ET AL. CIVIL ACTION

v. NO. 18-9438

KAYLA HEATH, ET AL. SECTION "F"

ORDER AND REASONS

Before the Court is Dehendric Bickham’s motion for partial

summary judgment on causation. For the reasons that follow, the

motion is DENIED.

Background

This personal injury case arises out of a sideswipe collision

between an 18-wheeler and a Buick sedan. The Buick’s driver and

passenger both allege that they suffered injuries due to the

collision.

The collision occurred in the evening on November 5, 2017.

Kayla Heath was driving an 18-wheeler tractor-trailer in the left

lane of Highway 21 in Bogalusa, Louisiana. She was working for

Swift Transportation Company, hauling Wal-Mart grocery products on

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her regular route from Swift’s Robert, Louisiana terminal. Kenneth

Pigott was driving a 1997 Buick sedan in the right lane, and

Dehendric Bickham was riding along. When Heath changed lanes, she

moved the 18-wheeler into the right lane and struck the Buick.1

At the scene immediately following the accident, Pigott and Bickham

apparently told the police and emergency responders that they were

uninjured and did not need EMT services. Later, however, both

visited the emergency room claiming claim that they had neck and

back pain. This litigation followed.

Pigott and Bickham sued Heath and Swift in state court,

alleging that Heath’s negligence in failing to keep a proper

lookout, improper lane change, and careless operation caused the

collision and that Swift was vicariously liable under a theory of

respondeat superior. Pigott and Bickam allege (and Swift has

stipulated in its answer) that Heath was operating the tractor

trailer in the course and scope of her employment with Swift at

the time of the collision. Heath and Swift timely removed the

case to this Court, invoking the Court’s diversity jurisdiction.2

1 Liability is no longer disputed. The defendants continue to

submit that there was only minor damage to each vehicle from the

sideswipe and both Pigott and Bickham refused medical care at the

scene because they said they were uninjured, whereas the plaintiffs

submit that their car was forced from the roadway and they both

sustained injuries valued at millions of dollars.

2 Pigott and Bickham are citizens of Louisiana. Heath is a citizen

of Mississippi. Swift is a limited liability company with one

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Pigott and Bickham later amended their complaint.3 The defendants

have since stipulated to liability and motions in limine are

pending for a jury trial recently continued due to the COVID-19

pandemic. The passenger-plaintiff, Dehendric Bickham, claims that

he injured his neck, back, and right rib as a result of the

incident. He now seeks partial summary judgment that his right

rib fracture was caused by the vehicular accident that is the

subject of this lawsuit.

member: a Delaware corporation with a principal place of business

in Arizona.

3 When they moved to amend their complaint, the plaintiffs also

added a claim for punitive damages under Arizona law. But when

Swift appealed the magistrate judge’s ruling permitting the

amendment and moved for partial summary judgment on the punitive

damages claim, the Court granted Swift’s motion for partial summary

judgment (dismissing the punitive damages claim with prejudice),

which mooted the appeal of the magistrate judge’s order allowing

the amendment. See Order and Reasons dtd. 12/16/19. The plaintiffs

also amended their complaint to add claims of direct negligence

against Swift (including claims for negligent hiring, training,

supervision, and entrustment). The Court granted Swift’s motion

for partial summary judgment dismissing the plaintiffs’ claims

that Swift negligently hired, trained, supervised, and entrusted

Heath. See Order and Reasons dtd. 2/5/20 (joining other federal

district courts making an Erie guess and siding with employer-

defendants and granting the employer-defendant’s motion for

partial summary judgment dismissing the plaintiffs’ direct

negligence claims against because a plaintiff cannot

simultaneously pursue negligence under a theory of respondeat

superior and a direct negligence theory against an employer for

the same incident where, as here, the employer stipulates that the

employee acted in the course and scope of her employment).

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I.

Summary judgment is proper if the record discloses 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 dispute is

“genuine” if “the evidence is such that a reasonable jury could

return a verdict for the non-moving party.” Anderson v. Liberty

Lobby, 477 U.S. 242, 248 (1986). A fact is “material” if it “might

affect the outcome of the suit.” Id.

The Court emphasizes that the mere argued existence of a

factual dispute does not defeat an otherwise properly supported

motion. See id. Nor do “[u]nsubstantiated assertions, improbable

inferences, and unsupported speculation[.]” Brown v. City of

Houston, Tex., 337 F.3d 539, 541 (5th Cir. 2003); Hathaway v.

Bazany, 507 F.3d 312, 319 (5th Cir. 2007)("[T]he nonmoving party

cannot defeat summary judgment with conclusory allegations,

unsubstantiated assertions, or only a scintilla of evidence.").

Therefore, "[i]f the evidence is merely colorable, or is not

significantly probative," summary judgment is appropriate.

Anderson, 477 U.S. at 249-50 (citations omitted).

Summary judgment is also proper if the party opposing the

motion fails to establish an essential element of his case. See

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also In

re La. Crawfish Producers, 852 F.3d 456, 462 (5th Cir.

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2017)(citation omitted)(If the non-movant will bear the burden of

proof at trial, “the movant may merely point to an absence of

evidence, thus shifting to the non-movant the burden of

demonstrating by competent summary judgment proof that there is an

issue of material fact warranting trial.”). In this regard, the

non-moving party must do more than simply deny the allegations

raised by the moving party. See Donaghey v. Ocean Drilling &

Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he

must come forward with competent evidence, such as affidavits or

depositions, to buttress his claims. Id. Hearsay evidence and

unsworn documents that cannot be presented in a form that would be

admissible in evidence at trial do not qualify as competent

opposing evidence. Martin v. John W. Stone Oil Distrib., Inc.,

819 F.2d 547, 549 (5th Cir. 1987); FED. R. CIV. P. 56(c)(2).

Ultimately, to avoid summary judgment, the non-movant “must go

beyond the pleadings and come forward with specific facts

indicating a genuine issue for trial.” LeMaire v. La. Dep’t of

Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007).

In deciding whether a fact issue exists, the Court must view

the facts and draw reasonable inferences in the light most

favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372,

378 (2007); Midwest Feeders, Inc. v. Bank of Franklin, 886 F.3d

507, 513 (5th Cir. 2018). Although the Court must "resolve factual

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controversies in favor of the nonmoving party," it must do so "only

where there is an actual controversy, that is, when both parties

have submitted evidence of contradictory facts." Antoine v. First

Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)(internal quotation

marks and citation omitted).

II.

A.

Where, as here, jurisdiction is based on diversity, the Court

applies the substantive law of the forum, Louisiana. See Boyett v.

Redland Ins. Co., 741 F.3d 604, 607 (5th Cir. 2014) (citing Erie

R.R. Co. v. Tompkins, 304 U.S. 64 (1938)).

Civil Code Article 2315, Louisiana’s source of negligence

liability, instructs that “[e]very act whatever of man that causes

damage to another obliges him by whose fault it happened to repair

it.” LA. CIV. CODE art. 2315. Taking into account the conduct of

each party and the circumstances of each case, courts employ a

duty-risk analysis to determine whether to impose negligence

liability. Lemann v. Essen Lane Daiquiris, Inc., 2005-1095, p. 7

(La. 3/10/06); 923 So. 2d 627, 632.

To recover under the duty-risk approach, the plaintiffs must

prove five elements: (1) the defendants had a duty to conform their

conduct to a specific standard; (2) the defendants' conduct failed

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to conform to the appropriate standard; (3) the defendants'

substandard conduct was cause in fact of the plaintiffs’ injuries;

(4) the defendants' substandard conduct was a legal cause of the

plaintiffs’ injuries; and (5) actual damages. Audler v. CBC

Innovis, Inc., 519 F.3d 239, 249 (5th Cir. 2008)(citation omitted).

If the plaintiffs fail to prove one of these elements, then the

defendants are not liable. Here, the defendants have admitted

that they are 100% at fault for the sideswipe collision. Thus,

only causation and damages remain for trial.

Louisiana law places the burden on the plaintiff to prove

medical causation by a preponderance of the evidence; the test is:

“[w]hether the plaintiff proved through medical testimony that it

is more probable than not that the subsequent injuries were caused

by the accident.” See Maranto v. Goodyear Tire & Rubber Co., 94-

2603 (La. 2/20/95), 650 So. 2d 757, 759. When the determination

regarding medical causation is not within common knowledge, expert

medical testimony is required. See Pfiffner v. Correa, 94-0924

(La. 10/17/94), 643 So. 2d 1228, 1234-35. A plaintiff who proves

these three elements benefits from a presumption of medical

causation: (1) he was in “good health” before the accident; (2)

his symptoms manifested “continuously” after the accident; and (3)

there is a “reasonable probability” of causation between the

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accident and alleged injury. See Housley v. Cerise, 579 So. 2d

973, 980 (La. 1991)(citation omitted).

B.

Dehendric Bickham seeks partial summary judgment that the

11/5/17 sideswipe collision caused his right rib fracture. The

defendants counter that partial summary judgment should be denied

because (a) Bickham’s reliance on the opinion testimony of a

chiropractor (not a physician) is insufficient to prove medical

causation; and (b) that Bickham had no complaints or symptoms of

a fractured rib at the time of the accident and thus he fails to

show that his rib fracture symptoms manifested continuously from

the time of the collision. Although the Court is not persuaded by

the defendants’ legal arguments, the defendants’ evidentiary

submission creates a genuine dispute precluding summary judgment

on medical causation, specifically, whether Bickham’s rib fracture

was caused by the 11/5/17 accident.

There is some support in the record for the passenger-

plaintiff’s contention that he suffered a rib fracture caused by

the 11/5/17 collision. First, Bickham submits that there is

nothing in his pre-accident medical records to indicate he had

suffered a right rib fracture. And Bickham testified on May 22,

2019 that, since the accident, he has had “a lot of problems with

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[his] right rib and [his] back[.] That’s about it. My rib bothers

me a lot. Like, a lot, lot[.]” Second, Bickham’s treating

chiropractor, Dr. Harvey Nicaud, D.O., whom had referred Bickham

for the MRI, testified on July 25, 2019 that, in his opinion, the

treatment he provided to both plaintiffs post-accident “was ...

treatment causally related by the wreck that occurred in November

of 2017[.]”4 Third, when questioned by plaintiffs’ counsel, Dr.

Nejeeb Thomas, the defendants’ independent medical examiner,

offered this testimony respecting Bickham’s MRI results:

Q. If Mr. Bickham testified that the right-rib pain was

a result of the wreck that occurred on November 5th,

2017, and given the ... objective information just

provided, would you agree that his broken right rib was

a result of the wreck that occurred on November 5th,

2017?

A. Yes. To make sure I understand everything. He has

an MRI which shows a subacute right-rib fracture. Mr.

Bickham only complained of right-rib pain subsequent to

the accident, and that was the only trauma that he had,

and the pain began after the trauma, so with all three

of those assumptions, which I think is what you are

trying to get at, the answer is, yes.

4 Ten days post-accident, Bickham was first examined by

chiropractor, Dr. Nicaud. Later on January 26, 2018, Bickham

underwent an MRI, which indicated “suspicious for a subacute,

nondisplaced fracture of the lateral right 10th rib.”

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But the defendants submit evidence which creates a triable

issue concerning medical causation. Countering the plaintiff’s

evidence, the defendants submit that disputed issues of material

fact preclude partial summary judgment on the issue of whether the

sideswipe collision caused Bickham’s alleged rib fracture; the

defendants take issue with whether Bickham’s symptoms of a rib

fracture manifest continuously from the November 5, 2017 accident

until he first reported them to a healthcare provider, his

chiropractor, Dr. Harvey Nicaud, considering that Bickham failed

to report rib-fracture symptoms to either emergency responders or

to medical professionals at the emergency room within hours of the

accident, when he first reported symptoms allegedly manifesting

from the sideswipe collision.

Most notably, when presented with the emergency room records

the day of the accident showing no complaints or symptoms of rib

fracture, Dr. Thomas opined that Bickham’s rib fracture was not

caused by the sideswipe collision. In an unsworn declaration, Dr.

Thomas states that he reviewed the emergency room records for

Bickham the day of the accident and notes that there is no

complaint or reported symptoms of a rib fracture, whereas “[a] rib

fracture, like Mr. Bickham has, is an injury for which an

individual has significant rib pain immediately upon the rib being

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fractured and continuous pain and symptoms from the fractured rib,

especially the day the fracture occurs.” Given the absence of

complaints or symptoms from the day of the accident, Dr. Thomas

opines that “Mr. Bickham’s rib fracture was not caused by or

related to the motor vehicle accident he was involved in on

November 5, 2017.” Dr. Thomas further opines: “[i]f Mr. Bickham

had sustained a rib fracture in that accident, he would have had

immediate, continuous pain and symptoms from his rib fracture when

the accident happened and in the ER that day of the accident.”

The parties have presented evidence of contradictory facts.

On the one hand, Bickham (albeit implicitly) attributes his rib

pain to the accident at issue, there is a post-accident MRI

indicating a rib fracture, and Bickham’s chiropractor opines that

the rib fracture likely resulted from the accident. On the other

hand, it is undisputed that Bickham refused medical treatment at

the scene, did not report rib pain to medical professionals at the

emergency room later that day when reporting other symptoms had

manifested, and the defendants’ independent medical expert opines

“to a reasonable degree of medical probability that Mr. Bickham’s

rib fracture was not caused in the accident of November 5, 2017.”

A patent factual controversy concerning medical causation

precludes partial summary judgment.

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Accordingly, for the foregoing reasons, IT IS ORDERED: that

the plaintiff’s motion for partial summary judgment is DENIED.

New Orleans, Louisiana, April 14, 2021

MARTIN . Cy BRLDMAN

UNITED STATHS DISTRICT JUDGE

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