United States District Court, D. Vermont
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION IN LIMINE RE: PLAINTIFF'S PROFFERED BAD FAITH EXPERT WITNESS (DOCS. 19, 98)
Christina Reiss, Chief Judge
Plaintiff Teresa Gade brings this action against Defendant State Farm Mutual Automobile Insurance Company ("State Farm"), her automobile insurance carrier, for breach of contract and bad faith denial of insurance benefits arising out of motor vehicle collisions Plaintiff was involved in on January 3, 2008 and May 21, 2009. Plaintiffs bad faith claim arises out of State Farm's refusal to settle her uninsured motorist ("UM") claim arising out of the 2008 collision.
Pending before the court is State Farm's motion for partial summary judgment, wherein State Farm argues that Plaintiff cannot prevail on her bad faith claim because State Farm had a reasonable basis to deny her 2008 UM claim. Plaintiff opposes the motion. Also pending before the court is State Farm's Motion In Limine Re: Plaintiffs Proffered Bad Faith Expert Witness. (Doc. 98.) State Farm asks the court to find that its Motion for Partial Summary Judgment presents a question of law to be decided by the court and to further find that an expert witness opinion on the issue of whether an insurer has a reasonable basis to deny a claim is inadmissible. Plaintiff counters that the issue is one of fact and contends that her expert witness offers admissible evidence that must be considered in deciding whether partial summary judgment is appropriate.
Plaintiff is represented by Todd D. Schlossberg, Esq. State Farm is represented by Richard H. Wadhams, Jr., Esq. and Robin O. Cooley, Esq. The court held oral argument on this motion on September 26, 2014 and allowed additional discovery and briefing before ruling on the motion. The court took the motion under advisement on September 14, 2015.
I. The Undisputed Facts.
A. The 2008 Collision.
On January 3, 2008, Plaintiff, who was then forty years old, was involved in a motor vehicle collision in Winooski, Vermont, in which she was rear-ended by another driver who left the scene without providing his identification. A State of Vermont Uniform Crash Report (the "2008 Crash Report") describes the circumstances of the 2008 collision as follows:
On January 3, 2008, at approximately 1515 hours, I responded to the intersection of East Spring Street and Russell Street for a report of a motor vehicle crash. Dispatch advised that one of the vehicles had fled the scene.
Upon arrival I met with the operator of Vehicle #2, Gade. She advised that she had stopped at the stop sign for Westbound traffic when she was hit from behind. She went on to state that she got out of her vehicle and approached the vehicle that hit her. She stated that the Unknown male asked her to move out of traffic and when she moved he fled the scene.
Gade's only description of the operator and vehicle #2 is that it was a male operator and the vehicle was a dark colored van or truck. Gade did not see the license plate and could provide no further information.
Gade advised that she had a sore neck as a result of the crash.
Gade was provided a State of Vermont Uniform Crash Report and was advised to complete a Vermont Accident Report.
There are no suspects at this time for Operator # 1. No further action taken at this time.
(Doc. 22-4 at 2.)
The 2008 Crash Report contains no information regarding the other vehicle. It indicates that Plaintiff suffered a non-incapacitating injury, the airbag in her vehicle did not deploy, and she did not need to be extracted from her vehicle. It further states that Plaintiff was wearing a shoulder and lap belt and that her estimated speed at the time of the collision was zero miles per hour. The 2008 Crash Report does not indicate whether Plaintiffs vehicle required towing.
The following day, on January 4, 2008, Plaintiff reported the 2008 collision to State Farm, who advised Plaintiff there was no deductible for her property damage. The estimate to repair Plaintiffs vehicle totaled $333.40 and indicated a repair of the vehicle's rear bumper and paint and finish to the affected area. Plaintiff apparently chose not to have the vehicle repaired and subsequently sold it on September 14, 2009. Plaintiff did not advise State Farm of her personal injury claim resulting from the 2008 collision until after she consulted with legal counsel following the May 21, 2009 collision. She submits an affidavit in which she avers that, after the 2008 collision, State Farm did not inform her that she could bring a claim for UM benefits under her own policies for any physical injury she suffered.
B. Plaintiffs Medical History Before and After the 2008 Collision.
Prior to the 2008 collision, Plaintiff had a history of receiving treatment for neck and back pain and related symptoms. On August 22, 2002, Plaintiff visited Fletcher Allen Health Care for '"chronic neck problems'" and pain. (Doc. 19-8 at 1.) At the time, Plaintiffs treatment provider noted that Plaintiff had been experiencing increasing neck pain over the past six weeks and that Plaintiff rated her pain as a seven, presumably on a scale of one to ten.
On May 29, 2007, a MRJ examination revealed Plaintiff had "[d]egenerative disc disease including an area of osteophytic ridging and diffusely bulging disc at C6-7 level, which creates right-sided more than left-sided foraminal narrowing and lateral recess stenosis and mild disc bulge C5-C6 level." (Doc. 19-9 at 1.) On May 31, 2007, Plaintiff reported that "she has . . . neck pain that is fairly constant." (Doc. 19-10 at 1.)
On July 10, 2007, Plaintiff met with Stanley E. Grzyb, M.D. for a spinal consultation. Dr. Grzyb recorded the presenting "[p]roblem" as "[n]eck pain" and noted Plaintiff "has had very extensive past medical history regarding her lumbar spine" and that "Dr. Monsey had to perform a series of procedures for her." (Doc. 97-3 at 1.) Plaintiff reported to Dr. Grzyb that she "has experienced cervical spine discomfort for at least the last twelve months[, ]" "[s]he has a combination of both muscular discomfort and a deeper achy discomfort[, ]" and that "she has had very occasional numbness of the little and ring fingers of each hand." Id. Plaintiff reported "no upper extremity pain." Id. Plaintiff advised that when she tried to do activities that she enjoyed "including sky diving and running, she will have increased discomfort. Likewise, during normal every day activities she will experience the achy discomfort in the neck." Id. Plaintiff noted that she "has occasionally used Advil or Aleve" and that "[w]hen the discomfort is more intense, she will use Ultram." Id.
Dr. Grzyb recorded that Plaintiff "has noted a crackling, crunching sensation in the neck with motion" and that she "has had chiropractic care which did not lead to resolution of her discomfort" although when her chiropractor applied manual traction, it was beneficial. Id. Dr. Grzyb reviewed Plaintiffs cervical spine MRI and noted that "[f]he most significant change is at the C6-7 level where she has modest degenerative change with a bulging disc and associated osteophyte formation which creates bilateral foraminal lateral recess narrowing, more on the right than on the left" although she was "not experiencing any C7 radicular symptoms at the present time." Id. Dr. Grzyb diagnosed Plaintiff as having "[c]ervical spondylosis with primarily axial neck pain[, ]" id. at 2, and agreed with Plaintiffs decision to pursue conservative treatment consisting of physical therapy and traction.
From October 27, 2004 until the 2008 collision, Plaintiff saw Sean Mahoney, D.C. for chiropractic care on eleven occasions. Dr. Mahoney's initial "analysis reveal[ed] areas [of] cervical, thoracic and lumbar fixation and subluxations[.]" (Doc. 97-5 at 1.) Plaintiff experienced significant back pain during the period in question and reported injuries sustained on two separate occasions when she was lifting her child, groceries, and ice and on a separate occasion when she passed out and fell in the bathroom. During this time frame, she reported neck pain as follows: on January 12, 2005, Plaintiff complained of "neck and upper back pain[;]" on May 20, 2005, she noted she suffered from "frequent neck pain and stiffness[;]" on October 25, 2005, she again reported "frequent neck pain[;]" on September 7, 2007, she reported "continued neck and dorsal pain which is frequent and ranging from 4-6 on 10 scale[;]" and on December 18, 2007, she sought treatment for "neck and upper back pain and stiffness and extreme limitation of cervical motion[.]" Id. at 1-3. Dr. Mahoney noted "bilateral lateral bending, bilateral rotation, extension and flexion . . . [are] reported to be quite painful and palpating evokes a response of pain throughout the entire cervical spine and the dorsal spine to the thoracic four level." Id. at 3.
After the January 3, 2008 collision, Plaintiff saw Dr. Mahoney on January 15, 2008. She reported that she experienced "fairly severe-8 on 10 scale neck and upper back pain and spasm" and Dr. Mahoney observed that Plaintiffs "range of motion is very limited on lateral bending and rotation, extension and this is all reportedly quite painful." Id. Dr. Mahoney noted that Plaintiff responded well to the treatment he administered. His records do not indicate that Plaintiff reported that she had been involved in a motor vehicle collision. On January 18, 2008, Plaintiff saw Dr. Mahoney again and reported "continued severe neck pain averaging 8 on 10 scale with episodes of painful muscle spasm and very limited cervical range of motion." Id. at 3. Dr. Mahoney recorded that Plaintiff "did get a little bit of relief and is moving better than her last visit on the 15th." Id. His records do not mention the 2008 collision.
On January 22, 2008, Plaintiff saw Dr. Mahoney and "relat[ed] that her neck and upper back pain is doing very poorly and she rates this at a pretty strong eight on 10 scale today with a severe restricted cervical motion, muscle splinting and tenderness and also indicates pain radiating down into the left lower lumbar." (Doc. 97-5 at 5.) Dr. Mahoney's notes record that Plaintiff "does have a pre-existing disc bulge-herniation in the cervical spine and I indicated to her that this accident could well have aggravated that level of disc herniation and in fact caused a secondary area to be involved." Id. This is the first mention of the 2008 collision in Plaintiffs medical records.
On February 13, 2008, Plaintiff visited Dr. Grzyb for a follow-up visit for "[a]xial neck pain and right upper extremity paresthesias." (Doc. 97-6 at 1.) He noted that since he last saw Plaintiff, she had "followed a conservative treatment program with physical therapy, traction and was doing much better." Id. Dr. Grzyb recorded Plaintiffs description of the 2008 collision and the symptoms she suffered thereafter as follows:
She indicates that she was involved in an automobile accident on January , 2008. She was the driver of her vehicle and she indicates that she was struck from behind. She pulled over at the request of the driver who struck her and the driver continued on so she has no idea who caused the accident. She indicates that thereafter she experienced increasing neck pain as well as paresthesias in the right upper extremity. The paresthesias have involved the middle, ring and long fingers and also have involved the thumb and index fingers. She indicates that the paresthesias involving the little and ring fingers increase with flexion and extension activities of the cervical spine. She has worked with a chiropractic physician, Dr. Sean Mahoney, but this has not led to resolution of her discomfort. She has also tried traction, but the traction definitely increased her symptoms, specifically leaning to increase a sense of paresthesia in the right thumb and index finger.
Id. Dr. Grzyb, reviewed lateral x-rays of Plaintiff s cervical spine taken within the previous two weeks and noted that "the degenerative change at C6-7 with disk space narrowing at that level" was "similar to the MRI that was done last year." Id. Dr. Grzyb's assessment was "[a]xial neck pain, cervical spondylosis, right upper extremity symptoms that may be related to cervical radicular symptoms/thoracic outlet syndrome/cubital tunnel syndrome/ambiguous carpal tunnel syndrome." Id. He advised Plaintiff that she could pursue further evaluation through a repeat MRI.
On February 29, 2008, Plaintiff reported to Dr. Mahoney that her pain level was "just a little bit lower" and that she had been to a neurologist for testing who had diagnosed thoracic outlet syndrome. (Doc. 97-5 at 7.) Plaintiff advised that she thought she was suffering from a "cervical disc related issue" and Dr. Mahoney noted that he was "completely in accord with her evaluation of this situation based on her objective testing results, her past history and the mechanism of injury with the recent motor vehicle accident." Id. Plaintiff visited Dr. Mahoney fourteen times after the 2008 collision and prior to the 2009 collision without reporting significant or sustained improvement in her neck and back symptoms.
On February 28, 2008, Plaintiff visited Thomas J. Zweber, M.D. for an electrodiagnostic medicine consultation. Dr. Zweber described Plaintiffs "somewhat complicated history relating to her spine" as including a "fracture of her lumber spine approximately 10 years ago" and "[i]n the summer 2007, she began to have significant neck pain [and] had an evaluation showing some spinalDJD and disk disease." (Doc. 97- 7 at 1.) He noted that Plaintiff advised that she was "doing quite well" until the 2008 collision, which she described as follows:
In January 2008, she was rear ended by another car going perhaps 10 mile[s] per hour. She felt sudden immediate increased pain in her neck down into her right and left arms. Since then she has been having frequent numbness into her fourth and fifth fingers on her right greater than left hand. Ongoing neck pain and she states that she is quite bothered by this. It is affecting any of her physical activities where previously she was quite active athletically and at home.
Id. Dr. Zweber performed a nerve conduction study and an MRI and recorded the following impressions based on "an abnormal EMG/Nerve Conduction Study[:]"
1. Patient has mild to moderate right cubital tunnel syndrome.
2. She has mild to moderate left cubital tunnel syndrome.
3. She also appears to have bilateral mild thoracic outlet syndrome.
4. Despite some clinical suspicion for cervical radiculopathy, I was unable to document cervical radiculopathy, although with peripheral nerve irritability and entrapment it makes the diagnosis more difficult.
On March 5, 2008, Plaintiff received a second MRI evaluation, which revealed "bilateral neural foraminal stenosis right greater than left" on the C6-C7 level. (Doc. 19-14 at 1.) Heather Burbank reviewed the MRIs and opined that Plaintiffs condition was "unchanged from prior study" [Plaintiffs May 29, 2007 MRI] and her C6-C7 level "[d]oes not appear significantly changed from the prior study." Id.
On April 24, 2008, Plaintiff received treatment from Jerry Tarver, M.D. of the Vermont Interventional Spine Center. Dr. Tarver noted that Plaintiff presented "with a 4-month history of increased right neck pain with radiation of pain and numbness down her right arm into her second through fifth fingers" and reported that her symptoms began after a low-speed motor vehicle accident in which she was rear ended and that she had "a long history of chronic neck pain and generally very manageable." (Doc. 97-8 at 1.) He further noted that Plaintiff had a history of lumbar spine problems which included "persistent chronic low back pain" and surgery in 1995, 2000, and 2001. Id. Dr. Tarver recorded that a cervical MRI revealed "changes [that] are reportedly no different from a previous cervical MRI from the year before." Id. Dr. Tarver assessed cervical spondylosis and gave Plaintiff an injection of Isovue-200, Lidocaine, and Dexamethasone. On May 15, 2008, Plaintiff saw Dr. Tarver again and reported "very minimal relief from the steroid injections and no significant cessation of the symptoms she was experiencing in her fingers. (Doc. 97-9 at 1.) Dr. Tarver administered another steroid injection which also failed to provide any significant relief.
On July 29, 2008, Plaintiff was evaluated by Robert D. Monsey, M.D. of the Spine Institute of New England. Dr. Monsey recorded the following in the ...