Eller v. Stoyan

KEVIN ELLER, Plaintiff, v. PETROV STOYAN and BENEFIT TRUCKING INC., Defendants.

No. 1:19-cv-01545-JMS-TAB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

July 27, 2020

ORDER

Plaintiff Kevin Eller was involved in a traffic collision with Defendant Petrov Stoyan. Mr. Eller filed this lawsuit against Mr. Stoyan and Mr. Stoyan's employer, Benefit Trucking Inc. ("Benefit"), seeking damages for injuries he alleges he suffered as a result of the collision. Defendants have filed a Motion for Partial Summary Judgment, [Filing No. 60], which is now ripe for the Court's decision.

I.

STANDARD OF REVIEW

A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R. Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e).

In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Williams v. Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome-determinative. Montgomery v. Am. Airlines Inc., 626 F.3d 382, 389 (7th Cir. 2010). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Gekas v. Vasilades, 814 F.3d 890, 896 (7th Cir. 2016). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Skiba v. Ill. Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). The Court need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), and the Seventh Circuit Court of Appeals has repeatedly assured the district courts that they are not required to "scour every inch of the record" for evidence that is potentially relevant to thesummary judgment motion before them. Grant v. Trs. of Ind. Univ., 870 F.3d 562, 573-74 (7th Cir. 2017). Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).

II.

STATEMENT OF FACTS

The following factual background is set forth pursuant to the standard detailed above. The facts stated are not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and the disputed evidence are presented in the light most favorable to "the party against whom the motion under consideration is made." Premcor USA, Inc. v. Am. Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).

A. The Collision

On Sunday February 18, 2018, Mr. Eller drove his pickup truck to mile marker 129 on Interstate 74 where his other vehicle had broken down. [Filing No. 51-2 at 14.] He parked his pickup truck such that the front of the pickup truck faced the front of the disabled vehicle so that he could attempt to jump-start the disabled vehicle. [Filing No. 62-1 at 15.] Mr. Eller's stepdaughter's boyfriend got out of the truck to open the hood and begin jumpstarting the disabled vehicle. [Filing No. 62-1 at 15-17.] Mr. Eller turned on the hazard lights of his pickup truck, but he was unable to do so for the disabled vehicle because the battery was dead. [Filing No. 61-2 at 15.]

As Mr. Eller was sitting on the driver's side of his pickup truck, a semitruck struck the front of the pickup truck head-on. [filing No. 62-1 at 18.] The cab and trailer of the semitruck went up and over the pickup truck, leaving tire tracks on top of the pickup truck and dragging the pickup truck roughly fifteen feet. [Filing No. 62-1 at 18-19.] The pickup truck's frame was bentand the airbags deployed. [Filing No. 62-1 at 18-19.] Mr. Eller's stepdaughter's boyfriend helped Mr. Eller out of the vehicle, and Mr. Eller called 9-1-1. [Filing No. 62-1 at 18.]

Police arrived first, and an ambulance arrived five to ten minutes later. [Filing No. 62-1 at 21.] Mr. Eller testified that he remembers being awake, standing, and describing what happened, but he does not recall whether he described any injuries to the police officer. When the EMS arrived, they checked Mr. Eller's blood pressure and gave him an IV. [Filing No. 62-1 at 23.] Mr. Eller testified that he was "in shock" and "the adrenaline was overwhelming." [Filing No. 62-1 at 19.] When the EMTs asked him about his injuries, he told them he was suffering from head and side pain. [Filing No. 62-1 at 23.] However, he did not know his shoulder was injured at that time and he did not convey that he was suffering any shoulder pain. [Filing No. 62-1 at 24.]

The ambulance transported Mr. Eller to the emergency department of Decatur County Hospital where he informed the doctor that he was suffering from head pain and neck pain, but again did not notice or feel any shoulder pain at that time. [Filing No. 62-1 at 26.] Ultimately, the ER doctor determined that Mr. Eller did not need to be admitted and Mr. Eller went home with instructions to follow up with his primary care physician if any pain or injuries persisted. [Filing No. 62-1 at 27.]

B. Mr. Eller's Medical Treatment

Mr. Eller testified that he discovered his shoulder was injured "a day or so" after the collision, and a few days after the collision—on "Monday or Tuesday"—Mr. Eller followed up with his primary care physician, Dr. Gryspeerdt. [Filing No. 62-1 at 24; Filing No. 62-1 at 31.] At that time, he told Dr. Gryspeerdt that he had started to suffer right shoulder pain and continued to have a headache, but his other injuries had subsided. [Filing No. 62-1 at 32.] Mr.Eller testified that he told his doctor that his shoulder pain was an eight on a one-to-ten pain scale. [Filing No. 62-1 at 33.] Additionally, Mr. Eller was unable to raise his right arm. [Filing No. 62-1 at 33.] Mr. Eller testified that Dr. Gryspeerdt performed the normal exams—"whatever you would do for a shoulder exam"—and Dr. Gryspeerdt's initial diagnosis was a torn bicep. [Filing No. 62-1 at 33-34.] Mr. Eller testified that he does not remember what course of treatment he was prescribed at that time, including whether he was prescribed any medications. [Filing No. 62-1 at 34.] However, Mr. Eller testified that if he was prescribed a painkiller, he wouldn't have filled the prescription. [Filing No. 62-1 at 35.]

After Mr. Eller's MRI results revealed a torn-rotator cuff, he went to see Dr. Argo, an orthopedic surgeon. [Filing No. 62-1 at 36.] Dr. Argo initially prescribed physical therapy, and Mr. Eller went to twelve sessions over a few months. [Filing No. 62-1 at 38.] After those sessions, Mr. Eller was still suffering from pain at "around seven or eight" on the one-to-ten pain scale, and Mr. Eller and his physical therapist agreed that physical therapy was not helping. [Filing No. 62-1 at 38-39.] Mr. Eller returned to Dr. Argo, and they agreed that surgery was the appropriate next step. [Filing No. 62-1at 40.] Mr. Eller has not yet scheduled that surgery due to financial restrictions. [Filing No. 62-1 at 40.]

Dr. Argo stated that he has not yet "seen the actual tissue inside the shoulder," but believes that "without surgical intervention, [Mr. Eller's] prognosis is poor, that the use of his arm will diminish over a period of time and he will get to the point where he will not be able to raise his arm in a normal fashion." [Filing No. 64-1 at 1.] Dr. Argo added that if Mr. Eller does undergo surgery, his recovery process will last "roughly nine months to a year," and Mr. Ellerwill miss "anywhere from six months to a year" of work.¹ [Filing No. 64-1 at 2.] Dr. Argo also opined that Mr. Eller stated to him that Mr. Eller had no symptoms prior to the collision, but that Dr. Argo has "no way of knowing whether or not [Mr. Eller's] injury occurred at [the time of the accident] other than by [Mr. Eller's] report." [Filing No. 64-1 at 2.]

Currently, Mr. Eller's shoulder still causes him pain. He testified: "I can't sleep a full night, I can't do anything above my head. . . . I can't golf, I can't crossbow hunt, I can't fish, I can't mow the yard, I can't start the lawnmower, I can't help the wife paint the ceilings. Anything that has to do with strength above my head, I don't have. I can't play with my grandkids, I can't hold them." [Filing No. 62-1 at 41-42.] Mr. Eller testified that his injury is worsening, and he believes that although he is still working,...