UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

NANCY GUCWA and 

MARK MARUSZA, 

 Plaintiffs, Case No. 2:15-cv-10815-AJT-APP 

 Hon. Arthur J. Tarnow 

 v. 

DR. JEFFREY LAWLEY, DR. HARVEY 

AGER, DR. W. JOHN BAKER, DR. BARRY 

RUBIN and ACCIDENT FUND INSURANCE 

COMPANY OF AMERICA, 

 Defendants. 

 / 

MARSHALL LASSER (P25573) 

MARSHALL LASSER, P.C. 

Attorney for Plaintiffs 

P.O. Box 2579 

Southfield, MI 48037 

(248) 647-7722 

mlasserlaw@aol.com

MICHAEL D. WEAVER (P43985) 

PLUNKETT COONEY 

Attorney for Defendant Dr. W. John 

Baker 

38505 Woodward, Suite 2000 

Bloomfield Hills, Michigan 48304 

(248) 901-4025 

mweaver@plunkettcooney.com 

SCOTT D. MacDONALD (P45789) 

DIXON & MacDONALD 

Co-Counsel for Def. Dr. W. John Baker 

24901 Northwestern Highway 

Suite 200 

Southfield, MI 48075 

(248) 865-8866 

scottmac@dixon-macdonald.com

 / 

DEFENDANT DR. W. JOHN BAKER’S MOTION TO DISMISS 

2:15-cv-10815-AJT-APP Doc # 33 Filed 05/01/15 Pg 1 of 34 Pg ID 355
2

 NOW COMES Defendant, Dr. W. John Baker, by and through his attorneys, 

Plunkett Cooney, and moves for an order granting dismissal under Federal Rule of 

Civil Procedure 12(b)(6) because Plaintiffs failed to state a claim upon which relief 

can be granted. This Motion is based upon the legal authorities and arguments set 

forth in the Brief in Support of Motion to Dismiss. 

Respectfully submitted, 

PLUNKETT COONEY 

By: /s/Michael D. Weaver 

 MICHAEL D. WEAVER (P43985) 

 Attorney for Defendant 

 Dr. W. John Baker 

 38505 Woodward Avenue, Suite 2000 

 Bloomfield Hills, MI 48304 

 (248) 901-4025 

mweaver@plunkettcooney.com

Date: May 1, 2015 

2:15-cv-10815-AJT-APP Doc # 33 Filed 05/01/15 Pg 2 of 34 Pg ID 356
UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

NANCY GUCWA and 

MARK MARUSZA, 

 Plaintiffs, Case No. 2:15-cv-10815-AJT-APP 

 Hon. Arthur J. Tarnow 

 v. 

DR. JEFFREY LAWLEY, DR. HARVEY 

AGER, DR. W. JOHN BAKER, DR. BARRY 

RUBIN and ACCIDENT FUND INSURANCE 

COMPANY OF AMERICA, 

 Defendants. 

 / 

MARSHALL LASSER (P25573) 

MARSHALL LASSER, P.C. 

Attorney for Plaintiffs 

P.O. Box 2579 

Southfield, MI 48037 

(248) 647-7722 

mlasserlaw@aol.com

MICHAEL D. WEAVER (P43985) 

PLUNKETT COONEY 

Attorney for Defendant Dr. W. John 

Baker 

38505 Woodward, Suite 2000 

Bloomfield Hills, Michigan 48304 

(248) 901-4025 

mweaver@plunkettcooney.com 

SCOTT D. MacDONALD (P45789) 

DIXON & MacDONALD 

Co-Counsel for Def. Dr. W. John Baker 

24901 Northwestern Highway 

Suite 200 

Southfield, MI 48075 

(248) 865-8866 

scottmac@dixon-macdonald.com

 / 

DEFENDANT DR. W. JOHN BAKER’S 

BRIEF IN SUPPORT OF MOTION TO DISMISS 

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i

TABLE OF CONTENTS 

Page 

INDEX TO AUTHORITIES ..................................................................................... ii 

CONCISE STATEMENT OF THE ISSUES PRESENTED................................... vi 

CONTROLLING OR MOST APPROPRIATE AUTHORITY FOR THE RELIEF 

SOUGHT................................................................................................................. vii 

INTRODUCTION ..................................................................................................... 1 

STATEMENT OF FACTS ........................................................................................ 2 

STANDARD OF REVIEW ....................................................................................... 4 

ARGUMENT ............................................................................................................. 5 

A. The complaint fails to state a claim under RICO because 

Plaintiffs have not alleged an injury to business or 

property and, in any event, allegedly fraudulent IME 

reports do not constitute predicate acts under RICO and 

there is no allegation that anyone was deceived by the 

reports. ................................................................................................... 5 

1. Controlling law. ..................................................................................... 5 

2. Plaintiffs fail to allege an injury to business or property. ..................... 8 

3. Plaintiffs fail to state a claim under RICO because they have not 

alleged predicate acts........................................................................... 11 

B. Plaintiffs’ state law tortious interference claims must be 

dismissed because Plaintiffs cannot show a breach of 

contract or valid expectancy, and they fail to allege that 

Dr. Baker instigated any such breach or interference. ........................ 15 

C. If this court does not dismiss Plaintiffs’ claims against Dr. 

Baker, the case should be stayed until Marusza’s workers 

compensation proceedings are complete. ............................................ 19 

CONCLUSION ........................................................................................................23 

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ii

INDEX TO AUTHORITIES 

Page 

CASES

Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009) ....................................................................................... 4 

Ayres v. General Motors Corp., 

234 F.3d 514, 521-22 (11th Cir. 2000).................................................... vii, 12, 13 

Bender v. Southland Corp., 

749 F.2d 1205, 1216 (6th Cir.1984) .....................................................................14 

Bloch v. Ribar, 

156 F.3d 673, 677 (6th Cir. 1998) .......................................................................... 4 

Bridge v. Phoenix Bond & Indemnity Co., 

553 U.S. 639, 650-54 (2008) ......................................................................... vii, 14 

Brown v. Ajax Paving Indus., Inc., 

752 F.3d 656 (6th Cir. 2014) ........................................................................... vii, 9 

Brown v. Cassens Transp. Co., 

546 F.3d 347, 352 (6th Cir. 2008) .......................................................................... 5 

Burford v. Sun Oil Co., 

319 U.S. 315 (1943) .......................................................................... vii, 21, 22, 24 

CMI Intern, Inc v. Intermet Intern Corp, 

251 Mich. App. 125, 131; 649 N.W.2d 808 (2002) .............................................18 

Consol. Rail Corp. v. Grand Trunk W. R. Co., 

No. 13-2269, 2015 WL 1727306, at *5 (6th Cir. Apr. 15, 

2015) .....................................................................................................................21 

Craighead v. E.F. Hutton & Co., Inc., 

899 F.2d 485, 495 (6th Cir. 1990) .......................................................................... 6 

Dubuc v. El-Magrabi, 

489 Mich. 869, 795 N.W.2d 593 (2011) ..............................................................20 

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iii

Dzierwa v Michigan Oil Co, 

152 Mich App 281, 287; 393 NW2d 610, 613 (1986) .................................. 18, 20 

Evans v. Chicago, 

434 F.3d 916, 931 (7th Cir.2006) .........................................................................10 

Feldman v. Green, 

138 Mich. App. 360, 378; 360 N.W.2d 881 (1984) .............................................18 

Gray v. Bush, 

628 F.3d 779, 784 (6th Cir. 2010) ................................................................. vii, 22 

H.J. Inc. v. Nw. Bell Tel. Co., 

492 U.S. 229, 237-39 (1989) .................................................................................. 7 

Health Call of Detroit v Atrium Home & Health Care Services, 

Inc, 

268 Mich App 83, 89-90; 706 NW2d 843 (2005) ................................... vii, 18, 19 

Heinrich v. Waiting Angels Adoption Servs., Inc., 

668 F.3d 393, 404 (6th Cir. 2012) ......................................................................6, 7 

Holmes v. Sec. Investor Prot. Corp., 

503 U.S. 258, 269 (1992) .....................................................................................10 

In re ClassicStar Mare Lease Litig., 

727 F.3d 473, 483 (6th Cir. 2013) .......................................................................... 5 

Jackson v. Sedgwick Claims Mgmt. Serv’s., Inc., 

731 F3d 556, 562 (6th Cir. 2013 en banc) ................................ vii, 7, 8, 10, 11, 12 

Jackson v. Sedgwick Claims Mgmt. Servs., Inc., 

No. 09-11529, 2010 WL 931864, at *20 (E.D. Mich. Mar. 11, 

2010) .............................................................................................................. 12, 13 

Jackson v. Segwick Claims Mgmt. Servs., Inc., 699 F.3d 466, 

485 (6th Cir. 2012), reh'g en banc granted, opinion vacated, 

731 F.3d 556 (6th Cir. 2013) ................................................................................14 

LaMie v. Wright, 

No. 1:12-CV-1299, 2014 WL 1686145, at *20 (W.D. Mich. 

Apr. 29, 2014) report and recommendation adopted, No. 

1:12-CV-1299, 2014 WL 3341587 (W.D. Mich. July 8, 2014) ...........................10 

2:15-cv-10815-AJT-APP Doc # 33 Filed 05/01/15 Pg 6 of 34 Pg ID 360
iv

Lewis v. Drouillard, 

788 F. Supp. 2d 567, 571 (E.D. Mich. 2011) ................................................ 10, 11 

McGee v. State Farm Mut. Auto. Ins. Co., 

No. 08-CV-392 FB CLP, 2009 WL 2132439 (E.D.N.Y. July 

10, 2009) ........................................................................................................ vii, 15 

Mezibov v. Allen, 

411 F.3d 712, 716 (6th Cir. 2005) .......................................................................... 4 

Moon v. Harrison Piping Supply, 

375 F.Supp.2d 577 (E.D. Mich. 2005) aff'd in part, rev'd in 

part on other grounds and remanded, 465 F.3d 719 (6th Cir. 

2006) ........................................................................................................ 17, 23, 24 

Ouwinga v. Benistar 419 Plan Servs., Inc., 

694 F.3d 783, 792 (6th Cir. 2012) cert. denied, 133 S. Ct. 

2735 (2013).........................................................................................................6, 7 

Pik-Coal Co. v. Big Rivers Elec. Corp., 

200 F.3d 884, 890 n.10 (6th Cir. 2000) .................................................................. 6 

Reves v. Ernst & Young, 

507 U.S. 170, 183 (1993) ....................................................................................... 6 

Scheid v. Fanny Farmer Candy Shops, Inc., 

859 F.2d 434, 436 (6th Cir. 1988) .......................................................................... 4 

STATUTES

18 U.S.C. § 1341 ........................................................................................................ 7 

18 U.S.C. § 1343 ........................................................................................................ 7 

18 U.S.C. § 1961 ....................................................................................................1, 6 

18 U.S.C. § 1961(1) ................................................................................................... 7 

18 U.S.C. § 1961(4) ................................................................................................... 6 

18 U.S.C. § 1962(c) ................................................................................................... 5 

18 U.S.C. § 1962(d) ................................................................................................... 6 

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v

18 U.S.C. § 1964(c) ...............................................................................................7, 8 

28 U.S.C. § 1367(c)(3) .............................................................................................17 

M.C.L § 418.101 ........................................................................................................ 1 

M.C.L § 418.435 ........................................................................................................ 3 

RULES

Fed. R. Civ. P. 12(b)(6) ......................................................................... 4, 5, 9, 11, 25 

2:15-cv-10815-AJT-APP Doc # 33 Filed 05/01/15 Pg 8 of 34 Pg ID 362
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CONCISE STATEMENT OF THE ISSUES PRESENTED 

I. Does Plaintiffs’ complaint fail to state a claim under RICO where 

Plaintiffs fail to allege an injury to business or property and where, in 

any event, allegedly fraudulent IME reports do not constitute 

predicate acts under RICO and there is no allegation that anyone was 

deceived by the reports? 

Defendant Dr. W. John Baker answers, “yes.” 

II. Should Plaintiffs’ state law tortious interference claims be dismissed 

where Plaintiffs cannot show a breach of contract or valid expectancy, 

and where they fail allege that Dr. Baker instigated any such breach or 

interference? 

Defendant Dr. W. John Baker answers, “yes.” 

III. If this court does not dismiss Plaintiffs’ claims against Dr. Baker, 

should the case should be stayed until Marusza’s state worker’s 

compensation proceedings are complete? 

Defendant Dr. W. John Baker answers, “yes.” 

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vii

CONTROLLING OR MOST APPROPRIATE AUTHORITY FOR THE 

RELIEF SOUGHT 

Ayres v. General Motors Corp., 234 F.3d 514 (11th Cir.2000) 

Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639 (2008) 

Brown v. Ajax Paving Indus., Inc., 752 F.3d 656 (6th Cir. 2014) 

Burford v. Sun Oil Co., 319 U.S. 315 (1943) 

Gray v. Bush, 628 F.3d 779 (6th Cir. 2010) 

Health Call of Detroit v Atrium Home & Health Care Services, Inc, 268 Mich App 

83; 706 NW2d 843 (2005) 

Jackson v. Sedgwick Claims Mgmt. Servs., Inc., No. 09-11529, 2010 WL 931864 

(E.D. Mich. Mar. 11, 2010) 

Jackson v. Sedgwick Claims Mgmt. Serv’s., Inc., 731 F3d 556, 562 (6th Cir. 2013 

en banc) 

McGee v. State Farm Mut. Auto. Ins. Co., No. 08-CV-392 FB CLP, 2009 WL 

2132439 (E.D.N.Y. July 10, 2009) 

Moon v. Harrison Piping Supply, 375 F. Supp. 2d 577 (E.D. Mich. 2005) aff'd in 

part, rev'd in part and remanded, 465 F.3d 719 (6th Cir. 2006) 

Moon v. Harrison Piping Supply, 465 F.3d 719 (6th Cir. 2006) 

2:15-cv-10815-AJT-APP Doc # 33 Filed 05/01/15 Pg 10 of 34 Pg ID 364
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INTRODUCTION 

 Plaintiffs, Mark Marusza (“Marusza”) and Nancy Gucwa (“Gucwa”) 

(collectively, “Plaintiffs”), have filed an action against defendant W. John Baker 

(“Dr. Baker”), a neuropsychologist, other doctors, and Accident Fund Insurance 

Company of America (“Accident Fund”) alleging violations of the Racketeer 

Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. 

through a scheme to fraudulently deny benefits due under Michigan’s Worker’s 

Disability Compensation Act, M.C.L § 418.101 et seq. (“WDCA”). As against Dr. 

Baker and the other doctors, the complaint also alleges state law claims of tortious 

interference with a contract or expected economic advantage. 

 Plaintiffs’ complaint should be dismissed where it fails to state a claim under 

RICO because it does not sufficiently allege an injury to property or predicate acts. 

Upon dismissing the RICO claim, the court should decline to exercise jurisdiction 

over the state law claim. But in any event, the tortious interference claims should 

also be dismissed because the complaint fails to allege breach of contract or 

interference with a valid business expectancy, and further, it does not allege that 

Dr. Baker instigated any such breach. Finally, in the event that the court does not 

dismiss one or more of the claims against Dr. Baker, it should stay proceedings 

until Marusza’s state worker’s compensation hearing is complete. 

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STATEMENT OF FACTS 

 On March 25, 2015, Plaintiffs filed a first amended complaint, alleging that 

Marusza suffered a traumatic brain injury arising out of an October 18, 2011 

automobile accident and that Accident Fund denied this injury, fraudulently denied 

him worker’s compensation benefits, and refused to pay Gucwa for attendant care 

services she provided to Marusza. (Doc # 2, Complaint, ¶¶ 4, 13). 

 In Count I, RICO cause of action, with respect to Dr. Baker, the complaint 

alleges that he and Accident Fund, which provided worker’s compensation 

insurance to Marusza’s employer, agreed that Dr. Baker should conduct 

independent medical examinations of Marusza, and that Dr. Baker subsequently 

mailed reports from his examinations of Marusza to Accident Fund on April 27, 

2012, September 7, 2012, May 1, 2014, and June 8, 2014. (Doc # 2, Complaint, ¶¶ 

4, 11, 17A). Dr. Baker reported that he found no support for a diagnosis of 

cognitive impairment secondary to traumatic brain injury. (Id., ¶ 27). Plaintiffs 

allege that the reports were biased in favor of Accident Fund and did not honestly 

report on Marusza’s condition. (Id., ¶ 26). 

 The complaint alleges a scheme against Accident Fund wherein Accident 

Fund “committed mail fraud, wire fraud and conspiracy to defraud in a repeated 

and continuing pattern extending over years, against Michigan injured workers and 

providers of services to these injured workers.” (Doc # 2, Complaint, ¶ 13). The 

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complaint asserts that the scheme consisted of, inter alia, fraudulently terminating 

or denying benefits and repeatedly hiring Dr. Baker and others to do examinations 

under M.C.L § 418.435 when Accident Fund knew that these doctors were highly 

likely to write reports finding that the claimant had no work-related disability, 

regardless of truth. (Id.). 

 Relying on the allegations against Accident Fund, the complaint further 

alleged a scheme against Dr. Baker (and Dr. Harvey Ager) wherein, over a 20-year 

period, the doctors “committed mail fraud; wire fraud and conspiracy to defraud in 

a repeated and continuing pattern, against persons claiming injuries due to motor 

vehicle and other [sic] giving fraudulent testimony in workers compensation, no 

fault insurance and other types of cases.” (Doc # 2, Complaint, ¶ 14). Plaintiffs 

allege that Dr. Baker “wrote hundreds of reports which were intentionally biased, 

unobjective, and dishonest, deliberately favoring whichever insurer hired him, 

knowing the insurer could use these reports as grounds to deny benefits.” (Id., ¶ 

11). 

 In Count III, Plaintiffs assert a claim of tortious interference with a contract 

and/or “expected economic advantage” against Dr. Baker and others, arguing that 

the doctors wrote deliberately biased and dishonest reports for Accident Fund upon 

which Accident Fund relied to deny worker’s compensation benefits to Marusza, 

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which included payment for Gucwa’s attendant care services. (Doc # 2, 

Complaint, ¶ 60). 

 Dr. Baker now moves for dismissal under Fed. R. Civ. P. 12(b)(6). 

STANDARD OF REVIEW 

 A motion for dismissal based on Rule 12(b)(6) tests whether a cognizable 

claim has been pled. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 

436 (6th Cir. 1988). Courts are to construe complaints in the light most favorable 

to the non-movant and accept all factual allegations as true. Bloch v. Ribar, 156 

F.3d 673, 677 (6th Cir. 1998). However, courts are not required to accept as true 

legal conclusions or unwarranted factual inferences in the complaint. Mezibov v. 

Allen, 411 F.3d 712, 716 (6th Cir. 2005). “To survive a motion to dismiss, a 

complaint must contain sufficient factual matter, accepted as true, to state a claim 

to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

“A claim has facial plausibility when the plaintiff pleads factual content that allows 

the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id. Only a complaint that states a plausible claim for relief 

survives a motion to dismiss. Id. at 679. 

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ARGUMENT 

A. The complaint fails to state a claim under RICO because Plaintiffs 

have not alleged an injury to business or property and, in any 

event, allegedly fraudulent IME reports do not constitute 

predicate acts under RICO and there is no allegation that anyone 

was deceived by the reports. 

 Plaintiffs’ complaint must be dismissed under Fed. R. Civ. P. 12(b)(6) 

because it fails to state a claim under RICO where the complaint does not 

sufficiently allege an injury to property or predicate acts. 

1. Controlling law. 

 RICO makes it a crime “for any person employed by or associated with any 

enterprise engaged in, or the activities of which affect, interstate or foreign 

commerce, to conduct or participate, directly or indirectly, in the conduct of such 

enterprise's affairs through a pattern of racketeering activity or collection of 

unlawful debt.” Brown v. Cassens Transp. Co., 546 F.3d 347, 352 (6th Cir. 2008), 

quoting 18 U.S.C. § 1962(c). To state a claim under this section, a plaintiff must 

plead: “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering 

activity.” In re ClassicStar Mare Lease Litig., 727 F.3d 473, 483 (6th Cir. 2013). 

Additionally, 18 U.S.C. § 1962(d) makes it “unlawful for any person to conspire to 

violate any of the provisions of subsection (a), (b), or (c) of this section.” Under 

that provision, the plaintiff must “detail[ ] an agreement to jointly undertake 

specific actions illegalized by RICO,” other elements of a conspiracy claim, and 

2:15-cv-10815-AJT-APP Doc # 33 Filed 05/01/15 Pg 15 of 34 Pg ID 369
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the underlying RICO violations. Pik-Coal Co. v. Big Rivers Elec. Corp., 200 F.3d 

884, 890 n.10 (6th Cir. 2000), citing Craighead v. E.F. Hutton & Co., Inc., 899 

F.2d 485, 495 (6th Cir. 1990). 

 Participation in the conduct of an enterprise's affairs “requires proof that the 

defendant participated in the ‘operation or management’ of the enterprise.” 

Ouwinga v. Benistar 419 Plan Servs., Inc., 694 F.3d 783, 792 (6th Cir. 2012) cert. 

denied, 133 S. Ct. 2735 (2013), citing Reves v. Ernst & Young, 507 U.S. 170, 183 

(1993). RICO defines an “enterprise” as “any individual, partnership, corporation, 

association, or other legal entity and any union or group of individuals associated 

in fact although not a legal entity.” Id. at 793, quoting 18 U.S.C. § 1961(4). 

 “A pattern of racketeering activity requires at least two acts of racketeering 

activity.” Heinrich v. Waiting Angels Adoption Servs., Inc., 668 F.3d 393, 404 (6th 

Cir. 2012) (internal punctuation omitted). The minimum two acts are not 

necessarily sufficient, and therefore, a plaintiff must show “that the racketeering 

predicates are related, and that they amount to or pose a threat of continued 

criminal activity.” Ouwinga, 694 F.3d at 795, quoting H.J. Inc. v. Nw. Bell Tel. 

Co., 492 U.S. 229, 237-39 (1989). 

 “Racketeering activity” is defined as “any act which is indictable under” 18 

U.S.C. § 1341 (relating to mail fraud) and 18 U.S.C. § 1343 (relating to wire 

fraud). Brown, 546 F.3d at 352, citing 18 U.S.C. § 1961(1). “Mail fraud consists 

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of (1) a scheme to defraud, and (2) use of the mails in furtherance of the scheme. 

The elements of wire fraud are essentially the same except that one must use the 

wires in furtherance of the scheme to defraud.” Heinrich, 668 F.3d at 404 (internal 

punctuation and citation omitted). “A scheme to defraud includes any plan or 

course of action by which someone uses false, deceptive, or fraudulent pretenses, 

representations, or promises to deprive someone else of money.” Id. (citation 

omitted). “A plaintiff must also demonstrate scienter to establish a scheme to 

defraud, which is satisfied by showing the defendant acted either with a specific 

intent to defraud or with recklessness with respect to potentially misleading 

information.” Id. 

 Finally, to establish a RICO violation, a plaintiff must show injury to his 

business or property. Jackson v. Sedgwick Claims Mgmt. Serv’s., Inc., 731 F3d 

556, 562 (6th Cir. 2013 en banc). 18 U.S.C. § 1964(c) provides in relevant part: 

“Any person injured in his business or property by reason of a violation of section 

1962 of this chapter may sue therefor in any appropriate United States district court 

and shall recover threefold the damages he sustains and the cost of the suit, 

including a reasonable attorney's fee . . . .” The phrase ‘by reason of’ in § 1964(c) 

imposes a proximate cause requirement. Jackson, 731 F.3d 563. 

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2. Plaintiffs fail to allege an injury to business or property. 

Neither Marusza nor Gucwa can show an injury to business or property and 

thus they lack standing to bring a RICO claim against Dr. Baker. Marusza alleges 

that he suffered a traumatic brain injury and that he was fraudulently denied 

worker’s compensation benefits through a pattern of racketeering activity 

perpetrated by Dr. Baker and others. (Doc. #2, Complaint, ¶¶ 6, 11, 14, 47). The 

Sixth Circuit addressed this very issue in Jackson, 731 F.3d at 566, and plainly 

held that “racketeering activity leading to a loss or diminution of benefits the 

plaintiff expects to receive under a workers' compensation scheme does not 

constitute an injury to ‘business or property’ under RICO.”1

 

 Despite the clear directive of this holding, Marusza argues that Jackson

should not apply to his claim against an independent medical examiner such as Dr. 

Baker. (Doc. #2, Complaint, ¶ 6). But the Sixth Circuit has spoken on this issue as 

well. In Brown v. Ajax Paving Indus., Inc., 752 F.3d 656 (6th Cir. 2014), the 

plaintiff argued that Jackson applied only to claims against an employer but was

inapplicable to claims against insurers, administrators, and doctors. The Court 

rejected this position, stating that “[t]o limit Jackson to lawsuits against employers 

is to rewrite history.”2

 Id. at 658. The Court reiterated that “expected workers' 

 

1

 Plaintiffs’ counsel in this case also represented the plaintiffs in Jackson. 

2

 Plaintiffs’ counsel in this case also represented the plaintiff in Brown. 

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compensation benefits stand outside the Act's perimeter because they flow from 

personal injuries. . . . [E]xtending the Act to expected workers' compensation 

benefits would clash with the States' customary control of their workers' 

compensation systems.” Id. Thus, having failed to assert an injury to business or 

property, Marusza lacks standing to bring a RICO claim. Accordingly, Marusza’s 

claim against Dr. Baker for a RICO violation should be dismissed under Fed. R. 

Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. 

 For all of the same reasons, Gucwa’s RICO claim against Dr. Baker must 

also be dismissed because she, too, fails to assert an injury to property or business. 

Although Gucwa alleges injury from “non payment and delay of payment for the 

attendant care services she provided” (Doc # 2, Complaint, ¶ 47), Gucwa’s claim 

arises out of the denial of worker’s compensation benefits to Marusza because she 

expected payment out of his benefits. As held in Brown, “expected workers' 

compensation benefits stand outside the Act's perimeter because they flow from 

personal injuries. . . .” 752 F.3d at 658. Additionally, “[n]ot only are the injuries 

themselves excluded from recovery under RICO; pecuniary losses from the 

injuries, such as lost earnings, medical expenses, and attorney fees, are excluded as 

well.” Lewis v. Drouillard, 788 F. Supp. 2d 567, 571 (E.D. Mich. 2011), citing 

Evans v. Chicago, 434 F.3d 916, 931 (7th Cir.2006). See also LaMie v. Wright, 

No. 1:12-CV-1299, 2014 WL 1686145, at *20 (W.D. Mich. Apr. 29, 2014) report 

2:15-cv-10815-AJT-APP Doc # 33 Filed 05/01/15 Pg 19 of 34 Pg ID 373
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and recommendation adopted, No. 1:12-CV-1299, 2014 WL 3341587 (W.D. Mich. 

July 8, 2014), citing Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 269 (1992) 

(Addressing proximate cause element of injury requirement, the court held that 

“[h]arm flowing from wrongs visited upon third parties will not support a RICO 

claim.”). Moreover, Jackson instructed that “an award of benefits under a workers' 

compensation system and any dispute over those benefits are inextricably 

intertwined with a personal injury giving rise to the benefits.” Jackson, 731 F.3d at 

566. Gucwa is claiming benefits due and owing to Marusza and allowing her to 

prevail on a claim which Marusza cannot himself advance would allow her to 

“use[] RICO to collaterally attack an administrative scheme created by state law to 

supplant personal injury tort claims” – and would thus be contrary to the holding in 

Jackson. Id. at 566-67. 

 Finally, Dr. Baker agrees with the argument made by Accident Fund in its 

Motion to Dismiss. (Doc. #27, pp 11-12, Pg ID# 219-20). That is, Marusza’s 

worker’s compensation hearing to determine “all benefits due and owing” is 

scheduled to occur in June 2015. Until then, even if Gucwa did have any type of 

interest in Marusza’s worker’s compensation benefits by reason of the attendant 

care services she allegedly provided, it is only an expectancy interest and not a 

property interest. “A plaintiff does not have a property interest in workers' 

compensation benefits until there has been a final administrative determination that 

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11

such benefits are due.” Lewis, 788 F. Supp. 2d at 571. “Injury to speculative or 

expectancy interests is not cognizable under RICO.” Id. 

 Clearly then, neither Marusza nor Gucwa can show an injury to business or 

property and thus they lack standing to bring a RICO claim against Dr. Baker and 

their complaint should be dismissed under Fed. R. Civ. P. (12)(b)(6). 

3. Plaintiffs fail to state a claim under RICO because they 

have not alleged predicate acts. 

 The complaint alleges that Dr. Baker conducted independent medical 

examinations of Marusza, and that he subsequently mailed reports from his 

examinations of Marusza to Accident Fund on April 27, 2012, September 7, 2012, 

May 1, 2014, and June 8, 2014. (Doc. #2, Complaint, ¶¶ 4, 11, 17A). Dr. Baker 

reported that he found no support for a diagnosis of cognitive impairment 

secondary to traumatic brain injury. (Id., ¶ 27). Plaintiffs allege that Dr. Baker’s 

reports were biased in favor of Accident Fund and did not honestly report on 

Marusza’s condition. (Id. ¶ 26). The mailing of allegedly fraudulent IME reports 

does not constitute a predicate act under RICO, and even if mailing the reports did 

amount to mail fraud, there is no allegation that anyone was deceived by the 

reports, and therefore, Plaintiffs fail to state a claim under RICO. 

 The district court opinion in Jackson, which was ultimately affirmed by the 

Sixth Circuit, explained that a violation of administrative duties created by the 

WDCA—even if fraudulent—does not amount to mail or wire fraud sufficient to 

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12

give rise to liability under RICO. Jackson v. Sedgwick Claims Mgmt. Servs., Inc., 

No. 09-11529, 2010 WL 931864, at *20 (E.D. Mich. Mar. 11, 2010), citing Ayres 

v. General Motors Corp., 234 F.3d 514, 521-22 (11th Cir. 2000) (dismissing RICO 

claim based upon allegedly fraudulent violation of the National Traffic and Motor 

Vehicle Safety Act). 

 Plaintiffs’ claims here are similar to those in Jackson, where the plaintiffs 

argued that the defendant employer, claims management company, and doctor 

fraudulently breached duties owed to Plaintiffs under the WDCA, i.e., the duties to 

fairly and honestly evaluate their claims, and that the fraudulent breach of these 

duties amounted to mail and wire fraud sufficient to trigger RICO liability. 

Jackson, 2010 WL 931864, at *15. Specifically, the Jackson plaintiffs, like 

Plaintiffs in this case, alleged that the defendant doctor conducted an IME, wrote a 

fraudulent report of his findings, and mailed it to the claims management company, 

which relied on the report to cut off the plaintiffs’ benefits. 

 Relying on the 11th Circuit decision in Ayres, the district court in Jackson

concluded that the WDCA “was not meant to create the kind of duty, a breach of 

which would create criminal liability or civil liability under RICO statutes.” Id. at 

20, quoting Ayres, 234 F.3d at 522. The court reasoned: 

[T]he WDCA establishes its own extensive array of administrative 

remedies for a violation of the duty to pay claims. An injured 

employee does not have a private right of action under the WDCA; on 

the contrary, the WDCA abolished an employee's right to sue and 

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13

required them to exclusively pursue its administrative remedies. See 

Mich. Comp. Laws § 418.131. Furthermore, the WDCA does not 

provide for criminal penalties for violations of the duties it imposes; 

on the contrary, the WDCA contains a strict limitation of liability that 

applies even where an employer disputes a claim in bad faith. 

Thus, as in Jackson, Plaintiffs allegations here that Dr. Baker mailed fraudulent 

reports upon which Accident Fund relied to deny him benefits do not amount to 

mail fraud and cannot sustain a RICO claim. 

 Moreover, even if Dr. Baker’s acts of mailing allegedly inaccurate reports of 

the results of several independent medical evaluations of Marusza and others do 

amount to mail fraud, such allegations here still fail to sustain a RICO claim 

because, as Accident Fund argues in its motion to dismiss, no one was deceived by 

this alleged fraud. (See Doc #27, Accident Fund’s Motion to Dismiss, pp 16-21, 

Pg ID# 224-29). 

 RICO claims of mail fraud require allegations of intent to deceive. Bender 

v. Southland Corp., 749 F.2d 1205, 1216 (6th Cir.1984). As recognized by the 

concurring opinion in the first 6th Circuit Jackson case (see Jackson v. Segwick 

Claims Mgmt. Servs., Inc., 699 F.3d 466, 485 (6th Cir. 2012), reh'g en banc

granted, opinion vacated, 731 F.3d 556 (6th Cir. 2013) (Batchelder J., 

concurring)), in Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639, 650-54 

(2008), the Supreme Court held that first-party reliance is not required in a civil 

RICO action, however, the Court clarified that “none of this is to say that a RICO 

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plaintiff who alleges injury ‘by reason of’ a pattern of mail fraud can prevail 

without showing that someone relied on the defendant's misrepresentations.” Id. at 

658 (emphasis in the original). Indeed, “[i]n most cases, the plaintiff will not be 

able to establish even but-for causation if no one relied on the misrepresentation.” 

Id. 

 This concept is demonstrated in McGee v. State Farm Mut. Auto. Ins. Co., 

No. 08-CV-392 FB CLP, 2009 WL 2132439 (E.D.N.Y. July 10, 2009), the case 

cited in Accident Fund’s brief. In McGee, the plaintiff doctor accused an insurer, 

two IME referral services, and several health care providers of conspiring to 

fraudulently deny him reimbursement for medical procedures he performed in a 

scheme analogous to the one alleged here by Plaintiffs. The district court 

determined that the doctor failed to show that anyone was deceived by the alleged 

scheme, explaining: 

In the conspiracy which [the plaintiff doctor] alleges . . . none of the 

defendants' conduct is calculated to deceive anyone. The Providers' 

allegedly falsified IME reports are not calculated to deceive State 

Farm because State Farm ordered the falsification in the first place. 

Neither are the reports calculated to deceive [the plaintiff]: he knows 

full well what his own patients' true condition is, and defendants' 

reports are not intended to convince him otherwise. Nor are the 

reports calculated to deceive [the plaintiff’s] patients, who apparently 

do not even receive them, and who are aware of their own injuries in 

any event. In sum, while defendants' alleged conduct is dishonest and 

unfair, no one is intended to be duped or taken in. Thus, while this 

alleged scheme may violate some other state or federal law or 

constitute a breach of contract, it is not redressable under a mail-or 

wire-fraud theory. 

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Id. at *5-6. 

 The scheme alleged here by Plaintiffs fails for the same reasons. According 

to the complaint, Accident Fund deliberately uses various doctors, including Dr. 

Baker, to conduct examinations for workers compensation purposes, because 

Accident Fund expects that they will not give unbiased, objective and honest 

opinions, but rather, will write reports favorable to Accident Fund by falsely 

finding no or very limited work-related injury or disability, at which point, 

Accident Fund can deny benefits. (Doc # 2, Complaint, ¶¶ 9, 13-14). Thus, no one 

was deceived by this scheme: Dr. Baker’s allegedly falsified IME reports are not 

calculated to deceive Accident Fund because Accident Fund expects that Dr. Baker 

will not find disability, which is why it requests that he conduct the IME the first 

place. Similarly, the reports have not deceived Marusza because he believes 

himself to be suffering from a traumatic brain injury. Accordingly, there is no 

allegation that anyone was deceived by Dr. Baker’s alleged acts of mail fraud and 

Plaintiffs’ RICO claims fail as a matter of law. 

B. Plaintiffs’ state law tortious interference claims must be dismissed 

because Plaintiffs cannot show a breach of contract or valid 

expectancy, and they fail to allege that Dr. Baker instigated any 

such breach or interference. 

 Plaintiffs allege that a false medical report from an independent medical 

examiner that leads to the denial of insurance benefits constitutes tortious 

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16

interference with a contract or tortious interference with a business expectancy 

under Michigan law. (Doc # 2, Complaint, ¶ 51). First of all, if this court 

dismisses the RICO claims against Dr. Baker, it should decline to exercise 

jurisdiction over this state law claim. “[A] federal court that has dismissed a 

plaintiff's federal-law claims should not ordinarily reach the plaintiff's state-law 

claims. See 28 U.S.C. § 1367(c)(3). Residual jurisdiction should be exercised only 

in cases where the interests of judicial economy and the avoidance of multiplicity 

of litigation outweigh our concern over needlessly deciding state law issues.” 

Moon v. Harrison Piping Supply, 465 F.3d 719, 728 (6th Cir. 2006) (internal 

citations omitted). There is no reason for this court to retain jurisdiction over the 

state law claim, which, like the alleged RICO claim, hinges on issues arising under 

Michigan’s WDCA, and those issues are yet to be resolved by the Worker’s 

Disability Compensation Board. 

 In any event, Plaintiffs’ claims must be dismissed because Plaintiffs cannot 

show a breach of a contract or valid expectancy, and they fail to allege that Dr. 

Baker instigated any such breach or interference. The elements of tortious 

interference with a contract are (1) the existence of a contract, (2) a breach of the 

contract, and (3) an unjustified instigation of the breach by the defendant. Health 

Call of Detroit v Atrium Home & Health Care Services, Inc, 268 Mich App 83, 89-

90; 706 NW2d 843 (2005); Dzierwa v Michigan Oil Co, 152 Mich App 281, 287; 

2:15-cv-10815-AJT-APP Doc # 33 Filed 05/01/15 Pg 26 of 34 Pg ID 380
17

393 NW2d 610, 613 (1986). To prove tortious interference with a contract, a 

plaintiff must allege the intentional doing of a per se wrongful act or the doing of a 

lawful act with malice and unjustified in law for the purpose of invading the 

contractual rights of another. CMI Intern, Inc v. Intermet Intern Corp, 251 Mich. 

App. 125, 131; 649 N.W.2d 808 (2002), quoting Feldman v. Green, 138 Mich. 

App. 360, 378; 360 N.W.2d 881 (1984). 

 Similarly, the elements of tortious interference with a business relationship 

or expectancy are (1) the existence of a valid business relationship or expectancy 

that is not necessarily predicated on an enforceable contract, (2) knowledge of the 

relationship or expectancy on the part of the defendant interferer, (3) an intentional 

interference by the defendant inducing or causing a breach or termination of the 

relationship or expectancy, and (4) resulting damage to the party whose 

relationship or expectancy was disrupted. Health Call of Detroit, 268 Mich. App. 

at 90. 

 In this case, Plaintiffs do not clearly identify any contract at issue or 

otherwise. There is presumably a contract between Marusza and Gucwa for 

attendant care services, however, there is no allegation that the contractual 

relationship between the two has been breached by either party. Presumably, 

Plaintiffs claim to be third party beneficiaries of Accident Fund’s insurance 

contract with Marusza’s employer, from which they expect compensation in the 

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18

form of worker’s compensation benefits. But Plaintiffs cannot show breach of the 

insurance contract, a necessary element of tortious interference with a contract. 

Health Call, 268 Mich App at 89-90. That is, Plaintiffs cannot show that Accident 

Fund improperly denied Marusza benefits to which he is supposedly entitled and 

with which Gucwa would be compensated for her attendant care services because 

there has not yet been a ruling on Marusza’s claim by the Worker’s Disability 

Compensation Board. Accordingly, having failed to show a breach of contract, 

this claim fails as a matter of law. Likewise, Plaintiffs cannot show interference 

with any “valid business relationship or expectancy,” because again, whether 

Plaintiffs’ expectancy of receiving benefits is valid depends on the outcome of the 

hearing that is scheduled for June 2015. 

 Moreover, the complaint does not allege that Dr. Baker instigated a breach 

of the insurance contract or that he intentionally interfered with any relationship or 

expectancy of the Plaintiffs which induced a breach of that expectancy. To the 

contrary, as discussed above, Plaintiffs’ 63-paragraph complaint alleges a 

conspiracy between Accident Fund and Dr. Baker (as well as other doctors) in 

which Accident Fund deliberately requested reports from Dr. Baker, expecting that 

the reports would find no disability (and here, specifically, that the reports would 

find no evidence of a traumatic brain injury), for the specific purpose of denying 

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benefits to Marusza.3 Thus, if the complaint here does allege any breach of 

contract or expectancy, it is alleging that Accident Fund itself was responsible for 

any instigation of the breach.4

 Accordingly, the state law tortious interference 

claims against Dr. Baker should be dismissed. 

C. If this court does not dismiss Plaintiffs’ claims against Dr. Baker, 

the case should be stayed until Marusza’s workers compensation 

proceedings are complete. 

 Dr. Baker agrees with Accident Fund’s argument that, if the court does not 

dismiss any part of Plaintiffs’ complaint against Dr. Baker, this case should be 

stayed until Marusza’s worker’s compensation proceedings are complete, under 

either the doctrine of primary jurisdiction or the Burford5

 abstention doctrine. (See 

Accident Fund’s Motion to Dismiss, Doc #27, pp 33-38, Pg ID# 241-246). 

 “The doctrine of primary jurisdiction arises when a claim is properly 

cognizable in court but contains some issue within the special competence of an 

administrative agency.” Consol. Rail Corp. v. Grand Trunk W. R. Co., No. 13-

 

3

 The facts here thus differ from the case on which Plaintiffs rely, Dubuc v. ElMagrabi, 489 Mich. 869, 795 N.W.2d 593 (2011), which also involved an IME 

report containing allegedly false information. In that case, however, there were no 

allegations that the plaintiff’s employer and payer of benefits (Ford Motor 

Company) purposefully sent her to the defendant doctor expecting that he would 

make findings to prevent her from receiving benefits. 

4

 Notably, a party to a contract cannot tortiously interfere with the contract, it can 

only breach the contract. See Dzierwa v. Michigan Oil Co., 152 Mich. App. 281, 

287-88; 393 N.W.2d 610 (1986). 

5

Burford v. Sun Oil Co., 319 U.S. 315 (1943). 

2:15-cv-10815-AJT-APP Doc # 33 Filed 05/01/15 Pg 29 of 34 Pg ID 383
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2269, 2015 WL 1727306, at *5 (6th Cir. Apr. 15, 2015). “The purpose of the 

doctrine of primary jurisdiction is to obtain the benefit of the expertise and 

experience of the administrative agencies and the desirable uniformity which 

occurs when a specialized agency decides certain administrative questions.” Id. 

(internal quotations and citation omitted). Additionally, “a court must apply the 

doctrine of primary jurisdiction on a case-by-case basis, deferring to an 

administrative agency only when the reasons for the existence of the doctrine are 

present.” Id. (internal quotations and citation omitted). 

 Additionally, the Sixth Circuit has instructed that, under the Burford 

abstention doctrine, “[w]hen a case presents an unanswered question of state law 

bearing on policy problems of substantial public import whose importance 

transcends the case at hand and when conflicting state and federal rulings on the 

question would be disruptive of state efforts to establish a coherent policy with 

respect to a matter of substantial public concern, Burford says that a district court 

should stay its hand until the state courts have had an opportunity to weigh in on 

the matter.” Gray v. Bush, 628 F.3d 779, 784 (6th Cir. 2010) (internal citations 

omitted). “The Burford doctrine thus tells federal courts when to exercise 

discretion (by considering whether a federal ruling might wreak havoc on a 

sensitive yet indeterminate area of state policy) and how to exercise that discretion 

(by avoiding immediate resolution of the state law issue).” Id. (emphasis in 

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21

original). Under this abstention doctrine, a district court has the “option of staying 

the federal proceeding until the state court resolves the difficult question of state 

law bearing on policy problems of public import.” Id. at 785 (internal citations 

omitted). 

As noted in Accident Fund’s brief, a case from this district found a stay 

proper under both doctrines in similar circumstances. In Moon v. Harrison Piping 

Supply, 375 F. Supp. 2d 577 (E.D. Mich. 2005) aff'd in part, rev'd in part on other 

grounds and remanded, 465 F.3d 719 (6th Cir. 2006), the plaintiff employee 

brought an action against his employer, the worker’s compensation insurer, an 

adjuster, and physician, alleging a violation RICO and intentional infliction of 

emotional distress. 

 Under the primary jurisdiction doctrine, the court found that it had 

jurisdiction over the RICO claims, but that the adjudication of the plaintiff’s 

claims, like this case, “hinge, in part, upon whether Plaintiff is entitled to those 

[worker’s compensation] benefits in the first instance.” Moon, 375 F. Supp. 2d at 

586. Importantly, Michigan's Worker’s Disability Compensation Act, “a 

regulatory scheme of the Michigan legislature [,] commits the resolution of one's 

entitlement to workers' compensation benefits in the first instance to the special 

competence of the [Workers Disability Compensation Board].” Id. Accordingly, 

“[g]iven the complicated medical issues underlying Plaintiff's entitlement to 

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22

workers' compensation benefits, the WDCB, rather than the Court, possesses the 

necessary expertise and the specialized knowledge properly to resolve those 

underlying issues and, thus, the ultimate issue of Plaintiff's entitlement to benefits. 

Deferring to the WDCB's determination of a plaintiff's entitlement to workers' 

compensation benefits in cases such as this would promote uniformity in such 

determinations.” Id. at 586-87. The same result must follow here, where the 

WDCB has yet to rule on Marusza’s claim.6

 Likewise, the Moon court determined that the Burford abstention doctrine 

also applied because “an employee's entitlement to workers' compensation benefits 

bears upon policy problems of . . . substantial public concern.” Moon, 375 F. 

Supp. 2d at 589. Conversely, “this federal forum would have minimal interest in 

determining Plaintiff's entitlement to workers' compensation benefits.” Id. at 590. 

Further: 

The determination of Plaintiff's entitlement to workers' compensation 

benefits in this federal forum would likely frustrate or undermine 

Michigan's workers' compensation scheme . . . . That administrative 

scheme is comprehensive, setting forth the nature and amount of the 

particular benefits to which it affords entitlement, the scope of any 

such entitlement, and the administrative and judicial processes for 

resolving any disputes regarding that entitlement. . . . [T]he 

determination of Plaintiff's entitlement to workers' compensation 

 

6

 The court did note that “it is unclear whether the primary-jurisdiction doctrine 

properly applies in favor of a state administrative agency where the claim at issue 

arises under federal law and there is no competing federal forum,” but found in any 

event, that abstention under Burford was proper. Moon, 375 F. Supp. 2d at 587. 

2:15-cv-10815-AJT-APP Doc # 33 Filed 05/01/15 Pg 32 of 34 Pg ID 386
23

benefits hinges upon complex medical issues. Given the expertise and 

specialized knowledge necessary to resolve such underlying issues 

properly, the determination of Plaintiff's entitlement to workers' 

compensation benefits in this federal forum may result in an 

adjudication that would be contrary to that of the WDCB. 

Id., p 589. Likewise here, the determination whether Marusza is entitled to 

benefits hinges in part on a complex medical issue, that is, whether he has a 

traumatic brain injury. This determination should be and will be made by the 

WDCB and therefore, this court, if it does not does dismiss the claims against Dr. 

Baker in their entirety, should stay this action until such time as the worker’s 

compensation proceedings are complete. 

CONCLUSION 

 For these reasons, Defendant W. John Baker respectfully requests this 

Honorable Court grant his Motion to Dismiss under Fed. R. Civ. P 12(b)(6) on all 

counts against him and grant all such other relief to which he is entitled. 

By: /s/Michael D. Weaver 

 MICHAEL D. WEAVER (P43985) 

 Attorney for Defendant 

 Dr. W. John Baker 

 38505 Woodward Avenue, Suite 2000 

 Bloomfield Hills, MI 48304 

 (248) 901-4025 

mweaver@plunkettcooney.com

Date: May 1, 2015 

 

2:15-cv-10815-AJT-APP Doc # 33 Filed 05/01/15 Pg 33 of 34 Pg ID 387
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CERTIFICATE OF SERVICE 

 Michael D. Weaver, attorney with the law firm of PLUNKETT COONEY, 

being first duly sworn, deposes and says that on the 1st day of May 2015, he 

caused a copy of this document to be served upon all parties of record, and that 

such service was made electronically upon each counsel of record. 

 By: /s/Michael D. Weaver 

 MICHAEL D. WEAVER 

 mweaver@plunkettcooney.com

Open.23644.51083.15375288-1 

2:15-cv-10815-AJT-APP Doc # 33 Filed 05/01/15 Pg 34 of 34 Pg ID 388