UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

NANCY GUCWA 

and MARK MARUSZA, Case No. 2:15-cv-10815-AJT-APP

Plaintiffs, Hon. Arthur J. Tarnow

vs.

DR. JEFFREY LAWLEY,

DR. HARVEY AGER, 

DR. W. JOHN BAKER,

DR. BARRY RUBIN and

ACCIDENT FUND INSURANCE 

COMPANY OF AMERICA, 

Defendants. 

__________________________________________________________________

PLAINTIFFS’ RESPONSE TO DEFENDANT 

DR. W. JOHN BAKER’S MOTION TO DISMISS

CONCISE STATEMENT OF ISSUES PRESENTED

A. HAS NANCY GUCWA STATED A CLAIM UNDER RICO FOR INJURY

TO HER BUSINESS OR PROPERTY?

B. HAS NANCY GUCWA ALLEGED PREDICATE ACTS?

C. HAVE PLAINTIFFS ALLEGED THE MICHIGAN TORTS OF

INTERFERENCE WITH CONTRACT AND INTERFERENCE WITH

BUSINESS RELATIONSHIP?

D. SHOULD THIS CASE BE STAYED?

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CONTROLLING OR MOST APPROPRIATE AUTHORITIES

Allstate Insurance Company, et al, v Medical Evaluations, PC, et al,

USDC EDMI 13-cv-14682, dkt 37

Bell Atl. Corp. v Twombly, 550 US 544, 570 (2007)

Bio-Medical Applications v Central States, 656 F. 3d 277 (6 Cir 2011) th

Brown v Cassens Transport Co, 546 F 3d 347 (6 Cir 2008), cert th

denied ___ US___, 130 S. Ct. 795 (2009)

Brown v Cassens Transport Co, 675 F3. 3d 946, 968 (6th Cir 2012) 

Dubuc v El-Magrabi, et al, 489 Mich 869 (2011) 

Dubuc v El-Magrabi, et al, MI Court of Appeals, No. 287756 (Opinion 9/24/10)

Jackson v Sedgwick Claims Management Services, 731 F3d 556 

(6 Cir 2013), cert den 134 S Ct 2133 (2014) (“Jackson II”) th

Michaels Building Co. v Ameritrust Co, 848 F. 2d 674, (6 Cir. 1988) th

Nawas v State Farm, 4:13-cv-11158, doc. #31

State Farm Mut Auto v Physiomatrix, et al, USDC EDMI, 5:12-cv-11500, dkt 226

Schipani v Ford Motor Co, 102 Mich App 606 (1981) 

Trepel v Pontiac Osteopathic Hospital, 135 Mich App 361 (1984) 

Exhibits

1 - Draft of Second Amended Complaint

2 - Dubuc v El-Magrabi, et al, 489 Mich 869 (2011)

3 - Dubuc v El-Magrabi, et al, Michigan Court of Appeals, No. 287756 (Opinion

9/24/10)

i

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1

I. INTRODUCTION

On October 18, 2011, Mark Marusza was struck and injured by a motor vehicle

while in the course and scope of employment in Michigan. Accident Fund provided

worker’s compensation insurance to his employer, First Amended Complaint

(“FAC”), Dkt 2, ¶ 4. Accident Fund denied that he suffered a traumatic brain injury

(“TBI”) and refused to pay benefits for that injury. FAC, ¶¶ 4, 24. 

Dr. W. John Baker is a neuropsychologist. Dr. Harvey Ager is a psychiatrist.

The FAC alleges

14. THE SCHEME TO DEFRAUD OF DRS. W. JOHN BAKER and

HARVEY AGER. For at least the past 20 years and continuing now, Baker

and Ager 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 accidents, and or due to events at work, by writing fraudulent

forensic reports and giving fraudulent testimony in workers compensation, no

fault insurance and other types of cases. Their dishonest and deceptive

practices, such as those set forth in detail in the claim of Nancy Gucwa, infra,

were used by them in many other claims throughout the past 20 years.

***

25. At AF’s direction, Marusza submitted to examinations by Drs. Ager and

Baker. Drs. Ager and Baker found no accident-related TBI, and relying on

these reports, AF denied workers compensation benefits for the TBI, including

but not limited to the attendant care done by Gucwa.... [¶25 continues,

describing in detail the alleged fraud committed by Dr. Baker.]

The FAC alleges that Accident Fund cited Marusza to Dr. Baker in 2012 and

2014 (Dkt 2, ¶17 A, B, J) and cited at least two other claimants in 2009 and 2011

(¶17 N). Baker wrote at least 4 reports on these three claimants, and gave a

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Marusza sued Auto Owners Ins for no fault benefits for the TBI. 1

Auto Owners paid some benefits and has intervened in the pending

workers compensation case to recover the money it paid, because in

Michigan no fault insurance is secondary to workers compensation

insurance.

2

deposition in the Marusza no fault case, all of which allegedly contain fraudulent

statements. (¶17 K, M, N; ¶10 B (3)).1

Nancy Gucwa is not an injured person. She was not injured in the motor

vehicle accident which gave rise to the injuries to Mark Marusza. She provided

attendant care to Marusza. Id, ¶¶ 4, 24.

Plaintiffs incorporate here the arguments they present in their responses to the

motions to dismiss brought by Accident Fund and Drs. Lawley, Rubin and Ager. 

II. ARGUMENT

Standard of Review

Pertinent to this court’s resolution of the motions to dismiss brought by

Accident Fund and the defendant doctors is the Supreme Court’s holding that

RICO’s civil liability provisions should “be liberally construed to effectuate its

remedial purpose.... The statute’s ‘remedial purposes’ are nowhere more evident

than in the provision of a private action for those injured by racketeering activity.”

Sedima, S.P.R.L. v Imrex Co, 473 US 479, 105 S Ct 3275, 3286, 87 L Ed 2d 346

(1985). 

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Each count of this suit should survive each defendant’s rule 12(b)(6) motion

to dismiss because plaintiffs have plausibly pled all the material elements entitling

them to relief. Scheid v Fanny Farmer Candy Shops, Inc, 859 F2d 434 (6 Cir 1988). th

The standard requires not encyclopedic pleading but plausible pleading: a plaintiff

must allege “enough facts to state a claim that is plausible on its face.” Bell Atl.

Corp. v Twombly, 550 US 544, 570 (2007).

A. NANCY GUCWA HAS ALLEGED AN INJURY TO HER

“BUSINESS OR PROPERTY”

Dr. Baker argues that Jackson v Sedgwick Claims Management Services, 731

F3d 556 (6 Cir 2013), cert denied, 134 S.Ct. 2133 (2014) (“Jackson II”), requires th

dismissal of Gucwa’s RICO claim. Jackson II held that an injured person could not

bring a RICO claim because his claim was for his “personal injury” damages, and

such a claim was not an injury to “business or property” as required by RICO, 18

U.S.C. §1964(c). 

Jackson II does not require dismissal of Gucwa’s claim because it bars only a

claim brought by the injured person. Gucwa is not the injured person. She is a care

provider, suing for her property interest in her bill for services rendered. 

This court hastwice ruled in no fault auto insurance cases that a care provider’s

or insurer’s RICO claim is not barred by Jackson II because that case only bars a

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claim by an injured person, and insurers and care providers are not injured persons.

These two rulings held that insurers and care providers are suing for injury to their

“business or property,” not for “personal injury.” Similarly, Gucwa’s claim is not for

her personal injury but for damages to her business or property interest in her bill for

services rendered.

In State Farm Mutual Auto. Ins. Co v Physiomatrix, et al, USDC EDMI, 5:12-

cv-11500, dkt 226, Opinion and Order Denying Motions to Dismiss, this court, the

Hon. John O’Meara presiding, held that Jackson II, supra, did not apply, and denied

no-fault insurer State Farm’s motion to dismiss the clinics’ RICO claims.

The Clinics argue that they have notsuffered a personal injury for

which they are seeking compensation. Rather, they are seeking

compensation for medical services performed, or “lost income.” State

Farm rejoins that, if the court accepts the clinic’s argument, it would

essentially allow the clinics to recover no fault medical benefits under

RICO that their patients (State Farm’s insureds) could not. This may be

true, but State Farm has not cited any legal authority that such an

outcome is contrary to law. See Jackson, 731 F. 3d at 569-70 (“Long

before this case, courts recognized that the ‘business or property’

limitation in §1964(c) created a distinction between compensable and

non-compensable injuries that some might consider arbitrary.”).

Although no fault benefits are at issue, the nature of the Clinic’s

injury is different from the nature of the insureds’ injuries. The Clinics

have provided services for which they are being paid; this is more

properly characterized as a “business” rather than a “personal”

injury....The court finds that Jackson does not apply to bar the Clinics’

claims.”

Like the Clinics, Nancy Gucwa suffered injury to property - her claim for services -

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when that claim was allegedly fraudulently denied.

Similarly, in Allstate Insurance Company, et al, v Medical Evaluations, PC, et

al, USDC EDMI 13-cv-14682, Hon. Matthew Leitman, this court held that a party to

a no fault insurance dispute could invoke RICO despite Jackson II. The court

endorsed the reasoning in State Farm Mut. Auto. Ins. Co v Physiomatrix, et al. 

Dr. Baker seeks to expand the Jackson II decision to cover RICO claims

brought by a non-employee. Dr. Baker has provided no reason and no authority to

expand it.

B. NANCY GUCWA ALLEGED PREDICATE ACTS

Dr. Baker asserts:

The mailing of allegedly fraudulent IME reports does not constitute a

predicate act under RICO... (Brief 11)

This is astonishing. It is akin to saying, “theft is not a crime.” 

The mail fraud statute, 18 U.S.C. §1341, prohibits obtaining money by fraud,

and that is what Gucwa alleged: Baker participated in a scheme to defraud her via a

scheme which used the mails. This is classic mail fraud. 

Gucwa is as much a victim as the clinics in State Farm v Physiomatrix. The

court held the clinics properly alleged RICO violation; this court should hold the

same here.

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Dr. Baker asserts plaintiffs’ claims premised on mail and wire fraud fail

because RICO requires thatsomeone be “deceived by the alleged conduct.” Brief 16.

There is no such requirement. The Sixth Circuit in Brown et al v Cassens Transport,

et al, 546 F3d. 347, 351 and 356ff (2008) held that “reliance is not an element of a

civil RICO fraud claim.” No subsequent decision of the Sixth Circuit reversed this

holding, and it remains law within the circuit. 

Bridge v Phoenix Bond & Indemnity Co, 553 US 649, 128 S Ct 2131 (2008),

and Brown also made clear that if plaintiffs plausibly allege they were proximately

injured by a fraudulent scheme, they have pled proximate cause, regardless of

whether the scheme employed deception and reliance. Brown held:

Plaintiffs have sufficiently pleaded that the defendants’ fraud was

directly related to and was the proximate cause of their injuries as

required by 18 U.S.C. §1964(c) under Holmes [v Securities Investor

Protection Corp, 503 US 258] at 268, 112 S. Ct. 1311, and Anza [v Ideal

Steel Supply, 547 US 451 (2006)], 547 US at 456-61, 126 S. Ct. 1991.

Accepting the facts as recited in the complaint, the defendants’

fraudulent acts were a “substantial and foreseeable cause” of the injuries

alleged by the plaintiffs: the deprivation of their worker’s compensation

benefits and expenses for attorney fees and medical care. Trollinger v

Tyson Foods, Inc. 370 F 3d 602, 615 (6 Cir 2004).... th

Brown, id, 357. 

The allegations in this case are indistinguishable from those in Brown, for

purposes of determining whether plaintiffs have pled proximate cause; plaintiffs in

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First Amended Complaint, dkt 2, ¶¶ 9 (“Accident Fund cited their

2

[examiners’] reports as ground to deny payments for services...”); 13

K (Accident Fund “citing the reports by the foregoing persons as

grounds to deny or terminate benefits.”).

7

both cases alleged a workers compensation insurer/self-insurer conspired with

examiners to issue fraudulent reports which the insurer cited as grounds to deny

benefits before litigation began, and intended to use after litigation began to deceive

the workers compensation system. Here Gucwa alleged defendants conspired to

fraudulently deprive her of payment for services and benefits by means of fraudulent

reports. Because she made allegations like those in Brown, it is irrelevant “no one 2

was deceived by the alleged conduct.” 

Dr. Baker argues, 

....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 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.

The so-called “clarification” in Bridge is dictum. It was musing by the court after it

held first party reliance is not an element of RICO. The “clarification” was dictum

because it was “not necessary to the holding.” United States v Stevenson, 676 F3d

557, 562 (6 Cir 2012) . Also, the court’s musing is contrary to its holding that a th

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“person can be injured ‘by reason of’ a pattern of mail fraud even if he has not relied

on the representation.” Bridge, 128 S. Ct. 2131, 2139.

Dr. Baker discussed at length McGee v State Farm Mut. 08-CV-392 (ED NY

2009). Brief 14. McGee does not even discuss Bridge, supra, and is therefore

worthless as guidance, because Bridge resolved the reliance issue.

Moreover, the Supreme Court has held that a scheme to commit mail fraud

does not require misrepresentation, let alone reliance on a misrepresentation. In

Carpenter v United States, 484 U.S. 19, 108 S. Ct. 2875 (1987), the Supreme Court

held mail fraud included an employee’s misappropriation of his employer’s

confidential information for gain; the scheme involved dishonesty but no

misrepresentation.

Also, a mailing does not have to contain any fraudulent statements to constitute

a predicate act of mail fraud; it is sufficient if an innocent mailing is made in

furtherance of the scheme to defraud. United States v DeCastris, 798 F2d 261 (7 Cir

th

1989); United States v Vardell, 760 F2d 189, 191 (8 Cir 1985); United States v Reid,

th

533 F2d 1255 (DC Cir 1976).

Plaintiffs will be filing a motion for leave to file a Second Amended Complaint

(see draft, Exhibit 1), alleging defendants used fraudulent reports not only to deny

benefits to care providers and compensation claimants, but also to deceive the

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14. B. DEFENDANTS’ INTENT TO DECEIVE. 3

(1). Reports and Testimony Based on Reports. 

(a) Biased and Dishonest Reports. As part of the scheme to defraud,

Accident Fund hired the defendant doctors to examine allegedly injured

persons, to write dishonest, biased and otherwise fraudulent reports, and if

needed to give dishonest testimony based on the reports, all to deceive the

Workers’ Compensation Agency, its magistrates, and appellate bodies in the

Michigan workers compensation system. The doctors conducted such

examinations, wrote such reports and gave such testimony in claims and

9

Workers Compensation Agency, magistrates and appellate bodies. Plaintiffs will

allege in new ¶14 B that Accident Fund and its examiners used fraudulent reports to

deceive the Agency before litigation, and during litigation to deceive workers

compensation magistrates and appellate bodies. 

Before litigation was filed, Accident Fund intended to and did deceive the

Agency by mailing to it fraudulent Notices of Dispute (a form which an insurer must

file, stating the grounds for benefit denial). Accident Fund cited defendants’

fraudulent reports as grounds, and the Agency, deceived as to the true reason for

denial, took no action. 

After litigation began, Accident Fund mailed Notices of Intent to the Agency

announcing Accident Fund’s intention to submit into evidence at trial the examiners’

fraudulent reports. During litigation, Accident Fund would submit these reports into

evidence, to deceive a magistrate and appellate bodies.3

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cases involving workers compensation insurance, no fault insurance, third

party liability and disability insurance, with all defendants

(I) knowing the insurers might or would rely on the reports, in that the

insurers would cite the reports to a claimant and or to the Workers

Compensation Agency, as grounds to deny or terminate benefits

before litigation began, and 

(ii) intending to submit the reports into evidence at a hearing, to

deceive a trier of fact (in a workers compensation case, a magistrate;

in a civil case, a judge or jury) and appellate bodies or courts after

litigation began; the examiners knew and intended that the insurer

through its lawyer would present their reports and testimony to a trier

of fact or appellate body, and the examiners and insurer knew and

intended that the trier of fact, court or appellate court or body might

rely on the fraudulent, dishonest and biased reports or testimony to

deny benefits to a claimant. 

(b) Material Omissions. The examiners were under a duty not to omit

material facts from their reports, and to discuss in their reports all facts they

knew about which were material to whether a claimant had suffered or was

suffering the injury alleged. In their reports they frequently omitted

material facts and omitted to discuss material facts contrary to their

opinions, as alleged, for example in ¶ 26 B (in “his report of April 27, 2012,

and on information and belief in hundreds of reports in other cases

stretching over decades, Baker dishonestly failed to disclose that on some of

the tests in his neuropsychological assessment he did not use either the

scoring system and norms which the manufacturer/developer provided with

the test or a scoring system and norms for that test from a generally accepted

compendium of scoring systems and norms. Because Baker did not

disclose, a reader of his report would have no way of knowing he had not

used a standard scoring system and norms. For some tests, Baker also used

for decades scoring systems and or norms which were non-published and or

non-peer-reviewed, and did not disclose that fact; these acts were material,

misleading and deliberate omissions....”). See also ¶¶ 27 (material and

misleading omissions by Baker); 31 A, C (material omissions by Dr. Ager). 

The examiners made false statements in their reports. See, for example, ¶

17 I(4) (alleging Dr. Ager reported with extremely high frequency that the

10

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examinee had a “histrionic” and “dependent personality” as “a product of

childhood” and likely a “somataform” disorder coupled with “secondary

gain” behavior; this cookie-cutter pattern in his reports is evidence that he

committed systematic fraud); . The material omissions and false statements

may also have been intended by the examiners to mislead, and may have

mislead, the insurers which hired them, and magistrates and appellate bodies

in the Michigan workers compensation system, or triers of fact and appellate

bodies in no fault and other cases.

(c) Wilful Blindness. Accident Fund also committed wilful blindness by

failing to determine that the examiners were biased or dishonest despite

having reason to believe they may be biased or dishonest, and by failing to

vet the examiners for honesty before hiring them. The fraudulent reports of

defendant doctors concerning Marusza are identified in ¶17, Predicate Acts.

(2) Notice of Dispute. Accident Fund regularly used the fraudulent reports

to deceive the Worker’s Compensation Agency as to the true reasons for the

termination or denial of benefits, both before and after Marusza began

litigation. Before litigation, Accident Fund would file a Notice of Dispute,

form 107, as it did in the claim of Mark Marusza to dispute his benefits for

his TBI, low back, neck and shoulder injuries. A rule promulgated under

the WDCA required Accident Fund to file the Notice of Dispute and state

the grounds of the dispute “if the right of the injured ...to compensation is

disputed,” R 408.33, Rule 3(1). Accident Fund frequently stated in the

Notices of Dispute, as it did in the forms it filed with the Agency in the

claim of Marusza, that benefits were denied or terminated “based on an

independent medical examination by Dr. X.” In Marusza’s worker’s

compensation claim, X was Drs. Lawley, Ager, and Baker; for three Notices

of Dispute citing to the Agency reports from these examiners, see ¶17 S. 

Had Accident Fund stated the truth in the Notice of Dispute, “Benefits were

terminated based on a fraudulent report by Dr. X,” the Agency would likely

have punished Accident Fund. Because Accident Fund lied to the Agency

in its Notices of Dispute, the Agency relied on the reasons given and took

no action against Accident Fund.

(3) Notice of Intent. Rule 5(1) of the Worker’s Compensation Board of

11

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Magistrate General Rules, R418.55, Admission of records, reports,

memorandum and data compilation, provides “Not less than 42 days before

a hearing, the party intending to introduce the record, memorandum, report

of data compilation shall furnish copies to all parties and send a notice of

intent to the magistrate.” Pursuant to this rule, it was the frequent practice

of Accident Fund in workers compensation litigation to mail to the Agency,

starting in at least 2005 and continuing today, Notices of Intent, announcing

to the Board of Magistrates its intent to submit into evidence reports from

defendant examiners, intending to deceive the magistrate and appellate

bodies by means of the fraudulent reports. 

12

These pleadings should not be needed because Brown, id, held that

reliance/deception is not element of a RICO civil mail fraud claim; plaintiffs seek to

add the allegations just in case the Sixth Circuit or the Supreme Court holds such

allegations are needed.

C. PLAINTIFFS HAVE ALLEGED DR. BAKER COMMITTED THE

MICHIGAN TORTS OF INTERFERENCE WITH CONTRACT AND

INTERFERENCE WITH BUSINESS RELATIONSHIP/ EXPECTANCY

Existence of Contract and Business Relationship/Expectancy. 

A. Marusza. Dr. Baker asserts, “Plaintiffs do not clearly identify any contract

at issue or otherwise.” Brief 16-17. This not true because the FAC alleges

“Accident Fund ... provided workers’ compensation insurance to his employer.”

FAC, ¶ 4. Thus the FAC identified a “contract at issue,” Accident Fund’s workers

compensation contract of insurance with Marusza’s employer. 

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Marusza may sue Dr. Baker for tortious interference with insurance coverage

his employer bought, Dubuc v El-Magrabi, et al, 489 Mich 689 (2011). The

Michigan Supreme Court unanimously held that a Ford Motor Company employee

seeking benefits for his brain and orthopedic injuries, under a disability insurance

contract Ford bought from Unicare, may sue a medical examiner and a medical

examiner broker for tortious interference with Ford’s contract with Unicare. This is

a situation identical to that here, where Marusza’s employer bought workers

compensation insurance from Accident Fund, and Accident Fund cited examiner

reports as ground to deny benefits for Marusza’s TBI. 

The Supreme Court said, “When the complaint allegations are viewed in a light

most favorable to the plaintiff, she did allege an unjustified instigation of the breach

by the defendants.” The court reversed the Michigan Court of Appeals, No. 287756

(Opinion 9/24/10), and in effect adopted the Court of Appeals dissent in that case,

which stated plaintiff had pled tortious interference with contract. The Dubuc

Supreme Court order and the Court of Appeals dissent are Exhibits 2 and 3, for the

court’s convenience.

B. Gucwa. Gucwa’s claim is either for interference with contract or for

interference with an existing businessrelationship or an expectancy, Cedroni Assocs

v Tomblinson, Harburn Assocs, Architects & Planners, Inc, 492 Mich 40, 45 (2012);

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From draft Second Amended Complaint, exhibit 1: 4

22. In 2011 and 2012 Accident Fund paid Gucwa for her

attendant care services arising from Marusza’s severe

orthopedic injuries (cervical spine, six rib fractures,

comminuted clavicle fracture, rim rent tear of shoulder. In

2012 to the present, Mark Marusza hired Nancy Gucwa to

provide, and Gucwa provided, attendant care services to

Mark Marusza primarily as a result of the traumatic brain injury

(“TBI”) he suffered in the accident described in paragraph 10,

and to a lesser extent as a result of injuries and surgeries to the

neck and shoulders. Marusza’s treating doctors prescribed

attendant care. Nancy Gucwa submitted attendant care claims

to AF. AF in bad faith refused to pay them, as a result of which

14

Health Call v Atrium Home & Health Care, 268 Mich App 83 (2005); Trepel v

Pontiac Osteopathic Hospital, 135 Mich App 361 (1984); Schipani v Ford Motor Co,

102 Mich App 606 (1981). 

Accident Fund had been in a business relationship with Marusza and Gucwa

before it denied benefits for the TBI. In 2011 and 2012 Accident Fund paid Gucwa

for her attendant care services arising from Marusza’s severe orthopedic injuries

(cervical spine, six rib fractures, comminuted clavicle fracture, rim rent tear of

shoulder); also, from the time of the accident to the present, Accident Fund has paid

Marusza disability benefits. The First Amended Complaint clearly implies that an

agreement existed between Marusza and Gucwa for the provision by Gucwa of

attendant care services, and the proposed Second Amended Complaint will explicitly

state that such an agreement existed.4

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Gucwa suffered injury to her business or property. Under

MCL 418.847 a care provider is a “party in interest.” A

care provider may file its own litigation to collect its bill, by

filing a Form 104-B with the Michigan Worker’s

Compensation Agency, pursuant to MCL 418.847, and

Gucwa has done so.

15

Instigation of Breach. Dr. Baker next argues, “....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.” Brief 18. But the First Amended Complaint

does allege intentional interference with the insurance coverage and expectancy of

Gucwa and Marusza, and many other injured people, by Baker’s systematic

production of fraudulent reports so that Accident Fund and other insurers could cite

them as grounds to cut off or deny benefits: 

• ¶4 (“AF cited and relied on the reports of Drs. Harvey Ager, J. Barry Rubin

and W. John Baker in support of these denials”);

• ¶11A ( “He 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. He

wrote multiple such reports concerning the condition of Mark Marusza, whose

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16

brain injury gave rise to most of the attendant care services provided by

plaintiff Nancy Gucwa.”); 

• ¶¶14; 17 C and K; 

• ¶26 A: Baker “did not intend to write a report objectively and honestly

reporting on Marusza’s condition, but intended to write a biased report

favoring the Accident Fund, because his all or nearly all his income from his

neuropsychological practice came from writing reports for insurers or their

lawyers, and he wanted to keep themhappy, by giving them a report they could

cite as grounds to deny benefits”; 

• ¶51 (“‘Plaintiffs incorporate all allegations of this complaint”); and 

• ¶61 (“The fraudulent, biased and dishonest reports of Ager, Lawley, Rubin and

Baker proximately caused AF to deny to Gucwa payment for attendant care

services she provided, in an amount exceeding $150,000.00, and to deny to

Marusza payment for hospital bills, attendant care services, medical care and

medications, in an amount exceeding $100,000.00.”). 

The Michigan Supreme Court found similar allegations in Dubuc, supra,

alleged tortious interference by a medical examiner with a person’s receipt of benefits

under an insurance contract. Dubuc should prompt this court to reject Dr. Baker’s

arguments. 

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Dr. Baker asserts he could not have instigated the breach because plaintiff

alleges Accident Fund obtained a report from him 

for the specific purpose of denying benefits to Marusza. FN 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. FN

4. 

FN 3: The facts here thus differ from the case on which Plaintiffs rely,

Dubuc v El-Magrabi, 489 Mich 869, 795 NW2d 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) purposely sent her to the

defendant doctor expecting that he would make findings to prevent her

from receiving benefits.

FN 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 (1986). Brief 18-19. 

These arguments miss the essential point in a claim for tortious interference

with contract or business relationship. A plaintiff must allege that a person outside

the relationship instigated the breach, and plaintiffs here did just that. Plaintiffs

alleged Baker and Ager proximately caused the breach by providing essential

ammunition. Accident Fund did not act alone when it denied benefits for the TBI; it

relied on and cited Dr. Baker’s and Dr. Ager’s 2012 reports. 

If Drs. Baker and Ager can prove at trial that Accident Fund would have denied

benefits for the TBI regardless of the reports, then plaintiffs could not prove the

reports instigated the breach. But for purposes of a Rule 12(b)(6) motion, plaintiffs

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“Smith is the company on these facts.” (Emphasis by the court). 152

5

Mich App 287-288. Here, Dr. Baker is outside the corporation. That

alone distinguishes Dzierwa. 

18

have plausibly alleged the reports instigated the breach.

Plaintiffs’ claims are distinguishable from those in Dzierwa, on which Dr.

Baker relies. In Dzierwa, plaintiff did not allege that a party outside the contracting

party instigated a breach. Plaintiff alleged only that the chief officer and owner of

the contracting party - in effect, the corporation itself - tortiously instigated a breach.

The court held that the person who allegedly instigated the breach was the

corporation’s chief officer and owner of the contracting party; he was, for all

purposes, the corporation.

5

Existence of Breach. Dr. Baker argues, “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.” Brief 18. The argument is equivalent to Dr. El-Magrabi in Dubuc asserting

that Dubuc cannot show that Unicare improperly denied benefits until Dubuc sues

Unicare and the Michigan legal system determines she was entitled to benefits despite

the doctor’s fraudulent report. 

In Dubuc, as here, the tort was complete when the insurer denied benefits and

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19

cited the examiner’s report as grounds for doing so. The denial immediately caused

loss of benefits. Dubuc could sue immediately, without having to wait for the

Michigan legal system to decide the underlying insurance claim.

Dr. Baker has not cited any Michigan law to the contrary. He has not cited any

authority that the Michigan tort requires that the alleged victim must first sue the

insurer who cited the interferer’s report as grounds to deny benefits. Dubuc stands

for the contrary proposition and is controlling.

Also, Dr. Baker’s argument wrongly assumes a workers compensation insurer’s

liability for benefits requires litigation before an insurer must pay benefits, an

argument which turns the workers compensation scheme on its head. The Michigan

system was designed for prompt and voluntary payment after injury without

litigation. The system requires prompt and voluntary payment after injury, MCL

418.801(1) (“Compensation shall be paid promptly and directly to the person entitled

thereto and shall become due and payable on the fourteenth day after the employer

has notice or knowledge of the disability or death...”). Dr. Baker’s argument perverts

the WDCA, which has “as its primary goal the delivery of sustaining benefits to a

disabled employee as soon as possible after an injury occurs.” McAvoy v H. B.

Sherman Co, 401 Mich 419, 437, 258 NW2d 414 (1977). McAvoy also condemned

delay in payment of benefits due to employer denials and appeals in legitimate claims,

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20

which work a “profound injustice” on injured workers. Id at 438. A fraudulent report

which prompts denial of benefits corrupts the system. 

Summary of Argument. Both Marusza and Gucwa have properly alleged

tortious interference. As the dissent in Dubuc, supra, stated:

The elements of tortious interference with contract are: “(1) a contract, (2) a

breach, and (3) instigation of the breach without justification by the

defendant.” Wood v Herndon, 186 Mich App 495, 499 (1990) (quotations and

citations omitted). In order to prove such a claim, plaintiff must show “the

intentional doing of a per so wrongful act or the doing of a lawful with malice

and unjustified in law for the purpose of invading the contractual rights or

business relationship of another.” Id. Certainly, knowingly making false

statements to a contracting party about the other contracting party, where the

statements bear directly on the contract, is sufficient to show malice, or at least

a lack of justification.

This statement is a template which fits neatly here. Marusza, like Dubuc, was the

beneficiary of an insurance contract his employer purchased. Marusza, like Dubuc,

asserts a medical examiner lied in his report and as a result the insurer cited the report

as ground to deny benefits. Likewise, Gucwa has a claim for interference with

contract, business relationship or expectancy.

D. THIS COURT SHOULD RETAIN JURISDICTION 

Dr. Baker argues that “if this court dismisses the RICO claims against Dr.

Baker, it should decline to exercise jurisdiction over this state law claim” of tortious

interference, Brief 16. Dr. Baker points out this court has said, “Residual jurisdiction

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21

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, 729 (6 Cir 2006), th

Brief 16. 

Moon’s advice fits here precisely. The interests of judicial economy and the

avoidance of multiplicity of litigation warrant this court retaining jurisdiction over

the tort claim even if it dismisses the RICO claims. If the court dismisses the RICO

claims, the Medicare Secondary Payer Act (“MSPA”) claim remains, and that claim

overlaps the tort claims, as both involve Accident Fund’s liability for Marusza’s

alleged TBI, which in turn involves the issue of whether Marusza actually suffered

from a TBI, and resolution of that issue involves whether examiners Baker, Ager and

Rubin produced dishonest reports concerning Marusza’s alleged TBI. These issues

are common to both the tort and MSPA claims and are central to both claims.

E. THIS CASE SHOULD NOT BE STAYED UNDER EITHER THE

PRIMARY JURISDICTION OR BURFORD ABSTENTION DOCTRINE

Dr. Baker asks this court to stay this case until final conclusion of the worker’s

compensation case. This case should not be stayed for any one of several reasons.

First, the Sixth Circuit and this court have permitted MSPA claims to proceed

against insurers even though there has been no determination of the underlying state

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Accident Fund and Dr. Baker cite Moon v Harrison Piping Supply, 6

375 F. Supp. 2d 577 (ED MI 2005), aff’d in part, rev’d in part on

other grounds and remanded, 465 F 3d 719 (6 Cir 2006), as authority th

for stay. It is not, because: (1) Brown v Cassens Transport, supra,

effectively overruled the Moon holding concerning stay; (2) Moon

involved a scheme which alleged a “single objective” of depriving

one man of his benefits, while plaintiffs here allege a scheme

22

claims against the insurers. Bio-Medical Applications v Central States, 656 F. 3d

277 (6 Cir 2011), Michigan Spine & Brain Surgeons, PLLC, v State Farm Mut Auto th

Ins Co, 758 F 3d 787 (6 Cir 2014), Nawas v State Farm, 4:13-cv-11158, doc. #31.

th

Marusza’s MSPA claim cannot be stayed under this authority. 

Second, because the MSPA claim must proceed, it would be senseless to stay

the RICO claim.

Third, there is no reason to adopt one rule for MSPA claims and another for

RICO claims, where both involve underlying state claims against insurers.

Fourth, Brown v Cassens Transport, 675 F.3d 946, 955-957 (6 Cir 2012)

th

rejected defendants’ request for stay under the Burford abstention doctrine, and their

request forstay under the filed-rate doctrine (concerning whether litigation should be

stayed pending the outcome of an underlying claim pending before a state agency).

Brown was dismissed by stipulation following Jackson II, but because Brown’s

rejection of a stay was not overruled by Jackson II, that rejection remains controlling

precedent in this circuit, and requires denial of Dr. Baker’s request for stay.6

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involving many victims, and a scheme which continues right now and

into the future, so that this court should exercise its right to get to the

bottom of this alleged scheme; and (3) this case involves an MSPA

claim, which cannot be stayed.

23

Fifth, Jackson I gave persuasive reasons not to stay case, and those reasons

remain persuasive even though Jackson I was vacated.

Sixth, final determination of the worker’s compensation case could easily take

eight to ten years due to the complexity of that case, the fact that the trial now set for

August 27 could be spread over half a year (rarely do magistrates hear complex cases

on consecutive days), the existence of three appeal layers (Appellate Commission,

Court of Appeals, Supreme Court), and the frequent occurrence in Michigan workers’

compensation practice of remands among those layers and the magistrate, followed

by appeals from remands. 

For any one of these reasons, this case should not be stayed.

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RELIEF REQUESTED

Plaintiffs request this court deny Dr. Baker’s motions.

Respectfully submitted,

MARSHALL LASSER, P.C.

/s/ Marshall Lasser 

MARSHALL LASSER (P25573)

Attorney for Plaintiffs

P.O. Box 2579 

Southfield, MI 48037

(248) 647-7722

mlasserlaw@aol.com

Dated: June 12, 2015 

CERTIFICATE OF SERVICE

I hereby certify that on June 12, 2015, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF systemwhich will send notification of such

filing to all counsel of record.

/s/ Marshall Lasser 

Marshall Lasser (P25573)

MARSHALL LASSER, P.C.

Attorney for Plaintiffs 

P.O. Box 2579

Southfield, MI 48037

(248) 647-7722

mlasserlaw@aol.com

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