Michigan Court of Appeals; Docket # 343196; Unpublished
Judges O’Brien, Beckering, and Letica; Per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Evidentiary Issues
SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals upheld a jury’s no-cause verdict returned in the plaintiff’s first-party action to recover no-fault PIP benefits and uninsured motorist benefits. The plaintiff, Steven Doering, argued that the jury would have reached a different verdict had the trial court not quashed his subpoena for the de benne esse deposition of the doctor who performed his IME in the related workers’ compensation case. The Court of Appeals agreed that the trial court erred in granting the IME doctor’s motion to quash Doering’s subpoena, but that that error did not necessitate a reversal of the jury’s verdict. The Court came to this conclusion after reviewing the subject IME and finding “no opinion that any of plaintiff’s injuries probably arose out of the [subject] car accident.”
Steven Doering was injured in a motor vehicle collision while in the course of his employment. Some time thereafter, he filed both a workers’ compensation lawsuit and a lawsuit against Home-Owners Insurance Company, asserting lost income from his separate self-employment and an uninsured motorist claim. In an attempt to prove that he did, in fact, sustain a bodily injury for purposes of the latter action, Doering issued a subpoena for the de bene esse deposition of Mary K. Kneiser, MD, the independent medical examiner retained by the workers’ compensation insurer in the former action. Dr. Kneiser objected to the subpoena, and argued that an expert may not be compelled to provide involuntary testimony pursuant to a subpoena. The trial court agreed and quashed the subpoena, and the jury ultimately returned a no-cause verdict against Doering, finding that he was not injured in the collision.
On appeal, the Court of Appeals noted that although expert witnesses typically cannot be compelled to testify, the trial court should not have granted her motion to quash the subpoena because she had “first-hand knowledge of facts relevant to the litigation.”
Dr. Kneiser did not examine plaintiff for purposes of the instant litigation, nor did the parties to the present litigation retain or consult her. Nevertheless, her first-hand knowledge of plaintiff’s condition on the date of her examination was related to this litigation in that it pertained to whether he suffered accidental bodily injuries in a car accident on August 14, 2015, and for which he sought PIP and uninsured motorist benefits. Thus, Dr. Kneiser’s factual observations and her opinions drawn therefrom were “relevant to the subject matter involved in the pending action.” MCR 2.302(B)(1). Accordingly, the trial court erred in granting her motion to quash the subpo ena and in issuing an order that prevented plaintiff from taking her de bene esse deposition.
Nonetheless, the Court of Appeals did not find it necessary to reverse the jury’s verdict, and rejected Doering’s assertion that, (1) “had the jury heard the testimony regarding Dr. Kneiser’s medical evaluation, there is a reasonable probability that it would have reached a different result,” and (2) Dr. Kneiser’s findings would have bolstered the credibility of Doering’s treating physicians’ testimonies regarding his injuries. The Court pointed out that Dr. Kneiser’s report contained “no opinion that any of [Doering’s] injuries probably arose out of the [subject] car accident,” and highlighted the “stark contrast between Dr. Kneiser’s impressions of potential injuries and modest recommendations and the testimony regarding plaintiff’s treatment.”
Plaintiff claims that the trial court denied him a fair trial by preventing him from presenting evidence that Dr. Kneiser observed his injury during her independent medical examination. However, with regard to injury, Dr. Kneiser’s report shows only plaintiff’s report of a cervical strain suffered during the work accident, a postural strain that neither plaintiff nor Dr. Kneiser specifically relate to the accident, and a potential but unconfirmed lower trunk brachial plexopathy that might be related to the work accident. Her impression of plaintiff’s other conditions was that they were not related to his work accident. In other words, Dr. Kneiser’s report contains no opinion that any of plaintiff’s injuries probably arose out of the August 14, 2015 car accident. In light of her findings, Dr. Kneiser opined that plaintiff’s reported pain could be addressed with postural exercises and a brief period of physical therapy, and plaintiff would not be expected to require permanent restrictions for any work accident related injury. From this, one might reasonably infer that if plaintiff did suffer a confirmed injury related to his work accident, it was neither serious nor permanent.
Plaintiff also contends that Dr. Kneiser’s findings would bolster the credibility of his treating physician’s testimony regarding his injuries. However, the stark contrast between Dr. Kneiser’s impressions of potential injuries and modest recommendations and the testimony regarding plaintiff’s treatment strongly suggests otherwise. Plaintiff testified that Dr. Clark had him report for 45-minute visits five days a week from October 2015 through March 2016. Dr. Clark acknowledged in his de bene esse deposition, which was read into the record at trial, that he charged plaintiff approximately $10,000 per month for his treatment, and that his office had charged $116,788 to plaintiff’s workers’ compensation insurance carrier. Despite acknowledging that plaintiff was reporting pain levels of 1, 2, and 3 out of 10, Dr. Clark opined that plaintiff might require treatments for the next 10 years. Dr. Kneiser’s report of her examination of plaintiff serves not to bolster the credibility of other testimony about plaintiff’s injuries, but to provide a contrast to the intensity of the medical treatment plaintiff began to receive once he engaged and followed the directions of his then-lawyer, and to appear to support Home Owner’s thesis that plaintiff’s treatment was “lawyer-driven.”
