Michigan Court of Appeals; Docket # 341599; Unpublished
Judges O’Brien, Jansen, and Ronayne Krause; per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010—present) [§3135(7)]
Causation Issues [§3135]
TOPICAL INDEXING:
Evidentiary Issues
SUMMARY:
In this unpublished per curiam opinion, the Court of Appeals held 2-1 (with Judge Krause dissenting) that summary disposition was properly granted for defendant Michael Angelo Canfield (Canfield) because: (1) Plaintiff Thelma Peeples (Peeples) failed to create a genuine issue of material fact as to whether she suffered an objectively manifested impairment; and (2) because it was within the trial court’s discretion to refuse to consider an affidavit by Peeples’ treating physician that was not initially offered in response to Canfield’s motion for summary disposition.
Following the accident, Plaintiff Peeples complained of pain in her neck, back, right arm, shoulder, and jaw, but had an extensive history of back pain and migraines. Then, more than 3½ years after the accident, Peeples was diagnosed with herniated discs in her back, which she testified prevented her from engaging in activities she partook in before the accident. An independent medical examination, however, asserted that Peeples’s injuries should have required a maximum of three to four months of physical therapy. Canfield moved for summary disposition after discovery, which Peeples failed to contest with medical evidence, and which the trial court granted. Peeples filed a motion for reconsideration, “asserting for the first time that defendant failed to support his motion for summary disposition with admissible evidence,” and “presented, again for the first time, an affidavit from Dr. Leon Morris, which stated that plaintiff ‘sustained objectively manifested injuries’ from the accident . . .” The trial court rejected these arguments and denied Peeples’s motion.
The Court of Appeals affirmed the trial court’s grant of summary disposition for Canfield, because “the evidence that plaintiff relied on either fails to show an objectively manifested impairment or fails to demonstrate causation.” The gap in time between Peeples’s injury diagnoses and the collision suggested to the Court that her injuries may not have been caused by the collision. The Court reasoned:
The pain-management specialists’ reports documented that plaintiff felt constant pain in her neck, back, and right shoulder. An assessment of plaintiff’s condition diagnosed that plaintiff felt back pain, neck pain, cervical radicular pain, and myofascial muscle pain. The reports do not necessarily describe a physical cause of plaintiff’s pain that was directly attributable to the accident. The reports began around nine months after the accident. Because of plaintiff’s history of back pain, that delay indicates that there may be another reason for plaintiff’s symptoms, especially in light of the independent medical report which documented that plaintiff’s injuries from the accident should not have required more than three or four months of physical therapy treatment. Those reports do not document that plaintiff’s pain has a “physical basis” that is explicitly connected to the accident. McCormick, 487 Mich at 197-198. While plaintiff may experience pain which impairs certain body functions, that pain does not, by itself, establish an objectively manifested impairment, especially in the absence of a concrete medical diagnosis or evidence tying any of plaintiff’s injuries to the accident. Id. As for plaintiff’s jaw pain, although the letter from Dr. Kosinski documented the pain, it did not describe a medical test performed on plaintiff or an objective diagnosis for plaintiff’s pain. Thus, that letter also fails to demonstrate an objective impairment.
The only evidence that plaintiff presented that could have established an objectively manifested impairment was the orthopedic report that plaintiff’s C3 and C4 vertebrae were herniated. Yet that report was not prepared until over 3½ years after the accident and does not establish that the impairment was due to the accident. Plaintiff merely asserts that those herniated vertebrae were the result of the accident, but does not provide any evidence in support of that contention. In light of the delay between the accident and the diagnosis, as well as plaintiff’s long history of back problems, no reasonable juror could conclude that plaintiff established a sequence of cause and effect showing that those herniated discs were the result of the accident. See Patrick, 322 Mich App at 617. That the herniated discs were not caused by the accident is supported by the independent medical report stating that plaintiff’s injuries after the accident should not have required more than three or four months of physical therapy. Thus, because plaintiff either failed to establish an objective impairment or failed to demonstrate causation, she failed to establish a genuine issue of material fact whether she suffered an objectively manifested impairment as a result of the accident, and the trial court correctly granted defendant’s motion for summary disposition.
The Court rejected Peeples’s alternative contentions that the medical reports Canfield relied on in his motion for summary disposition were inadmissible hearsay and that the Court abused its discretion by denying her motion for reconsideration. As to the admissibility of the medical reports in support of Canfield’s motion for summary disposition, the Court found that Peeples’s did not demonstrate any prejudice resulting from those reports being considered. And as to the trial court’s denial of Peeple’s motion for reconsideration, the Court held that it is within the trial court’s discretion to “decline to consider evidence that could have been presented when defendant’s motion for summary disposition was initially decided.”
Justice Ronayne Krause, dissenting, argued that causation was not necessarily at issue for purposes of summary disposition and that the only question before the Court “is whether there is a genuine question of fact that plaintiff’s undisputed impairment was ‘objectively manifested’ and ‘affect[ed plaintiff’s] general ability to lead [her] normal life.” Justice Ronayne Krause contends that such a question does in fact exist.
