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Hahn v Vanduker, et al (COA – UNP 4/15/2021; RB #4252)

Michigan Court of Appeals; Docket # 349427; Unpublished
Judges Beckering, Fort Hood, and Riordan; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion


STATUTORY INDEXING:
Not Applicable

TOPICAL INDEXING:
Case Evaluation – Accept/Reject in PIP Cases
Discovery Sanctions in First-Party Cases
Evidentiary Issues


SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the judgment entered in Plaintiff Kathy Hahn’s first-party action against Defendant State Farm Mutual Automobile Insurance Company (“State Farm”), the trial court’s denial of Hahn’s motion for a judgment notwithstanding the verdict (JNOV), and the trial court’s award of case evaluation sanctions to State Farm.  The Court of Appeals issued a lengthy opinion in which it rejected a variety of arguments raised by Hahn regarding evidentiary issues and trial court rulings, which will be discussed in turn below.

Kathy Hahn was injured in a car crash after she was rear-ended by an intoxicated driver.  She declined ambulance transportation to the hospital at the scene of the crash, but checked into the emergency department later that day complaining of concussion symptoms, and over the course of the following three years, she received treatment for head, neck, and back injuries from a variety of treaters which she claimed arose out of the crash.  State Farm eventually stopped paying for her allegedly accident-related treatment, arguing that her injuries had resolved by February of 2019.  State Farm did, however, tender partial payment to Hahn for services provided by two different treaters, but her treaters rejected those payments.  The case proceeded to trial, and ultimately, the jury returned a verdict which directed Hahn to accept the partial payments and also awarded her an additional $600 to add to one of the payments.  Hahn then moved for JNOV, which the trial court denied, instead entering the jury’s verdict and awarding State Farm case evaluation sanctions against Hahn in the amount of $99,523.35.

On appeal, Hahn first argued that the trial court erred in granting State Farm’s motion in limine to preclude her from presenting evidence of medical expenses that she did not disclose during discovery.  State Farm served a request for production of all records relating to any claims made by Hahn as a result of the subject crash which Hahn did not comply with, prompting State Farm to file its motion, three months after the close of discovery, to preclude Plaintiff from introducing invoices from five different providers that were not disclosed prior to the discovery deadline.  The trial court granted State Farm’s motion after Hahn failed to respond to it, and the Court of Appeals held that it did not err in doing so. Specifically, the Court stated:

“Not only did plaintiff fail to respond to State Farm’s motion in limine in the trial court, but her argument on appeal fails to address the discovery issue that was the basis for State Farm’s motion and the trial court’s decision. Instead, plaintiff merely asserts that State Farm improperly tried to improve its position at trial by issuing partial payments that plaintiff’s providers rejected. This argument has no relevancy to State Farm’s motion in limine or the trial court’s resulting order. Plaintiff’s failure to address the basis for State Farm’s motion and the trial court’s decision is alone fatal to her argument on appeal. Derderian v Genesys Health Care Sys, 263 Mich App 364, 381; 689 NW2d 145 (2004) (“When an appellant fails to dispute the basis of the trial court’s ruling, this Court need not even consider granting plaintiffs the relief they seek.”) (cleaned up). Regardless, plaintiff has not demonstrated that the trial court erred. The trial court’s order is consistent with the court rules governing a party’s duty to seasonably supplement prior discovery responses, MCR 2.302(E)(1)(b)(ii), and the trial court’s authority to sanction that party by “refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the party from introducing designated matters into evidence,” MCR 2.313(B)(2)(b).

To the extent that plaintiff advances arguments on appeal for imposing a different or lesser sanction, because plaintiff never responded to State Farm’s motion, and thus failed to present these arguments to the trial court, we are unable to conclude that the trial court’s decision, which was authorized by the court rules, constituted an abuse of discretion.”

Hahn next argued that the trial court erred by denying her motion to exclude the testimony of a neuropsychologist who conducted an independent medical examination of her and testified as a witness for State Farm.  Hahn claimed that the neuropsychologist, Dr. Lisa Metler, did not timely produce the raw data from her testing until the day of one of Hahn’s treating physician’s deposition.  The trial court denied Hahn’s motion, ruling that any delay by Dr. Metler in producing her raw data did not prejudice plaintiff, and the Court of Appeals agreed. Specifically, the Court stated:

“In support of her argument that Dr. Metler’s testimony should have been excluded or restricted, plaintiff relies on authority discussing a party’s destruction or loss of material evidence. In this case, however, plaintiff’s motion did not allege that State Farm destroyed, lost, or failed to preserve Dr. Metler’s raw data. Her motion arose from a delay in producing the raw data. The record discloses that the delay resulted from plaintiff’s failure to serve a subpoena for the information on the third-party agency that provided Dr. Metler to State Farm. With State Farm’s assistance, plaintiff was provided with Dr. Metler’s raw data on the morning of Dr. Inwald’s deposition. Thus, this issue does not involve evidence that was lost or destroyed. Moreover, plaintiff fails to cite any instance in which Dr. Metler gave testimony that was unfairly prejudicial to plaintiff due to the delayed production, and plaintiff acknowledged that Dr. Inwald stated that the data would not change his opinion about what he had decided. Under these circumstances, the trial court did not abuse its discretion by denying plaintiff’s motion to exclude or restrict Dr. Metler’s testimony. Further, because the data was provided to plaintiff, she was not entitled to an adverse-inference instruction. Accordingly, plaintiff is not entitled to relief with respect to this issue.”

Hahn next argued that the trial court improperly “allowed” State Farm to withhold thousands of pages of its claim file until the day before trial.  Hahn’s counsel requested the updated claim file several weeks before trial, but State Farm did not provide until the afternoon before the first day of trial.  The trial court did not impose any discovery sanctions because Hahn did not raise the issue “in an appropriate motion for trial,” and the Court of Appeals held that the trial court did not abuse its discretion by not imposing a sanction because (1) Plaintiff failed to file an appropriate motion before trial and (2) because Plaintiff failed to demonstrate how she was demonstrated by State Farm’s delay. Specifically, the Court stated:

“At the time relevant to this case, MCR 2.313(B)(2) provided that “[i]f a party . . . fails to obey an order to provide or permit discovery, . . . the court . . . may order such sanctions as are just . . . .” In this case, the trial court denied plaintiff’s request for a blanket exclusion of all evidence from the belatedly disclosed portion of the claim file. It also denied plaintiff’s request for additional time to review the newly disclosed documents. As the trial court observed, plaintiff was aware well before trial that she did not have an updated copy of the claim file, but she never filed an appropriate motion before trial, and the updated file was ultimately provided to plaintiff. Notably, plaintiff did not object to any evidence at trial on the ground that it was belatedly disclosed or claim unfair surprise. Similarly, on appeal, plaintiff fails to mention any instance in which she was prejudiced at trial by the delayed disclosure. She does not identify any information in the updated claim file that affected her presentation of her case-in-chief or her response to any defense theory. Under these circumstances, the trial court did not abuse its discretion by failing to impose a sanction for the delayed disclosure of the updated claim file.”

Hahn next argued that the trial court erred in granting State Farm’s motion to preclude Hahn from introducing evidence of expenses she had incurred but had assigned to one of her treatment providers.  The Court of Appeals held that Hahn surrendered her right to pursue the assigned claims at trial, and the trial court therefore did not err in ordering that she be precluded from presenting evidence of those expenses. Specifically, the Court stated:

“It is undisputed that plaintiff assigned to Synergy the portion of her claims for services provided by Synergy. Relying on that assignment, Synergy brought a separate action against State Farm for recovery of benefits for its services to plaintiff. When an assignment occurs, the provider, as assignee, “stands in the position of the assignor, possessing the same rights and being subject to the same defenses.” Burkhardt v Bailey, 260 Mich App 636, 653; 680 NW2d 453 (2004). Conversely, the assignor surrenders the right to pursue a claim in litigation. See id. Plaintiff therefore relinquished her right to recover expenses related to Synergy’s provision of treatment. Accordingly, the trial court did not err by precluding plaintiff from presenting evidence of these expenses.”

Hahn next argued that statements made by State Farm’s attorney during opening statements improperly appealed to the jury’s sympathy, and therefore denied her a fair trial.  Hahn took exception with the following comment, specifically:

“However, it – it’s important to consider what is actually fair and just. Put yourselves in the shoes of the policyholders, or even the claim specialists such as – as Julie at State Farm, and ask yourself what you would do in these circumstances as you’re investigating a claim such as this. I suggest that you would have come to the same conclusions.”

The Court of Appeals held that this was not an improper appeal to the jury’s sympathy, and that, “in context, counsel was asking the jury to evaluate plaintiff’s claims from the adjuster’s perspective,” which is neither inherently inflammatory nor involved “a prejudicial theme that was repeated throughout trial.” Specifically, the Court stated:

“In the instant case, counsel’s request that the jurors place themselves in the shoes of the adjusters was not an improper appeal to sympathy. In context, counsel was asking the jury to evaluate plaintiff’s claims from the adjuster’s perspective. Counsel was reinforcing that a no-fault insurer cannot simply approve every payment submitted by an injured insured without verifying the insured’s entitlement to the benefit. The reference to policyholders, in context, advised jurors not to think of insurance benefits as free money from an impersonal company with no cost to persons. To the extent that the remark could be considered improper, it involved an isolated comment and any perceived prejudice could have been cured by a timely objection. Because the statement was not inherently inflammatory and it did not involve a prejudicial theme that was repeated throughout trial, it did not have the potential to deprive plaintiff of a fair trial. Accordingly, plaintiff is not entitled to relief with respect to this unpreserved issue. Badalamenti, 237 Mich App at 290.”

Hahn next argued that it was improper for the trial court to allow State Farm to argue that it had paid two of the bills at issue—the aforementioned bills that it paid only partially—when Hahn’s providers had rejected those payments as not made in full.  The Court of Appeals held that the State Farm never asserted that the bills were paid, however, and that State Farm therefore did not mislead the jury into thinking otherwise.  Moreover, the Court found that Hahn failed to “offer any citations to the record where State Farm allegedly made these misleading statements.” The Court stated:

“Finally, State Farm did not make misleading statements in its closing argument. The parties and the trial court addressed how this issue could be argued in closing. Plaintiff’s counsel indicated that he would not object if State Farm argued that ‘they attempted to pay the bills,’ but argued that it would be misleading if State Farm argued, ‘ ‘We paid these bills.’ ’ State Farm’s counsel stated that if the trial court instructed her that she was ‘not allowed to say those were paid, I won’t say it.’ The trial court allowed her to say, ‘they attempted to pay them at a reasonable rate.’ In closing argument, plaintiff’s counsel stated, ‘State Farm’s going to tell you they attempted . . . to make a payment,’ and that State Farm ‘attempted to pay $6,000.00 on a $13,985.00 bill.’ In her own closing argument, State Farm’s counsel referred to Higley’s testimony that she ‘attempted to pay those bills,’ which was consistent with the trial court’s ruling.”

Hahn next argued that the trial court erred by denying her motion to exclude a note from her medical records which indicated that, one month prior to the crash, Hahn was experiencing severe neck pain radiating into her back.  Hahn challenged the note on grounds of authentication, hearsay, and relevancy, and as to authentication, the Court held that there was sufficient indicia of authenticity to allow a reasonable juror to determine that the record contained accurate information regarding Hahn’s condition. Specifically, the Court stated:

State Farm claimed that the note represented a message submitted by plaintiff describing her medical condition on September 14, 2016, which was approximately a month before her automobile accident. The message itself is dated September 14, 2016, which supports a finding that it was written on that date. Although plaintiff argues that there is no means of determining who left the message, plaintiff’s name is listed as the author of the message, and the message also refers to Dr. Montgomery as the author’s doctor, and Dr. Montgomery was in fact plaintiff’s doctor. Further, Catherine Hadley, who works for the medical records department for Michigan Orthopedic Surgeons, of whom Dr. Montgomery is a member, testified that the message was entered via plaintiff’s password-protected patient-portal, which placed it in plaintiff’s medical records. Plaintiff denied understanding how the portal worked, but she acknowledged that she had used the portal at least once or twice, and understood that it was a password-protected communication system. This evidence was sufficient to allow a reasonable juror to conclude that the message was what State Farm claimed it to be, namely, a message that plaintiff submitted through the patient-portal system on September 14, 2016, describing her medical condition on that date. Accordingly, the trial court did not abuse its discretion by finding that the message had been sufficiently authenticated.”

As to whether the record constituted hearsay, the Court of Appeals held that the relevant portions of the record were statements made by Hahn, herself.  Therefore, the statements were offered by a party-opponent, and therefore not hearsay.  Furthermore, the statements fell within the hearsay exception of statements made for purposes of medical treatment. Specifically, the Court stated:

“As noted, State Farm introduced evidence that the disputed message was written by plaintiff, who submitted it through her medical provider’s patient-portal, which placed it in her medical records. As a message authored by plaintiff, a party-opponent, the message was not hearsay under MRE 801(d)(2). State Farm further argues that the message’s inclusion in plaintiff’s medical records does not render it inadmissible hearsay because the records qualify for admission under the hearsay exceptions for statements made for purposes of medical treatment, MRE 803(4), and statements in records of regularly conducted activity, MRE 803(6). We agree that these two exceptions were both applicable. The message was sent to plaintiff’s healthcare provider, describes various physical ailments, and asks whether anything can be done for the ailments. Thus, the message qualifies as a statement for the purpose of obtaining medical treatment. In addition, Hadley testified that patient information entered into the patient-portal is kept as part of the practice’s patient records. Accordingly, the trial court did not err by rejecting plaintiff’s argument that the message was inadmissible hearsay.”

As to relevancy, the Court held that the statements in question were directly relevant to State Farm’s position in the case.  State Farm was contesting “the extent and duration of plaintiff’s injuries and the causal connection between the automobile collision and the injuries she claimed,” and therefore “evidence that plaintiff complained of ‘severe neck pain’ approximately a month before the accident was relevant to the issue whether her continued treatment for neck pain was causally related to the motor vehicle accident.” The Court stated:

“Relevant evidence ‘may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’ MRE 403. In applying MRE 403, “unfair prejudice” does not mean evidence that is ‘damaging,’ but rather evidence that is unfairly prejudicial, such as when there exists a danger that marginally probative evidence will be given undue or preemptive weight by the jury. Lewis v LeGrow, 258 Mich App 175, 199; 670 NW2d 675 (2003). Plaintiff argues that the message’s probative value was negligible because the authorship of the message was unknown and there was no evidence explaining why it was referenced in Dr. Surapaneni’s records on November 2, 2016. As explained, however, State Farm introduced evidence to support a finding that plaintiff authored the message, and Hadley explained how the message was entered through the patient-portal, becoming a part of plaintiff’s medical records. Plaintiff’s denial that she wrote the message created an issue of fact for the jury to resolve. Otherwise, the message was highly relevant to a contested issue at trial, that being whether plaintiff’s neck pain was causally related to the October 2016 accident. The probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.”

Hahn next argued that the trial court erred in not granting her motion for judgment notwithstanding the verdict, as she claimed that the jury’s verdict was inconsistent with the trial court’s previous order precluding Kahn from claiming reimbursement for expenses incurred after the close of discovery.  Kahn also argued that the award “conflicts with the jury’s finding that payments were not overdue because the $5,495 payment included interest.”  Lastly, Kahn argued that the jury’s failure to award her mileage expenses was inconsistent with its “finding that she incurred expenses that arose from the automobile accident.”  The Court of Appeals found each of these arguments unavailing, providing:

“Plaintiff argues that the jury’s verdict requiring acceptance of State Farm’s $5,495 check to Mendelson Kornblum is inconsistent with the trial court’s February 14, 2019 order precluding plaintiff from claiming reimbursement of expenses incurred after October 5, 2018, given that the $5,495 check was issued as payment for services after October 5, 2018. Plaintiff also argues that this award conflicts with the jury’s finding that payments were not overdue because the $5,495 payment included interest. However, ‘money is fungible.’ Michigan Soft Drink Ass’n v Dep’t of Treasury, 206 Mich App 392, 405-406; 522 NW2d 643 (1994), quoting   Maine Beer & Wine Wholesalers Ass’n v Maine, 619 A2d 94, 98 (Me, 1993), quoting United States v Sperry Corp, 493 US 52, 62 n 9; 110 S Ct 387; 107 L Ed 2d 290 (1989). Although the amount of the specific check corresponded to a bill issued for services rendered after the cutoff date, it paid a portion of expenses plaintiff incurred for treatment with Mendelson Kornblum in the time period following State Farm’s denial of benefits. The verdict can therefore be reconciled with the evidence. To the extent that the jury’s finding is in conflict with the February 14, 2019 order, the error inured to plaintiff’s benefit because she received compensation for expenses not allowed. But this error would not justify JNOV with respect to other items for which plaintiff sought recovery and the jury declined to award any damages because there were issues of fact concerning the nature, extent, and duration of plaintiff’s injuries, and whether all of her injuries were causally related to the automobile accident. The jury’s decision to award plaintiff only a portion of her claimed expenses is not inconsistent with the evidence.”

Hahn lastly argued that the trial court erred in imposing case evaluation sanctions against her, arguing first that State Farm failed to comply with MCR2.625(F)(2) because it did not “present to the clerk (a) a bill of costs . . . , (b) a copy of the bill of costs for each other party, and (c) a list of the names and addresses of the attorneys . . . .”  The Court of Appeals held that this subrule only applies “[w]hen costs are to be taxed by the clerk,” and in this case, “State Farm did not seek costs to be taxed by the clerk.”

Hahn further argued that an imposition of case evaluation sanctions was not in the interest of justice, but the Court noted that the trial court did not have discretion to refuse to award case evaluation sanctions.  The operative fact was that the award was more favorable to plaintiff than the verdict, thereby requiring that such sanctions be ordered.

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