Michigan Court of Appeals; Docket # 345253; Unpublished
Judges Riordan, Jansen, and Stephens; per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Causation Issues [§3135]
TOPICAL INDEXING:
Evidentiary Issues
SUMMARY:
In this appeal of a trial court’s Order Granting No Cause of Action following a jury verdict of no cause of action, the Court of Appeals determined that the defense counsel did not engage in misconduct and deny the plaintiff a fair trial by arguing that the plaintiff’s medical treatment was attorney driven. The Court found there to be a sufficient basis other than speculation “for inquiry into this relevant area,” specifically the extensive history between the plaintiff’s doctor and the plaintiff’s counsel. Secondly, the Court of Appeals determined that the defendants’ biomechanical expert’s testimony regarding the lack of a causal relationship between the subject motor vehicle accident and the plaintiff’s injuries was admissible, despite the fact he did not possess a medical degree, because “the substance of [his] testimony was scientific, technical and not common knowledge to the average person,” and because he was “qualified to testify about how forces and motion impact the body.” Thirdly, the Court of Appeals determined that the trial court did not abuse its discretion by admitting evidence that the plaintiff had committed fraud in a prior bankruptcy proceeding because the plaintiff’s credibility was a central issue in this case. Lastly, the Court of Appeals determined that a judgement notwithstanding the verdict was not warranted because there was sufficient evidence that the subject motor vehicle collision did not cause the plaintiff’s injuries.
This case arose out of a motor vehicle collision in which the plaintiff was sideswiped by a semi-truck and forced off the road. The plaintiff did not report being hurt in the accident, and proceeded to his place of employment. Later that day, he left work to go to the emergency department, where he was diagnosed with strains and contusions. He continued to seek out various treatments before undergoing three separate surgeries to his neck, back, and pelvis. Almost one year later, he filed a negligence action against the semi-truck driver and his employer, as well as a claim for PIP benefits against his no-fault insurer. The case proceeded to trial, and plaintiff filed both a motion to strike or limit testimony by the defendants’ biomechanical expert and a motion in limine to Prohibit Improper Arguments, Evidence, and Statements at trial regarding allegations that the plaintiff’s medica treatment was attorney driven. The trial court denied both motions, and the jury ultimately found that the plaintiff had not sustained a physical injury caused by the subject motor vehicle collision.
The Court of Appeals was presented with numerous issues on appeal. First, the Court addressed the plaintiff’s claim that the defendants’ counsel had engaged in misconduct by arguing that the plaintiff’s medical treatment was driven by the plaintiff’s counsel. The Court disagreed, finding that the defendants’ counsel had a good faith belief that “the plaintiff’s course of healthcare was influenced by factors other than legitimate medical judgement.” Moreover, the Court found that the defendants’ counsel’s arguments in this regard did not deny plaintiff a fair trial.
We begin our review with an analysis of the claimed error surrounding the evidence regarding the relationship between the plaintiff’s counsel’s law firm and the plaintiff’s health care providers. It is relevant to the case whether the plaintiff’s course of healthcare was influenced in any way by factors other than legitimate medical judgment. Therefore, if counsel had a good faith belief that evidence existed regarding such non-medical factors, including financial gain for the health care providers, it would not be misconduct to introduce argument and questions in that regard. In this case, defendants had a filing from federal court that listed 105 cases in which Dr. Kornblum had both treated clients represented by the Morse law firm and testified on the patients’ behalf over a five-year period. Thus, counsel had a basis other than speculation for inquiry into this relevant area. Dr. Kornblum emphatically denied such relationships.
The conduct of defense counsel did not deny plaintiff a fair trial. The issue of attorney referrals appeared in four ways during this trial: 1) in opening argument, 2) during plaintiff’s cross-examination, 3) during Dr. Kornblum’s cross-examination, and 4) during closing arguments. As we noted above, the issue of attorney referrals was relevant to the case and counsel had a good faith basis upon which to ask questions in this regard. This line of questioning did not, however, prove very productive for the defense. Dr. Kornblum denied the existence of a referral relationship and an affidavit was introduced from plaintiff’s treating chiropractor which also denied any attorney referral relationship. Additionally, plaintiff affirmatively stated that he had no idea why he was referred by his treating chiropractor to Dr. Kornblum’s office and that he was not referred to the chiropractor by the Morse firm. A majority of defense counsel’s comments regarding attorney referrals was in opening and closing arguments. The opening statements foreshadowed evidence that the defense believed would be introduced, if only by the federal court filing, and the closing argument referred to evidence that was in fact introduced at trial. Defense counsel drew inferences favorable to his client from that evidence. The plaintiff argued opposite inferences. Ultimately, the jury was instructed that these portions of the trial were not evidence. The trial court did not err in declining to grant a JNOV based upon this line of inquiry or argument.
Second, the Court addressed the plaintiff’s claim that he was entitled to a judgement notwithstanding the verdict because the jury’s determination that he had not sustained a physical injury was contrary to the medical evidence in the case. The Court found that there was competing, competent evidence on the issue of causation. Therefore, the jury’s choice to believe the defendants’ experts over the plaintiff’s was not against the great weight of the evidence and was not grounds for a judgement notwithstanding the verdict.
The evidence in this case did, in fact, support the existence of a significant medical condition for which the plaintiff required surgery. However, there was evidence from which a jury could decide that the 2015 accident did not cause that physical condition. Jackson and the responding officer at the scene both testified that plaintiff reported he was not hurt. Plaintiff was able to drive himself down the road where defendant was stopped, then to work, and later to the hospital. Weaver opined that plaintiff’s diagnosed medical conditions were not from the 2015 car accident because neither the force nor the motion in that accident were consistent with the diagnoses that necessitated his surgeries. Images of plaintiff’s cervical spine taken on April 27, 2012, showed some degenerative abnormalities, arthritis, and signs of old trauma. Plaintiff’s MRI and CAT scan taken on the day of the accident only revealed degenerative conditions and plaintiff was released from the hospital with a diagnosis of strains and contusions. Dr. Singer opined that plaintiff had some preexisting arthritic or longstanding changes of the neck, thoracic spine and lumbar spine that were jarred or rattled and that he experienced a soft tissue strain of the neck as a result of the accident. Dr. Delano opined that there was no imaging evidence that would suggest the body suffered trauma in the June 2015 accident. Dr. Drouillard did not find any objective evidence of trauma in the plaintiff’s films.
On the other hand, there was also evidence introduced that plaintiff was physically injured by the 2015 car accident. Dr. Munk opined that more likely than not, plaintiff’s back or SI joint pain was caused by the accident because plaintiff self-reported the pain beginning after the June 26, 2015 car accident. Dr. Delano testified that an August 17, 2015 MRI of the thoracic spine showed some edema or swelling at the T7 level that he believed was a disc herniation into the bone that could have been caused by “trauma or heavy lifting or any number of things.” Dr. Kornblum also opined that because plaintiff did not have neck problems in 2013 and 2014, he thought the extent of the herniations in plaintiff’s neck at C4-5 and C5-6 were caused by the 2015 accident.
The jury chose to believe the defense experts and find that the plaintiff did not sustain an injury in the 2015 accident. The verdict was not against the great weight of the evidence and was supported by competent evidence. JNOV or the grant of a new trial was inappropriate and the court did not err in refusing to grant the motion.
Third, the Court addressed the plaintiff’s claim that the trial court erred in admitting testimony from the defendants’ biomechanical expert regarding whether the plaintiff’s injuries resulted from the accident. The plaintiff argued that the biomechanical expert was not medically qualified to render an opinion in this regard and that any such testimony was in violation of MRE 702. The Court again disagreed, finding that the substance of the biomechanical expert’s testimony, was “scientific, technical, and not of common knowledge to the average person.” Moreover, he was qualified to testify “about how forces and motion impact the body,” and multiple physicians agreed with his conclusions.
The trial court did not abuse its discretion in admitting Weaver’s expert testimony. The substance of Weaver’s testimony was scientific, technical and not common knowledge to the average person. Weaver’s testimony was probative of a fact at issue at trial, whether the accident caused plaintiff’s injuries, specifically his herniated discs. Weaver was further qualified to testify about how forces and motion impact the body, in this case the spine, by nature of his knowledge, experience, training, and education on the subject. In addition to his engineering degree in mechanics and biomechanics, Weaver had a master’s degree in the specialty of orthopedics. He was specially trained to investigate vehicle accidents. He had studied “the intervertebral disc as a function of both posture and muscle activation to protect the disc.” He had published work “on the effect of strengthening the back to decrease the likelihood of obtaining disc herniation.” Weaver was very clear to tell the jury that he was not a doctor and that he did not diagnose injuries, but rather tried to explain their causes. Plaintiff’s contention that Weaver was not qualified to give an opinion on causation because he lacked a medical degree highlights a weakness or gap in Weaver’s expertise that was subject to cross-examination. Weaver was otherwise qualified to render an opinion grounded in biomechanics. His opinions were based upon sufficient facts and data and the product of reliable principles and methods. Weaver’s opinions began with his review of facts and data in evidence. Specifically, he used photographs, police reports, depositions, medical records, and plaintiff’s biometrics, to opine that plaintiff’s diagnosed medical conditions were not from the 2015 car accident because he did not sustain the required motions and force consistent with his diagnoses. Weaver relied on the laws of physics and the principles of dynamics, peer reviewed biomechanical studies, computer models, simulated test devices, statistical data of vehicle crash testing, and his training and experience in reaching this conclusion.
We reject plaintiff’s request to find that in general, biomechanical engineers, as non- physicians, are not qualified to give opinions as to causation. The only published case cited by plaintiff for Michigan that excluded a biomechanical engineer’s expert testimony at trial was People v Unger, 278 Mich App 210; 749 NW2d 272 (2008). In Unger, the biomechanical engineer’s testimony was excluded not only because he was not a physician, but also because his theory as to how the victim’s injury occurred was “based on conjecture and [was] inconsistent with the facts in evidence . . . .” Id. at 249. The same circumstances do not apply here where Weaver’s opinion was not based on conjecture, multiple physicians agreed with his report, andhis conclusion that the herniations were not caused by the accident was consistent with the facts in evidence.
Lasty, the Court addressed the plaintiff’s claim that the trial court abused its discretion by admitting evidence that he’d committed fraud in a prior bankruptcy proceeding. The Court of Appeals agreed with the trial court that prior evidence of lying in a court proceeding was “relevant, probative and admissible” because the credibility of the plaintiff was one of the central issues in the present case.
In this case, evidence of plaintiff’s fraud in a prior bankruptcy was raised during plaintiff’s cross-examination. Defendants argued the evidence was admissible under MRE 608(b) as a specific instance of a judicial determination of credibility. Plaintiff opposed admission of the evidence on the ground that it was more prejudicial than probative because it was over 10 years ago. The court held that it had “no choice but to allow this evidence in.” We do not read this statement as the court believing that it had no discretion as to the admission of the evidence but, instead as an expression that the nature of this evidence, lying in a court proceeding, was such that it was relevant, probative and admissible in this case. The court’s decision was not an abuse of discretion. Plaintiff’s credibility was one of the central issues in this case. There were multiple factual determinations to be made regarding his truthfulness of the injuries he suffered, when they occurred, and to what extent they impaired his daily activities. Similarly, plaintiff’s credibility was central to his motive for bringing this suit and the truthfulness of his claims for damages.
Plaintiff further claims that the evidence unfairly prejudiced him by interjecting extraneous considerations of greed that played off defendants’ theory of attorney driven referrals. However, it was just as likely that the evidence garnered sympathy for plaintiff and, as decided above, defense counsel’s conduct was not so egregious as to deny plaintiff a fair trial.
Thus, the Court of Appeals affirmed the trial court’s Order Granting No Cause of Action following the jury verdict of no cause of action.
