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Davis, et al v Auto Owners Ins Co (COA – PUB 4/22/2021; RB #4258)

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Michigan Court of Appeals; Docket #353315; Unpublished
Judges Glecher, Borrello, and Swartzle; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion


STATUTORY INDEXING:
Entitlement to PIP Benefits: Arising Out of / Causation Element [§3105(1)]
Causation Issues [§3135]

TOPICAL INDEXING:
Not Applicable


SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Lee Davis’s first-party action against Defendant Home-Owners Insurance Company (“Home-Owners”), and his third-party action against Defendants Teshonb Damian Fore and Renaissance Real Estate Ventures (“Renaissance”). The Court of Appeals held that Davis presented sufficient evidence to create a question of fact—with regard to both his first- and third-party actions—as to whether his injuries were causally related to the subject motor vehicle collison.

Lee Davis was rear-ended while stopped at a red light but declined emergency treatment at the scene of the collision. Later that day, however, he developed pain in his neck and arm, prompting him to go to the emergency room where an MRI was conducted and revealed “disc space narrowing with ‘cord abutment’ at C6-C7 and ‘severe left foraminal narrowing’ at C7-T1.” Davis’s pain did not resolve with conservative treatment and physical therapy, and he thereafter received treatment from a neurosurgeon, Dr. Teck Soo, who diagnosed Davis with a traumatic disc herniation at C7-T1 and ultimately performed both a cervical fusion and a laminectomy. Davis then received further treatment from Dr. Paul Shapiro, who performed a surgical decompression of Davis’s left ulnar nerve. Davis applied for no-fault PIP benefits from Home-Owners, and after Home-Owners denied his claims, Davis filed the underlying first- and third-party actions against Home-Owners and the negligent driver who caused the collision.

Home-Owners moved for summary disposition in the first-party action—arguing that Davis failed to prove that his injuries were causally related to the collision—and offered the medical opinion of Dr. Ronald Garver, an orthopedic surgeon and independent medical examiner, who concluded that Davis’s injuries pre-existed and were not caused by the collision. In response, Davis submitted an affidavit from Dr. Soo, a letter from Dr. Shapiro, and an affidavit from accident reconstructionist Sammie Hall, in which all three averred that Davis’s injuries were directly related to the collision. Notably, Davis had never received treatment for neck, back, or hand pain prior to the collision, yet the trial court still concluded that Davis failed to present sufficient evidence to create a question of fact as to whether his injuries were caused by the collision, ultimately dismissing both his first- and third-party actions.

The Court of Appeals reversed the trial court’s summary disposition order as to the issue of causation, noting firstly, as to Davis’s first-party action, that the trial court seemed to misunderstand the difference between proving causation in a first-party action and proving causation in a third-party action. The Court then held that Davis “easily” satisfied the standard set forth in McPherson v McPherson, 493 Mich 294 (2013) for proving causation under MCL 500.3105(1).

“To meet the requirements of MCL 500.3105(1), the causal link between the alleged injuries and the use of the motor vehicle must be more than coincidental, fortuitous, or ‘but for,’ the Court explained. McPherson, 493 Mich at 297. Although McPherson did not affirmatively define the term ‘arising out of,’ the phrase certainly embraces injuries qualifying as the direct consequences

The affidavits of Davis’s physicians easily satisfy the McPherson standard. Both physicians unequivocally averred that Davis sustained injuries as a result of the auto accident and that the accident-related injuries necessitated his surgeries. Both attested that Davis had no pain or other symptoms before the accident. Dr. Shapiro could not have been more straightforward— ‘It is my opinion that the cubital tunnel syndrome . . . this patient developed was a direct result of the motor vehicle accident . . . .’ And Dr. Soo explained in detail that the evidence of chronic degeneration in Davis’s spine ‘did not correlate with the symptoms suffered by this patient’; rather, Dr. Soo explained, the evidence supported that Davis had sustained a “flexion-extension injury’ during the accident which ‘was more likely than not the cause of the herniation at C7-T1.’ Combined with the fact that the surgery alleviated Davis’s postaccident pain, Dr. Soo attested that the surgery he performed was ‘directly related’ to the accident. This evidence met the “arising under’ standard set forth in MCL 500.3105(1).”

As to the trial court’s dismissal of Davis’s negligence claim, the Court of Appeals noted that “the trial court did not address causation in a way we can readily comprehend,” and reversed the trial court’s dismissal as to that action as well.  The Court of Appeals held the trial court erred in determining that the opinions of Sammie Hall and Drs. Soo and Shapiro were unreliable pursuant to MRE 702, noting that “[t]he trial court offered no explanation for its sua sponte determination that plaintiffs’ causation evidence was unreliable under either MRE 702 or MCL 600.2955.” Furthermore:

“The trial court’s ruling does not reflect any analysis of the application of the factors in MRE 702 or MCL 600.2955(1). We do not know whether the trial court found Drs. Soo and Shapiro unqualified, or instead utilized unreliable methods when reaching their opinions. Because the trial court’s ruling does not indicate that it considered any aspect of MRE 702 or ‘the range of indices of reliability listed in MCL 600.2955,’ we have no basis for deciding that the trial court properly performed its gatekeeping role.

We assume without deciding that a trial court is not always required to hold a full-blown Daubert hearing before concluding that a party’s proffered evidence is unreliable. Nevertheless, a court is required to make some reviewable assessment of the considerations and evidence it entertained in reaching a reliability conclusion. We find nothing in the record now before us supporting that the physicians or Hall were unqualified as experts, or that their opinions lacked a firm scientific foundation. But because only the trial court is empowered to act as a gatekeeper, we draw no final conclusions regarding the adequacy or inadequacy of plaintiffs’ scientific evidence under MRE 702 and MCL 600.2955. Rather, we hold that the trial court’s reliability ruling was premature and based on an inadequate record. See Jahn v Equine Servs, PSC, 233 F3d 382, 393 (CA 6, 2000). Accordingly, we vacate the trial court’s reliability ruling and remand for proceedings consistent with this opinion.”

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