Michigan Court of Appeals; Docket #354183; Unpublished
Judges Sawyer, Boonstra, and Rick; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Motor Vehicle Exception to Governmental Tort Liability Act
Evidentiary Issues
SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals affirmed in part and reversed in part the trial court’s summary disposition order dismissing Plaintiff William Eagle’s third-party action against Defendant Macomb Intermediate School District (“MISD”). The Court of Appeals held that the motor vehicle exception to governmental immunity applied to this case because Eagle presented sufficient evidence to create a question of fact as to whether he suffered a shoulder injury in the subject school bus versus motor vehicle crash caused by the negligence of MISD’s bus driver. The Court also held, however, that Eagle failed to present sufficient evidence to create a question of fact as to whether he suffered a brain injury in the crash.
Devell Antuan Patmon was driving an MISD school bus when he took his eyes off the road momentarily to change the radio station, only to look up and realize that the truck in front of him was coming to a stop. In order to avoid rear-ending the truck, Patmon swerved into the oncoming lane of traffic, colliding head-on with a vehicle driven by Eagle. Eagle testified that he may have blacked out momentarily, and that the first thing he remembered after the crash was blood coming down his face, blocking his vision. He also testified that his left shoulder was in “significant pain” immediately after the crash. EMS responded to the scene of the crash, and paramedics noted in their report that they had no reason to suspect that Eagle had suffered an intracranial injury. They transported Eagle to the hospital, where he underwent a CT scan of his left shoulder and a CT scan of his head. After reviewing the CT scan of his shoulder, his doctors at the hospital determined that Eagle had a “ ‘chronic rotator cuff tear’ ” and other degenerative changes. The CT scan of his head revealed no abnormalities.
Eagle saw an orthopedic surgeon, Dr. Charles C. Stroud, for his left shoulder injury, and Dr. Stroud opined that Eagle’s left shoulder rotator cuff tear was degenerative. Conversely, Dr. Parmod Mukhi performed a a physiatric evaluation of Eagle and opined that Eagle’s injury arose out of the car crash and affected his general ability to lead his normal life. Additionally, Eagle saw Dr. Nida H. Hamid, Psy.D. for a neuropsychological evaluation, and Dr. Hamid diagnosed Eagle with a “ ‘[m]ild neurocognitive disorder’ ” caused by “ ‘combination of aging affects[,] . . . [his medical history of concussion at the time of his [car accident][,] [and] [his] cardiac and cerebro vascular history.’ ”
MISD then retained Dr. John F. O’Leary, Ph.D. to perform a neuropsychological evaluation of Eagle, and Dr. O’Leary averred that there was no evidence Eagle suffered a brain injury as a result of the collision. MISD also retained Dr. Matthew Sardelli, M.D. to perform an orthopedic evaluation of Eagle, and Dr. Sardelli averred that Eagle’s rotator cuff tear had arisen before the crash and was not aggravated by the crash. Ultimately, MISD moved for summary disposition, arguing that the motor vehicle exception to governmental immunity did not apply in this case because Patmon’s negligent operation of the bus did not actually cause Eagle to suffer any injury. The trial court disagreed and denied MISD’s motion.
The Court of Appeals affirmed the trial court’s denial as to Eagle’s shoulder injury, but reversed the trial court’s denial as to Eagle’s brain injury. Preliminarily, the Court rejected MISD’s argument “that a plaintiff must rule out all other potential causes of a putative injury to satisfy the ‘resulting from’ language under [the motor vehicle exception to governmental immunity statute].” The statute, MCL 691.1405, the Court noted, requires more than a simple “but for” analysis, but does not require that a plaintiff “establish beyond doubt that the collision caused his or her injuries.”
“To begin, we disagree with MISD’s suggestion that a plaintiff must rule out all other potential causes of a putative injury to satisfy the ‘resulting from’ language under MCL 691.1405. MISD misconstrues this Court’s holding in Setta, unpub op at 3. In that case, the plaintiff offered zero evidence that her injuries resulted from the car accident at issue. Id. at 3. For that reason, this Court noted that it ‘need not scrutinize the term ‘resulting from,’ but must simply apply the clear language of the statute . . . .’ Id. Because the plaintiff in that case offered no evidence that her injuries resulted from the car accident, it went without saying that her injuries did not result from the car accident under MCL 691.1405.
Also, although this Court held in Curtis v Flint, 253 Mich App 555, 560; 655 NW2d 791 (2002), that the phrase ‘resulting from,’ as used in MCL 691.1405, ‘requires a more direct causal connection than the proximate cause ‘but for’ analysis[,]’ this does not imply that a plaintiff must rule out other potential causes of a putative injury. In Curtis, an emergency vehicle was approaching a red light at an intersection. Id. at 557. A car driving in front of the plaintiff moved over to the curb lane and stopped to let the emergency vehicle through. Id. The plaintiff rear-ended the car parked in the curb lane and was injured. Id. The plaintiff argued that the emergency vehicle was negligent in approaching and entering the intersection and that, but for this negligence, the plaintiff would not have rear-ended the car in front of him. Id. at 558. This Court rejected plaintiff’s argument, holding that the plaintiff failed to show that his injuries resulted from the negligent operation of the emergency vehicle. Id. at 562. Reasoning the phrase ‘resulting from’ as used in MCL 691.1405’ required a more direct causal connection than but-for causation, this Court explained that a plaintiff would have to show either ‘physical contact’ between his vehicle and the government-owned vehicle or that ‘the government-owned vehicle physically forced the plaintiff’s vehicle off the road or into another vehicle or object.’ Id. at 561. Nowhere in that opinion did this Court suggest that a plaintiff must establish beyond doubt that the collision caused his or her injuries.”
As to Eagle’s shoulder injury, the Court of Appeals held that Eagle presented sufficient evidence to create a question of fact as to whether that injury arose out of Patmon’s negligence in causing the bus crash. Although Drs. Sardelli and Stroud opined that the tear was degenerative, Dr. Mukhi opined that the tear was caused by the crash, and it was for the jury to weigh each doctor’s respective credibility.
“That said, we disagree with MISD’s argument that plaintiffs failed to offer evidence that Eagle’s left shoulder injury—namely his torn rotator cuff—was a direct result of the collision. Unlike in Curtis, the government-owned vehicle in this case—the school bus—made physical contact with Eagle’s car. And plaintiffs offered evidence that Eagle’s left shoulder injury arose only as a result of this physical contact. In his deposition, Eagle testified that, immediately after the collision, he felt pain in his left shoulder, and that he never had issues with his left shoulder before the collision. More importantly, plaintiffs provided medical evidence to corroborate Eagle’s testimony: Dr. Mukhi attested that he treated Eagle for pain after the accident and believed Eagle’s rotator cuff tear resulted from the accident.
Of course, defendants did offer evidence contradicting Dr. Mukhi and Eagle. Dr. Sardelli, who performed an independent examination of Eagle, opined that Eagle’s rotator cuff injury arose before the accident and there was no indication the collision aggravated this preexisting injury. Also, in his treatment notes, Dr. Stroud referred to Eagle’s injury as ‘degenerative.’ Nevertheless, this did not entitle MISD to summary disposition. Because this evidence conflicts with plaintiffs’ evidence, and there is no way to reconcile this conflict without weighing witness credibility, a genuine issue of material fact exists, precluding summary disposition.”
As to Eagle’s brain injury, the Court of Appeals held that Eagle failed to present sufficient evidence to create a question of fact as to whether that injury arose out of Patmon’s negligence in causing the bus crash. Notably, the Court of Appeals held that Dr. Hamid’s neuropsychological evaluation was not sufficient to create a question of fact because, although she opined that Eagle’s concussion contributed to his neurocognitive disorder, she did not, in fact, have any “factual basis to conclude that Eagle suffered a concussion from the collision.”
“On the other hand, we agree with MISD in regard to Eagle’s putative brain injury: the record does not leave open a genuine issue of material fact as to whether Eagle suffered a brain injury as a result of the collision. Although Eagle received a three-inch laceration across his forehead as a result of the collision, he testified that he didn’t “want to use the word unconscious, but I don’t know if I blacked out for a second, few seconds or whatever, but I sure saw a lot of stars.” Moreover, according to the medical record generated at the Mt. Clemens Regional Medical Center, Eagle ‘denies any loss of consciousness.’ EMS reported that Eagle appeared “alert and oriented” after the accident, and Waller testified that nothing he observed indicated that Eagle might have suffered an intracranial injury. At the same time, Eagle testified that no medical provider had ever told him that he had a brain injury, and Eagle’s medical records from the emergency room corroborate this testimony. Eagle’s medical records do not indicate any kind of brain injury. Indeed, the CT scan of Eagle’s head and spine revealed no abnormalities. Equally important, after reviewing Eagle’s medical records and performing an independent neuropsychological evaluation on Eagle, Dr. O’Leary concluded that he could discern ‘no indication of residual cognitive compromise associated with the residual effects of a concussion or traumatic brain injury.’
Plaintiffs offered only one piece of evidence to contradict the foregoing: Dr. Hamid’s neuropsychological evaluation. Dr. Hamid diagnosed Eagle with a ‘[m]ild neurocognitive disorder,’ which she, in part, attributed to Eagle’s ‘medical history of concussion at the time of his [car accident] . . . .’ This report, however, does not establish a question of fact, for Dr. Hamid had no factual basis to conclude that Eagle suffered a concussion from the collision. See Mullholland v DEC Int’l Corp, 432 Mich 395, 414; 443 NW2d 340 (1989) (noting that an expert must have an evidentiary basis for his or her own conclusions for those conclusions to be admissible); Snead v John Carlo, Inc, 294 Mich App 343, 354; 813 NW2d 294 (2011) (‘The moving party [under MCR 2.116(C)(7)] may submit affidavits, depositions, admissions, or other documentary evidence in support of the motion if substantively admissible.’) (citation omitted). In her report, Dr. Hamid indicates she concluded Eagle suffered from a mild neurocognitive disorder by “taking into account [the] medical history of concussion at the time of the MVA[.]’ But as noted, nowhere do Eagle’s medical records suggest that Eagle suffered a concussion as a result of the accident.5 For that reason, Dr. Hamid’s factual basis for her conclusion is unclear and does not create a genuine issue of material fact. Therefore, the trial court should have granted summary disposition in favor of MISD on plaintiff’s claim relating to his alleged brain injury.”
