Michigan Court of Appeals; Docket #356216; Unpublished
Judges Boonstra, Ronayne Krause, and Cameron; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – Present) [§3135(5)**]
Determining Permanent Serious Disfigurement As a Matter of Law [§3135(1)(2)]
Causation Issues [§3135]
TOPICAL INDEXING:
Evidentiary Issues
SUMMARY:
In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiff Nahsuante Scarber’s third-party auto negligence action against Defendants Delvester Issa and Philip Accettura. The Court of Appeals held that Scarber did not present sufficient evidence to create a question of fact as to whether her injuries were causally connected to the subject motor vehicle collision. The Court further held also that close-up photographs of Scarber’s post-collision surgical scars were insufficient to demonstrate a permanent serious disfigurement.
Nahsuante Scarber was traveling as a passenger in a vehicle driven by Delvester Issa, when Issa crashed into a vehicle driven by Philip Accettura. The officer who responded to the scene of the collision described the damage to both vehicles was minor, and Scarber told the police that she was not injured. Later that day, she complained of back, neck, and shoulder pain, which she initially attributed to her pregnancy, which was in its third trimester. She did not receive further medical treatment for her injuries until after her pregnancy, based on her OB/GYN’s recommendation that she “[not] seek further medical examination [until delivery] because doing so might put the baby at risk.” After giving birth one month later, Scarber, received treatment for neck, lower back, right shoulder, right arm, right hip, and right leg pain, which she attributed to the collision, from Star Pain Management LLC. Her doctor at Star Pain Management prescribed her physical therapy, which she underwent for several months before discharging herself because her insurer suspended her benefits. Around the time of her discharge from physical therapy, Scarber began receiving treatment from numerous doctors at Mercyland Health Services, who prescribed her pain medications and wrote her disability certificates. She then continued to receive treatment for various issues until December 2018, when she underwent numerous MRIs of her spine, which revealed multiple herniated discs and severe neural foraminal narrowing. Her doctor diagnosed her with cervical radiculopathy and recommended that she undergo disc replacement surgery, which she did in February of 2019. Several months after that, she had further imaging done of her spine, which revealed mild degenerative spondylosis at L4-5 and L5-S1 and a small left foraminal disc herniation at L3-4, requiring further surgery.
At some point after the collision, Scarber filed the underlying third-party auto negligence action against Issa and Accettura, alleging that the May 2017 collision had caused her to sustain serious impairments of body function and that her surgical scars constituted permanent serious disfigurements. Issa and Accettura moved for summary disposition, arguing that Scarber presented no evidence that her injuries or scars were causally connected to the accident. The trial court granted their motion, albeit for an alternative reason: that Scarber’s injuries did not affect her general ability to lead her normal life and that her scars did not constitute permanent serious disfigurements.
The Court of Appeals affirmed the trial court’s ruling ultimately, but held that the trial court erred in concluding that no question of fact existed as to whether Scarber’s injuries affected her general ability to lead her normal life—the third prong of the test for serious impairment of body function set forth in McCormick v Carrier, 487 Mich 180 (2008). The Court held that Scarber’s testimony, alone—in which she testified that she could no longer run or lift more than 25 pounds as a result of the collision, that she could no longer cook or clean as a result of the collision, and that she had to quit her job in which she “engaged in baking and preparing gift boxes” as a result of the collision—was sufficient to create a question of fact on this issue.
“We conclude that plaintiff established a genuine question of material fact whether her ability to live in her normal manner had been affected by her injuries. Plaintiff testified that she could no longer run or lift more than 25 pounds, and medical records show that for a lengthy period, she was restricted from lifting more than 10 pounds. She also testified that, before the accident, she could cook a full course meal and had even taken some culinary arts classes, whereas after the accident she could only cook a little and could no longer clean at all. Plaintiff indicated that she had previously engaged in baking and preparing gift boxes as a form of self-employment, and she was no longer able to do so. Viewing this evidence in the light most favorable to plaintiff, there is a genuine issue of material fact regarding whether her injuries affected her general ability to lead her normal life. Therefore, the trial court erred in concluding as a matter of law that plaintiff’s general ability to lead her normal, pre-accident life was unaffected or self-imposed.”
The Court of Appeals held that the trial court also erred when it determined that Scarber’s surgical scars did not constitute a permanent serious disfigurement because they occurred as a result of the surgery, not the collision. The Court of Appeals noted that, “[t]he fact that the surgical scars are a secondary effect to correct the injury does not make the scars irrelevant,” and that, if a causal link could be drawn between the collision and the injuries which required that Scarber undergo surgery, that same causal link would extend to her surgical scars.
Despite this error in its analysis, the trial court arrived at the correct outcome regarding Scarber’s scars. The Court of Appeals held that Scarber did not present sufficient evidence to create a question of fact as to whether her scars constituted a permanent serious disfigurement, because all she presented were close-up photographs that did not make it clear how noticeable they were to a “normal” observer.
“As a matter of ‘common knowledge and experience,’ facial scars are—all other things being equal—generally more striking than scars elsewhere on the body. A scar on the front of a person’s neck can be similarly conspicuous. However, the photographs provided by plaintiff are insufficient to evaluate the actual conspicuousness of the scars. Plaintiff has provided only one photograph of each scar. The photograph of the scar on plaintiff’s back is an extreme close-up that yields no information about its size or location, nor does it yield any information about how visible the scar might be from a more ‘normal’ perspective. The blurry photograph of the scar on plaintiff’s neck is slightly less close-up, but it is not clear whether it depicts the front or the back of plaintiff’s neck. It is also not apparent how visible the scar would be from the ‘normal’ perspective of another person or in other lighting conditions, nor is it apparent whether the scar is merely discolored or also differently textured. Plaintiff’s description of the scars as ‘large’ is a subjective description, not an objective description.
We conclude that the photographs are sufficient to show that the scars have physical characteristics, contrary to the trial court’s holding, but they are insufficient to demonstrate a permanent serious disfigurement. The trial court therefore ultimately reached the correct result.”
The Court of Appeals held that summary disposition was also proper on the issue of serious impairment of body function—despite its prior holding that a question of fact existed as to whether Scarber’s injuries affected her general ability to lead her normal life—because Scarber failed to establish, preliminarily, that her injuries were causally connected to the collision. None of Scarber’s treating physicians ever offered an opinion regarding causation—beyond merely reporting that Scarber, herself, attributed her injuries to the collision—and, as a result, Scarber’s allegation that her injuries were caused by the collision was a merely plausible explanation for how her injuries came to be. And “merely plausible,” the Court noted, is not sufficient to survive a motion for summary disposition.
“However, to survive a motion for summary disposition, the evidence must demonstrate that plaintiff’s claim is more than merely plausible. Skinner, 445 Mich at 164-167. This means that one particular conclusion must more probable than any other conclusions, rather than merely plausible. Id. As defendant observes, a temporal relationship is insufficient, by itself, to establish the requisite causal nexus. Lowery v Enbridge Energy Ltd Partnership, 500 Mich 1034, 1034-1035; 898 NW2d 906 (2017). Critically, in Skinner, Patrick, and Wilkinson, experts expressly provided explanations of how and why the injury at issue would flow from the act at issue. As noted, plaintiff’s pregnancy is a significant confounding factor that made immediate detection of possible symptoms impossible, through no fault of, or attribution to, plaintiff. However, although that should not be held against plaintiff, it likewise does not work in her favor, because the courts nevertheless may not guess or pretend to have medical expertise of our own. The record indicates that the accident was not so severe that we should presume the temporal proximity was no coincidence. It was therefore incumbent upon plaintiff to provide some kind of expert testimony or opinion to ‘fill in the gap’ and elevate the causal link between the accident and her injuries beyond mere plausibility. Plaintiff contends that some of her treating physicians opined that her injuries were caused by the accident. However, the treating physicians were clearly only reporting what plaintiff told them and offered no explanation for how the injuries could have been caused by the accident. Thus, plaintiff has not provided the necessary mechanism of action, expert opinion, or other basis for elevating the link between the accident and her injuries from plausible to probable.”
