Michigan Court of Appeals; Docket #356865; Unpublished
Judges Borrello, Jansen, and Murray; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion, Link to Dissent
STATUTORY INDEXING:
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 – Present) [§3135(5)**]
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – Present) [§3135(5)**]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
In this 2-1, unpublished, per curiam decision (Murray, dissenting), the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Ricky Jones’s third-party auto negligence action against Defendant Ashley Smith. The Court of Appeals held that a question of fact existed as to whether Jones satisfied the first and third prongs of the test for serious impairment of body function set forth in McCormick v Carrier, 487 Mich 180 (2010)—specifically, whether he sustained an objectively manifested impairment which affected his general ability to lead his normal life.
Ricky Jones had been partly disabled since 2002 as a result of two congenital defects of his cervical spine. In 2012, he underwent a C2-C5 laminectomy surgery in which two metal rods were affixed on each side of his cervical spine, but he continued to experience significant pain—described at various times as being a 9/10 or a 10/10—and treat regularly with Michigan Pain Consultants thereafter. His days consisted primarily of taking care of his children and working around his home, although he could not perform some household chores and he needed assistance with self-care.
In 2017, Jones was rear-ended by a vehicle driven by Ashley Smith. Jones denied medical treatment at the scene and did not present to the hospital until the following day, when he was told “nothing was wrong with him.” A week later, Jones was seen by his primary care physician, “who found that [Jones] had no new deficits.” He continued to experience pain, however—which he claimed was “so bad he could not care for himself, or participate in activities with his children like he used to”—and thus he was referred to an orthopedic surgeon, Dr. Scott Russo. In June of 2019, Dr. Russo observed ‘erosion of the base of the skull from his right-sided rod,’ which he opined, based on Jones’s subjective report, was the most likely cause of Jones’s increased pain. Moreover, Dr. Russo opined that the erosion was most likely attributable to Jones’s head “jostl[ing] around” during the crash and rubbing against the rod in his neck. When asked “if there was any objective evidence that the accident caused the alleged increase in Jones’s pain,” however, Dr. Russo responded, ‘you mean, did I see a structural change . . . ? No.”
As a result of his increased pain and the erosion of the base of his skull, Jones underwent another surgery in 2019 to have the rod on the right side of his neck removed. At some point, he filed the underlying third-party auto negligence action against Smith, and Smith moved for summary disposition, arguing that Jones failed to establish that he suffered an objectively manifested impairment that affected his general ability to lead his normal life. The trial court agreed—analyzing only the objective manifestation element of the test for serious impairment of body function—and granted Smith’s motion.
The Court of Appeals reversed the trial court’s summary disposition, holding, first, that a question of fact existed as to whether Jones suffered an objectively manifested impairment—a “close determination,” according to the Court. Specifically, the Court held that the evidence of erosion to Jones’s skull, coupled with Jones’s subjective report of markedly increased pain after the crash and Dr. Russo’s opinion—that, based on Jones’s report of markedly increased pain after the crash, the erosion to his skull and resultant pain was most likely the result of his head jostling around during the crash—was sufficient to create a question of fact as to whether Jones suffered an objectively manifested impairment as a result of the crash.
“At his deposition, Dr. Russo testified that plaintiff had preexisting conditions in his head and neck, and that the surgery performed by Dr. Luders preserved plaintiff’s spinal cord so that he was not a quadriplegic. Dr. Russo testified, ‘my position was that the motor vehicle accident, per his report, his complaints and reports to me, escalated his clinical complaints, and so my opinion was based on those, the nature of that.’ Plaintiff felt subjectively worse, which to Dr. Russo, justified surgery. Dr. Russo also testified that the 2017 accident, ‘per his report to me, was the most clinically symptomatic situation, with his head jostled around at the time of the accident, bumped into that rod and escalated his pain. I mean, that’s—simply, that’s my position.’ When Dr. Russo was asked if there was any objective evidence that the accident caused the alleged increase in plaintiff’s pain, Dr. Russo said, ‘you mean did I see a structural change . . . between prior studies and that study? No.’ Dr. Russo did not disagree with the radiology report that there was no evidence of loosening or failure of the hardware.
It is a close determination whether plaintiff met the objectively manifested requirement for a threshold injury. In considering the evidence in the light most favorable to plaintiff, as is proper for review of a motion for summary disposition under MCR 2.116(C)(10), Glasker-Davis, 333 Mich App at 229, it appears that genuine issues of material fact exist as to whether his impairment was objectively manifested. Although the 2019 MRI report established no change in position of his hardware, plaintiff complained of ‘excruciating pain’ after the accident, there was evidence of erosion to his spine, and Dr. Russo surgically removed the right-sided rod to alleviate plaintiff’s pain. The evidence established a genuine issue of material fact whether the 2017 accident aggravated plaintiff’s preexisting conditions. Therefore, because genuine issues of material facts existed, the trial court erred when it granted defendant summary disposition.”
The Court of Appeals also held that a question of fact existed as to whether Jones’s injuries affected his general ability to lead his normal life. Jones testified that, before the crash, even though he could not help his wife with chores like vacuuming and washing dishes, he was able to perform a myriad of other tasks, including: taking his kids to school, setting the table, cleaning up after dinner, getting his kids ready for bed, helping his kids with homework, throwing a football with his son, and doing yardwork. After the crash, however, his pain had increased such that he could not perform many of these activities at all. His wife testified that he could no longer “care for himself, perform manual tasks, sleep, lift, bend, concentrate, work around the house, drive, or have sex,” among many other things, all of which was sufficient to create a question of fact as to whether his crash-related injuries affected his general ability to lead his normal life, even considering his partly disabled pre-existing condition.
“Plaintiff testified that before the accident, he took his kids to school and other activities, and spent a lot of time with his family. He set the table and cleaned up after dinner, got the kids ready for bed, helped with homework, and threw a football with his sons. He conceded that he needed his wife’s help before the accident with things like putting his shirt on, and that he could not help his wife with household chores like vacuuming or washing dishes. He did, however, help his wife maintain their garden and yard, which included a pool, basketball court, and trampoline. Plaintiff testified that after the accident, he felt excruciating pain, and could not do the things he was able to do before the accident. He could no longer throw a football around with his sons, and felt so much pain that he cried in front of his children for the first time. Although he had pain before the accident, his level of pain was different thereafter. His neck hurt even while he was sitting still. Plaintiff’s wife attested that after the accident, plaintiff could not care for himself, perform manual tasks, sleep, lift, bend, concentrate, work around the house, drive, or have sex. He could not take the children to the park or throw a ball with them. He could not wash dishes, vacuum, or sweep the floors. They had to hire help for the pool, grass, and snow.”
Judge Murray dissented, arguing that Dr. Russo’s opinion was insufficient to create a question of fact as to whether Jones suffered an objectively manifested impairment. He characterized Dr. Russo opinion as only “that the accident ‘could’ have increased plaintiff’s pain where his pre-existing spinal hardware was located.” Moreover, he noted that Dr. Russo had “no access to any prior medical records or other information regarding plaintiff’s prior neck and pain complaints.”
“There is no question that this evidence has to be reviewed in a light most favorable to plaintiff, the non-moving party, but even when doing so, the majority is incorrect in quantifying this issue as a ‘close call.’ Quite simply, all plaintiff has for evidence are his subjective complaints and testimony; he has no objective evidence backing up his subjective complaints. Dr. Russo’s letter does not alter this conclusion, as all he opined was that the accident ‘could’ have increased plaintiff’s pain where his pre-existing spinal hardware was located. Critically, Dr. Russo also placed a big caveat on this statement as he had no access to any prior medical records or other information regarding plaintiff’s prior neck and pain complaints, and as defendant recounts in its brief, there were many. Nor is there any objective evidence that this car accident played any role in any increased pain experienced by plaintiff. As such, the trial court was required to decide that issue as a matter of law, MCL 500.3135(2)(a), and its conclusion that plaintiff failed to meet his evidentiary burden was correct. I would affirm.”
