U.S. Dist. Court, Eastern District of Michigan, S. Division; Case No. 12-CV-14825
Judge George Caram Steeh; Unpublished
Official Federal Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (McCormick Era: 2010 – present) [§3135(5)**]
Important Body Function 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
CASE SUMMARY:
In this unpublished federal Opinion by Judge Steeh regarding plaintiffs’ claims for noneconomic loss, the court held that a question of fact existed regarding whether the plaintiff suffered a serious impairment of body function because the plaintiff presented sufficient evidence to create a genuine issue of material fact under the McCormick Standard.
The plaintiff in this case was involved in an accident that caused minor damages to his vehicle. The police report indicated that the damage to his vehicle was “a 1 out of 7,” and the plaintiff alleged that his seatbelt was broken as a result of the impact. The Plaintiff reported to the police that he was not injured, but he went on to visit Providence hospital the next day. The plaintiff's hospital records reflect mild discomfort in his neck, normal range of motion during his musculoskeletal exam, and a diagnosis of "acute MVA with strains." He was sent home with pain medicine. After the hospital visit, he went on to visit a Dr. Louis Radden 3 to 5 times. He also went to physical therapy at Med City Rehab three days a week until he returned to work approximately eleven weeks later. For approximately one month after that, he went to physical therapy once a week. Plaintiff missed eleven weeks of work after the accident and asserted at oral argument that his return to work was "short-lived." Plaintiff states that he has never done housework inside the house, but used to do yard work, which he claims he can no longer do. He also asserts he cannot maintain his vegetable garden; lift weights; work on old used cars; fish and hunt with his son; or engage in activities with his six young grandsons like he did prior to the accident.
In arguing that the Plaintiff did not meet the threshold under McCormick standard, the defendant conceded for purposes of this motion only, that the ability to move the back and shoulder are important body functions under the second element of the McCormick test. However, the Defendant asserted that the plaintiff's alleged injuries did not meet the first and the third elements of the McCormick test. The Court disagreed and held that the plaintiff produced sufficient evidence to create a genuine issue of material fact regarding whether Plaintiff satisfied these elements. With regard to the first element of objective manifestation, the court held that:
"Although the court finds defendant's argument to be compelling, considering the evidence in the light most favorable to the non-movant, which the court must do for purposes of this motion, leads the court to conclude that a material question of fact exists as to whether plaintiff has an objectively manifested impairment. For instance, as described above, plaintiff has presented August 2012 MRI results reporting an '[a]nterosuperior labral tear' and disc bulges at C3/C4, C4/C5, C5/C6, and C6/C7. Plaintiff also had examination by Dr. Antoine Geffrard in January 2013, following which Dr. Geffrard diagnosed soft tissue injuries, which would resolve within 'two to four month[s],' but also stated that plaintiff's underlying disc issues and osteopathy were likely exacerbated by the accident. Plaintiff also asserts that his seatbelt was broken on the impact of the accident, suggesting the force of the impact was significant and logically led to his impairment. Although there are no third-party documents in the record concerning the broken seatbelt, plaintiff does attest to this fact in his affidavit signed August 21, 2013. In that affidavit, plaintiff further describes how his life has changed since the accident, noted above by the court. The court notes that a back and/or shoulder injury is a less observable injury than that of the ankle, as in the McCormick case, and therefore the evidence required to survive this motion is necessarily different. The court will accept plaintiff's medical evidence as objective manifestation of plaintiff's impairment.”
With regard to the third element of general ability, the court held that the "plaintiff's representations and testimony, at deposition and in his affidavit, satisfy the third McCormick prong." In so holding, the court noted that this "determination appears to conform to recent Michigan cases applying McCormick, such as Smart v. Kowalesky, 2011 Mich. App. LEXIS 1910, 2011 WL 5064278 (Mich.App. 2011) (finding the defendants in a threshold case were not entitled to summary disposition where although plaintiff returned to work 90 days after the accident, his foot injury affected his ability to do maintenance around his house, go bowling, and help his brothers on their farms).”
Based on the foregoing questions of fact, the court DENIED the defendant's motion for Summary Judgment.
