Michigan Court of Appeals; Docket #310270; Unpublished
Judges Whitbeck, Fitzgerald, and O’Connell; Per Curiam;
Official Michigan Reporter Citation: Not applicable; Link to Opinion 
STATUTORY INDEXING:
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010-Present) [§3135(5)**]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, in a third-party auto liability case, the Michigan Court of Appeals held that the plaintiff had presented sufficient evidence of a factual dispute concerning the nature and extent of her injury under MCL 500.3135(2) and, therefore, the trial court properly denied defendant’s motion for directed verdict and judgment notwithstanding the verdict on this issue. Furthermore, the Court of Appeals upheld the trial court’s award of case evaluation sanctions calculated based upon the plaintiff’s attorney time of $400 per hour, based on the plaintiff’s counsel’s skill, experience, and reputation.
In this case, the plaintiff was injured in a motor vehicle accident that occurred on August 21, 2009. At the scene of the collision, witnesses testified that plaintiff appeared dazed and confused and the plaintiff testified that she could not remember the events surrounding the collision. The plaintiff was taken to the hospital and underwent a brain CT scan that did not indicate any positive findings of a traumatic brain injury. A few days after the collision, the plaintiff followed up with her family doctor, who referred her to a pain management specialist and a neuropsychologist. The neuropsychologist testified that the results of the cognitive tests he performed on plaintiff were consistent with the plaintiff suffering a traumatic brain injury. The plaintiff followed up with another medical doctor who testified that she believed the plaintiff had suffered a brain injury on the basis of the plaintiff’s visual dysfunction and post-traumatic headaches. The plaintiff also treated with an optometrist who testified that plaintiff was suffering from convergence insufficiency consistent with a brain injury. The defense expert testified at his deposition that he did not believe plaintiff suffered any significant brain injury in the subject motor vehicle collision. The jury ultimately determined that the plaintiff suffered a serious impairment of body function and awarded the plaintiff $100,000 in noneconomic damages. Following the jury trial, the trial court denied the defendant’s motion for a directed verdict and judgment notwithstanding the verdict on the issue of whether the plaintiff failed to present sufficient evidence that she sustained an objective manifestation of injury for purposes of satisfying the serious impairment of body function standard under MCL 500.3135(2)(a).
On appeal, the Court of Appeals determined the trial court properly denied defendant’s motion for directed verdict and judgment notwithstanding the verdict on the issue of serious impairment of body function. The court explained that under the Michigan Supreme Court’s decision in McCormick v Carrier, 487 Mich 180 (2010), a plaintiff must not necessarily prove an objectively manifested injury to proceed on a claim for noneconomic damages under MCL 500.3135(2)(a). Rather, as the Supreme Court recognized in McCormick, the statute requires that the plaintiff suffer an objectively manifested impairment, which is commonly understood as one observable or perceivable from actual symptoms or conditions. In applying these standards to this case, the court reasoned that the plaintiff’s symptoms of memory loss, confusion, difficulty concentrating, double-vision, post-traumatic headaches, etc., constituted objectively manifested impairments that, as explained by the plaintiff’s doctors who testified at trial, were perceivable from her actual symptoms and conditions, even though her brain injury was not perceived by the CT scan at the hospital. In this regard, the Court of Appeals stated in pertinent part:
“Here, the physical basis for Cetrone’s complaints of pain and suffering was her brain injury. Cetrone’s actual symptoms and conditions included memory loss, confusion, difficulty concentrating, and doubled vision. Dr. Cook testified that Cetrone was cognitively impaired, and attributed her impairments to the automobile accident causing a brain injury. Dr. Pareigis testified Cetrone suffered from visual dysfunction and posttraumatic headaches, which she attributed to a brain injury related to the accident. Dr. Fortenbacher testified that Cetrone was suffering from doubled vision. Dr. Fortenbacher testified that, because Cetrone’s eyes were physically normal, he attributed Cetrone’s doubled vision to a brain injury instead of an eye injury. Cetrone testified that her injury interfered with her ability to work, do household chores, and participate in hobbies.
Thus, viewing the evidence in the light most favorable to Cetrone, Cetrone’s impairments were objectively manifested because they were perceivable from her actual symptoms and conditions, even though her injury was not perceived by the CT scan at the hospital. We conclude that the trial court did not err when it concluded that Cetrone presented sufficient evidence that she suffered a serious impairment of a bodily function.”
The court further rejected the defendant’s argument that the trial court abused its discretion in awarding case evaluation sanctions to plaintiff based on an hourly rate of $400. The court upheld the trial court’s decision, based upon the factors set forth by the Michigan Supreme Court’s decision in Smith v Khouri, 481 Mich 519 (2008).
The court also decided a number of evidentiary issues under the Michigan Rules of Evidence for beyond the scope of the issues covered on autonofaultlaw.com/digital-library.
