Michigan Court of Appeals; Docket #308685 and #311857; Unpublished
Judges Sawyer, O’Connell, and K.F. Kelly; Unanimous; Per Curiam;
Official Michigan Reporter Citation: Not applicable; Link to Opinion 
STATUTORY INDEXING:
Not applicable
TOPICAL INDEXING:
Motor Vehicle Code (Failure to Use Seat Belt) [MCL 257.710e]
Discovery in Auto Liability Cases
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, the Michigan Court of Appeals vacated the trial court Orders precluding the admissibility of evidence of plaintiff’s failure to use a seat belt and granting discovery of the personal financial documents of the physicians performing independent medical examinations for defendants.
In this third-party auto liability case, the plaintiff was not wearing his seat belt at the time of the subject motor vehicle collision. Therefore, under MCL 257.710e, the plaintiff agreed to stipulate to the 5% reduction on his damages for his failure to wear his seat belt at the time of the collision. Despite the plaintiff’s stipulation on the reduction of damages, the defendant sought to admit expert testimony that the plaintiff’s injuries would not have been so severe if he was wearing a seat belt. Therefore, plaintiff filed a motion in limine to keep out this evidence. The trial court granted the plaintiff’s motion.
The Court of Appeals determined that pursuant to MCL 257.710e and the Supreme Court’s decision in Mann v St. Clair Co Rd Comm, 470 Mich 347 (2004), it was technically incorrect for the trial court to deny the admissibility of the expert testimony regarding the relationship between the plaintiff’s injuries and his failure to use his seat belt. In this regard, the court noted that under the Supreme Court’s decision in Mann, the expert testimony would be admissible, because it related to damages arising out of the ownership, maintenance, or operation of a motor vehicle, as contemplated by MCL 257.710e. However, the Court of Appeals determined that because the plaintiff stipulated to the reduction of his damages, the trial court’s denial of the expert testimony was immaterial. The court further rejected the Defendant’s claims that there was a basis to admit the evidence for purpose of proving the plaintiff’s comparative negligence beyond the 5 percent reduction of damages under MCL 257.710e. In this regard, the court stated in pertinent part:
“Premised on the statutory language and the ruling in Mann, we assume that the trial court technically erred in precluding the admissibility of evidence regarding plaintiff’s failure to wear a seat belt. MCL 257.710e(7); Mann, 470 Mich at 352. But, there is no need to reverse because plaintiff offered to stipulate to the application of the full five percent statutory cap on damages. Therefore, there is neither harm nor benefit to defendants in the presentation of testimony from their proffered expert opining that the injuries plaintiff sustained would not have been as severe had she been wearing a seat belt at the time of the accident as the amount of reduction for any damages determined is statutorily limited. Further, defendants’ assertion that plaintiff’s failure to wear a seat belt should be admitted as evidence of her comparative negligence under the common law is unavailing. The provision in the Detroit Police Department manual does not alter the character of this action or remove it from the governance of the no fault act. “The gravamen of an action is determined by reading the claim as a whole.” Simmons v Apex Drug Stores, Inc, 201 Mich App 250, 253; 506 NW2d 562 (1993). Plaintiff sustained injuries while a passenger in a motor vehicle that was involved in a collision with another vehicle. Other than failing to use her seat belt, defendants allege no other act of negligence on the part of plaintiff. The action falls squarely within the rubric of the no-fault act, which in turn necessitates the application of MCL 257.710e(7) because “the safety belt statute’s cap on the reduction of damages is applicable only to tort actions brought under the no-fault act.” Mann, 470 Mich at 352.”
The Court of Appeals also reviewed the trial court’s Order granting discovery to plaintiff of the financial and ownership documentation pertaining to the physicians defendant hired to evaluate the plaintiff. Specifically, the trial court permitted the disclosure of income and financial information involving the physicians, which was not restricted solely to the examinations performed on plaintiff and included the gross income the physicians received from conducting medical examinations.
Ultimately, the Court of Appeals reversed the trial court’s Order. The Court of Appeals reasoned that it was permissible for the plaintiff to obtain information regarding the extent of physicians’ practices in performing examinations and the amount of compensation they receive for doing so. However, the Court of Appeals reasoned there were alternative means that the plaintiff could have used rather than subpoenaing the detailed financial information at issue. Namely, the court reasoned that the plaintiff could depose the physicians and ask them questions about the extent of their practices in performing examinations and the amount of compensation they receive for those examinations. The Court of Appeals based its decision on various Michigan Court Rules regarding discovery, including MCR 2.302(B), which involves discovery of documents from a non-party to the litigation. The Court stated in pertinent part:
“In this instance, plaintiff has failed to demonstrate that alternative means, such as deposing defendants’ experts, would not permit her “to obtain the substantial equivalent of the materials” or that the use of depositions would constitute an “undue hardship” to her. Certainly, at deposition the physicians could be asked questions regarding their relationship with Exam Works, the extent of their practices in performing this type of defense work and the amount of compensation received to demonstrate potential bias. It is unnecessary to obtain their detailed financial records for this purpose.”
