Michigan Court of Appeals; Docket No. 61436; Published
Judges Brennan, Gribbs, and Hoehn; Unanimous; Per Curiam
Official Michigan Reporter Citation: 131 Mich App 403; Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (Cassidy Era – 1983-1986) [§3135(1)]
Objective Manifestation Element of Serious Impairment (Cassidy Era – 1983-1986) [§3135(1)]
Important Body Function Element of Serious Impairment (DiFranco Era – 1987-1995) [§3135(1)]
Determining Serious Impairment of Body Function as a Matter of Law (Cassidy Era – 1983-1986) [§3135(1)]
Determining Permanent Serious Disfigurement as a Matter of Law [§3135(1)(2)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
This unanimous per curiam Opinion is the fourth appellate decision regarding the tort threshold since the Supreme Court's opinion in Cassidy v McGovern (item number 415).
Plaintiffs Abraham and Hattie Williams sued Defendant Payne in tort under §3135 for noneconomic losses sustained as a result of auto accident injuries. Mrs. Williams alleged serious impairment of body function. Mr. Williams alleged, serious impairment of body function as well as permanent serious disfigurement. The general character of Mrs. Williams' injuries was not seriously disputed. Her sole claim at trial was an injury to the base of her right thumb which did not involve a fracture. With respect to her injuries, the appellate court stated "no other medical abnormalities were found." Mrs. Williams testified that she experienced pain which radiated through her wrist and into her arm and which made it difficult to perform certain household duties. However, she testified that there were no specific tasks that she could not do. Her injury was variously diagnosed as a "sprained ligament and as tendinitis."
Mr. Williams also complained of "soft tissue injuries" which involved his left shoulder, back and legs. He complained of pain but similarly "no medical abnormalities were found." One doctor found "a slight limitation of movement in the shoulder" and another doctor testified that there was "limited movement of the hips and neck." Mr. Williams testified he was transferred to another job because of problems with his left hand. Mr. Williams also sustained a cut to his forehead requiring 11 or 12 stitches which left a scar which was apparently not visible to the jury from 15 feet but was visible at closer distances. There were some scars on both legs which had significantly healed but which were still partially visible.
The Court of Appeals held that Mrs. Williams' injuries did not constitute a serious impairment of body function because they "did not seriously impair any important body function." Although viewing Mr. Williams' case as "much closer than his wife's," the Court also concluded that he too did not sustain serious impairment of body function.
There are four important points of interest regarding this holding.
First, the Court held that Cassidy v McGovern requires that there be "objectively manifested injuries." The Court stated that "Mrs. Williams' soft tissue injuries were not suspect to medical measurement. Thus, they are not "objectively manifested in a scientific or medical context. The symptoms of her injuries, however, have found objective manifestation: pain makes certain activities difficult. The Cassidy opinion did not expressly designate which standard of manifestation to employ, objective medical measurements of injury or a patient's complaints of pain substantiated only by the patient's
limited activities. . . .Medically unsubstantiated pain will always be present in a tort action for pain and
suffering. The legislature could not intend so low a threshold for avoiding the no-fault act's proscription against tort actions. General pain and suffering is not sufficient to meet the threshold." The Court also stated that Mr. Williams' injuries were not objectively manifested. The opinion stated, "while his injuries no doubt impaired his ability to work, x-ray results were negative and no neurological disorder was found."
Second, in its discussion regarding the objective manifestation requirement, the Court cryptically made a very significant observation in footnote number 4. With no further explanation the Court stated therein, "on the use of thermogram to measure muscular injuries or spasms, see Deshotel v Avondale Shipyards, Inc, 413 So 2d 208 (La App, 1982)." The Deshotel opinion is a Louisiana appellate court decision which affirmed a trial court's ruling upholding the admissibility of thermogram and thermographic testimony. The Deshotel opinion states,"... the trial court was impressed with the testimony of Dr. Morris concerning the use of thermography and its advantages over the EMG's and x-rays used by the other doctors ... the trial court was convinced that the information gathered by the use of thermography was reliable and it accurately indicated the condition of [plaintiff]."
Third, the Court held that the rule in Cassidy v McGovern extended to threshold claims of "permanent serious disfigurement" As a result, such issues were questions of law for the court and not the jury. The language used by the Court in reaching this" conclusion could arguably be read as suggesting that permanent serious disfigurement questions are never for the jury. At one passage, the Court stated, "although the trial court indicated that the scar on Mr. Williams' head was the type of injury intended by §3135, the issue was sent to the jury. We do not know whether the jury's general verdict of no cause was due to a failure of proofs of proximate cause or the jury' s disbelief that the scars constituted "permanent serious disfigurement" — an issue the jury is not to decide under Cassidy. Accordingly, we must vacate the judgment relating to Mr. Williams' claim of permanent serious disfigurement and remand for a new trial consistent with the Cassidy opinion." In handling permanent serious disfigurement issues in the future, trial courts were instructed by this opinion to "make adequate legal findings on the record" and to "describe the injuries and reach a legal conclusion on whether they meet the threshold." In a footnote, the use of photographs as part of the record was encouraged. The Court also stated that an appellate court "will review the trial court's determination, reversing only when the trial court has abused its discretion"
Fourth, in its concluding paragraphs, the opinion declares the no-fault third-party special verdict form (SJI 2d 67.02) "an improper instruction on our facts under Cassidy because it treats the serious impairment/permanent disfigurement issue as a jury question." However, the Court goes on to point out that jury determination of the threshold pursuant to the special verdict form is appropriate when there is a material factual dispute as to nature and extent o/the plaintiffs injuries. To mis effect, the Court states, "the instruction is proper, however, in cases where a factual dispute exists regarding the nature and extent of plaintiff’s injuries and such dispute is material to the determination of serious impairment of body function." In footnote 8, the Court characterized the mandate in Cassidy as "limited" And applying only when there is no material factual dispute as to nature and extent of injury. In this footnote, the Court further states, "thus, whether or not the dispute is material to the determination is a question for the court Upon such finding SJI 2d 67.02 appears to be an appropriate instruction."
[Author's Comment: It should be noted that point number four discussed above was actually rewritten by the Court of Appeals after the initial opinion draft was released. The draft of the initial opinion suggested that SJI 2d 67.01 was an improper instruction under all circumstances because it submitted the threshold issue to the jury. This notion has been specifically repudiated by the final draft of the opinion. The change is significant because the case now becomes consistent with previous Court of Appeals decisions in Lahousse v Hess, item number 641; McDonald v Oberlin, item number 660; and, Autry v Allstate, item number 687 which all characterize the Cassidy rule as being limited to those situations where there is no material factual dispute as to nature and extent of injury.
In the same respect, it is respectfully submitted that if the Williams opinion stands for the proposition that threshold claims alleging permanent serious disfigurement are never for the jury, it is a deviation from Cassidy and the other previously mentioned Court of Appeals decisions.
Finally, the Court's interpretation of the "objective manifestation" requirement does not appear to have been followed by the subsequent threshold decision in Braden v Lee which is summarized in item number 725 below.]
