U.S. District Court for the Western District of Michigan; Docket # 1:13-cv-00693-PJG
Judge Phillip Green
Official Michigan Reporter Citation: Not Applicable; Opinion not Available 
STATUTORY INDEXING:
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 - Present) [§3135(5)]
Evidentiary Issues [§3135]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this federal District Court Opinion, Judge Green held that plaintiff, a 13-year-old boy who was injured while riding a bicycle, did not satisfy the objective manifestation element of MCL 500.3135 to warrant non-economic damages because the only evidence offered to meet this element was his subjective complaints of pain.
The plaintiff in this case was a 13-year-old boy who was involved in an accident with a postal truck while riding a bicycle. During the accident, the plaintiff sustained various skin injuries requiring treatment and resulting in scarring to his chest. Following the accident, the plaintiff was taken to the hospital and was treated for "a sprained finger and scrapes on his arm and chest." The emergency department described plaintiff's chest injury as a "'contusion' that did not require hospitalization." The contusion healed a month later into “a 2 x 3 x 3 mm raised scar tissue without evidence of surrounding cellulitis or drainage.” A surgical specialist later opined that the scars represented a "keloid formation" and advised plaintiff's mother to apply "cocoa butter or one of the over-the-counter scar creams to possibly decrease the symptoms and aid in healing." The scars developed into two scars in the middle of plaintiff’s chest, and several months later an "excisional biopsy was performed." Plaintiff reported that "the surgical procedure was painful, but once the skin healed over there was simply a 'little discomfort' and itchiness." Eight months after the surgical procedure, plaintiff sought treatment from a certified physician's assistant who practiced in the area of dermatology, to reduce the appearance of the chest scars. He received "Kenalog injections — a steroid injected intralesionally to flatten and soften a scar — a number of times." Plaintiff found the use of the needle in the Kenalog injections painful. The Court noted that "[e]ach time, he experienced one to five pokes of the needle, with three being the average."
Judge Green held as a matter of law that plaintiff could not satisfy the objective manifestation element because the only evidence offered to meet this element was subjective complaints of pain. In this regard, it was noted that plaintiff’s medical providers placed no restrictions on his activities of daily living. In this regard, the judge said all that remained was plaintiff’s “subjective claims of pain and suffering, which, as a matter of law, does not meet the threshold of an objectively manifested impairment."
To satisfy the general ability element, plaintiff argued that as a result of his scarring, he was unable to participate in gym class, or the school's football team. However, Judge Green rejected this argument and held as a matter of law that plaintiff did not satisfy the general ability element. In so holding, the judge reasoned:
"Plaintiff's assertions regarding his ability to lead a normal life also fail. Plaintiff's claim that he was unable to participate in gym class or the school's football team as a result of the scars on his chest is speculative. He simply asserts that he did not try to engage in these activities because throwing a ball and lifting things 'would pull on the scar.' Plaintiff's mother cited two reasons for plaintiff not wanting to play sports: self-consciousness over his scars and a fear of being hit in the chest. Plaintiff offers no evidence that he was unable to engage in these activities. To the contrary, he did engage in athletic activities following his accident, including swimming, running track, and competing in shot-put."
Judge Green further found it significant that plaintiff did not claim he was unable to lift or bend, but rather that he experienced “some temporary pain following [the] Kenalog injections.” In this regard, the judge said:
“Plaintiff acknowledged that he experiences no restrictions in his life as a result of the accident, and he conceded that the only change the scars have made to his lifestyle is that he now feels the need to wear clothing to cover them."
In conclusion, Judge Green said:
“There is nothing in the legislative history of Michigan's no-fault insurance act, nor in the case law interpreting it, to suggest that plaintiff's perceived need to wear a shirt constitutes a sufficient change in his 'normal life' to warrant the award of non-economic damages.”
