Michigan Court of Appeals; Docket #324534; Unpublished
Judges K.F. Kelly, Fort Hood, and Borrello; unanimous; per curiam;
Official Michigan Reporter Citation: Not applicable; Link to Opinion: 
STATUTORY INDEXING:
Work Loss Benefits: Nature of the Benefit [§3107(1)(b)]
Determining Serious Impairment of Body Function as a Matter of Law (McCormick Era: 2010-present) [§3135(2)]
Closed Head Injury Question of Fact [§3135(2)(a)(ii)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, the Court of Appeals affirmed the trial court's dismissal of plaintiff's third-party tort claim and plaintiff's first-party PIP benefit claim.
Plaintiff's tort claim alleged he had sustained a closed-head injury as a result of the subject motor vehicle accident which constituted serious impairment of body function within the meaning of §3135(5) of the No-Fault Act. The Court of Appeals affirmed the trial court's grant of summary disposition on this claim because plaintiff had failed to produce sufficient evidence creating a question of fact regarding his closed-head injury claim. Plaintiff attempted to create such a question of fact by utilizing the "closed-head injury exception" provision of §3135(2)(a)(ii), which states that a question of fact exists in a closed-head injury case, "if a licensed allopathic or osteopathic physician who regularly diagnoses or treats closed-head injuries testifies under oath that there may be a serious neurological injury." In an attempt to satisfy this closed-head injury exception, plaintiff offered the report of Jennifer Zoltowski, M.S. Defendant objected to Ms. Zoltowski's report, asserting that her credentials were insufficient to establish the requisite level of expertise required by the closed-head injury provision. In addition to Ms. Zoltowski's report, plaintiff's orthopedic surgeon, Dr. James Beale, had made reference in his medical notes that plaintiff had a "closed head injury diagnosis related to the motor vehicle accident." However, Dr. Beale was never deposed, nor was any affidavit obtained from Dr. Beale regarding this diagnosis, and no evidentiary hearing was ever conducted to verify Dr. Beale's qualifications to render the diagnosis asserted and the extent of the injury claimed. In ruling that the plaintiff had failed to satisfy the closed-head injury exception provision of §3135(2)(a)(ii), the Court stated:
"It is notable that Zoltowski opined that a more thorough neuropsychological assessment was necessary and that other factors, such as plaintiff's abuse of prescribed medications, could be impairing his abilities; the report did suggest impairments in functioning by plaintiff but did not definitively attribute those impairments to his motor vehicle accident other than through the self-report of plaintiff. Although a doctoral level psychologist did not co-sign Zoltowski's report, it was copied to such a credentialed clinician suggesting or implying a level of supervision.
Despite numerous opportunities, plaintiff failed to present a witness, with the requisite qualifications, to establish both the causation requirement for his claims and the threshold severity of the claimed injury. Beale's report provided a diagnosis of 'closed head injury' but did not address severity or definitively establish causation to plaintiff's motor vehicle accident. To overcome these deficiencies, plaintiff repeatedly attempted, belatedly in the litigation, to name additional expert witnesses, including Bradley Sewick, Ph.D. and Dr. Shyam Rao. The trial court foreclosed the presentation of these witnesses citing the prolonged period between the close of discovery and plaintiff's attempt to include these witnesses and, at least initially, the lack of any documentation or affidavit regarding their proposed testimony."
The Court also recognized that under the decision in Churchman v Rickerson, 240 Mich App 223 (2000), the closed-head injury exception provision in of §3135(2)(a)(ii) is not the only way a plaintiff can create a question of fact in closed-head injury cases regarding the serious impairment threshold issue. Such a question can be created if the medical evidence otherwise demonstrates that a jury submissible issue on this threshold claim exists. However, in this case, the Court ruled that the plaintiff simply had not produced any medical witnesses that could testify as to this issue. In this regard, the Court noted, "Plaintiff was given multiple opportunities by the trial court to obtain the records of physicians and to amend his witness list. Plaintiff did not take advantage of the trial court's favorable rulings by failing to submit amended witness lists within the time constraints provided by the trial court. . . . Accordingly, the trial court did not abuse its discretion in denying plaintiff's request to add the proffered witnesses." Accordingly, plaintiff's tort claim alleging serious impairment of body function was properly dismissed.
The Court of Appeals also held that the trial court properly dismissed plaintiff's claims for no-fault PIP benefits. Specifically, the Court dismissed plaintiff's claim for attendant care under §3107(1)(a) because plaintiff admitted to the trial court that the claim was unsustainable and did not present any evidence on appeal to support his claim of error. In this regard, the Court noted, "Plaintiff acknowledged at the July 7, 2014 pretrial conference that he could not reasonably argue the attendant care costs asserted." Accordingly, the Court of Appeals held that plaintiff's attendant care claim was waived and abandoned.
The Court of Appeals also affirmed the trial court's dismissal of plaintiff's PIP benefit claim for wage loss under the provisions of §3107(1)(b). The Court held that plaintiff's claim was properly dismissed because plaintiff failed to satisfy his burden of proof of showing an actual loss of earnings. In this regard, the Court held:
"Plaintiff failed to produce evidence of wage loss. Plaintiff provided a partial income tax return for a period two to three years before the accident occurred. The remainder of plaintiff's documentation of wage loss comprised various bank accounts, invoices and registers evidencing unidentified deposits and withdrawals pertaining to his businesses, but failing to clarify, in any manner, figures from which his work loss could be calculated or determine. . . . In accordance with case law, specific proof is necessary to demonstrate how much money a person would have made to be eligible for work loss damages. . . . Plaintiff's submission of documentation lacked specificity and proof of its relationship to plaintiff's actual work loss. His claim of work loss damages was properly excluded by the trial court as being too speculative for submission to a jury for consideration."
Plaintiff's offer to introduce the expert witness testimony of financial experts on his wage claim came too late and was properly refused. In this regard, the Court stated, "Plaintiff was made keenly aware by the trial court of the need to timely identify his witnesses and given the opportunity to supplement the documents to support his claims, but failed to do so on repeated occasions."
Finally, the Court also held that the trial court properly dismissed plaintiff's PIP benefit claim for medical expenses under §3107(1)(a). This dismissal was proper under the doctrine of res judicata because the medical providers who rendered these services had filed their own separate lawsuit for the same charges sought by plaintiff and the providers' separate lawsuit was dismissed because the providers failed to comply with court ordered discovery. In this regard, the Court held:
"The requirements for the imposition of res judicata were established. . . . [T]he dismissal of the action constituted a decision on the merits for purposes of res judicata. MCR 2.504(B)(3). . . . Because the same issue was presented in both lawsuits and arose out of the same facts, it could have been resolved in the litigation initiated by the service providers. . . . The interests of plaintiff [and the service providers] were aligned in seeking to procure reimbursement for the services rendered. The outcome of the litigation initiated by the services providers encompassed the interests of plaintiff in procuring the payment of the benefits, thus demonstrating the existence of the requisite 'functional relationship' for the invocation of res judicata."
For all of the foregoing reasons, plaintiff's claim for no-fault first-party benefits was properly dismissed by the trial court.
