Judges O'Connell, Markey, and Murray; unanimous; per curiam;
Official Michigan Reporter Citation: Not applicable; Link to Opinion: 
STATUTORY INDEXING:
Determining Serious Impairment of Body Function as a Matter of Law (McCormick Era: 2010-present) [§3135(2)]
Important Body Function Element of Serious Impairment (McCormick Era: 2010-present) [§3135(5)]
General Ability/Normal Life Element of Serious Impairment (McCormick Era: 2010-present [§3135(5)]
Evidentiary Issues [§3135]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion dealing with plaintiff's tort claim of serious impairment of body function, the Court of Appeals affirmed the trial court's ruling that, as a matter of law, plaintiff had failed to produce sufficient evidence demonstrating that her injuries were "objectively manifested" as required by §3135(5) of the No-Fault Act. The plaintiff in this case claimed that she sustained injuries in a 2012 motor vehicle accident that aggravated injuries she had sustained in an earlier 2010 accident. The injuries plaintiff allegedly sustained were not clearly described in the Court's Opinion, but were characterized by plaintiff in an affidavit as impairments of her "brain, my arms and legs, my ability to think and function."
Although the parties disagreed that there was a question of fact as to whether plaintiff sustained injuries in the second accident, the Court's Opinion noted that "Nevertheless, the parties agreed that the trial court could determine, as matter of law, whether plaintiff sustained a threshold injury. The trial court implicitly and explicitly determined that any factual dispute in the case was not 'material to the determination whether the person has suffered a serious impairment of body function. . . .' MCL 500.315(2)(1)(ii)." Therefore, the trial court properly determined the objective manifestation issue as a question of law.
Ultimately, the trial court ruled that plaintiff had failed to show that her injuries were objectively manifested as required by the Supreme Court's Opinion in McCormick v Carrier. In reaching this conclusion, the Court made the following rulings:
(1) The Court held that plaintiff's personal and subjective assessments set forth in her affidavit were inadequate to prove this element of the threshold. Specifically, the Court stated, "A plaintiff must introduce evidence demonstrating a physical basis for subjective complaints of pain and suffering, which generally will require medical testimony. Consequently, plaintiff's subjective assessment that her headaches were worse after the second accident does not establish an 'objectively manifested impairment' as clarified by our Supreme Court in McCormick, 487 Mich at 195-198."
(2) The Court held that plaintiff's affidavit stating what her physicians told her about her injuries was also inadequate to prove the objective manifestation requirement. In this regard, the Court stated, "[P]laintiff says, 'My doctors have stated that the accident on November 4, 2014 [sic-2012] had worsened and exacerbated my symptoms and problems and that was readily apparent following this crash.' A party's 'representations in [an] affidavit regarding another person's observations do not establish a factual question because they are inadmissible hearsay. . . . Plaintiff's affidavit did not present admissible evidence of 'actual symptoms or conditions that someone other than the injured person would observe or perceive as impairing a body function.' McCormick, 487 Mich at 196."
(3) The Court held that the unsworn "to whom it may concern" letters of plaintiff's two physicians were hearsay and, therefore, were not sufficient to create a question of fact regarding the objective manifestation issue. In this regard, the Court stated, "As stated in Liparoto Constr Inc v Gen Shale Brick, Inc, (citation omitted), 'unsworn statements . . . are not sufficient to create a genuine issue of material fact to oppose summary disposition under MCR 2.116(C)(10).' . . . Hearsay is generally not enough to defeat a properly supported motion for summary disposition under MCR 2.116(C)(10). '[A]n adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial.' MCR 2.116(G)(4)."
(4) The Court held that the letters from plaintiff's physicians were not admissible under the hearsay exception contained in MRE 803(4) which creates an exception for "statements made for purposes of medical treatment or medical diagnosis in connection with treatment." The Court held that this hearsay exception did not apply because, "Here, the doctors' letters are not statements of a person seeking treatment and are not reasonably necessary to the diagnosis and treatment of plaintiff. As such, the doctors' letters are not admissible under MRE 803(4)."
(5) The Court held that the letters from plaintiff's physicians were also not admissible under the hearsay exception contained in MRE 803(6) which creates a business record exception for records "kept in the course of a regularly conducted business activity." In ruling that this exception to the hearsay rule did not apply to the letters from plaintiff's physicians, the Court stated, "the letter reports of the doctors were not contemporaneously recorded documentation kept in the regular course of business but rather reports prepared for purposes of litigation. 'In general, a record "prepared for the purpose of litigation" lacks the trustworthiness that is the hallmark of a document properly admitted pursuant to MRE 803(6).' Huyser, 221 Mich App at 297. . . ."
(6) The Court also ruled that the letters from plaintiff's physicians were not admissible hearsay under the "general trustworthiness" hearsay exception set forth in MRE 803(24). In this regard, the Court held, "For the same reasons, the doctors' letters do not have 'equivalent circumstantial guarantees of trustworthiness' to permit their admission in evidence under the catch-all hearsay exception. See MRE 803(24). . . ."
(7) The Court ruled that the letters from plaintiff's physicians were also not admissible under the "documentary evidence" provisions of MCR 2.116(G)(6) which permits "documentary evidence offered in support of or in opposition to a motion based on [MCR 2.116(C)(10)] . . . to the extent that the content or substance would be admissible as evidence." In ruling that the doctors' letters did not satisfy this Court Rule, the Court stated:
"To be admissible, the opinion of a qualified expert must be 'based on sufficient facts or data,' MRE 702, and the 'facts or data in the particular case upon which an expert bases an opinion or inference shall be in evidence.' MRE 703. Here, the doctors' letters do not contain any facts that could establish an 'objectively manifested' impairment, i.e., testimony of 'actual symptoms or conditions that someone other than the injured person would observe or perceive as impairing a body function.' McCormick, 487 Mich at 196. The letters do not even contain a promise that the doctors could testify to a physical basis for plaintiff's subjective complaints of pain as result of the second accident. . . . And, a mere promise is insufficient to create a material question of fact in opposition to a properly supported motion for summary disposition."
For all of the foregoing reasons, the Court held that plaintiff had offered insufficient proof to satisfy the objective manifestation requirement of the statutory definition of serious impairment of body function.
