Michigan Court of Appeals; Docket #277096; Unpublished
Judges Servitto, Donofrio, and Fort Hood; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Allowable Expenses: Reasonable Necessity Requirement [3107(1)(a)]
TOPICAL INDEXING:
Collateral Source Rule
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals upheld a $2.5 million jury verdict for the plaintiff in this action for personal injury protection benefits, finding that the trial court properly excluded evidence that plaintiff’s medical treatment was paid by her health care provider.
The plaintiff in this case struck her head on a car window in a motor vehicle accident that occurred in December 1999. In August 2000, she began receiving multiple facial injections twice each week for pain from Dr. Maurice Converse. Defendant State Farm initially covered the treatments under a non-coordinated no-fault policy, but discontinued paying in January 2002, finding that the treatments were not reasonable or necessary as required by §3107(1)(a), and that the facial pain was related to an underlying medical condition.
Plaintiff sued for payment of her first-party benefits in February 2003, and a jury found for plaintiff in March 2006. Plaintiff continued to receive the injections over the four-year period and, by the time of trial, had incurred over $2 million in medical expenses for the treatment. The jury awarded plaintiff approximately $2.5 million and the trial court entered judgment on the verdict.
In affirming, the Court of Appeals determined that the trial court properly excluded evidence that plaintiff’s treatment had been paid by Blue Cross. Defendant argued that the evidence was admissible under Nasser v Auto Club Insurance Association, 435 Mich 33; 457 NW2d 637 (1990), to show that plaintiff continued to receive treatments merely in order to receive payment from defendant for the treatment. In Nasser, the Michigan Supreme Court held that, “In general, the collateral source rule bars evidence of insurance coverage when the evidence is present to show mitigation of damages. . . . However, an exception exists where defendant seeks to prove that an injured plaintiff is malingering or that insurance payments are the plaintiff’s motivation to not work.” In order for these exceptions to apply, the court noted that the defendant must present sufficient facts which raise serious doubts in the minds of the jurors regarding the extent of the injury. In rejecting defendant’s argument, the Court of Appeals noted that defendant only presented evidence that medical professionals disagreed on the effectiveness of the treatment plaintiff received. However, it failed to present other evidence that the plaintiff was malingering and, therefore, evidence of the collateral payments was properly excluded. Moreover, the court noted that defense counsel admitted it had no independent evidence regarding defendant’s claim that plaintiff was malingering. In this regard, the court stated:
“[N]asser is plain that defendant was required to present ‘other evidence’ to the trial court to indicate that plaintiff was malingering or that insurance payments are plaintiff’s motivation. . . . That medical professionals disagree on the appropriateness and effectiveness of plaintiff’s chosen treatment without more fails to fulfill the Nasser foundational requirement and thus cannot justify the admission of collateral source evidence at trial.
In any event, at the motion hearing, defendant’s counsel admitted during argument that defendant had no independent evidence to present regarding plaintiff’s alleged malingering or her motivation for treatment . . . .
Considering the dearth of independent or circumstantial evidence of malingering presented to the trial court by defendant, together with defense counsel’s concession at the hearing on the motion, we conclude that the trial court did not abuse its discretion when it held that defendant did not meet its foundational burden under Nasser and thus properly excluded evidence of plaintiff’s receipt of collateral source benefits at trial.”
