Michigan Court of Appeals; Docket #274283; Unpublished
Judges Cooper, Murphy, and Neff; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion
In this unanimous unpublished per curiam opinion decided without oral argument, the Court of Appeals affirmed summary disposition for defendants, finding that the affidavit plaintiff’s counsel submitted in opposition to the motion for summary disposition was insufficient under MCR 2.116(H)(1)(b) because it did not state why plaintiff’s counsel believed the plaintiff’s expert would testify as asserted.
The plaintiff’s daughter was run over by a van that was backing up. The child was taken by ambulance to the hospital, where she was diagnosed with left pneumothorax, bilateral pulmonary contusions, and multiple abrasions. The child was discharged after two days. Defendant moved for summary disposition, arguing plaintiff failed to show that the child’s injuries were caused by the motor vehicle accident. In support of its motion, defendant provided evidence that the child had allergies, gastroesophageal reflux, and asthma which was attributed to second-hand smoke.
In affirming summary disposition for defendants, the Court of Appeals noted that defendants provided documentary evidence to support their motion which plaintiff failed to rebut. Although plaintiff’s counsel submitted an affidavit in which he asserted that the child’s doctor would provide an affidavit stating that the child’s injuries were related to the motor vehicle accident if he were ordered to do so by the court, this was insufficient. The Court of Appeals found that plaintiff’s counsel’s affidavit did not comply with MCR 2.116(H)(1)(b) because it did not state why plaintiff’s counsel believed the doctor would so testify. In this regard, the court stated:
“In support of their motion for summary disposition, defendants provided documentary evidence that Indago had allergies (apparently to bees), gastroesophageal reflux, and asthma, that Dr. Clos’s records attributed the asthma to Indago’s exposure to second-hand smoke in the household, and that Indago’s condition was exacerbated by the fact that she did not take her medication as directed. . . . Thereafter, plaintiff was required to demonstrate by documentary evidence that a genuine issue of fact existed for trial. . . . Plaintiff did not do so. . . . Plaintiff’s counsel submitted an affidavit in which he stated that Dr. Clos had thus far refused to provide an affidavit or deposition testimony. Counsel stated that he believed that if the trial court ordered Dr. Clos to testify by deposition, the physician would provide testimony that established that Indago’s asthma and gastroesophageal reflux problems were caused by the accident. . . . This affidavit did not comply with MCR 2.116(H)(1)(b) in that it did not state why counsel believed that Dr. Clos would testify as indicated. The trial court properly granted defendants’ motion.”