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Shepard v Carr; (COA-UNP, 7/9/1990; RB #1389)


Michigan Court of Appeals; Docket No. 105910; Unpublished  
Judges Maher, Holbrook, Jr., and Sawyer; Unanimous; Per Curiam 
Official Michigan Reporter Citation:  Not Applicable; Link to Opinion alt     

Evidentiary Issues [§3135] 
Trial Procedure Issues [§3135]

Evidentiary Issues    

In this unanimous per curiam Opinion, the Court of Appeals made several significant holdings regarding procedural matters in a third party tort case. These holdings included the following:

1. It was improper opening statement and closing argument for defense counsel to make references to the fact that plaintiff’s suit did not seek recovery for medical bills, lost wages, domestic services, etc. The court condemned this tactic by stating, "since medical bills, hospital bills and the like were not even at issue in this suit, they were clearly not a proper subject for argument. The danger of prejudice to plaintiff lies in the fact that the jury may have concluded that such damages were not claimed because plaintiff never suffered such damages, or the jury may have surmised that plaintiffs recovered these damages from a collateral source, an insurance company, and might therefore choose to reduce any recovery they would award to plaintiff accordingly. Whatever the jury may have surmised from these remarks, the fact remains the remarks were improper argument"

2. It was improper argument for the defense counsel to invite the jury to speculate as to the Legislature's intent in passing the no-fault tort threshold. In this regard, defense counsel suggested to the jury that the Legislature only intended to compensate those individuals who are hurt severely enough to be in a wheelchair for life or who become blind, etc. In condemning this argument the court stated, "we find such speculation as to the Legislature's intent to be improper argument as well. It was never the Legislature's intent to limit recovery of non-economic damages to only the catastrophically injured. While the serious impairment threshold is significant it is not an extraordinarily high obstacle to recovering such damages."

3. It was improper argument for the defense attorney to suggest to the jury that the defendants did not have adequate insurance coverage to pay for the damages. The defense attorney intimated this by comments such as: "These are real people. They are good people and they are average people so don't get carried away. Please don't get carried away." The court held this to be improper argument because it injected the question of insurance, or in this instance, the lack of it. In this regard, the court held: “We find it equally reversible to elude to the lack of insurance coverage in an attempt to thereby inflame the jury’s passions to keep the size of the verdict low. We hold that the impropriety of defense counsel’s argument and the trial court’s failure to respond to plaintiff’s timely objections thereto mandate reversal.”

It was error for the court, based upon a last minute admission of liability by the defendant, to preclude plaintiff from calling six listed witnesses who plaintiff contended could testify on the issue of serious impairment of body function, at least without giving plaintiff an opportunity to make an offer of proof with regard to the testimony that would have been forthcoming from these witnesses. In so holding, the court condemned the practice of eleventh hour admissions of liability that cause the other party to be taken by surprise. The court held that these matters should be discussed at the pretrial conference. In this regard, the court stated, "among the reasons for conducting a pretrial conference is the desire to simplify and narrow the issues in the case, as well as the desire to avoid traps and surprises at trial. It would seem that defendant's partial admission of liability, coming as it did without warning at the beginning of trial and forcing plaintiffs to drastically revise their trial approach, is precisely the type of surprise pretrial conferences are intended to guard against... From our review of the record, we conclude it was an abuse of the trial court's discretion to accept defendant's partial admission of liability and to deny plaintiffs the opportunity to create a special record to demonstrate the relevancy and admissibility of the testimony of the liability/damage witnesses."

The court held it was an abuse of discretion for the trial court to exclude the testimony of two damage’s witnesses and certain photographs on the grounds they were not exchanged as required by the pretrial summary and order. The photographs were police photographs that were listed on plaintiff’s exhibit list at pretrial and were equally within the purview of bom parties. In addition, the defendants were well aware of these photographs. In addition, the two damage witnesses were known and available to defendants for some two years since their identities were revealed at the time of plaintiff’s deposition. In finding an abuse of discretion, the court stated, "MCR 2.401 gives the trial court the authority to modify the pretrial conference summary at trial to prevent manifest injustice. The witnesses and photographic evidence did not surprise defendants at trial since defendants were well aware of the witnesses and the photographs. By excluding them, the trial court appeared to favor form over substance and in so doing was manifestly unjust to plaintiffs."

The court held that where plaintiff was disabled by a work-related back injury that was not related to the automobile accident, plaintiff suffered no actual loss of income for which an excess economic work loss claim could be pursued in tort. In essence, this was a claim for loss of earning capacity which is not recoverable. The court stated, "In Ouellette v Kenealy, 424 Mich 83 (1985), the court relied on its ruling in McDonald v State Farm and held that in a third-party tort action seeking economic work loss damages, only actual loss of income is recoverable. Damages are not recoverable for the loss of earning capacity… Plaintiff suffered no actual loss of income from work during the six months he was recovering from ankle surgery since he was concurrently disabled as a result of a work-related back injury."

The court held that the trial judge did not abuse his discretion in issuing a discovery order requiring plaintiff’s attorney to submit a record of past client referrals and payments made to one of plaintiff’s hired medical experts. In finding that such an order was not an abuse of discretion, the court stated: “We believe that the information concerning the number of referrals and payments made by plaintiff’s counsel to Dr. Newman was relevant in regards to any bias or prejudice that may have existed with Dr. Newman towards plaintiff’s counsel.”

Judge Sawyer concurred in the result only. 

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