Michigan Court of Appeals; Docket No. 308642; Unpublished
Judges Borrello, K.F. Kelly, and Murray; Unanimous; Per Curiam
Official Michigan Reporter citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 - Present) [§3135(5)**]
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(5)**]
Determining Serious Impairment of Body Function As a Matter of Law (McCormick Era: 2010 – present) [§3135(2)]
Aggravation of Preexisting Conditions [§3105(1)]
Closed Head Injury Question of Fact [§3135(2)(a)(ii)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion regarding plaintiff’s claims for noneconomic loss, the court held as a matter of law that the plaintiff could not establish that she suffered a serious impairment of body function, because she failed to establish that her injuries were the result of the accident, and she further “failed to establish a basis for concluding that her alleged injuries affected her ability to lead her normal life.” The court further held that expert affidavits submitted by plaintiff were insufficient to create a question of fact regarding whether she suffered a closed-head injury.
The Plaintiff in this case, Brittany, was involved in an accident with a City of Dearborn police officer. She argued that as a result of the accident, she "suffered from psychological injuries, a closed head injury, and an exacerbation of her seizure disorder, resulting in the inability to go to school or work."
With regard to the issue of serious impairment, the court first held that plaintiff failed to establish a basis for concluding that here alleged injuries were the result of the accident. In this regard, the court held, "Many, if not all, of Brittany’s problems predated the accident. As evidenced by her medical records, Brittany was treated for both physical and psychological problems. She personally witnessed her boyfriend’s overdose and, as a result, suffered from post-traumatic stress, anxiety, and depression. Brittany also had anger issues that predated the accident. She told counselors that her father was abusive. She also clearly had problems with school, as indicated by her poor performance for the first three years of high school. Although Brittany enjoyed martial arts, she had a pre-existing back injury that limited her ability to enjoy the activity. Brittany also fell down the stairs, injuring her back and neck. Again, the injury predated the accident."
After further noting that the plaintiff had a history of "physical and psychological problems," the Court held that she also failed to establish a basis for concluding that her alleged injuries affected her ability to lead her normal life. Quoting McCormick, the Court explained that "the determination of the effect or influence that the impairment has had on a plaintiff’s ability to lead a normal life necessarily requires a comparison of the plaintiff’s life before and after the accident." The Court then noted that “there is absolutely no record evidence that Brittany’s life is any different after the accident. She did not work before the accident and continued to be unemployed after. She continued to attend school. Brittany admitted that she could not drive before the accident because of her seizure disorder. It was the seizure disorder that impacted Brittany’s ability to engage in many of the activities of life. In comparing her life before and after the accident, Brittany failed to establish an effect upon her ability to lead a normal life.”
With regard to plaintiff’s alleged close head injury, the Court held that expert affidavits supporting a contrary conclusion were insufficient to create a question of fact regarding plaintiff's alleged injuries. In this regard, the court explained, "Brittany has submitted evidence from two different experts in support of her claim that she continues to suffer from a closed head injury, but the experts’opinions are problematic. For example, Dr. Gerald A. Shiener included a comment that Brittany 'continues to experience neck pain and she ‘just found out’ that she may be suffering from seizures.' Brittany was fully aware of the fact that she had a seizure disorder that predated the accident. Dr. Shiener also notes that '[a] careful review of her psychosocial history reveals that she was functioning well without impairment prior to this accident.' However, Brittany had been previously diagnosed with post traumatic stress disorder, anxiety, and depression, which she was treating with a variety of prescription drugs and counseling. Thus, Dr. Shiener’s opinion does not appear to be based on Brittany’s actual medical or mental health history."
