Michigan Court of Appeals; Docket #325435; Unpublished
Judges Boonstra, Wilder, and Meter; unanimous; per curiam;
Official Michigan Reporter Citation: Not applicable; Link to Opinion: 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (McCormick Era: 2010-present) [§3135(5)]
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)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion involving plaintiff’s tort claims for noneconomic loss and excess economic loss damages under §3135(1) and (3)(c), the Court of Appeals affirmed the trial court’s refusal to disturb a jury verdict that found against plaintiff on both claims. In the verdict, the jury found that plaintiff did not suffer economic loss that was caused by her injuries and that her injuries did not result in serious impairment of body function. In so finding, the jury agreed with the defendants’ contention that plaintiff had not met her burden of proving, by a preponderance of the evidence, that her auto accident was a cause in fact of her damages. Accordingly, the jury’s verdict was allowed to stand.
The plaintiff claimed she suffered back injuries in a motor vehicle collision that occurred in 2009. At the time of the 2009 accident, plaintiff was a sole practitioner attorney. Twenty years before, in 1989, plaintiff, while a college student, underwent spinal surgery for a lumbar scoliosis condition. Plaintiff claimed that she had no back problems after the 1989 surgery until she was involved in the 2009 motor vehicle collision. After sustaining, what appeared to be soft tissue back and spine injuries in the 2009 collision, plaintiff was diagnosed as having suffered a disorder of the lumbar spine which her doctor characterized as “lateral spondylolisthesis.” Her physician testified that lateral spondylolisthesis is a relatively rare condition that is typically not associated with normal wear and tear. It involves a slippage of the lumbar vertebra forward and to the side, which differs from the more common form of spondylolisthesis which involves only a forward slippage and is more difficult to correlate with trauma. Plaintiff’s treating physician, who diagnosed her condition, admitted that he could not “definitively attribute plaintiff’s spinal issues to the subject accident,” cited the fact that lateral spondylolisthesis is typically not caused by normal wear and tear and that, in plaintiff’s case, plaintiff reported that she had no “back problems prior to the subject accident.” Another of plaintiff’s physicians also confirmed that “plaintiff never told him about any medical treatment she received for back pain or injuries between 1989 and the subject automobile accident.”
Contrary to the plaintiff’s self-reported history of having had no back problems for the 20 year period before the accident, the defendant introduced medical evidence at trial that substantially contradicted the plaintiff’s testimony that she had not suffered any back problems in the 20 year period before the accident. The nature and impact of this testimony was described by the Court of Appeals as follows:
“[W]e conclude that reasonable jurors could disagree about whether the accident was the but-for cause of plaintiff’s claimed work-loss damages. A reasonable fact-finder could infer from the record evidence that plaintiff’s spinal injury was suffered before the accident. Neither of plaintiff’s two doctors who testified at trial were able to definitively state that the lateral spondylolisthesis was caused by the accident. Indeed, they both noted that, although uncommon, the condition could have been caused by mere degeneration. Indeed, Kotecha testified that, due to plaintiff’s scoliosis surgery, the vertebrae upon which he operated would have borne a larger load since 1989, thus increasing the rate of degeneration. Defendant introduced medical records establishing that, in 2006, plaintiff had x¬ rays taken of her lower spine that indicated degeneration of the vertebrae upon which her surgeon later operated, and that, in the years leading up to the accident, plaintiff was treated for back pain on at least eight occasions. Given her earlier testimony that she had suffered no ‘back issues’ between her recovery from the 1989 surgery and the subject accident, such evidence seriously undermined plaintiff’s credibility. Additionally, plaintiff’s medical records indicated that, in medical visits before the accident, she complained of many of the same symptoms as she did afterward, including fatigue, problems concentrating, trouble at work with sitting or standing for long periods, and pain that both prevented ‘her from doing much’ and forced her to take medication. Thus, even though it was controverted, a rational juror might have discounted plaintiff’s testimony that her back pain before the accident differed from that she suffered after the accident. See Taylor v Mobley, 279 Mich App 309, 314 n 5; 760 NW2d 234 (2008) (‘[T]he jurors’ prerogative to disbelieve testimony, including uncontroverted testimony, is well established.’).
Perhaps most significantly, plaintiff acknowledged that she failed to inform her post-accident treating physicians about any of her back problems between the 1989 surgery and the subject accident. Thus, to the extent her physicians suggested that plaintiff’s lateral spondylolisthesis was caused by the accident (which they could not confirm), their medical opinions on that subject were formed without knowledge of plaintiff’s significant and ongoing treatment for back pain between 2004 and 2008. Similarly, none of plaintiff’s family members, who testified that plaintiff’s back pain became significantly worse after the accident, acknowledged knowing about plaintiff’s previous medical treatment for lower back pain. In any event, ‘it is the role of the jury to determine which witnesses it found credible and what weight to give the various evidence.’ Freed v Salas, 286 Mich App 300, 325; 780NW2d 844 (2009).”
On appeal, and in response to the evidence introduced against her at trial, plaintiff argued that nevertheless, the jury should have ruled that her preexisting back condition was aggravated by the 2009 motor vehicle accident. The Court of Appeals rejected this late attempt to change the outcome of the trial and held that plaintiff had not adequately proved that she had sustained a preexisting condition that was in fact aggravated by her automobile accident injuries. Rather, the only thing that could be said about the testimony adduced at trial, was that plaintiff had a preexisting condition and that she was subsequently involved in a motor vehicle accident. What plaintiff failed to do, however, was establish a causal connection between the two. In this regard, the Court held:
“Plaintiff contends that, even if she had a preexisting back condition, the accident obviously aggravated that condition, further arguing that great weight of the evidence indicates that such aggravation caused her work-loss damages. . . . In 2006, plaintiff complained to a doctor of lower back pain at the same level she suffered after the accident. Thus, the jury could reasonably infer that plaintiff’s lateral spondylolisthesis, the alleged cause of her work loss, occurred before the accident and was not aggravated by the accident. In the case of the proverbial ‘eggshell’ plaintiff, a negligent party may be liable for the injuries caused by his negligence, including any aggravation of the eggshell condition, but the negligent party does not—regardless of causation—assume liability for the preexisting eggshell condition.”
Based upon the foregoing, the Court of Appeals held that plaintiff had failed to establish that her claimed excess work-loss damages were the result of injuries she sustained in the 2009 motor vehicle accident. In reaching this conclusion, the Court also noted that there was substantial evidence offered at trial by the defense that substantially called into question the level of plaintiff’s pre-accident earnings and whether she in fact suffered any demonstrable economic loss after the accident.
The Court also affirmed the jury’s determination that the injuries sustained by plaintiff in the 2009 accident did not constitute serious impairment of body function and, therefore, plaintiff was not entitled to recover noneconomic damages. In affirming the trial court’s refusal to grant JNOV regarding plaintiff’s noneconomic loss claim, the Court of Appeals held:
“To obtain noneconomic damages for such impairment, plaintiff was required to establish that the injury causing the impairment was caused by defendant’s negligence, i.e., the accident. MCL 500.3135(1). Since the evidence presented at trial could lead reasonable jurors to disagree as to whether plaintiff’s spinal injury was caused by the accident, the trial court did not err in denying her motion for JNOV on her claim for noneconomic damages.”
Based upon the foregoing, the Court of Appeals affirmed the correctness of the trial court’s refusal to set aside the jury’s verdict and order a new trial on plaintiff's tort claims.
