Michigan Court of Appeals; Docket #281850; Unpublished
Judges Wilder, Meter, and Servitto; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
PIP Benefits Entitlement – General / Miscellaneous [3105]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals affirmed a jury verdict for plaintiff in this action for personal injury protection benefits, finding that defendant State Farm was not prejudiced when plaintiff called an expert for rebuttal testimony that her attorney had named five days before trial, where State Farm failed to move to exclude him and there was substantial other evidence supporting the conclusion that plaintiff suffered a closed head injury. In addition, the Court of Appeals found that the trial court properly denied State Farm’s motion for a new trial after plaintiff’s attorney stated in closing argument that purchasing insurance is akin to betting and then referred to State Farm’s wealth, finding that defendant’s immediate objection and the court’s curative instruction addressed the error.
The plaintiff in this case had been in six motor vehicle accidents that occurred annually from 1997 through 2002. After the last motor vehicle accident, plaintiff sustained a closed head injury, for which State Farm refused to make payment. Beginning in 2003, Dr. Robert Shuman performed several EEGs on plaintiff and one quantitative EEG (QEEG). In March 2004, plaintiff sued for PIP benefits. In June 2004, plaintiff answered interrogatories, but did not identify Dr. Shuman in her answers. In July 2004, when plaintiff’s attorney submitted her medical records to State Farm in response to its request for production of documents, Dr. Shuman’s records were not included. In October 2004, plaintiff’s attorney filed a witness list but failed to name Dr. Shuman. Some time later, State Farm learned of the EEGs and, in May 2006, it filed an amended witness list, in which it named Dr. Shuman as an expert and, after obtaining authorizations from plaintiff, unsuccessfully sought discovery from Dr. Shuman.
Trial was scheduled for August 22, 2006. On August 17, 2006, plaintiff’s attorney named Dr. Shuman as a rebuttal witness five days before trial. At the close of State Farm’s proofs, plaintiff’s attorney called Dr. Shuman as a rebuttal expert witness. State Farm objected, arguing that plaintiff had not identified Dr. Shuman as an expert witness until immediately before trial and, because Dr. Shuman had taken four of the EEGs that were critical to the litigation, he could not be considered a neutral witness. Defendant argued that Dr. Shuman should have been presented during plaintiff’s case-in-chief. The trial court overruled the objections and allowed Dr. Shuman to testify.
The jury’s verdict was mostly favorable to plaintiff and State Farm filed a motion for a new trial which the trial court denied.
In affirming, the Court of Appeals determined that State Farm was not denied a fair trial by the trial court’s decision to allow Dr. Shuman to testify. In so deciding, the court noted that after State Farm learned that Dr. Shuman was a proposed witness, it failed to file a written motion, or make an oral motion, to exclude him. In addition, when Dr. Shuman was called at trial, State Farm failed to raise any issues regarding Dr. Shuman’s qualifications or the reliability of his testimony and, therefore, failed to preserve the issue. Moreover, the court found that defendant was not denied a fair trial because there was additional substantial evidence to support the jury’s determination that plaintiff sustained a brain injury in the 2002 accident. Her psychiatrist testified that the accident aggravated her pre-existing chronic pain, her narcotic dependence, and caused a closed head injury with complex partial seizures. A neuropsychologist, who treated her both before and after the 2002 accident, testified that he noticed a big difference in plaintiff’s condition after the accident. Another neuropsychologist testified that his testing suggested that she sustained a brain injury. And finally, another treating physician testified that plaintiff was severely confused, delirious, disoriented in time, space, and place, impaired in gait, and suffered from memory loss. Based on this and other evidence, the Court of Appeals concluded that the trial court did not abuse its discretion when it concluded that any error in the admission of Dr. Shuman’s testimony was harmless. In this regard, the court stated:
“[W]e conclude that defendant was not denied a fair trial by the trial judge’s decision to permit Dr. Shuman to testify. Defendant knew at least several days before trial that Dr. Shuman was a proposed witness, yet failed to file a written motion, or to make an oral motion, to exclude him. Again, during trial, when Dr. Shuman was called as a rebuttal witness, defendant failed to raise the issue of Dr. Shuman’s qualifications, or the reliability of his testimony. In affect, defendant failed to preserve this issue by failing to timely bring it to the trial judge’s attention. . . .
In addition, defendant was not denied a fair trial, because there was substantial other admissible evidence supporting the conclusion that plaintiff suffered a brain injury in this 2002 accident. Dr. Hensley, a qualified psychiatrist, testified that the accident aggravated plaintiff’s pre-existing chronic pain, and her narcotic dependence, and also caused a closed-head injury with complex partial seizures. Dr. Paul Macellari, a neuropsychologist, who was a treater both before and after the accident, testified that he observed a big difference in plaintiff, pre-accident versus post-accident, which made him think that she ‘really went through something.’ Dr. Macellari observed plaintiff to be severely confused; delirious; disoriented in time, space and place; impaired in gait; and with memory loss. Dr. Gary Elliott, a neuropsychologist, testified that his testing suggested that plaintiff was suffering from a brain injury, superimposed on pre-existing psychological and pain issues. Dr. Elliott also testified that the pre-existing psychological and pain issues were aggravated by the 2002 accident. Given this other evidence in support of plaintiff’s claim, the trial court did not abuse its discretion in concluding that any error in the admission of Dr. Shuman’s testimony and QEEG test results, was harmless.”
In addition, the Court of Appeals determined that although plaintiff’s attorney made improper statements during closing argument regarding State Farm’s wealth and statements that appealed to the jurors’ self-interest, the trial court did not abuse its discretion when it denied State Farm’s motion for a new trial. In affirming, the court noted that after plaintiff’s attorney made the improper comments, State Farm’s attorney immediately objected and the trial court immediately gave curative instructions. Moreover, the court later instructed the jury that it could not let sympathy influence its decision and that State Farm, as a corporate person, was entitled to the same fair treatment as a natural person. The court stated that jurors are presumed to follow instructions and with that presumption and the evidence presented at trial, the court concluded that the trial court did not abuse its discretion when it denied State Farm’s motion for a new trial. In this regard, the court stated:
“Here, although the misconduct was clearly an appeal to jurors to consider their own interests as buyers of insurance, and to have an antipathy toward insurance companies because of their alleged size and wealth, defense counsel promptly objected, and the trial court gave an immediate curative instruction. Also, later the trial judge instructed the jurors that sympathy must not influence its decision, nor should the jury be influenced by prejudice regarding any factor not relevant to the rights of a party. The trial judge instructed the jury that the defendant, a corporate person, was entitled to the same fair and unprejudiced treatment as a natural person would receive, under like circumstances.
We presume that jurors follow instructions. . . . We conclude that, given the foregoing evidence and presumption, defendant has failed to show that the trial judge abused his discretion in denying the motion for new trial.”
