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Hosey v Berry; (COA-UNP, 4/6/2006, RB #2712)


Michigan Court of Appeals; Docket #257709; Unpublished
Judges Owens, Kelly, and Hood; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion courthouse graphic

Causation Issues [3135]

Not applicable

In this unanimous unpublished per curiam opinion, the Court of Appeals reversed the trial court order granting defendant’s motion for summary disposition on plaintiff’s claim for non-economic losses finding that plaintiff provided sufficient evidence of causation. The plaintiff in this case sustained ill-defined back and neck injuries for which she received three epidural steroid injections, a lumbar laminectomy and a spinal fusion. The trial court granted defendant’s motion for summary disposition, agreeing that plaintiff failed to provide admissible evidence regarding her injuries. In reversing, the Court of Appeals noted that although plaintiff supported her claims with physician’s reports which were prepared for purposes of litigation rather than in the regular course of business, the doctors’ opinions contained in the reports are admissible for purposes of determining whether defendant is entitled to summary disposition. In this regard, the court reasoned:

There is no dispute that the physicians’ reports in this case were completed for the purpose of litigation. . . . Documents prepared for use in litigation lack trustworthiness and are not admissible under MRE 803(6). . . . Nonetheless, . . . pursuant to MCR 2.116(G)(6), the content of the physicians’ reports, i.e., the doctors’ opinions are admissible. . . . Although the reports themselves are inadmissible, the doctors’ opinions would be admissible in the form of opinion testimony at trial. To withstand a motion under MCR 2.116(C)(10), ‘[a]ffidavits, depositions, admissions, and documentary evidence . . . shall only be considered to [the] extent that the content or substance would be admissible as evidence to establish or deny the grounds stated in the motion.’ . . . Because the doctors’ opinion testimony would be admissible at trial, their opinions, contained in the inadmissible reports, suffice to support plaintiff’s response to defendant’s motion for summary disposition. In their opinions, the doctors state that plaintiff’s injuries were caused by the accident. Therefore, the trial court erred in granting summary disposition on the basis that there was no genuine issue of fact with regard to causation.”

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