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Smith v Buerkel (COA – UNP 4/29/2021; RB #4254)

Michigan Court of Appeals; Docket # 349874, 350274; Unpublished
Judges O’Brien, Stephens, and Boonstra; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion


STATUTORY INDEXING:
Determining Serious Impairment of Body Function As a Matter of Law (McCormick Era: 2010 – Present) [§3135(2)]
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(5)**]
Trial Procedure Issues [§3135]

TOPICAL INDEXING:
Not Applicable


SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals affirmed the judgment entered in Plaintiff Leon Smith’s third-party action against Defendant Patsy Buerkel after a jury trial, as well as the trial court’s award of case evaluation sanctions against Buerkel.  The Court of Appeals held that the trial court did not err in granting Smith’s motion for directed verdict on the issues of whether he suffered a serious impairment of body function and causation, and that the trial court did not err in awarding Smith case evaluation sanctions against Buerkel.

Leon Smith was injured after Patsy Buerkel rear-ended him, causing Smith’s vehicle to hit the vehicle ahead of him.  Smith declined emergency medical treatment, but later went to the emergency room after experiencing back pain, neck soreness, and headaches.  His imaging did not reveal any acute traumatic injuries, but he was diagnosed with a cervical strain and discharged with a neck brace and medication.  Smith continued to experience neck and back pain in the following weeks and months, and was referred by his primary care physician to a physical medicine and rehabilitation physician, Dr. Craig Whitmore.  Dr Whitmore diagnosed Smith with sacroiliitis—“a pain in the back related to the sacral region,” and instructed him to refrain from working as a corrections officer and from performing household chores.  Smith had subsequent appointments with Dr. Whitmore, and had MRIs conducted of his back, but those MRIs came back negative.  Dr. Whitmore later noted, however, “that sacroiliitis would not usually appear on a MRI.” 

Smith then filed suit against Buerkel, alleging that her negligence had caused him to suffer a serious impairment of body function, and the case proceeded to a jury trial.  Smith produced only one expert witness, Dr. Whitmore, and Buerkel produced only one expert witness—an ER physician—Dr. Rickey Courtney.  The trial court ultimately struck Dr. Courtney’s expert testimony because Buerkel failed to list him as an expert prior to trial, and granted Smith’s motion for a directed verdict, finding that Smith presented uncontroverted facts establishing that he had suffered a serious impairment of body function as a result of the crash, and that his impairment affected his general ability to lead his normal life.  The jury awarded Smith $100,000 in noneconomic damages, and the trial court then awarded case evaluation sanctions in Smith’s favor, as Buerkel had rejected a case evaluation award of $35,000.

On appeal, Buerkel first argued that the trial court erred in ruling that there was no material factual dispute as to whether Smith had suffered a serious impairment of body function.  The Court of Appeals disagreed, finding that Buerkel had failed to present any evidence in support of her contention that Smith’s injuries may have preexisted the crash, and that Smith had presented sufficient evidence to establish that he did, in fact, sustain a legitimate injury: sacroiliitis.  Moreover, the Court of Appeals held that Smith proved that his injuries affected his general ability to lead his normal life, as he was ordered to refrain from working and performing household chores for six months after his injury. Specifically, the Court stated:

“The trial court held that the evidence did not establish a material factual dispute regarding the nature and extent of plaintiff’s injury. We agree. The evidence produced at trial from plaintiff, Dr. Courtney, and Dr. Whitmore revealed that plaintiff sought treatment for back pain, neck pain, and headaches on the day of the accident. Plaintiff’s injury was diagnosed as sacroiliitis and required continued treatment through December 2014, which included multiple rounds of physical therapy, leave from work, restrictions on performing household chores, and pain medication. Plaintiff testified, and this testimony was not refuted, that his ability to work, exercise, walk his dogs, play with his children, care for family members, dance, lay on his back, and participate in activities as he did before the accident was substantially impaired from the date of the accident until approximately December 2014 as a consequence of his injury. Although defendant argued that plaintiff’s back injury may have been caused by a preexisting degenerative disc condition or subsequent motor vehicle accident, no evidence was produced at trial to support those allegations. While Dr. Courtney’s records did indicate the presence of a degenerative disc condition, Dr. Courtney described this condition as both ‘mild’ and “age-appropriate” and concluded that plaintiff’s symptoms had been caused by a motor vehicle accident. Defendant presented no expert testimony to support its theory that plaintiff’s back injury had another cause, but presented merely speculation. Nor did defendant present testimony or other evidence to refute the evidence regarding the extent of plaintiff’s injury.

On this basis, we agree with the trial court that there was no material factual dispute regarding the nature and extent of plaintiff’s injury. Chouman, 293 Mich App at 441. Plaintiff’s evidence included the fact that plaintiff’s PCP and Dr. Whitmore recommended over six months of physical therapy, plaintiff’s inability to work or participate in other pre-accident activities for over six months, and plaintiff’s residual back pain. Again, there is no temporal requirement regarding how long the impairment must last and no requirement of permanency to meet the serious impairment threshold. McCormick, 487 Mich at 203. Plaintiff’s impaired ability to lead his normal life from March 2014, when the accident occurred, until December 2014, when he was discharged from physical therapy and cleared to return to work, satisfied the definition of a serious impairment of body function. Accordingly, the trial court did not err by granting a directed verdict in favor of plaintiff on this issue. Barnes, [citation omitted].”

Buerkel next argued that the trial court erred by granting a directed verdict in Smith’s favor on the issue of causation, and specifically that Dr. Courtney’s stricken testimony would have created a question of fact regarding causation.  The Court of Appeals disagreed, ruling that it was within the trial court’s discretion to exclude an expert witness who was not disclosed on Buerkel’s expert witness list, and that even if the trial court had allowed Dr. Courtney’s testimony, the trial court still would have been able to grant Smith’s motion for a directed verdict.  After all, the trial court “essentially considered Dr. Courtney’s testimony in its entirety and concluded that defendant had failed to establish a genuine issue of material fact with respect to causation.

Buerkel lastly argued that the trial court erred in granting case evaluation sanctions in Smith’s favor, but the Court of Appeals held that this argument was without merit, as the jury’s award exceeded the case evaluation award of $35,000 by more than 10%.

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