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Sierra-Burkes v Troy Aggregate Carriers, Inc, et al (UNP – COA 8/12/2021; RB # 4304)

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Michigan Court of Appeals; Docket #355513; Unpublished
Judges Sawyer, Boonstra, and Rick; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion


STATUTORY INDEXING:
Causation Issues [§3135]

TOPICAL INDEXING:
Not Applicable


SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiff Blanca Sierra-Burkes's third-party action against Defendant Troy Aggregate Carriers, Incorporated (“Troy”). The Court of Appeals held that Sierra-Burkes failed to present sufficient evidence to create a question of fact as to whether she suffered an objectively manifested impairment caused by the alleged incident.

Sierra-Burkes was driving on the expressway when a rock allegedly fell from the truck in front of her and cracked her windshield. After realizing her windshield was cracked, she waved for the driver of the truck to pull over, which he did. Sierra-Burkes then parked, exited her vehicle, approached the driver of the truck, and requested that he pay for the damaged windshield. The driver of the truck refused, telling Sierra-Burkes that his employer, Troy, would not pay for damage caused by road debris. Sierra-Burkes alleged that the truck driver then got back in his vehicle, pulled forward, hit, and injured her.

Following the accident, Sierra-Burkes called 911 and was transported by ambulance to the hospital. Upon arrival, medical staff noted that there was “no visible evidence of injury” and no radiological evidence of any acute process. Approximately two years later, Sierra-Burkes underwent a cervical spine surgery with Dr. Daniel Fahim, MD. His preoperative report “state[d] that the injury to her neck was a ‘traumatic cervical disc herniation with radiculopathy after MVA.’” Shortly thereafter, Sierra-Burkes filed a third-party lawsuit against Troy and the trial court ultimately granted summary disposition in Troy’s favor, ruling that Sierra-Burkes failed to present any evidence that her injuries were caused by the incident.

The Court of Appeals affirmed the trial court’s summary disposition order, noting that “it is not clear that [Sierra-Burkes] suffered any impairment of a body function as a result of the incident.” The Court noted that hospital staff on the date of the incident uncovered no evidence of injury, and that, on the date of the crash, Sierra-Burkes complained only of right leg pain, whereas, on appeal, Sierra-Burkes focused entirely on her neck pain (with which she had a significant and longstanding history of preexisting problems). As for the note in Dr. Fahim’s preoperative report, the Court held that this was insufficient to create a question of fact as to causation because it was not accompanied by any explanation or data, and because it provided only that the injury occurred “after” the incident—as opposed to stating that the injury was “caused by” the incident.

Plaintiff argues that incident caused her to undergo cervical spine surgery in June 2019. In particular, she notes that the preoperative report by Dr. Daniel Fahim, M.D. (Dr. Fahim) states that the injury to her neck was a “traumatic cervical disc herniation with radiculopathy after MVA [motor vehicle accident].” But “[p]arties opposing a motion for summary disposition must present more than conjecture and speculation to meet their burden of providing evidentiary proof establishing a genuine issue of material fact.” Karbel v Comerica Bank, 247 Mich App 90, 97-98; 635 NW2d 69 (2001), quoting Libralter Plastics v Chubb Group of Ins Cos, 199 Mich App 482, 486; 502 NW2d 742 (1993). “Mere speculation or conjecture is insufficient to establish reasonable inferences of causation.” Sniecinski v Blue Cross & Blue Shield of Mich, 469 Mich 124, 140; 666 NW2d 186 (2003). This statement by Dr. Fahim, which was not accompanied by any explanation or data, does not suffice to establish a causal connection without other corroborating evidence. The preoperative report states only that the injury was “after” the incident, not “caused by” the incident. And the statement is contradicted by plaintiff’s own statement that her neck pain was chronic and had been bothering her for at least six months before the incident, as well as the May 30, 2017 MRI results attributing her cervical spine pain to long-term degeneration. It is also contradicted by the findings of Dr. Steven Kalkanis, M.D. (Dr. Kalkanis), who performed an independent medical examination of plaintiff in 2020.

. . .

Plaintiff’s arguments are also contradicted because her condition improved after the incident. After undergoing gastric bypass surgery, plaintiff reported that her chronic pain had reduced significantly and her depression had alleviated. This improvement after a procedure that was entirely unrelated to treatment for a motor-vehicle injury casts doubt on plaintiff’s claim that her ailments were caused by the 2017 incident.

In sum, plaintiff’s chronic, long-term pain, combined with the lack of any physical evidence of an injury caused by a motor vehicle, lead to the conclusion that plaintiff did not suffer an objectively manifested injury or exacerbation as a result of the incident in 2017. Plaintiff did not demonstrate a causal link between the 2017 incident and any chronic pain she did suffer, and did not present evidence of “an impairment that is evidenced by actual symptoms or conditions that someone other than the injured person observed or perceived as impairing a body function.” McCormick, 487 Mich at 196.

The Court of Appeals further rejected Sierra-Burkes’s argument that, because Troy did not address the issue of causation in its motion for summary disposition—focusing instead on the three-pronged McCormick analysis—summary disposition should not have been granted on that basis. The Court of Appeals disagreed, holding that the issue of causation was “the subject of [Troy’s] motion for summary disposition,” and that “the trial court’s decision was on the basis of [Sierra-Burkes’s] failure to present a genuine issue of material fact regarding whether the incident had caused a serious impairment of body function.”

Plaintiff also argues that defendant did not address the issue of causation in its motion for summary disposition, and therefore the trial court should not have granted summary disposition on that basis. We disagree. The trial court’s decision was on the basis of plaintiff’s failure to present a genuine issue of material fact regarding whether the incident had caused a serious impairment of a body function. This issue was the subject of defendant’s motion for summary disposition. Plaintiff had an opportunity to respond to defendant’s motion for summary disposition, and although it was her responsibility to present evidence rebutting defendant’s arguments, she failed to do so. “[W]here the opposing party fails to come forward with evidence, beyond allegations or denials in the pleadings, to establish the existence of a material factual dispute, the motion is properly granted.” McCormick v Auto Club Ins Ass’n, 202 Mich App 233, 237; 507 NW2d 741 (1993); see also MCR 2.116(I)(1).

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