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Davis, et al v Nationwide Prop & Cas Ins Co, et al (COA – UNP 12/2/2021; RB #4360)

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Michigan Court of Appeals; Docket #355516; Unpublished
Judges Borrello, Jansen, and Boonstra; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion; Link to Dissent


STATUTORY INDEXING:
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 – Present) [§3135(5)**]
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – Present) [§3135(5)**]
Causation Issues [§3135]

TOPICAL INDEXING:
Not Applicable


SUMMARY:
In this 2-1 unpublished per curiam decision (Borrello, dissenting), the Court of Appeals reversed the trial court’s denial of Defendant Beverly Young’s motion for summary disposition, in which Young sought dismissal of Plaintiff Kevin Davis’s third-party action against her. The Court of Appeals held that Davis failed to satisfy the first and third prongs of the test for establishing a serious impairment of body function set forth in McCormick v Carrier, 487 Mich 180, and that Davis failed to show that any of his injuries were caused by the subject motor vehicle collision.

Kevin Davis was allegedly injured in a motor vehicle collision while traveling as a passenger in a vehicle driven by Sonciray Davis. Prior to the collision, Kevin Davis suffered from numerous longstanding illnesses and diseases, including congestive heart failure, chronic kidney disease, hyperlipidemia, hypertension, morbid obesity, peripheral neuropathy, malnutrition, sleep apnea, and chronic right leg swelling. Sonciray testified that, immediately after the collision, Kevin said he hit his head and legs as a result of the impact. The day after the collision, Kevin presented to the emergency room for the first time, complaining of neck, back, and leg pain, but also said that he was being sent there by his pain clinic doctor because of concern for a potential infection in his legs. He told the emergency room staff that he had not hit his head in the collision, and the emergency room staff found only small abrasions on his legs, noting also that there were multiple lower extremity scars due to a previous motorcycle accident. Kevin allegedly continued to have neck and back pain as a result of the collision, adducing MRIs of his cervical and lumbar spine in his subsequent third-party action against Beverly Young—the at-fault driver in the crash. Young moved for summary disposition, arguing that Davis failed to present sufficient evidence to create a question of fact as to whether he had suffered an objectively manifested impairment that affected his general ability to lead his normal life, but the trial court denied Young’s motion, writing only the words “Herniated Discs” in its order.

The Court of Appeals reversed the trial court’s denial of Young’s motion, holding, first, that Davis failed to establish that any objectively manifested impairments he had were caused by the crash. In its opinion, the Court did not identify any actual diagnoses Davis received after the crash, although it appears, based on the trial court's order denying Young's motion for summary disposition, that Davis was at least diagnosed with herniated discs. Instead, the Court of Appeals merely noted that, while Davis presented to the emergency room with swelling and edema in his legs the day after the crash, he had been struggling with those exact symptoms for years prior to the crash.  Moreover, because Davis failed to present any radiological images of his neck or back from before the crash, the Court of Appeals held that the MRIs of his cervical and lumbar spine from after the crash were not sufficient to establish that any changes in his neck or back injuries resulted from the collision.

“The evidence from plaintiff’s trip to the emergency room the day after the accident casts doubt on his claim that he suffered an objectively manifested impairment. He went to the emergency room complaining of neck, back, and leg pain, but he also stated that he was sent to the emergency room by a pain clinic doctor because of concern for potential infection in his red and swollen legs. Plaintiff has dealt with edema and swelling in both legs for many years, and there is no indication in the record that the swollen nature of his legs on November 14, 2017, was causally related to the accident the day before. The emergency room staff observed a ‘2 cm abrasion on left lower leg’ and a ‘superficial abrasion of right lower leg.’ However, they also observed ‘moderate to extensive peripheral edema of right lower leg and mild to moderate edema of the left lower leg,’ and noted that plaintiff had a number of chronic conditions, including ‘chronic right leg swelling.’ Plaintiff offers no evidence that would distinguish the swelling and edema in his lower legs and the swelling allegedly observed by the pain clinic doctor from any swelling that might have been a result of the November 13, 2017 accident. His claim is also belied by his subsequent visit to St. John’s Hospital on October 26, 2018—almost a full year later—complaining of the exact same thing: lower leg swelling.

Plaintiff further claims the accident ‘broke skin’ on his legs, but this claim is tempered by the emergency room staff’s finding of only small abrasions on his legs the day after the accident. At the October 26, 2018 hospital visit almost a year after the accident, the emergency room staff found that plaintiff had ‘multiple right lower extremity scars due to a previous motorcycle accident . . . .’  There was no indication that these lower leg scars and skin grafts were related to the small abrasions that were found on plaintiff’s legs the day after the subject accident.

Even if it could be determined that plaintiff sustained objectively manifested impairments, the evidence does not establish such impairments are causally connected to the November 13, 2017 motor vehicle accident. Plaintiff’s impairments after the accident differ very little from the impairments he experienced before the accident. He has an extensive history of back and leg pain stemming from before the accident, and the neck pain was not substantiated by the medical examination the day after the accident, nor supported by any claim or evidence of neck trauma. Plaintiff presents the January 2018 cervical spine MRI as evidence of neck pain that was caused by the accident, but the stand-alone MRI, without anything to compare it to, does not prove plaintiff’s argument since the conditions in the MRI are not attributed to the accident. If plaintiff had, for instance, provided an MRI from before the accident showing no cervical spine problems, his argument might be more convincing. But no such evidence exists. Plaintiff’s speculative claim that the neck pain was caused by the accident, which is unaccompanied by any corroborating evidence, does not suffice to establish a causal connection where all other evidence fails to provide one. It states only that the impairment was ‘after’ the accident, not ‘caused by’ the accident.

Plaintiff also argues that his back pain was caused by the accident. He presents the January 2018 lumbar spine MRI as evidence for this conclusion, but this MRI runs into the same causal issues as the cervical spine MRI. Despite a caregiver’s apparent corroboration of plaintiff’s claim that his back pain started after the accident, the same caregiver also stated that plaintiff complained of back pain before the accident.

Plaintiff’s back pain argument is weakened by Sonciray’s testimony that she massaged his back both before and after the accident. Plaintiff argues that the failure to resolve the back pain issue suggests the accident caused an objectively manifested impairment, but—as discussed above—it is not at all clear that plaintiff’s back pain was caused by the accident or that it did not exist before the accident. When seen in light of plaintiff’s long-term chronic medical and pain issues, a clear causal connection between the accident and plaintiff’s alleged impairments has not been established. In sum, because of the significant impairments that existed before the accident, all of which were similar to the impairments plaintiff experienced after the accident, it is not clear that the accident caused or exacerbated the impairments. Unlike McCormick, in which the plaintiff’s injuries stemmed from a single incident, McCormick, 487 Mich at 184-188, the injuries in this case have been chronic for months or, in some cases, years.”

The Court of Appeals next held that Davis failed to present sufficient evidence to create a question of fact as to whether his alleged impairments affected his general ability to lead his normal life. Davis’s life was sedentary even before the collision: Sonciray was his full-time caretaker, performing virtually all household chores and assisting him with virtually all activities of daily living. Davis’s life before the collision, in the words of the Court, “revolv[ed] mostly around sleeping, watching television, and going to dialysis.” Furthermore, while Davis testified that, prior to the crash, he was able to walk around the block once or twice a week, the Court noted that he “did not state whether he had attempted to do so after the accident.”

“There was no significant difference in what plaintiff could do before and after the accident. Ending in March 2017, plaintiff had been hospitalized and in a rehabilitation care facility for nine months because he had congestive heart failure. Sonciray was his full-time caretaker. He was unable to play pool after this hospital stay. He did not drive before or after the November 13, 2017 accident. He struggled to go down the stairs both before and after the accident. Before the accident, plaintiff could not walk or swim without assistance; the same remained true after the accident. His lifestyle remained sedentary, as it was before the accident, revolving mostly around sleeping, watching television, and going to dialysis. Before the accident, plaintiff was unable to do almost any household chores. Sonciray and her mother took care of all such duties for him, including cooking, monitoring his medications, cleaning, grocery shopping, and bathing plaintiff. After the accident, they continued to do all of those things.

Aside from a short span of two months when Sonciray bandaged plaintiff’s legs in an area where pus had been leaking out of the leg, nothing changed. As noted above, there is no evidence of a causal connection between the leaking skin on his legs and the small abrasions observed after the accident. Plaintiff stated that Sonciray and her mother began helping him put his socks and shoes on after the accident, but he also stated that he did not know why he was unable to put on his socks. He claimed that he used to be able to walk around the block once or twice a week with Sonciray, but he did not state whether he had attempted to do so after the accident. He admitted that his congestive heart failure affected his ability to walk around the block, and offers no evidence with which to distinguish the two causes. Plaintiff claimed that his neuropathy got worse after the accident, but he did not offer any details on how or where the neuropathy bothered him, nor did he provide any evidence that the neuropathy was causally linked to the accident.”

Justice Borrello dissented, but stopped short of arguing that the trial court’s denial of Young’s motion for summary disposition should be affirmed, “because the trial court did not make a legally sufficient record from which this Court could engage in any meaningful review.” Nonetheless, he argued that the majority improperly resolved factual disputes and made its own findings of fact based on its assessment of conflicting evidence.


Lansing car accident lawyer Stephen Sinas is the lead editor of the appellate case summaries published on this site regarding the Michigan auto insurance law. To learn more about how Stephen Sinas and how the Sinas Dramis Law Firm can help you if you have been injured in a Michigan auto accident, visit SinasDramis.com.

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