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]
In this unanimous, unpublished, per curiam decision (Boonstra, concurring), the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Jonathan Johnson’s third-party auto negligence action against Defendant Michael Aquilina. The Court of Appeals held that a question of fact existed as to whether Aquilina suffered a sudden emergency in the form of a first-time seizure immediately before rear-ending Johnson’s vehicle. The Court further held that even if Aquilina had suffered a first-time seizure immediately before the crash, summary disposition would not have been proper based on that fact alone, as the sudden emergency doctrine is not an affirmative defense. Next, the Court of Appeals held that a question of fact existed as to whether Johnson satisfied the first and third prongs of the test for serious impairment of body function set forth in McCormick v Carrier, 487 Mich 180 (2010).
Jonathan Johnson was stopped at a red light when his vehicle was rear-ended by a vehicle driven by Michael Aquilina. After the crash, Johnson received treatment from a doctor who treated him for several conditions prior to the crash, Eric Kovan, and Dr. Kovan diagnosed Johnson with neck pain, cervical radiculopathy, cervical myositis, whiplash, back pain, lumbago, and sciatica, stating that all of which were “exacerbated from previous injuries.” Five months after the crash, Johnson underwent a defense medical examination in which the examiner opined that, as of the date of the exam, Johnson’s injuries consisted of a “ ‘[r]esolved sprain of the neck and back,’ as well as degenerative arthritis in the lumbar spine.” Based on the defense medical examination, Aquilina moved for summary disposition in Johnson’s third-party auto negligence action against him, arguing, first, that Johnson could not satisfy the first and third prongs of the test for serious impairment of body function set forth in McCormick. Specifically, Aquilina argued that all Johnson’s injuries were pre-existing and that there was no change to his general ability to lead his normal life after the crash, given the fact that Johnson had been on Social Security Disability for six years prior to the crash. Aquilina also invoked the sudden emergency doctrine in his motion, arguing that he had suffered an unforeseeable, first-time seizure immediately prior to the crash. In support of this contention, he presented only his own affidavit, in which he stated that, “ ‘Upon information and belief, I experienced a seizure while driving seconds prior to the motor vehicle accident,’ ” and that, “Prior to [the date of the crash], I had never experienced a seizure or any type of similar event.’ ” The trial court granted Aquilina’s motion.
The Court of Appeals reversed the trial court’s summary disposition order, turning first to Aquilina’s invocation of the sudden emergency doctrine. The Court of Appeals held that, even if it were to grant that Aquilina suffered an unforeseeable, first-time seizure immediately before the crash, summary disposition would not be proper on that basis alone. The sudden emergency doctrine, after all, is not an affirmative defense. Rather, it is “merely one of the factors to consider in determining whether a person was negligent by failing to act as a reasonably prudent person would have under all the circumstances.”
“Applying these principles to the instant case, it is still a question of fact to be resolved by the jury whether defendant breached the standard of care under all the circumstances, even accepting as true his contention that he faced a sudden emergency when he suffered a seizure in the moments before the accident, having never before suffered a seizure. Defendant argues, and apparently the trial court accepted as true that experiencing a seizure while driving excuses him from any alleged negligence related to the accident. In this way, defendant and the trial court treated the sudden-emergency doctrine as an affirmative defense. Campbell v St John Hosp, 434 Mich 608, 615-616; 455 NW2d 695 (1990) (explaining that an affirmative defense does not address the merits of the plaintiff’s claim but instead ‘seeks to foreclose the plaintiff from continuing a civil action for reasons unrelated to the plaintiff’s prima facie case’).
However, the experience of a sudden emergency does not provide an affirmative defense to a negligence claim, Szymborski, 386 Mich at 341, but is instead merely one of the factors to consider in determining whether a person was negligent by failing to act as a reasonably prudent person would have under all of the circumstances, Baker, 374 Mich at 496; Triestram, 286 Mich at 17; Woiknoris, 70 Mich App at 240-241.”
The Court of Appeals held, second, that Aquilina’s affidavit was impermissible because Aquilina, a lay person, was not qualified to self-diagnose himself with a seizure, having never experienced one before. Moreover, the Court noted that Aquilina based his seizure theory on “ ‘information and belief,’ ” as opposed to personal knowledge, as is required under MCR 2.119(B)(1).
“Defendant’s statement in his affidavit that he suffered a seizure did not satisfy these requirements. His belief that he suffered a seizure was attributed to ‘information and belief.’ He did not claim to have personal knowledge that he suffered a seizure, or even explain what information led him to believe that he had a seizure. Moreover, his statement that he had never previously experienced a seizure or any type of similar event negated any inference that he was experienced in recognizing the signs of a seizure or knew that a seizure had occurred. Lay testimony about general medical conditions observed by a witness is ordinarily permitted. McPeak v McPeak (On Remand), 233 Mich App 483, 493; 593 NW2d 180 (1999), lv den 461 Mich 926 (1999). However, a first-time seizure is not a general condition that can be rationally based on the perception or self-diagnosis of the person suffering the seizure, especially where the occurrence of an alleged seizure is based on information and belief, rather than personal knowledge; therefore, defendant’s belief that he had one was not permissible lay opinion testimony under MRE 701. Defendant did not submit an affidavit by a medical expert, or any other evidence explaining the basis for his information or belief that he actually experienced a seizure. He provided the police report in which the author of the report attributed defendant’s loss of control of his vehicle to a seizure, but there is no basis for concluding that the report author had any personal knowledge that defendant had a seizure, and any statement by defendant to the officer to that effect would have been inadmissible hearsay, MRE 801(c) (defining hearsay as an out-of-court statement ‘offered in evidence to prove the truth of the matter asserted’); MRE 802 (hearsay is not admissible except as otherwise provided by the rules of evidence). Accordingly, defendant did not satisfy his initial burden of providing evidentiary support for the factual basis for his assertion of a sudden emergency. Lockwood, 323 Mich App at 401. Thus, he was not entitled to summary disposition on the basis of the sudden-emergency doctrine.”
The Court of Appeals then turned to the threshold standard under McCormick, holding, first, that a question of fact existed as to whether Johnson suffered an objectively manifested impairment. The Court highlighted Dr. Kovan’s diagnoses and opinion regarding causation and suggested that Dr. Kovan’s conclusions were even more credible considering his familiarity with Johnson’s pre-crash condition, having treated him prior to. Additionally, the Court highlighted the fact that Aquilina’s own medical examiner seemingly concluded that Johnson at least suffered a “ ‘sprain of the neck and back’ ” as a result of the crash.
“As our Supreme Court stated in McCormick, there are three necessary prongs for establishing a ‘serious impairment of body function’: ‘(1) an objectively manifested impairment (observable or perceivable from actual symptoms or conditions) (2) of an important body function (a body function of value, significance, or consequence to the injured person) that (3) affects the person’s general ability to lead his or her normal life (influences some of the plaintiff’s capacity to live in his or her normal manner of living).’ McCormick, 487 Mich at 215.
In the trial court, defendant first argued that plaintiff could not establish that the October 2016 accident caused his alleged injuries because there was no question of material fact that plaintiff’s conditions were pre-existing and degenerative in nature. Defendant relied on evidence of defendant’s longstanding history of back and neck issues, evidence that defendant received Social Security disability, and the report of a doctor who conducted an independent medical examination of plaintiff. Notably, although defendant characterized the insurance medical examiner’s opinion as stating broadly that plaintiff only suffered from degenerative conditions, that characterization is not entirely accurate. The examiner actually opined that as of the time of the examination, which was approximately five months after the accident, plaintiff had ‘Resolved sprain of the neck and back,’ as well as degenerative arthritis in the lumbar spine.
. . .
Viewing the evidence in a light most favorable to plaintiff as the nonmoving party, as required by the applicable standard of review, Maiden, 461 Mich at 120, a jury could reasonably find from medical records submitted in this case that trauma from the accident caused exacerbated symptoms from plaintiff’s pre-existing conditions, Wilkinson, 463 Mich at 395. The trial court thus erred to the extent it relied on defendant’s argument that plaintiff had not established a question of fact regarding whether there was an aggravation of plaintiff’s pre-existing conditions caused by the accident.”
The Court held that a question of fact also existed with regard to the third prong of the McCormick test. The Court noted that Johnson testified that he could not drive for five months after the crash, which prevented him from picking up his grandson from school as he customarily did before the crash. The Court also noted that Johnson testified that he could no longer play with his grandson to the same extent as he had prior to the crash. These things, alone, the Court held, created a question of fact as to whether the crash sufficiently affected Johnson’s general ability to lead his normal life.
“There is also record evidence in the form of plaintiff’s deposition testimony that plaintiff was unable to drive for a period of approximately five months following the accident, which prevented him from being able to pick his grandson up from school as he had done previously. Plaintiff further testified, ‘I can’t go out and throw a ball and play with my grandson anymore.’ Satisfying the third McCormick prong requires showing that the impairment had ‘an influence on some of the person’s capacity to live in his or her normal manner of living.’ McCormick, 487 Mich at 202; see also MCL 500.3135(5)(c). ‘[T]here is no temporal requirement for how long an impairment must last.’ MCL 500.3135(5)(c). ‘[T]he statute merely requires that a person’s general ability to lead his or her normal life has been affected, not destroyed.’ McCormick, 487 Mich at 202. Moreover, ‘the plain language of the statute only requires that some of the person’s ability to live in his or her normal manner of living has been affected, not that some of the person’s normal manner of living has itself been affected. Thus, while the extent to which a person’s general ability to live his or her normal life is affected by an impairment is undoubtedly related to what the person’s normal manner of living is, there is no quantitative minimum as to the percentage of a person’s normal manner of living that must be affected.’ Id. at 202-203. Applying these principles to the instant case and viewing the evidence in the light most favorable to plaintiff as the nonmoving party, a jury could reasonably conclude that the third McCormick prong was satisfied. Id.”
Judge Boonstra concurred, albeit “begrudgingly.” He stated that the reason for his hesitancy was the fact that Dr. Kovan’s diagnoses of Johnson’s various exacerbated conditions seemed to be based entirely on Johnson’s self-reported medical history. However, he concluded that summary disposition was still improper based on the record before the Court.
“I concur, but admittedly do so a bit grudgingly. The reason for my hesitancy is simply that the evidence presented to the trial court—with regard to the issue of causation—was thin. As the majority acknowledges, the only record evidence linking the accident with plaintiff’s allegedly exacerbated pre-existing conditions came from plaintiff’s treating physician, Dr. Kovan. Dr. Kovan’s records indeed at times refer to plaintiff’s complaints or symptoms as being ‘from,’ ‘secondary to,’ or even as ‘exacerbated’ by or ‘related’ to the motor vehicle accident. However, these notations have the appearance of being derived from plaintiff’s self-reported history, rather than from a medical evaluation. And the record contains no evidentiary exploration of whether the apparent linkage was in fact simply premised on plaintiff’s self-reported history.
. . .
. . . we have no medical testimony from either Dr. Kovan or any other medical professional, nor do we have any diagnostic tests or assessments that specifically link plaintiff’s symptoms to an acute injury or aggravation of a previous injury or reveal any specific observable cause of plaintiff’s pain. We have Dr. Kovan’s notations, but only those notations.
Perhaps if this issue had been explored during discovery, including by a deposition of Dr. Kovan, there would be an adequate record to decide the issue definitively. Perhaps on remand it can be. However, given the state of the record that is before us (including Dr. Kovan’s notations), viewing it in the light most favorable to plaintiff, I must conclude that the evidence presented to the trial court was sufficient to avoid summary disposition on causation grounds.”