BARBARA A LEWIS-CLARK V JAMES GLAZIER
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STATE OF MICHIGAN
COURT OF APPEALS
BARBARA A. LEWIS-CLARK, Individually and
as Personal Representative of the Estate of
HENRY O. CLARK, JR.,
UNPUBLISHED
January 15, 2008
Plaintiff-Appellant,
v
JAMES GLAZIER, M.D. and JOHN BARNWELL,
M.D.,
No. 273716
Wayne Circuit Court
LC No. 03-340704-NH
Defendants,
and
HARPER HOSPITAL, d/b/a HARPER HUTZEL
HOSPITAL, DETROIT MEDICAL CENTER, J.
PIPER, R.N., J. NEINO, R.N., and VIRGINIA
TEKEILI, R.PH.,
Defendants-Appellees,
and
NJERI RUTHERFORD,
Claimant,
and
KALLENE RUTHERFORD,
Claimant-Appellee.
Before: Talbot, P.J., and Zahra and Meter, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court’s order approving and authorizing the
distribution of settlement proceeds in this wrongful death medical malpractice action. Plaintiff
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also challenges the chief circuit court judge’s order denying her motion to disqualify the trial
judge. We affirm.
I. Background
Plaintiff filed this wrongful death action after her husband, Henry Clark, died from
complications following gall bladder surgery. The action was settled for $500,000, which the
trial court approved, but the family members could not agree on the distribution of the settlement
proceeds.
The decedent and plaintiff each had a daughter from a prior relationship. The decedent’s
daughter, Kallene, and plaintiff’s daughter, Chandra, are approximately the same age. Henry and
plaintiff married in October 1985, when Kallene was in high school. Henry adopted Chandra
approximately one year later. Chandra lived with Henry and plaintiff until 1987, when she
married and moved to New York with her husband. Chandra lived in New York for ten years
before returning to live with plaintiff. Kallene lived with her mother and stepfather during her
formative years, except for two brief periods when she lived with Henry and plaintiff.
Henry and plaintiff divorced in 1995, and Henry moved in with his parents. In 1997,
Henry suffered a stroke. When Henry was released from the hospital in September 1997,
Chandra became his guardian and he moved in with plaintiff and Chandra. Henry remarried
plaintiff in December 1997. Henry eventually made a full recovery. During his stroke recovery,
Kallene had very little contact with Henry. However, in June 2000, Kallene and Henry reestablished their relationship. On June 27, 2001, Henry was admitted to the hospital to have his
gall bladder removed. He died on July 3, 2001, from internal bleeding following the surgery.
After conducting an evidentiary hearing, the trial court ordered that the settlement
proceeds be awarded in the following proportions: (1) 42 percent to plaintiff; (2) 27 percent to
Kallene; (3) 17 percent to Chandra; and (4) 14 percent to Kallene’s daughter Njeri. Plaintiff
subsequently filed a motion requesting the trial court to reconsider its earlier decision not to
award damages for conscious pain and suffering, which the trial court treated as a motion for
relief from judgment. The trial court denied the motion, finding that there was no evidence to
support an award to the estate for conscious pain and suffering.
II. Distribution of Settlement Proceeds
Plaintiff challenges the trial court’s distribution as it relates to Chandra’s and Kallene’s
awards. She also challenges the trial court’s finding that there was no evidence of conscious
pain and suffering.
A. Standard of Review
A trial court's decision concerning the distribution of settlement proceeds in a wrongful
death action is reviewed under the clearly erroneous standard. McTaggart v Lindsey, 202 Mich
App 612, 615-616; 509 NW2d 881 (1993). “A finding is clearly erroneous when, although there
is evidence to support it, the reviewing court is left with a definite and firm conviction that a
mistake has been made. If the reviewing court determines that the trial court made a mistake, it
will substitute its own appraisal of the record and reduce damages or conditionally affirm the
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award.” Id. at 616. In reviewing the trial court’s findings, however, this Court gives due regard
to the special opportunity of the court to judge witness credibility. Hoogewerf v Kovach, 185
Mich App 577, 579; 463 NW2d 160 (1990). Settlement proceeds are to be distributed in a fair
and equitable manner. In re Claim of Carr, 189 Mich App 234, 237-238, 240; 471 NW2d 637
(1991).
This Court reviews a trial court’s decision regarding a motion for relief from judgment
for an abuse of discretion. Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 404; 651
NW2d 756 (2002). An abuse of discretion occurs when a trial court’s decision is outside the
principled range of outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809
(2006).
B. Loss of Society
Plaintiff argues that the trial court clearly erred in distributing the settlement proceeds
between Henry’s two daughters, Chandra and Kallene. Plaintiff asserts that Chandra should
have received an equal, if not greater, share of the proceeds than Kallene.
“Michigan's wrongful death act, MCL 600.2922, provides for the distribution of
settlement proceeds to claimants who have suffered damages . . . in an amount the court deems
fair and equitable after considering the relative damages sustained by each of the persons and the
estate.” McTaggert, supra at 616. Damages for the loss of society and companionship
awardable under the wrongful death act compensate “for the destruction of family relationships
that result when one family member dies.” Id. at 616 (citation omitted). “The only reasonable
means of measuring the actual destruction caused is to assess the type of relationship the
decedent had with the claimant in terms of objective behavior as indicated by the time and
activity shared and the overall characteristics of the relationship.” McTaggert, supra at 616;
Carr, supra at 239.
The trial court found that Kallene and Henry had a mutual and loving relationship,
despite periods of estrangement, for all of Kallene’s life. With regard to Chandra, the trial court
found that she had enjoyed a fatherly relationship with Henry since her teenage years, when
Henry adopted her. At the time of Henry’s death, Chandra and Kallene were 31 and 30 years
old, respectively. Kallene’s award was just over one-third greater than Chandra’s award. It
appears that the trial court found that Chandra had a slightly “closer” relationship with Henry,
but that Kallene had a longer relationship with him.
Plaintiff argues that the evidence clearly showed that Chandra had a closer relationship to
Henry than did Kallene and, therefore, Chandra should have received a greater, or at least an
equal, percentage of the proceeds relative to Kallene. Plaintiff particularly focuses on Chandra’s
role in Henry’s stroke recovery. It is undisputed that Kallene did not play a role in Henry’s
recovery, while Chandra greatly assisted Henry, even becoming his guardian. The evidence also
showed that Chandra had a close relationship with Henry. During her teenage years, Chandra
was able to spend more time with Henry because she lived with him. When she moved to New
York, she continued her relationship with Henry, visiting every six months during the ten-year
period that she lived out of state. These are all facts that the trial court recognized, but we do not
believe that they render the trial court’s award to Chandra clearly erroneous.
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Plaintiff asserts that Kallene’s relationship with Henry was inconsistent at best and did
not warrant a larger portion of the proceeds. The trial court found that most of the strain in
Kallene and Henry’s relationship was due to normal teenage behavior or the circumstances
regarding the adults in Kallene’s life. There was evidence that Kallene, at times, disrespected
her father, but these incidents were limited to her teenage years. The evidence also showed that
issues between Kallene’s mother and Henry affected the frequency of Kallene’s contact with
Henry during this time. Kallene testified that her relationship with Henry was more strained
when he was married to plaintiff and that the quantity and quality of her time with her father
decreased during these periods. The evidence also indicated that neither plaintiff nor Chandra
had sufficient observations of Kallene and Henry together to offer direct testimony regarding
Kallene and Henry’s interactions. The trial court did not clearly err in finding that Kallene’s
actions and reactions to Henry during her teenage years were the product of normal teenage
behavior and the difficulty of adjusting to a blended family as a result of her father’s remarriage
when she was approximately 14 years old. We further conclude that the trial court did not
clearly err in finding that Kallene and Henry’s relationship was strained at times because of the
involvement of plaintiff and Kallene’s mother.
Plaintiff takes issue with the trial court’s finding that she was a source of interference in
Kallene and Henry’s relationship. Plaintiff testified that she always tried to include Kallene in
the family, indicating that it was Kallene who was cold and chose not to be a part of Henry’s life.
The trial court discounted this aspect of plaintiff’s testimony, finding it not credible. We
determine that the trial court’s finding, in this regard, is not clearly erroneous. Plaintiff testified
that she was happy to have Kallene as another daughter and was open to her, but she also
testified that when Kallene was out of sight she was also out of mind. Plaintiff testified that
Kallene did not come to the hospital after Henry had gall bladder surgery, but later stated that she
did. Furthermore, plaintiff reported that she had a decent relationship with Henry’s family and
that, at the time of Henry’s stroke, she and Henry had already made plans to remarry. Yet
plaintiff learned of Henry’s stroke from one of his co-workers and Henry’s family did not
include her on the hospital’s visitor list. Moreover, plaintiff believed Kallene was the cause of
her divorce from Henry, which provided an additional reason for the trial court to view plaintiff’s
testimony regarding Kallene with a critical eye.
Kallene admitted that she had very little contact with Henry after his stroke for a period
of 2-1/2 years. She explained that this was because she had to go through plaintiff to arrange to
see Henry, who was not mentally or physically self-sufficient during this time, which she found
difficult to do. Although Kallene admitted that it was her own immaturity that prevented her
from dealing with plaintiff in a different manner and insisting on more frequent contact with her
father during his stroke recovery, we do not believe that this supports plaintiff’s contention that
the trial court’s award to Kallene is clearly erroneous.
Plaintiff further argues that the trial court ignored Henry’s will, which provided that she
and Chandra were the primary beneficiaries of his assets. Plaintiff asserts that Henry’s will
shows that he had a closer relationship to Chandra. Although provisions of a will may be
relevant to distributing damages attributable to loss of support and consortium, the trial court is
not bound by it. In re Thornton, 192 Mich App 709, 715; 481 NW2d 828 (1992). Considering
that the will was executed in 1999, at a time when Henry was admittedly estranged from Kallene
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during his stroke recovery, we cannot say that the trial court clearly erred in failing to give
weight to the will’s provisions.
Plaintiff also asserts that the only explanation for the trial court’s greater award to
Kallene is that she was Henry’s biological daughter, whereas Chandra was his adopted daughter.
The trial court’s written findings of fact provide no indication that this was a factor in its
decision. In sum, we conclude that the trial court’s decision is not clearly erroneous.
C. Conscious Pain and Suffering
The wrongful death act provides for “reasonable compensation for the pain and suffering,
while conscious, undergone by the deceased during the period intervening between the time of
the injury and death.” MCL 600.2922(6). Plaintiff argues that the trial court clearly erred in
finding that there was no evidence of Henry’s conscious pain and suffering. She first argues that
conscious pain and suffering could be inferred from the fact that Henry bled internally for three
days before slipping into a coma. However, plaintiff did not present evidence at the evidentiary
hearings to substantiate her claim that Henry experienced internal bleeding for three days.
Further, there was no competent evidence that Henry experienced disconcerting symptoms
related to the alleged bleeding.
This Court has recognized that pain and suffering may be inferred from circumstantial
evidence. See Rickwalt v Richfield Lakes Corp, 246 Mich App 450, 461; 633 NW2d 418 (2001)
and Byrne v Schneider’s Iron & Metal, Inc, 190 Mich App 176, 180; 475 NW2d 854 (1991). In
this case, plaintiff relies on Dr. Robert Stark’s affidavit of merit to affirmatively establish that
Henry suffered persistent dizziness and light-headedness as a result of his internal bleeding.
However, an affidavit is simply an offer of proof; it is not evidence. No medical professional
testified at the evidentiary hearings regarding Henry’s symptoms after surgery and his medical
records were not admitted.
As direct evidence of Henry’s pain and suffering, plaintiff also cites several statements
allegedly made by Henry that she overheard. However, plaintiff did not testify regarding these
statements at the evidentiary hearings. She only referred to them in her brief in which she
requested the trial court to reconsider an award for conscious pain and suffering. Plaintiff’s
unsupported assertions in her brief are not evidence and do not support an award for conscious
pain and suffering. Accordingly, the trial court did not clearly err in finding that there was no
competent evidence of Henry’s conscious pain and suffering, and accordingly, did not abuse its
discretion in denying plaintiff’s motion for relief from judgment.
III. Motion for Judicial Disqualification
A trial court's factual findings on a motion for disqualification are reviewed for an abuse
of discretion, while the application of the facts to the law is reviewed de novo. Van Buren Twp v
Garter Belt, Inc, 258 Mich App 594, 598; 673 NW2d 111 (2003). “A judge is disqualified when
he cannot hear a case impartially. But a party challenging the impartiality of a judge must
overcome a heavy presumption of judicial impartiality.” Id. (citations and quotation marks
omitted). Generally, “the challenger must prove that a judge harbors actual bias or prejudice for
or against a party or attorney that is both personal and extrajudicial.” Id.
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When circumstances present a probability of actual bias too high to be constitutionally
tolerable, due process requires judicial disqualification without showing actual prejudice, but
only in the most extreme cases. Such circumstances include: “(1) when the judge has a
pecuniary interest in the outcome; (2) when the judge has been the subject of personal abuse or
criticism from the party before him; (3) when the judge is enmeshed in other matters involving
the complaining party; or (4) when the judge might have prejudged the case because of having
previously acted as an accuser, fact-finder, or initial decisionmaker.” Van Buren Twp, supra at
599-600. None of these circumstances exist in this case and there was no allegation of any
circumstance of similar caliber. Therefore, plaintiff cannot avoid the requirement of showing
actual personal bias.
The evidence on which plaintiff relied to show bias was Judge Baxter’s remarks at the
August 31, 2005, settlement conference. Plaintiff contends that the remarks coerced her into
settling the case.1 We agree with the chief judge that even if Judge Baxter made the remarks
alleged by plaintiff, none suggest extrajudicial bias. Plaintiff failed to overcome the heavy
presumption of judicial impartiality. Accordingly, the chief judge did not abuse his discretion in
denying plaintiff’s motion to disqualify Judge Baxter.
Affirmed.
/s/ Michael J. Talbot
/s/ Brian K. Zahra
/s/ Patrick M. Meter
1
On appeal, plaintiff refers to additional circumstances at subsequent proceedings. However,
that evidence was not before the chief judge at the time he made his decision. Thus, it cannot
form a basis for challenging the chief judge’s ruling.
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