GLENN FORGETTE V GAIL ANN JONES
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STATE OF MICHIGAN
COURT OF APPEALS
GLENN FORGETTE,
UNPUBLISHED
March 31, 2009
Plaintiff-Appellee,
v
GAIL ANN JONES and BILL JONES
ENTERPRISES, INC., d/b/a METRO AIRPORT
TRUCK,
No. 281317
Wayne Circuit Court
LC No. 06-602109-NI
Defendants-Appellants.
Before: Saad, C.J., and Bandstra and Hoekstra, JJ.
PER CURIAM.
Defendants appeal as of right the judgment in favor of plaintiff in this action to recover
noneconomic damages under the no-fault act, MCL 500.3135, for a serious impairment of body
function arising from an automobile/bicycle accident. We affirm.
On July 26, 2004, defendant Gail Jones was driving a motor vehicle owned by defendant
Bill Jones Enterprises, Inc., when she struck plaintiff as he was riding a bicycle. Plaintiff alleged
that he injured his lower back, right wrist, and left shoulder. Defendants argue that the evidence
failed to show that plaintiff’s injuries affected his general ability to lead his normal life and,
therefore, the trial court erred by denying their motion for a directed verdict and posttrial motion
for JNOV. We disagree.
We review a trial court’s decision on a motion for a directed verdict de novo. Sniecinski
v Blue Cross & Blue Shield of Michigan, 469 Mich 124, 131; 666 NW2d 186 (2003). We
consider the evidence presented up to the time of the motion in the light most favorable to
plaintiff, granting every reasonable inference and resolving any conflict in the evidence in
plaintiff’s favor, to decide whether a question of fact existed. Thomas v McGinnis, 239 Mich
App 636, 643-644; 609 NW2d 222 (2000). In doing so, we recognize the jury’s unique
opportunity to observe the witnesses and the jury’s responsibility to determine the credibility and
weight of the witnesses’ testimony. Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 491;
668 NW2d 402 (2003). We also review de novo a trial court’s decision regarding a motion for
judgment notwithstanding the verdict (JNOV). Morinelli v Provident Life & Accident Ins Co,
242 Mich App 255, 260; 617 NW2d 777 (2000). “A motion for JNOV should be granted only
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when there was insufficient evidence presented to create an issue for the jury.” Pontiac School
Dist v Miller, Canfield, Paddock & Stone, 221 Mich App 602, 612; 563 NW2d 693 (1997).
MCL 500.3135 provides, in pertinent part:
(1) A person remains subject to tort liability for noneconomic loss caused
by his or her ownership, maintenance, or use of a motor vehicle only if the injured
person has suffered death, serious impairment of body function, or permanent
serious disfigurement.
(2) For a cause of action for damages pursuant to subsection (1) filed on
or after July 26, 1996, all of the following apply:
(a) The issues of whether an injured person has suffered serious
impairment of body function or permanent serious disfigurement are questions of
law for the court if the court finds either of the following:
(i) There is no factual dispute concerning the nature and extent of the
person’s injuries.
(ii) There is a factual dispute concerning the nature and extent of the
person’s injuries, but the dispute is not material to the determination as to whether
the person has suffered a serious impairment of body function or permanent
serious disfigurement. . . .
***
(7) As used in this section, “serious impairment of a body function”
means an objectively manifested impairment of an important body function that
affects the person’s general ability to lead his or her normal life.
Defendants argue that plaintiff failed to establish that his injuries affected his general ability to
lead his normal life. They also argue that there was no material factual dispute concerning the
extent of plaintiff’s injuries and, therefore, the question is one of law, which the trial court
should have resolved by granting their motions for a directed verdict and JNOV.
In Kreiner v Fischer, 471 Mich 109, 130-131; 683 NW2d 611 (2004), our Supreme Court
held that an injury does not generally affect a person’s ability to lead a normal life unless the
objectively manifested impairment of an important body function affects the course of the
person’s life. The Court stated:
Accordingly, the effect of the impairment on the course of a plaintiff’s
entire normal life must be considered. Although some aspects of a plaintiff’s
entire normal life may be interrupted by the impairment, if, despite those
impingements, the course or trajectory of the plaintiff’s normal life has not been
affected, then the plaintiff’s “general ability” to lead his normal life has not been
affected and he does not meet the “serious impairment of body function”
threshold. [Id. at 131.]
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The Court further explained:
If a court finds that an important body function has been impaired, and
that the impairment is objectively manifested, it then must determine if the
impairment affects the plaintiff’s general ability to lead his or her normal life. In
determining whether the course of the plaintiff’s normal life has been affected, a
court should engage in a multifaceted inquiry, comparing the plaintiff’s life before
and after the accident as well as the significance of any affected aspects on the
course of the plaintiff’s overall life. Once this is identified, the court must engage
in an objective analysis regarding whether any difference between the plaintiff’s
pre- and post-accident lifestyle has actually affected the plaintiff’s “general
ability” to conduct the course of his life. Merely “any effect” on the plaintiff’s
life is insufficient because a de minimus effect would not, as objectively viewed,
affect the plaintiff’s “general ability” to lead his life.
The following nonexhaustive list of objective factors may be of assistance
in evaluating whether the plaintiff’s “general ability” to conduct the course of his
normal life has been affected: (a) the nature and extent of the impairment, (b) the
type and length of treatment required, (c) the duration of the impairment, (d) the
extent of any residual impairment, and (e) the prognosis for eventual recovery.
This list of factors is not meant to be exclusive nor are any of the individual
factors meant to be dispositive by themselves. For example, that the duration of
the impairment is short does not necessarily preclude a finding of a “serious
impairment of body function.” On the other hand, that the duration of the
impairment is long does not necessarily mandate a finding of a “serious
impairment of body function.” Instead, in order to determine whether one has
suffered a “serious impairment of body function,” the totality of the circumstances
must be considered, and the ultimate question that must be answered is whether
the impairment “affects the person’s general ability to conduct the course of his or
her normal life.” [Id. at 132-134 (footnotes omitted).]
In a footnote, the Court observed that “[s]elf-imposed restrictions, as opposed to physicianimposed restrictions, based on real or perceived pain” do not establish factor (d), the extent of a
residual impairment. Id. at 133 n 17.
We agree with defendants that plaintiff’s shoulder injury did not establish a threshold
injury. Although Dr. Kevin Sprague testified regarding the nature and extent of the injury, and
plaintiff’s surgery and post-surgical treatments, he did not testify regarding any ongoing effects
from the torn rotator cuff injury. Further, although plaintiff testified regarding how his back and
wrist injuries restrict his ability to participate in athletic and outdoor activities, he did not discuss
how his shoulder injury continues to affect his life.
However, the evidence concerning plaintiff’s back and wrist injuries, and the manner in
which those injuries affected plaintiff’s post-accident lifestyle, was sufficient to establish a
serious impairment of body function. Plaintiff testified that his participation in hunting and
fishing, and his involvement in other athletic and recreational activities, which were a significant
part of his life before the accident, was severely curtailed and restricted because of the physical
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limitations from his injuries. He still rode his bicycle, but only for shorter distances. He tried to
resume his lawn maintenance chores, but was not able to do so because of the pain and he had to
hire a lawn service. Plaintiff testified that his physical activities were an important part of his
life and his identity. Plaintiff’s son testified that plaintiff’s stamina for fishing and hunting was
sharply reduced, causing him to feel frustrated and left out.
The jury could find from the evidence that the non-exhaustive list of factors in Kreiner,
supra at 133, weighed in favor of a finding that the course of plaintiff’s life had been affected by
the accident. With respect to factor (a), the nature and extent of plaintiff’s back and wrist
impairments affect numerous types of motion. Dr. Dean Louis testified that the ability to move
the thumb is crucial to numerous life activities. Also, testimony established that plaintiff’s back
injury affects his ability to sit for prolonged periods.
The jury could also find that factor (b), type and length of treatment involved, weighed in
plaintiff’s favor because he has undergone wrist surgery, and required pain medication and
physical therapy. Further, the evidence showed that plaintiff had limited treatment options, none
of which were satisfactory. Dr. Louis testified that plaintiff’s treatment options for his wrist
injury involved choosing between pain management or surgery to fuse the wrist bones that would
eliminate all movement of the wrist. The unavailability of effective treatments helps establish
the extent of plaintiff’s impairment.
Factors (c), duration of impairment, and (e), prognosis for eventual recovery, weigh in
plaintiff’s favor because Dr. Louis testified that the changes in plaintiff’s wrist were “of such a
magnitude” that he was unlikely to regain his former activity level. Dr. Setti Rengachary
testified that plaintiff would have “ups and downs,” meaning that on some days his pain would
be worse, but on other days it “may be partially managed with pain medications.” There was no
indication that plaintiff would become pain-free, or ever be able to return to his former level of
activity.
With respect to factor (d), extent of residual impairment, the evidence showed that
plaintiff’s limitations arise from the pain he experiences when he exerts his back or wrist.
Defendants contend that plaintiff cannot establish a threshold injury under MCL 500.3135
because his limitations are self-imposed based on pain, rather than physician-imposed.
Defendants rely on footnote 17 in Kreiner, supra at 133 n 17, in which, as noted above, our
Supreme Court indicated that “[s]elf-imposed restrictions, as opposed to physician-imposed
restrictions, based on real or perceived pain do not establish” the extent of residual impairment
referred to in factor (d). However, this Court has further explained that footnote 17 addresses
self-imposed restrictions based on pain, but not physician-imposed restrictions, even when the
physician-imposed restrictions are open-ended and based on the patient’s experience of pain
when performing a particular task. McDanield v Hemker, 268 Mich App 269, 283-284; 707
NW2d 211 (2005). Thus, a physician-imposed restriction based on pain could establish the
extent of the residual injury, especially if the physician pinpointed a physiological basis for the
pain or believes that the patient is truly suffering. Id. at 284-285. Further, footnote 17 “is not a
general proposition enunciated by our Supreme Court, but rather it is tied directly to one factor,
factor d, and the Court emphasized that the enumerated factors are ‘not meant to be exclusive nor
are any of the individual factors meant to be dispositive by themselves.’” Id. at 285, quoting
Kreiner, supra at 133-134.
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Accordingly, simply because there may be self-imposed restrictions based
on pain does not mean that a plaintiff has not established a threshold injury. A
trial court must examine all the evidence presented; consider, if relevant, all the
Kreiner factors; and view “the totality of the circumstances” in determining
whether an impairment has affected “the person’s general ability to lead his or her
normal life” as required by MCL 500.3135(7). [McDanield, supra at 285, citing
Kreiner, supra at 132, 134.]
Applying these principles here, we conclude that defendants were not entitled to a
directed verdict or JNOV based on Kreiner footnote 17. As discussed previously, there was
sufficient evidence presented from which the jury could evaluate factors (a), (b), (c), and (e) in
plaintiff’s favor. Plaintiff’s reliance on self-imposed limitations arising from his pain neither
precludes a finding in his favor with regard to factor (d), nor defeats his entire claim. Although
plaintiff did not introduce evidence of physician-imposed restrictions based on pain, he
introduced evidence that Drs. Louis and Rengachary found a physiological basis for the wrist
and back pain that interfered with plaintiff’s ability to sit, walk, and grasp objects as necessary to
participate in his valued recreational activities. In particular, Dr. Louis testified:
You establish [hand] dominance early in life and develop habit patterns
which are difficult to change. I think anybody on the jury could imagine what it
would be like if you – every time you pinched, it hurt, every time you went to
grab something, it hurt or trying to hold the handlebars, it hurt. So the thumb, in
response to your question, is incredibly important for all that. He has changes all
down that axis, so it’s a real impediment to him.
Similarly, Dr. Rengachary was asked whether plaintiff’s injury would “cause pain that would
slow someone down and prevent him from doing those things [hunting, fishing, sports].” Dr.
Rengachary agreed that “[p]ain is the major factor in this case.” This testimony establishes
medically how plaintiff’s activities involve motions that necessarily cause pain. Dr. Louis’s
testimony that plaintiff’s wrist pain was “a real impediment,” and Dr. Rengachary’s testimony
that plaintiff’s pain would interfere with his activities, establish that plaintiff’s pain does not
merely discourage him from engaging in certain activities, but actually prevents him from doing
so. Furthermore, the totality of circumstances established that plaintiff led a highly active
lifestyle before the accident, that his athletic and outdoor activities gave significant meaning to
his life, and that his injuries forced him to substantially curtail or restrict these activities.
Accordingly, the evidence established a material factual dispute whether plaintiff suffered a
serious impairment of body function within the meaning of MCL 500.3135(7). Consequently,
this was a question properly presented to the jury, rather than one for the court to decide as a
matter of law. MCL 500.3135(2)(a). The trial court properly denied defendants’ motions for a
directed verdict and JNOV with respect to defendants’ claim that plaintiff failed to establish that
the course and trajectory of his life was altered as a result of the accident.
Defendants also argue that they were entitled to a directed verdict or JNOV because
plaintiff failed to establish the existence of an objectively manifested impairment. Defendants
failed to preserve this issue by raising it in their motion for a directed verdict or JNOV in the trial
court. Zdrojewski v Murphy, 254 Mich App 50, 62; 657 NW2d 721 (2002). Therefore,
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defendants must establish a plain error affecting their substantial rights. Rivette v Rose-Molina,
278 Mich App 327, 328; 750 NW2d 603 (2008).
Proof that a plaintiff suffered a serious impairment of a body function requires proof of
an “objectively manifested impairment of an important body function.” MCL 500.3135(7). An
objectively manifested impairment is a “medically identifiable injury or condition that has a
physical basis.” Jackson v Nelson, 252 Mich App 643, 653; 654 NW2d 604 (2002). The
plaintiff must establish that the defendants’ conduct caused the impairment, consistent with the
general elements of proof for negligence claims. Case v Consumers Power Co, 463 Mich 1, 6;
615 NW2d 17 (2000). Defendants argue that plaintiff failed to prove a physical basis for his
impairments that was causally related to the accident. They argue that plaintiff’s experts merely
speculated that he suffered a fracture of the lumbar area of his back and the right wrist, and that
there was no objective evidence of injuries to these areas. They also contend that plaintiff failed
to prove that any impairments of these body areas were caused by the accident. We disagree.
Contrary to defendants’ assertions, Dr. Rengachary’s and Dr. Louis’s testimony
regarding the existence and cause of plaintiff’s back and wrist impairments was not merely
speculative. Dr. Louis testified that plaintiff’s CT scan and arthrogram revealed abnormalities in
the wrist that were associated with a past fracture. He opined, within a reasonable degree of
medical certainty, that plaintiff’s wrist conditions were not a normal part of the aging process.
Dr. Louis also refuted the inference that the lapse in time between the accident and plaintiff’s
attempt to seek treatment for his wrist negated a causal connection. He explained that the
condition worsens with time, and that plaintiff might have been focusing on his rotator cuff
injury before concentrating on the wrist problem because the shoulder injury was a more urgent
problem.
Dr. Rengachary testified that plaintiff had a bony spur and protruding disk in the same
location as the soft tissue injury to plaintiff’s back after the accident; he correlated the bony spur
and disk problem to the photographs of the bruises on plaintiff’s back after the accident. He
explained why the absence of objective proof of a fracture contemporaneous with the accident
did not disprove that the subsequent condition resulted from a fracture suffered during that
accident. This testimony was not speculative, but rather was based on an objective medical
explanation for the progression of a condition and the available data regarding plaintiff’s injuries.
Neither Dr. Rengachary nor Dr. Louis based his finding of a causal connection on the fallacy of
post hoc ergo propter hoc. Both physicians premised their opinions on reasonable inferences
based on their medical knowledge of how injuries develop over time.
Defendants contend that Dr. Louis’s testimony was unreliable because he was the third
wrist specialist who plaintiff saw, and that the two previous physicians did not find a causal
connection between the wrist condition and the accident. Defendants refer to reports by Leo
Ottoni, M.D., a wrist specialist who treated plaintiff’s condition. These reports do not positively
state that plaintiff’s wrist condition was unrelated to the accident. In any event, the weight and
credibility of Dr. Louis’s testimony was for the jury to decide. Phillips v Deihm, 213 Mich App
389, 401-402; 541 NW2d 566 (1995).
Contrary to defendants’ argument, none of plaintiff’s expert witnesses indicated that
plaintiff suffered from a degenerative condition that arose independent of the accident.
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Defendants did not call any witnesses to refute plaintiff’s evidence that he had objectively
manifested injuries in his wrist and back, which were causally related to the accident. Under
these circumstances, defendants were not entitled to a directed verdict or JNOV with respect to
the existence of an objectively manifested injury causally related to the accident.
We affirm.
/s/ Henry William Saad
/s/ Richard A. Bandstra
/s/ Joel P. Hoekstra
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