ROBERT ALAN MACDONALD V CURTIS KARL KOCH
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT ALAN MACDONALD,
UNPUBLISHED
June 18, 2009
Plaintiff-Appellant,
v
No. 285371
Wayne Circuit Court
LC No. 06-625179-NF
CURTIS KARL KOCH and NORANDEX
REYNOLDS DISTRIBUTION COMPANY,
Defendants-Appellees,
and
MICHIGAN EDUCATION EMPLOYEES
MUTUAL INSURANCE COMPANY,
Defendant.
Before: Borrello, P.J., and Meter and Stephens, JJ.
PER CURIAM.
In this automobile negligence action, plaintiff appeals as of right from an order granting
defendants-appellees’ motion for summary disposition under MCR 2.116(C)(10). We affirm in
part, reverse in part, and remand for further proceedings.
In September 2006, plaintiff filed a complaint alleging that defendant-appellee Curtis
Karl Koch1 accidentally drove a vehicle into plaintiff’s vehicle in September 2005 and that
plaintiff sustained resultant injuries, including:
a. Injury to his cervical and lumbosacral back including muscle spasm[s];
1
Defendant-appellee Norandex Reynolds Distribution Company owned the vehicle that Koch
was driving at the time of the accident. The term “defendants” will be used in this opinion to
refer to Koch and Norandex, collectively.
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b. Aggravation of pre-existing arthritic condition resulting in muscle spasms and
radiculpathy [sic, radiculopathy]; [and]
c. Traumatic brain injury resulting in diminished cognitive abilities and
emotional/behavioral sequelae[.]
In February 2008, defendants moved for summary disposition under MCR 2.116(C)(10),
citing Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004), and arguing that plaintiff had
not met the no-fault threshold contained in MCL 500.3135(1)2 because the accident-related
injuries had not affected his general ability to lead his normal life. Defendants also alleged that
there was no evidence of a serious neurological injury and that plaintiff’s case therefore could
not be “saved” by virtue of MCL 500.3135(2)(a)(ii). Plaintiff responded that (1) he suffered an
objectively manifested injury to his neck that affected his general ability to lead his normal life
and (2) he suffered a closed-head injury that “may be a serious neurological injury under MCL
500.3135(2)(a)(ii).” A motion hearing took place in April 2008, and the trial court granted
defendants’ motion, stating that plaintiff’s general ability to lead his normal life had not been
affected by the accident and that his lawsuit therefore could not proceed. The court did not
specifically mention the alleged head injury. Plaintiff moved for reconsideration, pointing out,
among other things, that the alleged head injury required the case to proceed to a jury. The trial
court denied the motion without elaboration.
On appeal, plaintiff first argues that the trial court erroneously evaluated the evidence of
a neurological injury and that summary disposition was inappropriate, in light of MCL
500.3135(2)(a)(ii). “We review de novo a trial court’s ruling on a motion for summary
disposition.” Maskery v Univ of Michigan Bd of Regents, 468 Mich 609, 613; 664 NW2d 165
(2003). In evaluating a summary disposition motion brought under MCR 2.116(C)(10), a court
considers the “affidavits, pleadings, depositions, admissions, and other evidence submitted by
the parties” in the light most favorable to the opposing party. Corley v Detroit Bd of Ed, 470
Mich 274, 278; 681 NW2d 342 (2004). “Where the proffered evidence fails to establish a
genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of
law.” Id.
MCL 500.3135 states, in 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:
2
The pertinent portions of MCL 500.3135 are set forth later in this opinion.
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(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. However, for a closed-head injury, a question of fact for
the jury is created if a licensed allopathic or osteopathic physician who regularly
diagnoses or treats closed-head injuries testifies under oath that there may be a
serious neurological injury. [Emphasis added.]
As noted in Minter v Grand Rapids, 275 Mich App 220, 227; 739 NW2d 108 (2007), rev’d on
other grounds 480 Mich 1182 (2008),3 “[i]f a properly qualified doctor testifies ‘that there may
be a serious neurological injury,’ there would automatically be a jury question” (emphasis in
original).
Here, plaintiff focuses on affidavits filed by Mary Ann Guyon, M.D., and Gerald A.
Shiener, M.D., arguing that these affidavits sufficed to create a jury question under MCL
500.3135(2)(a)(ii). Dr. Guyon, who is board-certified in physical medicine and rehabilitation,
stated that she “regularly diagnose[s] or treat[s] individuals with back, neck and head injuries,
including mild traumatic brain injuries.” She stated that she evaluated plaintiff and noted the
following on November 3, 2005:
-Seems a trifle dazed
-Mental status impaired
-Word finding problems
-Slow speech
-Mild dysarthria [a motor speech disorder]
-Tenderness at neck to rhomboids
-Decreased ROM of neck
3
The Supreme Court in Minter disagreed with the Court of Appeals regarding whether the
plaintiff’s closed-head injury satisfied the no-fault threshold, but it did not disturb the Court’s
statement concerning an “automatic” jury question. See Minter v Grand Rapids, 480 Mich 1182;
747 NW2d 229 (2008).
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-Positive Spurling [this refers to a test for the evaluation of cervical spine
radiculopathy]
-Decreased ROM right shoulder
-Decreased strength in right wrist and hand
-Slight decrease in sensation over right deltoid
-Tenderness to rhomboid and right deltoid muscle
-Balance and coordination impaired on right
-Decreased balance right heel/toe walking
-Decreased single leg stance on right
-Decreased balance on right with tandem gait
Dr. Guyon stated that she diagnosed plaintiff with, among other things, “[m]ild traumatic brain
injury” as a result of the accident. Later in the affidavit, she stated that plaintiff “sustained a
closed-head injury that is a serious neurological injury resulting in severe consequences.” She
indicated that plaintiff
is permanently, medically restricted from activities that involve rapid verbal
instructions because [he] needs an excessive amount of time to process
information and figure things out, as his traumatic brain injury prohibits him from
thinking when he is rushed.
Dr. Shiener, a psychiatrist, indicated that he regularly diagnoses or treats individuals with
closed-head injuries. Dr. Shiener stated, in part:
Review of medial records and examination reveals psychomotor slowing,
paucity of thought, constricted affect, depressed mood with a somatic trend to his
conversation. He is suffering from a combination of the effects of brain damage
sustained in the motor vehicle accident complicated by a depressive reaction as a
result of the chronic and unremitting pain that he has experienced.
***
A careful review of his psychological history reveals no other factors
capable of presenting with a pattern of impairment such as he manifests other than
a reaction to traumatic brain injury. A careful review of his psychosocial history
reveals no other factors capable of causing a symptom complex of this type. I
would therefore conclude that his current pattern of decompensation is a direct
result of injuries sustained in the September 12, 2005 motor vehicle accident.
Dr. Shiener stated that plaintiff, as a result of the accident, “sustained a closed-head injury that
may be a serious neurological injury resulting in severe consequences.”
-4-
The affidavits of Dr. Guyon and Dr. Shiener did indeed create a jury question under MCL
500.3135(2)(a)(ii). The affidavits indicated that plaintiff may have sustained a serious
neurological injury as a result of the accident.
Citing Churchman v Rickerson, 240 Mich App 223; 611 NW2d 333 (2000), defendants
contend that plaintiff presented insufficient evidence of a “serious” injury. In Churchman, supra
at 230, the Court stated that the statute does not define “serious” but “the plain language of the
statute requires some indication by the doctor providing testimony that the injury sustained by
the plaintiff was severe.”4 The Churchman panel indicated that, in that case, the affidavit in
question did not address the degree of the alleged injury and therefore did not satisfy the no-fault
threshold. Id. at 231. Here, in contrast, Dr. Guyon opined that plaintiff suffered a “serious
neurological injury resulting in severe consequences.” She stated that he “sustained a traumatic
brain injury with residual right hemisparesis, mild dysphasia, and memory deficits, as well as a
probable partial complex seizure disorder as a result of the . . . accident.” Dr. Guyon indicated
that plaintiff “needs an excessive amount of time to process information and figure things out, as
his traumatic brain injury prohibits him from thinking when he is rushed.” Dr. Shiener opined
that plaintiff suffered a closed-head injury “that may be a serious neurological injury resulting in
severe consequences.” He stated that plaintiff exhibited “psychomotor slowing, paucity of
thought, [and] constricted affect,” among other things. Given these affidavits, we disagree with
defendants’ allegation that there was insufficient evidence of a “serious” injury to satisfy the nofault threshold.
Defendants also contend that there was insufficient evidence of causation. We disagree.
While it is true that there was evidence that plaintiff obtained fairly low scholastic grades even
before the accident, Dr. Shiener, in particular, opined that plaintiff’s current cognitive
impairment must have resulted from the motor vehicle accident, in light of his psychosocial
history. Dr. Guyon also stated that plaintiff sustained a brain injury “secondary to motor vehicle
accident . . . .” Accordingly, there was sufficient evidence of causation.
Defendants also briefly suggest that Dr. Guyon was not qualified to offer an opinion in
this case because she "only works with ‘mild traumatic brain injuries’ (as opposed to the
statutorily required ‘serious neurological injuries’) . . . .” Defendants, however, mischaracterize
the statutory language. MCL 500.3135(2)(a)(ii) states that the physician in question must
“regularly diagnose[] or treat[] closed-head injuries . . . .” It does not impose a requirement that
the physician regularly treat “serious neurological injuries.”
Defendants also emphasize that Dr. Shiener merely stated that plaintiff may be suffering
from a serious neurological injury. That, however, is all the statute requires. Again, MCL
500.3135(2)(a)(ii) states: “However, for a closed-head injury, a question of fact for the jury is
created if a licensed allopathic or osteopathic physician who regularly diagnoses or treats closed-
4
Given the statutory language, presumably the Court meant to say that there must be some
indication by the doctor that the injury may be severe.
-5-
head injuries testifies under oath that there may be a serious neurological injury” (emphasis
added).
Given the evidence presented, the trial court erred in granting defendants’ motion for
summary disposition because plaintiff created a question of fact under MCL 500.3135(2)(a)(ii).5
Plaintiff next contends that the trial court erred in granting defendants’ motion for
summary disposition because his neck and closed-head injuries have, contrary to the trial court’s
conclusion, affected his general ability to lead his normal life.
As noted, MCL 500.3135(1) states that “[a] person remains subject to tort liability for
noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle . . . if
the injured person has suffered . . . serious impairment of body function . . . .” MCL 500.3135(7)
states that “‘serious impairment of 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.” Interpreting this statue, the Supreme Court in Kreiner, supra at 132-133, stated:
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 minimis effect would not, as
objectively viewed, affect the plaintiff's “general ability” to lead his life.
[Emphasis in original.]
Kreiner went on to state:
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. [Id. at 133-134.]
David Silbert, a chiropractor, indicated in an affidavit that plaintiff, as a result of the
accident, “is now permanently, medically restricted from lifting greater than 8-10 lbs in a
5
Given our resolution of this issue, we need not address plaintiff’s appellate argument
concerning the trial court’s denial of plaintiff’s motion for reconsideration.
-6-
repetitive manner, driving more than 1 ½ hours, reaching, pulling, pushing, bending, or
twisting.” Dr. Guyon stated in her affidavit:
32. Prior to September 12, 2005, despite a disabling right knee injury
which restricted [plaintiff] from kneeling, squatting and walking long distances,
[plaintiff] was able to sit for long period of time, drive long distances, play his
guitars, dress himself without difficulty, ride his bicycle on a regular basis,
engage in sexual activity on a regular basis and was under no lifting restrictions.
33. In my opinion, based upon a reasonable degree of medical certainty,
as a result of the aforementioned cervical whiplash injury, [plaintiff] is
permanently, medically restricted from kneeling, squatting, and walking distances
beyond ½ to 1 block.
As noted earlier, Dr. Guyon also indicated that plaintiff is permanently restricted “from activities
that involve rapid verbal instructions” as a result of injuries sustained in the accident.
At his deposition, plaintiff admitted that he had a preexisting knee injury that restricted
him from kneeling and squatting. Plaintiff stated that he is unable to play one of his five guitars
because of the accident. He also stated that he went from having sex before the accident three to
seven times a week to having sex “once a month or less” because of pain in his neck. Plaintiff
testified that he has memory problems since the accident and also has been having trouble
reading. He obtained a full-time job for a time in December 2006 but stated that he “couldn’t”
continue with it. However, he had been on disability benefits before the accident, because of his
knee problems. Plaintiff stated that, because of the accident:
I can’t remember my music. I probably have two or three hundred songs
in my repatoire [sic] that I can’t basically remember more than a couple at a time,
which is my hobby and I can’t, my other hobby was bicycle riding, and I can’t do
that on a regular basis any more.
Given the facts as presented, we simply cannot conclude that the trial court erred in
finding that plaintiff presented insufficient evidence that his injuries affected his general ability
to lead his normal life. Although the evidence suggested that plaintiff has trouble working as a
result of the accident, he also had work difficulties before the accident. Moreover, while the
evidence suggested that plaintiff has difficulty performing certain activities to the same degree as
he did before the accident, he still is able to perform them. As noted in Kreiner, supra at 131,
“minor changes in how a person performs a specific activity may not change the fact that the
person may still ‘generally’ be able to perform that activity.” We find no basis for reversal with
regard to the trial court’s findings concerning whether plaintiff’s injuries affected his general
ability to lead his normal life.6
6
Of course, as noted earlier, whether plaintiff suffered a “serious impairment of body function”
as a result of a closed-head injury and possibly serious neurological consequences is a question
for the jury, in light of the evidence presented.
-7-
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Stephen L. Borrello
/s/ Patrick M. Meter
/s/ Cynthia Diane Stephens
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