CARL WILKINSON V ANTHONY LEE
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STATE OF MICHIGAN
COURT OF APPEALS
CARL WILKINSON and JEANETTE
WILKINSON,
UNPUBLISHED
March 27, 2001
Plaintiffs-Appellees,
v
No. 203218
Oakland Circuit Court
LC No. 94-487015-NI
ANTHONY LEE and GENERAL MOTORS
CORPORATION,
Defendants-Appellants.
ON REMAND
Before: Markey, P.J., and Sawyer and Whitbeck, JJ.
WHITBECK, J. (concurring).
I concur in the majority’s opinion. I would be remiss, however, if I did not comment on
the Supreme Court’s per curiam opinion remanding this case. To me, the critical passage in that
opinion is:
The majority [in Wilkinson v Lee, unpublished per curiam opinion of the Court of
Appeals, issued June 15, 1999 (Docket No. 203218)] erred in focusing on the
underlying brain tumor as the “basic injury” involved in this case. Regardless of
the preexisting condition, recovery is allowed if the trauma caused by the accident
triggered symptoms from that condition.[1]
I can make no sense of the emphasized sentence as it is written. The first clause (“Regardless of
the preexisting condition . . .) appears to instruct us to disregard the preexisting injury entirely.
However, the ending clause (“. . . if the trauma caused by the accident triggered symptoms from
that condition.”) appears to refer us back to that very preexisting injury, thus preventing us from
disregarding it and, perhaps, requiring us to relate the symptoms to the injury. On its face,
therefore, the sentence seems, to me at least, to be internally – and fatally – contradictory. The
metaphor of a squirrel cage comes to mind.
It appears to me that there are two different ways of reconstructing the emphasized
sentence. The first is to omit the first clause and slightly change the ending clause. The sentence
1
Wilkinson v Lee, 463 Mich 388, 395; 617 NW2d 305 (2000) (emphasis supplied).
-1-
would then read: “Recovery is allowed if the trauma caused by the accident triggered symptoms
from a preexisting condition.” This is a sensible reading of the sentence, but it may lead to a
very broad result. It may mean that a plaintiff can recover not only for an injury but also for the
symptoms of an injury. While I do not possess the medical or scientific background to attempt to
distinguish between an injury and the symptoms of an injury, it does seem to me, at least
intuitively, that there is some distinction between the two. The first reconstruction of the
sentence, however, is at least susceptible of being interpreted as obliterating that distinction.2
Thus, under the facts of this case, plaintiff’s symptoms perhaps simply have become the injury.
While this may now be the law in Michigan, I must admit that I have never seen it stated so
baldly in reported decisions of the Supreme Court or this Court.
The second reconstruction of the sentence is considerably less sensible and considerably
more alarming. It is to change the ending clause so that the sentence would read: “Regardless of
the preexisting condition, recovery is allowed if the trauma caused by the accident triggered
symptoms of an injury.” Under this reading, it would make no difference whether the symptoms
related to the preexisting injury and the only inquiry would be as to whether the plaintiff
exhibited symptoms of an injury, indeed any injury. Thus, under the facts of this case, plaintiff
would recover even if there were no relationship between his symptoms and his preexisting brain
tumor. It would be sufficient if he could show that he simply exhibited free-floating “symptoms”
of some injury. I cannot conceive that this is now the law in Michigan on this point.
The analytical fulcrum under circumstances such as those that exist here is causation. For
a person with a pre-existing injury or condition, it is especially important that there be proof that
(1) the person did not suffer certain symptoms before the accident, (2) only the accident could
have caused the symptoms to exist and, (3) the existence of the new symptoms indicates that the
defendant is liable for worsening the condition (that is, the automobile injury is the trauma to the
pre-existing condition, as evidenced by the new symptoms). Under my second reconstruction of
the critical sentence, the element of causation is entirely missing.
I suggest that, at best, we know for certain that on the facts of this case “recovery is
allowed.” Perhaps in some future opinion, the Supreme Court will resolve the application of that
conclusion to other factual situations.
/s/ William C. Whitbeck
2
I recognize that the sentence, as reconstructed, is also susceptible to a different interpretation,
one drawn from the dictionary definition of “symptom.” Merriam-Webster’s Collegiate
Dictionary defines a symptom as “subjective evidence of disease or physical disturbance” or,
more broadly, “something that indicates the presence of bodily disorder.” If used in this manner,
a symptom may be viewed as determining the effect of an injury; the analogy, therefore, would
be to a continuum with the injury at one end and the symptoms at the other. If this is the analogy
the Court meant to imply, I can only observe that this is not clear from either the original
sentence or my reconstruction of that sentence.
-2-
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