Estate of Jawad Jumaa v. Prime Healthcare Services-Garden City LLC ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
NAWAL DAHER and MOHAMAD JOMAA, Co- FOR PUBLICATION
Personal Representatives of the ESTATE OF December 1, 2022
JAWAD JUMAA, also known as the ESTATE OF 9:40 a.m.
JAWAD JOMAA,
Plaintiffs-Appellees,
v No. 358209
Wayne Circuit Court
PRIME HEALTHCARE SERVICES-GARDEN LC No. 20-004169-NH
CITY, LLC, doing business as GARDEN CITY
HOSPITAL, KELLY W. WELSH, D.O., and
MEAGAN SHADY, D.O.,
Defendants-Appellants.
Before: RONAYNE KRAUSE, P.J., and JANSEN and SWARTZLE, JJ.
RONAYNE KRAUSE, P.J.
In this medical malpractice action under the wrongful-death act, MCL 600.2922,
defendants appeal by leave granted1 the trial court’s denial of defendants’ motion for partial
summary disposition, pursuant to MCR 2.116(C)(8) (failure to state a claim upon which relief can
be granted) and MCR 2.116(C)(10) (no genuine issue of material fact). At least for purposes of
summary disposition, it is not disputed that the decedent, Jawad Jumaa, who was then 13 years
old, died of bacterial meningitis shortly after being treated by defendants. Plaintiffs allege that
defendants committed medical malpractice by failing to diagnose and treat Jawad’s bacterial
meningitis. Defendants moved for summary disposition, arguing that plaintiff’s claims for lost
future earnings were speculative. The trial court disagreed. We affirm.
1
Estate of Jawad Jumaa v Prime Healthcare Services-Garden City, LLC, unpublished order of the
Court of Appeals, entered October 13, 2021 (Docket No. 358209).
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I. STANDARD OF REVIEW
A grant or denial of summary disposition is reviewed de novo on the basis of the entire
record to determine if the moving party is entitled to judgment as a matter of law. Maiden v
Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). When reviewing a motion under MCR
2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all evidence
submitted by the parties in the light most favorable to the non-moving party and grants summary
disposition only where the evidence fails to establish a genuine issue regarding any material fact.
Id. at 120. A motion brought under MCR 2.116(C)(8) should be granted only where the complaint
is so legally deficient that recovery would be impossible even if all well-pleaded facts were true
and construed in the light most favorable to the non-moving party. Id. at 119. Only the pleadings
may be considered when deciding a motion under MCR 2.116(C)(8). Id. at 119-120. Whether a
particular kind of damages is recoverable for a given cause of action is a question of law, which
we review de novo. See Price v High Pointe Oil Co, Inc, 493 Mich 238, 242; 82 NW2d 660(2013). The interpretation and application of statutes, rules, and legal doctrines is reviewed de
novo. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008).
II. WRONGFUL DEATH DAMAGES
Pursuant to MCL 600.2921, “[a]ll actions and claims survive death.” However, “[a]ctions
on claims for injuries which result in death shall not be prosecuted after the death of the injured
person except pursuant to [the wrongful-death statute, MCL 600.2922].” Id. Such claims may be
brought by the personal representative of the decedent’s estate to the same extent the decedent
could have brought those claims if the decedent had survived. MCL 600.2922(1) and (2). The
decedent’s parents are within the class of persons entitled to damages under the wrongful-death
statute. MCL 600.2922(3)(a). Pursuant to MCL 600.2922(6),
In every action under this section, the court or jury may award damages as the court
or jury shall consider fair and equitable, under all the circumstances including
reasonable medical, hospital, funeral, and burial expenses for which the estate is
liable; 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; and damages for the loss of financial support and the loss of the
society and companionship of the deceased.
Our Supreme Court has explained that “the wrongful-death act is essentially a ‘filter’ through
which the underlying claim may proceed,” noting that a wrongful-death action is not created upon
the death of the decedent, but rather survives the death of the decedent. Wesche v Mecosta Co
Road Comm, 480 Mich 75, 88-89; 746 NW2d 847 (2008).
A. ENTITLEMENT TO DAMAGES
In Wesche, our Supreme Court explained that a wrongful-death action is a derivative claim
brought by a decedent’s personal representative in the decedent’s shoes, the touchstone being
whether the decedent could have maintained the action if death had not occurred. Wesche, 480
Mich at 90-91. Our Supreme Court explicitly described Endykiewicz v State Highway Comm, 414
Mich 377; 324 NW2d 755 (1982), as having espoused “a repudiated understanding of the
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wrongful-death act” to the extent the Endykiewicz Court described a wrongful-death claim as a
new action brought for the benefit of the beneficiaries named in the wrongful-death statute.
Wesche, 480 Mich at 90.
In Denney v Kent Co Road Comm, 317 Mich App 727, 731-732; 896 NW2d 808 (2016),
this Court explained that although lost earnings are not explicitly specified in MCL 600.2922(6),
the Legislature’s use of the word “including” meant that the enumerated list of kinds of damages
available is not exhaustive; “[t]herefore, damages for lost earnings are allowed under the wrongful-
death statute.” In Denney, the decedent could have brought a claim sounding in negligence under
the highway exception to governmental immunity for lost earnings resulting from bodily injury
that the decedent suffered when two potholes caused the decedent to lose control of his motorcycle.
Id. at 729, 735-737. Under the circumstances of that case, this Court agreed that a claim for lost
financial support could not have been brought under the highway exception. Id. at 736. However,
this Court observed that “a claim for lost financial support under the wrongful-death statute is not
the same as a claim for lost earnings,” the former being a claim brought by a person who depended
upon the decedent, and the latter being a claim brought by the decedent on his or her own behalf.
Id. at 736-737. “Because the damages are distinct, the fact that the wrongful-death statute allows
for recovery of lost financial support does not change the character of plaintiff's claim for damages
for the decedent's lost earnings.” Id. at 737. This Court further expressly rejected the argument
that the distribution of damages to the decedent’s beneficiaries rather than to the estate altered its
analysis. Id.
Defendants argue that the Denney Court’s interpretation of MCL 600.2922(6)
irreconcilably conflicts with precedent from our Supreme Court. Under MCR 7.215(J)(1),
however, “[a] panel of the Court of Appeals must follow the rule of law established by a prior
published decision of the Court of Appeals issued on or after November 1, 1990, that has not been
reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals as
provided in this rule.” We observe that Denney has not itself been overturned by our Supreme
Court. Furthermore, the relevant legal principle from Denney has also not been overturned by our
Supreme Court. Nevertheless, defendants argue that Denney was wrongly decided at the time
pursuant to Baker v Slack, 319 Mich 703; 30 NW2d 403 (1948). We disagree.
In Baker, our Supreme Court addressed whether, under a predecessor to the current
wrongful-death statute, the decedent’s adult son, with whom the decedent lived, could recover
damages for “pecuniary injury as the result of [the decedent’s] death.” Baker, 319 Mich at 705-
706. “No testimony was introduced to establish that anyone was or had been dependent upon [the]
decedent for support or maintenance or that there was anyone to whom she was morally or legally
obligated to contribute.” Id. at 706. In fact, to the contrary, the decedent was dependent upon the
son, although she did have some “established earning capacity.” Id. at 707-708. At that time, the
applicable statute provided:
Every such action shall be brought by, and in the names of, the personal
representatives of such deceased person, and in every action the court or jury may
give such damages, as, the court or jury, shall deem fair and just, with reference to
the pecuniary injury resulting from such death, to those persons who may be
entitled to such damages when recovered and also damages for the reasonable
medical, hospital, funeral and burial expenses for which the estate is liable and
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reasonable compensation for the pain and suffering, while conscious, undergone by
such deceased person during the period intervening between the time of the
inflicting of such injuries and his death . . . [1940 CL Supp 14062; 1939 PA 297,
§ 2.]
Our Supreme Court interpreted the above language as providing for “ ‘pecuniary injury’ to [the]
decedent’s surviving spouse or next of kin,” which the Court observed “must be predicated upon
the existence of some next of kin having a legally enforceable claim to support or maintenance by
[the] deceased.” Baker, 319 Mich at 714.
Critically, as discussed, our Supreme Court has explained that a wrongful-death action used
to be construed as providing a new cause of action for the benefit of the beneficiaries. Wesche,
480 Mich at 90. The obsolete understanding of the nature of a wrongful-death action would be
consistent with the Baker Court’s analysis and holding. However, although not expressly cited in
Wesche, our Supreme Court has necessarily—if implicitly—overruled the fundamental principle
underlying the analysis and holding in Baker. We recognize that we are “bound to follow decisions
by [our Supreme] Court except where those decisions have clearly been overruled or superseded,”
and we may not anticipate that a decision from our Supreme Court will be overturned. Associated
Builders & Contractors v City of Lansing, 499 Mich 177, 191-192; 880 NW2d 765 (2016)
(emphasis in original). Although “it is not always so easy to determine whether a case has been
‘clearly overruled or superseded’ by intervening changes in the positive law,” such a conclusion
may be easily drawn where “the Legislature has entirely repealed or amended a statute to expressly
repudiate a court decision.” Id. at 191 n 32. The statutory amendment at issue here is less extreme.
Nevertheless, the wrongful-death act, as amended by 1931 PA 297, lacked the “including”
language in the current statute. Thus, when it was considered by the Baker court, the wrongful-
death act was not only understood to provide a fundamentally different kind of cause of action, the
statute lacked the open-ended inclusiveness of the current statute. Either way, Baker has clearly
been overruled or superseded, and it was no longer “good law” long before this Court decided
Denney.
We therefore conclude that Denney is controlling, and pursuant to Denney, plaintiffs may
recover damages for Jawad’s lost future earnings to the same extent Jawad could have recovered
those damages had he survived.
B. CALCULATION OF DAMAGES
“The general rule is that remote, contingent, and speculative damages cannot be recovered
in Michigan in a tort action.” Health Call of Detroit v Atrium Home & Health Care Servs, Inc,
268 Mich App 83, 96; 706 NW2d 843 (2005). Although “there is inherent uncertainty regarding
what the future may hold,” “the measure of damages attributable to the loss of future earnings is
left to the sound judgment of the jury despite the time element being uncertain, and the jury’s
award will not be disturbed if reasonable and within the range of the testimony and proofs
presented.” Id. at 104, citing Vink v House, 336 Mich 292, 296-297; 57 NW2d 887 (1953).
Recovery of damages is not precluded “for lack of precise proof,” nor must a plaintiff provide
“mathematical precision in situations of injury where, from the very nature of the circumstances,
precision is unattainable, particularly in circumstances in which the defendant’s actions created
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the uncertainty.” Hannay v Dep’t of Transp, 497 Mich 45, 79; 860 NW2d 67 (2014) (quotations
omitted).
In an action for medical malpractice, an injured party may recover damages for future
economic losses. MCL 600.1483(2); Taylor v Kent Radiology, 286 Mich App 490, 519; 780
NW2d 900 (2009). “Although economic losses are not defined under MCL 600.1483 or MCL
600.6305,[2] this Court has turned to the definition provided in MCL 600.2945(c) in order to
determine whether a claim for damages in a medical malpractice action should be characterized as
economic or noneconomic losses.” Taylor, 286 Mich App at 519. Under MCL 600.2945(c),
economic losses are defined as “objectively verifiable pecuniary damages arising from . . . loss of
wages, loss of future earnings . . . or other objectively verifiable monetary losses.” In Hannay, our
Supreme Court explained that there was a difference between “work-loss damages” and “loss of
earning capacity damages,” the former being for income a person would have earned, and the latter
being for income a person could have earned. Hannay, 497 Mich at 80-82.
In Hannay, our Supreme Court found evidence of work-loss damages for the plaintiff too
speculative, despite evidence that the plaintiff was fully expected by a dentist and an experienced
dental hygienist to become a dental hygienist, because too many contingencies needed to occur,
such as admission to a dental hygienist program, successful completion of the program, and
passing a licensing exam. Hannay, 497 Mich at 86-88. By necessary implication, loss of earning
capacity permits much greater latitude. See Health Call of Detroit, 268 Mich App at 104.
Nevertheless, the calculation must still be reasonably based on some evidence. See May v William
Beaumont Hosp, 180 Mich App 728, 756; 448 NW2d 497 (1989)
We have found little clear authority in Michigan regarding a claim for a child decedent’s
lost wages or lost earning capacity. An early case did discuss a claim by parents for their child’s
lost earning potential. Lincoln v Detroit & M. Ry Co, 179 Mich 189, 193-195; 146 NW 405 (1914).
However, at that time, “two statutes existed under which an action could be brought in cases of
injury resulting in death: the survival act and the wrongful death act.” Hawkins v Regional Medical
Laboratories, PC, 415 Mich 420, 428; 329 NW2d 729 (1982). The two “claims were mutually
exclusive and the measure of damages was substantially different.” Id. at 430. We find Lincoln
unhelpful because it was decided under a significantly different statutory scheme; furthermore, it
concerned the child’s earning potential during his minority, which would have belonged to the
parents, and it did not discuss whether that earning potential was speculative. Lincoln, 179 Mich
at 193-195. More recently, our Supreme Court discussed parents’ entitlement under the wrongful-
death act for loss of benefits they reasonably expected to receive from a deceased child after the
child’s majority, concluding that a majority of states permitted such recovery. Thompson v
Ogemaw Co Bd of Road Commrs, 357 Mich 482, 488-489; 98 NW2d 620 (1959). The Court noted
that “the most difficult of all questions involved in wrongful death cases” was “how definite must
the evidence bearing upon pecuniary injury be to support a jury award?” Id. at 489-490. The
2
Under MCL 600.6305(1)(b)(ii), a verdict or judgment rendered in a personal injury action shall
include findings regarding any future damages, including “[l]ost wages or earnings or lost earning
capacity and other economic loss.”
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Court concluded that, under the circumstances, there was evidence that the decedent had been
healthy, intelligent, industrious, and had a history of earning money and contributing to family
support, all of which “could reasonably be forecast into the future.” Id. at 491-492.
The issue has also been addressed in other states.3 In Howard v Seidler, 116 Ohio App 3d
800; 689 NE2d 572 (1996), the plaintiff brought a wrongful-death action for the death of her 11-
year-old son, Vencinn, who died after being struck by an automobile. The plaintiff argued on
appeal that the trial court erred by not allowing the jury to consider awarding damages for loss of
the child’s expected financial contributions to his mother’s support. Id. at 808-809. The court
held that, pursuant to Ohio law and precedent, parents were entitled to recover damages based on
a minor child’s lost future earning capacity, even if the child had never been gainfully employed;
however, the trier of fact must consider “knowledge of the age, sex, and physical and mental
characteristics of the child.” Id. at 810-811. In Howard, the court found that “testimony regarding
Vencinn’s age, mental and physical characteristics, activities, and plans for his future,” and
testimony regarding Vencinn’s sister’s financial contributions to their mother’s support, was
sufficient to create an issue for the jury “as to whether Vencinn would have provided support to
his family members, particularly his mother, after emancipation, and the dollar amount of that
support.” Id. at 812. The court also concluded that the trial court erred by excluding testimony
from an economics expert to establish the decedent’s lost future earnings. Id. at 807, 812-813.
The court stated:
As a matter of course, a jury must weigh evidence in determining the
probability of lost future earnings of a decedent, whether that decedent be an adult
with a wage earning history or a child too young to have been a wage earner at the
time of death. Under the facts of the instant case, there was evidence that Vencinn
was a normal eleven-year-old boy who had a good relationship with his family and
who had aspirations to do something with his life in adulthood. There was clear
evidence that his sister was well educated and well employed. There was also
evidence that his sister provided financial support to Vencinn’s mother. Upon these
facts, there clearly was a foundation laid for the issue of whether Vencinn would
have also provided support in adulthood to his mother.
Rather than foreclosing evidence on this issue, in our view, the trial court
should have permitted the development of testimony on this issue, by all parties, so
that when the time came for deliberation, the jury would have had all it needed to
make its factual determinations and to accept or reject, as it saw fit, the conclusions
of the witnesses. The exclusion of [the expert’s] testimony, under the facts of this
case, was reversible error. [Id. at 813.]
In Mecca v Lukasik, 366 Pa Super 149, 154; 530 A2d 1334 (1987), several teenagers were
killed in an automobile accident. At issue was, in part, whether an expert’s testimony regarding
the future earning potentials of the deceased teenagers was impermissibly speculative. Id. at 158-
3
“Caselaw from sister states and federal courts is not binding precedent but may be relied on for
its persuasive value.” Haydaw v Farm Bureau Ins Co, 332 Mich App 719, 727 n 5; 957 NW2d
858 (2020).
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159. The plaintiffs introduced evidence of the decedents’ educational and career plans, including
one girl’s expectation to complete college and medical school. Id. at 159-160. The court
acknowledged the difficulty of “project[ing] future wage loss of a deceased child,” but found that
economic expert’s projections were supported by testimony regarding the decedents’ parents’ and
siblings’ careers and academic achievements. Id. at 160-161.
We think the above cases establish that a child’s expected future earning potential is not
inherently too speculative to permit recovery. The touchstone is whether that future earning
potential can be proven with reasonable certainty based on the child’s unique and known traits and
abilities. There is no reason why the child must have an employment history. We decline to
specify how old is “old enough,” because different people mature at different rates, so that inquiry
will inevitably depend on the specific child at issue. Nevertheless, it is well-known that at least
by the end of middle school, it is common for teachers or other adults in a child’s life to perceive
when a child shows promise in a field, has any particular aspirations or strengths, displays
developed personality characteristics such as conscientiousness or the kind of social adeptness that
would likely evolve into adult networking skills, and so on. Furthermore, it is also well-known
that a child’s environment, including the child’s parents, school system, general area of residence,
participation in extracurricular activities, exposure to traumas or role models, and similar extrinsic
influences will affect the child’s future earning potential. We do not purport to set forth an
exhaustive list of characteristics and influences, nor do we suggest that any of the above
characteristics and influences are necessary. We hold only that it seems highly likely that the
future earning potential of a 13-year-old can be proven with reasonable certainty based on personal
characteristics and influences known at the time, and we unequivocally reject the proposition that
the future earning potential of a 13-year-old categorically cannot be proven with reasonable
certainty.
We further express no opinion regarding Jawad specifically. We granted leave to appeal
limited to the issues in defendants’ application, which in turn was limited to the argument that lost
future earning potential was inherently impermissible or speculative for a 13-year-old who was
neither working nor supporting anyone. We reject defendants’ argument. The trial court therefore
correctly denied defendants’ motion for summary disposition. Whether Jawad’s future earning
potential can be proven with reasonable certainty is a matter for the parties to address in the trial
court on remand.
Affirmed. We direct that the parties shall bear their own costs. MCR 7.219(A).
/s/ Amy Ronayne Krause
/s/ Kathleen Jansen
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