Robert Campbell v. Dorota Golda ( 2020 )

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
ROBERT CAMPBELL, UNPUBLISHED
February 20, 2020
Plaintiff-Appellant,
v No. 345668
Oakland Circuit Court
DOROTA GOLDA, LC No. 2017-162025-N1
Defendant-Appellee,
and
NATIONWIDE INSURANCE COMPANY OF
AMERICA and ZURICH AMERICAN
INSURANCE COMPANY,
Defendants.
Before: REDFORD, P.J., and CAVANAGH and SERVITTO, JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting summary disposition in favor of defendant,
Dorota Golda, in this third-party no-fault action seeking noneconomic damages. We affirm.
This case arises from a November 19, 2014 automobile accident that took place on M-59
just before the I-75 South entrance ramp. It had recently begun snowing. Plaintiff slowed down
to less than 20 miles per hour in approach to the entrance ramp. Defendant, who was also slowing
in approach to the ramp, struck the rear of plaintiff’s vehicle. Neither plaintiff’s nor defendant’s
airbags deployed. Plaintiff was transported by ambulance to the emergency room, complaining of
low-back and neck pain. He was x-rayed, given pain medication, and released the same day.
Plaintiff had an extensive history of low-back and leg pain due a spinal cord injury
sustained in a 2001 motor vehicle accident. Between 2002 and 2014, plaintiff underwent six low-
back surgeries and had been placed on disabled status by his employer. Plaintiff complained to
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his spinal surgeon that his pain, which had been improving, had worsened following the 2014
accident.
In 2017, plaintiff underwent a seventh low-back surgery and filed this lawsuit alleging
defendant’s negligence and liability for noneconomic damages. Plaintiff testified that his
preaccident lifestyle consisted of attending physical therapy, going on daily walks, doing light
housework, and following sports on television and the internet. He testified that between the
accident and his recovery from the 2017 surgery, all of his normal activities became considerably
more difficult because of “all-encompassing pain.” For a period, he was no longer able to attend
physical therapy or do light housework. He also had increased difficulty sleeping.
Defendant moved for summary disposition under MCR 2.116(C)(10), arguing that (1)
plaintiff’s medical records merely showed a degenerative change to his preexisting condition that
could not reasonably be attributed to the 2014 accident, and (2) plaintiff’s sedentary preaccident
lifestyle had not been affected by the accident. Plaintiff responded that his spinal surgeon had
attributed the aggravation of his condition to the accident and that his medical records and
testimony met his burden of production on the issue of whether his general ability to lead his
normal life was affected.
The trial court granted defendant’s motion for summary disposition, holding that there was
a genuine issue of material fact as to the nature and extent of plaintiff’s injuries, but the dispute
was not material to the issue of whether plaintiff had suffered a serious impairment of an important
body function. The trial court determined that there was no genuine issue of material fact that
plaintiff’s general ability to lead his normal life had not been affected by his impairment; his
“general ability to lead his normal life remains the same.” Accordingly, defendant was entitled to
summary disposition. The trial court did not address defendant’s argument that the accident was
not a cause in fact of plaintiff’s injury. Plaintiff now appeals.
Plaintiff argues that he produced evidence showing that he was unable, for a period, to
perform household chores, go on walks, participate in physical therapy, and enjoy following sports
to the same degree after the accident, which was sufficient to establish an effect on his general
ability to live his normal life. We disagree.
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
McCormick v Carrier, 487 Mich. 180, 188; 795 NW2d 517 (2010).
Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine
issue regarding any material fact and the moving party is entitled to judgment as a
matter of law. A motion pursuant to MCR 2.116(C)(10) is reviewed by considering
the pleadings, admissions, and other evidence submitted by the parties in the light
most favorable to the nonmoving party. A genuine issue of material fact exists
when the record, giving the benefit of reasonable doubt to the opposing party,
leaves open an issue upon which reasonable minds might differ. [Patrick v
Turkelson, 322 Mich. App. 595, 605; 913 NW2d 369 (2018) (internal quotation
marks and citations omitted).]
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When “there is a factual dispute concerning the nature and extent of a person’s injuries,
but the dispute is not material to the determination whether the person has suffered a serious
impairment of a body function,” it is for the court to determine as a matter of law “whether the
injured person has suffered serious impairment of body function . . . .” MCL 500.3135(2)(a)(ii).
In this case, the trial court determined that there was a factual dispute concerning the nature and
extent of plaintiff’s injuries, but that the dispute was immaterial to a serious impairment analysis.
Defendant, relying on plaintiff’s preaccident and postaccident answers to his physician’s “low-
back disability questionaires” and plaintiff’s long history of low-back problems, argued that
plaintiff’s condition was the same before and after the accident. Plaintiff, relying on his testimony
and his physician’s encounter notes, argued that he sustained a new and worse injury in the
accident. Therefore, plaintiff argued, the trial court did not err in determining that reasonable
minds could differ on the nature and extent of his injuries.
“[W]hile an injury is the actual damage or wound, an impairment generally relates to the
effect of that damage.” McCormick, 487 Mich. at 197. “Accordingly, when considering an
impairment, the focus is not on the injuries themselves, but how the injuries affected a particular
body function.” Id. (quotation marks and citation omitted).
MCL 500.3135 provides:
(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.
* * *
(5) As used in this section, “serious impairment of body function” means an
impairment that satisfies all of the following requirements:
(a) It is objectively manifested, meaning it is observable or perceivable from actual
symptoms or conditions by someone other than the injured person.
(b) It is an impairment of an important body function, which is a body function of
great value, significance, or consequence to the injured person.
(c) It affects the injured person’s general ability to lead his or her normal life,
meaning it has had an influence on some of the person’s capacity to live in his or
her normal manner of living. Although temporal considerations may be relevant,
there is no temporal requirement for how long an impairment must last. This
examination is inherently fact and circumstance specific to each injured person,
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must be conducted on a case-by-case basis, and requires comparison of the injured
person’s life before and after the incident.[1]
It is not at issue whether plaintiff met his burden of production as to the first and second
prongs of the McCormick analysis: “(1) an objectively manifested impairment (2) of an important
body function that (3) affects the person’s general ability to lead his or her normal life.”
McCormick, 487 Mich. at 195. As to the third prong, the trial court determined that “[p]laintiff’s
general ability to lead his normal life remains the same.”
Plaintiff’s burden was to produce evidence upon which a reasonable fact-finder could find,
by a preponderance of the evidence, that his impairment “influence[d] some of [his] power or skill,
i.e., [his] capacity, to lead [his] normal life.” Id. at 201. A court must “consider not only whether
the impairment has led the person to completely cease a pre-incident activity or lifestyle element,
but also whether, although a person is able to lead his or her pre-incident normal life, the person’s
general ability to do so was nonetheless affected.” Id. at 202. “In order to make such a
determination, we compare the plaintiff’s life before and after the incident.” Patrick, 322 Mich
App at 614. The question “requires a subjective, person- and fact-specific inquiry that must be
decided on a case-by-case basis.” Id., quoting McCormick, 487 Mich at 202. There is no “temporal
requirement as to how long an impairment must last . . . .” McCormick, 487 Mich. at 203.
Plaintiff argues that a change in his capacity to lead his normal life is demonstrated by his
testimony that he had a more difficult time sleeping, he could not do simple housework for a
period, he could not walk or drive for as long as he used to, and his ability to follow sports was
marred by “all-consuming” pain.
However, plaintiff’s evidence is too vague and conclusory to create a factual dispute
regarding whether his general ability to lead his normal life was affected by his impairment, even
when viewing that evidence in the light most favorable to him. Plaintiff’s daily routine was highly
similar before and after the 2014 accident: he tended to his chronic low-back pain by going to
medical appointments and physical therapy, he took short walks, he occasionally did light
housework, and he followed sports on TV and the internet.
1
On June 11, 2019, MCL 500.3135(5)(a)-(c) was amended “to codify and give full effect to the
opinion of the Michigan supreme court in McCormick v Carrier, 487 Mich. 180 (2010).” 2019 PA
22, enacting § 1. The amendment simply expresses the Legislature’s intent that the holding of
McCormick, 487 Mich. at 180, should not be revisited, as has often been proposed by litigants and
jurists. See, e.g., Patrick v Turkelson, 503 Mich. 901 (2018) (MARKMAN, J., dissenting). The
amended language is included here rather than omitted, even though the events in this case
occurred before the amendment, because the amendment has no substantive impact on this case–
McCormick already governed it before the amendment. See Buhl v Oak Park, __ Mich App __,
__; __ NW2d __ (2019) (Docket No. 340359); slip op at 5 (holding that statute applied
retroactively when “plaintiff could still assert the identical cause of action against defendant, and
the full range of damages previously available to a prevailing plaintiff is unchanged by the
statutory amendment.”).
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Plaintiff’s argument on appeal emphasizes his allegedly decreased capacity to do
housework and take walks after the accident. Plaintiff testified that, before the accident, “[t]here
may have been some very light household type work . . . chores that I would do.” That statement
of his preaccident household duties is so unassured that it is practically indistinguishable from his
characterization of his postaccident duties—that he did “almost [no light household chores] at all.”
Plaintiff’s testimony regarding a change in his capacity to take walks was similarly vague.
Plaintiff did not even recall that walks were a part of his daily routine until defense counsel
reminded him that he had mentioned walks earlier in his deposition. Plaintiff merely asserted that
he “was doing more walking before the accident.” He did not know how far he routinely walked
before the accident. He did not articulate how his walks had changed after the accident.
Plaintiff testified that following sports teams on television and the internet was rendered
unenjoyable by “all-consuming” pain. Again, plaintiff was unable to point to any facts in support
of his assertion. To the contrary, he testified that he attended “[maybe] one or two” baseball games
per year before and after the accident.
Given his inability to explain how his impairment impacted specific activities, plaintiff is
left with the nebulous assertion that increased pain made his already sedentary lifestyle more
arduous after the accident. On February 10, 2014, nine months before the accident, plaintiff
reported to his spinal surgeon that his pain was an 8 to 9 out 10 in his back and a 6 to 8 in his leg.
He reported the same pain levels at multiple postaccident appointments. His preaccident and
postaccident answers to his spinal surgeon’s “low-back pain disability questionnaire” were
identical, with the exception that he reported sleeping “only ¼ of [his] normal amount” after the
accident as opposed to “½ of his normal amount” before the accident. It is simply not possible to
articulate in a fact-specific manner how plaintiff’s normal life, which was already defined by his
impairment before the 2014 accident, changed after the accident. Therefore, the trial court did not
err in concluding that there was no genuine issue of material fact as to whether plaintiff’s
impairment affected his general ability to lead his normal life.
Further, as defendant argued in the trial court and argues on appeal, even if plaintiff had
met his burden of production on the third prong of the McCormick test, it still would have been
appropriate to grant summary disposition to defendant for lack of causation. Although the trial
court did not address defendant’s argument, this Court may affirm a trial court’s grant of summary
disposition on an alternate ground not addressed and decided by the trial court. See Patrick, 322
Mich. App. at 615-616, citing Adell Broadcasting Corp v Apex Media Sales, Inc, 269 Mich. App. 6,
12; 708 NW2d 778 (2005). In this case, the trial court solely focused on the issue of plaintiff’s
impairment and did not address whether defendant’s negligence was a cause in fact of plaintiff’s
injury. Defendant argues that plaintiff cannot establish that his preexisting, degenerative condition
was aggravated or diverted from its normal course by his minor collision with defendant. We
agree.
“Proximate causation is a required element of a negligence claim.” Patrick, 322 Mich. App.
at 616. “[A] court must find that the defendant’s negligence was a cause in fact of the plaintiff’s
injuries before it can hold that the defendant’s negligence was the proximate or legal cause of those
injuries.” Id. (quotation marks and citation omitted). “Establishing cause in fact requires the
plaintiff to present substantial evidence from which a jury may conclude that more likely than not,
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but for the defendant’s conduct, the plaintiff’s injuries would not have occurred.” Id. at 617
(quotation marks and citation omitted).
In 2001, plaintiff sustained a spinal cord injury in a motor vehicle accident. At his
deposition in this case, plaintiff testified that he only had one surgery as a result of that accident.
Medical records tell a different story. In 2002, plaintiff underwent a laminectomy that did not
relieve his discomfort. In 2003, plaintiff underwent a spinal fusion that was also unsuccessful in
relieving his low-back pain. In 2005, a neurosurgeon removed hardware from the 2003 spinal
fusion and performed another laminectomy. Between 2005 and 2006, plaintiff had another surgery
to remove a screw that was too close to a nerve root. In June 2006, plaintiff underwent another
laminectomy. Plaintiff sought second opinions from two surgeons who believed “problems with
the fusion” were to blame for his continuing low-back pain.
Plaintiff underwent a “complex revision,” partial laminectomy, and diskectomy on January
14, 2009. Plaintiff’s postoperative diagnoses were degenerative disk disease, spondylosis, and
pseudarthrosis with postlaminectomy syndrome. In 2013, plaintiff underwent a fifth laminectomy
because of severe and debilitating low-back and leg pain. On February 10, 2014, nine months
before the 2014 accident, plaintiff reported to his spinal surgeon that his pain was 8 to 9 out of 10
in his back and a 6 to 8 out of 10 in his left leg.
Plaintiff was transported to the emergency room by ambulance immediately following the
2014 accident. He was x-rayed, given pain medication, and released the same day. His attending
physician’s summary concludes: “No apparent significant injuries other than musculoskeletal
strain.”
In support of his assertion that the 2014 accident significantly aggravated his preexisting
injury, plaintiff relies on brief notes from his spinal surgeon. Summarizing an October 19, 2015
visit, the surgeon noted that “[plaintiff] sustained a car accident in November 2014 which seemed
to aggravate everything here.” That same summary noted that an MRI “showed degenerative
changes of the discs at L2-L-3 and facet arthritic changes.” On May 5, 2017, plaintiff’s surgeon
submitted a note apparently written in anticipation of litigation that reads, in its entirety: “There
was an objective finding following the auto accident of November 19, 2014 and as a result of the
accident and my findings [that plaintiff] needed surgery and continues to be disabled.”
Simply put, there is no evidence on this record of any traumatic injury traceable to the
2014 accident. Plaintiff had a 13-year preaccident history of severe, debilitating back pain, which
required seven preaccident spinal surgeries. The ER physician, examining plaintiff shortly after
the accident, found “[n]o significant injuries other than musculoskeletal strain.” Plaintiff’s
subjective complaints before and after the accident were substantively identical. Even giving full
credit to the spinal surgeon’s assertion that the accident “seemed to aggravate” plaintiff’s
condition, no reasonable fact-finder could find that plaintiff’s minor collision with defendant more
likely than not caused his injuries. The spinal surgeon’s bare assertion of “an objective finding”
that the 2014 accident required an eighth spinal surgery lacks exactly what it asserts—an objective
basis. The only postaccident changes to plaintiff’s diagnoses were “degenerative” and “arthritic”
in nature. Therefore, defendant was also entitled to summary disposition on the ground that
plaintiff cannot establish that defendant’s negligence was a cause in fact of his injuries.
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Affirmed. Defendant is entitled to costs as the prevailing party. See MCR 7.219(A).
/s/ James Robert Redford
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto
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