Sesha Ramenaden v. Steven James Olds ( 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
SESHA RAMENADEN, UNPUBLISHED
November 5, 2020
Plaintiff-Appellant,
v No. 351526
Oakland Circuit Court
STEVEN JAMES OLDS and JEANA CHRISTINE LC No. 2018-164088-NI
ELMORE,
Defendants-Appellees,
and
LIBERTY MUTUAL INSURANCE COMPANY,
Defendant.
Before: BOONSTRA, P.J., and MARKEY and FORT HOOD, JJ.
PER CURIAM.
In this third-party no-fault action, plaintiff appeals as of right the trial court’s grant of
defendants-appellees’ (defendants) motion in limine, and the subsequent judgments of no cause of
action in their favor. Plaintiff contends on appeal that the trial court should have permitted plaintiff
to testify to the fact that he attended two independent medical examinations in which the physicians
were retained by defendant Olds, but neither defendant called the physicians to testify. Plaintiff
sought to admit that fact into evidence in order to later argue that defendants’ failure to call the
physicians as witnesses permitted the jury to draw an inference that the physicians’ testimony
would have been favorable to plaintiff. Given the specific facts of this case, we disagree and
affirm.
I. FACTUAL BACKGROUND
Plaintiff brought this action against defendants after he was rear-ended by defendant Olds
on March 13, 2017, and later rear-ended by defendant Elmore on June 8, 2017. Plaintiff contended
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that he sustained permanent neck injuries as a result of the accidents. Prior to trial, defendants
brought a motion in limine to exclude plaintiff from referencing two independent medical
examinations that the parties did not intend to introduce as evidence. Plaintiff conceded that he
had no intention of introducing the substance of the examinations as evidence, but contended that
it would be unfair to preclude plaintiff from noting that, at the very least, he attended the medical
examinations. The trial court disagreed, noting that plaintiff could simply call the witnesses to
testify if he wanted to introduce the evidence, and that the mere fact that plaintiff attended medical
examinations absent further information about their results was irrelevant. The court granted
defendants’ motion.
At trial, plaintiff testified and introduced the testimony of two expert witnesses that were
generally favorable to him. Defendants also both testified, and also introduced two expert
witnesses that were favorable to them. At the close of proofs, and with defendant Elmore having
already admitted negligence, the jury found that defendant Olds had acted negligently in the
operation of his vehicle. However, the jury found that neither accident had caused plaintiff’s
injuries, and subsequently, judgments of no cause of action as to both defendants were entered.
Plaintiff now appeals, specifically challenging the trial court’s refusal to allow plaintiff to testify
that he attended the two additional independent medical examinations that were the basis of
defendants’ motion in limine.
II. ANALYSIS
We review a trial court’s discretionary decision to admit or exclude evidence for an abuse
of discretion. Anderson v Progressive Marathon Ins Co, 322 Mich. App. 76, 87; 910 NW2d 691
(2017). “An abuse of discretion occurs when the trial court’s decision to admit or exclude evidence
falls outside the range of reasonable and principled outcomes.” Id. However, the trial court’s
decision on “a close evidentiary question by definition ordinarily cannot be an abuse of discretion.”
Id. (quotation marks and citation omitted). Additionally, errors in the admission or exclusion of
evidence will not warrant appellate relief unless the court’s decision was “inconsistent with
substantial justice,” MCR 2.613, or affected “a substantial right of the party,” MRE 103(a). See
Craig ex rel Craig v Oakwood Hosp, 471 Mich. 67, 76; 684 NW2d 296 (2004).
“To be admissible, evidence must be relevant.” Rock v Crocker, 499 Mich. 247, 256; 884
NW2d 227 (2016), citing MRE 402. “ ‘Relevant evidence’ means evidence having any tendency
to make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” MRE 401. That is, “evidence
is admissible if it is helpful in throwing light on any material point.” People v Aldrich, 246 Mich
App 101, 114; 631 NW2d 67 (2001).
In this case, plaintiff sought to hold defendants liable for noneconomic losses resulting
from the motor vehicle accidents, which, pursuant to MCL 500.3135(1), required him to establish
that he “suffered . . . [a] serious impairment of a body function . . . .” A serious impairment of a
body function is an objectively manifested impairment of an important body function that affects
the person’s general ability to lead his or her normal life. MCL 500.3135(5)(a)-(c). Our Supreme
Court has expounded on the three requirements of MCL 500.3135(5), noting that the statute
requires: “(1) an objectively manifested impairment (observable or perceivable from actual
symptoms or conditions) (2) of an important body function (a body function of value, significance,
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or consequence to the injured person) that (3) affects the person’s general ability to lead his or her
normal life (influences some of the plaintiff’s capacity to live in his or her normal manner of
living).” McCormick v Carrier, 487 Mich. 180, 215; 795 NW2d 517 (2010).
We conclude that the trial court did not abuse its discretion in determining that whether
plaintiff attended two independent medical examinations that were not substantively introduced
into evidence was irrelevant to the above factors. There is simply no connection between
plaintiff’s mere attendance at medical examinations that would make the existence of any of the
above prongs more or less probable absent the examinations being substantively introduced in
some manner or form, and plaintiff was clear before the trial court that he had no intention to either
call the examining physicians to testify or otherwise seek introduction of their reports into
evidence. The connection plaintiff seeks to make is that, because the examining physicians were
hired by defendant Olds and subsequently not called by either defendant to testify, a reasonable
inference can be made that the examinations were unhelpful to the defendants’ case. However,
and as detailed below, while plaintiff is correct that a party is generally permitted to comment on
another party’s failure to produce certain evidence, the specific inference plaintiff sought to
introduce to the jury in this case was impermissible.
As a preliminary matter, we note that both defendants rely on caselaw concerning the
circumstances under which a party may seek a jury instruction regarding adverse presumptions
against an opposing party. See Ward v Consolidated Rail Corp, 472 Mich. 77, 85-86; 693 NW2d
366 (2005); Lagalo v Allied Corp, 233 Mich. App. 514, 519; 592 NW2d 786 (1999). As plaintiff
correctly points out, there is a difference between the adverse-presumption jury instruction, and a
party’s ability to merely suggest to the jury that an inference should be made on the basis of that
party’s interpretation of the evidence. With respect to the jury instruction, the jury may be
instructed that “an adverse inference against a party that has failed to produce evidence” may be
drawn where “(1) the evidence was under the party’s control and could have been produced; (2)
the party lacks a reasonable excuse for its failure to produce the evidence; and (3) the evidence is
material, not merely cumulative, and not equally available to the other party.” Ward, 472 Mich. at
85-86. Defendants argue that it was proper to preclude plaintiff from commenting on defendants’
failure to call the physicians in questions because plaintiff himself could have called the witnesses.
That is, the evidence was not under defendants’ exclusive control. Again, however, that element
is required to be met before a party is entitled to a jury instruction regarding a presumptive
inference, but it is not required when a party merely seeks to comment on the opposing party’s
failure to produce evidence.
In Barringer v Arnold, 358 Mich. 594, 596; 101 NW2d 365 (1960), our Supreme Court
spoke to the distinction between these two concepts. In Barringer, the plaintiff brought suit for
personal injuries sustained in an automobile accident. Id. When neither party produced the
plaintiff’s mother to testify as a witness, who was in the backseat of the plaintiff’s vehicle at the
time of the accident, the trial court gave the following instruction to the jury:
In this case, the record shows that [the plaintiff’s mother] was a passenger in [the
plaintiff’s] auto at the time of the accident and she has not been produced as a
witness nor has her absence been explained. The failure or refusal of a party to
produce evidence within his possession or control raises a presumption that the
evidence, if produced, would have operated against him and in your deliberation in
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this case you are entitled to assume that if [the plaintiff’s mother] were produced as
a witness, her testimony would be unfavorable to the claim of the plaintiff in this
case. [Id. at 601.]
Our Supreme Court held that the trial court’s instruction was reversible error, noting that the
defendant’s counsel knew that the plaintiff’s mother was a passenger in the vehicle, and “might
have subpoenaed her as a witness if they had desired to do so.” Id. The court noted, “At most it
was merely a matter of argument by counsel as to the conclusion that might be drawn from the fact
that [the plaintiff’s mother] was not produced by either party.” Id. at 605. That is, in holding that
the jury instruction itself was erroneous, our Supreme Court specifically noted that a mere
argument by either party to the jury that an inference could be drawn was permissible.
More recently, in Reetz v Kinsman Marine Transit Co, 416 Mich. 97, 109; 330 NW2d 638
(1982), the plaintiff sought to argue that the defendant’s witness was lying, and alleged that if the
witness was telling the truth, the defendants could have “produced . . . other witnesses to the
incident.” The Court noted that this was “permissible even though the same witnesses could have
been produced by both parties.” Id. (emphasis added). As there was no evidence that the witnesses
were not also available to the plaintiff, the defendants also could have argued that the same
inference could be drawn against the plaintiff for failing to produce the same witnesses. Id. at 109
n 24. In reaching its conclusion, our Supreme Court explicitly noted that “it is legitimate to point
out that an opposing party failed to produce evidence that it might have, and consequently the jury
may draw an inference against the opposing party.” Id. at 109.
Our own caselaw has continued to apply this principal. In Troyanowski v Kent City, 175
Mich. App. 217, 222; 437 NW2d 266 (1988), the plaintiff called a witness to testify that alluded to
another witness that plaintiff failed to call. During closing argument, the defendant contended that
the plaintiff did not call the additional witness because that witness was adverse to the plaintiff’s
case. Id. The plaintiff claimed that defense counsel’s statement was erroneous, and sought a
curative instruction. Id. This Court noted:
Plaintiffs cite Barringer v Arnold, 358 Mich. 594, 101 NW2d 365 (1960), for the
proposition that such a comment is improper and requires this Court to reverse the
verdict below. That was not the holding of Barringer, however. Indeed, within the
Barringer opinion the Supreme Court made it clear that comment by counsel on the
failure of a party to call a witness, regardless of who controls the witness, is not
forbidden. Barringer, supra, at 604, 101 NW2d 365, quoting Gibbons v Delta
Contracting Co, 301 Mich. 638, 4 NW2d 39 (1942). More recently, in Reetz v
Kinsman Marine Transit Co, 416 Mich. 97, 330 NW2d 638 (1982), the Supreme
Court cited Barringer in noting that when a witness is available to either party,
counsel may still point out that the opposing party did not call the witness and that
the jury may draw an inference against that party. Id. at 109, 330 NW2d 638. Reetz
is dispositive on this issue. Since the comment was permissible, a curative
instruction was properly denied. [Troyanowski, 175 Mich. App. at 222.]
Even more recently, in Kubisz v Cadillac Gage Textron, Inc, 236 Mich. App. 629; 601 NW2d 160
(1999), overruled on separate grounds by Ormsby v Capital Welding, Inc, 471 Mich. 45, 684 NW2d
320 (2004), this Court quoted Reetz and noted that “it is legitimate to point out that an opposing
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party failed to produce evidence that it might have, and consequently the jury may draw an
inference against the opposing party.”
In short, plaintiff is correct that he should not be prohibited from raising the argument that
defendants’ failure to call certain witness could give rise to an inference that those witnesses were
adverse to defendants’ case. In the same vein, defendants would be entitled to make the same
argument regarding plaintiff’s failure to call those witnesses. However, also central to plaintiff’s
argument for the admission of the evidence in this case is the fact that the independent medical
examiners at issue were retained by defendant Olds. In light of the trial court’s conclusion that
plaintiff’s mere attendance at the medical examinations was irrelevant, plaintiff sought to make
the information more relevant by also introducing the fact that the physicians were initially
obtained by Olds. This is not a permissible practice.
This Court has held that “[t]estimony as to [an] expert’s original employment is not
pertinent to any issue presented, and neither party should be bound by the rejected opinions of
experts employed by him to assist in evaluating his case.” Kissel v Nelson Packing Co, 87 Mich
App 1, 5; 273 NW2d 102 (1978). We further noted that “the credibility of a witness generally may
not be bolstered until attacked, McCormick, Evidence (2d ed.), § 49, p 102, and [saw] no reason
to deviate from th[at] general rule.” Id. See also Laudenslager v Covert, 163 Mich. App. 484, 489-
490; 415 NW2d 254 (1987) (noting that the plaintiff in that case was only permitted to disclose
that certain experts had been originally retained by defendants because defendants had attempted
to impeach the expert through bias). In a more recent unpublished case, we affirmed this principle
and noted that the trial court did not abuse its discretion in prohibiting a plaintiff from disclosing
the original employment of an expert where the defendant had never attempted to impeach the
expert’s credibility. Anderson v Senger, unpublished per curiam opinion of the Court of Appeals,
issued July 26, 2007 (Docket No. 266941), p 5, citing Kissel, 87 Mich. App. at 5.
With all of the above in mind, we cannot conclude that the trial court abused its discretion
in prohibiting introduction of the evidence that plaintiff attended the medical examinations on the
basis of relevance. Plaintiff is adamant in his brief on appeal that the value of that evidence stems
directly from the fact that the medical examiners were originally retained by defendant, which is
itself evidence that would have been inadmissible. Kissel, 87 Mich. App. at 5. Moreover, even
were plaintiff to change his position and seek introduction of evidence that plaintiff attended the
medical examinations without also introducing the fact that the physicians were retained by
defendant Olds, plaintiff still cannot establish that the trial court abused its discretion in excluding
the evidence on the basis of its irrelevance. At best, it was a close evidentiary issue that this Court
should not overturn. Anderson, 322 Mich. App. at 87. At worst, exclusion of the fact that plaintiff
attended two medical examinations that neither party sought to substantively introduce at trial did
not affect plaintiff’s substantial rights, MRE 103(a), and was not inconsistent with substantial
justice, MCR 2.613, because it had little to no bearing on the question of whether plaintiff sustained
a serious impairment of body function.
Affirmed.
/s/ Mark T. Boonstra
/s/ Jane E. Markey
/s/ Karen M. Fort Hood
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