May 19, 2015
In a recent, unpublished decision, Wilcox v Jamie Lee Beals, (Docket No. 318229, 05//05/15)[1], the Michigan Court of Appeals held that the trial court’s decision to limit the testimony of Plaintiff’s treating chiropractor was erroneous, yet did not warrant reversal because the error was minimized and the evidence did not provide the chiropractor with the foundation to offer the excluded testimony.
Plaintiff Wilcox was involved in a motor vehicle accident in 2011 in which Defendant Beals failed to stop at a posted sign and drove into oncoming traffic, colliding with Plaintiff. Plaintiff sued Defendant seeking compensation for injuries she purportedly sustained to her neck, back, shoulders and knees, as well as excess wage loss she claimed was attributable to this accident. At trial, Defendant admitted negligence.
The jury determined that Plaintiff did not suffer excess wage loss or a serious impairment of body function, and thus, issued a verdict of no cause of action in favor of Defendant. Plaintiff appealed, contending that the trial court improperly limited the testimony of her treating chiropractor, Dr. Michael Warnars, by prohibiting him from testifying with respect to knee and shoulder injuries; her disabilities, limitations, and restrictions; and whether she suffered a serious impairment of body function. Plaintiff also argued that the trial court abused its discretion by allowing Defendant to utilize surveillance footage obtained by a private investigation firm that Defendant did not identify on its initial witness list.
With respect to Plaintiff’s knee and shoulder injuries, the Court of Appeals noted that “[t]he general rule is that a chiropractor is qualified to testify in a personal injury action concerning matters within the scope of his profession or practice.” Corbin v Hittle, 34 Mich App 631, 636-37; 192 NW2d 38 (1971)(citations omitted). While the statutory scope was previously limited to spinal subluxations and misalignments, a 2009 amendment to MCL 333.16401(1)(e) expanded that scope to include the entire musculoskeletal system and joint dysfunction, among others. Because the statutory amendments encompass the alleged injuries to Plaintiff’s shoulder and knee, limiting Dr. Warnars’ testimony to exclude those injuries was legally erroneous. However, the Court of Appeals found that because there was no evidence to suggest that Dr. Warnars treated, evaluated, and/or diagnosed Plaintiff’s knee, the court would not reverse the trial court’s order. Moreover, because Dr. Warnars did testify regarding Plaintiff’s shoulder, the erroneous ruling was harmless.
The Court of Appeals reached a similar conclusion with respect to the trial court’s limitation of Dr. Warnars’ testimony to exclude his opinions regarding Plaintiff’s disability, restrictions, or limitations. The Court found that, while a chiropractor may testify regarding disabilities, restrictions, and limitations based upon the diagnosis and treatment of conditions within the scope of his or her practice, Dr. Warnars lacked the foundation to testify regarding Plaintiff’s knee. Moreover, despite the trial court’s ruling, Dr. Warnars did testify regarding limitations and restrictions on Plaintiff’s activities with respect to her shoulder and back injuries. To the extent Plaintiff claimed that the trial court should have permitted Dr. Warnars to testify regarding restrictions or limitations on her employment, the Court of Appeals found there was no evidence to suggest that Dr. Warnars would testify that she was unable to work or that she could return to work with restrictions, so again, Dr. Warnars lacked the foundation to provide such testimony. In light of the above, the Court of Appeals found the trial court’s erroneous rulings were not such that they constituted reversible error.
Plaintiff also argued that the trial court erred by prohibiting Dr. Warnars to opine as to whether Plaintiff suffered a serious impairment of body function. Because the jury heard substantial testimony regarding Plaintiff’s functional difficulties from Plaintiff, her family, and her employer, and because Dr. Warnars provided extensive testimony regarding her limitations, the Court of Appeals found the trial court’s error in limiting his testimony was minimal and did not warrant reversal.
Finally, the Court of Appeals held that where Defendant identified the investigation company in a witness list in February 2013, and where the trial did not occur until August 2013, there was no abuse of discretion in allowing the admission of the surveillance footage. In issuing this ruling, the Court of Appeals also noted that the surveillance was consistent with Plaintiff’s general assertions.
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Seminar Agenda:
8:30 – 8:55 a.m. Continental Breakfast and Registration.
8:55 – 9:00 a.m. Welcome and Introduction.
Speaker: David A. Couch, Esq.
9:00 – 10:00 a.m. Illinois First Party and Third Party Auto Law Updates.
Speaker: Jennifer E. Davis, Esq.
10:00 – 10:15 a.m. Illinois Premises Liability Law Updates.
Speaker: David A. Couch, Esq.
10:15 – 10:30 a.m. Illinois Premises Liability Law Comparison With Adjacent State Laws.
Speaker: David A. Couch, Esq.
10:30 – 10:45 a.m. Break
10:45 – 11:30 a.m. Michigan First Party Auto Law Updates and Comparison with Illinois and Indiana Law.
Speaker: John W. Whitman, Esq.
11:30 – 12:00 noon Michigan Third Party Auto Law Updates and Comparison with Illinois Law.
Speaker: David A. Couch, Esq.
12:00 – 12:15 p.m. Question and Answer Session.
12:15 – 12:30 p.m. Examination on Illinois Law Topics and Comparison with Adjacent State Laws.
12:30 – 1:00 p.m. Lunch provided at the Chicago Marriott Schaumburg
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Presenters: John W. Whitman, Jennifer E. Davis, and David A. Couch
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