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Volume XXV, No. 5, February 27, 2013         

 

From the Law Offices of Garan Lucow Miller, P.C.

From the Co-Editors

James L. Borin & Simeon R. Orlowski

 

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COURT OF APPEALS SAYS THAT A “SERIOUS IMPAIRMENT” PLAINTIFF MUST PRESENT DOCUMENTARY EVIDENCE TO SUPPORT  CLAIMS THAT HE CAN’T PERFORM EVEN BASIC TASKS

 

CO-CONTRIBUTORS – DAVID M. SHAFER and JOHN W. WHITMAN

In an unpublished, no-fault “serious impairment” opinion, the Michigan Court of Appeals affirmed a decision of the Macomb Circuit Court finding that the plaintiff had failed to establish that any injuries from his auto accident affected his general ability to lead his normal life.

The opinion is Wilson v Lathrop, Mich Ct of Apps Docket No. 305718 (2-14-2013).  A full copy of the opinion is available Online at http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20130214_C305718_37_305718.OPN.PDF

This case presents a familiar fact pattern. After a trivial accident, the plaintiff claimed that he sustained a life-altering injury. He gave up his business.  He moved out of his marital home and back into his parents’ house.  His mother did “everything” for him.  He “did not even attempt to perform basic tasks for himself, such as prepare a bowl of cereal.”

The Macomb Circuit Court ruled, first, that the plaintiff did not have an objectively manifested impairment, and, second, that the plaintiff had failed to demonstrate that such an impairment affected his ability to lead a normal life.

The circuit court’s first ruling was rejected by the Court of Appeals, because there was sufficient evidence to create a question of fact as to whether the plaintiff had sustained an objectively manifested impairment.  Here again, the facts were very common.  The plaintiff declined medical treatment at the scene of the accident and yet later found two doctors who “supported his need for medication, physical therapy, and work restrictions, and attributed his pain to the accident.”  Three independent examiners, however, had “concluded that the physical complaints were inconsistent with plaintiff’s presentation.”

The circuit court’s second ruling, however, was affirmed by the Court of Appeals, because the plaintiff had failed to establish that an impairment had an affect upon his ability to lead a normal life.  The Court of Appeals noted that, although the plaintiff testified that his mother did “everything” for him, he also “admitted that he never tried to perform basic tasks such as making breakfast, washing clothes, or grocery shopping.”  The Court of Appeals emphasized that “[o]ne cannot simply surmise that he lacks the ability to accomplish a basic task absent any attempt to perform it.  A party must oppose a motion for summary disposition with admissible documentary evidence that must contain a factual foundation without relying on speculation and conjecture.”

This opinion used the phrase “documentary evidence” to describe how a plaintiff “must” meet his burden of proof on this point.  A plaintiff’s testimony alone is not enough. It seems that the Court of Appeals wants more.

Would the court’s decision have been different if the plaintiff had testified that he had tried each of the noted basic tasks and had to stop doing them because of pain?  That seems to be the cynical “fix” for the plaintiff.  But that would likely not work.  The plaintiff has to meet his burden with documentary evidence that shows his pre-accident life and his post-accident life are different.  In short, “don’t tell me: show me, and back it up with something in writing.”

That said, this opinion may be a response to a real dog of a case.  A close reading of the opinion describes “issues” that are not uncommon. For example, this plaintiff could not identify one of his twenty employees.  Moreover, surveillance video showed that he was not telling the truth, because it “located plaintiff at his wife’s residence where he was observed performing basic tasks such as driving and running errands.”  These things probably colored the decisions of the trial court and the Court of Appeals.  It’s unlikely, for example, that a plaintiff with a fractured femur would be expected to show that he had tried to climb stairs before a trial court would accept that he could not.

This opinion is of greater value in the common cases that many of us see all too frequently.  In essence, it forces the plaintiff with a weak case to show something “documentary” to support a bald claim that he cannot even perform basic tasks.

 

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Garan Lucow Miller, P.C., is offering a traveling Deposition and Trial Boot Camp.

The Deposition and Trial Boot Camps would be presented to a group of 10 or more in your office, half day sessions. If interested in scheduling this informative in-house seminar, please contact Eileen Carty at ecarty@garanlucow.com  or 248-641-7600.

 

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GARAN LUCOW MILLER                  

GRAND RAPIDS SPRING BREAKFAST SEMINAR          

April 18, 2013 at Frederik Meijer Gardens and Sculpture Park

The Grand Rapids office of Garan Lucow Miller P.C. is pleased to present its Annual Spring Breakfast Seminar on April 18, 2013 at the Frederik Meijer Gardens and Sculpture Park, located at 1000 East Beltline, NE in Grand Rapids (616) 957-1580. Comprehensive written materials will be distributed to all who attend.  After the seminar, feel free to enjoy all of the open indoor and outdoor garden areas as our guest, including the exciting Butterfly Exhibit!

If you are able to attend this complimentary annual event, please register via e-mail to: lbeatty@garanlucow.com  or phone Lynn Beatty at (616) 742-5500 or (800) 494-6312 for reservations.  We look forward to seeing you!

 

8:00 – 8:20 am Registration and Continental Breakfast

8:20 – 8:25 am Welcome and Introduction

David N. Campos, Moderator

 

8:25- 8:55 am Trial Technology – Using the CSI Factor To Your Advantage

Speaker: John J. Gillooly

8:55 – 9:25 am Premises Liability Update

Recent extension of the Open and Obvious Doctrine beyond cases involving premises owners and invitees as well as other updates on how to successfully defend a premises liability claim that a plaintiff calls “negligence” in an effort to avoid Lugo v Ameritech.

Speaker: David A. Couch

9:25 – 9:45 am Update on Catastrophic Claims Cases

Attendant Care Claims Post Douglas v Allstate

Speaker: Tara L. Velting

9:45 – 10:15 am Third-Party Auto Threshold & Renewed Importance of Surveillance

Life After “McCormick”   Surveillance and “The Pay Off”

Speaker: L. Ladd Culbertson

10:15 – 10:30 am Break

10:30 – 11:00 am Handling Assigned Claims Cases

Speaker: David N. Campos

11:00 – 11:10 am Housekeeping of a Claims File

Discoverability     Strategy for Including Information

Speaker: Timothy M. Swan

11:10 – 11:30 am Returning to Work – Aspects of Labor & Employment Law

For Injured Claimants

Statutes & Agreements that Allow Faster Return to Work

Including FMLA and ADA

Speaker: Thomas R. Paxton

11:30 – 12:15 pm Michigan Auto No-Fault Update

Case Law Update    Year in Review and Anticipated

Future Case Law Development

Speaker: Emily L. Partridge

12:15 – 12:30 pm Questions and Answers