Author(s): Alan Davis

FEDERAL COURT PROVES MORE DESIRABLE IN DEFENDING ALLEGED TRAUMATIC BRAIN INJURY IN AUTOMOBILE ACCIDENT CASE

Plaintiffs seeking compensation for non-economic loss damages resulting from an automobile accident in Michigan are required under the Michigan No-Fault Statute to prove that they have suffered one of three threshold injuries; death, serious impairment of body function, or permanent serious disfigurement. MCLA 500.3135(2)(a) provides that the serious impairment of body function and permanent serious disfigurement thresholds are“questions of law for the court” if the court finds either that there is no factual dispute concerning the nature and extent of the person’s injuries or that there is a factual dispute, but the dispute is not material to the determination. But the statute further sets out an exception:

However, for a closed head injury, a question of a fact for the jury is created if a licensed allopathic or osteopathic physician who regularly diagnoses or treats closed-head injuries testifies under oath that there may be a serious neurological injury.

Churchman v Rickerson, 240 Mich App 223 (2002) and other cases have made it clear that if a plaintiff presents such a statement from a qualified individual, the plaintiff can thereby avoid having the court even consider granting summary disposition to the defendant for failure to meet the serious impairment threshold. Since the affidavit need only say that in the doctor’s opinion the plaintiff “may” have a serious neurological injury, defendants have had very little luck in avoiding trial, even where the effects on the plaintiff’s life otherwise would not meet the requirements set forth in Kreiner v Fischer, 471 Mich 109 (2004).

In a case defended by Garan Lucow Miller attorneys Mark Shreve and Alan Davis, Livonia Shropshire claimed that she and her five year old daughter, Hannah Shropshire, suffered serious impairments of body function in a minor impact collision when their mini-van was struck by a school bus. Mrs. Shropshire received extensive treatment for soft-tissue type neck and back injuries. Hannah advised that she had bumped her head.

Approximately a year later, Hannah was seen by a pediatric neurologist. The doctor was told that at times Hannah did not respond when her parents or one of the other several siblings in the house called for her. She was also told by the mother that others had reported that Hannah seemed to be dazed or looking off into space at times. The doctor then performed her own EEG, which showed some abnormality. She concluded that Hannah “may” have suffered a serious neurological injury as a result of the motor vehicle accident and began medicating her. Hannah was then referred by her attorney for a neuropsychological examination. The neuropsychologist found abnormalities, which he opined were accident related, but performed no treatment.

When litigation was filed, defense counsel removed the case to U.S. Federal District Court. Defense counsel put together dispositive motions seeking to dismiss Hannah’s claim on the basis that no proximate cause could be established for the alleged abnormal finding/symptoms and that neither Plaintiff had suffered a serious impairment of body function as required by the No-Fault Statute. The District Judge was not impressed that either mother or daughter had suffered a serious impairment of body function. She granted summary judgment as to both Plaintiffs’ claims, despite the pediatric neurologist’s affidavit that Hanna “may” have suffered a serious neurological injury.

On appeal, Hannah’s attorney argued vehemently that the No-Fault Statute made it clear that the affidavit of Hannah’s pediatric neurologist required that the decision as to whether or not Hannah had suffered a serious impairment of body function had to be presented to the jury. Garan Lucow Miller appellate attorney Daniel Saylor argued to the Court that despite the affidavit, Hannah would still be required to prove to a jury that she had suffered a serious impairment of a body function in order to obtain a judgment and that the Court had authority to apply the usual rules pertaining to summary judgment where the pleadings and discovery materials do not establish a genuine issue of material fact. In a case entitled Shropshire v. Laidlaw Transit, Inc.,

F3d , 2008 W.L. 5245692 (CA6 2008), the Sixth Circuit Court of Appeals issued its published Opinion.

The Court of Appeals noted that under the landmark decision of Erie R.R. Co v. Tompkins, 304 US 64 (1938), in diversity actions, federal courts will apply state substantive law, but federal procedural law. The Court further noted that the allocation of decision-making authority between the judge and the jury is a “quintessentially procedural determination.” The Court determined that the use of the affidavit to distinguish between a judicial determination and a jury determination was procedural in nature. As a result, the Court found that the trial judge was not required to follow the state statute and allow the matter to be presented to a jury where the facts did not warrant doing so.

The Court then examined the evidence concerning whether Hannah had suffered a serious impairment of body function as set forth in the No-Fault Statute and Kreiner v. Fischer, supra. When it concluded that there had been no showing that the alleged serious impairment of body function affected Hannah’s general ability to lead her normal life, the Court affirmed the Summary Judgment granted by the trial Judge.2

In order to make economic loss claims viable in lesser injury cases, the adding of a questionable claim for a traumatic brain injury quite often occurs. If plaintiff can get a neurologist or psychologist to sign an affidavit that there “may” be a serious neurological injury, in state courts, the plaintiff is going to get his case past the screening of a judge and before a jury for determination. Because the taking of such cases to trial is expensive and there is always the possibility of a jury awarding a very large sum of money on a very questionable brain injury case, the judicial screening is very important. Therefore, it is suggested that where diversity allows such a case to be removed to Federal Court, it should be strongly considered.