Jesse Marcus Spica v. Kevin J Schrotenboer ( 2015 )


Menu:
  •                            STATE OF MICHIGAN
    COURT OF APPEALS
    JESSE MARCUS SPICA,                                                UNPUBLISHED
    March 12, 2015
    Plaintiff-Appellee,
    v                                                                  No. 317510
    Kent Circuit Court
    KEVIN J. SCHROTENBOER, LOIS MAXINE                                 LC No. 11-008456-NI
    SCHROTENBOER,
    Defendants-Appellants
    and
    KALES, INC,
    Defendant.
    Before: M. J. KELLY, P.J., and MURPHY and HOEKSTRA, JJ.
    PER CURIAM.
    In this personal injury action arising from an automobile accident, defendants Kevin
    Schrotenboer and Lois Schrotenboer appeal as of right from the judgment entered in favor of
    plaintiff Jesse Spica in the amount of $750,000. Because the trial court did not abuse its
    discretion in refusing to set aside the defaults entered against defendants and because the award
    of $750,000 in noneconomic damages was not clearly erroneous, we affirm.
    In the early morning hours of June 26, 2011, plaintiff was walking westbound on 11 mile
    Road NE in Courtland Township, MI. At that time, he was struck by a vehicle driven by Kevin.
    The vehicle in question was owned by Kevin’s mother, Lois. Both Kevin and plaintiff had been
    drinking the night of the accident. Kevin, a karaoke operator at a local bar, Kales, Inc., was
    driving home with a blood alcohol content of 0.10. Plaintiff, who was a twenty-year-old
    pedestrian at the time of the accident, had a blood alcohol content of 0.255. As a result of the
    accident, plaintiff suffered numerous injuries and Kevin faced criminal charges involving
    operating a motor vehicle while intoxicated causing serious injury, MCL 257.625(5)(a).
    -1-
    On September 6, 2011, plaintiff filed the present civil suit against Kevin, Lois, and Kales,
    1
    Inc. Relevant to Lois and Kevin, plaintiff’s complaint asserted three claims: (1) negligence
    against Kevin involving allegations that Kevin’s operation of the vehicle violated several
    criminal codes, (2) ownership liability against Lois, MCL 257.401, and (3) negligent entrustment
    against Lois, MCL 257.625(1). Neither Kevin nor Lois responded to plaintiff’s complaint, and
    in October of 2011, defaults entered against both Kevin and Lois.
    Approximately a year later, plaintiff filed a motion for entry of default judgment and
    requested an evidentiary hearing on the issue of damages. Kevin and Lois objected to plaintiff’s
    motion for entry of default judgment and moved the trial court to set aside their defaults. The
    trial court denied their motion, finding that they had not demonstrated the good cause required by
    MCR 2.603(D)(1). Thereafter, the trial court conducted an evidentiary hearing, during which it
    heard testimony from plaintiff and his parents pertaining to plaintiff’s injuries. Medical records,
    photographs of plaintiff’s injuries in the hospital, and life expectancy tables were also introduced
    into evidence by plaintiff.
    Following the evidentiary hearing, the trial court rejected defendants’ assertion of
    comparative negligence by plaintiff, and determined that the accident did not occur on the
    travelled portion of the road, but rather that Kevin drove off the road and hit plaintiff who was
    walking in the “weeds.” Based on plaintiff’s injuries and the testimony regarding his pain and
    suffering, the trial court awarded $400,000 in initial noneconomic damages, from the time of the
    accident to the time of the hearing, and $350,000 in future noneconomic damages. When
    awarding future damages the trial court specified that it had accounted for a reduction to present
    value. Defendants now appeal as of right.
    Defendants first argue that the trial court abused its discretion in refusing to set aside the
    defaults entered against them in October of 2011. In particular, they maintain that they
    demonstrated both good cause and the existence of a meritorious defense as required to set aside
    a default under MCR 2.603(D)(1).
    On appeal, we review a trial court’s decision on a motion to set aside a default for a clear
    abuse of discretion. Shawl v Spence Bros, Inc, 
    280 Mich. App. 213
    , 220; 760 NW2d 674 (2008).
    An abuse of discretion “involves far more than a difference in judicial opinion.” Alken-Ziegler,
    Inc v Waterbury Headers Corp, 
    461 Mich. 219
    , 227; 600 NW2d 638 (1999). Instead, an abuse of
    discretion will be found “only when the trial court’s decision is outside the range of reasonable
    and principled outcomes.” 
    Shawl, 280 Mich. App. at 220-221
    (citation omitted).
    The relevant court rule for setting aside a default is MCR 2.603(D), which states, in
    pertinent part, that:
    1
    Kales, Inc was dismissed from the lawsuit with prejudice and it is not a party to this appeal.
    -2-
    (1) A motion to set aside a default or a default judgment, except when grounded
    on lack of jurisdiction over the defendant, shall be granted only if good cause is
    shown and an affidavit of facts showing a meritorious defense is filed.[2]
    In other words, pursuant to MCR 2.603(D)(1), to set aside a default, there must be “both good
    cause, i.e., a reasonable excuse for the failure to answer, and a meritorious defense.” Saffian v
    Simmons, 
    477 Mich. 8
    , 14; 727 NW2d 132 (2007). The burden of demonstrating good cause and
    a meritorious defense falls on the defaulting party. 
    Id. at 15.
    To demonstrate good cause, the defaulting party must show either: “(1) a procedural
    irregularity or defect, or (2) a reasonable excuse for not complying with the requirements that
    created the default.” Barclay v Crown Bldg & Dev, Inc, 
    241 Mich. App. 639
    , 653; 617 NW2d 373
    (2000). Ordinarily, an attorney’s negligence is attributable to the client and such negligence
    “does not constitute grounds for setting aside a default judgment.” Park v American Casualty
    Ins Co, 
    219 Mich. App. 62
    , 67; 555 NW2d 720 (1996). Regarding a meritorious defense, MCR
    2.603(D)(1) “requires an affidavit of facts establishing a meritorious defense.” Huntington Nat’l
    Bank v Ristich, 
    292 Mich. App. 376
    , 392; 808 NW2d 511 (2011). The affiant must have
    “personal knowledge of the facts, state admissible facts with particularity, and show that the
    affiant can testify competently to the facts set forth in the affidavit.” 
    Id. Notably, “good
    cause” and “meritorious defense” are separate inquiries, 
    Barclay, 241 Mich. App. at 653
    , and “[i]t is important that the ‘good cause’ and ‘meritorious defense’ elements
    of a motion to set aside be considered separately.” Zaiter v Riverfront Complex, Ltd, 
    463 Mich. 544
    , 553 n 9; 620 NW2d 646 (2001). Nonetheless, it has been recognized that there is “some
    interplay between the two[.]” 
    Shawl, 280 Mich. App. at 237
    . Specifically, “if a party states a
    meritorious defense that would be absolute if proven, a lesser showing of ‘good cause’ will be
    required than if the defense were weaker, in order to prevent a manifest injustice.” Alken-
    Ziegler, 
    Inc, 461 Mich. at 233-234
    . However, this notion of “manifest injustice” may not be
    construed as “a third form of good cause that excuses a failure to comply with the court rules
    where there is a meritorious defense.” 
    Barclay, 241 Mich. App. at 653
    . “Rather, manifest
    injustice is the result that would occur if a default were to be allowed to stand where a party has
    satisfied the ‘meritorious defense’ and ‘good cause’ requirements of the court rule.” Alken-
    Ziegler, 
    Inc, 461 Mich. at 233
    . In other words, “[w]hile a lesser showing of good cause will
    suffice where the meritorious defense is strong, good cause must still be shown in order to
    prevent a manifest injustice.” 
    Barclay, 241 Mich. App. at 653
    (emphasis added). Consequently,
    it is not necessary to reach the meritorious defense inquiry where a party fails to make a showing
    of good cause. See 
    Zaiter, 463 Mich. at 553
    n 9. See, e.g., Midwest Mental Health Clinic, PC v
    Blue Cross & Blue Shield of Mich, 
    119 Mich. App. 671
    , 675; 326 NW2d 599 (1982).
    In the present case, regarding good cause, defendants assert that good cause exists for
    their failure to respond because: (1) Lois does not recall receiving the complaint and summons,
    2
    MCR 2.603(D)(3) states that, in addition, “the court may set aside a default and a default
    judgment in accordance with MCR 2.612.” In this case, however, defendants arguments are
    premised on MCR 2.603(D)(1) and MCR 2.612 is inapplicable.
    -3-
    (2) plaintiff delayed a year between the entry of defaults and his motion for entry of default
    judgment, and (3) Kevin’s defense attorney in his criminal proceedings misadvised them
    regarding the civil proceedings. In addition, they allege the existence of meritorious defenses,
    namely plaintiff’s purported contributory negligence, which they assert entitles them to make a
    lesser showing of good cause. Each of defendants’ arguments is without merit.
    First, while Lois maintains she does not remember being served with the complaint, she
    does not, however, actually allege any defect with the service or process, nor does she actually
    deny that the service occurred. To the contrary, the proofs of service in this case plainly show
    that Kevin and Lois were properly served with the summons and complaint, and yet they failed
    to respond as required by MCR 2.108(A)(1). Lois’s lack of memory regarding these events does
    not amount to a procedural irregularity or otherwise excuse her failure to respond.
    Second, defendants are mistaken in their assertion that plaintiff’s delay in seeking a
    default judgment somehow establishes a procedural irregularity which entitled them to set aside
    their defaults. The defaults establishing defendants’ liability entered in October of 2011 and it is
    these defaults regarding their liability which defendants now seek to set aside. Although it is
    true that plaintiff waited a year before seeking a default judgment regarding the issue of
    damages, this delay after the entry of defaults does not render those defaults improper or
    irregular. Instead, it appears that defendants mistakenly conflate the defaults relating to the issue
    of liability with the issue of damages, when in fact these are two separate inquiries. See
    generally White v Sadler, 
    350 Mich. 511
    , 517, 520-521; 87 NW2d 192 (1957); Kalamazoo Oil Co
    v Boerman, 
    242 Mich. App. 75
    , 79; 618 NW2d 66 (2000). We simply cannot see how plaintiff’s
    delay in seeking a judgment on the issue of damages somehow rendered irregular previously
    entered defaults regarding the question of defendants’ liability or otherwise excuses defendants’
    failure to respond to plaintiffs’ complaint. In short, such delay does not constitute good cause for
    setting aside the defaults under MCR 2.108(A)(1).
    Third, defendants have not shown good cause based on the purported misadvice they
    received from Kevin’s defense attorney. In particular, according to Kevin’s affidavit, he
    discussed the civil matter with his criminal defense attorney and his attorney informed him that
    “the civil case would be handled after completion of the criminal case.” Kevin then informed
    Lois of this advice. Both defendants averred that after receiving notice of plaintiff’s motion to
    enter a default judgment, Kevin spoke with his attorney and “learned that the information from
    [the] criminal attorney was wrong or that [Kevin] misunderstood the matter.”
    Considering the explanation provided in defendants’ affidavits, as a factual matter,
    defendants’ argument lacks merit because it is not entirely clear precisely what advice was
    offered by Kevin’s attorney or that defendants’ failure to respond can be attributed to this advice.
    Simply stating that the civil case would be handled after the criminal case is not tantamount to
    instructing Kevin not to answer the complaint. Moreover, there is no evidence from Kevin’s
    criminal attorney, such as an affidavit, verifying this alleged conversation or the substance of his
    or her advice. This lack of information regarding the conversation is particularly problematic
    because, although defendants suggest that the attorney may have provided misinformation, both
    Kevin and Lois also acknowledge that it could be that Kevin “misunderstood the matter.” It
    might well be then that Kevin’s misunderstanding, not misinformation from the attorney, led to
    defendants’ failure to respond. On this record, defendants have not presented sufficient evidence
    -4-
    to support their version of events and they have thus failed to demonstrate good cause. See
    
    Saffian, 477 Mich. at 15
    . And, in any event, even assuming misinformation from Kevin’s
    criminal attorney, “[a]n attorney’s negligence is attributable to the client and normally does not
    constitute grounds for setting aside a default judgment.” 
    Park, 219 Mich. App. at 67
    . See also
    Amco Builders & Developers, 
    Inc, 469 Mich. at 96
    . Consequently, defendants may not rely on
    purported mistakes by Kevin’s criminal defense attorney as a basis for establishing good cause.
    See 
    Park, 219 Mich. App. at 67
    .
    In sum, defendants have not demonstrated good cause for their failure to respond to
    plaintiff’s complaint. Because defendants have not demonstrated good cause, there can be no
    manifest injustice in the trial court’s denial of their motion to set aside the defaults and we find it
    unnecessary to address whether defendants’ affidavits evidenced the existence of a meritorious
    defense. See 
    Zaiter, 463 Mich. at 553
    n 9; 
    Barclay, 241 Mich. App. at 653
    . Instead, given that
    defendants have failed to demonstrate good cause, we conclude that the trial court did not abuse
    its discretion in refusing to set aside the defaults under MCR 2.603(D)(1). See 
    Barclay, 241 Mich. App. at 653
    .
    On appeal, defendants next argue that the trial court’s award of $750,000 in damages was
    clearly erroneous. In particular, they maintain that the award was speculative and excessive
    because plaintiff failed to offer medical testimony or otherwise adequately establish the extent of
    his injuries. In the absence of medical testimony, defendants contend that there was no proof
    that plaintiff’s injuries resulted from the accident or that these injuries were ongoing and
    permanent so as to justify an award of future damages. Lastly, defendants maintain that the trial
    court clearly erred by failing to reduce the award of future damages to gross present cash value
    as required by MCL 600.6306(1)(e).
    We review an award of damages following an evidentiary hearing for clear error.
    Woodman v Miesel Sysco Food Serv Co, 
    254 Mich. App. 159
    , 190; 657 NW2d 122 (2002). Under
    this standard, this Court will not “set aside a nonjury award merely on the basis of a difference of
    opinion.” Marshall Lasser, PC v George, 
    252 Mich. App. 104
    , 110; 651 NW2d 158 (2002)
    (citation omitted). Rather, “[c]lear error exists only when the appellate court is left with the
    definite and firm conviction that a mistake has been made.” Herald Co, Inc v Eastern Mich Univ
    Bd of Regents, 
    475 Mich. 463
    , 471; 719 NW2d 19 (2006) (quotation marks and citation omitted).
    In Michigan, “tort damages generally include the damages that naturally flow from the
    injury, which may include both economic damages, such as damages incurred due to the loss of
    the ability to work and earn money, as well as noneconomic damages, such as pain and suffering
    and mental and emotional distress damages.” Hannay v Dep’t of Transp, __ Mich __, __; __
    NW2d __ (2014), slip op at 18. “Damages are an issue of fact, and questions of fact are, of
    course, generally decided by the trier of fact.” McManamon v Redford Twp, 
    273 Mich. App. 131
    ,
    141; 730 NW2d 757 (2006). The party asserting the claim bears the burden of proving damages
    with reasonable certainty. Unibar Maintenance Servs, Inc v Saigh, 
    283 Mich. App. 609
    , 634; 769
    NW2d 911 (2009). Thus, damages based on speculation or conjecture are not recoverable. 
    Id. Damages are
    not speculative, however, merely because they cannot be proven with mathematical
    certainty; and, once liability has been established, less certainty as to the amount of damages is
    required. Ensink v Mecosta Co Gen Hosp, 
    262 Mich. App. 518
    , 525; 687 NW2d 143 (2004).
    -5-
    Noneconomic damages in particular include “past and future disability and
    disfigurement, shame and mortification, mental pain, and anxiety, annoyance, discomfiture, and
    humiliation, denial of social pleasure and enjoyments, and fright and shock.” May v William
    Beaumont Hosp, 
    180 Mich. App. 728
    , 758; 448 NW2d 497 (1989) (internal citations omitted).3
    When assessing noneconomic damages, it should be remembered that “a dollar amount can never
    truly be placed on an individual’s pain and suffering,” and consequently, noneconomic damages
    are an “imprecise” means of compensation. Freed v Salas, 
    286 Mich. App. 300
    , 334, 336; 780
    NW2d 844 (2009). Moreover, “no two persons sustain the same injury or experience the same
    suffering.” 
    Id. at 336,
    quoting Precopio v Detroit, 
    415 Mich. 457
    , 471; 330 NW2d 802 (1982).
    Consequently, “no two cases precisely resemble each other, especially where noneconomic
    damages are involved . . . .” 
    May, 180 Mich. App. at 758
    . For this reason, although comparisons
    among cases may sometimes prove helpful when contemplating the appropriateness of a
    noneconomic damages award, “[a]n appellate court should not attempt to reconcile widely varied
    past awards for analogous injuries which in the abbreviated appellate discussion of them seem
    somewhat similar.” 
    Freed, 286 Mich. App. at 336
    , quoting 
    Precopio, 415 Mich. at 471
    .4
    In terms of the proof necessary to establish damages, although a lay witness may not
    testify regarding contested medical issues beyond the scope of his or her lay knowledge, Howard
    v Feld, 
    100 Mich. App. 271
    , 273; 298 NW2d 722 (1980), an injured party may testify to facts
    within his or her knowledge, including the existence of a physical injury, Gibson v Traver, 
    328 Mich. 698
    , 702; 44 NW2d 834 (1950). See also MRE 701. Likewise, “expert testimony is not
    required to establish pain, suffering, inconvenience, and other such elements of noneconomic
    damage because they are within the purview of common knowledge.” Young v Nandi, 276 Mich
    App 67, 77; 740 NW2d 508 (2007), vacated in part on other grounds 
    482 Mich. 1007
    (2008).
    Given a plaintiff’s ability to testify regarding his or her injuries and suffering, medical testimony
    is also “not necessary to prove future pain and suffering where the nature of the injury is such
    that nonexpert witnesses can plainly see or can infer from the injury that there will be future pain
    and suffering, or where the nature of the injury, its duration, and lack of recovery at the time of
    3
    On appeal, defendants assert that the trial court did not specify the nature of the damages
    awarded, meaning it is uncertain whether the damages were noneconomic in nature. The trial
    court record, and in particular the trial court’s explanation of the damage award, makes plain,
    however, that the damages were those to compensate for plaintiff’s emotional and mental distress
    as well as his pain and suffering relating to his physical injuries. This was an award of
    noneconomic damages, while in contrast there is no indication that the trial court awarded
    economic damages such as work-loss or payment for medical expenses. See generally Hannay,
    slip op at 18; 
    May, 180 Mich. App. at 758
    .
    4
    This case in particular involves noneconomic tort damages arising from the ownership and use
    of a motor vehicle, meaning that, pursuant to MCL 500.3135(1), defendants are “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.” McCormick v Carrier, 
    487 Mich. 180
    , 189-190; 795 NW2d
    517 (2010); Rory v Contl Ins Co, 
    473 Mich. 457
    , 465 & n 10; 703 NW2d 23 (2005). Defendants
    do not contest on appeal whether plaintiff satisfied this threshold requirement.
    -6-
    trial, make it clear that pain and suffering will continue for at least sometime into the future.” 2
    Stein on Personal Injury Damages Treatise § 8:26 (3d ed.). See, e.g., Fogel v Sinai Hosp of
    Detroit, 
    2 Mich. App. 99
    , 102-103; 138 NW2d 503 (1965). The credibility of a witness’s
    testimony is a question for the trier of fact. Marshall Lasser, PC v George, 
    252 Mich. App. 104
    ,
    110; 651 NW2d 158 (2002).
    In this case, the trial court did not clearly err in awarding the damages in question.
    Regarding the award of $400,000 in damages from the time of the accident until the hearing,
    defendants do not attempt to compare this amount to similar cases or to otherwise explain why
    the particular dollar amount was inappropriate. Instead, they more generally assert on appeal
    that plaintiff failed to prove the extent of his physical injuries and damages because he did not
    offer medical testimony. This argument is unavailing given that a lay witness may testify to the
    existence of his personal injuries. See 
    Gibson, 328 Mich. at 702
    . The trial court heard plaintiff’s
    testimony regarding the nature and effects of his injuries, and the credibility of this testimony
    was a question for the trier of fact. Marshall Lasser, 
    PC, 252 Mich. App. at 110
    . Moreover,
    although there was no expert testimony, plaintiff did offer medical records and photographs into
    evidence to confirm the nature and extent of his injuries sustained in the automobile accident.
    Plaintiff’s testimony, as corroborated by medical records, revealed that, as a result of the
    accident, plaintiff suffered: (1) an extensive head laceration, requiring 85 stitches in the
    emergency room and subsequent plastic surgery, (2) anterior temporal parenchymal contusion,
    (3) left superior and inferior pubic rami fractures, i.e., a broken pelvis, and (4) a broken back,
    specifically, a T3 end plate fracture, an L5 pars interarticularis fracture, and minimally displaced
    superior articulate facet fracture at C7. In light of this evidence, the trial court did not clearly err
    in concluding that the serious physical injuries in question resulted from the automobile
    accident.5
    In addition to plaintiff’s physical injuries, the evidence showed that plaintiff had mental
    and emotional injuries resulting from the accident, including depression, anxiety, and sleep
    disturbances. That these concerns related to the accident was a fair inference from the evidence,
    specifically given testimony that plaintiff had no mental or psychological issues before the
    accident and now suffers from these problems afterward. Moreover, plaintiff indicated that his
    sleep disturbances involved nightmares with headlights coming at him on the road, providing
    further evidence that plaintiff’s new emotional and psychological disturbances resulted from the
    accident.
    5
    To the extent defendants assert that the award of damages was inappropriate given plaintiff’s
    contributory negligence, the trial court did not clearly err in rejecting defendants claims of
    contributory negligence. The evidence offered by plaintiff—including, photographs of tire
    tracks in the weeds, evidence that plaintiff habitually walked in the “weeds,” and reports
    indicating that plaintiff was discovered 25 or more feet from the road—demonstrated that
    plaintiff was walking in the weeds, off the travelled portion of the road, when Kevin, who was
    operating a motor vehicle while intoxicated, drove off the road and struck plaintiff. On these
    facts, the trial court did not clearly err in rejecting any assertions of contributory negligence.
    -7-
    Given plaintiff’s physical, mental and emotional symptoms resulting from the accident,
    the trial court did not clearly err in awarding $400,000 in noneconomic damages to plaintiff as
    compensation for his pain and suffering in the two years between the time of the accident and the
    evidentiary hearing. In particular, plaintiff and his mother both described an arduous physical
    and mental recovery for plaintiff following the accident. As a twenty-year-old, plaintiff was
    forced to spend months in a hospital bed at his parents’ home, dependant on his family for basic
    activities such as showering or using the bathroom. Plaintiff needed in-home physical therapy,
    he wore a back brace for months, used a wheelchair, and rarely left the house. His mother
    described plaintiff as crying in pain when completing simple tasks such as leaving his bed. Even
    when he left his parents’ home for college in the fall, he still needed to use a back brace and he
    suffered the embarrassment of having to seek assistance from his college roommates for various
    basic activities. He underwent plastic surgery for his facial laceration, but was still left with a
    scar on his face which made him self-conscious, particularly as he attempted to pursue college
    studies in broadcasting. Plaintiff also needed pain medications to cope with the pain in his back.
    Further, his back pain had hindered his ability to perform daily tasks such as chores, yard work,
    etc. For example, it made sitting for more than 20 minutes at a time quite painful, meaning
    plaintiff had difficulty accomplishing his school work in college. Plaintiff had also been an
    active young man, who had enjoyed playing soccer and other sports his entire life; but, following
    the accident his back pain prevented plaintiff from partaking in such activities. Plaintiff also had
    lingering knee pain which doctors were unable to resolve. Mentally, he was also left with sleep
    disturbances, an inability to focus, anxiety and depression, for which he saw a therapist and took
    medication to help him focus. Given this evidence of plaintiff’s pain and suffering from the time
    of his accident until the time of trial, the trial court did not clearly err in awarding plaintiff
    $400,000 in damages for this timeframe. Noneconomic damages for pain and suffering are, by
    their very nature, an imprecise means of compensation and defendants have not shown clear
    error in the amount awarded.
    Similarly, regarding damages for future pain and suffering, the trial court did not clearly
    err in awarding plaintiff $350,000 for future pain and suffering. Again, defendants make no
    effort to compare or contrast this amount to other damage awards in similar cases. They instead
    argue that there is no evidence, and in particular no medical evidence, that plaintiff’s injuries are
    permanent or that his pain and suffering will persist into the future. It is true, as defendants note
    on appeal, that many of plaintiff’s physical injuries have healed and, for instance, he no longer
    needs a back brace or a wheelchair. It is nonetheless also true, however, that plaintiff has been
    left with significant back pain and knee pain which greatly hinders his everyday life and his
    enjoyment thereof. That this pain persisted at the time of trial, more than two years after the
    accident, allows for the conclusion that plaintiff’s pain will likely be permanent. Plaintiff
    specifically testified that he initially experienced some improvement of his physical pain
    following his accident, but that at the time of the hearing his level of pain had been constant for
    approximately one year. Further, the evidence showed that plaintiff continued to seek medical
    assistance for his back pain, he was still on medication for his back pain, and he had been
    advised by his doctors that his back pain was likely something he would simply have to endure.
    This back pain was by no means insignificant given that it left plaintiff unable to perform many
    routine tasks such as yard work, chores, and even activities that required sitting for long periods,
    such as school work. It also prevented plaintiff from enjoying more vigorous activities such as
    soccer and other sports, which he had previously enjoyed. Given that more than two years after
    the accident plaintiff remained unable to engage in these activities because of his back pain, the
    -8-
    trial court’s conclusion that the effects of the injuries were permanent was not mere speculation,
    rather it was a fair inference from the evidence. In other words, on the evidence presented, the
    nature of plaintiff’s injuries and their duration was such that the trial court did not clearly err in
    concluding the resulting pain and suffering was permanent. See generally 2 Stein on Personal
    Injury Damages Treatise § 8:26 (3d ed.).
    Likewise, given the evidence presented, the trial court reasonably concluded that the
    accident left plaintiff with a permanent scar on his face. The trial court had the opportunity to
    personally view this scar, and the court noted for the record that, at the time of trial, the scar ran
    “down the middle of [plaintiff’s] face” and that it was visible from a distance of 8 to 10 feet.
    That the scar remained so visible more than two years after the accident, despite treatment in the
    emergency room and plastic surgery a year later, strongly suggests that the scar will be
    permanent and that it will continue to cause plaintiff the self-coconsciousness he described at the
    hearing. Aside from plaintiff’s self-consciousness about his scar, plaintiff’s mental and
    emotional injuries, including his inability to focus, his depression and anxiety, as well as his
    sleep disturbances have persisted for more than two years, and he continued to take medication
    to help him focus. The evidence also showed that plaintiff was expected to live another 56.6
    years. Overall, given plaintiff’s life expectancy, the permanent nature of plaintiff’s physical
    pain, the permanent scar to his face, and his lingering mental and emotional distress, the trial
    court did not clearly err in awarding future damages in the amount of $350,000 in gross present
    cash value.
    Lastly, contrary to defendants’ arguments, they are not entitled to have the award of
    future damages reduced to reflect gross present value because the trial court has already
    conducted this calculation. Specifically, pursuant to MCL 600.6306(1)(e), future noneconomic
    damages must be reduced to “gross present cash value.” In this case, consistent with this
    requirement, the trial court specified that the award of future damages accounted for a reduction
    to present cash value. Although the trial court did not provide details regarding its calculations,
    see MCL 600.6306(2), defendants point to nothing in the plain statutory language which would
    require the court to make these calculations on the record. Instead, all that is required by the
    statutory language is that the noneconomic future damages included in an order of judgment are
    reduced to present cash value. See Hashem v Les Stanford Oldsmobile, Inc, 
    266 Mich. App. 61
    ,
    93; 697 NW2d 558 (2005). Because the trial court indicated that the future damages in this case
    had been reduced in this manner, defendants have received the reduction required under MCL
    600.6306(1)(e) and they are not entitled to a further reduction. See 
    Hashem, 266 Mich. App. at 92-93
    ; Setterington v Pontiac Gen Hosp, 
    223 Mich. App. 594
    , 607; 568 NW2d 93 (1997).
    Affirmed. Having prevailed in full, plaintiff may tax costs pursuant to MCR 7.219.
    /s/ Michael J. Kelly
    /s/ William B. Murphy
    /s/ Joel P. Hoekstra
    -9-