Jean Marshall v. Daniel J Ryan Md Pc ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
JEAN MARSHALL, UNPUBLISHED
December 26, 2017
Plaintiff-Appellee,
v No. 334196
Genesee Circuit Court
DANIEL J. RYAN, M.D., PC and DANIEL J. LC No. 13-099654-NH
RYAN, M.D.,
Defendants-Appellants,
and
SKYLER D. WOLFE, M.D., HURON
OPHTHALMOLOGY, PC, WALTER
CUKROWSKI, D.O., C. F. CUKROWSKI, D.O.,
and CUKROWSKI EYE CENTER, PC, doing
business as EAST MICHIGAN EYE CENTER,
Defendants.
JEAN MARSHALL,
Plaintiff-Appellee,
v No. 336619
Genesee Circuit Court
DANIEL J. RYAN, M.D., PC, DANIEL J. RYAN, LC No. 13-099654-NH
M.D., SKYLER D. WOLFE, M.D., and HURON
OPHTHALMOLOGY, PC,
Defendants,
and
WALTER CUKROWSKI, D.O., C. F.
CUKROWSKI, D.O., and CUKROWSKI EYE
CENTER, PC, doing business as EAST
MICHIGAN EYE CENTER,
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Defendants-Appellants.
Before: TALBOT, C.J., and BORRELLO and RIORDAN, JJ.
RIORDAN, J. (concurring).
I concur with the majority, but write separately to express hesitance regarding the jury’s
calculation of non-economic damages. The record is, at best, cloudy regarding the actual
damages suffered by plaintiff. Indeed, plaintiff herself struggled to separate the problems she
suffered due to her chronic conditions of 12 years and those that were caused for a significantly
shorter time period of 13 months by the retained bandage contact lenses. While I recognize that
the calculation of damages related to pain and suffering is inherently imprecise, our Supreme
Court was clear in holding that “[t]he difficulty of reviewing damage awards [] does not
undermine the judicial obligation to do so[.]” Gilbert v DaimlerChrysler Corp, 470 Mich. 749,
764; 685 NW2d 391 (2004).
However, before the trial court and now on appeal, defendants chose to argue solely that
there was no evidence of any damages caused by their negligence. In doing so, defendants left
the trial court, and now leave us, with little to consider regarding what portion of pain and
suffering was actually caused by the retained lenses that were in plaintiff’s eyes for 13 months.
Specifically, defendants failed to make an argument regarding what percentage of plaintiff’s pain
and suffering should have been attributed to her infections and giant papillae of 13 months in
duration instead of her long-term eye issues of 12 years, which still continue. In fact, they did
not cite a single case where a court of any jurisdiction upheld a calculation of damages or
granted remittitur in considering a similar jury award for similar issues. Had defendants done so,
the trial court would have had some grounds to properly consider whether the jury’s calculation
of damages was excessive, and we would have had a better record here upon which to determine
if the trial court abused its discretion.
Ultimately, it was defendants’ failure to do so that necessitates my determination that the
trial court did not abuse its discretion in denying their motions for remittitur. After all, “[a]n
appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims, nor may he give only cursory treatment with little or no
citation of supporting authority.” Kubicki v Mtg Electronic Registration Sys, 292 Mich. App. 287,
291; 807 NW2d 433 (2011) (quotation marks omitted).
While I question whether the jury’s award of non-economic damages was excessive
considering the evidence introduced at trial regarding plaintiff’s long-term medical issues,
defendants have provided no ground on which to hold that the trial court abused its discretion in
denying their motions for remittitur. See id.
Therefore, I concur in the majority’s decision to affirm.
/s/ Michael J. Riordan
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