Ashton Donaldson v. State Farm Mutual Automobile Insurance Company ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ASHTON DONALDSON, UNPUBLISHED
September 28, 2023
Plaintiff-Appellee,
v Nos. 363048; 363650
Macomb Circuit Court
STATE FARM MUTUAL AUTOMOBILE LC No. 2019-001705-NI
INSURANCE COMPANY,
Defendant-Appellant.
ASHTON DONALDSON,
Plaintiff-Appellant,
v No. 364991
Macomb Circuit Court
STATE FARM MUTUAL AUTOMOBILE LC No. 2019-001705-NI
INSURANCE COMPANY,
Defendant-Appellee.
Before: SHAPIRO, P.J., and M. J. KELLY and CAMERON, JJ.
PER CURIAM.
Plaintiff, Ashton Donaldson, brought this action against defendant, State Farm Mutual
Automobile Insurance Company, for recovery of uninsured motorist benefits. Following a jury
trial, the court entered a judgment awarding Donaldson $250,000 for past and present
noneconomic damages and $100,000 for future noneconomic damages, consistent with the jury
verdict. The court later granted State Farm’s motion for remittitur and reduced the total judgment
to $250,000.00, consistent with the terms of the automobile insurance policy. State Farm appeals
the judgment as of right in Docket Nos. 363048 and 363650. The court granted Donaldson’s
postjudgment motion for taxable costs under MCR 2.625, but denied his request for case
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evaluation sanctions under MCR 2.403. Donaldson appeals the denial of case evaluation sanctions
in Docket No. 364991. We affirm for the reasons stated in this opinion.
I. BASIC FACTS
On December 6, 2018, Donaldson was driving a vehicle that was stopped at a red traffic
signal when another vehicle rear-ended his vehicle and then fled the scene. Donaldson declined
medical treatment at the scene and drove himself home. Shortly after arriving home, however, he
began experiencing sensitivity to light and pain in his back and neck, so he drove himself to the
hospital and was treated in the emergency room. He remained in the hospital overnight.
Donaldson was told that, although he did not strike his head during the crash, he had a subdural
hematoma.
Dr. Vittorio Morreale provided a consult on Donaldson’s condition while Donaldson was
in the hospital and provided some follow-up treatment after Donaldson was discharged. Dr.
Morreale diagnosed Donaldson with a small subdural hematoma while Donaldson was still in the
hospital. Donaldson’s complaints regarding headaches and memory loss were also consistent with
head trauma. While the hematoma was no longer visible after a few months, Donaldson could
have continued to feel the effects of that injury.
Shortly after Donaldson was discharged from the hospital, he sought treatment for back
and neck pain, among other complaints, from his chiropractor, Dr. David McFadden. Dr.
McFadden referred Donaldson for magnetic resonance imaging (MRI) tests of the spine in
December 2018. The MRI of Donaldson’s neck showed that there were “[d]isc bulges at the C4-
5 and C5-6 levels, indenting the ventral thecal sac” and “[l]imited spinal excursion through the
flexion and extension studies, that could represent musculoligamentous sprain/spasm under
appropriate clinical settings.” An MRI of Donaldson’s lower back showed “a Schmorl’s node at
the superior endplate of L5 vertebra.”1
Donaldson also treated with Dr. Stephen Wilson, who explained that Donaldson suffered
a whiplash injury, which caused muscles and ligaments in the neck to be stretched and damaged.
Depending on the severity of the injury, it can also cause injuries to the back. Dr. Wilson
diagnosed Donaldson with a cervical spine sprain of the ligament, a lumbar strain of the ligament,
a thoracic spine strain of the ligament, and numbness down his leg, due to paresthesia of the skin.
In addition to medication, Donaldson was prescribed physical therapy and advised to continue
treatment with his chiropractor.
Despite progress in treating his injuries, Donaldson continued to suffer from the effects of
his injuries. However, he was able to return to work after approximately eight months. Subsequent
MRIs showed that the subdural hematoma was no longer present in February 2019, and had been
reabsorbed by the brain.
1
A Schmorl’s node is a type of disc herniation where the disc material herniates into the bone of
the spine. A Schmorl’s node can be caused by trauma.
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State Farm denied Donaldson’s claim for recovery of uninsured motorist benefits.
According to State Farm’s claims adjuster, Tamara Beason, State Farm disputed that Donaldson’s
injuries were caused by the December 2018 motor vehicle accident and that Donaldson’s injuries
arose to the level of a serious impairment of a body function, which was necessary for Donaldson
to recover uninsured motorist benefits under the terms of his policy.
Following the presentation of Donaldson’s proofs, the trial court directed a verdict for
Donaldson on the issue of whether Donaldson suffered a subdural hematoma caused by the crash.
The court instructed the jury that Donaldson suffered a subdural hematoma in the motor vehicle
crash, which was diagnosed in the hospital after the accident. The jury was still required to
determine whether that injury, or Donaldson’s other alleged injuries, constituted a serious
impairment of a body function. Further, the trial court denied State Farm’s motion for a directed
verdict on the issue whether the MRIs taken while Donaldson was in the hospital showed injuries
that were caused by the motor vehicle crash.
The jury returned a verdict in Donaldson’s favor, awarding him $250,000 for past and
present noneconomic damages and $100,000 for future noneconomic damages. As noted above,
the court reduced the total judgment to $250,000, which was the policy limit, awarded Donaldson
taxable costs, and denied Donaldson’s request for case evaluation sanctions.
II. BEASON’S TESTIMONY
A. STANDARD OF REVIEW
State Farm argues that the court erred by denying its pretrial motion to quash a subpoena
issued to Beason and to strike Beason from Donaldson’s witness list. State Farm also contends
that Beason’s testimony was substantively inadmissible. A trial court’s decision whether to allow
a party to amend a witness list or add a witness is reviewed for an abuse of discretion. Tisbury v
Armstrong, 194 Mich App 19, 20; 486 NW2d 51 (1991). “A trial court’s decision whether to
admit evidence is reviewed for an abuse of discretion, but preliminary legal determinations of
admissibility are reviewed de novo.” Shivers v Covenant Healthcare Sys, 339 Mich App 369, 373;
983 NW2d 427 (2021) (citations omitted).
B. ANALYSIS
Donaldson’s original witness list, filed in September 2019, generally indicated that he
planned to call State Farm’s “agents, servants, and/or employees.” On September 24, 2021, which
was approximately two weeks before trial was scheduled to begin, Donaldson added Beason’s
name to his witness list. In doing so, Donaldson failed to comply with MCR 2.401(I)(1)(a), which
requires a party to timely file a witness list that includes “the name of each witness, and the
witness’ address, if known; however, records custodians whose testimony would be limited to
providing the foundation for the admission of records may be identified generally[.]”
Nevertheless, under MCR 2.401(I)(2), the trial court had discretion to allow Donaldson to add
Beason as a witness.
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In considering whether an unnamed witness should be barred from testifying, a trial court
should consider the following nonexhaustive list of factors:
(1) whether the violation was wilful or accidental; (2) the party’s history of refusing
to comply with discovery requests (or refusal to disclose witnesses); (3) the
prejudice to the defendant; (4) actual notice to the defendant of the witness and the
length of time prior to trial that the defendant received such actual notice; (5)
whether there exists a history of plaintiff’s engaging in deliberate delay; (6) the
degree of compliance by the plaintiff with other provisions of the court’s order; (7)
an attempt by the plaintiff to timely cure the defect; and (8) whether a lesser
sanction would better serve the interests of justice. [Duray Dev, LLC v Perrin, 288
Mich App 143, 165; 792 NW2d 749 (2010).]
“Witness lists are an element of discovery” and are required “to avoid ‘trial by surprise.’ ” Grubor
Enterprises, Inc v Kortidis, 201 Mich App 625, 628; 506 NW2d 614 (1993) (citation omitted).
Where justice so requires, a trial court should not be reluctant to allow an unlisted witness to testify.
Pastrick v Gen Tel Co of Mich, 162 Mich App 243, 245; 412 NW2d 279 (1987).
The record discloses that State Farm anticipated that its claims representatives for
Donaldson’s case would be called to testify. In April 2021, State Farm requested that the court
allow the no-fault benefits claims specialists assigned to Donaldson’s case to testify remotely due
to the COVID-19 pandemic. Although these claims representatives handled the no-fault aspect of
Donaldson’s case, Beason was assigned to handle the claim for uninsured motorist coverage, so
State Farm should not have been surprised or prejudiced by the late addition of her name to the
witness list. Moreover, because Beason was State Farm’s employee and State Farm had assigned
her to handle the claim, it had knowledge of her anticipated testimony and could not claim that it
would be surprised by it. Next, State Farm did not show that Donaldson engaged in any intentional
or willful tactics to deny it discovery. Donaldson sought to amend his witness list only one other
time during this litigation, and there were no allegations that he had a history of refusing to comply
with the court’s orders to gain a tactical advantage. Accordingly, the court did not abuse its
discretion by allowing Donaldson to call Beason as a witness.
State Farm next asserts that Beason’s testimony was not relevant under MRE 401, and
therefore, it was inadmissible under MRE 402. “Evidence is relevant if it has any tendency to
make the existence of a fact that is of consequence to the action more probable or less probable
than it would be without the evidence.” Lewis v LeGrow, 258 Mich App 175, 199; 670 NW2d 675(2003), citing MRE 401. We conclude that Beason, who is not a medical expert, was not qualified
to testify as an expert under MRE 702 regarding Donaldson’s medical condition, and it was up to
the jury to determine whether Donaldon suffered a serious impairment of a body function.
However, Donaldson had filed an action for breach of contract because of State Farm’s refusal to
provide uninsured motorist coverage, and Beason was assigned to handle the claim, which
involved reviewing medical records and determining whether Donaldson met the threshold
requirement of a serious impairment of a body function. MRE 701 allows for opinion testimony
of lay witnesses so long as the opinions “are (a) rationally based on the perception of the witness
and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in
issue.”
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Beason’s job was to review the medical records of claimants to determine if they were
eligible for benefits, including whether they had a serious impairment of a body function. Beason’s
testimony, including her evaluation of Donaldson’s medical records and how those records
affected State Farm’s decision to deny uninsured motorist coverage, was relevant to assist the jury
in understanding why defendant denied Donaldson’s claim, and whether it breached the terms of
its policy by doing so.
Contrary to what State Farm argues, Beason’s testimony did not involve actual medical
opinions that she was not qualified to offer. Beason was only asked to explain her process in
reviewing claims and why she believed that Donaldson was not entitled to uninsured motorist
coverage. Although this encompassed her review of medical experts’ opinions and medical
records, she was not offering her own opinions of that evidence as a medical expert. Rather, she
only explained how she utilized that information as a layperson in deciding whether Donaldson
qualified for uninsured motorist benefits. Accordingly, the court did not abuse its discretion by
finding that Beason’s testimony was relevant and admissible.
State Farm also argues that Beason’s testimony should have been excluded because it
involved protected work product. See MCR 2.302(B)(3)(a). However, State Farm has not
identified where Beason was required to disclose any work product prepared in anticipation of this
litigation. Instead, State Farm offered its own claims file after redacting any privileged
information. Thus, State Farm conceded that information it possessed about Donaldson’s claim
was relevant and admissible. The claims file contained Donaldson’s medical records, which were
not subject to the work-product privilege. If State Farm believed that Beason was asked specific
questions that involved protected work product, State Farm should have made contemporaneous
objections to those specific questions on that basis, which it did not do. Instead, State Farm made
only a general objection that any evaluation Beason made about this case after the lawsuit was
filed was protected work product. The trial court did not abuse its discretion by rejecting that
argument and by limiting Beason’s testimony to her explanation for why Donaldson’s claim was
denied, which did not involve protected work product.
III. DIRECTED VERDICT
A. STANDARD OF REVIEW
State Farm argues that the trial court erred by denying its motion for partial directed verdict
and by granting Donaldson’s motion for partial directed verdict. A trial court’s ruling on a motion
for a directed verdict is reviewed de novo. Aroma Wines & Equip, Inc v Columbian Distrib Servs,
Inc, 497 Mich 337, 345; 871 NW2d 136 (2015). “A party is entitled to a directed verdict if the
evidence, when viewed in the light most favorable to the nonmoving party, fails to establish a
claim as a matter of law.” Id.-5-
B. ANALYSIS
1. STATE FARM’S MOTION FOR DIRECTED VERDICT
State Farm moved for a partial directed verdict on the issue of whether the disc bulges and
Schmorl’s node were related to the motor vehicle crash. The court denied the motion.2 After the
jury returned a verdict, State Farm moved for reconsideration, which the court also denied. On
appeal, State Farm argues that the evidence presented failed to show factual causation. Factual
causation requires a showing that, “but for” another’s actions, the plaintiff’s injury would not have
occurred. Skinner v Square D Co, 445 Mich 153, 163; 516 NW2d 475 (1994). In Skinner, the
Court adopted the following guidelines for determining if a plaintiff has met his burden in proving
cause in fact:
All that is necessary is that the proof amount to a reasonable likelihood of
probability rather than a possibility. The evidence need not negate all other possible
causes, but such evidence must exclude other reasonable hypotheses with a fair
amount of certainty. Absolute certainty cannot be achieved in proving negligence
circumstantially; but such proof may satisfy where the chain of circumstances leads
to a conclusion which is more probable than any other hypothesis reflected by the
evidence. However, if such evidence lends equal support to inconsistent
conclusions or is equally consistent with contradictory hypotheses, negligence is
not established. [Id. at 166-167 (quotation marks and citation omitted).]
Specifically, State Farm argues that Donaldson failed to produce medical evidence that connected
his neck and back injuries to the motor vehicle accident. State Farm seems to contend that
Donaldson needed unequivocal evidence associating his injuries to the crash, but even if these
injuries were preexisting conditions, “the aggravation or triggering of a preexisting condition can
constitute a compensable injury.” Fisher v Blankenship, 286 Mich App 54, 63; 777 NW2d 469(2009). State Farm points out that that Dr. Wilson diagnosed and treated Donaldson for soft-tissue
injuries, and that there was no connection between the MRI images related to the spine and the
accident. State Farm’s argument ignores the overall evidence regarding Donaldson’s initial
diagnosis and treatment.
First, Dr. McFadden referred Donaldson for the MRIs shortly after the accident to
determine if there was damage to the spine from the accident. The MRI images confirmed that
there was disc damage to both the lumbar and cervical areas. The results of the lumbar MRI in
particular were linked to the symptoms that Donaldson’s doctors treated when the radiologist noted
that there was “[l]imited spinal excursion through the flexion and extension studies, that could
represent musculoligamentous sprain/spasm under appropriate clinical settings.”
2
To the extent that State Farm argues that the trial court failed to provide adequate reasons for
denying its motion for a directed verdict during trial, the court’s opinion denying the motion for
reconsideration rectified any error because the court thoroughly explained why it denied the
motion for a directed verdict.
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Second, Dr. Wilson noted sprains in his treatment of Donaldson. Dr. Wilson treated
Donaldson after he was seen at the ER. He described how a whiplash injury can cause damage to
the cervical and lumbar spine. He also reviewed the MRI images, explaining where they showed
disc bulges in the spine. Dr. Wilson also testified that Donaldson had a Schmorl’s node in his
vertebrae, which is a type of disc herniation that can cause pain after a traumatic event. At the
time he examined Donaldson, Dr. Wilson found that he was neurologically intact, but was
suffering from pain primarily from strains and sprains in these same areas. Dr. Wilson concluded
that the pain and injuries were most likely caused by the motor vehicle crash.
Third, Dr. Morreale briefly addressed the Schmorl’s node. He did not offer an opinion as
to whether it was caused by the crash or if it became symptomatic after the accident. However, he
explained that if Donaldson did not complain about that condition before the accident and it was
only diagnosed afterward, it was more likely than not attributable to the crash, at least in part.
Overall, although Dr. Morreale offered limited testimony on the Schmorl’s node, he explained
how it could be connected to the accident, even if it involved a preexisting condition.
Finally, Dr. Daniel Harvey, a doctor of physical therapy, stated that he was not aware of
another source of Donaldson’s injuries to the cervical and lumbar regions, other than the crash,
and based on his treatment of Donaldson and information provided by Donaldson, it seemed likely
that the impairments were caused by the crash.
In sum, Donaldson offered medical testimony that linked his condition just after the crash,
which included the results of the MRIs, to the continuing pain he suffered in his lumbar and
cervical spine areas. Dr. Wilson, in particular, believed that Donaldson’s continuing pain in these
areas was likely caused by the crash. While there was no evidence directly stating that the results
of the MRIs of the spine were related to the crash, the testimony of Donaldson’s medical experts
as a whole factually supported his claim that his injuries in the lumbar and cervical spine areas
were caused by the crash, and the MRIs provided objective proof of those injuries shortly after the
collision. Because, viewing the evidence most favorably to Donaldson, the timeline of events,
coupled with the medical experts’ explanations of the nature of Donaldson’s injuries, was
sufficient to allow the jury to find that the injuries that plaintiff continued to complain of involving
his back and neck were caused by the accident, the trial court did not err by denying State Farm’s
motion for a directed verdict on that issue.
2. DONALDSON’S MOTION FOR A DIRECTED VERDICT
State Farm next asserts that the trial court erred by directing a verdict for Donaldson on the
issue of whether he suffered a subdural hematoma caused by the crash because Dr. Morreale did
not conclusively establish that Donaldson had a subdural hematoma when he was in the hospital
after the crash, and because State Farm’s expert, Dr. Casey, who was relying on the CT scan
reports, testified that there might not have been a subdural hematoma. We disagree.
Dr. Morreale testified at trial that the CT scan images from when Donaldson was in the
hospital showed that Donaldson had a subdural hematoma. Dr. Morreale explained that the other
records did not include the diagnosis of a subdural hematoma because it was overlooked.
Moreover, Donaldson produced a record from Dr. Morreale’s consult on Donaldson’s case from
December 7, 2018, when Donaldson was still in the hospital, which stated that Dr. Morreale had
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reviewed the head CT scans from December 6 and December 7 and found that Donaldson had “a
stable small RT temporo-parietal SDH,” and a subdural hematoma was included on Donaldson’s
discharge diagnoses. Dr. Morreale stated that “SDH” refers to subdural hematoma.3 Accordingly,
contrary to State Farm’s argument that Dr. Morreale’s trial testimony regarding a subdural
hematoma was not reliable because he did not first mention a subdural hematoma until years later,
there was a contemporaneous record supporting Dr. Morreale’s testimony that Donaldson was
diagnosed with a subdural hematoma while at the hospital immediately after the crash.4
Admittedly, Dr. Casey testified that the records he reviewed did not indicate that there a
subdural hematoma. But Dr. Casey did not review the imaging records on which Dr. Morreale
relied to conclude that there was a subdural hematoma, so his testimony failed to establish a
question of fact regarding the basis for Dr. Morreale’s opinion.
Under the circumstances, the trial court did not err by directing a verdict for Donaldson on
the limited issue whether Donaldson was diagnosed with a subdural hematoma caused by the crash.
IV. GREAT WEIGHT OF THE EVIDENCE
State Farm asserts that the jury’s verdict is against the great weight of the evidence. To
preserve a claim that a jury’s verdict is against the great weight of the evidence, a party must raise
the issue before the trial court in a motion for a new trial. Hyde v Univ of Mich Bd of Regents, 226
Mich App 511, 525; 575 NW2d 36 (1997). In a civil case, where a party fails to raise a great-
weight issue in a motion for a new trial, the issue is waived. Rickwalt v Richfield Lakes Corp, 246
Mich App 450, 464; 633 NW2d 418 (2001); see also Tolas Oil & Gas Exploration Co v Bach
Servs & Mfg, LLC, ___ Mich App ___; ___ NW2d ___ (Docket No. 359090, issued June 15, 2023),
slip op at 2-4 (in a civil case, an issue is waived if it is not raised before the trial court, and the
issue is not subject to review for plain error). Because State Farm did not raise this issue in a
motion for a new trial before the trial court, the issue has been waived and we decline to consider
it.
V. CASE EVALUATION SANCTIONS
In his brief on appeal, Donaldson argued that the trial court erred by denying his request
for case evaluation sanctions under former MCR 2.403(O)(1). At oral argument, however, he
withdrew that argument from this Court’s consideration. Consequently, we will not address it.
3
Beason agreed that Dr. Morreale diagnosed a subdural hematoma and that the imaging records
showed a subdural hematoma.
4
Later references in Donaldson’s records to there being no subdural hematoma only explained that
the hematoma had been reabsorbed by the brain, not that there was never a subdural hematoma
after the crash.
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In Docket Nos. 363048 and 363650, we affirm the judgment for Donaldson. In Docket
No. 364991, we affirm the issue raised solely because it was withdrawn from consideration at oral
argument. Donaldson, as the prevailing party in Docket Nos. 363048 and 363650, may tax costs.
MCR 7.219(A).
/s/ Douglas B. Shapiro
/s/ Michael J. Kelly
/s/ Thomas C. Cameron
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