20231130_C362389_52_362389.Opn.Pdf ( 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
JOMANA FAKHOURI, UNPUBLISHED
November 30, 2023
Plaintiff-Appellant,
v No. 362389
Wayne Circuit Court
GIOVANNI POMA and BUCK’S OIL COMPANY, LC No. 20-002247-NI
INC.,
Defendants-Appellees.
Before: O’BRIEN, P.J., and K. F. KELLY and M. J. KELLY, JJ.
PER CURIAM.
In this third-party no-fault case, plaintiff, Jomana Fakhouri, appeals as of right an order
denying her motion for judgment notwithstanding the verdict (JNOV) or a new trial following
judgment entered on a jury verdict of no cause of action. We affirm for the reasons stated in this
opinion.
I. BASIC FACTS
In March 2019, Fakhouri was a passenger in a vehicle stopped at a red light. Defendant,
Giovanni Poma, who was driving a vehicle for his employer, defendant Buck’s Oil Company,
failed to stop for the red light. He rear-ended the vehicle stopped behind Fakhouri’s vehicle, and
the impact caused that vehicle to crash into Fakhouri’s vehicle. Fakhouri’s vehicle, propelled by
the collision, crashed into the vehicle in front of it. Fakhouri lost consciousness. She was
transported by ambulance to the hospital. She testified that she felt severe pain in her neck, back,
knees, hips, and left shoulder. Photographs admitted at trial also depicted glass fragments in her
skin and showed her wearing a cervical collar.
Following a jury trial, the jury found that Fakhouri was injured as a result of the motor
vehicle crash, but that she did not sustain a serious impairment of an important bodily function or
any permanent serious disfigurement. Fakhouri moved for JNOV, or, in the alternative, a new
trial. She argued that in order to show a serious impairment of an important bodily function, she
had to establish “(1) an objectively manifested impairment (2) of an important body function that
(3) [affected her] general ability to lead [her] normal life.” See McCormick v Carrier, 487 Mich
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180, 195; 795 NW2d 517 (2010). She asserted that the no-cause verdict was against the great
weight of the evidence because the evidence clearly established each requirement. The trial court
denied her motion. This appeal follows.
II. SERIOUS IMPAIRMENT OF IMPORTANT BODY FUNCTION
A. STANDARD OF REVIEW
Fakhouri argued that the trial court erred by denying her motion for JNOV. We review de
novo a trial court’s decision on a motion for JNOV. Taylor v Kent Radiology, 286 Mich App 490,
499; 780 NW2d 900 (2009). In doing so, this Court reviews “the evidence and all legitimate
inferences in the light most favorable to the nonmoving party.” Wilkinson v Lee, 463 Mich 388,
391; 617 NW2d 305 (2000). “If reasonable jurors could have honestly reached different
conclusions, the jury verdict must stand.” Morinelli v Provident Life & Accident Ins Co, 242 Mich
App 255, 260–261; 617 NW2d 777 (2000).
She also asserts that the trial court erred by denying her motion for a new trial. A court’s
decision to deny a motion for new trial is reviewed for an abuse of discretion. Guerrero v Smith,
280 Mich App 647, 666; 761 NW2d 723 (2008). A court abuses its discretion when its decision
falls “outside the range of reasonable and principled outcomes.” Barrow v Wayne Co Bd of
Canvassers, 341 Mich App 473, 484; 991 NW2d 610 (2022). “The jury’s verdict should not be
set aside if there is competent evidence to support it.” Barnes v 21st Century Premier Ins Co, 334
Mich App 531, 551-552; 965 NW2d 121 (2020). Witness credibility and “how much weight
should be given to testimony” are matters left for the jury. Id. at 551-552.
B. ANALYSIS
Tort liability for noneconomic losses arising out of the ownership, maintenance, or use of
a motor vehicle is limited to instances where “the injured person has suffered death, serious
impairment of body function, or permanent serious disfigurement.” MCL 500.3135(1). At issue
on appeal is whether Fakhouri sustained a serious impairment of a body function. In order to
establish that he or she suffered a serious impairment of a body function, the plaintiff must prove
that there is “(1) an objectively manifested impairment (observable or perceivable from actual
symptoms or conditions) (2) of an important body function (a body function of value, significance,
or consequence to the injured person) that (3) affects the person’s general ability to lead his or her
normal life (influences some of the plaintiff’s capacity to live in his or her normal manner of
living).” McCormick, 487 Mich at 215. Whether a plaintiff meets that burden must be analyzed
on a case-by-case basis because “it is inherently fact- and circumstance-specific” inquiry. Id.
On appeal, Fakhouri points out that the jury found that she sustained an injury as a result
of the motor vehicle crash. She directs this Court to testimony from Dr. Neema Bayran, a board-
certified physician specializing in anesthesiology and pain management who treated her following
the crash. Dr. Bayran noted that Fakhouri had “spinal tenderness associated with pain,” which he
attributed to the crash. She also relies upon diagnostic evidence showing an injury to her cervical
and lumbar spine. Dr. Bayran testified that the results of Fakhouri’s various magnetic resonance
imaging (MRI) scans revealed a 3-millimeter disc protrusion, a 4-millimeter disc herniation, and
a number of annular tears in Fakhouri’s spinal discs following the crash. Dr. Bayran indicated that
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Fakhouri continued to suffer from pain in her neck, shoulders, lower back, left posterior thigh, in
addition to headaches. He added that the physical examination of Fakhouri revealed tenderness
over her midline cervical spine and paraspinal muscles on both sides, “aggravated by extension
and loading of cervical facet joints[,]” in addition to a reduced range of motion concerning the
flexion and extension of plaintiff’s cervical spine, right shoulder, and lumbar spine. Dr. Bayran
further testified that Fakhouri was diagnosed with “neck pain and cervical radiculopathy secondary
to disc protrusion causing mild central and neuroforaminal narrowing bilaterally, causally related
to a car accident on March 19, 2019,” with a second working diagnosis of “[a]xial neck pain and
headache secondary to cervical facet joint involvement[,]” and “[l]ower back pain and left lumbar
radiculopathy.” Dr. Bayran asserted that Fakhouri’s spinal injuries were permanent, as “typically
once you have basically disc protrusion, there is no reversal of that. Not even surgery can actually
take the patient back to where it was.” Similarly, Dr. Kevin Tu, a board-certified physician
specializing in sports medicine and orthopedic surgery, provided similar testimony concerning the
cause, nature, and extent of Fakhouri’s injuries. He posited that Fakhouri’s left shoulder
impingement and adhesive capsulitis resulted from the underlying motor vehicle crash.
Although Dr. Bayran and Dr. Tu’s testimony supports Fakhouri’s position, they were not
the only witnesses to testify regarding the nature and extent of Fakhouri’s injuries. Dr. Barbara
Heller, Dr. Adeel Khalid, and Dr. Richard Schmidt, conducted medical examinations of Fakhouri.
Each fundamentally disagreed with the findings of Dr. Bayran and Dr. Tu.
First, Dr. Heller, a board-certified physician specializing in physiatry, testified that, while
Fakhouri attributed her injuries to the underlying motor vehicle crash, her medical records revealed
that she visited with her primary care physician on September 21, 2018, for persistent lower back
pain, and rated her pain a 10 out of 10. Further, approximately two weeks before the crash,
Fakhouri sought treatment with her primary care physician after she fell and injured her back and
head. During that appointment, Fakhouri reported that she had experienced numbness and tingling
in her hands for the past two or three years. During Dr. Heller’s physical examination of Fakhouri,
she observed that Fakhouri’s lumbar spine and hip joint range of motion were full and pain-free,
that Fakhouri possessed normal strength in all muscle groups in her legs, and that Fakhouri solely
suffered from a mildly decreased range of motion in her left shoulder and neck. Following
Fakhouri’s evaluation, Dr. Heller opined that Fakhouri’s “cervical and lumbar conditions are
degenerative in nature” and that they were only temporarily exacerbated by the motor vehicle
crash. She also disbelieved Fakhouri’s claim that her carpal tunnel syndrome was caused by the
crash because there were “medical records authored by her primary care physician that indicates
symptoms consistent with carpal tunnel syndrome two to three years prior the motor vehicle
accident.” Dr. Heller concluded that Fakhouri “could do most anything she wanted that she was
able to do prior to the motor vehicle accident[,]” as her range of motion was primarily preserved.
Next, Dr. Khalid, a board-certified physician specializing in radiology and neuroradiology,
reviewed Fakhouri’s May 10, 2019 cervical spine MRI, and noted that there was “no fracture of
the bones, no slipping of the bones, no bleeding, no swelling, and none of [Fakhouri’s spinal] discs
were leaking any of the jelly from inside of the disc outside.” Dr. Khalid opined that the MRI
results reflected that of a normal 51-year-old woman, with no observable injuries related to the
underlying crash. Dr. Khalid further reviewed various cervical spine and lumbar spine MRI scans
of Fakhouri, and he testified that all of the aforementioned images depicted normal, age-
appropriate, degenerative changes of the captured areas. With regard to the April 19, 2020 MRI
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of Fakhouri’s left shoulder, Dr. Khalid stated that the image portrayed “no fracture, slipping of the
bones, dislocation, bleeding, swelling, or disruption of any of the tendons or ligaments[,]”
however, there were age-appropriate degenerative changes of the tendons. Dr. Khalid ultimately
stated that “[b]ased upon the objective findings, the MRIs, the [computed tomography (CT)] scan,
the literature and all of the supportive evidence, I found no evidence of any objective finding of
objective acute injury of the neck, low back or shoulder, and no change in the normal expected
age-appropriate appearance of the neck and low back when I compared the MRIs done shortly
after the accident to the MRIs done about a year after the accident.”
Finally, Dr. Schmidt, a board-certified orthopedic surgeon, stated that (1) Fakhouri’s
clinical examination was objectively within normal limits regarding her neck, lower back, and left
shoulder; (2) that she exhibited strong symptom magnification, and while she denied any prior
history of injury to the aforementioned areas, her medical record indicated otherwise; (3) he agreed
with the opinion of Dr. Khaled that the degenerative changes to Fakhouri’s neck, back, and
shoulder, were attributable to age, as opposed to the underlying motor vehicle crash; and (4)
Fakhouri solely suffered soft tissue injuries due to the underlying incident, and that Fakhouri’s
carpal tunnel syndrome was distinct.
Given the differing opinions regarding the nature and extent of Fakhouri’s injuries, the jury
was free to determine what weight and credibility to afford to each witness when determining
whether Fakhouri sustained a serious impairment of bodily function. See Wiley v Henry Ford
Cottage Hosp, 257 Mich App 488, 491; 668 NW2d 402 (2003) (stating that “this Court recognizes
the unique opportunity of the jury and the trial judge to observe witnesses and the fact-finder’s
responsibility to determine the credibility and weight of the testimony”). We conclude that, on
this record, defendants presented sufficient competent evidence to support the jury’s finding of no
serious impairment of a body function. See Shuler v Michigan Physicians Mut Liab Co, 260 Mich
App 492, 518; 679 NW2d 106 (2004) (noting that a motion for a new trial based on great weight
of the evidence grounds should only be granted if “the evidence preponderates so heavily against
the verdict that it would be a miscarriage of justice to allow the verdict to stand”).
On appeal, Fakhouri focuses on the evidence that supports her position. She also equates
the jury’s finding that she sustained an injury with a finding that she sustained an objectively
manifested impairment to her spine and shoulder. Viewing the evidence in the light most favorable
to the jury, however, it is possible that the jury found she was injured in the crash given that she
lost consciousness and given that there were photographs of glass fragments in her skin. They
may have also found that she was injured because her preexisting conditions were exacerbated.
That does not, however, mean that the jury was required to find that the injuries caused an
impairment of an important bodily function or that it affected her general ability to lead her normal
life. In this case, the trial court correctly chose not to substitute its judgment for that of the jury
by reweighing the evidence in a light most favorable to Fakhouri. See Barnes, 334 Mich App
at 551. As a result, the trial court did not err by denying Fakhouri’s motion for JNOV and/or a
new trial.
III. TRIAL COURT MISSTATEMENT OF THE LAW
Fakhouri next asserts that the trial court misstated the law by imposing a temporal
requirement when analyzing whether she had shown that there was a serious impairment of an
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important body function. In McCormick, our Supreme Court explained that, with respect to
whether an objectively manifested impairment of an important body function affected the
plaintiff’s general ability to lead his or her normal life, there is no temporal limit as to how long
the plaintiff’s life had to have been affected. McCormick, 487 Mich at 202-203. That does not,
however, mean that temporal considerations are irrelevant. See id. at 222 (stating that “there is
simply no basis [to conclude] that temporal considerations are irrelevant or that a momentary
impairment is sufficient.”); see also MCL 500.3135(5)(c) (“Although temporal considerations may
be relevant, there is no temporal requirement for how long an impairment must last.”).
Fakhouri points out that the trial court stated in its opinion denying her motions for JNOV
and new trial that “even with the doctor saying that she had a[n] injury for weeks, weeks isn’t
sufficient and the jurors used all of the testimony that . . . was presented to them.” (Emphasis
added). Yet, the jury was free to determine—after weighing the evidence and witness credibility—
whether “weeks” was sufficient or was insufficient in this particular case. The mere fact that it
found against Fakhouri does not render the verdict against the great weight of the evidence, nor
mandate a new trial. The trial court’s comment, although somewhat inartful, recognizes that the
matter could not be resolved as a matter of law because there was conflicting evidence as to the
nature and extent of Fakhouri’s injuries. See MCL 500.3135(2)(a) (providing that whether there
is a serious impairment of an important body function can be determined as a matter of law when
there is not a factual dispute concerning the nature and extent of the person’s injuries). Indeed,
the court correctly determined that the matter of whether Fakhouri suffered a serious impairment
of an important body function was a credibility issue pertaining to the jury, that the jury was free
to determine which physician’s testimony “to believe, to what extent they believe, and how much
they believe[,]” and that while the jury agreed that Fakhouri sustained injuries because of the crash,
the evidentiary record included details regarding Fakhouri’s previous fall in the driveway and other
health issues. The trial court noted that the jury found that “there was an injury but they didn’t
think that the injury was of a serious impairment of a body function, based on what they heard and
what they—what they gleaned and that was fully within their province.” Viewed in context, then,
it is clear that the court did not improperly impose a temporal requirement upon Fakhouri’s case.
Instead, it left the disputed matter in the care of the jury and, because the jury verdict was properly
supported, it did not overturn it based upon the conflicting evidence highlighted by Fakhouri in
her motion.
Affirmed. Defendants may tax costs as the prevailing parties. MCR 7.219(A).
/s/ Colleen A. O’Brien
/s/ Kirsten Frank Kelly
/s/ Michael J. Kelly
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