Jasmine Harmon v. Tomas James Ewing

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
JASMINE HARMON, UNPUBLISHED
June 10, 2021
Plaintiff-Appellant,
v No. 350857
Calhoun Circuit Court
TOMAS JAMES EWING, THOMAS E. MASON LC No. 2018-000197-NI
and JULIA LYNN EVERITT,
Defendants-Appellees.
Before: STEPHENS, P.J., and SAWYER and BECKERING, JJ.
PER CURIAM.
In this action to recover tort damages under the no-fault act, MCL 500.3101 et seq.,
plaintiff, Jasmine Harmon, appeals by right the order granting summary disposition to defendants,
Tomas Ewing, Thomas Mason, and Julia Everitt. The trial court concluded that, because plaintiff
failed to create a genuine issue of material fact that she suffered a serious impairment of body
function, MCL 500.3135(1), defendants were entitled to summary disposition as a matter of law.
We affirm.
I. PERTINENT FACTS
On November 29, 2015, plaintiff was involved in “chain reaction” automobile collision on
westbound I-94 while riding as a passenger in a vehicle driven by defendant Ewing. Claiming that
the car operated by defendant Mason ahead of him kept varying his speed, Ewing ran into the back
of Mason’s car, and in turn defendant Everitt ran into the back of Ewing’s car. Plaintiff testified
at her deposition that she did not lose consciousness and was able to exit the vehicle and walk on
her own, but she felt pain in her right arm, her chest, her neck and upper back, and the ribs on her
right side. Emergency Medical Services did not respond to the crash, and plaintiff explained that
she did not tell the responding police officer she was hurt because the pain was bearable and she
did not think it signaled anything serious.
Over the next two weeks, plaintiff sought medical attention at Oakwood Annapolis
Hospital, Detroit Receiving Hospital, and her primary care physician. Plaintiff underwent physical
examinations, multiple chest x-rays, ultrasounds, and a computed tomography (CT) scan of her
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head, none of which revealed a physical injury or other acute process, including bruising1 to
account for her various complaints during this time period of pain, headache, and nausea, or
showed anything out of the ordinary. Records from Detroit Receiving Hospital show a likely
diagnosis of “acute left rib contusion” based on plaintiff’s clinical complaints, which plaintiff
testified manifested itself through a shortness of breath that went away after three weeks.2 In
addition, plaintiff complained of pain during a routine visit to her primary care physician at Health
Centers, for which her physician appears to have prescribed pain medication.
In January 2016, plaintiff moved to Atlanta, Georgia, to attend a cosmetology program.
While in Georgia, she began treating with Dr. Leana Kart at Northwest Chiropractic. She received
chiropractic manipulation on February 15, 2016, but did not receive treatment again until the end
of September.3 Approximately a year after the accident, Dr. Kart signed a “disability certificate”
that indicated plaintiff’s complete disability from November 25, 2016 through December 4, 2016,
because of “low back and neck pain due to spinal trauma.” In a letter dated December 22, 2016,
Dr. Kart summarized her treatment of plaintiff, explaining that she had diagnosed plaintiff with
“cervical sprain strain, muscle spasms, shoulder segmental dysfunction, lumbar sprain strain, [and]
sacroiliac joint sprain strain.” Dr. Kart further explained that plaintiff “was treated in a
conservative manner with spinal manipulation to decrease and increase range of motion with
several modalities.” She also asserted that “[t]he objective findings and subjective complaints are
directly related to her accident. Her initial injury has improved greatly.”
In January 2017, plaintiff underwent an independent medical evaluation for insurance
purposes. The examining physician, Dr. Ralph D’Auria, confirmed Dr. Kart’s diagnoses, but
opined that the treatment plan of adjustments and massages three times per week was not
reasonable or appropriate for sprains/strains that occurred more than a year ago because the
conditions would have long been resolved and “would not necessitate continued treatment.”
Noting that plaintiff said she did not have any pain between November 2015 and February 2016,
and observing the gap in plaintiff’s treatment from February 2016 to September 2016, Dr. D’Auria
opined that “[t]hese lapses in treatment belie the assertion that her current complaints are related
to the injury on November 29, 2015.” The doctor concluded that plaintiff had reached maximum
medical improvement, there was no permanent impairment resulting from the accident, and no
need for attendant care or replacement services. Plaintiff’s insurer enclosed Dr. D’Auria’s report
in a letter to plaintiff informing her that it was placing her claim on inactive status.
Plaintiff successfully completed her cosmetology program in June 2017. X-rays taken of
plaintiff’s cervical and thoracic spine in July 2017 were normal. X-rays of her cervical spine
showed that “[t]he vertebral body height, disk spacing, and alignment are maintained” and that
1
Plaintiff testified that she had bruising from the seatbelt, but that resolved after two to three
weeks.
2
Records do not support plaintiff’s assertion that a doctor at Detroit Receiving Hospital diagnosed
her with a broken rib, or ribs.
3
Although plaintiff did not produce documentation of it, she testified that she underwent an MRI
in Atlanta a few months after the accident due to headaches, and the MRI results were normal.
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there was “no evidence of fracture or subluxation.” X-rays of her thoracic spine revealed no
paraspinal soft tissue swelling and “[n]o significant Ossetia findings in the thoracic spine.” In
November 2017, plaintiff’s primary care physician recommended physical therapy. However,
plaintiff did not undergo physical therapy because her insurance company would not pay for it.
In a complaint filed in January 2018, plaintiff alleged a single count of negligence against
all three defendants. Plaintiff was deposed in October 2018. Her testimony did not indicate that
the accident had disrupted pursuit of her educational goals. In addition, she testified that apart
from missing two days of work after the accident, and taking three months off while she lived in
Georgia, she had been able to perform her employment duties. However, she did testify to
continued headaches and pain in her feet and along her entire back and that pain restricted certain
of her recreational and social activities. On March 4, 2019, plaintiff underwent defense medical
examinations with Leonard Sahn, M.D., and Gino Sessa, M.D., for purposes of this litigation. Both
doctors concluded that there was no objective basis for plaintiff’s clinical symptoms and that her
prognosis was excellent. Sessa opined that an MRI “could potentially objectify [plaintiff’s]
symptom.” There is no record of plaintiff having undergone the suggested MRI.
All three defendants moved for summary disposition in August 2019. Each argued in
essence that plaintiff had failed to show that the accident resulted in a serious impairment of body
function and that, even if she had made such showing, she had failed to establish that the alleged
impairment affected her general ability to lead her normal life. In response, plaintiff relied on her
deposition testimony and chiropractic records to provide evidence of objectively manifested
impairments and examples of how her impairments affected her daily life.
The trial court heard arguments on defendants’ motions for summary disposition on
September 16, 2019. The parties’ arguments regarding whether plaintiff had met the threshold
requirements for recovering tort damages under MCL 500.3135(1) were consistent with their
briefs. Ruling from the bench, the trial court referred to the three-prong McCormick test4 for
determining whether a person had satisfied MCL 500.3135(1), and concluded that plaintiff had
failed to meet two of the test’s requirements. She had not presented evidence of an objectively
manifested impairment, and she had not shown that any alleged impairment affected her general
ability to lead her normal life. Accordingly, the trial court granted defendants’ motions for
summary disposition. The court did not reach the issue of negligence.
II. ANALYSIS
Plaintiff contends on appeal that the trial court erred by summarily dismissing her case
because her deposition testimony and records from her chiropractic treatment establish that the
traffic accident caused her to suffer a serious impairment of body function that affects her general
4
The test is thoroughly discussed in the discussion section. Briefly, to show a serious impairment
of body function, a plaintiff must present evidence establishing: (1) an objectively manifested
impairment (2) of an important body function (3) that affects the person’s general ability to lead
his or her normal life.” McCormick v Carrier, 487 Mich 180, 195; 795 NW2d 517 (2010).
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ability to lead her normal life. After a careful review of plaintiff’s medical records and other
evidence, we conclude that the trial court did not err in granting summary disposition.
A. STANDARD OF REVIEW
The trial court granted summary judgment to defendants under MCR 2.116(C)(10). A
motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Joseph v Auto
Club Ins Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012). The moving party has the initial
burden to identify “the issues as to which the moving party believes there is no genuine issue as to
any material fact,” MCR 2.116(G)(4), and must support the motion with “[a]ffidavits, depositions,
admissions, or other documentary evidence in support of the grounds asserted in the motion,”
MCR 2.116(G)(3). If the nonmoving party has the burden to prove the claim at trial, the moving
party may satisfy its burden in two ways: “by submitting affirmative evidence that negates an
essential element of the nonmoving party’s claim, or by demonstrating to the court that the
nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving
party’s claim.” Lowrey v LMPS & LMPJ, 500 Mich 1, 7; 890 NW2d 344 (2016) (quotation marks,
citation, and brackets omitted).
If the moving party properly asserts and supports his or her motion for summary
disposition, the “burden then shifts to the opposing party to establish that a genuine issue of
disputed fact exists.” Quinto v Cross and Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).
To avoid summary disposition, the nonmoving party must present evidence that establishes that
there is a genuine issue of disputed fact on the issue raised by the moving party. See Barnard Mfg
Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 374-375; 775 NW2d 618
(2009). “A genuine issue of material fact exists when the record, giving the benefit of reasonable
doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.”
West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). “[I]f there is no genuine
issue regarding any material fact and the moving party is entitled to judgment as a matter of law,”
summary disposition is appropriate. Piccione as Next Friend of Piccione v Gillette, 327 Mich App
16, 19; 932 NW2d 197 (2019).
B. MCL 500.3135(1)
Tort liability is limited under the Michigan no-fault insurance act. McCormick v. Carrier,
487 Mich 180, 189; 795 NW2d 517 (2010). Pursuant to MCL 500.3135(1),5
A person remains 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.
5
The version of the statute current at the time of the accident and throughout most of the trial court
proceedings in this case was MCL 500.3135, as amended by 2012 PA 158, made effective October
1, 2012. The only relevant, substantive change made by the recent amendment of the no-fault act,
2019 PA 21 and 22, was the incorporation of the Supreme Court’s ruling in McCormick.
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Plaintiff claims to have suffered a serious impairment of body function. A “ ‘serious
impairment of body function’ means an objectively manifested impairment of an important body
function that affects the person’s general ability to lead his or her life.” MCL 500.3135(5). To
show a “serious impairment of body function,” a plaintiff must establish three prongs: “(1) an
objectively manifested impairment (2) of an important body function that (3) affects the person’s
general ability to lead his or her normal life.” McCormick, 487 Mich at 195. “[T]he common
meaning of “objectively manifested” in MCL 500.3135[5][6] is an impairment that is evidenced by
actual symptoms or conditions that someone other than the injured person would observe or
perceive as impairing a body function.” Id. at 196. “[T]he proper inquiry is whether the
impairment is objectively manifested, not the injury or its symptoms.” Id. at 197. “[W]hile an
injury is the actual damage or wound, an impairment generally relates to the effect of that damage.
Accordingly, when considering an “impairment,” the focus “is not on the injuries themselves, but
how the injuries affected a particular body function.” Id. (quotation marks and citation omitted).
“[P]laintiffs must introduce evidence establishing that there is a physical basis for their subjective
complaints of pain and suffering and [] showing an impairment generally requires medical
testimony.” Id. at 198 (quotation marks and citation omitted). A trial court may determine as a
matter of law whether a plaintiff has met the threshold requirements of MCL 500.3135 if there is
no material factual dispute regarding the nature and extent of the plaintiff’s injuries. MCL
500.3135(2)(a); see also id. at 215.7
With regard to the first prong of the McCormick test, defendants established through
hospital records, records of plaintiff’s x-ray results, and reports from three physicians who
examined plaintiff that there were no objective findings, i.e., no physical basis, to support
plaintiff’s subjective complaints of pain. See Lowrey, 500 Mich at 7. To avoid summary
disposition, plaintiff had to present evidence that established a genuine issue of disputed fact
regarding whether she suffered a serious impairment of a body function. See Barnard Mfg Co,
Inc, 285 Mich App at 374-375.
As evidence that she suffered a serious impairment of body function, plaintiff attached to
her motion for summary disposition the records from her visits to Oakwood Annapolis Hospital
and Detroit Receiving Hospital. These records show that plaintiff sought treatment for pain, but
they do not show an objectively manifested impairment as a basis for that pain. See McCormick,
6
The McCormick Court referred to MCL 500.3135(7), which, at that time, contained the
“objectively manifested impairment” language. See 2002 PA 697.
7
Although the trial court did not address whether there was a material factual dispute that would
prevent it from deciding as a matter of law whether plaintiff suffered an objectively manifested
impairment of body function, MCL 500.3135(2)(a), our review of the record does not reveal a
material factual dispute as to the nature and extent of plaintiff’s injuries. Defendants do not deny
that plaintiff was involved in an accident, that she experienced pain, or that she sought and received
treatment on various occasions thereafter. Rather, the parties’ dispute revolves around whether
these facts meet the legal threshold established by MCL 500.3135, as interpreted by McCormick.
In addition, plaintiff does not allege on appeal that the trial court improperly considered as a matter
of law whether she met the threshold requirement of MCL 500.3135.
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487 Mich at 197. Plaintiff also relied on her deposition. However, plaintiff’s subjective
complaints of pain cannot, by themselves, establish an objectively manifested impairment.8 See
id. (indicating that “the serious impairment threshold was not met by pain and suffering alone,”
but also required a physical basis for subjective complaints). In addition, plaintiff presented a
disability certificate signed by her chiropractor. But the certificate does not provide a diagnosis or
physical basis for plaintiff’s pain; the basis for the restrictions appears to be plaintiff’s subjective
complaints of neck pain and low back pain. Plaintiff also presented the letter from her insurer
informing her that her claim had been placed on inactive status, accompanied by Dr. D’Auria’s
report. The letter is of no evidentiary value to the issue at hand, although it does support plaintiff’s
explanation that she did not pursue physical therapy because her insurer would not pay for it, and
Dr. D’Auria’s report supports defendants’ position more than plaintiff’s.
Plaintiff also supported her claim of a serious impairment of body function with records of
her clinical chiropractic examination. These records indicated limitations to all aspects of
plaintiff’s cervical and lumbar range of motion and multiple areas of pain. In addition, plaintiff
presented Dr. Kart’s letter from December 2016, in which she offered her diagnoses and asserted
that they were related to the 2015 accident. However, this evidence is based on subjective data
and is not sufficient under McCormick to establish a triable question of fact regarding whether
plaintiff suffered an objectively manifested impairment of an important body function.
The plaintiff in McCormick suffered a broken left ankle when a coworker backed a truck
into him, knocking him down, and then drove over his ankle. McCormick, 487 Mich at 185. The
accident occurred in January 2005. The plaintiff underwent two surgeries and months of physical
therapy. Afterwards, a medical examination cleared the plaintiff to return to work, but restricted
him from prolonged standing or walking. Those restrictions were lifted two months later. Id.
Nevertheless, the plaintiff “had difficulty walking, climbing, and crouching because of continuing
ankle pain.” Id. at 186. A functional capacity evaluation (FCE) conducted in March 2006
revealed, among other things, that the “range of motion in his left ankle was not within normal
limits and that difficulty climbing and lifting weights had been reported and observed.” Id.
In May 2006, a physician examined the plaintiff and “found ‘no objective abnormality to
correspond with his subjective complaints.’ ” Id. An FCE performed in August 2006, “affirmed
that plaintiff could return to work without restriction and was capable of performing the tasks
required for his job,” but also noted that the plaintiff’s “range of motion in his left ankle was still
not within normal limits, although it had improved since the March 2006 FCE.” Id.
The McCormick Court concluded that the plaintiff had shown an objectively manifested
impairment of body function, reasoning as follows:
There is no dispute that plaintiff has presented evidence that he suffered a broken
ankle and actual symptoms or conditions that someone else would perceive as
impairing body functions, such as walking, crouching, climbing, and lifting weight.
8
Plaintiff testified that a doctor at Detroit Receiving diagnosed her with a broken rib, or ribs.
However, the hospital records do not support her testimony.
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Even 14 months after the incident, an FCE report observed that ankle pain and a
reduced range of motion inhibited these body functions. Thus, plaintiff has
satisfied this prong. [McCormick, 487 Mich at 218.]
Thus, the McCormick Court deemed the plaintiff to have satisfied the first prong of its test because
he presented evidence of symptoms and conditions that others could observe as impairing his
ability to walk, crouch, climb, and lift weight. See id. These observable symptoms and conditions
had as a physical basis plaintiff’s undisputed broken ankle.
Unlike the McCormick plaintiff, the present plaintiff has presented no evidence of any
identifiable, specific injury related to the accident. The McCormick plaintiff could point to his
broken ankle as the physical basis for various observable conditions affecting his ability to walk,
crouch, climb, and lift weight. However, the present plaintiff presents no such objective evidence
of an underlying physical injury from which could arise conditions or symptoms perceivable by
others. To the extent plaintiff presents her chiropractor’s diagnosis of a sprain/strain, this diagnosis
is based on plaintiff’s recitation of her history of back pain and on a clinical examination that relied
on plaintiff’s subjective assessment of the type and severity of her pain. Even if the Court assumes
for the sake of argument that plaintiff’s limited range of motion is an impairment, plaintiff has
presented no evidence that it was objectively manifested. The only evidence she has presented of
any alleged impairment is her own subjective complaints of pain and self-imposed limitations.
Viewing the evidence in the light most favorable to plaintiff, we conclude that plaintiff has
failed to present sufficient evidence to create a genuine issue of material fact as to the first prong
of the McCormick test, i.e., that she suffered “an objectively manifested impairment.” Id. at 195.
Because plaintiff has not established a triable issue regarding whether she suffered an objectively
manifested impairment, we need not address whether the trial court erred in concluding that
plaintiff also failed to meet the third prong of the McCormick test. Id. at 200 (“[I]f the injured
person has suffered an objectively manifested impairment of body function, and that body function
is important to that person, then the court must determine whether the impairment ‘affects the
person’s general ability to lead his or her normal life.’ ”) (emphasis added). Having failed to
establish a triable issue as to the first of the three required prongs, plaintiff cannot go forward with
her claim, and the trial court did not err in granting summary disposition to defendants.9
Affirmed.
/s/ David H. Sawyer
/s/ Jane M. Beckering
9
In light of our disposition of this issue, we decline to address plaintiff’s claims regarding
defendants’ negligence associated with the accident.
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