Gallagher v. Parshall

97 Mich. App. 654 (1980) 296 N.W.2d 132

GALLAGHER
v.
PARSHALL

Docket No. 78-5418.

Michigan Court of Appeals.

Decided May 21, 1980.

Gray & Taylor, P.C., for plaintiffs.

Fortino, Plaxton & Moskal, for defendants.

Before: CYNAR, P.J., and V.J. BRENNAN and M.F. CAVANAGH, JJ.

PER CURIAM.

In the court below, the trial judge directed a verdict in favor of defendants and against plaintiff wife on her claim for loss of consortium, and directed a second verdict in favor of defendants and against plaintiff husband on the issue of causation as between defendants' negligence and plaintiff husband's hydrocephalic condition. The jury then returned a verdict of no cause of action on plaintiff husband's claim of serious impairment of bodily function under the no-fault act. Judgment was entered on the verdicts, from which plaintiffs take this appeal as of right.

Plaintiffs initially contend that the trial court committed reversible error in refusing to admit opinion testimony of two treating physicians regarding the seriousness of the impairment of plaintiff husband's bodily functions. We disagree.

We acknowledge that testimony in the form of an opinion is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. MRE 704. However, the testimony must be "otherwise admissible" under MRE 702 to be allowed into evidence. Ford v Clark Equipment Co, 87 Mich. App. 270, 280; 274 NW2d 33 (1978).

Before admitting expert opinion evidence, three factors must be established to the trial court's satisfaction. First, the witness must be qualified as an expert in his field. Second, there must be facts which require an expert's interpretation or analysis. Third, the witness's knowledge must be peculiar to experts rather than to lay persons. Dep't of Natural Resources v Frostman, 84 Mich. App. 503, 505; 269 NW2d 655 (1978). Such a witness is entitled to express an opinion, or conclusion, where that opinion is dependent on professional or scientific knowledge or skill. Id. Where all the relevant facts can be introduced in evidence and the jury is competent to draw a reasonable inference therefrom, opinion evidence will not be received. Dudek v Popp, 373 Mich. 300, 306; 129 NW2d 393 (1964).

We conclude that the trial court properly excluded the testimony of Dr. Graham. His own testimony establishes that he was not qualified to give an expert opinion in the area of hydrocephalic conditions. Therefore, his opinion was not "otherwise admissible" under MRE 702. With regard to any opinion testimony by him relative to plaintiff's neck and chest injuries, we likewise conclude that it would not be "otherwise admissible" under MRE 702, because the jury was fully capable, on the record before them, to determine the question of serious impairment vel non with respect to these injuries.

As to the trial court's exclusion of the opinion testimony of Dr. Devlin regarding whether plaintiff's stiff neck constituted serious impairment, we are fully in accord therewith. Given the detailed testimony regarding the diagnosis of the injuries and the doctor's explication of the medical terms utilized in such diagnosis, we again conclude that the jurors were capable of reaching their own conclusion thereon unaided by any expert's opinion on the matter.

Plaintiffs next argue that the trial court reversibly erred in directing a verdict in favor of defendant on plaintiff wife's claim for loss of consortium. We reject this contention.

In order to assert a claim in tort under the common law for injuries arising out of the ownership, maintenance or use of a motor vehicle, the injured plaintiff (or his representative) must first establish serious impairment of bodily function, permanent serious disfigurement, or death. MCL 500.3135(1); MSA 24.13135(1). Warner v Brigham, 90 Mich. App. 640, 643; 282 NW2d 428 (1979). Absent such a preliminary showing, any claim for loss of consortium under the statute will not lie. Id. Therefore, even assuming the direction of a verdict on the claim for loss of consortium was error, such error does not necessitate reversal, given the jury's finding of no cause of action on the necessary underlying claim of serious impairment of bodily function. GCR 1963, 529.1.

Furthermore, we find plaintiffs' complaint regarding the failure of the court below to give an explanatory instruction concerning the dismissal of the consortium claim to be of no moment, given their failure to request same prior to the jury's retiring to deliberate. GCR 1963, 516, cf., Sakorraphos v Eastman Kodak Stores, Inc, 367 Mich. 96, 99; 116 NW2d 227 (1962).

Nor do we find any reversible error in the trial court's grant of defendants' motion for a directed verdict on the issue of causation as between defendant's negligence and plaintiff husband's hydrocephalic condition. Viewing the evidence in the light most favorable to plaintiffs, the nonmoving party, Wynn v Cole, 91 Mich. App. 517, 524; 284 NW2d 144 (1979), we conclude that it failed to establish a prima facie case; therefore, direction of verdict in favor of defendants was not improper. Id. The only neurologist to testify stated unequivocally that the accident was not the cause of the hydrocephalus. Plaintiff husband's own physician buttressed this conclusion in testifying that the symptoms which he observed which are normally associated with a hydrocephalic condition did not manifest themselves immediately after the accident, but some 21 months later. The expert in neurology, Dr. Field, had testified that such symptoms set in rather rapidly after a blow to the head is received, if such impact is the cause of the condition. The blow to plaintiff husband's head which occurred in the accident was alleged to be the cause of his condition. There was therefore no testimony couched in terms of medical possibilities so as to make the case one for the jury's consideration. Howard v City of Melvindale, 27 Mich. App. 227; 183 NW2d 341 (1970).

Lastly, we address plaintiffs' argument to the effect that the lower court reversibly erred in refusing to direct a verdict in favor of plaintiffs on the issue of whether or not plaintiff husband suffered a serious impairment of bodily function. We disagree. On the record before us, we conclude that reasonable persons could differ as to the meaning of the evidence in question, especially when viewed in the light most favorable to defendants, the nonmoving party. Therefore, the motion for directed verdict was properly denied. Ringo v Richardson, 88 Mich. App. 684, 687; 278 NW2d 717 (1979), lv den 407 Mich. 906 (1979).

We detect no error mandating reversal, and therefore affirm.

Affirmed. Costs to defendants.