By Thomas Franz
BridgeTower Media Newswires
DETROIT—A Michigan Court of Appeals panel affirmed a Wayne County Circuit Court ruling that granted a motion for summary disposition in a case stemming from a November 2013 car accident in Detroit.
In Castro v. Duesette, Judges Jonathan Tukel and Michael F. Gadola ruled the plaintiff failed to establish cause in fact as well as finding no genuine issue of material fact that plaintiff had not suffered a serious impairment of body function.
Judge Douglas B. Shapiro wrote an eight-page dissent.
On Nov. 24, 2013, defendant Todd Duesette struck plaintiff Margio Castro while both parties were driving in Detroit.
Castro claims that he sustained injuries to his neck and shoulders because of the accident.
After the collision, both parties drove to the police station to report the collision. The police report indicated that the plaintiff didn’t report any injury.
The COA provided additional history of several work and auto-related accidents sustained by the plaintiff. In 1998, he was in a car accident after which he claimed to have chest and spinal injuries.
Plaintiff was in a car accident in 2003 and he claimed injuries to many body parts.
In 2004, an MRI of his left shoulder indicated possible tendonitis.
In August 2012, he reported a workplace construction injury, and in December 2012, at a new construction job, he reported an arm injury from twisting while moving a concrete object.
After the November 2013 car accident, plaintiff reported to a doctor that he began having neck and shoulder pain, but the doctor concluded there was no objective evidence of any injury from the collision.
The majority wrote that two days after the accident, plaintiff returned to a labor-intensive job 40-50 hours per week and continued that schedule until shortly before Christmas.
He worked throughout the following April before reporting he pulled his neck and shoulder and needed transportation to a hospital.
He resumed work with a lifting restriction immediately and on May 20 did not require any lifting restriction. Plaintiff testified he was fired in July 2014 because he was unable to perform the work.
Outside of work, the COA wrote that the plaintiff continued his hobbies of participating in dance contests and playing bongo drums.
In March 2016, he participated in the Michigan Dance Challenge with his wife.
In April 2017, the plaintiff appeared for a deposition with his left arm in a sling and testified he hadn’t played the drums since the November 2013 accident. However, the panel wrote that in June 2016, he was a headliner a dance event. He also performed percussion in a January 2017 performance in Las Vegas.
In November 2016, the plaintiff filed a complaint to initiate this case. He argued that as a result of the defendant’s negligence, he sustained severe and permanent injuries.
The defendants filed a motion for summary disposition by arguing the plaintiff didn’t establish that his injuries were caused by the accident and that he had suffered serious impairment of body function.
The trial court granted the defendants’ motion.
The COA’s analysis opened with a review of three medical teams’ opinions on the plaintiff’s shoulder condition.
The court reiterated the report of Dr. Mark Kwartowitz, who saw no evidence of distinct pathology in the plaintiff’s shoulder in MRI readings before and after the November 2013 crash.
Treatment records from Active Body Physical Therapy were also mentioned in the opinion. The court determined that although the plaintiff argued the treatment plans indicated his neck and shoulder injuries were a direct result of the accident, the reports were only evaluations by the Active Body staff and didn’t represent a medical opinion of causation.
The plaintiff also submitted a report from Dr. S.W. Bartol, who examined the plaintiff on behalf of Allstate Insurance on Feb. 18, 2014.
The COA wrote in the unpublished opinion that Bartol reported a causal relationship between the accident and the injuries, but there was no previous medical condition that was exacerbated by the accident.
The panel wrote that Bartol’s report demonstrated that the doctor’s opinion was made without comparing medical evidence from before the accident, and he simply took the plaintiff’s word that he had no preexisting conditions or symptoms.
Due to those reports, the court concluded that the trial court correctly determined the plaintiff failed to establish cause in fact.
Regarding the claim of serious impairment of body function, the COA agreed with the trial court that there was no genuine issue of material fact that plaintiff had not suffered a serious impairment of body function.
Shapiro opened his dissent by stating that the majority’s opinion was inconsistent with the record and made all of its inferences in the moving party’s favor.
Shapiro noted the record contained pre-accident imaging studies that do not show the plaintiff’s injuries while post-accident imaging studies do, along with an examining physician’s conclusion that the accident was a cause of his injuries.
Regarding Bartol’s report, Shapiro wrote that the majority side-stepped his report that concluded as of September 2016 that the plaintiff was not able to perform his typical work duties and he would not improve without surgery.
“To suggest that there is not a question of fact requires that we ignore virtually all the medical evidence in the case,” Shapiro wrote.
On the plaintiff’s work history after the accident, Shapiro noted that he returned for five out of six weeks before deciding he could not continue before being assigned to lighter work in April 2014.
Regarding his hobbies, Shapiro wrote that the plaintiff was described as a “crazy bongo player,” but a Jan. 24, 2017, video of his performance shows that he never raised his arms and he played relatively slowly.
“For these reasons, plaintiff has demonstrated at least a question of fact that the tears to his left rotator cuff and left shoulder labrum have affected his general ability to lead his normal life,” Shapiro wrote. “The majority opinion is wrong on the facts and on the law.”
Defense counsel Christina Horn of Moffett Vitu Lascoe Packus and Sims in Birmingham said her strategy for the appeal was to remain focused on whether there was a genuine issue of material fact.
“This was a very factually dense case. It was really important for us to get the imaging to an expert and let them look at the images, not just the reports and subjective terminology used by different radiologists,” Horn said.
Horn said the case emboldened her philosophy to keep the conversation focused.
“The plaintiff can present evidence that seems to look one way, but if you look at it, is there an actual issue of material fact? There was really nothing the plaintiff could offer to contradict the evidence,” Horn said.
Plaintiff’s counsel Dondi Vesprini of Buckfire Law Firm in Southfield said he believes the dissent reviewed a wider amount of evidence than the majority did.
“The dissent does a good job of pointing out that the rest of the evidence wasn’t considered by the majority,” Vesprini said. “There was enough evidence on both sides of the coin to show a question of fact that should’ve been left to the jury to decide the causation and serious impairment issue.”
Vesprini said his side relied heavily on Bartol’s opinion that the injuries were related to the accident.
“We also relied on some of the opinions of his therapist who in their records said it was related, along with the fact that the pre-accident and post-accident films showed different injuries,” Vesprini said.
Vesprini said he felt the trial court focused too narrowly on the plaintiff’s lifestyle habits following the crash.
“The trial court seemed more concerned with this bongo video filmed in January 2017. That seemed to be one of the biggest things they were looking at and didn’t really look at anything else,” Vesprini said. “We didn’t feel it was appropriate and it didn’t seem like the court had taken into consideration all of the evidence that was out there on the serious impairment issue.”
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