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
STEVEN SMITH, JR., UNPUBLISHED
January 7, 2021
Plaintiff,
and
MARK BATIE,
Plaintiff-Appellant,
v No. 347127
Wayne Circuit Court
PULKIT GOENKA and GE AVIATION SYSTEMS, LC No. 16-010893-NI
LLC,
Defendants-Appellees,
and
HERTZ VEHICLES, LLC and HERTZ
CORPORATION,
Defendants.
Before: STEPHENS, P.J., and SAWYER and BECKERING, JJ.
PER CURIAM.
In this negligence action involving a motor vehicle accident, plaintiff Mark Batie appeals
as of right a judgment of no cause of action entered after a jury trial. Plaintiff challenges the trial
court’s postjudgment order denying his motion for a new trial, as well as prior decisions of the
trial court. We affirm.
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This case arises out of a motor vehicle accident that occurred on July 20, 2014. At trial,
plaintiff1 alleged that he suffered injuries to his back and left shoulder as a result of that accident.
Defendants, Pulkit Goenka and GE Aviation Systems, LLC,2 conceded at trial that their negligence
caused the accident. The jury determined that plaintiff was injured, but found that his injuries
were not caused by defendants’ negligence, i.e., the motor vehicle accident. Consequently, the
trial court entered a judgment of no cause of action against plaintiff.
I. GREAT WEIGHT OF THE EVIDENCE
Plaintiff argues that he is entitled to a new trial because the jury’s verdict is inconsistent
and not substantiated by the evidence. We disagree. This Court reviews a trial court’s denial of a
motion for a new trial for an abuse of discretion. Allard v State Farm Ins Co, 271 Mich App 394,
406; 722 NW2d 268 (2006). A court abuses its discretion when it selects an outcome that falls
outside the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich
372, 388; 719 NW2d 809 (2006).
In Allard, 271 Mich App at 406-407, this Court stated:
When a party challenges a jury’s verdict as against the great weight of the
evidence, this Court must give substantial deference to the judgment of the trier of
fact. If there is any competent evidence to support the jury’s verdict, we must defer
our judgment regarding the credibility of the witnesses. The Michigan Supreme
Court has repeatedly held that the jury’s verdict must be upheld, “even if it is
arguably inconsistent, ‘[i]f there is an interpretation of the evidence that provides a
logical explanation for the findings of the jury.” “ ‘Every attempt must be made to
harmonize a jury’s verdicts. Only where verdicts are so logically and legally
inconsistent that they cannot be reconciled will they be set aside.’ ” [Citations
omitted.]
Initially, we reject plaintiff’s cursory argument that the jury’s verdict is logically and
legally inconsistent. At trial, defendants presented evidence that plaintiff had a shoulder injury
that predated the motor vehicle accident. The jury determined that plaintiff had been injured, but
that the injury was not caused by defendants’ negligence, i.e., the motor vehicle accident. There
is nothing inconsistent with these findings. The verdict simply means what it says: that while
plaintiff had an injury, the injury was not related to or caused by the motor vehicle accident.
Plaintiff’s assertion that “there is simply nothing else that [plaintiff’s] injuries could be
attributed to” ignores defendants’ proofs at trial. Defendants at trial repeatedly emphasized that
plaintiff had suffered from back and shoulder injuries, but that those injuries predated the July
1
Plaintiff Steven Smith, Jr., is not part of the instant appeal. We use the term “plaintiff” to refer
only to plaintiff Batie.
2
The initial suit also named Hertz Vehicles, LLC, and The Hertz Corporation as defendants, but
the parties stipulated to dismiss the Hertz defendants. Accordingly, any reference to “defendants”
in this opinion refers to Goenka and GE Aviation Systems.
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2014 accident. Indeed, defendants relied on medical charts from plaintiff’s visits to Health One in
May and June of 2014, just weeks before the accident, which showed that plaintiff had informed
the treating physicians that he had fallen off a roof in 2010 and had been having back and shoulder
pain ever since. The pain was so severe at those visits that plaintiff was prescribed narcotic pain
medication at the May visit and a higher dosage at the June visit. Further, defendants’ expert
witnesses testified that plaintiff’s injuries were not related to the motor vehicle accident.
While plaintiff and his doctors testified that his injuries were related to the motor vehicle
accident, this was a factual question for the jury to resolve. See Allard, 271 Mich App at 408 (“It
is the sole province of the jury to determine the weight of the evidence and credibility of the
witnesses.”). Just because the jury resolved this question in favor of defendants does not make the
verdict against the great weight of the evidence. Accordingly, the trial court did not abuse its
discretion when it denied plaintiff’s motion for a new trial.
II. ADMISSIBILITY OF SSA DETERMINATION
Plaintiff next argues that he is entitled to a new trial because the trial court erred by
admitting the Social Security Administration’s (SSA) determination that plaintiff was not disabled.
We review this preserved evidentiary issue for an abuse of discretion. Nahshal v Fremont Ins Co,
324 Mich App 696, 710; 922 NW2d 662 (2018).
Even if we were to assume, arguendo, that the trial court erred by allowing this evidence,
the error would not warrant reversal because it is not more probable than not that the error affected
the outcome of the trial. Id. at 717. Whether plaintiff was considered “disabled” had no bearing
on the jury’s determination of what caused his (disabling or nondisabling) injuries. As previously
discussed, the jury rejected plaintiff’s negligence claim because it determined that his injuries were
not related to the motor vehicle accident. Thus, any evidence regarding plaintiff not being disabled
simply could not have been a factor in the jury’s verdict. Plaintiff argues that the SSA’s
determination that plaintiff was not disabled might have influenced the jury’s decision with regard
to whether he suffered a serious impairment of body function, which is a necessary prerequisite to
obtain noneconomic damages under the no-fault act. See MCL 500.3135(1); McCormick v
Carrier, 487 Mich 180, 189-190; 795 NW2d 517 (2010). But again, whether plaintiff suffered a
serious impairment of body function is a separate issue than whether his injuries were caused by
the accident. In other words, whether plaintiff had suffered a serious impairment of body function
or was disabled goes to the severity of the injury, not its causation. Indeed, because the jury found
no causation, it never had to consider the extent of plaintiff’s injuries. Consequently, plaintiff
cannot prevail on this issue.
III. SUBPOENA OF EXPERT’S IRS 1099 FORMS
Plaintiff argues that the trial court erroneously denied his motion to compel Exam Works
to produce IRS 1099 forms for Dr. Miles Singer and erroneously granted defendants’ motion to
quash. We disagree. This Court reviews a trial court’s decision to grant or deny discovery for an
abuse of discretion. Shinkle v Shinkle (On Rehearing), 255 Mich App 221, 224; 663 NW2d 481
(2003). Additionally, the interpretation and application of the court rules is a question of law that
this Court reviews de novo. Colista v Thomas, 241 Mich App 529, 535; 616 NW2d 249 (2000).
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On September 4, 2018, less than four weeks before trial, plaintiff issued a subpoena for
Exam Works to produce 1099s, W-2s, or S-Corporation distributions for the prior five years issued
to defense expert, Dr. Singer.3 Defendants filed an emergency motion to quash the subpoena.
Defendants argued, in part, that the sought-after information was not discoverable under MCR
2.302(B)(4). Plaintiff filed a motion to compel Exam Works to comply with the subpoena.
Plaintiff argued that he anticipated that defendants’ experts, including Dr. Singer, would claim
ignorance regarding how much money they earned each year from Exam Works. At the motion
hearing, the trial court granted defendants’ motion to quash and denied plaintiff’s motion to
compel. However, the court specifically noted that it would revisit the issue if it was brought to
its attention that any deponent was being evasive.
Thereafter, at his deposition, Dr. Singer testified that approximately 30% of his business is
from conducting independent medical examinations (IMEs). During cross-examination by
plaintiff, Dr. Singer did not know how much he makes in a given year from Exam Works, but he
stated that he does “maybe” 100 to 200 exams per year for Exam Works. Dr. Singer also testified
that he earned approximately $6,000 for his work in the present case. When plaintiff’s counsel
tried to get Dr. Singer to agree that, on average, he earned $6,000 for each other IME he conducted,
Dr. Singer said that was “[n]ot even close.” Notably, plaintiff’s counsel never tried to ascertain
from Dr. Singer what was wrong or incorrect with his hypothesis. Instead, counsel simply asked
Dr. Singer how much he made in a year doing these IMEs, but Dr. Singer did not know the dollar
amount.
Although the trial court told the parties that it would revisit the issue of the subpoena if any
expert was being evasive, plaintiff never raised the issue with the court again. The issue before us
is whether the trial court abused its discretion when it rendered its initial decision to quash the
subpoena. Plaintiff does not suggest that the trial court should have sua sponte done anything after
it quashed the subpoena.
MCR 2.302(B) is the court rule that governs the scope of discovery and, at the time
provided, in pertinent part:
(1) In General. Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in the pending action,
whether it relates to the claim or defense of the party seeking discovery or to the
claim or defense of another party, including the existence, description, nature,
custody, condition, and location of books, documents, or other tangible things, or
electronically stored information and the identify and location of persons having
knowledge of a discoverable matter. It is not ground for objection that the
information sought will be inadmissible at trial if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.
* * *
3
The subpoena also requested this information for other defense experts, but on appeal, plaintiff
only relies on the request for Dr. Singer’s information.
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(4) Trial Preparation; Experts. Discovery of facts known and opinions held
by experts, otherwise discoverable under the provisions of subrule (B)(1) and
acquired or developed in anticipation of litigation or for trial, may be obtained only
as follows:
(a)(i) A party may though interrogatories require another party to identify
each person whom the other party expects to call as an expert witness at trial, to
state the subject matter about which the expert is expected to testify, and to state
the substance of the facts and opinions to which the expert is expected to testify and
a summary of the grounds for each opinion.
(ii) A party may take the deposition of a person whom the other party
expects to call as an expert witness at trial. . . .
(iii) On motion, the court may order further discovery by other means,
subject to such restrictions as to scope and such provisions (pursuant to subrule
[B][4][c]) concerning fees and expenses as the court deems appropriate.
In dedicating a separate subrule, MCR 2.302(B)(4), for discovery related to experts, experts
essentially are considered a special class of nonparties. These specific rules take precedence over
the more general rules of discovery. See Slater v Ann Arbor Pub Sch Bd of Ed, 250 Mich App
419, 434-435; 648 NW2d 205 (2002) (stating that specific provisions control over general
provisions). Thus, discovery of expert witnesses generally may only be conducted through
deposition. MCR 2.302(B)(4)(a)(ii). However, MCR 2.302(B)(4)(a)(iii) states that a “court may
order further discovery by other means,” but the rule is permissive. See Walters v Nadell, 481
Mich 377, 383; 751 NW2d 431 (2008) (stating that the word “may” typically denotes permissive
activity). Thus, because the ordering of other forms of discovery is permissive, the trial court was
not required to compel the disclosure of Dr. Singer’s financial documents. The trial court’s order
was eminently reasonable. Instead of a blanket denial of plaintiff’s motion to compel the
production of those financial documents, the trial court stated that it would reconsider its ruling if
any of the experts were “intentionally evasive.” Because the trial court did not foreclose the
possibility of plaintiff being able to obtain the sought-after financial documents, we cannot see
how the trial court abused its discretion. If plaintiff was not satisfied after taking Dr. Singer’s
deposition, he could have accepted the court’s invitation to revisit the issue, but he did not.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ David H. Sawyer
/s/ Jane M. Beckering
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