Amending the scheduling order; Adding a summary disposition motion hearing to a closed motion docket; Prejudice; Serious impairment of body function; MCL 500.3135; McCormick v Carrier

The court concluded that the trial court did not commit any procedural error as “to amending the scheduling order or its motion practice.” It also correctly granted defendant summary disposition based on the lack of a material question of fact whether plaintiff suffered a serious impairment of body function. The parties were involved in a motor-vehicle accident in which plaintiff was injured. She first argued that the trial court erred in amending the scheduling order and as a result, defendant’s summary disposition motion was untimely. The court found that “the trial court did not abuse its discretion by amending the original scheduling order to allow additional time for discovery.” As to the trial court’s consideration of the summary disposition motion on a day with a closed motion docket, the court determined there was “nothing to suggest that plaintiff was prejudiced by the trial court’s decision to entertain the motion on” a day with a closed motion docket. Finally, she claimed that the “trial court erred by concluding that she failed to establish a genuine issue of material fact as to whether she suffered a ‘serious impairment of body function’ for the purposes of MCL 500.3135.” The court found that “the evidence indicates that plaintiff suffers from post-concussion syndrome, as well as continuing pain in the head and back; that she played sports in high school but does not do so in college, apparently as a result of her continuing pain; and that her grade point average in college is lower than it was in high school. Arguably, the fact that [she] played sports in high school but does not do so in college as an apparent consequence of her continuing pain is sufficient to show the second and third elements of the McCormick test, i.e., that she lost (2) an ‘important body function’ that (3) affects her ‘general ability to lead [her] normal life.’” But the court held that “after reviewing the evidence, and setting aside the affidavit of [Dr. G], plaintiff has failed to satisfy the first element of the McCormick test, i.e., that she suffered an ‘objectively manifested impairment.’” Her claim rested solely on G’s affidavit, which indicated “that plaintiff suffers from post-concussion syndrome as a result of the accident. Notwithstanding that there are procedural issues with exclusive reliance on that affidavit, such as the fact that it is not supported by the underlying medical records themselves and the fact that it arguably was not timely filed, . . . the affidavit does not show that plaintiff suffered ‘serious neurological injury.’” Thus, the court found that “because the affidavit does not show [she] suffered a ‘serious neurological injury,’ and instead merely states, in a conclusory manner, that [she] suffers from post-concussion syndrome, it is insufficient to satisfy MCL 500.3135.” In addition, it did “not link that injury with [her] continuing pain, claimed inability to play college sports, or other negative aspects allegedly arising from the accident.” Affirmed.