Important lesson for Michigan lawyers in Wiedyk v. Poisson – Show, don’t tell, to survive serious impairment motions
Show, don’t tell!
That’s the crucial lesson I’m taking away from Wiedyk v. Poisson, et al., when the Michigan Supreme Court justices unanimously rejected an auto accident victim’s injury and pain and suffering claim.
The fatal mistake: The claim was based on his own, self-executed affidavit.
Specifically, Michigan lawyers should take away that “conclusory allegations” in an auto accident serious impairment affidavit (and, presumably, anywhere else in a third-party tort lawsuit) will not sustain such claims.
Implicitly, the justices were alerting victims and their lawyers to steer away from self-serving statements and focus on medical documentation and/or other evidentiary support to prove their claims for pain and suffering (i.e., “serious impairment of body function” or “noneconomic loss”).
This point was driven home, albeit as a form of foreshadowing, by the Michigan Court of Appeals when, in its opinion, the court pointed out the shortcomings of the victim’s affidavit.
The auto accident victim avowed in his affidavit that he was no longer able to engage in certain activities “as a result of [his] accident related injuries.”
That’s the critical and essential first step under Michigan’s car accident injury threshold law. Auto accident victims – and their lawyers in court – must show impairment. We must show how a victim’s life is different now than it was before a car accident. Failure to show this, no matter how serious the underlying personal injuries suffered in the wreck, is usually fatal.
Although Mr. Wiedyk met the first step, he did not address, or provide documentary support in the form of affidavits or deposition testimony from his treating doctors, on the following crucial issues:
- The victim did not specifically state he was able to engage in the identified activities before the crash in question.
- The victim did “not directly state how [his] ability to lead his life has been affected” by his inability to perform the identified activities.
- The victim failed to explain how his statements in the affidavit could be reconciled with – or otherwise not refuted by – his prior, seemingly contradictory statements.
Michigan Supreme Court on Wiedyk
In Wiedyk, the auto accident victim attempted to prove he had suffered a “serious impairment of body function” by submitting to the court an affidavit which stated the following:
“[A]s a result of my accident related injuries sustained on 7/26/2005 [date of the auto crash in question] I am unable to do the following activities” … [followed by the list of activities].
To the seven Supreme Court justices’, that representation was inadequate to reverse the lower court’s dismissal order and send the case to a jury – as they made clear in their October 22, 2014 order:
“When considered in light of the record developed in this case, the affidavit’s conclusory allegations regarding the extent of the plaintiff’s injuries and impairments … were insufficient to create a genuine issue of material fact as to whether the plaintiff’s ability to lead his pre-accident lifestyle was impacted by the 2005 accident.”
Michigan Court of Appeals on Wiedyk
Significantly, the Michigan Court of Appeals April 24, 2014 opinion, seemed to foreshadow the Supreme Court’s conclusion. When I read this, I remember thinking the appellate panel was teeing up the case for the justices on the Court, telling them exactly how to dismiss this case.
In discussing the Wiedyk victim’s affidavit, the Court of Appeals made the following telling observations:
- The victim did not specifically state he was able to engage in the identified activities before the crash in question. (“By necessary implication, his affidavit states that he was able to engage in those activities prior to the 2005 accident.”)
- The victim “does not directly state how [his] ability to lead his life has been affected” by his inability to perform the identified activities. (“The list of activities is sufficiently lengthy that, although it does not directly state how plaintiff’s ability to lead his life has been affected, it is impossible not to infer a significant degradation thereof.”)
- The victim failed to explain how his statements in the affidavit could be reconciled with – or otherwise not refuted by – his prior, seemingly contradictory statements. (“While it does clearly conflict with other evidence, including the Social Security claim mentioned by this Court in its prior opinion, if taken by itself and believed, the Wiedyk Affidavit clearly shows that plaintiff’s ability to do much of anything important to his life has been negatively affected.”)
Pain and suffering & ‘serious impairment of body function’
Under Michigan’s No Fault law, a Michigan auto accident victim can sue for pain and suffering compensation (i.e., “noneconomic loss”) if she has a suffered a “serious impairment of body function,” which “means an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.” (MCL 500.3135(1) and (5))
In its 2010 landmark decision in McCormick v. Carrier, et al., the Michigan Supreme Court ruled that an objectively manifested impairment of an important body function has affected a person’s general ability lead his or her normal life if – based on a comparison of her pre- and post-collision lives – it has had:
“[A]n influence on some of the person’s capacity to live in his or her normal [“pre-incident”] manner of living.”
I’ve written extensively, and spoken at several legal seminars for Michigan lawyers and judges on how to meet and survive challenges under serious impairment of body function. Here’s a helpful list of ideas that are as important today as they were under the Kreiner era to survive injury threshold motions.