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Patrick v. Turkelson

Court of Appeals of Michigan

January 16, 2018

LINDSEY PATRICK, and CHRISTIAN PATRICK, Plaintiffs-Appellants,
v.
VIRGINIA B. TURKELSON, AUTO-OWNERS INSURANCE COMPANY, and CITIZENS INSURANCE COMPANY OF THE MIDWEST, Defendants Appellees, and HOME-OWNERS INSURANCE COMPANY, Defendant.

         Kent Circuit Court LC No. 15-006324-NI

          Before: Meter, P.J., and Borrello and Boonstra, JJ.

          BORRELLO, J.

         In this automobile negligence action, plaintiffs, Lindsey Patrick and Christian Patrick, [1]appeal as of right the trial court's order granting defendant Virginia Turkelson's motion for summary disposition pursuant to MCR 2.116(C)(10) and dismissing the action with respect to all defendants.[2] For the reasons set forth in this opinion, we reverse the trial court's order and remand this matter for further proceedings consistent with this opinion.

         I. BACKGROUND

         This case arises out of a car accident that occurred on February 12, 2013. Lindsey was driving on a service road as she was leaving a Spectrum Health parking lot when a vehicle driven by Turkelson turned onto the road and struck the driver's side of Lindsey's vehicle. Multiple airbags deployed inside Lindsey's vehicle, and the side curtain airbag above the driver's side door hit Lindsey on the side of her face, her left ear, and the top of her head. Lindsey referred to the deployment of the airbags as an "explosion." After the accident, Spectrum Security arrived at the scene, and Lindsey reported that the sound in both of her ears was "very muffled" and that her left ear was "ringing."

         Following the accident, Lindsey was examined in the emergency room where she reported experiencing sharp pain in her left ear, ringing in both ears, and a headache. She also reported pain in her left shoulder, lower back, left hip, and left rib cage.

         Lindsey was subsequently referred to an audiologist, Pam Keenan at MacDonald Audiology on February 21, 2013. Keenan noted in her report that Lindsey's primary concern was sudden decrease in hearing and bilateral tinnitus. An audiogram test "revealed hearing to be within normal limits at 250-4000Hz with a slight dip at 6 and 8000Hz." Lindsey's word recognition was "Excellent bilaterally, " and her speech recognition was in accordance with her other testing. The record reflects that Lindsey was administered various hearing tests that measured her ability to hear pure tones and speech. Keenan also noted that there was no previous audiogram to provide a comparison. Further testing at a March 19, 2013 visit to MacDonald Audiology yielded similar results. According to Lindsey, she was told by the audiologist that the airbag explosion caused the ringing in her ears.

         On November 11, 2013, Lindsey visited the University of Michigan Health System and was seen by Dr. Katherine Heidenreich, a specialist in otology and neurotology who treated patients with ear disorders and hearing loss. According to Dr. Heidenreich's deposition testimony, Lindsey reported experiencing symptoms of hearing loss and tinnitus. Dr. Heidenreich explained tinnitus as being a "phantom sound that somebody perceives, " which is "something that is inside your head that you hear, not from the environment." Dr. Heidenreich further explained that people experiencing tinnitus symptoms may describe the sound as ringing, a tone, or the sound of the ocean.

         As part of Lindsey's examination that day, Dr. Heidenreich conducted a physical examination, which typically includes examining the patient's ears, nose, oral cavity, oral pharynx, and the cranial nerve function. The exam was "normal." Lindsey was also given an audiogram to test her hearing, and Dr. Heidenreich reviewed these results during the examination as well. Dr. Heidenreich testified that components of an audiogram required a patient to acknowledge whether or not the patient heard a sound that was presented to the patient, and Dr. Heidenreich acknowledged that this kind of testing relied on the patient "subjectively reporting what they heard." However, she testified that the testing also included "more objective components as well such as the movement of the eardrum and the acoustic reflexes." Based on the results of the audiogram administered to Lindsey that day, Dr. Heidenreich determined that Lindsey had "a mild high frequency sensorineural hearing loss in both ears but with excellent word recognition scores." Dr. Heidenreich testified that sensorineural hearing loss suggests problems with the inner ear or nerve. With respect to tinnitus, Dr. Heidenreich explained that this is a symptom that is often reported by people experiencing hearing loss and that there typically are not objective measures that can verify the existence of this symptom. Dr. Heidenreich also determined that Lindsey had "an acoustic reflex abnormality." The acoustic reflex "measures the contraction of the stapedius muscle, " and abnormalities can be associated with middle ear bone problems or tumors. According to Dr. Heidenreich, an acoustic reflex abnormality might not cause any symptoms, and this particular finding might not have had any bearing on Lindsey's condition.

         Dr. Heidenreich testified that the literature includes reports of hearing loss and tinnitus following airbag deployment due to the sound generated. According to Dr. Heidenreich, it is possible for exposure to loud noises to cause hearing loss and tinnitus, even if an individual does not suffer physical trauma. Dr. Heidenreich opined that Lindsey's hearing issues were related to the car accident based on Lindsey's audiogram results and her history, which included her reports of experiencing an immediate decline in hearing, muffled hearing, and tinnitus right after the car accident in which the airbags deployed. Dr. Heidenreich opined that this history suggested that Lindsey had experienced a negative change in her hearing as compared to her pre-accident hearing capabilities and that Lindsey's exposure to the loud sound from the airbags could have caused her symptoms. However, Dr. Heidenreich acknowledged that there was no audiogram for Lindsey from before the accident for comparison and that hearing can deteriorate due to age. Additionally, Dr. Heidenreich indicated that she did not know the cause of the acoustic reflex abnormality.

         Lindsey testified at her deposition that the pain and muffling in her ears started immediately after the automobile accident and that she did not have any of these symptoms before the automobile accident. At the time of her deposition, she no longer suffered from muffled hearing, but she did still have ringing or tingling in both of her ears. Lindsey indicated that her hearing loss was in her left ear. Lindsey testified that she generally did not have trouble hearing people speaking during normal conversation unless there was a lot of background noise, but she had trouble hearing whispering. Lindsey was told by both the audiologist and Dr. Heidenreich that the sound from the explosion of the airbag deploying near her ear caused her hearing problems.

         According to Lindsey, her ear issues had a negative impact on her work because she was required to spend a significant amount of time in the car for work and the road noise made the ringing in her ears worse. She also testified that the ringing affected her ability to do her job because it was "distracting" and made her "very irritable." Places with large groups of people or loud sounds also made the ringing worse. Before the accident, Lindsey worked approximately 30 hours a week over the course of three days each week. At the time of her deposition, Lindsey was working one day a week for approximately eight hours because it was "harder to do the driving" and because she had small children.

         Lindsey also testified during her deposition that before the accident, she had enjoyed outdoor activities such as kayaking, hiking, and bike riding. She also had a busy social life, enjoyed going to concerts, and liked to travel. Since the accident, Lindsey had been to two concerts, and they made the ringing in her ears worse. Lindsey also had not continued hiking or kayaking since the accident because she had tried these activities multiple times and found that it was "too quiet in the woods, " which made the ringing more noticeable. Lindsey further testified that her ear problems had affected her ability to take care of her children because she was less patient, more irritable, and more anxious.

         Lindsey's husband, Christian, testified at his deposition that he and Lindsey had experienced difficulties communicating since the accident because Lindsey would speak either too softly or too loudly. Lindsey would also occasionally tell Christian that she was having trouble hearing him. According to Christian, he sometimes had to ask Lindsey to repeat herself because he had a hard time understanding or hearing her, and she would get frustrated during these interactions because she was having a hard time knowing how loud she was talking. Christian further testified that there were times when Lindsey did not hear questions that their children asked her or misheard a question and responded with an answer that was unresponsive to the actual question. Christian also indicated that Lindsey was "more irritable" than before the car accident. Christian testified that Lindsey had indicated that she could not go on road trips or go to concerts with him because of her hearing issues. He also had to keep music at a quieter volume inside the house. Lindsey could watch television without a problem but going to movies gave her trouble.

         Lindsey filed this action on July 10, 2015. Lindsey specified in her deposition that her claim of injury resulting from the automobile accident involved her hearing loss and ringing in her ears. Defendant Turkelson moved for summary disposition under MCR 2.116(C)(10), arguing that Lindsey did not suffer a serious impairment of body function and that any injury was not caused by the car accident. Defendants Auto-Owners Insurance Company and Home-Owners Insurance Company concurred in Turkelson's motion.

         The trial court granted Turkelson's motion for summary disposition and dismissed the action in its entirety with respect to all defendants, ruling that there was no genuine issue of material fact regarding whether Lindsey suffered a serious impairment of body function. Specifically, the trial court concluded that Lindsey had "not shown any objective manifestation of her subjective complaints of tinnitus or otherwise demonstrated any physical basis for those complaints, " that her hearing loss was "mild" and was "not a manifestation of or physical basis for tinnitus, " and that there was "no indication that plaintiff's general ability to live her normal life is affected by that mild hearing loss." As a result of its determination on the threshold injury issue, the trial court specifically declined to make a ruling regarding Turkelson's causation argument. The trial court also stated that it would not address plaintiffs' counter-motion for summary disposition regarding the issue of fault "because summary disposition is proper regardless of fault for the underlying accident."

         On appeal, plaintiffs argue that the trial court erred by concluding that her impairment was not objectively manifested and granting summary disposition on the ground that a serious impairment of body function had not been established.

         II. STANDARD OF REVIEW

         "This Court reviews de novo a trial court's decision on a summary disposition motion to determine if the moving party was entitled to judgment as a matter of law." Bergman v Cotanche, 319 Mich.App. 10, 15; 899 N.W.2d 754 (2017). "In making this determination, the Court reviews the entire record to determine whether defendant was entitled to summary disposition." Maiden v Rozwood, 461 Mich. 109, 118; 597 N.W.2d 817 (1999). "Courts are liberal in finding a factual dispute sufficient to withstand summary disposition." Innovative Adult Foster Care, Inc v Ragin, 285 Mich.App. 466, 476; 776 N.W.2d 398 (2009).

         "A motion for summary disposition brought pursuant to MCR 2.116(C)(10) tests the factual support for a claim." Id. at 474-475. "Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." West v Gen Motors Corp, 469 Mich. 177, 183; 665 N.W.2d 468 (2003). A motion pursuant to MCR 2.116(C)(10) is reviewed "by considering the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party." Latham v Barton Malow Co, 480 Mich. 105, 111; 746 N.W.2d 868 (2008). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West, 469 Mich. at 183. "[I]t is well settled that the circuit court may not weigh the evidence or make determinations of credibility when deciding a motion for summary disposition." Innovative Adult Foster Care, 285 Mich.App. at 480. Moreover, a court may not ...


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