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Smith v. Benjamin10/4/2005
UNPUBLISHED
Before: Bandstra, P.J., and Neff and Donofrio, JJ.
Plaintiffs Leddrew Renard Smith, Jr., and Kerry Smith appeal as of right from orders granting defendants' motions for summary disposition. We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
On February 9, 2001, Leddrew Renard Smith, Jr. (Smith) was involved in an automobile accident with defendant Russell Benjamin. Smith complained of neck and right shoulder discomfort and low back pain. Relying upon representations made by Smith and his treating physician, Dr. Peter Yu, defendant State Farm Insurance Company paid Personal Injury Protection (PIP) benefits for approximately three years. However, after an independent medical examination, State Farm discontinued further PIP benefits effective May 30, 2003.
Plaintiffs brought suit seeking compensation from defendants Benjamin and Corbidge Automotive for non-economic damages pursuant to MCL 500.3135, and to compel State Farm to pay PIP benefits. During the course of discovery, a question arose concerning whether Smith's injuries were actually caused by the accident. In January 2002, Dr. Yu indicated that Smith did not have any pre-existing medical problems that may have been aggravated by the automobile accident. During his initial deposition on January 7, 2003, before his PIP benefits were terminated, Smith stated that he "could not recall" whether he had suffered a previous injury to his back or shoulder. However, a medical record revealed that Smith had seen a chiropractor before his 2001 accident.
Smith subsequently disclosed that he had seen Dr. Cheryl Broderick-Lieurance, a chiropractor. She testified that when she first saw Smith on April 1, 1997, he complained of headaches; a tight, stiff and sore neck; and constant tightness in his entire back. He indicated that he had been in a car accident in 1986, had gotten whiplash, and had been sore since the accident. X-rays at that time revealed that Smith had arthritic changes in his C5-C6 spinal region in the neck above the shoulders, and inflammation of his lower back. Dr. Broderick-Lieurance began treating Smith, and he gained some relief. However, Smith returned to Dr. BroderickLieurance's office on May 13, 1999 complaining of shoulder pain, lower back pain, right leg numbness, and soreness of at least a month's duration. An x-ray revealed abnormalities in his L4-L5 spinal region. Smith returned on June 19, 2000, complaining of neck, left shoulder, low back, and left leg difficulties. Dr. Broderick-Lieurance testified that she treated Smith's neck, shoulder and low back complaints more than fifteen times between April 1997 and August 2000.
Dr. Yu's deposition was taken on February 3, 2005. During direct examination, Dr. Yu was asked whether he thought that Smith's back and shoulder pain were a result of the 2001 car accident. He provided equivocal responses, stating that, if there were no other evidence of pain, Smith's symptoms could be considered to be accident-related. In one response, Dr. Yu testified that Smith's back and shoulder pains were caused by the accident. On cross-examination, however, Dr. Yu stated that Smith had consistently told him that he had not had any problems with his neck, back, legs, or shoulder before the accident, and that he had since discovered that Smith had given him an inaccurate medical history. Dr. Yu was then asked the following:
Q: Given what you now know to be the fact, that he had complaints and treatment in these areas for four years before this accident, would it be fair to say that you cannot say with a reasonable degree of medical certainty what the cause of these complaints are?
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