Damages Expert WitnessesThe plaintiff in a recent Michigan case brought an action raising claims under provisions of the Michigan Vehicle Code. Plaintiff sought future wage loss damages stemming from a collision between her vehicle and a commercial trailer operated by Defendants.   

Plaintiff was a 48-year-old Ohio woman. Her vehicle and a commercial trailer operated by Defendants were involved in a mid-intersection collision.  

Plaintiff sustained a trimalleolar fracture to her right ankle as a result of the collision. The fracture required two surgical procedures, including external fixator surgery and open reduction internal fixation surgery.  

Plaintiff worked for a local school  district. As a result of the collision, she was unable to attend the last two weeks of the school year. When the next school year started, Plaintiff returned to work but was restricted by her surgeon to desk duty only.  

The restriction was lifted by Plaintiff’s surgeon a few months later. The surgeon approved two FMLA leave requests for reduced work hours as the school year progressed. Six months after the collision, Plaintiff also saw a psychiatrist who diagnosed her with post-traumatic stress disorder.  

At issue in the case was the extent to which Plaintiff’s ankle fracture and its aftermath would affect her health and future earning capacity.  

Plaintiff was working a reduced work week as a result of approved FMLA leave. Her surgeon testified that the long-term effects of her injury generally included an increased risk for pain, stiffness, and arthritis that could impact her ability to work. Defendants argued there was no evidence that Plaintiff’s work life would be reduced or that she would be unable to perform full-time employment from now until her retirement. 

U.S. District Court Judge Gershwin A. Drain heard Defendants motion to limit Plaintiff to three damages experts. Defendants stated that Plaintiff listed at least eight damages experts, arguing that this was cumulative under Federal Rule of Evidence 403 and beyond the number of experts allowed for the “same issue” under Michigan Statute § 600.2164(2).  

In response, Plaintiff said she listed only six damage experts and claimed that each expert addressed a unique injury element that didn’t fall under the “same issue,” because each expert had a different medical specialty.  

Judge Drain explained in her opinion that Rules 401 and 402 of the Federal Rules of Evidence permit the admission of relevant evidence only. Evidence thats irrelevant is inadmissible.  

Evidence is relevant, the judge opined, if it has any tendency to make the existence of a material fact more or less probable than it would be without the evidence. Rule 403 allows the admission of relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, undue delay, wasting time or needlessly presenting cumulative evidence.  

In addition, Judge Drain explained that Michigan law addresses this balance between relevance and avoiding cumulative evidence by limiting the number of experts a party may use, stating that “[n]o more than three experts shall be allowed to testify on either side as to the same issue in any given case, unless the court trying such case, in its discretion, permits an additional number of witnesses to testify as experts. 

Plaintiff alleged various injuries related to her health and future earning capacity after the vehicle collision. Each of the six experts she listed addressed a different damages issue, including orthopedic, brain, and emotional injuries as well as economic damages. Because Plaintiff didn’t present more than three experts in any one injury category, Judge Drain held that the evidence wasn’t cumulative and shouldn’t be excluded under Rule 403 or Michigan law. 

Defendants also moved in the alternative to be allowed an equal number of damage experts. Defendants specifically requested that Plaintiff submit to an independent medical examination by its physician. However, Judge Drain stated that Defendants had already conducted an orthopedic independent medical examination with another doctor. Plaintiff objected to a second physical examination in the same medical specialty. After her objection, Defendants made no attempt with the Court to require Plaintiff’s submission to a second examination until the present motion. Rule 35 of the Federal Rules of Civil Procedure allows an order for an examination only upon a good cause showing.  

In this case, the judge held that Defendants failed to demonstrate why a second independent medical examination is warranted under Rule 35. Accordingly, the Court denied Defendants motion to limit Plaintiff’s damage experts and denies Defendant’s alternative motion to allow Defendants an equal number of damage experts. 

For the reasons discussed herein, Defendants’ Motion to Limit Plaintiff’s Damage Experts was denied.