Gallagher v. Parshall, Docket No. 78-5418

• Decision Date: 21 May 1980
• Docket Number: Docket No. 78-5418
• Citation: 296 N.W.2d 132,97 Mich.App. 654
• Parties: Fred GALLAGHER and Ruth Gallagher, Plaintiffs-Appellants, v. Steven PARSHALL and Mary Baxter, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 132

296 N.W.2d 132

97 Mich.App. 654

Fred GALLAGHER and Ruth Gallagher, Plaintiffs-Appellants, v. Steven PARSHALL and Mary Baxter, Defendants-Appellees.

Docket No. 78-5418.

Court of Appeals of Michigan.

May 21, 1980.

Released for Publication Sept. 24, 1980.

Loren E. Gray, Mount Pleasant, for plaintiffs-appellants.

John J. Moskal, Alma, for defendants-appellees.

Before CYNAR, P. J., and V. J. BRENNAN and CAVANAGH, JJ.

PER CURIAM.

In the court below, the trial judge directed a verdict in favor of defendants and against plaintiff wife on her claim for loss of consortium, and directed a second verdict in favor of defendants and against plaintiff husband on the issue of causation as between defendants' negligence and plaintiff's husband's hydrocephalic condition. The jury then returned a verdict of no cause of action on plaintiff-husband's claim of serious impairment of bodily function under the no-fault act. Judgment was entered on the verdicts, from which plaintiffs take this appeal as of right.

Plaintiffs initially contend that the trial court committed reversible error in refusing to admit opinion testimony of two treating physicians regarding the seriousness of the impairment of plaintiff husband's bodily functions. We disagree.

We acknowledge that testimony in the form of an opinion is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. MRE 704. However, the testimony must be "otherwise admissible" under MRE 702 to be allowed into evidence. Ford v. Clark Equipment Co., 87 Mich.App. 270, 280, 274 N.W.2d 33 (1978).

Before admitting expert opinion evidence, three factors must be established to the trial court's satisfaction. First, the witness must be qualified as an expert in his field. Second, there must be facts which require an expert's interpretation or analysis. Third, the witness's knowledge must be peculiar to experts rather than to lay persons. Dep't of Natural Resources v. Frostman, 84 Mich.App. 503, 505, 269 N.W.2d 655 (1978). Such a witness is entitled to express an opinion, or conclusion, where that opinion is dependent on professional or scientific knowledge or skill. Id. Where all the relevant facts can be introduced in evidence and the jury is competent to draw a reasonable inference therefrom, opinion evidence will not be received. Dudek v. Popp, 373 Mich. 300, 306, 129 N.W.2d 393 (1964).

We conclude that the trial court properly excluded the testimony of Dr. Graham. His own testimony establishes that he was not qualified to give an expert opinion in the area of hydrocephalic conditions. Therefore, his opinion was not "otherwise admissible" under MRE 702. With regard to any opinion testimony by him relative to plaintiff's neck and chest injuries, we likewise conclude that it would not be "otherwise admissible" under MRE 702, because the jury was fully capable, on the record before them, to determine the question of serious impairment vel non with respect to these injuries.

As to the trial court's exclusion of the opinion testimony of Dr. Devlin regarding whether plaintiff's stiff neck constituted serious impairment, we are fully in accord therewith. Given the detailed testimony regarding the diagnosis of the injuries and the doctor's explication of the medical terms utilized in such diagnosis, we again conclude that the jurors were capable of reaching their own conclusion thereon unaided by any expert's opinion on the matter.

Plaintiffs next argue that the trial court reversibly erred in directing a verdict in favor of defendant on plaintiff wife's claim for loss of consortium. We reject this contention.

In order to assert a claim in tort under the common law for injuries arising out of the ownership, maintenance or use of a motor vehicle, the injured plaintiff (or his representative) must first establish serious impairment of bodily function, permanent serious disfigurement, or death. M.C.L. § 500.3135(1); M.S.A. § 24.13135(1). Warner v. Brigham, 90 Mich.App. 640, 643, 282 N.W.2d 428 (1979). Absent such a preliminary showing, any claim for loss of consortium under the statute will not lie. Id. Therefore, even assuming the direction of a verdict on the claim for loss of consortium was error, such error does not necessitate reversal, given the jury's finding of no cause of action on the necessary underlying claim of serious impairment of bodily function. GCR 1963, 529.1.

Furthermore, we find plaintiffs' complaint regarding the failure of the court below to give an...