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### STATE OF MICHIGAN

COURT OF APPEALS

PATRICIA C. GRAVEL-HENKEL, MARK B. HENKEL, and IAN F. HENKEL,

Plaintiffs-Appellants, UNPUBLISHED April 12, 2016

v No. 325435
Washtenaw Circuit Court
AAA MICHIGAN and US HEALTH & LIFE INSURANCE COMPANY, LC No. 11-000973-NI

Defendants,

and

DAVID BURRITT MOODY,

Defendant-Appellee.

Before: B OONSTRA , P.J., and W ILDER and M ETER , JJ.

P ER C URIAM

.

Plaintiffs appeal as of right t he trial court’s judgment enter ed following a jury verdict of no cause of action in favor of defendant David Burritt Moody 1 regarding plaintiffs’ action for alleged negligence by defendant resulting in a car accident. S pecifically, plaintiffs argue that the trial court erred by denying their postjudgment motions for jud gment notwithstanding the verdict (JNOV), a new trial, or additur. We affirm.

I. FACTS AND PROCEDURE

After growing up in Michigan, plaintiff 2 moved to Boston to attend Harvard University, where she obtained her bachelor’s degree. In 1989, while still living in Boston, plaintiff underwent spinal fusion surgery for lumbar scoliosis. She unde rwent physical therapy after the

1 Because Moody’s codefendants are not parties to the instant ap peal, we refer to Moody simply
as “defendant.”

2 We refer to Patricia as “plaintiff” infra unless otherwise specified.-2- surgery and testified that she no longer experienced any back p ain. The surgery “resolved the issue pretty much as far as [she] was concerned,” and she “didn ’t have any back issues” between her recovery from the 1989 surger y and the car accident out of which this case arises.

After living and working in Boston for many years, plaintiff r eturned to Michigan and obtained her law degree from Michigan State University. She wo rked in several legal positions, then opened her own practice, whi ch, according to plaintiff, wa s a “broad-based litigation practice” consisting of family l aw, contracts, small corporatio ns, and employment disputes. She was “very selective of [her] clients, and . . . did turn people away,” working an average of 50 hours per week.

In August 2009, plaintiff and defendant were involved in the c ar accident that is at issue in this matter. It is undisputed that defendant was at fault; indeed, he expressly acknowledged his fault at the jury trial i n this matter, stating, “I caused this accident.”

Plaintiff eventually filed suit against defendant, alleging th at she was entitled to excess economic damages under § 3135 of the no-fault act, and that, un der that same section, she suffered serious impairment of body function and was, therefore , entitled to noneconomic damages. Plaintiff’s husband, Mark Henkel, and her son, Ian He nkel, brought derivative claims
for loss of consortium.

A five-day jury trial ensued. Plaintiff testified that, befor e the accident, she was physically active. She enjoyed walking, running on a treadmill , biking, and inline skating. She stated that she was active in sports, including ice skating and canoeing. Her testimony in that regard was corroborated by severa l of plaintiff’s relatives. B oth plaintiff and her husband further testified that plai ntiff had no “back issu es” between her 1989 surgery and the subject accident.

But following the accident, plaintiff was diagnosed with a con cussion, neck pain, and back pain. Three days afterward, she saw her primary care phys ician, Dr. Zazove, complaining of pain in her neck and “lower left back,” and “radiating pain that was wrapping around [her] hip and” traveling down her leg. Although the neck pain subsided w ithin a month of the accident, the back pain persisted. Plaintiff testified that her post-acc ident back pain differed from any back pain she had previously suffered. She underwent physical therapy in hopes of remedying the pain, but the therapy only exacerbated her pain. She also pursued alternative, nonsurgical options, including acupuncture a nd massage, but she received mi nimal relief.

According to plaintiff, in the months following the accident, she tried to continue her work as an attorney, but her pain was excruciating; it took her five times longer to accomplish
tasks and she could not sit at her desk or otherwise work comfo rtably. Potential clients approached plaintiff, but she cou ld not take their cases due to her back pain. Specifically, plaintiff testified that she had lost confidence, her mental ac uity, and her ability to concentrate. Moreover, she was unable to drive to court and sit or stand for any extended period of time. She did some legal work at home but earned only about $300.

Due to her continuing pain, plaintiff was eventually referred to Dr. Louis Bojrab, an interventional pain specialist. At her initial consultation, p laintiff informed Bojrab about her 1989 scoliosis surgery, and his no tes contain the following sta tement: “There were no other-3- problems with her back, and she had been pain-free since [the 1 989 surgery], until the accident[.]” Bojrab testified that he treated plaintiff from N ovember 23, 2010—approximately 15 months after the accident—until the time of trial. During s uch time, on a scale of zero to 10, with 10 being the highest level, plaintiff’s pain level has gen erally “always” been 6 out of 10. Bojrab ordered an MRI and CT scan, which revealed a spinal cond ition known as “lateral spondylolisthesis.” Bojrab classified the condition as a “fair ly rare disorder,” describing it as
follows:

So, if you think about a spine, and [the] vertebrae are like li ttle rings, doughnuts stacked on top of each other, and they have points where they r est on each other. And a lateral spondylolisthesis is, literally, one ring sliding on the other laterally. The top one moved forward on the bottom one, towards her left. And it wasn’t a little bit. If you think about the injury, it’s two pipes that you separate, you get compression of the internal part s. You only have, at most, thr ee centimeters of space in the diameter of the spinal canal, and when one bone sl ides on the other one—if it goes all the way, it’s a complete transection and it’ s a complete paralysis. Even bowel and bladder function are lost.

In [plaintiff’s] case, she had 15 millimeters, so it’s 50 perc ent of the spinal canal where the top bone slid over the bottom bone.

Bojrab opined that trauma, e.g., an automobile accident, could cause lateral spondylolisthesis, and was a more likely cause tha n was degenerativ e “wear and tea r”:

Trauma can cause it. It’s fairly normal for a trauma case to b e the inciting incident for a spondylolisthesis. It’s really unusual for a sp ondylolisthesis that’s lateral to occur degeneratively. Degenerative is just fancy wo rds [sic] for wear and tear, right. So, if it’s somebody’s arthritis or wear and tear, usually, they’ll slip forward or backward. It is really unusual to see sideways

.

Finally, Bojrab stated that, had plaintiff been suffering from lateral spondylolisthesis before the accident, it was “very likely” that she would have experienced back pain.

Roughly a year after her initial consultation with Bojrab, pla intiff had a surgical
consultation with Dr. Nilesh Kotecha. Kotecha’s examination re vealed that plaintiff had diminished reflexes in her lower extremities, suggesting that s he had nerves that were “malfunction[ing] from being pinc hed or from being injured[.]” Kotecha recommended surgical fusion of a portion of plaintiff’s spine. Upon learning that s he needed surgery, plaintiff began “closing out” her client account s and winding up her law practi ce. Kotecha performed the surgery on December 16, 2011. Plaintiff was required to remain in the hospital for several days and to wear back braces for a pe riod of several months. Kotech a testified that, despite the successful surgery, plaintiff “will always have some degree of pain pretty much for the rest of her life[.]” Although Kotecha would, for at least two years af ter the surgery, restrict plaintiff from lifting “more than like 2 to 4 pounds,” he acknowledged th at his restrictions did not limit plaintiff from standing or walki ng, nor restrict her from any t ype of employment. Likewise, Kotecha admitted that he could not definitively attribute plaintiff’s spinal issues to the subject accident, further admitting that his medical opinions were base d on the medical history provided-4- by plaintiff herself, which inc luded no report of back problems prior to the subject accident. Similarly, Bojrab confirmed that plaintiff never told him aboutany medical treatment she received for back pain or in juries between 1989 and the subject automobile accident.

Contrary to plaintiff’s self-re ported medical history, however , defense counsel introduced evidence indicating that, between 1989 and the subject automobi le accident, plaintiff had complained of back pain, or been treated for it, numerous times . Specifically, between November 2004 and November 2008, not ations in plaintiff’s medic al records indicated that she had been seen by doctors for back pain, or received testing for such pain, on at least eight occasions. During such doctor visits—which occurred before the subject accident—plaintiff complained of muscle spasms, fatigue, problems concentrating, t rouble at work with prolonged periods of sitting or standing, a nd pain that both prevented “h er from doing much” and forced her to take medication, including Valium, Flexeril (a prescript ion muscle relaxant), and ibuprofen.

In attempting to establish her claim for excess wage loss, pla intiff primarily relied on tax returns for her law practice fo r the years 2008 through 2011, w hich provided a net loss of $11,376 in 2008, a net pr ofit of $2,107 in 2009, a net profit o f $302,977 in 2010, 3 and a net profit of $1,704 in 2011. Notably, such tax returns were filed after plaintiff had already been deposed in this matter. Plaintiff denied any relationship between the late filings and this case. She attempted to use the tax returns to establish a yearly average future income, i.e., wage loss, of approximately $100,000. But she acknowledged that in an unrela ted parenting time dispute in 2007, she represented to a court that she was indigent and unab le to pay approximately $4,000 in

court costs.

Plaintiff nevertheless maintained that her law practice was su ccessful and that she charged $275 per billable hour b efore the accident. She testif ied that the majority of her billing was hourly, but sometimes deferred hourly. Plaintiff claimed t hat the losses reflected in her tax returns were due to some fee structures, i.e., contingent or de ferred hourly, and the fact that she obtained judgments that were unpaid or not paid in full. She s tated that she loved working as an attorney and would have continued such employment indefinitely had she not been injured in the subject accident.

Plaintiff introduced the testimon y of Robert Ancell—a vocation al rehabilitation counselor and case manager—who prepared a report that was admitted into evidence. Ancell’s report concluded that, “[a]t the present time, given the nature and extent of [plaintiff]’s limitations, she is unemployable” and that, “[g]iven her ten ye ars of experience and track record according to her history, the median salary at [sic] $92,000 is a reasonable estimate of her earning ability[.]” According to Ancell, given plaintiff’s age (she was 56 years old at the time of trial), and her difficulties with pain and concentration, he di d not believe there were jobs of a
“lesser demand” that she could perform. Ancell opined that, al though whether plaintiff could

3 Plaintiff’s net profit in 2010, of over $300,000, was attribut able to the settlement of a complex litigation matter for which she received a large contingent fee . There is no record evidence that plaintiff was otherwise involve d in such lucrative or complicat ed cases.-5- ever return to work was a medical question, he had “seen nothin g” to suggest that plaintiff would not remain unemployable until retirement age. On cross-examina tion, Ancell testified that disability determinations and work restrictions must be imposed by medical professionals. He acknowledged that there was nothing in the medical records to i ndicate that plaintiff was disabled from working or under work restrictions, that he did n ot speak with any of plaintiff’s doctors, and that the earliest medical record he was given post dated the subject automobile accident. Ancell further admitted that plaintiff told him that , following her recovery from her 1989 back surgery, she had “no [back] issues” until the subject accident. Finally, Ancell concurred with defense counsel’s statement that one large fee r eceived by an attorney does not necessarily establish a pattern of earnings.

The defense countered by introducing testimony from its own vo cational rehabilitation counselor, Guy Hostetler. Hoste tler testified that he reviewed plaintiff’s medical records, deposition, and tax returns, as well as the depositions of plai ntiff’s physicians. He did not interview plaintiff herself. He stated that plaintiff’s medica l records only indicated physical restrictions of limited bending, twisting, and lifting more tha n five pounds for two years after the accident. He found no indication of psychological or psychosoc ial barriers to plaintiff returning to work. Hostetler opined that the tax returns supplied by pla intiff were insufficient to indicate her average income and could not even establish whether she was working full-time before the accident. That is, the tax returns supplied by plaintiff were insufficient to allow Hostetler to make a “determination in regards to [plaintiff’s] future earnin gs[.]” Hostetler ultimately opined that, pursuant to his review of plaintiff’s case, “the restrict ions put forth by Dr. Kotecha[,]” and the relevant employment standards, plaintiff had “the ability t o return to work as an attorney[.]” Hostetler stressed that his opinion was supported by the lack o f restrictions in the copy of Bojrab’s file he had reviewed. He stated that, if Bojrab testi fied to other restrictions that were
not indicated in the medical rec ords, his opinion might change but that, ultimately, whether plaintiff could return to wor k was a question for the jury to d ecide.

The defense also relied on the testimony of Sharon Filas, a ce rtified public accountant, who prepared two reports, both of which were admitted into evid ence. In Filas’s first report, she wrote that she had reviewed (1) plaintiff’s tax returns from 20 08, 2009, 2010, and 2011; (2) plaintiff’s deposition and answer s to interrogatories; (3) Ance ll’s vocational rehabilitation evaluations; and (4) the parties’ case evaluation summaries. F ilas ultimately concluded that plaintiff’s wage-loss claim wa s “overstated, speculative and [w a]s not supported by the documents” that had been provided to Filas. She listed numerou s documents which would be required to substantiate plaintiff’s income prior to the accide nt and her claim for economic damages. In preparation of her second report, Filas reviewed “ various affidavits, judgments,
invoices and court orders” that plaintiff supplied seeking to s upport her claimed income while working as an attorney before th e accident. Filas concluded th at, despite such documentation, plaintiff’s claim remained unsupported.

Consistent with the conclusions in her reports, Filas testifie d that the information provided, i.e., four years of tax returns and some canceled che cks, was insufficient to establish a future wage loss for plaintiff. Filas stated that to establishsuch a wage loss, she requested “the typical books and records,” but they were not provided.-6- Sure, I requested a lot of documents, because I had a curiosity of why that one year was so high, why that one year was ten times the reven ue of all those other years. And I wanted to understand her practice, I wanted to understand her clients, I wanted to understand how she billed, what her hours were, how she worked, what her pattern was in her typical law practice. And for me to understand that, I requested the typical books and records. Th ey were not provided to me.

Some of them were, but bits and pieces were provided to me, an d what I really wanted to look at was the basic books and records of the business: the revenue ledgers, the hours, the costs, going back to 2007, whic h was only two years before the accident happened.

And I requested several—I wanted to look at the client billing s, I wanted to look at her Social Security earnings statement. She was in her early fifties when this loss happened. I wanted to see what her patterns of earnings were that she reported to the Social Security Administration over the yea rs. There’s a lot of questions that I had, other than just getting a couple of years of tax returns.

On cross-examination, plaintiff’s counsel asked Filas whether, given her above testimony, she essentially had no opinion regarding plaintiff’s case. Filas denied the implicat ion: “No, I have an opinion . . . . I have an opini on that the wage loss claim is not supported by the records that have been provided so far.”

After deliberating, the jury com pleted a special verdict form. It found that (1) plaintiff was injured, (2) defendant’s n egligence was a proximate cause o f plaintiff’s injuries, (3) plaintiff neither did nor would suffer economic loss, and (4) her injurie s did not result in serious impairment of body function. After trial, plaintiffs moved for JNOV, a new trial, or additur on
each claim. The trial court denied such motions.

II. ANALYSIS

“We review de novo a trial court’s ruling on a motion for JNOV ,” Zaremba Equip, Inc v

Harco Nat Ins Co , 302 Mich App 7, 15; 837 NW2d 686 (2013), viewing “the evidenc e and all legitimate inferences therefrom in the light most favorable to the nonmoving party to determine if a party was entitled to j udgment as a matter of law,” Genna v Jackson , 286 Mich App 413, 417; 781 NW2d 124 (2009). “When the evidence presented could lead r easonable jurors to disagree, the trial court may not substitute its judgment for that of the jury.” Foreman v Foreman , 266 Mich App 132, 136; 701 NW2d 167 (2005). On the other hand, “[a ] trial court’s decision to grant or deny a motion for a new trial under MCR 2.611 is revie wed for an abuse of discretion,” Gilbert v DiamlerChrysler Corp , 470 Mich 749, 761; 685 NW2d 391 (2004), as is its “decision on a motion for additur,” Taylor v Kent Radiology , 286 Mich App 490, 524; 780 NW2d 900 (2009). “An abuse of discretion occurs when a court chooses an outcome that is outside the range of principled outcomes.” Heaton v Benton Constr Co , 286 Mich App 528, 538; 780 NW2d 618 (2009).-7- Plaintiff argues that the trial court erred by denying her mot ion for JNOV regarding her claim for excess economic damages. She also argues that the tr ial court abused its discretion by denying plaintiff’s motions for a new trial or additur with reg ard to the same claim. 4 We disagree in both respects.

The no-fault act allows for thir d-party recovery of work-loss damages in excess of the three-year statute of limitation provided by the no-fault act. MCL 500.3135(3)(c); MCL 500.3107(1)(b); Hannay v Dep’t of Transp , 497 Mich 45, 79; 860 NW2d 67 (2014). “[W]hile work-loss damages are compensable under the [] act, loss-of-ear ning-capacity damages are not.”

Id. “[D]amages for work loss consist of wages that a person ‘woul d’ have earned but for the accident, whereas loss-of-earning-capacity damages are wages a person ‘could’ have earned but
for the accident.” Id. at 80-81 (footnotes omitted). Accordingly, “work-loss damages are only
available if the accident was the ‘but for’ cause —i.e., the cau se-in-fact—of the work loss.” Id . at 80. “The plaintiff bears the burden to prove the damages sough t by a preponderance of the
evidence.” Id. at 79.

As she did at trial, on appeal plaintiff maintains that her sp inal condition, i.e., “lateral spondylolisthesis,” along with its resultant pain, was the caus e-in-fact of her inability to work and, thus, of her work-loss damages. 5 To prevail on that theory at trial, plaintiff was required to prove, by a preponderance, that the accident was the but-for ca use of her spinal injury.

But viewing the evidence in the light most favorable to defend ant, we conclude that reasonable jurors could disagree about whether the accident was the but-for cause of plaintiff’s claimed work-loss damages. A reasonable fact-finder could infe r from the record evidence that plaintiff’s spinal injury was suffered before the accident. Ne ither of plaintiff’s two doctors who testified at trial were able to definitively state that the lat eral spondylolisthesis was caused by the accident. Indeed, they both noted that, although uncommon, the condition could have been caused by mere degeneration. Indeed, Kotecha testified that, d ue to plaintiff’s scoliosis surgery, the vertebrae upon which he operated would have borne a larger load since 1989, thus increasing

4 Plaintiffs also argue that porti ons of Filas’s expert testimon y were inadmissible. By failing to duly include that evidentiary i ssue in their statement of quest ions presented, however, plaintiffs
waived it. See River Inv Group v Casab , 289 Mich App 353, 360; 797 NW2d 1 (2010) (“This issue is waived because plaintiff failed to state it in the statement of questions presented in its brief on appeal.”). Waiver “extinguish[es] any alleged error a nd foreclose[es] appellate review.”

In re Tiemann , 297 Mich App 250, 265; 823 NW2d 440 (2012). Moreover, even i f the issue was properly presented for our review, we would nevertheless declin e to consider it. Because plaintiffs failed to object to the pertinent testimony at trial , the issue is unpreserved. See Genna

, 286 Mich App at 423. And because we do not upset the jury’s ve rdict on the question of causation, our review of this unpreserved issue could not alter the outcome here. In other words, even if we decided that Filas’s challenged testimony was inadmi ssible, we would nevertheless conclude that reasonable jurors c ould have disagreed as to whet her the accident was the but-for cause of plaintiff’s clai med work-loss damages.

5 Plaintiff has never alleged tha t her work loss resulted from h er neck injury or concussion.-8- the rate of degeneration. Defe ndant introduced medical records establishing that, in 2006, plaintiff had x-rays taken of he r lower spine that indicated de generation of the vertebrae upon which her surgeon later operated, and that, in the years leadin g up to the accident, plaintiff was treated for back pain on at least eight occasions. Given her e arlier testimony that she had suffered no “back issues” between her recovery from the 1989 su rgery and the subject accident, such evidence seriously undermin ed plaintiff’s credibility. Ad ditionally, plaintiff’s medical records indicated that, in medical visits before the accident, she complained of many of the same symptoms as she did afterward, including fatigue, problems conc entrating, trouble at work with sitting or standing for long periods, and pain that both preven ted “her from doing much” and
forced her to take medication. Thus, even though it was uncont roverted, a rational juror might have discounted plaintiff’s tes timony that her back pain before the accident differed from that
she suffered after the accident. See Taylor v Mobley , 279 Mich App 309, 314 n 5; 760 NW2d 234 (2008) (“[T]he jurors’ prero gative to disbelieve testimony, including uncontroverted testimony, is well established.”).

Perhaps most significantly, plai ntiff acknowledged that she fa iled to inform her postaccident treating physicians about any of her back problems bet ween the 1989 surgery and the subject accident. Thus, to the extent her physicians suggested that plaintiff’s lateral spondylolisthesis was caused by the accident (which they could not confirm), their medical opinions on that subject were formed without knowledge of plain tiff’s significant and ongoing treatment for back pain between 2004 and 2008. Similarly, none of plaintiff’s family members, who testified that plaintiff’s back pain became significantly w orse after the accident, acknowledged knowing about plainti ff’s previous medical treatme nt for lower back pain. In any event, “it is the role of the jury to determine which witnesses it found credible and what weight to give the various evidence.” Freed v Salas , 286 Mich App 300, 325; 780 NW2d 844 (2009).

Plaintiff contends that, even if she had a preexisting back co ndition, the accident obviously aggravated that condition, further arguing that great weight of the evidence indicates that such aggravation caused her work-loss damages. It is true that “[e]stablished principles require that the defendants take the plaintiff as he was, with his susceptibility to [a particular] injury[.]” Wilkinson v Lee , 463 Mich 388, 396; 617 NW2d 305 (2000), citing 2 Restatement Torts, 2d, § 461 (“The negligent actor is subject to liability for harm to another although a physical condition of the other which is neither known nor shou ld be known to the actor makes the injury greater than that which the actor as a reasonable ma n should have foreseen as a probable result of his conduct.”); see also Fisher v Blankenship , 286 Mich App 54, 63; 777 NW2d 469 (2009) (“[T]he aggravati on or triggering of a preexist ing condition can constitute a compensable injury.”). However, although there was no direct e vidence that plaintiff’s lateral spondylolisthesis existed before the accident, inferences from the evidence, viewed in the light most favorable to defendant, could allow reasonable jurors to d isagree as to whether the condition predated the accident. Specifically, an x-ray taken three years before the accident showed degeneration of plaintiff’s vertebrae where the lateral spondylolisthesis l ater occurred, and plaintiff’s surgeon testified that the condition can be cau sed by degeneration. In 2006, plaintiff complained to a doctor of lower back pain at the same level she suffered after the accident. Thus, the jury could reasonably infer that plaintiff ’s lateral spondylolisthesis, the alleged cause of her work loss, occurred before the accident and was not aggravated by the accident. In the case of the pr overbial “eggshell” plaintiff, a negligent party ma y be liable for the injuries caused by his negligence, including any a ggravation of the eggshell condi tion, but the-9- negligent party does not—regardl ess of causation—assume liabili ty for the preexisting eggshell
condition.

In sum, the evidence presented was sufficient to permit reason able jurors to disagree as to whether plaintiff proved, by a preponderance of the evidence, t hat her spinal injury and its resulting pain were caused by the subject accident. Accordingl y, the trial court properly allowed the jury’s verdict to stan d and did not err in denying plaintif f’s motion for JNOV on her claim for excess economic damages. 6 See Hannay , 497 Mich at 79; Foreman , 266 Mich App at 136.

For the same reasons, the trial court did not abuse its discre tion in denying plaintiff’s motions for a new trial on her claim for excess economic damage s. Because the jury found that plaintiff was not entitled to such damages, its verdict was not“grossly inadequate.” MCR 2.611(A)(1)(d). Similarly, for the reasons set forth supra , the evidence did not preponderate so heavily against the verdict as to render it a miscarriage of ju stice. MCR 2.611(A)(1)(e); Shuler v Mich Physicians Mut Liability Co , 260 Mich App 492, 518; 679 NW2d 106 (2004). Likewise, because there was an interpretation of the evidence that suppor ted the jury’s verdict, the trial
court also did not abuse its dis cretion in denying plaintiff’s motion for additur. See Hill v Sacka

, 256 Mich App 443, 461; 666 NW2d 282 (2003).

Plaintiff also argues that the trial court erred by denying he r motion for JNOV regarding her claim for noneconomic damages. We disagree.

Under the no-fault act, “[a] person remains subject to tort li ability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered . . . serious impairment of body function . . . .” MCL 500.3135(1) (emphasis added); McCormick v Carrier , 487 Mich 180, 189; 795 NW2d 517 (2010). Plaintiff only argue s that her spinal injury constitutes a serious impairment of body function, not that her concussion or neck injury constituted such impairment. To obtain noneconom ic damages for such impairment, plaintiff was requir ed to establish that the injury causing the impairment was caused by defendant’s negligence, i.e ., the accident. MCL 500.3135(1) . Since the evidence presented at trial could lead reasonable juro rs to disagree as to whether pl aintiff’s spinal injury was caused by the accident, the trial court di d not err in denying her motionfor JNOV on her claim for noneconomic damages. See Foreman , 266 Mich App at 136.

Likewise, the trial court did not abuse its discretion by deny ing plaintiff’s motions for a new trial on her claim for noneconomic damages. Because plaint iff was not entitled to those damages, the verdict was not g rossly inadequate. MCR 2.611(A)( 1)(d). Further, plaintiff has failed to demonstrate that the great weight of the evidence pre ponderated against the jury’s finding that her spinal injury w as not caused by the accident. MCR 2.611(A)(1)(e). And because there was an interpretation of the evidence that suppor ted the jury’s verdict, the trial

6 Having reached this conclusion, we need not decide whether the jury’s verdict regarding the

amount of plaintiff’s purported work-los s damages was contrary to the great weight of the
evidence.-10- court did not abuse its discretion in denying plaintiff’s motio n for additur on her claim for noneconomic damages. See Hill , 256 Mich App at 461.

Finally, the trial court did not err in denying Mark and Ian’s motions for JNOV on their claims of loss of consortium, nor did it abuse its discretion i n denying Mark and Ian’s motion for
a new trial or additur on those same claims. Such claims are d erivative, with recovery “contingent upon the injured spouse’s recovery of damages for t he injury.” Wesche v Mecosta

Co Rd Comm , 267 Mich App 274, 279; 705 NW2d 136 (2005) (quotation marks a nd citations omitted). Because plaintiff failed to obtain primary recovery, Mark and Ian’s claims for loss of consortium necessarily fail.

Affirmed. As the prevailing part y, defendant may tax costs pu rsuant to MCR 7.219.

/s/ Mark T. Boonstra
/s/ Kurtis T. Wilder
/s/ Patrick M. Meter