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### STATE OF MICHIGAN

COURT OF APPEALS

BURT HOLT,

Plaintiff-Appellee, UNPUBLISHED May 23, 2017

v No. 330076 Wayne Circuit Court AMARILD USHE and RELIABLE TRANSPORTATION SPECIALISTS, INC., LC No. 12-007202-NI

Defendants-Appellants, and

CONTAINERPORT GROUP, INC.,

Defendant.

Before: T ALBOT , C.J., and K. F. K ELLY and B ORRELLO , JJ.

P ER C URIAM

. Defendants-appellants, Amarild Ushe (Ushe) and Reliable Transp ortation Specialists Inc. (Reliable), appeal by right an o rder denying their post-trial m otions following a jury verdict in favor of plaintiff Burt Holt (p laintiff). Finding no errors req uiring reversal, we affirm.

I. BASIC FACTS

Plaintiff is a truck driver who was injured while at Container port Group Inc. (CPG). CPG is a facility that stores, repairs and inspects equipment a s it comes in and out of the depot. CPG has a “shed” or “canopy” at its entrance. Truck drivers ar e required to stop and have their vehicles inspected in one of two lanes. On March 3, 2011, plai ntiff was at CPG in the second of two inspection lanes. He was out of his vehicle while CPG empl oyees conducted an inspection of his rig. In lane one was Ushe’s rig. Ushe drove for Reliab le and was likewise undergoing an inspection of his rig. After receiving his inspection papers, Ushe re-entered his truck and began to drive away. The rear tires of Ushe’s vehicle struck plainti ff, who was standing between the two trucks, causing his body to twist and plaintiff fell to the ground. Plaintiff suffered a severe injury to his right leg.

Plaintiff originally sued Ushe and Reliable, claiming that Ush e was negligent (and Reliable was therefore vicariously liable) in pulling the rig o ut of the inspection lane when Ushe knew or should have known that plaintiff was in the “zone of da nger.” Ushe/Reliable filed a-2- notice of third-party fault, claiming that CPG was negligent in failing to properly monitor and control ingress and egress of the vehicles it inspected. Plain tiff later amended his complaint to include allegations that CPG was negligent in the manner in whi ch it conducted inspections.

There was a 10-day jury trial over the course of three weeks. Plaintiff’s theory of the case was that Ushe was negligent when he pulled his vehicle out of the inspection without regard to plaintiff’s safety and that CPG placed truck drivers in a pe rilous position by requiring them to exit their vehicles during insp ection without implementing or m aintaining any policies or procedures for the protection of the drivers. Collectively, de fendants argued that plaintiff was comparatively negligent because he was on his cell phone at the time of the accident and failed to use reasonable care for his own safety. They argued that pl aintiff effectively placed himself in the path of Ushe’s vehicle. The nature and extent of plaintiff ’s injuries were hotly contested. Defendants, utilizing what plaintiff’s counsel referred to as a “fat defense,” argued that plaintiff, who was 5’9 and over 300 pounds at the time of the accident, su ffered severe injury because he was particularly susceptible and because he had a number of pre -existing conditions that complicated his recovery. However, it must be noted that defen dants presented no medical testimony to dispute plaintiff’s injuries other than their cros s-examination of plaintiff’s medical experts.

The jury concluded that Ushe and Reliable were 50% at fault, C PG was 40% at fault and plaintiff was 10% at fault for the accident. It awarded plaint iff $6,000,000 in past non-economic loss and over $15,000,000 for futu re non-economic loss. On Jul y 28, 2015, the trial court entered an order of judgment ref lecting that plaintiff’s past a nd future economic damages were $386,360.57 and his past and future non-economic damages were $ 16,984,331.90 for a total judgment of $17,370,692.47, which was reduced by 10% to reflect plaintiff’s comparative fault.

The trial court denied a number of post-trial motions. Ushe and Reliable filed a claim of appeal on November 6, 2015. CPG also filed a claim of appeal o n November 12, 2015 and the two appeals were originally consol idated. However, a stipulati on to dismiss CPG’s appeal was entered on December 22, 2016. Holt v Ushe , unpublished order of the C ourt of Appeals, entered December 22, 2016 (Docket No. 330202).

II. REMITTITUR/NEW TRIAL BA SED ON AN EXCESSIVE VERDICT

Ushe and Reliable argue that the trial court erred when it den ied their motion for remittitur or new trial. We disagree.

[T]he question of the excessiveness of a jury verdict is genera lly one for the trial court in the first instance. The trial court, having witnessed all the testimony and evidence as well as having had the unique opportunity to evalua te the jury’s reaction to the proofs and to the individual witnesses, is in the best position to make an informed decision regarding the excessiveness of the ve rdict. Accordingly, an appellate court must accord due deference to th e trial court’s decision and may only disturb a grant or denial of remittitur i f an abuse of discretion is shown. [ Palenkas v Beaumont Hosp , 432 Mich 527, 531; 443 NW2d 354 (1989).]-3- “An abuse of discretion occurs when a court chooses an outcome that is outside the range of principled outcomes.” Heaton v Benton Const Co , 286 Mich App 528, 538; 780 NW2d 618 (2009).

Ushe and Reliable challenge only the jury’s non-economic damag es award. The jury awarded plaintiff $6,000,000 in past non-economic loss and over$15,000,000 for future noneconomic loss ($750,000 every year from 2016-2035). The trial court’s judgment reflects that plaintiff’s total past and future non-economic damages are $16, 984,331.90, which is reduced by 10% to reflect plaintiff’s comparative fault. CPG’s portion of the non-economic loss is $6,919,164.13, while Ushe/Reliab le’s portion is $8,735,142.35.

MCR 2.611(1)(c) and (d) provides:

(1) A new trial may be granted to all or some of the parties, o n all or some of the issues, whenever their substantial rights are materially affect ed, for any of the following reasons:

***

(c) Excessive or inadequate damages appearing to have been infl uenced by passion or prejudice.

(d) A verdict clearly or grossly inadequate or excessive. [See also MCL 600.6098(2)(b)(iv) and (v).]

“The only consideration expressly authorized by [the court rule] . . . is whether the jury award is supported by the evidence.” Palenkas , 432 Mich at 532. Whether an award “shocks the conscience” is not an appropriate consideration because it is w holly subjective. Id. While a trial court should consider, for example, whether bias or prejudice i nfluenced the award, it must do so based only on “ objective considerations relating to the actual conduct of the trial or to the evidence adduced.” Id. To the extent that they are objectively verifiable, a trial co urt may consider: (1) whether the award was obtained by “improper metho ds, prejudice, passion, partiality, sympathy, corruption, or mistake of law or fact”; ( 2) whether the award was within the limits of what reasonable minds would find to be just compensat ion for the injury; and, (3) whether the award is comparable to awards in similar cases. Id.

“The power of remittitur should be exercised with restraint.” Silberstein v Pro-Golf of Am, Inc , 278 Mich App 446, 462; 750 NW2d 615 (2008). “When deciding w hether to grant a motion for remittitur, the trial court must examine all the evi dence in the light most favorable to the nonmoving party to determine whether the evidence supported the jury’s award.” Taylor v Kent Radiology , 286 Mich App 490, 522; 780 NW2d 900 (2009). Where, as here, “a jury verdict is based in part upon pain and suffering, a trial court must ba lance all of the factors involved against the general principle that there is no absolute mathema tical formula or standard by which pain and suffering can be measured; thus, the amount allowed fo r pain and suffering must ordinarily rest in the sound judgment of the jury.” Palenkas , 432 Mich at 556. “If the award for economic damages falls reasonably within the range of the evide nce and within the limits of what reasonable minds would deem just compensation, the jury aw ard should not be disturbed.” Silberstein , 278 Mich App at 462.-4- Ushe and Reliable cite Gilbert v DaimlerChrysler Corp , 470 Mich 749, 765; 685 NW2d 391 (2004):

When a verdict is procured through improper methods of advocac y, misleading argument, or other f actors that confound the jury’s quantification of a party’s injuries, that amount is inherently unreliable and unli kely to be a fair estimate of the injured party’s losses. Likewise, when a verdic t is unsupported by the record or entirely inconsistent with verdicts rendered in s imilar cases, a reviewing court may fairly conclude that the verdict exceeds th e amount required to compensate the injured party. [ Id. at 765.]

They rely on this passage and focus solely on the third prong o f the Palenkas test – whether the amount actually awarded was comparable to awards in similar cas es. In so doing, they effectively ignore the evidence supporting the jury’s verdict. Instead, Ushe and Reliable spend an inordinate amount of time setting forth a general survey of Michigan personal injury verdicts as well as a survey of reported verdicts for automobile neglige nce cases to demonstrate that the award in this case was “far outside the realm of what reasonabl e minds would deem just compensation for the kind of injuries Holt sustained.” However , “[t]he only consideration expressly authorized by [the court rule] . . . is whether the jury awar d is supported by the evidence.” Palenkas , 432 Mich at 532. “There may be some cases in which it is pos sible to determine objectively that a compensatory award is or is not su pported by the record.” Gilbert
, 470 Mich at 767. How an award compares with other cases is onl y one consideration; the starting point and the primary focus shoul d be on the evidence produced at trial.

Viewing the evidence in a light most favorable to plaintiff, p laintiff’s injuries include not only the original ankle injury, which has never properly healed , and a traumatic brain injury, but also numerous other injuries stemming from complications of rec overy, such as knee, shoulder, and back problems. By all accounts at trial, plaintiff was an active individual with a robust work habit prior to the accident, which had debilitating and permane nt consequences. Plaintiff testified regarding the effect of these injuries on his life. He was unable to care for himself and was placed in a residential assi sted living facility after bein g released from the hospital. At that time, plaintiff was basically an “invalid” and felt “worthless. ” It took five months before plaintiff was able to live on his own. In the meantime he was “sitting there. Wasn’t nothing to do” but try and heal.

Plaintiff testified that he wears sunglasses all of the time b ecause his eyes are “messed up.” He sees floaters and spots. He has chronic headaches. T hese problems started near the time plaintiff suffered from the pulmonary emboli. Plaintiff w as doing his best to get better but it felt like “a waste of time,” and plaintiff had been in pain every day since the March 2011 accident. Plaintiff was trying to make the best out of it but there was little he could do but sit around. He only had transportation for doctors’ appointments. It was hard for plaintiff to get around and he was on a long list of medications. He took a nar cotic for pain, but it was “like taking a baby aspirin.” The pai n at night would often interfer e with his sleep.

The physicians who treated and evaluated plaintiff confirmed that he continued to live with pain. Dr. Rahoul Vaidya saw plaintiff every two or three months. Vaidya testified that plaintiff continued to experien ce pain and discomfort from his injuries and the pain was chronic.-5- Vaidya explained that trauma can take three to five years to re cover from, but that plaintiff did not seem to be making any progres s and “it’s prob ably not going to improve dramatically, maybe a little bit.” Dr. Mary Miller had treated plaintiff for a sig nificant time at the rehabilitation center. She noted that plaintiff suffered from chronic pain an d depression, which was a common side effect of chronic pain. In fact, plaintiff’s depressive s ymptoms were so severe that Miller referred plaintiff to Dr. Daniel Rataj to evaluate whether plai ntiff had a traumatic brain injury. Miller testified that plainti ff would likely suffer ongoing pai n and disability from his injuries every single day for the rest of his life and that it was unlik ely that plaintiff would ever recover. He would need ongoing medical care and medications and faced a number of future surgeries depending on how his joints held up. Rataj found plaintiff’s d epression to be “striking” and obvious at their first meeting. Plaintiff appeared socially wi thdrawn and extremely sad. Rataj noted that plaintiff’s injuries c hanged plaintiff’s life. He w ent from being very motivated and a high achiever but now lacked the energy to function at the same level. Plaintiff suffered headaches, dizziness, sensitivity to sound and light, depressio n, and anxiety; he suffered from anhedonia, which was the inability to experience pleasure. Pla intiff also had thoughts about killing himself. Rataj agreed tha t it was unlikely plaintiff w ould ever recover. He was also at a greater risk of developing dementia. Dr. Gerald Shiener agreedthat plaintiff suffered from chronic pain and depression. He had trouble sleeping and the l ack of restorative sleep caused him to lose initiative. Chronic pain also caused negative thinking and general misery – “You can’t see that you’ll ever feel any better.” Plaintiff had poo r memory, poor concentration, irritability, and social withdraw al. He was extremely frustrat ed with himself. Every aspect of plaintiff’s life was affected by the accident. Finally, Dr. An toine Geffrard testified that there was no doubt plaintiff continued to su ffer irretractable pain witho ut interruption.

The evidence at trial provided objective support for the jury’ s ultimate award. There is no indication that the jury’s verdict was the result of passion or bias.

Ushe and Reliable complain that plaintiff’s comments during cl osing argument urged the jury to do more than simply compensate plaintiff for his injuri es. However, we have examined the record and can determine nothing inappropriate about counse l’s arguments. Moreover, the fact that the jury awarded less than what plaintiff’s counsel r equested indicates that the jury deliberated the issue appropriately and was not influenced by p assion or prejudice.

Next, Ushe and Reliable argued that the award was the culminat ion of errors and irregularities at trial but, as d iscussed below, there were either no errors or errors that were harmless. There is no support for the claim that irregularitie s resulted in an excessive award.

Finally, Ushe and Reliable make a constitutional argument, arg uing that a grossly excessive award for pain and su ffering may violate a defendant’ s due process rights. Again, they rely on a footnote from Gilbert :
There is also an overarching constitutional issue to consider. In State Farm Mut Automobile Ins. Co v Campbell, 538 US 408, 416; 123 S Ct 1513; 155 L Ed 2d 585 (2003), the United States Supreme Court concluded that “ [t]he Due Process Clause of the [United States Constitution’s] FourteenthAmendment prohibits imposition of grossly excessive or arbitrary punishme nts on a tortfeasor.” While State Farm dealt with punitive damage awards, the due process-6- concerns articulated in State Farm are arguably at play regardless of the label given to damage awards. A grossly excessive award for pain and suffering may violate the Due Process Clause even if it is not labeled “punit ive.” In this case, however, there is no need to reach this constitutional question , given the necessity of reversal on other grounds. [ Gilbert , 470 Mich at 765 n 22.]

Unlike other cases where a panel of this court is tasked with d etermining whether language in an opinion constitutes dicta, the plain language of the foregoing passage makes clear that “there is no need to reach this constitutional question.” “Stare decisis does not arise from a point addressed in obiter dictum.” Griswold Properties, LLC v Lexington Ins Co , 276 Mich App 551, 563; 741 NW2d 549 (2007). Moreover, the facts in Gilbert are not on point with the case at bar. Our Supreme Court in Gilbertdetermined that the plaintiff’s $20 million award for noneconomic damages was excessive because “[n]ot only does the ver dict exceed verdicts in similar cases by leaps and bounds, but, as shown in this opinion, it wa s awarded by a jury inflamed by hyperbolic rhetoric, prejudice-baiting argument, and unscientif ic expert testimony.” Gilbert , 470 Mich at 770. For example, the plaintiff’s attorney in Gilbert engaged in “inflammatory rhetoric” by deliberately trying to “provoke the jury by supplanting law, fact, and reason with prejudice, misleading arguments, and repeated ad hominem attacks against d efendant based on its corporate status” and by comparing the plaintiff to victims of the Holoca ust. Id. at 770-771. Here, plaintiff’s attorney did not ask the jury to suspend reason and award plaintiff a large verdict in order to punish defendants; inst ead, counsel asked the jury to consider the nature and extent of plaintiff’s injuries and the lif elong effect those injuries wou ld have. After a thorough examination of the lower court record, there is nothing objecti onable about counsel’s behavior.

III. EVIDENCE OF AN INDEMNIFICAT ION AGREEMENT AND THE NOTICE O F NONPARTY FAULT

Ushe and Reliable argue that the trial court erred in allowing testimony regarding the meaning of an alleged indemnity agreement between CPG and Relia ble and that the trial court also erred in allowing plainti ff to admit the notice of non-par ty fault into evidence. We conclude that there was nothing erroneous regarding the indemnification testimony and, while we agree with Ushe and Reliable that the notice of non-party fault shoul d not have been admitted into evidence, such error was harmless.

“A trial court’s decision to adm it or exclude evidence is revi ewed for an abuse of discretion.” Edry v Adelman , 486 Mich 634, 639; 786 NW2d 567 (2010). “A court necessarily abuses its discretion when it admits evidence that is inadmissi ble as a matter of law. However, any error in the admission or exclusion of evidence will not warrant appellate relief unless refusal to take this action appears inconsistent with substanti al justice, or affects a substantial right of the opposing party.” Craig v Oakwood Hosp , 471 Mich 67, 76; 684 NW2d 296 (2004) (footnotes omitted). MCR 2.613(A) provides:

An error in the admission or the exclusion of evidence, an err or in a ruling or order, or an error or defect in anything done or omitted by the court or by the parties is not ground for granting a new trial, for setting asi de a verdict, or for vacating, modifying, or otherwise disturbing a judgment or orde r, unless refusal to take this action appears to the c ourt inconsistent with substan tial justice.-7- The test is whether the error was harmless. Chastain v Gen Motors Corp , 467 Mich 888; 654 NW2d 326 (2002).

Plaintiff’s attorney, responding to the so-called “fat defense ,” argued that Ushe and Reliable and CPG had previously blamed one another for the acci dent and then changed course and placed all of the blame on plaintiff. Counsel noted that i n the notice of non-party fault, Ushe and Reliable claimed that CPG was negligent for failing to prop erly manage the ingress and egress of vehicles in its facility but that it had abandoned th at claim at trial, likely due to the fact that Reliable would be responsible for all damages under an ind emnification agreement. Contrary to Ushe and Reliable’s position on appeal, plaintiff’s intent was not to argue for an inflated jury award by implying that Reliable would not have to pay the judgment; instead, counsel was merely trying to demonstrate how and why the defend ants took the positions they did.

“Generally, all relevant eviden ce is admissible and irrelevantevidence is not. Evidence is relevant if it has any tendency to make the existence of a f act that is of consequence to the action more probable or less probable than it would be without the evidence.” Morales v State Farm Mut Auto Ins Co , 279 Mich App 720, 729–730; 761 NW2d 454 (2008), citing MRE 40 2 and 401.

Relevance divides into two components: materiality and probativ e value. Material evidence relates to a fact of c onsequence to the action. A mate rial fact need not be an element of a crime or cause o f action or defense but it must , at least, be in issue in the sense that it is within the range of litigated matters i n controversy. Materiality looks to the relation between the propositions thatthe evidence is offered to prove and the issues in the case. If the evidence is offered to help prove a proposition that is not a matte r in issue, the evidence is immaterial. [ Hardrick v Auto Club Ins Ass’n , 294 Mich App 651, 667; 819 NW2d 28, 37 (2011) (citations and quotation marks omitted).]

“Evidence bearing on a witness’s credibility is always relevant .” In re Dearmon , 303 Mich App 684, 696; 847 NW2d 514 (2014); see also Powell v St John Hosp , 241 Mich App 64, 73; 614 NW2d 666 (2000). However, MRE 403 provides that even relevant evidence may be excluded “if its probative value is subs tantially outweighed by the dang er of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of und ue delay, waste of time, or needless presentation of cumulative evidence.”

Ushe and Reliable first argue that the indemnification was ina dmissible under MCL 500.3030 and MRE 411. To be clear, there was no evidence of anactual indemnification between Reliable and CPG, as seems to be implied by the parties on appeal. Daniel Davis, CPG’s safety and risk management officer, testified that he believed that Reliable, in order to have access to the equipment at CPG, would have to be a party t o a contract called the Uniform Intermodal Interchange Agreement (UIIA). The agreement would h ave been between Reliable and the Intermodal Association of North America; there was no d irect agreement between the parties. The agreement outlines the relationship between motor carriers like Reliable and equipment providers lik e CPG. MCL 500.3030 provides:-8- In the original action brought by the injured person, or his or her personal representative in case death results from the accident, as ment ioned in section 3006, the insurer shall not be made or joined as a party defend ant, nor, except as otherwise provided by law, shall any reference whatever be made to such insurer or to the question of carrying of such insurance during the cou rse of trial. [Footnote omitted.]

MRE 411 provides:

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwis e wrongfully. This rule does not require the exclus ion of evidence of insurance ag ainst liability when offered for another purpose, such as proof of agency, ownership , or control, if controverted, or bias or pr ejudice of a witness.

At issue is whether an indemnification agreement is the same as insurance under the rule and
statute.

Ushe and Reliable cite Garvin v Detroit Bd of Ed , unpublished opinion per curiam of the Court of Appeals, issued June 16, 2015 (Docket No. 319557), in support of their position that indemnification agreements are treated the same as insurance. In Garvin , a panel of this Court held:

Although the remainder of the issues raised by defendants are rendered moot by our ruling, we will address one argument posed by defen dants to avoid error in the new trial. Evidence that the individual defendants might be indemnified for any judgment entered against them is not admiss ible, just as evidence of the existence or none xistence of liability insuranc e is not admissible under MRE 411. The issue of indemn ification, like the issue of liability insurance, is irrelevant because it “ ‘tends to influence and prejudice jurors by imparting to them the information that whatever verdict they may render will be immaterial to the defendant, since he will not have to pay for it.’ ” Id. at 521–522, quoting 29 Am Jur 2d, Evidence, § 404, p. 458. See Felsner v McDonald Rent–A–Car, Inc, 173 Mich App 518; 434 NW2d 178 (1988). If a party raises an obj ection to another party’s attempt to question a witness about indemnification, the appropriate remedy is a curative instruction advising the jury that the question of indemnification has no bearing on any issue in the case and tha t it must refrain from any inference, speculation, or discussion about indemnific ation. [ Id. at slip op, p 6 (footnote omitted.]

Garvin , as an unpublished opinion, has no precedential value. MCR 7. 215(C)(1). The panel’s one-paragraph analysis flies in the face of the plain language of MRE 411. An appellate court “uses the principles of statutory construction when interpretin g a Michigan court rule. We begin by considering the plain language of the court rule in order to ascertain its meaning.” Henry v Dow Chem Co , 484 Mich 483, 495; 772 NW2d 301 (2009).-9- The primary goal when interpreting a statute is to discern the intent of the Legislature by focusing on the most reliable evidence of that i ntent, the language of the statute itself. When legislative intent is clear from t he language, no further construction is required or permitted. [ Fairley v Dep’t of Corrections , 497 Mich 290, 296–297; 871 NW2d 129, recon den 498 Mich 864 (2015).]

The plain language of the rule do es not reference indemnificati on.

Moreover, Garvin is distinguishable from the case at bar. Evidence of a party’ s liability insurance is inadmissible because such evidence may result in l arge verdicts if the jury believes the defendants are not on the hook for the judgment. Here, evi dence of an indemnification agreement was not admitted to inform the jury that CPG would no t have to pay for any judgment nor was it used to show that a party acted negligently or wrong fully. Instead, plaintiff used the indemnification agreement to demonstrate how the various defend ants were connected and how their theories of liability had shifted. This was proper to sh ow Davis’s bias as a witness. Davis testified that Ushe was not negligent under the circumstances. An indemnification agreement might explain why Ushe and Reliable’s accident reconstructionis t did not take into account CPG’s conduct and, likewise, why CPG’s accident reconstructioni st did not factor in Ushe’s conduct. Because there is no controlling case law that provide s an indemnification agreement is the same as insurance under MRE 411 and because evidence of an indemnification agreement was used for a proper purpose, the trial court did not abuse it s discretion regarding references to an indemnification agreement.

More problematic is the trial court’s decision to allow the no tice of non-party fault to be admitted into evidence as a “pleading.” Ushe and Reliable file d the notice as a means of allocating fault under Michigan’s tort reform. At trial, plaintiff sought to use the notice of nonparty fault as an admission under MRE 801(d)(2). “[U]nder MRE 801(d)(2), statements in pleadings may be treated as admissions.” Hunt v CHAD Enterprises, Inc , 183 Mich App 59, 63; 454 NW2d 188 (1990). However, MCR 2.110, which defines what a pleading is, is silent on a notice of non-party fault . The rule provides:

(A) Definition of “Pleading.” The term “pleading” includes only :
(1) a complaint,

(2) a cross-claim,

(3) a counterclaim,

(4) a third-party complaint,

(5) an answer to a complaint, cross-claim, counterclaim, or thi rd-party complaint, and

(6) a reply to an answer.

No other form of pleading is allowed. (Emphasis added.)-10- Therefore, the trial court erred when it concluded that the not ice of non-party fault was admissible as a pleading.

Plaintiff concedes that the notice of non-party fault was not a pleading under MCR 2.110, but still maintains that it was “tantamount to a pleading” for which MRE 801(d)(2) applied. We disagree. There is a differen ce between a statement of fact or admission to which the rule applies and a mere allegation or alternative theory. Larion v City of Detroit , 149 Mich App 402, 406- 407; 386 NW2d 199 (1986). Alternative pl eadings are generally accepted and “a party should not be placed in the position of ha ving to forego a claim at th e risk of having inconsistent allegations treated as admissions.” Id. at 407. The Court in Larion explained:

Our decision is in accord with the trend described in McCormic k on Evidence (3d ed, 1984), § 265, pp. 780-782:

“An important exception to the use of the pleadings in the case as admissions must be noted. A basic problem which attends the use of written pleadings is uncertainty whether the evidence as it act ually unfolds at trial will prove the case described in the pleadings. Tradit ionally a failure in this respect, i.e., a variance between pleading and proof, could bring disaster to the pleader’s case. As a safeguard against de velopments of this kind, the common law evolved the use of counts, each a complete separate statement of a different version of the same basic cla im, combined in the same declaration, to take care of variance poss ibilities. The same was done with defenses. Inconsistency between counts o r between defenses was not prohibited; in fact it was essential t o the successful use of the system. Also essential to the success of the system was a prohibition against using allegations in one count or def ense as admissions to prove or disprove allegations in another. For a t ime, under the influence of the Field Code of 1848, the view prevailed tha t in a given case there could exist only one set of facts and that inconsist ent statements and defenses were therefore not a llowable. Nevertheless, uncert ainty has persisted as to how a case will in fact develop at trial, and s ome procedure is needed for dealing with probl ems of variance. The modern equ ivalent of the common law system is the use of alternative and hypothetica l forms of statement of claims and defenses, regardless of consistency. Itcan readily be appreciated that pleadings of this nature ar e directed primarily to giving notice and lack the essential character of an admission. To allow them to operate as admissions woul d render their use ineffective and frustrate their underlying purpose. He nce the decisions with seeming unanimity deny them status as judici al admissions, and generally disallow them as evidential admissions

. “The trend is to expand the app lication of the exception descri bed above to the general rule of admissibility to include, not only the comm on law practice and modern hypothetical and alternative allegations, b ut in addition situations in which a more skillful pleader would have avoided the pitfalls of admissions by reso rting to one of those techniques. * * *.-11- The same trend is evident in case s involving separate actions against different defendants to reco ver for the same injury. The trend is consistent with the prevailing view that th e primary purpose of pleadings is to give notice and that alternative or hypothetical allegations are not usable as admissions, but the extent to which it will prevail is difficul t to estimate.” (Footnotes omitted; emphasis added.)

[ Larion , 149 Mich App at 408–400.]

Defense counsel states it best in her appellate brief: “[T]he purpose of the non-party fault procedures is to provide a plaintiff with notice that another p arty may be at fault, not to lock a defendant into one pos ition, preclude that defendant from any i nconsistent allegations throughout the course of the proceedings, and deprive that defendant of it s right to devise its own trial strategy.”

However, although the trial court erred in allowing plaintiff to introduce the notice of non-party fault into evidence, the error was harmless because U she testified to the exact allegations contained within the notice:

Q . In paragraph one [of the not ice of nonparty at fault] here’s what is [sic] says, [CPG] is a nonparty at fault for failure to properly and adequately monitor the ingress and egress of vehicular traffic within the inspecti on area of CPG resulting in the accident that give [sic] rise to plaintiff’s o riginal complaint. Did I read that right?

A . Yes.

Q . You just told the jury you agreed with that. You think the way in which CPG had this whole thing set up caused and/or contributed to my client’s accident and injury; don’t you?

A . Yes.

Q . Wherefore, defendants; A marild Ushe; that’s you?

A . Yes.

Q . And Reliable Transportation Se rvices, LLC respectfully reque st that this Honorable Court instruct the jury at the time of trial that they are to assess a percentage of fault attributable to the nonparty . . . You agr ee with that, don’t you?

A . Yes.

* * *

Q . You agree with this statement by [the attorney] on your beha lf that this accident in part is because of CPG and what they did wrong.-12- A . I don’t write this.

Q . I know, but you agree. You already told me three times; agr eed?

A . Yes.

Q . So you’re not backing off that in this trial, are you?

A . No.

Even without the direct reference to the notice of non-party fa ult, Ushe’s testimony confirms that he believed the situation at CPG was at least partially to blam e for the accident. Any error was harmless.

IV. GREAT WEIGHT OF THE EVIDENCE

Ushe and Reliable argue that the jury’s verdict was against th e great weight of the evidence and that plaintiff was at fault for the accident. The y note that (1) plaintiff was on his cell phone at the time of the accident; (2) plaintiff was not w earing a reflective vest; (3) plaintiff should have been able to see Ushe’s cab move; (4) plaintiff sto od directly in the line of travel of Ushe’s rear wheels; (5) plaintiff failed to appreciate the soun d of Ushe starting his truck and releasing the air brake; and, (6 ) plaintiff had been to CPG on numerous occasions and knew that adjacent trucks moved forward once cleared by inspection. Ushe and Reliable contend that the jury was likely improperly influe nced by impermissible expert t estimony and that the jury was erroneously instructed regardi ng memory loss. We disagree witheach of these claims.

Ushe and Reliable first argue that they were entitled to a dir ected verdict because the jury’s comparative negligence fi nding was against the great wei ght of the “undisputed” evidence.

We review for an abuse of discretion a trial court’s denial of a motion for new trial. When a party challenges a jury’s verdict as against the great weight of the evidence, this Court must give s ubstantial deference to the jud gment of the trier of fact. If there is any competent evidence to support the jury’s verdict, we must defer our judgment regarding the credibility of the witnesses. [ Allard v State Farm Ins Co , 271 Mich App 394, 406–407; 722 NW2d 268 (2006) (footnotes omitted).]

MCR 2.611(1)(e) provides that a newtrial may be granted if th e verdict is against the great weight of the evidence or contrary to law. “But a jury’s verdict should not be set aside if there is competent evidence to support it,” which requires a re view of “the whole body of proofs.” Dawe v Bar-Levav & Assoc (On Remand) , 289 Mich App 380, 401; 808 NW2d 240 (2010).

Ushe and Reliable cite Modzel v Norwalk Truck Lines , 325 Mich 693; 39 NW2d 226 (1949) in support of their claim that plaintiff placed himself in danger. However, Modzel was decided under the old contributory negligence standard, which h as been replaced by the comparative negligence standard. Placek v City of Sterling Hts , 405 Mich 638, 650; 275 NW2d 511, 514 (1979) (“We hold, in the interest of justice for all l itigants in this state, that the doctrine-13- of comparative negligence hereby replaces the doctrine of contr ibutory negligence . . .”). Thus, while the plaintiff’s contributory negligence acted as a comple te bar, plaintiff’s alleged comparative negligence in this case was considered and properlyapportioned.

Defendants then discuss the evidence at trial, claiming that e ven plaintiff’s own experts believed that plaintiff placed himself in the path of danger. Defendants claim that plaintiff’s biomedical engineer expert, Dr. Jamie Williams, testified that plaintiff was the one who put himself in the position of standing within the path of Ushe’s t ires. But defendants provide an incomplete reference to Williams’s testimony. On re-direct, sh e also testified:

Q . He’s only in the path if the truck moves.

A . Correct.

Q . If the truck stops because he’s close enough because you see him in the rearview mirror, because he’s anywhere near the rear wheel, the accident doesn’t happen.

A . Correct.

Ushe and Reliable also contend that plaintiff’s accident recon structionist, Timoth Abbo, testified that plaintiff placed himself in the path of the rear chassis tires. But, again, this is not a fair representation of Abbo’s te stimony. Abbo testified that the fact that Ushe was moving forward at the time of the accident indicated that plaintiff wa s positioned in front of the wheel before the truck moved and, therefore, was there to be seen if Ushe had checked his mirror. The mirrors were designed to look down the sides of the vehicle. I f Ushe had actually looked, he would have seen plaintiff. There was no evidence that plaintif f walked into the wheel.

Ushe and Reliable’s arguments regarding plaintiff’s comparativ e fault is essentially a request that this Court usurp the jury’s role in deciding matte rs of witness credibility. Even if plaintiff was negligent in all of the ways that they claim, the re was ample evidence to support the jury’s allocation of fault.

Ushe and Reliable next argue that the jury’s comparative negli gence finding was influenced by the trial court erroneously giving M Civ JI 10.09 regarding memory loss. Claims of instructional error are generally reviewed de novo. Lewis v LeGrow , 258 Mich App 175, 211; 670 NW2d 675 (2003). “MCR 2.516(D)(2) states that the trial co urt must give a jury instruction if a party requests such instruction, and it is applicable to the case. We review for abuse of discretion the trial court’s dete rmination whether a standard j ury instruction is applicable and accurate.” Lewis , 258 Mich App at 211.

The trial court gave thi s standard instruction:

It is alleged that the plaintiff has a loss of memory concerni ng the facts of this case and it was caused by the occurrence. If you determin e that the plaintiff had a loss of memory that was caused by the occurrence, you may infer that the plaintiff was not negligent, how ever, you should weight [sic] a ll the evidence in determining whether the plain tiff was or was not negligent.-14- There is nothing objectionable a bout this standard instruction, which advises the jury that if it believes that plaintiff suffered from memory loss as a result o f the accident, it may infer that plaintiff was not negligent, but that the jury should still wei gh all the evidence in determining plaintiff’s comparative negligence.

Finally, Ushe and Reliable compl ain that the jury was improper ly influenced by impermissible expert testimony. “[T]he qualification of a witn ess as an expert and the admissibility of the testimony of the witness are in the trial court’s discretion and we will not reverse on appeal absent anabuse of that discretion.” Surman v Surman , 277 Mich App 287, 304–305; 745 NW2d 802 (2007).

Ushe and Reliable complain that Abbo did not investigate the a ccident himself and did not perform any tests or obtain measurements. Instead, he simp ly observed CPG and relied on witnesses’ testimony. However, th ese things were explored duri ng cross-examination and the jury was made aware of any alleged deficiencies in Abbo’s analy sis. Issues of credibility, including evaluating expert testimony, “should be left for the fact-finder.” Dawe , 289 Mich App at 401. It appears that, at least on appeal, Ushe and Reliable do not challenge Abbo’s qualifications, only his opinions. Instead, Ushe and Reliable complain that the trial court impermissibly allowed Abbo to testify that defendants were liab le while plaintiff was not. Abbo testified that plaintiff was not at fault for the accident. Th e trial court denied defendants’ request for a curative instruction noti ng that the jury “can disregard his opinion.”

Citing, O’Dowd v Linehan , 385 Mich 491; 189 NW2d 333 (1971), Ushe and Reliable argue that it was error to allow an accident reconstruction exp ert to testify as to the parties’ fault. However, O’Dowd has been subsequently clarified.

Waste Management argues that prejudice resulted because the ac cident reconstructionist improperly testified in such a way so as to f ix fault or identify who was negligent. We disagree.

Waste Management relies primarily on O’Dowd v Linehan, 385 Mich 491, 189 NW2d 333 (1971). We first note that O’Dowd was decided before the adoption of MRE 704, which states that “[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Moreover, O’Dowd was one of the early cases dealing with accident reconstruction testimony and, as shown by the concurrence by Justice Williams, there was concern about th e reliability and method of the expert in that case. The crucial issue in O’Dowd was which of two cars was in the wrong lane when the collision occurred, id. at 510, 189 NW2d 333, and the expert’s attempt to describe the positions of the cars and his determination which driver had been in the wrong lane was what the Court viewed to be an attempt to “fi x the blame” for the accident. Id. at 513, 189 NW 2d 333. Such testimony as to accident causation has become routine since the adoption of MRE 704 and we do not believe that O’Dowd should be read to bar an accident reconstructionist from testifying about what and wh ose actions caused the accident. See Ruddock v Lodise, 413 Mich 499; 320 NW2d 663 (1982) (expert testimony that the trial court improperly concluded, relying on O’Dowd, should-15- have been excluded because it embraced the ultimate issue to be decided by the jury was permissible under MRE 704 where the testimony could ai d the jury in determining whether the defendant failed to maintain the road i n a reasonably safe condition); see also Portelli v IR Constr Products Co, Inc, 218 Mich App 591, 602, 554 NW 2d 591 (1996) (“Plaintiff’s expert found fault . . .”). Accordingly, the trial court did not abuse its discretion by permitting the accident reconstructionists to opine as to fault. [ Freed v Salas , 286 Mich App 300, 337– 338; 780 NW2d 844 (2009).]

The jury’s verdict was not against the great weight of the evi dence, was not the result of improper instructions, and was not the result of inappropriate expert testimony.

V. INSTRUCTIONS ON COMPARATIVE FAULT RELATIVE TO PLAINTIFF’S DAMAGES

Ushe and Reliable argue that the jury verdict form and the ins tructions unduly emphasized that plaintiff’s damages would be reduced by his com parative fault. This issue is unpreserved. “To preserve an instructional issue for appeal, aparty must request the instruction before instructions are given and must object on the record bef ore the jury retires to deliberate.” Heaton v Benton Const Co , 286 Mich App 528, 537; 780 NW2d 618 (2009). “The failure to timely and specifically object pre cludes appellate review absen t manifest injustice.” Id.

Ushe and Reliable do not claim that there was an inaccurate st atement of law; instead, they argue that the cumulative nature of the instructions and t he verdict form unduly emphasized the issue of comparative fault and the resultant effect on a po ssible jury award. “[E]rror may result where the instructions to the jury are unnecessarily rep etitive and argumentative.” Thon v Saginaw Paint Mfg Co , 120 Mich App 745, 748; 327 NW2d 551 (1982). The Thon Court cited Mack v Precast Industries, Inc, 369 Mich 439; 120 NW2d 225 (1963), wherein the trial court instructed the jury 16 times that the plaintiff would be preclu ded from recovery if her decedent were guilty of contributory negligence, “however slight.” The repetitious instruction was erroneous, not simply because it was repeated so frequently, bu t because the language “however slight” unduly emphasized the plaintiff’s contributory negligen ce as it related to the defendants’ negligence. Here, the instructio ns were legally correct and in keeping with the standard instructions. Moreove r, “[j]ury instructions should be reviewe d in their entirety, not extracted piecemeal to establish error in isolated portions.” Bachman v Swan Harbour Ass’n , 252 Mich App 400, 424; 653 NW2d 415 (2002). Although U she and Reliable make it appear as though the trial court unnecessarily repeated comparative negligence instr uctions, it is clear upon reviewing the record that these instructions were properly given in light of the complexity of trial and the fact that there were multiple defendants and multiple theories of liability. Finally, even when there is instructional error, reversal is not warranted “if, on balance, the theories of the parties and the applicable law were adequately and fairly presented to the jury.” Murdock v Higgins
, 454 Mich 46, 59; 559 NW2d 639 (1997).

We decline Ushe and Reliable’s request to find the standard in structions prejudicial as a matter of law because “the jury does not need the information i mparted” where “the effect of a jury’s comparative negligence finding is implemented by the tri al judge, not the jury.” Although jury instructions do not carry the force of law, Shinholster v Annapolis Hosp , 255 Mich App 339,-16- 350 n 8; 660 NW2d 361 (2003), Ushe and Reliable seem to claim that the trial court should have sua sponte invalidated the stand ard instructions. This novel a rgument was not raised in the trial
court.

VI. INSTRUCTIONS ON MI TIGATION, EGGSHELL PLAINTIFFS, AND AGGRA VATION OF PRE-EXISTING CONDITIONS

Ushe and Reliable first argue that the trial court erred when it refused to instruct the jury on plaintiff’s failure to mitigate damages. We disagree.

M Civ JI 53.05 provides:

A person has a duty to use ordinary care to minimize his or herdamages after [he or she / his or her property] has been [injured / damaged]. It is for you to decide whether plaintiff failed to use such ordinary care and, if so, whether any damage resulted from such failure. You must not compensate the plainti ff for any portion of [his / her] damages which res ulted from [his / her] failure to use such care. [M Civ JI 53.05 Mitigation of Damages--Failure to Exercise Ordinar y Care.]

The trial court did not abuse it s discretion when it refused to give the mitigation instruction where there was no record support for such an instruction. Pla intiff’s orthopedic surgeon, Dr. Vaidya, testified that plaintiff was attempting to do what was asked of him. Plaintiff attended his visits and it was not as though “he didn’t show up.” Vaidya ex plained that trauma can take three to five years to recover from, but that plaintiff did not seem to be making any progress and “it’s probably not going to improve dramatically, maybe a little bit. ” Again, it was not for lack of trying – “He seems to try very hard.” Geffrard testified that plaintiff suffered from depression, which resulted in “difficulty applying himself in therapy. He was difficult to talk to so he didn’t listen real well in terms of phys ician instruction because he d idn’t feel there was hope.” However, Geffrard testified th at it was not as though plaintiff was non-compliant or just did not want to apply himself. The fact was that he was in significant pain. Plaintiff did not intentionally block his recovery, nor did he exaggerate his sym ptoms. He appeared to be “trying as best he could.” The trial cou rt did not err in declining to give the requested instruction.

Ushe and Reliable next argue that the trial court erred in giv ing the so-called “eggshell plaintiff” instruction found in M Civ JI 50.10, as well as the measure of damages found in M Civ JI 50.01 and the aggravation of pre-existing conditions in M Ci v JI 50.04. However, the record supports the instruction.

Geffrard testified that plain tiff was not unusually susceptibl e to the syndesmosis injury because of his weight in the context of the mechanism of plaint iff’s original injury. At trial, defendants implied that plaintiff’s recovery was hampered by hi s excessive weight. Plaintiff’s attorney responded by presenting testimony that plaintiff’s siz e had nothing to do with it. The physicians agreed that plaintiff’s problems all stemmed from, o r were exacerbated by, the accident. Vaidya acknowledged that plaintiff had previous comp laints of back pain but plaintiff was not disabled at the time and did not miss work. In spite o f his prior complaints, plaintiff never had back surgery and appeared to be able to continue to w ork. Plaintiff’s poor prognosis could occur in someone who was not obese. Geffrard testified that plaintiff’s recovery was also-17- hampered by the progression of his degenerative back problems a nd his gait disturbance, which caused problems with other joints such as his hips. He also ha d issues with his shoulder. The rotator cuff injury was either caused by the accident or a resu lt of the accident. All of these issues contributed to plaintiff’s lack of mobility. Therefore, contrary to Ushe and Reliable’s claims, there was record evidence to support plaintiff’s theori es of susceptibility to injury, aggravation of pre-existing injury, and indivisible damages. A gain, other than cross-examining plaintiff’s witnesses, defendant s presented no medical testimon y to refute the extent and nature of plaintiff’s injuries.

VII. JURY VERDICT FORM

Ushe and Reliable argue that listing plaintiff’s contested inj uries as conceded on the verdict form and in the jury in structions unduly and prejudicia lly influenced the verdict. We disagree.

The verdict form provided:

NON-ECONOMIC LOSS

11. What is the total amount of Holt’s damages for past non-ec onomic loss for injuries to his right ankle and leg, left shoulder, lu mbar disc herniation, four surgeries, trauma tic brain injury, chronic pai n, scars, physical pain and suffering, mental anguish, etc., from the dat e he was injured to the present?

***

12. If you find that Holt will sustain damages in the future o f noneconomic loss for injuries to his right ankle and leg, left sho ulder, lumbar disc herniation, four surgeries , traumatic brain injury, chroni c pain, scars, physical pain and suffering, ment al anguish, etc., give the tot al amount for each year in which he will sustain damages.

Once again Ushe and Reliable never objected to any of the fore going instructions. In fact, at trial Ushe and Reliable indicated that they had review ed plaintiff’s proposed verdict form and “[t]here’s going to be some objections to some of the verbi age within there that we need to discuss and the court will need to rule on in terms of the verd ict form,” but there is no discussion beyond that. Citing to a Nebraska case, Nguyen v Rezac , 256 Neb 458; 590 NW2d 375 (1999), Ushe and Reliable argue that the verdict form was misleading an d confusing because the form makes it appear as though plaintiff’s injuries were conceded wh en, in fact, they were hotly contested. However, there is nothing objectionable about the v erdict form, which was based on the model instructions in M Ci v JI 50.21. Contrary to Ushe andReliable’s assertions, the verdict form did not indicate that plainti ff’s injuries were conceded.

VIII. CUMULATIVE ERROR-18- Finally, although Ushe and Reliable indicate that the cumulati ve error at trial mandates reversal, 1 their real claim is that plaint iff’s counsel’s behavior depriv ed them of a fair trial.

When reviewing an appeal asserting improper conduct of an attor ney, the appellate court should first det ermine whether or not the claim ed error was in fact error, and, if so, whether it was harmless. If the claimed erro r was not harmless, the court must then ask if the error was properly preserved by objection and request for instruction or motion for mistrial. If the error is so preserved, then there is a right to appellate review; if not, the court must st ill make one further inquiry. It must decide whether a new trial should nevertheless be ordered because what occurred may have caused the result or played too large a part and may have denied a party a fair trial. If the court cannot say that the result was not affected, then a new trial may be granted. Tainted verdicts nee d not be allowed to stand simply because a lawyer or judge or both failed to protec t the interests of the prejudiced party by timely action. [ Reetz v Kinsman Marine Transit Co, 416 Mich 97, 102-103; 330 NW2d 638 (1982) (footnotes omitted).]

“An attorney’s comments usually w ill not be cause for reversal unless they indicate a deliberate course of conduct aimed at preventing a fair and impartial tria l.” Hunt v Freeman , 217 Mich App 92, 95; 550 NW2d 817 (1996). “Reversal is required only wh ere the prejudicial statements of an attorney reflect a studied purpose to inflame or prejudic e a jury or deflect the jury’s attention from the issues involved.” Id . Stated differently, “[r]eversa l is required only where the prejudicial statements reveal a deliberate attempt to inflame o r otherwise prejudice the jury, or to deflect the jury’s attention from the issues involved.” Zaremba Equip, Inc v Harco Nat Ins Co
, 302 Mich App 7, 21; 837 NW2d 686 (2013).

In arguing that plaintiff’s counsel’s behavior deprived them o f a fair trial, Ushe and Reliable point to this Court’s decision in Badalamenti v William Beaumont Hosp-Troy, 237 Mich App 278; 602 NW2d 854 (1999). In that case, we concluded that the plaintiff’s attorney’s behavior at trial was “truly egregious” and “far excee[ed] perm issible bounds.” Id. at 289. The attorney “completely tainted the proceedings” by repeatedly and without basis in fact accusing the witnesses of engaging in conspiracy and collusion, and fabr icating evidence. Id. at 290. He repeatedly belittled the witnesses and sugge sted that they supp ressed and destroyed evidence. Id. at 291. The attorney even accused one of the defendants of abandoning the plaintiff to engage in a sexual tryst with a nurse, wh ile emphasizing the defendant’s corporate power, and improperly appealing to the jurors’ sel f-interest as taxpayers. Id. We also noted the trial court’s failure to properly restrain the attorney f rom behaving in such a manner. Id. at 293.

1 “In order for cumulative evidentiary error to mandate reversal , consequential errors must result in substantial prejudice that de nied the aggrieved party a fair trial.” Lewis v LeGrow, 258 Mich App 175, 200; 670 NW2d 675 (2003). “[A]ctual errors must combi ne to cause substantial prejudice to the aggrieved party so that failing to reverse wou ld deny the party substantial justice.” Id. at 201-19- Plaintiff’s attorney’s conduct in this case is far different f rom what occurred in Badalamenti . As discussed at length above, counsel question ed witnesses r egarding the notice of non-party fault and the indemnification agreement as a means of attacking credibility, not in an effort to show that “Reliable and CPG had nefariously colluded against Holt” as defendants argue. While Ushe and Reliable complain that they never called plaintiff or any other witness a “liar,” they did accuse plaintiff of purposefully lying about h is health in the years leading up to the accident. Counsel did nothing improper by arguing that CPG ’s accident reconstructionist was not fully credible because s he did not consider Ushe’s acci dents when renderi ng her opinion. Nor did counsel “launch a tirade” against the forensic accounti ng expert who used average trucking information when formulating his opinion; instead, counsel argued that, in light of evidence that plaintiff was bui lding a fleet, plaintiff should not have been considered an average trucker. There was nothing wrong with counsel arguing that def endants’ fat defense was reprehensible.

There was no effort to divert t he jury’s attention from the ac tual merits of plaintiff’s case. In fact, a review of the record as a whole reveals that counsel ’s comments were supported by the facts elicited at trial. None of counsel’s “objections, speech es, comments, and arguments qualify as inflammatory, extreme, or deliberately misleading. Zaremba , 302 Mich App at 22.

Finally, Ushe and Reliable seem to imply that counsel’s behavi or was especially egregious where Ushe had “language impediments which prevented him from understanding the questions being asked of him at trial.” MCR 1.111(B)(1) provid es:
If a person requests a foreign language interpreter and the court determines such services are necessary for the person to meaningfully participa te in the case or court proceeding, or on the court's own determination that fore ign language interpreter services are necessary for a person to meaningfully participate in the case or court proceeding, the court shall appoint a foreign lan guage interpreter for that person if the person is a witness testifying in a civil or criminal case or court proceeding or is a party.

However, neither Ushe nor his attorney nor counsel for CPG ever requested an interpreter and the record does not support any inability of Ushe to understand and answer the questions posed to him.

Affirmed. As the prevailing party, plaintiff may tax costs. MCR 7.219.

/s/ Michael J. Talbot /s/ Kirsten Frank Kelly /s/ Stephen L. Borrello