If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

THELMA PEEPLES,

Plaintiff-Appellant,

UNPUBLISHED

April 18, 2019

v No. 341599

Wayne Circuit Court

MICHAEL ANGELO CANFIELD, LC No. 16-005496-NF

Defendant-Appellee.

Before: O’BRIEN, P.J., and JANSEN and RONAYNE KRAUSE, JJ.

PER CURIAM.

In this automobile negligence action, plaintiff appeals as of right the trial court’s order 

granting summary disposition to defendant under MCR 2.116(C)(10). We affirm.

On September 5, 2013, plaintiff was traveling west on Eight Mile Road in Detroit when 

defendant—who was traveling north on Hubbell Avenue—disregarded the traffic signal at Eight 

Mile Road and collided with plaintiff’s car. The accident was not severe enough to cause the 

airbags in plaintiff’s car to deploy. After the accident, plaintiff was taken to Sinai Grace 

Hospital and was released that same evening. On April 28, 2016, plaintiff filed a complaint 

against defendant.

During discovery, it was revealed that plaintiff has a history of back pain and migraines, 

dating back to before the accident. After the accident, plaintiff complained of pain in her neck, 

back, right arm, shoulder, and jaw. Plaintiff sought treatment with pain-management specialists,

who gave her injections to help relieve the pain. Plaintiff’s dentist, Dr. Timothy Kosinski,

documented that plaintiff had developed a “clicking” in her jaw after the accident. On June 27, 

2017—over 31⁄2 years after the accident and over one year after plaintiff filed her complaint—

plaintiff was diagnosed with herniated discs in her neck. At her deposition, plaintiff testified that 

her injuries prevented her from engaging in activities that she had enjoyed before the accident, 

like cooking, gardening, dancing, and cleaning. Yet, according to independent medical 

examinations of plaintiff, her injuries from the car accident should have required a maximum of 

three to four months of physical therapy, and her dental problems were the result of other dental 

issues unrelated to the accident.
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Following discovery, defendant moved for summary disposition under MCR 

2.116(C)(10), arguing that the evidence did not present a genuine issue of material fact whether 

plaintiff sustained a serious impairment of body function. After a hearing, the trial court granted

defendant’s motion. Plaintiff filed a motion for reconsideration, asserting for the first time that 

defendant failed to support his motion for summary disposition with admissible evidence. 

Plaintiff also presented, again for the first time, an affidavit from Dr. Leon Morris, which stated 

that plaintiff “sustained objectively manifested injuries” from the accident, including her back 

pain, neck pain, shoulder pain, migraines, and dislocation of her jaw. Plaintiff believed that the 

affidavit created a genuine issue of material fact whether plaintiff suffered a serious impairment 

of a body function. The trial court rejected plaintiff’s argument and denied her motion.

On appeal, plaintiff contends that she demonstrated a genuine issue of material fact 

whether she suffered a serious impairment of body function. We disagree.

An appellate court reviews de novo a trial court’s grant of summary disposition. White v 

Taylor Distrib Co, Inc, 289 Mich App 731, 734; 798 NW2d 354 (2010). Defendant moved for 

summary disposition under MCR 2.116(C)(10). In Maiden v Rozwood, 461 Mich 109, 120; 597 

NW2d 817 (1999), our Supreme Court explained the process for reviewing a motion filed under 

MCR 2.116(C)(10) as follow:

A motion under MCR 2.116(C)(10) tests the factual sufficiency of the 

complaint. In evaluating a motion for summary disposition brought under this 

subsection, a trial court considers affidavits, pleadings, depositions, admissions, 

and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most 

favorable to the party opposing the motion. Where the proffered evidence fails to 

establish a genuine issue regarding any material fact, the moving party is entitled 

to judgment as a matter of law.

A genuine issue of material fact exists when, after viewing the evidence in a light most favorable 

to the nonmoving party, reasonable minds could differ on the issue. Allison v AEW Capital Mgt, 

LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).

Under MCL 500.3135(1), an injured person may recover damages resulting from 

another’s ownership, maintenance, or use of a motor vehicle if that injured person suffered a 

“serious impairment of body function.” A court may determine whether a person suffered a 

serious impairment of body function as a matter of law if (1) “there is no factual dispute 

concerning the nature and extent of the person’s injuries,” or if (2) “there is a factual dispute 

concerning the nature and extent of the person’s injuries, but the dispute is not material to the 

determination whether the person has suffered a serious impairment of body function . . . .” 

MCL 500.3135(2)(a)(i) and (ii). After that threshold is met, MCL 500.3135(5) provides three 

“prongs” that must be shown in order to establish a serious impairment of body function:

(1) an objectively manifested impairment (observable or perceivable from actual 

symptoms or conditions) (2) of an important body function (a body function of 

value, significance, or consequence to the injured person) that (3) affects the 

person’s general ability to lead his or her normal life (influences some of the 
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plaintiff’s capacity to live in his or her normal manner of living). [McCormick v 

Carrier, 487 Mich 180, 195; 795 NW2d 517 (2010).]

Under the first McCormick prong, an objectively manifested impairment is “an 

impairment that is evidenced by actual symptoms or conditions that someone other than the 

injured person would observe or perceive as impairing a body function.” Id. at 196. The focus 

“is not on the injuries themselves, but how the injuries affected a particular body function.” Id. 

at 197. “[P]ain and suffering alone” is insufficient to show a serious impairment of body 

function, so a plaintiff must “introduce evidence establishing that there is a physical basis for 

their subjective complaints of pain and suffering[.]” Id. at 197-198. Doing so generally, but not 

always, requires medical testimony. Id. at 198.

A plaintiff seeking damages for a serious impairment of body function must also prove 

that the defendant’s conduct was the proximate cause of his or her injuries. Patrick v Turkelson, 

322 Mich App 595, 616-617; 913 NW2d 369 (2018). The plaintiff must prove both that the 

plaintiff’s injuries would not have occurred but for the defendant’s conduct and that the injuries 

were a foreseeable result of that conduct. Id. at 617. “Although causation cannot be established 

by mere speculation, a plaintiff’s evidence of causation is sufficient at the summary disposition 

stage to create a question of fact for the jury if it establishes a logical sequence of cause and 

effect, notwithstanding the existence of other plausible theories, although other plausible theories 

may also have evidentiary support[.]” Id. (quotation marks and citations omitted).

As a preliminary manner, defendant does not dispute the “nature and extent” of plaintiff’s 

injuries, so the initial threshold is met. Defendant only contends that the injuries that plaintiff 

allegedly sustained do not meet the test outlined in MCL 500.3135(5) and McCormick.

After reviewing the record, we conclude that plaintiff did not establish a genuine issue of 

material fact whether she suffered an objectively manifested impairment, i.e., the first 

McCormick prong. The evidence that plaintiff relied on either fails to show an objectively 

manifested impairment or fails to demonstrate causation. The pain-management specialists’

reports documented that plaintiff felt constant pain in her neck, back, and right shoulder. An 

assessment of plaintiff’s condition diagnosed that plaintiff felt back pain, neck pain, cervical 

radicular pain, and myofascial muscle pain. The reports do not necessarily describe a physical 

cause of plaintiff’s pain that was directly attributable to the accident. The reports began around 

nine months after the accident. Because of plaintiff’s history of back pain, that delay indicates 

that there may be another reason for plaintiff’s symptoms, especially in light of the independent 

medical report which documented that plaintiff’s injuries from the accident should not have 

required more than three or four months of physical therapy treatment. Those reports do not 

document that plaintiff’s pain has a “physical basis” that is explicitly connected to the accident. 

McCormick, 487 Mich at 197-198. While plaintiff may experience pain which impairs certain 

body functions, that pain does not, by itself, establish an objectively manifested impairment, 

especially in the absence of a concrete medical diagnosis or evidence tying any of plaintiff’s 

injuries to the accident. Id. As for plaintiff’s jaw pain, although the letter from Dr. Kosinski 

documented the pain, it did not describe a medical test performed on plaintiff or an objective 

diagnosis for plaintiff’s pain. Thus, that letter also fails to demonstrate an objective impairment.
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The only evidence that plaintiff presented that could have established an objectively 

manifested impairment was the orthopedic report that plaintiff’s C3 and C4 vertebrae were 

herniated. Yet that report was not prepared until over 31⁄2 years after the accident and does not 

establish that the impairment was due to the accident. Plaintiff merely asserts that those 

herniated vertebrae were the result of the accident, but does not provide any evidence in support 

of that contention. In light of the delay between the accident and the diagnosis, as well as 

plaintiff’s long history of back problems, no reasonable juror could conclude that plaintiff 

established a sequence of cause and effect showing that those herniated discs were the result of 

the accident. See Patrick, 322 Mich App at 617. That the herniated discs were not caused by the 

accident is supported by the independent medical report stating that plaintiff’s injuries after the 

accident should not have required more than three or four months of physical therapy. Thus, 

because plaintiff either failed to establish an objective impairment or failed to demonstrate 

causation, she failed to establish a genuine issue of material fact whether she suffered an 

objectively manifested impairment as a result of the accident, and the trial court correctly granted 

defendant’s motion for summary disposition.1

Plaintiff alternatively contends that the trial court erred in granting defendant’s motion 

because defendant failed to meet his initial burden of proof. We disagree.

Plaintiff first raised this issue in her motion for reconsideration. An issue that is first 

presented to the trial court in a motion for reconsideration is not properly preserved. Vushaj v 

Farm Bureau Gen Ins Co of Mich, 284 Mich App 513, 519; 773 NW2d 758 (2009). This Court 

reviews unpreserved issues for plain error. Demski v Petlick, 309 Mich App 404, 426-427; 873 

NW2d 596 (2015). “To avoid forfeiture under the plain error rule, three requirements must be 

met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the 

plain error affected substantial rights.” Id. at 427 (quotation marks and citation omitted). An 

error affects a party’s substantial rights if it affected the outcome of the proceedings. Lawrence v 

Mich Unemployment Ins Agency, 320 Mich App 422, 443; 906 NW2d 482 (2017).

When a party presents a motion for summary disposition under MCR 2.116(C)(10), that 

party “has the initial burden of supporting its position by affidavits, depositions, admissions, or 

other documentary evidence.” Quinto v Cross and Peters Co, 451 Mich 358, 362; 547 NW2d 

314 (1996). “The burden then shifts to the opposing party to establish that a genuine issue of 

disputed fact exists.” Id.; see also MCR 2.116(G)(4). If the burden of proof at trial on a 

dispositive issue rests on the nonmoving party, the nonmoving party must set forth specific facts 

showing that a genuine issue of material fact exists. MCR 2.116(G)(4); Quinto, 451 Mich at 

362. “[W]hile a motion for summary disposition must be supported by admissible evidence, that 

evidence ‘does not have to be in admissible form.’ ” Latits v Phillips, 298 Mich App 109, 113; 

826 NW2d 190 (2012), quoting Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 

 1 Having concluded that the trial court properly granted summary disposition because plaintiff 

failed to establish a question of material fact as to the first McCormack prong, we need not 

address the trial court’s alternative reasoning that plaintiff failed to establish a question of fact as 

to the third McCormack prong.
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285 Mich App 362, 373; 775 NW2d 618 (2009). A court may consider evidence in a motion for 

summary disposition as long as the substance of the proposed evidence is plausibly admissible at 

trial. Barnard, 285 Mich App at 373-374.

In her motion for reconsideration, plaintiff contended that certain medical reports that 

defendant provided in support of his motion for summary disposition were inadmissible hearsay. 

On appeal, plaintiff continues to make this argument. We conclude that plaintiff’s argument fails 

because she has not demonstrated any prejudice that resulted from those reports being 

considered.

First, the substance of the reports was plausibly admissible at trial because the doctors 

who authored the reports could have testified to plaintiff’s medical conditions based on personal 

knowledge. See Latits, 298 Mich App at 113 (holding that police reports were admissible to 

support a motion for summary disposition because, even though they contained hearsay, the 

police officers could have testified to the substance of the reports at trial). Also, as defendant 

asserts on appeal, he likely could have obtained affidavits from each doctor that prepared a report

if this issue was properly raised by plaintiff. In light of this possibility, it appears that any error 

was due to plaintiff’s decision not to contest the reports sooner, not an error by the trial court. 

Finally, defendant provided documentary evidence other than the disputed reports to support his 

motion for summary disposition, including the traffic crash report and plaintiff’s deposition 

testimony. Based on the foregoing, we conclude that plaintiff has failed to demonstrate that the 

trial court’s considering of the disputed reports amounted to plain error affecting substantial 

rights.

In her final argument on appeal, plaintiff contends that the trial court abused its discretion 

by denying plaintiff’s motion for reconsideration because Dr. Morris’s affidavit created a 

genuine issue of material fact regarding a serious impairment of body function. We disagree.

“This Court reviews for an abuse of discretion a trial court’s ruling on a motion for 

reconsideration.” Sanders v McLaren-Macomb, 323 Mich App 254, 264; 916 NW2d 305 (2018). 

“[A]n abuse of discretion occurs only when the trial court’s decision is outside the range of 

reasonable and principled outcomes.” Id. (quotation marks and citation omitted).

A party moving for reconsideration is required to “demonstrate a palpable error by which 

the court and the parties have been misled and show that a different disposition of the motion 

must result from correction of the error.” MCR 2.119(F)(3). A trial court is afforded 

considerable discretion when deciding whether to grant reconsideration. Sanders, 323 Mich App 

at 264. Thus, a trial court can “decline to consider new legal theories or evidence that could have 

been presented when the motion was initially decided,” but can also give the party moving for 

reconsideration a “second chance” even if the motion presents nothing new. Yoost v Caspari, 

295 Mich App 209, 220; 813 NW2d 783 (2012). The mere fact that an appellate court would 

have ruled on the motion differently is not sufficient to reverse the trial court’s decision. Taylor 

v Mobley, 279 Mich App 309, 315; 760 NW2d 234 (2008). 

Plaintiff does not explain why she could not have provided Dr. Morris’s affidavit before 

the trial court ruled on defendant’s motion for summary disposition. This is especially troubling 

because everything in the affidavit relates to plaintiff’s medical conditions that were discussed 
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during discovery, and Dr. Morris had been plaintiff’s physician for several years. The affidavit 

merely restates these conditions, and then states that, “within a reasonable degree of medical 

certainly,” they are related to plaintiff’s accident. As the trial court has discretion to decline to 

consider evidence that could have been presented when defendant’s motion for summary 

disposition was initially decided, Yoost, 295 Mich App at 220, we cannot conclude that the trial 

court abused its discretion when it denied plaintiff’s motion for reconsideration.

Even considering the contents of Dr. Morris’s affidavit, we agree with the trial court that 

the affidavit did not present any new evidence that the trial court had not already considered. 

The affidavit states that plaintiff “sustained objectively manifested injuries including cervical 

radicular pain, lumbar radicular pain, migraines, dislocation of the temporomandibular joint, 

[and] shoulder radicular pain . . . .” Yet all of these “injuries”—with the exception of the 

dislocation of plaintiff’s jaw—are subjective complaints of pain, not objectively manifested 

injuries. More importantly, when the trial court granted defendant’s motion, it considered 

evidence that plaintiff experienced neck, back, and shoulder pain in the pain-management 

reports. The court also already considered that plaintiff had problems with her jaw as stated in 

the letter from Dr. Kosinski. In short, the affidavit did not describe any alleged objective 

impairment that the trial court had not already considered, so plaintiff failed to demonstrate 

palpable error, and the trial court did not abuse its discretion by denying plaintiff’s motion.

Affirmed.

/s/ Colleen A. O’Brien 

/s/ Kathleen Jansen