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### STATE OF MICHIGAN

COURT OF APPEALS

SANDRA MCCARTHY,

Plaintiff-Appellant, UNPUBLISHED August 11, 2016

v No. 326715
St. Clair Circuit Court DEBORAH LIPPS-CARBONE, LC No. 2014-000131-NI

Defendant-Appellee.

Before: R IORDAN , P.J., and S AAD and M. J. K ELLY , JJ.

M. J. K ELLY

, J. ( dissenting ).

After having examined the briefs and evidentiary support submi tted by the parties, I conclude that the trial court erred when it granted the motion for summary disposition by defendant, Deborah Lipps-Carbone . For that reason, I respectfu lly dissent.

The trial court considered the evidence submitted by the parti es and ultimately dismissed the claims by plaintiff, Sa ndra McCarthy, under MCR 2.116(C)(10 ). This Court’s review of a decision on a motion for summary disposition is de novo. Barnard Mfg Co, Inc v Gates Performance Eng, Inc , 285 Mich App 362, 369; 775 NW2d 618 (2009). The fact that ou r review is de novo, however, does not give this Court authority to expa nd the record by considering evidence that was not properly before the trial court. Id. at 380-381. Rather, this Court must review the motion for summary disposition in the same way that the trial court was obligated to
review it. Bronson Methodist Hosp v Auto-Owners Ins Co , 295 Mich App 431, 440; 814 NW2d 670 (2012).

The trial court must first determine whether the moving party properly asserted a ground for relief by specifically identifying “the issues as to which the moving party believes there is no genuine issue as to any material fact.” MCR 2.116(G)(4). The level of specificity is that which would place the nonmoving party on notice of the need to respon d. Barnard Mfg , 285 Mich App at 369, citing Quinto v Cross & Peters Co , 451 Mich 358, 370; 547 NW2d 314 (1996). If the moving party fails to identify its ground for relief with the r equisite specifici ty, the nonmoving party cannot be faulted for fa iling to respond, and the trial c ourt should deny the motion. Lowrey v LMPS & LMPJ, Inc , ___ Mich App ___, ___; ___ NW2d ___ (2015) (Docket No. 323049 ); slip op at 3.-2- If the trial court determines t hat the moving party adequately asserted his or her motion under MCR 2.116(C)(10), it must next examine whether the moving party supported its motion with evidence, as required by MCR 2.116(G)(3). When the moving party fails to properly support its motion with evidence establishing that there was no genuine issue of fact, the burden of production does not shift to t he nonmoving party and the tri al court must deny the motion. Grandberry-Lovette v Garascia , 303 Mich App 566, 581; 844 NW2d 178 (2014). If the trial court determines that the moving party adequately asserted and supported his or her motion, it must then examine all the evidence properly cited by the partie s and determine whether the evidence establishes a question of fact for the fact-finder. I n doing so, the trial court is not permitted to assess the weight or credibility of the evidence; it must, instead, view the evidence in the light most favorable to the nonmoving party. Skinner v Square D Co , 445 Mich 153, 161- 162; 516 NW2d 475 (1994); Maiden v Rozwood , 461 Mich 109, 120; 597 NW2d 817 (1999). The trial court should only grant a motion under MCR 2.116(C)(1 0) when the evidence properly before the trial court—even when viewed in the light most favor able to the nonmoving party— shows that there is no genuine issue as to any material fact an d the moving party is entitled to judgment as a matter of law. Maiden , 461 Mich at 120.

In this case, Lipps-Carbone moved for summary disposition, in relevant part, on the ground that the undisputed eviden ce demonstrated that the autom obile accident did not cause McCarthy any injuries. Lipps-Car bone identified the issues as to which she believed that there
was no material fact with the re quisite specificity; however, s he did not adequately support her motion on this ground.

Lipps-Carbone relied on medical reports made by McCarthy’s tre ating physicians, which established that McCarthy had significant preexisting problems with her neck and back. Further, while there was evidence that the images taken of McCarthy’s ne ck and back immediately after the accident did not show any significant changes to the struct ures in her neck and back, the reports concerning these images standing alone did not establis h that the accident did not cause any injury. In order to establish this point, Lipps-Carbone wo uld have had to present testimony that any injury to McCarthy’s neck or back that might have been caused by the accident would have shown up on the images. But she did not present any admis sible evidence to establish this point. She did rely on a report by a so-called “independent me dical examiner,” but that report was not plausibly admissible, see Barnard Mfg , 285 Mich App at 373-374, because it amounted to hearsay within hearsay that was not subject to an exception. See MRE 801; MRE 802; MRE 803; MRE 804; see also Attorney General v John A Biewer Co, Inc , 140 Mich App 1, 17; 363 NW2d 712 (1985) (noting that documents that are prepared in pre paration for litigation are not inherently trustworthy and, for that reason, are generally inad missible under the hearsay exceptions).

Although she did not clearly raise this issue in her motion fo r summary disposition, one might argue that Lipps-Carbone did not have to present evidence to negate the proposition that the accident caused an aggravation to McCarthy’s back and neck conditions because she could properly support her motion by a sserting that McCarthy would be unable to prove causation at trial. Our Supreme Court has stated that the moving party may meet its burden of production on a motion for summary disposition under MCR 2.116(C)(10) by demo nstrating to the trial court that the nonmoving party’s evidence is insufficient to establis h an essential element of his or her
claim. See Quinto , 451 Mich at 362, quoting Jus tice Brennan’s dissent in Celotex v Catrett , 477-3- US 317, 331; 106 S Ct 2548; 91 L Ed 2d 265 (1986). 1 However, as this Court has recognized, the moving party cannot support a motion on this ground by asse rting his or her mere belief that the nonmoving party will be unable to prove an element at trial

. Granberry-Lovette , 303 Mich App at 581 n 3; see also Celotex , 477 US at 332 (B RENNAN

, J., dissenting ) (stating that a conclusory assertion that the nonmoving party has no evidence i s insufficient to meet the burden of production because such a burden “is no burden at all and wo uld simply permit summary judgment procedure to be converted into a tool for harassment”) . Instead, the moving party must

demonstrate that the nonmoving party does not have evidence to support the claim by examining all the evidence that is available to the nonmoving party and s howing that the evidence does not
establish an essential element of the nonmoving party’s claim:

[A]s the Court confirms, a party who moves for summary judgment on the ground that the nonmoving party has no evidence must affirmatively sho w the absence of evidence in the record. This may require the moving party to d epose the nonmoving party’s witnesses or to establish the inadequacy of t he documentary evidence. If there is literally no evidence in the record, the moving party may demonstrate this by reviewing for the court the admissions, int errogatories, and other exchanges between the parties that are in the record. Ei ther way, however, the moving party must affirmatively demonstrate that there is n o evidence in the record to support a judgment for the nonmoving party. [ Celotex , 477 US at 332 (B RENNAN

, J., dissenting ).]

Lipps-Carbone did not depose or otherwise address the potential testimony by the numerous medical professionals listed on McCarthy’s witness list; thus, she did not properly support her
motion on causation in this alternate manner. Id. at 332-333.

Because Lipps-Carbone did not properly support her motion for summary disposition on the ground that there was no evidence that the accident caused McCarthy to suffer an injury, the trial court erred when it granted Lipps-Carbone’s motion on tha t basis. Barnard Mfg , 285 Mich App at 370. Even setting aside the deficiencies in Lipps-Carbo ne’s motion, afte r reviewing the
record evidence I conclude that McCarthy presented and identifi ed evidence that, when viewed in the light most favorable to he r, established a question of f act on the issue of causation.

McCarthy cited numerous medical reports—which were plausibly a dmissible—to establish causation. In a report dated June 5, 2013, which was days after the accident at issue, McCarthy’s treating physician, Andres Munk, M.D., noted that Mc Carthy had been a restrained
driver in a rear-end automobile collision. He wrote that there were no acute changes shown on an x-ray, but that older MRI studies showed that she had some p roblems with her neck and lumbar spine; he then opined that McCarthy had suffered some ex acerbation of these preexisting
conditions: “IMPRESSION: Cervical strain with some exacerbation of discogenic of both cervical and lumbar spine.” In a report dated July 18, 2013, a nother physician at Munk’s

1 Our Supreme Court opined that J ustice Brennan’s recitation of the burden of production for summary disposition was “harmonized” with the majority’s recita tion of the law. See Quinto

, 451 Mich at 361 n 3.-4- practice, Giuseppe Paese, D.O., as sessed McCarthy with cervical radiculopathy and discogenic syndrome, cervical. And in a report dated October 25, 2013, Mu nk stated that he reviewed xrays and observed “discogenic ch anges and disc herniations” and stated that it was his impression that McCarthy had cervical radiculopathy and cervica l discogenic type pain. He then
stated that she should consider s urgical intervention to help w ith the neck pain. Considering these reports together and in the light most favorable to McCar thy, a reasonable fact-finder could
find that the accident exacerbat ed McCarthy’s preexisting condi tions, which caused her increased pain, and either cause d her to need surgery to correc t the problems or hastened the need for surgical intervention. See Wilkinson v Lee , 463 Mich 388, 395; 617 NW2d 305 (2000). There was also record evidence that the purported aggravation a ffected McCarthy’s general ability to lead her normal life. See McCormick v Carrier , 487 Mich 180; 795 NW2d 517 (2010). As such, Lipps-Carbone failed t o establish any grounds for summ ary disposition.

I would reverse and remand for further proceedings.

/s/ Michael J. Kelly