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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

MILDRED THOMAS,

Plaintiff-Appellee,

UNPUBLISHED

October 24, 2017

v No. 331486

Wayne Circuit Court

WOODWARD DETROIT CVS, LLC, doing 

business as CVS PHARMACY #8031,

LC No. 13-011919-NO

Defendant-Appellant.

Before: SHAPIRO, P.J., and HOEKSTRA and M. J. KELLY, JJ.

PER CURIAM.

Defendant appeals from a judgment entered after a jury verdict in this negligence action. 

We affirm the trial judge’s denial of defendant’s motion for judgement notwithstanding the 

verdict. We also affirm the trial judge’s denial of defendant’s motion for a new trial as to 

damages with the exception of those based upon past and future medical expenses. As to those 

elements of damage we remand for remittitur.

I. FACTS AND PROCEDURAL BACKGROUND

While shopping at defendant’s store, plaintiff asked for assistance with some folding 

metal chairs that were located on a top shelf. An employee attempted to manipulate that stack of 

chairs and they fell from the top shelf onto plaintiff’s head. Plaintiff sued defendant’s

corporation which, though it contested fault, did not contest that if the jury found its employee at 

fault, it would be liable under respondeat superior.

At trial, plaintiff presented evidence that she suffered a traumatic brain injury causing 

significant cognitive dysfunction, memory and concentration problems as well as headache, and 

cervical pain. She also presented evidence that these injuries disabled her from working. 

Defendant moved for a directed verdict, arguing that plaintiff’s claims sounded in premises 

liability rather than ordinary negligence and that the evidence established that the condition that 

caused plaintiff’s injury was open and obvious.

The trial court denied defendant’s motion. Thereafter, a jury found that defendant’s 

employee was negligent and awarded plaintiff $25,000 for past economic damages for medical 

expenses, $250,000 for past economic damages for loss of earnings, and $250,000 for past 
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noneconomic damages for pain and suffering. The jury also awarded plaintiff future economic 

damages for medical expenses of $2,068,000, future economic damages for lost earning capacity 

or wages of $806,000, and future noneconomic damages for pain and suffering of $1,217,000. 

Defendant subsequently filed a motion for judgment notwithstanding the verdict (JNOV), again 

repeating its argument that plaintiff’s claims sounded in premises liability rather than negligence. 

Defendants also filed a motion for a new trial or remittitur, arguing that the jury’s verdicts were 

grossly excessive, and were influenced by passion or prejudice.

The trial court denied defendant’s motions and entered judgment after having reduced the 

future damages to present value.1

 

II. DIRECTED VERDICT

Defendant contends that the trial court erred by denying its motion for a directed verdict 

in which it claimed that it had no duty to plaintiff based on the open and obvious danger 

doctrine. We agree with the trial court that this motion was properly denied on both procedural 

and substantive grounds.

2

The open and obvious danger doctrine does not apply to ordinary negligence claims. 

Laier v Kitchen, 266 Mich App 482, 490; 702 NW2d 199 (2005). Plaintiff’s complaint alleged 

ordinary negligence in the manner the store manager arranged and handled the stack of chairs,

and that as a result, they fell on plaintiff. In its motion for directed verdict and its JNOV motion, 

defendant argued that the claim was one of premises liability, not negligence, and so should be 

barred under the open and obvious danger doctrine.

As the trial court pointed out, the directed verdict motion was the first time defendant had 

argued this legal issue despite many opportunities to do so during the litigation. The court 

correctly noted that: (1) a motion for summary disposition on these grounds could have been 

filed but was no longer timely, (2) the issue of premises liability was not newly discovered based 

on the evidence presented at trial, (3) the issue was not raised in the “joint pre-trial order,” and as 

a result (4) plaintiff had no notice that the issue would be raised at trial and it would be 

prejudicial to plaintiff to open the issue after the close of plaintiff’s proofs.

 1 After reduction to present value, the amount of damages was: $510,384.97 for plaintiff’s future 

loss of future earnings, $1,300,968.67 for future medical expenses and $765,779.89 for future 

non-economic damages.

2 “This Court reviews de novo a trial court’s decision on a motion for a directed verdict.” Conlin 

v Upton, 313 Mich App 243, 254; 881 NW2d 511 (2015). “A party is entitled to a directed 

verdict if the evidence, when viewed in the light most favorable to the nonmoving party, fails to 

establish a claim as a matter of law.” Aroma Wines & Equip, Inc v Columbian Distribution 

Servs, Inc, 497 Mich 337, 345; 871 NW2d 136 (2015).
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We conclude that defendant waived any claim that the action did not sound in negligence. 

Early in the case, the trial court issued an order providing that “once a formal JFPO [Joint Final 

Pretrial Order] is filed, it supersedes previous pleadings and orders and controls the trial 

proceedings.” It further provided that the “JFPO shall contain . . . ‘a concise statement of 

Defendant’s defenses and cross-claims . . . including legal theories.’ ” A JFPO was presented to 

the court by the parties and it was entered as an order. Under the heading “Defendant’s Claims,”

defendant listed multiple defenses, but included no reference to premises liability or a defense 

that plaintiff’s injury was caused by an open and obvious condition. Given the court’s pre-trial

orders and the JFPO to which defense counsel stipulated, defendant waived this argument.

The trial court also properly ruled that even if it were to consider the merits of the 

directed verdict motion, it would fail as plaintiff’s claims arose out of the conduct of defendant’s 

employee who attempted to manipulate the chairs on the shelf and caused them to fall onto 

plaintiff. Plaintiff alleged that defendant’s employee was negligent in “reaching over Plaintiff as 

she bent to look at merchandise on a lower rack,” “failing to warn Plaintiff that Defendant’s 

employee would be reaching for merchandise on the top rack,” “failing to properly remove the 

merchandise from the top rack, thereby causing merchandise to fall,” and “failing to warn 

Plaintiff that merchandise was falling before Plaintiff was struck by said merchandise.” Plaintiff 

similarly testified at trial regarding the employee’s conduct in reaching over her, and plaintiff’s 

attorney argued in closing that defendant’s employee “negligently or carelessly . . . shuffled 

through some chairs.” Although there was also testimony regarding the height of the shelves and 

whether the chairs were stacked according to the corporate planner, there was no allegation or 

evidence that the chairs would have fallen absent the employee’s conduct in searching through 

them. The employee did not create a dangerous condition on the land because the chairs alone 

did not pose a danger. As plaintiff contends, the chairs became a danger when the employee 

began shuffling through them. Even defendant’s attorney argued in his motion for a directed

verdict that this case involved “a claim that the store employee somehow manipulated or 

somehow touched a chair in an unreasonably high position causing it to fall on [plaintiff’s] 

head.” Thus, although there was some evidence and argument at trial related to the condition of 

the shelves, the focus of plaintiff’s claims was that the employee was negligent in shuffling 

through the chairs causing them to fall on plaintiff. The trial court did not err by ruling that 

plaintiff’s claim sounded in ordinary negligence.

Defendant also contends that plaintiff failed to prove her claim of ordinary negligence. 

This issue was not, however, raised in defendant’s statement of the question involved on appeal, 

which focuses on the open and obvious doctrine. Therefore, it is not properly presented for this 

Court’s review. Henderson v Dep’t of Treasury, 307 Mich App 1, 30; 858 NW2d 733 (2014). 

Moreover, this claim was not raised in defendant’s motion for a directed verdict or motion for 

JNOV.3 “[A]ny challenge to the sufficiency of the evidence in a civil case is waived by a party’s 

failure to raise the issue in a timely motion at trial.” Shaw v Ecorse, 283 Mich App 1, 22; 770 

 3 Defendant did not raise the issue until it filed its reply to plaintiff’s response to the motion for 

JNOV.
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NW2d 31 (2009). In any event, there was ample testimony from which the jury could conclude 

that the manager did not exercise reasonable care.

III. EXCESSIVENESS OF JURY’S VERDICT

Defendant contends that the jury’s verdict was excessive and not supported by the record 

and requests either a new trial as to damages or an order of remittitur.4 We “review[] a trial 

court’s decision regarding a motion for remittitur or a new trial for an abuse of discretion.” 

Heaton v Benton Constr Co, 286 Mich App 528, 538; 780 NW2d 618 (2009). “An abuse of 

discretion occurs when a court chooses an outcome that is outside the range of principled 

outcomes.” Id.

MCR 2.611(A) provides, in relevant part:

(1) A new trial may be granted to all or some of the parties, on all or some 

of the issues, whenever their substantial rights are materially affected, for any of 

the following reasons:

* * *

(c) Excessive or inadequate damages appearing to have been influenced by 

passion or prejudice.

(d) A verdict clearly or grossly inadequate or excessive.

Under MCR 2.611(A)(1)(c)-(d), a new trial or remittitur may be granted “[w]hen a jury awards 

damages that appear excessive because of the influence of passion or prejudice.” Heaton, 286 

Mich App at 538. Alternatively, when the award is “clearly or grossly excessive” the influence 

of passion or prejudice need not necessarily be shown. In either case, “if the only error in the 

trial is the inadequacy or excessiveness of the verdict” the court may order remittitur. This is 

provided for in MCR 2.611(E)(1), which provides that in such a case “a trial court may offer the 

prevailing party an opportunity to consent to judgment in the highest amount the court finds is 

supported by the evidence.” Heaton, 286 Mich App at 538. If the prevailing party declines to do 

so despite a finding of clear excessiveness, the court must then order a new trial.

We begin by noting that relief based on the inadequacy or excessiveness of damages is 

rarely granted and 

[a]nalysis of this issue must start with the principle that the adequacy of 

the amount of the damages is generally a matter for the jury to decide. Moreover, 

 4 Defendant appears to suggest that it also seeks a judgment notwithstanding the verdict on the

grounds of excessive damages. The proper vehicle by which to claim excessive damages were 

awarded is a motion for new trial as to damages or remittitur. Regardless of how the motion is 

characterized, however, our ruling would remain the same.
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a verdict should not be set aside merely because the method the jury used to 

compute damages cannot be determined. This Court must view the evidence in 

the light most favorable to the nonmoving party. [Heaton, 286 Mich App at 538-

539 (citations omitted).]

In Gilbert v DaimlerChrysler Corp, 470 Mich 749; 685 NW2d 391 (2004), our Supreme 

Court stated:

“Excessive” is defined as “going beyond the usual, necessary, or proper

limit or degree; characterized by excess.” In the context of compensatory 

damages, the determination whether damages exceed the “necessary or proper 

limit” is no simple task. “[T]he authority to measure damages,” . . . “inheres in 

the jury’s role as trier of fact. Because the amount required to compensate a party 

for pain and suffering is imprecise, that calculation typically belongs to the jury. 

. . . . A reviewing court is therefore faced with the task of ensuring that a 

verdict is not “excessive” without concomitantly usurping the jury’s authority to 

determine the amount necessary to compensate an injured party. Given the 

impossibility of using a simple algorithm for this task, judicial review of 

compensatory awards must rely on the fundamental principle behind 

compensatory damages—that of recompensing the injured party for losses proven 

in the record. [Id. at 763-764 (citations omitted).]

With these principles in mind, we turn to the jury’s decision. The jury was instructed to 

consider six types of damages and it determined the amounts for each: (1) past economic 

damages for medical expenses ($25,000), (2) future economic damages for medical expenses

($2,068,000), (3) past economic damages for lost earning capacity or wages ($250,000), (4) 

future economic damages for lost earning capacity or wages ($806,000), (5) past noneconomic 

damages for pain and suffering ($250,000), and (6) future noneconomic damages for pain and 

suffering ($1,217,000). Defendant does not challenge the awards for past economic damages for 

lost earnings or past noneconomic damages for pain and suffering. For the reasons set forth 

below, we conclude that as to the remaining four categories, the verdict was not excessive as to 

three of them. However, we conclude that the damages as to future medical expenses were

excessive.

A. PAST ECONOMIC DAMAGES FOR MEDICAL EXPENSES

The jury awarded plaintiff $25,000 in past economic damages for medical expenses. 

Defendant argues that Plaintiff’s Exhibits 16-18 supported no more than $22,508 in past medical 

expenses.

Initially, defendant argues here and with regard to other portions of the verdict that it is

excessive because the jury exceeded the amount that plaintiff’s attorney requested in closing. 

Defendant, however, fails to cite any caselaw supporting its suggestion that the jury is bound by 
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the amount sought by the plaintiff at trial nor that this alone can justify a new trial or remittitur.5 

We have previously noted that “[a] jury may award greater damages than those sought; 

nevertheless, that is one factor to consider in determining whether an award is excessive.” Tomei 

v Bloom Assoc, Inc, 75 Mich App 661, 668-669; 255 NW2d 727 (1977). Accordingly, the 

amount sought by plaintiff in closing may be considered in determining whether the award is 

excessive, but the primary focus should be on the evidence.6

The evidence at trial as to past medical expenses were limited to documents showing the 

amount of plaintiff’s health insurer’s lien and plaintiff’s out-of-pocket costs for health services to 

the date of trial. Defendant argues that the total of past medical expenses as shown by the 

evidence was $22,508 and we agree. As there was no evidence of additional expenditures we 

find that the award was excessive. On remand, the trial court shall grant remittitur as to the 

award for past medical damages so as to lower the award for past medical expenses to $22,508.

B. FUTURE ECONOMIC DAMAGES FOR LOST EARNING CAPACITY OR WAGES

The jury awarded plaintiff a total of $806,000 for future lost earning capacity or wages. 

Defendant argues that plaintiff’s average salary the previous five years was only $72,000 a year. 

However, where future damages were concerned, plaintiff’s losses in pension benefits had to be 

included as well, which substantially increased the total. Defendant also argues that plaintiff 

should not have been awarded wages through age 65 claiming that she testified that she would 

definitely have retired at 62 or 63. In fact, plaintiff testified that she had thought she would work 

till age 62 or 63, but that she “didn’t know” exactly when she would actually have retired. 

Further, plaintiff’s economic expert, Dr. Paranjpe, testified that the age of retirement has been 

increasing and will likely continue to increase as more people work until 70. He provided the 

jury with charted earning loss estimates out to age 65, but explained to the jury how they could 

cut the loss off at age 63 or any other age they thought appropriate. He also testified that the life 

expectancy for plaintiff was 82 years. It was not unreasonable for the jury to conclude that 

plaintiff would likely have worked until 65 in light of all the testimony.

Defendant also points out that the jury calculated plaintiff’s earning losses to be greater—

on a year-by-year basis until her retirement—than the sums calculated by Dr. Paranjpe. 

However, Dr. Paranjpe also testified as to significant reduction in her pension which would carry 

forward through the rest of her life. He estimated that plaintiff would have lost a total of 

 5 The cases cited by defendant in the “Introduction” section of its brief on appeal do not support 

its claim. In Denhof v Grand Rapids, 494 F3d 534, 547 (CA 6, 2007), the court concluded that, 

“[p]resumably, the plaintiffs’ attorneys requested the amount of damages they believed were 

supported by the evidence,” but also concluded that the award exceeded the amount supported by 

the evidence. The court upheld a remittitur but the amount of damages ordered by the court 

exceeded what had been suggested by the plaintiff’s counsel. Id.

6 We also note that while the evidence must provide support for the amount ultimately awarded, 

an attorney may, for strategic reasons, choose to suggest a figure below that in closing argument.
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$900,664 for lost earnings and lost pension benefits.7 The jury awarded a total of $806,000

which is less than the amount of loss that he calculated. Given that the figure was well below the 

most the evidence would have supported, we conclude that the total award was reasonable 

despite defendant’s concern about the way in which the jury structured the calculation of that 

sum.8

C. FUTURE NONECONOMIC DAMAGES FOR PAIN AND SUFFERING

Finally, the jury awarded plaintiff a total of $1,217,000 ($17,000 for the remainder of 

2015 plus $50,000 a year for 24 years) for future noneconomic damages for pain and suffering. 

Defendant argues that plaintiff only sought $25,000 a year for 24 years ($600,000 in total), her 

injuries were not supported by the record, and the jury did not account for her preexisting 

injuries. With regard to plaintiff’s injuries, again, the evidence must be viewed in the light most 

favorable to plaintiff. Heaton, 286 Mich App at 539. Plaintiff testified regarding her ongoing 

neck pain, headaches, cognition problems, and memory problems. There was testimony that as a 

result plaintiff could no longer work. She continued to have trouble with concentration and 

could not multi-task. She could also no longer do many of the activities she used to enjoy with 

her family or alone.

In sum, there was substantial evidence that plaintiff was suffering the cognitive, memory 

and mood9 sequela of a traumatic brain injury. Where damages for emotional distress are at 

issue, comparison with damage awards in comparable cases “in this jurisdiction and beyond”

becomes most relevant. Gilbert, 470 Mich at 767. “[O]ther damage awards may provide a range 

of what constitutes reasonable compensation for the type of injury suffered by a plaintiff.” Id. 

Thus, it is necessary to consider the third factor, awards in similar cases, to determine whether 

the jury’s award of noneconomic damages was supported by the record. For the reasons 

discussed below, the award of $1,217,000 over plaintiff’s lifetime with consideration of inflation 

was reasonable.

Given that “other damage awards may provide a range of what constitutes reasonable 

compensation for the type of injury suffered by a plaintiff,” Gilbert, 470 Mich at 767, the focus 

in comparing other cases must be on comparable injuries. Thus, it is necessary to consider cases 

in which the plaintiff suffered a traumatic brain injury with symptoms similar to plaintiff’s 

symptoms, including headaches, neck pain, loss of cognitive function, memory problems, 

inability to concentrate, depression, and sensitivity to light and sound. Defendant, however, 

 7 The defense did not offer any testimony that calculated a different earnings loss assuming 

liability.

8 “[A] verdict should not be set aside merely because the method the jury used to compute 

damages cannot be determined.” Heaton v Benton Constr Co, 286 Mich App 528, 539; 780 

NW2d 618 (2009).

9 Contrary to defendant’s assertion, there was evidence that her preexisting depression was 

exacerbated or aggravated.
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relies on cases with similar facts, i.e., objects falling at stores, but not similar injuries. None of 

the cases cited by defendant involved a traumatic brain injury with similar symptoms.

A survey of cases involving similar injuries reveals that the jury’s total award of 

$4,616,000, including its award of $1,217,000 in future noneconomic damages, was reasonable. 

See Popolizio v Co of Schenectady, 62 AD3d 1181; 879 NYS2d 616 (2009) (increasing an award 

of $1.25 million for future pain and suffering to $1.75 million where the plaintiff suffered a 

traumatic brain injury that affected his everyday life, affected his cognitive functioning and 

ability to enjoy things, and resulted in depression); Donnellan v First Student, Inc, 383 Ill App 

3d 1040; 322 Ill Dec 448; 891 NE2d 463 (2008) (upholding an award of $6 million for a plaintiff 

who suffered a brain injury, lost mobility, increased pain, and depression); Roness v Fed Express 

Corp, 284 AD2d 208; 726 NYS2d 645 (2001) (upholding award of $1 million for past pain and 

suffering to a plaintiff who suffered a traumatic brain injury that caused “post-accident brainfunction deficits”).

In sum, because the jury’s verdict as to the relevant categories was not excessive the trial 

court did not abuse its discretion by refusing to grant a new trial under MCR 2.611(A)(1)(c).

IV. WHETHER THE VERDICT WAS THE RESULT OF PASSION AND SYMPATHY

Because we have found no excessiveness as to these categories of damages, we need not 

consider whether the awards “appear to have been influenced by passion or prejudice.” We note, 

however, that after reviewing the evidence we find very little, if any, support for this claim. 

Defendant claims that: (1) several jurors became emotional during the testimony of plaintiff and 

her mother, (2) plaintiff’s attorney’s closing argument asked the jury to punish defendant, (3) the 

jury only deliberated for 30 minutes and was asked by the trial court to clarify its verdict, and (4) 

the jury “celebrated” in the hallway with plaintiff after the conclusion of the trial.

10

Defendant fails to identify any caselaw supporting its argument that a jury’s short 

deliberation or its claim of the jury “celebrating” with plaintiff outside the courtroom after the 

trial was concluded, establishes that its verdict was the product of passion or sympathy.11 

Defendant does refer us to a Florida remittitur case in which the “highly emotional testimony” of 

a witness caused the witness, the judge, and other court personnel to cry. Glabman v De La 

Cruz, 954 So 2d 60, 62 (Fla App, 2007). However, defendant fails to point to anything in 

 10 No contemporaneous record of jurors “celebrating” with plaintiff in the hallway was made. 

The assertion is based on the affidavit of defense counsel filed with the motion for new trial. 

11 Defendant refers us to a single out-of-state case, Blossman Gas, Inc v Shelter Mut Gen Ins Co, 

920 So 2d 422, 425 (Miss, 2006), in which a new trial was granted and in which some members 

of the jury hugged the defendant and her counsel after the verdict. In that case, however, ruling 

was based on the fact that the verdict was against the overwhelming weight of the evidence not 

on the jurors’ action. In addition, the trial court had, unlike in this case, granted defendant’s 

request for a new trial and the appellate court noted that it could reverse that action only by 

finding an abuse of discretion.
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plaintiff’s or her mother’s testimony that was highly emotional. Nor is there any evidence that 

the witnesses, the judge, or court personnel cried.12 It was well within the trial court’s discretion 

to find that the fact that the jury was visibly moved or were happy that plaintiff obtained a 

verdict was insufficient to establish that its verdict was the product of passion or sympathy,

particularly where the concern was not immediately brought to the court’s attention. Finally, the 

fact that some of the jury’s awards were less than what plaintiff requested further suggests that 

the jury was not affected by sympathy or prejudice.

With regard to defendant’s claim that plaintiff’s counsel made improper arguments in 

closing, this argument was not raised below and is, therefore, unpreserved. Mouzon v Achievable 

Visions, 308 Mich App 415, 419; 864 NW2d 606 (2014). Had defendant raised a timely 

objection, the trial court could have, if necessary, provided a curative instruction. As plaintiff 

contends, the trial court’s decision is reviewed for an abuse of discretion, Heaton, 286 Mich App 

at 538; thus, any new argument should not be considered. Nonetheless, we note that the cases 

cited by defendant are clearly distinguishable. In Gilbert, 470 Mich at 754, the Court found that 

the plaintiff’s attorney’s arguments were intended to incite passion and prejudice where counsel 

“evoked images of physical abuse and torture, compared his client to survivors of the holocaust,

and argued that defendant . . . thought of itself as ‘God Almighty’ exempt from the legal norms 

that govern others.” He also suggested that the jury should award damages not based on what 

would fairly compensate the plaintiff, but based on what it would take to “assure that [this] 

verdict will be heard from the floor of that plant on Jefferson to the board room in Auburn Hills 

or Stuttgart.” Id. at 772.13

Nothing comparable to such language appeared in plaintiff’s closing argument here. 

Defendant cites a single statement during closing argument by plaintiff’s counsel in which he

argued, “So don’t let them get away with everything they’ve done to her. Don’t let them get 

away with they’re [sic] lies, don’t let them call her a liar.” Defendant argues that this language 

inflamed the jury to award punitive damages. However, there was no request for punitive 

damages, no reference to a need to punish or deter defendant from future bad conduct, and at no 

time did plaintiff’s counsel ask the jury to “send a message” to defendant. The request to “not let 

them get away with this” was a request that the jury find liability based on defendant’s

 12 Defendant cites two other out-of-state cases neither of which is on point. In Samuels v Torres, 

29 So 3d 1193, 1196-1197 (Fla App, 2010), a new trial was granted because defense counsel 

made repeated references to the fact that defendant was impoverished and had no insurance to 

pay a judgment which the court concluded deprived defendant of fair trial. In Carey v Lovett, 

132 NJ 44, 63; 622 A2d 1279 (1993), a new trial was granted due to repeated episodes of bias by 

the trial judge.

13 Similarly, in Reetz v Kinsman Marine Transit Co, 416 Mich 97, 111; 330 NW2d 638 (1982),

the Court concluded that the plaintiff’s attorney’s comments created in the minds of the jurors 

the image of the defendant “as an unfeeling, powerful corporation controlled by a ruthless 

millionaire.”
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negligence. And given that the defense to the case centered largely on medical testimony that 

plaintiff was not injured despite her assertion that she was, it was not improper for counsel to 

argue that they should reject the implicit suggestion that plaintiff was a liar. In closing argument 

attorneys “are not required to phrase arguments in the blandest of all possible terms.” People v 

Ullah, 216 Mich App 669, 678; 550 NW2d 568 (1996). Finally, as already noted, that some of 

the jury’s awards were less than what plaintiff requested also suggests that the jury was not 

affected by sympathy or prejudice.

Therefore, the court properly found that the verdict was not the result of passion or 

prejudice.

V. FUTURE ECONOMIC DAMAGES FOR MEDICAL EXPENSES

The jury awarded plaintiff a total of $2,068,000 ($28,000 for the remainder of 2015 plus 

$85,000 a year for the following 24 years) in future economic damages for medical expenses. 

We agree with defendant that this award is clearly excessive as it bears little, if any, relationship 

to the expected future treatment described in testimony. Defendant argues that Dr. Bradley 

Sewick’s testimony supported, at most, $372,000 in future medical expenses, and points out that 

plaintiff’s counsel only suggested an award of $250,000.

In her response to defendant’s motion for new trial, plaintiff argued that the jury’s award 

was supported by past medical expenses totaling $47,000 which could be extrapolated into the 

future and that this sum may be lower than it should be because plaintiff had to forgo some 

treatment because she lost her insurance. Plaintiff also pointed to Dr. Sewick’s testimony 

regarding her future treatment, where he stated that plaintiff would require psychological and 

psychiatric treatment for the “long-term,” and that she should participate in a 6-months long day 

treatment program.

14 Sewick also noted that treatment would continue to be required for 

plaintiff’s non-cognitive injuries such as headaches and neck pain.15

There was evidence that plaintiff had to forgo some recommended treatment because of 

her lack of insurance and so the amount billed did not necessarily reflect the full amount that 

should be considered, and that without insurance, the amount plaintiff would be required to pay 

could be higher than the discounted rates charged to most insurers. The jury was also instructed 

that it could consider the effect of inflation. Thus, the jury could have reasonably inferred that 

 14 He testified that the counseling would cost up to $250 an hour, which would occur weekly or 

every other week. The psychiatric follow-up would occur at least on a quarterly basis and would 

cost approximately $250 a session. With regard to the day program, Dr. Sewick recommended a 

trial for three to six months, five days a week, which would cost $5,000 or $6,000 a month. He 

did not testify as to the cost of other treatment but such evidence was available in the plaintiff’s 

medical bills to date.

15 Although defendant contends that Dr. Sewick’s testimony was speculative, as defendant 

concedes, we must view this evidence in the light most favorable to plaintiff. Heaton, 286 Mich 

App at 539.
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the cost of the same services in the future would be more than the cost to date. And there was 

sufficient evidence that many of the sequela from her injury would continue indefinitely and that 

she had been referred for future treatment.

However, none of this provides evidentiary support for the jury’s conclusion that 

plaintiff’s future medical care would cost $85,000 per year. We conclude that the amount is 

clearly excessive and that remittitur is required.

When providing its opinion from the bench, the trial court spent little time discussing 

what evidence supported the jury’s award for plaintiff’s future medical costs. On remand, the 

trial court shall review the relevant evidence and determine the highest amount for future 

medical damages that the evidence will support. It shall also grant remittitur as to past medical 

damages setting the award at $22,508. Pursuant to MCR 2.611(E)(1), plaintiff will have 14 days 

from the trial court’s order of remittitur to accept these figures and have them incorporated into 

the judgment. If plaintiff elects not to do so, the court shall conduct a new trial limited to the 

issue of damages for future medical expenses and/or past medical expenses.

We affirm the judgment in all other respects. No costs as neither party have prevailed in 

full. MCR 7.219. We do not retain jurisdiction.

/s/ Douglas B. Shapiro 

/s/ Joel P. Hoekstra 

/s/ Michael J. Kelly