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

revision until final publication in the Michigan Appeals Reports.

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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

CALLAHAN MCFARLAND, by Next Friend VAL 

MCFARLAND, 

Plaintiff-Appellee,

UNPUBLISHED 

September 29, 2022

v No. 357218

Oakland Circuit Court

DEAN TRANSPORTATION, INC., LC No. 2017-162208-NO

Defendant-Appellant.

Before: GLEICHER, C.J., and MARKEY and PATEL, JJ.

PER CURIAM.

Callahan McFarland is nonverbal with autism spectrum disorder (ASD). When Callahan 

was thirteen years old, he was assaulted by another special education student while riding a school 

bus operated by defendant Dean Transportation, Inc. Plaintiff Val McFarland, Callahan’s mother 

and next friend, filed this action alleging that Dean Transportation was negligent and grossly 

negligent for allowing the assault to occur. The jury found Dean Transportation negligent and 

awarded $10,000 in noneconomic damages, but the jury did not award any economic damages. 

The trial court set aside the jury’s verdict and granted a new trial because it determined that the 

economic damages were inadequate and appeared to have been influenced by defense counsel’s 

improper statements that plaintiff had insurance coverage. Dean Transportation now appeals by 

delayed leave granted.

1

Proximate causation was strongly contested at trial. It was the jury’s prerogative to assess 

the testimony and evidence to determine whether each category of damages was warranted. The 

jury was not required to award economic damages simply because liability was found, Joerger v 

Gordon Food Service, Inc, 224 Mich App 167, 173; 568 NW2d 365 (1997), or because it awarded 

noneconomic damages, Kelly v Builders Square, Inc, 465 Mich 29, 39; 632 NW2d 912 (2001).

And while defense counsel’s comments were improper, the jury’s verdict was supported by the 

 

1 McFarland v Dean Transp, Inc, unpublished order of the Court of Appeals, entered August 10, 

2021 (Docket No. 357218). 
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record. Accordingly, we reverse the trial court’s order granting a new trial and remand for entry of 

a judgment consistent with the jury’s verdict. 

I. BACKGROUND 

Callahan was diagnosed with ASD when he was two years old. He participated in applied 

behavior analysis (ABA) and other therapies. He eventually was able to attend public school when 

he was 10 years old. When he started middle school in 2014, he was struggling with behaviors 

such as eyelash pulling, or throwing things in water, toilets, and garbage disposals. But Callahan’s 

parents maintained that he had not had any issues with self-injurious or destructive behaviors for 

several years prior to the assault. His parents also contended that he had been toilet trained since 

he first started attending public school in the fourth grade, but admitted that he would have 

occasional accidents. Callahan did not have any adjustment issues at the beginning of the 

2017/2018 school year.

After the September 2017 assault, Callahan was diagnosed with a concussion and postconcussive syndrome. His parents maintained that his behavior regressed after the assault. He 

exhibited obsessive-compulsive behaviors, separation anxiety, sleep disturbances, and toileting 

issues. Callahan was treated with various prescription medications, additional ABA therapy, 

speech therapy, and other programs to address his regressive behavior. Mrs. McFarland testified 

that Callahan regressed to where he was when he was five years old. And he began wearing diapers

again. At the time of trial, he was still wearing diapers. Callahan’s parents withdrew him from 

school after the incident because they were concerned for his safety, and Mrs. McFarland did not 

think that he was capable of attending public school.

Dean Transportation did not dispute that Callahan required services and treatments, but it 

argued that the prescribed services and treatments were not causally related to the assault. It 

maintained that, regardless of the assault, Callahan would have needed the various services and 

prescribed treatments because of his ASD condition. 

Following a seven-day trial, the jury found that Dean Transportation was negligent, that 

Callahan sustained an injury or damage, and that Dean Transportation’s negligence was a

proximate cause of his injuries or damages. The jury awarded Callahan $10,000 in noneconomic 

damages, but it did not award any economic damages. Plaintiff moved for a new trial or additur 

arguing that the jury’s failure to award economic damages was inadequate and unfairly influenced 

by defense counsel’s implication of medical insurance as a collateral source. The trial court agreed 

that the verdict was inadequate, and further found that defense counsel engaged in misconduct that 

appeared to have contributed to the inadequate verdict. Accordingly, the trial court granted 

plaintiff’s motion for a new trial, limited to the issue of economic damages. In a separate order, 

the trial court denied Dean Transportation’s motion for a directed verdict on the issue of plaintiff’s 

economic damages. Dean Transportation now appeals by delayed leave granted.

II. STANDARD OF REVIEW

We review a trial court’s decision to grant or deny a motion for a new trial for an abuse of 

discretion. Gilbert v DaimlerChrysler Corp, 470 Mich 749, 761; 685 NW2d 391 (2004). A trial 

court abuses its discretion when its decision falls “outside the range of reasonable and principled 
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outcomes.” Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007). We review a trial court’s 

factual findings for clear error. Home-Owners Ins Co v Perkins, 328 Mich App 570, 579; 939 

NW2d 705 (2019). “A finding is clearly erroneous when, although there is evidence to support it, 

the reviewing court on the entire record is left with the definite and firm conviction that a mistake 

has been committed.” Id. (quotation marks and citations omitted).

III. ANALYSIS

Dean Transportation argues that the trial court abused its discretion by granting plaintiff’s 

motion for a new trial on the issue of economic damages. We agree. 

The trial court granted plaintiff a new trial under MCR 2.611(A)(1)(c), which states:

(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.

In order to grant relief under MCR 2.611(A)(1)(c), it is necessary to first determine whether 

the economic damages were “inadequate.” It is the jury’s duty to assess damages in accordance 

with the evidence. Zinchook v Turkewycz, 128 Mich App 513, 518; 340 NW2d 844 (1983). It is 

the plaintiff’s burden to prove damages, and a jury is free to accept or reject such proofs. Joerger, 

224 Mich App at 172-173. A jury is not required to award damages simply because liability was 

found. Id. at 173. “Medical expenses and pain and suffering are distinct categories of damages,” 

each of which “may have a distinct evidentiary basis,” and a plaintiff bears the burden of proving 

“each element of [his or] her case, including every item of claimed damages.” Kelly, 465 Mich at

39. It is the trier of fact’s prerogative to assess the testimony and evidence to determine whether 

an award of a category of damages is warranted:

In short, the jury is free to credit or discredit any testimony. It may evaluate the 

evidence on pain and suffering differently from the proof of other damages. No 

legal principle requires the jury to award one item of damages merely because it 

has awarded another item. [Id.]

In this case, the trial court concluded that the jury’s refusal to award economic damages 

was inadequate because: 

the jury was presented with evidence from which it could be determined that the 

cost of treating Callahan’s injuries occasioned by the assault was $89,000 per year. 

Because the jury decided not to award any damages, the Court finds that the award 

is insufficient for the purpose of providing Callahan with the private services that 

were required to treat his regression in behavioral functioning occasioned by the 

assault. 
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Plaintiff presented testimony and evidence that Callahan’s behavior regressed after the 

assault. As a result, Callahan participated in extensive therapies, was prescribed various 

medications, and wore diapers. Dean Transportation did not specifically challenge the costs of the 

therapies, medications, or diapers. But it did contest plaintiff’s claim that Callahan’s behavioral 

issues were caused by the assault.

After the assault, Callahan began treating with Dr. Meghan Harper-Shankie, a pediatric

neurologist. Dr. Harper-Shankie opined that the assault could have caused a concussion and 

diagnosed Callahan with post-concussive syndrome. She was also concerned that he may have 

post-traumatic stress disorder (PTSD) given his agitation and aggressive behaviors. She prescribed 

medications to help manage his anxiety, aggressive behavior, obsessive-compulsive behavior, and 

seizures. She indicated that autistic children are prone to seizures. In fact, she testified that there 

is a 30% likelihood that someone with an autism diagnosis will have a seizure. 

On cross-examination, Dr. Harper-Shankie acknowledged that the medical records 

revealed that Callahan was experiencing much of the same obsessive-compulsive behaviors in 

2015 that he experienced after the assault, including repeatedly touching the wall, flipping 

switches, dumping water, and pulling his eyelashes out. She also acknowledged that any stressful 

event, including Callahan’s removal from school, could cause behavioral changes. She conceded 

that Callahan’s post-concussive symptoms progressively improved, but maintained that some of 

the physical symptoms took longer than expected to resolve. 

Dr. Gerald Shiener, plaintiff’s psychiatric expert, opined that Callahan suffered PTSD, a 

concussion, and a seizure disorder as a result of the assault. Dr. Shiener opined that the assault 

caused Callahan’s regression and subsequent behavioral issues. He testified that there was no 

evidence that Callahan suffered obsessive-compulsive disorder (OCD) before the assault. Given 

that Callahan was still experiencing symptoms such as anxiety, obsessive-compulsive behavior, 

insomnia consistent with post-concussion syndrome, headaches, and regression in activities of 

daily living, such as toileting, Dr. Shiener opined that these symptoms were likely to be permanent 

or persistent.

Mr. McFarland testified that Callahan’s therapies, medications, and diapers are costly.

After the assault, Callahan was removed from public school and enrolled in Autism Home Support 

Services (AHSS), which is a private facility. At the time of trial, Callahan was attending ABA 

therapy at AHSS, which costs $1300 per week. The family also met with the AHSS director 

approximately once a month at a cost of $50 per session. Although Callahan had attended speech 

therapy, which costs $250 per week, his speech therapy was discontinued because the family could 

no longer afford it. Callahan was also taking several prescription medications and Mr. McFarland 

testified regarding the associated costs, which were corroborated by pharmacy billing records. In 

addition, the family purchased 21⁄2 cases of diapers for Callahan each week at a cost of $20.50 for 

each case.

Dean Transportation challenged the relationship of these expenses to the assault through 

the cross-examination of plaintiff’s witnesses, testimony from Callahan’s former teacher, and 

testimony from the defense expert. For example, Ian Cohoon, the lead board-certified behavior 

analyst and center manager at AHSS, acknowledged on cross-examination that a child with ASD 

can experience regression if the child is removed from a structured school setting and his routine 
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is changed. Cohoon explained that children on the autism spectrum often have challenges with 

change. And changing their routine can cause regression. Cohoon also testified that, in the two 

years that Callahan had been attending ABA therapy at AHSS, Callahan’s skills and behaviors had 

progressed. For example, although Callahan was still wearing diapers at home, he had advanced 

to a point where he did not wear diapers at AHSS.

Deb Herczak, Callahan’s former sixth and seventh grade special education teacher, testified 

that, prior to the assault, Callahan had issues with eating, did not appear to want to use the 

bathrooms at school, had toileting accidents, and would pick his eyelashes. Callahan’s individual 

education plan (IEP) for the 2014/2015 school year stated that he threw things in water, toilets, 

and garbage disposals. He also ran around the room kicking things and people. During the 

2016/2017 school year, his IEP reflected that he continued to have issues using the bathroom, even 

when prompted, and that he had eating issues.

Dr. David Rosenberg, defendant’s child and adolescent psychiatry expert, disagreed with 

Dr. Shiener’s opinion that there was no evidence that Callahan suffered from OCD before the 

assault. He noted that the medical records demonstrated that before the assault, Callahan was 

having issues with showering multiple times a day, toileting, and eating. And the medical records 

revealed that he had been prescribed OCD medications in 2010 and 2015. Dr. Rosenberg also 

opined that Callahan did not meet the clinical criteria for PTSD. Instead, Dr. Rosenberg related 

Callahan’s anxiety and obsessive-compulsive behaviors to his pre-existing OCD and ASD 

diagnoses. He also disagreed with Dr. Shiener’s opinion that Callahan’s seizure activity was 

caused by the assault. Just as Dr. Harper-Shankie had testified, Dr. Rosenberg explained that 30% 

of children with ASD are predisposed to having epilepsy or seizure activity without trauma. Dr. 

Rosenberg stated that many of his patients with ASD require medications to manage seizures and 

behaviors associated with ASD such as anxiety, irritability, insomnia, and obsessivecompulsiveness. According to Dr. Rosenberg, even ASD patients who have not experienced 

trauma deal with some of the same issues that Callahan has, such as not sleeping in their own bed, 

toileting problems, anxiety, and not being able to attend public school. 

Dr. Rosenberg testified that, with ASD, “[i]t’s the rule that there is a waxing and waning 

of symptoms, an up and down as the threshold goes up and down, and you can predict symptoms 

like these, even if the incident on the bus had never happened.” Dr. Rosenberg noted that, before 

the assault, Callahan would engage in self-injurious behavior, aggressive behavior with others, and 

required 24-hour care. Dr. Rosenberg disagreed with Mrs. McFarland’s claim that Callahan had a 

dramatic deterioration in his behavior after the assault. He opined that there were a multitude of 

factors that could have contributed to Callahan’s behavioral issues after the assault, such as his 

removal from the structured school environment, the onset of puberty, the parents’ perseveration

on the assault, and “just the waxing and waning in autism and associating obsessive-compulsive 

behaviors.” 

After hearing the totality of the testimony, the jury concluded that Dean Transportation

was negligent and that Callahan suffered injuries or damages as a result. It awarded noneconomic 

damages in the amount of $10,000 for Callahan’s “physical pain and suffering, mental anguish, 

fright and shock, denial of social pleasure and enjoyments, embarrassment, humiliation or 

mortification, the disability of a traumatic brain injury and post-traumatic stress disorder, and the 

increase in any of these elements of damages arising from aggravation of a preexisting ailment or 
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condition[.]” Although plaintiff had requested an award of both past and future economic damages, 

the jury did not award any economic damages. 

Contrary to the trial court’s conclusion, the jury’s award of zero economic damages was

not inadequate or inconsistent with its verdict. “[T]he authority to measure damages . . . inheres in 

the jury’s role as trier of fact.” Gilbert v DaimlerChrysler Corp, 470 Mich 749, 763; 685 NW2d 

391 (2004) (quotation marks and citations omitted). The jury was not required to award economic 

damages simply because liability was found, Joerger, 224 Mich App at 173, or because it awarded 

noneconomic damages, Kelly, 465 Mich at 39. Even if plaintiff’s economic damage figures2 were 

not controverted, proximate causation was certainly challenged. And it was the jury’s duty to 

assess damages in accordance with the evidence. Zinchook, 128 Mich App at 518. 

The trial court recognized that Dean Transportation “disputed that Callahan’s behavioral 

regression resulted from the incident on the bus, and presented expert testimony in support of its 

position.” But in its order granting the motion for new trial, the trial court only addressed the 

favorable evidence and testimony in support of plaintiff’s economic damages claim. The court

failed to mention Dr. Rosenberg’s contradictory testimony or discuss the testimony of other 

witnesses that was elicited on cross-examination. “The weight given to the testimony of experts is 

for the jury to decide, and it is the province of the jury to decide which expert to believe.” Guerrero 

v Smith, 280 Mich App 647, 669; 761 NW2d 723 (2008) (quotation marks and citation omitted).

Even if a witness’s statements are not contradicted, a jury is afforded the discretion to disbelieve 

that testimony. Id. The doctors disagreed whether Callahan’s behavioral issues were related to the 

assault, or whether they were mere continuations of pre-existing issues that were unaffected by the 

assault. It was for the jury to decide which witnesses to believe in determining whether plaintiff 

was entitled to an award for economic damages. The trial court clearly erred in finding that the 

economic damages award was inadequate as a matter of law. 

Because the jury’s verdict was supported by the record and the economic damages award 

was not inadequate as a matter of law, it is unnecessary for us to reach the second prong of the 

analysis under MCR 2.611(A)(1)(c): whether “inadequate damages [appear] to have been 

influenced by passion or prejudice.” (Emphasis added).

IV. CONCLUSION

Because the jury’s verdict was supported by the evidence, the trial court clearly erred in 

finding that the economic damages award was inadequate as a matter of law. Accordingly, we 

conclude that the trial court abused its discretion by granting plaintiff a new trial on the issue of 

economic damages. We reverse the trial court’s order granting a new trial and remand for entry of 

a judgment consistent with the jury’s verdict.

 

2 The jury verdict form asked the jury to award past and future economic damages for each of the 

following categories (1) medical care, treatment, and services, (2) speech therapy, (3) ABA 

therapy, (4) diapers, (5) prescriptions, and (6) transportation. 
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Given our disposition of this issue, defendant’s additional argument—that the trial court 

erred by denying its motion for a directed verdict on the issue of plaintiff’s economic damages—

is moot. Accordingly, we decline to consider it. 

Reversed and remanded for proceedings consistent with this opinion. We do not retain 

jurisdiction. 

/s/ Elizabeth L. Gleicher 

/s/ Jane E. Markey 

/s/ Sima G. Patel