NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0175n.06
No. 10-1512
UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T SHERRY BERRY, Plaintiff-Appellant,

v. AL L STATE I

NSURANCE COMPANY, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : KETHL EDGE a nd STRANCH, Circuit J udg es; GWI N, District J udg e. *

GWI N, Di strict J udg e. Sherry Be rry , a Michig an citizen, appea ls a district court order deny ing her motion for a new trial in a diversity brea ch of contra ct action that she filed ag ainst her automobile insurance company
. She arg ues that the district court err ed when it allowed the defe ndant to offe r opinion evidenc e of a board cer tified neurolog ist. That neurolog ist g ave opinion testimony that Be rry ’s pree x isting hy perte nsion cause d cer ebra l hemorrha g e and that Be rry ’s automobile collision did not ca use her hemorrha g e. B err

y also arg ues that the district cour t erre d during instructions to the j ury and erred in allowing live testimony fro m a witness who defendant orig ina ll y s a id would be prese nted throug h a deposition. For the rea sons descr ibed below, we aff irm. On Dec ember 8, 2006, Be rry was involved in a motor vehicle acc ident when her car struck

a car parke d on the side of the road. She was taken to the hospital, w here she was trea ted for a cut lip, a lace ration to her hand, and a cer ebra l hemorrha g e. Be rry sued her insurance car rier to rec over

The Honora

ble J ames S

. Gw i n, United States District J udg e for the Norther n District of * Ohio, sitti ng by

desig nation.No. 10-1512 - 2 - the medical costs and resultant damag es from the cer ebra l hemorrha g e. Wit h her case , she claimed that her head injury resulted when she struck h er head on the windshield of her car during the

acc ident. Be rry made this claim even though her main problem was a thalamus-are a bleed in one of the brain’s deepe st structure s. I n contra st to Be rry ’s arg ument that the acc ident caused the cente r brain ble eding , the defe ndant said that the brain hemorrha g e resulted from a pree x isting hy perte nsive condition and the ac cident followe d–and did not cre ate–this condition. Be rry moved the court to stop defe ndant from prese nting any expert testimony on the issue of whether she suffe red from high blood pressure prior to the acc ident. The district court denied the motion. Berr

y also moved to prec lude the use of depositions of the medical e x perts in lieu of live testimony

. The dist rict court denied the motion, but ruled that the deposit ions could onl y be used if the witnesses wer e shown to be unavailable

. At trial, the defe nse prese nted a neurolog ist who g ave the opinion that Be rry suffe red a spontaneous intrace rebr al hemorrha g e, and this hemorrha g e cause d her to wre ck her car
. I t arg ued that Be rry ’s damag es did not arise out of the use of her automobile, and that she could not rec over damag es under Michigan No -F au l t Act. The jury found for the defe ndant. B err

y ’s motion for a ne w trial wa s denied, a nd this appeal followe d. Be rry now arg ues that the district court err ed in allowing the defe nse to prese nt opinion testimony that she suffe red from hy perte nsion befor e the acc ident; reje cting her proposed jury instructions; allowing the de fense to depose two witnesse s who later te stified at trial; and deny ing her motion for a new trial wher e the jury ’s verdic t was arg uably inconsistent and ag ainst the weig ht of the e vidence

. We r eview a district c ourt’s dec ision to admit expert testimony for a n abuse of

discretion. Kumho Tire Co. v. Carmichael , 526 U.S. 137, 152 (1999). Be rry arg ues that the district court failed
to fulfill its function of deter mining whether the defe nse exper t s ’ t es t i m ony rested on a reliable foundation and whether their rea soning was scientifica lly valid. S ee K en tucky Speedway

, LLC v. Nat’l Ass’n of Stock Car Auto Racing, Inc. , 588 F.3d 908, 915 (6th Cir. 2009). Contrary to Be rry ’sNo. 10-1512 - 3 -
arg ument, the expert testimony that she suffe red from hy perte nsion p ri o r to the acc ident was sufficie ntly b a s e d o n e v id e n c e
. Def endant showed that the expert testimony was sufficie ntly rele vant and sufficie ntly reliable

. Although Be rry had never been diag nosed with or trea ted for hy perte nsion, she did have two blood p re s s u re re ad i n g s, taken by her trea ting phy sician, of 146/92 in 2005 and 140/90 in 2006. Also, the defe ndant offe red post-acc ident evidenc e showing that Be rry exhibi ted indications of whit e matter disease. Testimony supported that white m atter disease i s most likely due to chr onic hy

perte nsion. Fur ther, Be rry admitted that she had a heada che prior to the acc ident and could not e x plain why she was on the street wher e the acc ident occur red. There fore , sufficie nt evidenc e supported the experts’ testimony that Be rry likely suffe red from hy perte nsion befor e the acc ident. Although Be rry g ave evidenc e that a collision could cause the bleed to the deep brain thalamus are a, other evidenc e sug g ested that “h er hemorrha g e is not in the classic location for a traumatic ty pe of hemorrha g e.” Berry did not show that the experts’ methodology was in any way unscientific or u n re l i ab l e. There fore , no abuse of

discretion in the district cour t’s evidentiar

y ruling has bee n established. Be rry next arg ues that the district court err ed in reje cting her pro p o s ed j u ry instructions. Whil e we revie w t he rejection of a proposed jury instruction for an a

buse of discretion, Hisrich v. Volvo Cars of

N. Am., Inc. , 226 F.3d 445, 449 (6th Cir. 2000), we revie w the corr ectne ss of the jury instructions de novo. Jones v . Fede rated Fin. Reserv e Corp. , 144 F.3d 961, 966 ( 6th Cir. 1998). Be rry relies on Scott v. State Farm Mut. Auto. Ins. Co. , 751 N.W.2d 51, 56 (Mich. App. 2008), for the proposition that she was not require d to exclude other possible cause s of her damag es in order to rec over. I n Scott , the plaintiff prese nted testimony showing how the acc ident contributed
to her medical problems. Id. Her e, plaintiff' s expert was unable to explain how—if the jury believed that the hemorrha g e prec eded the acc ident—the acc ident could have worsene d Be rry ' s hemorrha g e. Be rry , whose case rested on the theory that she did not have a preex i s t i n g co n d i t ion, failed to “pre s en t s u b stantial evide nce from which [t he] jury ” could conclude that the acc ident mere lyNo. 10-1512 - 4 - contributed to, rathe r than cause d, her injury

. Mee mic Ins. Co. v. Hewlett-Pac kard Co. , 717 F.Supp 2d 752, 769 (E.D. Mich. 2010) (apply ing Michig an state-law ) (empha sis in orig inal). Be rry ’s expert did, at one point, comment that “[the hemorrha g e] could also cer tainly be made signific antly worse,” by the acc ident. But to “re ly o n al terna tive theories of causa tion,” a plaintiff “must support eac h theory with admissible evidenc e, and may not rely on conjec t ure or specula tion.” W alk v. Bake r Coll. of Auburn Hills , No. 299925, 2011 WL 5555828, at *5 (Mich. Ct. App. Nov. 15, 2011) (citing Skinner v. Square D. Co. , 516 N.W.2d 475, 480 (Mich. 1994)). Thus, while Be rry was not require d
to exclude all other possible cause s, she did not prese nt sufficie nt evidenc e to support an alterna tive theory

. Fur

thermore , in Nowyorkas v. Farm Bureau Mut. Ins. Co., No. 168726, 1996 WL 33681826 (Mich. App. May 24, 1996), the Michig an appellate court held that injuries that cannot be attributed
to a single identifiable event are excluded from cover ag e under the Michig an No Fa ult Act. Be rry ’s

rema ining challeng es to the jury instructions involve the instructions as to the amount of damag es. But g iven the jury ’s ver dict in favor of the def endant, a ny issue with the damag e instructions doe s not matter. Ther efor e, we find no abuse of discretion in the district cour t’s ruling s. Be rry also arg ues that the district court should not have allowed the defe ndant to depose two of its expert witnesses befor e trial for possible use at trial. These defe nse expert witnesses ultimately did testify at trial. Be rry offe rs the novel ar gu m en t t h at the depositions unfairly allowed the witnesses to better prepa re for cross-e x amination and p re cl u d ed the jury from observing the unprepa red cross-e x amination at the depositions. She cites Allgeier v. United States , 909 F.2d 869 (6th Cir. 1990), for the proposition that the proponent of a deposition must establish that the witness is unavailable

. Howeve r, Be rry ear lier asked to stop the use of depositions in lieu of live testimony

. But afte r these expert witnesses did testify at trial, Be rry now complains that the ear lier depositions allowed the experts to better prepar e. She cites no authority for the arg ument that the depositions should have be en prohibited to pre vent the witnesses f rom lear ning he r trial strate g y .No. 10-1512 - 5 - Finally , citing Anchor v. O’Toole , 94 F.3d 1014, 1021 (6th Cir. 1996), Be rry arg ues that she

was entitled to a new trial beca use the jury ’s decision to awa rd no damag es was not one it could have

rea sonably rea ched. We revie w the denial of a motion for a new trial for an ab u s e of discretion. Nolan v. Memphis City Sch. , 589 F.3d 257, 264 (6th Cir. 2009). Her e, Be rry ’s arg ument is
contra dicted by her attorney ’s concession that the j ury could have conclude d that o n l y her lip and hand injuries wer e cause d by the acc ident, and that damag es for those injuries wer e n o t at issue. Be cause the verdic t rea ched in this case was rea sonable, the district court did not abuse its discretion in deny ing Be rry ’s motion for a new trial. See J.C. W yck off & Assoc. v. Standard Fire Ins. Co. , 936 F.2d 1474, 1487 ( 6th Cir. 1991). For all of the a

bove re asons, the district cour t’s judgme nt is affirmed.No. 10-1512 - 6 - JANE B. STRANCH, Circuit Judge, dissentin g. I respe ctfully dissent be cause I believe the district court err ed in reje cting two of Be rry ’s proposed jury instructions. One o f t h ese instructions came d i re ct l y from a rec ent M ichig an S upreme Court case while t he other acc urate ly ref lects Michig an law and was cruc ial to Be rry ’s alterna tive argu m en t that her brain injury was

exacer bated by the acc ident. Ac co rd i n gl y , I would hold Be rry is entitled to a new trial at which these instructions should be g iven. The Michig an No- Fa

ult Act require s insurers to pay benef its to the i nsured “for a ccide ntal b o d i ly injury arising out of the owner ship, opera tion, maintenanc e or use of a motor v eh i cl e as a
motor vehicle.” Mich. Comp. L aws § 500.3105(1). The term “ar ising out of” is not define d in the

statute. Consist ent with the statute, the trial court instructed the jury that the plaintiff had the burden of proof to show that her “ injuries arose out of the oper ation of a motor ve hicle.” Be rry reque sted the following as par

t of the ca usation instruction:
I n order to rec over no-fa ult benef its fr o m her insurance company , Plaintiff is not require d to establish direc t or proxi mate causat ion. Almost any causa l connec tion will do. Plaintiff is not require d to exclude other possible cause s of her problems in order to rec over a g ainst Defe ndant. She also reque sted the following instruction on apportionment of damag es for pree x isting injuries, which is a modified ve rsion of Mich. Model Civ. J ury I nstr. 50.11:
I f an injury suffe red by Ms. Be rry is a combined product of both a pre exis ting condition and the eff

ects of the automobile acc ident, it is y our duty to deter mine and awa rd damag es cause d by the acc ident alone. You must separ ate the damag es cause d by the ac cident fr om the condition which was pree x isting i f i t is possible to do so. Howeve r, if afte r car eful consideration, y ou are unable to s eparate the damag es cause d by the acc ident from those which wer e pree x isting, then the entire amount of plaintiff' s damag es must be assesse d ag ainst the defe ndant.No. 10-1512 - 7 - Both instructions wer e denied. B e r r y a r g u e s th a t th ese denials wer e err oneous and prejudicia l beca use t hey (1) allowed t he insuranc e compa ny to impose a higher standard of causa tion (that of

a single , sole cause ) and (2) preve nted the jury from finding that, even if she had a brain hemorrha g e just befor e the ac ci d en t , the acc ident exacer bated this pree x isting injury

. I nstead, the jury had to make a n “all or nothing ” dec ision that the crash e ither ca used the he morrhag e or it did not. The majority opinion first reje cts Be rry ’s citation to Scott v. State Farm Mutual Automotive
Insurance Co. , 751 N.W.2d 51 (Mich. Ct. App. 2008), vacate d in part , 758 N.W. 2 d 2 4 9 (Mich. 2008), aff’d on reh’g , 766 N.W.2d 273 (Mich. 2009):
I n Scott , the plaintiff pre sented testimony showing how the ac cident contributed to her medical problems. Id. Her e, plaintiff’s expert was unable to explain how—if the jury believed that the hemorrha g e prec eded the acc ident—the acc ident could have worsene d Be rry ’s hemorr hag e. This is at odds with the recor d. Be rry ’s expert testified: [The hemorrha g e] could cer tainly occur with the ty

pe of forc e that was delivere d. I t could also ce rtainly

be made signific antly

worse w ith the significa

nt jostl ing of the brain due to the forc e delivere d, as well as the concur rent rise in blood pressure due to the acc ident and her

emotional rea ction to it. The ex p er t further testified that a subsequent head injury can have an eff ect that is “sy nerg istic rathe r than just additive,” using as an example the fac t that an NFL quarte rbac k had been held out of a g ame afte r sustaining a head injury in an ear lier g ame. During closing arg uments, Berry ’s attorney reminded the jury that her expert testified, “the acc ident cause d the intracr anial bleed. I f it didn’t, it made it worse.” Although it is clea r from the rec ord that Be rry ’s arg ument and her expert’s testimony was primarily based on the theory that the ac ci d en t co m p letely cause d her injury , it is equally clea

r that evidenc e of the alterna tive theory of exacer bation was also prese ntedNo. 10-1512 - 8 -
to the jury

. See Robelin v. Spectrum Health Hosp. , 791 N.W.2d 466, 469 (Mich. 2010) (stating that “evide nce” includes “expe r t te s timony ”); W

alk v. Bake r Coll. of

Auburn Hills , No. 299925, 2011 WL 5555828, at *5 (Mich. Ct. App. Nov. 15, 2011) (citing Skinner v. Square D Co , 5 1 6 N.W .2d 475 (Mich. 1994)) (per

mitti ng “alter

native theor ies of ca

usation” if supported by

evidenc e). The majority opinion cites onl y one case which actua lly purports to support its conclusion

on this issue, Nowyorkas v. Farm Bureau Mutual Insurance Co. , No. 168726, 1996 WL 33681826 (Mich. C t. App. M ay 24, 1996). Nowyorkas , which is unpublished and has n ev er b ee n cited by a Michig an state court, itself cites only one case as support for its holding that “an injury which could

not be attributed to a single identifiable event was excluded from cover ag e under the no-fa ult act.” Id

. at *1 (citing W

illiams v. Detroit Auto. Inter-I ns. Exc h. , 425 N.W.2d 534 (Mich. Ct. App. 1988)). Taking another step back to the decision cited in W illiams for this proposition, we lear n that the term “sing le identifiable event” is intended to distinguish an i n j ury resulting from an acc ident from injuries arising “fr om a ser ies of eve nts spanning many y ear s”—in that case a chronic back injury sustain ed b y nineteen y ear s of truck driving — and does so primarily beca use the No Fa

ult Act fre quently uses the term “ac cident.” W heele r v. Tucker Freight Lines Co., Inc. , 336 N.W.2d 14, 16 (Mich. Ct. App. 1983)

. W illiams did not turn on this distinction be cause , althoug h there was a car

acc ident, the plaintiff’s own doctor attributed the claimed injury to an ear lier work injury rathe r than

t h e ac cident. 425 N.W.2d at 536. Her e, as Be rry observe s, there is a single identifiable event to which the injury (or at least its exacer bation) could be attributed, the car acc ident, to which Be rry ’s doctor a ttributed all or par t of the injury

.No. 10-1512 - 9 - I n their briefs, both parties cited sever al more rec ent and rele vant case s, including decisions by the Michig an Supreme Court which addre ss thes e i s s u es
. Most benef icially for Be rry , the Michig an Supreme Court used lang uag e very simil ar to that of the first proposed jury in s t ruction quoted above when discussing “the c ausal ne x us require d in a no-fa ult case involving injury ”: [E] vidence establishing almost any causa l connec tion will suffice wh en i t is more than mere ly fortuitous, incidental, or but for. But it need not be much more; almost any causa l connec tion or relationship will do.
Scott v. State Fa r

m Mut. Auto. Ins. Co. , 766 N.W.2d 273, 275 (Mich. 2009) (Ke lly , C.J ., concur ring ). This decision vacated the court’s ear lier reve rsal of Scott. I t upheld the determ i n at i o n o f the 1 Michig an Court of Appea ls that there was a question of fac t as to whether a plaintiff could rec over no-fa ult insurance cover ag e for her cholester ol medication under the “somewha t attenuate d” theory that a previous car acc ident a deca de ear lier cause d her high- cholester ol problem by preve nting her from exercising and eating proper ly

. Scott , 751 N.W.2d at 56. The court rea ched this c onclusion despite the fac t that “a g enetic predisposition to [t he condition] is appar ently prese nt” beca use “ther e is no authority that, for purposes of persona l p ro t ec t i o n insurance , a plaintiff must exclude other possible cause s.” Id. ; see also In re Estate of Favazza , No. 294705, 2011 WL 566830, at *3 (Mich.
Ct. App. Fe b. 17, 2011) (citing Scott for proposition that “[t] he motor vehicle acc ident need only be

one of the cause s of the injury , as there may be other independe nt causes
. ”). Ex ace rbation of an exis ting hemorrha g e by hitting one’s he ad on a w indshield is surely less attenuate d causa tion than the alleg ed ca

use of injury

in Scott

.

Allstate relies heavily on the first, vacated Michig an Supreme C o u rt decision without 1 acc ounting for its reve rsal. This is improper and underc ut s Al l s t at e’ s analy sis as it is the second supreme c ourt dec ision, and the reinstate d court of a ppeals opinion, that g overn this ca se.No. 10-1512 - 10 - Under Michig an law, “[i] f an instruction is applicable to the case , acc urate ly states the law, and was re q u es t ed, the trial court must g ive it.” W hitman v. City of Burton , — N.W.2d —, No. 294703, 2011 WL 2622315 (Mich. Ct. App. J uly 5, 2011) (citing Lewis v. LeGrow , 670 N.W.2d 675 (Mich. Ct. App. 2003)). I believe the first instruction me ets these criter ia beca use causa tion wa s a signific ant issue in the case , the lang uag e came direc tly from a published decision which had rec ently been uphe ld by

the state hig h court, a

nd it was reque sted.
As to the second reje cted instruction, Mich. Model Civ. J ury I nstr. 50.11 all o ws j u ri es to apportion damag es when “an injury suffe red by plaintiff is a combined product of both a pree x isting [disease/injury/state of heath] and the eff ects of defe ndant’s neg lige nt conduct.” I f a jury is unable

to separ ate the damag es, the entire amount must be assessed ag ainst the defe n dant. A rec ent unpublished decision held that this “instruction is a neg lige nce instruction that simply does not apply
in first party , no-fa

ult insurance litigation.” Chalko v. State Farm Mut. Auto Ins. Co. , No. 278215,
2 0 0 9 W L 2 0 0 3 320, at *3 (Mich. Ct. App. J uly 9, 2009). Howeve r, the court made clea r that th e plaintiff had reque sted only an unmodified version o f t h e instruction and “did not in any way
prese rve the notion that this stand ar d instruction should be modified.” Id. This sug g ests that a modified instruction to acc ount for the no-fa ult circ umstances, such as Be rry ’s, mi gh t h ave been
proper
. A leng thy d i s s ent in Chalko arg ued that some ty pe of pre- exis ting injury instruction was require d beca

use “[i] t is clea

r that first party no-fa

ult i n s u ranc e does provide for cover ag e for service s that result from a combination of conditions so long a s one of those conditions is an auto

acc ident injury .” Id. at *7 (Shapiro, J ., dissenting) (citing Morales v. State Farm Mut. Auto. Ins. Co. ,No. 10-1512 - 11 - 761 N.W.2d 454 (2008))

. J udg e Shapiro observe d that “M Civ JI 50.11 is not in the ‘neg lige nce’ 2
section of the model jury instructions, but instead in the ‘dama g es’ section and so can be rea dily adap ted to non-neg lige nce case s.” Id. at *6. He also noted that, like Be rry , the plaintiff offe red evidenc e of a much strong er causa l connec tion than in Scott

. Id. at *8. As a result of these conce rns,

a mere “ar ising out of” instruction without an instruction acc ounting for a “com b i n at ion” injury constituted reve rsible err or beca use “it resulted in a fai l u re t o ‘adequately and fairly ’ prese nt ‘the theories of the parties and the applicable law.’” Id. at *7, 9 (quoting Case v. Consumers Power Co. , 651 N.W.2d 17, 19 (Mich. 2000)); see also Kelmendi v. Citi zens Ins. Co. of

Am. , No. 264019, 2007
WL 419786, at *1 (Mich. Ct. App. Fe b. 8, 2007) (stating that combination injury instruction, suc h

as Mich. Model Civ. J ury I nstr. 50.11, “may have been useful to instruct the jury on how to evalua te [a] plaintiff' s claim alleg ing a g g rava tion of his pre-e x isting injuries” in a no-fa ult case)

. Under Michig an law, jury instructions “should not omit materia l issues, defe nses, or theories
if the evidenc e supports them.” W hitman , — N.W.2d at —, 2011 WL 2622315 (quoting Case , 615
N. W

. 2 d at 19). Wit hout the reque sted modified 50.11 instruction (or the one discussed above),
Be rry ’s alternative t heory of ex ace rbation was entirely omitted from the jury instru ct i o ns, leaving the jury without any explanation a s to w hat “ar ising out of

” means. Although this instruction may have rela ted more to damag es than causa tion, it would have nonetheless made clea r to the jury that apportioned damag es—and thus exacer bation of injury

—was a viabl e o p t i o n for its verdic t. See

I n Morales , the court held that t h e jury was proper ly allowed to consider whether the 2 plaintiff’s preexist ing condition beca me di sabling afte r, or beca use of, a car accident i n a no-fault insurance action. 761 N.W.2d at 465. The court did not consider the ad eq u ac y of the jury instructions beca

use the plaintiff preva iled and the defe ndant assented to the instructions g iven. Id.No. 10-1512 - 12 - Chalko , 2009 WL 2003320, at *6 (quoting Case , 615 N.W.2d at 19) (noting appellate courts revie w instructions “as a w hole”)

. For the rea sons above, I believe the district court comm i tted reve rsible err or in deny ing
Be rry ’s proposed jur

y instructions and Iwould g rant a new tria l.