UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SHAUN BONKOWSKI, 

Plaintiff, Case Number 08-15319

Honorable David M. Lawson

v.

ALLSTATE INSURANCE COMPANY,

Defendant.

__________________________________________/

OPINION AND ORDER DENYING PLAINTIFF’S MOTIONS FOR

JUDGMENT AS A MATTER OF LAW, NEW TRIAL, AND SANCTIONS

This case is one of a series of lawsuits filed by the plaintiff to recover insurance benefits

under Michigan’s No-Fault Insurance Act. That law allows a person injured in an automobile

accident to recover certain costs and expenses related to injuries sustained in the accident. Although

multiple items of claimed economic damages were disputed by defendant Allstate Insurance

Company, the main controversy in this and the other lawsuits filed by the plaintiff was the value of

the attendant care provided to the plaintiff by his father. The first lawsuit, filed in state court,

resulted in a substantial verdict for the plaintiff. In this case, a jury determined that the defendant

did not owe any money to the plaintiff for attendant care, other than what it had continued to pay

on a monthly basis since the time of the first trial. The plaintiff argues that he is entitled to a

judgment as a matter of law because the sole issue before the Court was the plaintiff’s changed

circumstances since the verdict in the first case and the defendant failed to present any evidence on

this issue. He also contends that he should have a new trial because of the failure to give his

requested jury instruction on changed circumstances, the exclusion from evidence of the jury verdict

in the prior trial, and defense counsel’s improper litigation strategy that allegedly turned the trial into

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an impeachment of the prior jury and plaintiff’s counsel. Earlier, the plaintiff filed a motion to

sanction the defendant because it did not answer adequately certain allegations in the complaint.

The plaintiff has not documented many of his arguments with citations to the record or applicable

authority, and none of the arguments has merit. Therefore, the Court will deny the motions.

I. Facts and proceedings

On June 3, 2001, plaintiff Shaun Bonkowski, while walking home, was struck by a motor

vehicle whose unknown driver fled the scene of the accident. The plaintiff was found in the early

morning hours of June 4, 2001 in the ditch of his front lawn after having remained outside,

unconscious, in forty to fifty degree weather. After being flown to St. Joseph Mercy Hospital, he

was immediately resuscitated and taken to the operating room. The plaintiff underwent multiple

surgeries during his more than two month stay at St. Joseph Hospital, including a tracheostomy and

surgeries to his legs and cervical spine.

Due to the extent of the plaintiff’s injuries, his family consulted with Craig Hospital in

Denver, Colorado, a premier center for specialty rehabilitation and research for spinal cord and

traumatic brain injuries, and he was admitted for treatment there on August 14, 2001. On December

9, 2001, around the time of the plaintiff’s discharge, Dr. Mark P. Cilo of Craig Hospital described

the plaintiff’s remaining medical issues to include a spinal cord injury with quadriplegia; traumatic

brain injury complicated by prolonged hypothermia and probably hypoxia with retrograde amnesia

of less than 24 hours, loss of consciousness of approximately two days and posttraumatic amnesia

of several weeks; a history of subdural hematoma; respiratory failure requiring ventilator support;

prolonged hypothermia requiring cardipulmonary bypass for rewarming; bilateral tibial fractures

requiring post intramedullary nailing; a neurogenic bladder requiring an urethral catheter; a

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neurogenic bowel; a percutaneous gastrostomy tube in place for feedings; malnutrition due to poor

intake and poor tolerance of tube feedings; recurrent fevers and pneumonias, with multiple

antibiotics provided; contractures in both upper extremities; anxiety and depression; and severe pain

due to his multiple problems, particularly contractures. 

Craig Hospital educated and trained the plaintiff’s father, Andrew Bonkowski, to provide

for his son’s care. Examples of the skilled nature of care that Andrew learned and provides include

daily manual bowel evacuation (an invasive treatment requiring knowledge of body handling and

positioning), bladder care that requires a “skilled eye” to observe and make appropriate decisions,

medication assistance, and transfer assistance. Since the plaintiff’s discharge from Craig Hospital

on December 1, 2001, he maintains that his father has cared for him twenty-four hours per day in

accordance with the training and the prescriptions of his physicians. 

Michigan’s No-Fault Insurance Act, Mich. Comp. Laws § 500.3101 et seq., abolished thirdparty tort liability for certain economic damages arising out of a motor vehicle accident and provided

a substitute via private insurance. These economic damages include wage loss below the statutory

limit, medical costs, and other allowable expenses, including “reasonable charges incurred for

reasonably necessary products, services and accommodations for an injured person’s care, recovery,

or rehabilitation,” collectively known as Personal Injury Protection, or “PIP,” benefits. See Mich.

Comp. Laws §§ 500.3107-.3110; In re Felski, 277 B.R. 732, 733-34 (E.D. Mich. 2002). The

Michigan state courts have also approved no-fault compensation for care provided by family

members of the injured individual. Booth v. Auto-Owners Ins. Co., 224 Mich. App. 724, 727-29,

569 N.W.2d 903, 904-05 (1997) (citing Reed v. Citizens Ins. Co. of Am., 198 Mich. App. 443, 499

N.W.2d 22 (1993), Botsford Gen. Hosp. v. Citizens Ins. Co., 195 Mich. App. 127, 489 N.W.2d 137

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(1992), Van Marter v. Am. Fid. Fire Ins. Co., 114 Mich. App. 171, 318 N.W.2d 679 (1982), and

Visconti v. DAIIE, 90 Mich. App. 477, 282 N.W.2d 360 (1979)). 

Three requirements must be satisfied to hold a no-fault insurer responsible for these benefits:

(1) the expense must have been incurred, (2) the expense must have been reasonably necessary for

the injured person’s care, recovery, or rehabilitation, and (3) the amount of the expense must have

been reasonable. Nasser v. Auto Club Ins. Ass’n, 435 Mich. 33, 50, 457 N.W.2d 637, 645 (1990),

Moghis v. Citizens Ins. Co. of Am., 187 Mich. App. 245, 247, 466 N.W.2d 290, 292 (1990). The

plaintiff must prove that the expenses were reasonable under the circumstances in order to recover

no-fault benefits. Nasser, 435 Mich. at 49, 457 N.W.2d at 645.

Litigation between the parties in this case began on October 4, 2001 in state court and

addressed the plaintiff’s expenses incurred from the date of his admission to Craig Hospital until the

date of trial. In that case, as here, the plaintiff alleged that his father provided attendant care 24

hours per day, seven days per week. The case resulted in a jury verdict on July 7, 2006. On the

question of the value of the attendant care the plaintiff incurred from the time of his discharge from

Craig Hospital to the date of the verdict, for which Allstate was obliged to reimburse him, the jury

was asked, “What is the amount of allowable expenses owed to the plaintiff (include only expenses

not already paid by the defendant)?” The jury responded: $1,381,114.00. The defendant had paid

$19 per hour for that time period, or $759,240 in total; the jury verdict averaged to an additional

$34.50 per hour for a total of $53.50 per hour when divided by a figure representing 24-hour-sevenday-per-week care over the entire period.

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The defendant filed an appeal in the Michigan Court of Appeals in which it argued that the

$19-per-hour compensation rate it had been paying was reasonable. The Michigan Court of Appeals

sided with the plaintiff:

The only legally relevant question presented to the jury was whether the

compensation [Allstate] paid to Andrew was reasonable. The record contains

sufficient evidence to conclude that the jury rejected [Allstate’s] position.

Substantial evidence was introduced chronicling Andrew’s everyday care of [the]

plaintiff. Not only did Andrew provide care consistent with that of a licensed health

care professional, but ample evidence was presented to support the conclusion that

Andrew’s care was more conducive to [the] plaintiff’s care, recovery, or

rehabilitation than care that could have been provided by a licensed health care

professional.

. . . Although the verdict itself is large, there is nonetheless evidence to support the

jury’s determination that the compensation provided to Andrew by [Allstate] was not

adequate, given Andrew’s training received at the Craig and the actual attendant care

Andrew provided to [the] plaintiff. The evidence was sufficient for reasonable jurors

to conclude that the reasonable compensation due Andrew was substantially more

than the compensation paid by [Allstate]. Thus, the jury verdict must stand.

Bonkowski v. Allstate Ins. Co., 281 Mich. App. 154, 169, 761 N.W.2d 784, 793-94 (2008). The

defendant chose not to continue its appeal to the Michigan Supreme Court and paid the outstanding

attendant care benefits. 

Thereafter, however, the defendant continued to pay attendant care benefits at the $19-perhour rate it had been paying before the jury verdict. As a result, the plaintiff filed the present

complaint in this Court seeking allowable expenses for both attendant care benefits and housing

accommodations. The plaintiff filed a motion for partial summary judgment concerning his claim

for attendant care benefits on June 2, 2009, arguing that the state court verdict settled that question.

The Court denied that motion following a hearing on November 30, 2009. On August 17, 2010, trial

commenced and deliberations began and concluded on August 26, 2010. The jury returned a verdict

for the defendant on count 1 for allowable expenses for attendant care and for the plaintiff on his

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claim for medical expenses for dental care. The jury determined that the defendant owed the

plaintiff $12,500 for dental care costs, but found that this expense was not overdue so as to trigger

statutory penalty interest or attorney’s fees. The Court entered a final corrected judgment on

September 7, 2010.

Prior to trial, the plaintiff filed a motion for sanctions against the defendant. Following the

jury’s verdict, the plaintiff also filed a motion entitled “Renewed Motion for Judgment as a Matter

of Law or in the Alternative for a New Trial” on September 21, 2010. The defendant has filed

responses to both motions, but the plaintiff has not filed a reply. Argument on the motions was

heard on November 22, 2010. In the meantime, the plaintiff has filed a third lawsuit for the value

of attendant care benefits incurred since the jury verdict in this case. Allstate presumably has

continued to pay Andrew Bonkowski for providing 24/7 attendant care to Shaun at the $19-per-hour

rate.

II. Motion for judgment as a matter of law

The plaintiff seeks judgment as a matter of law because he believes that the only issue

properly before this Court was whether there was a significant change in the plaintiff’s

circumstances since the time of the first jury verdict and the defendant presented no evidence on that

point. He says that usually he would rely on his trial brief for a recitation of the facts, but that this

brief was stricken and the Court has not yet reinstated it pursuant to his request. As with many of

plaintiff’s counsel’s factual assertions and arguments, he is simply incorrect. In this instance, the

plaintiff filed a motion to reinstate the trial brief and that motion was granted on August 26, 2010,

before he filed the present motion. In the present motion, the plaintiff asks the Court to enter

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judgment in an amount equal to the number of days of care, for 24 hours each day, multiplied by an

hourly rate that the plaintiff has calculated from the state court jury verdict.

Federal Rule of Civil Procedure 50(b) permits a party to renew a motion for judgment as a

matter of law after judgment is entered on a jury verdict. “A post-trial motion for judgment can be

granted only on grounds advanced in the pre-verdict motion.” Fed. R. Civ. P. 50 Comm. Notes to

1991 amendment; see also Tuttle v. Metro. Gov’t of Nashville, 474 F.3d 307, 316 (6th Cir. 2007),

Am. & Foreign Ins. Co. v. Bolt, 106 F.3d 155, 160 (6th Cir. 1997), Bourgeois v. Strawn, 501 F.

Supp. 2d 978, 984-85 (E.D. Mich. 2007). However, the Sixth Circuit employs a relaxed approach

to that requirement, noting that if the initial motion “provid[es] notice to the court and opposing

counsel of any deficiencies in the opposing party’s case prior to sending it to the jury,” then the

Court should “take a liberal view of what constitutes a pre-verdict motion sufficient to support a

post-verdict motion.” Ford v. Cnty. of Grand Traverse, 535 F.3d 483, 492-93 (6th Cir. 2008)

(quoting Kusens v. Pascal Co., Inc., 448 F.3d 349, 361 (6th Cir. 2006)). 

“In diversity cases, when a Rule 50 motion for judgment as a matter of law is based on a

challenge to the sufficiency of the evidence, this Court applies the standard of review used by the

courts of the state whose substantive law governs the action.” Kusens, 448 F.3d at 360 (citing

Morales v. Am. Honda Motor Co., 151 F.3d 500, 506 (6th Cir. 1998), and K & T Enters., Inc. v.

Zurich Ins. Co., 97 F.3d 171, 176 (6th Cir. 1996)); see also Betts v. Costco Wholesale Corp., 558

F.3d 461, 466 (6th Cir. 2009). Under Michigan law, “[t]he standard of review for judgments

notwithstanding the verdict requires review of the evidence and all legitimate inferences in the light

most favorable to the nonmoving party.” Orzel by Orzel v. Scott Drug Co., 449 Mich. 550, 557, 537

N.W.2d 208, 212 (1995). “‘The motion may be granted only if in viewing the evidence in the light

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most favorable to the non-moving party, there is no genuine issue of material fact for the jury, and

reasonable minds could come to but one conclusion, in favor of the moving party’. . . . Neither the

district court nor the reviewing court may reweigh the evidence or assess the credibility of

witnesses.” Radvansky v. City of Olmsted Falls, 496 F.3d 609, 614 (6th Cir. 2007) (quoting Gray

v. Toshiba Am. Consumer Prods., Inc., 263 F.3d 595, 598 (6th Cir. 2001)); see also Parker v. Gen.

Extrusions, Inc., 491 F.3d 596, 602 (6th Cir. 2007). “[I]f there is evidence in the record from which

the jury could reasonably find [for the non-moving party,] the Court must respect the jury’s verdict

and deny the [movant’s] motion for new trial.” Bourgeois, 501 F. Supp. 2d at 986-87.

The main — in fact the only — premise of the plaintiff’s Rule 50(b) motion is that the sole

issue before the Court was whether the plaintiff’s condition and care needs had changed from the

time of the verdict in the first trial and the defendant failed to provide any evidence on that issue.

The plaintiff argues that he presented the only evidence on the issue and that his evidence supported

a lack of change. 

The plaintiff is incorrect on two counts: the change (or lack thereof) in his condition was not

the only issue to be resolved by the jury, and even if it were, the defendant presented sufficient

evidence of the plaintiff’s changed circumstances to support the jury’s verdict. The plaintiff did not

cite the trial record to support his argument. In contrast, in its response to the plaintiff’s motion, the

defendant highlighted the following points of evidence from the record tending to show changed

conditions:

• Dr. Perlman admitted that he had improperly testified at the first trial about the

plaintiff’s catheter. Def.’s Resp. at 6 & Ex. B, Trial Testimony of Dr. Perlman at

191-92. 

• Dr. Perlman testified that the 24-hour-care prescription was due to the plaintiff’s

tracheotomy and related care issues, and that care could be scaled back if the plaintiff

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was removed from the ventilator, which happened during the period of time at issue

in this trial. Id. at 6, Ex. C, Trial Testimony of Dr. Perlman at 157-58, Ex. D, Trial

Testimony of Andrew Bonkowski at 730. 

• The first trial did not include evidence of dental care neglect, while the second trial

did. Id. at 6.

• Paula Nault testified that she did not believe that the plaintiff had the same medical

issues now that he previously did, specifically noting his new dental condition. Id.

at 6 & Ex. F-G, Trial Testimony of Paula Nault at 978 & 990.

• Andrew Bonkowski testified that the plaintiff’s cognitive abilities had improved and

that he no longer required a pic-line. Id. at 6, Ex. D, Trial Testimony of Andrew

Bonkowski at 730, Ex. E, Trial Testimony of Andrew Bonkowski at 731. 

• Testimony from Debra Yeary and Dr. Jefrey Fishman showed that the plaintiff’s skin

ulcers, an issue at the first trial, had since healed. Id. at 7. 

• Nora Vinic testified that she would classify Andrew Bonkowski as no more than a

high tech aide after reviewing the plaintiff’s treatment during the period at issue in

this case. Ibid. & Ex. H, Trial Testimony of Nora Vinic at 1106. 

The defendant also listed several medical issues from the first trial that were no longer issues during

the second trial, including: a right segmental fibula fracture, a right distal third tibia fracture, a left

mid-shaft tibia fracture, presumed cervical fractures, respiratory failure and requirement for

ventilator support, the requirement for cardiopulmonary bypass or rewarming, the need for

intramedullary nailing, percutaneous gastronomy tube, malnutrition, and chemical pancreatitis. The

defendant also pointed to improvements in the plaintiff’s medical paraphernalia and treatment

options, including botox injections and an arm brace to improve his range of motion, a new

wheelchair with better pressure points, a decrease in the size of his decubitus ulcer, a decrease in the

frequency of his doctor’s appointments, and the ability to use a computer. 

Viewing the evidence and drawing all reasonable inferences in the light most favorable to

the defendant, see Orzel, 449 Mich. at 557, 537 N.W.2d at 212, the defendant has presented several

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examples of major changes in the plaintiff’s condition that could affect the care he required and was

provided. At minimum, that creates a fact issue for the jury; the Court cannot conclude that

reasonable minds could reach only one conclusion in favor of the plaintiff. Radvansky, 496 F.3d at

614. Since there is evidence in the record supporting the jury’s verdict, the Court must deny the

plaintiff’s renewed motion for judgment as a matter of law. Bourgeois, 501 F. Supp. 2d at 986-87.

In addition, the plaintiff again argues that the issues in this case are identical to those in the

prior case and that the jury should not have been allowed to redetermine the value of reasonable

care. The Court previously addressed that issue when it denied the plaintiff’s motion for partial

summary judgment and concluded that the second complaint covered a different time period than

the first complaint in state court. Therefore, the issues before the Court were not identical to those

previously tried and collateral estoppel did not preclude the jury’s consideration of those issues in

this Court. The plaintiff has provided no new argument and pointed to no new authority to change

the Court’s decision on this issue. Instead, the plaintiff cited only Manley v. DAIIE, 425 Mich. 140,

388 N.W.2d 216 (1986), and Juzba v. State Farm Mut. Auto. Ins. Co., No. 283820, 2009 WL 794683

(Mich. App. Mar. 26, 2009), which the Court previously considered in denying the plaintiff’s motion

for partial summary judgment. 

Therefore, the plaintiff’s argument that the only issue before the Court was a change in

circumstances lacks merit. The defendant provided evidence of the plaintiff’s changed condition

and care needs and the poor care provided by Andrew Bonkowski and pointed to those trial excerpts

in its response. Viewing the evidence in the light most favorable to the defendant, there was

sufficient evidence to support the jury’s verdict. The plaintiff’s motion for judgment as a matter of

law will be denied.

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III. Motion for new trial

The plaintiff seeks a new trial for six reasons, which can be grouped into the following

categories: 

1. The improper denial of a jury instruction on changed circumstances.

2. The improper introduction of evidence concerning the plaintiff’s medical condition

during the period of time at issue in the first trial, and the improper exclusion of the

jury’s verdict as evidence on the morning of trial.

3. The defense counsel’s improper arguments lambasting plaintiff’s counsel and the

jury in the first trial.

Rule 59 permits a Court to grant a new jury trial “for any reason for which a new trial has

heretofore been granted in an action at law in federal court.” Fed. R. Civ. P. 59(a)(1)(A); see also

Bourgeois, 501 F. Supp. 2d at 985. Although Rule 59 does not specify the grounds for granting a

new trial, courts have determined that “a new trial is warranted when a jury has reached a ‘seriously

erroneous result’ as evidenced by: (1) the verdict being against the weight of the evidence; (2) the

damages being excessive; or (3) the trial being unfair to the moving party in some fashion, i.e., the

proceedings being influenced by prejudice or bias.” Holmes v. City of Massillon, Ohio, 78 F.3d

1041, 1045-46 (6th Cir. 1996); see also Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251

(1940). This Court also has the discretion to consider other grounds “‘rais[ing] questions of law

arising out of substantial errors in admission or rejection of evidence or instructions to the jury.’”

Bourgeois, 501 F. Supp. 2d at 985 (quoting Montgomery Ward, 311 U.S. at 251). “The absence of

specific grounds should not obscure the governing principle. The court has the power and duty to

order a new trial whenever, in its judgment, this action is required in order to prevent injustice.”

Wright, Miller, & Kane, Federal Practice and Procedure § 2805.

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“In considering a motion for a new trial on the ground that the verdict is against the weight

of the evidence, the court is not to set aside the verdict simply because it believes that another

outcome is more justified. [Instead,] [t]he court is to accept the jury’s verdict if it is one which

reasonably could have been reached.” Denhof v. City of Grand Rapids, 494 F.3d 534, 543 (6th Cir.

2007) (citations and quotations omitted). The Sixth Circuit has repeatedly cautioned that “close

scrutiny” is necessary in this situation. See, e.g., ibid.; Duncan v. Duncan, 377 F.2d 49, 54 (6th Cir.

1967). “The Supreme Court has noted that ‘the authority of trial judges to grant new trials’ pursuant

to Rule 59(a) ‘is large.’” Bell v. Johnson, 404 F.3d 997, 1002 (6th Cir. 2005) (quoting Gasperini v.

Ctr. for the Humanities, Inc., 518 U.S. 415, 433 (1996)).

A. Jury Instructions

Federal Rule of Civil Procedure 51 governs jury instructions in federal court and requires

that “[a] party who objects to an instruction or the failure to give an instruction must do so on the

record, stating distinctly the matter objected to and the grounds for the objection.” Fed. R. Civ. P.

51(c)(1). The objection must be made “out of the jury’s hearing before the instructions and

arguments are delivered.” Fed. R. Civ. P. 51(b)(2). The rule also states that “[a] party may assign

as error . . . a failure to give an instruction, if that party properly requested it and — unless the court

rejected the request in a definitive ruling on the record — also properly objected.” Fed. R. Civ. P.

51(d)(1)(B). 

The failure of a party to object in this manner is viewed by many courts as a waiver of the

party’s objection to the jury instruction. See, e.g., Ford v. Cnty. of Grand Traverse, 535 F.3d 483,

493-94 (6th Cir. 2008) (determining that the defendant had waived its jury instructions argument

because it had not raised it in a pre-verdict motion for judgment as a matter of law and had failed

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to request or offer jury instructions on its theory of municipal liability or to object to the jury

instructions without this language); Clarksville-Montgomery Cnty. School Sys. v. U.S. Gypsum Co.,

925 F.2d 993, 1006 (6th Cir. 1991) (“We first note that Clarksville’s failure to object to a specific

charge before and after the jury charge is given constitutes waiver of the objection.” (citing Murphy

v. Owens-Ill., Inc., 779 F.2d 340, 345-46 (6th Cir.1985)); see also Hisrich v. Volvo Cars of N. Am.,

Inc., 226 F.3d 445, 450, 453 (6th Cir. 2000) (determining that the plaintiff had properly requested

a failure-to-warn instruction on the record and had not waived this request; since the district court’s

decision to deny this request was improper, the appellate court remanded the case for a new trial).

Nonetheless, “[a]lthough the language of Rule 51 suggests that litigants must timely ‘use it

or lose it,’ a litigant’s failure to object to a jury instruction does not create a jurisdictional bar to

review.” Reynolds v. Green, 184 F.3d 589, 594 (6th Cir. 1999) (citing City of Springfield v. Kibbe,

480 U.S. 257, 259 (1987)). Rule 51 allows consideration of an unpreserved jury instruction

argument under a plain error standard if the “error in a jury instruction is obvious and prejudicial.”

Sovereign Order of Saint John of Jerusalem, Inc. v. Grady, 119 F.3d 1236, 1243 (6th Cir. 1997)

(citing Chonich v. Wayne Cnty. Cmty. Coll., 973 F.2d 1271, 1275 (6th Cir. 1992); Fed. R. Civ. P.

51(d)(2); Young v. Langley, 793 F.2d 792, 795 (6th Cir. 1986)). However, a jury instruction error

that is harmless will not furnish a basis for relief. Johnson Controls, Inc. v. Jay Indus., Inc., 459

F.3d 717, 727 (6th Cir. 2006). 

Timing is important. As the Sixth Circuit recently explained:

At a minimum, the Federal Rules of Civil Procedure require at least one objection

on the record to preserve an issue for review under a standard less stringent than that

of plain error. See Fed. R. Civ. P. 51(c), (d). Moreover, we have long held that in

order to avoid waiver, an objection must not only be made prior to the jury’s being

charged, but also renewed after it is charged. “‘The law in this circuit generally

requires a formal objection, which should in most circumstances be made both before

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and after the jury instructions are read to the jury.’” Rogers v. Norfolk Southern Ry.

Co., 126 F. App’x 694, 697 (6th Cir. 2005) (quoting Preferred RX, Inc. v. Am.

Prescription Plan, Inc., 46 F.3d 535, 547 (6th Cir. 1995)). And “[c]ounsel’s failure

to make an objection at trial ‘results in a waiver of the objection advanced on appeal,

and the jury verdict can be reversed only for plain error.’” Id.

Scott v. Miller, 361 F. App’x 650, 653 (6th Cir. 2010). 

In the present case, the plaintiff failed to object to the instruction he now challenges prior

to the Court instructing the jury. However, following jury instructions, the Court went back on the

record without the jury in the courtroom and plaintiff’s counsel raised his objection to the lack of

an instruction on changed circumstances. Because Rule 51 requires the party to object “out of the

jury’s hearing before the instructions and arguments are delivered,” Fed. R. Civ. P. 51(b)(2)

(emphasis added), the Court may consider the plaintiff’s objection to be waived, see, e.g., Ford, 535

F.3d at 493-94; Clarksville-Montgomery Cnty. School Sys.., 925 F.2d at 1006. 

Even if the argument is not waived, it lacks merit. As noted above, the issues before the

Court were not limited to the change in the plaintiff’s care requirements, but they also included the

care he required and received during the time period following the first trial and whether the amount

of benefits he requested for that care was reasonable. The jury instruction the plaintiff requested

before trial was:

Defendant Allstate Insurance Company has the burden of proof on its defense

that there has been a substantial change in the facts and circumstances in Shaun

Bonkowski’s need for attendant care.

You are instructed that the reasonable value of the attendant care services

provided by Andrew Bonkowski for Plaintiff Shaun Bonkowski has been determined

in the past to be $2,140,810.00 for 1,666 days of attendant care service. Defendant

has the burden of proving the following:

(a) That there has been a substantial change in the facts and circumstances

in Shaun Bonkowski’s need for attendant care services since July 7, 2006 and

(b) if there has been a substantial change in the facts and circumstances in

Shaun Bonkowski’s need for attendant care services since July 7, 2006, the change

in the reasonable value of the care.

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Pl.’s Proposed Jury Inst. at 4. The only authority the plaintiff cited in support of that statement of

the law was Manley v. DAIIE, 425 Mich. 140, 388 N.W.2d 216 (1986). Manley certainly discussed

the idea that injured persons and insurance companies “are entitled to a redetermination from time

to time of the amounts properly allowable for nurse’s aides or for room and board, including the

services of the [family members].” Id. at 158, 388 N.W.2d at 224. However, the portions of Manley

that discuss review for change in circumstances, which the plaintiff cited in his brief, do not address

which party has the burden of proof on that issue. The proposed instruction assigns the burden to

the defendant without any legal support for that proposition. The plaintiff pointed to none and the

Court did not locate any. Therefore, the Court properly denied the requested jury instruction, and

the denial did not affect the substantial rights of the plaintiff. Furthermore, the plaintiff has

presented no evidence or argument that he was prejudiced by this decision. 

B. Evidentiary Issues

Rule 59 permits a court to grant a new trial where the trial was unfair to the movant, or the

proceedings were influenced by prejudice or bias, see Holmes, 78 F.3d at 1045-46, but not every

trial error warrants a new trial:

No error in either the admission or the exclusion of evidence and no error or defect

in any ruling or order or in anything done or omitted by the court or by any of the

parties is ground for granting a new trial or for setting aside a verdict or for vacating,

modifying, or otherwise disturbing a judgment or order, unless refusal to take such

action appears to the court inconsistent with substantial justice. The court at every

stage of the proceeding must disregard any error or defect in the proceeding which

does not affect the substantial rights of the parties.

Kulling v. Grinders for Indus., Inc., 185 F. Supp. 2d 800, 804 (E.D. Mich. 2002) (quoting Fed. R.

Civ. P. 61 (1937)). 

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The plaintiff argues that the Court improperly excluded evidence of the jury verdict from the

first trial. That is not quite accurate. In its order on August 18, 2010, the Court allowed the plaintiff

to “introduce evidence that the defendant paid reimbursement for attendant care benefits, but may

not introduce evidence of the jury verdict in the prior state court trial as proof of the reasonable

value of these benefits. The plaintiff may introduce . . . the jury verdict as evidence for a different

purpose after obtaining the Court’s permission on the record.” The record indicates the Court found

the introduction of a specific amount or rate of care for a different time period to be prejudicial to

the defendant and would mislead the jury in determining the reasonable value of the plaintiff’s care

for the period of time at issue in this case. As it turned out, however, evidence of the prior jury

verdict was received in evidence on the question whether Allstate’s failure to pay an attendant care

rate higher than $19 was unreasonable such that it also would be liable for penalty interest and

attorney’s fees.

The Court believes that limiting the purpose of the evidence of the prior jury verdict was the

correct and most prudent course of action. The issue in the case focused on the reasonable value of

attendant care Andrew Bonkowski provided to his son during the relevant time period, which did

not overlap the period covered by the earlier verdict. Under the No-Fault Act, the plaintiff was

required to prove that the amount he claimed for attendant care reimbursement was reasonable,

necessary, and incurred. There was evidence that his condition and circumstances had changed, so

the argument that the prior jury verdict compelled a particular hourly rate for the care, when that rate

was derived from an unknown formula apparently used by a jury in a different although related case,

carried the danger of misleading the jury as to its assigned task. The Court may exclude evidence

or limit its use when it poses a “likelihood of misleading the jury and confusing the issues.”

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Olin-Mathieson Chem. Corp. v. Allis-Chalmers Mfg. Co., 438 F.2d 833, 838 (6th Cir. 1971). The

Sixth Circuit has explained:

Evidence of a prior verdict is likely to mislead the jury because “[a] jury is likely to

give a prior verdict against the same defendant more weight than it warrants.

Admission of a prior verdict creates the possibility that the jury will defer to the

earlier result and thus will, effectively, decide a case on evidence not before it.” In

essence, the jury may “import the whole verdict . . . from the prior proceeding.” 

Blakely v. City of Clarksville, 244 F. App’x 681, 684 (6th Cir. 2007) (citations omitted).

Of course, the jury did learn of the prior verdict, and plaintiff’s counsel argued that the

hourly rate he derived from it should have served as a benchmark that Allstate should not have

disregarded. That argument was properly directed toward the question whether Allstate’s attendant

care payments were overdue, a question, as it turns out, the jury did not have to reach because the

plaintiff failed to persuade it that the value of the attendant care furnished by Andrew Bonkowski

exceeded $19 per hour. But limiting the jury’s use of the evidence was proper, and it does not

provide a ground for a new trial.

Plaintiff’s counsel also complains that the timing of the Court’s ruling on that evidentiary

issue caused him distress that altered the presentation of his case unreasonably. That argument is

not well taken. The Court originally ruled on motions in limine filed in accordance with the

scheduling order at the final pretrial conference, which was two weeks prior to trial. The Court

indicated an intention to allow the jury to hear evidence of the prior jury verdict as evidence of the

value of the attendant care in this case. The defendant moved for reconsideration, and on the

morning of jury selection, the Court heard additional arguments on the subject and announced its

ruling limiting the use of the evidence. Plaintiff’s counsel then asked for additional time to adjust

his opening statement to account for the ruling, and the Court agreed to proceed with jury selection

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and defer opening statements to the following morning. The next morning, plaintiff’s counsel

changed his mind and asked for a mistrial. The Court denied the request because plaintiff’s counsel

could not identify any prejudice that would inure to the presentation of his case, which he had been

preparing for two years, from the alteration of a ruling made two weeks earlier.

Although at the time of the mistrial motion the jury had been selected, it had not been sworn.

The proper motion, therefore, would have been for a continuance. The Court treated the motion as

such. Generally speaking, the district court has great discretion in controlling its trial docket, and

a request for a continuance is addressed to the court’s discretion. Perkins v. American Elec. Power

Fuel Supply, Inc., 246 F.3d 593, 605 (6th Cir. 2001); Anderson v. Sheppard, 856 F.2d 741, 748 (6th

Cir. 1988) (“The matter of continuance is traditionally within the discretion of the trial judge.”

(internal quotations omitted)); see also United States v. Warshak, 631 F.3d 266, 298 (6th Cir. 2010);

Lockett v. Arn, 740 F.2d 407, 413 (6th Cir. 1984). Factors for the Court to consider in determining

whether to grant a continuance include whether the moving party has demonstrated that he would

be prejudiced by the denial of the motion and whether “additional time would have produced

additional evidence or witnesses.” Perkins, 246 F.3d at 605-06. An abuse of discretion exists only

if “‘the denial [of the continuance] was made without a rational explanation, inexplicably departed

from established policies, or rested on an impermissible basis such as invidious discrimination.’”

Ilic-Lee v. Mukasey, 507 F.3d 1044, 1047 (6th Cir. 2007) (quoting Abu-Khaliel v. Gonzales, 436

F.3d 627, 634 (6th Cir. 2006)). In this case, the Court explained in detail on the record its reasons

for proceeding with the trial after the jury had been selected and an overnight continuance had

already been granted at the plaintiff’s request. Relief from the denial of a continuance is not

warranted absent a showing of actual prejudice. United States v. Pacheco, 466 F. App’x 517, 522

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(6th Cir. 2012). In this case, plaintiff’s counsel argued that he would have to change his trial

strategy, which would entail a different approach to cross-examining the defendant’s claims adjuster,

and perhaps calling his witnesses in a different order. Those are the sorts of adjustments that

seasoned trial counsel deal with regularly. Even in hindsight, plaintiff’s counsel has not identified

any prejudice that resulted from the timing of the Court’s evidentiary ruling.

The plaintiff also contends that evidence of attendant care provided during the earlier period

should not have been allowed because it was irrelevant and prejudicial. However, evidence of the

earlier care was pertinent to the issues of the level of care needed during the prior period and any

change in that level that might have occurred, Andrew Bonkowski’s degree of skill in furnishing the

care and its impact on the value of that care, and the relative needs of the plaintiff during the

comparative periods. The evidence was not improperly admitted.

The general rule is that “[n]o error in either the admission or the exclusion of evidence . . .

is ground for granting a new trial . . . unless refusal to take such action appears to the court

inconsistent with substantial justice.” Kulling, 185 F. Supp. 2d at 804. The Court finds no basis to

grant a new trial on the ground that evidentiary rulings were erroneous.

C. Defense counsel’s arguments

The plaintiff also argues that the Court improperly allowed the defense counsel to turn this

trial into an impeachment of the plaintiff’s counsel and of the previous jury. This argument is

difficult to assess because the plaintiff failed in his motion to identify any points of defense

counsel’s argument or trial testimony that were improper or any times when plaintiff’s counsel

objected to such statements. To succeed on this motion, the plaintiff bears the heavy burden of

making “a concrete showing that the misconduct of counsel consistently permeated the entire trial

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from beginning to end.” Sutkiewicz v. Monroe Cnty. Sheriff, 110 F.3d 352, 361 (6th Cir. 1997);

Shabazz v. Martin, No. 00-73005, 2007 WL 2782054, at *1 (E.D. Mich. Sept. 24, 2007) (citing City

of Cleveland v. Peter Kiewit Sons’ Co., 624 F.2d 749, 756 (6th Cir. 1980); In re Air Crash Disaster,

86 F.3d 498, 524 (6th Cir. 1996)). The complaining party must make a timely objection, and even

where a party makes the necessary objections, he also must show that opposing counsel’s arguments

were prejudicial and influenced the jury’s verdict. Fuhr v. Sch. Dist. of the City of Hazel Park, 364

F.3d 753, 760 (6th Cir. 2004). The plaintiff has failed to carry this burden of showing that defense

counsel’s conduct “permeated the entire trial.” By failing to point to any citations in the trial record,

the plaintiff also has failed to carry his burden of demonstrating prejudice from the comments.

Therefore, the Court is unable to find a “reasonable probability that the verdict . . . has been

influenced by such conduct.” Twachtman v. Connelly, 106 F.2d 501, 509 (6th Cir. 1939); see also

Peter Kiewit Sons’ Co., 624 F.2d at 756. 

IV. Motion for sanctions

The plaintiff also has moved under Rule 11 for sanctions against the defendant, arguing that

the defendant improperly denied or alleged lack of sufficient information in response to 29

allegations in the complaint, when the defendant allegedly had this very information in its claim file

or from the prior trial in this case. The defendant responds that the period of time alleged in the

complaint is different than the period covered by the previous lawsuit, and the defendant is not

required to concede a litany of admissions when it seeks to contest the reasonable value of the

attendant care for the new period.

Under Rule 11, when an attorney signs an answer to a complaint, he certifies that “the

denials of factual contentions are warranted on the evidence or, if specifically so identified, are

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reasonably based on belief or a lack of information.” Fed. R. Civ. P. 11(b)(4). Signing a pleading

carries consequences. “If, after notice and a reasonable opportunity to respond, the court determines

that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law

firm, or party that violated the rule or is responsible for the violation.” Fed. R. Civ. P. 11(c)(1). 

In the Sixth Circuit, “the test for whether Rule 11 sanctions are warranted is whether the conduct

for which sanctions are sought was ‘reasonable under the circumstances.’” Salkil v. Mount Sterling

Twp. Police Dep’t, 458 F.3d 520, 528 (6th Cir. 2006) (quoting Ridder v. City of Springfield, 109

F.3d 288, 293 (6th Cir. 1997)). “[B]efore an award of attorneys’ fees may be made under the rule,

it must be shown that the fees were incurred because of the filing of an improper pleading.”

Bodenhamer Bldg. Corp. v. Architectural Research Corp., 989 F.2d 213, 218 (6th Cir. 1993).

The complaint in this case contains detailed factual allegations concerning Shaun

Bonkowski’s accident, the treatment he received thereafter, his physical condition, and the care

provided by his father. Compl.¶¶ 6-8, 11-22, 24-29, 33-39, 43. The defendant stated in its answer

that it could not admit most of these allegations because it lacked sufficient information.

In paragraphs 6, 8, 33, 34, 35, 36, and 38 of the plaintiff’s complaint, the plaintiff alleges that

the defendant is obligated to pay insurance benefits to the plaintiff, that the plaintiff has fully

complied with the insurance policy terms, that the plaintiff has provided reasonable proof that he

incurred allowable expenses on a 24-hour basis, that the plaintiff provided reasonable proof of the

plaintiff’s amount of loss incurred on a 24-hour basis, that the plaintiff provided reasonable proof

that the plaintiff’s amount of loss on a 24-hour basis was $53.50, and that the defendant has refused

to pay all of the attendant care benefits to the plaintiff even though the plaintiff fully complied with

his insurance policy. 

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The defendant justified its claims of insufficient knowledge with respect to those allegations

by arguing that the defendant’s obligation to pay benefits was contingent upon the plaintiff’s

reasonable proof, which the plaintiff did not furnish. It is reasonable for the defendant to assert a

lack of knowledge where it also contests the reasonableness of the proof provided by the plaintiff.

Furthermore, in denying the plaintiff’s motion for partial summary judgment, the Court noted that

the present lawsuit involved a different time period than that covered by the previous trial.

Therefore, the proof provided in the previous trial may not adequately support the fees requested in

the present complaint and it would not necessarily be improper for the defendant to deny knowledge

of those allegations.

The plaintiff has not attempted to demonstrate how the defendant’s alleged

misrepresentations caused the plaintiff to incur a greater amount of attorney fees nor has he detailed

the allegedly increased fees he incurred. Therefore, the plaintiff is not entitled to sanctions based

on these paragraphs of the defendant’s answer.

Paragraphs 7 and 25 of the plaintiff’s complaint allege that the plaintiff delivered the

application for benefits to the defendant and that the plaintiff cannot be “left without this care” for

any period of time because he would be exposed to life-threatening complications. The defendant’s

assertion that it lacked sufficient information was reasonable under the circumstances. That the

plaintiff “caused to be delivered” the appropriate notification is vague because it could mean that

either the plaintiff himself delivered it (even though he was incapacitated at the time) or that he told

someone else to deliver it. The defendant’s confusion was reasonable and it appropriately answered

the plaintiff’s allegation. Moreover, the statement that the plaintiff cannot be “left without this care”

is also vague because it does not specify which care. It is reasonable for the defendant to assert that

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it lacks sufficient information on this allegation due to vagueness. As such, the defendant did not

violate Rule 11 with respect to these answers.

Allegations in paragraphs 11 through 21 of the plaintiff’s complaint allege various facts from

the night of the accident, the morning after the accident, the extent of the plaintiff’s injuries

immediately following the accident, the plaintiff’s treatment, and other specific factual details

surrounding the accident and the plaintiff’s immediate recovery. Allstate was not present during or

immediately following the accident. The only information that Allstate has regarding the accident

itself came from the plaintiff. Since the defendant lacks any personal knowledge of the

circumstances surrounding the accident, it was reasonable for the defendant to assert that it lacked

sufficient information. Rule 11 sanctions are not warranted.

Paragraphs 22 and 24 of the plaintiff’s complaint allege that the plaintiff’s father, Andrew

Bonkowski, learned and provided all of the care necessary to enable the plaintiff to live at home on

a twenty-four hour basis since the plaintiff’s discharge from the hospital. The level of care provided

by Andrew Bonkowski and the amount of time Andrew provided this care are contested issues in

this case. The defendant has pointed to evidence that the plaintiff’s step-mother provided care in

lieu of the plaintiff’s father and that the plaintiff’s father provided negligent care. Because those

issues are contested in the record, the defendant reasonably asserted that it lacked sufficient

information to answer those allegations with specificity. Although it would have been preferable

simply to deny the allegations and explain the denial, asserting that the defendant lacked sufficient

knowledge is not inaccurate. Rule 11 sanctions are not appropriate based on the defendant’s

response to paragraphs 22 and 24 of the complaint.

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Paragraph 29 of the plaintiff’s complaint alleges that the defendant can only ask for

reimbursement from its reinsurer for those amounts determined to be reasonable and necessary. The

defendant argues that the plaintiff misstates the law and that under Michigan Compiled Laws

500.3104, an insurer can be reimbursed for 100% of any PIP benefits paid pursuant to a jury verdict

even if they are not reasonable and necessary. Although it would have been more appropriate for

the defendant to deny the allegation outright, there is no suggestion that the answer to that paragraph

multiplied the cost of litigation. Sanctions are not appropriate for the defendant’s answer to

paragraph 29 of the complaint.

Paragraph 39 of the plaintiff’s complaint alleges that the plaintiff made an early demand on

the defendant to comply with the Michigan No-Fault Act. The defendant avoids the question by

asserting that it has fully complied with the No-Fault Act and that the plaintiff has not done the

same. However, that does not entirely respond to the complaint’s allegation. The defendant would

certainly know if it received an early demand to comply with the Michigan No-Fault Act. However,

the defendant’s argument actually seems to assert its belief that the plaintiff’s demand was not

reasonable or sufficient to allow the defendant to comply with the Act. As noted above, the

reasonableness of the proofs offered is a contested factual issue in this matter; therefore, the

defendant’s response was not unreasonable. Moreover, as noted above, the plaintiff has not

demonstrated or even argued that he has been forced to incur additional attorney’s fees due to the

defendant’s answer and, therefore, he cannot collect attorney fees. Sanctions are not warranted for

this response to the plaintiff’s complaint.

Paragraph 43 of the plaintiff’s complaint alleges that the defendant is responsible for the

necessary modifications to his residence and related living expenses. The defendant again argues

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that the plaintiff has failed to provide reasonable proof that the modifications were incurred as a

result of the accident. That factual issue is contested and, for the reasons noted above, the

defendant’s answer is reasonable. In addition, the plaintiff has failed to prove that this

misrepresentation caused him to incur additional attorney’s fees and the plaintiff cannot collect

attorney fees for this reason. Sanctions are not appropriate for this paragraph of the defendant’s

answer.

The Court does not find a basis in the defendant’s answer to the complaint to award sanctions

against it.

V. Conclusion 

The evidence at trial supports the jury’s verdict. There is no valid bases to enter a judgment

as a matter of law as requested by the plaintiff. The trial was fair and did not result in a miscarriage

of justice. A new trial, therefore, is not warranted. There is no basis to award sanctions against the

defendant for its answer to the complaint.

Accordingly, it is ORDERED that the plaintiff’s renewed motion for judgment as a matter

of law or new trial [dkt. #147] is DENIED.

It is further ORDERED that the plaintiff’s motion for sanctions [dkt. #114] is DENIED.

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: July 20, 2012

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PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on July 20, 2012.

s/Deborah R. Tofil 

DEBORAH R. TOFIL

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