NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0780n.06
No. 12-2038
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT SHAUN B ONKOWSKI , ) ) ON APPEALFROM THE U NI TED Plaintiff-Appellant, ) STATES DI STRI CT COURT FOR ) THE EASTERN DI STRI CT OF v. ) MI CHI GAN ) AL L STATE I

NSURANCE COMPANY, ) An I llinois I nsuranc e Company , ) OPI NI ON ) Def endant- Appellee

. )

Be fore : MOORE and GRI FF I N, Circuit J udg es; and SARGUS, District J udg e. *
SARGU S, District Judge. This case arose from Plaintiff-Appellant Shaun Bonk o wski’s cl aim for insurance benef its under Michig an’s No-F ault I nsuranc e Act, Mich. Comp. L aw s §
500.3101 et seq. , which entitles him to, inter alia , the cost of attendant car e provided to him by his fathe r, Andrew Bo n k o ws ki. Fr om 2001 throug h the filing of this action in 2008, DefendantAppellee Allstate I nsuranc e Company (“A llstate”) compensa ted Appellant’s fathe r at $166,440.00
per y ear for the attendant car e of Appellant, who was rende red a quadripleg ic in 2001. I n this action, Appellant seeks additional attendant car e benef its. The district court denied Appellant’s motion for

s u m m ary judgme nt and the case proce eded to trial to deter mine the rea sonable pay due to M r. Bonkow ski. The jury returne d a verdic t in favor of Allstate, finding that no additional amount was due Mr. Bonkow ski. After the trial, the district court denied Appel l an t’s rene wed motion for

The Honora

ble Edmund A. Sarg us, J r., United States District J udg e for the Southern District * of Ohio, sitting by

desig nation.No. 12-2038

Bonkowski v. Allstate InsuranceCo. judgme nt as a matter of law, in which he argued that there was insufficient evidenc e to support the jury verdic t. I n the same post-trial motion, Appellant moved for a new trial based o n t h e district
court’s denial o f h i s reque st to prese nt a cer tain jury instruction proposed by Appellant and a particula r evidentiar

y ruling made by

the district court. Appe llant now appea ls the district court’s denials of these motions. For the re asons that follow, we AF F IRM the district court’s de cisions.

I.
A. F acts On J une 3 , 2 0 0 1 , whi le walking home, Appellant was struck by a motor vehicle whose unknown driver fled the scene . Appellant was found in the ear ly morning hours of J une 4, 2001, in the ditch of hi s fr o n t l aw n afte r having rema ined outside, unconscious, in forty to fifty deg ree

wea ther. He was life-f

lighted to the hospital, wher e he rema ined for more than two months, underg oing multipl e surg erie s to his leg s and cer vical spine. He was eig hteen y ear s old at the time of the a ccide nt. On Aug ust 14, 2001, Appellant was transfe rre d to Craig Hosp i t al i n Denve r, Colorado, a premier cente r for specia lty reha bilitation and rese arc h for spinal cord and traumatic brain injuries.
On Aug ust 8, 2001, Dr. Mark P. Cilo of Craig Hospital descr i bed Appellant’s rema ining medical i ssues to include a spinal cord injury with quadripleg ia; traumatic brain injury complicated b y prolo n ged h y

pothermia and probably hy pox ia with retrog rade amnesia of less than twenty -four hours; loss of consciousness of approximately two day s and posttraumatic amnesia of sever al wee ks;

a history of subdural hematoma; respiratory failure requiring ventilator support; prolong ed hy pothermia requirin g car diopulmonary by pass for rew arming ; bilatera l tibial fra cture s requiring 2No. 12-2038

Bonkowski v. Allstate InsuranceCo. post intramedullary nailing; a neurog enic bladder requiring an urethra l cathe ter; a neurog enic bowel;

a perc utaneous g astrostomy tube in place for fee dings; malnutr i t i o n d u e t o poor intake and poor toleranc e of tube fee dings; rec urre nt feve rs and pneumonias, with multipl e antibiotics p ro v i d ed;

contra cture s in both upper extremiti es; anxiety and depre ssion; and sever e pain due to his multiple problems, par

ticularly contra cture s. Craig Hospital educa

ted and trained Mr. Bonkow ski to provide for his son’s car e. Ex amples include providing daily manual bowel evac uation (an invasive trea tment re q u i ri n g knowledg e of body handling and positioni ng ), bladder car e, medication assistance , and transfe r assistance

. Since Appel l an t ’s d i schar g e from Craig Hospital on Dec ember 1, 2001, he maintains that his fathe r has

car ed for him twenty -four

hours a da

y , seven da

y s a we ek, in ac corda

nce w ith the training and the
presc riptions of

his phy sicians. Allstate compe nsated Mr. B onkowski at $166,440.00 per y ear for the attendant car e, which is equivalent to an hourly rate of $19.00, for twenty -four hours a day , seven day s a we ek. B. Michigan’s No-F ault Ins urance Ac t Allstate is the first party no-fa ult insurer of Appellant. Michig an’s No-F ault I nsuranc e Act,
M i ch

. C o m p . L aws § 500.3101 et seq. , abolished third party tort liability for cer tain economic damag es arising out of a motor vehicle acc ident and provided a substitut e v i a p ri v at e insurance

. These economic damag es include wa ge l oss below the statutory limit , medical costs, and other allowable expenses, i n cludi ng “re asonable char g es incurre d for rea sonably nece ssary products, service s and acc ommodations for an injured person’ s car e, rec overy , or reha bilitation,” collectively kno wn as Personal I njury Protection benef its. See Mich. Comp. L aws §§ 500.3107-.3110; In re 3No. 12-2038

Bonkowski v. Allstate Insurance Co. 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 (1997) (citations omitted). Three requirements must be satisfied to hold a no-fault insurer responsible for benefits for care provided by a family member: (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 be reasonable. Nasser v. Auto Club Ins. Ass’n , 435 Mich. 33, 50 (1990). The burden is on a plaintiff to prove that the expenses were reasonable under the circumstances. Id.
at 49. C. State Court Litigation Litigation between Allstate and the Bonkowskis began in state court on October 4, 2001 (“ Bonkowski I

”), and addressed Appellant’s expenses incurred from the time he was at Craig Hospital. That case was heard by a jury, which rendered its verdict on July 7, 2006. On the question of the value of the attendant care provided by Mr. Bonkowski 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. Allstate filed an appeal, in which it argued that the there was insufficient evidence upon which a jury could have based its verdict. The Michigan Court of Appeals disagreed, explaining: 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 4No. 12-2038

Bonkowski v. Allstate InsuranceCo.

car e prof essional, but ample evide nce w as presented to support the c onclusion that Andre w’s car e was more conducive t o [ t h e] plaintiff’s car e, rec overy , or reha bil i t at i on than car e that could have been provided by a licensed health car e profe ssional. The evidenc e established that Andre w provided plaintiff car e that nurses ordinarily do not provide, including trea tment specific to para

pleg ic patients. “[T] he trier of fac t will ultimately deter mine wh ether a char g e is rea sonable.” Advoc acy Organization for Patients & Providers v. Auto Club Ins. Ass’n , 257 Mich. App. 365, 379 (2003), citing Nasser v. Auto Club Ins. Ass’n , 435 Mich 33, 55 (1990). The litigants zealously argued their respe ctive case s to the jury

. Although the verdic t itself is larg e, there is none theless evidenc e to suppor t the jury ’s deter

mination that the compensa tion provided to Andre w by [All state] was not adequate, g iven Andr ew ’s training rec eived at the Craig and the actua l attendant car e Andre w provided to [t he] plai n t iff. The evidenc e was sufficie nt for rea sonable jurors to conclude that the rea sonable compensa tion due Andre w was substantially more than the compensation paid by [All state]. Thus, the jury verdic t must st and. Bonkowski v. Allstate Ins. Co. , 281 Mich. App. 154, 169 (2008) (par allel citations omitted). Appellant contends that the lump sum verdic t ref lects attendant car e pay of $468,660.00 per
y ear , which is an hourly rate of $53.50, for twent y -f o u r hours a day , seven day s a week. Allstate, howeve r, posits that it is mere specula tion to consider that the jury awa rded this hourly rate and that it is more likely that the jury awa rded a highe r hourly or y ear ly rate for the car e rela ted to the acute phase of Appellant’s rec overy and lowere d the amount as Appellant’s condition improved and Mr. Bonkow ski’s car e beca

me less nece ssary and of a lesser intensity

. Allstate has continued to pay Mr. Bonkow ski $166,440.00 per y ear since the Bonkowski I jury verdic t.
II.
I n the di strict court, Appellant moved for summary judgme nt on th e i ssue of the attendant

car e benef

its, asser ting that Allstate was collater ally and/or judicially estopped from arguing that the

rea sonable value was any amount less than $53.50 per hour, for twenty -four hours a day , seven day s

5No. 12-2038

Bonkowski v. Allstate InsuranceCo.

a we ek. The district court denied the motion, finding that Appellant’s condition and needs were differ ent than they

wer e in Bonkowski I

. A. Standard of

Review This Court’s revie w o f the district court’s denial of summary judgme nt is for abuse of discretion unless the denial is based on purely leg al g rounds, in which case revie w is de novo . McM ullen v. Meijer, Inc. , 355 F.3d 485, 489 (6th Cir. 2004). We have repe atedly held that judicial and collater al estoppel are revie wed under a de novo standard of revie w. See, e.g. , Browning v. 1 Levy , 283 F.3d 761, 775 (6th Cir. 2002) (judicial estoppel); Stemler v. Florence , 350 F.3d 578, 585 (6th Cir. 2003) (collate ral estoppel). I n general, “‘w here summary judgme nt is denied and the

movant subsequently loses afte r a full trial on the merits, the denial of summary judgme nt may not be appea led.’” United States ex rel. A+ Homec are, Inc., v. Medshare s Mgmt. Grp., Inc. , 400 F.3d
4 2 8 , 441 (6th Cir. 2005) (quoting Jarrett v. Epperly , 896 F.2d 1013, 1016 (6th Cir. 199 0 ))

. Howeve r, there is a

n exception to this rule when “the denial of summary judgme nt was based on a question of law rathe r than the prese nce of material disputed fac ts.” Id. Her e, Bonkow ski’s challeng es on appea l to the district c ourt’s denial of summary judgme nt conce rn the application of judicial and collate ral estoppel. The availability of judicial estoppel is a que stion of law. Allen v. UNUM Life Ins. Co. of Am. , 142 F. App’x 907, 910 (6th Cir. 2005). Althoug h “the availability of collater al estoppel is a mix ed question of law and fac t,” W olfe v. Perry , 412 F.3d 707, 716 (6th Cir. 2005) (interna l quotation marks and alteration omit ted), mix ed questions “ar e trea ted as leg al

The vast majority of these case s are appea ls of a district court’s g rant of summary judgme nt 1 based on e ither of these two doctrines. B oth parties ask us to apply a de novo standard of

revie w. 6No. 12-2038

Bonkowski v. Allstate InsuranceCo. questions for purposes of our revie w,” Vakilian v. Shaw , 335 F.3d 5 0 9 , 5 1 5 (6t h Cir. 2003).
Acc ording ly , we will revie w Bonkow ski’s challeng es on appea l to the district court ’s d enial of
summary judgme nt. The “party seeking summary judgme nt alway s bear s the i nitial responsibility of i nforming

t h e d i s t ri ct court of the basis for its motion, and identify ing those portions” of the rec ord which demonstrate “the absence of a g enuine issue of m ater ial fac t.” Cel o t ex Corp. v. C atrett , 477 U.S. 317, 323 (1986). The burden then shifts to the nonmoving party who “‘must set forth specific fac ts showing that there is a g enuine issue for trial.’” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250 (1986) ( quoting F ed. R. Civ. P. 56(e)). A ge nuine i ssue of materia l fac t exi sts “‘if the e vidence is such that a rea sonable jury could return a verdic t for the nonmoving party .’” Muncie Power Prods.,
Inc. v. United Techs. Auto., Inc. , 328 F.3d 870, 873 (6th Cir. 2003) (quoting Anderson , 477 U.S. at 248). See also Matsushita Elec. I ndus. Co., Lt d. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986) (the require ment that a dispute be “g enuine” means that there must be more than “some metaphy sical doubt as to the materia l fac ts”).
B. Jud icial Estopp el “Judi cial es t o p p el is an equitable doctrine that prese rves the integ rity of the courts by
preve nting a party from abusing the judicial proce ss throug h cy nical g am es m an ship, achie ving

succe ss on one position, then arguing the opposite to suit an exigenc y of t h e m oment.” Teledyne Indus., Inc. v. Nat’l Labor Relations Board , 911 F.2d 1214, 1217-18 (6th Cir. 1990)

. “‘[W] here a party assumes a cer

tain position in a leg al proce eding , and succe eds in maintaining that position, he
may not there afte r, simply beca use his interests have chang ed, assume a contra ry position, espec ially 7No. 12-2038

Bonkowski v. Allstate InsuranceCo. if it be to the prejudice of th e p ar t y who has acquie sced in the pos ition former ly taken by him.’” Loril lard Tobacco Co. v. Chester, W illcox & Saxb e, L LP , 546 F.3d 752, 757 (6th Cir. 2008) (quoting New Hampshire v. Maine , 532 U.S. 742, 749 (2001))

. Thus, the doctrine “bar s a party from (1) asser ting a position that is contra ry to one that the party has asser ted under oat h in a prior
proce eding , wher e (2) the prior court adopted the contra ry position either as a preliminary matter or

as part of a final dispositi on.” Id. (citing Browning v. Levy , 283 F. 3 d 7 6 1 , 775 (6th Cir. 2002); Teledyne , 911 F.2d a t 1218) (interna l quotations omi tted).
“A court should also consider whether the party has g ained an un fa i r ad v an t age from the
court’s adoption of its ear lier inconsistent statement.” Id. (citing New Hampshire , 532 U.S. at 751). “Althoug h there is no set formula for assessing when judicial est o ppel should apply , it is well-e stablished that at a minimum , a party ’s later position must be cle ar l y i n consi stent with its

ear lier posit i o n . ” Id

. (citing In re Commonwealth Institutional Sec. , 394 F.3d 401, 406 (6th Cir. 2005); New Hampshire , 532 U.S. at 750) (interna l quot at i o n marks omitted). “More over, the doctrine of

judicial estoppel ‘is applied with caution to avoid im p in g in g o n the truth-see king function of the court beca

use the doctrine prec ludes a contra dictory position without examining the truth of either state ment.’” Id. (quoting Teledyne , 911 F.2d a t 1218). Appellant cont en d s that when Allstate was befor e the state appellate court, it took the position that $53.50 per hour is the rea sonable rate of pay for attendant car e provided by Mr. Bonkow ski. That position, Appellant continues, is inconsistent with Allstate’s curr ent posture that $19.00 per hour i s the rea sonable rate of pay . Fur ther, he maintains that the state appellate court

8No. 12-2038

Bonkowski v. Allstate InsuranceCo.

acc epted Allst ate’ s position. Appellant’s a ssessment of the proc eeding s befor e the state appellate court, howe ver, is inac curate. Contrary to Appellant’s contention, Allstate did not asser t to the state appellate court that the

rea sonable rate of pay for the attendant car e provided by Mr. Bonkow ski is $53.50 per hour. Allstate clea rly articula ted its position befor e the state appellate court as follows: “Allstate’s position is that its ong oing pay

ment on behalf of Shaun Bonkow ski of $19.00 per hour, 24 hours per day , 365 day s
per y ear to Mr. Bonkow ski was rea sonabl e, an d that Plaintiff failed to make a prima fac ie case showing otherwise.” (Allstate’s State Ct. Appellate Br

. at 3, Dist. Ct. Docke t at 22-7 at 1.) Allstate contende d in state court that it was the jury , not Allstate, who set the value of the car e as $53.50 per hour. At oral arg

ument on Appellant’s motion for summary judgme nt, the trial judge rec ogn i z ed this, as is shown by

the following exchang e: Counsel: . .

. The posit ion that [All state] made to the [ state] Court of Appea ls, to a court, was that the value of car e as deter mined by the jury was $53.50 per hour, and it i s on that basis that I ’m claiming the judicial estoppel, beca use Allstate has set forth as be ing, tha t’s their position.
Court: W hat’s [Allstate’s] posi tion, that that’s what the jury decide d? Counsel: Yes. Court: Yeah, but [Allstate] didn’t ag ree with it. Counsel: I ag ree with that, they didn't a g ree with it . . . . (O ra l He ar i n g T r. on Pl. Mot. for Summ. J

. at 9; Dist. Ct. Docke t No. 101.) Counsel continued, attempting to e x plain how the position could be under stood to be one take n by Allstate: Counsel:

. . . this lang uag e from the Court from Teledyne at 911 F.2d 1214, “We do not imply that judicial acc eptanc e only occur s wher e a party ultimately preva ils on 9No. 12-2038

Bonkowski v. Allstate Insurance Co. the merits. Rather, judicial acceptance means only that the first court has adopted the position urged by the party either as a preliminary matter or as a part of a final disposition.” In other words, it’s not necessarily that Allstate agrees that the reasonable value of the care is 53.50. . . . But they had advised the [state appellate court], in advancing their position, that that was the determination, the adjudication in the lower court. Whether they agree with that or not, they certainly agree that that is what the jury determined in the lower court. Id. at 9 10. Counsel, however, misapprehends the nature of the inquiry required by the doctrine of judicial estoppel. Simply because Allstate indicated to the state appellate court that the jury verdict, with which it did not agree, could be expressed in terms of a consistent hourly rate of $53.50 does not mean that it adopted that position. (Allstate’s State Ct. Appellate Br. at 16, Dist. Ct. Docket at 22-7 at 4) (“the verdict reflects an attendant care benefit award equivalent to $53.50 per hour”) (emphasis added). Nowhere in the record before us has Allstate “urged” any court to accept the position that $53.50 is a reasonable rate of pay for attendant care services provided by Mr. Bonkowski. Indeed, the record reflects that the opposite has been consistently expressed by Allstate. That is, that $53.50 is an unreasonable rate of pay for the attendant care services provided by Mr. Bonkowski. Additionally, the Court notes that in the present case there is neither evidence of gamesmanship that the doctrine of judicial estoppel is intended to prevent, nor that Allstate gained an unfair advantage from suggesting that the jury’s verdict could be expressed as $53.50 per hour. Consequently, the Court concludes that the district court correctly found that Appellant is not entitled to the application of judicial estoppel on this issue.

10No. 12-2038

Bonkowski v. Allstate InsuranceCo. C. Collater al Estopp el “The Full Fa ith a

nd Credit Act mandates that ‘judicial proce eding s . . . shall have the same full faith and c redit in eve ry court within the United States . . . as they have by law or usa g e in the

courts of such State

. . . from whi ch t h ey are taken.’ ” Spectrum Health Continui ng Care Grp. v. Anna Marie Bowling Irrev ocable Trust Dated June 27, 2002 , 410 F.3d 304, 310 (6th Cir. 2005) (quoting 28 U.S.C. § 1738) (omissions in orig inal). “The United States Supreme Court has interpre ted the act as requiring that ‘a fede ral court must g ive to a state-co u rt j u d gm en t the same
prec lusive eff

ect as would be g iven that judgme nt under the law of the State in which the judgme nt

was rende red.” ” Id. (quoting Migra v. W arren City Sch. Dist. Bd. of Educ. , 465 U.S. 75, 81 (1984))

. Thus, the full faith and c redit owe d to the state cour t judgment is the s ame owed i n fede ral court.
To the extent the Michig an judgme nt is modifiable under state law beca use of chang ed conditions, the fede ral court in this instance had the same power to m o d i fy t h e j udg ment, at least insofar as future pa y ments. “Unde r Michig an law, issue prec lusion, known as collater al estoppel, ‘pre cludes relitig ation

o f an i s sue in a subsequent, differ ent cause of action betwee n the same parties wher e the p ri o r
proce eding culminated in a valid, final judgme nt and the issue was . . . ac t u al l y l i tigated, and

. . .

nece ssarily deter

mined.’” Id. (quoting People v. Gates , 434 Mich. 146, 1 5 4 (1990), overr uled i n

non-re levant part in Monat v. State Farm Ins. Co. , 469 Mich. 679 (2004))

. “‘The party asser ting
prec lusion bear s the burden of proof.’ ” Id. (quoting United States v. Dominguez , 359 F.3d 839, 842 (6th Cir. 2004)). The ref

ore, to e stablish collatera l estoppel, Appellant must demonstrate that:

11No. 12-2038

Bonkowski v. Allstate Insurance Co.

1) the parties in both proceedings are the same or in privity, 2) there was a valid, final judgment in the first proceeding, 3) the same issue was actually litigated in the first proceeding, 4) that issue was necessary to the judgment, and 5) the party against whom preclusion is asserted (or its privy) had a full and fair opportunity to litigate the issue. Id. (citing United States v. Dominguez , 359 F.3d 839, 842 (6th Cir. 2004)); Gates , 434 Mich. at 154 55). In the instant action, Appellant contends that the issue of the value of attendant care provided to him by his father was actually litigated in the state court and was determined to be $53.50 per hour for every hour of the day, seven days a week, and that the determination was necessary to the judgment. The district court found that application of the preclusion doctrine was inappropriate because Appellant failed to show that the same issue was actually litigated in the first proceeding or that the issue was necessary to the judgment. We agree. As to the requirement that the same issue be actually litigated, Appellant is correct that the jury made a determination of the value of care provided to Appellant by his father. That determination, however, was based on Appellant’s medical needs and the intensity of care provided by Mr. Bonkowski at that time, i.e. , from the time of Appellant’s stay at Craig Hospital in 2001 until the July 2006 jury verdict in Bonkowski I . Allstate offered evidence of changes in Appellant’s medical condition and level of care provided by Mr. Bonkowski. As the district court correctly found:

12No. 12-2038

Bonkowski v. Allstate InsuranceCo. The differ ence betwee n the issue in the prior case and the issue in this case has to do with the condition of the Plaintiff, the require ments that t he Plaintiff demands in terms of attendant car e, the level of skill that is require d to meet those require ments, and the -- a rea sonable rate for furnishing t h at l ev el o f skilled car e under the circ umstances as they exis t from day to day beg inning on J uly 7 of 2006 throug h the prese nt date or the date of the deter mination. (Ora l Hear ing T r. at 23, Dist. Ct. Docket No. 101 at 23.) Allstate provided evidenc e of chang es and improvements in Appellant’s medical condition, chang es in his car e needs, and chang es in the car e that was provided. For example, A ppellant was

no longe r on a ventilator nor did he need a trac heotomy tube suctioned. Fur ther, in Fe bruar

y 2006, Ap p ellant had underg one various trea tments, including botox injections, which, combined wi t h adaptive medical equipment (including a left arm b ra ce), incre ased and improved his rang e of motion. Appellant was conseque ntly able to eng ag e in cer tain activities, including working on a computer while not in bed. I n April 2006, Appellant rec eived new durable medical equipment, including a new whee lchair, with better pressure points, which, inter alia , provided relief from the previous problems on his posterior shoulder. Also, his decubitis ulcer d ec re as ed i n siz e. Appellant’s medical trea tments be came less fre quent, including three month pe riods wher e he had no phy sician appointments.
Fur ther, Allstate set forth evidenc e t h at t h e level of car e provided by Mr. Bonkow ski had declined, including his use of incorre ct shoes causing fo o t u l ce rs, shear ing to Appellant’s back resulting from transfe r proce dures, and the acc idental fra cturing of Appellant’s femur while perf orming leg stret ches. Finally , Allstate also pointed out that sever al medical conditions from Appellant’s initial hospital stay , which wer e befor e the jury in Bonkowski I , wer e no longe r issues,

13No. 12-2038

Bonkowski v. Allstate InsuranceCo.

s u ch as a ri gh t seg mental fibula fra cture , a rig ht distal third tibia fra cture , a left mid-shaft tibi a fra cture , presumed cer

vical fra cture s, respiratory failure and require ment for ventilator support, the require ment for car diopulmonary by pass or rew arming , the need for intramedullary nailing,
perc utaneous g astronomy tube, malnutrition, and che mical panc reatitis

. These chang es over the six y ear s that had elapse d since the jury verdic t in Bonkowski I also distinguish this case from Juzba v. State Farm Mut. Auto. Ins. C o. , No. 283820, 2009 Mich. App.
L EXI S 665 (Mich. Ct. App. Mar. 26, 2009), the c ase upon which Appellant most hea vily relies in his c ollatera l e stoppel argument. The Juzba court applied collater al estoppel to pr event an insurer from relitig ating the rea sonablene ss a nd nece ssity of service s provided by a reha bilitation fac ility

. The trial judge in the first case deter mined prior to trial that the rate char g ed by the fac ility was

rea sonable, and a jury returne d a verdic t deter mining that the acc ommodations wer e reasonably

nece ssary for the pla intiff’s ca

re of an injury that arose out of an a ccide nt that was covere d. After the pay ment of that verdic t, the insurer stopped paying for thes e service s and the plaintiff filed a second suit, in which she move d for a nd was g rante d summary

dispositi on. Juzba is e asily distinguished from this c ase beca use the insurer there provided no evidenc e
at all that the plai n t i ff ’s co n d i t i on or need for car e chang ed from the time of the first verdic t, as

rec og nized by

the state a

ppellate c ourt: Although the jury made no deter mination reg arding the rea sonablene ss and nece ssity of future benefits , plaintiff attache d to her motion for summ ary dispositi on the aff idavit of Dr. Terr

y Br aciszewski, who aver

red that neither plaintiff’s diag nosis nor her need for the service s being provided by [t he reha bilitation fac ility ] had chang ed since the jury rende red its verdic t in Aug ust 2006. Despite the passag e of near ly 9 months betwee n the times plaintiff filed this action and when she filed her motion for summary dispositi on, State Fa rm appar ently failed to eng ag e in discovery to support

14No. 12-2038

Bonkowski v. Allstate Insurance Co. its position that the treatment being provided by [the rehabilitation facility] is no longer reasonable and necessary. State Farm failed to submit any documentary evidence with its reply to plaintiff’s motion for summary disposition to contradict Dr. Braciszewski’s averments in his affidavit. Under these circumstances, where a jury previously determined the necessity and reasonableness of plaintiff’s treatment, where plaintiff presented an affidavit to establish the continued necessity and reasonableness of the treatment, and where State Farm failed to present documentary evidence to contradict plaintiff’s documentary evidence, the trial court properly granted summary disposition in favor of plaintiff under MCR 2.116(C)(7). Juzba , 2009 Mich. App. LEXIS 665, at *10 11 (emphasis added). Additionally, the court specifically indicated that the insurer “might have avoided summary disposition by submitting documentary evidence to contradict the documentary evidence in support of plaintiff’s claim regarding the necessity and reasonableness of plaintiff’s continued treatment at [the rehabilitation facility].” Id. at *11 n. 4. Here, that is exactly what Allstate did. It submitted evidence that contradicted Appellant’s evidence on the issue of changes and improvements in Appellant’s medical condition, changes in his care needs, and changes in the care that was provided. We next address whether the issue presented in this case was necessary to the judgment of the state trial court. “An issue is necessarily determined only if it is ‘essential’ to the judgment.”
Gates , 434 Mich. at 158 (citation omitted). In the case sub judice , it cannot be said that a determination that the value of the services provided by Mr. Bonkowski was $53.50 per hour, to be paid for twenty-four hours a day, seven days a week was essential to the jury verdict. Indeed, it cannot be said that the jury even made that determination. The jury returned a lump sum verdict. It is mere speculation to conclude that the jury awarded that amount based upon a determination that Mr. Bonkowski should be paid a consistent hourly rate for every hour of each day of a six year period. Without the benefit of answers to interrogatories or special verdicts, it is not possible to 15No. 12-2038

Bonkowski v. Allstate InsuranceCo. know if the jury rea ched such a c onclusion. I t is also not possi ble to know whether the jury found the rea sonable rate of pay was inconsistent ove r that time pe riod, awa rding a highe r rate of pay for the hours spent in the initial period afte r the acc ident, or during the more skilled or intrusive medical
proce dures Mr. B onkowski provides, or e ven during the day time hours as opposed to the nig ht.
Be cause Appellant failed t o s h ow that the same issue was actua lly litigated in the first
proce eding or that the issue was nece ss ary to the judgme nt, the district court proper ly declined to apply the doctrine of collate ral e stoppel.
III. After this case was tried to a jury , Appellant filed a rene wed motion for judgme nt as a matter of law pursuant to Rule 50 of the Fe dera l Rules of Civil Procedur e, which the district court denied.
A. Standard of

Review
I n diversity case s, when a Rule 50 motion for judgme n t as a matter of law is based on a challenge t o t he sufficiency of t he evidence, this Court applies t he st andar d of review used by the

co u rt s o f the s tate whose substantive law gover ns the action. Morales v. American Honda Moto r Co. , 151 F.3d 500, 506 (6th Cir. 1998). Under Michig an law, “[t] he standard o f re view for judgme nts notwithstanding the verdic t require s revie w of the evidenc e and all leg itimate infere nces in the light most favor able to the nonmoving pa rty .” Orzel by Orze l v. Scott Drug Co. , 449 Mich. 550, 557 (1995). [An appellate ] Court revie ws a trial court’s decision reg arding a motion for a direc ted verdic t to deter

mine whether , viewing the evidenc e in the light most favor able to the nonmoving party , a question of fac t for the jury exis ted. Stoken v. J.E.T. Electronics & Technology, I

nc. , 174 Mich. App. 457, 463 (1988)

. The trial court’s decision to g rant or de ny

a motion for a directe d verdic t will not be dist urbed on a ppeal unless 16No. 12-2038

Bonkowski v. Allstate InsuranceCo. the trial court abused its discretion. Howard v

. Canteen Corp. , 192 Mich App 427, 431 (1992). Simi larly , judgme nt notwithstanding the verdic t is improper wher e the evidenc e is such that rea sonable minds could differ

. Byrne v. S ch neider’s Iron & Metal, Inc

. , 190 Mich. App. 176, 179 (1991)

. Schutte v. Ce lotex Corp. , 196 Mich. App. 135, 138 (1992) (par allel citations omitted).
B. Discussion Appellant argues that Al l s tate failed to provide any evidenc e on the issue of whether his condition and car e needs had chang ed since the ver d i ct in Bonkowski I , that “[t] he only evidenc e
prese nted to the jury on this issue was by [Appellant] ,” and that evidenc e supported a lack of chang e. (Pl. Mot. for J

. as a Matter of L aw at 11, Dist. Ct. Docke t No. 147 at 1 9

. ) Ap p el l an t, howeve r, is incorre ct. As we have set forth supra , Allstate provided evi d en ce of chang es and improvements in Appellant’s medical condition, chang es in his car e needs, and chang es in the car e that was provided. Allstate offe red this same or simil ar evidenc e at trial and elicited additional testimony to support its position. For example, D r. Perlman, the phy sician who pre scribed the attendant c are testified that the twenty -four -hour- car e presc ription was due in part to Appellant’s trac heotomy and rela ted car e issues and that car e could be scale d back once he was remove d from the ventilator, which happene d by the period of time at issue in this case . Another example is the testimony Allstate elicited from
Mr. Bonkow ski about improvement in Appe l l ant’s cog nitive abilities and the discontinuation of Appellant’s PI C-line, which i s an I V that rema ins in the body for a long period of time and is cumber some to car e for

.

17No. 12-2038

Bonkowski v. Allstate InsuranceCo. Viewing this evidenc e, and the evidenc e discuss ed above in section I I , in the light most favor able to Allstate, and draw ing all rea sonable infere nces in its favor , we conclude that there is sufficie nt evidenc e in the rec ord to support the jury verdic t. There fore , the dist ri ct co u rt d id not abuse its discre tion by

denying A

ppellant’s motion for a judg ment notwithstanding the ve rdict.

IV.
I n Appellant’s post-trial motion, he reque sted judgme nt as a matter of law and/or a new trial based on, inter alia , the district c ourt’s denial of his r equest to pr esent a cer tain jury instruction he proposed and based on the court’s evidentiar y ruling rela ted to the purpose for which the jury could hear of the Bonkowski I jury verdic t. Appellant appea ls the district court’s ruling s, which we revie w 2
for an abuse of discretion. Uni t ed S t a t es v. Ross , 502 F.3d 521, 527 (6th Cir. 2007) (“This Court revie ws a district court’s choice of jury instructions for abuse of discretion.”) ; United States v. Perry , 4 3 8 F.3d 642, 647 (6th Cir. 2006) (“We revie w the district court’s admission or exclusi o n o f evidenc e for

an abuse of discre tion.”). A. Jury Instructions Appellant raises as an issue on appea l whether the district c ourt err ed “in failing to instruct the jury on the issue of whether there was a signific ant chang e in Plaintiff’s condition.” (Appe llant 3

Appellant raised issues as to the timing of the district court’s ru l ing, as well as Allstate’s 2 counsel’s alleg ed improper arguments made during the trial; howeve r, Appellant has not raised these issues as assig nments of err or, nor has he made any leg al argumen t re l at ed to these issues. I t is, there fore , unnece ssary

to reviewthe district court’s de cision relate d to these issues. Neither party cites to the in struction g iven by the district court. There fore , we focus 3 exclusively

on the instruction which wa s not give n. 18No. 12-2038

Bonkowski v. Allstate Insurance Co. Br. at 7.) Notwithstanding this statement, Appellant made no argument related to the legal basis for his contention in his brief and filed no reply to the arguments made by Allstate in its brief. At oral argument, however, Appellant’s counsel candidly explained that while he did not address this issue in his brief, he relies upon Manley v. DAIIE , 425 Mich. 140, 388 N.W.2d 216 (1986), to support his argument. We address Manley below. Initially, we consider the district court’s decision related to whether appellant waived his right to object to the jury instruction given. In its decision, the district court held that Appellant waived his right to object because he did not make the objection before the jury was charged. Alternatively, the district court held that even if he had not waived the right to object, his objection lacks merit. 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 generally viewed as a waiver of the party’s objection to the jury instruction. See, e.g. , 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 19No. 12-2038

Bonkowski v. Allstate InsuranceCo.
to a specific charg e before and after the jury char g e is g iven consti tutes waiver of t he objection.”) (citing Murphy v. Owens-Ill., Inc. , 779 F.2d 340, 345-46 (6th Cir. 1985)). Nonethele ss, “[a]lt houg h the l anguag e of Rule 51 s u ggests that litigants m ust timely ‘use it or l ose i t,’ a li tiga nt’s failure to object to a jury

instruction does not cre ate a jurisdictional ba

r to revie w.” Rey nolds v. Gree n , 184 F.3d 589, 594 (6th Cir. 1999) (citing City of Springfield v. Kibbe , 480 U.S. 257, 259 (1987))

. I n this
reg ard, Rule 51 allows considera tion of an unprese rved jury instruction argument under a plain err or standard if the “er

ror in a jury instruction is obvious and prejudicia l.” Sovere ign Order of Saint John of Jerusalem , Inc. v. Grady , 119 F.3d 1236, 1243 (6th Cir. 1997) (citing Chonich v. W ayne Cnty. Cmty. Coll. , 973 F.2d 1271, 1275 (6th Cir. 1992)); Fe d. R. Civ. P. 51(d)( 2); Y oung v. Langley , 793 F.2d 792, 795 (6th Cir. 1986)

. Howeve r, a jury instruction err or that is harmless will not furnish a basis for r elief. Johnson Controls, Inc. v. J ay Indus., I

nc. , 459 F.3d 717, 727 ( 6th Cir. 2006). Appellant makes no argument that the distric t co u rt ’s refusal to instruct the jury on his proposed instruction is plain err or and we find no plain err or here

. The jury instruction of fer ed by Appellant is as follows: Def endant Allst ate I nsuranc e C ompany has t he burden of p ro o f o n i ts defe nse t hat there has been a substantial chang e in the fac ts and circ umstances in Shaun Bonkow ski’s need f

or attenda nt car e. You are instructed that the rea sonable value of the attendant car e service s provided by Andre w Bonkow ski for Plaintiff Shaun Bonkow ski has been deter mined in the past to be $2,140,810.00 for 1,666 day s of attendant car e service

. Def endant has the burden of proving the following : (a) That there has been a substantial chang e in the fac ts and circ umstances in Shaun Bonkow ski’s need f

or attenda nt car e ser

vices since J uly

7, 2006 and

20No. 12-2038

Bonkowski v. Allstate InsuranceCo. (b) if there has been a substantial chang e in the fac ts and circ umstances i n Shaun Bo n k o wski’s need for attendant car e services since J uly 7, 2006, the chang e in th e rea sonable va lue of the c are . (Dist. Ct. Op. at 14.) Appellant relies o n Manley v. DAII E , 425 Mich. 140, 388 N.W.2d 216 (1986), for the proposition that the jury m u s t fi n d t h at the rea sonable value of car e is what the Bonkowski I jury deter mined it to be unless Allstate proves that there was a signific ant chang e in Appellant’s condition. The district court corr ectly explained why this c a s e does not support Appellant’s position: Manl ey cer

tainly discussed the idea that injured persons and insurance companies “ar e entitled to a rede termination from time to time o f t h e am ounts proper ly allowable for nurse’ s aides or for room and board, includin g t he service s of the [family members].” Id. at 158, 388 N.W.2d at 224. Howeve r, the portions of Manley that discuss revie w for chang e in circ umstances, which the plaintiff cited in his brief, do not addre ss which party has the burde n o f p ro of on that issue. The proposed instruction assig ns the burd en to the defe ndant without any leg al support for that proposition. The plaintiff pointed to none a nd the Court did not locate any

. (Dist. Ct. Op. at 15.) For these same rea son s , t h is Court finds no obvious and prejudicial err or i n the district court’s r efusa l to give A ppellant’s propose d instruction.
B. Evid entiary Ruling
Two wee ks befor e trial, the district court ruled on, inter alia , Appellant’s motion in limine

. The district court g rante d Appellant’s reque st to allow the jury to be prese nted with the Bonkowski
I jury verdic t as evidenc e of the value of the attendant car e in this case . Allstate moved for

rec onsideration, and on the morning of jury selec tion, the district court hear d additional arguments

on the subject and altere d its in limine ruling

. The district court decide d that it would be misleading and confusing for the jury to h ea r t h e Bonkowski I jury verdic t as substantive evidenc e on the

21No. 12-2038

Bonkowski v. Allstate InsuranceCo.

rea sonablene ss o f Ap p el l ant’s reque sted $53.50 per hour attendant car e pay . The district court indicated that it would permit the Bonkowski I jury verdic t to be discussed bef ore the jury only for the purpose of deter

mining whether the amount to be paid to Mr. Bonkow ski for his attendant car e service s was rea sonably in dispute afte r that verdic t. I f it we re rea sonably in dispute, then Allstate would not be overdue in its attendant car e pay ments since the Bonkowski I verdic t and would not be require d to pay interest on t h e am o u n t u l t i mately due if the jury in this case found in favor of Appellant. During opening statements, Appellant’ s attorney offe red the following : Now, when I say that the car e has been valued, well, here ’s a critica l time period that it is very important, not nece ssarily specific ally to this case , but in understanding how the car e has alre ady been v al u ed, and why , when I said at the beg inning of this opening statement, I

rea lly wasn’t too thrilled about having to be here ag ain.
Dec ember 8, 2001, when Shaun was discharg ed from the hospital, throug h J uly 7, 2006, is 1,666 day s. Allstate paid $2.1 milli on for that car e that was provided. I t’s been va lued. Now, how can we brea

k that down into something that was a littl e bit more -- well, a littl e bit easie r to understand? I f y ou do the math, as the evidenc e will show in this ca se, this works out to $53.54 per hour. That’s what Allstate paid. That’s h o w Allstate valued i t for that time period. We went throug h a trial, and afte r the trial, that’s what wa s paid.

. . . . The c are has bee n valued. The deter mination has been ma de.
So what are we doing now? Well, I think one way that I can try and show this to y ou is through a

time line and the eve nts, some of the sig nificant e vents. You see , from Dec ember 8 of 2001 to July 7 of 2006, it’s that 1,666 day s. And the valuation of that car e is at $53 an hour. What is the dispute in this case ? This c ase beg ins on J uly

8 of [2006] . That’s our dispute. July 8, 2006 to today

.

22No. 12-2038

Bonkowski v. Allstate Insurance Co. (Trial Tr. at 32 33, Dist. Ct. Docket No. 151 at 32 33.) The Bonkowski I jury verdict was discussed several times during the trial, and at one point the district court informed the jury of its evidentiary ruling: THE COURT: Members of the jury, let me discuss the evidence with you and the purpose for which you may consider this evidence. The period for which attendant care is claimed in this case, as I explained to you earlier, was from July 7 of 2006 through the current date. There was a claim for attendant care, as you have heard from the evidence, on an earlier time, for an earlier period, which I believe the proofs have shown was December 18, 2001, through July 7, 2006. That claim was in dispute and it was resolved in a different lawsuit. The result of that lawsuit is something that you may not take into account in determining the value of the attendant care for this period, however, there is another issue involved in the case, and that is whether or not the amounts were overdue after July 7. And so the question is whether -- on whether the amounts were overdue is whether the Defendant can claim that the matter was reasonably in dispute. And you may consider the issue of the prior court determination on the question of whether the matter was previously in -- whether the matter was reasonably in dispute for the period after July 7, 2006, that is what we’re here to talk about today, but not in terms of setting a value. The value for the attendant care is what you determine it to be based upon the evidence and my instructions. The Plaintiff has the burden to prove that the value of attendant care for reimbursement is what it is, and I will be instructing you that the Plaintiff must prove that the expense was incurred, was necessary, and that the amount is reasonable. And that’s for you to decide based upon the evidence that you have before you. Now, when I instruct you that the evidence that you are hearing may be used for a limited purpose, you may consider it only for that purpose and for no other purpose. So the evidence of the prior -- the results of the prior proceeding, you may consider on the question of whether the Defendant has a claim that the amount is reasonably in dispute, but you may not consider it for the purpose of the actual value of the attendant care that you will determine in this case. 23No. 12-2038

Bonkowski v. Allstate Insurance Co. (Trial Tr. at 552 54, Dist. Ct. Docket No. 152 at 68 70.) As the district court correctly indicated in its decision below, “[e]vidence is properly excluded when it poses a ‘likelihood of misleading the jury and confusing the issue.’” Blakely v. City of Clarksville , 244 F. App’x 681, 683 84 (6th Cir. 2007) (quoting Olin-Mathieson Chem. Corp. v. Allis-Chalmers Mfg. Co. , 438 F.2d 833, 837-38 (6th Cir. 1971)). “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.’” Id. at 684 (quoting Coleman Motor Co. v. Chrysler Corp. , 525 F.2d 1338, 1351 (3d Cir. 1975)). “In essence, the jury may ‘import the whole verdict . . . from the prior proceeding.’” Id. (quoting Engquist v. Or. Dep’t of Agric. , 478 F.3d 985, 1010 (9th Cir. 2007)). Consequenlty, the district court did not abuse its discretion in excluding the Bonkowski I verdict as substantive evidence on the value of Mr. Bonkowski’s attendant care and directing that evidence only toward the question whether Allstate’s attendant care payments were overdue. That question, as it turned out, the jury was not required to reach because Appellant failed to persuade it that the value of the attendant care furnished by Mr. Bonkowski exceeded what he had already been paid.
V. For the reasons stated above, we AFFIRM the district court’s decisions.

24