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STATE OF MICHIGAN
COURT OF APPEALS


CARL WILKINSON and JEANETTE WILKINSON, Plaintiffs-Appellees, v ANTHONY LEE and GENERAL MOTORS CORPORATION, Defendants-Appellants.

UNPUBLISHED June 15, 1999

No. 203218 Oakland Circuit Court LC No. 94-487015 NI

Before: Markey, P.J., and Sawyer and Whitbeck, JJ. PER CURIAM. Defendants admitted responsibility for causing an automobile accident on May 20, 1992 (the "1992 accident") between defendant Anthony Lee and plaintiff Carl Wilkinson ("Wilkinson"). The primary issues at trial were whether the 1992 accident proximately caused Wilkinson's alleged injuries and whether the alleged injuries amounted to a serious impairment of bodily function as the phrase was used in MCL 500.3135; MSA 24.13135, as in force at the time of the accident. Following a jury trial, defendants appeal as of right the trial court's denial of their motions for a directed verdict and for a judgment notwithstanding the verdict. We reverse. I. Factual Background And Procedural History Wilkinson testified that the collision in the 1992 accident threw him forward and backward with such force that it caused his seat to break.1 Wilkinson was taken to the hospital, diagnosed with a neck strain and issued a cervical collar. Wilkinson missed only two days of work, including the day of the accident. Shortly thereafter however, according to Wilkinson, he began experiencing headaches and neck pain. Both Wilkinson and his wife testified that the headaches continued and that Wilkinson became slow-moving, quiet, and fatigued. Wilkinson testified that he experienced none of these symptoms before the accident. In addition, Wilkinson's wife and daughter testified that Wilkinson's physical and mental condition declined drastically after the 1992 accident.

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According to Wilkinson, although he sought treatment for these ailments, including physical therapy, his symptoms intensified over the next eighteen to twenty-one months following the 1992 accident, causing nausea, severe headaches, dizziness and double vision. His memory loss grew to the point that he would put a customer in a waiting room, forget they were there and fall asleep. Finally, on January 31, 1994, Wilkinson lost consciousness four or five times and was taken to the hospital, where he was diagnosed as having a meningioma brain tumor. Dr. Murali Guithikonda removed the tumor in February 1994. While most of Wilkinson's previous symptoms ceased after the operation, many persisted.2 Dr. Guithikonda testified that a meningioma is a slow-growing tumor that arises from the layers covering the brain, and that it was "quite likely" that Wilkinson had the tumor when the 1992 accident occurred. In addition, defendants' medical expert, Dr. Steven Boodin, testified that the 1992 accident could not cause the tumor and that there was no medical evidence to support the theory that trauma from an accident could cause the growth or acceleration of a tumor. Dr. Guithikonda disagreed, however, testifying that the trauma to Wilkinson's head from the 1992 accident could have precipitated or accelerated the symptoms of the tumor that Wilkinson described. Plaintiffs ultimately filed this lawsuit in November, 1994, pursuant to MCL 500.3135; MSA 24.13135 and trial was conducted in January 1997. After the trial court instructed the jury, defendants moved for a directed verdict which the trial court denied. Subsequently, the jury returned a verdict in favor of plaintiffs in the total amount of $175,000, $150,000 for Wilkinson and $25,000 for his wife. In March 1997, defendants moved for judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial, arguing that the verdict was against the great weight of the evidence. Following plaintiffs' response and a hearing, the trial court denied the motion, noting the heavy burden necessary to remove from the factfinder a decision that it has made and stating that he was satisfied that reasonable minds could differ. II. Standard Of Review We review a trial court's decision not to grant a directed verdict or judgment notwithstanding the verdict de novo. Hord v Environmental Research Institute of Michigan, 228 Mich App 638, 641; 579 NW2d 133 (1998), citing Meagher v Wayne State University, 222 Mich App 700, 708; 565 NW2d 401 (1997). In reviewing a trial court's denial of such motions, we examine the evidence and all the legitimate inferences that may be drawn therefrom in a light most favorable to the nonmoving party. Phinney v Perlmutter, 222 Mich App 513, 524-525; 564 NW2d 532 (1997); Zander v Ogihara Corp, 213 Mich App 438, 441; 540 NW2d 702 (1995). In reviewing a motion for a directed verdict, this Court reviews all the evidence presented up to the time the motion is made. Hord, supra. Neither motion should be granted unless there was insufficient evidence to create an issue for the jury. Zander, supra. "If reasonable jurors could honestly have reached different conclusions, neither the trial court nor this Court may substitute its judgment for that of the jury." Id. "Directed verdicts are not favored in negligence cases." Lamson v Martin (After Remand), 216 Mich App 452, 455; 549 NW2d 878 (1996).

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Similarly, when deciding a motion for JNOV, the trial court must view the evidence and all reasonable inferences in the light most favorable to the nonmoving party and determine whether the facts presented preclude judgment for the nonmoving party as a matter of law. Hord, supra; Phinney, supra at 524. Only when the evidence fails to establish a claim as a matter of law should JNOV be granted. Id. at 524-525. III. Motion For Directed Verdict/JNOV A. Proximate Cause Defendants first argue on appeal that the trial court erred in denying their motion for a directed verdict or a JNOV on the issue of proximate cause. We agree. Here, as in all negligence cases, plaintiffs were required to prove that defendants' negligence was the proximate cause of the alleged injuries. Stephens v Dixon, 449 Mich 531, 539-540; 536 NW2d 755 (1995). To establish proximate cause, a plaintiff must prove both a cause in fact and a legal cause of his or her injuries. See Weymers v Khera, 454 Mich 639, 647; 563 NW2d 647 (1997), citing Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994). To establish cause in fact, [t]he plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant. [Weymers, supra at 648, quoting Prosser & Keeton, Torts (5th ed),

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