                          STATE OF MICHIGAN

                           COURT OF APPEALS



RAYMOND CUDDINGTON,                                                UNPUBLISHED
                                                                   January 12, 2016
               Plaintiff-Appellant,

v                                                                  No. 322102
                                                                   Tuscola Circuit Court
UNITED HEALTH SERVICES, INC.,                                      LC No. 09-025614-CZ

               Defendant-Appellee.


Before: WILDER, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ.

PER CURIAM.

        In this retaliatory-discharge action brought under the Worker’s Disability Compensation
Act (WDCA), MCL 418.101 et seq., plaintiff appeals by right from a judgment of no cause of
action entered following a jury verdict. We affirm.

        This case was before us in Cuddington v United Health Servs, Inc, 298 Mich App 264;
826 NW2d 519 (2012). In that appeal, we vacated the trial court’s order granting defendant
summary disposition pursuant to MCR 2.116(C)(8) (failure to state a claim) and (10) (no genuine
issue of material fact). On remand, the case proceeded to trial1 and resulted in a jury verdict in
favor of defendant. Plaintiff filed a motion for judgment notwithstanding the verdict (JNOV) or
alternatively for a new trial, which the court denied.

        Plaintiff argues on appeal that the court gave improper instructions on the questions
before the jury. We disagree.

       In our prior opinion we set forth the relevant law:



1
  The testimony presented at trial was consistent with the factual background that this Court set
forth in the previous appeal in this case. See Cuddington, 298 Mich App at 268-270. Plaintiff,
who was employed by defendant for approximately 12 years, was involved in an automobile
accident during the course of his employment. Plaintiff’s employment was terminated the
following day when he called in to work and informed his employer that he would not be coming
to work that day due to injury.


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               While employees have the right to seek medical services for work-related
       injuries, we readily acknowledge that not all injuries may actually require
       treatment. Rather, whether an employee “needed” medical services following a
       workplace injury necessarily requires a fact-intensive reasonableness inquiry
       focusing on the totality of the circumstances surrounding the employee, the
       workplace, the nature of the injury, and the injury’s adverse effect on the
       employee’s overall health and well-being. No single factor is dispositive, and a
       reasonableness inquiry may encompass any evidence bearing on whether medical
       services were necessary. This inquiry may include whether the injury involved a
       significant event—such as in this case, an automobile accident and whether the
       injury caused pain or diminished the employee’s ability to perform his or her job
       responsibilities. Medical records may bear on whether medical services were
       reasonably necessary following the injury. As discussed in more detail below, the
       employee bears the burden of proving that he or she needed medical services
       following a workplace injury. [Cuddington, 298 Mich App at 274-275.]

The trial court’s instructions to the jury were fully consistent with these directions and we find
no error of law.

        Plaintiff also argues that any argument made by defendant relating to the reasonableness
or necessity of medical services constituted an affirmative defense that defendant waived by not
raising in its answer or affirmative defenses. “Under MCR 2.111(F)(3), affirmative defenses
must be raised it in the responsive pleading, unless they previously have been raised in a motion
for summary disposition before the filing of a responsive pleading, MCR 2.111(F)(2)(a).”
Stanke v State Farm Mut Auto Ins Co, 200 Mich App 307, 312; 503 NW2d 758 (1993). Failure
to do so constitutes a waiver of that defense. Id. However, since, “the employee bears the
burden of proving that he or she needed medical services following a workplace injury,”
Cuddington, 298 Mich App at 275, it need not be raised as an affirmative defense. “An
affirmative defense is a defense that does not controvert the plaintiff’s establishing a prima facie
case, but that otherwise denies relief to the plaintiff.” Stanke, 200 Mich App at 312.

        Finally, plaintiff argues that the trial court erred in denying his motion for JNOV or new
trial on the grounds of insufficient evidence or great weight of the evidence respectively. A trial
court’s decision on a motion for JNOV is reviewed de novo. Diamond v Witherspoon, 265 Mich
App 673, 681; 696 NW2d 770 (2005). “In reviewing the decision on a motion for JNOV, this
Court views the testimony and all legitimate inferences drawn from the testimony in the light
most favorable to the nonmoving party. If reasonable jurors could honestly have reached
different conclusions, the jury verdict must stand.” Id. at 682 (citations omitted). A trial court’s
decision on a motion for a new trial is reviewed for an abuse of discretion. Landin v
Healthsource Saginaw, Inc, 305 Mich App 519, 546; 854 NW2d 152 (2014). “A trial court
abuses its discretion when its decision falls outside the range of reasonable and principled
outcomes.” Bay City v Bay Co Treasurer, 292 Mich App 156, 164; 807 NW2d 892 (2011).
Similarly to a motion for JNOV, in reviewing the decision on a motion for a new trial, “this
Court views the evidence in a light most favorable to the nonmoving party, giving due deference
to the trial court’s decision because of its ability to evaluate the credibility of the testimony and
evidence presented to the jury.” Landin, 305 Mich App at 546.


                                                -2-
        This Court may overturn a jury verdict “ ‘only when it was manifestly against the clear
weight of the evidence.’ ” Ellsworth v Hotel Corp of America, 236 Mich App 185, 194; 600
NW2d 129 (1999), quoting Watkins v Manchester, 220 Mich App 337, 340; 559 NW2d 81
(1996). “[T]he jury’s verdict should not be set aside if there is competent evidence to support
it.” Ellsworth, 236 Mich App at 194. This Court “should not substitute its judgment for that of
the jury unless the record reveals a miscarriage of justice.” Id. “This Court gives deference to
the trial court’s unique ability to judge the weight and credibility of the testimony” and to its
“determination that the verdict is not against the great weight of the evidence.” Id.

        Plaintiff’s arguments as to the weight of the evidence have merit. However, it is not for
this Court to reverse a jury verdict and the trial judge’s denial of post-trial motions for relief
simply because we may view the facts differently than did the jurors. And although the medical
record was consistent with plaintiff’s claim, it was very scant and the jury was not bound to
accept it as conclusive.

       Affirmed.



                                                            /s/ Kurtis T. Wilder
                                                            /s/ Douglas B. Shapiro
                                                            /s/ Amy Ronayne Krause




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