                            STATE OF MICHIGAN

                            COURT OF APPEALS



BURT HOLT,                                                          UNPUBLISHED
                                                                    May 23, 2017
               Plaintiff-Appellee,

v                                                                   No. 330076
                                                                    Wayne Circuit Court
AMARILD USHE and RELIABLE                                           LC No. 12-007202-NI
TRANSPORTATION SPECIALISTS, INC.,

               Defendants-Appellants,
and

CONTAINERPORT GROUP, INC.,

               Defendant.


Before: TALBOT, C.J., and K. F. KELLY and BORRELLO, JJ.

PER CURIAM.

       Defendants-appellants, Amarild Ushe (Ushe) and Reliable Transportation Specialists Inc.
(Reliable), appeal by right an order denying their post-trial motions following a jury verdict in
favor of plaintiff Burt Holt (plaintiff). Finding no errors requiring reversal, we affirm.

                                        I. BASIC FACTS

        Plaintiff is a truck driver who was injured while at Containerport Group Inc. (CPG).
CPG is a facility that stores, repairs and inspects equipment as it comes in and out of the depot.
CPG has a “shed” or “canopy” at its entrance. Truck drivers are required to stop and have their
vehicles inspected in one of two lanes. On March 3, 2011, plaintiff was at CPG in the second of
two inspection lanes. He was out of his vehicle while CPG employees conducted an inspection
of his rig. In lane one was Ushe’s rig. Ushe drove for Reliable and was likewise undergoing an
inspection of his rig. After receiving his inspection papers, Ushe re-entered his truck and began
to drive away. The rear tires of Ushe’s vehicle struck plaintiff, who was standing between the
two trucks, causing his body to twist and plaintiff fell to the ground. Plaintiff suffered a severe
injury to his right leg.

       Plaintiff originally sued Ushe and Reliable, claiming that Ushe was negligent (and
Reliable was therefore vicariously liable) in pulling the rig out of the inspection lane when Ushe
knew or should have known that plaintiff was in the “zone of danger.” Ushe/Reliable filed a
                                                -1-
notice of third-party fault, claiming that CPG was negligent in failing to properly monitor and
control ingress and egress of the vehicles it inspected. Plaintiff later amended his complaint to
include allegations that CPG was negligent in the manner in which it conducted inspections.

        There was a 10-day jury trial over the course of three weeks. Plaintiff’s theory of the
case was that Ushe was negligent when he pulled his vehicle out of the inspection without regard
to plaintiff’s safety and that CPG placed truck drivers in a perilous position by requiring them to
exit their vehicles during inspection without implementing or maintaining any policies or
procedures for the protection of the drivers. Collectively, defendants argued that plaintiff was
comparatively negligent because he was on his cell phone at the time of the accident and failed
to use reasonable care for his own safety. They argued that plaintiff effectively placed himself in
the path of Ushe’s vehicle. The nature and extent of plaintiff’s injuries were hotly contested.
Defendants, utilizing what plaintiff’s counsel referred to as a “fat defense,” argued that plaintiff,
who was 5’9 and over 300 pounds at the time of the accident, suffered severe injury because he
was particularly susceptible and because he had a number of pre-existing conditions that
complicated his recovery. However, it must be noted that defendants presented no medical
testimony to dispute plaintiff’s injuries other than their cross-examination of plaintiff’s medical
experts.

        The jury concluded that Ushe and Reliable were 50% at fault, CPG was 40% at fault and
plaintiff was 10% at fault for the accident. It awarded plaintiff $6,000,000 in past non-economic
loss and over $15,000,000 for future non-economic loss. On July 28, 2015, the trial court
entered an order of judgment reflecting that plaintiff’s past and future economic damages were
$386,360.57 and his past and future non-economic damages were $16,984,331.90 for a total
judgment of $17,370,692.47, which was reduced by 10% to reflect plaintiff’s comparative fault.

       The trial court denied a number of post-trial motions. Ushe and Reliable filed a claim of
appeal on November 6, 2015. CPG also filed a claim of appeal on November 12, 2015 and the
two appeals were originally consolidated. However, a stipulation to dismiss CPG’s appeal was
entered on December 22, 2016. Holt v Ushe, unpublished order of the Court of Appeals, entered
December 22, 2016 (Docket No. 330202).

           II. REMITTITUR/NEW TRIAL BASED ON AN EXCESSIVE VERDICT

        Ushe and Reliable argue that the trial court erred when it denied their motion for
remittitur or new trial. We disagree.

       [T]he question of the excessiveness of a jury verdict is generally one for the trial
       court in the first instance. The trial court, having witnessed all the testimony and
       evidence as well as having had the unique opportunity to evaluate the jury’s
       reaction to the proofs and to the individual witnesses, is in the best position to
       make an informed decision regarding the excessiveness of the verdict.
       Accordingly, an appellate court must accord due deference to the trial court’s
       decision and may only disturb a grant or denial of remittitur if an abuse of
       discretion is shown. [Palenkas v Beaumont Hosp, 432 Mich 527, 531; 443 NW2d
       354 (1989).]


                                                -2-
“An abuse of discretion occurs when a court chooses an outcome that is outside the range of
principled outcomes.” Heaton v Benton Const Co, 286 Mich App 528, 538; 780 NW2d 618
(2009).

        Ushe and Reliable challenge only the jury’s non-economic damages award. The jury
awarded plaintiff $6,000,000 in past non-economic loss and over $15,000,000 for future non-
economic loss ($750,000 every year from 2016-2035). The trial court’s judgment reflects that
plaintiff’s total past and future non-economic damages are $16,984,331.90, which is reduced by
10% to reflect plaintiff’s comparative fault. CPG’s portion of the non-economic loss is
$6,919,164.13, while Ushe/Reliable’s portion is $8,735,142.35.

       MCR 2.611(1)(c) and (d) provides:

       (1) A new trial may be granted to all or some of the parties, on all or some of the
       issues, whenever their substantial rights are materially affected, for any of the
       following reasons:

                                               ***

       (c) Excessive or inadequate damages appearing to have been influenced by
       passion or prejudice.

       (d) A verdict clearly or grossly inadequate or excessive.          [See also MCL
       600.6098(2)(b)(iv) and (v).]

         “The only consideration expressly authorized by [the court rule] . . . is whether the jury
award is supported by the evidence.” Palenkas, 432 Mich at 532. Whether an award “shocks the
conscience” is not an appropriate consideration because it is wholly subjective. Id. While a trial
court should consider, for example, whether bias or prejudice influenced the award, it must do so
based only on “objective considerations relating to the actual conduct of the trial or to the
evidence adduced.” Id. To the extent that they are objectively verifiable, a trial court may
consider: (1) whether the award was obtained by “improper methods, prejudice, passion,
partiality, sympathy, corruption, or mistake of law or fact”; (2) whether the award was within the
limits of what reasonable minds would find to be just compensation for the injury; and, (3)
whether the award is comparable to awards in similar cases. Id.

        “The power of remittitur should be exercised with restraint.” Silberstein v Pro-Golf of
Am, Inc, 278 Mich App 446, 462; 750 NW2d 615 (2008). “When deciding whether to grant a
motion for remittitur, the trial court must examine all the evidence in the light most favorable to
the nonmoving party to determine whether the evidence supported the jury’s award.” Taylor v
Kent Radiology, 286 Mich App 490, 522; 780 NW2d 900 (2009). Where, as here, “a jury verdict
is based in part upon pain and suffering, a trial court must balance all of the factors involved
against the general principle that there is no absolute mathematical formula or standard by which
pain and suffering can be measured; thus, the amount allowed for pain and suffering must
ordinarily rest in the sound judgment of the jury.” Palenkas, 432 Mich at 556. “If the award for
economic damages falls reasonably within the range of the evidence and within the limits of
what reasonable minds would deem just compensation, the jury award should not be disturbed.”
Silberstein, 278 Mich App at 462.
                                                -3-
       Ushe and Reliable cite Gilbert v DaimlerChrysler Corp, 470 Mich 749, 765; 685 NW2d
391 (2004):

              When a verdict is procured through improper methods of advocacy,
       misleading argument, or other factors that confound the jury’s quantification of a
       party’s injuries, that amount is inherently unreliable and unlikely to be a fair
       estimate of the injured party’s losses. Likewise, when a verdict is unsupported by
       the record or entirely inconsistent with verdicts rendered in similar cases, a
       reviewing court may fairly conclude that the verdict exceeds the amount required
       to compensate the injured party. [Id. at 765.]

They rely on this passage and focus solely on the third prong of the Palenkas test – whether the
amount actually awarded was comparable to awards in similar cases. In so doing, they
effectively ignore the evidence supporting the jury’s verdict. Instead, Ushe and Reliable spend
an inordinate amount of time setting forth a general survey of Michigan personal injury verdicts
as well as a survey of reported verdicts for automobile negligence cases to demonstrate that the
award in this case was “far outside the realm of what reasonable minds would deem just
compensation for the kind of injuries Holt sustained.” However, “[t]he only consideration
expressly authorized by [the court rule] . . . is whether the jury award is supported by the
evidence.” Palenkas, 432 Mich at 532. “There may be some cases in which it is possible to
determine objectively that a compensatory award is or is not supported by the record.” Gilbert,
470 Mich at 767. How an award compares with other cases is only one consideration; the
starting point and the primary focus should be on the evidence produced at trial.

         Viewing the evidence in a light most favorable to plaintiff, plaintiff’s injuries include not
only the original ankle injury, which has never properly healed, and a traumatic brain injury, but
also numerous other injuries stemming from complications of recovery, such as knee, shoulder,
and back problems. By all accounts at trial, plaintiff was an active individual with a robust work
habit prior to the accident, which had debilitating and permanent consequences. Plaintiff
testified regarding the effect of these injuries on his life. He was unable to care for himself and
was placed in a residential assisted living facility after being released from the hospital. At that
time, plaintiff was basically an “invalid” and felt “worthless.” It took five months before
plaintiff was able to live on his own. In the meantime he was “sitting there. Wasn’t nothing to
do” but try and heal.

         Plaintiff testified that he wears sunglasses all of the time because his eyes are “messed
up.” He sees floaters and spots. He has chronic headaches. These problems started near the
time plaintiff suffered from the pulmonary emboli. Plaintiff was doing his best to get better but
it felt like “a waste of time,” and plaintiff had been in pain every day since the March 2011
accident. Plaintiff was trying to make the best out of it but there was little he could do but sit
around. He only had transportation for doctors’ appointments. It was hard for plaintiff to get
around and he was on a long list of medications. He took a narcotic for pain, but it was “like
taking a baby aspirin.” The pain at night would often interfere with his sleep.

        The physicians who treated and evaluated plaintiff confirmed that he continued to live
with pain. Dr. Rahoul Vaidya saw plaintiff every two or three months. Vaidya testified that
plaintiff continued to experience pain and discomfort from his injuries and the pain was chronic.

                                                 -4-
Vaidya explained that trauma can take three to five years to recover from, but that plaintiff did
not seem to be making any progress and “it’s probably not going to improve dramatically, maybe
a little bit.” Dr. Mary Miller had treated plaintiff for a significant time at the rehabilitation
center. She noted that plaintiff suffered from chronic pain and depression, which was a common
side effect of chronic pain. In fact, plaintiff’s depressive symptoms were so severe that Miller
referred plaintiff to Dr. Daniel Rataj to evaluate whether plaintiff had a traumatic brain injury.
Miller testified that plaintiff would likely suffer ongoing pain and disability from his injuries
every single day for the rest of his life and that it was unlikely that plaintiff would ever recover.
He would need ongoing medical care and medications and faced a number of future surgeries
depending on how his joints held up. Rataj found plaintiff’s depression to be “striking” and
obvious at their first meeting. Plaintiff appeared socially withdrawn and extremely sad. Rataj
noted that plaintiff’s injuries changed plaintiff’s life. He went from being very motivated and a
high achiever but now lacked the energy to function at the same level. Plaintiff suffered
headaches, dizziness, sensitivity to sound and light, depression, and anxiety; he suffered from
anhedonia, which was the inability to experience pleasure. Plaintiff also had thoughts about
killing himself. Rataj agreed that it was unlikely plaintiff would ever recover. He was also at a
greater risk of developing dementia. Dr. Gerald Shiener agreed that plaintiff suffered from
chronic pain and depression. He had trouble sleeping and the lack of restorative sleep caused
him to lose initiative. Chronic pain also caused negative thinking and general misery – “You
can’t see that you’ll ever feel any better.” Plaintiff had poor memory, poor concentration,
irritability, and social withdrawal. He was extremely frustrated with himself. Every aspect of
plaintiff’s life was affected by the accident. Finally, Dr. Antoine Geffrard testified that there was
no doubt plaintiff continued to suffer irretractable pain without interruption.

       The evidence at trial provided objective support for the jury’s ultimate award. There is
no indication that the jury’s verdict was the result of passion or bias.

        Ushe and Reliable complain that plaintiff’s comments during closing argument urged the
jury to do more than simply compensate plaintiff for his injuries. However, we have examined
the record and can determine nothing inappropriate about counsel’s arguments. Moreover, the
fact that the jury awarded less than what plaintiff’s counsel requested indicates that the jury
deliberated the issue appropriately and was not influenced by passion or prejudice.

        Next, Ushe and Reliable argued that the award was the culmination of errors and
irregularities at trial but, as discussed below, there were either no errors or errors that were
harmless. There is no support for the claim that irregularities resulted in an excessive award.

        Finally, Ushe and Reliable make a constitutional argument, arguing that a grossly
excessive award for pain and suffering may violate a defendant’s due process rights. Again, they
rely on a footnote from Gilbert:

               There is also an overarching constitutional issue to consider. In State Farm
       Mut Automobile Ins. Co v Campbell, 538 US 408, 416; 123 S Ct 1513; 155 L Ed
       2d 585 (2003), the United States Supreme Court concluded that “[t]he Due
       Process Clause of the [United States Constitution’s] Fourteenth Amendment
       prohibits imposition of grossly excessive or arbitrary punishments on a
       tortfeasor.” While State Farm dealt with punitive damage awards, the due process

                                                -5-
       concerns articulated in State Farm are arguably at play regardless of the label
       given to damage awards. A grossly excessive award for pain and suffering may
       violate the Due Process Clause even if it is not labeled “punitive.” In this case,
       however, there is no need to reach this constitutional question, given the necessity
       of reversal on other grounds. [Gilbert, 470 Mich at 765 n 22.]

Unlike other cases where a panel of this court is tasked with determining whether language in an
opinion constitutes dicta, the plain language of the foregoing passage makes clear that “there is
no need to reach this constitutional question.” “Stare decisis does not arise from a point
addressed in obiter dictum.” Griswold Properties, LLC v Lexington Ins Co, 276 Mich App 551,
563; 741 NW2d 549 (2007). Moreover, the facts in Gilbert are not on point with the case at bar.
Our Supreme Court in Gilbert determined that the plaintiff’s $20 million award for non-
economic damages was excessive because “[n]ot only does the verdict exceed verdicts in similar
cases by leaps and bounds, but, as shown in this opinion, it was awarded by a jury inflamed by
hyperbolic rhetoric, prejudice-baiting argument, and unscientific expert testimony.” Gilbert, 470
Mich at 770. For example, the plaintiff’s attorney in Gilbert engaged in “inflammatory rhetoric”
by deliberately trying to “provoke the jury by supplanting law, fact, and reason with prejudice,
misleading arguments, and repeated ad hominem attacks against defendant based on its corporate
status” and by comparing the plaintiff to victims of the Holocaust. Id. at 770-771. Here,
plaintiff’s attorney did not ask the jury to suspend reason and award plaintiff a large verdict in
order to punish defendants; instead, counsel asked the jury to consider the nature and extent of
plaintiff’s injuries and the lifelong effect those injuries would have. After a thorough
examination of the lower court record, there is nothing objectionable about counsel’s behavior.

III. EVIDENCE OF AN INDEMNIFICATION AGREEMENT AND THE NOTICE OF NON-
                              PARTY FAULT

        Ushe and Reliable argue that the trial court erred in allowing testimony regarding the
meaning of an alleged indemnity agreement between CPG and Reliable and that the trial court
also erred in allowing plaintiff to admit the notice of non-party fault into evidence. We conclude
that there was nothing erroneous regarding the indemnification testimony and, while we agree
with Ushe and Reliable that the notice of non-party fault should not have been admitted into
evidence, such error was harmless.

        “A trial court’s decision to admit or exclude evidence is reviewed for an abuse of
discretion.” Edry v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010). “A court necessarily
abuses its discretion when it admits evidence that is inadmissible as a matter of law. However,
any error in the admission or exclusion of evidence will not warrant appellate relief unless
refusal to take this action appears inconsistent with substantial justice, or affects a substantial
right of the opposing party.” Craig v Oakwood Hosp, 471 Mich 67, 76; 684 NW2d 296 (2004)
(footnotes omitted). MCR 2.613(A) provides:

               An error in the admission or the exclusion of evidence, an error in a ruling
       or order, or an error or defect in anything done or omitted by the court or by the
       parties is not ground for granting a new trial, for setting aside a verdict, or for
       vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to
       take this action appears to the court inconsistent with substantial justice.

                                                -6-
The test is whether the error was harmless. Chastain v Gen Motors Corp, 467 Mich 888; 654
NW2d 326 (2002).

        Plaintiff’s attorney, responding to the so-called “fat defense,” argued that Ushe and
Reliable and CPG had previously blamed one another for the accident and then changed course
and placed all of the blame on plaintiff. Counsel noted that in the notice of non-party fault, Ushe
and Reliable claimed that CPG was negligent for failing to properly manage the ingress and
egress of vehicles in its facility but that it had abandoned that claim at trial, likely due to the fact
that Reliable would be responsible for all damages under an indemnification agreement.
Contrary to Ushe and Reliable’s position on appeal, plaintiff’s intent was not to argue for an
inflated jury award by implying that Reliable would not have to pay the judgment; instead,
counsel was merely trying to demonstrate how and why the defendants took the positions they
did.

        “Generally, all relevant evidence is admissible and irrelevant evidence is not. Evidence
is relevant if it has any tendency to make the existence of a fact that is of consequence to the
action more probable or less probable than it would be without the evidence.” Morales v State
Farm Mut Auto Ins Co, 279 Mich App 720, 729–730; 761 NW2d 454 (2008), citing MRE 402
and 401.

       Relevance divides into two components: materiality and probative value. Material
       evidence relates to a fact of consequence to the action. A material fact need not be
       an element of a crime or cause of action or defense but it must, at least, be in issue
       in the sense that it is within the range of litigated matters in controversy.
       Materiality looks to the relation between the propositions that the evidence is
       offered to prove and the issues in the case. If the evidence is offered to help prove
       a proposition that is not a matter in issue, the evidence is immaterial. [Hardrick v
       Auto Club Ins Ass’n, 294 Mich App 651, 667; 819 NW2d 28, 37 (2011) (citations
       and quotation marks omitted).]

“Evidence bearing on a witness’s credibility is always relevant.” In re Dearmon, 303 Mich App
684, 696; 847 NW2d 514 (2014); see also Powell v St John Hosp, 241 Mich App 64, 73; 614
NW2d 666 (2000). However, MRE 403 provides that even relevant evidence may be excluded
“if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”

        Ushe and Reliable first argue that the indemnification was inadmissible under MCL
500.3030 and MRE 411. To be clear, there was no evidence of an actual indemnification
between Reliable and CPG, as seems to be implied by the parties on appeal. Daniel Davis,
CPG’s safety and risk management officer, testified that he believed that Reliable, in order to
have access to the equipment at CPG, would have to be a party to a contract called the Uniform
Intermodal Interchange Agreement (UIIA). The agreement would have been between Reliable
and the Intermodal Association of North America; there was no direct agreement between the
parties. The agreement outlines the relationship between motor carriers like Reliable and
equipment providers like CPG. MCL 500.3030 provides:


                                                  -7-
       In the original action brought by the injured person, or his or her personal
       representative in case death results from the accident, as mentioned in section
       3006, the insurer shall not be made or joined as a party defendant, nor, except as
       otherwise provided by law, shall any reference whatever be made to such insurer
       or to the question of carrying of such insurance during the course of trial.
       [Footnote omitted.]

MRE 411 provides:

       Evidence that a person was or was not insured against liability is not admissible
       upon the issue whether the person acted negligently or otherwise wrongfully. This
       rule does not require the exclusion of evidence of insurance against liability when
       offered for another purpose, such as proof of agency, ownership, or control, if
       controverted, or bias or prejudice of a witness.

At issue is whether an indemnification agreement is the same as insurance under the rule and
statute.

       Ushe and Reliable cite Garvin v Detroit Bd of Ed, unpublished opinion per curiam of the
Court of Appeals, issued June 16, 2015 (Docket No. 319557), in support of their position that
indemnification agreements are treated the same as insurance. In Garvin, a panel of this Court
held:

                Although the remainder of the issues raised by defendants are rendered
       moot by our ruling, we will address one argument posed by defendants to avoid
       error in the new trial. Evidence that the individual defendants might be
       indemnified for any judgment entered against them is not admissible, just as
       evidence of the existence or nonexistence of liability insurance is not admissible
       under MRE 411. The issue of indemnification, like the issue of liability insurance,
       is irrelevant because it “ ‘tends to influence and prejudice jurors by imparting to
       them the information that whatever verdict they may render will be immaterial to
       the defendant, since he will not have to pay for it.’ ” Id. at 521–522, quoting 29
       Am Jur 2d, Evidence, § 404, p. 458. See Felsner v McDonald Rent–A–Car, Inc,
       173 Mich App 518; 434 NW2d 178 (1988). If a party raises an objection to
       another party’s attempt to question a witness about indemnification, the
       appropriate remedy is a curative instruction advising the jury that the question of
       indemnification has no bearing on any issue in the case and that it must refrain
       from any inference, speculation, or discussion about indemnification. [Id. at slip
       op, p 6 (footnote omitted.]

Garvin, as an unpublished opinion, has no precedential value. MCR 7.215(C)(1). The panel’s
one-paragraph analysis flies in the face of the plain language of MRE 411. An appellate court
“uses the principles of statutory construction when interpreting a Michigan court rule. We begin
by considering the plain language of the court rule in order to ascertain its meaning.” Henry v
Dow Chem Co, 484 Mich 483, 495; 772 NW2d 301 (2009).




                                               -8-
       The primary goal when interpreting a statute is to discern the intent of the
       Legislature by focusing on the most reliable evidence of that intent, the language
       of the statute itself. When legislative intent is clear from the language, no further
       construction is required or permitted. [Fairley v Dep’t of Corrections, 497 Mich
       290, 296–297; 871 NW2d 129, recon den 498 Mich 864 (2015).]

The plain language of the rule does not reference indemnification.

         Moreover, Garvin is distinguishable from the case at bar. Evidence of a party’s liability
insurance is inadmissible because such evidence may result in large verdicts if the jury believes
the defendants are not on the hook for the judgment. Here, evidence of an indemnification
agreement was not admitted to inform the jury that CPG would not have to pay for any judgment
nor was it used to show that a party acted negligently or wrongfully. Instead, plaintiff used the
indemnification agreement to demonstrate how the various defendants were connected and how
their theories of liability had shifted. This was proper to show Davis’s bias as a witness. Davis
testified that Ushe was not negligent under the circumstances. An indemnification agreement
might explain why Ushe and Reliable’s accident reconstructionist did not take into account
CPG’s conduct and, likewise, why CPG’s accident reconstructionist did not factor in Ushe’s
conduct. Because there is no controlling case law that provides an indemnification agreement is
the same as insurance under MRE 411 and because evidence of an indemnification agreement
was used for a proper purpose, the trial court did not abuse its discretion regarding references to
an indemnification agreement.

        More problematic is the trial court’s decision to allow the notice of non-party fault to be
admitted into evidence as a “pleading.” Ushe and Reliable filed the notice as a means of
allocating fault under Michigan’s tort reform. At trial, plaintiff sought to use the notice of non-
party fault as an admission under MRE 801(d)(2). “[U]nder MRE 801(d)(2), statements in
pleadings may be treated as admissions.” Hunt v CHAD Enterprises, Inc, 183 Mich App 59, 63;
454 NW2d 188 (1990). However, MCR 2.110, which defines what a pleading is, is silent on a
notice of non-party fault. The rule provides:

       (A) Definition of “Pleading.” The term “pleading” includes only:

       (1) a complaint,

       (2) a cross-claim,

       (3) a counterclaim,

       (4) a third-party complaint,

       (5) an answer to a complaint, cross-claim, counterclaim, or third-party complaint,
       and

       (6) a reply to an answer.

       No other form of pleading is allowed. (Emphasis added.)


                                                -9-
Therefore, the trial court erred when it concluded that the notice of non-party fault was
admissible as a pleading.

         Plaintiff concedes that the notice of non-party fault was not a pleading under MCR 2.110,
but still maintains that it was “tantamount to a pleading” for which MRE 801(d)(2) applied. We
disagree. There is a difference between a statement of fact or admission to which the rule applies
and a mere allegation or alternative theory. Larion v City of Detroit, 149 Mich App 402, 406-
407; 386 NW2d 199 (1986). Alternative pleadings are generally accepted and “a party should
not be placed in the position of having to forego a claim at the risk of having inconsistent
allegations treated as admissions.” Id. at 407. The Court in Larion explained:

             Our decision is in accord with the trend described in McCormick on
       Evidence (3d ed, 1984), § 265, pp. 780-782:

               “An important exception to the use of the pleadings in the case as
               admissions must be noted. A basic problem which attends the use of
               written pleadings is uncertainty whether the evidence as it actually unfolds
               at trial will prove the case described in the pleadings. Traditionally a
               failure in this respect, i.e., a variance between pleading and proof, could
               bring disaster to the pleader’s case. As a safeguard against developments
               of this kind, the common law evolved the use of counts, each a complete
               separate statement of a different version of the same basic claim,
               combined in the same declaration, to take care of variance possibilities.
               The same was done with defenses. Inconsistency between counts or
               between defenses was not prohibited; in fact it was essential to the
               successful use of the system. Also essential to the success of the system
               was a prohibition against using allegations in one count or defense as
               admissions to prove or disprove allegations in another. For a time, under
               the influence of the Field Code of 1848, the view prevailed that in a given
               case there could exist only one set of facts and that inconsistent statements
               and defenses were therefore not allowable. Nevertheless, uncertainty has
               persisted as to how a case will in fact develop at trial, and some procedure
               is needed for dealing with problems of variance. The modern equivalent of
               the common law system is the use of alternative and hypothetical forms of
               statement of claims and defenses, regardless of consistency. It can readily
               be appreciated that pleadings of this nature are directed primarily to
               giving notice and lack the essential character of an admission. To allow
               them to operate as admissions would render their use ineffective and
               frustrate their underlying purpose. Hence the decisions with seeming
               unanimity deny them status as judicial admissions, and generally disallow
               them as evidential admissions.

               “The trend is to expand the application of the exception described above to
               the general rule of admissibility to include, not only the common law
               practice and modern hypothetical and alternative allegations, but in
               addition situations in which a more skillful pleader would have avoided
               the pitfalls of admissions by resorting to one of those techniques. * * *.

                                               -10-
               The same trend is evident in cases involving separate actions against
               different defendants to recover for the same injury. The trend is consistent
               with the prevailing view that the primary purpose of pleadings is to give
               notice and that alternative or hypothetical allegations are not usable as
               admissions, but the extent to which it will prevail is difficult to estimate.”
               (Footnotes omitted; emphasis added.)

       [Larion, 149 Mich App at 408–400.]

Defense counsel states it best in her appellate brief: “[T]he purpose of the non-party fault
procedures is to provide a plaintiff with notice that another party may be at fault, not to lock a
defendant into one position, preclude that defendant from any inconsistent allegations throughout
the course of the proceedings, and deprive that defendant of its right to devise its own trial
strategy.”

        However, although the trial court erred in allowing plaintiff to introduce the notice of
non-party fault into evidence, the error was harmless because Ushe testified to the exact
allegations contained within the notice:

               Q. In paragraph one [of the notice of nonparty at fault] here’s what is [sic]
       says, [CPG] is a nonparty at fault for failure to properly and adequately monitor
       the ingress and egress of vehicular traffic within the inspection area of CPG
       resulting in the accident that give [sic] rise to plaintiff’s original complaint. Did I
       read that right?

               A. Yes.

              Q. You just told the jury you agreed with that. You think the way in
       which CPG had this whole thing set up caused and/or contributed to my client’s
       accident and injury; don’t you?

               A. Yes.

               Q. Wherefore, defendants; Amarild Ushe; that’s you?

               A. Yes.

              Q. And Reliable Transportation Services, LLC respectfully request that
       this Honorable Court instruct the jury at the time of trial that they are to assess a
       percentage of fault attributable to the nonparty . . . You agree with that, don’t
       you?

               A. Yes.

                                                   ***

              Q. You agree with this statement by [the attorney] on your behalf that this
       accident in part is because of CPG and what they did wrong.

                                                -11-
               A. I don’t write this.

               Q. I know, but you agree. You already told me three times; agreed?

               A. Yes.

               Q. So you’re not backing off that in this trial, are you?

               A. No.

Even without the direct reference to the notice of non-party fault, Ushe’s testimony confirms that
he believed the situation at CPG was at least partially to blame for the accident. Any error was
harmless.

                           IV. GREAT WEIGHT OF THE EVIDENCE

        Ushe and Reliable argue that the jury’s verdict was against the great weight of the
evidence and that plaintiff was at fault for the accident. They note that (1) plaintiff was on his
cell phone at the time of the accident; (2) plaintiff was not wearing a reflective vest; (3) plaintiff
should have been able to see Ushe’s cab move; (4) plaintiff stood directly in the line of travel of
Ushe’s rear wheels; (5) plaintiff failed to appreciate the sound of Ushe starting his truck and
releasing the air brake; and, (6) plaintiff had been to CPG on numerous occasions and knew that
adjacent trucks moved forward once cleared by inspection. Ushe and Reliable contend that the
jury was likely improperly influenced by impermissible expert testimony and that the jury was
erroneously instructed regarding memory loss. We disagree with each of these claims.

        Ushe and Reliable first argue that they were entitled to a directed verdict because the
jury’s comparative negligence finding was against the great weight of the “undisputed” evidence.

       We review for an abuse of discretion a trial court’s denial of a motion for new
       trial. When a party challenges a jury’s verdict as against the great weight of the
       evidence, this Court must give substantial deference to the judgment of the trier of
       fact. If there is any competent evidence to support the jury’s verdict, we must
       defer our judgment regarding the credibility of the witnesses. [Allard v State
       Farm Ins Co, 271 Mich App 394, 406–407; 722 NW2d 268 (2006) (footnotes
       omitted).]

        MCR 2.611(1)(e) provides that a new trial may be granted if the verdict is against the
great weight of the evidence or contrary to law. “But a jury’s verdict should not be set aside if
there is competent evidence to support it,” which requires a review of “the whole body of
proofs.” Dawe v Bar-Levav & Assoc (On Remand), 289 Mich App 380, 401; 808 NW2d 240
(2010).

       Ushe and Reliable cite Modzel v Norwalk Truck Lines, 325 Mich 693; 39 NW2d 226
(1949) in support of their claim that plaintiff placed himself in danger. However, Modzel was
decided under the old contributory negligence standard, which has been replaced by the
comparative negligence standard. Placek v City of Sterling Hts, 405 Mich 638, 650; 275 NW2d
511, 514 (1979) (“We hold, in the interest of justice for all litigants in this state, that the doctrine

                                                 -12-
of comparative negligence hereby replaces the doctrine of contributory negligence . . .”). Thus,
while the plaintiff’s contributory negligence acted as a complete bar, plaintiff’s alleged
comparative negligence in this case was considered and properly apportioned.

       Defendants then discuss the evidence at trial, claiming that even plaintiff’s own experts
believed that plaintiff placed himself in the path of danger. Defendants claim that plaintiff’s
biomedical engineer expert, Dr. Jamie Williams, testified that plaintiff was the one who put
himself in the position of standing within the path of Ushe’s tires. But defendants provide an
incomplete reference to Williams’s testimony. On re-direct, she also testified:

               Q. He’s only in the path if the truck moves.

               A. Correct.

              Q. If the truck stops because he’s close enough because you see him in
       the rearview mirror, because he’s anywhere near the rear wheel, the accident
       doesn’t happen.

               A. Correct.

         Ushe and Reliable also contend that plaintiff’s accident reconstructionist, Timoth Abbo,
testified that plaintiff placed himself in the path of the rear chassis tires. But, again, this is not a
fair representation of Abbo’s testimony. Abbo testified that the fact that Ushe was moving
forward at the time of the accident indicated that plaintiff was positioned in front of the wheel
before the truck moved and, therefore, was there to be seen if Ushe had checked his mirror. The
mirrors were designed to look down the sides of the vehicle. If Ushe had actually looked, he
would have seen plaintiff. There was no evidence that plaintiff walked into the wheel.

        Ushe and Reliable’s arguments regarding plaintiff’s comparative fault is essentially a
request that this Court usurp the jury’s role in deciding matters of witness credibility. Even if
plaintiff was negligent in all of the ways that they claim, there was ample evidence to support the
jury’s allocation of fault.

        Ushe and Reliable next argue that the jury’s comparative negligence finding was
influenced by the trial court erroneously giving M Civ JI 10.09 regarding memory loss. Claims
of instructional error are generally reviewed de novo. Lewis v LeGrow, 258 Mich App 175, 211;
670 NW2d 675 (2003). “MCR 2.516(D)(2) states that the trial court must give a jury instruction
if a party requests such instruction, and it is applicable to the case. We review for abuse of
discretion the trial court’s determination whether a standard jury instruction is applicable and
accurate.” Lewis, 258 Mich App at 211.

       The trial court gave this standard instruction:

               It is alleged that the plaintiff has a loss of memory concerning the facts of
       this case and it was caused by the occurrence. If you determine that the plaintiff
       had a loss of memory that was caused by the occurrence, you may infer that the
       plaintiff was not negligent, however, you should weight [sic] all the evidence in
       determining whether the plaintiff was or was not negligent.

                                                 -13-
There is nothing objectionable about this standard instruction, which advises the jury that if it
believes that plaintiff suffered from memory loss as a result of the accident, it may infer that
plaintiff was not negligent, but that the jury should still weigh all the evidence in determining
plaintiff’s comparative negligence.

       Finally, Ushe and Reliable complain that the jury was improperly influenced by
impermissible expert testimony. “[T]he qualification of a witness as an expert and the
admissibility of the testimony of the witness are in the trial court’s discretion and we will not
reverse on appeal absent an abuse of that discretion.” Surman v Surman, 277 Mich App 287,
304–305; 745 NW2d 802 (2007).

         Ushe and Reliable complain that Abbo did not investigate the accident himself and did
not perform any tests or obtain measurements. Instead, he simply observed CPG and relied on
witnesses’ testimony. However, these things were explored during cross-examination and the
jury was made aware of any alleged deficiencies in Abbo’s analysis. Issues of credibility,
including evaluating expert testimony, “should be left for the fact-finder.” Dawe, 289 Mich App
at 401. It appears that, at least on appeal, Ushe and Reliable do not challenge Abbo’s
qualifications, only his opinions. Instead, Ushe and Reliable complain that the trial court
impermissibly allowed Abbo to testify that defendants were liable while plaintiff was not. Abbo
testified that plaintiff was not at fault for the accident. The trial court denied defendants’ request
for a curative instruction noting that the jury “can disregard his opinion.”

       Citing, O’Dowd v Linehan, 385 Mich 491; 189 NW2d 333 (1971), Ushe and Reliable
argue that it was error to allow an accident reconstruction expert to testify as to the parties’ fault.
However, O’Dowd has been subsequently clarified.

              Waste Management argues that prejudice resulted because the accident
       reconstructionist improperly testified in such a way so as to fix fault or identify
       who was negligent. We disagree.

               Waste Management relies primarily on O’Dowd v Linehan, 385 Mich 491,
       189 NW2d 333 (1971). We first note that O’Dowd was decided before the
       adoption of MRE 704, which states that “[t]estimony in the form of an opinion or
       inference otherwise admissible is not objectionable because it embraces an
       ultimate issue to be decided by the trier of fact.” Moreover, O’Dowd was one of
       the early cases dealing with accident reconstruction testimony and, as shown by
       the concurrence by Justice Williams, there was concern about the reliability and
       method of the expert in that case. The crucial issue in O’Dowd was which of two
       cars was in the wrong lane when the collision occurred, id. at 510, 189 NW2d
       333, and the expert’s attempt to describe the positions of the cars and his
       determination which driver had been in the wrong lane was what the Court
       viewed to be an attempt to “fix the blame” for the accident. Id. at 513, 189 NW 2d
       333. Such testimony as to accident causation has become routine since the
       adoption of MRE 704 and we do not believe that O’Dowd should be read to bar
       an accident reconstructionist from testifying about what and whose actions caused
       the accident. See Ruddock v Lodise, 413 Mich 499; 320 NW2d 663 (1982) (expert
       testimony that the trial court improperly concluded, relying on O’Dowd, should

                                                 -14-
       have been excluded because it embraced the ultimate issue to be decided by the
       jury was permissible under MRE 704 where the testimony could aid the jury in
       determining whether the defendant failed to maintain the road in a reasonably safe
       condition); see also Portelli v IR Constr Products Co, Inc, 218 Mich App 591,
       602, 554 NW 2d 591 (1996) (“Plaintiff’s expert found fault . . .”). Accordingly,
       the trial court did not abuse its discretion by permitting the accident
       reconstructionists to opine as to fault. [Freed v Salas, 286 Mich App 300, 337–
       338; 780 NW2d 844 (2009).]

      The jury’s verdict was not against the great weight of the evidence, was not the result of
improper instructions, and was not the result of inappropriate expert testimony.

      V. INSTRUCTIONS ON COMPARATIVE FAULT RELATIVE TO PLAINTIFF’S
                               DAMAGES

        Ushe and Reliable argue that the jury verdict form and the instructions unduly
emphasized that plaintiff’s damages would be reduced by his comparative fault. This issue is
unpreserved. “To preserve an instructional issue for appeal, a party must request the instruction
before instructions are given and must object on the record before the jury retires to deliberate.”
Heaton v Benton Const Co, 286 Mich App 528, 537; 780 NW2d 618 (2009). “The failure to
timely and specifically object precludes appellate review absent manifest injustice.” Id.

        Ushe and Reliable do not claim that there was an inaccurate statement of law; instead,
they argue that the cumulative nature of the instructions and the verdict form unduly emphasized
the issue of comparative fault and the resultant effect on a possible jury award. “[E]rror may
result where the instructions to the jury are unnecessarily repetitive and argumentative.” Thon v
Saginaw Paint Mfg Co, 120 Mich App 745, 748; 327 NW2d 551 (1982). The Thon Court cited
Mack v Precast Industries, Inc, 369 Mich 439; 120 NW2d 225 (1963), wherein the trial court
instructed the jury 16 times that the plaintiff would be precluded from recovery if her decedent
were guilty of contributory negligence, “however slight.” The repetitious instruction was
erroneous, not simply because it was repeated so frequently, but because the language “however
slight” unduly emphasized the plaintiff’s contributory negligence as it related to the defendants’
negligence. Here, the instructions were legally correct and in keeping with the standard
instructions. Moreover, “[j]ury instructions should be reviewed in their entirety, not extracted
piecemeal to establish error in isolated portions.” Bachman v Swan Harbour Ass’n, 252 Mich
App 400, 424; 653 NW2d 415 (2002). Although Ushe and Reliable make it appear as though the
trial court unnecessarily repeated comparative negligence instructions, it is clear upon reviewing
the record that these instructions were properly given in light of the complexity of trial and the
fact that there were multiple defendants and multiple theories of liability. Finally, even when
there is instructional error, reversal is not warranted “if, on balance, the theories of the parties
and the applicable law were adequately and fairly presented to the jury.” Murdock v Higgins,
454 Mich 46, 59; 559 NW2d 639 (1997).

        We decline Ushe and Reliable’s request to find the standard instructions prejudicial as a
matter of law because “the jury does not need the information imparted” where “the effect of a
jury’s comparative negligence finding is implemented by the trial judge, not the jury.” Although
jury instructions do not carry the force of law, Shinholster v Annapolis Hosp, 255 Mich App 339,

                                               -15-
350 n 8; 660 NW2d 361 (2003), Ushe and Reliable seem to claim that the trial court should have
sua sponte invalidated the standard instructions. This novel argument was not raised in the trial
court.

VI. INSTRUCTIONS ON MITIGATION, EGGSHELL PLAINTIFFS, AND AGGRAVATION
                      OF PRE-EXISTING CONDITIONS

       Ushe and Reliable first argue that the trial court erred when it refused to instruct the jury
on plaintiff’s failure to mitigate damages. We disagree.

       M Civ JI 53.05 provides:

       A person has a duty to use ordinary care to minimize his or her damages after [he
       or she / his or her property] has been [injured / damaged]. It is for you to decide
       whether plaintiff failed to use such ordinary care and, if so, whether any damage
       resulted from such failure. You must not compensate the plaintiff for any portion
       of [his / her] damages which resulted from [his / her] failure to use such care. [M
       Civ JI 53.05 Mitigation of Damages--Failure to Exercise Ordinary Care.]

The trial court did not abuse its discretion when it refused to give the mitigation instruction
where there was no record support for such an instruction. Plaintiff’s orthopedic surgeon, Dr.
Vaidya, testified that plaintiff was attempting to do what was asked of him. Plaintiff attended his
visits and it was not as though “he didn’t show up.” Vaidya explained that trauma can take three
to five years to recover from, but that plaintiff did not seem to be making any progress and “it’s
probably not going to improve dramatically, maybe a little bit.” Again, it was not for lack of
trying – “He seems to try very hard.” Geffrard testified that plaintiff suffered from depression,
which resulted in “difficulty applying himself in therapy. He was difficult to talk to so he didn’t
listen real well in terms of physician instruction because he didn’t feel there was hope.”
However, Geffrard testified that it was not as though plaintiff was non-compliant or just did not
want to apply himself. The fact was that he was in significant pain. Plaintiff did not
intentionally block his recovery, nor did he exaggerate his symptoms. He appeared to be “trying
as best he could.” The trial court did not err in declining to give the requested instruction.

        Ushe and Reliable next argue that the trial court erred in giving the so-called “eggshell
plaintiff” instruction found in M Civ JI 50.10, as well as the measure of damages found in M Civ
JI 50.01 and the aggravation of pre-existing conditions in M Civ JI 50.04. However, the record
supports the instruction.

       Geffrard testified that plaintiff was not unusually susceptible to the syndesmosis injury
because of his weight in the context of the mechanism of plaintiff’s original injury. At trial,
defendants implied that plaintiff’s recovery was hampered by his excessive weight. Plaintiff’s
attorney responded by presenting testimony that plaintiff’s size had nothing to do with it. The
physicians agreed that plaintiff’s problems all stemmed from, or were exacerbated by, the
accident. Vaidya acknowledged that plaintiff had previous complaints of back pain but plaintiff
was not disabled at the time and did not miss work. In spite of his prior complaints, plaintiff
never had back surgery and appeared to be able to continue to work. Plaintiff’s poor prognosis
could occur in someone who was not obese. Geffrard testified that plaintiff’s recovery was also

                                               -16-
hampered by the progression of his degenerative back problems and his gait disturbance, which
caused problems with other joints such as his hips. He also had issues with his shoulder. The
rotator cuff injury was either caused by the accident or a result of the accident. All of these
issues contributed to plaintiff’s lack of mobility. Therefore, contrary to Ushe and Reliable’s
claims, there was record evidence to support plaintiff’s theories of susceptibility to injury,
aggravation of pre-existing injury, and indivisible damages. Again, other than cross-examining
plaintiff’s witnesses, defendants presented no medical testimony to refute the extent and nature
of plaintiff’s injuries.

                                  VII. JURY VERDICT FORM

        Ushe and Reliable argue that listing plaintiff’s contested injuries as conceded on the
verdict form and in the jury instructions unduly and prejudicially influenced the verdict. We
disagree.



 The verdict form provided:

                                    NON-ECONOMIC LOSS

               11. What is the total amount of Holt’s damages for past non-economic
               loss for injuries to his right ankle and leg, left shoulder, lumbar disc
               herniation, four surgeries, traumatic brain injury, chronic pain, scars,
               physical pain and suffering, mental anguish, etc., from the date he was
               injured to the present?

                                                   ***

               12. If you find that Holt will sustain damages in the future of non-
               economic loss for injuries to his right ankle and leg, left shoulder, lumbar
               disc herniation, four surgeries, traumatic brain injury, chronic pain, scars,
               physical pain and suffering, mental anguish, etc., give the total amount for
               each year in which he will sustain damages.

         Once again Ushe and Reliable never objected to any of the foregoing instructions. In
fact, at trial Ushe and Reliable indicated that they had reviewed plaintiff’s proposed verdict form
and “[t]here’s going to be some objections to some of the verbiage within there that we need to
discuss and the court will need to rule on in terms of the verdict form,” but there is no discussion
beyond that. Citing to a Nebraska case, Nguyen v Rezac, 256 Neb 458; 590 NW2d 375 (1999),
Ushe and Reliable argue that the verdict form was misleading and confusing because the form
makes it appear as though plaintiff’s injuries were conceded when, in fact, they were hotly
contested. However, there is nothing objectionable about the verdict form, which was based on
the model instructions in M Civ JI 50.21. Contrary to Ushe and Reliable’s assertions, the verdict
form did not indicate that plaintiff’s injuries were conceded.

                                 VIII. CUMULATIVE ERROR


                                               -17-
       Finally, although Ushe and Reliable indicate that the cumulative error at trial mandates
reversal, 1 their real claim is that plaintiff’s counsel’s behavior deprived them of a fair trial.

       When reviewing an appeal asserting improper conduct of an attorney, the
       appellate court should first determine whether or not the claimed error was in fact
       error, and, if so, whether it was harmless. If the claimed error was not harmless,
       the court must then ask if the error was properly preserved by objection and
       request for instruction or motion for mistrial. If the error is so preserved, then
       there is a right to appellate review; if not, the court must still make one further
       inquiry. It must decide whether a new trial should nevertheless be ordered
       because what occurred may have caused the result or played too large a part and
       may have denied a party a fair trial. If the court cannot say that the result was not
       affected, then a new trial may be granted. Tainted verdicts need not be allowed to
       stand simply because a lawyer or judge or both failed to protect the interests of
       the prejudiced party by timely action. [Reetz v Kinsman Marine Transit Co, 416
       Mich 97, 102-103; 330 NW2d 638 (1982) (footnotes omitted).]

“An attorney’s comments usually will not be cause for reversal unless they indicate a deliberate
course of conduct aimed at preventing a fair and impartial trial.” Hunt v Freeman, 217 Mich
App 92, 95; 550 NW2d 817 (1996). “Reversal is required only where the prejudicial statements
of an attorney reflect a studied purpose to inflame or prejudice a jury or deflect the jury’s
attention from the issues involved.” Id. Stated differently, “[r]eversal is required only where the
prejudicial statements reveal a deliberate attempt to inflame or otherwise prejudice the jury, or to
deflect the jury’s attention from the issues involved.” Zaremba Equip, Inc v Harco Nat Ins Co,
302 Mich App 7, 21; 837 NW2d 686 (2013).

       In arguing that plaintiff’s counsel’s behavior deprived them of a fair trial, Ushe and
Reliable point to this Court’s decision in Badalamenti v William Beaumont Hosp-Troy, 237 Mich
App 278; 602 NW2d 854 (1999). In that case, we concluded that the plaintiff’s attorney’s
behavior at trial was “truly egregious” and “far excee[ed] permissible bounds.” Id. at 289. The
attorney “completely tainted the proceedings” by repeatedly and without basis in fact accusing
the witnesses of engaging in conspiracy and collusion, and fabricating evidence. Id. at 290. He
repeatedly belittled the witnesses and suggested that they suppressed and destroyed evidence. Id.
at 291. The attorney even accused one of the defendants of abandoning the plaintiff to engage in
a sexual tryst with a nurse, while emphasizing the defendant’s corporate power, and improperly
appealing to the jurors’ self-interest as taxpayers. Id. We also noted the trial court’s failure to
properly restrain the attorney from behaving in such a manner. Id. at 293.




1
  “In order for cumulative evidentiary error to mandate reversal, consequential errors must result
in substantial prejudice that denied the aggrieved party a fair trial.” Lewis v LeGrow, 258 Mich
App 175, 200; 670 NW2d 675 (2003). “[A]ctual errors must combine to cause substantial
prejudice to the aggrieved party so that failing to reverse would deny the party substantial
justice.” Id. at 201


                                               -18-
         Plaintiff’s attorney’s conduct in this case is far different from what occurred in
Badalamenti. As discussed at length above, counsel questioned witnesses regarding the notice of
non-party fault and the indemnification agreement as a means of attacking credibility, not in an
effort to show that “Reliable and CPG had nefariously colluded against Holt” as defendants
argue. While Ushe and Reliable complain that they never called plaintiff or any other witness a
“liar,” they did accuse plaintiff of purposefully lying about his health in the years leading up to
the accident. Counsel did nothing improper by arguing that CPG’s accident reconstructionist
was not fully credible because she did not consider Ushe’s accidents when rendering her opinion.
Nor did counsel “launch a tirade” against the forensic accounting expert who used average
trucking information when formulating his opinion; instead, counsel argued that, in light of
evidence that plaintiff was building a fleet, plaintiff should not have been considered an average
trucker. There was nothing wrong with counsel arguing that defendants’ fat defense was
reprehensible.

         There was no effort to divert the jury’s attention from the actual merits of plaintiff’s case.
In fact, a review of the record as a whole reveals that counsel’s comments were supported by the
facts elicited at trial. None of counsel’s “objections, speeches, comments, and arguments qualify
as inflammatory, extreme, or deliberately misleading. Zaremba, 302 Mich App at 22.

       Finally, Ushe and Reliable seem to imply that counsel’s behavior was especially
egregious where Ushe had “language impediments which prevented him from understanding the
questions being asked of him at trial.” MCR 1.111(B)(1) provides:

       If a person requests a foreign language interpreter and the court determines such
       services are necessary for the person to meaningfully participate in the case or
       court proceeding, or on the court's own determination that foreign language
       interpreter services are necessary for a person to meaningfully participate in the
       case or court proceeding, the court shall appoint a foreign language interpreter for
       that person if the person is a witness testifying in a civil or criminal case or court
       proceeding or is a party.

However, neither Ushe nor his attorney nor counsel for CPG ever requested an interpreter and
the record does not support any inability of Ushe to understand and answer the questions posed
to him.

       Affirmed. As the prevailing party, plaintiff may tax costs. MCR 7.219.

                                                               /s/ Michael J. Talbot
                                                               /s/ Kirsten Frank Kelly
                                                               /s/ Stephen L. Borrello




                                                 -19-
