                         STATE OF MICHIGAN

                            COURT OF APPEALS



RICHARD BREHMER,                                                  UNPUBLISHED
                                                                  March 17, 2015
              Plaintiff-Appellee,

v                                                                 No. 318839
                                                                  Lenawee Circuit Court
STATE FARM MUTUAL INSURANCE                                       LC No. 11-004097-NF
COMPANY and NICOLE ALISE ROTHMAN,

              Defendants,

and

AUTO OWNERS INSURANCE COMPANY,

              Defendant-Appellant.



Before: BOONSTRA, P.J., and SAWYER and O’CONNELL, JJ.

PER CURIAM.

      In this third-party auto accident case, defendant Auto Owners Insurance Company (Auto
Owners) appeals as of right the trial court’s order granting Richard Brehmer’s motion for
judgment notwithstanding the verdict (JNOV). We reverse.

                         I. FACTS AND PROCEDURAL HISTORY

                                    A. TRIAL TESTIMONY

         Brehmer and Nicole Rothman were involved in a traffic accident in May 2010. Brehmer
testified that he was driving a tractor for the City of Adrian when Rothman ran into it. The
tractor flipped over on Brehmer, and his right arm and shoulder were injured. Brehmer had an
underinsured motorist policy with Auto Owners. The only issues at trial were whether
Brehmer’s shoulder injury constituted a serious impairment of a bodily function and whether
Brehmer failed to mitigate his damages.

      Brehmer testified that he began physical therapy shortly after the accident. In July 2010,
Brehmer’s family physician referred him to Dr. Michael Diment. Brehmer testified that Dr.
Diment prescribed him physical therapy, which he did, but his shoulder continued to hurt. Dr.

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Diment took an MRI of Brehmer’s shoulder. Dr. Diment testified that Brehmer had suffered
three shoulder injuries: a rotator cuff tear, a deformity to the dimple in the bone, and an injury to
the shoulder socket. Brehmer testified that Dr. Diment performed surgery on his shoulder in
October 2010.

         According to Brehmer, he discussed the exercises he had learned at his prior physical
therapy with Dr. Diment, and Dr. Diment told Brehmer to do those exercises at home. Brehmer
testified that he did the exercises for 10 to 15 minutes a day, and Dr. Diment said that his at-
home exercises were “fine.” According to Dr. Diment, he ordered Brehmer to do exercises at
home. Dr. Diment acknowledged that in November 2010, he noted in Brehmer’s file that
Brehmer might need formal physical therapy. However, Dr. Diment opined that Brehmer’s at-
home exercises were sufficient in lieu of physical therapy. Dr. Diment testified that physical
therapy could not address Brehmer’s bone dimple or shoulder socket injury.

         Brehmer had not improved by April 2011. Dr. Diment told Brehmer that he could have
an additional surgery that would manipulate Brehmer’s shoulder under anesthesia. Dr. Diment
testified that the procedure was “somewhat risky,” unpredictable, and that it could lead to a
different pain and instability. Brehmer testified that he decided that he did not want to have the
surgery because Dr. Diment told him that there was a risk he could lose his arm or that the
surgery would make his problem worse. Dr. Diment supported Brehmer’s decision not to have
further surgery.

       Dr. Diment testified that as of September 2011, Brehmer had improved his range of
motion with home exercises. Dr. Diment testified that Brehmer was a compliant patient and he
believed that Brehmer was doing his at-home exercises. Dr. Diment did not recommend another
surgery or physical therapy. Dr. Diment opined that physical therapy at a rehabilitation center
would not have given Brehmer a better result than the exercises he did at home.

        Aaron Deline, Brehmer’s physical therapist until August 2010, testified that he believed
that physical therapy would have helped Brehmer to improve his range of motion. Deline
acknowledged that a patient needs a doctor’s prescription to receive physical therapy and that Dr.
Diment did not refer Brehmer back to physical therapy. Deline testified that Brehmer was
compliant at physical therapy sessions, but his therapy notes questioned Brehmer’s compliance
with at-home exercises.

       Dr. Joseph Salama testified that he interviewed and examined Brehmer in September
2010 and February 2011. According to Dr. Salama, Brehmer needed formal physical therapy to
increase his range of motion and decrease his pain. Dr. Salama would have recommend
manipulating Brehmer’s shoulder under anesthesia and that, if the manipulation went well, it
would have a 70 percent chance of success. Dr. Salama did not believe that Brehmer had failed
to comply with Dr. Diment’s advice.

       Dr. Brian Chodoroff testified that he specializes in physical medicine and rehabilitation
and that he reviewed Brehmer’s medical records. According to Dr. Chodoroff, Brehmer’s home
exercises were inadequate, and he should have done physical therapy to increase his range of
motion. Dr. Chodoroff also opined that Brehmer might benefit from a manipulation under
anesthesia, but testified that if Brehmer did not want to undergo a manipulation, he should at

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least obtain a cortisol injection and physical therapy. Dr. Chodoroff testified that he would not
expect a patient to get formal physical therapy if his doctor did not prescribe it, and he opined
that Brehmer’s records did not indicate that he had failed to comply with Dr. Diment’s orders.

         Dr. Casey Bartman testified that he is an orthopedic surgeon who reviewed Brehmer’s
medical records. According to Dr. Bartman, Brehmer’s shoulder injury was severe and Brehmer
would have benefitted from formal physical therapy after surgery because it would have reduced
his stiffness and pain. Dr. Bartman opined that a steroid injection and an aggressive course of
physical therapy would improve Brehmer’s range of motion and decrease his pain. Dr. Bartman
testified that there was no evidence that Brehmer had failed to perform his home exercises, but
he opined that home exercises are not very beneficial to a shoulder joint injury.

                                 B. PROCEDURAL HISTORY

       The jury awarded Brehmer $150,000 in past noneconomic damages, but it found that
Brehmer did not have future noneconomic damages. The jury also found that Brehmer failed to
mitigate his damages and it reduced the verdict by $50,000. On April 16, 2013, the trial court
entered a judgment on the verdict for $100,000, with various costs and fees.

         On May 7, 2013, Brehmer filed a motion for JNOV, new trial, or additur. According to
Brehmer, Auto Owners did not meet its burden of proof to show that Brehmer failed to mitigate
his damages because it did not show Brehmer failed to follow his doctor’s advice. In response,
Auto Owners presented several reasons why the jury could have found that Brehmer failed to
mitigate his damages, including that Brehmer had failed to participate in formal physical therapy,
had refused a surgery that Dr. Diment recommended, and might have financial motivations to
fail to seek improvement.

       After hearing arguments on the motion, the trial court ruled as follows:

               It is true that the jury completed the verdict form awarding plaintiff
       150,000. They subtracted $50,000 for plaintiff’s alleged failure to mitigate his
       damages. They awarded zero dollars for future physical damages. Defendants’
       expert witness testified if plaintiff had undergone formal physical therapy, even to
       this day, that being the day of trial, he would’ve gained greater range of motion or
       less pain.

              I did not find that in my own assessment, and I was taken [a]back by the
       jury penalizing [Brehmer] significantly for what they alleged to be failure to
       mitigate.

               Defendants’ experts testified there was no evidence that [Brehmer] failed
       to follow his doctor’s order. Dr. Diment, treating physician, the person in the best
       position to make a decision about [Brehmer’s] actions, testified unequivocally
       that he never prescribed physical therapy for [Brehmer] and that [Brehmer] made
       all decisions—and that he made all decisions regarding [Brehmer’s] care and
       treatment, and that they together determined that home exercises were in fact in
       [Brehmer’s] best interest, and Dr. Diment fully supported that determination.


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              I think that what was anticipated was not far off the mark, and I think that
       from the jury verdict’s determ—the jury verdict supports that there may very well
       have been significant confusion with regard to the jurors speculating with regard
       to [Brehmer’s] duty to follow non-treating physicians’ recommendations.

              If mitigation of damages is in fact a doctrine that seeks to minimize
       economic harm arising from wrong doing, I don’t think that [Brehmer] did
       anything wrong. I think that it was clear from the testimony that [Brehmer]
       followed his doctor’s orders and that Dr. Diment prescribed and allowed the
       therapy that he and [Brehmer] thought to be appropriate under [Brehmer’s]
       condition and circumstances.

               I do not believe that plaintiff is entitled to a new trial. I do believe that the
       verdict may have in fact employed improper procedures and in fact demonstrate a
       mistake of law or fact based upon the evidence that was presented and the jury
       verdict form that was agreed upon that went with the jury to the jury room for
       deliberation. I thought that the jury verdict—and would not disturb the jury
       verdict as to a finding of $150,000. They made a determination based upon on
       [sic] what they heard. And with the exception of the reduction, which I believe
       does in fact result in a problem that needs the Court’s attention, and it is supported
       by the evidence as I [sic] was heard during trial. [Brehmer] followed his treating
       physician’s orders, jury awarded 150,000 and subtracted 50,000 based upon
       mitigation of damages. I don’t believe that [Brehmer] didn’t do what he needed
       to do, and I, therefore, order an additur of the amount deducted, awarding plaintiff
       $150,000.

At a subsequent hearing, the trial court clarified that it did not mean to grant an additur, it meant
to grant JNOV. Auto Owners now appeals.

                                          II. ANALYSIS

       Auto Owners contends that the trial court improperly granted Brehmer’s motion for
JNOV because a question of fact existed regarding whether Brehmer mitigated his damages. We
agree.

        This Court reviews de novo a trial court’s decision on a motion for JNOV. Genna v
Jackson, 286 Mich App 413, 417; 781 NW2d 124 (2009). We view the evidence and inferences
arising from the evidence in the light most favorable to the nonmoving party to determine
whether the moving party was entitled to judgment as a matter of law. Id. The trial court should
only grant a motion for JNOV “when there is insufficient evidence presented to create a triable
issue for the jury.” In contrast, “[w]hen reasonable jurors could honestly reach different
conclusions regarding the evidence, the jury verdict must stand.” Id. JNOV is only appropriate
when the evidence “fails to establish a claim as a matter of law[.]” Barrett v Kirtland
Community College, 245 Mich App 306, 311; 628 NW2d 63 (2001).

        The doctrine of mitigation of damages provides that a party must minimize the harm that
arises from another party’s wrongdoing. Morris v Clawson Tank Co, 459 Mich 256, 263; 587

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NW2d 253 (1998). When a person has been injured, “it is incumbent upon [that person] to use
such means as are reasonable under the circumstances to avoid or minimize the damages.” Id.
(quotation marks and citation omitted). An injured party’s duty to exercise reasonable care to
minimize damages includes the obligation to obtain proper medical or surgical treatment.
Klanseck v Anderson Sales & Serv, Inc, 426 Mich 78, 91; 393 NW2d 356 (1986). The defendant
has the burden to prove that a plaintiff failed to make a reasonable effort to mitigate his or her
damages. Landin v Healthsource Saginaw, Inc, 305 Mich App 519, 539; 854 NW2d 152 (2014).
“The question whether the plaintiff’s efforts to mitigate damages were reasonable under the
circumstances is one for the trier of fact.” Id.

        There are two flaws with the trial court’s ruling in this case. First, the trial court
improperly expanded the elements of mitigation to include an element that does not exist: that
the plaintiff disobeyed his or her doctor’s orders. This Court is unable to find support for such
an element. The doctrine of mitigation of damages does not ask whether a specific plaintiff
obeyed or disobeyed his or her doctor’s orders; it asks whether a person used reasonable means
to minimize his or her damages. See Morris, 459 Mich at 263; Landin, 305 Mich App at 539.
Whether a plaintiff complied with his or her doctor’s orders is certainly a factor concerning the
plaintiff’s reasonableness. See Klanseck, 426 Mich at 91. But it is only one factor, and the jury
must consider the totality of the circumstances. See Morris, 459 Mich at 273. To the extent that
the trial court determined that Auto Owners failed as a matter of law to establish that Brehmer
failed to mitigate his damages, we conclude that it erred.

       Second, the trial court usurped the jury’s role to determine what was reasonable under the
circumstances. In essence, the trial court in this case acted as an impermissible “thirteenth juror”
when it substituted its determination of the weight of the evidence for the jury’s determination.
Michigan disapproves of allowing a trial court judge to sit as a thirteenth juror. See People v
Lemmon, 456 Mich 625, 638-640; 576 NW2d 129 (1998). The trial court’s ruling is replete with
statements of belief that are based on its own assessments of the weight of the evidence. This is
not the proper standard under which to analyze a motion for JNOV. The question is whether
reasonable jurors could honestly reach different conclusions. Genna, 286 Mich App at 417.

         Our review of the record indicates that there were at least two reasons why reasonable
jurors could have reached different conclusions regarding whether Brehmer mitigated his
damages. The jury could have found that Brehmer’s decision not to have additional surgery was
unreasonable. It is undisputed that Dr. Diment supported Brehmer’s decision not to have a
second surgery because of the possible adverse consequences. However, a variety of doctors
testified that surgery was likely to improve Brehmer’s condition. That these doctors did not treat
Brehmer went to the weight of the evidence. This conflicting evidence created at least a triable
issue of fact regarding whether Brehmer’s refusal of further surgery was reasonable.

       The jury also could have found that Brehmer failed to reasonably perform his physical
therapy. Dr. Diment testified that he believed that Brehmer was doing at-home physical therapy.
But Brehmer testified that he only exercised 10 to 15 minutes a day or when his shoulder “seized
up[.]” Deline indicated that there were reasons to believe that Brehmer was not properly
complying with at-home therapy, and Dr. Chodoroff referred to Brehmer’s home therapy setup
as “pretty lame.” Dr. Chodoroff testified that Brehmer’s outcome indicated that he was not


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successfully rehabilitating himself. This evidence created at least a triable issue of fact regarding
whether Brehmer took reasonable steps to address his condition through physical therapy.

        For these reasons, we conclude that the trial court erred when it set aside the jury’s
verdict regarding whether Brehmer mitigated his damages. We do not reach the remainder of
Auto Owners’s issues because our conclusion renders resolution of those issues unnecessary.

        We reverse the trial court’s grant of Brehmer’s motion for JNOV and remand for the trial
court to reinstate the jury verdict. We do not retain jurisdiction. As the prevailing party, Auto
Owners may tax costs. MCR 7.219(A).

                                                              /s/ Mark T. Boonstra
                                                              /s/ David H. Sawyer
                                                              /s/ Peter D. O’Connell




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