                          STATE OF MICHIGAN

                           COURT OF APPEALS



PATRICK OTWAY and CHAMAIE OTWAY,                                   UNPUBLISHED
                                                                   May 11, 2017
               Plaintiffs-Appellants,

v                                                                  No. 329542
                                                                   Saginaw Circuit Court
JEHAD D. JAFARI, M.D.,                                             LC No. 13-019880-NH

               Defendant-Appellee.


Before: BORRELLO, P.J., and WILDER and SWARTZLE, JJ.

PER CURIAM.

         Plaintiffs appeal as of right from a judgment of no cause of action entered following a
jury trial in this medical malpractice action. We affirm.

       Plaintiffs filed a medical malpractice action against defendant, plaintiff Patrick Otway’s
primary care physician, after Mr. Otway suffered permanent conductive hearing loss in his left
ear caused by a condition known as cholesteatoma. Plaintiffs alleged that defendant was
negligent by failing to refer Mr. Otway to an ear, nose, and throat doctor (ENT) and by failing to
timely diagnose the cholesteatoma.

        In his affirmative defenses, defendant raised the doctrine of comparative negligence and
asserted that Mr. Otway was comparatively negligent because, as the result of a drunk-driving
accident in 1997, he suffered a skull fracture, permanent sensorineural hearing loss in his right
ear, and mild hearing loss in his left ear. The jury determined, however, that defendant was not
professionally negligent and, accordingly, the jury never reached the issue of comparative
negligence.

        Plaintiffs argue that the trial court abused its discretion by allowing defendant to admit
evidence that Mr. Otway was intoxicated at the time of the 1997 accident. We review a trial
court’s decision to admit or exclude evidence for an abuse of discretion. Chapin v A & L Parts,
Inc, 274 Mich App 122, 126; 732 NW2d 578 (2007). “An abuse of discretion occurs when the
decision results in an outcome falling outside the principled range of outcomes.” Radeljak v
DaimlerChrysler Corp, 475 Mich 598, 603; 719 NW2d 40 (2006).

       MCL 600.6304 provides that:



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       (1) In an action based on tort or another legal theory seeking damages for personal
       injury, property damage, or wrongful death involving fault of more than 1 person,
       including third-party defendants and nonparties, the court, unless otherwise
       agreed by all parties to the action, shall instruct the jury to answer special
       interrogatories or, if there is no jury, shall make findings indicating both of the
       following:

               (a) The total amount of each plaintiff's damages.

              (b) The percentage of the total fault of all persons that contributed to the
       death or injury, including each plaintiff and each person released from liability
       under section 2925d, regardless of whether the person was or could have been
       named as a party to the action.

Plaintiffs do not dispute that evidence that the 1997 accident caused an injury to Mr. Otway’s
right ear and that evidence that Mr. Otway generally was at fault for that accident was admissible
at trial for purposes of computing comparative negligence under MCL 600.6304(1)(b). Rather,
plaintiffs argued below, and argue again on appeal, that evidence that Mr. Otway was driving
intoxicated at the time of that accident was not relevant to the current proceedings and was more
prejudicial than probative. MRE 401-403.

        The trial court precluded defendant from presenting evidence or argument, directly or
indirectly, that Mr. Otway had ever been arrested, charged, or convicted of an alcohol-related
offense. The trial court concluded, however, that Mr. Otway’s fault for the 1997 motor vehicle
accident by reason of driving while intoxicated was relevant to the jury’s consideration of “the
nature of the conduct” of each person at fault under MCL 600.6304(2), and was not more
prejudicial than probative. We agree with the trial court’s conclusions.

         First, we agree that evidence of Mr. Otway’s drunk driving was clearly relevant to the
instant dispute under MRE 401 and therefore conclude that the trial court did not abuse its
discretion by refusing to exclude that evidence under MRE 402. Had the jury found that
defendant was negligent in his treatment of Mr. Otway’s left ear, the jury would be required to
determine what proportion of the injury to Mr. Otway’s left ear was the result of Mr. Otway’s
own negligence in order to determine comparative fault. Even if plaintiffs are to be believed that
Mr. Otway suffered no damage to his left ear in the 1997 accident, plaintiffs alleged that the
impact of Mr. Otway’s injury to his left ear was made more severe because of the damage to his
right ear. To the extent that Mr. Otway’s injury to his right ear made more drastic his injury to
his left ear, the jury would need to consider Mr. Otway’s comparative negligence in causing the
injury to his right ear when apportioning damages for any negligence on the part of defendant.

        MCL 600.6304(2) plainly provides that, in determining the fault attributed to each party,
the jury “shall consider . . . the nature of the conduct of each person.” Therefore, had the jury
found defendant negligent, the jury would have been required to consider evidence of Mr.
Otway’s drunk driving as the nature of the conduct comprising his comparative fault.
Accordingly, evidence of defendant’s drunk driving was clearly relevant to this dispute under
MRE 401 and the trial court did not err by refusing to exclude this evidence under MRE 402.


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        Next, we conclude that the trial court did not abuse its discretion in refusing to exclude
the evidence in its entirety as unfairly prejudicial under MRE 403. We first note that, after
properly admitting the evidence as relevant to Mr. Otway’s comparative fault, the trial court
thoughtfully considered the prejudice to plaintiffs resulting from the nature of that evidence. The
trial court cautioned counsel that “[h]aving ruled that the matters in question are admissible is
not to say that defense counsel has a proverbial blank check to paint Patrick Otway as a bad
person because he drove while intoxicated nearly two decades ago.” The trial court then granted
plaintiffs’ motion to preclude evidence of Mr. Otway’s drunk driving “to the extent that
defendant shall not refer, directly or indirectly, to plaintiff having been arrested or convicted of
an alcohol-related offense.”

        We believe the trial court appropriately weighed the necessity of the jury’s consideration
of evidence regarding Mr. Otway’s comparative fault against any unfair prejudice to plaintiffs
resulting from this evidence. We therefore conclude that the trial court did not err by denying
plaintiffs’ motion to preclude this evidence as unfairly prejudicial under MRE 403.

        To the extent, as plaintiffs claim, that the limited evidence of defendant’s drunk driving
introduced at trial was so prejudicial as to inflame the passions of the jury against plaintiffs, a
jury verdict may be vacated “where it clearly and manifestly appears that the verdict is the result
of prejudice, caprice, passion, partiality, sympathy, or kindred reasons rather than a result of the
consideration of the evidence and actual existing conditions.” Stowers v Wolodzko, 386 Mich
119, 140–41; 191 NW2d 355 (1971) (internal quotation marks, citation, and emphasis omitted).
Such is not the case here.

       First, plaintiffs have provided this Court with no factual evidence that the jury’s decision
was based upon any improper bias or prejudice. Additionally, the trial court clearly and
extensively instructed the jury on how they should consider the evidence of Mr. Otway’s drunk
driving, stating:

              You have heard evidence that Patrick Otway was involved in a motor
       vehicle accident in 1997, which occurred after he had been consuming alcohol.

              Patrick Otway is not on trial here for that accident. The only reason this
       evidence is presented is so that you can consider [defendant’s] position, called an
       affirmative defense, which is that Mr. Otway was comparatively negligent
       because he caused that accident, which may have contributed to his hearing loss.

               If you believe this evidence, you must be very careful only to consider it
       for certain purposes. You may only think about whether this evidence tends to
       show that Patrick Otway was at fault in the 1997 accident, and whether his
       injuries suffered in 1997 caused or contributed to the injuries he alleges, in this
       case.

              You must not consider this evidence for any other purpose. For example,
       you must not decide that it shows that the plaintiff is a bad person or that he
       should not prevail in this case because he engaged in bad conduct in 1997. All


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       the parties in this case are entitled to a verdict based solely upon the evidence, and
       the instructions given by this Court.

Juries are presumed to follow their instructions, Zaremba Equip, Inc v Harco Nat Ins Co, 302
Mich App 7, 25; 837 NW2d 686 (2013), and there is no evidence in the record that would lead us
to doubt the validity of that presumption in this case. Because the jury did not find defendant
negligent in his treatment of Mr. Otway, the jury did not reach the issue of comparative fault.
Accordingly, because there is no indication in the record to the contrary, we must conclude that
the jury did not even consider evidence of Mr. Otway’s drunk driving.

        Finally, as the trial court properly noted in denying plaintiffs’ motion to set aside the
jury’s verdict, “[t]he evidence at trial was such that the jury could have found for either side,
depending upon its evaluation of the evidence.” Experts could not agree on when Mr. Otway’s
cholesteatoma first appeared, whether the symptoms Mr. Otway explained to defendant were
indicative of a cholesteatoma, or whether the ordinary primary physician should be expected to
diagnose such a condition or act in any manner different than defendant did in this case. Those
questions of fact were properly left to the jury’s determination, see Allard v State Farm Ins Co,
271 Mich App 394, 406-407; 722 NW2d 268 (2006), and we are unable to conclude that its
verdict was against the great weight of the evidence.

       Affirmed.



                                                             /s/ Stephen L. Borrello
                                                             /s/ Kurtis T. Wilder
                                                             /s/ Brock A. Swartzle




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