In their opinions

“To now raise, as a last ditch argument, unsubstantiated and generalized notions of racial animosity into an otherwise unremarkable trial is both improper and unwarranted, and hopefully will not be presented to this Court again.”

– Michigan Court of Appeals Judge Christopher M. Murray, concurring in the unpublished per curiam decision of McMillan v. Davis.

John McMillan fell down the basement stairs of property he rented from Dwayne L. Davis. At the resulting trial, just about everything except the medical bills was an issue.

There was a dispute about the origin and extent of McMillan’s shoulder problems. The evidence suggested a prior shoulder injury unrelated to the fall.

McMillan’s claimed wage loss was thrown into question when he testified about his hourly rate and hours worked. He fell in May 2006 but did not file a 2006 tax return because he had no income. A medical leave request to his employer indicated he was able to work.

A hospital record from before the fall indicated that McMillan wanted to relocate to Tennessee. Davis testified that McMillan told him the same thing. McMillan denied making the statement and said he left the state because he couldn’t find work after his accident.

McMillan testified that his shoulder hurt him constantly, especially during the winter and that he had difficulty sleeping on his shoulder because it ached.

The jury listened to all of this and came back with a verdict that equaled McMillan’s medical bills. No pain and suffering. No lost wages.

No way, said McMillan, who moved for JNOV or a new trial on the theory that if there were medical bills, there must have been pain and suffering to go along with them. The verdict is inconsistent, he said.

Not so, said the Court of Appeals. In the lead opinion, Judge Patrick M. Meter, citing Kelly v Builders Square, Inc., 465 Mich. 29 (2001), explained that

the jury may have concluded that [McMillan’s] “subjective experience[ ]” was insufficient “to prove pain and suffering,” … or may have found that his testimony on the issue lacked credibility.

Well, what about those lost wages? That’s also a matter of credibility, said Meter.

As with the prior assertion of error … the jury could have discredited plaintiff’s testimony on the issue of wage loss and concluded that, in light of countervailing evidence, he had not adequately established an evidentiary basis for such an award.

Something was going on the jury room, McMillan insisted.

McMillan provided two affidavits from one of his trial-court attorneys. From Murray’s concurring opinion:

The first affidavit indicates that the affiant and defense counsel spoke to three members of the jury and, in response to a question about why non-economic damages were not awarded to the plaintiff, the three jurors stated something to the effect that they did not believe any party or any of the witnesses. Based on this, the affiant concluded that “the jurors were clearly biased against both parties and all witnesses in this case and showed definite animus.”

That affidavit was followed by an affidavit from co-counsel for plaintiff, who simply stated that, to the best of his recollection, all of the impaneled jurors were white, and that all but one of the witnesses and parties were black.

So let’s get to the punchline, said Murray.

[W]hat is presented is an argument that because a black plaintiff did not get all the damages he requested at trial from an all-white jury, the jury must have acted with racial animus.

However, an argument premised upon post-verdict conversations with several jurors about their thought processes is precluded by the law … while this specific and unsubstantiated argument can only detract from the public’s respect for our bedrock system of trial by jury … .

There is no argument made, and therefore no evidence presented, to suggest that the jurors acted in any manner other than how they were instructed to decide this case by the trial court. And, as noted by the majority opinion, the law squarely rejects the other arguments plaintiff has made in an attempt to overturn the verdict.

To now raise, as a last ditch argument, unsubstantiated and generalized notions of racial animosity into an otherwise unremarkable trial is both improper and unwarranted, and hopefully will not be presented to this Court again.

Judge Jane M. Beckering concurred in the result. The case, she said, was a “hotly contested” credibility contest from start to finish.

While the jury ultimately found that defendant’s negligence proximately caused plaintiff damages, there was much dispute over both the origin and extent of plaintiff’s shoulder problems … .

Paying due deference to the jury’s role in assessing credibility and weighing the evidence with respect to plaintiff’s pain and suffering associated with the fall at issue … I cannot find that the trial court abused its discretion in denying a new trial under the particular facts of this case.

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