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Blogs | November 2, 2021
5 minute read

COA Opinion: Disclosure of high-low agreements to the jury is not required if integrity of the judicial process is nonetheless preserved

On December 1, 2009, the Michigan Court of Appeals published an opinion in Freed v. Salas, No. 283317, affirming the trial court's various evidentiary and jury-instruction rulings in a jury trial of the defendants' liability in negligence for the vehicle accident resulting in the death of an ambulance patient. Chief among the issues presented was the question of whether a high-low agreement entered into between the plaintiff and one of the defendants was properly kept from the jury. The court found that it was. It also concluded (1) that dismissal of a defendant driver did not bar suit against the driver's employer, the owner of the vehicle; (2) that the evidence and expert opinions presented to support the pain-and-suffering award of $9 million was admissible and sufficient to deny JNOV; (3) that the jury instructions did not inaccurately paraphrase the applicable statute in a material manner; (4) that a sudden emergency doctrine instruction was not applicable when the only issue was whether the defendant was speeding, rather than whether he had failed to stop within the assured clear distance; (5) the appellant failed to present impassioned statements by the plaintiff's counsel or analogous case law demonstrating the verdict was excessive; and (6) the court properly refused to take judicial notice of a disputable issue of fact concerning the speed limit. Judge Talbot dissented, contending that (1) the accident reconstruction experts improperly opined on the ultimate issue of negligence and apportionment of fault; (2) the forensic pathologist exceeded the scope of his expertise in opining on the defendant's fear of dying or sense of impending doom; and (3) failure to give the sudden-emergency-doctrine instruction presumes the defendant was speeding, an issue for the jury to decide, not the judge. The dissent can be found here.

On November 2, 2004, Bretton Freed, a quadriplegic, was being transported by an ambulance from hospital treatment for pneumonia and/or urosepsis back to his full-time care facility when the ambulance ran a stop sign and was struck by a garbage truck. Freed died four hours later from his injuries. The personal representative of the estate sued the ambulance service, Healthlink, the ambulance driver, Kimberly Salas, the driver of the garbage truck, William Whitty, and his employer, Waste Management, which owned the garbage truck. Salas was dismissed without prejudice and Whitty was dismissed with prejudice. Before trial, plaintiff disclosed he had a high-low agreement with Healthlink, where Healthlink would pay plaintiff no less than $900,000 but no more than $1 million, but Healthlink would remain in the trial to argue the nature and extent of damages. Plaintiff moved that the existence of the agreement not be revealed to the jury. Healthlink concurred and Waste Management never offered its position on the matter. The jury ultimately found Healthlink and Waste Management negligent, assigned fault at 55 percent and 45 percent respectively, and awarded a total of $14 million to the plaintiff, resulting in an award of about $6.5 million against Waste Management. Waste Management appealed.

Waste Management first contended that dismissal of the driver with prejudice should have resulted in dismissal of Waste Management under res judicata principles. The Court of Appeals held that Waste Management had waived this issue because it never argued this was the case at the time the dismissal with prejudice was agreed upon or before the jury returned its verdict. Nevertheless, the Court addressed the merits of this question of law because the necessary facts were in the record. The Court concluded that, while it may not be vicariously liable in agency after dismissal of the agent driver, it was still liable under the Owner's Liability Act, MCL ' 257.401, because agency principles do not apply there.

Waste Management next argued that the high-low agreement should have been disclosed to the jury. Again, the Court of Appeals found Waste Management waived this issue by not objecting to the motion not to reveal it, but nonetheless addressed the merits of the argument, given this was an issue of law and the relevant facts were in the record. The Court first rejected the argument that the high-low agreement was a Mary Carter agreement because (a) it did not create a perverse incentive for the Healthlink to help the plaintiffs case, and (b) it was not kept secret from the parties and the court. The Court then concluded that while the agreement was similar to the ones required to be disclosed to the jury in Hashem v. Les Standford Oldsmobile, 266 Mich. App. 61, 80, 697 N.W.2d 558 (2005), that case did not generally mandate disclosure of such agreements and disclosure was not required in this case. Again, the agreement did not change Healthlink's initial position, which was always to focus as much blame on Waste Management to obtain a favorable apportionment. It also left Healthlink a significant financial interest ($100,000) in keeping the plaintiff's damages as low as possible.

Waste Management also contended there was no evidence of conscious pain and suffering and that Dr. Spitz's opinion that Freed "could have" had those experiences should have been excluded. The Court again disagreed, holding that the fact witnesses who interacted with and observed Freed in those four hours before death, in combination with the expert testimony of Dr. Spitz, were sufficient to support such a finding.

Waste Management also contended that the trial court should have instructed the jury on the "sudden emergency doctrine," which applies when a traffic rule is violated as a result of an emergency, such that the emergency is said to cause the accident, not the negligence of the driver in violating the traffic rule. Here, the Court found that the garbage truck's excessive speed, which was alleged to cause the accident, was not precipitated by the emergency but rather preceded the ambulance running the stop sign. The doctrine did not apply.

Finally, the Court rejected Waste Management's argument that it was prejudiced when the accident-reconstruction expert's testified in a way that fixed fault and identified who was negligent. The Court pointed out, first of all, that MRE 704 permits expert-opinion testimony on the ultimate issue at trial, here, negligence. Secondly, the Court ruled there was no prejudice, because the only statement as to negligence—that excessive speeding is negligent and that Whitty was negligent because he was speeding—is "so undeniably true that the jury did not need the expert's testimony to reach that conclusion."