Auto negligence; Third-party action under the No-Fault Act (MCL 500.3101et seq.); MCL 500.3135(1); “Serious impairment of body function”; MCL 500.3135(5); McCormick v. Carrier; Exclusion of evidence plaintiff attended independent medical exams (IMEs) conducted by doctors retained by a defendant but neither defendant called them to testify; Relevance; MRE 401 & 402; Principle that a party should not be bound by the rejected opinions of experts hired to help evaluate the case; Kissel v. Nelson Packing Co.; Distinction between the adverse-presumption jury instruction & suggesting to the jury an inference should be made based on that party’s interpretation of the evidence; Ward v. Consolidated Rail Corp.; Barringer v. Arnold; Reetz v. Kinsman Marine Transit Co.; Troyanowski v. Kent City; Kubisz v. Cadillac Gage Textron, Inc.

While plaintiff was correct that he should not be prohibited from arguing that defendants’ failure to call certain witnesses (doctors who conducted IMEs) “could give rise to an inference that” they were adverse to defendants’ case, the court held that his mere attendance at the IMEs was irrelevant to the McCormick factors. The inference he sought to present to the jury was impermissible. Thus, the trial court did not abuse its discretion in excluding the evidence that he attended the IMEs conducted by doctors retained by defendant-Olds. Plaintiff unsuccessfully sought to admit into evidence that he attended the two IMEs but neither defendant called the doctors to testify. The court held that the trial court did not abuse its discretion in ruling that whether plaintiff attended two IMEs “that were not substantively introduced into evidence was irrelevant to” the McCormick factors. There was no connection between his mere attendance at medical exams that would make the existence of any of the McCormick “prongs more or less probable absent the examinations being substantively introduced in some manner or form, and plaintiff was clear before the trial court that he had no intention to either call the examining physicians to testify or otherwise seek introduction of their reports into evidence.” While defendants relied on case law on the adverse-presumption jury instruction, the court noted that there is a difference between the instruction “and a party’s ability to merely suggest to the jury that an inference should be made on the basis of that party’s interpretation of the evidence.” Plaintiff was correct that in general, a party is “permitted to comment on another party’s failure to produce certain evidence[.]” However, he sought to make his attendance at the IMEs more relevant by also introducing the fact that the doctors who conducted them were retained by Olds. “This is not a permissible practice.” The court noted he argued that the value of the evidence stemmed “directly from the fact that the medical examiners were originally retained by defendant, which is itself evidence that would have been inadmissible.” The court concluded that the fact he attended two IMEs “had little to no bearing on the question of whether plaintiff sustained a serious impairment of body function.” Affirmed.