Michigan’sHelter-SkelterLandscapeOfNo_FaultPTSD CasesBeliesScience Professor Brad Charles

PROFESSORBRADCHARLES124

Abstract

A lyric from the early 1900s goes like this:

Perhaps you’re broke and paralyzed Perhaps your memory goes But it’s only just called shell shock For you’ve nothing there that shows.125

Most Michigan cases, even in the past decade, agree with this centuryold belief that post-traumatic stress disorder (PTSD) is not real because there’s “nothing there that shows.” These outdated beliefs bely current, corroborated, and credible scientific studies about PTSD. In fact, one gets the sense while reading these cases that those who have PTSD from auto accidents need an exorcism rather than competent medical care.

For a plaintiff with PTSD from a severe auto accident to recover noneconomic damages, they must prove that they suffered “serious impairment of body function.”126 It’s defined as “an objectively manifested impairment of an important body function that affects the plaintiff’s general ability to lead a normal life.”127

124 Professor Charles teaches all things writing at WMU-Cooley: Research & Writing,Advocacy, andScholarly Writing.Healsoteachesinternationallawclasses and co-coaches the Jessup International Law Moot Court team. Before joining Cooley, ProfessorCharles dabbledinlaborlaw andcondominium law. Thenhewas honoredtoserveasa judicialattorneyfor the21stCircuit CourtinIsabella County, Michigan. Since then, he’s maintained a steady pro bono and low-fee practice. He haswritten severalarticles,authoredanonlinecourseforlearninglegal research, and written a bookonthe U.S.Supreme Court’s reasoning techniques.

125BEN SHEPARD, A WAR OF NERVES: SOLDIERS AND PSYCHIATRISTS IN THE TWENTIETHCENTURY 74(HarvardUniversityPress2003). 126 MICH. COMP. LAWS § 500.3135(1)(2019). 127 Id.

From the first no-fault PTSD case in 1979128 to present day, almost every panel hearing these cases has held that a PTSD impairment cannot be “objectively manifested” and does not affect an “important body function.” Yet, paradoxically, a couple cases say that PTSD does satisfy these elements with the same evidence. This “arbitrary discretion”129 has led to an inconsistent and contradictory no-fault landscape.

The disarray among cases, at least until the turn of the century, had been justifiable because science had not yet progressed to competent understanding of the disorder. “It was not long ago in medicine that PTSD was debatable, obtuse, and poorly understood,”130 according to one Michigan Court of Appeals judge. But now, she says, “It is real. It is an injury.” This lone judge’s view is supported by even PTSD’s past harshest critics in the medical community who now recognize that the disorder exists and that it does physically affect several physical body functions.131

This article does not posit that more PTSD-from-car-accident sufferers should recover. To the contrary, the third element of a nofault claim – that one’s general ability to lead their normal life has been affected – should continue to act to filter out malingering plaintiffs with exaggerated injuries.

TABLEOFCONTENTS

PTSDDefined...................................................................................25 LivingwithmildPTSD.....................................................................27 LivingwithchronicPTSD................................................................28 ThePTSDresponsetotraumahasa longhistory.............................29

1800s:Railway Spine ................................................................................... 30 1900s:Shell Shock ....................................................................................... 31 2000s:ScienceandPsychiatry ...................................................................... 34

128 Lucev.Gerow,280N.W.2d592(Mich.Ct.App.1979). 129 McCormick v. Carrier,795N.W.2d517,534(Mich.2010) (citation omitted). 130 Overweg v. Thomas, 308785, 2013 WL 1920735, at *6 (Mich. Ct. App. May 9, 2013)(J.Markeywritingmajorityopinion). 131 Rebecca Izzo, In Need of Correction: How the Army Board for Correction of Military Records Is Failing Veterans with PTSD, 123:5 YALE L. J. 1587, 1594 (March2014).

About 7% of all adults have experienced PTSD at some point in their lives.132 And close to 4% currently suffer with it.133 Motor-vehicle accidents are the leading cause of PTSD in the general population.134 Andatleasttwodozenstudieshaveproventhatbetween25%and33% of survivors from serious car-accident victims have some level of PTSD.135

PTSD is not a reaction to tragedy like bereavement, chronic illness, business losses, or marital conflict.136 In contrast, according to the American Psychiatric Association (APA), PTSD can come from only the severest experiences: “Exposure to actual or threatened death, seriousinjury,orsexualviolence. . . . ”137 Beforea psychoanalystcan diagnosis a person with this high PTSD threshold, a person must present with “clinically significant distress or impairment in social, occupational, or other important areas of functioning” for longer than one month.138 The distress or functional impairment must come from thesefourcategories:139

● Intrusivesymptoms:“Recurrent,involuntary,and intrusive distressing memories of the trauma,”

“recurrent distressing dreams,” “flashbacks,” or

“prolongedpsychologicaldistress.”140 ● Avoidance: “Persistent avoidance of stimuli associatedwiththetraumaticevent.”141

132 National Institute of Health, Post-Traumatic Stress Disorder (PTSD), NAT’L INST. OF MENTAL HEALTH, https://www.nimh.nih.gov/health/statistics/posttraumatic-stress-disorder-ptsd.shtml (Nov.2017). 133 Id. 134American Psychological Association, Motor Vehicle Accidents Are Leading Cause of Posttraumatic Stress Disorder, According to New Book, AM. PSYCHOL. SOC’Y, https://www.apa.org/news/press/releases/2003/12/accidents-ptsd (Dec. 7, 2003). 135 J. Gayle Beck & Scott F. Coffey, Assessment and Treatment of PTSD After a Motor Vehicle Collision: Empirical Findings and Clinical Observations, 38(6) PROF. PSYCHOL.,RES.,PRAC. 629,630(2007).

136 AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 236 (3d ed. 1980); AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICALMANUALOFMENTALDISORDERS 424(4th ed.1994). 137 AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 271–72(5thed. 2013). 138 Id. 139 Id. 140 Id. 141 Id.

experiencing recurrent and intrusive recollections and nightmares relatedtotheevent.”148

But, more modernly, we can characterize the prevalence of PTSD in three periods: 1800s, Railway Spine; 1900s, Shell Shock; and 2000s, ScienceandPsychiatry.

1800s:RailwaySpine

A condition doctors started calling “railway spine” became prevalent in the 1860s as steam-powered trains became a regular transportation mode.149 Humans had never traveled at such high speeds, for so long, andinsuchlarge, dense, andpowerful machinery. This inevitably led to serious accidents. In fact, Charles Dickens, the English writer of A Christmas Carol fame, mayhaveexperiencedmildPTSDfromriding the railroad. In 1865, four days after being involved in a railroad accident, he described it in a letter, ending with a surprising reaction, eventohimselfitseems:150

I don’twanttobeexaminedattheinquestandI don’t wanttowriteaboutit.I coulddonogoodeitherway, andI couldonlyseemtospeakaboutittomyself.. .. I am keepingveryquiethere.I havea – I don’tknow whattocallit– constitutional(Isuppose)presenceof mind, and was not in the least fluttered at the time. I instantly remembered that I had the MS of a number with me and clambered back into the carriage for it. But in writing these scanty words of recollection I feel the shake and I am obliged to stop. Ever faithfully, CharlesDickens.151

But most railroad-accident victims, the ones who actually needed treatment, suffered from chronic PTSD that “involved a physical shock, caused by an intense stimulus, resulting in a functional disturbance of the nerves,” according to one doctor who studied

148 PTSD and Shell Shock, HISTORY.COM, http://www.history.com/topics/history-ofptsd-and-shell-shock(Aug.21,2018).

149ANDREAS KILLEN, BERLIN ELECTROPOLIS: SHOCK, NERVES, AND GERMAN MODERNITY 86(2006).

150 WOLFGANG SCHIVELBUSCH, THE RAILWAY JOURNEY: THE INDUSTRIALIZATION OFTIME ANDSPACE IN THENINETEENTHCENTURY 138(2014).

151 Id.

railwayspineatthetime.152 FirmlybelievingthatPTSDhad a physical basis, the doctor’s study “left open the question ofwhether this shock couldalsobepsychologicalinnature.”153

As made poignant by today’s Michigan Court of Appeals’ holdings that PTSD is a ghost syndrome, even in the 1800s doctors knew that PTSD—or any of its cousin diagnoses—had origins in physical body functions. The prescient hypothesis wouldn’t be scientifically proven foranother150yearswiththeadventofMRI,PET,andMEG154 scans.

As one would expect, some railway-spine cases were litigated. In one from the Oregon Supreme Court in 1903, it’s clear from science and law at the time that PTSD, then called “railway spine” or “traumatic neurosis,”155 was recoverable under the same rule from Michigan’s current no-fault jurisprudence: a mental injury caused by a physical injury or a physical injury that causes a mental injury are both recoverable.156

And as proof that human nature is the same from generation to generation, “railway spine” took on the sarcastic moniker of “Litigation Spine” assomelitigants appeared tomiraculously recover uponreceivinga juryaward.157 Today’splaintiffs’poolshavethesame minority of malingerers, but the mechanisms of truth-finding—the jury, the judge, and the third “general ability” element of “serious impairment”—canfilteroutthefakers.

RailwayspinewastheprecursortoshellshockinWorldWarI.

1900s:ShellShock

The20thcenturysawtwoglobalwarsandcountlessregionalones,so it inevitably led to increased understanding of PTSD, but only after

152 KILLEN, supra note25(emphasis added). 153 Id. 154 magnetic resonance imaging (MRI); positron emission tomography (PET); magnetoencephalography(MEG) 155 Maynard v. Oregon R.Co., 72 P. 590,592(Or.1903). 156 Lucev.Gerow,280N.W.2d592,593(Mich.Ct. App.1979). 157 Duggins v. Intl. Motor Transit Co., 280 P. 50, 52 (Wash. 1929); see also Demensteinv.Richardson,1893WL3396,at*2(Pa.Com.Pl. 1893)(“Inour dayit is the ‘Spine,’ for injuries to which millions have been recovered, and which, from itsgreat pre-eminenceinthisline, is knowntosuitors as ‘TheRailwaySpine.’”)

The American Psychiatric Association (APA) picks up the PTSD history just after World War II ended. What we now call PTSD was called“grossstressreaction”intheveryfirstDiagnosticandStatistical ManualofMentalDisorders(DSM)in1952.167 Thismanualtodaysets the industry standards for psychiatric diagnoses. In the first DSM, PTSD was considered a personality disorder: “Under conditions of great or unusual stress, a normal personality may utilize established patternsofreactiontodealwithoverwhelmingfear.”168 Then,in1968, in DSM-2, the authors recategorized it as “transient situational disturbances.”169 The disorder was related to an “acute reaction to overwhelmingenvironmentalstress.”170

As a dour side note, and perhaps it’s mere coincidence, but the first DSM manual and each update to it coincides with a war just ending (WorldWarII,Korea,Vietnam,DesertStorm,Afghanistan/Iraq).

PTSDreallycameintoitsownin1980throughDSM-3whenitfinally getsthenameitisknownbytoday:post-traumaticstressdisorder.This updated version of the diagnosis was based on years of researching “people who survived severely traumatic events, including war veterans, Holocaust survivors and sexual trauma victims.”171 “The essential feature is the development of characteristic symptoms following a psychologically traumatic event that is generally outside the range of usual human experience.”172 “The stressor producing the syndrome would evoke significant symptoms of distress in most people . . . . ”173 “Frequently,” the APA manual reads, “there is a concomitant physical component to the trauma which may even involvedirectdamagetothecentralnervoussystem. . . . ”174

But not just combat veterans have it. Survivors of motor-vehicle accidents experience it, too. The last three DSM manuals have

167 AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 40(1sted.1952). 168 Id. 169 AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 48(2ded.1968). 170 Id. 171 HISTORY.COM, supra, note 24. 172 AM. PSYCHIATRICASS’N, supra, note 12,at236. 173 Id. 174 Id.

included “severe motor vehicle accidents” 175 as a common cause of PTSD.Ina 1999study,researcherscomparedvictimsofmotor-vehicle accidentstovictimsofnon-motor-vehicleaccidentsandfoundthatone month after experiencing a motor-vehicle accident, 34.4% of victims experienced PTSD.176 And even after a year, 14% still experienced PTSD.177 Comparatively, among the non-motor-vehicle-accident victims, only 2.4% and 2.9% experienced PTSD after one month and 12months,respectively.178

TheUnitedStates’combatengagementintheMiddleEastsparkedan onslaughtofPTSDstudiesinthe1990s.In1994(andthenagainwith anupdatein2000),theAPAreleasedDSM-4andre-categorizedPTSD as an anxiety disorder caused by severe stress: “The essential feature of Posttraumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual orthreateneddeathorseriousinjury. . . . ”179

2000s:ScienceandPsychiatry

And, finally, the current manual, DSM-5 published in 2013, moved PTSD from the category of anxiety disorders and into a new chapter for “trauma- and stress-related disorders.”180 So it’s not a ghost syndrome, not a personality disorder as thought in the 1950s, -60s, or -70s, and it’s not even an anxiety disorder. Instead, DSM-5 reflects myriad scientific studies from the past 20 years that dramatically increased our understanding of what physically happens in the body whensomeoneexperiencesPTSD.181

175 See Id. (DSM-3)(“caraccidents withseriousphysicalinjury”); AM. PSYCHIATRIC ASS’N (DSM-4), supra note 12, at 424 (“severe automobile accidents”); AM. PSYCHIATRIC ASS’N (DSM-5), supra note 13, at 274 (“severe motor vehicle accidents”). 176 Robert J. Ursano, et al., Acute and Chronic Posttraumatic Stress Disorder in Motor Vehicle Accident Victims, 156:4AM. J. PSYCHIATRY 589 (Apr.1999). 177 Id. at591. 178 Id. 179 AM. PSYCHIATRICASS’N(DSM-4), supra note12, at424. 180 James Phillips, PTSD in DSM-5: Understanding the Changes, 32:9 PSYCHIATRIC TIMES (Sept.25, 2015). 181 Kuhn & Hickling, supra note 23; Sherin & Nemeroff, infra note 121; Hupbach, infra note 125;Smerin,Chen,andLi, infra note 141.

Before the 2000s, it wouldn’t have been surprising to see Michigan court decisions follow the same trajectory of PTSD understanding as we saw in the military: denial for several decades before finally accepting and understanding it. But, as described in this article’s next section,theyarelargelystuckinthedenialperiod.Becausethescience is so sound and corroborated, there is simply no reason that attorneys can’tproperlypreparea PTSDcaseandwhycourtscan’ttrustexperts’ opinions that PTSD is an injury that actually affects important body functions.

Noneconomic-DamageThreshold:SeriousImpairmentofBody Function

The no-fault compromise is that anyone injured in an auto accident turns to their own insurance company to pay medical bills (economic damages).182 In turn, the injured auto passenger gives up the right to sue the accident-causing driver in tort—unless the injury crosses the “seriousimpairment”threshold.

Before the no-fault automobile insurance system was instituted in 1973, an auto-accident victim could sue the driver who caused the injuriesintort.183 Thatsystemwasabolishedandreplacedwiththenofaultschemeforthreeprincipalreasons:First,thepure-tortsystemled toovercompensationforminorinjuries.184 Second,theat-faultsystem encouragedexcessivelitigation.185 And,finally,thatsystemseemedto discriminate against uneducated and financially challenged victims because they would settle as soon as possible to get any sum of money.186

The Michigan No Fault Act, which became effective in 1973, established a highthreshold forrecovering noneconomic damages for auto-accidentinjuries:“seriousimpairmentofbodyfunction.”187 After

182 MICH. COMP. LAWS § 500.3105(2019). 183 1972Mich.Pub.Acts294.Itbecame effectiveMarch 30,1973. 184 Robert E. Logeman, Michigan No-Fault Automobile Cases § 1.1 (3d ed. 2002); see also Cassidy v. McGovern,330N.W.2d22,28(Mich.1982)(overturnedonother grounds). 185 See Cassidy, 330 N.W.2d at 28 (“[T]here were the problems incident to the excessive litigationofmotorvehicleaccident cases.”) 186 Logeman, supra note 60; see also Cassidy,330N.W.2dat28. 187 MICH. COMP. LAWS § 500.3105 (2019). The popular names it goes by are NoFaultInsuranceActor, more simply, No-Fault Act.

“PTSD”;thattermwouldbecoineda yearlaterwhentheDSM-3was published.

Basedontheno-faultstatute,a bitoflegislativehistory,andprecedent, the Luce court held that “mental injuries are considered just as real as physicalinjuries.”193 Thecourtthenestablishedthata mentalinjuryis indeedaninjurytoa “bodyfunction”:“Wethereforehold,asa matter oflaw,thattheLegislaturedidnotintendtoexcludethepossibilityof recoveringformentalinjuriesresultinginphysicalsymptomsbyusing theterm‘bodyfunction’in[theNo-FaultAct].”194

A year after Luce was decided, in 1980, the Michigan Supreme Court in effect codified this rule from Luce by adding a jury instruction specificallyformentalinjuries:“Theoperationofthemindandofthe nervoussystemarebodyfunctions.Mentaloremotional injurywhich is caused by physical injury or mental or emotional injury not caused by physical injury but which results in physical symptoms may be a serious impairment of a body function.”195 This instruction is still giventojuriestoday.

The 1979 Luce opinion is remarkable because the court applied common sense in a nascent period of brain science in finding that mental injuries are recoverable under the No Fault Act. What’s more, Ms.Luceasa bystanderwasabletorecoverfora mentalinjury.Given thegeneraltrendintortlaw,withthegoaltoweedoutinsincereclaims, ofallowingrecoveryforonlymentalinjuriescausedbydirectphysical impact, to mental injuries only being associated with a physical consequence, to finally allowing bystanders to recover, the Michigan Court of Appeals incredibly jumped right to allowing a bystander, someoneindirectlyinjured,tocollectfora mentalinjury.196

Butsince Luce’squantumleapforwardbasedona boldunderstanding of new science, that precedent has largely been given only lip service even though its enduring principle has not been overruled. And in somecases,thisprecedentiscompletelyignored.

193 Id. at593. 194 Id. 195 MICH. MODEL CIV. JURY INSTRUCTIONS 36.02 (2019). This jury instruction was createdinNovember1980. 196 See infra 24–25.

Cassidy period:1982– 1986.

WehavetheMichiganSupremeCourtcaseof Cassidy tothankfor the phrase“objectivelymanifested,”thefirstserious-impairmentelement, whenitwrotethisin1982:“[T]hephrase‘seriousimpairmentofbody function’ . . . demonstrates the legislative intent to predicate recovery fornoneconomiclossonobjectivelymanifestedinjuries.”197 Applying thisnewphrase,theCourtheldthatMr.Cassidy,a potatofarmerwho broketwobonesinanautoaccident, obviouslysatisfiedtheelement.

Butthehallmarkofthe Cassidy period is thataninjurymustbesubject to “objective medical measurements.”198 This standard came from Williams v. Payne, 199 a 1984casethatinterpreted Cassidy.

The Cassidy–Williams duo set up Garris v. Vanderlaan,

200 the first PTSD case to come along in the Cassidy period. After an automobile accident caused Ms. Garris’s back injury, her psychiatrist diagnosed her with “post-traumatic neurosis, which is characterized by depression, anxiety, confusion, isolation and may be associated with sometypeofbodilyinjuryormentalinjury.”201

The Michigan Court of Appeals, in a published opinion, said that Ms. Garris’s “alleged symptoms are purely subjective”202 even though a psychiatristhadgivenherthisdiagnosisandhadsworntoitunderoath.

This binding precedent, that PTSD is not objectively manifested, was ignoredina 2010unpublishedopinionthatheldthatPTSDwasindeed a physical injury and was objectively manifested based on evidence similartothatin Garris. 203

DiFranco period:1986– 1996.

197 Cassidy v. McGovern,330N.W.2d22,30(Mich.1982). 198 Id. at 23, as interpreted by Williams v. Payne, 346 N.W.2d 564, 568 (Mich. Ct. App.1984)(emphasisadded). 199 346N.W.2d564(Mich. Ct.App.1984). 200 381N.W.2d412(Mich. Ct.App.1985). 201 Id. at414. 202 Id. 203 See Baker v. Pent, 290778, 2010 WL 2541060, at *6 (Mich. Ct. App. June 24, 2010).

TherearenoPTSDcasesinthe DiFranco period,butit’simportantto this history because it sets up a significant overhaul to the No Fault Act. Essentially, the Michigan Supreme Court, by deciding DiFranco v. Pickard, 204 allowed more injuries to pass the “objectively manifested” element when it lowered the standard from “medically measured” to “medically identifiable.”205 In support, the Court said that the threshold is “a significant, but not extraordinarily high, obstacle.”206

After DiFranco and its more liberal standard were decided, the automotive insurance industry complained that lawsuits increased by 100%.207 In response, industry lobbyists attempted to galvanize supportfortwodifferentreferendumelectionsin1992and1994where theytriedtomaketheno-faulttortthreshold“morerestrictive.”208

AftertheMichiganvoterssoundlydefeatedbothreferenda(about60% against in each election),209 the insurance industry prevailed on the legislaturetopassPublicAct222of1995.

Amended-statuteperiod:1996– 2004.

Public Act 222 of 1995 codified the three elements of “serious impairment” that we have today. Their genesis was in Cassidy, they were dismantled by DiFranco, but then Public Act 222 brought them back for good. One significant change is that the state made it clear that the impairment, not the injury, must be objectively manifested. “[W]hile an injury is the actual damage or wound, an impairment generally relates to the effect of that damage. Accordingly, when considering an ‘impairment,’ the focus ‘is not on the injuries themselves, but how the injuries affected a particular body function.’”210 This makes sense because economic damages cover the actual injury while noneconomic damages cover the effect of the injury.

204 DiFrancov.Pickard,398 N.W.2d896,901,918 (Mich.1986). 205 Id. 206 Id. at911. 207 House Legislative Analysis Section, No Fault Tort Threshold, House Bill 4341, FirstAnalysis 2 (April 26,1995). 208 GeorgeT.Sinas &Hon.RobertM.Ransom, The 1995 No-Fault Tort Threshold: A Statutory Hybrid, 76 MICH. B. J. 76 (January1997). 209 Id. 210 McCormick v. Carrier,795 N.W.2d 517,527–28(Mich.2010)(citationomitted).

cases, leading courts to sometimes say they are objectively manifested216 andothertimessayingtheyarenot.217

Despite numerous doctors agreeing that the plaintiff labored under chronic PTSD, it held that it was not objectively manifested because themedicalevidence proved“alackofphysicalproblems.”218

Thecourtcametothisconclusionafterciting Luce fortheproposition that PTSD is cognizable only if “a physical injury causing the psychiatric injury, a physical basis, or physical symptoms arising out ofthepsychiatricinjury.”219 But thisholdingmaybeattributablemore topoorattorneypracticethananythingelsebecause,afterholdingthat his PTSD wasn’t objectively manifested, the court added that the plaintiff’scomplaintdidn’tevenmentionPTSD.220

Two years later, an attorney in Wisniewski v. Demyan, perhaps learningfrom Rammeloo, arguedthata plaintiff’sbackandspinalcord injuriescausedPTSD;therefore,thePTSD,sotheargumentwent,was objectively manifested because it was caused by a physical injury.221 But the Michigan Court of Appeals roundly rejected that argument because the plaintiff didn’t provide evidence of PTSD. Even after Rammeloo, theattorneycouldn’tordidn’tthinktoprovidepsychiatric proof of the plaintiff’s PTSD diagnosis.222 Here’s the sum total of the court’sreasoning:

ThisCourtheldinordertobeobjectivelymanifested, animpairment must be(1) medically identifiable; (2) eitheraninjuryora condition;and(3)havea physical basis. Here, plaintiff presented no evidence of any PTSD. Therefore, her injury is not objectively

216 See Baker v. Pent, 290778, 2010 WL 2541060, at *6 (Mich. Ct. App. June 24, 2010). 217 Garris v. Vanderlaan, 381 N.W.2d 412, 414 (Mich. Ct. App. 1985); see also Overweg v. Thomas, 308785, 2013 WL 1920735, at *6 (Mich. Ct. App. May 9, 2013). 218 Rammeloo,2003WL22801814,at*13. 219 Id. 220 Id. 221 Wisniewskiv.Demyan, 253053,2005 WL 1812633,at*1(Mich.Ct.App.Aug. 2,2005). 222 Id.

manifested, and the trial court's grant of defendants' motionforsummarydispositionwasnotinerror.223

In this Kreiner period, there’s a real sense that attorneys throw in a PTSD diagnosis as additional gloss to their more substantive arguments, but these attorney-pioneers of PTSD litigation were findingtheirvoiceinhowtopleadandargueit.Theinstructionmanual for PTSD itself and definitely for how the law should deal with it is stillbeingwritten.

Itseemsthatthisargumentin Wisniewski washalf-hearted.Generally, plaintiffs’ and appellants’ attorneys certainly know that for a PTSD argumenttopass,they’llneedmorethanmereself-servingstatements from lay witnesses, especially in light of Rammeloo where there was substantial psychiatric proof of PTSD. Given the United States Supreme Court’s Daubert decision and its Michigan progeny, which require high expert standards to exclude unreliable evidence, these PTSD cases where the attorneys called no expert witnesses are perplexing, and may even be cause in themselves for a malpractice claim.224

InthethirdandfinalPTSDcaseinthe Kreiner period, Baker v. Pent,

225 a woman was rear-ended by a large commercial vehicle. After that, two psychiatrists diagnosed her with PTSD; her symptoms were “anxiety and sleeping problems.”226 After repeating the rule that an objectively manifested impairment “must be a medically identifiable injury or condition that has a physical basis,”227 the court held that PTSDwasindeedobjectivelymanifested.

Baker is noteworthy because it’s the only case in the entire no-fault compendiumofMichigancasesthathasfoundthata plaintiff’sPTSD isobjectivelymanifested.Whilenotexplicitlyexplainingwhy,itheld Ms. Baker suffered “objectively manifested mental or emotional

223 Id. (citation omittedandemphasisadded). 224 See infra 27–29; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); Peoplev.Unger,749N.W.2d272,283(Mich.Ct.App.2008). 225 Baker v. Pent,290778,2010WL2541060,at*6(Mich.Ct. App.June24,2010). 226 Id. at*1. 227 Id. at*6.

injuries.”228 But we may deduce that this was based on the fact that twodifferentdoctorshaddiagnosedherwithPTSD.229

The court implicitly reasoned that it had found some physical connection between the PTSD, her injury, and her “anxiety” and “sleeping problems.”230 In support of its holding that PTSD was an objectively manifested impairment of a body function, the court reiteratedthisruledatingallthewaybackto Luce from1979:

Additionally,“[m]entaloremotionalinjurywhich[is] caused by physical injury or mental or emotional injurynotcausedbyphysicalinjurybutwhichresults inphysicalsymptomsmaybea seriousimpairmentof bodyfunction.”231

But if Ms. Baker’s hopes were high, they were soon dashed. After finding that her PTSD satisfied the first two serious-impairment elements (objectively manifested and important body function), the courtheldthattheydidnotsatisfythethirdelementof“generalability toleada normallife.”232

Baker follows science and as such highlights the inconsistencies in Michigan jurisprudence. The Baker court had to ignore Garris’s holding that PTSD is “purely subjective”233 to follow Luce. But both Ms. Garris and Ms. Baker had psychiatrists’ testimony stating very similar symptoms. That wasn’t enough in 1985, but it was enough in 2010. In yet another twist to come three years later in 2013, similar evidencewouldcontrariwisenotbeenoughtoprovetheelement.

McCormick period:2010– present.

228 Id. 229 Id. at **1–2. Baker’s primary care physician, Dr. Bruce Barbour, and her psychiatrist, Dr.ManzarRajput, both diagnosedherwithPTSD. 230 Id. at*1. 231 Baker v. Pent,290778, 2010WL2541060,at*6(Mich.Ct. App.June24,2010). For this rule, the court cited Guerrero v. Smith, 761 N.W.2d 723, 735 (Mich. Ct. App. 2008), which in turn cited Luce v. Gerow, 280 N.W.2d 592, 593 (Mich. Ct. App.1979), thecasethatopenedthedoorfor auto-accident-causedmentalinjuries. 232 Baker, 2010 WL 2541060,at**7–9. 233 Garrisv.Vanderlaan, 381N.W.2d412,414(Mich.Ct. App.1985).

Later in 2010, just months after Baker was decided, McCormick v. Carrier234 ushered in yet another reconstruction of the three seriousimpairmentelements,thistimebecominglessrestrictivethan Kreiner. Thiscaseestablishedthecurrentiterationof“seriousimpairment.”

With McCormick, in essence, the Michigan Supreme Court nearly completely overruled Kreiner. As for the “objectively manifested” element, the Court established this new rule: “‘Objectively manifested’ means an impairment that is evidenced by actual symptoms or conditions that someone other than the injured person would observe or perceive as impairing a body function. In other words, an ‘objectively manifested’ impairment is commonly understoodasoneobservableorperceivablefromactualsymptomsor conditions.”235 Sotheytossedthe medical-testingrulefrom Kreiner in place of objective observations or perceptions. Yes, medical testing wouldsatisfythisnewrule,butsowouldevidencelessthanthat.236

One would think from reading this new definition that plaintiffs with PTSDfromautoaccidents wouldhavenotrouble atall satisfying this rule because psychiatrists can perceive the impairment that manifests asPTSD.

But,infact,thelawtakesa puzzlingturnintheonlycasetoaddressa no-faultPTSDclaiminthe McCormick period: Overweg v. Thomas.

237 For the first time, a Michigan court said, in the context of a seriousimpairmentcase,thatPTSDisanobjectivelymanifestedbrain injury. But it paradoxically said that it is not an impairment to a “particular body function”:238 “While there is no dispute,” the court reasoned, “that plaintiff has PTSD, there is no evidence that plaintiff’s injury –PTSD– affectsa particularbodyfunction.”239

Thepartof Overweg thatdoesnotmakesenseisthatthecourtsaidthat PTSD is a brain injury. But it said that the brain injury did not impair

234 McCormick v. Carrier,795N.W.2d517,534–35(Mich.2010). 235 Id. at527 (emphasisadded). 236 Id. at527–28. 237 Overweg v. Thomas, 308785, 2013 WL 1920735, at *1 (Mich. Ct. App. May 9, 2013). Overweg was decided by Judge Christopher Murray, Deborah Servitto (concurringinresultonly),and Jane Markey(dissenting). 238 Id. at*3. 239 Id.

a “particular body function.”240 Over just four paragraphs, the court punctuated seven times that PTSD does not affect a “particular body function” even though it is a brain injury.241 Yet it agreed with the psychiatristthatPTSDisa “physicalinjury.”242

So, according to the Michigan Court of Appeals, PTSD is a brain injury that affects no brain function. Such a holding makes reason stare,andisprobablywhyoneofthetwo-judgemajorityconcurredin theresultonlyandnotthereasoning.243

A psychiatrist’s diagnosis, which was good enough for the Baker court, was not good enough for the Overweg court even though they largely testified to the same physical symptoms: “sleep deprivation, flashbacksandnightmares,heightenedanxiety,lossofappetite,being easilystartled,anddecreasedactivity.”244

What’s even stranger about this inconsistency is that Baker was decided under the “medical testing” standard established in Cassidy/Williams and continued through the Kreiner era. This standard is much higher than McCormick’s requirement that the impairment beobservable orperceivable byothers.So,ironically, the higherstandardwassatisfiedin Baker, yetthelowerstandardwasnot satisfiedin Overweg withsimilarevidence.

Confusingly, the Overweg court required the plaintiff’s psychiatrist –nota neurosurgeonorbiophysicist– o findan“objectivelymanifested impairment of plaintiff's cognitive or physical function.”245 The psychiatrist did testify “that PTSD can cause trauma to the brain and that plaintiff's brain suffered an actual physical injury from the PTSD.”246

Overweg also ignores Garris, a 1985 binding case. The Garris court held that PTSD does affect an important body function: the mind. Again, the Overweg court ignores this precedent and says that PTSD

240 Id. at**3–4. 241 Id. 242 Id. at*3. 243 Judge Servittoconcurredintheresultonlyanddid notwrite aconcurring opinion. 244 Overweg v. Thomas, 308785, 2013 WL 1920735, at *3 (Mich. Ct. App. May 9, 2013). 245 Id. 246 Id.

doesnotaffecta bodyfunction.The Overweg panelshouldhaveeither (1)appliedtheprecedent-setting Garris ruleor(2)explainedwhatpart ofthebraindoesnotinvolvea bodyfunction.

PTSD’simpairmentof body functions isobjectivelymanifested.

Of all of the inconsistencies among the PTSD cases, even after accountingfordifferencesinproofs,themostglaringisontheissueof bodyfunction.TheMichiganCourtofAppealsinconsistentlyruleson whether PTSD affects a body function, a concept that bridges both elementsof“objectivelymanifestedimpairment”and“ofanimportant body function.” As described above, Garris (a 1985 published case) and Baker (a2010unpublishedcase)bothsaythatPTSDdoesaffecta bodyfunction,i.e.,themindandnervoussystem.Yet Overweg (a2013 unpublished case) says that PTSD does not affect a body function. It eitherdoesordoesnotin1985,2010,and2013.

There are four reasons why Michigan courts deciding no-fault cases shouldholdthatPTSDdoesindeedimpaira bodyfunction.

(1)ScienceunequivocallyprovesthatPTSDaffectsseveralparticular bodyfunctions.

Most of the courts described above failed to understand that PTSD is reallythedysfunctionofseveralparticularbodysystemsorfunctions. The three primary functions affected are the endocrine system, the limbic system, and the nervous system.247 The dysfunction of these systems in PTSD sufferers has been proven in countless medical studies.248

i. The endocrine system

The endocrine system is a physical body function impaired in PTSD sufferers. When the endocrine system is not functioning properly, the

247 JonathanE.Sherin &Charles B. Nemeroff, Post-Traumatic Stress Disorder: The Neurobiological Impact of Psychological Trauma, 13:3 DIALOGUES IN CLINICAL NEUROSCIENCE 263,263–71(2011). 248 See generally id. See also American Academy of Neurology, PTSD May Be Physical and not Only Psychological: Brain’s Emotional Control Center Shown to Be Physically Larger, SCIENCEDAILY, 11 July 2017, www.sciencedaily.com/releases/2017/07/170711171704.htm.

stress hormone cortisol is unnaturally regulated.249 This causes the body to overreact in “response to stress”250 and leads to impaired memorycapability,251 depression,252 disruptedsleep,253 mildcognitive impairment,254 andtheonsetofneurologicaldiseaseslikeAlzheimer’s Disease. 255 An impaired endocrine system also retards brain cell regeneration.256

Theendocrinesystemproduceshormones—chemicalmessengersthat tell body functions to stop and start.257 The three main glands that comprise the endocrine system are the hypothalamus, pituitary, and adrenalglands.

In a normal system, as a person encounters stress, which is where demandisperceivedtoexceedone’sresources,258 thehypothalamusin the brain secretes a hormone into the bloodstream that talks with the pituitary glandthatinturntalkswiththeadrenalglandsthatsitonthe kidneys.259 This is when a person will first notice a stress response becausetheadrenalglandsreleaseglucoseandcortisol.260

AccordingtotheMayoClinic,

Cortisol,theprimarystresshormone,increasessugars (glucose) in the bloodstream, enhances your brain’s use of glucose and increases the availability of

249 Sherin& Nemeroff, supra note123. 250 Id. at265. 251 AlmutHupbach& JoelleM.Dorskind, Stress Selectively Affects the Reactivated Components of a Declarative Memory, 128:5BEHAV. NEUROSCIENCE614,618–19(2014). 252 Dong-dong Qinetal., Prolonged Secretion of Cortisol As a Possible Mechanism Underlying Stress and Depressive Behaviour, SCI. REP. (2016), doi: 10.1038/srep30187. 253 FrancescaPistollato et al., Associations Between Sleep, Cortisol Regulation, and Diet: Possible Implications for the Risk of Alzheimer Disease, 7 ADVANCES NUTRITION 679,680(2016),doi:10.3945/an.115.011775. 254 Id. 255 Id. 256 Id. 257 Id. 258 KatarinaDedovicetal., The Brain and the Stress Axis: The Neural Correlates of Cortisol Regulation in Response to Stress, 47:3 NEUROIMAGE 864 (2009), doi: 10.1016/j.neuroimage.2009.05.074. 259 Sherin& Nemeroff, supra note123,at265. 260 Dedovic, supra note134.

substances that repair tissues. Cortisol also curbs functionsthatwouldbenonessentialordetrimentalin a fight-or-flight situation. . . . This complex natural alarm system also communicates with the brain regionsthatcontrolmood,motivationandfear.261

Whenthisjolttothesystemofglucoseandcortisolcausesthoselevels to get high enough, the hypothalamus gets the message and turns off itshormoneproduction—ina normalsystem.262

ButwhensomeonehasPTSD,thehypothalamus’sbrakingmechanism malfunctions; it no longer tells the adrenal glands to stop producing elevated levels of cortisol and glucose.263 The brakes are out, and the carkeepsonspeedingatbreak-neckspeeds.

In terms of physical brain structures, extended increased levels of glucose and cortisol are not healthy: “Sustained glucocorticoid exposure has adverse effects on hippocampal neurons, including reduction in dendritic branching, loss of dendritic spines, and impairment of neurogenesis.”264 In lay terms, brain cells shrink and sometimesdie.

ii. The limbic system

The endocrine system works in concert with another physical body function,thelimbicsystem.Thelimbicsystemregulatesinnatehuman behaviors like emotion,265 mating, aggression, and defense.266 In a person experiencing PTSD, a malfunctioning limbic system means

261 MayoClinic, Chronic Stress Puts Your Health at Risk, MAYOCLINIC (March19, 2019), https://www.mayoclinic.org/healthy-lifestyle/stress-management/indepth/stress/art-20046037. 262 Sherin& Nemeroff, supra note123,at265. 263 Id. 264 Id. 265 DR. C. GEORGE BOEREE, GENERAL PSYCHOLOGY: THE EMOTIONAL NERVOUS SYSTEM (2009), https://webspace.ship.edu/cgboer/limbicsystem.html (e-book). 266 KatieSokolowski& Joshua G. Corbin, Wired for Behaviors: From Development to Function of Innate Limbic System Circuitry, 5 FRONTIERS MOLECULAR NEUROSCIENCE (2012), doi:10.3389/fnmol.2012.00055.

that defensive aggression erupts when intrusive memories of the traumaticeventoccur.267

Thelimbicsystemismadeupofthreebrainglands:thehypothalamus, the hippocampus, and the amygdala.268 The hypothalamus, you’ll recallfromtheprevioussection,isalsoa partoftheendocrinesystem. There’s a reason for that: the limbic system moderates the endocrine system whereby the hippocampus and the amygdala talk to the endocrinesystemthroughthehypothalamus.269

Magnetoencephalography (MEG)270 neuroimaging proves that the amygdala and hippocampus regions in PTSD patients are malfunctioning.271 One study was able to accurately identify just through MEG brain imaging people who, according to psychotherapists,sufferedfromPTSD.272

BiophysicistMingxiongHuang,whotheUnitedStatesDepartmentof Veteran Affairs relies on for scientific understanding of PTSD, analyzed the resting brains of 25 military veterans with PTSD and compared them to a control group with healthy brains.273 Huang’s MEG neuroimaging confirmed what fMRI and PET testing had indicated, that the hippocampus and amygdala failed to properly regulatestressresponsesinpatientswithPTSD.274

In contrast, in a normal system, the amygdala instigates the stress response, jumping the hypothalamus into high gear to produce hormones that result in the adrenal glands pumping out glucose and cortisol(i.e.,theendocrinesystemdoingitsjob).

267 Stanley E. Smerin, Aiqin Chen, & He Li, Neurophysiology of Aggression in Posttraumatic Stress Disorder, J. PSYCHIATRY (2016), doi:10.4172/23785756.1000364(lastvisitedMay 13,2019). 268 Sherin& Nemeroff, supra note123, at 265–71. 269 Id. at265. 270 See Mingxiong Huang et al., Voxel-wise Resting-state MEG Source Magnitude Imaging Study Reveals Neurocircuitry Abnormality in Active-duty Service Members and Veterans with PTSD, 5NEUROIMAGE: CLINICAL 408, 411 (2014), doi: 10.1016/j.nicl.2014.08.004. 271 Id. 272 Id. 273 Id. 274 Id. at411,416.

The hippocampus does just the opposite. It slams on the brakes by telling the hypothalamus to stop producing the fear-responding hormones.Itbringsthesystembackdowntonormal.Atleastitshould.

But the amygdala suffering from PTSD hyperresponds to stressors, meaningthatthebodyoverreactstothingsthatarenotassociatedwith trauma.275 Sotheamygdalaisrocketingalongthepathwhenitshould beona Sundaystroll.276

Thephysicaltollofa too-eageramygdalaanda bashfulhippocampus? More irritable and aggressive moods277 and a broken endocrine system: “prolonged exposure to stress and high levels of glucocorticoids in laboratory animals damages the hippocampus, leading to reduction in dendritic branching, loss of dendritic spines, and impairment of neurogenesis.”278 Literal brain damage and witheringnervoustissue.279

iii. The nervous system

The endocrine and limbic systems are also connected to the nervous system.Whenthenervoussystemmalfunctions,adrenalinefloodsthe bloodstream even in peaceful situations.280 But it overreacts in body systemsaffectedbyPTSD.Sucha brokenbodyfunctionresultsinthe classic PTSD symptoms: enhanced vigilance, heightened startle reaction, increased coding of fear memories, sleep disturbance, and shorttemper.281

The sympathetic nervous system and the parasympathetic nervous system regulate the body’s balance between active and resting states.282 Thesympatheticsystemjumpsthenervoussystemintoaction

275 Sherin& Nemeroff, supra note123,at271. 276 Id. at271;See also Huangetal., supra note146. 277 Smerin, Aiqin, &Li, supra note143. 278 Sherin& Nemeroff, supra note123,at270. 279 Queensland Brain Institute, What Is Neurogenesis?, THE UNIVERSITY OF QUEENSLAND AUSTRALIA, https://qbi.uq.edu.au/brain-basics/brainphysiology/what-neurogenesis. 280 Sherin& Nemeroff, supra note123,at268. 281 Id. 282 Grant Hilary Brenner, New Study Shows Brain Change After Psychological Trauma, PSYCHOLOGYTODAY.COM (Dec. 5, 2018), https://www.psychologytoday.com/us/blog/experimentations/201812/new-studyshows-brain-change-after-psychological-trauma.

when there’s a threat, diverting system resources—adrenaline and the accompanying increased blood flow283—to fight-or-flight systems.284 Theheartbeatsfaster,ourmindbecomesmuchmorealert,andwedo whatittakestosurvive.285

Then,undernormalcircumstances,theparasympatheticsystemisthen supposed to take over and calmly bring the body down to normal, the parasympathetic state.286 But in PTSD victims, the trauma was so great, or it has occurred so frequently, that the sympathetic nervous systemistaxedtoburnout:287 “InPTSD,theactivationina basicsense appears to persist, almost like a computer glitch, and the sympathetic system gets stuck in higher gear, crudely similar to a car running at high RPMs for too long. . . . The parasympathetic nervous system is notabletoproperlycoolthingsdown.”288

Therefore, when a court is faced with competent and reliable psychiatric testimony that a plaintiff has PTSD, the one element they can confidently find satisfied is that the impairment to several particular body functions is objectively manifested because the endocrine,limbic,andnervoussystemsaremalfunctioning.

(2)Michigancourtsfindthatmemorylossaffectsa bodyfunction; PTSDmustalsobecausetheyaresobiologicallysimilar.

Just as Michigan courts hold that memory loss from auto accidents is an objectively manifested impairment of a body function, to be consistent, they should likewise find that PTSD affects a body function. Memory and fear and stress responses are both regulated by the hippocampus and amygdala.289 The courts cannot say that a defectiveamygdalacausingmemorylossaffectsa bodyfunctionwhile sayingthata defectiveamygdalacausingmis-regulatedfearandstress responses(i.e.,PTSD)isnot.

283 Id. 284 Id. 285 Id. 286 Id. 287 Id. 288 Id. 289 LarryR.Squire, The Legacy of Patient H.M. for Neuroscience, 61:1 NEURON 6–9 (2009), doi:10.1016/j.neuron.2008.12.023.

Several Michigan no-fault cases hold that memory is an important bodyfunction.290 Inonecase, Shaw, a bystanderona road,washitby a car; this caused him to fly into the air and hit his head on the pavement.291 Thiscaused,amongotherinjuries,memoryloss.292 That court said that “memory is an important body function. Memory is a body function which people use in their everyday life. Memory is essentialtoa person’sperformanceatwork.Memoryisalsoimportant in social situations such as meeting people, conversing, engaging in hobbies and recreation, and reminiscing with friends.”293 But because the parties disputed the nature and extent of the head injury causing thememoryloss,thecourtremandedthecaseforthejurytosortout.294

In a more recent memory case - Guerrero v. Smith, 295 the Michigan Court of Appeals stated that “memory is an important body function and that neuropsychological testing may suffice to show an objective manifestation of a serious impairment of that body function.”296 The court, when saying that the jury was properly instructed and understood the issues, reinforced the precedent that mental injuries witha physicalbasisandphysicalinjuriesarereallythesame.

The functioning of the hippocampus and the limbic system is mostly to blame for memory deficits; it’s also the same body function that, when broken, impedes the hyper-vigilant and hyper-startle responses from returning to normal. Similar to the neurological testing in Guerrero, “Studiesusingfunctionalneuroimaginghavefurthershown that PTSD patients have deficits in hippocampal activation during a verbaldeclarativememorytask.”297

Because scientific testing has shown that memory deficits and PTSD come from the same system, the same body function, courts should consistentlyholdthatPTSDdoesaffecta bodyfunction.

290 Shawv.Martin, 399N.W.2d450,451(Mich.Ct.App.1986). 291 Id. 292 Id. 293 Id. at453. 294 Id. at454. 295 Guerrerov.Smith, 761N.W.2d723,735(Mich.Ct. App.2008). 296 Id. 297 Sherin& Nemeroff, supra note123,at270–71.

(3)PTSDaffectsa bodyfunctionundertheGovernmentTort LiabilityAct.

In other areas of Michigan law, PTSD from an auto accident is a “bodily injury”298 that affects a body function and is objectively manifested. In Allen v. Bloomfield Hills, 299 a train conductor watched from his train as a school bus attempted unsuccessfully to maneuver arounda loweredgatethatwasblockingcross-trafficasthetrainwent througha busytown.Thebusbecamestuckonthetracksbetweenthe lowered gates, the train conductor tried to brake, but there wasn’t enoughspace,andthetraincollidedwiththebus.Whentheconductor was finally able to stop the bus more than one-half mile later, he ran back to the crash scene. To his relief, the bus was not full of school childrenashehadfeared,butthebusdriverwasseverelyinjured.The trainconductorwassubsequentlydiagnosedwithPTSD.

HesuedtheschooldistrictthatoperatedthebusundertheGovernment TortLiabilityAct(GTLA),whichrequiresplaintiffstoprovethattheir PTSD is a “bodily injury.”300 The Court of Appeals held that the driver’s PTSD from the accident was indeed a “bodily injury” and explainedthatitaffectedseveralbodyfunctions.

After reviewing positron emission tomography (PET) scan evidence from one doctor and psychiatric testimony from another, the court agreed with their conclusions that the “plaintiff presented objective medical evidence that a mental or emotional trauma can indeed result inphysicalchangestothebrain.”301

Onthisonepoint, Allen isinlinewith Overweg becausethatcourtsaid that PTSD was a physical injury, which is the same as a “bodily injury.” But Allen went further. Using doctors’ testimony and PET scans, the court linked PTSD with the functioning of the brain. And then it held that damage to the brain, which PTSD is a manifestation of, is a bodily injury because it “‘causes significant changes in brain chemistry, brain function and brain structure.The brain becomes

298 MICH. COMP. LAWS § 691.1405(2019). 299 Allenv. BloomfieldHills,760N.W.2d811,812 (Mich.Ct. App.2008). 300 Id. at812–13. 301 Id. at815.

“rewired” to overrespond to circumstances that are similar to the traumaticexperience.’”302

The doctors’ testimony was enough to show that PTSD affected “physical functions”303 because a PET scan showed “decreases in frontal and subcortical activity consistent with depression and post traumatic stress disorder” and that “the abnormalities in . . . Allen’s brainasdepictedinthe. . . PETscan are quite pronounced and clearly different in brain pattern from any of the normal controls.”304

The contradiction between a vehicle accident under the GTLA saying thatPTSDaffectsbrainfunctioningwhile Overweg (andmanyothers) sayingthatitdoesnotisespeciallyoddbecausetwoofthethreepanel members that decided Allen in 2008 decided Overweg in 2013. Honorable Jane Markey wrote the Allen opinion, saying that PTSD was a “bodily injury” that affected brain functioning, and she wrote thedissentin Overweg sayingthatPTSDisnodifferentfromanyother injury and definitely affects brain functioning.305 Confusingly, Honorable Deborah Servitto concurred in the Allen decision but then “concurred only in the result” of the Overweg decision. Perhaps she realizedthatthereasoningof Allen and Overweg wereatodds,andso she couldn’t agree to the latter case’s reasoning that contradicted Allen’sreasoning.

(4)OtherstatesfindthatPTSDaffectsa bodyfunction.

Moving outside of Michigan shows that at least one of the five other pure no-fault states agrees that PTSD does affect particular body functions.306 In New York, which applies a no-fault threshold similar to Michigan’s, courts trust a PTSD diagnosis if it’s based on

302 Id. at815–16(emphasisadded). 303 Id. at815. 304 Id. at815–16(emphasisinoriginal). 305 Judge Markey, who wrote the Allen opinion, allegedly espouses Republican principles; Judge Servitto (concurring) was appointed by Jennifer Granholm, so she’s likely a Democrat;andJudgeHoekstra(dissenting)isa Republican(retired in 2018). 306 Florida, New Jersey, New York, and Pennsylvania have no-fault thresholds for noneconomic damages that are similar to Michigan’s “serious impairment of an important body function.” MICH. COMP. LAWS § 500.3135(1)(2019).

“competent medical evidence.”307 And they’ve agreed that PTSD affects a body function going all the way back to 2001.308 Here’s the law for New York: “[A] plaintiff must present competent medical evidence through ‘an expert’s qualitative assessment of a plaintiff’s condition. . ., providedthattheevaluation hasanobjective basisand compares the plaintiff’s limitations to the normal function, purpose anduseoftheaffectedbodyorgan,member, function or system.’”309

And, as a side note, even a licensed clinical social worker is qualified torendera PTSDdiagnosisinNewYork.310

Eventhoughthisnextcaseisoutsideofa no-faultscheme,itstillgoes to the fact that other states have progressed to the point of acknowledging that PTSD does indeed affect body functions. Since 2002,PTSDhasbeena compensableworker’scompensationclaimin Virginia.311 The Virginia Supreme Court established that PTSD is a physical disorder that affects the “neurobiological systems,” as opposed to just a mental illness.312 To support this holding, the court analogized toprecedent thata causticplant’sreaction withthebody’s immune system is just like how “traumatic stressors caused reactions in[Plaintiff’s]neurobiologicalsystems.”313

The court also agreed with an expert’s evidence that “[u]nder conditions of acute and severe psychological trauma, the organism mobilizes multiple neurobiological systems for the purpose of survival.”314 However,theseneurobiologicalsurvivalresponses,when chronically overused, “may have long-term negative consequences thatarerelatedtomanyofthechronicsymptomsofPTSD.”315

307 Vergine v. Phillips, 91 N.Y.S.3d 272, 274 (N.Y. App. Div. 3d Dept. 2018) (citationsomitted). 308 See Fillettev.Lundberg, 55 N.Y.S.3d 783,784(N.Y. App.Div.3dDept.2017); Hill v. Cash, 985 N.Y.S.2d 345, 347 (N.Y. App. Div. 4th Dept. 2014); Krivit v. Pitula, 912 N.Y.S.2d 789, 791 (N.Y. App. Div. 3d Dept. 2010); Chapman v. Capoccia,725 N.Y.S.2d 430, 431(N.Y. App.Div.3dDept. 2001). 309 Vergine,91N.Y.S.3dat274(citationsomitted andemphasisadded). 310 Id. at274–275. 311 Fairfax County Fire and Rescue Dept. v. Mottram, 559 S.E.2d 698, 702 (Va. 2002). 312 Id. at702. 313 Id. 314 Id. (emphasisadded). 315 Id.

AftertheCourtheldthatPTSDwasa compensabledisease,itthenheld that PTSD is not a common or ordinary disease but was related to the employee’sjob.Therefore,hecouldrecover.

PTSDImpairs Important BodyFunctions

Whereas the “objectively manifested” definition has changed every few years, the definition for the second serious-impairment element, “important body function,” has remained largely consistent from its genesis in Cassidy, through the DiFranco period, even after the codification in 1996, and, strikingly, even through the Kreiner period whentheothertwoelementsreceiveddrasticoverhauls.316

Thedefinitionevenremainedthesameafterthe McCormick decision, though one would never be able to tell that by reading the confusing Overweg opinion.317

The genesis for this element, just like “objectively manifested,” is Cassidy wheretheMichiganSupremeCourtwrotethis:“[I]mpairment of body function is better understood as referring toimportant body functions.”318 In that case, the Court found that walking was an importantbodyfunctiontoMr.Cassidy,a potatofarmer.

OfMichigan’ssevenno-faultPTSDcases,onlytwodirectlyaddressed the“importantbodyfunction”element: Garris and Baker.

The Garris court found that the “mind represents an important body function.”319 The court connected the mind to a body function that is affectedbywhatwetodaycallPTSD:“post-traumaticneurosis,which is characterized by depression, anxiety, confusion, isolation and may beassociatedwithsometypeofbodilyinjuryormentalinjury.”320

In the 2010 PTSD case Baker, the court also held that PTSD affects the “mind and nervous systems” and that they “are important body functions.”321 Eventhough Baker isunpublished,itcitedthepublished

316 See McCormickv.Carrier,795N.W.2d517,528–529(Mich. 2010). 317 Id. 318 Cassidy v. McGovern,330N.W.2d22,30(Mich.1982). 319 Garrisv.Vanderlaan, 381N.W.2d412,414(Mich.Ct. App.1985). 320 Id. at414. 321 Baker v. Pent,290778, 2010WL2541060, at *6 (Mich.Ct. App.June24,2010).

decisionof Guerrero v. Smith322 for thepropositionthatthe“operation of the mind and of the nervous system are body functions.”323 Importantly,thecasecitedthestandardjuryinstructionsforemotional injurieswhichbasicallycodified Luce.

With these binding cases as precedent, incredulously, the Overweg court said that PTSD does not affect the mind or nervous system becausePTSDdoesnotaffectany“particularbodyfunction.”324

Yet Baker’s and Garris’s opinions hold just the opposite, that PTSD doesaffectthemindandnervoussystems.Today,weknowthatatleast the endocrine, limbic, and nervous systems are involved in what we call“themind.”Thesethreesystemsareattheepicenterofthehuman experience. The hormones and nervous responses that these body functions regulate affect every single waking moment. They are just as important and even more important than most functions that Michigancourtshavedeclared “importantbodyfunctions”:

● Themindisanimportantbodyfunction.325 ● Thenervoussystemisanimportantbodyfunction.326 ● Memoryisanimportantbodyfunction.327 ● Walkingisanimportantbodyfunction.328 ● The operation of the neck and back are important body functions.329 ● Heartfunctionisanimportantbodyfunction.330 ● Theribs’functionofprotectingbreathingisanimportantbody function.331 ● Useofanarmisanimportantbodyfunction.332

322 Guerrerov.Smith, 761N.W.2d723(Mich.Ct. App.2008). 323 Id. at736. 324 Overweg v. Thomas, 308785, 2013 WL 1920735, at *3 (Mich. Ct. App. May 9, 2013). 325 Garrisv.Vanderlaan, 381N.W.2d412,414(Mich.Ct. App.1985). 326 Guerrerov.Smith, 761N.W.2d723,735 (Mich.Ct. App.2008). 327 Shawv.Martin, 399N.W.2d450, 453(Mich.Ct.App.1986). 328 Cassidy v. McGovern, 330 N.W.2d 22, 30 (Mich. 1982); see also Lahousse v. Hess,336N.W.2d219(Mich.Ct. App.1983). 329 Harris v. Lemicex, 393 N.W.2d 559 (Mich. Ct. App. 1986); Netter v. Bowman, 725N.W.2d353,363 (Mich. Ct.App.2006). 330 Kanaziz v. Rounds, 395N.W.2d278(Mich.Ct. App.1986). 331 Rangev.Gorosh, 364N.W.2d686(Mich. Ct.App.1984). 332 Kroftv.Kines,397N.W.2d822, 824(Mich.Ct. App.1986), vacated, 402N.W.2d 481(Mich. 1987).

● Visionisanimportantbodyfunction.333 ● Senseoftouchisanimportantbodyfunction.334

TheTimeforPTSDAcceptanceHasCome

Michiganjurisprudencetrendstowardrecoveringformentalinjuries.

Unsurprisingly, courts in general have viewed mental injuries with skepticism because they are so easy to fake in an effort to defraud a defendant and their insurance company.335 But over time, courts have eventuallyallowedrecoveryformentalinjuries,generallygoingfrom requiring an accompanying physical injury to accepting just a mental injury as enough.336 Because PTSD is a physical injury—not just a pure emotional injury—courts should allow no-fault PTSD sufferers torecoveraswell.

For many decades, courts required plaintiffs seeking recovery for emotionaldistresstoprovebotha physicalinjuryandthata “physical impact”causedit337 becausetheinjury“maybeeasilyfeignedwithout detection.”338 But the physical-impact requirement was jettisoned in 1970whentheMichiganSupremeCourtdecided Daley v. LaCroix,

339 whereitheldthata physicalimpactwasnolongerrequiredtorecover for emotional damages because the Court was “cognizant of the changed circumstances relating to the factual and scientific informationavailable.”340

Not long after dropping the physical-impact requirement, Michigan courts then did away with even the physical-injury requirement for

333 Moorev.Cregeur, 702N.W.2d648,650 (Mich.Ct. App.2005). 334 Kosackv.Moore,375 N.W.2d 742,745 (Mich.Ct. App.1985). 335 Nelson v.Crawford, 81N.W. 335, 335(Mich. 1899), overruled in part Daley v. LaCroix,179N.W.2d390(Mich.1970). 336 Nelson,81N.W.at335(“[A] plaintiff cannotrecoverforinjuriesoccasionedby fright, where there is no immediate personal injury.”); Daley, 179 N.W.2d 390 (eliminating the physical-impact requirement for negligent infliction of emotional distress); Haverbush v. Powelson, 551 N.W.2d 206, 209 (Mich. Ct. App. 1996) (requiring only “severe emotional distress” and no physical consequence for intentionalinflictionofemotionaldistress). 337 Daley,179 N.W.2d at 392. 338 Nelson,81N.W.at335. 339 179N.W.2d390,394(Mich. 1970). 340 Id. at395.

intentional infliction of emotional distress while keeping it for negligentinflictionofemotionaldistress.341

Courts are nowsotrusting ofplaintiffs’ proofs and experts that foran IIEDclaimtosucceed,a plaintiffisn’trequired“toshowthatheorshe has actually sought treatment for the requisite emotional distress . . .

.”342

The next chapter in the evolution of recovering for emotional distress saw recovery even for bystanders: A “plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injuryofa thirdpersononlyiftheplaintiffisanimmediatememberof the victim’s family.”343 While bystanders must currently prove a physical injury from the mental distress, that requirement is likely to beshedatsomepointasitfollowsthetrendformentalinjuries.

The stark irony for those suffering PTSD from auto accidents is that Luce v. Gerow, 344 the 1979opiniondiscussedabove,settheprecedent that auto-accident bystanders could recover for a mental injury if it either was caused by or caused a physical injury. So in 1979 the Michigan Court of Appeals was in line with tort law in general for allowingrecoveryformentalinjuries.Butthat1979wasa briefbright moment of consistency within Michigan jurisprudence, soon to be eclipsedby40yearsofinconsistentandcontradictoryopinions.

The final evolution of tort law’s mental-injury recovery in some jurisdictions, but not yet in Michigan,345 allows a plaintiff to recover foremotionaldistressevenfromthemerefearofcontractinga disease. UnderUnitedStatesSupremeCourtprecedent,a plaintiffwhosuffers a physical injury may recover for associated emotional distress under theFederalEmployers’LiabilityAct.346 In Norfolk & Western Railway

341 Henry v. Dow Chem. Co., 701 N.W.2d 684, 692 (Mich. 2005) (requiring “physical manifestations of that distress” for negligent infliction of emotional distress); see also Hesse v. Ashland Oil, Inc., 642 N.W.2d 330, 337 (Mich. 2002) (requiring“actual physical harm” forNIED). 342 McCahill v. CommercialUnionInsurance Co.,446N.W.2d579(Mich.Ct. App. 1989). 343 Nugent v. Bauermeister,489 N.W.2d 148,150(Mich.Ct. App.1992). 344 Lucev.Gerow,280N.W.2d592,593(Mich.Ct. App.1979). See supra 9–11. 345 Henry v. Dow Chem. Co., 701 N.W.2d 684, 692 (Mich. 2005) (“Plaintiffs’ fear, howeverreasonable,isstillnot enoughtostate a claimofnegligence.”). 346 Norfolk& W. Ry.Co.v.Ayers,538U.S.135 (2003).

Company v. Ayers, the plaintiff was able to recover for emotional distress from “fear of developing cancer” from his physical injury –asbestosis.347 Butthefearhadtobe“genuineandserious.”348

Confoundingly,Michigan courtsseemingly nowagreethatPTSDisa physical injury,349 yet that’s still not enough even though so many mental-injurycausesofactionrequirenophysicalmanifestationatall. And what’s more, the same rationale for eliminating the physicalimpact and physical-consequences elements in emotional-distress casesappliestoPTSD:“changedcircumstances relatingtothefactual andscientificinformationavailable.”350

TreatPTSDasa closed-headinjury.

Thehandlingofclosed-headinjuriesundertheMichiganNoFaultAct followed the same trend as emotional-distress torts. And, eventually, that saga ended by the legislature tailoring the Act to fit closed-head injuries. In a nutshell, whether someone has suffered a serious impairment goes straight to the jury “if a licensed allopathic or osteopathic physician who regularly diagnoses or treats closed-head injuries testifies under oath that there may be a serious neurological injury.”351 So a physical injury proven by an MRI was no longer required.352

BecausePTSDandclosed-headinjuriesaresobiologicallysimilarand becausetheyhavesimilarunderlyingproofconcerns,Michigancourts should treat PTSD as a closed-head injury by agreeing with science that PTSD does impair several brain and body functions that are important.

Traumatic brain injury (TBI) is one type of closed-head injury that often coexists with PTSD.353 “The coexistence of TBI and PTSD is

347 Id. at141. 348 Id. 349 See Overweg v. Thomas, 308785,2013WL1920735, at *3(Mich.Ct. App.May 9,2013). 350 Daley v. LaCroix,179N.W.2d390,395(Mich.1970). 351 MICH. COMP. LAWS § 500.3135(2)(2019)(emphasisadded). 352 Allen v. BloomfieldHillsSch.Dist., 760N.W.2d811,816(Mich.Ct. App.2008). 353 U.S. Department of Veterans Affairs, Traumatic Brain Injury and PTSD, https://www.ptsd.va.gov/understand/related/tbi_ptsd.asp(lastvisited May13, 2019).

So PTSD and closed-head injuries are biologically very similar because the limbic, endocrine, and nervous systems all malfunction whethera personissufferingfromPTSDorTBI.

Theyalsosharesimilarproofproblems.It’sclearfromtestimonygiven before Michigan’s House of Representatives in 1995 that Michigan was struggling with understanding closed-head injuries. History is repeatingitselfwithPTSD.Asyoucansee,theconcernswithproving closed-headinjuriesbackin1995applytoPTSDtoday:

The problem with imposing an objective manifestation standard with respect to mild brain injuryisthatitisdivorcedfromclinicalreality.Head injuries often produce real and significant problems that medical science cannot yet objectively measure orconfirm.359

After this testimony, legislators created the requirement that for traumatic brain injury, the issue of recovery would go straight to the jury if a doctor testified that the victim suffered “serious neurological injury.”360

This precise concern over proving closed-head injuries stated in 1995 waslikewisestatedina 1985dissentingopinionbutinregardtoPTSD:

Soft-tissue injuries and psychiatric trauma are difficult or impossible to measure medically. Yet, personswhosufferwiththeseinjuriesforyearswould certainly gladly trade places with those who suffer a badly fractured bone and are incapacitated for 6 or 7 months, but who thereafter are able to lead perfectly normallives.361

So for whatever reason, Michigan courts in the early 1990s accepted closed-headinjuriesasrealbutnotPTSD.

359 TestimonyofGloriaPerezonMich. HouseBill4341 (Feb.14,1995) (Onrecord withauthor). 360 MICH. COMP. LAWS § 500.3135(2)(2019). 361 Garris v. Vanderlaan, 381 N.W.2d 412, 415 (Mich. Ct. App. 1985) (J. Ravitz, dissenting).

While Michigan courts were quibbling over whether closed-head injuries were real and how to prove them, “the medical community was already a long way down the road in developing treatments and strategies for coping with these mere ‘mental, emotional,’ or ‘psychiatric’ injuries.”362 Recognizing this, one courageous Michigan CourtofAppealspanelwiselystated,“[T]hereshouldbenodifference medicallyorlegallybetweenanobjectivelydemonstratedbraininjury, whether the medical diagnosis is a closed head injury, PTSD, Alzheimer's,braintumor,epilepsy,etc.”363

Trustexpertpsychotherapistsbecausetheirmethodsarereliable.

Just as an osteopathic or allopathic physician is qualified to diagnosis a closed-head injury based on symptoms, a physician, psychiatrist, or psychologist should be able to definitively diagnose PTSD. The dissenting opinion in the 1986 Garris case presciently suggested this approach, which science now supports. Judge Ravitz wrote, “Where theordinarymeansofdiagnosisandprescriptionoftreatmentaresuch subjective indications from a patient, a doctor's diagnosis of injury should suffice to satisfy the objective manifestation requirement announced in Cassidy.”364 This is precisely how closed-head injuries arenowproveninno-faultcases.

Michiganjudgesandjuriescanrelyonexperttestimonybecauseithas been deemed reliable by the gatekeeper, the judge. Michigan Rule of Evidence702states:

If the court determines that scientific, technical, or otherspecializedknowledgewillassistthetrieroffact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) thetestimonyistheproductofreliableprinciplesand methods, and (3) the witness has applied the

362 Allen v. BloomfieldHillsSch.Dist., 760N.W.2d811,816(Mich.Ct. App.2008). 363 Id. 364 Garrisv.Vanderlaan, 381N.W.2d412,416 (Mich.Ct. App.1985).

principles and methods reliably to the facts of the case.365

This rule incorporates the United States Supreme Court’s expertvettingfrom Daubert v. Merrell Dow Pharmaceuticals, Inc.366 tofilter outunreliableevidence.367 “[T]hetrial court’sroleasgatekeeperdoes not require it to search for absolute truth, to admit only uncontested evidence, or to resolve genuine scientific disputes.”368 Instead, the properroleistoinquire“intowhethertheopinionisrationallyderived from a sound foundation.”369 Myriad medical and scientific studies form a sound foundation of PTSD knowledge. Not a single study has said that PTSD does not affect an important body function. Rather, theyallsaythatPTSDdoesaffectseveralimportantbodyfunctions.

Doctors, however, are in the best position to diagnose PTSD because theyspendmanyhours,usuallyatregularintervals,overa longperiod of time with PTSD sufferers. Judges, in contrast, do not. Judges are experts in the law, not in science. They have become in Michigan preciselywhatChiefJusticeRehnquistfeared:“amateurscientists.”370 The very fact that Michigan suffers from 40 years of inconsistent PTSD holdings underscores that judges’ usurping the jury’s role of assessing credibility is proof that Daubert has been taken to the extremetothepointwherejudgeswilldeterminethescienceofPTSD insteadofallowingexpertstotestifyandjuriestoassess.

The Michigan Court of Appeals needs to refrain from conflating their role with doctors’, scientists’, and juries’ roles: “The jury has the discretion to believe or disbelieve a witness’s testimony, even when thewitness’sstatementsarenotcontradicted.”371

And, what’s more, science can predict with 93% accuracy, according toatleastonestudy,whethera psychotherapisthasdiagnoseda patient

365 Mich. R. Evid.702. 366 509U.S.579(1993); see Peoplev.Unger, 749N.W.2d272,283(Mich.Ct. App. 2008). 367 Unger, 749N.W.2dat283. 368 Id. 369 Id. 370 Daubertv.MerrellDow Pharm., Inc.,509 U.S. 579,601 (1993). 371 Guerrerov.Smith, 761N.W.2d723,738(Mich.Ct. App.2008).

with PTSD.372 That is reliable data proving that psychiatric diagnoses of PTSD are accurate. Because science supports psychotherapists’ diagnoses that PTSD is “objectively manifested” and does affect important “particular body functions,” courts can rely on their evidence to satisfy these two elements. If courts continue requiring both psychotherapist proof of PTSD and biophysical proof of PTSD, then the automotive insurance industry is unnecessarily increasing medical costs and even perhaps shifting them over to the medical branchoftheinsuranceagency.Let’sjusttrustthescience.

But trial courts do trust doctors’ diagnoses of PTSD in almost every other area of the law. For instance, the Michigan Court of Appeals upheldthata certifiedsocialworker,nota psychologistorpsychiatrist, was competent to give reliable testimony about a plaintiff’s PTSD in an Elliott-Larsen Civil Rights Act case.373 The social worker had 14 years of counseling patients with PTSD and similar injuries.374 Following years of precedent, including Daubert, the court wisely reasoned that any lack in the social worker’s “qualifications are relevanttotheweight,nottheadmissibility,ofhistestimony.”375

Michigan courts overwhelmingly believe psychotherapists’ diagnosis of PTSD when it comes to removing children from their biological parents. To do so requires a much higher burden of proof: clear and convincing evidence.376 In contrast, a jury or judge has to find that a victim’s PTSD is an objectively manifested impairment of an important body function by only a preponderance of the evidence. In at least 80 cases from the Michigan Court of Appeals, a court relied

372 MingxiongHuang,PhD, MedicalPhysicist, UniversityofCalifornia,SanDiego, Cyber Seminar to the United States Department of Veteran’s Affairs (February 8, 2017), Magnetoencephalography as a Potential Imaging Marker for Mild TBI and PTSD, (transcript at https://www.hsrd.research.va.gov/for_researchers/cyber_seminars/ archives/video_archive.cfm?SessionID=2282). 373 Growv.W.A.ThomasCo.,601 N.W.2d 426,435 (Mich.Ct. App.1999). 374 Id. 375 Id. at436. 376 “We review for clear error both the trial court’s decision that a ground for terminationofparental rights hasbeen provedbyclearandconvincingevidenceand, where appropriate, thecourt’sdecisionregardingthechild’sbestinterests.” In re JK, 661N.W.2d216,221 (Mich. 2003).

ona psychotherapist’s diagnosis ofPTSD,usually ina child,asproof thattheterminationofparentalrightswasappropriate.377

In the criminal arena, when a prosecutor, as opposed to a defense attorney,reliesonPTSDevidence,a courtismorewillingtogoalong withit.378 In People v. Hill, forexample,a child’sstatementsabouther brother’s fatal beating eight days after the event were considered an “excitedutterance”underhearsayexceptions.379 A doctortestifiedthat the child, because she suffered from PTSD, “remained under the excitementof”thebeatingevenmorethana weekafterthebeating.380

InMichigan’scriminaljurisprudence,morethananyothersituation,a doctor’s PTSD diagnosis is accepted as reliable under Daubert when scoring sentencing Offense Variables. When a prosecutor attempts to prove at sentencing that the defendant should be scored higher on Offense Variable 4—“[s]erious psychological injury requiring professional treatment occurred to a victim”381—courts invariably allowa psychotherapist’sdiagnosisofPTSDasreliableevidence.

382

Itseems,then,thatwhen(1)socialjusticerequiresitand(2)itdoesn’t go against a judge’s personal interest, that courts have no trouble acceptinga doctor’sdiagnosisofPTSD.

Butanattorneycangreatlyhelptheircasebyproperlypreparingtheir expert to increase the jury’s and judge’s PTSD fluency. This means preparing their experts to be conversant in the lingo of the three elements. For instance, in Overweg, the psychiatrist probably didn’t realize that “objectively manifested” and “particular body function” were terms of art. The psychiatrists were being asked to act as biophysicist like Minxiong Huang.383 The attorney could have

377 See e.g. InreSchadler,890N.W.2d676,679 (Mich.Ct. App. 2016); In re Stoops, 257220,2005WL477839,at*1(Mich. Ct.App.Mar.1,2005);InreWeber,339509, 2018 WL 1344968, at *1 (Mich. Ct. App. Mar. 15, 2018); and In re Henderson, 336561,2017WL5473517,at*3(Mich.Ct. App.Nov.14,2017). 378 See People v. Hill, 317294, 2014 WL 6602570, at *2 (Mich. Ct. App. Nov. 20, 2014). 379 Id. at*3. 380 Id. 381 MICH. COMP. LAWS § 777.34(2019). 382 See e.g. Peoplev.Wellman,910N.W.2d304,307(Mich.Ct. App.2017); People v. Edwards, 333738, 2017 WL 4557266, at *1 (Mich. Ct. App. Oct. 12, 2017); and Peoplev.Coates, 327501,2016WL5328663, at *8 (Mich. Ct.App. Sept.22, 2016). 383 See Huang, supra notes 146and248.

prepared them forthis.Atthe veryleast, the attorney representing the plaintiff in Overweg could have told the psychiatrists the elements so theycouldpreparecompetenttestimony.Thentheexpertpsychiatrists could have cited any number of studies that prove that PTSD does affectseveralimportantbodyfunctions.

A simpleamendmentto500.3135couldbringMichigan jurisprudenceinlinewithscience.

A simple amendment to 500.3135 could reconcile the dissonance between accommodating closed-head injuries but not similar injuries likePTSD.Theamendmentwouldslightlybroaden500.3135(2)(a)(ii) so that a question of fact is created for the jury about the nature and extentofPTSDandwhetherit’sa seriousimpairmentofanimportant bodyfunction.Thenew500.3135wouldlooklikethis:

* * * (ii) There is a factual dispute concerning the nature and extent of the person’s injuries, but the dispute is not material to the determination whether the person hassuffereda seriousimpairmentofbodyfunctionor permanent serious disfigurement. However, for a neurological injury, a question of fact for the jury is created if a licensed medical provider who regularly diagnoses or treats neurological injuries testifies under oath that there may be a serious neurological injury. * * * (5) As used in this section, “serious impairment of body function” means an objectively manifested impairmentofanimportantbodyfunctionthataffects the person’s general ability to lead his or her normal life.

(6) As used in this section, “neurological injury” includes, but is not limited to, closed-head injuries, traumatic brain injury, memory loss, and posttraumaticstressdisorder.

(7) As used in this section, “licensed medical provider”meansa licensed:

Conclusion (a)allopathicorosteopathic physician, (b)psychiatrist, (c)psychologist,or (d)certifiedsocialworker.

In sum, Michigan judges need to fiat justitia ruat caelum—allow justice though the heavens fall.384 It means to make the true and wise decision regardless oftheconsequences. Justice forvictims injuredin serious auto accidents requires Michigan judges to apply scientificbased knowledge about PTSD. The consequences are not relevant when the law and science are so clear: PTSD is an objectively manifestedimpairmentofanimportantbodyfunction.It’snota ghost syndrome.

Butwhetherthevictim’sPTSDisseriousenoughtorecover,whichis put to the test in the third element of a serious-impairment claim, is a totally different issue that it’s concerned with science. So the goal of the No Fault Act to cut down on overcompensation for minor injuries385 isstillachievedevenifcourtsbelievethesciencethatPTSD canbeobjectivelymanifestedanddoesactuallyimpairseveralcritical bodyfunctions.

384 Ellison v. Georgia R.R.,13S.E.809,810 (1891). Inkedasa tattoo on many a bold soul. It’s also found inscribed in marble behind the Georgia Supreme Court bench. See https://www.gasupreme.us/court-information/biographies/ (last accessed April 26,2019). fiat=let;Justitia=justice;ruat=fall;coelum=heaven 385 Garris v. Vanderlaan, 381 N.W.2d 412, 415 (Mich. Ct. App. 1985) (J. Ravitz, dissenting).