# Estate of Jacqueline Harris v. Beaumont Health

> Michigan Court of Appeals · September 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10582330

## Case

- **Court:** Michigan Court of Appeals
- **Decided:** September 12, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10582330

## Opinion text

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

LAWANNA SMITH, Personal Representative of the UNPUBLISHED
ESTATE OF JACQUELINE HARRIS, September 12, 2024

Plaintiff-Appellant/Cross-Appellee,

v No. 365062
Oakland Circuit Court
BEAUMONT HEALTH, LC No. 2021-187353-NH

Defendant-Appellee/Cross-Appellant,

and

TRI COUNTY ORTHOPEDICS, PC, and JACK D.
LENNOX, D.O.,

Defendants-Appellees.

Before: K. F. KELLY, P.J., and CAVANAGH and M. J. KELLY, JJ.

PER CURIAM.

In this medical-malpractice action, plaintiff, Lawanna Smith, as the personal representative
of the Estate of Jacqueline Harris (the decedent), appeals as of right the trial court’s opinion and
order granting summary disposition in favor of defendant, Beaumont Health, on the basis of an
allegedly insufficient affidavit of merit, which also resulted in dismissal of the claims against
defendants, Jack D. Lennox, D.O. and Tri County Orthopedics, PC (TCO). Beaumont cross-
appeals as of right from the same order. Plaintiff also challenges the trial court’s order denying a
motion for leave to amend her witness list. We vacate the trial court’s orders (1) denying plaintiff’s
motion for leave to file an amended witness list, and (2) granting summary disposition in favor of
Beaumont, and remand for further proceedings consistent with this opinion.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

Dr. Lennox, a board-certified orthopedic surgeon, was an employee and owner of TCO.
He was not an employee of Beaumont. In 2014, the decedent sought care from Dr. Lennox at TCO

-1-
for pain in her knee. Dr. Lennox performed a total knee arthroplasty (TKA), which was successful.
He prescribed the decedent Coumadin, a prescription-strength anticoagulant, to prevent blood clots
after the surgery. The decedent recovered well from the surgery.

In 2019, the decedent began suffering from pain in her other knee. She again sought
treatment from Dr. Lennox at TCO. He once again informed the decedent the best course of
treatment was another TKA. She agreed, and the surgery was performed by Dr. Lennox at
Beaumont’s hospital in Farmington Hills, Michigan. Instead of prescribing a prescription-strength
anticoagulant like he did before, Dr. Lennox instructed the decedent to take aspirin instead. About
30 days after the surgery, the decedent suffered an acute pulmonary embolism and died.

Plaintiff sued Dr. Lennox, claiming his failure to prescribe Coumadin after the 2019
surgery was medical malpractice that caused the decedent’s death from a blood clot. Plaintiff
asserted Beaumont and TCO were vicariously liable for Dr. Lennox’s negligence. Attached to the
complaint was an affidavit of merit (AOM) signed by B. Sonny Bal, M.D. In it, Dr. Bal averred
he was a board-certified orthopedic surgeon who had dedicated a majority of his professional time
in the required field during the relevant time period. Dr. Bal also asserted the standard of care
required that Dr. Lennox prescribe a prescription-strength anticoagulant medication and he
breached the standard of care by not doing so which caused the decedent’s death.

Litigation progressed through discovery, which was originally set to end in June 2022,
before the date was extended in a signed, stipulated order to December 12, 2022.1 In a timely-
filed witness list, plaintiff identified Dr. Bal as her only expert in orthopedic surgery. Eventually,
defendants began having issues with scheduling a deposition for Dr. Bal. When he backed out of
a deposition in August 2022, defendants moved the trial court to compel his deposition. In
response, plaintiff informed defendants that Dr. Bal had unexpectedly cut off communication with
plaintiff, which was why his deposition could not be rescheduled. Plaintiff had already begun the
process of finding a new expert in orthopedic surgery, John H. Hall, M.D. On September 16, 2022,
without seeking leave of the trial court to do so, plaintiff filed an amended witness list that removed
Dr. Bal and added Dr. Hall.

The trial court struck the amended witness list because of the procedural error. Plaintiff
then moved for leave to file the amended witness list, which would provide plaintiff with a new
expert in orthopedic surgery. The trial court denied the motion, citing the age of the litigation and
the prejudice to defendants. Plaintiff then moved the trial court to voluntarily dismiss the case
without prejudice, which would allow plaintiff to refile with a new expert witness. The trial court
denied the motion, once again citing prejudice to defendants, who had spent time and money
preparing for the present case.

While these issues with Dr. Bal continued to arise, defendants discovered Dr. Bal had
previously testified that he retired from the practice of medicine in November 2017. Defendants
contended plaintiff was engaged in gamesmanship by trying to shield the truth about Dr. Bal’s

1
During this time period, Beaumont moved for summary disposition under MCR 2.116(C)(10),
arguing there was no genuine issue of material fact that it could not be held vicariously liable for
the alleged negligence of Dr. Lennox. The trial court never decided the motion.

-2-
qualifications to be an expert witness. Defendants then moved for summary disposition under
MCR 2.116(C)(8) and (C)(10) on the ground that Dr. Bal had not been qualified to prepare and
submit the AOM with plaintiff’s complaint. Plaintiff asserted that the challenge did not warrant
summary disposition because, with respect to the AOM, the only relevant fact was whether
plaintiff’s attorney reasonably believed Dr. Bal had been qualified at the time the lawsuit was filed.
Plaintiff insisted it was reasonable for an attorney to believe an affidavit signed by a doctor under
oath. Defendants argued that plaintiff’s attorney’s alleged belief was not reasonable because a
simple search of the Internet or review of Dr. Bal’s curriculum vitae showed he was retired during
the relevant time period.

The trial court granted defendants’ motions for summary disposition under MCR
2.116(C)(10). The trial court determined that Dr. Bal had not been qualified to prepare the AOM
because of his retirement from the practice and teaching of medicine. Further, while the trial court
determined it was reasonable for plaintiff’s attorney to believe Dr. Bal’s averments about his
qualifications, it concluded the reasonableness of the belief expired after more than a year of
litigation. The trial court stated plaintiff’s attorney should have determined Dr. Bal was not
qualified in a timely manner and cured the error. The trial court commented that discovery had
been closed since June 2022, seemingly ignoring the order that extended discovery. In any event,
the trial court concluded that summary disposition was warranted because the AOM attached to
plaintiff’s complaint was insufficient. The trial court also decided the ruling required a dismissal
of the complaint with prejudice.

Plaintiff moved the trial court to reconsider its decision, asserting it had misapplied relevant
law regarding AOMs and the correct remedies when errors with them arose. The trial court denied
the motion. This appeal and cross-appeal followed.

II. AMENDED WITNESS LIST

Plaintiff argues that the trial court abused its discretion by denying the motion to amend
the witness list without first considering the factors in Dean v Tucker, 182 Mich App 27; 451
NW2d 571 (1990).2 We agree.

A. STANDARD OF REVIEW

A trial court’s decision regarding whether to allow a party to amend a witness list is
reviewed for an abuse of discretion. Tisbury v Armstrong, 194 Mich App 19, 20; 486 NW2d 51
(1991). “A trial court abuses its discretion when its decision falls outside the range of reasonable
and principled outcomes.” Danhoff v Fahim, ___ Mich ___, ___; ___ NW3d ___ (2024) (Docket
No. 163120); slip op at 11. “A trial court necessarily abuses its discretion when it makes an error
of law.” Id. (quotation marks and citation omitted).

2
Although Dean “is not strictly binding pursuant to MCR 7.215(J)(1) because it was issued before
November 1, 1990, as a published opinion, it nevertheless ‘has precedential effect under the rule
of stare decisis’ pursuant to MCR 7.215(C)(2).” Legacy Custom Builders, Inc v Rogers, 345 Mich
App 514, 525 n 1; 8 NW3d 207 (2023).

-3-
B. LAW AND ANALYSIS

The trial court abused its discretion when it denied plaintiff’s motion for leave to file an
amended witness list because it resulted in an effective dismissal of the case and the trial court did
not consider the Dean factors.

“Witness lists are an element of discovery,” and “[t]he ultimate objective of pretrial
discovery is to make available to all parties, in advance of trial, all relevant facts which might be
admitted into evidence at trial.” Grubor Enterprises, Inc v Kortidis, 201 Mich App 625, 628; 506
NW2d 614 (1993). “The purpose of witness lists is to avoid ‘trial by surprise.’ ” Id., quoting Stepp
v Dep’t of Natural Resources, 157 Mich App 774, 778; 404 NW2d 665 (1987). “MCR 2.401(I)(1)
provides that all parties must file and serve witness lists within the time allotted by the trial court.”
Duray Dev, LLC v Perrin, 288 Mich App 143, 162; 792 NW2d 749 (2010). “ ‘The court may
order that any witness not listed in accordance with this rule will be prohibited from testifying at
trial except upon good cause shown.’ ” Cox v Hartman, 322 Mich App 292, 315; 911 NW2d 219
(2017), quoting MCR 2.401(I)(2).

It is undisputed in this case that the trial court ordered the parties to file their witness lists,
including proposed expert witnesses, by May 6, 2022. Plaintiff filed a timely witness list on April
25, 2022, naming Dr. Bal as the only expert in orthopedic surgery. Plaintiff attempted to amend
the list without leave of the trial court to exchange out Dr. Bal for Dr. Hall in October 2022. The
trial court struck the amended witness list because plaintiff had not moved for leave to file it. 3
Plaintiff then sought such leave, which the trial court denied.

Because plaintiff’s motion for leave to amend the witness list to add Dr. Hall as an expert
in orthopedic surgery was filed after the deadline set by the trial court, “[i]t was [] plaintiff’s burden
to demonstrate good cause for the late addition of a new expert witness.” Cox, 322 Mich App at
315. “The denial of a late motion to add a witness ‘is proper where the movant fails to provide an
adequate explanation and show that diligent efforts were made to secure the presence of the
witness.’ ” Id., quoting Tisbury, 194 Mich App at 20. “A court should consider whether prejudice
would result from granting a motion to add an expert witness.” Cox, 322 Mich App at 315.

While a showing of good cause is the typical standard when deciding a motion to amend a
witness list to add an expert after the deadline, this Court has established a more rigorous analysis
when the denial of such would effectively result in a dismissal. The parties disagree regarding
whether the trial court’s decision required the more rigorous analysis. “Disallowing a party to call
witnesses can be a severe punishment, equivalent to a dismissal.” Duray Dev, 288 Mich App at
164. “But that proposition does not mean that disallowing witnesses is always tantamount to a

3
In part, plaintiff contends the trial court abused its discretion because it promised to grant the
motion for leave to amend the witness list during the October 12, 2022 hearing regarding the
motion to strike plaintiff’s amended witness list. But the trial court never made such a promise.
The court only indicated at the hearing that such a motion must be filed for the trial court to
consider it. And the trial court’s written order entered after the hearing states “that plaintiff may
file a motion to amend their witness list to be heard on a later date and time.” Thus, the court
indicated it would consider such a motion, if filed. The court did not promise to grant it.

-4-
dismissal. Nor does it mean that a trial court cannot impose such a sanction even if it is equivalent
to a dismissal.” Id.

“A plaintiff in a medical malpractice action bears the burden of establishing (1) the
applicable standard of care, (2) breach of that standard of care by the defendant, (3) injury, and (4)
proximate causation between the alleged breach and the injury.” Danhoff, ___ Mich at ___; slip
op at 11 (quotation marks and citations omitted). Except for in circumstances undisputedly not
present in this case, “[e]xpert testimony is required to establish the applicable standard of care and
demonstrate a breach of that standard.” Zehel v Nugent, 344 Mich App 490, 510; 1 NW3d 387
(2022). “Failure to prove any one of the [above] elements is fatal” to a medical-malpractice action.
Id. (quotation marks and citation omitted).

In the present case, as noted, plaintiff originally listed Dr. Bal as an expert witness
regarding orthopedic surgery. Importantly, this was the same specialty as Dr. Lennox, which
meant Dr. Bal would be able to testify regarding the standard of care Dr. Lennox should have used
when treating the decedent and whether that standard was breached. Establishing the applicable
standard of care and whether it was breached are necessary elements of a medical-malpractice
claim. Danhoff, ___ Mich at ___; slip op at 11. In his AOM, Dr. Bal explained that he believed
the applicable standard of care required Dr. Lennox to prescribe the decedent a stronger
anticoagulant medication than aspirin. Further, Dr. Bal opined that the failure to do so violated
the standard of care and resulted in the decedent’s death. Plaintiff’s original witness list did not
contain any other experts in orthopedic surgery.

When plaintiff moved for leave to amend the witness list, the explanation for the motion
was that Dr. Bal had unexpectedly become uncommunicative while trying to schedule his
deposition. Plaintiff expressed that Dr. Bal’s refusal to participate in litigation required a new
expert witness to be found. Plaintiff had already found another expert, Dr. Hall, who was also
board-certified in orthopedic surgery. Therefore, plaintiff sought to exchange those two expert
witnesses. Defendants argued that the record did not support plaintiff’s contention that Dr. Bal
became uncommunicative during the litigation. Nevertheless, defendants agreed that Dr. Bal was
not capable of testifying as an expert witness regarding the applicable standard of care for Dr.
Lennox and whether he breached it. Despite the parties’ disagreement regarding why Dr. Bal was
no longer available to testify as an expert, they all agreed he was not available. Because Dr. Bal
undisputedly was unable to testify as an expert witness in this case, the denial of plaintiff’s motion
to amend the witness list left plaintiff without an expert witness regarding standard of care and
breach of it.

The trial court’s denial of the motion effectively was a dismissal. See Duray Dev, 288
Mich App at 164. As just discussed, the trial court’s order made it so plaintiff did not have an
expert witness regarding standard of care and breach. Further, as the caselaw cited above
establishes, plaintiff had to prove the standard of care and whether it was breached by using an
expert witness in the same specialty as Dr. Lennox. See Zehel, 344 Mich App at 510. Because
plaintiff no longer had an expert witness, plaintiff could not prove two necessary elements. This
was fatal to plaintiff’s claims in this case. See id. As a result, the trial court’s order disallowing
plaintiff from exchanging Dr. Bal for Dr. Hall was an effective dismissal because plaintiff could
not possibly prove the claims brought in the complaint. See id.; Duray Dev, 288 Mich App at 164.
Indeed, the effect of the order was clear when, just one month later, the trial court ordered the case

-5-
dismissed because Dr. Bal was not qualified to be an expert witness in the case, which meant he
had not been qualified to provide the AOM.

As noted, when an order that precludes a witness from testifying would effectively result
in a dismissal, the trial court must engage in more rigorous considerations before doing so. See
Dean, 182 Mich App at 32 (“Where the sanction is the barring of an expert witness resulting in
the dismissal of the plaintiff’s action, the sanction should be exercised cautiously.”). Trial courts
have “the broad inherent power . . . to address misconduct and sanction the parties and lawyers
who appear before the court.” Tolas Oil & Gas Exploration Co v Bach Servs & Mfg, ___ Mich
App ___, ___; ___ NW3d ___ (2023) (Docket No. 359090); slip op at 10-11. While dismissal is
a potential sanction, Michigan law favors the “disposition [of] litigation on the merits[.]” Gueye
v State Farm Mut Auto Ins Co, 343 Mich App 473, 489; 997 NW2d 307 (2022) (quotation marks
and citation omitted; alterations in original). “Dismissal is a drastic step that should be taken
cautiously.” Vicencio v Jaime Ramirez, MD, PC, 211 Mich App 501, 506; 536 NW2d 280 (1995).
“Before imposing such a sanction, the trial court is required to carefully evaluate all available
options on the record and conclude that the sanction of dismissal is just and proper.” Id. When a
trial court fails to consider other options on the record, it abuses its discretion. Id. at 506-507.

In addition to requiring the trial court to consider other viable options before effectively
dismissing a case by barring the testimony of a necessary expert witness, Michigan caselaw
requires the consideration of a number of factors, generally referred to as the Dean factors. Dean,
182 Mich App at 32. This Court stated the factors in the following manner:
Among the factors that should be considered in determining the appropriate
sanction are: (1) whether the violation was wilful or accidental, (2) the party’s
history of refusing to comply with discovery requests (or refusal to disclose
witnesses), (3) the prejudice to the defendant, (4) actual notice to the defendant of
the witness and the length of time prior to trial that the defendant received such
actual notice, (5) whether there exists a history of plaintiff engaging in deliberate
delay, (6) the degree of compliance by the plaintiff with other provisions of the
court’s order, (7) an attempt by the plaintiff to timely cure the defect, and (8)
whether a lesser sanction would better serve the interests of justice. This list should
not be considered exhaustive. [Id. at 32-33 (citations omitted).]

In the present case, the trial court denied plaintiff’s motion to file an amended witness list.
Though the trial court did not speak about sanctions for plaintiff’s failure to timely file the
corrected witness list, the sanction was plain from the decision. That is, the trial court’s order
barred plaintiff from changing the expert witness needed to prove standard of care and breach
related to the alleged medical malpractice of Dr. Lennox. As a matter of law, and as discussed
above, this caused plaintiff’s claims to fail, effectively resulting in a dismissal. The trial court did
not hold a hearing regarding plaintiff’s motion to file an amended witness list. In the trial court’s
opinion and order denying the motion, it commented solely on whether granting the motion would
be prejudicial to defendants:

This matter was filed on April 9, 2021. Witness lists in this matter were due by
May 6, 2022, with discovery closing on June 7, 2022. Trial in this matter is

-6-
currently set for February 7, 2023. Allowing an amended witness list at this late
stage is also highly prejudicial.

The above quotation is the sum total of the trial court’s reasoning with respect to its denial
of the motion for leave to amend the witness list. While prejudice to the defense is one of the
Dean factors, it is not the only one. Moreover, as this Court has stated, the trial court must consider
other potential sanctions on the record before entering an order that effectively amounts to a
dismissal. Vicencio, 211 Mich App at 506. In the simplest terms, and as is evident from the above
quotation, the trial court did not do that; and, as a result, abused its discretion as a matter of law.
See id. Additionally, even the trial court’s analysis of prejudice seems to be on the basis of a
misunderstanding of the procedural status of the case. Pertinently, the trial court stated discovery
closed about five months before the order was entered. However, the record shows the June 7,
2022 discovery deadline was extended to December 12, 2022. Thus, discovery was still open,
which, at the very least, reduces any prejudice to the defense.

In sum, by denying plaintiff’s motion for leave to file an amended witness list, the trial
court effectively dismissed plaintiff’s case for a failure to timely file a final witness list. Although
the sanction is not named in the same order, the effect was preordained by the substance of the
order. Briefly, without an expert witness in orthopedic surgery, plaintiff’s case simply could not
progress. Because the trial court’s decision amounted to a dismissal, the trial court was required
to consider the Dean factors, especially the possibility of sanctions other than an effective
dismissal, such as a fine for the late amendment and the additional discovery needed to be
undertaken by the defense. The trial court’s failure to do so was an abuse of discretion, warranting
reversal and a remand for further proceedings at which time the trial court can engage in the proper
analysis with reference to the proper facts. See Vicencio, 211 Mich App at 506.4

III. SUMMARY DISPOSITION

Plaintiff argues that the trial court erred when it granted Beaumont’s motion for summary
disposition and dismissed the case. We agree.

4
The parties urge us to consider whether, if the trial court had considered the Dean factors, it still
would have chosen to deny the motion and leave plaintiff without an expert witness. However, as
an error-correcting court, we generally will not decide issues not ruled upon originally by the trial
court. Jawad A Shah, MD, PC v State Farm Mut Auto Ins Co, 324 Mich App 182, 210; 920 NW2d
148 (2018). This is especially true when the trial court’s decision failed to apply the appropriate
legal framework, which is the case here. See id. (holding that because “it is apparent that the trial
court’s ruling in the instant case was based on an erroneous application of the pertinent legal
principles . . . it would be better for any additional matters . . . to be addressed in the first instance
by the trial court under the proper legal framework”). To address this issue as suggested by the
parties, we would have to invent reasoning by the trial court, and then analyze whether the
imaginary analysis of the trial court was an abuse of discretion. We decline to do so for the same
reasons stated in Jawad A Shah, MD, PC, 324 Mich App at 210.

-7-
A. STANDARD OF REVIEW

“This Court [] reviews de novo decisions on motions for summary disposition brought
under MCR 2.116(C)(10).” Pace v Edel-Harrelson, 499 Mich 1, 5; 878 NW2d 784 (2016). A
motion for summary disposition under MCR 2.116(C)(10) “tests the factual sufficiency of the
complaint . . . .” Joseph v Auto Club Ins Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012). “In
evaluating a motion for summary disposition brought under this subsection, a trial court considers
affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR
2.116(G)(5), in the light most favorable to the party opposing the motion.” Maiden v Rozwood,
461 Mich 109, 120; 597 NW2d 817 (1999). Summary disposition is proper where there is no
“genuine issue regarding any material fact.” Id. “A genuine issue of material fact exists when
reasonable minds could differ on an issue after viewing the record in the light most favorable to
the nonmoving party.” Auto-Owners Ins Co v Campbell-Durocher Group Painting & Gen
Contracting, LLC, 322 Mich App 218, 224; 911 NW2d 493 (2017) (quotation marks and citation
omitted). “A trial court’s rulings concerning the qualifications of proposed expert witnesses are
reviewed for an abuse of discretion.” Rock v Crocker, 499 Mich 247, 260; 884 NW2d 227 (2016).
“A trial court does not abuse its discretion when its decision falls within the range of principled
outcomes.” Id.

B. LAW AND ANALYSIS

In light of the analysis above, the trial court’s summary-disposition decision was
premature, warranting reversal.

Plaintiff argues that the trial court’s order granting summary disposition in favor of
Beaumont and dismissing the case was erroneous for a number of reasons. The primary
disagreement relates to Dr. Bal’s qualifications to provide the AOM in this case. Our Supreme
Court provided the following guidance on this issue:
Under Michigan’s statutory medical malpractice procedure, plaintiff must
obtain a medical expert at two different stages of the litigation—at the time the
complaint is filed and at the time of trial. With regard to the first stage, under MCL
600.2912d(1), a plaintiff is required to file with the complaint an affidavit of merit
signed by an expert who the plaintiff’s attorney reasonably believes meets the
requirements of MCL 600.2169. With regard to the second stage, the trial, MCL
600.2169(1) states that “a person shall not give expert testimony . . . unless the
person” meets enumerated qualifications (emphasis added). Thus, while at the
affidavit-of-merit stage a plaintiff’s attorney need only “reasonably believe” the
expert is qualified, at trial the standard is more demanding because the statute states
that a witness “shall not give expert testimony” unless the expert “meets the [listed]
criteria” in MCL 600.2169(1).

The Legislature’s rationale for this disparity is, without doubt, traceable to
the fact that until a civil action is underway, no discovery is available. See MCR
2.302(A)(1). Thus, the Legislature apparently chose to recognize that at the first
stage, in which the lawsuit is about to be filed, the plaintiff’s attorney only has
available publicly accessible resources to determine the defendant’s board
certifications and specialization. At this stage, the plaintiff’s attorney need only

-8-
have a reasonable belief that the expert satisfies the requirements of MCL
600.2169. See MCL 600.2912d(1). However, by the time the plaintiff’s expert
witness testifies at trial, the plaintiff’s attorney has had the benefit of discovery to
better ascertain the qualifications of the defendant physician, and, thus, the
plaintiff’s attorney’s reasonable belief regarding the requirements of MCL
600.2169 does not control whether the expert may testify. [Grossman v Brown,
470 Mich 593, 598-599; 685 NW2d 198 (2004).]

The required qualifications mentioned above are listed in MCL 600.2169(1), which states as
follows:
(1) In an action alleging medical malpractice, a person shall not give expert
testimony on the appropriate standard of practice or care unless the person is
licensed as a health professional in this state or another state and meets the
following criteria:

(a) If the party against whom or on whose behalf the testimony is
offered is a specialist, specializes at the time of the occurrence that
is the basis for the action in the same specialty as the party against
whom or on whose behalf the testimony is offered. However, if the
party against whom or on whose behalf the testimony is offered is a
specialist who is board certified, the expert witness must be a
specialist who is board certified in that specialty.

(b) Subject to subdivision (c), during the year immediately
preceding the date of the occurrence that is the basis for the claim or
action, devoted a majority of his or her professional time to either or
both of the following:

(i) The active clinical practice of the same health
profession in which the party against whom or on
whose behalf the testimony is offered is licensed and,
if that party is a specialist, the active clinical practice
of that specialty.

(ii) The instruction of students in an accredited health
professional school or accredited residency or
clinical research program in the same health
profession in which the party against whom or on
whose behalf the testimony is offered is licensed and,
if that party is a specialist, an accredited health
professional school or accredited residency or
clinical research program in the same specialty.

(c) If the party against whom or on whose behalf the testimony is
offered is a general practitioner, the expert witness, during the year
immediately preceding the date of the occurrence that is the basis

-9-
for the claim or action, devoted a majority of his or her professional
time to either or both of the following:

(i) Active clinical practice as a general practitioner.

(ii) Instruction of students in an accredited health
professional school or accredited residency or
clinical research program in the same health
profession in which the party against whom or on
whose behalf the testimony is offered is licensed.

Before considering whether the trial court properly concluded summary disposition was
warranted on the basis of Dr. Bal’s lack of qualifications, we must first determine whether, as
argued by plaintiff, the trial court’s order granting summary disposition was premature.
“Generally, a grant of summary disposition is premature before discovery on a disputed issue is
complete.” Doe v Gen Motors, LCC, 511 Mich 1038, 1038-1039 (2023). “However, a party may
not simply allege that summary disposition is premature. The party must clearly identify the
disputed issue for which it asserts discovery must be conducted and support the issue with
independent evidence.” Powell-Murphy v Revitalizing Auto Communities Environmental
Response Trust, 333 Mich App 234, 253; 964 NW2d 50 (2020). “The dispositive inquiry is
whether ‘further discovery presents a fair likelihood of uncovering factual support for the party’s
position.’ ” Id., quoting Mazzola v Deeplands Dev Co, LLC, 329 Mich App 216, 230; 942 NW2d
107 (2019).

Despite the parties’ treatment of this issue as separate from the issue above, they are
undeniably intertwined. The trial court’s order granting summary disposition was on the basis of
a determination Dr. Bal had not been qualified to provide an AOM in this case. While plaintiff
disputed whether this was true, plaintiff had effectively agreed Dr. Bal could not be plaintiff’s
expert when it came to standard of care and breach. Plaintiff explained that Dr. Bal had
unexpectedly become unresponsive during discovery. In an attempt to remedy that problem,
plaintiff sought to obtain a new expert in orthopedic surgery, Dr. Hall. The litigation regarding
plaintiff’s attempt to do so was discussed in greater depth above. It is enough to say the trial court
abused its discretion when it denied plaintiff’s motion for leave to amend the witness list to add
Dr. Hall as an expert. Whether the trial court, after performing the appropriate analysis, will decide
similarly on remand remains to be seen. But because there is a possibility plaintiff will be
permitted to amend the witness list and have a qualified expert witness, the trial court’s summary-
disposition order was premature. See Powell-Murphy, 333 Mich App at 253.

More specifically, Beaumont’s motion for summary disposition on the basis of plaintiff’s
failure to file a sufficient AOM with the complaint was filed on November 4, 2022. Notably, this
was filed after the trial court struck plaintiff’s amended witness list but before the trial court
decided plaintiff’s motion for leave to file the amended witness list. Despite the trial court’s
apparent confusion, discovery was still open when the motion was filed. On the basis of a
stipulated order signed by the parties and the trial court, discovery did not close until December
12, 2022. Moreover, absent the trial court’s order precluding plaintiff from replacing Dr. Bal with
Dr. Hall, discovery could have continued with a deposition of Dr. Hall and the filing of an amended
AOM by Dr. Hall. See Legion-London v Surgical Institute of Mich Ambulatory Surgery Ctr, LLC,

-10-
331 Mich App 364, 376; 951 NW2d 687 (2020) (“In sum, we hold that under MCR 2.112(L)(2)(b),
an AOM may be amended by submitting an affidavit signed by a different expert when there has
been a challenge to the ‘qualifications of the signer.’ Such an amendment relates back to the
original filing. MCR 2.118(D).”). In other words, because discovery was still open and plaintiff
had found and proposed a new expert witness in the appropriate specialty, “ ‘further discovery
present[ed] a fair likelihood of uncovering factual support for the party’s position.’ ” Powell-
Murphy, 333 Mich App at 253, quoting Mazzola, 329 Mich App at 230. Because summary
disposition was premature, we vacate the order.5 The trial court should consider the motion after
employing the appropriate framework to determine whether plaintiff should be permitted to amend
the witness list to add a new expert.6

IV. CROSS-APPEAL

Beaumont argues that the trial court could have granted summary disposition on the basis
of there being no question of fact regarding whether Beaumont could be held vicariously liable for
Dr. Lennox’s alleged medical malpractice, which is an alternative ground for affirmance. As this
Court has noted, “[a]s an error-correcting court, this Court’s review is generally limited to matters
actually decided by the lower court.” Jawad A Shah, MD, PC v State Farm Mut Auto Ins Co, 324
Mich App 182, 210; 920 NW2d 148 (2018) (citations omitted). Even so, “this Court may affirm
the grant of summary disposition on an alternate ground that was not decided by the trial court
when the issue was presented to the trial court.” Id. Nevertheless, when the circumstances demand
such, this Court is free to “conclude that it would be better for any additional matters relating to
[plaintiff’s] complaint to be addressed in the first instance by the trial court . . . .” Id. Because it
would be beneficial for the trial court to consider this argument in the first instance, we decline to
consider it.

V. CONCLUSION

For the reasons stated above, we vacate the trial court’s orders (1) denying plaintiff’s
motion to file an amended witness list and (2) granting summary disposition in favor of Beaumont

5
While we decline to consider and decide the issue on the merits, we caution the trial court that
precedent of our Supreme Court requires challenges to an AOM to be limited to whether a
plaintiff’s attorney reasonably believed the expert was qualified. Grossman, 470 Mich at 598-599,
citing MCL 600.2912d(1).
6
Plaintiff also challenges the trial court’s order denying the motion for voluntary dismissal without
prejudice. However, plaintiff only requested reversal of that order if we affirmed the trial court’s
orders denying the motion to amend the witness list and for summary disposition. Because we
have vacated those orders, plaintiff’s challenge to the trial court’s decision regarding dismissal
without prejudice is now moot, and we decline to consider it. See TM v MZ, 501 Mich 312, 317;
916 NW2d 473 (2018) (quotation marks and citation omitted) (holding that a case is moot when
“[i]t involves a case in which a judgment cannot have any practical legal effect upon a then existing
controversy,” and that, “[a]s a general rule, this Court will not entertain moot issues or decide moot
cases”).

-11-
and dismissing the case. We remand to the trial court for further proceedings consistent with this
opinion. We do not retain jurisdiction.

/s/ Kirsten Frank Kelly
/s/ Mark J. Cavanagh
/s/ Michael J. Kelly

-12-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10582330. Public record. Not legal advice.