# Croda v. Sarnacki > Michigan Court of Appeals · May 5, 1981 · 106 Mich. App. 51 URL: https://www.frixlaw.com/law-library/cases/9667608 ## Case - **Full name:** Croda v. Sarnacki - **Court:** Michigan Court of Appeals - **Decided:** May 5, 1981 - **Citations:** 106 Mich. App. 51; 307 N.W.2d 728 - **Precedential status:** Published - **Opinion:** Dissent by Bronson - **Judges:** Bronson, Gillis, Bashara - **Cited by:** 12 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/9667608 ## Opinion text Bronson, P.J. (dissenting). I have two major areas of disagreement with the majority’s opinion in this case. I therefore dissent. I I disagree with most aspects of the majority’s analysis on the question of whether the trial court erred in instructing the jury to deduct $4,000 from any judgment which it might render in plaintiffs’ favor. Preliminarily, contrary to the majority view, only an extremely technical reading of the transcript can lead one to conclude that plaintiffs assert this issue for the first time on appeal. While most of the discussion at trial was concerned with the propriety of telling the jury about the $4,000 settlement with the South Macomb Hospital when no evidence has been introduced during trial concerning the same, it is patently clear that plaintiffs’ counsel desired that the trial court make a *62 postverdict adjustment if the jury found in his clients’ favor. Indeed, the trial court noted that Wayne County Circuit Court Judge Baum had done the postjudgment arithmetic calculations himself in a prior case. The judge here stated, however, that there was no case law supporting this approach and specifically said, "I can’t find any authority for the position”. Plaintiffs’ counsel immediately rejoined, "My authority for the position is * * clearly indicating that he had no objection to the trial court making any postjudgment calculations himself. All the arguments on this issue were manifestly premised on which approach was proper — submitting the settlement figure to the jury or having the trial judge do the calculations himself. While the majority prefers the approach used in Wilson v W A Foote Memorial Hospital, 91 Mich App 90, 96-97 ; 284 NW2d 126 (1979), lv to appeal held in abeyance 409 Mich 868 (1980), allowing the jury to know about the previous settlement, I believe that the reasoning employed in Brewer v Payless Stations, Inc, 94 Mich App 281 ; 288 NW2d 352 (1979), lv gtd 409 Mich 871 (1980), is far more persuasive. I agree with the majority that, standing by itself, MRE 408 is not applicable to this controversy. The jury was informed of the settlement for reasons other than proving the validity or invalidity of the claim. At the same time, a substantial possibility existed, as expressed by plaintiffs’ attorney, that the jury would misuse the information concerning the settlement and conclude that plaintiffs’ claim was of dubious validity given the relatively low amount for which the case against the hospital was settled. Since plaintiffs’ counsel was willing to allow the trial court to make any necessary postverdict adjustments to a *63 favorable judgment rendered, the fact of the settlement was immaterial and inadmissible. MRE 402. Assuming, arguendo, that counsel’s willingness to allow the trial judge to make the postverdict adjustments should not be deemed sufficient to remove the prior settlement as material to a fact in issue, I still believe that under these circumstances MRE 403 would preclude the admission of the amount of the settlement. The jury’s knowledge of the low settlement figure was extremely prejudicial and clearly outweighed any probative value it had, given that counsel was prepared to allow the trial court to make the necessary adjustments. Furthermore, I am convinced that defense counsel was primarily interested in having the settlement amount come before the jury precisely because of the prejudical impact it would have. 1 The trial court believed it was compelled to give the instruction since requested by defense counsel. At one point during the arguments, the court suggested that defense counsel might want to withdraw the request for the instruction. The defense attorney, however, was adamant about the jury being informed of the settlement figure. It is clear that the trial court did not recognize its discretion to refuse the instruction. It is equally apparent that had it been aware of its discretion to reject the instruction, it would have done so. The following pertinent excerpts from the trial court’s comments on this issue unequivocally establish both facts: "The Court: First I guess with respect to reference to *64 the verdict, the settlement between Mr. Vander Male and Mr. Lopatin, South Macomb Hospital, I can’t find any authority to support Mr. Lopatin’s proposition that under Michigan law that I am not required under Michigan law to bring that settlement to the- jury. I understand your position on it as far as in terms of money being in evidence. "Michigan differs from maybe every state in the union but my understanding, and you can check me, the most recent cases I could find which I had done research on is in that that matter must be brought to the jury’s attention and they must do the arithmetic rather than me. "The last person — I haven’t talked with Judge Baum. The last person who tried this in Wayne Circuit, to do the arithmetic themselves was Judge Baum and even he, I am quite sure — I can’t find any authority for the position. "The Court: You may well be right. As I read the cases, I am bound to tell them that they must subtract from the verdict the amount of settlement. As I say if I were sitting in the Supreme Court which I am obviously not, I would not have signed my name to such an opinion of such a rule. "The Court: It’s a matter now. It has no probative value with respect to liability. It is a matter of — Michigan law is an anomaly. If I were sitting in the Supreme Court, I wouldn’t have adopted such a procedure. I think the judge should do the arithmetic but that is not the way the Supreme Court has ruled. They have ruled that the jury must do the arithmetic and therefore the jury must be instructed from any verdict which it renders it must subtract $4,000.00.” Wilson, surpa, relied on by the majority, specifically refers to questions concerning the admission of a settlement with a joint tortfeasor as being a matter within the trial court’s discretion. Here, the trial judge did not recognize his discretion so *65 that his ruling cannot be seriously characterized as an exercise of the same. In People v Jackson, 391 Mich 323, 332 ; 217 NW2d 22 (1974), the Supreme Court indicated that the failure of a trial judge to recognize his discretion is a basis for reversal. This rule has also been applied in civil cases. The Cleveland-Cliffs Iron Co v First State Ins Co, 105 Mich App 487 ; 307 NW2d 78 (1981). Finally, as concerns this issue, plaintiffs’ argument below that the jury should not be informed of the $4,000 settlement because the fact of settlement was never introduced into evidence is well taken. The two cases relied upon by the majority, Wilson, supra, and Reno v Heineman, 56 Mich App 509 ; 224 NW2d 687 (1974), both arose in the context of evidentiary rulings made by the trial court. In the instant case, the defense never attempted to admit evidence of the settlement. The jury had not been apprised of the settlement prior to the close of the proofs by either side. MRE 408 does not require exclusion of a settlement when the evidence of the settlement is offered for another legitimate purpose. Here, the evidence was simply not offered. The defendants’ failure to introduce the fact and amount of settlement in their case in chief deprived plaintiffs of any opportunity to present testimony under oath which might tend to minimize the obvious prejudicial impact of the low settlement figure. 2 _ *66 The error in the instant case cannot be deemed harmless. The relatively low amount of the settlement may well have convinced jurors that plaintiffs’ claim was frivolous. II I also disagree with the majority’s conclusion concerning the likely effects of the following instruction: "Now, the question is, 'How do you as jurors determine what the standard of practice is and whether or not it has been observed by the defendants in this case?’ "Jurors and judges do not know and are not permitted arbitrarily to say what are the proper methods of treating a patient under the circumstances in this case. This is a medical question. What is or is not a proper practice by a urologist or a gynecologist, the treatment of a patient or what is or is not standard of practice of the usual practice in the community is a question for experts and can be established only by their testimony. That is, it is only those learned in urology or gynecology who can say what should have been done or what was done or not to have been done and it is only those learned in urology or gynecology who can say what was done was proper.” Plaintiffs’ counsel objected to the instruction as follows: "* * * I object to the Court’s [c]harge that you have *67 to have someone learned in urology or gynecology in order to testify as to the — as to what should or should not have been done. I think the test is if a person is a medical doctor or even an osteopathic doctor who is familiar with the standard of care that is the test to be applied and not that he has to be aware of the specialty of both urology and gynecology.” Plaintiffs contend that the phrase "learned in urology or gynecology” suggests that the expert had to be a specialist in both of these fields to be considered competent to testify on the appropriate standard of care. Defendants argue that the instruction was correct and that expert testimony on the standard of care requires "more than mere knowledge of a speciality”. To be a qualified medical expert, the witness need not necessarily be of the same school or specialty as the defendant. It is sufficient if the witness has expertise in the standard of care imposed by the defendant’s school or specialty. Siirila v Barrios, 398 Mich 576, 590-594 ; 248 NW2d 171 (1976), Wilson, supra, 101-102 . Dr. George Miller, plaintiffs’ expert, testified that he is not board certified in urology or gynecology. However, he was board certified in surgery and stated that he kept up on the medical literature in obstetrics, gynecology, and urology. Miller testified that he also attended general surgical conferences covering these topics. Finally, he testified that he was familiar with the standard of care as it pertained to specialists in obstetrics, urology, and gynecology, practicing in Detroit, for patients who have problems like those of plaintiff. As regards Dr. Miller’s status as a medical expert, this case is similar to Wilson, supra. There, this Court rejected the assertion that plaintiffs’ expert need be an expert in obstetrics to give an opinion on the *68 emergency nature of a breech presentation. The Wilson Court noted that the situation in question was not totally limited to the field of obstetrics. The same is also true in the instant case, where Dr. Miller’s certification as a surgeon necessarily required bim to keep up on the relevant standard of care for surgical procedures of many varieties. The question here, however, is not whether Miller was properly qualified to give expert testimony, but whether the trial court’s instructions would lead the average juror to conclude that his testimony should be given less weight because he was not a specialist in urology and gynecology. I believe that the instruction as given was improper. Although "learned” arguably could be interpreted simply as requiring knowledge of urology or gynecology, which Miller had, the jurors could also have construed the instruction to mean that the witness must be a specialist in those fields. 3 Unlike the majority, I think the instruction was imcomplete and erroneous. This is particularly true in light of plaintiffs’ counsel’s very specific objection to the charge and the ease with which the trial court could have rectified the same. In the instant case, I cannot say that the error was harmless. Defense counsel’s cross-examination of Dr. Miller constituted a strong attack on his qualifications and credibility. While this attack was proper and within permissible bounds, in combination with the erroneous instruction, the possibility that the jury associated "learned in gynecology and urology” as the equivalent of requiring specialization in these fields was greatly *69 enhanced. On balance, I am persuaded that it is highly probable that the jury’s verdict was improperly affected by the instruction. I would reverse and remand for a new trial. It is clear that any verdict in plaintiffs’ favor would have been lessened by the $4,000 even if the jury was not told of the settlement figure. Thus, I am unable to see any reason, other than the tactical one mentioned, for defense counsel’s insistence that the instruction be given. The majority states, "There is no reason to assume that, based upon this instruction, the jury concluded plaintiffs’ claims were without merit.” In my opinion this statement imposes upon the litigant an affirmative obligation to actually prove the error harmful. Of course, this is almost always an impossibility. There is no reason to assume in this case that the jury did not conclude plaintiffs’ claims were without merit based upon this instruction. Longstanding case law provides that if the error committed was on motion of the opposition, as here, the opposition must establish that the complaining party was not prejudiced by the error. Campau v Traub, 27 Mich 215, 216 (1873). Additionally, ancient and venerable case law provides *66 that where there has been instructional error, unless it is clear that appellant could not have prevailed in any case, the error cannot be deemed harmless. Toledo & A A R Co v Johnson, 49 Mich 148, 150 ; 13 NW 492 (1882). Additionally, Wilson, supra, which the majority relies on, forthrightly acknowledges the potential for prejudice in admitting evidence of a prior settlement. In Wilson , the settlement amount was $150,000, $75,000 as to each of two settling defendants. Clearly, if a potential for prejudice was apparent in Wilson , it is hard to rebut that the $4,000 settlement here likely did substantial mischief. The instruction would have been proper had the trial court also charged: "Learned in urology or gynecology does not mean that the witness must be a specialist in these fields. It is sufiicient if the witness is familiar with the requisite standard of care by training, education or experience.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9667608. Public record. Not legal advice.