Arrington v. Detroit Osteopathic Hospital Corp.

Murphy, J.

(dissenting). I respectfully dissent. The quoted portion of the trial court’s rationale leads me to conclude that the trial court strongly disagreed with the jury’s verdict and attached little credibility to defendants’ experts. The majority seems to adopt a similar view. This is not enough to justify setting aside a jury’s verdict.

The jury rendered a general verdict of no cause of action, which could have been based upon a lack of negligence or a lack of evidence of the proximate cause of death. It was basically undisputed that if there was sufficient injury to the pulmonary artery, it was likely that the decedent would have died regardless of the nature of the treatment. The deposition testimony of Dr. Russenow, introduced at trial, is specific and limited in asserting that the bullet did no damage to the main branch of the decedent’s pulmonary artery; Dr. Russenow was not asked, and did not state, his findings regarding whether branches of the pulmonary artery were injured, although he suggested that they almost certainly were, given the location of the wound. On the other hand, plaintiff’s own expert witness, Dr. Boruchow, after examining x-ray evidence, concluded that the entire upper lobe of the decedent’s right lung, including branches of the pulmonary artery, exclusive of the main pulmonary artery, had been penetrated. Dr. Bivens’ testimony was that the effect of an injury to a branch of the pulmonary artery, where this injury was, is identical to the effect of an injury to the *568 main branch of the pulmonary artery. Thus, the theory of the defense expert was not inconsistent with the physical facts, and it was for the jury to determine which testimony to accept and which to reject.

I am of the view that the evidence in this closely drawn case supporting defendants’ position was of sufficient weight to justify the verdict of no cause of action and that the trial court exceeded its discretion by invading the province of the jury. See Bridwell v Segel, 362 Mich 102 ; 106 NW2d 386 (1960); Cebulak v Lewis, 320 Mich 710 ; 32 NW2d 21 (1948). I would reverse the trial court’s decision to grant the plaintiff a new trial.