Lawanna Smith, as personal representative of the estate of Jacqueline Harris, filed a complaint in the Oakland Circuit Court against Jack D. Lennox, D.O.; his employer, Tri County Orthopedics, PC; and Beaumont Hospital, alleging medical malpractice. Lennox performed knee replacement surgery on Harris and allegedly failed to prescribe her a prescription-strength anticoagulant. About 30 days after the surgery, Harris died from an acute pulmonary embolism.
The complaint was supported by an affidavit of merit (AOM) signed by B. Sonny Bal, M.D., in which he attested, pursuant to MCL 600.2912d, that he was a licensed, practicing physician specializing in orthopedic surgery during the one-year period before the alleged malpractice occurred in May 2019. Plaintiff timely filed a witness list in April 2022, listing Bal as her sole orthopedic surgery expert. The parties scheduled Bal’s deposition for August 15, 2022, but Bal had to cancel due to an emergency. On September 16, 2022, plaintiff’s counsel told defendants’ counsel that he had been unable to obtain new potential dates from Bal for his deposition, and plaintiff, without the trial court’s permission, filed an amended witness list, removing Bal and naming John Hall, M.D., as plaintiff’s orthopedic surgery expert.
The trial court ordered plaintiff to produce Bal for a deposition by November 2, 2022, and struck the amended witness list. Plaintiff then filed an emergency motion to amend her witness list and, on November 1, 2022, filed an “order of voluntary dismissal” purporting to dismiss all defendants without prejudice. The court rejected plaintiff’s attempt to dismiss, and plaintiff moved for voluntary dismissal. The court denied plaintiff’s motion for voluntary dismissal and emergency motion to file an amended witness list. Plaintiff moved for reconsideration, which the court also denied, rejecting plaintiff’s claim that Bal was uncooperative and noting that, had plaintiff diligently prosecuted her case, she would have realized that Bal was uncooperative or unqualified much sooner than November 2022. The court granted Beaumont’s motion for summary disposition and closed the case, concluding that the AOM was invalid because Bal was not engaged in the practice or teaching of medicine in the one-year period before the alleged conduct.
Plaintiff appealed as of right and the Court of Appeals held in an unpublished per curiam opinion, issued September 12, 2024 (Docket No. 365062), that the trial court had abused its discretion because its order denying plaintiff’s motion to amend considered only prejudice, and it was required to also consider the other factors set forth in Dean v Tucker, 182 Mich App 27 (1990). The panel also noted that the court’s order had effectively resulted in the dismissal of plaintiff’s action, and the court was required to consider other potential sanctions first. Defendants applied for leave to appeal in the Supreme Court. In lieu of granting leave, the Supreme Court ordered and heard oral argument on the applications.
In a unanimous opinion, the Michigan Supreme Court held:
The correct standard for courts when considering whether to allow a party to amend its witness list is the good-cause standard set forth in MCR 2.401(I)(2); therefore, the Court of Appeals erred by determining that the trial court abused its discretion when it failed to consider the Dean factors. Nonetheless, the circuit court abused its discretion by denying plaintiff’s motion under the good-cause standard that it purported to apply where the record indicated that plaintiff acted diligently and believed that Bal was qualified to execute the AOM. The circuit court additionally erred by prematurely granting summary disposition on the basis of its flawed decision denying plaintiff’s motion to amend her witness list to add an expert witness, which resulted in plaintiff’s failure to establish her claim.
Dean Factors
In Dean, the Michigan Court of Appeals reviewed the trial court’s order barring the plaintiff from calling any witnesses as a sanction for failing to timely amend her witness list. The Court of Appeals listed factors to consider in this situation, including (1) whether the violation was willful or accidental; (2) the plaintiff’s history of refusing to comply with discovery requests or disclose witnesses; (3) the prejudice to the defendant; (4) notice to the defendant of the witness and how long before trial notice was received; (5) whether the plaintiff engaged in deliberate delay; (6) the plaintiff’s compliance with other provisions of the court’s order; (7) any attempt by the plaintiff to timely cure the defect; and (8) whether a lesser sanction would better serve the interests of justice.
Only Factor (7) primarily relates to good cause. A trial court’s application of the Dean factors to a motion to amend a witness list does not focus on the most relevant considerations of that inquiry. While the Dean factors could be relevant, the primary considerations for a court in assessing a motion to amend are the diligence of the moving party and the prejudice that either side would incur from granting or denying the motion.
Source Smith v. Beaumont Hospital, MSC 167720.
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