Dean v. Tucker

• Citation: 205 Mich.App. 547,517 N.W.2d 835
• Decision Date: 07 June 1994
• Docket Number: Docket No. 147875
• Parties: Gloria DEAN, Plaintiff-Appellant, v. Norman D. TUCKER, Frank Mafrice, and Sommers, Schwartz, Silver & Schwartz, P.C., Defendants-Appellees.
• Court: Court of Appeal of Michigan (US)

Page 835

517 N.W.2d 835

205 Mich.App. 547

Gloria DEAN, Plaintiff-Appellant, v. Norman D. TUCKER, Frank Mafrice, and Sommers, Schwartz Silver & Schwartz, P.C., Defendants-Appellees.

Docket No. 147875.

Court of Appeals of Michigan.

Submitted March 10, 1994, at Detroit.

Decided June 7, 1994, at 9:10 a.m.

Released for Publication July 18, 1994.

Dennis E. Moffett, Pontiac, for plaintiff.

Plunkett & Cooney, P.C. by Christine D. Oldani and Larry R. Donaldson, Detroit, for defendants.

Before CAVANAGH, P.J., and WAHLS and CROCKETT, ^* JJ.

PER CURIAM.

In this legal malpractice action, plaintiff appeals as of right from the circuit court's orders refusing to find plaintiff's witness qualified as an expert and holding that the damages resulting from defendants' failure to respond timely to a mediation evaluation were to be determined by the court, not the jury. We affirm.

The lawsuit underlying the malpractice action arose from injuries sustained by plaintiff after she stepped into an open manhole in the parking lot of a drug store. Defendant Frank Mafrice represented plaintiff in her lawsuit against the property owner. During the course of the litigation, Mafrice failed to accept timely the mediation award on plaintiff's behalf, which under the court rule in effect at the time, GCR 1963, 316.6(h)(1), constituted a rejection of the award. The property owner also rejected the mediation award.

By 1984, plaintiff had been examined by twenty-five doctors and various diagnoses were made. Ultimately, plaintiff underwent a "spine fusion" operation that was performed by Dr. Richard Scott. At trial, Mafrice decided that Dr. Scott's testimony would be detrimental to plaintiff's case because of negative comments contained in the doctor's medical records, including that she was an uncooperative patient and that she may have sought additional treatment because of the pending litigation. ¹ Near the end of trial, the court indicated outside of the jury's presence that it was uncertain regarding the causal link between plaintiff's fall and the spinal fusion operation. Although Mafrice arrived the following day with case law to support his position, the trial court sua sponte struck all evidence regarding the spinal fusion. After the ruling, Mafrice continued to believe that he should not call Dr. Scott; however, he allegedly did not consult with plaintiff regarding his decision. At the conclusion of the trial, the jury awarded plaintiff $58,500 with interest, or $99,227.90.

Plaintiff subsequently filed her malpractice action against defendants, claiming that Mafrice's decision not to call Dr. Richard Scott that was made without her consent amounted to malpractice and that his failure to file the acceptance of the mediation award caused her loss of entitlement to mediation sanctions. Defendants admitted liability arising from the failure to accept the mediation award, but strenuously defended the decision not to call Dr. Scott as a witness.

On the second day of trial, the court refused to find plaintiff's proposed expert witness qualified because he lacked the skill and qualifications to render an opinion regarding Mafrice's trial strategy in light of the fact that he had never tried a personal injury case. Because plaintiff had no other expert to testify regarding the issue of Mafrice's negligence, the court partially dismissed her malpractice claim. The court also ruled that the damages resulting from defendants' failure to file an acceptance, being the mediation sanctions that would have been awarded to plaintiff, was an issue of law to be decided by the trial court. Afterward, the trial judge from the underlying personal injury lawsuit conducted an evidentiary hearing and determined that the amount of mediation sanctions he would have awarded plaintiff totaled $7,167.50.

Plaintiff first contends that the court abused its discretion in failing to find her witness qualified as an expert. We disagree.

In professional malpractice actions, an expert is usually required to establish the standard of conduct, breach of the standard, and causation. Law Offices of Lawrence J. Stockler P.C. v. Rose, 174 Mich.App. 14, 48, 436 N.W.2d 70 (1989). The qualification of a witness as an expert and the admissibility of the expert's testimony are within the trial court's discretion. Mulholland v. DEC Int'l Corp., 432 Mich. 395, 402, 443 N.W.2d 340 (1989); Berryman v. K-Mart Corp., 193 Mich.App. 88, 98, 483 N.W.2d 642 (1992). We find no abuse of discretion for not finding the expert qualified. Plaintiff's expert had never tried a personal injury case and, therefore, would not have been able to provide competent testimony regarding the issue of defendant Mafrice's trial strategy, which was the basis of plaintiff's malpractice claim against defendants. Hence, the court properly granted summary disposition to defendants with regard to that portion of plaintiff's case relating...