Gainey v. Sieloff

• Decision Date: 24 November 1987
• Docket Number: Docket No. 100339
• Citation: 415 N.W.2d 268,163 Mich.App. 538
• Parties: Joseph GAINEY and Enola Gainey, Plaintiffs-Appellees, v. Norman SIELOFF, Fred Birch, Greg Smolinski, Gerald Cliff, James Stec, Robert Sumner, John Sliva and Scott Roberts, individually and in their representative capacities as police officers for the City of Detroit; and the City of Detroit, a municipal corporation, Defendants-Appellants. (On Remand)
• Court: Court of Appeal of Michigan — District of US

Page 268

415 N.W.2d 268

163 Mich.App. 538

Joseph GAINEY and Enola Gainey, Plaintiffs-Appellees, v. Norman SIELOFF, Fred Birch, Greg Smolinski, Gerald Cliff James Stec, Robert Sumner, John Sliva and Scott Roberts individually and in their representative capacities as police officers for the City of Detroit; and the City of Detroit, a municipal corporation, Defendants-Appellants. (On Remand)

Docket No. 100339.

Court of Appeals of Michigan.

Submitted May 6, 1987.

Decided Oct. 6, 1987.

Released for Publication Nov. 24, 1987.

Fried, Saperstein, De Vine & Kohn, P.C. by James C. Howarth, Southfield, for plaintiffs-appellees.

Donald Pailen, Corp. Counsel, and William L. Woodard, Asst. Corp. Counsel, Detroit, for defendants-appellants.

Before MAHER, P.J., and WAHLS and HOOD, JJ.

PER CURIAM.

This case comes before us on remand from the Supreme Court for the purpose of addressing the merits of certain evidentiary rulings made by the trial court. 428 Mich. 894, 405 N.W.2d 877 (1987). In our prior decision in this case, we essentially concluded that the majority of issues now under consideration were not reviewable due to their abandonment or to defendants' failure to make an offer of proof. 154 Mich.App. 694, 700-702, 398 N.W.2d 498 (1986). In view of the conclusions stated in the Supreme Court's order of remand regarding the evidentiary matters now before us, we reverse our prior decision.

The underlying facts in this police-brutality action were set forth in our prior decision:

"The defendant police officers testified that they raided Ricky's Restaurant, which was owned by plaintiffs, based on information that two men were dealing drugs there. As they approached the restaurant, a crowd dispersed and two individuals ran inside. As Officer Sieloff began to open the door, it was slammed in his face. He then managed to get inside, where he was confronted by plaintiff Joseph Gainey with a stick. Soon, the other officers were able to push their way in, and they saw Sieloff and Gainey engaged in a physical struggle. Officers Smolinski and Sumner pulled Gainey away and removed him from the premises. Gainey resisted strongly and as they got through the door, they fell to the sidewalk.

"Gainey testified that he was holding the door closed during a shift change, when the police burst in unannounced. As the door was flung open, Gainey was knocked to the floor. As he tried to get up, a police officer struck him on the arm with a black, cylindrical object. Although he did not struggle, an officer kicked him in the stomach while two others dragged him outside. There, he was thrown to the ground, kneed in the back and handcuffed. Because of the trauma, he urinated in his pants.

"Gainey was taken to the First Precinct station. He testified that, while handcuffed and confined to the bullpen, Officer Sieloff struck him in the mouth. He was then handed a citation for interfering with a police officer in the performance of his duty. Gainey noticed that his left arm was swelling and requested medical treatment. It is unclear how long a delay occurred, but once he was taken to the hospital he had to wait several hours in the emergency room. The hospital staff then determined that he had a broken arm, and they applied a temporary cast. He was held overnight as a police prisoner with his right arm handcuffed to the bed.

"Gainey eventually underwent surgery and a metal plate was screwed to the bone to secure the fracture. There was permanent injury to the arm because of damaged nerves which could not be surgically corrected. Gainey also underwent an operation on a preexisting hernia which was apparently aggravated in the course of his arrest. Gainey was never convicted of the interference charge as the police officers failed to appear at the time scheduled for trial.

"Plaintiffs filed a nine-count complaint. Pursuant to an order granting partial summary judgment, Count VIII was dismissed. The remaining counts were submitted to the jury. The jury returned a verdict of no cause of action as to Count II, conspiracy pursuant to 42 USC 1985, Count IV, malicious prosecution, Count VI, false arrest and imprisonment, and Count VII, intentional infliction of emotional distress. As to Count I, a claim brought under 42 USC 1983, the jury found liability only against Officers Sieloff, Smolinski and Sumner. As to Count V, a claim for assault and battery, the jury found direct liability only against Sieloff and found vicarious liability against the City of Detroit. As to Counts I and V, the jury awarded actual damages of $100,000, exemplary damages of $50,000, and punitive damages of $30,000 with respect to the federal claim. The jury also concluded, as to Count III, that each of the officers was liable for negligence. With respect to the negligence count, the jury found that plaintiff's total damages, without duplicating any damages awarded on Counts I and V, were $100,000 in actual damages and $50,000 in exemplary damages. As to Count IX, plaintiff Enola Gainey's claim for loss of consortium, the jury awarded $75,000." 154 Mich.App. at 698-699, 398 N.W.2d 498.

The first issue we address on remand concerns the trial court's exclusion of testimony by defendants' expert medical witness, Joseph Posch, M.D., regarding the cause of Joseph Gainey's arm injuries. In our previous opinion, we concluded that defendants' failure to pursue laying a foundation for the admission of this evidence constituted an abandonment of the issue. 154 Mich.App. at 700, 398 N.W.2d 498. The Supreme Court, in its order of remand, however, stated that "[a]n offer of proof as to the expert's opinions was not required because the substance of the testimony was apparent from the context in which the questions were asked. MRE 103." 428 Mich. at 895, 405 N.W.2d 877.

Howard B. Schwartz, M.D., plaintiffs' expert medical witness, testified without objection at a video deposition which was presented to the jury that Joseph Gainey's broken arm was most likely the result of the arm having been hit with significant force by a blunt object and not of Gainey's having fallen to the ground. At trial, when defendants' expert medical witness, Dr. Posch, was asked by defense counsel to disclose his "opinion as to how the break in Gainey's arm occurred," plaintiffs objected, apparently on the basis that the question lacked a sufficient foundation. The objection was sustained, and counsel went on to establish that Dr. Posch had performed surgery on similar fractures approximately twelve times and that such a fracture was very rare. The expert opined that it was possible for such a fracture to occur as the result of being struck by a blunt instrument or of a fall. Defense counsel then asked:

"Based upon your review [of the medical records and X-rays] and your experience and training, what is your opinion as to how Mr. Gainey's arm was broken?"

Plaintiffs objected on the basis that Dr. Posch had no "personal knowledge of how that break may have occurred," and the trial court sustained the objection, stating:

"I appreciate the fact he's reviewed the X-rays and that he is certainly qualified as a medical expert, but to respond to the question in the form that it's been asked, would call for speculation on his part because it goes beyond the realm of medical expertise. To ask him what his opinion is as to how the break occurred. Certainly, I suppose, [a] medical expert could testify to certain areas of experience in terms of how breaks are incurred. But certainly you can't asked [sic] him what his opinion is, how this specific break occurred, unless he has some basis in fact to make a statement.

"So you certainly haven't laid a foundation first of all. And secondly, the question in the form which it's asked calls for speculation."

Defense counsel then established that Dr. Posch had seen thousands of broken forearms and asked the expert whether he had earlier stated that a fracture such as Gainey's was rare, to which Dr. Posch responded:

"We have this type of break, 'cause there's not only a break in the radius, in the left radius where--but there's also a dislocation of the wrist because of the--I thought of a fall."

Plaintiffs immediately objected on the basis that Dr. Posch's answer was not responsive to the question, and the trial court sustained the objection "because the answer is not responsive and it's based upon speculation." Later, the trial court also sustained plaintiffs' objection when defense counsel began summarizing Dr. Posch's testimony in closing argument, indicating that the fracture was caused by a fall. The court instructed the jury to disregard defense counsel's statement.

We find that the trial court's exclusion of Dr. Posch's opinion regarding the cause of Gainey's broken arm constitutes an abuse of discretion. It seems clear to us that Dr. Posch was a qualified expert, that the facts of the case required an expert's interpretation, and that Dr. Posch's knowledge was peculiar to experts rather than to lay persons. Gallagher v. Parshall, 97 Mich.App. 654, 657, 296 N.W.2d 132 (1980). An expert may testify in terms of opinion, and a trial court may require the prior disclosure of the underlying facts or data for such an opinion. MRE 705; Thornhill v. Detroit, 142 Mich.App. 656, 658, 369 N.W.2d 871 (1985). In this case, defense counsel established that Dr. Posch was a qualified medical expert who had reviewed Gainey's medical records and had examined the X-rays of Gainey's fractured arm. Obviously, any opinion rendered regarding the cause of Gainey's fracture would have been based on the expert's review of Gainey's medical records and X-rays, interpreted in light of the expert's prior experience with thousands of broken arms. The trial court seemed to suggest that the expert was required to have first-hand or eyewitness knowledge regarding the infliction of Gainey's injury in order to permit into evidence an opinion regarding the cause of the injury. An...