Guerrero v. Smith
| Decision Date | 16 September 2008 |
| Docket Number | Docket No. 279595.,Docket No. 277983. |
| Citation | 761 N.W.2d 723,280 Mich. App. 647 |
| Parties | GUERRERO v. SMITH. |
| Court | Court of Appeal of Michigan — District of US |
John L. Noud, Mason, for the plaintiff.
Secrest Wardle (by Janet Callahan Barnes), Farmington Hills, for the defendants.
Before: MARK J. CAVANAGH, P.J., and JANSEN and KIRSTEN FRANK KELLY, JJ.
In Docket No. 277983, plaintiff appeals by right the trial court's judgment for defendants on a jury verdict of no cause of action. In Docket No. 279595, plaintiff appeals by right the trial court's post-judgment order taxing costs and denying plaintiff's request to sanction defendants under MCR 2.114. This Court has consolidated the appeals. We affirm in part, reverse in part, and remand for modification of the order taxing costs consistent with this opinion.
In Docket No. 277983, plaintiff first argues that he was prejudiced by several instances of misconduct by defense counsel and that he is therefore entitled to a new trial. We disagree.
The proper standard of review for claims of attorney misconduct in civil cases was discussed by our Supreme Court in Reetz v. Kinsman Marine Transit Co., 416 Mich. 97, 102-103, 330 N.W.2d 638 (1982):
When reviewing an appeal asserting improper conduct of an attorney, the appellate court should first determine whether or not the claimed error was in fact error and, if so, whether it was harmless. If the claimed error was not harmless, the court must then ask if the error was properly preserved by objection and request for instruction or motion for mistrial. If the error is so preserved, then there is a right to appellate review; if not, the court must still make one further inquiry. It must decide whether a new trial should nevertheless be ordered because what occurred may have caused the result or played too large a part and may have denied a party a fair trial. If the court cannot say that the result was not affected, then a new trial may be granted. Tainted verdicts need not be allowed to stand simply because a lawyer or judge or both failed to protect the interests of the prejudiced party by timely action.
See also Hilgendorf v. St. John Hosp. & Med. Ctr. Corp., 245 Mich.App. 670, 682-683, 630 N.W.2d 356 (2001), and Badalamenti v. William Beaumont Hosp., 237 Mich.App. 278, 290, 602 N.W.2d 854 (1999).
Plaintiff argues that defense counsel prejudicially and improperly questioned him and another witness regarding his past marijuana use. Relying in part on Wayne Co. Bd. of Rd Comm'rs. v. GLS LeasCo, Inc., 394 Mich. 126, 136-138, 229 N.W.2d 797 (1975), plaintiff asserts that "such questioning was irrelevant and prejudicial" and that it evidenced "a deliberate and calculated attempt to prejudice the jury."
Plaintiff has maintained throughout this case that he sustained a traumatic brain injury as a result of an automobile accident on July 22, 2002, and that this neurological injury has impaired his cognitive abilities and mental acuity. Plaintiff testified at trial that the symptoms of his alleged closed head injury included cognitive deficiencies, confusion, forgetfulness, difficulty in organizing his thoughts and affairs, and a general inability to focus. As evidenced by the deposition testimony of plaintiff's witness, Dr. Hankenson, at least one of plaintiff's physicians apparently believed that the nature and extent of plaintiff's marijuana use was a relevant consideration in diagnosing plaintiff's condition.
It is true that defense counsel was not permitted to prove plaintiff's "general lack of morality" with evidence of past instances of specific conduct such as marijuana use. People v. Crabtree, 87 Mich App. 722, 726, 276 N.W.2d 478 (1979). Nor is an attorney generally permitted to prove a person's bad character with specific instances of past conduct. See MRE 404(b)(1). However, it does not appear that defense counsel's questions concerning plaintiff's past marijuana use were designed to attack plaintiff's general character or morality. Instead, defense counsel's questions were designed to determine whether plaintiff's past marijuana use had in any way affected his cognitive abilities and mental acuity independent of the July 2002 automobile accident. Many of the mental and cognitive symptoms attributed by plaintiff to the automobile accident could equally have been attributable, at least in part, to other causal factors such as drug use. Defense counsel's questioning of plaintiff concerning the nature and extent of his marijuana use tended to aid the jury in determining whether plaintiff's cognitive and mental deficiencies were attributable to the automobile accident or to some other cause. The testimony elicited from plaintiff on this subject did not run afoul of MRE 404(b)(1) because it was not elicited for the purpose of proving plaintiff's bad character. Nor was the testimony irrelevant or unfairly prejudicial. MRE 401; MRE 403.1 Defense counsel did not act improperly by asking plaintiff about his past marijuana use.
Plaintiff also argues that it was improper for defense counsel to question witness Steve Porterfield on cross-examination concerning plaintiff's past marijuana use. It is clear from the record that defense counsel sought to question Porterfield concerning plaintiff's past marijuana use for the purpose of impeaching plaintiff's credibility on this issue. Plaintiff initially testified that he had smoked marijuana only once at a University of Michigan football tailgate party. Plaintiff then admitted that although he had also smoked marijuana occasionally as a teenager, he no longer used the drug. It is clear that defense counsel's questioning of Porterfield—who worked for plaintiff during the summers of 1999, 2000, 2001, 2002, and 2003—was designed to test plaintiff's credibility with respect to the issue of marijuana use. Indeed, Porterfield testified in response to defense counsel's questions that he had smoked marijuana with plaintiff a "couple times" between 1999 and 2003, thereby undercutting the credibility of plaintiff's earlier testimony.
The problem with defense counsel's questioning of Porterfield, however, is that it did not satisfy the technical requirements of MRE 608(b)(2). Pursuant to MRE 608(b)(2), "[s]pecific instances of the conduct of a witness" may, "if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness ... concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified." In light of plaintiff's own testimony that he had used marijuana only once since his teenage years, evidence that Porterfield had smoked marijuana with plaintiff a "couple times" since 1999 would have been probative of plaintiff's truthfulness or untruthfulness. Therefore, defense counsel's questioning of Porterfield satisfied one of the prongs of MRE 608(b)(2). However Porterfield had not been called as a character witness and did not testify concerning plaintiff's character for truthfulness or untruthfulness on direct examination. Before specific instances concerning another witness's character for truthfulness or untruthfulness may be inquired into on cross-examination, the witness subject to cross-examination must already have testified on direct examination regarding the other witness's character for truthfulness or untruthfulness. MRE 608(b)(2); see also People v. Fuzi No. 1, 116 Mich.App. 246, 252, 323 N.W.2d 354 (1982). Because Porterfield was not called as a character witness and did not testify concerning plaintiff's character for truthfulness or untruthfulness on direct examination, defense counsel was not permitted to elicit from him on cross-examination testimony concerning specific instances of marijuana use for the purpose of impeaching plaintiff. MRE 608(b)(2). The trial court erred by admitting Porterfield's testimony in this regard.
Nonetheless, defense counsel's improper questioning of Porterfield concerning specific instances of marijuana use with plaintiff was harmless. In civil cases, evidentiary error is considered harmless unless "declining to grant a new trial, set aside a verdict, or vacate, modify, or otherwise disturb a judgment or order `appears to the court inconsistent with substantial justice.'" Chastain v. Gen. Motors Corp., 467 Mich. 888, 654 N.W.2d 326 (2002) (citation omitted); see also Lewis v. LeGrow, 258 Mich.App. 175, 200, 670 N.W.2d 675 (2003). As indicated on the special verdict form, although the jurors ultimately concluded that plaintiff had not suffered a serious impairment of body function, they did conclude that plaintiff was, in fact, injured as a result of the July 2002 automobile accident. Moreover, the jurors had heard both plaintiff's own testimony and the deposition testimony of Dr. Hankenson on the issue of plaintiff's marijuana use. In light of the jury's special verdict in this case, and taking into account the other admissible evidence concerning plaintiff's past marijuana use, we simply cannot conclude that the improperly elicited testimony of Porterfield was so prejudicial that declining to set aside the verdict or grant a new trial would be inconsistent with substantial justice. Chastain, supra at 888, 654 N.W.2d 326. Porterfield's improperly elicited testimony concerning specific instances of marijuana use with plaintiff was therefore harmless, id., and we will not reverse on the basis of harmless error, Ypsilanti Fire Marshal v. Kircher (On Reconsideration), 273 Mich.App. 496, 529, 730 N.W.2d 481 (2007).
Plaintiff next argues that defense counsel prejudicially emphasized and mischaracterized a letter written by his attorney to Dr. Joel Saper on September 8, 2005. The letter stated, in pertinent part:
Dear Dr. Saper:
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Enclosed is a copy of an abstract of an article ... entitled "MRI [magnetic...
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Hearsay
...vicarious admissions because plainti൵ failed to show that co-workers were the agents of the “supervisory” employee. Guerrero v. Smith , 761 N.W.2d 723 (Mich. App. 2008). Plainti൵’s counsel’s letter to physician requesting a high resolution proton density weighted MRI “to provide objective e......
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Admissions
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