Keefer v. C. R. Bard, Inc.

• Decision Date: 20 October 1981
• Docket Number: Docket No. 51633
• Citation: 110 Mich.App. 563,313 N.W.2d 151
• Parties: Susan KEEFER, Plaintiff-Appellee, v. C. R. BARD, INC., a foreign corporation, Defendant-Appellant, and Caro Community Hospital, a Michigan corporation, and Loretta Hoose, jointly andseverally, Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 151

313 N.W.2d 151

110 Mich.App. 563

Susan KEEFER, Plaintiff-Appellee, v. C. R. BARD, INC., a foreign corporation, Defendant-Appellant, and Caro Community Hospital, a Michigan corporation, and Loretta

Hoose, jointly andseverally, Defendants.

Docket No. 51633.

Court of Appeals of Michigan.

Oct. 20, 1981.

Released for Publication Dec. 22, 1981.

Cicinelli, Mossner, Majoros & Alexander, P. C., Saginaw by Eugene D. Mossner and William S. Pearson, Saginaw, for plaintiff-appellee.

Keil, Henneke, Ruhala & McKone, Flint, for defendant-appellant C. R. Bard, Inc.

Before BASHARA, P. J., T. M. BURNS and BEASLEY, JJ.

T. M. BURNS, Judge.

Defendant C. R. Bard, Inc., appeals as of right a March 12, 1980, jury verdict finding it liable to plaintiff for damages of $150,000. We affirm.

On September 20, 1972, plaintiff, who was about to give birth, was admitted as a patient to the Caro Community Hospital. As she was being prepared for the delivery room, a catheter was placed in her left arm. After the needle punctured her arm, plaintiff heard the nurse who inserted it say that something had broken off. An unsuccessful attempt to find the severed catheter in plaintiff's arm was made. Following her trip to the delivery room in which she gave birth to twin boys, an X-ray revealed that the broken catheter had lodged in plaintiff's lung. The next day she underwent surgery to remove the catheter.

It was the contention of the defendant hospital during trial that the accident occurred because the catheter needle, which had been purchased from defendant Bard, was defective. Bard, on the other hand, contended throughout the trial that the needle was not defective but that defendant Hoose, the nurse who had inserted it into plaintiff's arm, had not followed the instructions that it had supplied with the needle.

Appellant Bard has briefed a number of issues for our consideration, none of which requires reversal.

Bard first argues that the trial judge erred in granting a motion in limine filed by plaintiff in which she requested that the trial judge prohibit any reference to the fact that she was single at the time of the accident and that immediately thereafter she permitted third parties to adopt the twins to whom she gave birth. Bard complains that plaintiff was permitted to be referred to as Susan Keefer at trial when in fact she was married several weeks before trial to one Arnold Rock. Although Bard admits plaintiff's marital status was irrelevant to litigate any damages, it argues that it was "an offense to the integrity of the judicial process" to misrepresent plaintiff's marital status.

The trial judge ruled that any reference to plaintiff's marital status or to the subsequent adoption of her children was irrelevant and that the probative value of this evidence was outweighed by its potential prejudicial effect.

This Court will not reverse a trial judge's determination that the prejudicial effect of evidence outweighs its probative value or his decision that certain proffered evidence is not relevant unless we are convinced that the judge's rulings in these matters amount to an abuse of discretion. See Aetna Life Ins. Co. v. Brooks, 96 Mich.App. 310, 292 N.W.2d 532 (1980); Jarecki v. Ford Motor Co., 65 Mich.App. 78, 237 N.W.2d 191 (1975). We find no evidence of such an abuse of discretion in this case. Admission of evidence that plaintiff was unmarried and pregnant and evidence that she put her two children up for adoption after their birth very likely would have diverted the jury's attention from the crucial issues of this case and would have substantially prejudiced plaintiff.

We find defendant Bard's reliance on the case of Wood v. Detroit Edison Co., 409 Mich. 279, 294 N.W.2d 571 (1980), to be misplaced. That case does not support Bard's contention that the trial judge erred in permitting plaintiff to refer to herself as "Susan Keefer". In Wood, the Supreme Court addressed the question of whether remarriage of a plaintiff-surviving spouse was admissible evidence in a wrongful death action. The plaintiff in that case sought damages for the loss of society and companionship of her first husband. The trial judge denied a protective order that would have prohibited the mention of plaintiff's remarriage. On appeal, the Supreme Court determined that the plaintiff should be referred to by the name which she regularly used:

"We therefore hold that evidence of a plaintiff surviving spouse's remarriage may not be used to determine damages. If the plaintiff continues to regularly use the name Wood-Ms. or Mrs. Wood-after a remarriage, she is entitled to a protective order prohibiting referring to her or addressing her by the name of her present husband. The defendant's lawyer has not the right to address or refer to her by a name which she does not choose regularly to use. If, however, at the time of trial, she regularly uses her new husband's name, she cannot properly ask the court to require the defendant's lawyer to address or refer to her by a name which she no longer regularly uses. An appropriate limiting instruction may be requested by plaintiff in this regard." Id., 288-289, 294 N.W.2d 571.

The facts of this case are not analogous to those of the Wood decision. The present case is not a wrongful death action in which loss of society and companionship are claimed as injuries. Further, as plaintiff points out, there is no proof in this case that she does not continue to refer to herself as "Susan Keefer". Therefore, we find the arguments on this issue to be totally without merit.

Defendant next argues that the trial judge erred in permitting plaintiff's treating physician to testify as an expert concerning the cause of the catheter's severance.

Under the applicable rule of evidence, MRE 702, a trial judge has discretion to admit expert opinion into evidence:

"If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

Three factors must be established to the satisfaction of the trial judge before expert opinion is deemed admissible: the witness must be qualified as an expert in his field, there must be facts which require an expert's interpretation or analysis, and the witness's knowledge must be peculiar to experts rather than to lay persons. Gallagher v. Parshall, 97 Mich.App. 654, 657, 296 N.W.2d 132 (1980); Dep't of Natural Resources v. Frostman, 84 Mich.App. 503, 269 N.W.2d 655 (1978).

A trial judge has great discretion in admitting expert testimony in the form of a conclusion, and the judge's exercise of that discretion will not be reversed on appeal absent a showing of a clear abuse of discretion. Hughes v. Allis-Chalmers Corp., 96 Mich.App. 175, 292 N.W.2d 514 (1980); Johnson v. City of Detroit, 79 Mich.App. 295, 261 N.W.2d 295 (1977). It is the duty of the party offering the expert to lay a proper foundation for the admission of the expert's testimony. Siirila v. Barrios, 398 Mich. 576, 248 N.W.2d 171 (1976).

Defendant Bard does not question the qualifications of plaintiff's treating physician, Dr. Seigner, to testify as an expert concerning medical matters. Rather, Bard objects to the doctor's opinion testimony only insofar as it pertains to the catheter device itself and the physics and mechanics surrounding the catheter's severance. Two instances of improper expert testimony are alleged by Bard.

The first of these took place when Dr. Seigner was permitted to read to the jury certain written statements he submitted to Bard concerning this incident. In a letter written to the doctor by Bard, he was requested to answer several questions concerning incidents surrounding the severance of the catheter. Dr. Seigner indicated that he understood one of the questions, "Factors other than the device which may have contributed to the adverse experience?", to ask whether there was any negligence associated with the catheter's insertion that would have led to the accident. He responded to this question, "None to my knowledge". Bard argues that the admission of Dr. Seigner's written response to this question constituted opinion evidence lacking a proper foundation. We disagree.

Dr. Seigner was plaintiff's treating physician and was involved in the search for the catheter after it was severed. His opinion in this instance was linked to his own area of expertise in that it expressed his belief that there was no negligence surrounding the insertion of the catheter. While it is undisputed that some of his knowledge of the facts surrounding the catheter's insertion was obtained from defendant Hoose, MRE 703 permits an expert's opinion to be based upon facts or data perceived by or made known to him at or before the hearing. Dr. Seigner properly interpreted the thrust of the question in defendant Bard's letter as seeking information regarding medical factors which may have been involved in the accident. Dr. Seigner's uncontroverted expertise and special knowledge concerning plaintiff's medical treatment qualified him to give an opinion on this question.

The second incident in which defendant Bard claims that improper expert opinion testimony was given by Dr. Seigner concerned the physician's opinion that the bent catheter needle used on plaintiff was the cause of the catheter's severance. It was also the opinion of Dr. Seigner that if the needle had not been bent the incident would not have occurred.

Whether or not a bent tip on a catheter needle could cause a catheter to sever is a question which more clearly falls within the physics and mechanics of the device itself. Dr. Seigner testified that he was familiar with how catheters are inserted and that he had been trained in their use. While he admittedly conducted no tests...