Pollum v. Borman's, Inc., Docket No. 83296

• Decision Date: 05 May 1986
• Docket Number: Docket No. 83296
• Citation: 385 N.W.2d 724,149 Mich.App. 57
• Court: Court of Appeal of Michigan — District of US
• Parties: Mary Ann POLLUM and Owen Pollum, Plaintiffs-Appellees, v. BORMAN'S, INC., Defendant-Appellant, and Ross Properties, Inc., Defendant.

Page 724

385 N.W.2d 724

149 Mich.App. 57

Mary Ann POLLUM and Owen Pollum, Plaintiffs-Appellees, v. BORMAN'S, INC., Defendant-Appellant, and Ross Properties, Inc., Defendant.

Docket No. 83296.

Court of Appeals of Michigan.

Submitted Nov. 20, 1985.

Decided Feb. 4, 1986.

Released For Publication May 5, 1986.

Law Office of Samuel I. Bernstein by Michael L. Battersby, Southfield, for plaintiffs-appellees.

Hibbs, Welsh & MacAlpine, P.C. by Robert F. MacAlpine and Karen Russell, Mt. Clemens, for defendants.

Before WAHLS, P.J., and R.B. BURNS and DODGE ^*, JJ.

PER CURIAM.

Plaintiffs, Mary Ann and Owen Pollum, filed a complaint in the Wayne County Circuit Court alleging that defendants, Borman's, Inc., and Ross Properties, Inc., had caused personal injuries to Mary Ann Pollum and loss of consortium to Owen Pollum. The defendants admitted full liability for Mary Ann Pollum's injuries and the jury trial addressed only the issue of damages. The jury awarded $55,000 to Mary Ann Pollum and $2,500 to Owen Pollum. Pursuant to this jury verdict, the trial judge entered a judgment against defendants in the amount of $57,500 (plus $17,387 interest and costs). Borman's, Inc., appealed.

The only issue on appeal is whether the trial judge abused her discretion in allowing an unlisted expert witness to testify without a showing of good cause for the omission of the witness from the witness list.

Dr. Donald L. Newman was not listed as a witness. His testimony constituted the majority of the evidence on damages in the case.

Dr. Newman used a complex procedure called thermography to identify the areas where plaintiff suffered from chronic pain. Thermography is used as a safe procedure in evaluating painful conditions. Thermographs are heat pictures of the body surface of a patient. They are analogous to satellite weather maps used on T.V. The thermograph photos assign different colors to different ranges of heat on the body surface. Dr. Newman compares these colored heat photographs for symmetrical parts of the body (e.g., right and left hand or arm). Differences in temperature between these symmetrical body parts, revealed in the thermograph, allow Dr. Newman to diagnose the location of painful conditions. The thermograph process is currently used as a diagnostic tool in several major teaching institutions, including Wayne State University at the Harper Grace Hospitals and the University of Michigan at the Uphohn Pain Clinic.

Dr. Newman performed a thermographic evaluation of the plaintiff on January 13, 1984. Based on his training in thermography, and the thermographic photos of the plaintiff, Dr. Newman concluded that plaintiff suffered painful conditions in the left elbow and the right ankle. These were the body areas affected by the fall on defendant's sidewalk on September 30, 1981. Dr. Newman went on to conclude that the pain he diagnosed in the plaintiff's joints was the result of traumatic arthritis. Traumatic arthritis is a permanent condition which will continue to afflict the plaintiff in varying degrees, depending on how much she uses the joints.

Plaintiff's counsel relied on Dr. Newman's testimony on thermography in his closing argument and based his claim for future damages of $262,000 on Dr. Newman's diagnosis. Defense counsel spent a significant amount of time in closing argument attempting to discredit Dr. Newman's testimony.

Per GCR 1963, 301.10, which applied to Wayne County Circuit Court at the time of this trial and during pretrial procedures, no witness may be called at the trial unless listed in a prior exchange of witnesses, except by leave granted upon a showing of good cause.

On March 8, 1983, plaintiffs filed their witness list. On November 22, 1983, and July 10, 1984, plaintiffs filed amended witness lists. These lists included six doctors. Dr. Donald L. Newman was not listed.

On July 25, 1984, the defendants filed and served supplemental interrogatories concerning the testimony of four doctors on plaintiffs' amended witness list. The interrogatories were addressed to ascertaining the expected testimony of these witnesses. The plaintiffs answered these interrogatories on October 1, 1984. Plaintiffs' answers indicated that none of the four doctors listed as witnesses had examined plaintiff or prepared a report on her condition. The answers failed to indicate that Dr. Donald Newman had examined and prepared a report on plaintiff's condition as of January 13, 1984.

Based on these answers to their interrogatories, the defendants decided not to have the plaintiff examined by their own expert. They decided expert testimony on the issue of future damages (specifically the traumatic arthritis alleged in the plaintiffs' complaint) was not necessary. This conclusion was especially supported by the deposition testimony of Dr. Palmer, which was favorable to defendants on the issue of traumatic arthritis. However, the parties in this case subsequently went through a mediation process. In making their claim to the mediator, plaintiffs, on November 19, 1984, served a Mediation Summary on the defendants. This summary included Dr. Donald Newman's report on his examination of the plaintiff.

The trial in this case was begun January 7, 1985. The first witness called by plaintiffs was Dr. Donald Newman. Before Dr. Newman took the witness stand, defendants' counsel objected to the court that he had been unaware of plaintiffs' use of...