Rock v. Crocker

• Decision Date: 06 June 2016
• Docket Number: Calendar No. 1.,Docket No. 150719.
• Citation: 499 Mich. 247,884 N.W.2d 227
• Parties: ROCK v. CROCKER.
• Court: Michigan Supreme Court

499 Mich. 247

884 N.W.2d 227

ROCK

v.CROCKER.

Docket No. 150719.

Calendar No. 1.

Supreme Court of Michigan.

Argued Jan. 13, 2016.

Decided June 6, 2016.

Mark Granzotto, P.C., Royal Oak (by Mark Granzotto), and Dib & Fagan, P.C. (by Albert J. Dib ), for Dustin Rock.

Collins Einhorn Farrell PC (by Noreen L. Slank, Southfield and Michael J. Cook, Troy) and Aardema Whitelaw, PLLC, Grand Rapids (by Brian W. Whitelaw ), for K. Thomas Crocker and K. Thomas Crocker, D.O., PC.

Foster, Swift, Collins, and Smith, P.C., Lansing (by Richard C. Kraus ), for the University of Michigan Board of Regents.

Kerr, Russell and Weber, PLC, Detroit (by Daniel J. Schulte and Joanne Geha Swanson ), for the Michigan State Medical Society.

BERNSTEIN, J.

This is a medical malpractice case involving (1) the admissibility of allegations of breaches of the standard of care that did not cause the plaintiff's injury and (2) the time at which a standard-of-care expert witness must meet the board-certification requirement in MCL 600.2169(1)(a). First, we vacate that portion of the Court of Appeals' judgment ruling on the admissibility of the allegations in this case and remand for the circuit court to determine whether the disputed evidence is admissible under MRE 404(b). Second, we affirm the Court of Appeals' conclusion that a proposed expert's board-certification qualification is based on the expert's board-certification status at the time of the alleged malpractice rather than at the time of the testimony.

I. FACTS AND PROCEDURAL HISTORY

In September 2008 plaintiff, Dustin Rock, fractured his right ankle while changing the brake pads on a truck. Defendant K. Thomas Crocker, D.O.,¹ a board-certified orthopedic surgeon, conducted surgery and provided postsurgical care. In October 2008, defendant allegedly told plaintiff that he could start bearing weight on his leg, though plaintiff did not start doing so at the time. In November 2008, another doctor, Dr. David Viviano,² performed a second surgery on plaintiff's ankle, purportedly because the surgery performed by defendant had failed to unite all the pieces of the fracture. At the time of the surgery performed by defendant, Viviano was a board-certified orthopedic surgeon.

In June 2010, plaintiff filed this lawsuit, alleging that defendant had committed 10 specific negligent acts during the first surgery and over the course of postsurgical care. Plaintiff asserted that he suffered additional medical expenses, as well as loss of earnings and earning capacity, because of defendant's negligence. Along with the complaint, plaintiff filed an affidavit of merit from Dr. Antoni Goral, a board-certified orthopedic surgeon who opined that defendant had breached the standard of care by (1) not using enough screws or the proper length plate for the fracture during the surgery³ and (2) prematurely allowing plaintiff to put weight on his leg after the surgery. However, Goral later admitted in a November 2011 deposition that the length and the placement of the plate and the number of screws used did not cause any injury to plaintiff because the bone had healed correctly. Goral also admitted that telling plaintiff his leg could bear weight did not cause plaintiff's injuries.

As a result of these admissions, defendant moved in limine to strike these two allegations and preclude plaintiff from presenting any evidence at trial regarding these alleged breaches of the standard of care. In response, plaintiff acknowledged that Goral's statements failed to establish proximate causation, but argued that the evidence was relevant to defendant's expertise and competency to perform the surgery. The trial court agreed with plaintiff and denied defendant's motion. The trial court concluded that the evidence was part of the res gestae of the claim and was relevant to the issue of defendant's general competency. The trial court also concluded that the prejudice posed by this evidence did not substantially outweigh its probative value under MRE 403.

During pretrial proceedings, plaintiff also identified Viviano as a standard-of-care expert. Although Viviano had been board-certified at the time of the alleged malpractice in September and October 2008, his certification expired in December 2011. In September 2012, defendant moved to exclude any standard-of-care testimony by Viviano because his board certification had expired before he testified and had not been renewed. The trial court granted defendant's motion, concluding that MCL 600.2169(1)(a) was “clear on its face” that “the expert witness must ‘be’ a specialist who ‘is' board certified in that specialty.” Rock v. Crocker, unpublished opinion and order of the Kent Circuit Court, issued September 27, 2012 (Case No. 10–06307–NM), p. 3. Because Viviano's certification had since lapsed, the trial court concluded that he was not qualified to testify about the applicable standard of care. Id.

Plaintiff sought interlocutory leave to appeal, challenging the trial court's ruling that barred Viviano from testifying. The Court of Appeals granted leave, and defendant cross-appealed. Relevant to the issues before us, defendant challenged the trial court's order denying defendant's motion in limine to strike the two allegations of malpractice that Goral testified had not caused plaintiff's injury.

In a published opinion, the Court of Appeals affirmed in part, reversed in part, and remanded for further proceedings. Rock v. Crocker, 308 Mich.App. 155, 863 N.W.2d 361 (2014). The Court noted that defendant's motion to strike the allegations actually comprised two separate motions: (1) a partial summary disposition motion, because plaintiff may not seek damages for the two alleged breaches that did not cause the injury, and (2) a motion to exclude all evidence regarding the two allegations. Id. at 170, 863 N.W.2d 361. The Court agreed with defendant that plaintiff may not seek damages for those allegations. Id. Nonetheless, the Court of Appeals agreed with the trial court that the evidence underlying those allegations could be admitted at trial because it “may be relevant to the jury's understanding of the case.” Id. However, given the finding that plaintiff could not seek damages for those alleged violations and the potential effect of that ruling on the MRE 403 analysis, the Court of Appeals remanded the case for reconsideration of the admissibility of the evidence.⁴ Id. With regard to the expert's qualifications, the Court reversed the trial court's ruling that Viviano could not testify as an expert.

We granted leave to appeal and directed the parties to brief

(1) whether the lower courts erred in concluding that allegations relating to violations of the standard of care that the plaintiff's expert admitted did not cause the plaintiff's injury were admissible as evidence of negligence; and (2) whether the Court of Appeals erred in holding that, if the defendant is a board-certified specialist, MCL 600.2169(1)(a) only requires an expert to be board certified in that same specialty at the time of the malpractice, and not at the time of trial. [Rock v. Crocker, 497 Mich. 1034, 863 N.W.2d 330 (2015).]

II. ADMISSIBILITY OF THE EVIDENCE

Defendant contends that evidence of alleged breaches of the standard of care that did not cause plaintiff's injury is inadmissible. The admission of evidence is reviewed for an abuse of discretion. Craig v. Oakwood Hosp., 471 Mich. 67, 76, 684 N.W.2d 296 (2004). A trial court does not abuse its discretion when its decision falls within the range of principled outcomes. Maldonado v. Ford Motor Co., 476 Mich. 372, 388, 719 N.W.2d 809 (2006). “A court necessarily abuses its discretion when it ‘admits evidence that is inadmissible as a matter of law.’ ” Craig, 471 Mich. at 76, 684 N.W.2d 296 (citation omitted).

In a medical malpractice case, the plaintiff bears the burden of proving (1) the applicable standard of care, (2) a breach of that standard by the defendant, (3) an injury, and (4) proximate causation between the alleged breach of duty and the injury. Wischmeyer v. Schanz, 449 Mich. 469, 484, 536 N.W.2d 760 (1995). MCL 600.2912a(2) specifically provides that “the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants.” Therefore, drawing a causal connection between a defendant's breach of the applicable standard of care and a plaintiff's injuries is critical. See Craig, 471 Mich. at 86, 684 N.W.2d 296.

With a general understanding of plaintiff's burden of proof, we turn to the Michigan Rules of Evidence to assess the admissibility of Goral's testimony regarding the two breaches of the standard of care that did not cause the injury for which plaintiff now seeks compensation. To be admissible, evidence must be relevant. MRE 402. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401. The relevance contemplated in MRE 401 and MRE 402 is logical relevance. People v. VanderVliet, 444 Mich. 52, 60, 508 N.W.2d 114 (1993).⁵ Even if logically relevant under MRE 401 and MRE 402, evidence may still be excluded under MRE 404 because MRE 404 “is a rule of legal relevance, defined as a rule limiting the use of evidence that is logically relevant.” Id. at 61–62, 508 N.W.2d 114. Legal relevance, as a limiting rule, concerns the purpose for which evidence is used.⁶ In particular, MRE 404(b)(1) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs,

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