Wilson v. Stilwill

• Decision Date: 01 September 1981
• Docket Number: Docket No. 63782,No. 8,8
• Citation: 309 N.W.2d 898,411 Mich. 587
• Parties: Irving J. WILSON and Margaret D. Wilson, Husband and Wife, Plaintiffs- Appellants, v. George D. STILWILL, M. D. and Edward W. Sparrow Hospital Association, a Michigan Non-Profit Corporation, Defendants-Appellees. Calendar411 Mich. 587, 309 N.W.2d 898
• Court: Michigan Supreme Court

Page 898

309 N.W.2d 898

Irving J. WILSON and Margaret D. Wilson, Husband and Wife, Plaintiffs- Appellants, v. George D. STILWILL, M. D. and Edward W. Sparrow Hospital

Association, a Michigan Non-Profit Corporation,

Defendants-Appellees.

Docket No. 63782.

Calendar No. 8.

411 Mich. 587, 309 N.W.2d 898

Supreme Court of Michigan.

Argued Oct. 8, 1980.

Decided Sept. 1, 1981.

Reid, Reid, Mackay, Emery & DeVine, P.C., Lansing, for plaintiffs-appellants by William L. Mackay, Lansing.

Fraser Trebilcock, Davis & Foster, P.C., Lansing, for defendant-appellee George D. Stilwill, M.D. by Everett R. Trebilcock, Eugene F. Townsend, C. Mark Hoover, Lansing.

Kitch, Suhrheinrich, Smith, Saurbier & Drutchas, P.C., Detroit, for defendant-appellee Edward W. Sparrow Hospital by David L. Moffitt, Detroit.

MOODY, Justice.

Plaintiffs in this medical malpractice case appeal from a jury verdict of no cause of action for the defendant George D. Stilwill, M.D., and a directed verdict for the defendant Edward W. Sparrow Hospital Association. Three issues are raised by the plaintiffs on appeal:

(1) Whether the trial court committed reversible error by permitting the plaintiffs' expert witness to be cross-examined about his involvement in other medical malpractice cases.

(2) Whether the remarks during closing argument by counsel for the defendant doctor indicating that his client did not utilize "professional witnesses" deprived plaintiffs of a fair trial and required a new trial.

(3) Whether the trial court committed reversible error by granting the defendant hospital's motion for a directed verdict.

The Court of Appeals answered these questions in the negative and affirmed the jury verdict and the directed verdict. We agree, although in part for different reasons. Accordingly, we affirm the judgment of the Court of Appeals, 92 Mich.App. 227, 284 N.W.2d 773.

I FACTS

The plaintiff, Irving J. Wilson, experienced some problems and difficulty with his right arm. In November, 1970, he contacted the defendant Dr. Stilwill, an orthopedic surgeon. Dr. Stilwill diagnosed the problem to be the result of a non-union of an old fracture. Dr. Stilwill advised Mr. Wilson that he could perform a compression-plating procedure by which the non-union could be corrected.

Surgery was performed on December 11, 1970, at the defendant Edward W. Sparrow Hospital. Following surgery Mr. Wilson experienced difficulty moving the fingers of his right hand. Signs of infection developed. Five days after the operation culture and sensitivity tests were ordered by Dr. Stilwill. The infection was identified and treated with antibiotics. Following his release from Sparrow Hospital, Mr. Wilson complained of pain, swelling, and a discharge from his arm. Additional tests indicated the presence of different bacteria. Subsequently, a number of additional surgical procedures were performed at the hospital. Mr. Wilson's right arm is now paralyzed.

Mr. and Mrs. Wilson brought this action against Dr. Stilwill and Edward W. Sparrow

Hospital for malpractice. At the close of the plaintiffs' proofs the trial court directed a verdict for the hospital. The jury returned a verdict of no cause of action for the defendant Dr. Stilwill. The trial court denied the plaintiffs' motion for new trial. The Court of Appeals affirmed. 92 Mich.App. 227, 284 N.W.2d 773 (1979). We granted leave to appeal. 408 Mich. 898 (1980).

II CROSS-EXAMINATION

The first issue pertains to a line of questioning on cross-examination directed to the plaintiffs' expert witness, W. O. Badgley, M.D., by counsel for the defendant Dr. Stilwill. Responding to inquiries as to whether he was still actively treating patients, Dr. Badgley testified that 40% of his practice had to do with disability evaluation. He stated: "Sixty percent comes from the care of patients." The doctor explained that attorneys referred patients to him for disability evaluation and reports as to the extent of their injuries. Dr. Badgley confirmed the fact that he gives testimony or his opinions concerning the evaluations. He also testified that he had not been involved in more than two or three cases in which there was alleged malpractice. In two cases the attorney for the plaintiffs was the same attorney representing the plaintiffs in the instant case. When questioned about a third malpractice case, Dr. Badgley stated that he did not recall that case and that he had never testified.

At that point, plaintiffs' counsel objected. The trial court permitted the questioning to continue. Dr. Badgley then recalled that he had been asked his opinion on that case, but that he had nothing to do with the case. After he testified that he had no recollection of two other cases, the plaintiffs' attorney again objected. The objection was sustained. There was no motion to strike any testimony, nor any request for a curative or limiting instruction.

The plaintiffs contend that the trial court erred when it initially overruled the objections of plaintiffs' counsel and that in any event the evidence introduced deprived the plaintiffs of a fair trial. It is the claim of the plaintiffs that the cross-examination of Dr. Badgley was calculated to convey to the jury the innuendo that there was complicity between the expert witness and the plaintiffs' attorney. Plaintiffs urge that this line of questioning was intended to improperly divert the attention of the jury from the issues of malpractice and to focus upon the credibility of the witness in an effort to prejudice the jury.

In response, the defendant doctor asserts that the scope of cross-examination is subject to the trial court's discretion. In this case, defense counsel was attempting to impeach the expert witness by showing that he was involved in more than two or three malpractice cases. Furthermore, the inquiry was also designed, within proper bounds, to elicit testimony indicative of bias or prejudice. Defense counsel sought to establish that Dr. Badgley had previously testified in malpractice suits at the request of plaintiffs' attorney and that the witness had almost always been involved in cases on behalf of a plaintiff. This background information, defendant urges, is appropriate for the jury to evaluate in weighing the import of the expert opinion.

The scope and duration of cross-examination of witnesses rests in the sound discretion of the trial court. The exercise of this discretion will not be reversed absent a clear showing of abuse. See, e. g., People v. Taylor, 386 Mich. 204, 191 N.W.2d 310 (1971). See also Hayes v. Coleman, 338 Mich. 371, 61 N.W.2d 634 (1954) (broad scope of cross-examination to show bias or prejudice). There is "a general canon that on cross-examination the range of evidence that may be elicited for any purpose of discrediting is to be very liberal ". 3A Wigmore, Evidence (Chadbourn Rev.), § 944, p. 778.

The primary issues in most medical malpractice cases are: what is the appropriate standard of care, whether there was a breach of this standard of care and whether the breach was a proximate cause of plaintiff's injuries. Both parties in most cases call upon expert witnesses to testify on The trial judge is charged with the responsibility, in his or her discretion, of permitting and limiting attacks on credibility. He or she must insure that questions seeking to elicit evidence indicating bias, prejudice or interest and inconsistent testimony or statements are not unduly limited or improvidently extended. The trial judge also must be alert to questions which harass, intimidate or belittle a witness.

these issues. In this "battle of experts" credibility is a primary question for consideration by the jury.

The fact that a substantial part of Dr. Badgley's practice involves giving disability evaluations and preparing reports of his findings and conclusions is not an improper subject for general limited inquiry. An expert witness's experience testifying in court may influence the manner in which he or she testifies. The same is true for experience in evaluating cases which may come to court. It is thus proper to bring out on cross-examination the number of times a witness testifies in court, or is involved in particular types of cases. See Rumptz v. Leahey, 26 Mich.App. 438, 182 N.W.2d 614 (1970).

In DeHaan v. Winter, 262 Mich. 192, 247 N.W. 151 (1933), (after remand ) 265 Mich. 101, 251 N.W. 391 (1933), our Court held that permitting cross-examination of an expert witness concerning his interest in the event of suit was not error. DeHaan is a medical malpractice case. The expert medical witness and the defendant doctor belonged to the state medical society. A small portion of the society's dues went to the defense of malpractice suits for members.

"For the purpose of affecting credibility of the witness, he may be cross-examined as to his interest in the event of suit, including contribution to the expense of it." DeHaan, 262 Mich. 195, 247 N.W. 151.

Evidence concerning the fact that Dr. Badgley had testified at the request of the plaintiffs' counsel in other malpractice cases, like the testimony in DeHaan, is a permissible subject of cross-examination for the purpose of affecting credibility. The cross-examination of Dr. Badgley minimally concerned possible bias or prejudice. See Ager v. Baltimore Transit Co., 213 Md. 414, 132 A.2d 469 (1957). A showing of a pattern of testimony for a particular attorney in past cases raises a possible inference that the witness has testified in such a manner that he would be hired in future cases. ¹ See Collins v. Wayne Corp., 621 F.2d 777, 784 (CA 5, 1980). See also Treece v. The Greyhound Bus Co., 63 Mich.App. 63, 66, 234 N.W.2d 404 (1975); Gutowski v. M & R Plastics & Coating, Inc., 60 Mich.App. 499, 505, fn. 2, 231 N.W.2d 456 (1975). In response, additional inquiry would be permissible to show that the witness had been called by many other lawyers on various issues over the years. The jury, in the trial court's...