CHRISTOPHER J DILIBERTI V DR. CRAIG ESSEX
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STATE OF MICHIGAN
COURT OF APPEALS
CHRISTOPHER DILIBERTI and SUSAN
DILIBERTI,
UNPUBLISHED
September 15, 1998
Plaintiffs-Appellants,
v
DR. CRAIG ESSEX, D.O. and ST. JOSEPH
HOSPITAL CENTERS, an assumed name of
MERCY MOUNT CLEMENS CORPORATION,
No. 190260
Macomb Circuit Court
LC No. 92-003807 NH
Defendants-Appellees.
Before: Griffin, P.J., and Gribbs and Talbot, JJ.
PER CURIAM.
Plaintiffs appeal as of right from an order of judgment in favor of defendants after a jury
rendered a verdict of no cause of action in this medical malpractice action. Plaintiffs also contest the
trial court’s denial of their motion for judgment notwithstanding the verdict or a new trial. We reverse.
I.
Although we reverse the trial court on the basis of plaintiffs’ second allegation of error, we will
address plaintiffs’ first issue because it presents a question that is likely to appear again if there is
another trial in this matter. On appeal, plaintiffs first argue that the trial court erred in striking portions of
the de bene esse deposition testimony provided by three of plaintiffs’ expert witnesses. We disagree.
Defendants objected to the admission of the challenged deposition testimony on grounds of relevance,
form, and foundation. In each case, the trial court excluded the evidence without articulating the specific
basis for its decision. The decision to admit or exclude expert testimony is within the sound discretion of
the trial court and will not be reversed on appeal absent a clear abuse of discretion. Berryman v K
Mart Corp, 193 Mich App 88, 98; 483 NW2d 642 (1992). An abuse of discretion will be found only
if an unprejudiced person, considering the facts on which the trial court acted, would say that there was
no justification or excuse for the ruling made. Id.
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In this case, the trial court did not abuse its discretion with respect to any of the stricken
testimony, because the evidence at issue was irrelevant and without foundation. In a medical
malpractice action, an expert witness is usually required to establish the applicable standard of care,
Locke v Pachtman, 446 Mich 216, 224; 521 NW2d 786 (1994), and the party offering the expert
testimony must demonstrate the witness’ knowledge of the applicable standard of care, Turbin v
Graesser (On Remand), 214 Mich App 215, 217; 542 NW2d 607 (1995). The relevant standard of
care is based on how other physicians in defendant’s field of medicine would act, rather than on how
any particular physician would act. Carbonell v Bluhm, 114 Mich App 216, 224; 318 NW2d 659
(1982). Accordingly, an experts use of the pronoun “I” in testifying to the applicable standard of care is
improper. Id. Here, the stricken portions of the testimony of both Drs. Chudler and Schwartz were
properly excluded because they merely addressed how those physicians, personally, would have treated
Christopher Diliberti’s condition. See id. at 224-225.
Likewise, the stricken portions of Dr. O’Donnell’s testimony were properly excluded, because
plaintiffs failed to establish that O’Donnell—a pharmacologist who was not a physician authorized to
prescribe drugs—was knowledgeable of the standard of care applicable to defendants prescribing the
drug in question. See MRE 702; cf. Haisenleder v Reeder, 114 Mich App 258, 264; 318 NW2d 634
(1982) (explaining that a member of one medical school of thought may only testify regarding the
standard of care applicable to members of another medical school of thought if he is familiar with the
applicable standards of care). Although plaintiffs were able to establish O’Donnell’s expert knowledge
of the effects of the drug, they failed to establish his expert knowledge of the medical circumstances
under which the drug would properly be prescribed. For these reasons, we conclude that the trial court
did not abuse its discretion in excluding the challenged evidence.
II.
Plaintiffs next argue that the trial court abused its discretion in failing to grant their motion for a
new trial on the ground that defense counsel improperly cross-examined one of plaintiffs’ expert
witnesses, Dr. Emanuel Tanay.1 Pursuant to MCR 2.611(A)(1)(a), a new trial may be granted on the
basis of an irregularity in the proceedings which materially affected the substantial rights of all or some of
the parties. Elazier v Detroit Non-profit Housing Corp, 158 Mich App 247, 249; 404 NW2d 233
(1987). We review a trial court’s decision on a motion for new trial for an abuse of discretion.
Setterington v Pontiac General Hospital, 223 Mich App 594, 608; 568 NW2d 93 (1997). Plaintiffs
properly preserved this issue for appeal by promptly objecting to the alleged improper cross
examination at trial, see MRE 103(a)(1), and by including this allegation of error in their motion for new
trial.
A.
First, plaintiffs contend that defense counsel improperly attacked Tanay for his representation of
criminal defendants in competency hearings and determinations with respect to insanity defenses. We
disagree. MRE 611(b) provides:
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A witness may be cross-examined on any matter relevant to any issue in the
case, including credibility. The judge may limit cross-examination with respect to
matters not testified to on direct examination.
The scope and duration of cross-examination rests within the sound discretion of the trial court, and the
trial court’s exercise of this discretion will not be reversed absent a clear showing of abuse. Wilson v
Stilwill, 411 Mich 587, 599; 309 NW2d 898 (1981). Here, we conclude that the trial court did not
abuse its discretion. The evidence regarding Tanay’s qualifications and prior work experience, including
his work as an expert witness on behalf of criminal defendants, was (1) relevant to his credibility as an
expert witness in this case, and (2) did not serve to unfairly embarrass or harass the witness. See
Wilson, supra at 599-601; Williams v Fiedlar, 22 Mich App 179, 186-187; 177 NW2d 461 (1970),
aff’d 386 Mich 221; 191 NW2d 52 (1971).
B.
Plaintiffs also contend that defense counsel engaged in an improper attack on Tanay with
respect to his experience in the case of People v McPeters, 181 Mich App 145; 448 NW2d 770
(1989). We agree. On cross-examination, Tanay denied that he had ever refused to testify as an
expert witness for a fee set by a trial court. Thereafter, defense counsel sought to question Tanay about
his experience in McPeters.2 Plaintiffs’ counsel objected to cross-examination on the subject, arguing
that it was not relevant to Tanay’s truthfulness or credibility as an expert in this case, and that it was
unfairly prejudicial because it would only serve to embarrass the witness. The trial court overruled
plaintiffs’ objection, explaining that defense counsel could ask Tanay certain questions about McPeters,
not for the purpose of assailing Tanay’s character,3 but for the purpose of impeaching him with prior
inconsistent statements under MRE 613.
The trial court’s rationale for its ruling was flawed in two respects. First, MRE 613 does not
specifically establish the admissibility of prior inconsistent statements. Instead, it merely establishes the
foundational procedure by which such statements, if admissible, must be introduced. MRE 613; see
also People v Lyles, 148 Mich App 583, 589-590; 385 NW2d 676 (1986). Second, the greater part
of defense counsel’s cross-examination of Tanay regarding McPeters consisted of specific questions
regarding the details of a prior event, rather than any inquiry into prior statements made by Tanay.
Therefore, MRE 613 was, for the most part, wholly inapplicable. The lone prior statement regarding
McPeters brought to Tanay’s attention was his statement from the McPeters trial that he did not intend
to listen to audio tapes offered to refresh his recollection. However, that statement was not
“inconsistent” with his assertion that he never refused to testify as an expert witness for a fee set by a
trial court. See People v Johnson, 113 Mich App 575, 579; 317 NW2d 689 (1982) (“As a general
rule, the only contradictory evidence that is admissible is that which directly tends to disprove the exact
testimony of the witness.”).
As noted above, a witness may be cross-examined on any matter that is relevant to an issue in
the case, including credibility. MRE 611(b). The trial court is responsible for exercising reasonable
control over the mode and order of interrogating witnesses so as to protect them from harassment and
undue embarrassment. See MRE 611(a); In re Hensely, 220 Mich App 331, 333; 560 NW2d 642
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(1996). Thus, the trial court “must be alert to questions which harass, intimidate or belittle a witness.”
Wilson, supra at 599. In this case, defense counsel’s questions regarding McPeters suggested to the
jury that Tanay had intentionally refused to recall or attempt to recall the pertinent facts of a criminal
defendant’s case after the defendant’s lawyer failed to secure his requested fee. While these questions
certainly tended to harass, intimidate and belittle Tanay, his answers to them were not—and could not
have been—of any probative value. The question whether Tanay ever refused to testify as an expert
witness for a particular fee in another case was simply not relevant to his credibility in this case. This is
so because no resolution of that question would have any tendency to make Tanay’s truthful testimony
as an expert witness in this case any more or less probable. MRE 401.
Accordingly, the trial court abused its discretion when it allowed defense counsel to ask
harassing and irrelevant questions regarding the McPeters incident. MRE 611(b); see also MRE
608(b); Heshelman v Lombardi, 183 Mich 72, 84-85; 454 NW2d 603 (1990). Because a likely
effect of the trial court’s error was to unfairly diminish the jury’s perception of Tanay, who was
plaintiffs’ only expert witness permitted to testify regarding applicable standard of care, we cannot say
that the error was harmless. Therefore, we hold that the trial court abused its discretion when it denied
plaintiffs’ motion for a new trial. MCR 2.611(A)(1)(a); Elazier, supra at 249.
III.
Finally, plaintiffs argue that the trial court abused its discretion in failing to elicit sufficient facts
during voir dire. Given our disposition of this case, and plaintiffs failure to preserve this issue for appeal
with an objection below,4 we need not address this issue.
Reversed.
/s/ Roman S. Gribbs
/s/ Michael J. Talbot
1
Plaintiffs also suggest that the trial court erred in denying their motion for judgment notwithstanding the
verdict on the same ground. A motion for judgment notwithstanding the verdict should be granted only
when there was insufficient evidence to create an issue for the jury. Pontiac School District v Miller,
Canfield, Paddock, and Stone, 221 Mich App 602, 612; 563 NW2d 693 (1997). Because plaintiffs
do not argue that the evidence was insufficient to create an issue for the jury, we will not review the trial
court’s decision with respect to plaintiffs’ motion for judgment notwithstanding the verdict.
2
In McPeters, supra at 148-152, Tanay was subpoenaed to testify at trial for a fee set by the trial
court. When he appeared at trial, he allegedly claimed to have had no recollection of the case and
refused to listen to an audio tape played to refresh his recollection.
3
Defense counsel explained that he was not seeking to raise the McPeters incident in an effort assail
Tanay’s character for truthfulness under MRE 608(b), but rather in an attempt to directly impeach
Tanay’s explicit denial that he refused to testify as an expert witness for a fee set by a trial court. MRE
608(b) provides that a trial court, in its discretion, may allow inquiry on cross-examination into specific
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instances of conduct involving a witness, if such inquiry is probative of the witness’ character for
truthfulness or untruthfulness. See Heshelman v Lombardi, 183 Mich 72, 84-85; 454 NW2d 603
(1990).
4
Plaintiffs’ assertion in their brief on appeal that trial counsel preserved the issue by requested specific
voir dire questions regarding the subject matter in controversy is without citation to the record.
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