NORA KALLIEL V PETER YAMIN DDS
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STATE OF MICHIGAN
COURT OF APPEALS
NORA KALLIEL,
UNPUBLISHED
December 11, 2001
Plaintiff-Appellant,
v
UNIVERSITY OF MICHIGAN BOARD OF
REGENTS, d/b/a UNIVERSITY OF MICHIGAN
SCHOOL OF DENTISTRY,
No. 223948
Washtenaw Circuit Court
LC No. 98-017139-CM
Defendant-Appellee.
NORA KALLIEL,
UNPUBLISHED
Plaintiff-Appellant,
v
PETER YAMIN, DDS, and PAUL BYER, DDS,
No. 223949
Washtenaw Circuit Court
LC No. 98-004934
Defendants-Appellees.
Before: Fitzgerald, P.J., and Hoekstra and Markey, JJ.
HOEKSTRA, J., (concurring in part and dissenting in part).
I respectfully dissent from the conclusion of the majority that plaintiff met her burden of
establishing that a genuine issue of material fact existed regarding whether defendants’ conduct
amounted to gross negligence, and consequently, I would affirm.
In response to defendants’ motion for summary disposition pursuant to MCR
2.116(C)(10) on plaintiff’s amended complaint that alleged gross negligence, plaintiff relied on
the affidavit of merit of Peter Norris, M.D., to show that the treatment defendants afforded her
was grossly negligent. Plaintiff filed this affidavit with her original complaint that alleged
ordinary negligence by defendants. When plaintiff amended her complaint to allege gross
negligence, she relied upon this very same affidavit of merit. In the affidavit, Dr. Norris stated
that “it is my opinion that Drs. Byers, Yamin and Tarner failed to exercise that degree of care
and skill ordinarily required by the dental profession in general under like condition and similar
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circumstances . . . .” Because plaintiff’s expert specifically confined his opinion to ordinary
negligence, I believe that the affidavit, on its face, cannot support a claim for gross negligence.
Further, I question the majority’s apparent reliance on the allegations contained in the
amended complaint. As noted in their opinion, MCR 2.116(G)(4) does not permit a party to
merely rely on allegations made in their pleadings. See Maiden v Rozwood, 461 Mich 109, 120121; 597 NW2d 817 (1999).
In all other respects, I join with the majority opinion.
/s/ Joel P. Hoekstra
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