BRAD CARLSON V CLIFFORD WILCOX
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STATE OF MICHIGAN
COURT OF APPEALS
BRAD CARLSON and MARY ELLEN BACON,
UNPUBLISHED
February 22, 2002
Plaintiffs-Appellants,
v
CLIFFORD WILCOX and SANDRA WILCOX,
No. 227899
Lapeer Circuit Court
LC No. 98-025592-NZ
Defendants-Appellees.
Before: Smolenski, P.J., and Doctoroff and Owens, JJ.
MEMORANDUM.
Plaintiffs appeal as of right the order granting defendants’ motion for summary
disposition after plaintiffs’ expert witness was excluded from testifying. We affirm. This appeal
is being decided without oral argument pursuant to MCR 7.214(E).
Plaintiffs brought this action for fraud based on allegations that defendants failed to
disclose known defects in a house defendants sold to plaintiffs. Defendants filed their witness
list in April 1999, and plaintiffs filed their list in June 1999. One week before trial was
scheduled to begin, plaintiffs filed an amended witness list adding an expert witness. The trial
court granted defendants’ motion in limine to exclude the witness, and granted summary
disposition where plaintiffs could not establish a prima facie case without an expert witness to
testify as to damages.
Witness lists are an element of discovery. The ultimate objective of discovery is to make
available to all parties all relevant facts that might be admitted into evidence. Grubor
Enterprises, Inc v Kortidis, 201 Mich App 625, 628; 506 NW2d 614 (1993). The purpose of
witness lists is to avoid trial by surprise. Id. This Court will review a trial court’s decision to
exclude undisclosed witnesses for an abuse of discretion. Kalamazoo Oil Co v Boerman, 242
Mich App 75, 90; 618 NW2d 66 (2000).
Where a discovery sanction of barring an expert witness results in the dismissal of a
plaintiff’s action, the sanction should be exercised cautiously. Dean v Tucker, 182 Mich App 27,
32; 451 NW2d 571 (1990). The trial court must give careful consideration to the factors
involved and consider all options in determining a just and proper sanction in the context of the
case. Id.
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The trial court did not abuse its discretion in excluding plaintiffs’ expert witness. The
court found that the late disclosure of the witness would prejudice defendants due to their
inability to depose the witness. Where the case had been pending for a considerable time, the
court did not abuse its discretion by denying an adjournment to allow discovery to be reopened.
Affirmed.
/s/ Michael R. Smolenski
/s/ Martin M. Doctoroff
/s/ Donald S. Owens
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