MARLENE KONWAY V MARY C JORDAN
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STATE OF MICHIGAN
COURT OF APPEALS
MARLENE KONWAY and ROBERT KONWAY,
UNPUBLISHED
March 1, 2002
Plaintiffs-Appellants,
v
No. 224151
Wayne Circuit Court
LC No. 97-721327-NH
MARY C. JORDAN, D.O., and SISTERS OF
BON SECOURS HOSPITAL,
Defendants-Appellees.
Before: O’Connell, P.J., and White and Cooper, JJ.
PER CURIAM.
Plaintiffs appeal as of right the judgment of no cause of action entered following an
eight-day jury trial in this medical malpractice action. We affirm.
Marlene Konway (plaintiff)1 had an emergency Cesarean section (C-section) at defendant
hospital, performed by defendant Dr. Mary Jordan, D.O. (defendant). Plaintiff’s theory of the
case, presented through three expert witnesses, was that Dr. Jordan negligently performed the
post-delivery closure of plaintiff’s uterus by a) stitching the posterior portion of the uterus to the
two anterior edges of the delivery incision, or b) sewing one anterior portion of the incision to
the posterior uterine wall, and that as a result (of either), plaintiff’s uterine walls adhered
together. There is no dispute that plaintiff developed Asherman’s Syndrome, defined basically
as traumatic amenorrhea, meaning no menstruation due to injury and closure of the neck of the
womb. There is no dispute that plaintiff’s case of Asherman’s was severe, and that as a result
she ceased menstruating and is unable to bear more children.
Both parties’ experts testified that Asherman’s Syndrome is very uncommon, and
involves intrauterine scarring/adhesions of traumatic origin. The experts agreed that Asherman’s
syndrome can be from mild to severe, and that in some moderate cases, women continue
menstruating. The experts agreed on little else, and trial was, indeed, a battle of the experts.
Plaintiff’s experts testified that they had never seen or heard of a patient developing
Asherman’s syndrome simply from having a C-section alone, and maintained that Asherman’s
1
Plaintiff Robert Konway claims loss of consortium.
-1-
usually arises from vigorous post-partum or post-abortal curettage, meaning the scraping of the
lining of the uterus. Plaintiff maintained that no such vigorous curettage occurred in this case.
Plaintiff maintained that in the absence of trauma to the uterus, Asherman’s is only known in
cases involving tuberculosis of the uterus, which plaintiff did not have.
Defendant’s theory of the case was that Dr. Jordan was not negligent, and that plaintiff’s
development of Asherman’s Syndrome resulted from the trauma of the C-section itself, in
combination with chorioamnionitis, a sub-clinical infection2 of the chorion and amnion (parts of
the placenta), that was first noted in the placenta pathology report.
Plaintiff’s experts, all of whom were board-certified in obstetrics and gynecology,
testified that the type of sub-clinical infection plaintiff had was extremely common and minor,
that development of Asherman’s Syndrome under such circumstances was not a complication
that would occur in the course of an ordinary C-section, and that the incision made is not the
kind of trauma capable of causing Asherman’s, even in the presence of subclinical infection.
Plaintiff’s experts, Drs. Michael Berke, Ronald Zack and Bernard Nathanson, testified
that two objective factors demonstrated, in the absence of other trauma or instrumentation, that
defendant Jordan had improperly sewn the anterior and posterior walls of plaintiff’s uterus
together: first, during the days following plaintiff’s delivery she had scant bleeding or lochia,
which is uncommon and consistent with one segment of the uterine incision being left open.
Bleeding normally persists for two to four weeks after such a delivery, initially being heavy and
decreasing with passing weeks. Second, three weeks after delivery (on May 31, 1995) plaintiff
passed a large piece of necrotic tissue vaginally, measuring 5 ¼” x 1 ¼” x ½”, which was sent
for pathological examination. The pathology report revealed that it contained suture material and
inflammatory cells. Plaintiff maintained that that was highly abnormal, that the size of the tissue
passed was consistent with the incision size, and that the fact that it contained suture material
was highly significant and consistent with improper uterine suturing.
Defendants’ experts, also board-certified, maintained that there was no evidence that
defendant Jordan had improperly closed the uterus as plaintiff argued, and that sewing uterine
walls together would be difficult to achieve even if a surgeon attempted to do so. Defendants
maintained that plaintiff’s lochia was within normal limits, and that the tissue plaintiff passed on
May 31, 1995 was shedding of the uterine lining and not consistent with the incision size.
The jury concluded that defendant was not negligent and did not reach the proximate
cause issue.
I
Plaintiff argues that the trial court clearly erred in denying plaintiff’s counsel the
opportunity to cross-examine defendant Jordan regarding material facts and issues. Plaintiff
called Dr. Jordan under the adverse witness statute. The trial court cut off plaintiff’s counsel’s
cross-examination of defendant Dr. Jordan after approximately 1 ½ hours, with little notice. The
2
With sub-clinical infections, symptoms, if any, tend to be slight. Clinical infections tend to
have overt signs and symptoms.
-2-
court noted that plaintiff’s counsel had earlier represented to the court that the cross-examination
would take approximately thirty minutes, greatly underestimating the amount of time, and that
the court could properly limit cross-examination, relying on MRE 611. Plaintiff was permitted
to make an offer of proof. Plaintiff’s motion for a mistrial was denied.
“A party’s right to cross-examine adverse witnesses is a basic due process right.” Great
Lakes Div of Nat’l Steel Corp v Ecorse, 227 Mich App 379, 426; 576 NW2d 667 (1998). “So far
as the cross-examination of a witness relates either to facts at issue or relevant facts, it is a matter
of right; but when its object is to ascertain the accuracy or credibility of a witness, its method and
duration are subject to the discretion of the trial judge and, unless abused, its exercise is not the
subject of review.” People v Fleish, 321 Mich 443, 464; 32 NW2d 700 (1948); see also People v
Dellabonda, 265 Mich 486, 502-503; 251 NW 594 (1933), citing 5 Jones, Commentaries on
Evidence (1st ed) § 842.
The adverse witness statute, MCL 600.2161, provides in pertinent part:
In any suit or proceeding in any court in this state, either party, if he shall call as a
witness in his behalf, the opposite party . . . shall have the right to cross-examine
such witness the same as if he were called by the opposite party; and the answers
of such witness shall not interfere with the right of such party to introduce
evidence upon any issue involved in such suit or proceeding, and the party so
calling and examining such witness shall not be bound to accept such answers as
true.
This Court does not disturb a trial court’s determination to deny a motion for mistrial
absent a finding that the court abused its discretion and that a miscarriage of justice resulted.
Wolak v Walczak, 125 Mich App 271, 274; 335 NW2d 908 (1983).
In limiting plaintiff’s cross-examination of defendant Jordan, the trial court relied in part
on MRE 611, which provides in pertinent part:
(a) Control by court. The court shall exercise reasonable control over the mode
and order of interrogating witnesses and presenting evidence so as to (1) make the
interrogation and presentation effective for the ascertainment of the truth, (2)
avoid needless consumption of time, and (3) protect witnesses from harassment or
undue embarrassment.
(b) Scope of cross-examination. 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.
Plaintiff notes that no case permits the arbitrary and abrupt termination of the cross
examination of a party as to relevant, material matters at issue as occurred here. We agree.3
3
The cases defendants rely on, Carlton v St John Hospital, 182 Mich App 166; 451 NW2d 543
(1989), and Martin v Jabe, 747 F Supp 1227 (ED MI, 1989), aff’d without opinion 909 F2d 1483
(continued…)
-3-
Given the significance of the right of cross-examination, that cross-examination of the
principal defendant is at issue, and that defense counsel had not objected to the length of the
cross-examination, we conclude that the trial court abused its discretion in limiting plaintiff’s
cross-examination of defendant Dr. Jordan, even under the circumstance that plaintiff’s counsel
had significantly underestimated how long the cross-examination would take. We have found no
case, nor does defendant cite any, supporting that if an attorney (whether negligently or
(…continued)
(1990), are factually distinguishable. In Carlton, supra at 173-174, this Court concluded that the
trial court did not abuse its discretion by limiting the plaintiff’s cross-examination of the
defendant doctor regarding the operation of the defendant hospital’s intensive care unit, under
the circumstance that plaintiff’s counsel had had opportunity to depose the defendant doctor, but
had not done so. That was clearly not the case in the instant case.
In Martin, supra, Martin had been arrested and charged with having participated with two other
persons in a series of criminal offenses that resulted in the deaths of two persons, and was
convicted of two counts of first degree murder, one count of assault with intent to murder, and
felony-firearm in Recorder’s Court. Martin petitioned for writ of habeas corpus, asserting a
number of claims, including that the trial court abused its discretion by improperly limiting his
pro se cross examination of a Detroit police officer, Everett. The court disagreed, noting:
[Petitioner] Martin submits that the judge, after excusing the jury, admonished
him for submitting “confusing, speculative” questions, and gave him a period of
two minutes in which to complete his cross examination. Martin asserts that
“[g]iven the seriousness and complexity of the facts of the case, and given that
[he] had taken over his own representation to overcome perceived mistakes or
inadequacies of his counsel, the [trial court judge] should have continued to give
[him] leeway.”
Defendant takes issue with Martin, stating that Everett had testified that he, as one
of the first officers to arrive at the scene of the homicide, saw bloodstains on the
stairwells and found the victims in the basement. It is argued by the Defendant
that the admonition was issued by the trial court when Martin’s pro se cross
examination began “to drift aimlessly from unrecalled irrelevancy to irrelevancy .
...“
In Michigan, the trial judges are given the authority to place a limitation upon
cross examinations in order to promote an effective administration of justice.
[footnote here cites MRE 611 and People v Lewis, 25 Mich App 132; 181 NW2d
79 (1970).] Although a trial judge must be prudent not to trammel upon an
individual’s right to test the accuracy of a witness’ testimony through the process
of cross examination, the reviewing court must be equally careful to avoid an
unwarranted interference into the management of a trial in the absence of an
abuse of discretion. There was no abuse of discretion here. Therefore, Martin’s
claim on this issue must be rejected. [747 F Supp at 1231. Emphasis added.]
In the instant case, unlike Martin, there was no claim that plaintiff’s counsel’s cross
examination was drifting aimlessly or was repetitive.
-4-
otherwise) underestimates the amount of time his or her cross-examination of the principal
defendant will take, the trial court may cut off the cross-examination with only five or ten
minutes’ notice to counsel.4
We conclude, however, that reversal is not required under the circumstances that
plaintiff’s counsel had explored the material areas he listed in his offer of proof during his 1 ½
hour cross-examination of defendant,5 and plaintiff’s counsel could have pursued further
questioning on re-cross examination of Dr. Jordan but did not do so.6
4
Notwithstanding this error, we are not convinced by plaintiff’s related judicial bias argument.
Plaintiff has not overcome the heavy presumption of judicial impartiality as required where a
party challenges a judge for bias or prejudice. Cain v Dep’t of Corrections, 451 Mich 470, 497;
548 NW2d 210 (1996).
5
Plaintiff’s counsel stated in his offer of proof that he had not been able to address a number of
areas, including: 1) plaintiff’s infection, the bases for Dr. Jordan’s opinions regarding that
infection, the placenta pathology report, 2) the actual surgery itself, the suturing of the uterus,
and what caused plaintiff’s Asherman’s syndrome, 3) her definition of Asherman’s Syndrome
and of amenorrhea, 4) whether plaintiff’s subsequent treatment should have included another
hysteroscopy, additional ultrasounds, and 5) her medical knowledge, judgment and expertise
based on her representation that she had done 1,000 C-sections.
Before being cut off by the trial court, plaintiff’s counsel questioned Dr. Jordan under the
adverse witness statute regarding her education, number of deliveries and C-sections performed,
training in performing C-sections, her technique in suturing after C-sections, the operative report
regarding plaintiff’s C-section (dictated six weeks after plaintiff’s C-section), antibiotics
administered to plaintiff post-delivery, whether any of the six other persons present in the
operating room for plaintiff’s C-section were qualified to perform a C-section (responding to
defense counsel’s contention in opening statement that no person in the operating room saw
defendant make any mistake), whether defendant advised plaintiff that she could get Asherman’s
Syndrome as a result of a C-section, defendant’s training and knowledge regarding Asherman’s
Syndrome, whether Asherman’s syndrome is most frequently seen where there is curettage after
a C-section, whether there was curettage in plaintiff’s case, whether there were any
complications that could have resulted in plaintiff’s Asherman’s syndrome, defendant’s opinion
that plaintiff had had trauma to the uterus, i.e., the C-section itself, which could lead to
Asherman’s in conjunction with the sub-clinical infection plaintiff had, whether the sub-clinical
infection was severe and could in fact result in Asherman’s syndrome, whether defendant had
changed her mind regarding what caused plaintiff’s Asherman’s since the time of her deposition
(at which she testified that she would have to examine plaintiff to determine the cause, and did
not mention infection as a possible contributing factor), regarding the causes of Asherman’s
Syndrome, plaintiff’s gynecological history, whether anything in plaintiff’s history would have
caused Asherman’s before the C-section, whether defendant called plaintiff and told her she had
Asherman’s syndrome after she learned of the pathology report regarding the necrotic tissue
plaintiff passed on May 31, 1995, defendant’s employment as doctor of the day at defendant
hospital, how defendant was advised of the instant lawsuit, regarding the video shown during
voir dire of defendant performing a C-section, and whether defendant participates in continuing
medical education and attends seminars.
6
Defense counsel’s direct examination of Dr. Jordan covered areas including defendant’s
education and training; the specifics of plaintiff’s C-section; defendant’s customary method of
suturing the uterus; what lochia is, the amount of lochia plaintiff had post-delivery, and whether
(continued…)
-5-
II
Plaintiff contends that the trial court improperly allowed defense counsel to claim at trial
that two of plaintiff’s expert witnesses, Drs. Berke and Zack, one of whom was a subsequent
treater (Zack), were to blame for plaintiff’s condition, rather than defendants.
When reviewing asserted improper comments by an attorney, we first determine
whether the attorney’s action was error and, if it was, whether the error requires
reversal. An attorney’s comments usually will not be cause for reversal unless
they indicate a deliberate course of conduct aimed at preventing a fair and
impartial trial. Reversal is required only where the prejudicial statements of an
attorney reflect a studied purpose to inflame or prejudice a jury or deflect the
jury’s attention from the issues involved. [Hunt v Freeman, 217 Mich App 92,
95; 550 NW2d 817 (1996). Citations omitted.]
Michigan adheres to the rule that the original tortfeasor is liable for all of the injuries,
even those resulting from subsequent malpractice of a physician attending the injured person,
with the qualification that such total recovery from the original tortfeasor is permissible if the
injured person exercised reasonable care in securing the services of a competent physician or
surgeon. See Reed v Detroit, 108 Mich 224; 65 NW 967 (1896); Pohl v Gilbert, 89 Mich App
176, 184-186; 280 NW2d 831 (1979) (chiropractic manipulations subsequent to injury that may
have adversely affected plaintiff’s condition are irrelevant). “A patient may follow a licensed
medical care provider’s advice without risking a reduced award for following such advice.”
Hunt, supra, 217 Mich App at 96 (holding that defense counsel’s argument that plaintiff’s pain
post-injury was attributable to plaintiff’s having followed the advice of her podiatrist, advice that
was contrary to the advice of two orthopedic surgeons, was improper argument that may have
(…continued)
the amount of plaintiff’s lochia was unusual; post-delivery procedure on the uterus, whether
bleeding would have occurred if plaintiff’s uterus had been sewn shut; whether plaintiff’s uterus
had been partially closed (one of plaintiff’s theories) and, if so, whether she would have bled to
death; whether plaintiff’s second theory (sewing the uterine walls together) would be virtually
impossible; that had the uterus been sewn shut plaintiff would not have expelled the piece of
tissue; the process of shrinkage (involution) of the uterus post-delivery; how much experience
defendant had had with Asherman’s at the time plaintiff’s counsel deposed her, that she had
studied a lot about Ahserman’s during the course of this litigation, and that she had learned a
great deal from reading Dr. Valle’s deposition; whether other medical staff in the operating room
during plaintiff’s C-section had witnessed prior C-sections; and the timing of her dictating the
operative report of plaintiff’s C-section and the receipt of the pathology report. Defense counsel
presented a ten-minute video of defendant and another doctor performing a C-section, during
which defendant explained aspects of the procedure, as well.
Plaintiff’s counsel’s recross-examination of Dr. Jordan was brief, occupying ten pages of
transcript. Plaintiff’s counsel questioned Dr. Jordan regarding whether she worked at the same
clinic as plaintiff’s family physician, the tardiness of her dictating plaintiff’s operative report, at
what point post-delivery she saw plaintiff’s medical chart, who performed what tasks on the C
section videotape played for the jury, whether she could identify the origin of the tissue plaintiff
passed on May 31, 1995, and questioned her about models or drawings of the uterus that had
been used by defense counsel.
-6-
denied plaintiff a fair trial, and influenced jury’s determination that plaintiff had been 50%
comparatively negligent).7
Evidence at trial established that plaintiff saw a number of licensed physicians and
specialists after she failed to resume menstruating post-delivery, including her family doctor, Dr.
Parcells, and several specialists Dr. Parcells recommended. Plaintiff treated with Dr. Parcells for
about a year, during which time he prescribed three different hormone treatments. Plaintiff
consulted with specialists thereafter, including Dr. Nehra, who attempted but could not
successfully complete a hysteroscopy due to blockage, and who perforated plaintiff’s uterus in
the process. Plaintiff also consulted Dr. Goldrath, who testified as an expert for the defense, and
she made an appointment with another defense expert, Dr. Valle, in Chicago, which Dr. Valle’s
office cancelled. Plaintiff did not reschedule the appointment.8
7
In Hunt, supra at 95-96, this Court stated:
Plaintiff argues that defense counsel engaged in several improper arguments. We
reverse on the basis of two improper arguments made by defense counsel.
* * * [stating standard of review of improper attorney comments, quoted supra]
Plaintiff testified that her foot was stiff as a result of the accident. During closing
argument, defense counsel argued that this may have been a result of plaintiff’s
using a wrap for her foot in accordance with the podiatrist’s advice, which had
been contrary to the advice of two orthopedic surgeons. Although plaintiff’s
counsel did not object to this argument, we find that it was error requiring
reversal. Defense counsel’s argument invited the jury to reduce plaintiff’s
damages because her injury may have been exacerbated by following the advice
of her podiatrist as opposed to the advice of the two orthopedic surgeons. This
was improper argument that may have denied plaintiff a fair trial. A patient may
follow a licensed medical provider’s advice without risking a reduced award of
damages for following such advice. McAuliff v Gabriel, 34 Mich App 344, 348
349; 191 NW2d 128 (1971). This improper argument may well have influenced
the jury’s determination that plaintiff had been fifty percent comparatively
negligent and may have caused the jury to award only $1,000 a year for future
pain and suffering. Plaintiff is not required to establish affirmative prejudice as a
consequence of this improper argument. Reetz v Kinsman Marine Transit Co, 416
Mich 97, 103, n 8, 107, n 20; 330 NW2d 638 (1982).
8
Plaintiff testified at trial that when she did not resume menstruating after delivery, she saw her
family physician, Dr. Parcells, who over the course of about a year [until about May 1996]
prescribed three different kinds of hormones. When none of them worked, plaintiff asked Dr.
Parcells for a referral to a specialist. Dr. Parcells referred plaintiff to Dr. Nehra, who treated
plaintiff for about 1 ½ years, and performed various tests, including a hysteroscopy, and
diagnosed Asherman’s Syndrome. Dr. Nehra was unsuccessful, i.e., could not penetrate the
uterus, and in the process perforated plaintiff’s uterus. Dr. Nehra told plaintiff that she had very
serious stenosis and that plaintiff “either had been sewn incorrectly or . . . had a low grade fever
(continued…)
-7-
Given the evidence, defense counsel’s remarks and closing argument to the effect that
plaintiff’s experts and subsequent treaters were in some way responsible for not “curing”
plaintiff’s Asherman’s because they did not refer her to other specialists were clearly improper.9
The trial court allowed the remarks as going toward the issue of mitigation of damages, but
defense counsel did not pursue the mitigation of damages issue in closing argument, see n 9, nor
did the evidence support a failure on plaintiff’s part to mitigate damages. Thus, we agree with
plaintiff that there was error.
Nevertheless, we find no basis for reversal. In the instant case, the jury found no
negligence and did not reach the questions of proximate cause and damages. The objectionable
questioning and arguments related to issues of proximate cause and damages, and not the issue
whether defendant doctor was negligent. In other words, the questioning related to the treatment
of plaintiff’s Asherman’s syndrome and her damages, not the cause of the Asherman’s
syndrome. Under these circumstances, we conclude that reversal on this basis is not warranted.
III
Plaintiff also argues that the trial court erred in permitting defendants’ expert Dr.
Davidson to testify, for the first time at trial and in contrast to his deposition testimony, that
plaintiff’s white blood cell count was significantly elevated five days before the delivery, without
imposing sanctions on defendant for its failure to provide discovery in this regard.
We review the trial court’s determination regarding discovery sanctions for abuse of
discretion. Beach v State Farm Mut Auto Ins Co, 216 Mich App 612, 618; 550 NW2d 580
(1996).
(…continued)
in the hospital.” Dr. Nehra wanted plaintiff to see Dr. Valle in Chicago, and plaintiff scheduled
an April 18, 1997 appointment with Dr. Valle. She also asked whether there were specialists in
Michigan she could see. Dr. Valle’s office canceled plaintiff’s appointment in March 1997 and,
after receiving the letter canceling her appointment, plaintiff decided not to reschedule with Dr.
Valle, because her insurance would not have covered Dr. Valle’s services and because of the
travel required. Plaintiff returned to see Dr. Parcells and discussed with him what Dr. Nehra had
done, and she asked Dr. Parcells for a specialist in Michigan she could see. Dr. Parcells
recommended Dr. Goldrath, whom plaintiff saw on July 18, 1997. Plaintiff testified that Dr.
Goldrath performed a pelvic ultrasound, showed her the ultrasound and told plaintiff that he
wanted to “do this procedure of sticking a needle here and seeing if it drains out there and I
wasn’t going to let him,” because it scared her, and her “body had been through so much as it is,
and here he’s talking about a procedure I had never heard of. I just – I was scared.” Plaintiff
testified that Dr. Goldrath “mumbled and talked under his breath. We couldn’t get him to answer
an outright question and I just didn’t trust him.” Plaintiff then returned to Dr. Parcells to get
another referral, and sometime thereafter saw Dr. Zack, who was one of plaintiffs’ experts at
trial.
9
In closing argument, defense counsel argued that the real reason this case was being litigated
was the failure of Drs. Zack, Berke and Nathanson to “open up a textbook” and research
Asherman’s Syndrome, their failure to refer plaintiff to the appropriate physicians for
treatment, and that Dr. Zack knew about Drs. Valle and Goldrath and did nothing.
-8-
Dr. Davidson testified at trial that plaintiff’s white blood cell count was significantly
elevated on May 5, 1995, indicating that the infection was present then, and that she had been put
on a broad spectrum antibiotic (Teflax) from May 7 through 10, when it was thought she may
have had a urinary tract infection, that masked the symptoms of the ongoing infection in her
placenta. Dr. Davidson testified at trial that the elevated white count demonstrated an infection
that was part of the same infectious process manifested in the placenta pathology examination
and report, and that this ongoing infectious process would have caused a bridging of the inflamed
tissue, causing the uterus to close up and seal across the row of stitches without any negligence
on Dr. Jordan’s part, resulting in the formation of scar tissue.
Defendants do not dispute that Dr. Davidson first testified to that effect at trial. It is thus
clear that defendants did not provide full discovery to plaintiff. Plaintiff had requested all
information of this sort in discovery, specifically in various interrogatories dated August 15,
1997, but defendants did not provide this information, notwithstanding MCR 2.302(E), which
imposes a duty to seasonably supplement responses to requests for discovery of this kind.10
The new testimony by Dr. Davidson was potentially prejudicial to plaintiff’s case, in that
the minor nature of the subclinical infection was an important part of plaintiff’s case and
plaintiff’s experts testified that Asherman’s could not result from a properly performed C-section
with a subclinical infection. On the other hand, Dr. Davidson did not change his theory that
there was a subclinical infection that contributed to causing the Asherman’s; rather, he
augmented his opinion by referring to matters in the medical records that he did not previously
identify as significant - -the elevated white blood count and the administration of the antibiotic,
Teflax.
The underlying facts were in plaintiff’s medical records, and plaintiff should not have
been surprised by them. The significance of the facts to Dr. Davidson’s conclusions was the
material that had been omitted in discovery.
Under these circumstances, we conclude that the trial court did not abuse its discretion in
permitting Dr. Davidson to expand upon the reasons for his conclusions. The trial court, in
effect, ruled that plaintiff could challenge his opinion by cross-examination based on his
deposition. Plaintiff’s experts presumably were aware of the earlier blood count and the
administration of antibiotics based on the medical records. Plaintiff could have called an expert
in rebuttal to challenge Dr. Davidson’s testimony that these facts were significant in the
assessment of the significance of the infection. On balance, there was no reversible error.
IV
Plaintiff also argues that in cross-examining Drs. Berke and Zack, defense counsel failed
to establish the necessary foundation to use the alleged contents of textbooks for impeachment
purposes, yet the trial court nonetheless overruled plaintiffs’ counsel’s objections.
10
It is unclear when Dr. Davidson formed the opinion that the earlier infection and antibiotic
treatment provided further support for his position that the C-section together with the
chorioamnionitis caused plaintiff’s Asherman’s.
-9-
MRE 707 provides:
To the extent called to the attention of an expert witness upon cross-examination,
statements contained in published treatises . . . on a subject of . . . medicine . . . ,
established as a reliable authority by the testimony or admission of the witness or
by other expert testimony or by judicial notice, are admissible for impeachment
purposes only. If admitted, the statements may be read into evidence but may not
be received as exhibits.
Assuming that error occurred, we conclude that it was harmless. Both parties’ experts’
testified that Asherman’s syndrome is an uncommon condition, is most commonly caused by
trauma to the uterus such as a D & C, and that a properly performed C-section does not
constitute such trauma. Nearly all the experts testified that they had never seen or heard of a
case like plaintiff’s where a patient developed severe Asherman’s from a C-section. However,
the jury also heard defense expert Dr. Valle’s deposition testimony that he had treated
approximately 400 cases of Asherman’s (more than any other expert witness), and that
Asherman’s occurs in about 2 % of women who have undergone only C-sections, without a D
&C or other invasion.
Thus, regardless of whether the jury surmised that the textbooks did indeed state that a C
section alone could constitute trauma sufficient to result in Asherman’s, the substance of that
testimony was before the jury through Dr. Valle. Since almost all the experts testified that they
had never seen a severe case like plaintiff’s result from a C-section alone, the contest was clearly
between the weight of that testimony and the weight to be accorded Dr. Valle’s testimony in
light of his extensive experience with Asherman’s. It is doubtful that the references to the
supposed learned treatises had any impact on the jury’s decision in this regard.
V
Plaintiff also argues that defendants’ cross-examination of plaintiff’s experts Drs. Berke
and Zack was intended from the outset to harass, insult and belittle them because their testimony
was diametrically opposed to defendants’ experts’ testimony, and the jury’s determination as to
credibility would therefore decide the trial’s outcome. Plaintiff notes that defense counsel
persistently referred to Drs. Berke and Zack as “hired witnesses” earning in excess of one million
dollars over the years in “the hired witness business,” in a consistently disrespectful, belligerent,
harassing and insulting manner, over plaintiff’s counsel’s vehement objections. Plaintiff also
takes issue with certain of defense counsel’s remarks in closing argument.11
11
The challenged remarks were:
[t]here are such things as hired witnesses. There is also such a thing as an expert
witness. And there is a distinction between the two. And the distinction is this.
A hired witness is somebody who you give money and he will take the stand and
he will say something without really knowing what he is talking about or with a
disregard for whether or not it is true.
-10-
When reviewing asserted improper comments by an attorney, we first determine
whether the attorney’s action was error and, if it was, whether the error requires
reversal. An attorney’s comments usually will not be cause for reversal unless
they indicate a deliberate course of conduct aimed at preventing a fair and
impartial trial. Reversal is required only where the prejudicial statements of an
attorney reflect a studied purpose to inflame or prejudice a jury or deflect the
jury’s attention from the issues involved. [Kubisz v Cadillac Gage Textron, Inc,
236 Mich App 629, 638; 601 NW2d 160 (1999), quoting Hunt v Freeman, 217
Mich App 92, 95; 550 NW2d 817 (1996).].
The Supreme Court stated in the medical malpractice case of Wischmeyer v Schanz, 449
Mich 469, 474-475; 536 NW2d 760 (1995):
A broad range of evidence may be elicited on cross-examination for the
purpose of discrediting a witness. The scope and duration of cross-examination is
in the trial court’s sound discretion; we will not reverse absent a clear showing of
abuse. The trial judge is charged with overseeing attacks on an expert’s
credibility and insuring 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 must also be
alert to questions which harass, intimidate or belittle a witness.
[quoting Wilson v Stilwill, 411 Mich 587, 599; 309 NW2d 898
(1981).]
However, when a case turns on the testimony of one expert compared with that of
another, the credibility of each expert is relevant to the disposition of the case.
The credibility of a medical expert, therefore, is relevant to the disposition of a
medical malpractice case and evidence of an expert’s credibility generally is
admissible unless its probative value is substantially outweighed by the danger of
unfair prejudice. [Wischmeyer, supra at 474-475.]
Despite the lack of civility and the innuendo defense counsel included in his cross
examination of plaintiff’s experts, reversal on this basis is not merited, given that this trial was a
battle of the experts, and wide latitude in cross-examination on matters of credibility and bias is
permitted. Wischmeyer, supra. Defense counsel’s remarks in closing argument were
inappropriate. However, because plaintiff did not object, and the remarks were not expressly
addressed to any expert in particular, we conclude reversal is not warranted.
Affirmed.
/s/ Peter D. O’Connell
/s/ Helene N. White
/s/ Jessica R. Cooper
-11-
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