PATRICIA DIVELY V WILLIAM BEAUMONT HOSPITAL
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PATRICIA DIVELY, Personal Representative of
the Estate of MICHAEL DIVELY, Deceased,
UNPUBLISHED
June 22, 2004
Plaintiff-Appellant,
V
No. 242288
Oakland Circuit Court
LC No. 1997-547836-NO
WILLIAM BEAUMONT HOSPITAL,
Defendant-Appellee.
Before: Wilder, P.J., and Griffin and Cooper, JJ.
PER CURIAM.
In this premises liability action, plaintiff appeals as of right from a judgment of no cause
of action entered in favor of defendant following a jury trial. We affirm.
On June 21, 1995, plaintiff’s decedent, Michael Dively, was receiving physical therapy at
defendant hospital for rehabilitation after knee surgery. Dively was injured while using the Total
Gym apparatus, which defendant had purchased from Engineering Fitness International, Inc.
(“EFI”). The Total Gym machine was designed so that the user could lay on a glide board and
use a pulley to move the board up and down a rail. The user of the equipment could increase or
decrease the amount of effort required to move the slide board by setting the rail at one of ten
different settings. In particular, the Total Gym apparatus was equipped with a Slide Distance
Regulator (SDR), which consisted of a strap, hook, and buckle, and which attached the glide
board to the base of the equipment with snap hooks. The SDR was a Y-shaped fabric belt with
three J-shaped steel hooks containing spring clips at each end of the Y. As Dively was
performing an exercise on the Total Gym apparatus, the SDR disconnected from the glide board,
causing the board, with Dively on it, to fall to the bottom of the rail. As a result of injuries
sustained in the fall, Dively became totally disabled.
Michael Dively and his wife Patricia subsequently brought a product liability action
against EFI and a premises liability action against defendant. The Divelys’ settled their action
against EFI before the original trial date. Although trial against defendant began in December
2000, a mistrial was declared. Michael Dively thereafter died before a new trial was held. The
matter proceeded to trial against defendant in May 2002, following which, using a special verdict
form, the jury found that defendant was not negligent. Because the jury answered the first
question negatively, it did not consider additional issues concerning alleged fault by a non-party
(EFI) or damages.
-1-
On appeal, plaintiff first argues that the trial court abused its discretion by allowing
defendant to call James Lighthall as its expert liability witness. Plaintiff contends that Lighthall
should not have been allowed to testify because defendant failed to name an expert witness in a
timely fashion, failed to supplement expert witness interrogatories, failed to supplement
discovery requests, failed to disclose its expert’s qualifications or opinions, and withheld its
expert’s work papers. We review the trial court’s decision to allow Lighthall to testify for an
abuse of discretion. Carmack v Macomb Co Community College, 199 Mich App 544, 546; 502
NW2d 746 (1993).
The trial court did not abuse its discretion by allowing Lighthall to testify. In Bass v
Combs, 238 Mich App 16, 26-27; 604 NW2d 727 (1999), this Court, quoting Dean v Tucker, 182
Mich App 27, 32-33; 451 NW2d 571 (1990), set forth the factors to be considered in determining
the appropriate sanction for failing to comply with discovery:
(1) [W]hether the violation was wilful or accidental; (2) the party's history
of refusing to comply with discovery requests (or refusal to disclose witnesses);
(3) the prejudice to the [other party]; (4) actual notice to the [other party] of the
witness and the length of time prior to trial that the [other party] received such
actual notice; (5) whether there exists a history of [the party's] engaging in
deliberate delay; (6) the degree of compliance by the [party] with other provisions
of the court's order; (7) an attempt by the [party] to timely cure the defect, and (8)
whether a lesser sanction would better serve the interests of justice.
Here, the record indicates that when this case first proceeded to trial in November 2000,
Lighthall was identified during voir dire as a witness for the defendant. After that case
concluded in a mistrial, approximately eighteen months passed before the case was retried.
Although plaintiff had notice of Lighthall’s identity as a witness more than a year before trial,
plaintiff raised no objection to Lighthall being called as an expert witness until well after the
second trial had commenced. In denying plaintiff’s motion to strike Lighthall as an expert
witness, the trial court concluded that plaintiff had notice that Lighthall would be proffered as an
expert witness to rebut the testimony of Professor Stein.
There appears to be merit to plaintiff’s contention that defendant ignored its obligation to
supplement expert witness interrogatories, failed to supplement discovery requests, failed to
disclose its expert’s qualifications or opinions, and withheld its expert’s work papers.
Nevertheless, plaintiff took no steps to actively inquire about Lighthall’s qualifications, papers or
opinions, and made no effort to object to defendant’s apparent violation of MCR 2.302(E) before
trial. Under the circumstances, we cannot characterize as an abuse of discretion the trial court’s
decision to allow Lighthall to testify. This conclusion is supported by the decision in State Hwy
Comm v Redmon, 42 Mich App 642; 202 NW2d 527 (1972), wherein this Court held that the
trial court did not err in denying the defendant’s motion to strike the plaintiff’s known expert
witness where the defendant was dilatory in bringing the motion. As in Redmon, plaintiff here
was dilatory by failing to raise her objections to Lighthall before trial.
Plaintiff further argues that the trial court erroneously permitted Lighthall to testify
beyond the scope of his expertise. The qualification of a witness as an expert and the
admissibility of the expert’s testimony are within the trial court's discretion and will not be
reversed on appeal absent an abuse of that discretion. Mulholland v DEC Int'l Corp, 432 Mich
-2-
395, 402; 443 NW2d 340 (1989). Here, Lighthall testified that the field of biomechanics
involves the direct application of the laws of physics to living structures, such as the Total Gym
apparatus, and analyzes the interaction between machines and people. The trial court did not
abuse its discretion in determining that Lighthall was sufficiently qualified to give the testimony
in question. Moreover, it was not necessary for Lighthall to have the same qualifications as Dr.
Stein in order to give expert testimony in this case.
Plaintiff next argues that the trial court erred in denying her motion for a directed verdict
regarding the existence of fault by the non-party manufacturer, EFI. Even if the trial court erred
in denying plaintiff’s motion, however, any such error was harmless because the jury verdict in
favor of defendant was based on the jury’s determination that defendant was not negligent, thus
rendering moot the issue of non-party fault. Jackson v Thompson-McCully Co, 239 Mich App
482, 493; 608 NW2d 531 (2000).
Similarly, even if the trial court abused its discretion when it allowed defendant to use the
de bene esse depositions of EFI’s medical expert witnesses as to the issue of damages, any error
in this regard was harmless because the jury concluded that defendant was not negligent and did
not reach the issue of damages. Colbert v Primary Care Medical, PC, 226 Mich App 99, 103104; 574 NW2d 36 (1997).
Affirmed.
/s/ Kurtis T. Wilder
/s/ Richard Allen Griffin
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
