ARLIS MARIE BISHOP V MICHIGAN AFFILIATED HEALTH CA
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
ARLIS MARIE BISHOP, Personal Representative of
the Estate of CLAUDE WAYNE BISHOP, Deceased,
UNPUBLISHED
March 3, 1998
Plaintiff-Appellant,
v
MICHIGAN AFFILIATED HEALTH CARE
SYSTEM, INC. d/b/a LANSING GENERAL
HOSPITAL, LANSING ORTHOPEDIC, P.C., and
KENTON L. WATERBROOK, D.O.,
Defendants-Appellees.
No. 204074
Ingham Circuit Court
LC No. 93-075763-NH
ON REMAND
Before: Jansen, P.J., and Doctoroff and Gage, JJ.
PER CURIAM.
This case is on remand from the Supreme Court for plenary consideration of the issue raised in
plaintiff’s appeal of right. 454 Mich 910 (1997). In this medical malpractice action, the trial court
granted defendants’ motions to disqualify plaintiff’s expert witness and denied plaintiff’s oral motion to
amend her witness list to add a new expert witness. The trial court later granted defendants’ motions
for summary disposition, in part, on the ground that plaintiff could not support her case by expert
testimony. Plaintiff appeals as of right from the trial court’s denial of her motion to amend her witness
list. We reverse and remand.
The decision whether to allow a party to add an expert witness is within the discretion of the
trial court. Tisbury v Armstrong, 194 Mich App 19, 20; 486 NW2d 51 (1991). However, our legal
system favors disposition of litigation on the merits. Vicencio v Ramirez, 211 Mich App 501, 507;
536 NW2d 280 (1995). Where the sanction of barring an expert witness results in the dismissal of
plaintiff’s action, the sanction should be exercised cautiously. Dean v Tucker, 182 Mich App 27, 32;
451 NW2d 571 (1990). In Dean, supra, pp 32-33, this Court enumerated some of the factors that
should be considered in determining the appropriate sanction: (1) whether the violation was willful or
accidental; (2) the party’s history of refusing to comply with discovery requests or refusal to disclose
witnesses; (3) the prejudice to defendants; (4) actual notice to defendants of the witness and the length
-1
of time before trial that the defendants received such actual notice; (5) whether there exists a history of
plaintiff’s engaging in deliberate delay; (6) the degree of compliance by plaintiff with other provisions of
the court’s order; (7) an attempt by plaintiff to timely cure the defect; and (8) whether a lesser sanction
would better serve the interests of justice.
In applying the factors set forth in Dean, we conclude that the trial court abused its discretion in
denying plaintiff’s motion to amend the witness list to add an expert witness because the resulting
sanction of dismissal of the action was too drastic. Plaintiff asked to amend her witness list one week
before mediation and six weeks before trial. Plaintiff did fail to cooperate in securing a prompt
deposition of her original witness. However, there were no other delays caused by plaintiff and the
upcoming trial date was the original trial date. Moreover, there is really no prejudice to defendants,
other than the fact of this first adjournment. As a result, because a grant of plaintiff’s motion would have
resulted in the first adjournment of the trial date and because the denial of the motion denied plaintiff the
opportunity to have the merits of her case litigated, the sanction of denial which necessarily resulted in
the granting of summary disposition, was too severe. Tisbury, supra, p 21. We do note that the trial
court may, in its discretion, impose any lesser sanction on remand, such as requiring plaintiff to pay the
costs of the deposition, to pay actual costs including attorney fees incurred by the defense as a result of
plaintiff’s failure to timely name the expert witness, or any other sanction the trial court believes
necessary. See MCR 2.313(B)(2).
We therefore reverse the order of summary disposition and remand to allow plaintiff to amend
her witness list.
Reversed and remanded for further proceedings. We do not retain jurisdiction.
/s/ Kathleen Jansen
/s/ Martin M. Doctoroff
/s/ Hilda R. Gage
-2
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.
