DENISE ASHTON V ST JOSEPH MERCY HOSPITAL
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STATE OF MICHIGAN
COURT OF APPEALS
DENISE ASHTON,
UNPUBLISHED
February 17, 2004
Plaintiff-Appellant,
v
ST. JOSEPH MERCY HOSPITAL, RICHARD
POMERANTZ, M.D., and HURON VALLEY
SURGERY ASSOCIATES,
No. 242917
Washtenaw Circuit Court
LC No. 99-004993-NM
Defendants-Appellees.
Before: Zahra, P.J., and Cavanagh and Cooper, JJ.
Zahra, P.J. (dissenting).
I respectfully dissent. I disagree with the majority’s conclusion that trial
court erred in precluding plaintiff’s expert, Dr. Semel, from “‘offering opinions
regarding gynecological issues,’ including the removal of plaintiff’s reproductive
organs.” Rather, I conclude that the trial court properly precluded plaintiff from
establishing through expert testimony that Dr. O’Leary, the obstetriciangynecologist who removed plaintiff’s reproductive organs, would not have
removed plaintiff’s reproductive organs given knowledge of plaintiff’s
diverticulitis. Therefore, I would affirm the trial court’s decision.
Plaintiff claims that defendant Pomerantz’ failure to diagnose plaintiff’s
diverticulitis resulted in the loss of her left fallopian tube and ovary.1 However, Dr.
O’Leary, not defendant Pomerantz, removed plaintiff’s reproductive organs.
Doctor O’Leary is not a party to this lawsuit. Accordingly, plaintiff must establish
that, “but for the lack of knowledge of [diverticulitis] on the part of [Dr. O’Leary],
her claimed injuries would not have occurred. Zdrojewski v Murphy, 254 Mich
App 50, 64; 657 NW2d 721 (2002) citing Haliw v Sterling Heights, 464 Mich 297,
310; 627 NW2d 581 (2001). Otherwise stated, plaintiff must establish that, had
1
Plaintiff concedes that her right fallopian tube and ovary were too infected to be
salvaged.
-1-
defendant Pomerantz properly diagnosed plaintiff, Dr. O’Leary would not have
removed plaintiff’s left fallopian tube and ovary.
Plaintiff offers Dr. Semel, a general surgeon, to establish not only that Dr.
Pomerantz, a general surgeon, misdiagnosed plaintiff, but also to testify that
plaintiff’s left fallopian tube and ovary could have been salvaged at the time Dr.
O’Leary, a specialist in obstetrics and gynecology, removed them. The trial court
did not limit Dr. Semel from offering testimony relating to the accuracy of Dr.
Pomerantz’s diagnosis. The trial court merely precluded Dr. Semel from
speculating about whether this alleged misdiagnosis caused Dr. O’Leary, a non
party to this case, to remove plaintiff’s reproductive organs. The trial court did not
abuse its discretion in rendering this ruling. Simply put, it is reasonable to
conclude that evidence relating to what Dr. O’Leary would have done had she been
provided a different diagnosis can be established through the testimony of Dr.
O’Leary, but not by a putative expert who is hired by a litigant and whose medical
expertise differs from that of Dr. O’Leary.
The wisdom of the trial court’s ruling was revealed during the trial, which
was interrupted, improvidently in my opinion, when this Court stayed the
proceedings and granted plaintiff’s application for leave to appeal. Prior to
issuance of the stay, Dr. O’Leary testified that she would have removed plaintiff’s
left fallopian tube and ovary regardless of knowledge that plaintiff had
diverticulitis. This testimony establishes that Dr. Pomerantz’s alleged misdiagnosis
was not the cause in fact of plaintiff’s loss of her reproductive organs.
Expert testimony that is purely speculative should be excluded or stricken
pursuant to MRE 403. Phillips v Deihm, 213 Mich App 389, 402; 541 NW2d 566
(1995). Here, evidence that Dr. O’Leary, a non-party to this action, would have
acted in accord with Dr. Semel’s notion2 of the standard of care for an obstetriciangynecologist is purely speculative. The record reflects that it is reasonable to
conclude that only Dr. O’Leary can establish what she would have done had
plaintiff been diagnosed differently. The trial court properly excluded this aspect
of Dr. Semel’s testimony.
/s/ Brian K. Zahra
2
Dr. Semel is not a obstetrician-gynecologist, and his testimony in regard to the
standard of care for an obstetrician-gynecologist, if otherwise relevant, would be
subject to meaningful cross-examination.
-2-
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