PATRICIA DIVELY V WILLIAM BEAUMONT HOSPITAL
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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UNPUBLISHED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.
COOPER, J. (dissenting).
I must respectfully dissent from the opinion of my colleagues, as I would find that the
trial court abused its discretion in failing to strike James Lighthall as an expert witness or to
impose other sanctions on defendant for its continuous abuse of discovery.
Defendant willfully failed to supplement interrogatory answers regarding expert
witnesses and to supplement discovery requests. Defendant also willfully withheld Dr.
Lighthall’s identity, qualifications and his report and opinions for eighteen months between the
declaration of a mistrial and the retrial in this case. Defendant knew Dr. Lighthall was to serve
as an expert witness at the time of the original trial, but withheld his work papers and opinions
from plaintiff and falsely identified him as a rebuttal witness on the final pretrial witness list.
Defendant did not disclose Dr. Lighthall as an expert witness until the filing of an amended
witness list, without the court’s permission, one month prior to retrial. Defense counsel did not
inform plaintiff of his intent to call Dr. Lighthall until the fourth day of trial and withheld Dr.
Lighthall’s report, which did not include his opinions, until this late date.
Not only did the trial court admit Dr. Lighthall’s testimony over plaintiff’s objections, but
it also erroneously found that plaintiff had been notified of his status as an expert witness prior to
the original trial date. Defendant’s continuous dereliction of its duty to supplement discovery
was egregious and certainly should have been sanctioned. I cannot find the trial court’s failure to
strike Dr. Lighthall’s testimony proper in light of the serious and continued nature of defendant’s
discovery violations and the trial court’s own erroneous finding of fact. I would, therefore,
remand for a new trial.
/s/ Jessica R. Cooper
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