JOCELYN BROWN V INGHAM REGIONAL MEDICAL CENTER
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STATE OF MICHIGAN
COURT OF APPEALS
JOCELYN BROWN,
UNPUBLISHED
January 27, 2009
Plaintiff-Appellee,
and
DONALD BROWN,
Plaintiff,
v
INGHAM REGIONAL MEDICAL CENTER,
AMY S. HAYES, WORK IMPROVEMENT
REHABILITATION CENTER, and LEANN G.
WHITGEN,
No. 280791
Ingham Circuit Court
LC No. 01-093606-NH
Defendants-Appellants.
Before: Hoekstra, P.J., and Fitzgerald and Zahra, JJ.
PER CURIAM.
Defendants appeal by leave granted from a circuit court order denying their motion to
amend their witness list to include an occupational therapist as an expert witness. We reverse
and remand. This appeal has been decided without oral argument pursuant to MCR 7.214(E).
Plaintiff Jocelyn Brown filed this medical malpractice action, alleging that defendants
Amy Hayes and Leann Whitgen, occupational therapists, committed malpractice and that the
other named defendants were vicariously liable. Defendants filed an affidavit of meritorious
defense, see MCL 600.2912e(1), from a physical therapist, Ellen Smith, and named Smith as an
expert witness in their witness list. In 2004, plaintiff obtained a default against defendants
because Smith was not qualified under MCL 600.2169 to testify as an expert and thus her
affidavit was insufficient. In a prior appeal, this Court reluctantly agreed that Smith was not
qualified to testify as an expert, but concluded that defense counsel had acted reasonably in
interpreting § 2169 to preclude a registered occupational therapist from qualifying as an expert
and thus was required to provide an affidavit from a licensed physical therapist. Brown v Hayes,
270 Mich App 491, 502-504; 716 NW2d 13 (2006), rev’d in part on other grounds 477 Mich 966
(2006). Several months after the case was returned to the trial court in 2007, defendants moved
to amend their witness list to include a registered occupational therapist, Thomas Lilley, as an
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expert in light of the fact that Smith was not qualified to testify as an expert. The trial court
denied the motion on the ground that it was “absolutely untimely” and “far too late.”
“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 (1992). “An abuse
of discretion occurs when the decision results in an outcome falling outside the principled range
of outcomes.” Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006).
The trial court issued a scheduling order stipulated to by the parties in September 2001.
It required witness lists to be exchanged by November 15, 2001, and defendants’ experts to be
named by January 15, 2002. See MCR 2.401(B)(2)(a)(iv) and (I)(1). It further provided that
“[w]itnesses not so named shall not be permitted to testify except upon motion for good cause
shown.” See MCR 2.401(I)(2). Defendants filed an original and a supplemental expert witness
list in 2002; Smith was named as an expert witness but Lilley was not. The trial court abused its
discretion by failing to consider whether defendants’ reason for adding Lilley as an expert, even
at such a late date, constituted good cause. Further, the trial court abused its discretion to the
extent that it denied defendants’ motion on the ground of timeliness alone. Before barring a
witness from testifying due to untimeliness, the court must consider the particular circumstances
of the case “to determine if such a drastic sanction is appropriate.” Dean v Tucker, 182 Mich
App 27, 32; 451 NW2d 571 (1990). The court should consider numerous factors relevant to the
circumstances of the case, id. at 32-33; Tisbury, supra at 20-21, and “[t]he record should reflect
that the trial court gave careful consideration to the factors involved and considered all its
options in determining what sanction was just and proper in the context of the case before it.”
Bass v Combs, 238 Mich App 16, 26; 604 NW2d 727 (1999), overruled in part on other grounds
by Dimmitt & Owens Financial, Inc v Deloitte & Touche (ISC), LLC, 481 Mich 618, 628; 752
NW2d 37 (2008). Accordingly, we remand this case to the trial court for such a determination.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Joel P. Hoekstra
/s/ E. Thomas Fitzgerald
/s/ Brian K. Zahra
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