JANIS CLIFF V MICHAEL HEATH DDS
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STATE OF MICHIGAN
COURT OF APPEALS
JANIS CLIFF,
UNPUBLISHED
January 4, 2011
Plaintiff-Appellee,
v
No. 294101
Oakland Circuit Court
LC No. 2006-078456-NH
MICHAEL E. HEATH, D.D.S. and THE
HUNTINGTON GROUP, P.C.,
Defendants-Appellants,
and
GREGORY NEILSEN, D.D.S. a/k/a GREGORY
NIELSEN, D.D.S. and JOHN V. GAUL, D.D.S.,
Defendants.
JANIS CLIFF,
Plaintiff-Appellee,
v
GREGORY NEILSEN, D.D.S. a/k/a GREGORY
NIELSEN, D.D.S.,
Defendant-Appellant,
and
MICHAEL E. HEATH, D.D.S., JOHN V. GAUL,
D.D.S., and THE HUNTINGTON GROUP, P.C.,
Defendants.
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No. 294710
Oakland Circuit Court
LC No. 2006-078456-NH
JANIS CLIFF,
Plaintiff-Appellee,
v
No. 294896
Oakland Circuit Court
LC No. 2006-078456-NH
MICHAEL E. HEATH, D.D.S. and THE
HUNTINGTON GROUP, P.C.,
Defendants-Appellants,
and
GREGORY NEILSEN, D.D.S. a/k/a GREGORY
NIELSEN, D.D.S. and JOHN V. GAUL, D.D.S.,
Defendants.
Before: CAVANAGH, P.J., and FITZGERALD and FORT HOOD, JJ.
PER CURIAM.
Defendants appeal as of right a judgment in plaintiff’s favor after the trial court entered
(1) an order granting plaintiff’s motion for rehearing and reconsideration of a decision granting a
new trial in favor of defendants Michael Heath, D.D.S. and Huntington Group, P.C., (2) an order
denying a motion for prevailing party costs and case evaluation sanctions filed by defendant
Gregory Nielsen, D.D.S., and (3) an order granting plaintiff’s motion for prevailing party costs
and case evaluation sanctions. We affirm.
Docket No. 294101
This is a dental malpractice case. A five-day jury trial was held before a visiting judge,
the Honorable Charles Simon, and resulted in a verdict in favor of plaintiff and against Dr. Heath
and Huntington, only. Dr. Heath and Huntington moved for a new trial on the grounds that
plaintiff’s counsel committed misconduct in her closing argument and that an improper jury
instruction was given to the jury. In particular, these defendants argued that during closing
argument plaintiff’s counsel alleged that there was a conspiracy between defendants, defense
counsel, and defendants’ expert witnesses to render collusive and untrue testimony which was
highly improper, inflammatory, and denied defendants a fair trial. Defendants also argued that
during closing argument plaintiff’s counsel requested that the jury “send a message” to
defendants which was prejudicial and materially affected defendants’ right to a fair trial.
Further, these defendants argued that the jury was improperly instructed because M Civ JI 50.10
was given and there was “absolutely no testimony that Plaintiff had a latent susceptibility or was
unusually susceptible to injury.”
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Oral arguments were held on the motion before Judge Simon, but a complete trial
transcript was not provided to the court. Following arguments, Judge Simon concluded, in total,
as follows:
In light of the Defense’s comment, the word conspiracy bothered me, and also the
sending a message is really a message for punishment. And the current case,
that’s at 404 Michigan 339, where setting purpose to prejudice the Jury in regards
to the Juror’s attention from the merits of the case, here it didn’t happen that many
times, but also, it’s my – the Court concedes that it was error to give the 50.10
instruction. For that reason a motion for a new trial is granted.
Thereafter, an order was entered granting Dr. Heath and Huntington’s motion for a new trial.
Plaintiff moved for rehearing and reconsideration, arguing that the court committed
palpable errors. Plaintiff’s arguments included that the referenced remarks made during closing
argument, considered in context, were relevant and properly supported by the evidence. There
was no deliberate course of misconduct or studied purpose to inflame or prejudice the jury.
Further, the jury was properly instructed that arguments of counsel were not evidence, that their
verdict was not to be based on sympathy, and that they should not render a verdict to punish
defendants. Moreover, defendants never requested a curative instruction or moved for a mistrial.
In any event, the jury returned a verdict in favor of one defendant and rendered a conservative
verdict, without future damages, against the other two defendants, illustrating that the jury
verdict was not the result of prejudice or an improper purpose. Finally, ample evidence justified
the jury instruction, including repeated references throughout the trial to plaintiff’s pre-existing
medical conditions and predisposition to infection.
The Honorable Steven Andrews, who was assigned the case, requested a copy of the
complete trial transcript, as well as briefing from defendants. On August 28, 2009, Judge
Andrews entered an opinion and order granting plaintiff’s motion for rehearing and
reconsideration, reversing the order granting defendants a new trial. First, the court noted that
plaintiff’s counsel argued that there was a “conspiracy of silence” among oral surgeons in
Michigan which required her to go outside the state to find an expert witness; she was not
arguing that there was a conspiracy amongst defendants and their experts to collude and lie. The
court held that the “conspiracy of silence” argument was improper because it was not based on
facts in evidence but, upon objection, the court promptly reminded the jury that they were to
decide the case based on the facts. Later the court also instructed the jury that attorneys’
statements and arguments were not evidence and jurors are presumed to follow their instructions.
Accordingly, the court held that the error was cured by the court’s instructions. The court noted
that such conclusion was supported by the facts that Dr. Nielsen was found not liable and the
jury’s award was fairly conservative.
Second, the court considered the context of plaintiff’s counsel’s “send a message”
argument. In part, counsel had argued that the jury, as members of the community, were to
decide whether it was just what happened to plaintiff or “should they pay for what they did to her
and should they be sent a message that this [is] not how you treat patients . . . .” After defense
counsel objected, the trial court indicated that “it’s not the purpose of this trial to send a message,
that’s not what the purpose of it is.” Because the court clearly indicated that “sending a
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message” was not the purpose of trial and also gave the jury instruction that attorney statements
and arguments were not evidence, the error was cured. Further, the court concluded that the
verdict showed that the jury’s attention was not diverted from the merits of the case by these
statements because Dr. Nielson was not found liable and the damages awarded were
conservative.
Third, the motion for new trial also alleged that plaintiff’s counsel’s remarks about the
defense experts “re-paying a favor” constituted misconduct warranting a new trial. The court
rejected that argument on the grounds that counsel may characterize the testimony of a witness
and any prejudice was cured by the court’s instructions to the jury that lawyers’ statements and
arguments were not evidence.
Fourth, the court considered whether M Civ JI 50.10 was properly given. Although
defendant had argued that there was no evidence to support the instruction, the court concluded
that this argument “is inaccurate.” Dr. Heath testified at length about plaintiff’s history of
allergies and back problems that required the placement of metal rods from which the jury could
have inferred made plaintiff more susceptible to infection. Thus, this instruction was proper.
The court concluded that plaintiff demonstrated palpable errors as follows:
In considering whether Judge Simon erred in granting Defendants’ motion for
new trial, this Court has considered that Judge Simon did not address his
statements and instructions to the jury and whether they cured any errors in the
closing argument. He also did not address the verdict and what it communicated
regarding any prejudice from the closing argument. He also did not address the
testimony regarding Plaintiff’s latent susceptibility to injury.
On appeal, defendants argue that the successor judge committed reversible error in
granting plaintiff’s motion for rehearing and reconsideration because plaintiff did not establish
palpable error. We disagree.
A trial court’s decision on a motion for reconsideration is reviewed for an abuse of
discretion. Woods v SLB Prop Mgt, LLC, 277 Mich App 622, 629; 750 NW2d 228 (2008). An
abuse of discretion occurs when the decision results in an outcome falling outside the range of
principled outcomes. Corporan v Henton, 282 Mich App 599, 605-606; 766 NW2d 903 (2009).
MCR 2.119(F)(3) provides:
Generally, and without restricting the discretion of the court, a motion for
rehearing or reconsideration which merely presents the same issues ruled on by
the court, either expressly or by reasonable implication, will not be granted. The
moving party must demonstrate a palpable error by which the court and the
parties have been misled and show that a different disposition of the motion must
result from correction of the error.
First, we address Dr. Heath and Huntington’s claims that the successor judge acted
improperly by granting plaintiff’s motion for reconsideration (1) “by failing to adhere to the
palpable error standard,” and (2) because the judge made “several presumptions that Judge
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Simon did not take into account several things when ruling on Defendants’ motion.” Neither of
these claims have merit.
The case law is clear that “[t]he purpose of MCR 2.119(F) is to allow a trial court to
immediately correct any obvious mistakes it may have made in ruling on a motion, which would
otherwise be subject to correction on appeal, but at a much greater expense to the parties.” Bers
v Bers, 161 Mich App 457, 462; 411 NW2d 732 (1987). As the Bers Court explained, quoting
Smith v Sinai Hosp of Detroit, 152 Mich App 716, 723; 394 NW2d 82 (1986):
If a trial court wants to give a “second chance” to a motion it has previously
denied, it has every right to do so, and this court rule does nothing to prevent this
exercise of discretion. All this rule does is provide the trial court with some
guidance on when it may wish to deny motions for rehearing. [Id.]
As illustrated by its plain language, i.e., “[g]enerally, and without restricting the discretion of the
court,” MCR 2.119(F)(3) does not limit a trial court’s discretion when ruling on motions for
rehearing to palpable errors, contrary to Dr. Heath and Huntington’s claim. See, also, Brown v
Northville Regional Psychiatric Hosp, 153 Mich App 300, 308-309; 395 NW2d 18 (1986).
In any event, contrary to defendants’ second claim—and as the successor judge obviously
determined—the trial court’s initial decision granting defendants’ motion for new trial was not
only unclear, but seriously lacking. First, it appears that the initial decision was based entirely
on the purported “error to give the 50.10 instruction.” The initial decision held: “For that reason
a new trial is granted.” Second, there was ample evidence to support the disputed jury
instruction, as will be discussed below. Third, there was no reasoning of any kind in support of
the court’s initial holding, including consideration whether any of the alleged errors were
harmless. Fourth, because of the confusing nature of the initial holding, it was unclear to the
parties, and the successor judge, as to the precise reason that the new trial was granted. Thus,
upon plaintiff’s motion for reconsideration, the trial court proceeded as if a new trial was granted
because of attorney misconduct, as well as the purported erroneous instruction. Under these
circumstances, the successor judge was entirely right to reconsider the decision to grant a new
trial in this case that had already been litigated through a five-day jury trial. We also note that
the initial decision was made without benefit of the complete trial transcripts. Therefore, we
reject defendants’ claims on appeal that the successor judge improperly reviewed this matter on
reconsideration. Nevertheless, because the initial decision was a product of palpable errors, it
was properly reversed.
A new trial may be granted when the substantial rights of a party were materially affected
and there was misconduct of the prevailing party’s counsel or an error of law such as an
improper jury instruction. MCR 2.611(A)(1)(b) and (g). The claimed attorney misconduct
occurred during plaintiff’s counsel’s closing and rebuttal arguments. The purported improper
jury instruction was M Civ JI 50.10. We first address the claims of attorney misconduct.
An attorney’s comments during a trial warrant reversal where “they indicate a deliberate
course of conduct aimed at preventing a fair and impartial trial or where counsel’s remarks were
such as to deflect the jury’s attention from the issues involved and had a controlling influence on
the verdict.” Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 501-502; 668 NW2d 402
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(2003), quoting Reetz v Kinsman Marine Transit Co, 416 Mich 97, 102-103; 330 NW2d 638
(1982). However, misconduct of counsel will not justify a new trial if the error was harmless.
Id.
Plaintiff’s counsel’s closing argument included the following:
Plaintiff’s Counsel:
Mr. Manion [defense counsel] told you in opening statements and as far as here
numerous times that you will have sympathy for Mrs. Cliff [plaintiff] and that you
should set that aside and decide this case only on the facts and the law. I agree
with that. We are not here begging for money based on sympathy. We are here
demanding justice. She is entitled to justice. She did not get proper treatment
from them. She had to undergo this horrific injury. And now this is her only day
in court where she can get the members of the community, you, to decide is this
just what happened to her or should they pay for what they did to her and should
they be sent a message that this is not how you treat patients and the next time a
patient comes to your office and has this kind of problem, maybe you will be
more alert and think infection and -- and -- and if you don’t know -Defense Counsel:
I just -Plaintiff’s Counsel:
--refer out to somebody else.
Defense Counsel:
--I’m sorry, excuse me just for a minute. I just object to this over-the-top send-amessage kind of argument. It really is totally inappropriate and argument -- way
overly argumentative and inappropriate by the way.
The Court:
Yeah, well, it’s not the purpose of this trial to send a message, that’s not what the
purpose of it is.
Plaintiff’s Counsel:
I’ll move on.
After additional argument by plaintiff’s counsel, defense counsel proceeded with his
closing argument. Defense counsel reminded the jury that they were to decide the case based
upon “what you hear from the witness chair” and not from what they hear in argument. Further,
he reminded the jury that they could not base their decision on sympathy for plaintiff because
“she had a bad complication.” With regard to determining whether there was a breach in the
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standard of care, defense counsel referred the jury to the expert witness testimony. Regarding
plaintiff’s expert witness, Dr. Krell, defense counsel argued:
I asked you to listen to [his deposition testimony] carefully, because you have to
figure out who’s being straight with you here, and who’s testifying in connection
with what the standard of care is, and who is being straight with you or truthful
with you concerning Drs. Heath and Nielsen’s compliance with the standard of
care. Things for you to remember in balancing this out with respect to Dr. Krell is
he does this, in my view, as a business, he makes a big part of his income doing
this, he advertises his willingness to consult in these types of litigation cases to
attorneys, has done so for many years, has been involved in many cases, has been
exposed a lot to court, has testified in trials many times, and has been to numerous
states claiming other oral surgeons were negligent for various reasons. And I’d
like you to balance that when you assess credibility, balance that with respect to
Drs. Heath and Nielsen, but also Drs. Betts and Bonk. And balance that out with
respect to how you assess their interest in this case. And I’m asking you to, when
you balance it out, Drs. Bonk and Betts are the two that are being straight to you
with respect to these particular issues.
During closing argument, defense counsel also referenced the fact that plaintiff was given
antibiotics before the extraction procedure stating, “he also prescribes an antibiotic, he pre[-]
medicates her for the surgery to protect her and her hardware from her serious back issues that
she -- that are preexisting.”
Then plaintiff’s counsel began her rebuttal argument. During rebuttal, plaintiff’s counsel
discussed the issue of complications associated with medical procedures, stating: “I -- we are not
saying that these doctors are evil. We are not saying that these doctors set out to intentionally
hurt [plaintiff]. We are saying they made a mistake.” She then discussed Dr. Krell and the
following exchange occurred:
Plaintiff’s Counsel:
I wanted to talk to you a little bit about Dr. Krell, too. The next so-called defense
or excuse I hear for why you should render a verdict in favor of the defendants is,
well, look at Dr. Krell, he’s someone they hired to, you know, and he likes to
make money doing this, whatever. Look at what has happened in this case. Dr.
Nielsen tells you he knows Dr. Betts and Dr. Bonk [defense experts]. Dr. Nielsen
tells us that the oral surgery community in this state is about 50 to 75 oral
surgeons, that they all know each other, that it’s like a school classroom, and that
as the community is small they all know each other. Look who they bring as a socalled independent objective expert witness, the first one you heard this morning,
[defense counsel’s] former client. When he is sued for malpractice who does he
get to testify for -- to come and tell a jury that he didn’t do anything wrong? Dr.
Gaul, their partner. Now it’s -- it’s -- it’s his turn to repay the favor. When they
are getting sued because they did something wrong, he comes to court and
voluntarily testifies on their behalf and does not charge them any money and
happily does so and says yes, I didn’t charge any money. Do you think that I am
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going to be able to get any one of these oral surgeons in the state of Michigan,
including Dr. Bonk and Dr. Betts, to act as an expert witness for the plaintiff?
Defense Counsel:
There’s no evidence -- wait, wait, wait. There’s no evidence to support such a
thing, Judge. I mean that’s just totally inappropriate.
The Court:
You’re assuming facts not in evidence.
Plaintiff’s Counsel:
Okay. Well, [defense counsel] talked to you about the fact that Dr. Krell
advertises and that somehow this should make him less credible. How else am I
going to find out about him?
The law is we have to have an expert oral surgeon to talk to you about what was
done wrong here. Am I supposed to go look at the phone book for the entire
country and figure out eeny meeny miny moe and call a million of them? No.
Obviously there has to be some way for lawyers to know the availability of other
doctors who are willing to come forward and not be part of this conspiracy of
silence -Defense Counsel:
Hold it, Judge. You know, this is just way over-the-top argument. What can -there’s been no testimony to support anything like that.
Plaintiff’s Counsel:
Your Honor -Defense Counsel:
It’s just hopeless argument on this attorney’s part.
Plaintiff’s Counsel:
Your Honor, he brought up about Dr. Krell advertising for his services -The Court:
Okay, you can -Plaintiff’s Counsel:
There’s been testimony that the expert witness was [defense counsel’s] client.
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The Court:
All right.
evidence.
The jury remembers what was testified to and what was not in
Plaintiff’s Counsel:
Okay. Um, so you were asked by [defense counsel] to consider the credibility of
each of these witnesses, and I ask you to consider the credibility of Dr. Bonk.
He’s getting his clients to testify for each other.
Following plaintiff’s counsel’s rebuttal argument, the trial court instructed the jury.
Those instructions included that “[t]he lawyers’ statements and argument are not evidence.
They’re only meant to help you understand the evidence and each side’s legal theories.” Further,
the court instructed that “[y]our verdict must be solely to compensate Plaintiff for her damages,
and not to punish the Defendants.”
It is clear from the trial court’s analysis of plaintiff’s motion for rehearing and
reconsideration that it first considered whether plaintiff’s counsel’s comments, taken in context,
were improper, whether a proper objection was made, and if the comments were improper,
whether they were nevertheless harmless. Again, a new trial may be granted when the
substantial rights of a party were materially affected and there was misconduct of the prevailing
party’s counsel. MCR 2.611(A)(1)(b). Clearly, these considerations should have been made
initially before defendants’ motion for new trial was granted and it is readily apparent that the
initial decision—if it was even based on attorney misconduct—did not consider these matters.
Dr. Heath and Huntington claim that plaintiff’s counsel’s reference to “sending a
message” during closing argument was inappropriate, prejudicial, and materially affected their
right to a fair trial. Defendants argue that the use of the precise words “send a message,”
automatically requires reversal because “there was only one reason counsel requested that the
jury ‘send a message,’ and that was to punish defendants.” We cannot agree. First, although
plaintiff’s counsel did ask the jury to “send a message” to defendants, the “message” to be sent
was that “the next time a patient comes to your office and has this kind of problem, maybe you
will be more alert and think infection and . . . if you don’t know . . . refer out to somebody else.”
In other words, evaluated in context, the words “send a message” were not an obvious plea to
punish defendants, but to cause them to be more alert to the signs of infection after an oral
surgery procedure, i.e., to educate defendants. In fact, in her rebuttal argument, plaintiff’s
counsel advised the jury that it was not plaintiff’s position that “these doctors are evil” or that
“these doctors set out to intentionally hurt” plaintiff. In other words, counsel was clear that
plaintiff’s intent was not to punish defendants.
In any case, upon objection, the jury was properly advised that it was not the purpose of
the trial to send a message. Thus, even if this single and brief comment was improper, any error
was rendered harmless by the court’s instruction, as well as by the fact that the jury was
instructed on more than one occasion that the comments and arguments of the attorneys were not
evidence. Further, the jury was also instructed that their verdict “must be solely to compensate
Plaintiff for her damages, and not to punish the Defendants.” Juries are presumed to understand
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and follow the court’s instructions. Bordeaux v Celotex Corp, 203 Mich App 158, 164; 511
NW2d 899 (1993). Consequently, plaintiff’s counsel’s “send a message” comment did not
warrant a new trial. See Szymanski v Brown, 221 Mich App 423, 429; 562 NW2d 212 (1997).
Dr. Heath and Huntington also argue that during closing argument plaintiff’s counsel
“made several improper comments without a basis in evidence of a conspiracy between
Defendants, defense counsel and Defendants’ expert witnesses to render collusive and untrue
testimony.” We disagree.
During defense counsel’s closing argument, as set forth above, he argued that plaintiff’s
expert witness, Dr. Krell, was not to be believed because, essentially, he offered bought and paid
for testimony. See Kern v St. Luke’s Hosp Ass’n of Saginaw, 404 Mich 339, 346; 273 NW2d 75
(1978). Particularly, defense counsel stated: “Things for you to remember in balancing this out
with respect to Dr. Krell is he does this court thing, in my view, as a business, he makes a big
part of his income doing this, he advertises his willingness to consult in these types of litigation
cases to attorneys, has done so for many years, has been involved in many cases, has been
exposed a lot to court, has testified in trials many times, and has been to numerous states
claiming other oral surgeons were negligent for various reasons.” Defense counsel asked the
jury to consider these things to determine “who’s being straight with you.” Clearly, defense
counsel was attempting to totally discredit the opinions of Dr. Krell on the ground that he would
testify to negligent conduct, whether true or not, because that was how he made his living. As
was the case in Kern, 404 Mich at 352, 354, here, defense counsel was attempting to convey the
message that plaintiff would not have relied on an out-of-state physician, i.e., a “professional
expert,” to testify for her had her case been meritorious.
In her rebuttal argument, plaintiff’s counsel was then required to attempt to discredit
defendants’ expert witness testimony. There was evidence that defendants personally knew their
defense experts and that was brought to light in plaintiff’s counsel’s rebuttal argument. Counsel
reminded the jury that Dr. Kenneth Bonk had testified that he was a former client of defense
counsel and that Dr. Gaul—who also worked at Huntington with both Dr. Heath and Dr.
Nielsen—had been his defense expert when Dr. Bonk was sued for malpractice. Plaintiff’s
counsel asked the jury to infer that Dr. Bonk was repaying the favor by offering his “expert”
opinion in this case as evidenced by the fact that he was not charging any fee for his work as an
expert on this case. Further, Dr. Nielsen admitted during his trial testimony that he knew the
defense’s expert witnesses stating that, with regard to oral surgeons, “It’s a small community,
you know everybody.” Thus, contrary to the case of Kern, 404 Mich at 346-347, evidence
supported plaintiff’s counsel’s closing argument statements.
And this argument was responsive to defense counsel’s argument. Defense counsel
asked the jury to conclude that Dr. Krell was not giving true testimony on the ground that he was
in the “business” of providing expert testimony. Plaintiff’s counsel asked the jury to conclude
that defendants’ experts were not giving true testimony because, as the evidence showed, they all
knew each other and, in one case, an expert was not even getting paid. Counsel is permitted to
draw reasonable inference from the testimony and may comment on a witness’ bias during
closing argument. Hayes v Coleman, 338 Mich 371, 382; 61 NW2d 634 (1953); Wiley, 257
Mich App at 505. And plaintiff’s counsel’s rebuttal comments were responsive to defense
counsel’s closing argument comments. “Statements made by counsel in closing argument may
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not be error if given in response to arguments made by opposing counsel.” Wheeler v Grand
Trunk Western R Co, 161 Mich App 759, 765; 411 NW2d 853 (1987).
Moreover, because of defense counsel’s emphasis on the fact that Dr. Krell advertises his
expert services and goes to “numerous states” to give his testimony, plaintiff’s counsel was
forced to attempt to explain why plaintiff’s expert was retained by advertisement and why he
was not from the State of Michigan. Thus, she had to discredit defense counsel’s claim that Dr.
Krell was a “professional expert witness.” She did so by reminding the jury of Dr. Nielsen’s
testimony that oral surgeons are a “small community, you know everybody” and that “it’s like a
school class where you know everybody by name.” From this testimony plaintiff’s counsel
asked the jury to infer that she could not have retained one of these oral surgeons—who all knew
each other and were all like a school class—to testify on behalf of her client. Plaintiff’s counsel
vaguely referred to this, and in only one instance, as a “conspiracy of silence.” Although this
characterization was not precisely supported by the evidence in that there was no evidence that
plaintiff had attempted to retain one of the other oral surgeons in the state, upon objection, the
court promptly addressed the issue by stating that the “jury remembers what was testified and
what was not in evidence.” Defense counsel never requested a curative instruction. Thus, even
if the use of the phrase “conspiracy of silence,” on only one occasion, was improper, any error
was rendered harmless by the court’s repeated instructions that the comments and arguments of
the attorneys were not evidence. Accordingly, a new trial was not warranted by this comment.
In summary, plaintiff’s counsel’s disputed comments clearly did not warrant reversal.
They did not illustrate a deliberate course of conduct aimed at preventing a fair and impartial
trial and were not an attempt to deflect the jury’s attention from the issues involved. See Wiley,
257 Mich App at 501-502. To the extent that plaintiff’s comments were improper, any such
error was harmless and did not have a controlling influence on the verdict. See Reetz, 416 Mich
at 103. Accordingly, the trial court did not abuse its discretion when it granted plaintiff’s motion
for rehearing and reconsideration with regard to defendants’ claims of attorney misconduct.
Next, Dr. Heath and Huntington argue that the trial court’s instruction of M Civ JI 50.10
constituted an error of law requiring a new trial; thus, the order granting them a new trial should
not have been reversed. We disagree. When requested by a party, a standard jury instruction
must be given if it is applicable and accurately states the law. MCR 2.516(D)(2). The trial
court’s determination that a standard instruction was applicable and accurate is reviewed for an
abuse of discretion. Moore v Detroit Entertainment, LLC, 279 Mich App 195, 223; 755 NW2d
686 (2008) (citation omitted).
Here, Dr. Heath and Huntington argue that “there was absolutely no testimony that
Plaintiff had a latent susceptibility to injury or was unusually susceptible to infection.” We do
not agree. First, during the course of the trial it was made clear to the jury that plaintiff was
seeking damages for her alleged continued anxiety and panic attacks related to this matter. On
direct examination plaintiff testified to that effect. On cross-examination, defense counsel
queried plaintiff at length about her alleged anxiety, eliciting from plaintiff testimony about her
“many other medical issues,” “serious medical issues with respect to [her] back,” an “infected
dog bite,” her “failed back syndrome,” and her “acute asthmatic bronchitis.” Second, on direct
examination by defense counsel, Dr. Nielsen testified that plaintiff had a history of “many, many,
many allergies.” On cross-examination, when questioned by plaintiff’s counsel as to whether he
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was telling the jury that any of those allergies were the cause of her problems requiring
hospitalization in this case, Dr. Nielsen responded, “I did not suggest that, but neither can I
totally eliminate them.” Third, during direct examination by defense counsel, Dr. Heath testified
that plaintiff had allergies and that she also had metal rods in her back which required that she be
given antibiotics before dental procedures—indicating a predisposition to infection. Fourth,
during closing argument, defense counsel referenced the fact that plaintiff was given antibiotics
before the extraction procedure stating, “he prescribes an antibiotic, he pre-medicates her for the
surgery to protect her and her hardware from her serious back issue that she – that are preexisting.”
As the trial court stated in granting plaintiff’s motion for rehearing and reconsideration,
defendants’ argument that there was no evidence to support the instruction “is inaccurate.” In
light of the foregoing information provided to the jury, the jury could have inferred that
plaintiff’s injuries were caused by her other medical conditions, including her predisposition to
infection, rather than defendants’ actions. Further, plaintiff testified that she had continued
emotional problems and anxiety from this experience and her counsel requested damages for
those injuries. During defense counsel’s cross-examination of plaintiff, her various health issues
were set forth before the jury for consideration, apparently in an attempt to establish that
plaintiff’s continued emotional problems and anxiety were caused by those other medical
conditions and not defendants’ actions. Therefore, it is clear that, in light of the evidence of
record, the disputed standard jury instruction was applicable and properly given. Thus, the trial
court did not abuse its discretion when it granted plaintiff’s motion for rehearing and
reconsideration on this ground. But, even if the instruction was inapplicable, defendants never
established the instruction unfairly prejudiced them so as to render the jury’s verdict inconsistent
with substantial justice; thus, it was palpable error to grant their motion for new trial on this
ground. See MCR 2.613(A). Accordingly, none of Dr. Heath and Huntington’s claims set forth
in this appeal are meritorious. The trial court’s reversal of the order granting them a new trial is
affirmed.
Docket No. 294710
Following the trial, the jury returned a verdict in favor of Dr. Nielsen, indicating that he
was not professionally negligent in this matter. Thereafter, Dr. Nielsen filed a motion arguing
that he was entitled to prevailing party costs under MCR 2.625, as well as case evaluation
sanctions under MCR 2.403(O)(6). The trial court denied the motion. First, the court held that
Dr. Nielsen was not entitled to case evaluation sanctions in this case involving multiple parties
because plaintiff obtained an aggregate verdict more favorable than the case evaluation award.
Second, the court held that, although Dr. Nielsen was a prevailing party, an award of costs under
MCR 2.625(B)(3) is discretionary. The court noted that all defendants were represented by the
same attorney and insurance company and defended against the same theory of liability.
Because plaintiff was entitled to prevailing party costs against Dr. Heath and Huntington, an
award of costs to Dr. Nielsen would have the effect of negating plaintiff’s award of prevailing
party costs. Thus, the request for taxable costs was denied.
On appeal, Dr. Nielson argues that the trial court abused its discretion by denying his
request for prevailing party costs under MCR 2.625. We disagree. A trial court’s decision on a
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motion for prevailing party costs under MCR 2.625 is reviewed for an abuse of discretion.
Mason v City of Menominee, 282 Mich App 525, 530; 766 NW2d 888 (2009).
MCR 2.625(A)(1) provides that, in general, costs will be allowed to the prevailing party
in an action unless the court directs otherwise for reasons stated in writing and filed in the case.
MCR 2.625(B)(3) pertains to actions with several defendants and provides:
If there are several defendants in one action, and judgment for or dismissal of one
or more of them is entered, those defendants are deemed prevailing parties, even
though the plaintiff ultimately prevails over the remaining defendants.
In this case, the trial court denied the motion for prevailing party costs, although it found
that Dr. Nielsen was a prevailing party. Plaintiff was also a prevailing party against Dr. Heath
and Huntington. The trial court properly set forth its reasons in writing for denying Dr. Nielsen’s
request for prevailing party costs. MCR 2.625(A)(1). Those reasons were that all defendants
were represented by the same attorney and insurance company with regard to the same theory of
liability; thus, the effect of awarding Dr. Nielsen prevailing party costs would be to negate the
award of prevailing party costs to plaintiff.
Dr. Nielsen argues that the trial court’s decision constituted an abuse of discretion
because it is “inappropriate” and the trial court could have apportioned taxable cost. Dr. Nielsen
cites to the case of Blue Cross & Blue Shield of Mich v Eaton Rapids Community Hosp, 221
Mich App 301; 561 NW2d 488 (1997) in support of his apportionment argument. In that case,
this Court held that: “Where the Michigan Court Rules are to be construed to secure the just,
speedy, and economical determination of every action, MCR 1.105, we have no trouble
concluding that a court may take the intermediate step of apportioning the costs allowed to a
prevailing party among the parties against whom the costs are assessed.” Id. at 314. In this case,
however, the prevailing parties were both plaintiff and only one of three defendants. Thus,
unlike the case of Blue Cross & Blue Shield of Mich, this is not a case in which there was one
prevailing party and several “parties against whom the costs are assessed.” In light of the
circumstances presented in this case and the discretionary nature of the decision, we cannot
conclude that the trial court’s decision to deny Dr. Nielsen prevailing party costs was outside the
range of principled outcomes. See Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d
809 (2006). Accordingly, we affirm the decision.
Docket No. 294896
After the trial court granted plaintiff’s motion for rehearing and reconsideration, plaintiff
filed a motion for prevailing party costs under MCR 2.625 and for case evaluation sanctions
under MCR 2.403(O)(4)(a). On October 13, 2009, the trial court entered an opinion and order
granting in part and denying in part plaintiff’s motion. The trial court held that plaintiff was
entitled to case evaluation sanctions, including taxable costs and reasonable attorney fees at a
rate of $250 an hour for both of plaintiff’s attorneys and for a total of 183.56 hours. The taxable
costs included sundry costs, some of the requested court costs, and deposition costs. Although
plaintiff had requested costs for certified court records and expert witness fees for Dr. Krell,
plaintiff did not adequately support the requests thus they were denied without prejudice.
Plaintiff was permitted to submit a supplemental brief addressing those two requests for costs.
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On October 30, 2009, Dr. Heath and Huntington filed their claim of appeal with regard to this
order. On November 6, 2009, the court entered an order denying plaintiff’s request for costs
related to certified court records, but granted plaintiff’s request for Dr. Krell’s expert witness
fees as follows: $1,000 for work performed on February 21, 2008, $1,000 for work performed
on August 11, 2008, and $1,125 for the expert’s deposition on August 11, 2008, totaling $3,125.
On appeal, Dr. Heath and Huntington argue that the trial court abused its discretion by
awarding plaintiff attorney fees at all because she rejected the case evaluation award and, further,
by awarding an unreasonable attorney fee. Dr. Heath and Huntington also argue that the trial
court abused its discretion by awarding plaintiff expert witness fees. We disagree. We review
for an abuse of discretion the trial court’s decision on a motion to tax costs under MCR 2.625.
Mason, 282 Mich App at 530.
First, Dr. Krell’s expert witness fees were awarded by order entered November 6, 2009,
and Dr. Heath and Huntington, who filed their claim of appeal on October 30, 2009, did not
appeal that order. Thus, this Court lacks jurisdiction to consider the issue whether plaintiff was
entitled to recover Dr. Krell’s expert witness fees. See MCR 7.203(A)(1). Accordingly, this
issue is not properly before this Court.
Second, Dr. Heath and Huntington argue that plaintiff is not entitled to case evaluation
sanctions because she rejected the case evaluation award. In support of their argument, they cite
to MCR 2.403(O)(6)(b) which provides:
[A] reasonable attorney fee based on a reasonable hourly or daily rate as
determined by the trial judge for services necessitated by the rejection of the case
evaluation.
Dr. Heath and Huntington claim that plaintiff cannot show that the attorney fees requested were
“necessitated” by defendants’ rejection of the award because she also rejected the award.
However, this argument has been considered and rejected by the Court on several occasions.
“Actual costs, including attorney fees, are awardable when both parties reject the award as well
as when only one does.” Haliw v City of Sterling Heights (On Remand), 266 Mich App 444,
450; 702 NW2d 637 (2005), citing Zalut v Andersen & Assoc, Inc, 186 Mich App 229, 232-234;
463 NW2d 236 (1990). Further, the language of MCR 2.403(O)(1) allows for costs, including
attorney fees, to be awarded even where there has been a mutual rejection. Therefore, this issue
is without merit.
Finally, Dr. Heath and Huntington argue that the award of attorney fees to plaintiff was
unreasonable because “[t]his case was a relatively straightforward action for medical malpractice
having been tried to a conclusion in four days. Plaintiff called only one independently retained
expert witness, and in short, the fees requested are not representative of the scope and magnitude
of the subject claim.” We disagree and note that, despite Dr. Heath and Huntington’s contention
that this was a “relatively straightforward action,” they utilized the services of two expert
witnesses and the jury did not reach its verdict until the fifth day of trial.
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In Smith v Khouri, 481 Mich 519; 751 NW2d 472 (2008), our Supreme Court held:
In determining a reasonable attorney fee, a trial court should first determine the
fee customarily charged in the locality for similar legal services. In general, the
court shall make this determination using reliable surveys or other credible
evidence. Then, the court should multiply that amount by the reasonable number
of hours expended in the case. The court may consider making adjustments up or
down to this base number in light of the other factors listed in Wood [v DAIIE,
413 Mich 573; 321 NW2d 653 (1982)] and MRPC 1.5(a). In order to aid
appellate review, the court should briefly indicate its view of each of the factors.
[Id. at 537.]
In this case, the trial court determined the fee customarily charged in Oakland County to
be $200 to $205 an hour by using a reliable survey, and then made an upward departure to $250
an hour after considering the factors set forth in Wood v DAIIE, 413 Mich 573, 588; 321 NW2d
653 (1982) and Rule 1.5(a) of the Michigan Rules of Professional Conduct. The trial court noted
that the case was “difficult because it involved two doctors who saw Plaintiff on numerous
occasions, and each visit required a separate evaluation as whether professional negligence
occurred.” After review of plaintiff’s counsel’s billing records, the trial court determined that
plaintiff’s primary attorney was entitled to compensation for 163.71 hours and plaintiff’s other
attorney was entitled to compensation for 19.85 hours. We conclude that the trial court’s
decision was within the range of reasonable and principled outcomes and, thus, was not an abuse
of discretion. See Smith, 481 Mich at 526. Accordingly, the decision is affirmed.
Affirmed. Plaintiff is entitled to costs as the prevailing party. MCR 7.219(A).
/s/ Mark J. Cavanagh
/s/ E. Thomas Fitzgerald
/s/ Karen M. Fort Hood
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