Opinion
Docket No. 100428.
Decided June 10, 1988.
Theodore S. Andris, for plaintiff.
Fordney, Cady, Rusch Prine, P.C. (by Andrew W. Prine), for defendant.
Plaintiff appeals as of right from a Saginaw Circuit Court order granting defendant's motion for summary disposition. We affirm.
This medical malpractice action was filed on March 12, 1985. On December 11, 1985, the trial court entered a pretrial order requiring, inter alia, that discovery be completed within 120 days from the date of entry of the order, that the parties exchange the names and addresses of all known witnesses within twenty-one days of entry of the order and that plaintiff furnish the names and addresses of any expert witnesses to opposing counsel within twenty-one days of entry of the order.
On February 5, 1986, defendant filed a motion for an order compelling discovery. On May 28, 1986, defendant filed a motion for production of documents and imposition of sanctions.
On June 5, 1986, the parties stipulated to a six-month extension of discovery and the adjournment of mediation. Discovery was extended until December 11, 1986.
On or about February 10, 1987, defendant filed a motion for summary disposition because plaintiff had not yet submitted the name of an expert witness. Plaintiff was still not ready to name an expert witness when defendant's motion was heard on March 9, 1987, the day before trial was scheduled to commence. The trial court granted defendant's motion and dismissed plaintiff's case with prejudice, with court costs and attorney fees to be provided.
The trial court heard plaintiff's motion for reconsideration on March 19, 1987. Plaintiff argued that the reason for his delay in naming an expert witness was that he had been unable to take defendant's deposition until January 9, 1987, and that his expert was not willing to be named until he reviewed defendant's deposition. Plaintiff said that Dr. Yason formally expressed his willingness to be named as an expert witness shortly after the trial court granted defendant's motion for summary disposition. The trial court denied plaintiff's motion for reconsideration.
Our review of the entire record leads us to conclude that the trial court properly granted defendant's motion for summary disposition due to plaintiff's failure to comply with the pretrial order by naming an expert witness. Plaintiff alleged in his complaint that he began to experience pain near his left knee shortly after defendant performed a total hip replacement. Plaintiff ultimately sustained permanent femoral neuropathy, which he avers was a direct and proximate result of defendant's alleged negligence. In this case, plaintiff's claim could not possibly have been supported at trial without testimony as to the established standard of care. See Jones v Porretta, 428 Mich. 132, 152-153; 405 N.W.2d 863 (1987); Sullivan v Russell, 417 Mich. 398, 407; 338 N.W.2d 181 (1983); Lince v Monson, 363 Mich. 135, 140-141; 108 N.W.2d 845 (1961).
Nor did the trial court abuse its discretion by denying plaintiff's motion for reconsideration. Plaintiff did not demonstrate a palpable error by which the court and the parties were misled. A motion for rehearing or reconsideration which merely presents the same issues ruled on by the court will not be granted. MCR 2.119(F)(3).
We decline to assess costs or damages against plaintiff as defendant requests. Although defendant correctly argues that plaintiff's brief was nonconforming and that plaintiff failed to timely file the required transcript, we do not believe that plaintiff's appeal rises to the egregious conduct prohibited by MCR 7.216(C).
Affirmed.