Opinion
357207
11-03-2022
LC No. 18-010381-NH
Kathleen Jansen Presiding Judge, Colleen A. O'Brien, Noah P. Hood Judges
ORDER
In an opinion and order dated July 21, 2022, this Court remanded this case, while retaining jurisdiction, for the trial court to clarify its July 7, 2020 order allowing plaintiff to amend his witness list to add a new expert. The trial court issued an opinion and order in accordance with its remand instructions on October 7, 2022. With that clarification in hand, we now affirm.
The issue in this case arose after plaintiff's original expert was found not qualified to provide the necessary testimony to sustain his claims against the defendant doctors, leading plaintiff to move to amend his witness list to add a new expert. In granting plaintiff's motion, the trial court stated that the new expert "may be added as a pediatric expert as to standard of care and causation relating to the possible vicarious liability of the hospital only." Defendants asked the trial court to clarify whether its statement that the new expert was allowed to testify as to the standard of care "of the hospital only" precluded the expert from testifying about the defendant doctors' standard of care, as the order implied. The trial court refused to clarify its order, however, eventually leading this Court to remand this case for the trial court to do so.
In its October 7, 2022 order on remand, the trial court stated that the "proper interpretation" of its statement in the July 7, 2020 order adding the new expert "as a pediatric expert as to standard of care and causation relating to the possible vicarious liability of the hospital only" was that the new expert was added as a pediatric expert "as to standard of care of the doctors involved only, not as to that of the nursing staff of the hospital."
In its October 7, 2022 opinion and order, the trial court noted that it "would have been an unfortunate shortcoming" if this Court did not review a ruling that the trial court had issued on April 28, 2021, as that ruling "may have provided important context to the [July 7, 2020] ruling and the 'hospital only' language" that led to the remand. We note that this Court indeed reviewed the trial court's April 28, 2021 ruling before it issued its opinion, as evidenced by the fact that the ruling was quoted in full in this Court's opinion. See Elkadri v Children's Hospital of Michigan, unpublished per curiam opinion of the Court of Appeals, issued July 21, 2022 (Docket No. 357207), p 3. Contrary to the trial court's belief, its April 28, 2021 ruling did not "provide[] important context" to its July 7, 2020 order, but instead compounded the confusion caused by the trial court's July 7, 2020 order (and the court's refusal to clarify that order), as explained at length in this Court's opinion. See id. at 5-7.
This "clarification" of the July 7, 2020 order renders defendants' arguments on appeal without merit. Defendants argued that the trial court's July 7, 2020 order precluded plaintiffs new expert from providing testimony against the defendant doctors. Such an argument is no longer tenable in light of the trial court's "clarification" that its July 7, 2020 order should be interpreted as allowing plaintiffs new expert to testify as a pediatric expert "as to standard of care of the doctors involved."
Defendants relatedly argued that plaintiffs claim against the defendant hospital (as the principal in plaintiffs vicarious liability claim) must be dismissed because it could not be found liable if the defendant doctors (the defendant hospital's agents in plaintiffs vicarious liability claim) were dismissed. As explained, the trial court's July 7, 2020 order as "clarified" by the trial court's October 7, 2022 order does not require that defendant doctors be dismissed. Accordingly, defendant hospital need not be dismissed for the reason argued by defendants on appeal.