Opinion
No. 349818
06-11-2020
ROCHELLE RUHL, Plaintiff-Appellant, v. GARY FANNON, Defendant-Appellee, and SUSAN FEDEWA, D.O., and MEMORIAL HEALTHCARE, Defendants.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Shiawassee Circuit Court
LC No. 18-002821-NH Before: CAMERON, P.J., and BOONSTRA and LETICA, JJ. PER CURIAM.
Plaintiff-appellant Rochelle Ruhl appeals the trial court's order granting defendant-appellee Gary Fannon's motion for reconsideration and granting summary disposition in favor of Fannon. We reverse and remand for proceedings consistent with this opinion.
I. RELEVANT FACTS AND PROCEDURAL BACKGROUND
On January 1, 2016, a fireplace insert fell on Ruhl's left hand. Later that day, Ruhl went to the emergency department at Memorial Healthcare, where Fannon was working as a physician's assistant. Fannon took Ruhl's history, examined her injuries, and ordered x-rays of her left hand. After reviewing the x-ray films, Fannon determined that Ruhl's middle finger and index finger were fractured. He called the on-call orthopedic surgeon, Dr. Michael Schmidt, who was not present in the hospital. Fannon asked Dr. Schmidt to review the x-ray films and informed Dr. Schmidt of "the circumstances surrounding" Ruhl's injuries, which included "the mode of injury" and what he noticed during his physical examination. According to Fannon, Dr. Schmidt reviewed the x-ray films remotely and then instructed Fannon to clean and suture the wounds and to put a brace on Ruhl's fingers. Dr. Schmidt also instructed Fannon to have Ruhl follow up with Dr. Schmidt at his office at Mid-Michigan Orthopedics. Fannon complied with Dr. Schmidt's instructions.
On January 5, 2016, Ruhl had an appointment at Mid-Michigan Orthopedics. It was determined that Ruhl required surgery because the fracture in her middle finger was "in the joint." Dr. Schmidt referred Ruhl to a hand surgeon. On January 12, 2016, Dr. William Truluck, II, began treating Ruhl. Because of alleged nerve and tendon damage, Dr. Truluck amputated Ruhl's left middle finger on January 27, 2016. Dr. Truluck opined that if Ruhl's injuries had been "described accurately," "she would have received orthopedic care within 24 hours of her injury and more likely than not she would have had a more favorable outcome including functional use of her middle finger."
In July 2018, Ruhl filed a medical malpractice claim. In relevant part, Ruhl alleged that if Fannon had properly diagnosed the tendon and nerve injuries and adequately described the injuries to Dr. Schmidt, Ruhl would have received prompt medical care and amputation of her middle finger would not have been necessary. Fannon answered the complaint and generally denied liability. Discovery commenced.
Memorial Healthcare and Dr. Susan Fedewa were also named as defendants. However, the parties later stipulated to dismissing them from the action.
Fannon filed a motion for summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact), arguing that Ruhl could not establish causation because Lisa Paitsel, Ruhl's standard of care expert, testified that it was proper for Fannon to consult with Dr. Schmidt, and that Dr. Schmidt had sufficient information to suspect that Ruhl had nerve and tendon injuries. Fannon further argued that Paitsel testified that it was up to Dr. Schmidt to determine the next course of action with respect to Ruhl's treatment. Ruhl opposed Fannon's motion for summary disposition, arguing that genuine issues of material fact existed for trial. To support this contention, Ruhl argued that Paitsel testified that, because Fannon failed to conduct a thorough assessment of the injuries and failed to properly describe the severity of the injuries to Dr. Schmidt, Dr. Schmidt was not aware of the extent of the injuries and, as a result, Ruhl was not provided timely care and her middle finger had to be amputated. To support this argument, Ruhl relied on the affidavits of Dr. Michael Brin and Dr. Truluck. Fannon thereafter filed a reply brief, arguing that Dr. Schmidt was deposed after Fannon filed his motion for summary disposition. Fannon alleged that Dr. Schmidt testified at the deposition that, even if he had personally examined Ruhl on January 1, 2016, he would not have changed his course of treatment. Thus, Fannon argued that he was not the "cause in fact" of Ruhl's injuries.
After hearing oral argument, the trial court rendered its ruling from the bench. In relevant part, the trial court stated that, although Dr. Schmidt testified that he would not have changed his course of treatment even if he had personally examined Ruhl's injuries, Dr. Brin averred that Ruhl's diagnosis and treatment would not have been delayed if not for Fannon's professional negligence. The trial court found that, because there were two competing medical opinions concerning causation, a genuine issue of material fact existed for trial. Thereafter, the trial court entered an order, denying Fannon's motion for summary disposition "for the reasons stated on the record."
Fannon moved for reconsideration from the trial court's decision to deny his motion for summary disposition. Although Fannon's motion largely reiterated the arguments contained in the original motion and reply brief, Fannon also argued that the opinions of Ruhl's experts were not admissible because the opinions were contrary to Dr. Schmidt's testimony that his course of treatment would not have changed even if he had been provided with additional information. Fannon further argued that the trial court committed palpable error by relying on Dr. Truluck and Dr. Brin's affidavits given that they could not provide standard of care testimony at trial. Fannon argued that Paitsel, who was Ruhl's only expert qualified under MCL 600.2169(1) to provide testimony concerning the standard of care, was not sufficient to overcome Fannon's motion for summary disposition. In response, Ruhl argued that Fannon was improperly attempting to present new arguments in his motion for reconsideration and was conflating standard of care with causation. Ruhl also argued that, because genuine issues of material fact existed for trial, the trial court should deny Fannon's motion for reconsideration.
In a June 26, 2019 opinion and order, the trial court granted Fannon's motion for reconsideration and held that it was proper to grant Fannon's motion for summary disposition under MCR 2.116(C)(10). In so holding, the trial court noted that Dr. Schmidt testified that Fannon had provided him with sufficient information such that he did not believe that any additional information, including physically examining Ruhl's injuries himself, would have changed his course of treatment. The trial court held that, based on Dr. Schmidt's "uncontradicted testimony," Ruhl could not "establish that the outcome of her treatment would have changed but for [Fannon's] conduct." This appeal followed.
II. STANDARDS OF REVIEW
"This Court reviews de novo a trial court's grant of summary disposition under MCR 2.116(C)[(10)] . . . ." McLean v Dearborn, 302 Mich App 68, 72; 836 NW2d 916 (2013). In reviewing a grant of summary disposition under MCR 2.116(C)(10), this Court considers the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party. Sallie v Fifth Third Bank, 297 Mich App 115, 117-118; 824 NW2d 238 (2012) (quotation marks and citation omitted). Summary disposition is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10); Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008).
Courts may not assess credibility or make factual findings when deciding a motion for summary disposition under MCR 2.116(C)(10). White v Taylor Distrib Co, 482 Mich 136, 142-143; 753 NW2d 591 (2008). Furthermore, summary disposition is improper when a trier of fact could reasonably draw an inference in the plaintiff's favor:
It is a basic proposition of law that determination of disputed issues of fact is peculiarly the jury's province. Even where the evidentiary facts are undisputed, it is improper to decide the matter as one of law if a jury could draw conflicting inferences from the evidentiary facts and thereby reach differing conclusions as to
ultimate facts. [Nichol v Billot, 406 Mich 284, 301-302; 279 NW2d 761 (1979) (citations omitted).]
A trial court's decision to grant or deny a motion for reconsideration is reviewed for an abuse of discretion. Woods v SLB Property Mgmt, 277 Mich App 622, 629-630; 750 NW2d 228 (2008). The issue of whether a motion for reconsideration was filed in contravention of MCR 2.119(F) is a question of law and such questions are reviewed de novo. In re Brown, 229 Mich App 496, 500; 582 NW2d 530 (1998). The determination of whether a party has been afforded due process is a question of law that is generally subject to de novo review on appeal. Elba Twp v Gratiot Co Drain Comm'r, 493 Mich 265, 277; 831 NW2d 204 (2013).
III. ANALYSIS
Ruhl first argues that the trial court erred as a matter of law and violated her due process right to be heard when deciding Fannon's motion for reconsideration. Specifically, Ruhl argues that the trial court relied on and decided "new arguments" when holding that the testimony of Ruhl's causation experts was inadmissible under MCL 600.2169(1) and that the trial court did not hold oral argument before issuing its ruling.
We disagree that the trial court relied on new arguments when granting Fannon's motion for reconsideration. At no point in the June 26, 2019 opinion and order did the trial court engage in any sort of analysis concerning the admissibility of Dr. Brin and Dr. Truluck's expert testimony. Rather, as discussed later in this opinion, it appears that the trial court disregarded their affidavits and based its decision solely on the testimony of Dr. Schmidt because the trial court determined that his testimony was more credible. Although this was improper, there is nothing in the opinion and order that would support that the trial court determined that Dr. Brin and Dr. Truluck's testimony was not admissible under MCL 600.2169(1). Therefore, Ruhl's argument that the trial court improperly considered and decided new arguments concerning the admissibility of Dr. Truluck and Dr. Brin's testimony when deciding the motion for reconsideration is not supported by the record.
Indeed, it would have been entirely improper for the trial court to engage in any sort of MCL 600.2169(1) analysis with respect to Dr. Brin and Dr. Truluck because they were not standard of care experts. See Woodard v Custer, 476 Mich 545, 558 n 4; 719 NW2d 842 (2006) ("MCL 600.2169(1) only applies to expert testimony on the appropriate standard of practice of care; it does not apply to other kinds of expert testimony, such as expert testimony on causation.").
Next, Ruhl argues that, because the trial court did not err when it concluded that a question of fact existed as to causation when deciding Fannon's original motion for summary disposition, the trial court abused its discretion by granting Fannon's motion for reconsideration and erred by entering judgment as a matter of law in favor of Fannon. We agree.
A "plaintiff in a medical malpractice action bears the burden of proving: (1) the applicable standard of care, (2) breach of that standard by defendant, (3) injury, and (4) . . . causation between the alleged breach and the injury." Cox v Bd of Hosp Managers for the City of Flint, 467 Mich 1, 10; 651 NW2d 356 (2002) (quotation marks omitted). Failure to establish any one of these four elements is fatal to a plaintiff's medical malpractice suit. Id.
Proof of causation requires both cause in fact and proximate cause. Haliw v Sterling Hts, 464 Mich 297, 310; 627 NW2d 581 (2001). A defendant's negligence must be found to be the factual cause of the plaintiff's injuries before it can be found to be the proximate cause of his injuries. Craig v Oakwood Hosp, 471 Mich 67, 87; 684 NW2d 296 (2004). Cause in fact requires that the harmful result would not have come about but for the negligent conduct. Haliw, 464 Mich at 310. Cause in fact may be established by circumstantial evidence, but such proof must be subject to reasonable inferences and not mere speculation. Skinner v Square D Co, 445 Mich 153, 163-164; 516 NW2d 475 (1994). Evidence of causation is sufficient if the jury may conclude that, more likely than not, but for the defendant's conduct the plaintiff's injuries would not have occurred, even if other plausible theories have evidentiary support. Wilson v Alpena Co Rd Comm, 263 Mich App 141, 150; 687 NW2d 380 (2004). Normally, the existence of cause in fact is a question for the jury to decide, but if there is no issue of material fact, the question may be decided by the court. Genna v Jackson, 286 Mich App 413, 418; 781 NW2d 124 (2009). However, failure of causation is rarely an appropriate ground for summary disposition under MCR 2.116(C)(10). Nichols v Dober, 253 Mich App 530, 532; 655 NW2d 787 (2002).
In this case, Paitsel testified that Fannon breached the relevant standard of care by failing to diagnose Ruhl's nerve and tendon injuries and by failing to describe the extent of Ruhl's injuries to Dr. Schmidt. Dr. Brin and Dr. Truluck's affidavits support that the amputation of Ruhl's finger was directly related to Fannon's breaches of the standard of care. Although Dr. Schmidt testified that he did not believe that his course of treatment would have changed even if he had physically examined Ruhl's injuries himself and if Fannon had provided him with additional information, Ruhl argues that Dr. Schmidt's testimony merely created a genuine issue of material fact and that it was within the province of the jury to weigh and determine the credibility of Dr. Schmidt's testimony. We agree.
Trial courts are not permitted to make credibility determinations when deciding motions for summary disposition under MCR 2.116(C)(10). White, 482 Mich at 142-143. Rather, a bedrock legal principle instructs that "the jury is free to credit or discredit any testimony." Kelly v Builders Square, Inc, 465 Mich 29, 39; 632 NW2d 912 (2001). In Strach v St John Hosp Corp, 160 Mich App 251, 271; 408 NW2d 441 (1987) (citation omitted), this Court held that a jury could disregard a physician's unrebutted testimony, reasoning that "a jury may disbelieve the most positive evidence even when it stands uncontradicted, and the judge cannot take from them their right of judgment." Two other medical malpractice cases make the same point.
In Martin v Ledingham, 282 Mich App 158, 159; 774 NW2d 328 (2009), rev'd 488 Mich 987 (2010), the trial court granted summary disposition in favor of the defendant hospital after finding that the plaintiff failed to show that the nursing staff's failure to report her worsening condition to physicians had any effect on her treatment. In reaching this conclusion, the trial court relied on the affidavits of Drs. Jeffrey Beaudoin and David Rynbrandt, who averred that they would not have changed the plaintiff's course of treatment even if the nurses had informed them of the plaintiff's worsening condition. Id. at 159-160. On appeal, the plaintiff argued that "summary disposition was inappropriate because she had produced evidence showing that, had the nurses properly reported, a notified doctor would have had the duty to change [the] plaintiff's treatment." Id. at 160. The plaintiff further argued that Dr. Rynbrandt and Dr. Beaudoin's affidavits "involved issues of credibility and state of mind and that summary disposition was inappropriate in light of those issues." Id. This Court disagreed and provided the following rationalization:
As cause-in-fact evidence, [the] plaintiff presented deposition testimony from both a doctor and a nurse suggesting that the standard of care required defendant nurses to provide earlier and better reports regarding [the] plaintiff['s] postsurgical condition, both to the operating surgeon and up the chain of command beyond that physician if no appropriate action was taken. The doctor further testified that, had that occurred, a different course of treatment should have been undertaken that would have prevented or mitigated [the] plaintiff's injuries.
This evidence is insufficient to create a genuine issue on factual causation because it only concerned what hypothetical doctors should have done had better reports been provided. In contrast to that, the real doctors involved with [the] plaintiff['s] care testified about what they would actually have done had they received the nurse reports [the] plaintiff claims should have been made. Dr. Rynbrandt, who had performed the surgery on [the] plaintiff, was aware of postsurgical complications shortly thereafter and took steps to address them. [The] [p]laintiff's claim is that [the] defendant nurses should have done more to inform Rynbrandt about further developments in the complications. However, in his affidavit, Rynbrandt repeatedly stated that he had ample information regarding [the] plaintiff and her situation throughout the period during which [the] plaintiff alleges care was deficient, that he reviewed [the] plaintiff's chart and was otherwise adequately apprised of developments, and that nothing the nurses could have done differently would have altered the care that he provided [the] plaintiff. [Id. at 161-162 (footnote omitted).]
The Martin Court also determined that there was no factual support for the plaintiff's claim that she would have received better treatment if the nurses had "gone up the chain of command[.]" Id. at 162. This Court reasoned that Dr. Beaudoin was the chair of the general surgery department and had authority over Dr. Rynbrandt, and that Dr. Beaudoin's affidavit indicated that he would not have altered the plaintiff's treatment even if he had been summoned sooner, and regardless of the plaintiff's contention that the nurses should have done so. Id. at 163. Thus, this Court concluded that the trial court properly determined that the evidence did not show that the nurses' alleged negligence was a cause in fact of the plaintiff's injuries. Id.
The plaintiff appealed to our Supreme Court. In lieu of granting leave to appeal, our Supreme Court reversed this Court's judgment and remanded to the trial court for entry of an order denying the defendant's motion for summary disposition. In doing so, our Supreme Court stated:
Because the plaintiff's expert witness testified at his deposition that, if the nurses had timely informed the treating physician of the plaintiff's deteriorating condition, the standard of care would have required the treating physician to treat the plaintiff differently than he did, while the treating physician averred in his affidavit that he would not have treated the plaintiff any differently than he did even
if the nurses had timely informed him of the plaintiff's deteriorating condition, a question of material fact exists that must be resolved by a jury. That is, having presented expert testimony regarding the treatment that the plaintiff, pursuant to the standard of care, should have received in the first 72 hours postsurgery, the treating physician's averment that he would have acted in a manner contrary to this standard of care presents a question of fact and an issue of credibility for the jury to resolve. [Martin, 488 Mich at 987-988.]
In Ykimoff v WA Foote Mem Hosp, 285 Mich App 80; 776 NW2d 114 (2009), this Court addressed a similar situation. In Ykimoff, the defendant hospital appealed the trial court's judgment in favor of the plaintiff "following the trial court's denial of its motion for a new trial or for judgment notwithstanding the verdict[.]" Id. at 82. The defendant hospital argued that the plaintiff did not establish proximate cause because Dr. David Eggert, the treating physician, testified that he would not have intervened sooner even if the nursing staff had contacted him regarding the plaintiff's changed condition. Id. at 88. The Ykimoff Court concluded that Dr. Eggert's assertion that he would not have altered the course of treatment even if he had been informed of the plaintiff's changed condition "was speculative at best and self-serving at worst." Id. at 91. This Court reasoned that discrepancies in Dr. Eggert's testimony and the immediacy of his initiation of surgery after arriving at the hospital rendered suspect his claim that he would not have intervened sooner if he had been adequately informed. Id. at 91-93. Thus, because a question of fact existed for the jury concerning causation, the Ykimoff Court held that the trial court did not err by denying the defendant's motion for a new trial or for judgment notwithstanding the verdict. Id. at 94.
In this case, when viewing the evidence in a light most favorable to Ruhl, the evidence supports that Fannon failed to diagnose Ruhl's nerve and tendon injuries and that, as a result, he could not adequately describe the extent of Ruhl's injuries to Dr. Schmidt. Like the defendants in Martin and Ykimoff, Fannon has presented evidence to support that Dr. Schmidt would not have altered his course of treatment even if Fannon had provided him with additional information concerning Ruhl's injuries. However, like the testimony in Ykimoff, Dr. Schmidt's testimony was speculative and hypothetical given that we fail to see how Dr. Schmidt could categorically deny that any additional information would not have changed his course of treatment, particularly in light of the outcome and the expert testimony presented by Ruhl. Indeed, Dr. Schmidt did not do so, and instead equivocally stated that he did not believe that he would have changed his course of treatment. This equivocation supports our conclusion that there were questions of fact and credibility for the jury. Furthermore, because Dr. Schmidt continued to work for Memorial Healthcare, which was initially named as a defendant and was Fannon's employer, Dr. Schmidt's testimony could be viewed as self-serving.
Unlike in Martin, there is no evidence before this Court as to what a reasonable orthopedic surgeon would have done if presented with the x-ray films and information that Ruhl had tendon and nerve injuries. Although Dr. Truluck's affidavit implies that the standard of care would require treatment within 24 hours, Dr. Truluck does not go so far as to offer a standard of care opinion as to an orthopedic surgeon. Even so, Ruhl has presented evidence from which a reasonable factfinder could conclude, more likely than not, that Fannon's alleged breaches of the standard of care resulted in the delayed diagnosis and treatment of Ruhl's injuries. Specifically, Paitsel testified that tendon injuries typically need to be repaired within 24 to 48 hours. Additionally, Dr. Brin and Dr. Truluck both averred that, if Fannon had recognized the nerve and tendon injuries and accurately described the injuries to Dr. Schmidt, more likely than not, Ruhl would have been treated in a timely manner and she would not have required amputation of her finger.
However, Fannon argues on appeal that we cannot consider Dr. Brin and Dr. Truluck's opinions because their testimony conflicts with "established facts," i.e. that Dr. Schmidt would not have changed his course of treatment even if Fannon had provided him with more information or he had personally examined Ruhl on January 1, 2016. We disagree.
This Court has previously explained that an expert's opinion is objectionable when "based on assumptions that [does] not accord with the established facts." Green v Jerome-Duncan Ford, 195 Mich App 493, 499; 491 NW2d 243 (1992), citing Thornhill v Detroit, 142 Mich App 656, 658; 369 NW2d 871 (1985). In Thornhill, the plaintiff alleged that her decedent died as a result of emergency medical service's failure to keep the decedent's throat clear while transporting him to the hospital. Id. at 657. The plaintiff's proposed expert suggested that the decedent likely "died after aspirating his vomitus[.]" Id. at 658. This opinion was based on the expert's belief that the decedent began frothing at the mouth after the emergency medical team arrived. Id. at 658, 659-661. However, the only eyewitnesses indicated that the frothing began before the team's arrival. Id. at 660-661. Based on the witnesses' testimony, this Court affirmed the trial court's exclusion of the proposed opinion because it lacked a sufficient factual basis. Id. at 661.
In Badalamenti v William Beaumont Hosp-Troy, 237 Mich App 278, 281; 602 NW2d 854 (1999), the plaintiff alleged that the defendant negligently failed to diagnose and properly treat the plaintiff's cardiogenic shock. The defendant asserted that the plaintiff did not suffer from cardiogenic shock; rather, the defendant alleged that the plaintiff suffered from a severe adverse reaction to a medication administered in the emergency department. Id. at 282.
The plaintiff's expert testified that three definitive hemodynamic measurements were necessary to diagnose cardiogenic shock, and that cardiogenic shock involves "significant damage to the heart's pumping action." Id. at 286-287. The expert acknowledged that the plaintiff's objective hemodynamic measurements did not support a finding of cardiogenic shock, but continued to opine that the plaintiff suffered from cardiogenic shock based upon his skepticism of an echocardiogram performed by another physician during the plaintiff's treatment. Id. However, the physician who performed the echocardiogram testified that he observed the pumping function of the plaintiff's heart while the echocardiogram was in process and determined that the plaintiff's ventricular function was essentially normal, which would rule out a diagnosis of cardiogenic shock. Id. at 287-288.
This Court held that the opinion offered by the plaintiff's expert regarding the plaintiff's alleged cardiogenic shock was not supported by legally sufficient evidence. Id. at 288-289. Specifically, this Court explained, "an expert's opinion is objectionable where it is based on assumptions that are not in accord with the established facts." Id. at 286. "This is true where an expert witness' testimony is inconsistent with the testimony of a witness who personally observed an event in question, and the expert is unable to reconcile his inconsistent testimony other than by disparaging the witness' power of observation." Id. The Badalamenti Court noted that the plaintiff's expert conceded that "on the basis of the information in the record, a competent cardiologist might logically conclude that [the] plaintiff did not have cardiogenic shock," and that an adverse reaction to the medication administered by the emergency department could not be ruled out. Id. at 289. Because the plaintiff's expert relied only on his disparagement of findings reached by the physician who performed the plaintiff's echocardiogram, this Court determined that the expert's opinion was not sufficient to establish that the plaintiff actually suffered from cardiogenic shock, which was essential to the plaintiff's cause of action. Id.
Fannon argues on appeal that this case is analogous to Thornhill and Badalamenti. However, unlike in Thornhill and Badalamenti, Dr. Brin and Dr. Truluck's opinions are not derived from assumptions that are contradicted by established facts, such as eyewitness testimony of when Ruhl sustained the alleged tendon and/or nerve injuries or Dr. Schmidt's personal observation of "an event in question." Rather, after reviewing Ruhl's medical records, Dr. Brin and Dr. Truluck were critical of Fannon's failure to properly diagnose Ruhl's injuries and then properly convey the diagnoses so that Ruhl could receive proper and timely care. Thus, unlike in Thornhill and Badalamenti, Dr. Brin and Dr. Truluck's opinions were based on their objective findings, which were derived from Ruhl's medical records. Because Dr. Brin and Dr. Truluck's opinions are not contradicted by established facts, it is proper for this Court to consider their opinions when determining whether the trial court properly granted judgment as a matter of law in favor of Fannon. See e.g., Robins v Garg (On Remand), 276 Mich App 351, 362-363; 741 NW2d 49 (2007) (holding that a proposed expert opinion was admissible because it arose from his disagreement "with the medical examiner's interpretation of the findings given, in part, the decedent's clinical presentation," rather than the actual objective findings of the autopsy).
In sum, we conclude that a question of fact exists concerning causation and that Dr. Schmidt's testimony that he did not believe that he would have altered his course of treatment is an issue of credibility for the jury to resolve. Because the trial court properly determined that a genuine issue of material fact existed for trial when it denied Fannon's original motion for summary disposition, the trial court abused its discretion by granting Fannon's motion for reconsideration from that decision and erred by entering judgment as a matter of law in favor of Fannon.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Thomas C. Cameron
/s/ Mark T. Boonstra
/s/ Anica Letica