Sam Ross v. Home-Owners Insurance Company

STATE OF MICHIGAN
COURT OF APPEALS
SAM G. ROSS, UNPUBLISHED
July 23, 2015
Plaintiff-Appellant,
v No. 318284
Clare Circuit Court
HOME-OWNERS INSURANCE COMPANY, LC No. 10-900148-NF
Defendant-Appellee.
Before: WILDER, P.J., and SERVITTO and STEPHENS, JJ.
PER CURIAM.
In this no-fault action for personal injury protection (PIP) benefits, defendant appeals by
right the jury verdict in favor of defendant. We affirm.
I. BACKGROUND
Plaintiff, Sam G. Ross, was a pedestrian who was struck by an automobile on May 11,
2009. At the time, plaintiff was insured under a no-fault policy issued by defendant, Home-
Owners Insurance Company. Initially, defendant paid expenses for plaintiff’s care and
rehabilitation. However, after a review of plaintiff’s claim for benefits by insurance adjustor
Heather Abreu, plaintiff was sent to multiple independent medical examiners to determine
whether the injuries he claimed benefits for were related to the accident. Based on the reports it
received, defendant terminated PIP benefits to plaintiff in February 2010. Plaintiff filed this suit
on April 9, 2010, challenging the termination.
II. STANDARD OF REVIEW
Plaintiff appeals after being denied a new trial in the trial court. This Court reviews for
an abuse of discretion a trial court's denial of a motion for a new trial. Kelly v Builder's Square,
Inc, 465 Mich. 29, 34; 632 NW2d 912 (2001). An abuse of discretion occurs when the trial
court's decision is outside the range of principled outcomes. Heaton v Benton Constr Co, 286
Mich. App. 528, 538; 780 NW2d 618 (2009).
Plaintiff argues that the trial court erred in not allowing him to mention the contents of
Dr. Douglas Foster’s report before the jury. “A trial court's discretionary decisions concerning
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whether to admit or exclude evidence will not be disturbed absent an abuse of that discretion.
When the decision involves a preliminary question of law[,] however, such as whether a rule of
evidence precludes admission, we review the question de novo.” People v Mardlin, 487 Mich.
609, 614; 790 NW2d 607 (2010) (internal quotations and footnotes omitted).
Plaintiff also argues that the trial court did not apply or interpret MCR 2.302(B)(4)(b)
correctly. “The interpretation of a court rule, like matters of statutory interpretation, is a question
of law that we review de novo.” People v Williams, 483 Mich. 226, 231; 769 NW2d 605 (2009).
III. ANALYSIS
Plaintiff’s argument on appeal is that the trial court misapplied MCR 2.302(B)(4)(b) to
prohibit him from mentioning the contents of Dr. Douglas Foster’s report to the jury. We
disagree.
MCR 2.302(B) is a general rule governing the scope of discovery in civil cases. MCR
2.302(B)(4)(b) provides:
(b) A party may not discover the identity of and facts known or opinions held by
an expert who has been retained or specially employed by another party in
anticipation of litigation or preparation for trial and who is not expected to be
called as a witness at trial, except
(i) as provided in MCR 2.311, or
(ii) where an order has been entered on a showing of exceptional
circumstances under which it is impracticable for the party seeking discovery to
obtain facts or opinions on the same subject by other means.
MCR 2.302(B)(4)(b) concerns non-witness experts. Under this rule the identity of and
information held by a non-witness expert is not discoverable unless prong (i) (MCR 2.311) or (ii)
(exceptional circumstances) applies. MCR 2.311 controls the discovery of an examining
physician’s report. In pertinent part, MCR 2.311(B)(1) provides:
If requested by the . . . person examined, the party causing the examination to be
made must deliver to the requesting person a copy of a detailed written report of
the examining physician setting out the findings, including results of all tests
made, diagnosis, and conclusions, together with like reports on all earlier
examinations of the same condition, and must make available for inspection and
examination X-rays, cardiograms, and other diagnostic aids.
The trial judge’s predecessor on this case ordered that copies of all the independent
medical reports be furnished to opposing counsel in a pre-trial order. The pre-trial summary
order indicated that the “Right to reports is reserved.” Dr. Foster was a non-witness expert under
MCR 2.302(B)(4)(b). He was retained by defendant to conduct a medical examination of
plaintiff in January 2013, nearly three years after the suit was filed. He was not on the witness
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list of either party and there is no evidence that defendant indicated that he would call Dr. Foster
at trial.
As noted, MCR 2.302(B)(4)(b) concerns only the discovery of information held by non-
witness experts and not the admission of the information at trial. The language of MCR
2.302(B)(4)(b) clearly states “[a] party may not discover the identity of and facts known or
opinions held by an expert.” (Emphasis added).
The trial court interpreted MCR 2.302(B)(4)(b) on two occasions. The first time was at
the jury trial during the testimony of claim representative Nate Kline and the second time was at
plaintiff’s motion hearing for a new trial. In neither case did the trial court err.
At trial the court correctly noted that there was a distinction between that which is
discoverable under MCR 2.302(B)(4)(b) and that which is admissible at trial. The decision as to
the admissibility of questions concerning the contents of Dr. Foster’s report was made based
upon the relevance of the evidence to the disputed issues of fact. Plaintiff stated he wanted to
explore whether defendant relied on Dr. Foster’s report to discontinue benefits or as new
information to reopen plaintiff’s benefits case. Therefore, the court initially limited the scope of
plaintiff’s cross-examination of Kline to asking Kline “which [independent medical
examinations] were used to make a decision regarding the stopping of benefits.” The court noted
that the scope of any further questioning would be based upon the response to the first question.
“If Mr. Foster’s [report] was not part of that decision then it’s not going to be gone into but if the
insurance company did consider it as part of their decision then I’m gonna (sic) allow him to go
into it.”
It is within a trial court’s discretionary authority to limit the scope of cross-examination.
Persichini v William Beaumont Hospital, 238 Mich. App. 626, 632; 607 NW2d 100 (1999).
Relevance is a crucial focus for the exercise of this discretion. Relevant evidence is
“evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” MRE 401. Plaintiff’s stated reason at trial for use of Dr. Foster’s report was that he
was “entitled to explore what [defendant] relied on in in [sic] discontinuing benefits or new
information where [defendant] could open up benefits again.” When Kline answered that he was
not the claims representative who terminated plaintiff’s benefits, the contents of Dr. Foster’s
report became irrelevant to further questioning of that witness.
Plaintiff argues that he should have been able to question Heather Abreu, the claims
representative who terminated plaintiff’s benefits, concerning the contents of Dr. Foster’s report.
While plaintiff’s brief offers no citations to the record, we assume he argues that his cross-
examination was erroneously limited. The trial court “may limit cross-examination with respect
to matters not testified to on direct examination” and to matters that are relevant to issues in the
case. MRE 611(c). On direct examination, Abreu stated that she had reversed decisions to
terminate benefits before, after receiving a copy of another doctor’s examination report, when
the plaintiff’s doctor provided new information. There is no record of Dr. Vanderbrook
providing new information to Abreu after she received the examination reports of other doctors.
Also, when plaintiff’s counsel referred to Dr. Foster’s report specifically, Abreu rejected the
notion that such an exam would be new information. She instead testified, “that any examination
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that would be done during [litigation] would probably be done for an entirely different reason.”
Thus, the court did allow some questioning of the witness but continued to limit questions as to
the exact content of the report. The report itself is hearsay for which no exception has been
offered. We cannot find this limitation to be an abuse of discretion.
The trial court interpreted MCR 2.302(B)(4)(b) again at the hearing for plaintiff’s motion
for a new trial. There, the court correctly stated that Dr. Foster was a non-witness expert and that
the court rule was a rule of discovery. The court later applied the discovery rules to questions of
admissibility of the report and Dr. Foster himself. We find the court’s interpretations of MCR
2.302(B)(4)(b) as to admissibility to be harmless error. The interpretations came post-trial and
therefore had no effect on the jury verdict. Heshelman v Lombardi, 183 Mich. App. 72, 85; 454
NW2d 603 (1990).
Finally, the court’s decision to deny plaintiff’s motion for a new trial was not based on its
interpretation of MCR 2.302(B)(4)(b), but rather on the fact that plaintiff’s case was not
prejudiced by the court’s earlier ruling to not allow plaintiff to mention the contents of Dr.
Foster’s report. We note that the report was mentioned by plaintiff and that we have found no
abuse of discretion in the trial court’s limitation of questioning. Under MCR 2.611(A)(1), in an
action tried by jury, plaintiff is required to show the error materially affected his substantial
rights. We have found no error. Further, plaintiff’s statement of questions only addresses the
MCR 2.302(B)(4)(b) issue so we need not examine the correctness of the denial of the Motion
for New Trial further.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Deborah A. Servitto
/s/ Cynthia Diane Stephens
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