Roy Rusha v. Adam M Edelman Md, 326745

Background

Roy Rusha, an incarcerated plaintiff, alleged defendants (prison-contracted physicians/medical provider) failed to diagnose and treat his multiple sclerosis (MS) and seizure disorder while incarcerated, causing progression and neurological injury later diagnosed after release.
Defendants did not refer Rusha to a neurologist, disputed that he had MS while incarcerated, reviewed available records, and performed diagnostic tests; MS diagnosis occurred post-release and some records post-dated incarceration care.
Procedural history: plaintiff filed suit in May 2013; discovery and witness-list deadlines were repeatedly extended and missed by plaintiff; Dr. Omar Ahmad (post-incarceration treating neurologist) was disclosed late and not on plaintiff’s witness list as an expert.
Trial court excluded Dr. Ahmad from testifying as an expert (allowed him as a fact witness) for untimely expert disclosure, then treated the claim as a "lost opportunity" case and granted summary disposition for defendants for failure to prove >50% lost chance under MCL 600.2912a(2).
The Court of Appeals affirmed the exclusion of Dr. Ahmad as an expert (no abuse of discretion given plaintiff’s pattern of tardiness) but held the trial court erred in treating the claim as a lost-opportunity case rather than a traditional medical-malpractice claim alleging actual injury; vacated summary disposition and remanded for further proceedings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court properly excluded Dr. Ahmad as an expert for untimely disclosure	Rusha: defendants knew of Ahmad, cancelled his deposition, and exclusion was unfair; Ahmad should testify as an expert	Defendants: Ahmad was not timely disclosed; prejudice and discovery violations justify exclusion	Court: exclusion of Ahmad as expert affirmed; permitting him as fact witness was within trial court’s discretion given plaintiff’s repeated tardiness
Whether the claim is a "lost opportunity" claim subject to MCL 600.2912a(2) (>50% lost chance requirement)	Rusha: alleged direct, concrete injury (worsening MS and seizures) from defendants’ negligence — a traditional malpractice claim, not lost-chance	Defendants: framed the claim as lost-opportunity to achieve better result, arguing plaintiff cannot meet statutory >50% threshold	Court: trial court erred treating the case as a lost-opportunity claim; Rusha alleged actual injury and traditional malpractice; vacated summary disposition
Whether defendants alternatively showed plaintiff could not prove proximate causation without Ahmad’s expert testimony	Rusha: other experts and records create factual disputes about causation and harm	Defendants: remaining experts (non-neurologists) offered equivocal testimony and cannot establish causation	Court: declined to resolve on appeal; remanded for trial court to address on remand (may permit additional discovery/briefing)
Whether the trial court adequately considered sanctions alternatives under MCR 2.401 and case law	Rusha: trial court failed to make detailed findings and consider lesser sanctions	Defendants: plaintiff repeatedly missed deadlines; sanction justified	Held: trial court’s limited explanation was adequate here; exclusion as expert but allowance as fact witness was not an abuse of discretion given circumstances

Key Cases Cited

Maiden v. Rozwood, 461 Mich. 109, 597 N.W.2d 817 (standard for summary disposition review)
People v. Gursky, 486 Mich. 596, 786 N.W.2d 579 (abuse-of-discretion standard for evidentiary rulings/legal admissibility)
Herald Co., Inc. v. Eastern Mich. Univ. Bd. of Regents, 475 Mich. 463, 719 N.W.2d 19 (abuse-of-discretion review and principled-range standard)
Grubor Enters., Inc. v. Kortidis, 201 Mich. App. 625, 506 N.W.2d 614 (purpose of witness lists; whether case can be proved without late expert)
Dean v. Tucker, 182 Mich. App. 27, 451 N.W.2d 571 (untimely witness disclosure alone insufficient to bar testimony; factors to consider)
Duray Dev. LLC v. Perrin, 288 Mich. App. 143, 792 N.W.2d 749 (nonexhaustive factors for sanctions for discovery/witness-list violations)
Compton v. Pass, 485 Mich. 920, 733 N.W.2d 664 (distinguishing lost-chance claims from traditional malpractice)
Stone v. Williamson, 482 Mich. 144, 753 N.W.2d 106 (discussion of medical-malpractice causation theories)
In re Traub Estate, 354 Mich. 263, 92 N.W.2d 480 (substance-over-form principle in pleading/claims)
Wilcox v. Moore, 354 Mich. 499, 93 N.W.2d 288 (same principle)