*1 y Hidalgo 151 BARNETT v HIDALGO (Calendar 2). 10, 130071, 130073. January No. Argued 2007 Docket Nos. 30,May 2007. Decided Barnett, personal representative of Wapeka of the estate James B. brought malpractice Barnett, III, deceased, a action in medical O. M.D.; against Hidalgo, D. Renato Court Cesar the Oakland Circuit Shah, M.D.; Hospital; Albaran, M.D.; Crittenton and Muskesh S. undiagnosed relating an and to the decedent’s death from others corporation professional and disorder. Shah his untreated blood Corporation Hospital with and Crittenton settled and Crittenton court, O’Brien, J., plaintiff trial. The trial Colleen A. before by Hidalgo for leave to file notice of denied motions Albaran and 2.112(K). nonparty pursuant At the MCR start fault of her motion to exclude admission the court denied eventually experts’ of and admitted the affidavits affidavits merit permitted and defense counsel to of merit as substantive evidence plaintiffs experts regarding the differences cross-examine experts’ testimony. merit and the trial between the affidavits of and the entered a in favor the defendants court The found alleging appealed by right, judgment plaintiff The error thereon. merit as and in the admission of the affidavits of substantive impeachment deposition and in the of Shah’s testi- evidence use EJ., mony. Appeals, and The R.S. Court Hood Cooper, Fort JJ, agreed plaintiff trial court’s with the and reversed the Gkibbs, (2005). Supreme granted judgment. App Mich appeal. applications by Albaran and for leave (2006). joined by by opinion Chief Justice In an Justice Markman, Supreme and Justices Taylor Corrigan, Young, Weaver, Court held: admissible as substantive 1. The affidavits of merit were (C) 801(d)(2)(B) they constitute MRE evidenceunder i.e., they by party opponent, are statements which admissions or, adoption truth an or belief in their has manifested person alternatively, they are authorized statements concerning subjects listed in to make statement (1) pertaining affidavits of to such affidavits. The 600.2912d MCL [May- impeachment merit also were admissible as evidence because prior plaintiffs expert constitute inconsistent statements of the witnesses, 613, requirements meet MRE and were not offered on collateral matter. *2 obligation apportion among 2. The fact-finder’s to fault all persons joint liable is not altered the creation of and several liability malpractice in medical actions. Under MCL 600.2957 and 600.6304, generally provide which that the in a trier fact tort comparative negligence person action shall determine the of each plaintiffs injury, regardless contributed the who of whether person party, plaintiff is or been could have named as a is permitted Therefore, nonparties. to refer involvement of
jury may settling consider affidavits merit that reference a defendant. deposition improperly 3. if Even Shah’s used as substan- evidence,any
tive error was harmless because the information was jury through permissible introduced alternative and means. only. Cavanagh Justice concurred the result Reversed. dissenting, Justice would hold that was not harmless Kelly,
error to allow the unredacted affidavits of merit into evidence jury because the could have inferred that Dr. Shah had been dismissed from the lawsuit. - - Malpractice 1. Evidence Medical Affidavits of Merit. malpractice Affidavits of merit submitted with a medical complaint may be admitted as substantive evidence because by party opponent impeachment constitute admissions and as showing prior experts evidence inconsistent statements of the (MRE [C]). 613, 801[d] [2][B] and Negligence 2. Torts — — — Comparative Nonparties Dismissed Parties. provide MCL 600.2957 and 600.6304 that the trier of fact in a tort comparative negligence person action shall determine the of each plaintiffs injury, regardless who contributed to the of whether is, person been, party; or could have named as a because the jury required persons, parties is to allocate fault of all as well as nonparties, may jury regarding every alleged hear evidence involved, parties who tortfeasor has been even who have been dismissed, party permitted and a must be to refer to the involve- nonparties; ment of are not allowed to inform the nonparty about existence of settlement with a or the amount such a settlement. Opinion of - - - Depositions Hearsay. 3. Evidence Witnesses testimony deposition When a witness is available (MRE purposes inadmissible, hearsay, for substantive witness 804). III, Ash, Schwartz, Charles R. (by EC. Sommers Toth), plaintiff. Richard D. for Williams), (by Z Reid & EC. Rhonda Copeland, Grier M.D., M.D.; Hidalgo, D. D. and Cesar Hidalgo, for Cesar EC. DeGrazia, O’Connor,
O’Connor, (by & EC. Tamm Tamm), E. for and James Julie McCann O’Connor Albaran, M.D., Albaran, M.D.; and EC. Renato Renato Amicus Curiae: Lawyers Trial Asso- Michigan A. Biscup,
Thomas ciation. *3 to consider granted appeal J. leave We MARKMAN, (1) the trial court com-
the issues: whether following affidavits by admitting reversal requiring mitted error (2) evidence; and impeachment as substantive of merit re- requiring the trial court committed error whether to consider affidavits of by allowing the versal (3) defendant; settling a and merit referenced re- requiring the trial court committed error whether the a admitting deposition of versal in this case evidence. defendant as substantive settling Appeals of the Court of judgment the We reverse of these regarding each of its determinations because issue, we hold on basis Regarding the first issues. 801(d)(2)(B) (C) MRE 613 and MRE admitted as substan- of merit properly affidavits were by a they constitute admissions tive because evidence impeachment evidence party opponent, Mich Opinion they constitute inconsistent statements of prior wit- issue, Regarding nesses. second we hold on the basis of MCL 600.2957 MCL 600.6304 that were permitted to refer to involvement of nonpar- and, therefore, ties the jury could have considered the of merit a settling affidavits that referenced defendant. issue, Regarding the third we hold if that even deposition in this improperly case was used as substan- evidence, tive the error was harmless because the information alternatively through introduced other permissible means.
I. FACTS AND PROCEDURAL HISTORY In malpractice case, this medical decedent, James Barnett, III, Otha died from a rare blood disorder after undergoing gall surgery bladder performed defen- dant Dr. Renato Albaran, general surgeon at defen- dant Hospital. Crittenton After surgery, Albaran de- tected Barnett’s blood-platelet low count. The most common of a platelet cause low count after surgery (DIC) disseminated coagulation intravascular from postsurgical infection. Albaran consulted with defen- dant Shah, Dr. Muskesh hematologist, and ordered a DIC screen to rule postsurgical out infection as a cause of Barnett’s low platelet count. Shah concluded that suffering Barnett was an from exacerbation of preex- isting platelet disorder, idiopathic thrombocytopenic (ITP), purpura and not from DIC. Because there was no bleeding evidence of internal or postsurgical infection, and because he felt that Shah had provided reasonable explanation for the low platelet count, Albaran indi- cated that could discharged be after he was *4 cleared for release Shah. days being
Two after discharged hospital, from the Barnett returned complaints with disorientation. Dr. Hidalgo Barnett Bowman, attending consulted physician, William no that there were Albaran, concluded who with with problems. Bowman also consulted surgery-related a ini- Hidalgo, neurologist, Dr. who Cesar defendant At a had suffered stroke. concluded that Barnett tially with recommendation, Bowman consulted Hidalgo’s condition, a second regarding low-platelet Shah not ordered, were was but results DIC screen After a com- away. after Barnett passed received until (CT) Barnett that tomography scan indicated puterized fur- stroke, Hidalgo recommended had not suffered imaging testing, including magnetic resonance ther (MRI) evaluation, died the tests before but out Barnett suffered performed. be It turned that could disorder, thrombocy- clotting from a rare thrombotic (TTP), required that immediate blood purpura topenic untreated, If infusions and transfusions. left plasma here, always TTP nearly fatal. her of the estate of personal representative As the husband, filed a Wapeka Barnett deceased and his malpractice against medical action Albaran corporation, Hidalgo professional and his professional & alleged Oncology employer Shah and his corporation, Oakland, and Crit- Hematology Hospital, Crittenton of merit were Corporation. tenton Plaintiffs affidavits Graham; a general surgeon, Dr. signed Scott Wassermann; hematologist, neurologist, Dr. Eric and a Borson. affidavit of merit stated Dr. Rachel Graham’s take sufficient precautions that Albaran failed to discharged infection before he postsurgical prevent Barnett. affidavit merit stated Wassermann’s misdiagnosed a stroke Barnett’s condition as take Barnett was proper precautions and failed to when the MRI facility to a different medical transferred Finally, affidavit merit stated testing. Borson’s testing, further should performed should have Shah *5 Opinion of discharging stabilized Barnett him have before from the diagnosed and should TTP hospital, have and initiated treatment. trial,
Before Hospi- settled with Crittenton tal, Shah, Crittenton and Corporation, Oncology & Hematology of OaMand. Albaran filed a motion for to file leave notice of nonparty pursuant fault to MCR 2.112(K), initially the trial granted. which court When Hidalgo motion, adopted filed a similar the trial court plaintiff’s position that court inapplicable rule was cases, in medical malpractice liability remains joint several, and and Hidalgo’s denied both and Alba- ran’s motions. trial,
At testimony experts three differed from their depositions statements their and affidavits of They part merit. stated that as their preparation for trial had they hospital reviewed the depositions records and the doctors’ and that Albaran Hidalgo had violated standards of care by, among reasons, other failing to review and up follow on blood tests, failing diagnose recognize TTP Albaran Hidalgo sought that, to establish as a general surgeon neurologist and a respectively, they not could expected diagnose be which is a blood purely TTR disorder, Shah, and that the hematologist, doctor responsible for such a diagnosis. Graham con- ceded that he no longer believed that Albaran had violated the regard standard care with to protecting against postoperative However, Barnett infection. Gra- ham stated that was inexcusable that neither Albaran nor Shah had reviewed the results of Barnett’s DIC screen. In response, defense counsel examined Graham regard with to the depositions Shah, of Albaran and where both testified that had reviewed the DIC screen results. Albaran he testified that had reviewed Opinion the Court he had with results, complied the DIC screen a hematol- by requesting of care standard appropriate relied on consultation, reasonably he had and that ogy Similarly, condition. of Barnett’s Shah’s assessment Shah’s relied on reasonably that he had Hidalgo argued Bowman, attending physician, and that diagnosis consul- ordering hematology responsible had been tation. exclude the the outset of moved
At any merit for of her affidavits of experts’ admission *6 that the fact any to exclude reference to and purpose agreed remaining The defendants had settled. Shah trial. at mention the settlement they that would not deposi- agreed that Shah’s Plaintiff and Albaran also that, return, jury and not be read to the tion would of one jury deposition plaintiff would not read to testimony at in lieu of their live experts, of the defense plaintiffs affidavits The trial court admitted trial. refer- evidence, the ones including merit as substantive defense to cross- Shah, and counsel permitted ring the differences regarding experts examine trial testi- of merit and their between the affidavits defendants, in favor mony. jury found the trial trial, for a new which plaintiff filed motion denied. court that she was right, claiming appealed by
Plaintiff
of the
admission
to a new trial because
entitled
impeachment
of merit as substantive
affidavits
deposition,
the use of Shah’s
evidence, together with
agreed
of Appeals
a fair
The Court
her
trial.
denied
157,
App
Mich
judgment.
the trial
268
reversed
court’s
(2005). First,
Appeals
the Court of
163;
869
706 NW2d
of merit that
that the admission
affidavits
held
was
as a defendant
Shah and listed Shah
referenced
Stations,
Inc, 412
Payless
v
under Brewer
improper
158
II. STANDARDOF REVIEW
A trial
grant
court’s decision whether to
a new trial is
reviewed for an abuse of discretion.
Kelly Builders
*7
Inc,
(2001).
Square,
34;
29,
465 Mich
632
912
An
NW2d
abuse of discretion occurs when the decision
in
results
falling
an outcome
range
outside the
of principled
Custer,
545,
outcomes. Woodard v
557;
476 Mich
719
(2006);
NW2d 842
v
Co,
Maldonado
Ford Motor
476
(2006).
388;
372,
Mich
Opinion of the is reviewed for an abuse to evidence also decision admit 484, 488; 596 Lukity, People of discretion. (1999). the court’s However, trial when NW2d preliminary ques- a to admit evidence involves decision novo, admitting law, de of the issue is reviewed tion consti- a matter law that is inadmissible as evidence tutes an of discretion. Id. abuse
III. ANALYSIS AND IMPEACHMENT EVIDENCE A. AFFIDAVITS AS SUBSTANTIVE statement, by one the other than made Hearsay is “a hearing, at trial or offered testifying declarant while the matter to the truth of asserted.” prove in evidence 801(d) 801(c). part, provides In MRE pertinent MRE following not in the circum- hearsay that a statement is stances: (1) The declarant Prior Statement Witness. testifies subject hearing trial and is to cross-examination or (A) statement, concerning is incon- and the statement given testimony, under with the declarant’s and was
sistent subject hearing, at a or penalty peijury oath (B) proceeding, deposition, or in a or consistent with other testimony express to rebut an the declarant’s is offered charge against the of recent fabrica- implied declarant or (C) motive, one or influence or or of identi- improper tion person; perceiving made or person fication of a after (2) by The statement is Party-Opponent. Admission (A) against party party’s state- a own offered ment, representative capacity, individual or a either an guilty plea made in with a except statements connection an motor vehicle or admission a misdemeanor violation pertaining to responsibility for a civil under laws infraction (B) vehicles, the party which has motor or statement of (C) truth, adoption or in its manifested an belief party make a by person authorized statement (D) subject, concerning the statement statement *8 Opinion the of party’s agent concerning or servant a matter the within agency scope employment, during or made the relationship existence of the ....
Affidavits of merit are required accompany complaint alleging medical malpractice. MCL 600.2912d(1) provides:
Subject (2), to subsection the in an action alleging or, malpractice repre- medical if the is by attorney, attorney plaintiffs sented an the shall file with complaint signed by the an of affidavit merit a health professional attorney reasonably the who be- requirements expert lieves meets the for an witness under of certify section 2169. The affidavit merit shall that the professional health has reviewed notice and all medical supplied by records to him plaintiffs attorney or her concerning allegations contained in the notice and shall following: contain statement of of each (a) applicable The practice standard of or care. (b) professional’s opinion health applicable that the practice by standard of or care was breached the health professional facility receiving or health the notice.
(c) The actions that should have been taken or omitted facility professional the health or health in order to have complied applicable practice with the standard of care. or
(d) The manner in which the breach of standard of practice or proximate injury care was the of cause alleged in [Emphasis the notice. added.] disagree We with Court of Appeals that Borson’s affidavit of merit constitutes hearsay. inadmissible an While is affidavit merit inadmissible under MRE 801(d)(1)(A) prior as a inconsistent statement because not given “at hearing, or other proceeding, deposition,” in a an affidavit of merit nonetheless is an admissible as admission a party-opponent under 801(d)(2)(B) (C). MRE An affidavit merit in this context constitutes a sworn statement regarding the care, the health practice standard applicable standard applicable opinion professional’s *9 defendant, by was breached or care practice by the or omitted have been taken actions that should applicable with the complied in order to have defendant manner in which care, and the practice standard of or care was practice of the standard of the breach alleged. MCL injury of cause proximate 600.2912d(1). that she has
In
for
to demonstrate
plaintiff
order
to initiat-
precondition
claim and as a
malpractice
valid
file an affidavit
action,
plaintiff
required
her
was
ing
part
her
As
of
complaint.
merit
in
support
admissible
generally
an affidavit of merit is
pleadings,2
admission;3 by filing the affidavit
adoptive
an
as
court,
adoption
manifests “an
merit with the
801(d)(2)(B);
MRPC
in
truth.”4 MRE
see also
belief
its
3.3(a)(4).
case,
among
In the instant
from
the universe
experts
hired
of her own
experts, plaintiff
of potential
merit,
fully
the affidavits of
she was
choosing
prepare
in the affi-
statements made
cognizant
experts’
2
156, 164;
See,
Fiutowski,
App
e.g., Kowalski v
635 NW2d
(2001) (The
Appeals
a defendant fails to file
502
Court of
held that “when
defense,
plead.”).
an affidavit of meritorious
that defendant has failed to
3
Inc,
59, 63;
Enterprises,
App
Mich
454 NW2d
See Hunt v CHAD
183
(1990) (“statements
admissions”).
pleadings may
in
be treated as
USA, Inc,
See,
example,
for
Inc v Teva Pharmaceuticals
Pfizer
(D
2006)
NJ,
by
(expert
submitted
US Dist LEXIS 77970
affidavits
European patent application represented
support
in
of its
Institute,
admissions);
Inc,
Kreppel
Diagnostic
adoptive
v Guttman Breast
(SD
1999)
NY,
(report prepared by medical
davits, she voluntarily chose to submit particular those in affidavits of her support complaint, and she sum- moned the same experts as witnesses at trial. These steps each reflect an acceptance of the contents of the sufficient, affidavits of merit judgment, our to con- an adoption stitute or belief in their truth.5 Moreover, an affidavit of merit require satisfies the 801(d)(2)(C). ments of MRE An independent expert who is not withdrawn before trial is essentially autho rized the plaintiff to make statements regarding the 600.2912d(1)(a) subjects (d). listed by MCL through Therefore, consistent with the actual language of MRE 801(d)(2)(C), an affidavit of merit “a statement by a person authorized the party to make a statement concerning the subject. . . .”6 In the case, instant al *10 801(d)(2) We note that MRE express implied require contains no or personal knowledge ment of understanding or part on the of the plaintiff-declarant expertise of the facts underlying or medical his or her See, e.g., statement. Ctr, Mahlandt v Wild Canid Survival & Research (CA Inc, 626, 8, 1978), 588 F2d 630-631 wherein the court held that FRE 801(d)(2)(D) express implied does not contain requirement an that the personal knowledge declarant have underlying of the facts his or her statement. 6 See, example, Logging Pulp Co, Reid Bros Co v Ketchikan 699 F2d (CA 1983) 1292, 9, (report prepared 1306-1307 by employee an of a parent shareholder of company the request defendant’s at the of the chairman company of the board of the defendant’s on the basis of free company’s access all to the books and records and that was circulated to managers the officers and was an authorized statement under FRE 801[d][2][C]); (CA Wayne Corp, 777, 1980) 5, Collins v 621 F2d 781-782 (deposition expert by of investigate hired the defendant an accident report his conclusions was admissible as an admission under FRE [C], [d] [2] opportunity which the explain, defendant had the hut the deposition conclusive, judicial admission); Bank, was not a Glendale Fed (1997) States, 422, FSB v United (deposition 39 Fed Cl expert 423-425 of who was not withdrawn before party trial remains “authorized” the party-admission). and amounts to a Raymark But see contra Kirk v Industries, (CA Inc, 147, 163-164 3, 1995). 61 F3d The court held that the testimony expert of an testify witness party who is called to on behalf aof the content of though right had no to control plaintiff statements, hired the experts’ the she independent authority pre and invested them with the experts Subsequently, affidavits of merit on her behalf. pare the of these affidavits knowledge with full of contents the of validity and with a belief that demonstrated in claims, the affidavits of merit her submitted Plaintiff called the same support complaint. of her to amend the experts as witnesses at trial failed in any change opinion. affidavits of merit to reflect deny Plaintiff that she autho reasonably cannot now concerning rized the to make statements the experts *****7 the subject of affidavits.7 statutory it true that have a While is obligation support to submit affidavits of merit discovery, their the complaints having benefit before obligation we cannot conclude that nature of this altogether accountability relieves them for the sub- stance of statements. The of the affida- purpose these litigation in unrelated is not admissible as an admission under FRE 801(d)(2)(C), expert agent party an unless the witness is persuaded by speak party. authorized to on behalf of that We are not language require Kirk rationale. The actual of the rule does not that the rather, person making “agent” party; only an statement be of the requires party person authorize the to make a statement 801(d)(2)(C) concerning subject. applies person “FRE to a who is not Bank, FSB, speak.” agent supra an but is ‘authorized’ to Glendale Fed 424. agree Appeals merit is not We with the Court of that an affidavit of 801(d)(2)(D) party’s agent admissible under MRE as “a statement concerning scope agency or servant matter within employment” agency relationship between a because there is no right agent respect expert. and an to control the conduct of the with *11 him her is to the existence of to the matters entrusted to fundamental agency relationship. an St Clair Intermediate School Dist v Intermediate (1998). Ass’n/MEA, 540, 557-558; Although 707 Ed 458 Mich NW2d provided upon plaintiffs request, is the affidavit an affidavit merit expert right prepared by independent an and the has no expert’s the content of the statements. control 478 Mich
Opinion
malpractice
of merit is to deter frivolous medical
vits
by verifying through
opinion
qualified
claims
v
professional
health
that the claims are valid. Scarsella
(2000).
Pollak,
547, 548, 551;
461 Mich
(a) Examining Concerning Witness Prior In Statement. examining concerning prior a witness statement made witness, not, whether written statement need not be nor shown its contents disclosed to the witness Collins, supra See at 782. *12 Hidalgo v Opinion of the Court time, request be or disclosed to but on shall shown opposing counsel and witness.
(b)
Prior
Statement
Extrinsic Evidence of
Inconsistent
prior
a
state-
of Witness. Extrinsic evidence of
inconsistent
by a
is not admissible unless the witness is
ment
-witness
deny
opportunity
explain
afforded an
to
the same and
opportunity
interrogate
to
opposite party
is afforded an
thereon,
justice
the witness
or the interests of
otherwise
require.
apply to admissions
provision
This
does not
801(d)(2).
party-opponent
in Rule
as defined
attempting
impeach
by offering
Before
to
witness
statement,
extrinsic evidence of a
inconsistent
prior
lay a
foundation in accordance
litigant
proper
must
617,
court
v
458 Mich
Bofferding,
with the
rule. Merrow
631;
(1998);
Jenkins,
were inconsistent with at and were Graham, Borson, not offered on a collateral matter. clearly testimony Wassermann shifted the focus of their Albaran, Hidalgo, and to a lesser extent against against after and Shah settled. In their affidavits of experts merit, none of the stated that Albaran or violated the standard of care because diagnose recognize failed to TTP or failed to follow up on DIC screen In her merit, results. affidavit of duty diagnose Borson claimed that Shah had TTP up However, treating follow on the blood tests. Borson testified that all of Barnett’s doctors failing up had been at fault for review follow on *13 Graham, Barnett’s blood test results. who made no any diagnosis regarding mention of in error the blood disorder in merit, his affidavit of testified at trial that by failing Albaran had violated standard of care recognize review the DIC screen results and that Bar- suffering although nett was Furthermore, from TTP Wassermann made no reference to this fact in his Hidalgo affidavit, Wassermann testified that violated by failing hematology the standard of care to order a consultation when Barnett, he first saw rather than waiting day. until the next changes experts’
We do not believe that the in the testimony simply at trial were the result of additional they gained through information ery, the course of discov- they argue. were, but if that was for experts’ testimony affidavits of merit and trial were autopsy based on the medical and records, information changed during discovery. that had not the course of depo- Graham claimed that Albaran’s statement in his sition that Albaran had not reviewed the DIC screen results was new information that had not been avail- able at the time of Graham’s affidavit of merit. How- already ever, this information was Graham; known to he testified that the medical records—records that providing were him available to before his affidavit— did not show that Albaran received the test results and therefore that Albaran had not reviewed the re- test Similarly, virtually suits. all the information relied on by Borson and Wassermann for their trial testimony had been available at the time they submitted their affidavits of merit.
Therefore, the of merit affidavits were admissible as party opponent admissions under MRE 801(d)(2)(B) (C) are statements con which an cerning adoption has manifested or, in their truth alternatively, belief statements person by plaintiff authorized to make a statement 600.2912d(1). concerning subjects listed in MCL Moreover, the affidavits of merit were admissible as impeachment evidence because they prior constitute inconsistent statements of plaintiffs expert witnesses.
B. AFFIDAVITS REFERENCING SETTLING DEFENDANT 600.6304, MCL 600.2957 MCL two sections en- acted or amended part as of the 1995 tort reform legislation, generally that the provide trier of fact tort action shall determine the comparative negligence of each person who contributed to the plaintiffs injury, regardless is, of whether that person or could have been, named a party. provides: MCL 600.2957
(1) In legal theory- an action based on or tort another seeking damages injury, personal property damage, for death, wrongful liability person of each allo- shall be and, by subject cated under this section the trier of fact to 6304, proportion person’s section in direct percent- to the age assessing percentages of fault. In of fault under this subsection, the trier of fact shall consider the fault each is, person, regardless person whether or could have been, party named as a to the action.
(2) Upon party days of a motion within 91 after identi- nonparty, grant fication of a the court leave to the shall moving party pleading alleg- to file and serve an amended ing against nonparty. A or more causes of action that [May-
cause of action added under this subsection is not barred period a of limitation unless the cause of action would have period been barred of limitation at the time of the filing original action.
(3) Sections 2956 to 2960 do not eliminate or diminish a exists, immunity currently except defense or as ex- pressly provided percent- in those sections. Assessments of ages nonparties only accurately of fault for are used to parties. determine the of named If fault is assessed fault against nonparty, finding subject of fault does not liability nonparty in that action and shall not be intro- liability in duced as evidence another action.
In relevant MCL 600.6304 part, provides:
(1) legal theory In an action based on tort or another injury, seeking damages personal property damage, wrongful involving person, death fault of more than 1 court, including third-party nonparties, defendants and agreed by action, unless otherwise all to the shall or, special interrogatories instruct if answer jury, findings there indicating is no shall make both of the following:
(a) plaintiffs damages. The total amount of each (b) percentage persons of the total fault of all injury, including contributed to the death or each person liability and each released from under section 2925d, regardless person whether was or could have party been named as a to the action. (2) determining In percentages of fault under subsection
(1) (b), the trier of fact shall consider both the person nature of the conduct of each at fault and the extent of the causal relation between the conduct and the dam ages claimed.
(4) Liability in applies an action to which this section only joint. Except provided several and not as otherwise (6), person required pay subsection shall not be *15 169 Baenett v
Opinion of the Court percentage greater his or her than damages in an amount (1). This subsection and subsection fault as found under jointly and that is apply do not to a defendant section 2956 severally 6312. liable under section
(6) malpractice a medical claim If includes an action 5838a(1), 1 entity in section person or described against a following applies: (a) fault to be without plaintiff If the is determined (1) (2), liability defen of each and under subsections several, the defendant is a joint or not whether dant is 5838a(1). entity in section person or described (b) fault under determined to have If the is (1) (2), made not later than 6 upon motion subsections entered, judgment is the court shall a final months after party’s share of the part all or of a determine whether party, that and shall real- obligation uncollectible from is among par- the other any uncollectible amount locate ties .... among fault apportion obligation
The fact-finder’s joint altered the creation of all is not persons liable See malpractice in medical actions. liability and several 540, Annapolis Hosp, v Estate Shinholster (2004);9 Patton, 261 549, 551; 275 Salter 685 NW2d (2004).10Because 559, 565; 682 App Mich NW2d has held that This Court 6304(1)(b) unambiguous the trier of is and calls for [s]ubsection persons by percentage fault of all “the total fact to assess injury, including plaintiff” each death or contributed to the added), proximate long (emphasis as that fault constituted subsequent damage. injury [Estate cause Shinholster, supra 551.] and MCL 600.6304 MCL 600.2957 liability among non- provide the fact-finder shall allocate malpractice is cases where even in medical under these provisions required to allocate persons, fault of all parties as well as nonparties, we *16 jury believe that a may hear evidence regarding every alleged tortfeasor involved, who has been even parties who dismissed, have been token, same that a party must be permitted to refer to the involvement of nonparties.
The Court of Appeals decision that the admission of the unredacted affidavits of merit referencing Shah constituted error requiring reversal fails consider the language of the above statutes and parties restricts the from revealing the existence of a potentially liable nonparty. In deciding that the admission of the affida- vits of merit referencing error, Shah was the Court of Appeals relied on Brewer and Clery. Brewer,
In in an attempt to strengthen its policy of encouraging settlements, this Court held that genuine
[w]hen there is dispute no regarding either the existence of a release or a settlement between plaintiff and deducted, codefendant or the amount to be jury shall not be the existence a settlement or the informed of of paid, amount parties stipulate unless the otherwise. Fol- lowing jury verdict, upon defendant, motion of the court necessary shall make the calculation and find the jury amount [Brewer, which the verdict will be reduced. added).] supra at (emphasis We determined in Brewer that because the uncertainty juror of reaction to evidence of settlements could be prejudicial to both parties, the potential admission of such evidence constitutes a foreseeable deterrent settlements between plaintiffs and codefendants. Id. joint not at fault liability imposed before and several on each Further, joint defendant. liability once and several is deter apply, joint liability
mined to prohibits and several the limita supra damages [Salter, tion of percentage one’s of fault. 565.] Opinion parties allow the 600.6304 600.2957 and MCL Because nonparties and because to the involvement to refer nonparty, any prohibit ato reference not Brewer does mentioning merely prohibits of a existence but Brewer can that amount, we conclude or its settlement Thus, the Court statutes. with the above be reconciled restricting parties by completely Appeals erred potentially revealing liable of a the existence from nonparty. Appeals reliance on Moreover, the Court although misplaced because, the unre- Brewer was jury defendant, the aas affidavits listed Shah dacted reached and Shah had never informed a settlement. Clery, instructed
In the trial court parties trial, without before had dismissed certain been informing after a dismissed it that the were Relying Brewer, the *17 on had reached. settlement been requiring Appeals in the error reversal of found Brewer, that, in and held unlike instruction trial court’s “misinterpretation of had been the the concern where danger Clery had an “added facts,” in there been true misinterpret jury position based the was in a that Clery,supra misleading only upon partial and facts.”11 danger Appeals of held that the of at 62. The Court jury greater prejudice the because and confusion was parties’ regarding missing speculate the left to was possible settlement, whereabouts, the of a amount missing parties. potential Id. at 62-63. fault of the the Appeals noted: The Court jury imparted were a to the in Brewer the facts At least in that case. In the complete the settlement accurate recital of half-truth; jury case, the was that of a present disclosure was but against the road commission the bar and told that the case pursuant dismissed, this was not told that but were [Clery, supra $128,000 $5,000 respectively. settlement of 62.] Appeals The Court of conclusion Clery entirely that prohibits the from referring nonparty to a potentially at fault Clery merely too broad. simply proposition stands for the that the parties may not inform the that a jury nonparty was dismissed from the lawsuit. Under the provisions MCL 600.2957 and 600.6304, a defendant may pursue legitimate defense that arguing fault rests a nonparty, regardless with nonparty is, been, whether the could have named a party. However, nonparty fault statutes do not require jury that be informed about the reason nonparty’s behind a from absence lawsuit. fact that nonparty agreed to settle or was dismissed is irrelevant to the determination and allocation that person’s Therefore, fault. to the extent prohibits that it informing jury that a nonparty has been dismissed lawsuit, from the not Clery is conflict with the statutory mandate entirely does not prohibit any to a reference nonparty. jury
Because the in the instant case was not actually informed that Shah dismissed, had been the instant facts do fit not within the Clery holding. Arguably, however, because the unredacted affidavits of merit defendant, listed Shah as a jury could have reason- ably inferred that Shah had been dismissed from the lawsuit. if Even such an equate inference would with actually informing the Shah was dismissed from lawsuit, reversal here is not required. Plaintiff failed to show it was more probable than not that error alleged was outcome See Lu- determinative. kity, supra at 495-496. There was ample evidence show- *18 ing that Albaran and a Hidalgo, general surgeon neurologist, respectively, did not breach the standard of care to applicable their profession by failing to recog- nize or diagnose a rare blood disorder usually TTfl a diagnosed by Furthermore, hematologist. had this Hidalgo jury speculation, in prejudicial resulted error alleged unfavorable have been conceivably may verdict jury had that Shah informing jury After to defendants. have believed could dismissed, jury arguably been fault, of his lack of indicative was dismissal that Shah’s must have been therefore, and, Albaran death. for Barnett’s responsible to inform are not allowed parties While or nonparty with a aof settlement the existence about dismissed, under nonparty amount, or that its permitted are 600.6304, 600.2957 MCL there- We referring nonparty. introduce evidence refer- of merit affidavits fore conclude are admissible. defendant settling encing DEFENDANT OF SETTLING DEPOSITION C. the admission of Shah’s final issue is whether In per- reversal. requiring error constitutes
deposition provides: MRE 804 part, tinent (a) “Unavailability as a unavailability. Definition in which the declarant— situations includes witness” (1) ground of on the by ruling of the court exempted subject matter of concerning the testifying privilege from statement; or the declarant’s subject (2) concerning testify refusing to persists despite an order of the the declarant’s statement matter of so; do court to (3) subject of the memory matter a lack of has statement; or
declarant’s
(4) testify hearing at the or to present to be is unable illness existing or mental physical or then because of death infirmity; or (5) proponent of hearing and the from the is absent procure the declarant’s has been unable statement (or exception hearsay under in the case of attendance *19 478 Mich op Opinion the Court (b)(2), (3), (4), subdivision or attendance or declarant’s testimony) by process means, or and in other reasonable case, diligence criminal due shown. is A exemption, declarant is not unavailable as a if witness refusal, memory, inability, of lack of claim or absence is due procurement wrongdoing proponent or of the of a purpose preventing statement for the the witness from attending testifying.
(b) Hearsay exceptions. following The are not excluded by hearsay rule if the declarant is unavailable as a witness:
(5) Deposition Testimony. Testimony given as a witness in deposition taken in compliance with in the law course proceeding, against same another if party testimony offered, or, whom the is in now a civil action or proceeding, predecessor interest, opportunity had an develop testimony by direct, similar motive to cross, or redirect examination.
Thus, when a witness is at available his or her deposition testimony inadmissible, hearsay, as purposes. substantive of Appeals held that the admission of
Shah’s deposition to that he show reviewed the DIC screen results amounted to error requiring reversal because critical “[t]his information could not have gone before the jury any Barnett, other supra means.” at 168-169. respectfully disagree We and instead conclude error, that such if any, 2.613(A); was harmless. MCR Lukity, supra witnesses, 495-496. other Two Albaran and Bowman, each properly testified that Shah had Thus, reviewed the DIC screen results. this information jury through available alternative and per- missible means. Opinion Dissenting Kelly, J.
IV CONCLUSION 801(d)(2)(B) and of MRE conclude on basis We (C) of merit were the affidavits MRE they because consti- evidence admissible as substantive and admissible party opponent, aby tute admissions prior constitute impeachment evidence expert witnesses. inconsistent statements 600.6304, Further, of MCL 600.2957 on the basis *20 to the refer permitted conclude that was we jury that the therefore nonparties and involvement re- the of merit that have affidavits could considered we conclude that Finally, to a defendant. settling ferred used improperly if the in this case was deposition even evidence, was harmless be- the error as substantive alternatively introduced was cause information re- Accordingly, means. we through permissible other Appeals judgment. verse Court JJ., C.J., Corrigan, Taylor, Weaver, Young, J. MARKMAN, concurred with only. I concur the result J. CAVANAGH, I majority’s from the (dissenting). J. dissent KELLY, It of Appeals judgment. decision to reverse Court the unredacted affida- not harmless error allow was vits of merit into evidence. Sherwood,1 brought wrong- Clery
In
v
Sherwood, Jeffrey
Timothy
against
ful death action
Bar, and the
Pratt,
Leonard,
Stage
Stop
Coach
Cass
Sherwood,
Clery
County Road Commission.
Clinton
(1986).
55, 59;
Before
Mich
I believe that the Appeals Court of in Clery properly concluded that is not harmless error a jury to instruct that a nonparty has been dismissed from lawsuit. I believe the rationale in Clery applies equal with force to the instant case. The unredacted affidavits merit However, listed Dr. Shah as a party to the suit. the judge instructed the that Dr. party Shah was not a to the *21 action. The clear inference that had was Dr. Shah been dismissed from the lawsuit.
The majority
that
recognizes
jury reasonably
could have inferred from the unredacted affidavits of
merit
that Dr. Shah
been
had
dismissed from the
Stations,
Payless
Inc,
673, 679;
In Brewer v
lawsuit. opines jury arguably that majority harmless. dismissal indicated have that Dr. Shah’s could believed and, therefore, defendants must that his lack fault for Mr. Barnett’s death. responsible have been However, possible that believed equally it is (1) Dr. the result of a settle- that dismissal was Shah’s (2) of Dr. indicative ment, that the settlement was (3) fault, that, Dr. Shah fault, and because Shah’s The list of responsible. possibilities not defendants were result, poten- As lengthy. prejudice that Dr. Shah great, the inference prejudice tial is so cannot be harmless. from the lawsuit was dismissed Appeals Clery just as Accordingly, the erroneous instruction warranted determined I reversal, the unredacted affidavits conclude in the case warrant reversal. merit instant