SMITH v BEAUMONT HEALTH
Docket Nos. 167716 and 167720
Michigan Supreme Court
June 30, 2026
Argued on application for leave to appeal January 21, 2026.
Syllabus
Chief Justice: Megan K. Cavanagh
Justices: Brian K. Zahra Richard H. Bernstein Elizabeth M. Welch Kyra H. Bolden Kimberly A. Thomas Noah P. Hood
This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
Reporter of Decisions: Kimberly K. Muschong
Lawanna Smith, as personal representative of the estate of Jacqueline Harris, filed a complaint in the Oakland Circuit Court against Jack D. Lennox, D.O.; his employer, Tri County Orthopedics, PC; and Beaumont Hospital, alleging medical malpractice. Lennox performed knee replacement surgery on Harris and allegedly failed to prescribe her a prescription-strength anticoagulant. About 30 days after the surgery, Harris died from an acute pulmonary embolism. The complaint was supported by an affidavit of merit (AOM) signed by B. Sonny Bal, M.D., in which he attested, pursuant to
In a unanimous opinion by Justice ZAHRA, the Supreme Court, in lieu of granting leave to appeal, held:
The correct standard for courts when considering whether to allow a party to amend its witness list is the good-cause standard set forth in
- The Court of Appeals erred by holding that a trial court must consider the Dean factors when evaluating a party‘s motion to amend its witness list.
MCR 2.401(I) governs witness lists, andMCR 2.401(I)(2) states that the court may order that any witness not listed in accordance with the rule “will be prohibited from testifying at trial except upon good cause shown.” The rule is stated in plain terms, and there is no basis to depart from its plain language. The court rule properly focuses the trial court‘s attention on the adequacy of the moving party‘s explanation of good cause along with a showing that the party‘s conduct supports this explanation. Court of Appeals caselaw supports that the court rule plainly expresses a good-cause standard, and from this caselaw comes basic considerations that arе significant to a good-cause analysis. With regard to a party‘s diligence, such considerations include the timeliness of a party‘s motion to amend its witness list after discovering the unavailability of a witness, the absence of previous delays, whether the discovery period has concluded, the effect on mediation, and whether the party was made aware of the need to obtain another witness. These considerations demonstrate how application of the Dean factors is not an appropriate standard to evaluate a party‘s motion to amend a witness list. In Dean, the Court of Appeals reviewed the trial court‘s order barring the plaintiff from calling any witnesses as a sanction for failing to timely amend her witness list. The Court of Appeals listed factors to consider in this situation, including (1) whether the violation was willful or accidental; (2) the plaintiff‘s history of refusing to comply with discovery requests or disclose witnesses; (3) the prejudice to the defendant; (4) notice to the defendant of the witness and how long before trial notice was received; (5) whether the plaintiff engaged in deliberate delay; (6) the plaintiff‘s compliance with other provisions of the court‘s order; (7) any attempt by the plaintiff to timely cure the defect; and (8) whether a lesser sanction would better serve the interests of justice. Only Factor (7) primarily relates to good cause. A trial court‘s application of the Dean factors to a motion to amend a witness list does not focus on the most relevant considerations of that inquiry. While the Dean factors could be relevant, the primary considerations for a court in assessing a motion to amend are the diligence of the moving party and the prejudice that either side would incur from granting or denying the motion. The circuit court abused its discretion under the good-cause standard. The court concluded that if plaintiff had diligently prosecuted her case, she would have realized that Bal was uncooperative or unqualified to testify “much sooner” than she did. However, the record showed that plaintiff was in regular contact with Bal after naming him as her expert in April 2022, and that he was cooperative. Plaintiff suggested many dates to defendants to depose Bal, beginning as early as June and July 2022, but defendants were not available. The parties ultimately agreed that defendants would depose Bal on August 15, 2022, but Bal cancelled because of an emergency. Although the circuit court appeared to have assigned blame to plaintiff for the delay in deposing Bal, much of the delay during September and October 2022 was prompted by defendants’ attempt to establish that Bal‘s AOM was invalid. Additionally, the court‘s finding that defendants would be prejudiced by granting plaintiff‘s motion was problematic, given that the type of prejudice relevant to this inquiry occurs from the additional unnecessary expense incurred due to the moving party‘s failure to use due diligence. Summary disрosition was prematurely granted because it was predicated on the court‘s erroneous decision denying plaintiff‘s motion to amend.
Court of Appeals’ judgment reversed in part; case remanded to the circuit court for further proceedings.
STATE OF MICHIGAN SUPREME COURT LAWANNA SMITH, Personal Representative of the ESTATE OF JACQUELINE HARRIS, Plaintiff-Appellee, v BEAUMONT HEALTH, Defendant-Appellant, and TRI COUNTY ORTHOPEDICS, PC, and JACK D. LENNOX, D.O., Defendants. LAWANNA SMITH, Personal Representative of the ESTATE OF JACQUELINE HARRIS, Plaintiff-Appellee, v BEAUMONT HEALTH, Defendant, and TRI COUNTY ORTHOPEDICS, PC, and JACK D. LENNOX, D.O., Defendants-Appellants.
No. 167716; No. 167720
Michigan Supreme Court
FILED June 30, 2026
Chief Justice: Megan K. Cavanagh
Justices: Brian K. Zahra Richard H. Bernstein Elizabeth M. Welch Kyra H. Bolden Kimberly A. Thomas Noah P. Hood
ZAHRA, J.
In this case we address whether the circuit court properly evaluated plaintiff‘s motion to amend her witness list to add an expert witness without expressly considering the factors set forth in Dean v Tucker.1 We disagree with the Court of Appeals that consideration of every Dean factor is mandatory in this context and hold that the standard applicable to a motion to amend a witness list is set forth in
Although we conclude that the Court of Appeals erred by requiring the circuit court to consider the factors set forth in Dean, we nonetheless agree with the panel that the circuit court‘s decision granting defendants summary disposition was premature. The court‘s decision regarding summary disposition was predicated on its decision to deny plaintiff‘s motion to amend her witness list, leaving plaintiff without the required expert witness to establish a medical malpractice case. The circuit court‘s decision to deny plaintiff‘s motion to amend her witness list is flawed. The court‘s opinion provides scant discussion of plaintiff‘s diligence in securing an expert witness and fails to articulate any prejudice to defendants, particularly given that the court mistakenly believed that the discovery period had closed on July 7, 2022, when the court had, in fact, extended discovery until December 12, 2022. That plaintiff‘s putative expert, Dr. Bal, had not been deposed, and that plaintiff took prompt action to obtain a replacement expert witness who was willing to be deposed within the discovery period, favor granting the motion to amend a witness list.
The circuit court‘s decision was largely predicated on its conclusion that, “[h]ad Plaintiff diligently prosecuted her case, she would have realized Dr. Bal was uncooperative and/or unqualified to testify much sooner than November of 2022.” But this ignores that Dr. Bal hаd been cooperative until his scheduled date of deposition on August 15, 2022, even offering to make himself available for a deposition as early as June 2022. Given the communications between the parties regarding the scheduling of his deposition, there does not appear to be any question that plaintiff reasonably believed Dr. Bal would have been available as a witness until he suddenly became unavailable.
I. BASIC FACTS AND PROCEEDINGS
Defendant Jack D. Lennox, D.O., is an orthopedic surgeon. He performed a total knee replacement surgery on Jacqueline Harris in 2019. After surgery, he advised Harris to take aspirin. About 30 days later, Harris died from an acute pulmonary embolism.
On behalf of Harris‘s estate, plaintiff filed a complaint on April 9, 2021, naming as defendants Dr. Lennox and his employer, Tri County Orthopedics, PC (collеctively, Tri County defendants), and the facility in which the surgery took place, Beaumont Hospital. The complaint alleged that Dr. Lennox‘s failure to prescribe a prescription-strength anticoagulant was malpractice that caused Harris‘s death from a blood clot. Plaintiff also alleged claims of vicarious liability against Tri County and Beaumont. The complaint was supported by an affidavit of merit (AOM) signed by B. Sonny Bal, M.D. Dr. Bal attested that “during the relevant time period at issue in this matter, I was a licensed and practicing
The circuit court issued an initial scheduling order on June 22, 2021, that required the parties to name their experts and submit witness lists to opposing counsel and the court by May 6, 2022. Plaintiff timely filed a witness list on April 25, 2022. She listed Dr. Bal as her sole orthopedic surgery expert, which matched Dr. Lennox‘s area of practice. Discovery was originally set to close by June 7, 2022. The parties engaged in discovery and, on June 3, 2022, plaintiff‘s counsel provided a list of five days in August in which Dr. Bal would be available for in-person deposition.3 On June 6, 2022, the parties agreed to schedule Dr. Bal‘s deposition for August 15, 2022. Notably, the next day, the circuit court entered a stipulated order extending the scheduling order dates. In that order, the discovery cutoff date of June 7, 2022, was extended to December 12, 2022, the facilitation date agreed upon by the parties. Trial was scheduled for February 7, 2023.
On August 15, 2022, plaintiff‘s counsel informed counsel for defendants that Dr. Bal had an emergency and had to cancel the deposition. Plaintiff‘s counsel indicated that new dates would be offered. Having not received new dates for a deposition, Tri County defendants filed a motion on September 9, 2022, to compel Dr. Bal‘s deposition within 14 days of entry of an order granting their motion, so as to provide them with sufficient time to prepare motions for summary disposition and prepare for a “meaningful” facilitation.
On September 20, 2022, plaintiff‘s counsel provided dates for Dr. Hall‘s deposition to defendants, including October 14, November 4, and November 11, 2022. On September 21, 2022, Tri County defendants filed a motion to strike the amended witness list on the basis that it was untimely filed 133 days after the expert disclosure and witness list deadlines set forth in the original scheduling order, which were not modified by the amended scheduling ordеr. In response, plaintiff represented that Dr. Bal “has not been cooperative, and he needs to be replaced.” Plaintiff asserted that Dr. Bal was an “unreliable” expert because of his lack of responsiveness and unavailability, not because of his qualifications.
On October 12, 2022, the circuit court heard arguments on the motions to compel Dr. Bal‘s deposition and to strike plaintiff‘s amended witness list. Plaintiff‘s counsel stated that the motion to compel Dr. Bal‘s deposition was moot because plaintiff was withdrawing Dr. Bal as an expert. Defense counsel objected, arguing that Tri County defendants were nevertheless entitled to depose Dr. Bal about the assertions made in his AOM regarding his qualifications. The circuit court ordered plaintiff to produce Dr. Bal for a deposition in the next three weeks. In regard to plaintiff‘s amended witness list, the court chastised plaintiff‘s counsel for filing the amended witness list without the court‘s permission rather
One week later, plaintiff filed an emergency motion to amend her witness list, asserting that none of the factors articulated in Dean warranted barring plaintiff from amending her witness list as a discovery sanction. Tri County defendants filed a response to the motion to amend, addressing the Dean factors and highlighting the prejudice that would result to them if plaintiff were allowed to either voluntarily dismiss the case without prejudice or substitute a new expert, when dismissal was warranted based on Dr. Bal‘s lack of qualifications to sign the AOM.
In addition, Tri County defendants argued that plaintiff‘s proffered “good cause” for substituting Dr. Bal—his failure to communicate—was shown to be false by the fact that plaintiff‘s counsel had communicated with Dr. Bal on the date of his scheduled deposition and then reached out to Dr. Hall only two days later. They argued plaintiff never submitted any evidence of attempts to contact Dr. Bal that went unanswered, nor did plaintiff respond to defendants’ request for new deposition dates for Dr. Bal until the day she named Dr. Hall as her new expert. Defendants surmised that the real reason plaintiff wanted to substitute her experts was because Dr. Bal was not qualified to sign the AOM, not because he was an uncooperative witness.
Tri County defendants filed responses to this renewed attempt at voluntary dismissal, and the motion was noticed for hearing the same day as plaintiff‘s emergency motion to amend the witness list. Several days before the emergency motion was scheduled to be heard, both sets of defendants filed motions for summary disposition to dismiss the complaint due to the invalid AOM. The motions referred to defendants’ recent discovery of trial and deposition transcripts from a separate case, in which Dr. Bal had testified that he had retired from practicing and teaching medicine in 2017, and a copy of Dr. Bal‘s LinkedIn profile confirming the same.
On November 14, 2022, the circuit court issued an order and opinion denying plaintiff‘s motion for voluntary dismissal without prejudice and plaintiff‘s motion for leave to file an amended witness list. The order and opinion stated:
This matter was filed on April 9, 2021. Witness lists in this matter were due by May 6, 2022, with discovery closing on June 7, 2022. Trial in this matter is currently set for February 7, 2023. Allowing an amended witness list at this late stage is also highly prejudicial.
Plaintiff moved for reconsideration of the November 14, 2022 order and opinion and also filed a response to defendants’ motions for summary disposition. On December 8,
Plaintiff again argues that her witness, Dr. Bal, is being “uncooperative” and that the Court abused its discretion in denying her Motion. The Court disagrees. Dr. Bal signed Plaintiff‘s Affidavit of Merit. Pursuant to
MCL 600.2912d , prior to filing a medical malpractice suit, a plaintiff must obtain an affidavit of merit signed by a physician qualified to testify as to the nature of the alleged malpractice. This must be done at the outset of every medical malpractice suit.Plaintiff filed her Complaint, along with her Affidavit of Merit, on April 9, 2021. Discovery was open until June 7, 2022. Plaintiff is now claiming Dr. Bal is “uncooperative” despite having over one year to sort out any issues with her experts. Had Plaintiff diligently prosecuted her case, she would have realized Dr. Bal was uncooperative and/or unqualified to testify much sooner than November of 2022. At this stage of the litigation, a voluntary dismissal without prejudice or leave to file an amended witness list is simply inappropriate.
The Court finds no palpable error.
Plaintiff‘s Motion is denied.
The circuit court issued another order and opinion on December 14, 2022, granting Beaumont‘s motion for summary disposition and closing the case:
According to Defendant, Dr. Bal ceased practice in November of 2017. The care at issue occurred on May 29th, 2019. Plaintiff has not produced Dr. Bal for deposition, violating the Court‘s Order to produce him. Dr. Bal‘s LinkedIn page states that he retired from the clinical practice of medicine in November 2017. He also retired from serving as an adjunct professor at the Missouri University of Science and Technology, as well as serving as a professor of orthopedic surgery at the University of Missouri Health Care in November 2017. In September of 2020, Dr. Bal was deposed in a separate matter where he testified that he had been winding down his practice since 2015. Defendant also attached sworn trial testimony in another matter wherein Dr. Bal confirmed he retired in November of 2017.
Based on this deficiency, Beaumont requests dismissal. In Response, Plaintiff argues that the Court should not dismiss the case on this basis because Plaintiff‘s counsel needs only a “reasonable” belief that the physician signing the affidavit of merit is qualified at the time of signing. Moreover, Plaintiff characterizes this Motion as merely an “unfettered attack upon the credibility of Dr. Bal, which is not a proper basis for summary disposition.” In other words, Plaintiff states that the Court should not rely on outside deposition or . . . trial testimony, and instead rely only on the Affidavit of Merit itself, wherein Dr. Bal swears he is qualified to sign.
It is troubling that Plaintiff cautions the Court in relying upon deposition and trial testimony from other cases when Plaintiff cannot produce any evidence from her own witness to refute what Defendant is arguing. Again, this case was filed in April of 2021. Plaintiff retained Dr. Bal prior to that date because he signed her Affidavit of Merit. Plaintiff had over one year to work out any issues with her experts. The Court agrees that Plaintiff‘s counsel may “reasonably” rely upon the statements of experts, but discovery ended in June of 2022: over one year after her Complaint was filed. Dr. Bal was the expert she relied upon to file her claim in the first place. He has not been produced for deposition and Plaintiff has not attached any evidence of any kind indicating that he was in fact qualified to sign the Affidavit of Merit in this case.
The circuit court continued:
Plaintiff merely points to the Affidavit of Merit itself. However, the Affidavit of Merit is being directly challenged in this Motion. Therefore, it is Plaintiff‘s burden to produce evidence which creates a genuine issue of material fact as to the validity оf the Affidavit of Merit. Plaintiff cannot simply argue that the Affidavit is valid without providing any substantiating evidence, as it is being directly challenged through sworn testimony provided by Defendant.
“As the federal courts have aptly noted under the analogous federal summary judgment standards, once discovery is closed the summary disposition hearing becomes the ‘put up or shut up’ stage of the proceeding, and if there is no factual support for a claim, it will not continue.” Pena v Ingham County Road Com‘n, 255 Mich App 299, n 4[; 660 NW2d 351] (2003).
Here, Defendant provided sworn testimony which suggests the statements contained in Plaintiff‘s Affidavit of Merit surrounding Dr. Bal‘s
qualifications are untrue. Namely, that he was engaged in practice or teaching in the one-year period prior to the alleged conduct. Plaintiff has not come forward with any evidence to suggest otherwise.
Defendant‘s Motion is granted.
The Court finds Plaintiff‘s Affidavit of Merit invalid. Absent a valid affidavit of merit, a complaint for medical malpractice fails as a matter of law. Therefore, this is a final order and closes the cаse.
Plaintiff filed a motion for reconsideration, which was denied.
Plaintiff appealed as of right in the Court of Appeals.4 The panel concluded that “[t]he trial court‘s denial of the motion [to amend the witness list] effectively was a dismissal,”5 explaining that “the trial court‘s order made it so plaintiff did not have an expert witness regarding standard of care and breach.”6 The panel elaborated:
Because plaintiff no longer had an expert witness, plaintiff could not prove two necessary elements. This was fatal to plaintiff‘s claims in this case. As a result, the trial court‘s order disallowing plaintiff from exchanging Dr. Bal for Dr. Hall was an effective dismissal because plaintiff could not possibly prove the claims brought in the complaint. Indeed, the effect of the order was clear when, just one month later, the trial court ordered the case dismissed because Dr. Bal was not qualified to be an expert witness in the case, which meant he had not been qualified to provide the AOM.7
The panel then highlighted that caselaw provides that “when an order that precludes a witness from testifying would effectively result in a dismissal, the trial court must engage
[w]hile prejudice to the defense is one of the Dean factors, it is not the only one. Moreover, as this Court has stated, the trial court must consider other potential sanctions on the record before entering an order that effectively amounts to a dismissal. In the simplest terms, and as is evident from the above quotation, the trial court did not do that; and, as a result, abused its discretion as a matter of law.9
Tri County defendants and Beamont filed separate applications for leave to appeal in this Court. We ordered oral argument on the application in both cases to address
whether the Court of Appeals correctly held that the Oakland Circuit Court abused its discretion when it failed to consider the factors set forth in Dean v Tucker, 182 Mich App 27 (1990), during its consideration of the plaintiff‘s
motion to amend her witness list to add an expert witness. See
MCR 2.401(I)(2) .10
II. STANDARD FOR DECIDING A MOTION TO AMEND A WITNESS LIST
A. STANDARD OF REVIEW
We recently explained that questions involving the proper interpretation of statutes and our court rules are questions of law, which are reviewed de novo.11 ” ‘De novo review means we review the legal issues independently without deferring to the legal interpretation of the lower courts.’ ”12
B. DISCUSSION
We conclude that
Not only does the court rule plainly express a “good cause” standard, several published decisions from the Court of Appeals support this understanding. The most apt of these cases is Tisbury v Armstrong.15 There, the trial court denied the plaintiffs’ motion for an adjournment and their motion to amend their witness list on July 21, 1989.16 “In an attempt to show good cause, [the] plaintiffs alleged that on July 11, 1989, their witness informed them that he would not testify in their behalf and that ‘at no time did this expert ever indicate in any way, shape or form, that he was not going to testify.’ ”17
In another analogous case, Levinson v Sklar,22 the plaintiffs
originally identified Dr. Barbara Carruthers as their expert. Sometime after mediation, without leave of the cоurt or stipulation by the parties, plaintiffs filed a supplemental witness list identifying Dr. Roy Selby as their new expert witness. [Defendant] brought a motion to strike the supplemental witness list because Dr. Selby had been identified as a witness after the deadline for discovery. Plaintiffs argued there was no prejudice to defendants in the substitution of Dr. Selby for Dr. Carruthers, as defendants had not yet deposed Dr. Carruthers. The judge denied the substitution, concluding it would destroy the effect of mediation. He
The Court of Appeals reversed. The panel acknowledged that the plaintiffs’ request came within two months of the original trial date, but concluded that the request would not have resulted in prejudice to the defendants. The panel highlighted that “[t]he original expert witness had not yet been deposed. Further, there would not necessarily have been an effect on the mediation recommendation, since Dr. Carruthers’ testimоny had not been available to the mediators.”24
We also consider a more recent case in which the Court of Appeals affirmed the trial court‘s decision to deny the plaintiff‘s motion to substitute an expert witness. In Cox v Hartman,25 the plaintiff argued that the trial court erred by concluding that the plaintiff‘s motion to add an expert witness was untimely after the trial court had ruled that her originally proposed expert witness, Claudia A. Beckmann, was not qualified.26 The panel pointed out that the “[p]laintiff did not move to add a new expert until June 10, 2016, which was four days after the trial court had entered its June 6, 2016 order granting summary disposition in favor of defendants.”27 More significantly, the
was on notice that there was at least a question concerning Beckmann‘s qualification to testify. At Beckmann‘s deposition in August 2015, it became clear that Beckmann devoted a majority of her professiоnal time in the year preceding the alleged malpractice to instructing or practicing as a nurse practitioner rather than a registered nurse. In November 2015, defendants moved for summary disposition on the basis of Beckmann‘s lack of qualification to testify; by this point, plaintiff was plainly on notice that Beckmann‘s qualification as an expert witness was in question. Although the trial court initially ruled in plaintiff‘s favor on the summary disposition issue on February 2, 2016, the trial court granted reconsideration of its decision on March 31, 2016, allowing the parties to file supplemental briefs on the issue. Hence, plaintiff‘s suggestion that she could not have known that she needed to obtain an expert other than Beckmann until the trial court actually granted summary disposition on June 6, 2016, lacks merit. In opposing defendant‘s motion for summary disposition, plaintiff chose to rely entirely on Beckmann as an expert rather than seek to add another expert at that time; this was plаintiff‘s choice. The trial court then granted summary disposition to defendants because Beckmann was unqualified and plaintiff had presented no other expert to testify concerning the standard of care. The trial court did not err by concluding that plaintiff‘s motion was untimely.28
From these decisions, we glean some basic considerations that are significant to a “good cause” analysis. With regard to a party‘s diligence, such considerations include the timeliness of a party‘s motion to amend its witness list after discovering the unavailability of a witness;29 the absence of repeated previous delays; whether the discovery period has
In Dean, the plaintiff failed to file a witness list by the deadline, contrary to
These factors are based on caselaw cited in support of each of the factors.39 A review of these cases reveals that these factors are primarily concerned with a sanctioned party‘s conduct. Several cases are cited in support of Dean Factor (1), whether the violation was willful or accidental.40 These cases considered the failure of an agent of the plaintiff to appear at the agent‘s deposition,41 the failure to produce expert witnesses for deposition as required under a court order,42 the failure to comply with an order of discovery,43 a protracted course of conduct that resulted in the frustration of two of the defendants’ attempts to obtain discovery pertinent to medical issues,44 an attorney‘s failure
As a standard for determining sanctions, it makes sense that the Dean factors primarily focus on the moving party‘s actions and any history of misconduct during the litigation. “The sanctioning court is in a position to determine what sanction would be appropriate for curbing the sanctioned behavior, restоring order to the proceeding, and chastising the abuser for the improper conduct. In other words, because discovery sanctions are to be proportionate and just, it would be imprudent to attempt to delineate a bright-line rule.”53
However, a trial court‘s application of the Dean factors to a motion to amend a witness list does not focus on the most relevant considerations of that inquiry, such as whether the initial expert had been deposed, whether discovery had ended, whether a party filed a motion to amend a witness list before the opposing party filed a dispositive motion relating to the expert, whether a party chose to litigate their expert‘s qualifications, and whether either party would be prejudiced by granting or denying the motion. Indeed, five of the eight Dean factors focus on the moving party‘s sanctioned misconduct and history
III. SUMMARY DISPOSITION
A. STANDARD OF REVIEW
This Court reviews de novo a trial court‘s determination regarding a motion for summary disposition.54 A motion for summary disposition under
B. DISCUSSION
Although the Court of Appeals did not reach the merits of the circuit court‘s decision denying plaintiff‘s motion to amend her witness list, we conclude that the circuit court abused its discretion under the “good cause” standard that it purported to apply. The emphasis of the “good cause” standard is on a party‘s diligence in securing a witness and on prejudice to either side. In terms of diligence, the court tersely concluded that “[p]laintiff is now claiming Dr. Bal is ‘uncooperative’ despite having over one year to sort out any issues with her experts. Had Plaintiff diligently prosecuted her case, she would have realized Dr. Bal was uncooperative and/or unqualified to testify much sooner than November of 2022.”
However, the record reflects that plaintiff was in regular contact with Dr. Bal after he was named as an expert witness on April 25, 2022, during which time he was cooperative. On April 28, 2022, plaintiff wrote to defendants, indicating that Dr. Bal was “[u]navailable on Fridays,” but “[f]lexible for the months of June and July with the exception [of] the week of July 12th through July 19th.” Defendants in turn suggested June 20, 2022, but Dr. Bal was not available. Plaintiff then suggested June 23, 2022, or July 6, 2022, but those dates did not work for defendants. On May 16, 2022, plaintiff suggested additional dates in 2022 for Dr. Bal‘s deposition, including June 7, 9, and 16. On May 24,
The record reveals that plaintiff was in regular contact with Dr. Bal from April 28, 2022 to June 6, 2022. Plaintiff‘s repeated attempts to schedule Dr. Bal‘s deposition earlier than August 15, 2022, are highly reflective of plaintiff‘s diligence and belief that Dr. Bal was qualified to execute the AOM. Yet it appears that the circuit court assigned blame to plaintiff for the two-month gap between the originally scheduled date of Dr. Bal‘s deposition and August 15, 2022. But plaintiff offered to have Dr. Bal deposed as early as June 2022. Further, the court‘s passing remark that if plaintiff had been diligent, her proposed expert would have been deposed “much sooner than November of 2022” does not appreciate that much of the delay during September and October was prompted by defendants’ attempt to establish that Dr. Bal‘s AOM was invalid.
The trial court‘s terse statement that defendants would be prejudiced by granting the motion is similarly problematic. As noted, generally, the type of prejudice relevant to this inquiry occurs from the additional unnecessary expense incurred due to the moving party‘s failure to use due diligence. Moreover, the trial court‘s prejudice assessment was
Because the court‘s decision granting summary disposition was predicated on its erroneous decision denying plaintiff‘s motion to amend her witness list to add an expert witness, which resulted in plaintiff‘s failure to establish her claim, we conclude that summary disposition was prematurely granted.
IV. CONCLUSION
We hold that the Court of Appeals erred by holding that a trial court must consider the Dean factors when evaluating a party‘s motion to amend its witness list. We hold that the correct standard is set forth in
Brian K. Zahra
Megan K. Cavanagh
Richard H. Bernstein
Elizabeth M. Welch
Kyra H. Bolden
Kimberly A. Thomas
Noah P. Hood