Patricia PERSICHINI, Personal Representative of the Estate of Mildred Mikoljeski, Deceased, Plaintiff-Appellant,
v.
WILLIAM BEAUMONT HOSPITAL, Richard A. Herbert, M.D., D. Dilisio, M.D., Kevin S. Grady, M.D., Dr. Cameron Wright, Pulmonary & Critical Care Associates, P.C., and Sinai Hospital of Greater Detroit, Defendants-Appellees.
Court of Appeals of Michigan.
*103 Meklir, Nolish, Friedman & Saperstein, P.C. (by Michael W. Stephenson), Southfield, for the plaintiff.
Plunkett & Cooney, P.C. (by Robert G. Kamenec ), Detroit, for William Beaumont Hospital.
Siemion, Huckabay, Bodary, Padilla, Morganti & Bowerman, P.C. (by Raymond W. Morganti), Southfield, for Richard A. Herbert and others.
Kitch, Drutchas, Wagner & Kenney, P.C. (by Susan Healy Zitterman), Detroit, for Sinai Hospital of Greater Detroit.
Before COLLINS, P.J., and SAWYER and MARK J. CAVANAGH, JJ. *101
*102 MARK J. CAVANAGH, J.
Plaintiff, Patricia Persichini, as personal representative of the estate of Mildred Mikoljeski, appeals by leave granted from the trial court order assessing plaintiff's counsel with mistrial sanctions in this medical malpractice action. We affirm in part and reverse in part.
Plaintiff filed the instant lawsuit alleging that defendants' failure to diagnose and treat Mikoljeski's respiratory distress led to her death. A trial before then Circuit Judge Hilda Gage commenced on October 16, 1995. On the third day of trial, while cross-examining defendant Dr. Richard A. Herbert, plaintiff's counsel asked: "Doctor, is it true that in your career, you have been sued for medical malpractice six or eight times?" The defense objections were immediate and vociferous. Defense counsel moved for a mistrial and requested costs. Plaintiff's counsel protested that *104 the question had been asked without objection at Dr. Herbert's deposition, and that he therefore had not had any reason to believe that there would be an objection to the question at trial. The trial court ruled that the question was improper and, because it did not see how the error could be cured, stated that it was inclined to grant defendants' motion for a mistrial. However, the court recessed the proceedings so that the parties could present authority in support of their arguments.
When court reconvened, counsel for Dr. Herbert stated that plaintiff's counsel had misrepresented the record with regard to defendant Dr. Herbert's deposition. In fact, there had been an objection to the question regarding prior medical malpractice lawsuits. Plaintiff's counsel conceded that the question had been objected to at the deposition. However, he asserted that the question was not improper because the "answers to that question and subsequent questions may well have been relevant and material in this case." Specifically, plaintiff's counsel explained that in other cases where Dr. Herbert had been sued, it had been alleged that, as in the present case, he had failed to properly diagnose the patient. Furthermore, plaintiff's counsel argued that "it may well be that in some of those prior cases Doctor Herbert has hired the same experts that he has in this case and I may be able to develop some bias or prejudice argument along those lines."
Plaintiff's counsel further argued that, even if the question were improper, a mistrial was not warranted because defendants had been on notice of his intention to ask the question and had not brought a motion in limine to prevent it. Moreover, plaintiff's counsel stated that the question had not been answered and, therefore, any error could be cured by instructing the jury to disregard it.
The trial court disputed counsel's assertion that Dr. Herbert had not responded to the question, stating that she had heard him say "yes."[1] Regardless, the trial court concluded that the question was "overwhelmingly prejudicial," and it could not see how the jurors could be made to forget what they had heard. Accordingly, the trial court granted defendants' motion for a mistrial.[2] With regard to defendants' request for sanctions, the court stated that the action of plaintiff's counsel had caused the mistrial, and it believed that "a practitioner of [his] experience" should have known that the question was "highly prejudicial and not relevant to any issue in this case." Therefore, the court ordered plaintiff's counsel to pay mistrial sanctions. The court awarded $7,500 in attorney fees and $10,000 to defendants to compensate them for the income they had lost in the three days they had spent in court. In addition, the court awarded $910 as reimbursement for the cost of flying a witness in from Boston for the trial.
Plaintiff filed an interlocutory application for leave to appeal. This Court, in lieu of granting leave to appeal, reversed the trial court's award of sanctions on the basis that the sanctions were premature before final resolution of the case.[3]
*105 In October 1996, a trial was held before Judge Denise Langford Morris. The jury returned a verdict of no cause of action in favor of defendants. Subsequently, defendants renewed their motion for mistrial sanctions. Judge Langford Morris instructed the parties to provide the transcript of the mistrial and authority in support of their positions. Subsequently, Judge Langford Morris reinstated the award of sanctions for the reasons set forth in the opinion issued by Judge Gage. The order incorporating all the posttrial rulings was entered on April 21, 1997. This Court granted plaintiff's delayed application for leave to appeal.
I
Plaintiff first argues that the question posed by counsel was not improper. The trial court has the discretion to control the questioning of witnesses, and we review its determination of the scope of cross-examination for an abuse of discretion. Richardson v. Ryder Truck Rental, Inc.,
Under MRE 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. However, pursuant to MRE 608(b), a court may, in its discretion, allow inquiry regarding specific instances of the conduct of a witness for the purpose of attacking or supporting the witness' credibility where the conduct at issue is probative of the witness' character for truthfulness or untruthfulness.
In Heshelman v. Lombardi,
Mere unproven accusations of malpractice stated in a complaint cannot be used as a basis for attacking a physician's knowledge and credibility. Such allegations of malpractice are analogous to unproven charges of criminal activity. Arrests and charges not resulting in conviction may not be used for impeachment. Similarly, the mere fact that someone has been named as a defendant in a malpractice lawsuit may not be used to impeach his credibility as an expert witness. [Id. (citations omitted).]
Approximately five years later, our Supreme Court addressed the propriety of posing various questions to experts in medical malpractice cases in Wischmeyer v. Schanz,
In the present case, plaintiff argues that the question regarding other medical *106 malpractice actions was proper because Dr. Herbert was testifying as an expert on his own behalf and, therefore, his past failures were relevant. Plaintiff's argument fails, however, because the question posed by counsel did not address any alleged misdiagnoses made by Dr. Herbert in other cases. Rather, plaintiff's counsel asked whether Dr. Herbert had previously been a defendant in multiple other medical malpractice cases. Both the Wischmeyer and the Heshelman Courts held that evidence of prior malpractice actions against a witness is not relevant to the witness' competency or knowledge. Thus, the trial court correctly ruled that the question was improper.
Plaintiff also contends that the question was proper because it was an attempt to explore the bias of Dr. Herbert's experts. Plaintiff notes that in Wilson v. Stilwill,
Plaintiff notes that in Wischmeyer the Supreme Court did not hold that evidence of prior medical malpractice actions would never be relevant. See Wischmeyer, supra at 482, n. 25,
II
Plaintiff next asserts that, even if counsel's question were improper, the trial court erred in granting defendants' motion for a mistrial. Whether to grant or deny a mistrial is within the discretion of the trial court and will not be reversed on appeal absent an abuse of discretion resulting in a miscarriage of justice. Schutte v. Celotex Corp.,
Plaintiff argues that the trial court should not have declared a mistrial because counsel's question did not unfairly prejudice defendants. Plaintiff notes that in Wischmeyer the Supreme Court found that the defendant's inquiry into an unrelated medical malpractice action against the plaintiff's expert constituted harmless *107 error. See Wischmeyer, supra at 482-483,
Plaintiff also cites a number of cases in which this Court found that a single improper comment constituted harmless error. However, this Court has never held that an inappropriate reference to prejudicial matters will be harmless in all circumstances. The prejudicial effect of the comment must be evaluated case by case.
In the present case, plaintiff's counsel failed to establish that the question had a proper purpose. Moreover, the form of the question was particularly prejudicial, because it implied plaintiff's counsel had knowledge that Dr. Herbert had been sued for malpractice six or eight times. Finally, the prejudice was exacerbated by the fact that, unlike in Wischmeyer and Heshelman, the question was directed to a defendant rather than a mere expert witness. The jury may well have believed that it was more likely that Dr. Herbert committed malpractice in the instant case because he had been accused of malpractice in other cases. Under the circumstances, the trial court did not abuse its discretion in concluding that a mistrial was required because a curative instruction would not have sufficed to cure the prejudice to defendants.[5]
We reject plaintiff's argument that counsel had a legitimate expectation that the question was proper because defendants failed to file a motion in limine to exclude evidence of other malpractice suits against Dr. Herbert. There is no requirement that a party anticipate every improper question that an opponent might ask and file a motion in limine to prevent it. The rules of evidence provide that, to the extent practicable, jury proceedings shall be conducted so as to prevent inadmissible evidence from being suggested to the jury by any means. See MRE 103(c). The Supreme Court decided Wischmeyer more than two months before the trial, and this Court decided Heshelman more than 5 1/2 years before the trial. Thus, plaintiff's counsel could not have had a legitimate belief that the question was proper.
III
Plaintiff next argues that the trial court did not have the authority to impose awards of defendants' attorney fees and lost income, as well as the travel expenses of a witness. Whether the trial court has the authority to impose such awards as a sanction is a question of law, subject to review de novo. See Miller v. Allied Signal, Inc.,
The trial court based its imposition of sanctions on plaintiff's counsel on its inherent authority to penalize misconduct. Plaintiff maintains that the award of sanctions was improper because it was not specifically authorized by court rule or statute. In support of this argument, plaintiff relies on M.C.L. § 600.2401; MSA 27A.2401 and M.C.L. § 600.2455; MSA 27A.2455. The former statute provides:
Except as otherwise provided by statute, the supreme court shall by rule regulate the taxation of costs. When costs are allowed in any action or proceeding in the supreme court, the circuit court or the district court the items and amount thereof shall be governed by this chapter except as otherwise provided *108 in this act. [MCL 600.2401; MSA 27A.2401.]
The latter statute states:
Costs in the circuit court, in the district court, and in municipal courts of record having civil jurisdiction, may be taxed by any of the judges or clerks of the courts and upon notice and proceedings as shall be provided by the rules of the supreme court. [MCL 600.2455; MSA 27A.2455.]
We conclude, however, that these statutes apply only to fee-shifting rules that actualize a substantive policy, such as a statute that permits a prevailing party in certain classes of litigation to recover fees.[6] These statutes do not affect a court's exercise of its inherent powers, because the primary source of judicial power is constitutional in origin. See Const. 1963, art. 3, § 2; Const. 1963, art. 6. The judiciary possesses all the authority necessary to exercise its powers as a coordinate branch of government. In re
Plaintiff correctly states that attorney fees generally are not recoverable from the losing party as costs in the absence of an exception set forth in a statute or court rule expressly authorizing such an award. See McAuley v. General Motors Corp.,
This Court has repeatedly recognized that a trial court has inherent authority to impose sanctions on the basis of the misconduct of a party or an attorney.[8] See Prince v. MacDonald,
In Cummings, supra at 252-253,
Plaintiff, relying on Benmark v. Steffen,
An exercise of the court's inherent power may be disturbed only upon a finding that there has been a clear abuse of discretion. Brenner, supra at 160,
The trial court found that plaintiff's counsel is an experienced attorney who should have known better than to ask Dr. Herbert about other malpractice suits against him. Plaintiff does not contend that this finding is clearly erroneous. See Cipri v. Bellingham Frozen Foods, Inc.,
Finally, the trial court properly limited the sanction to the attorney fees defendants incurred as a result of plaintiff's counsel's misconduct. Thus, defendants were awarded attorney fees only for the time their attorneys spent in court during the abrogated trial. Defendants were not compensated for any attorney fees related to trial preparation, which could be used at the retrial, or for the attorney fees incurred during the retrial. Thus, the trial court simply attempted to put defendants in the position they would have been in absent the misconduct of plaintiff's counsel.
However, with regard to the awards of lost income and travel expenses related to producing a witness for the trial, we conclude that the trial court abused its discretion. Unlike the award of attorney fees, compensation for lost income and travel expenses does not constitute a traditional sanction for party misconduct, and we do not believe that awarding such compensation is appropriate or wise. The imposition of such awards would open Pandora's box with respect to sanctions for litigant misconduct. For example, should a criminal defendant be compensated for lost income when a prosecutor causes a mistrial? If such a step is to be taken, we believe that it should be done by the Legislature or our Supreme Court. Accordingly, we reverse the portion of the trial court's award that compensates defendants for lost income and travel expenses.
IV
Plaintiff also claims that the amount of the sanction imposed on counsel was excessive. We disagree.
After questioning the three defense attorneys regarding their respective hourly rates, Judge Gage awarded $7,500 in attorney fees. Plaintiff asserts that the trial court erred in not addressing the factors set forth in Crawley v. Schick,
Lastly, plaintiff contends that Judge Langford Morris abused her discretion by reinstating Judge Gage's award of mistrial sanctions without first subjecting the amount of the award to additional review. However, when defendants asked Judge Langford Morris to reimpose the sanctions following the retrial, plaintiff contended only that Judge Gage's award of mistrial sanctions could not be reinstated because it had been reversed by this Court. In the brief in support of her motion for reconsideration, plaintiff's sole argument was that the trial court did not have the authority to impose the sanctions. Because plaintiff never argued to Judge Langford Morris that the amount of the requested sanctions was excessive, the latter's failure to hold an evidentiary hearing to address the issue was not an abuse of discretion.
Affirmed in part and reversed in part.
COLLINS, P.J., concurred.
SAWYER, J. (concurring in part and dissenting in part).
While I agree with the majority's conclusions on the first two issues, I respectfully dissent from the remainder of their opinion.
I do not address the question whether the majority is correct that it is within the inherent authority of the trial court to impose sanctions for causing a mistrial, because I do not believe that the facts of this case support the imposition of monetary sanctions based on the conduct of plaintiff's counsel. While I agree with the majority that the trial court did not abuse its discretion in granting a mistrial based on the question posed by counsel, I cannot agree that that conduct was so flagrant as to warrant the imposition of sanctions beyond the granting of a mistrial itself.
The cases in which such monetary sanctions have been imposed involved conduct akin to fraud or frivolous claims. For example, in Prince v. MacDonald,
I simply do not accept that significant monetary sanctions are appropriate for the conduct in the case at bar. While the question was improper, it does not rise to the level of fraud or the like. Plaintiff offered a reason for asking the question, albeit a reason ultimately rejected by the trial court and this Court. I cannot, however, say that the reason proffered by plaintiff is so frivolous as to warrant sanctions (beyond mistrial). I further note that plaintiff had not been precluded from asking the question by an order in limine.
In short, I join the majority in their conclusions on the first two issues, but dissent from their conclusion that any monetary sanctions are appropriate under the facts of this case.
NOTES
Notes
[1] On appeal, plaintiff continues to assert that Dr. Herbert never responded to counsel's question. As plaintiff points out, the transcript of the videotaped proceedings does not contain any indication that Dr. Herbert made any reply to the question before defense counsel objected. However, at the beginning of his cross-examination of Dr. Herbert, plaintiff's counsel cautioned the witness that, because there was no court reporter, it was extremely important that he be allowed to complete his questions before the witness began to answer so the audio recording system could pick up every statement. Thus, it is possible that any response by Dr. Herbert was lost in the vociferous objections of the defense attorneys. Plaintiff claims that the videotape "clearly indicates" that the witness never attempted to answer the question. However, because plaintiff did not provide the videotape to this Court, we are unable to review it for ourselves.
[2] The trial judge noted that, in seventeen years on the bench, this was only the second time that she had declared a mistrial.
[3] Estate of Mildred Mikoljeski v. William Beaumont Hosp., unpublished order of the Court of Appeals, entered March 14, 1996 (Docket No. 192155).
[4] Plaintiff submitted documentary evidence showing that Dr. Herbert named the two experts as expert witnesses in another case, and defendant Beaumont Hospital named the same two experts as expert witnesses in a separate case. Plaintiff has provided no evidence that Dr. Herbert used the two experts in six or eight other cases. Moreover, the question posed by plaintiff's counsel was not limited to the actual number of other lawsuits in which Dr. Herbert had named the two experts. Rather, the question incorporated numerous other medical malpractice actions against Dr. Herbert.
Plaintiff argues that counsel should have been permitted to explore whether the two experts had received repeat business from Dr. Herbert, which might indicate that their testimony was biased. However, as the trial court observed, the proper time for plaintiff's counsel to have investigated this area was during pretrial discovery. See Rockwell v. Vandenbosch,
[5] Even if we were to find that the trial court abused its discretion in granting defendants' motion for a mistrial, there is no remedy that this Court can grant. The dismissal of the jury necessitated a retrial, which has already taken place.
[6] As this Court has stated, "`[P]olicy selection is the task of the Legislature, not the prerogative of the judiciary.'" People v. Valentin,
[7] This Court has also found that an exception to the general rule exists where the parties seeking to recover attorney fees as damages have been forced to expend money to defend because of the wrongful acts of another. See Warren v. McLouth Steel Corp.,
[8] The United States Supreme Court has explained:
It has long been understood that "[c]ertain implied powers must necessarily result to our Courts of justice from the nature of their institution," powers "which cannot be dispensed with in a Court, because they are necessary to the exercise of all others." United States v. Hudson, 7 Cranch [(11 U.S.)] 32, 34 [
[9] This Court has previously found that a court could require a party to pay the other party's attorney fees as compensation for its losses. In McKelvie v. Mount Clemens,