Smith v. Hulett

Per Curiam. Following a jury trial, a verdict of no cause of action was entered against plaintiffs in their medical malpractice action against defendant. Plaintiffs appeal as of right alleging that the trial court erred in refusing to limit a witness’ testimony following an improper ex parte communication and erred in limiting impeachment by learned treatise. We reverse. *734 Plaintiffs sued defendant for alleged medical malpractice resulting from the diagnosis and treatment of plaintiff Orlo Smith’s broken leg. After plaintiff became dissatisfied with defendant’s services, he went to Dr. Cobb for treatment. Dr. Cobb was to testify as plaintiff’s subsequent treating physician and as an expert witness to the fact that defendant had breached the standard of care in treating plaintiff. Shortly before trial, defense counsel met with Dr. Cobb without the presence of plaintiffs’ counsel and prior to Dr. Cobb’s deposition. As a result of this ex parte conference, Dr. Cobb changed his opinion on whether defendant had breached the standard of care. Plaintiffs’ counsel moved for an adjournment in order to enlist the services of another expert witness. The trial court held that defense counsel’s actions were totally improper, noting that "one can only surmise that defense counsel . . . chose to covertly meet with Dr. Cobb for the sole purpose of undermining plaintiffs’ claim on the eve of trial.” The court, therefore, granted plaintiffs’ request for adjournment. Prior to the new trial date, plaintiffs brought a motion in limine to prevent defense counsel from cross-examining Dr. Cobb with respect to his opinion on whether defendant breached the standard of care and to preclude defense counsel from noting this omission in Dr. Cobb’s testimony to the jury. The trial court denied plaintiffs’ motion. As a result of the trial court’s ruling, plaintiffs and defendant stipulated that neither would call Dr. Cobb to testify. First, plaintiffs allege that the trial court erred in denying plaintiffs’ motion to limit Dr. Cobb’s testimony. We agree. The trial court should have limited Dr. Cobb’s testimony to matters concerning the subsequent treatment. Defendant does not appeal the trial court’s determination that the ex *735 parte meeting between defense counsel and Dr. Cobb was improper. MCR 2.302(B)(4) sets forth specific procedures involved in discovering expert witness testimony and does not include defense counsel’s meeting with an opposing party’s expert witness in an ex parte communication. Likewise, any ex parte contact between Dr. Cobb and defense counsel was precluded by the physician-patient privilege. Jordan v Sinai Hospital of Detroit, Inc, 171 Mich App 328; 429 NW2d 891 (1988). The only issue on appeal is the propriety of the sanctions imposed as a result of the impermissible ex parte conference. We find that the appropriate remedy, which the trial court should have given, would have been to preclude Dr. Cobb from testifying as to the standard of care. Plaintiffs were entitled to present Dr. Cobb’s testimony as to plaintiffs subsequent treatment without the fear of eliciting testimony which would allow defendant to present evidence of Dr. Cobb’s opinion on the breach of standard of care. We disagree with the trial court that the plaintiffs’ cross-examination would sufficiently cure any problems as to Dr. Cobb’s expert testimony on the standard of care since attacks on Dr. Cobb’s credibility would also have an adverse effect on his testimony concerning subsequent treatment. Defense counsel should not be allowed to use improper pretrial conduct to limit admissible testimony. The trial court erred in denying plaintiffs’ motion to limit Dr. Cobb’s testimony. Plaintiffs also allege that the trial court erred in refusing to allow plaintiffs’ counsel to cross-examine defendant’s expert witness through the use of statements contained in a learned treatise. We hold that the trial court did not abuse its discretion in finding that a proper foundation for the learned treatise had not been laid at the trial. *736 There was insufficient testimony to establish that the treatise was authoritative. Jones v Bloom, 388 Mich App 98, 118; 200 NW2d 196 (1972); Dziurlikowski v Morley, 143 Mich App 729, 732-733; 372 NW2d 648 (1985), affd 428 Mich 132; 405 NW2d 863 (1987). Our ruling does not preclude the admission of the textbook in the trial on remand providing a sufficient basis is laid. We reverse and remand for a new trial, requiring the court to issue a limiting order restricting Dr. Cobb’s testimony to plaintiff’s subsequent treatment.