Kiefer v. Markley

769 N.W.2d 271 (2009) 283 Mich. App. 555 KIEFER v. MARKLEY. Docket No. 280769. Court of Appeals of Michigan. Submitted February 3, 2009, at Lansing. Decided April 28, 2009, at 9:00 a.m. DeNardis, McCandless & Miller, P.C. (by Linda M. Galante and Ronald F. DeNardis), Mount Clemens, for the plaintiffs. O'Connor, DeGrazia, Tamm & O'Connor, P.C. (by Julie McMann O'Connor), Bloomfield Hills, for the defendants. *272 Before: WHITBECK, P.J., and O'CONNELL and OWENS, JJ. OWENS, J. Plaintiffs appeal as of right the trial court's order granting defendants' motion in limine to strike plaintiffs' expert witness, Dr. Frederick A. Valauri, pursuant to MCL 600.2169(1)(b). We consider this case without oral argument, pursuant to MCR 7.214(E), and affirm. Issues of statutory construction are reviewed de novo on appeal. Wickens v. Oakwood Healthcare Sys., 465 Mich. 53, 59, 631 N.W.2d 686 (2001); Grossman v. Brown, 470 Mich. 593, 598, 685 N.W.2d 198 (2004). However, a trial court's ruling regarding a proposed expert's qualifications to testify is reviewed for an abuse of discretion. Woodard v. Custer, 476 Mich. 545, 557, 719 N.W.2d 842 (2006); Wolford v. Duncan, 279 Mich.App. 631, 637, 760 N.W.2d 253 (2008). An abuse of discretion occurs when the decision results in an outcome falling outside the range of principled outcomes. Woodard, supra at 557, 719 N.W.2d 842, citing Novi v. Robert Adell Children's Funded Trust, 473 Mich. 242, 254, 701 N.W.2d 144 (2005). When interpreting a statute, the primary goal is to give effect to the Legislature's intent. Brown v. Detroit Mayor, 478 Mich. 589, 593, 734 N.W.2d 514 (2007); Grossman, supra at 598, 685 N.W.2d 198. The language of the statute must first be reviewed. Judicial construction is neither required nor permitted if the statute is unambiguous on its face. It is assumed the Legislature intended the words expressed if the statute is unambiguous. Brown, supra at 593; Grossman, supra at 598, 685 N.W.2d 198. Courts may consult dictionary definitions of terms that are not defined in a statute. Woodard, supra at 561, 719 N.W.2d 842; People v. Perkins, 473 Mich. 626, 639, 703 N.W.2d 448 (2005). Plaintiffs argue that the trial court erred by finding that the language "devoted a majority of his or her professional time" in MCL 600.2169(1)(b) requires a physician to devote more than 50 percent of his or her professional time to the relevant specialty in order to be qualified to testify as an expert witness. Plaintiffs further argue that the 30 to 40 percent of Dr. Valauri's time that was devoted to hand surgery constituted the majority of his professional time spread among the three different areas in which he practiced (hand surgery, reconstructive surgery of the extremities, and cosmetic surgery) and as such should be sufficient to qualify him to testify for purposes of MCL 600.2169(1)(b). We disagree. The only issue in this case is whether Dr. Valauri devoted a sufficient amount of time to hand surgery in his practice to qualify as an expert witness under MCL 600.2169, which provides in relevant part as follows: (1) In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets the following criteria: (a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty. (b) Subject to subdivision (c), during the year immediately preceding the date of the occurrence that is the basis for *273 the claim or action, devoted a majority of his or her professional time to either or both of the following: (i) The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, the active clinical practice of that specialty. [Emphasis added.] The "specialty requirement is tied to the occurrence of the alleged malpractice and not unrelated specialties that a defendant physician may hold." Tate v. Detroit Receiving Hosp., 249 Mich.App. 212, 218, 642 N.W.2d 346 (2002). In Woodard, the Court quoted the language of MCL 600.2169(1)(b), noting: Obviously, a specialist can only devote a majority of his professional time to one specialty. Therefore it is clear that § 2169(1) only requires the plaintiff's expert to match one of the defendant physician's specialties. * * * ... As we explained above, one cannot devote a `majority' of one's professional time to more than one specialty. [Woodard, supra at 560, 566, 719 N.W.2d 842 (emphasis in original).][[1]] The plaintiff's expert must have devoted a majority of his or her professional time during the year immediately preceding the date on which the alleged malpractice occurred to practicing or teaching the one most relevant specialty the defendant physician was practicing at the time of the alleged malpractice. Id. See also Reeves v. Carson City Hosp. (On Remand), 274 Mich.App. 622, 630, 736 N.W.2d 284 (2007) (remanding to the trial court to determine whether the plaintiff's expert spent the majority of his time in the active clinical practice of emergency medicine, the instruction of students in the relevant specialty, or as the medical director of emergency services and board member, advisor, and consultant to various entities). The language in § 2169(1)(b) is unambiguous, and judicial construction is neither required nor permitted. Brown, supra; Grossman, supra. The statute states that the expert must have spent the majority of his or her time the year preceding the alleged malpractice practicing or teaching the specialty the defendant physician was practicing at the time of the alleged malpractice. MCL 600.2169(1)(b). To the extent the word "majority" needs explanation, it is defined as, "the greater part or larger number; more than half of a total." Webster's New World Dictionary, 2d College Ed. (1980). MCL 600.2169(1)(b), therefore, requires a proposed expert physician to spend greater than 50 percent of his or her professional time practicing the relevant specialty the year before the alleged malpractice. Dr. Valauri testified he spent only 30 to 40 percent[2] of his time in the practice of hand *274 surgery, which, being a plurality rather than a majority of his time, is insufficient to qualify him as an expert for purposes of MCL 600.2169(1)(b). Given the unambiguous language of the statute and the caselaw on this issue, this panel is constrained to affirm the trial court's decision. However, we note that this is not a result we think the Legislature intended. Defendant Dr. John M. Markley was board-certified in plastic surgery with an added qualification in hand surgery, as was Dr. Valauri. We believe that this similarity, coupled with the fact that Dr. Valauri spent more than 50 percent of his time in the area of hand surgery and the closely related area of reconstructive surgery of other extremities, should qualify him as an expert in this situation. Nonetheless, we reluctantly hold that the trial court did not abuse its discretion by granting defendants' motion in limine to strike plaintiffs' expert witness. Woodard, supra at 557, 719 N.W.2d 842; Wolford, supra at 637, 760 N.W.2d 253. We further note that although we believe that Dr. Valauri should qualify as an expert, we do not agree with the dissent's rationale. Using the definition of "majority" advocated by our colleague, an expert could engage in 11 different areas of practice, but because the expert spent 10 percent of his or her time in one area (greater than the amount of time spent in any other) he or she would qualify as an expert in that area. Although admittedly unlikely, this scenario demonstrates that defining "majority" as "an amount that represents the largest percentage of the whole, even if this amount is less than 50 percent," could result in expert opinions being rendered by under-qualified individuals. Affirmed. WHITBECK, P.J., concurred. O'CONNELL, J., (dissenting). The majority concludes that the words "devoted a majority of his or her professional time" in MCL 600.2169(1)(b) requires a physician to devote more than 50 percent of his professional time to the relevant subspecialty in order to be qualified to testify as an expert witness. I disagree. Although the majority adopts one credible interpretation of an ambiguous statute, I believe the correct interpretation of the phrase "devotes a majority of his or her professional time" means just that; the doctor spends the majority of his or her professional time as a board-certified plastic surgeon who practices the trade. In this case, in 2003 Dr. Frederick A. Valauri spent all his professional time working in his capacity as a board-certified plastic surgeon, and he spent more time practicing in the subspecialty of hand surgery than in any other subspecialty.[1] This, in my opinion, is sufficient to qualify him to provide expert testimony pursuant to MCL 600.2169(1)(b). In my opinion, putting up impossible barriers and expecting plaintiffs' experts to leap over those barriers was not the intent behind the statute.[2] *275 In Casco Twp. v. Secretary of State, 261 Mich.App. 386, 390-391, 682 N.W.2d 546 (2004), this Court set forth the standard for interpreting an ambiguous statute: The primary goal in statutory construction is to ascertain and give effect to the intent of the Legislature. When a statute's language is clear and unambiguous, we must assume that the Legislature intended its plain meaning and enforce the statute as written. It is only when the statutory language is ambiguous that this Court is permitted to look beyond the statute to determine the Legislature's intent. Statutory language is considered ambiguous when reasonable minds can differ with respect to its meaning. When construing an ambiguous statute, "[t]he court must consider the object of the statute, the harm it is designed to remedy, and apply a reasonable construction that best accomplishes the statute's purpose, but should also always use common sense." In this regard, courts should seek to avoid a construction that would produce absurd results, injustice, or prejudice to the public interest. [Citations omitted.] I agree with the majority opinion that the only issue in this case is whether Dr. Valauri devoted a sufficient percentage of his practice to hand surgery to qualify as an expert witness.[3] MCL 600.2169 provides, in relevant part, as follows: (1) In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets the following criteria: (a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty. (b) Subject to subdivision (c), during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following: (i) The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if *276 that party is a specialist, the active clinical practice of that specialty. The conceptual difficulty that bedevils the present case is attributable to the use of the term "majority" in the statute and the common understanding of the term majority among most people in our society. Years ago, this Court, referring to an opinion by the United State Supreme Court, stated: The phenomenon of identical words meaning different things, even in a single document, such as an insurance contract or statute, let alone in two separate documents, is neither unique to the case at bar nor to the elasticity and inherent limitations of the English language. Nat'l Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 258, 114 S.Ct. 798, 804-05, 127 L.Ed.2d 99, 109 (1994) (recognizing that the statutory term "enterprise" in 18 USC 1962[a] and [b] does not import an economic motive that is required in conjunction with the term "enterprise" in 1962[c] because "enterprise" was used in two different senses in the different subparagraphs). [Cavalier Mfg. Co. v. Employers Ins. of Wausau, 211 Mich.App. 330, 341, 535 N.W.2d 583 (1995).] The fact that one word may have multiple meanings depending on its use only adds to the confusion. Such is the case with the term "majority." Random House Webster's College Dictionary (1997), defines the term "majority" as follows: "1. the greater part or number; a number larger than half the total. 2. the amount by which the greater number surpasses the remainder (disting. from plurality)."[4] Depending on the context and the speaker, the term "majority" can have one of two conflicting meanings. A "majority" could refer to an amount that exceeds 50 percent of the total, as definition 1 indicates. Or, a "majority" could refer to an amount that represents the largest percentage of the whole, even if this amount is less than 50 percent, as definition 2 indicates. Obviously, the different meanings associated with this term indicate that the proper meaning of the term "majority" often depends on the context in which it is used and, in the absence of contextual clues indicating which definition should be adopted, this term can create ambiguity. For example, what does the sentence "A majority of votes is needed to win" mean in the context of a three-way race for an elected office? Under the first definition of "majority," the winner must receive over half the votes cast. If a candidate receives only 45 percent of the vote, he or she does not win the election, even if the competitors have each received smaller percentages of the total votes cast. But under the second definition, the winner must simply receive the most votes of any candidate; therefore, the candidate with 45 percent of the vote has the majority of votes and wins the election, because he has more votes than either of his competitors. The Legislature's use of the term "majority" in MCL 600.2169(1)(b) presents the same sort of ambiguity. MCL 600.2169(1)(b) states that a health professional called as an expert witness must have "devoted a majority of his or her professional time" in the preceding year to either the active clinical practice or the teaching of the same health profession or specialty in which the defendant physician is licensed. However, the statute fails to indicate whether an expert witness must spend over half his or her professional *277 time on a particular specialty to be qualified as an expert witness, or whether the expert witness devotes a "majority of his or her professional time" on a particular specialty (and therefore is qualified to be an expert witness) if the expert witness simply devotes a larger percentage of his or her professional time on that specialty than on any other specialty. In this case, this distinction determines whether Dr. Valauri is qualified to testify as an expert witness. Dr. Valauri devoted up to 40 percent of his practice to hand surgery in 2003, and he did not devote a larger percentage of his practice to any other specialty. Under the majority's interpretation of the statute, Dr. Valauri is not qualified to testify as an expert in this case because he did not devote at least 50 percent of his practice to hand surgery. But this interpretation assumes that the Legislature intended to define "majority" as "a number larger than half the total" when the statute does not make this intent clear. Instead, it is equally plausible that the Legislature intended for a "majority" to refer to the specialty that represented the largest percentage of a physician's practice, even if the physician spent less than half his or her professional time on that specialty. Under such an understanding of this term, Dr. Valauri would be qualified as an expert witness because he spent a majority of his time practicing the same specialty as the defendant, even though he did not devote over half his practice to the specialty. Accordingly, I believe that the majority should have recognized that MCL 600.2169(1)(b) is ambiguous and considered the Legislature's intent when interpreting the statute. After considering the object and intent of the statute, which is to ensure that an expert witness has the appropriate qualifications and knowledge to testify regarding the appropriate standard of care, I conclude that the Legislature did not intend for an expert witness to meet an arbitrary threshold in order to testify with regard to the standard of care, but intended that an expert witness is qualified to provide such testimony as long as the expert witness devoted the largest percentage of his or her practice to the same specialty as the defendant.[5] Such an interpretation ensures that the expert is familiar with the necessary standard of care without requiring a party to engage in the difficult, if not impossible, task of finding an expert whose practice paralleled that of the defendant. I would reverse the decision of the trial court. NOTES [1] In his dissent, our esteemed colleague argues that the term "majority" should refer to "an amount that represents the largest percentage of the whole, even if this amount is less than 50 percent." Let us consider a situation where a doctor spends 40 percent of his time in one area, 40 percent in a second area, and 20 percent in a third. Under our colleague's definition, this hypothetical doctor would then be in the position of devoting the "majority" of his time to two different specialties. Because the Woodard Court maintained that this is impossible, it is clear that the Woodard Court relied on a definition of "majority" as "an amount that exceeds 50 percent of the total." [2] Our colleague contends that Dr. Valauri spent 40 percent of his time in the practice of hand surgery. However, this was not his testimony. If he only spent 30 percent of his time practicing hand surgery, then even by the dissent's definition of "majority" he still would not have satisfied the requirements of MCL 600.2169(1)(b). [1] Dr. Valauri spends the rest of his time on reconstructive surgery of the extremities and on cosmetic surgery. [2] The purpose of MCL 600.2169 is to provide a guideline for the parties and courts to follow to help ensure that an expert witness is properly qualified by knowledge, skill, experience, training, or education to competently testify regarding the standard of care in the defendant doctor's area of specialty or subspecialty. The members of this panel presumably agree that Dr. Valauri meets the minimum qualifications under MRE 702 to testify as an expert in this case. However, the majority believes that MCL 600.2169 blocks the admission of Dr. Valauri as an expert because Dr. Valauri did not devote at least 50 percent of his practice to hand surgery. Unfortunately, the majority's interpretation of this statute would permit a doctor who does three surgeries a month, two of them being hand surgeries, to testify as an expert in the area of hand surgery, but would bar a doctor who does 50 surgeries each month from testifying if only 24 of them are hand surgeries. Under such a scenario, the purpose of the statute is undermined-some qualified doctors would be unable to testify, while professional witnesses and other licensed physicians who merely dabble in medicine would be qualified to testify. [3] In his deposition, Dr. Valauri testified that he devoted the majority of his practice to hand surgery. He is a member of the American Society for the Surgery of Hand. He devotes between 30 and 40 percent of his practice to hand surgery. About one-third of his practice is reconstructive surgery of the extremities, and the remaining quarter or so is cosmetic surgery. Between 1987 and 1993, approximately 80 percent of his practice was hand and extremity surgery. I would conclude that a board-certified plastic surgeon with a subspecialty in hand surgery who spends between 60 and 80 percent of his time operating on extremities and hands would be qualified to testify as an expert in this case. [4] Random House Webster's College Dictionary defines "plurality," in pertinent part, as "more than half of the whole; the majority." [5] The majority includes in its opinion a hypothetical case in which a doctor who spent 10 percent of his time practicing in one of his 11 areas of specialization would be permitted to testify as an expert if he did not devote a larger percentage of his time to the practice of any other specialty. Admittedly, under my understanding of the statute, this scenario could occur. However, the majority fails to recognize that the doctor in this hypothetical case also must pass the MRE 702 threshold to qualify as an expert witness. Under MRE 702, an individual must be "qualified as an expert by knowledge, skill, experience, training, or education" to testify as an expert. If the trial court does not find such a doctor sufficiently qualified to testify, it may not qualify the doctor as an expert. Consequently, a proper application of MRE 702 would prevent the situation described by the majority from occurring if this doctor were, in fact, unqualified to testify as an expert. See Woodard v. Custer, 476 Mich. 545, 572-574, 719 N.W.2d 842 (2006) (a proffered expert meeting the criteria contained in a subsection of MCL 600.2169 is still subject to scrutiny under MRE 702).