DRAKE v. SCHANTZ-RONTAL, 482 Mich. 890 (2008)

TRACY DRAKE, Personal Representative for the Estate of ROBERT DRAKE, Deceased, Plaintiff-Appellant, v. AMY SCHANTZ-RONTAL, M.D., ROLANDO BEREDO, M.D., DOWNTOWN MEDICAL, P.L.L.C., VASUDEV ANANTHRAM, M.D., SADASIVA REDDY, M.D., JACKSON RADIOLOGY CONSULTANTS, P.C., TIMOTHY MURRAY, M.D., CHAKRAVARTHY KANDURU, M.D., and W.A. FOOTE MEMORIAL HOSPITAL, Defendants-Appellees.

No. 135879.Supreme Court of Michigan.
July 25, 2008.

Court of Appeals No. 270225.

CAVANAGH, J.

Leave to Appeal Denied July 25, 2008.

I would grant leave to appeal.

WEAVER, J (dissenting.)

I dissent from the order and would reverse for the reasons stated by the dissenting judge in the Court of Appeals as stated below:

FITZGERALD, J. (dissenting.)

I respectfully dissent.

In my opinion, the trial court’s order striking all of plaintiffs expert witnesses as a sanction for failing to comply with discovery was an abuse of discretion. Because of the importance of expert testimony in medical malpractice actions, the trial court’s order resulted in the dismissal of plaintiffs lawsuit. Although striking witnesses is an appropriate sanction in some cases, it is important to remember that the policy of this state favors the meritorious determination of issues. Tisbury v Armstrong, [194] Mich App 19, 21; 486 NW2d 51 (1992). After reviewing the record, I do not consider plaintiffs counsel’s conduct so egregious or defendant’s prejudice so substantial that imposing what is, in essence, the most serious sanction available, is justified. See Dean v Tucker, 182 Mich App 27, 32-33; 451 NW2d 571 [(1990)] (discussing the factors to be considered when determining the appropriate sanction). The interests of justice would have been better served by limiting plaintiff to calling only those witnesses identified in her October 25, 2005, and November 17, 2005, correspondences to defendant. [Drake v Schantz-Rontal, unpublished dissenting opinion by FITZGERALD, J., entered November 20, 2007 (Docket No. 270225).]

KELLY, J. I join the statement of Justice WEAVER