Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  April 1, 2014                                                                     Robert P. Young, Jr.,
                                                                                               Chief Justice

  145773                                                                             Michael F. Cavanagh
                                                                                     Stephen J. Markman
                                                                                         Mary Beth Kelly
                                                                                          Brian K. Zahra
                                                                                  Bridget M. McCormack
  ESTATE OF BARBARA JOHNSON, by                                                         David F. Viviano,
  JOEDEANNA JOHNSON, Successor                                                                      Justices
  Personal Representative,
               Plaintiff-Appellee,
  v                                                      SC: 145773
                                                         COA: 297066
                                                         Wexford CC: 07-020602-NH
  ROBERT F. KOWALSKI, M.D.,
            Defendant-Appellant,
  and
  TRINITY HEALTH-MICHIGAN d/b/a MERCY
  HOSPITAL CADILLAC, FOUR SEASONS
  EMERGENCY ASSOCIATES, L.L.C., and
  MUNSON MEDICAL CENTER,
            Defendants.

  _________________________________________/

          On order of the Court, leave to appeal having been granted, and the briefs and oral
  argument of the parties having been considered by the Court, we REVERSE in part the
  judgment of the Court of Appeals and REINSTATE the March 2, 2010 judgment of the
  Wexford Circuit Court. The Court of Appeals erred in holding that the trial court abused
  its discretion in excluding from evidence correspondence between counsel for the
  plaintiff and the claims representative for Dr. Urse’s liability insurer. The trial court
  reasonably found that there was no evidence that Dr. Urse was aware of the
  correspondence, or that by executing the affidavit he was intending to confirm, or
  respond to, the facts of the case as understood by the plaintiff’s counsel. The
  correspondence at issue was not admissible under MRE 104(b) because the plaintiff
  failed to offer evidence of a condition of fact that would permit the introduction of the
  conditional evidence. Specifically, the correspondence was properly excluded under
  MRE 104(b) based on the plaintiff's failure to establish, as a factual condition precedent
  to admissibility, that Dr. Urse was aware of the correspondence. As such, the trial court
  did not abuse its discretion in failing to admit the correspondence into evidence.
                                                                                                               2


        In light of our holding, we also VACATE that portion of the Court of Appeals
judgment holding that the trial court abused its discretion in not admitting Dr. Urse’s
affidavit. Given that the trial court did not abuse its discretion in refusing to admit the
correspondence, the Court of Appeals correctly concluded that any error in not admitting
the affidavit was harmless because the trial court allowed the contents of the affidavit into
evidence, allowed the plaintiff’s counsel to discuss its contents during closing argument,
and instructed the jury to consider whether the affidavit contradicted Dr. Urse’s
testimony.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         April 1, 2014
        t0325
                                                                             Clerk
