                             STATE OF MICHIGAN

                               COURT OF APPEALS



ROY RUSHA,                                                            UNPUBLISHED
                                                                      October 4, 2016
                 Plaintiff-Appellant,

v                                                                     No. 326745
                                                                      Wayne Circuit Court
ADAM M EDELMAN MD, BADAI                                              LC No. 13-006487-NH
ABDELATIF MD, RAMESH KILARU MD,
LISA REEVES MD, CORIZON HEALTH OF
MICHIGAN a/k/a CORIZON HEALTH INC f/k/a
PRISON HEALTH SERVICES (PHS), and
CORIZON INC d/b/a CORRECTIONAL
MEDICAL SYSTEMS,

                 Defendant-Appellees,

and

JEFFREY STIEVE MD, VASILIOS POZIOS MD,
and PATRICK GEML PA,

                 Defendants.


Before: SHAPIRO, P.J., and HOEKSTRA and RONAYNE KRAUSE, JJ.

PER CURIAM.

        Plaintiff appeals by right the trial court’s grant of summary disposition in favor of the
defendants who remained in the case after various dismissals not at issue in this appeal.1 The
trial court accurately summarized that “[t] he gravamen of plaintiff’s claim is that he was
diagnosed with multiple sclerosis (‘MS’) and that he had a seizure disorder and that he was not
given proper treatment [by defendants] while incarcerated. As a result, plaintiff contends, the
conditions were allowed to progress when they could have been effectively controlled with
proper medical treatment.” The trial court disallowed plaintiff’s treating physician from
presenting evidence as an expert, and it therefore concluded that plaintiff’s remaining experts


1
    For convenience, “defendants” will refer only to the defendants presently at issue.


                                                  -1-
could not “quantify loss or probability that plaintiff’s result would have been different had
plaintiff been referred to a neurologist [as plaintiff contended].” The trial court further
characterized the matter as a “lost opportunity to achieve a better result” claim and, because
plaintiff could not establish the statutorily required “greater than 50%” loss of opportunity under
MCL 600.2912a(2), granted summary disposition in favor of defendants. We do not find the
trial court’s exclusion of the expert to be error under the circumstances, but the trial court
incorrectly found this to be a “lost opportunity” case. Rather than attempt to evaluate
defendants’ alternate ground for affirmance on the existing record, we vacate and remand for
further proceedings.

                                           I. OVERVIEW

       Plaintiff was incarcerated in a facility that contracted with defendants to provide medical
services to inmates. Plaintiff contends that he suffered from multiple sclerosis. It is undisputed
that he saw defendants numerous times for a variety of ailments. It is also undisputed that
defendants did not, inter alia, refer plaintiff to a neurologist, treat him for MS, or, apparently,
believe that he had MS. Plaintiff contends that defendants improperly treated him. Whether or
not defendants actually improperly treated him is not at issue in this appeal. The evidence,
chaotic as it is, appears to indicate, insofar as we can determine, that plaintiff did consistently tell
defendants that he had a history of MS during his treatment with them. Furthermore, the
evidence indicates that defendants did actually take plaintiff’s reports seriously enough to review
the records available to him and perform some diagnostic tests, and they concluded that he did
not have MS. Plaintiff was diagnosed with MS after his release. Some medical records indicate
that he may have received a diagnosis earlier, but defendants seemingly did not receive those
records until after plaintiff’s discharge.

                                   II. PROCEDURAL HISTORY

        The tortuous procedural history of this case is, unfortunately, relevant to one of the issues
on appeal. Plaintiff filed his complaint on May 17, 2013. The trial court entered a scheduling
order on October 29, 2013, requiring witnesses to be exchanged by January 24, 2014, and cutting
off discovery on March 28, 2014. A settlement conference was scheduled for the “Case
Evaluation date Plus 42 days”; although case evaluation was not specified more narrowly than
“May, 2014.” Defendants filed a motion for partial summary disposition on July 30, 2013, and a
motion to limit the affidavits of merit on August 9, 2013. The trial court entered a scheduling
order on July 30, 2013, setting a hearing on the motion for partial summary disposition for
December 20, 2013; however, the lower court register of actions indicates that it was reset to
January 31, 2014, and then to January 23, 2014, although we can find no orders obviously doing
so in the lower court record. The trial court subsequently entered several substantively identical
orders on November 11, 2013, December 19, 2013, and December 20, 2013; one of which
referenced the motion to limit affidavits of merit and the others did not reference any motion
whatsoever, stating that oral argument was scheduled for January 31, 2014, and that responses to
the motion were due by January 17, 2014.

       Defendants filed a witness list on January 22, 2014. We can find no order specifying a
hearing date of January 23, 2014. Nevertheless, on January 23, 2014, the trial court entered an
order granting partial summary disposition in favor of defendants and dispensing with oral

                                                  -2-
argument because plaintiff had not filed a timely response. Plaintiff filed a response to the
motion for partial summary disposition the next day. Apparently, a hearing was in fact held on
January 31, 2014, where plaintiff contends he first learned of the order and the untimeliness of
his response. Plaintiff admitted that he had, however, received the scheduling order specifying a
January 17, 2014, deadline and had overlooked it. On February 18, 2014, defendants filed a
motion to dismiss and/or for discovery sanctions based on plaintiff’s failure to file a witness list
and otherwise comply with discovery orders. The lower court register of actions reflects a
motion hearing held on March 12, 2014, no transcript of which has been provided. On the same
day, the trial court entered an order requiring plaintiff to file his witness list within ten days and
keeping discovery “open to the settlement conference date.” The trial court otherwise denied
plaintiff’s motion for reconsideration, stating that plaintiff had received the scheduling order but
failed to open it.

        Plaintiff filed his 43-page witness list the same day, on March 12, 2014. In relevant part,
Dr. David Mathis, M.D., was listed as plaintiff’s expert “in the field of Primary Care/Family
Practice,” and Dr. Neil J. Farber, M.D., was listed as plaintiff’s expert “in the field of Internal
Medicine.” Several other doctors were noted as potential “standard of care and/or proximate
cause” witnesses. Notably, however, Dr. Omar Ahmad, M.D., the expert witness at issue, was
not named anywhere on that list, in any capacity. Although the witness list included “Any and
all physicians, nurses, therapists, technicians, assistants, aides, agents and/or employees,
involved in the case and treatment of Roy Rusha at [various institutions], including, but not
limited to” the individually named persons; according to his CV, Dr. Ahmad is associated with
the Michigan Neuroscience Clinic, which was not among the institutions named.

        However, defendants were actually aware of Dr. Ahmad and that Dr. Ahmad was one of
plaintiff’s post-incarceration treating physicians.2 Defendants do not dispute that on August 19,
2014, they served notice on Dr. Ahmad for taking his deposition and to produce records on
August 29, 2014. Just over a week later, defendants re-noticed Dr. Ahmad’s deposition for a
different date. Defendants subsequently cancelled the deposition altogether.

       On April 14, 2014, the parties stipulated to adjourn case evaluation. The trial court
entered an order setting case evaluation for July of 2014 and holding “[d]iscovery open to new
evaluation date.” In the meantime, defendants moved to compel discovery, arguing that they had
served various discovery requests on plaintiff, responses to which had been due in October of
2013 but most of which remained outstanding. Almost two months later, the trial court entered
an order requiring plaintiff to “provide the remaining discovery within 14 days” and “provide
available dates for his deposition within 7 days.” The trial court subsequently granted what was
apparently a unanimous request by all parties to further extend discovery by handwriting on a




2
  As will be discussed, the trial court’s ruling expressly permitted plaintiff to offer testimony
from Dr. Ahmad as a factual witness as one of plaintiff’s treating physicians, but not as an expert
witness.


                                                 -3-
faxed letter3 that the settlement conference would be pushed back by a month and discovery
would remain open to that date.

        In October, plaintiff filed a motion seeking to extend discovery. Plaintiff stated that by
then, the settlement conference was set for October 4, 2014. Plaintiff did not specifically name
Dr. Ahmad, but did assert that defense counsel had unilaterally cancelled a number of
depositions without any consultation with plaintiff’s counsel. Defendants responded by arguing
that discovery had been extended multiple times already due to various failures on plaintiff’s part
and that defendants had been entirely cooperative. In support of the latter assertion, defendants
attached a tome of printouts of various email correspondences between counsels. The trial court
ultimately granted plaintiff a small measure of relief and ordered that “Plaintiff may depose
Defendants’ standard of care experts (only) within 30 days (on or before November 30, 2014).”

        Defendants had, in the meantime, also filed a motion for summary disposition arguing
that on the basis of the testimony from plaintiff’s expert witnesses, plaintiff was unable to
establish a prima facie case of medical malpractice. In relevant part, defendants argued that
plaintiff’s malpractice claim was based on “[lost] opportunity to achieve a better result.”
Defendants also argued that plaintiff’s experts, not being neurologists, could not actually render
an opinion whether defendants’ actions proximately caused anything, so a “traditional” medical
malpractice analysis must also fail. The trial court entered a scheduling order setting a hearing
date for February 6, 2015, and requiring plaintiff’s response to be filed and served by 4:00 pm on
January 23, 2015.

         Plaintiff responded that he had provided evidence showing that he suffered direct harm in
the form of actual, not speculative, degeneration of his MS condition. He alleged that during his
incarceration, defendants ignored his medical history and his symptoms of MS, and they refused
to treat him or permit him to be treated properly. Plaintiff attached, for the first time, an affidavit
from Dr. Ahmad. The affidavit set forth several opinions held by Dr. Ahmad as well as several
statements of fact based on Dr. Ahmad’s treatment of plaintiff. Plaintiff’s response was filed at
4:21:52 pm on January 23. Defendants pointed this tardiness out in their reply, as well as the 33-
page length thereof in violation of MCR 2.119(A)(2).

        Defendants contended, baldly, that plaintiff had conceded that the case was a “lost
opportunity” action.4 Defendants also argued that Dr. Ahmad’s affidavit should be struck
because he had not been on plaintiff’s witness list, that the affidavit was speculative and did not
support plaintiff’s position in any event, and that plaintiff’s own evidence showed that he had not
really suffered any harm. The trial court held a brief hearing at which plaintiff reiterated that


3
  We cannot find an independent copy of that document in the record, or indeed any other order
to that effect. The lower court register of actions reflects nothing on that date. However, it does
state in a note regarding case evaluation later that its date had been changed “per p/c/ from court
on 6/12.”
4
  As we will discuss in greater detail, we find absolutely no such concession anywhere in any
pleading from plaintiff.


                                                 -4-
defendants had known of Dr. Ahmad and cancelled the deposition themselves, that he was not
pursuing a lost opportunity claim, and that he had complied with scheduling orders.

        The trial court ruled that Dr. Ahmad would not be permitted to testify as an expert
because he had not been listed as one, but that Dr. Ahmad would be permitted to testify as a fact
witness. The trial court took the remainder of the motion under advisement. The trial court
subsequently entered an opinion and order that, in relevant part, seemingly assumed without
analysis that the instant action was, in fact, a “lost opportunity” claim. The trial court concluded
that even if it took as a given that plaintiff did have MS prior to entering prison, without Dr.
Ahmad’s affidavit, plaintiff’s remaining experts presented only equivocal testimony and could
not establish the requisite proximate causation. The trial court therefore granted summary
disposition in favor of defendants. The trial court subsequently denied plaintiff’s motion for
reconsideration, clarifying that it found the claim to be a “lost opportunity” one based on
plaintiff’s assertion that if defendants had treated him properly, plaintiff “lost 100% chance of
avoiding further progression and advancement of his disease.” This appeal followed.

                                  III. STANDARD OF REVIEW

        A grant of summary disposition under MCR 2.116(C)(10) is reviewed de novo on the
basis of the entire record to determine if the evidence, when viewed in the light most favorable to
the non-moving party, establishes a genuine issue regarding any material fact. Maiden v
Rozwood, 461 Mich 109, 118-120; 597 NW2d 817 (1999). The trial court’s decision whether to
admit evidence is reviewed for an abuse of discretion, but preliminary legal determinations of
admissibility are reviewed de novo; it is necessarily an abuse of discretion to admit legally
inadmissible evidence. People v Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010). This Court
otherwise reviews de novo the trial court’s determinations of law; however, any factual findings
made by the trial court in support of its decision are reviewed for clear error, and ultimate
discretionary decisions are reviewed for an abuse of that discretion. Herald Co, Inc v Eastern
Mich Univ Bd of Regents, 475 Mich 463, 470-472; 719 NW2d 19 (2006). Under the abuse of
discretion standard, this Court “cannot disturb the trial court’s decision unless it falls outside the
principled range of outcomes.” Id. at 472. The trial court has the discretion to disallow
testimony from a witness not properly listed on a witness list, but the trial court must carefully
consider the circumstances of the case to determine whether such a drastic sanction is truly the
most appropriate sanction. MCR 2.401(I)(2); Duray Development LLC v Perrin, 288 Mich App
143, 162, 164-165; 792 NW2d 749 (2010).

                         IV. DR. AHMAD AS AN EXPERT WITNESS

         Resolution of this appeal turns in significant part on the second issue raised by plaintiff,
which we address first: whether the trial court properly excluded Dr. Ahmad from testifying as
an expert witness. “The purpose of witness lists is to avoid ‘trial by surprise.’” Grubor
Enterprises Inc v Kortidis, 201 Mich App 625, 628; 506 NW2d 614 (1993). “[T]he mere fact
that a witness list was not timely filed does not, in and of itself, justify the imposition of [barring
an expert witness or dismissing an action].” Dean v Tucker, 182 Mich App 27, 32; 451 NW2d
571 (1990). Conversely, the trial court’s failure to ensure that the record reflects the trial court’s
consideration of the circumstances of the case and the alternatives available does not, in and of
itself, constitute an abuse of its discretion, unless the record otherwise manifestly shows that

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such a sanction was appropriate. See id. at 33-34; see also Duray Dev, 288 Mich App at 165. A
nonexhaustive list of factors that should be considered includes:

       (1) whether the violation was willful or accidental; (2) the party’s history of
       refusing to comply with discovery requests (or refusal to disclose witnesses); (3)
       the prejudice to the defendant; (4) actual notice to the defendant of the witness
       and the length of time prior to trial that the defendant received such actual notice;
       (5) whether there exists a history of plaintiff’s engaging in deliberate delay; (6)
       the degree of compliance by the plaintiff with other provisions of the court’s
       order; (7) an attempt by the plaintiff to timely cure the defect[;] and (8) whether a
       lesser sanction would better serve the interests of justice. [Duray Dev, 288 Mich
       App at 165, quoting Dean, 182 Mich App at 32-33.]

“In exercising its discretion, the trial court should [also] determine whether the party can prove
the elements of its position based solely on the parties’ testimony and any other documentary
evidence.” Grubor Enterprises, 201 Mich App at 629.

        As an initial matter, the trial court’s stated reasoning for excluding Dr. Ahmad as an
expert witness is a single sentence that suggests that the trial court did not consider any
circumstance of the case other than plaintiff’s tardiness, although as noted, the trial court also did
not impose the most drastic sanction possible. There is no requirement that the trial court
pontificate ad nauseum. See MCR 2.517(A)(2). However, we find that the trial court’s
statements do not rise to the level of the “[b]rief, definite, and pertinent findings and
conclusions” required by the court rule. Consequently, the resolution of this issue turns on
whether the trial court’s decision was so clearly proper that no other option would have been
reasonable.

        It is clear from the record that the trial court did in fact consider more than just plaintiff’s
tardiness. The trial court permitted plaintiff the opportunity to show that in fact Dr. Ahmad had
been indirectly or impliedly included in the witness list, but there is no evidence in the record
that plaintiff was able to do so. Defendants point out that plaintiff missed numerous deadlines,
had in fact only filed his witness list because he was directly ordered to do so, and first disclosed
Dr. Ahmad as an expert only in response to defendants’ motion for summary disposition.
Plaintiff focuses on the fact that formalities notwithstanding, defendants had actually been aware
of Dr. Ahmad for some considerable period of time and even voluntarily gave up their own
efforts to depose him.

        We find no abuse of discretion in the trial court’s decision to permit plaintiff to call Dr.
Ahmad as a factual witness but not as an expert. Defendants were well aware that Dr. Ahmad
was plaintiff’s treating physician, and they had access to Dr. Ahmad’s records, so they could not
have been surprised by the content or relevancy of his factual testimony. We are not persuaded
by defendants’ argument that plaintiff willfully flouted deadlines, but the record amply supports
defendants’ observation that plaintiff had missed many deadlines and the trial court had been
generous in extending leeway to plaintiff. Mere untimely disclosure of Dr. Ahmad as an expert
would be an insufficient basis by itself to bar his testimony as an expert, but we find no abuse of
discretion in finding that disclosure to be egregiously late here, rather than a mere failure to
comply with a technicality, especially in light of plaintiff’s other tardiness. It was not

                                                  -6-
unreasonable for the trial court to exercise its discretion to impose the limited sanction of
precluding plaintiff from utilizing Dr. Ahmad as an expert, while permitting him to testify as a
fact witness, that “late in the game.” The trial court’s decision in this regard is not “outside the
principled range of outcomes.” Herald Co, 475 Mich at 472.

        We therefore need not consider defendants’ alternate asserted bases for affirming the trial
court’s decision.

                            V. NATURE OF PLAINTIFF’S CLAIM

        Plaintiff also argues on appeal that the trial court erred in concluding that his claim is a
“lost opportunity” claim. We agree.

       The gravamen of plaintiff’s claimed injury, as set forth in the complaint, is:

       ¶ 98: Due to the lack of medication, Mr. Rusha’s MS advanced prematurely and
       be [sic] began experiencing seizures and other MS symptoms including
       numbness, tingling, and left-sided weakness.

                                              * * *

       ¶ 109: To this day, Plaintiff continues to suffer neurological deficits as a result of
       the progression of his MS due to the failure of the Defendants to properly treat
       him.

                                              * * *

       ¶ 122: As a direct and proximate result of the acts of general negligence, medical
       negligence, gross negligence and/or wanton or reckless misconduct and/or
       reckless disregard for the safety of the Plaintiff, Defendants, either directly or
       through their agents, servants and/or employees caused Plaintiff’s seizures and
       MS to worsen and caused pain, suffering disfigurement [sic], loss of function and
       disability which otherwise would not have occurred. Such acts were a significant
       contributing factor in causing the damages complained of thereof [sic].

Consequently, the gravamen of plaintiff’s claim is that he directly suffered a concrete injury as a
consequence of defendants’ alleged improper care, and that injury was both symptoms of MS he
suffered during his incarceration because of non-treatment and accelerated degeneration of his
MS.

        We note that we are baffled by defendants’ conclusion that this is a “lost opportunity for
a better result” claim. Both here and in the trial court, defendants simply state it baldly. We are
further baffled by the trial court’s unexplained adoption of that conclusion with no stated
analysis or apparent consideration. In so doing, the trial court took one statement from plaintiff
out of context to justify its conclusion, even though that statement was clearly made by plaintiff
in response to and disputing defendants’ assertion that he was advancing a “lost opportunity”
claim. Courts, however, should look to the substance of a claim or transaction, not pure


                                                -7-
superficial details. See In re Traub Estate, 354 Mich 263, 278-279; 92 NW2d 480 (1958);
Wilcox v Moore, 354 Mich 499, 504; 93 NW2d 288 (1958).

        We emphasize that we express no opinion whatsoever as to the substantive merits of
plaintiff’s claim. Whether or not it can be proven, plaintiff has consistently alleged that he was
actually harmed by defendants’ alleged malpractice, not that he suffered an increased risk of
harm due to the alleged malpractice. This is precisely the critical distinction between the two
theories of medical malpractice. See Compton v Pass, 485 Mich 920, 921; 733 NW2d 664
(2009); Stone v Williamson, 482 Mich 144, 151-162 (TAYLOR, C.J.), 166-171 (CAVANAGH, J);
753 NW2d 106 (2008). The only way to arrive at defendants’ and the trial court’s interpretation
of plaintiff’s claims is to conclude that past pain and suffering and/or actual degeneration in a
person’s physical condition are not, themselves, cognizable injuries. Such a conclusion has no
basis in law. Whether or not the proofs will ultimately support it, plaintiff clearly,
unambiguously, and consistently articulated a traditional medical malpractice action asserting
that defendant’s alleged malpractice directly caused him an actual injury.

        Defendants argue in the alternative that plaintiff also cannot prevail under a traditional
medical malpractice theory. Under the circumstances, we decline to consider that argument at
this time. Rather, we conclude that the traditional medical malpractice argument is better
directed at the trial court, which has the discretion, should it wish to use it, to require or permit
the parties to conduct additional briefing or discovery in light of this Court’s resolution of the
two issues addressed above. We express no opinion as to the merits of defendants’ alternate
argument.

                                       VI. CONCLUSION

        The trial court’s ruling as to Dr. Ahmad is affirmed. However, the trial court’s finding
that this case is a “lost opportunity” case was erroneous, and therefore the trial court’s grant of
summary disposition is vacated. We remand this matter to the trial court for further proceedings
consistent with this opinion as the trial court deems necessary or proper. We do not retain
jurisdiction. No costs, neither party having prevailed in full.

                                                              /s/ Douglas B. Shapiro
                                                              /s/ Joel P. Hoekstra
                                                              /s/ Amy Ronayne Krause




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