                             STATE OF MICHIGAN

                               COURT OF APPEALS



RAIDA ADAS,                                                          UNPUBLISHED
                                                                     November 17, 2015
                 Plaintiff-Appellant,

v                                                                    No. 318397
                                                                     Oakland Circuit Court
WILLIAM BEAUMONT HOSPITAL,                                           LC No. 2011-116424-NH
BEAUMONT HOSPITALS, and MARIANNE
FRANCO, M.D.,

                 Defendants,

and

ROYAL OAK SURGICAL ASSOCIATES, P.C.,
and PETER CZAKO, M.D.,

                 Defendants-Appellees.


Before: METER, P.J., and WILDER and RONAYNE KRAUS, JJ.

PER CURIAM.

        Plaintiff, Raida Adas, appeals as of right the trial court’s May 29, 2013 order entering a
judgment of no cause for action in favor of defendants Royal Oak Surgical Associates, P.C., and
Peter Czako, M.D., in this medical malpractice action.1 Plaintiff also appeals numerous other
orders entered by the trial court in this matter. We affirm in part, reverse in part, and remand for
modification of the order taxing costs consistent with this opinion.

                                  I. FACTS AND PROCEEDINGS

        This case arises from a thyroidectomy procedure performed by Dr. Czako on plaintiff on
July 28, 2008. It is undisputed that the “Acknowledgment of Informed Consent” signed by
plaintiff before the surgery indicated that the procedure to be performed was a “Left Thyroid



1
    The other defendants were dismissed in the trial court.


                                                  -1-
Lobectomy/Possible Total.” It is also undisputed that Dr. Czako removed plaintiff’s entire
thyroid during the procedure, beginning with the right side.

       On January 24, 2011, plaintiff filed this medical malpractice action alleging, inter alia,
that Dr. Czako negligently performed a total thyroidectomy and failed to obtain plaintiff’s
consent for a total thyroidectomy. Plaintiff further alleged that she suffers from hypothyroidism,
hypoparathyroidism, and hypocalcemia, which she attributed to the total thyroidectomy and the
damage to her parathyroid glands.

        On June 22, 2012, before the first trial in this matter, plaintiff filed a motion to compel
answers to her interrogatories, expert interrogatories, and requests for production of documents
that had previously been served on defendants. She also requested that discovery be reopened
and the scheduled trial be adjourned. Before the hearing on the motion was held, defendants
filed responses to the discovery requests. Plaintiff, however, believed the responses were
“nonresponsive, incomplete and willfully evasive” and, on July 18, 2012, filed a motion to
compel more specific answers, reopen discovery, and adjourn trial. Defendants responded that
the reason for the delay was plaintiff’s failure to accommodate their requests for discovery in
electronic format and they denied that the responses were nonresponsive, incomplete, and
willfully evasive. They argued that plaintiff had ample time to complete discovery, but failed to
depose defendants’ experts or make her own expert available for deposition. On July 25, 2012, a
hearing was held on plaintiff’s motion. The trial court summarized the parties’ arguments and
stated that the case was, at that point, one and a half year’s old, stated that the parties had “not
worked together very professionally,” and denied the motion.2

        The first trial began on October 8, 2012. Plaintiff testified that after test results showed
that a nodule on the left side of her thyroid was suspicious for capillary carcinoma, she met with
Dr. Czako. Dr. Czako informed plaintiff that it would be necessary to remove the left side. He
also informed her that a total thyroidectomy may be needed, but he did not inform her that there
would be permanent injury. Plaintiff signed the “Acknowledgment of Informed Consent” before
the surgery. Just before the surgery, plaintiff asked to speak with Dr. Czako and she confirmed
with him that he was going to first remove the left side, have a “frozen section”3 performed, and
if it was cancerous, then also remove the right side. When plaintiff woke up from the surgery,
she discovered that a total thyroidectomy had been performed, although there was no cancer.
Plaintiff now suffers from hypoparathyroidism and hypocalcemia.

       On cross-examination, plaintiff admitted that when she met with Dr. Czako she was
aware that test results had shown that she had a small nodule on the right side of her thyroid, in


2
 Plaintiff filed an application for leave to appeal this order with this Court, which was denied.
Adas v William Beaumont Hosp, unpublished order of the Court of Appeals, entered May 24,
2013 (Docket No. 311856).
3
  Dr. Czako subsequently explained that a frozen section is a technique whereby a specimen is
given to the pathologist during the operation and the pathologist freezes the cells and views them
under a microscope.


                                                -2-
addition to the larger nodule on the left side. Plaintiff testified that Dr. Czako that he would
remove the whole thyroid only if there was cancer. She recalled Dr. Czako telling her that the
chance of harm to her parathyroids was slim. He told her that he was going to “tickle” the
parathyroid gland and this could cause the parathyroid hormone to be low for a short period of
time. Plaintiff testified that Dr. Czako told her that all of the side effects would be temporary.
When asked if Dr. Czako ever said that there could be permanent injury, plaintiff testified that he
said he was an expert and it was a “very slim chance.” That is why plaintiff trusted him. When
asked if Dr. Czako told her that the risk of permanent injury is estimated at one percent, plaintiff
stated “It’s very slim.” She did not recall Dr. Czako stated that permanent injury could require
life-long calcium or vitamin D supplementation.

        Dr. Czako testified at the first trial that he had recommended plaintiff undergo a total
thyroidectomy because of the enlarging nodule with suspicious calcifications and the fact that a
nodule had developed on the other side. He testified that the indication of “possible total” on the
“Acknowledgment of Informed Consent” meant that “if, in the operating room, a judgment or
decision is made to proceed with a total thyroidectomy, [it] is possible that may be occurring in
the conduct of the operation.” It did not mean that the left side would be removed first. The
indication of “left” merely identified the location of the dominant nodule. Dr. Czako explained
that he removed the right side first because, generally, an operation begins with the resident on
the right side of the table and Dr. Czako on the left side. This allows Dr. Czako to evaluate the
right side and make a decision. If he sees abnormalities, he will proceed by removing the right
thyroid lobe and then the left thyroid lobe. In this case, he examined the right side and believed
it was irregular and there was a firm nodule, which was concerning given the suspicious finding
on the left lobe. He did not consider doing a frozen section because prior test results indicated
that there was a 90 percent chance that the nodule was malignant. He testified that he uses a
frozen section if he believes it will change the conduct of the operation.

         Plaintiff’s expert, Dr. Steven Swartz, testified that the small, three millimeter nodule on
the right side of plaintiff’s thyroid was insignificant if there was no cancer anywhere else in the
thyroid. Dr. Swartz would have advised plaintiff that she needed a left thyroid lobectomy with a
frozen section to determine whether the suspicious nodule was cancerous and, if it was, she
would need a total thyroidectomy. The indication on the “Acknowledgment of Informed
Consent” that the procedure was “Left Thyroid Lobectomy/Possible Total” means that the doctor
would “take out half of the thyroid gland and, presumably, have it looked at by the pathologist to
determine whether or not the rest of the thyroid gland needs to come out if cancer is present.” If
plaintiff had agreed to a total thyroidectomy, the consent form would have indicated “total
thyroidectomy” and “potentially, even total thyroidectomy and no dissection.” By indicating that
the procedure was “Left Thyroid Lobectomy/Possible Total” plaintiff consented to removal of
the left side and sending it to the pathologist for them to perform a frozen section and determine
whether there appeared to be cancer.

       Dr. Swartz admitted that a total thyroidectomy is one acceptable option when a fine
needle aspiration, as was performed on plaintiff, is suspicious for cancer. He testified that it is an
acceptable practice as long as it is explained to the patient that the doctor could remove half and
check it, or the doctor could remove the whole thing, but there may be complications. Dr.
Swartz agreed that a surgeon may make the decision regarding how much of the thyroid to


                                                 -3-
remove after the incision is made, but the most important piece of information that the surgeon
would consider is the result of the frozen section. The problem with frozen sections is that
sometimes thyroid cancer cells look like normal thyroid cells. However, in this case, because the
thyroid was not cancerous, it would not have looked like cancer.

        On the second day of trial, defendants moved for directed verdict. Plaintiff’s counsel
clarified that plaintiff was alleging improper surgical care based on Dr. Czako’s decision to
remove the right side first, failure to perform a frozen section, and damaging of the parathyroids,
in addition to her claim of lack of informed consent. The trial court denied the motion for
directed verdict regarding improper surgical care. With regard to the issue of informed consent,
defendants argued that plaintiff acknowledged that she gave permission to do a total
thyroidectomy and she signed a document indicating that no additional promises were made.
Plaintiff responded that the total thyroidectomy was conditioned on a finding of cancer. The trial
court took the issue under advisement. After a recess for lunch, the trial court ruled on
defendants’ motion for directed verdict on the issue of lack of informed consent. The trial court
stated:

              The testimony is undisputed that plaintiff signed an informed consent
       allowing Dr. Czako to remove the thyroid. It is not, as plaintiff says, based upon
       a condition there be no cancer. No instances -- on two instances the Court
       requested counsel to identify the conditions upon which the thyroidectomy could
       be based and none were recited. On the other hand, the evidence is unrebutted the
       defendant Doctor, that his licensing to which he agreed was -- was no -- that he
       agreed to no other promise was given to a patient than that which was stated.
       Here that included a possible thyroidectomy and that is what occurred.

               The facts of this case are regrettable, unfortunate, and sad, but from all the
       Court has heard the Doctor did no more than or less than that which was required.
       Plaintiff, the Court finds, was informed of the risk of the procedure. Plaintiff was
       advised of the risks of temporary or permanent injury to the thyroids. Plaintiff
       chose to undergo the thyroidectomy procedure and knowledge of those risks and
       complications were -- were told to her.

              The Court finds that plaintiff cannot establish its claim of malpractice as a
       matter of law, and therefore dismisses plaintiff’s case.

The trial court then indicated that it would dismiss the jury.

        Defendants subsequently presented a proposed order indicating that defendants’ motion
for directed verdict had been granted and entering judgment of no cause for action. Plaintiff
objected to the proposed order, arguing that the trial court had denied the motion.

        On November 21, 2012, plaintiff filed a motion for entry of an order compelling payment
of expert witness fees. Plaintiff argued that defendants had agreed to depose Dr. Swartz at his
office in Richmond, Virginia, but subsequently requested that the deposition be taken at a




                                                 -4-
videoconference center instead. Plaintiff argued that defendants should be required to pay for
Dr. Swartz’s travel time to and from the videoconference location under MCR 2.302(B)(4)(c)(i).
The trial court denied plaintiff’s motion.

        On November 29, 2012, the trial court entered an order granting in part and denying in
part defendant’s motion for directed verdict. The order indicated that defendants’ motion for
directed verdict regarding plaintiff’s claim of negligence and breach of the standard of care in
performing the surgery was denied, but the remainder of defendants’ motion for directed verdict
was granted.

         On December 17, 2012, defendants filed a motion for reconsideration of the November
29, 2012 order. Defendants argued that the November 29, 2012 order did not accurately reflect
the trial court’s decision dismissing the entire case.

        On December 18, 2012, plaintiff also filed a motion for reconsideration of the November
29, 2012 order. Plaintiff argued that the trial court’s decision to grant defendants’ motion for
directed verdict on plaintiff’s claim of lack of informed consent constituted palpable error. She
also argued that the trial court erred in dismissing the jury when plaintiff’s claim of negligence
and breach of the standard of care in the performance of the surgery was still pending.

        On January 4, 2013, the trial court entered an order granting defendants’ motion for
reconsideration of the November 29, 2012 order. The trial court explained that, at the hearing on
defendants’ motion for directed verdict, the trial court had discussed the issue of liability, but
failed to address the issue of proximate cause. It ruled that it should have granted defendants’
motion regarding proximate cause. The trial court, therefore, amended the November 29, 2012
order to reflect that defendants’ motion for directed verdict regarding causation was granted nunc
pro tunc.

        On February 11, 2013, the trial court entered an opinion and order granting plaintiff’s
motion for reconsideration of the January 4, 2013 order.4 The trial court concluded that
defendants’ motion for directed verdict “should have been denied because questions of fact
existed for the jury in light of Plaintiff’s expert’s testimony and the testimony of plaintiff and Dr.
[sic].” The trial court set the matter for trial.

        On February 13, 2012, defendants filed a motion in limine to limit the evidence at the
second trial to plaintiff’s claim of negligence in performing a total thyroidectomy. At a hearing
on February 20, 2013, plaintiff argued that the February 11, 2013 order reinstated the lack of
informed consent claim. The trial court explained that it had granted directed verdict on both the
question of negligence and informed consent, but then reversed its position and intended to
reinstate the negligence claim. However, the trial court did not believe that the question of
informed consent should have gone to the jury “where it was so clear here that she signed a--a



4
  Plaintiff actually filed a motion for reconsideration of the November 29, 2012 order, not the
January 4, 2013 order.


                                                 -5-
patient consent form, an informed consent for indicating that she agreed to a total
thyroidectomy.” The trial court, therefore, ruled that the matter would go to trial on the question
of negligence only. On February 20, 2013, the trial court entered an order granting defendants’
motion in limine and limiting the evidence at trial to plaintiff’s claim of negligence and
proximate causation. The trial court ruled that plaintiff’s claim of lack of informed consent
remained dismissed. On February 20, 2013, the trial court entered an order granting defendants’
motion in limine and limiting the evidence at trial to plaintiff’s claim of negligence and
proximate causation. The order indicated that the claim of lack of informed consent remained
dismissed. On February 20, 2013, the trial court also entered an order granting defendants’
motion to adjourn trial and stating that trial on plaintiff’s claim of negligence and proximate
causation was set for April 29, 2013.

       At a hearing on March 20, 2013, the trial court reiterated its rulings:

               [T]his Court’s intent at the time of the directed verdict, it--it is this Court’s
       opinion that there was sufficient evidence that existed on plaintiff’s claim of
       medical malpractice, including the issue of proximate cause, which this Court
       believes was more a question of fact for the jury, not a question of law for the
       Court, so that the jury must decide plaintiff’s claim as to negligence; that
       including duty, breach of duty, proximate cause and damages. However,
       plaintiff’s theory regarding informed consent of lack thereof, was and still
       remains dismissed.

        The second trial began on April 29, 2013. On the first day of the trial, plaintiff moved to
preclude the use of the second de bene esse video deposition of defendants’ expert, Dr. Daniel
Borreson. Plaintiff argued that Dr. Borreson’s deposition was taken before the first trial and
there was no authority for taking a second deposition. Plaintiff argued that Dr. Borreson was
able to review his first deposition and he did not have plaintiff’s complete records from her
current healthcare provider. Plaintiff’s counsel claimed that defense counsel did not allow her to
print certain exhibits during the deposition. Defendants’ responded that the deposition was
properly noticed, the case was framed differently for the second trial, and new records were
provided to Dr. Borreson. The trial court denied the motion, finding that it was “a newly poised
case in the absence of informed consent.” The trial court further found that plaintiff failed to
show prejudice regarding the admission of exhibits at the deposition.

        Plaintiff and Dr. Czako testified at the second trial. The direct examination deposition
testimony of Dr. Swartz was read to the jury. After the direct examination of Dr. Swartz was
read, defense counsel indicated that he would waive his cross-examination and save it for his
case. When the reader was not present to read the cross-examination, the trial court ordered that
the cross-examination portion of the transcript be admitted in exhibit form and given to the jury
in lieu of the reading. Plaintiff objected to the jury only being given the cross-examination
testimony. The trial court ruled that it would admit the the cross-examination and redirect
examination portion of the transcript, but not the direct examination because it was already on
the record. The video deposition of defendants’ expert, Dr. Borreson, was played for the jury.




                                                 -6-
       On May 1, 2013, the jury found that defendant was not professionally negligent. On May
29, 2013, the trial court entered a judgment of no cause for action against defendants. The order
allowed defendants to seek taxable costs pursuant to the Michigan Court Rules.

        On June 19, 2013, plaintiff filed a motion for a new trial in which she argued that the trial
court erred in allowing defendants to take a second video deposition of Dr. Borreson and use that
deposition at the second trial. She also argued that the trial court erred in failing to allow the
transcript of the cross-examination of plaintiff’s expert to be read at the second trial.

        In their amended motion for taxation of costs pursuant to MCR 2.625, defendants sought
“costs and expenses associated with Dr. Borreson’s case review, time required to prepare for his
testimony as an expert witness, and trial testimony” in the amount of $9,835. They also sought a
deposition transcript fee of 965.45 and $150 for trial of the action. They requested total costs
associated with Dr. Borreson’s case review, preparation, and trial testimony in the amount of
$10,800.45. On July 19, 2013, the trial court entered an opinion and order granting in part
defendants’ motion for taxation of costs. The trial court allowed defendants to recover the
deposition transcript fee of $965.45, a trial fee of $150, and reasonable trial preparation and
video deposition fee of $7,675. The trial court reduced the amount sought by defendants by 5.4
hours, finding that “the time spent meeting with counsel and in preparation of the second trial
deposition unreasonable and otherwise not recoverable as part of an expert witness fee.” Thus,
the trial court ruled that defendants were entitled to taxable costs of $8,790.45. The trial court
denied plaintiff’s motion for reconsideration of this order.

        A hearing was held on plaintiff’s motion for a new trial on September 11, 2013. The trial
court denied plaintiff’s motion. Regarding the second deposition of Dr. Borreson, the trial court
found that defendants were permitted under the court rules to depose their expert witness and
offer the deposition into evidence at trial, plaintiff’s objection was untimely, and plaintiff failed
to provide any legal authority that a witness cannot be redeposed. On September 12, 2013, the
trial court entered an order denying plaintiff’s motion for a new trial and granting defendants’
motion for entry of a final order closing the case.

                    II. DISMISSAL OF THE JURY AT THE FIRST TRIAL

        Plaintiff first contends that the trial court erred in dismissing the jury in the first trial
when it had denied defendants’ motion for directed verdict regarding plaintiff’s claim of
negligence and breach of the standard of care in performing the surgery. We conclude that this
issue is moot.

        On the second day of the first trial, the trial court heard arguments on defendants’ motion
for directed verdict. The trial court denied the motion as it related to plaintiff’s claim of
improper surgical care and took the issue of informed consent under advisement. After a recess,
the trial court ruled that plaintiff failed to establish her claim and granted defendants’ motion.
The trial court then stated that it would dismiss the jury. However, given that the trial court had
previously denied the motion for directed verdict regarding plaintiff’s claim of improper surgical
care and gave no indication that it was changing its initial ruling on that issue, that issue
remained for trial, and the trial court erred in dismissing the jury. While it was error to dismiss
the jury, the trial court thereafter held a second trial on plaintiff’s claim of negligence in the

                                                -7-
performance of the surgery. Given that a second trial was held, this issue is moot. See Attorney
General v Pub Serv Comm, 269 Mich App 473, 485; 713 NW2d 290 (2005) (“An issue is moot if
an event has occurred that renders it impossible for the court to grant relief. We will review a
moot issue only if it is publicly significant and is likely to recur, yet is likely to evade judicial
review.”). In this case, the trial court’s decision to hold a second trial has rendered it impossible
to grant relief on this issue and the circumstances do not warrant review.

     III. DISMISSAL OF PLAINTIFF’S CLAIM OF LACK OF INFORMED CONSENT

        Plaintiff next contends that the trial court erred in granting defendants’ motion for
directed verdict and dismissing plaintiff’s claim of lack of informed consent at the first trial. We
disagree.

               We review directed verdicts de novo. When evaluating a motion for
       directed verdict, the court must consider the evidence in the light most favorable
       to the nonmoving party, making all reasonable inferences in the nonmoving
       party’s favor. A directed verdict is appropriate where reasonable minds could not
       differ on a factual question. [Chouman v Home Owners Ins Co, 293 Mich App
       434, 441; 810 NW2d 88 (2011) (citation and quotation marks omitted).]

        “In a medical malpractice case, the plaintiff must establish: (1) the standard of care, (2)
breach of that standard of care, (3) injury, and (4) proximate causation between the alleged
breach and the injury.” Pennington v Longabaugh, 271 Mich App 101, 104; 719 NW2d 616
(2006). The plaintiff must present expert testimony “to establish a causal link between the
alleged negligence and the alleged injury.” Id. “The doctrine of informed consent requires a
physician to warn a patient of the risks and consequences of a medical procedure.” Wlosinski v
Cohn, 269 Mich App 303, 308; 713 NW2d 16 (2005). The Michigan Supreme Court has stated:

               Claims of negligence based on the failure of a physician or surgeon to
       adequately obtain informed consent before a procedure or to otherwise fail to
       instruct or advise a patient come within the general rule regarding the need for
       expert testimony. Consequently, if the necessity of giving the particular
       information is within the general knowledge of laymen, expert testimony is not
       required. However, if laymen would not necessarily know what information a
       physician should provide the patient, expert testimony is required.” [Paul v Lee,
       455 Mich 204, 212; 568 NW2d 510 (1997), overruled on other grounds by Smith
       v Globe Life Ins Co, 460 Mich 446, 455-456 n 2 (1999) (citation omitted).]

       In the first trial in this case, plaintiff presented the expert testimony of Dr. Swartz
regarding the issue of informed consent. The nature and extent of information that a physician
should give to a patient undergoing a total thyroidectomy comes within the general rule requiring
expert testimony. See Paul, 455 Mich at 213 (“The nature and extent of information that a
physician should give to a vasectomy patient before performing that procedure clearly comes
within the general rule rather than the exception. The risks and necessary postoperative follow-
up attendant to a vasectomy is not within the general knowledge of laymen. Nor do laymen
generally know what information the doctor should give or how the information should be
explained.”). However, the question here is not the nature and extent of information that should

                                                -8-
have been given, but rather the scope of the consent and whether the procedure performed by Dr.
Czako was within the consent given by plaintiff. This question is resolved by the language of the
“Acknowledgment of Informed Consent.” The “Acknowledgment of Informed Consent”
provided that the procedure to be performed was a “Left Thyroid Lobectomy/Possible Total.”
While plaintiff testified that Dr. Czako was supposed to remove the right side first, have a frozen
section performed, and only remove the right side if cancer was found, the “Acknowledgment of
Informed Consent” provided no such conditions or qualifications. Dr. Czako determined that a
total thyroidectomy was necessary and proceeded within the scope of the consent provided by
plaintiff. While reasonable minds could have differed on the question whether Dr. Czako
properly performed a total thyroidectomy (plaintiff’s claim of improper surgical care), there was
no question of fact that plaintiff consented to a total thyroidectomy.

        Nonetheless, even considering plaintiff’s expert testimony, we conclude that such
testimony did not create a question of fact on the issue of informed consent. Dr. Swartz’s
testimony was not definitive and it conflicted with Dr. Czako’s testimony. Dr. Swartz testified
that “Left Thyroid Lobectomy/Possible Total” means that the doctor would “take out half of the
thyroid gland and, presumably, have it looked at by the pathologist to determine whether or not
the rest of the thyroid gland needs to come out if cancer is present.” He testified that if plaintiff
had agreed to a total thyroidectomy, the consent form would have indicated “total
thyroidectomy” and potentially have also indicated “no dissection.” However, Dr. Swartz only
stated that this language meant presumably the pathologist would look at it to determine if there
was cancer; he did not say that a frozen section was the only way that such a determination could
be made. He also said that if plaintiff had agreed to a total thyroidectomy the form potentially
have indicated “no dissection”; he did not say that the form would have necessarily included
such language. In this case, the “Acknowledgment of Informed Consent” did not indicate that a
frozen section would or would not be performed. And, the “Acknowledgment of Informed
Consent” did indicate that a total thyroidectomy was possible. While Dr. Swartz stated that the
frozen section would be the most important piece of information that a surgeon would consider,
he did not say that it was the only information.

        Contrarily, Dr. Czako testified that the indication of “possible total” on the
“Acknowledgment of Informed Consent” meant that “if, in the operating room, a judgment or
decision is made to proceed with a total thyroidectomy, [it] is possible that may be occurring in
the conduct of the operation.” It did not mean that the left side would be removed first. The
indication of “left” merely identified the location of the dominant nodule. After examining the
right side, Dr. Czako believed it was necessary to remove the entire thyroid and did not believe a
frozen section would change his opinion.5 Given the language of the “Acknowledgment of
Informed Consent,” we conclude that there was no question of fact that plaintiff consented to a
total thyroidectomy.




5
 Again, whether this determination was reasonable goes to the issue of whether the procedure
was negligently performed, which was decided by the jury at the second trial.


                                                -9-
        Plaintiff also claims that the trial court erred in finding that she was informed of the risks
of the procedure when she clearly testified that defendants failed to inform her of the risk of
permanent damage to the parathyroids. Plaintiff makes this argument in one sentence with of her
brief on appeal, without citation to the record or authority. Accordingly, plaintiff has abandoned
this issue by failing to properly brief it on appeal. See Yee v Shiawasee Co Bd of Comm’rs, 251
Mich App 379, 406; 651 NW2d 756 (2002). Nonetheless, we conclude that there was no
question of fact that plaintiff was informed of the risk of permanent injury to her parathyroids.
Although plaintiff maintained that Dr. Czako told her that any injury would be temporary, she
also admitted that he informed her that there was a slim change of permanent injury.

        Because plaintiff failed to establish a question of fact regarding breach of the standard of
care, the trial court did not err in granting a directed verdict in favor of defendants on plaintiff’s
claim of lack of informed consent.6

               IV. ORDER GRANTING DEFENDANTS’ MOTION IN LIMINE

        Plaintiff contends that the trial court erred in granting defendants’ motion in limine to
limit the evidence at the second trial to plaintiff’s claim of negligence and breach of the standard
of care in performing the surgery when that claim was dismissed by the January 4, 2013 order.
Plaintiff also argues that it was error for the trial court to exclude evidence at the second trial of
her claim of lack of informed consent because that claim remained pending. We disagree.

         Plaintiff misconstrues the trial court’s rulings. On February 20, 2013, the trial court
granted defendants’ motion in limine and limited the evidence at trial to plaintiff’s claim of
negligence and proximate causation, specifically stating that plaintiff’s claim of lack of informed
consent remained dismissed. Plaintiff is correct that, on January 4, 2013, the trial court reversed
its earlier ruling and granted defendants’ motion for directed verdict on causation. However, on
February 11, 2013, the trial court granted plaintiff’s motion for reconsideration of the January 4,
2013 order and concluded that defendants’ motion for a directed verdict should have been
denied. As noted above, plaintiff actually filed a motion for reconsideration of the November 29,
2012 order, but the February 11, 2013 order clearly reversed the January 4, 2013 order. Given
that the November 29, 2012 order denied defendants’ motion for directed verdict regarding the
claim of negligence in the performance of the surgery, the January 4, 2013 and February 11,
2013 orders necessarily applied to that claim. Moreover, although the February 11, 2013 order
summarized plaintiff’s arguments regarding the issue of lack of informed consent, it was not
necessarily ruling on those claims. However, to the extent that it was unclear whether the trial
court’s rulings on January 4, 2013, and February 11, 2013, applied only to the negligent
performance claim or also the lack of informed consent claim, the trial court clarified its rulings
at the hearing on March 20, 2013:


6
  Within this argument, plaintiff also argues that the trial court erred in dismissing defendant
Royal Oak Surgical Associates, P.C. While transcript of the hearing does show that the trial
court dismissed this defendant, there was no order entered dismissing this defendant and the
judgment entered on May 29, 2013 was entered in favor of Dr. Czako and Royal Oak Surgical
Associates, P.C.


                                                -10-
               [T]his Court’s intent at the time of the directed verdict, it--it is this Court’s
       opinion that there was sufficient evidence that existed on plaintiff’s claim of
       medical malpractice, including the issue of proximate cause, which this Court
       believes was more a question of fact for the jury, not a question of law for the
       Court, so that the jury must decide plaintiff’s claim as to negligence; that
       including duty, breach of duty, proximate cause and damages. However,
       plaintiff’s theory regarding informed consent of lack thereof, was and still
       remains dismissed.

Accordingly, plaintiff is incorrect that the claim of lack of informed consent remained pending.
Thus, the trial court did not err in excluding evidence of her claim of lack of informed consent at
the second trial.

        Plaintiff further argues that the February 20, 2011 order was improperly entered because
it was not provided to plaintiff for approval before being submitted to the trial court in violation
of MCR 2.602(B)(2). We disagree.

        Plaintiff failed to raise this issue below, therefore, it is unpreserved. See Polkton Charter
Twp v Pellegrom, 265 Mich App 88, 95; 693 NW2d 170 (2005). We review unpreserved issues
for plain error affecting substantial rights. Local Emergency Fin Assistance Loan Bd v
Blackwell, 299 Mich App 727, 738; 832 NW2d 401 (2013). MCR 2.602(B)(2) provides: “The
court shall sign the judgment or order when its form is approved by all the parties and if, in the
court’s determination, it comports with the court’s decision.” However, this is not the only
method by which an order may be entered. MCR 2.602(B) provides that “[a]n order or judgment
shall be entered by one of the following methods[.]” MCR 2.602(B)(1) provides that “The court
may sign the judgment or order at the time it grants the relief provided by the judgment or
order.” At the hearing on February 20, 2013, the trial court ruled on defendants’ motion in
limine and entered an order consistent with its rulings. Accordingly, there was no plain error
affecting plaintiff’s substantial rights.

       V. ORDER GRANTING DEFENDANTS’ MOTION FOR RECONSIDERATION

       Plaintiff argues that the trial court erred in granting defendants’ motion for
reconsideration because the issue of causation was addressed at the hearing on defendants’
motion for directed verdict. We conclude that this issue is moot.

        “We review for an abuse of discretion a trial court’s decision on a motion for
reconsideration. An abuse of discretion occurs if the trial court’s decision falls outside the range
of principled outcomes.” Macomb Co Dep’t of Human Servs v Anderson, 304 Mich App 750,
754; 849 NW2d 408 (2014) (citations omitted). On January 4, 2013, the trial court entered an
order granting defendants’ motion for reconsideration of the November 29, 2012 order, which
had denied defendants’ motion for directed verdict on the claim of negligence in performing the
surgery. The trial court explained in the January 4, 2013 order that, at the hearing on defendants’
motion for directed verdict, the trial court had discussed the issue of liability, but failed to
discuss proximate cause. It ruled that it should have granted defendants’ motion regarding
proximate cause. The trial court, therefore, amended the November 29, 2012 order to reflect that
defendants’ motion for directed verdict regarding causation was granted nunc pro tunc. A

                                                 -11-
review of the hearing on defendants’ motion for directed verdict reveals that, as the trial court
found, causation was discussed, but it was not explicitly ruled on. Nonetheless, to the extent the
trial court erred in granting the motion on this basis, the January 4, 2013 order was reversed on
February 11, 2013, when the trial court entered an opinion and order granting plaintiff’s motion
for reconsideration of the January 4, 2013 order and ruled that defendants’ motion for directed
verdict should have been denied. Because plaintiff’s claim of negligent performance was
reinstated and a trial was held on this claim, this issue is moot. See Attorney General, 269 Mich
App at 485.

                                         VI. CAUSATION

        Plaintiff also contends that the trial court erred in finding that no questions of fact existed
regarding causation. For the same reasons discussed above in Issue V, this issue is moot because
plaintiff’s claim of negligent performance was reinstated and presented to the jury at the second
trial. See Attorney General, 269 Mich App at 485.

         VII. ORDER GRANTING DEFENDANTS’ MOTION TO ADJOURN TRIAL

        Plaintiff argues that the trial court erred in entering the order adjourning trial stating that
the evidence at the second trial was limited to plaintiff’s claim of negligence and proximate
causation when that claim had previously been dismissed. The trial court made the same rulings
in the order granting defendants’ motion to adjourn trial as in the order granting defendants’ the
motion in limine. For the reasons discussed in Issue IV above regarding the order granting
defendants’ motion in limine, there was no error.

                     VIII. SECOND DE BENE ESSE VIDEO DEPOSITION

       Plaintiff contends that the trial court erred in allowing defendants to take a second de
bene esse video deposition of their expert, Dr. Borreson, for the second trial. We disagree.

        “We review a trial court’s decision to grant or deny discovery for abuse of discretion.”
Henderson v Dep’t of Treasury, 307 Mich App 1, 8; 858 NW2d 733 (2014) (citation and
quotation marks omitted). MCR 2.308, regarding the use of depositions in court proceedings,
provides in part: “None of the foregoing errors or irregularities, even when not waived, or any
others, preclude or restrict the use of the deposition, except insofar as the court finds that the
errors substantially destroy the value of the deposition as evidence or render its use unfair or
prejudicial.” MCR 2.308(5) (emphasis added).

        Plaintiff claims that there is no authority for taking a second deposition. However, the
trial court concluded that the case was “newly poised” at the second trial and that plaintiff failed
to show any prejudice. Given that the lack of informed consent issue had been dismissed and
plaintiff failed to articulate any prejudice she suffered by allowing the second deposition, we
cannot say that this was an abuse of discretion. Moreover, given the lack of prejudice, there was
no basis to preclude use of the deposition. See MCR 2.308(5).




                                                 -12-
                  IX. SUFFICIENT EVIDENCE IN SUPPORT OF DEFENSE

        Plaintiff contends that defendants failed to produce sufficient evidence to support a valid
defense when the second deposition of Dr. Borreson was admitted in error. Plaintiff only argues
that there was insufficient evidence without Dr. Borreson’s testimony. However, as discussed
above in Issue VIII, plaintiff fails to establish any error in the use of the second deposition.
Therefore, this argument also fails.

     X. TRIAL COURT’S REFUSAL TO ALLOW THE COMPLETE TRANSCRIPT OF
         PLAINTIFF’S EXPERT’S TESTIMONY TO BE READ INTO EVIDENCE

       Plaintiff argues that the trial court erred in ruling that the complete transcript of plaintiff’s
expert witness would not be allowed at the second trial. We disagree.

        Plaintiff did not object at trial to the trial court’s refusal to read the complete transcript;7
therefore, this issue is unpreserved. See Polkton Charter Twp, 265 Mich App at 95. We review
unpreserved issues for plain error affecting substantial rights. Blackwell, 299 Mich App at 738.
Plaintiff, however, did raise this issue in her motion for a new trial. We review the trial court’s
ruling on a motion for a new trial for an abuse of discretion. Rental Props Owners Ass’n of Kent
Co v Kent Co Treasurer, 308 Mich App 498, 531; 866 NW2d 817 (2014).

        Plaintiff fails to explain how the failure to read the cross-examination of her own expert
witness prejudiced her. As defendants argue, it benefited plaintiff to not subject her expert to
cross-examination, which left his direct examination testimony unchallenged. Nonetheless, the
trial court provided the transcript of the cross-examination to the jury in exhibit form. Thus,
plaintiff fails to establish plain error affecting her substantial rights and the trial court did not
abuse its discretion in denying the motion for a new trial.

XI. ORDER DENYING PLAINTIFF’S MOTION TO COMPEL MORE SPECIFIC ANSWERS

      Plaintiff contends that the trial court erred in denying her motion to compel more specific
answers to plaintiff’s interrogatories, expert interrogatories, and request for production of
documents based on its finding that her motion was untimely. We disagree.

        We review the trial court’s discovery rulings for an abuse of discretion. Henderson, 307
Mich App at 8. At the July 25, 2012 hearing, the trial court explained that plaintiff filed a
motion to compel defendant to more fully and completely answer the discovery requests served
on April 11, 2012. A hearing was scheduled for July 18, 2012, but before that date defendants
responded and the hearing was canceled. After reviewing defendants’ answers, however,
plaintiff argued that the answers were evasive and not responsive and requested discovery be
reopened and trial adjourned. Defendants responded that they answered as completely as


7
  Plaintiff’s counsel only objected to the jury being given the cross-examination portion of the
transcript, but not the direct examination portion, and argued that the jury should be given the
entire transcript.


                                                 -13-
possible and that it was plaintiff who was dilatory. The trial court stated that the case was, at that
point, one and a half year’s old, the parties had “not worked together very professionally,” and
denied the motion. Contrary to plaintiff’s argument, the trial court did not rule that the motion to
compel was untimely. Rather, the trial court denied these requests based on the age of the case
and its finding that both parties were not working together professionally. This ruling did not
constitute an abuse of discretion.



XII. ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR TAXATION OF COSTS

        Plaintiff contends that the trial court erred in granting in part defendants’ motion for
taxation of costs. Plaintiff argues that the trial court erred in (1) reducing the expert hours by
only 5.4 hours rather than 5.9 hours; (2) using $9,835 as the total amount of the first and second
trial depositions rather than $7,135; (3) granting the deposition preparation time of 1.25 hours for
the continuation of the first video deposition when it was the expert who stopped the deposition;
(4) granting the transcript cost of $965.45; and (5) granting any expenses incurred for the second
video deposition. We agree in part.

      “We review for an abuse of discretion the trial court’s ruling on a motion to tax costs
under MCR 2.625. However, whether a particular expense is taxable as a cost is a question of
law. We review questions of law de novo.” Guerrero v Smith, 280 Mich App 647, 670; 761
NW2d 723 (2008) (citations omitted).

       First, we agree with plaintiff that the trial court erred in reducing the expert hours by only
5.4 hours. The trial court stated that it reduced the hours by 5.4 “finding the time spent meeting
with counsel and in preparation of the second trial deposition unreasonable and otherwise not
recoverable.” However, according to the documents submitted by defendants in support of their
motion, the time spent meeting with counsel and in preparation for the second video deposition
was 5.5 hours. Thus, consistent with its ruling, the trial court should have reduced the hours by
5.5 hours.

        Although plaintiff contends that the .4 hours for a pretrial meeting with counsel before
the first trial was not recoverable, there is no indication that the trial court found the time spent
meeting with counsel and in preparation for the first deposition unreasonable. “MCL
600.2164(1) authorizes a trial court to award expert witnesses fees as an element of taxable
costs[,] and “[t]he trial court . . . has discretion under MCL 600.2164 to include fees for the
expert’s preparation time.” Guerrero, 280 Mich App at 675 (citations and quotation marks
omitted). Similarly, it was within the trial court’s discretion to include the 1.25 hours of
preparation time for the continuation of the first video deposition.




                                                -14-
        Next, we agree with plaintiff that the trial court incorrectly used a total of $9,835,8 but we
also disagree with the figure proposed by plaintiff. Plaintiff is correct that the sum of the billings
for the two depositions was $7,135. However, plaintiff fails to account for other bills from
October 2011 ($600), February 2012 ($600), and August 2012 ($900). The trial court, however,
appears to have erroneously counted the October 2011 bill twice, likely because it was
resubmitted in a second bill and, thus, appeared twice in the billing documents. Accordingly, we
conclude that the proper total was $9,235.

       We disagree with plaintiff, however, that the transcript cost of $965.45 was not
recoverable. MCL 600.2549 provides:

                Reasonable and actual fees paid for depositions of witnesses filed in any
        clerk’s office and for the certified copies of documents or papers recorded or filed
        in any public office shall be allowed in the taxation of costs only if, at the trial or
        when damages were assessed, the depositions were read in evidence, except for
        impeachment purposes, or the documents or papers were necessarily used.

Plaintiff argues that the transcript was only filed after her objection and to allow recovery would
render the statute meaningless. However, given that the transcript was filed before the trial court
awarded costs, there was no error. See Guerroro, 280 Mich App at 674 (“The costs of copying
the video depositions at issue here were properly taxed because the depositions were filed in the
clerk’s office and used as evidence at trial.”).

        Lastly, we disagree with plaintiff that any expenses associated with the repeat deposition
of Dr. Borreson were not taxable. As discussed above in Issue VIII, plaintiff fails to provide
support for her claim that the second video deposition was improper. As such, she fails to
establish that the recovery of costs were improper on this basis.

        Based on the foregoing, we conclude that the proper amount of taxable costs to which
defendants were entitled was $7,035. On remand, the trial court should modify the order taxing
costs accordingly, by decreasing the amount of taxable costs from $8,790.45 to $7,035.

    XIII. ORDER DENYING PLAINTIFF’S MOTION TO COMPEL PAYMENT OF EXPERT
                                WITNESS FEE

       Finally, plaintiff argues that the trial court erred in denying her motion to compel
payment of the expert witness fee for Dr. Swartz’s time spent travelling to and from the
videoconference center at defendants’ request. We disagree.

       While the hearing at which the trial court explained its reasoning for denying this motion
was not provided on appeal, this issue involves the interpretation of a court rule which we review



8
  The trial court must have used $9,835, the total amount requested by defendants, because
reducing that amount by 5.4 hours (5.4 hours at $400 an hour equals $2160) equals $7,675.


                                                 -15-
de novo. AFP Specialities, Inc v Vereyken, 303 Mich App 497, 504; 844 NW2d 470 (2014).
MCR 2.302(B)(4)(c) provides, in part:

       Unless manifest injustice would result

       (i) the court shall require that the party seeking discovery under subrules
       (B)(4)(a)(ii) or (iii) or (B)(4)(b) pay the expert a reasonable fee for time spent in a
       deposition, but not including preparation time[.]

The plain language of this rule allows the court to require the party seeking discovery to pay the
expert a reasonable fee only for time spent in a deposition. While plaintiff argues that travel time
is not preparation time, travel time is clearly not time spent in the deposition. Therefore, the trial
court did not err in denying plaintiff’s motion.

        Affirmed in part, reversed in part, and remanded for modification of the order taxing
costs consistent with this opinion. We do not retain jurisdiction. No costs under MCR 7.219,
neither party having prevailed in full.

                                                              /s/ Patrick M. Meter
                                                              /s/ Kurtis T. Wilder




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