                           STATE OF MICHIGAN

                            COURT OF APPEALS



BRENT THAYNE and WANDA THAYNE,                                     UNPUBLISHED
                                                                   November 9, 2017
                Plaintiffs-Appellants,

v                                                                  No. 334442
                                                                   Oakland Circuit Court
STEPHAN BRADSHAW and ALLSTATE                                      LC No. 2015-146669-NI
INSURANCE COMPANY,

                Defendants-Appellees.


Before: MURRAY, P.J., and FORT HOOD and GLEICHER, JJ.

PER CURIAM.

        Plaintiffs, Brent Thayne and Wanda Thayne,1 appeal as of right an order granting a
motion for summary disposition filed by defendant, Allstate Insurance Company (Allstate).2 We
reverse and remand for further proceedings consistent with this opinion.

        This case arises from an automobile collision that occurred on August 17, 2013. The
parties do not dispute that plaintiff was stopped at a traffic light on Elizabeth Lake Road in
Waterford when Stephan Bradshaw’s car struck plaintiff from behind. Plaintiff filed a complaint
against Bradshaw for negligence and loss of consortium, 3 and against Allstate for breaching the
“underinsured motorist” (UIM) provision of plaintiff’s insurance policy. The trial court’s
scheduling order was adjourned on multiple occasions during discovery, and ultimately, the trial
court ordered the parties to identify their expert witnesses by February 16, 2016. As relevant to
this appeal, plaintiff filed his first amended witness list on February 16, 2016, in which he
identified his first expert witness: Dr. Michael J. Heidenreich. On April 11, 2016, Bradshaw
filed a motion for summary disposition under MCR 2.116(C)(10), contending that plaintiff had


1
  Where Wanda Thayne’s claims are based on loss of consortium, our reference to plaintiff in
this opinion will refer to plaintiff Brent Thayne.
2
  Also at issue in this appeal are the trial court’s order granting Stephan Bradshaw’s motion for
summary disposition and the trial court’s order granting Stephen Bradshaw’s motion to strike
plaintiff’s third amended witness list.
3
    As noted above, the loss of consortium claim pertained to Wanda Thayne.


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failed to identify any “doctors who relate [Thayne’s] aneurysms to the accident, and as of the
date of this motion, has failed to identify any experts who will opine as to proximate cause.” On
April 14, 2016, plaintiff filed a third amended witness list. In this amended witness list, plaintiff
identified a new expert witness, Dr. Chris A. Van Ee, who was listed as a biomechanical
engineer. Plaintiff also sent a supplemental response to Bradshaw’s interrogatories, wherein
plaintiff identified Dr. Heidenreich as an expert who was expected to testify during trial, and
stated that he would provide an opinion regarding whether the automobile collision caused or
aggravated plaintiff’s “vascular condition.” Additionally, plaintiff identified Dr. Van Ee as a
“potential expert” who had been consulted but not retained. Subsequently, Bradshaw filed a
motion to strike plaintiff’s third amended witness list and preclude plaintiff from presenting
testimony or affidavits from Dr. Heidenreich or Dr. Van Ee. The trial court ultimately granted
Bradshaw’s motion to strike.

        On appeal, plaintiff contends that the trial court erred when it failed to consider the Dean4
factors before it sanctioned plaintiff by precluding evidence from his expert witnesses. We
agree.

        “The standard of review for decisions regarding sanctions for discovery violations is
abuse of discretion.” Jilek v Stockson (On Remand), 297 Mich App 663, 665; 825 NW2d 358
(2012) (citation omitted). Similarly, “[t]his Court reviews for an abuse of discretion a trial
court’s decision to bar witness testimony after a party has failed to timely submit a witness list.”
Duray Dev, LLC v Perrin, 288 Mich App 143, 162; 792 NW2d 749 (2010) (footnote and citation
omitted). “An abuse of discretion occurs when the decision is outside the range of principled
outcomes.” Hardrick v Auto Club Ins Ass’n, 294 Mich App 651, 659-660; 819 NW2d 28 (2011),
citing Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).

       Generally, “trial courts possess the inherent authority to sanction litigants and their
counsel, including the power to dismiss an action.” Id. at 376 (citations omitted). Under MCR
2.401(B)(2)(a)(iv), a trial court is authorized to establish a time for the exchange of witness lists,
and pursuant to MCR 2.401(I)(2), the trial court “may order that any witness not listed in
accordance with this rule will be prohibited from testifying at trial except upon good cause
shown.”

                 Once a party has failed to file a witness list in accordance with the
         scheduling order, it is within the trial court’s discretion to impose sanctions
         against that party. These sanctions may preclude the party from calling witnesses.
         Disallowing a party to call witnesses can be a severe punishment, equivalent to a
         dismissal. [Duray Dev, LLC, 288 Mich App at 164 (footnote and citation omitted;
         emphasis added).]

Further, “ ‘[t]he mere fact that a witness list was not timely filed does not, in and of itself, justify
the imposition of such a sanction.’ ” Id. at 165 n 53, quoting Dean v Tucker, 182 Mich App 27,
32; 451 NW2d 571 (1990).


4
    Dean v Tucker, 182 Mich App 27, 32-33; 451 NW2d 571 (1990).


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        In Duray Dev, LLC, this Court provided the nonexhaustive Dean factors, which trial
courts should carefully consider before sanctioning a party:

       (1) whether the violation was wilful 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. This list should not be
       considered exhaustive. [Duray Dev, LLC, 288 Mich App at 165, quoting Dean,
       182 Mich App at 32-33 (alteration in original).]

        “Where the sanction is the barring of an expert witness resulting in the dismissal of the
plaintiff’s action, the sanction should be exercised cautiously.” Dean, 182 Mich App at 32
(citation omitted). In Thorne v Bell, 206 Mich App 625, 633-634; 522 NW2d 711 (1994), this
Court held that the plaintiffs’ violation of the trial court’s scheduling order by failing to timely
file witness and exhibit lists did not justify the “harsh sanction[ ]” of dismissal of the plaintiffs’
complaints, where the record did not indicate “a history of recalcitrance or deliberate
noncompliance with discovery orders[.]”

         Our review of the record confirms that the trial court did not expressly consider the Dean
factors on the record during the April 27, 2016 motion hearing, and it did not otherwise indicate
that it had considered the Dean factors when it granted Bradshaw’s emergency motion to strike
plaintiff’s third amended witness list and preclude plaintiff’s expert witnesses from testifying.
Perhaps the closest the trial court came to considering a Dean factor was when it observed that
its scheduling order had been adjourned three times, however, it did not relate those
adjournments as delays that were attributable to plaintiff. In fact, Bradshaw had moved to
adjourn the scheduling order on all three occasions. Further, the record lacks any reference to
the trial court’s consideration of plaintiff’s history of compliance with discovery orders,
prejudice to Bradshaw, actual notice to Bradshaw, if plaintiff had any history of deliberate delay,
plaintiff’s compliance with the trial court’s other orders, and if plaintiff had tried to timely cure
these defects. The trial court also did not consider whether a lesser sanction would have been
appropriate instead of precluding both of plaintiff’s proposed expert witnesses. For example, the
trial court did not separately consider whether plaintiff’s proper identification of Dr. Heidenreich
as an expert witness before the elapsing of the February 16, 2016 deadline warranted the same
sanction of preclusion as plaintiff’s disclosure of Dr. Van Ee as a potential expert witness almost
two months after that deadline. Thus, there are no indicia that the trial court gave “ ‘careful
consideration’ ” to the Dean factors before it sanctioned plaintiff. Duray Dev, LLC, 288 Mich
App at 165, quoting Dean, 182 Mich App at 32. Therefore, where the trial court failed to
“carefully consider” the Dean factors, its determination to strike plaintiff’s third amended
witness list and to preclude the evidence of his expert witnesses amounted to an abuse of
discretion. Therefore, in reconsidering Bradshaw’s motion on remand, the trial court will have
the opportunity to articulate on the record its consideration of the Dean factors, and to weigh
whether plaintiff had good cause for his late identification of Dr. Van Ee. With regard to Dr.
Heidenreich, as noted above, we observe that he was named as an expert witness before the

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February 16, 2016 deadline and therefore, as a matter of law, he was named in a timely fashion
in conformance with the trial court’s orders.

       Plaintiff also argues that the trial court incorrectly determined that he had not put forth
admissible evidence of causation. We agree.

        This Court reviews a trial court’s decision on a motion for summary disposition de novo.
Zaher v Miotke, 300 Mich App 132, 139; 832 NW2d 266 (2013). In Maiden v Rozwood, 461
Mich 109, 120; 597 NW2d 817 (1999), the Michigan Supreme Court set forth the following legal
principles with respect to a motion for summary disposition brought pursuant to MCR
2.116(C)(10):

         In evaluating a motion for summary disposition brought under this subsection, a
         trial court considers affidavits, pleadings, depositions, admissions, and other
         evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable
         to the party opposing the motion. Where the proffered evidence fails to establish
         a genuine issue regarding any material fact, the moving party is entitled to
         judgment as a matter of law. MCR 2.116(C)(10), (G)(4). Quinto v Cross &
         Peters Co, 451 Mich 358; 547 NW2d 314 (1996).

        As the trial court observed, for reasons unclear, plaintiff did not identify his treating
physicians as expert witnesses. Thus, the trial court ruled that plaintiff’s treating physicians
would only be able to provide lay witness testimony under MRE 701. The trial court
consequently determined that plaintiff had failed to present admissible evidence causally relating
plaintiff’s medical condition to the automobile collision. This ruling was in error. Expert
testimony is generally required to prove causation. See, e.g., Lowery v Enbridge Energy Ltd
Partnership, 500 Mich 1034, 1048-1049; 898 NW2d 906 (2017) (MARKMAN, J., concurring).
However, in this case plaintiff presented as potential witnesses his three treating physicians who
could offer medical testimony with regard to the cause of plaintiff’s thrombosis of his bilateral
popliteal artery aneurysms. For example, plaintiff presented a copy of a May 31, 2016 letter
written by Dr. Judith C. Lin, M.D., a board-certified vascular surgeon,5 who opined that it was
likely that plaintiff developed the thrombosis as a consequence of the blunt trauma occurring
during his automobile accident.6 Although these physicians were not named as experts on
plaintiff’s witness lists, on remand, the trial court must also weigh the Dean factors in



5
    Dr. Lin is a Senior Staff Surgeon in the Division of Vascular Surgery at Henry Ford Hospital.
6
  While this letter from Dr. Lin, along with the evidence plaintiff submitted with respect to his
other treating physicians, may not have been admissible in its form, it was certainly admissible in
its substance, and therefore sufficient to withstand summary disposition. See Barnard Mfg Co,
Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 373; 775 NW2d 618 (2009)
(recognizing that while evidence offered in response to a motion for summary disposition
pursuant to MCR 2.116(C)(10) must be “substantively admissible, it does not have to be in
admissible form[ ]” provided it is admissible in content).


                                                 -4-
determining whether plaintiff may name these witnesses as experts in conformance with MCR
2.401(I)(1)(b).7

         Finally, plaintiff argues that this Court should order that Bradshaw’s witnesses, Charles
Funk, Ph.D. and Steven Rundell, Ph.D., are not qualified to testify as expert witnesses on issues
of causation pursuant to MRE 702. We are aware that plaintiff filed a motion to strike and
exclude the medical causation opinions of Funk and Rundell in the trial court and Bradshaw and
Allstate filed responses. It appears that the trial court did not rule on the motion on the merits
given its ruling with respect to Bradshaw’s motion for summary disposition.8 Both defendants
devote a significant portion of their briefs on appeal to arguing that Funk and Rundell should be
able to testify as experts concerning matters of causation. To the extent that the trial court did
not decide the motions, any issues pertaining to these witnesses are unpreserved, and will not be
addressed for the first time on appeal. Fast Air, Inc v Knight, 235 Mich App 541, 549; 599
NW2d 489 (1999). This Court is an error-correcting Court, and it would be inappropriate for this
Court to address in the first instance any issues concerning the proposed witnesses’ qualifications
to testify regarding matters of causation. See WA Foote Memorial Hosp v Michigan Assigned
Claims Plan, ___ Mich App ___, ___; ___ NW2d ____ (2017) (Docket No. 333360); slip op at
11 (recognizing that the Court of Appeals is “an error-correcting Court.”)

        Accordingly, we reverse (1) the trial court’s order granting summary disposition in favor
of Bradshaw, (2) the trial court’s order granting summary disposition in favor of Allstate, (3) the
trial court’s order striking plaintiff’s third amended witness list and (4) the trial court’s order
granting Bradshaw’s motion for case evaluation sanctions. We remand for proceedings
consistent with this opinion. We do not retain jurisdiction.



                                                            /s/ Christopher M. Murray
                                                            /s/ Karen M. Fort Hood
                                                            /s/ Elizabeth L. Gleicher




7
  Given our disposition of this issue, we need not address plaintiff’s additional arguments
challenging the trial court’s ruling with regard to causation. We also decline Bradshaw’s
invitation to hold that plaintiff’s treating physicians do not meet the requirements of MRE 702.
8
  Plaintiff also touched on the ability of Funk and Rundell to testify regarding causation in his
response to Bradshaw’s motion for summary disposition. However, the trial court, while
mentioning the issue during the June 22, 2016 hearing on the motion, did not decide the issue
definitively.


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