                                                                       Michigan Supreme Court
                                                                             Lansing, Michigan
                                                Chief Justice:	          Justices:



Opinion                                         Clifford W. Taylor 	     Michael F. Cavanagh
                                                                         Elizabeth A. Weaver
                                                                         Marilyn Kelly
                                                                         Maura D. Corrigan
                                                                         Robert P. Young, Jr.
                                                                         Stephen J. Markman




                                                         FILED July 12, 2005

 JOHANNA WOODARD, Individually and as
 Next Friend of AUSTIN D. WOODARD,
 a Minor, and STEVEN WOODARD

       Plaintiffs-Appellees,

       and Cross-Appellants                 


 v                                                                      	 o. 124994
                                                                        N

 JOSEPH R. CUSTER, M.D.,

       Defendant-Appellant,

       and Cross-Appellee       


 and

 MICHAEL K. LIPSCOMB, M.D.,
 MICHELLE M. NYPAVER, M.D., and
 MONA M. RISKALLA, M.D.,

      Defendants.
 ______________________________________

 JOHANNA WOODARD, Individually and as
 Next Friend of AUSTIN D. WOODARD,
 a Minor, and STEVEN WOODARD,

       Plaintiffs-Appellees

       and Cross-Appellants,            


 v                                                                     No. 124995

 UNIVERSITY OF MICHIGAN MEDICAL
 CENTER,

       Defendant-Appellant

       and Cross-Appellee.          

______________________________________

BEFORE THE ENTIRE BENCH

MARKMAN, J.

       The question presented to this Court is whether expert

testimony is necessary in the circumstances of this case.

We conclude that it is.

                      I. FACTS   AND   PROCEDURAL HISTORY

       Plaintiffs’ fifteen-day-old son was admitted to the

Pediatric Intensive Care Unit (PICU) at the University of

Michigan Hospital, where he was treated for a respiratory

problem.      During his stay in the PICU, he was under the

care of Dr. Joseph R. Custer, the Director of Pediatric

Critical Care Medicine.           When the infant was moved to the

general hospital ward, physicians in that ward discovered

that both of the infant’s legs were fractured.                    Plaintiffs

sued    Dr.    Custer   and      the    hospital,     alleging    that   the

fractures were the result of negligent medical procedures,

namely, the improper placement of an arterial line in the

femoral vein of the infant’s right leg and the improper

placement of a venous catheter in the infant’s left leg.

       Defendant physician is board-certified in pediatrics

and has certificates of special qualifications in pediatric

critical      care   medicine     and        neonatal-perinatal   medicine.

Plaintiffs’ proposed expert witness, who signed plaintiffs’


                                        2

affidavit of merit, is board-certified in pediatrics, but

does not have any certificates of special qualifications.

        Before discovery, the trial court denied defendants’

motion for summary disposition, concluding that plaintiffs’

attorney had a “reasonable belief” under MCL 600.2912d(1)

that    plaintiffs’        proposed     expert     witness         was    qualified

under     MCL    600.2169         to   testify     against         the    defendant

physician, and, thus, that plaintiffs’ affidavit of merit

was sufficient.           After discovery, the trial court granted

defendants’ motion to strike plaintiffs’ expert witness on

the basis that he was not actually qualified under MCL

600.2169 to testify against the defendant physician.                              The

trial    court    dismissed        plaintiffs’      claim     with       prejudice,

concluding that plaintiffs could not reach a jury without

expert testimony.

        The Court of Appeals affirmed the trial court’s ruling

that plaintiffs’ proposed expert witness was not qualified

under     MCL    600.2169         to   testify     against         the    defendant

physician       (Judge    Borrello      dissented    on     this     issue),      but

reversed    the    trial     court’s     dismissal       on    the       basis   that

expert testimony was unnecessary under the doctrine of res

ipsa    loquitur,      i.e.,      an   inference    of    negligence        may    be

drawn from the fact that the infant was admitted to the

PICU with healthy legs and discharged from the PICU with

fractured       legs     (Judge    Talbot   dissented         on    this    issue).
                                        3
Unpublished    opinion   per    curiam,    issued   October    21,    2003

(Docket Nos. 239868-239869).           The case was remanded for

trial.

     Defendants sought leave to appeal the Court of Appeals

decision that res ipsa loquitur applies and that expert

testimony was not necessary.           Plaintiffs sought leave to

cross-appeal    the   Court     of   Appeals    decision    that      their

proposed    expert    witness    was      not   qualified     under     MCL

600.2169 to testify against the defendant physician.                    We

heard oral argument on whether to grant the applications or

take other peremptory action permitted by MCR 7.302(G)(1).

471 Mich 890.     We have granted plaintiffs’ application for

leave to appeal as cross-appellants.1            In this opinion, we

address only defendants’ application for leave to appeal.


     1
         That order states:

           On December 9, 2004, the Court heard oral
     argument on defendants’ application for leave to
     appeal the October 21, 2003, judgment of the
     Court    of   Appeals    and   plaintiffs’    cross-
     application for leave to appeal.         Plaintiffs’
     cross-application for leave to appeal is again
     considered and it is GRANTED.      The parties are
     directed to include among the issues to be
     briefed: (1) what are the appropriate definitions
     of the terms “specialty” and “board certified” as
     used in MCL 600.2169(1)(a); (2) whether either
     “specialty”    or    “board   certified”    includes
     subspecialties    or    certificates   of    special
     qualifications; (3) whether MCL 600.2169(1)(b)
     requires an expert witness to practice or teach
     the same subspecialty as the defendant; (4)
     whether MCL 600.2169 requires an expert witness
                                                  (continued…)
                               4
                       II. STANDARD      OF   REVIEW

     This    Court   reviews   de        novo     decisions   on   summary

disposition motions.     Grossman v Brown, 470 Mich 593, 598;

685 NW2d 198 (2004).

                           III. ANALYSIS

     Plaintiffs argue that expert testimony is unnecessary

in this case because of the doctrine of res ipsa loquitur.

In   a   medical     malpractice         case,     the   plaintiff   must

establish:

          (1) the applicable standard of care, (2)
     breach of that standard of care by the defendant,
     (3) injury, and (4) proximate causation between
     the alleged breach and the injury.      [Locke v
     Pachtman, 446 Mich 216, 222; 521 NW2d 786
     (1994).]



(…continued)
     to match all specialties, subspecialties, and
     certificates of special qualifications that a
     defendant may possess, or whether the expert
     witness need only match those that are relevant
     to the alleged act of malpractice.    See Tate v
     Detroit Receiving Hosp, 249 Mich App 212 (2002);
     and (5) what are the relevant specialties,
     subspecialties,   and   certificates of   special
     qualifications in this case.

          The   American    Osteopathic    Association’s
     Bureau    of    Osteopathic    Specialists,     the
     Accreditation   Council   for   Graduate    Medical
     Education, and the Council of Medical Specialty
     Societies are invited to file briefs amicus
     curiae.   Other persons or groups interested in
     the determination of the questions presented in
     this case may move the Court for permission to
     file briefs amicus curiae.         [473 Mich ___
     (2005).]


                                    5

See MCL 600.2912a.        Generally, expert testimony is required

in medical malpractice cases.           Locke, supra at 230.

          This   Court   has   long   recognized  the
     importance of expert testimony in establishing a
     medical malpractice claim, and the need to
     educate the jury and the court regarding matters
     not within their common purview. . . . While we
     have recognized exceptions to this requirement,
     the benefit of expert testimony, particularly in
     demonstrating the applicable standard of care,
     cannot be overstated. [Id. at 223-224.]

However,     if    a   medical   malpractice    case   satisfies   the

requirements of the doctrine of res ipsa loquitur, then

such case may proceed to the jury without expert testimony.

Id. at 230.         Res ipsa loquitur is a Latin term meaning,

“[t]he thing speaks for itself.”             Black’s Law Dictionary

(6th ed).2

          [R]es ipsa loquitur . . . entitles a
     plaintiff   to   a    permissible   inference of
     negligence from circumstantial evidence.

          The major purpose of the doctrine of res
     ipsa loquitur is to create at least an inference
     of negligence when the plaintiff is unable to
     prove the actual occurrence of a negligent
     act. . . .

          In       a proper res ipsa loquitur medical case,
     a jury       is permitted to infer negligence from a
     result       which they conclude would not have been
     reached       unless someone was negligent.   [Jones v


     2
       “Res ipsa loquitur” is the “[r]ebuttable presumption
or inference that defendant was negligent, which arises
upon proof that the instrumentality causing injury was in
defendant’s exclusive control, and that the accident was
one which ordinarily does not happen in absence of
negligence.” Id.

                                   6

     Porretta, 428 Mich 132, 150, 155-156; 405 NW2d
     863 (1987).]

In order to avail themselves of the doctrine of res ipsa

loquitur, plaintiffs must meet the following conditions:

          “(1) the event must be of a                   kind which
     ordinarily does not occur in the                   absence of
     someone’s negligence;

          (2) it must be caused by an agency or
     instrumentality within the exclusive control of
     the defendant;

          (3) it must not have been due to any
     voluntary action or contribution on the part of
     the plaintiff”; and

          (4) “[e]vidence of the true explanation of
     the event must be more readily accessible to the
     defendant than to the plaintiff.”   [Id. at 150-
     151 (citations omitted).]

     With regard to the first condition, this Court has

held that “the fact that the injury complained of does not

ordinarily occur in the absence of negligence must either

be supported by expert testimony or must be within the

common understanding of the jury.”                 Locke, supra at 231.

In this case, whether a leg may be fractured in the absence

of negligence when placing an arterial line or a venous

catheter    in    a    newborn’s   leg    is   not   within   the   common

understanding of the jury, and, thus, expert testimony is

required.        That is, plaintiffs needed to produce expert

testimony    to       support   their     theory     that   the   infant’s

injuries    were       not   the   unfortunate       complication   of   a



                                     7

reasonably      performed     medical          procedure.       As    this    Court

explained in Jones, supra at 154:

            [I]n a normal professional negligence case,
       a bad result, of itself, is not evidence of
       negligence sufficient to raise an issue for the
       jury. . . .    Something more is required, be it
       the common knowledge that the injury does not
       ordinarily occur without negligence or expert
       testimony to that effect.

            In a case where there is no expert evidence
       that “but for” negligence this result does not
       ordinarily occur, and in which the judge finds
       that such a determination could not be made by
       the jury as a matter of common understanding, a
       prima facie case has not been made, and a
       directed verdict is appropriate.

       Whether,       “but   for”    negligence,          the   newborn’s      legs

would not have been fractured is not a determination that

can    be      made    by    the     jury       as   a     matter     of     common

understanding.        As the trial court explained:

            Whether the fractures could have occurred in
       the absence of someone’s negligence is an
       allegation that must be supported by expert
       testimony; the procedures [the infant] underwent
       are not within the common knowledge of a
       reasonably prudent jury.     Furthermore, whether
       fractures of the kinds suffered by [the infant]
       are possible complications arising from the types
       of procedures performed during [his] stay at the
       Pediatric ICU is knowledge that is exclusively
       within the expertise of the medical profession.

And, as Judge Talbot in dissent in the Court of Appeals

explained,      “[a]ssuming        that   the     fractures     may    have    been

caused by the placement of the lines in the infant’s legs,

the risks associated with the placement of arterial lines

or    venous    catheters     in     a    newborn        infant,     and   whether
                                          8

fractures        ordinarily      do    not   occur   in    the    absence   of

negligence, are not within common knowledge of a reasonably

prudent fact finder.”             Slip op at 9.           Because we do not

know whether the injury complained of does not ordinarily

occur       in   the   absence   of    negligence,   we     cannot   properly

apply the doctrine of res ipsa loquitur.

        Plaintiffs argue that, even if res ipsa loquitur does

not apply, expert testimony is not required because the

alleged negligence was within the common understanding of

the jury.         For the same reason that we conclude that res

ipsa loquitur does not apply here—whether a leg may be

fractured        in    the   absence   of    negligence    when   placing   an

arterial line or a venous catheter in a newborn’s leg is

not within the common understanding of the jury—we conclude

that this latter exception to the requirement of expert

testimony also does not apply.3


        3
       Our dissenting colleagues criticize us for deciding
defendants’ application for leave to appeal separately from
plaintiffs’   cross-application  for   leave    to   appeal.
However, it is only logical to determine whether expert
testimony is required, the issue raised in defendants’
application for leave to appeal, before determining whether
plaintiffs’ proposed expert is qualified to testify, the
issue raised in plaintiffs’ cross-application for leave to
appeal. If we were to determine that expert testimony was
not required, there would be no need to determine whether
plaintiffs’ expert is qualified to testify.      Because we
have determined in this opinion that expert testimony is
required, we must next determine whether plaintiffs’
proposed expert is qualified to testify.     Because of the
complexities and the importance of the latter issue, we
                                                (continued…)
                              9
                            IV. CONCLUSION

     Expert testimony is required because whether a leg may

be fractured in the absence of negligence when placing an

arterial line or a venous catheter in a newborn’s leg is

not within the common understanding of a jury.                We have

granted   plaintiffs’     application   for   leave   to    appeal   as

cross-appellants,   and    will   determine   whether      plaintiffs’

expert is qualified, within the meaning of MCL 600.2169, to

testify   against   the    defendant    physician.      Accordingly,

while we now hold that this case cannot proceed to a jury

on a res ipsa loquitur theory, the entry of final judgment

in this case must await our determination of the expert-

qualification issue.4

                                   Stephen J. Markman
                                   Clifford W. Taylor
                                   Maura D. Corrigan
                                   Robert P. Young, Jr.



(…continued)
have granted plaintiffs’ cross-application for leave to
appeal.    However, because we have already reached a
decision on the former issue, and because we believe that
the Court of Appeals erred in its analysis of the res ipsa
loquitur doctrine, we issue our opinion on this former
issue today.
     4
        Justice Cavanagh concludes that “the trial court
abused its discretion in not granting plaintiffs’ motion
for an extension of time to add a new expert witness.”
Post at 2. Because plaintiffs have not appealed the trial
court’s   decision  denying  plaintiffs’ motion   for  an
extension of time to add a new expert witness, we do not
address this issue.

                                  10

               S T A T E     O F   M I C H I G A N 


                           SUPREME COURT 



JOHANNA WOODARD, Individually and as
Next Friend of AUSTIN D. WOODARD,
a Minor, and STEVEN WOODARD,

      Plaintiffs-Appellees
      and Cross-Appellants,

v                                                       No. 124994

JOSEPH R. CUSTER, M.D.,

      Defendant-Appellant
      and Cross-Appellee,

and

MICHAEL K. LIPSCOMB, M.D.,
MICHELLE M. NYPAVER, M.D., and
MONA M. RISKALLA, M.D.,

     Defendants.
______________________________________

JOHANNA WOODARD, Individually and as
Next Friend of AUSTIN D. WOODARD,
a Minor, and STEVEN WOODARD,

      Plaintiffs-Appellees
      and Cross-Appellants,

v                                                      No. 124995

UNIVERSITY OF MICHIGAN MEDICAL
CENTER,

      Defendant-Appellant
      and Cross-Appellee.

CAVANAGH, J. (concurring in part and dissenting in part).

      I concur with the majority’s conclusion that expert

witness testimony is necessary in this case because I agree
that the medical procedures at issue are not within the

common understanding of a jury.              I also concur with Justice

Weaver that defendant’s1 appeal and plaintiffs’ cross-appeal

should      not   be   bifurcated,    but    should     be   considered      and

decided      together.       Like    Justice      Weaver,    I    would      have

granted      defendant’s     application     rather      than    peremptorily

reversing the Court of Appeals.              I write separately because

I find that although expert testimony is required in this

case, the trial court abused its discretion in not granting

plaintiffs’ motion for an extension of time to add a new

expert witness.

       As    noted     by   the    Court    of    Appeals,      some    of   the

procedural aspects of this case are not definitively clear

on the existing record, which may lead one to question

which of the parties’ multiple motions were the impetus for

the trial court’s ultimate dismissal of plaintiffs’ claims.

After discovery, defendants University of Michigan Medical

Center and Dr. Custer moved to strike plaintiffs’ expert

witness      as   unqualified.        They       also   moved    for    summary

disposition        under     MCR    2.116(C)(10)        on      other     bases,

including allegations that a claim for respondeat superior

did not lie and that plaintiffs’ testimony did not support

a claim for negligent infliction of emotional distress.                       In


       1
           The singular “defendant” refers to Joseph R. Custer,
M.D.

                                       2

response to defendants’ claim that plaintiffs’ expert was

not qualified, plaintiffs alleged that they did not need an

expert witness at all because the matters to be decided

were within the common understanding of a jury.

        At    the    hearing       on    these      motions,     the        trial      court

granted defendants’ motion to strike plaintiffs’ expert,

but did not address whether expert testimony was required.

Defendants          then   moved     to    enter     an    order       of    dismissal,

presumably          because     they       assumed        that    an        expert       was

required.           Plaintiffs objected to the order, requested a

determination          whether       expert      testimony       was     needed,        and

moved to “extend time” to add an expert witness.                              The trial

court        determined       that      expert      testimony      was       necessary,

denied       the    motion    to     add   an    expert,     and,      as     a   result,

entered        an     order     dismissing          plaintiffs’          claims        with

prejudice.

        While plaintiffs’ appellate challenges to the trial

court’s       dismissal       have      focused     primarily       on      plaintiffs’

claim        that     their     expert        was     qualified        or,        in    the

alternative, that expert testimony was not required, the

trial court’s order denying plaintiffs’ motion to add an

expert was inextricably intertwined with its decision to

dismiss the case.             In other words, the trial court’s denial

of plaintiffs’ motion to add an expert and its grant of

defendants’          motion     to      strike      plaintiffs’          expert        were

                                            3

equally dispositive of plaintiffs’ claims.                       Thus, by virtue

of opposing defendants’ application for leave to appeal and

mounting        their    own   challenges           to     the    trial     court’s

dismissal,       plaintiffs        are     necessarily,          albeit     somewhat

indirectly, challenging the trial court’s denial of their

motion    to     add    an   expert.            Contrary    to    the     majority’s

position, ante at 11 n 4, I believe that the ruling on the

motion to add an expert is fairly encompassed in the issues

this Court is addressing.

        Thus,    having      found       that     plaintiffs       needed     expert

witness testimony, I would then find that the trial court

abused its discretion by denying plaintiffs’ motion for an

extension of time to add an expert witness and dismissing

the case with prejudice.             A trial court’s decision whether

to allow a plaintiff to add an expert witness is reviewed

for abuse of discretion, as is a trial court’s ruling on

adjournment.           See Klabunde v Stanley, 384 Mich 276, 281;

181 NW2d 918 (1970); Tisbury v Armstrong, 194 Mich App 19,

20; 486 NW2d 51 (1992).              MCR 2.401(I)(2) states that if a

party fails to list a witness by the time designated by the

trial court, “[t]he 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.”                             Thus,

in considering a motion to amend a witness list, the trial

court     should       determine     whether        the    party     seeking    the

                                           4

amendment        demonstrated         good         cause.              Similarly,

considerations      for    a    motion      to    adjourn       or   extend      time

include whether the requesting party has sought numerous

past   continuances,       whether     the       party    has    exercised        due

diligence, and the “lack of any injustice to the movant.”

Tisbury, supra at 20.

       Another important consideration, though, is our legal

system’s preference for disposition of litigation on the

merits.     See Wood v Detroit Automobile Inter-Ins Exch, 413

Mich 573, 581; 321 NW2d 653 (1982).                      Thus, if denying a

motion to extend time to add an expert witness extinguishes

a plaintiff’s cause of action, that factor should be given

due weight.       See Dean v Tucker, 182 Mich App 27, 32; 451

NW2d 571 (1990).          A trial court should recognize that it

has other, less drastic, measures available to it by which

to   ameliorate     any    inconvenience          caused    to       the   opposing

party.     Id.   For example, the trial court could require the

plaintiff to pay any deposition or other costs, including

attorney    fees,   associated       with        the    delay    caused     by   the

plaintiff’s      failure       to   timely       name    the     witness.          In

addition, the trial court should have carefully weighed the

available options and expressed reasons why dismissal with

prejudice was preferable over other alternatives.                           Id. at

32-33.



                                       5

        In this case, plaintiffs moved for an extension of

time to add an expert witness directly after the trial

court        struck     the   expert       witness      that    plaintiffs    timely

presented.            The controversy surrounding plaintiffs’ named

expert pertained to problematic language in MCL 600.2169,

language that this Court had not then, and has not yet,

fully       construed.          In    fact,    whether        plaintiffs’   original

expert witness was qualified to testify in this case is the

subject of plaintiffs’ yet to be decided cross-appeal.                             A

look        at   this   Court’s       order        granting    plaintiffs’   cross-

application for leave to appeal, 473 Mich ___ (2005), which

contains         a   list     of     unanswered       questions    regarding     what

qualifications an expert witness in a medical malpractice

case must have, is illustrative of the unsettled nature and

complexity of MCL 600.2169.

        Clearly,        then,      there      are    apparent     difficulties    in

interpreting exactly what qualifications are required of a

medical malpractice expert witness.                       Where this Court has

not agreed on the proper construction of the statute,2 and

has expressly left for another day several of the precise

questions at the core of the qualifications debate in this




        2
       See, e.g., Halloran v Bhan, 470 Mich 572; 683 NW2d
129 (2004), and Grossman v Brown, 470 Mich 593; 685 NW2d
198 (2004).

                                              6

case,3       a    plaintiff      who     has       made    a   good-faith      effort      to

satisfy          unconstrued       statutory             criteria     should       not      be

penalized for ostensibly failing to meet the criteria with

the ultimate sanction of dismissal with prejudice.4                                Rather,

I would hold that where the trial court determined that the

requirements of MCL 600.2169 had not been met, it should

also have found that plaintiffs demonstrated good cause to

seek additional time to add a new expert.                                   Further, the

court       should       have    found    that       disposition       on    the     merits

outweighed any prejudice a short delay might have caused

defendants.             And as noted, the trial court could still have

maintained          sufficient         control       over      its    docket    by,        for

example,         setting     a   deadline           by    which   plaintiffs         had   to

present their new expert and invoking other measures to

mitigate any harm to defendants.

        On       that    basis    alone,       I    would      hold   that     the    trial

court, having found that plaintiffs’ expert did not meet

the criteria contained in the statute, should have granted

        3
            Halloran, supra at 577 n 5; Grossman, supra at 600 n
7.
        4
       I make no conclusions regarding whether plaintiffs’
expert was indeed qualified for trial purposes. Because a
majority of this Court insists on deciding this portion of
the case today and the expert witness portion of the case
at a later date, I will assume for purposes of this opinion
that plaintiffs at least had a good-faith belief that their
expert complied with the statutory mandates.           This
admittedly awkward position is the direct result of the
majority’s refusal to address these interconnected issues
at the same time.

                                               7

plaintiffs    additional   time        to   procure     another     expert

instead of dismissing plaintiffs’ claim with prejudice and

permanently   depriving    plaintiffs       of    a   cause   of   action.

Because trial was still two months away, any delay would

have been minimal and containable.               Plaintiffs had sought

no previous continuances, and their request was not the

result of a lack of due diligence.5

     For these reasons, I dissent from the majority opinion

granting peremptory reversal to defendant.

                                  Michael F. Cavanagh
                                  Marilyn Kelly




     5
       To the extent defendant argues that plaintiffs were
on notice that defendant would challenge their expert’s
qualifications, I find the argument without merit.    It is
not unusual for a defendant in a medical malpractice suit
to launch a challenge of that type.      And on defendants’
first challenge to the expert, which occurred directly
after plaintiffs filed their complaint and affidavit of
merit, the trial court found that the expert met the
threshold requirements for purposes of the affidavit of
merit.   The mere fact that the trial court reserved for a
later date the question whether the expert could offer
trial testimony does not, in my view, compel a finding that
plaintiffs should have automatically sought a replacement
expert at that juncture, as defendant implies.

                                  8

               S T A T E     O F       M I C H I G A N 


                           SUPREME COURT 



JOHANNA WOODARD, Individually and as
Next Friend of AUSTIN D. WOODARD,
a Minor, and STEVEN WOODARD,

      Plaintiffs-Appellees

      and Cross-Appellants,            


v                                                           No. 124994

JOSEPH R. CUSTER, M.D.,

      Defendant-Appellant

      and Cross-Appellee,          


and

MICHAEL K. LIPSCOMB, M.D.,
MICHELLE M. NYPAVER, M.D., and
MONA M. RISKALLA, M.D.,

     Defendants.
______________________________________

JOHANNA WOODARD, Individually and as
Next Friend of AUSTIN D. WOODARD,
a Minor, and STEVEN WOODARD,

      Plaintiffs-Appellees

      and Cross-Appellants,            


v                                                          No. 124995

UNIVERSITY OF MICHIGAN MEDICAL
CENTER,

     Defendant-Appellant

     and Cross-Appellee.     

______________________________________

WEAVER, J. (dissenting).
     While   I   would        likely       agree        with     the   majority

conclusion   that   expert      testimony          is    necessary     in    the

circumstances of this case, I dissent from the majority

decision,    because      I     would       not         decide     defendants’

application for leave to appeal separately from plaintiffs’

cross-application   for       leave    to    appeal       and    without    full

briefing and argument.          Plaintiffs’ cross-application was

granted at 473 Mich ___ (2005).

                                       Elizabeth A. Weaver




                                      2

