                           STATE OF MICHIGAN

                            COURT OF APPEALS



RYAN LOHMANN,                                                          UNPUBLISHED
                                                                       February 17, 2015
               Plaintiff-Appellee,

v                                                                      No. 318530
                                                                       Macomb Circuit Court
FAMILY DOCTOR,                                                         LC No. 2012-004782-NH

               Defendant-Appellant.


Before: FORT HOOD, P.J., and JANSEN and GADOLA, JJ.

PER CURIAM.

       Defendant, Family Doctor, appeals as of leave granted1 an order denying defendant’s
motion to strike plaintiff’s first affidavit of merit and an order granting plaintiff’s motion to file
an amended witness list, add a new expert witness, and file a new affidavit of merit. On appeal,
defendant argues that the trial court erred in refusing to strike plaintiff’s affidavit of merit and in
allowing plaintiff to file a new affidavit of merit. We reverse and remand for proceedings
consistent with this opinion.

        This case arises from plaintiff’s medical malpractice complaint against defendant, a
medical facility in Clinton Township, Michigan. Plaintiff claims that defendant’s agent
committed malpractice while drawing plaintiff’s blood, resulting in injuries to plaintiff. The
issues on appeal relate to plaintiff’s affidavit of merit, filed with plaintiff’s complaint. During
the lower court proceedings, it was revealed that plaintiff’s expert witness, Ronhald Gregalit,
was unqualified and that the affidavit of merit was premised on false statements. The trial court
denied defendant’s motion to strike plaintiff’s affidavit of merit based on the false statements and
allowed plaintiff to file a new affidavit of merit, which prompted defendant’s current appeal.

        Defendant first argues that the trial court erred in denying defendant’s motion to strike
plaintiff’s affidavit of merit. We agree.




1
 Lohmann v Family Doctor, unpublished order of the Court of Appeals, entered April 28, 2014
(Docket No. 318530).


                                                 -1-
        This Court reviews a trial court’s decision on a motion to strike an affidavit of merit for
an abuse of discretion. Kalaj v Khan, 295 Mich App 420, 425; 820 NW2d 223 (2012). “An
abuse of discretion occurs when the trial court’s decision is outside the range of reasonable and
principled outcomes.” Id. Whether a plaintiff’s affidavit of merit complied with the
requirements of MCL 600.2912d is reviewed de novo as a question of law. Lucas v Awaad, 299
Mich App 345, 377; 830 NW2d 141 (2013). Questions of statutory interpretation are also
reviewed de novo. Ligons v Crittenton Hosp, 490 Mich 61, 70; 803 NW2d 271 (2011).

     Affidavits of merit are statutorily required in medical malpractice actions, pursuant to
MCL 600.2912d(1), which requires the following:

       [T]he plaintiff in an action alleging medical malpractice or, if the plaintiff is
       represented by an attorney, the plaintiff’s attorney shall file with the complaint an
       affidavit of merit signed by a health professional who the plaintiff’s attorney
       reasonably believes meets the requirements for an expert witness under section
       2169.

MCL 600.2169 provides the criteria for a qualified expert witness. MCL 600.2169 provides in
relevant part:

           (a) If the party against whom or on whose behalf the testimony is offered is a
       specialist, specializes at the time of the occurrence that is the basis for the action
       in the same specialty as the party against whom or on whose behalf the testimony
       is offered. However, if the party against whom or on whose behalf the testimony
       is offered is a specialist who is board certified, the expert witness must be a
       specialist who is board certified in that specialty.

           (b) Subject to subdivision (c), during the year immediately preceding the date
       of the occurrence that is the basis for the claim or action, devoted a majority of his
       or her professional time to either or both of the following:

             (i) The active clinical practice of the same health profession in which the
       party against whom or on whose behalf the testimony is offered is licensed and, if
       that party is a specialist, the active clinical practice of that specialty.

             (ii) The instruction of students in an accredited health professional school or
       accredited residency or clinical research program in the same health profession in
       which the party against whom or on whose behalf the testimony is offered is
       licensed and, if that party is a specialist, an accredited health professional school
       or accredited residency or clinical research program in the same specialty.

In it undisputed here that Gregalit did not meet the requirements of MCL 600.2169.

       The crux of the issue between the parties is whether plaintiff’s attorney reasonably
believed that Gregalit complied with the requirements of MCL 600.2169. Pursuant to MCL
600.2912d(1), a plaintiff’s attorney must only reasonably believe that the proposed expert meets
the requirements for an expert witness. In determining the reasonableness of an attorney’s belief,

                                                -2-
this Court looks to the resources available at the time the affidavit of merit was prepared.
Grossman v Brown, 470 Mich 593, 599-600; 685 NW2d 198 (2004). Because limited
information is available to plaintiff’s attorney at the time the affidavit of merit is prepared, he or
she “must therefore be allowed considerable leeway in identifying an expert affiant.” Bates v
Gilbert, 479 Mich 451, 458; 736 NW2d 566 (2007), citing Grossman, 470 Mich at 599.
However, “such leeway cannot be unbounded. The plaintiff’s counsel must invariably have a
reasonable belief that the expert satisfies the requirements of MCL 600.2169.” Bates, 479 Mich
at 458.

        We conclude that plaintiff’s attorney did not have a reasonable belief that Gregalit met
the requirements for an expert witness. Initially, we note that plaintiff’s attorney never filed an
affidavit or other documentary evidence regarding the basis for his reasonable belief. From the
existing record, it appears that plaintiff’s attorney undertook absolutely no inquiry into whether
Gregalit was a qualified expert witness. Plaintiff’s attorney only attests, with no evidentiary
support, that an associate at his prior law firm had previously used Gregalit as an expert in
phlebotomy. We do not believe that unsupported assertion is sufficient to establish a reasonable
belief of Gregalit’s qualifications. Plaintiff’s attorney assumed Gregalit was qualified, and did
not request a resume or curriculum vitae, or proof of Gregalit’s certification or license. Pursuant
to the deposition, Gregalit’s certificate of phlebotomy was plainly expired. In addition, a brief
internet search showed that Gregalit’s emergency medical technician (EMT) license had expired
by the time of the deposition.2 Further, plaintiff’s attorney seemingly did not even ask Gregalit
about his current employment. Even in plaintiff’s brief on appeal, plaintiff’s attorney states that
Gregalit did not tell him the affidavit of merit, prepared by plaintiff’s attorney, was wrong;
plaintiff’s attorney never asked if Gregalit met even the minimal requirements for an expert
witness. The fact that plaintiff’s attorney sent Gregalit a prepared affidavit of merit and Gregalit
made changes to the document was not sufficient for plaintiff’s attorney to form a reasonable
belief that Gregalit was qualified. Based on the record, plaintiff’s attorney failed to use the
resources available to him at the time of the creating of the affidavit of merit, the most pertinent
being Gregalit himself.

        Our decision is consistent with this Court’s analysis in Geralds v Munson Healthcare,
259 Mich App 225; 673 NW2d 792 (2003), rev’d on other grounds in Kirkaldy v Rim, 478 Mich
581; 734 NW2d 201 (2007). Geralds involved the plaintiff’s counsel’s belief regarding its
expert witness’ board certification, where the defendant was board certified in emergency
medicine, but the plaintiff’s expert was not. The plaintiff’s counsel submitted an affidavit
reflecting that he believed his expert, Dr. Podgorny, was board certified because (1) another
board certified physician recommended Podgorny and indicated Podgorny was board certified;
(2) Podgorny was a former President of the American Board of Emergency Medicine; (3)
Podgorny was an examiner for the board and the board’s website indicated that examiners must
be board certified and (4) in the attorney’s experience, he had never seen an instance where a
physician was an officer of a specialty board but was not board certified. Nevertheless,
Podgorny’s curriculum vitae did not indicate that he was board certified in emergency medicine.


2
    A brief internet search also revealed that phlebotomy is not a valid license in Michigan.


                                                  -3-
Geralds, 259 Mich App at 228-229. The trial court decided that counsel should have asked
Podgorny if he was board certified and as a result, counsel’s belief to the contrary was not
reasonable. The trial court struck the affidavit of merit and granted the defendant’s motion for
summary disposition. On appeal, the Geralds Court stated:

       It is unreasonable for an attorney to form a belief regarding the board certification
       of a physician without asking the physician about his board certification. As
       skilled and experienced as plaintiff’s attorneys appear to be, the failure to ask the
       four word question, “Are you board certified?” and the failure to examine [the
       affiant’s] curriculum vitae, which contains no mention of board certification in
       emergency medicine, were not reasonable under the circumstances. [Id. at 233.]

This Court affirmed the trial court’s dismissal of the case with prejudice. Similarly, in the
current case, plaintiff’s attorney did not even ask Gregalit if he currently worked in phlebotomy
or had an active license or certificate in the medical field.

         We also note further concerns about plaintiff’s attorney’s efforts in this matter.
Defendant first filed a motion to strike in November 2012, months before the decision at issue
here. Defendant pointed out that, in contrast to the affidavit of merit, Gregalit was not a licensed
phlebotomist and was an actually an EMT. Even then, apparently, plaintiff’s attorney took no
efforts to consult Gregalit regarding his qualifications, claiming to be ignorant of Gregalit’s
failings until the deposition in August 2013. Surely, at that point, plaintiff’s attorney should
have inquired into Gregalit’s qualifications and quickly realized he was unsuitable. Moreover,
we are unconvinced that it was not until the deposition that plaintiff’s attorney knew about
Gregalit’s shortcomings, given the fact that plaintiff’s attorney produced a new expert witness
the same day as the deposition. Plaintiff’s attorney claims to have begun searching for a new
expert witness before the deposition based on concerns with Gregalit’s mental state.
Simultaneously, however, plaintiff’s attorney claims that Gregalit “duped” him. Plaintiff’s
attorney’s attempts to explain Gregalit’s shortcomings as both duplicitous and due to mental
incompetency are inconsistent and disingenuous. Moreover, our overall impression from
Gregalit’s deposition was that Gregalit was not intentionally duplicitous. In fact, Gregalit readily
testified regarding his work history. It is also concerning that, although plaintiff’s attorney
claims, with no evidentiary support, to have sent Gregalit plaintiff’s medical records and other
relevant case information, the enclosure letter sent to Gregalit listed the only attachment as the
prepared affidavit of merit, and Gregalit stated at the deposition that he did not review or receive
the medical records.3



3
  We acknowledge that during the deposition Gregalit also states that he was unsure if he
received additional documents with the affidavit of merit. However, our overall impression of
the deposition testimony was that Gregalit did not receive or review the records. At one point,
Gregalit said that he specifically told plaintiff’s attorney he did not want to review “X-rays or
CAT scans,” because it was “out of my realm, my scope of practice and knowledge.” Despite
that, plaintiff’s attorney included in the affidavit specifics regarding plaintiff’s damages, of
which Gregalit admittedly had no knowledge or expertise.


                                                -4-
         Finally, we note that we do not disagree with the trial court’s finding that plaintiff’s
attorney did not intentionally defraud the court. However, the inquiry is whether plaintiff’s
attorney had a reasonable belief. MCL 600.2912d(1). Even assuming plaintiff’s attorney did not
purposefully defraud the court, he completely neglected to perform any inquiry into the
qualification of Gregalit before submitting the affidavit of merit or within any reasonable amount
of time thereafter. Thus, the trial court erred when it implicitly determined that the affidavit
fulfilled the statutory requirements, and, thus, abused its discretion in denying plaintiff’s motion
to strike the affidavit of merit.

        Defendant next argues that the trial court erred in allowing plaintiff to substitute a
corrected affidavit of merit. Instead, defendant asserts, the trial court should have dismissed the
case. We agree that the trial court should have dismissed the case based on the defective
affidavit of merit. In addition, we do not believe that plaintiff should have been permitted to
amend his affidavit of merit to comply with the statutory requirements.

        Again, questions of statutory interpretation are reviewed de novo. Ligons, 490 Mich at
70. This Court interprets court rules “using the same principles that govern the interpretation of
statutes.” Id. at 70. “This Court reviews a trial court’s decision to permit a party to amend
pleadings for an abuse of discretion.” In re Estate of Kostin, 278 Mich App 47, 51; 748 NW2d
583 (2008). “[A]n abuse of discretion occurs when the trial court’s decision is outside the range
of reasonable and principled outcomes.” Id.

       Our Supreme Court has stated that “a plaintiff’s failure to file a timely [affidavit of merit]
or to file a timely [affidavit of merit] that satisfies the requirements of MCL 600.2912d(1)
generally results in dismissal of the case.” Ligons, 490 Mich at 75. However, MCR
2.112(L)(2)(b) provides that “[a]n affidavit of merit or meritorious defense may be amended in
accordance with the terms and conditions set forth in MCR 2.118 and MCL 600.2301.” MCR
2.118(A)(1) states that “[a] party may amend a pleading once as a matter of course within 14
days after being served with a responsive pleading by an adverse party, or within 14 days after
serving the pleading if it does not require a responsive pleading.” Otherwise, a party “may
amend a pleading only by leave of the court or by written consent of the adverse party. Leave
shall be freely given when justice so requires.” MCR 2.118(A)(2) (emphasis added). In turn,
MCR 2.118(D) provides:

                An amendment that adds a claim or defense relates back to the date of the
       original pleading if the claim or defense asserted in the amended pleading arose
       out of the conduct, transaction, or occurrence set forth, or attempted to be set
       forth, in the original pleading. In a medical malpractice action, an amendment of
       an affidavit of merit or affidavit of meritorious defense relates back to the date of
       the original filing of the affidavit. [Emphasis added.]

MCL 600.2301 provides:

              The court in which any action or proceeding is pending, has power to
       amend any process, pleading or proceeding in such action or proceeding, either in
       form or substance, for the furtherance of justice, on such terms as are just, at any
       time before judgment rendered therein. The court at every stage of the action or

                                                -5-
       proceeding shall disregard any error or defect in the proceedings which do not
       affect the substantial rights of the parties. [Emphasis added.]

        Assuming plaintiff’s motion to file a new affidavit of merit was effectively a motion to
file an amended affidavit of merit,4 our inquiry rests on whether defendant’s substantial rights
would be affected by allowing plaintiff to amend his affidavit of merit. MCL 600.2301.
Recently, this Court has considered the meaning of substantial rights in relation to a medical
malpractice action in Furr v McLeod, 304 Mich App 677; 848 NW2d 465 (2014). “The
language in MCL 600.2301 requiring a court to disregard ‘any’ errors or defects if no substantial
rights are affected plainly and unambiguously reaches both content and noncontent errors or
defects, as the term ‘any’ is all-inclusive.” Id. at 702-703. The Court stated:

               Our construction of MCL 600.2301 is consistent with earlier Supreme
       Court precedent, which emphasized that the statute aims to abolish technical
       errors in proceedings and to have cases disposed of as nearly as possible in
       accordance with the substantial rights of the parties. [Id. at 702 (citations and
       quotation marks omitted).]

The Court then went on to define and explain the meaning of substantial rights:

       Generally speaking, an error or defect affects substantial rights when a party
       incurs prejudice. See Black’s Law Dictionary (7th ed), p 1324 (A “substantial
       right” is “[a]n essential right that potentially affects the outcome of a lawsuit and
       is capable of legal enforcement and protection, as distinguished from a mere
       technical or procedural right.”) The second sentence in MCL 600.2301 requires a
       court to ask whether the error or defect affects substantial rights. The issue boils
       down to whether the party was deprived of any consequential legal benefit or
       opportunity or was otherwise harmed because of the error or defect. [Id. at 704
       (citations omitted).]

“It is necessary to examine the nature of a statutory error or defect and the legislative goal of a
statute in order to determine whether a particular statutory violation affects a party’s substantial
rights.” Id. at 705. “The purpose of the affidavits of merit is to deter frivolous medical
malpractice claims by verifying through the opinion of a qualified health professional that the
claims are valid.” Barnett v Hidalgo, 478 Mich 151, 163-164; 732 NW2d 472 (2007) (citation
omitted).



4
  We note that in the trial court, plaintiff’s motion was technically a motion to file a new affidavit
of merit, not to amend the affidavit of merit. However, pursuant to MCR 2.112, the proper
procedure for plaintiff would have been to request to amend the affidavit of merit. We are not
convinced that the label of plaintiff’s motion as a request to file a new affidavit as opposed to
filing an amended affidavit should be dispositive, as defendant suggests. Thus, to ensure proper
and full consideration of the issue on appeal, we treat plaintiff’s motion as a motion to amend the
affidavit of merit.


                                                 -6-
         We conclude that defendant’s substantial rights were affected. The errors in this case
reach beyond technical errors in the proceedings. After reviewing the record, we cannot say that
plaintiff attempted, in good faith, to comply with statutory requirements for an expert witness.
Plaintiff filed his complaint in October 2012, and concerns regarding the affidavit of merit were
raised as early as November 2012. As discussed, supra, it does not appear that at the time of
filing the complaint plaintiff’s attorney even attempted to comply with the statutory requirements
of MCL 600.2912d. Despite this, the parties commenced months of discovery, which
necessitated numerous motions to compel by defendant, only to determine that the affidavit of
merit was based on numerous falsities and statutory violations, which related to the qualification
of the expert but also arguably to the merits of the case. The trial court acknowledged that the
delay was caused by plaintiff. By this time, months had passed in the proceedings, and it was
still unclear whether plaintiff had a legitimate claim because of plaintiff’s numerous and
inexcusable statutory violations. Thus, defendant was unable to properly prepare to defend
against plaintiff’s claim. Therefore, we cannot say that defendant has suffered no prejudice or
harm because of plaintiff’s multiple statutory violations, and defendant’s substantial rights were
affected. Accordingly, the case should be dismissed. Ligons, 490 Mich at 75. In addition,
“dismissal must be without prejudice unless other grounds for the dismissal exist, such as the
expiration of the limitations period.” Id.

        Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction. Defendant, the prevailing party, may tax costs. MCR 7.219.

                                                            /s/ Karen M. Fort Hood
                                                            /s/ Kathleen Jansen
                                                            /s/ Michael F. Gadola




                                               -7-
