Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  May 16, 2018                                                                      Stephen J. Markman,
                                                                                               Chief Justice

  154622                                                                                  Brian K. Zahra
                                                                                  Bridget M. McCormack
                                                                                        David F. Viviano
                                                                                    Richard H. Bernstein
                                                                                         Kurtis T. Wilder
  PATRICIA MERCHAND,                                                               Elizabeth T. Clement,
            Plaintiff-Appellee,                                                                     Justices

  v                                                      SC: 154622
                                                         COA: 327272
                                                         Ingham CC: 12-001343-NH
  RICHARD L. CARPENTER, M.D.,
            Defendant-Appellant,
  and
  MID-MICHIGAN EAR, NOSE,
  AND THROAT, P.C.,
             Defendant.
  _________________________________________/

         On March 6, 2018, the Court heard oral argument on the application for leave to
  appeal the August 2, 2016 judgment of the Court of Appeals. On order of the Court, the
  application is again considered. MCR 7.305(H)(1). In lieu of granting leave to appeal,
  we REVERSE the judgment of the Court of Appeals and REMAND this case to that
  court for consideration of the other evidentiary challenges raised by plaintiff but not
  addressed by that court in its initial review of this case.

           In this case, plaintiff filed suit alleging that defendant committed medical
  malpractice during surgery by negligently injuring her right hypoglossal nerve. After a
  trial, the jury found defendant not professionally negligent, and the trial court entered a
  judgment of no cause of action. Plaintiff appealed, challenging, among other things, the
  trial court’s ruling prohibiting plaintiff from presenting testimony from her expert
  witness, Dr. Michael Morris, regarding parallels between defendant’s recordkeeping in
  the instant case and his recordkeeping in other cases in which he had been sued for
  malpractice. In an offer of proof, Dr. Morris opined that in the other cases, like in the
  instant case, defendant failed to record complications that arose during surgery or related
  patient complaints. Dr. Morris also opined on the accuracy of defendant’s surgical
  methods and about other instances of defendant’s alleged malpractice.

         The Court of Appeals majority reversed the trial court and remanded for a new
  trial, holding that Dr. Morris’ testimony was admissible under MRE 404(b) to
  demonstrate defendant’s scheme, plan, or system of creating medical records that did not
  accurately reflect his interactions with patients when surgeries resulted in complications.
  But as the dissenting judge recognized, plaintiff never argued in the trial court that this
                                                                                                               2


evidence was admissible for a proper purpose under MRE 404(b). Merchand v
Carpenter, unpublished per curiam opinion of the Court of Appeals, issued August, 2,
2016 (Docket No. 327272), pp 2-3 n 3 (O’BRIEN, J., dissenting). The proponent of the
evidence has the burden of establishing a proper, noncharacter purpose for its admission
under MRE 404(b). See People v Denson, 500 Mich 385, 398 (2017). Because plaintiff
here failed to make a cognizable argument under MRE 404(b) before the trial court, any
failure to admit this evidence on that basis would not amount to an abuse of discretion.
Rock v Crocker, 499 Mich 247, 255 (2016) (“A trial court does not abuse its discretion
when its decision falls within the range of principled outcomes.”). Therefore, we reverse
the Court of Appeals’ judgment and remand to that court for consideration of the other
evidentiary challenges raised by plaintiff but not previously addressed.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         May 16, 2018
       t0509
                                                                             Clerk
