MSC: Motion To Amend Witness List Controlled By MCR 2.401, Dean Factors “Could Be” Relevant
The Michigan Court of Appeals incorrectly held that a trial court had to consider the factors in Dean v Tucker when assessing a party’s motion to amend its witness list, the Michigan Supreme Court has ruled in a unanimous decision.
Rather, the correct standard is set forth in MCR 2.401(I)(2), the high court held in Estate of Harris v Beaumont Health, et al. (Docket Nos. 167716 and 167720). MCR 2.401(I)(2) says that a “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.”
In Dean v Tucker, 182 Mich App 27 (1990), the Court of Appeals established eight factors to help trial courts determine appropriate sanctions when there is a failure to comply with discovery or witness list requirements. Those factors include:
whether the violation was willful or accidental.
the party’s history of refusing to comply with discovery requests or disclose witnesses.
the prejudice to the other party.
notice to the other party of the witness and how long before trial notice was received.
whether the party engaged in deliberate delay.
the party’s compliance with other provisions of the court’s order.
any attempt by the party to timely cure the defect.
whether a lesser sanction would better serve the interests of justice.
In the present case, the plaintiff, as personal representative of the decedent’s estate, filed a medical-malpractice action against the defendants in Oakland County Circuit Court. The claim was supported by an affidavit of merit from Dr. Bal, an orthopedic specialist. When Dr. Bal became “unavailable” for deposition, the plaintiff filed an amended witness list naming Dr. Hall as its orthopedic expert. The witness list was filed without the trial court’s permission, after which the trial court chastised the plaintiff for filing the list rather than filing a motion to amend it. The defendants objected, claiming they were still entitled to depose Dr. Bal. The defendants also maintained the plaintiff had replaced Dr. Bal with Dr. Hall because the plaintiff discovered that Dr. Bal was not qualified to sign the affidavit of merit, due to the fact that he had been retired for some time. The trial court subsequently denied the plaintiff’s motion to file an amended witness list and ultimately dismissed the plaintiff’s med-mal claims.
On appeal, the Michigan Court of Appeals vacated the trial court’s orders (Docket No. 365062). “The trial court abused its discretion when it denied plaintiff’s motion for leave to file an amended witness list because it resulted in an effective dismissal of the case and the trial court did not consider the Dean factors,” the appellate panel said. The defendants appealed.
The Michigan Supreme Court reversed in part and remanded the case.
“[W]e conclude that the Court of Appeals erred by holding that a trial court must consider the Dean factors when evaluating a party’s motion to amend its witness list,” the high court said in an opinion written by Justice Brian K. Zahra. “While such factors could be relevant, the primary considerations for a trial court in assessing such a motion are (1) the diligence of the moving party and (2) the prejudice that either side would incur from granting or denying the motion.”
The correct standard “is set forth in MCR 2.401(I)(2),” the justices said. “Nonetheless, we agree with the Court of Appeals that the [trial] court erred by granting summary disposition because its ruling was predicated on the court’s flawed decision denying plaintiff’s motion to amend her witness list to add an expert witness. We remand this case to the [trial] court for further proceedings ….”
‘Good Cause’
In its analysis, the Michigan Supreme Court scrutinized MCR 2.401(I). The justices explained that MCR 2.401(I)(1) requires parties to file and serve witness lists “[n]o later than the time directed by the court” in its scheduling order, and that MCR 2.401(I)(2) says a 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.”
Good cause “is a ‘satisfactory, sound or valid reason,’” the high court noted.
“We conclude that MCR 2.401(I)(2) is stated in plain terms and that there is no basis to depart from the plain language of the court rule,” the Michigan Supreme Court said. “The court rule properly focuses the trial court’s attention on the adequacy of the party’s explanation of ‘good cause’ along with a ‘showing’ that the party’s conduct supports this explanation, such as diligent efforts to mitigate prejudice to the other parties.”
Meanwhile, “several published decisions from the Court of Appeals support this understanding,” the justices observed, pointing out the “most apt of these cases” is Tisbury v Armstrong, 194 Mich App (1991), in addition to Levinson v Sklar, 181 Mich App 693 (1989), and the more recent decision in Cox v Hartman, 322 Mich App 292 (2017). “From these decisions, we glean some basic considerations that are significant to a ‘good cause’ analysis,” the high court said. “With regard to a party’s diligence, such considerations include the timeliness of a party’s motion to amend its witness list after discovering the unavailability of a witness; the absence of repeated previous delays; whether the discovery period has concluded; the effect on mediation (i.e., case evaluation); and whether the party was made aware of a need to obtain another witness.”
Further, “as Tisbury recognized, whether the party making the request may be prejudiced by denial of the motion is also relevant in assessing whether there is ‘good cause’ to grant a motion to amend,” the Michigan Supreme Court explained. “We note that these considerations are basic generalities that may be supplemented by relevant caselaw, but we cite them to demonstrate how application of the Dean factors is not an appropriate standard to evaluate a party’s motion to amend a witness list.”
Next, the justices looked at the Dean factors and the caselaw supporting those factors. “Unlike MCR 2.401(I)(2), which allows the court to prohibit a witness from testifying if they are not listed in accordance with the court rule, MCR 2.313(B), which addresses the failure to comply with orders compelling disclosure or discovery, expressly lists a host of varying sanctions that the court may consider. As a standard for determining sanctions, it makes sense that the Dean factors primarily focus on the moving party’s actions and any history of misconduct during the litigation.”
However, a trial court’s application of the Dean factors to a motion to amend a witness list “does not focus on the most relevant considerations of that inquiry, such as whether the initial expert had been deposed, whether discovery had ended, whether a party filed a motion to amend a witness list before the opposing party filed a dispositive motion relating to the expert, whether a party chose to litigate their expert’s qualifications, and whether either party would be prejudiced by granting or denying the motion,” the Michigan Supreme Court said. “Indeed, five of the eight Dean factors focus on the moving party’s sanctioned misconduct and history of misconduct during the litigation, which was not the focus in any of the above-cited cases that address amending a witness list under the applicable ‘good cause’ standard.”
And although the Court of Appeals “did not reach the merits” of the trial court’s denial of the plaintiff’s motion to amend the witness list, “we conclude that the [trial] court abused its discretion under the ‘good cause’ standard that it purported to apply,” the Michigan Supreme Court said. “The emphasis of the ‘good cause’ standard is on a party’s diligence in securing a witness and on prejudice to either side.”
Further, the trial court’s “passing remark” that if the plaintiff had been diligent, the proposed expert witness “would have been deposed ‘much sooner’ … does not appreciate that much of the delay … was prompted by defendants’ attempt to establish that Dr. Bal’s [affidavit of merit] was invalid,” the high court noted. “The trial court’s terse statement that defendants would be prejudiced by granting the motion is similarly problematic. As noted, generally, the type of prejudice relevant to this inquiry occurs from the additional unnecessary expense incurred due to the moving party’s failure to use due diligence. Moreover, the trial court’s prejudice assessment was seemingly based on its mistaken belief that discovery was closed when plaintiff filed the motion to amend, when in fact it was still open for another five months.”
Therefore, because the trial court’s “decision granting summary disposition was predicated on its erroneous decision denying plaintiff’s motion to amend her witness list to add an expert witness, which resulted in plaintiff’s failure to establish her claim, we conclude that summary disposition was prematurely granted,” the Michigan Supreme Court held.
