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Court limits family of girl injured at birth to three causation experts

Alicia Day sued several nurses, Jeannie L. Rowe, D.O., John M. Murphy, M.D., and Blue Water Obstetrics on behalf of her infant daughter.  Day claims that McKenzie, her daughter, suffered permanent neurological damages after a delay in delivery following placental abruption.  Under Michigan's complicated medical malpractice law, Day's attorneys must call as experts separate individuals with qualifications duplicating the qualifications of each health care provider who contributed to the poor outcome.  The Day family must also provide expert testimony tying each breach of the standard of care to the poor result.  In order to satisfy these obligations, the family's attorneys argued that they needed relief from the trial court's order arbitrarily limiting them to three causation witnesses.  The Court of Appeals' decision was predictable, unfortunately, when the family drew a panel of three judges including Henry Saad and Kirsten F. Kelly.  The latter are judges dedicated to the defeat of consumer and personal injury claims.

On appeal the Court held that the Days would be limited to three causation experts--not only at the trial stage, but apparently even at the discovery stage.  A Michigan statute limits a litigant to three expert witnesses on any given issue, EXCEPT that if "more than three witnesses are needed on an issue, the statute poses no barrier to an appropriate exercise of the trial court's discretion."  Not surprisingly, given its composition, the panel concluded that the Days had not met their burden of demonstrating the need to list more than three potential causation experts, despite the complicated setting of the case and proofs.

Note that each of the individual malpractice defendants will be allowed to list and call three causation experts in opposition to the Day family's claim.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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