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Doctor's testimony is "inconsistent" and "contradictory," but still results in favorable jury verdict and sanctions against malpractice claimant; victim can't introduce evidence of alleged falsity arising out of subsequent surgery

Brian Beard sued James Horton, Jr., D.O. and Hastings Orthopaedic Clinic for malpractice.  It was undisputed that Horton severed a nerve in Beard's wrist while performing carpal tunnel surgery, and Beard claimed that Horton's management of the surgery rendered his hand permanently disabled.  He argued that Horton was not qualified to repair the nerve, that Horton falsely claimed to have made the repair in his operative note, and that the doctor's testimony was so contradictory and inconsistent as to render a jury verdict in the doctor's favor "against the great weight of the evidence."

The trial judge denied Beard's request for a new trial.  It also refused to overturn the verdict after Beard presented evidence from Beard's subsequent wrist repair surgery which Beard alleged would demonstrate that Horton's claims of nerve repair during surgery were false.  Finally, the judge also awarded sanctions against Beard for the cost of the trial because Beard had rejected the proposed Case Evaluation award.

On appeal, the Court of Appeals rejected all of Beard's arguments.  It held that he could not rely upon the evidence from his subsequent repair surgery to overturn the verdict because he could have effected the surgical repair before trial--in which case he would have been aware of the evidence that allegedly supported his fraud claim in time to present it at trial. It also noted that there was no basis for denying sanctions after a jury verdict "in the interests of justice" or because Defendant's trial claims diverged from the defenses Horton had originally offered at Case Evaluation.

The Court ruled that even though "there were apparent inconsistencies and discrepancies with Dr. Horton's testimony" it was not so patently incredible that it could not be believed.  It noted that while his testimony regarding the suture used to effect the repair was "objectively false," and while his testimony regarding the retraction of nerve endings was "seemingly contradictory," his testimony was not inherently incredible or contrary to physical reality.  Even Plaintiff's "strongest argument" arising out of Horton's testimony regarding the extent of damage (he "did indeed change his testimony" according to the court) did not constitute a basis for overturning the verdict and ordering a new trial, according to the court.

The Court also rejected Beard's claim that multiple discovery abuses by the defendants should warrant entry of a default judgment, because Beard had not asked the court for a default and therefore he had "invited error." The Defendant's claim of privilege in response to Beard's discovery requests regarding video surveillance, and defendant's failure to identify the surveillance evidence in response was not grounds for reversal because Beard's attorney did not challenge the Defendant's non-responsive answers.  Similarly, the claim that the judge slept through periods of the trial (a claim supported by  an affidavit from the jury foreman, apparently) could not constitute grounds for appeal because the attorney did not object to the sleeping judge at the time--and furthermore, the judge denied that he was actually sleeping.

The appellate court also upheld the trial judge's refusal to allow Beard's attorney to present the testimony of one of Horton's retained expert physicians in rebuttal, to repudiate the surprising new defense offered by Horton at trial.  The Court concluded that the evidence the retained defense expert would have provided was "largely cumulative" and could have been presented in Beard's case-in-chief.

Only in defense of a claim of medical malpractice, and perhap only in Michigan, can a litigant abuse discovery procedures and provide objectively false or inconsistent defenses and testimony, and still successfully prevail at trial and win sanctions against the alleged victim.  We suspect Mr. Beard would not provide a ringing endorsement of the quality of justice in Michigan.


Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
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