MSC 124994 JOHANNA WOODARD V JOSEPH R CUSTER MD Non-Dispositive Opinion 07/12/2005

______________________________________
Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Opinion Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED July 12, 2005
JOHANNA WOODARD, Individually and as
Next Friend of AUSTIN D. WOODARD,
a Minor, and STEVEN WOODARD
Plaintiffs-Appellees,
and Cross-Appellants
v No. 124994
JOSEPH R. CUSTER, M.D.,
Defendant-Appellant,
and Cross-Appellee
and
MICHAEL K. LIPSCOMB, M.D.,
MICHELLE M. NYPAVER, M.D., and
MONA M. RISKALLA, M.D.,
Defendants.
JOHANNA WOODARD, Individually and as
Next Friend of AUSTIN D. WOODARD,
a Minor, and STEVEN WOODARD,
Plaintiffs-Appellees
and Cross-Appellants,
v No. 124995
UNIVERSITY OF MICHIGAN MEDICAL
CENTER,
Defendant-Appellant
and Cross-Appellee.

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______________________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
The question presented to this Court is whether expert
testimony is necessary in the circumstances of this case.
We conclude that it is.
I. F ACTS AND PROCEDURAL HISTORY
Plaintiffs’ fifteen-day-old son was admitted to the
Pediatric Intensive Care Unit (PICU) at the University of
Michigan Hospital, where he was treated for a respiratory
problem. During his stay in the PICU, he was under the
care of Dr. Joseph R. Custer, the Director of Pediatric
Critical Care Medicine. When the infant was moved to the
general hospital ward, physicians in that ward discovered
that both of the infant’s legs were fractured. Plaintiffs
sued Dr. Custer and the hospital, alleging that the
fractures were the result of negligent medical procedures,
namely, the improper placement of an arterial line in the
femoral vein of the infant’s right leg and the improper
placement of a venous catheter in the infant’s left leg.
Defendant physician is board-certified in pediatrics
and has certificates of special qualifications in pediatric
critical care medicine and neonatal-perinatal medicine.
Plaintiffs’ proposed expert witness, who signed plaintiffs’
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affidavit of merit, is board-certified in pediatrics, but
does not have any certificates of special qualifications.
Before discovery, the trial court denied defendants’
motion for summary disposition, concluding that plaintiffs’
attorney had a “reasonable belief” under MCL 600.2912d(1)
that plaintiffs’ proposed expert witness was qualified
under MCL 600.2169 to testify against the defendant
physician, and, thus, that plaintiffs’ affidavit of merit
was sufficient. After discovery, the trial court granted
defendants’ motion to strike plaintiffs’ expert witness on
the basis that he was not actually qualified under MCL
600.2169 to testify against the defendant physician. The
trial court dismissed plaintiffs’ claim with prejudice,
concluding that plaintiffs could not reach a jury without
expert testimony.
The Court of Appeals affirmed the trial court’s ruling
that plaintiffs’ proposed expert witness was not qualified
under MCL 600.2169 to testify against the defendant
physician (Judge Borrello dissented on this issue), but
reversed the trial court’s dismissal on the basis that
expert testimony was unnecessary under the doctrine of res
ipsa loquitur, i.e., an inference of negligence may be
drawn from the fact that the infant was admitted to the
PICU with healthy legs and discharged from the PICU with
fractured legs (Judge Talbot dissented on this issue).
3

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Unpublished opinion per curiam, issued October 21, 2003
(Docket Nos. 239868-239869). The case was remanded for
trial.
Defendants sought leave to appeal the Court of Appeals
decision that res ipsa loquitur applies and that expert
testimony was not necessary. Plaintiffs sought leave to
cross-appeal the Court of Appeals decision that their
proposed expert witness was not qualified under MCL
600.2169 to testify against the defendant physician. We
heard oral argument on whether to grant the applications or
take other peremptory action permitted by MCR 7.302(G)(1).
471 Mich 890. We have granted plaintiffs’ application for
leave to appeal as cross-appellants.1 In this opinion, we
address only defendants’ application for leave to appeal.
1 That order states:
On December 9, 2004, the Court heard oral
argument on defendants’ application for leave to
appeal the October 21, 2003, judgment of the
Court of Appeals and plaintiffs’ cross-
application for leave to appeal. Plaintiffs’
cross-application for leave to appeal is again
considered and it is GRANTED. The parties are
directed to include among the issues to be
briefed: (1) what are the appropriate definitions
of the terms “specialty” and “board certified” as
used in MCL 600.2169(1)(a); (2) whether either
“specialty” or “board certified” includes
subspecialties or certificates of special
qualifications; (3) whether MCL 600.2169(1)(b)
requires an expert witness to practice or teach
the same subspecialty as the defendant; (4)
whether MCL 600.2169 requires an expert witness
(continued…)
4

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II. S TANDARD OF REVIEW
This Court reviews de novo decisions on summary
disposition motions. Grossman v Brown, 470 Mich 593, 598;
685 NW2d 198 (2004).
III. A NALYSIS
Plaintiffs argue that expert testimony is unnecessary
in this case because of the doctrine of res ipsa loquitur.
In a medical malpractice case, the plaintiff must
establish:
(1) the applicable standard of care, (2)
breach of that standard of care by the defendant,
(3) injury, and (4) proximate causation between
the alleged breach and the injury. [Locke v
Pachtman, 446 Mich 216, 222; 521 NW2d 786
(1994).]
(…continued)
to match all specialties, subspecialties, and
certificates of special qualifications that a
defendant may possess, or whether the expert
witness need only match those that are relevant
to the alleged act of malpractice. See Tate v
Detroit Receiving Hosp, 249 Mich App 212 (2002);
and (5) what are the relevant specialties,
subspecialties, and certificates of special
qualifications in this case.
The American Osteopathic Association’s
Bureau of Osteopathic Specialists, the
Accreditation Council for Graduate Medical
Education, and the Council of Medical Specialty
Societies are invited to file briefs amicus
curiae. Other persons or groups interested in
the determination of the questions presented in
this case may move the Court for permission to
file briefs amicus curiae. [473 Mich ___
(2005).]
5

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See MCL 600.2912a. Generally, expert testimony is required
in medical malpractice cases. Locke, supra at 230.
This Court has long recognized the
importance of expert testimony in establishing a
medical malpractice claim, and the need to
educate the jury and the court regarding matters
not within their common purview. . . . While we
have recognized exceptions to this requirement,
the benefit of expert testimony, particularly in
demonstrating the applicable standard of care,
cannot be overstated. [Id. at 223-224.]
However, if a medical malpractice case satisfies the
requirements of the doctrine of res ipsa loquitur, then
such case may proceed to the jury without expert testimony.
Id. at 230. Res ipsa loquitur is a Latin term meaning,
“[t]he thing speaks for itself.” Black’s Law Dictionary
(6th ed).2
[R]es ipsa loquitur . . . entitles a
plaintiff to a permissible inference of
negligence from circumstantial evidence.
The major purpose of the doctrine of res
ipsa loquitur is to create at least an inference
of negligence when the plaintiff is unable to
prove the actual occurrence of a negligent
act. . . .
In a proper res ipsa loquitur medical case,
a jury is permitted to infer negligence from a
result which they conclude would not have been
reached unless someone was negligent. [Jones v
2 “Res ipsa loquitur” is the “[r]ebuttable presumption
or inference that defendant was negligent, which arises
upon proof that the instrumentality causing injury was in
defendant’s exclusive control, and that the accident was
one which ordinarily does not happen in absence of
negligence.” Id.
6

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Porretta, 428 Mich 132, 150, 155-156; 405 NW2d
863 (1987).]
In order to avail themselves of the doctrine of res ipsa
loquitur, plaintiffs must meet the following conditions:
“(1) the event must be of a kind which
ordinarily does not occur in the absence of
someone’s negligence;
(2) it must be caused by an agency or
instrumentality within the exclusive control of
the defendant;
(3) it must not have been due to any
voluntary action or contribution on the part of
the plaintiff”; and
(4) “[e]vidence of the true explanation of
the event must be more readily accessible to the
defendant than to the plaintiff.” [Id. at 150-
151 (citations omitted).]
With regard to the first condition, this Court has
held that “the fact that the injury complained of does not
ordinarily occur in the absence of negligence must either
be supported by expert testimony or must be within the
common understanding of the jury.” Locke, supra at 231.
In this case, whether a leg may be fractured in the absence
of negligence when placing an arterial line or a venous
catheter in a newborn’s leg is not within the common
understanding of the jury, and, thus, expert testimony is
required. That is, plaintiffs needed to produce expert
testimony to support their theory that the infant’s
injuries were not the unfortunate complication of a
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reasonably performed medical procedure. As this Court
explained in Jones, supra at 154:
[I]n a normal professional negligence case,
a bad result, of itself, is not evidence of
negligence sufficient to raise an issue for the
jury. . . . Something more is required, be it
the common knowledge that the injury does not
ordinarily occur without negligence or expert
testimony to that effect.
In a case where there is no expert evidence
that “but for” negligence this result does not
ordinarily occur, and in which the judge finds
that such a determination could not be made by
the jury as a matter of common understanding, a
prima facie case has not been made, and a
directed verdict is appropriate.
Whether, “but for” negligence, the newborn’s legs
would not have been fractured is not a determination that
can be made by the jury as a matter of common
understanding. As the trial court explained:
Whether the fractures could have occurred in
the absence of someone’s negligence is an
allegation that must be supported by expert
testimony; the procedures [the infant] underwent
are not within the common knowledge of a
reasonably prudent jury. Furthermore, whether
fractures of the kinds suffered by [the infant]
are possible complications arising from the types
of procedures performed during [his] stay at the
Pediatric ICU is knowledge that is exclusively
within the expertise of the medical profession.
And, as Judge Talbot in dissent in the Court of Appeals
explained, “[a]ssuming that the fractures may have been
caused by the placement of the lines in the infant’s legs,
the risks associated with the placement of arterial lines
or venous catheters in a newborn infant, and whether
8

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fractures ordinarily do not occur in the absence of
negligence, are not within common knowledge of a reasonably
prudent fact finder.” Slip op at 9. Because we do not
know whether the injury complained of does not ordinarily
occur in the absence of negligence, we cannot properly
apply the doctrine of res ipsa loquitur.
Plaintiffs argue that, even if res ipsa loquitur does
not apply, expert testimony is not required because the
alleged negligence was within the common understanding of
the jury. For the same reason that we conclude that res
ipsa loquitur does not apply here—whether a leg may be
fractured in the absence of negligence when placing an
arterial line or a venous catheter in a newborn’s leg is
not within the common understanding of the jury—we conclude
that this latter exception to the requirement of expert
testimony also does not apply.3
3 Our dissenting colleagues criticize us for deciding
defendants’ application for leave to appeal separately from
plaintiffs’ cross-application for leave to appeal.
However, it is only logical to determine whether expert
testimony is required, the issue raised in defendants’
application for leave to appeal, before determining whether
plaintiffs’ proposed expert is qualified to testify, the
issue raised in plaintiffs’ cross-application for leave to
appeal. If we were to determine that expert testimony was
not required, there would be no need to determine whether
plaintiffs’ expert is qualified to testify. Because we
have determined in this opinion that expert testimony is
required, we must next determine whether plaintiffs’
proposed expert is qualified to testify. Because of the
complexities and the importance of the latter issue, we
(continued…)
9

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IV. C ONCLUSION
Expert testimony is required because whether a leg may
be fractured in the absence of negligence when placing an
arterial line or a venous catheter in a newborn’s leg is
not within the common understanding of a jury. We have
granted plaintiffs’ application for leave to appeal as
cross-appellants, and will determine whether plaintiffs’
expert is qualified, within the meaning of MCL 600.2169, to
testify against the defendant physician. Accordingly,
while we now hold that this case cannot proceed to a jury
on a res ipsa loquitur theory, the entry of final judgment
in this case must await our determination of the expert-
qualification issue.4
Stephen J. Markman
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
(…continued)
have granted plaintiffs’ cross-application for leave to
appeal. However, because we have already reached a
decision on the former issue, and because we believe that
the Court of Appeals erred in its analysis of the res ipsa
loquitur doctrine, we issue our opinion on this former
issue today.
4 Justice Cavanagh concludes that “the trial court
abused its discretion in not granting plaintiffs’ motion
for an extension of time to add a new expert witness.”
Post at 2. Because plaintiffs have not appealed the trial
court’s decision denying plaintiffs’ motion for an
extension of time to add a new expert witness, we do not
address this issue.
10

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S T A T E O F M I C H I G A N
SUPREME COURT
JOHANNA WOODARD, Individually and as
Next Friend of AUSTIN D. WOODARD,
a Minor, and STEVEN WOODARD,
Plaintiffs-Appellees
and Cross-Appellants,
v No. 124994
JOSEPH R. CUSTER, M.D.,
Defendant-Appellant
and Cross-Appellee,
and
MICHAEL K. LIPSCOMB, M.D.,
MICHELLE M. NYPAVER, M.D., and
MONA M. RISKALLA, M.D.,
Defendants.
______________________________________
JOHANNA WOODARD, Individually and as
Next Friend of AUSTIN D. WOODARD,
a Minor, and STEVEN WOODARD,
Plaintiffs-Appellees
and Cross-Appellants,
v No. 124995
UNIVERSITY OF MICHIGAN MEDICAL
CENTER,
Defendant-Appellant
and Cross-Appellee.
CAVANAGH, J. (concurring in part and dissenting in part).
I concur with the majority’s conclusion that expert
witness testimony is necessary in this case because I agree

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that the medical procedures at issue are not within the
common understanding of a jury. I also concur with Justice
Weaver that defendant’s1 appeal and plaintiffs’ cross-appeal
should not be bifurcated, but should be considered and
decided together. Like Justice Weaver, I would have
granted defendant’s application rather than peremptorily
reversing the Court of Appeals. I write separately because
I find that although expert testimony is required in this
case, the trial court abused its discretion in not granting
plaintiffs’ motion for an extension of time to add a new
expert witness.
As noted by the Court of Appeals, some of the
procedural aspects of this case are not definitively clear
on the existing record, which may lead one to question
which of the parties’ multiple motions were the impetus for
the trial court’s ultimate dismissal of plaintiffs’ claims.
After discovery, defendants University of Michigan Medical
Center and Dr. Custer moved to strike plaintiffs’ expert
witness as unqualified. They also moved for summary
disposition under MCR 2.116(C)(10) on other bases,
including allegations that a claim for respondeat superior
did not lie and that plaintiffs’ testimony did not support
a claim for negligent infliction of emotional distress. In
1 The singular “defendant” refers to Joseph R. Custer,
M.D.
2

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response to defendants’ claim that plaintiffs’ expert was
not qualified, plaintiffs alleged that they did not need an
expert witness at all because the matters to be decided
were within the common understanding of a jury.
At the hearing on these motions, the trial court
granted defendants’ motion to strike plaintiffs’ expert,
but did not address whether expert testimony was required.
Defendants then moved to enter an order of dismissal,
presumably because they assumed that an expert was
required. Plaintiffs objected to the order, requested a
determination whether expert testimony was needed, and
moved to “extend time” to add an expert witness. The trial
court determined that expert testimony was necessary,
denied the motion to add an expert, and, as a result,
entered an order dismissing plaintiffs’ claims with
prejudice.
While plaintiffs’ appellate challenges to the trial
court’s dismissal have focused primarily on plaintiffs’
claim that their expert was qualified or, in the
alternative, that expert testimony was not required, the
trial court’s order denying plaintiffs’ motion to add an
expert was inextricably intertwined with its decision to
dismiss the case. In other words, the trial court’s denial
of plaintiffs’ motion to add an expert and its grant of
defendants’ motion to strike plaintiffs’ expert were
3

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equally dispositive of plaintiffs’ claims. Thus, by virtue
of opposing defendants’ application for leave to appeal and
mounting their own challenges to the trial court’s
dismissal, plaintiffs are necessarily, albeit somewhat
indirectly, challenging the trial court’s denial of their
motion to add an expert. Contrary to the majority’s
position, ante at 11 n 4, I believe that the ruling on the
motion to add an expert is fairly encompassed in the issues
this Court is addressing.
Thus, having found that plaintiffs needed expert
witness testimony, I would then find that the trial court
abused its discretion by denying plaintiffs’ motion for an
extension of time to add an expert witness and dismissing
the case with prejudice. A trial court’s decision whether
to allow a plaintiff to add an expert witness is reviewed
for abuse of discretion, as is a trial court’s ruling on
adjournment. See Klabunde v Stanley, 384 Mich 276, 281;
181 NW2d 918 (1970); Tisbury v Armstrong, 194 Mich App 19,
20; 486 NW2d 51 (1992). MCR 2.401(I)(2) states that if a
party fails to list a witness by the time designated by the
trial court, “[t]he 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.” Thus,
in considering a motion to amend a witness list, the trial
court should determine whether the party seeking the
4

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amendment demonstrated good cause. Similarly,
considerations for a motion to adjourn or extend time
include whether the requesting party has sought numerous
past continuances, whether the party has exercised due
diligence, and the “lack of any injustice to the movant.”
Tisbury, supra at 20.
Another important consideration, though, is our legal
system’s preference for disposition of litigation on the
merits. See Wood v Detroit Automobile Inter-Ins Exch, 413
Mich 573, 581; 321 NW2d 653 (1982). Thus, if denying a
motion to extend time to add an expert witness extinguishes
a plaintiff’s cause of action, that factor should be given
due weight. See Dean v Tucker, 182 Mich App 27, 32; 451
NW2d 571 (1990). A trial court should recognize that it
has other, less drastic, measures available to it by which
to ameliorate any inconvenience caused to the opposing
party. Id. For example, the trial court could require the
plaintiff to pay any deposition or other costs, including
attorney fees, associated with the delay caused by the
plaintiff’s failure to timely name the witness. In
addition, the trial court should have carefully weighed the
available options and expressed reasons why dismissal with
prejudice was preferable over other alternatives. Id. at
32-33.
5

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In this case, plaintiffs moved for an extension of
time to add an expert witness directly after the trial
court struck the expert witness that plaintiffs timely
presented. The controversy surrounding plaintiffs’ named
expert pertained to problematic language in MCL 600.2169,
language that this Court had not then, and has not yet,
fully construed. In fact, whether plaintiffs’ original
expert witness was qualified to testify in this case is the
subject of plaintiffs’ yet to be decided cross-appeal. A
look at this Court’s order granting plaintiffs’ cross-
application for leave to appeal, 473 Mich ___ (2005), which
contains a list of unanswered questions regarding what
qualifications an expert witness in a medical malpractice
case must have, is illustrative of the unsettled nature and
complexity of MCL 600.2169.
Clearly, then, there are apparent difficulties in
interpreting exactly what qualifications are required of a
medical malpractice expert witness. Where this Court has
not agreed on the proper construction of the statute,2 and
has expressly left for another day several of the precise
questions at the core of the qualifications debate in this
2 See, e.g., Halloran v Bhan, 470 Mich 572; 683 NW2d
129 (2004), and Grossman v Brown, 470 Mich 593; 685 NW2d
198 (2004).
6

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case,3 a plaintiff who has made a good-faith effort to
satisfy unconstrued statutory criteria should not be
penalized for ostensibly failing to meet the criteria with
the ultimate sanction of dismissal with prejudice.4 Rather,
I would hold that where the trial court determined that the
requirements of MCL 600.2169 had not been met, it should
also have found that plaintiffs demonstrated good cause to
seek additional time to add a new expert. Further, the
court should have found that disposition on the merits
outweighed any prejudice a short delay might have caused
defendants. And as noted, the trial court could still have
maintained sufficient control over its docket by, for
example, setting a deadline by which plaintiffs had to
present their new expert and invoking other measures to
mitigate any harm to defendants.
On that basis alone, I would hold that the trial
court, having found that plaintiffs’ expert did not meet
the criteria contained in the statute, should have granted
3 Halloran, supra at 577 n 5; Grossman, supra at 600 n
7.
4 I make no conclusions regarding whether plaintiffs’
expert was indeed qualified for trial purposes. Because a
majority of this Court insists on deciding this portion of
the case today and the expert witness portion of the case
at a later date, I will assume for purposes of this opinion
that plaintiffs at least had a good-faith belief that their
expert complied with the statutory mandates. This
admittedly awkward position is the direct result of the
majority’s refusal to address these interconnected issues
at the same time.
7

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plaintiffs additional time to procure another expert
instead of dismissing plaintiffs’ claim with prejudice and
permanently depriving plaintiffs of a cause of action.
Because trial was still two months away, any delay would
have been minimal and containable. Plaintiffs had sought
no previous continuances, and their request was not the
result of a lack of due diligence.5
For these reasons, I dissent from the majority opinion
granting peremptory reversal to defendant.
Michael F. Cavanagh
Marilyn Kelly
5 To the extent defendant argues that plaintiffs were
on notice that defendant would challenge their expert’s
qualifications, I find the argument without merit. It is
not unusual for a defendant in a medical malpractice suit
to launch a challenge of that type. And on defendants’
first challenge to the expert, which occurred directly
after plaintiffs filed their complaint and affidavit of
merit, the trial court found that the expert met the
threshold requirements for purposes of the affidavit of
merit. The mere fact that the trial court reserved for a
later date the question whether the expert could offer
trial testimony does not, in my view, compel a finding that
plaintiffs should have automatically sought a replacement
expert at that juncture, as defendant implies.
8

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______________________________________
______________________________________
S T A T E O F M I C H I G A N
SUPREME COURT
JOHANNA WOODARD, Individually and as
Next Friend of AUSTIN D. WOODARD,
a Minor, and STEVEN WOODARD,
Plaintiffs-Appellees
and Cross-Appellants,
v No. 124994
JOSEPH R. CUSTER, M.D.,
Defendant-Appellant
and Cross-Appellee,
and
MICHAEL K. LIPSCOMB, M.D.,
MICHELLE M. NYPAVER, M.D., and
MONA M. RISKALLA, M.D.,
Defendants.
JOHANNA WOODARD, Individually and as
Next Friend of AUSTIN D. WOODARD,
a Minor, and STEVEN WOODARD,
Plaintiffs-Appellees
and Cross-Appellants,
v No. 124995
UNIVERSITY OF MICHIGAN MEDICAL
CENTER,
Defendant-Appellant
and Cross-Appellee.
WEAVER, J. (dissenting).

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While I would likely agree with the majority
conclusion that expert testimony is necessary in the
circumstances of this case, I dissent from the majority
decision, because I would not decide defendants’
application for leave to appeal separately from plaintiffs’
cross-application for leave to appeal and without full
briefing and argument. Plaintiffs’ cross-application was
granted at 473 Mich ___ (2005).
Elizabeth A. Weaver
2

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