Gibson v. Henkin
Gibson v. Henkin
Opinion of the Court
Plaintiffs appeal as of right from a June 14, 1983, judgment that orders that plaintiffs take nothing in this medical malpractice case because a jury found no cause of action against the defendants and that plaintiffs pay defendants their costs and charges. The trial court denied plaintiffs’ motion for new trial on June 14, 1983. We affirm.
Plaintiffs raise two issues on appeal, both properly preserved and addressed in their motion for new trial.
First, plaintiffs argue that the trial court erred by granting defendants’ motion in limine. Defendants moved to limit the scope of plaintiffs’ cross-examination of their only expert witness, Dr.
The trial court granted the motion, finding the above potential testimony for purposes of cross-examination for impeachment of credibility more prejudicial than probative, MRE 403, and that any reference to insurance was prohibited.
The scope and duration of cross-examination of witnesses rests in the trial court’s sound discretion and exercise of that discretion will not be reversed by this Court absent a clear showing of abuse. Wilson v Stilwell, 411 Mich 587, 599; 309 NW2d 898 (1981); MRE 611(b). However, it is generally permissible to cross-examine an adverse witness to elicit from him or her any fact or circumstance that tends to show that witness’s relationship with, feelings toward, bias, prejudice, or interest for or against either party. Hayes v Coleman, 338 Mich 371, 381; 61 NW2d 634 (1954); Wilson v Stilwell, supra, p 599.
In this case, we find that the trial court did
Although we find that the trial court erred in part by granting defendants’ motion in limine, we do not find that the error mandates reversal. We recognize that each party presented only one expert witness and, therefore, this case presented a battle of the experts’ credibility. Wilson v Stilwell, supra, p 599. Nevertheless, the trial court otherwise gave plaintiffs the opportunity to freely impeach Dr. Scratch’s credibility, an opportunity plaintiffs did take.
Plaintiffs next argue that the trial court erred by instructing the jury that no physician is required to guarantee results. The trial court read SJI2d 30:01 to the jury regarding professional negligence or malpractice. In addition, the trial court also instructed as follows pursuant to defendants’ request:
"The difficulties and uncertainties in the practice of medicine are such that no one can be required to*473 guarantee results and all the law demands is that the individuals involved bring and apply to the case at hand that degree of skill, care, knowledge and attention ordinarily possessed and exercised by practitioners of the medical profession under like circumstances.
"The mere fact that an adverse result may occur following medical treatment is not, in itself, any evidence of negligence.”
Plaintiffs correctly argue that they neither pleaded a contract or guaranty theory nor argued such a theory at trial. Plaintiffs further argue that by giving such an instruction the jury was misled to plaintiffs’ prejudice. Plaintiffs also assert that by implication GCR 1963, 516.6(4) mandates that if a standard jury instruction adequately covers the law in the case the trial court shall not give additional instructions. We first recognize that there is now a conflict in this Court regarding this issue. In Warfield v Wyandotte, 117 Mich App 83, 93-94; 323 NW2d 603 (1982), lv den 417 Mich 919 (1983), a panel of this Court found the guarantor instruction a correct statement of the law and not improper if not standing alone. See Cleveland v Rizzo, 99 Mich App 682; 298 NW2d 617 (1980). In Jones v Porretta, 138 Mich App 241; 360 NW2d 181 (1984), another panel of this Court decided that Warfield was wrongly decided. In Jones, as in this case, the trial court gave the correct standard jury instruction but added the guarantor language. Jones relied on Javis v Ypsilanti Bd of Ed, 393 Mich 689, 702-703; 227 NW2d 543 (1975), in which the Supreme Court held that where a trial court deviates from an accurate standard jury instruction, and that deviation is properly brought to the trial court’s attention prior to deliberation, prejudicial error will be presumed.
We believe that the Jones panel misapplied Javis. This is not a case in which the trial court
We also disagree with plaintiffs’ argument that GCR 1963, 516.6(2) compels a trial court to give only an applicable standard jury instruction to a jury. That rule states:
"Pertinent portions of Michigan Standard Jury Instructions (SJI) published under authority of this sub-rule shall be given in each civil case in which jury instructions are given if (a) they are applicable and (b) they accurately state the applicable law.”
More pertinent is GCR 1963, 516.6(4) which states:
"This subrule does not limit the power of the court to give additional instructions on applicable law not covered by SJI. Additional instructions when given shall be modeled as nearly as practicable after the style of SJI, making them concise, understandable, conversational, unslanted and non-argumentative.”
We hesitate, without an explicit rule, to limit a trial court’s discretion regarding the reading of additional instructions to only those situations where there is a standard jury instruction which does not apply. Nevertheless, we do believe that it would be the better practice for trial courts to limit their instructions on the law of the case to only the applicable standard jury instructions. Superfluous instruction too often lends itself to error.
Affirmed.
Concurring Opinion
S. Everett, J.
(concurring). While I concur in the result reached, I feel compelled to write separately. This decision recognizes the fact that the trial court’s instructing the jury that no physician is required to guarantee results properly states the law, under the circumstances of this case. At the same time, trial courts are urged to limit their instructions to only the applicable standard jury instruction.
The refusal to give a requested instruction which states the applicable law, and is supported by the evidence, is error. Richman v City of Berkley, 84 Mich App 258; 269 NW2d 555 (1978); Bailey v Graves, 411 Mich 510; 309 NW2d 166 (1981). If a trial court accepts the admonition of the majority opinion, such acceptance constitutes error, and probably error mandating reversal. If a trial court follows the above-noted rule, then it is ignoring the urging of this Court. I do not believe that the trial bench should be placed in this position.
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