Michael J. Cook Obtains Affirmance of Order Denying Relief Under MCL 600.2310 in Medical-Malpractice Action
In Estate of Carlsen v Southwestern Michigan Emergency Services, PC, the plaintiff raised a variety of constitutional and evidentiary arguments in an effort to overturn a jury’s no-cause verdict in a wrongful-death action alleging medical malpractice. Attorneys Trent Collier and Michael Cook obtained a published Court of Appeals opinion affirming the verdict.
The decedent died from Methicillin resistant staphylococcus aureus (MRSA) meningitis, a rare bacterial infection. When an emergency-medicine physician employed by the defendant saw the decedent, she had a fever but no signs of bacterial infection. The Estate claimed that the physician should have diagnosed the bacterial infection. A jury determined that the physician did not breach the standard of care.
On appeal, the Estate argued that the defendant violated the Due Process Clause by using a peremptory challenge to remove a potential juror based on sex. The potential juror was a pregnant woman who, when the court asked whether there was anything it should be aware of concerning her suitability to serve as a juror, responded, “Emotions, you know, all that stuff.” The Court of Appeals found no due-process violation. It explained that “[d]efense counsel’s exercise of peremptory strikes does not show a pattern of striking jurors on the basis of their gender … but on counsel’s estimation of whether there were any indications that a juror, for whatever reason, might not view the facts of the case with the level of dispassion desired by the defense.”
Next, the Estate argued that the defense improperly disclosed that the Estate settled with a co-defendant. During trial, defense counsel objected to a question that suggested the hospital’s nurses made an error, explaining that the Estate never alleged such a claim and “the hospital’s been dismissed from [the case].” Again, the Court of Appeals rejected the Estate’s argument on appeal. Defense counsel’s statement was true and it didn’t violate MRE 408 or a pretrial order because it “was not a statement about the existence or terms of a settlement.”
The court also rejected the Estate’s argument that defense counsel engaged in prejudicial misconduct based on objections during trial. The court held that “the attorneys’ zealous advocacy for their clients was within the bounds of good lawyering within the context of a trial.” The defense trial team that provided that good lawyering was Brian Whitelaw, Marcy Matson, and Chris Ryan.