## Facts

- James O. Barnett III underwent gallbladder surgery at Crittenton Hospital performed by Dr. Renato Albaran.
- After surgery, Barnett developed a dangerously low platelet count; his condition worsened and he died following a rare blood disorder.
- The estate’s personal representative sued several physicians and their professional corporations for medical malpractice, alleging failures in diagnosis and treatment that caused Barnett’s death.
- To satisfy medical-malpractice filing requirements, plaintiff submitted experts’ affidavits of merit stating standard-of-care and causation opinions.
- During discovery and trial preparation, those experts obtained additional information and modified or refined aspects of their opinions from what appeared in the affidavits.
- At trial, the court admitted the affidavits and allowed defendants to use them to highlight inconsistencies with the experts’ trial testimony.
- The affidavits referenced Dr. Shah, a physician who had settled before trial; Shah’s deposition was read to the jury.
- The jury returned a no-cause verdict, and judgment was entered for the remaining defendants.

## Issues

1. Whether the plaintiff’s expert affidavits of merit were admissible at trial as substantive evidence under Michigan’s party-opponent admission rule and as impeachment under the prior-inconsistent-statement rule.
2. Whether the jury could consider affidavits of merit that referenced a settling physician in light of Michigan’s comparative-fault statutes permitting allocation of fault to nonparties.
3. Whether admitting the settling physician’s deposition as substantive evidence required a new trial, or was harmless.

## Decision

- The Michigan Supreme Court reversed the Court of Appeals and reinstated the trial court’s judgment for defendants.
- The affidavits of merit were properly admitted as substantive evidence as adoptive/authorized admissions of a party opponent under MRE 801(d)(2)(B) and (C).
- The affidavits were also properly usable for impeachment as prior inconsistent statements under MRE 613.
- References to the settling physician were permissible because Michigan law allows consideration of nonparty (including settling party) fault when allocating responsibility.
- Even if admitting the settling physician’s deposition as substantive evidence was error, it was harmless because the same information reached the jury through other admissible evidence.

## Legal Principles

- A party’s filed and relied-upon expert affidavit of merit in a medical-malpractice action may be admitted against that party as a nonhearsay admission under MRE 801(d)(2)(B) and (C).
- When an expert’s trial testimony differs from statements in the affidavit of merit, the affidavit may be used to impeach under MRE 613.
- Michigan’s comparative-fault framework permits the jury to consider the fault of nonparties, including settling actors, for purposes of apportioning fault.
- An evidentiary error does not warrant a new trial when the same substance is presented to the jury through other admissible means (harmless error).

## Conclusion

The court upheld a defense verdict in a medical-malpractice case, holding that affidavits of merit could be admitted as party-opponent admissions and used to impeach experts, that references to a settling physician were allowed for comparative-fault allocation, and that any improper use of the settling physician’s deposition was harmless.


Barnett v. Hidalgo, 732 N.W.2d 472 (Mich. 2007)