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Konway v. Jordan3/1/2002
Plaintiff also argues that defendants' cross-examination of plaintiff's experts Drs. Berke and Zack was intended from the outset to harass, insult and belittle them because their testimony was diametrically opposed to defendants' experts' testimony, and the jury's determination as to credibility would therefore decide the trial's outcome. Plaintiff notes that defense counsel persistently referred to Drs. Berke and Zack as "hired witnesses" earning in excess of one million dollars over the years in "the hired witness business," in a consistently disrespectful, belligerent, harassing and insulting manner, over plaintiff's counsel's vehement objections. Plaintiff also takes issue with certain of defense counsel's remarks in closing argument.
When reviewing asserted improper comments by an attorney, we first determine whether the attorney's action was error and, if it was, whether the error requires reversal. An attorney's comments usually will not be cause for reversal unless they indicate a deliberate course of conduct aimed at preventing a fair and impartial trial. Reversal is required only where the prejudicial statements of an attorney reflect a studied purpose to inflame or prejudice a jury or deflect the jury's attention from the issues involved. [Kubisz v Cadillac Gage Textron, Inc, 236 Mich App 629, 638; 601 NW2d 160 (1999), quoting Hunt v Freeman, 217 Mich App 92, 95; 550 NW2d 817 (1996).].
The Supreme Court stated in the medical malpractice case of Wischmeyer v Schanz, 449 Mich 469, 474-475; 536 NW2d 760 (1995):
A broad range of evidence may be elicited on cross-examination for the purpose of discrediting a witness. The scope and duration of cross-examination is in the trial court's sound discretion; we will not reverse absent a clear showing of abuse. The trial judge is charged with overseeing attacks on an expert's credibility and insuring that
questions seeking to elicit evidence indicating bias, prejudice or interest and inconsistent testimony or statements are not unduly limited or improvidently extended. The trial judge must also be alert to questions which harass, intimidate or belittle a witness. [quoting Wilson v Stilwill, 411 Mich 587, 599; 309 NW2d 898 (1981).]
However, when a case turns on the testimony of one expert compared with that of another, the credibility of each expert is relevant to the disposition of the case. The credibility of a medical expert, therefore, is relevant to the disposition of a medical malpractice case and evidence of an expert's credibility generally is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice. [Wischmeyer, supra at 474-475.]
Despite the lack of civility and the innuendo defense counsel included in his cross- examination of plaintiff's experts, reversal on this basis is not merited, given that this trial was a battle of the experts, and wide latitude in cross-examination on matters of credibility and bias is permitted. Wischmeyer, supra. Defense counsel's remarks in closing argument were inappropriate. However, because plaintiff did not object, and the remarks were not expressly addressed to any expert in particular, we conclude reversal is not warranted.
Affirmed.
Peter D. O'Connell
Helene N. White
Jessica R. Cooper
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