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145773 - Est of Johnson v Kowalski, MD

Estate of Barbara Johnson, by Joedeanna Johnson, Successor Personal Representative,
Alan Falk
Cyril V. Weiner
(Appeal from Ct of Appeals)
(Wexford – Fagerman, W.)
Robert F. Kowalski, M.D.,
Robert G. Kamenec
Trinity Health-Michigan d/b/a Mercy Hospital Cadillac, Four Seasons Emergency Associates, L.L.C., and Munson Medical Center,


​Barbara Johnson went to an emergency room after being bitten in the face by a horse. Johnson was alert when she arrived in the emergency room at 2:45 p.m.; although there was bleeding into her mouth from the bite, her airway was open. She was treated by Dr. Robert Kowalski; according to Kowalski, he requested an anesthesiologist’s assistance to manage Johnson’s airway at about 2:50 p.m., and Dr. Charles Urse responded to this request. 

Kowalski was called away to attend to another patient at 3:00 p.m.  About five minutes later, Johnson began having trouble breathing.  Urse and another doctor attempted to intubate Johnson or ventilate her lungs, but with limited success.  Johnson suffered a cardiac arrest.  She was resuscitated and placed on life support, but died five days later. 

The plaintiff, the personal representative of Johnson’s estate, hired a lawyer, who concluded that Johnson was the victim of medical malpractice.  The attorney’s theory of the case, formed after studying the medical record, was that Kowalski left Johnson before Urse arrived, leaving Johnson unattended.  The lawyer disputed Kowalski’s claim that he sought Urse’s assistance before Johnson began having trouble breathing. Kowalski was negligent for leaving Johnson unattended and for failing to intubate her before being called away, the attorney concluded. 

The plaintiff’s attorney named Urse in a pre-suit notice of intent to file a medical malpractice lawsuit.  The attorney then contacted Nancy Croze, a claims representative for Urse’s insurance company, to explain that, based on his understanding of the facts, Kowalski bore sole responsibility for Johnson’s death.  The lawyer said that Urse would not be named in the lawsuit if Urse could verify his understanding of the facts, perhaps with an affidavit. 

Croze obtained an affidavit from Urse, which she forwarded to the plaintiff’s attorney, stating that she was “confident that this document will meet your needs as you assess your intentions for pursuit of the case.”  In the affidavit, Urse stated that, after being contacted by beeper, he obtained what he needed to treat Johnson and proceeded immediately to the emergency room, arriving within two to three minutes.  He also stated that his “findings and treatment are summarized in my hand-written progress note contained in the medical record.”

In his deposition and at trial, Urse testified that he was at Johnson’s bedside discussing treatment options with Kowalski while Johnson was stable and before Kowalski was called away.  Urse testified that his one-page progress note did not mention this meeting.  He then explained that he signed the affidavit believing that the information the plaintiff’s lawyer sought was how long it took him to arrive in the emergency room after being paged.  Urse also testified that he never saw correspondence between the plaintiff’s attorney and Croze. Urse acknowledged reviewing the plaintiff’s notice of intent, which named him as a defendant, and testified that he discussed the affidavit with a legal representative.

Based on this testimony, the trial court ruled that the plaintiff could use Urse’s affidavit to impeach him, but that the affidavit itself would not be admitted into evidence, because it was not inconsistent with Urse’s trial testimony.  The trial court also ruled that the correspondence between the plaintiff’s attorney and Croze would not be admitted into evidence.  The plaintiff’s lawyer argued that the correspondence would provide necessary context for the statements in Urse’s affidavit, but the trial court rejected that argument, noting that Urse testified that he was unaware of the correspondence.  The plaintiff did argue to the jury, in both opening and closing arguments, that Urse changed his position after signing the affidavit, and that Urse and Kowalski fabricated the defense to the lawsuit. 

The jury returned a verdict for the defense.

The plaintiff appealed, and in a published opinion, the Court of Appeals ruled that the trial court should have admitted Urse’s affidavit and the Croze correspondence for impeachment purposes. The affidavit should have been admitted because it contained facts about Urse’s activities leading up to Johnson’s rapid deterioration, the Court of Appeals stated. 

The question of whether to admit the correspondence between the plaintiff’s counsel and Croze was “[t]he more difficult question,” the panel said.  “If Dr. Urse was aware of the substance of the e-mail exchanged between Croze and plaintiff’s counsel, the jury might have concluded that the phrasing of the affidavit was a deliberate attempt to obfuscate the central issue of the case.  Similarly, even if Dr. Urse was unaware of the e-mail exchange, if the affidavit was nonetheless prepared by his insurer and he signed it at his insurer’s direction, his testimony, while honest, might nonetheless lack credibility because the witness himself was misled and therefore the accuracy of both his affidavit and his trial testimony are suspect.”  In this case, explained the panel, the “sum of the evidentiary presentation” could lead a rational jury to find that Urse, knowingly or unknowingly, participated in an effort to “sandbag” the plaintiff.  Urse was named as a possible defendant in the pre-suit notice, and the plaintiff’s counsel stated that Urse would not be sued if he provided “some kind of verification” of the plaintiff’s understanding of the case. Moreover, Urse admitted that he reviewed the notice of intent together with the proposed affidavit with a legal representative, and Croze told the plaintiff’s counsel that the affidavit would satisfy the attorney’s needs.  “When viewed together, the sum of this evidence is sufficient to allow a reasonable jury to conclude that Dr. Urse’s trial testimony differed markedly from his affidavit.”  Under MRE 104(b), the evidence was admissible.  The trial court’s improper exclusion of the evidence may have affected the jury’s determination of Urse’s credibility, the Court of Appeals held.  The panel reversed the trial court and remanded the case for further proceedings.  

Kowalski appealed and, on October 2, 2013, the Supreme Court granted leave to appeal.  The parties are directed to address:  (1) whether Urse’s affidavit is admissible; and (2) whether correspondence between the plaintiff's counsel and Urse's claims representative is admissible.