-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

ANISSA GASKIN,

Plaintiff-Appellant,

UNPUBLISHED

May 10, 2018

v No. 337710

Jackson Circuit Court

CYNTHIA RIDER, D.M.D., LC No. 16-002937-NH

Defendant-Appellee.

Before: SHAPIRO, P.J., and M. J. KELLY and O’BRIEN, JJ.

PER CURIAM.

Plaintiff appeals the trial court’s order granting defendant’s motion for summary 

disposition pursuant to MCR 2.116(C)(10) on the grounds that plaintiff’s affidavit of merit was 

fatally defective. The court found that the expert who signed the affidavit did not meet the 

requirements of MCL 600.2169, and that plaintiff’s counsel could not have had a reasonable 

belief that the expert did meet the requirements. For the reasons set forth below, we affirm. 

On referral from her general dentist, plaintiff had a tooth extracted by defendant, a 

dentist, board certified in maxillofacial surgery. After the procedure, several complications 

developed, which plaintiff assert were the result of malpractice on the part of defendant. When 

plaintiff initially filed suit, her complaint was not accompanied by an affidavit of merit as 

required. Because defendant had failed to comply with statutorily mandated pre-suit discovery, 

plaintiff was granted an additional 91 days to file the affidavit. MCL 600.2912d(3). Within that 

period, plaintiff filed an affidavit of merit signed by Dr. Willeam Choby, DMD. Dr. Choby 

averred that he was “engaged in the full time practice of dentistry that includes dental implants 

and oral surgery . . .,” outlined the applicable standards of care for tooth extraction and how 

defendant breached those standards, and concluded that defendant’s breach was the actual and 

proximate cause of plaintiff’s injuries. Dr. Choby, although he has a particular clinical interest in 

implants, is a general practice dentist with no formal specialty and no board certification.

As a general practice dentist, Dr. Choby does not have the credentials required by statute 

to testify against defendant regarding the standard of care. MCL 600.2169 provides that

(a) If the party against whom or on whose behalf the testimony is offered 

is a specialist, specializes at the time of the occurrence that is the basis for the 

action in the same specialty as the party against whom or on whose behalf the 

testimony is offered. However, if the party against whom or on whose behalf the 
-2-

testimony is offered is a specialist who is board certified, the expert witness must 

be a specialist who is board certified in that specialty.

When the expert who signs the affidavit of merit does not meet MCL 600.2169’s 

requirements, the affidavit is defective and the case will be dismissed unless the plaintiff can 

show that counsel “reasonably believe[d]” that the expert “meets the requirements for an expert 

witness under section 2169.” MCL 600.2912d. 

Given the defective affidavit, defendant moved for dismissal. Plaintiff responded that 

dismissal was improper because counsel had a reasonable belief that Dr. Choby did qualify to 

testify regarding standard of care. The trial court concluded that Dr. Choby did not qualify and 

that it would not have been reasonable to conclude otherwise given the information available to 

plaintiff. Plaintiff appealed. 1 

In reviewing the issue presented, we, like the trial court considered the information that 

was available to plaintiff’s counsel concerning the fact that defendant was a board-certified 

specialist. “Although we recognize that at the affidavit-of-merit stage, the plaintiff’s counsel 

may have limited information available to ensure a proper matching between the plaintiff’s 

expert and the defendant, and must therefore be allowed considerable leeway in identifying an 

expert affiant, such leeway cannot be unbounded.” Bates v Gilbert, 479 Mich 451, 458; 736 

NW2d 566 (2007) (quotation marks and citation omitted). 

It is undisputed that at the time this case arose, the defendant was a specialist in oral and 

maxillofacial surgery, which is a dental specialty recognized in Michigan. Michigan 

Administrative Code R 338.11501(1)(a). Accordingly, Dr. Choby, in order to satisfy the 

requirements of MCL 600.2169(1)(a), needed to specialize in the same area. MCL 

600.2169(1)(a). Dr. Choby was a licensed general dentist engaged in the full-time practice of 

dentistry, which included dental implants and oral surgery. His affidavit did not claim that he 

was a specialist in oral surgery.

We agree with the trial court’s conclusion that any belief that Dr. Choby shared 

defendant’s specialty and certification was not reasonable. Dr. Choby’s affidavit averred that he 

was “a general dentist.” Therefore, unless a person could have reasonably concluded that 

defendant was not a specialist, but rather a general dentist, they could not have reasonably 

believed that Dr. Choby met the requirements of MCL 600.2169. Plaintiff’s counsel argues that, 

despite his best efforts, he was not able to locate any licensure information for defendant on the 

Michigan Department of Licensing and Regulatory Affairs (LARA) website. However, as 

defendant points out, the LARA website does show that defendant held licenses as a dentist, oral 

 1 A trial court’s decision regarding a motion for summary disposition is reviewed de novo. Old 

Kent Bank v Kal Kustom, Inc, 255 Mich App 524, 528; 660 NW2d 384 (2003). We also review 

de novo issues of statutory interpretation. Ameritech Mich v Michigan PSC, 239 Mich App 686, 

690; 609 NW2d 854 (2000). 
-3-

surgeon, and in the pharmacy profession.2 Accordingly, the information that defendant was a 

licensed oral surgeon was publicly available to plaintiff before she filed her lawsuit. Perhaps 

most tellingly, plaintiff’s complaint properly identified defendant as a maxillofacial surgeon. 

Plaintiff relies on Woodard v Custer, 476 Mich 545, 558-560; 719 NW2d 842 (2006), 

which held that it is the most relevant specialty that must control where multiple specialties are 

in play. Plaintiff’s reliance is misplaced, however. Woodard stated, “If a defendant physician is 

a specialist, the plaintiff’s expert witness must have specialized in the same specialty as the 

defendant physician at the time of the occurrence that is the basis for the action.” Id. at 578. As 

noted above, plaintiff seemed to recognize in her complaint that defendant was a specialist in the 

area of oral and maxillofacial surgery, and that she was practicing that specialty at the time of the 

alleged malpractice. Plaintiff’s complaint alleges that “[d]efendant had a duty to provide 

dental/medical care consistent with the applicable standards of care for specialists in oral and 

maxillofacial surgery.” (Emphasis added). Moreover, the complaint contains several other 

allegations in her complaint referring to defendant as an oral and maxillofacial surgeon. 

Therefore, by her own assertions, plaintiff knew that defendant was practicing as a specialist in 

oral and maxillofacial surgery when she treated plaintiff.

In sum, plaintiff’s affidavit of merit was signed by an expert who was a general dentist, 

not an expert in oral and maxillofacial surgery, and so could not satisfy the requirements of MCL 

600.2169. And because substantial information concerning defendant’s qualifications was 

available, a conclusion that she was a general dentist was not reasonable. Accordingly, the trial 

court properly granted defendant’s motion for summary disposition.

Affirmed.

/s/ Douglas B. Shapiro 

/s/ Michael J. Kelly 

/s/ Colleen A. O'Brien 

 2 The registration page does not list the issue date for defendant’s oral surgeon license; however, 

the page details that defendant’s oral surgeon license expires August 31, 2020. A license in the 

dental profession must be renewed every three years. Michigan Administrative Code R 

338.11701(2). Therefore, defendant’s previous license would have expired August 31, 2017, at 

the latest, which was after plaintiff filed her lawsuit.