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### STATE OF MICHIGAN

COURT OF APPEALS

SURGICAL INSTITUTE OF MICHIGAN, L.L.C.,

Plaintiff-Appellee,

and

LISA PHILLIPS,

Plaintiff, and

OAKLAND PHYSICIANS MEDICAL CENTER, L.L.C., SUMMIT MEDICAL GROUP, P.L.L.C., and UNIVERSAL REHABILITATION SERVICES, INC.,

Intervening Plaintiffs, UNPUBLISHED October 22, 2015

v No. 321778 Wayne Circuit Court STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, LC No. 11-010703-NF

Defendant-Appellant.

Before: M ETER , P.J., and W ILDER and R ONAYNE K RAUSE , JJ.

P ER C URIAM

. Plaintiff Surgical Institute of Michigan, L.L.C. (SIM), filed this action to recover no-fault personal injury protection (PIP) benefits from defendant, State Farm Mutual Automobile Insurance Company, for medical services that SIM provided to pl aintiff Lisa Phillips for injuries arising from a motor vehicle accident. SIM sought recovery of $40,055, but the jury awarded it only $20,000, and the trial court en tered a judgment in that am ount, plus taxable costs, attorney fees, and statutory interest. D efendant appeals as of right, a nd we affirm.

In its sole issue on appeal, de fendant argues that the trial c ourt erred in denying its motion in limine to exclude the de bene esse deposition of SIM’ s billing expert, Rebecca-2- Overton, regarding SIM’s bill for medical services, and allowin g the deposition to be introduced at the February 2014 trial. Defendant argues that the de bene esse deposition should have been excluded because Overton was not listed as a witness in SIM’s w itness list filed before the due date under the trial court’s sc heduling order. Defendant asser ts that it did not learn of plaintiff’s intent to introduce Overton’s testimony until plaintiff filed a proposed joint final pretrial order that defendant received shortly b efore the de bene deposition w as taken on January 30, 2014.

A de bene esse deposition, as distinguished from a discovery d eposition, is generally taken to preserve testimony. See Dykes v Williams Beaumont Hosp , 246 Mich App 471, 475 n 5; 633 NW2d 440 (2001). MCR 2.301(C) states, “After the time for completion of discovery, a deposition of a witness taken solely for the purpose of preserv ation of testimony may be taken at any time before commencement of trial without leave of the cour t.” Depositions are admissible only as provided by the Michiga n Rules of Evidence. MCR 2.308( A).

A witness list is an element of discovery that serves to avoid trials by surprise. Grubor Enterprises v Kortidis , 201 Mich App 625, 628; 506 NW2d 614 (1993). Under MCR 2.401(I)(1), the parties must file and serve witness lists in a ccordance with the trial court’s scheduling order. The witness lis t must identify whether the w itness is an expert and the field of expertise. MCR 2.401(I)(1)(b). “The court may order that any witness not listed in accordance with [the] rule will be prohibited from testifying at trial exc ept for good cause shown.” MCR 2.401(2).

We review for an abuse of discr etion a trial court’s decision to bar a witness’s testimony based on problems with a witness list. See Duray Dev
, LLC v Perrin , 288 Mich App 143, 162; 792 NW2d 749 (2010). Similarly, a trial court’s decision regar ding a motion in limine is reviewed for an abuse of discretion, People v Vansickle , 303 Mich App 111, 117; 842 NW2d 289 (2013), as is a trial court’s ev identiary decision to admit a d eposition at trial, Lomardo v Lombardo , 202 Mich App 151, 154; 507 NW2d 788 (1993). “An abuse of dis cretion occurs when the trial court’s decision falls outside the range of prin cipled outcomes.” Duray Dev
, LLC
, 288 Mich App at 162.

Because Overton was not disclosed on SIM’s witness list, the d ecision whether to allow her testimony was within the trial court’s discretion upon a sh owing of good cause. MCR 2.401(I)(2); Duray Dev
, LLC , 288 Mich App at 162-163; Stepp v Dep’t of Natural Resources

, 157 Mich App 774, 779; 404 NW2d 665 (1987). Although “good cau se” is not defined in MCR 2.401(I)(2), “‘[g]ood cause’ simply means a ‘satisfactory,’ ‘so und or valid’ ‘reason’ . . . .” People v Buie , 491 Mich 294, 319; 817 NW2d 33 (2012), quoting Random House Webster’s College Dictionary (1997); see also Thomas M Cooley Law Sch v Doe 1 , 300 Mich App 245, 264; 833 NW2d 331 (2013). It is within t he trial court’s autho rity to sanction a party who fails to follow a scheduling order by excluding a witness’s testimony. Duray Dev
, LLC
, 288 Mich App at 164. If disallowing the witness would result in a sanction equivalent to dismissal, a trial court should carefully consider the fact ors involved and all of its o ptions in the context of the particular case before it. Id . at 164-166. Relevant factors in determining an appropriate discovery sanction include:

(1) whether the violation was wilful or accidental; (2) the pa rty’s history of refusing to comply with discovery requests (or refusal to di sclose witnesses);-3- (3) the prejudice to the defenda nt; (4) actual notice to the de fendant of the witness and the length of time prior to trial that the defendant receiv ed such actual notice; (5) whether there exists a history of plaintiff engaging in del iberate delay; (6) the degree of compliance by the plaintiff with other provisions of the court’s order; (7) an attempt by the plaintiff to timely cure the defect, and (8) whether a lesser sanction would better serve the interests of justice. [ Dean v Tucker , 182 Mich App 27, 32-33; 451 NW2d 571 (1990) (citations omitted).]

Although the trial co urt did not expressl y address “good cause ,” its decision was based on appropriate considerations, including the fact that the reasona bleness of SIM’s bill would be a necessary issue if the jury rejected defendant’s primary defens e that the medical services were not related to an injury suffered by Phillips in her automobile accident. 1 “Trial courts should not be reluctant to allow unlisted witnesses to testify when the in terest of justice so requires.” Elmore v Ellis , 115 Mich App 609, 613; 321 NW2d 744 (1982).

It is also apparent that the trial court considered appropriat e factors in determining that precluding Overton’s de bene esse deposition would not be an ap propriate sanction for SIM’s untimely disclosure of Overton and that a jury instruction coul d instead be crafted to address the prejudice to defendant caused by SIM’s delay. Contrary to defe ndant’s argument, the trial court did not make inherently inconsistent remarks regarding whether SIM’s delay in disclosing Overton was prejudicial. Examined in context, the trial court was, simply, going through its thought process orally during the hearing. The court at first mentioned prejudice and then seemed to reason that the prejudice was lessened because defend ant’s attorney was able to crossexamine Overton and learn about the billing matters during the deposition and before trial. 2 Ultimately, however, the court acknowledged prejudice but decid ed that a curative instruction would sufficiently address the issue. The trial court clearly noted, when crafting the jury instruction with the participation of both parties, that SIM’s delay was somewhat disadvantageous and prejudicial. While the court’s instruction did not provide for any presumption in favor of defendant, we reject defendant’s argume nt that it had “hollow meaning.” Rather, as suggested in defendant’s closing argument, the instr uction invited the jury to scrutinize the factual basis of Overton’s last-minute opinion, which was offered by SIM to

1 The trial court noted that defendant had had the bill in its p ossession but “just didn’t know who was going to be testifying.”

2 The trial court’s wording was so mewhat unclear, but in saying to defendant, “now you know exactly what they’re gonna say,” the court seemed to be suggest ing that having the de bene esse deposition was somewhat better than having Overton show up at t he last minute to testify in person at trial, perhaps because it gave defendant more time to prepare arguments. It is also possible that the court mistakenly believed, at that point, tha t Overton was going to testify in person at trial. Indeed, the court later stated that it would “allow Overton to testify or read or however you’re going to do this . . . .” (Emphasis added). At any rate, the trial court continued through its reasoning process and ultimately concluded that the re was some prejudice to defendant in allowing the deposition to be admitted but that it could be cured with a jury instruction.-4- establish the reasonableness of its charges. The trial court i nstructed the jury that Overton was a “newly identified witn ess” by SIM and, as a result, defendant d id not have the ability to learn what she would say. The trial court also instructed the jury t hat defendant “clearly is at a disadvantage by this delay.” Def endant then used this instruct ion during its closing argument to argue that the delay affected its ability to discover informati on regarding the charges.

Considering all relevant factors, we conclude that the trial c ourt did not abuse its discretion in allowing Overton’s de bene esse deposition. The trial court’s decision was within the range of principled outcomes.

Affirmed.

/s/ Patrick M. Meter /s/ Kurtis T. Wilder /s/ Amy Ronayne Krause