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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

ROLLA MITCHELL,

Plaintiff-Appellant,

FOR PUBLICATION

August 24, 2017

9:05 a.m.

v No. 331959

Kalamazoo Circuit Court

KALAMAZOO ANESTHESIOLOGY, PC and 

BERNARD MASON SMITH III, M.D.,

LC No. 2013-000500-NH

Defendants-Appellees.

Before: BOONSTRA, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ.

SWARTZLE, J.

In this medical-malpractice suit, plaintiff Rolla Mitchell sued defendant Bernard Mason 

Smith III, M.D., and the doctor’s former employer, defendant Kalamazoo Anesthesiology, PC. 

Plaintiff claimed that Dr. Smith negligently performed certain post-operative services that 

permanently injured the phrenic nerve in plaintiff’s shoulder. The jury returned a verdict in 

favor of defendants, and plaintiff appealed.

One key issue at trial was whether an ultrasound image sought to be introduced by the 

defense was, in fact, an accurate scan of the ultrasound image taken of plaintiff’s shoulder on the 

day of surgery. The image purported to show that Dr. Smith properly placed the needle and 

catheter while performing the post-operative services on plaintiff. Outside the presence of the 

jury, the trial judge held that defendants had properly authenticated the image and, as a result, 

plaintiff’s counsel was precluded from presenting evidence or argument to the jury that the 

proffered image was not, in fact, an accurate image of plaintiff’s shoulder.

As explained below, we conclude that the trial court properly served its gatekeeping role 

by admitting the ultrasound image as authentic under Michigan Rule of Evidence 901. Yet, 

authentication under MRE 901 is a threshold matter that goes to the admissibility of evidence, 

not the ultimate weight to be given that evidence. By precluding plaintiff’s counsel from 

attacking the genuineness and reliability of the ultrasound image before the jury, the trial judge

overstepped his gatekeeping role and, instead, intruded on the jury’s role as fact-finder. Given 

the importance of the ultrasound image to this dispute, we reverse and vacate the judgment and 

remand for further proceedings.
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I. BACKGROUND

A. Plaintiff’s Shoulder Surgery and Post-Operative Complications

In May 2011, plaintiff had surgery on his right shoulder at Borgess Medical Center in 

Kalamazoo, Michigan. Defendant Kalamazoo Anesthesiology provided anesthesiology services 

for Borgess under contract. Both Dr. Phyllis Lashley and Dr. Smith worked for Kalamazoo 

Anesthesiology. Dr. Lashley provided anesthesiology services to plaintiff during his surgery, 

and defendant Dr. Smith provided post-operative services, including performing an “interscalene 

nerve block and continuous catheter placement” on plaintiff’s shoulder. In October 2013, 

plaintiff sued defendants for malpractice, alleging, among other things, that Kalamazoo 

Anesthesiology failed to obtain plaintiff’s informed consent and Dr. Smith negligently conducted 

the procedure. The case proceeded to trial over several days in February 2016. 

At trial, Dr. Lashley testified that she did not “specifically remember” interacting with 

plaintiff before or during his surgery, but records showed that she signed his anesthesia preevaluation form, and a notation on the form indicated that she discussed the use of an 

interscalene block with him to manage his pain after the surgery. At trial, Dr. Brian Kiessling 

explained that an interscalene block was a procedure where the physician uses a needle to 

administer a local anesthetic around the brachial plexus, which provides anesthesia to the patient 

for varying periods of time. 

Dr. Smith testified that he performed the interscalene block and catheter placement on 

plaintiff after the shoulder surgery. Dr. Smith then attached a pain pump to the catheter to help 

plaintiff manage his pain. Dr. Smith stated that part of his training included being careful not to 

puncture the phrenic nerve during the interscalene block. He noted that plaintiff was talking 

throughout the procedure and that there was no indication that plaintiff had suffered a phrenic 

nerve injury at that time.

Later that day, plaintiff had problems breathing, a common symptom of phrenic nerve 

injury. He returned to the hospital and sought follow-up medical advice and treatment. 

Physicians who subsequently treated plaintiff testified that his phrenic nerve was dysfunctional, 

that it was the cause of his shortness of breath, and that his condition was not likely to improve.

B. The Ultrasound Image

One crucial factual dispute at trial was whether Dr. Smith properly performed the 

interscalene block on plaintiff after the shoulder surgery. Plaintiff argued that Dr. Smith 

breached the standard of care by placing the needle or catheter in such a way as to directly 

damage his phrenic nerve. Dr. Smith, by contrast, argued that he properly placed the needle and 

catheter in the interscalene groove near the brachial plexus and that plaintiff was just one of the 

unfortunate patients—1 in 1,000 or 2,000, in Dr. Smith’s estimation—who develop permanent 

phrenic nerve injury, even with a properly performed interscalene block.

The medical records indicated that Dr. Smith used an ultrasound to guide his placement 

of the needle and catheter during the procedure, and Dr. Smith noted on plaintiff’s chart that he 
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printed an image from the scan at the time he performed the procedure. During his deposition, 

Dr. Smith testified that he did not know what happened to the image after he put it with 

plaintiff’s chart on the day of the procedure. Plaintiff repeatedly asked for the ultrasound image 

during discovery, but it was not until just before case evaluation that defendants produced what 

they purported to be a scanned version of the original progress note with an ultrasound image 

attached to it. 

Plaintiff’s counsel questioned the authenticity of the ultrasound depicted in the image. 

Among other things, the image showed that the sticker with plaintiff’s identifying information on 

it had been placed over another sticker that attached the ultrasound image to the progress note,

and that the sticker was different from others used on the day of plaintiff’s procedure. Counsel

also noted that the time listed on the ultrasound by a time-stamp (4:16:27) varied from the time 

of the procedure listed on plaintiff’s chart (15:32), suggesting that the ultrasound image was 

taken 45 minutes after the notes indicated that plaintiff had his procedure.

Defendants moved in limine to prevent plaintiff from presenting evidence to the jury

about the delay in the disclosure of the digital image and to preclude plaintiff from arguing to the 

jury that defendants’ version might not be a true image of the ultrasound taken during the 

procedure. On the first day of trial, the trial court held an evidentiary hearing outside the 

presence of the jury to consider the motion, as well as the predicate question of whether the 

evidence should be authenticated.

At the hearing, Michelle Ritsema testified that she was the Document Imaging Supervisor 

for Borgess Medical Center. She stated that the center had discovered a digital scan of what it 

claimed was the original progress note with the ultrasound printout attached to it. The center 

produced the digital version because the original had apparently been destroyed along with the 

rest of the physical record per the center’s normal record-retention policy. She testified that the

digital version had been found in the center’s medical records and human error caused the delay 

in its disclosure. Regarding the various stickers appearing on the image, Ritsema agreed that the 

sticker on the progress note was the only thing that connected the image to plaintiff, and she 

admitted that she did not know who placed the sticker or when it was placed. Ritsema testified 

that it was normal for a document to have multiple stickers. She also testified, however, that the 

center does not place stickers on the records, so the sticker in question must have been placed by 

an employee in the outpatient short-stay department. According to Ritsema, only the first 

document in a chart would normally have a barcode on it and, therefore, the progress note and 

attached ultrasound would normally not have a barcode label originating from the center. 

Ritsema explained, however, that the outpatient short-stay floors print their own labels with 

barcodes to place on the medical records. Overall, Ritsema did not see anything unusual with the 

sticker having a barcode.

Concerning the time-stamp indicating a different time than when plaintiff’s procedure

took place, Ritsema testified that she did not have any doubt that the time-stamp reflected the 

actual time the image was printed. Ritsema noted that the difference between the time-stamp and

the time of plaintiff’s procedure could have resulted from some kind of incongruence between 

the system’s time and daylight savings time. (It should be noted, however, that the difference is 

not a whole-number of the hour, but rather approximately 45 minutes, suggesting that confusion 

created by daylight savings time was not the complete answer.)
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After taking Ritsema’s testimony, defendants argued that allowing plaintiff to present 

evidence that the ultrasound image was not produced when first requested would cause 

“confusion, prejudice and false impressions being made to the jury.” Moreover, defendants 

argued that plaintiff should be prohibited from arguing that the image did not depict or pertain to 

plaintiff. Because there was no evidence that something “nefarious” or “dishonest” occurred 

with the ultrasound image, defendants argued that any argument to that effect would be a matter 

of “innuendo and supposition” and would unfairly prejudice the defense. Plaintiff responded that 

the image was “tainted” by the offending sticker and apparent time disparity, and the image 

should be excluded from evidence or, if the image was admitted, he should be allowed to attack 

the image’s genuineness and reliability at trial.

The trial court determined that, although there appeared to be some “irregularities with 

respect to this photograph,” there was no evidence that defendants improperly destroyed the 

original or had any role in the failure to disclose it. The trial court found the evidence 

sufficiently authenticated to be admissible. Moving to whether the probative value of the image 

was substantially outweighed by any undue prejudice under MRE 403, the trial judge stated that

any irregularities in its production and the chain-of-custody did not outweigh the probative value. 

(The trial judge did not, however, explicitly consider the probative value of plaintiff’s evidence 

calling into question the genuineness and reliability of the image.) The trial court concluded that 

it would invite a “trial within a trial” involving a nonparty (the center) to allow plaintiff to argue 

that defendants did something wrong in the handling of the image or that the image was not 

accurate. Thus, the trial judge precluded plaintiff from offering any evidence tending to show 

that the image was not an accurate one: “Nor am I going to allow testimony that this particular 

photograph does not belong or otherwise depict the plaintiff’s procedure.” 

During trial, the ultrasound image was a key piece of defendants’ case. A defense expert 

testified that the image represented a “textbook” example for the proper placement of the needle 

during an interscalene block. And plaintiff’s own expert had to concede that the image depicted 

a proper needle placement. Plaintiff’s expert was left to speculate whether Dr. Smith might have 

improperly placed the needle and catheter before or after the ultrasound image was printed. 

After receiving this and other evidence permitted at trial, the jury found that defendants

were not negligent. The trial court entered a judgment of no cause of action in favor of 

defendants, and plaintiff appealed.

II. ANALYSIS

A. Evidentiary Rulings Reviewed for an Abuse of Discretion

On appeal, plaintiff argues that the trial judge erred in several respects with his

evidentiary rulings and that those errors prejudiced the trial. We review a trial judge’s 

evidentiary decisions for an abuse of discretion. Elher v Misra, 499 Mich 11, 21; 878 NW2d 790 

(2016). A trial judge abuses the court’s discretion when the judge selects an outcome that is 

outside the range of principled outcomes. Id. We review de novo whether the trial judge

properly interpreted and applied the rules of evidence to the facts. Donkers v Kovach, 277 Mich 

App 366, 369; 745 NW2d 154 (2007).
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B. Authentication v. Evidentiary Weight of the Ultrasound Image

1. The Trial Judge Did Not Err in Authenticating the Ultrasound Image

Plaintiff first argues that the trial judge erred by allowing defendants to introduce the 

digital image. Plaintiff claims that defendants failed to present sufficient evidence to 

authenticate the image. He also argues that, to the extent that the trial judge did not abuse his

discretion by allowing the image into evidence, the trial judge abused his discretion by 

preventing plaintiff from presenting evidence and arguing to the jury that the image was not what 

it purported to be.

In Michigan, challenges to the authenticity of evidence involve two related, but distinct, 

questions. The first question is whether the evidence has been authenticated—whether there is 

sufficient reason to believe that the evidence is what its proponent claims for purposes of 

admission into evidence. The second question is whether the evidence is actually authentic or 

genuine—whether the evidence is, in fact, what its proponent claims for purposes of evidentiary 

weight and reliability.

The first question is reserved solely for the trial judge. In the role as evidentiary 

gatekeeper, the trial judge must make the initial determination of whether the evidence is 

admissible—a question that depends, among other things, on whether the evidence can be 

authenticated. See People v Mitchell, 37 Mich App 351, 355; 194 NW2d 514 (1971). Under 

MRE 901(a), to authenticate a piece of evidence, the proponent of that evidence bears the burden 

of bringing forth evidence “sufficient to support a finding that the matter in question is what its 

proponent claims.” Our evidentiary rules do not require the proponent to sustain this burden in 

any particular fashion. See MRE 901(b). Indeed, evidence supporting authentication may be 

direct or circumstantial and need not be free of all doubt. See Champion v Champion, 368 Mich 

84, 87-88; 117 NW2d 107 (1962); Livernash v DeLorme, 208 Mich 295, 301; 175 NW 177 

(1919); People v Burrell, 21 Mich App 451, 456-457; 175 NW2d 513 (1970). 

Michigan courts have interpreted MRE 901(a) as requiring the proponent only to make a 

prima facie showing that a reasonable juror might conclude that the proffered evidence is what 

the proponent claims it to be. See Mitchell, 37 Mich App at 355-356. See also Gillespie, 

Michigan Criminal Law and Procedure, Practice Desk Book (2017), § 9.2, p 472 (“[T]he 

question of admissibility turns on an initial decision by the court that a reasonable 

juror might find for the proponent on the question.”). Once the proponent of the evidence has 

made the prima facie showing, the evidence is authenticated under MRE 901(a) and may be 

submitted to the jury. See Mitchell, 37 Mich App at 356. At this first stage, the opponent may 

oppose authentication by arguing that a reasonable juror could not conclude that the proffered 

evidence is what the proponent claims it to be. Nonetheless, this argument must be made on the 

basis of the proponent’s proffer; the opponent may not present evidence in denial of the 

genuineness or relevance of the evidence at the authentication stage. See id. 

Just as the first question—whether the evidence is admissible—is reserved solely to the 

trial judge, the second question—the weight or reliability (if any) given to the evidence—is 

reserved solely to the fact-finder, here the jury. When a bona fide dispute regarding the 

genuineness of evidence is presented, that issue is for the jury, not the trial court. See id. 
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Accordingly, the parties may submit evidence and argument, pro and con, to the jury regarding 

whether the authenticated evidence is, in fact, genuine and reliable. See id. 

Federal courts have similarly interpreted FRE 901(a), the counterpart to MRE 901(a) in 

the Federal Rules of Evidence. See, e.g., US v Jones, 107 F3d 1147, 1150 n1 (CA 6, 1997); US v 

McGlory, 968 F2d 309, 328-239 (CA 3, 1992); US v Silker, 751 F2d 477, 488 (CA 2, 1984).

These and other federal authorities generally hold that a “bona fide dispute as to authenticity or 

identity is not to be decided by the judge, but rather is to go to the jury.” 31A Wright and Miller, 

Federal Practice and Procedure, (2009), Rule 901, p 363. “In other words, conflicting evidence 

on genuineness goes to weight, not admissibility, so long as some reasonable person would 

believe that the item is what it is claimed to be.” Id. 

With this evidentiary distinction in mind, we conclude that the trial judge did not abuse 

his discretion in determining that a reasonable jury might conclude that the ultrasound image was 

an actual depiction of plaintiff’s procedure. The image showed a sticker that attached the 

ultrasound to the underlying progress note, and the sticker included plaintiff’s identifying 

information, the date of the procedure at issue, and the name of the doctor who performed the 

surgery. Thus, the digital image had distinctive characteristics that tended to permit an inference 

that it depicted the ultrasound generated on the date at issue. See MRE 901(b)(4). Further, 

Ritsema testified that the digital scan was made from the original record and was part of 

plaintiff’s medical record. See MRE 901(b)(1); MRE 1003. Although plaintiff raised several 

sound arguments against the image’s authenticity, the evidence need not be free from all doubt to 

be authenticated for purposes of admission, as explained above.

2. The Trial Judge Did Err by Restricting Plaintiff from Attacking the Genuineness 

and Reliability of the Ultrasound Image

As to the second aspect, however, the trial judge erred by precluding plaintiff from 

arguing to the jury that the purported image was not, in fact, an accurate digital scan of the 

original, i.e., that the image was not genuine or reliable and therefore had little-to-no probative 

value. The trial judge’s role in examining the genuineness and reliability of the image concluded 

when he held that the image was admissible. Where a bona fide dispute is presented on the 

genuineness and reliability of evidence, the jury, as finder of fact, is entitled to hear otherwise 

admissible evidence regarding that dispute. Furthermore, any potential confusion to the jury 

related to the chain-of-custody involving a non-defendant could have been cured with an 

appropriate instruction by the trial judge. In foreclosing plaintiff from presenting any evidence 

disputing whether the image actually depicted plaintiff’s procedure, the trial judge in effect 

determined that the image was indeed genuine and reliable, even though such questions of 

evidentiary weight are reserved for the jury. In so ruling, the trial judge erred.

With this said, an evidentiary error is not ordinarily grounds for appellate relief, and such 

relief is appropriate only when the error results in substantial prejudice that denies a fair trial to

the aggrieved party. MCR 2.613(A); see also MRE 103; Lewis v LeGrow, 258 Mich App 175, 

200; 670 NW2d 675 (2003). Here, the error involved a (arguably the) crucial piece of evidence. 

The ultrasound image was the only objective evidence tending to establish whether Dr. Smith

properly placed the needle and catheter in plaintiff’s shoulder. As noted above, a significant 

portion of the expert testimony centered on whether the image showed that Dr. Smith performed
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the procedure within the appropriate standard of care. Importantly, plaintiff’s own expert had to 

concede that the image depicted a proper needle placement, and his expert was left to speculate 

on how Dr. Smith could have otherwise acted negligently. Thus, the ultrasound image was a key

piece of evidence, and evidence as to its genuineness and reliability would have been quite

relevant as to the weight (if any) the jury should have placed on the image. By restricting 

plaintiff from attacking its genuineness and reliability before the jury, the trial judge abused his 

discretion and substantial justice requires that we reverse and vacate the judgment.

Plaintiff raises on appeal several other claims of error. Because we hold that the trial 

judge abused his discretion with respect to the ultrasound image, we need not address the 

remaining claims.

III. CONCLUSION

For the reasons explained above, we reverse and vacate the judgment in this case. We 

remand for further proceedings consistent with this opinion, and we do not retain jurisdiction.

/s/ Brock A. Swartzle

/s/ Mark T. Boonstra

/s/ Amy Ronayne Krause