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STATE OF MICHIGAN COURT OF APPEALS

JANIS CLIFF, Plaintiff-Appellee, v MICHAEL E. HEATH, D.D.S. and THE HUNTINGTON GROUP, P.C., Defendants-Appellants, and GREGORY NEILSEN, D.D.S. a/k/a GREGORY NIELSEN, D.D.S. and JOHN V. GAUL, D.D.S., Defendants.

UNPUBLISHED January 4, 2011

No. 294101 Oakland Circuit Court LC No. 2006-078456-NH

JANIS CLIFF, Plaintiff-Appellee, v GREGORY NEILSEN, D.D.S. a/k/a GREGORY NIELSEN, D.D.S., Defendant-Appellant, and MICHAEL E. HEATH, D.D.S., JOHN V. GAUL, D.D.S., and THE HUNTINGTON GROUP, P.C., Defendants. No. 294710 Oakland Circuit Court LC No. 2006-078456-NH

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JANIS CLIFF, Plaintiff-Appellee, v MICHAEL E. HEATH, D.D.S. and THE HUNTINGTON GROUP, P.C., Defendants-Appellants, and GREGORY NEILSEN, D.D.S. a/k/a GREGORY NIELSEN, D.D.S. and JOHN V. GAUL, D.D.S., Defendants. No. 294896 Oakland Circuit Court LC No. 2006-078456-NH

Before: CAVANAGH, P.J., and FITZGERALD and FORT HOOD, JJ. PER CURIAM. Defendants appeal as of right a judgment in plaintiff's favor after the trial court entered (1) an order granting plaintiff's motion for rehearing and reconsideration of a decision granting a new trial in favor of defendants Michael Heath, D.D.S. and Huntington Group, P.C., (2) an order denying a motion for prevailing party costs and case evaluation sanctions filed by defendant Gregory Nielsen, D.D.S., and (3) an order granting plaintiff's motion for prevailing party costs and case evaluation sanctions. We affirm. Docket No. 294101 This is a dental malpractice case. A five-day jury trial was held before a visiting judge, the Honorable Charles Simon, and resulted in a verdict in favor of plaintiff and against Dr. Heath and Huntington, only. Dr. Heath and Huntington moved for a new trial on the grounds that plaintiff's counsel committed misconduct in her closing argument and that an improper jury instruction was given to the jury. In particular, these defendants argued that during closing argument plaintiff's counsel alleged that there was a conspiracy between defendants, defense counsel, and defendants' expert witnesses to render collusive and untrue testimony which was highly improper, inflammatory, and denied defendants a fair trial. Defendants also argued that during closing argument plaintiff's counsel requested that the jury "send a message" to defendants which was prejudicial and materially affected defendants' right to a fair trial. Further, these defendants argued that the jury was improperly instructed because M Civ JI 50.10 was given and there was "absolutely no testimony that Plaintiff had a latent susceptibility or was unusually susceptible to injury." -2-

Oral arguments were held on the motion before Judge Simon, but a complete trial transcript was not provided to the court. Following arguments, Judge Simon concluded, in total, as follows: In light of the Defense's comment, the word conspiracy bothered me, and also the sending a message is really a message for punishment. And the current case, that's at 404 Michigan 339, where setting purpose to prejudice the Jury in regards to the Juror's attention from the merits of the case, here it didn't happen that many times, but also, it's my

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Michigan Law