Medical malpractice; Motion for new trial; MCR 2.611(A); Trial court’s remarks & evidentiary ruling; Harmless error; MCR 2.613(A); Future medical expenses; MCL 600.6305(1)(b)(i); MRE 702; Medication awaiting FDA approval; Speculative & contingent damages; Ensink v Mecosta Cnty Gen Hosp; Cumulative error

The court held that although the trial court abused its discretion by sustaining an objection to a defense question concerning the size of plaintiff’s parathyroid glands, the error was harmless. Further, plaintiff’s future medical damages based on a medication awaiting FDA approval were not impermissibly speculative. Defendant-surgeon argued that the trial court unfairly undermined his defense by stating that counsel mischaracterized the evidence when referring to plaintiff’s parathyroid glands as microscopic. Because testimony established that the glands could not be identified with the naked eye and were confirmed microscopically, there was a sufficient evidentiary basis for the challenged question and the objection should not have been sustained. But defendant was still able to present his theory that unintentionally removing glands that could not be seen did not breach the standard of care, and the trial court expressly left their size for the jury to decide. Thus, no unfair trial resulted. Defendant also challenged future medical damages based on TransCon PTH because it lacked FDA approval at trial. The evidence showed plaintiff suffered permanent hypocalcemia, TransCon had completed phase-three trials, continued to be administered in clinical trials, and its FDA application had been denied for manufacturing-control reasons rather than safety or effectiveness. Plaintiff’s treating endocrinologist testified it was more likely than not to receive approval and that plaintiff was a candidate for it. Thus, “a reasonable certainty existed at the time of trial that TransCon would be approved by the FDA.” Expert testimony also supplied a reasonable basis for estimating its annual cost at $80,000 to $100,000. The damages therefore were not too speculative or contingent, and no cumulative error warranted a new trial. Affirmed.