Melynchenko v. Clay

T. M. Burns, P.J.

(dissenting). I respectfully dissent. I believe that the trial court’s action in this case was a proper exercise of discretion.

I disagree with the majority’s statement that MRE 403 does not authorize total exclusion of a witness’s testimony. It is true that MRE 403 authorizes the exclusion of "evidence” and not "witnesses.” However, when the probative value of all the evidence to be presented by a witness is substantially outweighed by one of the other MRE 403 considerations, all such evidence should be excluded. When a witness has no evidence to offer, there is no need for the witness to take the stand.

I cannot say that the trial court abused its discretion in this case. The trial court noted that it was unavoidable that the jury would learn that Dr. Fleischman was plaintiff’s treating physician. Thus, all of Dr. Fleischman’s testimony which was to be offered by defendant carried with it the danger of unfair prejudice. The majority resolves this problem by assuming that the trial court is able to exclude any mention of the fact that Dr. Fleischman was plaintiff’s treating physician. I am not willing to join in that assumption. Dr. Fleischman’s status may be revealed elsewhere during the trial. Plaintiff may wish to present evidence regarding his treatment subsequent to receipt of the injuries. I believe that the trial court did not *199abuse its discretion in determining which evidence to exclude. As the trial court correctly noted, defendant could present similar expert testimony through a different expert witness. The evidence presented by another witness would not carry with it the danger of unfair prejudice. Under the circumstances of this case, the trial court did not err.

I would affirm.