July 20, 2026
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seva firm
Multicare Health Center v. Progressive Marathon: Court of Appeals Reverses Dismissal Where Trial Court Failed to Adequately Consider the Dean Factors Before Striking Plaintiff’s Expert Witnesses
By Pratheep Sevanthinathan, Esq. The Seva Law Firm
Case: Multicare Health Center v. Progressive Marathon Insurance Company, No. 374992 (Mich. Ct. App. July 20, 2026) (Unpublished)
Court: Michigan Court of Appeals
Panel: Maldonado, P.J., and Riordan and Young, JJ.
Decision: Vacated, Reversed and Remanded — Per Curiam
Lower Court: Oakland Circuit Court, Case No. 23-202174-NF
- Introduction
The Michigan Court of Appeals has reversed a trial court’s decision to strike three key witnesses as a discovery sanction and vacated the resulting summary disposition in favor of the insurer. In Multicare Health Center v. Progressive Marathon Insurance Company, the Court held that the trial court abused its discretion by failing to adequately consider the factors set forth in Dean v. Tucker, 182 Mich App 27 (1990), before imposing the extreme sanction of barring the plaintiffs’ expert and corporate representative witnesses — a sanction that effectively ended the case. The decision reinforces the principle that when a discovery sanction amounts to dismissal, trial courts must engage in rigorous analysis and genuinely consider lesser sanctions before striking witnesses whose testimony is essential to the plaintiff’s case.
- Facts
Multicare Health Center and Groesbeck RX filed a first-party no-fault lawsuit against Progressive Marathon Insurance Company on August 20, 2023, seeking to recover fees for medical treatment they provided to Veronica Ginn following her involvement in an auto accident.
From the outset, the case was plagued by scheduling difficulties and communication delays. Discovery deadlines were adjourned multiple times, and both sides substituted counsel midway through the litigation. Plaintiffs were slow to produce initial disclosures and discovery responses, leading to a stipulated order compelling compliance.
The critical dispute centered on depositions. Defendant sought to depose three witnesses: Dr. Allan Schwartz (Multicare’s corporate representative), Ali Saad (Groesbeck’s corporate representative), and Dr. Zenith Khan (an expert on treatment necessity). Defendant’s counsel attempted to schedule depositions beginning in July 2024, but communications between the parties — complicated by the involvement of a third attorney representing the witnesses personally — resulted in a series of missed connections, delayed responses, and ultimately failed deposition dates.
On August 6, 2024, the trial court granted defendant’s motion to compel the depositions, ordering they take place within 30 days (by September 5, 2024). Despite continued scheduling efforts involving plaintiffs’ counsel and the witnesses’ personal attorney, the depositions never occurred within the deadline. When the witnesses’ personal attorney requested to reschedule on the day depositions were set, defendant moved to dismiss or, alternatively, to strike the witnesses.
On September 17, 2024, the trial court granted defendant’s request to strike all three witnesses from testifying at trial, citing the Dean factors in a brief paragraph. The court found the violations appeared willful, that plaintiffs repeatedly failed to comply with discovery, that defendant was prejudiced, and that no lesser sanction would serve the interests of justice. Plaintiffs’ motion for reconsideration was denied.
With the three witnesses barred, defendant successfully moved for summary disposition, arguing that plaintiffs could not establish the reasonableness and necessity of the medical treatment without these witnesses’ testimony. Plaintiffs’ counsel failed to appear at the summary disposition hearing on March 12, 2025, and the trial court granted summary disposition that same day.
- Issues
The central question was whether the trial court abused its discretion by striking plaintiffs’ three witnesses as a discovery sanction without adequately analyzing the Dean factors — particularly when the sanction effectively resulted in dismissal of the entire case.
- Holding
The Court of Appeals reversed, holding that the trial court abused its discretion. The Court found the trial court’s analysis of the Dean factors to be conclusory and inadequate in several important respects.
First, the trial court overstated plaintiffs’ history of noncompliance. The court cited late initial disclosures as evidence of a pattern, but the parties had stipulated to an extension of that deadline, effectively making the disclosures timely. The court also treated plaintiffs’ failure to respond to defendant’s scheduling emails as discovery violations, but the Court of Appeals noted that many of those communications predated any formal deposition notices and that failing to promptly return scheduling emails — while poor practice — is not itself a violation of any court rule.
Second, the trial court failed to explain how defendant was actually prejudiced by the delayed depositions. The Court found it insufficient to simply state that prejudice existed without articulating what that prejudice was.
Third, and most critically, the trial court failed to meaningfully consider lesser sanctions. While the court stated that no lesser sanction would serve the interests of justice, it did not identify what those lesser sanctions might be — such as attorney fees, cost assessments, or other penalties short of case-ending consequences. The Court of Appeals emphasized that when a sanction effectively amounts to dismissal, trial courts must consider other potential sanctions on the record before entering such an order.
The Court acknowledged that plaintiffs did violate the August 6 order to compel by failing to produce their witnesses within 30 days, but found that this single violation did not justify the extreme sanction of striking all three witnesses — particularly without adequate consideration of alternatives.
- Conclusion
The Court of Appeals reversed the trial court’s order striking plaintiffs’ witnesses, vacated the grant of summary disposition to Progressive Marathon, and remanded the case for further proceedings. The Court found plaintiffs’ motion for reconsideration moot given the reversal.
- What Does This Mean for Our Clients?
This decision has important implications for anyone involved in no-fault litigation — whether you are a medical provider seeking reimbursement or an individual pursuing benefits. Here is what you should know:
Discovery sanctions must be proportional. Trial courts cannot jump to the most extreme sanction — striking witnesses or dismissing cases — without first genuinely considering lesser alternatives like attorney fees or cost penalties. If your case was dismissed because of a discovery issue, the court was required to explain on the record why lesser sanctions were inadequate.
One missed deadline does not justify dismissal. The Court of Appeals distinguished between poor communication practices and actual violations of court orders. While failing to promptly respond to scheduling emails is not ideal, it is not the same as willfully defying a court order. Courts must look at the totality of the circumstances and not conflate inconvenience with sanctionable misconduct.
The Dean factors require real analysis, not lip service. Simply reciting the Dean factors and checking them off in conclusory fashion is not enough. The trial court must demonstrate on the record that it carefully weighed each factor and considered all available options. This decision makes clear that appellate courts will scrutinize whether the analysis was substantive.
Medical providers have the right to be heard. No-fault cases involving medical providers often hinge on expert testimony about the reasonableness and necessity of treatment. This decision protects providers from losing their entire case over scheduling difficulties that could be addressed through less drastic measures.
If your no-fault case has been dismissed or your witnesses have been barred due to discovery issues, contact The Seva Law Firm. Cases like Multicare v. Progressive Marathon demonstrate that trial courts are required to consider all options before ending your case, and the appellate courts are watching.
Pratheep Sevanthinathan is the owner and managing attorney of The Seva Law Firm, located at 100 W. Big Beaver Rd, Suite 500, Troy, MI 48084. He can be reached at (248) 385-5704.
This article is for informational purposes only and does not constitute legal advice. Every case is different, and past results do not guarantee future outcomes.