Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
View Text Opinion Full PDF Opinion
Disciplinary proceedings against a dentist; Violation of MCL 333.16221(a) (negligence or failure to exercise due care) & (b)(i) (incompetence); Failure to take x-rays; Incomplete pulpotomies; Failure to maintain records of patient referrals; MI Admin Code, R 338.11120; Whether the administrative law judge’s (ALJ) decision was supported by competent, material, & substantial evidence on the whole record; Board of Dentistry’s Disciplinary Subcommittee (DSC); Standard of care (SOC); Public Health Code (PHC)
Rejecting respondent-dentist’s argument that “the ALJ’s decision was not supported by competent, material, and substantial evidence on the whole record[,]” the court affirmed the DSC’s final order, which found that respondent violated MCL 333.16221(a) and (b)(i). The case arose from his treatment of a child, HT. After a “hearing, the ALJ entered a proposal for decision, concluding that, by a preponderance of the evidence, respondent’s conduct fell below the [SOC] by (1) failing to take x-rays, (2) failing to complete the pulpotomies, and (3) failing to maintain copies of the referrals in the child’s chart.” The DSC denied respondent’s exceptions and issued the final order. It ordered him to “be placed on probation for a minimum of one day, not to exceed six months, during which he must complete 12 hours of continuing education, comply with the” PHC, and pay a $2,500 fine. As to the failure to take x-rays, in “addition to evidence of respondent’s lack of experience, the ALJ relied on” the testimony of petitioner’s expert (Dr. J) “about the necessity of x-rays before pulpotomies in her determination.” The court concluded that “the ALJ did not exhibit youth bias and her findings regarding respondent’s lack of experience and the x-rays were amply supported by the record.” As to incomplete pulpotomies, “the ALJ did not find credible respondent’s explanation that he had known all along that the pulpotomies were incomplete and that a specialist should finish them. In doing so, the ALJ relied on the clinical notes and [J’s] testimony. The evidence amply supported these findings.” Finally, the court rejected “respondent’s argument that the expressio unius negative-implication maxim should lead [it] to conclude, as a matter of law, that Rule 338.11120’s silence on the issue of maintaining records of referrals means that failure to maintain such records cannot violate the [SOC] under MCL 333.16221(a). A licensed healthcare professional can violate the [PHC] by failing to exercise due care or by violating an administrative rule[.]” The court also rejected his claim “that the DSC’s order violates his substantive due-process rights because Rule 338.11120 is silent on the issue of maintaining referrals in patients’ charts and thus fails to provide adequate notice that doing so is required.” It noted that he was “not accused of violating Rule 338.11120; rather, [his] discipline was for failure to comply with the [SOC] as required by MCL 333.16221.”
Age & gender discrimination in employment claims; Whether defendant-employer treated plaintiff less favorably than a similarly situated male employee; Whether plaintiff met the “heightened standard” in a workforce reduction case; Pretext; Hostile work environment claim; Timeliness; Equal Pay Act (EPA) claim
[This appeal was from the WD-MI.] The court affirmed summary judgment for defendant-employer (Clariant Plastics) on plaintiff-Hayes’s age discrimination and hostile work environment claims but held that she established genuine issues of material fact as to her gender-discrimination and unequal-pay claims. Hayes worked as a warehouse logistics clerk at Clariant for 25 years until she was fired. Clariant contended she was laid off as part of a workforce reduction. She sued for discrimination, violation of the EPA, and hostile work environment. The district court granted Clariant summary judgment on all claims. As to Hayes’s age discrimination claim, the court on appeal found that she was unable to show that she was “replaced by someone outside her protected class or treated less favorably than a similarly situated employee outside her protected class.” Turning to the gender discrimination claim, the central dispute was whether Clariant treated Hayes “less favorably than a similarly situated male employees.” The district court ruled that Hayes and the retained male employee (P) were not similarly situated “because ‘he had production experience, a forklift license, and supervisory skills.’” But it did not explain why these things “were relevant to the similarly situated analysis.” The court noted it was not necessary for Hayes to show an “‘exact correlation’” with the employee receiving favorable treatment; she only needed to show that they both were “‘similar in all of the relevant aspects.’” There was sufficient evidence for a jury to find that the two were “similarly situated in all relevant aspects of their warehouse jobs.” Hayes also met the “heightened standard” in a workforce reduction case with her extensive experience and her superior employment record. She also may “show that she was singled out by presenting evidence of a discriminatory atmosphere.” Viewed in the light most favorable to her, the record “reveals a climate of pervasive sexual harassment.” As to the question of pretext, the court determined that “a reasonable juror could conclude that Clariant’s proffered reason lacked a basis in fact or did not actually motivate the company’s decision to fire Hayes.” The court added that “the district court also erred when it concluded that Hayes did not establish a prima facie case under the EPA.” A reasonable juror could find that she and P “performed equal work.” And her pay rate when she was discharged was over $5 less per hour than P’s pay rate. But the court held that her hostile work environment claim was time-barred. Lastly, it remanded for the district court to reconsider whether to assume supplemental jurisdiction over her state claims. Affirmed in part, reversed in part, and remanded.
Constitutionality of MCL 750.543m; Making a threat of terrorism under MCL 750.543m(1)(a); “Act of terrorism”; “True threats” of violence; Counterman v Colorado; People v Byczek; Recklessness; Effect of the lack of an intent element in a statute; Elonis v United States; The constitutional-doubt canon of statutory interpretation; Model jury instructions for making a terrorist threat; M Crim JI 38.4
Holding on remand from the Supreme Court that MCL 750.543m(1)(a) is not facially unconstitutional, the court affirmed the trial court’s order denying defendant’s motion to dismiss the charges against him (making a terrorist threat) and remanded to the trial court with instructions as to use of the model jury instructions. In a prior appeal, the court concluded that MCL 750.543m was facially unconstitutional in light of Counterman. The Supreme Court remanded with the directive “to consider the proper interpretation of MCL 750.543m in light of MCL 750.543z and the constitutional-doubt canon of statutory interpretation.” As a preliminary matter on remand, the court found that “the trial court abused its discretion by dismissing this case without prejudice while an application for leave was pending in our Supreme Court.” As to the merits, the court noted that, “under Elonis, the lack of an express mens rea in MCL 750.543m(1)(a) is not dispositive as to the statute’s constitutionality because the statute should be broadly interpreted to include a mens rea requirement even though the statute is otherwise silent. In turn, under the constitutional-doubt canon of statutory interpretation, it is ‘fairly possible’ to construe MCL 750.543m(1)(a) as constitutional by interpreting [it] to include a mens rea requirement that does not fall foul of the decision in Counterman.” As such, the court construed the statute “as requiring that the prosecution prove (1) that the defendant recklessly threatened (2) to commit an act of terrorism and (3) that the threat was communicated to another person. The term ‘recklessly’ means that the defendant ‘consciously disregarded a substantial risk that his [or her] communications would be viewed as threatening violence.’” Finally, the court concluded that because the model jury instruction (M Crim JI 38.4(3)) “only requires that the prosecution must prove that an objectively reasonable person would understand that his message was a true threat, not that the defendant must be subjectively aware that his message was a true threat,” it is contrary to law. As such, on remand, “the trial court should not use the model jury instruction in this case as written. Rather, if it uses the model jury instruction it should adapt it so as to ‘give additional instructions on applicable law not covered by the model instructions.’ Specifically, and in either event, consistent with our construction of MCL 750.543m(1)(a), [it] should instruct the jury that the prosecution must prove [defendant] recklessly threatened to commit an act of terrorism, i.e., that he ‘consciously disregarded a substantial risk that his [or her] communications would be viewed as threatening violence.’”
Breach of contract; Whether there was a breach; Damages element; Fraudulent misrepresentation; Deschane v Klug; Tortious interference with a contract; Knight Enters, Inc v RPF Oil Co
The court held that plaintiff-Mach3 Medical’s breach of contract claim failed because there was no breach and it suffered no damages. Its fraudulent misrepresentation claim also failed, and it did not properly allege a tortious interference with a contract claim. Thus, the court affirmed summary disposition for defendants-Envision Medical Group (Envision), VillageMD Eastern Michigan (VillageMD), and VMD Primary Providers Eastern Michigan (VMD). The case arose from two agreements, including a Client Services Agreement (CSA), that Mach3 entered into with Envision. “Mach3’s performance under the contract was contingent on performance by the client—first Envision, and then VillageMD and VMD.” The court concluded the trial court correctly determined “that no breach of contract occurred both because the contract did not require the client to order services from Mach3, and because Mach3 never suffered damages because it never performed services under the contract.” As to the fraudulent misrepresentation claim, Mach3 asserted “that Envision fraudulently promised that VillageMD and VMD would take over the CSA following the completion of Envision’s transfer of assets to VillageMD and VMD. Mach3 claims that these representations were false and that they were made intentionally or recklessly, with the intent that Mach3 would rely on them to its detriment” and that it did so. The court found no merit in this argument. As the trial court found, Mach3 agreed to the “transfer of the CSA from Envision to VillageMD and VMD.” The court noted that “Envision’s representation that the CSA would be transferred to VillageMD and VMD was true, and Mach3 was clearly aware of it. That VillageMD and VMD did not ultimately seek services from Mach3 does not mean that Envision fraudulently misrepresented anything related to the actual assignment of the CSA.” Finally, as to the tortious interference claim, “once the asset transfer was complete, VillageMD and VMD were parties to the contract and could not tortiously interfere with it. And because none of the defendants . . . were contractually obligated to supply work to Mach3, VillageMD and VMD could not have interfered with the contract before the asset transfer to Mach3’s detriment.” The court added that nothing about the “asset transfer process indicates that VillageMD and VMD intentionally committed a wrongful act or engaged in unlawful conduct designed to interfere with the CSA.”
Whether the offense of prisoner in possession of a controlled substance (PPCS) imposes strict liability; MCL 800.281(4); People v Ramsdell; “Intent, knowledge, or recklessness”; MCL 8.9(3) & (9); “Plainly imposes”; Recklessness standard
Holding that “MCL 800.281(4) does not ‘plainly impose’ strict liability,” and that to establish a violation of the statute, “the prosecution must prove that a defendant acted with ‘intent, knowledge, or recklessness’ as required by MCL 8.9(3)[,]” the court reversed the decision of the Court of Appeals and remanded to the trial court. Defendant, a prisoner, was charged with PPCS after he picked up a crumpled piece of paper (containing a controlled substance) that was dropped in his cell by another prisoner. The trial court denied his motion requesting that the jury instructions include a mens rea element for the charged offense of PPCS. The Court of Appeals affirmed, holding that PPCS is a strict-liability offense. The court disagreed, finding “the Ramsdell Court’s reasoning for concluding that PPCS is a strict-liability offense” to be “inconsistent with the plain language of MCL 8.9.” Contrary to “Ramsdell, the ‘mere absence’ of the culpable mental state in MCL 800.281(4) is insufficient to construe PPCS as a strict-liability offense.” The plain “language of MCL 8.9(9) supersedes the Ramsdell Court’s interpretation of MCL 800.281(4).” Rather than “amending individual statutes, MCL 8.9 was enacted to ensure that where no mens rea was specified, MCL 8.9 would apply.” The Court of Appeals “erred by holding that MCL 800.281(4) plainly imposes strict liability.” It also erred in “concluding that MCL 8.9(3) was inapplicable.” The elements “of PPCS are ‘established only if a person acts with intent, knowledge, or recklessness.’” The court concluded that “to establish a violation under MCL 800.281(4), the prosecution is required to prove—at a minimum—that a defendant acted with recklessness.” Dissenting, Justice Zahra concluded that, “[c]onsidering MCL 8.9 and the full context of MCL 800.281 . . . the Legislature plainly imposed strict liability for PPCS. If MCL 800.281(4) is not a strict-liability offense, it is hard to imagine any offense for which the Legislature intended to plainly impose strict liability without expressly saying as much in the statute.”
Sentencing for first-degree murder; People v Taylor
In an order in lieu of granting leave to appeal the Court of Appeals judgment (see eJournal # 83184 in the 3/4/25 edition), the court vacated defendant’s first-degree murder sentences and remanded the case to the trial court for resentencing in light of Taylor. It denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented. It granted the motion to remand in part, to the extent that defendant requested to be resentenced, and denied it in all other respects.
Right to present a defense; Not guilty by reason of insanity (NGRI) defense; MCL 768.20a(1); Legal insanity; MCL 768.21a(1); People v Carpenter; Guilty but mentally ill (GBMI); MCL 768.36(1); Whether an NGRI or GBMI instruction was warranted by the evidence; MCL 768.29a(2); Expert testimony; MRE 702; Waiver; Right to a jury trial; “Criminally responsible”; Ineffective assistance of counsel; Failure to make a futile objection; Waiver of right to testify; Comparing People v Boyd; Distinguishing Rock v Arkansas; Competency to stand trial; MCL 330.2022(1); MCR 6.125(B); Bona fide doubt as to competency; People v Kammeraad; Distinguishing People v Harris
The court held that the trial court did not err by prohibiting the admission of evidence about defendant’s mental health treatment or precluding him from raising a NGRI defense, and defense counsel was not ineffective. He was convicted of multiple counts of CSC III for incest with his adult daughter. On appeal, the court first found that the trial court’s “finding regarding culpability essentially functioned as a finding that defendant was competent to stand trial and that the NGRI defense could not be raised at trial, which did not deny [his] right to a trial by jury or otherwise violate [his] presumption of innocence.” Further, even assuming he “did not waive the NGRI defense, the evidence did not warrant an NGRI instruction.” In view of the trial “court’s discussion of the issue . . . and considering the lack of evidence supporting defendant’s position . . . the trial court did not deprive defendant of his right to present an NGRI defense.” Defendant did “not offer any expert testimony to support his position and appear[ed] to rely solely on his own proposed testimony, as well as the evidence relating to his guardianship and civil-commitment proceeding.” This testimony “was not sufficient to support his NGRI defense.” Further, remand was unnecessary because: (1) the record was “sufficiently developed to allow for appellate review of the trial court’s rulings, and defendant’s testimony was insufficient to support his NGRI defense,” and (2) the documentation and testimony he proposed “to present to the trial court [did] not support his NGRI defense.” In addition, the trial “court did not err in precluding the admission of evidence relating to defendant’s mental health, treatment, hospitalization, or the guardianship.” Further, his “trial counsel adequately investigated the [NGRI] issue by requesting an independent examination, and was not deficient for failing to pursue an insanity defense after defendant’s own independent expert concluded, only a month before trial, that defendant was competent and could be found criminally responsible.” The court also held that the trial court’s ruling precluding his testimony about his mental health history did not deprive him of his right to testify at trial, or render his waiver of this right involuntary. Finally, the trial court did not err by finding defendant’s competency had been thoroughly explored before trial. Affirmed.
Ineffective assistance of counsel; Drug profile evidence; People v Murray; Possession with intent to deliver meth; Great weight of the evidence; People v. Lacalamita; People v Knepper; Sentencing; Proportionality; “Unusual circumstances” required to overcome the presumption that a within-guidelines sentence is proportionate; People v Burkett
Rejecting defendant’s ineffective assistance of counsel claim, the court held that the trial court did not abuse its discretion in denying his motion for a new trial. It also found no abuse of discretion in the admission of drug profile evidence. Further, the court disagreed with defendant’s claim that the verdict convicting him of possession with intent to deliver meth was against the great weight of the evidence. Lastly, it held that the trial court did not abuse its discretion in sentencing him as a fourth-offense habitual offender to 84 to 300 months. He claimed that his trial counsel was ineffective for failing to investigate and call a witness (P) who “would testify at trial that defendant did not sell drugs from” witness-T’s home and that defendant was simply a drug user. The court concluded “the trial court did not clearly err in its factual findings that [P’s] affidavit failed to demonstrate that defense counsel’s performance was deficient.” In addition, the affidavit did not “support the underlying factual predicate for the claim of ineffective assistance of counsel and” show a reasonable probability of a different outcome. P stated “that she saw defendant three times in a two- to three-month period. [P] then stated that, during these limited contact periods, she did not see [him] sell drugs. [P] then seemingly relied on hearsay, specifically the fact she never ‘heard’ that defendant sold drugs, to conclude that he was merely a drug user and not a drug dealer. But it was apparent that [P] had isolated contact with defendant and could not account for his actions on a daily or monthly basis. And, [P] never disclosed her purpose at [T’s] home; whether she purchased drugs there; if so, the types of drugs purchased; and the impact of drug consumption, if any, on her perception and memory. Further, when the search warrant was executed, [P] was in a back bedroom while defendant was apprehended in the dining area. In her affidavit, [P] failed to disclose her degree of contact and conversation with defendant when they were both at [T’s] home and whether they were even in the same room. Indeed, if defendant was merely a street-level dealer selling drugs simply to fund his own habit, his infrequent sales would not be apparent to an acquaintance with whom he had few contacts, such as” P. The court added that her failure to see him “engaged in a drug transaction and her opinion that [he] was merely a drug user did not” establish deficient performance or prejudice. Affirmed.
PIP benefits action; Admissibility of evidence; Relevance; MRE 401; Penalty interest; MCL 500.3142(2); Williams v AAA MI; Good faith & reasonableness; Davis v Citizens Ins Co of Am; Morales v State Farm Mut Auto Ins Co; Hearsay; Party-opponent admission; Evidence of impeachment under MRE 613; People v Lundy; Jury instructions; Supplemental instructions; Bouverette v Westinghouse Elec Corp; Exacerbation of a preexisting injury; Plaintiff’s burden of proof; Mootness
The court held that defendant-insurer’s evidentiary and jury instruction challenges were meritless. It also found moot defendant’s challenge to the trial court’s striking of its experts’ deposition testimony. The trial court entered an order, after a jury verdict, awarding plaintiff PIP benefits for treatment of injuries defendant’s insured (nonparty-B) sustained in a rear-end collision. It also awarded penalty interest. On appeal, the court rejected defendant’s evidentiary challenges as meritless, concluding the trial court did not err by finding: (1) defendant’s claims representative’s testimony was irrelevant even as to the issue of penalty interest; (2) a letter written by B’s counsel before the accident occurred was not admissible as a party-opponent admission; and (3) documents related to B’s Social Security Disability Insurance were inadmissible and irrelevant. The court also rejected defendant’s challenges to two of the trial court’s rulings pertaining to jury instructions. First, “the trial court did not err by declining to provide defendant’s requested jury instruction.” And even if “there was any error, defendant has failed to show how any ‘error resulted in such unfair prejudice to the complaining party that the failure to vacate the jury verdict would be inconsistent with substantial justice.’” Second, because plaintiff’s “requested instruction, as given, properly instructed the jury regarding the applicable law and because the standard instruction does not fully address the situation of an aggravation of a preexisting injury, the trial court did not abuse its discretion by providing the special instruction.” Finally, the court rejected defendant’s contention that the trial court erred when it struck the deposition testimony of its three experts. Defendant failed “to explain, assuming any error occurred, how the requested relief of a new trial” was warranted. “The trial court struck the experts’ deposition testimony and allowed defendant to either (1) proceed to trial without the experts, or (2) retake the testimony. Defendant opted for the second option, and the experts testified in person at trial. Importantly, the trial court did not limit how the experts could testify in this subsequent proceeding.” As such, the issue was moot as “the requested remedy of a new trial would accomplish nothing that did not occur already. The experts would simply testify again, either via de bene esse depositions or live at trial.” Affirmed.
Auto negligence; Tort liability for non-economic loss under the No-Fault Act (NFA); MCL 500.3135; “Serious impairment of body function”; McCormick v Carrier; The injured person’s general ability to lead his or her normal life; “Permanent serious disfigurement”; Fisher v Blankenship
Holding that the record did not establish a question of fact as “to ‘serious impairment of body function’ or ‘permanent serious disfigurement’ for the purposes of MCL 500.3135[,]” the court affirmed summary disposition for defendants in this action under the NFA. The case arose from a vehicle-pedestrian accident. The court agreed with plaintiff (and defendants seemed to concede on appeal) that “the trial court erred by suggesting that the element of ‘affects the injured person’s general ability to lead his or her normal life’ is an element of ‘permanent serious disfigurement.’” But the court agreed with defendants that plaintiff did not create “a genuine issue of material fact regarding either ‘serious impairment of body function’ or ‘permanent serious disfigurement.’” As to the former, the third element was at issue. The injured child (SGM) testified at “her deposition that she was unable to wear her preferred clothes for about two months after the accident because some of her skin was bandaged.” In addition, she indicated “she was unable to ‘hang out with [her] friends as often’ as she preferred during that time. However, these effects of the accident, while unfortunate, were only temporary.” The court found that “a two-month period of having her life affected in such a manner does not rise to the level of significance required by MCL 500.3135(5)(c)[.]” Although a two-month period in some cases may be sufficient, “the mere fact that SGM had to temporarily wear pants and could no longer spend as much time with her friends as she preferred did not affect her ‘general ability’ to lead her normal life.” She also did not identify any other record evidence that her impairment did so. As to a permanent serious disfigurement, the only evidence plaintiff presented “was a single, grainy photograph of SGM’s leg that, upon close inspection, indicates that part of her shin is a different color than the” rest of her leg. The photo submitted to the trial court was apparently “in black and white, rendering it even more difficult to identify whether and to what extent” the leg was scarred. The photo was also undated. The court concluded that it did “not reflect a ‘permanent serious disfigurement’ for the purposes of MCL 500.3135. Even considering the colorized version” of it presented to the court, “the scar merely appears to be a slightly different color than the surrounding skin.” The court found that it was “not conspicuous.”