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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.

 

 

Case Summary

Includes a summary of one Michigan Supreme Court opinion under Litigation/Malpractice.


Cases appear under the following practice areas:

  • Criminal Law (2)

    Full Text Opinion

    e-Journal #: 75886
    Case: People v. Thaqi
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Riordan, M.J. Kelly, and Shapiro
    Issues:

    Motion for a directed verdict & challenge to the sufficiency of the evidence on an AWIGBH charge; Self-defense; Prosecutorial misconduct; Questioning defendant’s silence in violation of his Fifth Amendment right against self-incrimination; Voir dire; Jury instructions; “Imminent”; Carrying a dangerous weapon with unlawful intent (CDWUI)

    Summary:

    The court held that that there was sufficient evidence to support defendant’s AWIGBH conviction and rebut his self-defense claim, and the trial court did not err by denying the motion for a directed verdict. Also, his prosecutorial misconduct claim failed. Further, the trial court did not err by refusing to ask the prospective jurors a proposed question he submitted where it was not necessary to uncover potential bias. Finally, the additional instruction given by the trial court as to the meaning of “imminent” did not require reversal. He was convicted of AWIGBH, felonious assault, CDWUI, FIP and felony-firearm. He was the manager of the restaurant where the incident occurred. Defendant did not dispute that there was sufficient evidence to establish the elements of AWIGBH beyond a reasonable doubt. It was clear that an assault occurred, and the multiple shots he fired in victim-L’s “direction without warning allowed the jury to reasonably infer an intent to do great bodily harm.” But he argued that the prosecution failed to rebut his claim of self-defense. The evidence supported the jury’s conclusion that his actions were “not necessary to prevent the imminent death of or imminent great bodily harm to himself" or another individual. At trial, he was “adamant that he acted to protect the restaurant’s customers. Defendant specifically testified that he was concerned about customers going through the restaurant’s drive-thru.” However, at the time he shot L, “no customers were present in the drive-thru or in the rear parking lot where the shooting occurred. There were a couple customers within the restaurant, but” L was not near them. Further, “the events both inside and outside of the restaurant suggest that defendant was acting out of anger toward [L] rather than a reasonable belief that deadly force was necessary to prevent imminent harm to others.” Thus, based on the prosecution’s proofs, the jury reasonably determined that “defendant and the restaurant’s customers were not faced with imminent death or great bodily harm.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 75894
    Case: People v. Word
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Fort Hood, Markey, and Gleicher
    Issues:

    Lay witness testimony that the victim was cognitively impaired; MRE 701; People v Cole; Expert testimony; MRE 702; Harmless error; Ineffective assistance of counsel; Sufficiency of the evidence that the victim was “mentally incapable” to support a CSC III conviction under MCL 750.520d(1)(c); MCL 750.520a; People v Breck

    Summary:

    The court held that the trial court did not err in allowing victim-YB’s mother (B) to express a lay opinion that YB was cognitively impaired, and while it erred in permitting a forensic interviewer (S) to testify to the same, this was harmless given the properly admitted evidence about YB’s mental capacity. Defense counsel was not ineffective for failing to raise a futile objection, and the court held that the evidence that YB was mentally incapable was sufficient to support defendant’s CSC III conviction under MCL 750.520d(1)(c). It found that B “was qualified to opine regarding YB’s cognitive abilities. Lay witnesses have long been permitted to offer opinions regarding a person’s sanity.” Her testimony was rationally based on her perception – YB had lived with B for approximately 38 years. She “was familiar with YB’s school experiences and the challenges that YB faced in performing normal activities of daily life.” Additionally, her “testimony was not objectionable simply because it embraced ‘an ultimate issue to be decided by the trier of fact.’” But in admitting S’s “testimony under MRE 701, the trial court blurred the distinction between the specialized knowledge of an expert, and the rational perceptions of a lay witness. [S’s] opinions constituted expert testimony in disguise” and were improperly admitted given the failure to lay a proper foundation and the trial court’s failure “to exercise its gatekeeping powers.” However, the error was harmless given B’s extensive testimony about “YB’s cognitive disability, and because YB testified at length, the jury had an opportunity to make its own assessment. YB had been in special education throughout her schooling, did not drive, had a guardian, and had never before failed to come home after work. Her supervisor” at work testified that YB was hired “decades ago as part of an employment program for children with mental disabilities. She described YB as capable of very simple tasks and that she required specific instructions and repetition.” As to the sufficiency of the evidence, there was direct evidence that YB “was unable to understand the physical act and appreciate the act’s nonphysical factors.” Although she said “she understood what was happening, the rest of her testimony, what she said and how she said it, was sufficient for a rational jury to infer that YB was unable to appraise the nature of her conduct.” Affirmed.

    Full Text Opinion

  • Family Law (1)

    Full Text Opinion

    e-Journal #: 75893
    Case: Upadhyay v. Dwivedi
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Riordan, M.J. Kelly, and Shapiro
    Issues:

    Divorce; Summary disposition under MCR 2.116(C)(6); Applicability even when the other action is in a foreign court; “Same claim”

    Summary:

    Rejecting plaintiff-wife’s argument that the divorce action filed by defendant-husband in India did not involve the “same claim” as the divorce action she filed here, the court affirmed summary disposition for defendant under MCR 2.116(C)(6). The trial court correctly reasoned that both actions “involve the same parties and the same claim, i.e., a request for dissolution of the marriage.” Plaintiff argued that they did not involve the same claim “because the two jurisdictions grant divorces on entirely different bases. While Michigan has a no-fault divorce law, the Hindu Marriage Act requires proof of fault to obtain a divorce.” Thus, she asserted that the two courts “will rely on different operative facts in adjudicating the parties’ divorce. However, while Michigan spouses are not required to prove fault to obtain divorce, fault may be relevant to the divorce proceedings.” The court further noted that “MCR 2.116(C)(6) does not turn on whether the underlying relevant facts are the same in both actions, but whether the actions involve the same parties and the same claim.” Plaintiff further contended that the two cases were not the same claim because she sought division of the marital property, while defendant’s petition in the India action did not. But while it was “possible that the India court will not resolve issues of marital property, this does not change the fact that both actions involve the same underlying claim.” The court rejected her contention “that the possibility that the India case will not resolve those matters entitles her to proceed in a parallel Michigan case or that awaiting the India court’s judgment constitutes a substantial injustice. Plaintiff retains the right to oppose recognition and enforcement of the India divorce decree.” But whether that “decree should be recognized and enforced in Michigan can only be determined after it has been issued.” The court’s decision was without prejudice to her “bringing an action to resolve any property disputes not resolved by the India divorce decree or opposing recognition and enforcement of that decree in Michigan.”

    Full Text Opinion

  • Healthcare Law (1)

    Full Text Opinion

    This summary also appears under Insurance

    e-Journal #: 75900
    Case: Spectrum Health Hosps. v. Farm Bureau Gen. Ins Co. of MI
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Borrello, Servitto, and Stephens
    Issues:

    Whether plaintiff-healthcare provider had standing; Validity of an assignment; Applicability of Jawad A Shah, MD, PC v State Farm Mut Auto Ins Co; Use of “all”; Assignment of the right to no-fault penalty interest & attorney fees; Lakeland Neurocare Ctrs v State Farm Mut Auto Ins Co; Attorney fees under MCL 500.3148(1); Moore v Secura Ins

    Summary:

    Concluding that Shah did not apply, the court rejected defendant-insurer’s assertion that plaintiffs-healthcare providers lacked standing to sue it for unpaid charges for its insured’s (S) medical treatment. Under S’s assignments, plaintiffs took all rights S had at the time of the assignments. The court also rejected defendant’s argument that S could not assign them his right to no-fault penalty interest and attorney fees. But the trial court did not err in denying plaintiffs attorney fees under MCL 500.3148(1). While defendant relied on Shah in making its standing argument, no assignments here “were obtained long after the services were provided in order to avoid summary disposition, and plaintiffs did not file any supplemental pleadings. More importantly, the last assignment” S signed, on 11/23/18 (which defendant specifically challenged) contained the same language as those S signed on 11/17/17, 1/8/18, 3/6/18, and 10/18/18. Further, the plain language of the assignments made it “clear that plaintiffs, as assignees, take all rights that [S] had at the time . . . .” Thus, defendant was properly denied summary disposition as to “the scope of the assignments and their impact on plaintiffs’ standing.” The trial court also did not err in denying its summary disposition motion as to S’s alleged “inability to assign his right to no-fault penalty interest and attorney fees to plaintiffs.” Covenant made it clear that insureds “are free to assign all of their rights to a healthcare provider." But as to attorney fees, when defendant decided not to pay the charges, its question as to whether they “were reasonable, and what criteria may be used to determine whether those charges were reasonable, was an ongoing source of litigation in” the court and the Supreme Court. Thus, it was not unreasonable for it “to deny payments while it awaited the conclusion of those issues because they presented legitimate legal questions.” Affirmed.

    Full Text Opinion

  • Insurance (1)

    Full Text Opinion

    This summary also appears under Healthcare Law

    e-Journal #: 75900
    Case: Spectrum Health Hosps. v. Farm Bureau Gen. Ins Co. of MI
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Borrello, Servitto, and Stephens
    Issues:

    Whether plaintiff-healthcare provider had standing; Validity of an assignment; Applicability of Jawad A Shah, MD, PC v State Farm Mut Auto Ins Co; Use of “all”; Assignment of the right to no-fault penalty interest & attorney fees; Lakeland Neurocare Ctrs v State Farm Mut Auto Ins Co; Attorney fees under MCL 500.3148(1); Moore v Secura Ins

    Summary:

    Concluding that Shah did not apply, the court rejected defendant-insurer’s assertion that plaintiffs-healthcare providers lacked standing to sue it for unpaid charges for its insured’s (S) medical treatment. Under S’s assignments, plaintiffs took all rights S had at the time of the assignments. The court also rejected defendant’s argument that S could not assign them his right to no-fault penalty interest and attorney fees. But the trial court did not err in denying plaintiffs attorney fees under MCL 500.3148(1). While defendant relied on Shah in making its standing argument, no assignments here “were obtained long after the services were provided in order to avoid summary disposition, and plaintiffs did not file any supplemental pleadings. More importantly, the last assignment” S signed, on 11/23/18 (which defendant specifically challenged) contained the same language as those S signed on 11/17/17, 1/8/18, 3/6/18, and 10/18/18. Further, the plain language of the assignments made it “clear that plaintiffs, as assignees, take all rights that [S] had at the time . . . .” Thus, defendant was properly denied summary disposition as to “the scope of the assignments and their impact on plaintiffs’ standing.” The trial court also did not err in denying its summary disposition motion as to S’s alleged “inability to assign his right to no-fault penalty interest and attorney fees to plaintiffs.” Covenant made it clear that insureds “are free to assign all of their rights to a healthcare provider." But as to attorney fees, when defendant decided not to pay the charges, its question as to whether they “were reasonable, and what criteria may be used to determine whether those charges were reasonable, was an ongoing source of litigation in” the court and the Supreme Court. Thus, it was not unreasonable for it “to deny payments while it awaited the conclusion of those issues because they presented legitimate legal questions.” Affirmed.

    Full Text Opinion

  • Litigation (1)

    Full Text Opinion

    This summary also appears under Malpractice

    e-Journal #: 75972
    Case: Bowman v. St. John Hosp. & Med. Ctr.
    Court: Michigan Supreme Court ( Opinion )
    Judges: Clement, McCormack, Bernstein, Cavanagh, and Welch; Concurring in the judgment - Viviano; Dissent - Zahra
    Issues:

    Medical malpractice; The two-year statutory limitations period; MCL 600.5805(8); Accrual; De Haan v Winter; The discovery rule; MCL 600.5838a(2); Solowy v Oakwood Hosp Corp; Gebhardt v O’Rourke; Moll v Abbott Labs; Diligence; Dyke v Richard; Tolling; Haksluoto v Mt Clemens Reg’l Med Ctr; Notices of intent (NOIs)

    Summary:

    Holding that the present evidentiary record did not show that plaintiff sent the NOIs to defendants-doctor and hospital more than six months after she discovered or should have discovered the existence of her claim, the court reversed the Court of Appeals’ judgment and remanded. Plaintiff sued defendants for medical malpractice after discovering that her mammogram may have been misdiagnosed and that she had breast cancer. The trial court rejected defendants’ argument that the complaint was untimely and denied their motion for summary disposition. The Court of Appeals reversed. But the court granted leave and reversed the Court of Appeals. It noted that the “objective discovery rule has two aspects. First, as in Gebhardt and in Solowy, a plaintiff ‘should have discovered’ a possible cause of action when the available facts would let her infer malpractice. Second, as anticipated by Justice BOYLE’s partial concurrence in Moll, a plaintiff ‘should have discovered’ a possible cause of action when the plaintiff knows facts that should arouse her suspicions and doesn’t diligently investigate.” The court rejected defendants’ argument that plaintiff should have discovered the existence of her claim when she was diagnosed with metastatic breast cancer. They claimed that “a person diagnosed with metastatic breast cancer ‘originating in a lump which had been palpable for two years[] would immediately have reason to question the prior imaging studies.’” The court declined to “impute to a plaintiff knowledge of cancer’s progression without a record basis to do so. Perhaps if the mammogram were misread on Tuesday and the cancer were diagnosed on Wednesday, we could impute to the plaintiff the knowledge that cancer doesn’t develop ‘overnight’; but that’s not the present case.” Further, it would be “procedurally inappropriate for us to conclude that [plaintiff] was diligent, but these facts aren’t enough to conclude that she wasn’t.” Given that this case “is in the pleading stage, and given the evidence that [plaintiff] engaged in behavior that could be characterized as diligent, we cannot resolve this case summarily.”

    Justice Viviano concurred in the judgment, noting his agreement with the majority’s “conclusion and parts of its discussion, including that this case can be resolved on the ground that we will not impute evidence of cancer’s timetable to a plaintiff without a record basis to do so.” However, he would “not adopt the majority’s new standard applicable to the diligence analysis because it lacks grounding in our caselaw, creates a shifting time frame for the limitations period, potentially imposes additional burdens on plaintiffs inconsistent with the statute and our caselaw, and is unnecessary in light of the current framework applicable in these cases.”

    Justice Zahra dissented, finding that the Court of Appeals majority “correctly applied Solowy and reversed” the denial of defendants’ summary disposition motion. Based on the evidence, “any reasonable person would seriously doubt and question whether [defendant-doctor] failed to properly diagnose her condition in 2013.” Further, the record lacked “any diligent investigation after” 5/28/15. Moreover, MCL 600.5838a(2) “provides that ‘[t]he burden of proving that the plaintiff, as a result of physical discomfort, appearance, condition, or otherwise, neither discovered nor should have discovered the existence of the claim at least 6 months before the expiration of the period otherwise applicable to the claim is on the plaintiff.’ Because plaintiffs failed to meet this burden,” he would affirm the Court of Appeals’ judgment.

    Full Text Opinion

  • Malpractice (1)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 75972
    Case: Bowman v. St. John Hosp. & Med. Ctr.
    Court: Michigan Supreme Court ( Opinion )
    Judges: Clement, McCormack, Bernstein, Cavanagh, and Welch; Concurring in the judgment - Viviano; Dissent - Zahra
    Issues:

    Medical malpractice; The two-year statutory limitations period; MCL 600.5805(8); Accrual; De Haan v Winter; The discovery rule; MCL 600.5838a(2); Solowy v Oakwood Hosp Corp; Gebhardt v O’Rourke; Moll v Abbott Labs; Diligence; Dyke v Richard; Tolling; Haksluoto v Mt Clemens Reg’l Med Ctr; Notices of intent (NOIs)

    Summary:

    Holding that the present evidentiary record did not show that plaintiff sent the NOIs to defendants-doctor and hospital more than six months after she discovered or should have discovered the existence of her claim, the court reversed the Court of Appeals’ judgment and remanded. Plaintiff sued defendants for medical malpractice after discovering that her mammogram may have been misdiagnosed and that she had breast cancer. The trial court rejected defendants’ argument that the complaint was untimely and denied their motion for summary disposition. The Court of Appeals reversed. But the court granted leave and reversed the Court of Appeals. It noted that the “objective discovery rule has two aspects. First, as in Gebhardt and in Solowy, a plaintiff ‘should have discovered’ a possible cause of action when the available facts would let her infer malpractice. Second, as anticipated by Justice BOYLE’s partial concurrence in Moll, a plaintiff ‘should have discovered’ a possible cause of action when the plaintiff knows facts that should arouse her suspicions and doesn’t diligently investigate.” The court rejected defendants’ argument that plaintiff should have discovered the existence of her claim when she was diagnosed with metastatic breast cancer. They claimed that “a person diagnosed with metastatic breast cancer ‘originating in a lump which had been palpable for two years[] would immediately have reason to question the prior imaging studies.’” The court declined to “impute to a plaintiff knowledge of cancer’s progression without a record basis to do so. Perhaps if the mammogram were misread on Tuesday and the cancer were diagnosed on Wednesday, we could impute to the plaintiff the knowledge that cancer doesn’t develop ‘overnight’; but that’s not the present case.” Further, it would be “procedurally inappropriate for us to conclude that [plaintiff] was diligent, but these facts aren’t enough to conclude that she wasn’t.” Given that this case “is in the pleading stage, and given the evidence that [plaintiff] engaged in behavior that could be characterized as diligent, we cannot resolve this case summarily.”

    Justice Viviano concurred in the judgment, noting his agreement with the majority’s “conclusion and parts of its discussion, including that this case can be resolved on the ground that we will not impute evidence of cancer’s timetable to a plaintiff without a record basis to do so.” However, he would “not adopt the majority’s new standard applicable to the diligence analysis because it lacks grounding in our caselaw, creates a shifting time frame for the limitations period, potentially imposes additional burdens on plaintiffs inconsistent with the statute and our caselaw, and is unnecessary in light of the current framework applicable in these cases.”

    Justice Zahra dissented, finding that the Court of Appeals majority “correctly applied Solowy and reversed” the denial of defendants’ summary disposition motion. Based on the evidence, “any reasonable person would seriously doubt and question whether [defendant-doctor] failed to properly diagnose her condition in 2013.” Further, the record lacked “any diligent investigation after” 5/28/15. Moreover, MCL 600.5838a(2) “provides that ‘[t]he burden of proving that the plaintiff, as a result of physical discomfort, appearance, condition, or otherwise, neither discovered nor should have discovered the existence of the claim at least 6 months before the expiration of the period otherwise applicable to the claim is on the plaintiff.’ Because plaintiffs failed to meet this burden,” he would affirm the Court of Appeals’ judgment.

    Full Text Opinion

  • Negligence & Intentional Tort (1)

    Full Text Opinion

    e-Journal #: 75909
    Case: Wilson v. Detroit Entm't, LLC
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Tukel, Sawyer, and Cameron
    Issues:

    Premises liability; Slip & fall in a restroom; Whether the claim sounded in both ordinary negligence & premises liability; Jahnke v Allen; Notice of the alleged dangerous condition; Whether it was open & obvious; “Special aspects”; Motion for reconsideration

    Summary:

    The court concluded that plaintiff’s claim only sounded in premises liability, that he did not create a genuine issue of material fact because he “only brought forth speculation as to what caused him to fall in [defendant-casino’s] restroom, and the danger presented was open and obvious without special aspects.” Also, the trial court did not abuse its discretion by denying his motion for reconsideration. His claims sounded “only in premises liability and not ordinary negligence because his injuries were caused by alleged conditions on the land, not defendant’s actions.” The court noted that plaintiff “testified that he suffered injuries to his head and shoulder when slipping on the restroom floor. He testified that defendant’s employees tended to the wound on his head, helped him into a wheelchair, wheeled him to the casino’s medical room, and called him an ambulance.” He did not present “any evidence that the actions of defendant’s employees, apart from the alleged condition on the land, caused or exacerbated any of his injuries.” As such, like in Jahnke, his claim sounded only in premises liability. He also did not create a question of fact as to whether a dangerous condition even existed, because he had “not come forth with any evidence of what he actually slipped on. Plaintiff’s testimony only provided speculation and conjecture that he slipped on a wet and oily floor; his testimony was that the fall may have been caused by soap, water, or condensation from the humid weather, but he was not sure exactly what caused his fall.” While a question of fact existed “as to whether defendant was on notice of a dangerous condition because of the wet floor sign[,]” there was “no question of fact here that the hazard was open and obvious because an average person of ordinary intelligence could have perceived a hazardous condition in the restroom in which plaintiff fell.” The court also found that there were no special aspects to the condition here. “The hazard was not effectively unavoidable” given the availability of other restrooms, and “there was not an unreasonably high risk of severe harm because slipping on the hazard would only result in a short, rather than extended, fall.” Affirmed.

    Full Text Opinion

  • Termination of Parental Rights (1)

    Full Text Opinion

    e-Journal #: 75922
    Case: In re Hash
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Borrello, Servitto, and Stephens
    Issues:

    Termination under §§ 19b(3)(b)(i) & (j); Best interests of the children

    Summary:

    Holding that the trial court properly terminated respondent-father’s parental rights to the children, TLH and TJH, and that it was in their best interests, the court affirmed. Respondent argued that the trial court erred by terminating his parental rights based on his incarceration under § (h). But “the trial court made no such finding.” It terminated his rights pursuant to §§ (b)(i) and (j); it did not cite § (h) or “merely rely on his incarceration as a ground for termination. To the extent the trial court referenced the fact” he was incarcerated, this was made in the context of its discussion of his “history of being convicted and accused of committing sexual offenses against minor children.” The trial court discussed this history to show that his “treatment of his own daughter, TLH, was part of an established pattern of engaging in sexually abusive conduct toward minors, which the trial court found to be an indication that TLH was reasonably likely to suffer from sexual abuse in the future if respondent’s parental rights were not terminated.” He did “not challenge the propriety of the trial court’s findings in this regard on appeal but instead focuses solely on claiming that the court’s statutory grounds finding was based on his incarceration” and § (h). However, there was no support in the record for this contention, and he did not advance any argument that the trial court’s reliance on §§ (b)(i) or (j) was erroneous. Under the circumstances, he abandoned any appellate challenge to the trial court’s statutory grounds findings and he failed to show any error as to its statutory grounds determination.

    Full Text Opinion

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