Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
Full Text Opinion
Motion for stay of the United States Food & Drug Administration’s (FDA) order denying an application for approval of a “vaping” product; Judicial review; Family Smoking Prevention & Tobacco Control Act (TCA); Review of an agency’s decision under the Administrative Procedures Act; Whether petitioner showed the likelihood of success on the merits; Protection of the public health; 21 USC § 387j(c)(2)
In an order, the court denied petitioner-Breeze Smoke’s motion for an administrative stay of an FDA order denying its applications for its flavored electronic nicotine delivery systems because Breeze Smoke failed to establish the likelihood of success on the merits where it did not show that its products adequately protected the public health. The court first noted that petitioners are usually required to go before the agency for a stay pending review, but under the TCA, Breeze Smoke was entitled to judicial review of the denial of its Premarket Tobacco Product Applications. The court concluded that Breeze Smoke did not make “a strong showing that it would likely succeed on its claim that the FDA’s review of its application was arbitrary or capricious” and also failed to make “a strong showing that the FDA’s denial of its application contradicted the FDA’s nonbinding 2019 guidance because that guidance contemplated more rigorous scientific data than Breeze Smoke’s application contained.” Under the TCA, the FDA is required to deny an application where the marketing of the tobacco product would not be “appropriate for the protection of the public health (APPH).” Breeze Smoke was required to show that its flavored devices would “benefit public health enough to outweigh” the public-health detriment posed by the disproportionate appeal of these devices to children. The FDA concluded that it failed to do so. While finding that the “FDA likely should have more thoroughly considered Breeze Smoke’s marketing plan[,]” the court held that Breeze Smoke was not entitled to a stay where it had “the burden of showing a strong likelihood of success on the merits, and . . . the FDA likely properly concluded that Breeze Smoke failed to show that its products adequately protected the public health[.]”
Claims by a construction subcontractor’s employee; Whether a claim for failing to install a handrail on a basement staircase sounded only in premises liability & not also in ordinary negligence; Johnson v A & M Custom Built Homes of W Bloomfield, LPC; Buhalis v Trinity Continuing Care Servs; Applicability of the “common work area” doctrine; Ormsby v Capital Welding, Inc; Latham v Barton Malow Co; Whether a defendant owed a duty to plaintiff under the Michigan Occupational Safety & Health Act (MIOSHA) or the Occupational Safety & Health Act (OSHA); Kennedy v Great Atl & Pac Tea Co; MCL 408.1002(2); 29 USC § 653(b)(4); Whether M Civ JI 12.05 should have been given; Cindav Construction, Inc. (CCI)
The court held that plaintiff’s claim arising from his fall while working on a home construction site sounded only in premises liability, and rejected his argument that defendant-CCI could be held liable under the common work area doctrine. Further, CCI did not owe him any statutory duty “under OSHA or MIOSHA that would support a negligence-related claim,” and the trial court did not err in ruling that he was not entitled to have M Civ JI 12.05 given to the jury. Thus, it affirmed the judgment of no cause of action. Plaintiff, an employee of one of the subcontractors on the site, slipped and fell while going down the staircase. CCI was another subcontractor working at the property. It was “responsible for the finished carpentry work. Plaintiff tripped and fell on carpentry debris” on the staircase, which did not have a handrail at the time. He relied heavily on Johnson in contending that the trial court erred in ruling that his claims as to CCI’s failure to install a handrail on the “staircase sounded exclusively in premises liability, not also in ordinary negligence.” But the court noted that in contrast to that case, his “argument regards CCI’s alleged failure to install a handrail. In other words, it involves ‘passive’ negligence which legally distinguishable from the ‘active’ negligence addressed in Johnson.” Because his claim involved nonfeasance as to dangerous conditions on the land, the court could not “conclude that the trial court erred by holding that the claim sounded exclusively in premises liability.” As to his common work area argument, while he admitted that CCI was a subcontractor, not the general contractor or the property owner, he contended the trial court erred in holding that CCI could not be liable under the doctrine. The court rejected his argument as contrary to binding case precedent that has held the doctrine only applies to general contractors and property owners – it does not apply when the employee of one subcontractor seeks to recover from another subcontractor.
Great weight of the evidence; CSC I under MCL 750.520b(1)(b)(i); CSC II under MCL 750.520c(1)(b)(i); Admission of screenshots of text messages; MRE 106; Ineffective assistance of counsel; Failure to subpoena all the text messages; Failure to object to the prosecution’s request to admit the screenshot messages; Amending the judgment of sentence (JOS); MCR 6.435(A)
The court held that the guilty verdicts were not against the great weight of the evidence. Also, the trial court did not improperly admit screenshots of text messages between defendant and the victim’s mother (T). Finally, he was not denied the effective assistance of counsel. He was convicted of CSC I under MCL 750.520b(1)(b)(i) and CSC II under MCL 750.520c(1)(b)(i). Defendant argued that the “guilty verdicts were against the great weight of the evidence because the DNA evidence on [victim-]KL’s shorts did not rule out a natural transfer or an intentional transfer by” T or KL. He also pointed to inconsistencies in KL’s and T’s recollections of the events, and contended that “KL had a motive to manufacture allegations against” him. However, despite minor inconsistencies as to “the time of the incident, KL’s testimony was largely corroborated by other evidence presented at trial. KL testified, in detail, that defendant sexually abused her. Further, the DNA evidence admitted at trial established that there was a very strong likelihood that” his saliva was on her shorts. While defendant argued that “the DNA could have been from fecal matter or could have been present on KL’s shorts as a result of natural transfer or intentional transfer by KL or [T], the jury was free to draw the inference that saliva was present as a result of the sexual abuse to which KL testified. Similarly, although defendant testified that KL wrapped her leg around his neck shortly before the alleged incident occurred, which could have resulted in DNA transfer, the jury was free to find KL’s testimony more credible than defendant’s.” Testimony supported the inference that his “saliva was found on the inside of KL’s shorts, near her genital area, and therefore corroborates KL’s testimony that defendant touched her vagina with his tongue. Moreover, other witnesses at trial largely corroborated KL’s testimony about the incident.” The court further concluded that despite “minor discrepancies in KL’s statements, her testimony was not contradicted by physical facts or law.” The jury weighed her “testimony along with all of the other evidence, including defendant’s testimony (in which he speculated that his DNA was intentionally transferred to KL’s shorts because KL was frustrated that defendant had failed to fix her cellphone), and concluded that KL was credible and defendant was not.” He did not show plain error affecting his substantial rights. Affirmed, but remanded for the ministerial purpose of correcting the JOS.
Right to confrontation; Hearsay; MRE 403; Lay witness opinion testimony; MRE 701; Ineffective assistance of counsel; Failure to object; Failure to introduce expert testimony
The court held that defendant’s argument as to victim-SP’s (his minor step-grandchild) written testimony lacked merit, and that the error in admitting Detective W’s testimony about the victims’ specific statements did not require reversal. While the trial court erred by allowing defendant’s son, the father of victim-LL (defendant’s minor grandchild) and stepfather of SP, to give his opinion as to defendant’s guilt, this error was also not outcome-determinative. Finally, he was not entitled to relief based on ineffective assistance of counsel. He was convicted of CSC I and II. He “did not object, at trial, to SP’s testimony on the grounds that it violated his Sixth Amendment right to confrontation. Defendant had the opportunity to cross-examine SP and he did effectively cross-examine SP regarding multiple issues. SP did not refuse to answer any of defendant’s questions, and defendant was able to elicit testimony that he later relied on to attack the credibility of another witness. Moreover, SP testified under oath at trial, she was available for cross-examination, defendant did cross-examine her, and the jury was allowed to observe her demeanor.” Thus, his argument had no merit. Next, W “repeated out-of-court statements that LL and SP made, regarding their disclosure of the sexual abuse that they suffered, when they filed the police report.” Even if the purpose of W’s “testimony was to provide the reason why he forwarded the report to another department, his testimony should have been restricted to provide that he spoke with the victims and received a report that was pertinent to the Sex Crimes unit, which was sufficient to establish the reason why he took the subsequent action.” The court found that W’s testimony as to “the specific statements that were provided by the victims was more prejudicial than probative because the jury very well might have had difficulty limiting that testimony to the purpose of understanding why” W forwarded the report. But defendant did not show that it was “more probable than not that the alleged error was outcome-determinative . . . .” The court noted that “both victims testified about the sexual abuse that they suffered at the hands of defendant. Specifically, LL was able to provide detailed testimony regarding the abuse, and defendant was able to cross-examine each victim to impeach their credibility.” Further, W’s “testimony did not vouch for the victims’ testimonies or state that he believed” them. Affirmed.
Motion for relief from judgment; Defense experts’ testimony; General Elec Co v Joiner; MRE 702; New trial based on newly discovered evidence; People v Cress; Ineffective assistance of counsel; Whether the trial court should have considered defendant’s ineffective assistance claim; MCR 6.502(G)(2); People v Swain (Swain III); Failure to present expert testimony; Shaken baby syndrome (SBS)
Although the court held that the trial court abused its discretion by excluding all the defense experts’ proposed testimony, it was not persuaded that the trial court ultimately abused its discretion by denying defendant’s motion for relief from judgment based on newly discovered evidence. Further, she could not show entitlement to a new trial based on ineffective assistance of counsel. She was convicted of first-degree felony murder (predicated on first-degree child abuse) in connection with the death of her daughter, N. She appealed an order denying her second motion for relief from judgment. The court held that “the trial court did not abuse its discretion by concluding that the biomechanical engineering evidence and testimony was inadmissible or excluding alternative causation theories that lacked scientific or factual support. However, its decision to exclude the defense experts’ opinions regarding the validity of SBS diagnoses, reliance on the triad as a diagnostic tool, and the possibility of choking as an alternative cause of death was outside the range of reasonable outcomes.” As to the former County Medical Examiner’s recantation of his previous opinion about SBS as the probable cause of N’s death, the court concluded that this “evidence would call the prosecution’s causation theory into question and provide a possible alternative explanation for [N’s] death, but SBS would also remain a plausible explanation. Even if a jury was persuaded by the defense experts that the subdural hemorrhage, retinal hemorrhage, and brain swelling discovered during [N’s] autopsy did not establish a sufficient basis for diagnosing SBS, defendant’s suspicious behavior and subsequent confession would likely be viewed as confirming the diagnosis. Thus, it is improbable that” a retrial would result in an acquittal. Affirmed.
Ineffective assistance of counsel; Failure to request self-defense & defense-of-others jury instructions; People v Guajardo; People v Kurr; Prejudice; People v Rajput
The court held that defendant was entitled to self-defense and defense-of-others jury instructions, and that defense counsel’s failure to request them was objectively unreasonable and prejudiced him. Thus, it reversed the trial court’s denial of his motion for a new trial, vacated his convictions of AWIGBH, felony-firearm, FIP of a firearm, FIP of ammunition, and CCW, and remanded for a new trial. The court agreed with the trial court that the failure to request the instructions was objectively unreasonable, concluding that “common-law self-defense was available as an affirmative defense in defendant’s case.” It disagreed with the trial court’s determination that he was not prejudiced by the error. It found that the “trial court improperly considered the duty to retreat because there is no duty to retreat from a sudden, fierce, or violent attack.” Testimony and a video recording supported “that this altercation was sudden, fierce, and violent. The video indicates that it only took six seconds from the brick being thrown to the tequila bottle being smashed over defendant’s friend’s head and that the first shot was fired only six seconds later. Defendant also testified that the events quickly transpired and that it was a ‘frightening situation.’” The court noted that the trial court found “there was no other weapon other than the firearm used by defendant. However, most importantly, it failed to consider how the circumstances appeared to defendant.” He testified at trial “that he believed the other individuals involved in the altercation had weapons. The trial court also improperly concluded that the tequila bottle was not a deadly weapon. A tequila bottle, especially in this case where it was violently used to strike someone in the head, could be considered a deadly weapon.” The court further noted that while defendant “conceded to some of the charges against him, the common law affirmative defense of self-defense is generally available to a defendant charged with” FIP and felony-firearm. The court held that he presented “sufficient evidence to satisfy his burden of proof for his self-defense and defense-of-others claim and these were issues for the jury to decide.” His actions were arguably necessary, and the evidence suggested he was not the initial aggressor.
Validity of a plea; Failure to inform defendant that mandatory consecutive sentences were required because the crime here was committed while he was on parole; MCR 6.302(A) & (B)(2); People v Warren; People v White; Offender Tracking Information System (OTIS)
Applying White, the court held that defendant’s plea was invalid because the trial court violated MCR 6.302(A) and due process when it failed to inform him that mandatory consecutive sentences were required due to the fact he committed the crime in this case while he was on parole. Thus, it reversed the denial of his motion to withdraw his guilty plea and remanded for the trial court to give him an opportunity to withdraw or renew his plea. He pled guilty to possession with intent to deliver between 50 and 449 grams of heroin. Defendant contended “his plea was defective under Warren’s interpretation of MCR 6.302(B)(2) because” the trial court did not inform him of the mandatory consecutive sentencing. But the court noted that after the appellate briefs were filed, it addressed this issue in White, where it “held that the trial court was not required by MCR 6.302(B)(2) to inform the defendant of the mandatory consecutive sentencing for parole violations because, in contrast to Warren and other relevant cases, the mandatory consecutive sentencing at issue related to a past offense as to which the defendant was not then pleading guilty, rather than to two pending charges as in Warren.” However, the court determined that White required reversal here “given its additional holding that MCR 6.302(A) and due-process principles required the trial court to inform the defendant of the mandatory consecutive sentencing.” While the prosecution suggested he was not entitled to relief due to a lack of prejudice, it did not cite any case law supporting that prejudice is required in these circumstances. While the White defendant had to show “actual prejudice” because he raised the issue in a post-appeal motion governed by MCR 6.508(D)(3)(b), defendant here timely filed a post-sentencing motion. The court added that according to the OTIS, his maximum discharge date was over “23 years above what the duration would be if” he only served the 20-year maximum sentence for the crime here. Thus, it was “clear that his combined maximum sentence has been extended because of the mandatory consecutive sentencing.”
Search & seizure; Motion to suppress evidence; Validity of search warrants; The fruit of the poisonous tree doctrine; Probable cause; Denial of a Franks hearing
The court affirmed the district court’s denial of defendant-Elmore’s motions to suppress evidence of child pornography located on a car key fob’s memory card where the search warrants for the car and fob were supported by probable cause and the evidence on the fob could not qualify as “fruit of the poisonous tree.” During an investigation of child sexual assault, Elmore’s stepmother gave police three key fobs, one of which contained a memory card including child pornography. After unsuccessfully moving to have the memory-card evidence suppressed, he pled guilty to knowingly possessing child pornography, reserving his right to appeal the evidence issue. Elmore argued that (1) the warrants for his car and storage unit lacked probable cause and (2) the key fob evidence was fruit of that poisonous tree. However, the court noted that neither the car search nor the storage unit search produced any evidence – “they were fruitless[,]” and rejected his claim that his “reaction” to the first two allegedly illegal searches triggered the fob search. The court declined to “extend the fruit-of-the-poisonous-tree beyond cases in which officers exploit information or evidence they obtained during a Fourth Amendment violation.” Moreover, even if it found the doctrine applied here, there was no “temporal proximity” where the search of the car and the storage unit took place almost two months before the memory card was discovered. Further, there was no evidence of “any official influence” leading Elmore’s stepmother to turn over the fobs, and any mistakes by the officers were “goods faith mistakes” rather than misconduct that needed to be deterred. The court also rejected his claim that the warrant for the fobs lacked probable cause where the affidavit recounted the information from Elmore’s stepmother detailing his “unusual and ‘very concerning’ reaction to learning that officers had possession of his car and key fobs[,]” and the affiant noted “that it was ‘not uncommon for suspects to hide . . . electronic devices’ containing child pornography.” Given his behavior about “the key fobs, his history with child pornography, and his known tendency to hide that material in electronic devices, the totality of the circumstances suggest that incriminating information would be found on at least one of Elmore’s three fobs.” The court also held that he was not improperly denied a Franks hearing.
Termination under §§ 19b(3)(b)(i), (c)(i), (g), (j) & (k)(iii); “Severe physical abuse”; Children’s best interests; Relative placement; In re Olive/Metts Minors
The court held that clear and convincing evidence supported terminating respondent-mother’s parental rights to one of the children (D) under §§ (c)(i), (g), and (j), and to the other child (I) under §§ (b)(i), (g), (j), and (k)(iii). Further, doing so was in both children’s best interests. The trial court took jurisdiction of D due to “respondent’s physical abuse, alcohol use, and mental health concerns.” She pled no contest early on “to the allegations in the petition and no contest to criminal charges of third-degree child abuse.” She later conceded for purposes of § (b)(i) that she physically abused D. She was provided many “services designed to improve her parenting skills and address her anger management issues. She did not substantially comply with the treatment plan. To the extent that she participated in services, she did not benefit from them. In particular, at the time of termination, after approximately two years of services,” she could not show the ability to “manage her anger and safely parent” the children (I was born during the case). The trial court gave “a detailed analysis of each child’s best interests, it considered all of the appropriate evidence, and it weighed a variety of factors. Because the children’s interests significantly differed,” it expressly addressed them individually. D “was 11 years old at the time of termination. He had been in care for approximately two years. Respondent’s inability to achieve the progress necessary to warrant reunification was taking its toll on” him. His caseworker testified that D “was frustrated and crying out for permanence. Unfortunately, respondent could not meet” his needs. Because she failed to benefit from services, she “had not addressed her anger issues and D[] would be at risk of harm in” her care. Termination was the only way for D to “attain the safety, permanence, stability, and finality he desperately required.” The trial court did not clearly err in finding that it was in D’s best interests despite his relative placement. A preponderance of the evidence also supported its finding that termination was in I’s best interests. While there was a bond between respondent and I, there was no indication she could safely parent him if he was returned to her. In fact, he “would be at risk of harm in respondent’s care” given her history of severely abusing D. Additionally, I “was doing well in his relative placement” and likely adoptable given his young age. Affirmed.