Felony marijuana conviction under MCL 333.7401(2)(d)(iii); The Michigan Regulation & Taxation of Marihuana Act (MRTMA); People v Soto; People v Kejbou

The court held that Soto applied here and pursuant to that decision, defendant-Edwards’s felony marijuana conviction under MCL 333.7401(2)(d)(iii) was not barred by the MRTMA. He was convicted of possession with intent to deliver less than 5 kilograms of marijuana, second or subsequent offense; felony-firearm; and CCW. The court noted that he “was caught with 2.8 pounds (approximately 45 ounces) of marijuana, which far exceeded both ‘the amount of marihuana allowed by section 5’” of the MRTMA, “i.e., 2.5 ounces, as well as double that amount, i.e., 5 ounces. Thus, the amount Edwards possessed with the intent to distribute was not eligible for the punishments of either MCL 333.27965(1) or (2). As for subsection (4), [he] did not just ‘possess’ the marijuana, but ‘possesse[d] it with intent to deliver,’ which is conspicuously missing from that subsection.” As a result, his “criminal act fell outside the four corners of MCL 333.27965. Like the defendant in Soto, Edwards was accused of possessing with intent to deliver an unlawful amount of marijuana; conduct for which the MRTMA does not expressly contain a counterpart provision concerning misdemeanor penalties, notwithstanding the fact the Soto defendant was charged with the higher offense of possessing with intent to deliver 5 to 45 kilograms of marijuana. Thus, pursuant to Soto, because there are no statutes in conflict, the Public Health Code governs, rendering the contested felony prosecution and subsequent conviction under MCL 333.7401(2)(d)(iii) permissible. The trial court did not err by denying Edwards’s motion for a directed verdict or new trial.” He was not entitled to relief as to “his intent-to-deliver conviction or his felony-firearm conviction, as the marijuana offense properly serves as the predicate felony for the latter under the Public Health Code.” Affirmed.

Sentencing; Scoring of OVs 7 & 19; MCL 777.37(1)(a); People v Rodriguez; MCL 777.49(c); People v Hershey; People v Smith

Concluding that OV 7 was properly scored at 50 points and OV 19 at 10 points, the court held that the trial court did not clearly err in resentencing defendant on remand to 152 to 360 months for his AWIGBH conviction. It noted that his sentencing offense did not require the use of a weapon. He “repeatedly stabbed the victim in the stomach with a sharp object and continued to kick the victim while on the ground and retreating from defendant, resulting in victim’s broken eye socket and broken nose. Defendant’s continued attack in conjunction with [his] use of a weapon to stab the victim supports by a preponderance of the evidence the trial court’s finding that [his] conduct was excessive and intended to increase the victim’s fear or anxiety.” As a result, there was no error in scoring 50 points to OV 7. As to OV 19, while he contended “the wrapped scissors on the roof were not the object used to stab the victim, the trial court could infer defendant’s interference or attempted interference with the investigation based on the evidence. The scissors wrapped in plastic wrap were located by police after defendant sent his girlfriend a letter from jail directing her to remove something from a particular area of the roof. Although no fingerprints, blood, or DNA evidence was found on the scissors, police suspected that the scissors were cleaned after they found plastic wrap inside the home near a bottle of rubbing alcohol and a towel. From this evidence, and considering that defendant provides no alternative explanation as to why he sent the letter from the jail or why scissors wrapped in plastic were found on the roof, the trial court could reasonably infer that [he] intended to interfere with the investigation by hiding the scissors that he used to stab the victim and instructing his girlfriend to remove the scissors from that hiding spot.” The court also concluded that “it was reasonable for the trial court to infer from the evidence that defendant acted to evade the administration of justice when he removed blood from his shoes.” Affirmed.

Prosecutorial misconduct; Sentencing; Scoring of OVs 4 & 10; Use of an incorrect guidelines range

The court held that defendant did not show he was entitled to relief based on prosecutorial misconduct. Also, he failed to explain how the testimony fell “short of the sort of psychological harm sufficient to support a 10-point score for OV 14.” Further, his “challenge to his 10-point score for OV 10” lacked merit. However, resentencing was warranted because he was sentenced based on an incorrect guidelines range. Thus, the court affirmed his convictions, but vacated his sentence and remanded for resentencing. He was convicted of using a computer to commit a crime and capturing or distributing an image of an unclothed person. He “was sentenced, as a fourth habitual offender, to 5 years and 4 months to 30 years in prison (with credit for 279 days).” He first contended “that the prosecutor committed misconduct and denied him a fair trial by (1) improperly suggesting that defendant needed to present evidence at trial to corroborate or substantiate his testimony, and (2) inappropriately bolstering the credibility of a prosecution witness—the victim’s boyfriend.” The court did not see merit in his “claim that the prosecutor improperly shifted the burden of proof.” Defendant failed to show plain error under the applicable settled authority. He “testified at trial, and he and the victim presented the jury with competing versions of events.” Defendant took “issue with various questions the prosecutor asked him during cross-examination that focused on the credibility his offered, and exonerating, version and whether there was any other evidence that would support it.” But as the applicable “caselaw indicates, such probing of defendant’s testimony and theory of the case was permissible, and did not improperly shift the burden of proof to defendant.” He also took issue with an “exchange between the prosecutor and the victim’s boyfriend, regarding Facebook messages that had been exchanged between the boyfriend and defendant[.]” The court held that the “isolated comment challenged here” did not carry any “impermissible implication, and instead simply conveyed to the witness that it was unnecessary to show the notification messages on his phone at that time.” But a change the trial court made in scoring the OVs changed “defendant’s recommended guidelines range—from 29-114 months to 19-76 months.” While his sentence fell “within the correct, reduced range, he is entitled to resentencing in light of that correct range.”

Sufficiency of the evidence; CSC II; MCL 750.520c(1)(a) & (2)(b); “Sexual contact”; MCL 750.520a(q); “Intimate parts”; MCL 750.520a(f); Sentencing; OVs 4 (psychological injury to a victim) & 10 (“exploitation of a vulnerable victim”); Ineffective assistance of counsel; Failure to object; Judgment of sentence (JOS)

Concluding that (1) the evidence of sexual contact was sufficient to sustain defendant’s CSC II conviction, (2) the trial court did not err by scoring OV 4, and (3) any possible error as to OV 10 was harmless, the court affirmed his conviction and sentence (as a fourth-offense habitual offender) to 5 to 15 years but remanded for correction of a clerical error in his JOS. The only element of his CSC II conviction that defendant challenged was the first one. He contended the evidence merely showed that he touched victim-DF’s “stomach, not any intimate part as defined by statute.” But the court held that DF’s testimony about “the sexual contact at his mother’s house was sufficient to sustain the” conviction. “DF stated, when he woke up, that he felt defendant’s hand ‘come out of my pants out of where my underwear are, specifically my belt buckle.’ DF further testified that when he awoke, ‘[t]he tip of my penis was coming out of my pants,’ which was ‘unusual,’ and that ‘it was uncomfortable and not how it was supposed to be.’ The most straightforward implication of DF’s testimony [was] that defendant placed his hand inside DF’s underwear when DF was asleep, touching DF’s genital area for his own sexual arousal or gratification.” The court found that at “a minimum, even if defendant is correct on appeal that this testimony does not directly show that he touched DF’s penis, this testimony shows that [he] at least touched ‘the clothing covering the immediate area of [DF’s] intimate parts.’” Thus, the court concluded that “DF’s testimony, by itself, was sufficient to establish that defendant was guilty of CSC-II beyond a reasonable doubt because he engaged in sexual contact with DF.” Further, as the “case involved a bench trial, the trial court specifically found after trial that DF was a credible witness and that he testified honestly and truthfully. The trial court added that DF’s testimony was corroborated by the testimony from his mother to the effect that DF started ‘acting differently’ after the sexual contact because he ‘didn’t play basketball’ and ‘didn’t skateboard like he used to and he started doing worse in school.’” The trial court’s findings were “supported by the record and not clearly erroneous.” Also, it “did not err by scoring OV 4 at 10 points, and defense counsel was not ineffective for failure to object because any objection would have been meritless.” Finally, he was “not entitled to relief for any arguable error that occurred with respect to OV 10 because his guidelines remain unaffected regardless of the OV 10 score.”

Operating a vehicle while intoxicated (OWI) causing death; Evidence preclusion as to the victim’s alleged gross negligence; Intervening cause; Jury instruction as to gross negligence

Concluding that the victim’s gross negligence was not in issue, the court held “that the trial court did not err by precluding evidence of the victim’s gross negligence for the purpose of establishing a superseding cause. [It] also did not err by denying defendant’s request for an attendant jury instruction” as to gross negligence. Further, the “preclusion of evidence and lack of jury instruction relating to gross negligence did not deny [him] his constitutional rights to present a defense.” He “struck and killed the victim when she was crossing a road.” He pled guilty to OWI causing death, “but reserved the right to appeal the trial court’s pretrial ruling precluding evidence and jury instructions relating to the victim’s alleged gross negligence as a superseding cause of the accident.” The court agreed “with the trial court that defendant failed to show a threshold determination that evidence of the victim’s conduct was sufficiently probative for a showing of gross negligence.” It concluded that while “witnesses indicated that the victim appeared suddenly as defendant came around the curve, there was no evidence suggesting that the victim did anything more than misjudge the situation. There was no indication that she entered the road with a blind disregard for vehicular traffic, intentionally impeded traffic by standing in the road, or crossed in disregard of any signage warning of a dangerous curve.” Thus, the circumstances suggested, “at most, that the victim might have been merely negligent in crossing the road as she did.” Defendant also asserted she “violated certain Michigan pedestrian laws, and therefore was negligent. Although a violation of a statute ‘creates a rebuttable presumption of negligence,’” at issue in this case was “the victim’s gross negligence, not ordinary negligence.” The court also disagreed with his “assertion that the victim’s erratic movements as she crossed the road evidenced ‘an indifference to a risk’ sufficient to establish gross negligence.” Rather, it agreed “with the trial court that the evidence could not reasonably support the conclusion that the victim’s decision to cross County Road 100 as she did could have constituted a superseding cause that severed the causal link between defendant’s operation of the vehicle and the accident.” It rejected his claim “that the trial court impermissibly usurped the role of the jury by preemptively precluding evidence of the victim’s gross negligence. Although limited evidence was presented at the motion hearing (primarily the body-camera footage), defense counsel indicated that he was not offering any specific evidence (such as expert opinion) beyond the facts of the case about the victim’s conduct to establish that she was grossly negligent.” Defendant also did not explain “on appeal explain what additional evidence might have existed that would have been probative of gross negligence and precluded from evidence because of the trial court’s order. Moreover, the trial court’s” evidentiary ruling “did not prevent defendant from challenging the element of proximate causation.” Affirmed.

Juror substitution; Failure to instruct the jury to begin deliberations anew; MCR 6.411; People v Tate; Ineffective assistance of counsel; Failure to object; Prejudice; Failure to impeach a witness with an unlawfully driving away an automobile conviction; MRE 609; Motion to compel disclosure of complainants’ psychological records; People v Stanaway; Preclusion of cross-examination about sexual assaults by another individual; The rape-shield statute (MCL 750.520j); People v Morse; Right to present a defense; Judicial bias; People v Stevens; Denigrating defense counsel; Other acts evidence; MCL 768.27a(1); MRE 403; People v Watkins; Cumulative error

The court held that while the trial court erred in failing “to instruct the jury to begin deliberations anew after replacing a juror[,]” defendant was not denied a fair trial and was not prejudiced. He also was not entitled to relief based on his ineffective assistance of counsel claims. The court further held that the trial court did not abuse its discretion in denying his “request for an in camera review of complainants’ counseling records.” And his right to present a defense was not violated by not being allowed to cross-examine them about the sexual assaults that another man (S) allegedly committed against them. The court also found that other acts evidence was properly admitted, and rejected his judicial misconduct and cumulative error claims. Thus, it affirmed his CSC I convictions involving two complainants (NT and BN). The “trial court should have instructed the jury to begin deliberations anew but the omission of the instruction did not violate defendant’s right to a properly-instructed jury. The trial court became aware of Juror 14’s decision to absent himself from the proceedings ten minutes after the jury was excused to begin deliberations (4:52 p.m. to 5:02 p.m.).” The trial court discussed the matter with the attorneys for 10 “minutes before bringing Juror 14 into the courtroom at 5:12 p.m. The 12 original jurors were thus assembled a total of 20 minutes before Juror 14 was removed. There is no record of how the jurors spent these 20 minutes, but it can be reasonably inferred that 20 minutes is not sufficient time for a jury to delve deeply into deliberations, especially when they expected to be released at 5:00 p.m. Defendant speculates that the jury might have chosen a foreperson in this time. However, the jurors’ actions are a matter of speculation, and speculation is insufficient to establish that he was denied a fair trial.” As to the denial of his motion to compel disclosure of complainants’ psychological records, he sought in camera review to look for information as to whether they ever accused S of sexual abuse. The court found that the only connection between S “and the allegations against defendant was that” their mother referred to another child’s allegations against S “and NT’s allegations against defendant in the same text message. This is too attenuated to support defendant’s hypothesis that NT or BN misremembered who abused them, let alone that their therapy records from well over a decade later might reveal as much.”

Revocation of Parentage Act (RPA); MCL 722.1443(4); Best interests; Conception as a result of nonconsensual sexual penetration

In this case involving “a child and her parentage, conception, and best interests under the” RPA, the court vacated the trial court’s order of filiation and remanded for a proper analysis of the child’s best interests. On remand, if the trial court again finds that appellant-mother’s (Bever) “has not proved by clear and convincing evidence that the child was conceived as a result of nonconsensual sexual penetration, then it must take evidence and make factual findings regarding the child’s best interests with a proper focus on the child’s interests rather than on” appellee-Jones’s interests. When the child was born Bever “indicated that her then-boyfriend and now husband was the child’s father, and he signed the acknowledgment of parentage.” Jones subsequently “alleged that he was the child’s biological father. After a DNA test indicated that Jones was the biological father, the trial court’s order of filiation revoked Bever’s husband’s acknowledgment of parentage and established Jones as the child’s father.” Bever argued “that the trial court was required under MCL 722.1443(4) to hold an evidentiary hearing to determine the child’s best interest.” The court found that the “trial court’s focus was on Jones’s desire to be involved in the child’s life and Bever’s attempts to prevent his involvement; such analysis may be relevant but does not alone establish that it is in the child’s best interests not to set aside the determination that Jones is the father. When focusing on the child, the trial court mentioned aspects that would negate best interests if Jones was left as the father. The trial court mentioned that there was ‘undoubtedly a strong relationship between’ the child and Bever’s husband, that the child was then seven years old, and that the child would likely experience disruption by the change in father. But it then concluded that it was in the child’s ‘best interests to be reunited with her biological father who has been fighting to be involved in her life since shortly after she was born.’ The trial court’s opinion did not meet the MCL 722.1443(4) requirements for findings of fact or statements of reasons.”

Medical malpractice; Nursing negligence; Exclusion of a standard of care (SOC) expert’s testimony; MRE 702; MCL 600.2955; Medical literature; Facts in evidence; MRE 703; American Nurses Association (ANA)

The court held that the trial court did not abuse its discretion in excluding the testimony of plaintiff’s SOC expert (Dr. R) because the testimony “was unreliable and not based on facts in evidence.” Thus, in this interlocutory appeal it affirmed the trial court’s order excluding the testimony and dismissing plaintiff’s claim for nursing negligence against defendant-hospital (Hurley). This medical malpractice case arose “from a series of surgeries and hospital visits that plaintiff underwent in” 3/16. She first argued on appeal that the trial court abused its discretion in striking R’s SOC testimony about plaintiff’s discharge on 3/17/16, “because her opinion was adequately supported by medical literature.” But the court agreed with the trial court’s conclusion that R’s “expert opinion was ‘too general and too unconnected to accept.’” It found that R’s “cited literature does not explicitly discuss or illuminate a standard of care as it relates to discharging patients.” In support of her opinion, R relied on the ANA Code of Ethics and two peer-reviewed articles. “These authorities do not provide a workable standard of care as it relates to whether the Hurley nurses breached their duty by allowing plaintiff’s discharge. At most, they provide a general discussion about the importance of patient advocacy. The trial court did not abuse its discretion by recognizing that the general propositions on which [R] relied—that nurses should advocate for their patients and provide optimal care—presented too general a standard to be helpful to a jury in assessing whether plaintiff was negligently discharged.” The court also found that the reliability of R’s opinion was “undermined by the fact that nurses are not ultimately responsible for the discharge of a patient. While [R] testified that nurses may influence whether a patient is discharged, she also acknowledged that a physician or mid-level provider is ultimately responsible for issuing a discharge order.” Plaintiff also contended that R’s testimony about plaintiff’s treatment in the ER on 3/19/16 was supported by facts in evidence. But the court agreed with the trial court that the opinion did “not accord with the established facts and was properly excluded under MRE 703.”

Personal protection insurance (PIP) benefits; Motion for JNOV; Whether a vehicle caused the accident; Law-of-the-case doctrine; Kaur v Citizens Ins Co of the Midwest (Unpub) (Kaur II); “Domicile”; Judicial estoppel; Motion for a directed verdict; Attendant care; Exclusion of an insurer’s letter; Whether other evidence was improperly admitted; A police officer’s testimony; Relevance; MRE 403; Attorney misconduct; Attorney fees under MCL 500.3148(1); Appellate attorney fees

In this dispute between two insurers (defendant-Citizens and third-party defendant-Meemic) over responsibility for paying PIP benefits, the court affirmed the trial court in all respects, and remanded for consideration of appellate fees. The appeal arose from an accident that “occurred during a period when plaintiff and her husband,” nonparty-M, were residing in their son’s (nonparty-J) home in Canton. J was insured by Meemic. Citizens argued “that the trial court erred by denying its motion for JNOV or a new trial on the issue of whether a vehicle caused plaintiff’s accident.” Citizens was the insurer of the vehicle allegedly involved in the accident. Plaintiff argued “that the law-of-the-case doctrine precludes us from considering this issue because we previously decided, in Kaur II, that the jury would determine the cause of the accident.” The court held that “the law-of-the-case doctrine does not preclude Citizens from arguing on appeal that the evidence presented at trial was not sufficient to support the jury’s verdict.” The court noted that there “are two possible ways that a motor vehicle could have caused plaintiff’s accident: either the vehicle made physical contact with her, knocking her off her feet and onto the ground; or plaintiff reasonably feared that the approaching vehicle would strike her, causing her to take evasive action that led to her fall. Citizens denied that evidence supported either possibility.” As to the first possibility, “three physicians and an accident reconstruction specialist testified that plaintiff’s hip fracture was consistent with being hit by a vehicle, and unlikely to be caused by a simple fall.” Only one expert witness, who was not a medical doctor, “concluded that plaintiff’s injuries did not indicate that she was hit by a vehicle.” The court held that there was sufficient evidence to support the jury’s verdict for plaintiff. As to the jury’s finding of domicile, among other things the court concluded that a “trier of fact could reasonably find from [the] testimony that plaintiff and [M] continued to maintain an Ontario domicile after they sold their home and began to move freely between their sons’ homes. Although they made arrangements to facilitate their stay in the United States, including the acquisition of permanent residency status and eligibility for Medicare, they never committed to establishing a new domicile in Michigan. Plaintiff stated that she intended to remain domiciled in Ontario. It was up to the jury to decide whether this testimony was credible or whether the facts concerning her living arrangements proved instead that she changed her domicile to Ontario.”

Claim for noneconomic tort damages under the No-Fault Act; MCL 500.3135; A serious impairment of body function; McCormick v Carrier; Chouman v Home Owners Ins Co

The court held that the trial court erred in determining that objective evidence that plaintiff-appellee suffered “injuries was sufficient to conclusively establish an impairment as required by MCL 500.3135.” Rather, there was a dispute as to “whether and to what extent, if at all, appellee is suffering present impairments, and will suffer impairments in the future[.]” Thus, the trial court erred in ruling “as a matter of law that the impairment threshold of MCL 500.3135(2)(a)” was met. After reviewing McCormick and Chouman, the court found that “to the extent that the trial court concluded that there was ‘no factual dispute concerning the nature and extent of [appellee’s] injuries,’” it erred in doing so. Appellee appeared to have sustained injuries, but defendant-insurer (Farm Bureau) presented expert testimony from a doctor (A) “to support that there was no objective medical basis for many of appellee’s subjective complaints of pain and suffering and that there were no medical reasons for ongoing work restrictions or replacement services. In particular, [A] opined, ‘Symptoms exaggeration/magnification. The patient is with persistent report of neck and low back pain for which there is no clear objective medical basis.’ [A] also opined that ‘there is no clear objective medical basis at this point in time’ for the fact that appellee has not worked since the accident. These opinions from [A] show that there is a question of fact regarding the nature and extent of appellee’s injuries for the purposes of MCL 500.3135(2)(a)(i).” Although it was true that A “did not dispute that appellee suffered some injuries and opined that these injuries warranted treatment over the course of eight to 12 weeks following the accident, these undisputed injuries do not preclude the existence of a material factual question because, as in Chouman, appellee has not limited his claims to past damages. Rather, appellee seeks $500,000 in damages, and he alleges permanent impairments and an ongoing inability to work as well as perform household and various other activities. Therefore, Farm Bureau is entitled to present evidence to the jury regarding the nature and extent of his injuries.” Reversed and remanded.

Whether a fence was in breach of a subdivision’s Declaration of Covenants, Conditions & Restrictions (CCRs); Laches; Knight v Northpointe Bank; Absence of documentary evidence; Homeowners Association (HOA)

In this dispute over whether a fence complied with a subdivision’s deed restrictions (the CCRs), the court held that the trial court erred in granting defendants summary disposition based on laches and on plaintiff’s “failure to provide certain documentary evidence to establish the existence of a genuine issue of material fact.” In the fall of 2017, defendants requested and obtained approval from the subdivision’s HOA board “to build a fence on their property. The parties agree that the HOA board approved the construction of a fence, and defendants built” one in 11/17. But the parties disputed “what exactly the HOA board approved and whether the fence as built complies with that approval and with the” subdivision’s CCRs. On appeal, the court first noted that defendants failed to “raise laches as an affirmative defense or move for summary disposition on that basis[,]” which generally constitutes a waiver of the defense. While they relied on the fact they did assert equitable estoppel as an affirmative defense, the two “are distinct affirmative defenses with distinct elements,” and the court did not “see how, in this case, defendants’ assertion of the former defense would somehow excuse their failure to assert—and thus their waiver of—the latter.” Further, apart from their waiver of the laches defense, the court agreed “with plaintiff that the trial court erred in its merits assessment of that defense.” In granting defendants’ summary disposition motion, “the trial court made only a conclusory ruling that ‘the delay in seeking to enforce the CCRs would prejudice [d]efendants.’ [It] offered no findings or explanation in support of that conclusion. Nor does the record reveal any grounds for granting” them summary disposition on this basis. The only prejudice that they asserted, “both below and on appeal, are the costs that they incurred in building the fence and would incur by having to remove it. At no point” did they show that those costs were “the result of plaintiff’s delay in not bringing his challenge sooner.” As to the lack of documentary evidence, neither the trial court nor defendants meaningfully explained “why plaintiff would have had to produce evidence regarding the fence’s consistency with board approval to effectively oppose the arguments for summary disposition that defendants advanced in their motion.” Reversed and remanded.

Medical malpractice; Statute of limitations; The “discovery rule”; Solowy v Oakwood Hosp Corp

Concluding that the evidence failed to establish a genuine issue of material fact that plaintiff-Baase had knowledge of her claim on 3/31/22, the court affirmed summary disposition for defendant-Dr. Stewart. The court found that similar “to the plaintiff in Solowy, Baase became aware of her claim against Dr. Stewart when she sought a second opinion from” another doctor (Dr. F). It noted that when “asked what occurred at her first appointment with Dr. [F] on [3/31/22], Baase testified that he took x-rays and told her that her ACL anchor button was in the wrong place and her partial knee replacement was in the wrong place. He showed her on the x-rays what he was talking about and told her that he would perform a revision surgery.” While Baase asserted “that she must have gotten her dates confused, Dr. [F’s] record dated [3/31/22], indicates that he took x-rays on that date, although the record does not indicate that the ACL anchor button or the partial knee replacement were in the wrong locations.” It was true that Dr. F’s 3/31/22 record did “not comport with what Baase claimed he told her on that date.” However, her “physical therapy records corroborate her testimony. Dr. [F’s] referral stated that he referred Baase to physical therapy because of a ‘failed left ACL reconstruction.’ At her initial physical therapy examination on [4/20/22], Baase stated that Dr. [F] informed her that her ACL reconstruction failed, and she required an ACL reconstruction as well as a revision of her partial-knee-replacement surgery. Taken together, Baase’s deposition testimony and physical therapy records indicate that she was aware on [3/31/22], of her possible claim against Dr. Stewart.” While she contended “she must have gotten her dates confused at her deposition, she fails to explain how she otherwise acquired the information she conveyed at her initial physical therapy examination on” 4/20/22. Baase asserted “that if she believed that Dr. Stewart committed malpractice on [3/31/22], it did not make sense for her to treat with him again on [4/21/22]. Baase testified, however, that Dr. Stewart ‘discharged’ her on that date and told her that she could discontinue the antibiotics.” Thus, there was “a plausible explanation for her visit with Dr. Stewart on [4/21/22], notwithstanding her knowledge of her claim against him.” In light of this record, “the trial court properly granted Dr. Stewart’s renewed motion for summary disposition on the basis that Baase’s claim was untimely filed.”

Medical malpractice; Nursing negligence; Exclusion of a standard of care (SOC) expert’s testimony; MRE 702; MCL 600.2955; Medical literature; Facts in evidence; MRE 703; American Nurses Association (ANA)

The court held that the trial court did not abuse its discretion in excluding the testimony of plaintiff’s SOC expert (Dr. R) because the testimony “was unreliable and not based on facts in evidence.” Thus, in this interlocutory appeal it affirmed the trial court’s order excluding the testimony and dismissing plaintiff’s claim for nursing negligence against defendant-hospital (Hurley). This medical malpractice case arose “from a series of surgeries and hospital visits that plaintiff underwent in” 3/16. She first argued on appeal that the trial court abused its discretion in striking R’s SOC testimony about plaintiff’s discharge on 3/17/16, “because her opinion was adequately supported by medical literature.” But the court agreed with the trial court’s conclusion that R’s “expert opinion was ‘too general and too unconnected to accept.’” It found that R’s “cited literature does not explicitly discuss or illuminate a standard of care as it relates to discharging patients.” In support of her opinion, R relied on the ANA Code of Ethics and two peer-reviewed articles. “These authorities do not provide a workable standard of care as it relates to whether the Hurley nurses breached their duty by allowing plaintiff’s discharge. At most, they provide a general discussion about the importance of patient advocacy. The trial court did not abuse its discretion by recognizing that the general propositions on which [R] relied—that nurses should advocate for their patients and provide optimal care—presented too general a standard to be helpful to a jury in assessing whether plaintiff was negligently discharged.” The court also found that the reliability of R’s opinion was “undermined by the fact that nurses are not ultimately responsible for the discharge of a patient. While [R] testified that nurses may influence whether a patient is discharged, she also acknowledged that a physician or mid-level provider is ultimately responsible for issuing a discharge order.” Plaintiff also contended that R’s testimony about plaintiff’s treatment in the ER on 3/19/16 was supported by facts in evidence. But the court agreed with the trial court that the opinion did “not accord with the established facts and was properly excluded under MRE 703.”

Claim for noneconomic tort damages under the No-Fault Act; MCL 500.3135; A serious impairment of body function; McCormick v Carrier; Chouman v Home Owners Ins Co

The court held that the trial court erred in determining that objective evidence that plaintiff-appellee suffered “injuries was sufficient to conclusively establish an impairment as required by MCL 500.3135.” Rather, there was a dispute as to “whether and to what extent, if at all, appellee is suffering present impairments, and will suffer impairments in the future[.]” Thus, the trial court erred in ruling “as a matter of law that the impairment threshold of MCL 500.3135(2)(a)” was met. After reviewing McCormick and Chouman, the court found that “to the extent that the trial court concluded that there was ‘no factual dispute concerning the nature and extent of [appellee’s] injuries,’” it erred in doing so. Appellee appeared to have sustained injuries, but defendant-insurer (Farm Bureau) presented expert testimony from a doctor (A) “to support that there was no objective medical basis for many of appellee’s subjective complaints of pain and suffering and that there were no medical reasons for ongoing work restrictions or replacement services. In particular, [A] opined, ‘Symptoms exaggeration/magnification. The patient is with persistent report of neck and low back pain for which there is no clear objective medical basis.’ [A] also opined that ‘there is no clear objective medical basis at this point in time’ for the fact that appellee has not worked since the accident. These opinions from [A] show that there is a question of fact regarding the nature and extent of appellee’s injuries for the purposes of MCL 500.3135(2)(a)(i).” Although it was true that A “did not dispute that appellee suffered some injuries and opined that these injuries warranted treatment over the course of eight to 12 weeks following the accident, these undisputed injuries do not preclude the existence of a material factual question because, as in Chouman, appellee has not limited his claims to past damages. Rather, appellee seeks $500,000 in damages, and he alleges permanent impairments and an ongoing inability to work as well as perform household and various other activities. Therefore, Farm Bureau is entitled to present evidence to the jury regarding the nature and extent of his injuries.” Reversed and remanded.

Whether a fence was in breach of a subdivision’s Declaration of Covenants, Conditions & Restrictions (CCRs); Laches; Knight v Northpointe Bank; Absence of documentary evidence; Homeowners Association (HOA)

In this dispute over whether a fence complied with a subdivision’s deed restrictions (the CCRs), the court held that the trial court erred in granting defendants summary disposition based on laches and on plaintiff’s “failure to provide certain documentary evidence to establish the existence of a genuine issue of material fact.” In the fall of 2017, defendants requested and obtained approval from the subdivision’s HOA board “to build a fence on their property. The parties agree that the HOA board approved the construction of a fence, and defendants built” one in 11/17. But the parties disputed “what exactly the HOA board approved and whether the fence as built complies with that approval and with the” subdivision’s CCRs. On appeal, the court first noted that defendants failed to “raise laches as an affirmative defense or move for summary disposition on that basis[,]” which generally constitutes a waiver of the defense. While they relied on the fact they did assert equitable estoppel as an affirmative defense, the two “are distinct affirmative defenses with distinct elements,” and the court did not “see how, in this case, defendants’ assertion of the former defense would somehow excuse their failure to assert—and thus their waiver of—the latter.” Further, apart from their waiver of the laches defense, the court agreed “with plaintiff that the trial court erred in its merits assessment of that defense.” In granting defendants’ summary disposition motion, “the trial court made only a conclusory ruling that ‘the delay in seeking to enforce the CCRs would prejudice [d]efendants.’ [It] offered no findings or explanation in support of that conclusion. Nor does the record reveal any grounds for granting” them summary disposition on this basis. The only prejudice that they asserted, “both below and on appeal, are the costs that they incurred in building the fence and would incur by having to remove it. At no point” did they show that those costs were “the result of plaintiff’s delay in not bringing his challenge sooner.” As to the lack of documentary evidence, neither the trial court nor defendants meaningfully explained “why plaintiff would have had to produce evidence regarding the fence’s consistency with board approval to effectively oppose the arguments for summary disposition that defendants advanced in their motion.” Reversed and remanded.