One Court of Justice

On July 31, 2010, the Michigan Supreme Court issued a 4-3 opinion in People v. Mardlin, No. 139146.  Justice Corrigan, joined by Justices Markman, Young, and Weaver, wrote the majority opinion, which reversed the Court of Appeals and affirmed the trial court’s admission of evidence of an unusual number of prior fires associated with property owned by the accused in this arson case.  The Court held the evidence was admissible under the “doctrine of chances””the more an unusual incident occurs, the less likely it is a mistake or accident.  Because it was offered for that purpose, and not to prove bad character or propensity, it did not violate MRE 404(b)(1). And the lack of direct evidence of culpability for the past fires actually weighed in favor of, and not against, admission under MRE 403 because it minimized impermissible negative inferences about his character.  Chief Justice Kelly, joined by Justices Cavanagh and Hathaway, authored a dissenting opinion, arguing that the doctrine of chances did not apply here, and even if it did, the evidence was inadmissible under MRE 403.

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On a dark and stormy night, the victim was walking with his back to oncoming traffic in the middle of the road instead of on a nearby sidewalk.  The victim was severely intoxicated with a blood alcohol content (BAC) of at least 0.268.  Around 2:00 a.m., Defendant hit the victim with his car, and the victim was killed.  Defendant initially left the scene of the accident, but later returned and was arrested.  At the time of the accident, Defendant’s BAC was an estimated 0.091 to 0.115.  Defendant’s blood also contained amounts of 11-carboxy-tetrahydrocannabinol (11-carboxy-THC), a byproduct the body produces as it metabolizes the main psychoactive substance found in marijuana.  After a jury trial, Defendant was convicted of failure to stop at the scene of an accident that resulted in death, MCL § 257.617(3), operating while intoxicated (OWI), second offense, MCL § 257.625(1), and operating a motor vehicle with the presence of a schedule 1 controlled substance in his body, causing death, MCL § 257.625(4) and (8).  On June 8, 2010, the Michigan Supreme Court published its opinion in People v. Feezel, No. 138031, in which it reversed the judgment of the Court of Appeals, vacated Defendant’s convictions, and remanded the case to the trial court.  The Michigan Supreme Court concluded that under some circumstances, evidence of a victim’s intoxication may be relevant and admissible to show the victim’s gross negligence.  The Michigan Supreme Court held that here the trial court abused its discretion in suppressing evidence related to the victim’s intoxication because it was relevant to the element of causation in certain crimes Defendant was charged with.  The Michigan Supreme Court determined that the trial court’s error resulted in a miscarriage of justice and required reversal under MCL § 769.26.

In addition, a majority of the justices (Cavanagh, Kelly, Hathaway, and Weaver) determined that 11-carboxy-THC is not a schedule 1 controlled substance under MCL § 333.7212 of the Public Health Code and overruled People v. Derror, 475 Mich. 316 (2006), which held the opposite.  Under Derror, a person who operates a motor vehicle with the presence of any amount of 11-carboxy-THC in his or her system violates MCL § 257.625(8).  Justice Weaver concurred and joined in Justice Cavanagh’s opinion, with limited exceptions.  Justice Young, joined by Justices Corrigan and Markman, authored an opinion concurring in part and dissenting in part.  Justice Young dissented from the decision to overturn Derror under the doctrine of stare decisis because Derror was not wrongly decided and other relevant factors exist that caution against overruling Derror.  Justice Young opined that the conclusion that 11-carboxy-THC is not a derivative of marijuana under Michigan’s controlled-substance laws conflicts with legislative intent.  Moreover, Justice Young emphasized that there was no need to reach this conclusion because Defendant had trace amounts of actual tetrahydrocannabinol in his system.

On April 6, 2010, the Court of Appeals published its opinion in Dancey v. Travelers Property Casualty Company of America, No. 288615.  The Court affirmed the trial court’s denial of the insurer’s motion for summary disposition on plaintiff’s claim to recover uninsured-motorist benefits arising from plaintiff’s collision with a ladder that was lying in a Detroit-area expressway.  First, the Court found that there were factual questions as to whether this plaintiff and/or the vehicle involved in the accident were added as insureds to a particular business’ automobile policy.  Additionally, the Court addressed the legal question of whether, under these circumstances, the plaintiff could establish she was entitled to uninsured-motorist benefits.  Under the policy, an uninsured vehicle can be an unknown “hit-and-run” vehicle that hits, or “cause[s] an object to hit” an insured vehicle.  In this case, plaintiff’s vehicle struck a ladder that was lying in the expressway, and there was no direct evidence that the ladder came from a vehicle.  After analyzing similar cases, the Court found that under these unique circumstances, where there was evidence that the accident site was not accessible to pedestrians or other non-vehicular traffic, a jury could find a substantial physical nexus between a hit-and-run vehicle and the ladder struck by the plaintiff.  Thus, the Court of Appeals found that summary disposition in favor of the insurer was not appropriate, and affirmed the trial court’s denial of that motion.

On Friday, April 2, 2010, the Michigan Supreme Court ordered oral argument on the application (or miniature oral argument (“MOA”)) in three medical malpractice cases and remanded one case to the Court of Appeals to address the reporting requirements under the child protection law.  The Court also denied leave to appeal in five cases, denied reconsideration in two cases, and dismissed one case on the stipulation of the parties.

The ordered MOAs are to be heard on the same day in Ykimoff v. W.A. Foote Memorial Hospital, No. 139561, and Martin v. Ledingham, No. 138636.  Both cases involve the standard of proving causation in a medical malpractice action arising from the purported failure of nurses to promptly report patients’ worsening conditions to the treating physicians.  In Martin, the Court of Appeals concluded that the trial court properly granted summary disposition against the plaintiff’s claims because the evidence showed that the doctors would not have changed the patient’s treatment even if they had received earlier notice of the patient’s worsening condition.  In Ykimoff, the Court of Appeals affirmed the trial court’s denial of a motion for JNOV in three separate opinions, concluding that the doctor’s testimony that earlier notice of the patient’s worsening condition would not have affected treatment was speculative and therefore the issue of causation was appropriate for submission to a jury.  Our earlier post on Ykimoff is here.  The Michigan Association of Justice submitted an amicus brief in support of the application in Ykimoff.

In Robelin v. Spectrum Health Hospitals, No. 139860, the Court ordered a MOA to address whether the testimony of Dr. Gabriel, plaintiff’s causation expert, met the Daubert/Gilbert standard embodied in MRE 702 and MCL § 600.2955.  The Court of Appeals concluded that although Dr. Gabriel’s theory is novel and not widely accepted within the scientific community, it was sufficiently reliable as an application of the “Sherlock Holmes methodology,” i.e. “once all impossibilities are filtered out, whatever remains, irrespective of its improbability, must be the truth.”  The Michigan Supreme Court invited the Michigan Association for Justice, the Michigan Defense Trial Counsel, and the Michigan State Medical Society to submit amicus briefs.

Finally, in Doe v. Doe, No. 139896, the Michigan Supreme Court partially vacated the decision of the Court of Appeals and remanded the case for the Court of Appeals to reconsider the application of the reporting requirements under the child protection law, MCL § 722.623(1)(a).  The Court of Appeals concluded that the trial court correctly concluded that a genuine issue of material fact existed regarding whether defendants fulfilled their statutory obligation to “immediately” report child abuse.

On December 15, 2009, the Court of Appeals published an opinion in Genna v. Jackson, No. 285746.  The Court affirmed the circuit court’s denial of the defendant’s post-trial motion for JNOV or a new trial, in a case where the plaintiffs sued for mold damage to their condominium.  A jury awarded the plaintiffs, a couple and their two young children, more than $300,000 for mold damage to their condo unit caused by a neglected burst water heater in the defendant’s unit next door.  The opinion can be found here.

 In December 2004, the defendant left her condo for five months in the winter to go to Florida, and returned in May 2005.  While she was gone, her water heater burst and caused extreme flooding and mold growth in her unit.  In February, the young children of the family next door, also plaintiffs in the case, began exhibiting flu-like symptoms which continued to worsen over the next few months and required frequent doctor and hospital visits.  A week before the defendant returned, the mother and children moved out of their unit to a relative’s, and the children’s health began to improve.  The defendant’s unit was so contaminated it had to be demolished, and it had spread to the plaintiffs’ unit.  The plaintiffs’ mold expert testified that two types of mold found in their unit in unusually high concentration caused human illness, and that their unit was no longer a healthy environment. 

 The Court of Appeals rejected the defendant’s argument that the plaintiffs were required to prove causation with expert testimony.  While a jury cannot be allowed to “speculate” on whether causation exists, a jury is not speculating if evidence permitting a reasonable inference of causation exists.  Here, there was sufficient evidence to permit an inference of causation: the timing of the onset and recovery of the illnesses, plus expert testimony regarding the type of mold found and its propensity to cause the kinds of conditions suffered.  The Court held that the plaintiffs were only required to bring forth expert testimony on causation itself if the defendant had provided evidence demonstrating that the mold and accompanying injuries could not have been caused by her negligence.  The defendant asked the jury to infer that a virus, not the mold, caused the illnesses, but that was insufficient to require the plaintiffs to proffer expert testimony to refute a lack of causation.

 The Court of Appeals also denied the defendant’s claim of error in permitting the father to testify about the economic value of the home’s contents which were lost due to mold damage.  A mold expert testified that all porous items were toxic and had to be destroyed.  The Court agreed that the father could testify about what items they discarded because of the mold and the value of those items.  The jury could also apply their common experience about typical items found in a home and their value in assessing the plaintiffs’ damage claim.

On December 1, 2009, the Michigan Court of Appeals published an opinion in Freed v. Salas, No. 283317, affirming the trial court’s various evidentiary and jury-instruction rulings in a jury trial of the defendants’ liability in negligence for the vehicle accident resulting in the death of an ambulance patient.  Chief among the issues presented was the question of whether a high-low agreement entered into between the plaintiff and one of the defendants was properly kept from the jury.  The court found that it was.  It also concluded (1) that dismissal of a defendant driver did not bar suit against the driver’s employer, the owner of the vehicle; (2) that the evidence and expert opinions presented to support the pain-and-suffering award of $9 million was admissible and sufficient to deny JNOV; (3) that the jury instructions did not inaccurately paraphrase the applicable statute in a material manner; (4) that a sudden emergency doctrine instruction was not applicable when the only issue was whether the defendant was speeding, rather than whether he had failed to stop within the assured clear distance; (5) the appellant failed to present impassioned statements by the plaintiff’s counsel or analogous case law demonstrating the verdict was excessive; and (6) the court properly refused to take judicial notice of a disputable issue of fact concerning the speed limit.  Judge Talbot dissented, contending that (1) the accident reconstruction experts improperly opined on the ultimate issue of negligence and apportionment of fault; (2) the forensic pathologist exceeded the scope of his expertise in opining on the defendant’s fear of dying or sense of impending doom; and (3) failure to give the sudden-emergency-doctrine instruction presumes the defendant was speeding, an issue for the jury to decide, not the judge.  The dissent can be found here. Read more »

On November 24, 2009, the Court of Appeals published a 2-1 opinion in Campbell v. Department of Human Services, No. 281592, affirming a judgment for plaintiff entered after a jury trial in a gender discrimination case.  Plaintiff’s gender discrimination claim against her employer was governed by a three-year statute of limitations.  MCL § 600.5805(10).  Defendant argued that evidence of discriminatory acts occurring outside the statute-of-limitations period should have been excluded from trial.  The Court of Appeals held that acts occurring outside the statute-of-limitations period, although not actionable, could nonetheless be used as background evidence to establish a pattern of discrimination in order to prove a timely claim.  The Court of Appeals explained that this evidence is subject to the rules of evidence and applicable law, and may be admitted under the trial court’s sound discretion.  The Court of Appeals emphasized that its holding does not resurrect the continuing-violations doctrine, abolished by the Michigan Supreme Court in 2005, under which a plaintiff could recover based on a prior act occurring outside the statute-of-limitations period.  Judge Murray’s opinion concurring in part and dissenting in part may be found here.

On October 7, 2009, the Michigan Supreme Court denied three applications for leave to appeal.  The Court also took substantive action on two criminal cases which are discussed after the jump. Read more »

On September 30, 2009, the Michigan Supreme Court granted leave to appeal in the matter of Tracy Edry v. Marc Adelman, D.O., P.C., Case No. 138187.  In its order granting leave to appeal, the Court directed the parties to address the following issues:  (1) whether Wickens v. Oakwood Healthcare System, 465 Mich. 53 (2001), was correctly decided; and (2) whether the trial court and Court of Appeals both erred in finding that Dr. Singer’s testimony was inadmissible pursuant to MRE 702. Read more »

On September 23, 2009, the Michigan Supreme Court denied thirteen applications for leave to appeal. It vacated and remanded two criminal cases and one civil case. The Court granted one motion for immediate consideration and it also took substantive action in one criminal case and one civil case. These are discussed after the jump. Read more »

On September 16, 2009, the Michigan Supreme Court denied seventeen applications for leave to appeal and granted one motion in Pierron v. Pierron, No. 138824, striking the defendant’s non-record affidavit, pursuant to MCR 7.210(A)(1), because it contained information that was not part of the record on appeal.  The Court also took substantive action in two criminal and two civil cases which are discussed after the jump. Read more »

On July 21, 2009, the Michigan Court of Appeals published an opinion in People v. Spangler, No., 288632, holding as a matter of first impression that “to determine whether a sexual abuse victim’s statements to a SANE [Sexual Assault Nurse Examiner] are testimonial, the reviewing court must consider the totality of the circumstances of the victim’s statements and determine whether the circumstances objectively indicated that the statements would be available for use in a later prosecution or that the primary purpose of the SANE’s questioning was to establish past events potentially relevant to a later prosecution rather than to meet an ongoing emergency.”  The opinion lists thirteen relevant factors to consider when evaluating the totality of the circumstances.  Because the record was not sufficiently developed to make a proper determination, the Court vacated the lower court’s decision and remanded the case to the trial court for further development and a new decision. Read more »

On July 14, 2009, the Court of Appeals issued a unanimous decision in People v Pinkney, Nos. 282144 and 286992, resolving both the minister’s appeal from his conviction for election law crimes and the revocation of his parole for writing an editorial that, in the lower court’s view, threatened the convicting judge with the wrath of God.  The Court of Appeals rejected all of Pinkney’s claims of error and confirmed that he was properly convicted of a general intent crime even if he did not know his actions were illegal.  It then reversed the trial court’s order revoking Pinkney’s probation after concluding that the blanket prohibition on demeaning and defamatory communications that he violated was unconstitutional because it violated his right to free speech. Read more »

On June 16, 2009, the Court of Appeals published an authored opinion in People v. Breeding, No. 280708, holding that the criminal defendant’s constitutional right to confront adverse witnesses recognized in Crawford v. Washington, 541 U.S. 36 (2004), does not apply to probate revocation hearings.  The Court of Appeals agreed with other federal circuits, including the Sixth Circuit, that the Sixth Amendment, with its Right to Confrontation Clause, only applies to criminal prosecutions.  Post-conviction proceedings for violations of parole are not part of criminal prosecution.  The Court acknowledged, however, that a due process standard applies in determining the admissibility of statements made by out-of-court declarants, and that MCR 6.445(E)(1) grants probationers in Michigan the right to confront adverse witnesses.  In this case, however, the error was not properly preserved below and no plain error was found in admitting the evidence.  Read more »

On Friday, May 29, 2009, the Michigan Supreme Court granted leave in the four cases below, ordered oral argument on the application for leave in one case, and denied leave to appeal in three cases.  The Court also peremptorily reversed the Court of Appeals and reinstated the circuit court’s decisions in two cases, and remanded one case to the Court of Appeals as on leave granted to address a sentencing issues.

People v. Flick, No. 138258 and People v. Lazarus, No. 138261:  The Court granted leave to appeal to determine whether intentionally viewing child pornography on the Internet is knowing possession of child sexual abuse material under MCL § 750.145c(4); and whether the presence of temporary Internet files on the defendant’s computer hard drive is knowing possession of child pornography or evidence of knowing possession of  child pornography in the past.  The Court invited amicus briefs from the Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan.  The Court also held People v. Reiss, No. 137321, in abeyance pending the resolution of Flick and Lazarus. Read more »

On April 22, 2009, the Michigan Supreme Court denied leave to appeal in fourteen cases and held the case of People v. Lewis, Case No. 136622, in abeyance pending the United States Supreme Court’s decision in Melendez-Diaz v. Massachusetts.  Like Melendez-Diaz, Lewis concerns the issue of whether an autopsy report is testimonial under Crawford v. Washington.  In Lewis, the Court must determine whether the defendant’s Sixth Amendment right under the confrontation clause was violated where the trial court properly admitted an autopsy report, authored by two nontestifying medical examiners, through the testimony of a third medical examiner from the same lab.  A copy of the Court’s order can be found here.

 In People v. Pinkey, Case No. 138550, in lieu of granting appeal, the Court remanded the case to the Berrien County Circuit Court for reconsideration of the conditions of the appeal bond.  The Court ordered the trial court within 21 days to articulate the reasons for imposing a “24/7” curfew on the defendant.  The trial court was further ordered to file copies of the transcript and any related documents with the clerk of the Supreme Court.  The Court retained jurisdiction.  A copy of the Court’s order can be found here.

On April 14, the Michigan Court of Appeals released an opinion for publication in Teal v. Prasad, No. 283647, affirming the lower court’s conclusion that, despite supporting expert testimony, the plaintiff failed to establish an issue of fact that the hospital and its professionals in fact caused the patient to commit suicide by releasing him after involuntary admission and treatment.  Read more »

On April 8, 2009, the Michigan Supreme Court denied leave to appeal in three cases, entered miscellaneous orders in two cases, and took substantive action in one civil and one criminal case.  The Court’s order in In re Hudson is addressed in a separate post.

In People v. Trostle, the Court ordered the Kent County Prosecuting Attorney to respond to the defendant’s application for leave to appeal within 28 days.  The Court directed the Kent County Prosecuting Attorney to address Defendant’s contention that his sentence constitutes an unjustified upward departure from the applicable sentencing guideline range.  The Court’s order is here.

In Roberts v. Safewell, the Court granted oral argument on the issue of whether to grant the application for leave to appeal or to take other preemptory action.  At the mini oral argument, the Court directed the parties to address the following: (1) whether the Court of Appeals erred in holding that innocent misrepresentation is not a viable theory of liability under the Seller Disclosure Act; (2) if not, whether the plaintiffs could proceed with their claim to the extent the issue of whether the defendants knew of the termite infestation and intentionally withheld this knowledge was presented to the jury; (3) whether the defendants failed to preserve the argument that a claim for innocent misrepresentation cannot legally be maintained under the SDA by failing to expressly present it at the Court of Appeals; and (4) if so, whether this failure to preserve the issue acted as a waiver of this defense or merely as a bar from the Court of Appeals considering the issue.  The Court’s order can be found here.

In People v. O’Non, in lieu of granting leave to appeal, the Court remanded the case to the Court of Appeals as on leave granted to determine whether the transcript of the defendant’s testimony at his own trial was testimonial under Crawford v. Washington, 541 U.S. 36 (2004), whether any of the statements were hearsay under MRE 801(c), and whether all statements in the transcript that were offered to prove falsity of the matters asserted necessarily were not hearsay under MRE 801(c) and were not barred by Crawford.  The Court’s order is here.

On March 5, 2009, the Michigan Court of Appeals issued a published opinion (authored by Judge Gleicher) in In re Petition of Attorney General for Subpoenas, No. 279570, in which it upheld a circuit court’s quashing of investigatory subpoenae seeking, among other things, a psychologist’s patient records.  The Attorney General’s office, on behalf of the State of Michigan’s Department of Community Health, issued certain investigatory subpoenae to Dr. Gerard Williams in conjunction with an investigation into Dr. Williams’ billing practices.  MCL § 333.16235.  Those subpoenae sought all “billing records, medical records, emergency room records, documentation, treatment records, pathology and laboratory reports and radiology reports” pertaining to ten named patients.  Dr. Williams filed a motion to quash, based on Michigan’s psychologist-patient privilege.  MCL § 333.18237.  The circuit court quashed the subpoenae on that basis and the court of appeals today affirmed that ruling. Read more »