One Court of Justice

On July 29, 2010, the Michigan Court of Appeals released its published opinion in Estate of Jilek v. Stockson, No. 289488.  Daniel Jilek sought treatment at Maple Urgent Care Center complaining of sinus and respiratory congestion, and chest tightness.  Dr. Stockson, board certified in family practice medicine, was the treating physician.  Five days after treatment, Jilek died of heart attack, which occurred as a result of Jilek™s coronary artery disease.  Jilek™s estate sued Dr. Stockson for negligently failing to diagnose the coronary artery disease, arguing that if she had discovered the condition, Jilek would have received proper treatment and his death would have been prevented.  The trial court instructed the jury that the applicable standard of care was that of a physician specializing in family practice and working in an urgent care center.  The trial court also refused to admit several documents describing the internal policies of the Maple Urgent Care Center.  The jury rendered a verdict in favor of Dr. Stockson.  Jilek™s estate appealed, arguing that the trial court applied the improper standard of care and erred in refusing to admit the internal policies.  The Court of Appeals agreed, and reversed and remanded for a new trial.  Read more »

On July 28, 2010, the Michigan Supreme Court denied an application for leave to appeal that was filed with a motion for immediate consideration, which the Court granted.  The Court denied a motion to strike in the same case.

On July 27, 2010, the Court of Appeals published its per curiam opinion in McManus v. Toler, No. 290249.  This is the second appeal arising from this case.  In the first, the Court of Appeals affirmed a verdict of no cause of action in a breach of contract claim where plaintiff alleged he had entered into a contract to sell an investment franchise to his daughter and the defendant if his daughter acquired her licenses in an agreed time-frame.  The trial court and Court of Appeals confirmed there was no breach of the contract where the daughter was not able to acquire the necessary licenses in the requisite time.

Now, the issue in the present appeal is the award of attorney fees pursuant to the offer of judgment rule found in MCR 2.405.  Prior to obtaining the liability verdict, defendant had offered to settle for $25,000, but that offer noted the $25,000 would be in addition to the purchase price for the business.  The Court of Appeals concluded that the statement regarding the purchase of the business did not turn the $25,000 sum certain offer of judgment into a conditional offer outside the scope of MCR 2.405.  Additionally, plaintiff had argued that the case was wholly in equity, and the offer of judgment rule did not apply.  The Court of Appeals found that the plaintiff had asked for damages, and thus the case was a mixed law and equity action.  The Court concluded that the offer of judgment rule applies to such mixed actions, but left open the question of whether it would apply to a purely equitable case.

On July 27, 2010, the Michigan Supreme Court published its consolidated opinion in People v. Flick, Case No. 138258, and People v. Lazarus, Case No. 138261. Justice Corrigan wrote for the 4-member majority affirming the binding over of two criminal defendants for trial on the charge of knowing possession of child sexually abusive material, even though the materials in question were images that had been saved into the temporary internet files of the defendants’ computers.  The majority found that, coupled with evidence that the defendants had purchased and downloaded the images, they had taken affirmative action to exercise dominion or control over the images, meaning that the defendants had actual or constructive possession of the abusive images.  In a dissent authored by Justice Cavanagh, three members of the court found that the prosecution must establish not only power to exercise dominion and control over the material, but also the intent to exercise such control.  Thus, the minority reasons that simply purchasing and viewing such material on the internet is insufficient to support a charge of knowing possession without evidence that a defendant intended to do something (or did something) with the material, other than just view it on the internet, where the computer and not the user, created a temporary internet file.

On July 26, 2010, the Michigan Supreme Court denied 149 applications for leave to appeal, denied two bypass applications for leave, and remanded one case for the ministerial task of correcting a pre-sentence investigation report.

While Fred and Janet were married, they acquired two properties as tenants by the entirety. A tenancy by the entirety is a type of concurrent estate, unique to married couples, that includes the right of survivorship.  Although the probate court found that Frank was not a “surviving spouse” under the Estates and Protected Individuals Code (EPIC), MCL 700.2081(2)(e)(i), which states that a surviving spouse will not be treated as surviving the decedent if a breakdown in marriage is shown, the probate court determined that the statute does not destroy a tenancy by the entirety.  Thus, upon Janet’s death, the properties passed to Frank in fee simple absolute.  The personal representative of Janet’s estate brought this action to seek contribution from Frank for the expenses Janet incurred in maintaining the properties prior to her death.  The probate court granted Frank summary distribution on the estate’s contribution claim, and the Court of Appeals affirmed.  In a 4-3 opinion, the Michigan Supreme Court reversed.

In an issue of first impression, the Michigan Supreme Court held that the equitable doctrine of contribution can be applied between co-tenants by the entirety outside the context of a divorce or separate maintenance proceeding.  In an opinion authored by Justice Markman, and joined by Chief Justice Kelly, and Justices Cavanagh and Corrigan, the majority concluded that Frank had been unjustly enriched because he enjoyed sole ownership of the properties as a result of Janet’s maintenance payments, because they otherwise would have been subject to foreclosure. The majority concluded that the equitable doctrine of contribution could be applied in this context, given Frank’s willful absence in the 18 months prior to Janet’s death, the fact that Janet disinherited Frank and attempted to divest him of his interest in the properties, and the finding that Frank was not deemed a “surviving spouse” under EPIC. Read more »

A jury convicted Jason Gursky of four counts of first-degree criminal sexual conduct, based on testimony from his girlfriend’s daughter that he touched sexually abused her (the daughter) on two occasions, once when she was six and once when she was seven.  The girl testified at trial and was cross-examined by defense counsel, and a friend of the girl’s mother also testified to corroborate that the girl’s testimony at trial was consistent with what the girl had described shortly after the second incident. In People v. Gursky, No. 137251 (published July 22, 2010), the Michigan Supreme Court considered whether the testimony of the mother’s friend was admissible under Michigan Rule of Evidence 803A, which provides that spontaneous statements by a child under the age of ten about sexual abuse are an exception to the rule against hearsay.  All seven justices agreed the statements the girl made to the mother’s friend were not “spontaneous” because the friend brought up the subject of sexual abuse and specifically asked, after running through the names of several men, whether the defendant had abused her.  The Court clarified the rules for determining whether a statement is spontaneous under MRE 403A (see further discussion after the jump).  The majority, with Justice Young writing for the Court, also held that while it was error to admit the friend’s testimony, that error was harmless because (1) the prosecutor offered the testimony merely to corroborate the girl’s testimony, (2) the friend’s testimony was cumulative of the girl’s own testimony, and (3) the friend’s testimony of the girl’s emotional reaction to the questions (the girl responded by looking horrified, sucking her thumb, crying, and gasping for breath) was not hearsay because it was non-verbal conduct that was not intended to be an assertion. Justice Cavanagh, joined by Chief Justice Kelly, dissented on the harmless-error issue, arguing that because the girl’s credibility was the primary issue at trial, admitting the friend’s testimony made it “more probable than not” that excluding the evidence would have resulted in a different outcome at trial.

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Plaintiff filed this medical malpractice action against her OB/GYN, claiming a decrease in her chance of survival due to a year-and-a-half delay in diagnosing her breast cancer, after a node was detected during a routine examination in June 2003. The parties’ experts agreed that Plaintiff would have had a 95% chance of survival if she had been diagnosed in June 2003.  Plaintiff’s expert testified that her survival rate had decreased to 20% by the time she was actually diagnosed in February 2005.

The trial court found that Plaintiff’s expert’s opinion was not sufficiently reliable to be admissible under MRE 702 and excluded it because it was not based on reliable principles or methods, was contradicted by published literature on the subject, and was not supported by any literature other than inapposite Internet material.  The trial court granted Defendants’ motion to dismiss, which argued that without Plaintiff’s expert’s testimony, she could not meet her burden of proof to show a greater than 50% loss of the opportunity to survive, as required by MCL 600.2912a(2).

In a 5-2 opinion issued on July 22, 2010, the Michigan Supreme Court affirmed the Court of Appeals judgment that the trial court did not abuse its discretion by excluding Plaintiff™s expert™s testimony, and that because Plaintiff failed to provide sufficient evidence to support her claims, summary disposition was proper.  Further, the Michigan Supreme Court determined that the exclusion of Plaintiff’s expert’s testimony was dispositive of the outcome in this case, and declined to revisit its decision in Wickens v. Oakwood Healthcare System, 465 Mich 53; 631 NW2d 686 (2001), which held that ”a living person may not recover for loss of an opportunity to survive.

Justices Hathaway and Weaver dissented.  The dissent argued that the trial court focused only on one enumerated criterion of MCL 600.2955 to evaluate the reliability of Plaintiff™s expert.
We previously discussed this case here.

Disclaimer: WNJ submitted an amicus curiae brief on behalf of the Michigan Health & Hospital Association in support of the prevailing Appellees in this case.

On July 22, 2010, the Michigan Court of Appeals published its opinion in State Farm Insurance Co. v. Broe Rehabilitation Services, Inc. No. 289230.  The plaintiff-insurer filed a “complaint for discovery” against the defendant-healthcare-provider.  The plaintiff asked the trial court to compel the defendant to provide medical records and to force the defendant™s employees to submit to examinations under oath in order to allow the plaintiff to determine whether the defendant was properly billing the plaintiff and whether the treatments were covered.  The defendant had refused to do either.  The defendant sought summary disposition on the ground that the trial court had no jurisdiction because “there was no dispute between the parties.  The trial court denied summary disposition and issued an order compelling discovery.  The Court of Appeals affirmed the trial court™s denial of summary disposition. 

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On Monday, July 19, 2010, the Michigan Supreme Court ordered the interim suspension of 12th District Judge James M. Justin pending expedited review by the Judicial Tenure Commission and the Michigan Supreme Court .  Chief Justice Kelly and Justice Cavanagh dissented from the order, and Justice Weaver did not participate.  In McCarthy v. Scofield, Nos. 138034 & 140328, Justices Weaver, Corrigan, Young, and Markman denied the plaintiff-appellant’s motions to disqualify them.