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More favoritism to Defendants: form over substance ejects an elderly widow from court

Leona Babbish's husband filed a malpractice case against his urologist.  His doctors did not file a timely answer and were defaulted.  They asked the Oakland Circuit judge to set aside the default and he did.  Six months later, Babbish died, and his attorney withdrew from the case.  It took Leona four months to retain a new attorney and to file a motion to replace her husband as plaintiff with his estate.  The court denied her the right to substitute parties, saying she delayed too long, even though it acknowledged that the Defendants had suffered no prejudice

The Court of Appeals held that the elderly widow was "negligent" in failing to act more quickly to retain new counsel, open her husband's estate and petition to substitute the estate as plaintiff, and upheld the complete dismissal of her claim.  Not surprisingly, Engler favorite Bill Whitbeck signed on this opinion, characterizing the outcome as "wtihin the range of principled and reasonable outcomes".  We cannot agree.  Maybe her claim was a weak one, but penalizing an elderly widow for taking four grieving months to hire a new attorney, open a probate estate, and then substitute the estate in pending litigation is hardly "principled" or "reasonable".  This brief delay--which admittedly caused no prejudice to a party who had earlier been given relief from its own improper delay--should not have served as an excuse to deny her a day in court and a decision on the merits of her claim.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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