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Supreme Court Republican majority engages in "peversity;" conflates "substantive law...with procedural rules;" and refuses to "hold defendants to the same standard we hold plaintiffs." And that's from the fifth Republican!

The Michigan Supreme Court recently issued an important ruling regarding the procedural rules involving medical malpractice cases.  To no ones' surprise, the Republican majority used the occasion to summarily throw out victim/plaintiff cases.  It was a surprise, however, when one of the five Republican Justices refused to sign the majority opinion and wrote a partial dissent archly criticizing the basic unfairness of the majority's holding. 

The occasion was the Court's analysis of two consolidated cases where a plaintiff had misinterpreted the procedural requirements of medical malpractice "reforms" and filed a lawsuit before the expiration of the 182-day "waiting period." In Tyra v. Organ Procurement Agency, et al., and in Furr v. McLeod, et al, lower courts had held that Michigan Supreme Court precedent would allow the procedural amendment of the Plaintiffs' complaints to overcome a minor error (such as a 3-day calculation error).  In both of the lower court cases, the Court of Appeals conflict resolution panel had determined that precedent and court rule operated to allow the Plaintiff to "fix" the timing error to enable the Court to achieve a just result.

On appeal to the Supreme Court, however, the four most insurance-dominated Justices (nominated through the Republican Party) rejected the pertinent Court Rule language, rejected the lower courts' analysis of the case precedents, and ruled that neither victim's family would get a "day in court."  Justice Viviano, who was recently added to the Court through a Republican nomination and who usually votes with the majority rejected this outcome.

Justice Viviano noted that the majority's decision "inexplicably leaves unresolved a compelling threshold issue raised by the plaintiff...if she is to be held to procedural requirements, so should defendants." (Emph supp)  The Justice noted that the majority's arguments of plaintiff abandonment of issues was "irrelevant" and "a red herring."  As he pointed out, "Plaintiff did exactly what was requested of her by this is a perversity of the 'abandonment' doctrine for this Court to avoid a preserved issue argued at the time and place directed by the Court."

The apparently incensed and less politicized Justice continued, pointing out that the Defendant in Tyra failed to adequately allege the affirmative defense it now relied upon to dismiss the Plaintiff's case and thereby breached its own required duty to "give the plaintiff fair notice" [and an opportunity to correct]. "Global allegations [like the Defendants'] do not provide reasonable notice to a plaintiff of how, why, or to what extent...her cause of action is barred."  He pointed out that "[I]t is virtually impossible for a plaintiff to take a responsive position to such a broad allegation" and that the Majority's repudiation of the Plaintiff's cause of action incorporates a "basic legal flaw...that conflates substantive rules of law with procedural rules."

As the Justice pointed out in concluding, "We rejected this...premise that our statutes and court rules permit defendants to unilaterally determine whether a plaintiff's pleading is adequate."  Rejecting the outcome approved by the insurance-oriented majority, Justice Viviano explained that he "would hold defendants to the same standard we hold plaintiffs:  compliance with their procedural obligations under our rules."  The two Justices nominated by the Democratic Party concurred in Viviano's dissent. 

And despite a rule providing for the amendment of all pleadings where substantial justice will be served, someone miscalculating a deadline and filing three days early will be denied a day in court---but a defendant who fails to follow the rules governing filing an answer suffers no penalty, and in fact benefits from his non-compliance.

We should think of another, more appropriate name for "justices."  Perhaps "politicos" or "special interest arbiters."  We need a name that more accurately describes both the process and the outcome of litigation in Michigan.

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