COA holds that points under OV 4 must be supported by evidence of psychological harm to victim

In People v. McChester, No 318145, the Michigan Court of Appeals held that under Offense Variable 4, for psychological injury to a victim, points may only be assessed where a preponderance of the evidence supports the proposition that the victim suffered serious psychological injury.

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MSC grants mini-oral argument on whether a court must consider all seven factors in MCL 600.2955(1) when determining an expert witness’s reliability

In Cullum v. Lopatin, No. 149955, Cullum sued Dr. Lopatin for medical malpractice after he developed avascular necrosis (AVN) in his right hip bone allegedly following Dr. Lopatin’s steroid treatment of his sinusitis. Cullum alleged that AVN is a well-known potential side effect of that treatment. Cullum submitted two affidavits of merit with his claim. One stated that Dr. Lopatin breached his standard of care; the other stated that the treatment was the probable cause of Cullum’s AVN.  As is frequently the case in medical malpractice actions, Cullum’s case boiled down to a battle of the experts.  The trial court found Cullum’s expert’s testimony to be too speculative.  The Court of Appeals found the trial court’s expert analysis lacking.  The Michigan Supreme Court granted argument on the application for leave on the following issues: (1) whether the trial court was required to consider all of the factors in MCL 600.2955(1) in light of Edry v. Adelman, 486 Mich. 634 (2010); (2) whether the trial court abused its discretion in holding that plaintiff’s expert’s opinion was inadmissible under MRE 702 because it was based on speculation; and (3) whether the Court of Appeals applied the correct standard of review. Read More

COA holds that defendant cannot be sentenced as both a general habitual offender and a SORA habitual offender

In People v. Allen, No. 318560, the Michigan Court of Appeals held that the trial court erred by sentencing the defendant under both the general habitual offender provision, MCL 769.10(1)(a), and the SORA habitual offender provision, MCL 28.729(1)(b). The defendant was convicted of failing to register as a sex offender under the Sex Offender Registration Act, MCL 28.729(1)(b) pursuant to a jury trial. The court held that since the language in the general habitual offender statute directs the court to sentence the defendant to a maximum term that is not more than one and one-half times the sentence for a first offense for that crime, the trial court erred by sentencing the defendant to one and one-half times the maximum sentence under the SORA habitual offender provision.
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MSC to decide whether contractors that prevail on contract claims are entitled to attorney fees under the Construction Lien Act where their lien foreclosure claims remain unresolved

In Ronnisch Construction Group Inc. v. Lofts on the Nine, L.L.C., No. 150029, the Michigan Supreme Court granted the application for leave to appeal the Court of Appeals’ July 24, 2014 judgment.  The Court of Appeals held that a lien claimant under the Construction Lien Act may be entitled to recover attorney fees even when the lien claim is not fully adjudicated.  Further, a lien claimant may be entitled to attorney fees even though its related breach of contract claim is settled and the lienee reasonably disputes the amounts owed. Read More

MSC to determine where remaining funds donated to help ailing man should go

What happens to funds donated by third party donors to defray a private citizen’s unexpected medical expenses if money remains after the beneficiary dies? That is the question the Michigan Supreme Court will decide in In re Filibeck, No. 149671. Read More

COA considers whether certain claims in a church dispute are barred by the religious protections of the First and Fourteenth Amendments

The Michigan Court in the consolidated cases of Pilgrims Rest Baptists Church v. Pearson, SR., No 318797 and Pilgrims Rest Baptists Church v. Mayfield, No. 319571 held that in cases dealing with a religious entity, (i) claims for conversion are justiciable  (ii) employment claims against a church are non-justiciable, and (iii) claims involving membership and property rights of members of a church board of directors may be justiciable if the issues do not involve the interpretation of religious doctrines and religious polity. Read More

COA holds that trial court lacks authority to dismiss criminal charges unless defendant remains incompetent to stand trial for full statutory 15-month period

In People v. Demond Earl Davis, No. 319436, the Michigan Court of Appeals held that under 330.2030(2), both the prosecution and defense have a right to present evidence regarding the defendant’s competency before the trial court makes a redetermination regarding the defendant’s competency to stand trial.  Further, pursuant to MCL 330.2034(1), a trial court lacks authority to dismiss criminal charges until and unless a defendant remains incompetent, despite treatment, for the full statutory 15-month period.  Here, because the prosecutor was denied the opportunity to present evidence about the defendant’s competency, and because the trial court failed to wait the requisite 15-month period before dismissing the charges, the trial court’s decision to dismiss charges was reversed, the charges were reinstated, and the case was remanded for further proceedings consistent with this opinion.
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Michigan Supreme Court upholds full privilege from discovery for reports created by peer-review committees in hospital investigations

To improve the quality of care provided in hospitals and reduce morbidity and mortality among hospital patients, the Michigan legislature passed MCL 333.21513(d), which imposes a duty on hospitals to create peer-review committees to candidly assess hospital practices.  To facilitate this type of assessment, the Legislature also passed MCL 333.20175(8) and MCL 333.21515, which shield the records, data, and knowledge collected for or by these peer-review committees from disclosure.  In Krusac v. Covenant Medical Center, Inc., No. 149270, the Michigan Supreme Court considered whether there existed an exception to this protection to allow for the discovery of objective facts contained within these reports.  Vacating the order of the trial court, the Supreme Court held that the statute does not contain such an exception and remanded the case for further proceedings. Read More

COA holds that trial court erred by charging defendant probation enhancement fee

In People v. Juntikka, No. 318300, the Michigan Court of Appeals held that MCL 771.3(2)(d) does not authorize trial courts to impose a probation enhancement fee. The defendant was sentenced to five years of probation for failing to register as a sex offender under MCL 28.729, and the trial court imposed a $100 probation enhancement fee. On defendant’s objection, the trial court noted that the fee went to pay for equipment for probation agents such as gloves and cell phones. MCL 771.3 provides that the court may impose costs as a condition of probation, but those costs “must be limited to expenses specifically incurred in prosecuting the defendant or providing legal assistance to the defendant and supervision of the probationer.”
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COA holds that trial court cannot order MSP to retest blood alcohol

In People v. Green, No. 321823, the Michigan Court of Appeals held that the trial court did not have statutory authority to order the Michigan State Police to retest a sample of blood collected from the defendant, who is charged with operating while intoxicated causing serious injury, MCL 257.625(5). The police took a sample of blood after the defendant hit a pedestrian while operating a motorcycle. The test conducted by the Michigan State Police revealed his blood alcohol level to be .092 grams of alcohol per 100 milliliters of blood. The defendant moved to have the same vial of blood retested by the Michigan State Police, and the court granted the motion, reasoning that the challenge to the blood test was based on guidelines that had since been changed. On appeal by the prosecution, the court held that the statute allowing for independent testing of blood or urine samples taken from criminal defendants only applied to independent testing at the defendant’s expense, not retesting by the same analyst who tested the original sample.
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