Credentials alone are generally insufficient to establish reliability of expert testimony, says MSC

For expert testimony to be considered reliable in a medical malpractice matter, the expert must have more than just experience and credentials as a basis for his opinion, according to the Michigan Supreme Court in Elher v. Misra, No. 150824.  In addition to qualifications, the expert must also have support establishing that the opinion had some basis in fact and that it was the result of reliable principles or methods.  Here, the lack of peer review literature in the face of literature contradicting the expert, combined with lack of any other support, rendered the testimony inadmissible.  The court emphasized, however, that peer review literature is not always necessary or sufficient to satisfy MRE 702.  To read our previous blog post about the Court of Appeals’ opinion, click here. Read More

A party who agrees that an arbitration clause does not apply is bound by that stipulation, regardless of the harsh results, says COA

A party who expressly waives its right to arbitration forgoes the ability to later assert that right in litigating the remaining unsettled claims against an opponent; notwithstanding the harsh results to the waiving party, held the Michigan Court of Appeals in Nexteer Automotive Corporation v Mando America Corporation, No. 324463.  The other party is not required to show prejudice to enforce the waiver.  Read More

COA – Reimbursement for chiropractic services not required under Michigan No-Fault Act as services did not fall under 2009 definition of “practice of chiropractic service”

Under MCL 500.3107b(b), an auto insurance company is not required to reimburse an insured for certain chiropractic services, even though the services were lawfully rendered and reasonably necessary, because the disputed services they did not fall within the definition of “practice of chiropractic” as the definition existed on January 1, 2009, held the Michigan Court of Appeals in Measel v. Auto Club Insurance Company, No. 324261Read More

COA says that ordering a property owner to cease all activity on a designated wetland does not constitute a taking

An owner of land is presumed to have notice of the statutory ramifications of his or her land being designated as a wetland.  As a result, when a court orders a landowner to cease all activity on land properly designated as a wetland, the order does not constitute a taking, the Court of Appeals held in Department of Environmental Equality v Morley, No. 323019. Read More

COA – DHHS could not recover Medicaid debt incurred by decedents’ estates consistent with due process

In the consolidated appeals of In re Estate of Gorney, Nos. 323090, 323185, 323304, and 326642, the Michigan Court of Appeals held that the Department of Health and Human Services (“DHHS”) could not recover debt from the decedents’ estates incurred through Medicaid services before the Michigan estate recovery program was approved by the federal government and implemented by the State.  However, in light of a previous Court of Appeals’ decision, the Court held that DHHS had afforded sufficient statutory notice and judicial process to meet due process requirements by including estate recovery provisions in redetermination applications for Medicaid benefits. 
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MSC grants oral argument to consider whether the Court of Claims has authority to determine compensation rate

In Michigan Association of Governmental Employees v. Michigan, No. 147511, the Michigan Supreme Court granted oral argument on the application to consider whether the plaintiff’s breach of contract claim is cognizable in the Court of Claims.  The parties disagreed on a percent increase for the compensation agreement for fiscal years 2009-2011.  The Court of Claims granted summary disposition in favor of defendants with regard to plaintiff’s claims of unjust enrichment and equal protection, but granted summary disposition, in part, in favor of plaintiff with regard to the breach of contract claim.  The plaintiff did not appeal the ruling regarding the unjust enrichment and equal protection claims.  The Court of Appeals affirmed. Read More

MSC to determine whether statute operates as statute of repose or statute of limitations

In Frank v. Linkner, No. 151888, the Michigan Supreme Court granted leave to appeal to consider when the plaintiffs’ cause of action accrued and whether MCL 450.4515(1)(e) constitutes a statute of repose, a statute of limitations, or both.  MCL 450.4515(1)(e) sets forth the time period a member may bring an oppression claim for damages, which is either three years after the cause of action accrues, or two years after its discovery, whichever comes first.  The trial court determined the plaintiffs’ action was time barred because MCL 450.4515(1)(e) acted as a three-year statute of repose.  The Court of Appeals concluded the statute was not a statute of repose, but a statute of limitations.  The Michigan Supreme Court granted leave to appeal on two issues: (1) whether MCL 4515(1)(e) is a statute of repose, a statute of limitations, or both; and (2) when the plaintiffs’ cause of action accrued. Read More

MSC grants oral argument to consider scope of district court funding and revenue sharing

In City of Huntington Woods v. City of Oak Park, No. 152035, the Michigan Supreme Court granted oral argument on the application to consider whether all cities in a judicial district are required to fund the district court and whether the cities are entitled to revenue sharing of court-imposed fees.  The trial court granted partial summary disposition for the defendants, finding that both parties were obligated to fund the district court and that the court funds were not subject to distribution under MCL 600.8379.  The Court of Appeals affirmed, holding that cities served by a district court located elsewhere must financially support that district court, and that the cities are not entitled to share in court revenues collected for purposes other than prosecution (i.e. fees are not “fines and costs” that must be shared). Read More

MSC grants MOA to consider what creates a question of fact as to gross negligence

The Michigan Supreme Court granted oral argument on the application in Estate of McLain v City of Lansing Fire Department, No. 151421, to consider whether an intern’s progress notes, without supporting testimony, created a genuine issue of fact on the issue of gross negligence. Read More

MSC grants MOA to consider whether relation-back doctrine applies to the addition of necessary parties

The Michigan Supreme Court granted mini-oral argument in Graham v Foster, No. 152058, to consider whether, pursuant to the relation-back doctrine, a necessary-party defendant may be added to a lawsuit after the statute of limitations has expired. Read More
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