The Michigan Supreme Court (MSC) will hear oral arguments in 12 cases on Wednesday, October 4, and Thursday, October 5, beginning at 9:30 a.m., in the Old Supreme Court Chambers at the State Capitol Building for the first case only, with the remaining cases being heard in the 6th floor courtroom at the Michigan Hall of Justice at 925 W. Ottawa, Lansing. Oral arguments will be livestreamed from the MSC website.
The notice of cases is posted on the Supreme Court’s oral arguments web page.
The following brief accounts may not reflect the way that some or all of the court’s seven justices view the case. The attorneys may also disagree about the facts, issues, procedural history, and significance of this case. For further details, contact the attorneys.
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Wednesday, October 4, 2023
Morning Session – 9:30 a.m.
State Capitol Building, Old Supreme Court Chambers
163961
PEOPLE OF THE STATE OF MICHIGAN, (attorney Joshua Miller)
Plaintiff-Appellee, (attorney
v
(Appeal from Ct of Appeals)
(Oakland CC - Langford-Morris, D.)
MATTHEW SCOTT DUFF, (attorney Issa Haddad)
Defendant-Appellant.
While on routine patrol, two sheriff’s deputies saw the defendant sitting in a parked car, with the engine running, in an empty elementary school parking lot at 10 p.m. on a Sunday night. The deputies pulled into the lot and parked their marked patrol vehicle at an angle roughly 10 feet behind the defendant’s car. The defendant could not pull forward without driving off the pavement, and he could not back out in a straight line without striking the deputies’ patrol car. The deputies claim that as they approached the vehicle, they observed signs of alcohol consumption. They eventually arrested the defendant, and he was charged with operating while intoxicated, third offense. The defendant brought a pretrial motion to suppress evidence of his intoxication on Fourth Amendment grounds. The trial court denied the motion, and the Court of Appeals denied the defendant’s application for leave to appeal. But the Supreme Court, in lieu of granting leave to appeal, remanded the case to the trial court with instructions to determine when the defendant was first seized for Fourth Amendment purposes. On remand, the trial court determined that the initial seizure occurred when the deputies positioned the patrol car behind the defendant’s car and pointed the spotlight at the driver. The trial court determined that the seizure was invalid and granted the defendant’s motion to suppress. The trial court subsequently granted the defendant’s motion to dismiss. The Court of Appeals reversed the trial court in a 2-1 unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the totality of the circumstances surrounding the officers’ conduct of partially obstructing the defendant’s ability to move his vehicle would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter, see People v Lucynski, ___ Mich ___ (Docket No. 162833, decided July 26, 2022); and (2) whether People v Anthony, 327 Mich App 24, 40 (2019), correctly held that “only if officers completely block a person’s parked vehicle with a police vehicle is the person seized.”
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Wednesday, October 4, 2023
Resume Morning Session – 10:50 a.m.
Hall of Justice, 6th Floor Courtroom
Annual Report of the Michigan Supreme Court Historical Society – Karl Herstein, MSCHS President
164298
MONICA MARION, as Guardian and Next Friend of JACOB MARION, (attorney Michael Cafferty)
Plaintiff-Appellee, (attorney
v
(Appeal from Ct of Appeals)
(Wayne CC - Barry, A)
GRAND TRUNK WESTERN RAILROAD COMPANY, STEVEN GOLOMBESKI, and JESSIE WILSON, (attorney Mary O'Donnell)
Defendants-Appellants.
The 14-year-old plaintiff was injured when he was struck by a train while he was walking home from school on train tracks. The plaintiff, by his next friend, brought a negligence lawsuit against the defendants. The defendants sought summary disposition, arguing that, under Michigan law, they may presume that a person on train tracks, such as the plaintiff, will get off the tracks before being hit. The trial court granted summary disposition on this basis. The Court of Appeals reversed in a published opinion, concluding that the defendants possessed a duty to stop the train when it became apparent that the plaintiff did not hear the warnings. The Supreme Court has ordered oral argument on the application to address: (1) whether the defendants were entitled to presume that the plaintiff would leave the tracks before being struck by the train; (2) whether the defendants possessed a duty to slow or stop the train to avoid a possible collision with the plaintiff; and (3) if both of the preceding questions are answered in the affirmative, at what point does the entitlement to a presumption that a person will leave the tracks give way to the duty to act to avoid a possible collision, if at all. See Lake Shore & MSR Co v Miller, 25 Mich 274, 278-279 (1872), overruled on other grounds, Bricker v Green, 313 Mich 218 (1946).
164190
REBECCA MILNE, Personal Representative of the ESTATE OF RILEY ROBINSON, (attorney Matthew Klakulak)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Missaukee CC - Fagerman, W.)
LARRY ROBINSON, SR., (attorney Daniel Saylor)
Defendant-Appellee, and
ANN ROBINSON,
Defendant.
Defendant Larry Robinson, Sr.’s two minor grandchildren were involved in an off-road vehicle (ORV) accident that occurred on his property. The younger child died as a result of injuries sustained in the accident. The child’s mother, as next friend and personal representative of the child’s estate, commenced a civil action alleging that the defendant was liable for the decedent’s injuries because he was negligent. The trial court granted summary disposition in favor of the defendant, concluding that the Recreational Land Use Act, MCL 324.73301 et seq., applies and precludes relief. The trial court also denied the plaintiff’s motion to amend the complaint to add a claim under the owner’s liability provision of the Motor Vehicle Code, MCL 257.401(1). The Court of Appeals affirmed in a published opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the owner’s liability provision of the Motor Vehicle Code, MCL 257.401(1), irreconcilably conflicts with the Recreational Land Use Act, MCL 324.73301(1), as to the defendant’s liability for the decedent’s injury; (2) whether the pertinent inquiry in resolving the apparent statutory conflict in this case is to determine which provision is more specific; and (3) if so, what is the appropriate framework for determining which provision is more specific?
163224
PEOPLE OF THE STATE OF MICHIGAN, (attorney Alena Clark)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Genesee CC - Fullerton, J.)
KEVIN LIONEL THOMPSON, JR., (attorney Lindsay Ponce)
Defendant-Appellant.
The defendant was convicted of felony murder, armed robbery, conspiracy to commit armed robbery, and felony-firearm based on the robbery and fatal shooting of a pizza delivery man. The defendant took a pretrial polygraph examination, and the defendant’s trial counsel claims there was an agreement with the prosecution that there would be no post-polygraph interview. Nevertheless, there was a post-polygraph interview at which defendant made incriminating statements. The defendant argues that trial counsel was ineffective in failing to enter into a written agreement with the prosecution regarding the terms of the polygraph examination or by failing to place the terms on the record. The trial court denied the defendant’s motion for a new trial and the Court of Appeals affirmed the defendant’s convictions in a 2-1 unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether trial counsel’s performance was objectively unreasonable with respect to the defendant’s polygraph examination and/or post-polygraph questioning, including the failure to establish the terms of the polygraph agreement in writing, to enforce the terms of the alleged agreement, and to testify regarding the terms of the agreement; and (2) whether the defendant was prejudiced or if he voluntarily waived his right to counsel with respect to the polygraph examination and/or post-polygraph questioning.
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Wednesday, October 4, 2023
Afternoon Session – 1:15 p.m.
162302
JOELYNN T. STOKES, Personal Representative of the ESTATE OF LINDA HORN, (attorney Ramona Howard)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Oakland - Matthews, C.)
MICHAEL J. SWOFFORD, D.O., and SOUTHFIELD RADIOLOGY ASSOCIATES, PLLC, (attorney Michael Cook)
Defendants-Appellants.
This medical malpractice case was brought by the personal representative of the Estate of Linda Horn (plaintiff) against Michael J. Swofford, D.O., and his practice group. The plaintiff provided an affidavit of merit executed by a physician specializing and board certified in the field of neuroradiology. The defendants filed an answer and an affidavit of meritorious defense executed by Dr. Swofford in which he averred that he was board certified in diagnostic radiology at the time of the events giving rise to the plaintiff’s action. The plaintiff brought a motion to confirm that neuroradiology was the one most relevant specialty or subspecialty under Woodard v Custer, 476 Mich 545 (2006), but the trial court denied the motion. The Court of Appeals reversed in a published opinion, determining that the most relevant specialty was neuroradiology. The Supreme Court ordered oral argument on the application. Following oral argument, the Supreme Court granted leave to appeal and directed the parties to include among the issues to be briefed: (1) whether Woodard v Custer, 476 Mich 545 (2006), was correctly decided and is consistent with the requirements of MCL 600.2169(1); (2) if not, whether it should nonetheless be retained under principles of stare decisis, Robinson v City of Detroit, 462 Mich 439, 463-468 (2000); (3) if Woodard should be retained, whether a defendant’s practice of only a single medical specialty affects the application of Woodard’s “one most relevant specialty” requirement, 476 Mich at 560; (4) if Woodard was not correctly decided and should not be retained, the test that should be applied under MCL 600.2169(1); and (5) whether the Court of Appeals reached the right result under the proper application of the requirements of MCL 600.2169 in this case. The Supreme Court directed the Clerk to schedule the oral argument in this case for the same future session of the Court when it will hear oral argument in Selliman v Colton, MD (Docket No. 163226).
163226
ANTONIO SELLIMAN, (attorney Rachel Ratton)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Oakland CC - Matis, J.)
JEFFREY J. COLTON, M.D., JEFFREY J. COLTON, PLLC, and COLTON CENTER, (attorney Jeffrey Gerish)
Defendants-Appellees.
In this medical malpractice case, the defendants filed a motion to strike the plaintiff’s sole expert witness and for summary disposition on the basis that the expert’s one relevant specialty was facial plastic and reconstructive surgery, and the plaintiff’s expert testified in his deposition that he devoted 90% of his practice to otolaryngology and 10% to facial plastic and reconstructive surgery. The trial court denied the motions, finding it unclear whether the expert testified as the defendants contended. The Court of Appeals reversed in an unpublished opinion, holding that the trial court abused its discretion, because the expert unequivocally testified that 10% of his practice was facial plastic and reconstructive surgery procedures and 90% was ENT procedures, and the most relevant specialty in this case was facial plastic reconstructive surgery. The Supreme Court ordered oral argument on the application. Following oral argument, the Supreme Court granted leave to appeal and directed the parties to include among the issues to be briefed: (1) whether Woodard v Custer, 476 Mich 545 (2006), was correctly decided and is consistent with the requirements of MCL 600.2169(1); (2) if not, whether it should nonetheless be retained under principles of stare decisis, Robinson v City of Detroit, 462 Mich 439, 463-468 (2000); (3) if the “one most relevant specialty” test as set forth in Woodard is not consistent with MCL 600.2169(1) and should not be retained, the test that should be applied; (4) if Woodard’s interpretation of “majority of . . . professional time” is not consistent with MCL 600.2169(1) and should not be retained, the correct interpretation; and (5) whether the Court of Appeals reached the right result under the proper application of the requirements of MCL 600.2169 in this case. The Supreme Court directed the Clerk to schedule the oral argument in this case for the same future session of the Court when it will hear oral argument in Stokes v Swofford, DO (Docket No. 162302).
Thursday, October 5, 2023
Morning Session – 9:30 a.m.
164133
PEOPLE OF THE STATE OF MICHIGAN, (attorney Molly Schikora)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Allegan CC - Bakker, M.)
DANIEL ALBERT LOEW, (attorney Heath Lynch)
Defendant-Appellant.
The defendant was convicted by a jury of multiple counts of first-degree criminal sexual conduct, second-degree criminal sexual conduct, and third-degree criminal sexual conduct. While his appeal of right was pending, he learned that, during the trial, the trial judge had initiated ex parte email communications with the elected county prosecuting attorney, inquiring about specific aspects of this case. On the defendant’s motion, a different judge granted him a new trial because the ex parte communications created the appearance of impropriety. The Court of Appeals reversed in a 2-1 published opinion, concluding in part that the emails amounted only to acceptable administrative matters. The Supreme Court has granted leave to appeal to address: (1) whether the Court of Appeals correctly concluded that the ex parte communications in this case did not violate Canon 3(A)(4)(a)(i) of the Code of Judicial Conduct because they were merely administrative in nature; (2) whether a trial court may properly grant a new trial in a criminal case based on an appearance of impropriety where Canon 3(A)(4) governs the conduct at issue, see In re Haley, 476 Mich 180, 194-195 (2006); (3) if the ex parte communications here give rise to legal error for either a violation of Canon 3(A)(4)(a) or an appearance of impropriety, whether the standard for ascertaining reversible prejudice requires a showing of actual harm to the defense, or is instead determined by weighing other factors as well, see, e.g., Liljeberg v Health Servs Acquisition Corp, 486 US 847 (1988); and (4) whether the defendant is entitled to a new trial under MCR 2.003 or constitutional guarantees of due process of law.
163805
PEOPLE OF THE STATE OF MICHIGAN, Eaton County Prosecutor’s Office
Plaintiff-Appellee, (attorney
v
(Appeal from Ct of Appeals)
(Eaton CC - Cunningham, J.)
DAMON EARL WARNER, (attorney Steven Helton)
Defendant-Appellant.
The defendant was charged with one count of first-degree criminal sexual conduct (CSC I) and one count of second-degree criminal sexual conduct (CSC II). Following a trial in 2017, a jury found him guilty of CSC II, but could not reach a verdict on the CSC I count. After the defendant was sentenced on the CSC II conviction, the prosecutor dismissed the CSC I charge without prejudice. The defendant appealed his CSC II conviction, and the Court of Appeals reversed that conviction and remanded the case to the trial court for a new trial. On remand, the trial court granted the prosecutor’s motion to amend the information to reinstate the dismissed CSC I charge. Following a retrial, a jury convicted the defendant of CSC I and found him not guilty of CSC II. The trial court sentenced the defendant to 20 to 40 years in prison. On appeal, the defendant argued, among other things, that: (1) the trial court exceeded its authority by granting the prosecutor’s motion to amend the information to include a charge that had been dismissed pursuant to an order of nolle prosequi, and then conducting a trial on that charge; and (2) the trial court denied his right to due process and equal protection when it denied his motion for funds to retain an expert in false confessions. The Court of Appeals affirmed in a published opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether, under MCL 767.29 and MCR 6.112(H), a trial court may amend an information, over objection, to include a charge that was dismissed pursuant to an order of nolle prosequi, without beginning the proceedings anew, “unless the proposed amendment would unfairly surprise or prejudice the defendant,” MCR 6.112(H); (2) if so, whether the Eaton Circuit Court erred by doing so in this case and whether any error was harmless; and (3) whether the trial court abused its discretion by denying the defendant’s motion to appoint an expert in false confessions.
164302
TAMMY McNEILL-MARKS, (attorney Kevin Kelly)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Gratiot CC - Tahvonen, R.)
MIDMICHIGAN MEDICAL CENTER-GRATIOT, (attorney Neil Marchand)
Defendant-Appellee.
The plaintiff was employed as a nurse at MidMichigan Medical Center-Gratiot (defendant).
Unrelated to her employment, the plaintiff had obtained a personal protection order (PPO) against Marcia Fields. The plaintiff encountered Fields when Fields came into the hospital as a patient. The plaintiff contacted her attorney and advised him of Fields’s presence at the hospital. The plaintiff advised her attorney not to serve Fields with an updated PPO at the hospital, but the PPO was nevertheless served on Fields at the hospital. The defendant terminated the plaintiff’s employment for violating the Health Insurance Portability and Accountability Act and the defendant’s confidentiality policies. The plaintiff filed suit against the defendant, alleging that her termination violated the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., and Michigan public policy because the defendant terminated her for either reporting Fields’s violation of the PPO to plaintiff’s attorney or being about to report that violation to the circuit court. The trial court granted summary disposition in the defendant’s favor, concluding that the plaintiff’s attorney was not a “public body” under the WPA. The Court of Appeals reversed in a published opinion. The Supreme Court granted oral argument on the application to consider this question and also directed supplemental briefing on the question whether the plaintiff’s communication to her attorney constituted a “report” under the WPA. The Supreme Court subsequently denied leave to appeal. The case returned to the trial court, where the defendant filed a new motion for summary disposition, this time arguing that the plaintiff’s communication was not a “report.” The trial court granted summary disposition in the defendant’s favor, but the Court of Appeals reversed in an unpublished opinion, opining that the defendant’s argument was precluded by the law-of-the-case doctrine. The Supreme Court peremptorily reversed that decision and remanded the case to the Court of Appeals for consideration of the plaintiff’s remaining appellate issue. On remand, the Court of Appeals, in an unpublished opinion, affirmed the trial court’s grant of summary disposition in the defendant’s favor, opining that the plaintiff’s communication to her attorney was not a “report” under the WPA. The Supreme Court has ordered oral argument on the application to address whether the communication from the plaintiff to her attorney regarding Marcia Fields’s presence at MidMichigan Medical Center-Gratiot amounted to a “report,” as that word is used in Section 2 of the Whistleblowers’ Protection Act (WPA), MCL 15.362. In answering this question, the Supreme Court has directed the parties to address: (1) whether the WPA requires that the plaintiff’s communication be to an individual with the authority to address the alleged violation of law; (2) whether the WPA requires that a plaintiff employee specifically intend to make a charge of a violation or suspected violation of law against another; and (3) whether privileged communications between a client and his or her attorney can constitute a report under the WPA.
164213-5
164213
KATELYN ZWIKER, Individually and on Behalf of All Others Similarly Situated, (attorney David Fink)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Ct of Claims - Kelly, M.)
LAKE SUPERIOR STATE UNIVERSITY and LAKE SUPERIOR STATE UNIVERSITY BOARD OF TRUSTEES, (attorney Gary Fealk)
Defendants-Appellees.
164214
KEVIN HORRIGAN, (attorney David Fink)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Ct of Claims - Kelly, M.)
EASTERN MICHIGAN UNIVERSITY and EASTERN MICHIGAN UNIVERSITY BOARD OF TRUSTEES, (attorney Paul Hudson)
Defendants-Appellees.
164215
JAEL DALKE, (attorneyDavid Fink)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Ct of Claims - Kelly, M.)
CENTRAL MICHIGAN UNIVERSITY and CENTRAL MICHIGAN UNIVERSITY BOARD OF TRUSTEES, (attorney Ryan Kauffman)
Defendants-Appellees.
The plaintiffs were students at the defendant universities when the COVID-19 pandemic began. They seek reimbursement for tuition, room and board, and fees. They argue that they did not receive the full benefit of the tuition they paid before the pandemic began as a result of the transition to an online learning environment, which they claim is of lesser value than in-person instruction. They also argue that they did not receive reimbursement for their unused portions of room and board during the time they were in off-campus housing and also did not receive reimbursement for unused portions of fees paid for services that were not provided. They asserted causes of action based on breach of contract and unjust enrichment. The Court of Claims granted the defendants’ motions for summary disposition. The Court of Appeals consolidated the cases and affirmed the Court of Claims in a 2-1 published opinion. The Supreme Court has ordered oral argument on the application to address whether the plaintiffs are entitled to any reimbursement for payments made to the defendants for tuition, room and board, or any associated fees or costs for the winter/spring 2020 semester.
Thursday, October 5, 2023
Afternoon Session – 12:45 p.m.
162601
TECHNICAL PROFESSIONAL AND OFFICEWORKERS ASSOCIATION OF MICHIGAN, (attorney Frank Guido)
Respondent-Appellant,
v
(Appeal from Ct of Appeals)
(MERC)
DANIEL LEE RENNER,
Charging Party-Appellee.
Daniel Renner, a Saginaw County employee, wanted to file a grievance. He was a member of the bargaining unit represented by plaintiff TPOAM but was not a member of the union. He initiated an individual grievance but was told that he had to use the procedure in the collective bargaining agreement (CBA). Under the CBA, a grievance requires the involvement of the union. The union told Renner that he had to pay a fee estimated at $1,290 to secure the union’s assistance. Renner did not pay the union’s fee and the union took no steps to assist him in the grievance process. Renner filed a Public Employment Relations Act (PERA) charge with the Michigan Employment Relations Commission (MERC), alleging that the union violated its duty of fair representation by demanding a fee in exchange for representation. An administrative law judge (ALJ) found that the union’s pay-for-services procedure violated § 10(2)(a) of PERA, MCL 423.210(2)(a), by unlawfully discriminating against nonunion members and restraining them from exercising their § 9 right to refrain from joining or assisting a labor organization. The Court of Appeals affirmed in a published opinion. The Supreme Court ordered oral argument on the application. Following oral argument, the Supreme Court granted leave to appeal and directed the parties to include among the issues to be briefed: (1) what is the difference between the common-law analysis of the duty of fair representation and the statutory analysis of “coercion” and “restraint” under PERA, MCL 423.201 et seq., and whether the outcome in this case will differ based on which analysis is used; (2) whether the fee schedule in this case violates §§ 9 and 10 of PERA (MCL 423.209; MCL 423.210); and (3) whether the fee schedule in this case violates the common-law duty of fair representation.
163939
PEOPLE OF THE STATE OF MICHIGAN, (attorney Daniel Hebel)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Wayne CC - Kenny, T)
MILTON LEE LEMONS, (attorney David Moran)
Defendant-Appellant.
Following a bench trial in 2006, the defendant was convicted of first-degree felony murder in connection with the death of her infant daughter and was sentenced to life in prison. The defendant, who now identifies as female, was the infant’s biological father, and admitted to shaking the infant. The Washtenaw County Medical Examiner performed an autopsy and testified that he found symptoms of shaken baby syndrome (SBS). The Court of Appeals affirmed the defendant’s conviction, and the Supreme Court denied the defendant’s application for leave to appeal. In 2016, the defendant filed a successive motion for relief from judgment, alleging new evidence in the form of recantation testimony by the medical examiner, who now would find the manner of death to be indeterminate, and opinions by medical and biomechanical engineering experts discrediting the SBS diagnosis. The trial court held a series of evidentiary hearings and issued an opinion holding that the medical examiner’s change in opinion did not make a different result probable on retrial, and the other expert testimony was not admissible. The Court of Appeals denied the defendant’s application for leave to appeal, but the Supreme Court remanded the case to the Court of Appeals for consideration as on leave granted. On remand, the Court of Appeals affirmed the trial court’s denial of the defendant’s motion for relief from judgment in an unpublished opinion, holding that: (1) the trial court abused its discretion by excluding all of the expert testimony when some was admissible; (2) the biomechanical engineering evidence and testimony was properly excluded; and (3) the admissible testimony would not have made a different result probable on retrial. The Supreme Court has ordered oral argument on the application to address whether the Court of Appeals erred in holding that: (1) the Wayne Circuit Court did not abuse its discretion by concluding that the biomechanical engineering evidence and testimony was inadmissible, or by excluding alternate causation theories that purportedly lacked scientific or factual support; (2) the Wayne Circuit Court correctly denied the defendant relief despite its erroneous decision to exclude the defense experts’ opinions regarding the validity of SBS diagnoses, reliance on the triad as a diagnostic tool, and the possibility of choking as an alternative cause of death; or (3) the new evidence presented by the defendant was insufficient to create a reasonable probability of a different outcome on retrial and warrant relief under People v Cress, 468 Mich 678, 692 (2003).
preceding questions are answered in the affirmative, at what point does the entitlement to a presumption that a person will leave the tracks give way to the duty to act to avoid a possible collision, if at all. See Lake Shore & MSR Co v Miller, 25 Mich 274, 278-279 (1872), overruled on other grounds, Bricker v Green, 313 Mich 218 (1946).
164190
REBECCA MILNE, Personal Representative of the ESTATE OF RILEY ROBINSON, (attorney Matthew Klakulak)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Missaukee CC - Fagerman, W.)
LARRY ROBINSON, SR., (attorney Daniel Saylor)
Defendant-Appellee, and
ANN ROBINSON,
Defendant.
Defendant Larry Robinson, Sr.’s two minor grandchildren were involved in an off-road vehicle (ORV) accident that occurred on his property. The younger child died as a result of injuries sustained in the accident. The child’s mother, as next friend and personal representative of the child’s estate, commenced a civil action alleging that the defendant was liable for the decedent’s injuries because he was negligent. The trial court granted summary disposition in favor of the defendant, concluding that the Recreational Land Use Act, MCL 324.73301 et seq., applies and precludes relief. The trial court also denied the plaintiff’s motion to amend the complaint to add a claim under the owner’s liability provision of the Motor Vehicle Code, MCL 257.401(1). The Court of Appeals affirmed in a published opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether the owner’s liability provision of the Motor Vehicle Code, MCL 257.401(1), irreconcilably conflicts with the Recreational Land Use Act, MCL 324.73301(1), as to the defendant’s liability for the decedent’s injury; (2) whether the pertinent inquiry in resolving the apparent statutory conflict in this case is to determine which provision is more specific; and (3) if so, what is the appropriate framework for determining which provision is more specific?
163224
PEOPLE OF THE STATE OF MICHIGAN, (attorney Alena Clark)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Genesee CC - Fullerton, J.)
KEVIN LIONEL THOMPSON, JR., (attorney Lindsay Ponce)
Defendant-Appellant.
The defendant was convicted of felony murder, armed robbery, conspiracy to commit armed robbery, and felony-firearm based on the robbery and fatal shooting of a pizza delivery man. The defendant took a pretrial polygraph examination, and the defendant’s trial counsel claims there was an agreement with the prosecution that there would be no post-polygraph interview. Nevertheless, there was a post-polygraph interview at which defendant made incriminating statements. The defendant argues that trial counsel was ineffective in failing to enter into a written agreement with the prosecution regarding the terms of the polygraph examination or by failing to place the terms on the record. The trial court denied the defendant’s motion for a new trial and the Court of Appeals affirmed the defendant’s convictions in a 2-1 unpublished opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether trial counsel’s performance was objectively unreasonable with respect to the defendant’s polygraph examination and/or post-polygraph questioning, including the failure to establish the terms of the polygraph agreement in writing, to enforce the terms of the alleged agreement, and to testify regarding the terms of the agreement; and (2) whether the defendant was prejudiced or if he voluntarily waived his right to counsel with respect to the polygraph examination and/or post-polygraph questioning.
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Wednesday, October 4, 2023
Afternoon Session – 1:15 p.m.
162302
JOELYNN T. STOKES, Personal Representative of the ESTATE OF LINDA HORN, (attorney Ramona Howard)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Oakland - Matthews, C.)
MICHAEL J. SWOFFORD, D.O., and SOUTHFIELD RADIOLOGY ASSOCIATES, PLLC, (attorney Michael Cook)
Defendants-Appellants.
This medical malpractice case was brought by the personal representative of the Estate of Linda Horn (plaintiff) against Michael J. Swofford, D.O., and his practice group. The plaintiff provided an affidavit of merit executed by a physician specializing and board certified in the field of neuroradiology. The defendants filed an answer and an affidavit of meritorious defense executed by Dr. Swofford in which he averred that he was board certified in diagnostic radiology at the time of the events giving rise to the plaintiff’s action. The plaintiff brought a motion to confirm that neuroradiology was the one most relevant specialty or subspecialty under Woodard v Custer, 476 Mich 545 (2006), but the trial court denied the motion. The Court of Appeals reversed in a published opinion, determining that the most relevant specialty was neuroradiology. The Supreme Court ordered oral argument on the application. Following oral argument, the Supreme Court granted leave to appeal and directed the parties to include among the issues to be briefed: (1) whether Woodard v Custer, 476 Mich 545 (2006), was correctly decided and is consistent with the requirements of MCL 600 .2169(1); (2) if not, whether it should nonetheless be retained under principles of stare decisis, Robinson v City of Detroit, 462 Mich 439, 463-468 (2000); (3) if Woodard should be retained, whether a defendant’s practice of only a single medical specialty affects the application of Woodard’s “one most relevant specialty” requirement, 476 Mich at 560; (4) if Woodard was not correctly decided and should not be retained, the test that should be applied under MCL 600.2169(1); and (5) whether the Court of Appeals reached the right result under the proper application of the requirements of MCL 600.2169 in this case. The Supreme Court directed the Clerk to schedule the oral argument in this case for the same future session of the Court when it will hear oral argument in Selliman v Colton, MD (Docket No. 163226).
163226
ANTONIO SELLIMAN, (attorney Rachel Ratton)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Oakland CC - Matis, J.)
JEFFREY J. COLTON, M.D., JEFFREY J. COLTON, PLLC, and COLTON CENTER, (attorney Jeffrey Gerish)
Defendants-Appellees.
In this medical malpractice case, the defendants filed a motion to strike the plaintiff’s sole expert witness and for summary disposition on the basis that the expert’s one relevant specialty was facial plastic and reconstructive surgery, and the plaintiff’s expert testified in his deposition that he devoted 90% of his practice to otolaryngology and 10% to facial plastic and reconstructive surgery. The trial court denied the motions, finding it unclear whether the expert testified as the defendants contended. The Court of Appeals reversed in an unpublished opinion, holding that the trial court abused its discretion, because the expert unequivocally testified that 10% of his practice was facial plastic and reconstructive surgery procedures and 90% was ENT procedures, and the most relevant specialty in this case was facial plastic reconstructive surgery. The Supreme Court ordered oral argument on the application. Following oral argument, the Supreme Court granted leave to appeal and directed the parties to include among the issues to be briefed: (1) whether Woodard v Custer, 476 Mich 545 (2006), was correctly decided and is consistent with the requirements of MCL 600.2169(1); (2) if not, whether it should nonetheless be retained under principles of stare decisis, Robinson v City of Detroit, 462 Mich 439, 463-468 (2000); (3) if the “one most relevant specialty” test as set forth in Woodard is not consistent with MCL 600.2169(1) and should not be retained, the test that should be applied; (4) if Woodard’s interpretation of “majority of . . . professional time” is not consistent with MCL 600.2169(1) and should not be retained, the correct interpretation; and (5) whether the Court of Appeals reached the right result under the proper application of the requirements of MCL 600.2169 in this case. The Supreme Court directed the Clerk to schedule the oral argument in this case for the same future session of the Court when it will hear oral argument in Stokes v Swofford, DO (Docket No. 162302).
—————
Thursday, October 5, 2023
Morning Session – 9:30 a.m.
164133
PEOPLE OF THE STATE OF MICHIGAN, (attorney Molly Schikora)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Allegan CC - Bakker, M.)
DANIEL ALBERT LOEW, (attorney Heath Lynch)
Defendant-Appellant.
The defendant was convicted by a jury of multiple counts of first-degree criminal sexual conduct, second-degree criminal sexual conduct, and third-degree criminal sexual conduct. While his appeal of right was pending, he learned that, during the trial, the trial judge had initiated ex parte email communications with the elected county prosecuting attorney, inquiring about specific aspects of this case. On the defendant’s motion, a different judge granted him a new trial because the ex parte communications created the appearance of impropriety. The Court of Appeals reversed in a 2-1 published opinion, concluding in part that the emails amounted only to acceptable administrative matters. The Supreme Court has granted leave to appeal to address: (1) whether the Court of Appeals correctly concluded that the ex parte communications in this case did not violate Canon 3(A)(4)(a)(i) of the Code of Judicial Conduct because they were merely administrative in nature; (2) whether a trial court may properly grant a new trial in a criminal case based on an appearance of impropriety where Canon 3(A)(4) governs the conduct at issue, see In re Haley, 476 Mich 180, 194-195 (2006); (3) if the ex parte communications here give rise to legal error for either a violation of Canon 3(A)(4)(a) or an appearance of impropriety, whether the standard for ascertaining reversible prejudice requires a showing of actual harm to the defense, or is instead determined by weighing other factors as well, see, e.g., Liljeberg v Health Servs Acquisition Corp, 486 US 847 (1988); and (4) whether the defendant is entitled to a new trial under MCR 2.003 or constitutional guarantees of due process of law.
163805
PEOPLE OF THE STATE OF MICHIGAN, Eaton County Prosecutor’s Office
Plaintiff-Appellee, (attorney
v
(Appeal from Ct of Appeals)
(Eaton CC - Cunningham, J.)
DAMON EARL WARNER, (attorney Steven Helton)
Defendant-Appellant.
The defendant was charged with one count of first-degree criminal sexual conduct (CSC I) and one count of second-degree criminal sexual conduct (CSC II). Following a trial in 2017, a jury found him guilty of CSC II, but could not reach a verdict on the CSC I count. After the defendant was sentenced on the CSC II conviction, the prosecutor dismissed the CSC I charge without prejudice. The defendant appealed his CSC II conviction, and the Court of Appeals reversed that conviction and remanded the case to the trial court for a new trial. On remand, the trial court granted the prosecutor’s motion to amend the information to reinstate the dismissed CSC I charge. Following a retrial, a jury convicted the defendant of CSC I and found him not guilty of CSC II. The trial court sentenced the defendant to 20 to 40 years in prison. On appeal, the defendant argued, among other things, that: (1) the trial court exceeded its authority by granting the prosecutor’s motion to amend the information to include a charge that had been dismissed pursuant to an order of nolle prosequi, and then conducting a trial on that charge; and (2) the trial court denied his right to due process and equal protection when it denied his motion for funds to retain an expert in false confessions. The Court of Appeals affirmed in a published opinion. The Supreme Court has ordered oral argument on the application to address: (1) whether, under MCL 767.29 and MCR 6.112(H), a trial court may amend an information, over objection, to include a charge that was dismissed pursuant to an order of nolle prosequi, without beginning the proceedings anew, “unless the proposed amendment would unfairly surprise or prejudice the defendant,” MCR 6.112(H); (2) if so, whether the Eaton Circuit Court erred by doing so in this case and whether any error was harmless; and (3) whether the trial court abused its discretion by denying the defendant’s motion to appoint an expert in false confessions.
164302
TAMMY McNEILL-MARKS, (attorney Kevin Kelly)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Gratiot CC - Tahvonen, R.)
MIDMICHIGAN MEDICAL CENTER-GRATIOT, (attorney Neil Marchand)
Defendant-Appellee.
The plaintiff was employed as a nurse at MidMichigan Medical Center-Gratiot (defendant).
Unrelated to her employment, the plaintiff had obtained a personal protection order (PPO) against Marcia Fields. The plaintiff encountered Fields when Fields came into the hospital as a patient. The plaintiff contacted her attorney and advised him of Fields’s presence at the hospital. The plaintiff advised her attorney not to serve Fields with an updated PPO at the hospital, but the PPO was nevertheless served on Fields at the hospital. The defendant terminated the plaintiff’s employment for violating the Health Insurance Portability and Accountability Act and the defendant’s confidentiality policies. The plaintiff filed suit against the defendant, alleging that her termination violated the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., and Michigan public policy because the defendant terminated her for either reporting Fields’s violation of the PPO to plaintiff’s attorney or being about to report that violation to the circuit court. The trial court granted summary disposition in the defendant’s favor, concluding that the plaintiff’s attorney was not a “public body” under the WPA. The Court of Appeals reversed in a published opinion. The Supreme Court granted oral argument on the application to consider this question and also directed supplemental briefing on the question whether the plaintiff’s communication to her attorney constituted a “report” under the WPA. The Supreme Court subsequently denied leave to appeal. The case returned to the trial court, where the defendant filed a new motion for summary disposition, this time arguing that the plaintiff’s communication was not a “report.” The trial court granted summary disposition in the defendant’s favor, but the Court of Appeals reversed in an unpublished opinion, opining that the defendant’s argument was precluded by the law-of-the-case doctrine. The Supreme Court peremptorily reversed that decision and remanded the case to the Court of Appeals for consideration of the plaintiff’s remaining appellate issue. On remand, the Court of Appeals, in an unpublished opinion, affirmed the trial court’s grant of summary disposition in the defendant’s favor, opining that the plaintiff’s communication to her attorney was not a “report” under the WPA. The Supreme Court has ordered oral argument on the application to address whether the communication from the plaintiff to her attorney regarding Marcia Fields’s presence at MidMichigan Medical Center-Gratiot amounted to a “report,” as that word is used in Section 2 of the Whistleblowers’ Protection Act (WPA), MCL 15.362. In answering this question, the Supreme Court has directed the parties to address: (1) whether the WPA requires that the plaintiff’s communication be to an individual with the authority to address the alleged violation of law; (2) whether the WPA requires that a plaintiff employee specifically intend to make a charge of a violation or suspected violation of law against another; and (3) whether privileged communications between a client and his or her attorney can constitute a report under the WPA.
164213-5
164213
KATELYN ZWIKER, Individually and on Behalf of All Others Similarly Situated, (attorney David Fink)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Ct of Claims - Kelly, M.)
LAKE SUPERIOR STATE UNIVERSITY and LAKE SUPERIOR STATE UNIVERSITY BOARD OF TRUSTEES, (attorney Gary Fealk)
Defendants-Appellees.
164214
KEVIN HORRIGAN, (attorney David Fink)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Ct of Claims - Kelly, M.)
EASTERN MICHIGAN UNIVERSITY and EASTERN MICHIGAN UNIVERSITY BOARD OF TRUSTEES, (attorney Paul Hudson)
Defendants-Appellees.
164215
JAEL DALKE, (attorneyDavid Fink)
Plaintiff-Appellant,
v
(Appeal from Ct of Appeals)
(Ct of Claims - Kelly, M.)
CENTRAL MICHIGAN UNIVERSITY and CENTRAL MICHIGAN UNIVERSITY BOARD OF TRUSTEES, (attorney Ryan Kauffman)
Defendants-Appellees.
The plaintiffs were students at the defendant universities when the COVID-19 pandemic began. They seek reimbursement for tuition, room and board, and fees. They argue that they did not receive the full benefit of the tuition they paid before the pandemic began as a result of the transition to an online learning environment, which they claim is of lesser value than in-person instruction. They also argue that they did not receive reimbursement for their unused portions of room and board during the time they were in off-campus housing and also did not receive reimbursement for unused portions of fees paid for services that were not provided. They asserted causes of action based on breach of contract and unjust enrichment. The Court of Claims granted the defendants’ motions for summary disposition. The Court of Appeals consolidated the cases and affirmed the Court of Claims in a 2-1 published opinion. The Supreme Court has ordered oral argument on the application to address whether the plaintiffs are entitled to any reimbursement for payments made to the defendants for tuition, room and board, or any associated fees or costs for the winter/spring 2020 semester.
—————
Thursday, October 5, 2023
Afternoon Session – 12:45 p.m.
162601
TECHNICAL PROFESSIONAL AND OFFICEWORKERS ASSOCIATION OF MICHIGAN, (attorney Frank Guido)
Respondent-Appellant,
v
(Appeal from Ct of Appeals)
(MERC)
DANIEL LEE RENNER,
Charging Party-Appellee.
Daniel Renner, a Saginaw County employee, wanted to file a grievance. He was a member of the bargaining unit represented by plaintiff TPOAM but was not a member of the union. He initiated an individual grievance but was told that he had to use the procedure in the collective bargaining agreement (CBA). Under the CBA, a grievance requires the involvement of the union. The union told Renner that he had to pay a fee estimated at $1,290 to secure the union’s assistance. Renner did not pay the union’s fee and the union took no steps to assist him in the grievance process. Renner filed a Public Employment Relations Act (PERA) charge with the Michigan Employment Relations Commission (MERC), alleging that the union violated its duty of fair representation by demanding a fee in exchange for representation. An administrative law judge (ALJ) found that the union’s pay-for-services procedure violated § 10(2)(a) of PERA, MCL 423.210(2)(a), by unlawfully discriminating against nonunion members and restraining them from exercising their § 9 right to refrain from joining or assisting a labor organization. The Court of Appeals affirmed in a published opinion. The Supreme Court ordered oral argument on the application. Following oral argument, the Supreme Court granted leave to appeal and directed the parties to include among the issues to be briefed: (1) what is the difference between the common-law analysis of the duty of fair representation and the statutory analysis of “coercion” and “restraint” under PERA, MCL 423.201 et seq., and whether the outcome in this case will differ based on which analysis is used; (2) whether the fee schedule in this case violates §§ 9 and 10 of PERA (MCL 423.209; MCL 423.210); and (3) whether the fee schedule in this case violates the common-law duty of fair representation.
163939
PEOPLE OF THE STATE OF MICHIGAN, (attorney Daniel Hebel)
Plaintiff-Appellee,
v
(Appeal from Ct of Appeals)
(Wayne CC - Kenny, T)
MILTON LEE LEMONS, (attorney David Moran)
Defendant-Appellant.
Following a bench trial in 2006, the defendant was convicted of first-degree felony murder in connection with the death of her infant daughter and was sentenced to life in prison. The defendant, who now identifies as female, was the infant’s biological father, and admitted to shaking the infant. The Washtenaw County Medical Examiner performed an autopsy and testified that he found symptoms of shaken baby syndrome (SBS). The Court of Appeals affirmed the defendant’s conviction, and the Supreme Court denied the defendant’s application for leave to appeal. In 2016, the defendant filed a successive motion for relief from judgment, alleging new evidence in the form of recantation testimony by the medical examiner, who now would find the manner of death to be indeterminate, and opinions by medical and biomechanical engineering experts discrediting the SBS diagnosis. The trial court held a series of evidentiary hearings and issued an opinion holding that the medical examiner’s change in opinion did not make a different result probable on retrial, and the other expert testimony was not admissible. The Court of Appeals denied the defendant’s application for leave to appeal, but the Supreme Court remanded the case to the Court of Appeals for consideration as on leave granted. On remand, the Court of Appeals affirmed the trial court’s denial of the defendant’s motion for relief from judgment in an unpublished opinion, holding that: (1) the trial court abused its discretion by excluding all of the expert testimony when some was admissible; (2) the biomechanical engineering evidence and testimony was properly excluded; and (3) the admissible testimony would not have made a different result probable on retrial. The Supreme Court has ordered oral argument on the application to address whether the Court of Appeals erred in holding that: (1) the Wayne Circuit Court did not abuse its discretion by concluding that the biomechanical engineering evidence and testimony was inadmissible, or by excluding alternate causation theories that purportedly lacked scientific or factual support; (2) the Wayne Circuit Court correctly denied the defendant relief despite its erroneous decision to exclude the defense experts’ opinions regarding the validity of SBS diagnoses, reliance on the triad as a diagnostic tool, and the possibility of choking as an alternative cause of death; or (3) the new evidence presented by the defendant was insufficient to create a reasonable probability of a different outcome on retrial and warrant relief under People v Cress, 468 Mich 678, 692 (2003).
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