Claims for underinsured motorist (UIM) & uninsured motorist (UM) coverage; Appellate jurisdiction; MCR 7.203(A)(1); “Aggrieved party”; Effect of a stipulated dismissal with prejudice order; Stanley v Farmers Ins Exch; Michigan Automobile Insurance Placement Facility (MAIPF)

The court held that it lacked jurisdiction over plaintiff’s appeal related to his UIM and UM coverage claims because he was not an aggrieved party under Stanley in light of the stipulated order of dismissal with prejudice. After the trial court granted defendant-MemberSelect’s motion for partial summary disposition dismissing those claims, the parties entered into a stipulated order dismissing the remaining claims against MemberSelect and defendant-MAIPF. The situation was similar to Stanley in that plaintiff challenged “an earlier summary disposition ruling involving the same party with whom plaintiff subsequently entered into a stipulated dismissal with prejudice” and the stipulated order did not contain “language preserving plaintiff’s right to appellate review of the previous ruling.” He sought to distinguish his case “by asserting that the claims addressed in the prior summary disposition ruling were distinct from those resolved by the stipulated dismissal. But Stanley contains no such limitation.” Rather, the court there “broadly held that when a plaintiff seeks to challenge a prior interlocutory ruling involving the same defendant with whom the plaintiff later enters into a stipulated order of dismissal, the plaintiff must preserve its appellate rights in that stipulated order. Otherwise, the plaintiff is not an ‘aggrieved party’ entitled to appellate review under MCR 7.203(A)(1).” Thus, the dispositive consideration under Stanley was whether “plaintiff stipulated to the final dismissal with the same party that obtained the prior interlocutory ruling—not whether the claims addressed in the prior ruling were identical to those resolved by the stipulated dismissal.” The result was the same here as in Stanley – the court lacked jurisdiction over plaintiff’s appeal.

Medical malpractice; Proximate cause; MCL 600.2912a(2); Expert causation testimony; Benigni v Alsawah; Kalaj v Khan; Level 1 trauma center; Certified anesthesiology assistant (CAA); Standard of care; Cox v Flint Bd of Hosp Managers; Nonlocal expert’s familiarity with local standard; Decker v Rochowiak; Motion to strike expert

The court held that plaintiff failed to establish a genuine issue of material fact as to proximate causation on the level 1 trauma-center theory, and that the trial court did not abuse its discretion by striking plaintiff’s CAA expert. Plaintiff’s decedent, Elizabeth, suffered cardiac complications during elective eye surgery and died about a month later. The trial court denied the Othman defendants’ motion for summary disposition as to plaintiff’s claim that defendant-cardiologist should have recommended the surgery be performed at a level 1 trauma center, but it struck plaintiff’s CAA expert and granted defendant-Hathaway summary disposition. On appeal, the court first held that plaintiff’s causation proof on the level 1 trauma-center theory was insufficient. Although plaintiff’s cardiology expert initially testified that a larger facility would have provided more resources, he later admitted the outcome “might have been better” and that he could not say so to “a reasonable degree of medical certainty.” The court reasoned that malpractice causation requires proof amounting to “‘a reasonable likelihood of probability rather than a possibility,’” and the expert’s testimony did not meet that standard. The court next held that the trial court properly declined to reconsider its ruling striking plaintiff’s CAA expert. Although the expert testified that the CAA standard of care was national, he admitted he had not researched Southfield, defendant-outpatient surgery center, or the available resources at the outpatient facility. Thus, he failed to show “familiarity with the standard of care in an area similar to the community” where Hathaway practiced. Reversed in Docket No. 370206, affirmed in Docket No. 370778, and remanded.

Claims for underinsured motorist (UIM) & uninsured motorist (UM) coverage; Appellate jurisdiction; MCR 7.203(A)(1); “Aggrieved party”; Effect of a stipulated dismissal with prejudice order; Stanley v Farmers Ins Exch; Michigan Automobile Insurance Placement Facility (MAIPF)

The court held that it lacked jurisdiction over plaintiff’s appeal related to his UIM and UM coverage claims because he was not an aggrieved party under Stanley in light of the stipulated order of dismissal with prejudice. After the trial court granted defendant-MemberSelect’s motion for partial summary disposition dismissing those claims, the parties entered into a stipulated order dismissing the remaining claims against MemberSelect and defendant-MAIPF. The situation was similar to Stanley in that plaintiff challenged “an earlier summary disposition ruling involving the same party with whom plaintiff subsequently entered into a stipulated dismissal with prejudice” and the stipulated order did not contain “language preserving plaintiff’s right to appellate review of the previous ruling.” He sought to distinguish his case “by asserting that the claims addressed in the prior summary disposition ruling were distinct from those resolved by the stipulated dismissal. But Stanley contains no such limitation.” Rather, the court there “broadly held that when a plaintiff seeks to challenge a prior interlocutory ruling involving the same defendant with whom the plaintiff later enters into a stipulated order of dismissal, the plaintiff must preserve its appellate rights in that stipulated order. Otherwise, the plaintiff is not an ‘aggrieved party’ entitled to appellate review under MCR 7.203(A)(1).” Thus, the dispositive consideration under Stanley was whether “plaintiff stipulated to the final dismissal with the same party that obtained the prior interlocutory ruling—not whether the claims addressed in the prior ruling were identical to those resolved by the stipulated dismissal.” The result was the same here as in Stanley – the court lacked jurisdiction over plaintiff’s appeal.

Judicial candidate; Nominating petitions; Signature requirement; MCL 168.544f; Secretary of State review; MCL 168.552(6) & (13); Laches; Election-related civil action; MCL 691.1031; Relation back; MCR 2.118(D); Unclean hands; Declaratory judgment; Mandamus; Clear legal duty; Drissman v Michigan Dep’t of State; Davis v Wayne Cnty Election Comm’n; Kennedy v Secretary of State; Evidentiary hearing & limited discovery

The court held that the Court of Claims properly applied laches to plaintiffs’ newly added claims and properly dismissed their remaining declaratory-judgment and mandamus claims under MCR 2.116(C)(8). Plaintiff-Leggs sought certification as a nonincumbent Wayne Probate Court judicial candidate, but the county clerk determined her nominating petitions contained only 3,661 valid signatures, short of the 4,000 required. Defendant-SOS declined to process her appeal because even rehabilitating the 162 challenged signatures she identified would leave her with only 3,823 valid signatures. Plaintiffs then filed an expedited Court of Claims action and later amended the complaint to add new claims after the SOS had already moved for summary disposition. On appeal, the court first held that laches barred the newly added rulemaking and due process claims. It reasoned that, in an election case, “a delay of 17 days in asserting new claims can result in extreme prejudice,” particularly where plaintiffs’ amendment mooted work already performed by the SOS and compressed review before ballot deadlines. The court rejected plaintiffs’ unclean-hands argument because “‘equity does not require complete blamelessness’” and plaintiffs failed to show bad faith by the SOS. The court next held that plaintiffs were not entitled to declaratory relief because they identified no statute requiring the SOS to conduct the specific form of review they demanded. It likewise held that mandamus was unavailable because plaintiffs cited “no statutory authority” imposing a clear legal duty to conduct a full signature review or direct the clerk to certify Leggs. Finally, because the claims failed as a matter of law, the Court of Claims properly denied an evidentiary hearing and limited discovery. Affirmed.

Medical malpractice; Proximate cause; MCL 600.2912a(2); Expert causation testimony; Benigni v Alsawah; Kalaj v Khan; Level 1 trauma center; Certified anesthesiology assistant (CAA); Standard of care; Cox v Flint Bd of Hosp Managers; Nonlocal expert’s familiarity with local standard; Decker v Rochowiak; Motion to strike expert

The court held that plaintiff failed to establish a genuine issue of material fact as to proximate causation on the level 1 trauma-center theory, and that the trial court did not abuse its discretion by striking plaintiff’s CAA expert. Plaintiff’s decedent, Elizabeth, suffered cardiac complications during elective eye surgery and died about a month later. The trial court denied the Othman defendants’ motion for summary disposition as to plaintiff’s claim that defendant-cardiologist should have recommended the surgery be performed at a level 1 trauma center, but it struck plaintiff’s CAA expert and granted defendant-Hathaway summary disposition. On appeal, the court first held that plaintiff’s causation proof on the level 1 trauma-center theory was insufficient. Although plaintiff’s cardiology expert initially testified that a larger facility would have provided more resources, he later admitted the outcome “might have been better” and that he could not say so to “a reasonable degree of medical certainty.” The court reasoned that malpractice causation requires proof amounting to “‘a reasonable likelihood of probability rather than a possibility,’” and the expert’s testimony did not meet that standard. The court next held that the trial court properly declined to reconsider its ruling striking plaintiff’s CAA expert. Although the expert testified that the CAA standard of care was national, he admitted he had not researched Southfield, defendant-outpatient surgery center, or the available resources at the outpatient facility. Thus, he failed to show “familiarity with the standard of care in an area similar to the community” where Hathaway practiced. Reversed in Docket No. 370206, affirmed in Docket No. 370778, and remanded.

Due process; Repeat proceedings before second referee; In re Sanders; In re VanDalen; In re Sanborn; Termination under §§ 19b(3)(b)(i), (g), (j), & (k)(ii); Sexual abuse; Risk of future harm; Emotional harm; In re Hudson; Children’s best interests; MCL 712A.19b(5); Safety & well-being

The court held that respondent-father was not denied due process by having the case retried before a second referee, and that statutory grounds and the children’s best interests supported termination. His rights were terminated after one of the children (LA) disclosed that respondent sexually abused her, showed her sexualized videos, directed her to photograph her private area, and instructed her to touch herself sexually. After the first referee heard testimony but before closing arguments, the case was reassigned, and the second referee ordered a new trial so he could personally observe the witnesses and assess credibility. On appeal, the court first held that the procedure was constitutionally adequate because “the process provided was that established by statute and not unlike that provided in any child protective proceeding.” The court reasoned that repeated testimony by certain witnesses did “not suggest a violation of due process nor even a departure from the procedure employed in a typical child protective proceeding,” and the remedy for a due-process defect ordinarily would have been a new trial, which respondent received. The court next held that statutory grounds were established. It deferred to the trial court’s credibility finding that LA gave “consistent, detailed accounts of sexual abuse,” including digital penetration, and that respondent’s allegations of coaching were unsupported. It also held that the children faced future harm because LA was at risk of further abuse and the other child had trauma symptoms after disclosing that he witnessed respondent abusing LA. Finally, the court held that termination was in the children’s best interests. Although the trial court considered their emotional bond to respondent, it found credible evidence of “grooming, secrecy instructions, [and] bribery with toys” and contrasted that with the children’s “healthy and stable bond” with the foster parent, who was meeting their educational, therapeutic, and stability needs. Affirmed.

Child’s best interests; Relative placement; In re Atchley; Adequacy of the trial court’s findings; In re Gentry

Concluding that the trial court appropriately addressed the child’s relative placement in making its best-interests determination on remand, the court held that it did not clearly err in finding that terminating respondent-father’s parental rights was in the child’s best interests. The court previously vacated a termination order and “remanded for further proceedings because the trial court failed to consider the child’s” relative placement. In this appeal, respondent again challenged the trial court’s best-interests finding. The court disagreed. First, it rejected his claim that the trial court erroneously focused on the petition’s allegations “rather than the impact of the termination on the child.” The trial court expressly stated that its focus was on the child, and it “considered the child’s well-being and safety by observing that the evidence demonstrated that the child did not feel safe with respondent because of the sexual assault and that termination would allow the child to recover from the resulting trauma.” As to his complaint that the trial court failed to make any “particularized findings” about the child’s placement with her mother, it “explicitly found that the child was placed with her mother and that such placement weighed against termination. [It] went on to conclude that despite this relative placement, the child’s interests in permanency, stability, and finality weighed more heavily toward termination. Thus, because the trial court explicitly addressed and appropriately weighed relative placement against termination, its findings were adequate to facilitate appellate review.” The court was “not left with a definite and firm conviction that the [trial] court made a mistake” in its best-interests determination. Affirmed.

Termination under § 19b(3)(c)(i); Effect of a respondent’s drug use; Children’s best interests; Whether individualized best-interest determinations were necessary; In re White

Holding that § (c)(i) supported termination and that the trial court did not clearly err in jointly addressing the best interests of both children, the court affirmed the order terminating respondent-mother’s parental rights. As to § (c)(i), the record supported the trial court’s findings that she “failed to rectify her medical neglect of the children, her substance abuse, and her mental-health issues[.]” The final day of the trial was over 19 months after the initial disposition order. The children (JR-2 and ZR) and a third child were “born THC positive at birth. ZR also tested positive for oxymorphone, noroxymorphone, amphetamines, and” meth. It was reported that when CPS went to inform respondent “of the ex parte removal order, there was concern that [she] was under the influence of substances ‘based on [her] demeanor.’ ZR was found in the home on the floor of a closet with several injuries.” After respondent completed a psychological evaluation, she “was diagnosed with ‘stimulant use disorder, cannabis use disorder, bipolar disorder, and PTSD,’ and the doctor stated that she would not recommend” respondent as a custodial parent. When she was later scheduled for a substance-abuse evaluation, she “incorrectly stated that she had no need for substance-abuse services. Overall, the record” showed that her “drug use was connected to the abuse and neglect of her children and presented an articulable risk of harm to them since their birth.” This, together “with the continuing medical neglect of the children and her mental health issues that she has been unable to consistently address,” supported termination under § (c)(i). Further, individualized best-interest determinations were not required here because the children’s “best interests are aligned.” They both required a level of parenting that respondent “could not provide due to her drug use combined with her mental health issues[.]” They both had been in foster homes for about “two years, and it was in their best interest to terminate” her rights given their need for finality, permanency, and stability.