Deliberate indifference in a pretrial detainee suicide case; Qualified immunity; The “clearly established” right prong;The pre-Brawner v Scott Cnty test; The “strong likelihood” test; Lawler ex rel Lawler v Hardeman Cnty; Municipal liability; Monell v Department of Soc Servs

[This appeal was from the WD-MI.] The court affirmed the grant of qualified immunity to defendants-corrections officers where plaintiff could not establish that they believed there was a “strong likelihood” that the decedent (Bliven) would commit suicide. After responding to his phone call and learning that he had been shooting his gun out the window, the police had Bliven committed to the hospital for inpatient mental-health treatment. He later admitted shooting at a neighbor’s home with an air rifle. State troopers arrested him and recommended that he be charged with reckless discharge of a firearm, aggravated assault, and meth possession. He received an intake interview at defendant-Ontonagon County’s jail, where he stated that he was not considering suicide, that he had never attempted suicide, and that he did not intend to harm himself in jail. The interviewing officer (one of the defendants) stated that he was left with no reason to think that Bliven would harm himself, and a computer program labeled him as a minimum or medium risk based on Bliven’s answers to the screening questions. Bliven was placed in a cell that had been normally used to house women because the regular, stripped-down detox cell was unavailable. Days later he was found hanging from an electric fan cord in his cell. His daughter, plaintiff, sued the officers for deliberate indifference and the County under Monell. The district court granted the officers and the County summary judgment. On appeal, the court considered the officers’ qualified immunity defense. Applying the pre-Brawner deliberate indifference test, it held that plaintiff failed to show “both that an officer knew ‘of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed]’ and that the officer personally drew this ‘inference.’” Plaintiff also had to show that the officer had unreasonably responded to “the known risk.” The court reviewed cases involving suicide that hold that it must be shown “an officer believeed that there was a ‘strong likelihood’ that an inmate would commit suicide.” Looking at each officer in turn, the court held that plaintiff failed to establish the subjective element. It noted that “a ‘should have’ standard does not suffice to hold them liable.” Rather, they “must have actually perceived that risk.” Her claim against the County also failed where she could not show that it was a “moving force behind” any violation.

Deliberate indifference in a pretrial detainee suicide case; Qualified immunity; The “clearly established” right prong;The pre-Brawner v Scott Cnty test; The “strong likelihood” test; Lawler ex rel Lawler v Hardeman Cnty; Municipal liability; Monell v Department of Soc Servs

[This appeal was from the WD-MI.] The court affirmed the grant of qualified immunity to defendants-corrections officers where plaintiff could not establish that they believed there was a “strong likelihood” that the decedent (Bliven) would commit suicide. After responding to his phone call and learning that he had been shooting his gun out the window, the police had Bliven committed to the hospital for inpatient mental-health treatment. He later admitted shooting at a neighbor’s home with an air rifle. State troopers arrested him and recommended that he be charged with reckless discharge of a firearm, aggravated assault, and meth possession. He received an intake interview at defendant-Ontonagon County’s jail, where he stated that he was not considering suicide, that he had never attempted suicide, and that he did not intend to harm himself in jail. The interviewing officer (one of the defendants) stated that he was left with no reason to think that Bliven would harm himself, and a computer program labeled him as a minimum or medium risk based on Bliven’s answers to the screening questions. Bliven was placed in a cell that had been normally used to house women because the regular, stripped-down detox cell was unavailable. Days later he was found hanging from an electric fan cord in his cell. His daughter, plaintiff, sued the officers for deliberate indifference and the County under Monell. The district court granted the officers and the County summary judgment. On appeal, the court considered the officers’ qualified immunity defense. Applying the pre-Brawner deliberate indifference test, it held that plaintiff failed to show “both that an officer knew ‘of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed]’ and that the officer personally drew this ‘inference.’” Plaintiff also had to show that the officer had unreasonably responded to “the known risk.” The court reviewed cases involving suicide that hold that it must be shown “an officer believeed that there was a ‘strong likelihood’ that an inmate would commit suicide.” Looking at each officer in turn, the court held that plaintiff failed to establish the subjective element. It noted that “a ‘should have’ standard does not suffice to hold them liable.” Rather, they “must have actually perceived that risk.” Her claim against the County also failed where she could not show that it was a “moving force behind” any violation.

Prosecutorial error; Vouching; People v Bahoda; Mistrial; Invited error; People v McPherson; Judicial bias; Piercing the veil of judicial impartiality; People v Stevens; Sentencing; Proportionality of a within-guidelines sentence; People v Posey

The court held that defendant was not denied a fair trial by prosecutorial error, the denial of a mistrial, or judicial bias, and that his within-guidelines sentence was proportionate. Defendant, a security guard, shot two people after an argument that began inside a grocery store and continued outside. The jury convicted him of two counts of AWIM and two counts of felony-firearm. On appeal, the court held that the prosecutor did not improperly vouch by cross-examining defendant about discrepancies between his testimony and other witnesses’ testimony because the prosecutor did not suggest special knowledge about witness truthfulness or inject a personal opinion. The court also held that the trial court did not abuse its discretion by denying a mistrial after a police officer testified that the surveillance video did not appear to show self-defense because defense counsel’s own question invited the answer. As to judicial bias, the court held that the trial court’s interruptions during defendant’s testimony were proper efforts to control the proceedings because defendant repeatedly failed to answer questions directly or wait for questions to be completed, and the trial court also struck improper prosecutor remarks. Finally, the court held that defendant failed to overcome the nonbinding presumption that his within-guidelines AWIM sentence was proportionate, given the serious injuries, defendant’s opportunity to walk away, and the close-range second shot to one victim. Affirmed.

Sentencing; Denial of a two-level reduction for “acceptance of responsibility” (USSG § 3E1.1(a)); Inconsistent conduct; United States v Hollis; Substantive reasonableness; 18 USC § 3553(a) factors; Claim the district court gave inordinate weight to the nature & circumstances of the offense

The court rejected defendant-Simpson’s argument that the district court improperly denied him a sentence reduction for “acceptance of responsibility” where his repeated references to the shooting as an “accident” were inconsistent with such acceptance. It also rejected his substantive reasonableness challenge to his sentence. During jury selection, he pled guilty to carjacking resulting in serious bodily injury, as well as using, carrying, and discharging a firearm during and in relation to a crime of violence. The district court sentenced him to 217 months, “consisting of a top-of-the-Guidelines sentence of 97 months for the carjacking plus the mandatory minimum 120 months for the firearm offense[.]” Appealing his sentence, he first argued that he should have been given a two-level reduction for acceptance of responsibility. The district court declined to apply the reduction after considering the victim’s testimony at sentencing, and focusing on Simpson’s continued assertions that the shooting was an accident. The court cited the holding in Hollis, that even though a defendant may “demonstrate[] ‘significant evidence’ of acceptance of responsibility, such as by pleading guilty, the key inquiry becomes whether that evidence is ‘outweighed by conduct inconsistent with such acceptance.’” Simpson argued that he pled guilty “‘prior to the commencement of trial,’” because the jury had not been selected or sworn in. Declining to determine when a trial “begins” for purposes of § 3E1.1(a), the court found that the record sufficiently supported the district court’s findings that Simpson’s claims that the shooting was “accidental” were not credible. The district court pointed to his “repeated minimizations of his role in the offense and his late acceptance of responsibility” as conduct not compatible with acceptance of responsibility. The court held that the district court did not clearly err in its finding under § 3E1.1(a). It also rejected his substantive reasonableness challenge, noting his sentence fell within the Guidelines range and that the district court engaged in a comprehensive, extended discussion of the § 3553(a) factors. The “district court considered the nature and circumstances of Simpson’s offense in multiple capacities, but nothing in the Sentencing Transcript shows that [it] gave that consideration an ‘unreasonable amount of weight.’” Affirmed.

No-fault personal protection insurance (PIP) benefits; Healthcare providers’ claims for reimbursement for medical services provided to an insured; Reimbursement cap in MCL 500.3157(2)(b); Favot v Brown; Definition of “Medicare” in MCL 500.3157(15)(f)

In this action by plaintiffs-healthcare providers for PIP benefits for services provided to defendant’s insured, the court concluded it was clear the trial court’s ruling denying defendant’s summary disposition motion “was based on an incorrect interpretation of MCL 500.3157, as it did not apply the full Medicare payment methodology now required by Favot.” Defendant argued the trial court erred in “denying its motion for summary disposition under MCR 2.116(C)(7) and (C)(10).” It contended that amendments clearly indicated “the Legislature intended for Medicare payment methodologies to be incorporated into” the No-Fault Act. Defendant asserted “the Medicare rate limitations and adjustments related to the Medicare fee schedule rates apply to claims for no-fault PIP benefits.” It additionally contended “that it paid plaintiffs what they were owed—that is, 195% of what Medicare would pay for the applicable services. In light of” its recent ruling in Favot, the court agreed in part. Under Favot, “insurers must apply all Medicare payment methodologies that are related to the rates in the fee schedule. Only those limitations that are expressly ‘unrelated to the rates in the fee schedule’ are excluded from consideration.” The court concluded that questions remained here as to the specific amounts owed. “On remand, the correct reimbursement cap under MCL 500.3157(2) must be calculated by applying the full Medicare payment methodology, including all rate-related adjustments, reductions, and bundling rules, except for those limitations expressly excluded, consistent with Favot.” Affirmed in part, reversed in part, and remanded.

No-fault personal protection insurance (PIP) benefits; Healthcare providers’ claims for reimbursement for medical services provided to an insured; Reimbursement cap in MCL 500.3157(2)(b); Favot v Brown; Definition of “Medicare” in MCL 500.3157(15)(f)

In this action by plaintiffs-healthcare providers for PIP benefits for services provided to defendant’s insured, the court concluded it was clear the trial court’s ruling denying defendant’s summary disposition motion “was based on an incorrect interpretation of MCL 500.3157, as it did not apply the full Medicare payment methodology now required by Favot.” Defendant argued the trial court erred in “denying its motion for summary disposition under MCR 2.116(C)(7) and (C)(10).” It contended that amendments clearly indicated “the Legislature intended for Medicare payment methodologies to be incorporated into” the No-Fault Act. Defendant asserted “the Medicare rate limitations and adjustments related to the Medicare fee schedule rates apply to claims for no-fault PIP benefits.” It additionally contended “that it paid plaintiffs what they were owed—that is, 195% of what Medicare would pay for the applicable services. In light of” its recent ruling in Favot, the court agreed in part. Under Favot, “insurers must apply all Medicare payment methodologies that are related to the rates in the fee schedule. Only those limitations that are expressly ‘unrelated to the rates in the fee schedule’ are excluded from consideration.” The court concluded that questions remained here as to the specific amounts owed. “On remand, the correct reimbursement cap under MCL 500.3157(2) must be calculated by applying the full Medicare payment methodology, including all rate-related adjustments, reductions, and bundling rules, except for those limitations expressly excluded, consistent with Favot.” Affirmed in part, reversed in part, and remanded.

Class actions; Predominance; FedRCivP 23(b)(3); Wal-Mart Stores, Inc v Dukes; Commonality; Actual cash value (ACV); Speerly v General Motors, LLC; Contract damages; Vehicle-specific valuation; Tarrify Props, LLC v Cuyahoga Cnty; The Rules Enabling Act

On petition for rehearing en banc, the court held that the district court abused its discretion by certifying a class challenging defendant-State Farm’s typical-negotiation adjustment because individualized valuation issues would predominate over common questions under Rule 23(b)(3). Plaintiff-Clippinger alleged that State Farm breached its Tennessee auto insurance policies by using a typical-negotiation adjustment that reduced comparable vehicles’ advertised prices when calculating ACV for total-loss vehicles. The district court certified a class, accepting plaintiff’s theory that damages could be calculated by refunding the amount of the adjustment. On en banc review, the court held that even assuming common questions existed, including whether the adjustment accurately reflected the used-car market, those questions would not predominate because State Farm promised to pay ACV, not to use any particular valuation formula. The court explained that the contract breach and damages elements would require comparing what State Farm paid each class member with the fair market value of that member’s vehicle, and “‘[d]etermining fair market value requires an independent and individualized assessment’” of each vehicle. The court noted that five other circuit courts have rejected “class certification in other actual-cash-value cases on these predominance grounds.” It further held that limiting State Farm to the Autosource Reports generated by a database would violate the Rules Enabling Act because it would eliminate State Farm’s “substantive right” to present vehicle-specific evidence that it paid fair market value despite using the adjustment. Because the class claims would “require ‘mini trials as to each’ class member[,]” individual questions predominated. Reversed and remanded.

Preemption under the National Labor Relations Act (NLRA); San Diego Bldg Trades Council v Garmon; Henry v Laborers’ Local 1191; The local-interest exception; Preemption applicability to unfair competition & fraud claims; Intentional torts; Motion to compel answers to deposition questions; Fifth Amendment privilege; Hoffman v United States; In re Morganroth (6th Cir); Selective waiver; Mitchell v United States; Spousal privilege; MCL 600.2162(1); Production of a nonparty spouse’s notes; Scope of discovery; MCR 2.302(B)(1); People v Fisher; Fifth Amendment act-of-production doctrine; United States v Hubbell

Holding that Garmon preemption did not apply, the court concluded the trial court had subject-matter jurisdiction over this case concerning plaintiff-GM’s intentional tort claims arising from an alleged conspiracy to bribe union officials and weaken GM. Further, the trial court did not abuse its discretion in ruling that defendant-Iacobelli did not “properly invoke his Fifth Amendment right against self-incrimination, and could not invoke the statutory spousal privilege as a way in which to avoid answering” deposition questions. Finally, his wife (nonparty-appellant Susanne) could not invoke the privilege to refuse to produce handwritten notes about conversations with him. These consolidated appeals arose from unlawful payments made to union officials by employees of defendant-FCA. “Iacobelli was a lead union-bargaining representative for FCA from 2008 to mid-2015” and later worked for GM. In this case, GM alleged fraud and fiduciary duty breach claims as well as unfair competition and civil conspiracy claims. The court first addressed whether the trial court was deprived of subject-matter jurisdiction by NLRA preemption. It held that the unfair competition claim did not arguably fall under either relevant NLRA section. While the fraud claim was “a closer call,” the court held that it was not preempted under Garmon because the focus of the claim was “on misrepresentations made to harm a competitor, and not the collective-bargaining process itself[.]” The court added that even “if the second-amended complaint arguably alleged unfair labor practices falling within the scope of the NLRA, we would conclude that the local-interest exception applied[.]” It also held that the trial court did not abuse its discretion in granting a motion to compel Iacobelli’s answers to hundreds of deposition questions as the Fifth Amendment did not permit him to avoid answering them. He “did not have a reasonable apprehension of a real danger of incrimination.” As to his spousal privilege argument related to 20 deposition questions, the court determined that the “privilege did not apply because Susanne was not a party to this case and the testimony would not be ‘against’ her.” And as to the production of her notes, the trial court did not abuse its discretion by finding that they “were not protected by spousal privilege and by compelling their disclosure.” Affirmed.

Appellate jurisdiction; Final order; MCR 7.202(6)(a)(i); Walsh v Taylor; Nunc pro tunc order; Function & limits; Sleboede v Sleboede; Injunctions; Modification or dissolution; Opal Lake Ass’n v Michaywe’ Ltd P’ship

The court held that it lacked jurisdiction over defendants’ appeal as of right because the 3/24 nunc pro tunc order was not a final order. Plaintiff-homeowners’ association sued after defendants interfered with members’ use of common grounds. The trial court granted plaintiff’s summary-disposition motion and request for injunctive relief in 4/22. Nearly two years later, after plaintiff sought contempt proceedings, defendants argued the 4/22 order did not expressly include the injunction’s terms, so the trial court entered a nunc pro tunc order memorializing the terms it had previously stated on the record. On appeal, the court held that the 3/24 order was not “the first judgment or order that disposes of all the claims and adjudicates the rights and liabilities of all the parties” because the 4/22 order had already resolved all claims and counterclaims. The court explained that the “function” of a nunc pro tunc order is only to cure a prior order that omitted action already taken by the court, not to change the prior order or supply action never taken. Because the 3/24 order merely supplied terms previously stated on the record, it did not create appellate jurisdiction as of right. The court added that defendants could still seek modification or dissolution of the injunction in the trial court if circumstances or legal defects warranted it. Dismissed.

Class actions; Predominance; FedRCivP 23(b)(3); Wal-Mart Stores, Inc v Dukes; Commonality; Actual cash value (ACV); Speerly v General Motors, LLC; Contract damages; Vehicle-specific valuation; Tarrify Props, LLC v Cuyahoga Cnty; The Rules Enabling Act

On petition for rehearing en banc, the court held that the district court abused its discretion by certifying a class challenging defendant-State Farm’s typical-negotiation adjustment because individualized valuation issues would predominate over common questions under Rule 23(b)(3). Plaintiff-Clippinger alleged that State Farm breached its Tennessee auto insurance policies by using a typical-negotiation adjustment that reduced comparable vehicles’ advertised prices when calculating ACV for total-loss vehicles. The district court certified a class, accepting plaintiff’s theory that damages could be calculated by refunding the amount of the adjustment. On en banc review, the court held that even assuming common questions existed, including whether the adjustment accurately reflected the used-car market, those questions would not predominate because State Farm promised to pay ACV, not to use any particular valuation formula. The court explained that the contract breach and damages elements would require comparing what State Farm paid each class member with the fair market value of that member’s vehicle, and “‘[d]etermining fair market value requires an independent and individualized assessment’” of each vehicle. The court noted that five other circuit courts have rejected “class certification in other actual-cash-value cases on these predominance grounds.” It further held that limiting State Farm to the Autosource Reports generated by a database would violate the Rules Enabling Act because it would eliminate State Farm’s “substantive right” to present vehicle-specific evidence that it paid fair market value despite using the adjustment. Because the class claims would “require ‘mini trials as to each’ class member[,]” individual questions predominated. Reversed and remanded.

Subject-matter jurisdiction; Standing; Suspension of student loan repayments & interest freeze during the COVID-19 pandemic; Creation of a 12-month “on-ramp to repayment”; An “injury in fact”; Theory of “direct economic injury”; Theory of “competitor standing”; Public Service Loan Forgiveness (PSLF)

[This appeal was from the ED-MI.] The court held that plaintiff-Mackinac Center for Public Policy lacked standing to challenge defendant-Department of Education’s authority to implement its repayment-and interest suspensions and on-ramp to repayment programs for student borrowers. Plaintiff failed to clearly allege that it had suffered an “injury in fact.” During the COVID-19 pandemic the Department “suspended student-loan payments and froze interest for all borrowers.” It also later instituted a 12-month “on-ramp to repayment running from” 10/1/23 to 9/30/24. The dispositive issue here was whether the complaint clearly alleged facts showing that plaintiff suffered an injury in fact arising from the Department’s actions. “An injury in fact ‘must affect the plaintiff in a personal and individual way and not be a generalized grievance.’” Plaintiff is a nonprofit, tax-exempt organization that qualifies as a public service employer under the PSLF program created by Congress in 2007. It argued that it suffered the required injury under the theory of direct economic injury because the Department “‘economically harmed PSLF employers by lowering their statutorily prescribed wage subsidy’” and making borrowers less likely to take advantage of forgiveness under the PSLF. But the court found that the complaint fell “short of pleading an economic injury because it offers legal conclusions disguised as facts.” Plaintiff did not allege that any of its employees stopped making payments during the suspensions or partial or late payments during the on-ramp. It also failed to show that the Department’s “actions affected its ability to recruit employees or fill vacancies. In other words,” it did not “point to any money it lost” due to the Department’s actions. Thus, it “failed to establish the ‘much more’ that is needed to show a direct injury resulting from the Department of Education’s actions regulating student-loan borrowers, not public service employers.” Next, under “the competitor-standing doctrine, economic actors suffer an injury in fact ‘when agencies lift regulatory restrictions on their competitors or otherwise allow increased competition against them.’” The court concluded plaintiff did not clearly allege “facts showing that the suspensions or on-ramp directly increased competition.” Its allegations as to “supply and demand and the impact of financial incentives on student loan borrowers—nonparties to this action—are speculative.”

Preemption under the National Labor Relations Act (NLRA); San Diego Bldg Trades Council v Garmon; Henry v Laborers’ Local 1191; The local-interest exception; Preemption applicability to unfair competition & fraud claims; Intentional torts; Motion to compel answers to deposition questions; Fifth Amendment privilege; Hoffman v United States; In re Morganroth (6th Cir); Selective waiver; Mitchell v United States; Spousal privilege; MCL 600.2162(1); Production of a nonparty spouse’s notes; Scope of discovery; MCR 2.302(B)(1); People v Fisher; Fifth Amendment act-of-production doctrine; United States v Hubbell

Holding that Garmon preemption did not apply, the court concluded the trial court had subject-matter jurisdiction over this case concerning plaintiff-GM’s intentional tort claims arising from an alleged conspiracy to bribe union officials and weaken GM. Further, the trial court did not abuse its discretion in ruling that defendant-Iacobelli did not “properly invoke his Fifth Amendment right against self-incrimination, and could not invoke the statutory spousal privilege as a way in which to avoid answering” deposition questions. Finally, his wife (nonparty-appellant Susanne) could not invoke the privilege to refuse to produce handwritten notes about conversations with him. These consolidated appeals arose from unlawful payments made to union officials by employees of defendant-FCA. “Iacobelli was a lead union-bargaining representative for FCA from 2008 to mid-2015” and later worked for GM. In this case, GM alleged fraud and fiduciary duty breach claims as well as unfair competition and civil conspiracy claims. The court first addressed whether the trial court was deprived of subject-matter jurisdiction by NLRA preemption. It held that the unfair competition claim did not arguably fall under either relevant NLRA section. While the fraud claim was “a closer call,” the court held that it was not preempted under Garmon because the focus of the claim was “on misrepresentations made to harm a competitor, and not the collective-bargaining process itself[.]” The court added that even “if the second-amended complaint arguably alleged unfair labor practices falling within the scope of the NLRA, we would conclude that the local-interest exception applied[.]” It also held that the trial court did not abuse its discretion in granting a motion to compel Iacobelli’s answers to hundreds of deposition questions as the Fifth Amendment did not permit him to avoid answering them. He “did not have a reasonable apprehension of a real danger of incrimination.” As to his spousal privilege argument related to 20 deposition questions, the court determined that the “privilege did not apply because Susanne was not a party to this case and the testimony would not be ‘against’ her.” And as to the production of her notes, the trial court did not abuse its discretion by finding that they “were not protected by spousal privilege and by compelling their disclosure.” Affirmed.

Negligence claim arising from a gas explosion & fire; Girvan v Fuelgas Co; Duty; Replacement of a service line & testing; Breach; Moning v Alfono; Chapter 24, § G2417.1 (406) of the 2009 Michigan Residential Code; MI Admin Code R 460.2351 (Rule 51); “Proximate cause”; Ray v Swager

Holding that multiple questions of fact existed, the court concluded the trial court erred in granting defendant-Consumers Energy summary disposition of plaintiff’s negligence claim arising from a home gas explosion and fire. Plaintiff lived at the home with his mother. “The house had two pipelines: (1) an underground natural-gas pipeline” (referred to as the service line) and (2) a fuel line. Plaintiff asserted an ordinary negligence claim “against Consumers Energy for its conduct while replacing a service line about one month before the explosion occurred.” At least one expert alleged the “installation fell below a standard of care, resulting in the harmful effects on the portion of the pipe within plaintiff’s home and control. That same expert further alleges the errors in installation by Consumers were discoverable through better testing.” The court concluded that “Consumers Energy undertook a duty to inspect the fuel line and, viewing the evidence in a light most favorable to plaintiff, whether it did so with adequate care is a question of fact.” As to breach, it held that plaintiff established “a question of material fact as to whether Consumers Energy’s conduct fell below the standard of care.” The court found that “whether various provisions of the Michigan Residential Code and Michigan Administrative Code are applicable, there remains a question of fact regarding the specific standard of care and whether Consumers Energy adequately installed the line and adhered to statutory requirements for inspection.” An expert “stated the shadow test and soap test were inadequate to test the gas line and the fuel line[.]” The court noted that it was “not in a position to speculate whether certain tests would simply constitute additional precautions.” As to proximate cause, there was “evidence to suggest the company’s performance when replacing the service line created a leak, which led to an explosion, or was a cause in fact of plaintiff’s injuries. In other words, a jury could conclude it was more likely than not, but for the company’s conduct, plaintiff’s injuries would not have occurred.” Reversed and remanded.