MSC mulls time limits for medmal pleadings

The Michigan Supreme Court is considering limitations periods for certain pleadings in medical malpractice cases.

Under proposed amendments to MCR 2.112 and 2.118, there would be time limits in which to challenge affidavits of merit and meritorious defense, and notices of intent to sue.

The key language from the proposed amendment of MCR 2.112 Pleading Special Matters:

(L) Medical Malpractice Actions.

(2) In a medical malpractice action, unless the court allows a later challenge for good cause:

(a) all challenges to a notice of intent to sue must be made at the time the defendant files its first response to the complaint, whether by answer or motion, and

(b) all challenges to an affidavit of merit or affidavit of meritorious defense, including the qualifications of the signer, must be made within 63 days of service of the affidavit on the opposing party. If the court finds that the affidavit is insufficient, it shall afford the party that filed the challenged affidavit to file a revised affidavit unless the information before the court shows that amendment would
not be justified. See MCR 2.116(I)(5).

MCR 2.118 Amended and Supplemental Pleadings would also be amended. The proposed added language is in italics:

(D) Relation Back of Amendments. An amendment that adds a claim or defense relates back to the date of the original pleading if the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth, or attempted to be set forth, in the original pleading. In a medical malpractice action, an amendment of an affidavit of merit or affidavit of meritorious defense relates back to the date of original filing of the affidavit.

The staff comment accompanying the proposal states:

The proposal also would allow amendment when an affidavit is found to be insufficient unless such amendment would be unjustified, and would explicitly state that the amended affidavit of merit or meritorious defense relates back to the date of the affidavit’s original filing.

Send your comments to Supreme Court Clerk Corbin Davis in writing or electronically by Sept. 1, 2009.
Box 30052, Lansing, MI 48909
email: MSC_clerk@courts.mi.gov

Post a copy here at The Michigan Lawyer while you’re at it.

Is tailpipe emissions event a smokescreen for Granholm SCOTUS vetting?

Governor Jennifer Granholm is in Washington today for a White House announcement on federal tailpipe emissions legislation.

But Granholm may be getting some extra mileage from her D.C. trip.

From Deb Price in this morning’s edition of The Detroit News:

Her trip to Washington today — and her cancellation of a public appearance in Warren on Monday — fueled speculation that she’s being vetted for the seat Justice David Souter will relinquish at the end of the court’s term in June. But White House press secretary Robert Gibbs wasn’t saying whether that was the case.

He ducked answering the question at the briefing Monday, intensifying the media spotlight on the governor and former Michigan attorney general, who reportedly is on a short list of contenders that includes Janet Napolitano, the secretary of Homeland Security; Solicitor General Elena Kagan; and U.S. Appeals Court judges Sonia Sotomayor and Diane Pamela Wood.

Closer to home, Granholm Press Secretary Liz Boyd was equally coy when asked about her boss and possible SCOTUS vetting.

From a report in Michigan Information and Research’s Capitol Capsule:

Granholm spokeswoman Liz BOYD told MIRS that the Governor would be there for an announcement that was “unrelated to the Supreme Court buzz.” When asked if she had been contacted by the Obama administration about the job, Boyd said: “I am not offering a comment on anything related to speculation about a possible appointment with the Obama administration.”

Although Boyd isn’t offering any comment, plenty of other pundits have.

Price gave her reasons in a Sunday Detroit News column about why Granholm’s on President Obama’s short list.

And Detroit News columnist Laura Bergman, also on Sunday, marshaled what she called “powerful arguments” for Granholm to be Obama’s pick.

But last Thursday, blogger Susan Demas, in her Capitol Chronicles, had an interesting take on why the president will select someone other than the governor.

With all the gloomy news about Michigan’s budget, rampant unemployment in the state and automakers teetering through bankruptcy court, speculation about Granholm and a possible U.S. Supreme Court nomination is a fun game to play.

Enjoy it while it lasts.

It’s already beginning …

We’re still 18 months away from the next time we select Michigan Supreme Court justices but a quick visit to the Michigan Democratic Party’s Web site might convince you that Election Day was just around the corner.

Justice Robert Young is drawing early re-election heat

Having dispatched Cliff Taylor in last November’s contest with Justice Diane Hathaway’s election to the high court, the Democrats are already putting the smack on Justice Robert Young, who is up for re-election in 2010.

From the Dem’s home page this morning:

“Justice Robert Young: Enemy of the People”

“Young: Doing Good Not Judges’ Role”

“Law Day 2009: Justice Young Erodes Vital Constitutional Right – Young Undermines Right to Trial By Jury”

“Justice Young Calls Plaintiffs, Justice Weaver Liars”

Wow! At this rate, by October 2010, the Dems may be blaming Young for earthquakes, tornadoes, wildfires, tsunamis and possible asteroid strikes.

Seriously, this sort of partisan ballyhoo is to be expected but what’s noteworthy is the amount of it, and so early in the game, too.

All of this underscores just how important the Dems think it is to secure another reliable seat on the Michigan Supreme Court. The current lineup, by political party, has Chief Justice Marilyn Kelly, and Justices Michael Cavanagh and Diane Hathaway in the Democratic corner, and Justices Young, Maura Corrigan and Stephen Markman in the Republican camp.

Justice Elizabeth Weaver, a Republican, has been critical of the other Republican justices and has sided with the Democrats on some issues. Weaver is also up for re-election in 2010. There’s been talk that the Republicans may not nominate her and that she might run as an independent.

With that in mind, the Democrats are likely thinking that it’s critical to deliver a knock-out punch to Young in 2010 to achieve a solid 4-3 majority on the court.

The Democrats are getting some early help in other quarters.

First, some context: The State Bar of Michigan’s Consumer Law Section recently released a study, which concluded that Michigan Supreme Court decisions have left the Michigan Consumer Protection Act “toothless.”

The study examined MSC opinions dealing with the Michigan Consumer Protection Act and found that, over the years, the court has exempted from the act most of the businesses that generate most of the consumers’ complaints.

It didn’t take long for the Detroit Free Press to paint some faces on the study’s statistical analysis and finger who the Freep’s editorial board thought was the main culprit. From last Friday’s editorial page:

In two landmark cases in 1999 and 2007, the Republican state Supreme Court majority installed by Gov. John Engler effectively gutted the Michigan Consumer Protection Act, ruling that the intent behind the law was to exempt nearly three-quarters of the businesses that generate the most consumer complaints.

Both rulings, authored by Justice Robert Young Jr., contravened 23 years of aggressive enforcement in which the attorney general and consumer advocates relied on the MCPA to hold unscrupulous businesses accountable for deceptive and unfair practices.

It looks like Young is in for a long, hard campaign.

Granholm SCOTUS buzz continues

Governor Jennifer Granholm so far has not entertained any talk about being on short lists of potential nominees for the opening on the U.S. Supreme Court being created by Justice David Souter’s retirement later this year.

Gov. Jennifer Granholm: Let's talk about something else

Granholm last week demurred when pressed by Andrea Mitchell on MSNBC and, locally, Paul W. Smith on WJR, about her possible SCOTUS nomination. In fact, Granholm told Smith that her nomination would never fly because she’s never been a judge.

But that’s an excellent reason why she should be considered, according to University of Maryland School of Law Professor Sherrilyn A. Ifill. In a commentary published yesterday on CNN’s Web site, Ifill argued that the Supreme Court has been overpopulated by former appeals court judges.

It’s been nearly two decades since anyone who has not served as a federal appellate judge — for at least a little while — has been confirmed to sit on the court. What this means is that justices on the court have come to be representative of a very narrow slice of the profession.

Federal appellate judges, former federal prosecutors and high-powered federal appellate practitioners stand a very good chance of getting nominated. State court judges, full-time law professors, former criminal defense attorneys, even civil practice trial lawyers — not so much.

Ifill says that relying on the federal appellate bench as “the sole feeder to the Supreme Court also means that the pool from which nominees are considered is overwhelmingly white and male.”

That’s why Ifill is pleased to hear that

three women with more diverse backgrounds may be on President Obama’s shortlist for the court. Elena Kagan is the former dean of Harvard Law School and Obama’s new solicitor general. Leah Ward Sears is the chief justice of the Georgia Supreme Court. And of course Jennifer Granholm is the governor of Michigan.

As could be expected, we’ve already heard murmurs that Kagan and Granholm should not be considered because they lack judicial experience. This is just wrong-headed and reflective of the wholesale acceptance of an increasingly narrow view of Supreme Court qualifications.

Each of these nominees has been touted as a talented lawyer who could help bring much-needed gender diversity to the court (which after the retirement of Justice Sandra Day O’Connor in 2006 left Justice Ruth Bader Ginsburg as the lone woman justice). But perhaps these candidates should best be recognized for their potential to bring much-needed professional diversity to the court.