Opinion
ADM File Nos. 2006-43, 2007-07.
December 9, 2008.
Special Orders
Orders Entered December 9, 2008.
On order of the Court, this is to advise that the Court is considering amendment of Rule 2.112 of the Michigan Court Rules. Before the Court determines whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposal or to suggest alternatives. The Court welcomes the views of all. This matter will be considered at a public hearing by the Court before a final decision is made. The schedule and agendas for public hearings are posted on the Court's website at www.courts.mi.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.
[The present language would be amended as indicated below:]
RULE 2.112. PLEADING SPECIAL MATTERS.
(A)-(K)[Unchanged.]
(L) Medical Malpractice Actions. In an action alleging medical malpractice filed on or after October 1, 1993, each party must file an affidavit as provided in MCL 600.2912dT and 600.2912e.
(1) Sufficiency of Affidavit. An affidavit of merit filed under MCL 600.2912d is presumed to be valid and tolls the period of limitations. However, if the court determines upon a party's challenge to the sufficiency of the affidavit that the affidavit is deficient, the court shall dismiss the action without prejudice. Following dismissal, the plaintiff may file a complaint accompanied by a conforming affidavit of merit within the time that remains in the period of limitations. (2) Notice. Notice of filing an the affidavit under MCL 600.2912d or 600.2912e must be promptly served on the opposing party. If the opposing party has appeared in the action, the notice may be served in the manner provided by MCR 2.107. If the opposing party has not appeared, the notice must be served in the manner provided by MCR 2.105. Proof of service of the notice must be promptly filed with the court.
Staff Comment: This proposed amendment would clarify the rules regarding affidavits of merit as expressed in Kirkaldy v Rim, 478 Mich 581 (2007). It would establish a presumption of validity for an affidavit of merit upon filing and would require that a party challenge the sufficiency of an affidavit of merit before it can be determined to be deficient. If a court finds the affidavit deficient, the action would be dismissed. The party would then have the period of time remaining in the statutory limitations period in which to file a complaint with a conforming affidavit of merit.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the secretary of the State Bar of Michigan and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on these proposals may be sent to the Supreme Court Clerk in writing or electronically by April 1, 2009, at P.O. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. All comments received within the public comment period will be posted on the Court's website at www.courts.mi.gov/supremecourt/resources/administrative/index.htm. When filing a comment, please refer to ADM File No. 2007-07 and ADM File No. 2006-43.
PROPOSED AMENDMENT OF RULE 611 OF THE MICHIGAN RULES OF EVIDENCE. On order of the Court, this is to advise that the Court is considering amendment of Rule 611 of the Michigan Rules of Evidence. Before the Court determines whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposal or to suggest alternatives. The Court welcomes the views of all. This matter will be considered at a public hearing by the Court before a final decision is made. The schedule and agendas for public hearings are posted on the Court's website at www.courts.mi.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.
[The present language would be amended as indicated below:]
RULE 611. MODE AND ORDER OF INTERROGATION AND PRESENTATION.
(a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
(b) Appearance of Parties and Witnesses. The court shall exercise reasonable control over the appearance of parties and witnesses so as to
(1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and
(2) to ensure the accurate identification of such persons.
(b)(c)[Renumbered (c)-(d), but otherwise unchanged]
Staff Comment: This proposed amendment would clarify that a judge is entitled to establish reasonable standards regarding the appearance of parties and witnesses to evaluate the demeanor of those individuals and to ensure accurate identification.
The proposal was suggested in response to a case in which a district judge was sued for dismissing a plaintiff's case following the plaintiff's refusal to remove her hijab during testimony. The plaintiff subsequently sued the district judge in federal court, alleging a violation under 42 USC 1983 ( Muhammad v Paruk, 553 F Supp 2d 893 [ED Mich, 2008]). The federal court declined to exercise jurisdiction and dismissed the case, which has since been appealed. In declining to exercise jurisdiction, the federal court noted that state court review "would have avoided many of the federalism concerns" cited by the court, which prompted consideration of this proposal by the Michigan Supreme Court.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the secretary of the State Bar of Michigan and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on these proposals may be sent to the Supreme Court Clerk in writing or electronically by April 1, 2009, at P.O. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. All comments received within the public comment period will be posted on the Court's website at www.courts.mi.gov/supremecourt/resources/administrative/index.htm. When filing a comment, please refer to ADM File No. 2007-13.