Opinion
362310
01-13-2023
Michael Seiler v. Edouard Daher MD
LC No. 21-012298-NO
Thomas C. Cameron, Anica Letica Judges.
ORDER
Kirsten Frank Kelly Presiding Judge.
Pursuant to MCR 7.205(E)(2), in lieu of granting the application, the trial court's July 11, 2022 order is REVERSED, and the matter REMANDED for entry of an order granting plaintiffs' motion to strike the notice of nonparty fault. There is no dispute that the notice was not filed within 91 days after defendants filed their first responsive pleading. Thus, defendants could file the notice of nonparty fault only on "a showing that the facts on which the notice is based were not and could not with reasonable diligence have been known to the moving party earlier, provided that the late filing of the notice does not result in unfair prejudice to the opposing party." MCR 2.112(K)(3)(c). In this case, defendants' own pleadings show that when they answered the complaint, filed initial disclosures, and responded to discovery, defendants knew that the potential nonparties at fault existed and that defendants would defend the case by blaming one or more of these nonparties for causing plaintiffs' injuries. Defendants claim that the notice could not have been filed earlier because they did not know the exact identity of each individual until defendant Dr. Edouard Daher was deposed. However, defendants have not explained why they could not, by using reasonable diligence (such as examining medical records) discovered the names of these medical professionals sooner. Nor did defendants need to know the names of these individuals to file a notice of nonparty fault. See Rinke v Potrzebowski, 254 Mich.App. 411, 416-417; 657 N.W.2d 169 (2002). Defendants failed to demonstrate that they were entitled to file the late notice of nonparty fault pursuant to MCR 2.112(K)(3)(c).
This order is to have immediate effect. MCR 7.215(F)(2). We do not retain jurisdiction.