MARY MULLINS V ST JOSEPH MERCY HOSPITAL
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STATE OF MICHIGAN
COURT OF APPEALS
MARY MULLINS, Personal Representative of the
Estate of NINA F. MULLINS, Deceased,
FOR PUBLICATION
January 31, 2006
9:10 a.m.
Plaintiff-Appellee,
v
ST. JOSEPH MERCY HOSPITAL, d/b/a ST.
JOSEPH MERCY HEALTH SYSTEM, JASON
WHITE, M.D., RAFAEL J. GROSSMAN, M.D.,
and KIMBERLY STEWART, M.D.,
No. 263210
Washtenaw Circuit Court
LC No. 03-000812-NH
Defendants-Appellants,
and
Official Reported Version
JAMES R. BENGSTON and WALTER
WHITEHOUSE, M.D.,
Defendants.
Before: Fitzgerald, P.J., and O'Connell and Kelly, JJ.
KELLY, J. (concurring in part and dissenting in part).
I respectfully disagree with the majority's conclusion that Ousley v McLaren, 264 Mich
App 486; 691 NW2d 817 (2004), was wrongly decided. I would reverse the trial court's denial
of defendant St. Joseph Mercy Hospital's motion for summary disposition on the basis of Ousley,
not because I am bound by court rule to follow it, but because it was correctly decided. For the
reasons stated McLean v McElhaney, 269 Mich App 196, ___; ___ NW2d ___ (2005), I do not
believe a conflict panel should be convened. I concur in all other respects.
The panel that decided Ousley correctly determined that Waltz v Wyse, 469 Mich 642;
677 NW2d 813 (2004), applied retroactively. The general rule provides for full retroactive
application of judicial decisions. Pohutski v City of Allen Park, 465 Mich 675, 695; 641 NW2d
219 (2002). However, "[i]f a judicial decision is 'unexpected' and 'indefensible' in light of the
law existing at the time of the underlying facts, retroactive application of that decision is
problematic." Lincoln v Gen Motors Corp, 231 Mich App 262, 311; 586 NW2d 241 (1998)
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(WHITBECK, P.J., concurring) (citation omitted). "[C]omplete prospective application has
generally been limited to decisions that overrule clear and uncontradicted case law." Id. On this
point, our Supreme Court has quoted the United States Supreme Court:
"In our cases dealing with the nonretroactivity question, we have generally
considered three separate factors.
First, the decision to be applied
nonretroactively must establish a new principle of law, either by overruling clear
past precedent on which litigants may have relied . . . or by deciding an issue of
first impression whose resolution was not clearly fore-shadowed . . . . Second, it
has been stressed that 'we must . . . weigh the merits and demerits in each case by
looking to the prior history of the rule in question, its purpose and effect, and
whether retrospective operation will further or retard its operation.' . . . Finally,
we have weighed the inequity imposed by retroactive application, for '[w]here a
decision of this Court could produce substantial inequitable results if applied
retroactively, there is ample basis in our cases for avoiding the "injustice or
hardship" by a holding of nonretroactivity.'" [Michigan Ed Employees Mut Ins
Co v Morris, 460 Mich 180, 189-190; 596 NW2d 142 (1999), quoting Chevron
Oil Co v Huson, 404 US 97, 106-107; 92 S Ct 349; 30 L Ed 2d 296 (1971).]
However, our Supreme Court has cautioned:
"Before any question of the retroactive application of an appellate decision
arises, it must be clear that the decision announces a new principle of law. A rule
of law is new for purposes of resolving the question of it retroactive application . .
. either when an established precedent is overruled or when an issue of first
impression is decided which was not adumbrated by any earlier appellate
decision." [Michigan Ed Employees, supra at 191, quoting People v Phillips, 416
Mich 63, 68; 330 NW2d 366 (1982) (emphasis added).]
It thus bears repeating that "[c]omplete prospective application has generally been limited to
decisions which overrule clear and uncontradicted case law." Hyde v Univ of Michigan Bd of
Regents, 426 Mich 223, 240; 393 NW2d 847 (1986) (emphasis added).
Waltz did not overrule clear and uncontradicted case law. Rather, as Ousley correctly
held, Waltz "clarified that other case law clearly established that ยง 5852 was '"a saving statute,
not a statute of limitations . . . ."'" Ousley, supra at 494, quoting Waltz, supra at 650, quoting
Miller v Mercy Mem Hosp, 466 Mich 196, 202; 644 NW2d 730 (2002). Therefore, Waltz applies
retroactively.
/s/ Kirsten Frank Kelly
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