CHANDRA JOHNSON V PETER ABRAMS JR
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
CHANDRA JOHNSON, and ELISHA JACKSON,
JR, as Personal Representative of the Estate of
Richard Anthony Jackson, Deceased,
UNPUBLISHED
February 24, 2011
Plaintiffs-Appellees/CrossAppellants,
v
No. 287906
Wayne Circuit Court
LC No. 07-701656-NI
PETER ABRAMS, JR, and EMCEA
TRANSPORT,
Defendants-Appellants/CrossAppellees,
and
TITAN INSURANCE COMPANY,
Defendant,
and
DETROIT MEDICAL CENTER,
Defendant-Appellee.
Before: STEPHENS, P.J., and SAWYER and M. J. KELLY, JJ.
PER CURIAM.
Defendants Peter Abrams, Jr. and EMCEA Transport (“EMCEA”) appeal by way of
leave granted the trial court’s order striking defendants’ notice of nonparty at fault, striking one
of defendants’ affirmative defenses and limiting discovery. Additionally, Plaintiffs Chandra
Johnson and Elisha Johnson, as Personal Representatives of the estate of Richard Jackson, crossappeal the trial court’s rulings regarding motions to strike defendants’ notice of nonparty at fault.
The parties have raised a myriad of issues, including the interplay between the medical
malpractice statutes and the notice of nonparty at fault court rules; the interpretation of MCL
MCL 600.2912b as it relates to subsequent medical providers and the sufficiency of the notice
filed in this case and the court’s exercise of authority in awarding a discovery sanction. We find
that the dispositive issue is whether MCL 600.2957 and MCL 600.6304 apply to this case and
-1-
therefore do not address the other issues. We affirm the trial court’s striking of the notice of
nonparty at fault, albeit for reasons other than those stated by the court and reverse the court’s
limitation on discovery.
On June 26, 2006, Mr. Jackson was driving his car on Newburgh Road near its
intersection with Schoolcraft Road in Livonia. At the same time, Abrams was operating a
vehicle that was owned by EMCEA and was doing so with EMCEA’s consent. The vehicle that
Abrams was operating collided with Mr. Jackson’s car. Mr. Jackson survived the accident,
though he allegedly suffered numerous injuries, including injuries to several discs in his back.
On January 18, 2007, Mr. Jackson filed his complaint. The complaint contained three
counts. The first two counts alleged negligence on the part of Abrams and EMCEA. The third
count asserted a first party claim against Titan Insurance Company (“Titan”). On March 19,
2007, defendants petitioned to remove this matter to federal district court. The cause of action
was subsequently removed to the United States District Court for the Eastern District of
Michigan. However, on August 29, 2007, upon Mr. Jackson’s motion, the matter was remanded
to Wayne Circuit Court.
As a result of injuries allegedly suffered in the car accident, Mr. Jackson required
surgery, which was performed by staff of the Detroit Medical Center (“DMC”). Following the
surgery, it is alleged that there were complications with the extubation and Mr. Jackson did not
recover the ability to breath. He therefore entered cardiac arrest and died. Subsequently,
Chandra Johnson and Elisha Jackson, Jr., were appointed as personal representatives of the
estate.
Defendants filed their notice of nonparties at fault on October 1, 2007. Defendants
alleged that the negligent acts and omissions of the surgeons, medical staff and hospitals that
were involved in the cervical disectomy caused or contributed to decedent’s death.
Plaintiffs filed their first amended complaint on November 26, 2007. The amended
complaint contained the same three counts as the original complaint. However, unlike the
original complaint, it sought damages pursuant to the Michigan Wrongful Death Act.
Defendants filed their answer to the first amended complaint on December 17, 2007. In their
corresponding affirmative defenses, defendants asserted that a nonparty to the litigation caused
decedent’s injuries and, similarly, that the injuries resulted from an intervening, superseding
event.
On February 20, 2008, plaintiffs filed a motion to strike defendants’ notice of nonparty at
fault. In the motion, plaintiffs alleged that the notice failed to comply with MCR 2.112(K)(3)(b)
where it did not contain a statement that explained the basis for believing that the nonparty was
at fault. Plaintiffs further argued that the notice should be struck pursuant to a discovery
sanction. The trial court held a hearing on the motion on March 14, 2008. After brief arguments
from each party, the trial court stated that the notice of nonparty at fault was in compliance with
the cited court rule. The court further held that defendants’ responses to the interrogatories were
adequate when considering the early stages of the litigation and when considering that
defendants were continuing to expand upon their theories. Consequently, the court denied the
motion.
-2-
On July 10, 2008, plaintiffs again filed a motion that sought to strike the notice of
nonparty at fault. The motion further sought partial summary disposition and an order
compelling the depositions of Mr. Jackson’s treating doctors. Regarding the notice of nonparty
at fault, plaintiffs argued that the notice should be stricken because a tortfeasor is liable for all
foreseeable injuries arising from his conduct, including damages that result from subsequent
medical treatment. Plaintiffs asserted that the medical providers would be considered successive
tortfeasors, as opposed to joint tortfeasors, and could not share in the liability for Mr. Jackson’s
injuries. Regarding the motion for partial summary disposition, plaintiffs argued that partial
summary disposition was proper where the only causation issue was whether the surgery that
resulted in the death reasonably related to the injuries suffered in the car accident. Consequently,
plaintiffs further argued that because it was necessary to determine the relationship between the
surgery and the car accident, the trial court should order the depositions of the treating doctors.
On July 30, 2008, DMC filed a response to plaintiff’s motion seeking to compel
depositions of DMC employees. DMC argued that any such action would be improper where no
notice of intent or affidavit of merit had been filed because Michigan law expressly required the
medical providers be aware of the theory of malpractice before the initiation of the discovery
period.
The trial court held a hearing on the motions to strike the notice of nonparty at fault, for
partial summary disposition and to compel discovery on August 1, 2008. At the hearing,
plaintiffs reiterated their arguments that the Michigan allocation of fault statutes did not permit a
successive tortfeasor to share in liability and that the common law prevented an alleged act of
medical malpractice from being classified as an intervening, superseding cause. In response,
defendants argued that plaintiffs were improperly interpreting the allocation of fault statutes and
that those statutes broadly permitted the filing of notices of nonparties at fault and did not require
corresponding affidavits of merit or notices of intent. The trial court indicated that it did not
believe that the legislature and the courts of this state intended the notice of nonparty at fault
statute to trump the medical malpractice pleading requirements. DMC reiterated the arguments
from its brief and alleged that defendants were trying to transform the cause of action into one
for medical malpractice without meeting the requirements for a medical malpractice action.
Following DMC’s argument, the trial court stated that DMC’s argument “was the strongest
argument [the court] heard all morning.” The court concluded that the statutes relating to
nonparties at fault were not intended to subvert the medical malpractice statutes. The court
consequently struck defendants’ notice of nonparty at fault, struck the corresponding affirmative
defense and limited any deposition of medical personnel to the subject of whether the surgery
reasonably related to the car accident. The court issued a written order on September 4, 2008.
The order stated that there could be no allocation of fault to Mr. Jackson’s medical providers and
that any affirmative defense relating to those medical providers was consequently stricken. The
order also provided that the parties could conduct discovery only relating to whether the surgery
was reasonably necessary.
On appeal, defendants argue that the comparative fault statutes permitted the filing of
their notice of nonparty at fault. We disagree. This case involves questions of statutory
interpretation, which we review de novo. Detroit v Ambassador Bridge Co, 481 Mich 29, 35;
748 NW2d 221 (2008).
-3-
We conclude that the comparative fault statutes do not allow for a finding of liability on
behalf of the medical providers. We base our conclusion on this Court’s recent opinion in Slager
v Kid’s Kourt, LLC, ___ Mich App ___; ___ NW2d ___ (2010), in which this Court disallowed a
defendant’s notice of nonparty at fault that named the minor plaintiff’s parents. The court
reasoned that the injury occasioned by Kid’s Kourt’s negligence was separate from that caused
by the parent’s failure to follow certain medical advice for the injury. Id., slip op at 1-2.
Admittedly, Slager did not address the long standing precedent that medical negligence was a
foreseeable consequence of any tort requiring medical care and not actionable. Likewise, Slager
did not tackle the thorny procedural issues raised by the interplay of the pre-suit jurisdictional
affidavit requirements of MCL 600.2912b(1) and MCR 2.112(k)(3)(b) However, the relevant
and controlling precedent established by Slager is that MCL 600.2957 allows a notice of
nonparty at fault against any party, immune or not, who contributes to a single injury. As the
Court stated, “[w]e find nothing in MCL 600.2957 that conflicts with our assessment that the
comparative fault statutes are inapplicable with respect to fact patterns entailing multiple torts
separated in time, multiple torts separated by individual causal chains, and multiple torts which
did not produce a single, indivisible injury.”
In Slager, the plaintiff’s fingers were crushed and lacerated at a day care center. He was
treated by a physician who urged the parents to follow a course of physical therapy, which they
failed to do. Slager, slip op at 2. The analysis of the Slager Court focused on which activity
proximately caused or contributed to the crush and laceration. The Court explained:
We hold that the comparative fault statutes have no application in this case
because, as a matter of law and indisputably, defendants were the only parties at
fault and there were no other tortfeasors with respect to conduct that was the
factual and proximate cause of Chad's finger injuries by way of the occurrence at
the daycare center. Any presumed negligence by the parents in regard to Chad's
medical treatment after the injuries occurred at the daycare center did not trigger
the need to assess their fault for purposes of the comparative fault statutes, given
that such negligence was not part of the causal chain in regard to Chad's finger
becoming crushed and lacerated in the first place. Rather, any negligent conduct
by the parents constituted a subsequent, separate tort that initiated a new causal
chain leading to its own set of damages. However, on remand, and under general
principles of tort law, plaintiff will have to prove by a preponderance of the
evidence that any claimed damages were caused solely by defendants' negligence.
[Id., slip op at 9-10.]
Applying the Slager analysis to the present case, the injury to Mr. Jackson occurred when he was
in an automobile collision. Specifically, the first amended complaint address injuries to his
cervical spine. The surgery that preceded his death occurred months later, just as the parents’
failure to obtain physical therapy services for the minor in Slager was separated in time from the
initial laceration.
The plaintiffs in this case, like the parents in Slager, seek to recover damages arising
from the injury occasioned by the motor vehicle accident. The fact that Mr. Jackson
subsequently died does not obliterate the distinction between the injury occasioned by
defendant’s alleged negligent operation of a motor vehicle and any medical negligence that arose
-4-
months later from the treatment of that injury. These plaintiffs, like the Slager plaintiff, bear the
burden of proof regarding which damages were proximally caused by that accident.
Consequently, the trial court did not err in striking defendants’ notice of nonparty at fault.
We further conclude that even if this notice of nonparty at fault was permitted under the
comparative fault statutes, the striking of that notice would have nonetheless been proper.
Although a trier of fact may allocate fault to a nonparty, see MCL 600.6304(1)(b), it may not do
so unless notice “has been given as provided in this subrule.” MCR 2.112(K)(2). Under the
subrule, any party “against whom a claim is asserted may give notice of a claim that a nonparty
is wholly or partially at fault.” MCR 2.112(K)(3)(a). The notice must “set forth the nonparty’s
name and last known address, or the best identification of the nonparty that is possible, together
with a brief statement of the basis for believing the nonparty is at fault.” MCR 2.112(K)(3)(b).
In their notice, defendants identified the nonparties at fault as “[u]nknown surgeons,
medical staff, and hospitals.” This identification was plainly not “the best identification of the
nonparty that is possible” under the circumstances. See MCR 2.112(K)(3)(b). In order to even
speculate that the medical personnel who participated in Jackson’s surgery might have caused his
death, defendants had to have had some knowledge about Jackson’s surgery. And, because the
identification must be the best identification possible, defendants had an obligation to take
minimal steps to ascertain the identities of the medical professionals. Indeed, the court rules
permit the party filing the notice to file it within 91 days “after the party files its first responsive
pleading,” and thereafter permit a filing 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.”
See MCR 2.112(K)(3)(c) (emphasis added). That is, the subrule contemplates that the party
giving notice will exercise reasonable diligence in ascertaining the facts—including the identities
of the nonparties who might have been at fault—and gives the party significant time to exercise
that diligence. Accordingly, given the relative ease with which defendants could have
ascertained the identities of the persons who actually participated in the surgery, we must
conclude that defendants did not give the “best identification possible” as to those nonparties.
In addition to the deficient identification, defendants completely failed to state the “basis
for believing” that the unknown medical professionals were “at fault.” MCR 2.112(K)(3)(b).
Defendants merely asserted that the unknown medical professionals were “negligent.” However,
this is not a valid statement of the basis for believing that the medical professionals were at fault.
In order to state the basis for believing that others bear fault, the party filing notice must identify
specific acts or omissions that it reasonably believes might have caused the harm at issue. To
interpret the rule otherwise would be to invite parties to give notices that are based on nothing
more than pure speculation. Consequently, the notice of nonparty at fault did not comply with
the requirements of MCR 2.112(K)(3)(b) and the trial court did not err in granting the motion to
strike.
Next we must examine whether the trial court erred in limiting discovery of the DMC
staff. The DMC has argued that to allow broad discovery would be tantamount to circumventing
the notice requirements of MCL 600.2912b. Consequently, the DMC joins plaintiffs, who ask
that we affirm the trial court’s discovery limitation. Defendants argue that the ruling unfairly
impinges their ability to present a defense to the prayer for damages. We agree with defendants.
A trial court’s decision to limit discovery is reviewed for an abuse of discretion. In re Hammond
-5-
Estate, 215 Mich App 379, 387; 547 NW2d 36 (1996). The abuse of discretion standard
recognizes that so long as the trial court selects any one of many principled outcomes, its ruling
will not be disturbed. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
“It is well settled that Michigan follows an open, broad discovery policy that permits
liberal discovery of any matter, not privileged, that is relevant to the subject matter involved in
the pending case.” Reed Dairy Farm v Consumers Power Co, 227 Mich App 614, 616; 576
NW2d 709 (1998). The trial court reasoned that if fault cannot be allocated to the medical
providers, the only relevant question for the medical providers is whether the surgical procedure
that resulted in death was related to the car accident. The court opined that further discovery
would be unnecessary because the conduct of the medical providers would be completely
irrelevant to the jury’s task. However, such reasoning ignores the fact that plaintiffs chose to file
the first and third-party cases together. In the third-party case, plaintiffs bear the burden of
proving which damages are attributable to the negligent actions, if any, of EMCEA and Abrams.
Thus, issues beyond the limited scope of discovery authorized by the court are relevant to the
jury’s task.
Affirmed in part, reversed in part and remanded for further proceedings. We do not
retain jurisdiction. No costs to either party.
/s/ Cynthia Diane Stephens
/s/ David H. Sawyer
/s/ Michael J. Kelly
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
