Susan Furr v. Michael McLeod Md

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Syllabus Robert P. Young, Jr. Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis

TYRA v ORGAN PROCUREMENT AGENCY OF MICHIGAN
FURR v McLEOD

Docket Nos. 148079, 148087, and 149344. Argued May 5, 2015. Decided July 22, 2015.

Lisa Tyra filed an action against Organ Procurement Agency of Michigan (Organ
Procurement); Steven Cohn, M.D., and William Beaumont Hospital (the Beaumont defendants);
Dillip Samara Pungavan, M.D.; and John Doe in the Oakland Circuit Court, alleging medical
malpractice after she suffered complications following a kidney transplant. Tyra sent a notice of
intent to sue (NOI) to defendants under MCL 600.2912b, and filed her complaint 112 days later,
rather than waiting the 182 days required by MCL 600.2912b(1). Pungavan and Doe were
dismissed from the action. Organ Procurement and the Beaumont defendants moved for
summary disposition, claiming that the action should be dismissed with prejudice because Tyra
had prematurely filed her complaint and the limitations period had expired so it could not be
refiled. Tyra argued that defendants had waived the notice-period affirmative defense because
their responsive pleadings had failed to put her on notice that she had not complied with the
requirement. The court, Nanci J. Grant, J., granted summary disposition in favor of Organ
Procurement and the Beaumont defendants, concluding that their failure to provide detailed facts
concerning the affirmative defense did not waive the notice-period defense and the prematurely
filed complaint failed to toll the running of the limitations period, which had since expired so
that Tyra could not cure the notice-period error by refiling the complaint. Tyra appealed. The
Court of Appeals, RONAYNE KRAUSE and STEPHENS, JJ. (WILDER, P.J., dissenting), reversed,
holding that the trial court had discretion under MCL 600.2301 to allow Tyra to amend the filing
date of her complaint. 302 Mich App 208 (2013). Organ Procurement (Docket No. 148079) and
the Beaumont defendants (Docket No. 148087) both sought leave to appeal. The Supreme Court
ordered and heard oral argument on whether to grant the applications or take other peremptory
action. 497 Mich 909, 910 (2014).

Susan and William Furr brought a medical malpractice action in the Kalamazoo Circuit
Court against Michael McLeod, M.D., Tara B. Mancl, M.D., and others, alleging that Susan had
suffered nerve damage during surgery. The Furrs served the healthcare providers with an NOI,
but filed their complaint before the end of the applicable notice period set forth in MCL
600.2912b. The Furr defendants moved for summary disposition, contending that the running of
the statutory limitations period had not been tolled by the filing of the premature complaint and
the action was now barred. The Furrs contended that pursuant to Zwiers v Growney, 286 Mich
App 38 (2009), the court could invoke MCL 600.2301 to ignore the premature filing, as long as
doing so did not prejudice a substantial right of a party. The court, Alexander Lipsey, J., denied
the motion for summary disposition. The Furr defendants sought leave to appeal. While the
application was pending, the Michigan Supreme Court, in Driver v Naini, 490 Mich 239 (2011),
clarified the role of Burton v Reed City Hosp Corp, 471 Mich 745 (2005), in medical malpractice
disputes. In lieu of granting leave to appeal, the Court of Appeals remanded for the trial court to
reconsider defendants’ motion for summary disposition in light of the Supreme Court’s decisions
in Burton and Driver. On remand, the trial court concluded that both Driver and Burton were
distinguishable and, on the basis of Zwiers, again denied defendants’ motion for summary
disposition. Defendants’ application for leave to appeal was then granted by the Court of
Appeals. The lead opinion by Presiding Judge WHITBECK, released October 24, 2013, concluded
that the Supreme Court’s opinion in Driver overruled the Court of Appeals’ interpretation of the
effects of Bush v Shabahang, 484 Mich 156 (2009), in Zwiers and that Tyra, 302 Mich App 208,
was incorrectly decided to the extent that it concluded that Zwiers continued to be valid law.
Presiding Judge WHITBECK stated that Zwiers was applicable only because MCR 7.215(J)
required the Court to follow Tyra and affirm the denial of summary disposition. Noting the
conflict, he requested that a special panel be convened to resolve the issue. Judge OWENS,
concurring, agreed that the case was controlled by Tyra and that the trial court’s decision must be
affirmed. He stated, however, that because Tyra was correctly decided, a conflict panel should
not be convened. Judge M. J. KELLY, concurring, agreed that Tyra was controlling and that a
conflict panel should be convened, although he disagreed with the analysis in the lead opinion.
The Court of Appeals then ordered that a special panel be convened to resolve the conflict with
Tyra and that the opinions in Furr released October 24, 2013, be vacated. 303 Mich App 801
(2013). The conflict panel, MURPHY, C.J., and MARKEY, BORRELLO, and BECKERING, JJ.
(O’CONNELL, TALBOT, and METER, JJ., dissenting), affirmed the decision of the trial court,
concluding that there was no clear language in Driver overruling Zwiers. The Furr defendants
sought leave to appeal (Docket No. 149344). The Supreme Court ordered and heard oral
argument on whether to grant the application or take other peremptory action. 497 Mich 910
(2014).

In an opinion by Justice MARKMAN, joined by Chief Justice YOUNG and Justices KELLY
and ZAHRA, the Supreme Court held:

Driver and Zwiers are clearly inconsistent, and Driver controls over Zwiers. Plaintiffs’
filing of their complaints before the expiration of the notice period did not commence their
actions or toll the running of the limitations period. And MCL 600.2301 cannot save plaintiffs’
actions because MCL 600.2301 only applies to pending actions or proceedings and there never
were pending actions in these cases because plaintiffs’ complaints, filed before the notice period
expired, could not commence an action. Even assuming that there were pending proceedings at
the time plaintiffs filed their NOIs, the proceedings were no longer pending when the trial courts
ruled on defendants’ motions for summary disposition because the limitations periods had
expired by that time and a proceeding cannot be pending if it is time-barred.

1. MCL 600.2912b(1) requires that the plaintiff in a medical malpractice action give the
defendant written notice of the plaintiff’s intent to sue before commencing the action. After
providing this NOI, the plaintiff must wait for the applicable notice period, usually 182 days, to
pass before filing the action. A claimant normally has two years from the time his or her claim
accrues to file suit, but, under MCL 600.5856(c), the running of the limitations period is tolled
during the notice period. Under MCL 600.5856(a), the filing of a medical malpractice complaint
with the required affidavit of merit after the notice period has elapsed also tolls the running of
the limitations period. The Supreme Court held in Burton that a complaint filed before the
expiration of the notice period does not toll the running of the limitations period. In Bush, the
Supreme Court held that a timely NOI will toll the running of the limitations period even if it
contains content defects, and that MCL 600.2301 may be used to cure content defects in an NOI
if the substantial rights of the parties are not affected and the cure is in the furtherance of justice.
In Zwiers, the Court of Appeals held, relying on Bush, that the filing of a complaint one day
before the notice period expired did not affect the defendants’ substantial rights and that MCL
600.2301 could be used to reinstate the plaintiff’s case. In Driver, the Supreme Court held that a
plaintiff is not entitled to amend an NOI to add nonparty defendants so that the amended NOI
relates back to the original filing for purposes of tolling the statute of limitations. Driver
emphasized that under Bush an NOI must be timely filed, that Bush only held that MCL
600.2301 can be applied when an NOI fails to meet all the content requirements under MCL
600.2912b(4), and that MCL 600.2301 only applies to pending actions or proceedings. While
Zwiers held that Bush altered the Court’s holding in Burton, Driver held that nothing in Bush
altered the Court’s holding in Burton. Zwiers was thus overruled by Driver. Therefore, in these
cases, plaintiffs’ filing of their complaints before the expiration of the notice periods did not
commence their actions or toll the running of the limitations periods. And MCL 600.2301
cannot save plaintiffs’ actions because MCL 600.2301 only applies to pending actions or
proceedings and there never were pending actions in these cases because plaintiffs’ complaints,
filed before the notice periods expired, could not commence an action. Even if the filing of the
NOIs commenced “proceedings” for purposes of MCL 600.2301, the proceedings were no longer
pending when the trial courts ruled on defendants’ motions for summary disposition because the
limitations periods had expired by that time and a proceeding cannot be pending if it is time-
barred.

2. The Court of Appeals held that although the Tyra defendants did not adequately state
the grounds for their notice-period defense in their first responsive pleadings, that failure was
irrelevant under Auslander v Chernick, 480 Mich 910 (2007), which adopted the reasoning of
Auslander v Chernick, unpublished opinion per curiam of the Court of Appeals, issued May 1,
2007 (Docket No. 274079) (JANSEN, J., dissenting). Tyra failed to appeal this portion of the
Court’s opinion, and did not brief it in the Supreme Court. Accordingly, the issue was
abandoned and the Court was ill-equipped to address it on the merits. Moreover, appellees who
have not cross-appealed may not obtain a decision that is more favorable to them than was
rendered by the Court of Appeals, and under the holding of the Court of Appeals, the Tyra
defendants might still have prevailed on their notice-period affirmative defense on remand, but a
decision in the Supreme Court holding that the defense was waived would have meant that the
Tyra defendants could not prevail on their notice-period affirmative defense. Therefore, it was
appropriate for the Court to use its discretion and decline to address the sufficiency of the Tyra
defendants’ affirmative defenses.

Court of Appeals judgments reversed in both Tyra and Furr; trial court order granting
defendants’ motion for summary disposition reinstated in Tyra; Furr remanded to the trial court
for entry of an order granting defendants’ motion for summary disposition.
 Justice VIVIANO, joined by Justices MCCORMACK and BERNSTEIN, concurring in part and
dissenting in part, joined the majority opinion in full as it related to Furr, and agreed that the trial
court correctly granted summary disposition in favor of Organ Procurement, but with regard to
the Beaumont defendants, Justice VIVIANO would have affirmed the Court of Appeals on
alternative grounds and remanded for further proceedings. With respect to the majority’s
abandonment holding, Justice VIVIANO stated that Tyra, having obtained a favorable ruling in the
Court of Appeals, was not required to file an application for leave to appeal in order to press an
alternative ground for affirmance. Further, any decision holding that the Beaumont defendants
waived the notice-period defense would not result in an outcome more favorable to Tyra than
that rendered by the Court of Appeals given that both holdings would result in a remand to the
trial court for further proceedings. With respect to the merits of Tyra’s argument, under MCR
2.111(F)(3), a party must state the facts constituting an affirmative defense. An affirmative
defense is adequately stated if it reasonably apprises the plaintiff of the nature of the defense
such that the plaintiff can take a responsive position. When read in context, Organ Procurement
adequately stated its notice-period defense when it alleged that Tyra failed to comply with the
notice provisions of MCL 600.2912b and that the action was therefore barred. In contrast, the
Beaumont defendants broadly asserted the benefits of Michigan’s tort reform acts, which
amended or added 90 statutory sections. Such global allegations do not provide reasonable
notice to allow a plaintiff to take a responsive position. Because the affirmative defense alleged
by the Beaumont defendants was inadequate under MCR 2.111(F)(3), it should have been
deemed waived. Auslander—which stands for the broad proposition that if a complaint is
ineffective at commencing the action, the defendant has no obligation to file affirmative
defenses—is analytically flawed, unsupported by our caselaw and court rules, and should be
overruled. Defendants should be held to the same standard as plaintiffs: compliance with their
procedural obligations under the court rules.

©2015 State of Michigan
 Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

OPINION Robert P. Young, Jr. Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein

FILED July 22, 2015

STATE OF MICHIGAN

SUPREME COURT

LISA TYRA,

Plaintiff-Appellee,

v No. 148079

ORGAN PROCUREMENT AGENCY OF
MICHIGAN, d/b/a GIFT OF LIFE
MICHIGAN,

Defendant-Appellant,
and

STEVEN COHN, M.D., and WILLIAM
BEAUMONT HOSPITAL,

Defendants-Appellees,

and

DILLIP SAMARA PUNGAVAN, M.D., and
JOHN DOE,

Defendants.
LISA TYRA,

Plaintiff-Appellee,

v No. 148087

ORGAN PROCUREMENT AGENCY OF
MICHIGAN, d/b/a GIFT OF LIFE
MICHIGAN,

Defendant-Appellee,

and

STEVEN COHN, M.D., and WILLIAM
BEAUMONT HOSPITAL,

Defendants-Appellants,

and

DILLIP SAMARA PUNGAVAN, M.D., and
JOHN DOE,

Defendants.

SUSAN FURR and WILLIAM FURR,

Plaintiffs-Appellees/
Cross-Appellants,

v No. 149344

MICHAEL MCLEOD, M.D., TARA B.
MANCL, M.D., MICHIGAN STATE
UNIVERSITY KALAMAZOO CENTER
FOR MEDICAL STUDIES, INC., and
BORGESS MEDICAL CENTER,

Defendants-Appellants/
Cross-Appellees.
BEFORE THE ENTIRE BENCH

MARKMAN, J.

At issue here is whether Zwiers v Growney, 286 Mich App 38; 778 NW2d 81

(2009), was overruled by this Court in Driver v Naini, 490 Mich 239; 802 NW2d 311

(2011). The Court of Appeals held that Zwiers was not overruled in Driver. Because we

conclude to the contrary, we reverse the judgment of the Court of Appeals in part in both

Tyra v Organ Procurement Agency of Mich, 302 Mich App 208; 850 NW2d 667 (2013),

and Furr v McLeod, 304 Mich App 677; 848 NW2d 465 (2014). In Tyra, we reinstate the

trial court’s order granting defendants’ motion for summary disposition, and in Furr, we

remand to the trial court for entry of an order granting defendants’ motion for summary

disposition.

I. FACTS AND HISTORY

A. TYRA

On June 9, 2007, plaintiff, Lisa Tyra, received a kidney transplant at defendant

William Beaumont Hospital, with a kidney made available by defendant Organ

Procurement Agency of Michigan (Organ Procurement). Plaintiff allegedly suffered

complications because the kidney did not constitute a proper match, and she now asserts

that defendants should have identified this fact before the surgery. 1 On April 23, 2009,

1
Defendants Dillip Samara Pungavan (a nephrologist) and John Doe (believed to be a
transplant coordinator) were dismissed from the case. General references in this opinion
to the “defendants” in Docket Nos. 148079 and 148087 are to Organ Procurement,
Steven Cohn, and William Beaumont Hospital.

2
plaintiff sent defendants a timely notice of intent (NOI) to file a medical malpractice

action. On August 13, 2009, 112 days after sending the NOI, plaintiff filed her complaint

against defendants. When plaintiff filed her complaint, the 182-day notice period set

forth in MCL 600.2912b(1) had not yet expired, and on January 13, 2010, Organ

Procurement moved for summary disposition on the basis that plaintiff’s complaint was

filed prematurely, i.e., before the expiration of the 182-day notice period, and the period

of limitations had since expired. 2 The hospital and Dr. Steven Cohn, the transplant

surgeon, joined the motion on March 19, 2010, and on May 20, 2010, the trial court

granted the motion. The trial court reasoned that, under Burton v Reed City Hosp Corp,

471 Mich 745; 691 NW2d 424 (2005), the prematurely filed complaint failed to toll the

running of the period of limitations and plaintiff could not cure the error by refiling the

complaint.

On August 15, 2013, a divided Court of Appeals reversed the grant of summary

disposition. Tyra, 302 Mich App 208. The Court of Appeals majority concluded that

Driver had not overruled Zwiers and “on the basis of both Zwiers and the purpose behind

MCL 600.2301, the trial court erred by failing to at least consider the possibility of

allowing plaintiff to amend her complaint . . . .” Id. at 226. The Court accordingly

remanded to allow “the trial court [to] exercise its discretion by either granting or

denying that amendment pursuant to MCL 600.2301 and Zwiers.” Id. at 227. Judge

2
Assuming that plaintiff’s complaint did not toll the running of the limitations period, it
is undisputed that the period expired on December 8, 2009.

3
WILDER dissented on the basis that “Zwiers was undermined by the Supreme Court’s

subsequent decision in Driver . . . .” Id. at 231 (WILDER, P.J., dissenting).

Defendants (in two separate applications) sought leave to appeal in this Court,

arguing that the Court of Appeals erred by concluding that Zwiers remained valid after

Driver. We directed that oral argument be heard on defendants’ applications for leave to

appeal and instructed the parties to address “whether Zwiers v Growney, 286 Mich App

38 (2009), was overruled by this Court’s decision in Driver v Naini, 490 Mich 239

(2011), and whether the defendant’s affirmative defenses were defective because they did

not specifically state the grounds for the defense.” Tyra v Organ Procurement Agency of

Mich, 497 Mich 909, 909-910 (2014).

B. FURR

On April 4, 2008, plaintiff Susan Furr allegedly suffered a severed nerve during

surgery at defendant Borgess Medical Center. On April 4, 2010, plaintiff and her

husband William Furr 3 sent defendants a timely NOI to file a medical malpractice

action. 4 On September 30, 2010, 179 days after sending the NOI, plaintiffs filed their

complaint against defendants. When plaintiffs filed their complaint, the 182-day notice

period set forth in MCL 600.2912b(1), as in Tyra, had not yet expired. 5 On November

3
Plaintiff William Furr sued derivatively for loss of consortium.
4
The NOI was dated April 1, 2010, but plaintiffs acknowledge that it was not actually
mailed until April 4, 2010.
5
Even assuming that the NOI had been sent on April 1, 2010, it is undisputed that the
complaint was filed at least one day prematurely.

4
24, 2010, defendants moved for summary disposition on the basis that plaintiffs’

complaint was filed prematurely, i.e., before expiration of the 182-day notice period, and

that the statute of limitations, also as in Tyra, had since expired. 6 On January 31, 2011,

and again on May 22, 2012, after the Court of Appeals remanded for reconsideration in

light of Driver, the trial court denied defendants’ motion, citing Zwiers for the

proposition that MCL 600.2301 permits a trial court to ignore noncompliance with

MCL 600.2912b(1) when a defendant’s substantial rights are not prejudiced.

On October 24, 2013, a divided Court of Appeals panel affirmed the trial court.

Furr v McLeod, 303 Mich App 801 (2013). In his lead opinion, Judge WHITBECK

asserted that but for Tyra, he would have reversed the trial court and held that Driver

overruled Zwiers. Judge WHITBECK therefore requested the convening of a conflict-

resolution panel. Judge M. J. KELLY, concurring, disagreed with Judge WHITBECK’s

analysis, but agreed that a conflict panel should be convened. Judge OWENS wrote a

separate opinion, concurring in the result, but noting his own conclusion that Tyra was

decided correctly. A conflict-resolution panel was convened and, pursuant to

MCR 7.215(J)(5), the Court’s original judgment in Furr was vacated. Furr, 303 Mich

App 801. In a 4-3 decision, the Court of Appeals conflict panel then affirmed the trial

court. Furr, 304 Mich App 677. The Court majority was “not prepared to hold that

Driver overruled Zwiers by implication.” Id. at 706. The dissenting judges would have

6
Assuming that plaintiff’s complaint did not toll the running of the period of limitations,
it is undisputed that the period of limitations expired in October 2010.

5
reversed the trial court on the basis that Driver did overrule Zwiers. Id. at 706-707

(O’CONNELL, J., dissenting); id. at 707 (METER, J., dissenting).

Defendants sought leave to appeal, arguing that the conflict panel erred by ruling

that Driver did not overrule Zwiers. This Court directed that oral argument be heard on

defendants’ application and directed the parties to address “whether Zwiers v Growney,

286 Mich App 38 (2009), was overruled by this Court’s decision in Driver v Naini, 490

Mich 239 (2011).” Furr v McLeod, 497 Mich 910 (2014). Oral arguments in Tyra and

Furr were heard on May 5, 2015.

II. STANDARD OF REVIEW

This Court reviews de novo decisions on motions for summary disposition. IBM v

Treasury Dep’t, 496 Mich 642, 647; 852 NW2d 865 (2014). This Court also reviews de

novo issues of statutory interpretation. Id.

III. ANALYSIS

A. BACKGROUND

MCL 600.2912b(1) requires that the plaintiff in a medical malpractice action give

the defendant written notice of the plaintiff’s intent to file a claim before commencing a

medical malpractice action against the defendant. After providing the NOI, the plaintiff

must wait for the applicable notice period, usually 182 days, to pass before the plaintiff

can file the medical malpractice action. 7 MCL 600.2912b(1) provides:

7
The pertinent period may be shortened to 154 or even 91 days under circumstances not
relevant here. See MCL 600.2912b(3) and (8). It is undisputed that the plaintiffs in these
two cases filed their complaints before the expiration of the pertinent notice periods.

6
 Except as otherwise provided in this section, a person shall not
commence an action alleging medical malpractice against a health
professional or health facility unless the person has given the health
professional or health facility written notice under this section not less than
182 days before the action is commenced. [Emphasis added.]
“In a medical malpractice action, a claimant normally has two years from the time his

claim accrues to commence a suit.” Driver, 490 Mich at 249, citing MCL 600.5838a(2)

and MCL 600.5805(1) and (6). However, under MCL 600.5856(c), the running of the

two-year period of limitations is tolled during the notice period. In addition, under

MCL 600.5856(a), the filing of a complaint with the required affidavit of merit after the

notice period has elapsed also tolls the running of the period of limitations. 8

MCL 600.5856 provides, in pertinent part:

The statutes of limitations or repose are tolled in any of the
following circumstances:

(a) At the time the complaint is filed, if a copy of the summons and
complaint are served on the defendant within the time set forth in the
supreme court rules.

* * *

(c) At the time notice is given in compliance with the applicable
notice period under section 2912b, if during that period a claim would be
barred by the statute of limitations or repose; but in this case, the statute is

8
MCL 600.2912d(1) provides that the plaintiff in a medical malpractice action “shall file
with the complaint an affidavit of merit . . . .” In Scarsella v Pollak, 461 Mich 547, 549-
550; 607 NW2d 711 (2000), this Court held that “[u]se of the word ‘shall’ indicates that
an affidavit accompanying the complaint is mandatory and imperative,” and therefore
“the mere tendering of a complaint without the required affidavit of merit is insufficient
to commence the lawsuit” and “because the complaint without an affidavit was
insufficient to commence plaintiff’s malpractice action, it did not toll the period of
limitation.” (Quotation marks and citation omitted.)

7
 tolled not longer than the number of days equal to the number of days
remaining in the applicable notice period after the date notice is given.
Finally, MCL 600.2301, a statute of general applicability, provides:

The court in which any action or proceeding is pending, has power
to amend any process, pleading or proceeding in such action or proceeding,
either in form or substance, for the furtherance of justice, on such terms as
are just, at any time before judgment rendered therein. The court at every
stage of the action or proceeding shall disregard any error or defect in the
proceedings which do not affect the substantial rights of the parties.
[Emphasis added.]
In Burton, 471 Mich at 745, this Court held that “[a] complaint filed before the

expiration of the notice period violates MCL 600.2912b and is ineffective to toll the

limitations period,” id. at 747, because “the failure to comply with the statutory

requirement renders the complaint insufficient to commence the action,” id. at 754,

because MCL 600.2912b “unequivocally provides that a person ‘shall not’ commence an

action alleging medical malpractice against a health professional or health facility until

the expiration of the statutory notice period,” id. at 752. Burton further held that

“dismissal is an appropriate remedy for noncompliance with the notice provisions of

MCL 600.2912b and that when a case is dismissed, the plaintiff must still comply with

the applicable statute of limitations.” Id. at 753. Therefore, if the statute of limitations

has already expired, the case must be dismissed with prejudice.

In Boodt v Borgess Med Ctr, 481 Mich 558, 562-564; 751 NW2d 44 (2008), this

Court held that “a plaintiff cannot commence an action before he or she files a notice of

intent that contains all the information required under [MCL 600.2912b(4)],” and

accordingly, “the filing of the complaint and the affidavit of merit that plaintiff was not

yet authorized to file [because the NOI did not contain all the required information] could

8
not possibly have tolled the period of limitations.” Boodt further held that

MCL 600.2301, which allows the court “to amend any process, pleading or proceeding”

and to “disregard any error or defect in the proceedings,” only applies to “pending”

actions and “because the notice of intent was deficient, no action [was] pending . . . .” Id.

at 563 n 4.

In Bush v Shabahang, 484 Mich 156, 161; 772 NW2d 272 (2009), this Court held

that, under the 2004 amendments of MCL 600.5856, “if an NOI is timely, the statute of

limitations is tolled despite defects contained therein.” Bush further held that

MCL 600.2301 “may be employed to cure defects in an NOI.” Id. at 177. 9 Specifically,

MCL 600.2301 “allows for amendment and disregard of ‘any error or defect’ where the

substantial rights of the parties are not affected and the cure is in the furtherance of

justice.” Id. at 161. “A cure is in the furtherance of justice when a party makes a good-

faith attempt to comply with the content requirements of [MCL 600.2912b].” Id. at 185.

In Zwiers, 286 Mich App at 52, the Court of Appeals, relying on Bush and

MCL 600.2301, held that “[u]nder the circumstances of this case in which a complaint

was inadvertently filed one day early on a 182-day waiting period and in which no one

was harmed or prejudiced by the premature filing, it would simply constitute an injustice

to deprive plaintiff of any opportunity to have the merits of her case examined and

9
Although Bush reached a different result than Boodt, Bush did not overrule Boodt. This
is explained by the fact that while Bush addressed the proper interpretation of
MCL 600.5856, as amended by 2004 PA 87, Boodt involved the proper interpretation of
the statute as it existed before it was amended by 2004 PA 87.

9
addressed by a court of law.” Therefore, the court reversed the trial court’s order

granting the defendants’ motion for summary disposition, “reinstated” the plaintiff’s

medical malpractice suit, and “remanded for further proceedings consistent with this

opinion.” Id. at 52-53. 10

This Court denied the defendants’ subsequent application for leave to appeal.

Zwiers v Growney, 486 Mich 1058 (2010). Three Justices would have reversed the Court

of Appeals for the reasons stated in the dissenting statement in Ellout v Detroit Med Ctr,

486 Mich 1058 (2010). Zwiers, 486 Mich at 1058 (MARKMAN, J., dissenting). Ellout

involved the identical issue and was decided on the same day as Zwiers. The dissent in

Ellout stated:

Bush is inapplicable here because it involved the filing of a defective
notice of intent, while this case involves the filing of a complaint before the
notice period expired. MCL 600.2301 is also inapplicable here because it
only applies to “pending” actions, and there was no “pending” action here
because a timely complaint had never been filed. As this Court recognized
in Burton, MCL 600.2912b(1) unambiguously states that a person “shall
not commence an action” until the notice period has expired. Because
plaintiff was not authorized to commence this action when she filed the
complaint, no action has been commenced, and, thus, there is no pending
action. As this Court explained in Boodt v Borgess Med Ctr, 481 Mich
558, 564 (2008), if a plaintiff fails to file a notice of intent that complies

10
Zwiers, 286 Mich App at 46, stated that “[a]lthough application of Burton alone would
require us to affirm the summary dismissal of plaintiff’s case, the Court in Burton, as
opposed to the case at bar, was not presented with an argument under MCL 600.2301,”
and “[g]iven that Burton did not address MCL 600.2301 and that Bush has shed new light
on MCL 600.2301 and its effect on the NOI statute,” “[w]e cannot blindly follow Burton
if MCL 600.2301 and Bush demand a different outcome.” Zwiers then concluded that
MCL 600.2301 and Bush did, in fact, demand a different outcome.

10
 with the statutory requirements, that plaintiff is not authorized to file a
complaint.

Furthermore, allowing plaintiff to file a complaint before the notice
period has expired would affect defendants’ substantial rights because it
would deprive them of the 154 or 182 days of notice that the statute clearly
entitles them to.

Burton and Boodt have not been overruled, and, thus, are still good
law; and the Court of Appeals clearly did not follow Burton and Boodt.
Therefore, I would reverse the Court of Appeals. [Ellout, 486 Mich at 1059
(MARKMAN, J., dissenting) (emphasis added).]
In Driver, 490 Mich at 243, we held that “a plaintiff is not entitled to amend an

original NOI to add nonparty defendants so that the amended NOI relates back to the

original filing for purposes of tolling the statute of limitations . . . .” Driver explained

that “[t]he Bush majority held that when an NOI fails to meet all of the content

requirements under MCL 600.2912b(4), MCL 600.2301 allows a plaintiff to amend the

NOI and preserve tolling unless the plaintiff failed to make a good-faith effort to comply

with MCL 600.2912b(4).” Id. at 252-253. Accordingly, Driver held that “the holding in

Bush that a defective yet timely NOI could toll the statute of limitations simply does not

apply here because CCA [the nonparty defendant] never received a timely, albeit

defective, NOI.” Id. at 253. Concerning the effect of Bush on Burton, Driver explained:

Nothing in Bush altered our holding in Burton. The central issue in
Bush involved the effect an NOI had on tolling when the NOI failed to
comply with the content requirements of MCL 600.2912b(4). The central
issue in Burton involved the effect the plaintiff’s failure to comply with the
notice-waiting-period requirements had on tolling. Indeed, the Bush Court
repeatedly emphasized that the focus of MCL 600.5856(c) is compliance
with the notice waiting period set forth in MCL 600.2912b. In contrast to
placing doubt on the viability of Burton, this aspect of Bush aligned with
Burton’s holding that a plaintiff must comply with the notice waiting period
to ensure the complaint tolls the statute of limitations. [Id. at 257-258
(citations omitted).]

11
 Driver also held that “MCL 600.2301 is inapplicable because there was no action

or proceeding pending against CCA” because the “plaintiff’s claim was already time-

barred when he sent the NOI”; and “[a]n action is not pending if it cannot be

commenced,” and “[b]y its plain language, MCL 600.2301 only applies to actions or

proceedings that are pending.” Id. at 254 (quotation marks and citation omitted). Finally,

Driver noted that “amendment of the original NOI to allow plaintiff to add CCA would

not be ‘for the furtherance of justice’ and would affect CCA’s ‘substantial rights,’ ”

because it would “deprive CCA of its statutory right to a timely NOI followed by the

appropriate notice waiting period” and “CCA would also be denied its right to a statute-

of-limitations defense.” Id. at 254-255 (quotation marks and citations omitted).

In Tyra, 302 Mich App at 220-221, the Court of Appeals reluctantly relied on this

Court’s decision in Burton, and held that “a medical malpractice complaint filed prior to

the expiration of the MCL 600.2912b waiting period does not commence the action and

does not toll the running of the limitations period pursuant to MCL 600.5856(a).” The

majority recognized that “Burton has not been overturned” and that “citing to Burton, our

Supreme Court recently reaffirmed that ‘when a plaintiff fails to strictly comply with the

notice waiting period under MCL 600.2912b, his or her prematurely filed complaint fails

to commence an action that tolls the statute of limitations.’ ” Tyra, 302 Mich App at 223,

quoting Driver, 490 Mich at 256.

However, relying on the Court of Appeals opinion in Zwiers and distinguishing

Driver, the Court ultimately held that the Tyra plaintiff may be permitted to amend her

complaint under MCL 600.2301. Specifically, the Court held that Driver is

distinguishable because “[i]n Driver, the plaintiffs were barred from the initial step of the

12
proceedings of filing the notice of intent, whereas here, there is no dispute that the notice

of intent was proper” and that while “MCL 600.2301 cannot be used to create a filing out

of whole cloth, . . . no such bootstrapping would occur here, where all the requisite

documents actually exist.” Tyra, 302 Mich App at 224. Relying on Zwiers and

MCL 600.2301, the Court of Appeals remanded to the trial court for it to “examine

whether the party seeking amendment lacked good faith and whether the party opposing

amendment will suffer prejudice that cannot be remedied by a lesser sanction than

dismissal.” Id. at 226.

The Court of Appeals dissent, relying on Burton and Driver and believing that

Zwiers was “significantly undermined by our Supreme Court’s later decision in Driver,”

concluded that “plaintiff’s complaint cannot be resurrected under MCL 600.2301.” Tyra,

302 Mich App at 230 (WILDER, P.J., dissenting). The dissent explained:

[T]he limitations period expired without commencement of a medical
malpractice action because plaintiff’s complaint was filed prematurely.
Since [a]n action is not “pending” if it cannot be [or was not]
“commenced,” there was no action pending in the trial court to which MCL
600.2301 could be retroactively applied. Moreover, retroactive application
of MCL 600.2301 would affect defendant’s substantial rights because
defendant would be “denied its right to a statute-of-limitations defense,”
which is plainly contrary to, and not in furtherance of, the Legislature’s
intent in enacting MCL 600.2912b. [Id. at 230 (quotation marks and
citations omitted; alterations in original).]
In Furr, 303 Mich App 801, the Court of Appeals originally held that although the

Furr plaintiffs filed their complaint before the end of the 182-day notice period, they

could amend their prematurely filed complaint. In his lead opinion, however, Judge

WHITBECK only reached that result because he concluded the Court was bound by Tyra.

Judge WHITBECK asserted that Tyra was wrongly decided and called for a conflict-

13
resolution panel. See MCR 7.215(J). Specifically, Judge WHITBECK believed that Driver

overruled Zwiers because Driver held that “a plaintiff may only invoke MCL 600.2301 to

correct a defective content requirement in the notice of intent.” Id. at 809 (opinion by

WHITBECK, J.).

In a split decision, the conflict panel held that Driver did not overrule Zwiers.

Furr, 304 Mich App at 680. It further held that Driver is distinguishable from Zwiers,

Tyra, and Furr because in Driver the plaintiff’s claim was already time-barred when he

sent the NOI, but “[i]n Zwiers, Tyra, and Furr, however, the NOIs were timely served on

the defendants, so while actions had not been commenced because of the premature filing

of complaints and no actions were therefore pending for purposes of MCL 600.2301,

proceedings had been commenced given the timely NOIs and proceedings were therefore

pending,” and “MCL 600.2301 speaks of a pending ‘action or proceeding.’ ” Id. at 694.

The conflict panel held that Driver cannot be interpreted to mean that only content-based

amendments are permitted under MCL 600.2301 because MCL 600.2301 “empowers a

court to amend any process, pleading, or proceeding ‘either in form or substance[.]’ ” Id.

at 699, quoting MCL 600.2301 (alteration in original). The dissenting judges indicated

that they were dissenting for the reasons stated in Judge WHITBECK’s vacated opinion in

Furr and in the dissenting opinion in Tyra. Id. at 706-707 (O’CONNELL, J., dissenting).

Judge METER separately indicated that although he was a member of the panel that

14
decided Zwiers, he believed that Driver overruled Zwiers. 11 Id. at 707 (METER, J.,

dissenting).

B. AFFIRMATIVE DEFENSES

In Tyra, 497 Mich at 910, we asked the parties to address “whether the defendants’

affirmative defenses were defective because they did not specifically state the grounds for

the defense.” The Court of Appeals held that although the Tyra defendants did not

adequately state the grounds for the affirmative defense of plaintiff’s failure to comply

with the notice period, that did not matter because this Court held in Auslander v

Chernick, 480 Mich 910 (2007), 12 that a plaintiff’s failure to comply with the notice

period remains available as a defense irrespective of whether the defendant adequately

stated the grounds for the defense. Although the Tyra defendants appealed a different

portion of the Court of Appeals’ opinion, the Tyra plaintiff did not appeal this portion of

the opinion. Indeed, the Tyra plaintiff has not even filed a brief in this Court. Because

11
In Zwiers, on remand, the trial court granted the defendants’ motion for summary
disposition, holding that the Supreme Court overruled the Court of Appeal’s decision in
Zwiers. The Court of Appeals reversed the trial court and held that “[t]he analysis
engaged in by this Court in Zwiers is still applicable to the factual situation presented in
the instant appeal.” Zwiers v Growney, unpublished opinion per curiam of the Court of
Appeals, issued June 24, 2014 (Docket No. 312133), p 3. Judge RIORDAN wrote a
concurring opinion in which he stated, “If not for the Furr decision, I would affirm the
trial court’s order granting summary disposition in favor of the defendants.” Id.
(RIORDAN, J., concurring), p 1. An application for leave to appeal is currently pending in
this Court in Zwiers (Docket No. 149815).
12
Adopting Auslander v Chernick, unpublished opinion per curiam of the Court of
Appeals, issued May 1, 2007 (Docket No. 274079) (JANSEN, J., dissenting).

15
the Tyra plaintiff has not briefed the issue, it has been abandoned. People v McGraw,

484 Mich 120, 131 n 36; 771 NW2d 655 (2009) (“Failure to brief an issue on appeal

constitutes abandonment.”). Although “the failure of an appellee to file a responsive

brief may not properly be considered to be a confession of substantive error,” People v

Smith, 439 Mich 954 (1992), appellees who have not cross-appealed “may not obtain a

decision more favorable to them than was rendered by the Court of Appeals,” McCardel

v Smolen, 404 Mich 89, 94-95; 273 NW2d 3 (1978). 13 See also In re MCI, 460 Mich

396, 432; 596 NW2d 164 (1999) (“Appellee Ameritech has neither applied for leave to

cross appeal on this issue, nor offered this argument as an alternative rationale to support

the favorable ruling it received below. Accordingly, this issue, itself, is not properly

before the Court.”); McGraw, 484 Mich at 131 n 36 (“[W]e do not contend that an

13
In his opinion concurring in part and dissenting in part, Justice VIVIANO asserts that
“any decision holding that defendants waived the notice-waiting-period affirmative
defense would not result in an outcome more favorable to plaintiff than that rendered by
the Court of Appeals,” because “[b]oth holdings would result in a remand to the trial
court for further proceedings.” We respectfully disagree. The Court of Appeals
remanded to afford plaintiff “the opportunity to make an argument in support of
amending the filing date of her complaint and affidavit of merit” and to allow the trial
court to “exercise its discretion by either granting or denying that amendment pursuant to
MCL 600.2301 and Zwiers.” Tyra, 302 Mich App at 227. However, the Court of
Appeals recognized that “the applicability of Zwiers to the instant case is unclear,”
especially since “plaintiff’s prematurity in this case is vastly more egregious than that in
Zwiers.” Id. at 225. Therefore, pursuant to the remand of the Court of Appeals,
defendants might still have prevailed based on their notice-waiting-period affirmative
defense. But if this Court were to hold that defendants waived this defense, defendants
would not be able to prevail on this basis. Therefore, a decision holding that defendants
waived the defense would, in fact, result in an outcome more favorable to plaintiff than
that rendered by the Court of Appeals.

16
appellee is required to file a cross-appeal to raise a waiver argument. We simply

conclude that an appellee should at some point actually raise the waiver argument. And

if he or she does not do so, this Court may . . . choose not to raise and address the

argument on its own.”). Given that the Tyra plaintiff has not briefed whether the Tyra

defendants sufficiently pleaded their affirmative defenses, nor the relevance of this in

light of Auslander, we need not address these issues and we will not do so here because

plaintiff’s abandonment of these issues has left us ill equipped to address the merits of

these issues. See Wayne Co Employees Retirement Sys v Wayne Charter County, 497

Mich 36, 41; 859 NW2d 678 (2014) (stating that “[t]he county’s abandonment of the

issue on appeal . . . has left us ill equipped to address the merits” of the issue). 14

14
Although Justice VIVIANO is correct that our orders granting oral argument on the
applications directed the parties to address whether defendants sufficiently pleaded their
affirmative defenses “[a]t oral argument,” our orders also stated that “[t]he parties may
file supplemental briefs . . . .” And while counsel for the plaintiffs filed a supplemental
brief in Furr, the same counsel did not file a supplemental brief in Tyra. The issues in
these cases are identical except that Tyra additionally involves the sufficiency-of-the-
pleading-of-the-affirmative-defense issue. That is, while counsel believed that the
substantive merit of the affirmative defense was an issue worthy of a supplemental brief,
he did not apparently believe the procedural-pleading issue was similarly worthy.
Further, although plaintiff’s counsel did raise the latter issue at oral argument, he did not
raise the arguments raised in Justice VIVIANO’s thoughtful analysis. Finally, as Justice
VIVIANO recognizes, the decision he would overrule, Auslander, does not seem to be
causing “chaos” because “despite [its] purported authorization, defendants continue to
follow our court rules and statutes by filing answers and affirmative defenses.” In other
words, it seems most defendants recognize that continuing to file sufficiently pleaded
affirmative defenses, even if not compelled to do so, remains the most prudent course of
action. For all these reasons, we do not believe this is the proper, or necessary, time to
consider whether Auslander should be overruled. To make clear, although we possess
the authority to address this issue, as we do most other issues before us on appeal, we
choose to exercise our discretion not to do so in this case because by failing to file a brief

17
 C. ZWIERS OVERRULED

In both Tyra, 497 Mich at 909-910, and Furr, 497 Mich at 910, this Court directed

the parties to address whether Zwiers was overruled by Driver. We hold that Zwiers was

so overruled. As discussed earlier in this opinion, Zwiers, 286 Mich App at 49, held that

Bush and MCL 600.2301 can be used to save a medical malpractice action that was never

commenced before the statute of limitations expired when the complaint was filed before

the expiration of the NOI waiting period because “Bush makes it abundantly clear that

MCL 600.2301 is applicable to the entire NOI process and any compliance failures under

the NOI statute.” (Emphasis added.) However, Driver, 490 Mich at 258 n 68, held that

“Bush repeatedly recognized that [an] NOI must be timely filed,” 15 that Bush only held

that MCL 600.2301 can be applied “when an NOI fails to meet all of the content

in response to defendants’ applications for leave to appeal, a cross-appeal, a supplemental
brief, or even raise in oral argument anything resembling the arguments raised by
JUSTICE Viviano, the Tyra plaintiff, in our judgment, has left us ill-equipped to address
the issue at this time and there appears to be no particular urgency to address the issue.
15
See, for example, Bush, 484 Mich at 161 (“[T]he current statute, [MCL 600.5856(c)],
makes clear that the question whether tolling applies is determined by the timeliness of
the NOI.”); id. (“[I]f an NOI is timely, the statute of limitations is tolled . . . .”); id. at 169
(“[T]he focus of the new [MCL 600.5856(c)] is unquestionably limited to compliance
with the ‘applicable notice period.’ ”); id. (“[I]f a plaintiff complies with the applicable
notice period before commencing a medical malpractice action, the statute of limitations
is tolled.”); id. at 170 (“[A] plaintiff’s NOI must comply only with the applicable notice
period.”); id. at 172 (“The plain language of [MCL 600.2912b(1)] mandates that a
plaintiff shall not commence an action for medical malpractice without filing a timely
NOI.”); id. at 184 (“If a court ultimately determines that the [defendant’s] response is not
defective, plaintiff’s complaint [if filed 154 days, rather than 182 days after the NOI] may
be deemed untimely.”).

18
requirements under MCL 600.2912b(4),” id. at 252, and that MCL 600.2301 only applies

to pending actions or proceedings, id. at 264. Driver and Zwiers are clearly inconsistent

with one another, and Driver controls over Zwiers. See People v Mitchell, 428 Mich 364,

369; 408 NW2d 798 (1987) (“An elemental tenet of our jurisprudence, stare decisis,

provides that a decision of the majority of justices of this Court is binding upon lower

courts.”).

While Zwiers held that Bush altered our holding in Burton, 16 Driver, 490 Mich at

257, expressly held that “[n]othing in Bush altered our holding in Burton.” 17 As already

discussed, Burton held that the filing of a complaint before the expiration of the NOI

waiting period does not commence an action or toll the running of the period of

limitations. Therefore, in the instant cases (as well as in Zwiers), plaintiffs’ filing of their

complaints before the expiration of the NOI waiting period did not commence their

16
See Zwiers, 286 Mich App at 46, 52 (stating, “We cannot blindly follow Burton if
MCL 600.2301 and Bush demand a different outcome,” and concluding that a different
outcome was required); id. at 40, 52 (“While Burton, standing alone, would compel us to
affirm,” “[p]ursuant to MCL 600.2301 and its interpretation by the Bush Court, we
reverse . . . .”) (citation omitted).
17
In addition, while Zwiers, 286 Mich App at 51, held that the “defendants’ substantial
rights were not implicated or affected, and thus there would be no harm if a court
corrected or disregarded the premature filing of the complaint and affidavit of merit,”
Driver, 490 Mich at 254-255, held that “[a]pplying MCL 600.2301 in the present case
would deprive CCA of its statutory right to a timely NOI followed by the appropriate
notice waiting period” and CCA “would also be denied its right to a statute-of-limitations
defense,” and thus applying MCL 600.2301 “would not be ‘for the furtherance of justice’
and would affect CCA’s ‘substantial rights.’ ” (Quotation marks and citations omitted.)
This is yet another example of the inconsistencies between Zwiers and Driver.

19
actions or toll the running of the limitations period. And MCL 600.2301 cannot save

plaintiffs’ actions because MCL 600.2301 only applies to pending actions or proceedings

and there never were pending actions in these cases. Plaintiffs’ complaints, filed before

the NOI waiting period expired, could not commence an action.

In addition, even assuming that a NOI does constitute part of a “proceeding,” as

Bush held, and, accordingly, that there were pending proceedings at the time plaintiffs

filed their NOIs, the proceedings were no longer pending when the trial courts ruled on

defendants’ motions for summary disposition because the limitations periods had expired

by that time. “A proceeding cannot be pending if it was time-barred . . . .” Driver, 490

Mich at 254. As a result, MCL 600.2301 is inapplicable.

Moreover, ignoring the defects in these cases would not be “for the furtherance of

justice” and would affect defendants’ “substantial rights.” MCL 600.2301. That is, just

as in Driver, 490 Mich at 255, “[a]pplying MCL 600.2301 in the present case[s] would

deprive [defendants] of [their] statutory right to a timely NOI followed by the appropriate

notice waiting period,” and they “would also be denied [their] right to a statute-of-

limitations defense.” Therefore, even if MCL 600.2301 was applicable here, it should

not be viewed as having been satisfied.

Finally, plaintiffs argue that under MCL 600.5856(a), which states that the statute

of limitations is tolled “[a]t the time the complaint is filed,” the running of the limitations

periods in these cases was tolled once the complaints were filed, even though the

complaints were filed prematurely. However, this argument has been repeatedly rejected

by this Court. First, in Scarsella v Pollak, 461 Mich 547, 552; 607 NW2d 711 (2000), we

held that a complaint filed without an affidavit of merit does not toll the running of the

20
limitations period because the contrary interpretation “would undo the Legislature’s clear

statement that an affidavit of merit ‘shall’ be filed with the complaint.” (Citation

omitted.) Later, in Burton, 471 Mich at 747, we held that a complaint filed before the

expiration of the notice period does not toll the running of the limitations period. And in

Boodt, 481 Mich at 562-564, this argument was rejected when we held that a complaint

filed after the filing of a defective NOI does not toll the running of the period of

limitations. As Boodt, 481 Mich at 564, explained:

[P]laintiff failed to file a notice of intent that satisfied the requirements of
[MCL 600.2912b(4)(e)], and, thus, plaintiff was not yet authorized to file a
complaint and an affidavit of merit. Therefore, the filing of the complaint
and the affidavit of merit that plaintiff was not yet authorized to file could
not possibly have tolled the period of limitations.
Plaintiffs argue that these decisions should be overruled because they are

inconsistent with MCL 600.1901, which states that “[a] civil action is commenced by

filing a complaint with the court.” This specific argument was addressed in a concurring

statement to this Court’s order denying the plaintiff’s motion for rehearing in Boodt v

Borgess Med Ctr, 482 Mich 1001 (2008). As was stated:

[M]ore specific statutory provisions control over more general statutory
provisions, and thus the specific requirements of [MCL 600.2912b(1)]
regarding “commenc[ing] an action alleging medical malpractice” prevail
over the general requirements of MCL 600.1901 regarding the commencing
of civil actions. [Boodt, 482 Mich at 1002 (MARKMAN, J., concurring)
(third alteration in original).]
Although a civil action is generally commenced by filing a complaint, a medical

malpractice action can only be commenced by filing a timely NOI and then filing a

complaint and an affidavit of merit after the applicable notice period has expired, but

before the period of limitations has expired. Because plaintiffs did not wait until the

21
applicable notice period expired before they filed their complaints and affidavits of merit,

they did not commence actions against defendants. Because the statute of limitations has

since expired, plaintiffs’ complaints must be dismissed with prejudice.

IV. CONCLUSION

For these reasons, we reverse the Court of Appeals in part in both cases. In Tyra,

we reinstate the trial court’s order granting defendants’ motion for summary disposition,

and in Furr, we remand to the trial court for entry of an order granting defendants’

motion for summary disposition.

Stephen J. Markman
Robert P. Young, Jr.
Mary Beth Kelly
Brian K. Zahra

22
 STATE OF MICHIGAN

SUPREME COURT

LISA TYRA,

Plaintiff-Appellee,

v No. 148079

ORGAN PROCUREMENT AGENCY OF
MICHIGAN, d/b/a GIFT OF LIFE
MICHIGAN,

Defendant-Appellant,
and

STEVEN COHN, M.D., and WILLIAM
BEAUMONT HOSPITAL,

Defendants-Appellees,

and

DILLIP SAMARA PUNGAVAN, M.D., and
JOHN DOE,

Defendants.

LISA TYRA,

Plaintiff-Appellee,

v No. 148087
ORGAN PROCUREMENT AGENCY OF
MICHIGAN, d/b/a GIFT OF LIFE
MICHIGAN,

Defendant-Appellee,

and

STEVEN COHN, M.D., and WILLIAM
BEAUMONT HOSPITAL,

Defendants-Appellants,

and

DILLIP SAMARA PUNGAVAN, M.D., and
JOHN DOE,

Defendants.

SUSAN FURR and WILLIAM FURR,

Plaintiffs-Appellees/
Cross-Appellants,

v No. 149344

MICHAEL MCLEOD, M.D., TARA B.
MANCL, M.D., MICHIGAN STATE
UNIVERSITY KALAMAZOO CENTER
FOR MEDICAL STUDIES, INC., and
BORGESS MEDICAL CENTER,

Defendants-Appellants/
Cross-Appellees.
VIVIANO, J. (concurring in part and dissenting in part).

Two steps forward, one step back. That is how I would describe today’s decision.

Although it satisfactorily resolves the first issue in these appeals, the Court inexplicably

leaves unresolved a compelling threshold issue raised by the plaintiff in Tyra v Organ

Procurement Agency of Mich: if she is to be held to procedural requirements, so should

defendants. More specifically, plaintiff 1 argued in the trial court that defendants waived

the MCL 600.2912b notice-waiting-period affirmative defense because they failed to

adequately plead it under MCR 2.111(F)(3). The Court of Appeals found merit in this

argument, but determined that it was bound by Auslander v Chernick, 480 Mich 910

(2007), an order from this Court relieving defendants in medical malpractice cases from

pleading affirmative defenses in response to complaints that failed to comply with

statutory prerequisites. Tyra v Organ Procurement Agency of Mich, 302 Mich App 208,

211-220; 850 NW2d 667 (2013). After initially requesting oral argument on this issue,

the Court now holds in Part III(B) of the majority opinion that plaintiff “abandoned” this

argument. I dissent from this part of the Court’s opinion. I would address the merits of

plaintiff’s claim that defendants’ affirmative defenses were inadequate under

MCR 2.111(F)(3) and, in so doing, would reject defendants’ argument that they are

exempted from pleading the § 2912b affirmative defense under Auslander.

1
References in this opinion to “plaintiff” are to Lisa Tyra, and references to “defendants”
are to the Organ Procurement Agency of Michigan, Steven Cohn, and William Beaumont
Hospital.

2
 I. ISSUE ABANDONMENT

The majority holds that plaintiff “abandoned” her affirmative defense argument

because she failed to appeal this aspect of the Court of Appeals decision and failed to file

an answer to defendants’ applications for leave to appeal. Both are true, but irrelevant

and certainly no reason for the Court to take a pass on this issue.

First, plaintiff’s failure to file a cross-appeal is a red herring. Having obtained a

favorable decision in the Court of Appeals, plaintiff is not required—under the threat of

“abandonment”—to file a separate application in order to press an alternative ground for

affirmance. Middlebrooks v Wayne Co, 446 Mich 151, 166 n 41; 521 NW2d 774 (1994)

(“A cross appeal was not necessary to urge an ‘alternative ground for affirmance.’ ”).

Contrary to the majority’s implication, any decision holding that defendants waived the

notice-waiting-period affirmative defense would not result in an outcome more favorable

to plaintiff than that rendered by the Court of Appeals. Both holdings would result in a

remand to the trial court for further proceedings.

Second, plaintiff’s failure to file a written answer to defendants’ applications is

irrelevant. Our orders in this case specifically stated, “We direct the Clerk to schedule

oral argument on whether to grant the application or take other action. At oral argument,

the parties shall address . . . whether the [defendants’] affirmative defenses were

defective because they did not specifically state the grounds for the defense.” Tyra v

Organ Procurement Agency of Mich, 856 NW2d 69, 70 (2014) (citation omitted;

emphasis added). Plaintiff did exactly what was requested of her by this Court:

plaintiff’s counsel attended oral argument on defendants’ applications and argued that

defendants’ affirmative defenses were inadequate and that Auslander was incorrectly

3
decided. It is a perversity of the “abandonment” doctrine for this Court to avoid a

preserved issue argued at the time and place directed by the Court. In these

circumstances, plaintiff has primed the appellate pump sufficiently for us to address the

issue. 2

II. ADEQUACY OF DEFENDANTS’ AFFIRMATIVE DEFENSES

Plaintiff argues that defendants’ affirmative defenses were inadequate to put her

on notice that she failed to comply with the notice-waiting-period requirement of

MCL 600.2912b. Michigan’s pleading standard is codified in MCR 2.111. With respect

to pleading affirmative defenses, MCR 2.111(F)(3) provides that “a party must state the

facts constituting” an affirmative defense. An affirmative defense is adequate under

MCR 2.111(F)(3) as long as it reasonably apprises the plaintiff of the nature of the

defense such that the plaintiff can take a responsive position. Hanon v Barber, 99 Mich

App 851, 856; 298 NW2d 866 (1980); Ewing v Heathcott, 348 Mich 250, 255; 83 NW2d

210 (1957). Put differently, an affirmative defense must be stated in sufficient factual

detail to give the plaintiff fair notice of the defensive issues that the defendant will raise

in the litigation.

2
Even if it were true, as the majority says, that plaintiff’s failure to file a written response
has left us ill-equipped to address this issue, there is a simple solution: enter an order
granting defendants’ applications and require the parties to file briefs on this question. At
least then, this case would be analogous to the one relied on by the majority. See Wayne
Co Employees Retirement Sys v Wayne Charter County, 495 Mich 983 (2014) (granting
leave to appeal after hearing oral argument on the application), cited ante at 17.

4
 With this standard in mind, and turning to the affirmative defenses alleged in this

case, defendant Organ Procurement Agency of Michigan’s (OPA) Affirmative Defense

No. 11 stated:

11. Plaintiff failed to comply with the notice provisions of
MCL 600.2912b; MSA 27A.2912b and that Plaintiff’s action is thus barred;
Defendant gives notice that it will move for summary disposition.

This defense certainly could have been more factually precise. 3 However, I am

persuaded that it was specific enough to satisfy the pleading standard of

MCR 2.111(F)(3). Affirmative Defense No. 11 alleged that plaintiff failed to comply

with the “notice” provisions of § 2912b. Generally speaking, there are two ways in

which a plaintiff can fail to comply with the notice requirements of § 2912b: timing or

content. Here, it was clear that OPA was specifically referring to timing because, in the

very next affirmative defense, OPA alleged a content deficiency. Affirmative Defense

No. 12 alleged, “Plaintiff’s claims are barred for failing to provide adequate information

in her Notice of Intent as required by MCL 600.2912b.” OPA’s Affirmative Defense No.

11, when read in the context of the content-deficiency defense raised next, was sufficient

to apprise plaintiff that the timing requirement of § 2912b was not satisfied and, thus, was

sufficient to permit plaintiff to take a responsive position. See Hanon, 99 Mich App at

856 (“The primary function of a pleading is to give notice of the nature of the claim or

defense sufficient to permit the opposite party to take a responsive position.”) (quotation

3
For instance, in the companion case, Furr v McLeod, the Furr defendants alleged,
“Plaintiffs failed to wait 182 days after serving their Notice of Intent before filing suit in
contravention of MCL 600.2912b.”

5
marks and citations omitted). I would, therefore, hold that OPA’s affirmative defense

was adequate under MCR 2.111(F)(3). 4

In contrast to OPA’s affirmative defense, the affirmative defense alleged by

defendants Steven Cohn, M.D., and William Beaumont Hospital (collectively, the

Beaumont defendants) was plainly inadequate. Their Affirmative Defense No. 4 stated:

4. If necessary, Defendants assert all of the benefits of the
provisions set forth in Michigan’s tort Reform Acts of 1986, 1993, and
1995 regarding non-economic caps, offsets, reduction to present value,
offsets for collateral payments, such as insurance, social security, etc., and
any other damage reduction deemed applicable by the Michigan Appellate
Courts in interpretation of these statutes.

In alleging everything, the Beaumont defendants alleged nothing at all. See Dacon v

Transue, 441 Mich 315, 330; 490 NW2d 369 (1992). Together, the four tort reform acts

cited by the Beaumont defendants amended or added 90 statutory sections. See 1995 PA

249; 1995 PA 161; 1993 PA 78; 1986 PA 178. Global allegations like this do not provide

reasonable notice to a plaintiff of how, why, or to what extent his or her cause of action is

barred. It does not indicate the nature of the defense under MCL 600.2912b—indeed, it

fails to mention the statute at all. Given this, it is virtually impossible for a plaintiff to

take a responsive position to such a broad allegation as that set forth in Affirmative

4
In coming to the opposite conclusion and opining that the affirmative defense
“pertained to the notice itself, as distinct from the notice period,” Tyra, 302 Mich App at
215, the Court of Appeals overlooked that OPA alleged a separate affirmative defense
pertaining to the notice itself.

6
Defense No. 4. 5 For this reason, the Beaumont defendant’s affirmative defense was

inadequate under MCR 2.111(F)(3) and should be deemed waived.

The Beaumont defendants argue that this Court should nevertheless affirm the trial

court’s grant of summary disposition in their favor because, under our decision in

Auslander, they were not obligated to raise the affirmative defense in the first place. 6

Indeed, the Court of Appeals was poised to hold that defendants waived their affirmative

defenses, but stopped short of reversing the trial court because it was bound by our order

in Auslander. Under no similar obligation to follow incorrectly decided cases from this

Court, and seeing no basis in law or logic justifying Auslander, I would reject defendants’

argument and overrule Auslander.

III. THE VALIDITY OF AUSLANDER

In Auslander, this Court held that medical malpractice defendants have no

obligation to plead affirmative defenses in response to a complaint that failed to comply

with statutory prerequisites. Our decision consisted of adopting the unpublished Court of

Appeals dissenting opinion, which stated in relevant part: “I conclude that defendants

were never required to raise or plead their asserted defenses in the first instance because

5
In fact, when asked at oral argument whether their affirmative defense was sufficient to
put plaintiff on notice, counsel for the Beaumont defendants conceded, “no, it was not.”
6
Defendants also claim that the trial court granted a constructive amendment of their
affirmative defenses. However, as the Court of Appeals pointed out, there is no
indication that the trial court or the parties believed that any such constructive
amendment occurred. Tyra, 302 Mich App at 217. Accepting this argument under these
circumstances would improperly usurp the trial court’s discretionary authority to grant
leave to amend a pleading “when justice so requires.” MCR 2.118(A)(2).

7
this medical malpractice action was never properly commenced.” Auslander v Chernick,

unpublished opinion per curiam of the Court of Appeals, issued May 1, 2007 (Docket No.

274079) (JANSEN, J., dissenting), p 1.

Any discussion of Auslander should begin with a description of what it actually is:

an exception to the general rule. In Michigan, the general rule is that affirmative

defenses must be raised in the responsive pleading or they are waived. MCR 2.111(F)(3)

(“Affirmative defenses must be stated in a party’s responsive pleading . . . .”); Walters v

Nadell, 481 Mich 377, 389; 751 NW2d 431 (2008). An “affirmative defense” is a

defense that does not refute the plaintiff’s case on the merits, but which otherwise seeks

to deny relief to the plaintiff for reasons unrelated to the plaintiff’s prima facie case. See

Campbell v St John Hosp, 434 Mich 608, 616; 455 NW2d 695 (1990). Asserting

noncompliance with § 2912b—or any statutory precondition—does just that by alleging

that the plaintiff is not entitled to relief based on his or her failure to comply with a

procedural prerequisite. Therefore, this defense must be pleaded in a responsive pleading

under the plain language of our court rules. MCR 2.111(F)(3).

Auslander stands for the broad proposition that if a complaint is ineffective at

commencing the action, the defendant has no obligation to file affirmative defenses, or an

answer for that matter. The legal basis for the Auslander exception was our holding in

Burton v Reed City Hosp Corp, 471 Mich 745; 691 NW2d 424 (2005), and other cases

that a complaint filed in noncompliance with statutory prerequisites does not commence

an action. Auslander (JANSEN, J., dissenting), unpub op at 1, citing Scarsella v Pollak,

461 Mich 547, 549-550; 607 NW2d 711 (2000) (“[T]he mere tendering of a complaint

without the required affidavit of merit is insufficient to commence [a medical

8
malpractice] lawsuit.”) (quotation marks and citation omitted). Burton’s holding dealt

with a question of substantive law: what is the legal effect of filing a complaint in

contravention of a statutory requirement? And as a matter of substantive law, Burton’s

answer is not unsound: a complaint that violates the requirement in MCL 600.2912b(1)

that “a person shall not commence an action” without complying with the notice-waiting

period cannot, as a matter of law, commence the action.

Auslander extended Burton’s logic into the procedural realm on the assumption

that, if an action is defective as a matter of substantive law, that necessarily relieves a

defendant from its procedural obligations. The basic legal flaw of Auslander is that it

conflates substantive rules of law with procedural rules for enforcing those substantive

legal standards. Under Auslander’s circular reasoning, a defendant is relieved of its

obligation to allege and establish that a complaint is legally deficient because the

complaint is legally deficient.

Although an action may be subject to attack because it was not commenced in

compliance with a statutory prerequisite, the consequences that might flow from the

failure to comply with the prerequisite are not self-executing. Our decision in Saffian v

Simmons, 477 Mich 8; 727 NW2d 132 (2007), recognized as much. In that case, the

defendant failed to respond to the plaintiff’s complaint, which was accompanied by a

defective affidavit of merit. In moving to set aside a subsequent default judgment, the

defendant argued that he could not be defaulted because, since the plaintiff’s affidavit of

merit was defective, he never had an obligation to respond to the complaint. We rejected

this argument and its underlying premise that our statutes and court rules permit

defendants to unilaterally determine whether a plaintiff’s pleading is adequate. Id. at 13.

9
Instead, we said, “it is the court’s province to determine the sufficiency of pleadings, not

a defendant’s.” Id., citing Saffian v Simmons, 267 Mich App 297, 312; 704 NW2d 722

(2005) (ZAHRA, P.J., concurring in part and dissenting in part).

The same reasoning should apply to the notice-waiting-period prerequisite of

§ 2912b, or any statutory precondition for that matter. A defendant might think a

complaint filed before the 182-day mark has been filed prematurely, but that

determination is ultimately a legal question that must be resolved by the trial judge. 7 In

order to facilitate orderly resolution of these legal issues, our court rules require parties to

answer complaints and assert applicable affirmative defenses. As we said in Saffian:

[T]his more orderly process of honoring the presumption of the validity of
pleadings, requiring an answer, and then allowing the defendant to
challenge the affidavit reduces the chaotic uncertainty that allowing the
defendant to decline to answer would introduce. [Also], this rule advances
the efficient administration of justice because to allow defendants to nitpick
plaintiffs’ affidavits and, upon discovering an imperfection, to decline to
answer surely leads, as it did here, to challenged default judgments and the
hearings those entail. On the other hand, no such hearings are necessitated
if the procedure is to require an answer and then a motion by the defendant
to challenge the affidavit. This approach will conserve judicial resources
and is advisable for that reason. [Id. at 14.][8]

7
That determination is not always clear-cut given that plaintiffs may rightfully be able to
file suit after 91 days or 154 days depending on the facts of the case. See
MCL 600.2912b(3) and (8).
8
I acknowledge that Saffian, arguably in dicta, distinguished between a defective
affidavit of merit and no affidavit of merit. Saffian, 477 Mich at 13-14. I further
acknowledge that, in rejecting the defendant’s reliance on our decision in Scarsella, we
said, “In Scarsella, we concluded that a medical malpractice complaint not accompanied
by an affidavit of merit does not ‘commence’ a medical malpractice cause of action and
thus the defendant need not file an answer to preclude a default.” Id. at 13 (citation
omitted; emphasis added). However, this was a misreading of our decision in Scarsella.
We did not say in Scarsella that defendants were relieved of their obligation to file an

10
 Auslander’s uncritical extension of Burton’s legal rule into the procedural realm

failed to appreciate the difference between law and procedure. For example, the statute

of limitations affirmative defense involves the legal determination that a complaint was

filed outside a statutorily designated period of time for filing a complaint.

MCL 600.5805(1) provides that “[a] person shall not bring or maintain an action . . .

unless . . . the action is commenced within the periods of time prescribed by this section.”

The language of § 5805(1) and § 2912b(1) (and similar medical malpractice provisions)

are materially identical—each prohibits a party from bringing an action unless certain

conditions are satisfied. By Auslander’s logic, a complaint filed after the expiration of

the statute of limitations is ineffective at “commencing” the action and, therefore,

defendants should have no obligation to assert the statute of limitations affirmative

defense at all. Yet, by court rule and caselaw, defendants are required to raise the statute

of limitations defense in their first responsive pleading or else it is waived. See

MCR 2.111(F)(3)(a); Walters, 481 Mich at 389.

answer. All that Scarsella held was that, as a substantive matter of law, failure to file a
complaint along with an affidavit of merit does not “commence” an action or toll the
running of the period of limitations. See Scarsella, 461 Mich at 549 (“We therefore
conclude that, for statute of limitations purposes in a medical malpractice case, the mere
tendering of a complaint without the required affidavit of merit is insufficient to
commence the lawsuit.”) (quotation marks and citation omitted). Auslander—which
itself involved the failure to file an affidavit of merit—reflects an exacerbation of
Saffian’s error. See Auslander (JANSEN, J., dissenting), unpub op at 1, citing Scarsella,
461 Mich at 549-550. Thus, to the extent Auslander is based on the same misreading of
Scarsella that the Saffian Court committed, it is based on a misinterpretation of our
caselaw.

11
 By deviating from the accepted rule of requiring defendants to properly plead and

prove legal defects in a plaintiff’s filing, Auslander essentially elevates compliance with

statutory prerequisites to the echelon of “lack of jurisdiction,” a defense that is not

subject to the raise-or-waive rule. And in this respect, Auslander is in tension with our

decision 40 years ago that a similar notice-of-intent-to-sue requirement before filing suit

was not jurisdictional. See Lisee v Secretary of State, 388 Mich 32, 41-42; 199 NW2d

188 (1972). Indeed, the Court of Appeals has held that “[the] [p]laintiff’s failure in this

particular case to comply with the notice requirement [of § 2912b] before commencing

suit did not divest the circuit court of subject-matter jurisdiction.” Neal v Oakwood Hosp

Corp, 226 Mich App 701, 708; 575 NW2d 68 (1997).

There is a fundamental tension between Auslander and the established rules that

presuit notice requirements are not jurisdictional and that affirmative defenses must be

pleaded or they are waived. This tension must be resolved in favor of the established

rules, lest we invite the chaos that would ensue if Auslander’s rule were actually

followed. As the Court of Appeals in Saffian put it:

[T]o rule as defendant urges would create the opportunity for defendant to
knowingly foster the running of the limitations period by ignoring a lawsuit
and then simply bypass the default by attacking the affidavit of merit [or
timeliness of the complaint], depriving plaintiff of the legitimate
opportunity to cure a defect if attacked in an answer or affirmative defense.
A defendant would suffer no adverse consequences if a postdefault attack
on the affidavit [or complaint] were successful. In the meantime, a
plaintiff’s claim is laid to rest as the limitation period expires. [Saffian, 267
Mich App at 307.]

I would overrule Auslander as a wrongly decided, unnecessary incongruity in our

law. As far as stare decisis goes, if “not all precedents are built alike,” McCormick v

12
Carrier, 487 Mich 180, 277; 795 NW2d 517 (2010) (MARKMAN, J., dissenting), then

Auslander’s foundation is weaker than most. It was an order entered without the benefit

of briefing and argument; its reasoning consisted of adopting a short, unpublished

dissenting opinion of the Court of Appeals; and the proposition it announced was

unsupported by any citation of authority. Moreover, Auslander is a jurisprudential fish

out of water, incompatible with the legal environment within which it exists, including:

MCR 2.111(F)(3); MCR 2.603(A)(1); Neal, 226 Mich App at 708; Lisee, 388 Mich at 41-

42; Walters, 481 Mich at 389; Saffian, 477 Mich at 13. It is a testament to its practical

unworkability and lack of reliance interests that, despite Auslander’s purported

authorization, defendants continue to follow our court rules and statutes by filing answers

and affirmative defenses. See Robinson v Detroit, 462 Mich 439, 464; 613 NW2d 307

(2000) (stating that two relevant considerations under the doctrine of stare decisis are:

“whether the decision at issue defies ‘practical workability,’ [and] whether reliance

interests would work an undue hardship”). Furthermore, Auslander has been undermined

by a 2010 amendment of MCR 2.112(L)(2)(a), requiring that “all challenges to a notice

of intent to sue . . . be made by motion, filed pursuant to MCR 2.119, at the time the

defendant files its first response to the complaint, whether by answer or motion[.]” See

Robinson, 462 Mich at 464 (stating that another relevant consideration under the doctrine

of stare decisis is “whether changes in the law or facts no longer justify the questioned

decision”). A decision so contrary to the jurisprudential tide as Auslander can only hold

on so long before it gives way to the undertow. Today the Court missed an opportunity

to formally unmoor Auslander and give it the ceremonial burial at sea that it deserves.

13
 IV. CONCLUSION

In this case, I would craft a simple, yet symmetrical, rule of law: Plaintiffs will be

strictly held to the statutory waiting-period requirement; so too, defendants will be

required to put plaintiffs on notice of the factual basis of their affirmative defenses. In

other words, I would hold defendants to the same standard we hold plaintiffs: compliance

with their procedural obligations under our rules. Because I do not agree with the

majority’s decision to sidestep this issue, I respectfully dissent from Part III(B) of the

majority opinion. 9

David F. Viviano
Bridget M. McCormack
Richard H. Bernstein

9
Specifically, I join the majority opinion in full as it relates to Furr. I also agree that the
trial court correctly granted summary disposition in favor of Organ Procurement Agency.
However, as it relates to the Beaumont defendants, I would affirm the Court of Appeals
on alternative grounds and remand for further proceedings consistent with this opinion.

14