Order Michigan Supreme Court
Lansing, Michigan
January 8, 2010 Marilyn Kelly,
Chief Justice
138724 & (30) Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
ERIC KORPAL and MARY KORPAL, Stephen J. Markman
Plaintiffs-Appellants, Diane M. Hathaway,
Justices
v SC: 138724
COA: 290077
Saginaw CC: 03-049832-NH
SAMUEL J. SHAHEEN, M.D. and
MIDWESTERN SURGICAL ASSOCIATES,
P.C.,
Defendants,
and
STEPHEN A. MESSANA, D.O., SCOTT
CHENEY, M.D., ADVANCED DIAGNOSTIC
IMAGING, P.C., and COVENANT
HEALTHCARE,
Defendants-Appellees.
_________________________________________/
By order of June 18, 2009, this Court granted immediate consideration and
ordered a stay of trial court proceedings. On order of the Court, the application for leave
to appeal the March 12, 2009 order of the Court of Appeals is considered and, pursuant to
MCR 7.302(H)(1), in lieu of granting leave to appeal, we VACATE the order of the
Court of Appeals and the orders of the Saginaw Circuit Court granting the defendants’
motions for summary disposition in part, and we REMAND this case to the Saginaw
Circuit Court for reconsideration of the defendants’ motions in light of this Court’s
decisions in Bush v Shabahang, 484 Mich 156 (2009), and Potter v McLeary, 484 Mich
397 (2009). The stay of trial court proceedings is DISSOLVED. The motion for leave to
file supplemental authority is GRANTED.
CORRIGAN, J. (dissenting).
I dissent from the order vacating the Court of Appeals judgment and remanding
this medical malpractice case to the trial court. Plaintiffs’ application for leave to appeal
is an illegitimate second request for reconsideration contrary to both the law of the case
doctrine and our rules of appellate procedure. Accordingly, I would deny plaintiffs’
application.
2
During January 2002, defendants allegedly failed to timely diagnose and treat an
intestinal leak that resulted from post-operative complications. About one year later, on
January 9, 2003, plaintiffs’ counsel sent a notice of intent to file suit to each defendant.
On September 25, 2003, plaintiffs filed their complaint, which included certain
allegations about chest x-rays. Because neither the notice of intent nor the affidavit of
merit contained any allegations regarding defendants’ interpretation or handling of chest
x-rays, defendants filed related motions for partial summary disposition concerning these
claims. The trial court subsequently denied those motions.
On leave granted to defendants, the Court of Appeals reversed the trial court and
remanded for entry of an order granting partial summary disposition in favor of
defendants.1 Plaintiffs’ application for leave to appeal in this Court was denied.2 Chief
Justice Kelly, Justice Cavanagh, and Justice Weaver were shown as favoring reversing
“the portion of the judgment of the Court of Appeals that dismissed the plaintiffs’
additional claims regarding the chest x-rays with prejudice, because the dismissal should
have been without prejudice.”3 The Court later denied plaintiffs’ motion for
reconsideration. Chief Justice Kelly, Justice Cavanagh, and Justice Weaver would have
granted the motion.4
Soon thereafter, the case returned to the trial court. The trial court granted
defendants’ motions for partial summary disposition and dismissed all claims concerning
defendants’ interpretation or handling of chest x-rays with prejudice.5 Plaintiffs then
unsuccessfully sought leave to appeal in the Court of Appeals.6 Before trial could begin
as scheduled on July 21, 2009, more than seven years after the alleged malpractice
occurred, plaintiffs’ counsel again applied for leave to appeal in this Court. Plaintiffs
raised the identical issues that the Court of Appeals had previously resolved regarding
whether the dismissal of plaintiffs’ claims related to the chest x-rays should be with or
1
Korpal v Shaheen, unpublished opinion per curiam of the Court of Appeals, issued
December 28, 2006 (Docket No. 266418).
2
480 Mich 1193 (2008).
3
Id (emphasis in original).
4
482 Mich 898 (2008).
5
Korpal v Shaheen, unpublished opinion and order of the Saginaw Circuit Court, issued
January 7, 2009 (Docket No. 03-049832-NH-2).
6
Korpal v Shaheen, unpublished order of the Court of Appeals, entered March 12, 2009
(Docket No. 290077).
3
without prejudice. This Court stayed the trial court proceedings pending consideration of
the application.7
As an initial matter, the trial court did not err in dismissing all claims concerning
defendants’ interpretation of chest x-rays with prejudice, and the Court of Appeals did
not err in subsequently denying plaintiff’s application for leave. Instead, both courts
acted in accordance with the law of the case doctrine. “Under the law of the case
doctrine, ‘if an appellate court has passed on a legal question and remanded the case for
further proceedings, the legal questions thus determined by the appellate court will not be
differently determined on a subsequent appeal in the same case where the facts remain
materially the same.’”8 Under identical facts, the Court of Appeals analyzed the precise
legal question raised in plaintiffs’ current application. The Court concluded that
dismissal of all chest x-ray claims were to be with prejudice and remanded for further
proceedings. Because the Court of Appeals already had resolved this exact issue under
identical facts in 2006, the trial court was bound by that decision.9 Similarly, the Court
of Appeals panel assigned to review plaintiff’s application for leave to appeal after the
trial court entered the orders on remand was also bound by the prior decision of the Court
of Appeals under the law of the case doctrine.10
Assuming arguendo that the Court of Appeals erred in concluding that dismissal
of all plaintiffs’ claims related to the chest x-rays was to be with prejudice, the error
would not negate the application of the law of the case doctrine. “[T]he law of the case
doctrine applies without regard to the correctness of the prior determination, so that a
conclusion that a prior appellate decision was erroneous is not sufficient in itself to justify
ignoring the law of the case doctrine.”11 Here there has been no subsequent change in the
law or material change in the underlying facts which would justify failing to apply the
law of the case doctrine. Instead, plaintiffs’ counsel apparently relies on a change in the
composition of the Court as a viable basis for relitigating the same legal issue with the
hopes of receiving a more favorable result. By its order vacating the Court of Appeals
7
Korpal v Shaheen, order of the Supreme Court, entered June 18, 2009 (Docket No.
138724).
8
Grievance Administrator v Lopatin, 462 Mich 235, 259-260 (2000), quoting CAF
Investment Co v Saginaw Twp, 410 Mich 428, 454 (1981).
9
See Grievance Administrator, supra at 260 (“[A]s a general rule, an appellate court's
determination of an issue in a case binds lower tribunals on remand and the appellate
court in subsequent appeals.”); see also Sumner v General Motors Corp, 245 Mich App
653, 662 (2001) (“[T]he trial court ‘may not take any action on remand that is
inconsistent with the judgment of the appellate court.’”).
10
Higgins Lake Property Owners Ass’n v Gerrish Twp, 255 Mich App 83, 91 (2003).
11
Grace v Grace, 253 Mich App 357, 363 (2002).
4
and remanding this case to the trial court, the Court rewards this regrettable display of
gamesmanship by plaintiffs’ counsel. In contrast, both the trial court and the second
Court of Appeals panel correctly applied the law of the case doctrine, which “exists
primarily to ‘maintain consistency and avoid reconsideration of matters once decided
during the course of a single continuing lawsuit.’”12
Additionally, plaintiffs’ application ignores our well-established rules of appellate
procedure. Under MCR 7.313(E), “[t]o move for reconsideration of a Court order, a
party must file the items required … within 21 days after the date of certification of the
order. The clerk shall refuse to accept for filing any motion for reconsideration of an
order denying a motion for reconsideration.”13 Essentially, plaintiffs’ counsel has filed
an untimely second request for reconsideration because plaintiffs’ current application
attempts to relitigate the same issues previously analyzed and resolved in defendants’
favor by the Court of Appeals. Indeed, plaintiffs’ current application sets forth identical
issues concerning which this Court has already denied leave to appeal and
reconsideration in the first instance. Insofar as plaintiffs’ counsel filed this application
with the expectation that plaintiffs could reap the benefits of subsequent changes in the
law, I strongly protest such acts of appellate gamesmanship. This Court wrongly rewards
plaintiffs’ efforts to circumvent our rules of appellate procedure.
Because the order vacating the Court of Appeals judgment and remanding this
case to the trial court flouts the law of the case doctrine and our rules of appellate
procedure, I would deny plaintiffs’ application for leave to appeal.
12
Locricchio v Evening News Ass’n, 438 Mich 84, 109 (1991), quoting 18 Wright, Miller
& Cooper, Federal Practice & Procedure, § 4478, p. 788.
13
Subchapter 7.200 of the Michigan Court Rules of 1985 includes an analogous
provision governing motions for reconsideration filed in the Court of Appeals. See MCR
7.215(I)(3) (“The clerk will not accept for filing a motion for reconsideration of an order
denying a motion for reconsideration.”).
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
January 8, 2010 _________________________________________
d0105 Clerk