Order Michigan Supreme Court
Lansing, Michigan
February 1, 2008 Clifford W. Taylor,
Chief Justice
133208 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
ROBERTA HOPKINS, Personal Stephen J. Markman,
Representative of the Estate of Justices
Olive Herford, Deceased,
Plaintiff-Appellee,
v SC: 133208
COA: 261867
Genesee CC: 04-079449-NH
JAMES E. GRAHAM, JR., M.D.,
JAMES E. GRAHAM, JR., M.D., P.C.,
FARAH TAHER, M.D., and PHAN ANH
NGUYEN,
Defendants-Appellees,
and
HURLEY MEDICAL CENTER,
Defendant-Appellant.
_________________________________________/
By order of May 30, 2007, the application for leave to appeal the April 20, 2006
judgment of the Court of Appeals was held in abeyance pending the decision in Mullins v
St Joseph Mercy Hosp (Docket No. 131879). On order of the Court, the case having been
decided on November 28, 2007, 480 Mich ___ (2007), the application is again considered
and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REVERSE the
judgment of the Court of Appeals because the court erred in invoking the doctrine of
equitable tolling under these circumstances. Devillers v Auto Club Ins Ass’n, 473 Mich
562, 586-587 n 65 (2005). However, because the plaintiff falls within the class of
plaintiffs entitled to relief identified in our order in Mullins, supra, we REMAND this
case to the Genesee Circuit Court for entry of an order denying the defendant’s motion
for summary disposition and for further proceedings not inconsistent with this order and
the order in Mullins.
CAVANAGH and WEAVER, JJ., concur in the result.
2
KELLY, J., concurs and states as follows:
I concur with the conclusion that our decision in Waltz v Wyse1 does not bar
plaintiff’s claim. But, as explained in my statement in Mazumder v Univ of Michigan Bd
of Regents,2 given the state of the law when the Court of Appeals rendered its decision,
resort to the doctrine of equitable tolling was highly appropriate.
1
Waltz v Wyse, 469 Mich 642 (2004).
2
Mazumder v Univ of Michigan Bd of Regents, ___ Mich ___ (2008).
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.
February 1, 2008 _________________________________________
l0129 Clerk