Michigan Supreme Court, 2019

James Wade v. William McCadie Do

Michigan Supreme Court · Decided May 10, 2019 · Viviano

926 N.W.2d 577 (North Western Reporter, Second Series)

Concurring Opinion

Viviano, J. (concurring).

I concur with the denial order because I believe the Court of Appeals reached the right result by upholding the trial court's grant of summary disposition in favor of defendants under Scarsella v. Pollak , 461 Mich. 547 , 549, 607 N.W.2d 711 (2000) (holding that an affidavit of merit (AOM) is necessary to toll the statute of limitations in a medical malpractice case). I write separately because I continue to question whether Scarsella was correctly decided. See Castro v. Goulet , 501 Mich. 884 , 889, 901 N.W.2d 614 (2017) ( VIVIANO , J., concurring) (stating my belief that under a plain reading of the statutory scheme, "the AOM has no effect on commencing a lawsuit for purposes of the statute of limitations"). Under my reading of the pertinent statutes, although dismissal may still be warranted under a different rule, it would not be warranted under MCR 2.116(C)(7) for failure to comply with the statute of limitations. 1 But since no party has asked us to reconsider Scarsella , 2 I concur with the Court's denial order in this case.

Whether dismissal would still be warranted for failing to file an affidavit of merit if Scarsella were overturned and, if so, on what grounds, are interesting questions that would need to be addressed in an appropriate future case.

In arguing that the Court of Appeals should have applied equitable tolling, plaintiff points to Ward v. Rooney-Gandy , 265 Mich. App. 515 , 696 N.W.2d 64 , rev'd 474 Mich. 917 , 705 N.W.2d 686 (2005), and Young v. Sellers , 254 Mich. App. 447 , 657 N.W.2d 555 (2002). These cases only call into question how Scarsella should be applied. Thus, plaintiff raises no argument as to whether Scarsella 's interpretation of the pertinent statutes is correct.

Opinion of the Court

On order of the Court, the motion to extend time is GRANTED. The application for leave to appeal the November 14, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

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