|
Liability |
|
Joint and
Several |
|
Economic
Damages |
Abolished |
Joint liability has been
abolished, except in medical malpractice cases or
criminal conduct involving gross negligence or the
use of drugs or alcohol.
Mich. Comp. Laws
§§ 600.2957, 600.6304(4),
600.6312.
|
|
Non-Economic
Damages |
Abolished |
See
above.
|
|
May a
Jury Allocate Fault Among All Persons Contributing
to an Injury? |
Yes
|
Mich. Comp. Laws §§
600.2957, 600.6304.
|
|
Market
Share Liability |
No |
In Abel v. Eli Lilly
& Co., 343 N.W.2d 164 (Mich. 1984), the
Michigan Supreme Court ruled that DES plaintiffs
could recover under a concerted action or
alternative liability theory, without the need for
creation of market share
liability.
|
|
Defenses |
|
Comparative
Negligence |
Yes |
If a
plaintiff’s percentage of fault is greater than
the aggregate fault of the other person or
persons, whether or not parties to the action,
economic damages are reduced by the percentage of
comparative fault, but the plaintiff is not
permitted to receive noneconomic
damages.
Mich. Comp. Laws §
600.2959. |
|
Assumption
of Risk |
No |
Michigan Supreme Court
distinguishes between primary assumption of risk,
which involves a situation in which the defendant
does not owe a duty of care to the plaintiff
because the plaintiff agreed in advance to relieve
the defendant of a duty of care, and secondary
assumption of risk, which involves a situation in
which the plaintiff voluntarily encounters a known
risk without first manifesting assent to relieve
the defendant of liability. Only primary
assumption of risk remains a viable affirmative
defense.
Kreski v. Modern
Wholesale Elec. Supply Co., 415 N.W.2d 178
(Mich. 1987); Felgner v. Anderson, 133
N.W.2d 136 (Mich. 1965); see also Hunley v.
DuPont Auto., 341 F.3d 491 (6th
Cir. 2003) (applying Michigan
law).
|
|
Product
Misuse |
Yes |
A plaintiff may not
recover if the proximate cause of his or her
injury stems from his or her own conduct, such as
unforeseen misuse of a
product.
Mich. Comp. Laws §
600.2947(2); see also Wells v. Coulter Sales,
Inc., 306 N.W.2d 411 (Mich. App. Ct.
1981). |
|
Compliance
With Government Standards |
Yes |
Compliance with government
safety regulations (state or federal)
creates a rebuttable presumption that a product is
not defective. Noncompliance with a standard
does not raise a presumption of negligence on the
part of a manufacturer or seller.
Mich. Comp. Laws
§ 600.2946(4); see
also Mutual Ins. Co. of Am. v. Royal Appliance
Mfg. Co., 112 Fed. Appx. 386, 2004 WL
1858852 (6th Cir., Aug. 17, 2004).
In a product liability
action against a manufacturer or seller of an
FDA-approved prescription drug, the manufacturer
or seller is not liable, if the drug was approved
by the FDA, and the drug and its labeling were in
compliance with the FDA's approval at the time the
drug left the control of the manufacturer or
seller. A prescription drug manufacturer or
seller may still be liable if (1) the drug at
issue was sold after an FDA recall or withdrawal
of approval; (2) the defendant intentionally
withheld or misrepresented information to the FDA
and the drug would not have been approved or the
approval withdrawn if the FDA had the information;
or (3) the defendant made an illegal payment to an
official or employee of the FDA to securing or
maintaining approval of the drug.
Mich. Comp. Laws §
600.2946(4), (5); see also Garcia v.
Wyeth-Ayerst Labs., 385 F.3d 961 (6th Cir.
2004); Taylor v. SmithKline Beecham Corp.,
658 N.W.2d 127 (Mich. 2003); Zammit v. Shire
US, Inc., 415 F. Supp. 2d 760 (E.D. Mich.
2006).
|
|
Statute
of Repose |
Yes |
In the case of a product
that has been in use for not less than 10 years,
the plaintiff, in proving a prima facie case,
shall be required to do so without benefit of any
presumption.
Mich. Comp. Laws
§ 600.5805(13).
|
|
Government
Contractor Defense |
Uncertain |
|
|
McLawsuits
Permitted?
Can a food manufacturer,
distributor, seller, or retailer be sued based on
an individual's weight gain, obesity, or
obesity-related health
condition? |
No |
Mich. Comp. Law §
600.2974. |
|
Compensatory
Damages |
|
Is there a statutory limit
on economic damages? |
No |
|
|
Is there a statutory limit
on non-economic damages? |
Yes |
In an action for product
liability, the total noneconomic damages shall not
exceed $280,000, adjusted annually for
inflation, unless the defect in the
product caused either the person's death or
permanent loss of a vital bodily function, in
which case the total amount of damages for
noneconomic loss shall not exceed
$500,000.
Mich. Comp. Laws §
600.2946a; Wessels v. Garden Way, Inc., 689
N.W.2d 526 (Mich. 2004) (upholding statute as
constitutional).
In a medical liability
action, total noneconomic damages recoverable by
all plaintiffs against all defendants are limited
to $280,000, adjusted annually for inflation,
except in cases where the plaintiff is hemiplegic,
paraplegic, or quadriplegic due to an injury to
the brain or spinal cord, or where the plaintiff
has permanently impaired cognitive capacity, or
the plaintiff has had a permanent loss of or
damage to a reproductive organ, then noneconomic
damages shall not exceed $500,000.
Mich. Comp. Laws §
600.1483; Zdrojewski v. Murphy, 657
N.W.2d 721 (Mich. App. 2002) (declaring cap
constitutional) (disagreed with by Wiley v.
Henry Ford Cottage Hosp., 668 N.W.2d 402
(Mich. Ct App. 2003), appeal denied,
678 N.W.2d 439 (Mich. 2004)); Jenkins v.
Patel, 688 N.W.2d 543 (Mich. Ct. App.
2004); Smith v. Botsford Gen. Hosp.,
419 F.3d 513 (6th Cir. 2005), cert. denied,
547 US. 1111 (2006).
|
|
Is recovery for
medical monitoring permitted without physical
injury? |
No |
Henry v. Dow Chem.
Co., 701 N.W.2d 684 (Mich.
2005). |
|
Punitive Damages |
|
Is there a statutory
limit? |
N/A, punitive damages are
not permitted |
Gregory v. Cincinnati
Inc., 538 N.W.2d 325 (Mich. 1995) (punitive
damages not permitted).
Michigan permits
“exemplary” damages as compensation for mental
suffering consisting of a sense of insult,
indignity, humiliation, or injury to feelings, but
does not permit punitive damages for purposes of
punishment.
Yamaha Motor Corp. v.
Tri-City Motors, 429 N.W.2d 871 (Mich. Ct.
App. 1988).
|
|
Is there any restriction
on imposing
multiple punitive damage awards for same
conduct? |
N/A |
|
|
Does the state receive a
portion of the punitive damage
award? |
N/A |
|
|
What standard is
used? |
N/A |
|
|
Procedures |
|
Venue |
|
|
|
Conducive to Abuse
-
Does the statute permit forum
shopping? |
No |
(a) In tort, personal
injury, property damage, or wrongful death cases
-- in the county in which the original injury
occurred and in which either (1) The defendant
resides, has a place of business, or conducts
business; or (2) the corporate registered
office of a defendant is
located.
(b) If a county does not
satisfy the criteria above, venue is proper in the
county in which the original injury occurred and
(1) the plaintiff resides, has a place of
business, or conducts business; or (2) The
corporate registered office of a plaintiff is
located.
If a county does not
satisfy the criteria under (a) or (b) venue is
proper in a county in which both (1) the plaintiff
resides, has a place of business, or conducts
business, or has its corporate registered office
located, and (2) the defendant resides, has a
place of business, or conducts business, or has
its corporate registered office
located.
If a county does not
satisfy any of the above criteria, an action may
be brought where the injury occurred or one of the
parties resides.
Any party may file a
motion to change venue based on hardship or
inconvenience.
For venue purposes, in a
product liability action, a defendant is
considered to conduct business in a county in
which the defendant's product is sold at
retail.
Mich. Comp. Laws
§ 600.1629.
|
|
Class
Actions |
|
|
|
Is there a right to an
immediate appeal of class
certification? |
Uncertain |
|
|
Appeal
Bonds |
|
|
|
Does the amount of the
required bond place undue pressure on the
defendant to settle rather than
appeal? |
No |
In any civil action, an
appeal bond may not exceed $25 million regardless
of the amount of the judgment.
Mich. Comp.
Laws §
600.2607. |
|
Evidence |
|
Has the state adopted
Daubert, which requires the judge to
act as a "gatekeeper" against unreliable expert
testimony in civil actions? |
Yes |
A court is required by
statute to consider
Daubert-like factors when considering
whether a scientific opinion is reliable and will
assist the trier of fact. Mich. Comp. Laws §
600.2955.
The Michigan Supreme Court
adopted Daubert in Gilbert v. Chrysler LLC
Corp., 685 N.W.2d 391 (Mich.
2004), cert. denied, 546 U.S. 821 (2005). |
|
Private Lawsuits Under Consumer
Protection Statutes |
|
Must each individual
plaintiff show that he or she relied on the
allegedly unfair or deceptive practice at
issue? |
No, there is an objective
reasonable reliance standard; causation is
required |
Loss caused by
violation; reasonable person would have relied
upon misrepresentations
Dix v. American Bankers
Assurance Co., 415 N.W.2d 206 (Mich. 1987);
Mich. Comp.
Laws
§ 445.911(2). |
|
What is the level of
scienter (intent) required of a
defendant? |
Intent to
deceive |
Dix v. American Bankers
Assurance Co., 415 N.W.2d 206 (Mich.
1987). |
|
Are class actions
permitted? |
Yes |
Mich. Comp. Laws §
445.911(3). |
|
Are statutory damages (an
amount set by statute) provided for even if a
plaintiff cannot show an actual economic
injury? |
Yes |
Plaintiff may obtain
the greater of actual damages or $250; reasonable
attorney’s fees. Only actual damages are
recoverable in class actions. Plaintiffs are
also limited to actual damages in all cases if the
defendant shows a bona fide
error.
Mich. Comp. Laws §
445.911(1), (2), (6).
|
|
Does the plaintiff
automatically receive treble (triple) damages
regardless of the intent of the
defendant? |
No |
|
|
Does every prevailing
plaintiff receive attorneys' fees and
costs? |
Yes* |
*The statute does not
include class action plaintiffs.
Mich. Comp. Laws §
445.911(2). |
|
Is conduct authorized by
or in compliance with a state or federal statute
or regulation exempt from the
act? |
Yes
|
“This act does not
apply to either of the following: (a) A
transaction or conduct specifically authorized
under laws administered by a regulatory board or
officer acting under statutory authority of this
state or the United States.”
Mich. Comp. Laws §
445.904(1)(a).
|
|
Jury Service |
|
Automatic exemptions and
disqualifications based on occupation
eliminated? |
Yes |
|
|
Are the grounds for
obtaining an excuse from service closely
defined? |
No |
The court may excuse a
juror “when it appears that the interests of the
public or of the individual juror will be
materially injured by his attendance or the health
of the juror or that of his family requires his
absence.”
Mich. Comp. Laws §§
600.1320(2),
600.1335.
|
|
May jurors automatically
postpone and reschedule
service? |
No |
A juror may apply to
the presiding judge for a postponement and provide
a reason justifying a change in
date.
Mich. Comp. Laws §
600.1333. |
|
Is a juror's employment
and leave time adequately protected during
service? |
Yes |
An employer may not
discharge or discipline an employee who takes time
off for jury service. An employer may not
require an employee who is appearing for jury duty
to work any number of hours which, if added to the
number of hours the person spends on jury duty
during that day, exceeds the number of hours
normally and customarily worked by the person
during the day, or the usual quitting time, unless
voluntarily agreed to by the employee or provided
for in a collective bargaining
agreement.
Mich. Comp. Laws §
600.1348.
|
|
Is there a limit on the
frequency of jury service? |
Yes |
Citizens may be called as
often as once every year.
Mich. Comp. Laws §
600.1307a(d). |
|
Is the length of service
limited to no more than one day or one
trial? |
In some
courts |
Any court may adopt a
term of service by which a juror would spend only
one day in court unless he or she is selected to
serve on a jury
panel.
Mich. Comp. Laws §§
600.1343, 600.1371.
Some Michigan courts,
however, retain a significantly longer term of
service. For example, the courts in Ingram
and Washtenaw Counties require that jurors be
available for the greater of one week or one
trial.
|
|
Juror per
diem |
$25 per day and $12.50
per half day for first day of
service |
Mich. Comp. Laws §
600.1344. |
|
Is additional compensation
available on lengthy trials? |
Yes, slight
increase |
Jurors receive $40 per
day and $20 per half day on the second day of jury
service and thereafter.
Mich. Comp. Laws §
600.1344.
|
|
Is the potential penalty
for nonappearance sufficient to encourage
participation? |
Yes |
A summoned juror who
fails to appear for jury service may be held in
contempt of court and fined not more than $7,500
or imprisoned until the person performs jury
service, or both, in the discretion of the
court.
Mich. Comp. Laws §§
600.1346, 600.1715.
|
|
Problem
Jurisdictions |
|
None
reported |
|
|
