A party “expressly waived its right to arbitration when it stipulated [in a case management order] that the arbitration provision [in the parties’ agreement] did not apply[]” to the dispute; because “[t]he language of the stipulation showed knowledge of an arbitration provision and a clear expression of intent not to pursue arbitration[,] . . . the trial court erred when it determined that [the] statement was not an express waiver[.]” Nexteer Auto Corp v Mando America Corp, ___ Mich App ___, ___ (2016). Furthermore, because “there [was] an express [(rather than implied)] waiver, the party seeking to enforce the waiver [was not required to] show prejudice.” Id. at ___ (citation omitted; emphasis added).
Application of MCL 600.2955 Factors. “[A]ll the factors in MCL 600.2955 may not be relevant in every case.” Elher v Misra, ___ Mich ___, ___ (2016), rev’g 308 Mich App 276 (2014) (holding that “the scientific testing and replication factor[, MCL 600.2955(1)(a), did] not fit the type of [standard-of-care] opinion at issue in [the] case[,]” and that although “the circuit court abused its discretion by relying on this factor[,] . . . this [did] not render the circuit court’s ultimate decision [to exclude an expert’s opinion testimony] an abuse of discretion[]”).
Degree of General Acceptance of Opinion Within Expert Community. “The circuit court . . . did not abuse its discretion by relying on the lack of evidence regarding the degree to which [a medical expert]’s opinion was generally accepted[,]” MCL 600.2955(1)(e), in determining that the expert’s opinion was unreliable. Elher v Misra, ___ Mich ___, ___ (2016), rev’g 308 Mich App 276 (2014). “This was a relevant factor for the circuit court to consider[]” where “there was no evidence regarding whether [the expert]’s view had general acceptance within the relevant expert community[;]” although “articles submitted by [the] defendants may have suggested that ‘purists’ in the field agreed with [the expert], there was . . . no indication regarding the degree of acceptance of his opinion[,]” and the expert “admitted that he knew of no one that shared his opinion.” Elher, ___ Mich at ___ (emphasis added).
Exclusion of Expert Opinion Testimony Under MRE 702. “[T]he circuit court did not abuse its discretion by concluding that [a medical expert]’s background and experience were not sufficient to render his opinion reliable,” and in excluding the expert’s testimony under MRE 702, “when [the expert] admitted that his opinion [that the defendant physician breached the standard of care] was based on [the expert’s] own beliefs, there was no evidence that his opinion was generally accepted within the relevant expert community, there was no peer-reviewed medical literature supporting his opinion, [the] plaintiff failed to provide any other support for [the expert]’s opinion, and [the] defendants submitted contradictory peer-reviewed literature.” Elher v Misra, ___ Mich ___, ___ (2016), rev’g 308 Mich App 276 (2014) (noting that “[w]hile peer-reviewed, published literature is not always necessary or sufficient to meet the requirements of MRE 702, the lack of supporting literature, combined with the lack of any other form of support, rendered [the expert]’s opinion unreliable and inadmissible under MRE 702[]”) (citations omitted).
Peer-Reviewed Publications. The circuit court did not abuse its discretion in concluding that there was “no evidence that [a medical expert]’s opinion and its basis were the subject of peer-reviewed publication,” MCL 600.2955(1)(b), in determining that the expert’s opinion was unreliable; because “there was no peer-reviewed medical literature supporting [the expert’s] opinion[] . . . and [the] defendant submitted contradictory, peer-reviewed medical literature,” “the Court of Appeals erred by concluding that the issue . . . was not studied in peer-reviewed articles and, therefore, that the circuit court abused its discretion when it relied on this factor.” Elher v Misra, ___ Mich ___, ___ (2016), rev’g 308 Mich App 276 (2014).
Judicial Taking. “[T]he trial court order requiring [the] defendant to cease all actions on his wetland property that violated Part 303 [of NREPA] . . . did not constitute a taking[;]” “[the] defendant should have been aware of Part 303, which was in effect for 14 years before he purchased the property[,] . . . and there [was] no evidence that [the] defendant was singled out to bear the burden of the public’s interest in wetlands.” Dep’t of Environmental Quality v Morley, ___ Mich App ___, ___ (2016) (additionally noting that “there was no evidence placed on the record that with the injunction there was no economically viable use of the property,” and that the defendant had been notified of the presence of regulated wetlands on his property) (citations omitted).
Right to a Jury Trial. “Because there is no historical right to a jury trial in Michigan when the relief sought is equitable in nature[,]” and “[b]ecause wetland protection is not a cause of action known to the common law, but is instead a new cause of action created by statute, there is no constitutional right to a jury trial[ in an equitable action to restrain a violation of Part 303 of NREPA], even though the statute also provides for monetary damages[.]” Dep’t of Environmental Quality v Morley, ___ Mich App ___, ___ (2016) (noting that because “the [Department of Environmental Quality] only filed a civil action against [the] defendant[ and] did not seek to criminally prosecute him[,] . . . it [was] irrelevant that [Part 303 also] provides for criminal liability[,]” and rejecting “[the] defendant’s argument that federal law governs whether a defendant is entitled to a jury trial, rather than state law[]”) (citations omitted).
Generally. “[I]f a [medical] service falls within PIP coverage under MCL 500.3107, but is ‘[a] practice of chiropractic service’ under MCL 500.3107b(b), reimbursement is only required under the no-fault act if the service was included in the definition of ‘practice of chiropractic’ under MCL 333.16401 as that statute existed on January 1, 2009.” Measel v Auto Club Group Ins Co, ___ Mich App ___, ___ (2016). Additionally, “a service is only ‘[a] practice of chiropractic service’ for purposes of MCL 500.3107b(b) if that service falls under the current definition of ‘practice of chiropractic’ provided by MCL 333.16401.” Measel, ___ Mich App at ___ (holding that where “services [rendered to the insured in a chiropractor’s clinic were] within PIP coverage under MCL 500.3107 because . . . [they] were lawfully rendered and reasonably necessary for [the insured]’s care[,]” but each service “was ‘[a] practice of chiropractic service’ [within the current definition under MCL 333.16401] that did not fall within the definition of ‘practice of chiropractic’ under MCL 333.16401 as that statute existed on January 1, 2009, MCL 500.3107b(b) provide[d] that reimbursement for the services was not required under Michigan’s no-fault act[]”) (emphasis added).
Licensee’s Delegation of Tasks. “MCL 333.16215(1) permits a licensee to delegate tasks to another qualified individual[;]” accordingly, where “massage therapists and ultrasound technicians were employed by [a chiropractor] and . . . regularly assisted her with patient care[, and the chiropractor] . . . supervised their work, directed their treatment protocols, and instructed them on how to perform the necessary treatment[,] . . . the mere fact that [the chiropractor] did not perform each of the disputed services herself [did] not bring the ultrasound and massage therapy outside the definition of ‘practice of chiropractic’ under MCL 333.16401.” Measel v Auto Club Group Ins Co, ___ Mich App ___, ___ (2016) (rejecting the insured’s contention that “the ultrasound and massage therapy [she received] were not chiropractic services”).
New Patient Examination. Although a new patient examination “fell within the current definition of ‘practice of chiropractic’ under . . . MCL 333.16401(1)(e)(ii)(A)[,]” the “examination exceeded the scope of the definition of ‘practice of chiropractic’ under MCL 333.16401 as it existed on January 1, 2009,” and were therefore not reimbursable under MCL 500.3107b(b), because the chiropractor did not “limit[] her examination to the spinal source of any subluxations or misalignments.” Measel v Auto Club Group Ins Co, ___ Mich App ___, ___ (2016) (noting that, under caselaw construing “the former definition of ‘practice of chiropractic[]’” under MCL 333.16401, “orthopedic and neurological examination of non-spinal areas fell outside the scope of chiropractic practice”) (citations omitted; emphasis added).
Ultrasound and Massage Therapy. Although ultrasound and massage therapy services “fell within the current definition of ‘practice of chiropractic’ under . . . MCL 333.16401(1)(e)(iv)” as interpreted by the Michigan Department of Community Health in a 2010 letter to chiropractic licensees, these services “did not fall within the definition of ‘practice of chiropractic’ under MCL 333.16401 as that statute existed on January 1, 2009,” and were therefore not reimbursable under MCL 500.3107b(b). Measel v Auto Club Group Ins Co, ___ Mich App ___, ___ (2016) (noting that, under caselaw construing “the former definition of ‘practice of chiropractic[]’” under MCL 333.16401, the use of ultrasound devices was held to have been “‘outside the scope of chiropractic,’” and massages were likewise outside the scope of chiropractic “because they involved treatment to areas other than [the] spine[]”) (citations omitted; emphasis added).
Effective February 14, 2016, 2015 PA 190 amended MCL 211.78f and MCL 211.78i of the General Property Tax Act to, among other things, permit a county treasurer and foreclosing governmental unit to provide notice pertaining to delinquent taxes and the foreclosure of tax-delinquent property within a “notice publication” and on a website.
Effective February 16, 2016, 2016 PA 15 amended the Revised Judicature Act by adding MCL 600.6094a to provide that “[a] judgment entered against a governmental entity under [MCL 600.6093 or MCL 600.6094] that is assessed and collected as a tax under [MCL 600.6093 or MCL 600.6094], and any specific local tax attributable to the judgment, must not be attributed or transmitted to or retained or captured by any other governmental entity for any other purpose.” The act “applies retroactively to all judgments entered after May 6, 2015.” 2016 PA 15, enacting section 1.