Kenneth Morrissette v. John Doe
331941
| Mich. Ct. App. | Jul 18, 2017Background
- Plaintiff Kenneth Morrissette was injured in a hit-and-run and sued John Doe and his insurer State Farm for no-fault and uninsured motorist benefits; discovery focused on the reasonableness/necessity of medical treatment.
- State Farm sought depositions of non‑party attorneys/representatives (Lawrence Falzon and a Legal Genius representative identified as “Clem”/Clem Barney) based on plaintiff’s testimony that he was solicited and steered to Dr. Lutwin.
- Judge Popke ordered Falzon’s deposition (finding solicitation/referral relevant) and required a deposition of Dr. Lutwin; Falzon unsuccessfully sought appellate relief.
- While Falzon’s leave application was pending, Judge Popke’s entire civil docket was reassigned to Judge Susan Hubbard, who reviewed the case and concluded Falzon’s and Barney’s depositions were not relevant, granting motions to quash.
- State Farm appealed, arguing MCR 2.613(B) bars a coequal successor judge from setting aside another judge’s order unless the original judge is absent or unable to act; the circuit court and the Court of Appeals considered whether reassignment rendered Judge Popke effectively absent/unable to act.
- The Court of Appeals affirmed: a successor judge vested with the reassigned docket may revisit and reverse interlocutory orders of the prior judge while the case remains pending, and there was no evidence of judge‑shopping here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a successor judge may set aside a predecessor judge’s interlocutory order after reassignment | Falzon: successor may reconsider under ordinary reconsideration principles (MCR 2.119/F and MCR 2.604) because case still pending | State Farm: MCR 2.613(B) prohibits a coequal judge from vacating another judge’s order unless the original judge is absent or unable to act; no finding of absence here | Court: Successor judge with the reassigned docket has authority to revisit/reverse interlocutory orders while case pending; reassignment rendered predecessor effectively absent/unable to act in practice |
| Whether Judge Hubbard abused discretion in quashing Falzon’s and Barney’s depositions as irrelevant | Falzon/Barney: their depositions were not relevant to plaintiff’s no‑fault claims; privilege and scope limits apply | State Farm: testimony about solicitation/referral is relevant to reasonableness/necessity of treatment and likely to lead to admissible evidence | Court: Declined to decide correctness of relevance ruling now; found authority to make the ruling; State Farm may later challenge the substantive ruling on appeal |
| Whether oral bench comments by Judge Popke created binding rights re: Clem/Barney | Non‑parties: Popke’s bench remark did not constitute a written order obligating future rulings | State Farm: argued Popke had found identity/relevance and successor should not reverse | Court: Oral remarks are not orders; no written Popke order regarding Barney existed, so Hubbard’s order was permissible |
| Whether reassignment here suggests improper judge shopping or requires remand to original judge | Non‑parties: reassignment was administrative; no party-driven judge shopping | State Farm: implied reassignment does not automatically authorize reversal | Court: Reassignment without party input and transfer of Popke’s entire civil docket indicates predecessor was effectively unable to act; no judge shopping found |
Key Cases Cited
- Colista v. Thomas, 241 Mich. App. 529 (trial-court rule interpretation is reviewed de novo)
- Hill v. City of Warren, 276 Mich. App. 299 (trial court may revisit interlocutory orders while case pending)
- Dutton Partners, LLC v. CMS Energy Corp., 290 Mich. App. 635 (successor judge has authority equivalent to original judge over reassigned matters)
- Kokx v. Bylenga, 241 Mich. App. 655 (reconsideration standards; abuse-of-discretion review)
- Mikedis v. Perfection Heat Treating Co., 180 Mich. App. 189 (successor judge may set aside interlocutory order when no final judgment entered)
- Wilson v. Romeos, 387 Mich. 664 (limitation where successor set aside predecessor order absent explanation; remand to original judge was appropriate)
- Sarkar v. Doe, 318 Mich. App. 156 (Michigan policy favors broad discovery)
- Morrissette v. Doe, 498 Mich. 875 (Michigan Supreme Court denial of leave to appeal from Popke’s order)