788 N.W.2d 664 | Mich. | 2010
Kevin KROHN, Plaintiff-Appellant,
v.
HOME-OWNERS INSURANCE COMPANY, Defendant-Appellee.
Supreme Court of Michigan.
Order
On order of the Court, the application for leave to appeal the January 26, 2010 judgment of the Court of Appeals is considered, and it is GRANTED. The parties shall include among the issues to be briefed: (1) whether the experimental surgical procedure that the plaintiff underwent in Portugal was a "reasonably necessary" allowable expense under the no-fault act, MCL 500.3107(1)(a); (2) whether the procedure was "lawfully rendered" under MCL 500.3157, given that it is not approved to be performed in this country by the United States Food and Drug Administration (FDA); (3) whether the Court of Appeals erred in sua sponte raising the issue whether the trial court failed to perform its gatekeeper function under MRE 702 and People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1955); Frye v. United States, 54 App DC 46, 293 F. 1013 (1923), to exclude testimony from the plaintiffs medical witness regarding the experimental surgical procedure, see Craig v. Oakwood Hosp., 471 Mich. 67, 82, 684 N.W.2d 296 (2004); (4) whether the Court of Appeals properly relied on SPECT Imaging, Inc. v. Allstate Ins. Co., 246 Mich.App. 568, 578-579, 633 N.W.2d 461 (2001), for the proposition that a no-fault insurer is only liable for scientifically proven medical tests or procedures; and (5) whether the issue of reasonable necessity under MCL 500.3107(1)(a) may include consideration by the trier of fact of the success of the experimental procedure or of any degree of improvement in the plaintiffs condition.
The Michigan Association for Justice and the Michigan Defense Trial Counsel, Inc. are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.