Tag: Civil Procedure

Uses of the Class Action Device in Autism Health Benefits Litigation

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In the past twenty years, a striking rise in the diagnosis of autism has helped generate increasing levels of attention to the disorder within legislatures and courts throughout the United States. A significant subset of both the legislative and judicial interaction with autism involves whether, and how, treatment for the disorder should be covered by health insurance providers. This Note analyzes a collection of recent class action lawsuits in which parents of autistic children challenged insurers’ denial of benefits for Applied Behavioral Analysis (ABA) therapy, perhaps the most widely accepted treatment for autism. The Note specifically examines the strategic advantages and drawbacks of choosing to litigate a denial of benefits for autism therapy as a class action rather than as an individual lawsuit. Read More …

Cost-Shifting in E-Discovery: Reexamining Zubulake and 28 U.S.C. § 1920

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The burden of e-discovery is familiar to the modern litigator. Discovery costs have always dominated the cost of complex litigation, and despite advances in technology, this is unlikely to change. While litigation has moved from paper discovery to electronic discovery, the net effect of the move to electronic format has been to raise, not lower, discovery costs. Read More …

Civil Procedure

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Michigan Courts issued a number of noteworthy Civil Procedure cases during the current Survey period. For example, the Michigan Supreme Court announced a new and more stringent standard applicable to motions for class certification. The Michigan Court of Appeals also set forth a new method for analyzing motions for summary disposition on the basis of governmental immunity. In addition, two cases from the Survey period demonstrate that Michigan courts have departed from the strict application of the statutory procedural requirements in medical malpractice actions. Noteworthy cases from the current Survey period are described in greater detail below. Read More …

Ijury: The Emerging Role of Electronic Communication Devices in the Courtroom

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The courts and often many judges have made no secret of their discontent with the Internet, particularly with regard to its impact on the legal system and trials. Courts have implicitly questioned the relevance of information obtained from the Internet, and have explicitly stated that while “some look to the Internet as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation.” This view may be a result of many judges being from the “old school,” that is, that they either lack an understanding of modern technology, or the desire to deal with such technology in their courtrooms. Read More …

Civil Procedure

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There was no proverbial “landmark” Civil Procedure case in the current Survey period; however, a number of the selected cases are notable in that they provide helpful clarification and guidance for practitioners with respect to a number of procedural issues and doctrines. For example, the Michigan Appellate Courts have clarified the applicability of the statutes and court rules pertaining to both case evaluation sanctions and the taxation of litigation costs. Michigan courts have also adopted a subjective standard in the areas of service of process and the statute of limitations in attorney malpractice actions. Moreover, the courts have narrowed the doctrines of judicial estoppel and the law of the case doctrine. Noteworthy developments in Civil Procedure from the current Survey period are presented alphabetically by subject matter. Read More …

Solving “the Burklow Problem”: Federal Question Jurisdiction of Tucker Act and Labor-Management Relations Act Cases After Textron Lycoming V. UAW

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Much jurisprudential ink has been spilt on the distinction between a federal district court’s subject matter jurisdiction and whether a plaintiff has stated a claim. The Supreme Court has said: “It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the court’s statutory or constitutional power to adjudicate the case.” The analysis bogs down, however, where “the asserted basis for subject matter jurisdiction is also an element of the plaintiff’s allegedly federal cause of action.” Read More …

The Role of Discovery in Workers’ Compensation Proceedings in Michigan: An Analysis of Stokes V. Chrysler, LLC

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Workers’ Compensation remedies grew out of the hazards and problems associated with the rise of modern industry and the realization that injured workers forced to utilize common law remedies often could not recover for their injuries. In response, workers’ compensation laws provided injured workers with a streamlined no-fault procedure by which they could avoid the expense and delay inherent in civil litigation. In short, legislatures enacted workers’ compensation laws to “provide financial and medical benefits to victims of work connected injuries in an efficient, dignified, and certain form.” For these reasons, it should be axiomatic that courts and legislatures would be leery of allowing liberal discovery in a proceeding like workers’ compensation, which was designed to alleviate concerns of undue delay and expense. With the Michigan Supreme Court’s recent decision in Stokes v. Chrysler, LLC, however, parties will now be able to utilize more liberal discovery in workers’ compensation proceedings, to the detriment of workers. Workers with no interim means of support will now endure higher costs and longer delays before receiving compensation for their job-related injuries. Read More …