After appearing in the Judicial Hellholes® report for the first time last year, it appears the Michigan Supreme Court is ready to become a mainstay. The Court sent mixed signals about junk science, continues to take an expansive approach to premises liability and created innovative new ways for employees to sue their employers.
The Michigan Supreme Court took a contradictory approach to junk science in 2024. On the one hand, in March 2024, the Court took a positive step by amending Rule 702 of the Michigan Rules of Evidence to mirror the newly-amended federal Rule 702. 
The reinforced rule clarifies that a party seeking to introduce expert testimony must demonstrate that the testimony is based on reliable scientific principles and methods and emphasizes the judge’s gatekeeping role. On the other hand, the Court issued a ruling that will allow junk science to permeate Michigan courtrooms. In Danhoff v. Fahim, the Court held that “scientific literature is not always required to support an expert’s standard-of-care opinion, but that scientific literature is one of the factors that a trial court should consider…” Additionally, the Court held that “peer-reviewed, published literature is not always a necessary or sufficient method of meeting the requirements of MRE 702.”
In this instance, the trial court found that a plaintiff’s expert’s testimony on the standard of care in a medical liability action lacked any foundation in scholarly literature, and as a result, dismissed the case. The Michigan Court of Appeals affirmed the dismissal because, under Michigan law, supporting literature is an important factor in whether testimony is admissible, and “it is generally not sufficient to simply point to an expert’s experience and background to argue that the expert’s opinion is reliable.” The Michigan Supreme Court reversed the lower courts, however, finding the absence of published literature supporting the expert’s position did not preclude the expert’s testimony.
The dissent, authored by Justice Brian Zahra, noted that the trial court struck the expert’s testimony not simply due to a lack of support for it in scientific literature, but because an expert cannot “rely solely on his or her own word to establish reliability.” Judge Zahra noted that the Michigan statute governing admissibility of expert testimony provides 7 factors to determine whether an expert witness’s testimony is reliable (such as whether it is tested, published in a peer reviewed journal, or generally accepted), and that the proposed testimony had met none of these factors.
The Michigan Supreme Court took a relaxed approach to the state’s expert evidence statute when deciding whether an expert witness in a medical liability case must be an expert in the “one most relevant” specialty to be qualified to testify. The Court found that so long as an expert is in the same general specialty as the defendant doctor, it does not matter if they are in different “subspecialities.”
In Estate of Horn v. Swofford, the plaintiff submitted to the court an affidavit of merit from a doctor specializing in neuroradiology to support a claim that a diagnostic radiologist misinterpreted his wife’s condition from a cranial CT scan, which should have led him to perform brain surgery. The parties disagreed about whether a doctor who spends 90% to 95% of his practice on neuroradiology is qualified to evaluate the care provided by a diagnostic radiologist, who is a generalist. The trial court had excluded the testimony of the neuroradiologist, finding a diagnostic radiologist is the most relevant specialty, but the intermediate appellate court reversed.
The Court reasoned that subspecialities are subsumed by a general specialty under the statute, overturning long-standing precedent. The Court ruled that the precedent was flawed and ignored portions of the statute.
Last year, the Michigan Supreme Court overturned a long- standing framework for deciding slip-and-fall cases. The two companion cases involved an individual who slipped on ice while walking from a car into a gas station and a supermarket shopper who fell over a cable that indicated a check-out lane was closed.
In both instances, the defendants asked the trial courts to dismiss the case on the basis that a premise owner has no duty to protect guests from dangers that are “open and obvious,” a defense long available under Michigan law. In Kandil-Elsayed v. F&E Oil, Inc., however, the Michigan Supreme Court overruled precedent, finding that despite the obvious nature of these hazards, a premises owner still has a duty to protect visitors. Instead of dismissing cases in such circumstances, courts will be required to conduct a trial in which a jury may allocate fault to the plaintiff, reducing his or her damages. From a practical standpoint, this means that it will be nearly impossible for premises owners to have slip-and-fall cases dismissed even when it involves the most obvious hazard, like ice and snow in Michigan.
Following this decision, in July 2024, the Court further expanded premises liability by ruling that a condo association can be sued by a member who slipped on an icy sidewalk. Lower courts dismissed the case because the condo association’s duty of care is to protect visitors to the property, but the plaintiff was a co-owner of the land. The Michigan Supreme Court reversed and overruled precedent, finding that a condominium co-owner is an invitee to which the association owes a duty of care. Writing for the dissent once again, Justice Zahra remarked, “Considering the expansion of premises liability occasioned by our decision last term in Kandil-Elsayed v F & E Oil, Inc, now is not the time to recognize a new category of premises-liability claims.”
“Considering the expansion of premises liability occasioned by our decision last term in Kandil-Elsayed v F & E Oil, Inc, now is not the time to recognize a new category of premises-liability claims.”
This year the Michigan Supreme Court created new pathways for employees to sue their employers, opening the door for entrepreneurial plaintiffs’ lawyers to flood the courts with these types of claims.
First, in Stegall v. Resource Technology Corp., the Court ruled that terminated employees can sue their employers through a “public-policy cause of action” for wrongful termination rather than follow procedures already set for retaliation claims under applicable workplace safety laws.
In this case, an auto plant worker expressed concerns to his employer about potential asbestos at his job site and threatened to contact federal and state regulators. Two months later, the employee was terminated from his job, at a time in which the automaker was ending production of a vehicle made at that facility, closing down the plant, and transferring and laying off workers. After the worker’s termination, he filed a complaint with the Michigan Occupational Safety and Health Administration (OSHA), alleging retaliation for raising safety concerns. The employee then filed a wrongful termination lawsuit. Michigan OSHA investigated and found no asbestos at the plant.
The trial court and intermediate appellate court both ruled that a worker who claims retaliation must follow laws in place for that very purpose and that provisions in workplace safety laws provided an employee’s exclusive remedies. The Michigan Supreme Court reversed, holding that a tort claim for termination in violation of public policy is allowed because it considered those remedies inadequate. Justice Zahra, in dissent, criticized the majority for substituting its own remedy for a remedy enacted by federal and state legislatures, and noted that even if a separate wrongful termination could proceed, the defendant had easily shown a legitimate, non- retaliatory reason for the plaintiff’s termination – the plant closure. He concluded that the majority is “breathing life into plaintiff’s preempted and otherwise meritless claims.”
In Mothering Justice v. Attorney General, the Michigan Supreme Court inappropriately inserted itself into a public policy matter involving the state’s employment laws.
In 2018, two laws were proposed that met the ballot initiative requirement under Michigan law called the Improved Workforce Opportunity Wage Act (WOWA) and Earned Sick Time Act (ESTA). Included among the provisions was a private right of action against employers who question or act against an employee’s use of sick and overtime hours.
When considering a ballot initiative, the Michigan legislature has three options: (1) adopt the initiative into law as is; (2) reject the measure and it will appear on the ballot; or (3) propose an alternative measure that will then appear on the ballot alongside the original proposal. In the leadup to the 2018 election, the state legislature adopted the initiative as it was written; however, post-election, it amended the Acts to alter several provisions and create exemptions.
Several organizations joined by Attorney General Dana Nessel challenged the legislature’s constitutional authority to adopt an initiative, then amend it, during the same legislative session.
The Court of Appeals rejected the lawsuit, finding that amending an initiative is within the legislature’s prerogative to make law. But the Michigan Supreme Court reversed, 4-3, deeming the legislative actions unconstitutional. As a result, the original ballot initiatives WOWA and ESTA, including the provision allowing a private right of action, will go into effect unaltered by the legislative changes.
As aptly put by the dissent written by Chief Justice Elizabeth Clement, “as tempting as it might be to step into the breach” and decide whether the initial proposal or amended employment laws should become law, “the Court lacks the power to create restrictions [on the legislature’s power to make and amend laws] out of whole cloth.”
A federal court has requested that the Michigan Supreme Court decide the constitutionality of the state’s limit on noneconomic damages in medical liability cases. In Beaubien v. Trivedi, patient’s estate alleged that a doctor negligently failed to detect a brain tumor that ultimately led to his death. At trial, the jury awarded his estate $115,000 in medical expenses and $6.5 million in noneconomic damages, plus $2 million to his wife for loss of consortium. 
Michigan law limits noneconomic damages in medical liability actions to about $1 million in cases involving permanent, severe injuries and $569,000 in other cases, including this one (a similar inflation-adjusted limit applies in product liability actions). The estate then challenged the cap, arguing it violates the Michigan Constitution’s right to jury trial and equal protection clause. Most courts, however, have upheld statutory limits on subjective noneconomic damages, which provide predictability and stability in the civil justice system, and protect access to affordable healthcare. Michigan’s intermediate appellate courts have repeatedly found the statutory limit constitutional, but the state supreme court has not decided the issue.
The Michigan Legislature was put on “Heat Watch” by the American Tort Reform Association’s Legislative HeatCheck this summer. Michigan’s lawmakers landed the state on the “Heat Watch” list due to a major shift following the 2022 elections, which flipped the balance of power in the state legislature. This emboldened the trial bar to push an aggressive liability-expanding agenda.
Several pending bills raised red flags for potential lawsuit abuse. Already, the legislature repealed a law in 2024 that precluded lawsuits alleging that medications are defective when the FDA had approved the product and its labeling.
On January 6, 2025, ExxonMobil filed a lawsuit against California Attorney General Robert Bonta in Texas federal court in response
Judicial Hellholes
Make America Healthy Again, a battle cry for Donald Trump’s presidential campaign, is an important idea that is now being
Judicial Hellholes
The changes to Federal Rule of Evidence 702 last year were supposed to be a watershed moment for expert testimony
Judicial Hellholes