Procedural mess remains neglected
On July 25, the Michigan Supreme Court issued its opinion in the case of Cox v. Flint Board of Hospital Managers (PDF). A very brief synopsis of the Court's ruling on the merits of the claims presented is that (1) the trial court had erred in instructing the jury that it should consider whether the "hospital neonatal intensive care unit" had breached the standard of care and (2) the standard of care applicable to nurses is based on the locality rule, under common law, and not on the statutory nationwide standard applicable to medical specialists.
Lost in the opinion was a highly technical procedural issue which had flummoxed counsel and the courts alike through the entire course of this case, which went up and down the appellate ladder several times over the space of 12 years. (The underlying incident occurred in 1990.) That issue was whether the hospital's attorney had waived its position by having failed to file a cross-appeal after the plaintiff appealed the original order of the trial court setting aside the jury's verdict for the plaintiff, and by deciding not to seek leave to appeal to the Supreme Court from an earlier order of the Court of Appeals in 1994 in favor of returning to the Circuit Court to have a better-drafted order entered. The confusion on the cross-appeal issue stems from the fact that some panels of the Michigan Court of Appeals have followed a mandatory rule that requires that cross-appeals be filed by the winning party in order to preserve any appellate issues in the event that his victory is later taken from him by an appellate court, by contrast to the Federal rule (adopted in most other states) that does not require the filing of a cross-appeal so long as the party in question simply wishes to preserve and not expand his rights.
On the first run up the appellate ladder, the panel had rejected the defendant's positions for failure to file a cross appeal. Other issues led to a remand and to further proceedings at the trial court level before the next appellate stage began.
In 1999, the Court of Appeals ruled in an unpublished opinion:
"In the cross-appeal currently before this Court, we are once again asked to decide whether defendant's substantive issues relating to the underlying judgment should be reviewed when a cross-appeal was never filed at the time the initial appeal was briefed, argued and decided. We are bound by the prior panel's decision that it was necessary for defendant's to file a cross-appeal, after plaintiffs filed their initial appeal, if it wanted its substantive issues heard. We therefore need not address defendant's arguments that a cross-appeal was not necessary."
Judge Richard Allen Griffin, in a strong dissent, stated:
"The strained, overly technical arguments accepted by the majority to bar defendant from raising its meritorious issues on appeal are unpersuasive particularly when viewed in the overall context of this case. In light of the ambiguities contained in the previous opinion of Cox v Bd of Hosp Managers for the City of Flint, unpublished opinion per curiam (after remand) of the Court of Appeals issued 11/22/96 (Docket No. 184859) (herein Cox opinion), and our conflicting decisions on the cross appeal rule, I conclude that we should address the merits of defendant’s appeal. See, generally, MCR 1.105.1 After doing so, I would reverse and remand for a new trial."
He also criticized the majority's reliance on the "law of the case" doctrine, finding it inapplicable when the previous action was not a ruling but a refusal to decide an issue.
In its published opinion issued in 2000, on remand from the Supreme Court, the same panel of the Court of Appeals heard the case. The majority voted to affirm the jury's verdict (reinstated after earlier appellate action) but also expressed its unhappiness about what it perceived as the defendant's overly persistent efforts to get its position heard.
Judge Griffin again dissented. In addition to an analysis of the merits, he addressed the majority's response:
"Because the Supreme Court has ruled that defendant’s substantive issues are properly before us, I find the majority’s criticism of the procedural history of this appeal to be inappropriate and unwarranted."
He responded to the majority's position on the cross-appeal issue, and strongly urged that the Supreme Court resolve the procedural mess:
"Next and most importantly, the majority misconstrues our rule on cross appeals. At the present time, despite the resolution of conflicts rule, MCR 7.215(H), the Court of Appeals is hopelessly in conflict on the construction of our rule on cross appeals. MCR 7.207. In view of this abyss, I urge the Supreme Court to grant leave on this case in order to resolve the conflict. Contrary to the majority, I favor construing our cross appeal rule consistently with federal practice and with the practice of nearly all other states."
The Supreme Court's opinion, reversing the Court of Appeals, essentially accepted Judge Griffin's position on the merits of the issues. It wholly ignored the procedural issues, however, except to mention one of them in a footnote. This means that the procedural morass which Judge Griffin identified will continue to plague the appellate courts of this state in the rare cases in which it will arise.
8:43:57 PM 
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