An interesting debate played out in the concurring statements to a Supreme Court decision issued earlier today. The topic was Scarsella v Pollak, a 20-year-old Supreme Court decision in a medical-malpractice case. The decision issued today didn’t involve a medical-malpractice case, but it established that there are currently at least two votes to overrule Scarsella.

In Scarsella v Pollak, 461 Mich 547 (2000), the Supreme Court held that a medical-malpractice complaint filed without an affidavit of merit does not toll the limitation period.

Though not a medical-malpractice case, Scarsella played a role in Progress Michigan v Attorney General, __ Mich __ (July 27, 2020) (Docket Nos. 158150 & 158151), which involved a Freedom of Information Act claim. The Court of Appeals relied on Scarsella when holding that the plaintiff’s complaint was untimely because it didn’t comply with certain verification requirements for a FOIA claim. The Supreme Court reversed. The majority held that Scarsella didn’t apply because it was limited to medical-malpractice cases and the statutory provisions in the two cases weren’t comparable.

But, notably, Chief Justice McCormack and Justice Viviano stated in a concurrence that they would have overruled Scarsella. It was a slight position change for Justice Viviano, who indicated in a prior concurrence that he would “reconsider” Scarsella. Castro v Goulet, 501 Mich 884 (2017). Justice Markman responded in Progress Michigan and Castro to defend Scarsella.

So Scarsella lives another day. We know now that Chief Justice McCormack and Justice Viviano would vote to overrule Scarsella if given the chance. We know that Justice Markman would not. We don’t know what Justices Zahra, Bernstein, Clement, and Cavanagh would do.

A link for the opinion is here: http://publicdocs.courts.mi.gov/opinions/final/sct/158150_73_01.pdf