20241217_C365702_52_365702.Opn.Pdf

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

JOAN MILLER, Personal Representative of the UNPUBLISHED

ESTATE OF AARON KELLY MILLER, December 17, 2024

11:57 AM

Plaintiff-Appellee,

v Nos. 365702; 365703

Oakland Circuit Court

ANGELS PLACE, doing business as ANGELS’ LC Nos. 2018-165847-NI; 2020-

PLACE, INC., doing business as ANGELS’ PLACE, 181908-NH

and CAROL CARAMIA,

Defendants-Appellants.

JOAN MILLER, Personal Representative of the

ESTATE OF AARON KELLY MILLER,

Plaintiff-Appellant,

v Nos. 365986; 365989; 366143;

366145

Oakland Circuit Court

ANGELS PLACE, doing business as ANGELS’ LC Nos. 2018-165847-NI; 2020-

PLACE, INC., doing business as ANGELS’ PLACE, 181908-NH

and CAROL CARAMIA,

Defendants-Appellees.

Before: YOUNG, P.J., and M. J. KELLY and FEENEY, JJ.

PER CURIAM.

This case arises out of the choking-related death of Aaron Miller at an adult foster care

home. Miller’s parents serve as the personal representative of his estate and brought a wrongful

death action against Angels Place, the owner and operator of their son’s care home, and Carol

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Caramia, an employee thereof. In Docket Nos. 365702 and 365703,1 defendants appeal as of right

the judgment for plaintiff, awarding a total of $5,976,963.63 in damages and interest, which the

trial court entered after a jury trial limited to the issue of damages. We affirm.

In Docket Nos. 365986 and 365989, plaintiff appeals as of right the opinion and order

denying in part plaintiff’s motion for discovery sanctions relating to electronically stored

information (ESI), and awarding plaintiff $17,600 in attorney fees and costs. In Docket Nos.

366143 and 366145, plaintiff appeals as of right the order denying her motion for frivolous-defense

sanctions. We affirm the denial of frivolous defense sanctions (Docket Nos. 366143 and 366145),

but vacate the order regarding discovery sanctions and attorney fees and costs (Docket Nos.

365986 and 365989) and remand for further proceedings.

I. BACKGROUND

This wrongful-death case arises from the tragic death of Aaron Miller. Miller had

intellectual disabilities and was a long-time resident of Joliat Home, one of 20 adult foster-care

group homes owned and operated by Defendant Angels Place.2 Defendant Carol Caramia was a

direct-care worker assigned to care for the residents at Joliat Home.

On December 30, 2017, shortly before 4:00 p.m., Caramia was the only direct-care worker

at Joliat Home. Miller was also present in the home. Caramia was in the kitchen, starting to

prepare dinner for the residents. Miller came out of the back-bedroom area of the home and said,

“help me[.]” He fell down in the kitchen and his arms and legs began twitching. Caramia called

911. She told the dispatcher that Miller had fallen down and his breathing was shallow. She stated,

“I think he might be choking on something.” Miller stood up, then started spitting a “frothy and

white” substance out of his mouth. He began staggering around the house as Caramia told Miller

repeatedly to sit down. According to Caramia, Miller told her that he was going to his room to go

to bed. He looked scared and again stated, “help me.” Caramia followed him while she remained

on the phone with the 911 dispatcher. Miller went into his bedroom and collapsed. Caramia told

the dispatcher that Miller had a “seizure problem” and stated, “[h]e’s having seizures.”

Several emergency medical personnel, including Commerce Township Fire Department

Officer Roger Wilson, arrived at Joliat Home at approximately 4:07 p.m. At that point, Miller was

unresponsive, and his face was turning blue. Officer Wilson testified at trial that he swept away

something in Miller’s mouth. Miller never regained consciousness and was pronounced dead the

next day. The cause of death was deemed to be asphyxia and airway obstruction.

Before this litigation commenced, the Michigan Department of Licensing and Regulatory

Affairs (LARA) and the Oakland Community Health Network Department of Recipient Rights

1

This Court consolidated the appeals in Docket Nos. 365702, 365703, 365986, 365989, 366143,

and 366145. Miller Estate v Angels Place, unpublished order of the Court of Appeals, entered

May 24, 2023 (Docket Nos. 365702, 365703, 365986, 365989, 366143, and 366145).

2

Angels Place is a non-profit company that was also doing business as Angels’ Place, Inc. and

Angels’ Place.

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(ORR) investigated the incident. The investigators learned that Miller’s Individualized Plan of

Care (IPOS) required Angels Place to follow certain rules, including cutting Miller’s food into

bite-sized pieces and monitoring him while eating. The direct-care workers also had to monitor

Miller at least every five minutes.

The investigators also learned that Caramia had a recent history of performance issues at

work. In early 2017, Caramia went on medical leave for a mental health crisis that followed the

death of her mother. She had several restrictions placed upon her return, and was barred from

passing medication, driving the residents, and cooking for the residents. No evidence exists that

anyone disclosed to the investigators that Caramia suffered from a mental-health condition.

In May 2018, plaintiff filed this wrongful-death action, raising claims for ordinary

negligence3 against both defendants and breach of contract against Angels Place. Plaintiff’s

overarching theory of the case was that Caramia should not have been working alone, or at all, at

Joliat Home, and that her conduct was a proximate cause of Miller’s death.

During discovery, plaintiff requested documents regarding Caramia’s job performance. On

January 31, 2019, one of defendants’ attorneys wrote a letter to plaintiff’s counsel attaching several

e-mails that Angels Place had not produced earlier in discovery. Those e-mails included e-mails

from Caramia’s direct supervisor, Ashley Gist, to her supervisors at Angels Place detailing Gist’s

recent frustrations with Caramia’s job performance since her return from medical leave.

Plaintiff deposed several of Angels Place’s representatives and the deponents were directed

to bring e-mails4 between the witness and anyone at Angels Place regarding Caramia. During

those depositions, plaintiff obtained information about Caramia’s performance problems and her

poor 2017 annual appraisal. According to plaintiff, during the deposition of Angels Place program

director Rosie Whitcher-Appel, she produced an e-mail, entitled “[O]n call report,” which Angels

Place had not produced earlier in discovery. The remaining deponents, however, did not produce

responsive e-mails at their depositions. A lengthy ESI dispute followed.

At a September 2021 hearing, counsel discussed Angels Place’s ESI and whether Angels

Place had any remaining responsive documents. The trial court warned defense counsel that if

3

Defendants moved for summary disposition under MCR 2.116(C)(7) and (C)(8) at the outset of

the case, arguing that the case was a disguised medical malpractice case filed without taking the

necessary procedural steps. The trial court agreed with defendants and dismissed the case. This

Court reversed in a published opinion and the claims were reinstated. See Miller Estate v Angels’

Place, Inc, 334 Mich App 325; 964 NW2d 839 (2020) (Miller Estate I). While awaiting the

outcome in this Court, plaintiff filed a new medical malpractice case against Angels Place.

Eventually, plaintiff amended the 2020 complaint to include an ordinary-negligence claim, and the

medical malpractice claim was dismissed following Miller Estate I. The 2018 case and the 2020

case were consolidated in lower court.

4

When a subpoena requires a person to bring documents or other materials to a deposition, it is

called a deposition duces tecum. That phrasing is used in the remainder of this opinion.

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Angels Place had not complied with the order to produce e-mails responsive to the discovery

requests, then “there’s going to be sanctions, severe sanctions.” The court added:

[Y]our clients are not to have a manual or automatic deletions [sic] of anything.

All of that should have been frozen at the time, but certainly the Court does not

want these things to be erased or deleted at this time, and all of those provisions

should be in the stock room.

Later in discovery, plaintiff requested an ESI inspection and moved for discovery

sanctions. In November 2021, the trial court ordered an ESI inspection with a joint expert named

Larry Dalman. On the issue of sanctions, the court stated, “I want an order immediately to make

sure that your clients are not deleting anything. I want you to provide them with that information.

It should have been done long ago.” Once again, the trial court explained that if documents existed

that were responsive to the duces tecum deposition notices and were not produced, then, “there

will be sanctions.”

On December 8, 2021, defendants moved for summary disposition, arguing, in relevant

part, that plaintiff could not establish that Angels Place engaged in negligent hiring or retention of

Caramia because no evidence existed that Angels Place knew or should have known that Caramia

was unable to supervise Miller. Shortly after, defendants requested emergency relief from the

court’s ESI order, indicating that Angels Place’s information technology (IT) specialist, Mary Jo

Allen, had experienced a medical emergency and was on leave. After Dalman was able to

complete his investigation, an evidentiary hearing occurred in May 2022. In the evidentiary-

hearing brief, plaintiff maintained that Dalman had uncovered thousands of relevant documents,

while defendants explained in their brief that they did not produce these documents earlier because

the uncovered documents were never requested, and no order had compelled their production.

During the evidentiary hearing, Dalman provided expert testimony about his ESI

inspection. He explained that he was able to determine that someone at Angels Place had wiped

two pink SanDisk flash drives clean intentionally using a specific software. He did not know what

information had been on those drives. Dalman determined that more than 1,200 documents were

deleted on December 8, 2021, the same day defendants filed their dispositive motion.

Dalman also sent the attorneys a report about the server for a computer that Angels Place

maintained at Joliat Home. During his investigation, Dalman located several folders labeled

“corporate,” “confidential,” and “Joliat Incidents,” which had not been provided to plaintiff. Those

folders were last modified on January 18, 2019, the same day defense counsel met with his client

before he produced some responsive e-mails later that month. Dalman also testified that the

computer was first used on January 12, 2018, just two weeks after Kelly’s death and also a date

that appeared as a time stamp on several uncovered e-mails.

Allen testified that any employee may use a flash drive, and Angels Place does not keep a

record of information saved on a flash drive. When the flash drive is returned, Allen, or someone

on her team, routinely deletes the information on it so it can be used again. However, Allen

acknowledged that she was on medical leave on December 8, 2021, when the flash drives were

deleted. Regarding the e-mails timestamped on January 12, 2018, Allen testified she was on

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bereavement leave until January 13, 2018, so she was not aware of how that date came to be on

the e-mails.

As the trial date approached, the parties filed several motions in limine, as discussed later.

Because of the motions in limine, the court permitted plaintiff’s forensic-pathology expert, Dr.

Daniel Spitz, to testify at trial about Miller’s conscious pain and suffering, provided that plaintiff

laid a foundation for his expert testimony. The court also permitted the admission of the state-

investigation reports at trial, finding that the documents fell within the business-records exception

to the hearsay rule. But the court precluded admission of a statement within a 2011 emergency-

room record suggesting that Miller had a history of seizures (which was defendants’ theory of how

Miller died), and precluded defendants from arguing that Miller could not perceive conscious pain

and suffering in the same manner as an individual without intellectual disabilities. Following the

hearing, the court permitted both parties to submit proposed findings of fact and conclusions of

law.

In early June 2022, the court heard defendants’ motion for summary disposition, which had

been pending while the parties worked to resolve the ESI dispute. According to defendants, the

court indicated off the record that it would deny the motion for summary disposition. On June 3,

2022, the Friday before the trial was scheduled to begin, at about 9:20 p.m., defendants filed an

emergency motion in limine to limit the proofs to damages considering their recent

“acknowledgment of responsibility.” On appeal, defendants maintain that they were forced to

acknowledge responsibility on the eve of trial because the court’s delay in deciding key motions

created uncertainty about the case. Defendants’ decision to admit liability led to a dispute between

the parties over whether plaintiff could present evidence at trial that might bear on the issue of

fault.

On the day before trial, the trial court issued a detailed opinion and order denying

defendants’ motion for summary disposition. According to defendants, when they appeared for

trial on June 6, 2022, the judge’s clerk handed the parties an undocketed opinion and order on the

motion for summary disposition; however, that interaction does not appear on the record. The

court indicated that it would allow plaintiff to admit evidence at trial that might bear on the issue

of liability and adjourned the trial to later that week.

That evening, the parties conducted the deposition of defendants’ forensic-pathology

expert, Dr. Ljubisa Dragovic, for possible use at trial, as he had a scheduled vacation. Following

Dr. Dragovic’s deposition, plaintiff moved to preclude admission of his testimony supporting his

opinion that Miller had a seizure disorder and on whether Miller could have comprehended or

appreciated his injury because of his intellectual disabilities. The court agreed with plaintiff on

this issue and struck certain portions of Dr. Dragovic’s deposition testimony.

Defendants then moved to disqualify the trial judge on the basis that she was biased or

prejudiced against defendants and their attorney. Defendants noted several instances in which the

trial judge had recently ruled against the defense, and also highlighted several statements the judge

had made that defendants believed illustrated bias or prejudice. As discussed in more detail later,

the trial court denied that motion and referred it to the chief judge, who reviewed the motion de

novo and denied the motion as untimely. The trial was adjourned to late June 2022.

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The trial on damages for conscious pain and suffering occurred over a two-day period in

late June 2022. By that point, the parties had agreed to a joint statement of admitted liability,

which was read into the record. Caramia and Wilson testified during the first day of trial.

Dr. Dragovic and Dr. Spitz both testified live during the second day of trial.

During trial, the issue arose over whether Dr. Dragovic could testify about whether Miller

could perceive conscious pain and suffering in the same manner as an individual without severe

mental disabilities using scientific literature. The court concluded that Dr. Dragovic’s testimony

should be limited in the same manner as his deposition; this meant excluding the same portions of

his live testimony.

During plaintiff’s rebuttal closing argument, her attorney made the following statement:

The best evidence is not Mr. Brownell’s timeline, it’s not my timeline, it’s not our

Power Points, it’s that 911 tape. And you know what, you want to try to experience

what he experienced, I don’t have a clue if you guys have a coffee stirrers [sic] in

the conference – in the jury room, put a coffee stirrer in your mouth –

Defense counsel objected on the basis that this was an improper “golden-rule” argument, but the

court allowed the argument to continue. However, plaintiff’s counsel did not continue to discuss

the idea of the experiment in his rebuttal argument. It is not clear whether the jury performed the

suggested experiment. However, the jury deliberated and reached a unanimous verdict that

plaintiff was entitled to $5,344,000 in damages for Miller’s physical pain and suffering, mental

anguish, and fright and shock.

Following trial, the trial court issued a detailed opinion and order granting plaintiff’s

request for discovery sanctions for Angels Place’s ESI violations. The court specifically noted

that dates on which the deletion of certain documents occurred corresponded with key dates in this

litigation, suggesting that the deletions were intentional. After this ruling, the case was reassigned

from the original trial judge to the successor trial judge. Plaintiff filed a submission of costs and

attorney fees for the discovery violations, which included plaintiff’s counsel’s requested hourly

rate and number of hours. The parties disputed the hourly rate and the number of hours, and

requested an evidentiary hearing. The successor judge entered the judgment in October 2022

without holding an evidentiary hearing.

Defendants moved for a new trial or to decrease the jury’s damages award (remittitur),

raising substantially the same arguments raised here on appeal. After initially transferring the

motion to the original trial judge for consideration, the successor judge sua sponte reconsidered

this decision and denied the motion for a new trial or remittitur without a hearing, explaining that

the motion required insight into the credibility of the evidence presented to the jury, which the

successor judge could not assess because she did not preside over the trial. Defendants then filed

the appeals in Docket Nos. 365702 and 365703, appealing the jury’s award.

The successor judge considered the motion for attorney fees and costs. Again, the court

issued an opinion and order with conducting a hearing. The court ruled that while it did not

condone Angels Place’s behavior, plaintiff’s requested fees were “exorbitant and unreasonable”

both in terms of the requested hourly rates and the number of hours charged. The court ruled that

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the sanctions should be limited to the amount needed to compensate plaintiff for having to file and

appear for evidentiary hearings on multiple motions for sanctions relating to the ESI. The court

awarded plaintiff $17,600 in attorney fees and costs.

Finally, plaintiff moved for frivolous-defense sanctions under MCL 600.2591. In lieu of

hearing oral arguments, the court denied the motion “for lack of merit on the grounds presented.”

The appeals in Docket Nos. 365986, 365989, 366143, and 366145 followed and have since been

consolidated with the jury verdict appeals in Docket Nos. 365702 and 365703.

II. DOCKET NOS. 365702 AND 365703

A. ATTORNEY MISCONDUCT

In Docket Nos. 365702 and 365703, defendants first argue that the jury verdict was the

product of misconduct because of an improper statement plaintiff’s counsel made during his

rebuttal closing argument. We agree that the statement in question was improper, but conclude

that it did not rise to the level of misconduct affecting the fairness of the trial.

We review the trial court’s decision on a motion for a new trial for an abuse of discretion.

Gilbert v DaimlerChrysler Corp, 470 Mich 749, 761; 685 NW2d 391 (2004).5 Additionally, we

review the trial court’s general conduct of the trial under an abuse-of-discretion standard. Zaremba

Equip, Inc v Harco Nat’l Ins Co, 302 Mich App 7, 21; 837 NW2d 686 (2013). “An abuse of

discretion generally occurs only when the trial court’s decision is outside the range of reasonable

and principled outcomes . . . .” Hecht v Nat’l Heritage Academies, Inc, 499 Mich 586, 604; 886

NW2d 135 (2016).

In general, a party must seek to cure an error at trial before the case is submitted to the jury

for the issue to be preserved for appellate review. Reetz v Kinsman Marine Transit Co, 416 Mich

97, 101-102; 330 NW2d 638 (1982). However, “[w]here improper conduct by one or both parties

influences the outcome of a trial, an appellate court may reverse although the appellant’s attorney

did not seek to cure the error.” Id. at 102. In Reetz, the Michigan Supreme Court outlined the

following three-step analysis for this Court to consider on appeal:

When reviewing an appeal asserting improper conduct of an attorney, the appellate

court should first determine whether or not the claimed error was in fact error and,

if so, whether it was harmless. If the claimed error was not harmless, the court must

then ask if the error was properly preserved by objection and request for instruction

or motion for mistrial. If the error is so preserved, then there is a right to appellate

review; if not, the court must still make one further inquiry. It must decide whether

5

We note that the trial court did not address directly the arguments raised in defendants’ motion

for a new trial, and instead reasoned that the issues were too intertwined with the evidence

submitted at trial. However, we may affirm the trial court’s ruling when the trial court reached the

correct conclusion, albeit for a different reason. See Lane v KinderCare Learning Ctrs, Inc, 231

Mich App 689, 697; 588 NW2d 715 (1998).

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a new trial should nevertheless be ordered because what occurred may have caused

the result or played too large a part and may have denied a party a fair trial. If the

court cannot say that the result was not affected, then a new trial may be granted.

Tainted verdicts need not be allowed to stand simply because a lawyer or judge or

both failed to protect the interests of the prejudiced party by timely action. [Id. at

102-103.]

In this case, defense counsel made a contemporaneous objection when plaintiff’s counsel

suggested that the jury put the coffee stirrers in their mouth in the jury room. However, counsel

argued that plaintiff’s counsel was making an improper golden-rule argument, in violation of the

principles outlined in May v Parke, Davis & Co, 142 Mich App 404, 423; 370 NW2d 371 (1985).

There was no request for a curative instruction or a mistrial. Counsel later raised the objection of

an improper experiment outside of the presence of the jury, but this objection was not

contemporaneous. We deem the issue unpreserved. Tolas Oil & Gas Exploration Co v Bach Servs

& Mfg, LLC, ___ Mich App ___, ___; ___ NW3d ___ (2023) (Docket No. 359090); slip op at 2

(citation omitted). Therefore, as a result, to the extent that an error occurred, and that the error

was not harmless, we will examine whether a new trial should be ordered because what occurred

may have caused the result or played too large a part and may have denied defendants a fair trial.

See Reetz, 416 Mich at 103.

The Michigan Supreme Court has explained that “[w]hile a lawyer is expected to advocate

his client’s cause vigorously, parties are entitled to a fair trial on the merits of the case,

uninfluenced by appeals to passion or prejudice.” Bd of Co Road Comm’rs of Wayne Co v GLS

LeasCo, Inc, 394 Mich 126, 131; 229 NW2d 797 (1975) (quotation marks and citation omitted).

An attorney’s comments during trial normally do not constitute grounds for reversal, unless those

comments demonstrate a deliberate attempt to deprive the opposing party of a fair and impartial

trial. Carlsen Estate v Southwestern Mich Emergency Servs, PC, 338 Mich App 678, 697; 980

NW2d 785 (2021).

In Reetz, 416 Mich at 98-99, the Michigan Supreme Court addressed the defendant’s

allegation that the plaintiff’s counsel made several improper comments during a personal-injury

trial. At trial, the plaintiff’s counsel made comments regarding the defendant’s ties to George

Steinbrenner III, the owner of the New York Yankees. Id. at 99, 110. The plaintiff’s counsel

argued during his closing argument that the defendant was engaged in a coverup and that its

witnesses had committed perjury. Id. at 107. The plaintiff’s counsel added that the defendant (a

company) did not care about the plaintiff’s welfare, and that the defendant could afford “the best

of everything.” Id. at 110. On appeal, the Michigan Supreme Court concluded, “[t]he effect of

these comments was to create in the minds of the jurors an image of [the defendant] as an unfeeling,

powerful corporation controlled by a ruthless millionaire.” Id. at 111. Additionally, the Court

explained while these isolated comments are always improper, they may not always be incurable

or require reversal. Id. “[W]hen, as in this case, the theme is constantly repeated so that the error

becomes indelibly impressed on the juror’s consciousness, the error becomes incurable and

requires reversal.” Id.

The present case lacks that repetition and incurability; the error here was harmless. We

certainly agree with defendants that counsel’s statement was an improper suggestion that the jurors

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conduct their own experiment in the jury room, which would violate the jury instructions.

However, this one instance of error does not demonstrate a pattern of misconduct designed to

deprive defendants of a fair and impartial trial. To start, plaintiff’s counsel was not able to finish

his statement suggesting that the jurors use coffee stirrers to mimic the “air-hunger” event that

Miller may have experienced before his death. Defense counsel interrupted the rebuttal closing

argument with an objection. Once defense counsel placed his objection on the record, plaintiff’s

counsel did not resume his argument that the jurors should conduct an experiment in the jury room

and instead reminded the jurors that they could not consider outside information.

Furthermore, the idea of the coffee stirrers was first mentioned during Dr. Spitz’s

testimony, when plaintiff’s counsel questioned him as follows:

Q. If someone was to breathe through a coffee stirrer, for example, would

that give the sensation of having airflow decrease to kind of what a partial

obstruction would be?

A. I suppose if you–if you could do that you wouldn’t–you wouldn’t

maintain yourself all that long, because again, that would not be an efficient and

effective way to have, you know, to be able to oxygenate your entire body. But,

yeah, of course–but of course the minute you start to get a little bit where it’s not

working, you know, you’re going to go back to breathing normally, but I–but I

guess if you can envision the process by which you can’t go back to breathing

normally and you have to continue breathing through a limited–limited straw or

what have you, then yeah, that–that would be sort of an experiment that you can

do, yeah.

Defense counsel did not object to this line of questioning. Therefore, the jury already knew from

Dr. Spitz’s testimony that breathing through a coffee stirrer would give a similar feeling to having

a partial airway obstruction. Also, there is no evidence that the jurors conducted the experiment

in the jury room. For these reasons, the statement, though inappropriate, had limited effect on the

jury and was harmless.

Importantly, the trial court also gave several curative instructions that addressed any

minimal prejudicial effect of the improper comment. See Zaremba, 302 Mich App at 25 (“ ‘Jurors

are presumed to follow their instructions, and instructions are presumed to cure most errors.’ ”)

(citation omitted). The trial court instructed the jurors twice to decide the issue of damages using

the evidence and avoid basing the verdict on passion, prejudice, sympathy, or bias. Later that day,

the court instructed the jury that the lawyers’ statements, commentary, and arguments are not

evidence. The court also informed the jurors: “Research, investigations, and experiments not

admitted into the courtroom are not evidence. You must not go [sic] any investigations on your

own or conduct any research, experiments of any kind.”

Finally, even assuming the error was not harmless, because the issue is unpreserved, we

must also examine whether a new trial should be ordered because what occurred may have caused

the result, or played too large a part and may have denied defendants a fair trial. See Reetz, 416

Mich at 103. On this topic, defendants suggest that plaintiff’s counsel always intended to present

the experiment idea to the jury during his rebuttal closing argument. But even assuming counsel’s

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suggestion to the jury was planned, that fact would not change that the comment was isolated and

had minimal influence on the trial. In other words, this case does not present a situation where a

single improper comment became incurable because it was “indelibly impressed on the jurors’

consciousness.” See id. at 111. The trial court correctly concluded defendants are not entitled to

a new trial.

B. BIAS AND PREJUDICE

Defendants next argue that the trial court abused its discretion by denying their motion for

a new trial because the verdict was the product of the improper influence of passion or prejudice,

and because the verdict was excessive. We disagree.

The question whether judicial misconduct deprived the appellant of a fair trial is a

constitutional-law question that we review de novo. See People v Stevens, 498 Mich 162, 179 n

5, 180; 869 NW2d 233 (2015) (indicating the same general standard applies in civil cases as well).

Regarding whether the verdict was excessive, we review that issue for an abuse of discretion.

Diamond v Witherspoon, 265 Mich App 673, 692; 696 NW2d 770 (2005).

As our Supreme Court has explained, the task of determining whether the damages were

excessive “is not a simple task,” and the calculation of damages required to compensate a party

for pain and suffering is imprecise and usually reserved for the jury. Gilbert, 470 Mich at 763-

764. The role of the reviewing court is to ensure “that a verdict is not ‘excessive’ without

concomitantly usurping the jury’s authority to determine the amount necessary to compensate an

injured party.” Id. at 764. There is no precise algorithm for this review, and this Court must

consider that the reason behind compensatory damages is to compensate the injured party for

losses proven in the trial record. Id. This Court must consider the following three factors:

[(1)] whether the verdict was the result of improper methods, prejudice, passion,

partiality, sympathy, corruption, or mistake of law or fact; [(2)] whether the verdict

was within the limits of what reasonable minds would deem just compensation for

the injury sustained; [and (3)] whether the amount actually awarded is comparable

to awards in similar cases within the state and in other jurisdictions. [Id. (alterations

in original), quoting Palenkas v Beaumont Hosp, 432 Mich 527, 532-533; 443

NW2d 354 (1989).]

As demonstrated by these three factors, known as the Palenkas factors, when the verdict is the

result of improper advocacy methods, misleading arguments, or other factors that affect the jury’s

ability to quantify the plaintiff’s injuries, the damages award becomes inherently unreliable.

Gilbert, 470 Mich at 764. Similarly, when the verdict is not supported by the record or is “entirely

inconsistent” with verdicts in similar cases, the appellate court may conclude the verdict is

excessive. Id. at 765.

1. PASSION OR PREJUDICE-COUNSEL

Beginning with the first Palenkas factor, defendants argue that the verdict was the result

of improper methods, prejudice, passion, partiality, sympathy, corruption, or mistake of law or fact

caused by the conduct of either plaintiff’s counsel or the trial court. We disagree.

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Defendants rely on the Michigan Supreme Court’s opinion in Gilbert to support their

position. In Gilbert, the Michigan Supreme Court addressed whether a jury verdict was the result

of passion and prejudice because the plaintiff’s counsel “had repeatedly equated [the] plaintiff’s

experiences to those of the victims of the Holocaust, and thereby associated [the] defendant’s new

German co-owners with the Nazis who perpetrated that horror.” Id. at 762. Gilbert was a sexual-

harassment lawsuit that involved a then-unprecedented $21 million jury-verdict award. Id. at 753.

The plaintiff remained employed by the defendant at the time of trial, but claimed that the sexual

harassment permanently changed her brain chemistry. Id. at 753, 759-760. The Michigan

Supreme Court agreed with the defendant that the large verdict was the result of the jury’s passion

and prejudice, which was inflamed through “prejudice-baiting rhetoric.” Id. at 755. The plaintiff’s

counsel made other improper remarks, such as equating the plaintiff with a dog that was physically

abused. Id. at 773. The Michigan Supreme Court held that the trial court ignored how prominent

the attorney’s prejudicial remarks were and the effect those remarks had on the jury. Id. at 778.

This situation is factually distinguishable from Gilbert. As discussed earlier, counsel’s

statement was an isolated instance of error that did not permeate the trial with prejudice-baiting

rhetoric, like what occurred in Gilbert. This was not a situation where plaintiff’s counsel made

repeated statements throughout trial comparing defendants to immoral individuals or regimes.

Moreover, Gilbert was a sexual harassment lawsuit where the plaintiff was still employed by the

defendant and where the trial resulted in an eight-figure jury award. In contrast, this case was a

wrongful-death lawsuit in which the decedent died after an episode of choking that lasted at least

eight minutes and resulted in a seven-figure award. Finally, for the reasons discussed in Issue A,

there is no indication that the isolated statement during the rebuttal closing argument deprived

defendants of a fair trial, particularly considering the trial court’s cautionary jury instructions.

2. PASSION OR PREJUDICE-JUDICIAL BIAS

Next, defendants argue that the trial court made a mistake of law and exhibited bias when

the court permitted plaintiff to present evidence at trial bearing on the issue of liability, which

defendants argue led them to agree to a detailed stipulation of admitted liability. Once again, we

disagree.

Defendants admitted liability before trial. In a motion in limine to prevent admission of

evidence bearing on liability, filed on the eve of trial, defendants stated that they “have elected to

acknowledge responsibility in this matter so that the only matter that will [be] left to be decided

by the jury is damages.” When the parties appeared for the June 6, 2022 trial date, the issue of the

admission of liability was discussed before the jury entered the courtroom. The trial court denied

the motion in limine to the extent that defendants requested the exclusion of any evidence that

might bear on negligence, explaining that “the evidence with regard to any type of negligence or

anything of that matter is going to remain the same.” When defense counsel argued that it was

“error” to admit evidence on liability when liability was admitted, the trial court responded as

follows:

Sir, the inappropriate purpose, sir, would be that this was filed the Friday evening,

as you said, as a tactical matter, sir. This is after we’ve had significant issues with

regard to electronic discovery, issues with regard to the deletion of the discovery,

issues with regard to the production, making sure that everything was done.

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The court concluded that if the parties agreed to a joint statement of admitted liability, then the

joint statement could be submitted to the jury for consideration.

The court distilled its ruling in a written opinion and order, where the court reasoned that

defendants had not yet made a record of their admission of liability but had made “merely a blanket

admission,” which defense counsel had characterized as a “judicial admission.” The court cited

favorably to plaintiff’s argument that a party cannot be forced to accept his adversary’s admission

in lieu of presenting evidence at trial.

The trial court’s ruling did not arise from bias or prejudice against the defense. Putting the

ruling into perspective, defendants admitted liability on the eve of trial and after a lengthy ESI

dispute where the parties’ joint expert discovered thousands of documents that defendants had

withheld or destroyed. Furthermore, as the court noted, while defendants had announced their

intent to “acknowledge responsibility,” they did not place that admission on the record or explain

the contours of the admission until the parties agreed on a joint statement of liability.

The caselaw supports the trial court’s ruling that plaintiff could admit evidence bearing on

liability despite defendants’ vague admission of responsibility on the eve of trial. Judicial

admissions should be construed narrowly. Hilgendorf v St John Hosp & Med Ctr Corp, 245 Mich

App 670, 690; 630 NW2d 356 (2001). Judicial admissions are “formal concessions in the

pleadings in the case or stipulations by a party or its counsel that have the effect of withdrawing a

fact from issue and dispensing wholly with the need for proof of the fact.” Id. at 689 (quotation

marks and citations omitted). In this case, defendants indicated they were “acknowledging

responsibility” for the incident on the eve of trial, but did not specify what facts they were

admitting or the contours of their admission on liability (i.e., whether the admission encompassed

both breach of duty and causation). The trial court prevented the question of liability from reaching

the jury, but did not limit the scope of evidence presented at trial.

It is true that “[w]here the testimony as to a fact is not disputed, the jury should be instructed

to find it accordingly.” Holbert v Staniak, 359 Mich 283, 290; 102 NW2d 186 (1960); Richardson

v Coddington, 45 Mich 338; 7 NW 903 (1881). However, it is a longstanding principle of

Michigan law that “[a] party can never be compelled to accept his adversary’s admission in lieu of

record evidence unless he chooses . . . .” John Hancock Mut Life Ins Co v Moore, 34 Mich 41, 42-

43 (1876). The trial court correctly concluded that plaintiff could not be forced to accept

defendants’ admission of responsibility in lieu of presenting record evidence. The court’s ruling

had a basis in fact and law and did not demonstrate bias.

3. VERDICT UNSUPPORTED BY RECORD

Next, as it relates to the second Palenkas factor, defendants argue the verdict was excessive

and did not fall within the limits of what reasonable minds would consider just compensation for

Miller’s injuries. We again disagree.

The Michigan Supreme Court has explained that the second Palenkas factor examines

whether the verdict was supported by the record. Gilbert, 470 Mich at 766. On the issue of

conscious pain and suffering, MCL 600.2922(6) provides that in a wrongful-death action, the

plaintiff may recover “reasonable compensation for the pain and suffering, while conscious,

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undergone by the deceased during the period intervening between the time of the injury and

death[.]” “ ‘The existence of a decedent’s conscious pain and suffering may be inferred from other

evidence that does not explicitly establish the fact.’ ” Klinke v Mitsubishi Motors Corp, 219 Mich

App 500, 514; 556 NW2d 528 (1996) (citation omitted). In Klinke, this Court held that the plaintiff

had presented evidence from which the jury could have inferred that the decedent experienced

conscious pain and suffering on the basis of the defendant’s expert testimony that the decedent

suffered a fatal head injury during the accident, and that she suffered a “ ‘significant injury.’ ” Id.

at 514-515.

The jury awarded plaintiff damages in the amount of $5.344 million as reasonable

compensation for the following categories of damages that Miller experienced for the 8 to 10

minutes that he was conscious: “physical pain and suffering,” “mental anguish,” and “fright and

shock.” Defendants argue that plaintiff’s proof on the issue of damages was limited to the 911

audio recording and the testimony of two witnesses—Caramia and Wilson. For Caramia,

defendants argue that her testimony on the issue was limited to her observation that Miller “looked

scared.” However, defendants overlook that Caramia testified about Miller’s life before the

accident, agreeing with plaintiff’s counsel that Miller was a “cool dude” who loved airplanes and

the game of golf, and who had “a good sense of humor.” Caramia also testified that during the

incident, Miller came out of the back-bedroom area of the home and said, “help me” twice.

Miller’s statement supports that he was aware he was in trouble and needed assistance.

Defendants are also critical of Dr. Spitz’s testimony, arguing that he did not quantify the

level of noneconomic damages that Miller experienced, leaving the jury to speculate that Miller

experienced the incident in the same way that a “neurotypical person” would under the

circumstances. However, Dr. Spitz testified that Miller’s request for help indicated that Miller

knew he needed help and was aware of his situation. Dr. Spitz later testified that, even with his

intellectual disabilities, Miller would have experienced “stress and panic” from the point he had

the sensation that he could not breathe up until the time he became unconscious. Dr. Spitz

confirmed that Miller would have experienced “some physical pain,” and that the primary

emotions he would have experienced were fear, anxiety, stress, and panic. He opined that this

period “was probably at least eight minutes or more” but that it was “hard to know the exact

timeframe.” In fact, even defendants acknowledge in their brief on appeal that Miller underwent

“respiratory distress” for “10 or less minutes.” And Dr. Dragovic also testified that Miller

experienced distress during the incident. This evidence supported that Miller experienced

conscious pain and suffering.

Defendants are also critical of the evidentiary value of the audio recording of the 911 call,

arguing that there was no evidence to support that any of the background sounds heard in the

recording were Miller choking. However, even assuming the background noises did not come

from Miller, the 911 recording was a compelling piece of evidence. Not only did the 911 recording

provide an indication on the length of time Miller was suffering, but the recording also

demonstrated the severity of the situation. Caramia was audibly upset during the call. She

repeatedly told the dispatcher to send help immediately, told Miller on numerous occasions to

“keep breathing,” and prayed over Miller’s body when he became unconscious.

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In sum, the evidence presented at trial, including Caramia’s testimony, Dr. Spitz’s

testimony, and the recording of the 911 call, supported that Miller underwent conscious pain and

suffering for about eight minutes before he became unconscious. We cannot fairly conclude that

the verdict exceeded the amount required to compensate for Miller’s pain and suffering.

4. EXCESSIVE VERDICT

Regarding the third Palenkas factor, defendants also argue that the verdict was not

comparable to the amounts awarded in similar cases within Michigan and other jurisdictions. We

again disagree.

In Gilbert, 470 Mich at 767, the Michigan Supreme Court explained that the key issue is

whether the verdict went beyond the range of what other juries determined to be reasonable

compensation. On this issue, this Court has held that “ ‘[a]n appellate court should not attempt to

reconcile widely varied past awards for analogous injuries which in the abbreviated appellate

discussion of them seem somewhat similar.’ ” Freed v Salas, 286 Mich App 300, 336; 780 NW2d

844 (2009) (quotation marks and citation omitted; alteration in original).

Plaintiff presents six illustrative verdicts to this Court, all of which involved mid-seven-

figure damages awards for conscious pain and suffering in the context of a choking death.

However, none of those cases are from Michigan. Of those verdicts, several are well into the seven

figures and involved deaths involving vulnerable individuals and choking deaths. In contrast,

defendants present 13 cases that they argue are comparable to this case, and in which the juries

awarded damages in the six figures or the lower seven figures for choking deaths, primarily in the

nursing-home context. Taking these comparable verdicts into consideration, the verdict here was

not grossly excessive. The verdict is within the range of what other juries had deemed to be

reasonable compensation for similar injuries, albeit on the higher end of that range. Because the

amount awarded is comparable to awards in similar cases, we cannot conclude that the verdict was

excessive.

C. REMITTITUR

Defendants next argue that the trial court abused its discretion by denying their request for

remittitur because the verdict was grossly excessive. We disagree.

We review a trial court’s decision on a remittitur request for an abuse of discretion.

Diamond, 265 Mich App at 692-693. “Remittitur is justified when a jury verdict exceeds the

highest amount the evidence will support.” Id. at 694. Remittitur requires an examination of

whether the verdict was the result of “improper methods, prejudice, passion, partiality, sympathy,

corruption, or mistake of law or fact, whether it was within the limits of what reasonable minds

would deem to be just compensation for the injury inflicted, and whether the amount actually

awarded is comparable to other awards in similar cases.” Id. Additionally, “[w]hen reviewing

such motions, this Court views the evidence in the light most favorable to the nonmoving party,

giving due deference to the trial court’s decision because of its ability to evaluate the credibility of

the testimony and evidence presented to the jury.” Landin v Healthsource Saginaw, Inc, 305 Mich

App 519, 546; 854 NW2d 152 (2014).

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The analysis on this involves considerable overlap with the analysis of the second and third

Palenkas factors outlined earlier. For the reasons discussed earlier, the verdict was not the result

of improper methods, prejudice, passion, partiality, sympathy, corruption, or a mistake of law or

fact. And the verdict was not excessive considering the evidence presented at trial and the

comparable jury-verdicts. Remittitur is not warranted.

D. EXPERT TESTIMONY AND JURY INSTRUCTIONS

1. DR. DRAGOVIC’S TESTIMONY

Defendants first argue in relation to their evidentiary challenge that the trial court erred by

limiting the scope of Dr. Dragovic’s trial testimony. We disagree.

We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.

Craig ex rel Craig v Oakwood Hosp, 471 Mich 67, 76; 684 NW2d 296 (2004). Any error in the

admission of evidence does not warrant appellate relief unless the appellant can establish that the

failure to act would be inconsistent with substantial justice or affects a substantial right of the

appellant. See id. Regarding defendants’ challenge to the jury instructions, we review the issue

de novo. Lewis v LeGrow, 258 Mich App 175, 211; 670 NW2d 675 (2003). We review for an

abuse of discretion a trial court’s ruling on whether a jury instruction applies in a case and is

accurate. Id.

The issue centers on whether Dr. Dragovic’s testimony was the product of reliable

principles and methods. A trial court considering the admission of expert testimony under

MRE 702 acts as a gatekeeper and has the responsibility to ensure the testimony is relevant and

reliable. People v Lemons, ___ Mich ___, ___; ___ NW3d ___ (2024) (Docket No. 163939); slip

op at 13. The proponent of the evidence must establish the relevance and admissibility of the

evidence. Id. at ___; slip op at 13. For purposes of MRE 702, the court must focus on the

principles and methodology employed by the expert, and not on the conclusions generated by the

principles and methodology. Id. at ___; slip op at 13. The proponent of the expert testimony must

“ ‘show that any opinion based on those data expresses conclusions reached through reliable

principles and methodology.’ ” Id. at ___; slip op at 13-14 (quotation marks and citation omitted).

“ ‘[W]hen evaluating the reliability of a scientific theory or technique, courts consider certain

factors, including but not limited to whether the theory has been or can be tested, whether it has

been published and peer-reviewed, its level of general acceptance, and its rate of error if known.’ ”

Id. at ___; slip op at 14 (citation omitted). The Michigan Supreme Court has recently reaffirmed,

in the context of a medical malpractice case, that the use of peer-reviewed, published literature is

not always necessary or sufficient to establish the requirements outlined in MRE 702, particularly

when the situation is so rare that there is no supportive literature available. Danhoff v Fahim, ___

Mich ___, ___; ___ NW3d ___ (2024) (Docket No. 163120); slip op at 2-3. However, the lack of

supporting literatures remains “an important but not dispositive factor.” Id. at___; slip op at 17.

Here, Dr. Dragovic’s testimony was taken by deposition in advance of trial because he may

have been unavailable to testify in person due to a scheduled vacation. Because of this

arrangement, by the time of trial, the court had already deemed portions of this expert’s testimony

inadmissible under MRE 702 and MCL 600.2955(1) for a lack of supporting literature.

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Maintaining those same exclusions on Dr. Dragovic’s in-person testimony was not an abuse of

discretion.

As our Supreme Court recently noted, the lack of supporting literature and any other form

of support for an expert’s opinion will render that opinion unreliable under MRE 702. Danhoff,

___ Mich at ___; slip op at 17-18. Dr. Dragovic relied solely on his background and experience,

“which is generally not sufficient to argue that an expert’s opinion is reliable.” Id. at ___; slip op

at 19 (quotation marks and citation omitted). Defendants did not provide any information in

advance of trial supporting the factors outlined in MCL 600.2955(1). See MCL 600.2955(1); MRE

702. Therefore, the trial court did not abuse its discretion by prohibiting Dr. Dragovic’s testimony

regarding whether Miller had a seizure causing his death, or whether Miller would have

experienced less conscious pain and suffering because of his intellectual disabilities.6

2. JURY INSTRUCTIONS

Next, defendants argue the trial court erred in relation to M Civ JI 17.01 and in relation to

the modifications to M Civ JI 45.01 and M Civ JI 45.02. We disagree.

“The trial court’s jury instructions must include all the elements of the plaintiffs’ claims

and should not omit any material issues, defenses, or theories of the parties that the evidence

supports.” Lewis, 258 Mich App at 211. “If, on balance, the theories of the parties and the

applicable law are adequately and fairly presented to the jury, no error requiring reversal occurs.”

Id. Reversal is warranted only when the failure to do so would be inconsistent with substantial

justice. Id. at 211-212.

Defendants first argue that the trial court erred in relation to the application of M Civ JI

17.01, which relates to an admission of liability by the defense. M Civ JI 17.01 provides:

The defendant has admitted that [ he / she ] is liable to the plaintiff for any [ injury

/ damages ] which [ he / she ] caused. You are to decide only (what [ injuries /

damages ] were caused by defendant and) the amount to be awarded to the plaintiff

for such [ injury / damages ]. [Alteration omitted.]

The Comment to this jury instruction adds: “The jury should not be permitted to consider

the question of liability where it has been admitted. It is reversible error to submit any issue to the

jury which has not been questioned or has been admitted. Richardson v Coddington, 45 Mich 338;

7 NW 903 (1881); Holbert v Staniak, 359 Mich 283; 102 NW2d 186 (1960).” M Civ JI 17.01,

Comment.

6

Defendants do not present the evidence on which they would have relied at trial to support Dr.

Dragovic’s opinion. “A party may not simply announce a position and leave it to this Court to

make the party’s arguments and search for authority to support the party’s position.” Seifeddine v

Jaber, 327 Mich App 514, 519; 934 NW2d 64 (2019).

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The trial court instructed the jury as follows: “The Defendants have admitted liability; that

they are liable to the Plaintiff for any injuries, damages which they caused. You are to decide only

the amount to be awarded to Plaintiff for such injuries and damages.” While the language of the

instruction differed slightly from the standard language in M Civ JI 17.01, the content of the

instruction is essentially the same. Defendants argue that the trial court erred by ruling that, either

plaintiff could admit at trial the evidence supporting liability or the parties would have to agree on

a joint statement of liability. Defendants cite the Comment to M Civ JI 17.01 in support of their

argument.

However, as discussed earlier, the trial court correctly concluded that plaintiff could not be

forced to accept defendants’ vague admission of responsibility in lieu of presenting evidence

bearing on liability at trial, particularly when the parties had not yet agreed to a joint statement that

outlined the scope of the admission. The court concluded that the question of liability was no

longer on the table, which was in line with the Comment to M Civ JI 17.01. No error occurred in

relation to this jury instruction.

Next, defendants argue the trial court erred by accepting plaintiff’s version of M Civ JI

45.01, which omitted the final two sentences relating to the real parties in interest. Before trial,

defendants advocated for a version of M Civ JI 45.01 that would have informed the jury of the

names of the members of Miller’s Estate and provided, “They are the real parties in interest in this

lawsuit and in that sense are the real plaintiffs, whose damages you are to determine if you decide

for the personal representative of the estate of Aaron Kelly Miller.” The trial court’s jury

instruction omitted information about the members of Miller’s Estate. The omission of this

information did not prejudice the defense, particularly where defense counsel argued that the

personal representative should not become a multimillionaire because of this action. He later asked

the jury to consider “why is that something that should be paid to the estate to compensate for

something that happened back in 2017 and paid over today for that event[?]” Defendants had the

opportunity to argue that the money would be awarded to Miller’s Estate. The idea that plaintiff

may be the only person who stood to benefit from the lawsuit was a fact that defendants used to

their advantage at trial. Therefore, even assuming the omission of the information about the

members of the Estate was an error, reversal is not warranted because the change did not affect the

outcome of trial.

Finally, defendants challenge the trial court’s instruction on wrongful-death damages.

M Civ JI 45.02 provides, in relevant part:

If you decide the plaintiff is entitled to damages, you shall give such amount as you

decide to be fair and just, under all the circumstances, to those persons represented

in this case. Such damages may include the following items, to the extent you find

they have been proved by the evidence:

* * *

(2) *(reasonable compensation for the pain and suffering undergone by [ name of

decedent ] while [ he / she ] was conscious during the time between [ his / her ]

injury and [ his / her ] death)

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* * *

Which, if any, of these elements of damage has been proved is for you to decide,

based upon evidence and not upon speculation, guess, or conjecture. The amount

of money to be awarded for certain of these elements of damage cannot be proved

in a precise dollar amount. The law leaves such amount to your sound judgment.

Your verdict must be solely to compensate for the damages and not to punish the

defendant.

The Comment to M Civ JI 45.02 provides, in relevant part, “Where appropriate, elements

of damages such as those listed in M Civ JI 50.02 may be inserted into this instruction.” M Civ JI

50.02 directs the court to insert any of the enumerated elements relating to the damages for pain

and suffering that are applicable to the circumstances of the case. These elements include physical

pain and suffering, mental anguish, and fright and shock among others.

Defendants do not address M Civ JI 50.02 in their brief on appeal and instead argue that

the modification to allow for categories of damages (physical pain and suffering, mental anguish,

fright and shock) did not properly inform the jury of the applicable law. However, defendants

overlook that the jury instructions expressly permit this modification by incorporating M Civ JI

50.02. See Taylor v Mich Power Co, 45 Mich App 453, 457; 206 NW2d 815 (1973) (holding in a

wrongful-death action that the trial court did not err by adding the words “mental anguish, “fright,”

and “shock” to the jury instruction about conscious pain and suffering) (quotation marks omitted).

Considering this authority, the trial court had discretion to allow the addition of the categories of

conscious pain and suffering. Therefore, the trial court did not commit a legal error in relation to

the jury instructions.

E. DEFENDANTS’ MOTION TO DISQUALIFY

Defendants also argue that the original trial judge who oversaw the trial demonstrated bias

and an appearance of impropriety throughout the proceedings and particularly leading up to the

trial. We disagree.

“In reviewing a motion to disqualify a judge, this Court reviews the trial court’s findings

of fact for an abuse of discretion and reviews the court’s application of those facts to the relevant

law de novo.” In re Contempt of Henry, 282 Mich App 656, 679; 765 NW2d 44 (2009). Regarding

the procedure for moving to disqualify the trial judge, MCR 2.003(D) provides in relevant part:

(1)(a) To avoid delaying trial and inconveniencing the witnesses, all

motions for disqualification must be filed within 14 days of the discovery of the

grounds for disqualification. If the discovery is made within 14 days of the trial

date, the motion must be made forthwith.

* * *

(d) Untimely motions in the trial court, the Court of Appeals, and the

Supreme Court may be granted for good cause shown. If a motion is not timely

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filed in the trial court, the Court of Appeals, or the Supreme Court, untimeliness is

a factor in deciding whether the motion should be granted.

(2) In any motion under this rule, the moving party must include all grounds

for disqualification that are known at the time the motion is filed. An affidavit must

accompany the motion.

(3)(a) For courts other than the Supreme Court, the challenged judge shall

decide the motion. If the challenged judge denies the motion,

(i) in a court having two or more judges, on the request of a party, the

challenged judge shall refer the motion to the chief judge, who shall decide the

motion de novo[.]

We conclude the chief judge reached the correct conclusion that defendants’ motion was

untimely under MCR 2.003(D)(1)(a). Defendants needed to file the motion within 14 days of

May 27, 2022 (or by June 10, 2022), or at the latest within 14 days of June 1, 2022 (or by June 15,

2022). They did not file their motion until June 17, 2022, so it was untimely. Defendants did not

demonstrate good cause for the delay. We conclude the chief judge did not abuse his discretion

by ruling the motion untimely under MCR 2.003(D).

F. EVIDENTIARY RULINGS

Defendants next argue that the trial court abused its discretion when the court (1) granted,

in relevant part, plaintiff’s motion in limine to preclude reference to Miller having a seizure

disorder, (2) denied defendants’ motion in limine to limit Dr. Spitz’s expert testimony to only

cause of death, (3) denied defendants’ motion in limine to preclude introduction of the LARA and

ORR reports, and (4) denied the motion in limine to preclude evidence of Caramia’s mental

condition at trial. We disagree with each argument.

1. EVIDENCE OF MILLER’S SEIZURE DISORDER

The proponent of evidence has the burden to establish its relevance and admissibility.

Elher v Misra, 499 Mich 11, 22; 878 NW2d 790 (2016). MRE 802 provides that hearsay is not

admissible at trial unless the rules of evidence provide otherwise. MRE 801 explains that hearsay

is a statement a declarant makes while not testifying at the trial or hearing, and that a party offers

to prove the truth of the matter asserted. MRE 801(c).

Defendants’ argument is that the trial court abused its discretion by ruling that admission

of the past-medical-history section of a 2011 emergency-room visit report was inadmissible

hearsay and not subject to admission under a hearsay exception. The parties do not dispute that

the statements at issue were hearsay under MRE 801 and MRE 802. Instead, defendants maintain

the statement fell within one of the hearsay exceptions, specifically MRE 803(4) or MRE 803(6).

At the time of the ruling in this case, MRE 803(4) provided that the court may allow

admission of “[s]tatements made for purposes of medical treatment or medical diagnosis in

connection with treatment and describing medical history, or past or present symptoms, pain, or

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sensations, or the inception or general character of the cause or external source thereof insofar as

reasonably necessary to such diagnosis and treatment.” Merrow v Bofferding, 458 Mich 617, 628;

581 NW2d 696 (1998). Whether the document itself was admissible depends on an analysis of

MRE 803(6) (the business-record exception), which at the time of trial provided, in relevant part:

A memorandum, report, record, or data compilation, in any form, of acts,

transactions, occurrences, events, conditions, opinions, or diagnoses, made at or

near the time by, or from information transmitted by, a person with knowledge, if

kept in the course of a regularly conducted business activity, and if it was the regular

practice of that business activity to make the memorandum, report, record, or data

compilation, all as shown by the testimony of the custodian or other qualified

witness, or by certification that complies with a rule promulgated by the supreme

court or a statute permitting certification, unless the source of information or the

method or circumstances of preparation indicate lack of trustworthiness. [MRE

803(6), as amended May 21, 2001, 464 Mich clxxvii-clxxviii (2001).]

In Solomon v Shuell, 435 Mich 104, 132; 457 NW2d 669 (1990) (opinion by ARCHER, J),

the Michigan Supreme Court addressed the concept of trustworthiness in the context of records

subject to a hearsay exception. Justice Archer explained in his initial lead opinion that

“trustworthiness is presumed, subject to rebuttal, when the party offering the evidence establishes

the requisite foundation.” Id. at 125-126. That rebuttal occurs “where the source of information

or the method or circumstances of preparation indicate lack of trustworthiness.” Id. at 126

(quotation marks and citation omitted). When records are prepared in anticipation of litigation or

there is a motivation to misrepresent the truth, the inherent trustworthiness in MRE 803(8) no

longer applies, even though the document may technically meet the requirements of the rule. Id.

The trial court correctly concluded that the statement in the 2011 emergency-room record

was inadmissible hearsay because it lacked trustworthiness. The record stated that Miller was

admitted to the hospital after choking on a piece of steak. The court further examined the “PAST

MEDICAL HISTORY” section, where the report stated, in relevant part, “Seizures, however

caregiver states he has not had one in a long time.” The report does not identify the caregiver.

Miller also did not make these statements himself. Therefore, as the trial court concluded, this

source of information indicated a lack of trustworthiness because the person providing the

information is unknown. Therefore, the court did not abuse its discretion in relation to admission

of evidence on Miller’s history of seizures.

2. DR. SPITZ’S EXPERT TESTIMONY

The next issue is whether the trial court abused its discretion by denying defendants’

request to preclude Dr. Spitz from testifying about Miller’s conscious pain and suffering. The trial

court did not rule definitively in advance of trial on whether Dr. Spitz was qualified to render an

expert opinion about Miller’s conscious pain and suffering. Rather, the court ruled that plaintiff

could establish a foundation for Dr. Spitz’s expertise at trial.

During the second day of trial, plaintiff’s counsel laid a foundation for Dr. Spitz’s expertise

in forensic pathology and moved to have Dr. Spitz qualified as an expert. Defense counsel

responded, “No objection, Your Honor.” So the trial court qualified Dr. Spitz as an expert in

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forensic pathology. Defense counsel did not renew his objection to Dr. Spitz’s testimony about

conscious pain and suffering during his testimony on the subject. Defense counsel’s indication

that he had no objection to Dr. Spitz’s testimony in lieu of renewing his challenge to the scope of

Dr. Spitz’s testimony served to waive the issue on appeal. See Reed Estate v Reed, 293 Mich App

168, 176; 810 NW2d 284 (2011). Even if defendants had not waived the issue, this Court has

indicated in previous cases that the issue of pain or suffering falls within the expertise of a forensic

pathologist. People v Unger, 278 Mich App 210, 252; 749 NW2d 272 (2008); Byrne v Schneider’s

Iron & Metal, Inc, 190 Mich App 176, 180-181; 475 NW2d 854 (1991).

As it relates to defendants’ contention that Dr. Spitz had not reviewed any records relating

to Miller’s intellectual impairments before his deposition, by the time of trial, Dr. Spitz had

reviewed Miller’s medical records, the 911 call audio recording, the medical-examiner reports, the

death certificate, and multiple deposition transcripts. While defendants argue that Dr. Spitz was

not prepared for his deposition, which occurred about seven months before trial, defendants do not

argue on appeal that Dr. Spitz had not read enough materials before he testified at trial. For this

reason, the trial court did not abuse its discretion in relation to the admission of Dr. Spitz’s

testimony.

3. LARA AND ORR REPORTS

Additionally, defendants argue that the information contained in the LARA and ORR

reports was untrustworthy, for purposes of MRE 803(6), because the investigators obtained some

information from plaintiff’s counsel. They add that the death certificate, which was also admitted

at trial, was untrustworthy because Miller’s sister influenced the medical examiner’s decision on

cause of death. Defendants maintain that because of the trial court’s ruling allowing some of these

materials to be admitted at trial, defendants were forced to incorporate information from the reports

into the joint statement of admitted liability. We disagree with defendants’ argument.

Regarding the trustworthiness of the reports, plaintiff’s counsel did not deny that the

investigators contacted him on January 30, 2018, March 5, 2018, and March 6, 2018, requesting

documents. On March 5, 2018, the state investigator contacted plaintiff’s counsel requesting more

documents. Counsel provided the documents, noting in his e-mail that the 911 call was “very

helpful” and that he could send a recording, if necessary. These contacts were not initiated by

plaintiff’s counsel and were for the limited purpose of seeking relevant documentation. While

plaintiff’s counsel did proactively offer the 911 audio recording, there is no indication that his

offer biased the investigation in any way. These limited contacts do not bear on the inherent

trustworthiness of the ORR and LARA reports. As the trial court further reasoned, the

investigators had no connection to the case other than creating their reports as part of their job

duties. Thus, there was no reason to suspect that the reports lacked trustworthiness. Therefore,

the trial court’s ruling that the reports fell within the hearsay exception was not outside the range

of reasonable and principled outcomes.

Defendant also argues that the trial court overlooked the fact that Miller’s sister, Jennifer

Frankford, influenced the cause of death identified on Miller’s death certificate. During her

deposition, Frankford testified that she spoke with the medical examiner who prepared Miller’s

death certificate. She testified that he was under the impression that Miller had “naturally pass[ed]

away,” and Frankford offered to show him a video of how physically sound Miller was. After that

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conversation, the medical examiner amended the death certificate to identify asphyxiation and

airway obstruction as the causes of Miller’s death.

Even accepting Frankford’s testimony as true, there was no dispute at trial that Miller did

not die of natural causes. Nor was there any dispute that he died of asphyxiation. The dispute was

over whether he died because of a seizure, where a foamy substance may have entered his airway,

or whether he choked on food he obtained from somewhere in the home. The medical examiner

had no reason to misrepresent the information in the death certificate. Nor did Frankford testify

that the medical examiner changed the death certificate because of what she told him. Finally, the

court did not preclude defendants from calling Frankford or the medical examiner as witnesses at

trial to examine how the discussion may have influenced the death certificate. Defendants chose

instead to admit liability. Therefore, the trial court did not abuse its discretion by permitting the

admission of the death certificate at trial.

Finally, regarding defendants’ argument that the reports contained hearsay within hearsay,

as defined in MRE 805, the trial court conducted a thorough assessment of the reports and struck

several statements within the reports as inadmissible hearsay-within-hearsay. On appeal,

defendants do not point out what additional statements the trial court should have stricken. “A

party may not simply announce a position and leave it to this Court to make the party’s arguments

and search for authority to support the party’s position.” Seifeddine v Jaber, 327 Mich App 514,

519; 934 NW2d 64 (2019). For these reasons, the trial court’s ruling on the admissibility of the

ORR and LARA reports and materials was not an abuse of discretion.

4. CARAMIA’S MENTAL-HEALTH CONDITION

Defendants also argue the trial court abused its discretion by permitting plaintiff to admit

evidence bearing on Caramia’s mental condition, which appeared in the joint statement of admitted

liability. This argument is without merit because the trial court did not rule on this motion in

limine, instead holding the final decision in abeyance pending a final ruling on the ESI dispute. If

anything, the court’s limited ruling favored defendants because the court restricted the scope of

the admissible documents as follows: “Evidence that was not in possession of Angel’s Place is

excluded as not relevant to the underlying case. Previously, such information was relevant to her

ability to sit for a deposition.” The court never had the opportunity to rule on the merits of the

motion because the parties stipulated to a joint statement of admitted liability that contained

information about Caramia’s mental health.

A stipulation is an agreement, admission, or concession made by the parties in the course

of a judicial proceeding. Bd of Co Road Comm’rs for the Co of Eaton v Schultz, 205 Mich App

371, 378-379; 521 NW2d 847 (1994). Stipulations of fact are binding on the court. Id. at 379.

Because defendants stipulated to admission of certain facts at trial bearing on Caramia’s mental

and physical conditions before the court had ruled on the issue, defendants cannot now raise the

issue on appeal. See Glen Lake-Crystal River Watershed Riparians v Glen Lake Ass’n, 264 Mich

App 523, 529; 695 NW2d 508 (2004) (“ ‘A party cannot stipulate a matter and then argue on

appeal that the resultant action was error.’ ”) (citation omitted); Weiss v Hodge (After Remand),

223 Mich App 620, 636; 567 NW2d 468 (1997) (“Where, as here, parties stipulate an arrangement

that limits one party’s rights to less than that which is otherwise required, that party may not later

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complain on appeal about this restriction.”). Therefore, the trial court did not abuse its discretion

in relation to these pretrial evidentiary rulings.

G. DISCOVERY SANCTIONS AWARD

Defendants next argue the trial court abused its discretion by awarding attorney fees and

costs as discovery sanctions for Angels Place’s violation of discovery in relation to ESI. We

disagree.

We review a trial court’s ruling on a motion for discovery sanctions for an abuse of

discretion. Hardrick v Auto Club Ins Ass’n, 294 Mich App 651, 659; 819 NW2d 28 (2011).

Additionally, a court’s exercise of its inherent power to sanction a party for failing to preserve

evidence it knew or should have known was relevant before litigation commenced is reviewed for

an abuse of discretion. Bloemendaal v Town & Country Sports Ctr, Inc, 255 Mich App 207, 212;

659 NW2d 684 (2002).

As a threshold matter, plaintiff argues that this issue is not within the jurisdictional scope

of the appeal in Docket Nos. 365702 and 365703 because it involves a question about the court’s

imposition of fees and costs as discovery sanctions, which plaintiff argues was a separate order

appealable as of right. See MCR 7.202(6)(a)(iv) (defining a “final order” as, in relevant part, “a

postjudgment order awarding or denying attorney fees and costs under court rule or other law”).

The appeal “is limited to the portion of the order with respect to which there is an appeal of right.”

MCR 7.203(A)(1).

In John J Fannon Co v Fannon Prod, LLC, 269 Mich App 162, 165-166; 712 NW2d 731

(2005), this Court addressed a similar situation in which the trial court granted a motion for

sanctions before deciding the amount of sanctions. This Court held that “an order that merely

grants the imposition of sanctions is not a ‘final order’ if the amount of fees and costs remains to

be determined.” Id. at 166. We are also persuaded by this Court’s unpublished opinion in Zirnhelt

v McCall, unpublished per curiam opinion of the Court of Appeals, issued March 10, 2022 (Docket

No. 354776), pp 2, 6. In Zirnhelt, this Court held that it had jurisdiction over the issue of attorney

fees where the fees were awarded as a sanction in the final order, but the court decided the amount

of sanctions in a later order. Although nonbinding, Zirnhelt is persuasive. See MCR 7.215(C)(1);

Cox v Hartman, 322 Mich App 292, 307; 911 NW2d 219 (2017).

Here, the June 30, 2022 order imposing discovery sanctions was not a postjudgment order.

The court ruled in May 2022 that it would grant sanctions in the form of fees, costs, and a

presumptive jury instruction. The June 30, 2022 opinion was the court’s written order distilling

its ruling from the bench. Because of several disputes about the language of the judgment, the

court did not enter the judgment until mid-October 2022. The judgment stated that plaintiff would

submit and file a bill of costs and attorney fees in relation to the motion for sanctions, and

defendants would have the opportunity to file objections. Later, after the judgment was entered,

the trial court entered an order regarding the amount of sanctions, and a separate order denying

plaintiff’s motion for frivolous-defense sanctions. Those latter two orders have been appealed

separately in Docket Nos. 365986, 365989, 366143, and 366145. Because the court’s ruling on

discovery sanctions came before the court entered the judgment (which was the order appealed),

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this award of discovery sanctions falls within the scope of this Court’s jurisdiction in Docket Nos.

365702 and 365703.

On the merits, we conclude the trial court did not abuse its discretion by granting sanctions

in the form of attorney fees and costs, as well as a presumptive jury instruction, considering the

evidence of Angels Place’s discovery violations.

To start, the trial court ruled that under either version of the court rule, plaintiff was entitled

to sanctions. We agree. Until January 1, 2020, MCR 2.302(B)(5) provided:

A party has the same obligation to preserve electronically stored information as it

does for all other types of information. Absent exceptional circumstances, a court

may not impose sanctions under these rules on a party for failing to provide

electronically stored information lost as a result of the routine, good-faith operation

of an electronic information system. [MCR 2.302(B)(5), as amended October 1,

2014, 497 Mich clxii-clxiii (2015).]

Under the current version of the court rules, MCR 2.302(B)(5) simply states, “[a] party has the

same obligation to preserve ESI as it does for all other types of information.” Thus, under both

iterations of the court rule, Angels Place had the obligation to preserve ESI.

The version of MCR 2.313(E) that applied before January 1, 2020 provided:

Absent exceptional circumstances, a court may not impose sanctions under these

rules on a party for failing to provide electronically stored information lost as a

result of the routine, good-faith operation of an electronic information system.

[MCR 2.313(E), as amended December 16, 2008, 482 Mich cxxii (2009).]

The current version of MCR 2.313(C)(1) and (D) provides:

(C)(1) If a party fails to provide information or identify a witness as required by

MCR 2.302(A) or (E), the party is not allowed to use that information or witness to

supply evidence on a motion, at a hearing, or at a trial, unless the failure was

substantially justified or is harmless. In addition to or instead of this sanction, the

court, on motion and after giving an opportunity to be heard:

(a) may order payment of the reasonable expenses, including attorney fees,

caused by the failure;

(b) may inform the jury of the party’s failure; and

(c) may impose other appropriate sanctions, including any of the orders

listed in MCR 2.313(B)(2)(a)-(c).

* * *

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(D) If ESI that should have been preserved in the anticipation or conduct of

litigation is lost because a party failed to take reasonable steps to preserve it, and it

cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information,

may order measures no greater than necessary to cure the prejudice or

(2) only upon finding that the party acted with the intent to deprive another

party of the information’s use in the litigation, may order appropriate remedies,

including:

(a) a presumption that the lost information was unfavorable to the party;

(b) a jury instruction directing that the jury may or must presume the

information was unfavorable to the party; or

(c) dismissal of the action or entry of a default judgment.

In addition to the legal standard outlined in the court rules, the court’s discovery sanction

should be both “proportionate and just.” Hardrick, 294 Mich App at 662 (quotation marks and

citation omitted). Under MCR 2.313(B)(2), when a party fails to comply with a court order, “the

court may require the party failing to obey the order or the attorney advising the party, or both, to

pay the reasonable expenses, including attorney fees, caused by the failure.” See also

MCR 2.313(B)(2), as amended December 16, 2008, 482 Mich cxxii (2009) (containing the same

relevant language but providing that the court “shall” require the payment of fees). Both versions

of the court rule required a showing of intent, i.e., that the deletion did not result from a routine

operation of an ESI system. We conclude that under either version of the Michigan Court Rules,

the record supported that Angels Place engaged in ESI violations warranting discovery sanctions.

Defendants argue that the trial court did not have the authority to sanction them because

the court never entered a written order to compel discovery. The general rule is that a trial court

has the inherent authority to penalize misconduct through sanctions. Persichini v William

Beaumont Hosp, 238 Mich App 626, 639-640; 607 NW2d 100 (1999). The trial court also has

“ ‘the inherent power of a court to control the movement of cases on its docket by a variety of

sanctions.’ ” Id. at 640 (citation omitted). The inherent authority allows the trial court the ability

to fashion a remedy that “promotes fairness and justice.” Tolas Oil & Gas Exploration Co, ___

Mich App at ___; slip op at 11 (citation omitted). The inherent authority to sanction litigants is

broad and includes even the power to dismiss an action. Maldonado v Ford Motor Co, 476 Mich

372, 376; 719 NW2d 809 (2006).

As it relates to the preservation of information, “[a] litigant is under a duty to preserve

evidence that it knows or reasonably should know is relevant to [an] action.” Komendat v Gifford,

334 Mich App 138, 150; 964 NW2d 75 (2020) (quotation marks and citation omitted; second

alteration in original). When a litigant fails to abide by this rule, the court may impose sanctions,

including a jury instruction on spoliation. Id.

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Not only did defendants have a general obligation to preserve evidence relevant to the

litigation, but the court specifically warned defense counsel on two occasions that Angels Place

must preserve any ESI relating to the litigation. To start, during a September 2021 evidentiary

hearing, the court informed defense counsel that if e-mails relating to Caramia’s job performance

were not produced via court order that were responsive to the discovery requests, then “there’s

going to be sanctions, severe sanctions.” The court added:

And [defense counsel], your clients are not to have a manual or automatic deletions

[sic] of anything. All of that should have been frozen at the time, but certainly the

Court does not want these things to be erased or deleted at this time, and all of those

provisions should be in the stock room.

The court explained:

That will be a problem . . . . If it comes forward to me that this information isn’t

being provided, it’s going to be a problem. You have control over the servers, the

witnesses. This stuff was requested. It wasn’t produced.

Then, a couple of months later, when the issue of e-mails responsive to plaintiff’s duces

tecum deposition notices was raised, the court warned defense counsel, “I want you to provide

them with that information. It should have been done long ago.” The court explained that if the

documents were not produced that were responsive to the duces tecum deposition notices, “there

will be sanctions.” Additionally, to the extent that the withheld records included e-mails, the court

ordered Angels Place to produce the e-mails in its possession responsive to the duces tecum

deposition notices.

While it is true that a court speaks through its written orders, rather than its oral

pronouncements, Contempt of Henry, 282 Mich App at 678, the court’s oral rulings may have the

same effect as a written order when, as an example, “an oral ruling clearly communicates the

finality of the court’s pronouncement.” Arbor Farms, LLC v GeoStar Corp, 305 Mich App 374,

388; 853 NW2d 421 (2014). “When assessing whether an oral ruling has equal effect to that of a

written order, we consider whether the oral ruling contains indicia of formality and finality

comparable to that of a written order.” Id. In this case, trial court’s oral pronouncements had the

same effect as a written order, particularly because the court’s statements were clear, formal, and

indicated finality on the issue of whether defendants had a duty to preserve evidence, including e-

mails. To the extent that no written order was entered, the fault lies with defendants for not

following the court’s directives to prepare a written order.7 Therefore, defendants’ argument that

no order existed compelling the preservation or production of documents lacks merit.

7

At the November 10, 2021 hearing on plaintiff’s motion for sanctions, the trial court “instructed

and directed [d]efendants’ counsel as follows: ‘I want an order immediately to make sure that your

clients are not deleting anything. I want you to provide them with that information. It should have

been done long ago.’ ” The trial court also recognized in the June 30, 2022 Opinion and Order

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Defendants next argue that there was no evidence that any substantive information was lost

as the result of the deletions. We disagree.

To start, Dalman’s March 16, 2022 report reflected that Angels Place deleted more than

1,200 items. Dalman determined that files were deleted and last accessed on December 8, 2021,

which was the same date defendants moved for summary disposition. During the evidentiary

hearing, Dalman testified that he was able to determine that someone at Angels Place had wiped

two pink SanDisk flash drives clean intentionally because they had to use a specific software to do

so. The documents deleted on December 8, 2021 were substantive in nature. They included staff-

meeting agendas, reports for another Angels Place group home, and other documents.

Dalman located one hard drive, which Angels Place had not provided to plaintiff’s counsel,

containing several folders labeled “corporate,” “confidential,” and “Joliat Incidents.” Those

folders were last modified on January 18, 2019 (which was a date defense counsel met with Angels

Place’s representatives). Dalman also testified, on the basis of the warranty information for the

computer, that it went into service on January 12, 2018 (the same day that some e-mails defendants

produced untimely were time stamped). Dalman denied turning over any attorney-client privileged

documents to plaintiff’s counsel or that the e-mails he reviewed involved defense counsel.

For her part, Allen testified that when a flash drive is returned, Allen, or someone on her

team, routinely deletes the information on it so it can be used again. However, Allen later admitted

that she was on medical leave on December 8, 2021, when the flash drives were deleted.

Regarding the e-mails that contained a January 12, 2018 time stamp, Allen testified she was on

leave until January 13, 2018, and she was not aware of printing the e-mails containing that date.

Allen also testified that she had never been informed that Angels Place was prohibited from

deleting files during the pendency of this litigation. Moreover, the Joliat Home computer,

including the hard drive, was replaced just days after the incident and on the same day several key

e-mails were printed.

Finally, the documents that Dalman uncovered in his ESI search were relevant. They

included a January 24, 2018 document that Angels Place’s Human Resources Director, Andrew

Cisco, created and that was entitled “ ‘C. Caramia Information.pdf,’ ” which contained information

about Caramia’s background with Angels Place and her work restrictions. The document included

a section entitled “Land mines” containing information about Caramia’s job performance. The

evidence Dalman uncovered also included a September 11, 2017 e-mail discussing the fact that

Caramia’s annual appraisal would be “horrible.” This evidence and testimony show that

substantive evidence was lost or withheld as the result of the ESI violations.

Defendants also argue that the evidence presented at the evidentiary hearing did not support

that the deletions were anything more than routine or that they were part of an intentional action

to deprive plaintiff of the use of the information. However, the relevant documents were deleted,

in large part, on the same day defendants moved for summary disposition arguing a lack of factual

that “while a written discovery order was not issued, the Court issued specific unequivocal

directives, which were violated.”

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dispute on liability, and while Angels Place’s IT specialist was on medical leave. The deletions

were substantial and totaled more than 1,200 items. Moreover, Angels Place deleted documents

the same day that its representatives met with defense counsel and provided additional responsive

documents. Angels Place also printed out several relevant e-mails that were not produced in

discovery on the same day they replaced the Joliat Home computer, which happened to be about

two weeks after Miller’s death. These facts supported the trial court’s ruling that the ESI was not

lost as the result of routine, good-faith operations of an electronic information system.

Next, defendants argue that no prejudice resulted from their deletion of the information on

the flash drives and withholding of over 1,200 documents. While the trial court did not address

this factor expressly in its opinion, the court acknowledged that the failure to produce evidence

may prejudice another party by eliminating their ability to investigate or rebut evidence. The court

explained that the evidence supported that defendants withheld “highly relevant discovery

material” for about four years. Plaintiff maintained that she was prejudiced by the amount of time,

money, and effort spent attempting to obtain the discovery, which warranted monetary sanctions.

These facts supported a finding of prejudice. For these reasons, the trial court’s decision to grant

discovery sanctions is affirmed.

III. DOCKET NOS. 365986, 365989, 366143, AND 366145

A. FRIVOLOUS-DEFENSE SANCTIONS

Plaintiff argues in Docket Nos. 365986, 365989, 366143, and 366145 that the trial court

abused its discretion by denying her request for attorney fees and costs as frivolous-defense

sanctions because Angels Place had no reasonable basis to believe that the facts underlying its

legal position were true. We disagree.

We review a trial court’s finding on whether a defense was frivolous for clear error. In re

Costs and Attorney Fees, 250 Mich App 89, 94; 645 NW2d 697 (2002). “ ‘A decision is clearly

erroneous if this Court is left with a definite and firm conviction that a mistake has been made.’ ”

Id. (citation omitted). We review for an abuse of discretion the trial court’s decision on an

attorney-fee award. See Smith v Khouri, 481 Mich 519, 526; 751 NW2d 472 (2008) (opinion by

TAYLOR, C.J.). We review de novo questions of law. Pirgu v United Servs Auto Ass’n, 499 Mich

269, 274; 884 NW2d 257 (2016).

Michigan follows the American rule of attorney fees and costs, which provides that

attorney fees generally are not recoverable from the losing party. Haliw v Sterling Heights, 471

Mich 700, 706-707; 691 NW2d 753 (2005). An exception occurs when the fee award is authorized

by a statute, a court rule, or another recognized exception to the American rule. Pioneer State Mut

Ins Co v Michalek, 330 Mich App 138, 146; 946 NW2d 812 (2019).

MCL 600.2591(1) provides:

Upon motion of any party, if a court finds that a civil action or defense to a civil

action was frivolous, the court that conducts the civil action shall award to the

prevailing party the costs and fees incurred by that party in connection with the

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civil action by assessing the costs and fees against the nonprevailing party and their

attorney.

When the court awards fees and costs under the statute, the amount of costs and fees “shall

include all reasonable costs actually incurred by the prevailing party and any costs allowed by law

or by court rule, including court costs and reasonable attorney fees.” MCL 600.2591(2).

MCL 600.2591(3) defines the term “frivolous” to mean at least one of the following: (1) “[t]he

party’s primary purpose in initiating the action or asserting the defense was to harass, embarrass,

or injure the prevailing party[,]” (2) “[t]he party had no reasonable basis to believe that the facts

underlying that party’s legal position were in fact true[,]” or (3) “[t]he party’s legal position was

devoid of arguable legal merit.” MCL 600.2591(3)(a). A “prevailing party” is “a party who wins

on the entire record.” MCL 600.2591(3)(b). Here, plaintiff argues that defendants had no

reasonable basis to believe that the facts underlying their legal position were true.

MCR 2.625(A)(2) adds, “In an action filed on or after October 1, 1986, if the court finds

on motion of a party that an action or defense was frivolous, costs shall be awarded as provided

by MCL 600.2591.” MCR 1.109(E), which governs the filing of frivolous documents, is also

relevant in this context and provides, in relevant part:

The signature of a person filing a document, whether or not represented by an

attorney, constitutes a certification by the signer that:

(a) he or she has read the document;

(b) to the best of his or her knowledge, information, and belief formed after

reasonable inquiry, the document is well grounded in fact and is warranted by

existing law or a good-faith argument for the extension, modification, or reversal

of existing law; and

(c) the document is not interposed for any improper purpose, such as to

harass or to cause unnecessary delay or needless increase in the cost of litigation.

[MCR 1.109(E)(5).]

When a document, such as an answer, is signed in violation of MCR 1.109(E)(5),

the court, on the motion of a party or on its own initiative, shall impose upon the

person who signed it, a represented party, or both, an appropriate sanction, which

may include an order to pay to the other party or parties the amount of the

reasonable expenses incurred because of the filing of the document, including

reasonable attorney fees. The court may not assess punitive damages.

[MCR 1.109(E)(6).]

Importantly, this Court has held that the statute and court rule do “not require that the entire

defense or all the asserted defense be found frivolous for sanctions to issue. Rather, sanctions may

issue if any defense is frivolous.” Costs and Attorney Fees, 250 Mich App at 103. When analyzing

the issue, the trial court must examine whether the defense was frivolous based on the

circumstances at the time the defense was asserted. Id. at 94. The Michigan Supreme Court

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recently clarified that when the court determines that an action or defense is frivolous, the court

should apply the factors outlined in Smith, as modified by Pirgu, to determine the reasonable fee.

Bradley v Frye-Chaiken, ___ Mich ___, ___; ___ NW3d ___ (2024) (Docket Nos. 164900 and

164901); slip op at 9 n 7.

Plaintiff challenges Angels Place’s defense to her negligent hiring and retention claim,

where defendant argued that Angels Place had no reason to suspect Caramia could not safely

supervise the residents. In her original complaint, plaintiff raised several allegations about

Caramia’s ability to perform her job duties and Caramia’s ability to ensure the safety of the

residents. Defendants neither admitted nor denied many of these allegations. The only allegations

defendants denied as untrue were the allegations that (1) Caramia “was incapable of providing

protection of the residents”; and (2) Caramia “was incapable of ensuring the safety of the

residents.”

As defendants note in their brief, plaintiff later filed a first-amended complaint in the 2020

case to add an ordinary negligence claim against each defendant. The first-amended complaint

did not include the same allegations about Caramia’s job performance, so defendants did not deny

the allegations in their answer.

Regardless, even when examining the original complaint, defendants had some reasonable

basis, even if limited, to believe that Caramia could ensure the safety and protection of the Joliat

Home residents. Defendants’ argument that Caramia could ensure the safety and protection of the

residents was based on Caramia’s 16-year history with Angels Place, as well as the Concentra

evaluation that cleared her to return to work. Cisco also spoke with Caramia’s health providers

about her return. Initially, Angels Place transitioned Caramia back to work in an administrative

role. Then, when Caramia returned to Joliat Home, Angels Place created restrictions on her ability

to drive the residents and distribute medications to ensure the safety and protection of the residents.

The evidence uncovered during the ESI inspection relating to Caramia’s performance

problems is relevant to the negligent retention and hiring claim. As the trial court found, this

evidence created a genuine issue of material fact on the issue of negligent hiring and retention.

But the fact that Caramia had some performance problems in the months leading up to the incident

does not establish that defendants had no reasonable basis to believe that the facts underlying their

legal position were in fact true. Therefore, the trial court did not abuse its discretion by denying

plaintiff’s motion for frivolous-defense sanctions.8

8

We find this case distinguishable from Costs and Attorney Fees, which plaintiff cites in her brief

on appeal. In that case, an attorney failed to produce a letter of intent in discovery, which had

terms that were favorable to the plaintiffs. Costs and Attorney Fees, 250 Mich App at 92-93. This

Court concluded that the attorney had misrepresented the status of the letter during the litigation,

made arguments as if the document never existed, and had therefore offered a frivolous defense.

Id. at 96. Here, the documents uncovered in discovery did not render the defense entirely frivolous,

but rather, offered support for plaintiff’s position that Caramia could not provide safety and

protection for the residents.

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B. DISCOVERY SANCTIONS

Plaintiff next argues that the trial court erred by failing to award plaintiff’s full requested

amount in discovery sanctions. We conclude that the trial court erred by limiting the scope of

available sanctions and failing to engage in the analysis required under Smith and Pirgu to facilitate

appellate review of this issue.

When an exception to the American rule exists, a party requesting attorney fees bears the

burden to establish the reasonableness of the attorney fee through a three-step process: (1) the trial

court will determine the reasonable hourly rate customarily charged in the same locality for similar

legal services; (2) the rate is multiplied by the reasonable number of hours expended in the case,

which serves as the starting point for calculating the fee; and (3) the trial court will consider several

additional factors, outlined in the case, to determine if a fee departure is appropriate. Pirgu, 499

Mich at 274, 281, citing Smith, 481 Mich at 530-531, 533 (opinion by TAYLOR, C.J.). The factors

are not exclusive, and the trial court may consider any other facts that are relevant. Id.

In Pirgu, the Michigan Supreme Court clarified that the trial court must engage in this

analysis. Pirgu, 499 Mich at 281. Additionally, “[i]n order to facilitate appellate review, the trial

court should briefly discuss its view of each of the [Wood v Detroit Auto Inter-Ins Exch, 413 Mich

573; 321 NW2d 653 (1982)/MRPC 1.5(a) factors] on the record and justify the relevance and use

of any additional factors.” Id. at 282.

When determining the reasonable number of hours expended, the trial court “ ‘should

exclude excessive, redundant or otherwise unnecessary hours regardless of the attorneys’ skill,

reputation or experience[].’ ” Kidder v Pobursky-Kidder, ___ Mich App ___, ___; ___ NW3d ___

(2024) (Docket No. 365527); slip op at 4 (alteration in original), quoting Smith, 481 Mich at 532

n 17 (opinion by TAYLOR, C.J.) The trial court must ordinarily conduct an evidentiary hearing on

a challenge to the reasonableness of the claimed attorney fees. Sabbagh v Hamilton Psychological

Servs, PLC, 329 Mich App 324, 359; 941 NW2d 685 (2019). “ ‘However, if the parties created a

sufficient record to review the issue, an evidentiary hearing is not required.’ ” Id. (citation

omitted).

In a June 30, 2022 opinion and order, the trial court ruled that plaintiff was entitled to

sanctions for “her costs and attorney fees incurred with regard to these discovery issues.” The

court explained that plaintiff was entitled to “costs and attorney fees for all of the time and

resources relating to the Defendant’s failure to timely and fully produce discovery.” Before the

court ruled on the amount of fees and costs, the case was reassigned to the successor judge. During

the December 14, 2022 hearing, the successor judge denied defense counsel’s request for an

evidentiary hearing. The court then issued a written opinion and order about four months later, in

which the court concluded that the amount plaintiff sought in fees was “ ‘exorbitant and

unreasonable.’ ” The court ruled that the attorney fees plaintiff sought were “for copious hours of

legal services rendered which are wholly unrelated to the issue of discovery sanctions.” After

concluding that plaintiff was entitled to the amount necessary for having to file multiple motions

for sanctions, and prepare and appear for the evidentiary hearings relating to those motions, the

court concluded that plaintiff was entitled to $17,600 in attorney fees and costs.

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We first note that the trial court erred to the extent that it limited the scope of the sanctions

award that the predecessor judge had previously allowed in her June 30, 2022 order. As the

predecessor judge ruled, plaintiff was entitled to an award of “her costs and attorney fees incurred

with regard to these discovery issues.” However, the successor judge narrowed the scope of the

available sanctions to simply those fees and costs associated with filing the motions for sanctions

and attending the related evidentiary hearings.

A trial judge or their successor may generally sua sponte reconsider their prior decisions

before entry of a final judgment. See MCR 2.604(A); Hill v City of Warren, 276 Mich App 299,

307; 740 NW2d 706 (2007) (“The court rules therefore give the trial court explicit procedural

authority to revisit an order while the proceedings are still pending and, on that reconsideration, to

determine that the original order was mistaken . . . .”). However, the trial court entered a final

order (the judgment) in mid-October 2022, which was several months after the court granted

sanctions. At that point, the court’s ruling on the scope of the sanctions award became final and

appealable as of right as part of the appeal of the judgment in Docket Nos. 365702 and 365703.

See MCR 2.604(A). The remaining question for the successor judge was the amount of sanctions

in line with the court’s earlier opinion and order. For these reasons, the trial court erred to the

extent that it narrowed the scope of the allowable sanctions beyond what was previously allowed.

Additionally, the trial court erred by failing to engage in the analysis of the rate and the

reasonable number of hours as outlined in Pirgu and Smith. This analysis was wholly absent. On

remand, the court, whether it be the original trial judge, the successor judge, or a different judge,

must articulate the reasonable hourly rate customarily charged in the same locality for similar legal

services, the reasonable number of hours expended in relation to the discovery issue, and the

several additional factors to determine whether a fee departure was appropriate. The court must

also analyze whether the parties had developed a sufficient factual record for the court to decide

the amount of sanctions and, if not, the court should conduct an evidentiary hearing. We revisit

the standard for discovery sanctions mentioned above—“proportionate and just.” Given this

standard, we caution the trial court against unjustly limiting the scope of discovery sanctions. We

imagine that “proportionate and just” discovery sanctions to cover the attorneys’ fees and costs

related to years of withholding and the ultimate destruction of copious amounts of evidence to be

quite more substantial than $17,600.

For these reasons, we vacate the trial court’s opinion and order, and remand for further

proceedings consistent with this opinion.

IV. CONCLUSION

In Docket Nos. 365702 and 365703, we affirm. In Docket Nos. 366143, and 366145, we

affirm the trial court’s order denying frivolous-defense sanctions. In Docket Nos. 365986 and

365989, we vacate the court’s order awarding $17,600 in discovery sanctions and remand for

further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Adrienne N. Young

/s/ Michael J. Kelly

/s/ Kathleen A. Feeney

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