Another Blow to The Rights of the Injured--Death of the Discovery Rule in Michigan

Summer is rapidly becoming my least favorite season, legally speaking. A sentiment that is no doubt echoed by thousands of personal injury victims across Michigan who are continually and systematically being stripped of their legal right to be compensated. It seems that every summer--usually in July or August--the Michigan Supreme Court hands down a decision that summarily and sweepingly wipes out the rights of an entire class of litigants to bring suit and seek compensation for their personal injuries.

Three years ago it was Kreiner v. Fisher, which imposed harsh restrictions upon those injured in auto accidents to sue. Then last year in July it was Reed v. Breton which severely curtailed the right of manypeople injured by drunk drivers to sue for their injuries. Cameron v. Auto Club is another gem which serverely curtailed the right of the injured to seek benefits from their own insurance companies under the No-Fault Act.

Now this year we have received another July Surprise in the form of a delightful little decision called Trentadue v. Gorton (decided July 25, 2007). What is the Trentadue decision? Glad you asked. It modifies statute of limitation law in a significant way.

For virtually all of Michigan's existence as a state, our legislature has imposed, for the most part, reasonable statutes of limitations on all types of cases: Two years for medical malpractice. Three years for ordinary negligence. Fifteen years for adverse possession and so on. And for over 100 years the courts have also adhered to what is known as the "Discovery Rule" to alleviate the sometimes harsh results that a hard and fast statute of limitations rule can sometimes deliver.

The Discovery Rule is a rule of equity (fairness) that gives judges the power to make a "common law" exception to the general statute of limitations rule where the plaintiff--through no fault of his or her own--was not able to discover the cause of the harm or the identity the defendant until after the normal statute of limitations had expired. The Discovery Rule creates a short 6-month window within which the plaintiff could still bring suit for his or her injuries.

An example of this might be the person who at age 19 is exposed to some toxic substance at the building where she works, but no one knows that she was exposed to it. The exposure creates terrible health problems for her. She can no longer work and for 5 years no doctor can figure out what the cause of her symptoms is. They diagnose her with every catch-all disease there is: Epstein-Barr, fibromyalgia, or, even worse, some psychosomatic disorder. Then, finally, a miracle--she finds a doctor that is able to diagnose and treat her condition. He tells her that her devastating medical problems are due to the chemical exposure when she was 19. She wants to sue her employer's landlord for her injuries. After all, her life and health have been ruined. However, the statute of limitations for negligence is just three years. Ordinarily, she would be out of luck. But, in its wisdom, Michigan law created an exception called the Discovery Rule. If she files suit within six months of discovering her cause of action, her case would not be dismissed on statute of limitations grounds and she would be entitled to recover against the building owner who poisoned her. A good and just rule, right?

Well no longer. The Trentadue decision has done away with the discovery rule, except in a few narrowly defined circumstances (fraud by the defendant, medical malpractice). The facts in the Trentadue case are particularly tragic. Margarette Eby was raped and murdered in 1986 in her home. But the killer was never caught. Then, in 2002, DNA testing finally became available that revealed the identity of the killer. It was an employee of a sprinkler service company that serviced sprinklers on the property where Eby was renting a house (the murderer was son of the company's owners). The killer, Jeffrey Gorton, confessed and was sentenced to life in prison.

Eby's daughter sued the sprinkler company for her mother's rape and murder. Even though it was 16 years after the crime was committed, the Discovery Rule should have preserved the right of Eby's estate to sue. The trial judge agreed. The Court of Appeals also got it right, holding that Eby's daughter deserved her day in court.

But on appeal to the Supreme Court, in a four-judge majority opinion (Corrigan, Markman, Taylor, Young), decided that the Discovery Rule is now extinct. To their credit, Justices Elizabeth Weaver, Marilyn Kelly and Michael Cavanagh dissented. They should be commended for their wisdom and sense of fairness. But the majority rules. So, as a result of the Trentadue decision, hundreds or even thousands of injured people will be denied their day in court. Injured people, one of the groups most deserving of legal protection from our courts, deserve better.