i'll be happy to call it the last case he's number one five dash one seven nine three scott rolen v brook dio senior living community or arguments not to exceed fifteen minutes per side mr jules old man for playing distinguished professor at the college of agriculture in a community health schools at michigan state university after some serious health issues sought the need of a protected environment for his family did for him rather to live in facilities mr rowan is seventy two he suffered a serious stroke in december of two thousand and twelve he went through a very difficult situation personal situation with his family and finally in the summer of two thousand and thirteen his first wife decided that it would be best if he went to live in this protected environment he had there were significant concerns both about his physical well being his mental life he didn't marry there after did no no he his second wife is the one that was being prompted was a terrible familial situation for him very difficult situation so mr rowan goes into the facility on july the thirteenth with his daughter and he was presented with a multi page admission document to sign which he signs for her  he signs in the presence of the people from birkdale and this of course includes a rather significant arbitration agreement that wasn't the first time he'd gone there he went there with his wife rather than that that's that may be the case the problem in the case is the trial court made a finding that the arb that the admission agreement had been given to them at that earlier visit and i would submit to this court  evidence of that we're just looking for circumstantial evidence and he was required to sign this form and to give a doctor's certificate he brought with him the doctor's certificate already filled out inside so he had to receive that in advance to have been able to bring it well right well the doctor's certificate merely says it's an appropriate placement it doesn't speak to mental competence i coude that but i'm saying he showed up with a doctor certificate so he knew he had to have that and he had had he placement this is not the issue in this case is when mr alterman i'm not asking you anything about what the certificates i'm not implying anything i'm just simply pointing out that this was not the first time this guy had shown up at the nursing home it's not a nursing home it's in his system as opposed to living he had been there earlier ok and the question is whether there is circumstantial evidence that if because their normal practice is to give the doctor certificate and the form that you have to if the contract whether that satisfied in this case that's only asking all i can respond to the court with that is is that my client's daughter did not recall that mr rohani had been furnished the document previously you know the words of the argument is really a plenty of time to read it plenty of time to go forward there's no evidence of that there's no evidence of that and what in fact happened here is to only evidence might be judge he knew what to bring that day or someone knew what to bring for ok it was filled out ready to roll but the issue your honor is whether aren't this judge the trial court judge maloney treated this as a summary judgment case un fifty six he said he in his opinion he starts out saying that this honorable court hasn't quite told us how we need to decide these motions to compel arbitration we filed in state court they removed it the first thing they file was  morrone starts out by saying well the six circuit hasn't told us what to do so i'm going to treat this as a rule fifty six summary judgment motion great using your opinion in default oh what did he do here he weighed all the evidence he decided what was true and what wasn't or gave inferences if you will to the defendant who was the moving party i didn't get an inference in the case i keep looking for the inference that i didn't get an inference in the case and he says well looking at it in total i think that mr rowan was mentally competent when he signed that document on july thirteenth well let me pose a couple things you there are two doctors whose depositions were taken in this case dr berry who was his treating family medicine doctor in lansing and dr berry said i'm not cut i'm offering no opinion mr rowan's mental capacity and that date we're looking at it in that window could he possibly have understood what he was signing and that mr rowan moved in her four days rather on the seventeenth of july now that should cause somebody to say well why are they having a psychiatry has come in to see a gentleman who was just admitted a few days earlier his role is to decide well does he have dementia off or demean him hello hello it least for the summary judgment motion by the trial court holo well whether we have value waiting here we're evaluating a person's ability to comprehend the law in michigan as he has done or stand the nature in the act of what he is doing when he signs that arbitration agreement and i can submit somewhat provision well not just an arbitration provision but i mean we don't even need to get into all that here today about the limitations on damages you get to call this one you know it's it's understand right we don't even need to talk about that here in terms of all these different inferences there has to be some basis to give you an inference that in fact he didn't understand well how about dr ted and he's saying initially you know i'm sorry we are not a jury i understand saying that she didn't have any reservations about his competency to contract shortly before he signed this agreement that's pretty damning evidence that's one that's one the therapist expressed confidence in the ability to comprehend each section of the contract so we have that as evidence we're not drawing we're not drawing inferences from that so from what do you say judge maloney should have drawn inferences that he didn't have the ability to contract well if you the totality of the circumstances the fact that dr ted in meaning is brought in just a few days that there is no exam on that day i can't point to an exam on that day but the not mr rowan professor roan would have been competent to sign this on the thirteenth visa's i have no opinion i have no opinion on that at all and you know why he says that he said how does no opinion help he says that requires testing there's no testing there was no testing done by but he says for me to make that opinion offer that opinion there has to be some test you have the burden of proof in connection with this case to show sufficient evidence to get to the jury on the question of whether it was competent now all of the evidence that we have seems to suggest that he was competent and i'm just trying to do is help you out here by having you direct me to what evidence there significant significant cognitive impairments he had a problem speaking he had problems in analyzing words that's just you know it's if it's not in july it's in april but you know when judge maloney well view this is of fifty six motion i realize i have the burden of proof but for the purpose of summary judgment under do follow i don't see how to judge maloney can he's he's weighing the evidence here he's material fact as to the validity of the agreement to arbitrate so all i'm doing is simply asking you to tell us what is that evidence because all the evidence that's discussed seems to cut the other way the most valuable evidence that he's testimony who is the psychiatry is to saw him literally seventy two or ninety six hours after he signed the agreement and he says i'm being asked to determine whether this gentleman has dementia or deliri and the question there is you know is he mentally competent is he meant i mean can he function safely in assisted living that's why they bring him in i mean anecdotally that's why they would bring a psychiatry because they want to make sure it's a safe placement for him this is what we have to at this time the judge said he wanted us decided we were only deciding one thing at that time he said he being the doctor says that he suffered from anxiety depression limited and judgment as a result of either mild vascular dementia or delirium are you saying that that the conclusion that he did draw that i've just summarized was sufficient to get the issue of competence to a jury yes yes it is one of those it's it's an inference that i should get here just like the inference that what why would you get that inference if he then went on to say that he was not assessing co if those if the diagnosis that he did give is as you say a diagnosis that he did that he wasn't competent or from which you could should be able to draw the inference that he was not competent the doctor wouldn't have said that the evaluation didn't involve competency though he said he wasn't going to give an opinion that you know this is he's being asked these questions long after the fact after after everything goes bad here and then the question is well did you assess his competency no no no i didn't i'm not telling the court any bill who did it who gave opinions the family members said i don't know that you can all due respect your honor i don't i don't know  how a lay person could offer and then how about using the idea that he had he signed a p p o and somebody said well see he could sign a c as a p p o in front of a group of lawyers in east lansing i mean is that like ok we'll have means he's co condition at that time plus just looking at everything in a vacuum not in a very can but looking at it in isolation is the daughter said they walk in they're told here's the agreement sign it and we're in a hurry we have the next person  for articulating the fact that this was a summary just it was treated as a summary judgment motion the plaintiffs had the burden of proof to establish that mr det dr rowan was not mentally competent at the time he signed the residential agreement i think that based upon your questions and comments to mr olds men the court is well aware that there is an absence of evidence in the trial record which justified judgment alone is grant of summary judgment in favor of the defendant would you say about his did not really provide any new facts or diagnosis except for possibly saying that he suffered dr rowan suffered from depression  really the question i mean is is there any evidence here that somebody that is suffering from anxiety depression limited insight and judgment as a result of either mild vascular dementia or delirium in fact is not competent to sign a document  d if somebody went to a medical journal and said gee look at the definition of all these things and in combination it therefore it shows they're not competent that be a pretty strong argument mr rolls means there's no such evidence here there is no evidence whatsoever is there any medical evidence that saying that these conditions or a combination of conditions show somebody is not competent no evidence is zero i think that i hope that  notwithstanding the existence of a short term memory loss he had no concerns whatsoever regarding any possible mental health issues for dr berry said that he was likely that dr rowan was likely to comprehend court unquote each section of the residence agreement so these two medical witnesses provided evidence that supported mental competency they provided zero evidence that would support the plaintiffs position i didn't see anywhere in the record that how long it had been since this gentleman had been in the business of being a professor is he long is has was a long time since he taught are you referring to  professor ring oh i can't answer that off topic all right i just ask if it were in the records i would do for i mean that becomes somewhat to we we least know that we're dealing with an intelligent individual y i take it yes ph the intelligent individual former professor but i cannot tell you right i get it's not on the record i don't need to know thank you i think you know i guess to it to summarize simply noted that there was no evidence in the record to support the plaintiff's burden of proof it was the plaintiff that had that burden of proof to establish mental competency and they had the burden of coming forward with evidence wrote burden of production yet he had the burden of production for purposes of this motion in a plane of didn't satisfy that burden of production nothing in his written brief before this court and nothing in his presentation today gives any credence to his conclusory position right up but i would also note that as to the public policy arguments just two points if i number one the plaintiff's arguments that the arbitration provision is against michigan public policy and particularly in violation of michigan's truth in lending act are not properly preserved for appellate review plain of did not so i get to the truth in lending act in the trial court the plaintiff instead argued to the trial court that this arbitration agreement was against a very broad public policies forth by michigan nursing home statutes to protect against elder abuse the plan of seems to abandon those arguments in now has added new arguments on appeal regarding public policy that were not presented to the trial court in addition we relied upon in our the peel brief the marmot health versus brown us supreme court case which specifically addresses the federal preemption of the federal arbitration act as against state statutes which might try to limit the availability of arbitration the marmot case is right on point that case in fact dealt with nursing homes state nursing home statutes it's right dead not some point with respect to federal preemption the damage happy issue the contractual damage cap is just a very brief judgment only said that the issue was premature with regard to the damage camp he said he already ruled on ok so let's let me just leave you with two things subs in terms of substantive testimony just want to quote this he said that he was unable to report the date that he had some difficulties with immediate recall spelling words backwards and limitations in delayed verbal stimuli in scuse me in delayed verbal recall character this is a distinguished professor from michigan state is a published author i mean this is a very hard thing for a family like this to have to go through and so when you said he's a very intelligent person then then that would be the next question is and why was he in than ever in the world sign an arbitration agreement like that i would take it one step further as is an inference and then with respect to dearly a parent one hundred eight thousand people in the country of science don't don't well i don't count on that your honor but i can tell you brooke you know would like that though i can you can count on that the section of dr bare is testimony that judgment on any quotes on page eleven or refers to on page eleven of the opinion says dr berry testified that wrong would likely have been if i have been able to comprehend each section of the residency agreement but he had doubts that ron would be able to recall the entire document is that a fair status on july in july of two thousand and thirteen other than based on your april visit so when you look at those two things together i understand i'll just look at what evidence is there in the record that you were relying upon that said he his condition is changed since april of two thousand and thirteen to the day that he says showed up and signed the agreement that five four days later that the physician winwood over in portage wanted a psychiatrist i'm not asking what happened later i understand what you your basis for that argument my question is what was in the record that showed what happened between the april brain therapy and the day he showed up at the facility and signed the document or using terms like of a medical event or something like that tell me whatever event you think is relevant but i can tell you mean in the mean time during that period he signs five documents legal documents which he has to be confident and the family says well we think he's confident so i'm just trying to figure out what do you what i agree you're making the point that that was back in april and this was in july so what what is the evidence show happening what does the evidence show happened in the meantime that's a  sign those documents for the power of attorney and force and so forth because his second wife was physically abusing him in there she was beating him i was referring situation and that's the only thing that i want trying to help you out here i know you're trying to explain away signing the documents i got that forget that what happened that that's in the record that shows his his ability to comprehend declined from april to the day showed like i can't point to a specific hospitalization or a specific occurrence but i'm talking using just holding the term inference in advance here if on the seventeenth of july these physician it when would says i want a psychiatrist to see him rule out delirium versus dementia that is a pretty in and of itself just in terms of taking a reasonable inference something is going on here they just didn't call in the the psychiatrist because you haven't be driving by and asked me if you like to see mr rowan today he said he only goes there when he's asked specifically to see a patient so i'm looking for an inference here and i got it and i didn't get it in the trial court so ok thank you very much