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

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

NAWAL DAHER and MOHAMAD JOMAA, CoPersonal Representatives of the ESTATE OF 

JAWAD JUMAA, also known as the ESTATE OF 

JAWAD JOMAA,

Plaintiffs-Appellees,

FOR PUBLICATION

December 1, 2022

v No. 358209

Wayne Circuit Court

PRIME HEALTHCARE SERVICES-GARDEN 

CITY, LLC, doing business as GARDEN CITY 

HOSPITAL, KELLY W. WELSH, D.O., and 

MEAGAN SHADY, D.O.,

LC No. 20-004169-NH

Defendants-Appellants.

Before: RONAYNE KRAUSE, P.J., and JANSEN and SWARTZLE, JJ.

SWARTZLE, J. (concurring dubitante in the judgment).

I respectfully concur dubitante in the judgment. I agree with the majority that this Court’s 

earlier decision in Denney v Kent Co Road Comm, 317 Mich App 727; 896 NW2d 808 (2016) is 

squarely controlling here. Under our principle of stare decisis, MCR 7.215(C)(2),(J)(1), this panel 

is bound to follow the holding in Denney, and that holding is broad enough to control the outcome

in this case. With that said, I question the soundness of Denney for at least two reasons:

First, as the majority recognizes, Denney did not confront our Supreme Court’s decision in 

Baker v Slack, 319 Mich 703; 30 NW2d 403 (1948) or the subsequent court decisions or legislative 

amendments since Baker. In their briefs, defendants and amici curiae set forth this history in great 

detail, and they argue that history is on their side. While I tend to read the plain text of MCL 

600.2922(6)—in isolation—as broadly as the Denney Court did, this leads me to my next point.

Second, the Denney Court did not discuss or even cite subsection (3) of the wrongful death 

act. In that subsection, our Legislature placed a strict limit on those persons who may be entitled 

to damages in a wrongful-death suit—specifically, those persons who, among other things, “suffer 

damages” as a result of the decedent’s death. MCL 600.2922(3); see also MCL 600.2922(6)(d) 
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(“The court shall then enter an order distributing the proceeds to those persons designated in 

subsection (3) who suffered damages and to the estate of the deceased for compensation for 

conscious pain and suffering, if any . . . .” (emphasis added)). With respect to the key issue on

appeal, i.e., the lost earnings of the decedent, subsection (3) would appear to require that any claim 

for lost earnings be made by a listed person who can show that the person has “suffer[ed] damages” 

as a result of those lost earnings of the decedent. In other words, to recover damages for lost 

earnings under the act, the person would have to establish that the decedent supported the person, 

which dovetails nicely with subsection (6)’s mention of “financial support” as a category of 

compensable damages under the act. Thus, when the entire statute is read in context, a broad 

reading of subsection (6) might not, in fact, be warranted.

This is all to say that there are complicated questions of statutory interpretation, legislative 

history, and binding precedent, and yet all of these questions are short-circuited by Denney. For 

these reasons, as well as those more fully set forth by Justice VIVIANO in his dissenting statement

in Touma v McLaren Port Huron, 965 NW2d 550, 551-553 (Mich, 2021) (VIVIANO, J, dissenting), 

I encourage our Supreme Court to take up this question and definitively answer it.

But, given the current state of the law under Denney as illustrated by the majority, I must 

concur dubitante in the judgment.

/s/ Brock A. Swartzle