Michigan Supreme Court 

# Order

Lansing, Michigan

February 1, 2008 Clifford W. Taylor, Chief Justice 130836 & (70) Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. MONIKA MAZUMDER, Personal Stephen J. Markman, Representative of the Estate of Justices Deepika S. Mazu mder, Deceased, Plaintiff-Appellee,

v SC: 130836 COA: 261331 Washtenaw CC: 04-001101-NM UNIVERSITY OF MICHIGAN REGENTS, ROBERT A. KOEPKE, PH.D., RAJIV TANDON, M.D., SATOSHI MINOSHIMA, M.D., WASHTENAW COUNTY COMMUNITY MENTAL HEALTH, JOSEPH YAROCH, M.D., MOONSON R. ELLIOTT ENINSCHE, B.A., R.S.W., C.S.M., and RICHARD PFOUTZ, M.S.W., C.S.W., Defendants,

and

MOHAMED AZIZ, M.D., and STEPHAN F. TAYLOR, M.D., Defendants-Appellants,

and

SRINIBAS MAHAPATRA, M.D., Defendant.

________________ _______________ __________/

By order of April 4, 2007 , the application for leave to appeal the February 23, 2006 judgment of the Court of Appeals was held in ab eyance pending the decision in Mullins v St Joseph Mercy Hosp (Docket No. 131879). On order of th e Court, the case having been decided on Nove mber 28, 2007, 480 Mi ch ___ (2007), the application is again considered and, pursuant to MCR 7.302(G )(1), in lieu of gran ting leave to appeal, we REVERSE the judgment of th e Court of Appeals because the court erred in invoking_______________________________________ __ 2

the doctrine of equitable tolling under these circumstances. Devillers v Auto Club Ins Ass’n , 473 Mich 562, 586- 587 n 65 (2005). Howe ver, because the plai ntiff falls within the class of plaintiffs entitled to relief identified in our order in Mullins

, supra , we REINSTATE the order of the Washtenaw Ci rcuit Court denying th e defendants’ motion for summary disposition and REMA ND this case to that court for further proceedings not inconsistent with this order and the order in Mullins

.

The motion to consolidate is DENIED as moot.

C AVANAGH and W EAVER , JJ., concur in the result.

K ELLY , J. concurs and states as follows:

The issue in this case is whether our decision in Waltz v Wyse 1 bars plaintiff’s claim. The Court of Appeal s invoked the doctrine of e quitable tolling to find that plaintiff’s claim was not barred by Waltz

. 2 We affirm that deci sion, but for a different reason. Plaintiff is within the class of plaintiffs who are entitle d to relief under our unanimous order in Mullins v St Joseph Mercy Hosp. 3 For that reason, it is unnecessary for us invoke the doctrine of equitable tolling to find that pl aintiff’s claim is not barred by Waltz

.
I write to point out that, given the stat e of the law when the Court of Appeals reached its decision, resort to the doctrine of equitable tolling was highly approp riate. As the Court of Appeals correctly recognized, the doctri ne should be in voked “‘to ensure fundamental practicality and fai rness and to prevent the unj ust technical forfeiture of a cause of action.’” 4 The Court of Appeals persuasive ly concluded that circumstances justifying its application ex isted in this case.

1 Waltz v Wyse, 469 Mich 642 (2004).

2 Mazumder v University of Michigan Bd of Regents , 270 Mich App 42, 62 (2006) (citations omitted).

3 480 Mich ___ (2007).

4 Mazumder , 270 Mich App at 61 (citations omitted).

l0129 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

February 1, 2008

Clerk