October 8, 2003


ADM File No. 2003-30


Proposed Amendment of 
Rules 2.112, 2.118, and 2.401
of the Michigan Court Rules
_________________________


     On order of the Court, this is to advise that the Court is considering a proposal
from the Representative Assembly of the State Bar of Michigan to amend Rules 2.112,
2.118, and 2.401 of the Michigan Court Rules.  Before determining whether the proposal
should be adopted, changed before adoption, or rejected, this notice is given to afford
interested persons the opportunity to comment on the form or the merits of the proposal,
or to suggest alternatives.  The Court welcomes the views of all regarding this matter,
including the issue of whether the adoption of the proposed amendments would conflict
with this Court's decisions in McDougall v Schanz, 461 Mich 15 (1999), and Greathouse
v Rhodes, 465 Mich 885 (2001).  This matter will be considered at a future public
hearing.  The notice and agendas for such hearings are posted on the Court's website,
www.courts.michigan.gov/supremecourt.

     Publication of this proposal does not mean that the Court will issue an order on
the subject, nor does it imply probable adoption of the proposal in its present form.

         [Additions are indicated below by underlining
          and deletions are indicated by strikeover.]

Rule 2.112 Pleading Special Matters

(A) - (K)     [Unchanged.]

(L)  Medical Malpractice Actions. 
               
     (1)     [Current text of subrule (L).]
                    
     (2)     In a medical malpractice action, unless the court allows a later
challenge for   good cause:
         (a) all challenges to a notice of intent to sue must be made at
the  time the defendant files its first response to the complaint, whether by
answer or motion, and 
    
     (b)     all challenges to an affidavit of merit or affidavit of meritorious
defense, including the qualifications of the signer, must be made within 63 days of the
filing of the affidavit.


Rule 2.118 Amended and Supplemental Pleadings

(A)-(C)   [Unchanged.]
          
(D)  Relation Back of Amendments. An amendment that adds a claim or a defense
relates back to the date of the original pleading if the claim or defense asserted in the
amended pleading arose out of the conduct, transaction, or occurrence set forth, or
attempted to be set forth, in the original pleading. In a medical malpractice action,
amendment of an affidavit of merit or affidavit of meritorious defense relates back to the
date of original filing of the affidavit.

(E)    [Unchanged.]
  
  
Rule 2.401 Pretrial Procedures; Conferences; Scheduling Orders

(A)     [Unchanged.]

(B)     Early Scheduling Conference and Order.

     (1)  [Unchanged.]
               
     (2) Scheduling Order.
                    
         (a)   At an early scheduling conference under subrule (B)(1), a pretrial
conference under subrule (C), or at such other time as the  court concludes that such an
order would facilitate the progress of the case, the court shall establish times for events
the court deems appropriate, including
                         
          (i) - (iii)    [Unchanged.]
                         
          (iv) the exchange of witness lists under subrule (I), [and]

          (v)  the scheduling of a pretrial conference, a settlement conference, or
trial[.],

          (vi)    the filing of summary disposition motions, and

          (vii)   a date for challenging the qualifications of an
expert witness.

         (b)-(c)    [Unchanged.]
         
          (C)-(I)   [Unchanged.]
          
     Staff Comment:  The proposed amendment of MCR 2.112, 2.118, and
2.401, as recommended by the Representative Assembly of the State Bar, would require
prompt challenges of notices of intent to sue and affidavits of merit and meritorious
defense in medical malpractice cases, and prompt challenges of expert-witness
qualifications in all cases.  The Bar contends that the current law is unfair because it
allows such challenges to be filed at any time, and also hopes to encourage the filing of
dispositive motions before trial.  

     The staff comment is published only for the benefit of the bench and bar and is
not an authoritative construction by the Court.

     A copy of this order will be given to the secretary of the State Bar and to the State
Court Administrator so that they can make the notifications specified in MCR 1.201.
Comments on these proposals may be sent to the Supreme Court Clerk in writing or
electronically by January 1, 2004, at P.O. Box 30052, Lansing, Ml 48909, or
MSC_clerk@courts.mi.gov. When filing a comment, please refer to ADM File No.
2003-30.  Your comments and the comments of others will be posted at
www.courts.michigan.gov/supremecourt.