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Nippa v. Botsford General Hospital6/21/2002
the requirements for an expert witness under [MCL 600.2169].
Under the particular circumstances of this case, we reject plaintiff's contention that involuntary dismissal should not have been entered because her attorney reasonably believed that the affidavit of merit complied with the medical malpractice procedural requirements. As noted above, plaintiff initially filed the complaint and affidavit of merit on July 12, 1999, eighteen days before our Supreme Court decided McDougall II, supra. Therefore, at the time plaintiff filed the complaint, two panels of this Court had held MCL 600.2169(1) unconstitutional. However, plaintiff filed the first amended complaint on August 17, 1999, and the second amended complaint almost two months later on October 13, 1999. Thus, when plaintiff's attorney filed the second amended complaint, our Supreme Court's decision in McDougall II pronouncing the constitutional validity of § 2169(1) was settled law.
Further, once plaintiff filed the first and second amended complaints, these amended pleadings superseded the original complaint. MCR 2.118(A)(4); Grzesick v Cepela, 237 Mich App 554, 562; 603 NW2d 809 (1999).
§ 838. An amended pleading that is complete in itself and does not refer to or adopt a former pleading as a part of it supersedes or supplants the former pleading, and the prior pleading is considered abandoned and withdrawn. The purpose of this rule to ensure that the court and the opposing parties will be aware of the points at issue.
§ 839. The original pleading is abandoned and withdrawn by an amendment thereto, and is no longer part of the pleader's averments. The plaintiff cannot avail himself or herself of the allegations contained in the superseded pleading, unless they are set out or referred to in the amended pleading. This rule applies not only to factual allegations but also to theories of recovery. [Grzesick, supra at 562, quoting 61B Am Jur 2d, Pleading, pp 92-93.]
Likewise, MCL 600.2912d(1) unequivocally provides that the affidavit of merit be filed with the complaint. Scarsella, supra at 550; Bartlett v North Ottawa Community Hosp, 244 Mich App 685, 691; 625 NW2d 470 (2001). Once plaintiff filed the first and second amended complaints, which required the filing of the affidavit of merit as well, the Supreme Court's decision in McDougall II had been released. See also Kowalski v Fiutowski, 247 Mich App 156, 163; 635 NW2d 502 (2001) (observing that pursuant to MCR 2.112, both the plaintiffs' and defendants' affidavits are part of the pleadings, and when the defendant fails to file the affidavit of defense with an answer, such action results in failure to plead). In other words, when plaintiff filed the amended pleadings, it was well settled in Michigan that § 2169(1) was a constitutionally valid statute. Consequently, plaintiff's claim that she was essentially unaware that she was required to comply with the requirements of MCL 600.2169(1) is disingenuous. Thus, we are not persuaded that the instant case involved a situation where counsel "reasonably, albeit mistakenly, believed that the affiant qualified as an expert witness under § 2169." Decker, supra at 86 (Neff, P.J., concurring). Accordingly, the trial court did not abuse its discretion in entering the order of involuntary dismissal.
Affirmed.
Peter D. O'Connell
Patrick M. Meter
WHITBECK, C.J. (dissenting).
I respectfully dissent. In my view, the majority disregards the plain language of the law in order to avoid reaching what it considers to be an absurd result. Because the relevant word - "party" - in the relevant statute - MCL 600.2169(1)(a) - is a legal term of art th
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