Lee v. Putz

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0684n.06
Filed: August 9, 2005
No. 04-1341
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
HUN DAE LEE, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
JOHN PUTZ, M.D., ) WESTERN DISTRICT OF MICHIGAN
)
Defendant-Appellant, )
)
EDWARD W. SPARROW HOSPITAL )
ASSOCIATION, )
)
Defendants. )
Before: MARTIN, COOK, and LAY,* Circuit Judges.
PER CURIAM. The recent Apsey v. Mem. Hosp., –N.W.2d–, 2005 WL 1405823 (Mich. Ct.
App. 2005), decision of the Michigan Court of Appeals resolves this appeal in favor of Plaintiff-
Appellant, Hun Dae Lee. The Apsey court considered the same issue presented here—that is,
whether the special certification required by Mich. Comp. Law § 600.2102(4) to authenticate the
credentials of a sister-state notary public must accompany an affidavit of merit (required with any
medical malpractice complaint) to initiate a valid medical malpractice action and toll the limitations
period. Id.
*
The Honorable Donald P. Lay, Circuit Judge for the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
No. 04-1341
Lee v. Putz
Agreeing with, and even citing as persuasive authority, Chief District Court Judge Robert
Holmes Bell’s predictive conclusion, the Apsey court assessed the competing notarial statutes and
generally concluded that the Michigan certification-of-notarial-authority provision pertains
particularly to affidavits “officially received and considered, by the judiciary,” including medical
malpractice affidavits of merit. Id. From that premise the court reasoned that “the special
certification is a necessary part of an affidavit submitted to the court to meet the requirement of
MCL 600.2921d(1).” Id. Thus, absent the certification, the resulting, defective affidavit “fail[s]
to support a medical malpractice complaint for purposes of tolling the period of limitations.” Id.
(citing Geralds v. Munson Healthcare, 673 N.W.2d 792, 800 (Mich. Ct. App. 2003)).
Where the Apsey court then differed with Chief Judge Bell was in its conclusion that fairness
and justice require a prospective application of its decision on this “issue of first impression whose
resolution was not clearly foreshadowed.” Id. (internal quotations and citations omitted). Apsey
thus permits non-compliant plaintiffs, whose cases were pending when Apsey issued, to file the
proper certification. Because Lee falls in this category, the district court erroneously dismissed his
case.
The case is reversed and remanded for proceedings consistent with this opinion.
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