Segal McCambridge Legal Blog

On August 5, 2010, the Michigan Court of Appeals ruled that under the adoption of the “Apex deposition rule” that two high-ranking Toyota executives do not have to give depositions in a personal injury lawsuit involving the death of a woman whose vehicle allegedly suddenly accelerated and struck a tree.

From the Alberto v. Toyota Motor Corporation, No. 296824 (Mich. Ct. App., 8/5/10) opinion:

This is a personal injury, products liability suit wherein plaintiff seeks to depose two high-ranking Toyota corporate officers in connection with the claim that a defect in a Toyota vehicle caused the accident that resulted in the death of plaintiff’s decedent.
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This appeal presents the question whether Michigan should formally adopt the apex deposition rule in the corporate context. As used by other state and federal courts, the apex deposition rule provides that before a plaintiff may take the deposition of a high-ranking or “apex� government official or corporate officer, the plaintiff must demonstrate that: (1) the government official or corporate officer possesses superior or unique information relevant to the issues being litigated, and (2) information cannot be obtained by a less intrusive method, such as by deposing lower-ranking employees. See, e.g., Baine v Gen Motors Corp, 141 FRD 332, 334-335 (MD Ala, 1991).
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We hold that the apex deposition rule applies in Michigan cases involving public and private high-ranking corporate officers.
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In adopting the apex rule, we recognize, as have other courts, that an apex corporate officer, like a high-ranking government official, often has no particularized or specialized knowledge of day-to-day operations or of particular factual scenarios that lead to litigation, and has far-reaching and comprehensive employment duties that require a significant time commitment. And, therefore, to allow depositions of high-ranking government officials or corporate officers without any restriction or preconditions, could result in the abuse of the discovery process and harassment of the parties. Accordingly, our adoption of the apex deposition rule should serve as a useful rule for trial courts to use in balancing the discovery rights of the parties.

On July 31st, the Michigan Supreme Court in O’Neal v. St. John Hosp. & Med. Center, held that Michigan’s statutory loss of opportunity provision (Section 2912a(2)) does not apply to medical malpractice cases. Specifically, the court stated:

“We hold that the Court of Appeals erred by relying on Fulton and determining that this is a loss-of-opportunity case controlled by both the first and second sentences of MCL 600.2912a(2), and instead hold that this case presents a claim for traditional medical malpractice controlled only by the first sentence of § 2912a(2). Further, we conclude that plaintiff established a question of fact on the issue of proximate causation because plaintiff’s experts opined that defendants’ negligence more probably than not was the proximate cause of plaintiff’s injuries. Finally, we hold that Fulton did not correctly set forth the burden of proof necessary to establish proximate causation for traditional medical malpractice cases as set forth in § 2912a(2). Therefore, we overrule Fulton to the extent that it has led courts to improperly designate what should be traditional medical malpractice claims as loss-of-opportunity claims and has improperly transformed the burden of proof in a traditional malpractice case from a proximate cause to the proximate cause.”

The opinion can be found here