(A) Scope and Applicability of Rule.
(1) A court may submit to case evaluation any civil action in which the relief sought is primarily money damages or division of property unless the parties stipulate to an ADR process as outlined in subsections (A)(2)-(3) of this rule. Parties who participate in a stipulated ADR process approved by the court may not subsequently be ordered to participate in case evaluation without their written consent.
(2) In a case in which a discovery plan has been filed with the court under MCR 2.401(C), an included stipulation to use an ADR process other than case evaluation must:
(a) identify the ADR process to be used;
(b) describe the timing of the ADR process in relation to other discovery provisions; and
(c) state that the ADR process be completed no later than 60 days after the close of discovery.
(3) In a case in which no discovery plan has been filed with the court, a stipulated order to use an ADR process other than case evaluation must:
(a) be submitted to the court within 120 days of the first responsive pleading;
(b) identify the ADR process to be used and its timing in relationship to the deadlines for completion of disclosure and discovery; and
(c) state that the ADR process be completed no later than 60 days after the close of discovery.
(4) A court may exempt claims seeking equitable relief from case evaluation for good cause shown on motion or by stipulation of the parties if the court finds that case evaluation of such claims would be inappropriate.
(5) Cases filed in district court may be submitted to case evaluation under this rule. The time periods set forth in subrules (B)(1), (G)(1), (L)(1) and (L)(2) may be shortened at the discretion of the district judge to whom the case is assigned.
(1) The judge to whom an action is assigned or the chief judge may select it for case evaluation by written order after the filing of the answer
(a) on written stipulation by the parties,
(b) on written motion by a party, or
(c) if the parties have not submitted an ADR plan under subsection (A).
(2) Selection of an action for case evaluation has no effect on the normal progress of the action toward trial.
(C) Objections to Case Evaluation.
(1) To object to case evaluation, a party must file a written motion to remove from case evaluation and a notice of hearing of the motion and serve a copy on the attorneys of record and the ADR clerk within 14 days after notice of the order assigning the action to case evaluation. The motion must be set for hearing within 14 days after it is filed, unless the court orders otherwise.
(2) A timely motion must be heard before the case is submitted to case evaluation.
(D) Case Evaluation Panel.
(1) Case evaluation panels shall be composed of 3 persons.
(2) The procedure for selecting case evaluation panels is as provided in MCR 2.404.
(3) A judge may be selected as a member of a case evaluation panel, but may not preside at the trial of any action in which he or she served as a case evaluator.
(4) A case evaluator may not be called as a witness at trial.
(E) Disqualification of Case Evaluators. The rule for disqualification of a case evaluator is the same as that provided in MCR 2.003 for the disqualification of a judge.
(F) ADR Clerk. The court shall designate the ADR clerk specified under MCR 2.410, or some other person, to administer the case evaluation program. In this rule and MCR 2.404, “ADR clerk” refers to the person so designated.
(G) Scheduling Case Evaluation Hearing.
(1) The ADR clerk shall set a time and place for the hearing and send notice to the case evaluators and the attorneys at least 42 days before the date set.
(2) Adjournments may be granted only for good cause, in accordance with MCR 2.503.
(1) Each party must send a check for $75 made payable in the manner and within the time specified in the notice of the case evaluation hearing. However, if a judge is a member of the panel, the fee is $50. If the order for case evaluation directs that payment be made to the ADR clerk, the ADR clerk shall arrange payment to the case evaluators. Except by stipulation and court order, the parties may not make any other payment of fees or expenses to the case evaluators than that provided in this subrule.
(2) Only a single fee is required of each party, even where there are counterclaims, cross- claims, or third-party claims. A person entitled to a fee waiver under MCR 2.002 is entitled to a waiver of fees under this rule.
(3) If one claim is derivative of another (e.g., husband-wife, parent-child) they must be treated as a single claim, with one fee to be paid and a single award made by the case evaluators.
(4) Fees paid pursuant to subrule (H) shall be refunded to the parties if
(a) the court sets aside the order submitting the case to case evaluation or on its own initiative adjourns the case evaluation hearing, or
(b) the parties notify the ADR clerk in writing at least 14 days before the case evaluation hearing of the settlement, dismissal, or entry of judgment disposing of the action, or of an order of adjournment on stipulation or the motion of a party. If case evaluation is rescheduled at a later time, the fee provisions of subrule (H) apply regardless of whether previously paid fees have been refunded.
(5) Fees paid pursuant to subrule (H) shall not be refunded to the parties if
(a) in the case of an adjournment, the adjournment order sets a new date for case evaluation and the fees are applied to the new date, or
(b) the request for and granting of adjournment is made within 14 days of the scheduled case evaluation, unless waived for good cause. Penalties for late filing of papers under subrule (I)(2) are not to be refunded.
(I) Submission of Summary and Supporting Documents.
(1) Unless otherwise provided in the notice of hearing, at least 7 days before the hearing, each party shall
(a) serve a copy of the case evaluation summary and supporting documents in accordance with MCR 2.107, and
(b) file a proof of service and three copies of a case evaluation summary and supporting documents with the ADR clerk.
(2) Each failure to timely file and serve the materials identified in subrule (1) and each subsequent filing of supplemental materials within 7 days of the hearing, subjects the offending attorney or party to a $150 penalty to be paid in the manner specified in the notice of the case evaluation hearing. Filing and serving the materials identified in subrule (1) within 24 hours of the hearing subjects the offending attorney or party to an additional $150 penalty.
(3) The case evaluation summary shall consist of a concise summary setting forth that party’s factual and legal position on issues presented by the action. Except as permitted by the court, the summary shall not exceed 20 pages double spaced, exclusive of attachments. Quotations and footnotes may be single spaced. At least one inch margins must be used, and printing shall not be smaller than 12-point font.
(1) A party has the right, but is not required, to attend a case evaluation hearing. If scars, disfigurement, or other unusual conditions exist, they may be demonstrated to the panel by a personal appearance; however, no testimony will be taken or permitted of any party.
(2) The rules of evidence do not apply before the case evaluation panel. Factual information having a bearing on damages or liability must be supported by documentary evidence, if possible.
(3) Oral presentation shall be limited to 15 minutes per side unless multiple parties or unusual circumstances warrant additional time. Information on settlement negotiations not protected under MCR 2.412 and applicable insurance policy limits shall be disclosed at the request of the case evaluation panel.
(4) Statements by the attorneys and the briefs or summaries are not admissible in any court or evidentiary proceeding.
(5) Counsel or the parties may not engage in ex parte communications with the case evaluators concerning the action prior to the hearing. After the evaluation, the case evaluators need not respond to inquiries by the parties or counsel regarding the proceeding or the evaluation.
(1) Within 7 days after the hearing, the panel will make an evaluation and submit the evaluation to the ADR clerk. If an evaluation is made immediately following the hearing, the panel will provide a copy to the attorney for each party of its evaluation in writing. If an evaluation is not made immediately following the hearing, the evaluation must be served by the ADR clerk on each party within 14 days after the hearing. If an award is not unanimous, the evaluation must so indicate.
(2) Except as provided in subrule (H)(3), the evaluation must include a separate award as to each plaintiff's claim against each defendant and as to each cross-claim, counterclaim, or third-party claim that has been filed in the action. For the purpose of this subrule, all such claims filed by any one party against any other party shall be treated as a single claim.
(3) The evaluation may not include a separate award on any claim for equitable relief, but the panel may consider such claims in determining the amount of an award.
(4) In a tort case to which MCL 600.4915(2) or MCL 600.4963(2) applies, if the panel unanimously finds that a party's action or defense as to any other party is frivolous, the panel shall so indicate on the evaluation. For the purpose of this rule, an action or defense is “frivolous” if, as to all of a plaintiff's claims or all of a defendant's defenses to liability, at least 1 of the following conditions is met:
(a) The party's primary purpose in initiating the action or asserting the defense was to harass, embarrass, or injure the opposing party.
(b) The party had no reasonable basis to believe that the facts underlying that party's legal position were in fact true.
(c) The party's legal position was devoid of arguable legal merit.
(5) In an action alleging medical malpractice to which MCL 600.4915 applies, the evaluation must include a specific finding that
(a) there has been a breach of the applicable standard of care,
(b) there has not been a breach of the applicable standard of care, or
(c) reasonable minds could differ as to whether there has been a breach of the applicable standard of care.
(L) Acceptance or Rejection of Evaluation.
(1) Each party shall file a written acceptance or rejection of the panel's evaluation with the ADR clerk within 28 days after service of the panel's evaluation. Even if there are separate awards on multiple claims, the party must either accept or reject the evaluation in its entirety as to a particular opposing party. The failure to file a written acceptance or rejection within 28 days constitutes rejection.
(2) There may be no disclosure of a party's acceptance or rejection of the panel's evaluation until the expiration of the 28-day period, at which time the ADR clerk shall send a notice indicating each party's acceptance or rejection of the panel's evaluation.
(3) In case evaluations involving multiple parties the following rules apply:
(a) Each party has the option of accepting all of the awards covering the claims by or against that party or of accepting some and rejecting others. However, as to any particular opposing party, the party must either accept or reject the evaluation in its entirety.
(b) A party who accepts all of the awards may specifically indicate that he or she intends the acceptance to be effective only if
(i) all opposing parties accept, and/or
(ii) the opposing parties accept as to specified coparties. If such a limitation is not included in the acceptance, an accepting party is deemed to have agreed to entry of judgment, or dismissal as provided in subrule (M)(1), as to that party and those of the opposing parties who accept, with the action to continue between the accepting party and those opposing parties who reject.
(M) Effect of Acceptance of Evaluation.
(1) If all the parties accept the panel's evaluation, judgment will be entered in accordance with the evaluation, unless the amount of the award is paid within 28 days after notification of the acceptances, in which case the court shall dismiss the action with prejudice. The judgment or dismissal shall be deemed to dispose of all claims in the action and includes all fees, costs, and interest to the date it is entered, except for cases involving rights to
personal protection insurance benefits under MCL 500.3101 et seq., for which judgment or dismissal shall not be deemed to dispose of claims that have not accrued as of the date of the case evaluation hearing.
(2) If only a part of an action has been submitted to case evaluation pursuant to subrule (A)
(3) and all of the parties accept the panel’s evaluation, the court shall enter an order disposing of only those claims. (3) In a case involving multiple parties, judgment, or dismissal as provided in subrule (1), shall be entered as to those opposing parties who have accepted the portions of the evaluation that apply to them.
(N) Proceedings After Rejection.
(1) If all or part of the evaluation of the case evaluation panel is rejected, the action proceeds to trial in the normal fashion.
(2) If a party's claim or defense was found to be frivolous under subrule (K)(4), that party may request that the court review the panel's finding by filing a motion within 14 days after the ADR clerk sends notice of the rejection of the case evaluation award.
(a) The motion shall be submitted to the court on the case evaluation summaries and documents that were considered by the case evaluation panel. No other exhibits or testimony may be submitted. However, oral argument on the motion shall be permitted.
(b) After reviewing the materials submitted, the court shall determine whether the action or defense is frivolous.
(c) If the court agrees with the panel's determination, the provisions of subrule (N)(3) apply, except that the bond must be filed within 28 days after the entry of the court's order determining the action or defense to be frivolous.
(d) The judge who hears a motion under this subrule may not preside at a nonjury trial of the action.
(3) Except as provided in subrule (2), if a party's claim or defense was found to be frivolous under subrule (K)(4), that party shall post a cash or surety bond, pursuant to MCR 3.604, in the amount of $5,000 for each party against whom the action or defense was determined to be frivolous.
(a) The bond must be posted within 56 days after the case evaluation hearing or at least 14 days before trial, whichever is earlier.
(b) If a surety bond is filed, an insurance company that insures the defendant against a claim made in the action may not act as the surety.
(c) If the bond is not posted as required by this rule, the court shall dismiss a claim found to have been frivolous, and enter the default of a defendant whose defense was found to be frivolous. The action shall proceed to trial as to the remaining claims and parties, and as to the amount of damages against a defendant in default.
(d) If judgment is entered against the party who posted the bond, the bond shall be used to pay any costs awarded against that party by the court under any applicable law or court rule. MCR 3.604 applies to proceedings to enforce the bond.
(4) The ADR clerk shall place a copy of the case evaluation and the parties' acceptances and rejections in a sealed envelope for filing with the clerk of the court. In a nonjury action, the envelope may not be opened and the parties may not reveal the amount of the evaluation until the judge has rendered judgment.