Lake v. Cavaliere et al

Filing 30

OPINION AND ORDER denying defendant Cavalier's Motion to dismiss 14 . Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PENNY S. LAKE,
Plaintiff,
CASE NO. 12-CV-14976
HONORABLE GEORGE CARAM STEEH

v.
SALVATORE CAVALIERE,
LIFESTYLE LIFTS HOLDING, INC.,
and LIFESTYLE LIFTS HOLDING II,
INC. d/b/a LIFESTYLE LIFTS,
Defendants.
/

OPINION AND ORDER DENYING DEFENDANT
CAVALIERE’S MOTION TO DISMISS (Doc. 14)
On November 9, 2012, plaintiff Penny Lake filed a medical practice action
against defendant plastic surgeon Salvatore Cavaliere, D.O., arising out of an allegedly
negligent face lift that took place on November 11, 2010. Lake also named as
defendants, Cavaliere’s alleged employers, Lifestyle Lifts Holding, Inc. and/or Lifestyle
Lifts Holding, II (collectively “Lifestyle Lifts”). The allegedly negligent procedure took
place at Lifestyle Lift’s Troy facility. On January 4, 2013, Cavaliere filed a motion to
dismiss for Lake’s alleged failure to comply with MCL § 600.2912b which requires that a
plaintiff serve a notice of intent (NOI) to bring a medical malpractice claim 182-days
prior to filing suit. On March 21, 2013, the court heard oral argument on the motion. At
the conclusion of the hearing, the court granted the motion to dismiss from the bench;
however, the court vacated that order the next day, allowed the parties additional time
to conduct discovery solely on the notice issue, and allowed the parties to file
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supplemental briefs after further discovery. The parties have now done so. Oral
argument was heard on June 27, 2013. Based on the new evidence presented and for
the reasons set forth below, Cavaliere’s motion to dismiss shall be denied.
BACKGROUND
As part of the parties’ additional discovery on the notice issue, Lake deposed
three witnesses: Lisa Slicker, risk manager for Lifestyle Lifts; Cavaliere, and Jonathon
Lanesky, an attorney and insurance adjuster assigned to Cavaliere’s claim.1 Based on
the testimony of Slicker and Cavaliere, which confirms that Lake sent the NOI to
Cavaliere’s prior business address, and confirms that Cavaliere had actual notice of
Lake’s medical malpractice claim as of June 15, 2012, Lake has shown that she
provided Cavaliere with the requisite notice under § 2912b.
Plaintiff’s counsel, Joseph Solomon, has submitted an affidavit stating that on
February 1, 2012, he mailed via U.S. certified mail, an NOI to what he believed to be
Cavaliere’s last known business address for his private office at 811 Oakwood Drive,
Suite 301, Rochester, Michigan. (Doc. 27, Ex. 4). At his deposition, Cavaliere admitted
that 811 Oakwood was his prior business address, although he left this location in 2008
(Doc. 27, Ex. 2 at 26). A Google search for Cavaliere still lists him at that address. The
NOI directed to Cavaliere was returned “not deliverable as addressed unable to
forward.” On February 1, 2012, Solomon also mailed an NOI by certified mail to
Lifestyle Lifts at their Troy location. That letter alleged that Cavaliere performed the
allegedly negligent procedures. Lisa Slicker, a risk manager for Lifestyle Lifts, stated in

1

Lanesky testified that he did not learn of Lake’s medical malpractice claim until
November 28, 2012.
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her deposition that she received plaintiff’s NOI on February 6, 2012 (Doc. 27, Ex. 1 at
9), but she could not remember if she communicated receipt of the NOI to Cavaliere,
but she did recall having one conversation with him, although she did not remember
when. Id. at 10. The notice sent to Lifestyle Lifts indicated that Cavaliere “is also being
sent a notice similar to this letter.” Thus, Cavaliere argues, Lifestyle Lifts had no reason
to forward the notice to him. At his deposition, however, Cavaliere testified that he
remembered talking to Slicker about the potential lawsuit but could not remember
exactly when that conversation occurred. (Doc. 27, Ex. 2 at 18). Moreover, on
November 21, 2012, Slicker sent an e-mail to Cavaliere stating, “I wanted to let you
know that we were recently served with a summons and complaint with respect to
Penny Lake. It has been filed in Federal Court and you are named as a defendant as
well. If you recall, we previously discussed this matter when they sent us an NOI.”
(Doc. 27, Ex. 1).
Some time after Cavaliere’s NOI was returned undeliverable, plaintiff hired a
“skip trace” service, and referenced Cavaliere’s 811 Oakwood Drive address to learn
that defendant Cavaliere’s residential address was 48620 Lorenzo Drive, Macomb,
Michigan. On April 5, 2012, plaintiff mailed an NOI to Cavaliere at the Lorenzo address
via U.S. certified mail, which was returned “unclaimed.” On April 26, 2012, plaintiff sent
another NOI via regular U.S. mail to the same address, and did not receive any
response. Cavaliere maintains that he has never lived at the Lorenzo address, but
rather, his cousin, also named Salvatore Cavaliere, resides at that location.
On May 30, 2012, plaintiff mailed a settlement demand package to Lifestyle Lifts,
and at her deposition, Slicker confirmed her receipt of said mailing (Doc. 27, Ex. 1 at
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17). That letter clearly provided that Lake was bringing a “medical malpractice claim
against Lifestyle Lift and Dr. Salvatore Cavaliere.” On June 15, 2012, Slicker e-mailed
Cavaliere with an attachment of the May 30, 2012 letter. Cavaliere responded to
Slicker’s e-mail on June 17, 2012, indicating he objected to her allegations. At his
deposition, Cavaliere admitted that he received the June 15, 2012 e-mail advising him
of the lawsuit. (Doc. 27, Ex. 2 at 10). Lake never received any response from
Cavaliere.
Plaintiff filed this complaint on November 9, 2012, two days prior to the date the
statute of limitations period expired under MCL § 600.5805(6), which provides that a
medical malpractice claim must be brought within two years after the claim accrues,
which in this case was on November 11, 2010 when Lake had the surgical procedure.
Lake did not need to file this lawsuit as early as November 11, 2012, however, as
Michigan law is clear that the statute of limitations period is tolled from the time that the
NOI is sent for “the number of days equal to the number of days remaining in the
applicable notice period after the date notice is given.” MCL § 600.5856(c). At this
point, however, if the court decides that the NOI was inadequate and thus, grants
Cavaliere’s motion to dismiss, Lake would be time-barred from refiling this lawsuit
unless equitable tolling were allowed.
ANALYSIS
MCL § 600.2912b(1) prohibits the commencement of an action alleging medical
malpractice against a health professional unless that health professional is given written
notice of the claim 182-days before the action is commenced. MCL § 600.2912b(2)
provides:
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(2) the notice of intent to file a claim required under subsection (1) shall be
mailed to the last known professional business address or residential address of
the health professional or health facility who is the subject of the claim. Proof of
the mailing constitutes prima facie evidence of compliance with this section. If no
last known professional business or residential address can reasonably be
ascertained, notice may be mailed to the health facility where the care that is the
basis for the claim was rendered.
MCL § 600.2912b(2).
In this case, Lake mailed the NOI to Cavaliere’s 811 Oakwood address on
February 1, 2012, which Cavaliere admitted at his deposition was a prior professional
address. Similarly, in DeCosta v. Gossage, 486 Mich. 116 (2010), the plaintiff received
treatment from an eye doctor at a first location, and then received cataract surgery,
which gave rise to the medical malpractice claim, at a new office location. Id. 119-20.
She mailed the NOI to the old office location where an unknown individual accepted and
signed for copies of the NOI and forwarded them to the doctor at his new location. Id. at
121. The trial court and the Court of Appeals ruled that plaintiff had failed to satisfy §
2912b because she had not mailed the NOI to the plaintiff’s last known business
address. Id. The Michigan Supreme Court reversed, finding that plaintiff met the
requirements of § 2912b even though she did not send the NOI to his last known
address, because there was no indication in the record that the new address was the
sole address. Id. at 124.
In finding that the NOI was sufficient although mailed to an old address, the
Michigan Supreme Court noted that “[t]he advance-notice requirement encourages
settlement of a dispute in lieu of costly litigation, and rigid interpretations of § 2912b do
not foster or encourage the statute’s goal of advancing settlement and reducing
litigation costs.” Id. at 122. In addition, the Supreme Court ruled that to the extent that
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plaintiff had failed to meet the exact strictures of the statute, the Court would forgive
technical defects because the doctor had received actual notice. Id. at 125. In support
of relaxing the strict requirements of § 2912b, the Michigan Supreme Court relied on
MCL § 600.2301 which requires that courts disregard defects in proceedings that do not
affect the substantial rights of the parties. Id. The court went on to state that even if a
defect had been found in the service of process, “it was a minor technical defect in the
proceedings because defendants actually received the NOI” and “[s]uch minor technical
defects can be cured under MCL § 600.2301.” Id. at 125.
Based on the reasoning of DeCosta, equity requires that this court find that the
NOI sent in this case satisfies the requirements of § 2912b. On February 1, 2012, Lake
sent an NOI to Cavaliere at one of his prior business addresses and to his prior
employer, Lifestyle Lifts. The record is ambiguous as to whether or not he received
actual notice of the NOI sent to his prior employer, as neither the individual who
received the notice at Lifestyle Lift, Slicker, nor Cavaliere himself, could remember
exactly if they had discussed that letter, although both admitted they remembered
having one telephone conversation with each other. In addition, the November 21,
2012 e-mail from Slicker to Cavaliere stated that they had an earlier conversation about
Lake’s settlement demand after Lifestyle Lifts had received its NOI. In any event, there
is no dispute that Cavaliere received actual notice of Lake’s alleged medical malpractice
claim based on the June 15, 2012 e-mail from Slicker. At his deposition, he admitted
that he received the e-mail, and he responded to the e-mail on June 17, 2012.
Based on the Michigan Supreme Court’s admonitions in DeCosta that the
purpose of § 2912b, which is to promote prompt settlement of medical malpractice
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claims and to limit protracted litigation costs, should not be thwarted by overly technical
applications of the notice rule, Lake has satisfied the notice requirement here where she
has shown that she mailed the mailed the NOI to a prior business address and
Cavaliere did, in fact, receive actual notice.
MCL § 600.2301 requires that this court find that any minor defect in the notice
be cured. MCL § 600.2301 provides:
Sec. 2301. The court in which any action or proceeding is pending, has power to
amend any process, pleading or proceeding in such action or proceeding, either
in form or substance, for the furtherance of justice, on such terms as are just, at
any time before judgment rendered therein. The court at every stage of the action
or proceeding shall disregard any error or defect in the proceedings which do not
affect the substantial rights of the parties.
MCL § 600.2301. The above quoted rule is clear that the court “shall disregard” any
defect that does not affect the substantial rights of the parties. In Bush v. Shabahang,
484 Mich. 156 (2009), the Michigan Supreme Court addressed the question of whether
defective content in an NOI, that failed to properly set forth the factual basis for a
medical malpractice claim as required under MCL § 600.2912b(4), required dismissal,
or whether the defect in the notice could be excused under § 2301. Id. at 177. The
court found that dismissal was not warranted where the plaintiff had made a good faith
effort to comply with the strictures of § 2912b. Id. at 180-81. The Michigan Supreme
Court determined that “the applicability of section 2301 rests on a two-prong test: first,
whether a substantial right of a party is implicated and, second, whether a cure is in the
furtherance of justice.” Id. at 177.
Under the Supreme Court’s holding in Bush, Lake has met the two-part test of §
2301, which mandates that any defect here, with regard to strict compliance with §
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2912b, be forgiven. First, the court considers whether Cavaliere’s substantial rights
would be violated if this court were to excuse a minor good faith defect in the serving of
the NOI. Just as in DeCosta, Cavaliere cannot show that any substantial right would be
impacted. The court next considers “whether a cure is in the furtherance of justice.” In
this case, Lake has shown that she made a good faith effort to serve a copy of the NOI
on Cavaliere and that he did in fact receive actual notice. In determining whether
allowing a minor defect in the notice would be in the interests of justice, this court is
guided by the legislative history of § 2912b which the Michigan Supreme Court quoted,
as follows, in Bush: “[t]he stated purpose of § 2912b was to provide a mechanism for
‘promoting settlement without the need for formal litigation, reducing the cost of medical
malpractice litigation, and providing compensation for meritorious medical malpractice
claims that would otherwise be precluded from recovery because of litigation costs.” 484
Mich. at 174 (citations omitted).
In this case, Cavaliere received actual notice of Lake’s alleged medical
malpractice claim long before the lawsuit commenced, thus giving the parties’ significant
time to discuss settlement before the case was initiated. Under these circumstances,
both prongs of § 2301 have been met and Cavaliere’s motion to dismiss shall be
denied. Moreover, Lake relies on Smith v. Amaria, No. 283229, 2009 WL 793983
(Mich. App. Mar. 26, 2009), where the Michigan Court of Appeals held that “[t]he statute
does not specify that the last known address be the official last known address of the
defendant, as opposed to an address based on the subjective understanding of the
plaintiff.” Id. at *2. In that case, the Michigan Court of Appeals found that the notice
was sufficient under § 2912b, where the plaintiff submitted notarized proof of service by
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mailing, even though the letter was sent return receipt requested, there was no signed
receipt, and defendant denied receiving actual notice. Id. In Armania, the plaintiff had
used the address on a prior occasion so the court of appeals found that the plaintiff’s
subjective understanding was reasonable. Id. The court further noted that all that the
statute requires is proof that the mailing took place, not receipt by the defendant. Id.
Likewise, in this case, Lake’s subjective belief that the 811 Oakwood address was the
last known business address was reasonable where Cavaliere had recently worked at
that location and a current Google search still identifies Cavaliere as being at that
location. Lake also correctly relies on the provision of § 2912b which states that
“[p]roof of the mailing constitutes prima facie evidence of compliance with this section.”
Lake relies on the affidavit of her counsel that the NOI was sent to Cavaliere to the
Rochester address on February 1, 2012. This is sufficient to satisfy § 2912b.
II.

Lake Satisfied the Statutory Notice Period
Having conceded that he did in fact receive actual notice of this lawsuit on June

15, 2012, Cavaliere argues that Lake did not wait the requisite 182-days following that
date prior to filing suit. Cavaliere’s argument lacks merit. The date that the doctor
received notice is not the triggering date. MCL § 600.2912b does not require that the
182-days begin upon receipt by the defendant physician, but specifies that the time
period begins to run on the date that the notice is mailed. Thus, Cavaliere’s reliance on
opinions describing the 182-day waiting period under § 2912b(1) as mandatory2 fail to
support his claim that the complaint was filed prematurely here. The NOI was sent to

2

Burton v. Reed City Hosp. Corp., 471 Mich. 745 (2005); Omelenchuk v. City of
Warren, 461 Mich. 567 (2000).
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Cavaliere on February 1, 2012, 280 days before he filed suit. Thus, Lake properly
waited more than 182 days following the mailing of the NOI to Cavaliere.3
III.

Alleged Defect in the Content of the Notice
In his supplemental response, Cavaliere objects, for the first time, to the content

of the notice given in the letter dated May 30, 2012. This new argument exceeds the
scope of the supplemental briefing authorized by the court, which was to address solely
the issue of the adequacy of the notice given under § 2912b. The matter was not
argued in Cavaliere’s motion to dismiss, was not heard at oral argument, and Lake has
never replied to the argument on the merits. According to the general rule that new
arguments raised for the first time in a reply brief are not properly before the court, the
argument is deemed waived. See Scottsdale Inc. Co. v. Flowers, 513 F.3d 546, 553
(6th Cir. 2008); International-Matex Tank Terminals-Illinois v. Chemical Bank, No. 081200, 2009 WL 1651291, *2 (W.D. Mich. June 11, 2009) (collecting cases).
Even were the court to consider the new argument on the merits, it is not a
proper basis for dismissal. Cavaliere argues that the letter is defective because it failed
to allege with sufficient specificity the factual basis for the claim as required under MCL
§ 600.2912b(4) which provides:
The notice given to a health professional or health facility under this section shall
contain a statement of at least all of the following:

3

Moreover, although the DeCosta decision did not expressly discuss whether
plaintiff waited the requisite 182-days in that case, according to this court’s calculations,
the lawsuit was filed 172 days after the NOI was mailed, and only 167 days after actual
notice was received. DeCosta, 486 Mich. at 120-21. In this case, Cavaliere admits to
actual notice on June 15, 2012, which was nearly five months prior to the filing of the
lawsuit. Cavaliere had a substantial amount of time to discuss settlement, if he had
wanted to, but he did not.
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(a) The factual basis for the claim.
(b) The applicable standard of practice or care alleged by the claimant.
(c) The manner in which it is claimed that the applicable standard of practice or
care was breached by the health professional or health facility.
(d) The alleged action that should have been taken to achieve compliance with
the alleged standard of practice or care.
(e) The manner in which it is alleged the breach of the standard of practice or
care was the proximate cause of the injury claimed in the notice.
(f) The names of all health professionals and health facilities the claimant is
notifying under this section in relation to the claim.
MCL § 600.2912b(4). Cavaliere reads too much into the requirements of §2912b(4).
The May 30, 2012 letter clearly provided that the malpractice claim related to Lifestyle
Lifts and Cavaliere, that the basis for the claim was negligent plastic surgery, and that
Cavaliere’s conduct fell below the standard of care because board certified plastic
surgeon, Michael Milan, M.D., reviewed the case and determined “that Dr. Cavaliere
was negligent in the manner in which he performed liposuction, suturing techniques and
skin layers, all of which caused significant damage to my client’s neck and face. In
researching other complaints filed against Lifestyle Lift[s], substandard care is not an
anomaly.” The letter further discusses Lake’s treatment and provides that Lake’s family
physician “referred [her] to infectious disease Dr. Duggan and board certified plastic
surgeon Dr. Colville. Dr. Duggan confirmed that Ms. Lake developed MSRA at various
surgical sites in her face and neck. Dr. Colville performed additional surgery to drain
these sites and attempted to minimize scarring as a result of Dr. Cavaliere’s
substandard surgical techniques.” The letter references an affidavit of Milan but
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Cavaliere states it is unclear whether or not the affidavit was actually attached to the
letter. This point is insignificant as the letter and affidavit are virtually the same.
The February 1, 2012 NOI sent to Cavaliere at his prior address contained a
similar description of Lake’s alleged malpractice claim. Cavaliere has not shown that
the content of the notice given in either the May 30, 2012 letter or the February 1, 2012
letter, was deficient, but even if he had done so, the alleged deficiency was not done in
bad faith, and thus, is excusable. In Bush, the Michigan Supreme Court ruled that “only
when a plaintiff has not made a good-faith attempt to comply with § 2912b(4) should a
trial court consider dismissal of an action without prejudice.” Bush, 484 Mich. at 156.
Because any good faith defect in the content of the NOI is excusable, and an
incomplete description of the malpractice alleged in an NOI does not ordinarily amount
to the loss of a substantive right to the doctors involved, § 2301 requires that the rigid
requirements of § 2912b(4) may be relaxed in the “furtherance of justice.”
Cavaliere argues that the holding of Bush does not save Lake’s defective NOI
because Cavaliere received no timely NOI. Cavaliere’s argument lacks merit. As this
court has discussed above, Lake’s counsel submitted an affidavit that he mailed a copy
of the NOI to Cavaliere’s Rochester business address on February 1, 2012, and that is
sufficient to meet the demands of § 2912b(2), especially when considered in tandem
with the fact that Cavaliere received actual notice of Lake’s alleged malpractice claim.
Cavaliere’s reliance on Davis v. Naini, 490 Mich. 239 (2011) also is misplaced.
In Davis, the Michigan Supreme Court held that a plaintiff could not bring a time-barred
malpractice claim against a new defendant based on a timely NOI letter sent to other
properly named defendants. Id. at 250-59. The Michigan Supreme Court explained
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that allowing the plaintiff to add new defendants to the complaint without serving them
with an NOI would lead to the inequitable result of plaintiffs being able to circumvent the
statute of limitations to bring in an “infinite number of potential nonparty defendants by
simply submitting an NOI to a single defendant.” Id. at 258. There is no similar danger
here. Lake mailed a timely NOI to Cavaliere on February 1, 2012, more than 182-days
prior to the filing of her lawsuit.
CONCLUSION
Because Lake acted in good faith in her efforts to send the NOI to Cavaliere by
mailing the NOI to Cavaliere’s prior business address, and where Cavaliere admittedly
had actual notice of Lake’s alleged medical malpractice claim, defendant’s motion to
dismiss for alleged failure to serve the NOI (Doc. 14), or for alleged defects in the
content of the NOI, hereby is denied.
IT IS SO ORDERED.
Dated: July 3, 2013
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
July 3, 2013, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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