Johnson v. Williams et al

Filing 92

ORDER granting in part and denying in part 43 Motion for Summary Judgment. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DYNELLE JOHNSON,
Case No. 15-13856
Plaintiff,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
SONJA WILLIAMS, ET AL.,

U.S. MAGISTRATE JUDGE
DAVID R. GRAND

Defendants.
/
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT [43]
Plaintiff filed a complaint on November 2, 2015 against Defendant
Wolverine Human Services, Incorporated (WHS) and individual Defendants Sonja
Williams, Domonique Cobb-Clements, Jonathan Howard, Michael Kennebrew,
Kristi Einem-Smith and Judith Fischer-Wollack. Plaintiff, the adoptive mother and
personal representative of the estate of the deceased Aaron Cauvin, brings §1983
claims of deliberate indifference to Aaron’s mental health issues against various
employees of the private non-profit treatment facility WHS. She also raises a
Monell claim against WHS and state claims of negligence, gross negligence,
willful and wanton misconduct, and wrongful death against WHS employees
Kennebrew, Howard, Williams, Cobb-Clements and vicarious liability/respondeat

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superior and principal-agent relationship claims against Defendants WHS, FischerWollack and Einem-Smith. [11].
Defendants filed a Motion for Summary Judgment [43] on October 3, 2016.
Defendants responded [74] on January 27, 2017 and Plaintiff replied [75] on
February 24, 2017. An initial hearing was held on the Motion on May 17, 2017.
The Court ordered supplemental briefing and invited amicus briefing on the federal
claims. Plaintiff and Defendants submitted supplemental briefs on July 12, 2017
[85, 86]. The Michigan Association for Justice and the Michigan Defense Trial
Counsel submitted amicus briefs on July 12, 2017 as well [87, 88]. A hearing was
held on August 31, 2017. For the reasons stated below, Defendants’ Motion [43] is
GRANTED in part as to the dismissal of Count VIII and the dismissal of all
claims against Defendant Judith Fischer-Wollack and DENIED in part as to all
other claims.
FACTUAL BACKGROUND
Aaron Cauvin (“Aaron”) was born on April 27, 1999. His birth parents had
their parental rights terminated when Aaron was about four years old. Aaron and
his brother N.C. were taken as foster children by Dynelle Johnson (“Johnson”) in
2006. Two years later, Johnson adopted both Aaron and N.C., at the ages of nine
and six respectively.

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When Aaron turned fourteen, he began to act out in school and at home. He
spoke of suicide, cut himself, and intentionally crashed a stolen car into a light
pole. Aaron was hospitalized on numerous times for severe depression and suicide
ideation. From October 3, 2014 through October 21, 2014, Aaron was admitted to
StoneCrest Center, a Behavioral Hospital, and was considered to be a high risk of
violence to himself and others, and to SafeHaus, Inc., a Children’s Intensive Crisis
Residential facility that monitors children for suicide ideation. Aaron was
discharged on October 21, 2014 and returned to Johnson’s home.
On October 29, 2014, Aaron’s psychological situation had caused tensions
to rise in the Johnson home, and Ms. Alisha Weatherby, a Child Protective
Services (“CPS”) specialist, removed Aaron from Johnson’s home pursuant to an
Order from the Macomb County Circuit Court. Ms. Weatherby is a social worker
with a degree in psychology. She transported Aaron to WHS, and testified that, at
the time he was admitted to WHS, she did not observe any evidence that Aaron
was actively suicidal or exhibiting any signs of suicide ideation. [43-10]. She did
inform Defendant Williams that Aaron had previously attempted to commit
suicide. [74-16 at ¶¶3-6].
WHS is a non-profit child-care institution. Upon his intake, a packet was
completed that indicated Aaron appeared to be in a good physical and emotional
state, but presented an increased risk for suicide. [43-11]. It is undisputed that

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WHS was made aware of Aaron’s mental health history, and that he was recently
hospitalized for a suicide attempt. [74-15; 74-16]. During the intake process,
Defendant Williams was shown Aaron’s self-inflicted cutting scars as well. [7417]. Aaron’s belt was listed on his clothing inventory, but was not taken from him,
because it was not policy at the time to take belts from shelter clients. [74-18].
Aaron was placed in a room with exposed ceiling plumbing [74-19] on the
orientation level.
On October 30, 2014, Defendant Cobb-Clements completed a PTSD
checklist that inquired about Aaron’s feelings in the past month, and a Mental
Health Screening Form III, which sought information about Aaron’s “entire life
history, not just [his] current situation.” [74-24, emphasis in the original]. In the
PTSD checklist, Aaron indicated that he has been feeling emotionally numb and
unable to love those close to him, and felt as if his future would be cut short. [7423]. In the mental health screening form, Aaron indicated that he had been
depressed for weeks at a time in the past, and has had thoughts about killing
himself, and had previously attempted suicide. [74-24]. Defendant Cobb-Clements
noted that she asked Aaron “if he was having current suicidal/homicidal ideations”
and Aaron “denied any current ideations.” Id. Defendant Cobb-Clements also
noted that Aaron would have a follow-up with a psychiatrist and psychologist. [Id].

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At 3:00 pm on October 30, 2014, Aaron entered his room for mandatory
reflection time during the shift change. [74-29]. At the time, WHS’ line of sight
policy, as written, did not require that staff visually observe the clients every
fifteen minutes. [74-30]. Aaron was not seen by a staff member until 3:30pm,
when he asked if he had to stay in this room after completion of reflection time. He
was told by Defendant Howard that it was up to him. [74-31]. Around that time,
Defendant Williams observed Aaron poke his head out of the room, and she
informed him that he needed to exit it. [74-32]. Defendant Williams did not wait to
see if Aaron had actually followed her directive. Id.
Defendant Williams separated the children into two groups, with one going
downstairs to the recreation room, while the other remaining in the third floor
lounge. [43-13 at 6]. Defendant Kennebrew was informed that Aaron was assigned
to the group of children staying in the lounge. [74-34]. Because of an error in the
head count, Aaron was not identified as missing. Defendant Kennebrew reported
that he looked through the bedroom windows to see if there were any missing
children, however he later admitted that he realized that he could not see the
entirety of the room though the window. [43-13 at 6].
While Defendant Kennebrew moved the children into a line to lead them
downstairs, one of the residents commented that he had urinated on the new kid’s
bed. This resident entered Aaron’s bedroom, and ran out, exclaiming “He’s dead!”

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[Id]. Aaron was found hanging from the exposed ceiling plumbing pipes.
Defendant Kennebrew yelled, “The new boy has a belt around his neck and I think
he’s dead!” [74-36]. Defendant Kennebrew did not take Aaron’s body down, nor
did he attempt any life-saving efforts.
ANALYSIS
1. §1983 CLAIMS
a. STATE ACTOR
It is undisputed that WHS is a private, non-profit corporation. The issue of
whether a private corporation is a state actor, or acted under the color of state law,
as required by section 1983, is a threshold question of law for the Court to
determine. Neuens v. City of Columbus, 303 F. 3d 667, 670 (6th Cir. 2002). In the
Sixth Circuit, a private entity can qualify as a state actor under three different tests:
(1) the state compulsion test; (2) the symbiotic relationship, or substantial nexus
test; and (3) the public function test. Wolotsky v. Huhn, 960 F. 2d 1331, 1335 (6th
Cir. 1992). Plaintiff argues that the public function test is most applicable here to
establish WHS as a state actor.
THE PUBLIC FUNCTION TEST
To qualify as a state actor under the public function test, a private entity such
as Defendant must be performing a function that has been exclusively reserved for
the state. Carl v. Muskegon Cty., 763 F.3d 592, 597 (6th Cir. 2014). These

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exclusive functions have been narrowly cabined to include such activities as
“holding elections, exercising eminent domain, and operating a company owned
town.” Chapman v. Higbee Co., 319 F.3d 825, 833 (6th Cir. 2003).
Defendants point out that there is no binding state law mandating that the
state of Michigan house teenagers, like Aaron, who have been removed from their
home. See M.C.L. § 400.18d (The county department of social welfare, upon
authorization of the county board of supervisors, may operate an emergency
receiving facility for the temporary care of homeless, dependent or neglected
children) (emphasis added). Defendants state that these permissive regulations
necessarily do not establish the state as the exclusive actor in these situations.
In response, Plaintiff cites Meador v. Cabinet for Human Res., 902 F.2d 474,
476 (6th Cir. 1990), in which the Court observed that it had found that “due
process extends the right to be free from the infliction of unnecessary harm to
children in state-regulated foster homes,” and cited approvingly cases that
“analogize[d] the state’s role in placing children in foster homes to the mental
institution and prison settings in which state liberty has been clearly established for
‘deliberate indifference’ to the plight of individuals in detention.” Lintz v. Skipski,
25 F.3d 304, 306 (6th Cir. 1994). This supports characterization of WHS as a state
actor under the functional test, since the Sixth Circuit has found that context
matters, and that care provided in a custodial setting is an activity traditionally

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reserved to the state, which has absolute dominion over a detainee’s treatment. See,
e.g., West v. Atkins, 487 U.S. 42 (1988); Carl v. Muskegon Cty., 763 F.3d at 597.
Defendants counter, arguing that Meador relied on a Kentucky statute,
which is distinct in material part from the Michigan statute at issue here. Thus, the
Kentucky statute provides in pertinent part that “the cabinet shall arrange for a
program of care, treatment and rehabilitation of the children committed to it," and
"the cabinet shall be responsible for the operation, management and development
of the existing state facilities for the custodial care and rehabilitation of children . .
. .” Ky. Rev. Stat. Ann. § 605.100 (emphasis added). Defendants thus argue that
this decision is not applicable to the matter at hand because Michigan law, as
described above, does not mandate that the state handle custodial care of children
exclusively.
It is instructive that Lintz, 25 F.3d at 305, which cited Meador approvingly
for the proposition that “due process extends the right to be free from the inflicting
of unnecessary harm to children in state-regulated foster homes,” was a case that
arose in Michigan, and concerned Michigan actors. Significantly, the Court did not
distinguish the case based upon the Michigan law concerning custodial child-care,
but rather directly applied the Meador precedent to conclude that the social
workers were on notice. Id.

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Plaintiff points out that the Michigan Social Welfare Act, as amended in
1973, provides that the state of Michigan shall provide services to children that
include, in relevant part,
. . . halfway houses, youth camps, diagnostic centers, state operated
regional detention facilities, regional short-term treatment centers,
group homes, and other facilities and programs established with the
approval of the legislature to provide an effective program of out-ofhome care for delinquent or neglected children committed to or placed
in the care and custody of the department by probate courts, courts of
general criminal jurisdiction, or, where provided by law, the voluntary
action of parents or guardians.
Mich. Comp. Laws Ann. § 400.115(a). It also allows the state to include the use of
private agencies such as WHS to protect children, by “. . . [e]nter[ing] into
contracts necessary for the performance of its powers and duties and the execution
of its policies.” M.C.L. § 400.115a(1)-(f).
It is clear that the state law at issue is not materially different from the
Kentucky law presented in Meador, and that the state should be considered an
exclusive actor in caring for children, and, in that capacity, can contract with
private organizations. Thus, Defendant can be considered a state actor, under the
law established by this precedent, concerning the due process protections existing
for harm occurring in foster homes.
Defendants argue that they cannot possibly be considered a state actor
because, if they are, then individuals who take in children placed by DHS, such as
relatives, could be considered state actors as well. This is not a persuasive since the
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question has already been decided. In the context of children placed in foster-care
homes, liability does not extend to the foster parents, but rather to the state actors,
i.e. social workers. These individuals have placed the children in those homes, and
have responsibility to ensure the safety of the children they place. See, e.g., Lintz,
25 F.3d at 305 (“due process extends the right to be free from the infliction of
unnecessary harm to children in state-regulated foster homes”); Brown v. Hatch,
984 F. Supp. 2d 700, 709 (E.D. Mich. 2013) (finding that foster parents are not
state actors).
In this case, Aaron was placed into Defendants’ care by a Court order. As
observed by Plaintiffs in their supplemental brief, the Court order placed Aaron
into protective custody and “placed [him]/returned [him] to the [DHS] for care and
supervision and/or placed at [Macomb County Juvenile Justice center] pending his
preliminary hearing.” [85-4 at 3]. The DHS elected to place Aaron in the custody
of Defendant WHS to ensure his care and safety, it was expected that the standard
of care there would be equivalent to state requirements, since the state of Michigan
has the responsibility to ensure appropriate care of children under the extensive
scheme laid out under the Child Care Organizations Act and the Social Welfare
Act. Therefore, WHS is a state actor under the terms of the public function test.

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b. APPLICABLE STANDARD FOR PLAINTIFF’S CONSTITUTIONAL CLAIMS
In the supplemental brief, Plaintiff argues that, in cases of involuntary civil
commitment such as applied to Aaron, the Fourteenth Amendment due process
protections are determined by whether Defendants’ actions were based on accepted
professional judgment, rather than a deliberate indifference standard applicable to a
convicted criminal. See Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452, 73 L.
Ed. 2d 28 (1982); Terrance v. Northville Reg'l Psychiatric Hosp., 286 F.3d 834,
848 (6th Cir. 2002).
Youngberg, 457 U.S. at 309, involved a mentally disabled man, Nicholas
Romeo, whose mother requested the Court involuntarily commit, because she was
unable to control his violence or to otherwise care for him. The Court ordered
Romeo committed to the Pennhurst State School and Hospital pursuant to the
State’s involuntary commitment provision. Id. at 310. Romeo suffered injuries at
the hands of other residents, and his mother filed a suit against the facility,
bringing §1983 claims under the Eighth and Fourteenth Amendments. Id. The
Supreme Court concluded that the Fourteenth Amendment standard for
involuntarily committed individuals was whether professional judgment in fact had
been exercised.
Terrance, 286 F.3d at 848, was a case, brought by the father of an
involuntarily committed mental patient, who had died in a state psychiatric

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hospital. The Sixth Circuit ruled the decedent enjoyed Constitutional protections
under the Eighth Amendment against cruel and unusual punishment, as well as
Fourteenth Amendment due process clause. Id. Specifically, the Court held that
under the Fourteenth Amendment, individuals subject to involuntary civil
commitment enjoyed heightened protection, and civil liability against professional
staff results when a decision “is such a substantial departure from accepted
professional judgment, practice or standards as to demonstrate that the person
responsible actually did not base the decision on such a judgment.” Id. Because the
Fourteenth Amendment duty to provide reasonable safety applies “when the State
takes a person into its custody and holds him there against his will,” Plaintiff
argues that, since Aaron was placed by Court order into State custody at WHS
without any personal input as to his placement, the heightened protections under
the Fourteenth Amendment found in Youngberg and Terrace apply.
Here, Aaron was involuntarily removed from his home by a Court order
when his adoptive parent indicated that she was unable to care for him due to
violence and threats. Aaron had no control over the Court process or its placement
decision. Therefore, the heightened protection under the Fourteenth Amendment
applies to this case, rather than a deliberate indifference standard.

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c. CLAIMS AGAINST INDIVIDUAL DEFENDANTS
i. JUDITH FISCHER WOLLACK
1. INDIVIDUAL CAPACITY
Defendant Fisher-Wollack is the CEO and designated licensee for the WHS.
To be liable in an individual capacity for §1983 claims, it must be shown that
Fisher-Wollack “either encouraged the specific incident of misconduct or in some
other way directly participated in it.” Heyerman v. Cty. of Calhoun, 680 F.3d 642,
647 (6th Cir. 2012) (citing Hays v. Jefferson Cnty., 668 F.2d 869, 874 (6th Cir.
1982)). “At a minimum, a plaintiff must show that the official at least implicitly
authorized, approved, or knowingly acquiesced in the unconstitutional conduct of
the offending officers.” Id.
Plaintiff alleges that there is a §1983 claim against Defendant FischerWollack for her approval and authorization of a constitutionally deficient written
line-of-sight policy, the lack of a site-specific suicide prevention policy, and a
policy that allowed children to keep their belts unless they were determined to be
actively suicidal. [85 at 26-27]. However, there are no citations to deposition
testimony showing any personal involvement in the creation or authorizations of
these policies, therefore this supports a Monell claim rather than individual
liability.

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Indeed, in the provided deposition excerpts, while Defendant FischerWollack states she has “the responsibility of financial, policy, [and]
administration” for WHS, there is no evidence that she was personally involved in
reviewing the policies and/or had knowledge or approval of these policies. In fact,
when directly questioned about the policies at Aaron’s facility, she stated that she
did not have personal knowledge about the policies and procedures and specific
environments of the various facilities. [74-109]. Therefore, summary judgment is
granted as to any §1983 claim against individual Defendant Fischer-Wollack.
2. OFFICIAL CAPACITY LIABILITY
Plaintiff seeks to bring a §1983 claim against Fischer-Wollack, in her
official capacity, for failure to train. Courts treat an official-capacity suit seeking
monetary damages as “an action against an entity of which an officer is an agent,”
because a Plaintiff who seeks “to recover on a damage judgment in an officialcapacity suit must look to the government entity itself.” Kentucky v. Graham, 473
U.S. 159, 166 (1985).
In this case, Plaintiff brings claims against Fischer-Wollack in her official
capacity as CEO of WHS, alleging that her official involvement allowing
inadequate training, renders her liable for the alleged constitutional violations
perpetuated by the other Defendants in their individual capacities. Because this suit
is brought against the individual Defendant in an official capacity, and Plaintiff is

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seeking monetary damages, the Court must treat the claim against individual
Defendant Fischer-Wollack as a claim against the municipal entity of WHS.
Indeed, the allegations against Fischer-Wollack in her official capacity mirror
those brought against WHS, which are examined in section d of this Order, infra
pp. 23-29. Therefore, summary judgment is granted on this claim, and all §1983
claims against Defendant Fischer-Wollack are dismissed.
ii. KRISTI EINEM-SMITH
1. INDIVIDUAL CAPACITY
Defendant Einem-Smith is the Chief Administrator of the WDATC. Plaintiff
alleges that her conduct substantially departed below the accepted professional
judgment because she, inter alia, “permitted and encouraged a policy that did not
require Aaron, a new admittee, to be placed on constant observation until he met
with a Qualified Mental Health Professional,” maintained a custom and practice of
allowing untrained and undereducated Youth Care Workers to screen admittees for
suicidal risk factors, failed to have or implement a site-specific suicide prevention
policy, and allowed new admittees to keep their belts. [85 at 28-29].
To have individual liability, it must be shown that the official at least
implicitly authorized, approved, or knowingly acquiesced in the unconstitutional
conduct of the offending officers.” Heyerman, 680 F.3d at 647 (citing Hays, 668
F.2d at 874). Plaintiff has presented facts of which a reasonable juror could

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determine that Defendant Einem-Smith encouraged and directly participated in the
misconduct at issue. First, she personally received information set forth in the
intake form that Aaron had a potential to harm himself and yet denied him constant
observation. [85-43]. Secondly, she admits knowledge of the practice of unlicensed
care workers who provided Aaron with screenings of his mental health condition,
suicide risk factors, and suicidality. [85-44; 85-45]. Further, Defendant EinemSmith, as the Chief Administrator of the facility, allowed a practice that did not
require the removal of belts from recent admittees.
The fact-finder could find that these factual allegations constituted
substantial departures from professional judgment, leading to the suicide of Aaron,
in the context of the extreme disregard discussed above for a child with a known
history of self-harm and suicide attempts. Therefore, summary judgment is denied
as against Defendant Einem-Smith in her individual capacity.
2. OFFICIAL CAPACITY
As explained above, the claim against Defendant Einem-Smith in her official
capacity is properly brought as a claim against the municipal Defendant, so this
claim is dismissed.
iii. DOMONIQUE COBB-CLEMENTS
Defendant Cobb-Clements is employed by WHS as a Facility Case Manager.
In that capacity, she administered mental health screening to Aaron. The mental

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health screening form employed in the instant case included guidelines that
provided: “[i]t is strongly recommended that a qualified mental health specialist be
consulted about any ‘yes’ response to questions 3 through 17.” [85-47]. Aaron
answered ‘yes’ to eight of these questions, and yet Defendant Cobb-Clements did
not consult with a qualified mental health specialist. [85-48]. Plaintiff’s expert Dr.
Dvoskin stated that the actions of Cobb-Clements were grossly inadequate.
Further, Defendant Cobb-Clements knew that Aaron indicated that he had been
feeling emotionally numb, unable to love those close to him, and felt that his future
would be cut short. [74-23].
In the mental health screening form, Aaron indicated that he had been
depressed for weeks at a time in the past, has had thoughts about killing himself,
and had previously attempted killing himself. [74-24]. While Defendant CobbClements also noted that Aaron would have a follow-up with a psychiatrist and
psychologist, no action was taken before Aaron killed himself. Id. Further, after
speaking with Aaron’s mother, Defendant Cobb-Clements also learned that Aaron:
(1) Was adopted;
(2) Was exposed to alcohol and drugs in utero;
(3) Had been sexually abused as a young child;
(4) Masturbated while watching Ms. Johnson in the shower;
(5) Was expelled from school for selling drugs;
(6) Stole the mayor's car and crashed it;
(7) Was on juvenile probation;
(8) Formerly was at the Macomb Juvenile Justice Center;
(9) Had sexual encounters with other children;
(10) Flashed his younger brother with his penis;
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(11) Liked to watch pornography;
(12) Was physically aggressive towards his mother;
(13) Had a history of playing with fire;
(14) Had a history of animal cruelty, including breaking a small
dog's leg; and
(15) Required mental health hospitalizations for depression.
[85 at 33; citing 85-49].
Considering the subjective knowledge of Defendant Cobb-Clements at the
time, it is a question for the jury to determine whether her failure to reasonably
conclude that Aaron posed a risk of suicide represented a substantial departure
from professional judgment. Therefore, summary judgment is denied as to
Defendant Cobb-Clements.
iv. SONJA WILLIAMS
Defendant Sonja Williams is a Shift Coordinator, Supervisor, and Senior
Youth Care Worker. She was in charge of Aaron’s initial intake, and it was her
responsibility to screen Aaron for suicidal ideations. [74-13 at 108-109]. During
intake, Defendant Williams learned that Aaron was a cutter, was just removed
from his family home by Court order, and had attempted suicide in the past. [8550; 85-11; 85-51]. Further, she neglected to perform the required headcount
following a shift change, which allowed Aaron to remain uncounted and missing.
She also failed to inform Defendants Kennebrew and Howard about Aaron’s
psychological history, suicide attempt, self-cutting, or prior hospitalizations for
depression. [85-53; 85-54]. Williams also assigned Aaron to Kennebrew’s
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supervision when it was known that he only had been employed as Youth Care
Worker at WHS for three days, and knew or should have known that he was
already supervising eight children, in direct violation of Michigan’s mandatory
staff-to-child ratio. [85-55; 85-56].
Considering the totality of the evidence, a reasonable fact-finder could
determine that Defendant Williams substantially deviated from professional
judgment in her treatment of Aaron at WHS by disregarding his risk of suicide.
Summary judgment as to Williams is therefore denied.
v. JONATHAN HOWARD
Defendant Howard was a Youth Care Worker responsible for supervising
children. Defendant Howard allowed Aaron to remain in his room following the
mandatory reflection time. [85-32]. This deviated from line-of-sight policy
because, when he was in his room, blind spots ensured that Aaron would remain
out of sight. Further, the line-of-sight policy was also violated, because that policy
dictates that the group should not be spilt for any reason. [85-31]. By allowing
Aaron to remain in his room, the group was in fact split. Further, Michigan
requires that Youth Care Workers perform headcounts of children during a shift
change, and if a group has been spilt. [85-53]. Therefore, Howard violated a state
requirement by failing to perform a headcount. Moreover, by allowing Aaron to

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remain in his room, Howard also violated the policy that new admittees, assigned
to the orientation level like Aaron, are to be closely supervised. [85-64].
Finally, WHS Youth Care Workers are required to “read all documented
charts and/or logbooks at start of shift.” [85-63]. Aaron’s chart detailed a reported
attempted suicide, a history of self-cutting, and his recent hospitalization for
depression. [85-11]. Howard testified that, not only did he fail to read Aaron’s
chart at the start of his shift, but that he never read any charts, and merely “focused
more on the logbooks.” [85-63].
Considering the evidence on a whole, a reasonable fact-finder could find that
Defendant Howard departed substantially from professional judgment by violating
line-of-sight policy by allowing Aaron to remain alone in his room, failing to do a
head count, and not reviewing Aaron’s charts. Accordingly, summary judgment is
denied as to Howard.
vi. MICHAEL KENNEBREW
Defendant Kennebrew was a Youth Care Worker at WHS assigned to
supervise Aaron on the day he committed suicide. [85-55]. Defendant Kennnebrew
was exceeding the allowed staff-to-child ratio when he supervised nine children,
despite the fact that the ratio was one-to-four for shelter children such as Aaron,
and one-to-seven for abuse/neglect residential children. [85-69]. Further,
Defendant Kennebrew also violated the line of sight policy by failing to ensure that

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Aaron remained in his line of sight. Defendant Kennebrew did not conduct the
state mandated periodic room check, and therefore was unaware that Aaron was
alone in his room. [85-52]. Moreover, Defendant Kennebrew admitted that there
was a blind spot in the rooms because of the window, and that there was no way,
without physically entering the room, to view Aaron in the closet area where he
hung himself. [85-19]. Similar to Howard, in contravention of required policy,
Kennebrew failed to review Aaron’s intake documentation charts at the beginning
of his shift.
Kennebrew should have known that, as a child who was new to the facility,
Aaron was required to be supervised more closely than other children. [85-64].
However, he violated the line of sight policy, failed to perform room checks,
significantly exceeded the staff-to-child ratio, and failed to supervise Aaron more
closely than the other older residents in the lounge. Additionally, Michigan
regulations, and Plaintiff’s expert as well, indicate that workers should be trained
in ligature cut down technique, and have the necessary tools available. On the day
that Aaron killed himself, Kennebrew did not have access to cut down tools, and
made no attempt to cut Aaron down or to provide any life saving efforts. [74-90;
74-36].
Kennebrew was assigned to supervise Aaron. As a result of the combination
of factors discussed above, Aaron was left to his own devices in his room for an

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undetermined amount of time. This unsupervised time enabled him to hang himself
from the exposed pipes in his closet, and not to be discovered until he was, per
Kennebrew, “blue.” In fact, Aaron was only discovered when a fellow resident
bragged about harassing him, and opened his room to show the fellow residents
that he had in fact urinated on his bed. These actions led to the discovery of Aaron,
and at no time did Kennebrew notice that his headcount was missing a child. He
never committed a room check that would have enabled him to discover Aaron was
alone in his room. There is a question for the jury of whether Defendant
Kennebrew’s actions substantially departed from professional judgment, and
therefore summary judgment is denied as to Kennebrew.
d. THE MONELL CLAIM
To show that a policy or custom led to an alleged violation of their civil
rights, a Plaintiff can identify one of the following: “(1) the municipality’s
legislative enactments or official policies; (2) actions taken by officials with final
decision-making authority; (3) a policy of inadequate training or supervision; or (4)
a custom of tolerance of acquiescence of federal violations.” Baynes v. Cleland,
799 F.3d 600, 621 (6th Cir. 2015), cert. denied, 136 S. Ct. 1381, 194 L. Ed. 2d 361
(2016). Further, Plaintiff must also show that, “through its deliberate conduct, the
municipality was the ‘moving force’ behind the injury alleged . . . and must
demonstrate a direct causal link between the municipal action and the deprivation

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of federal rights.” Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397,
404 (1997). To show that a training program violates substantive due process, a
Plaintiff must show “(1) that the training program was inadequate for the tasks that
officers must perform, (2) that the inadequacy was the result of the city’s deliberate
indifference, and (3) that the inadequacy was ‘closely related to’ or ‘actually
caused the . . . injury.’” Criswell v. Wayne Cty., Kentucky, 165 F.3d 26, *5 (6th
Cir. 1998).
Plaintiff argues that WHS violated the 14th Amendment in several ways,
first alleging that there was inadequate training; and next asserting there was a
policy, practice and custom of: (1) placing children in their rooms for reflection
time without conducting 15-minute visual checks; and (2) not removing belts from
children during the intake process, including children with suicide risk factors.
Plaintiff also points to WHS’ failure to have and implement a suicide prevention
policy at the Wolverine Diagnostic Assessment and Treatment Center
(“WDATC”). As detailed below, Plaintiff has shown evidence from which a
finder-of-fact reasonably could conclude that WHS violated the 14th Amendment
due process clause, due to a substantial departure from accepted professional
judgment.

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i. INADEQUATE TRAINING
Per the State of Michigan’s Suicide Prevention Policy for youth taken into
residential facilities:
All staff who routinely work with youths are trained in the
identification and management of suicidal youth. The initial training
will be a minimum of eight (8) hours and annual refresher training
will be a minimum of two (2) hours. Response drills will be part of
the training.
[74-90 at 2]. WHS argues that their staff was trained, presenting testimony from
Mr. Barr, the State of Michigan licensing consultant, that “during orientation some
training on suicide is always provided to every direct care worker.” [75-2 at 151].
However, the testimony of the individual Defendants, and of WHS Senior Vice
President Mr. McCree, calls into question whether the Defendants actually
received the state required suicide training.
First, Mr. McCree testified that the training records for the individuals would
show whether or not the required annual training was provided, and that he would
defer to the accuracy and completeness of those logs as to whether an employee
attended suicide prevention training. [85-23 at 117]. When the training records for
the individual Defendants are examined, there is no indication that the individuals
received even a single training session on suicide prevention, let alone annual
training. [85-24; 85-26; 85-27; 85-28]. Per the training log, only Defendant

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Williams received a single suicide assessment and intervention training of 2 hours
on April 19, 2007, which she could not recall [85-26 at 19; 74-111 at 88].
This creates a question of fact for the jury as to whether the required training
on suicide identification and intervention provided for employees at WHS was
inadequate. Further, the fact that none of the named Defendants appear to have
received any of the required training further points to a systematic indifference
towards the training of staff that come into contact with children who are at risk for
suicidal tendencies.
Further, this lack of training is “closely related to” or “actually caused the . .
. injury” of Aaron’s suicide since he remained unwatched and retained his belt,
despite his known history of suicidal tendencies. Moreover, his obvious depressed
state of mind after being given up by his adoptive mother, and his feeling that his
life would be cut short, should have trigged an appropriately enhanced treatment
from the individual Defendants. See Criswell, 165 F.3d 26. Therefore, summary
judgment is denied as to the Monell claim, as related to a practice of inadequate
training.
ii. PLACING CHILDREN IN THEIR ROOMS FOR REFLECTION TIME
WITHOUT CONDUCTING 15-MINUTE VISUAL CHECKS
Michigan Admin. Code R. 400.4127 required that:
When residents are asleep or otherwise outside of the direct
supervision of staff, staff shall perform variable interval eye-on

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checks of residents. The time between the variable interval
checks shall not exceed 15 minutes.
[85-29]. It is undisputed that, at the time of Aaron’s suicide, the written policy at
WHS did not include a requirement for staff to perform 15-minute checks on
children when they were in their bedrooms. [85-30; 85-31]. The Michigan Welfare
Licensing Consultant who investigated Aaron’s suicide stated that WHS’ line-ofsight policy fell well below the minimum standard required by the State of
Michigan. [85-32; 85-33; 85-34]. This deliberate choice of policy was extremely
deficient, and was a direct causal link to Aaron’s suicide. He was left alone in his
room for an undetermined length of time, out of sight, in the area where he hung
himself, when he was known as someone with a history of suicide who felt that his
life was going to be cut short. The time he was left unwatched was long enough for
him to get up, hang himself, and die, well before anyone found him. This is clearly
a policy that moves beyond mere negligence, and Plaintiff has established this
policy as being constitutionally deficient.
iii. NOT REMOVING BELTS FROM CHILDREN DURING THE INTAKE
PROCESS, INCLUDING FROM CHILDREN WHO HAVE SUICIDE
RISK FACTORS

Per the State of Michigan’s policy, while removal of a youth’s clothing is
avoided whenever possible during the intake process, this excludes the removal of
belts and shoelaces. [85-22]. At the time of Aaron’s suicide, WHS did not have a
policy to remove belts or shoelaces. [85-36]. WHS employees were only instructed
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to remove belts if they believed the children were considered a suicide risk or risk
to harm others. [85-37; 85-38]. This policy, in direct violation of the State of
Michigan’s policy, left the decision to remove belts based on the untrained
opinions of staff concerning the risk of suicide that a child presented at intake. This
is a situation in which a finder-of-fact reasonably could conclude that this policy
represented a substantial departure from professional judgment that led to Aaron
hanging himself in his closet with his belt. Therefore, summary judgment is denied
as to this policy.
iv. FAILURE TO HAVE AND IMPLEMENT A SUICIDE PREVENTION
POLICY
The State of Michigan required each facility to “develop and implement
standard operating procedures (SOPs) pertaining to suicide prevention.” [85-22]. It
is undisputed the WDATC facility in which Aaron was placed did not have a sitespecific suicide prevention policy. [85-35]. Further, while Defendants state that
they had an overarching suicide prevention policy, it is unclear what that actual
suicide prevention policy in fact was. [74-96]. Defendants’ response brief
identifies Plaintiff’s exhibit 89 as the suicide prevention policy. [75 at Pg Id 32].
However, that policy is the State of Michigan DHS requirements for facilities, as
described and referenced above, and does not qualify as the facility’s SOPs.
Further, as described above, the facility in which Aaron was placed did not comply
with the requirements of this policy in many respects, and there is an extreme
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failure in implementation of the required policy, leaving children such as Aaron
vulnerable. Even if this was considered a policy specific to the WDATC, there is
no evidence that any of the line-staff who were in close contact with the children at
the facility were even aware of the policy, or had access to it. [74-167]. A finderof-fact could find that the failure to have and implement a suicide prevention
policy represented a substantial departure from professional judgment, leading to
the suicide of Aaron.
e. QUALIFIED IMMUNITY
If the Court determines that Defendants are to be treated as state actors, there
is disagreement between the parties whether they would enjoy the qualified
immunity of actual state parties, since they are merely imputed to be state actors.
When assessing whether private parties deemed state actors possess the qualified
immunity available to actual state parties, a Court must “consider both the
purposes of qualified immunity protection and the nature of the relationship
between the state and the putative private party.” Bartell v. Lohiser, 215 F.3d 550,
556 (6th Cir. 2000). “[A] private party may not assert qualified immunity when the
incentives for a particular government function are fundamentally inconsistent with
the foregoing purposes of qualified immunity protection.” Id.
Plaintiff argues that the immunity in this case should be analogized to
private prison cases in which the Supreme Court has found prevailing economic

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incentives for private actors providing services, in the penological context, to
“essentially render qualified immunity protection superfluous.” Id. at 557 (citing
Richardson v. McKnight, 521 U.S. 399, 409-10 (1997)).
Defendants, in turn, argue that the Bartell decision is appropriate here. That
case concerned a non-profit organization that contracted with a state social services
agency for the provision of foster care services, and which instituted proceedings
ultimately to terminate parental custodial rights. Id. at 553. In granting qualified
immunity in that case, the Court noted the close supervision of the actions of the
non-profit by the state, as well as the fact that the act of providing foster care
services concerned “[d]ecisions pertaining to the welfare of a child, which may, as
in this case, result in the termination of the natural bond between parent and child,
require the deliberate and careful exercise of official discretion in ways that few
public positions can match.” Id. at 557.
The Court believes that Bartell is distinguishable from this case. In Bartell,
the state was closely involved in directly supervising the actions of the private
actor; including appointing a caseworker to “monitor the appropriateness and
sufficiency of [the private actor’s] foster case plans” and specifically approving the
plans for the child at issue in the case. Id. In contrast, here, once Aaron was handed
off to WHS, while it was providing an exclusive function of the state as described
above, there was no further direct involvement by the state; rather the decisions

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were made, under WHS’ policy, by their employees. Importantly, the policies
employed by WHS were not up to state standards, which is indeed a significant
element underlying the theory of Plaintiff’s complaint. Therefore, there was no
approval and monitoring by the state of the treatment of Aaron, or of any of the
other children housed by WHS. There is certainly no evidence before the Court of
any close supervision on a level similar to that in Bartel.
Moreover, importantly, Bartel dealt with Defendants who were social
workers in charge of placement decisions, and who petitioned the Court to
terminate the parental rights of Bartel. Id. at 554. As the Court pointed out, the
decision to terminate the parental relationship are too important to encumber a
necessarily delicate decision making process with the threat of litigation.
Therefore, the purpose of qualified immunity was best served through its extension
to the private actors in Bartel. Id. at 556.
In effect, the private actor in that context was taking action to prevent the
child from being harmed. In contrast, in this case, the private actor had no role in
the removal of the child from parental custody, and it is not alleged that WHS
would ever, in any circumstance, play that role with any child in its care. Rather, it
housed the children, and was charged with ensuring their safety. This is especially
relevant since the majority of the Defendants have only a GED, and consequently
have no relevant training in social work. The nature of the incident in this case, and

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the role of the Defendants in the child-care functions of the state, are vastly
different from those in Bartel. In the case of Aaron, Defendants tragically failed
their role to ensure the safety of a resident, and indeed were a direct contributing
cause in his death. Considering the significant differences between the two cases,
the Court is not persuaded that Bartel mandates that the Court find qualified
immunity applies.
This is a case in which the prevailing economic incentives for WHS to
provide services in the child care context “essentially render qualified immunity
protection superfluous.” Id. at 557 (citing Richardson, 521 U.S. at 409-10)). WHS
was bound by at least ten contracts with the state in 2014. [74-41]. These contracts
netted WHS around $25 million in compensation during 2014. [74-42]. If WHS
failed to fulfill the terms and conditions of the contract, which are directly relevant
to state licensing standards, the contract could be revoked. [74-43]. These facts are
more closely analogous to the numerous decisions in the penological context,
which find private actors ineligible for the protections provided by qualified
immunity. See, e.g., Harrison v. Ash, 539 F.3d 510, 521-25 (6th Cir. 2008) (finding
nurses employed by a contractual medical provider have no immunity from
liability for deliberate indifference to a prisoner’s medical needs).
Similar to the analysis in Harrison, there is no intimation here that WHS is
not competitively involved in the state contracted housing of children in Michigan.

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Further, there are no facts presented in this case, in which a child committed
suicide in a private facility amid acts of extreme departure from professional
judgment, and inadequate training and policies, that a lack of qualified immunity
will deter qualified individuals and corporate entities from being involved in the
housing of children in facilities similar to WHS. Indeed, there is no indication that
distraction caused by the threat of lawsuits in the absence of immunity would be
greater than the threat of malpractice and negligence suits that face Defendant here.
Therefore, the Court finds that Defendants are not entitled to qualified immunity.
This ground for summary judgment is denied.
2. STATE LAW CLAIMS
a. CAUSATION AND SUICIDE
With respect to the state law claims, Defendants argue that Plaintiff has not
provided evidence that meets the causation requirements under state law for
suicide cases. Defendants cite Teal v. Prasad, 283 Mich. App. 384, 393, 772
N.W.2d 57, 62 (2009), in support of the proposition that, to establish causation
under Michigan law for suicides, there must be evidence demonstrating the mental
state, thoughts, and suicidal tendencies of the deceased prior to the actual suicide.
Teal concerned a suicide occurring one week after discharge from the
hospital. Id. Michigan Courts have clarified that an important factor in that case
was the fact that the “temporal and causal connection [were] more attenuated.”

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Estate of Pace v. Hurley Med. Ctr., No. 328584, 2017 WL 378732, at *6 (Mich.
Ct. App. Jan. 26, 2017). This case is easily distinguishable. Here, Aaron committed
suicide while still under the care and supervision of Defendant, leaving no
temporal problems with the causation. Therefore, evidence of mental state and
suicidal tendencies of Aaron at WHS is not required.
b. NEGLIGENCE CLAIMS AGAINST DEFENDANTS KENNEBREW,
HOWARD, WILLIAMS AND COBB-CLEMENTS
The Court refers to the analysis of the individual §1983 claims concerning
Defendants Kennebrew, Howard, Williams, and Cobb-Clements above in section
1(b). Considering the totality of the evidence, as examined above, there exists a
legitimate question of fact whether Defendants’ negligent acts were the proximate
cause of the suicide and summary judgment on Count VII is denied.
c. STATE IMMUNITY
Under Michigan law, state immunity for individuals alleged to have
committed negligent acts is determined by the following process:
(1) Determine whether the individual is a judge, a legislator, or
the highest-ranking appointed executive official at any level of
government who is entitled to absolute immunity under MCL
691.1407(5).2
(2) If the individual is a lower-ranking governmental employee
or official, determine whether the plaintiff pleaded an
intentional or a negligent tort.
(3) If the plaintiff pleaded a negligent tort, proceed under MCL
691.1407(2), and determine if the individual caused an injury or
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damage while acting in the course of employment or service or
on behalf of his governmental employer and whether:
(a) the individual was acting or reasonably believed that
he was acting within the scope of his authority,
(b) the governmental agency was engaged in the exercise
or discharge of a governmental function, and
(c) the individual's conduct amounted to gross negligence
that was the proximate cause of the injury or damage.
Odom v. Wayne Cty., 482 Mich. 459, 479-80, 760 N.W.2d 217, 228 (2008).
Plaintiff argues that under Michigan law, private actors are not entitled to
immunity, because they are not government officials or employees under state law.
While immunity may be extended to private actors under state law, the Courts have
been clear that:
A private entity's performance of a governmental function does
not confer governmental agency status on that entity. As noted
in Ross v. Consumers Power Co., 420 Mich. 567, 363 N.W.2d
641 (1984)], p. 616, mental health services, albeit required of a
governmental agency, are commonly provided by private
facilities. The Mental Health Code expressly contemplates the
participation of both public and private mental health facilities
in state and county community mental health programs.
Notwithstanding its performance of a “governmental function”
and its reliance on public funding, New Center retains its
identity as a nongovernmental entity. Its employees are not
county employees. It retains its separate corporate identity and
is governed by its own board of directors. Except as it has
voluntarily obligated itself by contract, New Center is not
required to provide services or to remain in existence. While it
may have been created in response to the recognition of mental

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health needs in Detroit, New Center's creation was not
mandated by law.
We are persuaded of no reason to treat a private entity as a
governmental agency merely because that entity contracts with
a governmental agency to provide services, which the agency is
authorized or mandated to provide.
Jackson v. New Ctr. Cmty. Mental Health Servs., 158 Mich. App. 25, 35, 404
N.W.2d 688, 692-93 (1987); see also Fareed v. G4S Secure Sols. (USA) Inc., 942
F. Supp. 2d 738, 748 (E.D. Mich. 2013) (collecting cases that demonstrate the
well-established line of authority that the performance of a public function by a
private entity does not warrant extending governmental immunity to the private
entity); Roberts v. City of Pontiac, 176 Mich. App. 572, 578, 440 N.W.2d 55, 57
(1989) (finding “no reason to extend the protection of governmental immunity to a
private entity merely because it contracts with the government.”).
Similar to these cases, Defendant WHS is a private, non-profit organization
that, notwithstanding the contractual relationship with the state and its exercise of a
state function, retains its separate corporate identity from the state. See, e.g.,
Jackson, 158 Mich. App. at 35. Therefore, the Court finds that state immunity does
not apply to WHS, or to its employees before the Court as individual Defendants.
Further, even if state qualified immunity applied, given the analysis above of the
individual claims, the Court believes that Plaintiff has met the burden of gross
negligence on these claims.

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d. PARENTAL/FOSTER PARENT IMMUNITY
Defendants ask the Court to extend the Michigan Foster Parent Qualified
Immunity Statute to Defendants, private actors, while the statute previously has
been available only to foster parents under the statute. See M.C.L. § 722.163.
Defendants appropriately admit that they are asking the Court answer a question of
first impression. Judicially extending the reach of state statutes to extend immunity
is inappropriate for a federal court acting under supplemental jurisdiction.
Therefore, the Court declines to extend immunity to the Defendants under the
Michigan Foster Parent Qualified Immunity Statute.
e. DAMAGES AND THE MICHIGAN WRONGFUL DEATH STATUTE
Defendants request summary judgment on all damage claims, above and
beyond those allowed under Michigan’s Wrongful Death Statute, arguing that
damages for Plaintiff’s expectancy of support from her son are inappropriate. They
argue that the statute limits Plaintiff’s damages to expenses stemming from
funeral, burial and medical expenses incurred on the date of death. M.C.L. §
600.2922.
The Michigan Courts addressed the question of children and expectancy
damages under the wrongful death statute in Setterington v. Pontiac Gen. Hosp.,
223 Mich. App. 594, 606-07, 568 N.W.2d 93, 99 (1997). In that case, the Court
endorsed the decision of Thompson v. Ogemaw Co. Bd. Of Rd. Comm’rs, 357

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Mich. 482, 98 N.W. 2d 620 (1959), the use of which the Plaintiff urges and
Defendants deride. In Setterington, the Court stated that pecuniary damages
suffered by the surviving parents of a minor child could in fact extend beyond the
child’s minority. 223 Mich. App. 594, 606-07. The Court held that the Wrongful
Death statute in no way limits those damages to the minority. Id. at 607.
While the opinion acknowledged that the “pecuniary injury” language of the
statute at issue under Thompson had since changed to “loss of financial support,”
the Court found these terms to be analogous. Id. at 606-07. It reasoned that the
Legislature was presumed to act with knowledge of statutory interpretations of the
appellate courts, and therefore the current wrongful death statute covered those
same damages accepted in Thompson, since there was no limiting language in the
current statute. Id.
The test for these damages is “expectation of support.” Thompson, 357
Mich. at 489 (1959). Defendants contend that there is no evidence that Aaron
provided any services to Plaintiff, and therefore there is no reasonable expectation
that Aaron would have given his adoptive mother any support in the future. This is
a question of fact that is appropriate for the jury to resolve. If the Defendants do
not believe Plaintiff’s statements, or find them lacking in credibility, this issue can
be heard and determined by a jury. As a result, summary judgment on this issue is
denied.

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f. COMPARATIVE NEGLIGENCE AND SUICIDE
Defendants argue that comparative negligence should foreclose Plaintiff’s
state claims, because suicide, by definition, is 100% the fault of the person who
intentionally commits the act in question. As a result, Defendants argue that, under
Michigan comparative negligence rules, Plaintiff’s state negligence claims should
be dismissed because no jury would believe that Aaron was less than 50%
responsible for his death. M.C.L. § 600.2959.
Defendants cite Mission v. Corbett, No. 294905, 2011 Mich. App. LEXIS
359 (Feb. 17, 2011) (unpublished) and Peterson v. Corder, No. 251127, 2005
Mich. App. LEXIS 234, 2005 WL 234391 (Mich. Ct. App. Feb. 1, 2005)
(unpublished) to support their proposition. However, these cases are easily
distinguishable, as they concern instances in which there is no suicide considered.
Peterson considered an act that was negligent and unlawful, while Mission dealt
with a gutter cleaner who had been warned and given safety equipment that he did
not in fact elect to use. These are obviously significantly different circumstances
than those presented in the case at bar.
Further, Hickey v. Zezulka, 439 Mich. 408, 443-44, 487 N.W.2d 106, 121
(1992), as amended on denial of reh’g (July 13, 1992), is instructive. In Hickey, the
Court held that, for a jailhouse suicide, a negligent defendant cannot mitigate
damages by pleading that a Plaintiff, to whom a duty was owed, violated a

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standard of care for their own protection. Id. at 443-44. While Defendants argue
that this holding is only applicable to jailhouse suicides, the reasoning is applicable
to this case because the Court relied on the fact that a jailhouse suicide involved a
Defendant who “has a duty to give aid to and protect another person in the
defendant's custody, even from his own intentional acts.” Id. Defendants cannot
point to a case from Michigan that would preclude application of this reasoning in
this case, where Defendants had a similar and unquestioned duty to provide aid and
protection to Aaron while he was under their custody. Therefore, a comparative
negligence instruction is denied.
g. MEDICAL MALPRACTICE STATUTE
Defendants argue that summary judgment should be granted as to the state
law negligence claims against the two individual Defendants who are licensed
social workers, and to WHS, which is a licensed healthcare facility, because
Plaintiff failed to comply with the substantive requirements for Michigan medical
malpractice claims. Plaintiff replies, first arguing that the Court should find these
requirements to be procedural, and thus inapplicable in the federal court case under
Federal Rule of Civil Procedure 8(a). See Erie R. Co. v. Tompkins, 304 U.S. 64, 78
(1938). The Court has previously considered this precise issue and held that these
requirements are in fact substantive. See Bade v. United States, No. 11-10780,
2012 WL 1555072 (E.D. Mich. May 1, 2012). The Court is not persuaded that

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these requirements are procedural, in the face of Michigan Court holdings and the
previous analysis under Erie, which concluded that the requirements are
substantive, would be outcome determinative, encourage forum shopping, and lead
to inequitable administration of law. Id. at *8-10. Therefore, the Court finds that
the medical malpractice filing requirements are substantive, and Counts VIII and
VI must accordingly be dismissed against all Defendants for the failure to comply
with the medical malpractice filing requirements imposed by M.C.L. §§ 600.2912b
and 600.2912d.
Plaintiff also argues that, if the Court finds these requirements to be
substantive, the expert report provided to Defendants before Plaintiff’s complaint
was filed should be found to satisfy that condition. In support of this proposition,
Plaintiff cites Ericson v. Pollack, 110 F. Supp. 2d 582, 589 (E.D. Mich. 2000);
Broder v. Corr. Med. Servs., Inc., No. 03-75106, 2008 WL 704296, at *21 (E.D.
Mich. March 14, 2008); and Derfiny v. Bouchard, 128 F. Supp. 2d 450 (E.D. Mich.
2001).
However, these cases are not applicable here, as they found that the expert
report satisfied the requirements of an affidavit of merit under M.C.L. § 600.2169.
There is no persuasive argument that the expert report in this case satisfies those
conditions. Under M.C.L. § 600.2169(1)(a), the standard of care expert must
specialize in the same area as the practitioner they are testifying against. Further,

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the expert must practice in the same health profession and/or teach in that same
profession. M.C.L. § 600.2169(1)(b)-(c). A forensic psychologist authored the
expert report in this case. He has no social work degree, and further has no social
work license. Therefore, under M.C.L. § 600.2169, he is not an expert qualified to
produce an affidavit of merit.
Finally, Plaintiff argues that her allegations should not be treated as medical
malpractice claims, because no expert testimony is required to determine whether
Defendants’ employees’ actions were negligent. Plaintiff relies upon Jones v. Corr.
Med. Servs., Inc., 845 F. Supp. 2d 824, 846 (W.D. Mich. 2012) (citing Bryant v.
Oakpointe Villa Nursing Ctr., 471 Mich. 411, 430-31, 684 N.W.2d 864, 871
(2004)), for the proposition that, because the claims relate to an accusation that
Defendant did nothing in response to a known risk, a jury does not require expert
testimony to determine if there was negligence, and can instead resolve the claims
as a matter of common sense.
However, Plaintiff’s accusations cannot be resolved as a matter of common
sense, as the briefs themselves demonstrate. Many of the accusations against these
Defendants surround questions of hiring, training, and adequacy of policies that are
not in fact framed as accusations of mere inaction. The Michigan courts have held
that hiring decisions and patient monitoring “involve questions of professional
medical management and not issues of ordinary negligence that can be judged by

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the common knowledge and experience of a jury.” Dorris v. Detroit Osteopathic
Hosp. Corp., 460 Mich. 26, 46-7, 594 N.W.2d 455, 465-66 (1999).
Finally, Plaintiff argues that the claims at issue are not subject to medical
malpractice standards, because they are gross negligence claims rather than
medical malpractice claims.1 However, Defendant correctly asserts that gross
negligence claims no longer are independent causes of action under Michigan law,
since the Courts have repudiated contributory negligence principles and adopted
comparative negligence. See, e.g., Jennings v. Southwood, 446 Mich. 125, 149, 521
N.W.2d 230, 241 (1994); Cummins v. Robinson Twp., 283 Mich. App. 677, 69091, N.W.2d 421, 433 (2009); Van Vorous v. Burmeister, 262 Mich. App. 467, 687,
N.W.2d 132, 143 (2004). Rather, gross negligence exists as a way to plead around
state imposed qualified immunity, as explained above, and to establish caps on
damages. See M.C.L. § 691.4107; M.C.L. § 600.2946a. Thus, while gross
negligence is an important substantive concept under Michigan law, there is no

1

Plaintiff does not cite any Michigan case law to support this argument. Rather
Plaintiff cites to Stojcevski v. Cty. of Macomb, 143 F. Supp. 3d 675, 692-93
(E.D. Mich. 2015), reconsideration denied, No. CV 15-11019, 2016 WL 2893016
(E.D. Mich. May 18, 2016). However, this case cites approvingly a decision that
the gross negligence claim at issue in the case was a medical malpractice claim. Id
at 693. While that Court did not dismiss the claim, it was on the grounds that it
found the medical malpractice claim statutory requirements to be procedural. As
explained above, the Court does not agree with this analysis, and therefore this
decision is not persuasive.
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independent cause of action for gross negligence. Therefore, Defendants are
correct that there are no viable claims of gross negligence in this case.
Accordingly, summary judgment is granted on the state law claims in Count
VIII against the two licensed social workers, Ms. Einem-Smith and Ms. FischerWollack and WHS.
IT IS ORDERED that Defendants’ Motion [43] is GRANTED in part as
to the dismissal of Count VIII and the dismissal of all claims against Defendant
Judith Fischer-Wollack and DENIED in part as to all other claims.
SO ORDERED.

Dated: September 25, 2017

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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