MIlline v. Macomb, County of et al

Filing 137

OPINION AND ORDER Denying Plaintiff's 131 Motion for Reconsideration. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALVAREZ MILLINE, as Personal
Representative of the ESTATE of
ALVAREZ DEMETRIE MILLINE, Deceased
Plaintiff,

Case No. 17-cv-12723
Hon. Matthew F. Leitman

v.
CORRECTCARE SOLUTIONS, L.L.C. et al.,
Defendants.
__________________________________________________________________/
OPINION AND ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION (ECF No. 131)
On March 7, 2016, Alverez Demetrie Milline (“AD Milline”) tragically died
of a pulmonary embolism while in custody at the Macomb County Jail. In this
action, the personal representative of AD Milline’s estate (“Plaintiff”1), brought a
claim for gross negligence against, among others, Temitope Olagbaiye, a nurse
practitioner for Correct Care Solutions, L.L.C. (“CCS”). The Court previously
issued an Opinion and Order in which it construed that claim against Olagbaiye as
one for medical malpractice (the “Malpractice Claim”). (See Op. and Order, ECF
No. 117, PageID.3698-3702.) The Court then granted Defendants’ motion for

1

The Plaintiff is also named Alverez Milline. For ease of reference, the Court will
refer to him as “Plaintiff.”
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summary judgment on the Malpractice Claim on the ground that Plaintiff failed to
comply with Michigan law by submitting an affidavit of merit with his Complaint.
(See id.)
Plaintiff now moves for reconsideration. (See Mot., ECF No. 131.) He argues
that the Court erred when it concluded that an affidavit of merit is required for
medical malpractice claims brought in federal court. (See id.) The Court agrees that
it so erred. But the Court nonetheless declines to reconsider its grant of summary
judgment against Plaintiff on the Malpractice Claim because the claim fails as a
matter of law for the reasons discussed below. Plaintiff’s motion for reconsideration
is therefore DENIED.
I
The Court set forth the factual background of Plaintiff’s claims at length and
in detail in its two prior Opinions and Orders. (See Op. and Order, ECF No. 117,
PageID.3661-3674; Op. and Order, ECF No. 134, PageID.4429-4433). The Court
incorporates that background into this Opinion and Order and will not repeat it in
depth here.
The essential facts underlying the current motion are as follows. On March
7, 2016, AD Milline was brought to the medical unit at the Macomb County Jail
complaining of trouble breathing. (See Medical Records, ECF No. 83,
PageID.1612.) He stopped responding to commands and lost consciousness. (See

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id.) He was then taken to McLaren Hospital where he was pronounced dead. (See
id., PageID.1611.) The medical examiner who performed the autopsy on AD Milline
determined that he “died of a pulmonary thromboembolism.” (Dep. of Dr. Daniel
Spitz at 11-12, ECF No. 82-6, PageID.1309.)
Plaintiff filed this action on August 18, 2017. (See Compl., ECF No. 1.)
Plaintiff initially asserted claims against Macomb County, certain county officials,2
CCS, and certain health professionals employed by CCS who provided medical care
to AD Milline at Macomb County Jail – including Olagbaiye. (See id.) Plaintiff
claimed that CCS and its professionals were (1) deliberately indifferent to AD
Milline’s serious medical needs in violation of AD Milline’s Eight Amendment
Rights, and (2) grossly negligent under Michigan law. As noted above, the Court
previously construed the gross negligence claim as one for medical malpractice.
On November 30, 2020, the Court issued an Opinion and Order in which, as
relevant here, it granted summary judgment in favor of all Defendants on the
Malpractice Claim. (See Op. and Order., ECF No. 117.) First, the Court determined
that the Malpractice Claim sounded in medical malpractice, and it therefore
construed the claim as one for medical malpractice. (See id., PageID.3698-3702.)
Next, the Court granted summary judgment on the Malpractice Claim because
Plaintiff had not satisfied the prerequisites for a medical malpractice action under

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Plaintiff has since settled with Macomb County and the county’s officials.
3

Michigan law – specifically, the requirement that Plaintiff file an affidavit of merit
with his Complaint under Mich. Comp. Laws § 600.2912d(1) (the “Affidavit of
Merit Statute”). (See id., PageID.3702). Finally, as to Plaintiff’s other claims, the
Court (1) granted summary judgment in favor of all Defendants other than CCS and
Olagbaiye on Plaintiff’s Eighth Amendment deliberate indifference claims, (2)
denied summary judgment without prejudice on Plaintiff’s Eighth Amendment
deliberate indifference claims against CCS and Olagbaiye, and (3) granted CCS and
Olagbaiye leave to file a renewed motion for summary judgment on Plaintiff’s
Eighth Amendment claims. (See id., PageID.3702-3703)
CCS and Olagbaiye subsequently filed a renewed motion for summary
judgment on Plaintiff’s Eighth Amendment claims. (See Ren. Mot., ECF No. 121.)
The Court held a hearing on the motion, and during that hearing, Plaintiff asked the
Court to reconsider its earlier ruling granting summary judgment against Plaintiff on
the Malpractice Claim. Plaintiff argued for the first time that the Affidavit of Merit
Statute did not apply to medical malpractice actions brought in federal court and that
the Court therefore should not have dismissed the Malpractice Claim against
Olagbaiye on the ground that he did not file an affidavit of merit with his Complaint.
(See 6/25/2021 Hr’g Tr., ECF No. 130, PageID.4284.) The Court noted that
Plaintiff’s request for reconsideration was not filed within the fourteen-day time
limit set by the Court’s Local Rules, but the Court nonetheless agreed to permit

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Plaintiff to file and fully brief a motion for reconsideration based upon his argument
that he did not need to file an affidavit of merit. (See id., PageID.4288.) After the
Court granted Plaintiff leave to seek reconsideration, it invited Olagbaiye to respond
to Plaintiff’s motion with “any arguments” he had “with respect to the state law gross
negligence claim.” (Id., PageID.4286.) Stated another way, the Court explained to
Olagbaiye that he need not limit his response to the arguments made in Plaintiff’s
motion and that, instead, he should include in his response every ground on which
he believed that the Malpractice Claim failed as a matter of law. Plaintiff indicated
that he had no objection to proceeding in this manner. (See id.)
After the hearing concluded, the Court gave some additional thought to the
issues to be addressed in connection with Plaintiff’s motion for reconsideration. The
Court then entered the following order directing the parties to present argument on
one additional issue that was not discussed during the hearing:
During a hearing on June 25, 2021, the Court orally
granted Plaintiff leave to file a motion for reconsideration
of the Court’s prior ruling granting summary judgment on
Plaintiff’s gross negligence claim. (See Opinion and Order
Dated November 30, 2020, ECF No. 117, PageID.370102.) When the Court granted leave, it identified a number
of issues for the parties to address in the briefing on the
motion.
Following the hearing, the Court concluded that there is
another issue that should be addressed in the briefing. The
issue is: Assuming arguendo that Plaintiff’s gross
negligence claim is not subject to dismissal on the ground
that Plaintiff failed to file an affidavit of merit pursuant to
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MCL §600.2912d, does the claim nonetheless fail as a
matter of law because it is not supported by competent
expert medical testimony? In answering this question, the
parties should assume that the Court will adhere to its
earlier decision that the gross negligence claim sounds in
medical malpractice. Given that prior ruling by the Court,
the parties should address (1) whether expert testimony is
necessary to support a medical malpractice claim like the
one asserted by Plaintiff, (2) whether Dr. Elder, a board
certified cardiologist, is a competent witness under Mich.
Comp. Laws §600.2169(1)(c) concerning the standard of
care in a medical malpractice claim against Defendant
Olagbaiye, a nurse practitioner, and (3) if Dr. Elder is not
a competent witness in support of the medical malpractice
claim against Defendant Olagbaiye, does the claim
necessarily fail as a matter of law on the record before the
Court? The parties should address these issues in addition
to the other issues identified by the Court on the record
during the hearing. 
(Order, ECF No. 128.)
The Court highlights and summarizes other facts below as appropriate and
necessary to the Court’s analysis.
II
Motions for reconsideration in this Court are governed by Local Rule 7.1(h).
Under that rule, the movant must demonstrate that the Court was misled by a
“palpable defect.” E.D. Mich. L.R. 7.1(h)(3). A “palpable defect” is a defect that is
obvious, clear, unmistakable, manifest, or plain. See Witzke v. Hiller, 972 F.Supp.
426, 427 (E.D. Mich. 1997). The movant must also show that the defect, if corrected,
would result in a different disposition of the case. See E.D. Mich. L.R. 7.1(h)(3). A

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motion for reconsideration is not a vehicle to rehash old arguments, or to proffer new
arguments or evidence that the movant could have presented earlier. See Sault Ste.
Marie v. Engler, 146 F.3d 367, 374 (6th Cir. 1998).
III
In his motion for reconsideration, Plaintiff argues that the Court erred when it
granted summary judgment on the Malpractice Claim on the ground that Plaintiff
failed to include an affidavit of merit with his Complaint. The Court agrees.
However, as explained below, the Malpractice Claim still fails because Plaintiff has
not supported his claim with competent expert testimony on the applicable standard
of care. Plaintiff is therefore not entitled to reconsideration of the Court’s decision
to grant summary judgment in favor of the Defendants on the Malpractice Claim.
A
As noted previously by this Court, the Affidavit of Merit Statute requires a
plaintiff who brings a medical malpractice claim in state court to include with his
complaint an affidavit of merit signed by a health professional that attests to the
defendant’s failure to meet the standard of patient care. (See Op. and Order, ECF No
117, PageID.3702, citing Mich. Comp. Laws § 600.2912d(1)). The Court now
concludes that the Affidavit of Merit Statute does not apply in federal court.

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The Sixth Circuit’s decision in Gallivan v. United States, 943 F.3d 291 (6th
Cir. 2019), guides the Court’s analysis. In Gallivan, the Sixth Circuit considered
whether Ohio’s affidavit of merit statute applies to medical malpractice actions
brought in federal court. The Ohio statute, much like Michigan’s Affidavit of Merit
Statute, requires a plaintiff bringing a medical malpractice claim to include with his
complaint an affidavit from a medical professional attesting that the defendant
breached the applicable standard of care. See Gallivan, 943 F.3d at 293. To
determine whether the Ohio statute applied in federal court, the Sixth Circuit applied
the two-step inquiry laid out by the United States Supreme Court in Shady Grove
Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010). At the first
step, a court asks “whether the Federal Rules of Civil Procedure answer the question
in dispute: does someone need an affidavit of merit to state a claim for medical
negligence?” Gallivan, 943 F.3d at 293. If the answer is yes, a court then asks
“whether the Federal Rules are valid under the Constitution and the Rules Enabling
Act.” Id. “If the answers to both questions are yes, . . . [a court must] apply the
Federal Rules” and not the state statute at issue. Id.
The Sixth Circuit held at the first step that “the Federal Rules provide a clear
answer: no affidavit is required to state a claim for medical negligence.” Id. The
court identified three Federal Rules of Civil Procedure that conflict with an affidavit
of merit requirement. First, the court identified Rule 8(a), which provides only that

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“a complaint must include (1) a short and plain jurisdictional statement, (2) a short
and plain statement of the claim, and (3) an explanation of the relief sought.” Id.
Unlike the Ohio statute, “Rule 8 does not require litigants to file any affidavits.” Id.
Second, the court identified Rule 12, which governs motions to dismiss. Id. Again,
unlike the Ohio statute, Rule 12 “does not demand ‘evidentiary support’—in an
affidavit or any other form.” Id. The Court explained that “[e]ven without an
affidavit, a complaint can move beyond the pleading stage and into discovery” under
the Federal Rules. Id. Finally, the court noted Rule 9, which identifies the limited
cases in which plaintiffs are held to a heightened pleading standard (e.g., when a
plaintiff alleges fraud or mistake). That rule makes no mention of malpractice cases.
The court concluded that enforcing an affidavit requirement in federal court “would
upset the careful balance struct by the Federal Rules” between Rule 8’s default,
liberal pleading standard and Rule 9’s narrow imposition of a more restrictive
standard. Id. at 293-94. In sum, the court held the Federal Rules do not require a
plaintiff “to file an affidavit with his complaint to state a claim.” Id. at 294.
The court then moved on to the second step of the Shady Grove inquiry:
determining “whether the relevant Rules are valid under the Constitution and the
Rules Enabling Act.” Id. The court held they are valid and noted that “the Supreme
Court has rejected every challenge to the Federal Rules that it has considered under
the Rules Enabling Act.” Id. (quoting Abbas v. Foreign Policy Grp., LLC, 783 F.3d

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1328, 1336 (D.C. Cir. 2015)). The court therefore held that Ohio’s affidavit of merit
requirement did not apply in federal court.
Gallivan compels the conclusion that Michigan’s Affidavit of Merit Statute
does not apply to medical malpractice claims brought in federal court. Like the Ohio
affidavit of merit requirement addressed in Gallivan, Michigan’s Affidavit of Merit
Statute imposes a pleading requirement beyond those imposed by the Federal Rules.
It requires a plaintiff alleging medical malpractice to “file with the complaint an
affidavit of merit.” See Mich. Comp. Laws § 600.2912d(1). Rules Rule 8, 12, and
9(a) do not impose any such requirement to file a complaint for malpractice in
federal court. And those rules are valid. See Gallivan, 943 F.3d at 294. Thus, under
Gallivan, Michigan’s Affidavit of Merit Statute does not apply to medical
malpractice actions brought in federal court. See also Albright v. Christensen, 507
F.Supp.3d 851, 861 (E.D. Mich. 2020) (“Michigan Compiled Laws § 600.2912d,
which requires an affidavit of merit to be filed with a medical malpractice complaint,
does not apply in federal court.”); Herriges v. Cty. of Macomb, 2020 WL 3498095,
at *11 (E.D. Mich. June 29, 2020) (“[I]t has been settled for some time that the
[Affidavit of Merit Statute] outlines a pleading requirement that does not apply to
an action in federal court.”).

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B
The Court’s inquiry does not end there. It is not enough to show the Court’s
prior decision erred. To succeed on a motion for reconsideration, Plaintiff must also
“show that correcting the defect will result in a different disposition of the case.”
E.D. Mich. L.R. 7.1(h)(3). Defendants argue that he has not made that showing here.
The Court agrees. Thus, the Court will not reconsider its grant of summary judgment
against Plaintiff on the Malpractice Claim.
In a medical malpractice action under Michigan law, “[e]xpert testimony is
required to establish the applicable standard of care and to demonstrate that the
defendant breached that standard.” Gonzalez v. St. John Hosp. & Med. Ctr., 739
N.W.2d 392, 395 (Mich. App. 2007). “[T]he party proposing to call an expert bears
the burden to show that his or her expert meets [the requisite statutory]
qualifications.” Cox v. Hartman, 911 N.W.2d 219, 224 (Mich. App. 2017) (quoting
Gay v. Select Specialty Hosp., 813 N.W.2d 354, 358 (Mich. App. 2012)).
Defendants contend that Plaintiff lacks the expert testimony needed to
establish that Olagbaiye committed medical malpractice.

In support of this

argument, Defendants rely upon a Michigan statute, Mich. Comp. Laws §
600.2169(1) (the “Malpractice Expert Statute”), that governs who may offer expert
testimony regarding the applicable standard of care in a medical malpractice case.
In relevant part, the Malpractice Expert Statute provides:

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(1) In an action alleging medical malpractice, a person
shall not give expert testimony on the appropriate standard
of practice or care unless the person is licensed as a health
professional in this state or another state and meets the
following criteria:
(b) Subject to subdivision (c) [which is not relevant here],
during the year immediately preceding the date of the
occurrence that is the basis for the claim or action,
devoted a majority of his or her professional time to either
or both of the following:
(i)

The active clinical practice of the same health
profession in which the party against whom or on
whose behalf the testimony is offered is licensed
and, if that party is a specialist, the active clinical
practice of that specialty.

(ii)

The instruction of students in an accredited health
professional school or accredited residency or
clinical research program in the same health
profession in which the party against whom or on
whose behalf the testimony is offered is licensed
and, if that party is a specialist, an accredited health
professional school or accredited residency or
clinical research program in the same specialty.

Mich. Comp. Laws § 600.2169(1)(b) (emphasis added).
Defendants argue that the Malpractice Expert Statute precludes Plaintiff’s
expert witness, Dr. Mahir Elder, from opining on the standard of care applicable to
Olagbaiye because during the year preceding Olagbiaye’s alleged malpractice, Dr.
Elder did not instruct or practice in “the same health profession” as Olagbaiye. In
response, Plaintiff does not dispute that the Malpractice Expert Statute applies in

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federal court.3 Instead, Plaintiff asserts that Dr. Elder may testify about the standard
of care applicable to Olagbaiye because Dr. Elder and Olagbaiye share “similar
duties . . . including but not limited to prescribing medications, ordering diagnostic
tests, managing a patient’s overall care, and being board certified in special areas of
practice.” (Pl. Reply Brief, ECF No. 136, PageID.4473.) The Court agrees with
Defendants.
The Malpractice Expert Statute focuses on whether the proposed expert and
the defendant medical professional share the “same health profession.” Michigan
law defines “health profession” as “a vocation, calling, occupation, or employment
performed by an individual acting pursuant to a license or registration issued under
[Article 15 of the Public Health Code].” Mich. Comp. Laws § 333.16105(2).
“Registration” includes a “specialty certification of a licensee and a health
profession specialty field license.” Mich. Comp. Laws § 333.16108(2). Taking these

in several cases have held that Federal Rule of Evidence 601 – which
provides in relevant part that “in a civil case, state law governs the witness’s
competency regarding a claim or defense for which state law supplies the rule of
decision” – requires the application of the Malpractice Expert Statute to claims in
federal court that are governed by Michigan substantive law. See Campbell v. United
States, 2020 WL 9349618, at *5 (E.D. Mich. Nov. 23, 2020); Words v. United States,
2015 WL 7770863, at *2 (E.D. Mich. Dec. 3, 2015); Benedict v. United States, 2015
WL 8538026, at ** 1-2 (E.D. Mich. 2015); McCaffrey v. St. Joseph Mercy Hospital,
2000 WL 1279159, at *6, n.7 (E.D. Mich. 2000). The Sixth Circuit has further
concluded that Rule 601 requires the application of a Tennessee statute, similar to
the Malpractice Expert Statute here, to claims pending in federal court that are
governed by Tennessee substantive law. See Legg v. Chopra, 286 F.3d 286, 289-90
(6th Cir. 2002).
3

  Courts

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provisions together, “the statutory definition of ‘health profession’ indicates that a
health profession may be determined by reference to a license or a registration, and
a registration includes a specialty certification.” Hartman, 911 N.W.2d at 226.
This Court must therefore compare the licenses and specialty certifications of
Olagbaiye and Dr. Elder to determine whether they fall under “the same health
profession.” Here, Olagbaiye is, and was at all times relevant to this action, a nurse
practitioner. Under Michigan law, the term “nurse practitioner” is “a specialized
term used in nursing that refers to a registered nurse who receives advanced training
and is qualified to undertake some of the duties and responsibilities formerly
assumed only by a physician.” Cox ex rel. Cox v. Bd. of Hosp. Mgrs. for City of Flint,
651 N.W.2d 356, 360, n.10 (Mich. 2002) (emphasis added). More specifically, nurse
practitioners are licensed nurses who obtain specialty certification from the
Michigan Board of Nursing under Mich. Comp. Laws § 333.17210(1). Nurse
practitioners are therefore a distinct “health profession” under Michigan’s
competency statute. See Hartman, 911 N.W.2d at 227 (holding defendant’s expert,
a nurse practitioner, was not competent to testify to the standard of care for a
registered nurse because nurse practitioners are a distinct “health profession” under
§ 600.6129(1)(b)).

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On the other hand, Dr. Elder is a licensed physician – a cardiologist with seven
board certifications. (See Dep. of Dr. Mahir Elder, at 8-9, ECF No. 82-4,
PageID.1257-1258.) Under Michigan law, a physician is “an individual who is
licensed or authorized under [the Public Health Code] to engage in the practice of
medicine.” Mich. Comp. Laws § 333.17001(f).
The critical distinction between the licensure and practice of physicians like
Dr. Elder, on one hand, and nurse practitioners like Olagbaiye, on the other hand, is
fatal to Olagbaiye’s claim that Dr. Elder is competent under the Malpractice Expert
Statute to testify about the standard of care for nurse practitioners. Nurses and nurse
practitioners, unlike physicians, “do not engage in the practice of medicine.” Cox,
911 N.W.2d at 224. They are licensed separately to practice a distinct profession.
As such, Olagbaiye and Dr. Elder do not practice “the same health profession” under
Michigan law. Dr. Elder is therefore not competent under the Malpractice Expert
Statute to testify regarding the applicable standard of care for Olagbaiye.
The Michigan Court of Appeals’ decision in McElhaney v. Harper-Hutzel
Hosp., 711 N.W.2d 795 (Mich. App. 2006), is instructive. In McElhaney, a plaintiff
brought a malpractice claim against a nurse midwife. See id. at 799. Nurse midwifes,
like nurse practitioners, are registered nurses who obtain additional certification
under Mich. Comp. Laws § 333.17210(1). Plaintiff’s proposed experts on the
applicable standard of care were obstetricians/gynecologists (i.e., physicians). Id. at

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799-800. The court held that “because nurse midwives are separately licensed
professionals who practice nursing with specialty certification in the practice of
nurse midwifery, obstetricians/gynecologists may not testify about their standard of
practice or care.” Id. at 800. Here, as in McElhaney, Dr. Elder, a physician, is not
competent under Michigan law to testify as to the standard of care for Olagbaiye, a
separately licensed professional practicing nursing with a specialty certification as a
nurse practitioner.
Plaintiff’s arguments to the contrary are unavailing. First, Plaintiff asserts that
Dr. Elder, a professor at Wayne State University for over three years preceding AD
Milline’s death, instructed “a number of nurse practitioners.” (Mot., ECF No. 131,
PageID.4311.) However, Plaintiff has not shown that Dr. Elder devoted “a majority
of his professional time” in the year preceding Olagbaiye’s alleged malpractice to
the instruction of nurse practitioners, as the Malpractice Expert Statute requires.
Second, Plaintiff contends that Dr. Elder is competent because he testified to
what “any medical professional” would have done.” (Reply Br., ECF No. 136,
PageID.4473-4474.) But the fact that Dr. Elder felt comfortable opining as to what
“any medical professional” would have done does not mean that he was competent
under Michigan law to offer that opinion against a nurse practitioner in a medical
malpractice case. Indeed, deeming Dr. Elder competent to testify against Olagbaiye
on the ground that Dr. Elder broadly opined about the standard of care applicable to

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“any medical professional” would effectively negate the Malpractice Expert
Statute’s clear requirement that an expert practice or teach in the same “health care
profession” as the party whose conduct he addresses.
Finally, Plaintiff suggests Dr. Elder is competent to opine as to Olagbaiye’s
standard of care because “Olagbaiye is only permitted to treat Plaintiff in
collaboration with a licensed physician.” (Id., PageID.4474-4475.)

But the

Malpractice Expert Statute does not recognize this theory of competence. As the
court in McElhaney noted, “[t]hough it may appear reasonable that a physician with
substantial educational and professional credentials should be able to testify about
the standard of care of a nurse who works in a closely related field, we are
constrained by the plain words of the statute that the expert witness must practice in
the ‘same health profession.’” McElhaney, 711 N.W.2d at 800.
Because Plaintiff’s sole expert witness on the applicable standard of care is
not competent to testify to the applicable standard of care under the Malpractice
Expert Statute, Plaintiff’s medical malpractice claim against Olagbaiye cannot
proceed.4

a previous Opinion and Order, the Court concluded that Plaintiff may support
his deliberate indifference claim against Olagbaiye with expert medical testimony
from Dr. Elder. (See Op. and Order, ECF No. 134, PageID.4448-4449.) That ruling
is not inconsistent with the Court’s ruling above that Plaintiff may not support his
medical malpractice claim against Olagbiaye with testimony from Dr. Elder. The
Malpractice Expert Statute, which bars Plaintiff from offering Dr. Elder’s testimony
in support of his medical malpractice claim, does not apply to Plaintiff’s deliberate

4

  In

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C
Plaintiff counters that even if his own expert, Dr. Elder, is not competent to
testify about the applicable standard of care, he may nonetheless proceed with the
Malpractice Claim because testimony from Olagbaiye’s own expert witnesses
establishes both the applicable standard of care and a breach of that standard. (Mot.,
ECF No. 131, PageID.4311-4315.). The Court disagrees.
Olagbaiye has offered only a single expert witness who may be competent to
testify on the applicable standard of care: Michael McMunn, a nurse practitioner.5
But McMunn stated in his deposition that Olagbaiye did not “violate[] the standard
of care with respect to his care and treatment of [AD] Milline.” (Dep. of Michael
McMunn, at 121, ECF No. 100-1, PageID.3498). Accordingly, Plaintiff cannot meet
his burden to establish a breach of the standard of care by relying on Olagbaiye’s
own expert witnesses.

indifference claim. The admissibility of Dr. Elder’s testimony on that claim is
governed by the Federal Rules of Evidence, and, as the Court previously explained,
Defendants have failed to show that those rules prohibit Plaintiff from offering Dr.
Elder’s testimony in support of the deliberate indifference claim. (See id.) 
5
Olagbaiye’s other proposed expert witnesses do not practice in the “same health
profession” as Olagbaiye.
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IV
For the reasons explained above, even after correcting the Court’s error in
applying Michigan’s Affidavit of Merit Statute, the Malpractice Claim against
Olagbaiye still fails as a matter of law because Plaintiff has not produced expert
testimony to support the claim as required under Michigan law. Accordingly,
Plaintiff is not entitled to reconsideration of this Court’s order granting summary
judgment against him on the Malpractice Claim.

Plaintiff’s motion for

reconsideration (ECF No. 131) is therefore DENIED.
IT IS SO ORDERED.
/s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: October 6, 2021
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on October 6, 2021, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

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