Doe et al v. Jayark Corp et al

Filing 28

OPINION and ORDER Denying Defendants' 16 Motion to Dismiss and/or for Summary Judgment Without Prejudice - and - Order to Show Cause Why this Court Should Not Appoint a Neuropsychologist Pursuant to Federal rule of Evidence 706 - ( TELEPHONIC Status Conference set for 1/20/2015 at 10:00 AM before District Judge Judith E. Levy) - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Sally Doe and Robert Doe, as
guardians of Jane Doe, their
daughter,
Plaintiffs,

Case No. 14-cv-11392
Hon. Judith E. Levy
Mag. Judge Michael Hluchaniuk

v.
Jayark Corp., a foreign
corporation, and Rosalco, Inc., a
foreign corporation,
Defendants.
________________________________/
OPINION AND ORDER DENYING DEFENDANTS’ MOTION
TO DISMISS AND/OR FOR SUMMARY JUDGMENT
WITHOUT PREJUDICE [16]
AND
ORDER TO SHOW CAUSE WHY THE COURT SHOULD
NOT APPOINT A NEUROPSYCHOLOGIST PURSUANT TO
FEDERAL RULE OF EVIDENCE 706
This case arises out of a product liability action stemming from
Jane Doe’s (“Jane”) fall from a bunk bed manufactured by defendant
Jayark Corp. (“Jayark”), and imported and distributed by defendant

Rosalco, Inc. (“Rosalco”).

Plaintiffs Robert and Sally Doe are Jane’s

parents and legal guardians. The fall occurred on March 11, 1995, at
an Art Van Furniture Store (“Art Van”) when Jane was three years old.
This suit was filed nineteen years later on April 4, 2014, when Jane was
twenty-two years old.

Before the Court is defendants’ Motion to

Dismiss and/or Motion for Summary Judgment, arguing that plaintiffs
are barred from bringing this suit by the statute of limitations. Given
defendants’ reliance on evidence outside of the pleadings, the Court will
construe this motion as a motion for summary judgment. See Fed. R.
Civ. P. 12(c); Dowd v. Smoot, 2010 WL 3269898 at *1 (S.D. Ohio 2010).
A hearing was held on October 9, 2014, and oral argument was
heard.

At the conclusion of the hearing, the Court ordered

supplemental briefing on the limited question of the impact of the
prosecution of a prior lawsuit where Jane Doe served as the plaintiff on
whether she was able to comprehend her legal rights at the time the
suit was pending and was therefore not continuously “insane”1 from the
time of her fall until this suit was filed.

The Court will use the term “insanity” throughout the opinion with the
understanding that this term is in the applicable statute and is a term
of art, not because it is a useful descriptor in this or any other case.
1

2

For the reasons set forth below, the Court denies defendants’
motion for summary judgment without prejudice. The Court further
orders the parties to show cause why it should not appoint a
neuropsychologist pursuant to Fed. R. Evid. 706. Such appointment
would be to conduct an evaluation of Jane and a review of her medical
records to assist the Court in determining whether she has been
continuously unable to comprehend her legal rights due to insanity
from the date of the fall until one year prior to the date this case was
filed.
I.

BACKGROUND
Plaintiff Jane Doe was born on October 1, 1991.
On March 11, 1995, when Jane was three years old, she fell off a

bunk bed at an Art Van Furniture store. Immediately following the
fall, plaintiff was taken to the emergency room where a doctor
diagnosed Jane with a “torus fracture of the left wrist [and] cervical
strain.” The doctor noted that, while Jane complained of neck pain, she
did not appear to show any symptoms related to head trauma. (Dkt. 164).

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Plaintiffs claim that Jane suffered a traumatic brain injury from
the fall, which led to subsequent diagnoses of attention deficit disorder
and/or attention deficit hyperactivity disorder, oppositional defiant
disorder, bipolar disorder, anxiety and depression, learning disabilities,
and Asperger’s Syndrome.

(Dkt. 16-7).

Records indicate that Jane

began to suffer from a number of behavioral problems as early as
September 1997, at which point doctors’ notes indicate she began to
have temper tantrums and discipline problems. (Dkt. 22-3). In one
visit with a doctor, Jane’s family indicated that these behavioral
problems began in 1996 (about one year after the fall), and had
escalated over time. (Dkt. 22-4).
In May 2002, Jane had a neuropsychological assessment
conducted by a clinical psychologist, Dr. Joshua Kay. Dr. Kay found
that Jane had problems with verbal and social skills, visual memory,
behavior, and ability to focus. (Dkt. 23-4). Dr. Kay also noted that
Jane’s memory fell within normal limits and that there “were no
indications of depression or any pervasive developmental problem.”
(Id.)

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In November 2003, a second neurological consultation was
conducted, during which it was noted that Jane suffered from learning
disabilities that might have been caused by unnoticed seizures. (Dkt.
23-5). The osteopathic doctor conducting this exam found, furthermore,
that Jane showed signs of “extremity weakness… visual-spatial
immaturity, and dyspraxia,” however, she also reviewed an MRI
conducted in October 2003, and found that it “did not show any
intracranial abnormalities.” (Id.)
On January 25, 2006, Dr. Susan Anderson conducted a “Cognitive
Analysis, Academic & Language Assessment.”

As part of this

assessment, Dr. Anderson evaluated a quantitative EEG which showed
“significant abnormalities” consistent with “cortical damage, likely the
result of a head injury.”

(Dkt. 23-6).

The most significant alleged

abnormalities were found in the frontal lobe of the brain, which one
depends on for reasoning, planning, control of emotion, problem-solving,
and language. Dr. Anderson predicted that Jane would need ongoing
assistance to live outside of home as she got older. (Dkt. 23-6). In 2007,
a psychological evaluation indicated that Jane had low to below average

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cognitive functioning and required special education support “under the
educational diagnosis of Traumatic Brain Injury (TBI)”. (Dkt 23-7).
Defendants paint a very different picture of Jane.

They point to

evidence showing that Jane performed well in school in the years
following the incident, and that she graduated from Brighton High
School without having to repeat a class.

She received her driver’s

license at the age of seventeen on her first attempt. (Dkts. 16 at 15; 169 at 8, 14). Jane also participated in a variety of activities throughout
high school, including sports, babysitting, driving unsupervised, and
working as a cashier at a McDonald’s restaurant. (Dkt. 16-9 at 5-6, 17,
30). In fact, plaintiff was met with significant success as a track runner
in high school. Defendants characterize her as a “typical” person of her
age, who attended community college and has an active social life.
(Dkt. 16 at 16-17).
Defendants submitted surveillance footage of Jane driving on a
multi-lane highway to the mall with her then fiancé and her five or six
year-old sister.

Despite claims of memory loss, deposition testimony

from an earlier lawsuit against Art Van revealed that plaintiff was able
to remember important events in both the short and long-term. (Dkt.

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16-9 at 20). For example, she was able to remember specific facts like
how long her parents were married and her best times in track races
she ran in high school. (Id. at 30, 56).
Plaintiff turned eighteen on October 1, 2009.
On October 11, 2009, Jane’s mother signed a retainer agreement
with a law firm to represent Jane in a negligence action against Art
Van. (Dkt. 21-3). On May, 25 2010, Jane filed a lawsuit against Art
Van in her personal capacity. At no point in that suit did her lawyer,
opposing counsel, or the court question whether Jane was competent to
serve as the plaintiff in the case. In that lawsuit, Jane sought damages
from Art Van for its alleged negligence with respect to the March 1995
fall.

She also filed a legal malpractice claim against her former

attorney, Michael Hatty (“Hatty”), for failing to bring a case against any
defendant in his fourteen years of representation of Jane and her
family. (Dkt. 16-13).
The claims against Hatty were dismissed; however, the claims
against Art Van proceeded with extensive discovery. In a deposition
held on June 14, 2011, Jane testified that she understood she was suing
Art Van because she fell off a bunk bed in its store when she was

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younger. (Dkt. 16-9 at 52). At the time of this deposition, she did not
know she had brought a suit against her former attorney, whether she
signed a document to retain her current attorney (she did not), or what
the nature of her fee arrangement with him was (her mother handled
this). (Id. at 177).
On August 16, 2011, about two months before Jane Doe’s
nineteenth birthday, Sally and Robert Doe sought and received
conservatorship for their daughter from the Probate Court of Livingston
County. (Dkt. 21-4). This was shortly before a settlement in Jane’s
case against Art Van was to be disbursed. The probate court found
that:
[u]pon presentation of clear and convincing evidence, [Jane
Doe] is in need of a conservator because she is unable to
manage her property and business affairs effectively because
of mental deficiency and the individual has property that
will be wasted or dissipated unless proper management is
provided.
(Id.)
On May 22, 2012, Sally and Robert Doe sought and obtained
appointment as their daughter’s full legal guardians following a
determination by the Probate Court of Livingston County that Jane Doe

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was unable to comprehend her legal rights. (Dkt. 21-1 & 21-2). The
court found that based on Jane Doe’s “traumatic brain injury… [she]
lack[ed] sufficient understanding or capacity to make or communicate
informed decisions, and is an incapacitated individual.”

(Dkt. 21-2).

The judge found, furthermore, that the appointment of a guardian was
necessary because Jane was “totally without the capacity to care for
herself.” (Id.) In reaching this decision, the probate court relied on
testimony from Sally Doe as well as Jane’s guardian ad litem, James
Shay (“Shay”). (Dkt. 21-1). Shay testified that Jane was not capable of
making financial, legal, or general life decisions on her own. (Id. at 78). His testimony was based on his personal conversations with Jane
and her parents, along with his review of a six-year old evaluation
conducted when Jane was fourteen years old. (Id. at 9).
The law suit against Art Van settled in or around November 2012.
(Dkt. 16-14). On April 4, 2014, when Jane was twenty-two years old,
plaintiffs filed this lawsuit against Jayark and Rosalco.

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II.

STANDARD OF REVIEW
Summary judgment is proper where “the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may
not grant summary judgment if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court “views the
evidence, all facts, and any inferences that may be drawn from the facts
in the light most favorable to the nonmoving party.” Pure Tech Sys.,
Inc. v. Mt. Hawley Ins. Co., 95 F. App'x 132, 135 (6th Cir. 2004) (citing
Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)).
III. ANALYSIS
A. Whether the Disability of Infancy Applies
The statute of limitations for product liability actions in Michigan
is three years from the date the cause of action accrued.

M.C.L. §

600.5805(13). In this case, because Jane Doe was a minor at the time of
the alleged injury, she was entitled to take advantage of the one year
grace period provided for in M.C.L. 600.5851(1). Section 5851 modifies
the statute of limitation where the cause of action accrued when the

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party entitled to bring suit is a minor, permitting the individual to file
suit within one year after the disability of infancy is removed.
Accordingly, in this case, the one year grace period expired when Jane
Doe turned nineteen on October 1, 2010.
B. Whether the Disability of Insanity Applies and Tolls
the One Year Grace Period
Where two disabilities are alleged (in this case infancy and
“insanity”), the Court begins the grace period when the second disability
is terminated. M.C.L. § 600.5852(5).
Section 5851 defines insanity as “a condition of mental
derangement such as to prevent the sufferer from comprehending rights
he or she is otherwise bound to know and is not dependent on whether
or not the person has been judicially declared to be insane.” M.C.L. §
600.5851(2).2 Section 5851 provides that, in order for the statute of
limitations to toll, the person must have been considered to be insane
“at the time the claim accrues.” Id. at § 5851(3). Successive disabilities
Arguably, because Jane Doe was a minor until October 1, 2009, she
was not “otherwise bound to know” and comprehend her legal rights
until that date. If this is correct, then the Court’s analysis of Jane Doe’s
insanity would be limited to the time period from her eighteenth
birthday to one year prior to filing this suit. Interestingly, the record is
devoid of any medical or psychiatric records during this time period.
2

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may not be tacked onto one another, and the Court may only recognize
disabilities that existed at the time the claim first accrued.

Id. at

§5851(4).
“Plaintiffs bear the burden of demonstrating that they are
entitled to the benefit of [section 5581].”

English v. Bousamra, 9

F.Supp.2d 803, 808 (W.D. Mich. 1998) (citing Warren Consolidated
Schools v. W.R. Grace & Co., 205 Mich.App. 580, 583 (1994)).
Plaintiffs allege that Jane Doe is insane under Michigan law and
has continuously suffered from that disability since the time of her fall
in 1995. They need not show that Jane’s insanity resulted from the fall
in order to prevail on this theory – merely that she has been unable to
comprehend her legal rights as a result of a mental condition that has
been in existence since her alleged claim accrued.
Defendants rely on two arguments to show that there is no issue
of material fact as to whether Jane Doe has continuously suffered from
the disability of insanity since the injury occurred.

First, that the

disability of insanity did not exist at the time the claim accrued.
Second, that the available medical evidence and Jane Doe’s lawsuit
against Art Van show a definitive break in the continuity of any alleged

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insanity. Plaintiffs respond, primarily, by directing the Court to the
probate court’s determination that Jane was found to be legally insane
in 2012, and required a legal guardian to protect her interests.
1. Whether the Disability of Insanity Existed at the
Time the Claim Accrued
The Michigan statute that governs the modification of a statute of
limitations provides:
To be considered a disability, the infancy or insanity must
exist at the time the claim accrues. If the disability comes
into existence after the claim has accrued, a court shall not
recognize the disability under this section for purposes of
modifying the period of limitations.
M.C.L. § 600.5581(3).
Defendants note that the emergency room record shows no
evidence of a concussion or traumatic brain injury immediately
following the fall. Medical records, however, indicate that shortly after
the incident, Jane began experiencing behavioral issues that doctors
attributed to the fall. (Dkts. 22-3 & 22-4). Subsequent medical and
psychological examinations related to Jane’s behavioral, psychological,
and developmental problems also relate their origin to the fall at Art
Van.

Jane’s parents, for example, sought treatment for Jane’s

behavioral problems as early as September 1997.
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(Dkt. 22-3)

Treatment records indicate that Jane’s parents explained that they
began to notice a shift in her behavior in 1996 (about a year after the
initial fall) and that her tantrums worsened over the course of the
subsequent year. (Dkt. 22-4).
In

2003,

furthermore,

a

second

neurological

consultation

concluded that Jane’s behavioral problems might have been caused by
unnoticed seizures and that “her history [was] significant for head
trauma sustained at 3 years of age.” (Dkt. 23-5).
While earlier exams in the record do not note any physical signs of
head trauma, Dr. Anderson evaluated a quantitative EEG in January
2006, and concluded that it showed “significant abnormalities” in the
frontal lobe consistent with “cortical damage, likely the result of a head
injury.”

(Dkt. 23-6). Dr. Anderson predicted that this injury would

influence Jane’s ability to live on her own and she would likely require
regular assistance as she got older. (Id.)
Finally, in 2007, a psychological evaluation indicated a diagnosis
consistent with traumatic brain injury that had resulted in low levels of
cognitive functioning. (Dkt 23-7).

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No record traces the onset of Jane’s problems directly to the date
of the fall, yet there are findings that connect the symptoms to a period
of one to two years after the fall. Additional medical records discussed
above relate Jane’s behavioral and cognitive problems generally back to
the fall. In any event, Jane’s age at the time of the fall would have
precluded her from comprehending her legal rights at that particular
time in her life. Accordingly, the Court finds that there is arguably a
factual question as to whether Jane’s alleged insanity existed at the
time the claim against defendants accrued.
2. Whether Jane Doe Was Continuously Insane
from March 11, 1995 Until At Least One Year
Before Filing This Lawsuit
In order to prevent the one-year grace period from running after
Jane turned eighteen, the condition of insanity must be continuous. See
English, 9 F. Supp at 808 (citing M.C.L. § 600.5851(4)). Defendants, in
part, rely on evidence that allegedly shows Jane Doe living a “normal”
life – working as a cashier, graduating from high school, dating, and the
like.

With respect to the medical evidence provided by plaintiffs to

show that Jane Doe’s insanity has been continuous, the Court is
concerned by the fact that there is approximately a ten year gap after
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the initial injury before any objective medical examination finds an
injury consistent with this proposition. (Dkt. 23-6). Nonetheless, the
Court is not convinced that, in viewing the medical evidence in the light
most favorable to the plaintiff, there is no issue of material fact as to
whether Jane Doe was continuously insane.

Indeed, plaintiffs have

provided some evidence to show that Jane’s cognitive and behavioral
problems may have emerged soon after the fall and extended through
her high school years.
Defendants also point to the fact that after plaintiff turned
eighteen she was represented by counsel and, in her personal capacity,
sued Art Van over the same incident at issue in this case. While the
ability to retain a lawyer is not “conclusive evidence of mental
competence for the purposes of [a] tolling provision,” the fact that
counsel was previously retained by a plaintiff is evidence that weighs in
favor of finding that the individual was not mentally deranged.
Davidson v. Baker-Vander Veen Construction Co., 35 Mich.App. 293,
301 (1971); Calladine v. Dana Corp., 679 F.Supp. 700, 702 n. 1
(E.D.Mich. 1988) (“the fact that an individual has retained an attorney
offers some evidence that the individual is mentally competent.”); but

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see Makarow v. Volkswagon of Am., Inc., 157 Mich.App. 401, 409 (1987)
(“the kind of derangement contemplated by the statute might include a
condition such that, while somewhat aware, the person is only partially
aware of the circumstances entitling him to maintain an action.”)
Defendants argue that Jane Doe not only has been able to
comprehend her legal rights generally, but also has understood her
legal rights with respect to the facts at issue in this particular case. In
Bradley v. Macomb Cnty., 370 F.Supp.2d 607 (E.D. Mich. 2005), for
example, the court granted defendant’s motion for summary judgment
finding that plaintiff was not insane and the statute of limitations had
run.

In Bradley, plaintiff provided evidence of mild cognitive

impairment and a history of aneurism, seizure, and other brain
maladies to support a showing of insanity. Id. at 611. The court found,
however, that it was unclear from the evidence that the plaintiff’s
condition endured consistently during the period of time the statute of
limitations was running. Id. The court also held that the plaintiff’s
disabilities did not rise to the level of mental derangement because he
could take care of his daily needs and could understand that he had
rights he could pursue against those who had harmed him. Id. The

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plaintiff in that case brought suit against defendant without the
assistance of a guardian, so the court found that, by definition, he knew
his legal rights. Id.
Similarly, Jane, in her individual capacity, brought a prior suit
against Art Van stemming from the same facts alleged in the matter
currently before the Court. In her deposition testimony taken in that
case, Jane acknowledged that she understood she was suing Art Van
because she fell off a bed in one of its stores. (Dkt. 16-9 at 52). At the
time of that deposition, she did not know she had brought a suit against
her former attorney, whether she signed a document to retain her
current attorney, or what the nature of her fee arrangement with her
attorney was. (Id. at 177). However, it was Jane’s mother who sought
and retained an attorney to represent Jane’s interest in the suit against
Art Van and her former attorney, so it is not surprising that Jane
lacked this information. (Dkt. 20-3). Viewing the evidence in the light
most favorable to plaintiff, the record shows that Jane arguably may
have “only partially or imperfectly be[en] able to assist [her] lawyer in
prosecuting a claim.” Makarow, 157 Mich.App. at 409.

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The facts before the Court diverge from Bradley in another key
respect – here, a state court made a determination that Jane Doe
requires legal guardianship due to her mental deficiencies. First, in
August 2011, a probate court granted a conservatorship over Jane,
finding that “she is unable to manage her property and business affairs
effectively because of mental deficiency.” (Dkt. 21-4).

Then, in May

2012, a second probate court made a determination that Jane Doe was
legally “insane” and appointed a guardian to represent her legal
interests. (Dkt 21-1).
Rulings from state probate courts are entitled to the same
deference in federal court that they would receive under the law of the
state. See Warda v. C.I.R., 15 F.3d 533, 537 (6th Cir. 1994) (internal
citations omitted). Michigan courts “give broad deference to findings of
fact made by the probate court because of the probate court’s unique
vantage point regarding witnesses, their testimony, and other
influencing factors not readily available to the reviewing court.” In re
Estate of Windham, 2010 WL 293064 at *1 (2010).3

Defendants argue that the probate court’s appointment of a legal
guardian is of “no moment” as it is irrelevant to the question of insanity
under the statute. Defendants, however, misinterpret Professional

3

19

The Court has several concerns with relying on the probate court’s
decision to appoint a legal guardian for Jane Doe.

Even granting

significant deference, the Court does not find the probate court’s
decision particularly persuasive as to whether Jane Doe has been
continuously insane since the fall, and particularly whether she has
been insane since she turned eighteen. First, the probate court ruling
was issued in May 2012, more than six months after Jane Doe turned
nineteen. As a result, that court’s is not dispositive as to whether Jane
was insane from age eighteen (when she served as a plaintiff in her first
lawsuit) until the time of the probate court’s decision.

Second, the

probate court primarily relied on (1) subjective testimony from Jane’s
mother; and (2) testimony from a guardian ad litem who spoke with the
plaintiffs and reviewed a psychiatric evaluation that was conducted six
years earlier when Jane was fourteen. Neither the probate court nor
the guardian ad litem had access to more recent medical evidence.
Rehab. Assocs. v. State Farm Mut. Auto. Ins. Co., 228 Mich.App 167
(1998). That case stands for the proposition that an appointment of a
legal guardian for a mentally incompetent person does not
automatically remove the person’s disability under section 5851. Rehab
Assocs., 228 Mich.App at 176. Defendants argue both sides on this
issue – that the Court should find Jane’s role in the Art Van case to be
dispositive on the issue and find the appointment of a legal guardian to
be of no significance with respect to her legal capacity.
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Despite these concerns, other facts in the record set forth above could
lead a reasonable juror to conclude that Jane Doe has been continuously
insane since the time of her fall at Art Van.
Accordingly, the Court finds that, viewing the evidence in the light
most favorable to plaintiff, the probate court’s decision paired with the
medical evidence may create a material issue of fact as to whether Jane
Doe was continuously insane until at least until a year before filing this
lawsuit.

See Davidson, 42 Mich.App. 305-07 (whether a person is

insane under Michigan law is typically a question to be determined by a
trier of fact); Hill, 42 Mich.App. at 412-13; Lemmerman v. Fealk, 449
Mich. 56 (1995) (“courts… have generally treated claims of insanity in
order to avoid limitations periods as questions of fact unless it is
incontrovertibly established either that the plaintiff did not suffer from
insanity at the time the claim accrued or that he had recovered from
any such disability more than one year before he commenced his
action.”)
C. Appointment of an Independent Medical Examiner
While the Court finds that there may remain an issue of material
fact, it has several concerns with denying this motion based upon the

21

current medical evidence provided by plaintiffs. The evidence is thin
with respect to (1) the continuity of Jane’s insanity, (2) the period of
time Jane was represented by counsel after she turned eighteen, and (3)
impact of Jane’s current ability to live what appears to be a typical life,
including taking on legal responsibilities attendant to driving and
working as a cashier where she is responsible for customer service and
interacting with money.
More than anything else, this Court is charged with deciding this
motion based upon the truth regarding Jane Doe’s legal capacity. For
this reason, the Court is entering a show cause with respect to the
appointment of a neuropsychologist. “[I]nvocation of Rule 706 powers is
especially appropriate to protect the rights of an accused, a child, or the
public interest. This is because, when such interests are at stake, there
is a heightened judicial duty to see that the abuses and inadequacies of
the adversaries should not be permitted to obscure the truth.”

29

Wright & Gold, Federal Practice and Procedure: Evidence § 6304. The
Court does not believe there have been “abuses” in this case, but there
is a dearth of medical or psychiatric evidence covering the relevant time

22

period for this motion.

For this reason, a Rule 706 show cause is

appropriate.
Accordingly, the Court orders the parties to show cause why it
should not appoint a neuropsychologist, pursuant to Fed. R. Evid. 706,
to conduct a full review of Jane Doe’s medical records related to
whether she has been continuously unable to comprehend her legal
rights due to “insanity” from the date of the fall until this case was filed
and to conduct a complete evaluation of Jane’s mental status to assist
the Court in deciding the issue raised in this motion. See Fed. R. Evid.
706(a) (a court may “order the parties to show cause why expert
witnesses should not be appointed [and] may appoint expert witnesses
of its own selection.”); U.S. v. Bonds, 12 F.3d 540, 568 (6th Cir. 1993)
(“Federal Rule of Evidence 706 permits the court on its own to appoint
an expert witness.”); Fugitt v. Jones, 549 F.2d 1001, 1006 (5th Cir.
1977) (“Rule 706(a)… confers on a district court the discretionary power
to appoint an expert on the court’s own motion…”)
IV.

CONCLUSION

For the reasons set forth above, the Court DENIES defendant’s
motion for summary judgment without prejudice.

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Pursuant to Fed. R. Evid. 706, the Court HEREBY ORDERS the
parties to show cause why it should not appoint a neuropsychologist to
conduct a full review of Jane Doe’s medical records and to conduct a
complete evaluation of Jane’s mental status. The Court will conduct a
telephonic status conference on January 20, 2015 at 10:00 a.m. to set a
briefing schedule and hearing on the show case order.

Dated: January 8, 2015
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on January 8, 2015.
s/Felicia M. Moses__________
FELICIA M. MOSES
Case Manager

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