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Michigan Defense Trial Counsel selects Lipson Neilson’s C. Thomas Ludden and Karen A. Smyth to draft amicus curiae brief for Michigan Supreme Court case Kostadinovski v Harrington

In the case of Kostadinovski v Harrington, the Michigan Supreme Court granted oral argument on the parties’ application and cross-application for leave to appeal. The Court also invited participation by Michigan Defense Trial Counsel (MDTC) as amicus curiae. The MDTC selected C. Thomas Ludden and Karen A. Smyth, Partners of the Lipson Neilson law firm, to draft the amicus brief on their behalf in support of the defendant’s application (click here to view amicus brief.)

Primarily at issue in Kostadinovski is how a plaintiff in a medical malpractice action can amend the complaint to include newly discovered claims, while complying with the notice of intent statute, MCL 600.2912b. The Court of Appeals, in a published opinion, had held that the trial court should have engaged in an analysis to determine whether the original notice of intent could be amended or if any defect in the notice should be disregarded, although this issue was not raised in the trial court.

MDTC’s amicus brief submitted that the Court of Appeals should not have relied on an argument raised for the first time on appeal. Addressing the issue of amendment, the brief submitted that the statutory language should be interpreted to require a plaintiff to serve a new notice of intent describing the new claims before pursuing those claims in an ongoing medical malpractice lawsuit.

Such an interpretation serves the goals of the notice statute. In contrast, allowing amendment of an existing notice of intent or simply disregarding the defect should not be permitted, as the substantial rights of the defendant would be impacted. Kostadinovski is scheduled to be argued before the Michigan Supreme Court on April 10, 2019.

C. Thomas Ludden heads the firm’s Appellate Law practice group. He has argued before the Sixth Circuit Court of Appeals and the Michigan Court of Appeals and has also appeared in the United States and Michigan Supreme Courts. This past December the Michigan Supreme Court re-appointed Mr. Ludden to a second consecutive three-year term on the Committee on Model Civil Jury Instructions. He specializes in appellate law, commercial litigation, and professional liability. Mr. Ludden can be reached at TLudden@lipsonneilson.com, or by calling 248-593-5000.

Karen A. Smyth has considerable experience counseling and defending lawyers, medical professionals and employers both directly and through insurance carriers. Ms. Smyth represents numerous other professionals, including insurance brokers and agents, real estate brokers and agents, directors & officers in a broad range of litigation matters in both state and federal courts. Ms. Smyth is the inaugural President of the Michigan Chapter of the Claims & Litigation Management Alliance. Ms. Smyth can be reached at KSmyth@lipsonneilson.com, or by calling 248-593-5000.

Founded in 1985, the Lipson Neilson law firm has grown from three founding members to thirty-four attorneys located in three states. Lipson Neilson attorneys represent and provide counsel to clients throughout the country and around the world.

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