STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE JOSEPH JACKSON, Plaintiff, v HON. BRIAN R. SULLIVAN Case No. 18-000971-NH HENRY FORD HEALTH SYSTEM, a Domestic Non-Profit Corporation, and JEFFREY MORGAN, M.D., Defendants. _____________________________________/ STEVE J. WEISS (P32174) Attorney for Plaintiff 1760 S. Telegraph Road Suite 300 Bloomfield Hills, MI 48302 (248) 335-5000 ANTHONY J. PARADISO (P40846) DANIEL J. RASSCHAERT (P70789) RAMAR & PARADISO, P.C. Attorneys for Henry Ford Health System 2151 Livernois Road Suite 300 Troy, MI 48083 (313) 965-4532 _____________________________________/ ANSWER TO COMPLAINT, TOGETHER WITH AFFIRMATIVE DEFENSES, FURTHER ANSWERS, RELIANCE ON DEMAND FOR JURY TRIAL, AND AFFIDAVIT OF SERVICE NOW COME the defendants, HENRY FORD HEALTH SYSTEM, by its attorneys, RAMAR & PARADISO, P.C., saving and reserving unto itself all right and manner of benefit and exception to the many insufficiencies and inaccuracies in the plaintiff's Complaint contained, and for its answer thereto, or to so much as it is advised it is necessary or material for it to answer, says: JURISDICTION AND VENUE 1. Answering paragraph 1 of said Complaint, defendant neither admits nor denies the allegations contained therein in the manner and form alleged and leaves the plaintiff to his strict proofs thereof. Further answering any and all remaining allegations, defendant avers that it was guided by and strictly observed all of its legal duties and obligations imposed by operation of law and otherwise, and that all of the actions of any of its agents, servants and employees were careful, prudent, proper and lawful. 2. Answering paragraph 2 of said Complaint, defendant admits the allegations contained therein. 3. Answering paragraph 3 of said Complaint, defendant neither admits nor denies the allegations contained therein in the manner and form alleged and leaves the plaintiff to his strict proofs thereof. 4. Answering paragraph 4 of said Complaint, defendant admits the allegations contained therein. 5. Answering paragraph 5 of said Complaint, defendant admits the allegations contained therein. 6. Answering paragraph 6 of said Complaint, defendant neither admits nor denies the allegations contained therein in the manner and form alleged and leaves the plaintiff to his strict proofs thereof. Further answering any and all remaining allegations, defendant avers that it was guided by and strictly observed all of its legal duties and obligations imposed by operation of law and otherwise, and that all of the actions of any of its agents, servants and employees were careful, prudent, proper and lawful. GENERAL ALLEGATIONS 7. Answering paragraph 7 of said Complaint, defendant repeats and realleges all answers set forth in paragraphs 1 through 6 of this Answer as though set forth fully herein, and the same are adopted by reference. P:\JACKSON.J\PLEADING\ANSWER-022518.wpd -2- 8. Answering paragraph 8 of said Complaint, defendant neither admits nor denies the allegations of duty and/or any implied or express representations regarding same in the manner and form alleged. Defendant states, however, that in all of its relationships with plaintiff, it was guided by and strictly observed all of its legal duties and obligations imposed by operation of law and otherwise, and that all of the actions of any of its agents, servants or employees were careful, prudent, proper, lawful and in strict accordance with the standard of practice as same existed at that time and place in relation to any professional services rendered by it to the plaintiff. 9. Answering paragraph 9 of said Complaint, this defendant denies any and all acts and/or omissions of professional negligence as may be expressly or impliedly asserted herein as being untrue and as such, Defendant Henry Ford Health System cannot be held vicariously liable as is being claimed. Further answering any and all remaining allegations, defendant avers that it was guided by and strictly observed all of its legal duties and obligations imposed by operation of law and otherwise, and that all of the actions of any of its agents, servants and employees were careful, prudent, proper and lawful. 10. Answering paragraph 10 of said Complaint, this defendant admits that plaintiff’s medical records reflect in part certain detailed medical information as more properly reflected in total in the records for that admission. Defendant neither admits nor denies the remaining allegations and leaves the plaintiff to his strict proofs thereof, except where there are inconsistencies with said medical records, and then the same are denied for the reason that they are untrue in the manner and form alleged. 11. Answering paragraph 11 of said Complaint, this defendant admits that plaintiff’s medical records reflect in part certain detailed medical information as more properly reflected in total in the records for that admission. Defendant neither admits nor denies the remaining allegations and leaves the plaintiff to his strict proofs thereof, except P:\JACKSON.J\PLEADING\ANSWER-022518.wpd -3- where there are inconsistencies with said medical records, and then the same are denied for the reason that they are untrue in the manner and form alleged. 12. Answering paragraph 12 of said Complaint, this defendant admits that plaintiff’s medical records reflect in part certain detailed medical information as more properly reflected in total in the records for that admission. Defendant neither admits nor denies the remaining allegations and leaves the plaintiff to his strict proofs thereof, except where there are inconsistencies with said medical records, and then the same are denied for the reason that they are untrue in the manner and form alleged. 13. Answering paragraph 13 of said Complaint, this defendant admits that plaintiff’s medical records reflect in part certain detailed medical information as more properly reflected in total in the records for that admission. Defendant neither admits nor denies the remaining allegations and leaves the plaintiff to his strict proofs thereof, except where there are inconsistencies with said medical records, and then the same are denied for the reason that they are untrue in the manner and form alleged. 14. Answering paragraph 14 of said Complaint, this defendant admits that plaintiff’s medical records reflect in part certain detailed medical information as more properly reflected in total in the records for that admission. Defendant neither admits nor denies the remaining allegations and leaves the plaintiff to his strict proofs thereof, except where there are inconsistencies with said medical records, and then the same are denied for the reason that they are untrue in the manner and form alleged. Further answering any and all remaining allegations, defendant avers that it was guided by and strictly observed all of its legal duties and obligations imposed by operation of law and otherwise, and that all of the actions of any of its agents, servants and employees were careful, prudent, proper and lawful. 15. Answering paragraph 15 of said Complaint, this defendant admits that plaintiff’s medical records reflect in part certain detailed medical information as more properly reflected in total in the records for that admission. Defendant neither admits nor P:\JACKSON.J\PLEADING\ANSWER-022518.wpd -4- denies the remaining allegations and leaves the plaintiff to his strict proofs thereof, except where there are inconsistencies with said medical records, and then the same are denied for the reason that they are untrue in the manner and form alleged. Further answering any and all remaining allegations, defendant avers that it was guided by and strictly observed all of its legal duties and obligations imposed by operation of law and otherwise, and that all of the actions of any of its agents, servants and employees were careful, prudent, proper and lawful. 16. Answering paragraph 16 of said Complaint, this defendant admits that plaintiff’s medical records reflect in part certain detailed medical information as more properly reflected in total in the records for that admission. Defendant neither admits nor denies the remaining allegations and leaves the plaintiff to his strict proofs thereof, except where there are inconsistencies with said medical records, and then the same are denied for the reason that they are untrue in the manner and form alleged. Further answering any and all remaining allegations, defendant avers that it was guided by and strictly observed all of its legal duties and obligations imposed by operation of law and otherwise, and that all of the actions of any of its agents, servants and employees were careful, prudent, proper and lawful. 17. Answering paragraph 17 of said Complaint, defendant neither admits nor denies the allegations contained therein in the manner and form alleged and leaves the plaintiff to his strict proofs thereof. Further answering any and all remaining allegations, defendant avers that it was guided by and strictly observed all of its legal duties and obligations imposed by operation of law and otherwise, and that all of the actions of any of its agents, servants and employees were careful, prudent, proper and lawful. 18. Answering paragraph 18 of said Complaint, defendant denies the allegations contained therein for the reason that they are untrue. P:\JACKSON.J\PLEADING\ANSWER-022518.wpd -5- COUNT I 19. Answering paragraph 19, Count I, of said Complaint, defendant repeats and realleges all answers set forth in paragraphs 1 through 18 of this Answer as though set forth fully herein, and the same are adopted by reference. 20. Answering paragraph 20, Count I, of said Complaint, defendant neither admits nor denies the allegations of duty and/or any implied or express representations regarding same in the manner and form alleged. Defendant states, however, that in all of its relationships with plaintiff, it was guided by and strictly observed all of its legal duties and obligations imposed by operation of law and otherwise, and that all of the actions of any of its agents, servants or employees were careful, prudent, proper, lawful and in strict accordance with the standard of practice as same existed at that time and place in relation to any professional services rendered by it to the plaintiff. 21. Answering paragraph 21, Count I, of said Complaint, defendant neither admits nor denies the allegations of duty and/or any implied or express representations regarding same in the manner and form alleged. Defendant states, however, that in all of its relationships with plaintiff, it was guided by and strictly observed all of its legal duties and obligations imposed by operation of law and otherwise, and that all of the actions of any of its agents, servants or employees were careful, prudent, proper, lawful and in strict accordance with the standard of practice as same existed at that time and place in relation to any professional services rendered by it to the plaintiff. 22. Answering paragraph 22, Count I, of said Complaint, this defendant denies any and all acts and/or omissions of professional negligence as may be expressly or impliedly asserted herein as being untrue and, as such, Defendant Henry Ford Health System cannot be held liable as is being claimed. Further answering any and all remaining allegations, defendant avers that it was guided by and strictly observed all of its legal duties and P:\JACKSON.J\PLEADING\ANSWER-022518.wpd -6- obligations imposed by operation of law and otherwise, and that all of the actions of any of its agents, servants and employees were careful, prudent, proper and lawful. 23. Answering paragraph 23, Count I, of said Complaint, defendant neither admits nor denies the allegations of duty and/or any implied or express representations regarding same in the manner and form alleged. Defendant states, however, that in all of its relationships with plaintiff, it was guided by and strictly observed all of its legal duties and obligations imposed by operation of law and otherwise, and that all of the actions of any of its agents, servants or employees were careful, prudent, proper, lawful and in strict accordance with the standard of practice as same existed at that time and place in relation to any professional services rendered by it to the plaintiff. 24. Answering paragraph 24, and subparagraphs (a) through (f), Count I, of said Complaint, defendant denies the allegations contained therein for the reason that they are untrue. 25. Answering paragraph 25, Count I, of said Complaint, this defendant specifically denies any and all acts and/or omissions of professional negligence as may be expressly or impliedly asserted herein as being untrue and, rather, defendant avers that it was guided by and strictly observed all of its legal duties and obligations imposed by operation of law and otherwise, and that all of the actions of any of its agents, servants and employees were careful, prudent, proper and lawful. Defendant neither admits nor denies any remaining allegations contained therein in the manner and form alleged and leaves the plaintiff to his strict proofs thereof. 26. Answering paragraph 26, Count I, of said Complaint, defendant denies the allegations contained therein for the reason that they are untrue. 27. Answering paragraph 27, Count I, of said Complaint, defendant denies the allegations contained therein for the reason that they are untrue. P:\JACKSON.J\PLEADING\ANSWER-022518.wpd -7- 28. Answering paragraph 28, Count I, of said Complaint, defendant denies the allegations contained therein for the reason that they are untrue. Further answering any and all remaining allegations, defendant avers that it was guided by and strictly observed all of its legal duties and obligations imposed by operation of law and otherwise, and that all of the actions of any of its agents, servants and employees were careful, prudent, proper and lawful. 29. WHEREFORE, defendant, HENRY FORD HEALTH SYSTEM, asks that Count I of plaintiff's Complaint be dismissed as to defendant, with costs and attorneys' fees to this defendant most unjustly sustained. COUNT II 30. Answering paragraph 30, Count II, of said Complaint, defendant repeats and realleges all answers set forth in paragraphs 1 through 29 of this Answer as though set forth fully herein, and the same are adopted by reference. 31. Answering paragraph 31, Count II, of said Complaint, defendant neither admits nor denies the allegations of duty and/or any implied or express representations regarding same in the manner and form alleged. Defendant states, however, that in all of its relationships with plaintiff, it was guided by and strictly observed all of its legal duties and obligations imposed by operation of law and otherwise, and that all of its actions and the actions of any of its agents, servants or employees were careful, prudent, proper, lawful and in strict accordance with the standard of practice as same existed at that time and place in relation to any professional services rendered by it to the plaintiff. 32. Answering paragraph 32, and subparagraphs (a) through (f), Count II, of said Complaint, defendant denies the allegations contained therein for the reason that they are untrue. 33. Answering paragraph 33, Count II, of said Complaint, this defendant specifically denies any and all acts and/or omissions of professional negligence as may be expressly or impliedly asserted herein as being untrue and, rather, defendant avers that it was P:\JACKSON.J\PLEADING\ANSWER-022518.wpd -8- guided by and strictly observed all of its legal duties and obligations imposed by operation of law and otherwise, and that all of the actions of any of its agents, servants and employees were careful, prudent, proper and lawful. Defendant neither admits nor denies any remaining allegations contained therein in the manner and form alleged and leaves the plaintiff to his strict proofs thereof. 34. Answering paragraph 34, Count II, of said Complaint, defendant denies the allegations contained therein for the reason that they are untrue. 35. Answering paragraph 35, Count II, of said Complaint, defendant denies the allegations contained therein for the reason that they are untrue. 36. Answering paragraph 36, Count II, of said Complaint, defendant denies the allegations contained therein for the reason that they are untrue. 37. WHEREFORE, defendant, HENRY FORD HEALTH SYSTEM, asks that Count II of plaintiff's Complaint be dismissed as to defendant, with costs and attorneys' fees to this defendant most unjustly sustained. RAMAR & PARADISO, P.C. BY: /S/ Anthony J. Paradiso ANTHONY J. PARADISO (P40846) DANIEL J. RASSCHAERT (P70789) Attorneys for Henry Ford Health System 2151 Livernois Road Suite 300 Troy, MI 48083 (313) 965-4532 DATED: March 1, 2018 P:\JACKSON.J\PLEADING\ANSWER-022518.wpd -9- AFFIRMATIVE DEFENSES NOW COMES the defendant herein, by its attorneys, RAMAR & PARADISO, P.C., and by way of affirmative defense, states that it will rely upon and insist in its defense and demands reply hereto: 1. That defendant reserves the right to add to its answer and to rely upon all affirmative defenses as may be hereafter disclosed by way of discovery. 2. That plaintiff was advised of and knew the importance of the operation to correct the condition of which he was then suffering, and that said operation was explained to him both before and after the operation, and that he fully consented thereto. 3. That any and all claims of breach and/or expressed contract, or warranty of care, or of specific result are hereby barred and rendered unenforceable pursuant to the provisions of Public Act No. 343 of 1974, MCLA 566.132, Section 2G, being the Michigan Statute of Frauds. 4. That the claim set forth in this Complaint is barred by the applicable Statute of Limitations. 5. That defendant denies that there was at any time pertinent to the allegations contained in plaintiff's Complaint a contract between plaintiff and defendant, but further avers that even if such contract had existed, it would be barred by the laws of the State of Michigan, particularly including, but not limited to, the Statute of Frauds. 6. That the claims are barred for failure of plaintiff to comply with MCLA 600.2912b by failing to properly file and provide all defendants with a sufficient notice of intent. 7. That the claims are barred for failure of plaintiff to provide adequate information in the Notice of Intent to Sue as required by MCLA 600.2912b. P:\JACKSON.J\PLEADING\ANSWER-022518.wpd -10- 8. That the claims are barred against one or all defendants for failure of plaintiff to file an Affidavit of Merit as required under MCLA 600.2912d. 9. That the claims are barred against one or all defendants for failure of plaintiff to file an Affidavit of Merit that conforms to the requirements of MCLA 600.2169 and MCLA 600.2912d for each specific defendant and allegation. 10. That plaintiff’s claim is barred and/or plaintiff may not present or introduce any physical, documentary or testimonial evidence relating to the party’s medical history, or mental or physical condition, for failure to comply with MCLA 600.2912b and the Michigan General Court Rules in failing to provide all medical information about the mental and physical condition of the party from all sources, whether or not such information was in the party’s immediate physical possession, and in failing to allow timely access thereto as requested. 11. That plaintiff’s allegations of damages for non-economic loss, including, but not limited to, damages or loss due to pain, suffering, inconvenience, physical impairment, physical disfigurement or other non-economic loss may not exceed $280,000, or if plaintiff meets the exceptions to the non-economic caps, then $500,000, or as modified by statute or adjusted to reflect the annual CPI. 12. That plaintiff is bound by all applicable sections of MCLA 600.6013, including, but not limited to, the fact that interest shall not be allowed on future damages from the date of filing the Complaint to the date of the entry of any judgment. 13. That any expense or loss paid or payable in whole or in part by a collateral source shall be reduced from any verdict pursuant to statute. 14. That any applicable sections of MCLA 600.6305 apply, including, but not limited to, calculation and reduction of future damages or judgments. 15. That plaintiff’s allegations for damages of non-economic loss, including, but not limited to, damages or loss due to pain, suffering, inconvenience, physical impairment, P:\JACKSON.J\PLEADING\ANSWER-022518.wpd -11- physical disfigurement or other non-economic loss may not exceed $225,000, or as modified by statute. 16. That plaintiff failed to make every reasonable effort to mitigate, prevent and/or reduce the alleged damages and injuries. 17. That any liability on the part of the defendant is several and is limited to its own actionable fault. 18. That this defendant is entitled to a determination of the percentage of fault on the part of others, and a corresponding reduction or credit against any monetary judgment consistent with the determination of the percentage of fault of others. WHEREFORE, defendant, HENRY FORD HEALTH SYSTEM, prays that this suit be dismissed as to it, with costs and attorneys' fees to this defendant most unjustly sustained. FURTHER ANSWERS 1. Further answering plaintiff's Complaint and each and every section, defendant avers that in its relationship with plaintiff, it was guided by and strictly observed all of its legal duties and obligations imposed by operation of law and otherwise, and that all of the actions of any of its agents, servants and employees were careful, prudent, proper, lawful and in strict accordance with the standard of practice as the same existed at that time and place in relation to any professional services rendered by it to the plaintiff. 2. Further answering said Complaint, defendant avers that the plaintiff's Complaint on its face is improper in form and not in accordance with the rules set forth in the Michigan Court Rules of 1985; that it is inadequate, insufficient and defective in that it pleads only conclusions; that it fails to contain the required allegations necessary to state a cause of action against this defendant, and it does not state a cause of action, either as a matter of fact or as a matter of law, and accordingly, should be stricken. Defendant gives notice that a P:\JACKSON.J\PLEADING\ANSWER-022518.wpd -12- Motion for Summary Disposition will be brought on for hearing before a judge of this Court to whom this case shall be regularly assigned to hear such motions at a time to be provided hereafter. 3. This defendant demands an itemized bill of particulars setting forth specifically and in detail each and every item of loss, damage and expense claimed and relied upon by plaintiff, together with the nature and amount of such item or items and the person or persons to whom such amounts have been paid or indebtedness exists; defendant hereby gives notice that, upon failure of plaintiff to timely furnish same within due course, defendant will ask to have this case dismissed because of such failure. 4. This defendant further states that the plaintiff was advised and knew the import of the medical procedure in question and that said procedure was explained to him both before and after the procedure, and that he fully consented thereto. WHEREFORE, defendant, HENRY FORD HEALTH SYSTEM, prays that this suit be dismissed as to it, with costs and attorneys' fees to defendant most unjustly sustained. RAMAR & PARADISO, P.C. BY: /S/ Anthony J. Paradiso ANTHONY J. PARADISO (P40846) DANIEL J. RASSCHAERT (P70789) Attorneys for Henry Ford Health System 2151 Livernois Road Suite 300 Troy, MI 48083 (313) 965-4532 DATED: March 1, 2018 P:\JACKSON.J\PLEADING\ANSWER-022518.wpd -13- STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE JOSEPH JACKSON, Plaintiff, v HON. BRIAN R. SULLIVAN Case No. 18-000971-NH HENRY FORD HEALTH SYSTEM, a Domestic Non-Profit Corporation, and JEFFREY MORGAN, M.D., Defendants. _____________________________________/ RELIANCE ON DEMAND FOR JURY TRIAL NOW COMES the defendant, HENRY FORD HEALTH SYSTEM, by and through its attorneys, RAMAR & PARADISO, P.C., and hereby relies upon Plaintiff’s Demand for Jury Trial previously filed relative to the above-captioned matter. RAMAR & PARADISO, P.C. BY: /S/ Anthony J. Paradiso ANTHONY J. PARADISO (P40846) DANIEL J. RASSCHAERT (P70789) Attorneys for Henry Ford Health System 2151 Livernois Road Suite 300 Troy, MI 48083 (313) 965-4532 DATED: March 1, 2018 P:\JACKSON.J\PLEADING\ANSWER-022518.wpd -14- STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE JOSEPH JACKSON, Plaintiff, v HON. BRIAN R. SULLIVAN Case No. 18-000971-NH HENRY FORD HEALTH SYSTEM, a Domestic Non-Profit Corporation, and JEFFREY MORGAN, M.D., Defendants. _____________________________________/ AFFIDAVIT OF SERVICE STATE OF MICHIGAN COUNTY OF OAKLAND ) ) SS. ) ANDREA A. PARISI, being first duly sworn, deposes and says that she is employed with the firm of RAMAR & PARADISO, P.C., and that on the 1st day of March, 2018, she personally served: ANSWER TO COMPLAINT, TOGETHER WITH AFFIRMATIVE DEFENSES, FURTHER ANSWERS, RELIANCE ON DEMAND FOR JURY TRIAL, and AFFIDAVIT OF SERVICE upon: STEVE J. WEISS, Attorney for Plaintiff, 1760 S. Telegraph Road, Suite 300, Bloomfield Hills, MI 48302 by having same enclosed in an envelope with postage thereon fully prepaid and deposited in a United States postal receptacle. Further, affiant saith not. /S/ Andrea A. Parisi ANDREA A. PARISI P:\JACKSON.J\PLEADING\ANSWER-022518.wpd -15-