Premature Filing Defeats Defendants’ Early Toxic Tort Victory

The published opinion of the Court of Appeals in Powell-Murphy is especially instructive for defendants. The Court emphasized to all defendants that the premature filing of a summary disposition motion will not be tolerated or looked upon favorably by the courts. As a general rule, “‘summary disposition…is premature if it is granted before discovery on a disputed issue is complete.’” This is particularly true where causation requires expert testimony, but the deadline for expert testimony had not expired. The cost savings of an early motion for summary disposition must be weighed against the risk that the motion may be premature, or if discovery is open, an expert will be retained simply to file an affidavit to create a question of fact to defeat the motion.

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