Don't Bet the Business

In litigation, how often do you see an endless list of boilerplate affirmative defenses without any supporting facts or apparent relevance to the complaint at issue?  For most practitioners, the answer is “far too often.”

In-house counsel, private practitioners, and clients alike have now been forewarned that casual or boilerplate affirmative defenses could be waived, leaving defendants unnecessarily vulnerable in litigation.

On July 22, 2015, the Michigan Supreme Court decided Tyra v. Organ Procurement Agency of Michigan, 498 Mich. 68; ____ N.W.2d ___ (2015), a case involving a medical malpractice complaint that was filed prematurely before the period under the statutory notice of intent to file claim had expired. When previously heard by the Michigan Court of Appeals, the Court addressed defendants’ affirmative defenses stating: “[affirmative defenses] must state the facts constituting any affirmative defense so raised. The purpose of this requirement is to provide the opposing party with sufficient notice to the alleged affirmative defenses to permit that party to take a responsive position, and a stated affirmative defense that does so will not be deemed insufficient.”

The Michigan Court of Appeals was critical, to put it kindly, of the all too common practice of boilerplate and meaningless affirmative defenses: “the practice of filing ‘boilerplate’ affirmative defenses consisting of generic, unsupported, bald assertions of every conceivable affirmative defense irrespective of, and possibly even contrary to, any known facts is not only unnecessary, but wasteful, counterproductive, and in some instances possibly even contrary to MCR 2.114(D).” The appellate court then held, as to certain defendants, that “because defendants failed to provide any, let alone a comprehensible or adequate, statement of facts supporting the relative affirmative defense…the affirmative defense would be waived.”

While the majority of the Michigan Supreme Court in Tyra passed on the affirmative defense issue (and deemed it abandoned on appeal), a robust three-justice dissent soundly echoed the appellate court’s ruling on casual affirmative defenses. The dissent reiterated that the “primary function of a pleading is to give notice of the nature of the claim or defense to permit the opposing party to take a responsive position… an affirmative defense must be stated in sufficient detail to give the plaintiff fair notice of the defensive issues that the defendant will raise in the litigation.”  The dissent then found that where a defendant fails to provide factual detail supporting its affirmative defenses, or where the “global allegations” fail to put the plaintiff on reasonable notice of the nature of the defense, the affirmative defenses are inadequate under MCR 2.111(F) and should be deemed waived.            

This dissent should not be disregarded, and attorneys and parties should heed this warning, as this issue will likely be pressed in future cases.  As a matter of professional courtesy, extensions of time to file pleadings are routinely provided by opposing counsel.  Take advantage of this courtesy (or file a motion to extend time) and use the time to learn enough about the facts to carefully frame and plead your affirmative defenses.  When new facts are uncovered, through informal or formal discovery, promptly amend your affirmative defenses as necessary (amendments are, by rule, typically freely granted, but most practitioners have experienced instances where amendments were not permitted). 

You certainly do not want to be the one making new case law where this issue is adopted by the majority.