Bryan R. Walters, of Varnum LLP
In a 17-page opinion issued on June 5, 2014, the Honorable Gordon J. Quist of the United States District Court for the Western District of Michigan entered an order recognizing a judgment entered in Switzerland against former NHL hockey player Kevin Miller. The case is of particular local interest in that Miller was born and raised in Lansing, played college hockey for Michigan State University, and played professional hockey for a number of teams, including the Detroit Red Wings.
The underlying judgment against Miller arose out of an on-ice incident on October 31, 2010, between Miller and Andrew McKim during a Swiss hockey league game. Miller checked McKim from behind, hitting McKim in the head and neck and causing McKim to fall on the ice and hit his head. McKim suffered a concussion and other injuries and was hospitalized for several weeks. The Swiss hockey league determined that Miller’s check was intentional and suspended Miller for eight games.
In addition, McKim brought a civil lawsuit against Miller for injuries resulting from the incident. At the conclusion of the civil proceedings in Switzerland, judgment was ultimately entered in the amount of 1 million Swiss Francs against Miller, which, when converted to United States dollars, and adding interest, costs, and attorneys’ fees, resulted in a current judgment amount of approximately US $1.6 million.
Miller challenged recognition of the judgment under the Uniform Foreign Country Money Judgments Recognition Act (“FCMJRA”), which Michigan has adopted. Miller raised two arguments: (1) that the Swiss judgment was repugnant to public policy and violated due process because Miller was not allowed to cross-examine the independent expert who provided opinion testimony about Miller’s intent at the time he checked McKim; and (2) that it was repugnant to public policy and violated due process for the Swiss civil tribunal to consider as evidence the determination by the Swiss hockey league that Miller’s check of McKim was intentional.
The district court was not persuaded that either of these objections rose to the level of the Swiss judgment being repugnant to public policy. The court noted that the fact that Swiss law does not allow for cross-examination of expert witnesses “is a mere difference of procedure that does not trigger the public policy exception.” Op. at 11. The district court also noted that the civil tribunal’s consideration of the hockey tribunal’s disciplinary determination was not repugnant to Michigan public policy in that the hockey tribunal’s determination was only one of numerous sources of information, and the “Swiss civil court did not accord preclusive effect to the National League proceeding that determined that Miller intentionally injured McKim.” Id. at 12.
The district court also held that these concerns did not deny Miller due process in the Swiss civil proceedings. The district court clarified that foreign tribunals do not have to provide identical procedural safeguards as United States courts, but rather “must only be compatible in that they do not offend the notion of basic fairness.” Id. at 14. Although the court acknowledged that the procedures in the Swiss tribunal were not identical to those in the United States, particularly the restriction on Miller’s ability to cross-examine the independent expert, “the Court cannot say the Judgment presents a serious injustice or lacks basic fairness, such that nonrecognition is appropriate.” Id. at 15.
Bryan R. Walters is a partner in Varnum’s trial group specializing in federal court and bankruptcy court litigation, both in west Michigan and across the country. He also assists businesses in resolving disputes involving sales contracts, noncompete agreements, trade secrets, and other business issues. He can be reached at brwalters@varnumlaw.com
