Here it is, retyped cause the original is a poor fax
 
Court of Appeals, State of Michigan
 
                ORDER
 
The Court orders that the motion for immediate consideration is GRANTED
 
The application for leave to appeal is DENIED for lack of merit in the
grounds presented
 
Griffin, J. (Dissenting).  I repectfully dissent.  I would grant plaintiff's
application for leave to appeal on an expedited basis and stay the order for
euthanizaion.
 
It strongly appears that the Michigan Department of Community Health and the
county defendants are violating state law by pursuing a policy that requires
the euthanization of all ferrets in all circumstances in which a human is
bitten or scratched.  The risk analysis mandated by MCL 287.892(3) and the
Center of Disease Control 1997 compendium of animal rabies control
prevention, part 3(b)(6), has been ignored and never followed by the
governmental officials Contrary to state law, the governmental policy
appears to be "if they (ferrets) bite people or pets they (ferrets) should
be euthanized and tested." (May 6, 1997, letter of Martha P.  Fitzhugh,
corporate counsel Bay County.)
 
In its brief, the Michigan Department of Community asserts that it is not
bound by the 1997 CDC guidelines.  Rather, the state contends that it is
obligated to follow the 1991 CDC recommendations which state in pertinent
part, "(b) because the period of rabies virus shedding in the animals
[exotic pets, (including ferrets)] is unknown, these animals should be
killed and tested rather than confined and observed when they bite humans."
Leave should be granted based on the importance of this legal issue.
 
Although on remand the circuit court applied the appropriate legal
standards, I find the findings of fact to be clearly erroneous.
 
Kodo the ferret is eleven months old.  He was vaccinated for rabies at two
months according to the testimony adduced at the evidentiary hearng the
effectiveness of the ferret rabies vaccine is approximately ninety percent.
Further, there is disagreement in the medical community as to the virus
shedding period.
 
Because the vaccine may not be one hundred percent effective and due to the
uncertainty of the virus shedding period, I agree with the lower court that
the potential for exposure to rabies exists.  Accordingly, pursuant to
MCL287.892(3).  We are to perform a risk analysis pursuant to the CDC
guidelines.
 
The 1997 CDC guidelines provide in pertinent part the following:
 
Prior vaccination of an animal may not preclude the necessity for euthanasia
and testing if the period of virus shedding is unknown for that species.
Management of animals other than dogs and cats depends (1) on the species,
(2) the circumstances of the bite, (3) the epidemiology of the rabies in the
area,, (4) the biting animal's history, (5) current health status, (6)
potential for exposure to rabies.
 
                                        1
                                    (Species)
 
The bite in the present case was administered by a ferret.  According to
defendants' expert, only one ferret is known to ever have contracted rabies
and that case occured in the 1980's.  Since that time, governmental
officials have euthanized over 160 ferrets who had scratched or bitten
humans.  None of the euthanized ferrets were determined to have rabies.  In
view of this history, it is unlikely that the species contains rabies.
 
                                        2
                        Circumstances of the bite
 
It is not disputed that the circumstances of the bite does not provide any
evidence of a rabid animal.  On the contrary, while the ferreet was being
shown for educational purposes, the victim accidentally bumped into the
ferret's face, causing a break of the skin.  The ferret did not attack and
showed no signs of aggressiveness
 
                                        3
                        THE EPIDEMIOLOGY OF RABIES IN THE AREA
 
There have been no cases of rabies in ferrets in the Bay County area.  There
were no cases of rabies of any kind in the County of Saginaw in 1996.  There
were only four cases of rabies in contiguous counties, all involving bats.
 
                                        4
                                BITING ANIMALS HISTORY
 
Kodo the ferret has not bitten any other person.
 
                                        5
                                CURRENT HEALTH STATUS
 
According to Kodo's veterinarian, the ferret is in excellent health and
shows no signs of disease or rabies.
 
                                        6.
                        POTENTIAL FOR EXPOSURE TO RABIES
There is no evidence that any of the other ferrets associated with Kodo were
exposed to rabies.  There is no evidence that any animal possessing rabies
ever came in contact with Kodo
 
After purporting to apply the above standards, the lower court conducluded
"that it is highly unlikelythat the ferret in this case has rabies." I agree
with this determination.  Further, after balancing of the 1997 CDC factors,
I conclude that the factors overwhelmingly flavor plaintiffs.  The lower
court's findings to the contrary are clearly erroneous.
 
I would grant leave to appeal and stay the lower court order.
 
 
Richard Allen Griffin
        Judge
[Posted in FML issue 1963]