TOV Injury and Safety Blog

Verdict for women raped in prison will go primarily to lawsuit lender due to 88% return

The Detroit Free Press reported on a travesty of justice this week.  Eight women sued the State of Michigan and won a 5 million dollar verdict arising out of having endured prison rapes.  The State appealed.  While the case was on appeal, the women borrowed $635,000.00 from MONEY FOR LAWSUITS, a company that makes loans at outrageous rates to individuals who are likely to achieve verdicts or settlements from a wrongdoer.  Eventually, the State agreed to compromise the judgment and agreed to pay the women $3.5 million dollars.  This week, a judge ruled that the company is owed $3.1 million dollars of the settlement.  The contract Money For Loans prepared calls for 4.25% interest compounded monthly, according to the Free Press, resulting in an 88% return.  Even competitors in the lawsuit funding industry objected to the terms of the contract demanded by Money For Lawsuits.  Mark Bello of Lawsuit Financial claims his company will never demand more than fifty percent of an injury victim's recovery.

One former Feiger attorney explained that in two recent cases where he had achieved substantial verdicts, his clients owed "four or five times" what they had been loaned because of unethical--but perhaps legal--interest demands. To date, our firm has been successful in persuading our clients to avoid these "litigation funding" firms.  Unfortunately, many injury victims face extensive medical billings (often in the hundreds of thousands of dollars) and are unable to work:  they are ripe for abuse at the hands of someone with money and the ability to "invest" it for a few months or years.

Court holds damages proofs were adequate and not "speculative."

Citizens Bank sued Scott Withers and Withers Steel Service Center, alleging that Withers' father had fraudulently transferred to Withers property in which Citizens was owed a security interest.  Citizens obtained a default judgment and a hearing was held to assess damages.  Withers argued that the judgment resulting from this hearing was mistaken in its damage computation because it lacked precision and was based on speculation about future profits. The Court of Appeals upheld the judgment, noting that the court "calculated ...damages as precisely and reasonably as possible."

Company's attempt to "coach" and intimidate witnesses backfires

Raymond Tackett and Thomas McGregor successfully appealed the dismissal of their wrongful discharge and whistleblower claims against Group Five Management Company.   Group Five was apparently being sued because of an electrical fire that was allegedly caused by negligence.  Tackett and McGregor were summoned to a "deposition preparation" meeting, where they were told the suit could put the company out of business and eliminate their jobs.  They were then told that they "did not need to know or remember anything."  When they indicated that they would be truthful and would not lie under oath, they were both subsequently fired.The two men filed a Whistleblower retaliation claim, however, the Wayne County Circuit Judge dismissed their claims, based on a faulty interpretation of the Whistleblower Protection Act (WPA).  The Defendant argued that the WPA did not apply to the two mens' cases because they were fired before anyone had noticed their depositions, because they were acting out of personal vindictiveness and not in response to a WPA-protected activity; and because there was no direct evidence that they were fired in retaliation for their failure to cooperate with attempts to "coach" or sanitize their testimony.

On appeal, the three judge panel unanimously over-turned the lower court decision and sent the cases back to be decided by the jury.  While the high court held that the timing of Defendant's termination decision was not "direct" evidence of retaliation; when combined with the other factual circumstances documented by the two Plaintiffs, there was ample circumstantial evidence to send the case to trial.  The Court noted that there was a conflict in testimony regarding the reasons offered for the Plaintiffs' discharge and corroborating evidence circumstantially supporting an illegal motive.  Surprisingly, it did not express outrage at the Defendant's alleged attempt to undermine the litigation process through "coaching" and intimidation.

State seizes prisoner's life insurance proceeds and he is not allowed to waive receipt

Wayne Snyder was imprisoned in 1999.  When his mother died, Snyder was to receive life insurance proceeds in the amount of $2500.00.  The State Treasurer seized the proceeds, however, and obtained a court order granting the state 90% of the insurance money  under the Correctional Facility Reimbursement Act.  Snyder appealed.

Woman allowed to introduce evidence of defendant driver's guilty plea; injury verdict upheld

Nicole Motyka sued Fawzea Bassam Abusalah and Ahmed Shafik Khalil for auto neglience.  She also sued her own no fault insurer, Titan, after it stopped paying for her accident-related medical expenses.  At trial against Abusalah, she achieved a verdict that ultimately became a judgment of $183,000.00.  Abusalah's insurance company appealed, arguing that the verdict should be over-turned because the judge allowed Motyka's attorneys to cross-examine Abusalah with her statement in District Court accepting responsibility for the collision. The defendants also argued that they should have been allowed to cross-examine Motyka at length about her dispute with her own insurer.

Court limits discharged attorney to fees equal to original contingent fee agreement

The Giles Law Firm represented Ruby & Associates in an accounting malpractice claim after Ruby's accountant failed to recognize fraud by an employee who embezzled more than a million dollars, rendering Ruby insolvent.  The case became complicated when Giles was dissatisfied with the expert it had retained and refused to pay him.  Ultimately the attorney-client relationship broke down and Ruby stopped communicating with Giles.  A third attorney took over the several pieces of related litigation and compromised them.  Giles attempted to persuade Ruby not to compromise, arguing that the settlement under discussion would not adequately compensate Giles for the work and expense he incurred.

Restaurant not responsible for elderly woman's fall and subsequent death

The Estate of 77-year old Nancy VanAntwerp sued the Grosse Pointe Village Grill, Inc., after she fell while leaving the restaurant. She suffered an intracranial bleed in the fall and died two weeks later.  The family claimed that the woman fell after a rubber mat slipped underneath her foot; they argued it hadn't been properly affixed to the slippery floor.  The family also argued that it was entitled to an inference the matt was defective because the restaurant failed to produce it for examination.

Malpractice claimant cannot sue hospital where she cannot identify employee who allegedly gave her bad advice.

Rasheedah Pearson sued several doctors and Detroit Receiving Hospital.  She alleged that an employee of the hospital caused her to secure an unnecessary abortion by telling her, incorrectly, that a Depo-Provera injection she received would put the health of her fetus at risk.  She also sued the doctor who performed the abortion, claiming he failed to correct the misunderstanding before performing the procedure.

Sears may have to pay for its "independent" installer's negligence

Marcy, Patricia and Christopher Hill sued Sears, Roebuck and others alleging negligence.  They had purchased a new home and bought a new, electric dryer from Sears.  They did not realize, however, that the previous owners of the home had removed a GAS dryer and failed to disconnect or "cap" the gas line.  The Sears installer brought in the electric dryer, did not address the uncapped gas line and in fact located the new dryer in a manner that obscured the uncapped line.

Lawyer who includes police dog as a named defendant must pay costs

When Inez Starks' lawyer sued the officers who arrested her, and the dog they used to assist in the arrest, the Court properly taxed her for making a frivolous claim, according to the Court of Appeals.  Apparently the attorney--who will probably be the person paying the costs--admitted to the Court that he named the dog as a publicity stunt.

Driveway ice should have been noticed by visitor but not by owner.....?

This week the Court of Appeals upheld the dismissal of Nicholas Lawson's lawsuit against Cherylene Norton (and her insurer).    Lawson suffered a severe ankle fracture that required multiple surgeries while walking up Norton's driveway to perform a repair estimate.  He said that he fell on ice that he did not see because it was clear.  He and others testified that the temperature was in the 40s and that it had not snowed in several days.  He also testified that there was no snow or ice on the ground, although he also told the defense attorney, on cross-examination, that pictures taken by the Defendant four days later "accurately depicted" the condition of the driveway and defendant's home:  those pictures showed snow in the area.

Insurer cannot use delay in opening Defendant's estate to support statute of limitations dismissal

Paul Marsack was injured in a collision allegedly caused by Laura Gabriel.  Just as he filed suit against her, however, Gabriel died from unrelated causes.  No one in Gabriel's Estate needed to open a Probate Estate for Gabriel, so Marsack's attorneys were forced to re-style their Complaint as one against Gabriel's Estate, and open the Estate, themselves.  They could not enlist the cooperation of the Defendant's family or the public administrator until the local Probate Court ordered the public administrator to serve as the Personal Representative of the Defendant's Estate.  When she did act in that capacity, she immediately used the delay encountered in opening the Defense Estate to argue that the case should be dismissed for violating the applicable statute of limitations.  The Trial Court in Sanilac County rejected her argument and she appealed.  The Court of Appeals issued a brief opinion this week, refusing to allow the Defendant to raise a delay occasioned by her own passive resistance to justify a statute of limitations defense.

Visitor cannot sue landlord after stairway collapses under him

Delano Parker was badly hurt while visiting his cousin's rented home.  He was negotiating the basement stairs when a step "collapsed" under him.  As he started to fall, he transferred his weight to the next-lower stair which also broke in half, causing him to fall the remaining "six or seven" steps to the basement floor.

Satellite TV installer may be "agent" of DISH provider

Linda Sue Wolford was badly hurt in a car accident, when a dish TV installer's service truck crossed the centerline at high speed and struck her vehicle.  The installer, Phillip Pikarski, had just completed one installation, and was dropping the paperwork off at the TV-service retailer's headquarters between installations when the accident occurred.  Wolford's attorneys sued Pikarski and the retailer, however, the Circuit Court judge dismissed her claims against the retailer, Thumb Home Real Video, LLC.

Malpractice claim dismissed because plaintiff's expert spends more time in a sub-specialty of radiology

Scott Johnson sued Sultan Bhimani, M.D., and Advanced Diagnostic Imaging, alleging that Bhimani's error in reading Johnson's pelvic x-rays resulted in long-term complications for Johnson.  Johnson's only expert witness was a doctor who was, like Bhimani, a specialist in diagnostic radiology.  When he was deposed, however, the expert testified that he regularly spent more of his time in the sub-specialty of neuroradiology.   On that basis, the defendants asked the Court to dismiss Johnson's case:  it did not argue that the expert was not "qualified" by knowledge and expertise, but rather that he did not meet the Legislature's "tort-reform" requirements to testify.  The trial court agreed and dismissed Johnson's claim.  Two of the three Court of Appeals' judges agreed and upheld the dismissal.  The dissenting judge vehemently disagreed with this outcome, stressing the substantial "overlap" between the practice of the relevant specialty and related sub-specialties, and a prior holding of the U.S. Supreme Court to the effect that "We need not leave our common sense at the doorstep when we interpret a statute."

Attorneys assessed costs for filing a frivolous claim

The Court of Appeals upheld a sanction award of $11,000.00 against attorneys Mark R. Dancer and James P. O'Neill, despite the fact that Dancer was never notified of the request for sanctions or allowed to defend the claim.  The Wexford County Circuit Court determined that Dancer filed a complaint that he had not adequately investigated and assessed costs without allowing Dancer an opportunity to defend  the allegation.  The Court of Appeals upheld the award, despite a spirited dissent from one of the Judges:  the dissenting judge cited extensive law supporting his conclusion that it is a denial of due process to award such sanctions where the attorney has not been allowed an opportunity to respond.  The case is entitled Guy and Bethany Hissong v. Mark R. Dancer.

Case against MDOT dismissed because notice wasn't filed in Court of Claims

Hubert Kline suffered severe injuries when his car was struck by an MDOT vehicle on August 9, 2007.  Within two months, he sent a detailed  "statutory notice of claim" to MDOT by certified mail.   He didn't file the Notice in the Court of Claims, however, until April of 2008, and didn't file a notarized copy with the Court of Claims until June.  In 2009, MDOT moved to dismiss Kline's lawsuit because he didn't comply with the strict terms of the governmental immunity statute, which required that the Notice be filed with the Clerk of the Court of Claims within six months of the injury.  The trial judge refused to dismiss the claim and MDOT appealed.

Court of Appeals overturns lower court rulings involving ambulance wreck

James Schmeling, an EMT, was badly hurt when his co-worker drove an ambulance into the path of a Waste Management truck that had the right of way.  Schmeling sued Waste Management and its driver, claiming that the driver was exceeding the speed limit and contributed to the collision.   The lower court held that since Schmeling's "exclusive remedy" against his employer and co-worker was worker's compensation, Waste Management could not assign "fault" to these third-parties to reduce any verdict against it.  The Court of Appeals overturned this decision, holding that regardless of whether Schmeling had a "remedy" against the co-worker and employer, their fault would still reduce his potential recovery.

Release signed by plaintiff is enforced to preclude lawsuit

Anthony Brace became involved in a dispute with Polyblank Builders.  In the process of resolving the dispute, the parties apparently came up with a plan for remediation and executed "mutual releases," releasing each other from liability.  When Brace was dissatisfied with the outcome, he attempted to sue Polyblank, but the Court dismissed his case.  Under the plain language of the document he had signed, he had given up the right to sue for Polyblank's negligence or breach of contract.

Release executed by litigants does not protect an attorney from malpractice claim

The Laethem Equipment Company and others sued the law firm Currie Kendall, PLC, in Saginaw, after a "complicated family dispute" was resolved by a settlement and mutual release.  The plaintiffs in the instant case claim that Currie Kendall was  guilty of professional negligence in their handling of the dispute.  Currie Kendall sought dismissal of the claim, arguing that the mutual release signed by the parties to the original dispute should have operated to protect the attorneys from a malpractice claim.  The Court  emphasized the cautionary axiom that one must not confuse "what is being released" [all claims arising out of the transaction] with "who is being released" [the signatories to the Release].  Finding no basis to interpret the document as releasing the attorneys--or including them in a definitive class of persons intended to be released --the Court refused to interpret it as having that effect.

Worker's claim of negligence against equipment repairman is dismissed

Randall Carnell was hurt when he slipped on a puddle of hydraulic oil and fell in his his employer's industrial garage.   Crandall slipped on an oil spill leaking from the rear hub and chain case of a skid steer that had been repaired by a Wolverine Tractor & Equipment repairman three days earlier.  Nevertheless, the mechanic claimed that while he checked the hub and chain case fluid level, he did not perform any work on it.  His bill didn't charge for any work on the hub and chain case.

The Court held that since the skid steer was moved  into the garage after the mechanic completed his work--and could have been tampered with over the weekend--it was "mere speculation" for the injured man to claim that the mechanic had done something to cause the oil leak.  As a result, the injury claim could not be submitted to the jury to test the veracity of his testimony.

Government agencies struggle with the task of placing a value on an individual life

Media outlets on  February 16 reported on developments in Washington, D.C., as federal agencies arm-wrestled over placing a value on human life.  The New York Times, for example, reported that federal agencies are allowed to assign different values for one life, and the "valuations" utilized by various agencies vary  widely.  The FDA, for example, places a value of $7.9 million dollars on a single life, while the EPA values a life at $9.1 million dollars.  The Transportation Department uses a value of approximately 6 million dollars. 

These estimates are calculated by different means in each agency.  Some rely upon consumer surveys estimated how much individuals would pay to avoid a particular risk.  Other valuations rely on computations of incremental pay that must be offered to induce workers into more risky occupations.  Still others simply add up the total wages lost when a worker dies:  obviously this calculation--unlike most Americans--- places no value on a worker's life outside the trenches.

Corporations and the government use these valuations to determine--by cost-benefit analysis--whether, for example, a road should be made safer, new labeling should be required on prescriptions, and whether there should be tighter restrictions on air pollution.  The involved agency and regulated corporations attempt to determine how many lives would be saved by the proposed change, and then multiple that number by the estimated value of a single life:  the "value" of the regulatory change is then compared to the cost of the modification, regulation or investigation, to determine whether it is justified.

Somehow, the whole business seems a little like trying to assess how many angels can dance on the head of a pin.  That is especially true in a walk of life where legislators and jurors routinely place a "value" on a life--or the "cost" of a wrongful death--at something well below the economists' numbers.   A few years ago, Michigan  "reformers" held that the "value" of a life lost in most malpractice and product liability cases is $285,000.00--plus lost income, if there is any.  

Michigan's legislators, in another example, have mandated a minimum auto liability coverage of only $20,000.00, and all of th no fault and tort "reforms" since 1974 have refused to increase that value with the cost of living.  [If you hadn't already realized it, tort "reforms" only reform for the benefit of the insurance industry--not for the benefit of insureds or consumers.]  Thus, as a practical matter, we often see cases where the "value" of a life wrongfully ended is as low as $20,000.00 or $50,000.00--even though more reasonable mandatory minimums could be legislated at a cost per insured driver of less that fifty dollars per year. 

Unfortunately, the "value of a life"  is never as great, in theoretical terms, as it is to the person who owns it; and the value is never as great in anticipation of loss (i.e. when  you go to the voting booth or when you write your check for an insurance premium) as it is when the loss is realized.  And insurers know how to exploit that discrepancy.

Court upholds modest verdict for back injury and imposition of case evaluation sanctions

Richard Geerdes sued Deborah Jean Glupker for injuries he sustained when Glupker rear-ended  him at a red light.  The case was filed in 2002 and tried in the Kent County Circuit Court.  After that trial, there was an appeal in which the Court of Appeals confirmed that Geerdes had suffered a "serious impairment of a bodily function" as a matter of law.  He was suffering from radiculopathy as a result of a spinal injury. 

Court upholds sanction against estate trustee for misrepresenting values

AnnMarie Siwik was the trustee of her father's estate when she and her sister  became embroiled in a dispute over their inheritance.  Ultimately, they participated in a Case Evaluation that provided a formula for settlement.  Both siblings agreed to the Evaluation, however, Siwik did not make the payments required of her.  When  Trombly objected, Siwik claimed there was never enough money in the Estate to comply with the Case Evaluation, so she was powerless to comply.  The trial court ultimately ruled that Siwik and her attorney should pay sanctions of $30,000.00 for "filing inconsistent and inaacurate accounts, pleadings, and testimony...fraught with fabrication of facts, figures and distorted values."  The attorneys joined in Siwik's appeal, arguing that he simply relied upon  Siwik's information. 

Woman's suit alleging attorney's failure to confirm oral settlement promises is dismissed

Katherine Heys sued her attorneys, Butzel Long, P.C., after they allegely failed to achieve her goals in contesting her deceased grandfather's estate plans.    She alleged that undue influence had been exercised over her grandfather.  In  private negotiations with her father, Heys claimed that she had been promised one  million dollars, plus one-half of her father's inheritance, plus inclusion in the family foundation.  She alleged that she had instructed her attorneys to assure that these terms would be included in any proposed settlement and that they were negligent in failing to document anything beyond a $250,000.00 inheritance.  After her attorney signed the final [$250,000.00] settlement on her behalf at a court-ordered settlement conference, she filed a malpractice suit.

Case evaluation sanctions add insult to injury

James Parker sued "They Say Ribs" and others, including Payne Landscaping.  The case was sent to Case Evaluation, where three experienced attorneys recommended a settlement value of $200,000.00.  All of the Defendants agreed with this evaluation and would have agreed to entry of judgment.  Mr. Parker did not agree, however, and the case went forward.  The Landscaping company was dismissed by summary judgment and the jury ultimately entered a "no cause of action" verdict against Parker.  At that point, "They Say Ribs" asked for, and received, a judgment against Parker for $119,500.00 in attorney's fees and costs.

Slip and fall case dismissed for failure to sign medical authorizations; fully respond to interrogatories

Paul Wabeke sued Uncle Bob's Self Storage, claiming he was injured in a fall at the site.  The insurer for the property owner demanded medical authorizations from Wabeke and also sent him an extensive set of interrogatories.  Wabeke refused to sign broad medical authorizations which he deemed irrelevant to his injury claim and also answered some interrogatories with the statement that the questions asked were irrelevant.   The insurer's attorney sought sanctions, and ultimately the Court dismissed Wabeke's lawsuit for failing to comply with discovery.

Woman cannot establish oral contract to pay after signing written release

Jodi Newhouse sued James Sturrus, her former stepfather, alleging assault and other claims arising out of alleged sexual abuse beginning when she was 11.  She had sued Sturrus previously and her claim was resolved by payment of $15,000.00 and the execution of a Release.  She sued again, several years later, alleging that Sturrus had breached an oral contract to pay additional compensation, which she claimed he had partially fulfilled.  The Court relied upon the written Release to dismiss Newhouse's newer complaint, holding that her claims of an oral agreement were contradicted by the writing she had signed.

The ugly side of lawsuit loans

A number of companies advertise heavily on television, offering injury victims "lawsuit loans" that will help the victims survive financially until their claim reaches trial or settlement.  The companies don't advertise, however, the true cost of these loans.    Stroke victim Larry Long  was waiting for his confirmed settlement from the makers of Vioxx when he borrowed $9,450.00 from Oasis Finance to avoid eviction from his home:  18 months later when his $27,000.00 Vioxx payment was made, he owed $23,588 to Oasis--nearly the entire payment.  Under his agreement, even if the loan were paid back within six months, Long would have owed interest and fees of fifty percent of the loan balance, according to the New York Times.  Long's experience is typical.

Are frivolous lawsuits "clogging our courts?"

The State Court Administrator and the 13th Circuit Court (Antrim, Leelanau and Grand Traverse Counties) recently released their filing data for calendar year 2009.  According to the judges and staff, 3385 new cases were filed in the 13th Circuit in 2009.  2.9 percent of these cases alleged injuries caused by auto negligence.  1.7 percent alleged injuries caused by other forms of civil fault (that is, medical malpractice, products liability, premises liability, libel, slander, negligence, etc.).  More than twelve percent of the total cases were general (non-injury) civil disputes, 11 percent sought domestic PPOs, 5 percent sought non-domestic PPOs, 16.6 percent alleged juvenile delinquency, 10.8 percent were criminal cases and 20 percent were divorce cases.  Thus, by the court's numbers, about 100 persons in the three counties decided in 2009 to file suit over car wreck-injuries that they believed were "serious."  Sixty people sued for other injuries:  during the same period, about 650 people filed for divorce and more than  750 people were forced to attend to claims of delinquent or criminal conduct.

For the State of Michigan, the numbers were similar:  2.9 percent of total cases alleged auto negligence and 1.69 percent alleged "other civil damage" rights.  Divorce, paternity, criminal and juvenile delinquency claims far out-weighed all other actions in frequency.  General civil disputes over contracts and business matters constituted almost ten percent of the caseload in courts state-wide, also; a number that is not a surprising number given the state of Michigan's economy.

Court overturns restrictions imposed on insurance attorneys' right to talk privately to victim's treaters

Daivd Szpak and his wife sued Dr. Joy Inyang and Dr. Michael Falzon for malpractice in their treatment of the Szpaks' minor daughter Alexa.  The Defendants' attorneys demanded the right to interview Alexa's treating physicians, ex parte [meaning privately and without notice to the Szpak family].  The Szpak family asked the judge sitting on the Oakland County case to require that the insurance attorneys advise the family when they intended to interview the treating doctors and that their own attorneys be allowed to attend the meeting(s).  The judge agreed and entered a protective order with these additional requirements. 

Allstate's attempt to avoid paying PIP benefits is side-tracked

Penny Johnson sued Allstate after it rejected her claim for attendant care and replacement domestic services.  Johnson lived with her mother-in-law and was partially disabled before she suffered a back injury in a motor vehicle collision.  She presented evidence from her doctor that she required 2 to 3 hours of attendant care help and domestic services, daily, that she had not required before the collision, as a result of her injury.  She and her mother-in-law also confirmed the services provided, although they did not agree with regard to the material components of what the mother-in-law should be paid.

Plaintiff's case dismissed for failing to timely file answers to Interrogatories

In O'Kopski v. Fantuzzi, et al., the Court defined the minimum boundaries of what must be shown to dismiss a plaintiff's case for failing to provide discovery.  The Plaintiff failed to file answers to Interrogatories and Requests to Produce for several months.  The Defendants then filed a Motion to Compel and secured an order requiring that answers be filed within 14 days. The Plaintiff complied--well, sort of-- by filing partially responsive answers that were not signed under oath.  The trial judge dismissed her claim and the dismissal was upheld on appeal.

Plaintiff's case dismissed for failing to file witness list or attend pre-trial conference

Clarence King and his wife sued HSBC Bank, but for some reason, neither they nor their lawyer attended a scheduled pre-trial conference.  They also failed to file a witness list.  The Court's decision to dismiss their case as a sanction for non-compliance was upheld on appeal.

Parental immunity addressed by the Court of Appeals

Chadwick Vandonkelaar suffered a severe injury to one of his fingers at the Kid's Kourt day care program operated by Maryanne Barringer.  His mother brought a legal action against the day care owner and operatoron Chad's behalf.  The defendants admitted fault in allowing the child's injury.  After the parents provided the defendants with mandatory medical authorizations, the defendant's insurer's attorney met with the child's doctor privately.  The attorney filed an affidavit alleging that the doctor felt that the parents' failure to schedule physical therapy for the child significantly interfered with the child's recovery of complete hand function.  The defense attorney used this information to seek a dilatory amendment, adding the parents as "third-parties at fault," and thus reducing the damage obligation of the daycare.

Ex-girlfriend receives deck hand's life insurance rather than wife

James Williams died in 2009 with $280,000.00 of life insurance.  In 1995, he had filled out a beneficiary designation mis-identifying his then-girlfriend, Dorothy Williams, as his "wife" and providing for the benefits to be paid to her. He never married Williams.   One year later, however, he married Betty Williams and filled out a new form identifying his new bride as the beneficiary.  Although he printed his name at the bottom of the 1996 form, as required, and checked the box that he had signed the form in the presence of witnesses, he did not actually write his name in cursive on the form.  On the basis of this omission, one hundred percent of the proceeds of James' life insurance went to the Estate of his former girl-friend and nothing went to his wife of 13 years.  That outcome hardly qualifies as "justice" and cries out for some form of legislative, regulatory or judicial reevaluation.  The Sixth Circuit case is entitled Larry Bonner v. Metropolitan Life Insurance Company.

Court of Appeals refuses to hold IME physician accountable for negligence

Dawn Dubuc was a Ford Motor employee when she suffered orthopaedic injuries and a closed head injury in a motor vehicle collision.  About a year later she decided that she could not continue to work and began to draw disability.  After a number of months, Ford sent her to its Independent [huh--if you believe that, we've got some land in a Florida swamp to sell you...] Medical Examiner, Dr. Adel Ali El-Magrabi.  Dubuc's attorney accompained her to the examination solely to observe the "history" given to the doctor.  The Doctor felt that Dubuc was not answering cogently and terminated the IME.  In response, Ford discontinued her disability benefits and required her to report to work within five business days.  She sued Dubuc for defamation and tortious interference with her employment relationship.

Court rules expert's reconstruction must be weighed against other witness testimony

Joseph Bondarenok was struck by a car driven by Katherine Nussbaum.  Bondarenok was on a bike when he was hit, and apparently he was intoxicated.  He claimed he stopped and looked both ways before attempting to cross the highway.  Nussbaum claimed that she was doesn't believe she was speeding and that Bondarenok rode out in front of her with no warning.  A police office behind her also testified that Bondarenok appeared not to have stopped for traffic.  In opposition, Bondarenok offered reconstruction testimony from an engineer who calculated the length of Nussbaum's skid marks and concluded that she was speeding.  The expert also concluded that if she had been traveling at the speed limit, Nussbaum could have stopped without striking Bondarenok.  The trial court ruled that the engineer's testimony was speculation and granted summary disposition to Nussbaum.  On appeal, the Court of Appeals explained that the engineer's calculations were based on admissible evidence and therefore they were not "speculative or conclusory."  Therefore his testimony created a question of fact and the case should have gone before a jury to determine which evidence of causation was more credible.

Supreme Court repudiates lower court decision granting third-parties right to enforce boilerplate release language

For the past decade, the so-called "Engler Majority" of the Supreme Court had allowed to stand a 1999 decision of the Court of Appeals that proved a windfall for insurers.  The decision, entitled Romska v. Opper, had granted summary disposition to a wrong-doer's insurer because the accident victim had previously signed a Release document that contained "boiler-plate" [standard] language purporting to release "all other parties" who might be responsible for the victim's injuries.  Prior to the decision in Romska, such language was routinely included in Releases at the insistence of insurers, however, if an unwary victim signed the release, it could in some cases be amended to limit its operation to the parties' intent. 

In Estate of Shay v. Aldrich, et al., the Supreme Court finally confronted this issue.  In Shay, Allen Park and Melvindale police officers were sued after they allegedly beat Shay.   It was alleged that Melvindale officers originally responded to a car alarm at Shay's home, left the home, but then returned with Allen Park officers later the same day and assaulted Shay.

The case went to Case Evaluation, where minimal awards were entered against two of the [Allen Park] officers, but significant awards were entered against the Melvindale officers.  The Allen Park officers and Shay consented to the awards involving these officers and a Release was executed that limited the release and dismissal of Shay's claims to the Allen Park officers only, but also contained "boilerplate" language that purported to dismiss claims against "all other persons." 

Court upholds verdict for medical expenses only

John McMillan sued his landlord after he injured his shoulder while descending the basement stairs of his rented home.  The handrail allegedly gave way, causing McMillan to fall and injure his shoulder.  At trial, the jury awarded McMillan his medical expenses of approximately $4,000.00 but awarded him nothing for lost wages or pain and suffering.  McMillan appealed arguing that it was inconsistent and against the great weight of the evidence for the jury to award no damages beyond the medical expenses.  His attorneys also argued that the verdict reflected an anti-judicial or anti-plaintiff bias because post-verdict discussions with the all-white jury suggested the jurors were motivated by a distaste for the entire procedure, including the all-black cast of parties and witnesses.

Court of Appeals majority endorses so-called "apex deposition" rule in Toyota litigation

Judge Henry Saad wrote for two judges of a Court of Appeals panel, determining that Michigan should adopt the "apex deposition" rule.  This rule, normally applied only to governmental witnesses, protects the highest-ranking executives of an entity from discovery subpoenas in the absence of a show of personal knowledge regarding the issues being litigated.  The Estate of Guadalupe Alberto had attempted to depose two high-ranking Toyota executives in a sudden-acceleration, wrongful death lawsuit.  The two executives, Yoshimi Inaba  and Jim Lentz, had testified before Congress and made numerous public appearances for the company on the issue of sudden-acceleration, and the family's attorney argued that with their comprehensive knowledge of the problem, they were an appropriate place to begin discovery.

Woman's harassment claim is dismissed because she did not disclose it in bankruptcy

Judge McKeague authored an opinion for the Sixth Circuit, dismissing Betsy White's sexual harassment claim against Windham Vacation Ownership, Inc. and Fairfield Resorts.  He and a District Judge sitting by assignment ruled that White should be judicially estopped from suing for harassment because her claim was inconsistent with her bankruptcy pleadings.  McKeague reasoned that since the original bankruptcy  petition had not disclosed the existence of the harassment claim [as required under bankruptcy rules] it would be inconsistent for her now to claim harassment against her former employer. 

In a stinging dissent, Judge Clay pointed out that White's serious claim of improper sexual contact at work should remain viable and operate for the benefit of bankruptcy creditors and the bankruptcy estate.  He saw no viable basis in the law of equity for White's omission on the original bankruptcy petition to benefit the parties allegedly guilty of sexual harassment.

Supreme Court overturns Engler Majority standing decision

In one of the broadest rulings to come out of the Michigan Supreme Court since the defeat of the "sleeping judge," Cliff Taylor, changed the Court's composition, this week the Court overturned the limitations on "standing to sue" that the Engler Majority had imposed.  Most voters will recall that Taylor and his fellow Engler Majority Justices had incurred the wrath of environmentalists when they ruled that the words "any person" in Michigan's Environmental Protection Act did not actually allow "any person" to sue to protect the environment. The Engler Majority held that in order to sue over damage to a river watershed, for example, a potential litigant must show actual injury to property owned by the litigant within the watershed:  this decision (and other similar decisions) appeared to directly contradict both the language and the intent of the MEPA.  The Engler Majority applied a similarly restricted analysis of "standing to sue" in several other non-environmental situations.

Court rejects firefighter's immunity claim

John Cheek gave the Clinton Township Fire Department and firefighter Timothy Duncan permission to use the outside spigot at his Subway franchise as a source of water for a training exercise.  He explained that he had never used the spigot, but if they could figure out how to turn it on, they were welcome to use it.  Duncan turned it on but did not monitor it, even though he apparently knew that it was leaking and spraying water outside the rear [kitchen] entrance of the restaurant.

Negligent building design case dismissed for lack of expert testimony

Benjamin Tappen was staying at the Wyoming Hampton Inn for a family wedding when he slipped and fell on the tile directly in front of the elevator, suffering injury.  He alleged that the hotel was negligent in responding to water tracked from the pool across the tile foyer to the elevator, and that it had negligently designed the building. 

Plaintiff attorney did not protect the record; discovery deposition of Defendant's expert can be read into evidence by Defense

Jodi Weiss allegedly suffered injury when she slipped on "coping stone" adjacent to a pool under construction by Champion Pools, LLC.  The Defendants listed an expert toxicologist who offered the opinion that alcohol consumption by Weiss contributed to the fall.  Weiss took the Defendant's expert's deposition, but did not make a record of his intention to limit the use of the deposition to "discovery only." At trial, when the Defendants offered the deposition testimony into evidence against Weiss, Weiss's attorneys objected, arguing that the deposition represented their opportunity to learn the basis for the toxicologist's opinions and that it should not be admitted into evidence as it deprived Weiss of her opportunity to cross-examine the expert.  The trial court admitted the deposition, and ultimately the jury concluded that Champion was not negligent in causing Weiss's fall.

State Farm cannot dispute PIP benefits with provider, and subpoeana patient records, without notice to injury victims

State Farm filed a "complaint for discovery" against Broe Rehabilitation, seeking to force the company to turn over to it the medical records of State Farm insureds who had received treatment at Broe.  State Farm also sought to take the testimony of treatment providers under oath.  State Farm argued that under the No Fault Act, it was entitled to obtain these records to investigate fraud, and that it was not obligated to inform the involved patients or allow them to intervene to justify the care provided. 

The interaction of HIPAA and Michigan law governing ex parte interviews by defense counsel with a claimant's doctor

On July 13, the Michigan Supreme Court rejected a claim that federal HIPAA requirements completely precluded defense or insurance representatives from conducting ex parte (private) meetings with a victim-litigant's doctors.  The Court noted that a doctor is always free to refuse to cooperate with one party's attorney to the exclusion of the other, and that in this "informal," unregulated situation many doctors will do precisely that.  Nevertheless, it determined that the HIPAA law's requirements are consistent with existing Michigan law, and allow for ex parte interviews:

    1) so long as the health care provider "receives adequate assurance" that the party requesting the interview has either allowed the patient the "opportunity to agree or object" to the particular interview; or,

    2) in the alternative, so long as the party requesting the interview has made reasonable effort to secure a qualified protective order appropriately limiting further disclosure and requiring proper disposal of the information.

Victim's attorneys have long bridled at the existence of ex parte interviews because some unscrupulous interviewers use the opportunity to attempt to impart bias into the physician-patient relationship by offering a patient's doctors false or misleading information about the victim or his claim.  The dissenting Justices concluded that the risks associated with the procedure render it inconsistent with HIPAA privacy regulations and would require due process in the discovery of a victim-litigant's physician's opinions.

The decision was 5-2 in the matter entitled Holman v. Rasak.

Claim by woman who suffered back injury immediately after surgery will be decided by jury

Mary Lou Wilfong underwent spinal fusion surgery and a few months later she was rear-ended by a vehicle owned by Mickalich & Associates.  While no injury could be detected in x-rays, her doctor testified that the incident compromised her mobility, altered her gait and range of motion, and was confirmed by a positive leg-raising test.  Another of her doctors described her motor vehicle injury as "back pain with radicular symptoms." 

Supreme Court confirms long-standing rule: parents can't waive a child's injury claim before it occurs.

The so-called "common law" is the collection of judicial decisions starting with the English Courts before the American Declaration of Independence and continuing through today in any area of law not governed by statute.  In Michigan, that common law has long included the well-established principle that a parent cannot contract away a child's important rights.  The latter principle had been further defined to include the right to pursue a personal injury claim among the protected rights of the child.  This common law principle had also been recognized and reinforced in Court Rules and other public policy decisions protecting an injured child's interests and stipulating, for example, that a court , must approve any attempted waiver or compromise of a child's injury claim. This week a badly-divided Michigan Supreme Court reaffirmed these principles in Woodman v. Kera LLC, doing business as Bounce Party.