TOV Injury and Safety Blog

Tylenol and Advil to carry bolder liver-damage and gastrointestinal bleeding warnings

The FDA announced on April 29 that over-the-counter pain relievers such as Tylenol and Advil (known as NSAIDs, and including aspirin, ibuprofen, naproxen and ketophrofennlude, for example) will need to carry bolder packaging warnings because of the continuing injury resulting from over-use of the products.

Proper venue for "per se" defamation case is location of original publication

Marcus Yono and the Suttons Pointe Development, L.L.C., sued the Leelanau Enterprise, alleging that an article about their Suttons Bay "Bay View" project had damaged Yono's and the corporation's reputation and caused cancellation of condo purchase agreements signed by residents of Livingston County.  Relying on medical malpractice cases holding that venue is properly placed where the "actual injury" is suffered, they attempted to secure a trial of the claim in Livingston County.

Although all judges agree he is qualified, victim's doctor expert cannot testify

Marilyn and George Kiefer sued Dr. John Markley, a hand surgeon, claiming a botched surgery.    They relied upon an expert witness who split his time between hand surgery, "the closely related area" of reconstructive surgery of the extremities, and cosmetic surgery.  The expert was board certified and spent more than forty percent of his time in hand surgery, and all three judges of the Court of Appeals agreed that as a matter of fact, he was well-qualified to testify with regard to whether the Defendant complied with the operable standard of care.  Nevertheless, two of the judges agreed to strike him as a witness, contending that under a tort "reform" statute, he needed to dedicate more than fifty percent of his time to hand surgery in order to testify. 

The dissenting judge would not agree with this interpretation.  Under the law as it existed before the "Engler Majority" controlled the Michigan Supreme Court, it was up to Michigan judges to decide which witnesses were qualified to testify and what testimony would be allowed in court.  The Engler Majority allowed the insurance-oriented tort "reformers" to take away this judicial discretion by restrictive stipulations that are abitrary and in some cases irrelevant.  The net result of abdicating this responsibility is the promotion of decisions like this decision in  Kiefer v. Markley:  judges are precluded from basing their decisions on common sense and good judgment.

Bus driver who made gun threat cannot sue after termination

A Madison Heights school bus driver was involved in a "contentious" running dispute with another driver over scheduling.  At a meeting set by administrators and union reps to attempt to resolve the dispute, the bus driver packed her things and left prematurely, stating she'd take the matter up with the Superintendent and "...bring her gun."  She met with authorities investigating the matter several times, but on advice of counsel she refused to discuss the matter.  She was then terminated and sued the  school and the union for inadequate representation.  The trial court and Court of Appeals dismissed her claim.  Some careless statements are just too inflammatory:  making jokes about a gun at school or at work has become sort of like making bomb jokes in an airport. 

State Farm appeal of PIP benefits denied

In Greene v. State Farm, the defendant refused to pay contracted PIP benefits after the plaintiff suffered an alleged head injury in her fifth motor vehicle collision in four years.  The jury awarded her benefits after a hotly-disputed trial, despite testimony from State Farm's hired-gun IME doctor.  The Court of Appeals upheld the jury's decision, even though the injury victim's attorney inappropriately called on the jurors to take into account the Defendant's size and wealth in reaching a verdict. 

"Contractual immunity" strikes again

William Lenz tripped over a bag of clean linens that a Valley City Linen employee had left at the manager's door in the Baja Fresh restaurant.  Lenz claimed he did not see the dark bag on the floor as he walked to the restroom.  He has vision problems and a "drop-foot."  He apparently suffered serious injuries.  A patron confirmed that Lenz apparently fell on the dark bag which was indistinguishable on the black tile floor.

The Court dismissed Lenz's claim against the restaurant, finding that the bag of linens had not been present long enough (only 20 minutes) for the Baja Fresh restaurant to detect a hazard to customers.  The Court also held that even if the Valley City Linen employee was negligent in depositing the bag of linens where he did, he could not be held responsible because he was acting under a contract with the restaurant:  according to a recent decision by the Engler Majority of the Michigan Supreme Court, taking on a contractual duty to act eliminates the party's duty to act reasonably towards all other persons.

In any of the other 49 states, there would be no disagreement that the Valley City employee owed a duty to act reasonably in all of his actions.  He can't park his truck on the road where it posed an unreasonable risk; he can't throw his deliveries out the window on his way by, hoping they don't strike anyone.  It is an absurd distortion of the common law to suggest that the Valley City contract with the restaurant immunizes it from owing any duty to innocent third-parties.  Unfortunately, it is the law in Michigan unless and until a new majority of the Michigan Supreme Court overturns this activist product of aggressive pro-insurance jurists.

Court summarily dismisses two bars implicated in multiple fatality

Andrew Gillespie apparently got drunk, despite taking anti-anxiety medication that "multiplies" the effect of alcohol, and crossed the centerline on Hagadorn Road in Lansing.  He caused a wreck that killed two and injured four.   He pleaded guilty to second degree murder in the criminal case that arose out of the collision; the civil case implicated three different potential purveyors of alcohol, Bennigan's, Mason Jar Pub and Quality Dairy Company.  The majority of the Court of Appeals panel considering the case, reversed the decision of the trial court and dismissed the claims against the first two defendants.

More litigation regarding poison gas in the Holiday Inn pool

Last month the Court of Appeals held that the Holiday Inn Express in Ludington had insurance coverage for a substantial injury verdict rendered against it.  This month, the court set aside the verdict in Bronkema v. Ferwerda Enterprises, Inc.  The case arose when a maintenance man, hurrying with repairs so that he could return to jail after work release, did not successfully accomplish his repairs and allowed poison gas to injure the Bronkema family.  The trial judge had directed a verdict in favor of the family on the issue of Holiday Inn negligence, but the judge threw out the case against the pool component manufacturer, whom the Holiday claimed failed to adequately inform it about proper safety measures. 

Prisoner cannot collect damages for violation of "Religious Land Use and Institutionalized Persons Act"

In Cardinal v. Metrish, it was essentially admitted that the Michigan Department of Corrections violated the RLUIPA by denying Cardinal proper meals.  He filed suit against the warden in charge.  The Court rejected his claim, finding that the statute mandating the proper treatment of religion in  state institutions did not adequately express the state's willingness to waive sovereign immunity rights against a money judgment.  Cardinal, and people like him whose religious beliefs were not legally observed, could object to the violation but could not enforce the RLUIPA by collecting a money judgment.

Harleysville/Lake States can't take "second bite at the apple"

Keith Kangas was badly hurt on US-23 when another driver struck a truck tire in the road, lost control and struck Kangas' car.  Kangas had purchased Uninsured Motorist Coverage from Lake States and raised a claim under the policy for the [unidentifiable--and therefore "uninsured"] truck tire owner.  Harleysville/Lake States proceeded to arbitration, but when the arbitrators awarded the remainder of its $500,000.00 policy to Kangas, after credit for the payments by the insurers of the young woman who lost control, Harleysville attempted to overturn the award in Circuit Court.   

Court of Appeals addresses "notice" requirements in medical malpractice

Kelly Sue Rousseau died of a pulmonary embolus.  Her family argued that the young woman should have been prescribed medication to prevent a pulmonary embolus, that the doctor erred in prescribing her a birth control pill that made her more susceptible to an embolus, and that the nurses caring for her did not adequately monitor her condition.  All of the health care providers sought summary disposition, complaining about the alleged lack of specificity in Rousseau's family's Notice of Intent (NOI).

Malpractice death case dismissed as filed too late

In Lawson v. Spectrum Health, et al., the family of a woman who died after cardiac catheterizaion filed suit against the hospital and cardiologist.  The woman died in February of 2005, but her family did not appoint a Personal Representative of the Estate until April of that year.  They then filed a Notice of Intent  (NOI) in March of 2007, and filed suit in October of 2007.  The Court pointed out that Lawson needed to file suit within two years of the alleged malpractice (by February of 2007) or within two years of the date of appointing a P.R. (April of 2007).  The Michigan Supreme Court had previously ruled that filing the NOI within the two-year period after appointment of the P.R. did not extend the statute of limitations in a death case:  the NOI and waiting period requirements must be fulfilled within the two-year "saving period".

Malpractive claim arising from delayed appointment rejected

Susan Smith suffered a brain hemorrhage while vacationing in Mexico.  Physicians in Cancun performed emergency surgery to relieve the pressure on Susan's brain, and after several days, she was released to fly home.  She saw her own doctors, the Oakwood Healthcare Center, Doctors Alexandria Simpson and Curtis Simmons  within days, and they claimed to have referred her to the Michigan Brain and Spine Institute "ASAP".  A witness from the Institute denied that claim, however, alleging that Simmons only wanted Smith to be seen "within one or two weeks" for a postop appointment. 

Henry Saad, insurer's judge, strikes again

When Governor Engler appointed Henry Saad to the Court of Appeals he knew what he was getting.  And Judge Saad has delivered.  He is an assured vote for the insurance company no matter the circumstances or the legal question. He confirmed that position again recently, voting to dismiss the claim of a Save-a-Lot patron who allegedly fell on black ice in the parking lot.  Shirley Powell claimed she never saw, and couldn't see the ice until after she was on the ground, so it couldn't be "open and obvious." The Court disagreed.

Statute of limitations when there is a "continuing wrong"

One of the least discussed errors of recent Michigan jurisdprudence has been a deliberate confusion and rejection of the concept of a "continuing wrong".  Whether the claim is for a trespass on someone else's property, or  for a professional's continuing malpractice, there are occasions when an error occurs not just on the first day of the wrong--but also on subsequent days.  The so-called Engler Majority turned Michigan jurisprudence on its ear in the 2005 Garg case by deciding that the statute of limitations begins to run the day the first of these continuing errors is made:  a patient litigant who did not run to the courthouse steps is punished for his attempt to resolve matters without suit.

Woman who claims assault by doctor must plead medical malpractice

In Steele v. St. Lawrence Hospital, et al., the plaintiff claimed that after she sought voluntary admission to the defendant's psychiatric unit, she was abused by a male physician, Ralph Michael Kelly, M.D.  Kelly, an Internal Medicine specialist, was consulted after Steele's admission because her doctor was concerned about high blood pressure.  Kelly could not remember the exam but testified it is his practice to perform a complete physical, including a breast examination, on all patients.  Steele claimed she did not want a breast exam, that her own doctor had performed one the month before, and that Steele's exam, when performed was "strange".  She also complained that no other woman was in the room during the exam.

Saad allows Farm Bureau to avoid payout again

Henry Saad was Governor Engler's hand-picked shill for the insurance industry.  Farm Bureau is the Michigan insurer most eager to exploit litigation to avoid fiduciary responsibilities.  They patted each other on the back again this week, when Saad's panel of the Court of Appeals denied life insurance to a widow.

Court orders Farm Bureau to pay PIP benefits in domicile dispute

 Farm Bureau has become one of the more contentious and aggressive insurers in attempting to use litigation to avoid contractual obligations.  Its bid to avoid paying the medical expenses associated with a young girl's head injury back-fired, however, this week.  In Phillip v. State Farm Mutual and Farm Bureau General Insurance, the trial court and a unanimous panel of the Court of Appeals held Farm Bureau owed benefits to the child.

Court refuses to second-guess jury's resolution of credibility of witnesses

John Morrison was injured when he drove into a road construction excavation which he maintained was unmarked.  He and a companion who was following him in another vehicle claimed that there were no barricades or warnings at the site of the excavation.  The contractor responsible for erecting barricades and warnings, John Carlo, Inc., presented testimony from its own employees and from MDOT engineers, attesting to the fact that proper barricades and warnings were erected and in place every 25 feet.  Each party also presented circumstantial evidence to impeach the other party's witnesses. 

Electrician cannot sue employer for intentionally-caused injury

The Michigan Legislature adopted a statute that defines the rare situations where an employee can sue his employer for injuries suffered at work.  Normally, the employee is limited to the benefits provided by the workers compensation scheme (that is statutory medical  or funeral/burial payments, partial wage loss and very limited attendant care).  The legislature did hold open the potential for an employee to sue his employer for injuries if they are the result of intentional misconduct.  It also defined "intentional" misconduct in a manner that allows a jury to infer the employer's intent.  That statutory definition was at the heart of a disagreement by the Court of Appeals judges who decided the Allard v. Detroit Edison case.

Doctor's opinion that chemical exposure caused loss of smell is admissible

When a Lowe's employee opened the packaging on some pool chemicals, one bottle was punctured, but still placed on a retail shelf.  David Best suffered a chemical burn on his face and hands when he pulled the bottle off the shelf to examine it.  Soon after, he lost his sense of smell completely.  His doctor confirmed that he suffered from "permanent anosmia" and by means of differential diagnosis the doctor excluded other possible causes of the loss.  Lowes persuaded the trial judge to dismiss Best's case, however, by persuading the judge that the doctor's expert opinion was unduly "speculative".

Verdict against doctor who delayed surgery is upheld

Myriam Velez obtained a verdict against Dr. Martin Tuma after he inexplicably delayed surgery to alleviate a blood clot in her leg.  Velez presented expert testimony that Tuma should have operated immediately upon determining the cause of Velez's complaints, and that she lost her leg because of his unjustified 36-hour delay.  Tuma's insurer presented all manner of procedural and technical obstacles and objections to the lawsuit and eventual judgment, and after eight years of litigation, the Court of Appeals rejected each and every one.

Previously disabled injury victim can maintain "serious impairment" claim from second injury

Michigan no fault insurers have enjoyed a field day, summarily dismissing significant injury claims because they occurred to people who had already suffered a different, relatively serious injury.  This trend has been reversed somewhat, and the Tipton v. Lang decision helps to illustrate why.  The three Court of Appeals judges in Tipton unanimously pointed to prior decisions recognizing the relative importance of particular activities and bodily functions, where a broad range of activity or function has previously been lost.

Coast Independent Review Board suspends drug studies

After approving a scam drug trial (that its competitors rejected) in a government sting operation, Coast agreed on April 15 to suspend its operations. The Company's CEO, one pompous and bombastic Dan Dueber, initially complained to Congress that his company had been defrauded by the FDA; now he says "Coast IRB is changing everything... revamping every aspect of the Company."  In other words, creating a company to do the work it had been paid to do for the past five years:  investigators told Congress the company had earned $9.3 million dollars in 2008, and approved 355 of 356 study proposals it had reviewed in the past five years (including the one make-believe proposal that finally got it in trouble). 

Sounds like someone was pocketing too much of that multimillion dollar income and not spending it on real investigation.  Hopefully we've seen the last of Dueber and his company.  Its incredible to think that our drug safety is dependent on a regulatory scheme that relies upon operations like this.

Depakote, taken for epilepsy and migraine headache, injures fetal IQ

The New England Journal of Medicine published a study this month documenting the fact that children born to women who took Depakote (valproate) scored lower on IQ tests administered at age three.  The children scored 9 points lower than children of women taking other antiseizure medications.  Only about one-half of the women taking Depakote suffer from epilepsy.  The five-year study followed 300 pregnant women and 258 children, including 53 who took Depakote.  IQ correlated closely with mothers' IQs, except among moms taking Depakote.  The mean IQ of children taking other anti-seizure meds was almost 101, but only 92 for children whose mothers took valproate.  Doctors confirmed that Depakote should never be the first drug of choice for a pregnant mother.

U of M study: more intense treatment for bladder cancer doesn't help

Large recent studies have documented the fact that more intense therapy does not appear to improve survival rates for prostate cancer.  Studies of breast cancer have also documented the fact that early diagnosis and intense therapy are of no value to some patients.  Now a study published by the University of Michigan Health System appears to document similar truths regarding bladder cancer. 

Contractor's insurance claim denied, except for estoppel

Demolition Contractors, Inc.  (DCI) experienced difficulty with the concrete gravel it used in rebuilding a subdivision's roads and had to spend more than $200,000.00 to re-do its work.  It made a claim against its insurer, Westchester Surplus Lines, for covered property damage.  Westchester denied payment and Demolition Contractors sued.  The parties agree there was coverage for the claim, however, Westchester argued that in making "voluntary payments" to remediate the road, Demolition Contractors had released Westchester from its contract obligation.

Nurse practitioners, though demonstrating likely discrimination, cannot pursue class action

In Halabicky, et al. v. University of Michigan, a group of female nurse practitioners  (NPs) sought class action status for their claim that they were victims of gender discrimination under the Elliott-Larson Civil Rights Act.  The nurse practitioners alleged that they performed essentially the same job as (predominantly male) physician assistants (PAs), but for substantially less pay.  The federal trial judge felt compelled to deny them class action status, even though he felt that they had presented facts that strongly implied discrimination. 

The judge noted that while the nurse practitioners were a bargaining unit within the University system and constituted a reasonable "class" in terms of homogenous treatment, they were being compared with physician assistants who were retained, compensated and "defined" on an individual basis within various departments of the University system.  Given that NPs and PAs are "entirely different medical certifications,"  and that PA jobs are defined and compensated on a departmental basis, the NPs could not prove discrimination affected their entire class in a similar manner:  each NP would have to prove discrimination separately by a comparison with PAs within her department.

The Court noted that NPs were compensated on a bargained step basis, with the 2008 steps ranging from $72,000.00 to $88,000.00.  They remain eligible for overtime pay, with these figures translating into pay for three of the Plaintiffs in the range of $106,000.00 to $116,000.00.  PAs, on the other hand, are compensated in accordance with various Department's budgets and needs on a market basis.  In non-Human Resource terms, this translates to "lucrative practices pay PAs better than less lucrative Departments," with the 2007 base salary figures ranging from $67,000.00 to $130,000.00.

The Court acknowledged that each of the female NPs had identified male PAs within their respective departments, who earned signicantly more than the NPs, although performing similar or identical duties.  The Court also confirmed that the NPs had presented expert analysis of salary figures that documented an annual salary difference of $8-10,000.00 between male and female workers performing similar duties, even when taking into account years of service, education and years in title.  The expert calculated that the odds of the gender difference identified occurring by chance alone was about "one in a million".

Despite these statistical differences, which he felt suggested evidence of gender discrimination, the federal judge concluded that the female plaintiffs could not meet the established standards for treating all University Health System NPs as a single class:  there were simply too many variables between the women's employment circumstances to qualify them all for unified analysis under class action court rules. 

No automatic immunity for "arrest by vehicular crush"

Brian Bradford, by the Court's opinion, is a sort of hapless individual who lived hand-to-mouth and struggled with addictions.  City of Ferndale police attempted to arrest him after a LIEN check identified the vehicle he was driving as stolen.  Bradford got out of the truck and ran, but was apprehended when two officers trapped him between the bumpers of their respective police vehicles.  
Bradford suffered permanent, severe injuries to his leg as a result of an open femur fracture.   He sued the officers driving the two vehicles for "gross negligence" and they sought summary disposition of his claim. 

Court rejects malpractice claim arising from suicide

Carol Teal sued three doctors and a hospital, claiming that their premature dismissal of her husband led to his suicide.  Teal's husband was admitted to Herrick Memorial Hospital after a suicide attempt, and discharged 3 days later, after being placed back on anti-depressants and denying suicidal ideation.  He killed himself 8 days after being discharged.  The Court dismissed Teal's claim summarily, even though she presented the testimony of an expert psychiatrist who offered the opinion that Teal's treatment after the first attempt fell below the standard of care. 

Experts agree on the need to overhaul regulation of US food supply

Roughly 76 million Americans suffer foodborne illnesses each year, 300,000 are hospitalize, and 5,000 die, according to the Centers for Disease Control.  Most likely victims are children under four and adults over the age of 50. 

Complications of being "overcome by the spirit of the Lord"

Judith Dadd answered an "altar call" made by the pastor of her Eaton County Mount Hope Church during a leadership rally.  She was "overcome by the spirit of the Lord", fainted, and fell backwards striking her head.  She had apparently been overcome in this manner "over 100 times" during her membership in the church.  The pastor invited members of the congregation to make these altar calls and assured them that if they were "slain in the spirit" and collapsed, ushers were trained to catch them. 

When the church informed Dadd that it would not pay more than $5,000.00 in medical expenses, she filed suit, claiming a head injury and arguing that the Church should have fulfilled the pastor's promise to protect "overcome" parishioners.  Her pastor responded by suggesting she was faking and might be trying to commit insurance fraud (apparently he felt the spirit of the Lord had left her just as abruptly as it had overcome her). 

Insurance study warns about small-car danger

The Insurance Institute for Highway Safety reported this week that the Honda Fit, Toyota Yaris and the Smart Fortwo, three very small new vehicles touted for their light environmental impact, performed poorly in crash safety testing.  In testing that simulated head-on collisions with mid-size vehicles, with each model traveling at 40 miles per hour, the three minimodels suffered a disproportionate deceleration (and likely greater injuries to the occupants).  While the heavier vehicle changed speed by 27 mph on impact, the minimodels decelerated by 53 mph [essentially being driven backward at 13 mph immediately upon impact]; they were far more likely to be sent airborne and spun.

Where can a fired employee file suit for discrimination?

Sometimes where a suit is filed is as important as the evidence presented.  A discrimination claim, for example, will find a more sympathetic ear among jurors who tend to sympathize with victims of discrimination.  And conventional wisdom says white jurors more easily identify with white litigants while black jurors more readily identify with black litigants.  Fifth Third Bank recognized that; and after two black Wayne County employees were fired and filed suit in Wayne County where they were fired, Fifth Third sought to move their cases from Wayne County to Oakland County "where the decision to terminate the employees was made in the regional office."  The trial judges refused to transfer venue, but a two-judge majority of the Court of Appeals obliged on appeal.

Can AutoOwners dodge responsibility for injuries at Ludington Motel?

The Bronkema family was injured by chlorine gas while staying at the Holiday Inn Express in Ludington.  No one denied the family's injuries, and AutoOwners initially paid more than $10,000.00 in medical expenses incurred by the family.  When the incident turned out to be more significant than anticipated, however, AutoOwners denied responsibility and stopped paying, citing the "pollution" exception in the coverage it wrote for the motel.  The trial judge rejected AutoOwners' pollution argument and awarded the motel and the Bronkemas more than $500,000.00 in damages, fees and costs.

State Farm forced to pay more than $200,000.00 in overdue rehabilitation benefits

State Farm refused to pay Community Resource Consultants, Inc., of Macomb County, for rehabilitation benefits that CRC provided to 15 different no fault insureds.  CRC attempted to work matters out with State Farm, apparently, and did not sue for over a year.  Eventually, it secured a verdict for more than $200,000.00,  plus another $200,000.00 in fees, costs and sanctions, after which State Farm's attorneys asked the court to reduce the verdict to eliminate all PIP benefits that were more than one year old when CRC filed suit. 

The trial court concluded that it was bound by the Engler Majority's re-interpretation of the no fault statute limiting PIP benefits to "one year back" from the date suit is filed.  On that basis, it overturned the $400,000.00 judgment it had previously entered, and signed a judgment in State Farm's favor, essentially wiping out the jury verdict.  The Court of Appeals noted that the "one year back rule" is an affirmative defense which State Farm was obligated to raise prior to trial.  On that basis it reinstituted the jury's verdict including the substantial fees, interest and costs.  Apparently, if you want to live by a technicality, you can expect to die by one, as well.

No PIP benefits for man killed when machine falls from tractor trailer

Gwendolyn Neill sued MEEMIC and Progressive Michigan Insurance Company after her husband was crushed under a machine that fell from a tractor trailer.  Neill's husband was unloading the machine from a parked trailer in the course of his employment, and the Court denied the widow benefits after finding that the tractor trailer was not "parked in such a way as to cause unreasonable risk of the bodily injury which occurred." 

Doctors and their insurers awarded $20,000.00 in sanctions

Julia Peterson brought suit against David Fertel, D.O., and John R. Schairer, D.O., alleging that they were negligent in diagnosing and treating her deceased husband.  A Case Evaluation panel agreed and recommended an award against the doctors, which Dr. Schairer accepted, but Fertel and the Peterson Estate rejected. 

Court emphasizes rejection of "continuing trespass" theory

The Frolings bought a vacant lot in Bloomfield and build a new home.  Thanks to inadequate storm sewers, irrigation at the local country club, neighbors re-shaping the topography and pre-existing drainage, their basement became the collecting spot for a subdivision's surface drainage.  They sued the City, the neighbors, the Country Club and a handful of others, but ultimately left the trial court owing their neighbors more than a quarter million dollars in sanction fees and costs.  On appeal, the higher court left them without recourse for flooding damage, but did reverse the sanction fee and cost decision.

Insurance agents held accountable for arranging illusory health coverage for employees

This week the Court of Appeals upheld a $1.2 million dollar verdict against Joseph Saigh and Lawrence Wells.  The jury had concluded that Saigh and Wells had allowed their employee to sell illusory coverage, provided by an unlicensed insurer, through negligent or intentional misrepresentations.  The Court rejected the defendants claims that they were not responsible for the representations made by their employee and also  rejected arguments that they owed no duty to the employer, even though they were retained expressly  because they claimed to be "specialists in health insurance coverage." 

The Court also allowed the corporate employer to collect exemplary damages from the defendants, based on the injury the company suffered to its good name.  The court noted that as a result of the illusory coverage the Defendants arranged and facilitated, the corporate employer suffered loss of good employees, hundreds of complaints from employees and health care providers, and a loss of reputation.  The case is Unibar Maintenance Services, Inc. v. Joseph Saigh and Lawrence Wells.

Car accident claim without a lawyer? Read this.

None of us like the ads some lawyers run on TV, seeking clients with personal injury claims.  The alternative, though, can be catastrophic.  Here is one example, taken from the Michigan Court of Appeals in April of 2009:  The case is Tammy Johnson, Guardian of Nancy Eastman v. Wausau Insurance Company and Nationwide Indemnity, Inc.

In 1983, Nancy Eastman suffered profound brain injury at ten months old in a car accident.  Under Michigan law, she was entitled to full lifetime medical benefits, including hourly attendant care, as needed.  It is undisputed that the brain injured child required 24 hour care.  Her parents could not provide that care when she came home from the hospital, so Dorothy Bencheck assumed her care and ultimately became her guardian.  Bencheck was paid $20.00 per day by Wausau/Nationwide to care for Nancy.  She repeatedly asked if she was entitled to any other financial support and was told by the adjuster, one Albert Abdey, that she was not entitled to anything else.

School board member's slander claim survives motion to dismiss

Julia Harvey sued fellow  Oak Park School Board member Alicia Jones, after Jones embarked on a campaign of criticism relating to Harvey's alleged mis-use of her position.  Among other claims, Jones alleged Harvey had improperly secured special hiring privileges for her husband, obtained special education privileges for her daughter and engaged in other illegal, unethical or unprofessional conduct.  Jones made these claims in Board Meetings, on a Detroit Free Press website and in a recall petition.   She defended the claim by alleging immunity based upon her school board responsibilities and privileges, and sought summary disposition of Harvey's defamation suit.

Obama administration suggests it will be tougher on food safety

The immense pistachio recall, falling hard on the heels of the peanut paste poisonings, signaled to food companies that the Obama administration will act more aggressively to protect consumers than its predecessor did.  We'll have to wait and see if the federal government is able to dedicate adequate resources to the problem, however, as efforts to shrink the government continue and our food production increasingly moves overseas or under the control of bottom line cost-cutters such as WalMart. 

Removal of "recalled" heart defibrillator cables presents difficult choice for pateints and families

In 2007, Medtronic recalled its Sprint Fidelis heart defibrillator cable because its thin wires were prone to fracture and had caused at least five patient deaths.  The cable was approved by the FDA without adequate research. Now, the cables have been surgically placed in the bodies of more than 150,000 patients, who are faced with a Hobson's choice of undergoing dangerous surgery to remove them, or leaving them intact and praying that they continue to function properly.

Sixth Circuit reinstates death claim against Providence Hospital

The family of Marie Irons sued Providence Hospital after it failed to admit Irons' estranged husband to a psychiatric unit.  A phyisican who examined the husband in the Providence E.R. had recommended admission, but apparently a second doctor counter-manded the order and the husband was discharged.  Ten days later, he murdered Irons with an axe.  The case had been dismissed in 2007 by the trial court after the St. John Health System, which runs Providence, contested the Estate's standing to sue and the application of the Emergency Medical Treatment and Active Labor law.  The appellate judges of the Sixth Circuit concluded that the lower court was in error in deciding factual questions that should have been considered by the jury.

Ford Motor wins Family Medical Leave Act dispute

In Carter v. Ford Motor Company, the Sixth Circuit upheld Ford's discharge of the plaintiff, despite her claims of violation of the FMLA.  The Court noted that Carter had not complied with the company's procedural requirements for extending her leave, and that her attempt to return to work on a probationary basis "did not go smoothly". 

Successor Personal Representative of Estate can file suit after limitations period has run on initial P.R.

In McGill-Kohler v. Hasan and North Oakland Medical Center, the Court of Appeals reaffirmed the right of a successor Personal Representative to file a wrongful death claim, if the claim is filed within two years of the successor's appointment by the Probate Court.  The trial court had dismissed the claim, measuring the two-year statute of limitations from the date letters of authority were issued to the original P.R.  The case had been dismissed once before, without prejudice, when the initial P.R. failed to file suit within two years of her appointment.  The Estate's attorneys took advantage of the wrongful death savings provision to secure a new limitations period by appointing a new P.R.

Woman not an "owner" of vehicle borrowed from live-in companion

Detroit Medical Center provided signficant medical care to Maria Jiminez after she was injured in a motor vehicle collision.  Titan Insurance Company was assigned by the State to cover Jiminez's PIP benefits because she was an uninsured occupant [the driver] of an uninsured motor vehicle.  Titan refused to pay her medical bills, claiming that Jiminez was exempted from receiving PIP benefits as the "owner or registrant" operating an uninsured car.  The Court concluded that DMC was entitled to be paid after examining the circumstances of Jiminez' use of the vehicle.

Court upholds jury verdict of "serious impairment"

Glenn Forgette suffered injuries to his right wrist, left shoulder and lower back as a result of Gail Jones' negligent operation of her husband's business-owned car.  Forgette's injuries included a torn rotator cuff, a fractured wrist and probable fractures in the lower back.  The insurer appealed, claiming that even though these injuries severely curtailed Forgette's lifestyle, they did not constitute a "serious impairment of bodily function."  The unanimous Court of Appeals rejected the insurer's arguments, noting that while many of Forgette's activities were restricted by pain and not by explicit physician instructions, the limitations were based upon physician-identified physiological explanations and "tru[e] suffering".

Court interprets release signed by uninsured motorcyle operator

Mark Sindler was injured while operating a motorcycle he owned but had not insured.  He collected damages from Farmers Insurance, which provided liability insurance on the at-fault car driver, but insisted on language in the release that preserved his right to collect PIP benefits (wages, replacement domestic service expenses and medical).  After paying these benefits for more than a decade, Farmers notified Sindler it would no longer pay PIP benfits because Sindler was operating his own, uninsured bike at the time of the injury.  He sued to enforce his right to PIP benefits and Farmers sued to collect from him the medical it had paid.