TOV Injury and Safety Blog

Court dismisses claim arising out of fall on freshly-mopped floor

Jacqueline Maness sued the Carlton Pharmacy and a company hired to mop its floors, alleging that she hadn't been adequately warned of the slippery, wet floor on which she fell, suffering serious injury.  Initially, her claim was dismissed on appeal, after the defendants claimed that the trial court should have found the condition of the floor to be an "open and obvious" danger.  The Supreme Court reversed, however, noting that Maness' claim against the cleaning company, which was not in possession of the drugstore premises, could not be evaluated under the "open and obvious" doctrine, since that doctrine applies only to hazards maintained by a landowner/possessor.  The claim against the cleaning agency was sent back to the trial court to be evaluated on the basis of negligence and comparative fault.

Woman can sue dealership for failing to identify needed repairs

In a complicated case, Ruth Webb's car shuddered and vibrated after it was repaired following a minor collision.  She complained repeatedly to Progressive Insurance and Adrian Dodge, the entity that was paid to fix the front end.  Adrian Dodge claimed it couldn't find anything else wrong and Progressive claimed that any additional problems with the car related to normal "wear and tear."  Webb had the vehicle examined by other mechanics who confirmed collision damage, but when she sued Adrian Dodge in Small Claims to compel it to complete the repairs, the magistrate ruled against her. 

A few weeks later, she lost control of the car when it began vibrating and Webb was badly hurt in a collision. A mechanic who examined the vehicle found damage in the left tie rod socket and steering knuckle that he felt was related to the original collision and the vibration problem--and which he believed caused the second collision.

Stryker Corporation, in Kalamazoo, indicted for fraud in illegal sales and promotion of bone-growth product

Yesterday, a grand jury indicted the Kalamazoo medical product company and its CEO from 2004 through 2008, for fraud.  The defendants are accused of promoting the use of its bone growth "OP-1 putty" [called Calstrux] and OP-1 implant for uses not approved by the FDA.  Use of the mixture caused "serious medical problems" for some patients, according to the federal prosecutor.  The product was originally approved under a "humanitarian device exception" to treat a condition affecting fewer than 4,000 patients.

Attorney must pay child's injury settlement after releasing funds to parent without restrictive endorsement

In the matter of The Estate of Calvin Graves, the Court of Appeals recently ruled that a child's attorney must pay the child's Estate the money that the attorney mistakenly turned over to the child's father.  The father was the child's Conservator, however, after an injury settlement was achieved, the attorney issued the child's check to the father without making it payable to him as Conservator for Calvin.  As a result, he was able to (and did) cash the check and spend it.  When he could not fulfill his duty to pay the money over to the Estate, the Probate Court required the attorney to come up with the money.  On appeal, the Court of Appeals rejected the attorney's claims arguing lack of subject matter jurisdiction and that he could not be sued by the Court for "malpractice."  The higher court pointed out that his client was the boy's Estate, and it was entitled to hold him responsible for his failure to act with due care.

One million window blinds are recalled

IKEA, Bed Bath & Beyond and Hanover Direct recalled almost a million roller blinds and Roman shades because they pose a serious stangulation risk to small children.  The AP reported on October 27 that the recall includes a half million ISDANS, TUPPLUR and ENJE roller blinds made in Taiwan and France and sold by IKEA between 2005 and 2009, as well as nearly 400,000 blinds made in CHina by Dublin Energy Solution, and 90,000 Chinese-made faux suede shades sold by Domestications.  IKEA had recalled blinds in August of this year, as well.  The recalls followed one death and three entanglement reports.  Merely recalling defective products is not a safe solution, however.  Sadly, statistics show that fewer than twenty percent of recalled items will actually be returned, repaired, or taken out of the stream of commerce.

Supreme Court repudiates hyper-technical examination of malpractice notice of intent

Malpractice victims are required to file a detailed "Notice of Intent" six months prior to suing a health care provider in Michigan.  When the victim's suit is filed, it must be accompanied by Affidavits of Merit signed by appropriately specialized physicians or experts.  For the past eight years, the medical profession enjoyed a field day before the "Engler Majority" of the Michigan Supreme Court, consistently dismissing viable, meritorious claims based on alleged technical deficiencies in the Affidavits or Notices.  

Applying the Engler Majority standard, lower courts felt compelled to dismiss claims for all manner of minor procedural deficiencies, and the reported malpractice cases became an incantation of dismissals that never reached the substance of victim claims.  That practice changed this summer when the Supreme Court adopted a more reasonable stance, consistent with statutes and rules of pleading, allowing amendment of good faith notices and affidavits to cure minor defects.  This week, the Supreme Court sent three more cases back to the lower courts, rejecting technical dismissals.

Minority owner vindicated after partners steal business

William Junge created a business with James Bartles and Oscar Burrell, with each man being a one-third owner.  They were stunned when they did more than a million dollars worth of business in the first year, moving and installing equipment.  Apparently, the business was destroyed by its success, as disputes arose over use of credit cards, withdrawal of profits and job performance.  Ultimately, Bartles and Burrell opened a new, competing business using the same employees and serving the same customers, but without Junge as an owner.  He sued, alleging an equitable claim of ownership in the new company.  While he was denied treble damages or attorney fees, the Court of Appeals upheld the lower court's award of one-third of the book value of the new business. 

Husband is not an "owner" of wife's uninsured vehicle where there is no evidence of 30 days' use

Kevin Zoerman was injured while driving his wife's uninsured car.  Titan Insurance was assigned to pay his Personal Injury Protection (PIP) medical expenses, but declined to pay, arguing that Zoerman was an "owner" of the car, even though his name did not appear on the title.  The owner-operator of an uninsured vehicle is not allowed to collect PIP benefits---because he or she hasn't complied with the law and paid for PIP coverage on the car.

The lower court threw out Titan's claim, however, when it failed to present any evidence that Zoerman was an owner of the vehicle.  To be an owner, the individual must be a registered owner (appearing on the title or registration) or enjoy the regular use of the vehicle for 30 days.  In the instant case, at trial Titan presented no evidence to support its claim that Kevin enjoyed the right to operate this vehicle on demand.  The testimony indicated Kevin's wife bought the car without his knowledge, that she maintained it, and that she possessed the only keys.  The Zoerman's claimed that Kevin used the vehicle infrequently and that his wife retained the right to grant permissive use.  Under these facts, Titan had not created a question of fact with regard to whether Kevin was an "owner" on the alternative statutory basis (by reason of enjoying the right to exercise regular use for 30 days).

Dental injury is a "serious impairment of bodily function"

Brian Fisher was stopped at a stoplight when he was rear-ended by Derrick Blankenship.  His face struck the steering wheel and among other minor injuries, he lost a tooth.  Ultimately, his dentist concluded that when the traumatic injury was combined with other pre-existing dental problems, the 42-year old Fisher needed to remove 14 of his upper teeth and replace them with a prosthesis.  Fisher did not lose much work and still engaged in all of his normal activities, however, he noted that  his appearance was changed, that some days it took him 45 minutes to an hour to adjust the prosthesis, that it sometime made him drool and altered his speech, and that he experienced difficulty eating certain foods. He also testified that it created a "severe gag reflex" and was often painful, awkward and frustrating.  Two judges of the Court of Appeals agreed with the lower court that Fisher's injuries constituted a "serious impairment" and a "permanent disfigurement," even though the impact of the injuries was diminished by the prosthesis.

Judge Kirsten Kelly, who tends to favor the interests of insurers, noted that Fisher "remains employed,"..."takes no medication"..."continues to engage in his favorite hobby"...and "his weight has remained constant."  Citing these facts and others, she would have dismissed Fisher's claim as neither "serious" nor a "serious disfigurement."

Court rejects malpractice insurer's claim that filing one day early should lead to permanent dismissal

Barbara Zwiers sued Sean Growney, M.D. and Michigan Pain Consultants for malpractice.  Under the law, she was required to file a Notice of Intent spelling out the basis of her suit, and then wait 182 days before filing her Complaint and Affidavit of Merit.  Her attorneys miscalculated and filed the suit one day early.  The insurer's attorneys then waited for the statute of limitations to run before asking to dismiss the claim.  The lower court agreed with the insurer and permanently dismissed the lawsuit.

The Court of Appeals reversed, noting that the stated legislative purpose of the statutory waiting period was to allow for the settlement of claims prior to suit, thereby assuring that meritorious claims would be compensated while reducing the cost of processing claims.  The court noted that accidentally filing the suit one day early did not defeat this legislative purpose, and held that pursuant to MCL 600.2301, a statute that allows the Court to ignore defects in pleadings or in "process," should be applied.  Since the alleged victim acted in good faith and the dismissal would not be "in furtherance of justice" the Court reversed the lower court and reinstated the malpractice claim, despite the one-day error in computing the notice period. 

Insurer wins appeal: injury victim's right to PIP benefits must be determined by jury

The trial court originally ruled that Jenne Ott was entitled to PIP benefits from Progressive Michigan Insurance Co., because Progressive had insured the vehicle in which she suffered injuries as a passenger.  Progressive argued, however, that the woman who purchased its insurance policy might not have enjoyed an ownership interest in the car, and therefore Ott should collect PIP benefits from the Assigned Claims plan (because Progressive should be allowed to cancel the insurance). 

NFL data unwittingly confirms football-dementia risk

A memo prepared by an attorney for the NFL's 88 Plan, a joint NFL and Players' Union project to identify and provide support for veterans suffering from dementia, inadvertently confirmed the disproportionate risk  of dementia that veteran players face.  The memo originally concluded that NFL veterans' risk of dementia did not exceed the statistically anticipated risk, when NFL experience was compared with other studies of broader population groups.  After experts used the NFL data and compared it with these studies in a statistically appropriate manner, however, the data yielded the opposite conclusion:  NFL veterans are experiencing dementia at "four or five times" the rate we would predict in a normal population.

Most experts on head trauma agree that concussions and other head injuries increase the risk of dementia, and most medical experts express the greatest concern about multiple head injuries or head injuries occurring before a prior concussion has fully healed.  The NFL, however, has been loath to accept the implications of this data, despite paying about 6 million dollars to 106 veterans in the past few years.

The program has identified 68 men, ages 60 - 89 who are receiving aid, and 35 others who received aid before they died.  It has also identified a number of other qualified veterans who have failed or refused to apply for aid.  When the age-at-onset of these veterans is taken into account and they are properly compared with non-football dementia research, it is apparent that NFL veterans are far more likely than others of similar age to suffer from severe dementia.  The author of the original NFL memo now admits that his contrary conclusion was flawed.

More evidence of the danger of head injuries in football

The death and autopsy of 42-year old Western Illinois football player Mike Borich added fuel to the evidence that repetitive blows to the head playing football can cause chronic traumatic encephalopathy (CTE), a condition similar to that suffered by many boxers.  The pathology of Borich's cerebral cortex demonstrated widespread damage to the former Chicago Bears and  Brigham Young University assistant football coach.  This adds to the evidence found on autopsy of eight NFL players who died between the ages of 36 and 52:  most exhibited extreme emotional problems and all exhibited irregular protein deposits and neurofibrillary tangles in the "thinking" or "executive function" and judgment locations of the brain.  It is thought that the physical condition leads to depression and substance abuse in many subjects.  While there may be a genetic predisposition toward the development of this condition, neurologists from the Boston University School of Medicine and the Rockefeller Neuroscience Institute took pains to emphasize that the condition can only be caused by physical trauma.

American Cancer Society elucidates issues involved in breast and prostate cancer screening

The ACS has been attempting to respond to recent research documenting the fact that "American medicine has overpromised when it comes to screening" without discouraging patients from seeking appropriate medical evaluations.  Unlike colon and cervical cancer screening, which have lead to the identification of deadly cancers and a substantial improvement in the related death rate, prostate and breast cancer screening have not significantly improved the survival rates for these cancers.  Instead, it appears that prostate cancer screening in particular, and to a lesser extent breast cancer screening, have resulted in the early identification and treatment of non-fatal tumors, while failing to catch fatal tumors early enough to be effective.   The ACS noted that while there has been a 40 percent increasein the diagnosis of breast cancer, this has led to only a ten percent decline in the diagnosis of Stage II and IV breast cancer.

The ACS notes that timely mammography is still an important health choice, although its effectiveness has been exaggerated.  Researchers suggest that the problem lies with our inability to distinguish between relatively benign cancers and cancers that will be fatal if left untreated.  Until we make that scientific leap, many patients will undergo expensive, invasive and dangerous treatments that ultimately prove to be unnecessary.  Recent research has demonstrated that in many cases the complications arising from treatment may outweigh the benefits gained.  A long-term study from New England documented the fact that survival rates among "over-treated" patients were lower than survival rates among the "under-treated" population.  This is not simply a question of "more is better."  We must determine how to judiciously apply resources where they will best serve the patient.

Consumer Product Safety Commission eyes standards for 4-wheel ORVs

The CPSC recently rejected voluntary safety standards suggested by manufacturers of 4-wheel ORVs, finding them inadequate.  Instead, it will take testimony from the industry and the public and compose independent standards.  It noted that the side-by-side off-road vehicles, capable of speeds in excess of 35 miles per hour, are involved in a disproportionate number of deaths and injuries.  In March, Yamaha recalled 100,000 of its Rhino models for repairs, after two models were linked with 46 deaths in six years.  The vehicles pose a substantial roll-over risk and have been associated with 116 deaths and many serious injuries since 2003.  Many of the victims have been children.  Industry spokesman suggest that the deaths are merely the result of owners' unsafe use.

Court rules doctor was unfairly denied malpractice insurance

Doctor Manisha Gupta was hired by Anchor Senior Medical Services to provide direct patient care.  Under her contract, Anchor, doing business as Grand River Medical Center, agreed to provide Gupta with $100,000.00 of malpractice coverage.  Gupta left the practice after 15 months, but later was served with a malpractice complaint arising out of the death of Glenna Wojnicki.  Her employer refused to provide liability coverage for Gupta, arguing that the employment contract it imposed on her was "ambiguous" and should be interpreted to require that when she left Anchor's employment, it became her obligation to purchase a "tail" to cover claims related to her period of employment. 

The Court of Appeals rejected this claim and enforced the plain terms and meaning of the parties' contract.  It was Anchor's obligation to provide $100,000.00 of coverage for Gupta relating to claims arising during her term of employment.

No homeowner coverage for defective workmanship or mold

Hometowne Building Company built a house for a customer in South Lyons and then experienced problems with water seepage and mold.  After several unsuccessful attempts at remediation, the owner sued Hometowne and ultimately, one of its insurers, the North American Specialty Insurance Company (NASIC) settled the claim with the owners.  NASIC then sued Amerisure Mutual to force it to contribute to the settlement.  Amerisure argued that two exclusions in its policy let it off the hook, and the Court of Appeals agreed. 

The Court concluded that the "defective workmanship" exclusion precluded coverage for any damage to the structure caused by mistakes made by Hometowne.  This would leave limited liability for Amerisure to cover injury or damage to contents caused by defective workmanship, however, the policy also contained a "fungi or bacteria" exclusion which eliminated any contents coverage for damage caused by mold, fungi or mildew or their ramifications.

Doctor's attempt to sanction estate of patient who sued for malpractice is defeated

The family of Elizabeth Kitchen sued her doctor, Michael Dargay, D.O., for malpractice which they alleged caused her death.  Experienced case evaluators placed a compromise settlement amount of $125,000.00 on the case against Dargay, but his insurer and the family both rejected the compromise.  Oakwood Hospital paid $17,500.00 to settle claims that it was vicariously responsible for Dargay's negligence and the family and doctor went to trial, where the jury refused to hold Dargay responsible for the death.  Dargay then sought $42,000.00 from the Estate for his legal fees and expenses. 

Pfizer hit with 1.3 billion dollar penalty for illegal practices: no big deal if your annual revenue is 48 billion

The U.S. government began investigating Pfizer's illegal activities in promoting Bextra--a pain killer since removed from the market--in a criminal action arising out of the government's payment of medical expenses for its beneficiaries.  Ultimately, the U.S. Attorney concluded that Pfizer was illegally promoting Bextra and other drugs to doctors through kickbacks and other illegal practices that included marketing the drugs for uses not approved by the FDA.  The claim was recently resolved by agreement of Pfizer to pay $1.3 BILLION dollars in civil and criminal fines.  Given that Pfizer reported revenues of $48.3 billion dollars in 2008, this kind of punishment is unlikely to phase the company's executives or deter future illegal activity of this nature.   Bextra was removed from the market because it was implicated in an unreasonble number of heart attacks and strokes among pain-relief users.

Battery and nuisance claims arising from burning lawn waste are dismissed

Helga Rose sued her neighbors, the Braciszewski family, claiming that their twice-annual burning of lawn waste created a battery to her and a nuisance to her property because the smoke entered her home and exacerbated her pre-exisiting respiratory problems.  The Court held that the standard is an objective one, meaning that if the smoke would not have constituted an unreasonable trespass that "substantially impair[ed] the comfort or enjoyment of adjacent premises" it was not actionable.  On this basis, the Court denied Rose any relief for nuisance.  It also held that she could not prove that the Braciszewski family intended the smoke to come into contact with her, and therefore no legal "battery" had occurred.  She was denied any financial compensation and also denied the right to enjoin the day-long burning.

Federal Tort Claim dismissed as government owes no duty to soldier's family

Claims against the federal government, or its agents and employees, are handled through a semi-administrative procedure called the Federal Tort Claims Act.  The injured or aggrieved victim must file an administrative claim, and if dissatisfied with the resolution may then file a Federal District Court non-jury action.  The law to be applied follows the civil law of the State that is the location of the injury.  Thus, when Janyce Brown filed a malpractice-type claim arising in Michigan, the Federal Court for the Eastern District of Michigan following Michigan's malpractice law in deciding it.  Brown had argued that she and her children were exposed to a parasitic disease called Leishmaniasis because her husband (the kids' father) had carried the disease home from the First Gulf War.  The disease is spread through bites of an infected sand flea and is common in the Middle East.

Malpractice claim dismissed when victim's doctor mis-states basis of his opinion

Timothy Blount sued Jean Marie PIerre, M.D., Blount's family doctor, alleging that Pierre was negligent in attempting to biopsy a suspicious lesion on Blount's tongue.  Blount's attorneys demonstrated confusion in filing two separate claims against Pierre, one alleging that Pierre was a General Practitioner and a second alleging that he was a Family Practice specialist.  Ultimately, they moved forward on the allegations of negligence by a General Practitioner, which required them to provide expert testimony from a comparably-credentialed physician familiar with the "local" community standard of care. 

Ludington Holiday Inn case sent back to lower court to address fees owed by AutoOwners

Earlier on this website, we reported on litigation involving the Ludington Holiday Inn, where a family suffered a toxic exposure as a result of a problem with the heating system.  AutoOwners insured the Inn but refused to defend the injury claims against the Inn, arguing that they fell within an exclusion for injuries caused by pollution.  The trial court rejected that argument, and enforced an exception for "heating equipment" in the policy language applicable to the pollution exclusion. The lower court also awarded the Inn and the injured family significant attorneys fees and costs. 

Slip and fall in parking ramp cannot be pursued as ice was "open and obvious"

Christine Blue fell on ice in the parking ramp at St. John Hospital.  She filed an injury claim (probably in the hope of recovering enough to pay the St. John's bill for treating her).  The Court of Appeals this week overturned the trial court and held that Blue cannot sue.  Two of the three judges felt that there wasn't adequate notice of the icy conditions to hold the hospital responsible, and also applied the "open and obvious" doctrine to her claim.  The latter doctrine is an "Engler Majority" monstrosity that relieves a landowner of any duty to eliminate a hazard that would be visible to a visitor on casual inspection.

Supreme Court reverses lower court decision; allows State Farm to claim fraud

Raymond Andres was horribly injured in a car accident and now requires 24 hour attendant care.  State Farm was his auto (PIP) insurer and has been obligated to pay for this care.  State Farm initially entered into an agreement to pay Andres' family for the care provided, but later refused to pay, alleging that the agreement had been fraudulently arrived at by some form of collusion between Andres' attorney and State Farm's adjuster. 

Father cannot sue government investigators who respond to abuse reports

Patrick McCarthy was involved in an ugly divorce and custody battle when his ten- and eleven-year old daughters made complaints of inappropriate sexual contact to their daycare provider.  The family was forced to undergo a thorough investigation by human services and police agencies and McCarthy was charged with 2d degree Criminal Sexual Conduct.  Just prior to the commencement of a criminal trial against McCarthy, the girls recanted their  claims,  and both the criminal case against McCarthy and the child protective proceeding were dismissed.  McCarthy then sued the agencies and the involved individuals, arguing that investigators should have known that the complaints arose out of the custody battle and dismissed them without an investigation.  The Court of Appeals rejected McCarthy's reasoning and concluded that the state actors were immune from liability because the girls' claims created "probable cause" for an investigation that was not motivated by malice.

Employer held accountable, beyond workers compensation, for traumatic amputation

Kristi Fries lost both hands above the wrist when the stamping machine she was operating cycled in response to her loose clothing.  She sued her employer, Mavrick Metal Stamping, arguing that it was responsible beyond workers compensation benefits because it had intentionally caused her injury.  An employer in Michigan is immune even from gross negligence or willful misconduct, if an employee is covered by workers compensation:  the courts have been exceedingly slow to allow employees to recover more than medical and partial wages, no matter how egregious the employer's fault is causing an injury.  The Court of Appeals allowed Fries to recover outside work comp, however, after reciting the facts leading up to her horrible injury.

ADA standards and regulations set to change

On September 23, the Equal Employment Opportunity Commission published its proposed new regulations for administering the Americans with Disabilities Act, which was amended effective January 1st.  According to experts, the new regulations will "significantly lower the standard for an employee to establish that he or she has a covered disability."  The amendment is expected to move the interaction under the ADA from a fight over whether an employee is qualified for consideration under the act to a fight over the employer's duty to make reasonble accommodations.  From the amendment forward, the employee's proofs will primarily be directed to whether the "diability" limits an employee's ability to work or is perceived to perform his or her job.  The new regulations will also take into account "mitigating measures" such as medication, eyeglasses, hearing aids and other measures which formerly precluded an employee from qualifying as "disabled" and eliminated any duty of accommodation.

Defamation claim is dismissed because mayor enjoys immunity for calling employee a "liar."

The mayor of Potterville in Eaton County became embroiled in a dispute with the City Treasurer and Deputy Treasurer, who criticized the city manager's bookkeeping practices.  The mayor, Julia Nelson, eventually called the Deputy Treasurer, Donna Hannahs a "liar" in an exchange questioning whether Hannahs had disclosed to another city employee that a closed meeting had been held at the last council meeting.  Hannahs was later fired after no wrongdoing was attributed to the city manager, and Hannahs sued Nelson for defamation.  The Court concluded that whether or not Nelson had defamed Hannahs by calling her a liar, the comment, as part of an ongoing public investigation, was cloaked in governmental immunity.  She was "the highest elected official of the city and acting in her legislative capacity as a member of the City Council when she made the challenged remark."

Court decides to publish malpractice decision regarding forseeability and causation

Several weeks ago, we reported on the Lockridge v. Oakwood Hospital and Donald R. Schipper, M.D., decision.  Scarlett Lockridge had sued the defendants and achieved a modest verdict after Schipper mis-diagnosed and mis-treated her son.  The Lockridge boy suffered chest pains, vomited and lost consciousness on his way to the school bus.  Schipper diagnosed his problem as anxiety and prescribed him Toradol and valium.  Lockridge's expert physicians claimed that Schipper should have ordered a chest x-ray, and that if he had, the aortic abnormality which killed young Lockridge would have been discovered and successfully treated before it ruptured.

Qualified immunity denied for arresting officer who allegedly mistreated handcuffed mental patient

In Amanda Morrison v. Green Township, et al. officer Scott Celender was called to a home where Ms. Morrison was allegedly armed with a knife and threatening suicide. She was tackled as she either walked or ran away from the officers [depending upon which account of the incident is believed] and handcuffed.  She alleged the cuffs were too tight and that the officer rubbed her face into the ground each time she attempted to speak.  The officer admitted that she was not uncooperative while handcuffed, and Morrison admitted that she screamed repeatedly while the officer knelt on her back.  Ultimately the court ruled that it was for jurors to decide whether the officer's conduct was a violation of 42 USC 1983 and the use of "excessive force."  The court noted that the marks on Morrison's wrists and other evidence supported her allegations, creating a question of fact for the jury.

Court examines impact of early filing of malpractice claim

The medical malpractice rules require an injury victim to file a Notice of Intent, explaining to the health care providers precisely why and how the victim believes he was mis-treated.  The alleged victim must then delay six months before filing suit against the health care providers.  In Sheila Ellout v. Detroit Medical Center, Ellout's attorneys apparently mis-read the complicated pleading rules and filed suit against the allegedly responsible nurse before the appropriate time period had run.  The Ellout's death claim was then dismissed with prejudice (meaning the decision was a final decision on the merits) by the lower court. 

No 1983 claim where propriety of underlying conviction is not challenged

Roderick Booth sued the Department of Corrections, alleging that he was wrongfully denied his constitutional rights, when he was punished by the DOC for misconduct in his jail cell.  He had never appealed the administrative finding of misconduct, and on that basis, his claim of a 42 USC 1983 violation of civil rights was dismissed. His argument that the adminstrative procedure was biased and a denial of due process could not form the basis for a separate legal action because he had not challenged the original decision on appeal.

5 months in wheelchar, 5 more with walker, followed by need of cane to walk doesn't prove "serious" injury

Judges Christopher Murray, Jane Markey and Stephen Borrello wrapped up a good month for the insurance industry by ruling against Linda Berishaj on her "serious impairment" claim.  The judges found a basis to throw out each of the injury cases on their docket, completing a "clean sweep" on Friday by dismissing four cases.  In Berishaj v. Shkreli and Auto Club, the judges ruled that a woman injured in a car accident couldn't sue the at-fault driver, even though her injury was objectively manifested and signficantly impaired her ability to walk.  The evidence showed that Berishaj was confined to a wheelchair for five months, used a walker for five more, and then began using a cane to ambulate:  the judges concluded this was not adequate proof to demonstrate that she had suffered a "serious impairment of bodily function." 

Excessive force claim against Deputy is dismissed

Officers investigating a domestic disturbance arrested John Mahl, the ex-husband.  As they prepared to handcuff him, he told the officers that he suffered from a shoulder injury, had confirming physician documentation at his home, and asked that he be handcuffed with his wrists in front of his body.  Officers rejected his request and he later filed an injury suit alleging gross negligence and assault and battery.  The arresting officer's motion to dismiss was denied by the trial court, as the judge concluded the reasonableness of the officer's conduct was a question of fact to be decided by the jury.  Judges Chris Murray, Jane Markey and Stephen Borrello completed an anti-victim sweep of their cases for the month by overturning the Genesee County judge's decision and dismissing the claim.  They held that the gross negligence claim was incorporated into the battery claim, and that the latter claim should be dismissed because "there [was] no evidence that Defendant in bad faith disregarded plaintiff's request...There must be some discretion reposed in a sheriff or other officer...[A]nd this discretion cannot be passed upon by a court or jury unless it has been abused thorugh malice or wantonness or a reckless indifference..."

Of course, by the court's appellate standard in this case, the officer's account of his conduct simply can't be challenged at all, since the Court refused to consider the alleged victim's account of his arrest and treatment by the deputy.   The case is Mahl v. Maguire.

Doctor who accepts E.R. transfer of heart patient owes no duty

Judges Chris Murray, Jane Markey and Stephen Borello completed a "clean sweep" last Friday, when the ruled against four more injury victims and dismissed four more lawsuits.  Earlier in the week that had dismissed several other appeals brought by injury victims. 

One of Friday's decisions was the dismissal of an appeal filed by the widow of a man who had been transported to his local hospital with chest pain.  In the Plainwell E.R., the examining doctor could not decide whether the pain was caused by heart problems or a possible rupturing aortic aneurism, and consulted with Sualeh Ashraf at Borgess Medical Center.  The two doctors arranged for the decedent to be transported to Borgess for treatment, where the examining physicians concluded that he was in fact experiencing an extensive aortic dissection.  Borgess cannot treat this condition, so he was now transported to the University of Michigan.  He died at the latter hospital after a 14 hour repair surgery.

Progressive Insurance may have to pay benefits to injured worker

In Progressive Insurance v. Contract Towing, Inc., the Court of Appeals concluded that a jury must be impaneled to resolve the factual issue of whether an injured man was an "employee" or merely a "hanger-on."  The injured man, Larry Dodson, was hurt while performing maintenance on a Contract Towing truck insured by Progressive.  The Progressive policy excluded coverage for any injury to an employee of Contract Towing.

In a pre-trial hearing, the court concluded that Dodson was not an employee because he had never been paid for his services, even though he showed up on a daily basis, five days per week. The owner, James Wilson, who had provided Dodson with a place to live, meals and occasional spending money, testified that none of these benefits were "bargained for compensation" and that his support of Dodson was a charitable effort.  The Court of Appeals determined that resolving Dodson's status as an employee was a factual question involving issues of credibility.  Therefore it could not be decided by the court in a pre-trial ruling.

Man struck while inspecting his (uninsured) vehicle at stop sign is eligible for PIP benefits.

Normally, the operator of an uninsured vehicle involved in a collision is not eligible to collect PIP benefits.  In Knox v. Auto Club Group Insurance Co., the Court of Appeals relied upon Supreme Court precedent to force the Auto Club to pay benefits it refused to pay.

Knox observed his ex-girlfriend parked in a pickup truck near his apartment.  He concluded that she was planning on vandalizing his van and decided to move it.  When he drove away from the apartment, however, the girlfriend followed him in her pickup.  At the intersection of Ballenger Highway, he stopped at a stop sign and the ex- drove her vehicle in to the rear of the van.  He put it in park and went to the rear of the van to inspect the damage:  she promptly struck him and the van with her pickup, causing him injury, prior to fleeing the scene.

Auto Club was assigned to respond to Knox's request for PIP benefits.  It maintained that his vehicle was "involved" in the collision, since it was parked partly on the road and therefore was therefore "parked in such a way as to cause unreasonable risk of the bodily injury."  The Court pointed to the Miller v. AutoOwners decision where the Supreme Court refused to apply a bright-line "on the road--unsafely parked" distinction.  In Miller, the Court had refused to consider a State Police cruiser unsafely parked, where it protruded into the traveled lane and was struck by a motorcylist.  In the instant case, even though Knox's vehicle was "parked" in the road, the Court concluded that under the circumstances and in broad daylight, it was not parked in a way as to cause unreasonable risk of injury."

Employee limited to work comp as exclusive remedy for injuries

Zoran Saveski attempted to sue the Ford Motor Company, alleging that he suffered injury as a direct result of intentional misconduct by a supervisor.  Saveski , a toolmaker, was directed to assist with maintenance on a "Lamb" machine while the plant was shut down.  During maintenance, he was left holding a 100 pound component, causing a blown disc.  He maintained that the supervisor intentionally placed him in a position likely to cause injury.  The Court held that he had not pleaded sufficient facts to document an exception to the workers comp "exclusive remedy" provision applicable to injuries suffered at work.  In order to avoid that provision and sue his employer for negligence, Saveski would have needed to show that the supervisor actually intended his injury; it was not enough to show that an injury was "likely" or "probable".

Excessive force, gross negligence claim vs. EMU and Ypsilanti police is dismissed

Rhonda Green sued several police officers after she was arrested in the Buffalo Wild Wings parking lot.  She had been involved in an altercation with her cousin over ownership of an article of clothing, and the altercation had drawn a crowd of 150 people.  Police acted appropriately in arresting Green, and the judges concluded that they also responded appropriately to Green resisting arrest.  Judge Beckering did point out that under the law, it was the duty of the individual deputies to plead and prove that they were entitled to governmental immunity for their actions.

Retiree cannot sue for car accident injuries, despite two surgeries

Judges Christopher Murray, Jane Markey and Stephen Borello, constituting a panel of the Court of Appeals, handed down several opinions this week, all of which managed to result in victories for an insurance company.  Among them:  the dismissal of Gunnard Kyllonen's injury case against William Luepnitz.  Luepnitz had caused a car accident in which Kyllonen suffered a shoulder injury.  Kyllonen endured two surgeries on the shoulder (one to insert a screw and another to remove it) and pain, limitation of work and recreational activities, and some continuing disability.  The judges held that his injury was not a "serious impairment."

Fewer residents, less traffic, more fatalities: rural roads are least safe

Because of their higher speeds, the rural roads that serve only 23 percent of the U.S. population are the site of 56 percent of motor vehicle deaths.  In addition to higher speeds, other causes for this phenomenon are increased average emergency response time (80 minutes in Montana, for example, compared with 15 minutes in Massachusetts), higher number of miles driven, a higher percentage of poorly-engineered roads, and the increased likelihood of illegal driver behavior resulting from absent law enforcement (e.g., drunken driving or failure to use seatbelts).  The findings are contained in a new report by the National Highway Traffic Safety Administration.

Insurer pays life insurance proceeds to ex-wife; pays again to Estate

UNUM Life Insurance Company, rated one of the worst insurers in the country for treatment of insureds, put some of its flaws on display in a recent St. Clair County Probate case.  Gaylord Genaw had purchased a life insurance policy from the company and its value in 2006 was $110,000.00.  That year he and his wife divorced and the divorce judgment extinguished the ex-wife's interest in the life insurance. Days later, Gaylord was killed in a motor vehicle collision.  His ex- was still listed as a beneficiary on the policy and she applied for the proceeds, identifying herself as the divorced "ex-spouse."

Landlord again avoids liability for criminal activity against tenant

Joyce Memminger sued the landlord of her gated apartment complex, McKinley Properties, alleging that it should be responsible for allowing access to her ex-husband.  The ex-husband held her captive for hours and shot her when she attempted to escape.  Memminger initially argued that the landlord was negligent in allowing the assailant unauthorized access to the premises, however, the court dismissed that claim.  She then filed a second action alleging that she had been fraudulently induced to rent the apartment based on false representations regarding the landlord's restrictions on non-tenant entry.  The Court of Appeals rejected this claim, as well.  That result probably did not surprise the parties, once Judge Henry Saad was assigned to the hear the appellate case.  His is a consistent voice for the interests of insurance companies.

Congress explores giving active military the right to sue for malpractice

For almost sixty years, active duty members of the U.S. military were denied the right to seek compensation for medical malpractice, if the negligent treater was employed by the government.  This "immunity" for government doctors and their employer was established in a court decision rendered in the U.S. Supreme Court's 1950 Feres decision (and is, thus, called the Feres Doctrine.)

The U.S. House took a long step toward granting members of the military equal right to file a Form 95 compensation claim when the House Judiciary Committee passed a bill this week that would overturn the Feres Doctrine in cases of non-combat medical treatment. Treatment rendered in battlefield situations would remain exempt from meeting any standard of care, however, cases such as that of Marine Sgt. Carmelo Rodriguez, would now be compensable.  Rodriguez died from metastasized skin cancer, after the cancer was mis-diagnosed as a "boil" and mis-treated for years by a succession of military doctors.

Allstate first on list of "Ten Worst Insurance Companies"

The American Association of Justice recently published a Report detailing the conduct of the "Ten Worst Insurance Companies".  Allstate topped the list (it consistently tops everyone's list of most abusive insurers), of course.  Here is the full list:

    1.  Allstate; 2. Unum; 3. AIG; 4. State Farm; 5. Conseco; 6. WellPoint; 7. Farmers; 8. United Health; 9. Torchmark; and 10. Liberty Mutual.

The Chief Executive Officers of these ten companies averaged an annual salary of nearlly $9 million dollars (that's $9 million EACH) for 2007. 

To view the entire report, go to http://www.justice.org/docs/TenWorstInsuranceCompanies.pdf.

Study finds malpractice insurers "gouge" doctors and reap stunning profits

The American Association of Justice (essentially America's trial lawyers) funded a study of insurance profits by malpractice insurers.  It reported this week that the insurers achieved "astronomical" profits year after year--higher than 99 percent of Fortune 500 companies.  The Washington Independent quoted the Report as concluding that the malpractice insurance companies studied reported profits that were 35 times higher than the Fortune 500 average and ranged from a low of 5.9 percent to a high of 74.8 percent.  The average reported profit for these insurers during the period was 31.2 percent.  Nowhere else in our economy can a corporation or individual anticipate achieving profits that even approach this level--and yet the public conversation about malpractice "reforms" has focused solely on eliminating the rights of badly-injured individuals, rather than redressing premium-gouging of doctors by insurance companies.

Health care symposium concludes malpractice is very minor influence on health care costs

The O'Neill Institute for National and Global Health Law at Georgetown University concluded its symposium this week with the finding that curbing medical malpractice litigation isn't the "silver bullet" needed to slay rising health care costs.  The panel of academics, quoted by McClatchy's Washington Bureau, included medical, law and economics professionals.  It noted that partisan interests make "bloated" anecdotal claims arguing for malpractice reforms, but that in fact they result in only meager cost savings.  It further noted that even in considering so-called "defensive medicine" costs, malpractice claims account for only "2 to 3 percent---at most" of the cost of health care. 

The Institute's findings were very similar to the conclusions reached by surgeon Atul Gawande when he analyzed Medicare costs in Texas:  the problem lies in "fee for service" medicine and an attitude among some medical professionals of "leave no dollar on the table." Texas malpractice reforms had minimal impact on the escalation of costs when compared with the problems Gawande identified.

Saad strikes again: changes to roof to eliminate leak are not "maintenance or repair"

Henry Saad is perhaps the insurance industry's most reliable Michigan judge.  He can be counted on to vote in favor of insurers and their interests in virtually every case.  That propensity was on display again this week, when he voted to deny a claim filed by Karen Renny against the Michigan Department of Transportation.

Renny  was "seriously injured" when she fell on ice while entering a rest area building in Roscommon County.  She claimed the building was defectively designed and maintained in a manner that caused an ice build-up at the entrance.  The building had originally incorporated a gutter-like roof design intended to channel water away from the entryway.  Eventually the roof developed a leak and MDOT repaired it by means of a new approach that involved use of a "4 or 5 inch diverter" intended to channel water away from the entrance.  The new approach didn't work and caused a build-up of ice at the entrance where Renny fell.

Her case was initially appealed by MDOT to the Supreme Court, where the Engler majority held that she would not have a viable claim for negligent design of the roof.  This interpretation of the State's duty to maintain public buildings in a safe manner is prone to reversal, given that Justice Weaver and other Justices who disagreed with the decision now appear to represent a majority of the Supreme Court.  In any event, Renny's case was sent back to the lower court to assess whether she had documented a "design" case or a "maintenance" case.  The Saad panel of the Court of Appeals interpreted this mix of facts to be a "design" claim and therefore held that Renny could not sue MDOT for failing to maintain the building in reasonable repair.

Just one more in a trend of decisions that have interpreted Michigan law in a restrictive, activist manner to deny the common sense obligations of reasonable public policy.  "The duty to maintain safe buildings doesn't require the State to maintain safe buildings if we can torture the English language enough to achieve a different outcome."

Court reaffirms: no remedy for Michigan insureds when Farm Bureau acts in bad faith

Shirley Nixon sued Farm Bureau General after it refused to pay benefits under her homeowner's policy and accused her of intentionally setting fire to her home.  The trial court refused to dismiss her "bad faith" claim or her cause of action for "intentional infliction of emotional distress."  Farm Bureau appealed to the Court of Appeals, arguing that even if it acted in "bad faith" and wrongfully denied Nixon's purchased benefits, she had no claim for damages.

Citing an earlier case where Blue Cross wrongfully refused to pay for treatment of Stage IV metastatic breast cancer treatment, the Court of Appeals reversed the lower court ruling in Nixon's case and dismissed her claim for "bad faith."  The Court held that "the mere failure to pay insurance benefits" does not create a cause of action against the insurer in Michigan.  Unlike most states, Michigan does not recognize a cause of action for bad-faith refusal to pay an insurance claim, no matter how egregious the insurer's conduct, as "[f]ailure to pay a contractual obligation does not amount to outrageous conduct, eve if it is willful or in bad faith."  

Do you still have doubt about the power of insurance companies to control the law in Michigan?