TOV Injury and Safety Blog

Michigan Supreme Court to ban electronic communication during trial

The Michigan Supreme Court recently announced that electronic communications will be banned during jury trials and deliberations.  The move is a response to recent developments nationwide, including multiple appeals citing evidence relating to juror communications.  The media describing the new rule cited examples of a corporate executive texting to his boss during a side-bar conference, and to jurors posting contemporaneous messages on FaceBook or other sites.  A serious concern was expressed by Charlie Koop, Prosecutor from Antrim County, with regard to jurors attempting to answer evidentiary questions through independent electronic research on the web. 

Defective Chinese drywall brings to prominence concerns about inability to hold Chinese manufacturers accountable

The Kansas City Star pointed out on June 30, 2009, that the enormous problems associated with defective Chinese drywall have brought to the surface the compounding problems associated with holding Chinese manufacturers accountable.  The paper reminded readers that in recent months the list of faulty Chinese products identified in the media have included:

    "highchairs whose seat backs failed, steam cleaners that burned their users, bikes whose front-wheel forks broke, saunas that overheated, illuminated exit signs that stopped working when commercial power failed, dune buggies whose seat belts broke on impact and coffee makers that overheated and started fire...a soccer goal net that entrapped and stangled a child and a toy chest whose poorly supported lid fell on a toddler's neck and killed him."

During 2007, fully 69 percent of products recalled in the U.S. were manufactured in China, and previously recalled products continue to be imported, including "breakable toys on which infants can choke, lead toys, toys painted in lead-based colors and cribs whose slats are far enough apart to trap babies' heads."

Auto-Owners' attempt to deny a day in court to injury victim is rejected

Gary Hayward was injured while engaged in construction activity, allegedly as a result of an equipment explosion.  He argued that Keizer-Morris negligently caused the explosion.  In an effort to fend off Hayward's claim, AutoOwners filed a declaratory judgment action against Keizer-Morris, which was undergoing corporate dissolution, alleging that it did not owe coverage for Keizer-Morris's negligence.  Of course, particularly with a soon-to-be-defunct corporation involved, Hayward's claim would be defeated if the at-fault's insurer could deny coverage.

Hayward moved to join in Auto Owner's dec action, but the trial court denied his request.  Keizer-Morris made the willful decision not to oppose AutoOwner's decision, thereby allowing Auto Owners to secure an unopposed holding that it did not owe Hayward coverage. 

The Court of Appeals ruled, unanimously, that the lower court had erred in refusing Hayward's request to join in the action determining Auto Owner's obligation to provide coverage.  It noted that Keizer-Morris was not motivated to zealously advocate its position, and if fact did not even choose to make an appearance in the litigation.  It is in the interests of justice, both from a substantive perspective and from the perspective of judicial economy, to allow Hayward standing to argue the coverage issue.  "[T]he default of one party, [Keitzer-Morris] does not deprive the trial court of its power to decide the rights and liabilities of the remaining parties..."

Court dismisses woman's toxic mold exposure claim after Supreme Court eliminates "discovery" rule

Connie Colaianni alleged that she suffered numerous sinus and respiratory problems after her workplace moved into a newly-renovated location in 1998.  She did not sue until July of 2003, however, and the landlord argued that her case should be dismissed because it was not in compliance with the three-year statute of limitations. The trial court held that Colaianni did not reasonably discover the basis for her claim until her doctor diagnosed her illness as stemming from toxic mold exposure, and therefore concluded her suit was timely, as it was filed within three years of reasonable discovery. 

The Defendants renewed their motion to dismiss, however, after the Engler Majority of the Supreme Court wrote its opinion in Trentadue v. Gorton in 2007.  The Court of Appeals panel in Colaianni noted that when the Supreme Court completely repudiated the common law discovery rule in 2007, it undercut the basis for Colaianni's lawsuit.  Therefore, the case had to be dismissed on the basis of the three year statute of limitations, even if Colaianni's doctors did not identify the cause of her problems during the statutory limitation period.

Woman who "file-shared" 24 songs (worth less than $50 on iTunes) hit with $1.92 million verdict

According to the Associated Press, last week a jury awarded a verdict of $1.92 million dollars against Jammie Tomas-Rasset on behalf of a music industry plaintiff.  She had placed 24 songs on the music-sharing site Kazaa.  The songs could have been purchased on iTunes for $1.99 each, according to her attorney. 

This was the woman's second trial, as the judge had previously overturned a $222,000.00 verdict against her as "wholly disproportionate."  Chances are the outcome will be similar this time, particularly since the Supreme Court, in the Exxon Valdez case, recently overturned the punitive damage case against Exxon, even though it represented only a few weeks' profit.  Spokespersons for the Progress & Freedom Foundation's Center for Study of Digital Property (a so-called "free market think tank" fronting for big-money supporters) supported the verdict as "fairly seek[ing] to punish and deter such flagrant wrongdoing."

Law firm not responsible for employee's fraudulent notarization of signature.

Susan Grossman sued Liss and Associates, her ex-husband's attorneys, after an employee allegedly notarized her forged signature on an assignment of mortgage.  The case has made its way to the appellate court twice previously, and the court had overturned both a summary disposition and a directed verdict that had been granted to the defendant law firm.  Previously the court had held that whether the employee was acting "within the scope of her employment" at the time of the allegedly illegal act was a question of fact for the jury.  On this appeal, the plaintiff was attempting to overturn a jury verdict for the defense, based on what she claimed were unfair instructions from the trial judge.

Michigan Supreme Court allows judge to regulate witnesses' clothing

On June 17, the Michigan Supreme Court upheld the Hamtramck District Court judge's decision not to allow Ginnah Muhammad to testify in her Small Claims action without exposing her face.  Muhammad is a practicing Muslim who was attempting to contest a $3,000.00 charge from a car rental company, incurred after thieves broke into the car while she was renting it.  The Supreme Court issued an opinion granting judges "reasonable" control over witnesses' appearance after the judge insisted he needed to observe Muhammad's face in order to assess her credibility.

Court reaffirms holding that continuing misdiagnosis or mis-treatment does not extend statute of limitations

Brown v. Dr. Karen Milner and Dr. Dan Andrews, et al., is a very unattractive malpractice claim brought by a Ph.D., Mr. Kenneth Brown, against his treating physicians.  Brown claimed that inadequate or substandard care by his physicians contributed to a dysfunctional decade that included multiple job changes, multiple failed business ventures, three bankruptcy declarations, two divorces, and perhaps two criminal sexual conduct crimes. It will shock very few readers to learn that his malpractice claim was dismissed.  It is unfortunate, however, that the justification for the dismissal was the Michigan judiciary's refusal to consider "continuing wrong" liability.

Bloomberg reports cost of medical malpractice claims are "a drop in the bucket"

On June 16, the Bloomberg News Agency responded to President Obama's talk to the American Medical Association by citing figures from a Harvard economist showing that the total cost of medical malpractice claims is about $12 per person in the U.S.  That amounts to about $3.6 billion dollars of a total $2.3 trillion dollars spent on health care (or one in every six dollars of our gross domestic product, by some calculations).  As Bloomberg and Harvard pointed out, this makes the total cost of malpractice claims "a drop in the bucket" when compared to the total cost of health care:  even eliminating malpractice claims entirely would have a negligible impact on the runaway cost of medical care in the U.S.  The U.S.'s largerst health insurer, WellPoint, Inc., conceded the same point last month when it issued a report acknowledging that medical liability was not driving up the cost of health insurance premiums.

Treble damage claim for fencing stolen property dismissed

American Auto Recyclers sued the Ferrous Processing & Trading Company, alleging that the defendant had illegally and knowingly accepted stolen automobiles for scrap.  Under Michigan law, MCL 600.2919a, a person who knowingly buys or accepts stolen property can be forced to pay treble damages to the theft victim. 

Court affirms power to decide whether indigent criminal defendants are denied effective counsel

In Duncan v. State of Michigan, the Court of Appeals has upheld three Circuit Judges who ruled that indigent defendants in Genessee, Berrien and Muskegon Counties were entitled to a hearing on their claim that they were systematically denied their constitutional rights.  The lower courts had found that the County systems created to afford the State and federal Constitutional right to counsel to these criminal defendants were not sufficient, due to inadequate funding by the State. 

Family of murder victim can sue contractor who failed to report escape immediately

Sharon Brooks, P.R. of the Estate of Dominique Wade sued Starr Commonwealth after a juvenile escapee killed Mr. Wade.    Starr ran a residential treatment program under contract with Wayne County.  Despite a long arrest record and a history of violence and escapes at Starr's facility, Michael Kirksey was not placed in a locked facility.  After his fourth escape (he had not been disciplined for the prior three, either), he killed Mr. Wade.  Wade's Estate claimed that Starr could be held responsible for the death because it violated a safety statute requiring that it "immediately" report an escape to police.  In this case it did not report the escape of Kirksey and three others for nearly two hours.

Fraud case against Auto Club allowed to proceed

Sharon Strozewski sued the Auto Club Insurance Association, alleging that it fraudulently denied her proper payment for quitting her job to care for her two small children who suffered severe brain damage in a car accident.  Her case came back to the Court of Appeals, after appeal to the Supreme Court, to determine whether the insurer could properly be charged with defrauding two brain-damaged very young children.  The Court concluded that even though the children were no misled by the alleged fraud, their representative, Strozewski, was:  therefore a fraud case was viable.

Michigan Campaign Finance Network: Taylor substantially outspent Hathaway

The Michigan Campaign Finance Network (MCFN), attempting to secure greater transparency in fund-raising for judicial elections, published its findings on the 2008 Michigan Supreme Court race this week.  Justice Taylor, the conservative Republican who had been appointed by Governor Engler and who was considered the poster-boy for "tort reform" favoring insurers, was defeated despite raising $4.8 million dollars.  His campaign outspent his opponent's by $1.93 million to $750,000.00, and including outside interests, $4.8 million was spent on his behalf, compared to $2.7 million spent in total for Hathaway. 

Supreme Court rules 5-4 that taking too much money from a litigant can disqualify a judge

In prior log entries we have discussed the Caperton v. A.T. Massey Coal Company brouhaha.  Several small coal companies sued Massey, the state's largest, claiming that its owner had put them out of business through illegal fraud.  They won a verdict in the amount of $50 million dollars.  Massey then counted noses on the West Virginia Supreme Court, and contributed 3 million dollars to the campaign to replace one of the sitting justices with a candidate he favored.  That candidate won and became the deciding vote in a 3-2 decision overturning the verdict against Massey.  Yesterday the U.S. Supreme Court held 5-4 that the small coal companies had been denied due process.

Injury action against school principal is dismissed, based on immunity

A Detroit parent sued her daughters' principal after both daughters were assaulted in separate incidents at school.  The parent claimed that after one of her twins was involved in an altercation, the second twin should have been sent home, also, because she was likely to be attacked by friends of the girl involved in the first altercation with the sibling.  The court pointed out that the principal is immune from ordinary negligence and responsible only for injuries resulting from "gross negligence."  The court concluded that the parent had not established any factual basis for arguing that the principal had been guilty of a "reckless disregard for a known risk of injuries."  It ruled that "reasonable jurors" could not "honestly" reach the conclusion that the principal had shown "a substantial lack of concern for whether an injury [would] result." 

Over-reaching Farm Bureau claim gets dunked

Bill Carpenter, a Farm Bureau insured and Michigan resident, was working in Indiana when he was hurt in a car wreck. The at-fault, Wendy Black, happened also to be a Michigan resident.  Indiana, like Michigan, requires injury victims to bring suit in the County where the injury occurred.  When Carpenter sued, however, Farm Bureau ran to court in Michigan and filed its own suit, seeking to force Carpenter's case in Indiana to be dismissed.  Turns out that Farm Bureau liked Michigan law better and wanted a court to apply Michigan law because the two drivers were both from Michigan.

Workers compensation "exclusive remedy" provision upheld

In Stallings v. General Motors Corp., the Court of Appeals again upheld the dismissal of an injury action against the injured employee's employer.  As has been explained in previous web log entries, adoption of the workers compensation scheme resulted in partial immunity for employers' negligence.  People hurt on the job are guaranteed certain benefits including medical expenses and a fraction of their normal wage, but cannot secure complete recovery from their employer, even if the employer is guilty of negligence or gross negligence.

Court refuses to interpret Release to immunize third-parties: no free ride for State Farm

Regina Randolph was struck by a car, landing in the center of a Pontiac Street.  While bystanders activated flashers and attempted to assist her, she was struck again by a drunk driver and killed.  Titan, the cheap insurer for the first driver, paid its liability limits of $20,000.00 in settlement to her family and required that they execute a release.  The family then sued the drunk who last struck Randolph and the bar where the drunk had been drinking, along with Randolph's own Uninsured Motorist insurer, State Farm.

State Farm and the bar persuaded the trial court to dismiss the family's claims against them, arguing that they had been released by the boiler-plate language in the earlier Titan release.  The Court of Appeals reversed.  Two judges distinguished the language and facts of this case from the Romska v. Opper decision, where a similar argument was upheld.  These judges ruled that this incident involved two separate "accidents" and therefore the broad release language in the Titan release did not apply to State Farm. 

In a brief but well-reasoned concurrence, Judge Wilder pointed out that by prior Supreme Court precedent, State Farm and the bar were not direct "third-party beneficiaries" intended to benefit from the language of the Titan release.  In Koenig v. South Haven, the Engler majority had held that the family of a young man who drowned on an ill-protected breakwall could not sue the City for failing to maintain the breakwall in accordance with its contract with the State, as potential injury victims were not "intended third-party beneficiaries."  Judge Wilder logically pointed out that if this law applied to deny injury victims' rights, it should also apply to potential defendants who claimed to be third-party beneficiaries to a contractual arrangement.

The case is Brown v. State Farm Automobile Insurance, et al.

Supreme Court overturns lower court, reinstates malpractice verdict

Providence Hospital and Debra Wright, M.D., had convinced the Court of Appeals to overturn a  verdict finding them responsible for the death of one twin fetus and brain injury to its sibling.  The Court of Appeals had concluded that the Wilcoxson-Bey twins' injuries may have resulted from malpractice, but that the family could not prove that meeting the standard of care would have prevented the injuries.  The Supreme Court overturned that decision on a 6-1 vote, concluding that "when the record is reviewed in its entirety, there was sufficient evidence presented to demonstrate that daily fetal monitoring is effective in the vast majority of cases in detecting cord compression and fetal distress-which are events that precede cord occlusion and that signal the need for intervention to prevent injury.  The actual timing of the occlusion itself is not relevant..."

In the past decade, malpractice defense attorneys in Michigan have enjoyed success that surprised even their peers, arguing technicalities that invalidated meriotorious claims.  Perhaps the Wilcoxson-Bey case and the recent Apsey decision are evidence that the pendulum has swung and that legitimate malpractice victims are more likely to encounter a "level playing field."

Owosso woman wins 9-year old malpractice claim

Sue Apsey sued her radiologist and Owosso Memorial Hospital in Shiawassee County after her abdominal x-ray was mis-read.  She was left with lifelong crippling injuries because the doctor failed to recognize a perforated bowel and leak that was apparent in her x-rays.    Although the jury last week awarded her $2.9 million dollars, tort-"reform" caps will limit her to receiving less than one million dollars, according to her attorney. 

"Strict Construction" and judicial activism: what do these terms really mean?

In recent years, many pundits have called for a return to "strict construction" of legal documents, legislation and even the Constitution.  In some cases, the advocates have gone so far as to argue for "original intent," that is, interpreting the Constitution, for example, as intended by its draftors, rather than by modern analysis.  This initially inviting and simple suggestion loses some of its attraction when we are reminded that many of those draftors were actually slave-owners and that the Constitution itself assigned a value of only six-tenths of a person to black slaves. 

None of the draftors would have granted the vote, for example, to blacks or women; and a majority would have denied the vote even to white males if they lacked their state's prescribed property requirements.  The suggestion that "strict construction" is a simple and more accurate judicial goal, and the criticism of any other approach as "judicial activism," intentionally obfuscates the task of the judiciary and denigrates our courts.  As examples, we point to two recent events reported in widely divergent courts.

Court stretches to enforce pre-injury release executed by volunteer

Teresa Theodore volunteered to work at a racetrack in Oakland County.  On her first day, she was required by the racetrack to execute a release which "waives, discharges and covenants not to sue" for any injuries suffered "arising out of or related to the event(s)" held at the racetrack. An undetermined time later, she was struck by Raymond Horenstein's trailer as he was leaving the paddock area.  She sued Horenstein for her injuries, but his insurer persuaded the trial court that her claim against Horenstein was waived by the release she signed when she agreed to volunteer.  The Court of Appeals agreed.

Malpractice claim versus real estate appraiser explained

Michael Dorman sued the appraiser he hired to support his inverse condemnation claim, Gilbert Zook.  Dorman had sued Clinton Township, claiming an illegal "taking" of his right to develop a parcel of real estate.  He claimed that he lost his case because Dorman mistakenly failed to account for the Michigan Land Division Act and subsequently conceded (wrongly) that Dorman could still secure a profit on his development by complying with the Township's zoning requirements.

Wrongful Death allocation evaluated

In a brief paragraph, the court unanimously rejected the claim that the allocating court should not consider all wrongful death distributions:  the court is required to consider all of the relevant circumstances, and prior distributions are certainly relevant.

Next, the Court pointed out that the lower court's decision was supported by evidence that after the legal separation, the widow did not enjoy a meaningful relationship with the decedent.  There was even evidence that she had entered into a new romantic relationship with a third party.  Under the circumstances, it was not error for the lower court to weigh credibility and determine that no further award to the widow was appropriate.

Michigan Justices weigh-in against court reform

Michigan taxpayers will be pleased to learn that Michigan Supreme Court Justices Young and Corrigan, with not enough work to do, filed an amicus brief with the U.S. Supreme Court, indirectly arguing against limitations on judicial campaign contributions.

Malpractice claim dismissed because Notice served on DMC subsidiary has improper address

Lorean Allen was allegedly injured by the negligence of a nurse working at Harper Hospital, one of the subsidiaries of the Detroit Medical Center (DMC).  The Court of Appeals opinion does not document what Allen's injuries were:  since the case is being dismissed, we can surmise that the judges did not describe her injuries because they were severe and would have engendered sympathy for a victim whose claim is dismissed on a technicality.

The principal defendant in the case was, in fact, the DMC--who received a proper Notice at the proper address.  Nevertheless, by statute, the Notice of Intent to Sue must be served on the allegedly negligent nurse(s) at her "last known professional business or residential address" (even if the victim sues only the nurse's employer).  In this instance, the victim's attorney sent the nurse's notice to the DMC, but sent the Notice addressed to the nurse to Sinai-Grace Hospital, rather than to Harper Hospital.

Even though Allen's notice went to the DMC and it shares a corporate address with its subsidiary, Harper Hospital, and even though the notice identified Allen as a Harper patient, the court held that the notice did not comply with the statutory address requirement, and therefore Allen's lawsuit was dismissed.  In other words, the right office recieved a Notice that met the substantive requirements and properly identified the nurse and her employer, apparently, however, the duplicate copy directly addressed to the at-fault nurse was improperly titled "Sinai-Grace," and as a result the case was dismissed.  That qualifies as "reform" in Michigan.

Injury claim dismissed where victim cannot document product failure

Ron Paquin filed suit against Control Chief Corporation after he was injured by a 15-ton mandrel which he was re-locating by crane.  He had no memory of the injury, but claimed that the remote controller malfunctioned, causing the mandrel to strike him.  He offered the evidence of a mechanical engineer who claimed that the remote controller showed evidence of contact welds on the control pads which would have caused an unintended movement of the crane. 

Tenant who repaired defective handrail cannot sue landlord who installed it

Deborah Marino fell down the stairs in her rented home when a stairway handrail detached from the wall.  She and her husband claimed the handrail had been anchored only in the drywall and not in a wall stud.  Unfortunately, they repaired the handrail and drywall before filing suit for the injuries she suffered.  The appellate court upheld the trial court's decision to exclude any evidence of the manner in which the handrail had been mounted, since the landlord was not allowed the opportunity to inspect the failure before it was repaired. 

Party added through "Notice of Third Party Fault" seeks sanctions

The Koza family sued a number of parties after their new mobile home became consumed by toxic mold.  One of the original Defendants identified a number of contractors who helped place the home, including Unique Electric, as "non parties at fault" in causing the water leakage that resulted in the runaway mold problem. The Plaintiff family joined them in the suit, which was ultimately settled by the original defendants.  Meanwhile "Unique" was dismissed by summary disposition and sought costs from the Koza family, maintaining the claim against Unique was frivolous.

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.

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.   

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. 

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.

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. 

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.

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. 

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.

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. 

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.

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.

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.

Evaluating the "discovery" rule under the Federal Tort Claims Act

Claims against the federal government cannot be brought in state court and carry no entitlement to a jury trial.  While the U.S. Government has waived its basic "sovereign immunity" from suit, it requires that the injury victim comply with the statutory requirements of the Federal Tort Claims Act.  That act requires that suit be brought within two years (See 28 USC Section 2401(b), in the case of death.  Susan Hertz lost her husband as a result of an air traffic control error.  The probable cause of the accident was disclosed to her within a month of the death by the National Transportation and Safety Board.  She hired an attorney, however, he did not sue the FAA within the proscribed two years. 

Court awards case evaluation sanctions against medical malpractice victim

Fiorita Moravcik sued Dr. Brian Piazza, alleging that he botched her care.  A case evaluation panel recommended that Piazza and the hospital pay $220,000.00 to settle Moravcik's claim.  All parties rejected this recommendation, and Piazza prevailed at trial. When his insurer sought sanctions, though, the trial court pointed out that the insurer had never been willing to compromise the claim, and therefore the Moravcik's rejection of case evaluation did not cause Piazza's insurer to underwrite the trial. 

Court rejects technicality involving Notice of Intent

Curtis Smith attempted to sue his surgeon, Yazdin Amaria, alleging serious complications from a botched surgery.  He sought medical records from the Doctor's office, but mistakenly addressed the request to 11 South Monroe, instead of 111 South Monroe.  The office responded with the requested records, and several months later, Smith served his required Notice of Intent at the same address.  When he didn't receive an answer, he wrote to the 11 South Monroe address, again, to inquire whether the doctor received the NOI.  The doctor's insurer responded, but did not correct the address error. 

Nevertheless, when Smith filed suit, the insurer argued that the case should be dismissed because the NOI was defective (because it was not served on the proper address at 111 South Monroe) and therefore the statute of limitations had run, permanently barring the claim.  The Court of Appeals rejected this "Loophole Larry" defense by noting that 11 South Monroe was, in fact, the "last known address" by which Smith and his attorneys had communicated with the doctor and the doctor's insurers, even if it was not the "official" address. 

Post-Taylor court rejects third-party "fault" without duty

Part of the history of tort "reform" legislation was a movement to eliminate joint and several [or "deep-pocket"] liability.  The Michigan Legislature adopted a statute that achieved that end by allowing victims to recover from a particular defendant only those damages attributable to that defendant's fault.   (In this way, the innocent victim bears the weight of the "third-party's" uninsured or uncollectible share of fault.  The reform legislation also allowed the defendant in a lawsuit to blame others who are "at fault" in causing the victim's injuries, without actually suing them.  Insurers had argued that they should be able to place blame on third parties, and avoid responsibility for their "share" of responsibility, even if the third party wasn't included in the lawsuit.  They went an additional step, next, and argued that they should be able to deduct damages for the "fault" of a third-party who owed no duty to the victim.

Court upholds malpractice verdict over insurer's frivolous defenses

Tim Egeler sued Bradford Wylie, M.D. and Chelsea Area Primary Care, PLLC, after Wylie prescribed an antibiotic for Egeler's wife that is contraindicated.  His wife suffered from myasthenia gravis, and the antibiotic Ketek contains a clear product warning, advising doctors not to prescribe for M.G. patients:  the warning alerts doctors to the potential for a life-threatening respiratory collapse.

Within a half hour after taking the antibiotic Wylie prescribed, Dorothy Egeler collapsed and suffered severe anoxic brain injury before she was revived.  Nine days later she was removed from life support and passed away.  The doctor's insurer denied that the respiratory collapse was related, claiming that her death was coincidental.  The jury didn't buy that and awarded that ultimately resulted in a judgment of more than $800,000.00.  The Defendant appealed arguing several claims of error:  the Court of Appeals unanimously dismissed the claims and upheld the judgment, with minor adjustments.

Farmers' "stray voltage" case dismissed as court rejects their experts' testimony

In Schaendorf v. Consumers Energy, the Court of Appeals acknowledged that it is common knowledge and undisputed by either party that stray voltage in a barn can and will decrease milk production.  Nevertheless, it upheld the dismissal of the Plaintiff's economic damage claim, citing a lack of scientific foundation for the farmers' three experts' testimony.