TOV Injury and Safety Blog

Transportation authority entitled to dismissal of claim, despite actual notice

William Pollard suffered a broken hip on a Suburban Mobility Authority bus in Wayne County.  The bus driver was forced to call an ambulance to take Pollard to the hospital, and later the Authority mailed him an application for no fault benefits.  Pollard never returned the application, but he did file suit three months later, alleging serious injury resulting from the driver's negligence.  The Authority sought dismissal of the claim, based on Pollard's failure to provide the Authority with written notice of his injury within 60 days.  The trial court pointed to the Authority's actual knowledge of the injury and refused to dismiss the claim.  The Court of Appeals ruled that even though the Authority suffered no prejudice by the failure to mail a written notice, the case must be dismissed for failure to comply with the statute that requires notice.

Court rules "No dual domicile" for emancipated kid

Farmers Insurance Exchange and the Auto Club fought over which should provide No Fault PIP benefits to Edward Carter and his Conservator, Angela Henderson, after Carter suffered catastrophic motor vehicle accident injuries. He was a pedestrian when he was struck by a car.  He had no car or car insurance of his own, but family members with whom he sometimes stayed did have auto insurance.  The trial court heard the various facts about where Carter was living, and concluded that he was maintaining a "dual domicile" with two different family members.  The Court of Appeals rejected this outcome and sent the case back to the lower court to determine which of the places where he sometimes stayed was his "only one domicile that is the place where there is a true fixed permanent and principal establishment to which the person has the intention to return."

Insurer denied right to treat cleaning agents as "pollutant" and avoid liability coverage

Safety King Incorporated provides cleaning services and specializes in cleaning and treating ductwork.  It uses a sanitizing agent, triclosan, which is an antimicrobial found in a variety of uses, including personal hygiene products and cosmetics, although it is also categorized as a pesticide. Safety King purchased liability coverage through Hastings Mutual Insurance Company.  In 2007, a homeowner filed suit against Safety King, arguing that the children in the home suffered injury by mis-use of the sanitizing agent.  Hastings Mutual argued that it did not have to provide coverage to Safety King because its pollution exclusion applied to Safety King's use of a known pesticide.  The trial court agreed and refused to enforce the liability insurance contract.

Court allows cerebal palsy case to go forward, but not against Hospital who recommended doctor

Cynthia Soufane (Rooke) sued her obstetrician, Jung Wu, and St. Joseph Mercy Hospital, doing business as McPherson Hospital, after her son, Bryan, was born with devastating birth defects.  She claimed that Bryan suffered massive, avoidable, permanent damages (he is retarded and confined to a wheelchair with severe cerebal palsy) when Wu failed to diagnose a premature rupture of membranes or to administer antenatal steroids.  Somewhat surprisingly, mom was able to recruit prominent physicians, including the head of maternal-fetal medicine at the University of Michigan, to support her claim that Bryan would have been born relatively normal if the standard of care had been observed.  The trial court dismissed her claim, however, holding that her expert testimony was not specific enough.  The trial court also held that even though a McPherson Hospital employee had allegedly referred Soufane to Wu as "our doctor," she could not hold the Hospital accountable for his negligence.

Two former employees win battle with "defamed" home health care provider

Evergreen Home Health Care sued two former employees (a nurse and a nurse aid) in an effort to punish them for criticizing the care given by Evergreen.  It alleged breach of a non-compete agreement, defamation and interference in its legal contracts with residents and their families.  It rejected mediation-proposed settlements and nominal settlement offers before its claims were ultimately dismissed by the trial court. 

Evergreen never produced a non-compete involving one of the former employees and the court deemed the other agreement "unreasonable" and unenforcible.  It concluded the suit was filed in retaliation for the employees' complaints reaching the office of the Attorney General and were in the nature of a "spite" or vengeance action--particularly given the fact that the employees had no insurance coverage and the suit appeared intended primarily to "ruin them financially."  The Court found no "significant, material" evidentiary support for Evergreen's claim and awarded the employees  sanctions in the form of costs and fees. 

The Court of Appeals upheld the decision, and agreed with the lower court that the action was frivolous. The higher court also returned the case to the lower court to explain why it had not awarded the employees' attorney the full amount of fees that they documented.  Given the attorney's 30+ years of experience, the lower court's failure to sanction his $200.00 per hour fee appeared to the Court of Appeals to be arbitrary on its face.

Court allows evidence from litigant who had earlier claimed fifth amendment privilege

Paul Paulson claimed the fifth amendment privilege against self-incrimination in a debtor's examination arising out of his bankruptcy claim.  Later, the assignee of Old Kent Bank, who was a major creditor of his defunct business, Lakeside Machine, Inc., sued Paulson and his wife for fraud or "reckless disregard of the truth."  The wife claimed that she was simply acting in a ministerial role when she signed various loan documents for the bank, and her husband filed an affidavit supporting this claim. 

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."

Defense attorney's misconduct is not adequate grounds for new trial

The Court of Appeals this week reversed a Barry County Circuit judge and denied a new trial to a woman who claimed she sufferred injury at the hands of a JC Penney Co. hairdresser.   A jury entered verdict against the woman after her trial, but the presiding judge ordered a new trial, citing several instances of misconduct by the Defendant's attorney.  He had apparently interjected into the trial irrelevant and misleading suggestions of prior lawsuits by and against her, inaccurately suggested a prior lawsuit was dismissed on its merits, suggested a bankruptcy filing, and impeached her credibility based on her failure to acknowledge that she  was a paralegal who had once attended a Paralegal Institute in Georgia.

The appellate panel, including the insurers' advocate, Richard Bandstra, reversed the opinion of the judge who supervised the trial, concluding that the several errors of the defense attorney were harmless and cured by the judge's instructions. That appellate decision certainly won't discourage defense attorneys from wrongfully interjecting prejudicial and irrelevant matters into civil trials:  it tells insurance attorneys, "hey, if someone is bold enough to seek legal redress and you don't have a solid defense, just attack, attack, attack...throw up enough garbage and something may stick."

Trial judge's grant of new trial is reversed by Court of Appeals

Sallie Smith was allegedly hurt when Michael Lundeen made a left turn in front of her on a winter day.  He argued that she was speeding and ran a red light, but never offered that excuse to the investigating officer.  The jury found in favor of Lundeen, but the Court granted a new trial, finding that the verdict was "against the great weight of the evidence."  The judge pointed to the inconsistency of the Defendant's excuses and also the fact that the Defense attorney violated the judge's pre-trial ruling precluding him from offering weather as an excuse and from bringing up the plaintiff's denial of Social Security Disability.

California recognizes insured's right to sue insurer who destroys evidence

Lawyers USA reported this week that a California Appeals Court has recognized a cause of action in favor of an insured who could not pursue a product liability claim because his insurer, State Farm, disposed of an allegedly defective tire.  Under the facts of the case, the Court agreed that State Farm could be sued for "third party spoliation" of evidence.  Michigan's Supreme Court, while dominated by activist judges energized to protect insurance interests, have been reluctant to recognize this cause of action in Michigan.

Court dismisses litigant's claims in response to uncivil behavior

David Aslani sued State Farm and its insureds, alleging injuries resulting from a motor vehicle collision.  The Court became frustrated with the behavior of both plaintiffs and State Farm, declaring the case "a mess" and asserting control over the scheduling of discovery.  When Aslani appeared for his court-ordered deposition, however, he refused to answer certain areas of questioning and engaged in an obnoxious colloquoy with the State Farm attorney; when his behavior was challenged before the trial judge (who, by now, had had enough), he argued that while he was ordered to appear for the deposition, he wasn't ordered to answer questions.  The trial judge dismissed his injury claim and Aslani appealed.

Farm worker's appeal of jury award (and $15,000 for future pain) is rejected

Richard Latting, Jr., was struck by a tractor driven by David Clay on David Pennell's farm.  The jury allocated ten percent fault to the owner, sixty percent to the driver and thirty percent to Latting, and awarded damages totaling $33,000 for liened medical expenses, and $68,000 for Latting's personal damages.  Latting appealed the verdict on several grounds, and the owner appealed arguing the case should have been dismissed.

The ugly under-belly of lawsuit financing

Several companies now offer lawsuit financing to injury victims while their cases are pending.  Sometimes such a loan is necessary to help a family keep its "head above water," however, these loans are by no means an altruistic gesture.  In Lawsuit Financing, Inc., and Rainmaker USA, LLC v. Elias Muawad, the Court of Appeals allowed a glimpse into the problems these loans can create.  The Plaintiff loaned Lawsuit Financing loaned one of Muawad's clients $10,000.00 under a "Purchase Agreement" pursuant to which the client was obligated to pay the lender $50,000.00 when the case settled.

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.

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.

"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.

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.

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.

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. 

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.

Claim arising from punch thrown during soccer match is reinstated

Basil Esshaki suffered a broken jaw and lost four teeth when he was punched by Scott Millman during a soccer match.  He sued to recover compensation, including medical expenses, that resulted.  The Oakland County Circuit judge dismissed the case, holding that only Esshaki's testimony supported a claim that the injury was other than a typical sporting injury; the judge claimed that by engaging in the game, Esshaki waived any claim of injury resulting from the ordinary risks associated with participation.

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.

Insurer avoids claim for water damage after corporate identity change

The owners of the Alexis Manor Apartments decided to convert them to condomimiums.  To facilitate the change, they created a second corporation and transferred title to the building.  They maintained the same insurance policy with Michigan Millers.  When they suffered water damage, they attempted to collect on the policy, but were denied.  The court ultimately ruled that despite taking the owners' money for coverage, the insurer and the agent who sold the insurance owed the owners no duty to procure the proper coverage, because only the predecessor corporation was a "client" of the insurer and agent.  By accepting premiums from the new corporation, the insurer and agent did not incur any obligation to the property-owning corporation.  The case is Belfor USA Group, Inc., v. Alexis Manor Apartments, et al.

Slip and fall claim can't be blamed on toilet bowl cleaner without expert

Francis Mandel used toilet bowl cleaner to clean her bathroom floor, but then two different guests slipped and fell on the tile floor within  24 hours.  She picked up the Comet cleanser to re-clean the area and admitted that the toilet bowl cleaner apparently made the floor slippery.  The Court of Appeals dismissed the injury case brought by the second person to fall, however, suggesting that maybe Deborah Plutschuck fell because she was wearing nylon socks, "which in common experience are not known to provide friction".

Sixth Circuit (Federal Court) meeting en banc rejects Michigan evidence policy

State prisoner Kenneth Adkins alleged that he was injured by a corrections officer, Basil Wolever, in the process of removing his handcuffs.  The incident was caught on tape and and the tape was reviewed by Corrections Department officials, however, when Adkins filed a lawsuit, the videotape and still photos of the incident "could not be located".  We reported in an earlier log entry that the Federal judge hearing the case was troubled by the fact that Michigan law did not allow him to sanction Wolever's employer for "losing" this key evidence. 

West Virginia Chief Justice, recipient of $3 million contribution from litigant, reluctantly recuses himself

The U.S. Supreme Court decided in November it should take a look at the case of West Virginia Supreme Court justice, Brent Benjamin.  Benjamin accepted three million dollars worth of support from the Massey Energy Co. when he ran for office in 2004, but declined to recuse himself from cases involving Massey.  Then he voted with a 3-2 majority to overturn a significant jury verdict against the company.  Needless to say, the discussion over the merits of that verdict has been subsumed beneath the discussion over whether Massey "bought" relief in the high court.

Court reaffirms commitment to a litigant's right to be heard

Shaw Loughrige filed suit against the Civil Service Commission in order to dispute its denial of her administrative complaint.  By law, she was required to name the Commission as a Defendant, however, she mistakenly entitled her claim as one against the Michigan Department of Civil Service.  The trial court threw out her appeal on this basis, and denied her the right to amend to identify the Defendant properly, even though she had served the proper people with service.  The Defendant did not argue that it suffered prejudice as a result of her naming error.

Workers with documented chemical exposure may still be denied benefits for disability

The New York Times recently published a column addressing the gap between science, medicine and the law.  It identified employees such as Ed Abney, who can identify a valid statistical, scientific basis for their medical problem, but who cannot meet tort "reform" standards that require proof of causation for a particular individual.  This issue was less of a problem before product liability "reform" efforts lead to a series of decisions in some jurisdictions (including Michigan) holding that injury victims must establish a higher threshold of proof. 

Can a companion accompany you to a so-called "independent medical examination"

Michigan auto injury victims are currently placed in a quandary if their no fault insurer wants them to attend an IME and the victim would like to impose some reasonable conditions on his or her attendance.  Up until 2007, it was believed that injury victims enjoyed the right to secure a court's intervention and supervision to assure that so-called independent medical examinations were conducted reasonably and with proper controls.    Those rules still apply to "independent" examinations sought in the context of all other (non-no fault) circumstances. 

Michigan courts have regularly required that the exam be conducted by a specialist reasonably close to the victim or that mileage or overnight expenses be paid.  Other conditions we have seen imposed included a limit on the number or frequency of the examinations, and the right to have a companion accompany the victim or to have the victim's attorney observe the examination, for example.

Defendant cannot avail itself of unfair arbitration provision without evidence of victim's intent

One of the Federal District Judges serving in the Eastern District of Michigan had occasion this month to address a controversy regarding an alleged binding arbitration agreement.  In Estate of Vunies High v. Capital Senior Living, Judge David Lawson wrote an excellent opinion addressing the issues involved in a contract of adhesion attempting to deny residents of an assisted living facility of their right to a jury trial.

Woman's breast cancer malpractice case dismissed

In Edry v. Marc Adelman, et al., the plaintiff sued her doctor for failing to diagnose and treat breast cancer after he found a three millimeter node on her breast during a routine exam but failed to act.   The doctor didn't diagnose the problem or send her for any further tests for almost 20 months.  Ms. Edry claimed that his delay in acting from June, 2003, to February, 2005, resulted in a reduction of her probability of survival from 95 percent to less than 20 percent, and she presented an oncologist's testimony to support her claim. 

Court overturns malpractice award involving death of one twin and brain injury to a second

The Wilcoxson-Bey family filed suit against Providence Hospital, arguing that they lost one twin, and the other suffered severe brain damage, because of their treaters' failure to adequately monitor the twins' intrauterine development.  The twin fetuses shared a single amniotic sac, raising a high risk of complications--usually involving entanglement of the umbilical cords.  A judge heard the case without a jury at the request of both parties and ultimately found in favor of the family.  The Court of Appeals reversed his decision, holding that he had based it on evidence of causation that was too speculative.

EDITOR'S NOTE:  THIS DECISION HAS BEEN REVERSED ON APPEAL.  REFER TO JUNE, 2009 ENTRY DESCRIBING THE HIGH COURT'S OPINION

Clerical pharmaceutical error is not medical malpractice

In a per curium opinion in Crozier v. Henry Ford Hospital, the Court of Appeals held on December 11 that the mistaken substitution of 5 mg of a drug for the prescribed .5 mg is ordinary negligence and not subject to the medical malpractice reforms.  Crozier had received a liver transplant in 2005, and was mistakenly administered ten times the proper dosage by a hospital-system pharmacist.  The Defendant argued that the claim was a malpractice claim and could not be pursued under ordinary negligence rules.  The trial court agreed and dismissed it.  The Court of Appeals relied upon the Bryant and Kuznar cases in concluding that since this case involved no exercise of "medical judgment", and was merely a clerical error, it cannot be a malpractice claim.  The Court held that this type of case must be distinguished from cases where the wrong generic medication is administered, or an error has resulted from allegedly poor professional judgment.

Claimants' rights are extinguished by execution of allegedly-unintended Release

In Jack v. Hastings, the Court of Appeals upheld the Grand Traverse County Ciruit judge's dismissal of a follow-up contract claim brought by the owners of a condominium against their insurer.  The condo owners had suffered a substantial water damage claim and received a $34,000.00 payout by its own insurer.  The owners then pursued a negligence claim to recover more fully for their damages and achieved a settlement of an additional $180,000.00 from the at-fault party.  The owner then attempted to pursue a contract action against its own insurer, to recover the remainder of his damages. 

CT scans and MRIs may not be reliable indicators of the source of pain

On December 9, the New York Times published an article addressing the increasing controversy over abnormal findings on CT scans and MRIs.  The Times talked to the authors of two separate studies that found radiological abnormalities in just about as many healthy, pain-free individuals as were present in patients seeking treatment for pain.  The studies involved patients with knee pain and back pain.

Department of Justice study of state civil trials

In October of 2008, the Department of Justice released a study of 27,000 civil cases from 50 states.  It came to the following conclusions:

    1.  Plaintiffs won in 56 percent of all cases.

    2.  Plaintiffs were more likely to win before a judge (68 percent) than a jury (54 percent).

    3.  The median award for plaintiffs was $28,000.00.  Four percent of plaintiffs recovered more than a million dollars; 14 percent recovered more than $250,000.00.

    4.  Sixty-one percent of the trials involved "negligence" or tort claims.  Most commonly they arose from motor vehicle collisions.

    5.  Punitive damages were awarded in five percent of plaintiff cases, with the median award of punitive damages being $64,000.00.

    6.  There was a substantial drop in the number of civil trials, and in the average award, from 1992 to 2005.  In the nation's most populous 75 counties, the number of trials decreased by 72 percent and the median final award decreased by one-third.

    7.  The median size of product liability awards and medical malpractice awards did increase over this time period:  plaintiffs were less likely to get to trial, and less likely to win, but the cases that won were stronger and apparently justified a larger award.

Can a doctor who has been sued insist on a private meeting with the Plaintiff's physican?

There has been significant disagreement among authorities in Michigan over the interaction of the HIPAA privacy regulations and Michigan's statutory waiver of the physician-patient privilege that occurs when an injury victim files a civil action. Insurers for doctors, in particular, have been very aggressive in seeking the right to conduct private interviews with the other physicians who treated an alleged victim of malpractice.

Michigan Supreme Court reduces malpractice death recovery

The MIchigan Supreme Court recently decided not to hear argument on the Young v. Nandi, et al., medical malpractice wrongful death case.  The Plaintiff in Young had obtained a jury verdict against his wife's doctor.  The insurers for the doctor and his practice had raised a number of appellate issues, most of which were dismissed by the Court of Appeals.  The Supreme Court upheld the fact of the verdict and rejected the Defendant's argument that  the higher cap on non-economic damages ($500,000) can never apply to a death case because "an estate can't suffer neurological damages".  Nevertheless, the Court also reduced the verdict to the lower cap ($280,000.00) because the wife might have recovered brain function and communication ability if she had ever recovered enough to be weaned from the respirator she was placed on after the Defendant's malpractice.  That's right--her neurological dysfunction arising from being sedated and ventilated  (placed in a coma, in other words) was not "permanent" because if she hadn't died, she might have improved.

The Court is currently split, with 3 Republican activists arguing that a dead malpractice victim should always be limited to the lower ($280,000) cap on non-economic damages.  The four remaining justices essentially believe that at a minimum, a person suffering permanent, serious neurological injury before dying--which would qualify for the higher cap--retains the right to recover the higher cap even if he or she later dies prior to a verdict being rendered.

On the bright side, the entire  Court rejected all of the insurer's additional arguments of error except its claim that a hearing must be held to determine the proper award of attorneys fees to the Plaintiff arsing out of the Defendant's rejection of case evaluation.  The Court dismissed for a second time an insurer's claim that the victim's failure to schedule a hearing on the victim's Blue Cross medical expenses within 10 days of the verdict relieved it of paying  for those expenses. The Court noted that Blue Cross had been advised of its lien and the purpose of the statute had been served. (Basically, the Defendants wanted to force the victim to pay Blue Cross for the treatment the Defendant's negligence had caused, out of the victim's $280,000.00 non-economic recovery.)

Death claim dismissed, although manufacturer admits component missing or never installed

Lynette Witbeck's husband was killed when the boat he was operating suddenly veered out of control.  He struck his head on the windshield and was ejected.  The Defendants who had manufactured and sold the boat acknowledged that "the accident probably occurred after the steering link rod disconnected...because the nylon insert locknut (NIL) that was supposed to be on the threaded end of the steering link rod was missing or had not been properly installed."  Nevertheless, the court dismissed her death case because her expert drew his experience from "reliable engineering principles and methods" but not directly from experience with marine fasteners.

Study warns that trial often results in disappointment

We don't accept some of what was written in a recent study published by the Journal of Empirical Legal Studies, however, it does embody an appropriate caution regarding the risk associated with trials.  The study evaluated more than 2,000 cases and concluded that the parties would usually have done better if they had accepted the last settlement offer, rather than holding out for a verdict.  The study claims this was true for plaintiffs about 60 percent of the time.

Is my insurance agent my agent or the insurance company's agent?

The Court of Appeals issued an interesting opinion addressing this topic last week.  In Genesee Food Services, Inc. v. Meadowbrook, Inc., two judges of the Court of Appeals held that the Plaintiffs could sue their insurance agent for [allegedly] arranging inadequate insurance, despite the fact that the Plaintiffs had executed a release that held harmless Citizens Insurance and its "agents".   Genesee Foods had experienced a disastrous fire after its agent, Meadowbrook, placed them with Citizens Insurance Company.   Meadowbrook had earlier executed an agency agreement with Citizens, and its attorneys argued that by the plain language of the Release and Settlement Agreement with Citizens, Meadowbrook was immune from suit.

The Supreme Court confirms that "fault" requires "duty" to the victim

Several years ago, the Legislature revised the "deep pocket" rules for collecting compensation and eliminated much of "joint and several" liability.  The Supreme Court then adopted a new court rule which allowed defendants to formally claim that a third-party was responsible for an injury and to seek a jury determination that a share of responsibility should be formally allocated to the unrepresented party: the practical impact of this court rule was to allow a negligent party to avoid paying for the share of harm that it could deflect to the unrepresented party (and reduce the victim's recovery by that amount).  Insurers soon claimed that fault could be allocated to third-parties, even if they owed no duty to the victim.  The Supreme Court rejected this reasoning in Romain v. Frankenmuth Mutual Insurance Company.

Applying "sudden emergency" doctrine to a motorist's illness

The Supreme Court unanimously reversed a trial court's grant of summary disposition to a motorist who rear-ended the accident victim at a freeway exit. The case is White v. Taylor Distributing, and the Court affirmed the Court of Appeals' reversal of the trial court's decision in a memorandum opinion.  The defendant claimed that he "blacked out" immediately before striking the plaintiff's car and related a history of sudden onset diarrhea and fainting that started about an hour before.  He had stopped initially at a freeway rest area, but decided to drive on when he was feeling better and "did not have far to go". 

Court enforces 120-day notice provision against disabled woman

The Court of Appeals recently held that a woman could not sue the City of Taylor for inadequate road maintenance, because she did not advise the City of her injuries and her potential road claim within 120 days of the accident that caused them.  The Court held that the statutory provision allowing an injury victim additional time to report a road defect if he or she is "mentally or physically incapable of giving notice" did not apply to this woman, despite the fact that she was living in a nursing home or sleeping in a hospital bed in her living room during the first 120 days after she was hurt, as a result of spinal cord injuries and a femur fracture, several surgeries, a disabling infection, and not surprisingly, depression.

Local judge writes disappointing opinion.

Rick Griffin, a Traverse City native appointed by the Bush Administration to the Sixth Circuit, authored a disappointing opinion regarding insurance time limits this week.

Seller liabilty for implied warranty

The Sixth Circuit recently had occasion to interpret another facet of Michigan's tort "reform" legislation in Croskey v. BMW of North America.   The Court concluded that the legislature eliminated a non-manufacturing seller's liability for implied warranty of fitness in the personal injury context, making a seller liable only for its own negligence.