2010 Million-Dollar Verdicts & Settlements

Transcription

1 MICHIGAN LAWYERS WEEKLY 2010 Million-Dollar Verdicts & Settlements LARGEST VERDICTS Improper corporate sale, sexual harassment, head-on snow crash among top verdicts. page B2 LARGEST SETTLEMENTS Construction project s non-completion, sales commission disputes on this year s list. page B7 CLASS ACTIONS Accounting earnings fraud, noxious odor from sludge in landfill reported. page B19 NATIONAL VERDICTS Drug manufacturer slapped with $500 million in punitive damages. page B20 ABOUT THIS SECTION This section includes verdicts and settlements of $1 million or more obtained in 2010 that were reported to Michigan Lawyers Weekly and verified before Dec. 23, We would like to thank the attorneys who submitted their reports to Lawyers Weekly throughout While many of these reports were published in the Verdicts & Settlements section of the newspaper, others appear in this section for the first time. Lawyers Weekly acknowledges that there have been other verdicts and settlements of $1 million-plus reached in This section, however, includes only those verdicts and settlements properly reported to us and verified by deadline. If your verdict or settlement that was properly reported with all required information was mistakenly omitted from this list, please contact Douglas J. Levy at (248) or [email protected]. Settlements skyrocket past 50%; verdicts drop 87% By Douglas J. Levy Compared to 2009 s figures, the number and values of submitted verdicts, settlements and class-action lawsuits in the 2010 edition of Michigan Lawyers Weekly s Million-Dollar Verdicts & Settlements had notable peaks and valleys. There were 65 total reports submitted, which reflects a 13 percent increase over the 57 published in But, unlike 2009, which had the highest reported verdict at $300 million, there weren t any eight- and nine-figure verdicts among the 18 submitted for Rather, the verdict awards in 2010 totaled nearly $56 million an 87 percent drop from the 2009 figure of $415 million among 20 reports with the top verdict at $7.98 million. It should be noted, however, that 2009 s top verdict was $300 million; had that verdict not been included in the overall verdicts award totals, the 2009 and 2010 totals would have been nearly similar. Settlements, however, were a different story. There were 45 total reports for settlements in 2010, reflecting a 33 percent difference to the 30 published in And the monetary total topped $125 million, which was more than double the $61.2 million figure posted for As for class-action suits, there were only two reports for 2010, compared to the seven published in The $15.59 million total value was a drop of 90 percent compared to 2009 s $155.4 million, and the top class-action suit of $12.3 million was the only case among the 65 overall reports that reached eight figures. The top three jury verdicts all took place in west Michigan two in Kent County Circuit Court and one in U.S. District Court for the Western District of Michigan. The No. 1 verdict was Ward, et al. v. Idsinga, et al., which involved claims of wrongful and intentional interference with a company s interest, and aiding and abetting in the improper sale of the interest at a fire-sale price. In the Kent County trial, shareholders of a reorganized LLC, a broker of repossession services, were sent letters purporting to ask them to consider and vote on a proposed transaction with another company. However, it was contended, the board of directors and shareholder consents had already been executed, rendering any vote meaningless. As well, it was asserted, one executive had been threatened by another to push through the offer, claiming that there would be no value out of ownership in the LLC when the LLC was actually worth more than defendants claimed it was. It resulted in a $7.98 million verdict, and an appeal is expected. The federal jury in the second-highest verdict, Waldo v. Consumers Energy Co., awarded $7.9 million to a female transmission line apprentice who said she was sexually harassed and subjected to a hostile work environment over a four-year period. And in the third-highest verdict, Dykes v. Singh, $6.3 million in present and future economic and non-economic damages was awarded to a driver injured a snowy, head-on auto accident. Injuries weren t contended, but the issue of liability was, and a black-ice theory was provided but ultimately rejected by a Kent County jury for the accident s occurrence. The top three settlements were a dispute over a combined-sewer overflow project ($9.15 million) and two auto parts sales commission suits ($8.5 million and $8.3 million), while a $12.3 million settlement over lost securities values accounted for 2010 s top class-action suit. If you would like to comment on this story, please contact Douglas J. Levy at (248) or [email protected].

2 B2 Michigan Lawyers Weekly January 10, 2011 Cite 25 Mich.L.W. 226 LARGEST VERDICTS # 1 Shareholders claim improper corporate sale at fire-sale price Side deals, threats to gain control of LLC at improper value asserted $7,978,530 In a lawsuit filed in Kent County Circuit Court, plaintiffs Michael C. Ward Sr. and Robert Tinucci sought damages from defendants Scott Idsinga, Kevin Flynn, Renovo Services, LLC, and Emerald Ventures, Inc., for claims of wrongful and intentional interference with Renaissance Recovery Solutions, Inc. s interest, and aiding and abetting in the improper sale of the interest at a fire-sale price. In 2005, Recovery Solutions, Inc. (RRS), a broker of repossession services, was reorganized as Renaissance Recovery Solutions, LLC, with RRS being the holding company that owned an 83.7 percent interested in the LLC. Ward and co-plaintiff Robert Tinucci were minority shareholders in RRS, owning 26 percent and 3 percent, respectively, of its stock. Flynn was appointed to lead the LLC through his company, Emerald Ventures (EVI), and through another company, Renovo Services. Flynn owned 16.3 percent of the LLC through EVI and Renovo, then, through side deals and threats with Idsinga, RRS president, made efforts to purchase RRS 83.7 percent interest. In 2006, RRS board of directors wanted the sale, but the deal was ultimately voted down by the shareholders. In March 2007, Ward attempted to collect the $530,000 that he loaned Idsinga in June In his attempts, it was discovered that Flynn had managed to get RRS board of directors to approve the sale of RRS interest in the LLC for $892,000 which plaintiffs alleged was a means of Flynn getting the LLC rolled into Renovo for future growth in the latter company. Though a notice to RRS shareholders was sent out March 22, 2007, purporting to ask them to consider and vote on the proposed transaction, the board of directors and shareholder consents had already been executed. Plaintiffs asserted that Idsinga had been threatened by Flynn to push through the offer, claiming that RRS would never receive any value out of its ownership in the LLC when the LLC was actually worth more than defendants claimed it was. Defendants contended that plaintiffs had made illadvised investments in RRS, and because of lack of due diligence from the beginning, were not entitled to damages from the LLC s sale. The court granted partial summary disposition in plaintiffs favor, finding that the March 2007 transaction was void under RRS bylaws. Because the transaction was not legally approved, the Court found that the sale was void ab initio as a matter of law, and that Renovo had converted RRS interest. The jury found for the plaintiffs, awarding $7,978,530. Type of action: Commercial litigation, business tort Type of injuries: Sale of corporate interest at fire-sale price Name of case: Ward, et al. v. Idsinga, et al. Court/Case no./date: Kent County Circuit Court; CK; Nov. 18, 2010 Name of judge: Dennis B. Leiber Case evaluation: $4.5 million Highest offer: $2.8 million Verdict amount: $7,978,530 COURTADE Most helpful expert: Justin Cherfoli, CPA/ABV, Southfield Attorneys for plaintiffs: Bruce A. Courtade, Paul A. McCarthy, Stephen J. Hulst Attorneys for defendants: Richard A. Kay, Molly E. McManus Status: Post-judgment motions have begun; appeal expected. MCCARTHY # 2 Line worker says she was subjected to vile, abusive environment Woman asserts company did nothing to end sexual degradation $7.9 million In a lawsuit filed in U.S. District Court for the Western District of Michigan, plaintiff Theresa Waldo sought damages from defendant Consumers Energy Co. for claims of sexual harassment, hostile work environment, and violation of Title VII of the Civil Rights Act of In 2001, after four years of working in mail services and meter reading for Consumers Energy, Waldo entered a four-year, in-house apprenticeship program in the company s transmission line department. Over the course of the apprenticeship, she cited such abusive incidents as: Being told by her immediate supervisor, Jim McDonald, that she and other women were not wanted, welcomed, or accepted in the department, and that it was his intention to wash her out. Being subject to routine foul and sexually offensive language in her workplace, including ongoing derogatory references to plaintiff as a female. Being intentionally pinned, taped, and trapped for more than 20 minutes in a portable toilet by her male co-workers. On a cold, windy December day, being told to climb transmission towers and tighten bolts without the proper training and safety equipment. Degradation including being told to clean tobacco spit and chew that male crew members had spat on the floor, and being forced to urinate like the men working in the field. Her supervisor reminded her that she needed to do whatever the male crew members told her, or else she would be the first to go. Being ignored by crew members, who refused to work, help, or assist her on some of the jobs, or alert her about safety issues and hazards on the job. Plaintiff asserted that, upon complaining to supervisors, management, and human resources personnel about the egregious conduct, defendant routinely disregarded her complaints. It also was contended that her male co-workers were never interviewed, investigated, reprimanded, or otherwise disciplined following her complaints, and that the company took no immediate action. Defendant contended that plaintiff failed to establish the elements of her claim, namely that she was subjected to unwelcomed sexual harassment and that the harassment unreasonably interfered with her work performance. It also was asserted that defendant exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and that plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. The jury found for the plaintiff and awarded $400,000 in compensatory damages and $7.5 million in punitive damages. Type of action: Sexual harassment, hostile work environment, Title VII of the Civil Rights Act of 1964 Type of injuries: Psychological and emotional distress, humiliation Name of case: Waldo v. Consumers Energy Co. Court/Case no./date: U.S. District Court, Western District of Michigan; 1:06-CV-00768; Oct. 4, 2010 Name of judge: Janet T. Neff Verdict amount: $7.9 million Special damages: $400,000 compensatory damages, $7.5 million DREW punitive damages Most helpful expert: Dr. Donald Van Ostenberg, psychologist, Grand Rapids Attorneys for plaintiff: Stephen R. Drew, Adam C. Sturdivant Attorneys for defendant: P. Leni Staley, Michael T. Edwards STURDIVANT Status: On appeal. 5th 4th $3.1M $3.8M $3.7M $6.1M $4.08M $3.4M $6.5M $4.5M $7.9M $4.54M Value of the top 5 verdicts in Michigan $7M $6.2M 3rd $5.65M $15M $6.29M 2006 $14.1M 2007 $7.6M nd $9.1M $47.68M 2009 $7.9M 2010 $15.8M $35M 1st $24M $300M $7.97M $0M $25M $50M $75M $100M $125M $150M $175M $200M $225M $250M $275M $300M

3 Cite 25 Mich.L.W. 227 Woman suffers extensive injuries in snowy crash # 3 Witness says driver tried to pass front car; black ice asserted by defense $6,291,666 In a lawsuit filed in Kent County Circuit Court, plaintiff Angela E. Dykes sought compensatory damages from defendant Tarlochan Singh for injuries sustained in an auto accident. Dykes and Singh were driving in opposite directions on M-57 between Grand Rapids and Greenville in snowy conditions. Singh lost control of his vehicle, crossed the centerline of the highway, and hit Dykes head-on. Dykes underwent multiple orthopedic surgeries, followed by intensive care for the first couple of weeks, then hospitalization for 2½ months. Hardware was put into both femurs; both feet and ankles were fractured; there were thoracic and cervical spine injuries and hip, hand and arm damage; and the right knee cap was disfigured. Long scars from multiple surgeries were sustained. A witness who was following Dykes contended that Singh was trying to pass the vehicle in front of him, at one point pulling onto the shoulder to get a view of the traffic that slowed ahead because of the weather conditions. Plaintiff had a successful counseling practice, was an adjunct professor at Spring Arbor University, and was working on a degree in nursing. Defendant did not assert against plaintiff s injuries. However, the issue of liability was contended, and a blackice theory was provided for the accident s occurrence. The jury found for the plaintiff and awarded $6,291,666 in past, present and future economic and non-economic damages. Type of action: Auto personal injury Type of injuries: Fractures in femurs, ankles, foot, arm, hands, hip, spine and rib, scarring Name of case: Dykes v. Singh Court/Case no./date: Kent County Circuit Court; NI; May 27, 2010 Name of judge: Donald A. Johnston Demand: $1.5 million Highest offer: $135,000 Verdict amount: $6,291,666 Special damages: $125,000 (future lost income) Most helpful experts: Dr. James R. Ringler, orthopedic surgeon, Grand Rapids; Dr. Martin Waalkes, neurosurgeon, Grand Rapids Insurance carrier: AAA Michigan Attorney for plaintiff: M. Dennis Esmay Attorney for defendant: Kenneth B. Breese Status: On appeal. # 4 Blue Cross breaches carve-out plan contract Business dropped from network after Ford warned to not take deal $4,549,345 In a lawsuit filed in Oakland County Circuit Court, plaintiff TheraMatrix Services, Inc. asserted Blue Cross Blue Shield of Michigan committed breach of contract and tortious interference with economic and business relationships. TheraMatrix, a Pontiac-based outpatient physical therapy company, had been part of Blue Cross network of participating providers. In 2003, TheraMatrix worked with Ford Motor Co. on an outpatient physicaltherapy network carve-out plan, as a means of saving Ford money on its health insurance costs compared to what it had been paying with Blue Cross. Blue Cross agreed to be a third-party administrator January 10, 2011 for the program, but backed out of the agreement in February 2005 (a substitute third-party administrator was found thereafter). TheraMatrix alleged that in late 2004 and early 2005, Blue Cross officials told Ford that if it went ahead with the carve-out program, the automaker could lose its hospital discounts. In April 2006, 15 days after DaimlerChrysler announced it was going to pursue a similar carve-out plan with TheraMatrix, Blue Cross terminated TheraMatrix as a participating provider for its health plans in Michigan. Blue Cross then sent letters to insurance agents, doctors and companies alerting them of this, but did not indicate reasons why. Eighteen months later, Blue Cross restored TheraMatrix to the participating provider list, but at the bottom of the list. TheraMatrix asserted Blue Cross breached its agreement to be third-party administrator to the Ford program. It was further asserted that Blue Cross actions caused the Ford program to be scaled back to a statewide plan instead of nationwide, and that by doing so, there was tortious interference. As well, it was argued that the DaimlerChrysler deal did not happen because of defendant s tortious interference. Blue Cross contended that it did not have a third-party administrator contract with TheraMatrix for the Ford matter, and, further, if there was a breach of it, it was not the cause for TheraMatrix s damages associated with Ford s scaling back of its relationship with plaintiff. It was further contended that there was not a business relationship that existed between TheraMatrix and DaimlerChrysler, and that Blue Cross was not the precipitating cause that would have interfered with such a relationship. The jury found for the TheraMatrix, and awarded $4,100,293 on the breach of contract claim and $449,052 on the tortious interference claim. Type of action: Breach of contract, tortious interference with economic and business relationships Type of injuries: Lost profits and business, damaged business reputation Name of case: TheraMatrix Services, Inc. v. Blue Cross Blue Shield of Michigan YOUNG Court/Case no./date: Oakland County Circuit Court; CZ; July 22, 2010 Name of judge: Edward Avadenka Verdict amount: $4,549,345 Most helpful expert: Barry Lefkowitz, financial consultant, Southfield MACWILLIAMS Attorneys for plaintiff: Rodger D. Young, Sara K. MacWilliams, Joel H. Serlin Attorney for defendant: Laurine S. Parmely Key to winning: Use of adverse witnesses in crossexamination Status: Judgment and award of $960,260 in mediation sanctions are on appeal. # 5 Reseller says DHL forced business to close Decision to end domestic air, ground services cited as breach of contract $4,084,886 In a lawsuit filed in Lenawee County Circuit Court, plaintiffs The Service Source, Inc. and The Service Source Franchise, LLC sought economic damages from defendant DHL Express (USA), Inc. for breach of contract. Adrian-based Service Source had been in business 15 years as a reseller for shipping services, focusing exclusively on small businesses that needed domestic-only shipping. Service Source had a contract to use Airborne Express Delivery Services exclusively, and when DHL bought Airborne in 2003, DHL continued the rolling five-year contract that Service Source had established with Airborne. On Nov. 10, 2008, DHL announced it would cease all domestic shipping service Jan. 30, Service Source, which was in the process of expanding into a franchise, attempted to find a substitute shipping service to offer its customers, but to no avail, and eventually ceased business functions. Plaintiffs asserted that defendant had an obligation to fulfill the five-year contract, and contended that there was financial loss that could not be avoided because of it. Defendant contended that it was at its sole discretion as to where in the United States DHL s services would be provided. It was further asserted that plaintiff failed to make timely payments to defendant, and that there was an outstanding debt of $673,211 owed for services rendered. After granting summary disposition, the judge found for the plaintiffs and awarded $4,084,886 in damages and pre-judgment interest. Type of action: Breach of contract Type of injuries: Lost profits Name of case: The Service Source, Inc., et al. v. DHL Express (USA), Inc. Court/Case no./date: Lenawee County Circuit Court; CK; July 12, 2010 Tried before: Judge MORGAN Name of judge: Margaret M.S. Noe Demand: $3.5 million Highest offer: $250,000 Verdict amount: $4,084,886 Most helpful expert: Bruce Knapp, accountant, Troy Attorneys for plaintiff: Courtney E. Morgan Jr., Keefe A. Brooks BROOKS Attorney for defendant: Withheld Key to winning: Clear presentation of damage proofs Status: On appeal. Family says ordinance singled them out Council decision to rezone only their land was discriminatory $3.6 million In a lawsuit filed in U.S. District Court, Eastern District of Michigan-Northern Division, plaintiffs Ronald E. Loesel, Arthur Loesel and Valerian Nowak asserted that defendant city of Frankenmuth violated their 14th Amendment equal protection rights by improperly rezoning land they owned. In May 2005, the Loesels were in agreement to sell 37 1 /2 acres of property to Wal-Mart for $4 million. However, in December 2005, the city passed an ordinance restricting the size of buildings inside the zoning area that their land sits on to 65,000 square feet. As a result, Wal- Mart broke off the agreement. Plaintiffs asserted that City Manager Charles Graham, working with a Michigan Lawyers Weekly B3 grassroots group opposed to the retailer, worked to come up with justified ordinance options to prevent Wal-Mart from building a store in the city. It was further contended that the city chose a less restrictive method, where the ordinance, which would not allow for anything more than 65,000 square feet to be developed, would only be applied to the city s Commercial Local Planned Unit Development zone (CL-PUD). That zone, the majority of which is made up of the Loesels property, was the only plot large enough to house a store of Wal-Mart s 100,000- to 145,000-square-foot size. Additionally, it was asserted, the city was more concerned with the interests of several other local businesses including the 320,000-square-foot Bronner s Christmas store and never took the Loesels interests into consideration. Defendant contended that the city s future-land-use master plan for the CL-PUD had never called for largeformat retailers to be built there, as larger parcels would be needed to accommodate parking, stormwater retention and traffic circulation, among other factors. It was further asserted that Wal-Mart never asked for injunctive relief or for the ordinance to be struck down upon its passing; as such, it was contended, the retailer didn t take the matter seriously enough to fight for it. The jury found for the plaintiffs and awarded $3.6 million. Type of action: Violation of 14th Amendment equal protection rights Type of injuries: Discrimination, loss of land sale # 6 KOCHANOWSKI YOUNG Largest Verdicts continued on page 4

4 B4 Michigan Lawyers Weekly January 10, 2011 Cite 25 Mich.L.W. 228 LARGEST VERDICTS Continued from page 3 Name of case: Loesel, et al., v. City of Frankenmuth Court/Case no./date: U.S. District Court, Eastern District of Michigan, Northern Division; BC; March 4, 2010 Name of judge: Thomas L. Ludington Demand: $3.9 million Verdict amount: $3.6 million Attorneys for plaintiff: Andrew J. Kochanowski, Jesse Young Attorney for defendant: David K. Otis Status: On appeal. Couple awarded pain, suffering in crash Driver says he suffered fractured vertebrae,tbi and depression $3.5 million In a lawsuit filed in Jackson County Circuit Court, plaintiffs James W. Fairley and Kim Fairley sought compensatory damages from defendant Schiber Truck Co. and defendant Ray D. Kissick for injuries sustained in an auto-truck accident. On April 4, 2008, James Fairley was stopped on Spring Arbor Road at Emerson in Jackson County, waiting to make a left turn. His turn signal was activated. At the same time, a semi-truck, owned by Schiber Truck and driven by Kissick, was driving west on Spring Arbor. As Kissick approached the intersection of Emerson, he failed to stop and struck Fairley s vehicle in the rear, causing it to spin around and cross the centerline, where Fairley was struck by another vehicle. Fairley suffered a traumatic brain injury, depression and two fractured vertebrae. He walks with a cane and cannot dance, bowl or read as he once did. Defendant s insurance company, Zurich, took the position that a Jackson County jury would not award significant pain and suffering damages, essentially forcing, according to plaintiff s counsel, the case to trial. Plaintiffs waived an $800,000 excess economic loss claim, as plaintiff was on Social Security disability, and the amount after the set-off would have come to approximately $160,000. The jury returned a $3.5 million jury verdict solely for pain and suffering, and there will be no collateral source reductions from the verdict amount. Type of action: Third-party auto negligence in truck accident Type of injuries: Traumatic brain injury, depression, two fractured vertebrae Name of case: Fairley, et al. v. Schiber Truck Co., et al. Court/Case no./date: Jackson County Circuit Court; NI; Dec. 15, 2010 Name of judge: Thomas Wilson Demand: $2.4 million Highest offer: $1 million Verdict amount: $3.5 million Insurance carrier: Zurich Attorneys for plaintiff: Steven M. Gursten, Thomas W. James Attorneys for defendant: John Gillooly, GURSTEN Robert A. Obringer Status: The parties agreed to waive appeal in exchange for a high-low, no-appeal agreement placed on the record on the last day of trial. FAST RESEARCH. FAST DELIVERY. The full text of any opinion summarized in Lawyers Weekly can be sent directly to you. Place your order with the LW number at the end of the summary. Call # 7 Asset values on bankruptcy questioned Adversary proceeding filed when discrepancies are discovered $2.905 million In a lawsuit filed in U.S. Bankruptcy Court for the Eastern District of Michigan, Southern Division, plaintiff The State Bank asserted adversary proceeding for fraud under 11 U.S.C. 523(a)(2)(B) against defendant John M. Mansour. The State Bank lent money to various business enterprises owned or controlled by Mansour, a real estate developer, for many years. Two of these loans, a line of credit extended by The State Bank to J.M. Developments, Inc. in the amount of $500,000, and a construction loan extended by The State Bank to Landings at Crane s Cove, L.L.C. in the amount of $2,405,000, were the subject matter of the litigation. Mansour guaranteed both obligations because of his ownership interest in each borrower. The State Bank required defendant to submit annually a personal financial statement listing assets and liabilities, and Mansour signed these personal financial statements as truthful and accurate. When Mansour filed for bankruptcy, The State Bank reviewed his bankruptcy schedules, compared with defendant s latest personal financial statement. It was noticed that the values of assets were a total of more than $3 million lower on the bankruptcy schedules as contrasted with the latest personal financial statement, as of the same date. This caused the bank to investigate further, and further discrepancies, such as defendant s unpaid personal gambling liability, were discovered. The State Bank filed an adversary proceeding in Mansour s bankruptcy, seeking a judgment that defendant s liabilities to the bank were non-dischargeable because of Mansour s fraud pursuant to 11 U.S.C 523(a)(2)(B). After a five-day trial, the court found in plaintiff s favor and awarded $2,905,000. Type of action: Adversary proceeding in bankruptcy Name of case: The State Bank v. Mansour Court/Case no./date: U.S. Bankruptcy Court, Eastern District of Michigan, Southern Division; dof; Sept. 30, 2010 Tried before: Judge Name of judge: Daniel S. Opperman Verdict amount: $2,905 million Attorneys for plaintiff: Stephen P. Dunn, Stephanie N. Olsen Attorney for defendant: Maynard F. Newman Status: On appeal. # 8 # 9 Woman runs stop sign; kills her, other driver Doctor who read EKG says woman blacked out at construction site $2 million In an auto negligence lawsuit filed in St. Clair County Circuit Court, plaintiff Linda Hija, personal representative of the Estate of Frank Joseph Hija, sought damages from defendants Edw. C. Levy Co., d/b/a Ace Asphalt and Paving Co.; Give-Em a Brake Safety, Inc.; and the Estate of Marie C. Colden, following a fatal auto accident. On Oct. 17, 2007, Colden, 83, drove through a road construction area while it was dark outside. Road workers were starting to set up for the day. Colden ran the stop sign, hitting the 54-yar-old Hija s car and killing both drivers. The intersection had always been dead-ended to form a T, but prior to the construction job; a free-flow ramp existed to allow motorists to travel to their right and not have to stop at a stop sign. The ramp was removed before the accident occurred; meaning motorists now had to stop at the intersection to turn right. A permanent Right Lane Must Turn Right Sign had been installed by Give-Em a Brake 31 feet in front of a temporary stop sign, which was on skids and held down by sandbags. Give-Em a Brake s workers had installed the permanent posts for the permanent stop sign, but left for the day without mounting the sign. Defense for Colden contended that the stop sign was blocked due to the negligence of the contractors, causing the accident, and, along with estate for Hija, sued Ace Asphalt and Give-Em a Brake. Defendants put forth a blackout defense, and relied on the doctor who read the EKG and opined that defendant s decedent had a syncopal episode. The jury issued a $2 million verdict for the plaintiff, assigning 60 percent negligence to Colden and 40 percent to the other defendants. Type of action: Auto negligence Type of injuries: Death Name of case: Hija, et al. v. Edw. C. Levy Co., et al. Court/Case no./date: St. Clair County Circuit Court; NI; June 4, 2010 Name of judge: Peter E. Deegan Verdict amount: $2 million Most helpful experts: James Valenta, Ann Arbor; Suzen Oliver, Brighton Attorney for plaintiff: Jason A. Waechter Attorneys for defendant: Michael P. Hindelang, James F. Hunt Status: Claims against Give-Em a Brake and Ace Asphalt settled four days before trial for $1 million. Colden had policy limits of $500,000, which were tendered to after jury verdict. The total payout for the claim was $1,557,500, which included $57,500 from two other construction companies that settled early in the case. # 10 Company owner claims fraud in agreement Joint venture skewed profits and control of demolition project $1.94 million In a lawsuit filed in Wayne County Circuit Court, plaintiff NTW Sales LLC contended that defendant North American Dismantling Corp. had committed fraud in connection with the execution of a joint venture agreement, which changed the parties agreement from a 50/50 split to one giving North American 65 percent of the profits and control of the project. The two parties were to perform a combination metal recycling and demolition project at a large vacant paper mill in Berlin, N.H. The owner of NTW Sales claimed that counsel for the joint venture, under the direction of the defendant, deceived the plaintiff regarding the contents of one of the documents he signed at the closing of the agreement. At the conclusion of the four-week trial, the jury found that North American had indeed committed fraud in connection with the execution of the written joint venture agreement, voided the document and enforced the parties original verbal 50/50 agreement. NTW also was awarded half of the remaining $4 million of proceeds from the project, which had been placed in a court ordered escrow account. The jury also found that NTW had the right to 50 percent of the future revenue from the project, which could be as much as $12 million. As well, the jury found against all of North American s counterclaim, wherein it sought the full $4 million escrow and recovery of an additional $1.6 million that it claimed was profit wrongfully retained from the project. Type of action: Fraud Type of injuries: Loss of income Name of case: NTW Sales LLC v. North American Dismantling Group, et al. Court/case no./date: Wayne County Circuit Court; CK; June 4, 2010 Name of judge: Jeanne Stempien Verdict: $1,947,735 to NTW Sales; zero on North American s counterclaim Attorney for plaintiff: R. Christopher Cataldo Attorney for defendant: George M. Head Status: Case settled.

5 Cite 25 Mich.L.W. 229 Plaintiff seeks benefits for 1994 brain injury In fifth suit, carrier cites unreasonable proof by experts of impairment $1,915,855 In an automobile no-fault lawsuit filed in U.S. District Court for the Eastern District of Michigan, plaintiff Ricardo Villaflor sought attendant-care benefits from defendant State Farm Mutual Automobile Insurance Co. for a brain injury sustained in a 1994 accident. On Jan. 19, 1994, Villaflor was in an auto accident in Highland Park. The Detroit Medical Center chief of neurosurgery at the time said Villaflor suffered a significant closed-head injury, and diagnosed post-concussive syndrome requiring cognitive evaluation and therapy. State Farm was told by Dr. Gerald Shiener, Villaflor s psychiatrist, that Villaflor would need 24-hour attendant care because of poor impulse control and poor judgment. However, State Farm cut off Villaflor s benefits eight months after the accident, and was ordered in a July 1996 lawsuit to continue attendant-care benefits. When benefits were cut off two months after that, another lawsuit arose in 1997 to have past benefits paid for, for which State Farm settled on the eve of trial. State Farm stopped benefits once again in August 2003, and another lawsuit was filed, resulting in a September 2006 verdict in Villaflor s favor. State Farm appealed the verdict, but the 6th U.S. Circuit Court of Appeals upheld it. State Farm then paid for attendant-care benefits for the next eight months, but stopped payments in November Defendant contended through expert medical examiners that it was uncertain that plaintiff incurred a brain injury, and that reasonable proof of medical attendant-care services was not provided in the claim. Plaintiff asserted that examination by several State Farm doctors over the years concluded he suffered a brain injury, and that no-fault attendant-care benefits were to be provided per MCL The jury found for the plaintiff and awarded $1,209,036 on May 21, A final judgment of $1,915,855 including attorney fees of $469,000 was entered Oct. 5, Type of action: Auto no-fault Type of injuries: Traumatic brain injury # 11 Name of case: Villaflor v. State Farm Mutual Automobile Insurance Co. Court/Case no./date: U.S. District Court, Eastern District of Michigan; 2:07-CV-13939; May 21, 2010 (final judgment Oct. 5, 2010) Name of judge: Bernard A. Friedman Demand: $1 million Highest offer: $20,000 plus release of lifetime benefits Verdict amount: $1,209,036 Final judgment: $1,915,855 ANDREWS (including attorney fees of $469,000) Most helpful experts: Dr. Gerald Shiener, forensic psychiatry, Birmingham; Dr. Robert B. Ancell, vocational rehabilitator, Southfield Attorney for plaintiff: Nicholas S. Andrews Attorney for defendant: James F. Hewson Key to winning: Providing a color-coded timeline highlighting when the accident took place; litigation points over the years; medical expert analyses; and when defendant did and didn t provide attendant-care benefits Status: On appeal. # 12 Hospital accused of delaying C-section Defense points to lack of amniotic fluid, mom s pot use as contributors to CP $1,500,002 In a lawsuit filed in Wayne County Circuit, Ebony White, plaintiff mother of plaintiff minor Ma Kieran Moss, sought compensatory damages from defendant Hutzel Hospital following a birth that, plaintiff January 10, 2011 claimed, resulted in birth trauma. On Jan. 4, 2006, White went to Hutzel with contractions, but did not know her due date. She had no prenatal care, and gave a history of smoking marijuana during her pregnancy. An ultrasound was performed, and it was determined that the baby was full term. However, there was no amniotic fluid present. Despite a concerning pattern on the electronic fetal monitoring as noted in the records, and despite the mother giving consent for a C-section almost immediately, the baby was not delivered for more than six hours. He was pale at birth, and required immediate resuscitation. He was transferred to the NICU for six days, then to UM for extracorporeal membrane oxygenation therapy. He was diagnosed with cerebral palsy at 3 months old. Plaintiff s OB/GYN experts testified that because this was a high-risk patient, with a non-reassuring fetal heart rate pattern, a C-section should have been performed much earlier; instead, it was asserted, defendant delayed more than three hours. Plaintiff s causation expert testified that all of the child s injuries could have been prevented had delivery taken place even one hour earlier. Defendant contended the child s brain damage was caused by either an infection or persistent pulmonary hypertension in the pre-natal period and/or events following the child s birth. It also was asserted that the mother s lack of pre-natal care, use of marijuana, and absence of amniotic fluid were potential causes of the child s injuries. The jury found for the plaintiff and awarded $1,500,002. Type of action: Medical malpractice, birth trauma Type of injuries: Cerebral palsy, spastic quadriplegia Name of case: Ma Kieran Moss, et al. v. Hutzel Hospital Court/Case no./date: Wayne County Circuit; NH; Dec. 17, 2010 Name of judge: Gershwin Drain Demand: $350,000 Verdict amount: $1,500,002 Most helpful experts: Dr. Ronald Zack, OB/GYN, Livonia; Dr. Michael Berke, Livonia; Dr. Ronald Gabriel, pediatric neurology, Los Angeles Insurance carrier: DMC Attorney for plaintiff: Ronald S. Bowling Attorneys for defendant: Charles W. Fisher, Thomas R. Shimmel Status: Defense plans to appeal. # 13 Neither admits nor denies is disputed Co-defendant s answers deemed admissions in mortgage fraud scheme $1.5 million In a lawsuit filed in Oakland County Circuit Court, plaintiff Joseph D. Blouin sought damages from defendants Robert V. Yeo Jr., Ricardo del Valle, American Security Real Estate Partners LLC and Michael R. Sayers from a fraud scheme. The scheme involved defendants request for a shortterm loan to provide emergency financing for a real estate transaction that had purportedly fallen through. As security for the loan, defendants gave plaintiff mortgages on two commercial properties. In reality, there was no pending real estate transaction, and the mortgages had been signed by entities that had no ownership interest in the properties. Plaintiff obtained default judgments against Yeo, del Valle and American Securities after the court granted plaintiff s motion to strike their answers on the basis that they had each altered the signature block on Sayers answer and filed it as their own. While Sayers had filed an answer, it was largely nonresponsive in that it consisted of a nearly unwavering recitation of the statement Defendant neither admits nor denies but leaves Plaintiff to his proofs. Plaintiff then filed a motion for summary judgment pursuant to MCR 2.116(C)(9) and (10), citing, inter alia, the Michigan Supreme Court decision in Pitcher v. Pitcher, 314 Mich. 648 (1946), which held that where a defendant answers a plaintiff s charges by neither admitting nor denying them, it shall be considered an admission on all matters of which the defendant must be considered to have personal knowledge. Because the fraud allegations against Sayers were specific with respect to his actions, his responses of neither admits nor denies were deemed admissions. The court granted summary judgment against Sayers on each count against him, including fraud, aiding and Michigan Lawyers Weekly B5 abetting fraud, aiding and abetting breach of fiduciary duty, civil conspiracy and conversion. Plaintiff was awarded $1.5 million Type of action: General civil Type of injuries: Fraud loss Name of case: Blouin v. Yeo, et al. Court/Case no./date: Oakland County Circuit Court; CZ; May 12, 2010 Name of judge: Daniel P. O Brien Highest offer: $20,000 Verdict amount: $1.5 million Attorney for plaintiff: Sara E.D. Fazio Status: On appeal. FAZIO # 14 Tumor bleeds into brain, causes coma Estate says decedent s condition left untreated 3 days after admission $1,419,149 In a medical-malpractice and wrongful death lawsuit filed in Bay County Circuit Court, plaintiff Allynn Jo Woodard, personal representative of the Estate of Chester L. Woodard asserted that defendants Dr. Dhana Dev Shrestha, Dr. William Lawrence Howard and Bay Area Health Clinic were negligent by not correctly handling a brain tumor. On Feb. 17, 2003, Chester Woodard, 49, went to Bay Medical Center with signs and symptoms of a pituitary mass, a potentially life-threatening but curable brain tumor. A brain CAT scan and MRI confirmed the condition. Shrestha, Woodard s family doctor, hospitalized him at Bay Medical Center. On Feb. 18, Dr. Gerald Russell Schell, a neurosurgeon, determined that Woodard should probably be on steroids, and if his condition worsened from an endochronologic or visual standpoint, he would need urgent surgery. On Feb. 20, at 4 a.m., Woodard s condition was noted to have worsened. Shrestha was contacted by phone about 5:35 a.m. regarding Woodard s neuro status. At 9:15 a.m., Woodard was transferred to ICU, where an intubation failed. At 10:45 a.m., Schell determined that urgent surgery was necessary, and Woodard was sent to the OR. Surgery began for a pituitary apoplexy at 11:38 a.m., when it was discovered that the tumor bled into the pituitary region of his brain. Surgery ended at 2:52 p.m., and Woodard remained in a coma. He was discharged April 30 to an extended care facility, and died on May 15, Plaintiff asserted that Woodard s brain tumor was not correctly treated, and his condition was untreated for three days following admission to the hospital. Plaintiff s experts testified that Woodard s life would have been saved had he been correctly cared for by Shrestha. Defendant contended that pituitary apoplexy was not within Shrestha s expertise to treat and, as such, called for the appropriate specialists (infectious disease, neurology, neurosurgery, and endocrinology) to care for the pituitary tumor. Further, it was asserted, the specialists consulted by Shrestha asserted that surgery was necessarily delayed because of a concern for bacterial meningitis, and that it would be inappropriate to do brain surgery in the presence of such a suspected infection. The jury returned a $1,419,149 verdict for the plaintiff s estate. Type of action: Medical malpractice, wrongful death Type of injuries: Coma, death Name of case: Woodard, et al., v. Lawrence, et al. Court/Case no./date: Bay County Circuit Court; NH-C; Feb. 1, 2010 Name of judge: William J. Caprathe Demand: $50,000 Verdict amount: $1,419,149 Insurance carrier: ProNational Attorney for plaintiff: Albert J. Dib Status: Case settled. Largest Verdicts continued on page 6

6 B6 Michigan Lawyers Weekly January 10, 2011 Cite 25 Mich.L.W. 230 LARGEST VERDICTS Continued from page 5 # 15 Garbage truck accident causes impairment Defense cites comparable negligence; jury disagrees $1.4 million In a lawsuit filed in Wayne County Circuit Court, plaintiff Teresa Casillas sought damages from defendant City of Detroit following a minivan/garbage truck accident. Casillas was driving a number of children home from school in southwest Detroit. When she got onto Colonial Street, she began to follow a city garbage truck. About two blocks later, the truck stopped and the plaintiff stopped, but then the truck backed into her, totaling Casillas minivan and injuring her. Casillas eventually was disabled from her job as an office cleaner and, ultimately, permanently disabled. She has undergone extensive neck and back surgeries. Plaintiff filed for default against all defendants who had failed to answer interrogatories, request to produce, produce liability witnesses for deposition or answer any discovery. On the eve of trial, defense counsel refused to admit liability and plaintiff moved for default. Default was granted on liability, but defense was allowed to argue comparative fault. Defendant contended plaintiff was following too close to the truck, and if she was at the appropriate distance from the truck, the accident would not have happened. Further, counsel argued for, and received, an instruction of presumption of negligence for violation of statute. The jury found that plaintiff was negligent, but said that her negligence was not a cause of her injuries, and awarded $1.4 million in past noneconomic and future economic and noneconomic damages. Type of action: Auto negligence Type of injuries: Cervical and lumbar fusions Name of case: Casillas v. City of Detroit, et al. Court/Case no./date: Wayne County Circuit Court; NO; Feb. 24, 2010 Name of judge: Gershwin A. Drain Demand: $1 million Highest offer: $500,000 Verdict amount: $1.4 million Insurance carrier: Self-insured Attorney for plaintiff: Daniel Romano Status: Case closed. # 16 Firm accused of not taking action Inaction is asserted after $1 millionplus in county funds are stolen $1,216,537 In a lawsuit filed in Iosco County Circuit Court, plaintiffs County of Alcona and the Alcona County Board of Commissioners asserted that defendants Robson Accounting, Inc. and The Rehmann Group, LLC breached the standard of care by not addressing weaknesses in the financial procedures of the county treasurer s office. Robson and Rehmann were the auditors that conducted annual audits for Alcona County for a number of years. During that time, the former county treasurer changed financial procedures in the treasurer s office to eliminate a second person reconciling the books. Additional material weaknesses in the financial procedures of the treasurer s office were noted in the field notes of the auditors. However, plaintiffs asserted, Robson and Rehmann failed to make any recommendations to plaintiffs about appropriate measures that should have been taken to address these weaknesses. As a result, the former treasurer was able to wire more than $1 million in county funds into his personal accounts. Though a small amount of those funds were recovered, most were wired to advanced-fee scam artists out of Nigeria. The weaknesses in financial procedures in the treasurer s office were either present or developed during the period that Defendants were conducting audits for Plaintiff. The current treasurer and a majority of the county commissioners testified they would have been in favor of changing the procedures had defendants made any recommendations about these weaknesses. Defendants contended that plaintiffs were aware of the conditions and chose not to do anything about them. Plaintiffs asserted that they relied on defendants to perform their audits within the standard of care, and that included making recommendations to remove the material weaknesses that were present. Plaintiffs expert testified that failing to make such recommendations to Plaintiff was a breach of the standard of care. The jury for the plaintiffs and awarded $1 million, with the court approving $216,537 in case evaluation sanctions. Type of action: Accounting malpractice Type of injuries: Theft of county funds Name of case: County of Alcona, et al. v. Robson Accounting, Inc., et al Court/Case no./date: Iosco County Circuit Court; NM; Aug. 30, 2010 Name of judge: William F. Myles Verdict amount: $1,216,537 Special damages: $216,537 case evaluation sanctions Most helpful expert: Gary Leeman, CPA, Farmington Hills Attorneys for plaintiff: L. Neal Kennedy, Jerald K. Juncker Status: Judgment with case evaluation sanctions entered. Post-trial motions complete. Defendant has filed an appeal. # 17 Woman, 75, is severely burned in ICU accident Thermocauterization unit gets too close to oxygen mask, causes flash fire $1.215 million In a lawsuit filed in Macomb County Circuit Court, plaintiffs Edith and Michael Torres, as co-next friends of Valerija Milosevic, sought economic and non-economic damages from Henry Ford Macomb Hospital for injuries suffered following a fall and a fire. Milosevic, 75, was admitted to Henry Ford Macomb on Oct. 22, 2007, as she was suffering a heart attack. She was stabilized, then admitted to the ICU and was diagnosed of anoxic brain injury by her treating physicians. Five days later, her condition was improving, but because she was heavily medicated and agitated, she was restrained to her bed. When a nurse removed the restraints, Milosevic fell and sustained a massive cut over her left eye and forehead. A resident attempted to cauterize the wound, in an effort to stop the bleeding, but failed to turn off the pure oxygen flowing into her non-rebreather mask. When the resident applied a thermocauterization device, which reached up to 900 degrees, it caused a flash fire, resulting in first- and second-degree burns, and a medically induced coma that lasted several weeks. She required around-theclock care at a nursing home once she was revived. Defendant argued and filed a motion early in the case regarding whether the fire accident was ordinary negligence or medical malpractice, and the court ruled in defendant s favor early in discovery stating that medical malpractice law would apply to this action. The parties then proceeded to trial on consolidated cases one on the performance of the cauterization procedure that led to the fire, the other case for ordinary negligence relating to whether the bedrails were up or down when plaintiff exited her bed and fell. Defendant argued that the performance of the cauterization procedure by their resident physician, which resulted in a flash fire, was within the standard of care applicable to the field of general surgery. The jury found for the plaintiff and awarded $165,000 in economic damages and $1.05 million in non-economic damages based on the medical malpractice claim, for a total of $1.215 million. The jury ruled against the claim of ordinary negligence for the fall from the bed. Type of action: Medical malpractice, ordinary negligence Type of injuries: Facial burns and scarring with extended recovery Name of case: Torres, et al. v. Henry Ford Macomb Hospital Court/Case no./date: Macomb County Circuit Court; 4621-NH, NM; July 8, 2010 Name of judge: Diane M. Druzinski Verdict amount: $1.215 million Most helpful expert: Dr. Steven Swartz, general surgery, Richmond, Va. Attorneys for plaintiff: Scott Weidenfeller, David J. Winter, Lisa Esser Attorneys for defendant: Lee A. Stevens, Barbara A. Roulo Status: Entry of judgment being worked out. No settlement or appeal yet. WEIDENFELLER WINTER # 18 Malpractice claimed over wrong assessment Surgery center site didn t have egress, but attorney said otherwise $1 million In a legal-malpractice lawsuit filed in Oakland County Circuit Court, plaintiff MD Property Management, LLC sought damages from defendants Laurence E. Winkour and Dickinson Wright PLLC after an easement on a property was inaccurately assessed for dedicated egress. MD Property Management was formed as a limited liability company to investigate and acquire a suitable property for construction of an ambulatory surgery center. The individual members of the LLC are physicians, primarily involved in ophthalmologic and plastic surgery. The LLC consulted with attorney Winkour and law firm Dickinson Wright while the acquisition was still in the investigative stages, and the attorneys were involved in looking at and evaluating multiple potential sites for the surgery center. A building was selected in Troy, and the defendants were responsible for all of the title work, contracts, and legal work associated with the purchase of the building, negotiations with the seller and finalization of the surgery center plans. Nine months after the multimillion-dollar site was purchased, and after the LLC had invested an additional $3 million into building improvements, the LLC was advised by a third party that the primary easement for egress out of the parking lot to the main road (Maple Road) was not accessible to the building and its patrons. On further investigation, it was determined that an easement for dedicated egress from the patient parking lot was non-existent. Plaintiffs asserted that, during the acquisition process, the individual physician members of the LLC had been repeatedly advised that such an easement existed and that the building would benefit from the existence of the easement in perpetuity. It further was contended that the attorneys had made similar statements, in precisely the same language, to other independent consultants involved in the project. The jury found for the plaintiffs and awarded $1 million. Damages were assessed on the basis of testimony of the doctors regarding the lost value, expert testimony from a qualified architect, factual testimony from the owner of the easement, and information associated with easement over adjacent properties. Type of action: Legal malpractice Type of injuries: Damages resulting to a limited liability company from mistake made in real estate title Name of case: MD Property Management, LLC v. Winokur, et al. Court/Case no./date: Oakland County Circuit Court; NM; Oct. 22, 2010 Name of judge: Phyllis C. McMillen Highest offer: $50,000 Verdict amount: $1 million Special damages: Interest, case evaluation sanctions Most helpful experts: Steven Matta, attorney, Bloomfield Hills; Frank Carnovale, architect, Birmingham Attorney for plaintiff: Lawrence J. Acker Attorneys for defendant: Sharon M. Woods, Daniel J. LaCombe Status: Case closed.

7 Cite 25 Mich.L.W. 231 January 10, 2011 Michigan Lawyers Weekly B7 LARGEST SETTLEMENTS # 1 Responsibility for damages contested Combined-sewer overflow project s non-completion leads to lawsuits $9,154,383 In a lawsuit filed in Wayne County Circuit Court, Walbridge Aldinger Co. sought damages from the city of Dearborn and Travelers Property Casualty Co. of America in a dispute over damages to a construction project. The city filed counter-claims against Neyer, Tiseo & Hindo, Ltd., Travelers Casualty and Surety Co. of America, Federal Insurance Co. and Travelers Property Casualty for breach of contract and breach of contractual indemnification obligations. Walbridge was awarded a $33 million contract for the construction of facilities to address a discrete portion of the city s combined-sewer overflow project (commonly referred to as Contract No. 3). The project was designed and managed for the city by Neyer, Tiseo & Hindo (NTH). Travelers Property Casualty was Walbridge s risk insurance carrier, and Travelers Casualty and Surety and Federal Insurance were Walbridge s sureties. Contract No. 3 called for construction of a massive caisson (a concrete cylinder) that had walls that were 7 1/2 feet thick, 136 feet in diameter, and to be constructed to a depth of approximately 100 feet into the ground. It was designed to be constructed using the sinking caisson method of construction, pursuant to which the caisson was sunk into the ground using its weight, along with the reduction of friction on the inside and outside faces of the caisson. As the caisson was sunk into the ground, the design called for additional rings of concrete to be added until the caisson achieved its final depth, which, in this case, was bedrock. During construction, the caisson sustained serious damages in the form of major cracks and delaminations in the concrete that occurred as a result of earth pressures exerted on the caisson as it sunk. Walbridge contended that the caisson failed due to NTH s design errors and differing site conditions. NTH, however, asserted the damage was caused by Walbridge s construction techniques. Ultimately, Walbridge sued the city for more than $4 million, declaring that it had not caused the subject damages. The city then terminated Walbridge s contract and filed a counter-claim asserting the damage resulted from Walbridge s negligent construction. The city also filed a third-party complaint against NTH for breach of its contractual indemnification obligations and for breach of contract if Walbridge s allegations of negligent design were proven to be true. As well, the city filed a third-party complaint against Walbridge s sureties for their failure to complete the project. Finally, Walbridge and the city brought third-party complaints against Travelers Property Casualty, alleging that it had wrongfully denied the city and Walbridge s claims to coverage under the builder s risk policy. After nearly two years of litigation involving tens of depositions and the defeat of Travelers Property Casualty s motion for summary disposition on Walbridge and the city s builders risk-coverage claims, the case was case evaluated before a special case evaluation panel selected by the parties. At case evaluation, Walbridge s claims against the city were defeated, and the city was awarded $2,154,383 from Walbridge ($500,000, plus the retention of $1,654,383 already earned by Walbridge); $1.5 million from NTH; and $7.75 million from Travelers Property Casualty. Travelers Property Casualty contended that there was no coverage under the builders-risk policy because there were exceptions in the policy from coverage for damage caused by defective design and faulty workmanship. Following the completion of expert depositions and prior to the hearing on the summary disposition motion, the city s claim was resolved for $5.5 million, making the city s total recovery $9,154,383. Type of action: Construction litigation, breach of contract Name of case: Walbridge Aldinger Co. v. City of Dearborn, et al. Court/Case no./date: Wayne County Circuit Court; CK; March 17, 2010 Tried before: Mediation Name of judge: Prentis Edwards Name of mediator: James Rashid Mediation settlement: $9,154,383 Most helpful experts: Raymond Castelli, construction and geotechnical foundation specialist, New York; John Wisniewski, construction and substructure design specialist, Baltimore Insurance carriers: Travelers Property Casualty Co. of America, Travelers Casualty and Surety Co. of America, Federal Insurance Co. Attorneys for plaintiff: David M. Hayes, David T. Dekker, Michael McNamara Attorneys for defendants: Gary K. August, Matthew G. McNaughton, James R. Case, Michele A. Chapnick, K. Clark Schirle, Jonathan T. Walton Jr. # 2 Commissions disputed after stock purchase Company that took over electric motor maker had dropped payments 50% $8,496,255 In a lawsuit filed in U.S. District Court for the Eastern District of Michigan, plaintiff Gerard Thomas Co., Inc. sought past and future sales commissions from defendant S&T Daewoo Co., Ltd. Gerard Thomas Co. is a manufacturer s representative sales agency. S&T Daewoo is a Korean automotive parts manufacturer and the successor to Daewoo Precision Industries, Inc. (DPI), also based in Korea. Defendant manufactures electric motors for automotive applications. The relationship between Gerard Thomas and DPI started in There were three separate contracts that governed the relationship between Gerard Thomas and DPI signed in 1987, 1990 and S&T Daewoo purchased the stock of DPI in 2006 and immediately sought to reduce the payment of commissions owed to Gerard Thomas pursuant to the written contracts. Although the parties engaged in negotiations, they never reached a new agreement. Shortly after S&T Daewoo purchased the stock of DPI, it unilaterally reduced the commission payments by approximately 50 percent. Thereafter, Gerard Thomas applied some sales dollars belonging to S&T Daewoo, which rightfully came into Gerard Thomas possession, to the outstanding commissions owed to Gerard Thomas by S&T Daewoo. Thereafter, S&T Daewoo stopped all further commission payments. The arbitration panel awarded plaintiff $8,496,255, broken down as $1,996,255 for past due commissions and $6.5 million for future commissions. Type of action: Unpaid commissions Name of case: Gerard Thomas Co., Inc. v. S&T Daewoo Co., Ltd. Court/Case no./date: U.S. District GILLARY Court, Eastern District of Michigan; ; Oct. 26, 2010 Name of judge: Bernard A. Friedman Name of neutral arbitrator: Sharon M. Woods Mediation award: $8,496,255 ($1,996,255 past due commissions, $6.5 million future commissions) Attorney for plaintiff: Randall J. Gillary Arbitrator for plaintiff: Stephen K. Valentine Jr. Attorneys for defendant: Daniel D. Swanson, Kevin Stoops Arbitrator for defendant: Jerold E.D. Lax # 3 Supplier says there was a violation of agreement Settlement reached after 6th Circuit affirms verdict for unpaid commissions $8.3 million In a lawsuit filed in U.S. District Court for the Eastern District of Michigan, plaintiff Votar LLC sought damages from defendant HS R&A Co., Ltd. for unpaid sales commissions. Votar had an exclusive sales representative agreement with HS R&A, a Korean auto parts supplier. The agreement provided that Votar would be HS R&A s exclusive sales representative in North American for a minimum term of five years, beginning April 6, In late 2002, HS R&A hired away one of Votar s key employees and ceased all communications with Votar. HS R&A subsequently built a manufacturing plant in Alabama to supply automotive parts to a Hyundai plant located there. Plaintiff asserted HS R&A breached the agreement by hiring away Votar s employee and also by failing to pay sales commissions to Votar for all purchase orders obtained during the initial term of the agreement. Defendant contended that the parties had agreed to a buyout of the agreement. On Dec. 5, 2007, the jury reached a verdict of $3,010, for commissions owed; $100,000 in penalty damages pursuant to MCL (5); and life-of-thepart sales commissions of approximately $1.5 million per year going forward, totaling approximately $7.61 million. On March 18, 2010, the 6th U.S. Circuit Court of Appeals affirmed the jury verdict, and on April 29, 2010, the parties agreed to an $8.3 million settlement. Type of action: Sales commission dispute Type of injuries: Unpaid sales commissions Name of case: Votar, LLC v. HS R&A Co., Ltd. Court/Case no./date: U.S. District Court, Eastern District of Michigan; ; jury verdict rendered Dec. 5, 2007; settlement reached April 29, 2010 Name of judge: John Corbett O Meara Verdict amount: $7.61 million (approx.) Settlement amount: $8.3 million Attorneys for plaintiff: Randall J. Gillary, Kevin P. Albus # 4 Plaintiff says specialist should have been used Non-reassuring non-stress test was ignored by OB, mother contends $4.875 million In a confidential lawsuit, plaintiff next friend of plaintiff twin minor sought damages from defendant hospitals, defendant OB and defendant neonatologist for medical malpractice and birth trauma. This case involved twin-to-twin transfusion syndrome (TTTS), which causes one twin to receive too much blood, while the other receives too little, and the complication can be fatal to either twin. The condition Largest Settlements continued on page 8 VISIT OUR WEBSITE AT

8 B8 Michigan Lawyers Weekly January 10, 2011 Cite 25 Mich.L.W. 232 LARGEST SETTLEMENTS Continued from page 7 should be suspected when there is discordant growth of the two fetuses, i.e., one is larger than the other. Despite the fact that the twins estimated weights were discordant, plaintiff contended that the defendant OB repeatedly noted there was good symmetrical growth and failed to refer the mother to a high-risk specialist. Moreover, it was asserted, the OB ignored a non-reassuring non-stress test (NST), and recommended that the mother return in a few days for further monitoring. At that follow-up appointment, signs of fetal distress were immediately apparent on the fetal heart monitor strips. The mother was rushed to a nearby high-risk hospital, where cesarean delivery soon followed. The first twin was clearly asphyxiated, with Apgar scores of 1, 5 and 10. Initial arterial blood gasses, which would provide evidence hypoxia ischemia (a lack of blood to the brain), were lost. The twin initially did well, but at approximately 13 days post-birth, he developed an umbilical artery clot due to a catheter. Defendant neonatologist ordered a thrombolytic drug (TPA) to dissolve the clot. Plaintiff asserted that use of TPA on a premature infant was an experimental intervention that posed an unnecessary high risk of intracranial bleeding. The infant did in fact develop a severe intracranial bleed that resulted in severe cerebral palsy and mental retardation. Defendant OB contended that there was no indication for an earlier delivery and that the cause of the brain damage was related to the subsequent intracranial bleed. However, plaintiff asserted that, had the OB delivered the infant in a timely manner, the baby would not have need an umbilical artery catheter for a prolonged period and thus the clot and subsequent TPA induced bleed would have been avoided. The first defendants primary defense was that the child s neurological deficits were solely caused by the subsequent injury, which occurred at the second hospital. Plaintiffs retained a highly qualified neuroradiologist to review the child s cranial ultrasounds, which showed brain swelling, consistent with an injury before birth that was exacerbated by the subsequent bleed. The second defendant contended that the clot in the artery was a life-threatening emergency, and, thus, a thrombolytic drug was indicated. It was asserted that the parents gave a verbal consent via telephone, which plaintiff refuted by contending that an ultrasound study showed good flow through the artery, and that Heparin and watchful waiting were indicated and a safer alternative than TPA. A portion of this case was resolved after a settlement with a hospital that negligently provided follow-up care to the same child. The first hospital paid $2.5 million and the second paid $2.375 million, bringing the total compensation to $4.875 million. Type of action: Medical malpractice, birth trauma Type of injuries: Cerebral palsy, catastrophic motor and cognitive deficits due to asphyxia causing hypoxic-ischemic encephalopathy Court/Case no./date: Confidential; confidential; July 26, 2010 MCKEEN Settlement amount: $4.875 million Attorney for plaintiff: Brian J. McKeen # 5 Child born late, results in cerebral palsy, developmental delays Plaintiff says she should have been admitted based on signs of distress $4.75 million In a confidential medical-malpractice and birth-trauma lawsuit, plaintiff mother sought compensatory damages from defendant hospital when the C-section birth of her child resulted in cerebral palsy, developmental delays and mental retardation. The mother treated prenatally with a family practice physician. Neither she nor her husband spoke English. Prenatal care was mostly uneventful with the exception of an occasional elevated blood pressure reading. Her prenatal doctor sent her to a hospital for an ultrasound. The ultrasound showed a 17-day discrepancy between her last menstrual period and the size measurements of the ultrasound. Three and a half months later, she was having spotting and contractions. She went to the hospital again. No translator was brought in. Her initial blood pressure was elevated though not considered abnormal. She was placed on a fetal monitor. Lab studies and urinalysis for protein were not performed, as would be required with abnormal blood pressures. The earlier ultrasound suggested that she might be past her due date, but she was discharged from the hospital. She was told to follow up with her prenatal doctor, which she did a few days later. Her blood pressure was elevated in the doctor s office. No treatment was provided, and she was told to go to the hospital the next day if she had spotting. The following day, plaintiff presented at the hospital, complaining of bleeding. An emergency C-section was performed for non-reassuring fetal heart tones. The baby was transferred to the neonatal intensive care unit and spent seven weeks in the hospital. He was later diagnosed with mild cerebral palsy, mental retardation, speech and language delays. Plaintiff asserted that the mother should have been admitted to the hospital on the first visit for further evaluation of the fetal status, abnormal blood pressure, and bleeding, which ultimately would have led to an earlier delivery of the baby. It also was contended that the 17-day discrepancy between the ultrasound date and the last menstrual period date required follow-up and delivery, as it showed the baby was at 42 weeks gestation. Defendants asserted that the mother was not in labor when she first came in to the hospital, and that while her blood pressure was elevated at times, it was not abnormal and did not meet criteria for further testing. It also was contended that plaintiff was not in labor and therefore did not require admission, and that plaintiff was not beyond her due date. Defendant filed a notice of non-party fault and asserted that the prenatal treater was responsible for not appropriately following up on the day before delivery. The matter settled for $4.75 million. REITER Type of action: Medical malpractice, birth trauma Type of injuries: Cerebral palsy, developmental delays, mental retardation Court/Case no./date: Confidential; confidential; August 2010 Name of judge: Withheld SABATINI Settlement amount: $4.75 million Most helpful expert: InFocus Research Group, Shelby Township Attorney for plaintiff: Jesse M. Reiter, Juliana B. Sabatini Plastiras # 6 Investment advisor suspected of fraud Claimants say less than one-third of money went to real investments $4,665,510 In a confidential lawsuit, plaintiff claimants sought damages from defendant broker-agent for monetary losses from a securities fraud scheme. In 1997, an agent who purported to be a registered representative and investment advisor (rep/ria), created a company as a means of diverting client money, telling clients that the company was a subsidiary of a broker-dealer. Once client money was deposited into the company, it issued fictitious account statements listing fictitious investments. The fictitious account statements and the financial company s account statements were indistinguishable. Claimants, both in their 60s, were owners of a successful business they started 30 years prior. Over a three-year period, they gave the assumed rep/ria more than $6 million; of that amount, $1.75 million was invested legitimately, while the rest was not. During litigation, it was learned that the broker-dealer had been subjected to a number of Financial Industry Regulatory Authority sanctions and fines for failing to maintain a reasonable supervisory system related to the oversights in this case. It also was learned that another 40 or so individuals had been defrauded over a 13-year period, totaling more than $10 million. Defendant contended that there was reasonable supervisory system in place, and when broker-agent learned what had happened, the assumed rep/ria was terminated and the SEC and FBI were contacted. The matter settled for $4,665,510. Type of action: Securities fraud Type of injuries: Monetary June 25, 2010 Tried before: Arbitration Name of arbitrator: Withheld Demand: $8.6 million Settlement amount: $4,665,510 Attorney for plaintiff: David M. Foster Man suffers ruptured aneurysm after CT scan Plaintiff asserts signs were apparent two weeks prior; case settles $4 million In a confidential medical malpractice lawsuit, plaintiff patient sought damages against defendant primary care physician, defendant radiologist and defendant hospital after an aneurysm was undiagnosed via CT scan. In January 2007, the patient, a middle-aged man, went to his primary care physician complaining of an intense headache. The physician referred the patient to the radiologist, and did not include cerebral aneurysm in his differential diagnosis upon referring him. The CT scan, however, demonstrated two aneurysms, and was misread by the diagnostic radiologist as normal. The aneurysm ruptured, resulting in severe neurological complications and disability. Plaintiff asserted that the signs of aneurysm should have been diagnosed and treated, and that aneurysms were apparent two weeks before rupture. Defense did not offer argument. The case settled for $4 million at facilitation. Type of action: Medical malpractice # 7 Type of injuries: Ruptured aneurysm, hemiplegia, residual cognitive, neurological damages June 2010 Tried before: Facilitation Name of facilitator: Richard C. Kaufman Settlement amount: $4 million Attorneys for plaintiff: John S. Hone, Brian McKeen # 7 Hemorrhage causes man s paralysis Experts say scan distinctly revealed two aneurysms in patient s brain $4 million In a confidential medical-malpractice lawsuit, plaintiff patient sought damages from defendant primary care physician and defendant radiology group for failure to recognize and respond to a subarachnoid hemorrhage. In December 2006, the plaintiff, 52, contacted his primary care physician twice over two days, complaining of the worst headache ever that brought him to his knees. He also was noted to have photophobia and a stiff neck. Plaintiff asserted that this was a classical presentation of subarachnoid hemorrhage (SAH). It also was

9 Cite 25 Mich.L.W. 233 contended that a fundamental tenet of medicine, and a common medical board exam question, is when subarachnoid hemorrhage is suspected, the patient should receive a stat CT scan of the brain without contrast which, if negative, should be followed up with a lumbar puncture (LP) to look for blood in the spinal fluid. The primary care physician instructed the patient to report to the hospital for a CT with and without contrast a few days later. The physician did not order a lumbar puncture after the negative CT scan. The radiologist who read the CT scan reported findings as unremarkable unenhanced and enhanced cranial CT[s]. Plaintiffs experts testified that the initial CT scan distinctly revealed two aneurysms in the patient s brain. Days later, the patient was found unresponsive in a bathroom while visiting his family. He was rushed to the ER, and diagnosed with subarachnoid hemorrhage, specifically a ruptured right middle cerebral artery (MCA) trifurcation aneurysm and an unruptured left MCA bifurcation aneurysm. It was contended that the failure to timely and properly render care in this case resulted in the patient suffering significant neurological injuries, rendering him permanently paralyzed and depriving him of all of his wage-earning capacity Plaintiff s experts testified that, had the aneurysms been treated upon his initial call to his primary physician after his CT scan, plaintiff s injury would have been avoided. Defendants contended that there was no pre-existing SAH, and that a LP would have been normal. It also was asserted that a poor outcome can occur following a ruptured aneurysm even under the best of circumstances. The matter settled for $4 million. Type of action: Medical malpractice Type of injuries: Failure to diagnose and respond to subarachnoid hemorrhage, causing paralysis resulting in loss of quality of life and complete loss of earnings capacity March 2, 2010 Settlement amount: $4 million Attorneys for plaintiff: Brian J. McKeen, Teresa E. Kasel # 8 Injury spreads to pain in all four extremities Initial impairment a wrist sprain, evolves into rare carpal tunnel $3.775 million On Aug. 6, 2008, the plaintiff, a 32-year-old father of five sons who worked as a refuse collector, was riding his motorcycle when the defendant driver turned his vehicle left in front of him causing the accident. In the accident, plaintiff bruised and sprained his wrist. He refused medical treatment at the scene, but later went to the hospital where he was diagnosed with a sprain to the wrist. He was splinted and told to follow up with his own physician. No tear or fracture was definitively found in the wrist in the following months. Nearly three months after the accident, he was referred to an orthopedic hand surgeon who found a positive Tinel s sign at the carpal tunnel. An EMG showed minor carpal tunnel syndrome in this wrist. One injection was given. On Jan. 15, 2009, a carpal tunnel release was performed. Within four days after the surgery, plaintiff began to show signs of complex regional pain syndrome, a known but rare complication of a carpal tunnel release, which began to develop in his right hand, wrist and forearm. Symptoms included mottling, excessive hair growth and swelling throughout the hand; allodynia (a pain due to a stimulus which does not normally provoke pain) to touch; and limited range of motion of the fingers. Despite more advanced treatment, the condition spread to all four extremities within a short period of time, leaving plaintiff wheelchair-bound and, according to a vocational rehabilitation consultant, totally unemployable. Defendant contended carpal tunnel syndrome was not related to the motorcycle accident, and that carpal tunnel symptomatology shows up much quicker than 3½ months, which is what happened in plaintiff s case. As well, it was asserted that the carpal tunnel syndrome was coincidental to the accident, and that plaintiff most likely got it from being extremely overweight. It also was contended that plaintiff had complained January 10, 2011 of numbness and tingling in the same hand and wrist two years earlier and, therefore, the carpal tunnel syndrome could not have been related to a sprained wrist following the accident. The matter settled for $3.775 million, with a periodic payment schedule guaranteeing a $6 million payout. Type of action: Third-party motorcycle accident Type of injuries: Sprained wrist evolving into complex regional pain syndrome Court/Case no./date: Oakland County Circuit Court; confidential; Oct. 29, 2010 MORSE Name of judge: Shalina Kumar Highest offer: $2.5 million Settlement amount: $3.775 million Special damages: Periodic payment schedule guaranteeing a $6 million payout Most helpful experts: Dr. Timothy R. Lubenow, pain management, Chicago SIMPSON Insurance carrier: Withheld Attorneys for plaintiff: Michael J. Morse, Eric M. Simpson Keys to winning: Aggressive discovery and motion practice, learning every detail about complex regional pain syndrome # 9 Township, landowners clash on 28-acre parcel Damages sought after development potential of property impacted $3.5 million In a condemnation/eminent domain lawsuit filed in Jackson County Circuit Court, plaintiff Blackman Township sought to acquire a 28-acre parcel from defendants G.M. North III, Patricia L. North, Radcliffe F. North, Consumers Energy Co. and Michigan Bell Telephone Co. (now known as AT&T). The defendants sought financial damages for value and damages to property. Plaintiff Blackman Township acquired, through eminent domain, a strip of land through defendants 28- acre parcel, located at the intersection of Interstate 94 and U.S. 127 in Jackson County. The land was for the purpose of creating a service drive to access approximately 60 acres of township-owned property to create a multiuse development. The township development was made possible when the Jackson County Airport realigned a runway, thereby removing a land-use restriction on the 60 landlocked acres owned by the township. The township agreed to sell the property to Ramco-Gershenson Properties Trust for a large-scale, multi-use development. In order to obtain access to the Blackman Township/Ramco-Gershenson property, it was necessary to acquire the right-of-way by eminent domain from the owners of the adjacent 28-acre property. Blackman Township originally offered $185,000 for the 2.5 acres of land needed for the roadway. Landowners alleged $2.6 million in damages to the remainder for the impact of the roadway on the development potential of the remaining acreage. Shortly before trial, Blackman Township made a settlement offer to acquire the entire 28-acre parcel for $3.5 million rather than be at risk of the significant compensation claimed by the landowners for the taking of the right-of-way. Type of action: Condemnation, eminent domain Type of injuries: Value, damages to property Name of case: Charter Township of Blackman v. G.M. North III, et al. Court/Case no./date: Jackson County Circuit Court; CC; July 13, 2010 Name of judge: Chad C. Schmucker Demand: $5 million Highest offer: $185,000 Settlement amount: $3.5 million DYNKOWSKI Attorney(s) for plaintiff: Withheld Attorneys for defendant: Alan T. Ackerman, Darius W. Dynkowski Michigan Lawyers Weekly B9 Stroke causes mental, physical impairments Decision to treat patient s aneurysm via coiling leaves her vegetative $3.5 million In a confidential medical-malpractice lawsuit, plaintiff conservator for patient incapacitated individual sought damages from defendant hospitals for a severe stroke causing catastrophic mental and physical impairments, which left the patient in a near-persistent vegetative state. In mid-june 2006, plaintiff, a 40-year-old married mother of two, went to her family physician complaining of severe headache and an increased heart rate. The physician referred her to a southeast Michigan hospital. There, in the ER, she gave the same complaints, as well as pain radiating to the neck, which is a sign of subarachnoid hemorrhage (SAH). She was given IV Heparin for atria fibrillation (an anticoagulant), and a head CT was ordered. However, administration of Heparin prior to a CT is a gross violation of the standard of care. Although CT scan was negative for subarachnoid hemorrhage, the hospital failed to do a lumbar puncture; whereas the standard of care requires that a lumbar puncture be performed in order to completely rule it out. The patient then was admitted and complained of a severe headache for more than two days. During this time, no diagnostic tests were performed to determine the etiology of the severe headache. On the third day, the patient was found screaming and experiencing seizures in her room. Shortly thereafter, CT results revealed SAH and possible aneurysm rupture. Protamine, a synthesized protein used to stop the effects of anticoagulants, had to be administered to reverse the effect of the Heparin. A consultation was sought by a larger southeast Michigan hospital s neurosurgeon, who recommended that the patient be transferred. On admission, the patient was semiconscious. A cerebral angiogram revealed a ruptured aneurysm in the anterior communicating artery. At this point, interventional radiology was consulted, and it was decided to treat the aneurysm with endovascular coiling. However, the coiling procedure was not a success. The neuroradiologist s attempts to remove the coil were unsuccessful, and the coil lodged in the carotid artery. Multiple attempts to remove it failed. The interventional radiology defendant had to admit that when a coil is left extended in the carotid artery, it can cause a stroke and catastrophic damage to the brain, which is what happened to the patient. Plaintiff asserted that the interventional radiologist should have been able to place the coil and restore flow to the carotid artery. The patient then was sent to the ICU, where a neurocheck soon revealed changes in her right pupil, as sign of damage to the brain. A STAT CT revealed internal ischemic damage, due to the stroke in the area fed by the right internal carotid artery. Two interventional neurosurgeries were required to attempt to minimize the damage caused by the coil. The patient was left in a severely impaired state with severe cognitive deficits. Defendant first hospital contended the patient s symptoms were inconsistent with an acute SAH, and thus, there was no need to perform the appropriate work-up. The interventional radiology defendant attempted to claim that the procedure itself comes with a high risk of morbidity and mortality, and that it was impossible to remove the coil once it became stuck. The matter settled for $3.5 million. Type of action: Medical malpractice # 9 Type of injuries: Severe stroke causing catastrophic mental and physical impairments leaving patient in a nearpersistent vegetative state Oct. 22, 2010 Settlement amount: $3.5 million Attorneys for plaintiff: Brian J. McKeen, Teresa E. Kasel, Derek J. Brackon Largest Settlements continued on page 10 BE SEEN, BE HEARD Share your firm s news with the people you want to reach at a fraction of the cost of regular mailing run a Professional Announcement in Lawyers Weekly. Call Charlene Boccaccio at for info.

10 B10 Michigan Lawyers Weekly January 10, 2011 Cite 25 Mich.L.W. 234 LARGEST SETTLEMENTS Continued from page 9 Minor enters woman s house, causes injuries He was provided alcohol by co-defendant earlier; case settles $3.225 million In a negligence and social host liability lawsuit, plaintiff homeowner sought damages from defendant minor and defendant corporation after sustaining lower spinal-cord injuries resulting in permanent loss of bowel, bladder and sexual function. The injuries occurred as a result of an incident in which defendant minor unlawfully but accidentally entered plaintiff s home during the early morning hours while in a highly intoxicated state. Prior to the occurrence of this incident, defendant had been furnished a disputed quantity of alcohol while upon premises owned by defendant corporation. Plaintiff s lawsuit alleged negligence against the minor defendant, and violation of Michigan s social host liability laws against defendant corporation. Although defendant corporation vigorously contested liability, the parties reached a $3.225 million settlement of all claims by way of mediation. Type of action: Negligence, social host liability Type of injuries: Severe lumbar spinal injuries May 2010 Settlement amount: $3.225 million Insurance carrier(s): Withheld Attorney for plaintiff: Christopher J. Hastings Family contends market rates weren t paid for attendant care Case manager says she raised concerns over ethical duties $3 million In a confidential lawsuit, plaintiff guardian/ conservator for plaintiff male, 26, sought damages from defendant no-fault insurance carrier for lost attendant care benefits following an auto accident. The plaintiff male was catastrophically injured in a motor vehicle accident, and suffered a brain injury that resulted in memory loss, seizures, impaired judgment and impulsiveness. The carrier initially paid the family 83 cents per hour for family attendant care, then raised it to $5 per hour. After hiring counsel, the family got the rate raised to $9 per hour, and eventually $14 per hour. Through discovery on this and other cases against defendant, counsel discovered the carrier had actually made an effort to identify catastrophic-claims files that clearly demonstrated underpayment of benefits. Upon identification of the file, defendant raised its reserves (the dollar amount the carrier perceived to be the future exposure on the claim upon its first reporting). It did not, however, notify the family of the admitted underpayment, nor did the carrier pay what the law required as market rates for caring for catastrophically injured family members. Testimony from a case manager for the carrier, who was deposed as a fact witness, revealed she was told by management not to volunteer information on market rates. She subsequently raised an ethical concern about being ethically bound to represent the interests of the patient, not the insurance company, but the carrier changed the descriptive title of case manager to do away with such ethical matters, noting that if they were not a certified case manager, they no longer had the ethical duty. The matter settled for $3 million at facilitation, which includes past due benefits, penalty interest, attorney fees and exemplary damages. Type of action: First-party no-fault # 10 # 11 Type of injuries: Attendant care benefits that were not at market rates Nov. 10, 2010 Tried before: Facilitation Name of judge: Withheld Settlement amount: $3 million Insurance carrier: Withheld Attorneys for plaintiff: Robert F. Garvey, Daniel P. Beck Worker entangled in posthole digger Defense says machine wasn t defective, but was altered # 12 $2,835 million In a confidential products liability and general negligence lawsuit, plaintiff sought damages following a workplace accident that rendered him a quadriplegic. On March 12, 2007, plaintiff was working as a manual laborer assisting in digging postholes for a deck in a residential construction site. While operating the posthole digger, he became entangled at the universal joint between the power take-off and the auger. He became a quadriplegic as a result. Plaintiff asserted that the posthole digger was defectively designed due to the fact that the guard for the universal joint was not in the proper place. Plaintiff s alternative design was an integral guarding system of sufficient size to completely cover the U-joint. It was further contended that an integral guard, which would prevent the posthole digger from being operated without the guard in its proper place, would have prevented plaintiff s exposure to the rotating universal joint and entanglement. Defendants asserted that the posthole digger was manufactured in accordance with industry standards and not defective, and was altered and/or modified by third parties. It also was contended that the non-party employer was fully or partially responsible for the accident. As well, defendants claimed that the entanglement occurred on the drive shaft and not at the universal joint, making plaintiff s alternative design irrelevant. The case settled for a combined total of $2,835,000 among three defendants through facilitation with James Rashid. Type of action: Products liability, general negligence Type of injuries: Quadriplegia May 2010 Tried before: Facilitation Name of Facilitator: James J. Rashid Settlement amount: $2,835 million Most helpful experts: Kevin Sevart, Wichita, Kan.; Gerald Harris, Milwaukee Attorneys for plaintiff: Craig E. Hilborn, John S. Hone, Kevin C. Riddle # 13 Mother not suspected of being in labor Plaintiff: Cord compression, other factors should have been noted $2.75 million In a confidential medical-malpractice and birth-trauma lawsuit, plaintiff next friend of plaintiff minor sought damages from defendant hospital for cerebral palsy, catastrophic motor and cognitive deficits due to asphyxia in a severely preterm baby causing hypoxicischemic encephalopathy following birth. In late 2004, the mother presented to the regional hospital at eight weeks gestation with complaints consistent with active labor for a twin pregnancy. It was clear that this patient was a high-risk mother. Despite the fact that she arrived in pre-term labor at 7:30 a.m., defendants did not suspect her to be in labor until 3:30 p.m. Despite the mother being at high risk, the attending OB did not arrive at the mother s bedside until 5:25 p.m., two hours after labor was suspected. The mother developed a fever due to infection in the amniotic fluid. The first twin, the plaintiff minor in this case, was delivered vaginally with low Apgar scores of 3, 3 and 6. The child now suffers from cerebral palsy, bronchopulmonary dysplasia and apnea, and is permanently impaired both physically and mentally. Plaintiff s experts testified that the mother should have been transferred to a hospital with a neonatal intensive care unit and that the mother should have been informed of her options, including C-section. Plaintiff s experts further contended that the attending obstetricians should have recognized cord compression, chorioamnionitis and non-reassuring fetal heart tones, opting to perform a C-section far earlier. Defendant contended that the baby s brain damage was secondary to prematurity and choiroamnionitis that could have resulted in a bad outcome regardless of the timing of delivery. The matter settled for $2.75 million. Type of action: Medical malpractice, birth trauma Type of injuries: Cerebral palsy, catastrophic motor and cognitive deficits due to asphyxia in a severely preterm baby causing hypoxic-ischemic encephalopathy Nov. 12, 2010 Settlement amount: $2.75 million Attorneys for plaintiff: Brian J. McKeen, Teresa E. Kasel, Derek J. Brackon # 14 Plaintiff seeks damages following accident Extra premium paid for to have driver with poor record insured $2.72 million In a third-party automobile negligence lawsuit filed in the Wayne County Circuit Court, plaintiff driver sought compensatory damages from defendants communications company and its employee following an automobile accident. On Sept. 24, 2008, plaintiff, 36, and defendant employee, 19, were traveling westbound on I-96. Traffic ahead began to slow, and defendant s truck changed lanes into plaintiff s lane at the same time plaintiff was slowing his vehicle. Defendant rear-ended the plaintiff at a high rate of speed, and claimed that a vehicle coming from his left into his lane necessitated him to move into plaintiff s lane. Plaintiff sustained injuries including an L5-S1 herniated disc, and underwent both posterior and anterior fusions at that level. He was disabled from his machinist s job as a result of this crash. At the time of the collision, defendant was on his way to work for his employer, defendant communications company. He was driving a vehicle that the employer provided, but he was not in the course and scope of his employment at the time of the accident. Plaintiff took numerous depositions, including toplevel management and all of defendant s supervisors, and established that defendant employer never looked at defendant s driving record before allowing him to use its vehicle, but rather claimed they relied on its insurance company to obtain insurance. The insurance agent was deposed, and testified that she could get anybody insurance who had a valid driver s license, as long as they were willing to pay the appropriate premium. She also admitted that defendant driver had to pay extra premiums in order to get insurance, and defendant employer paid these extra premiums based upon the poor driving record. Defendants accident reconstructionist testified that defendant was traveling too close to the vehicle ahead, and therefore, the defendant could not see the plaintiff and was partially at fault, even if there was another vehicle involved. Defendants asserted that defendant employer acted reasonably. Also, defendants asserted that extensive surveillance showed plaintiff driving, although he testified he could not drive; not wearing his back brace, despite testifying he always wears it; and doing some other activities that were not in line with his restrictions. Plaintiff filed a motion in limine to allow plaintiff to introduce evidence relating to exemplary damages,

11 Cite 25 Mich.L.W. 235 January 10, 2011 Michigan Lawyers Weekly B11 based on the defendant employer s failure to take any action in evaluating defendant driver before allowing him to operate its vehicle. In the motion, plaintiff cited testimony from defendant s managers, which allowed the court to grant this motion. The matter settled for $2.72 million. Type of action: Third-party truck accident, negligence Type of injuries: Lumbar herniation in one disk, requiring two surgeries Court/Case no./date: Wayne County Circuit Court; confidential; Oct. 27, 2010 Name of judge: Robert J. Colombo Settlement amount: $2.72 million Attorneys for plaintiff: Michael J. Morse, Marc J. Mendelson MORSE Keys to winning: Explaining how plaintiff s life was altered after the accident and likely could not work again in the job in which he was trained; plaintiff s counsel attending all independent medical examinations MENDELSON # 15 Improper U-turn kills driver of oncoming SUV Two passengers sustain injuries when van goes back to gas station $2.65 million In a confidential lawsuit filed in the State of Michigan Court of Claims, the estate of the plaintiff s decedent sought damages from defendant following a fatal auto accident. On Aug. 9, 2008, decedent was driving eastbound in an SUV on M-115 near Crystal Mountain Resort, with her daughter, father, sister and niece as passengers. A van owned by defendant was traveling westbound. The employee driver of defendant s van had just filled up his gas tank but forgot his receipt. He was turning around to go back to the gas station, pulled off onto the shoulder of the road and made an improper U- turn right in front of the decedent s SUV. When decedent turned to avoid defendant s vehicle, her SUV rolled over three to four times, coming to a rest upside down on the driver s side, causing her death. Her father and sister suffered shoulder injuries and a rotator cuff tear, while the daughter and niece were not injured. Defendant contended that the employee driver said he either did not look or did not see decedent s vehicle when making his U-turn into decedent s vehicle. It was further contended that decedent was speeding. Plaintiff asserted that when executing a U-turn, the driver must yield to oncoming traffic. The case settled for $2.65 million, broken down as $2.55 million for the wrongful death and $50,000 each to the injured father and sister. Type of action: Third-party auto negligence Type of injuries: Death, arthroscopic shoulder injury, rotator cuff tear Court/Case no./date: Court of claims; confidential; March 10, 2010 Tried before: Facilitation Name of judge: James R. Giddings Name of facilitator: James J. Rashid Demand: $4 million Settlement amount: $2.65 million Attorney for plaintiff: Michael J. Cunningham Plaintiff: Mother should have known of options It s asserted risks of GBS were not explained, went against standard $2.6 million In a confidential medical-malpractice and birth-trauma lawsuit, plaintiff next friend of plaintiff minor sought damages from defendant hospital for cerebral palsy, catastrophic motor and cognitive deficits due to asphyxia causing hypoxic-ischemic encephalopathy following birth. This case involved catastrophic neurological injury of a newborn baby stemming from the failure to administer intrapartum antibiotics due to the Group Beta Streptoccus (GBS) sepsis, the No. 1 infectious killer of newborn babies. Currently, the standard of care requires that all pregnant mothers must be screened for GBS. At the time of the pregnancy at issue (1998), the standard was in transition, and there were two schools of thought, either of which were admittedly considered within the standard of care: a screening approach, where all women were screened antenatally for Group B strep and those who were positive received intrapartum antibiotics or a risk-factor approach where no women were screened antenatally, but if women had risk factors for intrapartum Group B strep sepsis, then they would receive intrapartum antiotics. At the time, the American College of Obstetricians and Gynecologists (ACOG) indicated that either a screening-based approach or a risk-factor approach was acceptable. Defendants contended that they subscribed to the risk-factor approach, and because there were two schools of thought, there was no deviation from the standard of care, and the mother did not require antibiotics. Plaintiff asserted that the patient deserved the right to know of the two schools of thought and her option to be screened. ACOG noted that it was likely that most patients would elect to be screened for GBS, if they were fully informed, and that such requests should be honored. All experts agreed that, if the mother had been screened, she would have been given antibiotics that would have prevented the baby s injuries. In this case, the mother was not informed of the risks of GBS, as required by the standard of care. The defendant physician who provided prenatal care testified that she informed the mother by providing her with a 180-page book entitled A Doctor Discusses Pregnancy, a promotional text distributed by a surgical company that manufactures fetal heart rate monitors. Plaintiff s counsel, after an extensive search of used bookshops throughout the U.S., obtained a copy of this book from the year in question, and it contained no reference to GBS. # 16 MCKEEN TOUTANT As well, plaintiff s counsel used an ACOG publication to argue that, if the mother had been informed of her options, she would have requested to have been screened, resulting in treatment that would have prevented her son s GBS sepsis and resulting brain damage. It was further asserted that negligent uterine hyperstimulation with the labor-inducing drug pitocin further contributed to the child s significant neurological injuries. The case settled for $2.6 million. Type of action: Medical malpractice, birth trauma Type of injuries: Cerebral palsy, catastrophic motor and cognitive deficits due to asphyxia causing hypoxic-ischemic encephalopathy Oct. 24, 2010 Settlement amount: $2.6 million Attorneys for plaintiff: Brian J. McKeen, Phillip B. Toutant Pregnant woman has eclamptic seizure, debilitating stroke Lab results get marked as OK by nurse despite high protein figure $2.5 million In a confidential lawsuit filed in Saginaw County Circuit Court, plaintiff mother sought compensatory damages from defendant hospital after suffering an eclamptic seizure and stroke. At the end of 2005, plaintiff became pregnant and was a fully compliant patient, with no indication of being preeclamptic. At nearly 32 weeks, she went to defendant with complaints of headache. Her urinalysis found high protein content and her blood pressure readings were elevated, both indications of preeclampsia. However, defendant nurse documented that plaintiff s lab numbers were WNL (within normal limits); based on that information, defendant doctor discharged plaintiff with instructions to catch her urine in a bag and return it the next day. Plaintiff returned the next day with the same complaints, adding that she was seeing flashing lights. She was recognized as being severely preeclamptic, and before an IV of magnesium sulfate was to begin, she became eclamptic and had a seizure. An emergency C-section was performed. Though the baby was delivered safely, the seizure caused plaintiff to suffer a stroke. Plaintiff now has permanent brain damage, cognition and memory defects, bilateral cortical blindness, and balance and gait problems. She cannot drive, work as a school teacher, or fully care for herself or her child independently. Plaintiff asserted that standard of care was breached, in that defendant doctor was negligent in sending plaintiff home based on erroneous urinalysis information. Defendant contended that plaintiff s condition was caused by herpes encephalitis. The matter settled for $2.5 million. Type of action: Obstetrical medical negligence # 17 Type of injuries: Brain damage, cognition and memory defects, bilateral cortical blindness, balance and gait problems Court/Case no./date: Saginaw County Circuit Court; confidential; February 2010 Name of judge: Janet M. Boes Settlement amount: $2.5 million Most helpful experts: Dr. Jordan Perlow, Paradise Valley, Ariz.; Dr. Jon Hazen, Las Vegas; Dr. Baha Sibai, Cincinnati; nursing expert Laura Mahlmeister, Belmont, Calif. Attorneys for plaintiff: Frank T. Aiello, Lauri R. Ellias Largest Settlements continued on page 12 FAST AND EASY Report Your Verdicts and Settlements On-line!

12 B12 Michigan Lawyers Weekly January 10, 2011 Cite 25 Mich.L.W. 236 LARGEST SETTLEMENTS Continued from page 11 Falling concrete from bridge hits driver Summary disposition OK d when evidence is thrown away $2.5 million In a negligent road maintenance lawsuit filed in the State of Michigan Court of Claims, plaintiff Anthony A. Adeleye sought compensatory damages from the Michigan Department of Transportation following an accident. In April 2005, while Adeleye was driving on the Southfield Freeway, a chunk of concrete fell from the bottom of an overpass, went through the car s windshield, and struck Adeleye in the face. The injuries he sustained included head injury, trigeminal neuralgia (a painful condition of the nerve responsible for most facial sensation), broken facial bones, and bowel injuries with iliostomy. Adeleye s colon was irrevocably injured through chronic constipation resulting from pain medications that were taken for the pain of the trigeminal neuralgia. Defendant asserted that there was no evidence the concrete was from the bridge, and could have been thrown by someone on the overpass. No proximate cause for the colon injury was contended. The court granted plaintiff s motion for summary disposition on the issue of liability after the state of Michigan discarded the concrete chunk because of the spoliation of evidence. The matter settled for $2.5 million. Type of action: Negligent road maintenance # 17 Type of injuries: Head injury, trigeminal neuralgia, broken facial bones, bowel injuries with iliostomy, numerous surgeries. Name of case: Adeleye v. Michigan Dept. of Transportation Court/Case no./date: State of Michigan Court of Claims; MD; Aug. 16, 2010 Tried before: Facilitative mediation Name of judge: Laura L. Baird Settlement amount: $2.5 million Insurance carrier: Self-insured Attorney for plaintiff: David E. Christensen Attorney for defendant: Assistant Attorney General Philip L. Bladen # 18 Investors claim oil-gas stock program not legit Plaintiffs say deal promised tax benefits that were unfulfilled $2.4 million Plaintiffs and others invested millions of dollars in the Mare Lease Program, offered by ClassicStar, LLC, which allowed investors to lease mares, mate those mares with stallions, and sell the resulting foals. Investors also were told that the program offered numerous tax benefits that the investors could claim. Plaintiffs asserted ClassicStar and its principal, GeoStar Corp., leased far more mares than they owned. To disguise this shortcoming, the complaint asserted that GeoStar persuaded investors to convert their Mare Lease Program investment to an oil and gas program, wherein the investors would own a portion of oil and gas properties owned by GeoStar and Gastar Exploration, Ltd., a publicly traded company. For converting their investment, investors were promised interest and shares in Gastar with a guaranteed put option. However, plaintiffs contended that the investors did not receive the promised money or Gastar shares, and eventually discovered the programs were not only underfunded, but also did not qualify for the promised tax benefits. Plaintiffs asserted claims against the entities and individuals who offered the Mare Lease Program and oil and gas program. Also, claims were asserted against Gastar, with the contention that the programs were designed to raise money to develop the oil and gas properties owned by Gastar, which could not have raised that amount of money on its own. Defendant Gastar denied liability, contending it was not a party to any of the contracts. In addition, Gastar denied benefiting from the scheme, contending that the Gastar stock used to promote the oil and gas program was owned and offered by GeoStar. The plaintiffs settled with Gastar for $2.4 million. The claims against other defendants to the case are still pending. Type of action: Breach of contract, RICO, fraud Type of injuries: Failure to pay investors or provide stock, as contractually required Name of case: AA-J Breeding, LLC, et al. v. Gastar Exploration, Ltd., et al. Court/Case no./date: U.S. District Court, Eastern District of Michigan; 07-CV-12849; Nov. 24, 2010 Name of judge: Thomas L. Ludington Settlement amount: $2.4 million Attorneys for plaintiff: E. Powell Miller, Jayson E. Blake, Marc L. Newman, Adam T. Schnatz Attorney for defendant: Jason M. Powers Truck driver says faulty accelerator caused crash Stats for pickup make, model don t show similar problem nationally $2.35 million In an auto negligence and wrongful death lawsuit filed in Wayne County Circuit Court, plaintiff Kenneth Feliks sought damages from defendant Securitas Security Services USA, Inc. following a fatal auto accident. On April 6, 2008, Feliks was driving with wife Margaret and stepson Christian in Livonia. As the car was turning left on a green arrow, defendant s 2005 Chevrolet Colorado pickup truck, traveling at 61 mph, ran the eastbound red light, broadsiding Kenneth Feliks car on the passenger side. Margaret Feliks was extracted from the car via jaws of life and airlifted to the hospital, where she died of her injuries 2½ hours later. Defendant contended product liability for the accident, asserting the driver s claim of accelerator malfunction including stop-and-go vehicle lunging. The truck s black box, it was further contended, indicated consistent full throttle and steadily increasing acceleration for a half-mile before and right up to the accident. Plaintiff asserted statistics from the National Highway Traffic Safety Administration that reflected only one 2005 year Colorado pickup reporting unintended acceleration, despite 240,000 of such pickups on the road. Also contended were factors such as the driver s negligent driving record, which Securitas was unaware of before the accident. In addition, plaintiff pointed to various objects in the front area that may have come into contact with the accelerator including the driver s cane, found between the driver and the driver s door and a large filing box cramping the front seat, which could have affected driving. The case settled for $2.35 million. Type of action: Auto negligence, wrongful death Type of injuries: Death # 19 Name of case: Feliks, et al., v. Securitas Security Services USA, Inc., et al. Court/Case no./date: Wayne County Circuit Court; NI; Jan. 22, 2010 Names of judges: Wendy Baxter, Paul Teranes Settlement amount: $2.35 million Most helpful expert: Brad Cook, Ann Arbor Attorney for plaintiff: Frederick W. Lauck # 20 Drywall specialist falls, injures head and torso Defendants point blame at each other for accident; parties settle $2.25 million In a negligence lawsuit filed in Livingston County Circuit Court, plaintiff Gregory Tyree sought compensatory damages from defendants Aaron and Jessica Smith; Ronald Goodair; Goodair Builders, Inc.; James Anthony Goodsell; Goodsell Custom Concrete, LLC; Masters Home Improvement and Design, Inc.; Kevin Coombe; and Skidoo Carpentry, LLC, following a fall at a construction site. The Smiths, acting as general contractors for their new construction home, contracted with Goodair to do excavating, basement walls and foundation. Goodair, in turn, subcontracted with Goodsell to basement flatwork. Masters was contracted to do eight projects, including gutters, siding, insulation, and roofing. Masters, in turn, subcontracted with Kevin Coombe, who operated Skidoo, to do the home s rough-framing. Tyree, a drywall specialist, was asked by Masters to visit the site and come up with a bid for drywall work. While surveying the site, Tyree stepped on a sheet of cardboard that was covering the basement access. He fell 10 feet onto the concrete. There were no barricades or wooden coverings at the 4-foot-by-9-foot hole, and Tyree was never told that there was a basement. Tyree injured his face, skull, torso and shoulder, lost hearing in one ear, and required extensive surgery to restore his facial nerves. Defendant Masters contended that defendants Smiths, because they called themselves general contractors, were responsible for the damages, not the subcontractors on the job, including Masters. Defendants Smiths asserted that, because Masters hired subcontractors including Coombe and Skidoo without telling the Smiths, Masters was responsible. Defendants Goodair and Goodsell contended they did not place the cardboard atop the basement access. Plaintiff asserted that the contract Masters drafted for the Smiths had a clause that put Masters in control: The direction and supervision of the working forces, including subcontractors, rests exclusively with the builder [Masters], and the owner shall not issue any instructions to, or otherwise interfere with, the workers. Further, it was contended, by referring to contractor labels and safety standards as found in the Occupational Safety and Health Administration (OSHA) and Michigan Occupational Safety and Health Administration (MIOSHA) enforcement-instruction field manuals: Coombe created the hole but did so under Masters employ; Both were responsible for exposing employees to the hole; Masters had one of its workers correct the problem after Tyree was removed from the basement following the injury; and Masters had supervisory authority over the site, based on the contract Masters has with the Smiths. The case settled for $2.25 million, with Goodair, Goodsell and the Smiths settling for $525,000; Masters settling for $850,000; and Coombe and Skidoo settling for $875,000. Type of action: Negligence, nuisance Type of injuries: Head, face, torso, shoulder injuries with residual effects Name of case: Tyree, et al. v. Smith, et al. Court/Case no./date: Livingston County Circuit Court; NO; May 6, 2010 Tried before: Judge Names of judges: Stanley J. Latreille, Theresa M. Brennan Settlement amount: $2.25 million Most helpful experts: David Brayton, Portage; Barry Grant, Southfield; Guy Hostetler, Southfield; Dr. Hassam El-Kashlan, Ann Arbor; Dr. Robert Fabiano, Lansing; Dr. Jae Kim, Flint; Dr. Miguel Perez-Pascual, Flint Insurance carriers: Farm Bureau; Indiana Insurance; Frankenmuth Mutual; State Farm Attorney for plaintiff: John D. Nickola Attorney(s) for defendants: Withheld VISIT OUR WEBSITE AT

13 Cite 25 Mich.L.W. 237 # 21 Officer strikes car while responding to accident Despite flashers being on, siren wasn t; negligence is contended $2.15 million In a confidential lawsuit filed in Macomb County Circuit Court, plaintiff female driver sought compensatory damages from defendant municipal organization following an auto accident. Plaintiff was driving back to her hospital job at 2:30 a.m. At the same time, an officer was responding to the scene of an accident. Though he activated his flashers, he did not activate his siren, as required by law. He struck plaintiff s car, which had the green light at the intersection. Plaintiff went to work that evening and for the next several days. She went to the emergency room one day after the accident complaining of a headache, and, two days later, began feeling neck pain. Her injury was diagnosed as a cervical spine injury, resulting in cervical fusion. The first fusion failed and had to be redone. While the injured area was repaired with surgery, plaintiff developed a chronic pain syndrome, which disabled her from returning to work as a nurse s aide. Defendant contended that three prior car accidents and degenerative arthritis were the real cause of the need for plaintiff s surgeries. It also was asserted that plaintiff could not have been seriously injured in the crash, since she returned to work the night of the accident. In addition, when she did go to the emergency room the next day, she did not complain of neck pain, only a severe headache. As well, defendant asserted comparative negligence, in that the plaintiff did not see the flashers on the police vehicle. Plaintiff contended being unable to see the flashers because of the angle of the intersection (60 degrees) and the fact that it was sleeting at the time of the accident causing a diffusion of light. In addition, it was asserted, the pulsing of the wiper blades and the presence of a strobe light in front of a party store would, to some extent, cancel the pulsating lights on the patrol car. Plaintiff s family physician contended that, although the plaintiff had prior neck complaints, she did not have a herniated disc prior to the accident in question. Plaintiff s treating physicians and one of defendant s IME doctors agreed with plaintiff, supporting the fact that it was not unusual for a disc herniation to manifest itself days or weeks after trauma. Type of action: Auto negligence Type of injuries: Cervical fusion Court/Case no./date: Macomb County Circuit Court; confidential; Sept. 2, 2010 Name of judge: John C. Foster Settlement amount: $2.15 million Special damages: Wage loss in excess of three years Most helpful experts: Dr. Robert Farhat, pain management specialist, Pontiac; Dr. Marc Green, visual expert, Toronto Insurance carrier: St. Paul Fire and Marine Insurance Co. Attorney for plaintiff: Robert F. Garvey # 22 Supermarkets at odds over terms of lease Wal-Mart in same shopping center purportedly violated agreement $2.02 million In a lawsuit filed in Washtenaw County Circuit Court, plaintiff/counter-defendant/third-party defendant Valu Land, Inc. sought damages from defendant/counter-plaintiff/third-party plaintiff Busch s, Inc., asserting fraud and rescission. Busch filed a counterclaim against Valu Land for breach of sublease agreement and breach of personal guaranty agreements. Valu Land, a supermarket, was the sublessee in a January 10, 2011 commercial lease agreement with Busch s, a local chain of supermarkets, after purchasing the assets of a Busch s market in Ypsilanti. When Valu Land s business failed, it defaulted on the sublease, then sued for fraud and rescission. Plaintiff asserted that the Wal-Mart store in the same shopping center expanded its competing products to an amount more than 5,000 square feet by adding food freezers. It was contended that this was in violation of a restriction on the amount of space that could be used for sale of competing products, and that the expansion caused the supermarket to fail. As well, it was asserted that defendant waived its right to enforce the competing-products restriction by executing a tenant estoppel certificate, and that defendant knew the restriction could not be enforced. Defendant contended that, according to Wal-Mart s records, it had always been using more than 5,000 square feet of space for competing products, and that no waiver occurred because the tenant estoppel certificate at issue was signed after Wal-Mart added the freezer, and could not have waived anything. It also was asserted that plaintiff was able to observe what Wal-Mart was and was not selling, and that, with proper due diligence, plaintiff could have discovered all of the information it needed to determine whether Wal- Mart was a threat to its business. Defendant also contended that plaintiff waived its right to sue defendant in the sublease agreement between the parties, because the sublease expressly stated that defendant made no representations or warranties regarding the enforceability of the restrictive covenant on competing products. After trying the case for three days, the parties agreed to facilitate and return to trial if facilitation was unsuccessful. After two sessions, facilitation settled the matter for $2.02 million in favor of defendant/third-party plaintiff Busch s. Type of action: Commercial lease dispute, fraud Name of case: Valu Land, Inc. v. Busch s, Inc., et al. Court/Case no./date: Washtenaw County Circuit Court; CK; Aug. 11, 2010 Tried before: Judge Name of judge: Timothy P. Connors Name of mediator: James A. Fajen Settlement amount: $2.02 million to defendant/thirdparty plaintiff Mediation award: $1 million in favor of defendant/thirdparty plaintiff Attorneys for plaintiff/counter-defendant/third-party defendant: Frederick D. Elias, Christine R. Essique Attorneys for defendant/counter-plaintiff/third-party plaintiff: Angela L. Jackson, Anthony P. Patti # 23 Driver on learner s permit causes crash Suspicion of excess policy prompts investigation, leads to settlement $2 million In a confidential lawsuit filed in U.S. District Court for the Western District of Michigan, but transferred to the Eastern District, plaintiff passenger sought economic and non-economic damages from defendant young driver and defendant parents following an auto accident. Defendant, who was on a learner s permit, was the last in a line of vehicles to pass a slow-moving vehicle. He realized midstream in his passing maneuver that he could not successfully pass. He crossed FRASER over to the opposite shoulder, then overcorrected, striking the vehicle, in which older-than-60 plaintiff was a passenger, head-on. Plaintiff s injuries included multiple pelvic fractures; tibia and fibula fractures; herniated discs at C3-4 and C5-6; onset of central canal and lateral recess stenosis at L2-3, L3-4 and L4-5. There also was leg length discrepancy, with the left leg about SOUWEIDANE an inch longer than the right; drop foot; and knee damage requiring additional surgery. As well, plaintiff claimed psychological distress, and loss of enjoyment of life and consortium with his wife, in addition to chronic and debilitating pain. Michigan Lawyers Weekly B13 The carrier initially disclosed a $250,000 primary policy, but plaintiff s counsel did an asset investigation of defendants, which raised the likelihood of an excess policy. Upon prompting carrier to search for more insurance, a substantial excess policy was disclosed. The matter settled for $2 million. Type of action: Auto negligence Type of injuries: Pelvic, tibia and fibula fractures, herniated discs, leg length discrepancy, drop foot, psychological distress, chronic and debilitating pain Court/Case no./date: U.S. District Court, Eastern District of Michigan; confidential; May 24, 2010 Tried before: Facilitation Name of facilitator: Martin G. Waldman Settlement amount: $2 million Most helpful expert: Barry Grant, CPA, Southfield Attorneys for plaintiff: Stuart A. Fraser, Edward E. Souweidane Attorney(s) for defendant: Confidential # 24 Source of cognitive, speech defects disputed Plaintiff: Distress not recognized; defense claims genetic problems $1.9 million In a confidential lawsuit, plaintiff mother sought compensatory damages from defendant hospital for medical malpractice during delivery that resulted in birth trauma. At around 8 a.m. on Feb. 24, 2005, plaintiff went to the hospital. Her physician did not come in to examine her. The fetal monitoring strips indicted the baby was not in any distress. At 1:15 p.m., Pitocin was administered continuously. By 7:30 p.m., the fetal monitoring strips were beginning to show repetitive variable decelerations, as well as late decelerations. This pattern persisted and worsened over the next four hours, and at 8:30 p.m., plaintiff was fully dilated and zero station. Despite persistent decelerations and decline in long-term variability and absent short-term variability between p.m., plaintiff continued in labor. At 11:30 p.m., a discussion took place about assisted delivery. At 11:44 p.m., forceps were applied through 3½-inch contractions, and the baby was born. His Apgars scores were 3, 4 and 5, and his blood gasses showed metabolic acidosis. He had seizures within 24 hours, and was diagnosed with a hypoxic ischemic injury. Although the child is fully ambulatory, he does have hyptonia. He has significant speech deficits, difficulty in swallowing, and cognitive deficits, making it unlikely he will be self-supporting in the future. Plaintiff asserted child s injuries were caused by failure to recognize distress during labor and deliver the child in a timely manner. Defendant contended child s injuries weren t related to labor events, but rather were the result of a genetic or metabolic abnormality. Following extensive testing to establish the child s current deficits, the matter settled at facilitation for $1.9 million. Type of action: Medical malpractice, birth trauma Type of injuries: Permanent neurologic, speech and cognitive defecits July 2, 2010 Tried before: Facilitation Name of judge: Withheld Name of arbitrator: Bruce Neckers Settlement amount: $1.9 million Most helpful experts: Dr. Louis Dvorkin, neuropsychologist, West Bloomfield; Kaufman Speech Center, Birmingham Attorneys for plaintiff: J. Douglas Peters, Ann K. Mandt Attorney for defendant: David R. Johnson Key to winning: Thorough workup of the case using multiple experts and extensive testing to correctly identify child s permanent injuries Largest Settlements continued on page 14

14 B14 Michigan Lawyers Weekly January 10, 2011 Cite 25 Mich.L.W. 238 LARGEST SETTLEMENTS Continued from page 13 Police officers assault wrong suspect when investigating complaint Man suffers cervical disc herniations; defense says he provoked the attack $1.825 million In a 42 U.S.C and assault and battery lawsuit filed in U.S. District Court for the Eastern District of Michigan, and then submitted to binding arbitration, plaintiff James LeBeau sought economic, non-economic and punitive damages against defendant municipal corporation and its police officers following an assault at plaintiff s home. LeBeau, a 43-year-old small engine mechanic, was alone in his home the night of Feb. 9, 2007, when defendant police officers arrived at the home under the guise of investigating a misdemeanor complaint that occurred earlier that evening at a different house in the same subdivision. The officers, who had had earlier confrontations with LeBeau, pulled him out of the house upon answering the door. Defendants beat and kicked LeBeau, then yanked him up by his neck and applied pepper spray. Plaintiff s independent witness, who lived across the street from plaintiff, saw the entire episode and confirmed plaintiff s testimony. The altercation led to severe cervical disc herniations, and LeBeau underwent an anterior, cervical discectomy and fusion at C3/C4 and C6/C7. Defendants admitted their mistake in going to plaintiff s house in the first place. However, they denied liability claiming that the plaintiff provoked the incident by initially assaulting the officers when he opened his front door. Plaintiff was awarded $1.825 million in binding arbitration. Type of action: 42 U.S.C. 1983, assault and battery Type of injuries: Four cervical disc herniations # 25 Name of case: LeBeau v. Confidential Municipal Corporation and Police Officers Court/Case no./date: U.S. District Court, Eastern District of Michigan; confidential; May 13, 2010 Tried before: Arbitration Names of arbitrators: Barry J. Goodman, Roger Wolcott, Gus Morris Demand: $800,000 Highest offer: $90,000 Arbitration award: $1.825 million Special damages: Lifetime economic and non-economic damages Most helpful expert: Dr. Karol Zakalik, neurosurgeon, Royal Oak Insurance carriers: Self-insured and excess carrier Attorneys for plaintiff: Vincent R. Lorelli, Malgorzata Lorelli Key to winning: Thorough investigation at inception of case to rebut police officers version of events # 26 Patient s low sodium leads to complications Plaintiff s Daubert motion OK d, defense causation is dropped $1.8 million In a confidential lawsuit, plaintiff personal representative estate for plaintiff decedent, sought damages from defendant physicians for wrongful death stemming from medical procedures following an auto accident. Plaintiff s decedent, a 40-year-old father of two, was involved in a serious car crash, and was subsequently hospitalized in a local hospital. Decedent had serious skull fractures and brain bleeding. He developed low sodium (hyponatremia) just prior to transfer to the second hospital. He was stable at transfer, but then his sodium dropped even further. He also developed cerebral edema from his hyponatremia. He was transferred to a second hospital, which eventually treated the hyponatremia, but the cerebral edema worsened, and he developed brain herniation and died. Defendants contended that the hyponatremia was properly treated, and denied the existence of cerebral edema. It also was asserted that the patient died because of vasospasm secondary to traumatic subarachnoid hemorrhage. Plaintiff s major hurdle was to overcome the defense of vasospasm and the argument that the car crash led to a closed-head injury that would have prevented decedent from providing for his family in the future. The case involved experts in trauma surgery, neurosurgery, nephrology, neuropathology, and neuroradiology. It was noted that the trial judge granted plaintiff s Daubert motion and struck the defendants expert s causation testimony. The court ruled that the evidence clearly showed a brain stem hematoma because of inward intracranial pressure rather than because of a brain stem infarct secondary to vasospasm, which the defendants had postulated. After case evaluation and completion of all experts depositions, the case settled for $1.8 million. Type of action: Medical malpractice Type of injuries: Wrongful death July 2010 Settlement amount: $1.8 million Attorneys for plaintiff: Brian J. McKeen, Terrance J. Cirocco, Phillip B. Toutant # 26 Truck drivers collision leads to laminectomy Defense says spine was weakened, would have needed eventual surgery $1.8 million In a confidential lawsuit, plaintiff truck driver sought compensatory damages from defendant truck driver following a collision. Plaintiff, a 55-year-old professional truck driver, was rear-ended by the defendant, also a professional truck driver, while stopped at a red light. Plaintiff suffered from pre-existing degenerative arthritis in his lumbar spine, which required periodic lumbar epidural steroid injections for temporary pain relief. The crash aggravated this condition, disabling him from returning to work, causing foot drop problems, and ultimately necessitating a lumbar laminectomy with fusion at L1-2 and L2-3. Defendant contended plaintiff caused the collision by slamming on the brakes to stop at the light. It also was asserted that plaintiff s degenerative lumbar spine would have required surgery and disabled him anyway, and that undercover surveillance showed plaintiff exaggerating his disability. The case settled for $1.8 million. Type of action: Truck negligence Type of injuries: Lumbar laminectomy with fusion at L1-2 and L2-3, drop foot Aug. 24, 2010 Name of judge: Confidential Name of facilitator: Joseph G. Lujan Settlement amount: $1.8 million Most helpful expert: Dr. Bradley D. Ahlgren, orthopedic surgery, Troy Attorney for plaintiff: Daniel P. Beck Driver admits fault for crash; injury disputed Defense asserts recovery was good and TBI wasn t serious; case settles $1.75 million In a third-party automobile negligence lawsuit filed in Wayne County Circuit Court, plaintiff Steven M. Bixby sought compensatory damages from defendants Palmer Moving & Storage Co. and Gerald Reason following an auto collision. In August 2008, Bixby was stopped at a red light on Franklin Road at Northwestern Highway in Oakland County. The light turned green and he proceeded into the intersection where he was struck by a moving van owned by Palmer Moving and Storage and driven by Reason. Bixby s vehicle was totaled, and he suffered herniated discs, along with a traumatic brain injury with personality changes. Reason accepted responsibility for the crash, admitting at the time of the accident he was lost and that he had no idea of the color of the light when he entered the intersection. There also was deposition testimony from four witnesses that Reason ran the red light and caused the crash. Defendants contended that traumatic brain injury was not serious and that the plaintiff had made a very good recovery post-surgery. The matter settled for $1.75 million. Type of action: Third-party automobile negligence Type of injuries: Herniated discs requiring surgery, traumatic brain injury with personality changes Name of case: Bixby v. Palmer Moving & Storage Co., et al. Court/Case no./date: Wayne County Circuit Court; NI; June 23, 2010 Name of judge: Robert L. Ziolkowski Settlement amount: $1.75 million Insurance carrier: New Hampshire Insurance Co. Attorney for plaintiff: Steven M. Gursten Attorney for defendant: Patrick F. Geary # 27 GURSTEN only $6.45 /week Plus receive access to the new digital edition of Lawyers Weekly Call or subscribe online at and start reading Lawyers Weekly s new digital edition today.

15 Cite 25 Mich.L.W. 239 Patient says birth injuries were apparent Defendant: Cognitive deficits in child were from genetic abnormality $1.75 million In a confidential medical-malpractice and birth-trauma lawsuit, plaintiff next friend of plaintiff minor sought damages from defendant hospital for motor and cognitive deficits due to asphyxia causing hypoxic-ischemic encephalopathy following birth. The case was complicated by an atypical presentation of interpartum hypoxic-ischemic encephalopathy, namely the absence of spacticity or cerebral palsy. The defendants argued that the child s injuries were caused by a genetic abnormality or other unpreventable etiology. However, plaintiffs asserted, there was strong evidence of birth asphyxia and global injury to the child s brain. Chiefly, plaintiff s counsel used the charting of the treating neonatologists, who diagnosed the child with hypoxic-ischemic encephalopathy. Moreover, it was contended, the labor and delivery summary stated that the child was delivered due to non-reassuring fetal heart tones/fetal distress. As a result of the failure to perform an earlier cesarean section, the minor child suffers from motor and significant cognitive impairments. The matter settled for $1.75 million. Type of action: Medical malpractice, birth trauma Type of injuries: Motor and cognitive deficits due to asphyxia causing hypoxic-ischemic encephalopathy Court/Case no./date: Confidential; confidential; July 30, 2010 Settlement amount: $1.75 million Attorney for plaintiff: Brian J. McKeen # 27 MCKEEN # 28 Child suffers brain, developmental injuries It s argued that signs of placental abruption on monitor were ignored $1.65 million In a confidential medical-malpractice and birth-trauma lawsuit, plaintiff next friend of plaintiff minor sought damages from defendant medical organization for permanent brain injury to the newborn child, and mild learning disabilities/developmental delays following birth. Mother presented at term with onset of labor approximately one hour prior to arrival. Initial strip was nonreassuring. Membranes were ruptured by the medical staff and internal leads placed. Fetal monitor strips showed evidence of tachysystole (contractions coming too close together) and elevated resting tones from the onset of the placement of internal leads. Attending physician did not appear for more than two hours after the mother presented to the hospital. There was a factual dispute as to whether the attending physician was notified of the abnormalities on the strip prior to arrival at the hospital. When attending physician arrived, an emergency C- section immediately ordered. A significant concealed abruption was found. Child had classic presentation of acute profound HIE, with low Apgar scores, acute profound metabolic acidosis, seizures, and classic radiographic presentation of acute profound injury. Plaintiff contended that the residents and nursing staff failed to appreciate the signs of placental abruption evident on the fetal monitor strips after placement of the internal leads and failed to so notify the attending. (There was no documentation that they appreciated the abnormalities on the strip or mother s complaints of unusual abdominal pain.) It also was asserted that the damage was because of acute and profound hypoxia within the last 30 minutes prior to delivery. In addition, it was contended, had the signs of abruption been appreciated by the staff in a timely fashion, an emergency C-Section would have January 10, 2011 been performed in sufficient time to avoid the permanent brain injury. Defense contended that, because there was no vaginal bleeding and no documentation of unusual complaints of pain from the mother, it was appropriate for the staff to watch the mother, even in the presence of tachysystole and elevated resting tones until such time as the fetal monitor strip began to show signs of fetal decomposition. As well, it was asserted that the child s injuries were mild and were not related to the hypoxic event. Even if was related, it was added, the child s future would not be impacted. Experts in OB/GYN, maternal fetal medicine, pediatric neurology, child psychology, neuropsychology, life care planning, and economics were offered by both sides. The matter settled for $1.65 million. Type of action: Medical malpractice, birth trauma Type of injuries: Permanent brain injury to newborn child, mild learning disabilities/developmental delays Sept. 24, 2010 Settlement amount: $1.65 million Attorneys for plaintiff: Euel W. Kinsey, Brian J. McKeen Estate: Daughter suffered emotional trauma from fatal crash After drunk driver T-bones car, girl, 15, witnesses mother dying $1.586 million In a wrongful death/dram shop lawsuit filed in Oakland County Circuit Court, the Estate of Agnes Dregely and Laszlo Dregely, next friend to plaintiff s minor Vivian Dregely, sought compensatory damages from defendants Deborah Foust and It s A Matter of Taste following a fatal auto accident. On March 7, 2008, Agnes Dregely, 49, was driving with her 15-year-old daughter, Vivian. At 9:51 p.m., Dregely came to a complete stop at a stop sign at the intersection of M-59 and Hospital Road in Waterford Township, and looked both ways. When traffic cleared, she proceeded to pull across the lanes in order to go westbound on M-59. Foust s vehicle appeared, speeding eastbound on M-59 at 67 mph, which was 17 mph over the speed limit. Dregely could not avoid Foust s vehicle, which T-boned the side of Dregely s car before turning over. Despite her seat belt being on, Agnes Dregely s door post was ripped off, she was torn from the car, and the car was bifurcated. Vivian immediately went to her mother s aid, holding her while waiting for someone to help them. Foust was belligerent and visibly intoxicated when the police arrived, and informed the responding officer that, if her car had not flipped over, they never would have caught her because she would have driven away. Foust refused to provide her blood alcohol level via a breathalyzer test, but after a warrant was issued and Foust s blood alcohol level was obtained, it was 0.24 three times the legal limit more than two hours after the incident. Agnes and Vivian Dregely were eventually transported to Pontiac Osteopathic Hospital, where Agnes died at approximately 12:17 a.m. March 8, Plaintiff asserted defendant It s A Matter of Taste broke dram shop law by serving defendant Foust when she was visibly intoxicated, thus resulting in the accident. It also was contended that plaintiff minor, despite not suffering physical injuries in the accident, was inflicted with psychological trauma for being forced to witness the process of her mother s death, with no one beside her for comfort or help. Plaintiff asserted insurance policy limits were not sufficient compensation for the loss of one life and the scarring of another. Defendants contended decedent was at fault for failing to yield by pulling out onto the roadway from a side street. As well, defendant It s A Matter of Taste asserted not serving defendant Foust after she became visibly intoxicated. The matter settled for $1.586 million. Type of action: Wrongful death, dram shop Type of injuries: Death, infliction of emotional distress Name of case: Estate of Agnes Dregely, et al., v. Foust, et al. Court/Case no./date: Oakland County Circuit Court; NO; Aug. 17, 2010 Name of judge: Nanci J. Grant # 29 Settlement amount: $1.586 million Michigan Lawyers Weekly B15 Insurance carriers: North Pointe (It s A Matter of Taste); Farmers (Foust) Attorney for plaintiff: James O. Elliott Attorneys for defendants: Michael C. Ewing and Thomas J. Ryan (It s A Matter of Taste); Paul R. Knight (Foust) Key to winning: Asserting severity of damages in such a way that it would become clear to all parties involved that insurance policy limits were not sufficient compensation for the loss of one life and the scarring of another #30 Medicaid False Claims Act asserted in scheme Drug improperly covered, was not FDA-approved for weight-loss $1,503,209 In a whistleblower lawsuit filed under federal and several state False Claims Acts, and included a claim under the Michigan Medicaid False Claims Act, MCL et seq., two former pharmaceutical sales representatives of defendant Ortho-McNeil-Janssen Pharmaceuticals, Inc. (OMJPI) asserted improper marketing of one of its blockbuster drugs, Topamax. Topamax is approved by the Food and Drug Administration (FDA) as an adjunct therapy to treat epileptic seizures. However, it was asserted, OMJPI regularly instructed its sales representatives to market the drug for weight loss, pain management, and to manage psychiatric conditions such as bipolar disorder and drug/alcohol dependencies, for which Topamax did not have FDA approval. Federal law prohibits drug manufacturers from marketing drugs for non-fda approved usages, which is commonly referred to as off-label marketing. One of Topamax s side effects is dramatic weight loss, so physicians treating the other off-label conditions were alleged to be prime targets for the marketing efforts. The Michigan Medicaid program (and other state/federal health care programs) does not provide coverage for pharmaceuticals prescribed for certain offlabel uses; therefore, it was contended, OMJPI knowingly caused false or fraudulent claims for Topamax to be submitted to, or caused purchases by, the Michigan Medicaid program. While the case was originally filed in 2003, it remained under seal for nearly seven years while the federal government investigated the plaintiff s allegations. During that time, Plaintiffs and their counsel contributed to the investigation by assembling a team of researchers and forensic accountants to engage in number crunching, claims analysis, and other research. The complaint was subsequently amended multiple times to include causes of action under newer state False Claims Acts, including the Michigan Act. In April 2010, a settlement was reached whereby OMJPI agreed to pay $75.37 million to the federal government and Medicaid Participating States (including Michigan) to resolve the civil allegation of off-label marketing. This recovery includes $1,503,209 under the Michigan Medicaid False Claims Act. As well, HARON $619,266 was returned to the Michigan Medicaid Trust Fund, with the remaining monies being returned to the government. Type of action: Michigan Medicaid False Claims Act, federal False Claims Act, other state False Claims Acts Type of injuries: Defrauding of NAVARRO Michigan Medicaid program (and other state and federal health care programs) by submitting payment claims for an anti-epilepsy drug that was improperly marketed off-label and therefore not covered by Medicaid Name of case: U.S. ex rel. Mahar, et al. v. Ortho-McNeil Pharmaceutical, Inc. Court/Case no./date: U.S. Federal Court for the District of Massachusetts; ; April 2010 Name of judge: William G. Young Settlement amount: $1,503,209 (part of a $75.37 million total national settlement) Attorneys for plaintiff: David L. Haron, Monica P. Navarro Attorneys for defendant: King & Spalding, LLP Largest Settlements continued on page 16

16 B16 Michigan Lawyers Weekly January 10, 2011 Cite 25 Mich.L.W. 240 LARGEST SETTLEMENTS Continued from page 15 Man hit by car asserts driver was on the job Frolic-and-detour argued by defendant at time of the accident $1.49 million In a confidential lawsuit, plaintiff motorcyclist sought compensatory damages from defendant driver following a collision. Plaintiff s motorcycle struck defendant s car when the driver failed to yield at an intersection, and suffered pelvic fractures and a closed-head injury. While the plaintiff, 54, is able to drive again and has resumed some normal activities, he no longer can work as a paramedic. Defendant contended being non-party at fault because of sight obstructions at the intersection. It was further asserted that defendant was on a frolic-and-detour, instead of in the course of defendant s employment, as defendant had gone house shopping on returning from work delivering newspapers. The trial judge granted plaintiff s motions summary disposition that defendant was negligent, and that defendant was in fact in the course of employment at the time of the accident. The matter settled for $1.49 million. Type of action: Motorcycle accident Type of injuries: Pelvic fractures, closed-head injury # 31 Jan. 16, 2010 Name of judge: Withheld Settlement amount: $1.49 million Most helpful experts: Gary W. Elliott, neuropsychologist, Mishawaka, Ind.; Dr. Alan G. Lewandowski, neuropsychologist, Kalamazoo; Gary J. McDonald, accident reconstructionist, Grand Rapids; William D. King, economist, Lansing Attorneys for plaintiff: James B. Ford, William K. Murphy # 32 Unstable pulmonary function leads to teen s brain damage Boy suffers reaction after allergy shot was given at wrong time $1.4 million In a confidential lawsuit, plaintiff minor and plaintiff next friend sought compensatory damages from defendants, an allergy specialist and his professional corporation, after developing severe, global brain damage following an allergy shot. Plaintiff minor, 13, began treatment with the doctor, who specialized in allergy medicine for progressive asthma symptoms. In an effort to control the boy s asthma, immunotherapy allergy shots were ordered, and the boy was scheduled to receive weekly injections. After several weeks of therapy, the boy presented to the specialist with exacerbated asthma symptoms, and advised the doctor that he had run out of his prescribed medication. He complained of shortness of breath. A pulmonary function study was significantly abnormal. He was started on a Prednisone taper. The next day, the boy presented for his regularly scheduled immunotherapy allergy injection. The doctor was not present on site, so the injection was administered by a nurse who had not been licensed for several years. Almost immediately after the injection was given, the boy developed an acute anaphylaxis reaction in the form of respiratory distress and loss of consciousness. The nurse and an unlicensed physician s assistant began CPR and administered epinephrine. Upon arrival, EMS technicians intubated and began IV epinephrine. Cardiac monitoring revealed pulseless electrical activity only. The boy was transported to a local hospital. Resuscitative efforts eventually achieved a return of normal sinus rhythm. The boy was eventually transported to a tertiary care facility, where he remained in a coma for several weeks. Although he regained consciousness, he was severely brain damaged and suffered near-complete quadriplegia, and will require lifelong, 24-hour care. Plaintiff s immunology expert asserted that the last allergy injection should not have been given in light of the fact that the boy had diminished and unstable pulmonary function. The expert also contended that an anaphylactic reaction is a well-known risk of immunotherapy, and allergy shots must only be given to patients who have sufficient pulmonary reserve to endure such a reaction. Shortly into discovery, the case was settled at a second facilitation for $1.4 million. Type of action: Medical malpractice Type of injuries: Brain damage resulting in near-complete quadriplegia June 14, 2010 Name of judge: Confidential Settlement amount: $1.4 million Attorney for plaintiff: Robert B. Sickels # 32 Driver says rear-ending altered his life course Defense argues delayed complaints of knee pain, prior back surgery $1.4 million In a lawsuit filed in Oakland County Circuit Court, plaintiff Bahaa Qasawa sought compensatory damages from defendants Thomas Lahey and S&G Imported Car Parts following an auto accident. On June 23, 2008, Qasawa, a 41-year-old pharmaceutical sales representative, was exiting Interstate 75 on the 12 Mile Road ramp in Madison Heights. He was stopped for a red light on the service drive when Lahey rear-ended him, causing about $2,000 worth of damage to Qasawa s vehicle. Qasawa did not seek medical attention for five days following the crash. Eventually, it was discovered that he suffered from a disc herniation at L5-S1, and a torn medial meniscus in both knees. Plaintiff treated extensively for his injuries, which included numerous epidural and caudal block injections, L5-S1 anterior radical diskectomy, fusion, and instrumentation with plates and screws, and complete synovectomy, meniscal debridement, chondroplasty and arthoplasty of each knee. Defendants contended that plaintiff could still do his job he worked continuously at obtaining his MBA degree at Walsh College as he was never disabled from driving. The defense doctors indicated that his knee injuries were not related to the accident and that it would be virtually impossible for him to tear both of his meniscus from this type of accident. It also was asserted that plaintiff did not complain of knee pain for more than three months following the accident. As well, plaintiff also failed to mention in his interrogatories and deposition testimony prior low back injuries (he had multiple back injuries in the past, where he was disabled from employment and was on heavy restrictions). Testimony from plaintiff s treating physicians, as well as his primary care physician who had treated him prior to the accident, rebutted defendants arguments regarding the etiology of plaintiff s medical conditions. In addition, plaintiff s counsel attended every single defense medical evaluation, which was helpful in arguing against the adverse opinions of these defense medical examiners. It also was contended that, through substantial time spent discovering and, ultimately, demonstrating, the injuries had a significant impact on plaintiff s life. Numerous photographs depicting plaintiff engaging in a variety of pre-crash activities were used as evidence of the alteration of his life course. An arbitration panel issued a $1.4 million award in plaintiff s favor. Type of action: Third-party auto negligence Type of injuries: Lumbar disc herniation resulting in anterior diskectomy and fusion, torn meniscus in left and right knees resulting in surgery on each Name of case: Qasawa v. Lahey, et al. Court/Case no./date: Oakland County Circuit Court; NI; Nov. 10, 2010 Tried before: Arbitration Name of judge: Michael Warren Arbitration award: $1.4 million Attorneys for plaintiff: Michael J. Morse, Joel R. Safir # 33 Flexion causes spinal cord ischemia in teen Standard of care argued by defense for tracheal resection procedure $1.375 million In a confidential lawsuit, plaintiff minor sought damages from defendant hospital for quadriplegia caused by negligent surgical positioning. Plaintiff was a 16-year-old with lethal cancer of the trachea. He was scheduled for a tracheal resection procedure in Postoperatively, in order to allow healing of the circumferential trachea resection and anastomosis, the boy s neck was held in a flexed position while medically paralyzed for eight days. At no point postoperatively was the boy s neurological status assessed. When the paralytic drug was reversed, it was discovered that the patient had suffered a spinal cord injury leading to quadriplegia. Plaintiff asserted that this complication, which was unreported in the world s medical literature, occurred because an excessive degree of flexion was used causing spinal cord ischemia. Defendants contended that they followed standard protocols for immobilization and the risk was inherent to the surgery, and that damages should be limited due to the boy s cancer. The matter settled for $1.375 million. Damages were limited due to a dramatically decreased life expectancy because of the lethal cancer. Type of action: Medical malpractice Type of injuries: Quadriplegia caused by negligent surgical positioning April 13, 2010 Settlement amount: $1.375 million Attorney for plaintiff: Brian J. McKeen # 34 Hospital accused of not responding to fetal stress Intervention at birth should have been earlier, assert experts for the plaintiff $1.35 million In a confidential lawsuit filed in Macomb County Circuit Court, plaintiff next friend of plaintiff minor sought damages from defendant hospital and defendant obstetrician for negligent failure to timely and properly respond to signs of fetal distress during the labor and delivery process for the minor child. The mother presented at 40 weeks and three days of pregnancy, and her cervix was found to be 2 centimeters dilated. Membranes were artificially ruptured when the baby was at minus 4 station; this is extremely dangerous and contraindicated, as it can cause acute cord prolapse (pinching off of the umbilical cord when it leaves the uterus before the fetus). Three hours later, a fetal heart rate monitor began to show repetitive deep variable decelerations of the baby s heart rate. As the labor progressed, nursing staff noted dark red vaginal bleeding, followed by decreasing heart rate variability, another indicator of fetal distress. Despite several hours of decreasing variability, the labor nurse charted the pattern as reassuring. For hours, the labor was continued with the labor-inducing drug pitocin, despite continuing late variable decelerations and bleeding consistent with a placental abruption. Delivery was finally achieved vaginally with forceps. Plaintiffs experts testified that intervention should

17 Cite 25 Mich.L.W. 241 have occurred much earlier. Moreover, it was contended, the failure of the obstetrician to respond to the worsening uterine environment was so significant that plaintiffs nursing expert testified that the nurses in the case were negligent for failing to invoke the chain of command and seek intervention from the physician s supervisors. The baby was born floppy, with flaccid tone, poor color, requiring oxygen. Because of these injuries, it was asserted, the child suffered global neurological injury. He had a decreased full scale IQ, and significant learning disabilities. Defendants contended that the infant s condition at birth was incompatible with an acute intrapartum asphyxia, specifically that the child went home with the mother two days after birth and the Apgar score and blood gas did not suggest any severe level of hypoxia. It also was asserted that the cause of the child s onesided deficits was a stroke in utero, remote from term. Defendants neuroradiology experts opined that the child s injury occurred weeks before delivery. Plaintiffs contended that there is medical literature that indicates that a leading cause of perinatal stroke is intrapartum hypoxic ischemic encephalopathy. As well, neuroimaging showed global changes rather than a single infarct of one arterial distribution. The matter settled for $1.35 million. Type of action: Medical malpractice, birth trauma Type of injuries: Mild one-sided deficits of fine and gross motor skills Court/Case no./date: Macomb County Circuit Court; confidential; June 15, 2010 Name of judge: Withheld Settlement amount: $1.35 million Attorney for plaintiff: Brian J. McKeen SUV is sandwiched between two trucks Defendant s log records contended as falsified, pot found in his system $1.25 million In a confidential lawsuit, plaintiffs husband and wife sought compensatory damages from defendants truck driver and trucking company following an auto accident. Plaintiffs, who were in their sixties, were driving in their SUV. When they were stopped in traffic behind a semi-truck, a truck driven by defendant truck driver rear-ended them and did not brake, sandwiching the SUV between the two trucks. Both plaintiffs had aggravations of pre-existing lumbar, cervical issues and mild traumatic brain injuries. Defendants contended plaintiffs injuries to the plaintiffs were pre-existing, and the plaintiffs had been taking medications for the injuries prior to the collision. It was further asserted that the ages of the plaintiffs and their life expectancies did not warrant substantial damages. Also contended was that the claimed economic damages (i.e., excess replacement services) were speculative. Plaintiffs emphasized MCL # 35 FRASER SOUWEIDANE , which provides that there is no reduction to present value for both economic and non-economic damages when the plaintiff is older than 60 at the time of judgment. It further was contended that defendant truck driver had falsified log records and had marijuana in his system. After two facilitations, the matter settled for $1.25 million. Type of action: Vehicular negligence Type of injuries: Lumbar and cervical aggravation, arthroscopic shoulder surgery Feb. 25, 2010 Tried before: Facilitation Name of arbitrator: Daniel P. Makarski Settlement amount: $1.25 million Attorneys for plaintiff: Stuart A. Fraser, Edward E. Souweidane January 10, 2011 # 36 Woman: Herniated discs are result of crash Degenerative changes to spine are disputed as pre-existing $1.15 million In a third-party auto-negligence case filed in Oakland County Circuit Court, and handled through arbitration, plaintiff Lisa Dunne sought damages for an automobile accident in which defendant Jennifer Franz failed to stop or slow her vehicle down and rear-ended plaintiff s vehicle, which was stopped at a red-light. Plaintiff contended that, as a result of the Aug. 8, 2008, accident, the 42-year-old sustained herniated discs that required surgery at lumbar and cervical areas of the spine. In July 2009, Dunne underwent a complete bilateral laminectomy for decompression at L4 and L5; a complete radical discectomy at L5-S1; and an interbody fusion at L5-S1 and at L3-4. On Feb. 4, 2010, Dunne underwent a complete radical anterior cervical discectomy at three levels: C4-5, C5-6 and C6-7. Defendant admitted negligence, but denied that the accident caused or aggravated Dunne s injuries. Defendant contended that the injuries were pre-existing, and that plaintiff s medical records showed evidence of degenerative changes prior to the accident. Plaintiff was able to establish that, while there may have been degenerative changes in her spine, virtually everyone has some level of degenerative changes, and that plaintiff was asymptomatic prior to the accident. Plaintiff also was able to show that, prior to the accident, she lived an active lifestyle which included biking, walking and gardening, and after the accident was unable to participate in any of these activities. The arbitration panel awarded $1.15 million to the plaintiff. Type of action: Third-party auto negligence Type of injuries: Herniated discs Name of case: Dunne v. Franz Court/Case no./date: Oakland County Circuit Court; NI; July 22, 2010 Tried before: Arbitration Neutral arbitrator: James J. Rashid Demand: $1.8 million Highest offer: $500,000 Arbitration award: $1.15 million Most helpful experts: Dr. Lawrence Rapp, neurosurgery, Clarkston; Dr. Nadine Jennings, pain management and rehabilitative medicine, Bloomfield Hills Insurance carrier: Nationwide Attorney for plaintiff: Scott P. Batey Plaintiff arbitrator: Jules B. Olsman Attorney for defendant: Leonard A. Henk Defendant arbitrator: Thomas J. Azoni Key to winning: Plaintiff s counsel building a relationship with treating physicians, allowing him to know and understand what they would be comfortable with in testifying prior to their testimony, and allowing him to take full advantage of their testimony # 37 Two drivers at odds over who caused accident Reconstructionist asserts both had opportunity to react to event $1.1 million In a confidential auto negligence lawsuit, plaintiff driver sought compensatory damages from defendant driver following an auto accident. At a store, plaintiff, 23, was exiting the passenger side of a van in which he was riding when he was struck by a car. The striking car had just been involved in a collision with a septic tank truck within a T-section adjacent to the store s parking lot. Plaintiff s injuries included grade III open left fibulatibia fractures; perforated bowel and intra-abdominal Michigan Lawyers Weekly B17 bleeding; right ankle joint dislocation with gross instability; right open pelvic fractures with penetrating lacerations; left hip and pelvic fractures; right rib fractures; and a left below-the-know amputation one year following the collision because of infection. The intersection consisted of a roadway with a stop sign and a through roadway that had no traffic devices. The septic tank truck was required to stop at the stop sign before entering the intersection, and the defendant driver was on the through roadway. The truck driver was attempting to pull straight across the T-section into the store s parking lot at the time of the crash. Both drivers argued that the other was at fault for the collision. The truck driver said he did not see the defendant s car approaching because it was going 70 mph in the posted 55 mph zone, and contended that because the car was speeding, that driver lost the right of way. The defendant driver asserted the truck never stopping at the stop sign, but rather rolled through it and into the intersection before heading for the parking lot. Plaintiff s evidence asserted both drivers at fault for the collision and proximate cause for the injuries. The accident reconstructionist was able to demonstrate the speeds of both vehicles and each driver s sight and stopping distances, and that each driver had ample opportunity to perceive and react to the other driver s errors. The matter was settled for policy limits of all available insurance coverage, totaling $1.1 million. Type of action: Auto negligence Type of injuries: Fibula-tibia fractures, perforated bowel, hip, rib and pelvic fractures, left below-the-knee amputation April 7, 2010 Name of judge: Withheld Settlement amount: $1.1 million Insurance carriers: Auto-Owners, Progressive Attorney for plaintiff: Bonnie Y. Sawusch # 38 Negligence, injury causation are contested Spine damage, herniation argued as not being tied to auto accident $1,003,500 In a confidential lawsuit filed in Wayne County Circuit Court, the plaintiff sought damages for third-party automobile negligence, underinsured motorist benefits, and outstanding No-Fault PIP benefits. On July 25, 2007, the 36-year-old plaintiff was attempting to turn left onto Canton Center Road in Canton. While he was turning, another driver, who was attempting to proceed straight through the light, struck his vehicle. Plaintiff reported to the emergency room later that night with complaints of lower back pain. An initial MRI of his lumbar spine was read by the neuroradiologist as L4-5 lumbar disc degeneration. In November 2007, he fell down a flight of stairs as a result of a shooting pain from his back into his leg. He injured his elbow in that fall, which required an ulnar nerve release surgery. A subsequent MRI, after the fall, revealed an L4-5 disc herniation. Plaintiff underwent a surgery at L4-5 to remove part of the herniated disc. Defendant contended that plaintiff had a degenerated spine before the accident and he suffered the herniation in the November 2007 fall, and not the car accident. It was further asserted that he fell because of his unstable knees and because he had a history of falling and suffering injuries on numerous occasions before the accident. It also was noted that plaintiff had a history of lower back pain radiating into his leg dating to 2003, as he weighed 350 pounds and had seven prior knee surgeries. Plaintiff presented detailed depositions of Hastings Mutual s PIP adjusters and underinsured motorist adjuster to obtain several admissions about the facts in the case. After deposition, Hastings PIP adjuster admitted that plaintiff s back injury was related to the crash, all treatment should be paid for, and if it was not paid for, then Hastings would be acting unreasonably. The case settled at mediation for $1,003,500, broken down as $100,000 in third-party negligence from Auto- Owners; and $775,000 underinsurance benefits and $128,500 PIP benefits from Hastings Mutual. Largest Settlements continued on page 19

18 B18 Michigan Lawyers Weekly January 10, 2011 Cite 25 Mich.L.W. 242 MICHIGAN LAWYERS WEEKLY Reprints The convenient, affordable way to add depth and style to your marketing program: Enhance marketing packages and press kits Provide practice specialty literature Develop direct mail and campaigns Present information at conferences and seminars Provide instant access to articles on your website Reprints Paper reprints of articles, book reviews, news items and verdicts & settlements, are produced on glossy stock, in black & white or color. PDF File Michigan Lawyers Weekly offers this versatile option for clients seeking a one-size-fits-all product. It can be posted on your website, sent out in s or used to print your own hardcopies. Electronic Reprints We offer specially formatted web pages to link to from your website. Publishing your reprint online allows you to point immediate prospects or clients directly to your most noteworthy accomplishments. Custom Plaques Custom-designed plaques commemorate your achievements with a beautiful, sleek and sophisticated display in your office, reception area or home. Photos Color images that have been shot by, and appeared in, Michigan Lawyers Weekly are saved in high-resolution to CD-ROM. They can be placed on your Web site, or taken to a photo processor to be printed in any size from 4" x 6" to 24" x 36". For more information on pricing or how to order, please contact Charlene Boccaccio at (248) or [email protected]

19 Cite 25 Mich.L.W. 243 LARGEST SETTLEMENTS Continued from page 17 Type of action: Third-party automobile negligence, underinsured motorist benefits, outstanding No-Fault PIP benefits Type of injuries: L4-5 herniated disc, left elbow ulnar neuropathy Court/Case no./date: Wayne County Circuit Court; confidential; March 9, 2010 Tried before: ADR Name of judge: Gershwin A. Drain Settlement amount: $1,003,500 Insurance carriers: Auto-Owners, Hastings Mutual Attorneys for plaintiff: Michael J. Morse, Donald J. Cummings MORSE CUMMINGS January 10, 2011 # 39 3rd co-owner says other two breached contract Ousting shareholder was not oppression, defense claims $1 million In a lawsuit filed on Oakland County Circuit Court, plaintiff George Najarian asserted that defendants Michael Wesley and Michael Johnston committed breach of oral agreement and minority oppression, and was entitled to damages. Najarian was a one-third owner and co-employee of DiabloSport, Inc., a company that made automotive tuning products. He alleged that he had a hand-shake agreement with Wesley and Johnston, the other two owners, pursuant to which all three would have lifetime employment. After several years of the three owners working at the company, Najarian asserted that Wesley and Johnston ousted him and terminated his wages and benefits. Wesley and Johnston contended there was not any oral agreement for lifetime employment, and denied that their actions met the elements of shareholder oppression. It was further contended that the defendants has a right to terminate plaintiff as an employee. The matter settled for $1 million. Michigan Lawyers Weekly B19 Type of action: Breach of contract, shareholder oppression Type of injuries: Loss of wages, loss of stock value Name of case: Najarian v. Wesley, et al. Court/Case no./date: Oakland County Circuit Court; C CK; April 2, 2010 Name of judge: John J. McDonald Settlement amount: $1 million Attorneys for plaintiff: Gerard V. Mantese, Ian M. Williamson MANTESE WILLIAMSON CLASS ACTIONS Supplier management is accused of fraud Class action contends improper accounting led to company s collapse $12,262,500 In a class-action lawsuit filed in U.S. District Court for the Eastern District of Michigan, plaintiff Craig D. Epstein and approved class members sought damages from defendants Heartland Industrial Partners, L.P.; Heartland Industrial Associates, L.L.C.; David A. Stockman; J. Michael Stepp; and Bryce M. Koth, asserting loss of securities values because of fraud involving Collins & Aikman Corp. # 1 MILLER NEWMAN Plaintiffs contended that Heartland Industrial Partners overstated the value of Collins & Aikman a 24,000-employee Tier Two automotive supplier via a series of accounting schemes involving related party transactions and false documentation. As well, it was asserted, Collins & Aikman engaged in deliberate, premature or improper accounting for vendor rebates; mischaracterization of rebates on capital equipment; use of round-trip transactions that should have had no net effect; and pre-billing of receivables under a factoring arrangement to inflate the company s borrowing base and create the appearance of liquidity. Such actions, it was added, made it appear the business was operating successfully. Upon the market learning of the improper accounting and the company s true financial situation, its stock and publicly traded fixed-income securities fell precipitously. On May 17, 2005, a month after the initial complaint in this action was filed, Collins & Aikman filed for bankruptcy protection, then liquidated, and no longer exists as an operating business. The lawsuit then named Heartland Industrial Partners and Heartland Industrial Associates (private equity firms invested in the company); Stockman (Collins & Aikman s chief executive officer); and Stepp and Koth (chief financial officers). Defendants contended no fraud was committed, and further explained that other auto suppliers and similar companies in the auto industry had been suffering financial losses. The matter settled with the defendants agreeing to provide recovery of $12,262,500 to class members. Type of action: Securities fraud class action Type of injuries: Loss in value of securities because of false and misleading statements about earnings Name of case: Epstein, et al. v. Heartland Industrial Partners, L.P., et al. Court/Case no./date: U.S. District Court, Eastern District of Michigan; 2:06-CV-13555; June 10, 2010 Name of judge: Gerald E. Rosen Settlement amount: $12,262,500 Attorneys for plaintiffs: E. Powell Miller, Marc L. Newman, Thomas H. Burt Attorneys for defendants: Fred K. Herrmann, Thomas G. McNeill, Patrick M. McCarthy # 2 Landfill s acceptance of sludge creates nuisance Facility not properly equipped, created noxious odor in area $3,325 million In a class-action lawsuit filed in Wayne County Circuit Court, class members asserted that defendant Republic Services of Michigan I, LLC was negligent in allowing the emission of noxious odors and other airborne contaminants into the New Boston community that surrounds the Carleton Farms Landfill. Plaintiffs claimed that the landfill s nuisance damages Not signed up for Michigan Lawyers Weekly s alerts? arose, in part, from defendant s acceptance of municipal sludge into the landfill. Because of its moisture content, municipal sludge creates more landfill gas than is created by typical household refuse. As the landfill was not originally designed to accept such waste, the excess gasses were released into the surrounding community, causing numerous odor complaints. Plaintiff s expert Dr. Henry S. Cole of Marylandbased environmental consulting firm Henry S. Cole & Associates issued a report that indicated the nuisance odors could be abated via installation of an expanded landfill gas collection system. The defendant agreed to a $3,325,000 settlement, of which $2.5 million will be earmarked to improve the landfill gas collection system, while the $825,000 will be for monetary damages. Type of action: Class action Type of injuries: Damages arising from emission of noxious odors and other airborne contaminants into community surrounding landfill Name of case: Waldron, et al., v. Republic Services of Michigan I, LLC Court/Case no./date: Wayne County Circuit Court; NZ; Jan. 8, 2010 Name of judge: Wendy M. Baxter Settlement amount: $3,325 million ($825,000 monetary damages, $2.5 million for capital improvements) Most helpful expert: LIDDLE Dr. Henry S. Cole, Upper Marlboro, Md. Attorney for plaintiff: Steven D. Liddle H97449 Here s what you missed today: Late-breaking legal news Today s top opinions Today s poll question The top job of the day Sign up today! Start receiving your FREE Lawyers Weekly alerts so you don t miss tomorrow s important legal news. Visit our Web site,

20 20 Michigan Lawyers Weekly January 10, 2011 Cite 25 Mich.L.W. 244 Top 10 national verdicts list rises modestly The size of the top 10 national jury verdicts increased again in The average increased less than the prior year, however, rising from nearly $145 million to just under $157 million. (The average for 2009 increased nearly $33 million from the prior year.) The top award was significantly higher in 2010 $505 million versus $370 million. But there then was a sharp drop: the No. 2 award was $209 million, and No. 3 award was $152 million. In contrast, 2009 saw three awards in the $300 million range. Chanin v. Teva Pharmaceuticals, Nevada, $505.1 million Arguing that oversized vials of a drug were weapons of mass infection that led to an outbreak of Hepatitis C at outpatient surgical centers, Las Vegas plaintiffs attorney Robert Eglet convinced a jury that the manufacturer and its distributor should be punished with $500 million in punitive damages. The verdict was the opening salvo for more than 100 pending cases against Teva Pharmaceuticals, the manufacturer of the anesthesia propofol, and distributor Baxter Healthcare. The plaintiff s case hinged on the theory that the defendants knew that the large vials created a risk that doctors would reuse them in shorter surgeries requiring smaller doses, thus spreading infections between patients. The source of the lawsuit was an outbreak of Hepatitis C at several colonoscopy clinics in Las Vegas. Two subsequent outbreaks in Miami and Washington, D.C., also occurred, according to Eglet. Baxter spokeswoman Kellie Hotz said that the company will argue on appeal that the jury should have heard about unsafe practices among medical professionals who reuse syringes and vials. Type of case: Product liability Status: On appeal. Evans v. AW Chesterton, California, $208.8 million A Los Angeles jury awarded $8.8 million in compensatory damages and $200 million in punitive damages to Rhoda Evans for esothelioma caused by asbestos contamination that her husband, Bobby, brought home from his job via his clothes. The award was split 70/30 between the pipe maker, CertainTeed, and Bobby s employer, Los Angeles water and power department, but held CertainTeed alone responsible for punitive damages. William Levin, the winning attorney, said the most inflammatory piece of evidence was a file kept by the director of safety that showed CertainTeed had known since the mid-1960s, before Bobby Evans worked with their pipes, that they contained asbestos; that asbestos caused mesothelioma even in small amounts; and that wives had developed cancer from exposure to take-home asbestos on their husbands clothes. Type of case: Product liability Status: On appeal. Evans v. Lorillard, Massachusetts, $152 million In a landmark victory, a Massachusetts jury awarded $152 million to the son of a deceased woman who received free cigarettes as a child from representatives of tobacco company Lorillard. The verdict, which includes $81 million in punitive damages, was the largest verdict in the state in 2010, and the first ever victory for an individual plaintiff over Lorillard, the third-largest cigarette manufacturer in the U.S. The facts of this case are shocking, asserted plaintiff s attorney Michael D. Weisman. Weisman represented Willie Evans, the son of Marie Evans, who died of lung cancer in Mark Gottlieb, director of the Tobacco Products Liability Project at Northeastern University School of Law, said this verdict is currently the largest in an individual smoking and health case, because larger verdicts in California and Florida were later reduced. He suggested that that more cases involving children and free samples will almost certainly be filed as a result. Type of case: Wrongful death Status: No change. Top 10 criteria Estate of Cole v. Ford Motor Co., Mississippi, $132.5 million The third time was a charm for small-firm lawyers who won $132.5 million against Ford for a rollover accident that killed 22-year-old New York Mets prospect Brian Cole. In the nine years since the accident, the case has been tried three times, with the first two trials ending in mistrials due to juror misconduct and a hung jury. Tab Turner, lead counsel for the plaintiffs, said that the first trial which he did not try was based on a legal theory claiming a defective suspension part. When he was brought in to retry the case in 2004, he switched the theory of the case to allege that the 2001 Explorer driven by Cole was defective because it rolled over too easily when he swerved to avoid another car. The top 10 national jury verdicts must be to an individual plaintiff, defined as a single person, family or small group of individuals injured in a single incident who had their claims tried in one case before the same jury. Cases must have been defended; default verdicts and suits against incarcerated individuals are not included. Business-against-business suits, class actions or consolidated cases are not included. Ford s claim that Cole was speeding was contradicted by the company s own accident reconstruction expert; similarly, the company s claim that Cole wasn t wearing a seatbelt was belied by the fact that the seatbelt remained buckled after Cole was ejected from the SUV. Type of case: Design defect Status: Settled for an undisclosed amount before the punitive phase. Pacheco v. Chavira, Texas, $124.5 million A Texas jury found a bus company and its driver liable for $124.5 million all in actual damages to seven passengers injured or killed while riding in a van in a state where it was not licensed to operate. Much of the four-day trial focused on whether the driver, who the passengers testified was eating and speeding on snowy roads, was an employee or agent of the bus company. The passengers were all Mexican citizens, some visiting family in the U.S., others returning to their jobs or families after vacationing South of the Border. They were headed to Nebraska, and all were in the U.S. legally. Two threshold legal battles were establishing whether the van was a motor carrier under federal regulations and whether the driver was an employee or agent of Los Paisanos, the bus company. Los Paisanos was not licensed to operate in Nebraska, and according to the plaintiffs, the defense presented a complicated story of how the van came to be transporting passengers into that state. Type of case: Negligence Status: Motion for new trial planned. Evans v. Baker & McKenzie, Mississippi, $103 million A Mississippi jury hit the world s largest law firm with a $103 million verdict in a suit alleging legal malpractice, breach of fiduciary duties, conspiracy and interfering with business relationships. A Texas businessman won a suit against Baker & McKenzie and senior counsel in its Dallas office, claiming that while representing him in several oil drilling deals from , they actually worked with his business partner behind his back, treating his company like a personal piggy bank, forcing litigation aimed at bringing him to his knees and ultimately driving his business into the ground. Baker & McKenzie argued at trial that the firm only represented the plaintiff on a limited matter, but according to Laurence E. Best, who represented cross-plaintiffs in the suit, the evidence of a long-term relationship was overwhelming. Type of case: Legal malpractice Status: Post-trial motions pending; judgment stayed pending appeal. Townsend v. R.J. Reynolds, Florida, $90.8 million Specifics of this case were not available at presstime, but will be published in an upcoming edition of Michigan Lawyers Weekly. Pridgen v. Avco Corp., Pennsylvania, $89 million A Pennsylvania jury handed down an $89 million verdict against the manufacturer of an airplane carburetor after a crash killed four people and severely injured a fifth. The verdict in favor of the plaintiffs includes a $64 million punitive award after the jury found the defendant s conduct was malicious, wanton, willful or oppressive. The plaintiffs alleged that a subsidiary of defendant Avco Corp., Lycoming Engines, manufactured a defective carburetor by using inexpensive metal parts that caused the carburetor to flood. They further alleged that the defendant knew about the problems with its carburetors, but failed to disclose them to the Federal Aviation Administration. The defense claimed that the crash was caused by pilot error, said James Robinson, a partner in the Philadelphia office of Cozen O Connor, who represented Avco. Type of case: Design defect, negligence Status: Post-trial motions have been filed. Petrie v. Hanover Compression, Texas, $82.5 million A Texas jury handed down an $82.5 million verdict against two natural gas plant companies after a worker in a rebuilt and refurbished plant was killed in an explosion. Joshua Wade Petrie, a plant operator at a natural gas processing plant in Cleburne, Texas, Petrie attempted to start a hot oil heater on a plant processor. After several attempts by Petrie, the heater exploded. Petrie suffered trauma to his head and chest, and died of his injuries in a hospital the next day. His widow, children and father brought a negligence action against Quicksilver Resources, the owner of the gas plant, and Hanover Compression, which sold the gas processing plant to Quicksilver. The complaint asserted that Hanover, which owned the plant when it was located in Oklahoma, had the responsibility of relocating the plant to Texas, refurbishing and restoring the plant and its equipment, then reconstructing the plant and reinstalling the equipment at the Texas site in accordance with specific safety standards and plan specifications. Type of case: Negligence Status: Settled. Webb v. R.J. Reynolds, Florida, $80 million After eight straight defense verdicts in the individual tobacco litigation in Florida, the daughter of a smoker who died of lung cancer won a resounding $80 million verdict, including $72 million in punitive damages. Dianne Webb brought suit against R.J. Reynolds Tobacco Co. as one of the Engle progeny cases, which involve individual trials to determine if a plaintiff in this case, her decedent father, James Horner was addicted to cigarettes and whether that addiction caused his or her injury. Plaintiff s attorney James W. Gustafson said Horner s early start at smoking contributed to the jury s high apportionment of fault to the defendant. Unlike some of the other Engle cases with younger plaintiffs who started smoking later, in the 1950s, Gustafson said Horner began smoking when tobacco companies still openly marketed to children and no one yet questioned the dangers of smoking. Type of case: Wrongful death Status: Defendants appealing amount of compensatory and punitive damages, as well as numerous legal issues from trial. This report was compiled by Lawyers USA, which, like Michigan Lawyers Weekly, is a Dolan Company newspaper.