1 2011 Million-Dollar Verdicts & Settlements MICHIGAN LAWYERS WEEKLY LARGEST VERDICTS Ponzi schemes targeting Arab-Americans, claims of brain damage and cerebral palsy from childbirth among top verdicts. page B2 LARGEST SETTLEMENTS Birth-trauma/medicalmalpractice, negligence in truck-hauling accident, seaman s fractured wrists on this year s list. page B10 CLASS ACTIONS Exotic dancers say they were misclassified as independent contractors instead of employees. page B23 ABOUT THIS SECTION This section includes verdicts and settlements of $1 million or more obtained in a Michigan court in 2011 that were reported to Michigan Lawyers Weekly and verified on or before Dec. 22, 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 you have any questions, please contact Douglas J. Levy at (248) or Verdicts value surges to 85%, settlements dip 14% By Douglas J. Levy The values of submitted verdicts and settlements in the 2011 edition of Michigan Lawyers Weekly s Million-Dollar Verdicts & Settlements did a noticeable flip-flop from the prior year. There was only a 3 percent increase in the number of million dollar-plus reports submitted and/or reported upon in , compared to 2010 s 65 and there was a sole class-action suit, compared to two in But the 26 verdict awards in 2011 totaled more than $376 million a difference of 85 percent over the nearly $56 million among 2010 s 18 verdicts. It should be noted that the two top verdicts $172.2 million and $144 million were in the nine-figure range, while 2010 s verdicts had no awards breaking seven figures. However, had 2011 s top two verdicts not been included, the 2010 and 2011 figures would have been similar, save for a $4 million difference. The monetary total of the 40 settlements for 2011 was $108 million, which is a 14 percent decrease from the $125 million-plus figure posted from 2010 s 45 reports. The No. 1 verdict was a $172.2 million default judgment granted to approximately 200 plaintiffs, who claimed RICO, fraud and breach of contract following two interconnected Ponzi schemes targeting Arab-Americans. That award was trebled from the aggregate amount of $57.4 million, per Judge David M. Lawson of the U.S. District Court for the Eastern District of Michigan. In second place was a $144 million jury award in a medical-malpractice/birth-injury lawsuit, where the 15-year-old plaintiff sought damages from brain damage and cerebral palsy that counsel asserted was the result of a traumatic delivery. And in the No. 3 spot was a $12.5 million jury verdict in a civil case, where the conservator of plaintiff s minor asserted that an ambulance company was responsible for negligent supervision, negligent training and failure to protect patient following a sexual assault. Three of the four top settlements all of which were in the $6 million range were birth-trauma/medical-malpractice causes of action, while the fourth was a negligence claim for injuries sustained in a truck-hauling accident. In the only class-action suit for 2011, a class of exotic dancers claimed to be misclassified as independent contractors instead of employees, thus violating the Fair Labor Standards Act. The $11.3 million settlement was an 8 percent decrease from the top classaction suit of 2010, which was $12.3 million. The top national verdicts of 2011 as compiled by Lawyers USA will be reported in an upcoming edition. Lawyers USA, like Michigan Lawyers Weekly, is a Dolan Company newspaper. If you would like to comment on this story, please contact Douglas J. Levy at (248) or
2 B2 Michigan Lawyers Weekly January 9, 2012 Cite 26 Mich.L.W. 234 LARGEST VERDICTS #1 Investors seek damages after Arab-American Ponzi scheme collapses Default judgment granted for 200-plus plaintiffs as defendant refuses to appear in federal court $172.2 million In a RICO, fraud and breach-ofcontract lawsuit filed in U.S. District Court for the Eastern District of Michigan, a collective of approximately 200 similarly situated plaintiffs sought compensatory damages to be trebled under RICO from defendants Ahmed Alabadi and Abdzhra Shalushi, among others, asserting financial loss stemming from two interconnected Ponzi schemes targeting Arab-Americans. Plaintiffs asserted that Alabadi, considered the top mastermind and wealthiest of the Ponzi schemers, and Shalushi operated the schemes via alleged shell companies, Fatima International, Adam Trade Group and Fedek Group. Shalushi ran a scheme from , and Alabadi s ran from It was argued HONIGMAN MANTESE that defendants recruited other individuals, called agents, to fraudulently obtain investments from the victims, almost all of whom were Arab-American. According to the complaint, plaintiffs contended that defendants exploited cultural taboos forbidding dishonesty and financial self-dealing with tribal brothers and sisters to dupe thousands of Iraqi-Americans into investing in Iraqi and Middle-Eastern projects. The lawsuit also alleged that the investments were fraudulent and that the defendants used the money to pay themselves or earlier investors. Plaintiffs engaged in substantial discovery, including multiple depositions revealing defendants fraudulent scheme. Many defendants did not provide discovery, but plaintiffs demonstrated the criminal enterprise and damages in the tens of millions of dollars through a detailed process of depositions, victim affidavits, translated receipts and interviews. Defendant Alabadi contended his refusal to appear stemmed from threats made on his life, despite counsel offering to have his deposition taken at the federal courthouse, where he would be under the protection of U.S. marshals. As a result, plaintiffs moved for default judgment, asserting that Alabadi s conduct was sufficient to warrant a default judgment without any lesser sanction. Default judgment was granted against defendants, jointly and severally, in the aggregate amount of $57.4 million, and treble damages under RICO were granted, making the total judgment $172.2 million. Types of actions: RICO, fraud, breach of contract Type of injuries: Lost investment Name of case: Abass, et al. v. Shalushi, et al. Court/Case no./date: U.S. District Court, Eastern District of Michigan; 10-CV-11837; Nov. 10, 2011 Tried before: Judge Name of judge: David M. Lawson Judgment amount: $172.2 million Most helpful expert: Jesse A. Ultz, forensic accountant, Southfield Attorneys for plaintiff: David M. Honigman, Gerard Mantese, David Hansma Attorney for defendants: Ronald A. Ferrebee Status: Defendant Alabadi has filed a motion to set aside judgment; hearing set for March #2 Cause of 15-year-old s disability is disputed Cerebral palsy due to defendants, not genetic disorder, plaintiff claims $144 million In a medical-malpractice lawsuit filed in Oakland County Circuit Court, plaintiff Markell VanSlembrouck sought compensatory damages from defendants Dr. Andrew Jay Halperin and William Beaumont Hospital for injuries sustained during birth. Markell, now 15, was born after more than 16 hours of labor and two FIEGER hours of pushing during the final stage of labor. She was a large baby at 10 pounds, 12 ounces, and the hospital administered Pitocin to her mother, despite indications that the baby would be large which could indicate C-section delivery. The mother had devloped gestational diabetes, which, plaintiff asserted, is known to be associated with large babies, and had gained 70 pounds during her pregnancy. The labor was traumatic, and baby was born with significant bruising, a broken clavicle and brain hemorrhaging, and she wasn t breathing. She spent three weeks in intensive care following her birth Plaintiff asserted that she is left with brain damage and cerebral palsy, making it impossible for her to ever care for herself. Defense contended that plaintiff suffers from a genetic disorder, not birth trauma. The jury found for the plaintiff and awarded her $144 million. Types of action: Medical malpractice, birth injury Type of injuries: Brain damage, cerebral palsy Name of case: VanSlembrouck v. Halperin, et al. Court/Case no./date: Oakland County Circuit Court; NH; Oct. 18, 2011 Name of judge: Rudy J. Nichols Verdict amount: $144 million Attorneys for plaintiff: Geoffrey N. Fieger, Jack Beam, Douglas J. Raymond (Beam & Raymond Associates, Lafayette, Colo.) Attorneys for defendant: Joseph F. Babiarz Jr., D. Jennifer Andreou Status: Appeal filed. #3 Ambulance company says it wasn t liable for sexual assault of minor Plaintiff: Safety was compromised, follow-up investigation substandard $12.5 million In a lawsuit filed in Wayne County Circuit Court, plaintiff John Doe, conservator of plaintiff s minor Jane Doe, sought compensatory damages from defendants Superior Ambulance Service, Inc., Matt DeFillippo and Tim O Connell on claims of negligent supervision, negligent training and failure to protect patient following sexual assault of a minor. FIEGER Around 2 a.m. July 25, 2006, plaintiff s minor, who had psychological and behavioral problems, was being transferred via a Superior ambulance from Henry Ford Hospital in Brownstown Township to Harbor Oaks Hospital, a children s psychiatric facility in New Baltimore, after cutting herself numerous times. As O Connell drove the vehicle, DeFillippo, the ambulance attendant, turned the light off and sexually assaulted, fondled and kissed plaintiff s minor. As the incident occurred, O Connell sent text messages to a co-worker and his supervisor, advising them of DeFillippo s actions. The day after the incident, Superior began its investi- 5th 4th 3rd 2nd Value of the top 5 verdicts in Michigan st $0M $25M $50M $75M $100M $125M $150M $175M $200M $225M $250M $275M $300M
3 Cite 26 Mich.L.W. 235 January 9, 2012 Michigan Lawyers Weekly B3 gation, and took O Connell and DeFillippo to the police. Though DeFillippo denied any wrongdoing, he finally confessed three weeks later, and was convicted for thirdand fourth-degree criminal sexual conduct. Plaintiff asserted that defendant Superior breached patient s safety and care in its handling of the incident, when it knew or should have known that plaintiff s minor was being assaulted, and failing to protect her. It was further contended that defendant Superior s in - vestigation into the incident was substandard, and that plaintiff s minor, according to a defense consultant, had diagnosed her with post-traumatic stress disorder, thus establishing enduring psychological damage. Defendant Superior contended it handled the matter appropriately with state police; made sure defendant DeFillippo would not be an EMT after the incident; and that there wasn t any way of knowing DeFillippo had a propensity to do what he did. Further, it was asserted, that because plaintiff s minor later graduated high school and wasn t going into treatment anymore, she isn t entitled to future damages. The jury found DeFillippo 70 percent responsible, Superior 30 percent responsible, and O Connell free of fault, and awarded plaintiff $12.5 million. Types of actions: Negligent supervision, negligent training, failure to protect patient Type of injuries: Sexual assault Name of case: Jane Doe v. Superior Ambulance Service, Inc., et al. Court/Case no./date: Wayne County Circuit Court; NO; May 11, 2011 Name of judge: Michael F. Sapala Verdict amount: $12.5 million Allocation of fault: 70 percent defendant Matt DeFillippo, 30 percent Superior Ambulance Service Most helpful experts: Chris Wagner, nurse/emt/paramedic, Ann Arbor; Dr. Gerald Shiener, forensic psychiatrist, Birmingham; Dr. Barbara Schiff, psychologist, Birmingham; Dr. Robert Ancell, vocational rehabilitation, Southfield; Dr. Michael Thomson, economist, Bloomfield Hills Attorneys for plaintiff: Geoffrey N. Fieger, William J. McHenry Attorneys for defendant: Thomas S. Cardelli, Jeffrey H. Lipe, Summer Heil Status: Will be appealed. #4 Exposure to hazardous waste causes critical pulmonary injuries Defendant: Waste was processed properly, landfill should take blame $4.7 million In a lawsuit filed in Wayne County Circuit Court, plaintiff Jason Matteucci sought compensatory damages from defendant EQ The Environmental Quality Company on claims of pulmonary function injuries as a result of toxic exposure. On April 18, 2008, at the Waste Management Woodland Meadows landfill in Wayne, two Waste Management employees, including Jason Matteucci, were pushing toxic and hazardous loads dumped by EQ. EQ is a generator of hazardous waste as defined under the Resource Conversation and Recovery Act. It accepts hazardous waste and is required by law to make the waste non-hazardous before it can be disposed at a Type II landfill such as Woodland Meadows. The load in HILBORN RIDDLE question was a new waste stream that EQ accepted from a company named Air Products. It was the one and only time that EQ accepted that particular waste stream. The employees were overcome by the fumes and were rushed to the hospital. Plaintiff was diagnosed reactive airways disease, interstitial lung disease, obstructive airways disease, and at least one pulmonary nodule. Plaintiff asserted that the waste was improperly neutralized, causing it to be reactive and exhibit hazardous waste characteristics when dumped at the landfill. Testimony presented at trial demonstrated that defendant did not share its expert report with the Michigan Department of Environmental Quality, and plaintiff contended that this directly conflicted with the positions taken by EQ with the plaintiff. Evidence showed that plaintiff was exposed to ammonia gas vapors in the range of 700 parts per million to 2,000 parts per million, well in excess of the 300 parts per million that is immediately dangerous to one s health. Plaintiff s expert Dr. Ernest Chiodo testified that plaintiff should be pulmonary disabled, while occupational and environmental medicine expert Dr. Michael Harbut testified that plaintiff should no longer work in a landfill because of his pulmonary condition caused by the exposure. Defendant contended that it was not negligent in the processing of the waste; that the waste was commingled with other waste by non-party Waste Management; that the subject waste did not cause the exposure that resulted in EMS and subsequent diagnoses; and that plaintiff sustained no damages as he returned to work. In addition, defendant sought an allocation of fault to non-party employer Waste Management. The jury found for the plaintiff, allocating 100 percent fault to EQ and awarding $4.7 million (to be reduced to present value). Type of action: Negligence, toxic tort Type of injuries: Pulmonary function Name of case: Jason Matteucci v. EQ The Environmental Quality Company Court/Case no./date: Wayne County Circuit Court; NO; Sept. 15, 2011 Name of judge: Amy P. Hathaway Demand: $750,000 Highest offer: $50,000 Verdict amount: $4.7 million Mediation award: $750,000 Special damages: Future wage loss and medical expenses, fringe benefits, replacement services Allocation of fault: 100 percent EQ, zero percent non-party Waste Management Most helpful experts: Dr. Michael Harbut, occupational and environmental medicine, Royal Oak; Dr. Ernest Chiodo, occupational and environmental medicine, Clinton Township; Gary Brugger, civil and environmental engineering, Seattle; David Dalhstrom, certified industrial hygienist, Seattle; Robert Ancell, vocational counselor, Southfield Insurance carrier: Chartis Attorneys for plaintiff: Craig E. Hilborn, Kevin C. Riddle Attorney for defendant: Deborah A. Lujan Keys to winning: Eyewitness and expert testimony that was not credibily controverted regarding the offending material that caused plaintiff s injury; treating physician s diagnosis and testimony of permanent pulmonary injuries Status: Appeal expected. #5 Building-demolition deal for scrap debated When no work is done, each side says the other breached contract $3,464,767 In a lawsuit filed in Oakland County Circuit Court, plaintiff Grand Sky Enterprise Co., Ltd. sought monetary damages from defendants Future Financial Investments, LLC and Romel Casab on claims of breach of contract and fraud. Grand Sky is a foreign corporation that engages internationally in WEINER commodities trading, including scrap metal, plastics and electrical components. In 2008, the group entered into two separate contracts with Michigan-based Future Financial Investments, controlled and operated by defendant Romel Casab. Each of the contracts concerned scrap steel resulting from the demolition of industrial buildings situated on two separate properties. The defendants claimed ownership and BALIAN control of the properties, and agreed by the contracts to the shortterm demolition of the buildings and the sale of the resultant scrap metal. Grand Sky prepaid $1.4 million to the defendants, but the demolition did not take place. Plaintiffs asserted that defendants continued to promise that it would be done, but it did not, and the prepaid funds were not returned. Defendants denied any liability, and claimed that plaintiff had breached the respective contracts. Discovery in the forms of interrogatories, depositions and document production was pursued by both plaintiff and defendants. Following close of discovery, plaintiff filed its motion for summary disposition as to liability. Following briefing and oral argument, the court granted the plaintiff s motion, and set the matter for evidentiary hearing/trial on the question of damages. In its written opinion and order, the court granted judgment in favor of plaintiff in the amount of $3,464,676, plus interest from the date of filing. The components of the adjudged amount $3,464,767 included return of invested capital, statutory interest on the invested capital, lost profit, out-of-pocket expenses incurred, exemplary damages, and attorney fees. Types of actions: Breach of contract, fraud (silent fraud, bad faith promise, negligent and innocent misrepresentation) Type of injuries: Monetary damages Name of case: Grand Sky Enterprise Co., Ltd. v. Future Financial Investments, LLC, et al. Court/Case no./date: Oakland County Circuit Court; CK; Nov. 21, 2011 Tried before: Judge Name of judge: Leo Bowman Verdict amount: $3,464,767 Special damages: Interest from date of filing Attorneys for plaintiff: J. Laevin Weiner, Melinda A. Balian Attorney for defendant: Barry A. Steinway Status: Final judgment signed and entered Dec. 7, The appeal period has not yet run, and there has been no settlement. #6 Negligence disputed in truck/motorcycle crash Plaintiff says he had right of way in right lane as tractor-trailer went left $3.42 million In a lawsuit filed in U.S. District Court for the Eastern District of Michigan, Southern Division, plaintiff Kevin W. Kelley sought compensatory damages from defendants Gary L. Waite, Steel Transport, Inc., and William L. Cooper Sr. for injuries sustained in a motorcycletruck accident. On April 17, 2009, Kelley was riding his motorcycle and stopped at a traffic light behind a tractor-trailer being driven by Waite. The truck, which was leased by Cooper, its owner, to Steel Transport, was being driven to a business, where Waite was to look at a new trailer. When the light turned green, the truck and motorcycle turned left. As Kelley observed the truck heading for the left lane, he began passing it PALMER LOECKNER in the right lane. The truck then turned in front of Kelley into a driveway on the right, hitting him. Kelley suffered a fractured pelvis and multiple fractures in the left lower extremity, in addition to a right shoulder dislocation. Defendants asserted that Waite had activated his turn signal in order to alert his passing into the lane; that plaintiff tried to thread the needle by squeezing in between traffic; and that plaintiff was negligent because he did not have a motorcycle endorsement on his driver s license. Plaintiff contended he reasonably believed the truck was heading into the left lane from the right when plaintiff started to pass the truck, and therefore had the right of way in the right lane. The jury rendered a total verdict of $3.42 million broken down as $1.5 million for past non-economic damages, $870,000 for excessive wage loss after three years, and $1.05 million for future non-economic damages but found plaintiff 20 percent comparatively negligent. After the comparatively negligent reduction, in addition to reduction of excess wage loss by deducting from Social Security disability payments; reduction of future damages to present value pursuant to MCL ; and pre-judgment interest and taxable costs, present value of judgment was $1,956,800. Type of action: Third-party motor-vehicle negligence Continued on page B4
4 B4 Michigan Lawyers Weekly January 9, 2012 Cite 26 Mich.L.W. 236 LARGEST VERDICTS Continued from page 3 Types of injuries: Fractured pelvis, multiple fractures in left lower extremity, right shoulder dislocation, excess wage loss after three years Name of case: Kelley v. Steel Transport, et al. Court/Case no./date: U.S. District Court, Eastern District of Michigan; ; May 18, 2011 Name of judge: Mark A. Goldsmith Demand: $2 million Highest offer: $500,000 Verdict amount: $3.42 million, present value $1,956,800 Allocation of fault: 80 percent defendant, 20 percent plaintiff Most helpful experts: Dr. Alfred Faulkner, orthopedic surgery, Dearborn; James Pouliot, liability expert, Wyandotte; Robert Ancell, vocational rehabilitation, Southfield Insurance carrier: RLI Attorneys for plaintiff: Charles W. Palmer, Michael F. Loeckner Attorneys for defendant: Michael J. Hutchinson, Tara S. Cannatella Status: Judgment satisfied. #7 Multi-plaintiff lawsuit asserts discrimination 33 people say they were excluded from consideration in new division $2,621,424 In a multi-plaintiff, consolidated lawsuit filed in Genesee County Circuit Court and U.S. District Court for the Eastern District of Michigan, plaintiff David Porter and 32 similarly situated plaintiffs sought compensatory damages from defendants City of Flint and Donald J. Williamson on claims of emotional distress stemming from the exclusion of the city s LENHOFF Citizens Service Bureau. In 2006, pressure was exerted on Williamson, Flint s mayor, from elements of the city s African-American community with the objective of increasing the number of African-American command officers in the city s police department. Williamson met with prominent people in that community, and in December 2006, Williamson created an elite unit in the police department called the Citizens Service Bureau (CSB). It was asserted that Williamson single-handedly created the CSB without any posting, testing or other regular procedure, but rather simply decreed there would be a CSB and then staffed the CSB with four African-American officers and one white female officer. It was further contended that entrance into the CSB was largely closed to white officers. At a news conference held shortly after the CSB s formation, Williamson made an inculpatory statement regarding the exclusive racial orientation of the CSB. A Flint Journal newspaper reporter, with no interest in the outcome of this case, testified concerning Williamson s inculpatory statement, but at the arbitration trial, Williamson denied making the inculpatory statement. In addition, at arbitration, Williamson denied that race was considered in the CSB appointments. Plaintiffs asserted that the CSB was racially oriented and exclusive, and that mental anguish was suffered when they were excluded from consideration. It also was contended that the plaintiffs belief that advancement should be by dint of good conduct, diligent study, bravery and hard work caused deep emotional harm. Plaintiffs counsel noted the key to bringing the case to arbitration was an August 2009 jury trial award of $131,000 in Keith Speer v. City of Flint, a CSB case that proceeded as a single-plaintiff case in Genesee County Circuit Court before Judge Judith Fullerton ( CD). Ten minutes after deliberations began, the Speer jury sent out damages questions. After the jury returned its award, the defendants agreed to an arbitration of the other CSB cases that were then pending. The arbitration panel unanimously found that race was a factor in the creation, orientation and staffing of the CSB, and awarded plaintiffs a total of $2,621,424 in damages. Type of action: Racial discrimination Type of injuries: Emotional distress Name of case: Porter, et al. v City of Flint, et al. Court/Case no./date: Consolidated case with 48 plaintiffs in Genesee County Circuit Court ( CL) and U.S. District Court, Eastern District of Michigan ( ; ); arbitration award issued July 6, 2011, confirmed in federal court Dec. 8, 2011 Tried before: Arbitration Names of arbitrators: Barry L. Howard, Thomas W. Cranmer, David A. Kotzian Demand: $3 million Highest offer: $550,000 Arbitration award: $2,621,424 Special damages: Attorney fees and costs Attorneys for plaintiff: Glen N. Lenhoff, Michael E. Freifeld, Gregory T. Gibbs, Dean T. Yeotis Attorneys for defendant: H. William Reising, Frederic E. Champnella II, Joseph R. Furton Jr., Donald J. Williamson Status: Award confirmed. An appeal of the confirmation order is possible, but not likely; after the appeal time runs on the confirmation order, plaintiffs counsel will move for entry of judgment. #8 (tie) Woman suffers rectum, colon injuries in surgery Plaintiff asserts OB/GYN, resident mishandled fetal remain-removal $2.5 million In a medical-malpractice lawsuit filed in Washtenaw County Circuit Court, plaintiff Amy Garcia sought compensatory damages from Dr. Norman Gove, Ann Arbor OB/GYN Associates, P.C., and Integrated Health Associates, Inc., for injuries sustained during a dilation-and-evacuation procedure. Garcia had a fetal demise during MEKLIR her early second trimester of pregnancy, and Gove was going to remove the fetal remains via a dilation-andevacuation procedure. A laminaria was inserted in an attempt to dilate the cervix, but it was discovered upon examination under anesthesia that the laminaria failed. It was asserted that Gove brought in an inexperienced resident to assist with the procedure. The resident testified that she attempted to dilate the cervix using dilators, but gave up when she ran into resistance. After the resident s attempts, and without checking to determine if Garcia s cervix had been dilated, using ring forceps, Gove attempted to remove the remains. It was alleged that, without using guidance, he went back in grabbed the rectum and ripped the top half of the rectum and a portion of the bowel out. As a result, a temporary emergency ileostomy, to repair the colon and rectum, was necessary, and an ileos tomy pouch was put in place. Plaintiff asserted that she now has permanent changes to her bowel habits as well as significant scarring, and suffers from cluster bowel movements, which render her unavailable for full-time employment. It also was contended that Gove was negligent. Defendant Gove contended that the resident had done the entire dilation, and testified that he did not utilize ultrasound, a uterine sound, or his fingers to verify the resident s position. Judge Archie C. Brown found for the plaintiff and awarded $2.5 million. Types of injuries: Injury to plaintiff s rectum and colon Name of case: Garcia v. Gove, et al. Court/Case no./date: Washtenaw County Circuit Court; NH; Nov. 22, 2011 Tried before: Judge Name of judge: Archie C. Brown Demand: $450,000 Verdict amount: $2.5 million Case evaluation: $260,000 Most helpful experts: Dr. Ronald G. Zack, OB/GYN, Livonia; Dr. Jeffrey Soffer, OB/GYN, Westfield, N.J. Attorney for plaintiff: Samuel A. Meklir Attorney for defendant: Wilson A. Copeland II Key to winning: Allowing the jury to understand the anatomy, the alternate methods of performing the procedure, and the logic behind the approach Status: Judgment had yet to be entered at presstime. #8 (tie) Complex heart surgery goes wrong, results in patient s brain damage Plaintiff says doctor went in wrong order, resulting in hemorrhaging $2.5 million In a lawsuit filed in Washtenaw County Circuit Court, and consolidated with a lawsuit filed in State of Michigan Court of Claims, plaintiff Angela Smith, next friend to plaintiff Alexander Miller, sought compensatory damages from defendants Dr. Eric Devaney; University of Michigan Board of Regents; University of Michigan Health Center; and the University of Michigan Hospital, on claims of severe brain- and heart-related damage arising from cardiac surgery that had to be aborted intra-operatively. The intended operation on Miller, by Devaney, was a complex heart surgery designed to revise a prior heart surgery performed some 17 years before to treat a congenital heart defect. At the outset of surgery after GOETHEL ENGELHARDT opening Miller s chest, there was a tear of the right atrium with resulting hemorrhage and a need to resuscitate the patient with blood transfusions. Thereafter, as Devaney then attempted to mobilize the chest, he tore Miller s aorta, resulting in even more hemorrhage and a surgical crisis. Additional surgeons were summoned emergently to assist, and more resuscitation was required. Until this time, and contrary to the standard of care, no efforts had been undertaken to have the patient prepared to go on emergency bypass. Plaintiff s proofs demonstrated that, as Devaney attempted to gain vascular access, he went in the wrong order, beginning with venous access. Compounding his errors, it was further contended, Devaney wasted precious time discovering the femoral veins were occluded, facts that were well established in the UMHS records and well-known to other UMHS physicians. By the time bypass was finally established, Miller resuscitated, the hemorrhaging stopped and the damage repaired, Devaney and his colleagues had to abort the entire operation. Within minutes of leaving the operating room, Miller then suffered cardiac arrest requiring the emergent re-entry of his chest to restart his heart (open cardiac massage). In the aftermath, Miller wound up in a coma, with anoxic brain damage and other extensive injuries. Moreover, nothing had been done to correct the underlying heart conditions; he was not amenable to further surgery; and that plaintiff s only viable option was heart transplant. Plaintiff further claimed his brain damages resulted in hemiparesis, a foot drop, and an aggravation of his already compromised cognitive function such that he would never be able to live independently. In addition, evidence was presented to demonstrate that Devaney never met the patient or his parents until minutes before the surgery; that he failed to present the case at a planning conference; and did not collaborate with the cardiology and surgical team, as was the norm at heart centers around the country. It also was asserted that Devaney failed to account for Miller s multiple risk factors, and completely failed to have an appropriate plan in place to initiate emergent bypass. Defendant Devaney claimed there was no violation of the standard of care; that there was no need for a preoperative planning conference; and that he was aware of plaintiff s pre-existing femoral vein occlusion. It was further asserted that Devaney s operative report contained a dictation error, and that he had, in fact, proceeded in the correct sequence to establish emergency bypass. It also was asserted that the patient was stable during the intra-operative bleeding events and that he was able to get the patient safely on bypass. In addition, defendant contended that plaintiff s life expectancy was highly limited, and would be the same regardless of his receiving a heart transplant. The jury found for the plaintiff and awarded $2.5 million. Type of injuries: Brain damages resulting in hemiparesis, foot drop and aggravation of already compromised cognitive function Name of case: Smith, et al. v. Devaney, et al. Court/Case no./date: Washtenaw County Circuit Court,
5 Cite 26 Mich.L.W. 237 January 9, 2012 Michigan Lawyers Weekly B5 State of Michigan Court of Claims; NH (Washtenaw), MH (Court of Claims); Sept. 30, 2011 Names of judges: Timothy P. Connors (Washtenaw); Joyce Draganchuk (Court of Claims) Verdict amount: $2.5 million Most helpful experts: Dr. Bradley Sewick, neuropsychologist, Southfield; Dr. Owen Perlman, physical medicine and rehabilitation, Ann Arbor; Dr. David Clarke, pediatric cardiothoracic surgeon, Denver; Nitin Paranjpe, economist, Bloomfield Hills; Marianne Boeing, life-care planning expert; George Cyphers, rehabilitation counselor, Cleveland Insurance carrier: Self-insured Attorneys for plaintiff: Stephen Goethel, Chad D. Engelhardt Attorney for defendant: Scott D. Feringa Status: Post trial motions for costs and sanctions remain pending. #9 Plaintiff claims deal led to misrepresentation of real estate investments Says representative had him under impression other clients part of it $2.375 million In a lawsuit filed in Wayne County Circuit Court, but ordered to Financial Industry Regulatory Authority, Inc. (FINRA) arbitration, plaintiff Taylor Affiliates, LLC sought monetary damages for lost principal and interest from defendant Securian Financial Services, Inc. on claims of suitability, misrepresentation, failure to supervise, and respondeat superior liability. Taylor went to Securian for an investment plan. Despite written investment objectives of preservation of principal and conservative, the Securian representative s written plan included investing most of the client s money in promissory notes in favor of real estate limited liability companies, in which the Securian representative was involved as a participant and manager. BYLSMA BRODY There were no disclaimers or information provided to show that the investments were not monitored, supervised, or backed by Securian. It was asserted that Taylor was led to believe that other Securian clients were investing in the securities. Taylor invested $4.2 million in the promissory notes, which, plaintiff contended, constituted a Private Securities Transaction. More than $2 million in interest and other sources was recovered prior to bringing the claim. Defendant asserted that the investments were not Securian products and that plaintiff was not a client of Securian because he did not purchase any Securian products. It also was contended that plaintiff did not have an account at Securian and did not deposit any money with Securian. Further, defendant argued the promissory notes were not securities, and the sale of the notes did not constitute a Private Securities Transaction. Defense also pointed out other, unrelated real estate investments made by plaintiff, and attempted to show that these investments were made by the plaintiff by his own choice and preference. Plaintiff asserted that documents revealed that defendant was aware that its representative was engaged in financing, buying, and selling real estate through limited liability companies, which is an outside business activity. It also was contended that Securian failed to require full disclosure of those activities, and failed to ensure that they were not being marketed to Securian clients; then, when they did get involved, they did curtail the activities. Finally, it was argued, had Securian done so upon first learning of the outside real estate business activities, plaintiff would never have had the opportunity to invest. The arbitration panel awarded plaintiff $2.375 million. Type of action: FINRA customer-broker/dealer claim for suitability, misrepresentation, failure to supervise, and respondeat superior liability Type of injuries: Monetary damages for lost principal of $4.2 million, interest Name of case: Taylor Affiliates, LLC v. Securian Financial Services Court/Case no./date: Originally filed in Wayne County Circuit Court, but ordered to FINRA arbitration; ; Nov. 17, 2011 Tried before: Three-member arbitration panel Names of arbitrators: Jeffry M. Bauer, Michael J. Meeusen, Dana Ray Darnell Demand: $5.8 million Highest offer: $50,000 Arbitration award: $2.375 million Attorneys for plaintiff: Jon M. Bylsma, Adam J. Brody Attorneys for defendant: Lawrence R. King, Sarah E. Madsen (Larson King, LLP, St. Paul, Minn.) Key to winning: Ability to do discovery in prior related case to show internal compliance documents reflecting knowledge of the broker/dealer of the inappropriate activities of its representative Status: There will be no appeal, and because the case was grounded on misconduct, the award can t be vacated in trial court. #10 Nursing home resident chokes on meatball, dies Plaintiff s estate: Aides negligent, did not call EMS in enough time $2.35 million In a lawsuit filed in Macomb County Circuit Court, plaintiff Estate of Walter Polomski sought compensatory damages from defendants SavaSeniorCare, LLC; SSC Warren Operating Co., LLC; and Nightingale East Nursing Center after plaintiff s decedent suffocated, developed brain damage, and died. After having a stroke, Polomski PERRIN was admitted to Nightingale East. He was unable to walk, had moderate dementia and a swallowing disorder, along with a known increased risk of choking. An aide was directed to sit with him to prevent choking, and his meals were required to be ground up. In March 2008, Polomski was mistakenly served a tray of hard, golf ball-sized meatballs intended for another resident. Four aides were required to supervise residents in the dining room, but only three were present that day. A nurse also was required by law to be present, but never showed up that day. Polomski began to cough, then choke, but it was asserted that aides there claimed to not know the Heimlich maneuver. Polomski was wheeled through the facility in search of a nurse; when one was found, attempts at the Heimlich were unsuccessful. Records showed that EMS wasn t called until Polomski had been without air for 14 minutes. EMS arrived in less than 2 minutes, and the paramedic removed the meatball with forceps. Polomski was taken to a hospital after resuscitation, but he suffered severe, near-total brain damage. He was on a ventilator for several hours until terminally weaned at family s request. Plaintiff asserted that aides neglected plaintiff s decedent for weeks; failed to feed him at times; and rarely assisted with eating. On the day in question, it was further contended, aides failed to compare his name on his wrist band with the name on the tray slip, and their negligence caused the choking. It also was contended that SSC Warren Operating Co., LLC was a shell company created by SavaSeniorCare, LLC, and that SavaSeniorCare claimed Nightingale East, a long-defunct company, employed the staff, thus shielding SavaSeniorCare from responsibility. Defense contended that plaintiff s decedent was not served a tray of food at all, but rather impulsively stole food from another resident. It also was argued that all meatballs served there were soft and tender, thus safe to eat, and that it was not necessary for aides to know the Heimlich. It also was contended that SavaSeniorCare wasn t actually a company at all, but was only a trade name, did not have any employees, and was unrelated to the nursing home in any way. When plaintiff argued that current and former employees testified that SavaSeniorCare hired, fired, recruited, trained, owned and controlled the facility, defense contended the employees were mistaken, and that one of the two other SavaSeniorCare-controlled shell companies was the real employer. The jury found for the plaintiff and awarded $2.35 million. The jury also determined that SavaSeniorCare was the owner of the nursing facility. Type of action: Nursing home negligence Types of injuries: Suffocation, brain damage, death Name of case: Estate of Walter Polomski v. SavaSeniorCare, LLC, et al. Court/Case no./date: Macomb County Circuit Court; CZ; Nov. 15, 2011 Name of judge: Edward Servitto Demand: $500,000 Highest offer: $300,000 Verdict amount: $2.35 million Case evaluation: $975,000 Most helpful expert: Leon Pedell, internal medicine, Bloomfield Hills Attorneys for plaintiff: John M. Perrin, James Simasko Attorneys for defendant: D. Jennifer Andreou, Raymond Watts Status: Appeal may be filed for reduced damages per medical-malpractice caps. #11 Use of vehicle s sirens, lights disputed in crash Plaintiff says officer s video shows emergency equipment not engaged $2,056,998 In a lawsuit filed in Wayne County Circuit Court, plaintiff Michael Beydoun sought compensatory damages from defendants city of Detroit and Charles Benjamin Wills Jr. for injuries sustained in an auto accident. Beydoun was stopped at a red light at the intersection of Telegraph and Schoolcraft roads. When GUZALL the light turned green, he proceeded westbound along Schoolcraft with an individual traveling next to him. A Detroit police vehicle driven by Wills, a police officer for the city, was going southbound on Telegraph through the intersection s red light. He struck the front passenger side of Beydoun s vehicle at Telegraph and slamming the vehicle into the vehicle next to him. Beydoun s injuries from the T-bone accident included a disc bulge at C5-C6, radiculopathy, cervical and lumbar strain, nerve damage and chronic pain, resulting in limitations of activities he could perform after the accident. He was subsequently treated by several doctors, but no surgery was performed. Beydoun owned his own company and performed very specialized tasks, which he was not able to do after the accident. Plaintiff asserted that video evidence from the officer s vehicle, along with eyewitness testimony, showed that Wills did not use the police car s siren or visible lights to alert other cars of his presence. Defendant contended that Wills, who had received an emergency radio call for police assistance, had activated his emergency equipment and proceeded at a cautious rate of speed, and that upon approaching the intersection, he slowed his vehicle and proceeded into the intersection. It also was asserted that, in anticipation of the changing light, plaintiff proceeded into the intersection and hit the officer s vehicle. After hours of deliberation, the jury found for the plaintiff and awarded $2,056,998. Type of action: Auto accident Types of injuries: Neck, back, arm and nerve damage Name of case: Beydoun v. City of Detroit, et al. Court/Case no./date: Wayne County Circuit Court; ; April 8, 2011 Name of judge: Robert J. Colombo Jr. Verdict amount: $2,056,998 Attorneys for plaintiff: Raymond Guzall III, Barry A. Seifman Attorney for defendant: Marion R. Jenkins Status: Defense plans to appeal. Continued on page B6 FAST AND EASY Report your Verdicts and Settlements at
6 B6 Michigan Lawyers Weekly January 9, 2012 Cite 26 Mich.L.W. 238 LARGEST VERDICTS Continued from page 5 #12 Distributor: Contract to not sell in restricted territory was breached Arbitration panel agrees supplier s vendor network knowingly usurped $2,010,982 In a breach-of-contract action filed with the American Arbitration Association, plaintiff Heat Controller International, LLC (International) sought monetary damages from defendant Heat Controller, Inc. (HCI) for soliciting and purchasing from restricted vendors, in addition to selling products in plaintiff s exclusive territory. MILLER Defendant filed a counterclaim and sought monetary damages for alleged breaches of the parties contract, including a claim for violating the non-competition provision as to sales of product to one of HCI s customers in the U.S. International had a global supply-and-distribution network with an emphasis on Asia for airconditioning equipment that had OLIJNYK been developed over the course of many years. In 2002, International entered into a contract with HCI to supply air-conditioning goods to HCI and to sell HCI s goods outside the U.S. and Canada. The contract also precluded International from selling HCI name-brand products in the U.S. to anyone other than HCI. The agreement also required the VIAR parties to treat the identity of their respective customers and vendors as confidential; required them to treat each other as fiduciaries as to confidential information; and prohibited both parties from soliciting, buying from and/or selling to each other s former, current or prospective customers and/or vendors during the term of the contract and for three years after its expiration (the non-solicitation clause). During the term of the contract, HCI obtained the names and contacts of International s vendors in Asia. After several years of abiding by the contract, plaintiff asserted that HCI determined it could reduce its costs by purchasing products directly from International s vendors. Accordingly, HCI attempted to negotiate a new deal with International or buy out of the non-solicitation clause, but the parties failed to reach an agreement. Despite failure to agree to rescind the non-solicitation clause, plaintiff contended HCI began to directly solicit and purchase from International s vendors, many of whom had been introduced to HCI by International. International asserted that HCI usurped it vendor network, and that HCI knowingly sold products to a distributor who intended to, and did, sell in International s territory. The arbitration panel ruled in favor of plaintiff on its primary claims for breach of the non-solicitation clause and breach of the exclusivity clause, in the amount of $2,316,982. Of its original 21 counterclaims, defendant abandoned and/or lost all but one, with the tribunal awarding defendant $306,000 related to the sales of product to one of its customers, making plaintiff s net award $2,010,982. Type of action: Breach of contract Type of injuries: Monetary Name of case: Heat Controller International, LLC v. Heat Controller, Inc. Court/Case no./date: American Arbitration Association; T ; Sept. 8, 2011 Tried before: Arbitration tribunal Names of arbitrators: Carl von Ende, Fred M. Mester, Lawrence R. Abramczyk Arbitration award: $2,316,982 on plaintiff s claim, $306,000 on defendant s counterclaim, for net plaintiff s award of $2,010,982 Attorneys for plaintiff: E. Powell Miller, Martha J. Olijnyk, David B. Viar Status: Judgment satisfied. #13 After collision, prior conditions questioned Before crash, disabilities didn t hurt his abilities in being active: plaintiff $1.98 million In a third-party truck negligence lawsuit filed in Wayne County Circuit Court, plaintiff C. Peterson sought compensatory damages from defendants Jeffrey Gaskins and Kimco Corp. for injuries sustained in an auto-truck accident. Peterson was 61 years old and on Social Security Disability Insurance for a heart condition and stroke in On April 28, 2008, in Detroit, he was rear-ended by a large truck owned by Kimco and driven by Gaskins while in the scope of his employment. Gaskins admitted being tired and falling asleep at the wheel prior to the crash. Peterson did not go to the hospital on the day of his crash. Within five days, he was seen by a chiropractor for neck and back pain, and referred to a physiatrist and for physical therapy. He had some pain injections and physical therapy as well as chiropractic care. MRIs were taken that showed some degeneration as well as herniations and bulges. Peterson was finally referred to Dr. Miguel Lis- Planells, who performed a L5-S1 posterior discectomy and fusion one and a half years following the accident. Defendants contended, through testimony from its independent examining physician, that plaintiff was able to continue working, and that the surgery was not related to the accident but rather to pre-existing conditions. Plaintiff asserted that even though he had existing disabilities up to the time of the accident, he was an active man, as he was volunteering for his church, where he would clean, mop and wax floors on a regular basis; was working with children and baby-sitting grandchildren; and played and coached basketball. It was further contended that injuries from the accident were devastating to his current life, as he was not able to do any of the aforementioned activities since the crash. The jury deliberated for 45 minutes and found for the plaintiff, awarding $1.98 million. Type of action: Third-party truck negligence Types of injuries: Neck, back Name of case: Peterson v. Gaskins, et al. Court/Case no./date: Wayne County Circuit Court; NI; April 20, 2011 Name of judge: Gershwin A. Drain Demand: $750,000 Verdict amount: $1.98 million Attorneys for plaintiff: Michael J. Morse, Christopher D. Filiatraut Attorney for defendant: David G. Sekerak Status: Case settled. #14 Contract is disputed as defendants leave MORSE FILIATRAUT Awards are given to both sides, but plaintiff s claims get reversed $1,886,395 In a lawsuit filed in Genesee County Circuit Court, plaintiff Quality Manufacturing, Inc. sought economic damages from defendants Brian D. Mann, Brian D. Mann Jr. and Quality Way Products, LLC on claims of breach of fiduciary duties, conversion, conspiracy, and tortious interference with contracts when MAINPRIZE defendants left plaintiff after 10 years of service. Defendant Mann countersued the plaintiff and plaintiff James E. Kirby for breach of a 10-year-old oral contract to transfer 50 percent of the stock in plaintiff. After a 12-day bench trial, the trial court found the defendants liable for plaintiff s loss of $11.5 million in sales, and awarded plaintiff $1.384 million for breach of fiduciary duties, tortious interference and loss of profits. Plaintiff Quality Manufacturing and Kirby also were held liable under the theory of promissory estoppel for breaching the oral contract to transfer stock. Defendant Mann was awarded $1.12 million. Judgments were netted, resulting in an award to Plaintiff including interest and case evaluation sanctions, in the amount of $396,309. The parties filed an appeal and cross-appeal. The Court of Appeals reversed the plaintiff s award, including the separate award for case evaluation sanctions, and enforced defendant s award. The Supreme Court denied leave to appeal. The trial court entered a judgment dismissing all of plaintiff s claims, and awarded $1.49 million, including interest, to defendant Mann. Plaintiff also contemporaneously sued defendant Mann in a companion case in Tuscola County Circuit Court ( CK), which similarly resulted in a trial court verdict of no cause of action in favor of defendant. Types of actions: Promissory estoppel, breach of fiduciary duties, tortious interference Types of injuries: Loss of corporate stock, loss of profits Name of case: Quality Manufacturing, Inc. v. Brian D. Mann, et al. Court/Case no./date: Genesee County Circuit Court; CZ; April 12, 2011 (judgment entered) Tried before: Judge Name of judge: Richard B. Yuille Verdict amount: $1,886,395 ($1,120,689 verdict, plus $369,397 in interest, and reversal of plaintiff s award of $396,309) Attorneys for plaintiff: Steven F. Spender, Dawn M. Weier, Kyle R. Riem (trial counsel); John P. Jacobs (appellate counsel) Attorney for defendants: P. Anthony Mainprize Key to winning: Proving the 10-year old oral contract was triggered by a future event to avoid the six year statute of limitations. Status: Judgment paid in full, with defendants case evaluation sanction motion pending. #15 Firefighter says she s not fully at fault for collision with tractor Determining whether street was two lanes, use of turn signal contended $1,884,600 In a lawsuit filed in Calhoun County Circuit Court, plaintiff Theresa J. Varner sought economic and non-economic damages from defendant City of Battle Creek for injuries sustained in a motorcycle-tractor collision. On Sept. 19, 2007, Varner was riding her motorcycle westbound on Goodale Road, a residential street that COREY had a speed limit of 30 mph. Ahead of her was a car driven by Linda Sanders, who was behind a tractor-mower driven by city employee Larry Cole. The tractor was going 10 mph. When Goodale widened from one lane to the width of two unmarked lanes, Cole moved his tractor-mower to the right, with Sanders following. Using her turn signal, Varner moved to pass the two vehicles, and accelerated mph ahead on the left lane nearest the double-yellow line, when Cole, who testified not recalling using his turn signal, made a sudden left turn into Varner s path. Varner collided with the tractor s rear yellow tank, knocking her off the motorcycle and onto the street. She sustained a back fracture and right trimalleolar ankle fracture, which forced her to cease her job as a firefighter. Though Sanders, a former adjuster with AAA, was steadfast in contending that Varner crossed the double-yellow line, at testimony she did not recall whether Cole used his turn signal in moving from the right side back to the left. Plaintiff asserted via exhibit photos that Varner couldn t have crossed the double-yellow line because Cole admitted his front wheels had slightly crossed the double-yellow line, and because Varner hit the rear tank. It also was contended that the westbound section of the road was two lanes wide at the point of the incident, and that a tractor doesn t fit within the governmental immunity statute, therefore making the city liable. Defendant asserted that plaintiff violated MCLA
7 Cite 26 Mich.L.W. 239 January 9, 2012 Michigan Lawyers Weekly B , for following Sanders more closely than is reasonable, in addition to MCLA (4) for passing in a no-passing zone marked by a double-yellow line. It also was contended that whether the tractor is considered a motor vehicle under MCL , the motor vehicle exception to governmental immunity applies. Further, it was asserted that regardless of its alternating width, Goodale was not a street intended for same-direction traffic to move side-by-side. Though a jury issued a $1,884,600 award for the plaintiff, it allocated fault at 57 percent defendant and 43 percent plaintiff. Types of actions: Vehicle negligence, exception to governmental immunity Types of injuries: Trimalleolar right leg/ankle fracture, non-displaced spine fracture Name of case: Varner v. City of Battle Creek Court/Case no./date: Calhoun County Circuit Court; NI; May 10, 2011 Name of judge: Conrad J. Sindt Case evaluation: $500,000 Highest offer: $75,000 Verdict amount: $1,884,600 Special damages: $650,000 income loss Allocation of fault: 57 percent defendant, 43 percent plaintiff Most helpful experts: Det. Donald Smith, accident reconstructionist, Portage; Dr. Robert Ancell, vocational rehabilitation, Southfield; John Burke, economist, Cleveland; Dr. William Comai, orthopedic surgeon, Battle Creek Insurance carrier: Self-insured Attorneys for plaintiff: Louis G. Corey, M. Timothy Gergely Attorney for defendant: Ian D. Wright Keys to winning: Preparation; cross-examination of independent eyewitness and defendant s accident reconstructionist Status: Judgment satisfied by defendant. #16 Not settling med-mal case leads bankruptcy Bad faith asserted after carrier was warned its insured would lose trial $1,701,723 In a lawsuit filed in Calhoun County Circuit Court, plaintiffs Thomas Tibble, trustee for the bankruptcy estate of Dr. Robert Prodinger, and Stephen Langeland, trustee for the bankruptcy estate of Battle Creek Emergency Physicians, P.C., sought compensatory damages from defendant American Physicians Capital, FORD Inc., on claims of bad faith. The case stems from an underlying medical-malpractice death lawsuit. AP Capital had $300,000 in policy limits, but refused to settle the case for $245,000 at the settlement conference. This was despite repeated warnings from defense counsel that the case would hinge on one contested fact that the defendants were almost certain to lose, and that damages of more than $1 million could result. The jury in that case returned a verdict in favor of the plaintiff for $1.3 million. This eventually drove both Prodinger, the individual physician, and Battle Creek Emergency Physicians, his professional corporation, into bankruptcy after AP Capital paid its policy limits, but refused to pay for an appeal. This led to litigation for claims of bad faith. In discovery, it was disclosed that AP Capital never offered what it had reserved for the probable payout in the case, and a memo from AP Capital s adjuster stated that AP Capital had no incentive to offer its policy limits. At trial, the adjuster testified that AP Capital could no longer afford to take more chances when it had low policy limits, and that it was not the responsibility of AP Capital to protect the physician s personal assets. The jury found for the plaintiffs and awarded $204,000 to Tibble and $1,497,723 to Langeland. With case evaluation sanctions, judgment was entered at $332,671 for Tibble and $1,920,589 for Langeland. Type of action: Bad faith Type of injuries: Economic damages Name of case: Tibble, et al. v. American Physicians Capital, Inc. Court/Case no./date: Calhoun County Circuit Court; CZ; May 31, 2011 Name of judge: James C. Kingsley Demand: $500,000 Highest offer: $250,000 Verdict amount: $1,701,723 ($204,000 Tibble, $1,497,723 Langeland) Special damages: Case evaluation sanctions Most helpful experts: Dr. Greg Henry, emergency medicine Ann Arbor; David Cooper, medical malpractice and insurance coverage attorney, Bloomfield Hills Insurance carrier: American Physicians Capital, Inc. Attorneys for plaintiffs: Martin R. Sturm (Tibble), James B. Ford (Langeland) Attorney for defendant: Mark A. Bush Status: Defendant granted post-judgment relief of $350,000, which plaintiff Langleand has appealed. Defendant has appealed the remainder of plaintiff Langleand s award. #17 29-year-old male attack victim seeks damages Extensive surgery on face includes screws, plates, prosthesis for eye $1,700,856 In a personal injury and assault lawsuit filed in Wexford County Circuit Court, plaintiff attack victim sought compensatory damages against defendant attacker for injuries sustained in a beating. The attacker served nine months in jail after being convicted of beating the victim following a long night DANCER of drinking with his friends. The victim, 29, was airlifted to a southern Michigan trauma center, where a team of surgeons reconstructed his face. His injuries required the insertion of screws, titanium plates, and a prosthetic orbital bone to support his eye. An eyewitness to the attack testified via affidavit that the attacker struck the victim in the face twice, and, while the victim was on the ground, continued to strike him in the face and head. Judgment was entered for the plaintiff for $1,700,856. A prior confidential settlement was made with two bars where defendant had been drinking prior to this assault. Types of actions: Personal injury, assault Types of injuries: Complex facial fracture requiring orbital floor implant, facial and nasal reconstruction with plating and screws Court/Case no./date: Wexford County Circuit Court; confidential; Aug. 8, 2011 Tried before: Judge Name of judge: William Fagerman Judgment amount: $1,700,856 Most helpful expert: Dr. Daniel McCoy, toxicology, Indianapolis Attorney for plaintiff: Mark R. Dancer Status: In collection mode; case won t be appealed. #18 87-year-old trapped on nursing home bus, dies Facility found to be bankrupt, its successor didn t buy out liabilities ALLABEN $1.65 million In a nursing-home negligence lawsuit filed in Kent County Circuit Court, plaintiff LaShanda Snell, personal representative of the Estate of Susanna West, sought compensatory damages from defendant Hearthstone Management, Inc. after West died. On Sept. 8, 2008, West, 87, was left trapped on defendant s bus for 14 hours and overnight after a nursing-home residents shopping trip. West, who suffered from mild dementia, ingested all the Tylenol and drank peroxide from the bus first aid kit. Temperatures dipped to 52 degrees overnight. No call to police or family was made for 10 hours. West was found at 3:15 a.m. dehydrated and hypothermic, and spent 10 weeks in a catatonic state until her death. Plaintiff argued that it was negligent for the defendant s bus driver and aides that went on the shopping trip to not do a head count and ensure that all residents were off the bus and back inside the nursing home. It also was asserted that it was against the standard of care to leave plaintiff trapped on the bus for 14 hours, to not realize she was missing, and to not contact the police for 10 hours after the bus had returned. Defendant contended that plaintiff s decedent, with mild dementia, got past their security, went outside, manually opened the bus door, went inside, closed the door, and became trapped inside. It was discovered that the defendant was uninsured and bankrupt. A successor corporation, Senior Care, Inc., purchased the assets of Hearthstone, but not its liabilities. Defendant failed to pay its attorneys legal bills, and defendant s counsel withdrew from the case. A default judgment was entered against defendant in the amount of $1.65 million. Collection attorneys will now be employed to try and execute upon any of defendant s remaining assets. Type of action: Nursing-home negligence Type of injuries: Death Name of case: Snell, et al. v. Hearthstone Management, Inc. Court/Case no./date: Kent County Circuit Court; NO; Dec. 8, 2011 Tried before: Judge Name of judge: Christopher P. Yates Demand: $700,000 Verdict amount: $1.65 million Most helpful expert: Dr. Gregory A. Kuldanek, internal medicine, Grand Rapids Insurance carrier: Self-insured Attorney for plaintiff: John R. Allaben Attorneys for defendant: Norris Cunningham, (Hall, Render, Killian, Heath & Lyman, P.C., Indianapolis, who withdrew prior to judgment); Hearthstone represented in pro per Status: Because Hearthstone is now out of business, actions will be filed against the successor corporation, Senior Care, Inc., and the officers and directors of Hearthstone. #19 Gasoline supplier, agent clash over delivery deal Deal killed one year after renewal; jury finds defendants breached it $1,466,666 In a lawsuit filed in Wayne County Circuit Court plaintiff/counterdefendant Express Oil Co. sought compensatory damages from defendants/counter-plaintiffs Pantall- Gallup LLC, d/b/a Van Buren Oil on claims of breach of contract. In addition, Pantall-Gallup LLC filed suit, along with co-counter-plaintiffs Van Buren Oil, LLC and Barrick Enterprises, Inc., seeking compensatory damages from counter-defendants Mohamad Alnouri, Express Gas Co. and Express Oil Co. on a counterclaim of statutory conversion. In 1997, Pantall-Gallup, LLC, under the Van Buren Oil name, was rolling out a business to transport gasoline from major gasoline companies to gas stations for which it had contracts to be the delivering carrier. CHARFOOS GIOVAN Van Buren s owners sought advice from Alnouri, owner of Express Oil, having done business with him before. Alnouri had developed a reputation among Arab-American gas station owners, and was considered a reliable intermediary between suppliers, gas companies and individual stations. With such contacts, it was asserted that Van Buren believed Alnouri would enlarge its business by signing up gas stations, and would receive a portion of the gross profit Van Buren received for each station. As part of the contract, Express Oil had to be in dayto-day contact with the gas stations regarding orders and delivery by Van Buren. In addition, Alnouri was re- Continued on page B8
8 B8 Michigan Lawyers Weekly January 9, 2012 Cite 26 Mich.L.W. 240 LARGEST VERDICTS Continued from page 7 sponsible for undertaking lawsuits for collections for any of his accounts that were in serious arrears or default. The contract had a 10-year renewal option, and in 2007, the contract was renewed for another 10 years. On July 11, 2008, it was contended that Van Buren breached the contract in writing, with an effective July 31, 2008, date for its termination. Plaintiff asserted that the reason for the breach traced back to 2006, when one of the partners of defendant Pantall-Gallup sold Van Buren Oil s customer list in an asset-only sale to Robert Barrick, a wholesale gasoline supplier, for $4 million. The list contained approximately 150 names, among which were the 17 stations that, under the subjobber contract, Express Oil was entitled to a commission. It was further contended that Barrick expressed displeasure over the contract because it favored Express Oil, and, after attempting to have Alnouri rewrite a new contract, started withholding plaintiff s commission in an amount more than $100,000, then sent the letter of cancellation. Defendants contended there was impropriety on the part of Alnouri prior to defendants alleged breach of contract, and asserted statutory conversion. The jury concluded that the defendants were the first to breach the contract, and awarded $1,466,666 to plaintiffs/counter-defendants; and also awarded $33,000 to defendants/counter-plaintiffs on claims of alleged conversion post-breach of contract. Types of actions: Breach of contract (claim); statutory conversion (counterclaim) Type of injuries: Economic Name of case: Express Oil Co., et al. v. Pantall-Gallup LLC, et al. Court/Case no./date: Wayne County Circuit Court; CK; Nov. 3, 2011 Name of judge: Robert L. Ziolkowski Demand: $950,000 Highest offer: $150,000 Verdict amount: $1,466,666 (plaintiffs/counterdefendants); $33,000 (defendants/counter-plaintiffs) Most helpful expert: Michael Portis, CPA, Garden City Attorneys for plaintiffs/counter-defendants: Lawrence S. Charfoos, William J. Giovan Attorneys for defendant: John R. Monnich, John R. Monnich Jr. Status: Is being appealed. #20 Transportation firm questions extent of injuries after accident Defendants admit fault for piling material too high, causing road spill $1.45 million In a third-party auto negligence lawsuit filed in Wayne County Circuit Court, plaintiff Lawrence A. Sand sought economic and non-economic damages from defendants Towles Transport, Inc. and James Edward Petty Jr. for injuries sustained in an accident. In March 2009, Sand, a 60-yearold, self-employed handyman and KOLTONOW construction worker was driving behind a Towles semitruck that Petty was driving on westbound Interstate 94 in Detroit. The truck struck an overpass, causing the load he was carrying to spill onto the freeway. The load spilled in front of the Sand s vehicle, and he could not avoid the spilled material. Sand suffered several injuries from the resulting crash, including torn rotator cuff and shoulder joint injury as well as two cervical disc herniations, all requiring surgery. Towles and Petty admitted the construction equipment was piled too high on the truck and it was their fault that the accident occurred. Plaintiff contended being permanently disabled from working because of his multiple-level fusion and shoulder surgeries, and that serious impairment of body function had occurred. Defendants asserted that plaintiff had pre-existing injuries and treatment for neck, shoulder and head injuries, as he was a longtime tradesman, and that plaintiff s life had not changed as a result of the accident. It also was contended that plaintiff had recovered and should have been able to return to work and normal activities, and that surveillance video showed plaintiff was not seriously impaired. The jury found for the plaintiff and awarded $1.45 million. Type of action: Third-party auto negligence Types of injuries: Torn rotator cuff and shoulder labrum, cervical disc herniations Name of case: Sand v. Towles Transport, Inc., et al. Court/Case no./date: Wayne County Circuit Court; NI; May 17, 2011 Name of judge: Prentis Edwards Demand: $750,000 Highest offer: $400,000 Verdict amount: $1.45 million Allocation of fault: Defendant and its driver admitted the construction equipment was piled too high on the truck, and it was their fault that the accident occurred Insurance carrier: Acuity Attorney for plaintiff: Leonard M. Koltonow Attorney for defendant: Kevin J. Plagens Key to winning: Jury rejected testimony from seven defense experts Status: Parties reached a confidential high/low agreement prior to jury deliberations. There was no appeal, and this case is closed. #21 Accident victim s future as hygienist is disputed Despite not having a job as one, her earning potential was damaged $1,395,852 In a lawsuit filed in the Court of Claims in Ingham County, plaintiff Heather Lynn Hannay sought compensatory damages from defendant Michigan Department of Transportation (MDOT) for injuries sustained in an auto accident. On Feb. 13, 2007, MDOT employee Brian Silcox was driving a stateowned salt truck. He negligently CHRISTENSEN failed to stop at a stop sign and collided with 22-year-old Hannay s car, totaling it. Hannay injured her right shoulder and neck in the accident. While her neck MRI was negative, it was asserted that it has remained painful since the accident. Further, it was contended, her shoulder has been more problematic, as she has STEMPKY undergone four shoulder surgeries. Her medical records and treating doctors attested to chronic pain syndrome, weakness, and substantial limitations in the use of her non-dominant arm. The unrebutted testimony confirmed that the pain would be permanent. Before the accident, it was asserted that Hannay was well on her way to becoming a dental hygienist. She had planned on this career since high school, and had initiated all the academic and vocational steps necessary to become a hygienist. Immediately after graduation, she worked as a dental assistant and completed all of her academic prerequisites for admission to dental hygiene school at Lansing Community College. She had not yet been admitted when the crash occurred. Treating doctors testified she would never be able to work as a hygienist due to her injured shoulder; accordingly, plaintiff claimed work loss based upon the loss of her career. A vocational rehabilitation counselor testified that her injury-related physical restrictions would limit her future employability. Defendant contended that plaintiff was not entitled to recover work-loss damages based upon a dental hygienist salary, because she was not yet working in that capacity. The court concluded that plaintiff proved only that she would work part time (60 percent) and awarded $1,395,852. Type of action: Third-party automobile negligence Types of injuries: Permanent right shoulder injury, neck injury, chronic pain syndrome Name of case: Hannay v. Michigan Department of Transportation Court/Case no./date: Court of Claims, Ingham County; NI; Nov. 18, 2011 Tried before: Judge Name of judge: Rosemarie E. Aquilina Highest offer: $250,000 Verdict amount: $1,395,852 Insurance carrier: State of Michigan Attorneys for plaintiff: David E. Christensen, Sarah S. Stempky Attorney for defendant: John P. Mack Status: Judgment entered, appeal filed. #22 Jury trebles damages in conversion, breach suit It s argued joint owners exceeded billing commission, overcharged $1,321,184 In a lawsuit filed in Saginaw County Circuit Court, plaintiffs Diversa Care Therapeutics, Inc. and Daniel P. Peterson sought economic damages from defendants Rehab Management Solutions, LLC and Larry Briand on claims of breach of contract, conversion, dissolution and member oppression. CONCANNON Defendants originally filed an action for an accounting and injunctive relief relating to a shareholder dispute between the parties. After repeated discovery violations, defendants underlying complaint was dismissed, and the trial proceeded on plaintiffs breach-of-contract and conversion counter-claims. The parties were joint owners of a limited liability company that ran a physical therapy practice. Plaintiffs asserted that the operating agreement governing the business provided for a commission payment to defendants for billing services. Those monies were payable without regard to profits. The operating agreement further provided for a split of the remaining profits, and provided for limits on the commission for billing services. For a period of six years, however, plaintiffs contended that the defendants exceeded the allowable billing commission by approximately 7 percent. The affected billings exceeded $7 million, making the approximate overcharges roughly $500,000. As a corollary, when the defendant filed the original action, the parties ceased to do business together. At the time of the split, there were hundreds of thousands of billings that had yet to be collected, and plaintiffs claimed they were entitled to its percentage share of those billings. It was asserted that that defendants conduct was not merely a breach of the operating agreement, but also constituted conversion. Defendants contended that the operating agreement, without any writing comporting with the Statute of Frauds, was orally amended. It also was asserted that, despite the fact that defendants sued plaintiffs as a member of the LLC, plaintiffs could not countersue under the same contract on the grounds that plaintiffs were an improper party. As for the receivables, which the jury converted, the defendant contended that, during the several years postbreakup, there must have been some distributions that were made, which, allegedly, should have been made to defendants as members of the LLC. Defendants then asked the jury to simply credit the claimed unpaid distributions against the converted sums and award no money for conversion. The trial court submitted the breach-of-contract and conversion issues to the jury. The jury found for the plaintiffs and awarded $286,013, which it then trebled to make the $1,321,184, under the conversion statute, MCL The member oppression and dissolution issues remain pending in the trial court. Types of actions: Shareholder dispute, conversion, breach of contract Type of injuries: Economic Name of case: Diversa Care Therapeutics, Inc., et al. v.
9 Cite 26 Mich.L.W. 241 January 9, 2012 Michigan Lawyers Weekly B9 Rehab Management Solutions, LLC, et al. Court/Case no./date: Saginaw County Circuit Court; CB; July 25, 2011 Name of judge: Fred L. Borchard Verdict amount: $1,321,184 Special damages: Treble damages of $858,038 Most helpful expert: James Hall, medical billing, Des Moines, Iowa Attorney for plaintiff: Andrew D. Concannon Attorney for defendant: Loyst Fletcher Jr. Key to winning: Aggressively tying together evidence on conversion claims and distinguishing them from breach-ofcontract damages in order to maximize amount of damages the jury could treble under the conversion statute, MCL Status: Appeal filed by defendant, motion to dismiss appeal file by plaintiff. #23 Worker says firing was unjust, discriminatory Zero-tolerance policy was reason defendant said it made its decision $1,093,734 In a lawsuit filed in Ingham County Circuit Court, plaintiff Michael Clum sought compensatory damages from defendant Jackson National Life Insurance Co. (JNL) on claims of discriminatory job termination. Clum was employed by JNL for 10 years. Though he had an excellent work record, there were occa- LENHOFF sional incidents of antagonism between Clum, who is white, and James DeMyers, an African-American coworker. Both workers were similarly situated maintenance workers, working under the same supervisor, work standards and discipline system. On Oct. 21, 2009, DeMyers became irritated with Clum over Clum s use of a pull cart to carry weights to JNL s exercise room. DeMyers believed Clum had scattered DeMyers tools on the floor when using the cart. A plaintiff s witness said that Clum was calm and did not return DeMyers hostility during the confrontation. The next day, DeMyers confronted Clum in the maintenance area, stared at him and asked, Do you have a problem? Although a plaintiff s eyewitness said that Clum responded, No. Do you have a problem?, a defense witness claimed that Clum told DeMyers, Do you want to step outside?, a statement that the defendant considered a violent threat. Although Clum had seniority and a better work record than DeMyers, Clum was discharged by JNL for the incident, while DeMyers was not disciplined. Plaintiff s expert, vocational rehabilitation specialist Robert Ancell, testified that plaintiff has almost no chance of ever finding a job paying what plaintiff was earning by defendant. Plaintiff asserted that it would have been rational from a business standpoint to keep plaintiff and discharge DeMyers, and that diversity consciousness was a reason DeMyers was not punished for similar behavior. It also was contended that, even if Clum did ask if De- Myers wanted to step outside, DeMyers should also have been punished, as his remark was just as hostile. Defendant contended that plaintiff s firing was because the managers who made the termination decision believed in a zero-tolerance policy of violence, and that plaintiff had never reported feeling threatened by De- Myers. In addition, it was asserted, DeMyers was the one to walk away from the situation, and therefore not disciplined. The jury found for the plaintiff and awarded $72,178 and $671,556 in past and future economic damages, respectively; and $200,000 and $150,000 in past and future mental-anguish damages, respectively. Type of action: Elliott-Larsen Civil Rights Act Types of injuries: Economic, mental anguish Name of case: Clum v. Jackson National Life Insurance Co. Court/Case no./date: Ingham County Circuit Court; CL-C30; Nov. 1, 2011 Name of judge: Paula J.M. Manderfield Demand: $800,000 Highest offer: $100,000 Verdict amount: $1,093,734 Special damages: Phil Gaglio, financial analyst, Southfield; Robert Ancell, vocational rehabilitation, Southfield Insurance carrier: Self-insured Attorneys for plaintiff: Glen N. Lenhoff, Robert D. Kent- Bryant Attorney for defendant: Scott L. Mandel Key to winning: Vigorous cross-examination of defendant s discharge decision-makers Status: Will be appealed. #24 Paralyzed dentist s femur fractured in PT Plaintiff says sudden pressure put onto leg breached standard of care $1.05 million In a medical-malpractice lawsuit filed in Oakland County Circuit Court, plaintiff Dr. John Buchheister sought compensatory damages from defendants Martin Berthiaume and William Beaumont Hospital after a fractured femur resulted in the need for a colostomy bag. In August 2006, Buchheister, a dentist, suffered an injury at L1-L2, MEKLIR paralyzing him from the waist down. Besides occupational and physical therapy, he underwent a specialized bowel program to help control his bowel and bladder and allow him to use a toilet instead of getting a colostomy and having to use a colostomy bag. In December 2006, he developed ischemic colitis a temporary inflammation of part of the large intestine that occurs when there is reduced blood flow to the bowel that weakened him. He returned to physical therapy to gain his strength back, when it was discovered that he had developed heterotopic ossification, or bone growth in the muscle and tissue area, in his right femur, limiting his range of motion. On Feb. 8, 2007, during physical therapy, Berthiaume, an occupational therapist who had worked with Buchheister, applied sudden pressure to his leg in an attempt to increase his range of motion. The pressure fractured Buchheister s femur, requiring surgery that would no longer allow for him to be capable of using a toilet, instead resorting to a colostomy bag. Plaintiff asserted that defendant Berthiaume breached the standard of practice, and that the injury was avoidable. Defendant contended that plaintiff s conditions came together quickly, and that there was no way to avoid such an injury from occurring. The jury found for the plaintiff and awarded $1.05 million. Type of injuries: Fractured femur resulting in need for colostomy bag Name of case: Buchheister v. Berthiaume, et al. Court/Case no./date: Oakland County Circuit Court; NH; June 21, 2011 Name of judge: Leo Bowman Demand: $200,000 Verdict amount: $1.05 million Mediation award: $150,000 Attorney for plaintiff: Samuel A. Meklir Attorney for defendant: Audrey J. Forbush Status: Case settled. #25 Plaintiff: Tennis elbow surgery wasn t needed It s argued that ulnar nerve release should have been done instead $1,007,500 In a medical-malpractice lawsuit filed in Oakland County Circuit Court, plaintiff Emily Driscoll sought compensatory damages from defendants Dr. Jeffrey E. Gorosh and Hand Surgery Associates of Michigan, P.C. In May 2007, Driscoll, a piano major at Central Michigan University, underwent lateral epicondyle, BECK or tennis elbow, surgery by Gorosh. However, plaintiff contended, the necessary surgery for her condition should have been for ulnar nerve release, to relieve continued numbness in her left ring and pinky fingers. The procedure ended up creating ongoing, likely permanent tennis elbow symptoms. Though defendants admitted violating applicable standard of care shortly before trial, it was asserted that there was no objective evidence of any ongoing injuries; that there were substantial gaps in treatment and/or office visits; and that upper arm, shoulder and neck pain that developed later on was not related to the surgery. Defendants also contended that plaintiff was exaggerating her symptoms, as one year later, she was able to perform and successfully complete a one-hour piano recital to obtain her music degree. The jury deliberated for hours before awarding plaintiff $1,007,500. Type of injuries: Persistent lateral epicondylitis Name of case: Driscoll v. Gorosh, et al. Court/Case no./date: Oakland County Circuit Court; NH; April 25, 2011 Name of judge: Colleen A. O Brien Verdict amount: $1,007,500 Highest offer: $15,000 Allocation of fault: Defendants admitted liability before trial Most helpful expert: Andrew Haig, rehabilitation specialist, Ann Arbor Attorney for plaintiff: Daniel P. Beck Attorneys for defendant: Joseph F. Babiarz Jr., Robert P. Siemion Keys to winning: Precise cross-examination of defendant and defense witnesses; convincing jury that injury substantially affected plaintiff s life Status: Expected to be appealed. TELL US HOW YOU WON YOUR CASE Verdicts and settlements may be reported at milawyersweekly.com/submit-verdicts/ or by submitting the form included at the back of this section. For information contact Douglas J. Levy at or
10 B10 Michigan Lawyers Weekly January 9, 2012 Cite 26 Mich.L.W. 242 LARGEST SETTLEMENTS #1 Two-hour delivery delay results in cerebral palsy OB should have responded sooner while fetus in distress, plaintiff says $6.25 million In a confidential lawsuit, plaintiff next friends to plaintiff minor sought compensatory damages from defendant medical center and defendant OB physician on claims of cerebral palsy, spastic quadriplegia and developmental delay following birth. Approximately 30 minutes following admission to the hospital, the MCKEEN mother, having been placed on a fetal heart monitor, was seen by the first-year OB resident, who discovered meconium staining and severe variable decelerations. The OB resident was discovered to have been practicing without supervision of a senior resident. Shortly thereafter, the attending OB was contacted by phone, but didn t call back until 30 minutes later. At that time, there were late fetal heart-rate decelerations developing. The first-year resident then discussed the case with the senior fourth-year resident, and a decision to deliver by C-section was made over the phone. However, from the time of decision to delivery by C-section, it took nearly two hours to deliver the child. Discovery revealed the defendant attending on-call OB apparently had child care issues that compelled her to choose to stay home while the fetus was in distress. At birth, there was tight nuchal cord. Plaintiff s neonatology and child neurology experts testified the child sustained hypoxic-ischemic injury during the two-hour delay, immediately prior to delivery. The child displayed multi-organ dysfunction following birth, despite a cord Ph above 7.0. Plaintiff was able to explain how the child s severe hypoxia-ischemia at birth was not inconsistent with a cord Ph above 7.0 by testimony of a world-renowned expert/author in the field of umbilical cord blood gases. The child is now 4 years old with spastic quadriplegia and developmental delay. Defense contended this was not a case of acute infrapartum asphyxia, and the cord Ph above 7.0 was inconsistent with a severe acute hypoxic ischemic insult just prior to birth. The defense argued there was no scientific evidence delivery two to three hours earlier would have changed the outcome. The matter settled for $6.25 million. Types of actions: Birth trauma, medical malpractice Types of injuries: Cerebral palsy, spastic quadriplegia, developmental delay Court/Case no./date: Confidential; Aug. 25, 2011 Settlement amount: $6.25 million Attorneys for plaintiff: Jeffrey T. Meyers, Brian J. McKeen, Terrance J. Cirocco ABOUT THIS SECTION This section includes verdicts and settlements of $1 million or more obtained in 2011 that were reported to Michigan Lawyers Weekly and verified on or before Dec. 22, 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 you have any questions, please contact Douglas J. Levy at (248) or #2 (tie) Truck driver says coils were stacked wrong, led to legs being crushed Discovery: Banding tools failed before, crane operator was impatient $6 million In a negligence lawsuit filed in Wayne County Circuit Court, plaintiff Henry Patrick McGhee sought compensatory damages from defendants Olympic Steel, Inc., Olympic Steel Lafayette, Inc. and several of their employees for injuries sustained in an accident. On May 21, 2009, McGhee, a 40- year-old truck driver from Eutaw, Ala., received serious crush injuries to his lower legs when a set of three steel coils, weighing a total of about 10 tons, tipped over on him on the deck of a flatbed trailer during the loading of the coils on the trailer owned by defendant Olympic Steel. At the time of the accident, McGhee had not yet begun chaining the coils in place. Several witnesses reported observing the coils leaning at an angle, just before they fell on McGhee. McGhee s injuries required a below-the-knee amputation of his right leg, and his left leg was severely crushed, but did not require amputation. He is now unable to work as a truck driver. In advancing theories of negligence, plaintiff asserted that the coils should simply have been laid flat, pancake style as plaintiff had requested to eliminate the risk of tipover. Several members of defendant s own management agreed that loading thin coils of this large diameter upright done in this instance because of customer preference is dangerous precisely because of the tip-over risk. Discovery also revealed that the brakes on the crane being used to load the coils were in serious need of repair, as reported for at least two months before the accident by defendant s own safety manager. Plaintiff alleged that worn brakes make control of the crane difficult, and such a problem contributed to the tip-over, as the crane C-hook appeared to bump the coil package just before it tipped over. Plaintiff also learned in discovery that the banding tools used to band the coils together had failed safety tests for several months before the accident, but nevertheless had been returned to service by the plant safety director. He testified that he heard the distinct sound of bands breaking immediately before being struck, and asserted that the breaking bands also contributed to the tip-over (the actual broken bands were discarded by the defendant during its investigation of the incident). In addition, it was learned in discovery that defendant s own employees had complained to management on several occasions that the crane operator failed to operate the crane safely, endangering his own co-employees lives and limbs. Plaintiff perceived this crane operator as impatient and in a hurry during the loading. Defendant denied negligence, and claimed plaintiff was comparatively negligent because he had not begun to chain the coils in place, and that the carrier plaintiff hauled for Black Warrior of Tuscaloosa, Ala. was negligent in failing to train plaintiff. However, plaintiff contended that he had almost 20 years of experience hauling steel, and countered that loading such thin coils of this large diameter in an upright manner is unusual, and he had recommended it not be undertaken. The matter settled for $6 million. Type of action: Negligence MORGAN Types of injuries: Below-the-knee amputation of right leg, severe crush injuries to left leg Name of case: McGhee v. Olympic Steel, Inc., et al. Court/Case no./date: Wayne County Circuit Court; NP; Dec. 15, 2011 Name of judge: Robert L. Ziolkowski Settlement amount: $6 million Most helpful experts: Claude Baker, crane operation and causation expert, Phoenix; Matthew Meyerhoff, proper truck-loading techniques expert, Baltic, S.D. Insurance carrier: Chubb Attorneys for plaintiff: Courtney E. Morgan Jr. (Dearborn), Matthew Glover (Tuscaloosa, Ala.) Attorney for defendant: Nathan A. Dodson Keys to winning: Careful preparation for numerous fact witness depositions, resulting in several key admissions; extensive legal research and preparation to meet defendants motions for summary disposition, which raised novel questions of duty of a shipper to a truck driver, based on decades-old federal precedent and federal motor carrier safety regulations; hiring the right experts to establish liability; thoroughly documenting damages #2 (tie) Induction with Pitocin blamed for asphyxia Mother testifies asking obstetrician about C-section long before delivery $6 million In a confidential lawsuit, plaintiff next friend (mother) to plaintiff minor sought compensatory damages from defendant obstetrician, defendant nurse and defendant hospital on claims of birth trauma and medical malpractice resulting in hypoxic-ischemic encephalopathy, cerebral palsy and developmental delay. On Dec. 28, 2007, the mother was admitted to defendant hospital under the care of defendant obstetrician and defendant nurse for induction of labor with Pitocin. The mother was at term, and her prenatal course had been uneventful. Despite steadily increasing Pitocin, it was noted to be difficult to determine the uterine contraction pattern. Four hours later, a terminal bradycardia developed, and the obstetrician called for a C-section; delivery was accomplished 17 minutes later, but the child was asphyxiated prior to delivery. The asphyxia was so severe that it caused hypoxic ischemic encephalopathy, which evolved into a permanent static encephalopathy. In addition, the child has been diagnosed with spastic cerebral palsy, and will require lifelong attendant care and supervision. Plaintiff s counsel contended that Pitocin is a synthetic form of oxytocin, a naturally occurring hormone which stimulates uterine contractions. It increases the resting tone of the uterus, strength and frequency of uterine contractions. Each contraction results in a temporary interruption of blood flow through the uterus. In every labor augmented with Pitocin, the standard of care requires continuous electronic fetal heart rate monitoring (EFM). EFM involves recording fetal heart rate and maternal uterine activity. The purpose of fetal monitoring is to allow clinicians to recognize patterns consistent with fetal hypoxia and intervene in order to avoid needless neurologic injury. The birth trauma claim asserted combined negligence of defendant obstetrician and defendant in first creating fetal distress in plaintiff minor by injudicious use of Pitocin, then delaying in timely performing a C-section in the face of mounting evidence that the child was not tolerating the stress of labor and needed to be delivered. It was further contended that, as a result of the defendants joint and several negligence, plaintiff minor sustained an acute near total asphyxia in the minutes prior to delivery. Plaintiff retained multiple experts who have testified in support of that fact, and the mother testified that she asked defendant obstetrician about a C-section long before the terminal bradycardia. The matter settled for $6 million. Types of actions: Birth trauma, medical malpractice Types of injuries: Hypoxic-ischemic encephalopathy, cerebral palsy, developmental delay Court/Case no./date: Confidential; Nov. 21, 2011 Settlement amount: $6 million MCKEEN DAWES Attorneys for plaintiff: Brian J. McKeen, Terry A. Dawes
11 Cite 26 Mich.L.W. 243 January 9, 2012 Michigan Lawyers Weekly B11 #2 (tie) Improper blood glucose monitoring at hospital leads to hypoglycemia Plaintiff contended it was known that newborn was at an increased risk $6 million In a confidential medical-malpractice lawsuit, plaintiff next friend to plaintiff minor sought compensatory damages from defendants hospital and pediatricians on claims of catastrophic brain damage due to a prolonged period of hypoglycemia (low blood glucose). The child was born Aug. 18, 2003, as a term newborn, but had a significant risk factor for hypoglycemia. At 4 pounds 13 ounces, he was found to be small for gestational age (SGA); he had decreased fat stores and decreased glycogen in his liver, both risk factors for development of hypoglycemia. On the first and second day of life, the child s assigned was defendant Pediatrician A. Due to persistent low blood glucose, an IV of dextrose MCKEEN DAWES solution was started Aug. 19, 2003 at 5:40 p.m. The child s response was normal, as his blood glucose went up and stayed above 50 during the time he was given supplemental dextrose via IV. The next day at 10 a.m., an order was written to begin reducing the amount of supplemental dextrose child was given, to be sure if the child can maintain a safe glucose level (above 50) on oral feedings alone with or without oral supplementation. It was asserted that the nursing staff at defendant hospital negligently failed to appropriately wean the child s IV, and to consistently check pre-prandial blood glucose after the IV was discontinued, as his post-prandial blood glucose dipped into the 40s throughout the day, and the nursing staff only checked minor child s blood glucose five times. In addition, it was contended that the nursing staff failed to perform a blood glucose for the last 7 hours and 45 minutes the child remained in the hospital Given this information, it was asserted that it was imperative that Pediatrician B (the pediatrician responsible for the child s care on the day of discharge) and the nursing staff restart the dextrose IV, continue to monitor Minor child s pre-prandial blood glucose, and refrain from discharging him. After being discharged, the next morning the mother found that the child was cold and clammy, not moving, and bluish in color. Upon arrival at the emergency department, he was noted to be profoundly hypothermic and hypoglycemic with no detectable blood glucose. Permanent brain injury had occurred in the hours after the discharge and before the child was returned to the hospital. The child will never walk or talk normally, live on his own, or work, and will require lifelong 24-hour nursing care for the rest of his life. Plaintiff asserted that defendants knew the child was at increased risk for hypoglycemia due to his SGA status. It was further contended that if the defendants had kept the child in the hospital, consulted with a neonatologist, and worked the child up, they would have easily identified the congenital lack of cortisol and growth hormone as another risk for hypoglycemia. One of plaintiff s pediatrician experts opined that Pediatrician A was negligent in failing to consult a neonatologist to come in and evaluate minor child and ensure that his blood glucose was properly monitored; and, more importantly, to ensure that he was not discharged until such time that it was established that minor child could maintain his blood glucose on oral feedings alone. The matter settled for $6 million. Type of injuries: Permanent brain injury due to severe hypoglycemia Court/Case no./date: Confidential; Feb. 25, 2011 Settlement amount: $6 million Attorneys for plaintiff: Terry A. Dawes, Brian J. McKeen, #3 Mom: C-section should have happened sooner Plaintiff asserts fetal distress signs were not heeded by defendants $4.5 million In a confidential lawsuit, plaintiff next friend (mother) to plaintiff minor sought compensatory damages from defendant OB/GYN medical center and defendant hospital on claims of birth trauma and medical malpractice resulting in hypoxic-ischemic encephalopathy and cerebral palsy. On March 23, 2005, the mother was scheduled for a prenatal visit with her obstetrician at defendant OB/GYN medical center. She was 35 weeks pregnant. The mother reported that she had, the previous day, perceived a decrease in fetal movement. Child s mother s blood pressure was also slightly elevated; therefore, the obstetrician instructed the mother to proceed directly to defendant hospital for evaluation and monitoring. Upon arrival, the mother was taken to the OB triage area, where a nurse took vital signs and hooked the mother up to a fetal monitor. The mother s blood pressure was elevated (133/99) and a urinalysis showed 2+ protein. A repeat blood pressure confirmed hypertension (130/90), and the findings were suggestive of preeclampsia. No further blood pressure checks were done before the child was born. The initial external fetal monitor strip, applied from 9 a.m. to about 9:24 a.m., showed decreased variability suggesting that the child may not be tolerating the intrauterine fetal environment. Due to the non-reassuring fetal heart tones, a first-year OB resident performed a biophysical profile (BPP) from about 9:25 a.m. through 9:50 a.m. which is why there is no recording of fetal heart rate during that time. Following the BPP, the resident documented that the mother was remote from delivery, fetal heart tones were non-reassuring, and she would continue to monitor the non-reassuring heart tones. It was asserted that, rather than recognize that the unborn child was at increased risk for permanent neurologic injury and needed to be delivered by emergency C-section, the obstetrician ordered an oxytocin challenge test (OCT). When fetal monitoring resumed at about 9:51 a.m. variability appeared worse. Despite this, no effort was made to stimulate the child in an effort to elicit acceleration in heart rate. The obstetrician arrived at the hospital at about 10:45 a.m. to evaluate the patient, and decided the baby needed to be delivered by stat C-section. The child was born a full half-hour after the obstetrician arrived at the hospital. The child s discharge summary from defendant hospital indicates he was diagnosed with hypoxic-ischemic encephalopathy. He also has been diagnosed with cerebral palsy, more pronounced on the left side. He receives occupational therapy, physical therapy, and speech therapy. Because of his spastic muscles, the child has been injected with Botox; given Baclofen, an oral medication; and wears ankle foot orthotics on each leg. He will require these treatments for life. Plaintiff asserted that the attending obstetrician, the first-year resident, and the nursing staff of defendant hospital failed to recognize impending fetal distress and failed to emergently deliver the minor child, via C- section. The matter settled for $4.5 million. Types of actions: Birth trauma, medical malpractice Types of injuries: Hypoxic-ischemic encephalopathy, cerebral palsy Court/Case no./date: Confidential; Jan. 31, 2011 Settlement amount: $4.5 million Attorneys for plaintiff: Brian J. McKeen, Terry A. Dawes MCKEEN DAWES #4 Baby s brain injury disputed by defense Two hospitals blame one another after delay in treatment, support $4.425 million In a confidential medical-malpractice lawsuit, plaintiff next friend to plaintiff minor sought compensatory damages from defendants Hospital A and Hospital B on claims of brain injury due to lack of oxygen, cerebral palsy, motor, speech and cognitive delays following birth. Plaintiff minor was born with a congenital defect of the aorta called a coarctation, a narrowing that causes diminished blood flow out of the heart. Due to a delay in diagnosis and treatment, the baby suffered a severe brain injury, causing quadriplegia and cognitive impairments. The baby was brought to Hospital A s ER department eight days post-birth with symptoms of rapid breathing, pallor, lethargy and coldness of the skin. Although an echocardiogram eventually demonstrated the defect, plaintiff claimed that there was a delay in the performance of the study and that the baby was not adequately treated and supported in the meantime. Once the diagnosis was made, the baby was transferred to Hospital B for definitive surgical treatment. Plaintiff further alleged that there also was an inappropriate delay at Hospital B in providing timely medical and surgical treatment for progressive cardiac failure caused by the coarctation. Shortly before the baby was taken to the operating room at Hospital B, he suffered a cardiac arrest. Although the resuscitation was successful, he suffered a severe hypoxic-ischemic brain injury during the resuscitative efforts. During the course of discovery, there was considerable finger pointing as to which facility bore the blame for the outcome. After a settlement was reached with Hospital B, Hospital A brought a motion for a Daubert hearing which was granted. The primary issue was whether there was sound science supporting plaintiff s claim that more expeditious supportive would have had a beneficial impact on the outcome. The hearing lasted two days and involved testimony from several experts in the fields of pediatric cardiology and pediatric intensive care. Moreover, numerous medical articles were submitted for the court s consideration. After the hearing, the court wrote a lengthy opinion denying Defendant Hospital A s motion to strike the testimony of plaintiff s causation experts. Shortly thereafter, a settlement was reached with Hospital B and various members of its staff. The total settlement with all defendants was $4.425 million. Types of injuries: Brain injury due to lack of oxygen, cerebral palsy, motor, speech and cognitive delays Court/Case no./date: Confidential; March 21, 2011 Tried before: Settlement post-facilitation Settlement amount: $4.425 million Most helpful experts: Dr. Gregory Hammer, pediatric intensive care, Stanford, Calif.; Dr. Steven Schwartz, cardiology, intensive care, Toronto; Dr. David Rubin, emergency medicine pediatrics, New Rochelle, N.Y.; Dr. Linda Snelling, pediatric intensive care, Providence, R.I. Attorneys for plaintiff: Charles R. Ash III, Robert B. Sickels SICKELS ASH Continued on page B12
12 B12 Michigan Lawyers Weekly January 9, 2012 Cite 26 Mich.L.W. 244 LARGEST SETTLEMENTS Continued from page 11 #5 Cerebral palsy was avoidable, mother says Plaintiff: maternal, fetal heartbeats should have been distinguished $3.9 million In a confidential lawsuit, plaintiff mother, on behalf of plaintiff minor, sought compensatory damages from defendants delivering physician and hospital for birth trauma-related injuries. On the day prior to her scheduled induction, plaintiff mother went to the hospital in labor. The fetal heart monitor showed the baby was doing fine. The doctor, a member of plaintiff s prenatal care clinic, recognized the baby was in a position to deliver face first, which would require additional monitoring. Although a C-section is often recommended, it was not mentioned in this case. It was asserted that the fetal monitor used at this hospital was known to confuse the mother s heartbeat with the baby s, and the monitor s manufacturer recommended use of a pulse oximeter to easily overcome this deficiency. Plaintiff asserted it was not done here, and contended that the nursing staff claimed they had never been trained to use the pulse oximeter; there also was testimony that nurses and physicians rarely used pulse oximeters during labor. When the mother s heart rate went up to 150 and above, the fetal heart monitor showed a heartbeat of 150 and above. It was asserted by plaintiff that the mother s vital signs should have confirmed that this was the mother s heartbeat, but the medical staff thought it was the baby s. Upon delivery, the baby had significant facial bruising because she was delivered face-first. She also was born depressed because of inadequate oxygen supply during delivery, and was diagnosed with mild to moderated hypoxic ischemic encephalopathy. Plaintiff asserted that the nursing staff and delivering physician should have obtained a continuous tracing of the maternal pulse to distinguish between the fetal and maternal heart rates, so that delivery would have occurred sooner based on the dangerously low fetal heart rate. Defendants position was that a face presentation does not require a C-section delivery. Further, defendants contended the nursing staff distinguished the maternal and fetal heart rate by its audible tone, and the baby s heart rate was recording throughout. Also, it was contended, plaintiff minor exhibited ataxic cerebral palsy, which is not recognized by the American College of Obstetricians & Gynecologists as the accepted type of cerebral palsy resulting from hypoxic ischemic encephalopathy. In addition, defendants asserted that plaintiff minor would live a normal independent life, and had only limited damages. The matter settled for $3.9 million. Types of actions: Birth trauma, medical malpractice Types of injuries: Brain injury due to lack of oxygen, mild cerebral palsy, motor, speech and cognitive delays Court/Case no./date: Confidential; Oct. 12, 2011 Tried before: Mediation Settlement amount: $3.9 million REITER WALSH SABATINI PLASTIRAS Most helpful expert: InFocus Research Group, Shelby Township Attorneys for plaintiff: Jesse M. Reiter, Rebecca S. Walsh, Juliana B. Sabatini Plastiras #6 Baby has cerebral palsy, developmental delays Defendants contend brain damage happened weeks before the delivery $3.6 million In a confidential lawsuit, plaintiff mother sought compensatory damages from defendants delivering physician and hospital for birth trauma-related injuries, including developmental delays and mild cerebral palsy. Plaintiff was pregnant for the first time and treated with her private physician for prenatal care. REITER Prenatal care was overall unremarkable with normal prenatal testing. When the patient reached term (40 weeks), she had fetal monitor testing. The testing was overall reassuring but had some non-reassuring findings. Induction of labor was started. Fetal heart tones were initially reassuring, but later in labor, they became WALSH non-reassuring. Labor progressed and the baby was delivered via vaginal instrument delivery. Cord blood gases and Apgar scores were normal. The baby suffered from intracranial bleeding and had seizures. Subsequently, the baby exhibited developmental delays and mild cerebral palsy. Plaintiff asserted there was trauma during the birth, but defendants SABATINI PLASTIRAS contended the brain damage occurred weeks before the birth. The matter settled for $3.6 million Types of actions: Birth trauma, medical malpractice Types of injuries: Developmental delays, mild cerebral palsy Court/Case no./date: Confidential; Sept. 21, 2011 Tried before: Mediation Settlement amount: $3.6 million Most helpful expert: InFocus Research Group, Shelby Township Attorneys for plaintiff: Jesse M. Reiter, Rebecca S. Walsh, Juliana B. Sabatini Plastiras #7 Patient s quadriplegia blamed for delayed MRI, lack of checking Spinal cord compression detected too late for 41-year-old to be saved $3.36 million In a confidential lawsuit, plaintiff patient sought compensatory damages from defendant hospital on medicalmalpractice claims that resulted in quadriplegia. On Jan. 6, 2006, plaintiff, 41, went to the hospital with complaints consistent with spinal epidural abscess (SEA), an infection in the epidural space. He had no neurological deficits upon admission. Based on his complaints and lab tests, the emergency department physicians immediately concluded that SEA was top on the differential diagnosis. A stat MRI was ordered, but due to plaintiff s excruciating pain in the spin, he was unable to lie still long enough to allow the test to be done, despite the use of conscious sedation. The MRI was still ordered, but was not performed over the next few days. On Jan. 8, a second MRI was attempted, this time with less sedating medicine ordered. Because of this, plaintiff could not lie flat, and the test was not completed.. On Jan. 9, the internist was told that no anesthesiologist was available to do a consultation on a Monday afternoon. The head of the department of anesthesia testified that no request for anesthesia was made. However, plaintiff s anesthesiology experts testified that an MCKEEN anesthesiologist should have been available to consult on the patient to allow the then-three-day-old MRI order to be completed. Before leaving for the day Jan. 9, the attending internist wrote orders for a post-void residual and for neurochecks on plaintiff ever four hours; the orders illustrated that there was concern plaintiff might develop neurological deficits. DAWES The medical records reflected that at 6:45 p.m. Jan. 9, plaintiff had a post-void residual of 800cc, which plaintiff asserted was clear evidence of urinary retention and new-onset neurological deficit. Despite this finding, it was contended that the nurse caring for plaintiff neither notified a doctor nor did the ordered neurochecks. Plaintiff was later noted to have numbness and inability to move his legs, and the nurse who noted this again failed to notify a physician. A physician was contacted at 1 a.m. Jan. 10, six hours after the post-void residual results were known. The MRI was finally done 11:30 a.m. Jan 10, and showed an SEA with significant spinal cord compression. Plaintiff was immediately taken to surgery, where a multi-level decompression and evacuation of the abscess was done. However, the delay in diagnosis and treatment resulted in permanent quadriplegia. Plaintiff asserted that the order for a stat MRI should not have taken four days to be fulfilled, thus breaching the standard of care. It also was contended that the failure of the nursing staff to do neurochecks and report new onset neurological defects breached the standard of care. The matter settled for $3.36 million. Types of injuries: Spinal cord injury, quadriplegia Court/Case no./date: Confidential; May 16, 2011 Settlement amount: $3.36 million Attorneys for plaintiff: Brian J. McKeen, Terry A. Dawes #8 Seaman injures brain, fractures wrists on ship Behavioral, vocational, memory limitations make him unemployable $3.3 million In a confidential lawsuit filed in U.S. District Court for the Eastern District of Michigan, plaintiff seaman sought compensatory damages from defendant ship owner for injuries sustained in an accident. Plaintiff, 50, was working for the defendant ship owner for seasons, essentially working from April through February. Duties included painting KARAMANIAN and cleaning tunnels and ballast tanks while they were at sea; when at port, he would load or unload the vessel, run the winch, help pull holds, and help the bosun. On Dec. 16, 2009, while removing railing around high hatches, plaintiff fell into an empty cargo hold as the vessel was entering the port. He was put into a gurney, lifted out of the hold, and taken by ambulance to a hospital in Escanaba. He was then taken to a hospital where he underwent brain surgery to remove a subdural hematoma. He remained in the hospital for two weeks. In addition to the subdural hematoma, plaintiff sustained fractures to both wrists. He also had swelling of his right leg and fractures to the bones on the right side of his face. He started in outpatient physical, occupational, and speech therapy programs. He followed up with a brain surgeon and an orthopedic surgeon. He also was seen at the University of Michigan Hospital for neuropsychological testing and by doctors in the physical medicine department.
13 Cite 26 Mich.L.W. 245 January 9, 2012 Michigan Lawyers Weekly B13 Defendant s analysis of causal factors for the fleet accident, which was approved by the captain, found the root causes of the accident to be process, equipment, tools or materials; insufficient clearance or congestion; and job setup/conditions that were inherently hazardous. From a vocational rehabilitation standpoint, Plaintiff has sustained significant vocationally limiting problems. He has significant memory and behavioral problems such as irritability, temper, endurance and sleeping problems. Based on psychological findings, he remains unemployable. The matter settled for $3.3 million. Type of action: Jones Act Types of injuries: Brain injury, fractures to wrists, facial fracture, leg injuries Court/Case no./date: U.S. District Court, Eastern District of Michigan; confidential; Dec. 5, 2011 Settlement amount: $3.3 million Attorneys for plaintiff: Dennis M. O Bryan, Kirk E. Karamanian #9 (tie) Abscess is undetected, results in paraplegia Surgery to decompress spinal cord comes too late to save legs $3.25 million In a confidential medical-malpractice lawsuit, plaintiff patient sought compensatory damages from defendant hospital after becoming paraplegic. Plaintiff went to defendant hospital with complaints of back and chest pains. He was observed and monitored, and tests were done, none of which diagnosed anything. He lost muscle strength and feeling in his legs four days after being admitted. An epidural abscess was discovered. He was then admitted into surgery to decompress the spinal cord, but neurological damage was done and his use of his legs couldn t be restored. Plaintiff asserted defendant should have done an MRI and diagnosed the epidural abscess, so that surgery could be done in a timely manner and use of his legs could be restored. Defendants contended plaintiff s case was complicated, and the way he was treated was within the standard of care. The matter settled for $3.25 million. Type of injuries: Paraplegia Court/Case no./date: Confidential; March 1, 2011 Settlement amount: $3.25 million Insurance carrier: Self-insured Attorney for plaintiff: Andrew S. Muth Attorney(s) for defendant: Confidential #9 (tie) Marshal runs stop sign, kills father, daughter Sudden emergency, blinding sun used in assertions of negligence $3.25 million In a wrongful death/federal Tort Claims Act lawsuit filed in U.S. District Court for the Eastern District of Michigan, Northern Division, plaintiff Wenise Long, personal representative for the estates of Daniel A. Long and E. Long, sought compensatory damages from the United States of America and United States Marshals Service following a fatal auto accident. On March 17, 2008, Daniel Long, 38, and daughter E. Long, 5, were killed in an auto accident at a Birch Run intersection, when a U.S. deputy marshal ran through a stop sign and collided with the Longs vehicle. Daniel Long, who was unbelted, was ejected from the vehicle and died from massive internal injuries, and his daughter, who was belted, died as the result of a fracture to her neck from impact. The personal representative of both HOFFMAN estates filed a claim under the Federal Tort Claims Act. The U.S. Government did not respond to the claim until after the lawsuit was filed. In the face of the assertions of clear negligence causing the deaths, the Government sought to bar the claim based on the defense of sudden emergency though not pleaded in its answer on the theory that the deputy marshal was blinded by the sun as she drove east in CONCANNON the early morning hours when the accident took place. Also not pleaded, yet asserted, by the Government, was a defense that the driver was negligent in the death of his daughter such that a Notice of Non-Party Fault should reduce its exposure for the death of the minor child. Pre-trial motions regarding those issues were never heard by the Court. The matter successfully resolved at facilitation for $3.25 million. Types of actions: Wrongful death, Federal Tort Claims Act Types of injuries: Death of father and daughter in auto accident Name of case: Long, et al. v. USA Court/Case no./date: U.S. District Court, Eastern District of Michigan, Northern Division; 09-CV-10475; March 22, 2011 Name of judge: Lawrence P. Zatkoff Name of facilitator: Pamela Harwood Settlement amount: $3.25 million Special damages: Economic losses Most helpful expert: David Schaeffer, accountant, Saginaw Insurance carrier: Self-insured Attorneys for plaintiff: David D. Hoffman, Andrew D. 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14 B14 Michigan Lawyers Weekly January 9, 2012 Cite 26 Mich.L.W. 246 LARGEST SETTLEMENTS Continued from page 13 #10 Traffic light repairman extensively injured as truck collides with him Plaintiff says he and partner waved for driver to stop at the intersection $3.075 million In a confidential third-party auto negligence lawsuit, plaintiff senior journeyman signal technician sought compensatory damages from defendant driver and defendant trucking company for injuries sustained in an accident. In October 2010, plaintiff, who was working for a private company, was working on a broken traffic FAKHOURY light in the city of Detroit. Visibility was clear, with no snow or rain. Upon arrival at the intersection, plaintiff and his partner coned off the right lane of southbound traffic (keeping the left lane open for traffic) and activated the flashing and strobe lights on his work truck. In addition, they activated the flashing red signals on the traffic light, so all traffic would have to stop before proceeding through the intersection. Plaintiff asserted that when he ascended in the truck s lift bucket, he saw defendant driver driving a semi-truck southbound at a high rate of speed. He added that defendant did not stop or slow down at the intersection, and plaintiff and his partner both waved their hands imploring defendant to stop. At that point, plaintiff began to bring the bucket up, but defendant struck it, causing plaintiff to fly out of the bucket, fall out of his harness and strike a light pole. Plaintiff suffered a left tibia fracture; broken ribs; internal blunt trauma including acute hemopneumothorax of the left thorax; medial meniscus tears in both knees; and left shoulder and lower back injuries. He was an inpatient for 76 days after the accident, underwent five surgeries with his orthopedic surgeon, and has been disabled since the accident. Plaintiff asserted that not only did the semi-truck fail to slow down, but it is custom and practice of drivers of large commercial vehicles to be waved through the intersection by a signal technician after the driver has stopped and the signal technician has determined it is safe to pass. Such a method, it was contended, allows these kinds of trucks to pass safely through the intersection without having to detour or travel in opposite lanes. Defense contended that the semi-truck driver did stop at the intersection pursuant to Michigan law, and that plaintiff swung his bucket into the truck as the truck was crossing the intersection. It also was asserted that plaintiff and his partner should have instead closed down the entire intersection. It also was asserted that plaintiff never fell to the ground from the bucket, but instead was left suspended 3 feet from the ground, and that plaintiff s partner then unlatched or cut him from the harness. The matter settled for $3.075 million. Type of action: Third-party auto negligence Types of injuries: Left tibia fracture, broken ribs, internal blunt trauma, medial meniscus tears in both knees, left shoulder and lower back injuries Court/Case no./date: Confidential; Nov. 15, 2011 Settlement amount: $3.075 million Most helpful experts: Gary McDonald, accident reconstructionist, Grand Rapids; Michael H. Thompson, economist, Chicago; Robert Ancell, vocational rehabilitation, Southfield Attorneys for plaintiff: Walid Y. Fakhoury, Andrew S. Khurana, Naim G. Younan #11 Crash leaves man with brain injury, paralysis Deputy says low visibility in snow storm made collision unavoidable $2.75 million In a confidential lawsuit filed in Cass County Probate Court, plaintiff conservator of plaintiff driver sought compensatory damages from defendant transportation company and defendant truck driver following an auto accident. On Feb. 11, 2011, at about midnight, plaintiff driver, 19, was operating a truck owned and uninsured by his girlfriend on a two-lane rural roadway in St. Joseph County during a snow storm. Their 2-year-old son was in the vehicle at time of the collision. The collision took place on first day of employment for defendant truck driver, who was operating a semi-trailer and tractor owned by defendant transportation company. The truck driver, just prior to collision, was backing the trailer and tractor across the roadway into her home s front yard so that truck nose would be facing out ready for next day s run. She placed the trailer perpendicular across roadway as plaintiff approached within the 50 mph speed limit. Tractor headlights were turned at a 90-degree angle during this maneuver so that the tractor headlights faced plaintiff as he approached the scene. Plaintiff was unable to avoid the collision. The front of the truck submarined under the trailer, demolishing the passenger compartment. Plaintiff swerved the truck so that he took the brunt of the impact, sparing his girlfriend who was in the front passenger seat and his son who was in his mother s lap at the time of the crash. The girlfriend and son escaped serious injury. Plaintiff, 10 months post-collision, is in a full-care nursing facility, and is in a minimally conscious state upgraded recently from persistent vegetative state. He is a quadriplegic and can follow commands by giving thumbs up/down. An advanced computer program allows him to select commands from a computer screen by staring at a screen icon. Though he may improve, it was asserted that it is a certainty he will have severe and permanent cognitive and mobility impairments, and may require attendant care for the rest of his life. Although his girlfriend s truck was uninsured, plaintiff nonetheless qualified for no-fault benefits because he lived with his insured grandmother at the time of the collision. The investigating deputy sheriff opined in his report that plaintiff could not see the trailer across the roadway in the low visibility caused by the snow storm until it was too late to stop. He further opined that plaintiff was blinded by the tractor s headlights which were facing him; there were no flagmen used to warn oncoming traffic; and there were no warning devices such as flares used. The matter settled for $2.75 million. Type of action: Auto negligence Types of injuries: Permanent severe traumatic brain injury, quadriplegia Court/Case no./date: Cass County Probate Court; confidential; Dec. 19, 2011 Tried before: Mediation Name of mediator: Paul Monicatti Name of judge: Susan L. Dobrich Settlement amount: $2.75 million Most helpful expert: David J. Shepardson, accident reconstruction, Grand Rapids Attorneys for plaintiff: Michael L. Pitt, Robert W. Palmer PITT PALMER #12 Appraisals, good faith offers in condemnation action are questioned Wrong measurements, business loss from road work are claimed $2.72 million In two condemnation/eminent domain lawsuits filed in Oakland County Circuit Court, defendants RCU Independence, Inc. and Sentry, Inc. sought compensation from plaintiff city of Troy for loss of business and diminished value of overall operations as a result of incorrect appraisal. (Note: Under the state s eminent domain statute, the procedure calls for the government or municipality to file a lawsuit if the parties cannot agree on an offer of at least a property s appraised value. In this case, the city is the plaintiff, even though the defendants are seeking compensation.) Business entities RCU Independence, Inc. and Sentry, Inc. owned and operated two Pro Car Wash full-service auto-wash facilities, each located on opposite sides of Rochester Road in Troy. When the city announced it would be reconstructing and expanding the road resulting in frontage to be removed from both car washes the city initially made combined good faith written offers for both properties for $153,000, which defendants did not accept. Defendants contended that, as a result of the road reconstruction, the businesses would suffer loss of available stacking for cars exiting the car wash to be dried, causing the car wash line to shut down frequently, resulting in a loss of business as well as a diminished value of the overall operations. The highest offers were then adjusted to $695,000 for RCU Independence and $760,000 for Sentry, which defendants also did not accept. The expert appraiser retained by the city initially found little damage as a result of the taking, claiming that other car washes in the city operated in an economically satisfactory manner with the stacking area similar to the stacking area that defendants car washes would be left with after the taking. However, defendants asserted that the compared washes did not have internal areas for stacking, while the defendants washes did, and that both facilities would have to be reconstructed to keep the internal stacking areas. Defendants also contended that the city expert s distance calculations were incorrect, upon which plaintiff agreed after recalculation. As a result, the city and its expert acknowledged that both car washes would need to be rebuilt or significantly modified. At mediation, the Oakland County Mediation Panels issued awards of $1.25 million to RCU Independence and $1.2 million to Sentry, which both parties accepted. The final settlement was a combined $2.72 million. Type of action: Condemnation/eminent domain Types of injuries: Loss of business, diminished value of overall operations Names of cases: City of Troy v. RCU Independence, Inc., et al.; City of Troy v. Sentry, Inc., et al. Court/Case nos./date: Oakland County Circuit Court; CC, CC; April 5, 2011 Tried before: Mediation Names of judges: Nanci J. Grant (RCU Independence), Leo Bowman (Sentry) Name of mediator: Oakland County Circuit Court Mediation Panel Names of facilitators: Boris Yakima, J. Timothy Patterson Demand: $4.013 million (combined) ACKERMAN DYNKOWSKI It s time again for our annual salute to Leaders in the Law, honoring 25 leaders in the state s legal community and the 2012 Lawyer of the Year. Nominations due Jan. 13. March 15, 2012 The Detroit Marriott Troy Download the nominations form at milawyersweekly.com/events
15 Cite 26 Mich.L.W. 247 January 9, 2012 Michigan Lawyers Weekly B15 Highest offers: $695,000 (RCU Independence), $760,000 (Sentry) Mediation awards: $1.25 million (RCU Independence), $1.2 million (Sentry) Final settlement: $2.72 million (combined) Special damages: Loss of stacking Most helpful experts: Andrew B. Chamberlain, real estate appraisal, Berkley; William Stein, CPA, Farmington Hills; David Burgoyne, real estate appraisal, Ann Arbor Attorneys for plaintiff: Allan T. Motzny, Lori Bluhm Attorneys for defendant: Alan T. Ackerman, Darius W. Dynkowski Keys to winning: Familiarity with car wash operations, discovering significant errors in city s appraisal reports #13 Plaintiff says standard of care was breached before and after birth It s argued that C-section delivery should have been ordered sooner MCKEEN DAWES $2.6 million In a confidential lawsuit, plaintiff next friend of plaintiff minor sought compensatory damages from defendants physicians and medical centers for birth traumarelated injuries. Plaintiff next friend presented to labor and delivery with complaints of painful contractions and possible rupture of membranes. Initial electronic fetal monitor strips showed a nonreactive tracing. Based on the nonreactive strip, the mother was admitted to the hospital. Initial impression upon admission included a nonreactive non-stress test (NST) coupled with a complaint of decreased fetal movement. Plaintiff asserted that, given these findings, the standard of care required close monitoring and further evaluation of fetal well-being, and that the very first note indicates a biophysical profile (BPP) may be needed if the tracings continue to be nonreactive. Given that the mother was over 38 weeks gestation, there was no risk of complications of prematurity if the baby needed to be delivered via C-section. Plaintiff s obstetric nursing experts testified that the nurses assigned to care for the mother were negligent in failing to, starting at 2:50 p.m., request the obstetrician come to the bedside and evaluate a tracing that was suggestive of fetal intolerance to the intrauterine environment. When the obstetrician was at the bedside at 5:20 p.m., plaintiff contended the standard of care required nursing staff to advocate for a change in the plan of care for the patient, and, if their request was rebuffed by the obstetrician, the standard of care required that the nursing staff invoke the chain of command to insure that the safety of mother and the unborn child were adequately addressed. In addition, it was contended, the nursing staff should have taken steps to insure NICU staff attended the delivery. Upon delivery, the child was noted to be neurologically depressed as evidenced by his APGAR scores of 4 at one minute and 5 at five minutes. He was transferred to the NICU due to respiratory distress. Given the fetal monitor strips the standard of care required that the obstetrician request that staff from the NICU attend the delivery and immediately attend to plaintiff minor. As it happened, no one from the NICU arrived until five minutes of life. At the age of 13, it was asserted, plaintiff minor s cognitive function is equivalent to that of a 2-year-old child. The child will never work, never live independently, and will require round-the-clock supervision and care for the remainder of his life. For more information on nominations or to request a nominations form, contact Gary Gosselin at or For event and sponsorship info, contact Charlene Boccaccio at or MICHIGAN LAWYERS WEEKLY Plaintiff contended that an obstetrician and obstetric nurses failed to properly manage labor and failed to expedite delivery via C-section due to increasingly abnormal electronic fetal monitor tracings. As a result of that negligence, plaintiff minor sustained an acute hypoxicischemic injury to his brain prior to delivery. In addition, it was asserted, additional health care providers, neonatal nurse practitioners, and neonatologists failed to timely and properly treat hypotension and seizures the child had following delivery, which resulted in additional injury to his brain. This resulted in cerebral palsy and global developmental delay. The matter settled for $2.6 million. Types of actions: Birth trauma, medical malpractice Types of injuries: Hypoxic-ischemic encephalopathy, cerebral palsy, developmental delay Court/Case no./date: Confidential; Dec. 12, 2011 Settlement amount: $2.6 million Attorneys for plaintiff: Brian J. McKeen, Terry A. Dawes #14 Owners: Road project closed station for good Reconstruction required removal of pumps and convenience store $2.35 million In a condemnation/eminent domain lawsuit filed in Oakland County Circuit Court, defendants Safeway Acquisition Co.; Safeway Oil Co.; Abbey Enterprises, Inc.; and Alsaham, Inc., d.b.a. Fred s Auto Service Center, sought compensation from plaintiff City of Troy for partial taking of property for road widening and resultant destruction of a gas station. (Note: Under the state s eminent domain statute, the procedure calls for the government or municipality to file a lawsuit if the parties cannot agree on an offer of at least a property s appraised value. In this case, the city is the plaintiff, even though the defendants are seeking compensation.) The city filed a condemnation action to acquire necessary right-of-way for the widening of both Rochester and Wattles roads. The taking, although only a partial one, removed property from the subject property from both Rochester and Wattles. As a result of the partial taking, defendants gas station usage, which had existed for more than 30 years, was completely destroyed. The taking resulted in loss of canopies, pump islands, and the destruction of the convenience store located at the site. The city of Troy offered $940,000 for the partial taking, recognizing significant destruction to the value of the property as a gas station location. Defendant-landowner, with the assistance of a business expert, was able to demonstrate the losses to this successful gas station location were far in excess of those estimated by the city. As a result of the taking, the owner of the property elected to rebuild on the smaller site, resulting in a far less efficient and profitable service station, while maintaining contractual requirements for continued use at the site. The reconstruction required the removal and replacement of double-walled gas tanks, pumps, pump islands, canopies and the convenience store located on the site. The business expert s analysis of use of losses resulting from contractual fuel delivery obligations, as well as the real estate expert s identification of comparable locations, demonstrated to the case evaluation panel that the damages were, in fact, far in excess of those estimated by the city. The matter settled for $2.35 million. Type of action: Condemnation/eminent domain Types of injuries: Partial taking for road widening, destruction of gas station Name of case: City of Troy v. Safeway Acquisition Co., et al. Court/Case no./date: Oakland County Circuit Court; CC; case evaluation held April 13, 2011; consent judgment entered June 8, 2011 Name of judge: Denise Langford Morris ACKERMAN Name of mediator: Oakland County Circuit Court Case Evaluation Panel Demand: $3.2 million Highest offer: $949,000 Mediation settlement: $2.35 million Most helpful expert: William Stein, CPA, Farmington Hills Attorney(s) for plaintiff: Withheld Attorney for defendant: Alan T. Ackerman Key to winning: Being able to identify that a partial taking for a road widening would destroy the gas station, which had existed at the location in question for more than 30 years #15 Ex-shareholder asserts oppression, breach of contract in lawsuit Third-party witnesses say lifetime employment was part of the deal MANTESE SAXE $2.3 million In a lawsuit filed in Wayne County Circuit Court, plaintiff Timothy Sweeney sought damages from defendants Vince Mucci, Frank Mucci, Mucci Food Products, Ltd. and Mucci Immobiliare LLC, asserting shareholder oppression, breach of fiduciary duty, and breach of oral employment agreement. Defendants filed a counter-complaint against plaintiff also seeking damages. Sweeney was a 20 percent owner and vice president of Mucci Food Products, Ltd., a company that manufactures and sells pasta products, and a 20 percent owner of Molise Ltd., L.C., a real estate investment company. Sweeney, together with the controlling shareholders and co-owners, brothers Vince and Frank Mucci, opened Mucci Food, and grew the company into a very successful business. Five years later, plaintiff and the other co-owners formed Molise to invest in real estate for their future benefit. Plaintiff asserted mismanagement and oppression by the defendant controlling shareholders, resulting in, among other things, lost profits and damages to plaintiff. He also contended having an oral agreement with the other co-owners, pursuant to which all three would have lifetime employment at Mucci Food. After many years of the three owners working at Mucci Food, plaintiff asserted that the defendant controlling shareholder ousted him, and terminated his wages and benefits. Defendants contended that there was no oral agreement for lifetime employment, and denied that their actions constituted shareholder oppression. It also was asserted that defendants had the right to terminate plaintiff s employment. The parties engaged in substantial written and oral discovery, with plaintiff s counsel taking thorough depositions of the defendants and third-party witnesses. Among other things, plaintiff s counsel effectively obtained admissions from defendants that plaintiff was entitled to a buyout, and obtained statements from thirdparty witnesses supporting the promise of lifetime employment. The parties also retained competing experts regarding the valuation of the companies. The matter settled for $2.3 million, with plaintiff receiving a buyout of approximately $1.3 million, plus an additional $1 million in damages. Types of actions: Shareholder oppression, breach of fiduciary duty, breach of contract Types of injuries: Loss of stock value, wages and profits Name of case: Sweeney v. Mucci Food Products, Ltd., et al. Court/Case no./date: Wayne County Circuit Court; CK; June 28, 2011 Name of judge: Wendy M. Baxter Settlement amount: $2.3 million Most helpful experts: Barry Grant, financial forensics, Southfield; Philip Gaglio, business valuation, Southfield; Guy Hostetler, vocational rehabilitation, Southfield Attorneys for plaintiff: Gerard V. Mantese, Brian M. Saxe Continued on page B16
16 B16 Michigan Lawyers Weekly January 9, 2012 Cite 26 Mich.L.W. 248 LARGEST SETTLEMENTS Continued from page 15 #16 (tie) Plaintiff asserts wrong procedure took place for abdominal pain Woman suffers pancreatitis, is put near death after a duct ruptures $2.25 million In a confidential lawsuit, plaintiff patient sought compensatory damages from defendant CRNA, defendant gasteroenterologist and defendant hospital for pancreatic duct injuries. The patient, a 38-year-old mother of two and sole breadwinner, had been experiencing diffuse abdominal pain. The gastroenterologist suspected sphincter of Oddi dysfunction (the sphincter of Oddi serves as one of the valves that controls the release of caustic pancreatic enzymes into a person s intestines). The gastroenterologist recommended an endoscopic retrograde pantography (ERCP) with manometry, a procedure where the pancreas is injected with dye, and pressure measurements are taken of the sphincter of Oddi. However, that procedure was never MCKEEN GARVEY performed; instead, the gasteroenterologist performed an interventional ERCP, where he cut the pancreatic sphincter (another valve adjacent to the sphincter of Oddi) and lodged a stent into the patient s pancreatic duct. Plaintiff asserted that, prior to the procedure, there was no evidence that a surgical time-out a protocol recommended by the World Health Organization (WHO) and other regulatory bodies to prevent sentinel events, such as incorrect procedures and wrong-site surgeries was performed. It was further contended that, despite the fact that the patient consented to a ERCP with manometry only, a time-out was never performed, allowing the wrong procedure to take place. The defendant CRNA, in her deposition, testified that no one at defendant hospital paid attention to the WHO time-out protocols. The procedure resulted in injury to the patient s pancreatic duct. The placement of a pig tail stent in the pancreatic duct resulted in the rupture of the pancreatic duct (the channel that delivers pancreatic enzymes to the digestive system). The rupture of this duct resulted in the highly caustic enzymes being spilled into the patient s abdomen. All of the damage to the patient s pancreatic duct was photographed interoperatively, and sent to a radiologist for review. Radiology, however, did not spot the gross extravasation of contrast dye from the patient s pancreas, and dictated a normal report. The patient, in the ICU, began to suffer from a severe necrotizing pancreatitis. Subsequently, another radiologist, a general surgery consultant, and a hospitalist failed to spot the iatrogenic injury. More importantly, it was asserted, there was no communication between different members of the treatment team, which likely would have prevented the two weeks of necrotizing pancreatitis and near death of the patient. When the patient was near death, her husband sent her CT scans to his brother-in-law, a Kentucky radiologist. Upon review, the brother-in-law immediately contacted surgeons at defendant hospital and described the findings over the phone. After nearly two weeks of delay, repair surgery was performed within 24 hours. The patient subsequently spent nearly six months in the hospital, and incurred more than $1 million in medical expenses. She spent nearly two years receiving all nutrition by IV. Defense contended that all of the damages occurred as a normal risk and result of an ERCP. The matter settled for $2.25 million. Types of injuries: Iatrogenic injury to pancreatic duct during endoscopic retrograde pantography (ERCP), followed by failure to diagnose injury based upon radiological evidence and clinical symptoms, resulting in severe sepsis and permanent disability Court/Case no./date: Confidential; Oct. 20, 2011 Settlement amount: $2.25 million Attorneys for plaintiff: Brian J. McKeen, Robert F. Garvey, Phillip B. Toutant #16 (tie) Outdoor fruit market disputes land taking Airport says operations, pattern of traffic wouldn t be hurt as a result $2.25 million In a condemnation/eminent domain lawsuit filed in Berrien County Circuit Court, defendant Benton Harbor Fruit Market, Inc. sought compensation from plaintiff Southwest Michigan Regional Airport Authority for taking of land and business interruption damages. (Note: Under the state s eminent COHEN domain statute, the procedure calls for the government or municipality to file a lawsuit if the parties cannot agree on a property matter. In this case, the airport authority is the plaintiff, even though the defendants are seeking compensation.) The airport authority initially offered the outdoor fruit market $1.412 million for the taking of a 5- acre strip of land. However, the estimate was then reduced to LONG $72,000 based on the airport s second appraisal and an engineering report concluding that the taking would have no impact on the fruit market s traffic patterns or operations. The fruit market contended that the taking, while seemingly small (it was undisputed that the taken strip of land itself was worth less than $100,000), would impact the business operations and traffic patterns on the site. After comprehensive discovery, including depositions of the parties management personnel and numerous valuation and engineering experts, the parties settled for just compensation in the amount of $2.25 million in favor of the defendant. Costs, interest and attorney fees also were granted. Type of action: Condemnation/eminent domain Types of injuries: Taking of land, business interruption damages Name of case: Southwest Michigan Regional Airport Authority v. Benton Harbor Fruit Market, Inc. Court/Case no./date: Berrien County Circuit Court; CC-B; March 21, 2011 Name of judge: Alfred M. Butzbaugh Settlement amount: $2.25 million Special damages: Costs, interest, attorney fees Most helpful experts: David E. Burgoyne, real estate appraisal, Ann Arbor; O. Fredrich Pertner, financial consultant, Northville; Martin Parker, professional engineer, Taylor; Darrell Hinman, development expert, Benton Harbor Attorney(s) for plaintiff: Withheld Attorneys for defendant: H. Adam Cohen, Jason C. Long #17 (tie) Spinal cord injury signs not addressed properly Man s lower extremities, bowel and bladder functions damaged $2.1 million In a confidential medical-malpractice and auto-negligence lawsuit, plaintiff male sought compensatory damages from defendant driver, defendant surgeon and defendant hospital for T-4 paraplegia following an auto accident. Following a May 22, 2007, auto accident, plaintiff, a 26-year-old single male, was rushed to a nearby SICKELS hospital s emergency department. Imaging studies revealed that he had sustained a traumatic tear of his proximal descending aorta. A cardio-thoracic surgeon was summoned and immediately took plaintiff to the operating room to perform a repair of the torn aorta. He initially attempted to implant an aortic graft without the benefit of a left heart bypass, an acceptable method if the cross-clamp time on the aorta is less than 30 minutes. If the aorta is clamped longer than 30 minutes, there is risk of ischemia to the spinal cord, and bypass circulation must be initiated. The surgeon encountered difficulty with sizing an appropriate graft for the patient s aorta. After implantation, the graft was felt to be too big for the diameter of the patient s aorta, so the surgeon decided to remove it and implant a second graft. Patient was not placed on bypass circulation until 53 minutes into the procedure. Even after bypass circulation was initiated, the surgeon did not maintain adequate profusion pressures to the spinal and lower extremities throughout the remainder of the procedure. Following surgery, patient showed signs of an ischemic spinal cord injury at T-4, but appropriate measures such as placement of a spinal catheter were not taken to lessen spinal cord pressures. The patient was eventually transferred to an academic medical facility where his spinal cord injury was addressed. However, by that time, nothing could be done to restore neurological function of the patient s lower extremities, bowel or bladder. A settlement was quickly reached in the third-party auto case. In the malpractice action, defendant surgeon was insured by an off-shore carrier that became insolvent and developed administrative issues during the proceedings. All of the settlement funds in the malpractice action were contributed by the hospital. Settlement discussions took into consideration plaintiff s non-economic damages and future wage loss only in as much as all medical expenses were being paid for by the first-party auto-insurance carrier. The settlement total was $2.1 million. Types of actions: Medical malpractice, auto negligence Type of injury: T-4 paraplegia Court/Case no./date: Confidential; March 18, 2011 Settlement amount: $2.1 million Most helpful experts: Cardio-thoracic and vascular surgeons from Johns Hopkins, Baltimore, and Loyola University Medical Center, Chicago Attorneys for plaintiff: Robert B. Sickels (medical malpractice); Bryan J. Waldman (auto negligence) Key to winning: Figuring out the medical negligence and causation with the assistance of highly qualified experts #17 (tie) Woman develops brain injuries from accident Encephalomalacia is disclosed in MRI testing despite good recovery $2.1 million In a confidential lawsuit, plaintiff 51-year-old woman sought compensatory damages from defendant corporation for serious brain injuries incurred when her vehicle was struck broadside by a commercial truck that ran a stop sign. Plaintiff s injuries resulted in a brief period of coma and extensive early cognitive and functional SINAS deficits, requiring hospitalization and extensive rehabilitation institutionalization for approximately six weeks. At the time of the accident, Plaintiff was on Social Security Disability for breast cancer-related issues. Although Plaintiff made a fairly good recovery from her accident injuries, she continued to have traumatic brain injury (TBI) residual problems, including cognitive deficits; memory impairment; visual deficits; concentration difficulties; neurofatigue; adynamia; abulia; apathy; loss of libido; and various musculoskeletal problems. Follow-up MRI testing disclosed encephalomalacia, which was consistent with several of the TBI-related residuals. In asserting damages, plaintiff used a thorough presentation, including complete documentation from plaintiff s treatment team; professionally prepared broadcast quality videotape documentary, fully documenting plaintiff s damages from the time she was in the hospital until
17 Cite 26 Mich.L.W. 249 January 9, 2012 Michigan Lawyers Weekly B17 shortly before settlement; documenting emotional aspects of plaintiff s brain injury (particularly the adynamia and abulia), and correlating those injuries to the frontal lobe encephalomalacia that was confirmed on MRI. Defendant contended that there was comparative fault on the part of the plaintiff. The matter settled for $2.1 million. Type of action: Motor-vehicle collision Type of injuries: Serious brain injuries Court/Case no./date: Confidential; Jan. 21, 2011 Mediation settlement: $2.1 million Attorney for plaintiff: George T. Sinas #18 (tie) Doctor, mother of twins dispute delivery errors It s argued C-section would have prevented developmental delays $2.05 million In a confidential lawsuit, plaintiff mother sought compensatory damages from defendants delivering physician and hospital for birth trauma-related injuries to one of her twins. Plaintiff, pregnant with twins, began prenatal care late at approximately 25 weeks. All ultrasound testing showed a healthy pregnancy. She presented at approximately 38 weeks to the hospital with contractions. She testified that she was not given the option of a cesarean delivery, although the admission note stated that she chose to proceed with a vaginal delivery. During the labor, the continuous electronic fetal monitoring which plaintiff asserted that there is difficulty in monitoring twins in such a way was not working part of the time. Plaintiff was not informed of this, nor was she given the option of a C-section. When plaintiff was completely dilated, she was taken to the operating room for a vaginal delivery; it was routine at this hospital to perform twin deliveries there. She was given a C-section dose of anesthesia rather than the dose of anesthesia appropriate for a vaginal delivery. REITER WALSH SABATINI PLASTIRAS This allegedly caused maternal hypotension (low blood pressure), non-reassuring fetal heart tones, numb from the belly button down, and delay in her delivery. Plaintiff was not informed of the anesthesia error. Defendants sent her back to the labor floor to allow the anesthesia to wear off. One hour and 40 minutes later Plaintiff was taken back to the OR for vaginal delivery. Both twins were healthy at the time. Twin A was born a few minutes later with mild metabolic acidosis, and Twin B s membranes ruptured 12 minutes after delivery of Twin A, and a cord prolapse was diagnosed. An emergency C-section was ultimately called in the OR and performed in 18 minutes. The typed operative report, which would explain the events of the prolapse, could not be located. Currently, Twin A is normal, but Twin B, plaintiff-minor, has mild developmental delays including speech deficits. He can walk and run and, to date, has had normal head imaging, and has no cerebral palsy. Plaintiff asserted that if the C-section had been performed faster than 18 minutes, plaintiff-minor would be fine today. It was further contended that normal head imaging did not rule out brain injury. Defendants position was that the 30-minute rule applied and that the C-section for Twin B was performed more quickly than the 30 minutes. Moreover, it was contended, the anesthesia error was irrelevant, as it did not cause any problems for either twin. In addition, it was asserted that plaintiff-minor did not meet the American College of Obstetrics and Gynecology criteria for a hypoxic ischemic injury. Finally, defendants asserted that plaintiff-minor would live a normal independent life. The matter settled for $2.05 million. Types of actions: Birth trauma, medical malpractice Types of injuries: Mild developmental delays, speech deficits Court/Case no./date: Confidential; Oct. 1, 2011 Tried before: Mediation Settlement amount: $2.05 million Most helpful expert: InFocus Research Group, Shelby Township Attorneys for plaintiff: Jesse M. Reiter, Rebecca S. Walsh, Juliana B. Sabatini Plastiras #18 (tie) Gas leak explosion kills worker, injures another Defense claims insufficient evidence on who opened bypass pipe valves $2.05 million In a confidential lawsuit, the plaintiffs, two employees for an outside contractor, sought compensatory damages from defendant industrial complex on claims of wrongful death and injuries following a gas explosion. A contractor was performing maintenance work on a pipeline at the industrial complex, which was to be purged of gas. It was asserted that employees of the defendant opened valves to a bypass pipe leading from a live line, which allowed gas to enter the pipeline when the work was ongoing. The resulting gas leak caused an explosion, and the pipe fell 25 feet to the ground, fatally injuring one plaintiff worker and causing physical injuries to the other. Plaintiffs contended that the leak was in violation of state and federal regulations. Defendant claimed there was insufficient evidence to determine who opened the bypass or where the ignition source was located. There was no claim of active negligence of the injured workers, but non-party fault claims were made. The matter settled for $2.05 million, per the facilitation award. Types of action: General negligence, worksite explosion Types of injuries: Wrongful death, personal injury Court/Case no./date: Confidential; May 6, 2011 Tried before: Facilitation Facilitation award: $2.05 million Attorney for plaintiff: Robert H. Darling #19 Man on motorcycle hit by car, loses right leg Driver of oncoming car didn t yield to right-of-way, plaintiff contends DARLING RUBY $2.048 million In a confidential automobile/motorcycle negligence lawsuit, plaintiff motorcycle rider sought compensatory damages from defendant driver and defendant insurance company (for whom defendant driver worked) for injuries sustained in an accident. Plaintiff, 41, an automobile detailer, was operating his motorcycle within the speed limit on a Northern Michigan highway, heading northbound. Defendant driver was traveling southbound, and failed to yield the right-of-way while making a left turn in the path of the plaintiff, and the collision resulted in significant trauma to plaintiff s right leg. A driver who witnessed the accident rushed to plaintiff s aid and used his belt as a tourniquet, and the plaintiff was airlifted to a nearby trauma center. He underwent several orthopedic surgeries in an attempt to save the leg. After several weeks, it was determined that the vascular and neurological structures could not be revitalized, and the right leg was amputated above the knee. The case was settled for $2.048 million subsequent to the lawsuit s filing but prior to its answer having been filed. Type of action: Automobile/motorcycle negligence Type of injuries: Above-knee amputation of right leg Court/Case no./date: Confidential; March 16, 2011 Settlement amount: $2.048 million Attorney for plaintiff: Richard L. Ruby Key to winning: Extensive investigation inclusive of multiple witness interviews #20 Anesthesia team blamed for hypoxic brain injury Defendants don t agree on which records were made during surgery $1.83 million In a confidential medical-malpractice lawsuit, plaintiff female patient sought compensatory damages from defendants, an anesthesia team, after suffering a hypoxic brain injury. Plaintiff asserted that, during the course of a knee surgery, defendants oversedated plaintiff with anesthesia, failed to monitor her, failed to respond to her dropping vital signs, and ultimately failed to protect her airway. While on the operating room table, the plaintiff arrested and suffered a hypoxic brain injury. At the time of surgery, the plaintiff was 48 years of age and employed at a steel plant earning approximately $55,000 a year. Although the plaintiff recovered well from her cardiorespiratory arrest, she was still left with some neurologic deficits. CUNNINGHAM CURTIS It also was asserted that the anesthesiologist was not board certified, and the certified registered nurse anesthetist (CRNA) was on probation for using Fentanyl for personal use. After the plaintiff suffered her cardiopulmonary arrest in the operating room, the CRNA wrote a second anesthesia record, and, when comparing the two anesthesia records that existed, they were different in many respects. During discovery, it was disclosed that the CRNA and anesthesiologist sat down together after the plaintiff was in the ICU and recreated the second anesthesia record. All of the experts deposed on both sides, including all of the nurses involved, readily admitted that they had never seen two different anesthesia records prepared for the same surgery. None of the defendants could provide any explanation as to why the second anesthesia record was prepared. Plaintiff asserted that not only should there not have been two anesthesia records surrounding the same surgery, but the CRNA claimed that one of them was altered in the comments section of the record. In addition, it was contended, not only was the anesthesia record altered to change the timing of when certain critical events occurred, but neither the anesthesiologist nor the CRNA could agree as to which anesthesia record was the one that was prepared contemporaneous with the actual care being given. Further, plaintiff contended that, based upon the numerous violations in the standard of care that occurred prior to the start of the surgery, plaintiff became overly sedated, causing her airway to obstruct, which in turn caused her to develop significant hypotension and bradycardia. In addition, based upon delays that occurred in recognition and timely intervention, plaintiff went on to develop respiratory and cardiac arrest ultimately causing a hypoxic injury to her brain. The matter settled for $1.83 million. Type of injuries: Hypoxic brain injury Court/Case no./date: Confidential; Nov. 2, 2011 Continued on page B18
18 B18 Michigan Lawyers Weekly January 9, 2012 Cite 26 Mich.L.W. 250 LARGEST SETTLEMENTS Continued from page 17 Settlement amount: $1.83 million Attorneys for plaintiff: Michael J. Cunningham, Matthew G. Curtis Keys to winning: Uncovering and discovering discrepancy between the two anesthesia records, and the inconsistencies that counsel was able to obtain when deposing all of the defendants and witnesses #21 Child born with birth defects after mom is in motor-vehicle accident Injuries would have been avoided with a timely delivery, experts say $1.8 million In a confidential medical-malpractice/birth-trauma lawsuit, plaintiff conservator, on behalf of plaintiff minor, sought compensatory damages from defendant hospital on claims of negligence in delaying recognition of a placental abruption and addressing profound hypotension and anemia following delivery. On July 17, 2001, the minor s mother was involved in a motor-vehicle accident. According to records, the EMS unit called the defendant hospital indicating that they were en route to with a pregnant female with bilateral pelvic and leg pain. She denied loss of consciousness, and her vital signs were within normal limits. An IV line was established and fluids administered as a precautionary measure while en route to the hospital. MCKEEN DAWES At the hospital, it was noted that she had a contusion on her right lower quadrant, as well as tenderness and pain in her femurs bilaterally. The only other indication of trauma was a small laceration to her forehead, which had no active bleeding. It was asserted that cervical spine and femur X-rays taken thereafter reflected pelvic fractures that would preclude the occurrence of a vaginal delivery, and that a Caesarean section delivery would be required. Plaintiff s obstetrical experts asserted that obstetrical staff who assessed plaintiff minor s mother in the emergency department were negligent in failing to bring an electronic fetal monitor to the emergency department until 30 minutes later; failing to immediately perform an assessment of fetal well-being; and failing to immediately recognize the presence of an abruption and the need for a stat C-section. Plaintiff minor was born with severe cerebral palsy and mental retardation, and today has spastic quadriplegia and a seizure disorder. She requires around-the-clock supervision, is in a wheelchair, requires a feeding tube, has been in and out of physical and occupational therapy, and is fully dependent on others for all of her basic needs. Plaintiff asserted that a motor vehicle accident is a major risk factor for placental abruption, and that the standard of care requires the baby be promptly evaluated. Also, pediatric neuroradiology expert opined that the pattern of injury seen on plaintiff minor s neuroimaging studies is consistent with intrapartum hypoxic-ischemic injury. In addition, plaintiff s pediatric neurology expert testified that timely delivery of plaintiff minor would have spared her devastating neurological injuries. Defendant contended that the standard of care requires the baby only be evaluated after the mom has been stabilized. Plaintiff, however, asserted that, because the minor s mother was stable, evaluation of her unborn child should have been undertaken concurrently with the examination of minor s mother. The matter settled for $1.8 million. Types of actions: Birth trauma, medical malpractice Types of injuries: Hypoxic-ischemic encephalopathy, cerebral palsy, developmental delay Court/Case no./date: Confidential; June 16, 2011 Settlement amount: $1.8 million Attorneys for plaintiff: Brian J. McKeen, Terry A. Dawes #22 (tie) Estate asserts surgeons handling of vascular procedure killed patient It s contended that one doctor had interpreted symptoms as urological $1.55 million In a wrongful-death and medicalmalpractice lawsuit filed in Marquette County Circuit Court, plaintiff Frances Colucci-Hill, as personal representative for the Estate of Robert Hill, sought compensatory damages from Dr. Joel A. Johnson, Dr. James H. Mering III and Marquette General Hospital, Inc., on claims of a delay in performing vascular surgery, resulting in death from severe hypotension. MCKEEN Robert Hill, 44, was participating in the UP Golf Tournament on Aug. 12, 2005, when he suddenly collapsed. He was rushed to St. Francis Hospital in Escanaba. There, a radiologist correctly diagnosed his right common iliac artery tear, and the emergency department physician had him transferred to Marquette General Hospital, the only Upper Peninsula hospital with a vascular surgery service. Prior to Hill s arrival, a note was made in the Marquette General chart stating that the OR would be prepared and ready to perform surgery immediately upon Hill s arrival. He was seen at Marquette General by Joel Johnson, a vascular surgeon. It was asserted that, instead of ordering a radiological consultation, calling the radiologist in Escanaba, or simply deferring to the diagnosis of the staff at St. Francis, Johnson elected to review the CT scan from St. Francis himself. After looking at the films, it was contended that he erroneously suspected Hill was suffering from a urological issue. Thus, he consulted Mering, a urologist. It was asserted that, between the two of them, the decision was made that Hill should not be taken to surgery, but kept under observation instead. Hill was put on Mering s service. The next morning, Mering took the CT films from St. Francis down to the radiology suite for a curbside consult, an informal, reading of an imaging study that the consulting radiologist does not dictate and add to the patient s chart. Though the curbside consult was not revealed to plaintiff s counsel until opening statements, Mering was informed by the radiologist that Hill did not have a urological problem, but rather a vascular problem. It was contended that Mering chose not to make a note of this consultation anywhere in the patient s chart, and did not obtain further vascular surgery consultation. On the afternoon of Aug. 13, Hill s condition suddenly worsened. A general surgery consultation was obtained, and the decision was made to take him to surgery for what was determined to be a vascular bleed. When surgery was commenced, Hill was described as in extremis, or near death. Though the surgeons did identify and repair Hill s right common iliac artery tear, they chose to ligate his inferior vena cava, which allows for blood return from the lower extremities. Hill became severely hypotensive and died when the physicians removed the clamp from his aorta, which sends blood down to the lower extremities. Plaintiff argued that the delay in performing decedent s surgery was a cause of his death, because surgery could have been performed when he was stable, and likely to survive the operation. Plaintiff also argued that the ligation of his vena cava was a cause of his death. Defendants argued that, contrary to autopsy findings, genetic testing, and clinical criteria, plaintiff s decedent suffered from a rare genetic disease known as Ehlers- Danlos syndrome, type IV; it is associated with exceedingly friable arteries, resulting in arterial ruptures that happen frequently and unexpectedly, and a life expectancy of 44 years. Plaintiff countered that, consistent with the autopsy diagnosis, the decedent suffered from a condition known as fibromuscular dysplasia, which can cause arterial rupture, but is not systemic; arteries are easily repaired; and patients who have it have a normal life expectancy. The case was argued to a Marquette County jury until the parties agreed to a $1.55 million settlement. Types of actions: Wrongful death, medical malpractice Types of injuries: Delay in performing vascular surgery, resulting in death from severe hypotension Name of case: Estate of Hill v. Marquette General Hospital, et al. Court/Case no./date: Marquette County Circuit Court; NH; May 26, 2011 (until settlement was reached) Name of judge: Thomas L. Solka Settlement amount: $1.55 million Attorneys for plaintiff: Brian J. McKeen, Phillip B. Toutant Attorneys for defendant: Ralph F. Valitutti Jr., Daniel R. Corbet, Gregory A. Elzinga, Jonathan C. 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19 Cite 26 Mich.L.W. 251 January 9, 2012 Michigan Lawyers Weekly B19 #22 (tie) Spine fusion is argued to have caused patient s permanent damage Instrumentation was in its proper place in surgery, defendants say $1.55 million In a confidential medical-malpractice lawsuit, plaintiff patient sought compensatory damages from defendant medical professionals for claims of an improper neurosurgical procedure, which left plaintiff with severe and permanently disabling head and neck pain. Patient was diagnosed with an unstable spine, which was contended to be mistakenly diagnosed. It also was asserted that the ensuing fusion and instrumentation was improperly done and caused permanent damage to nerves in the back of his head and cervical spine. He suffers no paralysis, but does have relentless pain that has left him unable to work. In addition, plaintiff contended that his condition preoperatively was such that no surgical intervention was needed, and that with time and conservative treatment, he would have been fine. Defendants contended plaintiff had an unstable cervical spine, which, if not surgically stabilized, could lead to paralysis. It further was maintained that, contrary to the position of plaintiff, the instrumentation was placed in the correct position, and did not cause the pain the plaintiff now experiences. The matter settled for $1.55 million. Type of injuries: Occipital neuralgia Court/Case no./date: Wayne County Circuit Court; confidential; March 11, 2011 Settlement amount: $1.55 million Attorney for plaintiff: Richard L. Groffsky Attorney(s) for defendants: Withheld #23 (tie) Med-mal suit disputes CT angiogram study Parties argue extent of how it was interpreted, damages that followed $1.5 million In a medical-malpractice lawsuit filed in Oakland County Circuit Court, plaintiff female patient sought compensatory damages from defendant medical center on claims of cognitive and physical damages incurred in surgery. After experiencing a sudden onset and severe headache at home, a nurse friend advised plaintiff to set GROFFSKY WEIDENFELLER up an appointment with a neurosurgeon. The neurosurgeon ordered non-emergent CT and MRI testing. Plaintiff presented to the hospital for testing on a Friday morning approximately one week after the event at home. Early the next Monday morning, plaintiff experienced an aneurysmal rupture and rebleeding, and was transported to the hospital. That evening, a neurosurgical clipping procedure was undertaken to repair the aneurysm. Plaintiff went on to suffer from cognitive damages including limited executive function and physical damages in the form of partial one-sided paralysis. Plaintiff filed this cause of action, because of an alleged failure, on the part of the interpreting neuroradiologist, to properly interpret plaintiff s CT angiogram study, which was reported as normal over the weekend. Plaintiff asserted that, had the CTA study been appropriately interpreted, the neurosurgeon would have been contacted and plaintiff s aneurysm could have been either coiled or clipped on the weekend, prior to the rebleeding Monday morning. Defendant contended that, even if the CTA had been read over the weekend to show a small aneurysm, the neurosurgical procedure would likely not have been undertaken on an emergent basis, and plaintiff would still have suffered a rebleed Monday morning. It also was asserted that the Monday morning aneurysmal rupture/rebleeding was not the cause of plaintiff s long-term neurological damages specifically, plaintiff s course in the hospital that morning and afternoon, before any surgical intervention was undertaken, was not consistent with permanent neurologic impairment as a direct result of the bleed. Further, defendant contended that plaintiff s long-term neurological impairment was the result of vasospasm, a well-known and accepted complication that can occur following neurosurgical clipping procedures. The matter settled for $1.5 million. Types of injuries: Cognitive and physical damages Court/Case no./date: Oakland County Circuit Court; confidential; February 2011 Settlement amount: $1.5 million Most helpful expert: Stephen Bloomfield, neurosurgeon, Edison, N.J. Attorney for plaintiff: Scott Weidenfeller Key to winning: Preparation and planning for defendant s deposition #23 (tie) Paraparesis stems from a ruptured aneurysm It s argued patient s spinal artery syndrome was from blood loss $1.5 million In a medical-malpractice lawsuit filed in Saginaw County Circuit Court, plaintiff male patient sought compensatory damages from defendant vascular surgeon, defendant hospital and defendant hospitalist following aneurysm surgery. In an emergency room workup for acute appendicitis, a 7.5 cm abdominal aortic aneurysm was detected in the plaintiff via CT scan. Plaintiff was referred to defendant vascular surgeon, who evaluated the patient four weeks after the appendectomy. Before elective repair of the aneurysm could be undertaken, plaintiff became symptomatic. He complained of severe back and flank pain. A second CT documented expansion of the aneurysm to 7.8 cm, with a hypo-attenuating crescent sign of impending rupture. Plaintiff was transported via helicopter to defendant hospital, where he was admitted to the services of defendant hospitalist on a Thursday evening. Defendant vascular surgeon evaluated plaintiff the next morning and deferred surgery to the following week to fulfill recreation plans over that weekend. Defendant hospitalist was aware the decision to defer surgery, and did not obtain vascular surgery coverage for the required aneurysm repair procedure. Approximately four hours after defendant vascular surgeon left the hospital, plaintiff s aneurysm ruptured while in ICU. A second vascular surgeon intervened and repaired the aneurysm, but plaintiff sustained spinal artery syndrome as a result of blood loss. It resulted in severe prolonged hypotension, with resulting paraparesis (weakness) of the lower limbs and bowel and bladder dysfunction. The case settled at facilitation for $1.5 million. Plaintiff s age (70) and ancillary co-morbid conditions were major factors contributing to acceptance of the final offer. The key to recovery was involvement of defendant hospitalist, who was employed by defendant hospital. Types of injuries: Paraparesis (weakness) of lower extremities, bowel and bladder dysfunction, secondary to spinal artery syndrome Court/Case no./date: Saginaw County Circuit Court; confidential; June 17, 2011 Name of judge: Janet M. Boes Demand: $1.75 million Settlement amount: $1.5 million Most helpful experts: Dr. Martin A. Fogle, vascular surgery, Fall River, Mass. Insurance carrier: MHA Attorney for plaintiff: Gregory M. Bereznoff #23 (tie) Aneurysm procedure, diminished cognitive capacity are disputed Plaintiff says that given woman s age, other surgery was appropriate $1.5 million In a confidential medical-malpractice lawsuit, plaintiff patient sought compensatory damages from defendant neurosurgeon and defendant medical center on claims of severe neurological damage following an intracranial aneurysm clipping procedure. In October 2007, plaintiff, a 70- year-old woman, was referred by her primary-care internist to a neurologist for complaints of dizziness. On Oct. 31, 2007, plaintiff underwent a magnetic resonance angiography of the brain. The study reportedly demonstrated a 4 mm right-middle cerebral-trifurcation aneurysm. On Jan. 3, 2008, plaintiff underwent CT angiography. The study reportedly confirmed the presence of MCKEEN BRACKON a 4mm intracranial aneurysm as well as a 2.7 mm widenecked aneurysm. The radiology report indicated that the aneurysms were amenable to an endovascular coiling procedure. Plaintiff was immediately referred to defendant neurosurgeon, who recommended surgical clipping over endovascular coiling and over conservative management with observation. Although the neurosurgeon claimed he offered the patient conservative treatment and observation of her aneurysms, he repeatedly told plaintiff that the aneurysms could rupture at any time if she didn t have the clipping procedure performed. On Feb. 19, plaintiff underwent a right frontotemporal craniotomy and clipping of right-middle cerebral-artery aneurysm; and exploration for right-internal carotidartery aneurysm. Though the operation seemed to take place without incident, in the hours that followed the surgery, plaintiff cognitively deteriorated. Finally, on Feb. 20, plaintiff underwent a CT of the head that demonstrated a large subarachnoid hemorrhage. After further deterioration, another CT was performed that demonstrated increasing prominence of a right frontal infarct with hemorrhagic transformation. Ultimately, a third CT was performed that demonstrated a frontal intraparenchymal hemorrhage with increasing/large midline shift, and a craniotomy was performed to evacuate the intraparenchymal hemorrhage. Plaintiff remained in the hospital and rehabilitation unit for several months. She currently requires 24-hour care and assistance at her residence. Plaintiff asserted that, given the age of the patient, as well as the size and location of the aneurysms, an aneurysm clipping should not have been performed. It also was contended that she should have been managed conservatively or possibly considered for an endovascular coiling procedure. Defendants asserted that the clipping procedure was proper; that the plaintiff consented to the procedure and, therefore, defendants were absolved from liability; and that plaintiff s diminished cognitive capacity was a result of dementia, not the intracranial bleed. It was further contended that plaintiff had a limited life expectancy due to arthritis of the neck, chronic neck and back pain, gait dysfunction, a history of falls, peripheral vascular disease, hypertension, and a 40-year history of heavy smoking. The matter settled for $1.5 million. Type of injuries: Severe neurological damage following intracranial aneurysm clipping Continued on page B20
20 B20 Michigan Lawyers Weekly January 9, 2012 Cite 26 Mich.L.W. 252 LARGEST SETTLEMENTS Continued from page 19 Court/Case no./date: Confidential; Nov. 23, 2011 Settlement amount: $1.5 million Attorneys for plaintiff: Brian J. McKeen, Derek J. Brackon #24 Ex-law firm partners clash over dissolution Valuation of contingency practice disputed from both sides experts $1.435 million In a confidential lawsuit, plaintiff/counter-defendant lawyer and defendant/counter-plaintiff lawyer sought damages in a shareholder dispute over the value of the law firm and its dissolution. The parties, beginning in 2001, built up a successful law practice, which they owned The firm included a substantial contingency practice for a few large clients, which generated significant revenue on an ongoing basis, as well as an hourly practice. However, the parties reached a point where they could no longer work together, and filed claims against each other. The parties each retained business valuation experts and proceeded to arbitration on the value of the contingency practice. MANTESE SAXE Plaintiff/counter-defendant and his expert asserted that defendant s interest in the contingency practice should be severely discounted for several reasons, including anticipated additional costs to maintain the contingency work. Defendant/counter-plaintiff contested the methodologies of plaintiff/counter-defendant s expert as well as plaintiff s approach to valuing the firm s practice. It also was contended that the value of the contingency practice should account for a future stream of revenue. After discovery and arbitration proceedings, the matter was resolved, with defendant/counter-plaintiff receiving a $360,000 lump sum cash payment, a $725,000 arbitration judgment, and the $350,000 value of the firm s hourly practice, for a total settlement of $1.435 million. Type of action: Shareholder dispute over value of law firm Type of injuries: Value of ownership interest Court/Case no./date: Confidential; June 2011 Settlement amount: $1.435 million Most helpful expert: Jesse A. Ultz, valuation and financial opinions, Southfield Attorney(s) for plaintiff/counter-defendant: Withheld Attorneys for defendant/counter-plaintiff: Gerard V. Mantese, Brian M. Saxe #25 (tie) Malpractice is claimed for ruptured aneurysm Decedent s estate: Wrong-sided craniotomy results in delay to fix it $1.3 million In a confidential wrongful-death/medical-malpractice lawsuit, plaintiff s decedent s estate sought compensatory damages from defendants hospital, neuro radiologist and neuro surgeon following the handling of an aneurysm. On Aug. 6, 2007, plaintiff s decedent (patient) presented to the emergency department of a local hospital with an acute subarachnoid bleed. An interventional neuro radiologist proposed to do a cerebral angiogram with possible coiling of an aneurysm. The day next, after identifying the location, the radiologist spoke with a neurosurgeon about treatment of the aneurysm, saying that because of the wide neck of the aneurysm, balloon assistance would MCKEEN probably be required. However, both decided that the radiologist would proceed with an attempted coiling of the aneurysm. The radiologist then informed the operating room team that he would proceed with embolization of the aneurysm. The Hyperform balloon was reinflated, and it was noted that the patient was acutely hypertensive and bradycardic. The radiologist then informed the operating DAWES room team that the neurosurgeon needed to be notified, and a second operating room needed to be available for a possible emergent craniotomy. An initial contrast dye injection showed diffuse spasm of the artery with slow flow throughout the left internal carotid artery, with no definitive aneurysm rupture or extravasation. The radiologist asked the operating room team to contact the neurosurgeon stat for an emergency craniotomy for aneurysm rupture. Upon entry into the second operating room, for reasons unknown, it was erroneously determined that a rightsided craniotomy would be done, which plaintiff s estate asserted was in error, as the aneurysm was on the left side. After the craniotomy and durotomy was finished, the neurosurgeon asked the radiologist to come into the second operating room and asked which side the aneurysm was on. According to the radiologist s dictated procedure note, he restated to the neurosurgeon that the aneurysm was on the left side. At that point, the right-sided craniotomy and durotomy were closed, and the patient was prepped for the left-side craniotomy. The neurosurgeon then performed clip occlusion of the aneurysm. Performance of the attempted coiling caused iatrogenic rupture of the aneurysm. Plaintiff s estate asserted that the failure to correctly identify the proper side for the craniotomy resulted in needless delay in performing the operation that the patient desperately needed to control the bleeding into her brain due to the aneurysm. It was added that, as a result of the delay and not properly doing the proper-sided surgery, the patient sustained permanent brain injury; it left her with permanently impaired cognitive capacity. The patient remained in this condition until her death Dec. 8, The matter settled for $1.3 million. Types of actions: Wrongful death, medical malpractice Types of injuries: Brain injury, coma, death Court/Case no./date: Confidential; June 3, 2011 Settlement amount: $1.3 million Attorneys for plaintiff: Brian J. McKeen, Terry A. Dawes #25 (tie) Man s leg amputated after being hit by bus Witnesses say plaintiff had right of way when going on crosswalk $1.3 million In a confidential third-party auto negligence lawsuit, plaintiff pedestrian sought compensatory damages from defendant bus company for injuries sustained in an accident. In winter 2009, the driver of defendant s bus was proceeding eastbound on the street, when he attempted to make a right turn onto a southbound street. Plaintiff was FAKHOURY at the southwest corner waiting for the walk signal to activate. Once the signal activated, plaintiff began to walk and the driver began to make his right turn. The driver failed to yield for plaintiff and slammed into plaintiff. The accident resulted in traumatic amputation of the right leg above the knee with a left leg fracture. Additionally, plaintiff sustained fractures to both forearms, cervical spine injuries, and a closed-head injury. Plaintiff underwent 10 surgeries, months of hospitalization, and lengthy rehabilitation, and was confined to a wheelchair with 24-hour attendant care. An eyewitness testified that plaintiff crossed on the green light/walk signal and was within the crosswalk. In addition, the responding police officer testified that he believed plaintiff to be at least 9 feet away from the curb and possibly 11 to 12 feet from the curb when he was struck by the bus, and that the bus driver should have seen plaintiff crossing. Plaintiff asserted that MCLA (1)(a) specifically states that vehicular traffic, including vehicles turning right or left, shall yield the right-of-way to other vehicles and to pedestrians and bicyclists lawfully within the intersection or an adjacent crosswalk at the time the signal is exhibited. It was added that the defendant did not do this. Defendant contended that the driver started to make his right turn on the red light, that the light never turned green for eastbound traffic before he turned, and that he never saw plaintiff any time before the impact. It also was asserted that plaintiff was comparably negligent by not observing and hearing the loud bus before entering the intersection. The matter settled for $1.3 million. Type of action: Third-party auto negligence Types of injuries: Amputation of the right leg above the knee, left leg fracture, closed-head injury, forearm fractures Court/Case no./date: Confidential; May 16, 2011 Settlement amount: $1.3 million Most helpful expert: Daniel Lee, accident reconstruction, East Lansing; William C. Wilson, accident reconstruction, Bath; Dr. Robert Colen, orthopedic surgery, Novi; Dr. Alfred Baylor, trauma surgery, Detroit Attorneys for plaintiff: Walid Y. Fakhoury, Andrew S. Khurana, Naim G. Younan #26 Complex implicated by estate for letting people with criminal records in Plaintiff: Proper steps not taken to prevent woman s stabbing death $1.285 million In a confidential wrongful death lawsuit, plaintiff s estate sought compensatory damages from defendant apartment owner following the stabbing death of plaintiff s decedent. In 2008, a 23-year-old mother of two children was stabbed to death inside of her apartment. Despite the landlord having a policy against leasing apartments to people with criminal records, discovery and investigation revealed at least 25 tenants living at the complex with serious criminal records. Also, depositions revealed that two of the five employees who worked at the apartments prior to and at the time of the murder also had criminal records. Through tenant interviews, it was established that the apartments MANTESE FREY were equipped with defective locking mechanisms, which would not have prevented the kind of breaking and entering that likely resulted in plaintiff s death. Discovery also revealed that the apartment owner contracted with a background screening company, yet failed to appropriately use the company s services. In addition, one tenant with an especially long criminal record who was the subsequent murder suspect had submitted an application to lease an apartment from the defendant. Though his application was rejected because of his criminal record, he continued to live at the apartment complex with his girlfriend, with the knowledge and acquiescence of the manager.
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