Million-Dollar Verdicts & Settlements,

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1 B SECTION Million-Dollar Verdicts & Settlements 2012 A special publication presented by istockphoto.com Verdict value drops 73%, settlements get 38% boost Though there were more verdicts and settlements reported in the 2012 edition of Michigan Lawyers Weekly s Million-Dollar Verdicts & Settlements, the total monetary value was mixed compared to the 2011 figures. There was a 16 percent increase in the number of million dollar-plus reports submitted and/or reported upon in , compared to 2011 s 67. But the 22 verdict awards (by jury and by judge) in 2012 totaled more than $56 million, a 73 percent decrease compared to the $204 million among 2011 s 26 verdicts. None of 2012 s verdicts, nor the sole default judgment of $7.5 million, broke the seven-figure mark. In contrast, 2011 s top jury verdict was $144 million, while the largest default judgment was $172.2 million. As for settlements, the monetary total of 2012 s 53 reports was $175.1 million, a 38 percent increase from the $108 million figure posted from 2011 s 40 reports. Only one 2012 settlement reached eight figures, a $13 million shareholder oppression action, while 2011 s highest settlement was $6.25 million. The four class actions for 2012 totaled $26.6 million, which is a 58 percent increase over 2011 s sole class-action settlement of $11.3 million. The No. 1 verdict of 2012 concerned a Flint chiropractor, who was awarded $6,987,688 on claims of breach of contract, negligence, failure to honor good faith duties, and tort of false light invasion of privacy. The defendant insurance adjusters allegedly mishandled a chiropractic-malpractice claim against MiLW photo by Douglas Levy Attorneys Lawrence Acker (left) and Loyst Fletcher Jr. represented a Flint chiropractor who asserted being the victim of his insurance carrier s covering up of a mishandled chiropractic-malpractice claim. It resulted in a $6,987,688 jury verdict in Genesee County. the doctor, then were accused of filing an erroneous report with the National Practitioner Data Bank. The jury assigned the bulk of the award for lost reputation and emotional damages. At second place, Andrew Shirvell, a former Michigan assistant attorney general, was hit with a $4.5 million federal jury verdict on claims of defamation, intentional infliction of emotional distress, invasion of privacy and stalking. He was accused of harassing Christopher Armstrong, the first openly gay student body president at the University of Michigan. He represented himself. The third highest verdict was a $4.34 million third-party no-fault case, where the plaintiff underwent six surgeries after a bus driver hit her sister s car. It was contended the bus driver turned into an intersection against a green light and against oncoming traffic, and without first insuring that traffic was clear. The defense said the sister, who was a non-party, was substantially more at fault. LARGEST VERDICTS Tort of false light invasion of privacy, defamation, third-party no-fault among top verdicts. page 2 CLASS ACTIONS Residential fire insurance policies, Telephone Consumer Protection Act claims are disputed. page 10 LARGEST SETTLEMENTS Shareholder oppression, med-mal, birth trauma, civil rights violations on this year s list. page 11 ABOUT THIS SECTION This section includes verdicts and settlements of $1 million or more obtained in 2012 that were reported to Michigan Lawyers Weekly and verified on or before Dec. 27, We would like to thank the attorneys who submitted their reports to MiLW 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. MiLW acknowledges that there have been other verdicts and settlements of $1 millionplus 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 Levy at (248) or douglas.levy@mi.lawyersweekly.com.

2 B2 Michigan Lawyers Weekly Michigan Lawyers Weekly Insurance carrier destroyed reputation Report filed erroneously leads to lost business, canceled policy $6,987,688 #1 A Genesee County jury awarded Dr. Micheil Hanczaryk and Bristol Chiropractic Centre nearly $7 million on claims of breach of contract; negligence pertaining to information communicated to others; failure to honor good faith duties; and tort of false light invasion of privacy against Podiatry Insurance Co. ACKER of America. PICA had assigned an attorney to represent Flint-based Hanczaryk in a chiropractic-malpractice claim. Through a combination of errors, the attorney failed to timely file an affidavit of meritorious defense, in addition to a timely motion for reconsideration and application for leave to appeal. The plaintiffs asserted that the FLETCHER attorney, with the help of PICA, reported misleading information in order to justify settlement of the claims. Plaintiffs also contended that the insurance adjusters failed to properly manage the case file by not securing appropriate cause and damage testimony; refused to replace the attorney on file; engaged in concealment regarding their actions; and forced plaintiffs to settle after threatening to invoke non-cooperation and unreasonably withholding settlement authority clauses. In addition, PICA was accused of filing an erroneous report with the National Practitioner Data Bank against Hanczaryk, adding insult and harm to his reputation; firing him from his position on a national advisory board that PICA controlled, resulting in adverse publicity that harmed his consulting business; and cancelling his policy of 21 years without cause. Defendants argued that Hanczaryk consented to the malpractice settlement; that PICA was ready, willing and able to go to trial for the malpractice claims if Hanczaryk had wanted; and that PICA was only doing what it thought would be in Hanczaryk s best interests and what Hanczaryk wanted it to do. In calculating present and future damages, the jury awarded through 2014, the year that Hanczaryk would be of retirement age. They were broken down as $178,669 for damages to Bristol Chiropractic Centre through present day; $229,549 for business losses through 2014; $3.718 million for lost reputation and emotional damages through present day; and $2,861,400 for lost reputation and emotional damages through Legal malpractice claims that plaintiffs filed against the attorney who was assigned to represent Hanczaryk in the malpractice claim were settled confidentially. Types of actions: Breach of contract, negligence, failure to honor good faith duties, tort of false light invasion of privacy Type of injuries: Financial, reputation Name of case: Hanczaryk, et al. v. Podiatry Insurance Co. of America, et al. Court/Case no./date: Genesee county circuit court; nM; March 6, 2012 Name of judge: Geoffrey neithercut Verdict amount: $6,987,688 Most helpful experts: Dr. solomon cogan, chiropractor and chairman of the Michigan Department of chiropractic, Farmington Hills; connie Houin, former risk manager/general counsel for st. John Health system, Grosse Pointe; William King, economist, Lansing Insurance carrier: Podiatry insurance co. of america Attorneys for plaintiff: Loyst Fletcher Jr., Lawrence acker Attorney for defendant: Melvin schwartz Key to winning: experts ability to break down financial and loss-ofreputation damages #2 Ex-assistant attorney general hit for damages in defamation case Defendant maintains his First Amendment rights ruled over $4.5 Million In federal court, plaintiff Christopher Armstrong sought compensatory and exemplary damages from defendant Andrew Shirvell, on claims of defamation, intentional infliction of emotional distress, invasion of privacy and stalking. Armstrong asserted that in early 2010, Shirvell, who was employed as assistant attorney general for the state of Michigan, developed a bizarre, personal obsession with him, the first openly gay student body president at the University of Michigan. Around March 2010, Shirvell set up a Facebook group titled U of M Alumni and Others Against Chris Armstrong and His Radical MSA [Michigan Student Assembly] Agenda. There, it was claimed Shirvell made false and malicious statements about, and physical threats toward, Armstrong online, calling him a radical homosexual activist, racist, elitist and liar. The next month, Shirvell published an anonymous blog called Chris Armstrong Watch, which was centered entirely on Armstrong and his personal life. The posts included false and malicious statements about Armstrong engaging in a homosexual orgy in October 2009 and being an out-right anti-christian bigot who openly mock[s] God, the Bible and the sanctity of unborn human life. In addition, Shirvell said that Armstrong was involved with actively recruiting U-M freshmen to join the homosexual lifestyle, and accused Armstrong of wanting to liquor up underage freshmen in doing so. Shirvell also accused Armstrong of subscribing to Nazi and Ku Klux Klan teachings. GORDON Armstrong said that Shirvell reported a STUNNING BOMB- SHELL that Ann Arbor Police raided Armstrong s home during an out of control party during the school s Welcome Week. However, it was asserted that Shirvell learned of the party before it began, and lingered outside Armstrong s home throughout the night, taking photographs PRESCOTT and videotaping party attendees. Shirvell then called the police and reported a disturbance in order to generate a newsworthy event for his blog. Defendant, representing himself, maintained that his blog [w]as a movement to get plaintiff to resign as student body president, because he personally felt Mr. Armstrong was too radical for the position ; that he was acting within his First Amendment rights; and that his statements were either true or protected because of Armstrong s role as a public figure. The jury found for the plaintiff and awarded $4.5 million in damages. Type of action: Defamation, intentional infliction of emotional distress, invasion of privacy, stalking Name of case: Armstrong v. Shirvell Court/Case no./date: u.s. District court, eastern District of Michigan; 2:11- cv-11921; aug. 16, 2012 Name of judge: arthur tarnow Verdict amount: $4.5 million Attorneys for plaintiff: Deborah Gordon, sarah Prescott Attorney for defendant: andrew shirvell 5th 4th 3rd nd 1st $0M $25M $50M $75M $100M $125M $150M $175M $200M $225M $250M $275M $300M

3 Michigan Lawyers Weekly Michigan Lawyers Weekly B3 Proximate cause of collision is disputed Witness says bus cut all lanes while turning; jury divides liability $4.34 Million #3 Plaintiff Joyce Simmons sought compensatory damages from defendants Floyd Pitts and Safeway Transportation Inc. for injuries sustained in an auto accident. On Oct. 21, 2009, Simmons was a passenger in a car being driven by her sister, non-party Charlene Simmons. The car was struck by a Safeway school bus driven by Pitts. Sim- MORSE mons underwent six surgeries resulting in scars to her knee, shoulder and wrist. She continued to have multiple complaints and limitations through the date of trial. Plaintiff claimed Pitts was the sole cause of the collision, for improperly turning into an intersection against a green light and against oncoming traffic, and turning without first insuring that FILIATRAUT traffic was clear. An independent witness testified that Pitts cut all lanes of traffic off when he made his lefthand turn directly in front of Charlene Simmons, and thereby caused the accident. Co-workers and family members testified that the impact from plaintiff s multiple surgeries severely affected her life. Her work manager indicated that plaintiff would have difficulties returning to work as a burn unit nurse, with permanent 5- pound lifting restrictions for her wrist, left shoulder and left knee. Defendants conceded responsibility for causing the accident, but only conceded that Pitts improperly turned left in front of the vehicle, and that his was one but not the only proximate cause of the accident. Defendants further stated that Charlene Simmons was substantially more at fault for the accident, in that she disregarded other traffic stopped at the light, which put her on notice that there was something in the intersection, and entered the intersection at an unsafe speed. In addition, defendants claimed that plaintiff s shoulder was healed by April 2010; her left knee was healed by September 2010; she had reached maximum medical improvement with regard to her left wrist by March 2010; and any neck and back complaints resolved themselves within a few weeks after the accident. The jury deliberated two hours, and split the liability as 90 percent Floyd Pitts and Safeway Transportation and 10 percent non-party Charlene Simmons. Past and present pain and suffering damages were awarded at $1.5 million; future pain and suffering damages at $2.34 million; and excess economic wage loss at $500,000. Type of action: third-party no-fault Types of injuries: Fractured left wrist requiring pinning with resultant scarring, two left shoulder surgeries, three left knee surgeries with significant scarring, minor neck and back injuries Name of case: Simmons v. Pitts Court/Case no./date: Wayne county circuit court; ni; May 3, 2012 Name of judge: Daniel ryan Name of mediator: Paul Monicatti Demand: $3 million Highest offer: $600,000 Verdict amount: $4.34 million Case evaluation: $850,000 Special damages: $500,000 future economic wage loss Most helpful experts: Dr. Gary Gilyard, orthopedic surgery, Madison Heights; Dr. Martin Kornblum, orthopedic surgery, Livonia; Dr. stephen Mendelson, orthopedic surgery, Livonia Insurance carrier: rli transportation Attorneys for plaintiff: christopher Filiatraut, Michael Morse, Jacob yeater Attorneys for defendant: Michael Hutchinson, tara cannatella Keys to winning: Holding full-day focus group; knowing defense s arguments and short-circuiting them through live testimony of laywitnesses and expert damage witnesses #4 City, company at odds over clawback action Actual damages disputed when plant closes, agreement analyzed $4,015,875 Plaintiff Owens-Brockway Glass Container Inc. filed suit seeking declaratory relief from a decision of defendant State Tax Commission to revoke an Industrial Facilities Exemption Certificate, and seeking to invalidate an agreement voluntarily entered into by both plaintiff and defendant city of Charlotte. The city countersued, seeking damages pursuant to the liquidated damage provision of contact with plaintiff. In 1998 and 1999, Owens-Brockway and the city engaged in a negotiation process, providing for the establishment of an industrial facilities district and the issuance of an IFEC as it related to the personal property. The total investment subject to the tax abatement was $35,510,268. As required by MCL , the parties entered into a written agreement setting forth the contractual obligations of each party. Among other provisions, it provided for remedies in case of a default, and one of the events of default was the closing of the plant. If there was a closing as defined in the contract, the remedy, called a penalty, was the clawback of all of the abated taxes over the Continued on page 4 The numbers tell the story. Verdicts & Settlements secured on behalf of our valued clients during 2012 $56 Million Remarkable Results achieved in a range of important cases in the last three years $103 Million Referral Fees paid to our network of referring attorneys over the past decade $60 Million MEDICAL MALPRACTICE PERSONAL INJURY MASS TORT T CLASS ACTIONS EMPLOYMENT COMPLEX BUSINESS & COMMERCIAL LITIGATION TION ONE TOWNE SQUARE, SUITE 1700 SOUTHFIELD MICHIGAN (800)

4 B4 Michigan Lawyers Weekly Michigan Lawyers Weekly Continued from page 3 term of the abatement. The IFEC went into effect Dec. 30, 1999, and was to end on Dec. 30, On Feb. 26, 2010, Owens-Brockway advised the city that it was ceasing operations at the plant. It laid off all employees except those necessary to dismantle and ship equipment and machinery to plants throughout the U.S. The city sought to revoke the IFEC, and Owens- Brockway objected. A hearing was held before the State Tax Commission on Dec. 7, 2010, and the IFEC was revoked by the commission. Owens-Brockway filed its declaratory judgment action seeking to invalidate the contract, and the city filed its counterclaim seeking the recovery of an amount equal to the abated taxes for the 11-year period Owens- Brockway manufactured glass at the plant. The parties stipulated that the amount of the abated taxes was $4,015,875, and that, substantially, all employees had been laid off. At trial, Owens-Brockway raised several arguments saying the contract was invalidated. It asserted that the measure of damages based upon the abated taxes constituted a penalty and not a valid liquidated damage provision. It argued that to be enforceable a liquidated damages provision must be reasonable in relation to the possible injury suffered and not excessive. Also argued was that the city was not entitled to claim damages where the city did not incur actual damages, other than what is set forth in the contract. Owens-Brockway also claimed that the contract was invalid, as essentially the payment of an amount equal to the difference between what would have been paid under the General Property Tax Act and under Act 198 amounted to the collection of a tax. Owens-Brockway asserted that there is no authority for the city to collect such a tax and the contract is void. Finally, Owens-Brockway claimed that while the plant could produce no glass, there still remained on-site enough equipment and machinery that substantially all was not removed to a location outside of the city, and there was no closing, as defined in the contract. The city argued that the liquidated damage clause in this case was lawful, as liquidated damages are frequently used to establish a sum certain in case of breach when the nature of the transaction makes the damages difficult to ascertain. The city also asserted that it suffered actual damage, in that the community suffered loss of employment and wages, and its tax revenue from this property would be significantly reduced. The liquidated amount represented a reasonable amount where the actual damage to the community as a whole was impossible to quantify. Regarding the argument raised by Owens-Brockway that the clawback pursuant to the contract amounted to the collection of a tax, the city argued that the liquidated damage clause was not a tax. In his ruling, Judge Clinton Canady III held that the contract was valid and that the damage clause was a lawful, liquidated damage clause. Canady found that, substantially all of the equipment had been removed and all of the employees had been laid off, and that the plant closed as that term was defined in the contract. The city was awarded the full damage amount of $4,015,875. Type of action: Declaratory action seeking to invalidate a contract; counterclaim for breach of contract Type of injuries: clawback of an amount equal to the 11 years of the abated taxes plaintiff had received under a tax abatement granted pursuant to act 198 of 1974 (suit); contract damages pursuant to the liquidated damage provision of contact with plaintiff (countersuit) Name of case: Owens-Brockway Glass Container Inc. v. State Tax Commission, et al. Court/Case no./date: ingham county circuit court; cK; Dec. 14, 2012 Tried before: Judge Name of judge: clinton canady iii Name of mediator: Jon Muth Demand: $2.2 million Highest offer: $250,000 Verdict amount: $4,015,875 to defendant/counter-plaintiff Most helpful expert: Martin craig carmody, expert in design and operation of glass manufacturing plants, rolla, Mo. Attorneys for plaintiff/counter-defendant: Jack Vancoevering, James Brazeau Attorney for defendant: assistant attorney General Matthew Hodges Attorney for defendant/counter-plaintiff: thomas Hitch Keys to winning: extensive document production and depositions; locating former employees of owens-brockway who were involved in the dismantling and removal of equipment, which culminated in owens- Brockway conceding in its opening statement that the plant was incapable of making and forming glass Plaintiff says sooner diagnosis would have prevented blindness Ophthalmologist asserts patient s condition had no classic symptoms $3.56 Million #5 Plaintiff Rose Strickland sought compensatory damages from defendant Dr. Harry Wright on claims of medical malpractice for her blindness. Strickland, 76, had a medical history that included cataract surgery in 2008 and a motorcycle accident June 29, 2009, leading to GOREN shoulder surgery July 23, She had just gotten out of the hospital for her shoulder surgery July 28, The next day, Strickland went to Wright, her ophthalmologist, complaining of a total loss of vision in her right eye but normal vision in her left. Her eyes were examined and photographed, but no blood tests were taken, nor were steroids started. The recorded impression was central retinal artery occlusion, and the plan was to see her again in two weeks. On Aug. 10, 2009, Strickland saw her family doctor, complaining of now having blurred vision in her left eye. She was sent the next day to see a different ophthalmologist, but then developed blindness in both eyes. Hospitalization was immediately ordered, along with a biopsy for temporal arteritis (inflammation and damage to blood vessels that supply the head) and steroids, all of which were done Aug. 11. Though the diagnosis was made and treatment was initiated, her vision did not come back. Plaintiff asserted that a diagnosis for temporal arteritis should have been made on the first visit, and would have prevented blindness in the second eye. Defendant argued that this was an extremely rare condition presenting in an unusual manner, with none of the classic symptoms. Further, in the context of plaintiff s recent surgery, the other diagnosis was more probable. The jury found for the plaintiff and awarded $3.56 million. Type of action: Medical malpractice Type of injuries: Loss of vision in one eye Name of case: Strickland v. Wright, et al. Court/Case no./date: shiawassee county circuit court; nH; June 22, 2012 Name of judge: Michael Higgins Verdict amount: $3.56 million Insurance carrier: Proassurance Attorney for plaintiff: steven Goren Attorney for defendant: James Dalton #6 Countersuits contend companies breached contract for pipe job Late deliveries, unpaid balance, defective materials argued in suit $1,097,730 (plaintiff); $3,076,468 (DefenDants) Plaintiff/counter-defendant Andy J. Egan Co. Inc. sued defendants/counter-plaintiffs PRO Services Inc. and Michael Vandemaele Jr. on claims of breach of contract, Michigan Building Contract Fund Act conversion, common law conversion, and statutory conversion. Defendants/counter-plaintiffs suit alleged breach of contract. In May 2010, PRO Services entered into a subcontract with Egan to fabricate the piping and deliver it to a Fort Edward, N.Y., paper plant, where PRO Services was hired to install pipe. Two different contracts were entered to cover different portions of the work, and each required Egan to deliver by a certain date. As the project went on, Egan was only paid around $20,000 of the combined contract balance of $1,220,077, but kept sending pipes. In September 2010, a discussion ensued between the parties over non-payment, and PRO Services said it would pay $855,000 for additional pipe shipment. No payment was made, and after attempts to contact Vandemaele, PRO Services CEO, a suit was filed. Defendant argued that plaintiff was late 90 percent of the time, requiring defendant to hire more men to install the pipe within the project s deadlines and incur other costs. Also, hundreds of pieces of pipe were defective, and in one case, the approach pipe the most important one for the project had to be redone by another contractor for $300,000. Defendant further contended that it was almost fired from the project, and millions in damages were incurred. Though plaintiff stated that its late deliveries were due to the paper plant making changes to construction drawings, defendant said such changes were minor and don t explain why almost all of plaintiff s pipes were late or defective. In addition, defendant said the contract allowed for PRO Services to withhold money from plaintiff for late delivery costs and defective pipe repairs. The jury determined PRO Services breached its subcontract with Egan, and awarded $1,097,730, but did not find for the conversion claims. The jurors also determined Egan breached its contract with PRO Services, and awarded defendants/counter-plaintiffs $1,841,468 in direct damages and $1.235 million in consequential damages. Type of action: Breach of contract, conversion Type of injuries: Financial Name of case: Andy J. Egan Co. Inc. v. PRO Services Inc., et al. Court/Case no./date: oakland county circuit court; cK; May 17, 2012 Name of judge: Wendy Potts Demand: $1.22 million plus treble conversion damages (plaintiff); $3,286,080 direct damages, $4.175 million consequential damages (defendants) Verdict amounts: $1,097,730 (plaintiff); $3,076,468 (defendants) Case evaluation: $1.554 million Most helpful experts: Bill Gurry, construction scheduling specialist, Marietta, Ga. (defendants) Insurance carrier: cna Attorneys for plaintiff: stephen Hilger, aileen Leipprandt Attorneys for defendant: Mark Mcalpine, Marcus sanborn, Don Blevins, David Zack Mother says delivery team s panicking led to a birth trauma Defendants say maternal forces of labor were to blame for injuries $3.07 Million #7 Plaintiff Mandee Arndt, next friend to plaintiff s minor Cassidy Arndt, sought compensatory damages from defendants Hayes Green Beach Memorial Hospital, Charlotte Women s Health and Dr. Amy Mulcaster, on claims of medical malpractice and birth trauma During delivery of plaintiff s minor, a shoulder dystocia occurred, ASH where the head was delivered, but the anterior shoulder became impacted and could not pass through the birth canal. It was argued that defendants were professionally negligent in applying fundal pressure and excessive downward lateral traction to the baby s head and neck, resulting in immediate and permanent injury to the brachial plexus of her right arm. Plaintiffs asserted that the standard of care for shoulder dystocia a known complication of delivery requires that the delivery team proceed through a number of recognized maneuvers to disimpact the baby s shoulder. It was further contended that the delivery team probably panicked, and the nurses used uterine fundal pressure force applied to the top of the mother s belly nearest to her breast bone further impacting the shoulder while the doctor then pulled on the baby s head. Additionally, it was argued, although the baby was sufficiently oxygenated with at least five minutes avail-

5 Michigan Lawyers Weekly Michigan Lawyers Weekly B5 able to work through the accepted maneuvers and free the shoulder, the team became anxious and rushed to complete the delivery within 90 seconds. This bruised the child, fracturing her collarbone, and inflicting permanent nerve damage on her cervical spine. The result was a lifelong disability to her dominant right arm requiring surgery and a need for ongoing physical/occupational therapy. Defendants argued that the baby s injuries occurred in utero, prior to the delivery team s involvement. Alternatively, it was contended that defendants acted in accordance with the accepted standard of care. However, one of the experts testified that the only time a physician would violate the standard of care in applying excessive traction to a baby s head during a shoulder dystocia event would be if the doctor pulls the head off or severs the spinal cord. Plaintiffs counsel said that such a statement elicited notable disbelief from the jury and undermined the credibility of defendants position. The jury found for the plaintiffs and awarded $3.07 million. Type of action: Medical malpractice (birth trauma) Type of injuries: Brachial plexus injury, nerve avulsion, fractured clavicle, permanent disfigurement Name of case: Arndt v. Hayes Green Beach Memorial Hospital, et al. Court/Case no./date: eaton county circuit court; nH; nov. 21, 2012 Name of judge: calvin osterhaven Demand: $750,000 Verdict amount: $3.07 million Case evaluation: $1.2 million Most helpful experts: Dr. edith Diament Gurewitsch, obstetrics and gynecology, Baltimore; Dr. toni Huebscher Golen, obstetrics and gynecology, Boston Insurance carrier: Michigan Hospital association insurance co. Attorney for plaintiff: charles ash iii Attorney for defendant: thomas Hall Keys to winning: Getting jury to understand the delivery process and the mechanical nature of the child s injury Plaintiff: Resident was wrong man to do dental procedure Referring dentist didn t do surgery, but jury says he was responsible $2.69 Million #8 Plaintiffs Laura and Michael Baisley sought damages from defendants Dr. Dahn Minh Bui and Brian Donlon DDS Professional Corp., d/b/a Cosmetic Dentistry Center, on claims of dental malpractice. Bui diagnosed Laura Baisley with an impacted wisdom tooth and recommended extraction. A contractor who was an oral surgery resident performed the extraction Nov. 9, During the procedure, the burr tip on the tip of the drill fractured Baisley s mouth and was retained in her jaw. Plaintiff argued that Bui became aware of the drill bit upon reviewing the X-ray, but did not tell Baisley, but this was contested by defense. When Baisley complained of oral pain, Bui referred her back to the oral surgery resident. Plaintiff contended that Bui saw the presence of the retained drill bit in an X-ray, but did not inform plaintiff of the finding. The attempt to remove the drill bit on Nov. 16 caused the bit to be pushed into the inferior alveolar nerve canal, causing a permanent nerve injury, resulting in numbness, hypersensitivity and pain in Baisley s left lower lip and chin. Defendants contended that an informed consent document listed nerve damage as a possible complication of wisdom tooth extraction; that Bui did not force the drill bit into plaintiff s inferior alveolar canal; and that none of his actions caused plaintiff s injury. Plaintiff asserted that the standard of care was violated, as defendant Bui referred plaintiff to an oral surgery resident and not an oral surgeon, which was required in order to achieve informed consent. In addition, plaintiff argued that patients have a right to be informed, and had Bui fully advised plaintiff of her diagnosis and the resident s qualifications, her nerve injury would have never occurred. The jury returned a verdict in favor of the plaintiff, and awarded $2.69 million in past, present and future noneconomic damages. A high-low agreement that was put in place prior to trial reduced the amount to $300,000. Type of action: Dental malpractice Types of injuries: Permanent nerve dysesthesia, neuralgia of the inferior alveolar nerve Name of case: Baisley, et al. v. Bui, et al. Court/Case no./date: Macomb county circuit court; nH; March 2, 2012 Name of judge: richard caretti Demand: $175,000 Highest offer: $25,000 Verdict amount: $2.69 million Settlement amount: $350,000 via high/low agreement Case evaluation: $175,000 Most helpful experts: Dr. Mark ellis, general dentistry, chicago; Dr. robert staley, oral surgery, Portland, ore.; Dr. Martha Frankowski, neurologist, clinton township Insurance carrier: Proassurance Attorney for plaintiff: Justin Haas Attorney for defendant: Keith Felty Keys to winning: Demonstrating culpability of a doctor who did not physically cause any injury to plaintiff; educating the jury as to the severity and life impact of the client s injury/neuralgia Fault in truck-bicycle collision suit is split 83-year-old plaintiff s state of health disputed by defendants $2.55 Million #9 Plaintiff Theresa Modzelewski- Shekoski, personal representative of the Estate of Michael Shekoski, sought compensatory damages from defendants Allied Excavation Inc. and Michael Bindig on claims of third-party auto negligence and wrongful death. On July 23, 2009, Michael GURSTEN Shekoski was attempting to cross at the intersection 22 Mile Road and Van Dyke Avenue on his bicycle. Bindig, a truck driver with Allied Excavation, was traveling east on 22 Mile when he stopped for the red signal at the intersection. The truck driver made a right turn on red, and it was alleged that he did not ever see Shekoski, who had just entered the crosswalk on a white walk signal. The truck JAMES struck Shekoski, killing him. Defendants raised several defenses, including that Shekoski entered the crosswalk on a solid red or blinking Don t Walk crosswalk signal; that the truck was at the intersection first and that Shekoski rode his bicycle into the side of it; and that Shekoski did not see the truck because he was legally blind from advanced macular degeneration. Loss of society also was argued because of plaintiff s decedent s age (83). In addition, it was implied that his general state of physical health, including his prior heart attacks and advanced coronary artery disease, would result in a very low trial verdict at case evaluation and at facilitation. The jury deliberated for five hours and returned a $2.55 million verdict, allocating fault as 50 percent Bindig, 20 percent Allied Excavation, and 30 percent plaintiff s decedent. Types of actions: third-party auto negligence, wrongful death Type of injuries: Death Name of case: Modzelewski-Shekoski, et al. v. Allied Excavation Inc., et al. Court/Case no./date: Macomb county circuit court; ni; nov. 15, 2012 Name of judge: James Biernat Demand: $1.5 million Highest offers: $250,000 before trial, $500,000 during jury deliberation Verdict amount: $2.55 million Allocation of fault: 50 percent defendant Bindig, 20 percent defendant allied excavation, 30 percent Michael shekoski. Insurance carrier: secura Attorneys for plaintiff: steven Gursten, thomas James Attorney for defendant: Witold sztykiel #10 Jury considers whether son owned, unlawfully took car from father Plaintiff says vehicle was taken to be fixed at direction of jailed father $2,536,454 Plaintiff Jeanna Patterson, guardian of plaintiff Michael Deaton, and intervening plaintiff The Lighthouse-Traverse City LLC sought compensatory damages from defendant State Farm Mutual Automobile Insurance Co. on claims of owed benefits and medical care costs. Michael Deaton was severely injured in a single-car crash. The car, a Buick LaSabre, was registered to Michael s father, Gary Deaton, and was uninsured. When Gary Deaton learned that his ex-wife, Michael s mother, was attempting to gain custody of the comatose Michael, he testified that he had given the car to Michael, which would have resulted in Michael being disqualified from receiving no-fault benefits for failing to insure the car (MCL ). Gary Deaton had parked the car at his son s trailer the morning he appeared in court for a parole violation. Gary Deaton was sentenced to 90 days in jail, and while he was in jail, the insurance on the parked LaSabre expired. At trial, several witnesses testified that Michael never used the car, and his boss testified that he picked up Michael every day. Other witnesses testified that Michael rode a bicycle, walked or got a ride from someone else. There was evidence that a few days before Gary Deaton was being released from jail, Michael drove the car to install new brakes and the accident occurred the day Gary was released from jail. It was plaintiff s theory that Michael only drove the car with his father s permission and he was repairing the car at the direction of his father. State Farm was the assigned no-fault carrier through the Assigned Claims Facility. State Farm stipulated to paying 24-hour attendant care and all of Michael s allowable expenses if the jury found in Michael s favor. The jury was asked two questions: whether Michael was a constructive owner of the car, and whether Michael unlawfully took the car. The jury answered no to both questions. At judgment, plaintiffs were awarded $2,536,454 in medical care expenses, overdue benefits, interest, mileage and other costs. The case has since been settled. Type of action: First-party no fault Type of injuries: severe head injury requiring 24-hour care Name of case: Patterson, et al. v. State Farm Mutual Automobile Insurance Co. Court/Case no./date: Washtenaw county circuit court; nF; sept. 12, 2012 Name of judge: timothy connors Judgment amount: $2,536,454 Case evaluation: $1.545 million Insurance carrier: state Farm Attorneys for plaintiff: John Bredell (Patterson), Mark schreier (Lighthouse) Attorney for defendant: Michael Daniels #11 Trio say friendships, familial ties led to their terminations Defendant said those dismissed lied during management review $2.2 Million Three former employees of the 41B District Court in Clinton Township were awarded a $2.2 million verdict in their lawsuit against the chief judge who fired them. Patricia Barachkov, Nancy Englar and Carol Diehl said that Chief Judge Linda Davis fired them because Continued on page 6

6 B6 Michigan Lawyers Weekly Michigan Lawyers Weekly Continued from page 5 Englar was related to 41B District Court Judge William Cannon and his wife Peggy McBride Cannon, and the other two plaintiffs are friendly with Englar. Cannon retired after the women were fired, and died in After the women were fired in 2004, Davis made comments to a local newspaper reporter, saying that the plaintiffs had lied during a management oversight review, which the plaintiffs said was really an investigation of then-court Administrator Peggy Cannon s history of absenteeism and misuse of court resources. However, there was no record of what lies the plaintiffs told the State Court Administrative Office employee who conducted the management oversight review. Plaintiffs attorney, Deborah Gordon, said that to this day, personnel records have no information about what they had allegedly lied about. Gordon said that absence of information made it impossible for the defendants to prove that the women were fired for cause. It s hard to prove a lie if the lie never existed in the first place, she said. At the end of a four-week trial, six of the nine jurors found in favor of the plaintiffs and delivered a $2.2 million verdict. Type of action: Federal civil rights Type of injuries: Loss of employment, embarrassment Name of case: Barachkov, et al. v. 41B District Court, et al. Court/Case no./date: u.s. District court, eastern District of Michigan; 2:04-cV-73957; Jan. 27, 2012 Name of judge: Judge Paul Borman Highest offer: $16,000 Verdict amount: $2.2 million Special damages: economic damages of $508,927 for nancy englar; $455,849 for carol Diehl; and $382,912 for Patricia Barachkov; along with awards of $150,000 for emotional distress and $160,000 in punitive damages for each plaintiff Most helpful expert: Defendant 41B District court chief Judge Linda Davis Attorney for plaintiff: Deborah Gordon Attorneys for defendant: timothy Ferrand, Peter Peacock Key to winning: comparison of the defendant s testimony to that of other witnesses, none of whom could identify the alleged lie that led to the plaintiffs firings #12 Life insurance policy shouldn t have been canceled, widow says Carrier sent late payment notice to decedent, not beneficiaries $2 Million A federal jury concluded that defendant United of Omaha Life Insurance Co. (United) breached its $2 million life insurance contract with plaintiffs Claire Kay and Claymore Construction Co., and in bad faith denied plaintiffs claims for death benefits. GORDON MORGANROTH Dr. Sherman Kay, Claire Kay s husband, was named as the insured under the $2 million United policy. Claire Kay and Claymore Construction were co-owners and joint beneficiaries of the policy. Sherman Kay had paid more than $350,000 in premiums for the policy. Late payments had been made past the grace period over the years, but United still accepted them without the policy being canceled. In August 2008, Sherman Kay had become ill, and Subscribe today at milawyersweekly.com the Kays insurance agent contacted United on the development. After Sherman Kay died Jan. 23, 2009, it was discovered that a premium payment had not been paid for the Dec. 12, 2008, period. Claire Kay sent the payment, which was past the 31-day grace period, on Jan. 30, but United returned it, saying the policy had been paid in full. When Claire Kay subsequently filed a claim for death benefits under the policy, United denied the claim, saying the policy was no longer in effect when Sherman Kay died, because of non-payment of the Dec. 12, 2008, premium. Plaintiffs asserted that defendant failed to send any premium notices or any notice of delinquency to them. In addition, it was argued that notices were sent to plaintiff s decedent, who was neither the beneficiary nor the policy owner, and that Claire Kay s request to United that any notices of late payment be sent to her immediately were unheeded. Also contended was that defendant led plaintiffs to reasonable believe that payments could be made after the expiration of the grace period, and as late as 60 days after the applicable due date, without any lapse in coverage; this was by virtue of defendant s acceptance of seven prior payments made after the grace period. Defendant contended that between Dec. 19, 2008, and Jan. 13, 2009, three premium notices were sent to the address that plaintiffs designated in July The third notice noted that, in order to keep the policy active, payment must be postmarked on or before [Feb. 1, 2009], and during the lifetime of all persons insured under the policy. With interest and attorney fees and costs, the award Type of action: Breach of contract, bad faith Type of injuries: Financial Name of case: Kay, et al. v. United of Omaha Life Insurance Co., et al. Court/Case no./date: u.s. District court, eastern District of Michigan; 09-cV-11887; May 16, 2012 Name of judge: John corbett o Meara Demand: $2 million Highest offer: $100,000 Verdict amount: $2 million Special damages: attorney fees and costs, interest Insurance carrier: united of omaha Life insurance co. Attorney for plaintiff: Mayer Morganroth, Jeffrey thomson Attorney for defendant: James Brenner #13 Parties contend common work area doctrine in construction site fall Comparative negligence for accident is split by Oakland County jury $1,920,126 Though he was found comparably negligent, plaintiff Douglas Latham was awarded compensatory damages by an Oakland County jury, which determined that defendant Barton Malow Co. was 55 percent responsible for injuries Latham sustained in a fall on a construction job site. GARRETT Latham was a carpenter employed by B&H Construction, and was working on the construction of a school. Barton Malow was the construction manager. There were three mezzanines in the project, all approximately 13 feet above the floor. In order to gain access and to unload materials, a single cable barrier around the perimeter of the mezzanine had to be lowered. Latham and a co-worker gained HARRIS access on a man lift, carrying drywall. The single cable had to be taken down to unload their material. As they were unloading the first sheet, the drywall snapped, causing Latham to fall. He was not wearing a fall-protection harness, contrary to jobsite rules of which he was aware. Latham suffered a right ankle fracture, which eventually healed, and a fracture of his left ankle and heel bone, which did not. He underwent left ankle surgery, but it did not help, and arthritic changes soon set in. He has not worked since the accident, and is permanently disabled. After three appeals before reaching a jury trial, ultimately it was held by the Michigan Court of Appeals that there were ample facts to sustain the duty of a general contractor, its breach of same, and the proximate cause of the injury. The issues of fact were whether the mezzanine qualified as a common work area; fall protection was available; and defendant took reasonable steps to ensure that fall protection was used. Plaintiff asserted that defendant knew all along that fall protection was required. It was noted that moments before plaintiff and his co-worker were to raise the man lift and unload their materials, defendant s construction superintendent stopped them and asked to see their operators licenses. He looked at the licenses and walked away. Defendant contended that plaintiff, per the common work area doctrine, had not shown the existence of a high degree of risk to a significant number of workers. The initial jury award was $1,920,126, with comparative negligence assigned at 22.5 percent to the plaintiff and 22.5 percent to plaintiff s employer (a non-party), leaving a final award of $1,118,143, which includes interest to the date of entry of order. Types of action: Personal injury, negligence Types of injuries: Fractured ankles and heel bone Name of case: Latham v. Barton Malow Co. Court/Case no./date: oakland county circuit court; no; May 8, 2012 Name of judge: Michael Warren Jr. Verdict amount: $1,920,126 ($1,118,143 after comparative negligence reduction) Case evaluation: $145,000 Allocation of fault: 55 percent defendant, 22.5 percent plaintiff, 22.5 percent plaintiff s employer (non-party) Most helpful experts: a. David Brayton, certified safety professional, Portage; Dr. Peter Boruta, orthopedics, rochester Hills; robert ancell, vocational rehabilitation, southfield Attorneys for plaintiff: Jon Garrett, Daniel Harris Attorneys for defendant: thomas cardelli #14 Estate uses medical literature to prove its case in med-mal suit Normal resting EKG can t be used to rule out an unstable angina $1.8 Million Plaintiff Lizbeth Logan, serving as personal representative to the Estate of Melvin Logan, sought compensatory damages from defendant Providence Health System and affiliated parties on claims of medical malpractice that led to patient s death. Melvin Logan, a 45-year-old married father working as an elevator maintenance salesman, went to Providence Hospital in Novi with complaints of severe substernal chest pain radiating to his arm and back, with associated nausea. Logan had multiple risk factors for coronary artery disease including obesity, family history, and high cholesterol. He had a normal resting EKG and normal cardiac enzymes on presentation, was given a GI cocktail that reduced his chest pain, and was discharged with a diagnosis of peptic ulcer/gastritis. One month later, while driving home from his son s hockey game, he went into cardiac arrest and died. An autopsy revealed critical stenosis in his coronary arteries. Plaintiff claimed the ER physician at Providence was negligent in her failure to rule out unstable angina as the cause of the patient s chest pain. It was argued that proper ER care for a patient with a potential unstable angina would be to admit the patient for cardiology workup, including cardiac stress testing. Plaintiff established, even through defendant s cardiology expert, that stress testing likely would have been abnormal, and such an abnormal finding would have led to either surgery (bypass or angioplasty and stenting) or pharmacologic therapy. Either approach, it was added, would have saved the patient s life and led to, minimally, a life expectancy of 15 years. Defendants contended that the ER physician acted appropriately in discharging the patient, as the patient had a normal EKG and normal enzymes, and his pain diminished with GI cocktail.

7 Michigan Lawyers Weekly Michigan Lawyers Weekly B7 Plaintiff asserted that a normal resting EKG cannot be used to rule out unstable angina in patients reporting to the ER with severe chest pain. Likewise with normal cardiac enzymes, in as much as unstable angina does not result in infarction, and therefore there will be no abnormal enzyme production. Finally, the ER literature also was replete with references to the fact that, many times, cardiac chest pain/unstable angina patients will experience complete relief of symptoms with GI cocktail, and therefore a clinician cannot rely on such a course to rule out a cardiac cause of a patient s chest pain. The jury found plaintiff to be 20 percent at fault, and the $1.8 million gross award at trial was reduced to $1.2 million after present value reduction and comparative fault calculation. Type of action: Medical malpractice Type of injuries: Death Name of case: Logan v. Providence Hospital, et al. Court/Case no./date: oakland county circuit court; nH; July 16, 2012 Name of judge: shalina Kumar Demand: $200,000 Highest offer: $30,000 Verdict amount: $1.8 million ($1.2 million net verdict after present value reduction and comparative fault calculation) Case evaluation: $300,000 Special damages: 17 years of future wage loss/loss of financial support Allocation of fault: 20 percent plaintiff, 80 percent defendants Most helpful experts: Dr. eric Davis, emergency medicine, rochester, n.y.; Dr. alfred Frankel, emergency medicine, st. Petersburg, Fla. Attorney for plaintiff: s. Jay ahmad Attorney for defendant: William tanoury Key to winning: use of medical literature, particularly tintinalli s emergency Medicine textbook, to establish patient s complaints in the er were consistent with unstable angina and that further cardiac testing and workup were necessary, including admission and stress testing Driver sustains TBI, disabled when officer collides with his car Township: Ordinary care used in pursuit of suspect driving too fast $1.6 Million #15 Plaintiff Carl Mennare sought economic and noneconomic damages from defendant Charter Township of Lansing on claims of third-party auto negligence for injuries sustained in an accident involving a township official. On March 6, 2009, Township police Officer Brett Ramsden was taking his dog out onto the front of his apartment complex on West St. Joseph Highway.He said he saw a speeding yellow car driving at what appeared to be at 70 mph 30 miles over the speed limit and decided to pursue the driver. After letting his dog back into the apartment, Ramsden got into his police cruiser and backed out of the driveway. In the process, he struck Mennare s subcompact car, which was driving on West St. Joseph. Ramsden claimed he could not NOLAN see Mennare s vehicle because a telephone pole and a hedge obscured his vision. Mennare said he could see Ramsden s vehicle and presumed Ramsden would stop at the end of the driveway. Mennare suffered a traumatic brain injury, and experienced constant headaches, as well as light and sound sensitivity. He was not able to return to work an assembly lineman for Tower Automotive, and was permanently disabled. Because the township asserted the motor vehicle exception, MCL , to governmental immunity, the township was the named party instead of Ramsden, who was the original named party in the suit. Defendant argued that Ramsden used ordinary care and that because he was doing his duty to chase a speeding suspect, his actions were excusable. The jury found for the plaintiff and awarded $1.6 million. Type of action: third-party auto negligence Types of injuries: traumatic brain injury, headaches Name of case: Mennare v. Charter Township of Lansing Court/Case no./date: ingham county circuit court; ni; Dec. 4, 2012 Name of judge: William collette Demand: $750,000 Highest offer: $100,000 Verdict amount: $1.6 million Case evaluation: $400,000 Most helpful experts: Dr. Jami newman, family practitioner, Lansing; Dr. ed cook, neuropsychology, Lansing; Dr. roy Meland, psychology, Lansing; Dr. Margaret Fankhauser, physical medicine and rehabilitation, Mason Insurance carrier: trident Attorney for plaintiff: Lawrence nolan Attorney for defendant: John Dolan Key to winning: experts explanation of physical, psychological and neurological effects on plaintiff Continued on page 8 BIG WIN? Report your Verdicts & Settlements online! milawyersweekly.com/submit-verdicts We know fault. f a u t To be successful at litigating catastrophic no fault, requires the skill to know fault. Liss, Seder & Andrews specializes s in catastrophic no fault law. We seek justice without compromise for our clients. And we re willing to pursue it against the largest, most well-funded insurance companies and corporations, ons, as well as their legions of lawyers and experts. It s a worthwhile hile pursuit. In 2012 alone, we successfully litigated 8 cases, each involving compensatory damages of over $1 million. Because we know fault, we also know success. s Woodward Avenue Suite 200 Bloomfield omfield Hills, MI

8 B8 Michigan Lawyers Weekly Michigan Lawyers Weekly Continued from page 7 Firm says money in trust was mishandled Judge: Implied contract existed that defendants were escrow agent $1,546,986 #16 Plaintiff Western American Properties Inc. sought damages from defendants Excel Escrow Services LLC and Excel Title Agency LLC on claims of breach of implied escrow agreement and negligence. In June 2008, Western American, a California-based real estate DOHERTY investment firm, entered into a contract with Michigan-based Metro Equity Group. MEG would acquire 41 residential properties, primarily in California, and sell them to Western American for 50 percent of their market value, or $5.13 million. The contract also provided Western American to place deposit and other money with Excel Title to facilitate the purchase. Western American did not have a contract with Excel Title, nor was there an escrow agreement between the parties outlining the conditions precedent to the transfer of Western American funds. Western American eventually transferred $2,161,736 to Excel Title. While the transaction was pending, the owner of Excel Title formed Excel Escrow and, unbeknownst to Western American, transferred all funds to it. Eventually, only nine of the 41 properties closed. Though it was argued that Excel Title should have returned $1,546,986 to Western American, Excel Title transferred the balance to MEG and its owner. The Excel defendants took the position that they were working on behalf of MEG only, and transferred the funds at its request. None of Western American s money was recovered from MEG or its owner; they were defaulted and were uncollectable. Plaintiff s claims against Excel were based on implied contract and negligence theories. Plaintiff filed a motion for summary judgment arguing that an implied escrow agreement existed whereby defendants were obligated to: 1. Hold plaintiff s money in trust to be disbursed only with plaintiff s consent; 2. Return plaintiff s money upon request; and 3. Not transfer any money to MEG without plaintiff s consent. It also was argued that defendants were negligent when relying solely upon MEG when disbursing. The court granted plaintiff s motion finding an implied contract existed that the Excel defendants acted as an escrow agent. The court relied on the fact that defendants issued earnest money deposits for the nine properties that were purchased and took fees for these services. The court also found that even though there was no escrow agreement between Western American and defendants, the agreement between Western American and MEG sufficiently spelled out why funds were being placed with defendants. It also was reasoned that, having assumed the role as an escrow agent, defendants owed a duty to hold Western American s funds in trust to be disbursed only for the purchase of properties. The court found defendants breached the implied escrow agreement, and were negligent based on their failure to properly disburse the funds. The court rejected the argument that an escrow agent can work for only one side to a transaction, finding that defendants acted at their own peril by following MEG s direction to disburse. The court entered a judgment for $1,546,986, finding the defendants jointly and severally liable. Types of actions: Breach of implied escrow agreement, negligence Type of injuries: unrecovered funds Name of case: Western American Properties v. Excel Escrow Services LLC, et al. Court/Case no./date: u.s. District court, eastern District of Michigan; ; sept. 10, 2012 Tried before: Judge Name of judge: stephen Murphy iii Verdict amount: $1,546,986 Insurance carrier: alterra Attorney for plaintiff: Paul Doherty Attorney for defendant: nathan White #17 Man seeks damages after rear-end crash Defense says not enough damage sustained to auto to cause injuries $1.485 Million Plaintiff Vikin Hannosh sought compensatory damages from defendants Colomon and Elena Varadi on claims of third-party auto negligence. On July 23, 2008, Hannosh was rear-ended by Colomon Varadi at a red light. The lower back injury that Hannosh sustained was a disc herniation that required surgery. Liability was admitted. Defendant had a $100,000 liability policy limit with State Farm Insurance Co., yet at the time of trial, no money was offered. Before the accident, Hannosh had worked as a restaurant manager in Hazel Park, and has been unable to work since. The defense argued that Hannosh s vehicle did not sustain enough damage to cause injury. They further argued that whatever damage did exist could not have been caused by this accident. The jury found for the plaintiff and awarded $875,000 in economic damages and $610,000 in noneconomic damages. Type of action: third-party auto negligence Type of injuries: Lower back injury Name of case: Hannosh v. Varadi, et al. Court/Case no./date: Macomb county circuit court; ni; nov. 20, 2012 Name of judge: Matthew switalski Demand: $100,000 Verdict amount: $1.485 million Insurance carrier: state Farm Attorney for plaintiff: Kevin seiferheld, Joshua terebelo Attorney for defendant: Mark Harder Man s trip-and-fall on wires in yard leads to his spinal trauma Jury says landlord s negligence was proximate cause for accident $1,321,574 #18 A Genesee County jury awarded plaintiff Anthony Dever $1,321,574 in medical and non-economic damages, and determined that defendant Fred Kubik was guilty of common-law negligence. Comcast left unburied cable wires on the yard in front of and around the Dever s rented townhouse, for which Kubik was landlord, creating a trip hazard. Plaintiff asserted that defendant landlord, despite having actual notice of the hazard, failed to do anything about the wires, which plaintiff tripped and fell on while walking to the front door of the townhouse. As a result, plaintiff underwent multiple spinal surgeries to repair a compressed cervical spinal cord; disc protrusions at T4-5; and a lumbar laminectomy/fusion. Plaintiff argued that his pain and suffering, and permanent disabilities have resulted in a greatly diminished lifestyle. Plaintiff asserted that defendant breached his duties to warn, remove or make safe plaintiff s leased premises by allowing a dangerous trip hazard (cable wire) to lay directly in front of and around the entrance to plaintiff s home. Evidence supported the fact that defendant had actual notice of the hazard before plaintiff s accident. Plaintiff also argued that Defendant breached statutory duties found in MCL (b) to keep the premises in reasonable repair. Defendant contended that the condition was open and obvious, and plaintiff s comparative negligence was more than 50 percent. It also was asserted that the settling party s fault (Comcast, which settled for $80,000 prior to trial and was noticed as a non-party for a percentage of fault) was 100 percent. In addition, it was argued that plaintiff s spinal condition was pre-existing; that plaintiff would have needed the surgeries anyway; and that the incident was not a proximate cause of his damages. The jury found that Comcast was negligent but its negligence was not a proximate cause of plaintiff s injury. The jury assessed no comparative against plaintiff, and awarded plaintiff past medical expenses of $51,574, the exact amount of the Medicare lien; $300,000 in past non-economic damages; and $970,000 in future non-economic damages. The future damages will not be reduced to present value because plaintiff is older than age 60. Type of action: Premises liability Type of injuries: compressed spinal cord Name of case: Dever v. Kubik Court/Case no./date: Genesee county circuit court; no; Feb. 9, 2012 Name of judge: archie Hayman Verdict amount: $1,321,574 Case evaluation: $40,000 Most helpful expert: Dr. Vivekanand Palavali, neurosurgery, Flint Insurance carrier: Farm Bureau Attorney for plaintiff: Michael Mangapora Attorney for defendant: charles randau Key to winning: thorough examination of medical expert as to the medical issues involved and expert s ability to translate complicated medical procedures into layman s terms #19 Manager says he was wrongfully terminated It s argued that resolution policy was not followed, and jury agrees $1,205,772 A Bay County jury found that Kraft Foods Global Inc. had breached its issue resolution policy and wrongfully terminated plaintiff Bernard Walsh, awarding him $157,057 in present and $1,048,715 in future economic damages. Walsh had been a Kraft employee for the company s frozen pizza MASTROMARCO division since 1991, and was a district manager for around 12 sales representatives. Each sales representative kept inventory on what mid-michigan, Thumb area and Northern Michigan grocery stores have stocked, and determine how much more will be needed. In 2007, Kraft reorganized the district, and changed the sales representatives and the stores they serviced, but one account the Hillman IGA store had not been transferred into the handheld devices each sales representative used to follow and place orders. When Walsh accompanied a sales representative for quality control purposes, Walsh saw that the sales representative was violating company policy by using a Mackinaw City store s information in place of the Hillman store s, as the former store used the same distributor as the latter. Walsh directed the sales representative to fix the mistake, but the sales representative did not follow through. When the mistake was caught by the company, the human resources manager terminated Walsh. Plaintiff claimed he was accused by the human resources manager of falsifying documents and committed fraud. Walsh asserted that defendant breached its issue resolution policy, as found in the employee handbook s appendix. The argument was that the four-step procedure in matters of termination the last step being arbitration was not followed. It also was asserted that the issue resolution procedure in the district manager s manual was not followed either. Although defense contended that the issue resolution policy did not apply to plaintiff, the company s human resource manager testified that it did, but claimed that plaintiff refused to adhere to the policy. Type of action: Wrongful termination, breach of policy Type of injuries: economic Name of case: Walsh v. Kraft Foods Global Inc. Court/Case no./date: Bay county circuit court; nZ; april 25, 2012 Name of judge: Kenneth schmidt Demand: $300,000

9 Michigan Lawyers Weekly Michigan Lawyers Weekly B9 Highest offer: $70,000 Verdict amount: $1,205,772 ($157,057 present economic damages, $1,048,715 future economic damages) Case evaluation: $300,000 Special damages: interest Most helpful expert: Michael thompson, economist, Bloomfield Hills Attorney for plaintiff: Victor Mastromarco Jr., J. Michael Fordney Attorney for defendant: carolyn Pollock cary, christy Phanthavong (chicago) #20 Woman paralyzed in off-road vehicle crash seeks PIP benefits Little Manistee Route status as publicly maintained is contended $1,067,624 Plaintiff Beverly Duffy sought no-fault PIP benefits from defendant Grange Insurance Co. of Michigan after an accident resulted in quadriplegia. In 2007, Duffy was operating her ATV on the Little Manistee Route in Lake County. She rode over partially buried wood objects that BOYER JR. caused her to be ejected from the ATV. She sustained permanent spinal court injuries. Because ATVs qualified as motor vehicles under the No-Fault Act, Duffy turned in a claim for PIP benefits with Grange. Within hours, it was denied, without any investigation, for the reason that the accident did not occur on a public highway as defined in the Motor Vehicle Code. In 2008, almost a year after the accident, the Michigan Legislature amended the No-Fault Act to exclude off-road vehicles from the definition of a motor vehicle, which would preclude no-fault benefits. It was ruled in Macomb County Circuit Court that the amendment to the statute applied retroactively back to the date of the accident, and defendant s motion for summary disposition was granted. The Court of Appeals reversed, holding that the amendment was not to be applied retroactively, but prospectively. The case was remanded to the trial court for a jury trial. Defendant contended that because the state paid a non-profit business to do some of the physical work on the road, it was not maintained publicly. Plaintiff argued that, because the state of Michigan paid for all the maintenance of the road where the accident took place, it was maintained publicly. The jury awarded plaintiff $1,067,624, which included all damages for allowable expenses, such as medical, mileage and family-provided attendant care, as well as home modifications and a modified van. In addition, the jury awarded $20 per hour in future attendant care. Type of action: no-fault PiP Type of injuries: quadriplegia Name of case: Duffy v. Grange Insurance Co. of Michigan Court/Case no./date: Macomb county circuit court; nF; Feb. 7, 2012 Name of judge: Diane Druzinski Name of mediator: Joseph Lujan Demand: $700,000 Highest offer: $200,000 Verdict amount: $1,067,624 Case evaluation: $465,000 Most helpful experts: Maureen Mccall, case manager, Livonia; charlene combs, occupational therapist, Grand Blanc; Dr. christine chamberlain, physical medicine and rehabilitation, royal oak Insurance carrier: Grange Attorneys for plaintiff: William Boyer Jr., William Boyer sr. Attorney for defendant: stacey King #21 Retaliation was basis for arrests, former 911 dispatcher contends There was no probable cause to have plaintiff detained; jury agrees $1.048 Million Plaintiff Sonte Everson sought damages from defendant Guy Picketts Jr., personal representative of the Estate of Guy Picketts, on claims of retaliation based on exercising her First Amendment rights. Everson, who was working as a 911 dispatcher for the city of Battle Creek, asserted that on Dec. 16, SALVATORE 2004, she was raped by Douglas Graham who was her boyfriend and a former officer with the Battle Creek Police Department. On Sept. 15, 2005, Everson reported the assault to Guy Picketts in his capacity as detective with the Calhoun County Sheriff s Department. Previously, Everson had disclosed the rape to friends, co-workers, and medical professionals. Picketts performed an investigation, and provided his report to the county prosecutor, who declined to file charges against Graham. Everson complained about the investigation to Picketts, his supervisor, and others, alleging that Picketts intentionally falsified a key witness statement and failed to interview all people with relevant information. Picketts denied the charges. He submitted his request for a warrant for Everson s arrest. On May 10, 2007, the charge against Everson was dismissed for lack of evidence. Immediately following the ruling, Everson was rearrested on the same charge of filing a false police report, but the Kalamazoo County prosecutor dismissed the case Feb. 1, Everson was on administrative leave while criminal charges were pending, and left her dispatcher job in 2008 because of the arrests. Picketts had argued that there was probable cause to believe Everson had committed the crime. The alleged witness was a former friend of Everson who, plaintiff argued, had a known motive to discredit Everson, which rendered the witness untrustworthy. The jury awarded plaintiff $108,000 in past economic damages, $340,000 in future economic damages, $300,000 in non-economic damages, and $300,000 in punitive damages. Type of action: section 1983 First amendment retaliation Types of injuries: emotional distress, reputational harm, lost wages and benefits Name of case: Everson v. Picketts Court/Case no./date: u.s. District court, Western District of Michigan; 1:08-cV-859; aug. 20, 2012 Name of judge: robert Jonker Verdict amount: $1.048 million Attorneys for plaintiff: Jennifer salvatore, edward Macey Attorneys for defendant: Patrick aseltyne, James Dyer #22 Contractors lawyer sued by attorney on claims of defamation Exemplary damages awarded as plaintiff is called aider and abettor $1 Million Plaintiff Jack Buchanan Sr. sought damages from defendant Kenneth Walters on claims of defamation and malicious prosecution. Buchanan, a Grand Rapids attorney, co-owned a former Lear building in Walker, which his son, Jack Buchanan Jr., along with businessman Joseph Peters were developing into the Hangar42 movie studio. Walters, a Portage attorney, represented contractors who Three estates pursue damages after Lake St. Clair accident Barge abandoned after job; boat hits it, killing plaintiffs decedents $7.5 Million Plaintiffs Sundus Goodman, personal representative of the Estate of Sawsan Bell; Dan Patterson, personal representative of the Estate of Kathleen O Neill; and Dena Hamilton, personal representative of the Estate of Joseph Hamilton Jr. sought damages on claims of wrongful death against defendants Shepard Marine, Shepard Marine Construction Co. and Shepard Marine Construction Co. Inc. The barge had been part of a dredging operation in the canals of a waterfront subdivision on Lake St. Clair. After receiving payment for the project, defendants abandoned the barge, with improper lighting, at the opening of a harbor. A boat containing plaintiffs decedents struck the barge, resulting in their deaths. After other represented defendants to the lawsuit were dismissed, Macomb County Circuit Court Judge Richard Caretti ordered a $7.5 million default judgment against the three remaining unrepresented defendants (Shepard). Type of action: Wrongful death Name of case: Goodman, et al. v. Shepard Marine, et al. Court/Case no./date: Macomb county circuit court; no; aug. 13, 2012 Tried before: Judge Name of judge: richard caretti Default judgment amount: $7.5 million Attorneys for plaintiff: B.a. tyler, Gary Blumberg, David Griem Attorney for defendants: n/a weren t paid for their work at the site, and filed a $2 million lawsuit. In that suit, it was contended that Jack Buchanan Sr. was an aider and abettor, and was conspiring with Jack Buchanan Jr. and Peters to defraud the state of Michigan out of a $10 million tax credit by inflating the value of the building. The lawsuit was reported widely in the local media upon its filing, and Jack Buchanan Jr. and Peters faced criminal charges. The charges were dismissed when there was insufficient evidence of fraud or misstatement over the building s value, and the contractors lawsuit also was dismissed. In his complaint, plaintiff said Walters improperly abused the civil litigation process for the purpose of causing vexation, humiliation, embarrassment and damage to Jack Sr. s community reputation in order to coerce him to pay the unpaid bills of defendant s clients even though he had no obligation to do so. In his testimony, Walters said that he knew Jack Buchanan Jr. was broke and uncollectible, and, according to Judge Mark Trusock s oral opinion, left a clear indication that if anyone was going to be collected, it would be Mr. Buchanan Senior. In his ruling, Judge Mark Trusock determined that there was defamation per se and malicious prosecution, and that damages to Jack Buchanan Sr. s reputation would continue into the future. Trusock awarded Buchanan $1 million in exemplary damages. Type of action: Defamation, malicious prosecution Type of injuries: Damaged reputation Name of case: Buchanan v. Walters Court/Case no./date: Kent county circuit court; nZ; sept. 24, 2012 Tried before: Judge Name of judge: Mark trusock Verdict amount: $1 million Attorney for plaintiff: Lee silver Attorney for defendant: Kenneth Walters SILVER

10 B10 Michigan Lawyers Weekly Michigan Lawyers Weekly #1 Class action says cash value, depreciation methods were wrong Loss values in plaintiffs policies improperly calculated by insurer approximately $22.5 Million Plaintiffs Ronald Carter and Jose Jiminez, on behalf of themselves and all others similarly situated, reached a settlement with defendant Allstate Insurance Co. on two related property-loss classaction cases pending in federal court in Michigan and state court in Illinois. Plaintiffs asserted that Allstate was improperly calculating the THOMPSON loss values in homeowners insurance policies, including calculating actual cash value and depreciation amounts. Allstate denied any wrongdoing and pointed to a variety of acceptable options for making the necessary calculations. The parties agreed to a 38-state class-action settlement going back 10 years. The settlement calls for FABIAN Allstate to increase the amounts paid to class members who qualify for the class and who attest to the errors they believe were made when valuing their homeowners claims. Due to the claims process, the total amount of the settlement will vary based on the values of the class members who participate; plaintiffs estimate that the total payout with fees could be approximately $22.5 million dollars. There KING is no cap on the total settlement amount, and the final value of the settlement has not yet been determined. Allstate will pay the full value of the settlement claims that are submitted and approved. Type of action: Breach of contract for reduction of loss settlement for claims made against residential fire insurance policies Type of injuries: Monetary Name of case: Carter and Jimenez, et al. v. Allstate Insurance Co. Courts/Case nos./date: united states District court, eastern District of Michigan and circuit court of cook county (illinois); 4:07-cv (e.d. of Michigan), 02 ch (cook county); november 2012 Names of judges: stephen Murphy iii (e.d. of Michigan), Kathleen Pantle (cook county) Settlement amount: approximately $22.5 million Attorneys for plaintiff: Jason thompson, Lance young, Michael Fabian, Patrick King (all of Michigan); edward Wallace, Mark Miller (chicago) Key to winning: efforts to identify a multistate class and fair method of approximating losses for damage computation and settlement purposes #2 Class-action suit says unsolicited fax sent out to 3,000-plus numbers It s asserted Telephone Consumer Protection Act violated by company $1.587 Million In a federal class-action suit, plaintiff Avio Inc., on behalf of itself and all others similarly situated, sought damages against defendant Creative Office Solutions Inc. on claims of receipt of an unsolicited junk fax pursuant to the Telephone Consumer Protection Act, 47 U.S.C Based upon discovery and and damages phases; and decertification of the class. computer analysis of fax transmission records, plaintiff contended sue in the summary disposition motions, and defeated Plaintiffs prevailed on almost every legal point at is- that, on June 16, 2006, defendant s the city s motions for a pretrial proof-of-claim requirement and bifurcation of trial. one-page form advertisement was sent unsolicited to 3,258 Michigan After the city filed additional appeals, in early 2012, businesses fax numbers. Plaintiff the Supreme Court denied leave to appeal in part, and contended that there was not a prior business relationship between Cite 26 Mich.L.W. 691 sideration of a statute of limitations question January 7, 2013 involving remanded the case back to the Court of Appeals for con- Cite 26 Mich.L.W. 691 January 7, 2013 any of the businesses and Creative the continuing wrongs doctrine. Office Solutions. Classifieds Before the remanded questions and the pending claim THOMPSON The parties agreed to a $1.587 of appeal could be heard, the case settled for $1.42 million. million settlement, wherein the owner of each phone number the fax was sent successfully to will receive a Types of actions: class action for trespass-nuisance, constitutional taking, cash payment of $305. violation of due process Type of injuries: Property damage Type of action: Junk fax pursuant to the telephone consumer Protection act Name of case: Carlson, et al. v. City of Warren of 1991 Court/Case no./date: Macomb county circuit court; cZ; Name of case: Avio Inc. v. Creative Office Solutions Inc. oct. 9, 2012 Court/Case no./date: united states District ALTERNATIVE ALTERNATIVE court, eastern District of Names DISPUTE DISPUTE of judges: Matthew switalski, RESOLUTION RESOLUTION James Biernat sr. Michigan; 2:10-cV-10622; Dec. 10, 2012 ALTERNATIVE DISPUTE Facilitator: ARBITRATION/MEDIATION Jon Muth ARBITRATION/MEDIATION Name of judge: Victoria roberts ALTERNATIVE DISPUTE ARBITRATION/MEDIATION RESOLUTION ARBITRATION/MEDIATION Settlement amount: $1.42 million Bryan H. Levy served for over 15 years Settlement amount: $1.587 million RESOLUTION Bryan as a judge H. Levy of the served 46th District for over Court, 15 years the Most helpful experts: robert cool, forestry, as majority a Lansing; judge of of which the Paul 46th as Bladdick, chief District judge. Court, During the Most helpful expert: robert Biggerstaff, computer forensics, Mount majority that time, of he which presided as chief over judge. thousands During of plumbing, White Lake township that civil time, cases. he Understanding presided over thousands the need of to Pleasant, s.c. civil manage cases. the Understanding civil docket, the need helped to Attorneys for plaintiffs: Gerard Mantese, manage counsel stuart to Fraser the negotiate civil iv, Brian docket, and settle saxe he the helped vast Insurance carriers: citizens, Hanover counsel majority to of negotiate those cases. and settle He the is now vast Attorney for defendant: John Gillooly majority specializing of solely those in cases. the field He of is mediation/facilitation solely and in arbitration. the field of media- now Attorneys for plaintiff: Jason thompson (southfield); Brian Wanca (rolling specializing Tom is recognized as one of The tion/facilitation and arbitration. Meadows, ill.) Tom Best is Lawyers recognized in America as one of for The his Mr. Levy strongly believes he can assist Experie Best ADR Lawyers work and in by America Michigan for Super his Mr. counsel Levy and strongly parties believes in saving he time, can assist effort Experie hear a Attorney for defendant: christopher Jelinek An experienced trial Judge ADR Lawyer work as and a commercial by Michigan litigator. Super counsel and money. and parties In in addition saving time, to effort the hear traditioa An experienced trial Judge Lawyer as a commercial litigator. and money. In addition to the traditio (retired) who can assist you He has mediated over 250 federal experience of serving as a judge, binding experience of serving as a judge, he (retired) who can assist you He has mediated over 250 federal has completed 40 hour courses in mediation under MCR AND in medi- and and state cases. has completed 40 hour courses #4 binding statewide in resolving cases and state cases. statewide through mediation, in resolving facilitation cases ation is under the Oakland MCR County AND lists of and civil AAA tra Experienced Attention to Detail is on the Oakland County lists of civil AAA tra through or arbitration. mediation, facilitation Experienced Attention to Detail mediators and case evaluators. Sense of Humor mediators and case evaluators. Reason or arbitration. Mediation Sense Tailored of To Humor Your Dispute. #3 747 Ardmoor 747 Ardmoor Residents seek relief (248) (248) after city-planted trees damage their property 12-year lawsuit mired in EMPLOYMENT EMPLOYMENT appeals AVAILABLE AVAILABLE over whether class status holds $1.42 Million Thomas W. Brookover Thomas W. Brookover Bloomfield Hills, MI Bloomfield Hills, MI tombrook@aol.com tombrook@aol.com (Office also in Grayling) (Office also in Grayling) Attorney needed for busy Attorney Plaintiff Timothy Carlson, Bloomfield needed representing all other similarly situ- defense experience firm. with Two Michigan to three years No- Hills for insurance busy Bloomfield defense firm. Two Hills to three insurance years ated people, sought damages from experience Fault and general with negligence Michigan No- law defendant city of Warren, alleging Fault necessary. and general Fax resume negligence to Office law claims of trespass-nuisance, necessary. Manager constitutional taking, and violation of at Fax (248) resume to Office Manager at (248) due process after city-owned trees damaged residents property. New position In the 1950s and 1960s, the New city position MANTESE planted fast-growing trees, including silver maples, on the portion to fill? of to fill? residents properties between the street and sidewalk. Because of the trees highly aggressive root system, homeowners sustained clogged and broken sewer pipes, damaged lawns, broken sidewalks, and sewer backups into their homes. Many homeowners sought to Office space mitigate their damages by having Office space the nuisance trees removed, but SAXE the city s ordinance made it illegal to do so, effectively for lease? for lease? barring residents from engaging in self-help. A suit was filed in May The circuit court initially denied class certification to plaintiffs, finding there were too many individualized issues to warrant a class action. The ruling was reversed by the Court of Appeals, then reversed again by the Michigan Supreme Court. When plaintiffs demonstrated that common issues of law and fact predominated, the Equipment Equipment circuit court in 2004 certified the case as a class action. The city then appealed to the Supreme Court, which to sell? remanded the case to the Court of to Appeals sell? to determine whether the decision of Pohutski v City of Allen Park, 465 Mich 675 (2002) which abolished the trespassnuisance cause of action except in existing cases, and was decided two years after this suit was filed affected the circuit court s ruling. The Court of Appeals upheld the class certification, and also found that the case would retain the benefit of the pre-pohutski exception to governmental Call to place Call immunity to place for trespass-nuisance. In 2010, the city filed motions seeking: summary an ad today! disposition of plaintiffs claims on seven different an ad grounds; today! imposition of a mandatory pretrial proof-of-claim procedure; bifurcation of the trial into separate liability UIM Mediation Tailored policy To Your Dispute. disputed Serving Western and Northern Serving Western Michigand Northern Michigan by Thomas a class F. Koernke of 135,000 Koernke Thomas & Crampton, F. KoernkeP.C. Koernke Offices in & Crampton, Grand Rapids P.C. Reduction clause is contended, Offices (616) in Grand Rapids Tkoernke@grandlaw.com (616) meant no benefits with other policy Tkoernke@grandlaw.com $1,156,125 In a class-action lawsuit filed in federal court, Roxanne Everett, on behalf of herself and similarly situated plaintiffs, sought damages from defendants Bristol West Insurance Co. and Bristol West Preferred Insurance Co. on claims of illusory underinsured motorist coverage. Plaintiffs argued that the UIM ALEXANDER policy would never provide a benefit because the policy language included a reduction clause when used with other insurance. Defendants argued plaintiffs had no damages and that if hit by another driver carrying less than $20,000 in coverage (i.e., from other states), then a recovery would occur. A settlement was reached in which approximately 135,000 purchasers of the UIM coverage would benefit. Defendants agreed to put 75 percent of the premiums collected over the last six years into a settlement claims fund amounting to $922,500. In addition $230,625 would be paid in attorney fees, and a $3,000 incentive award to the class representative also was granted. Type of action: class action Type of injuries: return of premiums for insurance Name of case: Everett, et al. v. Bristol West Insurance Co., et al. Court/Case no./date: u.s. District court, eastern District of Michigan; 2:10- cv-11827; June 7, 2012 Name of judge: arthur tarnow Settlement amount: $1,156,125 Attorney for plaintiff: John t. alexander Attorney for defendant: Lori Mcallister 75% of our readers refer cases 75% of our readers refer cases to other attorneys every year. to other attorneys every year. 75% of our readers refer cases Become part of this valuable community. Become to other part of attorneys this valuable every community. year. B grandlaw.com Bryan H. Levy Bryan Telegraph H. Levy Rd Ste Bingham Telegraph Farms, Rd MI Ste Bingham (248) Farms, MI Fax: (248) (248) bhlevy@levypc.com Fax: (248) bhlevy@levypc.com LAWYER LAWYER Advertise in the Advertise in the MICHIGAN LAWYERS WEEKLY MICHIGAN LAWYERS WEEKLY L Lawyer Lawyer to to Lawyer Lawyer Referral Referral Directory Directory C Call Call and let colleagues know about and let colleagues know about your area of expertise. your area of expertise. Reason and ho and ho la ww la ww

11 Michigan Lawyers Weekly Michigan Lawyers Weekly B11 Shareholders claim oppression, breach of fiduciary duty Owners of 25% of business say they received less than 1% profits $13 Million Plaintiff shareholders sought financial damages from defendants Michigan corporations, LLCs and shareholders on claims of shareholder oppression and breach of fiduciary duty. Plaintiffs owned 25 percent of a manufacturing company. After years of receiving less than 1 percent of the profits, they brought suit, alleging that the defendant shareholders, who owned 75 percent of the business, had acted as a control unit and had diverted corporate opportunities to expand the business. They also alleged that the defendants had paid themselves excessive compensation. Plaintiffs counsel cited thorough depositions; meticulous review of thousands of financial documents; a strong opening statement with embedded video clips of key admissions; and rigorous trial preparation, including client direct examinations, as keys to winning. After plaintiffs key witness testified on the fifth day of the jury trial, the matter settled for $13 million. MANTESE ROSSMAN #1 WILLIAMSON Types of actions: shareholder oppression, breach of fiduciary duty, usurpation of corporate opportunities Types of injuries: Loss of stock value, financial damages Court/Case no./date: confidential; confidential; nov. 29, 2012 Settlement amount: $13 million Attorneys for plaintiff: Gerard Mantese, Mark rossman, ian Williamson #2 Communication failure reason for brain damage Doctors accused of negligently delaying diagnosis of internal bleed $9 Million In a medical malpractice action, plaintiff alleged that the defendants negligently delayed diagnosing and treating a splenic artery bleed leading to hypovolemic shock, cardiac arrest and consequent brain damage. The patient had suffered a recent bout of pancreatitis due to a pattern of alcohol consumption. He had recently undergone a surgical procedure to drain pancreatic pseudo cysts with placement of pancreatic drains. On June 14, 2007, patient awoke feeling lightheaded. After he nearly fainted, his mother called the offices of his surgeon and was instructed by a nurse to take him to the emergency department of the defendant hospital where he was on staff. The surgeon later testified that he was unaware of this call. The patient complained of pain near the side of his surgical drain and demonstrated tachycardia but had a normal blood pressure. He was evaluated by an ER physician who ordered lab tests based upon a clinical impression of sepsis. His initial lab work revealed a hemoglobin at the lower limit of normal. A surgical consultation was requested. At 10:40 p.m., a surgical resident evaluated the patient and ordered a CT scan of the chest and abdomen. The resident did not notify the patient s private attending surgeon that his patient was in the hospital. Over the course of the evening the patient remained tachycardiac. Subsequent labs revealed falling hemoglobin indicative of internal bleeding. On June 15 at 1:30 a.m., a radiology resident reviewed the CT scan. The radiology resident then called the surgical resident and informed her that the study showed an active extravasation of blood from the splenic artery. This was not reported to the patient s private attending surgeon. Meanwhile, the patient was admitted to the floor and continued to show evidence of internal bleeding. Following a brief period of resuscitation, he regained consciousness but still no steps were taken to control the bleeding. By 6:34 a.m., the patient s abdomen was distended as a consequence of his internal bleeding, but no one called the attending surgeon. At 8:50 a.m., the patient arrested before interventional radiology consultation was completed. By matter of pure happenstance, his attending surgeon who was in the hospital responded to the code. It was not until then that he discovered his patient had been in the hospital since the previous afternoon. Although the patient was eventually resuscitated he suffered massive brain damage manifested by spastic quadriperesis and severe expressive aphasia. The matter settled for $9 million. Type of action: Medical malpractice Type of injuries: Brain damage Court/Case no./date: confidential; confidential; June 20, 2012 Settlement amount: $9 million Most helpful expert: Dr. Karen Jubanyik-Barber, emergency medicine; new Haven, conn.; scott Pugh, nursing expert, Warren; Mary LaBeske, nursing expert, ypsilanti; Dr. Frank Brodkey, icu expert, Janesville, Wis.; Dr. a.r. Moossa, surgery expert, La Jolla, calif.; robert ancell, vocational rehabilitation, southfield Attorneys for plaintiff: Brian McKeen, Lynn Foley, eileen Kroll #3 Detained mother was not taken to hospital When contractions began, nearly 2 hours passed before treatment $8 Million Howard Linden, conservator of plaintiff s minor, sought compensatory damages against defendant Wayne County and several police deputies, sergeants and nurses. It was contended that defendants violated plaintiff s minor s constitutional rights under the Fifth and 14th amendments, as FIEGER well as the Civil Rights Act 1983, for not getting her mother to a hospital for the delivery. In December 1998, plaintiff s minor s mother, a pregnant pretrial detainee, was awaiting trial and incarcerated at Wayne County Jail. On or about Dec. 2, 1998, she was diagnosed with pre-term labor at the jail and was taken to Hutzel Hospital, and was released two hours later. Upon return to jail she was 2-3 cm dilated and having contractions. She was placed in her locked cell, unmonitored. There was no deputy or nurse within sight or sound of the mother. Her water broke and her contractions increased. Despite her screams, it took almost two hours before she could get any medical treatment. By the time a nurse came, the baby was crowning. It was alleged that the nurses made the mother sit on the baby s head while they transported her from the cell. It was further argued that the nurses failed to even perform a basic assessment of the mother, and the baby remained crowning until EMS came to the facility and delivered the baby. From the time mother and baby were shipped back to the jail at or about midnight Dec. 3, there was no documentation and no deposition testimony that any one of the defendants ever did anything to evaluate or care for mother or baby. The child suffered brain damage and is severely impaired. The matter settled for $8 million with only Wayne County as the named party. Types of actions: constitutional and civil rights violations Type of injuries: Brain damage and severe impairment of plaintiff s minor Name of case: Linden, et al. v. Wayne County, et al. Court/Case no./date: u.s. District court, eastern District of Michigan; ; nov. 9, 2012 Name of judge: stephen Murphy iii Settlement amount: $8 million Attorneys for plaintiff: Geoffrey Fieger (southfield), Lisa Weinstein (chicago) Attorney for defendant: Paul Manion #4 Pre-natal care doctor s status is under dispute Defense claims obstetrician wasn t an ostensible agent of the hospital $7.5 Million Plaintiff conservator, on behalf of plaintiff s minor, sought damages from defendants hospital, nurses and hospital residents on claims of birth trauma and medical malpractice. It was argued that, unbeknownst to the baby s mother, the obstetrician from whom she had FIEGER been receiving pre-natal care had lost his hospital privileges and could not admit or deliver any patients at the hospital. Shortly before the mother went into labor, the pre-natal obstetrician gave the mother a prescription for induction with Pitiocin and the name of another obstetrician, who she had never met, but who had privileges to admit and deliver at defendant hospital. When the mother arrived at the defendant hospital for labor and delivery the residents and nurses started her on Pitocin. Over the next hours the electronic fetal heart monitor became non-reassuring. However, the hospital was short-staffed, and the mother and baby in utero had not been assigned any labor and delivery nurses. Eventually there were multiple variable decelerations and late decelerations that appeared on the baby s fetal monitor tracing. A hospital-employed obstetrician performed an emergency Caesarian section. An arterial cord blood gas performed at birth resulted in a ph of 6.63 and a base excess of -31. As a result of hypoxic ischemic hypoxia, the baby suffered cerebral palsy and brain damage. The defendant hospital moved for partial summary disposition, claiming that the prescription obstetrician, who showed up at the hospital only after the C-section started, was not an ostensible agent of the hospital. The trial court denied defendant s motion, concluding that it was a jury question. The case settled for $7.5 million. Type of action: Medical malpractice, birth trauma Type of injuries: cerebral palsy, brain damage Court/Case no./date: confidential; confidential; aug. 16, 2012 Settlement amount: $7.5 million Continued on page 12 BIG WIN? Report your Verdicts & Settlements online! milawyersweekly.com/submit-verdicts

12 B12 Michigan Lawyers Weekly Michigan Lawyers Weekly Continued from page 11 Attorneys for plaintiff: Geoffrey Fieger (southfield), Doug raymond (Boulder, colo.) #5 3-month-old quadriplegic after malrotation surgery Experts: X-rays show kink was in catheter, put in wrong position $7.125 Million Plaintiffs co-conservators for plaintiff s minor sought compensatory damages from two defendant hospitals on claims of medical malpractice resulting in quadriplegia. Plaintiff s minor, a 3-month-old, underwent surgery for malrotation, a type of obstruction caused by abnormal development of her CUNNINGHAM intestines. After surgery, it was asserted that the surgeon failed to appropriately place a Broviac catheter in the child s left saphenous vein and ensure proper placement before starting total parenteral nutrition (supplying the body s nutritional needs by bypassing the digestive system and dripping nutrient solution directly into a vein). Instead, the catheter was inserted GROFFSKY into the epidural space of the spine. In addition, plaintiffs claimed that the radiologist failed to properly read and interpret the abdominal X-rays taken post-catheter placement to ensure proper placement. Radiology had read the X-rays as being normal. Plaintiffs radiology experts interpreted the X-rays as showing a kink in the catheter, and that it was in the wrong position. This caused ischemia of the spinal canal, causing permanent neurological damage, including quadriplegia and a neurogenic bladder (loss of bladder control). In addition, it was argued that the second hospital the child was transferred to, delayed diagnosing the catheter in her spine (taking 36 hours to do so) and delayed removing it. The matter settled for $7.125 million. Type of action: Medical malpractice Type of injuries: Quadriplegia Court/Case no./date: saginaw county circuit court; confidential; sept. 17, 2012 Tried before: Facilitation Name of facilitator: richard Kaufman Settlement amount: $7.125 million Attorneys for plaintiff: Michael cunningham, richard Groffsky Baby suffers severe neurological injury Plaintiff: Earlier C-section should have been ordered, performed $6 Million #6 In a birth trauma action alleging medical malpractice at and around the time of delivery, plaintiff s minor, by and through his conservator, sought compensatory damages for severe and permanent neurological injury. It was asserted that the defendants a team of attendants, residents and nurses ignored signs of fetal distress for more than seven hours, then rushed the mother down the hall with such urgency that she was cut open, screaming, without general anesthesia. At birth, the baby s umbilical cord was wrapped tightly three times around the neck. She had Apgar scores of 0, 0, 0, and had to be transferred to another facility at three hours life for further care. Other contended complications included misuse of Pitocin, hyperstimulation, heavy meconium and arrest of labor. Plaintiff argued that an earlier C-section should have been called and performed. For 16 minutes prior to the birth, the doctors and nurses could not find the baby s heartbeat. It was not until 9 minutes after delivery that the child had a heartbeat again. Plaintiff s minor is a spastic FIEGER quadriplegic with cerebral palsy, brain damage and mental retardation. She will never walk or talk, and will require 24-hour attendant care for the rest of her life. In discovery, the defense experts offered multiple causation theories. The matter settled for $6 million. Type of action: Medical malpractice, birth trauma Types of injuries: spastic quadriplegia, cerebral palsy, brain damage, mental retardation Court/Case no./date: confidential; confidential; March 23, 2012 Settlement amount: $6 million Attorneys for plaintiff: Geoffrey Fieger (southfield), Jack Beam (chicago) #7 Plaintiff: Classic signs of trouble in aging pregnancy were shown It s argued that hospital didn t properly evaluate mother earlier $5.925 Million In a confidential lawsuit, plaintiff s minor, by and through his conservator, sought compensatory damages from defendant OB/GYN and defendant hospital on claims of birth trauma and medical malpractice. On Aug. 21, 2008, five days before delivery and nine days past FIEGER due date, the mother went to the hospital because she thought her membranes had ruptured and she was having regular contractions. Although some leakage of amniotic fluid along with regular contractions were documented, she was sent home. Four days later, the mother was sent by the OB/GYN for Pitocin induction for post-dates (42 weeks) delivery of her only child. The mother was in labor in defendant Hospital for almost 32 hours before the OB/GYN ever appeared at bedside. For six hours on the day of delivery, Aug. 26, it was contended that no one showed up to evaluate the decelerations of the baby s fetal heart and the hyperstimulation of the uterus, with Pitocin negligently infusing at full throttle by a licensed practical nurse. Upon delivery, the baby had to be resuscitated. The child suffered brain damage, microcephaly (small head), cerebral palsy and developmental delays. Plaintiff argued that, unlike many birth injury cases, the lost window of opportunity to deliver a healthy baby did not begin on the day of delivery, but rather days before plaintiff s minor was born. As a result, it was added, the defendant hospital let the mother go so far past the due date. Further, it was argued that, if the defendant hospital had properly evaluated the mother and her unborn baby Aug. 21, proper care and treatment would have been administered, and there would have been no brain damage. The matter settled for $5.925 million. Type of action: Medical malpractice, birth trauma Types of injuries: Brain damage, microcephaly, cerebral palsy, developmental delays Court/Case no./date: confidential; confidential; May 9, 2012 Settlement amount: $5.925 million Attorneys for plaintiff: Geoffrey Fieger (southfield), Doug raymond (Boulder, colo.) #8 Pitocin misuse alleged in birth trauma action Defense says child had unknown, unidentifiable infection at gestation $5.5 Million In a confidential lawsuit, plaintiff s minor, by and through his conservator, sought compensatory damages from defendant medical team on claims of birth trauma and medical malpractice. Plaintiff alleged standard of care failures in the misuse of Pitocin; hyperstimulation; failure to administer antibiotics in a Group B FIEGER streptococcal-positive mother; non-reassuring fetal heart rate pattern; arrest of descent and protraction disorder; and a double instrumented delivery. It was argued that the physicians and nurses ignored all the evident signs that the baby in utero was too big to fit through the maternal pelvis. After hours of fetal distress, the medical team considered performing a C-section, but never acted on it. Stuck in the birth canal, the plaintiff was first pulled with forceps. When that failed, the obstetrician used a vacuum extractor and pulled with such force that there is now a permanent circular scar on top of the baby s head. At birth, the baby was documented to have severe hypoxic ischemic encephalopathy, seizures and trauma, including obvious and visible lacerations, abrasions and swelling on his face and head. At birth, the baby was apneic and floppy with poor respiratory efforts, requiring tracheal suctioning, oxygen stimulation and positive pressure ventilation with bag and mask. The baby suffered from 2 separate mechanisms of injury: hypoxic-ischemic encephalopathy and trauma. The defense theorized that the child suffered from an unknown, unidentifiable infection that caused all of his brain damage at an uncertain time in early gestation. The matter settled for $5.5 million. Type of action: Medical malpractice, birth trauma Type of injuries: Brain damage Court/Case no./date: confidential; confidential; nov. 5, 2012 Settlement amount: $5.5 million Attorneys for plaintiff: Geoffrey Fieger (southfield), Jack Beam (chicago) #9 (tie) Standard of care under dispute in trauma suit Mother should have been admitted to hospital based on her condition $5 Million Plaintiff next friend to plaintiff s minor sought compensatory damages from defendant hospital and defendant medical staff on claims of medical malpractice and birth trauma. On Sept. 10, 2004, at approximately 20 weeks gestation, the mother was sent for an ultrasound. The ultrasound showed a velementous cord insertion with vasa previa conditions that, when combined, create a greater risk of

13 Michigan Lawyers Weekly Michigan Lawyers Weekly B13 delivering preterm and morbidity to the child. A subsequent ultrasound conducted by the defendant obstetrician a month later confirmed vasa previa with velamentous insertion, as well as a shortened cervix. The mother was placed on a fetal monitor and was noted to be contracting. The contractions subsided two days later, and she was discharged home for bed rest. Plaintiff contended that discharging a patient home who presented preterm with such conditions was below the standard of care. On Dec. 21, the mother s membranes spontaneously ruptured at home, and she began bleeding heavily. She was immediately taken to the labor and delivery triage at defendant hospital. The mother was rushed to the operating room by defendant obstetrician for a STAT C- section. Plaintiff minor was delivered stillborn at 33 weeks gestation. MCKEEN The baby was suctioned, bagged with oxygen, intubated and admitted to the NICU, where he remained for 31 days. Plaintiff minor s discharge diagnosis included respiratory distress syndrome; transient thrombocytopenia; severe asphyxia; hypoxic ischemic encephalopathy; seizure disorder; hypotension; anemia; gastroesophageal reflux; and hypocalcemia. The case settled for $5 million. Type of action: Medical malpractice, birth trauma Type of injuries: cerebral palsy, spastic quadriplegia, seizure disorder, cognitive impairments Court/Case no./date: confidential; confidential; oct. 22, 2012 Settlement amount: $5 million Most helpful experts: Dr. Michael Berke, obstetrics, Bloomfield Hills; Dr. carolyn crawford, neonatology; Michael thompson, economics, Bloomfield Hills Attorney for plaintiff: Brian McKeen #9 (tie) Insurer denies payout for claims-made policy Carrier contends claim not first made, occurred in earlier period $5 Million Plaintiff policyholder sought policy benefits from defendant insurance carrier for its claims-made insurance policies. Plaintiff was a company insured under a series of annual claims-made liability insurance policies. The company had been in litigation with a customer for several years over a contractual dispute. The company did not tender a claim to its insurer at the time of the commencement of the breach of contract litigation, because of an exclusion for claims arising from breach of contract. Subsequently, the customer amended its complaint to allege that the company also was negligent in its handling of the customer s account. The company/policyholder then tendered this amended complaint to defendant liability insurer under its then-in-effect claims-made liability insurance policy. The insurer denied the claim based upon two common conditions found in most claims-made insurance policies: the claim was not first made against the insured and reported to the insurer during the policy period; and the claim was deemed to have occurred in an earlier policy period of a different claims-made insurer. A typical deemer clause provides that subsequent claims that relate to an earlier claim are deemed to be first made at the time of the earliest related claim. The Court granted the policyholder s motion for partial summary disposition ruling that the earlier event (the breach of contract suit) was not a claim as defined by the insurance policy, and the later amended complaint (claim) could not relate back to this earlier event. The case was subsequently settled at mediation for the full insurance policy limit of liability of $5 million. Type of action: insurance coverage Type of injuries: Denial of coverage for a loss under its claims-made liability insurance policy Court/Case no./date: confidential; confidential; april 12, 2012 Tried before: Mediation Name of mediator: Withheld Settlement amount: $5 million Attorney for plaintiff: Douglas young Key to winning: thorough understanding of claims-made insurance policies and insurance company underwriting/claims-handling practices Member of LLC says transactions by other were not authorized Plaintiff claims assets improperly diverted; 50% interest is awarded $4.975 Million #11 A business dispute between the two members of Northville Crossing Venture LLC, a Michigan limited liability company, was resolved in Oakland County Circuit Court. The Venture was owned by plaintiff Salem Land Associates Limited Partnership and defendant KM Eight Mile Operating PLUNKETT Limited Partnership, with each owning 50 percent of the Venture. Plaintiff Venture, through Salem, brought derivative claims against KM and its affiliates, alleging that KM engaged in unauthorized related party transactions to its singular benefit, which improperly diverted the Venture s assets. It was noted that the Venture s RASSEL operating agreement and the Michigan Limited Liability Company Act prohibit a member of an LLC from authorizing transactions on the LLC s behalf, in which the member would directly or indirectly benefit unless the transaction is disclosed to and approved by the other member. Plaintiffs alleged that KM authorized numerous related party transactions to its benefit on behalf of the Venture without disclosing such transactions to Salem and without obtaining Salem s approval. It also was asserted that KM breached the Venture s operating agreement through its creation of and participation in a web of systematic, related party transactions that harmed the Venture. KM and its affiliate defendants denied liability, claiming that the nature of the Venture s derivative claim was improper, and that the claims of the Venture and Salem were barred by laches and acquiescence in the disputed conduct. KM countersued for damages associated with bringing the lawsuit. The case settled after mediation/facilitation through the sale of Salem s 50 percent interest in the Venture to an affiliate of KM for $4.975 million. Type of action: Breach of fiduciary duties Type of injuries: Money damages Name of case: Northville Crossing Venture LLC, et al. v. KM Eight Mile Group Inc., et al. Court/Case no./date: oakland county circuit court; cK; July 31, 2012 Name of judge: Martha anderson Name of mediator: John schaefer Settlement amount: $4.975 million to plaintiff salem Land associates Limited Partnership Attorneys for plaintiff: thomas Plunkett, richard rassel Attorney for defendant: David Mendelson Keys to winning: Pre-suit investigation of information related to liability and damages under the Michigan Limited Liability act; early asset protection restraining order entered by the circuit court #12 Chain of command not followed, plaintiff says Neurological injury would ve been prevented if C-section done sooner $4.85 Million In a birth trauma lawsuit against defendants hospital, certified nurse midwife, OB nurse and obstetrician, plaintiff sought compensatory damages for failing to timely and properly deliver the minor plaintiff via C-section resulting cerebral palsy and development delay. MCKEEN On Sept. 25, 2008, the mother presented to the defendant hospital complaining of no fetal movement. Initial fetal heart tracings showed minimal long term variability, no accelerations, and occasional variable decelerations. Decelerations worsened throughout the night and into the morning. Defendant OB nurse admitted that the fetal tracings did worsen throughout the night, but that she did not know she was supposed to call the defendant attending midwife. In contrast, the midwife testified that it was her expectation that the OB nurse would call. The midwife was belatedly contacted and arrived at the defendant hospital at approximately 5 a.m. Sept. 26. Upon examining the fetal monitor strips, the midwife contacted the on-call obstetrician, who suggested that the patient be given the option of a C-section or Pitocin induction. The obstetrician later admitted that if she had known how poor the fetal monitor strips were, an induction would not have been a safe option and she would have ordered an immediate C-section. At 7:23 a.m., a C-section was finally undertaken. The baby s condition was consistent with acute asphyxia, and was transferred to a nearby children s hospital where she was diagnosed with severe hypoxic ischemic encephalopathy. Despite defendants argument that plaintiff minor had experienced a brain injury prior to the mother presenting to the hospital, plaintiff s experts testified that the child suffered irreparable brain damage during the hour preceding her delivery. Defendants also contended that the child s injuries were caused by virtue of being born preterm, arguing that children born preterm are more vulnerable to fluctuations in cerebral blood flow. Plaintiff s proximate cause experts testified that had the defendants monitored plaintiff s condition continuously, properly utilized the chain of command, and conducted a STAT C-section, neurological injury would have been prevented. The case settled for $4.85 million. Type of action: Medical malpractice, birth trauma Types of injuries: cerebral Palsy, spastic quadriplegia, development delay Court/Case no./date: confidential; confidential; Dec. 14, 2012 Settlement amount: $4.85 million Most helpful experts: Dr. Michael Berke, obstetrics, Bloomfield Hills; Dr. carolyn crawford, neonatology; sea isle city, n.j.; Michael thompson, economics, Bloomfield Hills; Gayle Huelsmann, registered nurse, albuquerque, n.m.; John Fassett, certified nurse midwife; san Francisco; Dr. Michael cardwell, maternal fetal medicine, normal, ill. Continued on page 14 VISIT US ONLINE. milawyersweekly.com

14 B14 Michigan Lawyers Weekly Michigan Lawyers Weekly Continued from page 13 Attorney for plaintiff: Brian McKeen #13 Shareholders assert a squeeze-out attempt Breach of fiduciary duty, lifetime employment argued by ex-workers $4.59 Million Plaintiffs Kurt Schwannecke (as an individual and also in his capacity as trustee for the Robert Schwannecke Trust), Gayl Winkowski, Todd Schwannecke and Elizabeth Schwannecke sued defendants William Schwannecke, William Schwannecke Trust, Self Serve Lumber Co. and S&S Wholesale LC on claims of shareholder MANTESE and member oppression, breach of fiduciary duty, breach of contract and wrongful discharge The plaintiffs had worked for Self Serve Lumber for several decades, and they collectively owned a minority, non-controlling interest in the company. Over the course of several months, William Schwannecke, the controlling ROSSMAN shareholder, terminated each of the plaintiffs from their long-held positions of employment, eliminated all of their benefits, removed them from the board of directors, and was attempting to force the sale of the plaintiffs shares at a subpar price. Alleging that defendant Schwannecke s course of conduct constituted a shareholder squeeze-out, the plaintiffs filed claims for violations of the shareholder and member oppression statutes, breach of fiduciary duty, and breach of lifetime employment contracts. The principal remedies sought by plaintiffs were a court-ordered buyout of their shares and damages, or, alternatively, the appointment of a receiver and the dissolution and liquidation of the business. After early and intense discovery, and forensic investigation and analysis of the businesses finances, the parties engaged in a two-day facilitation process that culminated in a $4.59 million settlement in favor of the plaintiffs. Types of actions: shareholder and member oppression, breach of fiduciary duty, breach of contract, wrongful discharge Type of injuries: Value of shareholding and member interests Name of case: Schwannecke, et al. v. Schwannecke, et al. Court/Case no./date: saginaw county circuit court; cK-2; July 19, 2012 Tried before: Facilitation Name of judge: robert Kaczmarek Settlement amount: $4.59 million Most helpful expert: Jesse ultz, valuation and financial opinions, southfield Attorneys for plaintiff: Gerard Mantese, Mark rossman MICHIGAN LAWYERS WEEKLY Reprints The convenient, affordable way to add depth and style to your marketing program: Enhance marketing packages and press kits Provide practice specialty literature Develop direct mail and campaigns Present information at conferences and seminars Provide instant access to articles on your website For information on pricing or how to order, contact Charlene Boccaccio at (248) or charlene.boccaccio@mi.lawyersweekly.com #14 Responsibility shifts in suit over burns, death Question of fulfilling duty argued by defense in gas washer incident $4.25 Million In a confidential wrongful death lawsuit, the estate for plaintiff s decedent sought damages from defendants industrial company and two skilled tradesmen. Plaintiff s decedent was an apprentice tradesman working at the industrial company, as were the two tradesmen, working on unblocking a gas washer. The company developed a plan and sequence, and it was contended that the company eliminated the safest way to address the blockage. The altered plan called for attempting to vacuum or water-jet the clean lines and/or replace a 40-inch cleanout pipe at the bottom of the clogged washer. If the attempts were unsuccessful, plaintiff s decedent would remove a flange at the bottom of the washer. All defendants were aware that any material in the washer would be super heated. After defendants tradesmen were unable to unclog the washer, the company advised plaintiff s decedent to proceed in removing the flange. It was located at the bottom of the washer in an area subsequently defined as a confined space, meaning there was limited ingress and egress. Plaintiff s decedent removed every other bolt holding the flange, then was instructed to remove the rest of the bolts. With one bolt left, the flange opened and engulfed plaintiff s decedent in hot steam and mud. He was burned over 95 percent of his body and died the following morning. Defense for the skilled tradesmen was that they did not have a CHRISTENSEN duty to the injured parties, while defendant industrial company asserted that the skilled tradesmen did not fulfill their duties. The matter settled for $4.25 million. Type of action: Wrongful death Type of injuries: Burns, death Court/Case no./date: confidential; confidential; Feb. 7, 2012 Settlement amount: $4.25 million Attorneys for plaintiff: David christensen, sandra renard, Mary Pat rosen RENARD ROSEN #15 C-section should have been performed much sooner, plaintiffs argue Defense says child s injuries were due to prematurity; case is settled $4.005 Million In a confidential medical-malpractice lawsuit, plaintiff conservator for plaintiff s minor, sought compensatory damages from defendant hospital and obstetrician on claims of catastrophic brain damage On Aug. 2, 2001, plaintiff mother arrived at defendant hospital with complaints of cramping and MCKEEN bleeding with particular reference to pain in the left lower quadrant. She was nearly 30 weeks pregnant. The nurse on duty paged the defendant obstetrician and advised her of the prematurity, vaginal bleeding, and cramping. Defendant physician did not come to the hospital to examine the mother, and instead directed defendant nurse to perform a bedside ultrasound to see if the placenta was visible, high or low, and if low, to do a gentle vaginal exam. The nurse was unable to view the placenta on this exam and, rather than presenting to the hospital, defendant obstetrician advised defendant nurse to perform another vaginal exam at 1:47 a.m., even though placenta previa had not yet been ruled out. The mother then proceeded to pass clots at approximately 1:50 a.m., 2:03 a.m., and 3:10 a.m. Defendant physician was again paged at 3:50 a.m., and went to the hospital. Upon arrival at 4:02 a.m. he noted that plaintiff mother was in constant pain and palpated a hard abdomen, further indications of placental abruption. At 4:13 a.m. the obstetrician ordered that plaintiff mother be prepped for a C-section, should it become necessary. The obstetrician then entrusted the followup care to the defendant nurses, and left for more than eight hours. The nurses were left to interpret and report the results of the fetal monitoring without the assistance of any physician, and, it was contended, were unable to competently evaluate and understand the basic principles of fetal monitoring. At 12:17 p.m., the physician ordered an emergency C- section, but the baby was born in a severely depressed state, with a ph of With her growth and development it became apparent that the child suffered significant sequelae from the hypoxic ischemia precipitated by birth trauma. She has spastic diplegic type cerebral palsy and requires medications for seizure control. She is markedly cognitively impaired and requires occupational therapy, speech therapy, and physical therapy. The matter settled for $4.005 million. Type of action: Medical malpractice, birth trauma Type of injuries: Failure to timely recognize and treat signs and symptoms of placental abruption and fetal distress resulting in severe neurological injuries; cerebral palsy Court/Case no./date: confidential; confidential; Dec. 7, 2012 Settlement amount: $4.005 million Attorney for plaintiff: Brian McKeen #16 Plaintiff: Decreased fetal movement called for quicker response Defendants claim that the injury was due to chronic bleed in utero $3.875 Million In a medical malpractice/birth trauma action, plaintiff sought damages based upon the defendants failure to promptly diagnose and treat fetal compromise due to a fetomaternal transfusion. As a consequence of the delay the minor plaintiff suffered severe intrapartum ischemia resulting in spastic quadriplegic cerebral palsy and MCKEEN severe developmental delays. On March 28, 2005, the mother presented to defendant certified nurse midwife at 38 weeks gestation complaining of decreased fetal movement. She was not placed on a fetal monitor nor sent for further evaluation. The mother testified that she was told that decreased fetal movement was normal. Defendant nurse midwife denied being told of decreased fetal movement but did concede that she often tells patients that they may not feel as much fetal movement later in pregnancy as the baby grows larger. The nurse midwife did not undertake any assessment of fetal well-being, and merely instructed the mother to return in a week for her regular prenatal appointment. Three days later, the mother presented to the emergency room of the defendant hospital under the care of defendant certified nurse midwife, again complaining of deceased fetal movement since March 28. Despite the fact that the initial electronic fetal monitor strips were

15 Michigan Lawyers Weekly Michigan Lawyers Weekly B15 non-reactive with decreased variability, the defendant certified nurse midwife testified that she was not concerned that the baby was hypoxic. Plaintiff s obstetric experts testified that a C-section should have been done immediately. A subsequent biophysical profile (test that measures the health of the fetus) yielded a score of 2/10. Plaintiff asserted that the standard of care required an immediate C-section. During his deposition, the defendant obstetrician admitted that an urgent C-section was required, but stated that there was no specific time frame. The baby was born pale and limp with APGAR scores of 3 at one minute and 5 at six minutes. Initial laboratory tests confirmed that the baby was severely anemic and acidotic. The case settled for $3.875 million. Type of action: Medical malpractice, birth trauma Types of injuries: cerebral Palsy, spastic quadriplegia, development delay Court/Case no./date: confidential; confidential; nov. 5, 2012 Settlement amount: $3.875 million Most helpful experts: Dr. Michael Berke, obstetrics, Bloomfield Hills; Dr. carolyn crawford, neonatology; sea isle city, n.j.; Michael thompson, economics, Bloomfield Hills; Gayle Huelsmann, registered nurse, alburquerque, n.m.; John Fassett, certified nurse midwife; san Francisco; Dr. Michael cardwell, maternal fetal medicine, normal, ill. Attorney for plaintiff: Brian McKeen #17 Ex-exec says he was unjustly terminated Discrimination charge is filed with EEOC; procedures are scrutinized $3.42 Million Plaintiff, a 59-year-old male of South Asian Indian origin and nationality, spent 26 years of his professional career with defendant, an international automobile manufacturer, before being terminated. For more than a decade, he served in high-profile executive positions on four different continents SWANSON outside of North America. His position included a substantial salary, bonuses, stock options, and numerous other benefits. In December 2009, defendant s new president and CEO informed plaintiff that plaintiff would be retiring as of the Dec. 31, 2010, that his termination was not the result of any performance issues, and that he was being replaced by a Caucasian male whose national origin STOOPS was European a move that, plaintiff argued, would allow his successor to hold a seat on defendant s board. Plaintiff asserted that just two days prior, his two immediate superiors issued a glowing letter of recommendation touting his many accomplishments and value to the company. Plaintiff filed vigorous complaints and filed a discrimination charge with the Equal Employment Opportunity Commission. Defendant raised alternative defenses based on improper jurisdiction, joint employer status, and extra-territorial application of Title VII. Additionally, plaintiff argued that defendant attempted to thwart plaintiff s discovery efforts and frustrate his right to gather pertinent evidence that would ultimately undermine their arguments. Plaintiff reported that keys to reaching a $3.42 million settlement included gaining a thorough understanding of: 1. Damage amounts, including the contractual damages (which damages were comprised of numerous compensation types and categories); and 2. Defendants international operations, human resource policies and procedures and facts and circumstances surrounding plaintiff s discharge. Types of actions: title Vii national origin discrimination, breach of contract Type of injuries: Lost wages, failure to pay contractual amounts including bonus and executive compensation Court/Case no./date: confidential; confidential; october 2012 Settlement amount: $3.42 million Attorneys for plaintiff: Daniel swanson, Kevin stoops Mother: standard of practice, midwifery guidelines breached C-section should have been performed to avoid birth trauma $3.75 Million #18 Plaintiff next friend to plaintiff minor sought compensatory damages from defendants medical professionals on claims of birth trauma and medical malpractice. Plaintiff treated prenatally with a hospital OB/GYN clinic and saw midwives for her care. During her prenatal care, a VBAC (vaginal REITER birth after prior C-section) was considered. The risk factors for consideration for having this done, include a short interval from her last C-section; prior C-section for fetal distress ; single-layer closure; morbid obesity; and African- American race. Defendant prenatal midwife gave informed consent, and plaintiff signed a consent form for the VBAC. WALSH At 40 weeks gestation, plaintiff was sent to the hospital. Fetal monitoring was reassuring, initially. Plaintiff went into labor and was managed by another midwife, who broke plaintiff s water in order to induce labor. After the membranes ruptured, there was a cord compression, and the fetal heart tracing became non-reassuring though variability remained moderate. The midwife called for PLASTIRAS SABATINI physician assistance. The attending doctor consented the plaintiff for a C- section and performed an amnioinfusion. The plan was to try the amnioinfusion and take plaintiff for a C-section if there was no improvement. There was some improvement, but non-reassurance recurred over time. Plaintiff minor was delivered vaginally a few hours later. Cord blood gases taken after birth were within the normal limits, suggesting the baby was not asphyxiated. Plaintiff minor has severe cerebral palsy and cognitive deficits, is on a feeding tube and is unable to walk. Since birth, she has spent a considerable amount of time in the hospital. She has a significantly reduced life expectancy. Plaintiff asserted that the prenatal midwife was unaware of the risk factors for plaintiff; failed to adequately evaluate whether plaintiff was an appropriate candidate for VBAC; and incorrectly calculated the chance of a successful vaginal delivery, as a timely C- section should have been performed instead. It was argued that the standard of practice and the midwifery guidelines at the hospital required that there be a physician consultation for each VBAC patient. Also, the midwife should not have ruptured the membranes when she did, and though the cord gas was normal, this is not uncommon with an acute asphyxial event. Defendants position was that plaintiff consented to the VBAC and did, in fact, have a successful vaginal delivery; in other words, there was no uterine rupture, the main risk factor for performing a VBAC. Further, defendants argued that the midwife handled the labor and consulted with physicians appropriately. The matter settled for $3.75 million. Type of action: Birth trauma, medical malpractice Type of injuries: cerebral palsy, cognitive deficits Court/Case no./date: confidential; confidential; July 31, 2012 Tried before: Mediation Settlement amount: $3.75 million Most helpful expert: infocus research Group, shelby township Insurance carrier: Withheld Attorneys for plaintiff: Jesse reiter, rebecca Walsh, Juliana Plastiras #19 Plaintiffs seek restored attendant care benefits Insurance carrier settles after case remanded over sanctions $3,736,458 Plaintiffs Pamela Armisted, guardian of Jonathan Boyce; Kathleen Chauvin, guardian of Joseph Chauvin; Jerry Wagner, guardian of Leslie Stewart; and Gary Parks, guardian of Towanda Parks sought 20 attendant Michigan Lawyers care benefits Weekly from defendant State Farm Mutual Automobile Insurance Co. The four plaintiffs suffered catastrophic injuries, including traumatic brain injuries, in individual automobile accidents between 1993 and Each plaintiff was insured by, or was entitled to no-fault automobile insurance benefits from, State Farm, with extensive, well-documented medical histories and entitlement to benefits. Plaintiffs had prior legal disputes over benefits, and had been ANDREWS EMPLOYMENT AVA LISS receiving attendant care benefits for varying amounts of time. In October 2008, State Farm transferred all of these claims to a single insurance adjuster for handling. Over the next two months, she proceeded to reduce by between and 45 percent and 55 percent, or cut off completely, plaintiffs attendant care benefits. All plaintiffs claims were consolidated and tried in federal court in April 2009, with State Farm prevailing. On appeal, the U.S. 6th Circuit Court of Appeals in April 2012 upheld the verdict, but remanded the case back to the trial court for a determination of discovery sanctions to award to plaintiffs because of State Farm s conduct during discovery (the magistrate found State Farm obstructed the discovery process and that sanctions should be applied). A settlement of $3,736,458 was reached for all of the claims against State Farm, including for any sanctions that could have been awarded by the court, and for attendant care benefits. For some of the claims, State Farm agreed to pay a guaranteed daily rate for attendant care benefits for at least five years into the future, paying as much as $675 per day for attendant care benefits. The total value of the settlement of the attendant care issues includes the amount paid by the insurance company for the previous years deficiencies in attendant care payments, and the value of the claim during the pendency of the agreements between the parties. LEGAL SECRETARY Type of action: automobile no-fault benefits Types of injuries: traumatic brain injuries Name of case: Armisted, et al. v. State Farm Mutual Automobile Insurance Co. Court/Case no./date: u.s. District court, eastern District of Michigan; 07-cV ; sept. 7, 2012 Name of judge: arthur tarnow Name of mediator: robert Harrison Settlement amount: $3,736,458 Insurance carrier: state Farm Attorneys for plaintiff: nicholas andrews, arthur Liss, Benjamin reifman Attorneys for defendant: richard Grover, James Hewson, James Gross, Michael slater (all Michigan-based); ross silverman (chicago) Continued on page 16 Place a Legal Products and Services ad today! LAW

16 B16 Michigan Lawyers Weekly Michigan Lawyers Weekly Continued from page 15 Website says URLs misspelled variations took its traffic away Profile shows that defendants had history of typosquatting addresses $3.5 Million #20 Plaintiff The Weather Underground Inc. sought damages from defendants Navigation Catalyst Systems Inc., Connexus Corp., Firstlook Inc. and Epic Media Group Inc. on claims of violating the Anticybersquatting Consumer Protection Act, 15 U.S.C. 1125(d). Plaintiff is a Top 100 U.S. website for weather information and SCHAEFER meteorology. It demonstrated, via discovery through defendants domain profile, that defendants had a business model based on registering millions of domain names in various typographical variations (or misspellings) of well-known domain names, sometimes using proxy or offshore registrars. Plaintiff s domains for weatherunderground.com and wunderground.com were among the domain names defendant typosquatted. This is to say that defendants made similar domain names with misspellings, so that when web users type in the wrong variation of plaintiff s URLs, traffic is diverted away from plaintiff s sites and toward defendants advertisers, some of whom were plaintiff s competitors. Plaintiffs sued under the Anticybersquatting Consumer Protection Act, which allows statutory damages that can range between $1,000 and $100,000 per violation. The parties agreed to a $3.5 million consent judgment. Type of action: anticybersquatting consumer Protection act violation Type of injuries: Diverted web traffic Name of case: The Weather Underground Inc. v. Navigation Catalyst Systems Inc., et al. Court/Case no./date: u.s. District court, eastern District of Michigan; 2:09- cv-10756; June 15, 2012 Name of judge: Marianne Battani Consent judgment amount: $3.5 million Attorneys for plaintiff: c. enrico schaefer, anthony Patti, Brian Hall Attorney for defendant: William Delgado (Los angeles) Key to winning: obtaining defendants domain profile #21 Increased intracranial pressure puts damage on newborn s health Plaintiff: Pitocin misuse caused excessive uterine contractions $3.3 Million Plaintiff next friend to plaintiff s minor sought compensatory damages from defendant hospital and defendant medical staff on claims of medical malpractice and birth trauma. On Nov. 15, 2005, the mother was admitted to the hospital for an elective induction of labor. A vaginal examination performed shortly MCKEEN after admission revealed good fetal heart variability with accelerations, no decelerations and no uterine activity. The decision was made to proceed with induction of labor. Report your Verdicts & Settlements! milawyersweekly.com/submit-verdicts Pitocin was administered the next morning by defendant labor nurses to augment labor, and was continued throughout the morning despite the baby experiencing tachycardia as a result of uterine hyperstimulation. The nurses also ignored a standard order to discontinue Pitocin use and notify a physician if the fetal heart rate pattern becomes non-reassuring. Instead, Pitocin use continued and was steadily increased throughout the afternoon. Pitocin was periodically halted in the late afternoon, at which point uterine activity ceased and the fetal heart rate returned to the normal baseline with normal variability. However, Pitocin was restarted less than an hour later. Almost immediately the contraction pattern returned to tachysystole (excessively frequent uterine contractions). Pitocin dosage was increased throughout the evening and continuing into the morning of Nov. 17. At 4:30 a.m., the labor nurses noted fetal heart rate deceleration. A vaginal exam performed by the defendant obstetrician discovered that the mother s cervical dilatation had progressed only 1 cm over a five-hour period indicating an arrest of labor, and mandating an immediate caesarean section. However, plaintiff s minor was not delivered until nearly an hour later. After delivery, the baby was noted to have pale skin, tremors of all extremities and intercostal retractions. A CT scan of the head revealed a probable hemorrhage. An EEG also was performed and was consistent with neonatal seizure disorder. The baby was subsequently diagnosed with quadriplegic cerebral palsy and continued to exhibit extensive signs and symptoms of permanent neurological damage. The matter settled for $3.3 million. Type of action: Medical malpractice, birth trauma Types of injuries: Quadriplegic cerebral palsy, permanent neurological damage Court/Case no./date: confidential; confidential; Dec. 17, 2012 Settlement amount: $3.3 million Most helpful experts: Dr. Michael Berke, obstetrics, Bloomfield Hills; Dr. carolyn crawford, neonatology; sea isle city, n.j.; camille Dicostanzo, neonatal nursing, Highland Park, ill.; Michelle allread, neonatal nursing, sylvan Park, ill.; Larry Forman, life care expert, Miami; Michael thompson, economics, Bloomfield Hills Attorney for plaintiff: Brian McKeen #22 Thousands of trees, two cabins lost in blaze Train s records questioned as hot carbon causes property to ignite $3.26 Million In Crawford County Circuit Court, plaintiff game club sought damages from defendant railway company for losses sustained in a wildfire. On April 24, 2008, defendant was operating one of its locomotives south of Grayling. An area of incline there required that the engineer throttle up in order to main- DOHERTY tain speed. During the throttling-up procedure, hot carbon particles were forced out of the exhaust landing near the tracks, starting a wildfire that spread to plaintiff s property. The fire consumed thousands of trees on about 400 acres of game club property and two cabins. Plaintiff premised liability upon MCL , railroad liable for all fires caused by its engines, and MCL (f), which requires all internal combustion engines have a spark arrester and makes an offender liable for all damages caused by a resulting fire. The Michigan Department of Natural Resources inspection disclosed that the locomotive was not equipped with a spark arrester. Treble damages under MCL (1)(a), Michigan s timber trespass statute, also were sought. Defendant argued that the spark arrester issue had been federally preempted and, therefore, it had no duty to use a spark arrester. In addition, defendant s chief mechanical officer testified that the locomotive had undergone its federally mandated 92-day inspection only four days before the fire and that all systems had been checked and found to be in proper working order. Close scrutiny of the records revealed several discrepancies, including many of the reports being virtually identical with only the date changed; and the 92- day inspection supposedly being done April 20, 2008, though black box data showed the locomotive was not run April 19 or 20. After plaintiff s motion for summary disposition as to liability was granted, a landscape architect drew up a plan for selective replanting at a cost of $4.5 million. Two separate focus groups determined that an award of $1 to $1.5 million was reasonable. At facilitation, the parties agreed to a $3.26 million settlement. Type of action: negligence, trespass Type of injuries: Fire damage to 400 wooded acres, loss of two cabins Court/Case no./date: crawford county circuit court; confidential; Jan. 12, 2012 Name of judge: Janet allen Name of facilitator: alton Davis Settlement amount: $3.26 million Most helpful experts: edward steigerwaldt, forestry, tomahawk, Wis.; Bill Lawrence, arborist, ann arbor; chet Hill, landscape architect, ann arbor Insurance carrier: essex Attorney for plaintiff: Paul Doherty Keys to winning: extensive discovery on the mechanical condition of the locomotive, focus group analysis of the damage issues #23 Mother claims doctors, staff didn t respond to signs of fetal distress There were no ominous indicators on monitoring strips, says defense $3.25 Million Plaintiff mother/next friend to plaintiff minor sought compensatory damages from defendants hospital and OB/GYN on claims of birth trauma and medical malpractice. At 40 weeks gestation, plaintiff mother went to the hospital with spontaneous rupture of membranes. Amniotic fluid was ample CHRISTENSEN and clear, and fetal heart tones were noted as good and reassuring. Approximately eight hours later, a pattern emerged on the fetal monitoring strip of minimal to absent variability, and prolonged and late decelerations. It was asserted that the ominous patter continued to progress, but no action was taken by the OB/GYN and hospital RENARD nursing staff toward delivery or discussions about C-section. An hour and a half later, the infant was born without spontaneous respiration, and resuscitative staff was called in. When the infant was transferred to another hospital for intensive care management, the infant developed rhythmic movements potentially a seizure. A CT scan at ROSEN 38 hours of age revealed cerebral edema, consistent with hypoxic ischemic encephalopathy (lack of oxygen to the brain). The child was diagnosed with cerebral palsy, is spastic, quadriplegic and blind, and requires 24-hour care. The matter was settled for $3.25 million. Type of action: Birth trauma, medical malpractice Type of injuries: cerebral palsy Court/Case no./date: confidential; confidential; May 15, 2012 Tried before: Facilitation

17 Michigan Lawyers Weekly Michigan Lawyers Weekly B17 Settlement amount: $3.25 million Insurance carrier: self-insured Attorneys for plaintiff: David christensen, sandra renard, Mary Pat rosen #24 Female patient claims that therapist seduced, sexually abused her Clinic: Doctor was independent contractor, acts unforeseeable $3.2 Million Plaintiff female patient sought compensatory damages from defendant therapist and defendant clinic on claims of seduction and sexual abuse. Plaintiff, a married mother of five, was assigned to the therapist, who allegedly seduced and sexually abused her during the therapeutic relationship. It was asserted that afterward, the therapist seduced and sexually abused a second patient. Plaintiff charged that defendant clinic failed to act reasonably in neglecting to check the therapist s references and not keeping up on disciplinary actions pending against the therapist for previous non-sexual offenses. Defendant clinic contended that the therapist was an independent contractor, that his acts were intentional, criminal and unforeseeable, and that malpractice caps applied. Defendant clinic agreed to a $1.2 million settlement, while judgment was entered against the therapist for $2 million. Types of actions: negligence, malpractice, intentional tort Types of injuries: seduction, sexual abuse Court/Case no./date: confidential; confidential; nov. 1, 2012 Judgment/settlement amounts: $2 million (therapist)/ $1.2 million (clinic) Most helpful experts: Dr. Gary schoener, clinical psychology, Minneapolis; Dr. Janet sonne, clinical psychology, Huntington Beach, calif. Attorney for plaintiff: robert Garvey #25 (tie) Widow sues deputies after husband shot to death by one in home In looking over totality of event, expert cites police misconduct $3 Million Kathryn Bletz, personal representative of the Estate of Fred Bletz, sought compensatory damages from defendants Travis Gribble and Brent Denny following a shooting incident in the Bletz household. At approximately midnight May 4, 2005, Gribble and Denny, deputies with the Ionia County Sheriff s Department went to the Bletz home to serve a misdemeanor bench warrant on Bletz s son. The son agreed to voluntarily leave the home with the deputies and went to retrieve his shoes. When the deputies entered the darkened Bletz home to stay close to the son, the family dog started barking loudly. The deputies raised their voices in response, adding to the commotion. They also failed to turn on the lights in the home or to otherwise announce their presence to Kathryn and Fred Bletz who were asleep in their nearby bedroom. Fred Bletz was awakened by the loud noises, retrieved his handgun, and entered the darkened dining room area. The deputies, seeing the gun in Bletz s hands, shined a Maglite in his face, yelled loudly at him to drop the gun, and claimed they identified themselves as police officers. Bletz did not drop his weapon and began to turn toward the deputies. As he did so, Gribble fired his weapon multiple times at Bletz, killing him with a shot to the abdomen. Denny did not unholster his weapon. Hearing the shots, Kathryn Bletz wife ran out of the bedroom to come to her husband s aid. She was immediately arrested by the deputies, placed in handcuffs, and confined in the back seat of a patrol car for at least two hours while her husband died on the floor of their home. According to Gribble, Fred Bletz was pointing his gun directly at the deputies, and they had to make a splitsecond, life-or-death decision to shoot or be shot. The key to the successful resolution of this case included: Pursuing a USC 1983 claim in federal court when it became apparent that Michigan law on intentional tort liability of governmental officials was about to change; Retention of an excellent police practices expert who, analyzing the totality of the circumstances, was able to create a strong case of police misconduct; Developing the independent claim of Kathryn Bletz for an unreasonable seizure; and A powerful presentation of damages, including a professional videotape documentary of the life of the decedent, a 56-year-old decorated Vietnam War veteran. The matter settled for $3 million. Type of action: civil rights violation usc 1983, police misconduct Type of injuries: Death, Name of case: Bletz, et al. v. Gribble, et al. Court/Case no./date: u.s. District court, Western District of Michigan; 1:08- cv rjj; June 11, 2012 Name of judge: robert Jonker Settlement amount: $3 million Most helpful expert: D.P. VanBlaricom, police practices, seattle Attorneys for plaintiff: George sinas, James Hofer, stephen sinas, Hugh Davis #25 (tie) Mother s remarkable recovery is disputed She suffered TBI in crash; extent of cognitive damage questioned $3 Million On July 29, 2010, plaintiff mother and plaintiff daughter were rear-ended by a semi-truck while stopped in a construction zone on Interstate 94 in Calhoun County. Plaintiff mother suffered a traumatic brain injury that permanently disabled her from working as an executive assistant, where KONING she earned approximately $70,000 per year. Plaintiff daughter incurred a fractured humerus. The most challenging aspect of the case was determining the extent of cognitive damage suffered by plaintiff mother. Defense did not contest liability but centered its defense on the remarkable recovery, as defined by her doctors, though she was still left with significant deficits. JILEK The matter was settled in a voluntary facilitation for $3 million, allocated as $2.92 million for plaintiff mother and $80,000 for plaintiff daughter. Type of action: third-party auto negligence Type of injuries: traumatic brain injury, fractured humerus Court/Case no./date: confidential; confidential; aug. 14, 2012 Settlement amount: $3 million ($2.92 million plaintiff mother, $80,000 plaintiff daughter) Attorneys for plaintiff: James Koning, Jonathan Jilek #27 Attendant care, van sought by quadriplegic Modified transportation, better car rates were refused by carrier $2,933,069 Plaintiff Jeffrey Humrich suffered a catastrophic injury in a Jan. 7, 2011, automobile accident, including a severe spinal cord injury resulting in high-level quadriplegia. He filed suit Nov. 1, 2011, against his carrier, defendant State Farm, when the insurer refused to properly pay for no-fault ANDREWS personal injury protection benefits. The claims included not receiving an adequate wheelchair; a modified king-sized bed, which defendant claimed would also be used by Humrich s wife; modified housing; modified transportation; and attendant care rates. On Sept. 24, 2011, a settlement was reached, and included purchase of a modified handicap accessible van; an agreement for LISS modified housing; and settlement of the attendant care benefits through The attendant care settlement included both payment for the deficiency in attendant care benefits prior to the agreement, as well as a guaranteed daily rate of $840 per day for attendant care benefits for at least seven years into the future. Type of action: automobile no-fault Type of injuries: Quadriplegia Name of case: Humrich v. State Farm Mutual Automobile Insurance Co. Court/Case no./date: u.s. District court, eastern District of Michigan; 11-cV-14808; sept. 24, 2012 Name of judge: Denise Page Hood Name of mediator: robert Harrison Settlement amount: $2,933,069 Most helpful expert: Dr. Gianna rodriguez, physical medicine and rehabilitation, ann arbor Insurance carrier: state Farm Attorneys for plaintiff: nicholas andrews, arthur Liss Attorneys for defendant: richard Grover, Michael slater (both of Michigan); ross silverman (chicago) #28 Plaintiff seeks double dip from his insurer Attendant care, housing, work loss sought when lower rates paid $2,707,430 Plaintiff Bryan Croteau sought a readjustment of benefits from defendant Auto-Owners Insurance Co. The dispute related to the payment of work loss benefits, attendant care benefits, housing and a double dip in allowable expense benefits. Croteau was injured in a truckmotorcycle accident in October ANDREWS His injuries including respiratory failure, blunt trauma to the head and a T4 fracture led to a complete spinal cord lesion, paraplegia, blindness, cognitive disorder, and depressive disorder. Although Auto Owners was paying for attendant care, plaintiff said it was being paid at a rate that was lower than the rate its LISS own adjuster had determined to be the reasonable value of the care. In addition, it was argued that Auto Owners also paid work loss benefits, but Continued on page 18

18 B18 Michigan Lawyers Weekly Michigan Lawyers Weekly Continued from page 17 the adjuster was using her own method to calculate the benefits rather than that method provided for by the No-Fault Act. Plaintiffs said the adjuster also ignored Croteau s legal entitlement to double dip allowable expense benefits. It is known as a double dip because, plaintiff s counsel explained, in normal circumstances, a no-fault carrier would pay the medical provider s bill. However, in this instance, because it was a non-coordinated policy, Auto-Owners was required to pay Croteau the amount that Blue Cross Blue Shield, Croteau s health insurer, paid for medical expenses. Plaintiff was able to obtain partial summary disposition in his favor on the double dip benefits issue. The matter settled for $2,707,430. The total value of the settlement of the attendant care issues includes the amount paid by Auto Owners for the previous years deficiencies in attendant care payments and the value of the claim during the pendency of the agreement between the parties. Auto Owners agreed to pay $768 per day for attendant care through The settlement value also includes resolution of work loss benefits, home modifications and double dip allowable expense benefits. Type of action: First-party no-fault benefits Types of injuries: Paraplegia, blindness, cognitive disorder, depressive disorder Name of case: Croteau v. Auto-Owners Insurance Co. Court/Case no./date: oakland county circuit court; nF; May 14, 2012 Name of judge: shalina Kumar Settlement amount: $2,707,430 Most helpful expert: Dr. timothy sesi, physical medicine, Pontiac Insurance carrier: auto-owners Attorneys for plaintiff: nicholas andrews, arthur Liss Attorney for defendant: John cowley Jr. #29 Attendant care, work loss benefits are sought Carrier is sanctioned for discovery abuse for its adjusting practices $2,579,320 Subscribe today at milawyersweekly.com Plaintiffs Renea Garber-Cislo, guardian and co-conservator of Kelsey Garber; and Brian Garber, co-conservator of Kelsey Garber sought attendant care and work loss benefits from defendant State Farm Mutual Automobile Insurance Co. Kelsey Garber sustained catastrophic injuries in an Aug. 16, ANDREWS 2009, automobile accident including a traumatic brain injury and numerous orthopedic injuries. Her injuries resulted in related physical, cognitive, behavioral and emotional residual deficits, and she required attendant care, which was provided by her family. Plaintiff filed suit Aug. 6, 2010, against State Farm, asserting that LISS the carrier refused to properly pay no-fault personal injury protection benefits including attendant care, work loss, and other medical expenses. When the carrier s adjusting practices were learned during discovery, including use of private investigators and defense medical examiners, plaintiff on Feb. 21, 2012, filed an amended bad faith complaint that included counts relating to those adjusting practices. Plaintiff obtained court-ordered discovery sanctions against State Farm for discovery abuses, and partial summary judgment related to work loss benefits, some attendant care benefits and no-fault penalty interest on the overdue amounts (monetary amounts were pending at the time of settlement). The parties settled Garber s attendant care claims for the benefits that were outstanding, and State Farm agreed to pay a guaranteed daily rate of $672 for attendant care benefits for a period of at least seven years into the future. The total value of the attendant care issues includes the amount paid by the insurance company for the previous years deficiency in attendant care payments and the value of the claim during the pendency of the agreement. The $2,579,320 settlement also includes payment for work loss benefits and no-fault penalty interest obtained following summary judgment on the issues. Type of action: automobile no-fault Type of injuries: traumatic brain injury Name of case: Garber-Cislo v. State Farm Mutual Automobile Insurance Co. Court/Case no./date: u.s. District court, eastern District of Michigan; 10-cV ; sept. 6, 2012 Name of judge: arthur tarnow Name of mediator: robert Harrison Settlement amount: $2,579,320 Most helpful experts: Dr. owen Perlman, physical medicine and rehabilitation, ypsilanti; robert ancell, vocational rehabilitation, southfield Insurance carrier: state Farm Attorneys for plaintiff: nicholas andrews, arthur Liss, Benjamin reifman Attorneys for defendant: Michael slater, timothy Holland (Grand rapids); ross silverman, Jonathan Marks, emily Prentice (chicago); James Hewson (oak Park) #30 (tie) Life-changing injuries were result of truck accident, plaintiff says Defendant says phantom vehicle pulled into path; damages argued $2.5 Million Plaintiff driver sought compensatory damages from defendant driver on claims of auto negligence that resulted in disk herniations and loss of arm use. On Sept. 16, 2010, plaintiff was driving a tractor trailer and approached a traffic light that was turning yellow. As he slowed, a fully loaded gas tanker driven by de- WALSH fendant rear-ended his vehicle. Plaintiff claimed he properly slowed for a red light, while defendant claimed that a phantom vehicle pulled into the path of the plaintiff and was the cause of the accident. The defendant filed a notice of non-party at fault naming this phantom vehicle. Plaintiff was treated conservatively for cervical disk herniations REITER at C4-C7 for approximately six months, then underwent a cervical laminectomy. Following this surgery, the plaintiff never fully regained strength in his left arm. Plaintiff s position was that this is a clear liability accident and that the plaintiff suffered life-changing injuries as a result of defendant s negligence. The court agreed with plaintiff on the negligence issue, granting summary disposition to the plaintiff on negligence and granting a motion to strike the non-party at fault. Defendant claimed that plaintiff s cervical laminectomy was successful, and that plaintiff should be able to return to work and to most, if not all, of his normal activities of daily living. The matter settled for $2.5 million. Type of action: auto negligence Type of injuries: cervical disk herniations, loss of full use of left arm Court/Case no./date: confidential; confidential; aug. 28, 2012 Tried before: Mediation Name of mediator: Withheld Settlement amount: $2.5 million Most helpful expert: Dr. Daniel ryan, physical medicine and rehabilitation, Warren Attorneys for plaintiff: rebecca Walsh, Jesse reiter #30 (tie) Complex regional pain syndrome is asserted in automobile accident Structured settlement set up after 3 years of unsuccessful therapy $2.5 Million Plaintiffs Jessica and Robert Hendry sought compensatory damages from defendants Michael and Bradley Vernon on third-party no-fault claims. The car Jessica Hendry was in, as a front-seat passenger, was stopped for traffic. Once clear to make a left turn, the car was GREVE rammed from behind by Michael Vernon, the 18-year-old son of Bradley Vernon, an Auto- Owners insurance agent. Liability was not an issue, as the crash was captured on a security camera. Hendry was cleared of any significant injury by the hospital and an orthopedic surgeon. However, her left knee swelled up, changed temperature and color, and was sensitive to touch, all symptoms of complex regional pain syndrome. She underwent three years of ketamine injections into a chest port three times per week; extensive trials of multiple medications; physical and aqua therapy as tolerated; leg rigidity and wheelchair confinement; two spinal stimulator implants; and a pain pump with snail venom, all with poor results. Plaintiff counsel argued that she had life-altering injuries; persistent never-ceasing pain; economic losses of salary and benefits as a registered nurse; and husband and children s loss of consortium. Defense counsel argued that economic losses are limited to those of a licensed practical nurse. Key for plaintiff was early recognition by counsel of the severity of plaintiff s injury; researching the treatments and their low success rates; and holding off on filing suit until close to the statute running to deprive defense counsel of the argument that the next treatment would be the cure. In addition, plaintiffs counsel cited good photographic documentation, a well-executed case evaluation summary, and excellent parties on both sides: Jessica Hendry, who, as a nurse, fully understood and could explain her treatments, and Bradley Vernon, an insurance agent who the carrier was not going to expose to an over-limits verdict. The resolution also includes a structured settlement, with $2.854 million in guaranteed benefits and $3.781 million in expected lifetime benefits. Type of action: third-party no-fault Type of injuries: complex regional pain syndrome Name of case: Hendry, et al. v. Vernon, et al. Court/Case no./date: Bay county circuit court; ni; oct. 9, 2012 Name of judge: Harry Gill Settlement: $2.5 million Case evaluation: $2.5 million Special damages: structured settlement with $2.854 million in guaranteed benefits and $3.781 million in expected lifetime benefits Most helpful experts: Dr. Zaza Godziashvili, anesthesiology and pain management, Bay city; Dr. ravi Lakkaraju, physical medicine and rehabilitation, Bay city; Michael thomson, economist, Bloomfield Hills; structured Financial associates inc., structured settlements, Grosse Pointe Park Insurance carrier: auto-owners Attorney for plaintiff: Guy Greve Attorney for defendant: terence o neill

19 Michigan Lawyers Weekly Michigan Lawyers Weekly B19 #32 Response to patient s condition after signs of shock are argued Defendants say his poor outcome stemmed from his illicit drug use $2 Million Plaintiff male patient sought compensatory damages from defendant hospital on claims of medical malpractice. Plaintiff, 54, entered the hospital for back surgery. During the fourhour surgery, plaintiff had massive blood loss, estimated at almost half his blood volume (3.5 liters). BEREZNOFF Postoperatively, he was sent to the general orthopedic floor as opposed to the surgical intensive care unit. Defendant physician did not write any postoperative orders to address the massive blood loss (i.e., no blood products, no increased fluids) and did not order an appropriate level of monitoring. Over the next 12-plus hours, plaintiff had clear signs of hemorrhagic shock, including but not limited to hypotension, tachycardia (heart rate exceeding normal range) and oliguria (low output of urine). Plaintiff s counsel said there was a failure by the nursing and resident staff to recognize and respond to plaintiff s condition, causing complete renal shut down with resulting hyperkalemia (high potassium), cardiopulmonary arrest, prolonged anoxia (brain damage caused by absence of oxygen), and permanent brain injury. As a result, plaintiff will require 24-hour care for the rest of his life. Defendant contended that the plaintiff s poor outcome and life expectancy were adversely affected by chronic drug use. The case was settled for $2 million after a prolonged case evaluation/mediation process that was interrupted to take the depositions of defense expert witnesses on the illicit drug issues. Type of action: Medical malpractice Type of injuries: anoxic encephalopathy (brain damage caused by absence of oxygen) Court/Case no./date: confidential; confidential; oct. 15, 2012 Tried before: Mediation Name of mediator: Withheld Settlement amount: $2 million Special damages: ongoing custodial expenses associated with acute brain injury, non-economic damages up to medical malpractice cap Most helpful expert: Dr. aaron Waxman, pulmonary medicine, Boston Attorneys for plaintiff: Greg Bereznoff, ronda Little #33 Physicians evaluation process in treating man in car accident argued Defendants waited almost 2 hours to diagnose cardiac blockage $1.97 Million Plaintiff personal representative of the estate of plaintiff s decedent sought compensatory damages from defendant medical center and its agents on claims of medical malpractice that led to death. Plaintiff s decedent was involved in a motor vehicle accident Feb. 17, He was transferred from one medical center to another due to the severity of his injuries. Prior to transfer, he was intubated, a chest tube was placed, and he was given several blood transfusions. After extensive testing, decedent was diagnosed with a small intracranial bleed; unstable pelvic fracture; bladder rupture; and numerous fractures. He subsequently underwent multiple procedures. On March 1, decedent was extubated in the morning. By 1 p.m., decedent began experiencing subtle signs and symptoms of cardiac tamponade (blockage). He complained of being anxious and had dyspnea on exertion. Despite not seeing the patient, defendant physician assistant prescribed Valium. Throughout the afternoon, his respiratory rate increased, he was given more Valium, and was reintubated. At approximately 6 p.m., defendant physician arrived to evaluate decedent. His vitals became unstable and he required vasopressors to maintain his blood pressure. MCKEEN At 6:30 p.m., decedent was given Levophed to support his blood pressure, and at 6:45 p.m., Morphine and Versed were given. At approximately 7:05 p.m., a bronchoscopy was performed, during which his oxygen saturation dropped to the 60s. Decedent briefly arrested at approximately 7:15 p.m., and a chest tube was inserted. The patient responded to the code and an echocardiogram was performed, demonstrating pericardial effusion with tamponade at 9:20 p.m. Approximately 10:07 p.m., decedent was taken for an emergent pericardial window. While prepping him for the surgery, decedent s blood pressure dropped to cc of bloody fluid was drained from the pericardial space. There was no activity from the heart following the drainage procedure. Finally, after several hours of external and internal cardiac resuscitation, there was a return of vital signs. However, decedent never regained consciousness and ultimately died. The matter settled for $1.97 million. Type of action: Medical malpractice Type of injuries: Death Court/Case no./date: confidential; confidential; oct. 18, 2012 Settlement amount: $1.97 million Attorney for plaintiff: Brian McKeen #34 (tie) Third-year resident s inactions cited in suit Internal bleeding undiagnosed, untreated for a number of hours $1.75 Million Plaintiff personal representative for the estate of plaintiff s decedent sought compensatory damages from defendant hospital on claims of medical malpractice resulting in death. The patient went to defendant hospital s emergency room at 37 weeks gestation, with a diagnosis of preeclampsia and/or HELLP syndrome (hemolysis, elevated liver enzymes, low platelet count). Lab tests conducted one hour later revealed increased creatinine levels consistent with kidney failure, increased liver function test indicative of liver dysfunction, and significant increases in coagulation studies. The attending physician admitted the patient to the ICU with the impression that she did suffer from HELLP syndrome. Although the patient was actually suffering from AFLP (acute fatty liver of pregnancy), the wrong diagnosis was not significant, in that the treatment for each syndrome was the same (i.e., delivery of child and supportive care). Over the next two days, the patient s condition began to deteriorate. Her blood pressure began to drop and her abdomen was becoming distended. It was noted by plaintiff that a third-year internal medicine resident who had just begun his 30-day rotation and who had been given primary oversight of the patient, failed to provide appropriate fluid management; delayed administration of pressors to increase her blood pressure; failed to notify the attending ICU physicians; and delayed providing necessary blood and blood products for the patient to survive. The patient then went into hypovolemic shock due to her blood loss, but because of the resident s inaction, it went undiagnosed and untreated for a number of hours. Even when nephrology saw the patient during normal rounds and issued an order to transfuse the patient with two units of fresh frozen plasma, it took another hour and a half to act on the order. Later that morning, the patient was taken to surgery where an exploratory laparotomy revealed a liter of blood in the peritoneal and the surgeon noted a pale and yellow shock liver. Post-surgery, the patient was returned to the ICU but had already lapsed into a coma. The patient remained in a coma and ventilator dependent for a number of days before the decision was made to transfer her to another hospital. By then, however, her hypovolemic shock had caused irreparable organ damage, in turn causing further deterioration. Ultimately, her family chose to remove her from the ventilator and the patient expired. The matter settled for $1.75 million. Type of action: Medical malpractice Type of injuries: Death Court/Case no./date: confidential; confidential; Dec. 5, 2012 Settlement amount: $1.75 million Attorney for plaintiff: Matthew curtis #34 (tie) It s asserted leg could have been salvaged Nine puncture sites considered proximate cause of child s clotting $1.75 Million In a medical-malpractice lawsuit, plaintiff sought compensatory damages from defendant hospital and defendant medical professionals for the loss of her child s lower leg. The child suffers from severe congenital heart disease. On Oct. 19, 2001, he was admitted to defendant hospital and treated after presenting with fussiness, decreased feed- MCKEEN ing and cold hands and feet. This episode took place just over one week after the child had been released from the hospital following his second heart surgery. An echo performed in the cardiology clinic revealed normal heart function with a mild pericardial effusion. The pediatric intensivist noted that the child had tachypnea, tachycardia with cold extremities and intermittent palpable pulses upon arrival to the PICU. Throughout the night, the child s condition failed to improve and nurses recorded that his left femoral arterial line had poor excursion. On the morning of Oct. 20, the child s left lower leg was described as cool while all other extremities were described as warm. The doctors noted that the child s left arterial femoral catheter was non-functioning. The condition of the child s leg remained unstable, and on Oct. 21, the pediatric intensivist noted that the child s foot had a bluish discoloration. It was not until this time that a vascular surgeon was consulted, and he noted that there appeared to be nine puncture wounds where the pediatric intensivist attempted to gain femoral artery access. The surgeon noted that the child had been ischemic ongoing for more than 12 hours, and a thrombectomy was performed, but the condition of the child s left leg did not improve. On Oct. 27, the child underwent a debridement and it was discovered that his anterior and lateral compartments were non-viable. Two days later, the orthopedic surgeon performed an amputation at the knee joint of the child s left lower extremity. The matter settled for $1.75 million. Type of action: Medical malpractice Type of injuries: negligent attempt to remove blood clot, resulting in amputation of left lower extremity through the knee joint Court/Case no./date: confidential; confidential; Dec. 12, 2012 Settlement amount: $1.75 million Case evaluation: $750,000 Continued on page 20

20 B20 Michigan Lawyers Weekly Michigan Lawyers Weekly Continued from page 19 Attorneys for plaintiff: Brian McKeen, Fredrick rosen #34 (tie) Gap sum between policies are disputed Economic loss argued in wrongful death claim for man s dependents $1.75 Million Plaintiff Cheryl Hines, serving as personal representative of the Estate of David Garcia, sought compensatory damages from defendants Michelle and Theodore Noble on claims of wrongful death. Garcia, a divorced 26-year-old who was the father of a 6-year-old son, was killed by Michelle Noble, WAECHTER who turned left in front of Garcia s motorcycle. Two years earlier, Garcia had moved to metro Detroit from Northern Michigan for a job opportunity. Plaintiff s decedent only had one dependant his son, who he arguably only saw every other month for a few hours. The other wrongful death claimants were his grandfather, mother and three half-siblings, who he saw only a few times a year. The umbrella insurance carrier argued that there was no economic loss, because the Social Security death benefits exceeded plaintiff s child support. Initially, it valued the case at less than $250,000. In addition, Michelle Noble only had a $100,000 auto bodily injury policy with AAA, while Federal, carrier for the umbrella policy, picked up at $250,000-$2 million. Arguments were made that the carrier with the umbrella policy did not have to pay anything until or unless the full amount of the gap was paid. Plaintiff s experts were extremely helpful in boarding some economic loss and showing the loss of each claimant. Ultimately, defendant driver and Ted Noble, the owner of the car, entered into a payment agreement, making them responsible for the gap of insurance in the amount of $150,000; a substantial amount of the gap has already been paid by defendants individually. The matter settled overall for $1.75 million. Type of action: Wrongful Death Name of case: Hines, et al. v. Noble, et al. Court/Case no./date: Wayne county circuit court; ni; March 30, 2012 Name of judge: amy Hathaway Settlement amount: $1.75 million Most helpful expert: Barry Grant, cpa, southfield Insurance carriers: aaa, Federal Attorney for plaintiff: Jason Waechter Attorneys for defendant: Dennis Killeen, eric andrezjak #37 Lawsuit over attendant care benefits is settled Carrier refused payment or did so at lower rates after two verdicts $1,731,361 In a federal lawsuit, plaintiff Lorine Watson, next friend to plaintiff s minor, sought attendant care benefits from defendant State Farm Mutual Automobile Insurance Co. Plaintiff s minor, Watson s son, was involved in a milawyersweekly.com March 29, 2006, automobile-pedestrian collision. He suffered a traumatic brain injury, including a sheering injury to the frontal lobe resulting in permanent brain damage and severe executive dysfunction. His doctors prescribed attendant care, which has been provided primarily by his mother and father. Immediately following the accident, State Farm refused to pay for these attendant care benefits. Plaintiffs sued in Oakland County Circuit Court on Feb. 5, 2007, and a trial resulted in a June 13, 2008, jury verdict in plaintiffs favor, but immediately after, State Farm again refused to pay attendant care benefits. Plaintiffs sued again June 18, 2009 in Oakland County. On July 1, 2009, State Farm requested for the suit to be moved to federal court, where on Feb. 16, 2011, plaintiffs obtained a jury verdict in their favor. The court also awarded plaintiffs $223,975 in no-fault attorney fees for State Farm s unreasonable refusal to pay these owed benefits, which plaintiffs appealed, claiming it was not being a reasonable amount given the circumstances of the case. Following the second verdict, State Farm paid attendant care benefits, but did so at an arbitrarily reduced rate, and also only paid for a reduced number of hours. Plaintiffs filed suit in federal court Oct. 27, State Farm s own hired insurance doctor eventually contradicted its stated position for reducing ANDREWS the number of hours of attendant care, but State Farm continued to reduce them anyway. A $1,731,361 settlement was reached, and involves both a pending appeal relating to the award of attorney fees, as well as a third lawsuit seeking proper payment of attendant care benefits incurred after the second trial. The settlement also included an agreement by State Farm to pay a guaranteed rate of $504 per day for attendant care benefits for a period of at least six years into the future. Type of action: automobile first-party no-fault Type of injuries: traumatic brain injury Name of case: Lorine Watson, et al. v. State Farm Mutual Automobile Insurance Co. Court/Case no./date: u.s. District court, eastern District of Michigan; ; sept. 26, 2012 Name of judge: thomas Ludington Name of mediator: robert Harrison Mediation settlement amount: $1,731,361 Most helpful expert: Dr. Kimberly augenstein, physical medicine and rehabilitation, traverse city Insurance carrier: state Farm Attorney for plaintiff: nicholas andrews Attorney for defendant: Michael slater #38 Mom should have been admitted to hospital sooner, plaintiff argues Baby could have been delivered within minutes of initial bleeding $1.7 Million Plaintiff next friend to plaintiff s minor sought compensatory damages from defendant hospital and defendant medical staff on claims of medical malpractice and birth trauma. This was the seventh pregnancy for this mother, who had experienced bleeding complications with MCKEEN five previous deliveries. During this pregnancy, the mother was seen on multiple occasions for complaints of bleeding or spotting. The third trimester ultrasound demonstrated an irregular fetal sac with a hematoma behind it, a clear indication that there has been bleeding previously. The ultrasound also demonstrated a placental previa. The plan was made to deliver at weeks gestation rather than wait for the bleeding episode. At 32 weeks, mother awoke to discover that she was bleeding heavily. She immediately was transported to the hospital miles away from home. There was a dispute as to the time of arrival at the hospital and when mother delivered her child at the hospital; it was undisputed that a third-year resident did a pelvic examination. Plaintiff s experts soundly criticized the resident for doing a pelvic exam, which is known to be dangerous and contraindicated in the presence of a placenta previa. After performing his belt examination, the resident contacted obstetrics at 5:15 am. Fetal heart monitoring revealed heart tones in the 40s and a stat C-section was called. The baby was delivered at 5:47 a.m. Plaintiff s expert testified that this was inappropriate under these most exigent circumstances. The child was later discovered to have suffered injury to the paraventricular region as a consequence of his birth hypoxia ischemia. The child was left with severe neurological disabilities manifesting as spastic diplegia cerebral palsy. Plaintiff contended that defendant obstetricians violated the standard of care by not admitting plaintiff to the hospital at 28 weeks gestation due to her total placental previa. It was argued that, if plaintiff were admitted to the hospital, the baby could have been delivered within minutes of the initial bleeding, and any subsequent complications of delivery would have been minimal. The matter settled for $1.7 million. Type of action: Birth trauma, medical malpractice Type of injuries: Hypoxic ischemic encephalopathy Court/Case no./date: confidential; confidential; nov. 5, 2012 Settlement amount: $1.7 million Attorney for plaintiff: Brian McKeen #39 Point of impact argued in fatal car accident Plaintiff says crash was in fog lane; defense says center line $1.675 Million The estate of plaintiff s decedent sought compensatory damages from defendant employer and defendant driver for wrongful death and injuries plaintiff passenger sustained in an auto accident. On Dec. 1, 2010, at approximately 7:20 p.m., defendant driver was driving a white Ford F350 pickup truck on a slick, snow-covered road, on behalf of defendant employer. The truck had just been purchased from a dealership, and the vehicle was being driven back to Traverse City. As defendant driver was coming up a hill, the back wheels of the vehicle began to slide. She lost control of the vehicle. Her truck left the lane in which she was traveling and entered the northbound lane. Plaintiff driver tried to move the vehicle toward the shoulder to try to avoid defendant s truck, which ran into plaintiff s car, killing her. Plaintiff passenger, her son, incurred injuries including a pelvis fracture; a cut between his fourth and fifth fingers on his left hand; and pulmonary contusions, neck discomfort, abdominal pain, elbow pain, and left lower-extremity pain. Debris on the roadway showed that the collision happened near the plaintiff s far right white line (fog lane) in the northbound lane. The police report put blame on defendant and showed no hazardous action by plaintiff driver/decedent. The matter settled for $1.675 million. Type of action: third-party auto negligence Types of injuries: Death of plaintiff driver, fractured pelvis of plaintiff passenger Court/Case no./date: confidential; confidential; Jan. 7, 2012 Tried before: Mediation Settlement amount: $1.675 million Most helpful expert: tim robbins, accident reconstructionist, Bay city Attorney for plaintiff: Bradley Harris Keys to winning: cross-examination of defendants liability experts; willingness to go to trial