MI focus Michigan Lawyers Weekly by mikeholy

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									                            2010 Million-Dollar

                         Verdicts & Settlements
      Improper corporate sale,sexual
      harassment,head-on snow crash
      among top verdicts. page B2

      Construction project’s non-completion,
      sales commission disputes
      on this year’s list. page B7

      Accounting earnings fraud,
      noxious odor from sludge
      in landfill reported.
      page B19

      Drug manufacturer slapped
      with $500 million in punitive
      damages. page B20

      This section includes verdicts and settlements of $1 mil-
      lion or more obtained in 2010 that were reported to
      Michigan Lawyers Weekly and verified before Dec. 23,
      We would like to thank the attorneys who sub-
      mitted their reports to Lawyers Weekly through-
      out 2010. While many of these reports were
      published in the “Verdicts & Settlements”
      section of the newspaper, others appear in
      this section for the first time.
      Lawyers Weekly acknowledges that there
      have been other verdicts and settle-
      ments of $1 million-plus reached in
      2010. This section, however, includes
      only those verdicts and settlements
      properly reported to us and verified
      by deadline.
      If your verdict or settlement that
      was properly reported with all
      required information was
      mistakenly omitted from this
      list, please contact Douglas J.
      Levy at (248) 865-3107
      or douglas.levy@mi.lawyersweekly.com.

Settlements skyrocket past 50%; verdicts drop 87%
By Douglas J. Levy                                       award totals, the 2009 and 2010 totals would        intentional interference with a company’s in-    apprentice who said she was sexually ha-
                                                         have been nearly similar.                           terest, and aiding and abetting in the improp-   rassed and subjected to a hostile work envi-
   Compared to 2009’s figures, the number                   Settlements, however, were a different sto-      er sale of the interest at a fire-sale price.    ronment over a four-year period.
and values of submitted verdicts, settle-                ry. There were 45 total reports for settle-            In the Kent County trial, shareholders of        And in the third-highest verdict, Dykes v.
ments and class-action lawsuits in the 2010              ments in 2010, reflecting a 33 percent dif-         a reorganized LLC, a broker of repossession      Singh, $6.3 million in present and future eco-
edition of Michigan Lawyers Weekly’s “Mil-               ference to the 30 published in 2009.                services, were sent letters purporting to ask    nomic and non-economic damages was award-
lion-Dollar Verdicts & Settlements” had no-                 And the monetary total topped $125 mil-          them to consider and vote on a proposed          ed to a driver injured a snowy, head-on auto ac-
table peaks and valleys.                                 lion, which was more than double the $61.2          transaction with another company. However,       cident. Injuries weren’t contended, but the issue
   There were 65 total reports submitted,                million figure posted for 2009.                     it was contended, the board of directors’ and    of liability was, and a black-ice theory was pro-
which reflects a 13 percent increase over the               As for class-action suits, there were only two   shareholder consents had already been exe-       vided — but ultimately rejected by a Kent
57 published in 2009.                                    reports for 2010, compared to the seven pub-        cuted, rendering any vote meaningless.           County jury — for the accident’s occurrence.
   But, unlike 2009, which had the highest               lished in 2009. The $15.59 million total value         As well, it was asserted, one executive had      The top three settlements were a dispute
reported verdict at $300 million, there                  was a drop of 90 percent compared to 2009’s         been threatened by another to push through       over a combined-sewer overflow project
weren’t any eight- and nine-figure verdicts              $155.4 million, and the top class-action suit of    the offer, claiming that there would be no       ($9.15 million) and two auto parts sales com-
among the 18 submitted for 2010.                         $12.3 million was the only case among the 65        value out of ownership in the LLC — when         mission suits ($8.5 million and $8.3 million),
   Rather, the verdict awards in 2010 totaled            overall reports that reached eight figures.         the LLC was actually worth more than de-         while a $12.3 million settlement over lost se-
nearly $56 million — an 87 percent drop from                The top three jury verdicts all took place       fendants claimed it was.                         curities values accounted for 2010’s top
the 2009 figure of $415 million among 20 re-             in west Michigan — two in Kent County                  It resulted in a $7.98 million verdict, and   class-action suit.
ports — with the top verdict at $7.98 million.           Circuit Court and one in U.S. District Court        an appeal is expected.
   It should be noted, however, that 2009’s              for the Western District of Michigan.                  The federal jury in the second-highest ver-   If you would like to comment on this story,
top verdict was $300 million; had that ver-                 The No. 1 verdict was Ward, et al. v. Idsinga,   dict, Waldo v. Consumers Energy Co., award-      please contact Douglas J. Levy at (248) 865-
dict not been included in the overall verdicts           et al., which involved claims of wrongful and       ed $7.9 million to a female transmission line    3107 or douglas.levy@mi.lawyersweekly.com.
B2 • Michigan Lawyers Weekly                                                      January 10, 2011                                                                  Cite 25 Mich.L.W. 226

                                          LARGEST VERDICTS  sale was void ab initio as a matter of law, and that Ren-         • Being intentionally pinned, taped, and trapped for

                                                   #1       ovo had converted RRS’ interest.
                                                              The jury found for the plaintiffs, awarding
                                                                                                                              more than 20 minutes in a portable toilet by her male
                                                                                                                              • On a cold, windy December day, being told to climb
                                                                                                                              transmission towers and tighten bolts without the
Shareholders claim                                          Type of action: Commercial litigation, business tort
                                                            Type of injuries: Sale of corporate interest at fire-sale price
                                                                                                                              proper training and safety equipment.
                                                                                                                              • Degradation including being told to clean tobacco
improper corporate sale                                     Name of case: Ward, et al. v. Idsinga, et al.
                                                            Court/Case no./Date: Kent County
                                                                                                                              spit and chew that male crew members had spat on
                                                                                                                              the floor, and being forced to urinate “like the men”
                                                                                                                              working in the field. Her supervisor reminded her
at fire-sale price                                          Circuit Court; 07-03872-CK; Nov. 18,
                                                            2010                                                              that she needed to do whatever the male crew mem-
                                                                                                                              bers told her, or else she would be the first to go.
Side deals, threats to gain control                         Tried before: Jury                                                • Being ignored by crew members, who refused to
                                                            Name of judge: Dennis B. Leiber                                   work, help, or assist her on some of the jobs, or alert
of LLC at improper value asserted                                                                                             her about safety issues and hazards on the job.
                                                            Case evaluation: $4.5 million
                                                                                                                                 Plaintiff asserted that, upon complaining to supervi-
$7,978,530                                                  Highest offer: $2.8 million                                       sors, management, and human resources personnel
   In a lawsuit filed in Kent County Circuit Court,         Verdict amount: $7,978,530                       COURTADE         about the egregious conduct, defendant routinely disre-
plaintiffs Michael C. Ward Sr. and Robert Tinucci                                                                             garded her complaints. It also was contended that her
                                                            Most helpful expert: Justin Cherfoli,                             male co-workers were never interviewed, investigated,
sought damages from defendants Scott Idsinga, Kevin
                                                            CPA/ABV, Southfield                                               reprimanded, or otherwise disciplined following her
Flynn, Renovo Services, LLC, and Emerald Ventures,
Inc., for claims of wrongful and intentional interference   Attorneys for plaintiffs:                                         complaints, and that the company took no immediate
with Renaissance Recovery Solutions, Inc.’s interest,       Bruce A. Courtade, Paul A. McCarthy,                              action.
and aiding and abetting in the improper sale of the in-     Stephen J. Hulst                                                     Defendant contended that plaintiff failed to estab-
terest at a fire-sale price.                                                                                                  lish the elements of her claim, namely that she was
                                                            Attorneys for defendants: Richard A.
   In 2005, Recovery Solutions, Inc. (RRS), a broker of                                                                       subjected to unwelcomed sexual harassment and that
                                                            Kay, Molly E. McManus
repossession services, was reorganized as Renaissance                                                                         the harassment unreasonably interfered with her
Recovery Solutions, LLC, with RRS being the holding         Status: Post-judgment motions have                                work performance.
company that owned an 83.7 percent interested in the        begun; appeal expected.                          MCCARTHY            It also was asserted that defendant exercised rea-
LLC. Ward and co-plaintiff Robert Tinucci were mi-                                                                            sonable care to prevent and promptly correct any sex-
nority shareholders in RRS, owning 26 percent and 3                                                                           ually harassing behavior, and that plaintiff unreason-
percent, respectively, of its stock.
   Flynn was appointed to lead the LLC through his
company, Emerald Ventures (EVI), and through an-
                                                                                                                    #2        ably failed to take advantage of any preventive or
                                                                                                                              corrective opportunities provided by the employer or
                                                                                                                              to avoid harm otherwise.
other company, Renovo Services. Flynn owned 16.3                                                                                 The jury found for the plaintiff and awarded
percent of the LLC through EVI and Renovo, then,
through side deals and threats with Idsinga, RRS’
                                                            Line worker says she                                              $400,000 in compensatory damages and $7.5 million
                                                                                                                              in punitive damages.
president, made efforts to purchase RRS’ 83.7 percent
interest. In 2006, RRS’ board of directors wanted the       was subjected to vile,                                            Type of action: Sexual harassment, hostile work
                                                                                                                              environment, Title VII of the Civil Rights Act of 1964
sale, but the deal was ultimately voted down by the
   In March 2007, Ward attempted to collect the
                                                            abusive environment                                               Type of injuries: Psychological and emotional distress,
$530,000 that he loaned Idsinga in June 2006. In his        Woman asserts company did                                         Name of case: Waldo v. Consumers Energy Co.
attempts, it was discovered that Flynn had managed to
get RRS’ board of directors to approve the sale of RRS’     nothing to end sexual degradation                                 Court/Case no./Date: U.S. District
interest in the LLC for $892,000 — which plaintiffs al-                                                                       Court, Western District of Michigan;
leged was a means of Flynn getting the LLC rolled into      $7.9 million                                                      1:06-CV-00768; Oct. 4, 2010
Renovo for future growth in the latter company.                In a lawsuit filed in U.S. District Court for the West-        Tried before: Jury
   Though a notice to RRS shareholders was sent out         ern District of Michigan, plaintiff Theresa Waldo sought
March 22, 2007, purporting to ask them to consider and                                                                        Name of judge: Janet T. Neff
                                                            damages from defendant Consumers Energy Co. for
vote on the proposed transaction, the board of directors’   claims of sexual harassment, hostile work environment,            Verdict amount: $7.9 million
and shareholder consents had already been executed.
                                                            and violation of Title VII of the Civil Rights Act of 1964.
   Plaintiffs asserted that Idsinga had been threatened                                                                       Special damages: $400,000
                                                               In 2001, after four years of working in mail services
by Flynn to push through the offer, claiming that RRS                                                                         compensatory damages, $7.5 million               DREW
                                                            and meter reading for Consumers Energy, Waldo entered
would never receive any value out of its ownership in                                                                         punitive damages
                                                            a four-year, in-house apprenticeship program in the com-
the LLC — when the LLC was actually worth more
                                                            pany’s transmission line department. Over the course of           Most helpful expert: Dr. Donald Van
than defendants claimed it was.
                                                            the apprenticeship, she cited such abusive incidents as:          Ostenberg, psychologist, Grand
   Defendants contended that plaintiffs had made ill-
                                                            • Being told by her immediate supervisor, Jim McDon-              Rapids
advised investments in RRS, and because of lack of due
diligence from the beginning, were not entitled to dam-     ald, that she and other women were not wanted, wel-               Attorneys for plaintiff: Stephen R.
ages from the LLC’s sale.                                   comed, or accepted in the department, and that it was             Drew, Adam C. Sturdivant
   The court granted partial summary disposition in         his intention to wash her out.
                                                                                                                              Attorneys for defendant: P Leni
plaintiffs’ favor, finding that the March 2007 transac-     • Being subject to routine foul and sexually offensive
                                                                                                                              Staley, Michael T. Edwards
tion was void under RRS’ bylaws. Because the transac-       language in her workplace, including ongoing derogato-
tion was not legally approved, the Court found that the     ry references to plaintiff as a female.                           Status: On appeal.

 5th         $3.7M
                                                             Value of the top 5
 4th         $4.5M
                                                            verdicts in Michigan

                  $14.1M                                                                                                                                                         2007
 2nd           $9.1M
                                         $47.68M                                                                                                                                 2009
               $7.9M                                                                                                                                                             2010
 1st                      $24M
       $0M              $25M            $50M       $75M     $100M         $125M           $150M             $175M       $200M          $225M          $250M            $275M           $300M
Cite 25 Mich.L.W. 227                                                               January 10, 2011                                                         Michigan Lawyers Weekly • B3

                                                               for the program, but backed out of the agreement in               Defendant contended that it was at its sole discretion

                                                  #3           February 2005 (a substitute third-party administrator
                                                               was found thereafter). TheraMatrix alleged that in late
                                                               2004 and early 2005, Blue Cross officials told Ford that
                                                                                                                               as to where in the United States DHL’s services would
                                                                                                                               be provided. It was further asserted that plaintiff failed
                                                                                                                               to make timely payments to defendant, and that there
                                                               if it went ahead with the carve-out program, the au-            was an outstanding debt of $673,211 owed for services
Woman suffers                                                  tomaker could lose its hospital discounts.
                                                                  In April 2006, 15 days after DaimlerChrysler an-
                                                                                                                                 After granting summary disposition, the judge found

extensive injuries                                             nounced it was going to pursue a similar carve-out plan
                                                               with TheraMatrix, Blue Cross terminated TheraMatrix
                                                               as a participating provider for its health plans in
                                                                                                                               for the plaintiffs and awarded $4,084,886 in damages
                                                                                                                               and pre-judgment interest.
                                                                                                                               Type of action: Breach of contract
in snowy crash                                                 Michigan.
                                                                  Blue Cross then sent letters to insurance agents, doc-       Type of injuries: Lost profits
                                                               tors and companies alerting them of this, but did not           Name of case: The Service Source,
Witness says driver tried to pass front                        indicate reasons why. Eighteen months later, Blue               Inc., et al. v. DHL Express (USA), Inc.
                                                               Cross restored TheraMatrix to the participating
car; black ice asserted by defense                             provider list, but at the bottom of the list.                   Court/Case no./Date: Lenawee
                                                                  TheraMatrix asserted Blue Cross breached its agree-          County Circuit Court; 09-3258-CK;
                                                               ment to be third-party administrator to the Ford pro-           July 12, 2010
$6,291,666                                                     gram. It was further asserted that Blue Cross’ actions          Tried before: Judge
   In a lawsuit filed in Kent County Circuit Court,            caused the Ford program to be scaled back to a                                                                      MORGAN
plaintiff Angela E. Dykes sought compensatory dam-             statewide plan instead of nationwide, and that by doing         Name of judge: Margaret M.S. Noe
ages from defendant Tarlochan Singh for injuries sus-          so, there was tortious interference. As well, it was ar-        Demand: $3.5 million
tained in an auto accident.                                    gued that the DaimlerChrysler deal did not happen be-
   Dykes and Singh were driving in opposite directions         cause of defendant’s tortious interference.                     Highest offer: $250,000
on M-57 between Grand Rapids and Greenville in                    Blue Cross contended that it did not have a third-party      Verdict amount: $4,084,886
snowy conditions. Singh lost control of his vehicle,           administrator contract with TheraMatrix for the Ford
crossed the centerline of the highway, and hit Dykes                                                                           Most helpful expert: Bruce Knapp,
                                                               matter, and, further, if there was a breach of it, it was not
head-on.                                                                                                                       accountant, Troy
                                                               the cause for TheraMatrix’s damages associated with
   Dykes underwent multiple orthopedic surgeries, fol-         Ford’s scaling back of its relationship with plaintiff.         Attorneys for plaintiff: Courtney E.
lowed by intensive care for the first couple of weeks, then       It was further contended that there was not a busi-          Morgan Jr., Keefe A. Brooks                         BROOKS
hospitalization for 2½ months. Hardware was put into           ness relationship that existed between TheraMatrix
both femurs; both feet and ankles were fractured; there                                                                        Attorney for defendant: Withheld
                                                               and DaimlerChrysler, and that Blue Cross was not the
were thoracic and cervical spine injuries and hip, hand        precipitating cause that would have interfered with             Key to winning: Clear presentation of damage proofs
and arm damage; and the right knee cap was disfigured.         such a relationship.                                            Status: On appeal.
Long scars from multiple surgeries were sustained.                The jury found for the TheraMatrix, and awarded
   A witness who was following Dykes contended that            $4,100,293 on the breach of contract claim and
Singh was trying to pass the vehicle in front of him, at one
point pulling onto the shoulder to get a view of the traffic
that slowed ahead because of the weather conditions.
                                                               $449,052 on the tortious interference claim.
                                                               Type of action: Breach of contract,
                                                               tortious interference with economic
   Plaintiff had a successful counseling practice, was an
                                                               and business relationships
adjunct professor at Spring Arbor University, and was
working on a degree in nursing.                                Type of injuries: Lost profits and                              Family says ordinance
   Defendant did not assert against plaintiff’s injuries.      business, damaged business
However, the issue of liability was contended, and a black-
ice theory was provided for the accident’s occurrence.
                                                               reputation                                                      singled them out
                                                               Name of case: TheraMatrix Services,
   The jury found for the plaintiff and awarded                Inc. v. Blue Cross Blue Shield of                               Council decision to rezone only
$6,291,666 in past, present and future economic and
non-economic damages.
                                                                                                              YOUNG            their land was discriminatory
                                                               Court/Case no./Date: Oakland
Type of action: Auto personal injury
Type of injuries: Fractures in femurs, ankles, foot, arm,
                                                               County Circuit Court; 08-093506-CZ;
                                                               July 22, 2010
                                                                                                                               $3.6 million
                                                                                                                                  In a lawsuit filed in U.S. District
hands, hip, spine and rib, scarring                            Tried before: Jury                                              Court, Eastern District of Michi-
Name of case: Dykes v. Singh                                   Name of judge: Edward Avadenka                                  gan-Northern Division, plaintiffs
                                                                                                                               Ronald E. Loesel, Arthur Loesel
Court/Case no./Date: Kent County Circuit Court;                Verdict amount: $4,549,345                                      and Valerian Nowak asserted that
08-02596-NI; May 27, 2010
                                                               Most helpful expert: Barry Lefkowitz,                           defendant city of Frankenmuth vio-
Tried before: Jury                                             financial consultant, Southfield                                lated their 14th Amendment equal
                                                                                                          MACWILLIAMS          protection rights by improperly re-
Name of judge: Donald A. Johnston                              Attorneys for plaintiff: Rodger D. Young, Sara K.                                                          KOCHANOWSKI
                                                                                                                               zoning land they owned.
Demand: $1.5 million                                           MacWilliams, Joel H. Serlin                                        In May 2005, the Loesels were in
Highest offer: $135,000                                        Attorney for defendant: Laurine S. Parmely                      agreement to sell 371/2 acres of
                                                                                                                               property to Wal-Mart for $4 million.
Verdict amount: $6,291,666                                     Key to winning: Use of adverse witnesses in cross-              However, in December 2005, the
                                                               examination                                                     city passed an ordinance restricting
Special damages: $125,000 (future lost income)
                                                               Status: Judgment and award of $960,260 in mediation             the size of buildings inside the zon-
Most helpful experts: Dr. James R. Ringler, orthopedic         sanctions are on appeal.                                        ing area that their land sits on to
surgeon, Grand Rapids; Dr. Martin Waalkes, neurosurgeon,                                                                       65,000 square feet. As a result, Wal-
Grand Rapids                                                                                                                   Mart broke off the agreement.
Insurance carrier: AAA Michigan
Attorney for plaintiff: M. Dennis Esmay
                                                                                                                 #5               Plaintiffs asserted that City Man-
                                                                                                                               ager Charles Graham, working with a            YOUNG
                                                                                                                               grassroots group opposed to the retailer, worked to come
                                                                                                                               up with justified ordinance options to prevent Wal-Mart
Attorney for defendant: Kenneth B. Breese
Status: On appeal.
                                                               Reseller says DHL                                               from building a store in the city.
                                                                                                                                  It was further contended that the city chose a “less re-

                                                               forced business to close                                        strictive” method, where the ordinance, which would not
                                                                                                                               allow for anything more than 65,000 square feet to be
                                                  #4           Decision to end domestic air, ground
                                                                                                                               developed, would only be applied to the city’s Commer-
                                                                                                                               cial Local Planned Unit Development zone (CL-PUD).
                                                                                                                               That zone, the majority of which is made up of the Loe-
                                                               services cited as breach of contract
Blue Cross breaches                                                                                                            sels’ property, was the only plot large enough to house a
                                                                                                                               store of Wal-Mart’s 100,000- to 145,000-square-foot size.
                                                               $4,084,886                                                         Additionally, it was asserted, the city was more con-
carve-out plan contract                                           In a lawsuit filed in Lenawee County Circuit Court,
                                                               plaintiffs The Service Source, Inc. and The Service Source
                                                                                                                               cerned with the interests of several other local busi-
                                                                                                                               nesses — including the 320,000-square-foot Bronner’s
                                                                                                                               Christmas store — and never took the Loesels’ inter-
Business dropped from network                                  Franchise, LLC sought economic damages from defen-
                                                               dant DHL Express (USA), Inc. for breach of contract.            ests into consideration.
after Ford warned to not take deal                                Adrian-based Service Source had been in business 15             Defendant contended that the city’s future-land-use
                                                               years as a reseller for shipping services, focusing exclu-      master plan for the CL-PUD had never called for large-
                                                               sively on small businesses that needed domestic-only            format retailers to be built there, as larger parcels
$4,549,345                                                     shipping. Service Source had a contract to use Airborne         would be needed to accommodate parking, stormwater
   In a lawsuit filed in Oakland County Circuit Court,         Express Delivery Services exclusively, and when DHL             retention and traffic circulation, among other factors.
plaintiff TheraMatrix Services, Inc. asserted Blue Cross       bought Airborne in 2003, DHL continued the rolling                 It was further asserted that Wal-Mart never asked for
Blue Shield of Michigan committed breach of contract           five-year contract that Service Source had established          injunctive relief or for the ordinance to be struck down
and tortious interference with economic and business           with Airborne.                                                  upon its passing; as such, it was contended, the retailer
relationships.                                                    On Nov. 10, 2008, DHL announced it would cease all           didn’t take the matter seriously enough to fight for it.
   TheraMatrix, a Pontiac-based outpatient physical            domestic shipping service Jan. 30, 2009. Service Source,           The jury found for the plaintiffs and awarded $3.6
therapy company, had been part of Blue Cross’ network          which was in the process of expanding into a franchise,         million.
of participating providers. In 2003, TheraMatrix               attempted to find a substitute shipping service to offer its
                                                               customers, but to no avail, and eventually ceased busi-         Type of action: Violation of 14th Amendment equal
worked with Ford Motor Co. on an outpatient physical-
                                                               ness functions.                                                 protection rights
therapy network carve-out plan, as a means of saving
Ford money on its health insurance costs compared to              Plaintiffs asserted that defendant had an obligation to      Type of injuries: Discrimination, loss of land sale
what it had been paying with Blue Cross.                       fulfill the five-year contract, and contended that there
   Blue Cross agreed to be a third-party administrator         was financial loss that could not be avoided because of it.
                                                                                                                                                                 Largest Verdicts continued on page 4
B4 • Michigan Lawyers Weekly                                                        January 10, 2011                                                                Cite 25 Mich.L.W. 228

                                                                                                                              feet in front of a temporary stop sign, which was on
Continued from page 3                                                                                            #8           skids and held down by sandbags. Give-Em a Brake’s
                                                                                                                              workers had installed the permanent posts for the per-
                                                                                                                              manent stop sign, but left for the day without mounting
Name of case: Loesel, et al., v. City of Frankenmuth
                                                                                                                              the sign.
Court/Case no./Date: U.S. District Court, Eastern
District of Michigan, Northern Division; 08-11131-BC;
                                                              Asset values on                                                   Defense for Colden contended that the stop sign was
                                                                                                                              blocked due to the negligence of the contractors, caus-
March 4, 2010
Tried before: Jury
                                                              bankruptcy questioned                                           ing the accident, and, along with estate for Hija, sued
                                                                                                                              Ace Asphalt and Give-Em a Brake.
                                                                                                                                Defendants put forth a “blackout” defense, and relied
Name of judge: Thomas L. Ludington                            Adversary proceeding filed when                                 on the doctor who read the EKG and opined that defen-
Demand: $3.9 million                                          discrepancies are discovered                                    dant’s decedent had a syncopal episode.
                                                                                                                                The jury issued a $2 million verdict for the plaintiff,
Verdict amount: $3.6 million                                                                                                  assigning 60 percent negligence to Colden and 40 per-
Attorneys for plaintiff: Andrew J. Kochanowski, Jesse Young   $2.905 million                                                  cent to the other defendants.
                                                                 In a lawsuit filed in U.S. Bankruptcy Court for the
Attorney for defendant: David K. Otis                                                                                         Type of action: Auto negligence
                                                              Eastern District of Michigan, Southern Division, plain-
Status: On appeal.                                            tiff The State Bank asserted adversary proceeding for           Type of injuries: Death
                                                              fraud under 11 U.S.C. §523(a)(2)(B) against defendant
                                                                                                                              Name of case: Hija, et al. v. Edw. C. Levy Co., et al.
                                                              John M. Mansour.

                                                    #7           The State Bank lent money to various business en-
                                                              terprises owned or controlled by Mansour, a real estate
                                                              developer, for many years. Two of these loans, a line of
                                                                                                                              Court/Case no./Date: St. Clair County Circuit Court;
                                                                                                                              08-000203-NI; June 4, 2010
                                                                                                                              Name of judge: Peter E. Deegan
                                                              credit extended by The State Bank to J.M. Develop-
Couple awarded pain,                                          ments, Inc. in the amount of $500,000, and a construc-
                                                              tion loan extended by The State Bank to Landings at
                                                                                                                              Verdict amount: $2 million
                                                                                                                              Most helpful experts: James Valenta, Ann Arbor;
suffering in crash                                            Crane’s Cove, L.L.C. in the amount of $2,405,000, were
                                                              the subject matter of the litigation.
                                                                                                                              Suzen Oliver, Brighton
                                                                                                                              Attorney for plaintiff: Jason A. Waechter
                                                                 Mansour guaranteed both obligations because of his
Driver says he suffered fractured                             ownership interest in each borrower. The State Bank                                              .
                                                                                                                              Attorneys for defendant: Michael P Hindelang,
                                                              required defendant to submit annually a personal fi-
vertebrae, TBI and depression                                 nancial statement listing assets and liabilities, and
                                                                                                                              James F. Hunt

                                                              Mansour signed these personal financial statements as           Status: Claims against Give-Em a Brake and Ace Asphalt
$3.5 million                                                  truthful and accurate.                                          settled four days before trial for $1 million. Colden had
   In a lawsuit filed in Jackson County Circuit Court,           When Mansour filed for bankruptcy, The State                 policy limits of $500,000, which were tendered to after
plaintiffs James W. Fairley and Kim Fairley sought            Bank reviewed his bankruptcy schedules, compared                jury verdict. The total payout for the claim was
compensatory damages from defendant Schiber Truck             with defendant’s latest personal financial statement.           $1,557,500, which included $57,500 from two other
Co. and defendant Ray D. Kissick for injuries sustained       It was noticed that the values of assets were a total of        construction companies that settled early in the case.
in an auto-truck accident.                                    more than $3 million lower on the bankruptcy sched-
   On April 4, 2008, James Fairley was stopped on Spring      ules as contrasted with the latest personal financial
Arbor Road at Emerson in Jackson County, waiting to
make a left turn. His turn signal was activated. At the
same time, a semi-truck, owned by Schiber Truck and
                                                              statement, as of the same date. This caused the bank
                                                              to investigate further, and further discrepancies, such
                                                              as defendant’s unpaid personal gambling liability,
                                                                                                                                                                              # 10
                                                              were discovered.
driven by Kissick, was driving west on Spring Arbor. As
Kissick approached the intersection of Emerson, he
failed to stop and struck Fairley’s vehicle in the rear,
                                                                 The State Bank filed an adversary proceeding in
                                                              Mansour’s bankruptcy, seeking a judgment that defen-
                                                                                                                              Company owner claims
causing it to spin around and cross the centerline, where
Fairley was struck by another vehicle.
                                                              dant’s liabilities to the bank were non-dischargeable
                                                              because of Mansour’s fraud pursuant to 11 U.S.C §               fraud in agreement
   Fairley suffered a traumatic brain injury, depression      523(a)(2)(B).
and two fractured vertebrae. He walks with a cane and            After a five-day trial, the court found in plaintiff’s fa-   Joint venture skewed profits and
cannot dance, bowl or read as he once did.                    vor and awarded $2,905,000.                                     control of demolition project
   Defendant’s insurance company, Zurich, took the po-        Type of action: Adversary proceeding in bankruptcy
sition that a Jackson County jury would not award sig-
nificant pain and suffering damages, essentially forc-        Name of case: The State Bank v. Mansour                         $1.94 million
ing, according to plaintiff ’s counsel, the case to trial.    Court/Case no./Date: U.S. Bankruptcy Court,                        In a lawsuit filed in Wayne County Circuit
   Plaintiffs waived an $800,000 excess economic loss         Eastern District of Michigan, Southern Division;                Court, plaintiff NTW Sales LLC contended that
claim, as plaintiff was on Social Security disability, and    08-30529-dof; Sept. 30, 2010                                    defendant North American Dismantling Corp. had
the amount after the set-off would have come to ap-                                                                           committed fraud in connection with the execution of
proximately $160,000.                                         Tried before: Judge                                             a joint venture agreement, which changed the parties’
   The jury returned a $3.5 million jury verdict solely       Name of judge: Daniel S. Opperman                               agreement from a 50/50 split to one giving North
for pain and suffering, and there will be no collateral                                                                       American 65 percent of the profits and control of
source reductions from the verdict amount.                    Verdict amount: $2,905 million                                  the project.
                                                              Attorneys for plaintiff: Stephen P Dunn,
                                                                                               .                                 The two parties were to perform a combination metal
Type of action: Third-party auto negligence in truck
                                                              Stephanie N. Olsen                                              recycling and demolition project at a large vacant paper
                                                                                                                              mill in Berlin, N.H.
Type of injuries: Traumatic brain injury, depression, two     Attorney for defendant: Maynard F. Newman
                                                                                                                                 The owner of NTW Sales claimed that counsel for
fractured vertebrae                                           Status: On appeal.                                              the joint venture, under the direction of the defendant,
Name of case: Fairley, et al. v. Schiber Truck Co., et al.                                                                    deceived the plaintiff regarding the contents of one
                                                                                                                              of the documents he signed at the closing of the
Court/Case no./Date: Jackson County Circuit Court;
08-2759-NI; Dec. 15, 2010
Tried before: Jury
                                                                                                                 #9           agreement.
                                                                                                                                 At the conclusion of the four-week trial, the jury
                                                                                                                              found that North American had indeed committed
Name of judge: Thomas Wilson
Demand: $2.4 million
                                                              Woman runs stop sign;                                           fraud in connection with the execution of the written
                                                                                                                              joint venture agreement, voided the document and en-
                                                                                                                              forced the parties’ original verbal 50/50 agreement.
Highest offer: $1 million                                     kills her, other driver                                         NTW also was awarded half of the remaining $4 mil-
                                                                                                                              lion of proceeds from the project, which had been
Verdict amount: $3.5 million                                                                                                  placed in a court ordered escrow account.
                                                              Doctor who read EKG says woman                                     The jury also found that NTW had the right to 50
Insurance carrier: Zurich
Attorneys for plaintiff: Steven M.
                                                              blacked out at construction site                                percent of the future revenue from the project, which
                                                                                                                              could be as much as $12 million. As well, the jury found
Gursten, Thomas W. James                                                                                                      against all of North American’s counterclaim, wherein
Attorneys for defendant: John Gillooly,          GURSTEN      $2 million                                                      it sought the full $4 million escrow and recovery of an
Robert A. Obringer                                              In an auto negligence lawsuit filed in St. Clair Coun-        additional $1.6 million that it claimed was profit
                                                              ty Circuit Court, plaintiff Linda Hija, personal repre-         wrongfully retained from the project.
Status: The parties agreed to waive appeal in exchange        sentative of the Estate of Frank Joseph Hija, sought
for a “high-low,” no-appeal agreement placed on the record    damages from defendants Edw. C. Levy Co., d/b/a Ace             Type of action: Fraud
on the last day of trial.                                     Asphalt and Paving Co.; Give-Em a Brake Safety, Inc.;           Type of injuries: Loss of income
                                                              and the Estate of Marie C. Colden, following a fatal
                                                              auto accident.                                                  Name of case: NTW Sales LLC v. North American
                                                                                                                              Dismantling Group, et al.
   FAST RESEARCH. FAST DELIVERY.                                On Oct. 17, 2007, Colden, 83, drove through a road
                                                              construction area while it was dark outside. Road work-         Court/case no./date: Wayne County Circuit Court;
                                                              ers were starting to set up for the day. Colden ran the         07-732639-CK; June 4, 2010
   The full text of any opinion                               stop sign, hitting the 54-yar-old Hija’s car and killing
   summarized in Lawyers Weekly                               both drivers.                                                   Tried before: Jury
                                                                The intersection had always been dead-ended to form           Name of judge: Jeanne Stempien
   can be sent directly to you.                               a T, but prior to the construction job; a free-flow ramp
                                                              existed to allow motorists to travel to their right and         Verdict: $1,947,735 to NTW Sales; zero on North
   Place your order with the LW                                                                                               American’s counterclaim
                                                              not have to stop at a stop sign.
   number at the end of the summary.                            The ramp was removed before the accident occurred;            Attorney for plaintiff: R. Christopher Cataldo
   Call 800.678.5297.                                         meaning motorists now had to stop at the intersection
                                                                                                                              Attorney for defendant: George M. Head
                                                              to turn right. A permanent “Right Lane Must Turn
                                                              Right Sign” had been installed by Give-Em a Brake 31            Status: Case settled.
Cite 25 Mich.L.W. 229                                                               January 10, 2011                                                          Michigan Lawyers Weekly • B5

                                                               claimed, resulted in birth trauma.                              abetting fraud, aiding and abetting breach of fiduciary

                                              # 11                On Jan. 4, 2006, White went to Hutzel with contrac-
                                                               tions, but did not know her due date. She had no prena-
                                                               tal care, and gave a history of smoking marijuana dur-
                                                                                                                               duty, civil conspiracy and conversion. Plaintiff was
                                                                                                                               awarded $1.5 million
                                                                                                                               Type of action: General civil
                                                               ing her pregnancy. An ultrasound was performed, and it
Plaintiff seeks benefits                                       was determined that the baby was full term. However,
                                                               there was no amniotic fluid present.
                                                                                                                               Type of injuries: Fraud loss
                                                                                                                               Name of case: Blouin v. Yeo, et al.
for 1994 brain injury                                             Despite a concerning pattern on the electronic fetal
                                                               monitoring as noted in the records, and despite the moth-       Court/Case no./Date: Oakland
                                                                                                                               County Circuit Court; 09-104935-CZ;
                                                               er giving consent for a C-section almost immediately, the
In fifth suit, carrier cites unreasonable                      baby was not delivered for more than six hours. He was          May 12, 2010
                                                               pale at birth, and required immediate resuscitation. He
proof by experts of impairment                                 was transferred to the NICU for six days, then to UM for
                                                                                                                               Name of judge: Daniel P O’Brien                       FAZIO
                                                               extracorporeal membrane oxygenation therapy. He was             Highest offer: $20,000
$1,915,855                                                     diagnosed with cerebral palsy at 3 months old.                  Verdict amount: $1.5 million
   In an automobile no-fault lawsuit filed in U.S. Dis-           Plaintiff’s OB/GYN experts testified that because this
                                                                                                                               Attorney for plaintiff: Sara E.D. Fazio
trict Court for the Eastern District of Michigan, plain-       was a high-risk patient, with a non-reassuring fetal heart
tiff Ricardo Villaflor sought attendant-care benefits          rate pattern, a C-section should have been performed            Attorney(s) for defendant: Withheld
from defendant State Farm Mutual Automobile Insur-             much earlier; instead, it was asserted, defendant delayed
                                                                                                                               Status: On appeal.
ance Co. for a brain injury sustained in a 1994 accident.      more than three hours. Plaintiff’s causation expert testi-
   On Jan. 19, 1994, Villaflor was in an auto accident in      fied that all of the child’s injuries could have been pre-
Highland Park. The Detroit Medical Center chief of neu-        vented had delivery taken place even one hour earlier.
rosurgery at the time said Villaflor suffered a significant
closed-head injury, and diagnosed post-concussive syn-
                                                                  Defendant contended the child’s brain damage was
                                                               caused by either an infection or persistent pulmonary hy-
                                                                                                                                                                                 # 14
drome requiring cognitive evaluation and therapy.              pertension in the pre-natal period and/or events following
   State Farm was told by Dr. Gerald Shiener, Villaflor’s
psychiatrist, that Villaflor would need 24-hour atten-
                                                               the child’s birth. It also was asserted that the mother’s
                                                               lack of pre-natal care, use of marijuana, and absence of
                                                                                                                               Tumor bleeds into
dant care because of “poor impulse control and poor            amniotic fluid were potential causes of the child’s injuries.
judgment.” However, State Farm cut off Villaflor’s bene-
fits eight months after the accident, and was ordered in
                                                                  The jury found for the plaintiff and awarded
                                                                                                                               brain, causes coma
a July 1996 lawsuit to continue attendant-care benefits.
                                                               Type of action: Medical malpractice, birth trauma               Estate says decedent’s condition left
   When benefits were cut off two months after that, an-
other lawsuit arose in 1997 to have past benefits paid         Type of injuries: Cerebral palsy, spastic quadriplegia          untreated 3 days after admission
for, for which State Farm settled on the eve of trial.
                                                               Name of case: Ma’Kieran Moss, et al. v. Hutzel Hospital
State Farm stopped benefits once again in August 2003,
and another lawsuit was filed, resulting in a September        Court/Case no./Date: Wayne County Circuit;
                                                               08-106604-NH; Dec. 17, 2010                                        In a medical-malpractice and wrongful death lawsuit
2006 verdict in Villaflor’s favor.
                                                                                                                               filed in Bay County Circuit Court, plaintiff Allynn Jo
   State Farm appealed the verdict, but the 6th U.S.           Tried before: Jury                                              Woodard, personal representative of the Estate of
Circuit Court of Appeals upheld it. State Farm then
                                                               Name of judge: Gershwin Drain                                   Chester L. Woodard asserted that defendants Dr.
paid for attendant-care benefits for the next eight
                                                                                                                               Dhana Dev Shrestha, Dr. William Lawrence Howard
months, but stopped payments in November 2007.                 Demand: $350,000                                                and Bay Area Health Clinic were negligent by not cor-
   Defendant contended through expert medical exam-
                                                               Verdict amount: $1,500,002                                      rectly handling a brain tumor.
iners that it was uncertain that plaintiff incurred a
                                                                                                                                  On Feb. 17, 2003, Chester Woodard, 49, went to Bay
brain injury, and that reasonable proof of medical at-         Most helpful experts: Dr. Ronald Zack, OB/GYN, Livonia;         Medical Center with signs and symptoms of a pituitary
tendant-care services was not provided in the claim.           Dr. Michael Berke, Livonia; Dr. Ronald Gabriel, pediatric       mass, a potentially life-threatening but curable brain
   Plaintiff asserted that examination by several State        neurology, Los Angeles                                          tumor. A brain CAT scan and MRI confirmed the condi-
Farm doctors over the years concluded he suffered a
                                                               Insurance carrier: DMC                                          tion. Shrestha, Woodard’s family doctor, hospitalized
brain injury, and that no-fault attendant-care benefits
                                                                                                                               him at Bay Medical Center.
were to be provided per MCL 500.3107.                          Attorney for plaintiff: Ronald S. Bowling                          On Feb. 18, Dr. Gerald Russell Schell, a neurosur-
   The jury found for the plaintiff and awarded $1,209,036
                                                               Attorneys for defendant: Charles W. Fisher, Thomas R. Shimmel   geon, determined that Woodard should probably be on
on May 21, 2010. A final judgment of $1,915,855 — includ-
                                                                                                                               steroids, and if his condition worsened from an en-
ing attorney fees of $469,000 — was entered Oct. 5, 2010.      Status: Defense plans to appeal.
                                                                                                                               dochronologic or visual standpoint, he would need ur-
Type of action: Auto no-fault                                                                                                  gent surgery.
                                                                                                                                  On Feb. 20, at 4 a.m., Woodard’s condition was noted
Type of injuries: Traumatic brain injury
Name of case: Villaflor v. State Farm Mutual Automobile
Insurance Co.
                                                                                                            # 13               to have worsened. Shrestha was contacted by phone
                                                                                                                               about 5:35 a.m. regarding Woodard’s neuro status. At
                                                                                                                               9:15 a.m., Woodard was transferred to ICU, where an
Court/Case no./Date: U.S. District Court, Eastern District
of Michigan; 2:07-CV-13939; May 21, 2010 (final
                                                               ‘Neither admits nor                                             intubation failed.
                                                                                                                                  At 10:45 a.m., Schell determined that urgent surgery
judgment Oct. 5, 2010)                                                                                                         was necessary, and Woodard was sent to the OR. Sur-

Tried before: Jury                                             denies’ is disputed                                             gery began for a pituitary apoplexy at 11:38 a.m., when
                                                                                                                               it was discovered that the tumor bled into the pituitary
Name of judge: Bernard A. Friedman                             Co-defendant’s answers deemed                                   region of his brain.
                                                                                                                                  Surgery ended at 2:52 p.m., and Woodard remained
Demand: $1 million
                                                               admissions in mortgage fraud scheme                             in a coma. He was discharged April 30 to an extended
Highest offer: $20,000 plus release                                                                                            care facility, and died on May 15, 2003.
of lifetime benefits                                                                                                              Plaintiff asserted that Woodard’s brain tumor was not
                                                               $1.5 million                                                    correctly treated, and his condition was untreated for
Verdict amount: $1,209,036                                       In a lawsuit filed in Oakland County Circuit Court,           three days following admission to the hospital. Plaintiff’s
Final judgment: $1,915,855                                     plaintiff Joseph D. Blouin sought damages from defen-           experts testified that Woodard’s life would have been
                                              ANDREWS          dants Robert V. Yeo Jr., Ricardo del Valle, American Se-
(including attorney fees of $469,000)                                                                                          saved had he been correctly cared for by Shrestha.
                                                               curity Real Estate Partners LLC and Michael R. Sayers              Defendant contended that pituitary apoplexy was not
Most helpful experts: Dr. Gerald Shiener, forensic             from a fraud scheme.
psychiatry, Birmingham; Dr. Robert B. Ancell, vocational                                                                       within Shrestha’s expertise to treat and, as such, called
                                                                 The scheme involved defendants’ request for a short-          for the appropriate specialists (infectious disease, neu-
rehabilitator, Southfield                                      term loan to provide emergency financing for a real es-         rology, neurosurgery, and endocrinology) to care for the
Attorney for plaintiff: Nicholas S. Andrews                    tate transaction that had purportedly fallen through.           pituitary tumor.
                                                               As security for the loan, defendants gave plaintiff mort-          Further, it was asserted, the specialists consulted by
Attorney for defendant: James F. Hewson
                                                               gages on two commercial properties. In reality, there           Shrestha asserted that surgery was necessarily delayed
Key to winning: Providing a color-coded timeline               was no pending real estate transaction, and the mort-           because of a concern for bacterial meningitis, and that
highlighting when the accident took place; litigation points   gages had been signed by entities that had no owner-            it would be inappropriate to do brain surgery in the
over the years; medical expert analyses; and when              ship interest in the properties.                                presence of such a suspected infection.
defendant did and didn’t provide attendant-care benefits         Plaintiff obtained default judgments against Yeo, del            The jury returned a $1,419,149 verdict for the plain-
Status: On appeal.                                             Valle and American Securities after the court granted           tiff’s estate.
                                                               plaintiff’s motion to strike their answers on the basis
                                                               that they had each altered the signature block on Say-          Type of action: Medical malpractice, wrongful death

                                              # 12             ers’ answer and filed it as their own.
                                                                 While Sayers had filed an answer, it was largely non-
                                                               responsive in that it consisted of a nearly unwavering
                                                                                                                               Type of injuries: Coma, death
                                                                                                                               Name of case: Woodard, et al., v. Lawrence, et al.
                                                               recitation of the statement “Defendant neither admits           Court/Case no./Date: Bay County Circuit Court;
Hospital accused of                                            nor denies but leaves Plaintiff to his proofs.”
                                                                 Plaintiff then filed a motion for summary judgment
                                                                                                                               06-3144 NH-C; Feb. 1, 2010
                                                                                                                               Tried before: Jury
delaying C-section                                             pursuant to MCR 2.116(C)(9) and (10), citing, inter alia,
                                                               the Michigan Supreme Court decision in Pitcher v.
                                                               Pitcher, 314 Mich. 648 (1946), which held that where a
                                                                                                                               Name of judge: William J. Caprathe
                                                                                                                               Demand: $50,000
Defense points to lack of amniotic fluid,                      defendant answers a plaintiff’s charges by neither ad-
                                                               mitting nor denying them, it shall be considered an ad-         Verdict amount: $1,419,149
mom’s pot use as contributors to CP                            mission on all matters of which the defendant must be           Insurance carrier: ProNational
                                                               considered to have personal knowledge. Because the
$1,500,002                                                     fraud allegations against Sayers were specific with re-         Attorney for plaintiff: Albert J. Dib
 In a lawsuit filed in Wayne County Circuit, Ebony             spect to his actions, his responses of “neither admits          Attorney(s) for defendant: Withheld
White, plaintiff mother of plaintiff minor Ma’Kieran           nor denies” were deemed admissions.
Moss, sought compensatory damages from defendant                 The court granted summary judgment against Sayers             Status: Case settled.
Hutzel Hospital following a birth that, plaintiff              on each count against him, including fraud, aiding and                                            Largest Verdicts continued on page 6
B6 • Michigan Lawyers Weekly                                                       January 10, 2011                                                                 Cite 25 Mich.L.W. 230

                                                              small amount of those funds were recovered, most were          Name of case: Torres, et al. v. Henry
LARGEST VERDICTS                                              wired to advanced-fee scam artists out of Nigeria.             Ford Macomb Hospital
Continued from page 5                                            The weaknesses in financial procedures in the trea-
                                                                                                                             Court/Case no./Date: Macomb
                                                              surer’s office were either present or developed during
                                                                                                                             County Circuit Court; 4621-NH, 4622-
                                                              the period that Defendants were conducting audits for

                                                # 15          Plaintiff. The current treasurer and a majority of the
                                                              county commissioners testified they would have been in
                                                              favor of changing the procedures had defendants made
                                                                                                                             NM; July 8, 2010
                                                                                                                             Tried before: Jury
                                                                                                                             Name of judge: Diane M. Druzinski
Garbage truck accident                                        any recommendations about these weaknesses.
                                                                 Defendants contended that plaintiffs were aware of
                                                              the conditions and chose not to do anything about them.
                                                                                                                             Verdict amount: $1.215 million
                                                                                                                             Most helpful expert: Dr. Steven
causes impairment                                                Plaintiffs asserted that they relied on defendants to
                                                              perform their audits within the standard of care, and
                                                                                                                             Swartz, general surgery, Richmond, Va.

                                                              that included making recommendations to remove the             Attorneys for plaintiff:
Defense cites comparable                                      material weaknesses that were present. Plaintiffs’ ex-         Scott Weidenfeller, David J. Winter,
                                                                                                                             Lisa Esser
negligence; jury disagrees                                    pert testified that failing to make such recommenda-
                                                              tions to Plaintiff was a breach of the standard of care.       Attorneys for defendant:
                                                                 The jury for the plaintiffs and awarded $1 million,         Lee A. Stevens, Barbara A. Roulo
$1.4 million                                                  with the court approving $216,537 in case evaluation
   In a lawsuit filed in Wayne County Circuit Court, plain-   sanctions.                                                     Status: Entry of judgment being
tiff Teresa Casillas sought damages from defendant City                                                                      worked out. No settlement or                    WINTER
of Detroit following a minivan/garbage truck accident.        Type of action: Accounting malpractice                         appeal yet.
   Casillas was driving a number of children home from        Type of injuries: Theft of county funds
school in southwest Detroit. When she got onto Colonial
Street, she began to follow a city garbage truck. About
two blocks later, the truck stopped and the plaintiff
stopped, but then the truck backed into her, totaling
                                                              Name of case: County of Alcona, et al. v. Robson
                                                              Accounting, Inc., et al
                                                              Court/Case no./Date: Iosco County Circuit Court;
                                                                                                                                                                           # 18
Casillas’ minivan and injuring her.
   Casillas eventually was disabled from her job as an
                                                              08-1111-NM; Aug. 30, 2010
                                                              Tried before: Jury
                                                                                                                             Malpractice claimed
office cleaner and, ultimately, permanently disabled.
She has undergone extensive neck and back surgeries.
   Plaintiff filed for default against all defendants who
                                                              Name of judge: William F. Myles
                                                              Verdict amount: $1,216,537
                                                                                                                             over wrong assessment
had failed to answer interrogatories, request to pro-                                                                        Surgery center site didn’t have
duce, produce liability witnesses for deposition or an-       Special damages: $216,537 case evaluation sanctions
swer any discovery.                                           Most helpful expert: Gary Leeman, CPA, Farmington Hills        egress, but attorney said otherwise
   On the eve of trial, defense counsel refused to admit
                                                              Attorneys for plaintiff: L. Neal Kennedy, Jerald K. Juncker
liability and plaintiff moved for default. Default was                                                                       $1 million
granted on liability, but defense was allowed to argue        Attorney(s) for defendant: Withheld                               In a legal-malpractice lawsuit filed in Oakland Coun-
comparative fault.                                                                                                           ty Circuit Court, plaintiff MD Property Management,
                                                              Status: Judgment with case evaluation sanctions entered.
   Defendant contended plaintiff was following too close                                                                     LLC sought damages from defendants Laurence E.
                                                              Post-trial motions complete. Defendant has filed an
to the truck, and if she was at the appropriate distance                                                                     Winkour and Dickinson Wright PLLC after an ease-
from the truck, the accident would not have happened.                                                                        ment on a property was inaccurately assessed for dedi-
Further, counsel argued for, and received, an instruction                                                                    cated egress.
of presumption of negligence for violation of statute.
   The jury found that plaintiff was negligent, but said
that her negligence was not a cause of her injuries, and
                                                                                                           # 17                 MD Property Management was formed as a limited lia-
                                                                                                                             bility company to investigate and acquire a suitable prop-
                                                                                                                             erty for construction of an ambulatory surgery center.
awarded $1.4 million in past noneconomic and future                                                                          The individual members of the LLC are physicians, pri-
economic and noneconomic damages.
Type of action: Auto negligence
                                                              Woman, 75, is severely                                         marily involved in ophthalmologic and plastic surgery.
                                                                                                                                The LLC consulted with attorney Winkour and law

Type of injuries: Cervical and lumbar fusions                 burned in ICU accident                                         firm Dickinson Wright while the acquisition was still in
                                                                                                                             the investigative stages, and the attorneys were in-
                                                                                                                             volved in looking at and evaluating multiple potential
Name of case: Casillas v. City of Detroit, et al.
                                                              Thermocauterization unit gets too                              sites for the surgery center.
Court/Case no./Date: Wayne County Circuit Court;
                                                                                                                                A building was selected in Troy, and the defendants
08-118180-NO; Feb. 24, 2010                                   close to oxygen mask, causes flash fire                        were responsible for all of the title work, contracts, and
Tried before: Jury                                                                                                           legal work associated with the purchase of the building,
Name of judge: Gershwin A. Drain
                                                              $1.215 million                                                 negotiations with the seller and finalization of the sur-
                                                                 In a lawsuit filed in Macomb County Circuit Court,          gery center plans.
Demand: $1 million                                            plaintiffs Edith and Michael Torres, as co-next friends           Nine months after the multimillion-dollar site was pur-
Highest offer: $500,000                                       of Valerija Milosevic, sought economic and non-econom-         chased, and after the LLC had invested an additional $3
                                                              ic damages from Henry Ford Macomb Hospital for in-             million into building improvements, the LLC was advised
Verdict amount: $1.4 million
                                                              juries suffered following a fall and a fire.                   by a third party that the primary easement for egress out
Insurance carrier: Self-insured                                  Milosevic, 75, was admitted to Henry Ford Macomb on         of the parking lot to the main road (Maple Road) was not
Attorney for plaintiff: Daniel Romano                         Oct. 22, 2007, as she was suffering a heart attack. She        accessible to the building and its patrons. On further in-
Attorney(s) for defendant: Withheld                           was stabilized, then admitted to the ICU and was diag-         vestigation, it was determined that an easement for dedi-
                                                              nosed of “anoxic brain injury” by her treating physicians.     cated egress from the patient parking lot was non-existent.
Status: Case closed.                                             Five days later, her condition was improving, but be-          Plaintiffs asserted that, during the acquisition
                                                              cause she was heavily medicated and agitated, she was          process, the individual physician members of the LLC
                                                              restrained to her bed. When a nurse removed the re-            had been repeatedly advised that such an easement ex-
                                                # 16          straints, Milosevic fell and sustained a massive cut
                                                              over her left eye and forehead.
                                                                                                                             isted and that the building would benefit from the exis-
                                                                                                                             tence of the easement “in perpetuity.” It further was
                                                                 A resident attempted to cauterize the wound, in an ef-      contended that the attorneys had made similar state-

Firm accused of                                               fort to stop the bleeding, but failed to turn off the pure
                                                              oxygen flowing into her non-rebreather mask. When the
                                                                                                                             ments, in precisely the same language, to other inde-
                                                                                                                             pendent consultants involved in the project.
                                                              resident applied a thermocauterization device, which              The jury found for the plaintiffs and awarded $1 mil-
not taking action                                             reached up to 900 degrees, it caused a flash fire, resulting
                                                              in first- and second-degree burns, and a medically induced
                                                                                                                             lion. Damages were assessed on the basis of testimony
                                                                                                                             of the doctors regarding the lost value, expert testimo-
Inaction is asserted after $1 million-                        coma that lasted several weeks. She required around-the-       ny from a qualified architect, factual testimony from
                                                              clock care at a nursing home once she was revived.             the owner of the easement, and information associated
plus in county funds are stolen                                  Defendant argued and filed a motion early in the            with easement over adjacent properties.
                                                              case regarding whether the fire accident was ordinary
                                                                                                                             Type of action: Legal malpractice
                                                              negligence or medical malpractice, and the court ruled
$1,216,537                                                    in defendant’s favor early in discovery stating that           Type of injuries: Damages resulting to a limited liability
   In a lawsuit filed in Iosco County Circuit Court, plain-   medical malpractice law would apply to this action. The        company from mistake made in real estate title
tiffs County of Alcona and the Alcona County Board of         parties then proceeded to trial on consolidated cases —
Commissioners asserted that defendants Robson Ac-                                                                            Name of case: MD Property Management, LLC v. Winokur, et al.
                                                              one on the performance of the cauterization procedure
counting, Inc. and The Rehmann Group, LLC breached            that led to the fire, the other case for ordinary negli-       Court/Case no./Date: Oakland County Circuit Court;
the standard of care by not addressing weaknesses in          gence relating to whether the bedrails were up or down         2009-102959-NM; Oct. 22, 2010
the financial procedures of the county treasurer’s office.    when plaintiff exited her bed and fell.                        Tried before: Jury
   Robson and Rehmann were the auditors that con-                Defendant argued that the performance of the cau-
ducted annual audits for Alcona County for a number           terization procedure by their resident physician, which        Name of judge: Phyllis C. McMillen
of years. During that time, the former county treasurer       resulted in a flash fire, was “within the standard of          Highest offer: $50,000
changed financial procedures in the treasurer’s office to     care” applicable to the field of general surgery.
eliminate a second person reconciling the books.                                                                             Verdict amount: $1 million
                                                                 The jury found for the plaintiff and awarded
   Additional material weaknesses in the financial pro-       $165,000 in economic damages and $1.05 million in              Special damages: Interest, case evaluation sanctions
cedures of the treasurer’s office were noted in the field     non-economic damages based on the medical malprac-             Most helpful experts: Steven Matta, attorney, Bloomfield
notes of the auditors.                                        tice claim, for a total of $1.215 million. The jury ruled
   However, plaintiffs asserted, Robson and Rehmann                                                                          Hills; Frank Carnovale, architect, Birmingham
                                                              against the claim of ordinary negligence for the fall
failed to make any recommendations to plaintiffs about        from the bed.                                                  Attorney for plaintiff: Lawrence J. Acker
appropriate measures that should have been taken to
                                                              Type of action: Medical malpractice, ordinary negligence       Attorneys for defendant: Sharon M. Woods,
address these weaknesses. As a result, the former
                                                                                                                             Daniel J. LaCombe
treasurer was able to wire more than $1 million in            Type of injuries: Facial burns and scarring with
county funds into his personal accounts. Though a             extended recovery                                              Status: Case closed.
Cite 25 Mich.L.W. 231                                                              January 10, 2011                                                           Michigan Lawyers Weekly • B7

                       LARGEST SETTLEMENTS
                                                              million, making the city’s total recovery $9,154,383.              Arbitrator for plaintiff: Stephen K. Valentine Jr.

                                                #1            Type of action: Construction litigation, breach of contract
                                                              Name of case: Walbridge Aldinger Co. v. City of Dearborn, et al.
                                                                                                                                 Attorneys for defendant: Daniel D. Swanson, Kevin Stoops
                                                                                                                                 Arbitrator for defendant: Jerold E.D. Lax

Responsibility for                                            Court/Case no./Date: Wayne County Circuit Court; 08-
                                                              110035-CK; March 17, 2010

damages contested                                             Tried before: Mediation                                                                                                  #3
                                                              Name of judge: Prentis Edwards
Combined-sewer overflow project’s                             Name of mediator: James Rashid                                     Supplier says there was
non-completion leads to lawsuits                              Mediation settlement: $9,154,383
                                                              Most helpful experts: Raymond Castelli, construction and           a violation of agreement
$9,154,383                                                    geotechnical foundation specialist, New York; John
                                                              Wisniewski, construction and substructure design                   Settlement reached after 6th Circuit
   In a lawsuit filed in Wayne County Circuit Court,
                                                              specialist, Baltimore
Walbridge Aldinger Co. sought damages from the city                                                                              affirms verdict for unpaid commissions
of Dearborn and Travelers Property Casualty Co. of            Insurance carriers: Travelers Property Casualty Co. of
America in a dispute over damages to a construction           America, Travelers Casualty and Surety Co. of America,
project.                                                      Federal Insurance Co.                                              $8.3 million
   The city filed counter-claims against Neyer, Tiseo &                                                                            In a lawsuit filed in U.S. District Court for the East-
                                                              Attorneys for plaintiff: David M. Hayes, David T. Dekker,
Hindo, Ltd., Travelers Casualty and Surety Co. of                                                                                ern District of Michigan, plaintiff Votar LLC sought
                                                              Michael McNamara
America, Federal Insurance Co. and Travelers Property                                                                            damages from defendant HS R&A Co., Ltd. for unpaid
Casualty for breach of contract and breach of contractu-      Attorneys for defendants: Gary K. August, Matthew G.               sales commissions.
al indemnification obligations.                               McNaughton, James R. Case, Michele A. Chapnick, K.                   Votar had an exclusive sales representative agree-
   Walbridge was awarded a $33 million contract for the       Clark Schirle, Jonathan T. Walton Jr.                              ment with HS R&A, a Korean auto parts supplier. The
construction of facilities to address a discrete portion of                                                                      agreement provided that Votar would be HS R&A’s ex-
the city’s combined-sewer overflow project (commonly re-                                                                         clusive sales representative in North American for a
ferred to as Contract No. 3). The project was designed
and managed for the city by Neyer, Tiseo & Hindo                                                                   #2            minimum term of five years, beginning April 6, 2001.
                                                                                                                                   In late 2002, HS R&A hired away one of Votar’s key
                                                                                                                                 employees and ceased all communications with Votar.
(NTH). Travelers Property Casualty was Walbridge’s risk
                                                                                                                                 HS R&A subsequently built a manufacturing plant in
insurance carrier, and Travelers Casualty and Surety
and Federal Insurance were Walbridge’s sureties.              Commissions disputed                                               Alabama to supply automotive parts to a Hyundai
                                                                                                                                 plant located there.
   Contract No. 3 called for construction of a massive
caisson (a concrete cylinder) that had walls that were
7 1/2 feet thick, 136 feet in diameter, and to be con-
                                                              after stock purchase                                                 Plaintiff asserted HS R&A breached the agreement
                                                                                                                                 by hiring away Votar’s employee and also by failing to
                                                                                                                                 pay sales commissions to Votar for all purchase orders
structed to a depth of approximately 100 feet into
the ground.
                                                              Company that took over electric motor                              obtained during the initial term of the agreement.
   It was designed to be constructed using the sinking        maker had dropped payments 50%                                       Defendant contended that the parties had agreed to a
caisson method of construction, pursuant to which the                                                                            buyout of the agreement.
caisson was sunk into the ground using its weight,            $8,496,255                                                           On Dec. 5, 2007, the jury reached a verdict of
                                                                                                                                 $3,010,912.49 for commissions owed; $100,000 in penalty
along with the reduction of friction on the inside and           In a lawsuit filed in U.S. District Court for the East-
outside faces of the caisson. As the caisson was sunk                                                                            damages pursuant to MCL 600.2961(5); and life-of-the-
                                                              ern District of Michigan, plaintiff Gerard Thomas Co.,
into the ground, the design called for additional rings of                                                                       part sales commissions of approximately $1.5 million per
                                                              Inc. sought past and future sales commissions from de-
concrete to be added until the caisson achieved its final                                                                        year going forward, totaling approximately $7.61 million.
                                                              fendant S&T Daewoo Co., Ltd.
depth, which, in this case, was bedrock.                                                                                           On March 18, 2010, the 6th U.S. Circuit Court of Ap-
                                                                 Gerard Thomas Co. is a manufacturer’s representa-
   During construction, the caisson sustained serious                                                                            peals affirmed the jury verdict, and on April 29, 2010,
                                                              tive sales agency. S&T Daewoo is a Korean automotive
damages in the form of major cracks and delaminations                                                                            the parties agreed to an $8.3 million settlement.
                                                              parts manufacturer and the successor to Daewoo Pre-
in the concrete that occurred as a result of earth pres-      cision Industries, Inc. (DPI), also based in Korea. De-            Type of action: Sales commission dispute
sures exerted on the caisson as it sunk. Walbridge con-       fendant manufactures electric motors for automotive
tended that the caisson failed due to NTH’s design er-                                                                           Type of injuries: Unpaid sales commissions
rors and differing site conditions. NTH, however,                The relationship between Gerard Thomas and DPI                  Name of case: Votar, LLC v. HS R&A Co., Ltd.
asserted the damage was caused by Walbridge’s con-            started in 1987. There were three separate contracts               Court/Case no./Date: U.S. District Court, Eastern District
struction techniques.                                         that governed the relationship between Gerard Thomas               of Michigan; 05-60125; jury verdict rendered Dec. 5,
   Ultimately, Walbridge sued the city for more than $4       and DPI signed in 1987, 1990 and 2002. S&T Daewoo                  2007; settlement reached April 29, 2010
million, declaring that it had not caused the subject         purchased the stock of DPI in 2006 and immediately
damages. The city then terminated Walbridge’s contract        sought to reduce the payment of commissions owed to                Tried before: Jury
and filed a counter-claim asserting the damage resulted       Gerard Thomas pursuant to the written contracts. Al-               Name of judge: John Corbett O’Meara
from Walbridge’s negligent construction. The city also        though the parties engaged in negotiations, they never
filed a third-party complaint against NTH for breach of       reached a new agreement.                                           Verdict amount: $7.61 million (approx.)
its contractual indemnification obligations and for              Shortly after S&T Daewoo purchased the stock of                 Settlement amount: $8.3 million
breach of contract if Walbridge’s allegations of negli-       DPI, it unilaterally reduced the commission payments
gent design were proven to be true.                           by approximately 50 percent. Thereafter, Gerard                                                                       .
                                                                                                                                 Attorneys for plaintiff: Randall J. Gillary, Kevin P Albus
   As well, the city filed a third-party complaint            Thomas applied some sales dollars belonging to S&T                 Attorney(s) for defendant: Withheld
against Walbridge’s sureties for their failure to com-        Daewoo, which rightfully came into Gerard Thomas’
plete the project. Finally, Walbridge and the city            possession, to the outstanding commissions owed to
brought third-party complaints against Travelers
Property Casualty, alleging that it had wrongfully de-
nied the city and Walbridge’s claims to coverage under
                                                              Gerard Thomas by S&T Daewoo. Thereafter, S&T Dae-
                                                              woo stopped all further commission payments.
                                                                 The arbitration panel awarded
the builder’s risk policy.                                    plaintiff $8,496,255, broken down
   After nearly two years of litigation involving tens of
depositions and the defeat of Travelers Property Casu-
                                                              as $1,996,255 for past due commis-
                                                              sions and $6.5 million for future
                                                                                                                                 Plaintiff says specialist
alty’s motion for summary disposition on Walbridge
and the city’s builders risk-coverage claims, the case
                                                              Type of action: Unpaid commissions
                                                                                                                                 should have been used
was case evaluated before a special case evaluation
panel selected by the parties.                                Name of case: Gerard Thomas Co.,                                   Non-reassuring non-stress test was
   At case evaluation, Walbridge’s claims against the         Inc. v.
city were defeated, and the city was awarded                  S&T Daewoo Co., Ltd.                                               ignored by OB, mother contends
$2,154,383 from Walbridge ($500,000, plus the reten-          Court/Case no./Date: U.S. District               GILLARY
tion of $1,654,383 already earned by Walbridge); $1.5         Court, Eastern District of Michigan;                               $4.875 million
million from NTH; and $7.75 million from Travelers            09-10718; Oct. 26, 2010                                              In a confidential lawsuit, plaintiff next friend of
Property Casualty.                                                                                                               plaintiff twin minor sought damages from defendant
   Travelers Property Casualty contended that there           Name of judge: Bernard A. Friedman
                                                                                                                                 hospitals, defendant OB and defendant neonatologist
was no coverage under the builders-risk policy because        Name of neutral arbitrator: Sharon M. Woods                        for medical malpractice and birth trauma.
there were exceptions in the policy from coverage for                                                                              This case involved twin-to-twin transfusion syn-
                                                              Mediation award: $8,496,255 ($1,996,255 past due
damage caused by defective design and faulty work-                                                                               drome (TTTS), which causes one twin to receive too
                                                              commissions, $6.5 million future commissions)
manship. Following the completion of expert deposi-                                                                              much blood, while the other receives too little, and the
tions and prior to the hearing on the summary disposi-        Attorney for plaintiff: Randall J. Gillary                         complication can be fatal to either twin. The condition
tion motion, the city’s claim was resolved for $5.5                                                                                                           Largest Settlements continued on page 8

                VISIT OUR WEBSITE AT                                           www.milawyersweekly.com
B8 • Michigan Lawyers Weekly                                                      January 10, 2011                                                               Cite 25 Mich.L.W. 232

                                                              The ultrasound showed a 17-day discrepancy between             to maintain a reasonable supervisory system related to
LARGEST SETTLEMENTS                                           her last menstrual period and the size measurements            the oversights in this case. It also was learned that an-
Continued from page 7                                         of the ultrasound.                                             other 40 or so individuals had been defrauded over a
                                                                 Three and a half months later, she was having spot-         13-year period, totaling more than $10 million.
should be suspected when there is “discordant growth”         ting and contractions. She went to the hospital again.           Defendant contended that there was reasonable su-
of the two fetuses, i.e., one is larger than the other.       No translator was brought in. Her initial blood pres-          pervisory system in place, and when broker-agent
   Despite the fact that the twins’ estimated weights were    sure was elevated though not considered abnormal. She          learned what had happened, the assumed rep/RIA was
discordant, plaintiff contended that the defendant OB re-     was placed on a fetal monitor. Lab studies and urinaly-        terminated and the SEC and FBI were contacted.
peatedly noted there was “good symmetrical growth” and        sis for protein were not performed, as would be re-              The matter settled for $4,665,510.
failed to refer the mother to a high-risk specialist. More-   quired with abnormal blood pressures.
over, it was asserted, the OB ignored a non-reassuring                                                                       Type of action: Securities fraud
                                                                 The earlier ultrasound suggested that she might be past
non-stress test (NST), and recommended that the mother        her due date, but she was discharged from the hospital.        Type of injuries: Monetary
return in a few days for further monitoring.                     She was told to follow up with her prenatal doctor,
   At that follow-up appointment, signs of fetal distress                                                                    Name of case: Confidential
                                                              which she did a few days later. Her blood pressure was
were immediately apparent on the fetal heart monitor          elevated in the doctor’s office. No treatment was provid-      Court/Case no./Date: Confidential; confidential; June 25,
strips. The mother was rushed to a nearby high-risk           ed, and she was told to go to the hospital the next day if     2010
hospital, where cesarean delivery soon followed. The          she had spotting.
first twin was clearly asphyxiated, with Apgar scores of                                                                     Tried before: Arbitration
                                                                 The following day, plaintiff presented at the hospital,
1, 5 and 10. Initial arterial blood gasses, which would       complaining of bleeding. An emergency C-section was            Name of arbitrator: Withheld
provide evidence hypoxia ischemia (a lack of blood to         performed for non-reassuring fetal heart tones. The
the brain), were “lost.” The twin initially did well, but                                                                    Demand: $8.6 million
                                                              baby was transferred to the neonatal intensive care
at approximately 13 days post-birth, he developed an          unit and spent seven weeks in the hospital. He was lat-        Settlement amount: $4,665,510
umbilical artery clot due to a catheter.                      er diagnosed with mild cerebral palsy, mental retarda-
   Defendant neonatologist ordered a thrombolytic drug                                                                       Attorney for plaintiff: David M. Foster
                                                              tion, speech and language delays.
(TPA) to dissolve the clot. Plaintiff asserted that use of       Plaintiff asserted that the mother should have been         Attorney(s) for defendant: Withheld
TPA on a premature infant was an experimental inter-          admitted to the hospital on the first visit for further
vention that posed an unnecessary high risk of in-            evaluation of the fetal status, abnormal blood pressure,
tracranial bleeding. The infant did in fact develop a se-
vere intracranial bleed that resulted in severe cerebral
palsy and mental retardation.
                                                              and bleeding, which ultimately would have led to an
                                                              earlier delivery of the baby. It also was contended that
                                                              the 17-day discrepancy between the ultrasound date
   Defendant OB contended that there was no indica-
tion for an earlier delivery and that the cause of the
brain damage was related to the subsequent intracra-
                                                              and the last menstrual period date required follow-up
                                                              and delivery, as it showed the baby was at 42 weeks
                                                                                                                             Man suffers ruptured
nial bleed. However, plaintiff asserted that, had the OB
delivered the infant in a timely manner, the baby would
not have need an umbilical artery catheter for a pro-
                                                                 Defendants asserted that the mother was not in la-
                                                              bor when she first came in to the hospital, and that
                                                                                                                             aneurysm after CT scan
                                                              while her blood pressure was elevated at times, it was
longed period and thus the clot and subsequent TPA in-        not abnormal and did not meet criteria for further
                                                                                                                             Plaintiff asserts signs were apparent
duced bleed would have been avoided.
   The first defendants’ primary defense was that the
                                                              testing. It also was contended that plaintiff was not in       two weeks prior; case settles
                                                              labor and therefore did not require
child’s neurological deficits were solely caused by           admission, and that plaintiff was
the subsequent injury, which occurred at the second           not beyond her due date. Defen-
                                                                                                                             $4 million
hospital. Plaintiffs retained a highly qualified neuro-       dant filed a notice of non-party                                  In a confidential medical malpractice lawsuit, plain-
radiologist to review the child’s cranial ultrasounds,        fault and asserted that the prena-                             tiff patient sought damages against defendant pri-
which showed brain swelling, consistent with an in-           tal treater was responsible for not                            mary care physician, defendant radiologist and defen-
jury before birth that was exacerbated by the subse-          appropriately following up on the                              dant hospital after an aneurysm was undiagnosed via
quent bleed.                                                  day before delivery.                                           CT scan.
   The second defendant contended that the clot in the           The matter settled for $4.75 mil-                              In January 2007, the patient, a middle-aged man,
artery was a life-threatening emergency, and, thus, a         lion.                                                          went to his primary care physician complaining of an
thrombolytic drug was indicated. It was asserted that                                                       REITER           intense headache. The physician referred the patient to
the parents gave a verbal consent via telephone, which        Type of action: Medical malpractice,                           the radiologist, and did not include “cerebral aneurysm”
plaintiff refuted by contending that an ultrasound            birth trauma                                                   in his differential diagnosis upon referring him.
study showed good flow through the artery, and that           Type of injuries: Cerebral palsy,                                 The CT scan, however, demonstrated two aneurysms,
Heparin and watchful waiting were indicated and a             developmental delays, mental                                   and was misread by the diagnostic radiologist as nor-
safer alternative than TPA.                                   retardation                                                    mal. The aneurysm ruptured, resulting in severe neuro-
   A portion of this case was resolved after a settlement                                                                    logical complications and disability.
with a hospital that negligently provided follow-up care      Name of case: Confidential
                                                                                                                                Plaintiff asserted that the signs of aneurysm should
to the same child. The first hospital paid $2.5 million       Court/Case no./Date: Confidential;                             have been diagnosed and treated, and that aneurysms
and the second paid $2.375 million, bringing the total        confidential; August 2010                                      were apparent two weeks before rupture.
compensation to $4.875 million.                                                                                                 Defense did not offer argument.
                                                              Name of judge: Withheld                        SABATINI
Type of action: Medical malpractice,                                                                                            The case settled for $4 million at facilitation.
birth trauma                                                  Settlement amount: $4.75 million
                                                                                                                             Type of action: Medical malpractice
Type of injuries: Cerebral palsy,                             Most helpful expert: InFocus Research Group, Shelby
                                                              Township                                                       Type of injuries: Ruptured aneurysm, hemiplegia, residual
catastrophic motor and cognitive                                                                                             cognitive, neurological damages
deficits due to asphyxia causing                              Attorney for plaintiff: Jesse M. Reiter, Juliana B. Sabatini
hypoxic-ischemic encephalopathy                               Plastiras                                                      Name of case: Confidential

Name of case: Confidential                                    Attorney(s) for defendant: Withheld                            Court/Case no./Date: Confidential; confidential; June
Court/Case no./Date: Confidential;
confidential; July 26, 2010                  MCKEEN                                                                          Tried before: Facilitation

Settlement amount: $4.875 million
Attorney for plaintiff: Brian J. McKeen
                                                                                                                #6           Name of facilitator: Richard C. Kaufman
                                                                                                                             Settlement amount: $4 million

Attorney(s) for defendant: Withheld
                                                              Investment advisor                                             Attorneys for plaintiff: John S. Hone, Brian McKeen
                                                                                                                             Attorney(s) for defendant: Withheld

                                                #5            suspected of fraud
                                                              Claimants say less than one-third of                                                                          #7
Child born late, results                                      money went to real investments
                                                                                                                             Hemorrhage causes
in cerebral palsy,                                            $4,665,510
                                                                 In a confidential lawsuit, plaintiff claimants sought
                                                              damages from defendant broker-agent for monetary               man’s paralysis
developmental delays                                          losses from a securities fraud scheme.
                                                                 In 1997, an agent who purported to be a registered          Experts say scan distinctly revealed
Plaintiff says she should have been                           representative and investment advisor (rep/RIA), creat-        two aneurysms in patient’s brain
                                                              ed a company as a means of diverting client money,
admitted based on signs of distress                           telling clients that the company was a subsidiary of a
                                                              broker-dealer. Once client money was deposited into the        $4 million
                                                              company, it issued fictitious account statements listing          In a confidential medical-malpractice lawsuit, plain-
$4.75 million                                                 fictitious investments. The fictitious account state-          tiff patient sought damages from defendant primary
   In a confidential medical-malpractice and birth-trau-      ments and the financial company’s account statements           care physician and defendant radiology group for fail-
ma lawsuit, plaintiff mother sought compensatory dam-         were indistinguishable.                                        ure to recognize and respond to a subarachnoid hem-
ages from defendant hospital when the C-section birth            Claimants, both in their 60s, were owners of a suc-         orrhage.
of her child resulted in cerebral palsy, developmental        cessful business they started 30 years prior. Over a              In December 2006, the plaintiff, 52, contacted his pri-
delays and mental retardation.                                three-year period, they gave the assumed rep/RIA more          mary care physician twice over two days, complaining
   The mother treated prenatally with a family practice       than $6 million; of that amount, $1.75 million was in-         of the “worst headache ever” that “brought him to his
physician. Neither she nor her husband spoke English.         vested legitimately, while the rest was not.                   knees.” He also was noted to have photophobia and a
Prenatal care was mostly uneventful with the exception           During litigation, it was learned that the broker-deal-     stiff neck.
of an occasional elevated blood pressure reading. Her         er had been subjected to a number of Financial Indus-             Plaintiff asserted that this was a classical presenta-
prenatal doctor sent her to a hospital for an ultrasound.     try Regulatory Authority sanctions and fines for failing       tion of subarachnoid hemorrhage (SAH). It also was
Cite 25 Mich.L.W. 233                                                              January 10, 2011                                                      Michigan Lawyers Weekly • B9

contended that a fundamental tenet of medicine, and a         of numbness and tingling in the same hand and wrist
common medical board exam question, is when sub-
arachnoid hemorrhage is suspected, the patient should
receive a stat CT scan of the brain without contrast —
                                                              two years earlier and, therefore, the carpal tunnel syn-
                                                              drome could not have been related to a sprained wrist
                                                              following the accident.
which, if negative, should be followed up with a lumbar          The matter settled for $3.775 million, with a periodic
puncture (LP) to look for blood in the spinal fluid.
  The primary care physician instructed the patient to
                                                              payment schedule guaranteeing a $6 million payout.            Stroke causes mental,
                                                              Type of action: Third-party motorcycle
report to the hospital for a CT with and without con-
trast a few days later. The physician did not order a
                                                              Type of injuries: Sprained wrist
                                                                                                                            physical impairments
lumbar puncture after the negative CT scan. The radi-
ologist who read the CT scan reported findings as “un-        evolving into complex regional pain                           Decision to treat patient’s aneurysm
remarkable unenhanced and enhanced cranial CT[s].”            syndrome
Plaintiffs’ experts testified that the initial CT scan dis-
                                                                                                                            via coiling leaves her vegetative
                                                              Name of case: Confidential
tinctly revealed two aneurysms in the patient’s brain.
  Days later, the patient was found unresponsive in a         Court/Case no./Date: Oakland                                  $3.5 million
bathroom while visiting his family. He was rushed to          County Circuit Court; confidential;                              In a confidential medical-malpractice lawsuit, plaintiff
the ER, and diagnosed with subarachnoid hemorrhage,           Oct. 29, 2010                                  MORSE          conservator for patient incapacitated individual sought
specifically a ruptured right middle cerebral artery          Name of judge: Shalina Kumar                                  damages from defendant hospitals for a severe stroke
(MCA) trifurcation aneurysm and an unruptured left                                                                          causing catastrophic mental and physical impairments,
MCA bifurcation aneurysm.                                     Highest offer: $2.5 million
                                                                                                                            which left the patient in a near-persistent vegetative state.
  It was contended that the failure to timely and prop-       Settlement amount: $3.775 million                                In mid-June 2006, plaintiff, a 40-year-old married
erly render care in this case resulted in the patient suf-                                                                  mother of two, went to her family physician complain-
fering significant neurological injuries, rendering him       Special damages: Periodic payment
                                                                                                                            ing of severe headache and an increased heart rate. The
permanently paralyzed and depriving him of all of his         schedule guaranteeing a $6 million
                                                                                                                            physician referred her to a southeast Michigan hospi-
wage-earning capacity                                         payout
                                                                                                                            tal. There, in the ER, she gave the same complaints, as
  Plaintiff’s experts testified that, had the aneurysms       Most helpful experts: Dr. Timothy R.                          well as pain radiating to the neck, which is a sign of
been treated upon his initial call to his primary physi-      Lubenow, pain management, Chicago                             subarachnoid hemorrhage (SAH).
cian after his CT scan, plaintiff’s injury would have                                                                          She was given IV Heparin for atria fibrillation (an
                                                              Insurance carrier: Withheld
been avoided.                                                                                                               anticoagulant), and a head CT was ordered. However,
  Defendants contended that there was no pre-existing         Attorneys for plaintiff: Michael J. Morse, Eric M. Simpson    administration of Heparin prior to a CT is a gross viola-
SAH, and that a LP would have been normal. It also                                                                          tion of the standard of care. Although CT scan was neg-
                                                              Attorney(s) for defendant: Withheld
was asserted that a poor outcome can occur following a                                                                      ative for subarachnoid hemorrhage, the hospital failed
ruptured aneurysm even under the best of circum-              Keys to winning: Aggressive discovery and motion              to do a lumbar puncture; whereas the standard of care
stances.                                                      practice, learning every detail about complex regional pain   requires that a lumbar puncture be performed in order
  The matter settled for $4 million.                          syndrome                                                      to completely rule it out.
Type of action: Medical malpractice                                                                                            The patient then was admitted and complained of a
                                                                                                                            severe headache for more than two days. During this
Type of injuries: Failure to diagnose and respond to
subarachnoid hemorrhage, causing paralysis resulting in
loss of quality of life and complete loss of earnings
                                                                                                               #9           time, no diagnostic tests were performed to determine
                                                                                                                            the etiology of the severe headache.
                                                                                                                               On the third day, the patient was found screaming
Name of case: Confidential                                    Township, landowners                                          and experiencing seizures in her room. Shortly there-
                                                                                                                            after, CT results revealed SAH and possible aneurysm
                                                                                                                            rupture. Protamine, a synthesized protein used to stop
Court/Case no./Date: Confidential; confidential; March 2,
2010                                                          clash on 28-acre parcel                                       the effects of anticoagulants, had to be administered to
                                                                                                                            reverse the effect of the Heparin.
                                                                                                                               A consultation was sought by a larger southeast Michi-
Settlement amount: $4 million                                 Damages sought after development                              gan hospital’s neurosurgeon, who recommended that the
Attorneys for plaintiff: Brian J. McKeen, Teresa E. Kasel
                                                              potential of property impacted                                patient be transferred. On admission, the patient was
Attorney(s) for defendant: Withheld                                                                                         semiconscious. A cerebral angiogram revealed a ruptured
                                                                                                                            aneurysm in the anterior communicating artery. At this
                                                              $3.5 million                                                  point, interventional radiology was consulted, and it was

                                                 #8              In a condemnation/eminent domain lawsuit filed in
                                                              Jackson County Circuit Court, plaintiff Blackman Town-
                                                              ship sought to acquire a 28-acre parcel from defendants
                                                                                                                            decided to treat the aneurysm with endovascular coiling.
                                                                                                                            However, the coiling procedure was not a success.
                                                                                                                               The neuroradiologist’s attempts to remove the coil
                                                              G.M. North III, Patricia L. North, Radcliffe F. North,        were unsuccessful, and the coil lodged in the carotid ar-
Injury spreads to pain                                        Consumers Energy Co. and Michigan Bell Telephone Co.
                                                              (now known as AT&T). The defendants sought financial
                                                                                                                            tery. Multiple attempts to remove it failed.
                                                                                                                               The interventional radiology defendant had to admit
                                                              damages for value and damages to property.
in all four extremities                                          Plaintiff Blackman Township acquired, through emi-
                                                              nent domain, a strip of land through defendants’ 28-
                                                                                                                            that when a coil is left extended in the carotid artery, it
                                                                                                                            can cause a stroke and catastrophic damage to the brain,
                                                                                                                            which is what happened to the patient. Plaintiff asserted
Initial impairment a wrist sprain,                            acre parcel, located at the intersection of Interstate 94     that the interventional radiologist should have been able
                                                              and U.S. 127 in Jackson County. The land was for the          to place the coil and restore flow to the carotid artery.
evolves into rare carpal tunnel                               purpose of creating a service drive to access approxi-           The patient then was sent to the ICU, where a neu-
                                                              mately 60 acres of township-owned property to create a        rocheck soon revealed changes in her right pupil, as
$3.775 million                                                multiuse development.                                         sign of damage to the brain. A STAT CT revealed inter-
   On Aug. 6, 2008, the plaintiff, a 32-year-old father of       The township development was made possible when            nal ischemic damage, due to the stroke in the area fed
five sons who worked as a refuse collector, was riding        the Jackson County Airport realigned a runway, there-         by the right internal carotid artery. Two interventional
his motorcycle when the defendant driver turned his           by removing a land-use restriction on the 60 landlocked       neurosurgeries were required to attempt to minimize
vehicle left in front of him causing the accident.            acres owned by the township. The township agreed to           the damage caused by the coil. The patient was left in a
   In the accident, plaintiff bruised and sprained his        sell the property to Ramco-Gershenson Properties              severely impaired state with severe cognitive deficits.
wrist. He refused medical treatment at the scene, but         Trust for a large-scale, multi-use development.                  Defendant first hospital contended the patient’s
later went to the hospital where he was diagnosed with           In order to obtain access to the Blackman Town-            symptoms were inconsistent with an acute SAH, and
a sprain to the wrist. He was splinted and told to follow     ship/Ramco-Gershenson property, it was necessary to           thus, there was no need to perform the appropriate
up with his own physician. No tear or fracture was de-        acquire the right-of-way by eminent domain from the           work-up. The interventional radiology defendant at-
finitively found in the wrist in the following months.        owners of the adjacent 28-acre property. Blackman             tempted to claim that the procedure itself comes with a
   Nearly three months after the accident, he was re-         Township originally offered $185,000 for the 2.5 acres        high risk of morbidity and mortality, and that it was
ferred to an orthopedic hand surgeon who found a posi-        of land needed for the roadway.                               impossible to remove the coil once it became stuck.
tive Tinel’s sign at the carpal tunnel. An EMG showed            Landowners alleged $2.6 million in damages to the             The matter settled for $3.5 million.
minor carpal tunnel syndrome in this wrist. One injec-        remainder for the impact of the roadway on the devel-
                                                              opment potential of the remaining acreage.                    Type of action: Medical malpractice
tion was given. On Jan. 15, 2009, a carpal tunnel re-
lease was performed.                                             Shortly before trial, Blackman Township made a set-        Type of injuries: Severe stroke causing catastrophic
   Within four days after the surgery, plaintiff began to     tlement offer to acquire the entire 28-acre parcel for        mental and physical impairments leaving patient in a near-
show signs of complex regional pain syndrome, a               $3.5 million rather than be at risk of the significant        persistent vegetative state
known but rare complication of a carpal tunnel re-            compensation claimed by the landowners for the taking
                                                              of the right-of-way.                                          Name of case: Confidential
lease, which began to develop in his right hand, wrist
and forearm. Symptoms included mottling, excessive            Type of action: Condemnation, eminent domain                  Court/Case no./Date: Confidential; confidential;
hair growth and swelling throughout the hand; allody-                                                                       Oct. 22, 2010
nia (a pain due to a stimulus which does not normally         Type of injuries: Value, damages to property
                                                                                                                            Settlement amount: $3.5 million
provoke pain) to touch; and limited range of motion of        Name of case: Charter Township of Blackman v. G.M. North
the fingers.                                                  III, et al.                                                   Attorneys for plaintiff: Brian J. McKeen, Teresa E. Kasel,
   Despite more advanced treatment, the condition                                                                           Derek J. Brackon
                                                              Court/Case no./Date: Jackson
spread to all four extremities within a short period of                                                                     Attorney(s) for defendant: Withheld
                                                              County Circuit Court; 10-02075-CC;
time, leaving plaintiff wheelchair-bound and, according
                                                              July 13, 2010                                                                            Largest Settlements continued on page 10
to a vocational rehabilitation consultant, “totally un-
employable.”                                                  Name of judge: Chad C. Schmucker
   Defendant contended carpal tunnel syndrome was
not related to the motorcycle accident, and that carpal
                                                              Demand: $5 million                                              BE SEEN, BE HEARD …
tunnel symptomatology shows up much quicker than              Highest offer: $185,000                                         Share your firm’s news with the people you want to
3½ months, which is what happened in plaintiff ’s case.       Settlement amount: $3.5 million                                 reach at a fraction of the cost of regular mailing —
As well, it was asserted that the carpal tunnel syn-                                                      DYNKOWSKI           run a Professional Announcement in Lawyers Weekly.
drome was coincidental to the accident, and that plain-       Attorney(s) for plaintiff: Withheld
tiff most likely got it from being extremely overweight.                                                                      Call Charlene Boccaccio at 800-678-5297 for info.
                                                              Attorneys for defendant: Alan T. Ackerman, Darius W.
   It also was contended that plaintiff had complained        Dynkowski
B10 • Michigan Lawyers Weekly                                                      January 10, 2011                                                           Cite 25 Mich.L.W. 234

                                                              Type of injuries: Attendant care benefits that were not at   this patient was a high-risk mother. Despite the fact that
LARGEST SETTLEMENTS                                           market rates                                                 she arrived in pre-term labor at 7:30 a.m., defendants
Continued from page 9                                                                                                      did not suspect her to be in labor until 3:30 p.m.
                                                              Name of case: Confidential
                                                                                                                              Despite the mother being at high risk, the attending
                                                              Court/Case no./Date: Confidential; confidential;             OB did not arrive at the mother’s bedside until 5:25

                                              # 10            Nov. 10, 2010
                                                              Tried before: Facilitation
                                                                                                                           p.m., two hours after labor was suspected. The mother
                                                                                                                           developed a fever due to infection in the amniotic fluid.
                                                                                                                           The first twin, the plaintiff minor in this case, was de-
                                                              Name of judge: Withheld
Minor enters woman’s                                          Settlement amount: $3 million
                                                                                                                           livered vaginally with low Apgar scores of 3, 3 and 6.
                                                                                                                           The child now suffers from cerebral palsy, bronchopul-
                                                                                                                           monary dysplasia and apnea, and is permanently im-
house, causes injuries                                        Insurance carrier: Withheld
                                                              Attorneys for plaintiff: Robert F. Garvey, Daniel P Beck
                                                                                                                           paired both physically and mentally.
                                                                                                                              Plaintiff’s experts testified that the mother should
                                                                                                                           have been transferred to a hospital with a neonatal in-
He was provided alcohol by                                    Attorney(s) for defendant: Withheld                          tensive care unit and that the mother should have been
co-defendant earlier; case settles                                                                                         informed of her options, including C-section. Plaintiff’s
                                                                                                                           experts further contended that the attending obstetri-

$3.225 million
   In a negligence and social host liability lawsuit,
                                                                                                           # 12            cians should have recognized cord compression,
                                                                                                                           chorioamnionitis and non-reassuring fetal heart tones,
                                                                                                                           opting to perform a C-section far earlier.
plaintiff homeowner sought damages from defendant
minor and defendant corporation after sustaining lower
spinal-cord injuries resulting in permanent loss of bow-
                                                              Worker entangled                                                Defendant contended that the baby’s brain damage
                                                                                                                           was secondary to prematurity and choiroamnionitis
                                                                                                                           that could have resulted in a bad outcome regardless of
el, bladder and sexual function.
   The injuries occurred as a result of an incident in
                                                              in posthole digger                                           the timing of delivery.
                                                                                                                              The matter settled for $2.75 million.
which defendant minor unlawfully but accidentally en-
tered plaintiff ’s home during the early morning hours
                                                              Defense says machine wasn’t                                  Type of action: Medical malpractice, birth trauma
while in a highly intoxicated state. Prior to the occur-      defective, but was altered                                   Type of injuries: Cerebral palsy, catastrophic motor and
rence of this incident, defendant had been furnished a                                                                     cognitive deficits due to asphyxia in a severely preterm
disputed quantity of alcohol while upon premises                                                                           baby causing hypoxic-ischemic encephalopathy
owned by defendant corporation.                               $2,835 million
                                                                 In a confidential products liability and general negli-   Name of case: Confidential
   Plaintiff’s lawsuit alleged negligence against the mi-
nor defendant, and violation of Michigan’s social host li-    gence lawsuit, plaintiff sought damages following a          Court/Case no./Date: Confidential; confidential;
ability laws against defendant corporation.                   workplace accident that rendered him a quadriplegic.         Nov. 12, 2010
   Although defendant corporation vigorously contested           On March 12, 2007, plaintiff was working as a manu-
                                                              al laborer assisting in digging postholes for a deck in a    Settlement amount: $2.75 million
liability, the parties reached a $3.225 million settle-
ment of all claims by way of mediation.                       residential construction site. While operating the post-     Attorneys for plaintiff: Brian J. McKeen, Teresa E. Kasel,
                                                              hole digger, he became entangled at the universal joint      Derek J. Brackon
Type of action: Negligence, social host liability             between the power take-off and the auger. He became a
                                                                                                                           Attorney(s) for defendant: Withheld
Type of injuries: Severe lumbar spinal injuries               quadriplegic as a result.
                                                                 Plaintiff asserted that the posthole digger was defec-
Name of case: Confidential
                                                              tively designed due to the fact that the guard for the
Court/Case no./Date: Confidential; confidential;
May 2010
                                                              universal joint was not in the proper place. Plaintiff’s
                                                              alternative design was an integral guarding system of
                                                                                                                                                                        # 14
                                                              sufficient size to completely cover the U-joint.
Settlement amount: $3.225 million
Insurance carrier(s): Withheld
                                                                 It was further contended that an integral guard,
                                                              which would prevent the posthole digger from being op-       Plaintiff seeks damages
                                                              erated without the guard in its proper place, would
Attorney for plaintiff: Christopher J. Hastings
Attorney(s) for defendant: Withheld
                                                              have prevented plaintiff’s exposure to the rotating uni-
                                                              versal joint and entanglement.
                                                                                                                           following accident
                                                                 Defendants asserted that the posthole digger was man-     Extra premium paid for to have
                                                              ufactured in accordance with industry standards and not

                                              # 11            defective, and was altered and/or modified by third par-
                                                              ties. It also was contended that the non-party employer
                                                              was fully or partially responsible for the accident.
                                                                                                                           driver with poor record insured
                                                                                                                           $2.72 million
Family contends                                                  As well, defendants claimed that the entanglement
                                                              occurred on the drive shaft and not at the universal
                                                              joint, making plaintiff’s alternative design irrelevant.
                                                                                                                              In a third-party automobile negligence lawsuit filed
                                                                                                                           in the Wayne County Circuit Court, plaintiff driver
                                                                                                                           sought compensatory damages from defendants com-
‘market rates’ weren’t                                           The case settled for a combined total of $2,835,000
                                                              among three defendants through facilitation with
                                                                                                                           munications company and its employee following an
                                                                                                                           automobile accident.
                                                              James Rashid.
paid for attendant care                                       Type of action: Products liability, general negligence
                                                                                                                              On Sept. 24, 2008, plaintiff, 36, and defendant em-
                                                                                                                           ployee, 19, were traveling westbound on I-96. Traffic
                                                                                                                           ahead began to slow, and defendant’s truck changed
Case manager says she raised                                  Type of injuries: Quadriplegia                               lanes into plaintiff’s lane at the same time plaintiff was
                                                                                                                           slowing his vehicle. Defendant rear-ended the plaintiff
concerns over ethical duties                                  Name of case: Confidential
                                                                                                                           at a high rate of speed, and claimed that a vehicle com-
                                                              Court/Case no./Date: Confidential; confidential;             ing from his left into his lane necessitated him to move
$3 million                                                    May 2010                                                     into plaintiff’s lane.
   In a confidential lawsuit, plaintiff guardian/             Tried before: Facilitation                                      Plaintiff sustained injuries including an L5-S1 herni-
conservator for plaintiff male, 26, sought damages from                                                                    ated disc, and underwent both posterior and anterior
defendant no-fault insurance carrier for lost attendant       Name of Facilitator: James J. Rashid
                                                                                                                           fusions at that level. He was disabled from his machin-
care benefits following an auto accident.                     Settlement amount: $2,835 million                            ist’s job as a result of this crash.
   The plaintiff male was catastrophically injured in a                                                                       At the time of the collision, defendant was on his way
motor vehicle accident, and suffered a brain injury that      Most helpful experts: Kevin Sevart, Wichita, Kan.;
                                                                                                                           to work for his employer, defendant communications
resulted in memory loss, seizures, impaired judgment          Gerald Harris, Milwaukee
                                                                                                                           company. He was driving a vehicle that the employer
and impulsiveness. The carrier initially paid the family      Attorneys for plaintiff: Craig E. Hilborn, John S. Hone,     provided, but he was not in the course and scope of his
83 cents per hour for family attendant care, then raised      Kevin C. Riddle                                              employment at the time of the accident.
it to $5 per hour. After hiring counsel, the family got the                                                                   Plaintiff took numerous depositions, including top-
                                                              Attorney(s) for defendant: Withheld
rate raised to $9 per hour, and eventually $14 per hour.                                                                   level management and all of defendant’s supervisors,
   Through discovery on this and other cases against                                                                       and established that defendant employer never looked
defendant, counsel discovered the carrier had actually
made an effort to identify catastrophic-claims files that
clearly demonstrated “underpayment” of benefits. Upon
                                                                                                           # 13            at defendant’s driving record before allowing him to use
                                                                                                                           its vehicle, but rather claimed they relied on its insur-
                                                                                                                           ance company to obtain insurance.
identification of the file, defendant raised its reserves                                                                     The insurance agent was deposed, and testified that
(the dollar amount the carrier perceived to be the fu-
ture exposure on the claim upon its first reporting).         Mother not suspected                                         she could get anybody insurance who had a valid dri-
                                                                                                                           ver’s license, as long as they were willing to pay the ap-
   It did not, however, notify the family of the admitted                                                                  propriate premium. She also admitted that defendant
underpayment, nor did the carrier pay what the law re-
quired as “market rates” for caring for catastrophically
                                                              of being in labor                                            driver had to pay extra premiums in order to get insur-
                                                                                                                           ance, and defendant employer paid these extra premi-
injured family members.                                       Plaintiff: Cord compression, other                           ums based upon the poor driving record.
   Testimony from a case manager for the carrier, who was                                                                     Defendants’ accident reconstructionist testified that
deposed as a fact witness, revealed she was told by man-      factors should have been noted                               defendant was traveling too close to the vehicle ahead,
agement not to volunteer information on market rates.                                                                      and therefore, the defendant could not see the plaintiff
She subsequently raised an ethical concern about being
“ethically bound to represent the interests of the patient,
                                                              $2.75 million                                                and was partially at fault, even if there was another ve-
                                                                 In a confidential medical-malpractice and birth-trau-     hicle involved.
not the insurance company,” but the carrier changed the                                                                       Defendants asserted that defendant employer acted
descriptive title of case manager to do away with such        ma lawsuit, plaintiff next friend of plaintiff minor
                                                              sought damages from defendant hospital for cerebral          reasonably. Also, defendants asserted that extensive
ethical matters, noting that if they were not a “certified                                                                 surveillance showed plaintiff driving, although he testi-
case manager,” they no longer had the ethical duty.           palsy, catastrophic motor and cognitive deficits due to
                                                              asphyxia in a severely preterm baby causing hypoxic-         fied he could not drive; not wearing his back brace, de-
   The matter settled for $3 million at facilitation,                                                                      spite testifying he always wears it; and doing some oth-
which includes past due benefits, penalty interest, at-       ischemic encephalopathy following birth.
                                                                 In late 2004, the mother presented to the regional hos-   er activities that were not in line with his restrictions.
torney fees and exemplary damages.                                                                                            Plaintiff filed a motion in limine to allow plaintiff to
                                                              pital at eight weeks gestation with complaints consistent
Type of action: First-party no-fault                          with active labor for a twin pregnancy. It was clear that    introduce evidence relating to exemplary damages,
Cite 25 Mich.L.W. 235                                                             January 10, 2011                                                     Michigan Lawyers Weekly • B11

based on the defendant employer’s failure to take any        Demand: $4 million                                           nificant neurological injuries.
action in evaluating defendant driver before allowing                                                                       The case settled for $2.6 million.
                                                             Settlement amount: $2.65 million
him to operate its vehicle. In the motion, plaintiff cited
                                                                                                                          Type of action: Medical malpractice, birth trauma
testimony from defendant’s managers, which allowed           Attorney for plaintiff: Michael J. Cunningham
the court to grant this motion.                                                                                           Type of injuries: Cerebral palsy, catastrophic motor and
                                                             Attorney(s) for defendant: Withheld
  The matter settled for $2.72 million.                                                                                   cognitive deficits due to asphyxia causing hypoxic-ischemic
Type of action: Third-party truck
accident, negligence
Type of injuries: Lumbar herniation
                                                                                                        # 16              Name of case: Confidential
                                                                                                                          Court/Case no./Date: Confidential; confidential;
in one disk, requiring two surgeries                                                                                      Oct. 24, 2010

Name of case: Confidential                                   Plaintiff: Mother should                                     Settlement amount: $2.6 million
                                                                                                                          Attorneys for plaintiff: Brian J. McKeen, Phillip B. Toutant
Court/Case no./Date:
Wayne County Circuit Court;
confidential; Oct. 27, 2010
                                                             have known of options                                        Attorney(s) for defendant: Withheld

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

                                                         FAST AND EASY
                                                Report Your Verdicts and Settlements On-line!
B12 • Michigan Lawyers Weekly                                                             January 10, 2011                                                               Cite 25 Mich.L.W. 236

                                                                     promised tax benefits.
Continued from page 11
                                                                        Plaintiffs asserted claims against the entities and in-
                                                                     dividuals who offered the Mare Lease Program and oil
                                                                     and gas program. Also, claims were asserted against
                                                                                                                                                                                   # 20
                                                                     Gastar, with the contention that the programs were de-

                                                 # 17                signed to raise money to develop the oil and gas proper-
                                                                     ties owned by Gastar, which could not have raised that
                                                                                                                                    Drywall specialist falls,
Falling concrete from
                                                                     amount of money on its own.
                                                                        Defendant Gastar denied liability, contending it was        injures head and torso
                                                                     not a party to any of the contracts. In addition, Gastar
                                                                     denied benefiting from the scheme, contending that the         Defendants point blame at each
bridge hits driver                                                   Gastar stock used to promote the oil and gas program
                                                                     was owned and offered by GeoStar.
                                                                                                                                    other for accident; parties settle
                                                                        The plaintiffs settled with Gastar for $2.4 million.
Summary disposition OK’d                                             The claims against other defendants to the case are            $2.25 million
when evidence is thrown away                                         still pending.                                                    In a negligence lawsuit filed in Livingston County
                                                                     Type of action: Breach of contract, RICO, fraud                Circuit Court, plaintiff Gregory Tyree sought compen-
$2.5 million                                                         Type of injuries: Failure to pay investors or provide stock,
                                                                                                                                    satory damages from defendants Aaron and Jessica
                                                                                                                                    Smith; Ronald Goodair; Goodair Builders, Inc.; James
   In a negligent road maintenance lawsuit filed in the              as contractually required                                      Anthony Goodsell; Goodsell Custom Concrete, LLC;
State of Michigan Court of Claims, plaintiff Anthony A.
                                                                     Name of case: AA-J Breeding, LLC, et al. v. Gastar             Masters Home Improvement and Design, Inc.; Kevin
Adeleye sought compensatory damages from the Michi-
                                                                     Exploration, Ltd., et al.                                      Coombe; and Skidoo Carpentry, LLC, following a fall at
gan Department of Transportation following an accident.
                                                                                                                                    a construction site.
   In April 2005, while Adeleye was driving on the                   Court/Case no./Date: U.S. District Court, Eastern District        The Smiths, acting as general contractors for
Southfield Freeway, a chunk of concrete fell from the                of Michigan; 07-CV-12849; Nov. 24, 2010                        their new construction home, contracted with Goodair
bottom of an overpass, went through the car’s wind-
                                                                     Tried before: Jury                                             to do excavating, basement walls and foundation.
shield, and struck Adeleye in the face.
                                                                                                                                    Goodair, in turn, subcontracted with Goodsell to
   The injuries he sustained included head injury,                   Name of judge: Thomas L. Ludington
                                                                                                                                    basement flatwork. Masters was contracted to do
trigeminal neuralgia (a painful condition of the nerve
                                                                     Settlement amount: $2.4 million                                eight projects, including gutters, siding, insulation,
responsible for most facial sensation), broken facial
                                                                                                                                    and roofing. Masters, in turn, subcontracted with
bones, and bowel injuries with iliostomy. Adeleye’s                  Attorneys for plaintiff: E. Powell Miller, Jayson E. Blake,
                                                                                                                                    Kevin Coombe, who operated Skidoo, to do the home’s
colon was irrevocably injured through chronic constipa-              Marc L. Newman, Adam T. Schnatz
tion resulting from pain medications that were taken
                                                                     Attorney for defendant: Jason M. Powers                           Tyree, a drywall specialist, was asked by Masters to
for the pain of the trigeminal neuralgia.
                                                                                                                                    visit the site and come up with a bid for drywall work.
   Defendant asserted that there was no evidence the
                                                                                                                                    While surveying the site, Tyree stepped on a sheet of
concrete was from the bridge, and could have been
thrown by someone on the overpass. No proximate
cause for the colon injury was contended.
                                                                                                                   # 19             cardboard that was covering the basement access. He
                                                                                                                                    fell 10 feet onto the concrete. There were no barricades
                                                                                                                                    or wooden coverings at the 4-foot-by-9-foot hole, and
   The court granted plaintiff’s motion for summary dis-
                                                                                                                                    Tyree was never told that there was a basement.
position on the issue of liability after the state of Michi-
gan discarded the concrete chunk because of the spolia-              Truck driver says faulty                                          Tyree injured his face, skull, torso and shoulder, lost
                                                                                                                                    hearing in one ear, and required extensive surgery to
tion of evidence.
   The matter settled for $2.5 million.                              accelerator caused crash                                       restore his facial nerves.
                                                                                                                                       Defendant Masters contended that defendants
Type of action: Negligent road maintenance                                                                                          Smiths, because they called themselves general con-
Type of injuries: Head injury, trigeminal neuralgia, broken facial
                                                                     Stats for pickup make, model don’t                             tractors, were responsible for the damages, not the sub-
bones, bowel injuries with iliostomy, numerous surgeries.            show similar problem nationally                                contractors on the job, including Masters. Defendants
                                                                                                                                    Smiths asserted that, because Masters hired subcon-
Name of case: Adeleye v. Michigan Dept. of Transportation                                                                           tractors including Coombe and Skidoo without telling
Court/Case no./Date: State of Michigan Court of Claims;              $2.35 million                                                  the Smiths, Masters was responsible. Defendants
06-94-MD; Aug. 16, 2010                                                 In an auto negligence and wrongful death lawsuit            Goodair and Goodsell contended they did not place the
                                                                     filed in Wayne County Circuit Court, plaintiff Kenneth         cardboard atop the basement access.
Tried before: Facilitative mediation                                 Feliks sought damages from defendant Securitas Secu-              Plaintiff asserted that the contract Masters drafted for
Name of judge: Laura L. Baird                                        rity Services USA, Inc. following a fatal auto accident.       the Smiths had a clause that put Masters in control:
                                                                        On April 6, 2008, Feliks was driving with wife Mar-         “The direction and supervision of the working forces, in-
Settlement amount: $2.5 million                                      garet and stepson Christian in Livonia. As the car was         cluding subcontractors, rests exclusively with the builder
Insurance carrier: Self-insured                                      turning left on a green arrow, defendant’s 2005 Chevro-        [Masters], and the owner shall not issue any instructions
                                                                     let Colorado pickup truck, traveling at 61 mph, ran the        to, or otherwise interfere with, the workers. …”
Attorney for plaintiff: David E. Christensen
                                                                     eastbound red light, broadsiding Kenneth Feliks’ car on           Further, it was contended, by referring to contractor
Attorney for defendant: Assistant Attorney General Philip            the passenger side.                                            labels and safety standards as found in the Occupation-
L. Bladen                                                               Margaret Feliks was extracted from the car via jaws         al Safety and Health Administration (OSHA) and
                                                                     of life and airlifted to the hospital, where she died of       Michigan Occupational Safety and Health Administra-
                                                                     her injuries 2½ hours later.                                   tion (MIOSHA) enforcement-instruction field manuals:

                                                 # 18                   Defendant contended product liability for the acci-
                                                                     dent, asserting the driver’s claim of accelerator malfunc-
                                                                     tion including stop-and-go vehicle lunging. The truck’s
                                                                                                                                    • Coombe created the hole but did so under Masters’ employ;
                                                                                                                                    • Both were responsible for exposing employees to the hole;
                                                                     black box, it was further contended, indicated consistent      • Masters had one of its workers correct the problem af-
Investors claim oil-gas                                              “full throttle” and steadily increasing acceleration for a
                                                                     half-mile before and right up to the accident.
                                                                                                                                    ter Tyree was removed from the basement following the
                                                                                                                                    injury; and

stock program not legit                                                 Plaintiff asserted statistics from the National High-
                                                                     way Traffic Safety Administration that reflected only
                                                                                                                                    • Masters had supervisory authority over the site, based
                                                                                                                                    on the contract Masters has with the Smiths.
                                                                     one 2005 year Colorado pickup reporting unintended               The case settled for $2.25 million, with Goodair,
Plaintiffs say deal promised tax                                     acceleration, despite 240,000 of such pickups on the           Goodsell and the Smiths settling for $525,000; Masters
benefits that were unfulfilled                                       road. Also contended were factors such as the driver’s         settling for $850,000; and Coombe and Skidoo settling
                                                                     negligent driving record, which Securitas was unaware          for $875,000.
                                                                     of before the accident.
$2.4 million                                                            In addition, plaintiff pointed to various objects in the    Type of action: Negligence, nuisance
  Plaintiffs and others invested millions of dollars in              front area that may have come into contact with the accel-     Type of injuries: Head, face, torso, shoulder injuries with
the Mare Lease Program, offered by ClassicStar, LLC,                 erator — including the driver’s cane, found between the        residual effects
which allowed investors to lease mares, mate those                   driver and the driver’s door — and a large filing box
                                                                                                                                    Name of case: Tyree, et al. v. Smith, et al.
mares with stallions, and sell the resulting foals. In-              cramping the front seat, which could have affected driving.
vestors also were told that the program offered numer-                  The case settled for $2.35 million.                         Court/Case no./Date: Livingston County Circuit Court;
ous tax benefits that the investors could claim.                                                                                    06-22326-NO; May 6, 2010
                                                                     Type of action: Auto negligence, wrongful death
  Plaintiffs asserted ClassicStar and its principal,
                                                                                                                                    Tried before: Judge
GeoStar Corp., leased far more mares than they owned.                Type of injuries: Death
To disguise this shortcoming, the complaint asserted                                                                                Names of judges: Stanley J. Latreille, Theresa M. Brennan
                                                                     Name of case: Feliks, et al., v. Securitas Security Services
that GeoStar persuaded investors to convert their Mare               USA, Inc., et al.                                              Settlement amount: $2.25 million
Lease Program investment to an oil and gas program,
wherein the investors would own a portion of oil and                 Court/Case no./Date: Wayne County Circuit Court;               Most helpful experts: David Brayton, Portage;
gas properties owned by GeoStar and Gastar Explo-                    09-000388-NI; Jan. 22, 2010                                    Barry Grant, Southfield; Guy Hostetler, Southfield;
ration, Ltd., a publicly traded company.                                                                                            Dr. Hassam El-Kashlan, Ann Arbor; Dr. Robert Fabiano,
                                                                     Names of judges: Wendy Baxter, Paul Teranes
  For converting their investment, investors were                                                                                   Lansing; Dr. Jae Kim, Flint; Dr. Miguel Perez-Pascual, Flint
promised interest and shares in Gastar with a guaran-                Settlement amount: $2.35 million
                                                                                                                                    Insurance carriers: Farm Bureau; Indiana Insurance;
teed put option. However, plaintiffs contended that the              Most helpful expert: Brad Cook, Ann Arbor                      Frankenmuth Mutual; State Farm
investors did not receive the promised money or Gastar
shares, and eventually discovered the programs were                  Attorney for plaintiff: Frederick W. Lauck                     Attorney for plaintiff: John D. Nickola
not only underfunded, but also did not qualify for the               Attorney(s) for defendant: Withheld                            Attorney(s) for defendants: Withheld

                    VISIT OUR WEBSITE AT                                             www.milawyersweekly.com
Cite 25 Mich.L.W. 237                                                               January 10, 2011                                                      Michigan Lawyers Weekly • B13

                                                              commercial lease agreement with Busch’s, a local chain            The carrier initially disclosed a $250,000 primary

                                            # 21              of supermarkets, after purchasing the assets of a
                                                              Busch’s market in Ypsilanti. When Valu Land’s busi-
                                                              ness failed, it defaulted on the sublease, then sued for
                                                                                                                             policy, but plaintiff’s counsel did an asset investiga-
                                                                                                                             tion of defendants, which raised the likelihood of an
                                                                                                                             excess policy. Upon prompting carrier to search for
                                                              fraud and rescission.                                          more insurance, a substantial excess policy was dis-
Officer strikes car while                                        Plaintiff asserted that the Wal-Mart store in the
                                                              same shopping center expanded its competing products
                                                                                                                                The matter settled for $2 million.

responding to accident                                        to an amount more than 5,000 square feet by adding
                                                              food freezers. It was contended that this was in viola-
                                                                                                                             Type of action: Auto negligence
                                                                                                                             Type of injuries: Pelvic, tibia and fibula fractures,
                                                              tion of a restriction on the amount of space that could
Despite flashers being on, siren                              be used for sale of competing products, and that the ex-       herniated discs, leg length discrepancy, drop foot,
                                                              pansion caused the supermarket to fail.                        psychological distress, chronic and debilitating pain
wasn’t; negligence is contended                                  As well, it was asserted that defendant waived its          Name of case: Confidential
                                                              right to enforce the competing-products restriction by
$2.15 million                                                 executing a tenant estoppel certificate, and that defen-       Court/Case no./Date:
   In a confidential lawsuit filed in Macomb County Cir-      dant knew the restriction could not be enforced.               U.S. District Court, Eastern District
cuit Court, plaintiff female driver sought compensatory          Defendant contended that, according to Wal-Mart’s           of Michigan; confidential; May 24, 2010
damages from defendant municipal organization fol-            records, it had always been using more than 5,000              Tried before: Facilitation
lowing an auto accident.                                      square feet of space for competing products, and that no
                                                              waiver occurred because the tenant estoppel certificate        Name of facilitator: Martin G. Waldman
   Plaintiff was driving back to her hospital job at 2:30
a.m. At the same time, an officer was responding to the       at issue was signed after Wal-Mart added the freezer,          Settlement amount: $2 million
scene of an accident. Though he activated his flashers,       and could not have waived anything.
                                                                 It also was asserted that plaintiff was able to observe     Most helpful expert: Barry Grant, CPA, Southfield
he did not activate his siren, as required by law. He
struck plaintiff’s car, which had the green light at the      what Wal-Mart was and was not selling, and that, with          Attorneys for plaintiff: Stuart A. Fraser, Edward E.
intersection.                                                 proper due diligence, plaintiff could have discovered all      Souweidane
   Plaintiff went to work that evening and for the next       of the information it needed to determine whether Wal-
                                                                                                                             Attorney(s) for defendant: Confidential
several days. She went to the emergency room one day          Mart was a threat to its business.
after the accident complaining of a headache, and, two           Defendant also contended that plaintiff waived its
                                                              right to sue defendant in the sublease agreement be-
days later, began feeling neck pain.
   Her injury was diagnosed as a cervical spine injury,
resulting in cervical fusion. The first fusion failed and
                                                              tween the parties, because the sublease expressly stat-
                                                              ed that defendant made no representations or war-
                                                                                                                                                                               # 24
had to be redone. While the injured area was “repaired”       ranties regarding the enforceability of the restrictive
with surgery, plaintiff developed a chronic pain syn-
drome, which disabled her from returning to work as a
                                                              covenant on competing products.
                                                                 After trying the case for three days, the parties           Source of cognitive,
nurse’s aide.                                                 agreed to facilitate and return to trial if facilitation was
   Defendant contended that three prior car accidents
and degenerative arthritis were the real cause of the
                                                              unsuccessful. After two sessions, facilitation settled the
                                                              matter for $2.02 million in favor of defendant/third-par-
                                                                                                                             speech defects disputed
                                                              ty plaintiff Busch’s.
need for plaintiff ’s surgeries. It also was asserted that                                                                   Plaintiff: Distress not recognized;
plaintiff could not have been seriously injured in the        Type of action: Commercial lease dispute, fraud
crash, since she returned to work the night of the acci-
                                                              Name of case: Valu Land, Inc. v. Busch’s, Inc., et al.
                                                                                                                             defense claims genetic problems
dent. In addition, when she did go to the emergency
room the next day, she did not complain of neck pain,
only a severe headache.
                                                              Court/Case no./Date: Washtenaw County Circuit Court;
                                                              07-1264-CK; Aug. 11, 2010
                                                                                                                             $1.9 million
   As well, defendant asserted comparative negligence,                                                                          In a confidential lawsuit, plaintiff mother sought
in that the plaintiff did not see the flashers on the po-     Tried before: Judge                                            compensatory damages from defendant hospital for
lice vehicle.                                                 Name of judge: Timothy P Connors
                                                                                     .                                       medical malpractice during delivery that resulted in
   Plaintiff contended being unable to see the flashers                                                                      birth trauma.
                                                              Name of mediator: James A. Fajen                                  At around 8 a.m. on Feb. 24, 2005, plaintiff went to
because of the angle of the intersection (60 degrees)
and the fact that it was sleeting at the time of the          Settlement amount: $2.02 million to defendant/third-           the hospital. Her physician did not come in to examine
accident causing a diffusion of light. In addition, it        party plaintiff                                                her. The fetal monitoring strips indicted the baby was
was asserted, the pulsing of the wiper blades and the                                                                        not in any distress. At 1:15 p.m., Pitocin was adminis-
                                                              Mediation award: $1 million in favor of defendant/third-       tered continuously.
presence of a strobe light in front of a party store
                                                              party plaintiff                                                   By 7:30 p.m., the fetal monitoring strips were begin-
would, to some extent, “cancel” the pulsating lights on
the patrol car.                                               Attorneys for plaintiff/counter-defendant/third-party          ning to show repetitive variable decelerations, as well
   Plaintiff’s family physician contended that, although      defendant: Frederick D. Elias, Christine R. Essique            as late decelerations. This pattern persisted and wors-
the plaintiff had prior neck complaints, she did not                                                                         ened over the next four hours, and at 8:30 p.m., plain-
                                                              Attorneys for defendant/counter-plaintiff/third-party          tiff was fully dilated and zero station. Despite persist-
have a herniated disc prior to the accident in question.
                                                              plaintiff: Angela L. Jackson, Anthony P Patti                  ent decelerations and decline in long-term variability
   Plaintiff’s treating physicians and one of defendant’s
IME doctors agreed with plaintiff, supporting the fact                                                                       and absent short-term variability between 10-11 p.m.,
that it was not unusual for a disc herniation to mani-                                                                       plaintiff continued in labor.
fest itself days or weeks after trauma.
Type of action: Auto negligence
                                                                                                             # 23               At 11:30 p.m., a discussion took place about
                                                                                                                             “assisted delivery.” At 11:44 p.m., forceps were ap-
                                                                                                                             plied through 3½-inch contractions, and the baby
Type of injuries: Cervical fusion
Name of case: Confidential
                                                              Driver on learner’s                                            was born. His Apgars scores were 3, 4 and 5, and his
                                                                                                                             blood gasses showed metabolic acidosis. He had
                                                                                                                             seizures within 24 hours, and was diagnosed with a
Court/Case no./Date: Macomb County Circuit Court;
confidential; Sept. 2, 2010
                                                              permit causes crash                                            hypoxic ischemic injury.
                                                                                                                                Although the child is fully ambulatory, he does have
                                                                                                                             hyptonia. He has significant speech deficits, difficulty
Name of judge: John C. Foster                                 Suspicion of excess policy prompts                             in swallowing, and cognitive deficits, making it unlikely
Settlement amount: $2.15 million                              investigation, leads to settlement                             he will be self-supporting in the future.
                                                                                                                                Plaintiff asserted child’s injuries were caused by fail-
Special damages: Wage loss in excess of three years
                                                                                                                             ure to recognize distress during labor and deliver the
Most helpful experts: Dr. Robert Farhat, pain management      $2 million                                                     child in a timely manner.
specialist, Pontiac; Dr. Marc Green, visual expert, Toronto      In a confidential lawsuit filed in U.S. District Court         Defendant contended child’s injuries weren’t related
                                                              for the Western District of Michigan, but transferred to       to labor events, but rather were the result of a genetic
Insurance carrier: St. Paul Fire and Marine Insurance Co.     the Eastern District, plaintiff passenger sought eco-          or metabolic abnormality.
Attorney for plaintiff: Robert F. Garvey                      nomic and non-economic damages                                    Following extensive testing to establish the child’s
                                                              from defendant young driver and                                current deficits, the matter settled at facilitation for
Attorney(s) for defendant: Withheld
                                                              defendant parents following an                                 $1.9 million.
                                                              auto accident.
                                                                                                                             Type of action: Medical malpractice, birth trauma
                                                                 Defendant, who was on a learn-
                                            # 22              er’s permit, was the last in a line of
                                                              vehicles to pass a slow-moving ve-
                                                                                                                             Type of injuries: Permanent neurologic, speech and
                                                                                                                             cognitive defecits
                                                              hicle. He realized midstream in his
                                                                                                                             Name of case: Confidential
Supermarkets at odds                                          passing maneuver that he could
                                                              not successfully pass. He crossed
                                                                                                                             Court/Case no./Date: Confidential; confidential; July 2, 2010
                                                              over to the opposite shoulder, then
over terms of lease                                           overcorrected, striking the vehicle,
                                                              in which older-than-60 plaintiff
                                                                                                                             Tried before: Facilitation
                                                                                                                             Name of judge: Withheld
Wal-Mart in same shopping center                              was a passenger, head-on.                                      Name of arbitrator: Bruce Neckers
                                                                 Plaintiff’s injuries included mul-
purportedly violated agreement                                tiple pelvic fractures; tibia and fibu-
                                                                                                                             Settlement amount: $1.9 million
                                                              la fractures; herniated discs at C3-4                          Most helpful experts: Dr. Louis Dvorkin,
$2.02 million                                                 and C5-6; onset of central canal and                           neuropsychologist, West Bloomfield; Kaufman Speech
  In a lawsuit filed in Washtenaw County Circuit              lateral recess stenosis at L2-3, L3-4                          Center, Birmingham
Court, plaintiff/counter-defendant/third-party defen-         and L4-5. There also was leg length
                                                                                                                             Attorneys for plaintiff: J. Douglas Peters, Ann K. Mandt
dant Valu Land, Inc. sought damages from defen-               discrepancy, with the left leg about        SOUWEIDANE
dant/counter-plaintiff/third-party plaintiff Busch’s, Inc.,   an inch longer than the right; drop                            Attorney for defendant: David R. Johnson
asserting fraud and rescission. Busch filed a counter-        foot; and knee damage requiring additional surgery. As         Key to winning: Thorough workup of the case using
claim against Valu Land for breach of sublease agree-         well, plaintiff claimed psychological distress, and loss of    multiple experts and extensive testing to correctly identify
ment and breach of personal guaranty agreements.              enjoyment of life and consortium with his wife, in addi-       child’s permanent injuries
  Valu Land, a supermarket, was the sublessee in a            tion to chronic and debilitating pain.                                                      Largest Settlements continued on page 14
B14 • Michigan Lawyers Weekly                                                         January 10, 2011                                                              Cite 25 Mich.L.W. 238

                                                                  sodium (hyponatremia) just prior to transfer to the sec-     Type of action: Truck negligence
LARGEST SETTLEMENTS                                               ond hospital. He was stable at transfer, but then his        Type of injuries: Lumbar laminectomy with fusion at L1-2
Continued from page 13                                            sodium dropped even further. He also developed cere-         and L2-3, drop foot
                                                                  bral edema from his hyponatremia.
                                                                     He was transferred to a second hospital, which even-      Name of case: Confidential

                                               # 25               tually treated the hyponatremia, but the cerebral edema
                                                                  worsened, and he developed brain herniation and died.
                                                                                                                               Court/Case no./Date: Confidential; confidential; Aug. 24,
                                                                     Defendants contended that the hyponatremia was
                                                                                                                               Name of judge: Confidential
Police officers assault                                           properly treated, and denied the existence of cerebral
                                                                  edema. It also was asserted that the patient died be-        Name of facilitator: Joseph G. Lujan
                                                                  cause of vasospasm secondary to traumatic subarach-
wrong suspect when                                                noid hemorrhage.
                                                                     Plaintiff’s major hurdle was to overcome the defense
                                                                                                                               Settlement amount: $1.8 million
                                                                                                                               Most helpful expert: Dr. Bradley D. Ahlgren, orthopedic

investigating complaint                                           of vasospasm and the argument that the car crash led
                                                                  to a closed-head injury that would have prevented dece-
                                                                                                                               surgery, Troy
                                                                                                                               Attorney for plaintiff: Daniel P Beck
                                                                  dent from providing for his family in the future.
Man suffers cervical disc herniations;                               The case involved experts in trauma surgery, neuro-       Attorney(s) for defendant: Withheld

defense says he provoked the attack                               surgery, nephrology, neuropathology, and neuroradiology.
                                                                     It was noted that the trial judge granted plaintiff’s

$1.825 million
                                                                  Daubert motion and struck the defendants’ expert’s
                                                                  causation testimony. The court ruled that the evidence                                                   # 27
   In a 42 U.S.C. § 1983 and assault and battery lawsuit          clearly showed a brain stem hematoma because of in-
filed in U.S. District Court for the Eastern District of
Michigan, and then submitted to binding arbitration,
                                                                  ward intracranial pressure rather than because of a
                                                                  brain stem infarct secondary to vasospasm, which the         Driver admits fault for
plaintiff James LeBeau sought economic, non-economic              defendants had postulated.
and punitive damages against defendant municipal cor-
poration and its police officers following an assault at
                                                                     After case evaluation and completion of all experts’
                                                                  depositions, the case settled for $1.8 million.
                                                                                                                               crash; injury disputed
plaintiff ’s home.                                                                                                             Defense asserts recovery was good
                                                                  Type of action: Medical malpractice
   LeBeau, a 43-year-old small engine mechanic, was
alone in his home the night of Feb. 9, 2007, when defen-          Type of injuries: Wrongful death                             and TBI wasn’t serious; case settles
dant police officers arrived at the home under the guise
                                                                  Name of case: Confidential
of investigating a misdemeanor complaint that oc-
curred earlier that evening at a different house in the           Court/Case no./Date: Confidential; confidential; July 2010
                                                                                                                               $1.75 million
same subdivision.                                                                                                                In a third-party automobile negligence lawsuit filed
                                                                  Settlement amount: $1.8 million                              in Wayne County Circuit Court, plaintiff Steven M. Bix-
   The officers, who had had earlier confrontations with
LeBeau, pulled him out of the house upon answering                Attorneys for plaintiff: Brian J. McKeen, Terrance J.        by sought compensatory damages from defendants
the door. Defendants beat and kicked LeBeau, then                 Cirocco, Phillip B. Toutant                                  Palmer Moving & Storage Co. and Gerald Reason fol-
yanked him up by his neck and applied pepper spray.                                                                            lowing an auto collision.
                                                                  Attorney(s) for defendant: Withheld                            In August 2008, Bixby was stopped at a red light on
Plaintiff ’s independent witness, who lived across the
street from plaintiff, saw the entire episode and con-                                                                         Franklin Road at Northwestern Highway in Oakland
firmed plaintiff ’s testimony.                                                                                                 County. The light turned green and he proceeded into
   The altercation led to severe cervical disc hernia-
tions, and LeBeau underwent an anterior, cervical dis-
                                                                                                               # 26            the intersection where he was struck by a moving van
                                                                                                                               owned by Palmer Moving and Storage and driven by
                                                                                                                               Reason. Bixby’s vehicle was totaled, and he suffered
cectomy and fusion at C3/C4 and C6/C7.
   Defendants admitted their mistake in going to plain-
tiff’s house in the first place. However, they denied lia-
                                                                  Truck drivers’ collision                                     herniated discs, along with a traumatic brain injury
                                                                                                                               with personality changes.
                                                                                                                                 Reason accepted responsibility for the crash, admit-
bility claiming that the plaintiff provoked the incident
by initially assaulting the officers when he opened his
front door.
                                                                  leads to laminectomy                                         ting at the time of the accident he was “lost” and that
                                                                                                                               he had no idea of the color of the light when he entered
                                                                                                                               the intersection. There also was deposition testimony
   Plaintiff was awarded $1.825 million in binding                Defense says spine was weakened,                             from four witnesses that Reason ran the red light and
Type of action: 42 U.S.C. § 1983, assault and battery
                                                                  would have needed eventual surgery                           caused the crash.
                                                                                                                                 Defendants contended that traumatic brain injury
                                                                                                                               was not serious and that the plaintiff had made a very
Type of injuries: Four cervical disc herniations                  $1.8 million                                                 good recovery post-surgery.
Name of case: LeBeau v. Confidential Municipal                      In a confidential lawsuit, plaintiff truck driver sought     The matter settled for $1.75 million.
Corporation and Police Officers                                   compensatory damages from defendant truck driver fol-
                                                                  lowing a collision.                                          Type of action: Third-party automobile negligence
Court/Case no./Date: U.S. District Court, Eastern District
                                                                    Plaintiff, a 55-year-old professional truck driver, was    Type of injuries: Herniated discs
of Michigan; confidential; May 13, 2010
                                                                  rear-ended by the defendant, also a professional truck       requiring surgery, traumatic brain
Tried before: Arbitration                                         driver, while stopped at a red light.                        injury with personality changes
Names of arbitrators: Barry J. Goodman, Roger Wolcott,              Plaintiff suffered from pre-existing degenerative
                                                                                                                               Name of case: Bixby v. Palmer Moving
Gus Morris                                                        arthritis in his lumbar spine, which required periodic
                                                                                                                               & Storage Co., et al.
                                                                  lumbar epidural steroid injections for temporary pain
Demand: $800,000                                                  relief. The crash aggravated this condition, disabling       Court/Case no./Date: Wayne County
Highest offer: $90,000                                            him from returning to work, causing foot drop prob-          Circuit Court; 09-000073-NI; June 23,
                                                                  lems, and ultimately necessitating a lumbar laminecto-       2010
Arbitration award: $1.825 million
                                                                  my with fusion at L1-2 and L2-3.                             Name of judge: Robert L. Ziolkowski          GURSTEN
Special damages: Lifetime economic and non-economic                 Defendant contended plaintiff caused the collision by
damages                                                           slamming on the brakes to stop at the light. It also was     Settlement amount: $1.75 million

Most helpful expert: Dr. Karol Zakalik, neurosurgeon,             asserted that plaintiff’s degenerative lumbar spine          Insurance carrier: New Hampshire Insurance Co.
Royal Oak                                                         would have required surgery and disabled him anyway,
                                                                  and that undercover surveillance showed plaintiff exag-      Attorney for plaintiff: Steven M. Gursten
Insurance carriers: Self-insured and excess carrier               gerating his disability.                                     Attorney for defendant: Patrick F. Geary
Attorneys for plaintiff: Vincent R. Lorelli, Malgorzata Lorelli     The case settled for $1.8 million.

Attorney(s) for defendant: Withheld
Key to winning: Thorough investigation at inception of
case to rebut police officers’ version of events

                                               # 26                                                                                           only
Patient’s low sodium
leads to complications
Plaintiff’s Daubert motion OK’d,
defense causation is dropped                                                                                                                        Plus receive access
                                                                                                                                                to the new digital edition
$1.8 million                                                                                                                                        of Lawyers Weekly
   In a confidential lawsuit, plaintiff personal representa-
tive estate for plaintiff decedent, sought damages from
defendant physicians for wrongful death stemming from
medical procedures following an auto accident.
   Plaintiff’s decedent, a 40-year-old father of two, was            Call 800-451-9998 or subscribe online at www.milawyersweekly.com
involved in a serious car crash, and was subsequently
hospitalized in a local hospital. Decedent had serious                   and start reading Lawyers Weekly’s new digital edition today.
skull fractures and brain bleeding. He developed low
Cite 25 Mich.L.W. 239                                                             January 10, 2011                                                         Michigan Lawyers Weekly • B15

                                                             been performed in sufficient time to avoid the perma-             Settlement amount: $1.586 million

                                           # 27              nent brain injury.
                                                               Defense contended that, because there was no vaginal
                                                             bleeding and no documentation of unusual complaints of
                                                                                                                               Insurance carriers: North Pointe (It’s A Matter of Taste);
                                                                                                                               Farmers (Foust)
                                                             pain from the mother, it was appropriate for the staff to         Attorney for plaintiff: James O. Elliott
Patient says birth                                           watch the mother, even in the presence of tachysystole
                                                             and elevated resting tones until such time as the fetal
                                                                                                                               Attorneys for defendants: Michael C. Ewing and Thomas J.
                                                                                                                               Ryan (It’s A Matter of Taste); Paul R. Knight (Foust)
injuries were apparent                                       monitor strip began to show signs of fetal decomposition.
                                                               As well, it was asserted that the child’s injuries were         Key to winning: Asserting severity of damages in such a
                                                             mild and were not related to the hypoxic event. Even if           way that it would become clear to all parties involved that
Defendant: Cognitive deficits in child                       was related, it was added, the child’s future would not           insurance policy limits were not sufficient compensation
were from genetic abnormality                                be impacted.                                                      for the loss of one life and the scarring of another
                                                               Experts in OB/GYN, maternal fetal medicine, pedi-
                                                             atric neurology, child psychology, neuropsychology, life
$1.75 million
   In a confidential medical-malpractice and birth-trau-
ma lawsuit, plaintiff next friend of plaintiff minor
                                                             care planning, and economics were offered by both sides.
                                                               The matter settled for $1.65 million.                                                                              #30
                                                             Type of action: Medical malpractice, birth trauma
sought damages from defendant hospital for motor and
cognitive deficits due to asphyxia causing hypoxic-is-
chemic encephalopathy following birth.
                                                             Type of injuries: Permanent brain injury to newborn child,
                                                             mild learning disabilities/developmental delays
                                                                                                                               Medicaid False Claims
   The case was complicated by an atypical presentation
of interpartum hypoxic-ischemic encephalopathy, name-
                                                             Name of case: Confidential                                        Act asserted in scheme
ly the absence of spacticity or cerebral palsy. The defen-   Court/Case no./Date: Confidential; confidential;
dants argued that the child’s injuries were caused by a      Sept. 24, 2010                                                    Drug improperly covered, was not
genetic abnormality or “other unpreventable etiology.”       Settlement amount: $1.65 million                                  FDA-approved for weight-loss
   However, plaintiffs asserted, there was strong evi-
dence of birth asphyxia and global injury to the child’s     Attorneys for plaintiff: Euel W. Kinsey, Brian J. McKeen
brain. Chiefly, plaintiff ’s counsel used the charting of    Attorney(s) for defendant: Withheld
the treating neonatologists, who diagnosed the child                                                                              In a whistleblower lawsuit filed under federal and
with hypoxic-ischemic encephalopathy.                                                                                          several state False Claims Acts, and included a claim
   Moreover, it was contended, the labor and delivery
summary stated that the child was delivered due to
“non-reassuring fetal heart tones/fetal distress.” As a
                                                                                                            # 29               under the Michigan Medicaid False Claims Act, MCL
                                                                                                                               §400.601 et seq., two former pharmaceutical sales rep-
                                                                                                                               resentatives of defendant Ortho-McNeil-Janssen Phar-
result of the failure to perform an earlier cesarean sec-                                                                      maceuticals, Inc. (OMJPI) asserted improper market-
tion, the minor child suffers from motor and significant
cognitive impairments.
                                                             Estate: Daughter                                                  ing of one of its blockbuster drugs, Topamax.
                                                                                                                                  Topamax is approved by the Food and Drug Adminis-
                                                                                                                               tration (FDA) as an adjunct therapy to treat epileptic
   The matter settled for $1.75 million.
Type of action: Medical malpractice,
                                                             suffered emotional                                                seizures. However, it was asserted, OMJPI regularly in-
                                                                                                                               structed its sales representatives to market the drug
birth trauma
Type of injuries: Motor and cognitive
                                                             trauma from fatal crash                                           for weight loss, pain management, and to manage psy-
                                                                                                                               chiatric conditions such as bipolar disorder and
deficits due to asphyxia causing                                                                                               drug/alcohol dependencies, for which Topamax did not
hypoxic-ischemic encephalopathy
                                                             After drunk driver T-bones car,                                   have FDA approval.

Name of case: Confidential                                   girl, 15, witnesses mother dying                                     Federal law prohibits drug manufacturers from mar-
                                                                                                                               keting drugs for non-FDA approved usages, which is
Court/Case no./Date: Confidential;                                                                                             commonly referred to as “off-label marketing.” One of
confidential; July 30, 2010
                                                             $1.586 million                                                    Topamax’s side effects is dramatic weight loss, so physi-
                                            MCKEEN              In a wrongful death/dram shop lawsuit filed in Oak-            cians treating the other “off-label” conditions were al-
Settlement amount: $1.75 million                             land County Circuit Court, the Estate of Agnes Dregely            leged to be prime targets for the marketing efforts.
Attorney for plaintiff: Brian J. McKeen                      and Laszlo Dregely, next friend to plaintiff’s minor Vi-             The Michigan Medicaid program (and other
                                                             vian Dregely, sought compensatory damages from de-                state/federal health care programs) does not provide
Attorney(s) for defendant: Withheld                          fendants Deborah Foust and It’s A Matter of Taste fol-            coverage for pharmaceuticals prescribed for certain off-
                                                             lowing a fatal auto accident.                                     label uses; therefore, it was contended, OMJPI know-
                                                                On March 7, 2008, Agnes Dregely, 49, was driving with          ingly caused false or fraudulent claims for Topamax to
                                           # 28              her 15-year-old daughter, Vivian. At 9:51 p.m., Dregely
                                                             came to a complete stop at a stop sign at the intersection
                                                                                                                               be submitted to, or caused purchases by, the Michigan
                                                                                                                               Medicaid program.
                                                             of M-59 and Hospital Road in Waterford Township, and                 While the case was originally filed in 2003, it re-

Child suffers brain,                                         looked both ways. When traffic cleared, she proceeded to
                                                             pull across the lanes in order to go westbound on M-59.
                                                                                                                               mained under seal for nearly seven years while the fed-
                                                                                                                               eral government investigated the plaintiff’s allegations.
                                                                Foust’s vehicle appeared, speeding eastbound on M-59           During that time, Plaintiffs and their counsel con-
developmental injuries                                       at 67 mph, which was 17 mph over the speed limit.
                                                             Dregely could not avoid Foust’s vehicle, which T-boned
                                                                                                                               tributed to the investigation by assembling a team of
                                                                                                                               researchers and forensic accountants to engage in num-
It’s argued that signs of placental                          the side of Dregely’s car before turning over. Despite her        ber crunching, claims analysis, and other research. The
                                                             seat belt being on, Agnes Dregely’s door post was ripped          complaint was subsequently amended multiple times to
abruption on monitor were ignored                            off, she was torn from the car, and the car was bifurcat-         include causes of action under new-
                                                             ed. Vivian immediately went to her mother’s aid, hold-            er state False Claims Acts, includ-
                                                             ing her while waiting for someone to help them.                   ing the Michigan Act.
$1.65 million                                                   Foust was belligerent and visibly intoxicated when the            In April 2010, a settlement was
   In a confidential medical-malpractice and birth-trauma                                                                      reached whereby OMJPI agreed to
                                                             police arrived, and informed the responding officer that, if
lawsuit, plaintiff next friend of plaintiff minor sought                                                                       pay $75.37 million to the federal gov-
                                                             her car had not flipped over, they never would have
damages from defendant medical organization for perma-                                                                         ernment and Medicaid Participating
                                                             caught her because she would have driven away. Foust re-
nent brain injury to the newborn child, and mild learning                                                                      States (including Michigan) to re-
                                                             fused to provide her blood alcohol level via a breathalyzer
disabilities/developmental delays following birth.                                                                             solve the civil allegation of off-label
                                                             test, but after a warrant was issued and Foust’s blood al-
   Mother presented at term with onset of labor approx-                                                                        marketing. This recovery includes
                                                             cohol level was obtained, it was 0.24 — three times the le-
imately one hour prior to arrival. Initial strip was non-                                                                      $1,503,209 under the Michigan Medi-
                                                             gal limit — more than two hours after the incident.                                                             HARON
reassuring. Membranes were ruptured by the medical                                                                             caid False Claims Act. As well,
                                                                Agnes and Vivian Dregely were eventually transport-
staff and internal leads placed. Fetal monitor strips                                                                          $619,266 was returned to the Michi-
                                                             ed to Pontiac Osteopathic Hospital, where Agnes died
showed evidence of tachysystole (contractions coming                                                                           gan Medicaid Trust Fund, with the
                                                             at approximately 12:17 a.m. March 8, 2008.
too close together) and elevated resting tones from the                                                                        remaining monies being returned to
                                                                Plaintiff asserted defendant It’s A Matter of Taste
onset of the placement of internal leads.                                                                                      the government.
                                                             broke dram shop law by serving defendant Foust when
   Attending physician did not appear for more than
                                                             she was visibly intoxicated, thus resulting in the acci-          Type of action: Michigan Medicaid
two hours after the mother presented to the hospital.
                                                             dent. It also was contended that plaintiff minor, despite         False Claims Act, federal False Claims
There was a factual dispute as to whether the attend-
                                                             not suffering physical injuries in the accident, was in-          Act, other state False Claims Acts
ing physician was notified of the abnormalities on the
                                                             flicted with psychological trauma for being forced to
strip prior to arrival at the hospital.                                                                                        Type of injuries: Defrauding of
                                                             witness the process of her mother’s death, with no one                                                         NAVARRO
   When attending physician arrived, an emergency C-                                                                           Michigan Medicaid program (and other
                                                             beside her for comfort or help.
section immediately ordered. A significant concealed                                                                           state and federal health care programs) by submitting
                                                                Plaintiff asserted insurance policy limits were not
abruption was found. Child had classic presentation of                                                                         payment claims for an anti-epilepsy drug that was
                                                             sufficient compensation for the loss of one life and the
acute profound HIE, with low Apgar scores, acute pro-                                                                          improperly marketed “off-label”
                                                             scarring of another.
found metabolic acidosis, seizures, and classic radi-                                                                          and therefore not covered by Medicaid
                                                                Defendants contended decedent was at fault for failing
ographic presentation of acute profound injury.
                                                             to yield by pulling out onto the roadway from a side street.      Name of case: U.S. ex rel. Mahar, et al. v. Ortho-McNeil
   Plaintiff contended that the residents and nursing
                                                             As well, defendant It’s A Matter of Taste asserted not serv-      Pharmaceutical, Inc.
staff failed to appreciate the signs of placental abrup-
                                                             ing defendant Foust after she became visibly intoxicated.
tion evident on the fetal monitor strips after placement                                                                       Court/Case no./Date: U.S. Federal Court for the District
                                                                The matter settled for $1.586 million.
of the internal leads and failed to so notify the attend-                                                                      of Massachusetts; 03-11445; April 2010
ing. (There was no documentation that they appreciat-        Type of action: Wrongful death, dram shop                         Name of judge: William G. Young
ed the abnormalities on the strip or mother’s com-
plaints of unusual abdominal pain.)                          Type of injuries: Death, infliction of emotional distress         Settlement amount: $1,503,209 (part of a $75.37 million
   It also was asserted that the damage was because of       Name of case: Estate of Agnes Dregely, et al., v. Foust, et al.   total national settlement)
acute and profound hypoxia within the last 30 minutes                                                                                                                          .
                                                                                                                               Attorneys for plaintiff: David L. Haron, Monica P Navarro
prior to delivery. In addition, it was contended, had the    Court/Case no./Date: Oakland County Circuit Court; 08-
signs of abruption been appreciated by the staff in a        095850-NO; Aug. 17, 2010                                          Attorneys for defendant: King & Spalding, LLP
timely fashion, an emergency C-Section would have            Name of judge: Nanci J. Grant                                                                 Largest Settlements continued on page 16
B16 • Michigan Lawyers Weekly                                                     January 10, 2011                                                               Cite 25 Mich.L.W. 240

                                                                The boy was transported to a local hospital. Resusci-        Tried before: Arbitration
LARGEST SETTLEMENTS                                           tative efforts eventually achieved a return of normal si-
                                                                                                                             Name of judge: Michael Warren
Continued from page 15                                        nus rhythm. The boy was eventually transported to a
                                                              tertiary care facility, where he remained in a coma for        Arbitration award: $1.4 million
                                                              several weeks. Although he regained consciousness, he

                                              # 31            was severely brain damaged and suffered near-complete
                                                              quadriplegia, and will require lifelong, 24-hour care.
                                                                Plaintiff’s immunology expert asserted that the last
                                                                                                                             Attorneys for plaintiff: Michael J. Morse, Joel R. Safir
                                                                                                                             Attorney(s) for defendant: Withheld

Man hit by car asserts                                        allergy injection should not have been given in light of
                                                              the fact that the boy had diminished and unstable pul-
                                                              monary function. The expert also contended that an                                                           # 33
driver was on the job                                         anaphylactic reaction is a well-known risk of im-

‘Frolic-and-detour’ argued by
                                                              munotherapy, and allergy shots must only be given to
                                                              patients who have sufficient pulmonary reserve to en-
                                                              dure such a reaction.
                                                                                                                             Flexion causes spinal
defendant at time of the accident                               Shortly into discovery, the case was settled at a sec-
                                                              ond facilitation for $1.4 million.
                                                                                                                             cord ischemia in teen
$1.49 million                                                 Type of action: Medical malpractice                            Standard of care argued by defense
   In a confidential lawsuit, plaintiff motorcyclist
sought compensatory damages from defendant driver
                                                              Type of injuries: Brain damage resulting in near-complete      for tracheal resection procedure
following a collision.
   Plaintiff’s motorcycle struck defendant’s car when the
                                                              Name of case: Confidential                                     $1.375 million
driver failed to yield at an intersection, and suffered       Court/Case no./Date: Confidential; confidential;                  In a confidential lawsuit, plaintiff minor sought dam-
pelvic fractures and a closed-head injury. While the          June 14, 2010                                                  ages from defendant hospital for quadriplegia caused
plaintiff, 54, is able to drive again and has resumed some    Name of judge: Confidential                                    by negligent surgical positioning.
normal activities, he no longer can work as a paramedic.                                                                        Plaintiff was a 16-year-old with lethal cancer of the
   Defendant contended being non-party at fault be-           Settlement amount: $1.4 million                                trachea. He was scheduled for a tracheal resection pro-
cause of sight obstructions at the intersection. It was       Attorney for plaintiff: Robert B. Sickels                      cedure in 2006. Postoperatively, in order to allow heal-
further asserted that defendant was on a “frolic-and-de-                                                                     ing of the circumferential trachea resection and anasto-
tour,” instead of in the course of defendant’s employ-        Attorney(s) for defendant: Withheld                            mosis, the boy’s neck was held in a flexed position while
ment, as defendant had gone house shopping on return-                                                                        medically paralyzed for eight days. At no point postop-
ing from work delivering newspapers.                                                                                         eratively was the boy’s neurological status assessed.
   The trial judge granted plaintiff ’s motions summary
disposition that defendant was negligent, and that de-                                                      # 32                When the paralytic drug was reversed, it was discov-
                                                                                                                             ered that the patient had suffered a spinal cord injury
fendant was in fact in the course of employment at the                                                                       leading to quadriplegia. Plaintiff asserted that this
time of the accident.
   The matter settled for $1.49 million.                      Driver says rear-ending                                        complication, which was unreported in the world’s med-
                                                                                                                             ical literature, occurred because an excessive degree of
                                                                                                                             flexion was used causing spinal cord ischemia.
Type of action: Motorcycle accident
Type of injuries: Pelvic fractures, closed-head injury
                                                              altered his life course                                           Defendants contended that they followed standard
                                                                                                                             protocols for immobilization and the risk was inherent
Name of case: Confidential                                    Defense argues delayed complaints                              to the surgery, and that damages should be limited due
                                                                                                                             to the boy’s cancer.
Court/Case no./Date: Confidential; confidential;              of knee pain, prior back surgery                                  The matter settled for $1.375 million. Damages were
Jan. 16, 2010                                                                                                                limited due to a dramatically decreased life expectancy
Name of judge: Withheld                                       $1.4 million                                                   because of the lethal cancer.
                                                                 In a lawsuit filed in Oakland County Circuit Court,         Type of action: Medical malpractice
Settlement amount: $1.49 million
                                                              plaintiff Bahaa Qasawa sought compensatory damages
Most helpful experts: Gary W. Elliott, neuropsychologist,     from defendants Thomas Lahey and S&G Imported Car              Type of injuries: Quadriplegia caused by negligent surgical
Mishawaka, Ind.; Dr. Alan G. Lewandowski,                     Parts following an auto accident.                              positioning
neuropsychologist, Kalamazoo; Gary J. McDonald, accident         On June 23, 2008, Qasawa, a 41-year-old pharmaceu-          Name of case: Confidential
reconstructionist, Grand Rapids; William D. King,             tical sales representative, was exiting Interstate 75 on
economist, Lansing                                                                                                           Court/Case no./Date: Confidential; confidential;
                                                              the 12 Mile Road ramp in Madison Heights. He was
                                                                                                                             April 13, 2010
Attorneys for plaintiff: James B. Ford, William K. Murphy     stopped for a red light on the service drive when Lahey
                                                              rear-ended him, causing about $2,000 worth of damage           Settlement amount: $1.375 million
Attorney(s) for defendant: Withheld                           to Qasawa’s vehicle.
                                                                                                                             Attorney for plaintiff: Brian J. McKeen
                                                                 Qasawa did not seek medical attention for five days
                                                              following the crash. Eventually, it was discovered that        Attorney(s) for defendant: Withheld

                                              # 32            he suffered from a disc herniation at L5-S1, and a torn
                                                              medial meniscus in both knees. Plaintiff treated exten-

Unstable pulmonary
                                                              sively for his injuries, which included numerous epidur-
                                                              al and caudal block injections, L5-S1 anterior radical
                                                              diskectomy, fusion, and instrumentation with plates
                                                                                                                                                                           # 34
                                                              and screws, and complete synovectomy, meniscal de-
function leads to                                             bridement, chondroplasty and arthoplasty of each knee.
                                                                 Defendants contended that plaintiff could still do his
                                                                                                                             Hospital accused of not
teen’s brain damage
                                                              job — he worked continuously at obtaining his MBA de-
                                                              gree at Walsh College — as he was never disabled from          responding to fetal
                                                              driving. The defense doctors indicated that his knee in-
Boy suffers reaction after allergy                            juries were not related to the accident and that it
                                                              would be “virtually impossible” for him to tear both of
shot was given at wrong time                                  his meniscus from this type of accident.                       Intervention at birth should have been
                                                                 It also was asserted that plaintiff did not complain of
$1.4 million                                                  knee pain for more than three months following the ac-         earlier, assert experts for the plaintiff
                                                              cident. As well, plaintiff also failed to mention in his in-
   In a confidential lawsuit, plaintiff minor and plaintiff
                                                              terrogatories and deposition testimony prior low back
next friend sought compensatory damages from defen-
                                                              injuries (he had multiple back injuries in the past,
                                                                                                                             $1.35 million
dants, an allergy specialist and his professional corpo-                                                                        In a confidential lawsuit filed in Macomb County Cir-
                                                              where he was disabled from employment and was on
ration, after developing severe, global brain damage fol-                                                                    cuit Court, plaintiff next friend of plaintiff minor
                                                              heavy restrictions).
lowing an allergy shot.                                                                                                      sought damages from defendant hospital and defendant
                                                                 Testimony from plaintiff’s treating physicians, as well
   Plaintiff minor, 13, began treatment with the doctor,                                                                     obstetrician for negligent failure to timely and properly
                                                              as his primary care physician who had treated him prior
who specialized in allergy medicine for progressive                                                                          respond to signs of fetal distress during the labor and
                                                              to the accident, rebutted defendants’ arguments regard-
asthma symptoms. In an effort to control the boy’s asth-      ing the etiology of plaintiff’s medical conditions. In addi-   delivery process for the minor child.
ma, immunotherapy allergy shots were ordered, and             tion, plaintiff’s counsel attended every single defense           The mother presented at 40 weeks and three days of
the boy was scheduled to receive weekly injections.           medical evaluation, which was helpful in arguing against       pregnancy, and her cervix was found to be 2 centime-
   After several weeks of therapy, the boy presented to       the adverse opinions of these defense medical examiners.       ters dilated. Membranes were artificially ruptured
the specialist with exacerbated asthma symptoms, and             It also was contended that, through substantial time        when the baby was at minus 4 station; this is extreme-
advised the doctor that he had run out of his prescribed      spent discovering and, ultimately, demonstrating, the          ly dangerous and contraindicated, as it can cause acute
medication. He complained of shortness of breath. A           injuries had a significant impact on plaintiff’s life. Nu-     cord prolapse (pinching off of the umbilical cord when it
pulmonary function study was significantly abnormal.          merous photographs depicting plaintiff engaging in a           leaves the uterus before the fetus).
He was started on a Prednisone taper.                         variety of pre-crash activities were used as evidence of          Three hours later, a fetal heart rate monitor began to
   The next day, the boy presented for his regularly          the alteration of his life course.                             show repetitive deep variable decelerations of the
scheduled immunotherapy allergy injection. The doctor            An arbitration panel issued a $1.4 million award in         baby’s heart rate. As the labor progressed, nursing staff
was not present on site, so the injection was adminis-        plaintiff’s favor.                                             noted dark red vaginal bleeding, followed by decreasing
tered by a nurse who had not been licensed for several                                                                       heart rate variability, another indicator of fetal dis-
years. Almost immediately after the injection was given,      Type of action: Third-party auto negligence                    tress. Despite several hours of decreasing variability,
the boy developed an acute anaphylaxis reaction in the        Type of injuries: Lumbar disc herniation resulting in          the labor nurse charted the pattern as “reassuring.”
form of respiratory distress and loss of consciousness.       anterior diskectomy and fusion, torn meniscus in left and         For hours, the labor was continued with the labor-in-
   The nurse and an unlicensed physician’s assistant          right knees resulting in surgery on each                       ducing drug pitocin, despite continuing late variable
began CPR and administered epinephrine. Upon ar-                                                                             decelerations and bleeding consistent with a placental
rival, EMS technicians intubated and began IV epi-            Name of case: Qasawa v. Lahey, et al.
                                                                                                                             abruption. Delivery was finally achieved vaginally with
nephrine. Cardiac monitoring revealed pulseless elec-         Court/Case no./Date: Oakland County Circuit Court;             forceps.
trical activity only.                                         09-098503-NI; Nov. 10, 2010                                       Plaintiffs’ experts testified that intervention should
Cite 25 Mich.L.W. 241                                                                  January 10, 2011                                                      Michigan Lawyers Weekly • B17

have occurred much earlier. Moreover, it was contend-                                                                             bleeding; right ankle joint dislocation with gross insta-
ed, the failure of the obstetrician to respond to the
worsening uterine environment was so significant that
plaintiffs’ nursing expert testified that the nurses in
                                                                                                                # 36              bility; right open pelvic fractures with penetrating lac-
                                                                                                                                  erations; left hip and pelvic fractures; right rib frac-
                                                                                                                                  tures; and a left below-the-know amputation one year
the case were negligent for failing to invoke the “chain                                                                          following the collision because of infection.
of command” and seek intervention from the physi-
cian’s supervisors. The baby was born floppy, with flac-
                                                                  Woman: Herniated                                                   The intersection consisted of a roadway with a stop
                                                                                                                                  sign and a through roadway that had no traffic devices.
cid tone, poor color, requiring oxygen.
   Because of these injuries, it was asserted, the child
suffered global neurological injury. He had a decreased
                                                                  discs are result of crash                                       The septic tank truck was required to stop at the stop
                                                                                                                                  sign before entering the intersection, and the defendant
                                                                                                                                  driver was on the through roadway. The truck driver
full scale IQ, and significant learning disabilities.             Degenerative changes to spine                                   was attempting to pull straight across the T-section
   Defendants contended that the infant’s condition at
birth was incompatible with an acute intrapartum as-
                                                                  are disputed as pre-existing                                    into the store’s parking lot at the time of the crash.
                                                                                                                                     Both drivers argued that the other was at fault for
phyxia, specifically that the child went home with the                                                                            the collision. The truck driver said he did not see the
mother two days after birth and the Apgar score and               $1.15 million                                                   defendant’s car approaching because it was going 70
blood gas did not suggest any severe level of hypoxia.              In a third-party auto-negligence case filed in Oak-           mph in the posted 55 mph zone, and contended that
   It also was asserted that the cause of the child’s one-        land County Circuit Court, and handled through arbi-            because the car was speeding, that driver lost the
sided deficits was a stroke in utero, remote from term.           tration, plaintiff Lisa Dunne sought damages for an au-         right of way. The defendant driver asserted the truck
Defendants neuroradiology experts opined that the                 tomobile accident in which defendant Jennifer Franz             never stopping at the stop sign, but rather rolled
child’s injury occurred weeks before delivery.                    failed to stop or slow her vehicle down and rear-ended          through it and into the intersection before heading for
   Plaintiffs contended that there is medical literature          plaintiff’s vehicle, which was stopped at a red-light.          the parking lot.
that indicates that a leading cause of perinatal stroke             Plaintiff contended that, as a result of the Aug. 8,             Plaintiff’s evidence asserted both drivers at fault for
is intrapartum hypoxic ischemic encephalopathy. As                2008, accident, the 42-year-old sustained herniated             the collision and proximate cause for the injuries. The
well, neuroimaging showed global changes rather than              discs that required surgery at lumbar and cervical ar-          accident reconstructionist was able to demonstrate the
a single infarct of one arterial distribution.                    eas of the spine.                                               speeds of both vehicles and each driver’s sight and stop-
   The matter settled for $1.35 million.                            In July 2009, Dunne underwent a complete bilateral            ping distances, and that each driver had ample oppor-
Type of action: Medical malpractice, birth trauma                 laminectomy for decompression at L4 and L5; a com-              tunity to perceive and react to the other driver’s errors.
                                                                  plete radical discectomy at L5-S1; and an interbody fu-            The matter was settled for policy limits of all avail-
Type of injuries: Mild one-sided deficits of fine and gross
                                                                  sion at L5-S1 and at L3-4. On Feb. 4, 2010, Dunne un-           able insurance coverage, totaling $1.1 million.
motor skills
                                                                  derwent a complete radical anterior cervical discectomy
                                                                                                                                  Type of action: Auto negligence
Name of case: Confidential                                        at three levels: C4-5, C5-6 and C6-7.
                                                                    Defendant admitted negligence, but denied that the            Type of injuries: Fibula-tibia fractures, perforated bowel,
Court/Case no./Date: Macomb County Circuit Court;
                                                                  accident caused or aggravated Dunne’s injuries. Defen-          hip, rib and pelvic fractures, left below-the-knee
confidential; June 15, 2010
                                                                  dant contended that the injuries were pre-existing, and         amputation
Name of judge: Withheld                                           that plaintiff’s medical records showed evidence of de-
                                                                                                                                  Name of case: Confidential
Settlement amount: $1.35 million                                  generative changes prior to the accident.
                                                                    Plaintiff was able to establish that, while there may         Court/Case no./Date: Confidential; confidential;
Attorney for plaintiff: Brian J. McKeen                           have been degenerative changes in her spine, virtually          April 7, 2010
Attorney(s) for defendant: Withheld                               everyone has some level of degenerative changes, and            Name of judge: Withheld
                                                                  that plaintiff was asymptomatic prior to the accident.
                                                                  Plaintiff also was able to show that, prior to the acci-        Settlement amount: $1.1 million

                                               # 35               dent, she lived an active lifestyle which included bik-
                                                                  ing, walking and gardening, and after the accident was
                                                                  unable to participate in any of these activities.
                                                                                                                                  Insurance carriers: Auto-Owners, Progressive
                                                                                                                                  Attorney for plaintiff: Bonnie Y. Sawusch
                                                                    The arbitration panel awarded $1.15 million to the            Attorney(s) for defendant: Withheld
SUV is sandwiched                                                 plaintiff.
                                                                  Type of action: Third-party auto negligence
between two trucks                                                Type of injuries: Herniated discs                                                                                # 38
Defendant’s log records contended                                 Name of case: Dunne v. Franz

as falsified, pot found in his system                             Court/Case no./Date: Oakland County Circuit Court;
                                                                  09-098991-NI; July 22, 2010
                                                                                                                                  Negligence, injury
$1.25 million                                                     Tried before: Arbitration
                                                                  Neutral arbitrator: James J. Rashid
                                                                                                                                  causation are contested
   In a confidential lawsuit, plaintiffs husband and wife
sought compensatory damages from defendants truck                 Demand: $1.8 million                                            Spine damage, herniation argued as
driver and trucking company following an auto accident.
   Plaintiffs, who were in their six-                             Highest offer: $500,000                                         not being tied to auto accident
ties, were driving in their SUV.                                  Arbitration award: $1.15 million
When they were stopped in traffic
                                                                  Most helpful experts: Dr. Lawrence Rapp, neurosurgery,
behind a semi-truck, a truck driven                                                                                                  In a confidential lawsuit filed in Wayne County Cir-
by defendant truck driver rear-ended                              Clarkston; Dr. Nadine Jennings, pain management and
                                                                                                                                  cuit Court, the plaintiff sought damages for third-party
them and did not brake, sandwiching                               rehabilitative medicine, Bloomfield Hills
                                                                                                                                  automobile negligence, underinsured motorist benefits,
the SUV between the two trucks.                                   Insurance carrier: Nationwide                                   and outstanding No-Fault PIP benefits.
Both plaintiffs had aggravations of                                                                                                  On July 25, 2007, the 36-year-old plaintiff was at-
                                                                  Attorney for plaintiff: Scott P Batey
pre-existing lumbar, cervical issues                                                                                              tempting to turn left onto Canton Center Road in Can-
and mild traumatic brain injuries.                                Plaintiff arbitrator: Jules B. Olsman                           ton. While he was turning, another driver, who was at-
   Defendants contended plaintiffs’ in-        FRASER                                                                             tempting to proceed straight through the light, struck
                                                                  Attorney for defendant: Leonard A. Henk
juries to the plaintiffs were pre-exist-                                                                                          his vehicle.
ing, and the plaintiffs had been tak-                             Defendant arbitrator: Thomas J. Azoni                              Plaintiff reported to the emergency room later that
ing medications for the injuries prior                                                                                            night with complaints of lower back pain. An initial
                                                                  Key to winning: Plaintiff’s counsel building a relationship
to the collision. It was further assert-                                                                                          MRI of his lumbar spine was read by the neuroradiolo-
                                                                  with treating physicians, allowing him to know and
ed that the ages of the plaintiffs and                                                                                            gist as L4-5 lumbar disc degeneration.
                                                                  understand what they would be comfortable with in
their life expectancies did not war-                                                                                                 In November 2007, he fell down a flight of stairs as a
                                                                  testifying prior to their testimony, and allowing him to take
rant substantial damages. Also con-                                                                                               result of a shooting pain from his back into his leg. He
                                                                  full advantage of their testimony
tended was that the claimed econom-
                                                                                                                                  injured his elbow in that fall, which required an ulnar
ic damages (i.e., excess replacement
                                                                                                                                  nerve release surgery. A subsequent MRI, after the fall,
services) were speculative.
   Plaintiffs emphasized MCL
600.6311, which provides that there is no reduction to
                                                                                                                # 37              revealed an L4-5 disc herniation. Plaintiff underwent a
                                                                                                                                  surgery at L4-5 to remove part of the herniated disc.
                                                                                                                                     Defendant contended that plaintiff had a degenerat-
present value for both economic and non-economic
                                                                                                                                  ed spine before the accident and he suffered the hernia-
damages when the plaintiff is older than 60 at the time
of judgment. It further was contended that defendant              Two drivers at odds over                                        tion in the November 2007 fall, and not the car acci-
                                                                                                                                  dent. It was further asserted that he fell because of his
truck driver had falsified log records and had marijua-
na in his system.
   After two facilitations, the matter settled for $1.25
                                                                  who caused accident                                             unstable knees and because he had a history of falling
                                                                                                                                  and suffering injuries on numerous occasions before the
million.                                                          Reconstructionist asserts both had                                 It also was noted that plaintiff had a history of lower
Type of action: Vehicular negligence
                                                                  opportunity to react to event                                   back pain radiating into his leg dating to 2003, as he
Type of injuries: Lumbar and cervical aggravation, arthro-                                                                        weighed 350 pounds and had seven prior knee surgeries.
scopic shoulder surgery                                                                                                              Plaintiff presented detailed depositions of Hastings
                                                                  $1.1 million                                                    Mutual’s PIP adjusters and underinsured motorist ad-
Name of case: Confidential                                           In a confidential auto negligence lawsuit, plaintiff         juster to obtain several admissions about the facts in
Court/Case no./Date: Confidential; confidential; Feb. 25,         driver sought compensatory damages from defendant               the case. After deposition, Hastings’ PIP adjuster ad-
2010                                                              driver following an auto accident.                              mitted that plaintiff’s back injury was related to the
Tried before: Facilitation                                           At a store, plaintiff, 23, was exiting the passenger         crash, all treatment should be paid for, and if it was not
                                                                  side of a van in which he was riding when he was                paid for, then Hastings would be acting unreasonably.
Name of arbitrator: Daniel P Makarski                             struck by a car. The striking car had just been involved           The case settled at mediation for $1,003,500, broken
Settlement amount: $1.25 million                                  in a collision with a septic tank truck within a T-section      down as $100,000 in third-party negligence from Auto-
                                                                  adjacent to the store’s parking lot.                            Owners; and $775,000 underinsurance benefits and
Attorneys for plaintiff: Stuart A. Fraser, Edward E. Souweidane
                                                                     Plaintiff’s injuries included grade III open left fibula-    $128,500 PIP benefits from Hastings Mutual.
Attorney(s) for defendant: Withheld                               tibia fractures; perforated bowel and intra-abdominal                                       Largest Settlements continued on page 19
B18 • Michigan Lawyers Weekly     January 10, 2011                                    Cite 25 Mich.L.W. 242

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Cite 25 Mich.L.W. 243                                                           January 10, 2011                                                     Michigan Lawyers Weekly • B19

                                                                                                                          ousted him and terminated his wages
LARGEST SETTLEMENTS                                                                                      # 39             and benefits.
                                                                                                                             Wesley and Johnston contended
Continued from page 17                                                                                                    there was not any oral agreement
                                                                                                                          for lifetime employment, and de-
Type of action: Third-party automobile
negligence, underinsured motorist
benefits, outstanding No-Fault PIP
                                                            3rd co-owner says other                                       nied that their actions met the ele-
                                                                                                                          ments of shareholder oppression.
                                                                                                                          It was further contended that the
Type of injuries: L4-5 herniated disc,
                                                            two breached contract                                         defendants has a right to termi-
                                                                                                                          nate plaintiff as an employee.
                                                                                                                             The matter settled for $1 million.         MANTESE
left elbow ulnar neuropathy                                 Ousting shareholder was not                                   Type of action: Breach of contract,
Name of case: Confidential
                                                            oppression, defense claims                                    shareholder oppression
Court/Case no./Date: Wayne County                                                                                         Type of injuries: Loss of wages, loss
Circuit Court; confidential; March 9,           MORSE
2010                                                        $1 million                                                    of stock value
                                                              In a lawsuit filed on Oakland County Circuit Court,         Name of case: Najarian v. Wesley, et al.
Tried before: ADR                                           plaintiff George Najarian asserted that defendants
                                                            Michael Wesley and Michael Johnston committed                 Court/Case no./Date: Oakland
Name of judge: Gershwin A. Drain                                                                                          County Circuit Court; C 09-104764-
                                                            breach of oral agreement and minority oppression, and
Settlement amount: $1,003,500                               was entitled to damages.                                      CK; April 2, 2010
                                                              Najarian was a one-third owner and co-employee of Di-       Name of judge: John J. McDonald
Insurance carriers: Auto-Owners,
                                                            abloSport, Inc., a company that made automotive tuning
Hastings Mutual                                                                                                           Settlement amount: $1 million
                                                            products. He alleged that he had a hand-shake agreement
Attorneys for plaintiff: Michael J.                         with Wesley and Johnston, the other two owners, pur-          Attorneys for plaintiff: Gerard V. Mantese, Ian M.
Morse, Donald J. Cummings                    CUMMINGS       suant to which all three would have lifetime employment.      Williamson
                                                            After several years of the three owners working at the
Attorney(s) for defendant: Withheld                         company, Najarian asserted that Wesley and Johnston           Attorney(s) for defendant: Withheld

                                                CLASS ACTIONS
                                                            Name of case: Epstein, et al. v. Heartland Industrial         arose, in part, from defendant’s acceptance of municipal

                                                 #1         Partners, L.P., et al.
                                                            Court/Case no./Date: U.S. District Court, Eastern District
                                                                                                                          sludge into the landfill. Because of its moisture content,
                                                                                                                          municipal sludge creates more landfill gas than is
                                                                                                                          created by typical household refuse. As the landfill was
                                                            of Michigan; 2:06-CV-13555; June 10, 2010
                                                                                                                          not originally designed to accept such waste, the excess
Supplier management                                         Name of judge: Gerald E. Rosen                                gasses were released into the surrounding community,
                                                                                                                          causing numerous odor complaints.
                                                            Settlement amount: $12,262,500
is accused of fraud                                         Attorneys for plaintiffs: E. Powell Miller, Marc L. Newman,
                                                                                                                            Plaintiff ’s expert Dr. Henry S. Cole of Maryland-
                                                                                                                          based environmental consulting firm Henry S. Cole &
                                                            Thomas H. Burt                                                Associates issued a report that indicated the nuisance
Class action contends improper                              Attorneys for defendants: Fred K. Herrmann, Thomas G.
                                                                                                                          odors could be abated via installation of an expanded
                                                                                                                          landfill gas collection system.
accounting led to company’s collapse                        McNeill, Patrick M. McCarthy
                                                                                                                            The defendant agreed to a $3,325,000 settlement, of
                                                                                                                          which $2.5 million will be earmarked to improve the
$12,262,500                                                                                                               landfill gas collection system, while the $825,000 will
                                                                                                                          be for monetary damages.
  In a class-action lawsuit filed in U.S. District Court
for the Eastern District of Michigan, plaintiff Craig D.
Epstein and approved class mem-
                                                                                                              #2          Type of action: Class action
                                                                                                                          Type of injuries: Damages arising from emission of
bers sought damages from defen-
dants Heartland Industrial Part-
ners, L.P.; Heartland Industrial
                                                            Landfill’s acceptance of                                      noxious odors and other airborne contaminants into
                                                                                                                          community surrounding landfill
Associates, L.L.C.; David A. Stock-                                                                                       Name of case: Waldron, et al., v. Republic Services of
man; J. Michael Stepp; and Bryce
M. Koth, asserting loss of securities
                                                            sludge creates nuisance                                       Michigan I, LLC
                                                                                                                          Court/Case no./Date:
values because of fraud involving                           Facility not properly equipped,                               Wayne County Circuit Court;
Collins & Aikman Corp.
  Plaintiffs contended that Heart-                          created noxious odor in area                                  06-615173-NZ; Jan. 8, 2010
land Industrial Partners overstat-            MILLER                                                                      Name of judge: Wendy M. Baxter
ed the value of Collins & Aikman
— a 24,000-employee Tier Two au-
                                                            $3,325 million                                                Settlement amount: $3,325 million
                                                              In a class-action lawsuit filed in Wayne County Cir-        ($825,000 monetary damages, $2.5
tomotive supplier — via a series of                                                                                       million for capital improvements)
                                                            cuit Court, class members asserted that defendant Re-
accounting schemes involving re-
lated party transactions and false                          public Services of Michigan I, LLC was negligent in           Most helpful expert:                           LIDDLE
documentation.                                              allowing the emission of noxious odors and other air-         Dr. Henry S. Cole, Upper Marlboro, Md.
  As well, it was asserted, Collins                         borne contaminants into the New Boston community
                                                                                                                          Attorney for plaintiff: Steven D. Liddle
& Aikman engaged in deliberate,                             that surrounds the Carleton Farms Landfill.
premature or improper accounting                              Plaintiffs claimed that the landfill’s nuisance damages     Attorney(s) for defendant: Withheld
for vendor rebates; mischaracteri-           NEWMAN
zation of rebates on capital equip-
ment; use of round-trip transactions that should have
had no net effect; and pre-billing of receivables under a
                                                                                                                                                         Here’s what you
factoring arrangement to inflate the company’s borrow-                                                                                                   missed today:
ing base and create the appearance of liquidity. Such
actions, it was added, made it appear the business was                                                                                                   • Late-breaking legal
operating successfully.
  Upon the market learning of the improper account-                                                                                                        news
ing and the company’s true financial situation, its stock                                                                                                • Today’s top opinions
and publicly traded fixed-income securities fell precipi-
tously. On May 17, 2005, a month after the initial com-                                                                                                  • Today’s poll question
plaint in this action was filed, Collins & Aikman filed
for bankruptcy protection, then liquidated, and no
                                                                                                                                                         • The top job of the day
longer exists as an operating business.
  The lawsuit then named Heartland Industrial Part-
ners and Heartland Industrial Associates (private equi-                                                                                                  Sign up today!
ty firms invested in the company); Stockman (Collins &
Aikman’s chief executive officer); and Stepp and Koth                                                                                                    Start receiving
(chief financial officers).
                                                                                                                                                         your FREE Lawyers
  Defendants contended no fraud was committed, and
further explained that other auto suppliers and similar           Not signed up for Michigan                                                             Weekly e-mail alerts
companies in the auto industry had been suffering fi-                                                                                                    so you don’t miss
nancial losses.
  The matter settled with the defendants agreeing to
                                                                Lawyers Weekly’s e-mail alerts?                                                          tomorrow’s important
provide recovery of $12,262,500 to class members.                                                                                                        legal news.
Type of action: Securities fraud class action                                                                                                            Visit our Web site,
Type of injuries: Loss in value of securities because of
false and misleading statements about earnings
20 • Michigan Lawyers Weekly                                                              January 10, 2011                                                                  Cite 25 Mich.L.W. 244

Top 10 national verdicts list rises modestly
   The size of the top 10 national jury verdicts increased
again in 2010.                                                       ‘Estate of Cole v. Ford Motor Co.,’                               ‘Townsend v. R.J. Reynolds,’
   The average increased less than the prior year, however,          Mississippi, $132.5 million                                       Florida, $90.8 million
rising from nearly $145 million to just under $157 million.             The third time was a charm for small-firm lawyers who            Specifics of this case were not available at presstime, but
(The average for 2009 increased nearly $33 million from the          won $132.5 million against Ford for a rollover accident that      will be published in an upcoming edition of Michigan
prior year.)                                                         killed 22-year-old New York Mets prospect Brian Cole.             Lawyers Weekly.
   The top award was significantly higher in 2010 — $505                In the nine years since the accident, the case has been
million versus $370 million. But there then was a sharp              tried three times, with the first two trials ending in mistri-
drop: the No. 2 award was $209 million, and No. 3 award              als due to juror misconduct and a hung jury.                      ‘Pridgen v. Avco Corp.,’
was $152 million. In contrast, 2009 saw three awards in the
$300 million range.
                                                                        Tab Turner, lead counsel for the plaintiffs, said that the     Pennsylvania, $89 million
                                                                     first trial — which he did not try — was based on a legal           A Pennsylvania jury handed down an $89 million verdict
                                                                     theory claiming a defective suspension part. When he was          against the manufacturer of an airplane carburetor after a
‘Chanin v. Teva Pharmaceuticals,’                                    brought in to retry the case in 2004, he switched the theory      crash killed four people and severely injured a fifth.
                                                                     of the case to allege that the 2001 Explorer driven by Cole         The verdict in favor of the plaintiffs includes a $64 million
Nevada, $505.1 million                                               was defective because it rolled over too easily when he           punitive award after the jury           found the defendant’s
   Arguing that oversized vials of                                       swerved to avoid another car.                                 conduct was malicious,                    wanton, willful or op-
a drug were “weapons of mass in-                                                                                                                                                   pressive.
fection” that led to an outbreak                                                                                                                                                       The plaintiffs
of Hepatitis C at outpatient                                                                                                                                                          alleged that a
surgical centers, Las Vegas                                                                                                                                                         subsidiary of de-
plaintiffs’ attorney Robert
Eglet convinced a jury that
the manufacturer and its
                                            Top 10 criteria                                                                                                                       fendant Avco Corp.,
                                                                                                                                                                                 Lycoming Engines,
                                                                                                                                                                                 manufactured a de-
distributor should be pun-            The top 10 national jury verdicts must be                                                                                                  fective carburetor by
ished with $500 million in           to an individual plaintiff, defined as a                                                                                                   using inexpensive met-
punitive damages.                                                                                                                                                           al parts that caused the
                                    single person, family or small group of
   The verdict was the                                                                                                                                                   carburetor to flood. They fur-
opening salvo for more               individuals injured in a single incident who
                                                                                                                                                                       ther alleged that the defendant
than 100 pending cases                had their claims tried in one case before                                                                                        knew about the problems with
against Teva Pharmaceu-                                                                                                                                                its carburetors, but failed to
                                       the same jury. Cases must have been
ticals, the manufacturer                                                                                                                                               disclose them to the Federal
of the anesthesia propofol,             defended; default verdicts and suits
                                                                                                                                                                       Aviation Administration.
and distributor Baxter                       against incarcerated individuals are not                                                                                     The defense claimed that
Healthcare.                                       included. Business-against-business                                                                                 the crash was caused by pilot
   The plaintiff’s case hinged on                                                                                                                                    error, said James Robinson, a
the theory that the defendants                          suits, class actions or consolidated
                                                                                                                                                                   partner in the Philadelphia office
knew that the large vials created a                                      cases are not included.                                                                  of Cozen O’Connor, who represent-
risk that doctors would reuse them in                                                                                                                           ed Avco.
shorter surgeries requiring
smaller doses, thus spreading                                                                                                                                Type of case: Design defect,
infections between patients.                                                                                                                                   negligence
   The source of the lawsuit
was an outbreak of Hepati-                                                                                                                                       Status: Post-trial motions have
tis C at several colonoscopy                                                                                                                                      been filed.
clinics in Las Vegas. Two
subsequent outbreaks in                                                                                     Ford’s claim that
Miami and Washington,                                                                                   Cole was speeding was
D.C., also occurred, ac-                                                                               contradicted by the com-
cording to Eglet.                                                                                      pany’s own accident re-
   Baxter spokeswoman Kellie Hotz said that the company           construction expert; similarly, the company’s claim that Cole
will argue on appeal that the jury should have heard about        wasn’t wearing a seatbelt was belied by the fact that the seat-      ‘Petrie v. Hanover Compression,’
unsafe practices among medical professionals who reuse sy-        belt remained buckled after Cole was ejected from the SUV.
ringes and vials.
                                                                                                                                       Texas, $82.5 million
                                                                      Type of case: Design defect                                         A Texas jury handed down an $82.5 million verdict
 Type of case: Product liability                                                                                                       against two natural gas plant companies after a worker in
                                                                      Status: Settled for an undisclosed amount before the             a rebuilt and refurbished plant was killed in an explosion.
 Status: On appeal.                                                   punitive phase.                                                     Joshua Wade Petrie, a plant operator at a natural gas pro-
                                                                                                                                       cessing plant in Cleburne, Texas, Petrie attempted to start
‘Evans v. AW Chesterton,’                                            ‘Pacheco v. Chavira,’                                             a hot oil heater on a plant processor. After several attempts
                                                                                                                                       by Petrie, the heater exploded. Petrie suffered trauma to his
California, $208.8 million                                           Texas, $124.5 million                                             head and chest, and died of his injuries in a hospital the
   A Los Angeles jury awarded $8.8 million in compensatory              A Texas jury found a bus company and its driver liable for     next day.
damages and $200 million in punitive damages to Rhoda                $124.5 million — all in actual damages — to seven passen-            His widow, children and father brought a negligence ac-
Evans for esothelioma caused by asbestos contamination               gers injured or killed while riding in a van in a state where     tion against Quicksilver Resources, the owner of the gas
that her husband, Bobby, brought home from his job via his           it was not licensed to operate.                                   plant, and Hanover Compression, which sold the gas pro-
clothes.                                                                Much of the four-day trial focused on whether the driver,      cessing plant to Quicksilver.
   The award was split 70/30 between the pipe maker, Cer-            who the passengers testified was eating and speeding on              The complaint asserted that Hanover, which owned the
tainTeed, and Bobby’s employer, Los Angeles’ water and               snowy roads, was an employee or agent of the bus company.         plant when it was located in Oklahoma, had the responsi-
power department, but held CertainTeed alone responsible                The passengers were all Mexican citizens, some visiting        bility of relocating the plant to Texas, refurbishing and
for punitive damages.                                                family in the U.S., others returning to their jobs or families    restoring the plant and its equipment, then reconstructing
   William Levin, the winning attorney, said the most in-            after vacationing South of the Border. They were headed to        the plant and reinstalling the equipment at the Texas site
flammatory piece of evidence was a file kept by the director         Nebraska, and all were in the U.S. legally.                       in accordance with specific safety standards and plan spec-
of safety that showed CertainTeed had known since the                   Two threshold legal battles were establishing whether          ifications.
mid-1960s, before Bobby Evans worked with their pipes,               the van was a motor carrier under federal regulations and
that they contained asbestos; that asbestos caused mesothe-          whether the driver was an employee or agent of Los                 Type of case: Negligence
lioma even in small amounts; and that wives had developed            Paisanos, the bus company.                                         Status: Settled.
cancer from exposure to “take-home asbestos” on their hus-              Los Paisanos was not licensed to operate in Nebraska,
bands’ clothes.                                                      and according to the plaintiffs, the defense presented a
                                                                     complicated story of how the van came to be transporting          ‘Webb v. R.J. Reynolds,’
 Type of case: Product liability                                     passengers into that state.                                       Florida, $80 million
 Status: On appeal.                                                   Type of case: Negligence                                            After eight straight defense verdicts in the individual to-
                                                                                                                                       bacco litigation in Florida, the daughter of a smoker who
                                                                      Status: Motion for new trial planned.                            died of lung cancer won a resounding $80 million verdict, in-
‘Evans v. Lorillard,’
                                                                                                                                       cluding $72 million in punitive damages.
Massachusetts, $152 million                                          ‘Evans v. Baker & McKenzie,’                                         Dianne Webb brought suit against R.J. Reynolds Tobacco
   In a landmark victory, a Massachusetts jury awarded                                                                                 Co. as one of the Engle progeny cases, which involve indi-
$152 million to the son of a deceased woman who received             Mississippi, $103 million                                         vidual trials to determine if a plaintiff — in this case, her
free cigarettes as a child from representatives of tobacco              A Mississippi jury hit the world’s largest law firm with a     decedent father, James Horner — was addicted to ciga-
company Lorillard.                                                   $103 million verdict in a suit alleging legal malpractice,        rettes and whether that addiction caused his or her injury.
   The verdict, which includes $81 million in punitive dam-          breach of fiduciary duties, conspiracy and interfering with          Plaintiff ’s attorney James W. Gustafson said Horner’s
ages, was the largest verdict in the state in 2010, and the          business relationships.                                           early start at smoking contributed to the jury’s high appor-
first ever victory for an individual plaintiff over Lorillard,          A Texas businessman won a suit against Baker & McKen-          tionment of fault to the defendant. Unlike some of the oth-
the third-largest cigarette manufacturer in the U.S.                 zie and senior counsel in its Dallas office, claiming that        er Engle cases with younger plaintiffs who started smoking
   “The facts of this case are shocking,” asserted plaintiff’s at-   while representing him in several oil drilling deals from         later, in the 1950s, Gustafson said Horner began smoking
torney Michael D. Weisman. Weisman represented Willie                2000-06, they actually worked with his business partner be-       when tobacco companies still openly marketed to children
Evans, the son of Marie Evans, who died of lung cancer in 2002.      hind his back, treating his company like a personal “piggy        and no one yet questioned the dangers of smoking.
   Mark Gottlieb, director of the Tobacco Products Liability         bank,” forcing litigation aimed at “bringing him to his
Project at Northeastern University School of Law, said this          knees” and ultimately driving his business into the ground.        Type of case: Wrongful death
verdict is currently the largest in an individual smoking and           Baker & McKenzie argued at trial that the firm only rep-        Status: Defendants appealing amount of compensatory
health case, because larger verdicts in California and Flori-        resented the plaintiff on a limited matter, but according to       and punitive damages, as well as numerous legal issues
da were later reduced. He suggested that that more cases             Laurence E. Best, who represented cross-plaintiffs in the suit,
                                                                                                                                        from trial.
involving children and free samples will almost certainly be         the evidence of a long-term relationship was “overwhelming.”
filed as a result.
                                                                      Type of case: Legal malpractice
 Type of case: Wrongful death                                                                                                          This report was compiled by Lawyers USA,
                                                                      Status: Post-trial motions pending; judgment stayed              which, like Michigan Lawyers Weekly, is a Dolan
 Status: No change.                                                   pending appeal.                                                  Company newspaper.

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