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2010 Million-Dollar MICHIGAN LAWYERS WEEKLY Verdicts & Settlements LARGEST VERDICTS Improper corporate sale,sexual harassment,head-on snow crash among top verdicts. page B2 LARGEST SETTLEMENTS Construction project’s non-completion, sales commission disputes on this year’s list. page B7 CLASS ACTIONS Accounting earnings fraud, noxious odor from sludge in landfill reported. page B19 NATIONAL VERDICTS Drug manufacturer slapped with $500 million in punitive damages. page B20 ABOUT THIS SECTION This section includes verdicts and settlements of $1 mil- lion or more obtained in 2010 that were reported to Michigan Lawyers Weekly and verified before Dec. 23, 2010. 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 firstname.lastname@example.org. 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 email@example.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 $7,978,530. more than 20 minutes in a portable toilet by her male co-workers. • On a cold, windy December day, being told to climb transmission towers and tighten bolts without the 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 shareholders. In March 2007, Ward attempted to collect the abusive environment Type of injuries: Psychological and emotional distress, humiliation $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- STURDIVANT tion was not legally approved, the Court found that the ry references to plaintiff as a female. Status: On appeal. $3.1M $3.8M 5th $3.7M $6.1M $4.08M $3.4M $6.5M Value of the top 5 4th $4.5M $7.9M $4.54M verdicts in Michigan $7M 3rd $6.2M $5.65M 2006–2010 $15M $6.29M 2006 $14.1M 2007 $7.6M 2008 2nd $9.1M $47.68M 2009 $7.9M 2010 $15.8M $35M 1st $24M $300M $7.97M $0M $25M $50M $75M $100M $125M $150M $175M $200M $225M $250M $275M $300M 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- rendered. 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 #6 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. Michigan 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 LARGEST VERDICTS 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 accident 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 $1,500,002. 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; $1,419,149 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 WEIDENFELLER 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- appeal. 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 applications. 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 #4 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 commissions. 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 #7 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 gestation. 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 2010 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. #9 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 accident 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). SIMPSON 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 capacity 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 encephalopathy 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; MCKEEN 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! www.milawyersweekly.com B12 • Michigan Lawyers Weekly January 10, 2011 Cite 25 Mich.L.W. 236 promised tax benefits. LARGEST SETTLEMENTS 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 rough-framing. 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 closed. 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 FRASER 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, 2010 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 arbitration. 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 $6.45/week 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 $1,503,209 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 quadriplegia 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 stress 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, $1,003,500 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 SOUWEIDANE 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 accident. 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 MICHIGAN LAWYERS WEEKLY Reprints The convenient, affordable way to add depth and style to your marketing program: • Enhance marketing packages and press kits • Provide practice specialty literature • Develop direct mail and e-mail campaigns • Present information at conferences and seminars • Provide instant access to articles on your website Reprints Paper reprints of articles, book reviews, news items and ver- dicts & settlements, are produced on glossy stock, in black & white or color. PDF File Michigan Lawyers Weekly offers this versatile option for clients seeking a “one-size-fits-all” product. It can be posted on your website, sent out in e-mails or used to print your own hardcopies. Electronic Reprints We offer specially formatted web pages to link to from your website. Publishing your reprint online allows you to point immediate prospects or clients directly to your most notewor- thy accomplishments. Custom Plaques Custom-designed plaques commemorate your achievements with a beautiful, sleek and sophisticated display in your office, reception area or home. Photos Color images that have been shot by, and appeared in, Michi- gan Lawyers Weekly are saved in high-resolution to CD-ROM. They can be placed on your Web site, or taken to a photo processor to be printed in any size from 4" x 6" to 24" x 36". For more information on pricing or how to order, please contact Charlene Boccaccio at (248) 865-3112 or firstname.lastname@example.org 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 benefits 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 WILLIAMSON 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, www.milawyersweekly.com H97449 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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