MTLA’s 62nd Annual Convention “Too Legit To Quit”€¦ · Page 4 MTLA Journal Summer 2007 Jonathan Abrahams, Farmington Hills Michael Behm, Flint & Tom Waun, Grand Blanc Mark

MTLA Journal Summer 2007 Page 1

MTLA JournalSummer 2007Vol. 41, No. 1

MTLA’s 62nd Annual Convention“Too Legit To Quit”May 4 & 5, 2007Hyatt Regency Dearborn

Governor Jennifer Granholm &MTLA President Jesse Reiter

Defending the Right toTrial by the People -

See page 19

More on the Convention -See pages 4 - 6

MTLA Officers and Several Past Presidents

MTLA President-Elect Robert Raitt &MTLA President Jesse Reiter

Judge Don Shelton &U.S. Senator Debbie Stabenow

U.S. Senator Carl Levin &Vice-President Judy Susskind

Page 2 MTLA Journal Summer 2007

In This Issue . . .

MTLA JournalOfficersPresident

Jesse M. Reiter

President ElectRobert M. Raitt

Vice PresidentJudith A. Susskind

SecretaryRichard L. Warsh

TreasurerBarry J. Gates

Executive DirectorJane R. Bailey

Mark A. Burton - Legislative CounselSusan C. Smith - Development Director

C. Jesse Green - Director of Communications

Past PresidentsBarry J. Goodman

Carl Gussin (d)Clifford H. HartThomas H. Hay

Alan C. HelmkampIrving Kroll (d)Saul M. LeachJames F. Logan

Benjamin Marcus (d)James A. Markle (d)

D. Charles Marston (d)George M. Maurer, Jr.

Carol A. McNeilageSheldon L. Miller

Eugene D. MossnerHon. William B. Murphy

Jules B. OlsmanHarry M. Philo

Brian McKeen

All inquiries should be made to Newsletter Coordinator Michelle Lefke,504 S. Creyts Rd, Ste. B, Lansing, MI 48917-8230. (517) 321-3073.Desktop publishing by Michelle Lefke. Copyright 2007 by MTLA.

Publication of advertising does not imply endorsement of products/services.

Newsletter Committee Chairperson: Susan G. Wright

Gary A. KozmaShalina KumarBrian KutinskyDani K. Liblang

Isaiah LipseyCary S. McGeheeBrian A. McKennaWayne J. MillerBernard Mindell

David S. MittlemanMichael J. MorseWolfgang Mueller

Joey S. NiskarDaniel P. O’NeilDavid R. Parker

Eugene H. PetruskaThomas H. Randolph III

Frank K. Rhodes IIIDaniel G. RomanoHeidi Salter-FerrisGlenn A. Saltsman

Melvyn D. SapersteinAnne M. SchoepfleDouglas B. Shapiro

Lynn H. ShecterStuart A. Sklar

Timothy P. SmithLee B. SteinbergPaul Stevenson

Gerald E. ThurswellLinda D. Turek

Matthew L. TurnerJason A. WaechterRandy J. Wallace

Kenneth T. WatkinsTom Waun

Cyril V. WeinerRonald K. Weiner

Lisa A. WeltonJ.Dallas WinegardenAlan S. WittenbergNora Lee WrightSusan G. Wright

Gerald H. AckerJoel L. AlpertDaniel P. Beck

Jane M. BeckeringMichael J. BehmThomas R. Behm

Mark BernsteinSamuel I. Bernstein

William G. Boyer, Jr.Janet M. BrandonJohn P. Charters

David E. ChristensenDavid W. Christensen

Richard C. ClarkTerry L. Cochran

Barry R. ConybeareDennis J. Czeryba

Brian T. DaileyRobert H. Darling

Jo Robin DavisThomas M. DeAgostino

Ronald F. DeNardisMichael H. DettmerEugenie B. Eardley

Barry S. FaganStanley J. Feldman

Don FerrisDebra A. FreidCarrie L. Fuca

Scott A. GoodwinSteven E. Goren

Stephen L. GrimmSteven GurstenTroy W. HaneyJames M. Hofer

Raymond HorensteinVen R. JohnsonRobert B. June

Colleen V. KavanaughJoumana Kayrouz

Michael KellyRichard B. Kepes

Jeffrey S. KirschnerTraci M. Kornak

2006 - 2007 Executive Board Members

AAJ Governors

Linda Miller AtkinsonJames W. Baker (d)

Charles J. BarrGeorge J. Bedrosian

Jack H. BindesKathleen L. Bogas

Hon. Theodore R. BohnJames E. Burns (d)

Samuel Charfoos (d)Beverly Clark

I. Goodman Cohen (d)Marjory B. Cohen

Max DeanGeorge L. DowningLee C. Dramis (d)Carl R. EdwardsSheldon D. Erlich

David R. Getto

Benjamin Marcus (d), ATLA Past PresidentHarry M. Philo, ATLA Past President

Verdicts & Settlements EditorDebra A. Freid

Michael P. PianinMichael L. PittNicholas J. RineDean A. RobbPaul A. Rosen

Morton E. SchneiderSherwin Schreier

Jeffrey N. ShillmanHoward Silver

George T. SinasRichard M. Skutt

Cassius E. Street Jr.Norman D. Tucker

Duane S. van Benschoten (d)Barry P. WaldmanBryan J. WaldmanMark E. Weiss (d)

AAJ State DelegatesMarc Lipton Randall S. Miller

AAJ Diversity RepresentativeShalina Kumar

Chapter Presidents

Flint TLA — Michael J. Kelly Kalamazoo Co. — Gary Giguere Washtenaw Co. — Robert June Detroit TLA — Richard L. Steinberg

Sheldon Miller

3 President’s Column

by Jesse M. Reiter

15 Members in the News

23 Verdicts & Settlementsedited by Debra Freid13 How Goliath is Beating David in

Courtrooms Across America

19 Defending the Right to Trial by the People

21 Michigan Trial Lawyers AssociationMembers Met Senator Stabenow in DC

7 Kids in the Back Seat of Vehicles - WhyAre They Being Injured So Severely?

by Susan Lister


President’s Column

MTLA 2006-2007 PresidentJesse M. Reiter

To ensure that you will be ableto represent the client

of tomorrow. . . .Join JUSTICE PAC Today!!Call Susan Smith at MTLAat 517.321.3073 TODAY!

An Organization Is Only as Good as its Volunteers

We make a living by what we do, but we make a life by what we give. —Winston Churchill

Service to others is the rent you pay for your room here on earth. —Mohammed Ali

Volunteering is an act of heroism on a grand scale. And it matters profoundly. It does morethan help people beat the odds; it changes the odds. —President Bill Clinton

Dear MTLA Members:While we are practicing law in difficult times, there are

some glimmers of hope in the horizon. In its first 60 days insession this year, the Michigan State House, lead by SpeakerAndy Dillon, passed a comprehensive Kreiner Bill (HB 4301)and a bill reversing drug company immunity (HB 4044). TheState House announced an investigation into the ethicalpractices of the Michigan Supreme Court which is currentlyongoing. Later this year, the House will take up legislation tofix medical malpractice and the open and obvious doctrine.These fixes are necessary because of destructive “textualist”opinions which are taking away the rights of Michigan citi-zens.

Recognizing that we cannot go it alone, MTLA hasworked closely with CPAN, Michigan Defense Trial Counsel,the State Bar’s Negligence Section as well as legislators onboth sides of the fence. The medical malpractice fixes havebeen approved by the State Bar Negligence Section which ismade up of plaintiffs’ and defense attorneys. The Kreiner fixis supported by Democrats, many Republicans, and the Michi-gan State Medical Society.

This April, the State Bar General Assembly overwhelm-ingly passed MTLA’s proposal to establish guiding prin-ciples before considering support or opposition to special-ized dockets. Tom Rombach an MTLA member and State BarCommissioner co-sponsored the proposal with me. AlanCropsey, a Republican state senator, who is also on theAssembly, came out strongly in support of the proposal.This means the Michigan State Medical Society’s proposedlegislation for special health courts, which calls for the abol-ishment of medical malpractice law, no attorneys, no rules ofevidence, no court rules or experts and no constitutionalprotections, can now be opposed by the Bar, at our request,because is does not meet any of the guiding principles. In thefuture, MTLA will ask the State Bar to oppose any attemptsto legislatively create special courts which eliminate areas ofour practice and hurt our clients.

Our Amicus Team continues to work tirelessly moni-toring court opinions and intervening to assist memberswhen necessary. The Amicus team now consists of nearly 40hardworking MTLA members. Rather than being comprisedsolely of appellate lawyers, the new Team approach hasbrought together trial attorneys from all of the practice areasand appellate lawyers in recognition that appeals can oftenbe avoided with proper planning at the pretrial and discoverystages. The new goals of the Team are to serve an educa-tional function for our members, assist with appeals when-

ever possible, and to provide a ready network of lawyers whoare closely monitoring the fast paced changes in the law tokeep our members better informed. Team Amicus representsteam work at its best. Thankfully, Apsey has finally beenreversed! 477 Mich 120 (2007).

Our award-winning Helmet and Safety Campaign hasprovided an important community service to Michigan and tothousands of needy kids around the state. We have teamedup with hospitals, police and other safety organizations aswell as members of the media to provide a better awareness ofbike safety issues. By summer’s end, we will have given out15,000 helmets and prevented hundreds of traumatic injuries.

In May, we took the lead of the American Associationfor Justice (formally ATLA), and voted overwhelmingly tochange our name to the Michigan Association for Justice.Our new name better reflects our commitment as attorneys tofighting to protect and strengthen the civil justice system.Our goal is to ensure that everyone gets a fair shake evenwhen up against powerful interests. This will be second namechange in our in our 62-year history. Given the complexities ofname change, the process will take place gradually over manymonths.

In addition to our hardworking staff, it is the volunteermembers of this organization who have made these thingshappen. Volunteers make the amicus team run. Volunteersraised money to make MTLA’s influence felt in both Housesof the Michigan Legislature. Volunteers raised money andhanded out thousands of bike helmets to of kids. Volunteersorganized and spoke at our seminars. And volunteers workedclosely with staff on a day-to-day basis to run this organiza-tion. Without volunteer work by our members, there would beno MTLA.

I have always believed that we have an obligation togive back to an organization that gives us so much. Thegreatest honor in my life has been to serve as president ofMTLA. While the time commitment has been substantial, therewards are far greater. I want to thank all of those who havevolunteered so much of their time and effort and would en-courage others who have not to join in. While the MichiganSupreme Court and Court of Appeals can take away manythings we cherish, one thing they can never take away is thesatisfaction and dignity we get from volunteering. Please joinus in this fight because as Chief Justice Earl Warren oncesaid, “It is the spirit and not the form of law that keeps justicealive.”


Jonathan Abrahams, Farmington HillsMichael Behm, Flint & Tom Waun, Grand Blanc

Mark Bello, Lawsuit Financial Corporation, SouthfieldProfessional Chef Michelle Bommarito, Michigan

David E. Christensen, SouthfieldCrowne Plaza Novi - Detroit

The Law Offices of Cochran, Foley & Associates, LivoniaDBI Business Interiors, LansingDetroit Tiger, Inc., Detroit

Esquire Litigation Solutions, TroyRobert Ficano, Wayne County Executive, Detroit

Fieger, Fieger, Kenney, Johnson & Giroux, SouthfieldBarry Gates & Joyce Krantz, Ann Arbor

Gregory & Reiter, Bloomfield HillsDavid Haron, Frank, Haron, Weiner & Navarro, Troy

Hay & O’Rourke, LansingHotel Baronette, Novi

Hyatt Regency, DearbornGreg Janks, Sachs Waldman, Detroit

Richard Kepes, SouthfieldMichelle Lefke, MTLA

Berton May, West BloomfieldBrian McKeen, Detroit

Michigan Lawyers Weekly, NoviSheldon Miller, Southfield

Nuthouse Sports Grill, LansingDr. James O’Donnell, Pharmaconsultant, Inc., Barrington, IL

Jules Olsman, Olsman Mueller, BerkleyThe Polack Corporation, Lansing

Recovery Construction Services, Terry Habib, RosevilleGlenn Saltsman, Farmington Hills

Melvyn & Drew Saperstein, SouthfieldSerafini, Michalowski, Derkacz & Associates, Sterling Heights

Shanty Creek Resort & Club, BellaireSusan Smith, MTLA

Timothy Smith, Traverse CitySterling Law Office, Lea Ann Sterling, Empire

Norman Tucker, BrightonThe Westin Southfield

White House Settlement Consulting, Cyril White, ChelseaSusan Wright & Harry Philo, Jr., Detroit

Loud Thanks to the 2007

Silent Auction Donors!Through their generosity the auction raised over $10,500 to support MTLA’s amicus efforts.

Special thanks to 2007 Silent Auction Chairs Mel Saperstein, Glenn Saltsman & Tom Waun!


MTLA 62nd Annual ConventionOn May 4 & 5, the 62nd Annual MTLA Convention was held at the Hyatt Regency in Dearborn. The rapid fire seminar was

moderated by past presidents Thomas Hay & Bryan Waldman and featured 20 exceptional speakers.At the banquet, MTLA honored former House Minority Leader Dianne Byrum with our “Champion of Justice” Award. The

evening featured U.S. Senator Carl Levin, U.S. Senator Debbie Stabenow, Iowa Congressman Bruce Braley, Governor JenniferGranholm and cartoonist/political satirist Ted Rall. Copies of the CD that was shown at the MTLA Banquet are available by callingMemories Unlimited LLC at (586) 203-8897 or emailing [email protected].

Governor Jennifer Granholm,MTLA President Jesse Reiter andIowa Congressman Bruce Braley

US Senator Carl Levin and Larry Bennett

Jane Beckering, Jerry Thurswell andMTLA Executive Director Jane Bailey

MTLA President Elect Robert Raitt andhis daughters Jayden & Skylar with

US Senator Carl Levin

Governor Granholm withWolfgang & Shanna MuellerLisa Gleicher & US Senator Carl Levin

US Senator Carl Levin

Moderators and speakers at the May 4th annual seminar


MTLA Thanks Our2007 Annual Convention Exhibitors

Action Video & ImagingAdvanced Practice Consulting

Ameriprise FinancialB. Michael Grant, CPA

CareForwardCenter for Lien Resolutions

Ernest Chiodo, P.C.High Impact Graphics

Lawsuit Financial CorporationLeading Tech Forensic

Michigan Lawyers WeeklyNational Settlement Consulting

Preferred RehabilitationStructured Financial Associates

Victory FundingWhite House Settlement Consulting


Kids in the Back Seat of Vehicles - Why areThey Being Injured So Severely?

by Susan Lister; Peters & Lister, PC, Dearborn

IntroductionMotor vehicle accidents are the leading cause of death

among children in the United States. In 2002, 1543 childrenages 14 and younger died as occupants in motor vehiclecrashes and approximately 270,000 were reported injured.That’s an average of 4 deaths and greater than 622 injurieseach day.1

In the late 1980s, automobile manufacturers began toinstall air bags for the front seats of vehicles. Shortly after theinstallation of front passenger-side air bags, children in thefront seat started dying.2 The overly aggressive air bags weredesigned to deploy in low velocity accidents where the childin the front passenger seat would have easily survived but forthe air bag strike that severely injured or killed him or her.3 Inresponse to these incidents, Parents for Safer Airbags and theautomobile manufacturers, among others, petitioned theNHTSA for warnings that would advise parents of the risk totheir children posed by the deploying front passenger airbag.4 The resulting visor mounted warning instructs parentsthat the safest location for children 12 years and younger isthe back seat.5

Following that effort, an extensive advertising campaignexpanded on the message conveyed by the visor air bagwarning. “THE ABC’S OF AIRBAG SAFETY—THE BACK ISWHERE IT’S AT” campaign was funded by the automotiveindustry6 to educate parents that it was necessary to placetheir children in the back seat where they would be safer.7 Anadditional goal of this campaign was to convince children thatit is “cool” to sit in the back seat using the slogan “The Backis Where It’s At.”8 Following the lead of the automobileindustry, numerous states passed laws that mandate backseat use by children of certain ages.9

Sadly, little attention has been paid by automobile manu-facturers toward making the back seat of passenger cars,minivans and SUVs safe for the very children they are in-structing parents to place there - those 12 years of age andyounger. Rear seat lap and shoulder belts are designed toperform on the 50th percentile male test dummy. There are noperformance standards applicable to rear seat restraint sys-tems in any of the federal motor vehicle safety standards. Nofederal safety requirements exist to dynamically test for thesafety of rear seat lap and shoulder belts when used alone ona child dummy or in conjunction with aftermarket child seats.Warnings to the automotive industry from the governmentand the medical community that serious safety issues existedfor seat belt restrained children in this age group were plentifulby the 1990s.10

What Types of Injuries Are Seen in Children inthe Rear Seat?

The injuries that can occur in these types of cases aresimilar to the following description. A grandmother and herdaughter are taking the daughter’s two children to go shop-ping in their late model vehicle (sedan, minivan or SUV) withlap and shoulder belts in all outboard seated positions. Thegrandmother (58 years) is the lap shoulder belted driver. Themother (36 years) is the lap shoulder belted passenger. Agrandson (7 years) is seated behind the passenger with lapand shoulder belt restraint and a granddaughter (5 years) isseated behind the driver in the lap and shoulder belt. Thegrandmother crests a hill and another vehicle appears in herlane of travel out of control. The vehicles come together in afrontal angled, offset fashion on the driver’s side. The ve-hicles come to rest in the traveled lanes. The speed limit inthe area is 35 mph. The driver of the striking vehicle is a man(35 years old) who was attempting to avoid an animal in theroadway. He was lap and shoulder belted. As the EMSarrives, the injury patterns to the occupants of the vehicles

Originally appeared in Colorado Trial Lawyers Association’s Trial Talk®. ©2006 Susan Lister. All Rights Reserved.


emerge. The adults are all fine and out of the vehicles andmobile. The 5-year-old child is dead still fully restrained in theback seat and the 7-year-old child is a paraplegic with severeabdominal injuries and also fully restrained. What has hap-pened?

Another factual scenario is equally puzzling but a recita-tion of the events will assist in the later understanding ofthese issues. A mother and her young child are on their wayto the store. The mother is driving her minivan with bucketseats in the front. She is lap and shoulder belted. The motherweighs approximately 150 lbs. Behind her is her 3-year-oldchild properly restrained in a forward facing child seat. Themother wishes to make a left hand turn but the turn lane isoverflowing and she ends up waiting in line behind a couplecars in the travel lane. A van driven by a man who does notrealize that the vehicles are stopped hits the mother’s minivanin the rear. The minivan is crushed in the rear then pushedforward into the car in front of it. At the conclusion of theaccident the mother is found in her seated position more orless upright. She is fine. The child is found in the car seat andunconscious. The child seat is still fully restrained by thevehicle lap and shoulder belt and has suffered no damage.The child was not impacted by the vehicle that struck from therear. The child has suffered a massive brain injury. Why hasthis happened? The answers to these puzzles will be pre-sented in this article.

The Vehicle Rear Seat Environment for ChildrenThe relevant back seat safety environment for children

is made up of: (1) the vehicle seat the child is sitting onincluding its structure and padding; (2) the vehicle safety belt;(3) the structure that is behind the child separating him or herfrom the trunk in a passenger car; (4) the driver and right frontpassenger seat directly in front of the child; and (5) the sidestructures of the vehicle adjacent to the rear seat. Differenttypes of accidents pose varying risks to restrained children inthe back seat of vehicles depending on the success or thefailures of these systems. Restraint of a child in an accident isprovided by the safety belt the child is using and the seat thechild is sitting on. Both must work together to increase thelikelihood of survival without serious injury or death.

Liability Issues Associated with Rear Seat SafetyBelts

Current Lap and Shoulder Belt Designs Do Not RestrainChildren in the Post Child Seat Age Appropriately

The properly designed and tested lap and shoulder beltshould offer the best protection (next to an integrated child/booster seat and integrated three/four/five point restraints) ofthe systems currently supplied on production vehicles.11 Fora lap and shoulder belt to perform well on a child 12 and underit must at least fit properly.12 Proper fit is generally consideredto be a lap belt that is designed to sit low on the hips of thechild. Shoulder harness fit is proper if the shoulder harnesscrosses the clavicle at the mid-point.13 Few production lap andshoulder belt systems provide this fit for children. Oftentimesthe shoulder harness will cross the face or neck. The lap beltbuckles are positioned high off the seat and the child couldnot place the lap belt low on the pelvis even if he or she

wanted to do so.Proper performance of a lap and shoulder belt is deter-

mined through repeated sled testing14 of various designsutilizing an optimized child dummy until the maximum amountof seat belt retention is obtained across the broad spectrum ofsimulated accidents. Sled testing is a device used by automo-bile manufacturers to study restraint performance. An instru-mented child dummy is placed in a seat belt in a vehicle seatthat is mounted to a high speed sled. The sled is positionedand accelerated to duplicate a front, side, rear, or offset im-pact. The kinematics (movement) of the dummy is studied inslow motion and the data output is analyzed and both areused to predict injury. Proper performance is achieved whenan optimized child dummy’s kinematics are obtained whicheliminate or significantly minimize rollout of the child dummytorso from the shoulder harness and eliminate or significantlyminimize the submarining of the dummy pelvis under the lapbelt. Rollout occurs when the child’s upper torso exits theshoulder harness during the crash event exposing the child’shead, neck and abdomen to serious injury. In an actual crash,depending on the child’s age and size, he or she can sufferfrom a range of injuries: young children—C1-C3 paralyzingdistraction injury which sometimes results in death as respira-tory centers shut down; older children—L2-L4 fractures orT11-T12 fractures often with paralysis and/or head injuries.15

Submarining occurs when the child’s hips slide under the lapportion of the lap and shoulder belt and move forward on theseat loading the abdomen and the spine and exposing thechild to serious injury. In an actual crash, when a child’spelvis submarines under a lap belt, an abdominal abrasion orecchymosis may appear tracking the relative movement of thelap belt on the child’s body. Internally injuries to the duode-num, stomach, colon, jejunum and abdominal rectus musclesare caused by the compressive loads of the belt.16

Dynamic rollover testing should not be overlooked bythe manufacturer (although few manufacturers currently per-form such testing). Rollover accidents have been reportedwhere the rear seated child is completely ejected from a prop-erly adjusted and fully latched lap and shoulder belt.17 Thebelt is found by investigating police officers after the acci-dent still in the latched position. Ejection of the child from thelatched belt is also a function of the safety belt’s geometryand illustrates why testing for rollover performance is neces-sary.

Lap Belts Are Just Plain DangerousAlthough poorly designed lap and shoulder belts pose

a significant risk of serious injury and death to children 12 andunder, even greater risks are posed by back seat lap belts(found in the center position) because the lack of upper torsorestraint concentrates the accident forces on the abdomen(causing abdominal injuries and lower back fractures) andpermits full movement of the upper torso (causing head andneck injuries).18 Now that parents are being instructed (and insome states mandated by law) to place their children in therear seat of vehicles, the choice by automobile manufacturersto provide lap belts in the rear center position of passengercars, minivans and SUVs is close to criminal given the knowl-edge of the hazards posed by these belts that dates back tothe 1960s.19 For example, the 2005 General Motors Chevrolet


Venture minivan and the 2005 Daimler-Chrysler minivans allhave center lap belts in their rear bench seats. High backbooster seats cannot be used in lap belt only seated posi-tions forcing parents to place older children (using thesedevices to overcome poor lap and shoulder belt designs) inless safe outboard positions.

Liability Issues Associated with the Design andPerformance of the Vehicle Rear Seat

The vehicle rear seat plays an important role in keepingthe child properly within the confines of the safety beltduring the accident event. Back seats are not built to accom-modate the lower extremities of children. Manufacturersblame children for slouching in the rear seat. But the geom-etry and material composition of the seat cushion forces thechild into the slouched position.20 When a child adopts thisposture, the child’s pelvis rotates under the lap belt and pre-positions the child for submarining and the injuries describedabove. Dummy manufacturers have developed child dum-mies that attempt to represent various child postures to per-mit the study of the effect of these postures on restraint andseat design. Position of the pelvis, however, is not the onlyfeature contributing to submarining in the back seat. Theseat cushion can contribute to submarining unless the seatbottom structure is properly designed to retard submarining.Many front seats but few back seats contain proper anti-submarining ramp designs. These ramps are usually incorpo-rated in the seat pan that underlies the structures upon whichthe seat padding and the child sit. The ramp rises from backto front and acts to impede the forward motion of the hipsthus reducing the risk that the child’s hips can translateunder the lap portion of the seat belt in response to accidentforces. Given the propensity of children to submarine due tounderdeveloped pelvic structures and forced posture, theneed for an anti-submarining ramp in the rear seat is evengreater than in the front seat where it is routinely provided.The design of a rear seat also plays a substantial role in theprevention of injury from rear end accidents. Although thecollapse of seat backs and the subsequent ejection of theoccupant into the rear of the vehicle is an issue for the frontseat, it is an issue in the rear seat as well. The second andthird row “stand alone” bench seats in minivans and SUVshave a short seatback height, often only 20 inches above theseat bottom cushion and no headrest. The erect seatedheight of a 12-year-old child (and younger) can exceed thisdimension with the result that the head and neck extend overthe top of the seat in a rear end collision without a headrest toarrest this motion. Although the most likely result to arestrained child of this design failure is whiplash in a lowspeed accident, more serious injuries can occur at higherspeeds. There is no justification for providing less protec-tion to children forced to use the rear seat than they wouldhave had available to them if they could sit in the front seatwhere high seatbacks and head rests are provided.

Liability Issues Associated with the Design andPerformance of the Structure Behind the Child inthe Rear Seat

In passenger cars, the child sits on a seat that is formed

by the vehicle floor pan structure underneath the seatedposition. In some vehicles the portion of the structure thatforms the back of the rear seat also serves as the forwardaspect of the trunk compartment. During a frontal accident,contents in the trunk can move rapidly forward and strike theforward aspect of the trunk area precisely where the child issitting. Knowing this, as the manufacturers do, you wouldexpect substantial structure at the rear seat back/trunk com-partment interface if the back seat is truly “where it’s at” forour children. Some passenger cars have fold down back seatsthat allow long objects in the trunk to pass into the passengercompartment; these rear seat back/trunk interfaces are oftenmade of cardboard. The cardboard seat backs are mountedto metal bars with brackets that are used to “lock” the seatback upright and to permit the seat back to fold down expos-ing the trunk. Deformation of the cardboard seat back duringa frontal collision into the restrained child’s upper torso canproduce serious injury or kill the child by forcing the child intothe locked up seat belt. Bending of the metal bar forward atthe base of the seat back (into the child’s seated position)places a hard object into the path of the rebounding child andcan cause paralyzing fractures and other injuries. Even seatbacks or trunk enclosures made of metal can deform if notdesigned to withstand the forces imposed by acceleratedtrunk contents. This can happen in a rear impact accident aswell if trunk contents are forced into the rear seat passengercompartment because of the failure to incorporate a suffi-ciently strong rear seat back/trunk interface.

Liability Issues Associated with the Design andPerformance of the Driver and Right Front Pas-senger Seats That Are in Front of the Child in theRear Seat

When a child is seated in the back seat of a minivan orSUV, he or she is most likely positioned behind the driver orpassenger front seats to allow use of the outboard lap andshoulder belt instead of the lap only belt in the center. Thisplaces the child at risk if there is a failure of the front bucketseats in a rear end collision of sufficient magnitude.21 In rearend collisions, the seat back of the adult occupied frontbucket seat is subject to failure rearward at its hinge or adjust-ment mechanism.22 The front seat slams into the child andmay rebound into its original position in less than a second.Alternatively, the head of the front seat occupant can rampover the front seat headrest and strike the rear seated child inthe head or the chest. Often the child is killed. Many times theadult doesn’t even know what happened because the frontseat rebounds. Automobile manufacturers have known forover 30 years that failing front seat backs put rear seat pas-sengers at substantial risk.23 Recent technical articles showdramatic crash test sequences of the adult and child dummyinteraction and pose a design solution to this problem thatdiscusses the need for improved seat back strength becauseof the instruction to parents to place children in the rearseats.24 In determining who is responsible for a child’s deathin a rear end accident with a front seat failure you need toconsider the manufacturer of the subject vehicle for failures inthe vehicle front seat design (including seat designer andmanufacturer of a purchased seat) and possibly failures of the


rear safety belt system design and also a child seat manufac-turer if the child in the rear was restrained in a child or boosterseat that unreasonably permitted contact between the par-tially failed front seat and the child.

Even without failure of the front seat, children can strikethe back of the front seat if they experience roll-out of theshoulder belt or if they suffer a failure of a child restraint.25

Manufacturers concern themselves with the adult head strikezone on the backs of front seats to meet minimum federalstandards, but there are no standards dealing with the headstrike zone for children, which is in a very different place thanit is for adults. The back of front seats have no energyabsorbing padding but only comfort foam that is there foraesthetics. No manufacturer testing is routinely done todetermine the results of a child’s head strike into the back ofthe front seat.

This same danger is presented by the center consolethat sits in front of the rear center seat position in manypassenger cars, minivans and SUVs equipped with a lap beltat this position.26 Without a shoulder harness, the child’shead will invariably find its way in a frontal accident to theinsufficiently padded center console if the child has enoughtorso height. Crash testing has shown that a lap beltedshorter child can translate forward on the rear seat sufficientlyto hit his or her head on the floor structure even if he or sheisn’t tall enough to strike the back of the front seat or thecenter console.27

Liability Issues Associated with the Side Struc-tures Adjacent to the Back Seat

Children also have a very different impact zone relatedto intruding side structure and those portions of the sidestructure that children may hit if they come out from theirrestraint system. These issues are similar to those posed bythe design of the front seat discussed above.

Susan Lister, a partner of Peters & Lister, P.C., Dearborn,specializes in automobile design litigation. Her practice islimited solely to representation of plaintiffs.

1National Highway Traffic Safety Administration(NHTSA); Department of Transportation, Traffic Safety Facts2002: Children. Washington D.C. (2003).

2Starting in 1996, the NHTSA published Special CrashInvestigation (SCI) reports monthly that set forth deaths andserious injuries from air bag deployment. In the incidents, theNHTSA determined that but for the air bag deployment, thechild occupant would not have died or been severely injured.

See www.nhtsa.dot.gov for current reports and how torequest early reports.

3Id.4See 61 Fed. Reg. 152 at 40784 (published Tuesday,

Aug. 6, 1996) Docket 74-14 Notice 100 Issued July 26, 1996.5The language that appears on the visors is “WARN-

ING: DEATH and SERIOUS INJURY can occur. Children 12and under can be killed by the air bag. The BACK SEAT is theSAFEST place for children. NEVER put a rear facing child seatin the front. Sit as far back from the air bag as possible.ALWAYS use SEAT BELTS and CHILD RESTRAINTS.” Simi-

lar language also appears in the vehicle Owners Manual.6Chrysler played a prominent role in this campaign and

partnered with the American Automobile Association andthe American Academy of Pediatrics. Educational packetswere sent to more than 300,000 teachers, principals, schoolboards and PTA presidents representing some 160,000 daycare and private and public schools across the U.S. Seewww.kidsource.com (2004). NHTSA SCI Reports showed anoverwhelming number of Chrysler child front seat air bagincidents compared to other manufacturers. See supra note 2.

7Id.8Id.9See e.g., N.J. Stat. Ann. 39:3-76.2a (2004). For a list of

the child restraint provisions for each of the 50 states, seewww.highwaysafety.org. This is the Web site for the Insur-ance Institute for Highway Safety.

10Oct. 17, 1973 letter from J.C.Eckhold, Director Auto-motive Safety Office, Ford Motor Co. to Robert L. Carter,Associate Administrator, NHTSA. See also P.F. Agran et al.,Traumatic Injuries Among Children Using Lap Belts and Lap/Shoulder Belts in Motor Vehicle Collisions, 31st Annual Pro-ceedings of the AAAM 283-96 New Orleans, LA (1987); P.F.Agran et al., Injuries Among 4 to 9 Year Old Restrained MotorVehicle Occupants By Seat Location and Crash Impact Site,32nd Annual Proceedings of the AAAM 39-51 Seattle, WA(1988); P.F. Agran et al., Restraint Use Among Children inFatal Crashes Society of Automotive Engineers, SAE PaperNo. 973300 (1997).

11Although lap shoulder belts should offer the bestprotection to children, the rear belts often do not provide thesame level of protection as the front belts. Seat belt geometryin the rear seat is different especially if the seats are remov-able (minivans and SUVs). The non adjustable upper anchorgeometry in the second and third rows, often roof mounted,can result in shoulder harness roll-out or failure to contain achild seat. See Martha Bidez, Ph.D. & Stephen Syson, Kine-matics, Injury Mechanisms and Design Considerations forOlder Children in Adult Torso Belts, SAE 2001 World Con-gress, SAE Paper No. 2001-01-0172 (Mar. 5-8, 2001).

12A child may place a poor fitting shoulder harnessbehind the back or under the arm. Automobile manufacturersadvised parents to place the shoulder harness behind thechild’s back if it crossed the face or neck. See 1986, FordAerostar Owners Manual, p. 57. NHTSA made the samerecommendation. This can result in serious abdominal, spineand head injuries. Placing the shoulder harness under the armhas resulted in fatal injuries. See John States, M.D. et al., FatalInjuries Caused By Underarm Use of Shoulder Belts, 27(7) J.Trauma 740 (1987).

13The proper fit of a safety belt is largely determined bythe location of the anchor points, the webbing choice andlength, the buckle/tongue location and how close the seatbelt geometry brings the webbing to the body.

14Examples of crash tests using child dummies can beobtained from the NHTSA at www.nhtsa.dot.gov. To prop-erly prepare for a restrained child case it is imperative that yourequest the defendant manufacturer child dummy sled testingin discovery.

15See Bidez & Syson, supra note 11.16Id.


SPECIAL NEEDS TRUSTS andPROBATE COURT SETTLEMENTS

Our experienced Attorneys are ready to help you with settlement and advice with offi ces in East Lansing, Jackson and Ithaca – and available to work with MTLA members throughout the State

Creating Special Needs Trusts

Obtaining Probate Court approval of settlements and trusts

Establishing Guardianships and Conservatorships

Interacting with Clients and Government Agencies

•

•

•

•

Jackson Offi ce 2127 Spring Arbor Road

Jackson, Michigan 49203

East Lansing Offi ce139 Lake Lansing Road Suite 200East Lansing, Michigan 48823

Ithaca Offi ce 105 S. Jeffery Avenue

Ithaca, Michigan 48847

Chalgian and Tripp Law Offi ces, PLLC(888) 956-9600

SPECIAL NEEDS TRUSTS

AND PROBATE COURT

SETTLEMENTS

Attorneys Attorneys: Valerie Rice, John E. Bos, Rosemary Buhl, Gary W. Britton, Amy Tripp, Rhonda Clark-Kreuer, Wesley Harper, A. Michelle Lane, Doug Chalgian, and Mark Kellogg

17A rollover accident happened in Washington Stateinvolving a young boy who was fully restrained by a lap andshoulder belt in the front seat of an SUV. The police foundthe belt engaged after the accident. He was ejected and killed.His mother became a passionate child safety advocate andproposed Anton’s law that was passed by the United StatesCongress in 2003.

18John W. Garrett M.D. & Paul W. Braunstein, M.D,The Seat Belt Syndrome, 2 J. Trauma 220-37 (1962).

19Id.20The forced positioning results in two problems. A

child’s pelvic geometry is not well formed to keep the lap beltproperly positioned on the pelvis. The shoulder harness cannow move up the neck and catch the child under the chin.The child may put the shoulder harness behind the back orunder the arm or move closer to the buckle of the belt whichincreases the tendency for roll-out. See supra note 14.

21Kenneth J. Saczalski et al., Experimental Verification ofBiomedical Occupant Response Predictions for Front andRear Seated Passengers Subjected to Rear Impacts, SAE Pa-per No. 03DHM-32 (2003); Kenneth J. Saczalski et al., Study ofSeat System Performance Related to Injury of Rear SeatedChildren and Infants in Rear Impacts, ASME Int’l Mech. Eng.Cong. aned Exp., Paper No. IMECE2002-AMD-33517 (2002);Kenneth J. Saczalski et al., Evaluation of Rear Impact SeatSystem Performance Using a Combined Load Neck InjuryCriteria and Hybrid III Surrogates, ASME Int. Mech. Eng.Cong. and Exp. Paper No. IMECE2991/AMD-25444 (2001).

22Id.23D. Severy et al., Collision Performance in the LM

Safety Car, SAE Paper No. 670458 (1967).24See supra note 20.25There are several ways a child seat or the vehicle

restraint system attaching the child seat may fail, resulting inhazardous excursion. Some examples are: the vehicle seatbelt buckle can inertially release causing the child seat torelease, the child seat can rotate out of the lap shoulder beltespecially if the accident involves vehicle rotation and theretaining strap in a high back booster seat can break allowingforward motion of the seat.

26At the very least, automobile manufacturers shouldgive parents the option of an add-on shoulder harness for thecenter rear position. They should advise parents that theoption is available and the reasons why a shoulder harness isneeded or the option will not sell. The general rule is, how-ever, that safety should never be an option.

27Early NHTSA frontal crash tests with rear seat childdummies in lap belts show the dummy heads reaching thefloor board area. See www.nhtsa.dot.gov to order crash testsfrom NHTSA.

Insurance Bureau AdjustsWork Loss Payment Effective 10/1/06

As prescribed by Administrative Rule 500.811, the statutoryadjustment was applied to the previous maximum of $4,400 permonth. Accordingly, the new maximum work loss paymenteffective October 1, 2006 through September 30, 2007 is $4,589per month for work loss benefits under personal protectioninsurance policies.

The new maximum also applies to survivor’s loss benefits.

www.michigan.gov/ofis



The listserve is one of our most popu-lar and valuable member services! Participants have found it to be a great resource for quickly gathering information on a variety of topics. It allows members to ask questions and make comments via email to approxi-mately 800 other MTLA members. If you would like to be included, please call MTLA at 517.321.3073 and we will add you the list… at no charge.

E M A I L L I S T S E R V E

Michigan Trial Lawyers Association

by MTLA President Jesse M. Reiter, Gregory & Reiter, PC, Bloomfield Hills

The Purchasing of Our State Supreme Courts:

How Goliath is Beating David inCourtrooms Across America

The Chamber of Commerce’s recent call for furtherlegal reforms in Michigan has no basis in fact or reality: theoverwhelmingly consensus is that that the pendulum hasswung too far in favor of special interests like insurancecompanies and away from Michigan families. The real rea-son for the Chamber’s resent proposals is to obscure itshidden agenda of buying courts across the country.

Over the last several election cycles, the U.S. Chamberof Commerce and its powerful corporate backers have beensilently purchasing state supreme court seats across thecountry. As a result, many state supreme courts which wereonce fair and neutral now favor big business interests. Thisin turn has left average citizens without a voice in our courtsystem and is making our system less democratic.

The Chamber’s state supreme court strategy is simple:“buying a new court… [is] far cheaper than changing thedirection of fifty legislatures.”1 Since the Chamber under-stands that Americans would never willingly allow their rightsto be openly eliminated, it is quietly pouring huge sums ofmoney into formerly sedate and inexpensive judicial elec-tions, effectively buying the state court systems where citi-zens’ rights are enforced.

The Chamber’s goal is equally simple: to return Americato the “gilded” age when workers and citizens had few rightsand corporations and insurance companies were immunefrom lawsuit. During that early era of American history,companies had no incentive to make working conditions orproducts safe since there was no risk of legal action. The

Chamber’s strategy ignores the health and safety of Ameri-can citizens and instead focuses exclusively on corporateprofits.

Michigan is a good example of the Chamber’s strategy.Up until about ten years ago, the typical Supreme Courtelection campaign in Michigan was a quiet and little-noticedaffair that commonly cost less than 10% of a Governor’s race,often even less. The Chamber of Commerce and the U.S.Chamber of Commerce saw an opportunity in Michigan tocreate what they now call a “model court” here in Michigan.So they opened their war chest and took aim at our courts.

By 2000, the nasty and contentious campaign for theMichigan Supreme Court cost over $16 million dollars, makingit the most expensive state Supreme Court race in U.S. history.Since that time, the Michigan Supreme Court has become themost pro-business, anti-consumer court in the nation rulingfor insurance companies and against average citizens about80-90% of the time.

While Michigan may have been an early casualty, it isnot alone.

In Alabama in 2000, the Chamber raised $8 million totarget judges and buy supreme court elections. The targetingwas so successful that the Chamber swept five of the nineseats of the Alabama Supreme Court and gained yet anotherpro-business majority.

With these and other successes in 2000, business groupsand the Chamber doubled contributions in 2002. While candi-dates less beholden to big business were starting to figure


out what had hit them, there was little they could do in the faceof the world’s most powerful business special interest. Asone political strategist observed, non-Chamber judicial candi-dates were “blown away in spending….That is why the courtshave been overtaken by corporate-interest groups. The les-son is, you have to have money to win these races.”2

The Chamber was again extremely successful with Su-preme Court races in 2002 winning all nine seats it had tar-geted.

Between 2000 and 2004, the Chamber spent more than$120 million targeting formerly sleepy state Supreme Courtraces, most of it through the Institute for Legal Reform, a tax-free affiliate.3 All that spending paid off handsomely. In the2004 elections, for example, the Chamber’s political musclewon every single one of these lopsided contests.3

Money was not the only weapon being used to crushthe Chamber’s judicial opponents. The business lobby en-tered many of these battles with brass knuckles using mud-slinging and misleading advertising. In Michigan, theChamber’s ads referred to one well-respected judge as a “pe-dophile.” In Mississippi, the Chamber knocked off Chief Jus-tice Chuck McRae –a tireless advocate for victims’ rights—byimplying McRae was “soft on child-molesters.” In West Vir-ginia, the Chamber defeated Chief Justice William McGraw byfunding ads that referred to McGraw as a pedophile, a tacticthey had previously used with success in Michigan. Theyalso accused him of allowing a child rapist to work in a school.

Most recently in 2007, the Chamber invaded Wisconsinand spent millions to ensure that a pro-business justice wouldbe elected.

In state after state —Michigan, Illinois, Ohio, Missis-sippi, Alabama, West Virginia, Wisconsin—the results of theseefforts to “buy justice” at any cost have now become obvious.Laws designed to protect working families, consumers, theenvironment and access to justice are being overturned ortwisted in favor of special privilege and immunity from justice.Injured citizens and workers now routinely lose to insurancecompanies and meritorious cases are thrown out all the time.

At the same time, insurance company profits are sky-rocketing while doctors and patients alike are being price-gouged by ever rising insurance premiums. Insurance compa-nies have canceled policies for hurricane victims and deniedclaims of injured citizens because they know they will getfavorable treatment by pro-business courts. All this is beingdone to protect new special privileges and immunities grantedto insurance companies by these new “tort reform” courts.

Families injured in auto accidents or home fires are forcedto sue their insurance companies –or one another—in desper-ate attempts to work their way through the newly “reformed”legal systems designed to protect insurance companies andbig business.

In Michigan our “Supreme Insurance Court” has de-clared that visible dangers are “obvious” to the blind; RoadCommissions created to ensure safe roads have “no duty” tomaintain safe roads; the drug industry has absolute immunityfrom recourse to the thousands of people killed by dangerousdrugs (the only state in the country that has this immunity);those injured, disabled and disfigured by drunk drivers in autoaccidents cannot collect from the insurance policies they pur-chased because they were not injured horribly enough; pa-

tients who have the wrong limb removed by a quack doctorare barred from justice through a maze of loopholes based onstatutory privileges and immunities from the 1980s and 1990,and the list goes on.4

Our system of justice was created so that all of uscould be equal before the law. Our system of Democracycannot function when the most powerful among us can pur-chase special privileges and immunity at the expense of therest.

Unless this new tactic of “buying justice” funded bycorporate special interests with more money and clout thanmost nations can be reversed, Americans can look forward tomore judicial pedophile campaign ads, more hundreds ofmillions spent to buy judicial elections, and more corruptedand twisted laws designed not to protect people, but toprotect the profits of those who wrote the checks for theelection ads. Americans need to join in the fight to keep oursupreme courts fair and impartial and to make sure corpora-tions and insurance companies are held accountable for theiractions. Otherwise, we will return to the gilded era of theearly 20th century where we had no rights of recourse.

1 Stephanie Mencimer, Blocking the CourthouseDoor 62 (2006).

2 Bara Vaida, Judging Politics, National Journal, Feb-ruary 3, 2007, at 36, 41.

3 Zach Patton, Robe Warriors, Governing Magazine,(March 2006) http://www.governing.com/archive/2006/mar/judges.txt.

4See Lugo v Ameritech, 464 Mich 512 (2001), Allgaierv City of Warren, 477 Mich 993 (2007); Nawrocki v MacombCounty Rd Comm, 463 Mich 143 (2000); Taylor v Gate Phar-maceuticals, 468 Mich 1 (2003); Kreiner v Fiscger, 471 Mich109 (2004); McDougall v Schanz, 461 Mich 439 (2000),Scarsella v Pollak, 461 Mich 547 (2000), Wickins v OakwoodHealthcare Sys, 465 Mich 53 (2001), Waltz v Wyse, 469 Mich642 (2004), Roberts v Mecosta Gen Hosp (After Remand), 470Mich 679 (2004), Burton v Reed City Hosp Corp, 471 Mich745 (2005), and Woodard v Custer, 476 Mich 545 (2006).

Save on YourLong Distance!

Call Accxx Communications topay only 3.9 cents per minute inMichigan and have 7% of your

long distance bills sent to MTLA.

Call Bernie at 877-864-3447.


Coming Events . . .

Evidence/DaubertEvening Forum

September 20, 20076 - 9 p.m.

Co-Moderators:Steven Gursten & Linda Turek

Crowne Plaza Hotel, Novi

Medical MalpracticeOctober 11, 2007

Co-Moderators:Jesse Reiter & Judy Susskind

Hotel Baronette, Novi

Filling the Gap: Expanding YourPractice with Commercial Litigation

October 26, 2007Moderator: Catherine Groll


Employment LawNovember 15, 2007

Co-Moderators:Cary McGehee & Barry Fagan


Jury SeminarDecember 7, 2007

Co-Moderators:Bob Raitt & Jane Beckering


Congratulations to MTLA Members in the NewsFormer MTLA President Bryan J. Waldman was appointed to the Civil Service Commission by Governor Jennifer Granholm.Mr. Waldman’s term commenced on May 24, 2007 and ends on December 31, 2014.

MTLA Executive Board member Michael Morse was appointed to the Michigan Board of Chiropractic by Governor JenniferGranholm. Mr. Morse’s term commenced on April 12, 2007 and will end on December 29, 2009.

MTLA Executive Board member Frank Rhodes was appointed to the Crime Victims Service Commission by Governor JenniferGranholm. Mr. Rhodes term commenced April 12, 2007 and will end on September 27, 2008.

MTLA member Albert Dib received the “Adjunct Faculty Rookie of the Year” award from the University of Detroit, Mercy,School of Law.

Special recognition toMTLA's newest

Monthly JUSTICE PACContributors!

David Carl AndersonLaw Offices of David Carl Anderson, Troy

William W. Decker, Jr.William W. Decker, Jr. LLC, Grand Rapids

Carol R. DuCharmeLaw Offices of Jason A Waechter, Southfield

Their ongoing commitment totheir clients and profession

is greatly appreciated!

Many thanks also to

who increased their monthly support.

Barry AdlerAdler & Associates, Farmington Hills

David E.ChristensenGursten, Koltonow, Gursten, Christensen & Raitt

Southfield

Steven StilmanAdler & Associates, Farmington Hills



will represent your clients in Ohio onreferral basis. Injury or death claims, TBI,auto, railroad crossings, products,professional negligence, UM and bad faithclaims.

ATLA; OATL; NBIA; OBIA;NBTA; ABA; OSBA. Toledo andColumbus offices.

JACK FYNES1000 JACKSONTOLEDO OH 43624(800) 444-6659

(419) [email protected]

OHIO COUNSEL

CIVIL TRIAL SPECIALIST

No-Fault Institute IV

Two-Day No-Fault Institute Drewa Crowd of Nearly 150

(l-r) Speakers Greg Gromek, Michael Morse, Richard Burns, and RonniTischler, Co-moderator Wayne Miller, speaker Tom Hay,

Co-moderator George Sinas

Marc Lipton

Terry Cochran

Glenn Saltsman

Steven Gursten

Co-moderators George Sinas and WayneMiller once again put on an excellent seminar forMTLA plaintiff members on June 7 & 8. The event,titled, “No-Fault Institute IV,” was held at theWestin in Southfield and featured 29 speakers onboth PIP litigation and tort litigation.

Tapes of the seminar are available to MTLAplaintiff members by calling 517.321.3073.


Over the past eight years the generous members ofMTLA have stepped up to pledge and donate their time forour state-wide MTLA Helmet Safety Campaign.

By the end of the 2007 season, the members of MTLAwill have purchased and fit over 15,000 helmets on the headsof Michigan kids!

The MTLA Helmet Safety Campaign is getting theword out about the generous and community spirited trial

MTLA Fits 15,000 Helmets on Children

bar. So far in the 2007 Campaign we have been featured fourtimes in the Legal News, twice in Lawyers Weekly, been partof three live radio broadcasts in the Detroit and Lansingmarkets and been on three TV broadcasts [Lansing, GrandRapids and Detroit].

PLEASE consider making a donation to the 2007 MTLAHelmet Safety Campaign today!! Call Jesse Green at 517-321-3073.

These kids participated in the2007 MTLA Helmet Safety Campaign

at the “Hare Racer” bike racein Adrian on May 12, 2007!

Many thanks to Jack Nolish, Michigan StateDirector of the Workers Compensation

Agency for spending four very busy hoursfixing bikes for kids.

Tim Paulding, Nate Appledorn, Jackie Hosey, Sarah Hartand John McCubbin at Camp T in Greenville

with the 41 MTLA helmets donated bythe MTLA Helmet Safety Campaign.

Goodwin & Scieszka gave out newbikes to lucky children like this girl

and her family.

We celebrated by awarding aFREE BIKE to the child who

received the honorary 15,000thMTLA Safety Helmet!

President Jesse Reiter presented thewinner with a certificate.

On June 9, 2007 the MTLA Helmet Safety Campaigncame to the Fellowship Chapel in northwest Detroit.

We fit more than 400 helmets, repaired dozens of bikesin the Bike Repair Station, gave away 8 bicycles and

taught kids to ride safe in the Bike Safety Rodeo.

MTLA Administrative AssistantMelissa Mattoon’s son Lucas

(middle) helped out with his friendsat the Lansing event.


I want to thank the members of this organization forhonoring me with the Blair S. Moody, Jr. award. The awardhas special meaning to me and I hope to all of you. Almost 25years ago, the leaders of this fledgling group met in thelibrary of our law office on Huron street and considered whatwe could do to honor Justice Blair Moody, who had justpassed away while serving on the Michigan Supreme Court.

Very few in this room even know who Justice Moodywas, much less what he stood for. He was a Justice of theMichigan Supreme Court from 1977-1982. As the award de-scription suggests, he was the most ardent defender of theright to jury trial in the history of the Michigan SupremeCourt.

Many years later when his portrait was unveiled, hisfriend (and mine) attorney Gene Mossner said: “One of thethings that Blair stood for and defended always was the right,the sacred right, of trial by jury that’s written into the bill ofrights. Today, when that right is being attacked in so manyways, subtle ways, it is good that we remember people likeBlair and vow to defend it as vigorously as he did.”

His former partner, Leonard Wilcox, said:“His political philosophy, which was expressed in many

conversations, was progressive and pragmatic. He deeplybelieved in the dignity of every individual, the need to re-dress the power relationship between the privileged and theweak, and to advance the cause of blacks and other minori-ties that they might more fully share in the benefits of thisgreat land. He respected others who shared his dedication togood government, even though they chose to do so throughthe work of the Republican Party.”

I hope that I am the recipient of this award as someonewho has vowed to defend the right to a jury trial as vigor-ously as Blair Moody and I accept it in that spirit.

Many of you know that for several years I have taughtat Eastern Michigan University in the Criminology and Politi-cal Science departments. When I teach about the American

legal system, I try to convey to my students the historicalcontext of our constitution.

This country is unique. Our founders had the revolu-tionary idea that a nation should be governed by its peopleand not by monarchs or the autocratic elite. They built in ourconstitution the basic premise that the government would becontrolled by the mass of the population, determined by theirnumbers and not by their wealth or power. They built asystem, one which is being tested daily by the current Presi-dent, where the people’s will is to be the nation’s will.But they went a step further in another unique manner. Theydecided that the people should determine not only questionsof national policy, but that they should decide matters ofjustice in individual cases. The jury system reflects thiscountry’s historical constitutional commitment to be gov-erned by the mass of the population. I would suggest tocurrent majority justices of the Michigan Supreme Court thatthey take a closer look at the “Federalist Papers” the next timethey are at one of their Federalist Society meetings. Theywould find that the insistence on trial by jury was one of thestrongest demands of the framers of the constitution. As deTocqueville observed, “[t]he system of the jury, as it is under-stood in America, appears to me as direct and as extreme aconsequence of the dogma of the sovereignty of the peopleas universal suffrage.”

Our justice system, like the rest of our constitutionalframework, is designed to be “by the people,” and in thejustice system those “people” are the jurors, not the judges.The constitutional guarantee to a jury is a specific commit-ment to allow random representatives of the public to makedecisions about individual justice. It is one of the few ves-tiges of direct democracy in our system and it is the quintes-sential example of this country’s democratic ideals.

As my former law professor, Paul Carrington, said “oneconstant feature of the jury has been its status as a represen-tative of the community being governed.” Author Jeffrey

Washtenaw Circuit Judge Donald Shelton was awarded the Justice Blair Moody, Jr. Outstanding Judge Award at theWashtenaw Trial Lawyers Associations Annual Award Banquet in May. He gave MTLA permission to reprint his acceptancespeech.

Defending the Right to Trial by the People


Abramson has said “the jury version of democracy standsalmost alone today in entrusting the people at large with thepower of government.”

If Blair Moody could see what is happening today hewould turn over in his grave (and I don’t just mean the factthat I am actually getting an award with his name on it!) In thelast decade the appellate courts of this state have systemati-cally sought to diminish or eliminate the right to a jury trial forour citizens. And they have for the most part succeeded.

There is a reason why the framers of our constitutioninsisted that people and not judges would be the arbiters ofindividual justice in this country. They knew that judgescannot be trusted. They knew from experiences in Englandand in the colonies that judges are just frail men, and todaywomen, subject to corruption by the very power they areentrusted with and, even more dangerously, subject to mak-ing decisions to favor the dominant elite that put them in theirposition in the first place. They had seen judges do awfulthings. They had seen the judge in the William Penn trial evenlock up jurors to coerce them into returning a verdict for theruling powers.

They did not condemn all judges or think that we didnot need them. But they knew that when it came to doingjustice for the ordinary citizens, they needed to trust thepeople themselves, sitting as collective representatives of thecommunity, to do true justice.

What we have seen in this State in the last decadedemonstrates first of all that the framers were right. The rulingmajority on the Michigan Supreme Court, now known as the“gang of four” has taken the right to jury trial away from manyof our citizens. They have done it very cleverly and with agreat deal of legal rhetoric. But their legalistic trappings are aruse.

In medical malpractice cases for example, it is not reallyabout whether an affidavit was signed in front of a notarypublic sworn under some ancient law. It is not really aboutwhether the proposed expert has a subspecialty in the sub-specialty of the organization in which the defendant is amember. It is not really about whether the notice of the claimwas filed on the 181st or the 182nd day after the victim diedfrom the medical treatment. What it is about for them ismaking sure that real people on a jury never get to decidewhether a wrong was done and who did it.

Where a person is injured in a fall, it is not really aboutthe legalistic citations of the rules regarding comparativenegligence. It is not really about the jargon of a doctrine of“open and obvious” that says a blind man should have seen,or a lame woman should have walked around, a dangerouscondition. What it is about for them is making sure that realpeople on a jury never get to decide whose fault the accidentwas and who should bear the burden of the injuries thatresulted.

When a child is injured in an automobile accident, it isnot about applying the legal philosophy of “textualism” to astatute that says adults should file their legal claim for com-pensation for their injuries within one year. What it is reallyabout for them is making sure that real people on a jury neverget to decide if the child is entitled to the insurance compen-sation that his or her parents paid so dearly for.

No, the reality is that this is precisely the corruption

that the founders of our country feared the most. Left alone,judges can do awful things. Oh they will dress them up inlegal jargon, but in the end judges are susceptible, as thisState has so disastrously demonstrated, to determining whatis justice by deciding what is best for the interests of thepowerful autocracy that gave the judges their small share ofthat power.

Shame on them. And shame on us for not standing upfor the people and demanding our constitutional right to atrial “by the people”.

Aristotle said that democracy’s chief virtue was theway it permitted ordinary persons drawn from different walksof life to achieve a ‘collective wisdom’ that none couldachieve alone. The jury is the last best refuge of this connec-tion between democracy and the achievement of justice bothfor, and by, ordinary persons.

So I accept this award in the spirit in which I trust it wasbestowed. I accept it as a challenge to me to continue mycommitment to democracy as it is so truly represented by thejury system.

At his 1977 swearing in, Blair Moody said:“The position of Justice of the Supreme Court belongs

to the people. It is now only loaned to me. I shall try to use itwith great care, for I have the duty, someday, to pass it on inthe best condition possible. And, in the meantime, I shall domy best and never forget the words of Harvard: “the greatestglory of a freeborn people is to transmit that freedom to theirchildren.”

In recognition of this award, I promise to continue mydedication to that freedom as long as the people ask me to doso and loan me their robe to wear.

Thank you.

Pursuant to MCL 600.1483, Subsection 4 (1), the StateTreasurer of the State of Michigan has certified that theannual percentage increase in the Detroit consumer priceindex for the 2006 calendar year was 3%. For causes ofaction arising after September 30, 1993, this results ina cumulative 40.8% increase in the standard limitationof noneconomic damages for a 2007 limitation of $394,200and a cumulative 40.8% increase in the limitation onnonecomomic damages for certain permanent disabilitiesfor a 2007 limitation of $704,000. For causes of actionalleging medical malpractice arising before October 1,1993, the 3.0% increase in the Detroit consumer priceindex results in a cumulative 84.1% increase in theprevious $225,000 limitation of noneconomic damagesfor a 2007 limitation of $414,200.

www.michigan.gov/treasury

Medical Malpractice Non-EconomicDamage Cap Consumer Price

Index Adjustments


(l-r) Troy Haney, Joel Alpert, Tanya Lamnin, Bob June,Jules Olsman, Denice Levasseur [digitally altered]

On May 24, 2007 Joel Alpert, Jules Olsman,Bob June, Troy Haney and Tanya Lamnin repre-senting MTLA, along with Bob DeRose, Presi-dent-elect and Randall Scott, Executive Directorof Workers Injury Law & Advocacy Group(WILG), the national non-profit membership or-ganization dedicated to representing the interestof workers who suffer the consequences of workrelated injuries and occupational illnesses, SueSteinman, Director of Policy for Public Affairs ofAAJ, Denice LeVasseur representing Delphi, andDouglas Holmes, President of UWC-Strategic Ser-vices on Unemployment and Workers’ Compen-sation (a national association exclusively devotedto representing the interest of the business com-munity on national unemployment insurance/em-ployment services and workers’ compensationpublic policy issues) met with United States Sena-tor Debbie Stabenow and her staff members SanderLurie, Chief of Staff, Oliver Kim, Senior Legisla-tive Counsel, and Paul Lyons, Legislative Fellow,to discuss the proposed Medicare SecondaryPayer and Workers’ Compensation SettlementAgreements Act of 2007. Senator Stabenow andher staff were most gracious and afforded us over2 hours of their time to discuss this pressing sub-ject.

The Medicare Secondary Payer and Work-ers’ Compensation Settlement Agreements Act of2007 was introduced on May 24, 2007 as H.R. 2549by Rep. John Tanner (D-TN) and Rep. Phil English (R-PA). Weare hoping that Senator Stabenow, among other Senators, willagree to sponsor the Senate version of the Bill. It is unlikelythat it will be a freestanding Bill and will most likely be attachedto and packaged with other legislation. Senator Stabenow andher staff were impressed by the fact that this proposed legisla-tion is supported by the improbable consortium of business,insurance, and injured worker interests.

The proposed Bill would amend the Medicare SecondaryPayer Act (MSP Act). Highlights include: exempting workers’compensation settlements of $250,000 or less from the Medi-care Set Aside procedures; defining and establishing that a“qualified” set aside satisfies all obligations under the MSPAct; creating a “safe harbor-set aside” that is deemed ap-proved if it’s amount is ten percent of the total settlement;establishes a means for appeal; allows for optional direct pay-ment of set aside funds to CMS; requires CMS to notify theparties of any conditional payments within 60 days after arequest for information is made; and allows for the reduction ortermination of the set aside upon the death of the claimant andsatisfaction of the outstanding payment obligations, or if after

Michigan Trial Lawyers Association Members

Met with Senator Stabenow in DCby Joel Alpert; Alpert & Alpert, Southfield

5 years the claimant’s medical condition has improved to anextent justifying a 25 percent or greater reduction.

Nationally, labor interests are in agreement with theBill if it is “revenue neutral”, that is if it does not shift thecost of medical care from business and insurance intereststo employees or the federal government. This proposedlegislation can easily be modified to make it revenue neutral.The proposed Bill is currently being “scored” by the appro-priate government agency. (“Scoring” determines if theproposed legislation will create an inflow or outflow offunds for the government.)

All of the members of the delegation who met withSenator Stabenow and her staff were encouraged by theattention and response received. Your Workers’ Compen-sation Committee will continue to pursue this meaningfullegislation and will keep you advised of all further develop-ments.

Jules, Bob and Troy met separately with SenatorStabenow’s staff and discussed other areas of concern tothe MTLA.


Over 140 people attended the 4th Annual Mark WeissDay at Comerica Park on June 8 in memory of MTLA PastPresident Mark E. Weiss. The event was the most successfulyet, raising about $19,000. To date, the foundation has helpedpay the tuition for 9 law students. WSU Law school hasgraciously agreed to cover the costs of the event so that allevent proceeds go into the Mark Weiss memorial fund.

At the generosity of Past President Barry Waldman,

about 25 tickets were given to Cass Community Social Ser-vices so that agency volunteers could attend the game. Partof the program next year will be to promise to donors that ifthey pay but can’t come, a deserving kid from a welfareorganization will get to go to the picnic and game.

Special thanks to Kathy Chisolm of Michael Pitt’s of-fice who handled all the mailings for the event.

Event Commtitee Members Michael Pitt, David Weiss (Mark’s brother), BarryWaldman, Ken Mogill and Jon Posner. Ken and Jon were Mark’s law partners.

4th Annual Mark Weiss Day at Comerica Park

A good time was had by all attendees.

Although the Tigers lost to the Mets in the shortest gameof the season, our 140 attendees had a great time

supporting the Mark Weiss Memorial Fund.


Verdicts & SettlementsDebra Freid, Verdicts & Settlements Editor

Thousands of Experts One Call Away

SAPONARO, INC.

Medical Malpractice

Product Liability

Personal Injury

Trusted by Trial Lawyers since 1974

800-327-3026www.SaponaroInc.com

Margaret Barber v William Beaumont HospitalOakland County Circuit CourtHon. Fred Mester

In this nursing malpractice case, the Defendant at-tempted to preclude Plaintiff from introducing critical evi-dence regarding the negligence of the nursing staff at Beau-mont by using Badalamenti v William Beaumont Hospital.1Plaintiff’s counsel successfully persuaded the Court to leavewhat, in this case, was a credibility decision, to the Jury.Despite the fact that the Defendants described a series ofevents that was diametrically opposed to that testified to bythe Plaintiff and Plaintiff’s mother, the Jury ultimately be-lieved the Plaintiff.

The plaintiff, Margaret Barber, was a 48-year-old regis-tered nurse. Ms. Barber’s mother was also a registered nurse.In July of 2002, Ms. Barber began to experience symptomsthat were consistent with congestive heart failure as a conse-quence of damage done to her heart by radiation therapy forcancer that she had had as a teenager.

On July 24, 2002, she underwent mitral valve repair andtwo-way bypass. She was then kept in the intensive care unituntil July 29th, at which time she was transferred to a telem-etry unit. At the same time, many of the pressor drugs thatshe had been on in the ICU were discontinued. Ms. Barber’scondition deteriorated to the point where she felt that shecould not walk to the bathroom. Nursing personnel at WilliamBeaumont Hospital forced her to walk to the bathroom andthen left her unattended for somewhere between 8 and 15minutes while she was in the bathroom. During that time,Plaintiff suffered cardiogenic shock resulting in cardiac arrest.Plaintiff was in intensive care for 3 weeks and was left withdiminished cardiac output.

There was a significant factual dispute as to how longMs. Barber had been left unattended, what her condition waswhen she had been left, and who had found her in the bath-room. The nursing personnel claimed that they found her inthe bathroom after being alerted by telemetry that she was inheart block. Plaintiff’s mother, a registered nurse herself,testified that she found Ms. Barber in the bathroom uncon-scious and had to obtain assistance from nursing personnel.Apparently, the jury believed the mother.

The case mediated for $190,000. Plaintiff accepted butDefendant rejected. No offer was made. Plaintiff’s expertsincluded Sharon VanRiper, R.N., from Ann Arbor and Dr.Arthur Levene, M.D., an expert in cardiology from Littleton,Colorado.

After trial, the Jury returned a verdict for $158,500. Withcosts, fees and case evaluation sanctions, the judgment willbe in excess of $198,000.

Plaintiff was represented by Richard Brewer ofSouthfield.

1 In Badalamenti v William Beaumont Hospital, 237Mich App 278 (1999), the Court of Appeals held that “... anexpert’s opinion is objectionable where it is based on as-sumptions that are not in accord with the establishedfacts....citations omitted..... This is true where an expertwitness’ testimony is inconsistent with the testimony of awitness who personally observed an event in question, andthe expert is unable to reconcile his inconsistent testimonyother than by disparaging the witness’ power of observation.citations omitted”

CONFIDENTIAL

Using focus groups and mini-mock trials during discov-ery to pinpoint and address problem aspects of liability andcausation, helped Plaintiff’s counsel obtain a substantial settle-ment in a medical malpractice case rife with causation difficul-ties.

Near to term in her pregnancy, Minor-Plaintiff’s motherpresented to her prenatal treating office in the late morningcomplaining of decreased fetal movement. She was a diabeticwith a twin gestation. Prior ultrasound suggested twin sizediscordancy, though this had not been charted. Non-stresstesting during this morning visit was non-reactive with anon-reassuring pattern. The office contacted the hospital forfurther fetal well-being testing. A hospital appointment wasscheduled for the mid-afternoon, the first timeslot available inthe antenatal testing unit.

Upon arrival at the hospital, ultrasound biophysicalprofile exam was abnormal. Over the next few hours, the testwas repeated twice, with borderline and abnormal results,respectively. A Cesarean section was performed in the earlyevening because the fetal status was not reassuring.

In this case, causation was particularly difficult, giventhe apparent twin discordancy from weeks previously, thedecreased fetal movement and non-reactive/non-reassuringfetal heart tones during the morning office visit, and the poorvariability of the fetal heart tones upon hospital admission.However, Plaintiff’s counsel successfully proved that themother should have been seen promptly in the hospital that


morning for bedside ultrasound biophysical profile, ratherthan awaiting availability in the antenatal testing unit. Theinitial abnormal results, combined with the possible twin dis-cordancy, the maternal complaints of decreased fetal move-ment and the non-reactive NST with non-reassuring pattern,should have prompted earlier Cesarean section.

Plaintiff’s counsel use of focus groups and mini-mocktrials during discovery here, helped to highlight these difficultcausation questions. As a result, Counsel was able to settlethis case for $1,000,050.

Plaintiff was represented by Russell Gregory ofBloomfield Hills.

Remise Ullius v Eisuke Narita and MasaakiNaritaWashentaw County Circuit CourtHon. Melinda Morris

In this automobile negligence claim, extensive and ef-fective discovery highlighted Defendant’s fabrications andhelped Plaintiff obtain a significant settlement for her pain andsuffering.

On January 15, 2004 at 8:30 a.m., Plaintiff Remise Ullius(age 24) was walking in the road along the curbed edge ofHuron River Drive in Ypsilanti, Michigan, as there were nosidewalks in the immediate area and 6 inches of fresh snow-covered the ground. She had walked along the edge of theroadway for more than four-tenths of a mile without anyproblem.

Defendant Eisuke Narita was late for his class at EasternMichigan University and he was driving too fast for the snowcovered conditions of the roadway. Even before he reachedthe area where Plaintiff Remise Ullius was walking, Defendantlost control of his vehicle. The physical evidence, witnessstatements, photographs and accident reconstructionist, Dr.Daniel Lee, all establish that Defendant Eisuke Narita wasdriving near, or in excess, of the 45 mile-per-hour posted limiton the snow covered roads as he started to descend a hill andcurve. As Defendant lost control of his vehicle, it slid to hisright, bounced off the curb several times, and the right fronttire went over the curb, just missing a road sign. It was afterDefendant’s vehicle went over the curb that he struck thePlaintiff. His car then spun in a counter-clockwise directionand came to rest in the roadway, facing the wrong way. Dueto Defendant’s excessive speed, Plaintiff was thrown onto thewindshield on impact and then up over Defendant’s car.

Although he claimed in his deposition that he was notlate for class and that his 8:00 a.m. class had been canceled onthe day of the crash, Plaintiff’s attorney was able to locate theprofessor of the Defendant’s class. Plaintiff’s attorney ob-tained a statement from the professor that the class was notcanceled and that Defendant had told his professor that hemissed the class because he was involved in an accident.

At his deposition, the Defendant also claimed that hisvehicle had not been involved in any other incidents and hisbrakes were in good working order. Plaintiff’s attorney sub-poenaed past repair records regarding the Defendant’s ve-hicle and obtained an Affidavit from a mechanic who hadworked on the Defendants’ vehicle which showed that onemonth before the crash, the Defendant’s car was serviced for

hitting a curb. Defendant was told at that time that his brakesneeded to be relined and machined because of poor braking,but the Defendant declined to have the work done.

As a result of Defendant Eisuke Narita’s negligence,Plaintiff Remise Ullius suffered serious fractures of the tibiaand fibula, that were surgically repaired. She had to undergoa second surgery for hardware removal. She had been out ofwork for a significant period of time and had significantresiduals.

A lawsuit was filed against the driver, Eisuke Narita,and the owner of the car, Masaaki Narita, for non-economicdamages.

Defendants argued that Defendant driver was not neg-ligent and that the snow-covered road caused a sudden emer-gency. Defendants also claimed that the Plaintiff was morethan 50% comparatively negligent for walking in the roadwayin the same direction as traffic. Plaintiff argued that it was notpractical for her to walk in the direction of oncoming traffic,because that would have placed her on the inside curve in thearea of a hill, which would have placed her at great risk. Eventhough she was walking on the edge of the roadway withtraffic, this did not violate any statute, law or ordinance.Plaintiff testified that she was looking back for traffic as shewas taking the most direct route to her employment atMcDonalds.

Plaintiff’s attorney retained Dr. Daniel Lee, a highlyqualified accident reconstructionist expert, who testified thatthe Defendant was driving too fast for conditions and that hewould have had adequate sight distance to observe andavoid the Plaintiff if his speed had been reduced. Dr. Lee alsotestified that based on the physical evidence, the Plaintiff wasat the very edge of the roadway when Defendant struck herbecause Defendant’s car jumped the curb several feet beforeactually striking the Plaintiff.

Two insurance doctors found that Plaintiff’s fractureshad healed and that there were no current objective signs ofinjury.

The case settled for the sum of $210,000 (all non-eco-nomic damages), which was the Case Evaluation recommen-dation. Plaintiff’s attorney was also able to obtain payment ofeconomic losses of approximately $175,000 through othersources.

Plaintiff’s experts were Dr. Daniel Lee, Ph.D., accidentreconstruction expert, Lansing, and Dennis Kahlbaum, Me-

PLASTIC MACHINERY EXPERT

Over 25 years experience operating,building, servicing and guarding of blowmolding, injec-

tion molding and extrusion equipment.Ten years as corporate testifying expert,

fifteen years as independent.R. E. Ridenour Technical Consultant

3119 Overlook CourtSaline, Michigan 48176

734 429 [email protected]


LAWSUIT FINANCIALCORPORATION

WE FUND PERSONALINJURY ATTORNEYS

AND THEIR CLIENTS’ NEEDS!

We Fund Plaintiffs’Need For Cash

Expert Witness ExpensesAdvances on Judgments

877-377-SUITCAPITAL NOW!

IF YOUR PRACTICE HASA NEED FOR CAPITAL

AND CASES WAITING FOR PAYMENT,OR IF YOU HAVE PLAINTIFFS

WITH PERSONAL INJURYOR COMMERCIAL CASES

WHO NEED CASH TO MEET LIFE’SNECESSITIES, FEEL FREE TO CALL US

FOR AN EVALUATION TODAY!

LAWSUIT FINANCIAL CORPORATION29777 TELEGRAPH ROAD

SUITE 1310SOUTHFIELD, MI 48034

877-377-SUIT (7848)

CALL TODAY!

We make the impossible . . . possible.

Tip the Scales of Justice in Your Client’s Favor.

teorologist, Ann Arbor.Plaintiff was represented by Michael Garris of Ann

Arbor.

Willard Christopher Long and Lisa Long v.Polaris Sales IncKalkaska County Circuit CourtHon. Dennis Murphy

In this case, due to Defendant’s prior knowledge of anegregious product defect, Plaintiff’s counsel convinced theDefendant to waive the cap on non-economic damages, with-out having to actually prove “gross negligence” (or any otherexception to the cap).

Plaintiff, Willard Christopher Long, was riding a fairlynew Polaris jet ski on Bear Lake in Kalkaska County. Due to adefect in the hood mechanism, the hood came off at about 30m.p.h., shattering his face. He was airlifted to Saginaw wherehis face was repaired by the insertion of multiple plates andscrews. He returned home after 11 days in the hospital to finda recall notice dated the day after his injuries. The recallnotice stated that the hood could detach causing death orserious injury. After initial discovery Polaris admitted liabil-ity.

Plaintiff argued that his injuries were permanent andrequired significant future treatment and medication and re-sulted in a reduction of future earning capacity. At trial,Plaintiff presented the testimony of five treating physicianslive to support the nature of the injuries. In response, Polarisargued that plaintiff had not done enough to get better andthat his earning capacity and other economic damage claimswere unrealistic. However, Plaintiff retained Dr. Robert Ancell,a vocational rehabilitation expert from Southfield, and Profes-sor Calvin Hoerneman, an economist from Midland, to testifyregarding Plaintiff’s inability to work given his injuries andhis expected wage loss.

The jury returned a verdict of $3.4 million before reduc-tion to present value. The Judgment was entered for $2.6million dollars pursuant to a high/low agreement.

Plaintiffs were represented by Blake Ringsmuth ofTraverse City.

Ronald Silberstein v Pro-Golf of America, Inc.,Pro-Golf International Inc., Pro-Golfcom, Inc andAjay Sports, Inc.Oakland County Circuit CourtHon. Charles Simon (visiting Judge)

In this case, the Court ruled that a public policy dis-charge claim can be founded upon demands to violate gener-ally accepted accounting principles if those violations alsowould violate SEC or FTC rules and regulations.

Plaintiff, a Certified Professional Accountant, was theChief Financial Officer and Chief Administrative Officer of thecorporate Defendants. In late 2002, Defendant’s Chairman/CEO had his $2 million lakefront home foreclosed. In late2003, Plaintiff was allegedly put under immense pressure bythe Chairman/CEO to falsify three key accounting entries.Plaintiff alleged that the chairman/CEO wanted to fraudu-


Future Solutions Now

Life Care Planning Critique of Opposing Counsel’s Life Care Plans

Legal Nurse Consulting Medicare Set-Aside Allocations Nurse Expert Witness Locators

Advanced Practice Consulting 128 South Bridge Street

DeWitt, MI 48820 Phone: 888-448-4482 Fax: 517-669-1127

E-mail: [email protected] www.advancedpracticeconsulting.com

lently inflate the financial worth of one of the corporateDefendants in order to attract monies from outside investorsand potential franchisees needed to pay down an approxi-mately $6.5 million loan. Once corporate defendant was pub-licly traded, any materially fraudulent accounting would havedirectly violated federal securities and trade commission rulesand regulations. Plaintiff was terminated just weeks after herefused to follow Defendants’ directives.

Plaintiff alleged a claim for wrongful discharge in viola-tion of public policy, based upon his failure or refusal toviolate the law in the course of his employment. Plaintiffaccepted a case evaluation award of $75,000, and Defendantrejected. Despite both private and court ordered facilitations,Defendants refused to make any offer to settle the case.

An unanimous Oakland County jury awarded Plaintiff$700,000 in wages and benefits, and $150,000 in mental an-guish. They key to winning, Plaintiff’s counsel said, wasextensive preparation to cross-examine Defendants’ CEO,and impeachment with both prior deposition and trial testi-mony. Plaintiff’s counsel also called and relied on Defen-dants’ own expert CPA witness to support Plaintiff’s claimthat Defendants’ accounting schemes were improper. An-other key was using Defendants’ claim of alleged downsizingagainst them. Plaintiff constructed a timeline chart showingthat, while Defendant’s revenues had, in fact, decreased byover 50% over a nine year period, Plaintiff’s job duties hadrepeatedly expanded and that Plaintiff was actually fired dur-

ing a “resurgence” as represented by Defendants in their owndocuments to investors and franchisees.

Plaintiff’s expert was Robert Henkels, CPA, of BethelPark, Pennsylvania.

Plaintiff was represented by E. Michael Morris andGouri G. Sashital of Birmingham.

Fred Procida and Dana Robert, personalrepresentatives of the Estate of MikaylaProcida, deceased v Richard Dippel, PamelaDippel and DM Real Estate Investment, L.L.C.Macomb County Circuit CourtHon. Kenneth Sanborn

In this wrongful death action, Plaintiff’s counsel wenton to obtain a verdict of 3 times the policy limits, when Auto-Owners, the Defendants’ carrier, refused to offer more thanone-tenth of the policy.

Mikayla Procida was born on March 19, 2003 to DanaRobert and Fred Procida. Plaintiffs and their family lived in arented home that contained a double hung window joiningtwo sleeping areas. In May 2005, one of the window paneswas broken when Plaintiffs’ sons were wrestling. On July 12,2005, Mikayla Procida, age two, attempted to crawl over thebottom sash of the window and, in doing so, pulled the topsash down onto her neck. Mikayla died of slow asphyxiation.


In early March 2005, Defendants Richard Dippel andPamela Dippel had purchased the home being rented by theProcidas from Pamela Marbach. Defendant Richard Dippeland Defendant DM Real Estate Investment, L.L.C., Dippel’scompany, acted as landlords for the property.

Fred and Dana both testified in trial that, before andafter Richard Dippel purchased the home, they requested onnumerous occasions that Dippel remove or repair the unsafewindow that connected the kids’ rooms. The window becamean even bigger concern to Fred and Dana when one of thewindow panes was broken.

Defendant Richard Dippel acknowledged that Fred andDana asked him to remove the window. He claimed, however,that he paid Fred $300 to remove the window. DefendantDippel could not produce a receipt for this transaction or anywriting authorizing said repair, which was required by thelease agreement. Plaintiffs denied ever receiving any moneyfor removing the window or ever being asked to remove itthemselves.

Defendant Richard Dippel’s contradictory testimonyclaimed that he was “tight on cash” and there was no moneyfor repairs. Pamela Marbach, the previous owner, testifiedthat she provided Defendant Richard Dippel with a $2,400rebate at closing which was to be earmarked for repairs.Defendant Dippel denied receiving any money for repairsfrom Marbach. Dippel did admit, however, that he never madea single repair to the home.

The key to proving Plaintiff’s case was explaining tothe jury that Defendant Richard Dippel, as landlord, had anon-delegable to duty to make repairs to the home. Further,Plaintiff’s counsel presented evidence that the home wasriddled with safety defects, none of which were repaired byDefendant Dippel. This established a pattern of neglect bythe landlord. Moreover, Plaintiff’s counsel introduced bankand mortgage records which showed that Defendants hadpurchased the home for zero down which illustratedDefendant’s reluctance to spend any out-of-pocket moneyon the home.

Defendants claimed that Fred Procida was a handymanand should have removed the window on his own accord.Defense Counsel also focused on the fact that Fred Procidahad a criminal records including an insurance fraud plea in1998. Additionally, defense counsel attempted to paint Plain-tiffs Fred and Dana as drug abusers by claiming that mari-juana was found in the home. The jury found no credence inthese personal attacks and discounted the criminal historyand marijuana issue.

The case evaluation was $500,000, the full policy limits.Plaintiffs accepted and Defendants rejected. Defendants’last offer on the day of trial was $50,000.

Plaintiff’s experts included: Daniel Spitz, M.D., forensicpathologist, Larry Friedberg, Ph.D., child psychologist, Rob-ert Erard Ph.,D., psychologist, Michael Thomson, Ph.D.,economist, and Ronald Tyson, liability expert.

The jury returned a verdict in this case of $1,625,000which was 3 times the policy limit and the case evaluation.

Plaintiffs were represented by Walid Y. Fakhoury andAndrew S. Khurana of Royal Oak.

Paris McCurdy v Travelers Insurance CompanyWayne County Circuit CourtHon. Wendy M. Baxter

In this No-Fault case, Plaintiff’s counsel used a VerdictForm that set forth simple definitions for allowable expensesand other key No-Fault terms to prevent Juror confusion atthe critical time of deliberations. Using that Form, the Juryreturned a verdict for the amounts requested.

In this PIP case, the Defendant, Travelers InsuranceCompany, refused to pay any further PIP benefits following adefense medical evaluation by Dr. Obianwu. In opposition toDr. Obianwu, the Plaintiff presented the testimony of treatingphysicians, Dr. Laren Lerner, a physiatrist of Southfield, Dr.Ray Hillenbrand, a chiropractor of Oak Park and Dr. A. Bovier,an internist of Oakland.

At trial, the Plaintiff requested $95,000 in wage lossbenefits and $6,300 in medical benefits. The Defendant’shighest offer was only $15,000 in the form of an Offer ofJudgment after a non-unanimous case evaluation of $20,000.

For deliberations, Plaintiff’s counsel used a VerdictForm that defined critical No-Fault terms, including “allow-able expenses,” “work loss,” and “overdue” expenses/losses,to aid the Jury in reaching its decision on the amounts to beawarded. Following deliberations, the Jury announced anaward that granted Plaintiff the benefits that she requested:specifically, the verdict was for $95,588 in wage loss, $6,320.45in medical benefits, and $10,224 in penalty interest.

Plaintiff was represented by Cynthia A. Husarchik ofSouthfield.

Ronald Stebbeds and Mary Stebbeds v RuthJackson and James JacksonOakland County Circuit CourtHon. Nanci Grant

In this negligence claim involving an automobile-mo-torcycle collision, Plaintiff obtained a settlement in excess ofpolicy limits on the morning of trial.

The defendant, Ruth Jackson, is an elderly woman whomade a left hand turn directly in front of Plaintiff’s motorcycle.He injured his neck and an MRI of his neck revealed a coupleof herniated discs. Plaintiff also hurt his back and had aprotruding disc in his low back with no impingement and anegative EMG. However, the doctors opined that these con-ditions were present before the accident and had been causedby his physical, labor-intensive, job. The best testimony fromthe treating doctor was that Plaintiff became symptomaticafter the crash. His treating doctor, Dr. Asit Ray, took him offwork as a result.

Plaintiff filed this claim for excess wage loss. ExpertEconomist, Michael Grant, of Southfield, documented thePlaintiff’s economic claim. The case evaluation was $40,000,which both Plaintiff and Defendant rejected.

Plaintiff’s attorney demanded policy limits. Only daysbefore trial, the Defendant offered policy limits after receivinga bad-faith-letter. At that point, however, the Plaintiff re-jected policy limits and the case proceeded to trial. When thejury pool was brought in the Defendant agreed to settle for


$15,000 over policy limits for a total of $65,000. Defendantindividually came out of pocket $15,000.

Plaintiff was represented by Jason Waechter ofSouthfield

Mohamad Farhat et al. v Brian Howard Cohen,DDSWayne County Circuit CourtHon. Gershwin A. Drain

In this dental malpractice case, the Plaintiff obtained amediated settlement by establishing the failure of the defen-dant dentist to follow up signs that would have led to adiagnosis of cancer.

In this case a board certified oral surgeon failed totimely diagnose oral squamous cell carcinoma invading his73-year-old male patient who had been without teeth for manyyears. Plaintiff’s general dentist referred his patient to theDefendant specialist because of lower right jaw discomfort,inability to wear dentures and sores in the lower right jaw.Defendant oral surgeon incorrectly diagnosed that this pa-tient simply required an alveolorplasty of the lower right side,i.e., surgical contouring of the alveolar ridges for comfortabledenture wear. Defendant further ineptly charted a “healingulcer”. No biopsy was performed or recommended becauseDefendant negligently failed to suspect cancer. The lowerjaw lesions continued throughout four more treatments fromFebruary, March through May 2004. No biopsy was everdone. On May 12, 2004, Plaintiff sought another opinion fromthe University of Michigan where an immediate biopsy wasperformed and cancer was confirmed and followed by exci-sion surgery. Unfortunately, this was too little, too late, sincethe cancer had metastisized, dooming Plaintiff. Plaintiff diedon June 23, 2005.

The case was mediated for $180,000. Both parties ac-cepted, and therefore, the case was settled.

Plaintiff was represented by Robert Gittleman ofSouthfield.

Edna Painter as personal representative of theEstate of Evelyn SuttenSettled presuit

Plaintiff’s counsel resolved this wrongful death casepre-suit through the use of an extensive case settlement

brochure and a facilitation.Plaintiff’s decedent, Evelyn Sutten, then age 83, was

riding as a belted passenger in a car driven by her son,Herbert Sutten. They were on their way to a family dinner atthe home of Evelyn’s granddaughter, up near Lake Isabella.Unfortunately, Evelyn Sutten never made it to the dinner.Instead, she was terrified, and then critically injured, by aplane that crashed headlong into the car. The plane, whichwas being piloted by a student, had overshot the runway ona practice landing and struck the car in which Plaintiff wasriding. At impact, Evelyn’s belt released and her face smashedinto the dashboard, with enough force to shatter her teeth.

Injuries included multiple fractures of the bones inPlaintiff’s face, for which she underwent surgery and a closedhead injury. Plaintiff’s condition deteriorated consistentlyand within 3 months, she died.

Plaintiff contended that her death was a direct result ofthe crash. The Defendant contended that the Plaintiff died ofold age and/or from pre-existing medical conditions.

Plaintiff’s counsel obtained a number of statementsfrom family and friends that confirmed that Plaintiff had beenactive and alert immediately before the accident and that hercondition was never the same again. Further, family photoscorroborated Plaintiff’s position. All of these statements andphotographs were included in an extensive settlement bro-chure prepared by Plaintiff’s counsel.

Eleven members of Plaintiff’s family attended the facili-tation. The parties agreed to resolve the matter for $350,000.

Plaintiff was represented by Debra A. Freid of Saginaw.

Patrick Griesbach, a minor, by his Next Friend,Sara Griesbach; and Sara Griesbach and TimothyGriesbach, individually v Robert R. Ross, PA-COakland County Circuit CourtHon. Denise Langford-Morris

In this medical malpractice case, Plaintiff’s counseltripled the case evaluation by demonstrating that the Defen-dant Physician’s Assistant failed to timely diagnose acuteosteomyelitis in this teenage boy.

Patrick Griesbach, then age 14, sought treatment fromthe Defendant, Robert Ross, PA-C, because he was experi-encing complaints of pain in his leg.

Despite clear signs of a serious health issue, Defendantfailed to order any tests to ascertain the cause of the pain.Even after several visits, defendant failed to refer Patrick tothe hospital for evaluation and failed to communicate with hissupervising physician regarding Patrick’s ongoing leg pain.Patrick was ultimately diagnosed with acute osteomyelitis ofhis hip, a bone infection which, if diagnosed and treatedpromptly, can be fully resolved without residuals. Unfortu-nately, because of the Defendant’s delayed diagnosis, theosteomyelitis spread to Plaintiff’s hip joint, destroying thehip and requiring multiple surgeries and an eventual hipfusion. Even more surgeries will be necessary in the future toreplace the hip joint.

The Plaintiff sued Robert Ross, PA-C, for his malprac-tice in failing to make the diagnosis in a timely fashion. Thecase mediated for $300,000 which Plaintiff accepted and De-

SupportJUSTICE PAC!

Call Susan at 517.321.3073 Today!


fendant rejected. In fact, ProNational (carrier for the Defen-dant) refused to make any settlement offers.

At trial, Plaintiff presented the testimony of LeslieWiscomb, D.O., an expert in family practice from Kansas Cityand William Hovey, PA-C, of Livonia for the standard of care.Plaintiff also presented the testimony of Dr. Ira Zaltz, M.D,Plaintiff’s subsequent treating orthopedic surgeon. Dr. Zaltzconfirmed ’s Plaintiff’s theory that Patrick suffered significantand lasting damage because of the Defendant’s delay inmaking the diagnosis. Patrick and his mother testified that hespent months in the hospital with the 14 different surgeries,all painful and all debilitating. They explained to the Jury thatPatrick missed so much school, he had to be home schooledand that he could no longer play his favorite sport, soccer –all because this Defendant told Patrick and his mother thatPatrick should “take 2 aspirins and call me in the moring.”

After hearing all the evidence, the jury returned a ver-dict of $994,201.79 which included both economic and non-economic damages.

Plaintiffs were represented by Paul Hines of Southfield.

Jeffrey Ross v Parkside Management L.L.C. d/b/aParkside AssociatesWashtenaw County Circuit CourtHon. Timothy P. Connors

Plaintiff’s counsel recovered more than 4 times the caseevaluation in this case despite the court’s finding that thedefective condition was “open and obvious.”

On December 29, 2002, the Plaintiff was working for

I support JUSTICE PAC’s fight toimprove Michigan Tort Law!Here’s my contribution to “MTLA JUSTICE PAC”:

___$100 ___$250 ___$500 ___$1000 $__________More

Sign me up as a Monthly Contributor for: ___$50 mo. ___$100 mo. ___$200 mo. ___$300 mo.

PERSONAL FUNDS ONLYState law prohibits corporate checks or accounts. Contributions are not tax deductible.

Name____________________________________________________________ (please print)Street____________________________________________________________

City/State/ZIP______________________________________________________

Payment method: __ credit card __invoice monthly __check enclosed

___VISA ___MC ___AmExpress Exp. date___________

CC #____________________________________________________________

Signature/Date_____________________________________________________

Please sign & return to: MTLA JUSTICE PAC, 504 S CREYTS RD STE B, LANSING MI 48917

Guardian Security servicing an ATM on Defendant’s pre-mises, when he slipped on ice that was covered by snow.Plaintiff herniated the L5-S1 disc and had to undergo 2 surger-ies as a result. As a result of these injuries, the plaintiff wasoff work for almost 2 years and was left with residuals of backpain that precluded his return to his former type of work.

Upon a motion by the defense, the Court ruled that thecondition of ice under snow was “open and obvious,” butPlaintiff’s counsel was able to convince the Court that a factquestion remained regarding whether or not “special aspects”existed. As a result, that question was submitted to the juryalong with evidence that the entire parking lot was snowcovered. The jury found that the condition was unavoidableand gave rise to an unreasonably high risk of severe harm.

The jury was particularly swayed by the fact that thedefendant did not produce records to document that anyaction had been taken to attempt to remove the snow or ice aswell as the fact that the Plaintiff had to service the ATM onthat snow-covered property on the day of the injury, despitethe unsafe conditions, or risk losing his job.

The case had been evaluated for $75,000 which thePlaintiff accepted and the Defendant rejected. However, theJury returned a verdict of more than 4 times that amount, at$330,182.

Plaintiff’s experts included: Dr. Glenn Minster, treatingorthopedic surgeon of Detroit; Dr. John Traylor, treating painmedicine specialist, and Dr. Michael Sytniak, treating painpsychologist, both of Southfield.

Plaintiff was represented by Ronald Applebaum ofSouthfield.



Full Case Name:

Case Number:

Judge:

Court:

Verdict/Settlement Amount:

May we forward this information to the ATLA Exchange?

Significant Legal Issue or Holding:

Liability Facts:

Injury Facts:

Plaintiff Experts: (Name/Address/Phone)

Case Evaluation Amount/Results:

Verdicts & Settlements Reporting FormDear MTLA Member:If you’d like to have a recent case of yours published in an upcoming Verdicts & Settlements article, please completethis form and mail to:

Debra Freid, Verdicts & Settlements EditorMTLA504 S Creyts Rd, Ste. BLansing, MI 48917-8230

NOTE: The Editors rely on contributing attorneys to obtain client’s permission for publication.

Type of Case: Medical Malpractice Professional Negligence

Criminal No-Fault Workers' Compensation

Construction Premises Other

Employment Discrimination Products

Comments:

May we list your Plaintiff’s expert(s) in the MTLA Expert Witness Bank?

Submitted By: Plaintiff Attorney Address City/State/ZIP Phone


PresortedStandard

US PostagePaid

Lansing, MIPermit #797

Michigan Trial Lawyers Association504 South Creyts Road, Suite BLansing, MI 48917-8230

“Michigan’s Leading Settlement Video Firm”

Economic

B. Michael Grant

ExpertCPA

B. Michael Grant, CPA

is an independent and objective

Economic Expert

qualified in Federal and Michigan

Courts for plaintiff and defense

attorneys for over 14 years.

Licensed in Michigan and Florida.

♦ Loss of Wages and Benefits

♦ Business Valuations

♦ Present Value Calculations

♦ Divorce Actions

♦ Court Testimony

♦ CPA Malpractice

♦ Structured Settlements

♦ Loss of Services

♦ Value of a Homemaker

♦ Pension Valuations

♦ Hedonic Damages

♦ Lost Profits 28831 Telegraph Road, Southfield, MI 48034(248) 355-4479 FAX:(248) 358-0690

• FREE TRAVEL up to 600 MILES• Taped Deposition: S-VHS, VHS and BetaCam SP• Day-In-The-Life / Loss-of Life Videos• Court Playback - 8 ft. Projection Screen or 3- Monitors• Local Re-enactments - Accident / Injury• Video Wills and Prenuptial Agreements• Settlement Video• Video Editing and Duplication• Exclusive VideoPhotos : Laser prints from video• Custom Labeling and Packaging

28831 Telegraph Rd., Southfield, MI 48034

CALL: (248) 358-4336 FAX: (248) 358-0690www.actionvideo.tv

Day-In-The-Life & Loss-Of-Life

Innovative, effective and high impact...these are the hallmarks of Action Video-produced Day-In-The-Life and Loss-Of-Life Litigation videos. The style isunique, the quality unrivalled. Just askone of the successful attorneys who callAction Video & Imaging: the “pioneersin visual evidence.”For a private screening of these powerful

true-life depictions including quadriplegics, amputees, burn victims,birth traumas, closed-head and other catastrophic injuries please callBarry Grant at (248) 358-4336.

COMPLETE VIDEOTAPE SERVICES

See the PAIN...Hear the PAIN...Feel the PAIN!VIDEOVIDEO

Action Video & Imaging, inc.

Think Video. Think Imaging. Take Action!

Documents

MTLA’s 62nd Annual Convention “Too Legit To Quit”€¦ · Page 4 MTLA Journal Summer 2007 Jonathan Abrahams, Farmington Hills Michael Behm, Flint & Tom Waun, Grand Blanc Mark