ICHIGAN LAWYERS WEEKLY Verdicts & Settlements

[Pages:24]2011 Million-Dollar MICHIGAN

LAWYERS WEEKLY

Verdicts & Settlements

LARGEST VERDICTS

Ponzi schemes targeting Arab-Americans, claims of brain damage and cerebral palsy from childbirth among top verdicts. page B2

LARGEST SETTLEMENTS

Birth-trauma/medicalmalpractice, negligence in truck-hauling accident, seaman's fractured wrists on this year's list. page B10

CLASS ACTIONS

Exotic dancers say they were misclassified as independent contractors instead of employees. page B23

ABOUT THIS SECTION

This section includes verdicts and settlements of $1 million or more obtained in a Michigan court in 2011 that were reported to Michigan Lawyers Weekly and verified on or before Dec. 22, 2011.

We would like to thank the attorneys who submitted their reports to Lawyers Weekly throughout 2011. While many of these reports were published in the "Verdicts & Settlements" section of the newspaper, others appear in this section for the first time.

Lawyers Weekly acknowledges that there have been other verdicts and settlements of $1 million-plus reached in 2011. This section, however, includes only those verdicts and settlements properly reported to us and verified by deadline.

If you have any questions, please contact Douglas J. Levy at (248) 865-3107 or douglas.levy@mi..

Verdicts value surges to 85%, settlements dip 14%

By Douglas J. Levy

The values of submitted verdicts and settlements in the 2011 edition of Michigan Lawyers Weekly's "Million-Dollar Verdicts & Settlements" did a noticeable flip-flop from the prior year.

There was only a 3 percent increase in the number of million dollar-plus reports submitted and/or reported upon in 2011 --67, compared to 2010's 65 -- and there was a sole class-action suit, compared to two in 2010.

But the 26 verdict awards in 2011 totaled more than $376 million -- a difference of 85 percent over the nearly $56 million among 2010's 18 verdicts.

It should be noted that the two top verdicts

-- $172.2 million and $144 million -- were in the nine-figure range, while 2010's verdicts had no awards breaking seven figures. However, had 2011's top two verdicts not been included, the 2010 and 2011 figures would have been similar, save for a $4 million difference.

The monetary total of the 40 settlements for 2011 was $108 million, which is a 14 percent decrease from the $125 million-plus figure posted from 2010's 45 reports.

The No. 1 verdict was a $172.2 million default judgment granted to approximately 200 plaintiffs, who claimed RICO, fraud and breach of contract following two interconnected Ponzi schemes targeting Arab-Americans. That award was trebled from the aggregate amount of $57.4 million, per Judge David M. Lawson of the U.S. District Court

for the Eastern District of Michigan. In second place was a $144 million jury

award in a medical-malpractice/birth-injury lawsuit, where the 15-year-old plaintiff sought damages from brain damage and cerebral palsy that counsel asserted was the result of a traumatic delivery.

And in the No. 3 spot was a $12.5 million jury verdict in a civil case, where the conservator of plaintiff's minor asserted that an ambulance company was responsible for negligent supervision, negligent training and failure to protect patient following a sexual assault.

Three of the four top settlements -- all of which were in the $6 million range -- were birth-trauma/medical-malpractice causes of action, while the fourth was a negligence

claim for injuries sustained in a truck-hauling accident.

In the only class-action suit for 2011, a class of exotic dancers claimed to be misclassified as independent contractors instead of employees, thus violating the Fair Labor Standards Act. The $11.3 million settlement was an 8 percent decrease from the top classaction suit of 2010, which was $12.3 million.

The top national verdicts of 2011 -- as compiled by Lawyers USA -- will be reported in an upcoming edition. Lawyers USA, like Michigan Lawyers Weekly, is a Dolan Company newspaper.

If you would like to comment on this story, please contact Douglas J. Levy at (248) 8653107 or douglas.levy@mi..

B2 ? Michigan Lawyers Weekly

January 9, 2012

Cite 26 Mich.L.W. 234

LARGEST VERDICTS

#1

Investors seek damages after Arab-American Ponzi scheme collapses

Default judgment granted for 200-plus plaintiffs as defendant refuses to appear in federal court

$172.2 million

In a RICO, fraud and breach-of-

contract lawsuit filed in U.S. Dis-

trict Court for the Eastern District

of Michigan, a collective of approxi-

mately 200 similarly situated plain-

tiffs sought compensatory damages

-- to be trebled under RICO -- from

defendants Ahmed Alabadi and Ab-

dzhra Shalushi, among others, asserting financial loss stemming

HONIGMAN

from two interconnected Ponzi

schemes targeting Arab-Americans.

Plaintiffs asserted that Alabadi,

considered the top mastermind and

wealthiest of the Ponzi schemers,

and Shalushi operated the schemes

via alleged shell companies, Fatima

International, Adam Trade Group

and Fedek Group. Shalushi ran a

scheme from 2006-08, and Alabadi's

MANTESE

ran from 1998-2008. It was argued

that defendants recruited other individuals, called

"agents," to fraudulently obtain investments from the

victims, almost all of whom were Arab-American.

According to the complaint, plaintiffs contended that

defendants "exploited cultural taboos forbidding dishon-

esty and financial self-dealing with tribal brothers and

sisters to dupe thousands of Iraqi-Americans into in-

vesting in Iraqi and Middle-Eastern projects." The law-

suit also alleged that the "investments" were fraudulent

and that the defendants used the money to pay them-

selves or earlier investors.

Plaintiffs engaged in substantial discovery, including mul-

tiple depositions revealing defendants' fraudulent scheme.

Many defendants did not provide discovery, but plaintiffs

demonstrated the criminal enterprise and damages in the

tens of millions of dollars through a detailed process of dep-

ositions, victim affidavits, translated receipts and interviews.

Defendant Alabadi contended his refusal to appear

stemmed from threats made on his life, despite counsel of-

fering to have his deposition taken at the federal courthouse,

where he would be under the protection of U.S. marshals.

As a result, plaintiffs moved for default judgment, as-

serting that Alabadi's conduct was sufficient to warrant

a default judgment without any lesser sanction. Default judgment was granted against defendants, jointly and severally, in the aggregate amount of $57.4 million, and treble damages under RICO were granted, making the total judgment $172.2 million.

Types of actions: RICO, fraud, breach of contract

Type of injuries: Lost investment

Name of case: Abass, et al. v. Shalushi, et al.

Court/Case no./Date: U.S. District Court, Eastern District of Michigan; 10-CV-11837; Nov. 10, 2011

Tried before: Judge

Name of judge: David M. Lawson

Judgment amount: $172.2 million

Most helpful expert: Jesse A. Ultz, forensic accountant, Southfield

Attorneys for plaintiff: David M. Honigman, Gerard Mantese, David Hansma

Attorney for defendants: Ronald A. Ferrebee

Status: Defendant Alabadi has filed a motion to set aside judgment; hearing set for March 2012.

#2

Cause of 15-year-old's

disability is disputed

Cerebral palsy due to defendants, not genetic disorder, plaintiff claims

$144 million

In a medical-malpractice lawsuit

filed in Oakland County Circuit

Court, plaintiff Markell VanSlem-

brouck sought compensatory dam-

ages from defendants Dr. Andrew

Jay Halperin and William Beau-

mont Hospital for injuries sustained

during birth.

Markell, now 15, was born after more than 16 hours of labor and two

FIEGER

hours of pushing during the final stage of labor. She was

a large baby at 10 pounds, 12 ounces, and the hospital

administered Pitocin to her mother, despite indications

that the baby would be large which could indicate C-sec-

tion delivery.

The mother had devloped gestational diabetes, which,

plaintiff asserted, is known to be associated with large

babies, and had gained 70 pounds during her pregnancy.

The labor was traumatic, and baby was born with signif-

icant bruising, a broken clavicle and brain hemorrhaging,

and she wasn't breathing. She spent three weeks in in-

tensive care following her birth

Plaintiff asserted that she is left with brain damage

and cerebral palsy, making it impossible for her to ever care for herself.

Defense contended that plaintiff suffers from a genetic disorder, not birth trauma.

The jury found for the plaintiff and awarded her $144 million.

Types of action: Medical malpractice, birth injury

Type of injuries: Brain damage, cerebral palsy

Name of case: VanSlembrouck v. Halperin, et al.

Court/Case no./Date: Oakland County Circuit Court; 06-074585-NH; Oct. 18, 2011

Tried before: Jury

Name of judge: Rudy J. Nichols

Verdict amount: $144 million

Attorneys for plaintiff: Geoffrey N. Fieger, Jack Beam, Douglas J. Raymond (Beam & Raymond Associates, Lafayette, Colo.)

Attorneys for defendant: Joseph F. Babiarz Jr., D. Jennifer Andreou

Status: Appeal filed.

#3

Ambulance company says it wasn't liable for sexual assault of minor

Plaintiff: Safety was compromised, follow-up investigation substandard

$12.5 million

In a lawsuit filed in Wayne Coun-

ty Circuit Court, plaintiff John Doe,

conservator of plaintiff's minor Jane

Doe, sought compensatory damages

from defendants Superior Ambu-

lance Service, Inc., Matt DeFillippo

and Tim O'Connell on claims of neg-

ligent supervision, negligent train-

ing and failure to protect patient following sexual assault of a minor.

FIEGER

Around 2 a.m. July 25, 2006, plaintiff's minor, who

had psychological and behavioral problems, was being

transferred via a Superior ambulance from Henry Ford

Hospital in Brownstown Township to Harbor Oaks Hos-

pital, a children's psychiatric facility in New Baltimore,

after cutting herself numerous times.

As O'Connell drove the vehicle, DeFillippo, the ambu-

lance attendant, turned the light off and sexually assault-

ed, fondled and kissed plaintiff's minor. As the incident

occurred, O'Connell sent text messages to a co-worker

and his supervisor, advising them of DeFillippo's actions.

The day after the incident, Superior began its investi-

5th

Value of the top 5

4th

verdicts in Michigan

2007? 2011

2011

3rd

2010

2009

2nd

2008

2007

1st $0M

$25M

$50M

$75M

$100M

$125M

$150M

$175M

$200M

$225M

$250M

$275M

$300M

Cite 26 Mich.L.W. 235

January 9, 2012

Michigan Lawyers Weekly ? B3

gation, and took O'Connell and DeFillippo to the police. Though DeFillippo denied any wrongdoing, he finally confessed three weeks later, and was convicted for thirdand fourth-degree criminal sexual conduct.

Plaintiff asserted that defendant Superior breached patient's safety and care in its handling of the incident, when it knew or should have known that plaintiff's minor was being assaulted, and failing to protect her. It was further contended that defendant Superior's investigation into the incident was substandard, and that plaintiff's minor, according to a defense consultant, had diagnosed her with post-traumatic stress disorder, thus establishing enduring psychological damage.

Defendant Superior contended it handled the matter appropriately with state police; made sure defendant DeFillippo would not be an EMT after the incident; and that there wasn't any way of knowing DeFillippo had a propensity to do what he did. Further, it was asserted, that because plaintiff 's minor later graduated high school and wasn't going into treatment anymore, she isn't entitled to future damages.

The jury found DeFillippo 70 percent responsible, Superior 30 percent responsible, and O'Connell free of fault, and awarded plaintiff $12.5 million.

Types of actions: Negligent supervision, negligent training, failure to protect patient

Type of injuries: Sexual assault

Name of case: Jane Doe v. Superior Ambulance Service, Inc., et al.

Court/Case no./Date: Wayne County Circuit Court; 11-004894-NO; May 11, 2011

Tried before: Jury

Name of judge: Michael F. Sapala

Verdict amount: $12.5 million

Allocation of fault: 70 percent defendant Matt DeFillippo, 30 percent Superior Ambulance Service

Most helpful experts: Chris Wagner, nurse/EMT/paramedic, Ann Arbor; Dr. Gerald Shiener, forensic psychiatrist, Birmingham; Dr. Barbara Schiff, psychologist, Birmingham; Dr. Robert Ancell, vocational rehabilitation, Southfield; Dr. Michael Thomson, economist, Bloomfield Hills

Attorneys for plaintiff: Geoffrey N. Fieger, William J. McHenry

Attorneys for defendant: Thomas S. Cardelli, Jeffrey H. Lipe, Summer Heil

Status: Will be appealed.

#4

Exposure to hazardous waste causes critical pulmonary injuries

Defendant: Waste was processed properly, landfill should take blame

$4.7 million

In a lawsuit filed in Wayne Coun-

ty Circuit Court, plaintiff Jason

Matteucci sought compensatory

damages from defendant EQ The

Environmental Quality Company

on claims of pulmonary function in-

juries as a result of toxic exposure.

On April 18, 2008, at the Waste

Management Woodland Meadows landfill in Wayne, two Waste Man-

HILBORN

agement employees, including Jason

Matteucci, were pushing toxic and

hazardous loads dumped by EQ.

EQ is a generator of hazardous

waste as defined under the Resource

Conversation and Recovery Act. It

accepts hazardous waste and is re-

quired by law to make the waste

non-hazardous before it can be dis-

posed at a Type II landfill such as

RIDDLE

Woodland Meadows. The load in

question was a new waste stream that EQ accepted from

a company named Air Products. It was the one and only

time that EQ accepted that particular waste stream.

The employees were overcome by the fumes and were

rushed to the hospital. Plaintiff was diagnosed reactive

airways disease, interstitial lung disease, obstructive air-

ways disease, and at least one pulmonary nodule.

Plaintiff asserted that the waste was improperly neu-

tralized, causing it to be reactive and exhibit hazardous

waste characteristics when dumped at the landfill.

Testimony presented at trial demonstrated that de-

fendant did not share its expert report with the Michigan

Department of Environmental Quality, and plaintiff contended that this directly conflicted with the positions taken by EQ with the plaintiff.

Evidence showed that plaintiff was exposed to ammonia gas vapors in the range of 700 parts per million to 2,000 parts per million, well in excess of the 300 parts per million that is immediately dangerous to one's health.

Plaintiff's expert Dr. Ernest Chiodo testified that plaintiff should be pulmonary disabled, while occupational and environmental medicine expert Dr. Michael Harbut testified that plaintiff should no longer work in a landfill because of his pulmonary condition caused by the exposure.

Defendant contended that it was not negligent in the processing of the waste; that the waste was commingled with other waste by non-party Waste Management; that the subject waste did not cause the exposure that resulted in EMS and subsequent diagnoses; and that plaintiff sustained no damages as he returned to work.

In addition, defendant sought an allocation of fault to non-party employer Waste Management.

The jury found for the plaintiff, allocating 100 percent fault to EQ and awarding $4.7 million (to be reduced to present value).

Type of action: Negligence, toxic tort

Type of injuries: Pulmonary function

Name of case: Jason Matteucci v. EQ The Environmental Quality Company

Court/Case no./Date: Wayne County Circuit Court; 08-119374-NO; Sept. 15, 2011

Tried before: Jury

Name of judge: Amy P. Hathaway

Demand: $750,000

Highest offer: $50,000

Verdict amount: $4.7 million

Mediation award: $750,000

Special damages: Future wage loss and medical expenses, fringe benefits, replacement services

Allocation of fault: 100 percent EQ, zero percent non-party Waste Management

Most helpful experts: Dr. Michael Harbut, occupational and environmental medicine, Royal Oak; Dr. Ernest Chiodo, occupational and environmental medicine, Clinton Township; Gary Brugger, civil and environmental engineering, Seattle; David Dalhstrom, certified industrial hygienist, Seattle; Robert Ancell, vocational counselor, Southfield

Insurance carrier: Chartis

Attorneys for plaintiff: Craig E. Hilborn, Kevin C. Riddle

Attorney for defendant: Deborah A. Lujan

Keys to winning: Eyewitness and expert testimony that was not credibily controverted regarding the offending material that caused plaintiff's injury; treating physician's diagnosis and testimony of permanent pulmonary injuries

Status: Appeal expected.

#5

Building-demolition deal for scrap debated

When no work is done, each side says the other breached contract

$3,464,767

In a lawsuit filed in Oakland

County Circuit Court, plaintiff Grand

Sky Enterprise Co., Ltd. sought mon-

etary damages from defendants Fu-

ture Financial Investments, LLC and

Romel Casab on claims of breach of

contract and fraud.

Grand Sky is a foreign corpora-

tion that engages internationally in commodities trading, including

WEINER

scrap metal, plastics and electrical

components. In 2008, the group en-

tered into two separate contracts

with Michigan-based Future Finan-

cial Investments, controlled and op-

erated by defendant Romel Casab.

Each of the contracts concerned

scrap steel resulting from the demo-

lition of industrial buildings situated

on two separate properties. The defendants claimed ownership and

BALIAN

control of the properties, and agreed by the contracts to

the shortterm demolition of the buildings and the sale of

the resultant scrap metal.

Grand Sky prepaid $1.4 million to the defendants, but

the demolition did not take place. Plaintiffs asserted that

defendants continued to promise that it would be done, but it did not, and the prepaid funds were not returned. Defendants denied any liability, and claimed that plaintiff had breached the respective contracts.

Discovery in the forms of interrogatories, depositions and document production was pursued by both plaintiff and defendants. Following close of discovery, plaintiff filed its motion for summary disposition as to liability. Following briefing and oral argument, the court granted the plaintiff's motion, and set the matter for evidentiary hearing/trial on the question of damages.

In its written opinion and order, the court granted judgment in favor of plaintiff in the amount of $3,464,676, plus interest from the date of filing. The components of the adjudged amount -- $3,464,767 -- included return of invested capital, statutory interest on the invested capital, lost profit, out-of-pocket expenses incurred, exemplary damages, and attorney fees.

Types of actions: Breach of contract, fraud (silent fraud, bad faith promise, negligent and innocent misrepresentation)

Type of injuries: Monetary damages

Name of case: Grand Sky Enterprise Co., Ltd. v. Future Financial Investments, LLC, et al.

Court/Case no./Date: Oakland County Circuit Court; 10-112097-CK; Nov. 21, 2011

Tried before: Judge

Name of judge: Leo Bowman

Verdict amount: $3,464,767

Special damages: Interest from date of filing

Attorneys for plaintiff: J. Laevin Weiner, Melinda A. Balian

Attorney for defendant: Barry A. Steinway

Status: Final judgment signed and entered Dec. 7, 2011. The appeal period has not yet run, and there has been no settlement.

#6

Negligence disputed in truck/motorcycle crash

Plaintiff says he had right of way in right lane as tractor-trailer went left

$3.42 million

In a lawsuit filed in U.S. District

Court for the Eastern District of

Michigan, Southern Division, plain-

tiff Kevin W. Kelley sought compen-

satory damages from defendants

Gary L. Waite, Steel Transport, Inc.,

and William L. Cooper Sr. for in-

juries sustained in a motorcycle-

truck accident. On April 17, 2009, Kelley was rid-

PALMER

ing his motorcycle and stopped at a

traffic light behind a tractor-trailer

being driven by Waite. The truck,

which was leased by Cooper, its

owner, to Steel Transport, was being

driven to a business, where Waite

was to look at a new trailer.

When the light turned green, the

truck and motorcycle turned left. As

Kelley observed the truck heading

LOECKNER

for the left lane, he began passing it

in the right lane. The truck then turned in front of Kelley

into a driveway on the right, hitting him. Kelley suffered

a fractured pelvis and multiple fractures in the left lower

extremity, in addition to a right shoulder dislocation.

Defendants asserted that Waite had activated his turn

signal in order to alert his passing into the lane; that plain-

tiff tried to "thread the needle" by squeezing in between

traffic; and that plaintiff was negligent because he did not

have a motorcycle endorsement on his driver's license.

Plaintiff contended he reasonably believed the truck

was heading into the left lane from the right when plain-

tiff started to pass the truck, and therefore had the right

of way in the right lane.

The jury rendered a total verdict of $3.42 million --

broken down as $1.5 million for past non-economic dam-

ages, $870,000 for excessive wage loss after three years,

and $1.05 million for future non-economic damages --

but found plaintiff 20 percent comparatively negligent.

After the comparatively negligent reduction, in addi-

tion to reduction of excess wage loss by deducting from

Social Security disability payments; reduction of future

damages to present value pursuant to MCL 600.6306;

and pre-judgment interest and taxable costs, present

value of judgment was $1,956,800.

Type of action: Third-party motor-vehicle negligence Continued on page B4

B4 ? Michigan Lawyers Weekly

January 9, 2012

Cite 26 Mich.L.W. 236

LARGEST VERDICTS

Continued from page 3

Types of injuries: Fractured pelvis, multiple fractures in left lower extremity, right shoulder dislocation, excess wage loss after three years Name of case: Kelley v. Steel Transport, et al.

Court/Case no./Date: U.S. District Court, Eastern District of Michigan; 09-14318; May 18, 2011 Tried before: Jury Name of judge: Mark A. Goldsmith Demand: $2 million Highest offer: $500,000 Verdict amount: $3.42 million, present value $1,956,800 Allocation of fault: 80 percent defendant, 20 percent plaintiff Most helpful experts: Dr. Alfred Faulkner, orthopedic surgery, Dearborn; James Pouliot, liability expert, Wyandotte; Robert Ancell, vocational rehabilitation, Southfield Insurance carrier: RLI Attorneys for plaintiff: Charles W. Palmer, Michael F. Loeckner Attorneys for defendant: Michael J. Hutchinson, Tara S. Cannatella Status: Judgment satisfied.

#7

Multi-plaintiff lawsuit asserts discrimination

33 people say they were excluded from consideration in new division

$2,621,424

In a multi-plaintiff, consolidated

lawsuit filed in Genesee County Cir-

cuit Court and U.S. District Court for

the Eastern District of Michigan,

plaintiff David Porter and 32 similar-

ly situated plaintiffs sought compen-

satory damages from defendants City

of Flint and Donald J. Williamson on

claims of emotional distress stemming from the exclusion of the city's

LENHOFF

"Citizens Service Bureau."

In 2006, pressure was exerted on Williamson, Flint's

mayor, from elements of the city's African-American com-

munity with the objective of increasing the number of

African-American command officers in the city's police

department. Williamson met with prominent people in

that community, and in December 2006, Williamson cre-

ated an elite unit in the police department called the

"Citizens Service Bureau" (CSB).

It was asserted that Williamson single-handedly created

the CSB without any posting, testing or other regular proce-

dure, but rather simply decreed there would be a CSB and

then staffed the CSB with four African-American officers

and one white female officer. It was further contended that

entrance into the CSB was largely closed to white officers.

At a news conference held shortly after the CSB's for-

mation, Williamson made an inculpatory statement re-

garding the exclusive racial orientation of the CSB. A

Flint Journal newspaper reporter, with no interest in the

outcome of this case, testified concerning Williamson's

inculpatory statement, but at the arbitration trial,

Williamson denied making the inculpatory statement. In

addition, at arbitration, Williamson denied that race was

considered in the CSB appointments.

Plaintiffs asserted that the CSB was racially oriented

and exclusive, and that mental anguish was suffered

when they were excluded from consideration. It also was

contended that the plaintiffs' belief that advancement

should be by dint of good conduct, diligent study, bravery

and hard work caused deep emotional harm.

Plaintiffs' counsel noted the key to bringing the case to

arbitration was an August 2009 jury trial award of

$131,000 in Keith Speer v. City of Flint, a CSB case that

proceeded as a single-plaintiff case in Genesee County Cir-

cuit Court before Judge Judith Fullerton (08-088276-CD).

Ten minutes after deliberations began, the Speer jury

sent out damages questions. After the jury returned its

award, the defendants agreed to an arbitration of the

other CSB cases that were then pending.

The arbitration panel unanimously found that race was

a factor in the creation, orientation and staffing of the CSB,

and awarded plaintiffs a total of $2,621,424 in damages.

Type of action: Racial discrimination

Type of injuries: Emotional distress

Name of case: Porter, et al. v City of Flint, et al.

Court/Case no./Date: Consolidated case with 48 plaintiffs in Genesee County Circuit Court (09-92472-CL) and U.S. District Court, Eastern District of Michigan (0714507; 07-13401); arbitration award issued July 6, 2011, confirmed in federal court Dec. 8, 2011

Tried before: Arbitration

Names of arbitrators: Barry L. Howard, Thomas W. Cranmer, David A. Kotzian

Demand: $3 million

Highest offer: $550,000

Arbitration award: $2,621,424

Special damages: Attorney fees and costs

Attorneys for plaintiff: Glen N. Lenhoff, Michael E. Freifeld, Gregory T. Gibbs, Dean T. Yeotis

Attorneys for defendant: H. William Reising, Frederic E. Champnella II, Joseph R. Furton Jr., Donald J. Williamson

Status: Award confirmed. An appeal of the confirmation order is possible, but not likely; after the appeal time runs on the confirmation order, plaintiffs' counsel will move for entry of judgment.

#8 (tie)

Woman suffers rectum, colon injuries in surgery

Plaintiff asserts OB/GYN, resident mishandled fetal remain-removal

$2.5 million

In a medical-malpractice lawsuit

filed in Washtenaw County Circuit

Court, plaintiff Amy Garcia sought

compensatory damages from Dr. Nor-

man Gove, Ann Arbor OB/GYN As-

sociates, P.C., and Integrated Health

Associates, Inc., for injuries sustained

during a dilation-and-evacuation

procedure. Garcia had a fetal demise during

MEKLIR

her early second trimester of pregnancy, and Gove was

going to remove the fetal remains via a dilation-and-

evacuation procedure. A laminaria was inserted in an

attempt to dilate the cervix, but it was discovered upon

examination under anesthesia that the laminaria failed.

It was asserted that Gove brought in an inexperienced

resident to assist with the procedure. The resident testi-

fied that she attempted to dilate the cervix using dilators,

but gave up when she ran into resistance.

After the resident's attempts, and without checking to

determine if Garcia's cervix had been dilated, using ring

forceps, Gove attempted to remove the remains. It was

alleged that, without using guidance, he went back in

grabbed the rectum and ripped the top half of the rectum

and a portion of the bowel out. As a result, a temporary

emergency ileostomy, to repair the colon and rectum,

was necessary, and an ileostomy pouch was put in place.

Plaintiff asserted that she now has permanent changes

to her bowel habits as well as significant scarring, and

suffers from cluster bowel movements, which render her

unavailable for full-time employment. It also was con-

tended that Gove was negligent.

Defendant Gove contended that the resident had done

the entire dilation, and testified that he did not utilize

ultrasound, a uterine sound, or his fingers to verify the

resident's position.

Judge Archie C. Brown found for the plaintiff and

awarded $2.5 million.

Type of action: Medical malpractice

Types of injuries: Injury to plaintiff's rectum and colon

Name of case: Garcia v. Gove, et al.

Court/Case no./Date: Washtenaw County Circuit Court; 10-123-NH; Nov. 22, 2011

Tried before: Judge

Name of judge: Archie C. Brown

Demand: $450,000

Verdict amount: $2.5 million

Case evaluation: $260,000

Most helpful experts: Dr. Ronald G. Zack, OB/GYN, Livonia; Dr. Jeffrey Soffer, OB/GYN, Westfield, N.J.

Attorney for plaintiff: Samuel A. Meklir

Attorney for defendant: Wilson A. Copeland II

Key to winning: Allowing the jury to understand the anatomy, the alternate methods of performing the procedure, and the logic behind the approach

Status: Judgment had yet to be entered at presstime.

#8 (tie)

Complex heart surgery goes wrong, results in patient's brain damage

Plaintiff says doctor went in wrong order, resulting in hemorrhaging

$2.5 million

In a lawsuit filed in Washtenaw

County Circuit Court, and consoli-

dated with a lawsuit filed in State

of Michigan Court of Claims, plain-

tiff Angela Smith, next friend to

plaintiff Alexander Miller, sought

compensatory damages from defen-

dants Dr. Eric Devaney; University

of Michigan Board of Regents; University of Michigan Health Center;

GOETHEL

and the University of Michigan Hos-

pital, on claims of severe brain- and

heart-related damage arising from

cardiac surgery that had to be

aborted intra-operatively.

The intended operation on Miller,

by Devaney, was a complex heart sur-

gery designed to revise a prior heart

surgery performed some 17 years be-

fore to treat a congenital heart defect. At the outset of surgery after

ENGELHARDT

opening Miller's chest, there was a tear of the right atrium

with resulting hemorrhage and a need to resuscitate the

patient with blood transfusions. Thereafter, as Devaney

then attempted to "mobilize the chest," he tore Miller's

aorta, resulting in even more hemorrhage and a surgical

crisis. Additional surgeons were summoned emergently

to assist, and more resuscitation was required.

Until this time, and contrary to the standard of care,

no efforts had been undertaken to have the patient pre-

pared to go on emergency bypass. Plaintiff 's proofs

demonstrated that, as Devaney attempted to gain vas-

cular access, he went in the wrong order, beginning with

venous access. Compounding his errors, it was further

contended, Devaney wasted precious time discovering

the femoral veins were occluded, facts that were well es-

tablished in the UMHS records and well-known to other

UMHS physicians.

By the time bypass was finally established, Miller re-

suscitated, the hemorrhaging stopped and the damage

repaired, Devaney and his colleagues had to abort the

entire operation. Within minutes of leaving the operating

room, Miller then suffered cardiac arrest requiring the

emergent re-entry of his chest to restart his heart (open

cardiac massage).

In the aftermath, Miller wound up in a coma, with anoxic

brain damage and other extensive injuries. Moreover, noth-

ing had been done to correct the underlying heart condi-

tions; he was not amenable to further surgery; and that

plaintiff's only viable option was heart transplant.

Plaintiff further claimed his brain damages resulted

in hemiparesis, a foot drop, and an aggravation of his al-

ready compromised cognitive function such that he

would never be able to live independently.

In addition, evidence was presented to demonstrate

that Devaney never met the patient or his parents until

minutes before the surgery; that he failed to present the

case at a planning conference; and did not collaborate

with the cardiology and surgical team, as was the norm

at heart centers around the country. It also was asserted

that Devaney failed to account for Miller's multiple risk

factors, and completely failed to have an appropriate

plan in place to initiate emergent bypass.

Defendant Devaney claimed there was no violation of

the standard of care; that there was no need for a preop-

erative planning conference; and that he was aware of

plaintiff's pre-existing femoral vein occlusion. It was fur-

ther asserted that Devaney's operative report contained

a dictation error, and that he had, in fact, proceeded in

the correct sequence to establish emergency bypass.

It also was asserted that the patient was stable during

the intra-operative bleeding events and that he was able

to get the patient safely on bypass. In addition, defendant

contended that plaintiff's life expectancy was highly lim-

ited, and would be the same regardless of his receiving a

heart transplant.

The jury found for the plaintiff and awarded $2.5 million.

Type of action: Medical malpractice

Type of injuries: Brain damages resulting in hemiparesis, foot drop and aggravation of already compromised cognitive function

Name of case: Smith, et al. v. Devaney, et al.

Court/Case no./Date: Washtenaw County Circuit Court,

Cite 26 Mich.L.W. 237

January 9, 2012

Michigan Lawyers Weekly ? B5

State of Michigan Court of Claims; 09-810-NH (Washtenaw), 09-91-MH (Court of Claims); Sept. 30, 2011

Names of judges: Timothy P. Connors (Washtenaw); Joyce Draganchuk (Court of Claims)

Verdict amount: $2.5 million

Most helpful experts: Dr. Bradley Sewick, neuropsychologist, Southfield; Dr. Owen Perlman, physical medicine and rehabilitation, Ann Arbor; Dr. David Clarke, pediatric cardiothoracic surgeon, Denver; Nitin Paranjpe, economist, Bloomfield Hills; Marianne Boeing, life-care planning expert; George Cyphers, rehabilitation counselor, Cleveland

Insurance carrier: Self-insured

Attorneys for plaintiff: Stephen Goethel, Chad D. Engelhardt

Attorney for defendant: Scott D. Feringa

Status: Post trial motions for costs and sanctions remain pending.

#9

Plaintiff claims deal led to misrepresentation of real estate investments

Says representative had him under impression other clients part of it

$2.375 million

In a lawsuit filed in Wayne Coun-

ty Circuit Court, but ordered to Fi-

nancial Industry Regulatory Au-

thority, Inc. (FINRA) arbitration,

plaintiff Taylor Affiliates, LLC

sought monetary damages for lost

principal and interest from defen-

dant Securian Financial Services,

Inc. on claims of suitability, misrepresentation, failure to supervise,

BYLSMA

and respondeat superior liability.

Taylor went to Securian for an in-

vestment plan. Despite written in-

vestment objectives of "preservation

of principal" and "conservative," the

Securian representative's written

plan included investing most of the

client's money in promissory notes

in favor of real estate limited liabil-

ity companies, in which the Securi-

BRODY

an representative was involved as a

participant and manager.

There were no disclaimers or information provided to

show that the investments were not monitored, super-

vised, or backed by Securian. It was asserted that Taylor

was led to believe that other Securian clients were in-

vesting in the securities.

Taylor invested $4.2 million in the promissory notes,

which, plaintiff contended, constituted a Private Securi-

ties Transaction. More than $2 million in interest and

other sources was recovered prior to bringing the claim.

Defendant asserted that the investments were not Se-

curian products and that plaintiff was not a client of Secu-

rian because he did not purchase any Securian products.

It also was contended that plaintiff did not have an account

at Securian and did not deposit any money with Securian.

Further, defendant argued the promissory notes were

not securities, and the sale of the notes did not constitute a Private Securities Transaction. Defense also pointed out other, unrelated real estate investments made by plaintiff,

and attempted to show that these investments were made by the plaintiff by his own choice and preference.

Plaintiff asserted that documents revealed that defen-

dant was aware that its representative was engaged in financing, buying, and selling real estate through limited liability companies, which is an outside business activity.

It also was contended that Securian failed to require full disclosure of those activities, and failed to ensure that they were not being marketed to Securian clients; then, when they did get involved, they did curtail the activities. Finally, it was argued, had Securian done so upon first learning of the outside real estate business activities, plaintiff would never have had the opportunity to invest. The arbitration panel awarded plaintiff $2.375 million.

Type of action: FINRA customer-broker/dealer claim for suitability, misrepresentation, failure to supervise, and respondeat superior liability

Type of injuries: Monetary damages for lost principal of $4.2 million, interest

Name of case: Taylor Affiliates, LLC v. Securian Financial Services

Court/Case no./Date: Originally filed in Wayne County Circuit Court, but ordered to FINRA arbitration; 10-03642;

Nov. 17, 2011

Tried before: Three-member arbitration panel

Names of arbitrators: Jeffry M. Bauer, Michael J. Meeusen, Dana Ray Darnell

Demand: $5.8 million

Highest offer: $50,000

Arbitration award: $2.375 million

Attorneys for plaintiff: Jon M. Bylsma, Adam J. Brody

Attorneys for defendant: Lawrence R. King, Sarah E. Madsen (Larson King, LLP, St. Paul, Minn.)

Key to winning: Ability to do discovery in prior related case to show internal compliance documents reflecting knowledge of the broker/dealer of the inappropriate activities of its representative

Status: There will be no appeal, and because the case was grounded on misconduct, the award can't be vacated in trial court.

#10

Nursing home resident chokes on meatball, dies

Plaintiff's estate: Aides negligent, did not call EMS in enough time

$2.35 million

In a lawsuit filed in Macomb

County Circuit Court, plaintiff Es-

tate of Walter Polomski sought com-

pensatory damages from defendants

SavaSeniorCare, LLC; SSC Warren

Operating Co., LLC; and Nightin-

gale East Nursing Center after

plaintiff's decedent suffocated, de-

veloped brain damage, and died. After having a stroke, Polomski

PERRIN

was admitted to Nightingale East. He was unable to

walk, had moderate dementia and a swallowing disorder,

along with a known increased risk of choking. An aide

was directed to sit with him to prevent choking, and his

meals were required to be ground up.

In March 2008, Polomski was mistakenly served a tray

of hard, golf ball-sized meatballs intended for another

resident. Four aides were required to supervise residents

in the dining room, but only three were present that day.

A nurse also was required by law to be present, but

never showed up that day.

Polomski began to cough, then choke, but it was as-

serted that aides there claimed to not know the Heimlich

maneuver. Polomski was wheeled through the facility in

search of a nurse; when one was found, attempts at the

Heimlich were unsuccessful.

Records showed that EMS wasn't called until Polomski

had been without air for 14 minutes. EMS arrived in

less than 2 minutes, and the paramedic removed the

meatball with forceps. Polomski was taken to a hospital

after resuscitation, but he suffered severe, near-total

brain damage. He was on a ventilator for several hours

until terminally weaned at family's request.

Plaintiff asserted that aides neglected plaintiff's dece-

dent for weeks; failed to feed him at times; and rarely

assisted with eating. On the day in question, it was fur-

ther contended, aides failed to compare his name on his

wrist band with the name on the tray slip, and their

negligence caused the choking.

It also was contended that SSC Warren Operating Co.,

LLC was a shell company created by SavaSeniorCare,

LLC, and that SavaSeniorCare claimed Nightingale

East, a long-defunct company, employed the staff, thus

shielding SavaSeniorCare from responsibility.

Defense contended that plaintiff's decedent was not

served a tray of food at all, but rather impulsively stole

food from another resident. It also was argued that all

meatballs served there were soft and tender, thus safe to

eat, and that it was not necessary for aides to know the

Heimlich.

It also was contended that SavaSeniorCare wasn't ac-

tually a company at all, but was only a trade name, did

not have any employees, and was unrelated to the nurs-

ing home in any way.

When plaintiff argued that current and former em-

ployees testified that SavaSeniorCare hired, fired, re-

cruited, trained, owned and controlled the facility, de-

fense contended the employees were mistaken, and that

one of the two other SavaSeniorCare-controlled shell

companies was the real employer.

The jury found for the plaintiff and awarded $2.35

million. The jury also determined that SavaSeniorCare

was the owner of the nursing facility.

Type of action: Nursing home negligence

Types of injuries: Suffocation, brain damage, death Name of case: Estate of Walter Polomski v. SavaSeniorCare, LLC, et al.

Court/Case no./Date: Macomb County Circuit Court; 09-005089-CZ; Nov. 15, 2011 Tried before: Jury Name of judge: Edward Servitto Demand: $500,000 Highest offer: $300,000 Verdict amount: $2.35 million Case evaluation: $975,000 Most helpful expert: Leon Pedell, internal medicine, Bloomfield Hills Attorneys for plaintiff: John M. Perrin, James Simasko Attorneys for defendant: D. Jennifer Andreou, Raymond Watts Status: Appeal may be filed for reduced damages per medical-malpractice caps.

#11

Use of vehicle's sirens, lights disputed in crash

Plaintiff says officer's video shows emergency equipment not engaged

$2,056,998

In a lawsuit filed in Wayne County

Circuit Court, plaintiff Michael Bey-

doun sought compensatory damages

from defendants city of Detroit and

Charles Benjamin Wills Jr. for in-

juries sustained in an auto accident.

Beydoun was stopped at a red

light at the intersection of Tele-

graph and Schoolcraft roads. When the light turned green, he proceeded

GUZALL

westbound along Schoolcraft with an individual traveling

next to him.

A Detroit police vehicle driven by Wills, a police officer

for the city, was going southbound on Telegraph through

the intersection's red light. He struck the front passenger

side of Beydoun's vehicle at Telegraph and slamming

the vehicle into the vehicle next to him.

Beydoun's injuries from the T-bone accident included

a disc bulge at C5-C6, radiculopathy, cervical and lumbar

strain, nerve damage and chronic pain, resulting in lim-

itations of activities he could perform after the accident.

He was subsequently treated by several doctors, but no

surgery was performed.

Beydoun owned his own company and performed very

specialized tasks, which he was not able to do after the

accident.

Plaintiff asserted that video evidence from the officer's

vehicle, along with eyewitness testimony, showed that

Wills did not use the police car's siren or visible lights to

alert other cars of his presence.

Defendant contended that Wills, who had received an

emergency radio call for police assistance, had activated

his emergency equipment and proceeded at a cautious

rate of speed, and that upon approaching the intersec-

tion, he slowed his vehicle and proceeded into the inter-

section. It also was asserted that, in anticipation of the

changing light, plaintiff proceeded into the intersection

and hit the officer's vehicle.

After 21/2 hours of deliberation, the jury found for the

plaintiff and awarded $2,056,998.

Type of action: Auto accident

Types of injuries: Neck, back, arm and nerve damage

Name of case: Beydoun v. City of Detroit, et al.

Court/Case no./Date: Wayne County Circuit Court; 09-026647; April 8, 2011

Tried before: Jury

Name of judge: Robert J. Colombo Jr.

Verdict amount: $2,056,998

Attorneys for plaintiff: Raymond Guzall III, Barry A. Seifman

Attorney for defendant: Marion R. Jenkins

Status: Defense plans to appeal.

Continued on page B6

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