ThE Michigan TRiaL REPORTER Michigan

Michigan

civil Rights

Defense: Stun gun use was not use of excessive force

Defense

Walsh v. Canton Township

U.S. District Court

Plaintiff counsel Kyle James Bristow, Bristow Law, PLLC, Dearborn, MI

Defense counsel James R. Acho, Cummings, McClorey, Davis & Acho, P.L.C., Livonia, MI

Full report on page 11

Premises Liability - Restaurant - Dram Shop Lapeer CountyBar denied patron involved in fight was over-served alcohol . . . . . . . . . . 5

Breach of contract - Real Estate Transactions Macomb CountyEscrow money sought after default of real estate contract . . . . . . . . . . . . 5

Motor Vehicle - Rear-ender - Third-party Benefits Macomb CountyFusion one year post-accident was related to crash: plaintiff . . . . . . . . . . 6

Medical Malpractice - Bariatric Surgery - Surgical Error Shiawassee CountyGastric bypass was performed appropriately, per defense . . . . . . . . . . . . 7

Breach of contract - Fraud - construction Washtenaw CountyOvercharge for kitchen cabinets was fraud, plaintiff alleged . . . . . . . . . . 8

Medical Malpractice - gynecological Surgery - Foreign Object Wayne CountyRetained surgical needle caused no damage: defense . . . . . . . . . . . . . . . . 9

Motor Vehicle - Rear-ender - intersection Wayne CountyPlaintiff claimed continuing limitations from auto injury. . . . . . . . . . . . . 9

Motor Vehicle - Parked car - no-Fault case Wayne CountyLow-speed crash didn’t cause serious injuries: defense . . . . . . . . . . . . . . 10

Legal Malpractice - attorney - Professional negligence U.S. District CourtAttorneys gave bad advice on personal exposure: plaintiffs . . . . . . . . . . 12

Cases of Note

FORMERLy ThE Michigan TRiaL REPORTER

Vol. 30 Issue 12 • December 2017

table of contents

Lapeer County

preMISeS LIaBILIty

Restaurant

Verdict Defense .............................................................5

MaCoMB County

BreaCH oF ContraCt

Real Estate Transactions

Decision $30,388 ...........................................................5

Motor VeHICLe

Rear-ender

Settlement $85,000 ......................................................6

SHIawaSSee County

MeDICaL MaLpraCtICe

Bariatric Surgery

Verdict Defense .............................................................7

waSHtenaw County

BreaCH oF ContraCt

Fraud

Verdict $45,445 .............................................................8

wayne County

MeDICaL MaLpraCtICe

Gynecological Surgery

Verdict Defense .............................................................9

Motor VeHICLe

Rear-ender

Settlement $60,000 ......................................................9

Motor VeHICLe

Parked Car

Settlement $7,500 ....................................................... 10

FeDeraL

CIVIL rIGHtS

Excessive Force

Verdict Defense ........................................................... 11

LeGaL MaLpraCtICe

Attorney

Verdict $4,927,000 ....................................................... 12

et aL...

Attorney Services Directory ......................................... 14

Index ............................................................................ 16

VerdictSearch Michigan

December 2017 3 www.verdictsearch.com

correction policy: We urge readers to report any factual errors. A correction will be prominently placed in an upcoming issue. Please telephone Carol Scott, editor, at 800-424-1591, or send an e-mail to [email protected].

VerdictSearch Michigan (ISSN 2329-7727) is published monthly by ALM Media Properties, LLC., 120 Broadway, 5th Floor, New York, NY 10271. Annual subscription rate is $425. All rights reserved. No materials in VerdictSearch New England may be reproduced without permission of the copyright owner. Periodical postage paid at New York, NY and additional mailing offices. POSTMASTER: Send address changes to VerdictSearch New England , 120 Broadway, 5th Floor, New York, NY 10271.

Visit at.alm.com/minimizingrisk to learn more.

almlegalintel.com

Minimizing Risk in Lateral Partner Hiring: Effective Due Diligence examines the obstacles firms face when navigating the due diligence stage of the Lateral Partner Hiring Lifecycle, equipping firm leaders with practical tools for improving the objectivity and value of candidate evaluations.

Report Contents Include:

• Roadmap for Conducting First-Rate Due Diligence

• Lateral Partner Questionnaire (LPQ) Framework

• Book of Business Portability Evaluation Worksheet

Minimizing Risk in Lateral Partner Hiring: Effective Due Diligence

LAPEER/MACOMB

Lapeer Count y

preMISeS LIaBILItyRestaurant — Dram Shop — Negligent Service of Alcohol

Bar denied patron involved in fight was over-served alcoholVerdICt defense

CaSe Dale Cherry v. N. Georges Inc. d/b/a Sparty’s Sports Bar & Grill and Reinaldo Zay-Gotay, No. 15-049291-NS

Court Lapeer County, Circuit Court, Lapeer, MIJudge Nick O. Holowkadate 10/6/2017

pLaIntIffattorney(S) Alyson L. Oliver, Oliver Law Group, PC,

Troy, MI

defenSeattorney(S) Karen R. Geibel, Collins Einhorn Farrell

PC, Southfield, MI (N. Georges Inc.) Reinaldo Zay-Gotay, Pro Se (Reinaldo Zay-

Gotay)

faCtS & aLLegatIonS On March 9, 2015, plaintiff Dale Cherry, 35, became involved in a physical altercation in the parking lot outside Sparty’s Bar & Grill located in Imlay City. Cherry suffered multiple bodily injuries.

Cherry sued N. Georges Inc. d/b/a Sparty’s Sports Bar & Grill for negligence. Cherry also sued Reinaldo Zay-Gotay, the allegedly intoxicated person with whom he was involved in the altercation.

Cherry alleged that Sparty’s Sports Bar & Grill over-served alcohol to Zay-Gotay, which Cherry claimed caused Zay-Gotay to become intoxicated and attack him. Cherry asserted a dram shop claim against Sparty’s. He also asserted an assault and battery claim against Zay-Gotay.

Sparty’s argued that there was no overserving of alcohol by the bar. Sparty’s argued that Cherry was intoxicated and was solely responsible for any injuries he suffered because he chose to become involved in a fight with the other bar patron.

Zay-Gotay claimed that Cherry initiated the altercation and threw the first punch. He claimed he only struck Cherry in self-defense.

InJurIeS/daMageS contusion; face; fracture, fibula; fracture, leg; head; pins/rods/screws

Cherry was taken by ambulance to a local emergency room after the bar fight. Cherry suffered head and facial bruises and a fracture of right fibula. He underwent surgery with implantation of a rod and screws.

Cherry claimed residual pain and limitations when walking. He sought $1 million in damages.

The defense primarily focused on liability.

reSuLt The jury found no negligence on the part of Zay-Gotay or Sparty’s Sports Bar & Grill. A verdict of no cause of action was entered.

trIaL detaILS Trial Length: 2 days Trial Deliberations: 2 hours

edItor’S note This report is based on information that was provided by defense counsel for N. Georges Inc. d/b/a Sparty’s Sports Bar & Grill. Plaintiff’s counsel declined to comment on the report.

–Gary Raynaldo

MaCoMB Count y

BreaCH of ContraCtReal Estate Transactions

Escrow money sought after default of real estate contractdeCISIon $30,388

CaSe The New Collins Corporation v. David Juzyk and Krstyna Juzyk and Carl M. Lopez, No. 2016-002513-CZ

Court Macomb County, Circuit Court, MIJudge Carl J. Marlingadate 9/5/2017

pLaIntIffattorney(S) A. Dale Ihrie, III, Hoste Bejin & Ihrie,

Mount Clemens, MI

defenSeattorney(S) John Jarzyna, Ray, MI (Carl M. Lopez) Brandon Nofar, Carthew Law Firm, P.C.

(Of Counsel), Troy, MI (David Juzyk, Krstyna Juzyk)

faCtS & aLLegatIonS In May 2016, plaintiff The New Collins Corporation, a real estate company, received an earnest money deposit of $10,000 from Carl Lopez. This was for the purchase of a home in Macomb County owned by David and Krstyna Juzyk. After a couple of months, the deal fell through and Lopez wanted his money back.

The New Collins Corporation as an interpleader, per Michigan law, sued Lopez and the Juzyks to have a judge sort out the matter. The company was holding onto the money in escrow as the purchase was being negotiated. The parties had each signed a contract, stipulating that the money was for the home purchase and Lopez would later close on the home after he received financing.



MACOMB

The Juzyks filed a cross-claim against Lopez, alleging he defaulted on the contract, in which he agreed to put the money down and secure financing to purchase the home. They contended that Lopez reneged and did not secure financing to purchase the home, even though he had been approved for a mortgage loan.

Lopez filed a counterclaim against New Collins and a cross-claim against the Juzyks, saying that he was not in default of the agreement and he was unable to secure financing for the purchase.

InJurIeS/daMageS The Juzyks and Lopez both sought to keep the $10,000 deposit.

reSuLt The judge dismissed Lopez’s claim against New Collins. The judge then ruled in favor of the Juzyks, ordering Lopez to surrender his $10,000 deposit and pay an additional $20,387.57 in sanctions for the defense of a frivolous claim. There was no insurance carrier involved in this case.

edItor’S note This report is based on information that was provided by plaintiff’s counsel. The defense attorneys did not respond to the reporter’s phone calls.

–Alan Burdziak

Motor VeHICLeRear-ender — Third-party Benefits — No-Fault Case

Fusion one year post-accident was related to crash: plaintiffSettLeMent $85,000

CaSe Edward Derush v. Leeann Wininger, No. 16-1936-NI

Court Macomb County, Circuit Court, MIJudge Michael Servittodate 8/1/2017

pLaIntIffattorney(S) Eric Stempien, Romano Law, PLLC,

Pleasant Ridge, MI

defenSeattorney(S) Melissa Neumann, Allstate Esurance &

Encompass Staff Counsel, Farmington Hills, MI

faCtS & aLLegatIonS On Dec. 3, 2014, plaintiff Edward Derush, 44, an HVAC repairman, was operating his vehicle southbound on Groesbeck Highway in Warren. A vehicle traveling behind him, driven by Leeann Wininger, struck Derush’s car with a glancing blow to the rear. Wininger’s vehicle then spun out of control, crossed the multiple-lane roadway, hit another vehicle and overturned before finally

ending up in the oncoming lane of traffic, where it hit an oncoming garbage truck. Derush claimed a lumber disc herniation as a result of the accident.

Derush filed suit against Wininger, alleging that Wininger was negligent in the operation of a motor vehicle.

Derush argued that Wininger failed to control her vehicle and failed to maintain an appropriate distance between the vehicles. Derush also claimed that Wininger failed to keep a proper lookout and failed to stop in time to avoid the accident.

Wininger admitted liability for causing the accident. The case proceeded on the issues of injury causation, serious impairment and damages.

InJurIeS/daMageS decreased range of motion; fusion, lumbar; herniated disc at L4-5; herniated disc, lumbar

Derush drove himself to a local emergency room after the accident. He had complaints of back pain. He was eventually diagnosed with a lumbar disc herniation at L4-5, for which he underwent fusion surgery a year later.

Derush was able to return to work after a period of time, but claimed restrictions in the range of motion in his back. He asserted that he had a serious impairment of body function. He sought non-economic damages.

Wininger contended that Derush treated for a short time after the accident, but then did not have surgery for one year. Therefore, the defense argued that the need for surgery was unrelated to the subject accident and was likely due to the heavy lifting that his work required.

Case evaluation was $75,000.

reSuLt The parties reached an $85,000 settlement.

InSurer(S) Esurance Insurance Services, Inc. for Wininger

edItor’S note This report is based on information that was provided by plaintiff’s counsel. Defense counsel did not respond to a request for comment.

–Margi Banner

6 December 2017www.verdictsearch.com

VerDictSearch Michigan

Don’t be left out. Call VerdictSearch now regarding advertising today!

Showcase your firm’s unique position in the legal market by becoming a preferred advertiser of VerdictSearch.

To advertise or to obtain more information: Call: James Gault at (800) 445-6823 or email: [email protected]

SHIAWASSEE

SHIawaSSee Count y

MedICaL MaLpraCtICeBariatric Surgery — Surgical Error — Negligent Treatment

Gastric bypass was performed appropriately, per defenseVerdICt defense

CaSe Cynthia Miller v. Nathan Tomita, D.O. and Mid-Michigan General Surgery, PLLC, No. 15-8004-NH

Court Shiawassee County, Circuit Court, Corunna, MI

Judge Matthew J. Stewartdate 7/21/2017

pLaIntIffattorney(S) Gregg H. Herman, Law Office of Gregg H.

Herman, Bingham Farms, MI

defenSeattorney(S) Timothy J. Dardas, Hackney Grover,

East Lansing, MI Randy J. Hackney, Hackney Grover,

East Lansing, MI

faCtS & aLLegatIonS On March 2, 2010, plaintiff Cynthia Miller, 52, a customer service representative, presented to Memorial Healthcare in Owosso for bariatric surgery. The elective, laparoscopic Roux-en-Y gastric bypass procedure was performed by general surgeon, Nathan Tomita, D.O., of Mid-Michigan General Surgery, PLLC. Post-operatively, Miller alleged that she experienced multiple episodes of digestive problems coupled with pain and discomfort. Tomita performed several upper endoscopy procedures on Miller between May 27, 2010 and Feb. 9, 2012 to address these digestive problems.

Miller sued Tomita and his professional corporation, Mid-Michigan General Surgery, PLLC, for medical malpractice. Miller alleged that Tomita created a 15-cm Roux limb when the standard of care required him to create a 100-cm Roux limb. Miller alleged that the creation of an inappropriately short Roux limb proximately caused bile reflux, which resulted in strictures and ulcers over a period of nearly five years and the need for a complete revision of her gastric bypass. She further alleged that Mid-Michigan General Surgery was vicariously liable for Tomita’s actions.

Miller’s surgical expert opined that Tomita either measured incorrectly or cut in the wrong place to create a Roux limb that was too short. He also opined that Tomita should have done more to address Miller’s recurrent strictures and ulcers.

Tomita denied deviating from the standard of care. Tomita claimed the pre-operative consent form Miller signed advised

that stenosis and ulcers are known complications and, although rare, either one can result in the need for another operation.

Tomita maintained that the Roux limb was appropriately made as described in the medical records and in conformity with his custom, habit and practice. He claimed this was corroborated at trial by three other health care providers who were in the operating room at the time of the surgery at issue. Tomita also argued that the measurements referenced in the records of a subsequent treating hospital were demonstrably contradictory and did not account for segments of the small bowel that were previously removed during the revision surgery or not accounted for in the pathology report. He also asserted that Miller’s “bile” reflux from an allegedly short Roux limb was not bile from a “short” limb at all, but, instead, was acid from a fistula that had developed. He asserted that this was a known complication of alteration of the alimentary (digestive) tract and not the result of any malpractice. The defense also noted that Miller’s health history was significant for diabetes, reflux disease, hypercholesterolemia, hyperlipidemia, hypertension and depression.

Tomita’s bariatric surgery expert opined that Tomita appropriately measured and created the Roux limb and that, to the extent the subsequent surgeon characterized the Roux limb as too short, the measurement either did not take into account a portion of the Roux limb that the subsequent surgeon had already removed and/or the measurement did not include the fistula and/or the ulcer, both of which were well described in the pre-surgical work-up and operative note. He also opined that Tomita’s post-operative evaluations, endoscopies and medication adjustments were appropriate ways to address Miller’s recurrent strictures and ulcers, which were known complications of the bypass surgery.

InJurIeS/daMageS gastric bypass; stricture; ulcer Miller claimed she developed ulcers, bile reflux and

strictures as a result of an alleged surgical error by Tomita, necessitating revision surgery. She claimed she has suffered many years from the time of the original surgery and the repair surgery and that she has experienced digestive difficulty. She sought compensatory damages in the amount of $400,000.

The defense argued that, although medical records support that Miller had post-operative complications, those complications were not the result of any breach in the standard of care by Tomita. Rather, the defense contended, the complications were known complications that can and do occur in the absence of any malpractice. The defense further argued that those complications were appropriately addressed by Tomita and that Miller recovered well and has not experienced any further complications.

reSuLt The jury found that Tomita did not breach the appli-cable standard of care and a verdict of no cause of action was entered.



SHIAWASSEE/WASHTENAW

deMand $325,000offer None

InSurer(S) Coverys for Nathan Tomita, D.O. and Mid-Michigan General Surgery, PLLC


pLaIntIffexpert(S) William Henry Harrison Chapman, M.D.,

general surgery, Greenville, NC

defenSeexpert(S) Steven Poplawski, M.D., bariatric surgery,

Ypsilanti, MI

poSt-trIaL Cynthia Miller agreed to forego post-trial motions and appeal in exchange for Nathan Tomita, D.O. and Mid-Michigan General Surgery, PLLC agreeing to forego pursuing costs as the prevailing party.

edItor’S note This report is based on information that was provided by defense counsel. Plaintiff’s counsel did not respond to the reporter’s phone calls.

–Gary Raynaldo

waSHtenaw Count y

BreaCH of ContraCtFraud — Construction

Overcharge for kitchen cabinets was fraud, plaintiff allegedVerdICt $45,445

CaSe Christine Lynee Wolf v. Great Lakes Renovations, LLC, No. 15-000525-CZ

Court Washtenaw County, Circuit Court, MIJudge Timothy P. Connorsdate 5/2/2017

pLaIntIffattorney(S) Patrick Anthony Foley, John R. Foley, P.C.,

Dearborn, MI

defenSeattorney(S) Eric Stempien, Romano Law, PLLC,

Pleasant Ridge, MI

faCtS & aLLegatIonS In early December 2013, plaintiff Christine Lynee Wolf, 61, a homeowner, contracted with Great Lakes Renovations, LLC to perform reconstruction of her house following a major flood/water intrusion. The house had been remediated and Great Lakes was to perform

restoration work. The contract was initially for $68,000 in repairs, but the work ultimately cost approximately $83,000 due to changes ordered. A dispute arose regarding the cost of cabinets that were installed in the kitchen, leading to allegations of fraud and breach of contract.

Wolf filed suit against Great Lakes for fraud, alleging that Great Lakes overcharged her for the kitchen cabinets. There were also claims of breach of contract regarding the alleged overcharge, as well as a failure of Great Lakes to complete the project and liens filed against the property by the project manager and a subcontractor for nonpayment of services.

Following the flood damage to Wolf’s home, Wolf was reimbursed approximately $8,000 by her insurer for bottom line kitchen cabinetry replacement. However, Wolf wanted higher grade cabinets in the range of $20,000. Great Lakes allowed Wolf to shop at a contractor-only supplier and pick out cabinets of a higher grade, but then allegedly charged Wolf more than the supplier had charged Great Lakes. According to Wolf, Great Lakes charged her the retail rate of $16,000, rather than the supplier’s rate, which was $10,000. Wolf based this on statements made to her by the project manager, who was fired during the construction.

Great Lakes denied all the allegations. The defense contended that an upcharge for the kitchen cabinets was not uncommon and that Wolf received cabinets of a higher value and for less money than originally estimated. Further, the defense argued that the liens were unrelated to the contract. Great Lakes maintained it had every intention of finishing the project, but Wolf delayed construction. According to Great Lakes, its employees were locked out and unable to finish the job.

InJurIeS/daMageS Wolf sought damages for storage fees, rent for a period of time she was unable to live in her house during the extended construction, the extra money she paid for the kitchen cabinets and coverage for the liens. She asked the jury to award in excess of $70,000.

Damages were disputed.Case evaluation was $12,500, which plaintiff accepted

conditional upon defendant finishing the project. Defendant rejected the evaluation amount.

reSuLt The jury found for Wolf and determined that her damages totaled $45,444.77. Wolf was also awarded case evaluation sanctions of approximately $40,000.

deMand $30,000offer $7,500

trIaL detaILS Trial Length: 2 days Trial Deliberations: 3 hours Jury Composition: 8 jurors

edItor’S note This report is based on information that was provided by defense counsel. Plaintiff’s counsel did not respond to a request for comment.

–Margi Banner



WAYNE

wayne Count y

MedICaL MaLpraCtICe Gynecological Surgery — Foreign Object

Retained surgical needle caused no damage: defenseVerdICt defense

CaSe Nahil Haddad v. Beaumont Hospital-Dearborn, No. 15-16885-NH

Court Wayne County, Circuit Court, MIJudge Edward Ewell, Jr.date 10/26/2017

pLaIntIffattorney(S) Victor Bowman, Allen J. Counard, P.C.,

Trenton, MI Allen J. Counard, Allen J. Counard, P.C.,

Trenton, MI

defenSeattorney(S) Michael D. Dolenga, Dolenga & Dolenga,

PLLC, Farmington, MI Nicholas Schwartz, Dolenga & Dolenga,

PLLC, Farmington, MI

faCtS & aLLegatIonS On July 9, 2013, plaintiff Nahil Haddad, 40, underwent a total robotic hysterectomy performed at Beaumont Hospital in Dearborn. Haddad claimed she suffered an injury to her bladder as a result of the surgery. Haddad then underwent a robotic bladder repair procedure. After the second surgery, Haddad developed a vesicovaginal fistula. Haddad claimed that during the second procedure, a needle was left in her abdomen. Haddad then underwent a third surgery, an open vesicovaginal fistula repair, with removal of the retained needle.

Haddad sued Beaumont Hospital-Dearborn for medical malpractice. Haddad alleged the surgeon was negligent in leaving a needle in her abdomen.

Beaumont Hospital-Dearborn conceded negligence. The trial proceeded on the issue of Haddad’s claimed injury and damages.

InJurIeS/daMageS abdomen; bladder, perforation/rupture; emotional distress; fistula; scar and/or disfigurement

Haddad alleged the retained needle caused her to develop a vesicovaginal fistula and the need for revision surgery. Haddad claimed she suffered scars from the open surgical procedure. She also claimed emotional distress after doctors told her she had a retained needle in her abdomen.

Haddad sought to recover damages for past and future medicals and past and future pain and suffering.

The defense argued that Haddad did not suffer any injuries as a result of her surgeries. The defense argued that the

vesicovaginal fistula was not related to the retained needle and that the surgery was necessitated by the fistula.

The defense’s medical experts opined that the needle was sitting on top of the bladder and could not move anywhere to cause any damage. They also opined that they would have left the needle in her abdomen as it would have eventually flush out of her abdomen without causing any damage to her abdomen.

reSuLt The jury found for Beaumont Hospital and a verdict of no cause of action was entered.


pLaIntIffexpert(S) None reporteddefenSeexpert(S) Ethan Goldstein, M.D., ob-gyn, Commerce

Charter Township, MI Richard Sarle, M.D., bladder, Dearborn, MI

edItor’S note This report is based on information that was provided by defense counsel. Plaintiff’s counsel did not respond to the reporter’s phone calls.

–Gary Raynaldo

Motor VeHICLeRear-ender — Intersection — Underinsured Motorist

Plaintiff claimed continuing limitations from auto injurySettLeMent $60,000

CaSe Dale Brown v. Kimberly Makowski, John Makowski and Auto Owners Insurance Company, No. 16-009043-NI

Court Wayne County, Circuit Court, MIJudge Daphne Means Curtisdate 9/21/2017

pLaIntIffattorney(S) Thomas B. Calcatera, Mike Morse Law

Firm, Southfield, MI

defenSeattorney(S) Hans J. Massaquoi, Lewis & Munday, PC,

Detroit, MI (Kimberly Makowski, John Makowski)

Richard P. Peterson, II, Law Offices of Conlin, McKenney & Philbrick, P.C., Ann Arbor, MI (Auto Owners Insurance Co.)



WAYNE

faCtS & aLLegatIonS On Dec. 11, 2015, plaintiff Dale Brown, 63, a machine programmer, was operating a vehicle on northbound Middlebelt Road in Inkster. He slowed for traffic at the intersection with Cherry Hill Road and was rear-ended by a vehicle driven by John Makowski. This was described as a moderate impact, which caused the air bags in the vehicles to deploy. Makowski was issued a citation for causing the accident. Brown claimed a torn rotator cuff as a result of the collision.

Brown filed suit against John Makowski, alleging that Makowski was negligent in the operation of a motor vehicle. Brown also sued Kimberly Makowski, who owned the vehicle John Makowski was driving, as well as third-party carrier, Auto Owners Insurance Company.

Brown settled with the Makowskis for the liability policy limits of $20,000. The case proceeded on the third-party claims.

Auto Owners did not dispute that Makowski caused the accident, but argued that Brown’s injuries did not rise to the level of a serious impairment of body function.

InJurIeS/daMageS arthroscopy; rotator cuff, injury (tear); shoulder

Brown was diagnosed with a partial thickness tear of the rotator cuff, which required arthroscopic surgery in April 2016. He was off work for 10 days and had light-duty restriction at work for two months before returning to work full-time.

Brown claimed he was unable to enjoy the normal activities of life due to his shoulder injury, which included outdoor activities of cutting logs, skiing, wood-working and photography.

The defense contended that Brown was able to return to work and resume his normal life activities. The defense also argued that Brown’s injury did not constitute a serious impairment of body function.

reSuLt Brown and Auto Owners reached a $40,000 facili-tated settlement of the underinsured motorist claims. This was in addition to an earlier $20,000 tortfeasor settlement, resulting in a total recover of $60,000.

InSurer(S) Auto-Owners Insurance Co. for Brown (underinsured carrier)

edItor’S note This report is based on information that was provided by plaintiff’s counsel. Defense counsel did not respond to a request for comment.

–Margi Banner

Motor VeHICLeParked Car — No-Fault Case — Serious Impairment

Low-speed crash didn’t cause serious injuries: defenseSettLeMent $7,500

CaSe Chris Bullman v. MIC General Insurance Corporation, No. 17-001260-NF

Court Wayne County, Circuit Court, MIJudge David J. Allendate 9/11/2017

pLaIntIffattorney(S) Elias Muawad, Law Offices of Elias

Muawad, P.C., Bloomfield Hills, MI

defenSeattorney(S) Gregory Alan Behler, The Kitch Firm,

Mount Clemens, MI

faCtS & aLLegatIonS On Oct. 27, 2016, plaintiff Chris Bullman, 43 and unemployed, was involved in an automobile accident at Addison Avenue and McGraw Avenue in Detroit. Bullman was parked along the road when the tortfeasor lost control and struck Bullman’s vehicle. It was daylight and conditions were dry at the time. The uninsured tortfeasor was ticketed for reckless driving. Bullman claimed neck and back injuries.

Bullman filed suit against his carrier, MIC General Insurance Corporation, for first-party benefits, including medicals, replacement services and attendant care, and third-party benefits for non-economic damages. He claimed he was entitled to no-fault benefits under the terms of his insurance policy.

MIC General did not dispute that the tortfeasor caused the accident. However, the insurer maintained that Bullman did not suffer any serious impairments of body function, nor were his injuries causally related to this low-speed impact.

InJurIeS/daMageS back and neck; soft tissue Bullman claimed soft tissue neck and back injuries, which

he asserted were serious impairments of body function.Bullman sought third-party, non-economic damages. He

also sought first-party benefits such as $1,500 in medicals, replacement services and attendant care.

The defense denied that any first- or third-party benefits were due or owing.

reSuLt The parties reached a settlement for first- and third-party benefits, including future benefits in the amount of $7,500.



Verdict ResourcesAccess our easy-to-use

verdict and settlement database.

www.verdictsearch.com

Postage will be paid by Addressee

VERDICTSEARCH120 BROADWAY, 5TH FLOORNEW YORK, NY 10271

We want to hear about your case!

Why wait for us to contact you?

Why run the risk that we may have missed your case?

Please use this self-mailing questionnairefor reporting your verdict or settlement.

NO POSTAGE NECESSARY

IF MAILED IN THE

UNITED STATES

BUSINESS REPLY MAIL FIRST-CLASS MAIL PERMIT NO. 6 EAST ISLIP NY

fold here

tape here

CASE DATA QUESTIONNAIRE

Submitted by:

Phone:

Fax:

Email:

Log onto verdictsearch.com and click on “Submit a Case.”

Please use this form for reporting verdicts or settlements. If you prefer to dictate a letter, use this form as a guide. You may reproduce this form as needed. Please be sure to retain a copy for your records. NOTE:

1. CASE NAME (please give full caption, including all parties)

2. INDEX NO. 3. JUDGE 4. COURT AND COUNTY

5. ARBITRATOR/ MEDIATOR 6. DATE OF VERDICT OR SETTLEMENT 7. LENGTH OF TRIAL (excluding jury selection)

10. TOTAL AWARD (if structured settlement, please give details)

12. LIABILITY PERCENTAGES

Please check the appropriate box:

Verdict: ❏ Settlement: ❏

Mediated Settlement: ❏ Decision: ❏

Arbitration: ❏

1

120 Broadway, 5th Floor • New York, NY 10271 • PH: 212-457-9576 • FAX: 212-233-8597

13. JURY POLL 14. TIME JURY WAS OUT

15. COMPOSITION OF JURY (e.g., gender, race)

16. POST-TRIAL MOTIONS AND RESULTS (please be as specific as possible)

17. HAS NOTICE OF APPEAL BEEN FILED? 18. IF SO, BY WHOM?

19. INSURANCE CARRIER(S) (it is essential that you indicate each insurer and what party it insured)

20. DATE, TIME AND PLACE OF ACCIDENT OR OCCURRENCE

21. AGE AND OCCUPATION OF PLAINTIFF(S) (please list age at time of incident. For wrongful-death cases, please give ages of decedents and survivors.)

22. DESCRIPTION OF CASE (please include ALLEGATIONS AND DEFENSES on liability. Be as comprehensive as possible. Identify all parties to the case, specify makes and models of motor vehicles, etc. Remember to list the result for all defendants: who was found liable, who was dismissed, etc.)

2

23. PLAINTIFF’S INJURIES, TREATMENT AND RESIDUALS (please include ALLEGATIONS AND DEFENSES on damages. Be specific concerning MEDICAL TESTIMONY)

24. SPECIALS

25. AMOUNT ASKED OF JURY

26. DEMAND 27. OFFER

28. PLAINTIFF’S EXPERTS (please include expert’s specialty, city, company affiliation and, if called, the name of attorney who called the witness)

29. DEFENDANT’S EXPERTS (please include expert’s specialty, city, company affiliation and, if called, the name of attorney who called the witness)

30. OTHER COMMENTS (especially concerning matters critical to the outcome of the case. In your opinion, what was the TURNING POINT in the case? What were the results of POST-VERDICT JURY INTERVIEWS? If necessary, use paragraph numbers to add more information from previous pages. Please use additional page if needed)

Thank you! 3

WAYNE/FEDERAL

InSurer(S) MIC General Insurance Corporation for Bullman (first party carrier)

edItor’S note This report is based on information that was provided by plaintiff’s counsel. Defense counsel did not comment on the case.

–Margi Banner

federaL

FEATURED VERDICT

CIVIL rIgHtSExcessive Force — Search and Seizure — Police as Defendant

Defense: Stun gun use was not use of excessive forceVerdICt defense

CaSe Edward Thomas Walsh v. Canton Township, Edward Jagst, Jessica Nuottila, Craig Wilsher, and Darren Kossick, No. 2:15-cv-14071-MAG-SDD

Court U.S. District Court for Eastern District of Michigan, MI

Judge Terrence G. Bergdate 10/31/2017

pLaIntIffattorney(S) Kyle James Bristow, Bristow Law, PLLC,

Dearborn, MI

defenSeattorney(S) James R. Acho, Cummings, McClorey,

Davis & Acho, P.L.C., Livonia, MI

faCtS & aLLegatIonS On the evening of Jan. 9, 2013, plaintiff Edward Thomas Walsh, 40, made multiple 911 telephone calls to the Canton Township Police Department. Several police officers were dispatched to Walsh’s home. When they arrived, Walsh refused to open the door and the officers entered his home through a side window. An altercation ensued and three police officers used a stun gun on Walsh, who fell forward and hit his head against a coffee table. Walsh claimed a head injury and facial lacerations.

Walsh sued Canton Township and its police officers, Edward Jagst, Jessica Nuottila, Craig Wilsher and Darren Kossick, asserting a claim for excessive force and unlawful entry. Walsh also alleged that Canton Township was vicariously liable for the officers’ alleged conduct because they were engaged in the course and scope of employment at the time of the incident.

Walsh claimed he was startled when the officers entered his home and an altercation began. Walsh claimed he was not resisting the officers when they utilized the stun gun on him.

The defense denied the officers used excessive force. The defense claimed Walsh was well known to the police department since 2009, with police having been dispatched numerous times to his home for complaints by neighbors about his behavior.

According to the defense, Walsh was intoxicated when he called 911 at least 35 times on the night of the subject incident. The defense claimed Walsh was warned not to tie up the 911 line if he did not have an emergency. However, the defense contended that Walsh continued to call 911 and hang up. Per the defense, the police officers were dispatched only when the pattern to Walsh’s calls changed and there were concerns whether there was a real medical emergency at Walsh’s home.

The defense further argued that, upon entering Walsh’s home through the window, Walsh suddenly and unexpectedly jumped out in view of the officers with a glass vase which he tossed in the direction of officers and the vase nearly missed them and shattered against a wall. The defense claimed Walsh then charged like a bull at Nuottila with his arms extended like he was about to choke her. The defense claimed the officers feared for Nuottila’s and their own safety and used the stun gun on Walsh, who fell and hit his head on the table.

The defense argued that the police officers had a right to enter Walsh’s home under the emergency or exigent circumstances exception to the rule against entering a residence without a warrant. The defense argued that the police officers exercised exceptional restraint under the circumstances by choosing not to shoot Walsh with their service weapons and, instead, using stun guns. The defense also noted that Walsh was not arrested or charged with any crime, but was taken to a local hospital for psychiatric evaluation.

InJurIeS/daMageS burns, Taser; closed head injury; emotional distress; face; laceration; sutures

Walsh was treated for closed head injury and facial lacerations. He received sutures for his head injury. He also claimed he suffered emotional distress.

Walsh sought $3 million in compensatory damages.

reSuLt The jury found the officers did not violate Walsh’s civil rights when they entered his home and did not use exces-sive force. A verdict of no cause of action was entered.


edItor’S note This report is based on information that was provided by defense counsel and information gleaned from court documents. Plaintiff’s counsel did not respond to the reporter’s phone calls.

–Gary Raynaldo



FEDERAL

LegaL MaLpraCtICeAttorney — Professional Negligence — Breach of Contract

Attorneys gave bad advice on personal exposure: plaintiffsVerdICt $4,927,000

CaSe Neal Cohen, Darren Chaffee and SSL Assets, LLC v. Jaffe Raitt Heuer & Weiss, P. C., Jeffrey M. Weiss, Lee B. Kellert and Deborah L. Baughman, No. 2:16-cv-11484-GCS-APP

Court U.S. District Court for Eastern District of Michigan, MI

Judge Geroge Caram Steehdate 10/3/2017

pLaIntIffattorney(S) Mark S. Baumkel, Law Offices of Mark S.

Baumkel, Franklin Mills, MI Jeffrey J. Goulder, Stinson Leonard Street,

LLP, Phoenix, AZ Michael A. Vincent, Stinson Leonard Street,

LLP, Phoenix, AZ

defenSeattorney(S) Michael P. Ashcraft, Jr., Plunkett Cooney,

P.C., Bloomfield Hills, MI (Jaffe, Raitt Heuer & Weiss, P. C., Deborah L. Baughman, Jeffrey M. Weiss, Lee B. Kellert)

Mark S. Baumkel, Law Offices of Mark S. Baumkel, Franklin Mills, MI (CoBe Capital, LLC (third-party defendant))

Jeffrey J. Goulder, Stinson Leonard Street, LLP, Phoenix, AZ (CoBe Capital, LLC (third-party defendant))

Jeffrey S. Hengeveld, Plunkett Cooney, P.C., Bloomfield Hills, MI (Jaffe, Raitt Heuer & Weiss, P. C., Deborah L. Baughman, Jeffrey M. Weiss, Lee B. Kellert)

Michael A. Vincent, Stinson Leonard Street, LLP, Phoenix, AZ (CoBe Capital, LLC (third-party defendant))

faCtS & aLLegatIonS In late 2012, plaintiffs Neal Cohen, Darren Chaffee and one of their businesses, SSL Assets, who are in the business of buying and turning around distressed businesses, targeted and were attempting to purchase a Minnesota cabinet making company, LSI Corporation of America. As the transaction proceeded, an issue arose about LSI’s underfunded pension fund. Cohen and Chaffee had concerns about their personal liability in the event LSI defaulted in its obligations to the pension fund after the anticipated acquisition. They hired the law firm of Jaffe, Raitt, Heuer & Weiss relative to certain aspects

of the transaction, including advice as to the potential for liability arising from a default in pension payments if LSI were acquired and the new management could not turn the company around. Jaffe partners Jeffrey Weiss, Lee Kellert and Deborah Baughman undertook such representation and provided legal advice about the acquisition of LSI, including the contingent pension liabilities.

The acquisition was completed with Cohen and Chaffee comfortable with advice they alleged they received from the Jaffe lawyers handling the matter. They reportedly felt assured that they had no personal liability if LSI prospectively defaulted in its pension obligations or withdrew from the pension altogether after it was acquired by and managed by the Cohen and Chaffee management team. LSI did default in its contractual and legal pension obligations and the labor union representing the affected employees looked to Cohn, Chaffee and SSL Assets to reimburse the pension to the extent it was underfunded, or $3.26 million.

Cohen, Chaffee, and SSL Assets jointly sued the Jaffe law firm and the individual partners handling their transaction for legal malpractice and breach of contract. The plaintiffs alleged that Jaffe and its partners provided faulty legal advice which rose to the level of legal malpractice.

In the course of their business, Cohen and Chaffee acquired underperforming businesses from large multinational corporations through CoBe Capital, LLC. Cohen is the owner of CoBe and Chaffee is managing director of CoBe Management with no ownership interest. In December 2012, Chaffee began due diligence on the possible purchase of LSI, which was a wholly-owned subsidiary of HNI Corp. Chaffee learned that LSI sponsored a multi-employer defined benefit pension plan for its union employees and that the pension fund was underfunded. Chaffee said he learned that companies who participate in underfunded pension plans could face pension withdrawal liability if the company stops contributing to the plan, such as by ceasing operations and laying off its employees. Chaffee read articles related to pension withdrawal liability, including one that discussed a court opinion deciding that investment activities of a private equity fund did not constitute a “trade or business” and therefore did not subject the private equity fund to joint and several liability as a controlled group. Controlled group liability is an ERISA concept whereby other entities can be responsible for the pension withdrawal liability of the sponsor of a pension plan based on common ownership. Cohen and Chaffee reportedly learned that the most recent estimate of LSI’s pension withdrawal liability was $3.9 million. Their primary concern was to ensure that this liability was confined to LSI and would not spread to themselves or their other companies.

Chaffee emailed Jeffrey Weiss on April 4, 2013 regarding the pending LSI deal. Weiss had rendered legal advice to Cohen and Chaffee in a prior attempted business acquisition. Chaffee explained that LSI was exposed to pension withdrawal liability of $3.9 million and he wanted advice regarding how to avoid having that liability attach to



FEDERAL

their other companies. Discussions over the pension liability issue ensued after the April 4, 2013, email.

Controlled groups are determined by the ownership percentages in the entities involved. In order to render an opinion on whether Cohen and Chaffee’s other companies were part of a controlled group, Attorney Weiss asked Chaffee if he and Cohen had common ownership in any entities. Weiss does not recall explaining to Chaffee what “common ownership” meant for purposes of a controlled group liability analysis. According to Weiss, Chaffee said that he and Cohen did not have common ownership in any entities. Weiss allegedly did not obtain any other information to evaluate the issue of controlled group liability prior to the closing of the LSI purchase.

The Jaffe lawyers drafted an operating agreement for LSI Holdings of America.

In September 2014, Chaffee and Cohen formed Cocha Finance, LLC to secure a $1.5 million asset-based working capital line of credit that LSI had taken from Bell State Bank & Trust. Despite the investment, by December 2014, LSI had run out of money. CoBe became the managing entity responsible for overseeing the operation of LSI, attempting to turn it around financially.

On Dec. 4, 2014, Chaffee contacted the lawyers to reconfirm the controlled group liability issue. The next day Kellert replied to Chaffee, “[Y]ou are correct that we do not believe that CoBe has any direct (the plan administrator can always make an alter ego claim) exposure for the pension withdrawal liability.”

At this time, LSI sought advice from a bankruptcy firm about the option of filing bankruptcy for LSI. From discussions with the bankruptcy law firm in January 2015, Cohen and Chaffee learned that because they shared ownership interests in SSL Assets through their individual holding companies, SSL Assets was in a controlled group relationship with LSI and LSI Holdings. Over the course of the next year, Cohen and Chaffee tried to keep LSI going, but LSI was forced to terminate its entire workforce in January 2016, thereby constituting a complete withdrawal from the pension fund. This triggered LSI’s pension withdrawal liability and SSL’s corresponding controlled group liability. LSI’s and, therefore SSL Assets, incurred a withdrawal liability of $3,259,960.

Weiss gave deposition testimony that he did not have a “legally accurate” understanding of the meaning of “controlled group liability” during the course of the transaction. Because he did not feel competent to assess controlled group liability, he said he relied on his partner Baughman to perform the analysis. Weiss testified that Baughman told him what information she would need to conduct the controlled group analysis. Baughman testified that she relied on Weiss to provide the necessary facts for her to perform a controlled group analysis, but denied that she told Weiss what questions to ask. Baughman recalled Weiss orally informing her of the ownership structure of LSI Holdings, but not of any other companies. Baughman

told Weiss there was no LSI controlled group beyond LSI Holdings.

In late 2014, Jaffe represented LSI in conducting negotiations with LSI’s labor union. Weiss testified that LSI Holdings was Jaffe’s client for services rendered in connection with the union negotiations. On Jan. 23, 2015, Jaffe sent a bill to CoBe for legal services in the amount of $92,422, provided from Sept. 5, 2014 through Dec. 11, 2014. Jaffe billed the services to the “COBE-LSI” matter/file number to which it had billed all previous services.

As a result of the lawsuit brought against the law firm and partners, Jaffe brought a third-party action seeking to collect its legal fees from CoBe. The third-party claim asserted breach of contract and equitable theories.

There was no written engagement letter between the law firm, any of the plaintiffs or CoBe.

In defense of the principal action against it, Jaffe asserted that it professionally and competently provided all services rendered in connection with the acquisition. Although it was acknowledged that pension fund liability issues came up during the course of the transaction, the defense asserted that those issues were beyond the scope of the core transactional issues that were the basis of the legal engagement.

InJurIeS/daMageS Upon learning from the bankruptcy lawyers in January 2014 that SSL Assets was exposed to the liability for the underfunded pension, Cohen and Chaffee invested an additional $3.25 million in LSI over the course of the next eight months to sustain the company. When the dust settled, SSL was liable to the pension fund in the amount of $3.26 million.

reSuLt A jury determined that Jaffe Raitt Heuer & Weiss PC was negligent in the advice it gave to Cohen and Chaffee about pension liability stemming from their acquisition of LSI. The jury returned a total damages award of $4,927,000, with $1 million to Cohen, $667,000 to Chaffee and $3.26 million to SSL.

trIaL detaILS Trial Length: 6 days Trial Deliberations: 1 day Jury Vote: 8-0 Jury Composition: 3 male; 5 female

poSt-trIaL Defendants have indicated an intention to appeal.

edItor’S note This report is based on information that was provided by plaintiffs’ counsel. Defense counsel declined to contribute to the report.

–Jon Steiger



At t o r n e y s erv i c e s d i r e c t o ry

Need aN expert witNess or coNsultaNt?

Our site has 15,000+

• FREE online access •

• Detailed profiles and resumes of experts •

• Hundreds of areas of expertise •

• Powerful search tools •

• Coast-to-coast coverage •

Visit us today at ALMExpErts.coM

call: James Gault 1-888-809-0133

E-mail: [email protected]

At t o r n e y s erv i c e s d i r e c t o ry

Showcase your firm’s unique position in the legal market

by becoming a preferred advertiser of VerdictSearch.

Don’t be left out!

Call VerdictSearch regarding advertising today!

To advertise or to obtain more information, contact:

James Gault toll free at 1 (866) 546-0564 or email: [email protected]

Find it!@ verdictsearch.com

Access the facts on over 140,000 cases tried, mediated,

arbitrated or settled nationwide.

Log on or call

1-800-445-6823 for more information.

The VerdictSearch Solution— Case-Winning Intelligence on the Web, on the Phone and in Print

Find it!@ verdictsearch.com

Access the facts on over 140,000 cases tried, mediated,

arbitrated or settled nationwide.

Log on or call

1-800-445-6823 for more information.

The VerdictSearch Solution— Case-Winning Intelligence on the Web, on the Phone and in Print

Request your FREE copy of ALMExperts’ Witnesses & Consultants

Directory

Call 1-800-809-0133

Request your FREE copy of ALMExperts’ Witnesses & Consultants

Directory

Call

Index

Attorneys

Acho, James R. . . . . . . . . . . . . . . . . . . . . . 11

Ashcraft, Michael P. Jr. . . . . . . . . . . . . . . . 12

Baumkel, Mark S. . . . . . . . . . . . . . . . . . . . 12

Behler, Gregory Alan . . . . . . . . . . . . . . . . 10

Bowman, Victor . . . . . . . . . . . . . . . . . . . . . 9

Bristow, Kyle James . . . . . . . . . . . . . . . . . 11

Calcatera, Thomas B. . . . . . . . . . . . . . . . . . 9

Counard, Allen J. . . . . . . . . . . . . . . . . . . . . 9

Dardas, Timothy J. . . . . . . . . . . . . . . . . . . . 7

Dolenga, Michael D.. . . . . . . . . . . . . . . . . . 9

Foley, Patrick Anthony. . . . . . . . . . . . . . . . 8

Geibel, Karen R. . . . . . . . . . . . . . . . . . . . . . 5

Goulder, Jeffrey J.. . . . . . . . . . . . . . . . . . . 12

Hackney, Randy J. . . . . . . . . . . . . . . . . . . . 7

Hengeveld, Jeffrey S. . . . . . . . . . . . . . . . . 12

Herman, Gregg H. . . . . . . . . . . . . . . . . . . . 7

Ihrie, A. Dale III. . . . . . . . . . . . . . . . . . . . . . 5

Jarzyna, John . . . . . . . . . . . . . . . . . . . . . . . 5

Massaquoi, Hans J.. . . . . . . . . . . . . . . . . . . 9

Muawad, Elias . . . . . . . . . . . . . . . . . . . . . 10

Neumann, Melissa . . . . . . . . . . . . . . . . . . . 6

Nofar, Brandon . . . . . . . . . . . . . . . . . . . . . . 5

Oliver, Alyson L. . . . . . . . . . . . . . . . . . . . . . 5

Peterson, Richard P. II . . . . . . . . . . . . . . . . 9

Schwartz, Nicholas. . . . . . . . . . . . . . . . . . . 9

Stempien, Eric . . . . . . . . . . . . . . . . . . . . . 6,8

Vincent, Michael A. . . . . . . . . . . . . . . . . . 12

Zay-Gotay, Reinaldo. . . . . . . . . . . . . . . . . . 5

Cases

Brown v. Makowski . . . . . . . . . . . . . . . . . . 9

Bullman v. MIC General

Insurance Corp. . . . . . . . . . . . . . . . . . 10

Cherry v. N. Georges Inc. . . . . . . . . . . . . . . 5

Cohen v. Jaffe Raitt Heuer &

Weiss, P.C. . . . . . . . . . . . . . . . . . . . . . 12

Derush v. Wininger. . . . . . . . . . . . . . . . . . . 6

Haddad v. Beaumont

Hospital-Dearborn . . . . . . . . . . . . . . . 9

Miller v Tomita . . . . . . . . . . . . . . . . . . . . . . 7

The New Collins Corporation v. Juzyk . . . 5

Walsh v. Canton Township . . . . . . . . . . . 11

Wolf v. Great Lakes Renovations, LLC . . . 8

Courts

Federal. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Lapeer County . . . . . . . . . . . . . . . . . . . . . . 5

Macomb County . . . . . . . . . . . . . . . . . . . . . 5

Shiawassee County . . . . . . . . . . . . . . . . . . 7

Washtenaw County . . . . . . . . . . . . . . . . . . 8

Wayne County . . . . . . . . . . . . . . . . . . . . . . 9

Experts

BARIATRIC SURGERY

Poplawski, Steven M.D. . . . . . . . . . . . . . . . 8

BLADDER

Sarle, Richard M.D.. . . . . . . . . . . . . . . . . . . 9

GENERAL SURGERY

Chapman, William Henry Harrison M.D. . .8

OB-GYN

Goldstein, Ethan M.D. . . . . . . . . . . . . . . . . 9

Injuries

abdomen. . . . . . . . . . . . . . . . . . . . . . . . . . . 9

arthroscopy. . . . . . . . . . . . . . . . . . . . . . . . 10

back and neck. . . . . . . . . . . . . . . . . . . . . . 10

December 2017www.verdictsearch.com16


Michiganeditor in chief

Glenn Koch

senior editorCarol Scott

assignMent editorsCalvin Brice, Philippe Dupre, Ryan Kasemeyer

reporterMargi Banner

director-operations, database & Web adMinistration

Robert Benjamin

sales directorJames Gault

graphic designersWNS Global Services

Verdictsearch Michigan 120 Broadway, 5th Floor, New York, NY 10271

(800) 832-1900

VerdictSearch Michigan © 2017 ALM Media Properties, LLC. All rights reserved.

Annual subscription rate is $425.

For subscription inquiries, call 1-800-832-1900

For advertising & reprint inquires, call 1-866-546-0564 or email [email protected]

To report a verdict or settlement, go to: www.VerdictSearch.com

120 Broadway, 5th Floor • New York, NY 10271-1101

Bill Carter, President/CEO

Lenny Izzo, President/Legal Media

David Saabye Chief Digital Officer

Molly Miller Chief Content Officer

Dana Rosen, SVP/General Counsel

Erin Dziekan Vice President Human Resources

No portion of this publication including copying may be reproduced without prior written consent of the Publisher. You may obtain

consent by contacting VerdictSearch at 1-800-832-1900.

VerdictSearch is a registered trademark of ALM Media Properties, LLC. Copyright © 2017. All Rights Reserved.

Index

reporting procedure: The case reports in this publication are based on leads gathered from various sources, including submissions from attorneys, court dockets and articles appearing in ALM publications or on news wires.

We begin the reporting process by speaking to an attorney involved in the case and preparing a draft report. We then attempt to contact counsel for all parties via fax and phone. If an attorney does not respond by press time, we note this in the published text. Otherwise, we incorporate all comments we receive, subject to editing for style, clarity, grammar, brevity and sense.

In addition to the amount awarded by the jury or judge, reports include, where applicable, the plaintiff’s “net” recovery, arrived at after factoring in: plaintiff’s comparative liability as well as the liability assigned to previously settling defendants; high-low agreements; amounts paid by settling defendants or set-offs of said amounts; stipulated damages not submitted to the jury; punitive damages, interest, and attorney fees and costs if awarded by judge following verdict (otherwise in gross award); post-trial remittitur or additur and the impact of trebling and statutory caps.

bladder, perforation/rupture . . . . . . . . . . 9

burns, Taser. . . . . . . . . . . . . . . . . . . . . . . . 11

closed head injury . . . . . . . . . . . . . . . . . . 11

contusion . . . . . . . . . . . . . . . . . . . . . . . . . . 5

decreased range of motion. . . . . . . . . . . . 6

emotional distress . . . . . . . . . . . . . . . . .9,11

face . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5,11

fistula. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

fracture, fibula . . . . . . . . . . . . . . . . . . . . . . 5

fracture, leg . . . . . . . . . . . . . . . . . . . . . . . . 5

fusion, lumbar . . . . . . . . . . . . . . . . . . . . . . 6

gastric bypass . . . . . . . . . . . . . . . . . . . . . . . 7

head. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

herniated disc at L4-5 . . . . . . . . . . . . . . . . 6

herniated disc, lumbar . . . . . . . . . . . . . . . 6

laceration . . . . . . . . . . . . . . . . . . . . . . . . . 11

pins/rods/screws . . . . . . . . . . . . . . . . . . . . 5

rotator cuff, injury (tear). . . . . . . . . . . . . 10

scar and/or disfiguremen . . . . . . . . . . . . . 9

shoulder . . . . . . . . . . . . . . . . . . . . . . . . . . 10

soft tissue . . . . . . . . . . . . . . . . . . . . . . . . . 10

stricture. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

sutures. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

ulcer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Insurers

Auto-Owners Insurance Co. . . . . . . . . . . 10

Coverys . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Esurance Insurance Services, Inc.. . . . . . . 6

MIC General Insurance Corporation. . . . 11

Judges/Neutrals

Allen, David J. . . . . . . . . . . . . . . . . . . . . . . 10

Berg, Terrence G. . . . . . . . . . . . . . . . . . . . 11

Connors, Timothy P. . . . . . . . . . . . . . . . . . . 8

Curtis, Daphne Means . . . . . . . . . . . . . . . . 9

Ewell, Edward Jr. . . . . . . . . . . . . . . . . . . . . 9

Holowka, Nick O. . . . . . . . . . . . . . . . . . . . . 5

Marlinga, Carl J. . . . . . . . . . . . . . . . . . . . . . 5

Servitto, Michael . . . . . . . . . . . . . . . . . . . . 6

Steeh, Geroge Caram. . . . . . . . . . . . . . . . 12

Stewart, Matthew J. . . . . . . . . . . . . . . . . . 7

Topics

Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Bariatric surgery. . . . . . . . . . . . . . . . . . . . . 7

Breach of contract . . . . . . . . . . . . . . . 5,8,12

Civil rights . . . . . . . . . . . . . . . . . . . . . . . . . 11

Construction . . . . . . . . . . . . . . . . . . . . . . . . 8

Dram shop. . . . . . . . . . . . . . . . . . . . . . . . . . 5

Excessive force . . . . . . . . . . . . . . . . . . . . . 11

Foreign object. . . . . . . . . . . . . . . . . . . . . . . 9

Fraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Gynecological surgery . . . . . . . . . . . . . . . . 9

Intersection. . . . . . . . . . . . . . . . . . . . . . . . . 9

Legal malpractice. . . . . . . . . . . . . . . . . . . 12

Medical malpractice . . . . . . . . . . . . . . . . 7,9

Motor vehicle . . . . . . . . . . . . . . . . . . . 6,9,10

Negligent service of alcohol . . . . . . . . . . . 5

Negligent treatment . . . . . . . . . . . . . . . . . 7

No-fault case . . . . . . . . . . . . . . . . . . . . .6,10

Parked car . . . . . . . . . . . . . . . . . . . . . . . . . 10

Police as defendant . . . . . . . . . . . . . . . . . 11

Premises liability . . . . . . . . . . . . . . . . . . . . 5

Professional negligence . . . . . . . . . . . . . 12

Real estate transactions . . . . . . . . . . . . . . 5

Rear-ender . . . . . . . . . . . . . . . . . . . . . . . 6,9

Restaurant . . . . . . . . . . . . . . . . . . . . . . . . . 5

Search and seizure . . . . . . . . . . . . . . . . . . 11

Serious impairment . . . . . . . . . . . . . . . . . 10

Surgical error . . . . . . . . . . . . . . . . . . . . . . . 7

Third-party benefits . . . . . . . . . . . . . . . . . 6

Underinsured motorist . . . . . . . . . . . . . . . 9



IN PRINT, DIGITAL, AND INTEGRATED MEDIA.

On the winning side of a case reported in VerdictSearch?When you or your firm makes the news with a Featured Verdict,

spread the word with an official Plaque and Badge.

Showcase yourself at your best with promotional products. Demonstrate to clients and colleagues that you get results with a report of your “win” in a reputable news source.

With your plaque and website “Badge” you can:

•DISPLAYin your office and reception areas.

•HIGHLIGHTYOUREXPERTISEwith proven success in a particular type of case

•BOOSTMORALEand energize staff, improve recruitment and motivate others with impressive recognition

•CREATE“BUZZ”about a major verdict or settlement featuring your firm.

•REACHAWIDERAUDIENCEby adding volume prints for:

• client mailings• press kits• e-mail

• web pages• client presentations• conference handouts

120 Broadway, 5th Floor New York, NY 10271 • 877.227.3382

Not a “Featured Verdict,” no problem. We can customize an alternative layout.

For more information & PricingContact ALM Reprints at 877.227.3382 or [email protected]

www.verdictsearch.com/plaques-and-reprints

*Plaque size to be determined based on word count.

11.5” x 14”*

14” x 21”*

SETTLEMENT $7,400,000

CASE Kenden A. Murray v. 502-12 86th Street LLC; The

TJX Companies Inc. d/b/a T.J. Maxx; Schimenti

Construction Co.; Schmenti Construction Co. Inc.;

& Pioneer General Construction Co. LLC, No.

13691/11

COURT Kings Supreme

DATE 3/13/2016

PLAINTIFF

ATTORNEY(S) Stephen J. Murphy, Block, O’Toole & Murphy,

LLP, New York, NY

David L. Scher, Block, O’Toole & Murphy, LLP,

New York, NY

DEFENSE

ATTORNEY(S) Mark J. Dolan, Napierski, VanDenburgh,

Napierski & O’Connor, L.L.P., Albany, NY

(502/12 86th Street LLC, TJX Cos.)

William C. Lamboley, Fabiani Cohen & Hall,

LLP, New York, NY (Schimenti Construction Co.

LLC)

Karen A. Ondrovic, Boeggeman, George & Corde,

P.C., White Plains, NY (Bonland Industries Inc.)

None reported (Pioneer General Construction Co.,

LLC)

FACTS & ALLEGATIONS On April 29, 2011, plaintiff Kenden

Murray, 38, a union-affiliated installer of sheet metal, worked

at a construction site that was located at 502 86th St., in the Bay

Ridge section of Brooklyn. Murray was modifying a commercial

air-conditioning unit that was located on a building’s roof. While

he was attempting to remove a panel that was affixed to the unit,

he fell off of a steel beam that was situated some three feet above

the roof’s surface. Murray landed on the roof, and he claimed that

he sustained injuries of his back, a knee, his neck and a shoulder.

Murray sued the premises’ owner, 502/12 86th Street LLC; the

premises’ tenant, TJX Cos. Inc.; the construction project’s general

contractor, Schimenti Construction Co. LLC; and another one of

the project’s contractors, Pioneer General Construction Co., LLC.

Murray alleged that the defendants violated the New York State

Labor Law.

Schimenti Construction and TJX impleaded Murray’s employer,

Bonland Industries Inc. Schimenti Construction and TJX alleged

that Bonland Industries controlled and directed Murray’s work

functions. They sought contractual indemnification.

Pioneer General Construction did not answer the summons, and

Murray’s counsel did not pursue the claim against it. The matter

proceeded against the remaining defendants.

Murray claimed that the air-conditioning unit’s panel could

not have been accessed without standing on the beam, which was

slightly less than 6 inches wide. Murray’s counsel contended that the

incident stemmed from an elevation-related hazard, as defined by

Labor Law § 240(1), and that Murray was not provided the proper,

safe equipment that is a requirement of the statute.

Murray’s counsel moved for summary judgment of liability. The

motion was unopposed and granted. The third-party claim was also

decided via summary judgment. Bonland Industries was obligated to

indemnify Schimenti Construction and TJX. The matter proceeded

to damages.

INJURIES/DAMAGES arthroscopy; decreased range of motion; disc

protrusion, cervical; epidural injections; fusion, lumbar; herniated

KINGS COUNT Y

CONSTRUCTIONLabor Law — Workplace — Workplace Safety — Slips, Trips & Falls

Worker claimed rooftop fall caused injuries of spine, knee

October 17, 2016

as published in

NEW YORK disc at L4-5; herniated disc at L5-S1; hypertrophy; knee surgery;

lateral meniscus, tear; leg; physical therapy; shoulder; tendinitis/

tendinosis Murray completed his workday without having sought medical

attention. After three days had passed, he presented to a doctor. He

claimed that his back, his left leg, his left shoulder and his neck were

painful. He was referred for further evaluation.

Murray ultimately claimed that he sustained a tear of his left knee’s

lateral meniscus, herniations of his L4-5 and L5-S1 intervertebral

discs, and trauma that produced a protrusion of his C5-6 disc. He

further claimed that his left shoulder sustained trauma that led

to hypertrophy of the shoulder’s acromioclavicular joint. He also

claimed that the shoulder developed tendinosis. He claimed that

he later developed pain that radiated to his left leg, from his back.

Murray’s treatment began with physical therapy. The treatment

was typically rendered three times a week. The treatment is ongoing,

though its frequency has decreased to weekly intervals.

On Oct. 6, 2011, Murray underwent arthroscopic surgery that

addressed his left shoulder. On March 8, 2012, he underwent

arthroscopic surgery that addressed his left knee. He subsequently

underwent administration of two epidural injections of steroid-

based painkillers. In September 2013, he underwent a pair

of surgeries that involved fusion of the anterior and posterior

regions of his spine’s L5-S1 level. On Feb. 16, 2016, he underwent

implantation of a device that provided pain-relieving stimulation of

his spine. Murray claimed that the device produced minimal relief.

Murray further claimed that he suffers residual pain, that he

suffers a residual diminution of his back’s range of motion, that

he suffers a residual diminution of his left knee’s range of motion,

that he suffers a residual diminution of his left shoulder’s range

of motion, and that he suffers a residual diminution of his neck’s

range of motion. He also claimed that his residual effects prevent

his resumption of work.

Murray sought recovery of past and future medical expenses, past

and future lost earnings, and damages for past and future pain and

suffering.

Defense counsel contended that Murray did not sustain a

significant injury, given that Murray worked during the aftermath

of the accident and that three days passed before Murray sought

medical attention. The defense’s expert orthopedist submitted a

report in which he opined that Murray exaggerated his symptoms.

The defense’s expert spinal surgeon submitted a report in which

he opined that Murray did not sustain a traumatic injury of the

cervical region, that Murray’s lumbar injuries were degenerative

conditions that predated the accident, and that Murray can resume

work. Defense counsel claimed that Murray underwent chiropractic

treatment after a 1993 motor-vehicle accident that was the subject

of a prior personal-injury lawsuit filed by Murray.

RESULT The parties negotiated a pretrial settlement. Bonland

Industries’ insurer agreed to pay $7.4 million.

INSURER(S) Selective Insurance Group Inc. for Bonland

Industries

PLAINTIFF

EXPERT(S) Kristin K. Kucsma, M.A., economics, Livingston,

NJ (did not testify)

Edwin F. Richter, M.D., physical medicine,

Stamford, CT (did not testify)

Douglas C. Schottenstein, M.D., neurology, New

York, NY (treating doctor; did not testify)

Rohit B. Verma, M.D., orthopedic surgery, Great

Neck, NY (treating doctor; did not testify)

DEFENSE

EXPERT(S) Peter D. Capotosto, M.S., C.R.C., vocational

rehabilitation, Rochester, NY (did not testify)

Richard Lechtenberg, M.D.,

neurology, Brooklyn, NY (did not

testify)

Jane D. Mattson, Ph.D., life-care planning,

Norwalk, CT (did not testify)

Jeffrey Passick, M.D., orthopedic surgery,

Brooklyn, NY (did not testify)

Sondra J. Pfeffer, M.D., radiology,

New York, NY (did not testify)

Jeffrey M. Spivak, M.D., spinal surgery, New

York, NY (did not testify)

EDITOR’S NOTE This report is based on information that was pro-

vided by plaintiff’s counsel. Pioneer General Construction’s counsel

was not asked to contribute, and the remaining defendants’ counsel

did not respond to the reporter’s phone calls.

–Jack Deming

October 17, 2016

W W W. V E R D I C T S E A R C H . C O M

120 Broadway, 5th Floor, New york, Ny 10271 • 1.877.257.3382 • www.almrepriNts.com • © 2017 alm media properties, llc. all rights reserved. Further duplicatioN without permissioN is prohiBited. #061-07-17-03

Decision $442,795

case Tucker Taylor v. Llewellyn Werner, No. SC121454

court Superior Court of Los Angeles County, Santa Monica

JuDge Nancy L. NewmanDate 10/27/2016

Plaintiffattorney(s) Dale E. Motley, Ogden & Motley,

Los Angeles, CA

Defenseattorney(s) Llewellyn Werner, pro se

facts & allegations In 2010, plaintiff Tucker Taylor began serving on the board of directors of a company with which Llewellyn Werner was involved.

Werner previously requested that Taylor serve on the board, and Taylor allegedly agreed under certain conditions. As a result, Taylor served on the board from 2010 to 2012.

In 2012, Taylor was sued based on his position as a member of the board. The suit was bought by a limited liability company that was owned by the former Chief Executive Officer of the company. The former CEO allegedly owned more than 10 percent interest in the company that involved both Taylor and Werner. When Tucker tendered the claim for defense, he learned that the company’s directors and officers liability insurance policy contained an exclusion for claims brought by 10-percent shareholders.

Although the insurer defended under a reservation of rights, Taylor was forced to defend himself and incur attorney fees. Although Taylor ultimately prevailed in the

litigation, the case went to the Court of Appeal before Taylor could stop paying attorney fees.

Taylor sued Werner, alleging breach of contract.Taylor claimed that he agreed to serve on the board of

directors on the condition that he would have no financial exposure and that the company would have adequate D&O liability insurance, which would indemnify him from losses or advancement of defense costs in the event of a legal action for alleged wrongful acts while he was acting in his capacity as a director and officer. Taylor further claimed that Werner agreed to those conditions, but failed to ensure the company had adequate insurance.

Plaintiff’s counsel argued that Werner breached an oral agreement, which provided that if Taylor served on the board, then Taylor would not have any financial exposure and that the company would have adequate D&O insurance.

Werner, who appeared pro se, denied ever making any such agreement with Taylor.

inJuries/Damages Taylor incurred attorney fees as a result of defending himself in the 2012 lawsuit against the company where he served on the board. Thus, he sought recovery of the attorney fees he incurred in defending himself.

result Judge Nancy Newman found that Werner breached the contract he had with Taylor. She also determined that Taylor’s damages totaled $442,794.70.

eDitor’s note This report is based on information that was provided by plaintiff’s counsel. Llewellyn Werner was not asked to contribute.

–Priya Idiculla

los angeles count y

corPorationsOfficers’ and Directors’ Liability — Insurance — Coverage — Contracts

Defendant broke promise to have adequate insurance: plaintiff

February 6, 2017

as published in

w w w. v e r D i c t s e a r c h . c o m

120 Broadway, 5th Floor, New york, Ny 10271 • 1.877.257.3382 • www.almrepriNts.com • © 2017 alm media properties, llc. all rights reserved. Further duplicatioN without permissioN is prohiBited. #061-04-17-10

California

120 Broadway, 5th Floor, New York NY 10271

Periodical Postage

PAID at East Islip NY and Additional Mailing Offices

ThE Michigan TRiaL REPORTER Michigan

Documents

Transcript of ThE Michigan TRiaL REPORTER Michigan