Putting the law into perspective.

2012-01-26T11:01:00.001-05:00

If a subcontractor improperly installs something and someone is injured as a result, the subcontractor cannot get out of liability by saying they were just working for the general contractor.

In this consolidated appeal, the court held that based on the Michigan Supreme Court's recent decision in Loweke, the defendant-JCS Fireplace was not entitled to summary disposition. Thus, the court reversed the trial court's order granting JCS Fireplace summary disposition. Plaintiff-Burns lost his home to a fire caused by an improperly installed fireplace on the lower level of his home. He contracted with the original builder, defendant-KW Yoder Construction, to rebuild the home. Yoder subcontracted the fireplace installation to JCS Fireplace. The newly constructed home was destroyed by fire. "An investigation revealed the cause of the fire to be heat generated by the first floor fireplace, with the fire originating within the wood hearth extension of that fireplace." Burns and plaintiff-United Services Automobile Association Casualty Insurance Company (his insurer) sued Yoder and JCS Fireplace. JCS Fireplace successfully moved for summary disposition, arguing that plaintiffs' claims sounded strictly in negligence and, in keeping with Fultz, it owed no duty to plaintiffs. In granting JCS Fireplace's motion for summary disposition, the trial court explained that the only reason it did so was because Fultz compelled this result. In Loweke, the Supreme Court adopted the reasoning of Davis and held "'that a contracting party's assumption of contractual obligations does not extinguish or limit separately existing common-law or statutory tort duties owed to noncontracting third parties in the performance of the contract.'" While the court would normally remand for the trial court to reconsider the motion in light of Loweke, it concluded it was clear that, had the trial court not felt compelled to follow what it perceived to be a conclusion necessitated by Fultz, it would have applied the Davis reasoning and denied JCS Fireplace's motion. Reversed and remanded.

Slip and fall on ice

2012-01-26T10:53:00.001-05:00

If the snow or ice is visible to a casual observer there is not case against the property owner, and everyone has a duty to watch where they step. Even if the ice cannoit be seen, the property owner must somehow be on notice that it is there to be held responsible for slip and fall injury. In the following case, the lawyer did not present the appropriate evidence.

The court concluded that the evidence created a fact question as to whether an average person of ordinary intelligence would have been able to discover the danger (ice in a parking lot) and risk upon casual inspection. However, the court agreed with the defendant that the plaintiff failed to present any evidence that defendant had actual or constructive notice of the icy condition. Thus, the court reversed the trial court's order denying defendant's summary disposition motion and remanded for entry of summary disposition in defendant's favor. Plaintiff was employed by a contractor to defendant and worked the night shift (11:00 PM to 7:00 AM) on defendant's premises. On 12/12/07, as part of his usual practice when arriving for work, he parked his car in the first parking spot in the first row because the building parking lot was empty at night. "After parking, plaintiff walked diagonally across the parking lot directly to the rear entrance of the building. He did not see or encounter any ice or slippery conditions on his way to the building." About two hours after arriving for work, he left the building either to smoke a cigarette or for something to do with his lunch pail (which he kept in his car). While he was walking back to the building, he slipped and fell to the ground. He was still in the parking lot, somewhere between 10 to 15 feet from his car. "Only after falling did plaintiff feel ‘wet and ice' and realize that he had slipped on ice." While the defendant argued on appeal that it was not liable for any of plaintiff's injuries because there was no question of fact that the danger was open and obvious, the court disagreed. Only two witnesses testified as to the patch of ice. "Both witnesses agreed that the parking lot was free from snow. Plaintiff testified that he did not see the ice even though he had walked through that same area at least twice earlier that night." A security employee of defendant (D) "testified that he saw the ice patch 'as we were walking out there' when plaintiff was leading him to the ice." However, the court noted that D "was walking out to the parking lot with the sole purpose of investigating plaintiff's reported fall." Thus, looking at D's testimony in a light most favorable to plaintiff, it was easy to conclude that D "was not merely casually, or in an offhand manner, inspecting the premises - instead, a logical inference is that he was actively looking for ice to see what caused plaintiff's fall." The court could not conclude that defendant was entitled to summary disposition on the basis the hazard was open and obvious. However, as to notice, while plaintiff tried to show that (1) defendant negligently caused the formation of the ice patch by the way it salts the parking lots and (2) the sheer size of the patch (8 to 10 feet) was enough to put it on notice, the court found both arguments unpersuasive. The driver who applies salt to the lots admitted that his method of salting when the lot is full of cars prevented the immediate areas on the sides of the parked vehicles from receiving any salt. However, the record showed that after snow fell on the afternoon of 12/11/07, the contractor salted the aisles of the full parking lot and returned later that night when the lot was empty to fully plow and salt the entire lot. Plaintiff also failed to show that the ice formed in a spot that normally would be unsalted during a daytime salting. As to the size of the patch, since no one knew how long it was present, there was no evidence that defendant or its salting contractor had actual or constructive notice of the ice patch.

Auto accident drunk driving

2012-01-26T10:50:00.001-05:00

In this case the attorney filed the wrong law suit and the client lost their case. The lawyer you choose is very important.

Concluding that intoxication could not be removed as the key factor from the common law negligence claim asserted by the plaintiff-estate, and that the trial court properly determined that the estate's claim fell within the Dramshop Act, the court affirmed that trial court's order granting summary disposition in favor of the defendants. The estate's decedent and two friends were patrons at the defendant-bar and grill. The decedent and her friends were asked to leave after they became visibly intoxicated. They left the premises without the decedent's car keys. An unidentified bar employee later found the keys. When the decedent and her friends, still visibly intoxicated, returned to the bar to find her keys, the bar employee returned the keys. The decedent drove away from the premises, lost control of her vehicle, and was involved in a fatal accident. The estate claimed that the action was based in negligence because it was related to defendants' conduct of giving car keys to an intoxicated person, not to the actual selling, giving or furnishing of alcohol. However, the court concluded that any analysis of this claim hinged "on the duty that a dram shop that provided the intoxicants owed to the visibly intoxicated person." If intoxication was not considered in this claim, then the question became - "is there a common law duty to refrain from returning keys to the vehicle's lawful owner. It is axiomatic that there is no duty to withhold keys from an unintoxicated owner of a vehicle."

Slip Fall

2012-01-24T09:32:00.001-05:00

When giving notice to a governmental agency you must be very specific or your case may be dismissed.

Holding that the plaintiff did not sufficiently clarify the exact location of the pothole until after the statutory notice period expired, the court concluded that the trial court was bound to dismiss her claim. Thus, the court reversed the trial court's order denying the defendant-City's summary disposition motion and remanded for entry of summary disposition in the City's favor. Plaintiff left a saloon located on Michigan Avenue in the City and walked to the side of the building, which faces St. Lawrence Street. She turned onto St. Lawrence, where she had parked her vehicle, tripped on a pothole in the St. Lawrence Street roadway, and broke her ankle. She submitted written notice to the City about her injury 17 days after her accident, describing the site as "a defective street located in front of" the saloon. She also enclosed photos depicting the defect. Plaintiff sued the City 137 days after her accident, asserting that her claim fell within the highway exception to governmental immunity. She alleged that she was injured while walking on the public sidewalk at or near the saloon when "she tripped over a defective sidewalk/pavement." Plaintiff did not specify that the pothole was on St. Lawrence Street until her deposition 228 days after her accident. The court noted that she misidentified the defect's location in her initial notice and thus, clearly did not provide a "specific description of the location." This rendered her notice defective. Further, the complaint was filed outside the 120-day notice period, so plaintiff could not rectify the deficiency of her initial notice via the complaint. The complaint also did not provide an accurate "exact location" for the alleged defect, since the complaint asserted that plaintiff tripped on a sidewalk, not the roadway, and described the location as at or near the saloon on Michigan Avenue. "The City had no notice that the pothole was actually located on St. Lawrence Street, rather than on Michigan Avenue or an adjacent sidewalk, until" plaintiff's deposition, which was conducted 108 days after the statutory notice period expired. "Absent the requisite notice, the City was immune from liability and plaintiff was precluded from seeking judicial relief." The court rejected her argument that the photos provided to the City with her initial notice sufficiently supplemented her written description to specify the exact location of the defect. One photo depicted a pothole on a side street very near the intersection with a main highway, but it did not include a street sign or any other identifying feature. There was no way to determine the name of the street on which the pothole was located from the photo. A second photo depicted the sign in front of the saloon, but did "nothing to delineate the name of the side street on which the pothole is located." The third photo depicted "a focused view of the pothole alone." While it was useful in specifying the exact nature of the defect, it did nothing to "specify the exact location."

Car accident Ambulance

2012-01-23T09:03:00.003-05:00

Ambulance's have to be careful too. This ambulance sped through an intersection and caused an accident.

Rejecting the defendant-City's argument that the accident did not "result from" the defendant-ambulance driver's (Lewis) alleged negligence because the plaintiff's vehicle struck the ambulance, rather than vice versa, the court concluded that the trial court properly denied the City summary disposition on this basis. Further, the court held that the trial court properly determined that there was an issue of fact for trial as to whether Lewis operated the ambulance within the statutory SOC governing the operation of emergency vehicles. Thus, the court affirmed the trial court's order denying the City summary disposition. Lewis was dispatched regarding a domestic situation and traveling southbound in a residential neighborhood. "When he slowed the ambulance at an intersection, he saw plaintiff's vehicle traveling westbound on the cross street." He proceeded through the intersection without coming to a complete stop, believing there was enough distance between the vehicles for plaintiff to stop before hitting the ambulance. However, when the front of the ambulance was halfway through the intersection, "Lewis noticed that plaintiff was not attempting to stop. He then accelerated, hoping to quickly pass through the intersection and avoid a collision, but the front of plaintiff's vehicle struck the rear of the ambulance." Plaintiff asserted that she first saw the ambulance just after it entered the intersection, she tried to stop but was unable to do so, and slid into the rear of the ambulance. The court concluded that the City's "result from" argument stemmed from "an overly narrow reading" of Robinson and Curtis. "In neither Robinson nor Curtis were the government vehicles physically involved in the collisions. Thus, defendant's reliance on those decisions as attaching any significance to which vehicle struck the other is misplaced." Further, the City's argument was "at odds with the plain statutory language stating that government agencies are liable for injuries ‘resulting from' the negligent operation of a government vehicle. MCL 691.1405 makes no distinction between which vehicle strikes the other." The City also argued that MCL 691.1405 did not apply because Lewis operated the ambulance in accordance with the SOC governing the operation of emergency vehicles. While the plaintiff contended that the court lacked jurisdiction to decide this issue, the court held that it had jurisdiction because the effect of the trial court's ruling was to deny the City's governmental immunity claim. The court concluded that "MCL 257.603 and MCL 257.706(d), when read together, require that an emergency vehicle's siren be activated only when reasonably necessary to warn others of the vehicle's approach." Thus, whether Lewis activated the siren was not dispositive of whether he operated the ambulance within the statutory SOC. "Rather, the issue is whether Lewis activated the siren when its use was reasonably necessary under the circumstances." A rational jury could find, based on plaintiff's version of events, that the circumstances warranted use of the siren because she did not see the ambulance until she was unable to stop. On the other hand, a rational jury could find, based on Lewis's recollection of events, that activating the siren was unnecessary because plaintiff had time to stop but failed to slow down before striking the ambulance

Mold exposure cleanup safety

2012-01-20T11:31:00.002-05:00

This is a basic guide to cleanup of mold. A professional in mold clean up should be consulted for proper clean up.

1. Set up initial engineering controls, including isolation barriers, negative pressure system, and drop cloths necessary to protect the structure during initial response activities.

2. Remove standing water.

3. Assess condition of contents, set up appropriate decontamination structure, and remove contents from the mold remediation work area.

4. Finalize engineering controls for removal of building materials harboring fungal growth. Make sure the setup can accommodate any unexpected hidden growth.

5. Work with the air flow. Generally this means that the project should be set up so that mold impacted materials closest to the decontamination unit are removed first. Work then progresses from the decon unit toward the negative air machine.

6. Remove porous materials with visible growth. Use work practices that minimize the generation of dust. This may include the use of hand tools or power tools to which a HEPA vacuum can be attached.

7. Enforce work procedures that emphasize a clean-as-you-go approach. Whenever possible, as they are removed from walls and ceilings, cut building materials in sections small enough to fit directly into waste bags. Bag all waste immediately rather than allowing it to pile up on the floor. Change negative air machine and vacuum filters often enough to keep them operating at optimum levels.

8. Seal waste bags using the gooseneck technique. Move waste bags into the decontamination unit where the exteriors of the bags are cleaned or they are double bagged prior to movement through unprotected areas of the building.

9. Determine the remediation approach for semi-porous materials that have visible fungal growth. Depending on the condition of the material some items, such as rotted wood studs, may have to be removed for later replacement. Other semi-porous materials that have not suffered structural damage can be cleaned by scraping, sanding, scrubbing, or blasting. Whenever possible, use tools in conjunction with a HEPA vacuum. Specialty tools, such as the Scravac, are specifically designed for scraping contamination directly into a vacuum nozzle. Make sure that the cleaning technique does not exceed the capacity of the engineering controls. Blasting, for example, may require a substantial increase in the amount of negative pressure and airflow as compared to a standard mold remediation work area.

10. Clean all non-porous materials that have visible fungal growth. This usually involves damp wiping or HEPA vacuuming.

11. Using the HEPA sandwich technique, clean the entire isolated work area, including ceilings and non-impacted walls. If there are any bacterial concerns because of gray or black water, incorporate appropriate antimicrobial chemicals into the damp wiping step.
12. If necessary, dry the remaining material in the work area through dehumidification. Be careful that airflow from fans and dehumidifiers does not impact the integrity of the isolation barriers.

13. Conduct a thorough visual inspection of the isolated work area. Use the white glove test to ensure that the area is free of dust. Re-clean as necessary.

14. Conduct post-remediation evaluation sampling. Compare the results to the company's standards for mold remediation (see box for suggested post-remediation sample criteria). Re-clean and re-sample if necessary.

15. Coordinate post-remediation verification sampling by a pre-selected third party. Evaluate the results in comparison to the criteria that were agreed upon at the beginning of the project (see box for suggested post-remediation sample criteria). Re-clean and re-sample if necessary. If the building owner chooses to forgo verification sampling, move to the next step.

16. If included as part of the remediation project, apply antimicrobial coating to exposed structural members to prevent future mold contamination. Follow the manufacturer's instructions for application. Allow all surfaces to dry thoroughly.

17. Have the HVAC system cleaned following NADCA guidelines.

18. If included as part of the project, replace and refinish building materials that were removed during remediation.

19. Remove isolation barriers and remediation equipment. Unless specifically exempted in the remediation contract, repair any damage to finish materials caused by the isolation barriers

Underage drinking suicide

2012-01-20T11:29:00.001-05:00

If a minor drinks in your home and then is hurt, you may not be liable if you didn't allow or know the minor drank in your home.

Concluding, inter alia, that the plaintiff-PR failed to establish a prima facie case of negligence based on a statutory or ordinance violation, the court held that the trial court properly granted summary disposition in favor of the defendants. Plaintiff's decedent, Jonathon, died from an apparent suicide. His body was found hanging from a rafter in a basement workshop in defendants' home. The previous evening, Jonathon and defendants' son Andrew, who were both under the age of 21, were consuming alcohol during a party at defendants' home while defendants were away. Defendants returned home after midnight, discovered that a party had been held at their house and that alcohol was served and consumed without their permission, and reprimanded Andrew and the other boys who were still present. Defendants also called Jonathon's parents to inform them that he and several others had been drinking at their home without their permission. Because Jonathon was intoxicated, it was decided that he could stay at defendants' house to "sleep it off." In the morning, another boy who spent the night at defendants' house saw Jonathon get up, use the bathroom, and return to the basement where he had been sleeping. Shortly thereafter, some boys discovered Jonathon hanging from a cord in the basement. The ME listed the cause of death as suicide. Plaintiff alleged that defendants negligently allowed underage minors to consume alcohol in their home, and that Jonathon's alcohol consumption was a proximate cause of his suicide. There was "no evidence that defendants gave either written or oral permission for, or approval of, the consumption of alcohol while defendants were away from the house. Nor was there evidence of any conduct by defendants that would have caused a reasonable person to believe that defendants had given permission for, or approval of, the consumption of alcohol at their home while they were away." Plaintiff relied on evidence that defendants were aware that Andrew and his friends had consumed alcohol at their house in the past. "However, that evidence also showed that the prior alcohol consumption was not permissive and that defendants took corrective action to prevent the consumption of alcohol in their home by Andrew and his friends." Before defendants left their home on the evening of 5/30/08, there had not been any alcohol consumption by Andrew and his friends at the house since 11/07. Also, there was no evidence that defendants had any knowledge on May 30 that Andrew or his friends planned to consume any alcohol after defendants left that evening, that Andrew and his friends possessed any alcohol when defendants left the house, or that there were any plans for a gathering at which alcohol would be furnished or consumed. The evidence showed that the alcohol that was consumed that evening was furnished, without defendants' knowledge, by others who did not arrive until several hours after defendants left the house. When they returned home and discovered that a party had been held without their permission, "they became upset, began reprimanding those who were still present, began making everyone clean up, and called other parents to let them know that their children had been drinking without permission." It "was beyond genuine factual dispute that defendants did not engage in any conduct that would cause a reasonable person to believe that they had given permission for, or approval of, the consumption of alcohol at their house while they were away." The evidence did not support a finding that they violated MCL 750.141a(2) or a township ordinance. The court also held that "plaintiff's action was properly dismissed because it was beyond genuine factual dispute that defendants' conduct did not proximately cause Jonathon's suicide." Affirmed.

Dog Bite

2012-01-20T11:27:00.001-05:00

If you knew the dog and there was no history of agression, you may be out of luck suing the owner.
Concluding that the defendants owed no duty to the plaintiff, the court held that the trial court properly granted summary disposition in defendants' favor in this negligence action. Plaintiff, a 16-year old resident of a manufactured home community owned and operated by defendants, visited another residence in the community, owned by the Ys. Plaintiff had been to the residence several times without incident, as the Y's teenage son, H, was his best friend. However, on that particular date, the Y's "pit bull dog suddenly and without provocation bit plaintiff in the face, causing him serious injuries that required stitches and left him scarred." Plaintiff sued defendants asserting that they were negligent in, primarily, failing to warn him of a prohibited, dangerous dog, and protect him from the same. On appeal, plaintiff contended that genuine issues of fact existed as to whether defendants knew of the dog's presence in the Y's manufactured home, and whether defendants knew that the dog had dangerous propensities such that they owed plaintiff a duty to warn of and to protect him from the dog. While the trial court found that defendants owed no duty to plaintiff concerning the dog that bit him, plaintiff asserted that this conclusion was reached through the misapplication of pertinent case law to the facts of this case. Thus, he argued that the trial court erred in its ultimate conclusion. The court disagreed. Plaintiff testified that he had known H since he was in 5th grade and that H's family had owned the dog since that time. Plaintiff testified that he had been to H's house on an almost daily basis and had always seen the dog. According to plaintiff, the dog was usually outside, but it had also been loose in the house when he was there. He testified that he had pet the dog a couple of times before and was not afraid of it. He testified that on the date of the incident, he was sitting on the floor petting the dog and that the dog seemed happy to be petted, but as he withdrew his hand from petting the dog, the dog suddenly bit him in the face. "As in Szkodzinski, no evidence was presented to the trial court indicating that this dog had a vicious nature or that defendants had knowledge of any such nature. Plaintiff was well aware of the dog's presence and had been for many years." There was no indication that he reported the dog's presence or complained of the dog to defendants. "Instead, he repeatedly went to the dog's location, interacted with the dog and, according to his testimony, was not afraid of the dog." The only basis plaintiff presented for imputing knowledge of the dog's vicious propensities was found in the written "Rules and Regulations" issued by defendant-Colonial Acres. Plaintiff stated that "since defendants set forth in their Rules and Regulations that certain breeds of dogs ‘may be dangerous to others in the community' they acknowledged that pit bulls have dangerous propensities." However, defendants did not specify that certain dogs may be dangerous to the community. Rather, they simply prohibited certain dog breeds from being brought into the community. Assuming, without deciding, that defendants were aware of the dog's presence, the court held that plaintiff must still have established that defendants were aware that this particular dog had a vicious nature, and he failed to present any evidence establishing or even creating a question of fact as to such awareness. Considering all of the Braun factors as a whole, the court concluded that no actionable duty of care existed in this case. Affirmed.

Lips fall. If you can see it and trip on it, you probably are at fault pursant to Michigan Law.

2012-01-19T10:26:00.001-05:00

Holding, inter alia, that any potential protections afforded by MCL 554.139 had no effect in this appeal, and that the danger posed by the broken tile on the top of the stairs was open and obvious, the court affirmed the trial court's order granting the defendant (the company hired by the property owner to maintain the rental property) summary disposition. Plaintiff alleged that she was injured by tripping over defective floor tiling at the top of a flight of stairs in her rental apartment, causing her to fall down the stairs. She alleged that defendant was negligent at common law and under the MHL and MCL 554.139. The court noted that MCL 554.139 "imposes covenants in the lease between a landlord and tenant." Any protection arising from the statute "is purely contractual in nature." Any "negligence or premises liability claims are unaffected since ‘any remedy under the statute would consist exclusively of a contract remedy.'" Plaintiff also sought to rely on provisions of the MHL to impose a statutory duty on defendant as the owner's agent. "However, nearly all of the specific sections cited by plaintiff solely refer to the duties of an ‘owner.'" The court concluded that MCL 125.533(1) eliminated any doubt as to who must comply with the MHL - "‘The owner of premises regulated by this act shall comply with all applicable provisions of the act.'" While plaintiff was correct that MCL 125.538 refers to "owner or agent thereof," this provision did not impose a statutory duty on the agent. "MCL 125.538 provides that, ‘It is unlawful for any owner or agent thereof to keep or maintain any dwelling or part thereof which is a dangerous building as defined in [MCL 125.539].' MCL 125.539, in turn, defines ‘dangerous building' as having one or more serious defects." Plaintiff did not argue or explain how her apartment met any of the conditions set forth in MCL 125.539. Thus, her reliance on MCL 125.538 and 125.539 was misplaced. Since the statutes plaintiff cited did not apply, the court held that defendant did not owe her any statutory duty. Thus, defendant could avail itself of all common law defenses, including the open and obvious doctrine. Like the plaintiff in Corey, "plaintiff admitted that she was aware of the broken tile on the top of the steps and decided to use the steps in any event." Further, the court held that there were no special aspects making the open and obvious condition unreasonably dangerous or effectively unavoidable. "Although plaintiff was required to traverse the steps several times a day, the hazard was not effectively unavoidable." A photo taken by plaintiff clearly showed that the hazard was located on the left side of the stairway opening, leaving about 75% of the width free of any hazard. The court noted that plaintiff admitted to regularly using the stairs "‘several times per day'" without tripping for over two years.

Slip Fall open and obvious

2012-01-16T15:15:00.001-05:00

Issues: Premises liability; Slip and fall on "floral debris"; Whether there was a genuine issue of material fact that an "open and obvious" condition caused the plaintiff's fall; Lugo v. Ameritech Corp.; Bertrand v. Alan Ford, Inc.; Whether there were "special aspects" giving rise to a "uniquely high likelihood" of harm

Court: Michigan Court of Appeals (Unpublished)

Case Name: Preston v. Loving Care Flowers, Inc.

e-Journal Number: 50398

Judge(s): Per Curiam – Wilder, Talbot, and Servitto

Holding that there was no genuine issue of material fact that the condition causing the plaintiff's fall was open and obvious, and contained no special aspects giving rise to a uniquely high likelihood of harm, the court reversed the trial court's order granting in part plaintiff's motion for reconsideration. Plaintiff was invited into a back office at the defendant-flower shop for a business meeting with the shop's owner. To reach the office, he had to walk through a work room where floral arrangements were made. Plaintiff stated that there was nothing on the floor when he walked to the office. However, when he tried to leave after a 30 to 45-minute meeting, he saw that the floor was covered in "floral debris." He slipped and fell as he tried to walk through the space, and sustained a torn rotator cuff. Defendant moved for summary disposition, arguing that the condition that caused the fall was open and obvious, with no special aspects that removed it from the open and obvious doctrine. The trial court initially granted defendant summary disposition, but on plaintiff's motion for reconsideration, determined that a question of fact existed as to whether the condition contained a special aspect such that defendant could be liable. Plaintiff testified at deposition that it appeared there were leaves, petals, and stems "scattered all over" the floor as he retraced his route to leave the building, so he tried to watch his step, but he slipped and fell. "Plaintiff testified that he did not ask anyone to remove the debris from his path and that he ‘didn't really consider' going around the work bench the opposite way but instead retraced his steps the way he entered the business." He also provided an affidavit in which he swore that he could not have avoided the debris no matter which way he walked around the work bench. Taking plaintiff's assertions as true, the court concluded that defendant was entitled to summary disposition, for two reasons. "First, plaintiff clearly admitted to seeing the floral debris and further indicated that two employees were present and near him when he fell. Plaintiff could easily have asked the employees to remove the debris or for assistance in navigating around it, but did neither." The court concluded that if he was effectively "trapped" by the debris, it was "reasonable to place a duty upon him to ask for readily available assistance before attempting to navigate over the hazard." Second, "the critical inquiry in Lugo is ‘whether there is evidence that creates a genuine issue of material fact regarding whether there are truly "special aspects" of the open and obvious condition that differentiate the risk from typical open and obvious risks so as to create an unreasonable risk of harm . . . .'" The court held that floral debris "on the floor near the workstation of a floral shop is a ‘typical' open and obvious danger, like a typical pothole in a parking lot. There is nothing unusual about the presence of floral debris in that setting and, more importantly, nothing suggests that the debris at issue created an unreasonable risk of harm despite its open and obviousness." Reversed and remanded.

Bus accident exception for City

2012-01-06T10:39:00.001-05:00

The court held that even if the facts were exactly as asserted by the defendant-City Department of Sanitation, and the garbage truck was temporarily stopped on the road when the collision occurred, the temporary stops on the road to pick up garbage are included in the meaning of "operation" of a garbage truck and the motor vehicle exception to government immunity applied. Thus, the court concluded that summary disposition under MCR 2.116(C)(7) was not warranted where the motor vehicle exception would apply regardless of whether the facts were as plaintiff contended, or as defendant contended. The court affirmed the trial court's order denying the City department's motion for summary disposition. The case arose from a collision between a school bus and a garbage truck that injured the minor plaintiff, a passenger on the school bus. On the day of the incident, an employee of the City department (D) and his partner (S) were collecting garbage. D drove the truck, making periodic brief stops in the right lane to allow S to collect the garbage and put it into the back of the truck. As they collected garbage, a school bus approached from behind on the left side of the garbage truck, and then according to D, as it passed the truck, merged into the lane in which the garbage truck was sitting. D did not feel the impact, but recalled that he thought the bus nearly hit the truck. D and S continued their garbage route. About two hours later, D got a call from his supervisor, who told him that he was involved in an accident with the school bus. D said that the truck was running, and ready to proceed to the next stop, but it was not moving at the time of the collision and that the bus ran into the garbage truck. S described the events slightly differently as he was at the back of the truck, but believed that the truck was stopped at the time of the collision. The bus driver (B) stated that he felt a bump as he drove past the garbage truck. A student on the bus told him that the bus was hit. He continued to drive the bus, but stopped and inspected the bus - it was damaged in the rear. He wrote an accident report that day, in which he stated that the truck "started to take off and clipped the bus." The minor plaintiff also said that the truck moved forward and hit the bus. Several students on the bus wrote statements. Some statements supported plaintiff's contention that the garbage truck was moving at the time of the accident. Plaintiffs sued. Defendant raised the defense of governmental immunity. The trial court denied defendants' motion for summary disposition based on the defense due to the conflicting testimony as to whether the truck was moving at the time of the incident. The parties disputed whether the use of a garbage truck fell within the meaning of "negligent operation." They also disputed whether the requirement that the truck be in operation required the truck to have been moving at the time of the collision, or whether a stationary vehicle may be operating within the meaning of the statute. Affirmed.

Mold Exposure update

2012-01-06T10:19:00.001-05:00

My building has the distinction of being an on-going laboratory for the study of how certain fungi behave in indoor environments with individual unit ventilators. I have tried to get speciation data from three main sources of fungal contamination in the building: visible mold in books, visible mold on ceiling panels and spores in floor dust in water-damaged rooms. I have concentrated the microscopy studies and ERMIs on the rooms that impact me the most. On the first floor, that would include the custodial room, the Dark Room, an art room, a science room and my own classroom. On the second floor, there is the Library, the 2nd floor hallway and a foreign language room.

The mold species present in this building must be very happy. They have a continuing supply of water, dust and dirt to nourish them. The humidity is above 60% several days a week in the spring and fall, and most of the time during the summer. The filters on the unit ventilators are no threat because they cannot catch and remove spores from the indoor air environment. Fungicides are not used in the building, so fungal-eating bacteria are the only natural predators facing the spores (unless you include me).

The following is a summary of the major fungal players at the middle school where I teach. I will specify whether the species of mold appears on the EPA Group One or Group Two lists, Dr. Jack D. Thrasher’s list of signal molds (“species of concern”) [Research Committee Report on Diagnosis and Treatment of Chronic Inflammatory Response Syndrome Caused by the Exposure to the Interior Environment of Water-Damaged Buildings, Ritchie C. Shoemaker MD, Laura Mark MD, Scott McMahon MD, Jack D. Thrasher PhD, Carl Grimes HHS, CIEC, July 27, 2010, page 19], and the list of nine target organisms that Dr. Ritchie C. Shoemaker relies on in assessment of WDB links to human illnesses.

Aspergillus niger [EPA Group One, Thrasher, Shoemaker] – Niger has shown up in significant amounts in several water-damaged library books, in floor dust in the 2nd floor library and the adjoining workroom. Niger has also shown up in floor dust in the custodial room ten feet from my classroom in two different ERMIs. The library book The Arabian Nights had 22,882 spores/mg.
Aspergillus fumigatus [EPA Group One, Thrasher, Shoemaker] – Fumigatus was the major toxigenic mold found in the custodial room ten feet from my classroom. Art teacher Christine Goldman’s hall duty in the year that she got sick was in front of this room. Even though the school system’s industrial hygienists were BCPS consultants on my 504 (and accommodation # 11 required the industrial hygienists to remediate the mold in the custodial room), they refused to come out to the school to inspect the room in 2009 or the first five months of 2010. By May of 2010, the visible mold bloom was eight feet tall and four feet wide. The undercover remediation of this room by two facilities personnel resulted in the injury of a student in May of 2010 [see chapter 20 of Surviving Mold]. In November of 2010, six months after the room had been scrubbed and repainted, the two industrial hygienists visited the room (apparently for the first time) and wrote that they could not remediate the mold in the custodial room because none was there!
Aspergillus penicillioides [EPA Group One, Thrasher, Shoemaker] – Penicillioides has been found in my classroom, the custodial room, an art room and one water-damaged library book. The amount in my classroom was small and probably gained access to my room on the flat mops used by the custodial staff or through normal air circulation. Until I complained in my application for 504 accommodations, the normal custodial procedure was to mop up all of the dust with a long flat dry dust mop and then shake out all of the collected dust in the classroom doorway before going into the next room to “clean.” This cleaning procedure was in fact putting tiny bacterial and fungal particulates back into the indoor air environment on a daily basis. After I filed for accommodations, the custodial staff was equipped with smaller mops with washable microfiber cloths (although they didn’t always use them). In the fall of 2011, the custodial department stopped using the microfiber cloths altogether and returned to the old flat dust mops.
Aspergillus sydowii [EPA Group One] – Sydowii has shown up in water-damaged library books and in floor dust in several rooms on both floors of the school. It has not established itself on any of the water-damaged ceiling panels.
Eurotium amstelodami [EPA Group One, Thrasher] – Eurotium has not shown up in any of the tested books, but it has shown up in floor dust in each room tested on both floors of the school. More ominously, it was one of several molds that managed to travel beyond the radius of the water-damage in the library and establish itself in a visible mold colony on a water damaged ceiling panel in a foreign language classroom during the summer of 2010.
Aureobasidium pullulans [EPA Group One] – Pullulans has been found in floor dust in every room tested. It does not appear to have much appetite for water-damaged books in the school. It was the leading Group One mold in my classroom. A visible colony of Aureobasidium developed on a ceiling panel in a science classroom around the corner from my classroom over the summer of 2011.
Cladosporium sphaerospermum [EPA Group One] – This species of fungus was present in floor dust in my classroom, Christine Goldman’s art room, the custodial room and in the library. There was a minor colony found in The Arabian Nights (550 spores/mg). In September of 2011, a visible colony was found on a ceiling panel in a science classroom. The number of spores/swb present was 84,755. In October of 2011, small amounts were found on a ceiling panel in a storeroom in the school’s cafeteria kitchen.
Penicillium purpurogenum [EPA Group One] – For several years, purpurogenum only showed up in miniscule amounts in floor dust. Then unexpectedly in 2010, it established itself in a water-damaged textbook originating in a foreign language classroom and the next year in a water-damaged ceiling panel in the same room. In fact, it made-up one third of the Group One molds found in that textbook. This is a good illustration of how an opportunistic fungus can take advantage of the humid indoor air environment in a water-damaged building and proliferate when provided with a suitable food source.
Penicillium crustosum [EPA Group One] – Crustosum had 1,139,745 spores/mg in The Arabian Night making it the largest Group One colony in this library book. Its influence has not spread beyond the library.
Penicillium brevicompactum [EPA Group One, Thrasher] – Brevicompactum established a significant colony in the book The Arabian Nights (4,878 spores/mg), but it too has failed to spread beyond the confines of the library.
Penicillium glabrum [EPA Group One] - There were 390 spores/mg of dust in the first floor custodial room. It’s influence has not spread beyond that room.
Paecilomyces variotti [EPA Group One] – Paecilomyces loves paper. It established huge colonies in several water-damaged library books. There were 475,651 spores/mg in The Arabian Nights. This is another one of those molds whose influence has not been felt outside of the contaminated library. Small amounts have been found in floor dust.
Chaetomium globosum [EPA Group One, Thrasher, Shoemaker] – Chaetomium is probably the most dangerous mold currently infesting the indoor air environment of the school. There were 10,331 spores/mg in The Arabian Nights. It was also present in significant amounts in two other library books. Since then, Chaetomium has found some fertile areas on the second floor and seems to be thriving. It made its expanding presence known by establishing itself on a water-damaged ceiling panel outside of the library. I went into the 2010-2011 school year thinking that I needed to keep off the second floor as much as possible to avoid inhaling spores from this dangerous mold. Then to my surprise, in December of 2010, it turned up in a visible mold colony in a Spanish textbook used by a 7th grade boy in my classroom!!! I taught five periods of 8th grade American history in my classroom in the fall of 2010 and a Spanish teacher “floated” into my room one period each day. All of my efforts to avoid exposure to Chaetomium were undone by a 12-year old who managed to get his textbook wet in early November of 2010. [When I saw Dr. Shoemaker in June of 2011, I showed him the blood lab for C4a that Dr. Colleen Pietrowski had ordered the previous winter. It was over 23,900 (ten-times above normal). When Dr. Shoemaker expressed his concern, I replied that despite all of my precautions, I had managed to expose myself to some serious fungi during the school year including Chaetomium.]
Alternaria alternata [EPA Group Two] – Alternaria does not seem to like paper in the school, but it does like the cellulose in ceiling panels. It is found in floor dust on both floors of the school. Alternaria was one of the molds that managed to establish a visible colony on the ceiling panel in the hallway outside the library, on the ceiling panel in the Spanish classroom and in the main lobby of the school. In October of 2011, speciation of a sample found on a ceiling panel in a storeroom next to the cafeteria kitchen revealed 5,019 spores/mg.
Cladosporium cladosporioides (types one and two) [EPA Group Two, Thrasher] – It does not seem to like books in the school, but it is in floor dust in multiple rooms. Both types showed up in a visible colony on a ceiling panel in a science classroom in September 2011. Cladosporioides Type One is the second most-prevalent Group Two species found in floor dust in my classroom. The presence of this mold demonstrates the failure of the filters used in the unit ventilation system to trap outdoor molds that are being sucked into the building by the air intake system.
Cladosporium herbarum [EPA Group Two, Thrasher] - It has not established itself in books or ceiling panels, but it is in floor dust in multiple classrooms including my own. It was the most prevalent Group Two mold in the contaminated custodial room.
Epicoccum nigrum [EPA Group Two, Thrasher] – Epicoccum was the most-prevalent species of Group Two mold in dust in my classroom, the library and an art room. It has not yet established any visible colonies in books or ceiling panels in the school.
Mucor amphibiorum [EPA Group Two] – This species of mold was found in library books with minor amounts in floor dust from the library. Its influence has not spread beyond the library.
Penicillium chrysogenum [EPA Group Two, Thrasher] – Chrysogenum likes books (1,712,919 spores/mg in The Arabian Nights) and the cellulose in multiple ceiling panels.
Aspergillus ustus [EPA Group Two] - This mold is a major player in the school. It has been found in multiple books (including 12,850,920 spores/mg in The Arabian Nights) and on multiple ceiling panels. In October 2010, it was the predominant mold in the visible mold colony in room 212 (an astounding 64,087,560 spores/ml liquid). In September of 2011, it was found on a visible colony on a ceiling panel in a first floor science room (85,764 spores/swb). In October of 2011, it was found on a visible colony on a ceiling panel in a storage room next to the cafeteria kitchen (860,439 spores/mg). Like Alternaria alternata, it appears to be an extremely opportunistic outdoor fungus that has latched onto water-damaged books and ceiling panels in the school and then reproduced at an astounding rate. As a moisture-loving, paper and cellulose-munching fungi, Aspergillus ustus has found an ideal home in the hot humid indoor air environment of my building.

I drew several important conclusions from the Group One data that affected my 2010 application for accommodations under Section 504 of the Rehabilitation Act. The most important one was that that my room was probably one of the least impacted rooms in the T-wing of the building (where the majority of the classrooms are located). Dr. Shoemaker noted that I had to keep my room as safe as possible and that would involve obtaining a HEPA 0.3 air purification system. Of course, teachers cannot hide out in their classrooms forever. You have to walk through the lobby with the water-damaged ceiling panels to get to the office. You have to walk down the contaminated second floor hallway to get to the grade-level team meetings. I also realized that vacations would only be short-term reprieves to the chaos going on in my innate immune system. Re-exposure was going to be my constant companion – after Christmas vacation, after Easter vacation, after summer vacation – year-after-year-after-year.

The ERMI mechanism invented and patented by the EPA has given ordinary teachers and workers a major tool in assessing the overall indoor health of the building where they work. One of the industrial hygienists in our school system once said that the ERMI numbers were normed by the EPA for a house and not a school; therefore, the data that I was collecting in the school building was basically useless. He was referring to both the ERMI scores and the speciation data identified through the PCR process. I would agree that an ERMI score in a building with over 100 rooms, closets and storage areas is not a universal value on the mold burden of the entire school; however, it is pseudo-science to ignore the speciation data (and accumulating medical data from the building’s occupants). Art teacher Christine Goldman had an abnormal haplotype and worked in a classroom with Aspergillus penicillioides, Eurotium amstelodami and Aspergillus niger present in dust samples, and she did hall duty each day in front of a custodial room with Aspergillus fumigatus – no wonder she got sick! Corporate pseudo-science attacks on two levels: have the insurance doctor deny the validity of the medical data while the industrial hygienists and building engineers deny the validity of the environmental evidence – all to the detriment of the employees (and children) exposed to the poor indoor air quality conditions.

The interpretation of the Group 2 mold data in my building has been an enigma for me. When developing the ERMI Index, the EPA was trying to objectively describe the mold burden in a home. 26 species associated with homes with water damage were chosen for the Group One list. Ten species that were found in homes independent of water damage were chosen for the Group Two list. I do not think that the EPA considered the possible toxicity of the Group 2 molds when it made its list. Scientific data on possible toxin-formers on the Group 2 list is still in its infancy. Further, how safe is a school with extraordinarily high Group 2 spore counts for an eleven or twelve-year old student with an underdeveloped immune system and severe allergies/asthma. How many times must a student be transported to the hospital by ambulance before someone links the high Group 2 counts with repeated incidents of asthma? Aspergillus ustus is not regarded as particularly toxigenic in the current literature, but at 64,087,560 spores/ml liquid, even minor toxins and metabolites from this mold could cause havoc on the respiratory system of an asthmatic or allergic student. As for Cladosporium cladosporioides (types 1 and 2), Cladosporium herbarum, Epicocum nigrum and Penicillium chysogenum, all of which are present in my school, what impact are they having on the students? Are they toxin-formers? Are they a serious factor in causing respiratory ailments in the building? Students – keep those inhalers handy!

A few other molds of note have appeared in small quantities including Aspergillus flavus, Aspergillus versicolor and Stachybotrys chartarum [EPA Group One, Thrasher, Shoemaker]. At some point, they may become a serious health risk given the current state of the humid indoor air environment of the building, so they are also molds of concern to watch out for in future ERMI’s. My nightmare scenario would be a return of toxigenic species of mold to the custodial room near my classroom. Aspergillus fumigatus may be gone from that room, but other opportunistic molds lie in wait. This dark humid room has wet floors, damp unpainted wood at floor level and no mechanical or natural air ventilation (not even a window). It is an invitation for an opportunistic mold to settle and proliferate.

Stachybotrys, with its sticky spores, may have helpers in schools like mine – helpers with the potential to walk through colonies in floor dirt and then transfer spores to other areas of the school at night. This will allow me to transition into my next segment in Mold Wars – the double R’s – roaches and rodents.

Medical malpractice Trial ... determine SOC prior to trial

2012-01-06T10:17:00.001-05:00

In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals' judgment in a published case (see e-Journal # 46477 in the 8/2/10 edition), holding, inter alia, that the trial court correctly determined as a matter of law that the appropriate SOC was "family practice" because the defendant-physician was board-certified solely in family medicine. "Further, pursuant to MCL 600.2912a, the trial court properly allowed the jury to consider that standard of care in light of the facilities available to the defendant physician - an urgent care center, not an emergency medical facility." The court held that the trial court did not abuse its discretion in ruling that defendants' experts were qualified to provide SOC testimony under MCL 600.2169 because they satisfied the specific qualifications of MCL 600.2169(a)-(b). The court also concluded that the trial court did not abuse its discretion by excluding plaintiff's proposed document exhibits at issue for the reasons stated in the Court of Appeals dissent. "Contrary to the dissent's assertion, the trial court's error in waiting to establish the standard of care until after the proofs had closed is not ‘inconsistent with substantial justice.'" B, one of plaintiff's experts, testified that there was no difference between family practice medicine and emergency medicine. "Thus, under plaintiff's theory of the case, additional and perhaps distinct testimony" on the SOC for doctors specializing in family medicine was unnecessary. Further, the court concluded that the plaintiff "significantly contributed to the trial court's error" by arguing that the trial court should have used Woodard's "one-most-relevant-specialty" test to determine the physician was practicing emergency medicine and thus, should have been held to the SOC of an emergency medicine specialist. "Plaintiff should not be rewarded with a retrial simply because her faulty argument only half side-tracked the trial court." The court also determined that the trial court did not preclude plaintiff from presenting SOC testimony from a doctor specializing in family medicine. While "the trial court did not manage the standard of care or the expert qualification issues perfectly, its error did not prejudice plaintiff so as to make upholding the jury verdict ‘inconsistent with substantial justice' under MCR 2.613(A)." The court remanded the case to the Court of Appeals for consideration of issues plaintiff raised but the Court of Appeals did not address in its initial review.

The dissent stated that by "reversing the Court of Appeals' grant of a new trial, the majority ignores that the trial court waited until the close of proofs to determine the appropriate" SOC. "The trial court's error essentially nullified much of the expert testimony already heard by the jury, disqualified at least one expert who had already testified, and emphasized the testimony of defendants' experts over those of plaintiff." The dissent concluded that this error "rendered the trial so fundamentally deficient that a refusal to grant a new trial is ‘inconsistent with substantial justice.'" The dissent noted that there is no board certification available for family practice in an urgent-care center. Thus, the trial court's hybrid SOC violated Woodard. Further, if the applicable SOC was family medicine, then the trial court should not have allowed an emergency physician to testify as to the SOC under MCL 600.2169(1). Had the trial court conclusively ruled on the applicable SOC before trial, "plaintiff would have had at least some opportunity to secure another expert and focus the testimony solely on family medicine." Also, the dissent concluded that the trial court's jury instruction rendered irrelevant much of plaintiff's experts' testimony. The dissent would affirm the Court of Appeals result and remand for a new trial. However, the dissent would vacate the Court of Appeals' conclusion that emergency medicine was the applicable SOC and require that the governing SOC be determined before trial in order to give all parties a reasonable opportunity to prepare accordingly. The dissent would also affirm the Court of Appeals as to the admissibility of guidelines and internal policies.

Mold Exposure

2012-01-04T12:07:00.001-05:00

Dr. Shoemaker has devoted his life to finding the answer to this illness, and discovering how to help you. We are working to train physicians, with the goal of having physicians trained in Dr. Shoemaker's protocol located around the nation. SurvivingMold.com

continues to make many resources available to you to help you find the information you need. Sometimes you are the only way your doctor can be educated.

Auto accident is not slip fall

2012-01-04T11:54:00.000-05:00

The court held that plaintiff was not entitled to PIP benefits under the No-Fault Act because her injury did not arise out of the use of a parked vehicle under MCL 500.3106(1). Since the circumstances of plaintiff's injury were not included in any of the exceptions enumerated in MCL 500.3106(1), the defendant-insurer was not liable to pay benefits under MCL 500.3105(1). Thus, the court reversed the Court of Appeals' judgment affirming the trial court's denial of defendant's motion for a directed verdict and remanded the case to the trial court for further proceedings consistent with this opinion. Plaintiff was injured when she slipped and fell on a patch of ice while closing the passenger door of her vehicle. Plaintiff had placed a few personal items in the passenger compartment via the passenger door, stood up, and stepped out of the way of the door when she closed the door and fell. While she was in contact with the door of the vehicle at the time of her injury, she was clearly in contact with the vehicle itself, not with "equipment" mounted thereon. Thus, her injury was not "a direct result of physical contact with equipment permanently mounted on the vehicle . . . ." Further, before her injury, plaintiff had been standing with both feet planted firmly on the ground outside of the vehicle. She was entirely in control of her body's movement, and she was in no way reliant upon the vehicle itself. Thus, she was not in the process of "alighting from" the vehicle. At the time of her injury, plaintiff had already alighted. Also, because defendant did not owe benefits to plaintiff, its refusal to pay them was not unreasonable, and plaintiff was not entitled to attorney fees under MCL 500.3148(1).

Justices Kelly and Cavanagh dissented believing plaintiff was "alighting" from her vehicle within the meaning of MCL 500.3106(1)(c) when she was injured. Thus, they opined that the trial court correctly denied defendant's motion for a directed verdict on this issue. Believing that the Court of Appeals properly affirmed that decision, the Justices would have denied defendant's application for leave to appeal.

Justice Hathaway dissented and would have denied leave to appeal because she was not persuaded that the court should have taken any further action in this unique, fact-specific case that should have no precedential value.

Worker Compensation update

2011-12-16T12:33:00.000-05:00

In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment in a published case (see e-Journal # 46654 in the 8/26/10 edition) and reinstated the WCAC's order. The court held that the Court of Appeals erred in concluding that Aquilina remained valid after the 1985 amendments to the WDCA. The court concluded that in "contrast with the statutory mechanism in place at the time Aquilina was decided, the WCAC is now required to treat as conclusive the factual findings of the magistrate where those findings are ‘supported by competent, material, and substantial evidence on the whole record.'" Since the WCAC now must "give deference to the magistrate's factual determinations, and may no longer engage in de novo fact finding, a WCAC decision does not require a ‘true majority' ‘decision based on stated facts.'"

Justices Cavanagh and M. Kelly concluded that the Court of Appeals "did not clearly err in applying Aquilina under the facts of this case." While the 1985 amendments brought reforms to the WDCA, "as the Court of Appeals recognized, the review function of appellate courts remains the same." Even after the amendments, the court recognized in Holden "the importance of a ‘carefully constructed opinion by the WCAC' in facilitating appellate review." In this case, "as in Aquilina, a commissioner in the majority did not issue a separate opinion but, instead, concurred only in the result reached by the lead opinion." The justices would deny leave to appeal.

Justice Hathaway would grant leave to appeal because she believed the court "would benefit from plenary review of the issues before rendering a decision."

Slip and fall obvious

2011-12-16T12:32:00.000-05:00

Holding that the ramp on which the plaintiff fell constituted an open and obvious hazard, and there was also no genuine issue of material fact as to whether special aspects of the ramp created an unreasonably dangerous condition, the court affirmed the trial court's grant of summary disposition to defendants. Plaintiff argued that the trial court incorrectly ruled that the ramp on which she fell constituted an open and obvious hazard. Plaintiff further contended that if the hazard was open and obvious, special aspects made the condition unreasonably dangerous. The court has ruled that handicap ramps generally constitute open and obvious dangers. However, plaintiff cited the affidavit of Z to support her position. According to Z, the ramp did not comply with the MBC. Z specifically asserted that the ramp was steeper than specified by the MBC, the sides were not flared to allow proper drainage, and the whole ramp was painted instead of just the edges which would have made the ramp more noticeable and less slippery when wet. The court has ruled that a code violation is merely evidence of negligence, and "even when a hazardous condition results from a code violation, ‘[t]he critical inquiry is whether there is something unusual about [the alleged hazard] that gives rise to an unreasonable risk of harm.'" Were the court to accept that the ramp did not comply with the MBC, on casual inspection an average user of ordinary intelligence would nonetheless have noticed the alleged danger posed by the handicap ramp. Plaintiff testified that she had already walked up the ramp while on her way into The Salvation Army, so she had already observed the incline. Further, regardless whether water could accumulate on the ramp, plaintiff fell when the weather was clear and she did not testify that there was water on the ground. Thus, an average person, having recently walked on the ramp, would have been aware of the alleged danger it posed - the condition was open and obvious. Plaintiff claimed that, even if open and obvious, the ramp was unreasonably dangerous pursuant to Lugo. On the contrary, the alleged danger posed by the ramp was unlikely to cause a substantial risk of death or severe injury. Further, the ramp was clearly avoidable. Plaintiff admitted that she could have stepped off of the curb instead of walking down the ramp.

Surviving Mold Exposure

2011-12-16T12:30:00.001-05:00

Mold Wars - Part 2

Sources of Water Damage in a Building
by Lee Thomassen

[My school system provided a short report concerning water damage in my school to the Office of Civil Rights in 2011. Said report was obtained in a Freedom of Information Act request in October of 2011. On advice of Counsel, I am noting that it is the opinion of the school system that damage from water intrusions in the building has been minimal and has been dealt with appropriately. Several areas of the school that suffered water damage during the 2010-2011 school year were not reported to OCR. ]

The school that I work in has individual unit ventilators in each classroom with no universal air ventilation system in the overall building. Only the main office area has a forced air system for air conditioning and ventilation that uses duct work and operates throughout the year. Individual classroom unit ventilators handle the air intake and filtration. The units exchange air in the classroom with fresh air from the outside. This allows carbon dioxide to be removed from the classroom. In the old days before the units were installed in 2004, the indoor air environment would be saturated with CO2 by the end of the day. Drowsiness and headaches were the primary result. The units provide heat during the winter from hot water pipes attached to a boiler, but they do not provide air conditioning. The school is a sweltering furnace at the beginning and end of the school year. The custodial staff often works in 100 degree temperatures with 90 percent humidity during the summer months.

The unit ventilators have a filter that can catch large airborne particulates like dust. They cannot stop something as small as a mold spore or airborne bacteria. There are better filters available, but they are not purchased for teacher classrooms. It is the policy of the Dept. of Facilities to change the filters every three months. Prior to my complaints, they were replaced at my school every seven to thirteen months. Being the squeaky wheel has its advantages – my filters are now changed every two months! That does not preclude cheating – on August 19, 2011, my seventeen-year old daughter and I made a surprise inspection of my room. The date on the filter indicated that it had been changed on August 31, 2011, a date that was still twelve days in the future!

As an educator, I read Chapter 8 of Surviving Mold with particular interest (“The Belperons: A Family Adrift in a Sea of Ignorance”). The Belperons faced exposure to multiple toxins both at home and at school. On page 175, there are several important references to water-damage in schools. After a storm, “…carpet and building materials were being thrown out of the second floor…” to waiting dumpsters below. “In the second reference, “Pipes froze and burst, roofs leaked, and waste water holding tanks backed up.” A Nor’easter had torn away “…a portion of the roof flashing, only to reveal that significant sections of rain and ice barrier were never installed.” This is more information than most parents get about water damage. There is an unwritten rule in schools that parents are not to be informed about building issues that could affect the health of children. It is tantamount to treason for a teacher to confide information about an unhealthy building to a parent. Not that school systems actually have anything to worry about. It is my experience that most teachers in a school building are blissfully ignorant about the majority of indoor air quality issues.

The type of ventilation system in a building has a major effect on how widespread the damage will be. Universal ventilation systems in a water-damaged building tend to cause poor indoor air quality in a large area of the building. Without a universal air circulation system to facilitate the spread of spores and airborne bacteria, schools like mine tend to have localized areas of contamination.

As a teacher and an eye-witness, I will record what I have observed about the types of damage caused by water intrusions in my school building and how that damage was handled by the custodial and facilities personnel. As a rule of thumb, water intrusions have multiple points of entry in a water-damaged building. The following areas with water-damage are of particular concern in my building:

1. The main lobby and the gym lobby – sometimes it is hard to tell if ceiling panels are wet because of a hydrostatic leak related to an aging flat roof or a leaky sprinkler system or even pipe condensate. The lobby areas in my building have a combination of the first two. The flat roof is over fifteen years old, and a good storm can saturate a ceiling panel overnight. A gaping hole in the ceiling panel array with a large trash can underneath it is a good indication of a roof leak. We had three large trashcans in the lobby after Hurricane Irene swept through Maryland in August of 2011 (with additional trashcans on the second floor). Replacing a school’s roof is an expensive proposition. Likewise, shutting down and draining the pipes in the heating and sprinkler system is a major time-consuming procedure that can only be done during the sweltering summer months when the school is largely unoccupied. If the pipe joints have asbestos solder, federal AHERA regulations come into effect and that can cause a dramatic increase in the repair’s price tag. The Department of Facilities has provided a reservoir of replacement ceiling panels to “swap out” the damaged ones. When Maryland Governor Martin O’Malley, County Executive Jim Smith and MD State Superintendent Nancy Grasmick visited my school on November 11, 2009, over two-dozen water-damaged ceiling panels in the main lobby and gym lobby were “swapped out” prior to the visit (we even got additional cleaning staff that week!). In August of 2011, the policy of replacing water-damaged ceiling panels ceased. A dozen gaping holes in the ceiling panel array greeted parents during National Education Week, but it probably looked better than wet and water-stained ceiling panels. On November 21, when the parents were safely out of the building, the gaps were filled with new ceiling panels. A stack of unused ceiling panels sits in the abandoned boy’s shower room adjacent to the gymnasium for future swap outs. Needless-to-say, bacterial activity in the lobby has the potential to be a serious health issue for the students and staff.

2. The library and adjacent hallway – there was a major flood in the fall of 2005. A failed pressure test on the new heating system caused an improperly installed cap to blow. The huge photocopier below the pipe was destroyed by hundreds of gallons of water flowing unimpeded from the pipe. The second floor library, the library workroom and the book storage room were all damaged. The art room (119) and two adjoining work storerooms on the floor below had cascades of water flowing down the walls. The library has also had water intrusions caused by two leaky air conditioners. Until they were replaced with new energy efficient models in 2010, the two antiquated air conditioners would get books wet and create large puddles on the floor. The hallway outside the library has had several sprinkler pipe leaks as well. If anything shows signs of visible mold, whether it be a book or a ceiling panel, the evidence is removed from the building by environmental services personnel and disposed of off-site without writing any reports or collecting any scientific data. If the custodial department thinks that no one is looking, they will use subterfuge to deal with the problem in their own unique ways. In one instance in the spring of 2011, mold was scrubbed off a second floor ceiling panel in the hallway near the library by a custodian and the damaged panel was left in place. In other instances, mold-contaminated ceiling panels were quietly disposed of in the school’s dumpster without notifying the school’s environmental team or the Dept. of Environmental Services. In a more brazen instance that I wrote about in Surviving Mold, the mold under a sink unit in the library workroom was scrubbed clean by a custodian even though the school system’s industrial hygienists were en-route to the school to inspect it. You would think that the perpetrator would get in trouble for such a blatant destructive act of environmental evidence. Nope – inspecting the mold was just a formality. It was going to be declared harmless anyway.

3. The first floor custodial room, the Dark Room (the old photography room), the art and foreign language storeroom, and the boys bathroom – this cluster of four adjoining rooms has had a string of bad luck. A clogged drain in the custodial sink (shown below) backed up and overflowed three–times monthly throughout the 2009-2010 school year (and probably in multiple years before that).The water would go through the bottom of the wall and flood the adjoining art and foreign language storeroom and the boy’s bathroom. As if this bathroom did not have enough problems, a clogged pipe was causing a toilet to erupt like a geyser and overflow daily for six weeks in the spring of 2011. Then to add insult to injury that same spring, a roof leak funneled water into the Dark Room and destabilized the asbestos floor tiles. Three of these rooms are less than ten feet from my classroom! With three serious sources of water intrusion in such a compact place, the Department of Facilities had its hands full. Solutions that were done correctly include fixing the place on the roof where the new window construction was allowing water in. Plumbers had some success in 2011 in opening up the two clogged drains. The asbestos tiles were replaced in the Dark Room, a book room and the art/foreign language storage room. Despite these successes, the Custodial Room still has a heavy smell of dirt. My recommendation was that the top plank of the wet wooden shelving at floor level be pulled up to clean out any accumulated dirt (and mold), but that has not happened.

4. Classrooms – A second floor Spanish classroom had a small leak in the ceiling in the fall of 2010 (probably from a sprinkler pipe). There was no prior history of mold or water intrusions in this room, yet some of the most aggressive toxigenic molds in the school developed visible colonies in this classroom during that ill-fated fall season. Several first floor science classrooms had water stains develop on the ceiling panels in 2010 (probably from overhead pipes). Mold formed on a ceiling panel in an 8th grade science classroom during the summer of 2011. A second floor math room had a huge round trashcan next to the teacher’s desk to catch the water that flowed into the classroom following rainstorms. On back-to-school night, water was coming down into the trashcan even though it had not rained in three days. There must have been a reservoir of water trapped on the flat roof from clogged drains.

5. The Weight Room – This basement room holds the weight-lifting equipment used by the Phys-Ed Department and the local Recreation Center. In September of 2011, it flooded badly during Hurricane Irene and again during Tropical Storm Lee. It had flooded on previous occasions during the 2010-2011. There is a two inch riser with wet unpainted wood at floor level in this room. The Department of Facilities stationed two high powered fans in the room to help dry it out. It did a good job pushing humid air from one part of the room to another. On September 8, 2011, an industrial-sized snake “roto-rootered” the outside drain that was causing the stairwell to fill up like a bathtub and flood the weight room after every storm.

6. The School Kitchen – Mold developed on a wet ceiling panel in the food manager’s office during the summer of 2010. The damaged ceiling panel was surreptitiously disposed of by the school’s custodial staff on or about October 14, 2010. This remediation did not show up in the school system’s report to OCR. I did not learn of the mold contamination until after the event, so I was unable to affect a microscopy study or ERMI. The custodian who removed the panel was ordered not to tell anyone. The following Monday, she came to my room and told me. In fact, the entire night custodial staff was told on December 9 that they were not allowed to talk to me anymore. I know the exact date because three of them came to my room later that evening and told me. Ten months later in October 2011, I saw mold on a water-damaged ceiling panel in the kitchen and I got to it first. The majority of the sample was Aspergillus ustus, but interestingly, there were small amounts of Stachybotrys chartarum and Chaetomium globosum present in the mold sample.

7. Miscellaneous storage rooms and hallways with water-damaged ceiling tiles – There are places on both floors of the school which have water stains on the ceiling panels from leaking sprinkler pipes or the leaky flat roof. As bad as roof damage can be, leaking pipes on the first floor are equally worrisome because they can sustain fungal and bacterial growth throughout the school year. Leaky pipes can nourish a fungal colony even when the heating system lowers the humidity level below 60% for much of the winter. I check these rooms and hallways periodically for signs of mold growth.

This is the water damage that I am aware of and have been able to document since 2005 (additional water damage prior to 2005 is documented in Surviving Mold chapter 20). For all I know, I am only scratching the surface. One thing that I can be sure of – there are schools across the country with descriptions of water damage just like what you read here and in Surviving Mold. By keeping water damage a secret, there are parents of sick kids with environmental-based illnesses running from one doctor to another who are oblivious that there is anything wrong with their neighborhood school.

In an age of ever-shrinking facilities repair budgets, the issue becomes whether or not a school system can successfully deal with the aftermath of water intrusions so that they do not lead to the growth of bacteria and fungi that can be pathogens to human health. Parents expect school systems nationwide to protect the health of the children who have been entrusted into their stewardship. Budgetary and fiscal constraints can make that expectation moot. Should a parent suspect that the building is causing their kid to be sick, principals are armed with reports from facilities personnel noting that the building in question has been thoroughly examined X-number of years ago and it received a clean bill of health. Once a building gets an IAQ clean bill of health, the report is paraded around like it is written in stone and anyone who challenges it is considered a heretic.

One of our environmental personnel once told me and my former principal that our school had not had sustained any serious water-damage that could lead to the growth of toxigenic mold; therefore, there cannot be a mold problem within the building. It is a perverse form of self-serving logic – deny the existence of water damage and that allows you to deny the existence of species of mold, metabolites and bacteria that can be pathogens to human health.

The school system’s health office, however, made its own determination independent of the water-damage debate. It is their job to analyze the attendance in all of the schools on a yearly basis and compare them to each other. They were clearly concerned about the high rate of student absenteeism. According to their statistical analysis, my school was one of the top five sickest schools in the county during the 2009-2010 school year (and that is out of 175 schools and centers). Our road to bacterial and fungal perdition was paved with the absentee notes of our sick student population.

Worker Compensation coordination update

2011-12-15T09:33:00.001-05:00

On remand from the Supreme Court, the court affirmed the WCAC's decision, which affirmed a magistrate's decision holding that the defendant-SIF may not reduce its reimbursement to the defendant-Township (employer) to reflect the Township's unexercised right to coordinate benefits. The court held that Rahman supported the WCAC's conclusion, and there was no principled reason for distinguishing it. Plaintiff was employed full-time by GM and part-time as a Township firefighter. He was injured while working as a firefighter for the Township and temporarily unable to work at either job. The Township paid weekly wage-loss benefits to plaintiff at the maximum rate. Plaintiff also received benefits from a "sickness and accident" policy purchased by the Township. The Township did not reduce its payment of worker's compensation benefits to plaintiff pursuant to MCL 418.354(1). The Township deliberately chose not to coordinate the benefits for its own policy reasons. After paying the weekly wage-loss benefits to plaintiff, the Township sought reimbursement from the SIF pursuant to the procedure in MCL 418.372(1)(b). The SIF agreed to pay an amount it contended it would have owed if the Township had coordinated the sickness and accident benefits and thus reduced the weekly benefit that was apportioned between the Township and the SIF. The Township filed a petition to recoup the benefits it claimed the SIF owed. Relying on Rahman, the magistrate rejected the SIF's argument as to coordination and granted the Township's petition. The WCAC unanimously affirmed the magistrate's decision. The SIF argued on appeal that the WCAC erred in directing the SIF to reimburse the Township on the basis of the uncoordinated amount that the Township voluntarily paid. The "dual employment" provision of the WDCA governs the payment of weekly wage-loss benefits to an employee with dual employers. When the employee is injured while performing a job that pays 80% or less of his total average weekly wage, § 372(1)(b) provides a formula and procedure for the payment of the weekly wage benefits. The WDCA's provision governing the coordination of benefits was implicated in this case because of the benefits that plaintiff received from a "sickness and accident" policy the Township purchased. The SIF maintained that "the apportionment of liability in § 372(1)(b) should occur after the employee's weekly benefit amount is reduced through the coordination of benefits pursuant to § 354(1)." The court held that position was not consistent with Rahman, in which the SIF argued "that the amount it is required to reimburse the board [the injury-employer] should be calculated after plaintiff's pension is deducted from the total amount of weekly benefits due to the plaintiff on the basis of his employment with the board and the city." In rejecting that argument, the court focused on the plain language of § 354(1). While the SIF argued that Rahman was wrongly decided, the court was bound to follow that decision. Further, the court concluded that Rahman is consistent with the statutory language, and the SIF's position is not. The SIF argued that Rahman is distinguishable because it concerned coordination of a different type of benefit - pension benefits rather than benefits from a disability insurance policy. "But, both types of benefits are governed by § 354(1), and the statute

Medical malpractice expert musrt support all claims

2011-12-15T09:30:00.001-05:00

The court held, inter alia, that the trial court erred by denying the defendants' motion for partial summary disposition as to the plaintiff's allegations of malpractice occurring before 10/11/05, the 23 broadly-stated allegations of malpractice in her complaint that lacked expert support, and her allegations related to a lack of informed consent for the fat injection procedure. Genuine issues of material fact existed as to her claims concerning the exteriorization of the Becker port and failure to more quickly remove the Becker implant, and the trial court properly denied defendants' motion as to those claims. Plaintiff's claim that defendant-Smith improperly placed the implant at the time of the 7/06 surgery also remained a matter for jury determination. Plaintiff began treating with Smith, a plastic and reconstructive surgeon, on 5/26/04. According to the complaint, Smith diagnosed her with mammary hypoplasia and recommended bilateral augmentation mammoplasty. He did the surgery on 7/26/04. At the follow-up visit, he noted that there was a displacement of the right infra-mammary crease and applied Elastoplast tape to the area. Plaintiff underwent a second surgery on 3/4/05. Smith repositioned the right implant and increased the volume bilaterally. Then, "additional complications arose including the appearance of the right implant being higher than the left implant and the development of some abnormality, described variously in the records." An abscess also developed. On 4/12/05, Smith performed an incision and debridement in his office and prescribed an antibiotic for an infection in the breast. Because the infection persisted, Smith conducted surgery on 5/9/05, removing the right implant. After several follow-up visits and various "post-operative difficulties" plaintiff underwent another surgery. Smith placed a Becker implant in the right breast on 9/16/05. After the surgery, plaintiff again "developed complications including what appeared to be a discoloration on an area of the breast, erythema, and infection." On 9/22/05, she was admitted to the hospital for treatment with IV antibiotics. Smith tried to treat the infection "by opening an incision site near or about the Becker port, and by attempting to aspirate through the body of the breast." The parties agreed that on 10/11/05, Smith exteriorized the Becker port to allow for drainage. On 11/28/05, he conducted surgery to remove the right implant. Plaintiff recovered well after the removal and they agreed to wait several months before placing another implant. On 5/19/06, Smith decided it would be better to do a "fat injection," rather than install a new implant. Plaintiff signed a consent form authorizing Smith to inject fat into the right breast. She underwent another surgery of 7/14/06, where Smith placed a new implant in her right breast. Her last visit to Smith was on 7/18/06. Photographs after the final surgery showed significant "migration" of the right implant. Later, plaintiff saw another plastic surgeon. On 3/18/09, she was seen by Dr. I, a plastic and reconstructive surgeon. He performed corrective surgery on 4/14/09. According to plaintiff's expert, W, the surgery was "partially successful," meaning the appearance of the breast was improved and plaintiff was happier. But there was still a depression and some unevenness. Dr. W suggested further corrections for the appearance of the breast. She sued defendants on 9/18/07 alleging medical negligence. The court noted that plaintiff did not provide expert testimony for her allegations of malpractice pre-10/11/05 and some of her other claims lacked expert support, and held, inter alia, that the trial court should have granted defendants' motion as to those claims. Thus, the court affirmed in part, reversed in part, and remanded.

Divorce penalty for filing twice

2011-12-15T09:28:00.002-05:00

Since at a minimum, the plaintiff-wife and her attorney (appellant) were aware of the UK proceedings and reasonable inquiry into the state of those proceedings would have revealed that a divorce decree had already been issued by the UK court, the court held that the trial court did not clearly err in determining that sanctions were warranted under MCR 2.114 and MCL 600.2591. Further, given the itemized billing statement, the undisputed hourly rates, and the trial court's finding, the court found no abuse of discretion that defendant-husband reasonably incurred costs and expenses in the amount of $10,044.25 for defending this frivolous action. Plaintiff's divorce complaint was filed in the trial court on 4/19/10. On $/21/10 she obtained ex parte orders for parenting time and a restraining order as to the disposition of assets. However, defendant had filed for divorce in the UK, where the parties previously lived, on 2/15/09, and was awarded custody of their two children by order of the UK court on 6/10/09. An interim divorce was entered in the UK, which became absolute within six weeks. The complaint filed in the trial court was clearly frivolous because divorce proceedings had already taken place in the UK. The court noted that it was incumbent on plaintiff to verify the status of the UK proceedings before filing the complaint. Thus, the trial court did not err in determining that sanctions were warranted. Plaintiff did not dispute the reasonableness or the hourly rate of legal fees, rather she argued that defendant should have advised her of the resolution of the UK divorce and should have filed a motion to dismiss, rather then taking plaintiff's deposition and then filing a motion to dismiss. The court concluded that the record supported the trial court's finding that the attorney fees and costs incurred by defendant were reasonable. On 5/21/10, the trial court dismissed the divorce case in its entirety for lack of jurisdiction. Affirmed.

Insurance what you don't know

2011-12-15T09:28:00.001-05:00

Concluding, inter alia, that knowledge was not a prerequisite of the actual language of the insurance policy contract, the court affirmed the trial court's order granting the defendant-insurer summary disposition in this dispute as to coverage under a homeowner's insurance policy. The plaintiff-insured purchased homeowner's insurance from defendant for a rental property. He leased the property and later discovered that his tenants had moved out but continued to use the home to house at least 18 animals, primarily dogs. "The animals had urinated and defecated throughout the home, resulting in considerable damage." Plaintiff filed a property loss notice with defendant seeking coverage under the policy. Defendant sent him correspondence indicating that his policy precluded coverage based on an animal exclusion provision. Plaintiff sued. The trial court ruled for defendant based on the exclusionary policy language relating to animals. The policy provided that it did "not cover loss resulting directly or indirectly from . . . wear and tear, marring, scratching or deterioration . . . animals owned or kept by an insured or tenant[.]" Plaintiff argued on appeal, inter alia, that the animal exclusion provision required a landlord have actual knowledge that a tenant was retaining animals on the property. He contended that he was unaware the tenants kept animals at the house, contrary to their lease, and that the exclusion was unenforceable. The court concluded that while plaintiff argued that the term "kept" necessarily implies knowledge, this interpretation was "strained. While a definition of ‘kept' implies possession, it does not necessarily infer knowledge as the language of the exclusion encompasses ‘animals owned or kept by any insured or tenant.'" Plaintiff also argued that the exclusion did not apply because the property damage was attributable to the tenants' failure "to clean up the animal urine and feces over an extended period of time rather than the actual voiding by the animals in the residence." However, the court held that this argument was "insupportable based on the language of the exclusion," which precluded a claim for loss resulting "directly or indirectly" from "animals owned or kept by any insured or tenant."

no-fault insurance debate in Michigan

2011-12-14T15:46:00.001-05:00

Motorists who are seriously injured in accidents might face bankruptcy and not receive the medical care they need if the Michigan legislature passes a bill to eliminate no-fault auto insurance, say defenders of the no-fault policy.

However, a spokesman for the insurance industry said the unlimited medical coverage provided under no-fault insurance since 1973 is unaffordable, noting there’s a $1 billion deficit in a fund managed by the Michigan Catastrophic Claims Association. The $145 each vehicle owner pays under no fault coverage is allocated to the fund to cover medical costs for those permanently injured in crashes.

The proposed legislation will end lifetime medical coverage and allow motorists to buy additional coverage of $500,000 to $5 million. Beyond that, medical costs would be shifted to Medicaid. Proponents said eliminating no fault would cut Michigan auto insurance rates from 15 to 50 percent.

One patient, Milissa Louwaert, 40, of Dryden, said it would be wrong to eliminate no fault.

Without the extensive medical treatment she received, “there is no way I’d be at the functional level I am at now,” she said.

At age 24, she incurred a fractured skull and was in a coma for 17 days when the pickup she was riding in on I-75 at Caniff Avenue in Detroit was hit by a semi-trailer carrying 37 tons of steel. Her friend, the driver, had a concussion and fractured pelvis.

Both were taken to Detroit’s Receiving Hospital for treatment.

“If we had been any farther from the hospital, I would not have made it,” said Louwaert, a registered nurse who is married with two children.

Her head was split open six inches from behind her left ear, exposing her brain, she said. “I was in surgery with a neurosurgeon within an hour.”

Four days after the initial Nov. 2, 1995 accident, she suffered a “major hemorrhagic stroke” on the right side of her brain.

A second brain surgery was necessary to save her life.

Louwaert said if it wasn’t for Michigan’s no-fault auto insurance and a mandatory lifelong insurance pool to care for those with devastating injuries she wouldn’t have had a normal life.

Pete Kunmeunch, who is with the Insurance Institute of Michigan, says, “ ... I think what we need to do is try to responsibly address the system that we have. It’s been a great system for our consumers, but in the long term it needs some repair.”

Under the state’s current mandatory auto no-fault insurance, an injured motorist or passenger is covered up to $500,000 in medical bills. Then, the backstop is using money from the catastrophic claims fund for medical care.

The Dryden woman said if her friend didn’t have no-fault coverage “we would have gone bankrupt.” After being released from Receiving Hospital, she received treatment at a Beaumont Hospital rehab facility in Birmingham. She had physical, occupational, recreational and academic therapy for months afterwards.

As a result of the crash, her left arm and hand are paralyzed but she still works part-time as a nurse. She also has several adaptive devices at her home so she can make cakes and mashed potatoes with bowl holders and an opener under her cabinet for bottles.

“The way I am set up, whatever Blue Cross doesn’t pay, no-fault does,” she said.

“Just my two neurosurgeries after the accident cost $125,000,” she said.“This coverage helped me to get back into nursing school and return to being functional,” said Louwaert, who graduated from nursing school at Oakland University.

She said medications for lingering spasticity on her left side from the accident do not work. She must have continuing therapy to retain her mobility and strength.

The state’s Insurance Commissioner Kevin Clinton doesn’t think there’s any problem with how the catastrophic claims association is managing the injury fund.

“... I believe the actuaries for the MCCA are doing an outstanding job of trying to estimate these costs in a process that has a great deal of uncertainty,” he said.

“And the (cost) uncertainty exists because of the length of time benefits are paid and because of the unlimited nature of the benefits. Imagine trying to estimate what healthcare costs will be decades from now.”

A spokesman for Beaumont Hospital said it favors leaving no fault insurance in place because the catastrophic coverage guarantees that severely injured patients receive the care they need.

Mold exposure is deadly serious

2011-12-13T13:26:00.000-05:00

The eight-foot tall Godzilla-like black fungus that had been growing on the wall of the custodial room ten feet from my classroom was gone! Hallelujah!!! As of May 2010, there would be no more contamination from this alpha colony of Aspergillus fumigatus in my school!

In late August of 2010, I began my 22nd school year as a middle school teacher. I had high hopes that after years of bacterial and fungal torture, I would have a chance to go into recovery mode for the first time in over a decade. We had a new principal in the building and no one had reprimanded me in ten months! Things were looking up!

There is, however, no reprieve from the bacterial and fungal hazards in a water-damaged building. One of the most toxigenic molds known to medical science was expanding its area of influence in my school. It loved the cellulose in water-damaged ceiling panels and the paper in books, both of which abound in schools. It is one of the most toxigenic molds known to medical science and the bane of many water-damaged buildings – Chaetomium globosum.

Hi – my name is Lee Thomassen. If you read Dr. Shoemaker’s book Surviving Mold, you might recognize me as the author of chapter 20 (“Teaching in a Water-Damaged School – Fighting for Our Lives”). It is now September of 2011. Being out of the building for seven weeks over the summer did wonders for my “brain fog.” My first experience with VIP (Vasoactive Intestinal Polypeptide) replacement therapy brought all but one of my abnormal blood counts down to normal. I have used this window of opportunity to write with a clear memory a historical account of what I experienced during the 2010-2011 school year.

I wrote chapter 20 in June of 2010 and the roller-coaster ride since then has not abated. All across this country, there are employees, students, renters and home owners who have suffered the ravages of Chronic Inflammatory Response Syndrome. It is a shared experience that we hold in common. What makes this story unique is that I witnessed something truly remarkable – in the fall of 2010, my employer had to sign a Voluntary Resolution Agreement with the Office for Civil Rights, US Department of Education, for violating my rights under Section 504 of the Rehabilitation Act of 1973 for discriminating against me after I filed for accommodations relating to my inflammatory response illness. Then in the spring of 2011, a 2nd major Maryland public school system was impacted by Section 504 – it granted disability retirement to a teacher after coming to the conclusion that it could not meet the accommodation requirements contained in her application for accommodations in the water-damaged building where she worked.

Section 504 of the Rehabilitation Act can be a powerful tool in the battle against employers who refuse to deal with illnesses related to the indoor air environment. Teachers are the largest group of employees in the nation that are exposed to harmful toxins, bacteria and microbes in water-damaged buildings. Children have benefited from these proceedings for decades – now it is time for employees to use Section 504 for their own benefit. According to federal law, any person who works for an organization that receives federal financial assistance can apply for 504 accommodations (just like students can), and that probably applies to every employee involved in public education. Other groups that would be covered include the military, the FAA, WIC, Social Security workers and Postal employees. The list of organizations in the United States that are recipients of federal financial assistance, both inside and outside the federal government, is huge.

In the fall of 2010, my employer suddenly awakened to the threat of what it could mean to be the first school system in the country to have the federal government force them to grant accommodations for disabilities caused by toxigenic mold exposure (and all of the harmful metabolites, cell fragments, actinomycetes and mycobacteria that go hand-in-hand with exposures in water-damaged buildings). They mobilized their enormous resources as the 26th largest school system in the nation. This included their attorneys in the school system’s “Law Cottage” (yes – my school system has a building just for its lawyers – our property tax dollars well spent). They brought together their highly paid engineers and industrial hygienists at the Department of Facilities and the Department of Environmental Services. Our Environmental Services personnel are careful to leave no paper trail with regards to my school (despite the documentation requirements of MOSH, Maryland’s subsidiary of OSHA) and they do no sampling that could produce a lab report that might contradict their position that the building I work in does not have water-intrusion and indoor air quality issues.

The 2010-2011 school year was a David vs. Goliath struggle. I did not have a building full of lawyers, two industrial hygienists and a bunch of building engineers to help me. But I did have weapons that proved to be very powerful.

It is my hope that my on-going historical account of what happened during the 2010-2011 school year may prove useful to those who have to fight the same battles in their schools and water-damaged buildings. In this series of blogs, I will narrate the events that pick-up where Chapter 20 in Surviving Mold left off.

Car accident drunk backing

2011-12-13T13:19:00.000-05:00

Holding that there were no material factual issues as to whether the defendant-driver intentionally harmed the plaintiff or whether the incident caused plaintiff's alleged serious impairment, the court affirmed the trial court's order granting defendant summary disposition. Plaintiff and defendant both consumed alcohol at a party, and defendant had an altercation with plaintiff's girlfriend. After plaintiff and his girlfriend left the party, defendant drove to plaintiff's home, where the altercation reignited. "Plaintiff attempted to separate the two women and demanded that defendant leave. Defendant got into her car, floored the accelerator with the car in reverse, and backed into plaintiff, catching his leg between her car and a parked car." Plaintiff went to the ER, reporting significant pain in his lower left leg. Medical personnel found no broken bones and told him to use crutches and follow up with his personal physician. He continued to have leg pain during the next year. "The central factual issue for analysis" as to the § 3135(3)(a) claim was whether defendant intended to cause harm. The record contained two reports relevant to this determination - the ER report and the police report. Both contained statements in which plaintiff and his girlfriend declared that defendant deliberately struck plaintiff with her car. However, the court did not have to decide whether the reports were admissible because plaintiff's sworn deposition testimony neutralized any questions of fact created by the reports. "Plaintiff expressly testified in deposition that he did not know whether defendant intentionally struck him." In light of his sworn deposition testimony, the court concluded that his prior unsworn statements were insufficient to create a question of fact as to defendant's intent. Plaintiff argued that the trial court should have inferred defendant's intent based on her conduct, citing Wardlaw. However, in Wardlaw witnesses testified that the defendant drove a truck onto a lawn and aimed for the victim. There was no testimony here that defendant aimed her car at plaintiff. The court also rejected plaintiff's claim that genuine factual issues precluded summary disposition on his serious impairment of body function claim. Defendant produced medical records showing that before the incident, plaintiff sustained two significant injuries that caused back and leg pain. The medical records indicated that his current condition was related to his prior injuries. "Once defendant presented these records, plaintiff was required under MCR 2.116(G)(4) to present evidence to create a question of fact" as to whether defendant's conduct caused his alleged serious impairment. He "presented no admissible evidence to establish that his current condition resulted from the incident at issue."

Slip and fall negligence

2011-12-13T13:18:00.000-05:00

Holding, inter alia, that the slushy condition of the foyer floor that caused the plaintiff-tenant's fall was open and obvious, the court affirmed the trial court's order granting the defendant-landlord summary disposition. Plaintiff lived in an apartment building owned and operated by defendant. On 1/18/09, as she was descending a stairway and stepping into the tiled foyer of the building, plaintiff slipped and fell, sustaining injuries. She asserted that her slip and fall was the direct result of defendant's negligence in, inter alia, allowing ice, slush, snow, and water to accumulate on the tile and failing to remove or warn of the hazard. She also alleged that defendant breached its statutory obligations as a lessor. The court noted that plaintiff was walking down a stairway directly behind another person (S) and, as she stepped from the first step onto the foyer floor, she immediately fell. S had come to plaintiff's apartment to pick her up and had traversed the foyer, without incident, minutes before. S testified that when he first entered the foyer, he immediately noticed that the rug covering part of the floor had snow all over it. S also testified "that slush on the foyer floor beyond the rug was present and obvious, but that he had no problem walking through the slushy area to access the stairs to plaintiff's apartment." S testified that he went up the stairs (which were wet) to plaintiff's apartment and remained there for about five minutes. S and plaintiff then both came down the stairs, with S carrying a laundry basket and walking in front of plaintiff. S stepped off the bottom step and into the foyer without incident. Plaintiff, who had nothing in her hands, stepped behind S off the bottom stair and onto the foyer floor, immediately falling. She admitted that once she had fallen, she was able to observe the slushy condition of the floor. She also admitted "that once she stood in the foyer after her fall, the condition was readily apparent." The court noted that there was no allegation that the foyer layout, the lighting, or any other extraneous factor worked to conceal the condition. The only thing that prevented plaintiff from seeing the condition of the foyer was S's body in front of her. This was a factor beyond defendant's reach, "transitory in nature and arguably not a specific factor that could be specifically predicted in time or placement, nor controlled or prevented by the premises owner." The court also rejected plaintiff's claim that a question of fact existed as to whether defendant breached its statutory duty to maintain the common area in a manner fit for its intended purpose.

Nursing home negligence

2011-12-13T13:16:00.001-05:00

The stench of human waste hit her as she walked into her new job.

Denise Hubbard hadn't officially begun as nursing director at St. James Nursing Center in Detroit. But her phone rang on a Sunday, a day before her start date: Midnight shift nurses had left, and dayside was short-staffed.

Could she come in?

In a series of court documents, Hubbard described her first day -- Jan. 14, 2001 -- in graphic detail: sickly, malnourished residents; overworked staff, and equipment "completely plugged with hard, dried green mucous."

"Dried salt like tear stains" streaked the face of resident Shirley Jackson as she rocked in bed, struggling to breathe. Jackson's lips and tongue were dry and turning blue. At 68 pounds, bones protruded through her skin.

Jackson was hospitalized, Hubbard said, and died weeks later. The home paid $265,000 to settle a lawsuit filed by her sister. Earlier this month, owner Ciena Healthcare Management issued a statement saying that, despite setbacks, it is making "progress towards better and sustained compliance" with health regulations.

In 2003, Hubbard filed a whistleblower suit against Ciena, spawning a legal battle that ended with a court-ordered plan to improve care in the chain's 36 homes, mostly in Michigan. Ciena paid $1.25 million but admitted no wrongdoing.

More than 10 years after Jackson's death, the 150-bed Detroit nursing home remains one of the state's lowest performing, federal ratings show. So are two other Ciena homes, Omni Continuing Care in Detroit and Brittany Manor in Midland, even as Ciena also owns highly ranked homes.

The story of St. James, from its enduring problems to its continued operation, shows the glacial pace of nursing home reform in Michigan -- where a substandard home can linger for years, racking up violations, but staying open for business.

Rich homes, poor homes -- all with same owner

Ciena Healthcare Management, a nursing home chain with nearly three dozen Michigan facilities, is a study in extremes.

At its newest home, Regency at Waterford, the smell of fresh paint and new carpet lingers. There are private rooms and showers, wide-open meeting spaces, courtyards and an executive chef.

While the Waterford home glimmers, Ciena also owns two Detroit homes that are among the state's most poorly rated: Omni Continuing Care and St. James Nursing Center. Both have been cited again and again by state inspectors for serious lapses in patient care, as has Brittany Manor, a Ciena facility in Midland.

Although these homes are near the bottom in serious violations, they are not alone. More than three-quarters of Michigan homes received at least one serious violation in the last three years.

At Omni in 2009, a diabetic man died after he didn't eat dinner or a snack and was not given a supplement or insulin. A lab technician found his body, cold and stiff. Staff had trouble rousing a sleeping nurse as they called 911.

Inspectors also cited Omni for failing to report several incidents, including one in which a 60-year-old man died after pulling out a tube connected to his trachea.

At St. James, along seven-lane Gratiot Avenue, a resident with a history of confusion slipped outside in 48-degree weather for hours, dressed only in pajamas. Surveillance tapes showed that he passed two staff members in the parking lot -- one who said, "Good morning," she later recalled -- yet no one questioned him.

It wasn't until the man's girlfriend reported him missing two hours later that staff searched for him. He was located two blocks away, sitting on a porch.

In 2009, inspectors reviewing a death at St. James discovered that a nurse caring for a dying woman was actually an impostor. Deanna Smith-Eddington had worked there for nearly a month, dispensing medications and caring for residents.

St. James was cited for, among other things, failing to adequately screen Smith-Eddington's background.

Ciena told the Free Press that St. James reported the impostor nurse to the state. She remains in prison.

There were lower-level citations, too.

At St. James last year, an inspector watched for 20 minutes as one resident stood covered in her own waste, asking for help that never came. One staffer observed what was happening, picked up breakfast trays nearby and left.

Yet the Ciena chain of nursing homes also boasts facilities that have performed well on federal ratings, with few violations, including Christian Park Healthcare Center and Christian Park Village, both in Escanaba.

Ciena "is such a mixture of poor performing homes and lovely places which are well staffed and (have) state-of-the-art equipment," said Sarah Slocum, Michigan's Long Term Care Ombudsman, a state office.

The poorest-performing, she noted, are in some of the most troubled neighborhoods.

Slocum said her concerns are not limited to Ciena, but extend to any chain that has an extreme mix of affluent and poorly financed homes, yet is expanding. "If those resources are being spent on opening the new places, they're not being spent on the old, struggling places," she said.

Southfield-based Ciena now operates under a five-year, court-ordered federal agreement that requires tighter federal oversight. The order came after St. James nursing director Denise Hubbard quit her post in 2001 and filed a whistleblower's suit alleging residents lived in filth, missed meals and medications and, in at least two cases, were malnourished or severely dehydrated.

Discovery sanctions should be commensurate with damage to other side

2011-12-05T09:15:00.002-05:00

Concluding that the trial court's sanction of barring defendant-ACIA from presenting any evidence due to its violation of discovery orders was "unjust and disproportionate," the court vacated the judgment for the plaintiff in this no-fault case and remanded for a new trial. Further, the court held that "evidence of agency rates constitutes a material and probative measure of the general value of attendant care services," including family-provided services. Thus, the trial court properly rejected ACIA's attempt to exclude evidence of the rates charged by healthcare agencies for attendant care services. However, the court concluded that the trial court should have presented one of ACIA's proposed special jury instructions because the instruction accurately reflected "that many factors are relevant to the reasonable rate issue" and it was consistent with Sokolek and Sharp. The jury found ACIA liable to plaintiff for family-provided attendant care services at a rate of $28/hour. The only dispute in the case was the "reasonable charge" for his parents' attendant care services. The court determined that the trial court abused its discretion in selecting the sanction imposed. The trial court "specifically concluded that ACIA's conduct did not merit the drastic sanction of default." While the trial court labeled its order as "a lesser sanction," the court concluded that the trial court "actually imposed a sanction more severe and limiting than a default judgment would have been." If the trial court granted plaintiff's motion for a default, ACIA would have been allowed to present evidence as to damages. The trial court's "actual sanction went further and precluded ACIA from presenting any evidence, even on the damages issue." While the trial court correctly found that ACIA violated its discovery orders, it clearly erred in finding that the discovery violations severely prejudiced plaintiff. Since the sanction was disproportionate and affected the whole trial, the court vacated and remanded for a new trial. This reopened the parties' debate on the valuation of family-provided attendant care services. ACIA argued that the rates charged by healthcare agencies for these services were irrelevant to establishing the reasonable rate for unlicensed, family-provided services. While ACIA relied extensively on Bonkowski, the court in that case "expressly acknowledged that its analysis of this issue was pure dicta" and the court disagreed with the suggestion that agency rates are irrelevant to establish family-care rates. The rates an agency charges for attendant care services "are not dispositive of the reasonable rate chargeable by a relative caregiver. However, this does not detract from the relevance of such evidence." As to other relevant evidence, the court concluded that evidence of the "overhead" incurred (or not incurred) by plaintiff's parents would be relevant in calculating a "reasonable charge," and a "parent who personally provides attendant care services also certainly bears an ‘opportunity cost.'" The court determined that ACIA's "Alternative B" proposed jury instruction recognized "the multi-faceted nature of the required calculation" to establish a "reasonable charge" for services and allowed "the jury to consider a broad spectrum of relevant evidence."

no-fault insurance reforms ignore patient needs

2011-12-02T15:14:00.000-05:00

GRAND RAPIDS - It was Valentine’s Day 2001 when the vehicle then-16-year-old Emily Blauw was driving hit a patch of black ice and spun out of control and hit a tree in Ottawa County.

Blauw suffered a debilitating spinal cord injury and to this day her legs and hands are paralyzed. She spent nearly five months after the crash in rehabilitation at Mary Free Bed in Grand Rapids.

Now, as a therapist at that hospital, the wheelchair-bound Blauw is one of many fighting to preserve the decades-old Michigan no-fault insurance law she credits with giving her a mostly independent life.

The movement to reform Michigan’s no-fault law, which guarantees lifetime medical care to automobile crash victims regardless of who caused the accident, recently has gained traction in the Legislature.

The matter was brought to the forefront by insurance groups and other proponents who argue the current system is unsustainable because of increasing medical costs.

State lawmakers have spent weeks considering different proposals, including capping the lifetime payout to new crash victims. Such discussions have no-fault advocates crying foul and trying to put a human face on the policy.

”This is just short-sighted and could possibly be interpreted as politically expedient,” said David Blauw, Emily’s father and a representative from spiritual care services at Holland Hospital. “It’s not going to help people like Emily.”

Emily and David Blauw attended a meeting of nearly 30 people Thursday night of the Coalition Protecting Auto No-fault, or CPAN, at Allendale Township Library.

CPAN comprises health and other professionals from across the state, including local institutions such as Mary Free Bed, Spectrum Health System and Hope Network.

Proposals by the insurance industry would allow people to choose their level of care, which has been advertised as allowing people to choose their level of payment, said Margaret Kroese, vice president of Hope Network Rehabilitation Services.

But under the legislation, the maximum cap would be $5 million. Such a plan, Kroese said, would not cover all lifetime costs and likely would be avoided by most as too expensive.

“Clearly people are concerned about the changes,” Kroese said. “I think there’s definitely the energy. I’m optimistic that we won’t see changes as drastic (as current proposals).”

No-fault proponents acknowledged the system is imperfect and might need tweaking, but insisted it serves as a national model for patient care.

Mary Rigo-Burdo, brain injury program manager at Mary Free Bed, said most patients her division sees are children whose age would be adversely impacted by a lifetime payout cap.

No-fault typically covers charges associated with recovery after critical injury in an accident, including necessary home improvements for the handicapped or round-the-clock assisted living care.

”We’re preparing (patients) to be discharged back home or into the community, they’re not going to have the resources that people have now,” Rigo-Burdo said.

Rigo-Burdo was flanked by a handful of Mary Free Bed therapists, including Kris Fowler, a registered occupational therapist in the brain injury program.

”We want the best care for them and it would grieve us to not be able to do everything we can for that person,” Fowler said. “If we were not to have no-fault...it would be depressing to have to go to work and only be able to do so much and not everything you could for a person. I can’t imagine.”

For her part, Emily Blauw said Michigan’s no-fault law helped her achieve what could have been the unthinkable.

She went on to graduate high school, obtained degrees from Hope College and Western Michigan University and is gainfully employed helping people who endured trauma she knows all too well.

Emily Blauw is able to drive again, and because no-fault is funded through auto insurance premiums, she’s paying back into the system that helped her once again become “a productive member of society.”

”I was able to go to college like any other college student. If I had had the added expenses...I may not have been able to go to school, and I think on a huge level (no-fault) really took a lot of the burden away,” she said. “It has allowed me to function as a person and as an individual.”

Dr Shoemaker fights for truth and health

2011-12-02T10:28:00.001-05:00

Instead, I seek to know why T regulatory cells that are induced by high levels of TGF beta-1 can change in tissue affected by high IL-6 and IL-17 to become pathogenic T cells, ones that add to the burden of humoral inflammatory mediators. I get to see the very worst chronic fatiguers regain health when they have their non-existent vasoactive intestinal polypeptide (VIP) replenished. And I get to write the IRB applications that let me do such work. Some days, I feel invigorated by such excitement, but face it, there are the days when people aren’t getting better and the defense counsel in the big case in Georgia just produced an affidavit from a guy who has never treated anyone with illness from a water-damaged building that attacks me viciously. Those days are fewer now that the research group I work with has published a lot of good studies, yet they will occur predictably in the future. If one wants to avoid being bitten by snakes, a good idea is to not step into snake pits.

Dr Shoemaker makes a difference for us all

2011-12-02T10:26:00.000-05:00

“My illnesses” are contentious enough: mold, Post-Lyme, ciguatera, fibromyalgia and Chronic Fatigue Syndrome is the short list. No wonder there are so many attorneys (personal injury and disability alike) wanting something from my office. Just 10 years ago though, who could show the mechanisms of inflammation these illnesses all have? Now we can. And now that the mechanisms by which abnormalities in innate immunity develop in these patients are defined, and they are all chronic inflammatory response syndromes (CIRS), successful therapies follow. Seeing someone injured by exposure to a moldy building, for example, return to productive life after 10 years of functional disability brings a sense of joy different from the professional pleasures from my earlier medical life. I used to treasure the feeling that came from helping a three year old survive ear infections, mono, marriage and then parenthood. I still do. The two phases of my medical career have reinforced my belief that physicians can truly make a difference in society.

Scurrilous men and women steal with lies

2011-12-01T12:21:00.001-05:00

Watching the shameful spectacle in our nation's capital masquerading as a national government, I cannot help but be reminded of George Washington's dire warning about political parties.

In his farewell address to the nation, Washington forcefully warned the country that "political parties serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation the will of a party, often a small but artful and enterprising minority of the community (resulting in) ill-concerted and incongruous projects . . . they are likely . . . to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government."

I cannot imagine a more prescient description of our nation's sorry state of affairs.

What makes the situation more infuriating is that 70 to 80 percent of Americans think the federal deficit should be reduced by cutting expenses a lot and raising taxes a little.

Why is it, then, that Congress continues to defy the will of the American people? It's actually pretty simple. The minority who believe the deficit should be solved either by solely cutting expenses or raising taxes are the voters who dominate the primaries of the Democratic and Republican parties. It is these voters who give us nothing but ideologues, incapable of compromise.

For meaningful change, we're going to have to return to the Founders' view of political parties. Instead of being proud to be associated with a political party, it should be an embarrassment. After the debacle with the supercommittee, that sentiment should not be much of a stretch.

Wayne County rotten with cronyism

2011-12-01T11:57:00.000-05:00

I once asked a retiring labor leader what he intended to do after leaving the union. "If nothing else turns up," he replied, "I'll see what Bob Ficano has for me."

Wayne County is the employer of last resort for washed-up Democratic politicians, labor bosses looking for a second career, the friends and family of the well-connected and anyone else who can soothe a key constituency.

It is more a fraternal society than a government. Once you gain membership, you're set up. Having the county on your resume opens the vault to public contracts that are making millionaires of ex-staffers.

As The Detroit News reported this week, County Executive Ficano has more discretionary appointees than any other elected official in Michigan, and he uses them to build a political machine that keeps him in office and its members in the clover.

Many of the 187 Ficano appointees have six-figure paychecks and extraordinarily fat benefit packages. And while Ficano contends they're all cracker-jack workers who serve the taxpayers well, some of the positions and their salaries are impossible to justify, especially considering the county's $160 million budget gap.

An example: Ficano has two former Redford Township supervisors on his staff: Miles Handy, who handles "labor issues" and Kevin Kelley, responsible for "senior services."

Neither position would seem critical in a nearly broke county, except in helping Ficano keep his job.

Ficano also has in his deck a number of executive assistant spots — re: clerk — to pass out to the relatives of his in-crowd, including one for his girlfriend's sister. They get paid $60,000 to $70,000, or about twice what the private sector pays clerks.

It adds up to a county government that serves a cabal of the connected at taxpayers' expense. And it isn't just Ficano.

Sheriff Benny Napoleon pays two pals, including one who hired his brother, $75,000 a year to stand in for him when he's too busy to attend community events. He's spinning like a top the contract for services other sheriffs do without. Give it up, Benny. There's no excuse for a county on the fast track to insolvency to be wasting money on a pair of well-placed glad-handers.

Ficano rightly contends that he's a piker compared to former County Executive Edward McNamara, who maintained nearly 400 appointees. Many of the McNamara gang are now with former Deputy County Executive Mike Duggan at the Detroit Medical Center, proving again the lasting benefits of club membership.

Yes, McNamara had 400. But L. Brooks Patterson has only 19 in Oakland County, and not one of them is there as a political pay-off.

"I couldn't hire someone for political reasons if I wanted to," Patterson says. "My appointees have to clear the corporation counsel and the county commission."

That's the difference between good government that delivers a dollar's worth of value for every dollar it collects from taxpayers, and one rotten with cronyism.

Wayne County voters enable the abuse of their tax money by rubber stamping whoever the Democratic Party anoints for office. If it's ever going to change, the voters will have to be the ones who change it.

Notice should be as exact as possible.. doing your best is not good enough.

2011-11-30T13:15:00.000-05:00

Holding that the trial court erred by denying the defendant's motion for summary disposition on the grounds that plaintiff's claims were barred by governmental immunity, the court reversed and remanded for entry of an order granting defendant's motion for summary disposition. Plaintiff was involved in a single-vehicle motorcycle accident while travelling southbound on Southfield Road, somewhere within approximately ¼ mile of Ford Road. Within 15 days of the accident, plaintiff's counsel sent a letter to defendant that described the location of his accident as "at on [sic] the Service Drive for Southbound Southfield Freeway at Ford Road in the City of Dearborn, MI[,]" and described the nature of the defect that caused his accident as "defective roadway" and "defective pavement." Seven months after the accident, plaintiff filed this lawsuit in the Court of Claims, alleging that defendant's negligence caused his injuries. Defendant moved for summary disposition pursuant on the ground that plaintiff's claims were barred by governmental immunity, specifically arguing that plaintiff did not provide defendant with the statutorily required notice contained within MCL 691.1404(1). The trial court disagreed. At issue was the "highway exception." Michigan statutory law provides that an injured person must timely notify the governmental agency having jurisdiction over the roadway of the occurrence of the injury, the injury sustained, the "exact location and nature" of the defect, and the names of known witnesses. Plaintiff argued that his description of the location of the roadside defect was adequate, because he described the road he was on, the direction he was heading, and the closest cross street. Plaintiff also argued that he provided the best possible notice under the circumstances, because he was seriously injured in the accident and taken away by ambulance. He similarly argued that his description of the nature of the defect as "defective pavement" was sufficient, because it indicated that the pavement itself caused the injury rather than a foreign object, and because it was the best description he could make under the circumstances. The court held that both plaintiff's description of the location of the defect and his description of the nature of the defect were vague and imprecise. The area in question was a stretch of highway approximately ¼ mile long, yet plaintiff did not provide reference to any landmarks that might have assisted defendant in narrowing down the area, nor did he attach the accident report, photographs, or other descriptive material that would have provided a more exact location. Neither plaintiff's description of the defect as both "defective pavement" and "defective roadway," nor the vague description of the location as the service drive near a particular road - an area of roadway that is approximately ¼ mile long - provided the notice required by the statute. Though the court and the Supreme Court have upheld the use of the phrase "defective sidewalk" as sufficiently descriptive of the nature of the defect, that was only when "[c]oupled with the specific description of the location, time and nature of injuries" that allowed the notice to comply with the statute. Nothing in the notice provided by plaintiff allows the two descriptions to be read together in a manner to narrow the location of the incident.

Don't risk dismissal .. Notice must be very specific in sidewalk falls

2011-11-30T13:12:00.001-05:00

The court held in this case for damages arising from a defective sidewalk, that the description in the notice provided to the defendant-Village was insufficient to place it on notice of the "exact . . . nature of the defect." Since the plaintiffs did not give the defendant the required notice, it was entitled to governmental immunity. Thus, the trial court erred in denying its motion for summary disposition under MCR 2.116(C)(7). The plaintiff-Lyn Bykonen was walking with her son along a sidewalk when a school bus backed toward them. While trying to protect her son from the bus, she stepped into a crescent-shaped depression in the sidewalk and sprained her ankle. Two weeks later, someone submitted a letter addressed to the "Akron Village Clerk" on the plaintiff's behalf at a council meeting, describing the incident. Plaintiffs later filed suit for damages arising from the defective sidewalk. The trial court denied the Village's motion for summary disposition, holding that there was a question of fact as to whether the notice complied with the notice required under MCL 691.1404. Under the highway exception, a village may be liable for injuries arising from its failure to properly maintain its sidewalks. However, there must be strict compliance with the conditions and restrictions of the statute. One such condition is the notice of injury provision in MCL 691.1404. "As a condition to any recovery for injuries sustained by reason for any defective highway, the injured person . . . shall serve a notice on the governmental agency of the occurrence of the injury and the defect." Further, the notice must "specify the exact location of the defect, the injury sustained, and the names of the witnesses known at the time by the claimant." The court noted that plaintiff arguably described the location and nature of the defect with some specificity, but she did not describe the nature of the defect at all. She merely characterized the sidewalk as "a hazard." Further, there was nothing else within her description of the location of the accident that would clarify the nature of the defect. The description was insufficient to place the Village on notice of the "exact . . . nature of the defect." Thus, the court reversed and remanded for entry of an order granting the defendant's motion for summary disposition.

Leavi9ng car parked in sttreet may be compensable danger

2011-11-30T13:09:00.000-05:00

Holding that the trial court did not err in concluding that the vehicle with which the plaintiff collided did not pose an unreasonable risk of the bodily injury that occurred, the court affirmed the trial court's order granting the defendant-insurer summary disposition in this action for PIP benefits. Plaintiff gave a friend a ride home on a borrowed snowmobile. While traveling across a frozen lake, he hit a bump and the snowmobile's headlight assembly fell out of its housing. Plaintiff and his friend looked for the headlight but could not find it in the dark. They continued on without it, and plaintiff dropped his friend off at home before continuing on to his home. As he was travelling on a residential street, plaintiff collided with the rear of a white van partially parked in the southbound lane of the two-lane street. Defendant insured the owner of the van. Plaintiff alleged that the owner of the van parked it in a manner that posed an unreasonable risk of bodily harm under MCL 500.3106(1)(a). Defendant successfully moved for summary disposition under MCR 2.116(C)(10). The court noted that the Michigan Supreme Court held in Stewart that MCL 600.3106(1)(a) "does not create a rule that whenever a motor vehicle is parked entirely or in part on a traveled portion of a road, the parked vehicle poses an unreasonable risk." Factors "such as the manner, location, and fashion in which a vehicle is parked are material to determining whether the parked vehicle poses an unreasonable risk." Plaintiff noted that under MCL 257.671(1), a vehicle must not be parked "on a limited access highway" except in cases of emergency or mechanical failure. He also cited Hackley for the proposition that a parked vehicle protruding into the traveled portion of a roadway presents an unreasonable risk of injury. "However, the street on which the accident occurred was not a limited access highway. Rather, it was a residential street." Further, Hackley was decided before 11/1/90 and did not constitute binding precedent. "Hackley also does not engage in the analysis required by Stewart." Thus, the court did not find Hackley determinative and instead relied on the Stewart analysis. The "parked van was more than 300 feet from the nearest cross street and impeded only one-half of one lane on a lightly travelled residential road with a speed limit of 25 miles per hour. The accident occurred in the early hours of the morning, unlike the accident in Stewart, but traffic was not as heavy as in Stewart. Similar to Stewart, approaching drivers had ample opportunity to observe the van." This supported a conclusion "that drivers could react to and avoid the hazard it posed either by moving partially into the oncoming lane, if it was clear to do so, or by stopping behind the van until oncoming traffic cleared." Thus, the court held that the trial court did not err in granting defendant summary disposition.

Hurt on job in another state may still be MI worker compensation

2011-11-29T14:47:00.000-05:00

Noting that the decisions of the magistrate and the WCAC were based on "the now-erroneous finding that the agency lacked jurisdiction over injuries that took place in Georgia," the court concluded that a remand was warranted to allow the magistrate and WCAC to decide the case under the appropriate legal standard. Thus, the court reversed the WCAC's decision affirming the magistrate's denial of disability benefits and remanded the case for further proceedings. Plaintiff began working for defendant-GM in Michigan in 1977. He experienced pain and numbness in his fingers and palms, received treatment, and worked with restrictions to his upper extremities. He transferred to Georgia in 1997, and his symptoms continued. He had carpal tunnel surgeries in 1999 and 2000. After the surgeries, no jobs with GM were available within his restrictions. Plaintiff received a disability pension, and benefits through Georgia's worker's compensation system. He sought worker's compensation benefits in Michigan, asserting he was disabled by carpal tunnel syndrome, with injury dates of 10/18/95 and 11/30/97. The magistrate found that plaintiff failed to show he was entitled to benefits. The magistrate noted that plaintiff moved to Georgia and established residency there in 1997. "He worked for a year and a half, and aggravated his pre-existing condition. Under MCL 418.301, the date of injury for a condition not caused by a single event is the last day in which the employee was subjected to the condition that resulted in the disability." Thus, the magistrate found that plaintiff did not establish that Michigan had jurisdiction to award benefits since the last day he was subjected to the condition occurred in Georgia. "The magistrate concluded that MCL 418.845 governed jurisdiction for out-of-state injuries," and for plaintiff to receive benefits in Michigan he had to show that he was a Michigan resident. Plaintiff admitted that he was a Georgia resident on the date that he was last subjected to the conditions that led to his disability. He appealed to the WCAC, which concluded that the magistrate did not have jurisdiction to apply § 301(1) to determine whether plaintiff suffered an injury or aggravation in Georgia. The WCAC remanded the case. On remand, the magistrate found that while plaintiff established his carpal tunnel syndrome existed on 10/18/95, he did not show that he had lost wage earning capacity except between 1/23/95 and 4/3/95, when he refused restricted work. The case returned to the WCAC, which affirmed the magistrate, but not for the reasons the magistrate stated. The court held that a factual error and a change in the law required reversal. "In its remand order to the magistrate, the WCAC erred in precluding the magistrate from considering the November 1997 injury date that Coleman pleaded. And the change in case law regarding out of state injuries exacerbates this error." Plaintiff's injury "took place well before Karaczewski was decided." In Bezeau, the Michigan Supreme Court reversed the part of Karaczewski that gave the decision retroactive effect.

Skip child support pmnt? Charged with crime.

2011-11-29T14:43:00.001-05:00

The court held that the trial court properly found plaintiff-Klamka in criminal contempt after he stopped payment on child support checks made payable to defendant-Morton. He argued, inter alia, that neither he nor his attorney was aware that the trial court was conducting a criminal contempt proceeding until near the conclusion of the hearing. Thus, convicting him of criminal contempt was a violation of his due process rights. He also argued that because the only sanction sought by defendant for his actions was remedial, the trial court abused its discretion by finding him in criminal contempt. The court held that neither issue had any merit. "Criminal contempt differs from civil contempt in that the sanctions are punitive rather than remedial." Further, a party accused of criminal contempt must "be informed of the nature of the charge against him or her and . . . be given adequate opportunity to prepare a defense[.]" Defendant brought her motion for an order to find plaintiff in contempt under MCR 3.606(A), which refers to "punishment" and allows for a "bench warrant" to be issued. These imply criminal contempt. "The sanctions sought by defendant were not merely remedial, but were also punitive" where she moved for "substantial sanctions" in her motion and not just the remedial sanction of receiving the money owed. Also, shortly after the show cause hearing began, plaintiff's counsel argued that plaintiff could not be held in criminal contempt because he acted on the advice of counsel. Thus, he appeared prepared for a criminal contempt hearing. Also, before plaintiff testified, his counsel directly inquired of the trial court whether the proceedings were criminal, and at that time plaintiff was informed by the trial court that it considered the contempt proceedings to be criminal. Thus, the court concluded that plaintiff had adequate notice of the proceedings against him and there was no plain error affecting his substantial rights. Affirmed.

A witnesses version of events is important in police brutality cases

2011-11-22T10:28:00.001-05:00

Holding that it did not have jurisdiction to decide the issue of qualified immunity as to plaintiff's § 1983 excessive force claim because the defendants-officers based their claim for immunity on disputed factual findings, the court dismissed the defendants' appeal as to qualified immunity. However, the court affirmed the district court's decision denying summary judgment on defendants' claim of governmental immunity as to plaintiff's claims of assault and battery and gross negligence. Plaintiff was arrested for resisting and opposing a police officer and failing to obey the lawful commands of a police officer. The charges against him were later dropped, and he sued the defendants. He asserted that the court did not have jurisdiction to decide the issue of qualified immunity as to his § 1983 excessive force claim because defendants based their claim for immunity on disputed factual findings. The court agreed. While defendants contended that they based their claim for immunity on issues of law, a review of the record on appeal clearly revealed that they were relying on disputed issues of fact. They argued that they were entitled to summary judgment because no reasonable jury could conclude that they used excessive force against plaintiff. They contended that plaintiff "physically prevented [them] from arresting him" and "physically prevented officers from searching him," while also "[making] repeated furtive movements with his hands . . . actively resist[ing] through the entire encounter." Defendants maintained that, based on plaintiff's behavior, they "used only the amount of force necessary to subdue and handcuff him." They asserted that "until Plaintiff was handcuffed and stopped resisting, they clearly had a reason to be fearful." They also argued that the use of the taser was not excessive under the circumstances. Defendants stated "[i]n direct response to Plaintiff's physical resistance and his complete refusal to comply with officers' orders and demands, Officer Krakowski resorted to a higher degree of force." While both plaintiff and defendants acknowledged that plaintiff initially ran, defendants failed to take into account the rest of the facts as stated by plaintiff, such as his non-resistance, and his acquiescence to the officers' commands that he stop. They did not credit plaintiff's statement that he surrendered and voluntarily laid on the ground with his arms extended. In arguing that their conduct was reasonable and their use of force was not excessive, they took "little, if any, account of the evidence offered by" plaintiff. The court has stated that "[m]ere conclusory statements that the officers construe the facts in the light most favorable to the plaintiff cannot confer jurisdiction upon this Court." Defendants failed to construe the evidence in the light most favorable to plaintiff, which indicated that, contrary to their statements, he did not resist arrest and obeyed their commands. Thus, because defendants' arguments as to their claim that they were entitled to qualified immunity were based on contested facts that were relevant to that determination, the court did not have jurisdiction to decide this issue. As to plaintiff's state law claims, the court held that the district court properly concluded that there was a genuine issue of material fact as to whether defendants' actions "were objectively reasonable under the circumstances," and whether their conduct "was so reckless as to demonstrate a substantial lack of concern as to whether an injury resulted."

A lawyer must be careful with time periods in medical malpracrtice cases

2011-11-22T10:19:00.000-05:00

The court held that the defendant-doctor was entitled to summary disposition because the plaintiffs filed their second complaint after the expiration of the tolling period triggered by the mailing of their original NOI. Defendant performed a bunion osteotomy on the injured plaintiff on 11/22/06. She alleged that after the surgery, she developed cellulitis in her foot, which required several ER admissions, and that defendant failed to properly diagnose and treat the bunion. Plaintiffs sent defendant a NOI on 8/20/08. They filed their first complaint on 1/20/09. Defendant successfully moved for summary disposition on the basis the NOI was defective. The trial court dismissed the complaint without prejudice on 6/12/09. Plaintiffs sent defendant an amended NOI on 8/17/09 and filed their second complaint on 1/19/10. Defendant unsuccessfully moved for summary disposition on the basis the second complaint was time-barred. Since the first NOI was filed within 182 days of the statute of limitations expiration and no complaint was filed within 2 years of the injury, it triggered the only tolling period allowed under § 2912b. With the filing of their first complaint, the limitations period continued to be tolled. However, the trial court dismissed that complaint without prejudice on 6/12/09. "At the time of that dismissal, 94 days remained in the tolling period triggered by the mailing of the NOI and continued by the filing of the initial complaint." Thus, plaintiffs had until 9/14/09 to refile their case. They filed their second complaint "well after expiration of the tolling period . . . ." The court noted that under Bush, a defective NOI tolls the statute of limitations and a plaintiff may amend the NOI without affecting or limiting that initial tolling. Thus, plaintiffs could have filed both their amended NOI and their second complaint before 9/14/09. They argued that "at the time they mailed the amended NOI, the law governing such amendments and their effect on the statute of limitations was unclear and presented a ‘catch-22.'" They pointed out that they could not both wait the 182-day notice period from the amended NOI and also file before 9/14/09. However, Bush (decided on 7/29/09) "resolved this issue, holding that the tolling ran from the defective NOI, not the corrective amendment." Plaintiffs also cited Zwiers to argue that MCL 600.2301 allowed the trial court to "‘disregard any error or defect in the proceedings if substantial rights are not affected.'" However, the plaintiff in Zwiers mistakenly filed the complaint a day early (before the running of the notice period). Plaintiffs' complaint was filed more than four months after the statute of limitations expired. "Neither Bush nor Zwiers held that MCL 600.2301 could bring a time barred claim within the statute of limitations." Reversed and remanded for entry of judgment for defendant.

Answering summarry disposition by citing the complaint is not enough.

2011-11-22T10:18:00.001-05:00

The court held in this case arising from the servicing of and eventual foreclosure on the plaintiff's home, that the trial court properly did not consider the allegations in the plaintiff's verified complaint as equivalent to an affidavit or other evidence submitted in opposition to the defendant's motion for summary disposition. Thus, the court affirmed the trial court's grant of summary disposition to the defendants. Plaintiff contended on appeal that her verified complaint was sufficient, in lieu of an affidavit, to withstand a motion for summary disposition under MCR 2.116(C)(10). The court disagreed where MCR 2.116(G)(4) specifically precludes plaintiff, as the non-moving party, from simply relying on the allegations set forth in her complaint in opposition to defendants' properly supported motion for summary disposition. She could simply not rest solely on the complaint where "affidavits, pleadings, depositions, admissions, or other documentary evidence must be offered to survive summary disposition." The court held that the plaintiff's verification of her complaint did not meet the criteria of MCR 2.119(B)(1). Her complaint did not allege facts solely based on her own personal knowledge, as opposed to those matters stated upon her information and belief, Further, her verification did not specify those matters upon which she could competently testify. As the court observed in Coblentz, "[t]he verified pleadings . . . contain no statements sufficient to satisfy the criteria applicable to affidavits filed in support of a motion." Thus, she failed to meet her burden of establishing a genuine issue of material fact precluding summary disposition. Unlike Baker, plaintiff failed to submit any affidavit at all in opposition to defendants' motion. She could not "rest on the mere allegations" of her complaint in lieu of submitting any affidavit at all.

Comply with discovery orders or risk dismissal.

2011-11-22T10:14:00.000-05:00

The court held that the trial court's decision to dismiss the plaintiffs' case was not outside the range of principled outcomes. The trial court had already imposed the lesser sanction of striking four of plaintiffs' witnesses, defendants had filed two motions to compel and two motions to dismiss, plaintiffs were given numerous chances to comply with their discovery obligations, and they were warned months earlier that the trial court was ready to dismiss the medical malpractice/wrongful death case. They continued to ignore the discovery order. Plaintiffs' complaint alleged medical malpractice in the prenatal care and delivery of Riley Shane Rhoades, who suffered from numerous health problems when born and died from injuries and ensuing complications sustained during labor and delivery. Plaintiff filed their lawsuit and a scheduling order was entered on 11/18/08. The deposition of the PR (NC) was scheduled and canceled three times, twice at the request of plaintiffs, before it was completed. Also, defendants had difficulty obtaining answers to interrogatories and requests for production of documents. Further, they had trouble scheduling and completing the depositions of plaintiffs' expert witnesses in a timely manner. The trial court entered two discovery orders after entering the scheduling order. The final discovery order entered on 8/7/09, struck four of plaintiffs' witnesses as a discovery sanction, and mandated new discovery deadlines. Plaintiffs partially complied with the order, but did not produce a videotape of the birth or provide deposition dates for three expert witnesses. Also, they provided dates for one expert's deposition that were after the 11/15/09 deadline. On 10/9/09, the trial court dismissed plaintiffs' case for failure to comply with the 8/7/09 discovery order. The court concluded that plaintiffs plainly violated the discovery order. They did not provide deposition dates for three expert witnesses who were specifically named in the order and they provided a date after the deadline for one expert witness. They also did not produce the videotape of the birth, indicating that it was "missing." The trial court had the authority pursuant to MCR 2. 313(B)(2)(c) to dismiss their case for failure to comply with its discovery order. The court considered the Dean factors and concluded the trial court's dismissal of the plaintiffs' case was proper. Affirmed.

Is there an employer duty to keep a machine safe, it depends.

2011-11-21T09:41:00.001-05:00

Holding that no genuine issue of material fact existed as to whether the defendant owed the plaintiff a duty to ensure the press had the proper guards, the court concluded that the trial court properly granted summary disposition in favor of the defendant-Mian in this negligence action. Plaintiff, an underage employee of defendant-Century Tool & Die, severely injured his hands while operating a power press that did not have point of operation guards. Plaintiff sued defendant, alleging that defendant owned the power press and had a duty to ensure that the press had the proper point of operation guards. Later, defendant filed a motion for summary disposition, arguing that he did not own the power press - he had given it to plaintiff's employer, and it was plaintiff's employer's duty, not defendant's, to ensure that the press had the proper point of operation guards. Plaintiff argued that defendant did own the power press, not plaintiff's employer and, as set forth in Ghrist defendant had a duty to ensure proper guards were on the press. Plaintiff claimed genuine issues of material fact existed as to whether defendant was the owner of the press and whether defendant owed plaintiff a duty to provide a safe press. The court agreed with plaintiff that the trial court erred when it improperly resolved a genuine issue of disputed fact by concluding that defendant gave the press to plaintiff's employer. The court held that in light of the evidence presented, including the deposition testimony from several witnesses, reasonable minds could differ on the issue whether defendant owned the press at the time plaintiff sustained his injuries. The trial court may not make findings of fact in deciding a summary disposition motion. However, the error was harmless. Regardless of whether defendant owned the press or had formerly owned the press, defendant did not owe plaintiff a duty to ensure that point of operation guards were in place. Plaintiff's reliance on Ghrist in support of his argument that defendant owed him such a duty was misplaced. If defendant was the owner of the press, he could not be held liable for plaintiff's injuries. In light of plaintiff's employer's duties imposed by MIOSHA, it was not foreseeable to defendant that his press would be used in an unsafe manner rendering it defective. If defendant was the former owner of the press, he could not be held liable for the same reason - no duty was owed to plaintiff. Thus, whether defendant was the owner or former owner of the press, plaintiff failed to establish a genuine issue of fact showing that defendant owed him a duty imposed by law to ensure that the press had the proper point of operation guards. Contrary to plaintiff's claims, the cases of Hart and Smith were inapposite. In short, defendant did not assume a duty to plaintiff as demonstrated by an affirmative action. Like the defendant in Smith, defendant did not voluntarily and actively undertake to assist plaintiff's employer in its obligation to provide a safe place to work for its employees. Affirmed.

Slipp/ Fall statutory v common law duty, burden of proof

2011-11-21T09:40:00.000-05:00

The court held that the plaintiff adequately alleged that the defendant, by failing to repair and maintain its leaky gutter, violated statutory duties under MCL 554.139 and MCL 125.471. Although the court agreed with the trial court that the hazard was open and obvious, it reversed and remanded based on an applicable statutory duty. Plaintiff's case arose from a fall that occurred in the parking lot of defendant's premises on 3/23/08, after a storm that resulted in 4 to 6 inches of snow. At the time, her car was parked outside and was uncovered. She went outside to clean off her car. When she walked outside, she saw that both the sidewalk and parking lot were clear of snow, but there was four to six inches of snow on the grass. She went to her car, retrieved her snow brush, and cleaned off the passenger side. As she was walking around the rear of her car, she slipped and fell. She said that a patch of ice caused her fall, and described the ice patch as being two feet wide and two or three feet long. She also said it looked like the ice was running out from under her car, it was black, hard to see in the shadow of the car, and there was snow on it. She further said that she first saw the ice as she stepped on it and she was unable to stop. Plaintiff filed a complaint alleging defendant was negligent in its maintenance of the parking lot, walk ways, and gutters. She claimed that the negligence arose from breaches of statutory and common law duties. As a result of that negligence, she claimed black ice accrued on the parking lot, was not timely removed, and that the black ice caused her to fall and suffer injuries, and "severe shock, fright, and mental anguish." Plaintiff's expert opined that the temperature rose and melted the snow on the roof and if the gutter leaked it would form black ice on the surface below. Defendant moved for summary disposition, which the trial court granted concluding that the icy condition was open and obvious and the alleged gutter leak did not rise to the level of disrepair. The trial court also held that she failed to establish an applicable statutory duty. Plaintiff contended that the condition causing her fall was not open and obvious because it was invisible since it did not have snow on it. The court concluded her argument was not supported by the record. Just because she did not see the ice until she could not avoid it, did not mean that it was not visible on casual inspection. At best, her testimony showed that her failure to see the ice could be attributed to the fact it was behind her vehicle and she came in contact with it immediately after walking from the side of the vehicle. An average Michigan resident would be cautious of encountering slippery conditions. Thus, the condition was open and obvious. Plaintiff also alleged that defendant violated its statutory duties when it failed to fix the leaky gutter. Defendant offered no authority for the notion that it was not statutorily required to maintain the gutters. The court held that the alleged hazard was open and obvious, but plaintiff had adequately alleged defendant, by failing to repair the gutter, violated its statutory duty.

Experts must be careful in how they express their opinion.

2011-11-21T09:36:00.001-05:00

Holding that the plaintiffs failed to prove that a genuine issue of material fact existed as to proximate cause because their expert (B) did not opine with a reasonable degree of medical certainty what a dilated eye exam might have shown, the court affirmed the trial court's order granting the defendants summary disposition. The injured plaintiff (Brown) underwent surgery to have a cataract removed from his right eye on 4/6/06. He moved his head during the surgery, which caused a tear in the posterior capsule. Defendants-Burk and Wacksman saw him on 4/7/06 and 4/13/06 - "the medical records indicated no problems from the surgery." When he awoke on 4/14/06, he noticed a loss of vision in his right eye. He contacted defendants, who saw him on an emergency basis and immediately referred him to a specialist. The specialist diagnosed a detached retina, and Brown underwent surgery to reattach his retina. Plaintiffs sued defendants for malpractice and negligence. After B's deposition, two allegations remained - (1) Burk should have told Brown about the tear in the posterior capsule and warned the plaintiffs of the signs and symptoms of retinal detachment, and (2) Burk and Wacksman should have performed a dilated exam on 4/7 or 4/13, respectively, to examine the back of the eye and retina. Defendants successfully moved for summary disposition under MCR 2.116(C)(10). The trial court found that B's opinion was based on speculation and could not support the causation element. Plaintiffs argued on appeal that B's opinions showed that it was more likely than not that had the defendants performed a dilated exam of Brown's right eye, the retinal damage would have been found and his vision loss would have been reduced. The court disagreed, concluding that the statements the plaintiffs relied on were not based on fact, and were "speculation and conjecture" on B's part. B "used language like ‘if' and ‘had' when talking about the dilated exams. He also admitted that he could only speculate about the results of dilated exams, since no such exam had been done." Reviewing B's statement that the plaintiffs argued showed the necessary causation, the court concluded that B said, "had an exam been performed and had that exam revealed retinal damage, then had the proper action been taken, Brown's outcome would have been better." Those statements were speculation. Plaintiffs also argued that Burk's failure to warn them of signs and symptoms of retinal detachment was also a proximate cause of the injuries. The court held that even accepting the standard of care proposed by plaintiffs, they would not be entitled to relief. "Had such a warning been given it would have merely resulted in plaintiff presenting himself to defendants with specific complaints." However, B was unable to testify as to the likely outcome of the resulting retinal exam.

Injury in Medical Malpractice defined

2011-11-21T09:30:00.001-05:00

The court held that the trial court erred in finding that the "original injury" for purposes of MCL 600.1629(1) occurred in Wayne County where the deceased plaintiff treated with the defendants-physicians and institutional medical centers and hospitals. Because the original injury occurred in Macomb County where the corporate registered office of a defendant was located, the trial court erred in denying the defendants' motion to change venue. The decedent (M) was diagnosed with a serious heart condition shortly after birth in 1991. From 1991 through 2008, he treated with the defendants in Wayne County. In 5/08, defendant-Farooki prescribed an AED to detect abnormalities in M's heartbeat and to restart his heart after a cardiac event. On 8/11/08 he died during a car accident in Macomb County from "sudden cardiac arrest." His mother, acting as PR of his estate, filed this case against defendants in Wayne County, alleging that they breached their standards of care by failing to include an ICD in M's treatment plan to reduce his risk of sudden cardiac arrest. An ICD would have monitored M's heart rhythms and automatically corrected any detected abnormalities. MCL 600.1629(1) provides the venue guidelines for "action[s] based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death." While the statute does not define "original injury" the court has interpreted the term in medical malpractice cases. In Karpinski the court construed the venue statute and the wrongful death statute to define "original injury." The court explained that in a wrongful death case, the word "injury" in the venue statute "refers to the injury resulting in death, rather than the death itself." The court in that case also noted that "the Legislature intended to make the place where the injury transpires paramount for venue purposes." The issue here was whether the "original injury" in a medical malpractice case "involving a failure to recommend a course of treatment occurs at the time of treatment." In Taha, the court filled that gap, where the case explained that the injury that was the subject of the case "is the corporeal harm that results from the defendant's alleged failure to meet the recognized standard of care." The court concluded that the essential point of Taha was that the location of the alleged breach of the standard of care was not the place of the "original injury." In Dimmitt, the Supreme Court clarified that "a deficient treatment plan is only a potential injury until the plan proves ineffective and itself causes an injury." Thus, Dimmitt instructed that in a malpractice case, the location of an allegedly breached duty of care does not control venue. Rather, for venue purposes, the appropriate focus must remain on the location of plaintiff's injury. Here, M did not experience an actual injury until he suffered a sudden cardiac arrest and died. That was the "original injury," and it occurred in Macomb County. Reversed.

Mold Exposure help

2011-11-18T09:24:00.001-05:00

I'm very excited about Dr. Shoemaker's new web site SurvivingMold.com

. The information there is invaluable. I highly recommend that you spend some time on the site to better understand how to evaluate and approach biotoxin-related illness (whether it be Lyme, Mold, or other biotoxins). The Biotoxin Pathway

is the best summary of Dr. Shoemaker's work.

Head injury from fall erases memory of why fell

2011-11-18T09:22:00.000-05:00

The court held that the trial court properly entered a judgment in the defendant's favor following a jury trial in this negligence case. Plaintiff, an employee of a nonparty corporation, was working in its shoe department located in defendant's store when she fell from a ladder while changing the configuration of display shelving. Before falling, plaintiff was in the process of removing a bottom base up and over the top of an 84-inch counter while standing on the ladder. She explained that, to lift the base clear from the counter, "you do have to lift it, you know, quite a ways up over your head to get all of it off." The ladder plaintiff was using was owned by defendant, had wheels, handrails, and six steps, including a platform at the top. When the ladder was stepped on, it would stabilize on its legs. However, three of the legs were missing rubber feet. Due to her head injuries, plaintiff was unable to remember what caused her to fall. One eyewitness testified that she saw movement by the ladder and then plaintiff fall. However, she did not know what caused plaintiff to fall and did not know whether plaintiff was already in the process of losing her balance when she saw the ladder movement. Plaintiff sued defendant alleging that the ladder was in a dangerous condition, defendant knew it, and the ladder should not have been available for her use. Defendant filed a notice of non-party fault, naming plaintiff's employer as a possible contributor to plaintiff's damages for failing to provide her with adequate training and equipment. The trial court denied plaintiff's two motions to strike the notice. A four-day jury trial was conducted and concluded with the jury finding that defendant was not negligent. The first question on a special verdict form asking whether defendant was negligent was answered in the negative. Thus, the other questions whether her employer or plaintiff were negligent were not answered. Plaintiff argued that her motion to strike defendant's notice of non-party fault should have been granted because her employer was not a properly named "non-party." However, as defendant argued, this issue was moot. The fault of non-parties is relevant to the issue of damages. Since the jury decided that defendant was not negligent, "the issues of apportionment of fault and damages were never reached or decided." Plaintiff argued in her response brief that the issue was not moot because the trial was "permeated with Defendant's efforts to identify" her employer "as the real at-fault party" and if defendant had been "precluded from doing so, there is more than a reasonable probability that the jury would have reached a different result with respect to [defendant's] negligence." Plaintiff claimed that, in its opening and closing statements and "through numerous witnesses," defendant argued that it was not negligent and that the fault lay with plaintiff's employer. "First, defense counsel's opening statement and closing argument were not evidence and the jury was properly instructed that counsel's comments were not evidence." Second, plaintiff did not direct the court's attention either to defendant's "numerous witnesses" nor any witness testimony that allegedly identified her employer as the "real at-fault party." Further, even if defendant's notice of non-party fault was stricken, defendant would still be entitled to defend against plaintiff's negligence claim by arguing that her employer was the proximate cause of her damages - a mandatory element of her claim was not established. The court rejected plaintiff's argument and held that the issue whether defendant's notice of non-party fault should have been stricken was rendered moot by the jury's finding that defendant was not negligent. Affirmed.

Test for mold exposure is genetic

2011-11-18T09:13:00.000-05:00

The biggest takeaway for me from the weekend was one that I had already known, but it is also one that I cannot reinforce enough how strongly I feel about it. In my opinion based on what I have learned from Dr. Shoemaker's work, everyone with Lyme should have their HLA genetic testing done so that they understand if it is Lyme toxins, mold toxins, or both that they are inefficient in identifying and excreting. This information may change the course of your treatment. Additionally, if one is a mold-susceptible type, I think it is critical to have the ERMI testing done to see if your living environment is save. If one has a mold-susceptible type, an ERMI of < 2 is the goal. Anything higher than that is potentially unsafe and negatively impacting your health.

Ignoring the mold issue while treating Lyme disease is, in my opinion, much like trying to keep a boat filling up with water from sinking by using a cup to dump the water overboard when the boat itself has several holes in the bottom. You just can't win unless we evaluate and address all of the factors involved in our ill-health. Mold is often a very critical and overlooked factor.

The law now allows more help when hurt in car crashes.

2011-11-17T10:55:00.001-05:00

In light of McCormick, the court vacated the trial court's order granting defendants-Judy Lee Kowalesky and Frank Robert Kowalesky summary disposition in the plaintiff's action for no-fault benefits under MCL 500.3135 and remanded the case. Plaintiff sustained injuries when the vehicle he was driving collided with a vehicle driven by Frank and owned by Judy Lee. Plaintiff suffered a broken left foot in the accident. He sued, alleging that he sustained a serious impairment of body function as a result of the accident. He was off work for 90 days after the accident. His foot was in a cast for three to four weeks, and then in an orthopedic boot. He returned to custodial work without restrictions. "He worked 40 hours per week and was on his feet frequently, performing such tasks as setting up tables and chairs in conference rooms, performing maintenance work on kitchen equipment, installing new heating/air conditioning units, and carrying out woodworking projects. Plaintiff walked with a limp, but did not use a cane. His ankle was stiff and difficult to bend. He had a permanent numb feeling along his arch and toward the front of the bottom of his foot." The pain in his left foot was "always there," and on a scale of 1 to 10, began at 5 or 6 in the morning and went down to about 3 during the day. His treating physician imposed no restrictions on plaintiff's home or recreational activities. However, plaintiff began to develop a flat foot deformity in that the heal bone could not interact with the "posterior tibial tendon" to give arch to the foot. He also developed a "valgus deformity," which means the heal bone is "tipped out" of position and thus, prevented from moving and interacting with other tendons. "Plaintiff began to develop subtalar arthrosis, which is early arthritis caused by the dissolution of cartilage and has a high probability of becoming severe arthritis." Although it concluded that plaintiff suffered an objectively manifested impairment of an important body function, the trial court determined that he did not meet the threshold requirement for establishment of a serious impairment of an important body function set out in Kreiner. While plaintiff's appeal was pending in the court, the Supreme Court overruled Kreiner's interpretation of MCL 500.3135 in McCormick. The trial court's decision was based on case law that has been overruled.

Get a lazy attorney and you may lose because of them.

2011-11-17T10:48:00.001-05:00

In this insurance coverage dispute, the court held that the trial court properly granted summary disposition in favor of the defendant-insurer where the plaintiff-insured failed to raise a genuine issue of material fact. Plaintiff had a homeowner's insurance policy with defendant. Plaintiff filed his initial claim following a fire in the attic of his house. Defendant honored this claim as well a later claim for water damage and another for cracks in the foundation caused when plaintiff, in an attempt to conduct repairs, caused further damage to the home. However, when plaintiff filed a claim for cracking on the first floor of the house, defendant denied the claim as a preexisting condition based on the report of its expert. "The expert stated that if the first floor cracks were new, the exterior siding and trim, and the wood sill plate on top of the masonry walls would show damage, distortion, gaps, or lateral movement. He found none of these signs, so he determined that the cracks on the first floor had existed prior to the installation of the siding, and thus also pre-existed plaintiff's insurance policy." Defendant moved for summary disposition arguing, inter alia, that plaintiff failed to state a claim and that the first floor cracks were a pre-existing condition. Plaintiff did not file a response to the motion. "At the hearing on the motion, the trial court declined to allow plaintiff to address the merits of the case, questioning him exclusively on the reasons for his failure to comply with discovery." Plaintiff stated that he had been called to Iraq due to a family emergency, and did not receive notice of the motion until he returned home approximately 10 days before the motion hearing. The trial court described his attitude as "lackadaisical" and found that he had abandoned his arguments by failing to file a responsive brief or to contact the trial court or defendant to request an adjournment, and his failure to comply with discovery. On this basis, the trial court granted defendant's motion. Several days after the ruling from the bench, but before a written order was entered, plaintiff filed a motion for reconsideration to which he attached multiple documents and photographs asserting that they created a question of material fact. The motion for reconsideration also asserted that defense counsel mailed the summary disposition motion with insufficient postage and attached a copy of a post office postage due notice. The trial court's written order granting the motion was entered. That same date, plaintiff filed a belated "Response to Defendant State Farm's Motion for Summary Disposition," which contained many of the same arguments and attachments contained in the motion for reconsideration. Before the trial court ruled on the motion for reconsideration, plaintiff filed a claim of appeal. Although this deprived the trial court of jurisdiction, the trial court, likely unaware that a claim of appeal had been filed, issued an order denying the motion for reconsideration, affirming its conclusion that dismissal was proper based on the failure to respond, and noting that there were no questions of material fact. Given "the confusing nature of the record" as to service of the motion for summary disposition, the court elected to review the summary disposition ruling on the merits and considered the entire record, including the materials submitted by plaintiff in his late-filed brief and in his motion for reconsideration. The court held that "dismissal was proper because plaintiff failed to submit competent evidence creating a question of material fact." He claimed that the photos he submitted in his late brief and in his motion for reconsideration raised a question of fact as to the origin of the cracks on the first floor of his house. However, there was no testimony in the record explaining the import of the photos or authenticating them, and the court concluded that on their face, the photos prove nothing. Further, plaintiff's theory of causation was "anything but clear." While at some points in the record it seemed that he was claiming that the first floor was damaged during his repair attempts, at other points he asserted that the first floor cracks were caused by the house settling after 165,000 gallons spilled by a burst pipe drained away under it. Further, neither of these theories was supported by any competent evidence and rested "solely upon plaintiff's own speculation." Affirmed.

Signing a release of claims as volunteer will stop suit for injury.

2011-11-17T10:45:00.001-05:00

The court held that the trial court properly granted the defendant-Northwoods Animal Shelter summary disposition in the plaintiff's slip and fall personal injury case, holding that the "Volunteer Hold Harmless Agreement" was a valid release of liability. The case arose out of a slip and fall that occurred at defendant's animal shelter. Plaintiff was a volunteer worker at the shelter and, prior to her injury, she was required to sign the agreement indicating that she would not be able to bring any legal action for any personal injuries suffered at the shelter. Consideration consisted of plaintiff being given the opportunity to work with the animals at the shelter, in turn, she agreed to hold defendant harmless for any personal injury she sustained while volunteering. Requiring volunteers to sign a hold harmless release does not violate public policy. "It is not contrary to public policy for a party to contract against liability for damages caused by its own ordinary negligence." Plaintiff voluntarily chose to volunteer at the animal shelter. She was not required to do so. The Volunteer Hold Harmless Agreement did not violate public policy. Affirmed.

Legal malpractice

2011-11-16T09:58:00.002-05:00

The court held that the trial court erred when it found that defendants-Bess and Seyburn Kahn could invoke the attorney-client privilege because plaintiff-Bernstein alleged facts such that the fraud exception prevented the use of the attorney-client privilege by these defendants in this case. Further, the court held that since it found the crime-fraud exception to the attorney-client privilege applied to communications between appellee-Poss, Bess and Seyburn Kahn, the court did not need to decide whether the attorney-client privilege could be asserted against Bernstein. Poss, a doctor of podiatric medicine, employed Bernstein as a podiatrist. After 10/90, when Poss was convicted of healthcare fraud, which resulted in the suspension of his medical license until 1992, Poss proposed a new business venture to Bernstein. He would be the sole shareholder of a new business where he would provide podiatry services and Poss would provide management and administrative services and they would split the profits equally. Bernstein agreed to the proposal. Poss had a prior relationship with Bess and Seyburn Kahn and recommended that Bernstein retain Bess to incorporate Foot Health Centers (FHC). Bernstein did so. Bess prepared and filed the appropriate paperwork, which resulted in FHC being incorporated on 8/15/91. In 1998, Bess at the direction of Poss, filed articles of incorporation for Foot & Ankle Health Centers, P.C. (FAHC). Later, Bess filed documents to dissolve FHC. Poss was listed as the sole director of FAHC, but Bernstein was named as a shareholder and the vice president. Bernstein claimed that until 6/06, when he began negotiating to end his business relationships with Poss, he believed that he was a 50% shareholder in FAHC. At that time he learned that he was only a 2% shareholder. He then sued Bess and Seyburn Kahn for legal malpractice and breach of fiduciary duty committed during their representation of Bernstein. He alleged that Bess and the law firm assisted Poss in fraudulently converting his 100% interest in FHC into a 2% interest in FAHC. In anticipation of deposing Bess, Bernstein moved the trial court for an order preventing Bess and the law firm from claiming attorney-client privilege. The trial court denied the motion. Plaintiff acknowledged that the privilege belonged to the corporation, but argued that because he was a shareholder and officer of FAHC, the privilege did not prevent disclosure to him and that the crime-fraud exception to the privilege prohibited Bess and the law firm from invoking the privilege. The court rejected the defendants' claim that the exception did not apply because plaintiff failed to plead with particularity the relevant circumstances. The court also held that Fassihi applied where similar to that case, "Bernstein alleged that Bess failed to disclose relevant information about the purpose of FAHC," and "Bess assisted Poss in fraudulently converting Bernstein's interest in the corporation," failed to provide him with stock certificates, financial information, business records, or any other relevant information. Reversed and remanded.

Construction site injury

2011-11-16T09:58:00.001-05:00

On remand from the Supreme Court for reconsideration in light of Loweke, the court vacated the trial court's summary dismissal of plaintiff-Frommert's negligence action and remanded. Defendant-Kasco was the general contractor on an urban loft development project. Frommert worked as a laborer for a carpentry subcontractor employed by Kasco. Defendant-Teera served as Kasco's masonry subcontractor. Frommert was injured when he stepped off an aerial lift truck onto scaffolding erected by Teera, in order to retrieve a tile of Styrofoam insulation that had blown away during the course of his work. Teera employees had recently moved the scaffolding from a different location on the perimeter of the building, and had yet to completely stabilize the structure. Frommert stepped onto an unsecured plank, which gave way, and because he was not wearing a safety tether, he fell 20 feet to the ground below. Frommert sued Teera alleging that it acted in a negligent manner by failing to completely stabilize and secure the scaffolding, leaving it in an unsafe condition on the worksite. "While Teera had a contractual obligation to Kasco to maintain proper scaffolding, Frommert's claim was not based on that contractual obligation. Rather, Frommert's claim was based on the common law duty to use reasonable care to avoid endangering other workers or anyone else lawfully on the worksite." "Teera had a preexisting duty to act with reasonable care to avoid harm regardless of its subcontract with Kasco." In light of the Supreme Court's directive following Loweke, the court adopted Judge Gleicher's analysis in Frommert I (concluding that there was a genuine issue of material fact that Teera negligently constructed a scaffold and invited Frommert to use it, and under the circumstances, Teera breached a common-law duty of care). Thus, the court held that the trial court incorrectly concluded that summary disposition was proper under Fultz.

Disabled woman sues over access.

2011-11-15T13:40:00.000-05:00

GRAND RAPIDS — Driving around the city, Jocelyn Dettloff can’t help but look at area businesses to see if she could get inside them with her wheelchair.

Even a step at the front door is a barrier.

“How do you expect people who are in chairs to get into your establishment?” Dettloff asked.

She said a lot of business owners probably don’t realize that some people with disabilities, rather than complain, just avoid those shops and stores. As a worker for Disability Advocates of Kent County, the Grand Rapids woman uses every opportunity to educate others on access laws — and the needless struggles some face because of barriers.

But some 20 years after the Americans with Disability Act took effect, she sometimes wonders: “Are you kidding me? They’re still inaccessible?”

She takes it to another level.

The Monroe woman, a mother of two and motivational speaker, has filed dozens of federal lawsuits in several states alleging ADA violations. She has filed six this year in the Western District of Michigan, targeting Baymont Inn & Suites near the Gerald R. Ford International Airport, and the Comfort Inn, Bob Evans and Denny’s in Holland, among others.

Born with spina bifida, Caruso has served on the President’s Committee for the Disabled and was Ms. Wheelchair Michigan in 1987.

Frustrated by accessibility issues, she has taken legal action to get businesses to comply with the ADA.

“Enough is enough,” Caruso said recently. “Everybody deserves to have equal access. If I want to go to a place, why can’t I go to the place?”

She said her goal is to increase accessibility for others. Too many business owners won’t make changes unless they’re called out legally, she said.

Critics say such tactics benefit only the lawyers who file the cases, as they’re typically paid by the defendants as part of the settlement. Businesses can expect to spend at least $5,000 to defend and settle such suits, said attorney Vincent Lynch, whose Florida firm has defended businesses against hundreds of ADA lawsuits.

“The plaintiffs are not entitled to damages, only attorney fees if they prevail,” he said.

Lynch said he has sent letters to those who have sued his clients, suggesting they discuss changes that could resolve their issues. He said he has never received a response.

The ADA was established in 1990. Under the law, facilities built before 1992 needed to have barriers removed that were “readily achievable” and didn’t require “much difficulty or expense,” Lynch said. Facilities built after that had to be “readily accessible” and “usable” to disabled people.

In an online article, Lynch called the ADA “a Pandora’s Box of litigation for small, medium and large businesses. ... Several disabled persons, disability organizations and their attorneys are bringing high-volume ADA litigation that is hurting business in an already difficult economic climate.”

In an interview, he said the law is being abused.

“It’s hurting small businesses struggling to survive,” he said.

But Caruso makes no apologies.

“If they spent one day in my life, I think they would probably understand,” she said. “It’s not about the money. I want it to be accessible for everyone, whether that’s people with walkers, older people, people with strollers. It’s sad. That’s just what it’s come to.”

Caruso said she travels frequently, often alone.

She said issues arise when she can’t reach the air conditioner or heat knob, there is no shower seat, or the shower door swings the wrong way so she can’t get in — even in a room designated for handicapped people. At her boyfriend’s apartment, there are no curb cuts, so she has to wait for him to help her up, she said.

“These are not little things,” she said.

Caruso said she has gotten hate mail over her lawsuits, but others appreciate her efforts. Many others will find access that might not have been there, she said.

“My lawsuits are public record,” Caruso said. “And I feel my results speak for themselves. I feel that my actions are remedies to fix the limited access for people with disabilities.”

In Caruso’s lawsuit against Baymont Inn, her attorney, Owen Dunn, said barriers to access endangered his client’s safety.

He said she acts as a “tester” while visiting businesses and assessing accessibility.

“Jill Caruso desires to visit the hotel not only to avail herself of the goods and services available at the property but to assure herself that his property is in compliance with the ADA so that she and others similarly situated will have full and equal enjoyment of the property without fear of discrimination,” Dunn said.

Caruso has an 18-year-old son, Devan, and a 6-year-old daughter, Mia.

David Bulkowski, executive director of Disability Advocates of Kent County, said most places comply with the law. But even places that comply still present obstacles, he said. For instance, some aren’t designed for the wider scooters that are growing in popularity.

“There’s no such thing as a one-size-fits-all in the disability world,” Bulkowski said.

“There are still issues out there.”

He said his agency tries to work with businesses, and he said many “seek us out before they start construction.” His agency has worked closely with Woodland Mall, for example.

The trouble is, a lot of barriers for the disabled are “literally poured in concrete,” he said.

The lack of a curb cut can stop wheelchair users in their tracks, Bulkowski said. Concrete settles and takes a beating in Michigan winters.

He said it is easy to forget the struggles of the disabled. Bulkowski, who has no disabilities, often reminds himself that “I’m living in a world built for me.”

Dettloff has used a wheelchair for 15 years after a spinal-cord injury at age 26. She said she has had her share of frustrations, but none worse than during a June trip to New York City.

“I was actually stunned that for a touristy city it is — oh my gosh — so many restaurants and pubs and shops, they have a step there to get into them,” she said.

Dettloff said she can see all sides and knows it can be expensive for businesses to make changes.

“A lot of times, businesses aren’t going to do it,” she said. “They say, ‘We don’t get those kinds of people in here.’

“Well, of course you don’t

Detroiters cultivate a sense of community

2011-11-15T13:37:00.000-05:00

They use whatever they can -- bicycles, Bibles, even barren land -- to snatch up their slice of Detroit and hold it tight. There are many aspects of the city that they love and certainly, some that they loathe. Still, these families and individuals are doing what they can to survive and maintain a sense of community within some of Detroit's most violent areas.

Lumsie Fisher

Choosing to stay to show a way out of hopelessness

Lumsie Fisher's voice -- naturally deep, but extra raspy from the Newports he smokes -- fills the small basement he converted into a church with a melody.

"This is my story. This is my song. Praising my savior, all the day long."

His congregants -- an 82-year-old great-grandmother, his daughter and a police officer-turned-deacon -- join Fisher in singing the hymn "Blessed Assurance" during a Tuesday night Bible study.

"Perfect submission, perfect delight. Visions of rapture now burst on my sight! Angels descending bring from above, echoes of mercy, whispers of love."

Fisher, 64, lives at the corner of Westbrook and Fullerton in Brightmoor, on the city's west side. Fullerton is unpaved near his home and runs parallel to train tracks. In the last decade, the area has become a dumping ground for trash and bodies. It is one of the deadliest areas in Detroit. "In my lifetime, I've seen them come in and get at least 10 bodies," Fisher said. "A year and a half ago, two bodies were burned right in front of my house."

Fisher could leave the neighborhood, but instead, he has decided to take to the streets preaching the Gospel. He spends his days trying to convince people who are addicted to leave drugs behind and accept Jesus. He often takes in people who are down on their luck. He ministers to prisoners in the Ryan Correctional Facility and tutors children after school.

His church service and Bible study classes are held in the basement of a friend's home because Fisher's house is too small. On this night, his voice competes with the hum of the furnace and the sound of people walking about upstairs.

"As we find ourselves in this basement ... I just thank God," Fisher prays. "I try to remain humble in whatever I do. When God anoints you to do something, can't nobody else do it."

Despite the murders around him, Fisher said he isn't giving up on the city. He often asks the Lord to look down on Detroit Mayor Dave Bing. And he wants to inspire the underclass -- those he sees as mired in hopelessness -- to fight for a brighter future.

"I accept me being here on this corner is divine -- God has a purpose for me being here."

Keith and David Jarrell

Living on the fringe, looking out for the neighborhood

By most standards, Keith and David Jarrell aren't your typical crime-fighting duo -- they ride bikes, use a fire pit in their backyard to stay warm when cash is too tight to pay utilities and admit living on society's fringes, mostly because poverty keeps them there. But when they're needed in their east-side neighborhood, they deliver.

The brothers have lived for 40 years in a run-down house on the corner of Bessemore and Georgia. They're members of The East Side Riders, a custom-bicycle club that gathers for casual rides. They hold workshops for neighborhood kids to show them simple things such as how to change a flat tire, to more difficult tasks such as customizing -- or tricking out -- their bikes. What started as fun has become a crime-fighting tool.

When the bodies of women were being found scattered on the east side inside abandoned houses and lots in the summer of 2009, the brothers rode around, handing out flyers and warning women not to walk alone. On Angels' Night, the eve before Halloween, they've patrolled the neighborhood. They even ride along with children as they walk to and from school.

"We just want to keep it safe where we live," said David Jarrell, 47. "People don't feel safe because there are too many fields and they don't cut them enough."

Solution: The men share a neighborhood tractor to cut grass and weeds in vacant lots.

"I love Detroit -- it's my heart," said Keith Jarrell, 49. "Everybody is not bad around here -- they just aren't in the right position. They think, 'I ain't got nothing else to do but the wrong thing to get places.' Maybe we can change kids' way of thinking."

Unemployed, the brothers survive by doing handy work. The small amount they charge to fix bikes won't pay the bills. Yet Keith Jarrell volunteers for The Hub of Detroit, a nonprofit bicycle reuse and repair shop.

They admit it's hard to remain positive about the city.

"Why are there no jobs here?" David Jarrell asked. "It's just Detroit, but it makes you want to leave when you can't get a job."

The Sparks family

Sticking together and connecting with all

The Sparks family has taken a page from small-town America and transferred it to Detroit's west side.

Three generations of Sparkses live next to one another on a block where everybody knows one another and looks out for the young and old.

The scene is strange for this Brightmoor neighborhood, not so much because they all live in a cluster, but because most of the street is decimated.

"It's kind of like being in the suburbs but in a post-apocalyptic world," said Matt Sparks, 31, who lives with his wife, Marie, and two children in one home. "It's just home to me -- I don't feel as comfortable in other spots. Everybody is laid back. Nobody is judging anybody. We're all just trying to pay our bills and take care of our kids."

The Sparkses, whose homes are on Chapel wedged between Glendale and Fullerton, are proud to call themselves Detroiters. Jack Sparks, 56, the patriarch, has lived in the neighborhood since 1978, when he moved to Detroit with his young bride after a stint in the military. Matt Sparks, his son, settled next to him with his family. Sean Schaefer, who was unofficially adopted by Jack Sparks, lives next to Matt with his wife, Jennifer.

"It's Detroit over here, no question; we had the crime and abandonment," Matt said. "But it's kind of old Detroit -- how neighbors stuck together."

The Sparkses have made the best of the abandonment. Behind their homes are empty lots that they've converted to "Sparks Park," a personal playground with jungle gyms, swings and outdoor furniture that abuts Rouge Park. The family is known throughout the neighborhood for their summer barbecues, gatherings they use to create unity among those left living in the ruins.

"For years, it's been us surviving and doing what we can," Jack Sparks said. "It's not where you live; it's how you make your home."

Schaefer offers a unique perspective: He lived across the street from the Sparks homes before moving to Westland with his mother when he was around 5. But Schaefer often returned to play with his best friend, Matt Sparks. Schaefer, 31, said his biological father was absent, and Jack Sparks, whom he calls "Dad," stepped in.

When another Sparks decided to sell her house and move to another state, Schaefer jumped at the chance to come back home. "Nothing beats living near your family," he said. "It's not perfect, but it's home."

Mark Covington

Planting the seeds for a better future

Mark Covington plays many roles in the east-side neighborhood where he has spent most of life: big brother, cop, teacher, activist, zoo keeper and master gardener.

He's a man who yearns to reclaim the Detroit he remembers as a child.

"I have this vision of rebuilding the neighborhood, and I believe I can do it," said Covington, 39, as he surveys the blocks of land he is transforming just a stone's throw from the Better Made factory on Gratiot.

In December 2007, Covington lost his job as an environmental technician, and he soon found himself needing to move back home to Georgia Street with his mother and grandmother.

Instead of wallowing in pity, he decided, as the snow melted, to keep active by cleaning trash from vacant lots around his neighborhood. That spring, Covington was inspired to plant a few rows of collard greens and tomatoes in a lot, hoping the plants would deter litterers.

Vegetables soon grew from the soil, as did a movement that encouraged youth mentorships and volunteerism. Today, the Georgia Street Community Garden ( www.georgiastreetcc.com and www.georgiastreetgarden.blogspot.com )has grown into a second garden, an orchard, a park and a community center, all under the umbrella of the Georgia Street Community Collective. With the help of donors, Covington purchased a building and rehabbed it into a community center. It is used for holiday meals, coat drives and movie and reading nights. Eventually, a portion will be converted into a library and computer lab for children.

"We might be poor, but we don't have to act poor," he said. "It doesn't take money to clean up around your house. It doesn't take money to do certain things that will show the kids that there is a better lifestyle."

Take a drive down Georgia Street, and you'll hear Cozy the goat singing a tune or dozens of chickens clucking away. Covington keeps the pets for practical reasons -- fresh eggs and goat milk are delicious, he said -- but also to keep young people enthused and engaged.

Covington isn't one of those urban farming enthusiasts who envisions swaths of Detroit being converted to gardens. "I'm not trying to turn the city into a farm. I would rather see houses and businesses," he said. "But I can be part of the solution."

Covington credits the garden with getting neighbors talking to one another again. They come to pick vegetables, ask him to have a chat with a son or daughter who isn't performing academically, or to report possible crimes.

"Before I got out here, I didn't know I was walking past people who had no lights and gas and were struggling to eat," he said. "By just being able to really reach out, I feel like there are people I'm helping that I don't even know."

Supreme Court not always last word.

2011-11-15T10:37:00.000-05:00

WASHINGTON (AP) – Nothing about the Supreme Court — not its magnificent building atop Capitol Hill nor its very title — suggests that its word is anything other than final. Yet federal appellate judges and even state court judges sometimes find ways to insist on an outcome the Supreme Court has rejected.

Just last week, the justices rebuked judges on the federal appeals court in San Francisco in the tragic case of a Los Angeles-area grandmother who was convicted of shaking her 7-week-old grandson to death. The appeals court overturned the conviction three times and twice, the justices ordered the appellate judges to try again. The third time around, the justices ended the case, pointedly upholding the conviction.

"Each time, the panel persisted in its course, reinstating its judgment without seriously confronting the significance of the cases called to its attention," the high court said in an unsigned opinion. "Its refusal to do so necessitates this court's action today."

But the nation's court of last resort does not always get the last word.

The appeals court in Washington where four Supreme Court justices trained, the Oregon Supreme Court, and occasionally even the San Francisco-based federal appeals court given its come-uppance last week, have in recent years won battles with the justices. The lower court judges have managed to limit the rights of terrorism suspects detained at Guantanamo, uphold awards of large punitive damages against companies and rule in favor of criminal defendants, despite the Supreme Court's disapproval.

The efforts bring complaints from lawyers on the losing end of these cases and from some scholars that the judges are "thumbing their noses" at the Supreme Court, although those complaints usually are expressed in the more polite legalese of the courtroom.

That's why an appeal asking the high court to throw out a punitive damages award calls an Oregon Supreme Court decision upholding the award "yet another attempt by that court to thwart federal due process protections."

Some federal appeals court judges in the nation's capital have been unusually direct in criticizing Supreme Court rulings that gave detainees at the U.S. naval base at Guantanamo Bay, Cuba, the right to contest their imprisonment in federal court. And the appeals court has so far blunted the impact of the high court's decisions by limiting the detainees' ability to challenge the government's evidence justifying their continued imprisonment.

Circuit Judge A. Raymond Randolph, reversed three times by the Supreme Court in detainee cases, has said the court was "profoundly mistaken" and made a "mess" of the situation.

Stephen Vladeck, an American University law professor who has represented Guantanamo detainees, said there has been nothing subtle about the appeals court's rulings and some comments, especially from Randolph and his circuit colleague Judge Laurence Silberman.

"One does not have to look hard to see fairly outright challenges to the Supreme Court's authority, which to me only makes it that much more surprising that the Supreme Court has seen fit to do nothing," Vladeck said.

The justices have so far declined to hear appeals arguing that the appeals court just blocks away at the foot of Capitol Hill has undermined the high court's guarantee, in 2008, of limited constitutional rights for Guantanamo detainees.

In the area of punitive damages, the Oregon Supreme Court upheld an $80 million award from Phillip Morris USA to a smoker's widow three times. Twice, the justices threw out the judgment.

On the third go-round in Washington, the justices seemed open to the idea advanced by the cigarette maker's lawyer that they were being played.

"We're here today because the Oregon court failed to follow this court's decision," Stephen Shapiro, told the justices.

"How do we guard against making constitutional decisions which are simply going to be nullified by some clever device?" Justice David Souter asked. Souter has since retired.

But Robert Peck, Mayola Williams' lawyer, sought to persuade the court that the Oregon court did not act in bad faith. "There was no sandbagging here," Peck said.

In the end, the high court dismissed the case without deciding anything, an outcome that left Williams' award in place. Former Oregon Supreme Court Justice W. Michael Gillette, the author of the Williams opinion, said he was heartened both by the outcome and by Shapiro's comment at another point in the argument that he was not accusing the Oregon court of acting in bad faith.

"I did not want to be remembered as a judge who was thumbing his nose" at the Supreme Court., said Gillette, now a lawyer in private practice in Portland, Ore.

But the Farmers Insurance Co. of Oregon is resurrecting the argument over the Oregon court's motivations in a new appeal. The company is asking the justices to throw out an $8 million punitive damages judgment, on top of $900,000 in compensatory damages, that the Oregon court upheld in July. Farmers Insurance contends that prior Supreme Court rulings only allow punitive damages to roughly equal compensatory damages when the behavior at issue is not reprehensible.

Theodore Boutrous Jr., representing Farmers Insurance, wrote that the state court sided with the plaintiffs "by inventing yet another procedural trap" to defy the justices. Boutrous, Wal-Mart's lawyer in the company's successful effort last term to end a nationwide class action discrimination lawsuit, said the Oregon court's decision in the Farmers Insurance case was similar to the state court's "novel and patently unreasonable" ruling to uphold the award against Phillip Morris.

The Supreme Court has yet to consider the Farmers Insurance appeal. But Peck, who is representing the people who sued the insurer, said the attack on state courts is a familiar refrain among lawyers defending companies in these suits, "There seems to be sort of this theme that I'm seeing in a lot of petitions, portraying the state courts as rogue courts that don't obey due process, seeking to stick it to defendants. The facts just don't bear that out," he said.

Judges on the 9th U.S. Circuit Court of Appeals, the San Francisco-based court involved in the shaken baby case, have to some extent grown accustomed to Supreme Court criticism.

Last term alone, the high court unanimously reversed Judge Stephen Reinhardt of the 9th Circuit three times. But Reinhardt contends that it is the high court that is changing the rules, especially in the second round of appeals that criminal defendants are allowed in order to pursue alleged violations of their constitutional rights.

"The explanation is the Supreme Court keeps narrowing people's rights under habeas," the formal term for the second round of appeals, Reinhardt said in an interview. "The court goes beyond where it's been before and reverses one of our cases. It goes and issues a new rule and says we're wrong, and then we don't do that again. But when we did it, we were right. It's not our job to anticipate their changes in the law."

But critics of the 9th Circuit say its judges at times defy the high court. They cite a saying, widely credited to Reinhardt, that no matter how often the court undoes his work, or that of his colleagues, the justices can't reverse them all.

The judge said he doesn't remember ever saying those words, but that if he did, he said it "somewhat humorously, not as indication of how you decide cases."

Still, looking back over 30 years on the federal bench, Reinhardt said he thinks "there were one or two cases where the panel must have worn them out."

Improper complaint will get dismissed

2011-11-11T09:26:00.001-05:00

Concluding that medical judgment was used and medical expert testimony was needed, the court held that the complaint sounded in medical malpractice and the trial court properly granted the defendants' motion to dismiss. On 3/27/08, the plaintiff underwent a left total parotidectomy with facial nerve preservation performed by the defendant-doctor at the defendant-hospital. The doctor's postoperative report indicated that about an hour into the operation, she noticed that plaintiff's left earlobe was "extremely warm" and "the skin on her ear was actually peeling off and blistering." The doctor also noted that the headlight she was wearing on her head was "extremely hot, and it actually had been causing a slight burn of the skin." Plaintiff sued on 3/8/10, alleging ordinary negligence. She asserted that the hospital had a duty to properly maintain its equipment, including the headlight that burned her ear, and keep it in safe working order. She alleged that the defendants also had a duty to inspect and test the equipment to ensure that it was safe for use. She claimed that the hospital failed to maintain and/or test the headlight and to ensure that it was in proper working order. Plaintiff also alleged that the hospital "did not supervise its staff to ensure that only safe and well-maintained equipment was used during surgery." The defendants successfully moved to dismiss the case without prejudice because plaintiff failed to file the required notice of intent at least 182 days before filing the complaint, and did not file an affidavit of merit. Plaintiff argued on appeal that since no medical judgment was used by the defendants, and no expert testimony was needed to show that the headlight became extremely hot and burned her ear, the complaint gave rise to an ordinary negligence claim, not a medical malpractice claim. The court noted that there was no dispute that plaintiff's alleged injury occurred in the course of a professional relationship. Further, the headlight the doctor used during the operation was a piece of surgical equipment. To analyze the reasonableness of the hospital's actions "in inspecting and testing its surgical equipment, it is necessary to know how often a hospital is required to inspect and test its equipment. This is outside the scope of the knowledge of a lay juror, as it requires knowledge of the standard of care applicable" to the hospital. Because expert testimony was necessary for that determination, the claim against the hospital sounded in medical malpractice. Further, expert testimony was needed "to explain the surgery to the jury, why the headlight was used, how long a headlight of this sort is typically used during this type of procedure, whether there are different settings for the headlight, and if so the appropriate settings for the headlight during this kind of procedure." Expert testimony was also required as to alternative causes for plaintiff's alleged injuries and whether they could have occurred absent negligence. "Such an analysis could not be performed by a lay juror based on common knowledge."

Spousal support

2011-11-11T09:23:00.000-05:00

The court held that the trial court's findings as to the allocation of the parties' debt were not clearly erroneous. Further, the award of spousal support was equitable based on the property and debt awarded to the parties, their contribution to the marital estate, their ability to work, the length of the marriage, disparity in income, and their post-separation living circumstances. The parties were married in 1981 and have two adult children. When the plaintiff-wife filed for divorce in 10/08, her annual income was around $30,000 and defendant-husband's was around $45,000. His pension was valued at $180,000 and is eligible for distribution in 2018 when he turns 60. Plaintiff's pension was valued at $33,000 and she will be eligible for distributions when she turns 60 in 2022. The marital home was foreclosed upon and there was a question as to whether the mortgagee would pursue a deficiency judgment. At the time of the hearing, defendant was living in an apartment and paying about $625 a month in rent and utilities. Plaintiff was living in a house that her parents helped her buy and she was paying about $850 in rent, utilities, and other bills. The parties owned a vehicle, which they sold for $10,000 and used that money to reduce the balance on the vehicle loan to $4,000. Plaintiff was driving a vehicle purchased for her by her parents, but was trying to repay them $3,500. The parties were discharged in bankruptcy in 2004 after amassing a large amount of credit card debt. Plaintiff took out nearly 15 credit cards, including some in defendant's name without his knowledge or consent. At the time she filed for divorce, the parties had amassed a debt in excess of $37,000 on 18 credit cards. Plaintiff testified the credit cards were used for household items and cash advances to make house payments. She testified that defendant was aware of the various credit cards. Although the trial court found that plaintiff was primarily responsible for the debt, it concluded that the parties had to share the net liability and split the debt liability almost equally between them. However, the trial court awarded defendant 60% of his pension benefits and 50% of plaintiff's pension benefits. In awarding plaintiff $350 a month in spousal support, the trial court reasoned that the parties were married 27 years, defendant's income was greater, and he was awarded the greater share of the pensions. It stated that it tried to create a reasonable opportunity to allow the parties to "work their way out of the individual financial hole that they will find themselves in when this divorce becomes final." The court affirmed the trial court's allocation of the marital debt and held that the trial court did not err in awarding the spousal support.

untimely med mal filing is not saved by successor representative

2011-11-10T09:42:00.000-05:00

Noting that no binding authority exists that stands for the proposition a claim may be "revived" by the appointment of a successor PR when the original suit filed by the original PR was dismissed as untimely, the court held that the trial court abused its discretion by granting the plaintiff-PR's request for dismissal without prejudice. The trial court granted the defendants summary disposition on the basis that plaintiff's medical malpractice case was filed after the limitations period expired. Defendants appealed, objecting to language in the trial court's order indicating that the dismissal was "without prejudice" and not an adjudication on the merits. The material facts of the case were not disputed. The decedent was admitted to the defendant-hospital for a cholecystectomy on 8/13/07. He died due to postoperative complications on 8/19/07. Plaintiff was appointed the PR on 11/28/07 and delivered a notice of intent to sue to defendants on 10/2/09. The complaint was filed on 3/10/10. The court noted that the limitations period would have expired, at the latest, on 8/19/09. Since plaintiff was appointed PR on 11/28/07, she had until 11/28/09 to file suit during the saving period provided by MCL 600.5852. The trial court properly dismissed the case under MCR 2.116(C)(7) because it was untimely. However, the trial court dismissed the case without prejudice and with language indicating that the dismissal was not an adjudication on the merits on the basis that time remained under the savings provision for the appointment of a successor PR to pursue a case against the same defendants. Plaintiff cited Eggleston in support of her argument. The court concluded, inter alia, that the Michigan Supreme Court's decision in Washington "undermines the notion that notwithstanding an original" PR's "filing of an untimely complaint, a successor" PR "has the authority to pursue an action against the same defendants." The Supreme Court held in Washington that a successor PR is barred by res judicata from filing a later complaint when the first complaint is dismissed on statute of limitation grounds. "Defendants were entitled to summary disposition because plaintiff failed to file her claim within the period established by the Legislature. An order granting summary disposition based on the statute of limitations is an adjudication on the merits." Thus, they were entitled to dismissal with prejudice. Dismissal without prejudice was inappropriate because they would conceivably be subject to relitigation of the claim if a new PR was appointed. Being subject to a second suit that would otherwise be barred under res judicata would be legally prejudicial to the defendants. Reversed and remanded for entry of an order granting them summary disposition with prejudice.

Crime does not have to be charged to be excluded from insurance coverage

2011-11-10T09:40:00.001-05:00

While the trial court correctly concluded that the "criminal act" policy exclusion barred coverage for defendant-Boos's conduct toward defendants-Cook and Essex, the court held that the trial court erred in ruling that his conduct toward defendants-Bulko and Zubor did not fall within the exclusion. Thus, the court affirmed in part and reversed in part in this declaratory action to determine the availability of insurance coverage for civil claims Cook, Essex, Bulko, and Zubor brought against Boos, a former sheriff's deputy. It was undisputed for purposes of this case that Boos sexually assaulted Cook, Essex, Bulko, and Zubor while they were in his custody during his employment as a sheriff's deputy. Boos was terminated from his employment, and he pleaded guilty to three counts of CSC II for his actions toward Essex, Cook, and a third inmate who was not a party to this case. He did not face criminal charges for his conduct against Bulko and Zubor. Cook, Essex, Bulko, and Zubor sued the county, the county sheriff and jail administrator, and Boos in federal court, alleging that Boos violated their federal and state constitutional rights and their civil rights under 42 USC § 1983. Plaintiff-MMRMA then filed this case seeking a declaratory judgment that it had no duty to defend or indemnify Boos for the women's federal claims. MMRMA alleged that Boos engaged in criminal sexual contact with the women and that his unlawful conduct toward them was subject to the criminal act exclusion in the policy. The trial court entered a default judgment against Boos after he did not respond to the complaint. The trial court concluded that Boos's actions toward Bulko and Zubor did not fall within the criminal act exclusion due to "the absence of criminal proceedings for his assaults on Bulko and Zubor." However, the court noted that there was "no dispute that Boos's conduct toward these defendants constituted a crime" - CSC II. The trial court determined that the criminal acts were not "proven, admitted or non-contested" within the meaning of the policy because there were no criminal proceedings as to that conduct. The court held that Boos's failure to contest MMRMA's allegations in this case ("specifically the allegation that his conduct with Bulko and Zubor constituted criminal acts within the meaning of the policy") compelled the conclusion that coverage was also precluded as to those defendants. Since the policy did not define the terms "proven," "admitted," or "non-contested," the court referenced dictionary definition and concluded that "non-contested" means "not challenged, disputed, or contended." By virtue of Boos's default, all well-pleaded allegations against him, including that his conduct toward Bulko and Zubor constituted criminal acts, were deemed admitted."Nothing in the language of the exclusion requires that Boos be charged with or convicted of a crime.

Doctors cannot discrminate

2011-11-10T09:36:00.000-05:00

Concluding that the Legislature did not intend the result that a doctor could refuse to treat any patient based solely on a characteristic protected under the ELCRA (including race) and yet avoid legal liability, the court held that the trial court erred by dismissing the plaintiff's discrimination action as to denial of IVF services to single women. Plaintiff contacted defendants-Grand Rapids Fertility & IVF (GRFI) and Michigan Reproductive & IVF Center and specifically asked if the clinics would provide IVF services to a single woman. Both facilities responded that they did not provide IVF services to single women. She sued both, alleging a single count of discrimination based on marital status under the ELCRA. "First and foremost," the court rejected the trial court's conclusion "that a professional, such as a doctor, may reject a patient or client for any reason, including one based on discriminatory animus against a protected characteristic." For purposes of summary disposition, GRFI stipulated that it is "a place of public accommodation" to which the statutory prohibition of discrimination applies. The parties disagreed whether GRFI was able to "[d]eny [Moon] the full and equal enjoyment of" its services because the denial was otherwise "permitted by law." Assuming that the statutory exception includes discrimination permitted under the common law, the court disagreed with the trial court's "overly broad interpretation of the consensual and voluntary nature of the doctor-patient relationship." GRFI correctly noted that a doctor-patient relationship is contractual and may only be established voluntarily and through the consent, either express or implied, of both the doctor and the patient. However, the cases GRFI cited describe the creation of a doctor-patient relationship in establishing the necessary elements of a medical malpractice claim and absolve a doctor of medical malpractice liability where the doctor did not explicitly or implicitly consent to enter into a doctor-patient relationship with the plaintiff. GRFI did not cite "a single case in which a doctor was allowed to use the consensual nature of the doctor-patient relationship to discriminate against potential patients based on protected characteristics such as race or marital status." "Civil rights acts certainly serve to prohibit doctors and medical facilities from refusing to form a doctor-patient relationship based solely on a protected status. A contrary interpretation would allow a doctor to follow his personal prejudices or biases and deny treatment to a patient merely because he is African-American, Jewish, or Italian." After Michigan's enactment of its civil rights legislation, "a doctor may only deny his or her consent to enter into a doctor-patient relationship with a potential patient based on legally permissible, nondiscriminatory reasons." The court found Lyons instructive in this regard. The current case posed the similar question of whether a doctor may refuse to enter into a doctor-patient relationship with a patient based on discriminatory factors in violation of the ELCRA. The court held that the answer was clearly "No." The court also rejected the trial court's conclusion that plaintiff failed to create a genuine issue of material fact that GRFI discriminatorily rejected her as a patient. She clearly established that she was denied "enjoyment of the goods, services, facilities, privileges, advantages, or accommodations" offered by GRFI, which stipulated to being "a place of public accommodation" for purposes of summary disposition. The only question remaining was whether she created a genuine issue of material fact that GRFI discriminated against her based on marital status. She argued that she was given disparate treatment from married women. She proffered direct evidence of potential discrimination from the e-mail messages she received from Dr. D, indicating that GRFI did not provide IVF treatment to single women. The trial court's error stemmed from its application of the shifting burdens standard of McDonnell Douglas. Reversed and remanded.

Child support is a childs right

2011-11-10T09:35:00.002-05:00

Concluding that the trial court "misunderstood the scope of relief ordered" in the court's prior opinion, the court reversed the order denying the defendant-wife's motion to reinstate child support arrears that accrued before 4/28/04. The court also affirmed the order denying her motion to assess surcharges on all reinstated arrears, and remanded for further proceedings consistent with the court's opinion. In Laffin, the court held that a reciprocal alimony provision in the parties' consent divorce judgment, which provided that any child support obligation imposed on the plaintiff-husband after the exhaustion of a credit would result in a reciprocal alimony obligation imposed on defendant, in the same amount was "void as against public policy, because parties cannot bargain away their children's right to support." The trial court's orders of 4/28/04 and 5/19/04 were vacated because they enforced the void provision. The court determined that "defendant is entitled to relief extending back to April 28, 2004, the date the void order was entered." The case was remanded to the trial court for a "determination of plaintiff's appropriate child support obligation, retroactive to April 28, 2004." The court noted that it did not state that defendant was entitled to relief only from 4/28/04 to present. The court granted relief extending back to 4/28/04, because that was the date upon which the trial court first entered an order enforcing the void reciprocal alimony provision. The clear meaning of the court's opinion was that plaintiff's child support obligation was reinstated as it existed on that date. The court was reinstating the status quo before the trial court enforced the void reciprocal alimony provision. That status quo included not only the child support payments from that point forward to the present, but also plaintiff's child support arrearages that existed before the 4/28/04 order. On remand the trial court shall determine whether any interim child support arrearages existed for the period before the divorce judgment was entered, and if so, those arrearages shall be included in the total calculation of arrearages that were part of plaintiff's child support obligation before entry of the 4/28/04 order. Affirmed in part, reversed in part, and remanded.

new technology creates '1984' scenarios

2011-11-09T12:55:00.002-05:00

The government is free to attach a GPS device to the car of any American and record that person’s public movements for a month or more without a warrant or suspicion of wrongdoing, a government lawyer told the Supreme Court on Tuesday.

Even the nine justices.

“You could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month. No problem under the Constitution?” asked Chief Justice John G. Roberts Jr.

It is allowed under the court’s own precedents, replied Deputy Solicitor General Michael R. Dreeben, and is no different than if the FBI “put its team of surveillance agents around the clock on any individual and follow that individual’s movements as they went around on the public streets.”

But to many of the justices, something did seem different. In an intense hour-long exchange in which the Big Brother of George Orwell’s novel “1984” was referenced six times, the justices wondered how the dizzying pace of technology has changed a person’s reasonable expectation of privacy.

The justices pondered a world in which satellites can zero in on an individual’s house, cameras record the faces at a crowded intersection and individuals instantly announce their every movement to the world on Facebook. They wondered about the government placing tracking devices in overcoats or on license plates.

“How do we deal with this?” Justice Samuel A. Alito Jr. asked. “Do we just say, ‘Well, nothing is changed,’ so that all the information that people expose to the public is fair game?”

The court is trying to apply the Constitution’s centuries-old protection against unreasonable searches and seizures at a time when devices such as a GPS can essentially do police officers’ work for them.

The court, Dreeben said, has already settled the greater question: “What a person seeks to preserve as private in the enclave of his own home or in a private letter or inside of his vehicle when he is traveling is a subject of Fourth Amendment protection.”

He added: “But what he reveals to the world, such as his movements in a car on a public roadway, is not.”

Foreclosures may be improper in some cases

2011-11-09T12:55:00.001-05:00

On Thursday, the Michigan Supreme Court will hear arguments in a case that could affect a large number of home foreclosures.

The Court of Appeals ruled that mortgage lenders should not have used a national industry agency to file the foreclosures. The lower court found the Mortgage Electronic Registration System, or MERS, had no standing to file the foreclosure paperwork.

“Anytime you’re going to take the fast track on foreclosing and take another person’s property…you need to be able to do it correctly…and right ….and legitimately," sais Lorray Brown, an attorney with the Michigan Poverty Law Program.

Appeals court upholds health-care law

2011-11-09T12:53:00.000-05:00

A federal appeals court upheld the constitutionality of the 2010 health-care law Tuesday, granting the Obama administration another appellate victory as the law nears an expected final review by the Supreme Court.

In a 2 to 1 decision, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit found that Congress acted within its authority to regulate interstate commerce when it required virtually all Americans to obtain insurance or pay a penalty. The dissenting judge argued that the case should be dismissed because the challenge was premature.

There must be fault in wrongful death actions

2011-11-09T09:19:00.001-05:00

The trial court correctly granted appellee-Smith's (the PR) motion for summary disposition of appellant-Sparkman's emergency petition. Given that Sparkman failed to show that the estate possessed a legitimate or viable wrongful death claim against interested party-Comerica Bank, a wrongful death claim did not comprise a part of the SA between the estate and Comerica Bank, and Smith did not violate her fiduciary responsibilities to the estate. The decedent died by suicide. Comerica Bank filed a claim against the estate. During negotiations for a potential settlement, attorneys for the estate advised Comerica Bank of potential wrongful death or "lender liability" claims against the bank. The negotiations culminated in the SA. Sparkman (the decedent's son) filed an emergency petition urging the probate court to approve the settlement, on the condition that the probate court hold in escrow a portion of the settlement to which he claimed entitlement. The court held that "Sparkman did not establish a genuine issue of material fact that the estate possessed a good-faith, viable wrongful death claim against Comerica Bank." The evidence, including a memorandum authored by estate counsel G and the depositions of estate co-counsel G, M, and Z, established that no legitimate wrongful death claim could have been pursued in good faith against Comerica Bank. Sparkman did not identify a viable legal theory under which the estate could have proven some "wrongful act, neglect, or fault of" Comerica Bank that resulted in the decedent's suicide. The court concluded that the facts did not give rise to a reasonable inference that Comerica Bank engaged in any purposeful conduct that might form the basis for an intentional tort. In the context of a negligence action, the Supreme Court explained in Johnson that no duty to prevent a suicide exists unless the death was foreseeable. Nothing in the record suggested that Comerica Bank could or should have reasonably foreseen the decedent's death. No evidence reasonably substantiated that the estate in good faith could have asserted a wrongful death claim against Comerica Bank. Sparkman argued that a potential wrongful death claim against Comerica Bank nonetheless factored into the SA because the release of even a doubtful claim may qualify as consideration for a SA. However, the authorities he cited "clarify that withdrawal of good-faith claims may constitute consideration for entering into a" SA. The evidence showed that although the estate investigated whether a possible wrongful death claim could be brought, it determined that there were no facts or viable legal theory that would support a good-faith wrongful death claim against Comerica Bank, and Sparkman did not show that a colorable wrongful death claim was taken into account by the estate and Comerica Bank when they entered into the SA. His suggestion that Comerica Bank received no consideration in the SA if the estate did not have a valid wrongful death claim to release ignored the terms of the SA. The decedent and his business entities gave Comerica Bank mortgage notes and made other promises to pay back loans. Thus, the estate's SA promise to pay Comerica Bank $4,120,775 may be treated as a preexisting obligation. But the parties' waiver of certain terms of their original agreement amounted to consideration adequate to support their modification. Further, the estate gave Comerica Bank a broad release of any potential claims against the bank. The estate's release constituted adequate consideration for the SA. Affirmed.

Atty fees are between the Plaintiff and attorney

2011-11-09T09:06:00.002-05:00

In an order, the court reversed in part and affirmed in part the Court of Appeals judgment in a published case (see e-Journal # 45797 in the 5/17/10 edition). The court held that the Court of Appeals erred in relying on the "common fund" exception to the "American Rule" because no common fund was created. At issue was an attorney fee dispute arising from an action for benefits under the No-Fault Act. "As the Court of Appeals implicitly recognized," the DMC was not liable for the plaintiff's attorney fees under the Act. The court agreed that "plaintiff is responsible for payment of her attorney fees consistent with the contingency fee agreement. Consistent with the common-law American rule," the Act "generally requires each party to pay its own attorney fees." The court concluded that plaintiff's reliance on MCL 500.3112 was "unavailing because that provision, which permits equitable apportionment of personal protection insurance benefits among payees, does not encompass an award of attorney fees to an insured's counsel." The court was concerned "that the circuit court's order, and the Court of Appeals' affirmance, could be mistakenly interpreted as extinguishing the DMC's contractual right to payment for its services." The court made it clear that this was not the case. Through settlement, no-fault benefits were paid to plaintiff, and her attorney asserted an attorney's charging lien over the settlement proceeds. The "effect of this was only to settle claims as between the insurer, plaintiff, and her attorney. The circuit court's order of dismissal pursuant to the settlement agreement did not have the effect of extinguishing the DMC's right to collect the remainder of its bill from plaintiff." That result could not be achieved "without an explicit waiver, or at least unequivocal acquiescence, by the DMC, which was not obtained."

Father retains custody on appeal.

2011-11-09T09:06:00.001-05:00

Because the record contained ample support for the trial court's decision, the court affirmed the trial court's order affirming the referee's decision to grant primary physical custody to the plaintiff-father. The parties' minor child was born in 9/06. The trial court entered a final parenting time order in 1/09, which granted the parties joint legal custody with the defendant-mother receiving primary physical custody. In 9/10, defendant's mother, S, petitioned to be appointed temporary guardian of the child. At the 10/10 hearing on her petition, S testified that defendant had not lived with her for the previous two months, but that she had not permanently moved away. Defendant left the parties' son with S, while she stayed 180 miles away with her new husband. S testified, however, that defendant was once again living with her. Plaintiff moved to modify custody in 12/10, alleging that defendant did not reside with her mother, and left the minor child with S. Defendant argued that the trial court did not have authority to revisit the custody arrangement. S testified that defendant had not lived with her for two months before the guardianship hearing. Defendant agreed, and also admitted that she moved out again after that hearing for another two months. Plaintiff testified that he had not seen defendant or been aware that she was in town during that period other than for court dates. Thus, there was ample evidentiary support for the trial court's finding that "defendant had essentially abdicated her role as custodian of the minor child. This factual finding was not against the great weight of the evidence." Also, that finding constituted both proper cause and a change of circumstances. "Defendant's choice to move away from her son was a change in the conditions surrounding the custody of the minor child. The fact that the child was not in the day-to-day care of either of his parents was relevant to a number of the best interest factors, including (a) the love, affection, and other emotional ties between child and parent, (b) the capacity of defendant to give the child love, affection, and guidance and contribute to the child's education, and (d), the length of time the child lived in a stable environment." "Defendant's extended absence was also likely to have a significant impact on the child's well-being." The trial court noted that defendant married a registered sex offender and that this formed a basis to revisit the earlier order. This was supported by the parties' stipulation. "Given that defendant had primary physical custody of the child by virtue of the earlier order, and especially given that testimony was presented that the new husband could not be alone with the parties' minor child, that fact alone would support a finding that the circumstances surrounding custody had changed to such an extent that it did, or could have a significant effect on the child's well-being." The court held that the trial court's finding was not against the great weight of the evidence. Thus, the trial court was justified in finding both a change of circumstances and proper cause, and was free to consider a change of custody.

more Americans living in poverty

2011-11-08T12:26:00.000-05:00

The Census Bureau on Monday released a new, comprehensive poverty measure that painted a more dismal picture of the nation’s economic landscape than the official measure from September.

The report found that 49.1 million Americans — 16 percent of the population — lived in poverty in 2010, which is higher than the 46.2 million Americans found to live in poverty by the official measure released in September.

The new report marked the culmination of a years-long effort by the Census Bureau to come up with a poverty measure that takes into account the huge amounts of money in social services benefits provided to the needy, as well as their expenses for things such as medical care and payroll taxes.

The increased level of poverty revealed by the supplemental measure is at odds with what some poverty experts expected. The increased level of poverty was fueled by the sharply higher levels of poverty among senior citizens found by the alternative measure.

“The elderly just overwhelm it,” said Ron Haskins, a senior fellow at the Brookings Institution.

The poverty rate for those 65 and older was 15.9 percent based on the supplemental measure, much higher than the 9 percent rate for the elderly when using the official poverty yardstick.

The biggest factor increasing the poverty rate for seniors under the alternative measure was out-of-pocket medical expenses, which are not captured by the official poverty rate but are by the alternative measure. At the same time, neither the accumulated wealth of senior citizens nor their Medicare benefits are included in the official or supplemental measure, which some experts said skews the number of elderly who are counted as impoverished.

Among whites, 14.3 percent were found to be in poverty under the supplemental measure, more than a percentage point higher than the 13.1 percent poverty rate found by the official measure.

Hispanics had a poverty rate of 28.2 percent under the alternative measure, higher than the official poverty rate of 26.7 percent.

The proportion of black Americans living in poverty declined slightly under the alternative measure, from 27.5 percent under the traditional measure to 25.4 percent. Among children younger than 18, the poverty rate under the alternative measure was 18.2 percent, much lower than the official rate of 22.5 percent.

Although there are shortcomings, poverty experts say the supplemental measure offers a more comprehensive view of the nation’s poverty picture than the official measure.

Unlike the traditional method, it offers different poverty thresholds for renters, homeowners paying a mortgage and owners who have no mortgage. Overall, the new measure puts the poverty threshold at an annual income of $24,343 for a family of two adults and two children — higher than the $22,113 poverty threshold under the official measure.

The alternative measure also factors in the effects of payroll taxes and the cost of living in different parts of the country. In addition, it accounts for any government programs including the earned income tax credit, housing subsidies, food stamps and free school lunches.

“You could not look at our official poverty statistics and see any impact of government programs,” Haskins said.

son's cancer treatments headed to court.

2011-11-08T12:23:00.000-05:00

SKANDIA, Mich.— An Upper Peninsula family is fighting state negligence claims for refusing additional chemotherapy and radiation treatments on their 10-year-old son.

WWTV/WWUP reported Monday that a hearing is scheduled next month in Marquette County Probate Court.

Jacob Stieler is from of Skandia, about 15 miles southeast of Marquette. He was diagnosed earlier this year, treated and later declared cancer-free. His parents say further treatments are unnecessary.

But doctors say Jacob needs more chemo and radiation treatments, prompting the state Department of Human Services complaint.

Erin Stieler says the treatments made her son sick and depressed. The family is seeking alternative methods to nourish him and wants to discontinue conventional treatments.

The department says in an email that its involvement "was limited to bringing the case for review to the court."

homeowners eligible for a review of their foreclosure.

2011-11-07T16:32:00.000-05:00

Four million homeowners who may have been improperly foreclosed upon in 2009 and 2010 are getting an opportunity to have their cases reviewed. Whether they will be reimbursed is up to the same lenders who are accused of moving too swiftly to seize their homes.

The Office of the Comptroller of the Currency said last week that mortgage services will begin sending out letters this month that ask borrowers if they want their case reviewed.

The nation's 14 largest mortgage servicers — including Citibank, Bank of America, JPMorgan Chase and Wells Fargo — were ordered to offer to review cases after the government found that some rushed the foreclosure process without carefully reviewing documents.

The orders require the lenders pay homeowners when a "borrower suffered financial injury." There is no minimum or maximum dollar amount identified.

Critics, including congressional Democrats, say the orders were too lenient on the banks and that it was inappropriate for the lenders to review their own potential mistakes.

"Servicers have a poor performance track record in effectively engaging with borrowers, and, in the claims process, have a natural disincentive to reach the households their practices have harmed," wrote Rep. Maxine Waters, D-Calif., to regulators.

Families sue over sewer backups

2011-11-07T16:31:00.001-05:00

Christine and Richard Montagna wanted help from Warren city officials after a May sewer backup left their basement floor covered with 4 inches of putrid water.

"I was hysterical. I was fit to be tied," Christine Montagna said. "Now, when it starts to rain, I cringe."

The Montagnas say they didn't get the help they needed and are now suing the City of Warren in Macomb County Circuit Court, along with about 135 other plaintiffs.

The couple is part of a growing trend among metro Detroit homeowners who are turning to the courts because they believe sewer backups are avoidable and, therefore, the fault of city officials.

The lawsuits come at a time when cities no longer get insurance coverage with limits high enough to cover large court judgments related to sewer backups.

One Detroit-based law firm, Macuga, Liddle & Dubin, has filed lawsuits this year against the cities of Warren, Livonia and Grosse Pointe Farms on behalf of clients after heavy rains May 25-26 caused basements across metro Detroit to flood with raw sewage and rainwater.

Steven Liddle, an attorney with the firm, said it also is considering lawsuits in Garden City, Westland, Dearborn Heights, Allen Park and Detroit.

Dog owner wins bite suit

2011-11-07T16:29:00.000-05:00

An Upper Peninsula man who wanted straw says he ended up with a knee injury and a severed finger, all related to a dog bite. Three years later, the Michigan appeals court says it's not the owner's fault.

The court agreed with a Menominee County judge who dismissed a lawsuit against Joseph Grinsteiner.

Dale Tieman says a dog bit him after he pulled into Grinsteiner's driveway in 2008 hoping to buy straw. Tieman says he also hurt his knee while turning away.

Weeks later, Tieman says he severed a finger when the bad knee gave out while using a router. He claims it's all related to the dog bite. But the appeals court says Tieman wasn't invited to the home and the owner had no obligation to leash the dog.

Court puts end to Detroit broken ankle lawsuit

2011-11-07T16:28:00.000-05:00

A man who broke his ankle near the Detroit River won't be getting any money from the city of Detroit.

The Michigan Supreme Court says it doesn't need to hear arguments to throw out the lawsuit by George Williams. The case had been dismissed by a Wayne County judge but revived last year by the state appeals court.

The Supreme Court recently said Judge John Gillis got it right.

Williams broke his ankle on a pedestrian path controlled by Detroit, not a highway. The Supreme Court says the city therefore is immune to liability under state law.

grandparent visitation laws

2011-11-07T16:23:00.001-05:00

HARTFORD, Conn. – Increasingly, a wrenching dispute is playing out in courts nationwide: balancing parents' constitutional rights to raise their children without interference against grandparents' desire to be involved in those youngsters' lives.

Now, a growing number of grandparents are pushing lawmakers around the country to change state standards they say are too restrictive and ignore the unique bonds many grandparents have with their grandchildren.

The U.S. Supreme Court is expected to decide this winter whether it will revisit the issue, which it addressed 11 years ago in a landmark case out of Washington state that makes competent parents' wishes the guiding principle in most disputes.

Although all state laws must meet that constitutional threshold, their efforts have resulted in a patchwork of state court rulings and legislation. They now impose such a variety of conditions that the parties' home states can affect the cases almost as much as the specifics.

Connecticut has become a battleground state in the issue for two reasons: its protections for parents are among the nation's strictest and many of its grandparents are very vocal in their push to change it.

A task force will advise the General Assembly this winter on whether to change state law to give grandparents more chance to get into court to argue their cases.

"Right now it's the luck of the draw if you're some poor family stuck in a state that doesn't stand behind that grandparent-grandchild bond and attachment," said Susan Hoffman, 59. She founded Advocates for Grandparent Grandchild Connection after losing her California petition for visitation when her adult son signed away parenting rights to her grandson.

The growing movement among grandparents' groups has alarmed many parents and their advocacy groups nationwide, including organizers and participants on the parentsrights.com website.

Many say they are being pilloried by those who wrongly accept stereotypes that all grandparents are loving and supportive. And they say they're being drained financially to defend parenting rights the Supreme Court has already upheld.

Repeal motorcycle helmet law.

2011-11-04T10:06:00.000-04:00

LANSING -- Legislation to end the requirement that Michigan motorcyclists wear helmets won easy approval Wednesday in the state House, igniting hope among anti-helmet enthusiasts that they may finally be close to their goal.

Under the bill, approved 69-39, motorcyclists 21 and older would have the option of riding helmet-free if they have two years of experience or have taken a safety course, and if they buy at least $20,000 in medical insurance.

The legislation now returns to the state Senate, where an earlier version was adopted in June, and then potentially to Gov. Rick Snyder.

Vince Consiglio, from the motorcyclist group ABATE of Michigan, which has led a decades-long effort to lift the requirement, said he was optimistic the Senate would concur and was hopeful Snyder would sign the legislation.

Former Gov. Jennifer Granholm twice vetoed measures to end the helmet requirement, but Snyder has hedged on the question and said again Wednesday that he would wait until a bill reached his desk before making any judgment.

State Rep. Paul Opsommer, R-DeWitt, a leading advocate for repeal, said it would "open our roads to many out-of-state riders who currently avoid the state" because of Michigan's helmet law.

Opsommer said motorcyclists should have the freedom to choose whether to wear a helmet, and he disputed claims that a repeal would result in more catastrophic injuries and higher medical costs from motorcycle accidents. That has not occurred in other states where helmet requirements were repealed, he said.

But state Rep. Dian Slavens, D-Canton, said evidence of a higher incidence of serious injury and death without helmets is irrefutable and that $20,000 in insurance coverage is woefully inadequate, pushing the cost of medical care onto health providers, insurance companies, consumers and government programs.

"The price of personal freedom ... is borne by the entire community," Slavens said.

House OKs workers comp update.

2011-11-04T10:05:00.000-04:00

LANSING -- Legislation that could help employers reduce costs related to compensating workers injured on the job was approved Wednesday by the Republican-led Michigan House.

The chamber approved the bill by a 59-49 vote, mostly along party lines. The bill advances to the Republican-led Senate now.

Republicans say the measure could help crack down on fraud and encourage injured workers to seek employment when they're able.

The proposal clarifies that a personal injury would be one sustained while working or as a result of the job. It also distinguishes between total and partial disability.

"Michigan's workers compensation law has been causing confusion for business owners and employees for too long and these changes will eliminate that confusion and help reduce the need for court cases to settle workers comp claims," Bradford Jacobsen, R-Oxford, the bill's sponsor, said in a statement.

But Democrats opposing the measure say it could become harder for injured employees to receive benefits they deserve. Opponents also are concerned that injured workers seeking to get a second medical opinion or visit their own doctors would have to do so at their own expense.

Rep. Jon Switalski, D-Warren, questioned whether an injured police officer not physically able to return to law enforcement could be expected to take a job as a telemarketer rather than risk losing benefits during rehabilitation.

"This is not reform," Switalski said in a statement. "This is regression."

The changes to the law wouldn't affect people currently receiving benefits or with pending claims.

Arthur Johnson, civil rights icon and comrade of MLK Jr., dies.

2011-11-03T11:05:00.001-04:00

A crowd of movers and shakers was exiting an event at the White House during the Clinton administration. Among them was Wayne State University President Irving Reid.

As Reid was leaving, civil rights leader and Clinton adviser Vernon Jordan called out, "When you get back to Detroit, be sure to tell Arthur Johnson hello!"

"He didn't say the mayor," Reid recalled. "He didn't say the governor. He said tell Arthur Johnson. I think that speaks volumes about who Arthur Johnson was. He was a quiet man of enormous strength."

Human rights activist, educator and arts advocate Arthur Johnson died at home Tuesday after an extended illness, prompted in part by the debilitating effects of Parkinson's disease, said Trevor Coleman, family spokesman and former Free Press editorial writer. Johnson was 85; he would have turned 86 on Saturday.

"When I came to Detroit there were three men I looked up to: Coleman Young, Damon Keith and Art Johnson," said Detroit Mayor Dave Bing, upon learning of Johnson's passing. "They were the kind of role models who represent what we expect in strong black men. They were sensitive to the issues facing our people and weren't afraid to stand up and speak out.

Mold Exposure

2011-11-03T11:02:00.001-04:00

Dr. Shoemaker has broken new ground in teaching us about the importance of the innate immune system and its pivotal role in inflammation and chronic illness. His research into the details of just how body systems break down in the face of specific triggers provides answers for some of the challenging health issues that face patients and practitioners. Even some of the most baffling symptoms become understandable when you know how biotoxins impact the body of someone who has a genetic susceptibility. Dr. Shoemakers website survivingmold.com is an excellent contribution to our society and coping with mold exposure.

Judge blocks welfare cutoffs for families.

2011-11-01T15:47:00.000-04:00

Michigan's plan to end welfare cash assistance for about 11,000 families was at least temporarily blocked by a court order Monday, the second delay for some of the cuts.

Genesee County Circuit Judge Geoffrey Neithercut blocked the Michigan Department of Human Services from using a five-year lifetime limit based on federal regulations to end benefits for some welfare recipients. Some families were expected to begin losing benefits this month, but the injunction would prohibit that while a related court case continues.

The state quickly appealed the ruling to the Michigan Court of Appeals.

Monday's ruling doesn't affect roughly 100 families expected to lose their benefits this month because of a new state law that restricts lifetime benefits to four years.

The five-year limit stems from a Department of Human Services policy based on federal regulations. The five-year limit would apply to cases that began prior to Oct. 1, 2007, and could cover welfare cases that began as early as 1996.

The Center for Civil Justice, which sued on behalf of welfare recipients, says the five-year limit does not include all of the exemptions required by state law.

4 people in Amish buggy injured

2011-11-01T09:29:00.000-04:00

A pickup truck has crashed into an Amish buggy in southern Michigan, injuring a man and three children.

Authorities in Branch County say the 64-year-old driver of the pickup is suspected of drunken driving. The crash occurred around 6:45 p.m. Sunday.

The victims in the buggy were a 52-year-old man and children, ages 10, 12 and 14. The 12-year-old girl was taken to Bronson Methodist Hospital in Kalamazoo.

The pickup driver was locked up in the Branch County jail in Coldwater, 60 miles southeast of Kalamazoo.

Limits on Patient Suits.

2011-11-01T09:28:00.000-04:00

Oct. 31 (Bloomberg) -- The U.S. Supreme Court left intact a ruling that let a woman sue Stryker Corp. over a recalled artificial hip, as the justices refused to reinforce the limits on patient lawsuits against medical-device makers.

The high court today rejected Stryker’s appeal in the case of Margaret J. Bausch, an Illinois woman who received a replacement hip six days after federal regulators warned about problems at a company manufacturing facility.

Stryker’s appeal sought to strengthen a 2008 Supreme Court ruling that said patients generally can’t press state-law product liability suits over products that undergo the Food and Drug Administration’s most intensive review process, known as pre-market approval.

In letting Bausch’s suit go forward, a Chicago-based federal appeals pointed to an exception the Supreme Court made in the 2008 decision allowing so-called parallel claims -- state lawsuits alleging a violation of FDA requirements.

The FDA warning stemmed from an investigation of Stryker’s Cork, Ireland, facility. The agency told the company in March 2007 that it needed to correct manufacturing failings at the plant.

The following year, Kalamazoo, Michigan-based Stryker recalled hip and knee replacements made at the Cork plant, allegedly including the device that had been implanted in Bausch. She then underwent a second surgery to have the device replaced.

Merck Can Block Teva on Generic Temodar as Court Rejects Appeal.

2011-11-01T09:26:00.000-04:00

Oct. 31 (Bloomberg) -- The U.S. Supreme Court left intact a ruling that lets Merck & Co. block Teva Pharmaceutical Industries Ltd. from selling a generic form of the brain-cancer drug Temodar until 2013.

The justices today turned away an appeal by Teva’s Barr Laboratories and Barr Pharmaceuticals units, which contended that a Merck patent protecting the drug was unenforceable. A U.S. appeals court had rejected that argument.

The two sides agreed last year that if Merck and its Schering unit won the court fight, Teva could begin selling copies of Temodar in August 2013, six months before the patent expires. The legal fight also affects Perrigo Co., which will eventually supply the active ingredient for Teva’s version.

Temodar, approved by U.S. regulators in 1999, generated $704 million in global sales during the first nine months of this year.

A federal trial judge last year ruled against Schering and its British licensor Cancer Research Technology Ltd., saying they took too long to pursue the patent and didn’t provide sufficient information to the U.S. Patent and Trademark Office.

The U.S. Court of Appeals for the Federal Circuit then reversed that decision, saying no one was harmed from the nine- plus years it took Cancer Research to obtain the patent. The panel also ruled that the inventor hadn’t intended to deceive the patent office when he failed to disclose a paper he had written about the compound.

Merck, based in Whitehouse Station, New Jersey, is the second-largest U.S. drugmaker by revenue behind Pfizer Inc. Teva, the world’s biggest generic-drug company, is based in Petah Tikva, Israel.

Termination of Parental Rights

2011-10-28T11:51:00.001-04:00

Holding that the trial court did not clearly err in concluding that terminating the respondent-mother's parental rights was in the minor child's best interests, the court affirmed the trial court's order terminating her parental rights. The evidence was undisputed that respondent had her parental rights to six other children terminated due to her inability to adequately address her substance abuse. She continued to abuse alcohol and marijuana after she became pregnant with the child at issue in this case. The child's premature birth and low birth weight were attributed to respondent's substance abuse. At the termination hearing, respondent was eager to share with the trial court that she independently entered an inpatient substance abuse treatment facility. "However, it was apparent from respondent's testimony that she had not truly acknowledged her substance abuse." She initially denied at the termination hearing that she used substances during her pregnancy, explaining that the marijuana in her system was caused by her exposure to secondhand smoke. Even when she eventually admitted to using drugs during her pregnancy, she asserted that she quit using a month before she prematurely delivered the child. "Because respondent still had not completely acknowledged the impact of her substance abuse, it was readily apparent that it would be a very long time before she would be able to demonstrate an ability to sustain a substance-free lifestyle." The court concluded that this determination was "bolstered by the report from respondent's Clinic for Child Study evaluation." While the clinician acknowledged that respondent seemed to have some insight about her addiction and recently participated in a substance abuse program, he concluded that in light of her history, "it would take a considerable length of time" before she could show that she had "successfully addressed her longstanding personality issues and patterns of behavior." The clinician opined that it was not in "the child's best interests to wait that long for stability and permanence." The child, who was still being monitored for medical conditions related to the circumstances of her birth, required permanency and stability to foster her continued development and growth. Respondent was not in a position to provide that permanency and stability, "and it would be a very long time, if ever, before she would be able to demonstrate that she could properly parent her child."

Common work area doctrine

2011-10-28T11:50:00.000-04:00

The court held that the trial court properly granted defendant-KCS Resources' motion for summary disposition after finding that plaintiff could not satisfy all the elements of the "common work area doctrine" set forth in Funk. Plaintiff-Davis, Jr., worked as a derrick hand for Team Well Services. KCS Resources subcontracted with Team Well Services to drill an oil well as part of an oil exploration project it was conducting on its property. Defendant hired Oil Ex, Inc. to act as a general contractor and oversee all the project work. Defendant also hired numerous other companies as subcontractors for different tasks. While Davis was working on Team Well Services' derrick, a cable upon which he was relying to prevent a fall snapped. Davis fell 20 to 25 feet and sustained serious injuries. Plaintiff, citing Clark, argued that defendant breached its common law duty not to act negligently. In Clark, the defendant and the plaintiff worked together closely and the defendant specifically applied a substance to the plaintiff's work area that caused the plaintiff to slip and injure himself. In this case, defendant was not present at the work site and, instead, relied on other individuals to perform all the work. Further, Davis was injured as a result of a safety equipment failure, and the equipment at issue was owned and fully controlled by Davis' employer, not by defendant. There was no evidence presented to the trial court that defendant knew or should have known about the dangerous condition of the cable. The facts of this case did not support a conclusion that defendant acted negligently. Thus, Clark was factually distinguishable and did not support plaintiff's claim of liability on the part of defendant pursuant to common law negligence principles. The undisputed facts demonstrated that plaintiff was injured while working on a derrick operated solely by Team Well Services, his employer. There was no evidence presented that any employees of the other subcontractors worked on, or would have reason to work on, the derrick. The other subcontractors were hired to perform different jobs. Team Well Services alone was hired to drill the oil well. Thus, the location where plaintiff was injured was "a situation where employees of a subcontractor were working on a unique project in isolation from other workers." Therefore, plaintiff was not injured in a common work area. Nor could plaintiff succeed under a theory of premises liability. Premises liability involves dangerous conditions on the land. Plaintiff's accident involved machinery owned by his employer, not a condition on the land. Affirmed.

Medical Malpracitce

2011-10-28T11:26:00.000-04:00

PROCEDURAL POSTURE: The Michigan Court of Appeals entered a judgment that found plaintiff estate representative's medical malpractice complaint, filed on behalf of decedent's estate, had to be dismissed because the affidavits of merit filed with the complaint were insufficient. It then added that dismissal had to be with prejudice because the complaint had not been filed within the applicable limitations period. The state supreme court granted his review request.

OVERVIEW: Decedent went to defendant hospital's emergency room and allegedly received substandard medical care. She died one week later. A medical malpractice complaint was not filed within the two-year statute of limitations period provided in MCL 600.5805(6). Instead, the estate representative filed suit within the saving period afforded him under MCL 600.5852 permitting commencement of an action at any time within two years after letters of authority were issued "although the period of limitations has run" as long as commencement was "within 3 years after the period of limitations has run." However, the affidavits of merit (AOM) he provided were defective. No time was left to toll under the savings period. The trial court denied the summary disposition motion filed by defendants, a doctor and his practice group. Eventually, the appellate court found that dismissal with prejudice was required. The state supreme court agreed that the estate representative's failure to timely file the action meant such a dismissal was required, as an AOM was not a pleading that could be amended retroactively under the applicable version of MCR 2.118 since it was merely a required, separate document.

OUTCOME: The state supreme court affirmed the appellate court's judgment dismissing the estate representative's case with prejudice.

Michigan..fewest health options in nation.

2011-10-27T12:51:00.000-04:00

Michigan has the fourth least competitive health insurance market in the country, meaning consumers and employers have fewer choices for health insurance than in most other states, according to a report by the American Medical Association.

Only Alabama, Alaska and Delaware had worse markets for health insurance competition, according to the report that used 2009 enrollment in health maintenance organizations and preferred provider organizations from 368 metropolitan areas and 48 states to come up with its findings.

In Michigan, the nonprofit Blue Cross Blue Shield of Michigan — the state's insurer of last resort — controls 71 percent of the state's commercial health insurance market, the association found.

The Blues control two-thirds or more of the commercial health insurance market in 13 of 15 metro areas surveyed across the state. In the Jackson area, the Blues had an 85 percent market share, marking the state's least competitive health insurance market, the report said.

In the Detroit-Livonia-Dearborn area, the Blues have a 55 percent market share, followed by Detroit-based Health Alliance Plan with 26 percent. The Blues have a 69 percent market share in the Warren-Farmington Hills-Troy area, while HAP has a 16 percent share there.

Blues spokeswoman Helen Stojic, however, cited two studies that point to a competitive insurance environment in Michigan.

A September 2009 report from the White House found Michigan's employer-sponsored insurance coverage for families had the lowest premium increases in the nation at 88 percent over a 10-year period.

A May 2010 report by Ken Ross, former Michigan Office of Financial and Insurance Regulation commissioner, found that while the Blues is the dominant carrier in the small employer market, there is a "reasonable degree of competition" in that market statewide and the Blues' size hasn't prevented other insurers from entering the market.

A June report from current OFIR Commissioner R. Kevin Clinton essentially came to the same conclusion.

But the Michigan Association of Health Plans, which represents 17 health plans with 2.1 million members, argues that the size of the Blues needs to be looked at during the review of the Blues' 31-year-old statute by the Snyder administration and Legislature.

Last month, Gov. Rick Snyder called for a "fresh look" at Blue Cross' unique legal and regulatory requirements to encourage competition, lower rates and provide access to high-quality care.

Nationally, the medical association found four of five metro areas have an anti-competitive commercial health insurance market.

"Our new report is intended to help regulators, lawmakers, researchers and policymakers identify markets where mergers among health insurers may cause competitive harm to patients, physicians and employers," Dr. Peter W. Carmel, American Medical Association president, said in a statement.

Lawmakers meddle in marriage and divorce

2011-10-27T10:13:00.000-04:00

After passing the "Hot for Teacher" bills last week, the Senate Judiciary Committee continued its social engineering agenda this week by taking up legislation supporters say would make sure the wrong people don't get married.

The Senate panel chaired by alleged conservative Sen. Rick Jones (R-Grand Ledge) passed out legislation last week that would make it a felony for an adult student to have sex with a teacher or employee at his or her school. Under the "Hot for Teacher" bills, consent between legal adults would cease to exist in that case.

This week it was more fun from the folks who campaigned on jobs, jobs, jobs. Democrats got in the game with their own bills to intervene in your private life. SB 545 would extend the waiting period to get married from three to 28 days if folks don't complete a premarital education class.

Judge James Sheridan of Adrian, who sells a book on his version of the biblical marriage, said this would be a good thing, as 14 percent of couples don't get married after going through the course because they realize it's a mistake.

"This is definitely crossing a line of what government should be involved in," objected Shelly Weisberg of the ACLU Michigan. "Who's to say what makes a good marriage for two people?"

There's also SB 546, which makes it harder to get divorced. Couples would have to complete a questionnaire and complete an ominous-sounding "divorce effects" program before dissolving their union if you have kids. Because the process is so much fun, the state has decided to add to the joy.

"We are a pro-divorce society," Sheridan said. "We need to be a pro-marriage society."

It's true. There are a million divorce magazines out there -- Modern Divorce, Midwest Divorce and the traditional Divorce. There are no bridal mags at all. Most young adults face inordinate peer pressure to get divorced and none to get married.

Stay tuned for the next episode in the alternate social engineering universe that is the Senate Judiciary Committee

Civil forfeiture not always appropriate

2011-10-27T10:05:00.001-04:00

The use of civil forfeiture of property in connection with crime has escalated in recent years. Last year it brought hundreds of millions of dollars to federal and local law enforcement coffers.

An example from Tewksbury, Mass., suggests it's gone too far.

A Wall Street Journal article describes Motel Caswell, in the same family since it was built six decades ago, in a good section of town that has become somewhat seedy.

The independent motel catered to middle-class travelers. Now it houses some travelers, people looking for work, some forced out of their homes and a few welfare cases, including some placed by local agencies.

Inevitably, some crime occurs. Owner Russell Caswell, who lives next door, said he keeps a close eye on the motel, calls police whenever there's trouble and keeps a log of police contacts, as well as a do-not-rent-to list. Police acknowledge his cooperation.

The U.S. Justice Department, however, reports that between 2001-2008, seven police investigations involving drugs at the motel resulted in eight convictions for drug-related crimes. The agency listed more than 100 investigations since 1994.

Caswell hasn't been charged with any crime. But the feds want to take his property, valued at about $1 million with no mortgage. The local police department stands to receive $800,000.

We have some idea how difficult it might be to operate an independent motel. Several years ago, Royal Oak officials came down hard on several motels, not just for drug activity, but for frequent disturbances, assaults and other crimes. The warning to the owners: Control your guests. Several of those motels eventually closed. To our recollection, none went through a forfeiture process. Is it possible that the Caswell family knew more about its guests that it lets on?

Sure, but we don't know that.

Forfeiture in a criminal case is an appropriate part of the penalty. If a person is convicted of a crime, property used in the commission of the crime should be forfeited. But civil forfeiture is fraught with problems, among them a conflict of interest: The property presents a tempting target, especially for a small police department.

New program to help 'underwater' homeowners.

2011-10-25T12:34:00.001-04:00

President Obama on Monday responded to growing concerns about the nation’s battered housing market by unveiling a plan to help reduce the monthly mortgage payments of homeowners who owe more than their properties are worth.

As he met with distressed homeowners in Las Vegas, the foreclosure capital of the nation, Obama announced steps to allow “underwater” borrowers to refinance their mortgages at today’s ultra-low rates — near 4 percent.

The move comes amid a rapidly growing consensus that the nation’s moribund housing market is holding back the economic recovery. Home values are hovering at eight-year lows, and more than 10 million people are underwater, or owe more than their homes are worth.

“It’s a painful burden for middle-class families,” Obama said. “And it’s a drag on our economy.”

Welfare bill borders on inhumane, cutoffs loom.

2011-10-25T12:31:00.001-04:00

SAGINAW — Ruth A. Deshone will feel the cutoff of a $403 cash assistance check once the state aid dries up Nov. 1.

“I’m not going to have money to buy shoes for my child, clothes for school,” said Deshone, 46, the mother of a 7-year-old.

Utility bills won’t wait for payment either, she said. “It wasn’t enough to pay the bills, but it helped.”

Deshone will have met the 48-month lifetime limit for welfare cash assistance, according to the Michigan Department of Human Services. The Saginaw resident said she’s always followed DHS eligibility rules, applied for more than 500 jobs over the years, and netted temporary work but nothing permanent. And she’s taken classes, too. “Now I have health issues,” she said.

Lifetime care is focus of no-fault fight.

2011-10-25T12:30:00.000-04:00

Lansing— Debate over no-fault auto insurance is heating up in Lansing with Republicans divided over a House bill that would eliminate lifetime medical coverage.

Michigan is the only state to offer unlimited lifetime medical care for people involved in life-altering car accidents, a benefit that proponents say drivers can no longer afford.

The bill would allow motorists to choose less expensive plans offering from $500,000 to $5 million in medical coverage, and would also enact cost-saving measures such as limiting the hours and pay for attendant care. Hospitals and doctors would be placed on a fee schedule in an attempt to bring down medical care costs.

"I don't feel what's proposed takes care of people and that's why I voted no," said state Rep. Mike Callton of Nashville, one of two Republicans on the House Insurance Committee to oppose the bill. The other was state Rep. Joel Johnson of Clare. Democrats also oppose the plan.

Supporters of the bill, including Michigan Insurance Commissioner Kevin Clinton, say changes must be made because the Michigan Catastrophic Claims Association, which covers medical bills over $500,000, is headed for insolvency. Opponents contend most motorists will opt for the cheapest policy, which won't meet their needs if they get in a serious accident.

"The uncertainty inherent in estimating unlimited (personal injury protection) … makes the current situation unsustainable in the long run and may place a significant financial burden on our citizens," Clinton testified in a contentious, packed hearing on no-fault reform.

The bill is now under discussion by the full chamber after passing out of the House Insurance Committee on Oct. 13.

Rep. Pete Lund, R-Shelby Township, chairman of the House Insurance Committee, said more residents will buy auto insurance if it's made more affordable as a result of reducing medical costs.

"We have some of the highest numbers of uninsured people in the country," Lund said. "And if you keep raising the price up higher and higher, you're going to have more people opting not to get insurance."

Drivers pay an annual assessment to the catastrophic claims association that goes into a fund to reimburse auto insurance companies. The association sets the assessment based on estimates of how much money is needed to cover the lifetime costs of people catastrophically injured that year, as well as to pay off the system's liabilities. The fee is $145.

Voters wary of past changes

Voters have twice thwarted efforts to modify Michigan's no-fault law. One measure to cap no-fault benefits was voted down in 1992. The Legislature passed a no-fault reform bill the next year, and in 1994 voters overturned it.

The Insurance Institute of Michigan reports that more than 99 percent of claims fall under $250,000 and the group argues that it's easy for medical providers to take advantage of Michigan's sweeping pledge of unlimited medical coverage.

"It's created an environment where the costs accelerate beyond anybody's imagination," said Pete Kuhnmuench, executive director of the institute, an association of about 80 property/casualty insurance companies.

Accident victims and their caregivers say it's not right to take away coverage that was guaranteed when they purchased their no-fault policies. No-fault law protects the insured from being sued for an auto accident except in certain situations, according to the state's Office of Financial and Insurance Regulation. .

Even though Donna Jones' son, Bradley, had gone through an accident, she said, "In the back of my mind I was relieved because with the no-fault law he was covered for life."

The Clinton Township mother provides care 24 hours a day for Bradley, 27, who suffered brain trauma in an auto accident at age 19.

Bradley spent months in hospitals and in a rehabilitation facility relearning how to swallow, eat and speak. He spent years in a wheelchair, but can now walk with a cane.

"We celebrate the date every year that he said his first word — it was Sept. 3, and his first word was 'cup,'" Jones said.

Jones spent so much time at her son's bedside she was fired from her job, she said, lost her home to foreclosure and had to move in with her mother. When Jones' son recovered enough to return home, no-fault auto insurance paid for her to provide 24-hour care. Eventually, the family was able to buy a house, which cost about $120,000 to make handicap accessible.

Pay could be cut

"Under the no-fault law, you have attendant care, which means a family member will get paid for taking care of the patient, so I was able to take care of my son while he lived in his own house," Jones said. "Otherwise, he would be in a group home and not with his family."

Jones is paid $13 an hour to care for her son. Under the House bill, Jones' pay would be capped at $11 an hour, and her son would be entitled to eight hours of attendant care per day. Jones' income would no longer allow her to stay home with him, and she fears Bradley would be forced into a nursing home to get the 24-hour care he needs.

"I'm losing medical benefits that provide him this house, and it's not only my son — there're thousands of people out there right now who are injured who are going through the same things."

Lund, the Shelby Township legislator, said out-of-control expenses for attendant care have contributed to the claims association $1 billion deficit.

"Eventually, this system will collapse," he said.

Laura Appel, vice president of federal policy and advocacy for the Michigan Health and Hospital Association, disagrees and said if the fund needs more money, the fee could be increased — just as it has been in previous years when there has been a deficit.

"Some years we're a little ahead, currently we're a little behind — and last year we were more behind," Appel said. "We continue to make up the deficit, and that's part of the process."

If Michigan's system is changed, the question of who pays for the medical bills will be hashed out in court, Appel said. Patients will ultimately exhaust all of their resources and end up on Medicaid.

"We have a very good system," she said. "We each take personal responsibility for the risk of driving, and we think that's a better system than using lawsuits and Medicaid."

Art gallery ownersentenced to seven years in prison

2011-10-24T11:57:00.000-04:00

Detroit— Art gallery owner Sherry Washington was sentenced Thursday to seven years in prison for her role in a fraud and kickback scheme and ordered to pay $3.32 million to the cash-strapped Detroit Public School District.

U.S. District Judge Paul Borman called Washington's conduct "terrible," but stopped short of sentencing her to the 10 years requested by federal prosecutors. He did not believe the public needs to be protected from Washington committing other crimes.

"This was continuing, criminal, secretive, fraudulent conduct involving kickbacks," Borman said.

Minutes earlier, Washington begged for mercy.

"I am deeply apologetic for getting myself into this situation," she told the judge. "I am very sorry for the hurt and great pain I have caused to my family and this community. I pray and plead for your mercy."

After being sentenced, Washington sobbed at the defense table, holding her head in her hands long after the judge, prosecution team and her supporters left the courtroom.

Washington's lawyer said she plans to appeal the sentence.

There was no answer at the Sherry Washington Gallery on Friday and it is uncertain how the business will continue to operate.

The sentence comes almost four months after a jury convicted Washington of conspiracy to commit program fraud and conspiracy to launder money. Washington was accused of helping raid more than $3 million from the district and paying $150,000 in kickbacks to schools executive Stephen Hill.

Assistant U.S. Attorney Michael Buckley, who labeled Washington a thief, said he was satisfied and said the millions stolen by Washington could have been spent on laptop computers, field trips, books or teacher salaries.

"Justice was done," Buckley said.

Washington and her sister, Gwendolyn Washington, were partners in Associates for Learning, a vendor hired to administer a health-awareness program for district employees.

The program was supposed to cost $150,000. But the company submitted three inflated and fraudulent invoices, each for about $1 million, according to prosecutors.

DPS paid the money, 5 percent of which went to former schools executive Stephen Hill. Washington delivered the kickbacks to Hill inside her gallery, at her home, and in a covered parking garage at the Detroit Athletic Club.

Washington was the only one of nine defendants charged in the case to stand trial in U.S. District Court in Detroit.

Seven others have pleaded guilty, while another defendant, former DPS employee Christina Polk-Osumah, died.

Hill was sentenced to five years in prison last month.

Minutes before Washington was sentenced, Borman sentenced her sister's niece, Detroit resident Virginia Dillard, to more than nine years in prison for a separate drug case.

The following codefendants were sentenced to various prison terms, including:

Sally Jo Bond: 18 months in prison and $3.32 million restitution.

Marilyn White: 21 months in prison and $3.32 million restitution.

Duane Polk: 27 months in prison and $788,674 restitution.

Valerie Polk: 18 months in prison and $347,746 restitution.

Thomas Taylor: one year and a day in prison and $440,928 restitution.

Gwendolyn Washington: She will be sentenced Nov. 14.

Detroit police officer charged for faking court dates for pay.

2011-10-24T11:56:00.000-04:00

A Detroit police officer, accused of wrongfully being reimbursed for going to court on days he didn’t go, has been charged, according to the Wayne County Prosecutor’s Office.

Officer Frank Senter – charged with five counts of uttering and publishing, four counts of forgery and obtaining money under false pretenses – was arraigned Wednesday in Detroit’s 36th District Court, according to the prosecutor’s office.

He is scheduled to be back in court for a hearing Oct. 26.

According to the prosecutor’s office, Senter allegedly submitted paperwork and was reimbursed for going to court on days when he did not actually appear.

"Ex-Detroit police monitor disciplined over 'intimate contact' with Kilpatrick."

2011-10-24T11:54:00.001-04:00

An appeals court has disciplined Sheryl Robinson Wood, the lawyer overseeing Detroit police reforms who resigned in disgrace two years ago, for having "intimate contact" with Kwame Kilpatrick when he was Detroit's mayor.

Wood was publicly censured Oct. 13 by the District of Columbia Court of Appeals, the latest fallout in a costly reform effort that has lasted eight years, fallen short of targets and produced a tawdry scandal.

A public censure is a mid-level form of discipline, less severe than suspension or disbarment. It will be reported to other jurisdictions in which Wood is licensed.

A three-judge panel said Wood took responsibility and cooperated with an investigation launched after she resigned in 2009. She resigned after the FBI discovered texts that pointed to an improper relationship between her and the former Detroit mayor.

"(Wood) did not have any prior disciplinary actions, her conduct did not result in personal gain or negatively or financially impact the monitored cases, and no client was harmed by her conduct," the judges wrote.

City lawyers disagree.

The city has sued Wood in federal court to recover more than $10 million in fees she received. Last month, the City Council agreed to a $350,000 settlement with Wood's former law firms, Saul Ewing LLP and Venable LLP.

Her lawyer, Robert Spagnoletti, could not be reached immediately for comment Friday.

Wood agreed to be publicly censured after being accused of having personal communications and "intimate contact" in early 2004 with Kilpatrick, according to a Sept. 13 report by a D.C. Court of Appeals committee.

Earlier this year, the former mayor confirmed having a one-night stand with Wood.

During a March deposition, which was part of a civil lawsuit Kilpatrick filed against the city's former text message provider, SkyTel Inc., the ex-mayor was asked whether he had an affair with Wood.

"My definition of an affair is some kind of long-lasting relationship," Kilpatrick said. "That did not happen with Ms. Wood, no."

"What did happen with Ms. Wood?" SkyTel lawyer James Shelson asked.

"We had an intimate session one night in a hotel," Kilpatrick answered.

Wood told members of an attorney disciplinary board she greatly regretted her conduct, calling it a "moral and a personal transgression."

"At the time I considered it, and since then, to be a moral transgression on my part," Wood said, according to a hearing transcript obtained by The Detroit News. "And, you know, something that I obviously greatly regret. … I understand certainly now, and have come to understand, that it was also a violation of my duties as a lawyer."

Wood was in charge of overseeing Detroit Police Department reforms.

Detroit police agreed to two court orders and the appointment of a monitor in 2003 to settle a lawsuit brought by the U.S. Justice Department over alleged police brutality, improper arrests and dangerous jail conditions.

Plane rental assets seized

2011-10-21T09:34:00.001-04:00

ALLEGAN – The sky was the limit for Dodgen Aircraft and Skykid Aviation until the businesses were grounded earlier this month when a bank seized their assets and put them on the auction block.

On Tuesday Byron Township-based Miedema Auctioneering will sell off the assets – including six aircraft – via its online Orbitbid.com division.

Scott Miedema, president of the auction company, said the seizure of the aircraft at Allegan Municipal Airport's Padgham Field, 740 Grand St., was one of the more unusual repossessions he has been involved with.

The planes had their propellers chained to their landing gear to prevent them from flying away before the auction. One plane was still airborne when Miedema showed up with bank representatives and attorneys to seize the assets because of unpaid debts.

Supervisor faces new fed charges.

2011-10-21T09:29:00.001-04:00

Detroit— New federal charges have been levied against a Royal Oak Township official who was indicted in August on charges of bribery.

Township Supervisor William Morgan and a newly named defendant, Kendrick Covington, are charged with conspiracy in the superseding indictment filed Tuesday in U.S. District Court. An arraignment has not been set.

Morgan was arraigned in August in federal court in Detroit on three counts of bribery after federal agents arrested him at the Township Hall. If convicted, the charges could land him in prison for more than 10 years.

Federal prosecutors allege Morgan pocketed more than $10,000 in bribes from contractors. He's also charged with conspiracy to defraud the U.S. Department of Housing and Urban Development.

Morgan's attorney, Amer Hakim, could not be reached Wednesday. He previously denied his client accepted money. Covington does not yet have an attorney listed in court records.

The charges stem from Morgan's alleged role in awarding a contract and distributing federal funds intended for demolishing dilapidated buildings in blighted areas, according to the U.S. Attorney's Office.

The added counts allege Morgan and Covington conspired with each other and "various other persons" to make a false claim to HUD for asbestos abatement. The filing also alleges the pair falsified documents. The acts are alleged to have occurred from May 2009 through March 2010.

Authorities say that on July 23, 2009, Sureguard Inc./PBM Services LLC submitted a bid to Royal Oak Township for demolition and asbestos removal from dilapidated structures in the township, including the old Duke Theater on Eight Mile.

Morgan is accused of accepting a $10,000 wire transfer in August 2009 from the owner of the company.

Sheriff warn drivers of a "sheriff's narcotic checkpoint"

2011-10-21T09:26:00.002-04:00

GENESEE COUNTY, Michigan -- Sheriff Robert Pickell, faced with the prospect of losing his undercover drug team in a matter of months, apparently plans to go out with a bang -- and at least a war of words with the American Civil Liberties Union.

The drug team known as "The Posse" is taking to the streets with a new tactic -- signs that warn drivers of a "sheriff's narcotic checkpoint" ahead -- even though drug checkpoints have been found to be unconstitutional by the U.S. Supreme Court.

Robert Pickell

Undersheriff Chris Swanson would not discuss details of the checkpoint warning, which has been used for just the last few weeks, but said what is being done is within the law.

"This is an aggressive move because we're sick and tired of the heroin overdoses," Swanson said. "It's coming in on the street and it's killing our kids ...

"We're trying to intercept it before it gets on the street and kills our people."

County Commissioner Joe Graves, R-Argentine Twp., said he believes the Sheriff's Office is warning of checkpoints that don't really exist, and making traffic stops if officers notice traffic violations like U-turns when drivers see the warnings.

Graves, who refused to vote for this year's county budget because of funding cuts to the sheriff, said all's fair in trying to stop drug traffic.

"I look at it as another tool," Graves said. "I don't think people's rights are being violated. I don't want to become the next Mexico."

But a spokeswoman for the Michigan branch of the ACLU said Pickell's office has just taken a backdoor approach to violating people's rights.

"Although we don't have all the facts, we are deeply troubled," said ACLU spokeswoman Rana Elmir. "We welcome the public to seek us out and file formal complaints with us. We are looking into this issue."

Elmir said police need legitimate probable cause to search a vehicle for drugs and "turning away" from a reported drug checkpoint "doesn't give police the probable cause," she said.

House should reject bill to cut workers' comp.

2011-10-18T13:37:00.000-04:00

A bill introduced in the state House by Rep. Brad Jacobsen, R-Oxford, has the potential to gut the heart of Michigan’s Workers Compensation Act.

The measure, if approved, would cut workers compensation if a worker has “any residual wage-earning capacity whatsover.”

It does not matter if an injured worker can actually obtain a new job. The insurance company that pays workers compensation gets full credit for these “virtual wages,” said Richard Warsh, a Southfield attorney specializing in workers compensation cases.

“This means that almost all low-wage earners will virtually be eliminated from receiving benefits,” he said. “This will do irreparable harm to those least able to defend themselves.”

Current law says workers compensation is a lifetime benefit and Michigan is a “wage-loss” state, meaning a worker injured on the job will be compensated for lost wages as long as he or she is unable to work.

Now if injured at work, you must be treated with a doctor of the employer’s choice for the first 10 days. The new bill, however, extends that to 90 days.

If this bill is approved, it will leave people who “become disabled with no options, no money, and nowhere to turn,” Warsh said.

Backers of the proposal besides Jacobsen include the Michigan Manufacturers Association and the Michigan Chamber of Commerce. They say high workers compensation costs keep businesses from coming or staying here.

One construction worker, who asked not to be named, fell through a hole covered by a tarp while working at a local hospital construction site, injuring his knee. Since then, he has had three knee replacement surgeries.

He was receiving $500 a week and tried to be a telemarketer, as an insurance adjuster required, but failed in his attempt. His benefits were promptly terminated.

His family now receives only $390 a month in food stamps and no other compensation.

Jacobsen’s bill turns a cold shoulder to the injured workers in our state and lawmakers must reject this inhumane proposal.