Many of the top legal news stories of 2016 may have repercussions for years to come

By Lee Dryden
BridgeTower Media Newswires
DETROIT, MI — It wasn’t an easy process to select the top stories of the year, but we gave it our best shot.

In no particular order, these events stood out as most memorable among Michigan’s legal news in 2016 — many of which may have repercussions for years to come.

Lawyer’s blog post prompts complaint from ADB member

A lawyer’s blog post aimed at shedding light on “enormous damage” caused by doctors hired by insurance companies resulted in a complaint filed against him by a psychiatrist who sat on the Attorney Discipline Board.

Dr. Rosalind E. Griffin filed a request for investigation with the Attorney Grievance Commission against Steven M. Gursten of Michigan Auto Law for a November 2014 blog post in which he highlighted discrepancies between her recorded examination with his client and her ensuing report and testimony.

His client, who was injured in an automobile accident, was awarded $3.5 million by a Jackson County jury in 2010. She asked that the matter be investigated and Gursten be required to remove the “outrageous posting” and the link to Google results for her name.

Gursten said he wants the public to be aware of the problem of Independent Medical Examination (IME) doctors — hired by insurance companies — who examine automobile accident victims or those making workers’ compensation claims and discount their injuries, resulting in less compensation.

The complaint was dismissed by the AGC, citing Gursten’s constitutional right to free speech. Griffin’s second three-year term on the board ended Sept. 30.

High court reverses COA in med-mal case involving unsupported expert opinion

In the case of a woman who was injured when her gallbladder was removed, the Michigan Supreme Court ruled an expert’s opinion in the medical malpractice case has to be supported by other experts to be credible.

It overruled the Michigan Court of Appeals, which took the opposite view.

In Elher v. Misra, the high court reversed the appeals court decision and reinstated the 2013 order of the Oakland County Circuit Court that granted summary disposition to the defendants and excluded the testimony of the plaintiff’s expert, Dr. Paul Priebe.

Priebe testified that it is “virtually always malpractice to injure the common bile duct during a laparoscopic cholecystectomy, absent extensive inflammation or scarring.”

But the Supreme Court stated in its decision that “Priebe admitted that his opinion was based on his own personal beliefs, there was no evidence that his opinion was generally accepted within the relevant expert community …”
Justice Richard H. Bernstein dissented, stating, “I believe the Court of Appeals reached the right result for the right reasons.”

Justice Joan L. Larsen did not take part in the decision.

New rule doesn’t ‘disfavor’ unpublished opinions, but requires explanation

Practitioners viewed a court rule change on unpublished Michigan Court of Appeals opinions as a partial victory as it was toned down from the original proposal that sent shockwaves through the appellate law community.
Most significantly, they applauded the removal of language stating that relying on such cases in briefs would be “disfavored.”

The rule issued March 23 in Amendments of MCR 2.119, 7.212 and 7.215 states, “Unpublished opinions should not be cited for propositions of law for which there is published authority. If a party cites an unpublished opinion, the party shall explain the reason for citing it and how it is relevant to the issues presented.”

Attorneys complained at a September 2015 public hearing that disfavoring unpublished opinions would have a chilling effect on advocacy as published opinions aren’t available for every case.

The rule change took effect May 1.

Contaminated steroids class-action suit settles for $10.5M

Nearly four years after more than 300 patients in Michigan were infected with fungal meningitis — 19 of whom died — a $10.5 million class-action settlement was reached with a Michigan defendant.

This is in addition to a $210 million national tort trust for all national class members, including Michigan’s, approved by a bankruptcy court in Boston.

“It was a very complicated process,” Southfield attorney Marc E. Lipton said of getting a Livingston County Circuit Court judge to sign off on the Michigan settlement.

The U.S. Food and Drug Administration and Centers for Disease Control traced the 2012 outbreak to contaminated steroid compounds that came from Massachusetts-based New England Compounding Center.

The outbreak affected more than 750 people in 20 states, 64 of whom died.

Michigan was deemed Ground Zero for the outbreak, with Brighton-based Michigan Pain Specialists bearing the most cases per capita.

The three-attorney steering committee for Michigan included Lipton of Lipton Law, Robert B. Sickels of Sommers Schwartz PC and Marc Newman of The Miller Law Firm PC.

MSC: Pandora user is not a ‘customer’

In an unusual move, the Michigan Supreme Court weighed in on a federal matter.

The high court’s answer to the certified question in Deacon v. Pandora Media, Inc. is that a Michigan resident doesn’t have grounds to sue after his listening history from the Pandora music streaming service was made public.
Citing a violation of his privacy, Peter Deacon filed a federal class-action complaint in 2011 in California, the home of Pandora’s headquarters.

The 9th U.S. Circuit Court of Appeals’ certified question to the Michigan Supreme Court was, “Has Deacon stated a claim against Pandora for violation of the [Preservation of Personal Privacy Act, also known as the Video Rental Privacy Act] by adequately alleging that Pandora is [in] the business of ‘renting’ or ‘lending’ sound recordings, and that he is a ‘customer’ of Pandora because he ‘rents’ or ‘borrows’ sound recordings from Pandora?”

The high court — which heard oral arguments on the matter April 27 before a large group of students — answered in the negative in a unanimous July 6 opinion, concluding that Deacon is not a “customer.”

$21M jury verdict overturned

A Michigan Court of Appeals panel voided a $21 million jury verdict for the family of a woman who died after she mistakenly received brain surgery instead of a jaw procedure.

The jury’s May 2015 decision in Nayyar v. Oakwood Healthcare Inc. was more than three years after the surgery that occurred after hospital staff put the woman’s name on the wrong X-ray form. Bimla Nayyar, 81, of Belleville died 60 days after the surgery from ensuing complications.

But the award was voided by a July 15 appeals court order that stated it couldn’t be based on ordinary negligence.

Geoffrey N. Fieger of Fieger Law, who represents the plaintiff, called it “a reckless order that was unprecedented in the history of the Michigan Court of Appeals” with no right to appeal. He said the court took an unheard-of step of vacating the award via an unpublished order.

The verdict was the largest in 2015 in Michigan Lawyers Weekly’s annual survey of the state’s “Million-Dollar Verdicts & Settlements.”

COA: Judges, not juries, decide on juvenile lifers

The Michigan Court of Appeals ruled that judges — not juries — should determine if juvenile offenders should be sent to prison for life without parole.

In a rare move, the court convened a conflict panel to tackle the issue that was brought into the spotlight by a U.S. Supreme Court ruling earlier this year.

The appeals court’s decision came in a July 21 published opinion in People v. Kenya Ali Hyatt.

A published Court of Appeals opinion in January in People v. Perkins stated a jury must determine if a minor convicted of murder receives a life-without-parole sentence.

But the court ruled in Perkins based on another appeals court ruling it believes was wrongly decided, People v. Skinner, which was published in August 2015. A conflict with Skinner was declared in the Perkins ruling.

In the Skinner case, the court majority determined the Sixth Amendment mandates a juvenile facing life without parole have that decision made by a jury.

This was the first Court of Appeals conflict panel convened since 2013.

COA calls for conflict panel regarding ‘innocent third-party’ rule

Attorneys doing no-fault work have been closely watching the litigation regarding the so-called “innocent third-party” rule, which appeared to have been effectively abolished by a Court of Appeals panel earlier this summer.

But another appeals court panel has declared a conflict and called for the convening of a special conflict panel to address the issue.

In an Aug. 9 published opinion, Southeast Michigan Surgical Hospital LLC v. Allstate Insurance Co, the court reversed a Wayne County Circuit Court ruling that, even though a vehicle’s owner and primary driver committed fraud that induced Allstate to issue a no-fault policy covering the vehicle involved in an accident, the innocent third party doctrine precluded Allstate from rescinding the policy to deny coverage of a third-party’s injuries.

The appeals court stated it was bound to reverse the decision based on the Court of Appeals’ June 14 published opinion in Bazzi, et al. v. Sentinel Ins. Co., et al. — even though it agreed with the dissenting opinion in Bazzi.

In Bazzi, the Court of Appeals reversed the Wayne County court, stating that if an insurer is entitled to rescind a no-fault insurance policy based on fraud, it is not obligated to pay PIP benefits to innocent third parties.

O’Connell denied in effort to be on ballot as incumbent

Michigan Court of Appeals Judge Peter D. O’Connell sought to be on the ballot this year —even though he wasn’t up for re-election.

The 68-year-old jurist is barred from running in 2018 by the rule that judges cannot seek re-election once they turn 70. His current term expires Jan. 1, 2019.

His lawsuit asserted that he was entitled to be on this year’s ballot as an incumbent for a six-year term expiring Jan. 1, 2023.

An appeals court panel issued an Aug. 25 published opinion in O’Connell v. Director of Elections affirming the Michigan Court of Claims opinion that the judge could not be on the ballot this year as an incumbent in ruling that O’Connell is not “the incumbent” for “the office” held by Judge Michael F. Gadola.

O’Connell’s counsel argued that the position is “not linked to the beginning or end of a term of office.”

Ultimately, the Michigan Supreme Court denied leave to appeal. O’Connell wasn’t on the ballot, but he brought the issue into the spotlight.

“My goal was to bring attention to age discrimination, I think we have accomplished this goal,” he said in a statement after the high court’s decision. “Age discrimination is ethically, morally and legally wrong.”

$36.6M awarded in Genesee jail beating

A federal jury on Nov. 3 determined that a DWI suspect’s jail cell beating at the hands of five deputies — resulting in extensive, permanent eye, shoulder and facial injuries — was unnecessary, excessive force.

The jurors responded with a $36,630,000 verdict — more than half of which was in punitive damages.

That figure is 2016’s largest Michigan-based verdict so far as reported to Michigan Lawyers Weekly.

Kevin S. Ernst, co-counsel for plaintiff William Jennings, said that while his retained physician experts did a great job in breaking down plaintiff’s long-lasting physical and mental damages — including PTSD — the video footage of the beating at the Genesee County Jail really sold the case.

Ernst, of Ernst & Marko Law PLC, said plaintiff’s strategy at trial was to have the video played for the jury first, then to call the defendant deputies to the stand to explain what had happened.

As the deputies claimed Jennings was resisting, “we’d then say to each, ‘Show me where [on the video]. Tell me where to stop it where you say he’s resisting.’

“They pointed to him in the video. But the guy is motionless.”