Negligence Law Section Quarterly Spring 2010
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negligenceNEGLIGENCE lawLAW sectionSECTION quarterly QUARTERLY WINTERspring 2010 State Bar of Michigan Negligence LawLaw SectionSection QUARTERLYQUARTERLY The OfficialOffi cial NewsletterNewsletter ofof thethe StateState BarBar ofof MichiganMichigan NegligenceNegligence LawLaw SectionSection reRECENTCenT evenEVENTSTS spring Meeting, April 29- May 2 Is“You There Need a Difference to Play the Between Game Between Ignorance las Vegas, Aria Hotel andthe WhiteApathy? Lines” “TheA fair,difference objective, between hold no grudges ignorance • andAffidavits of apathy.judge frequently I don’t utteredknow andthese I simpledon’t care.”Merit must words motion day after motion day. I reasonably could tell by—Samuel the tilt of hisLanghorne head, here itClemens inform op- Jose’ Brown, Representative John Walsh, David comes: “Mr. Brown you must play the p o s i n g Christensen—November 12, 2009 Council Meeting game between the white lines.” Judge counsel of ThomasAging C. lawyers Yeotis wouldmay follow repeat this this time man-- state.the Drug allega- im- walt griffin, Ven Johnson & steve galbraith linetra to of both ignorance plaintiff to and apathy. defense My counsel career munitytions is of good mal- trackat motions included for summary another Twaindisposition. gem: The “It for business.practice, notIn isquote better has to stuck keep with your me mouth but theshut virtue and the medicalnece s sarily field José T. Brown appearis often stupidlost, especially than to withopen the it anddog reeat- therevia is utterpending pre- movedog mentality all doubt.” of Shamethe economy on me. and the statecision legislation and definiteness, to tax doctors. but ratherNational the decline in the legal “profession” but the substance of the malpractice. Negligence law in Michigan has Health Insurance Reform diminishes upswing in personalities and voices due • A physician would be able to sign beento the substantiallylegal “business.” reduced Motions to area non- fre- Medicaid reimbursement. Michigan’s entity by several forces: FDA approval reimbursementand file their for own physician Affidavit specialties of Meri- Vernon Johnson, Richard Primus, Mark Bernstein quently filed and argued, not because of torious Defense in support of their December 17, 2009 Council Meeting resulting in immunity for drug compa- is not competitive. The Monroe pedia- their merit, but for a multitude of other defense. sean carter & Barry goodman nies,reasons. significant This needs burdens to change. to file product trician makes far less than the Toledo liabilityThere cases, have tort been reform attempts in medicalby the counterpart.• Defense counselFew like would to admitbe given this, a malpractice,section board legalto “play decisions the game regarding between but medicinereasonable is timeframealso a “business.” and opportu- These nity to provide an Affidavit of Meri- openthe white and lines.”obvious, In autothe summer accident and injury fall are the reasons for the flight of doc- of 2009, amendments to the Court Rules torious Defense by an independent thresholds, and the “…tion” factors: tors witness.from Michigan. Yet the politicians caseand evaluastatutestion were, facilita enactedtion , witharbitra Boardtion, continue to flog the lawyers for driving input to correct the Affidavit of Merit alternative dispute resolution. Two- up the cost of business through exces- difficulties in medical malpractice cas- There have been ongoing motions thirds of civil cases in the state of Mich- sive litigation. The real problem is the es. Most recently during the Christmas filed by both sides of the V up to the 11th iganseason, are the in Section domestic has relations.filed an Amicus These healthhour attacking care/insurance the sufficiency reform ofmodel the no- is Gerry Padilla & Jennifer Grieco observationsBrief in the mandateMcCormick our case section requesting to act nottices sustainable.of intent, the Lawyers lack of precisionare the “easyof an December 17, 2009 Council Meeting todd & Terri stern tocorrection address theof thepillage Kreiner of negligence decision. Orallaw. wayaffidavit out,” of andmerit, the the public physician buys signing into this an arguments During were heldthe decade Wednesday, of the Janu-‘90s, attack.affidavit in support of their own defense… Iary mostly 13, 2010 listened on McCormick and did .not act. I was gamesMy outsidementor, the Earl white Cline, lines. would Many often of ignorant, too afraid to bite the hand tellthese me, motions “Be careful were craftedwhat you at askthe for;11th thatAffi davit feeds of me. Merit Tort reform morphed youhour, just after might much get time, it.” cost,As I lookand expenseback at throughProposed several changes revisions, which and our many Sec- thishad pastbeen decade, exhausted. have doctorsHouse beenBill kept2169 lawyerstion supported failed topublically act or speak and byout meeting on the insponsored the state? by HaveRepresentative drug manufacturers Mark Mead- with Representative Meadows testimony ows addressed these improvements. It is specifics of the reform. The public and been kept in this state? Has tort reform were as follows: hoped these changes will be forthcoming lawyers• Objections were told to tortfaulty reform notices was of neces intent- beento play good the gamefor lawyers between on the both white sides lines. of sary to keep medical malpractice premi- the V? Rhetorical, rhetorical, rhetorical. Steve Galbraith & Todd Tennis must be made on a timely basis. DeniseDecember Janes, 17, 2009 Bethany Council G riffinMeeting and Walt Griffin ums down, to keep the doctors in the ContinuedContinued on on page page 2 2 www.MICHBAR.ORGWWW.MICHBAR.ORG PAGE 1 negligence law section quarterly spring 2010 State Bar of Michigan Is There a Difference . Continued from page 1 Negligence I was criticized by several of my col- Court requesting permanent impair- leagues for my OP-Ed page in the Lan- ment become a jury question in most Council sing State Journal for referencing the instances. The amicus brief addresses public perception of lawyers as “bottom the right to jury trial in light of Kreiner. feeders.” (A copy of this article is pub- Some cases will still require a summary ChAIrperSon lished in full in this publication). I wel- disposition decision. José T. Brown come criticism; it promotes discourse. 503 s. saginaw, ste 1000 February/March 2010 Flint, Mi 48502 The trial lawyers, both sides of the V, (810) 232-3141 are frequently criticized for frivolous Changes in MCR 2.112 & 2.118 [email protected] litigation. How many times have you regard “fairness” with new time frames heard “the lawyers have to eat, too” or to file objections to NOI’s and the Af- vICe ChAIr “he who sues my client is my friend”? fidavit of Merit. David e. christensen, southfield Frivolous litigation happens, but not on the magnitude that any one lawyer is april 2010 SeCretary putting food on the table by collecting Treasurer Tom Waun testifies be- paul J. Manion, Detroit fees from frivolous lawsuits. I truly be- fore legislature on the “open and obvi- lieve what is good for both sides of the ous” doctrine HB5744. The substance TreASurer of his testimony was to allow access to thomas W. Waun, grand Blanc V is good for the public. I cherish an inanimate object: my the jury on factual questions. Ongoing CounCIL desk. I speak with it when troubled. It invitations are regularly extended to Jody l. aaron, Detroit was Earl Cline’s desk. I have a life estate testify before the legislature on select Mark Bernstein, Farmington Hills with permission of Earl’s three daugh- negligence issues. Without the efforts ronald F. Denardis, Mt. clemens ters. Earl’s desk tells me to be civil; get- of a lobbyist, it’s nearly impossible to steven B. galbraith, Detroit ting dirty doesn’t mean wallowing with keep track of legislative sausage in Lan- Jennifer M. grieco, southfield the pigs. Earl’s desk tells me to have fun sing. Our efforts should be extended Michael r. Janes, Mt. clemens to include providing Law School for Vernon r. Johnson, southfield outside of the practice of law, to pur- sue a hobby with passion; it will make Legislators. After all, over 50 percent David Mittleman, lansing of the House and Senate will be “new” gerald V. padilla, southfield me a better lawyer. Earl’s desk also tells after November 2010. The State Bar of Michael J. sullivan, southfield me, “Don’t get old, don’t get cynical, Michigan will invite our section to be and don’t get apathetic.” “To get some- involved in teaching legislators. ex offICIo thing done, you must act, not react. If Jules B. olsman, Berkley you don’t get involved you’re part of the May 2010 problem. Rational discourse results in CommISSIoner LIAISon • Negligence Law Section Annual solutions.” Bernhardt D. christenson iii Meeting in Las Vegas, April 29 to This requires an analysis of offer- May 2 LoBByIST ing solutions to very difficult legal con- todd n. Tennis, lansing cerns. It is my belief the “Chairperson’s • Second amicus brief in Colianni Agenda” offers an opportunity for dis- and Trentadue at the request of the eDITorS Michigan Supreme Court. The is- Mark Bernstein, Farmington Hills course and proposes solutions. sue concerns the common law Jody l. Aaron, Detroit I will highlight my “Chairperson’s Agenda” from January 2010 through statute of limitations due to “dis- exeCuTIve DIreCTor October 2010. The Negligence Law covery” of the murderer in a civil Madelyne lawry, grand ledge Section Board has worked toward solu- action after forensic DNA analysis, [email protected] tions based on rational discourse. several years later. The views expressed in this newsletter do not • May 26 Medicare Lien II Educa- necessarily reflect the views of the Council or the Holidays 09 and January 2010 tion Seminar. Although the re- Section. This publication does not represent an endorsement of any comments, views, or opinions McCormick amicus brief was drafted porting requirements were recently expressed herein. Any opinions published herein are and filed with the Michigan Supreme extended, this issue is a significant PAGE 2 www.MICHBAR.ORG Author biographical text formatted here.