Michigan Personal Injury Blog - justice

Michigan Supreme Court’s New Policy Enhances Credibility, Avoids Conflicts

David Mittleman — Tue, 17 Nov 2009 15:15:04 GMT

Earlier this month, Michigan’s Supreme Court adopted a fair and reasonable new policy to govern the disqualification of justices in the event of a potential conflict of interest. By a 4-3 vote, Michigan’s Gang of Justice approved rules that will, in some cases, take the decision out of the potentially conflicted justice’s hands.

Judicial disqualification, also known as recusal, is an incredibly important component of the impartiality and integrity of the legal system. Under the old, unwritten tradition, each individual justice essentially had the final say on whether or not to step aside on a given case due to a conflict of interest. While most judges and justices do the right thing and step aside when they face a conflict of interest, the few who do not can seriously undermine the public’s trust.

A stunning and well–known example can be found in West Virginia, where a state Supreme Court justice was elected to the state’s highest court with the help of $3 million donated by the chairman of Massey Energy Company. That justice later decided in favor of Massey in two key decisions, despite calls for his disqualification.

The new rules adopted by the Michigan Supreme Court will help avoid any actual or perceived injustice. Now, a party whose request for disqualification is refused by an individual justice can appeal to the entire seven-member Court for a ruling.

An excellent editorial by the Lansing State Journal underscores the importance of the change in policy, especially in this era of big-money judicial campaigns. The four justices who voted in favor of the measure - Justices Hathaway, Cavanagh, Weaver, and Chief Justice Kelly - clearly understand the importance of fairness and impartiality. The minority, on the other hand, would prefer the old way of doing things.

Justice Robert Young, who in the past almost always voted with the “Sleeping Judge” Cliff Taylor, was among the dissenters. Last year the people of Michigan voted Taylor off the bench. In 2010, voters will get to have their say about Justice Young.

Originally posted at InjuryBoard by David Mittleman

DOJ Investigation Reveals Excessive Force Was Used at NY Juvenile Prisons

David Mittleman — Fri, 04 Sep 2009 10:00:00 GMT

A recent investigation by the United States Department of Justice revealed that prison staff at New York juvenile prisons used excessive physical force to discipline children. In fact, the investigation found that the physical violence resulted in shattered teeth, concussions and other serious injuries in the youth prisoners.

The U.S. DOJ issued its report 18 months into the investigation. Specifically, the DOJ investigated four juvenile residential centers and found that physical force was the first response to any act of insubordination by residents—all of whom are under the age of 16.
The findings propelled the DOJ to issue a statement that the federal government will take over the juvenile prison system if the problems with excessive physical force are not remedied in a timely manner.

The commissioner of New York’s Children and Family Services office, which oversees the juvenile prison system, issued a statement after the report’s release. She stated that the administration had inherited a system “rife with substantial systemic problems”, but did admit that the department’s efforts to address problems with excessive physical force had fallen short.

The investigation also revealed that officials at the centers—the Lansing Residential Center, the Louis Gossett Jr. Residential Center and the Tryon Residential Center—had routinely failed to follow state rules requiring reviews whenever physical force is used. Furthermore, even when reviews were performed and found that excessive force had been used, staff members hardly ever faced punishment. In fact, the staff members responsible for the physical force often performed the reviews for themselves.

Several cases indicate the amount of physical force employed at the residential centers. For example, in November 2006, an emotionally disturbed teenager, Darryl Thompson, who was only 15 at the time, died after two employees at the Tryon center pinned him down to the ground. His death was ruled a homicide, but the grand jury did not indict the workers. His mother is now suing the state of New York. Moreover, in another incident, a boy was restrained with his arms behind his back after glaring at a staff member. His arms were pinned so violently, that his collarbone was broken. These are just two of several cases that the DOJ discovered in their investigation.

The DOJ has recommended a plan of action for the state’s problematic juvenile centers. New York has 49 days to respond with a plan of action to comply with the report’s recommendations. If the state fails to respond, the DOJ can initiate a lawsuit to force a federal takeover of the state’s juvenile prison system.

Originally posted at InjuryBoard by David Mittleman

Gang of Justice at the Michigan Supreme Court works for common good, not corporate greed

David Mittleman — Sat, 22 Aug 2009 10:18:00 GMT

The usual suspects are lining up to take shots at the new Gang of Justice on the Michigan Supreme Court. Don't buy the hype. The latest "outrage" seems to be the prospect that Michigan insurance premiums might go up by $20 per year and the blame is wrongfully being directed at Gang of Justice, consisting of Justices Weaver, Kelly, Cavanagh, and Hathaway.

This all stems from the Supreme Court decision in United States Fidelity Guarantee & Insurance Co v Michigan Catastrophic Claims Ass'n, where the Supreme Court ordered the Michigan Catastrophic Claims Association to fully reimburse insurance companies for all medical payments above $460,000. Under Michigan law, your insurance carrier is required to pay a lifetime benefit of all medical services that are reasonable and necessary for your recovery, care, or rehabilitation - but ask that to the thousands of people who often find their no-fault benefits terminated after a five minute "appointment" with a doctor who will gladly write a report to your insurer that you're good-to-go. If, however, you are one of the few people who suffer a truly catastrophic injury such that your medical bills go beyond $460,000, insurance companies in Michigan get reimbursed by the MCCA.

Many of these catastrophic claims usually involve settlements on services like attendant care, where a family member or other person actually takes on the "job" of caring for someone who is now paralyzed, severely injured, or otherwise incapable of doing the basics of life. These attendant care services are part of the "medical services" that a no-fault insurer must pay so long as they are related to the accident and necessary for your care. Because of that, up to the first $460,000 or benefits paid, they are without a doubt put in a position to negotiate a fair and reasonable wage (because until they cross that $460,000 threshold they are solely responsible). The MCCA wanted to be able to reduce the amount they paid back to insurance companies by saying that the insurance companies didn't try hard enough to keep costs low. The MCCA gets its money by charging all of the insurance companies operating in Michigan a fee - so in essence, the insurance companies themselves all share in paying the catastrophic claims of injured Michigan motorists and passengers. Naturally, insurance companies pass down that bill to us, their policyholders. Shockingly, this increase was decided on even before the decision was released by the Michigan Supreme Court! Makes you wonder just how hard the MCCA is working with no-fault insurers to negotiate reasonable benefits.

The next time you pick up your local paper and read the propoganda, think it through. Just what would have led to higher insurance rates? Imagine a scenario where insurance companies didn't get fully reimbursed by the MCCA, so that the MCCA didn't pass down a $20 yearly increase per policy? Then we'd have the insurance companies themselves saying "we're out of millions! Time to raise rates because we're not getting fairly reimbursed?" The truth is that conservatives need to find fault with any and all decisions made by the Gang of Justice, because legal change is coming that will undo the disasterous legacy of Gov. Engler's Gang of Four.

So while folks like Collen Pero will want to make this about Justice Hathaway and her supporters (nevermind the fact that he was a campaign manager for ex-Justice Cliff Taylor who gladly accepted contributions totalling nearly $100,000 from DaimlerChrysler from 1998 to 2000 before overturning a major jury verdict against DaimlerChrysler of $21 Million in 2002), have a conversation with your fellow Michigan residents, talk with them about their fears, and help them realize that what the Supreme Court is finally doing is putting their interests ahead of corporate greed. When Diane Hathaway beat Cliff Taylor despite Taylor's supporters giving him a bank account of $1.4 Million in campaign contributions, Michigan residents said loud and clear that they were fed up with the Supreme Court's staunch support of corporate interests over the public good. That's what this noise is all about - hot air from corporate goons staring at the prospect of knowing what life is like for real Americans.

Originally posted at InjuryBoard by David Mittleman

Wake Up and Smell the Hot Coffee

David Mittleman — Fri, 10 Jul 2009 08:56:27 GMT

How often have you heard someone joke about the woman who spilled coffee on herself at McDonald’s, sued the fast food giant, and won? She won a jury verdict of $2.9 million dollars (which was reduced and the case was ultimately settled), but most people don’t equate that large amount of money with the amount of pain she suffered or the level of recklessness McDonald's tolerated. Instead, folks usually scoff, citing the case as the poster child for frivolous lawsuits. How many of us actually know the full story of what happened to Stella Liebeck?

Stella was a 79-year-old grandmother at the time of the incident, and she was riding in her grandson’s car. Her grandson had pulled over to the side of the road to allow Stella to add cream and sugar to her coffee. The car was not moving, as many tort-reform hawks would like the public to believe. When Stella pulled the lid off of the coffee cup, the exceedingly hot coffee spilled onto her lap and onto the seat beneath her. She was wearing cotton jogging pants. McDonald’s admitted that the coffee was served at a scalding 190 degrees—hot enough to cause third degree burns within 2-7 seconds (according to expert testimony). She did, in fact, suffer serious burns to her thighs, buttocks, and genitals. She was taken to the hospital, where doctors determined that she had suffered third-degree burns. She remained in the hospital for eight days while she underwent painful skin grafting. Thereafter, she had two years of treatment.

Although McDonald’s admitted that they knew the cup of coffee was exceedingly hot, they tried to cover up for their reckless conduct by claiming that they purposefully served the coffee at a high temperature because company research showed that customers want to drive a distance before drinking the coffee. However, their own research also indicated that some customers intended to drink the coffee immediately after purchase. So what was it? Well, the truth is that McDonald's had known for over a decade that their coffee was burning people (over 700 claims, some including third degree burns) and yet did nothing about it.

The truth of the matter is, the civil justice system has been under attack for 25 years. Big businesses, such as the tobacco, pharmaceutical, and insurance companies, just to name a few, launched a public relations campaign beginning in the 80s to undermine the court system—the one place an average citizen can go and see some kind of justice. This mascarade goes by the name of tort reform. By convincing the American public that we have out-of-control juries, too many lawsuits, and a desperate need for tort reform, other big businesses can avoid responsibility for their poor behavior when it comes to the safety of the average consumer. But where will the little guy go when he gets “burned”—figuratively or literally, like Liebeck?

Originally posted at InjuryBoard by David Mittleman

Department of Justice Cracks Down on Insurance Fraud

David Mittleman — Fri, 26 Jun 2009 17:34:25 GMT

The U.S. Department of Justice has announced that the former managing pharmacist of a New Jersey pharmacy has pleaded guilty to submitting fraudulent claims to health insurers. Ruben Aguilar admitted to conspiring with others to submit claims for prescriptions that the pharmacy never dispensed over a five-year period spanning from 2002 to 2007. Aguilar could serve up to five years in prison and be forced to pay a hefty fine.

Among the many insurers that fell victim to the fraud was the federal Medicaid program, which insures low-income individuals in conjunction with certain state Medicaid programs. Medicaid and Medicare, which insures those over 65 years old and certain other qualifying individuals, are frequent targets of attempted fraud. The Department of Justice has partnered with the U.S. Department of Health and Human Services to prevent waste and abuse in the system. The goal is to keep the cost of these federal programs down, thus saving money and improving the quality of services provided.

Aguilar’s plea came on the same day as a major health care fraud sting operation resulted in the arrests of 53 individuals, including doctors, executives, and beneficiaries, in the Detroit area. In addition, eight Miami-area residents were arrested today on similar charges.

These recent arrests are a clear indication of the administration’s aggressive policy of attacking Medicaid and Medicare fraud. If you become aware of fraudulent activity, you can report it by e-mailing HHSTips@oig.hhs.gov or by calling 1-800-HHS-TIPS.

Originally posted at InjuryBoard by David Mittleman

Pre-Dispute Binding Arbitration Clauses Perpetuate Injustice

David Mittleman — Mon, 15 Jun 2009 12:32:41 GMT

When someone is wronged by another, he or she expects to find recourse in our justice system. When a corporation takes advantage of a consumer, that person often takes solace in the fact that she will have her day in court. More and more, however, these hopes and expectations are never realized. Victims are shocked to learn that they have contractually signed away their right to go to court.

Many (if not most) consumer contracts, from cell phone plans to credit card agreements, now contain what are known as Pre-Dispute Mandatory Binding Arbitration clauses. These clauses require that any dispute that should arise out of the contract must be settled by binding arbitration rather than by filing suit in a court of law. Nearly always, the result is worse for the consumer. Arbitration clauses are usually hidden in dense legal documents, making it hard for the average person to even know if the contract contains such a provision. Even if the consumer is aware of the mandatory arbitration requirement, he or she cannot negotiate it out of these all-or-nothing contracts of adhesion.

In many cases, these pre-dispute mandatory arbitration clauses result in manifest injustice. National Public Radio (NPR) recently reported on one of the most appalling instances of the iniquity of mandatory binding arbitration clauses. A 20-year-old female Halliburton employee working in Iraq was brutally assaulted by her coworkers, resulting in devastating and permanent physical and emotional injuries. When the Justice Department refused to intervene, this young woman sought accountability by suing in civil court. Unbelievably, the company insists that the case must go to binding arbitration rather than a judge and jury.

Pre-dispute mandatory binding arbitration agreements represent a fundamentally unfair method for holding corporations responsible for their wrongdoings. Consumers and employees are kept in the dark as to their rights, and they are not free to bargain for a better deal. Instead, they must "take it or leave it" and run the risk of facing a potentially biased tribunal who will decide the outcome of their case.

Originally posted at InjuryBoard by David Mittleman

Supreme Court tells elected judges not to rule on major backers

David Mittleman — Mon, 08 Jun 2009 15:39:39 GMT

When Michigan residents vote next year for Supreme Court Justice, it is doubtful that any of them will have just given incumbent Robert Young $3 Million in campaign contributions. Robert Young, Maura Corrigan, and ex-Chief Justice Cliff Taylor, all argued in a brief to the United States Supreme Court that there was nothing wrong with the president of a company giving $3 Million in campaign contributions to a man running for a seat on the West Virginia Supreme Court of Appeals and then after that man won by less than 50,000 votes, deciding a major case involving the donor’s company. Thank goodness the United States Supreme Court isn’t made up with Engler appointees.

Robert Young was dead wrong again, and his position shows just how out of touch with America he really is. Even in the face of unbelievable facts (the $3 Million was more than all the other contributions put together AND it was more than the West Virginia Judge’s committee even spent on the campaign), he still had the nerve to argue that preventing that Justice from participating in the reversal of a $50 Million jury verdict would allow "the entire process of judicial elections [to] be imperiled." Makes you wonder who is funding his re-election campaign and what cases they’d like to see Young try and reverse.

Now, as Massey Coal Company tries to save face and claim that it believes it would still win reversal of the jury verdict with "any new examination of the same facts," one thing is true: the United States Supreme Court has said NO to trying to buy judges and outcomes. Next year it’ll be time for Michigan residents to say NO to Robert Young and his corporation-first, consumers-last agenda.

Originally posted at InjuryBoard by David Mittleman

Obama's Pick for the High Court is justice for average citizens, not corporations

David Mittleman — Thu, 28 May 2009 15:12:02 GMT

Less than 48 hours after his announcement of Judge Sonia Sotomayor to fill the vacancy of retiring Justice David Souter, it appears that her opponents have little to truly bicker about. Absent some unforeseen event, she will become the first Latina Supreme Court Justice in our nation's history. President Obama's selection will prove to be more than just a barrier breaking moment in history, it will demonstrate a victory for justice in America.

What's more important, however, is that Judge Sotomayor has demonstrated time and again that she knows American values of hard work, fair play, free speech, and yes, even, love of baseball. Consider these stances taken by Sotomayor.

1. Judge Sotomayor would bring more federal judicial experience to the bench than any Supreme Court justice in 100 years. Over her three-decade career, she has served in a wide variety of legal roles, including as a prosecutor, litigator, and judge.

2. Judge Sotomayor is a trailblazer. She was the first Latina to serve on the Court of Appeals for the Second Circuit and was the youngest member of the court when appointed to the District Court for the Southern District of New York. If confirmed, she will be the first Hispanic to sit on the U.S. Supreme Court.

3. While on the bench, Judge Sotomayor has consistently protected the rights of working Americans, ruling in favor of health benefits and fair wages for workers in several cases.

4. Judge Sotomayor has shown strong support for First Amendment rights, including in cases of religious expression and the rights to assembly and free speech.

5. Judge Sotomayor has a strong record on civil rights cases, ruling for plaintiffs who had been discriminated against based on disability, sex and race.

6. Judge Sotomayor embodies the American dream. Born to Puerto Rican parents, she grew up in a South Bronx housing project and was raised from age nine by a single mother, excelling in school and working her way to graduate summa cum laude from Princeton University and to become an editor of the Law Journal at Yale Law School.

7. In 1995, Judge Sotomayor "saved baseball" when she stopped the owners from illegally changing their bargaining agreement with the players, thereby ending the longest professional sports walk-out in history.

8. Judge Sotomayor ruled in favor of the environment in a case of protecting aquatic life in the vicinity of power plants in 2007, a decision that was overturned by the Roberts Supreme Court.

9. In 1992, Judge Sotomayor was confirmed by the Senate without opposition after being appointed to the bench by George H.W. Bush.

10. Judge Sotomayor is a widely respected legal figure, having been described as "...an outstanding colleague with a keen legal mind," "highly qualified for any position in which wisdom, intelligence, collegiality and good character would be assets," and "a role model of aspiration, discipline, commitment, intellectual prowess and integrity."

Sources for each of the 10 things:

1. White House Statement, May 26, 2009.

http://www.moveon.org/r?r=51451&id=16226-2269734-SqSXK.x&t=1

2. White House Statement, May 26, 2009.

http://www.moveon.org/r?r=51451&id=16226-2269734-SqSXK.x&t=2

3. Cases: Archie v. Grand Cent. Partnership, 997 F. Supp. 504 (S.D.N.Y. 1998) and Marcella v. Capital Dist. Physicians' Health Plan, Inc., 293 F.3d 42 (2d Cir. 2002).

4. Cases: Flamer v. White Plains, 841 F. Supp. 1365 (S.D.N.Y. 1993), Ford v. McGinnis, 352 F.3d 382 (2d Cir. 2003), and Campos v. Coughlin, 854 F. Supp. 194 (S.D.N.Y. 1994).

5a. "Sotomayor's Notable Court Opinions and Articles," The New York Times, May 26, 2009.

http://www.moveon.org/r?r=51454&id=16226-2269734-SqSXK.x&t=3

5b. Cases: Bartlett v. N.Y. State Board, 970 F. Supp. 1094 (S.D.N.Y. 1997), Greenbaum v. Svenska Hendelsbanken, 67 F.Supp.2d 228 (S.D.N.Y. 1999), Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001), and Gant v. Wallingford Board of Education, 195 F.3d 134 (2d Cir. 1999).

6. "Sonia Sotomayor: 10 Things You Should Know," The Huffington Post, May 26, 2009.

http://www.moveon.org/r?r=51452&id=16226-2269734-SqSXK.x&t=4

7. "How Sotomayor 'Saved' Baseball," Time, May 26, 2009.

http://www.moveon.org/r?r=51455&id=16226-2269734-SqSXK.x&t=5

8. "Sotomayor's resume, record on notable cases," CNN, May 26, 2009.

http://www.moveon.org/r?r=51453&id=16226-2269734-SqSXK.x&t=6

9. "Sotomayor's resume, record on notable cases," CNN, May 26, 2009.

http://www.moveon.org/r?r=51453&id=16226-2269734-SqSXK.x&t=7

10a. Judge Richard C. Wesley, a George W. Bush appointee to the Second Circuit.

http://www.moveon.org/r?r=51451&id=16226-2269734-SqSXK.x&t=8

10b. "Sotomayor is Highly Qualified," The Wall Street Journal, May 9, 2009.

http://www.moveon.org/r?r=51456&id=16226-2269734-SqSXK.x&t=9

10c. Honorary Degree Citation, Pace University School of Law, 2003 Commencement.

Originally posted at InjuryBoard by David Mittleman

Congresswoman Debbie Wasserman Schultz to Greet “A New Dawn for Justice” at MAJ Convention

David Mittleman — Thu, 16 Apr 2009 09:15:40 GMT

The Michigan Association for Justice has announced that Congresswoman Debbie Wasserman Schultz will be the keynote speaker at its annual Convention, held on May 9 in Dearborn. The theme for the 64^th annual Convention banquet is "A New Dawn for Justice."

Congresswoman Wasserman Schultz is an ideal fit for the program. As a leading voice on progressive issues, she has established herself as a dedicated and faithful advocate for her constituents. Her hard work and outstanding character got her elected to the U.S. House of Representatives; she is the first Jewish woman from Florida to serve in that chamber. Before that, she was the youngest woman ever elected to the Florida Legislature.

In her role as a progressive leader in Washington, D.C., Congresswoman Wasserman Schultz serves on several key committees. These include the Committee on the Judiciary, which is chaired by Congressman John Conyers of Michigan, and the Committee on Appropriations.

Congresswoman Wasserman Schultz has proven that she is more than just a politician and public servant. Her personal obstacles have provided inspiration to countless individuals. Her recent revelation that she is battling breast cancer has heightened awareness of the disease and revived the discussion about early detection and treatment.

The MAJ Annual Convention is scheduled for May 8^th and 9^th at the Hyatt Regency in Dearborn, Michigan.

Originally posted at InjuryBoard by David Mittleman

George Will is Nothing But a Shill

David Mittleman — Mon, 12 Jan 2009 13:25:03 GMT

By promoting the propaganda created by the U.S. Chamber of Commerce and paid for by corporate America, George Will becomes the decoy. His recent article, "Exploding Litigation Means the Death of Common Sense," lacks common sense.

Come on George, you’re a Pulitzer-Prize-winning columnist and journalist. I know you are smart. Do you really want to experience a life without lawyers? Do you really want corporate America running around loose without being held accountable if they put dangerous or defective products into our free market? Who will be there to help the widow, the children who have lost their parental guidance, or the woman who had both breasts removed only to find out that the wrong pathology report was read?

Do your own research. The latest Department of Justice statistics released in 2004 show a steady decline in the number of lawsuits filed over the last ten-fifteen years. Likewise, the average and median verdict has dropped dramatically over the same period of time.

People and corporations in power can make fun of lawyers - scoff about safety labels - but I prefer safety to injury. Don’t be made the fool George - they are using you.

Originally posted at InjuryBoard by David Mittleman