Injuryboard Commentary - Supreme Court

U.S. Supreme Court Upholds $55 Million Punitive Damages Award Against Ford On Explorer Rollover Case

Brett Emison — Tue, 01 Dec 2009 12:52:32 GMT

The San Francisco Chronicle has reported that the United States Supreme Court rejected Ford Motor Co.'s appeal of a $55 million punitive damages award to a California woman paralyzed when where Ford Explorer rolled over and the roof caved in on her.

WASHINGTON -- The U.S. Supreme Court rejeected Ford Motor Co.'s appeal Monday of a $55 million punitive-damages award toa San Diego woman who was paralyzed when her Ford Explorer rolled over and the roof caved in on her.

Lawyers for Benetta Buell-Wilson said her punitive damages were less than one-fourth of what the jury had awarded, but were still the largest ever upheld in a published California ruling.

Wilson, then 46, was injured in January 2002 when she swerved to avoid an obstacle on the freeway near Alpine (San Diego County) and her 1997 Explorer overturned.

The pillars holding up the sport utility vehicle's roof crumpled, crushing Wilson as she hung upside down from her seat belt. She was left a paraplegic and in constant pain that will increase over her lifetime, said a state appeals court that ruled on her case in 2006.

The court said there was evidence that Ford had known the Explorer was prone to rollovers and had a weak roof but had decided against spending about $20 per vehicle to strengthen the roof.

When an auto maker, like Ford, is in a hurry to bring a new sport utility vehicle (SUV) to market, design mistakes can cause devastating injuries. The Ford Explorer, for example, was put on a platform originally designed for the Ford Bronco II. The result was a suspension system that did not work properly. The Ford Explorer's inherent instability created a vehicle that unreasonably prone to rollover.

To make matters worse, Ford failed to provide adequate roof strength to prevent to roof from caving in during rollover accidents. Ford put a weak roof on a vehicle that suffered from rollover problems.

In 2000, Bob Langdon was one of only eight lawyers in the United States to spearhead cases against Ford and Firestone for Ford Explorer rollover cases in the Ford/Firestone federal multidistrict litigation (MDL). Since then, Bob has been actively pursuing Ford in cases across the country for causing serious injuries and death to hundreds, if not thousands, of innocent drivers and passengers in the United States.

You can find out more about Bob Langdon and his firm, Langdon & Emison by visiting their auto and product safety blog or by visiting their web site.

Learn more and become a fan of Langdon & Emison on Facebook.

Originally posted at InjuryBoard by Brett Emison

Yaz / Yasmin / Ocella Side Effects: Thousands of Lawsuits Filed Across The Country

Brett Emison — Sun, 29 Nov 2009 11:18:56 GMT

There are reports of thousands of lawsuits across the country stemming from the serious and deadly side effects Yaz, Yasmin and Ocella.

In fact, there are so many lawsuits coming into New Jersey over Yaz and its sister contraceptive, Yasmin, that the New Jersey judiciary is considering forming a mass tort case against Bayer, located in Wayne, New Jersey.

Courthouse News Service reports that Bayer is facing more than 125 lawsuits over Yaz and up to six new cases a day are being filed around the country. Lawyers predict there could be 1,000 cases filed in the state.

The cases have been filed against Bayer, maker of Yaz and Yasmin, and Teva Pharmaceuticals, which makes the generic version, Ocella.

***

All three oral contraceptives are among the most widely used and involve a combination of ethinyl estradiol with drospirenone. It has been linked to health problems including strokes, heart attacks, deep vein thrombosis, gallbladder disease, pulmonary embolisms and death.

Bayer says its studies, which it financed, find cardiovascular risks among women on the Bayer products were comparable to an older formula of birth control pills and that patient safety is its top priority.

Buy Bayer’s credibility was questioned when the company received an FDA letter that it had to retract misleading television commercials that the FDA said overstated the drug’s efficacy and promoted it to relieve premenstrual syndrome, for which it is not approved. Bayer says it spent $20 million on the retraction.

Then in August, the FDA said Bayer did not follow proper quality control procedures in its drug making plant.

***

Federal Yaz litigation has already been consolidated for pretrial proceedings in an MDL or multidistrict litigation in East St. Louis. Pennsylvania state court is consolidating the Yasmin and Yaz lawsuits in Philadelphia.

Our firm has teamed up with the very best trial lawyers in the country to litigate Yaz and Yasmin lawsuits in the Multi-District Litigation (MDL) pending in the Southern District of Illinois, near St. Louis.

In fact, one of our team, Mark Niemeyer of Onder Shelton O'Leary & Peterson, LLC, is one of only three in the country to be selected by the Court to act as co-lead counsel for these Yaz and Yasmin cases.

"My role in this MDL is simply a reflection of the commitment of all us . . . to the women or families of women who suffered grave heath consequences after taking Yaz or Yasmin and just how seriously we take all our cases," said Mr. Niemeyer.

What Is An MDL? How Does An MDL Effect My Case?

You can find out more about MDLs and how they work at this recent post.

An MDL is like a class action, but with important differences. Instead of only one "case" (like in a class action), each plaintiff in the MDL maintains his or her own claim. However, because of many areas of common interest, the thousands of cases are consolidated for much of the pre-trial work up. For example, all of the cases filed in federal courts across the country will be transferred and consolidated in front of a single trial judge. The trial judge will appoint certain attorneys to represent all of the plaintiffs for various issues during pre-trial work up, such as discovery (fact-finding), motions, and scientific testing.

Lead counsel for the MDL is appointed by the trial judge. This small group of attorneys (for the Yaz MDL, there are only three attorneys appointed as co-lead counsel) will manage all of the pre-trial work up of all cases (potentially thousands) within the MDL.

If you file your Yaz or Yasmin claim in federal court, the three co-lead counsels -- including Mark Niemeyer of our team of attorneys -- will manage the work up of your case until trial.

Who Are Members Of This Team Of Attorneys?

The Onder Law Firm, based in St. Louis, Missouri has a track record of success and results for their clients in pharmaceutical litigation, personal injury claims, class actions and multi-district litigation (MDLs). Other lawyers across the country seek the firm's experience and expertise on complex litigation in specialty areas like dangerous drug cases.

Langdon & Emison, with locations in Chicago, St. Louis and near Kansas City, is one the country's premier trial firms, successfully taking on the largest corporations in the country. Langdon & Emison fought General Motors to the United States Supreme Court. . . and won. Baker v. General Motors held that corporations could not buy the silence of their employees and is taught in law schools across the country. The lawyers at Langdon & Emison actually try cases and have built a reputation for getting results for their clients with total recoveries of more than half a billion dollars. You can learn more by visiting Langdon & Emison's safety blog or profile.

Standly Hamilton, based in Dallas, Texas, litigates cases involving important social issues, dangerous pharmaceutical drugs, catastrophic personal injury, and wrongful death.

How Do Yaz / Yasmin / Ocella Cause Such Serious Problems?

Popular birth control pills, Yaz, Yasmin and Ocella, have been linked to serious and potentially deadly side effects. This deadly side effects affect women of all ages, including teens and young women.

Yaz, Yasmin and Ocella have been linked to serious side effects, such as heart attack, stroke, pulmonary embolism (PE), deep vein thrombosis (DVT), gallbladder disease and sudden cardiac death.

Yaz and Yasmin contain the chemical, Drosperinone, which acts as a diuretic and causes fluid loss. This fluid loss decreases sodium in the blood and increases potassium. This imbalance causes irregular heartbeats and blood pooling, resulting in heart attacks, blood clots and stroke.

Learn More

You can learn more about the serious side effects of Yaz, Yasmin and Ocella and find out what to do if you or a loved one have suffered any of these dangerous side effects at this Yaz/Yasmin/Ocella informational and safety web site.

Originally posted at InjuryBoard by Brett Emison

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

Judges Questioned when Two Young Men were Sentenced to Life in Jail with out Parole

James Moore — Wed, 11 Nov 2009 11:34:47 GMT

The Supreme Court has agreed to hear the cases of two young men who have been sentenced to life in jail with out parole. This was agreed on to see if there sentence hinders their rights to the 8th amendment. In many states judges can exercise their power to issue a life sentence to Juveniles even if their crime did not include taking the life of another person. Not only is the question of the Juveniles rights up for interpretation, but also the means in which the Judges are exercising their powers. It was said by FoxNews.com, not always the most impartial source, that “in both cases the judges ruled in large part to protect citizens from future crimes, prompting critics to say that they used their gavels to police society, and not just to administer law.” This role falls outside the responsibilities of a judge which is simple to govern the law.
It will be interesting to see the decision that is declared by the Supreme Court, and how the precedent they will be setting will affect crime rates among Juveniles.
http://www.foxnews.com/story/0,2933,573365,00.html
http://www.nytimes.com/2009/05/12/opinion/l12juvenile.html

Originally posted at InjuryBoard by James Moore

Wrongful Death Suit Reinstated in Virginia (VA) Against Parents Hosting Visting Teen

Rick Shapiro — Fri, 06 Nov 2009 18:41:31 GMT

Courts and juries can find adults who have temporary supervision or custody of children liable for injuries to those children even when the harm resulted from the actions of someone other than the supervising adults.

Summarizing this Nov. 5, 2009, ruling by the Virginia Supreme Court in a single sentence is difficult. As is all-too clear above.

What the ruling means for babysitters, parents who allow their children's friends to sleep over or spend other long periods visiting, or teachers and care providers is that they can be found to have a legal and civil duty to protect other people's children even when the children are not physically with the babysitter, host, teacher or caregiver.

Virginia's High Court voted 5-2 to support this interpretation of adults' child care responsibilities and liability when partially reversing a lower court's ruling that Richmond-area parents could not be held liable for the death of a North Carolina (NC) who was spending the night at their home.

The lawsuit stemming from the car crash death of 14-year-old Jaimee Elizabeth Kellerman now returns to a Virginia circuit court. In 2005, Kellerman died when a car she was riding in and which was being driven recklessly by 17-year-old Nathan DeFrank ran off a rural highway and hit a tree. Kellerman had permission from her parents to sleep over at the home of Paul and Paula McDonough. But, according to a Daily Press report, Kellerman's parents had specifically asked the McDonoughs not to let Jaimee ride with "boys with cars."

The Kellerman family is seeking $15 million from the McDonoughs in a wrongful death suit for being negligent in protecting Jaimee.

I cannot speculate on the outcome of the reinstated lawsuit, but I can say the Virginia Supreme Court has affirmed a high degree of liability for responsible adults in protecting children from the actions of other people. Broad determinations of liabilities are not rare, especially in regards to wrongful death claims. In light of this, and particularly the ruling in the Kellerman case, I can only advise adults asked to supervise minors (i.e., anyone under 18 years of age) to exercise the greatest care in ensuring those children's safety--a rule nearly all parents already follow but one which this tragic case underscores..

About the Editors: The Shapiro, Cooper, Lewis & Appleton personal injury law firm, whose attorneys work out of offices in Virginia (VA) and North Carolina (NC), edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard, and Northeast North Carolina Injuryboard as pro bono services.

EJL

Originally posted at InjuryBoard by Rick Shapiro

Statute of Limitations Extended In Some Georgia Auto Accident Cases

M. Brandon Smith — Thu, 08 Oct 2009 15:49:26 GMT

A recent Georgia Supreme Court case has tolled the state’s statute of limitations for Georgia car accident cases. In Beneke v. Parker, the Georgia Supreme Court held that the statute of limitations will be tolled from the date of the accident until the traffic citation is resolved.

Before this case, the 2 year Georgia statute of limitations began to run from the date the car accident occured. If you failed to file or settle your injury claim within that 2 year period you were forever barred from asserting it. This decision, however now tolls (extends) the statute of limitations and represents a continued effort to both clarify the law and protect innocent Georgia drivers that have been hurt through not fdault of their own.

In Beneke v. Parker, Parker was hit from behind and overturned when Beneke hit her car. In this Georgia car accident, Beneke was cited for following too closely behind Parker’s car. Parker filed a Georgia personal injury lawsuit against Beneke, but filed it after the two years statute of limitations. Initially, the trial court did grant Beneke’s motion for summary judgment (motion to dismiss her case) based on the expiration of the two years statute but it was subsequently denied on a motion for reconsideration. The court found that Parker’s Georgia injury lawsuit was timely-filed because the statute of limitations was tolled until Beneke resolved the traffic citation by posting a cash bond to dispose of the citation.

After the case reached the Supreme Court, they ruled that the two years statute of limitations is extended by the same amount of time that passes between the car accident and the resolution of the ticket.

Here is the text from the decision:

In the Supreme Court of Georgia

Decided: September 28, 2009

S08G2078. BENEKE v. PARKER et al.

S08G2082. PARKER et al. v. BENEKE.

HUNSTEIN, Chief Justice.

On April 27, 2005, Patricia Parker was injured when the car in which she

was a passenger was struck from the rear and overturned by a vehicle driven by

Alan Beneke; Beneke was cited for following too closely. See OCGA § 40-6-

49. Parker filed a personal injury action against Beneke on May 11, 2007. The

trial court initially granted Beneke’s motion for summary judgment based on the

expiration of the two-year statute of limitation, see OCGA § 9-3-33, but on

motion for reconsideration vacated its order and denied summary judgment. In

finding that the complaint was timely-filed because the statute of limitation had

been tolled until Beneke posted a cash bond disposing of the traffic citation on

May 19, 2005, the trial court relied on OCGA § 9-3-99, which provides that

[t]he running of the period of limitations with respect to any cause of

action in tort that may be brought by the victim of an alleged crime which

arises out of the facts and circumstances relating to the commission of

such alleged crime committed in this state shall be tolled from the date of

the commission of the alleged crime or the act giving rise to such action

in tort until the prosecution of such crime or act has become final or

otherwise terminated, provided that such time does not exceed six years.

In Beneke v. Parker, 293 Ga. App. 186 (667 SE2d 97) (2008), the Court of

Appeals affirmed the denial of summary judgment, but vacated the portion of

the trial court’s order ruling that Beneke had committed a “crime” as a matter

of law so as to bring OCGA § 9-3-99 into play, holding that this question must

be resolved by a jury. See Beneke, supra at 189-190 (1). We granted certiorari

to consider whether the Court of Appeals erred in holding that a “crime” within

the context of OCGA § 9-3-99 must be a “crime” that satisfies the definition set

forth in OCGA § 16-2-1 (a), i.e., one that involves criminal intent or criminal 1

negligence. For the reasons that follow, we hold that it did so err.

[T]he fundamental rules of statutory construction . . . require us to

construe a statute according to its terms, to give words their plain and

ordinary meaning, and to avoid a construction that makes some language

mere surplusage. [Cits.] At the same time, we must seek to effectuate the

intent of the legislature. [Cit.] Slakman v. Continental Casualty Co., 277 Ga. 189, 191 (587 SE2d 24) (2003). A violation of one of the Uniform Rules of the Road, such as the rule that a OCGA § 16-2-1 (a) provides that “[a] ‘crime’ is a violation of a statute of this 1 state in which there is a joint operation of an act or omission to act and intention or

criminal negligence.” 2 driver must not follow another vehicle too closely, is a misdemeanor, OCGA § 40-6-1 (a), and a misdemeanor is “any crime other than a felony.” (Emphasis supplied.) OCGA § 16-1-3 (9). Thus, the plain language of OCGA § 9-3-99 would encompass a violation of a Uniform Rule of the Road. To impose a more

stringent definition of “crime” within the context of the statute would render

superfluous its language that the statute of limitation is tolled from the date of

the alleged crime “or the act giving rise to such action in tort” until the

prosecution or other termination of such crime “or act.” The Court of Appeals properly affirmed the denial of summary judgment to Beneke. However, no factual determination need be made as to whether Beneke acted with criminal intent or criminal negligence, i.e., whether his violation of OCGA § 40-6-49 constituted a crime as defined in OCGA § 16-2-1 (a), in order to apply OCGA § 9-3-99 here. We thus reverse the portion of the

Court of Appeals opinion holding otherwise. Like the Court of Appeals, we

recognize that our holding in this case will have a significant impact on personal

injury actions arising out of vehicle accidents by tolling the statute of limitation

in those situations where a traffic citation is issued. See Beneke, supra, 293 Ga.

App. at 191. Nonetheless, we are constrained by the language of the statute to

3 reach this result. If the Legislature had intended to limit the application of

OCGA § 9-3-99 to tort actions arising from only certain types of crimes, e.g.,

felonies or specific intent crimes, it certainly could have done so. It did not, and

any undesirable result is a matter properly addressed by the General Assembly

rather than the courts.

Judgment affirmed in part and reversed in part. All the Justices concur.

Originally posted at InjuryBoard by M. Brandon Smith

Punitive damages for maritime claims

Timothy Young — Thu, 17 Sep 2009 08:40:50 GMT

In a most recent United States Supreme Court maritime decision, it was ruled that injured seamen could be awarded punitive damages in addition to their maintenance and care damages. Maintenance is the cost of lodging a person on the boat (food, room and board) after they have been injured. Care is the on-site medical attention received post-injury.

Edgar Townsend was a seaman and crewmember of the Motor Tug Thomas. He injured his arm and shoulder by falling on the steel deck. Afterwards, his Jones Act employer and the owner of the tugboat, Atlantic Sounding informed him that he would not receive maintenance and care. This was an obligation's of the owners under the Lewis federal precedent.

Townsend filed suit alleging maintenance, care and punitive damages for willfull and arbitrary failure to pay maintenance and care. An interlocutory appeal was filed which resulted in the court ruling in favor of punitive damages. This was appealed again and this time the Supreme Court firmly established that punitive damages were not only a general remedy in common law and maritime law, but that willful neglect and/or outrageous conduct was exactly the kind of behavior that punitive damages meant to deter.

The establishment of 45 Sec. (51-60) did not limit the remedies that could be sought. It merely outlined that negligence would be the measuring bar for liability. It in no way limits remedies or bars the common law rule of punitive damages or remedies in general

This new case on maintenance and cure law will help protect injured seaman and allow them to obtain medical treatment and compensation while they are injured. Now a Jones Act employer may think twice before wrongfully denying medical treatment and compensation to an injured seaman.

Originally posted at InjuryBoard by Timothy Young

Georgia Supreme Court Considers Whether "Tort Reform" Equals Crooked Justice

David Mittleman — Wed, 16 Sep 2009 16:04:16 GMT

The Georgia Supreme Court heard oral arguments on a case that could invalidate the insurance industry's attempts to provide immunity to the most negligent doctors and deny recovery to the most devastatingly injured patients.

When 75-year-old Betty Nestlehutt's skin on her face started to die after her plastic surgeon cut off blood flow to her face, the gaping wounds from her temple to her chin paled in comparison to the permanent scarring endured in her heart. Surely, a jury would do their very best to fully compensate her for her pain and suffering.

A Fulton County jury did, in fact, award her a substantial $1.15 Million verdict for non-economic damages (including $900,000 for her own pain and suffering) along with $115,000 for past and future medical expenses. This was precisely the type of result that juries spend hours deliberating, missing days of work, hearing evidence, determining the facts of the case. Little did they know that their decision would be undercut by Georgia's "Tort Reform" law.

Under Georgia's law, which mirrors the laws in many other states and which Republicans in Congress are all too ready to impose nationally, the role of the jury is unilaterally undermined because no matter what their findings are for noneconomic pain and suffering, Georgia had a maximum damages cap of $350,000 ($550,000 less than what this jury thought Ms. Nestlehutt merited).

Courts all over the country are handcuffed by the laws, which often conflict with Constitutional protections for the right to jury trials. Lawyers are challenging a similar law in Indiana where the cap is higher than in Georgia.

Ultimately, these "tort reform" caps are really nothing more than Crooked Justice for insurance companies and negligent doctors. As the lawyers for Ms. Nestlehutt argued, the most injured patients are blocked from gaining their full compensation, and the most egregiously negligent doctors will never have to full pay for their negligence. In a country that values the right to a trial by jury, we should not let insurance lobbyists devalue that time honored and cherished tradition.

Originally posted at InjuryBoard by David Mittleman

Insurance Companies, Not the Supreme Court, to Blame for High Rates

David Mittleman — Tue, 15 Sep 2009 13:07:00 GMT

It’s a common refrain we hear over and over in Michigan: "My auto insurance rates are too high." Almost everyone agrees that consumers should be paying less for auto insurance, but there has been a great deal of misinformation about who is responsible for the high rates. A recent Michigan Supreme Court decision has added fuel to the fire.

The case - actually two separate cases that were consolidated due to the similar legal issues involved - deals with two individuals who suffered horrific injuries in automobile accidents. As a result of their injuries, these accident victims required around-the-clock nursing care. Anyone who reads the factual description of the injuries would concede that they are "catastrophic" in the ordinary sense of the word. As it turns out, the injuries were "catastrophic" in the legal sense of the word, as well.

In Michigan, an accident victim's own no-fault personal injury protection carrier is responsible for paying medical expenses, wage loss, and replacement services related to an auto accident. In the event these expenses exceed a certain amount (currently about $460,000) the Michigan Catastrophic Claims Association (MCCA) steps in to reimburse insurance companies for the balance. The MCCA was created by the legislature in 1978 to help defray the costs borne by any one individual insurance company.

The MCCA challenged the reasonableness of the care provided to the two injured accident victims. It claimed that it should not have to pay the entire amount agreed to by the no-fault insurance carrier. Fastidiously applying Michigan law, the Michigan Supreme Court ruled that the MCCA must pay the amount agreed upon by the no-fault insurer and the accident victims.

Insurance companies have emphatically decried this decision. They now claim that they have no choice but to increase the rates charged to all Michigan policy holders. An editorial in a major Michigan newspaper recently echoed these sentiments, essentially blaming the Supreme Court for the insurance rate increase.

Fortunately, the insurance companies’ attempts to pull the wool over consumers’ eyes has not been entirely successful. When put to the test of common sense, the insurer’s argument begins to unravel. The recent $20 rate increase is far in excess of what would be necessary to cover the claims at issue in the recently-decided case. Given that the increase was announced before the Court released its decision, it is hard to believe that the increase was the result of the decision. Furthermore, Michigan law permits insurance companies to review settlements for reasonableness before they are finalized. Once they have been finalized, however, insurers should be bound to the agreement, just as consumers are.

Insurance exists to spread the risk of loss, so one individual accident victim is not left with a crushing, unpayable debt. Simply put, insurance companies and the MCCA must be held accountable to the people they are meant to serve. It alone sets the rate it charges, and it should have to explain in detail why it charges the rate it does. Then will it be obvious that the insurance companies are responsible for higher rates, not the Justices who apply the law as written.

Originally posted at InjuryBoard by David Mittleman

Michigan Supreme Court To Review Auto Injury Law

David Mittleman — Sun, 23 Aug 2009 07:47:00 GMT

In a 4-3 order released on Thursday, the Michigan Supreme Court decided to reconsider a case that could make it easier for victims of automobile accidents to recover fair compensation for their injuries. The Court will be taking a second look at McCormick v. General Motors, which has been slowly working its way through the legal system since late 2006.

In 1973, Michigan’s "no fault" insurance legislation took effect. The law was meant to make it easier for injured people to receive certain insurance benefits from their own auto insurance carrier without the need and expense of litigation. Regardless of fault, accident victims would receive lifetime medical benefits for injuries resulting from the accident as well as up to three years’ worth of wage loss and replacement services related to the accident.

In exchange, it would be slightly more difficult to recover "non-economic" damages, such as those for pain and suffering. In order to recover for those injuries against the at-fault driver, an accident victim would have to show that he or she suffered a "threshold" injury.

In the decades that followed the passage of the No Fault Act, there was a great deal of dispute in the courts about what type of injuries met the threshold. Then, in 2004, the Michigan Supreme Court decided Kreiner v. Fischer, a case that substantially raised the bar on what sorts of injuries and limitations plaintiffs would have to prove in order to recover non-economic damages. In the ensuing five years, the threshold has been placed further and further out of reach of most victims, thus denying them adequate compensation for their injuries.

The Supreme Court’s recent order for reconsideration of McCormick may be an indication that this is about to change. Given the current composition of the Court, there is some hope that individual rights will again receive protection under the law while insurance companies must bear some risk of loss, as they are meant to.

Originally posted at InjuryBoard by David Mittleman