Grand Rapids Personal Injury Lawyer - Miscellaneous

Keeping Children Safe

Timothy Smith — Tue, 01 Dec 2009 17:03:58 GMT

I wanted to take a quick moment to bring to my reader's attention a book that is a must read if you are a parent or you are friends with someone who is a parent. "365 Ways to Keep Kids Safe", is a book authored by Attorney Don Keenan who is one of the leading advocates for child safety in the country and an excellent trial attorney as well.

The book can be ordered here: http://www.balloonpress.com/365wayssample.html

An excellent review of the book can be found here.

As a fellow attorney dedicated to raising the public's awareness of safety issues through this particular website, Attorney Keenan is an excellent example of how to educate our friends an families to lead a safer day-to-day existence.

Originally posted at InjuryBoard by Timothy Smith

The IRS warns of Tax Preparer Fraud

Timothy Smith — Wed, 28 Jan 2009 15:51:34 GMT

It's that time of year. We start gathering our tax documents and sharpening our pencils as we hope for the best. For those that use a tax preparer, be advied: the IRS is already issuing warnings.

The main warning is more of a reminder that the individual, not the tax preparer is responsible if a fraudulent return is submitted under their name.

What does this mean? It means penalties and interest will be owed by the individual, even if they had no idea that their tax preparer committed fraud.

The IRS is quick to point out that most tax preparers are honest, but for those that aren't, why would they do this? I'm not sure, but a fat refund means a fat bill to the client. If the refund was obtained through a fraudulent return, you have problems.

According to the IRS Criminal Investigation Division, in 2008, there were 214 investigations of what was thought to be tax preparer fraud. This brought about 142 indictments and 124 of the tax preparers were convicted and sentenced.

Jail Time? You bet. An average of 18 months.

So what is a consumer to do when they find out their tax preparer has committed fraud and now they are on the hook for return of their refund, and penalties and interest? Well, you need to deal with the IRS immediately. You owe it and there is no way around it. You'll need to work out a payment plan of sort with the IRS and, in the meantime, put the tax preparer and his/her firm on notice of your claim. Even though you have to pay the IRS what is owed, you should be able to get reimbursed from the tax-preparer and/or his office.

Click here for some tips from the IRS on selecting a tax preparer

Originally posted at InjuryBoard by Timothy Smith

Restore Integrity and Fairness to Michigan's Supreme Court

Timothy Smith — Tue, 21 Oct 2008 12:05:40 GMT

This is the campaign slogan of Judge Diane Hathaway who is running against incumbant Chief Justice Cliff Taylor for a seat on Michigan's Supreme Court. She is a former prosecutor with more than 15 years of experience as a circuit court judge. She has sworn to restore fairness and integrity to our high court. The lack of integrity, as it relates to Justice Taylor, starts right with his campaign.

The centerpiece of Justice Taylor's campaign is his claim that the Wall Street Journal has declared his court to be "the Finest in the Nation".

In fact, if you go to his campagin website, it's the first line of the bio section of his web-site. The very first sentence advises the reader of his endorsement by the Wall Street Journel as the "Best Court in the Nation". It's an accolade that he trumpets nearly every time he stumps for his re-election.

The problem with this statement is that the Wall Street Journal never said this......

In fact, the only time this comment appeared in the Wall Street Journal was when a former employee of Justice Taylor, who now works for the conservative think-tank "The Mackinaw Center", wrote a letter to the editor of the Wall Street Journal declaring that, in his opinion, the Michigan Supreme "may be one of the finest in the nation". The Wall Street Journal didn't endorse or embrace this court, it was a former employee who simply wrote a letter to the WSJ editor.

I could write a letter to the New York times claiming that Michigan's Supreme Court was the worst in the nation. If they published it in their op-ed section, it would by fraud for the Hathaway Campaign to declare that the New York Times has declared Michigan's high court to be the worst. But that is exactly what Justice Taylor has done here.

When it comes time to cast a vote, cast a vote that will restore fairness and integrity to Michigan's Supreme Court and cast a vote for Judge Diane Hathaway.

Originally posted at InjuryBoard by Timothy Smith

The Michigan Code of Judicial Conduct

Timothy Smith — Fri, 02 May 2008 10:23:13 GMT

There is a code of conduct here in Michigan that mandates how Judges must act and carry themselves. The Michigan Code of Judicial Conduct was adopted in October of 1974 and outlines the behavior and conduct that we as citizens expect from our judiciary. It applies to every Judge in this state, from the Probate Judge in Keweenaw County to the seven Justices that sit on our State’s Supreme Court.

Canon 2, section B, of the Code of Judicial Conduct states:

A judge should respect and observe the law. At all times, the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary. Without regard to a person’s race, gender, or other protected personal characteristic, a judge should treat every person fairly, with courtesy and respect.

Common sense, right? It’s how we all were raised by our own parents; treat others with courtesy and respect. You wouldn’t think that something as simple as that concept would have to be codified as a formal rule regulating judicial conduct. But, it is, and judge’s must adhere to it.

You would hope that the judge’s on the highest court in the state, our Supreme Court would know these rules and lead by example. Some of them have, and some of them have not.

In July of 2006, the 7 Supreme Court Justices met to discuss who to appoint to act as Chief Judge of the Kent County Probate Court. During this meeting, Justice Weaver articulated the reasons she disagreed with the appointment made by the majority who was led by Chief Justice Cliff Taylor.

In response to her dissent to the appointment, Justice Weaver became, in her own words, “the target of a personal attack”.

Chief Justice Taylor drafted and circulated to the justices and the court staff a concurrence to the appointment and personally attacked Justice Weaver in making reference to her weight. In describing his reaction to Justice Weaver’s dissent, he wrote, “I even suggested Justice Weaver use a hunger strike as a vehicle [to express her dissent] as it seemed to have the potential for everyone to be a winner.”

Personal attacks against women or against individuals who may be overweight have no place in any workplace. But to have the Chief Judge of the Michigan Supreme Court

insult a female co-worker over her weight……. Completely unacceptable. Completely unprofessional.

In fact, some might argue that it violates the Michigan Code of Judicial Conduct which mandates that Justice Taylor treat Justice Weaver with “courtesy and respect”. I certainly would.

What is even more disappointing, is that this isn't an isolated incident by Justice Taylor. He has been described by his fellow Justices as unprofessional, disorderly, biased, prejudiced, and an individual who misuses and abuses his power.

Remember how Justice Taylor treats his female co-workers in November when he is up for re-election. We expect and deserve more from the highest court in the State. At the very least, we deserve a Justice that will abide by the Code of Judicial Conduct. Show that you want more by casting a vote against this type of behavior.

Vote against Justice Cliff Taylor.

Originally posted at InjuryBoard by Timothy Smith

Justice Cliff Taylor Abolishes 30 years of Established Law..... Again

Timothy Smith — Wed, 30 Apr 2008 11:40:15 GMT

As an attorney, I’m sought out by individuals to give them advice and counsel on issues they are facing in their lives. Typically, I sit and have a cup of coffee with the new clients and listen to the facts surrounding the legal issues that are causing them concern. After sorting through the facts, my job is to explain to them how I believe their particular fact situation would be handled in a court when the judge or jury applies the “law” to their “facts”. Essentially, I help them make an educated decision about how Michigan Law might handle their facts.

This is where the concept of “Attorney and Counselor” came from. We “counsel” people on what their legal options might be considering the facts that they are presented with.

This assumes that the “law” is consistently applied by the judges here in Michigan. This assumes that the “law” is uniformly applied and followed by the judges of this State. This assumes that judges won’t re-interpret or re-write the “law” to fit there own personal agenda. This assumes that judges won’t twist the “law” to benefit themselves or their campaign donors……

Once the twisting and re-writing starts, it becomes impossible for any individual to know what rights they have, if any, because there is no consistent application of the “law”.

This sets the stage for McDonald v. Farm Bureau Insurance Co. This is the second case this week from Chief Justice Cliff Taylor where longstanding Michigan law has been re-written. The second time this week it’s been re-written in favor of insurance companies and large corporations. The second time this week that an individual was denied their day in court.

Justice Marilyn Kelly wrote a dissenting opinion to Justice Taylor’s majority opinion where she explained that Justice Taylor had effectively abolished a rule of law involving what is known as “Judicial Tolling” that had been in effect in Michigan and other states for over 30 years. This rule of law, which had been in effect for over 30 years, was destroyed with one swipe of Justice Taylor’s pen.

Justice Kelly wasn’t the only judge shocked by Justice Taylor’s actions. There were 2 other Supreme Court Justices, 3 Court of Appeals Judges and the original trial court Judge that all disagreed with what Justice Taylor did in re-writing 30 years of established law here in Michigan.

Perhaps Justice Weaver said it best in her dissent to the opinion of Justice Taylor in the McDonald case,

In this case, the latest example of the majority of four’s judicial activism in no-fault insurance cases, the majority of four abolishes judicial tolling of contractual limitations periods for insurance contracts. In doing so, the majority of four overrules more than 30 years of this Court’s precedent. Or, to borrow the majority’s rhetoric, the majority of four has replaced the “rule of law” with the “rule of four justices.”

In re-wrinting Michigan law, Justice Taylor denied Mary Ellen McDonald her day in court in front of a jury of her peers. I couldn't help but recall the comments that Jstice Taylor made during "Law Day" in 2005 when he stated,

"The founders of this country clearly understood, and were even willing to die for, the lesson of centuries of British jury trials: that the jury was a bulwark against tyranny".

If he believed what he said, as I do, he should recognize that his actions in re-writing 30 years of established precedent [on no less than 2 occasions in the last 2 weeks!] is, on it's face, tyrannical.

Justice Taylor is up for re-election this November. I don’t know who will be running against him. I do know that since I’m a Republican, most would expect me to vote for a Republican Justice who had been appointed by a Republican Governor, but I can’t.

And neither can many of the other Republicans I meet and speak with about these issues.

As a Republican, I believe in the system of checks and balances. I believe that no single arm of the government should become more powerful than the other. I believe that the “rule of four justices” that Justice Weaver mentions in her dissent flies in the face of everything our system of government stands for and I can stand for it no longer. It’s time to check and balance our State’s government.

It’s time to vote out Justice Taylor.

Originally posted at InjuryBoard by Timothy Smith

Kent County Judge Retires

Tim Smith — Thu, 20 Mar 2008 08:34:08 GMT

Judge Kolenda announced his retirement from the Kent County Circuit Court bench. His sense of fairness and an unwaivering quest for the truth makes his loss as a jurist a sad day for the folks of Grand Rapids. He issued an opinion in a case involving one of the Big-3 auto makers who had played games with the plaintiff's attorney and the court in obstructing discovery and witholding evidence. His written opinion on that issue from 1/27/97 is a great read and commentary on the question of "What is truth"?

The text of the trial court's thorough revised opinion, Traxler v Ford Motor Co, Kent Circuit Court #93-84039-NI, issued 1-27-97, is repeated here in full:

"What is truth?" is the core question posed by every lawsuit. People v Barbara, 400 Mich 352, 357 (1997). Lawsuits are not activities to generate fees, games to be won, or theater to entertain. Lawsuits are searches for the truth of who did what and who is to be accountable for the consequences. Given the complexities of human affairs, the truth cannot always be found, but the fair search for it is why courts, lawyers and lawsuits exist. When it is found, the truth must be revered, and one answer to the question, "What is truth?" must always be, "What is expected," which means that when it is known, the truth must always be spoken. It wasn't in this case. That is why defendant Ford Motor Company is being defaulted.

When the truth is concealed or deliberately distorted, the reaction must be outrage. Anything less accepts dishonesty and by accepting it encourages it. That is why "[c]courts have never been inclined to condone or reward those who choose to perjure themselves. Nor should they, since the pernicious effects of perjury are evident to all. Upon disclosure, perjury should be condemned by the courts and the guilty party dealt with accordingly," Lanky v Lanky, 29 Mich App 17, 22 (1970). Unless the price for dishonesty is unbearable, the temptation to it "would be not a little increased." Nagi v Detroit United Ry, 231 Mich 452, 460 (1925); and People v Adams, 430 Mich 679, 695 fn 11 (1988). Perjury "is utterly reprehensible." In the matter of Grimes, 414 Mich 483, 494 (1982); and People v Adams, supra, at 695. It tears at the very fabric of the legal system and at the objective of the rule of law, which is to keep peace in the community by fairly resolving the disputes endemic to communal life. Reverence for the truth is an essential component of fairness. If the public ever comes to believe that the courts do not abhor dishonesty, they will not accept the courts' decisions as fair and will not be willing to submit their disputes to them.

It is because Ford has been caught concealing a great deal of significant information and blatantly lying that this Court is entering a default against it. No lesser penalty is proportional to the offense. A default, not a default judgment, is being entered because Ford remains entitled to a jury assessment of plaintiffs' damage claims, Wood v DAIIE, 413 Mich 573 (1982), but a default is appropriate. It should be axiomatic that hiding information and lying cannot be tolerated and must be answered with sanctions which unmistakably say so. Regrettably, Ford needs to hear more. It insists that this Court is powerless to deal with its misconduct. That is not so. There is ample precedent recognizing the propriety of what this Court is doing in this case.1

Statement of Proceedings

When she was two months old, Sarah Traxler was severely injured when the automobile in which she was a passenger was rear-ended by another automobile. Although securely fastened in a child restraint seat, Sarah suffered severe brain injuries when the back of her mother's seat collapsed onto her. In all likelihood, Sarah's physical and mental capabilities will never develop beyond those of a 3-year old. She and her parents sued the manufacturer of the child restraint seat2 and Ford, the manufacturer of her parent's car, a 1986 Ford Tempo. Their claims against Ford are that it was negligent in not designing seats to withstand the forces imposed on them in routine collisions.

This case is now weeks from trial. It was mediated very favorably to plaintiffs, settlement efforts failed, and trial is looming. What happened during discovery is why a default is being entered. Discovery was not only extensive, it was arduous. It is apparent from the motions on file that Ford seldom answered an interrogatory, produced a document, or scheduled a deposition without burdening plaintiffs' counsel with delays and the need to fight for everything owed. A very common response to plaintiffs' interrogatories was to object to them as overbroad and, then, "in the spirit of discovery," to answer them very narrowly, effectively reformulating the questions so that the answers revealed nothing pertinent. (A particularly pertinent example is discussed below.) Ford also played word games. For example, when plaintiffs asked for information about seats "collapsing rearward," Ford responded that it could not answer the question because the word "collapse" is ambiguous and argumentative. Ford could not locate documents, and witnesses and/or counsel were seldom available for depositions. Only dogged persistence by plaintiffs' counsel got anything. Every discovery request had to be followed with motions to compel and, then, with prolonged and wearing negotiations. In the best tradition of a civil profession, plaintiffs' counsel "worked with" Ford. Unfortunately, Ford used that willingness to evade.

Last summer, in July, Ford's discovery tactics resulted in this Court issuing an order which said and did the following:

"After a careful review of them, this Court finds (i) that plaintiffs' discovery requests at issue are appropriate, MCR 2.302(B)(1), and (ii) that, especially when placed in the context of the difficult time plaintiffs have had throughout this case obtaining information from defendants, the responses to those requests are obstructionist. Those responses appear to be a calculated effort to burden plaintiffs' counsel and to so narrowly redefine the standard of "relevant to the subject matter" in MCR 2.302(B)(1) and disingenuously invoke, given Ford's capabilities, the standard of "undue burden or expense" in MCR 2.302(C), that much of considerable potential significance to this case can be withheld by defendants. That Ford has produced much already is a product of plaintiffs' persistence and patience, not cooperation by Ford. Accordingly, as authorized by MCR 2.313(A)(2)(c):

IT IS HEREBY ORDERED AND ADJUDGED that plaintiffs' Fourth Motion to Compel against Ford Motor Company and Ford Motor Company of Canada, which motion is dated May 26, 1996, and was filed on May 31, 1996, be, and the same hereby is, GRANTED. Defendants Ford Motor Company and Ford Motor Company of Canada are to provide within 28 days hereof full and complete responses to the disputed particulars of plaintiffs' Second Request for Admissions, Fourth Set of Interrogatories, and Fifth Request for Production of Documents. If, in the judgment of this Court, appropriate responses are not provided within that time, a default will be entered against said defendants and, as to them, trial will proceed solely on the issue of damages. See MCR 2.313(B)(2)(c) and MCR 2.313(D)(1)(b). Entry of a default is the only credible response to persistent obstructionism by a litigant with Ford's economic strength. See, Wood v DAIIE, [infra]; Thorne v Bell, [infra]; and Frankenmuth Ins Co v ACO, Inc, 193 Mich App 389, 396-397 (1992). Any lesser sanction is no penalty and will invite, not deter continued misconduct."

Ford did not fight that order. It did not appeal nor did it seek reconsideration. Instead, Ford promptly turned over 120,000 pages of documents. What plaintiffs' counsel discovered when they read those documents was disgusting; no other word would be accurate. For over two years, Ford had concealed very significant documents and information, and, worse, had blatantly lied about those documents and about the information in them; any word other than "lied" would understate what Ford did.3 Those revelations prompted plaintiffs to ask this Court to enter a default judgment against Ford. Their counsel had run out of patience. After carefully reviewing plaintiffs' discovery requests and some of Ford's responses (hundreds of pages), studying several rounds of briefs, and listening to counsels' very helpful oral argument, this Court had to agree that an outrageous fraud has been perpetrated by Ford-a few telling examples are discussed below-and that the sanction of a default, but not a default judgment, is the appropriate response.4

Plaintiffs' recent briefs and their counsel's illuminating oral argument do an outstanding job of identifying the deception perpetrated by Ford. The higher courts which will be reviewing this Court's decision are invited to study those briefs and the transcript of that argument. Nothing but needless prolixity will be achieved by restating here everything said so persuasively there. Those briefs and the transcript are all part of the record. Suffice to say here, Upjohn Co v New Hampshire Ins Co, 438 Mich 197, 207, fn 7 (1991), that a few examples amply demonstrate that Ford consistently concealed information legitimately requested by plaintiffs and consistently lied in its response to appropriate discovery requests. Ford does not deny the shortcomings of its discovery responses. It tries only to excuse them as unintentional or not prejudicial, and it argues strenuously that this Court lacks authority to punish, by default or otherwise, it for what it did. Obviously, the Court sees things much differently.

Early in the discovery process, back in August, 1994, plaintiffs had submitted interrogatories to Ford asking whether it had used the seats in Sarah's parents' car, a 1986 Ford Tempo, in other vehicles, as well. If it had, discovery would have to include seeking information about those other vehicle models. If the seat had been used only in Tempos, discovery could be limited to that model. Ford answered that the seats used in the Tempo "are unique to the Tempo/Topaz car lines only." That answer was not true. Plaintiffs have learned that the Tempo/Topaz seat was derived from the Escort/Lynx seat and that that seat had been used in numerous other models. Ford admits that now, but only after having been caught in a lie.

How Ford answered plaintiffs' interrogatories about seats reveals much about its handling of discovery in this case. Ford insists that it is true that "the seat track assembles used in the Tempo are unique to the Tempo/Topaz car lines only." That may be, but the question asked of Ford was not so limited. Ford was asked whether the front "seat tracks and seat backs" installed in 1986 Tempos "were ever installed on any other Ford Motor Company vehicle." If they were, particulars were requested. Ford objected to the interrogatory as "overly-broad, vague, irrelevant, oppressive and not calculated to the discovery of admissible evidence," and then responded that "the seat track assembles used in the Tempo are unique to the Tempo/Topaz car lines only." What it did was craftily reformulate the question to ask only what it wanted to say, namely: that the seat track assemblies, not the seats themselves, were unique, thereby creating the misleading impression that the seats had not been used in any other vehicles. With that impression, plaintiffs would not expect to be told about tests and lawsuits involving the seats and other models, even though the seats were, it now turns out, the same. That was as dishonest as saying in so many words that the seats, not just the seat track assemblies, were unique to the vehicle. "It is generally recognized that 'fraud' may be consummated by suppression of facts and of the truth, as well as by open false assertions." USF&G v Black, 412 Mich 99, 125 (1981). Ford's answer was not simply a precise answer to a poor question; it was a dishonest answer, carefully crafted to mislead the reader. An impression can be so strong and so obviously what someone wanted to impart that it is a statement to that effect, in this case, a false statement.

The impact of Ford's deception was made abundantly clear by its latest discovery disclosures. Plaintiffs had asked Ford to identify and produce all tests done to establish the integrity of the seats used in 1986 Ford Tempos, as well as the same or similar seats used in other vehicles. Ford responded that it had performed 48 rear impact tests on the Tempo/Topaz seat between 1984 and 1994. The discovery disgorged in response to this Court's July order revealed that there have been hundreds of such tests performed on the same seats in numerous other models. Those tests are all highly relevant to this case and were requested by plaintiffs. By the way it responded to plaintiffs' interrogatories that the Tempo/Topaz seat was unique, Ford hid all those other tests.

Concealing those tests concealed something highly significant to this case. In those tests, the front seats routinely collapsed into the back seat on the slightest impact. Throughout this case, Ford has insisted that its seats, including those in 1986 Tempos, are designed to "yield." Ford has persistently taken great exception to any characterizations of seats having "failed," "broke," or "collapsed," but the test reports just disclosed repeatedly use those very terms to describe what happened to Ford seats in collisions just like that which occurred in this case. What Ford disclosed also revealed that, years ago, it had developed, but never used, a seat capable of withstanding much greater rear-end impacts than that which injured Sarah. Until last August, Ford had disclosed none of that.

Ford also failed to disclose that it had convened a Task Force to study seat back performance, that the Task Force had had numerous tests performed on Ford seat backs and that a report was drafted, but apparently never issued. Ford attempts to justify its withholding of that information by contending that, for years, the existence of the Task Force and its work were thought to be privileged. The Task Force was finally disclosed because Ford and its counsel now conclude that the same are "probably not privileged." The claim of privilege is disingenuous. Absolutely nothing disclosed about the Task Force and its activities supports any appearance of a privilege. Furthermore, highly revealing of the claim of privilege is how Ford handled that claim. The proper response would have been to note the existence, but not disclose the particulars, of the information, and, then, decline to produce it because of a privilege. Martin, et al., Michigan Court Rules Practice (3d ed), Rule 2.314, p 383. The Court could then have ruled on the claim. Ford's counsel knew the right way. Ford's silence was not the assertion of a privilege, but the deliberate concealing of information known to be discoverable. The claim of a mistaken belief in a privilege is an unpersuasive rationalization.

One more example of Ford's mendacity will suffice. Another of plaintiffs' 1994 interrogatories asked Ford to identify all lawsuits against it which complained about defects in the seat backs and/or seat tracks of the 1986 Ford Tempos and other Ford vehicles utilizing the same or similar seats. At first, Ford identified only 2 such lawsuits. Later, Ford reported that there had been 48 lawsuits, but no particulars were ever disclosed. The recently-produced documents reveal that Ford has defended the Tempo/Topaz seat in 91 lawsuits. Some 19 of those lawsuits were brought on behalf of minor children who were injured due to seat failures, several of them having been back seat passengers injured just like Sarah Traxler, by a collapsing front seat. Even more startling is the revelation in the documents disclosed in response to this Court's July order that Ford has defended hundreds of lawsuits involving the same seat in other models. Nothing was disclosed about those numerous lawsuits until August, 1996. Ford's explanation for its initial inaccurate response is its supposed belief that plaintiffs were asking only about lawsuits involving 1986 Tempos, a model and year which generated only a pair of lawsuits. That is nonsense, to put it bluntly. Plaintiffs' interrogatory asked for all lawsuits complaining about design or manufacturing defects in the front seats "of the 1986 Ford Tempo automobile, as well as for any other automobile employing the same or similar seat[s]" [emphasis added].

Applicable Law

The Court has authority to default Ford for its perverting of the discovery process. Common sense says so. So do the Michigan Court Rules, the case law, and the Michigan Revised Judicature Act. According to MCR 2.313(D)(1), a trial court "may order such sanctions as are just," including the "rendering [of] a judgment by default," MCR 2.313(B)(2)(c), against a party which fails to answer interrogatories. An order compelling discovery is not a prerequisite. LaCourse v Gupta, 181 Mich App 293, 296 (1989), lv app den 434 Mich 921 (1990). Since a blatantly deceptive answer is worse than no answer-the lack of an answer is not misleading-"it would be an absurd anomaly" if the authority to punish failing to answer interrogatories did not apply equally to giving deliberately false answers. Cummings v Wayne County, 210 Mich App 249, 251 (1995); and MCR 1.105. A trial judge "must have the discretion" to treat doing something inadequately or improperly as a failure to do it at all. Cf. Banaszewski v Colman, 131 Mich App 92, 95 (1983). In addition, the courts have, independent of court rules, "inherent authority to sanction misconduct." That authority "is rooted in a court's fundamental interest in protecting its own integrity and that of the judicial process." Cummings v Wayne County, supra, at 252. See also Bellok v Koths, 163 Mich App 780, 783 (1987), lv app den 430 Mich 854 (1988). Assigning to the trial courts "the front-line responsibility for the administration of justice" requires authorizing them to shoot back, so to speak, with the sanctions of dismissal or default. North v Department of Mental Health, 427 Mich 659, 661-662 (1986). The Legislature agrees. It has conferred "jurisdiction and power to make any order proper to fully effectuate the circuit court's jurisdiction and judgments." MCL 600.611; MSA 27A.611. In sum, this Court has authority to default Ford.

Admittedly, having authority to do something does not necessarily mean that it is proper in every instance to utilize that authority. Specifically with regard to the issue at hand, the sanction of a default "is a drastic measure and should be used with caution." Mink v Masters, 204 Mich App 242, 244 (1994). The court is to consider various things. Was there a "flagrant and wanton refusal to facilitate discovery[?]," Thorne v Bell, 206 Mich App 625, 633 (1994); and Mink v Masters, supra, or some other "inexcusable" conduct? Equico Lessors, Inc v Original Buscemi's Inc, 140 Mich App 532, 535 (1985). Did that conduct frustrate appropriate attempts to discover information vital to the proper development and presentation of the case, Bellok v Koths, supra, at 783, or did it otherwise prejudice the other party, e.g., by impairing a mediation presentation? Barlow v Crane-Houdaille, Inc., 191 Mich App 244, 252 (1991). Finally, after considering available alternatives, "[i]s the drastic sanction of default "just and proper within the context of the particular case[?]" Houston v Southwest Detroit Hospital, 166 Mich App 623, 629-630 (1987) lv app den 431 Mich 852 (1988); and Bellok v Koths, supra. The trial court need not necessarily impose lesser sanctions before ordering a dismissal or default. What the court must do is consider "whether the imposition of lesser sanctions would not better serve the interests of justice." North v Department of Mental Health, supra, at 662. If not, dismissing a misbehaving plaintiff's case or defaulting a misbehaving defendant is proper.

Applicable Law Applied

Ford's conduct in this case satisfies all of the criteria for the drastic sanction of a default. Concealing information and lying are, there can be no dispute, inexcusable behavior. Such conduct is more than an intentional refusal to facilitate discovery, which is sufficient to warrant entry of a default. Concealing information and lying is a flagrant and wanton refusal to facilitate discovery; nothing could be more obvious. That alone probably warrants a default. Because perjury is reprehensible, engaging in it, especially, engaging in a prolonged course of it, is so offensive to the maintenance of a sound judicial process that the severest punishment may be required regardless of the perjury's effect on the case. Cf., MCR 6.508(D)(3)(b)(iii), and People v Anderson (aft rem), 446 Mich 392, 405, 406 (1994). Whether that is so need also not be decided in this case, however because all of the criteria for entry of a default have been met.5

Ford's conduct has badly prejudiced plaintiffs and this Court. Plaintiffs' counsel has had to spend considerable effort and incur great expense acquiring from other sources information which Ford should have disclosed. More significantly, Ford's misconduct has frustrated plaintiffs in the development of information vital to a persuasive presentation of their claims. What Ford has belatedly revealed about its testing of the car seat at issue in this case, what it appears to have learned from those tests, the availability of a safer seat, and the fact that a safer seat was never used, all go directly to what a plaintiff must prove in a case like this one and what the Supreme Court expects to be disclosed during discovery. See Prentice v Yale Mfg Co, 421 Mich 670, 688-689 (1984). It is readily apparent from Ford's recent briefs that it has a favorable "spin" on that information. To enable plaintiffs to respond, discovery needs to start anew. Plaintiffs' experts need to start all over, and a tremendous amount of follow-up inquiries must be made of Ford and its pertinent personnel. That would put off trial until next year, which would be very unfair to plaintiffs.

Ford's misconduct has also harmed this Court and the public interest. "Aside from its advantage to a party in discovering the opponent's claim,...[discovery]...has a public purpose...arising from reducing the time of the trial by narrowing the issues, obtaining admissions of fact, fixing the claims of the parties when the incident is fresh in their minds, and otherwise fostering accuracy and celerity of trial, and also from inducing settlements, which are made more easy when the respective claims are known." Ewer v Dietrich, 346 Mich 535, 542-543 (1956). Because of what Ford did, those benefits are unavailable, unless discovery is reopened. More significantly, Ford's misconduct "constitutes an abuse of the judicial process itself and not just a matter of inequity between the parties... '[T]ampering with the administration of justice...is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society.'" Cummings v Wayne County, supra, at 252.

No lesser sanction is sufficient. To the extent Ford's dishonesty resulted in plaintiffs' counsel having to look elsewhere for the requested information, assessing against Ford the actual costs of those searches will offset that prejudice, assuming that what amounts to just a fine is ever a sufficient response to perjury. The other prejudice to plaintiffs' case cannot be so readily rectified, however. If a default is not entered, plaintiffs must be allowed to follow-up all of the data just disclosed, e.g., fully explore the Seatback Performance Task Force and the numerous tests conducted on seats. As previously noted, that means re-starting discovery and putting off next month's trial. However, the courts of Michigan are under orders to eliminate "the injustice of delayed justice" because "[n]o greater wrong hath man judicial wrought than that of overlooking, if not encouraging delays and more delays of justice." Hearn v Schendel, 335 Mich 648, 653 (1959).

This case is already three years old, and the price of additional delay will be paid by plaintiffs, not Ford. With the passage of more time, it will be harder for plaintiffs to prove their case. Witnesses will scatter even more, and memories will become even dimmer. One of Ford's excuses for the delays in scheduling depositions was the retirement and move of many employees. That will happen more as time passes. Witnesses who remain available will remember less, and what they remember will be subject to challenge because of age. Whatever the jury is told about the delay, experience teaches that delay itself creates doubts in the minds of jurors. As a case ages, it becomes less persuasive. Since the burden of proof is on plaintiffs, they will feel the consequences of age. For that reason, even ordering Ford to pay all the costs of discovery henceforward, will not offset the prejudice to plaintiffs, but punish them, a real perversion. Ford's misconduct having impaired plaintiffs' ability to prove liability, even if reimbursed all their expenses, plaintiffs will remain significantly disadvantaged with Ford still benefitting. That is ineffectual, to say the least, in dealing with what Ford did. Furthermore, a default[ ]is very appropriate because it focuses directly on that which Ford has damaged: plaintiff's ability to prove liability.

In sum this is a case in which the drastic sanction of a default is just and proper. This is, in fact, a case in which anything less than that sanction would be improper. Numerous times, our Court of Appeals has sustained a trial court's defaulting a defendant or dismissing a plaintiff's case, which is the equivalent of a default, because of that party's wanton and flagrant violation of its discovery obligations. In Mink v Masters, supra; and Chrysler Corp v Home Ins Co, 213 Mich App 610, 612 (1995), the Court of Appeals affirmed defaults as a discovery sanction. Dismissals as a sanction were affirmed in Barlow v Crane-Houdaille, Inc., supra,; Welch v J. Walter Thompson, USA, Inc., 187 Mich App 49 (1991), lv app den 439 Mich 852 (1991); LaCourse v Gupta, supra; Enci v Jackson, 173 Mich App 30 (1988); Bellok v Koths, supra; and Edge v Ramos, 160 Mich App 231 (1987), lv app den 428 Mich 907 (1987). The misconduct in this case being far worse, a comparable penalty is certainly within the discretion of this Court.

Defaulting Ford does not deprive it of its right to a jury assessment of its liability. Cf., Enci v Jackson, supra, at 35. The right in civil cases to a trial by jury is not absolute. That right can be lost by not asking soon enough or by not timely paying the required fee. MCR 2.508 (D)(1). A jury trial can also be lost by waiting too long to answer, MCR 2.603(A)(1), or by not complying with some applicable court rule or a pertinent court order. MCR 2.504(B)(1). Finally, a litigant with a legally inadequate case is not entitled to a jury determination, but must be satisfied with a judge's ruling. MCR 2.116(I)(1). See also Skinner v Square D Co, 445 Mich 153, 174-175 (1994); and Moll v Abbott Laboratories, 444 Mich 1, 26-28 (1993). In other words, not only can the right to a trial by jury be waived by litigants, that right can be lost by inappropriate conduct during the course of a case awaiting trial. That is what has happened in this case. This Court is not taking from Ford a jury trial to which it is entitled. Ford forfeited that trial by its conduct.

One final point needs to be addressed. Ford contends, quite vigorously, that this Court is effectively estopped from now defaulting it because the Court ruled back in July that it would default Ford if it did not disclose the information which it had belatedly disclosed. This Court disagrees just as vigorously. Ford is not being defaulted because it did not obey this Court's order in July. Ford is being defaulted because the information recently disclosed reveals that, prior to that order ever being entered, Ford had engaged in a calculated campaign of concealment and deceit. This Court cannot possibly be barred from appropriately reacting to that shameful campaign because it was discovered only when this Court insisted that Ford obey the rules.

Conclusion

"A primary purpose of discovery is to enhance the reliability of the fact-finding process by eliminating distortions attributable to gamesmanship." People v Burwick, 450 Mich 281, 298 (1995). Necessarily, therefore, the courts must insist that discovery be conducted in a way which "promote[s] the discovery of the true facts and circumstances of a controversy, rather than aid in their concealment." Hallett v Michigan Consolidated Gas Co, 298 Mich 582, 592 (1941); and Ewer v Dietrich, supra, at 542. Because condoning the deliberate frustration of discovery will conceal information and promote gamesmanship, such misconduct must be penalized swiftly and sternly. Justice is not served by anything less. LaCourse v Gupta, supra.

____________________________________

[Footnotes to trial court's opinion:]

1It is unfortunate that there are so many published cases which have dealt with obstructionism during discovery. The prevalence of it reinforces why it must be sternly punished. Otherwise, the inclination to it will not be deterred.

2 To simplify the upcoming trial of this case, plaintiffs have agreed to dismiss the babyseat's manufacturer.

3 Courts must often form opinions as to the merits of matters before them, "often, as to the bona fides of the parties." People v Houston, 179 Mich App 753, 759-760 (1989) lv app den 434 Mich 855 (1990). "If the judge did not form judgments of the actors in those courthouse dramas called trials, he could never render decisions." Liteky v United States, 510 US ___; 114 S Ct 1147, 1155; 128 L Ed 2d 474 (1994).

4 The parties were informed in October, 1996, by letter of the Court's decision. Drafting and re-drafting an opinion was going to take time. The Court wanted the parties to know its decision as soon as possible so they could meaningfully prepare for mediation, settlement negotiations, and trial. The parties' counsel were told at oral argument that they would promptly be informed of the Court's decision, but that an opinion would be delayed. The Court apologizes for how long it has taken to issue this opinion. It has been in trial consistently since mid-October.

5 Unnecessary decisions are inappropriate because the risk of error is too great. Unnecessary decisions are often incorrect because they are made without the crucial focus provided by knowing that they will actually make a difference in a case. Cohen v Virginia, 6 Wheat 264, 299; 5 L Ed 257, 290 (1821), quoted in Breckon v Franklin Fuel Co, 383 Mich 261, 267 (1970); and Alar v Mercy Memorial Hospital, 208 Mich App 518, 532 (1995). In judging, as in many things, it is, to paraphrase Samuel Johnson, only the imminence of a hanging which can adequately concentrate the mind. Boswell, Life of Johnson [September 1, 1777]. A striking example of why courts should not make unnecessary decisions is United States v Williams, 872 F2d 773 (6th Cir, 1989). Prior to that case, dozens of published opinions had volunteered that a certain factual scenario, a scenario not involved in any of those cases, would call for a certain outcome. In Williams, the Sixth Circuit was actually confronted with that other scenario. When it was, the law so often previously espoused was revealed to be wrong. See Staples v United States, 511 US 600; 114 S Ct 1793, 1813, fn 22; 128 L Ed 2d 608 (1994).

Originally posted at InjuryBoard by Tim Smith

Countrywide Financial Admits to Fabricating Evidence

Tim Smith — Fri, 25 Jan 2008 10:53:44 GMT

In a bankruptcy case pending in Federal Court in western Pennsylvania, Countrywide Financial Corporation admitted that it had fabricated or as they say "recreated" documents as part of their case. This comes at a time when Countrywide is confronting escalating complaints from borrowers who allege that Countrywide forced them into risky loans.

The documents which were faked by Countrywide are three letters that they never sent to the homeowner which claims that the homeowner owed an additional $4,700.00 to Countrywide because of certain discrepancies in deductions made to their escrow account.

The bankruptcy judge, Judge Agresti, asked the attorney for Countrywide why it would go to the trouble of creating a letter that they in-fact had never sent, it's lawyer responded "I do not know".

What is even more disturbing is that the family who obtained a mortgage from Countrywide had filed for Chapter 13 Bankruptcy protection and made all of their payments so as to bring the mortgage current. Yet after they brought the mortgage current, Countrywide created the document and attempted to secure an additional $4,700.00 from them. If their attorney hadn't been on top of the file, Countrywide might have gotten away with this scam. Fortunately for the family, their attorney caught Countrywide red-handed.

Originally posted at InjuryBoard by Tim Smith

U.S. Insurance Companies Profit From Overpricing and Underpaying

Tim Smith — Mon, 21 Jan 2008 13:52:36 GMT

The Consumer Federation of America recently reported that the U.S. property/casualty insurance industry systematically overcharges policy holders and underpays on claims. Robert Hunter, the Consumer Federation's Director of Insurance, reported at a news conference that the reason why insurance companies nationwide have secured record high profits is due to the fact that they have been systematically overcharging their customers, excluding coverage, low-balling claims, and ultimately laying the tab in the laps of the tax payers for the risks the insurers contracted to cover

In April 2007, the Insurance Information Institute reported that property casualty insurers in the United States posted 63.7 billion dollars in profits in 2006. This was the highest profit posted in the United States in the last 19 years.

Robert Hunter, who was formally the State Insurance Commissioner for the State of Texas, certainly has the background and work experience to comment on these issues.

For those of us that are regularly paying our premiums only to find out when it comes time to make a claim that there is some reason or excuse for avoiding the claim, this information probably comes as no surprise.

Originally posted at InjuryBoard by Tim Smith

Senator Kuipers Protecting Drug Company Donors

Tim Smith — Thu, 13 Dec 2007 09:34:52 GMT

Merck, the makers of Vioxx, got caught defrauding the FDA and the folks that they injured with their drug and agreed to pay $4.85 billion dollars in damages. But, none of the victims in Michigan will get paid a penny because we're the only state in the country that provides blanket immunity to drug manufacturors whose products injure or kill. This legislative immunity was enacted in 1995 and our House of Representatives recognized the danger to Michigan citizens and passed a bill to correct this problem in February of this year. The problem is that when it was passed to the Senate for approval, Senator Kuipers and others like him made sure the solution to the problem never sees the light of day. He is already on the record saying he will not let the fix proposed by the House of Representatives get a vote.

His reasoning? "It's approved by the FDA", states Kuipers....... What he didn't tell Michigan Radio News listeners on 12/11/07 is that Merck didn't disclose to the FDA when they applied for approval that their own trials killed at least 3 people and injured a number of others. Kuipers knows that Merck obtained FDA approval by fraud and the fact that he is keeping this information from Michigan News Radio listeners is even more fraudulent.

If they had "FDA approval", as stated by Kuipers, why did Merck have to enter into a settlement totalling nearly Five Billion Dollars? Because they knew their product damaged the heart and cardio system of those that took Vioxx, but they put profits ahead of people and hid this information from the FDA and buried the informationfrom the people who took it..... the same way Senator Kuipers has buried the legislative fix to the drug immunity problem that is keeping his constituents and Michigans citizens from being compensated for the damages intentionally caused by Merck.

I don't know what is more reprehensible, Kuipers protecting his large corporate donors by burying legislation that they don't want passed or Merck protecting it's profits by burying scientific information that Vioxx was dangerous.

Dr. Eric J. Topol, director of the Scripps Translational Science Institute in La Jolla, Calif., and Scripps' chief academic officer, was one of the experts who first exposed the problems with Vioxx. He said he doesn't have a problem with cox-2 inhibitors, but he does take issue with Merck's response to emerging data about heart risks.
Topol claims Merck hid evidence about the risk for heart attack associated with Vioxx. "This whole field wouldn't be in the state it's in had it not been for the problems that occurred early on with Vioxx," he said. "They wouldn't have had to make a settlement if they hadn't concealed things."

Even the New England Journal of Medicine, one of the most respected medical journals in the country, recognized the dangers of Vioxx and the cover-up by Merck. As early as 2005, this Journal accused Merck of burying critical heart risk data which had shown up in one of the very first drug trials that Merck performed when they were evaluating whether or not it was safe for the public. The editors of the Medical Journal presented clear evidence that Vioxx was aware of the fact that there were 3 heart attacks in the drug trial which they failed to report. They buried this information because their drug probably wouldn't sell very well if folks like you and me knew it caused heart attacks. The buried it just like Senator Kuipers and the Michigan Senate have buried the key to allowing Michigan citizens and families to hold Merck accountable for their actions in injuring and killing Michigan citizens.

Why would Senator Kuipers do this? It's called "show me the money". Check out his donor lists. See how much money different corporate interests and special interest groups have dumped into his campaign coffers. The Michigan Insurance Federation, the GlaxoSmithKline PAC [drug companies], Pfizer Michigan PAC [more drug companies], Medco Health PAC [the PAC to a $43 Billion dollar/year pharmacy group], the Pharmacy ActionCouncil, and other drug company or drug company supporter donors have donated HUGE sums of money to Senator Kuipers campaign coffers. He owes these folks for their financial support and it's payback time.

Why would I write about this? I am an attorney. I specialize in trials. I don't handle cases involving drug companies. I have no financial interest in whether drug companies continue to exploit drug immunity in this state or don't. Hell, I'm a Republican and have voted that way in every election I've cast a vote in. But, when I see members of my political party, or anyone in a position of power exploiting their legal powers, I have a duty, as an officer of the court to do something about it. Educating people who might not know how bad Senator Kuipers and the other Senators are screwing Michigan citizens at the expense of the little guy like you and me is one way to combat this legislative abuse.

If this upsets you too, contact Senator Kuipers and let him know. Here's how to get ahold of Wayne.

If Wayne isn't your Senator, here's how to find out who is. Contact your Senator and let them know how you feel. Especially when it comes time to vote next time around.......

Originally posted at InjuryBoard by Tim Smith

Supreme Court's Latest Victim

Tim Smith — Sun, 25 Nov 2007 19:17:24 GMT

Less than a week after the Michigan Supreme Court victimized Carolyn Jones [see below], Justice Cliff Taylor and his fellow Justices Young, Markman and Corrigan are at it again. On the day before Thanksgiving, they threw out the case of Michele Kaseta despite the fact that her trial Judge in Macomb County Circuit Court and the Michigan Court of Appeals both held that her case had merit and she had a right to her day in court. Why would the Michigan Supreme Court throw Ms. Kaseta's case out when every other Judge in the state that reviewed her case agreed that she had a viable claim? Read on to find out.....

This case involves a woman who slipped and fell and was injured so we are dealing with Michigan's premise liability laws. To understand how twisted our Supreme Court's thinking is as they threw out this case, you need a little background on what the law is here in Michigan.

Michigan, like many states, has required landowners to exercise reasonable care to protect people that they have invited to their property. Landowners are required to protect these invitees from an "unreasonable risk of harm caused by a dangerous condition on the land". This seems like common sense. If you have a dangerous condition on your property, you have a duty to let others know about it or take steps to make sure that folks that visit won't be hurt by this condition.

Michigan has also recognized that landowners do not have a duty to protect or warn invitees from dangers that are "open and obvious". This seems like common sense too. If I have a big pit in the middle of the sidewalk leading up to my home or a downed electrical wire across that same path, I don't have a duty to warn or protect visitors because anyone can see that there is a big pit there or a downed electrical wire and if you step into the pit or onto the wire, you're going to get hurt.

Unfortunately, Justices Taylor, Young, Corrigan and Markman have taken this age old law and twisted it to the point that none of us who practice law can recognize what has become of premise liability law here in Michigan. They have twisted it to the point where they even threw out a case brought by a blind man who claimed there was a dangerous condition on a landowner's property, but Cliff and his fellow Justices said that the condition was "open and obvious" and he should have seen it.........

I'm serious. I couldn't make up stuff this twisted if I tried.

In the present case, Ms. Kaseta was a realtor who was invited by a landowner to come to their home to sign some papers to purchase a piece of property. As she was leaving the house she slipped in the driveway and fell on "black ice". For years, our courts have held that black ice can't be open and obvious, because it is ice that isn't readily visible. It's ice you can't really see until you step on it or drive over it and then it's too late. It's a patch of ice that by it's very nature blends right into the surface on which it lays, hidden from view.

The insurance company for the defendant directed it's attorney to file a motion with the trial court asking it to dismiss the while case. The Macomb County Circuit Court judge denied the motion in what the Michigan Court of Appeals called a "well-reasoned" legal opinion. The Court of Appeals, who upheld the trial court ruling, quoted from the trial court and stated:

Plaintiff testified that when she was walking down defendants' driveway, she did not notice any ice because it was dark, and defendants did not have their front porch light on. 1 Plaintiff testified that she felt the ice with her hand after she fell, and still could not see it due to the darkness. Plaintiff also testified that she did not notice any salt on the driveway despite defendants' testimony that they shoveled and salted the driveway prior to plaintiff's fall several times, and the driveway appeared to be just cement.
The court is satisfied that plaintiff has established a question of fact whether the ice that caused her fall constituted . . . an open and obvious condition. Plaintiff's testimony indicates that the ice was essentially unnoticeable due to the time of day and lack of lighting. Plaintiff has also submitted an affidavit that attests to the fact that defendants failed to warn her of the potential hazard, contrary to defendants' testimony otherwise. . . . [P]laintiff testified that although there was snow on the street [*5] and on the lawn, defendants' driveway was clear. Therefore, plaintiff did not have any reason to believe that the driveway would be slippery since it was clear of snow, and also that it appeared to be cement. Defendants' reliance upon cases holding that a snow-covered surface presents an open and obvious danger because of the high probability that it may be slippery is therefore misplaced based upon the distinguishing facts of the case at hand. Taking the facts in the light most favorable to plaintiff, the testimony and evidence presented is insufficient to demonstrate that an average person would have discovered the ice upon casual inspection. Consequently, defendants' motion for summary disposition based upon the open and obvious doctrine should be denied.

The insurance company for the defendant didn't like the ruling of the trial judge, didn't like the ruling of the court of appeals and so they appealed it one more time to the Michigan Supreme Court who promptly reversed both lower courts and threw the case out.

It's becoming a joke the way Justices Taylor, Corrigan, Markman and Young are taking care of those who took care of them during the last election. The big donors to the campaigns of these Justices are reaping the rewards of money well spent. Insurance companies and large corporations like DaimlerChrysler donated 100's of thousands of dollars to these Justices million dollar campaigns and its paying dividends. Check out just one of the many conflicts of interest that have blossomed at the Supreme Court in my last blog entry. This one is no different.

So despite slipping and falling due to a condition she can't see, despite the condition being neither open nor obvious, despite the trial judge agreeing with Ms. Kaseta and the Michigan Court of Appeals agreeing with the trial court, Justice Taylor and the others once again deny a woman her day in court.

Remember Michele Kaseta next November when Justice Taylor's seat is up for election. Remember that you have a power greater than those who wrote the big checks to Cliff's last campaign and who will write the big checks in the upcoming campaign. You have the right to vote.

I don't know who is going to run against Cliff in 2008, but take a long hard look at the candidate and remember what Cliff has done to twist Michigan's legal system to the benefit of large corporate donors and insurance companies. Cast a vote against Cliff and deny him his next term in court the same way he denied Ms. Kaseta her day in court.

For more information on this subject, please refer to the section on Premises Liability / Slip & Fall.

Originally posted at InjuryBoard by Tim Smith