Michigan Supreme Court to hold off on hearing cases

The Michigan Supreme Court is adjourning its December docket, and will hear oral arguments in January 2011 instead.

On the list of cases scheduled for December arguments before the Court is a dispute between Acme Township and Meijer Inc. over campaign finance activities.


Attorney fees awarded in TheraMatrix lawsuit against Blues

There’s been another development in Pontiac-based TheraMatrix winning a $4.5 million lawsuit against Blue Cross Blue Shield of Michigan for breach of contract and tortious interference with economic and business relationships (“Their (Blue) Cross to bear,” Aug. 23, 2010).

Oakland County Circuit Court Judge Edward Avadenka awarded case evaluation sanctions, including attorney fees, against Blue Cross on Nov. 15.

But the way he came up the $625-per-hour rate is interesting.

According to Sara K. MacWilliams and Rodger D. Young, counsel for TheraMatrix:

[Avadenka] explained that the case was “most contentious” and that trial “was like a fencing match — thrust and parry by both sides, endlessly,” and therefore, substantial attorney hours were properly included in the fee award.

But, they continued:

Judge Avadenka’s opinion is of special note, because it examined what the proper source of evidence is to determine attorney fees in a Southeastern Michigan commercial litigation. Courts determining fee awards sometimes rely on the 2007 State Bar Survey of attorney rates.

However, as Michigan Lawyers Weekly recently reported, the survey is actually poor evidence of fees, both because it is now outdated, and because the survey has a very low response rate. Judge Avadenka recognized this, writing that the 2007 State Bar Survey is not “indicative of the true hourly rate in Southeastern Michigan for the attorneys who actually tried this case. There are over 35,000 attorneys in the State of Michigan, and the 2007 State Bar Survey reflects a questionnaire return rate of only 20-30 percent.”

Judge Avadenka, through his research, determined a more reasonable alternative, writing, “A truer representation of a reasonably hourly rate for the attorneys involved in the instant case is set forth in the National Law Survey (2008), which lists various rates by firm.”

Judge Avadenka also relied on “the Michigan Benchmark” as another source of evidence for determining fee awards. Using this evidence, Judge Avadenka set a reasonable billing rate of plaintiff’s lead counsel, Rodger Young, at $625 per hour during the applicable period, and adjusted at least one attorney’s billing rate up.

Judge Avadenka’s Nov. 15, 2010, Order and Opinion, which carefully sets forth the Smith v. Khouri guidelines for setting attorney fee awards, may prove to offer useful guidance for attorneys involved in fee award disputes, including fees owed under MCR 2.403.

As we wrote last week, a USA Today story that also appears in the Detroit Free Press (both papers are owned by Gannett) also covered the TheraMatrix case. The Freep also published a story that talks about a recently filed U.S. Justice Department lawsuit against the Blues.

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Warren parent sues school district over slavery assignment

The father of a Warren Consolidated Schools student is suing the district alleging racial discrimination because of a teacher read aloud from a book about slavery. [The Macomb Daily].

Jamey Petree, representing Jala Petree, says that excerpts from “From Slave Ship to Freedom Road” were read last January by Jala’s fifth-grade teacher at Margaret Black Elementary School in Sterling Heights.

Two excerpts each two paragraphs long that were read include N-word references and compares African-Americans’ skin color to “Satan’s thoughts” and night darkness. The excerpts talk about the buying and selling of slaves.

Petree is suing under the Elliot Larson Act and for intentional infliction of emotional distress.

The book is widely used in schools to teach students “to come to terms with slavery’s legacy.” From Scholastic, a company that supplies books to schools:

An innovative picture book for older children, this unique collaboration addresses the history of slavery, while demanding the attention and interaction of readers of all races. Julius Lester, whose To Be a Slave was a Newbery Honor Book, uses eloquent text to interpret 24 of Rod Brown’s magnificent paintings — part of a series of 36 that the artist created over seven years. Together, images and words reenact the 250-year journey from the first slave ships taking Africans forcibly from their homes, to the Civil War and emancipation. Aching with emotion — occasionally hope, but predominantly pain, fear, and anger — Brown’s paintings depict such difficult truths as whippings and lynchings, the bodies of Africans floating near slave ships in the ocean, an angry slave tending white children, attempted escapes, and eventually, the final, joyful road to freedom . . . and a new uncertainty. Lester gives identities to the faces in the pictures, a reminder that even those people whose names have been lost to history were very real individuals whose lives were taken from them — both literally and figuratively.

What makes this book such a valuable learning tool, however, and such a unique response to a common subject of study, is Lester’s inclusion of personal commentary, direct questions and "imagination exercises" in his text. These exercises encourage African Americans to examine their own feelings about being descended from slaves, provide Caucasian students with an insight into the African-American experience, and challenge students of all backgrounds to understand what it was in human nature that allowed the terrible institution of slavery to survive for so long. From Slave Ship to Freedom Road insists that students think about history, rather than simply learn the facts.

Michigan Blues lawsuit gets national attention

Three months ago, we reported on Pontiac-based TheraMatrix winning a $4.5 million lawsuit against Blue Cross Blue Shield of Michigan for breach of contract and tortious interference with economic and business relationships (“Their (Blue) Cross to bear,” Aug. 23, 2010).

Now, this matter is getting national attention, thanks to a USA Today story that also appears in the Detroit Free Press (both papers are owned by Gannett). The Freep also published a story that talks about a recently filed U.S. Justice Department lawsuit against the Blues.

Here’s an excerpt:

As health care costs soared nationally, a small Michigan firm gave Ford Motor Co. a proposal to cut its physical therapy costs. The automaker signed up for an in-state pilot program, which was so successful Ford expanded it last year to cover about 390,000 employees, retirees and their families nationwide.

Yet the cost-saving program created by Pontiac-based TheraMatrix has come under attack from Blue Cross Blue Shield of Michigan.

Court records allege Blue Cross used its position as the state’s dominant insurer to try to crush TheraMatrix as it worked to also sign up Chrysler and General Motors.

A USA Todayreview of hundreds of pages of e-mails and internal documents that are part of a lawsuit TheraMatrix filed against Blue Cross indicates that TheraMatrix’s efforts to carve out a niche market in managing outpatient physical therapy costs was seen as a threat by officials at Blue Cross and by some Michigan hospitals. …

The dispute provides a window into some of the factors that make overhauling the nation’s health care system so difficult. The aggressive tactics employed against TheraMatrix raise questions about whether relationships between hospitals and insurers are inflating medical prices and stifling competition needed to control costs.

Court records depict Blue Cross — a nonprofit created under Michigan law to provide affordable health care — as working with a major hospital to stop expansion of TheraMatrix’s program. They also reveal that Blue Cross barred TheraMatrix from the insurer’s medical provider network, which covers most Michigan patients.

A Detroit-area jury awarded TheraMatrix $4.5 million in July, finding that Blue Cross breached an agreement with TheraMatrix to process claims for its Ford program, then wrongfully interfered with TheraMatrix’s efforts to launch a Chrysler program. Blue Cross has appealed.

Last month, the U.S. Justice Department sued Michigan’s Blue Cross, accusing the insurer of a different kind of anticompetitive behavior: paying hospitals higher prices for medical care in exchange for a promise they would charge competing insurers as much as 40% more than they charge Blue Cross. Blue Cross says the suit is without merit. …

Effective antitrust regulation is critical to lowering health care costs, Christine Varney, the assistant attorney general who heads the Justice Department’s antitrust division, told lawyers at a health care conference in May. “The goals of health care reform cannot be achieved,” she said, “if dominant insurers use exclusionary practices to blockade entry or expansion by alternative insurers.”

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Wayne probate judge receives national award

From the Michigan Probate Judges Association comes word that Wayne County Probate Court Chief Judge Milton L. Mack, Jr. is the 2010 recipient of the National College of Probate Judges’ Treat Award for Excellence.

Mack is the first Michigan judge to receive the award, which was presented yesterday at the National College of Probate Judges’ annual meeting.

From the MPJA:

Judge Susan L. Dobrich, Chief Judge of Cass County Probate Court, and Hon. Patrick J. McGraw, Chief Judge of Saginaw County Probate Court, took the lead in nominating Mack for the Treat Award. They were supported by numerous probate judges and others who praised Mack for his efforts to reform Michigan’s mental health system.

“Judge Mack has made countless contributions to the improvement of the administration of justice,” Dobrich and McGraw wrote.

“Judge Mack has been unyielding in finding humane and alternative solutions for the mentally ill.”

Dobrich is president of the Michigan Probate Judges Association; McGraw is chair of the MPJA’s Governance Committee.

Mack, who has served as a probate judge for 20 years, has advocated changing the standard for courts to order involuntary treatment of mental illness, in order to promote early treatment and reduce crime related to mental illness.

He has proposed changes to the Michigan Mental Health Code to improve access to services for the mentally ill. In April 2010, Chief Justice Marilyn Kelly of the Michigan Supreme Court highlighted Mack’s efforts in her “State of the Judiciary” address before the Legislature.

Mack has written articles on mental health reform, guardianship, and mediation, including “Involuntary Treatment for the 21st Century”, which was published in the Quinnipiac Law Journal. A frequent lecturer on mental health issues, Mack was a featured speaker at the 2009 Spring Conference of the National College of Probate Judges.

Established in 1978, the Treat Award is presented annually to one who has made “a significant contribution to the improvement of the law or judicial administration in probate or related fields.”

The award is named in honor of Judge William W. Treat, founder and President Emeritus of the National College of Probate Judges. Previous recipients include U.S. Supreme Court Justice Sandra Day O’Connor, Professor James Casner of Harvard Law School, and other prominent legal scholars.

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Judicial gems

No matter how you voted in the Michigan Supreme Court election last week, it’s hard to say we won’t all miss gems like the one that Justice Alton T. Davis bestowed on us at oral arguments last week.

He told one of the litigants that her argument was like “meringue on a pie. It looks nice, but there’s not much there.”


Another favorite from this session was when he suggested during a discussion about whether or not law school students ought to be allowed to present oral arguments at the Michigan Court of Appeals. He suggested that it’s important to remember the court is not considering allowing random people to just walk in off the street to argue at the Court of Appeals.

In a setting where common sense doesn’t always intersect with the law, it’s nice from time to time to be jolted back from the ether to the real world.

Andrew Shirvell fired from AG’s office.

Our national state nightmare is over. OK, so that overstates it a little (or a lot). From the AP:

LANSING, Mich. (AP) — A lawyer for an assistant state attorney general accused of harassing the gay student assembly president at the University of Michigan has been fired.

Philip Thomas says Andrew Shirvell was fired Monday.

Shirvell was at a disciplinary hearing Monday at the Michigan attorney general’s office related to the issue.

The attorney general’s office is declining immediate comment.

Shirvell went on a leave about a month ago after national criticism erupted over a blog he wrote characterizing student leader Chris Armstrong as a "racist" and "liar" who promoted a "radical homosexual agenda."

Thomas has said Shirvell’s actions were constitutionally protected as free speech.

No idea what we’re talking about? Here’s our original post, then the time he showed up on Anderson Cooper, when Mike Cox said he wouldn’t be fired, and when he inexplicably showed up on “The Daily Show” thinking it was a serious interview.