Will conservatives resolve to make government leaner and meaner in 2012?

Lansing Republicans are toasting the close of what was certainly a banner year for them. Lawmakers were able to blast through a wish list that had eluded them for years.

They’re high-fiving each other for having made reforms to local and municipal revenue sharing, business tax cuts, reforming K-12 education and teacher tenure, cutting the number of weeks the unemployed can collect benefits and limiting the number of months families can receive public assistance. They’ve made what some call Draconian changes to the state’s Workers’ Compensation system, and passed legislation to tax pensions.

It was a long list of pent-up wishes conservatives had wanted for years — even decades. What in the world is left for them to do?

Well, the conservative Mackinac Center’s “Michigan Capital Confidential” newsletter has a few ideas.

In today’s edition, the Center ticks off the items still left undone. Many of the initiatives have enough steam to be reintroduced next year. Among them: the repeal of prevailing wage laws, and what the Center calls “stealth unionization.” The “right to teach” bill was also tabled. It would have stopped school districts from making agreements with the Michigan Education Association to require union membership as a condition of employment. The Center suggests that while there was some support for the ideology, the bill was a poorly written attempt at political payback, and may not have enough legs to be re-introduced in 2012.

Certainly for the upcoming year, workers and employers alike will be waiting to see whose resolutions stick, and whose fall by the wayside like a “forgotten by April” gym membership.

The eight craziest lawsuits of 2011: Yes, one’s in Michigan

The Week magazine recently rounded up eight lawsuits from 2011 that made legal and non-legal folk alike do a double-take.

One of them, which was mentioned in our blog, concerns Novi resident Sarah Deming, who claims she was misled by the movie trailer for the freaky Ryan Gosling drama “Drive.” In her words, it “bore very little similarity to a chase, or race action film … having very little driving.”

(On a sidenote, with all the retreads, remakes and reboots in Hollywood these days, doesn’t it make you wonder whether “Smokey and the Bandit” is due for an update?)

The others on the list are just as good/bad:

• A fugitive sued the Kansas couple he held hostage in their home because they breached their “oral contract” to stay put. (They escaped as he slept.)

• An ex-Target manager claimed he was fired for working during his lunch break, because he was “often interrupted by requests from customers and supervisors.” (You’d think maybe that would be an asset, especially on Black Friday.)

• A groom hated the photos of his 2003 wedding so much that he demanded the photographers pay $48,000 to recreate the entire wedding, and have it shot by a new photographer. (Someone else would have had to portray the wife, though, as the plaintiff has since divorced.)

With suits like this, we can’t wait for what’s to come in 2012. Right?

NLRB holds off on implementing worker rights poster requirement

Did you hear that? That’s the collective sigh of relief from employers who have been sweating the upcoming deadline to implement a National Labor Relations rule that would have required them to post what they see as a very pro-union notice in every workplace.

The NLRB agreed last week to postpone the effective date of the employee rights notice posting after a federal court in Washington, D.C., requested that the board hold off until after a hearing of a legal challenge of the rule.

The new implementation date is April 30, 2012, which will allow time to resolve legal challenges.

On the implementation date, most private sector employers will be required to post an 11-by-17-inch notice. See the notice here. It is available at no cost from the NLRB through its website, www.nlrb.gov.

The giving season: CBA donates $10K+ to state charities

News of good cheer comes our way from Caralyce M. Lassner, who serves on the Board of Directors of the Consumer Bankruptcy Association.

Lassner, recently honored as a Michigan Lawyers Weekly Up and Coming Lawyer, says it’s been a good year for the CBA in terms of revenue from continuing education programs.

In keeping with the CBA’s annual tradition, some of that revenue, more than $10,000, has been donated to local charities.

The charities, as nominated by the membership and voted on by the CBA Board of Directors, include:

• The Heat and Warmth Fund (THAW)
• Forgotten Harvest
• Children’s Hospital
• S.A.Y. Detroit Family Health Clinic
• Cabrini Clinic
• Starfish Family Services
• Wounded Warriors
• Access to Bankruptcy Court
• Legal Services of South Central Michigan

The Consumer Bankruptcy Association is a voluntary bar association open to legal professionals working in the bankruptcy field in the Eastern District of Michigan.

MSC remands case on issue of foreseeable of rare drug side effect

In May 2010, the Michigan Court of Appeals ruled that a rare side effect of an anticonvulsant drug was foreseeable for the purposes of a medical malpractice action. The side effect, called Stevens-Johnson syndrome, wound up causing the patient’s death eight days later.

The appeals court upheld the trial court’s determination, stating “the issue is not whether defendants should have foreseen that Jamar would develop this syndrome, but rather whether they should have foreseen the possibility that as a result of taking the medication, Jamar, like any other patient being prescribed the medication, bore a risk of developing the syndrome.”

The court continued, “The evidence shows that [Tegretol] contained warnings that Stevens-Johnson syndrome may result. Thus it was foreseeable that the prescribing of [Tegretol] created a risk, albeit a small one, that Jamar could contract Stevens-Johnson syndrome.”

The court said the unlikelihood of developing the disease does not diminish that it was the proximate cause of the disease, comparing it to the foreseeability of speeding causing an auto accident.

“We are unfamiliar with any body of law that would allow a defendant to argue, let alone a jury to find, that because there are thousands of incidents of speeding that do not result in an auto accident, for each one that does, a defendant’s excessive speed in a given case cannot be considered a proximate cause of the given crash,” the court wrote.

Judge Joel Hoekstra dissented, arguing it should have been a jury question.

In a 4-3 order, the Michigan Supreme Court agreed, reversing the decision and remanding it back to the trial court.

The lower courts erred by granting partial summary disposition to plaintiffs on the issue of proximate causation here. The lower courts presumed that because the development of Stevens-Johnson Syndrome is a known risk of prescribing tegretol, proximate causation is per se established. After presuming that plaintiff could prove negligence, the lower court “collapse[d]” factual and proximate causation such that the two were “essentially indistinguishable,” Jones v Detroit Medical Ctr, 288 Mich App 466, 481 (2010), contrary to traditional standards for determining proximate causation. For a plaintiff to prevail on proximate cause at the summary disposition stage, it must be shown that reasonable minds cannot differ that injury was a foreseeable, natural, and probable consequence of the defendant’s negligence. Here, viewing the evidence in the light most favorable to defendants, there is a question of fact in this regard that should be submitted to the trier of fact rather than decided as a matter of law.

All three Democratic justices dissented. Justice Diane M. Hathaway argued the case was properly decided in the Court of Appeals.

MSC appoints two to civil jury instruction committee

The Michigan Supreme Court appointed three attorneys to the Committee on Model Civil Jury Instructions. They are Hillsdale Circuit Court Judge Michael R. Smith and Grand Blanc attorney Thomas W. Waun of Waun & Parillo PLLC

Smith will replace Wayne Circuit Judge Brian R. Sullivan, while Waun will replace Church Wyble PC attorney David S. Mittleman on the committee.

‘Alighting’ ends with both feet on the ground, MSC says

A plaintiff can’t collect personal protection benefits from her no-fault insurer for an injury she suffered from a slip-and-fall while getting out of her car, the Michigan Supreme Court ruled on Thursday. The court reversed a jury verdict in the plaintiff’s favor.

The decision in Frazier v. Allstate Insurance Co. puts a limitation on just how far the phrase “arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle” can be interpreted. Mona Lisa Frazier sued her auto insurer for first-party benefits to cover treatment of an injury she suffered when she stepped on a patch of ice while closing her car door after exiting the vehicle.

At issue was whether she suffered the injury while “alighting” (also known as “exiting”) the vehicle. Signed by the four Republican justices only, the memorandum opinion states that Frazier wasn’t alighting the vehicle when she fell because she had essentially completed the process of exiting the car when both feet were on the ground.

Moreover, that the injury must be sustained “while” alighting indicates that “alighting” does not occur in a single moment but occurs as the result of a process. The process begins when a person initiates the descent from a vehicle and is completed when an individual has effectively “descend[ed] from a vehicle” and has “come to rest”—when one has successfully transferred full control of one’s movement from reliance upon the vehicle to one’s body. This is typically accomplished when “both feet are planted firmly on the ground.” [citiation removed]

Based on the foregoing analysis, plaintiff is not entitled to benefits under the no–fault act because her injury did not arise out of the use of a parked vehicle under MCL 500.3106(1). Plaintiff was injured when she slipped and fell on a patch of ice while closing the passenger door of her vehicle. Plaintiff had placed a few personal items in the passenger compartment via the passenger door, stood up, and stepped out of the way of the door when she closed the door and fell. Insofar as she was in contact with the door of the vehicle at the time of her injury, she was clearly in contact with the vehicle itself, not with “equipment” mounted thereon. Therefore, her injury was not “a direct result of physical contact with equipment permanently mounted on the vehicle . . . .” MCL 500.3106(1)(b). Further, before her injury, plaintiff had been standing with both feet planted firmly on the ground outside of the vehicle; she was entirely in control of her body’s movement, and she was in no way reliant upon the vehicle itself. Therefore, she was not in the process of “alighting from” the vehicle. MCL 500.3106(1)(c). At the time of her injury, plaintiff had already alighted.

Justice Marilyn Kelly, joined by Justice Michael F. Cavanagh, dissented, stating that she would have denied leave to hear the case because a reasonable juror could have concluded that Frazier was alighting the vehicle when she fell. Justice Diane M. Hathaway wrote a separate dissent, arguing that the Supreme Court shouldn’t “take any further action in this unique, fact-specific case that should have no precedential value.

Garbage truck in operation whether moving or not, COA says

In Strozier v. Flint Community Schools, et al., the Michigan Court of Appeals allowed a case to get to a jury, in which the plaintiff alleged she was injured when a school bus hit a garbage truck.

Witness testimony conflicted as to whether the garbage truck was in motion as the school bus passed it on a two-lane highway in Flint. The bus apparently swerved back into the lane quickly to avoid oncoming traffic, and clipped the garbage truck. At the time of the incident, Flint sanitation workers were collecting garbage along the road.

The Michigan Court of Appeals said it didn’t matter if the truck was in motion or not, because it was “in operation” for the purposes of the motor vehicle exception to the Michigan Governmental Tort Liability Act, MCL 691.1405.

The panel said, even if the truck wasn’t moving, it was still in operation under the Supreme Court’s decision in Chandler v. County of Muskegon because it was being operated as a motor vehicle and “encompasse[d] activities that are directly associated with the driving of a motor vehicle.” It compared the facts favorably to another case in which the Supreme Court issued an order only, Martin v. Rapid Inter-Urban Transit Partnership, while distinguishing it from a case in which a city truck was parked on the side of the road, Poppen v. Tovey. The Martin case involved a bus passenger was injured when she slipped on icy bus steps while exiting. The order said “[t]he loading and unloading of passengers is an action within the ‘operation’ of a shuttle bus.”

This case is factually similar to Martin and distinct from Chandler and Poppen. In Poppen, the defendant parked the truck on the road, with its hazard lights on, for about five minutes, in a way that indicated it was not currently in use as a vehicle. Similarly, in Chandler, the bus was parked in a maintenance garage as the driver exited the vehicle, indicating that use of the bus as a vehicle had ended. Here, even if the garbage truck were stopped, it was stopped because it was carrying out its intended function of picking up garbage. As it is impossible for a garbage truck to perform the function for which it was designed without periodically stopping to pick up garbage, we conclude that stopping to pick up garbage is necessarily included within the “operation” of a garbage truck. Therefore, we conclude that summary disposition under MCR 2.116(C)(7) was not warranted where the motor vehicle exception to governmental immunity would apply regardless of whether the facts are as plaintiff contends, or as defendant contends.

Western District proposes local court amendments

Beginning June 1, 2012, the U.S. District Court for the Western District of Michigan will require electronic filing of civil complaints under a proposed amendment to the court’s local rules.

W.D. Mich. LCivR 5.7(c) and (d)(i) currently allow for, but do not require, electronic filing of complaints and other initial pleadings. According to Administrative Order 11-126:

Over 70% of initial pleadings are now filed electronically, and only a few attorneys are not making use of electronic filing of complaints.

The Court has concluded that electronic filing of complaints should be made mandatory for all attorneys, for cases filed on and after April 1, 2012.

Exceptions will be made on a showing of hardship or other good cause and for cases that are sealed in their entirety, such as qui tam actions.

Unrepresented litigants will continue to file their complaints — and all other documents — on paper.

Under the proposed changes, W.D. Mich. LCrimR 9 would be repealed.

Local Criminal Rule 9.1 (requiring delivery of original arrest warrants to the Marshal) is hereby REPEALED. The rule is no longer necessary, in light of W.D. Mich. LCrimR 49.10(h)(i) which allows the Court to issue and to transmit warrants in electronic form.

Under proposed W.D. Mich LCivR 5.7(d)(ii)(F) and (d)(vii), a 5 MB filing restriction would be lifted.

The Local Rules presently prohibit the electronic filing of any document over 5 MB in size.

Technological changes now allow the filer to divide such oversized documents into parts, each smaller than 5MB, for purposes of electronic filing.

The Local Criminal and Civil Rules are therefore amended to remove this restriction and to require appropriate division of oversized documents.

The Western District has tenatively approved the amendments but is seeking comments on the proposed changes.

All comments should be in writing and must be received by the Court no later than January 27, 2012. Comments should be addressed to:

Tracey Cordes, Clerk
United States District Court
399 Ford Federal Building
110 Michigan, N.W.
Grand Rapids, MI 49503

or submitted electronically to ecfhelp@miwd.uscourts.gov. The Court will consider all comments at its March 2012 meeting before promulgating a final version of the proposed rules.

What’s in a name?

When Michigan Lawyers Weekly put together its last special “Bar Passers” section, our Cracker Jack editors combed through the list of the names of Michigan’s newest lawyers, looking for any obvious typographical errors or names that may be misspelled.

And one of the names on the list was one Samuel J. Bernstein. We wondered if this guy is related to the other Samuel Bernstein.

The younger Bernstein (pronounced “Bern-stine,” not “Bern-steen“) has known since he was in elementary school that he wanted to be a lawyer. So somewhere around the time he entered the fifth grade, he was often asked if he’s related to the personal-injury lawyer who has advertised his way into being a household name.

He’s not. But he might not have minded if he found out that there is some family connection, especially if it means he could go into the family business.

He’s drawn to the idea of working on personal-injury cases or medical malpractice, but will consider just about anything. The MSU Law School grad is staying busy and sharpening his skills by working as a solo guy for now. He’s helping friends and friends of friends to form LLCs and operating agreements, and answering questions about trademarks and logos.

All that’s just fine, but what he really wants, he said: “I want to find a job with a firm.”

He’s not sure if his recognizable name will work for him or against him. But he’s never considered trying to capitalize on it, nor has he ever considered changing it.

Though that would make things easier to market himself on the internet, as some newly minted professionals do. He could certainly set up a webpage, or launch a blog, but when he ran a Google search on his own name, the first 10 pages were occupied by the other better known Bernstein.

“Yeah,” he said casually. “That’s got to be a pretty common name.” Maybe it is. But among lawyers in Michigan, there are just two. And I do hope the younger will stay in touch and let us know where he lands. With a name like that, I’m hoping for something interesting.