A wet mess: Class-action sought for owners of vehicles swamped at Ionia Fairgrounds

Ionia County Circuit Judge Suzanne Kreeger will decide whether to certify a class action for people whose cars were flooded at the Ionia County Fairgrounds by the rapidly rising Grand River.

A Grand Rapids radio station, which sponsored an event at the fairgrounds, is accused of providing parking in a flood plain and not paying attention to weather reports about possible flooding.

The rains came and the river rose. Grand Rapids attorney John Tallman, who is seeking the class certification, says more than 1,000 vehicles were damaged.

Clear Channel Communications, which owns the radio station, is pointing the finger elsewhere.

Clear Channel has named Ionia, the Ionia Free Fair Association, Jackson-based Consumers Energy and the National Weather Service as potential other parties. Consumers operates a dam upstream of the fairgrounds.

It intends to file one or more notices of non-party fault, Clear Channel said.

Clear Channel relied on the Ionia Department of Public Safety and others for concert-goers; safety and did not own the parking lot, the company’s representatives have said.

The Grand Rapids Press has the story.

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Attorney says state law requires casino to return gambler’s losses

Who says you can eat your cake and have it, too?

Attorney Frank A. Cusumano, that’s who.

Cusumano has sued MotorCity Casino on behalf of a client, Italo Mario Parise, who has lost more than $600,000 over the last 10 years at the casino’s slot machines, card games and gaming tables, according to a report in The Detroit News.

According to Cusumano, a little-known state law still on the books, MCL 600.2939, requires the casino to give Parise back the money he lost.

Cusumano, who says the suit is the first of its kind in Michigan, chatted with WJR’s Paul W. Smith yesterday morning about Parise’s claim. Audio from WJR available here.

Cusumano’s Web site now features a page proclaiming “Sue The Casinos And Recover Your Losses – No Fee Unless You Recover.” The page includes a copy of the pleadings filed in Parise’s case.

Will patience pay off in civil suit against prosecutors and police?

In February 2006, Claude Zain McCollum was convicted of murdering a Lansing Community College professor, but he walked out of prison last fall after Ingham County Prosecutor Stewart Dunnings III told the Michigan Court of Appeals a mistake had been made.

Yesterday, McCollum’s legal team walked into Ingham County Circuit Court and filed a 50-page civil complaint against almost everyone, including Dunnings, who had anything to do with his arrest and prosecution.

The complaint contains an impressive mix of constitutional and tort-based claims. Whether this actually goes anywhere remains to be seen. Most of the named defendants are prosecutors and police officials. Governmental immunity is a pretty thick shield to pierce.

But you can’t fault McCollum for trying.

According to McCollum’s complaint, when Dunnings asked the Court of Appeals in September 2007 to vacate the conviction, he said a new suspect had been identified. He also cited videotape evidence “showing that [McCollum] may have been somewhere other than the crime scene at the time of the crime.” The complaint alleges that what Dunnings didn’t tell the COA is that the defendants in McCollum’s civil complaint allegedly had known about that video evidence since March 2005, a couple of months after the professor was killed and McCollum had been arrested. The complaint goes on to say that the evidence was never disclosed to McCollum’s trial attorney, and the jury never heard about it.

At an October 2007 press conference to announce that he was seeking dismissal of the charges against McCollum, Dunnings again mentioned the new suspect. Later, the Michigan State Police went one better. They said the new suspect had confessed to the murder.

Last Sunday, the Lansing State Journal published an exhaustive report about McCollum’s saga, including the fact that his attorneys had a civil suit in the works.

On Tuesday, Jan. 22, Dunnings said he still believes McCollum is innocent but wants to keep open the option to recharge McCollum on the off chance that the Michigan State Police, who are resifting the evidence, might turn up something against him. For that reason, Dunnings said, he would resist McCollum’s efforts to have the dismissal of the murder charge converted from a dismissal without prejudice to a dismissal with prejudice.

Yesterday, as mentioned, McCollum’s suit was filed. Paragraph 123 of the complaint unambiguously states what McCollum’s lawyers think about Dunnings’ latest statements: “Defendant Prosecutors furthermore continue as recently as January 22, 2008 to threaten Plaintiff [McCollum] with possible prosecution, motivated not out of a search for the truth for the real killer, but for political or other improper means, if not continued animus toward Plaintiff, all to his significant detriment.”

The Lansing State Journal, in its Sunday report about McCollum’s case, said he “is not bitter about his imprisonment. If anything, he expects wrongs will be righted.

“‘I believe by being patient,’ the Lansing man said, ‘it will pay off.'”

Time will tell. He may need the patience of Job for this one.

Business, bankruptcy, litigation and evidence: FBA plans Feb. 6 seminar

The Eastern District of Michigan Chapter of the Federal Bar Association is accepting on-line pre-registrations for a Feb. 6 seminar, “Trial Advocacy: Financial Issues In Commercial Litigation and Business Bankruptcies.”

The 8:30 a.m. event at the Theodore Levin U.S. Courthouse in Detroit features two demonstrations: “Financial Issues In Commercial Litigation & Business Bankruptcies” and “Presenting Evidence And Expert Witnesses In Business And Bankruptcy Proceedings.”

More information here.

Mail or e-mail? Ingham judge will decide union contract vote issue

A labor pact between Michigan State University and over 1,700 members of the Administrative Professionals Association is on hold until Ingham County Circuit Court Judge Paula Manderfield decides whether APA officials were authorized to conduct a ratification vote by e-mail.

Judge Manderfield enjoined enforcement of the union-approved contract last week after some members complained that APA bylaws require voting by mail, not e-mail.

A hearing is scheduled for Nov. 15. The Lansing State Journal has the story.

Ohio Supreme Court pans Fieger client’s $30M verdict

It was the Ohio Supreme Court’s turn last week to do what Michigan appellate courts have done several times over the past few years – wipe out a multi-million dollar verdict for one of Geoffrey Fieger’s clients.

This time, it was a $30 million jury award for a 20-year-old man who was born with a damaged brain and other serious problems.

The reason the OSC brought the curtain down on the verdict? In part, it was Fieger’s “theatrics” in the courtroom.

Now, the trial judge wasn’t exactly blame-free either. As recounted by the OSC, the trial judge let Fieger’s expert testify, over defense counsel’s objection, about medical-care costs far in excess of the figure the expert provided in a written report. And then there was the judge’s in-the-hallway off-the-record instruction to jurors, some of whom admitted they saw a newspaper article about the trial. The judge’s on-the-spot attempt to unring the bell: he told the jury to disregard what they had read.

When the defense team demanded a new trial, the judge readily agreed. The OSC noted the trial judge’s acknowledgement that his miscue with the expert allowed the jury to think about, and award, $15 million in economic damages. And the newspaper article? The judge said he had read it, too, and he could easily see how some of the jurors may have been itching to give Fieger’s client a record-breaking award.

Another big influence on the jury, the trial court and the OSC agreed, was the man from Oakland County, Michigan and the way he conducted himself in court.

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Some Michigan judges have seen it, said it before

Michigan’s appellate courts, on occasion, have been extremely critical of Geoffrey Fieger’s trial tactics, and have taken him to task for many of the same things discussed in the Ohio courts’ opinions. See, Powell v. St. John Hosp., Badalamenti v. William Beaumont Hosp., and Gilbert v. DaimlerChrysler.

The OSC echoed the trial judge’s observations that: Fieger was discourteous; there were plenty of theatrics; he interrupted defense counsel; he put his own words into the witnesses’ mouths; he mischaracterized evidence to mislead the jury and he brought the forbidden issue of attorney fees into play.

In closing argument, the OSC said, Fieger dwelled on a spoliation-of-evidence claim, even though the trial judge had earlier thrown it out. And he cast the case as an epic struggle between a poor black guy and rich, powerful corporate interests.

In the end, the OSC said the jury did pretty much what Fieger asked: it looked at its $15 million economic damages award on the verdict form and wrote another $15 million in the space for punitive damages.

After the trial judge entered the order for a new trial, the plaintiff’s team moved to disqualify him. Apparently, the trial judge had had enough and voluntarily recused himself from further proceedings.

Up in the Court of Appeals of Ohio, Eighth District, the majority and dissenting opinions reveal that none of the judges were concerned about the trial judge’s extracurricular handling of the newspaper article. The majority said Fieger hadn’t objected and defense counsel apparently had a private chat with the trial judge about the article. They weren’t about to reward a claimed error that defense counsel instigated.

The majority characterized Fieger’s performance as zealous representation. “While we agree that plaintiff’s attorney does not appear in the transcript to be the most likeable person, we do not find that his conduct rises to the level to justify the granting of a new trial.” In contrast, the dissenting judge spent 27 pages detailing what she called Fieger’s “manipulative trial technique” and “the extent of his outrageous melodrama” in his closing argument, which, she said, was enough by itself to warrant a new trial.

The majority said the defense team was not contesting liability on appeal, only the super-sized verdict. Because there was sufficient evidence to support the jury’s liability finding, there was no need for a new trial. The majority conceded that there were problems with the expert testimony on damages. Remittitur would be the correct remedy. And, “the trial court is in the best position to determine whether a damages award is excessive.”

The OSC said the appeals court was looking at the wrong thing. It’s not about whether there was sufficient evidence to support the jury’s verdict. It’s all about the trial court being in the best position to determine whether the jury’s verdict “was excessive and given under the influence of passion or prejudice” and whether counsel’s misconduct “tainted the verdict.” The OSC ruled that if there’s competent, credible evidence to answer “yes” to these inquiries, as there was in this case, the trial court does not abuse its discretion by ordering a new trial, and that decision “should remain undisturbed.”

A dissenting justice sided with the lower appeals court majority on the issue of remittitur.

He also had this to say:

To order a retrial because of the obnoxious behavior of an attorney does our system of justice no favors – such behavior must be dealt with as it occurs, not after a judge decides that a party may have benefited from it.

The verdict should be knocked down to $10 million, the dissenter said. That’s a lot closer to the evidence of economic damages.

And he closed with this zinger:

Should the plaintiff refuse the remittitur, he would be entitled to a new trial. Before that trial, it would be wise for the trial judge to deny any motion for admission pro hac vice filed on behalf of Mr. Fieger.

The case is Harris v. Mt. Sinai Medical Center.