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Practice Updates |
LEGAL UPDATE
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Covenant Not to Compete -
Summary Judgment for Former Employee Affirmed by the
Federal 6th Circuit Court of Appeals
The 6th Circuit Court of Appeals recently affirmed
summary disposition for a former employee who was
sued by his former employer for allegedly violating
a covenant not to compete. The former employer also
claimed that the former employee violated a
confidentiality provision in his employment
agreement, violated the Michigan Uniform Trade
Secrets Act, interfered with the former employers
business relations and violated a fiduciary duty to
the former employer. Summary disposition was granted
in favor of the former employee by the United States
District Court for the Western District of Michigan.
The case was handled at the trial court level and on
appeal by Steven C. Berry.
The covenant not to compete was contained within a
written employment contract between the defendant,
the former employee, and the plaintiff, the former
employer. The covenant not to compete stated that
the defendant would not compete in the business of
the plaintiff, the equipment sale, rental and
leasing business, within a defined target area which
was essentially the western half of the state of
Michigan but excluded Newaygo County. The evidence
showed that the Newaygo County exclusion was
inserted into the covenant not to compete because,
at the time the employment agreement was signed by
the plaintiff and defendant, the defendant had a
pre-existing competing business in Newaygo County.
The evidence also established that the pre-existing
competing business in Newaygo County consistently
had a customer base which included a substantial
number of customers located outside of Newaygo
County.
In affirming summary judgment for the defendant, the
6th Circuit Court of Appeals held that the language
of the covenant not to compete, drafted by the
plaintiff, only restricted the location of a
competing business. It did not prohibit the
competing business in Newaygo County from doing
business across county lines and selling, renting or
leasing equipment to customers located outside of
Newaygo County. In addition, to the extent the
language of the covenant not to compete was
ambiguous, the 6 th Circuit held that parol evidence
clearly established the intent of plaintiff and
defendant to exclude the pre-existing business in
Newaygo County from the prohibitions of the covenant
not to compete. The 6th Circuit Court of Appeals
also affirmed summary judgment in favor of the
defendant on all of the other claims asserted
against him by plaintiff. The 6th Circuit Opinion
has been recommended for full text publication and
its electronic citation is 2004 FED App. 0005P(6th
Cir.).
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Medical Malpractice -
Summary Disposition Obtained for Doctor and Hospital
Because Plaintiff's Expert Witness Did Not
Demonstrate a Knowledge of the Local Standard of
Care
The Charlevoix County Circuit Court granted summary
disposition to our clients, a defendant doctor and a
defendant hospital, after striking plaintiff's
expert witness. The trial court found that the
plaintiff's expert witness could not testify since,
in his trial deposition, he failed to demonstrate a
knowledge of the applicable local standard of care.
The case was handled by Steven C. Berry.
The defendant doctor was board-certified in family
medicine and, under a contract between his family
practice group and the defendant hospital, the
defendant doctor staffed the hospital emergency
room. About thirty percent of the defendant doctor's
practice was in an office setting and about seventy
percent of his practice was covering the emergency
room. The plaintiff saw the defendant doctor in the
hospital emergency room after sustaining a
significant laceration to her right thigh. The
plaintiff subsequently developed a significant wound
infection that plaintiff claimed could have been
prevented if the defendant doctor had administered
prophylactic antibiotics in the emergency room.
The plaintiff's original expert witness was
board-certified in emergency medicine and internal
medicine, but was not board-certified in family
medicine like the defendant doctor. The trial court
struck plaintiff's original expert witness but
refused to dismiss the case and allowed plaintiff to
get another expert witness, one who was
board-certified in family medicine.
The trial deposition of the second expert witness
was conducted. Through cross examination it was
established that the new expert witness had
practiced only in the Chicago and Cleveland
metropolitan areas, and had never practiced in
northern Michigan or anywhere in the state of
Michigan . The trial deposition testimony of the new
expert witness also established that he had limited
his practice to emergency medicine exclusively since
at least the early 1980's. He had not practiced
family medicine since the early 1980's.
In moving for summary disposition on behalf of the
defendant doctor and the defendant hospital, we
argued that, though the new expert witness was
board-certified in family medicine, he did not
devote a majority of his professional time to the
active clinical practice of family medicine during
the year immediately preceding the alleged
malpractice, as required by MCL 600.2169. We also
argued that, in accordance with the Michigan Supreme
Court decision in Cox v Board of Hospital Managers
for the City of Flint , 467 Mich 1; 651 NW2d 356
(2002), whether the defendant doctor was viewed as a
general practitioner or a specialist, the plaintiffs
expert must demonstrate a knowledge of the local
standard of care in order to give standard of care
testimony.
The trial court agreed that the plaintiff's expert
witness must demonstrate a knowledge of the local
standard of care and agreed that the plaintiff's
expert witness did not establish such a knowledge in
his trial testimony. Thus, the trial court struck
plaintiff's expert witness and granted summary
disposition to the defendant doctor and defendant
hospital.
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Auto Negligence - Favorable Defense Verdict on
Admitted Liability
Eight Van Buren County Circuit Court jurors
unanimously decided on January 23, 2004 that two
plaintiffs should be awarded $1,000 each for
injuries sustained in a motor vehicle accident in
which the defendants had admitted liability. The
plaintiffs asked for awards of $165,000 and $95,000
respectively. The cases were defended and tried by
Edwin J. Vander Ploeg, Jr.
The trial involved two consolidated lawsuits that
arose from a May 24, 2001 single vehicle accident in
which the plaintiffs, graduating high school
seniors, were front seat passengers in a pick-up
truck driven by an acquaintance and owned by the
driver's father and grandfather. The truck
fishtailed, hit a tree, and flipped over. One of the
plaintiffs was pinned inside for over an hour and
sustained a brachial plexus injury to his right
shoulder. The second plaintiff was ejected from the
vehicle and sustained a jammed A/C joint in his
right shoulder, that later required arthroscopic
surgery, and scarring over his back and arm.
Key to the favorable defense verdict was admitting
liability. That strategic decision resulted in entry
of an Order in Limine that prevented plaintiffs from
presenting any evidence, testimony, argument or
mention of the negligence or wrongdoing of the
defendant driver. The focus of the case then became
the plaintiffs' injuries, rather than the prejudice
that may have resulted from tainting the jury with
the driver's negligence and wrong doing in the
moments preceding the accident.
The jury learned that both plaintiffs were treated
at local hospitals, but were released less than 24
hours after the accident. Both returned to gainful
employment a number of months after sustaining their
injuries. Both had been attending college on a full
time basis. Both were able to resume hobbies and
social activities within months of the accident.
Other than the arthroscopic procedure that the
second plaintiff underwent, there were no invasive
surgical procedures required. The defendants relied
largely on the testimony of the plaintiffs
themselves, and their treating doctors, to establish
that the plaintiffs were injured, but that they had
made good recoveries and have been able to resume
their normal lives despite suggestions of some
future shoulder weakness and achiness.
The parties participated in voluntary Facilitative
Mediation and mandatory Case Evaluation, but were
unable to resolve the cases. An initial trial began
on August 28, 2003, but ended in the Court declaring
a mistrial when one of the plaintiffs' attorneys
repeatedly discussed liability issues during his
opening statement that were specifically precluded
by the Order in Limine. An appeal is expected.
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Construction Defect - Jury Verdict of No Cause
for Action
Thomas C. Kates recently represented a general
contractor in litigation involving large industrial
buildings in Allegan County Circuit Court. The
plaintiff alleged that the contractor negligently
constructed the warehouse buildings and that as a
result, the building roofs failed, necessitating
removal and replacement of the roofs and supporting
structural steel, as well as damages for lost rental
revenues and damaged inventory. Plaintiff claimed
over four million dollars in damages. Following a
four day trial, the jury returned a verdict of no
cause for action.
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Auto Negligence - No Cause Verdict Affirmed by
the Michigan Court of Appeals
The Michigan Court of Appeals recently affirmed a
Washtenaw County jury's no cause verdict obtained by
Jim Hunt, who represented the defendant and his
employer in an automobile negligence case. The
plaintiff appealed complaining that defense counsel
had improperly disparaged her economist during
cross-examination, entitling plaintiff to a new
trial. The Court of Appeals, which issued its
Opinion on October 30, 2003, rejected plaintiff's
argument holding that the challenged remarks by
defense counsel were proper comments regarding the
credibility of plaintiff's expert, which was a
contested issue. The Court of Appeals stated that
defense counsel was properly attempting to persuade
the jury that the witness testimony was not
reliable. The appeal was handled by Mary Jo Boerman.
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Medical Malpractice - Summary Disposition for
Doctor and Hospital Affirmed by the Michigan Court
of Appeals
The Michigan Court of Appeals on December 9, 2003
affirmed summary disposition in favor of the
defendant hospital and defendant doctor in a medical
malpractice action. Summary disposition was obtained
on July 1, 2002 in the Cass County Circuit Court.
The case was handled by Steven C. Berry.
The case concerned a plaintiff who, complaining of
chest pains, visited the hospital emergency room on
March 28, 2000. The plaintiff was admitted to the
hospital and came under the care of the defendant
doctor. The plaintiff had an extensive history of
cardiac problems, including coronary artery disease
that necessitated two previous cardiac
catheterizations and a quadruple bypass. The
defendant doctor ordered that plaintiff be
administered a combination of three drugs, Calan,
Imdur, and Tenormin. This is known as triple
therapy. The plaintiff later developed junctional
bradycardia and hypotension. After being put on a
saline drip and dopamine drip to stabilize her
condition, the plaintiff was transported by air to
another hospital to undergo an emergency cardiac
catheterization to ensure that plaintiff had not
suffered another heart attack. There were no
complications with the cardiac catheterization and
the surgeon who did the catheterization determined
that plaintiff's junctional bradycardia and
hypotension were caused by the triple therapy and
not the result of a new heart attack. The plaintiff
was discharged from the other hospital one day
following the cardiac catheterization.
Plaintiff retained an expert who testified that the
administration of triple therapy was a violation of
the standard of care. This was contested by the
defendants in the trial court, but the motion for
summary disposition was predicated upon the fact
that plaintiff had no expert or medical evidence to
establish that the administration of triple therapy
proximately caused any injuries or damages to the
plaintiff. Instead, the medical evidence showed that
the cardiac catheterization would have been
performed in any event, even without the episode of
bradycardia and hypotension. In addition, there was
no evidence from plaintiff or any of her treating
doctors that the episode of bradycardia and
hypotension resulted in any physical, mental or
emotional injury to plaintiff. After reviewing the
record, the trial court, the Cass County Circuit
Court, granted summary disposition.
In affirming summary disposition the Michigan Court
of Appeals noted that a medical malpractice
plaintiff, must present substantial evidence from
which a jury may conclude that more likely than not,
but for defendants conduct, the plaintiff's injuries
would not have occurred. A mere possibility of such
causation is not enough. When the matter is one of
pure speculation or conjecture, or the probabilities
are at best evenly balanced, the trial court must
find in favor of the defendant. In affirming summary
disposition, the Court of Appeals stated that,
Viewing the evidence in the light most favorable to
plaintiff, we find that the trial court correctly
concluded that plaintiff did not establish proximate
cause between the defendant doctor's actions and the
plaintiff's alleged damages. The appeal was handled
by Mary Jo Boerman and Steven C. Berry.
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Premises Liability - Open-and-Obvious Defense
In the case of O'Donnell v Garasic the Michigan
Court of Appeals held that a woman who fell while
descending the stairs in a cabin she rented can
overcome the open-and-obvious defense because the
stairs presented a special aspect under the totality
of the circumstances. The Court of Appeals wrote,
"Considering that this stairway was the only means
of egress from the loft area to the main floor of
the cabin, we find that the presented factors taken
together constituted special aspects differentiating
the risk that the loft and stairway posed from
typical open-and-obvious conditions."
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Medical Malpractice - Wrongful Death - Notice
of Intent
In Halton v Fawcett, the plaintiff's decedent died
from gallbladder cancer. Before the plaintiff was
appointed personal representative of the decedent's
estate, he issued a notice of intent to the
defendants. Thereafter, the plaintiff was formally
appointed personal representative of the decedent's
estate and, as personal representative of the
decedent's estate, timely filed the medical
malpractice/wrongful death lawsuit against the
defendants. The Court of Appeals ruled that the
notice of intent was not defective. The defendants
had argued that the notice of intent was defective
because MCL 600.2912 b(1) requires that the person
who gives notice of intent must be the same person
that actually brings the lawsuit. The defendants had
argued that the plaintiff as an individual was a
different person than the plaintiff as personal
representative of the decedent's estate. The
Michigan Court of Appeals rejected the defendants'
contention and ruled that the notice of intent was
proper. |
No Fault Insurance - Overdue Benefits
The Michigan Supreme Court in Proudfoot v State Farm
Mutual Ins Co ruled that no fault insurance benefits
for necessary home modifications were not overdue
and, as a consequence, the defendant insurance
company was not liable for penalty interest and
attorney fees. The plaintiff had argued that it was
the obligation of the no fault insurance company to
pay the home modification expenses before the home
modification repairs had actually been performed.
The Michigan Supreme Court disagreed, however, and
ruled that a no fault insurance company is not
required to pay no fault insurance benefits until
the insured person becomes personally liable for
those expenses. |
Employment Discrimination - Title VII
In Steiner v Henderson, the Federal Sixth Circuit
Court of Appeals refused to apply equitable tolling
to save a claim by a plaintiff that her employer
discriminated against her based upon her gender. The
plaintiff failed to file her charge of
discrimination with the EEOC within 45 days of the
alleged discrimination as required by Title VII. The
plaintiff claimed that her failure to timely file
her EEOC charge should be excused under the doctrine
of equitable tolling because she was being proactive
with her employer in seeking conciliation. The Sixth
Circuit Court of Appeals disagreed holding that the
EEOC filing requirements of Title VII are mandatory.
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Medical Malpractice - Summary Disposition
Affirmed by the Michigan Court of Appeals
Our firm represented a defendant hospital which was
sued by a plaintiff who feared she may have been
infected with the AIDS virus or hepatitis after she
was advised by hospital personnel that surgical
instruments used during her surgery may not have
been properly sterilized. The lawsuit was not filed
within the two-year period of limitations applicable
to medical malpractice claims. The plaintiff
contended that the failure to properly sterilize
surgical instruments constituted ordinary
negligence, subject to a three-year statute of
limitations, rather than medical malpractice,
subject to a two-year statute of limitations. The
trial court, the Allegan County Circuit Court,
granted summary disposition to our client and
dismissed the case. The trial court concluded that
plaintiff's claim was for medical malpractice and
that the claim was time barred because it was not
filed within the two-year period of limitations
applicable to medical malpractice claims. The
plaintiff appealed to the Michigan Court of Appeals.
On November 25, 2003 the Michigan Court of Appeals
affirmed the decision of the Allegan County Circuit
Court.
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Premises Liability
The plaintiff, a 74-year-old woman, was injured when
her son's dog became entangled in her purse strap
and dragged her down two steps onto a concrete
patio. In an unpublished decision, the Michigan
Court of Appeals held that plaintiff cannot state a
claim for relief under either a premises liability
theory or a general negligence theory. Myeres v
Myeres.
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Medical Malpractice - Expert Witness
Qualifications
The lawyer for a plaintiff in a medical malpractice
case was referred to an expert witness by a
physician. The physician told the lawyer that the
expert witness was a past president of the American
Board of Emergency Medicine and was board certified
in emergency medicine. The plaintiff's lawyer
assumed that the information about the expert given
to him by the physician was accurate. The lawyer
never asked the expert to verify the expert's
qualifications. As it turned out, the expert witness
was not board certified in emergency medicine and,
therefore, was not qualified to give expert
testimony under MCL 600.2169 . The Michigan Court of
Appeals ruled that the plaintiff lawyer's reliance
on the accuracy of the referring physician's
statements about the expert's qualifications was not
reasonable. It affirmed summary disposition in favor
of the defendant holding that, because the expert
witness was not qualified, the expert's affidavit of
merit should be stricken. Geralds v Munson Health
Care.
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Employment Law - Retaliatory Discharge
An employee claimed that he was fired for telling
his employer that he would support a co-worker's
race discrimination claim. The trial court dismissed
the lawsuit against the employer. The United States
Sixth Circuit Court of Appeals reversed and held
that the fired employee did state a valid claim for
retaliatory discharge in violation of Title VII .
Abbott v Crown Motor Company.
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| Pre-Judgment Interest
While Appeal Pending
In Morales v Auto-Owners
Ins Co, the Michigan Supreme Court held that an
auto accident victim who successfully sued his
insurance company for no-fault benefits was entitled
to pre-judgment interest during the time the case
was on appeal. The defendant insurance company had
argued that pre-judgment interest should be tolled
while the case was on appeal. The Michigan Supreme
Court overruled a 1998 Court of Appeals decision,
Dedes v Asch, which had held that
pre-judgment interest may be disallowed for periods
of delay that are neither the fault of nor caused by
the judgment debtor.
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Automobile Negligence -
Serious Impairment
In two recent decisions, the Michigan Court of
Appeals affirmed summary disposition for defendants
concluding that the plaintiffs' injuries did not
amount to a serious impairment of body function. In
each case, the trial court and the Court of Appeals
concluded that plaintiffs' had failed to establish
that the physical injuries suffered and the alleged
impairments affected the plaintiffs' general ability
to lead his or her normal life. Atchison v Wakeman.
Miller v Andrews. |
Pre-Judgment Interest
While Appeal Pending
In Morales v Auto-Owners Ins Co, the Michigan
Supreme Court held that an auto accident victim who
successfully sued his insurance company for no-fault
benefits was entitled to pre-judgment interest
during the time the case was on appeal. The
defendant insurance company had argued that
pre-judgment interest should be tolled while the
case was on appeal. The Michigan Supreme Court
overruled a 1998 Court of Appeals decision, Dedes v
Asch, which had held that pre-judgment interest may
be disallowed for periods of delay that are neither
the fault of nor caused by the judgment debtor.
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Premises Liability The defendant business was
granted summary disposition in the trial court on
plaintiff's claim that the defendant was negligent
for allowing mustard on the floor near a food
service area in the defendant's store. Plaintiff
slipped and fell on the mustard. Plaintiff could not
establish that the defendant store had actual or
constructive notice of the presence of the mustard
on the floor, or that the defendant's actions put
the mustard on the floor. Rather, it was plaintiff's
argument that the defendant allowed customers to put
condiments on food in the food service area and,
therefore, should be liable for the presence of a
condiment like mustard on the floor. Both the trial
court and the Court of Appeals rejected this
argument. The Court of Appeals affirmed summary
disposition for the defendant in Pica-Kras v
Costco Wholesale, Inc. |
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If you have any questions
regarding any of these matters or desire any other
information, please call any of our attorneys. |
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Welcome to our new web site!
We are pleased to announce the change
of our firm’s name from Bigler, Berry, Johnston, Sztykiel &
Hunt, P.C. to Berry, Johnston, Sztykiel, Hunt &
McCandless, P.C. Along with our name change comes the
opening of our Howell location, marking the beginning of
another chapter in the history of our firm.
This change does not alter our 35 year
philosophy of responsiveness to our client’s needs. Because
our management has not changed, we can continue to provide
the same high quality services that make us uniquely placed
to assist our clients in maintaining and enhancing the value
of their business operation in Michigan.
Our legal services extend to a broad
range of issues which include litigation, business services,
employment law, business contracts, municipal law as well as
our ongoing service to the insurance industry.
Our new web site serves to highlight
the depth of our commitment to serve the Michigan business
community. Please visit often. |
