Steve Hickey has been selected as a 2011 Michigan Super Lawyer for the third straight year.  Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.  In selecting attorneys for Super Lawyers, Law & Politics employs a rigorous, multiphase process.  See selection process.  Peer nominations and evaluations are combined with third party research.  Each candidate is evaluated on 12 indicators of peer recognition and professional achievement.  As a result this list represents an elite group of lawyers comprising less than 5% of the State Bar of Michigan.  See his profile at Super Lawyer.

Five attorneys from our office were selected by dbusiness magazine, Detroit’s premier business journal, as the best lawyers of 2010.  Steven Hickey, Michael Cianciolo, Patrick Fishman, Charles Cheatham, and ‘of counsel’ attorney Carole Chiamp.

Andrew Finn recently obtained summary disposition in favor of a real estate appraiser in a Wayne County Circuit Court case based upon the absence of proximate cause.  Flagstar Bank FSB v Wolkammer, Docket No. 08-113091-CZ.

Flagstar loaned $200,000 on a home equity line of credit that it believed would be secured a first mortgage on the subject property.  Unbeknownst to Flagstar, the borrower simultaneously obtained three other loans secured by mortgages that were recorded prior in time to Flagstar’s mortgage.  The prior liens totaled $1.58 Million, far exceeding the $916,000 appraised value of the property.  Flagstar also failed to obtain title insurance on its mortgage, and was thus left with worthless security when the borrower defaulted and the first mortgage holder foreclosed on the subject property.

After obtaining a review appraisal that estimated the market value at $630,000, Flagstar filed suit against the appraiser alleging that its $200,000 loss was proximately caused by an inflated appraisal.  The Court ruled that because the parties agreed that the value of the subject property far exceeded the value necessary to meet Flagstar’s Loan to Value requirements, and the subject property would have provided ample security had the mortgage in fact been a first mortgage, any alleged “inflation” of the appraisal could not be the proximate cause of Flagstar’s loss.

Steve Hickey participated as a Defense cross-examiner of Plaintiff’s medical/causation witness in a “mock trial” seminar presentation for HarrisMartin Publishing in Chicago, IL on June 21 – 22, 2009.  The “trial” involved a case of mesothelioma in a person exposed to asbestos through “take home” or “bystander” exposures.  Trial participants included approximately 20 attorneys from around the nation, all experienced in the trial of asbestos-related personal injury cases.  The seminar was attended by several hundred attorneys from around the nation.  At the conclusion of the mock trial the jury returned a verdict for the defense.

The Michigan Court of Appeals recently affirmed a trial court ruling granting summary disposition in favor of a real estate appraiser that testified as an expert witness for the plaintiff in an underlying inverse condemnation case against Clinton Township based upon the re-zoning of a parcel of property from Light Industrial to Residential Multiple Use.  The underlying case was dismissed by the trial court and affirmed by the Court of Appeals.  Both the trial and appellate courts cited several reasons for dismissal of the underlying action in addition to the testimony provided by the appraiser.

The trial court ruled that Plaintiff failed to establish that the appraiser’s testimony was the proximate cause of Plaintiff’s damages because the Plaintiff would not have prevailed in the underlying action, regardless of the opinions expressed by the appraiser.  One of the bases cited by the Court of Appeals in affirming dismissal was that Plaintiff lacked a constitutionally protected vested interest in the Light Industrial zoning classification.

In addition to affirming the dismissal of Plaintiff’s case against the appraiser, the Court of Appeals reversed a trial court ruling denying the award of “actual costs” under MCR 2.403.

Andrew Finn defended this case in both the trial court and the Court of Appeals.

HCFF attorneys Steve Hickey and Brendan Atkins, in a joint motion with co-defendants, recently obtained summary disposition of a mesothelioma case pending in Gratiot County, Michigan based on the State’s “Sophisticated User” statute. Michael Krafft vs. AO Smith, et al, docket no. 07-10763-NP. Judge Randy Tahvonen granted defendant’s motion, thereby dismissing this asbestos-related cancer claim, holding that the sophistication of Plaintiff’s employers meant that there existed no duty on the part of defendants to warn of the alleged risk of disease associated with use of their asbestos-containing products.

Michigan made the sophisticated user defense statutory in the late 1990’s as part of tort reform. MCL 600.2947(j) provides as follows:

A “sophisticated user” is:

A person or entity that, by virtue of training, experience, a profession, or legal obligations, is or is generally expected to be knowledgeable about a product’s properties, including a potential hazard or adverse effect. An employee who does not have actual knowledge of the product’s potential hazard or adverse effect that caused the injury is not a sophisticated user.

Following an unpublished decision of the Michigan Court of Appeals in the case of Bearup v General Motors, Judge Tahvonen ruled that it is not necessary for defendants to prove that both the Plaintiff and his employer were sophisticated. If defendant establishes that the employer alone was sophisticated concerning the risks of working with asbestos containing products, this will be sufficient to preclude the obligation of the product manufacture to warn.

Plaintiff Michael Krafft had three sources of employment associated with his alleged asbestos exposure. He worked for Michigan Chemical from 1969 to 1978, for General Motors Oldsmobile plant from 1978 to 1980, and for Total Petroleum Refinery from 1981 to 1993. Mr. Atkins prepared a joinder to co defendant’s motion for summary disposition, which Mr. Hickey presented at the hearing in February , arguing that:

1. All 3 employers had responsibilities to control asbestos dust exposures in the workplace in order to comply with state regulations that took effect in 1967. Federal regulations (OSHA, the US Asbestos Standard) imposed such obligations beginning in 1972. In this portion of the argument, Hickey and Atkins argued that by virtue of its “legal obligations”, (see MCL 2947(j), above, these employers had to be considered sophisticated at least as of the times these regulations took effect;

2. General Motors had one of the most sophisticated industrial hygiene departments in the history of industry, and was itself a manufacturer of asbestos containing products (brake linings). Moreover, one of the company’s industrial hygienists testified in earlier litigation that GM was in discussion of asbestos risks as early as the 1930’s, and aware of health risks associated with asbestos dust exposure by the 1960’s.

Plaintiff’s have revealed an intention to appeal the Court’s ruling. Judge Tahvonen gave his ruling from the bench, without a written opinion. A copy of the brief prepared by Mr. Atkins and the associated exhibits will be produced upon request. Contact either Steve Hickey or Brendan Atkins at 248-247-3300

ACCRUAL OF LATENT DISEASE CLAIMS UNDER
TRENTADUE v BUCKLER LAWN SPRINKLER CO.

by: Brendan J. Atkins and Steven M. Hickey
Hickey, Cianciolo, Fishman & Finn, P.C.

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Executive Summary

The Supreme Court’s decision in Trentadue that the statute of limitations had run when harm to Plaintiff’s decedent took place, and not when Plaintiff discovered the possible cause of action, has implications for the application of the statute of limitations defense in cases involving latent injuries, although the specific facts of the case make its application in other cases less than clear. In toxic tort cases, a threshold question is what constitutes “harm” to plaintiffs, and when does “harm” occur. The Trentadue decision does not address these questions, at least in the context of latent injury claims.

It is possible that claims based on breach of an implied warranty of quality or fitness might be treated differently, because of a separate statutory provision for discovery, but since negligence underlies every claim of breach of warranty of quality, Trentadue’s rejection of a discovery principle may yet be applied.

In time there may develop some clarity in the law pertaining to latent injury cases and the accrual of claims. Trentadue changes existing law but does not provide much in the way of such clarity. Trial and error through the course of extended motion practice lies ahead.

Click this link to see the full article….ACCRUAL OF LATENT DISEASE CLAIMS 

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Steven M. Hickey has been appointed the Vice-Chair of the Special Litigation Group, Toxic Tort/Environmental Law Section of the Defense Research Institute

The Insurance and Indemnity Section of the State Bar of Michigan has just successfully completed its first year as an official section of its bar.  Steven M. Hickey and Andrew L. Finn were among the first members.