The basis for the case was that there was a tire failure, which allegedly caused a motor vehicle accident.  This type of tire was intended for pickup trucks but was being used on RVs.  Goodyear conducted tests that revealed that there would be tire failures at certain temperatures and at certain weights.  Even though the results of Goodyear’s testing on the tire had been requested by the Plaintiffs’ counsel in written discovery multiple times, local counsel, national coordinating counsel and Goodyear did not provide this particular test.

During the case, written discovery propounded by Plaintiff’s counsel would be sent to Goodyear’s Arizona attorney.  That attorney would in turn send the discovery to the Goodyear’s national counsel.  The national counsel would prepare the responses to the written discovery and would forward the responses to in-house counsel at Goodyear for approval.  Only after in-house counsel reviewed and approved the response would the responses be sent to Plaintiff’s counsel.  Plaintiff’s counsel did not believe that Goodyear was fully complying with discovery requests and multiple hearings took place regarding Goodyear’s discovery responses.  On multiple occasions in front of the court, local and national counsel represented that all the testing that had been requested had been provided to the Plaintiff.

After the Arizona case was settled, the Plaintiff’s counsel became aware that the testing he sought had been disclosed by Goodyear in a trial involving the same type of tire in Florida.  These tests results were harmful to Goodyear’s position.  Plaintiff’s counsel was understandably not happy that the requested test information had not been provided in the Arizona case and brought an action for sanctions against local counsel, national counsel and in-house counsel for Goodyear.

The Arizona Court, in reaching its decision, stated that Goodyear’s national coordinating counsel “. . . deliberately withheld these responsive documents in the best interest of Goodyear.”  In addition, the Court found that local counsel and national coordinating counsel’s testimony conflicted with the documentary evidence and was not credible at the hearing for sanctions.  Further, Judge Silver noted that national counsel and Goodyear “. . . engaged in repeated deliberate attempts to frustrate the resolution of this case on the merits” and that Goodyear and its attorneys “. . . adopted a plan of making discovery as difficult as possible, providing only those documents they wished to provide, timing the production of the small subset of documents they were willing to turnover such that it was inordinately difficult for Plaintiffs to manage their case, making false statements to the court in an attempt to hide their behavior.” 

The Court held that the actions of the two outside counsel and that of an in house counsel on behalf of Goodyear were in bad faith.  It was determined that the national counsel and Goodyear were held jointly responsible for 80% of Plaintiffs’ counsel’s legal fees.  The local counsel was made responsible for paying the remaining 20% of the fees.  The total award between costs and attorneys’ fees was $2,884,057.39. 

This matter is currently under appeal.  But what one can learn from a case like this is that if you have important documents, it is far wiser to cooperate in discovery for a commercial litigation case than it is to improperly withhold the discovery.  If you withhold documents that would be relevant to the litigation, whether you are an attorney or a client, you may potentially be held in contempt and face significant sanctions. 

The Plaintiffs had stopped at an intersection on State Routes 109 and 20 in Fulton County.  After they pulled forward from the stop sign, they stopped again on the south side of SR 20 when the Defendant, who was directly behind them, hit the left rear corner of their van.  The damage appeared to be minimal in the photos presented to the jury.  The Plaintiffs testified that they had been hit at a high rate of speed, information that they had passed along to all of their health care providers.

A little over a year after the accident, Mr. Boyers had a back surgery for a condition that had existed for years but which he argued was aggravated by the accident.  The treating doctors, including a neurosurgeon, testified about the Plaintiffs’ medical history.  Mr. Boyers had been undergoing steroid injections into his back for years and had received one as recently as 10 days prior to the accident.  Some of the presented medical bills appeared to have been charged to the Bureau of Workers Compensation for problems that clearly predated the accident.  Mr. Boyers insisted on telling the jury that the medical records, which indicated he could work in his yard after the accident, doing such things as chopping wood, were not accurate. 

Mr. Rohrbacher chose not to use an independent medical expert and relied upon cross-examination of the doctors instead.  This was in part due to the material in the medical records and past experience with the neurosurgeon, as well as the fact that the various video depositions were already roughly 5 hours long.  Additionally, the Boyers’ family physician testified that the hip replacements that Mrs. Boyers had following the accident were unrelated to the accident but rather a result of her arthritis.

The jury was out for nearly 4 hours, due in large part to the jury interrogatories submitted by the underinsurance carrier, who was also a defendant, for the medical bills they had paid.  The jury gave each of the Plaintiffs $5,000 for past pain and suffering, $0.00 for future pain and suffering, $0.00 for loss of consortium and for medical expenses each incurred as a result of the accident; $17,600 for Mr. Boyers and $750 for Mrs. Boyers.  All of the previously paid medical expenses were eventually repaid to either their auto carrier or Medicare. 

The case was tried in large part because the Plaintiffs’ counsel believed that a jury would find the Plaintiffs to be such nice people that they would give the Plaintiffs a sizable award.  Plaintiff’s counsel also believed that presence of the underinsurance carrier in the trial would inflate the verdict.  The jury did not award the Plaintiffs what their attorney suggested, and, in making their finding, left a sizeable amount of the costs of the trial to be borne by their attorney.

Roughly a week after the trial one of the jurors called and volunteered to explain how they arrived at the numbers they did.  She indicated that everyone on the jury knew after they saw the photos of the vehicle that no high speed collision occurred and, after seeing medical records of treatment before and after the accident which appeared to be identical, they were convinced the surgery was not related.  She also pointed out that a number of the medical bills appeared to be double billing.

The Plaintiff, Nancy and Michael Bloom, sought damages resulting from an accident in which Defendant Kelly Powhida struck the rear-end of a vehicle operated by the Plaintiff’s daughter, Carrie B. Stout.  Mrs. Bloom was a passenger in her daughter’s vehicle, which was estimated to have incurred damages of $6,250.16.  Photographs of the vehicle indicated that it had incurred moderate to heavy rear-end damage.  Ms. Powhida’s vehicle was estimated to have sustained damages of $6,444.06. 

During the trial, the Plaintiffs presented medical bills of $87,003.44.  The Robinson v. Bates number (the amount actually paid to Mrs. Bloom’s medical providers as full payment for treatment) was never clearly identified, but Plaintiff’s counsel agreed on the approximate amount of $33,000.

A key focal point in the case was that Mrs. Bloom had a significant pre-existing condition, which she partly denied.  Mrs. Bloom, during her deposition, admitted that she had surgery on her neck in 2004.  During her deposition, she testified that her only neck issue between her surgery and the accident was some mild stiffness, for which she saw a chiropractor for treatment one time.  During trial, Mr. Trimble pointed out that this testimony was incorrect as Mrs. Bloom was treated on a regular basis by multiple doctors.  Before the accident occurred, Mrs. Bloom received multiple physical therapy sessions as well as an MRI, CT scans, multiple EMGs and X-rays of her neck.  At the time of the accident, Mrs. Bloom was taking several medications for her neck.

During the trial, Mrs. Bloom and most of her witnesses were impeached regarding their testimony about her prior medical treatment.  In fact, Mrs. Bloom’s husband admitted that his wife had neck and back issues before the accident occurred.  Three expert physicians testified on Mrs. Bloom’s behalf: the neurosurgeon who performed her prior surgery, her family physician, and a neurologist that Mrs. Bloom had seen both before and after the accident.   A major issue in the trial was Mrs. Bloom’s expert witnesses being unaware of her prior treatment.  Another factor which worked against Mrs. Bloom was the investigating officer’s testimony that Mrs. Bloom had stated at the scene of the accident that she was not injured.  Following the accident, however, Mrs. Bloom went to her home before going to the emergency room.

The defense did not need to present an independent medical examiner.  Instead, the defense’s only witness was the Defendant herself, who testified regarding the accident and admitting her negligence in causing the accident.

Prior to the trial, the parties attempted to mediate the dispute.  The Defendant initially offered the Blooms $10,000 to settle the case.  The Blooms did not make a counteroffer to Ms. Powhida’s offer at the mediation; instead, the Blooms’ first settlement demand was made a week prior to trial for the amount of $100,000.  Ms. Powhida countered with an offer of $15,000.  On the date of trial, the Blooms demanded $80,000, but were informed that the defense would not offer more than $30,000 to settle the case.  The Plaintiffs suggested $50,000, which was rejected by the defense.  Although the court recommended that the Plaintiffs reconsider the Defendant’s offer of $30,000 on the second day of the case, the Blooms rejected the offer and reiterated that they would not settle for less than $50,000.

On January 30, the case was submitted to the jury.  The jury deliberated for only 35 minutes, then returned a defense verdict on behalf of Ms. Powhida and against the Blooms, whereupon the Court entered a judgment for the defense.  The Blooms have since filed a motion for judgment notwithstanding the verdict and seeking a new trial, which remains pending before the Court.

The Academy is the first non-profit charter school in the Detroit metropolitan area.  The school will initially consist of kindergarten and first-grade classes.  A new class will be added each year as the school grows.

Filling Nick’s shoes as Chairman is James Weber of Weber-O’Brien, Ltd.  Nick remains a member of the Chamber’s Board of Directors.

Paradigm Magazine is a biannual publication produced by the International Society of Primerus Law Firms.  Primerus is a legal society consisting of more than 190 member law firms worldwide.  RCMTZ has been a member firm of Primerus since 2012.

While earning his law degree, Adam entered the University’s dual-degree program, which enables students in certain fields of study to pursue multiple degrees simultaneously.  After passing the bar exam and becoming licensed as an attorney, Adam completed his MBA studies, while working full time at RCMTZ. 

Adam plans to utilize the skills learned while obtaining his MBA to advise clients on legal and business matters.  He joins RCMTZ shareholders David Rohrbacher (MBA) and Nicholas Cron (Master of Laws in Taxation) as attorneys in the firm’s business division holding dual advanced degrees.

1. Keep receipts separate from the gifts.  Immediately take the receipts out of the bags and keep them in a separate place.  All too often during Christmas present theft claims people state that they purchased an item for cash and the receipt was still in the bag with the presents that were stolen.  By simply removing the receipt and keeping it in a safe place, if the gift is stolen, you can at least demonstrate you actually purchased it.
2. Have a receipt sent to your email.  Increasingly stores are offering the option of having a receipt sent to your email account, a paper receipt or both.  By getting both a paper receipt and emailed receipt, you can keep a backup copy electronically.
3. Do not pay cash.  From a financial advisor’s perspective, I’m sure this is bad advice.  From the perspective of documenting your purchases, using a credit or debit card is a great idea because it allows you to demonstrate that a purchase was actually made.
4. Swipe your store’s customer reward card.  Most stores these days have a rewards card of some type such as Best Buy or Toys R Us.  By swiping your card, in addition to whatever rewards you may receive, the store generally keeps a history of your purchases.  If necessary you can then request a copy of that record to demonstrate that you actually purchased that item from that store (as well as the date it was purchased and the amount you paid for it.)
5. Take a picture of the gifts.  Obviously you don’t need to take a picture of the Strawberry Shortcake doll you purchased for your son Mikey for $7.99, but for items that cost a significant amount and can be easily stolen (e.g. iPads, Laptops, etc.), take a quick photo with your phone, with not only the item, but something recognizable from your house (i.e. you holding it).

While hopefully you will never need to file the “Christmas present claim,” in the event you do have a Christmas theft, the suggestions above should help you make sure that little David and Teresa still have the wonderful Christmas you intended.

Even though their commercials might be catchy, I don’t recommend any credit reporting websites that require you to pay for a credit report, or enter a credit card number to see your report.  The Fair Credit Reporting Act (FCRA) requires that each of the three main credit reporting companies – Experian, Equifax, and TransUnion – provide you with one free report each year.  If you haven’t taken advantage of this benefit, now is the time to do so.  You can request a free credit report online, at www.annualcreditreport.com or by calling 1-877-322-8228.

Why is it important to check your credit reports?  Credit reports have a significant role in your financial well-being.  Credit reports are checked when you apply for insurance, employment, renting a home, and submit mortgage applications.  Furthermore, checking your credit report frequently is the best way to prevent identity theft.

If your credit report contains an inaccuracy, there is an internal procedure to appeal an error.  The first step is to contact the credit reporting company (Experian, Equifax, and TransUnion) in writing, and clearly identify the disputed items on the report.  It also helps to include copies of documents that support your position.  The credit reporting company is required to investigate the disputed portion of the credit report, usually within 30 days.  The credit reporting company is required to inform the consumer about the results of its investigation.

Finally, if the internal appeal process offers the consumer no relief, the FCRA does provide a private right of action for consumers to sue a credit reporting company for willful or negligent failure to comply with the FCRA.  If the company is deemed to have failed to comply with the FCRA, it will be liable for actual damages, litigation expenses, and reasonable attorney’s fees.