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Michigan plaintiffs’ lawyers charge that they and their clients aren’t getting a fair shake from the state appellate courts and that fewer lawsuits are being brought as a result. They assert that rulings by the Michigan Supreme Court and the Court of Appeals have strongly favored insurers, manufacturers and big business in general since Republican Gov. John Engler took office a decade ago with a promise to institute “tort reform.” As a result of new legislation and more conservative judges, they allege, the climate for plaintiffs’ lawyers in Michigan has become the worst of any state in the nation. But defense lawyers say that the courts are more balanced now after many years of leaning towards plaintiffs’ concerns and that plaintiffs’ attorneys are having trouble adapting. “It’s tough to see trends, but I’d say there are now an equal number of judges who are plaintiff- and defense-oriented,” said Jim Gross of Gross, Nemeth & Silverman in Detroit, treasurer of Michigan Defense Trial Counsel, an organization of defense lawyers. “Some say the courts moved from left to right, but my view is that they moved toward the center.” But Lawrence Charfoos, a plaintiffs’ lawyer at Charfoos & Christensen in Detroit, feels the pendulum has swung well to the right. Charfoos, a member of the Inner Circle, a nationwide group of 100 plaintiffs’ lawyers, said he “sends memos around the country saying that Michigan has become the poster child for insurance and manufacturers’ associations.” The state supreme court has a 5-2 Republican majority. Although elections for seats on the court are nonpartisan, the candidates are selected by political parties. The Court of Appeals has 28 judges, nominated and elected on a nonpartisan basis, who serve on three-judge panels around the state. But plaintiffs’ lawyers say Engler can appoint whomever he wants to fill vacancies on that court, with no hearings or confirmation required. A spokeswoman for the supreme court, Marcia McBrien, said judges would not respond to requests for comment. But she said such complaints about the courts arise every time an election approaches. Still, Jane Bailey, executive director of the Michigan Trial Lawyers Association, said, “The perception is that the scales of justice are tipped against people and in favor of big companies, insurers and government.” For example, as a result of tort reform, Michigan has severely limited products liability cases, Bailey said. It is the only state that gives immunity to drug companies for problems caused by their products if the drug has federal approval. Most members of her association, she said, feel it is best to avoid the appellate courts. One result is that there are more settlements and fewer cases being filed. She cited one study that found the number of civil lawsuits filed had fallen from 27,126 in 1994 to 21,460 in 2000. An analysis of 57 supreme court decisions between February and August 1999 found that, among other things, workers’ compensation claimants lost four cases out of four; personal injury plaintiffs lost 12 of 13 cases; criminal defendants lost 15 of 15 appeals; and insurance companies won eight cases out of eight. The analysis was done by Mary Ellen Gurewitz, general counsel for the Michigan AFL-CIO and a lawyer at Detroit’s Sachs, Waldman, O’Hare, Bogas & McIntosh. But McBrien, the supreme court spokeswoman, said the Gurewitz analysis ignored the fact that many of the plaintiffs listed as losing were actually large corporations. One of the plaintiffs’ attorneys most outspoken about the Michigan courts is Geoffrey Fieger of Fieger, Fieger, Schwartz & Kenney in Southfield, Mich. Fieger, who has handled many high-profile cases and ran unsuccessfully for governor, maintained that “individual judges have taken it upon themselves to impose their own philosophies, which are viciously anti-plaintiff.” Fieger himself has suffered a string of appellate setbacks. In the past 2-1/2 years, his clients have lost more than $60 million in jury verdicts on appeal, according to the Detroit Free Press. In an Oct. 8, ruling, the Court of Appeals overturned a $5.5 million verdict he won for a Detroit family whose 9-year-old son was run over by a van and killed. The court ruled, 2-1, that Fieger’s references to the jury about the donation of the dead child’s organs “was an emotional one … not relevant to any measure of damages” and was impermissible under Michigan law. Smith v. Northeast Guidance Center. Fieger’s response to the decision was to refer to the Michigan appellate courts as a “laughingstock … . They’ll do virtually anything to take away a big verdict.”

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