Drones, IUDs and Sex Tapes: High profile Northern Michigan court cases could set precedents

The COVID-19 pandemic has not stopped legal cases from proceeding through the courts. In northern Michigan, cases involving constitutional rights, personal health and technology could set precedents, while another netted a large settlement.

Long Lake Township v. Todd and Heather Maxon

On March 5, 2018, Todd Maxon was in his backyard when he heard a drone flying overhead. He had a suspicion who might be flying the remote aircraft, so he drove to the Long Lake Township Hall, where he found employees of Zero Gravity Aerial flying the unmanned aircraft from a baseball field 690 feet from his home.

Maxon, who is in court with Long Lake Township for allegedly violating a handful of township ordinances, contends that the township violated his Fourth Amendment constitutional right by hiring a third party to conduct surveillance of his property without a warrant for more than two years.

The Michigan Court of Appeals has agreed with the Maxons and has remanded the case to the Grand Traverse Circuit Court for further proceedings, throwing out all the drone footage evidence used in the case.

“I agree with the majority’s analysis of the Federal Aviation Administration regulation issue,” Court of Appeals Judge Kathleen Jansen wrote. “I respectively dissent, however, from the majority’s conclusion that this case is distinguishable from the otherwise binding precedent of the United States Supreme Court. I, too, am deeply concerned about the particularly intrusive nature of drones as compared to other aircraft with respect to the Fourth Amendment and the right to be free from unreasonable searches, but I do not believe that concern provides us a basis to sidestep the precedent by which we are bound.”

The township alleged that Maxon breached a 2018 settlement agreement by expanding the scope and use of his property that violated several township ordinances. The evidence used in the case was from drone photographs taken of Maxon’s property between 2017 and 2018. The township says the photographs show an increase in the number of vehicles, which violates the settlement agreement. The township contends that the Maxons are in violation of several zoning ordinances that do not allow the storage of junk or rubbish outside sealed containers, operating a salvage or junk yard and having impermissible accessory buildings.

Maxon responded that the vehicles and other items in question were not visible from the road and that the main evidence in the case is from aerial photographs taken by Zero Gravity Aerial, which was done without his permission, knowledge or consent.

Maxon filed a motion to suppress the evidence, but the court denied the motion on May 2, 2019 and said the drone surveillance was not an unconstitutional warrantless search of the Maxon’s property in violation of the Fourth Amendment.

William Burdette

“So it went to court. I filed a motion to suppress the drone evidence because it violated the Fourth Amendment. The court denied my motion and I filed leave to appeal and the Court of Appeals granted leave,” said Maxon’s Traverse City-based attorney William Burdette.

Burdette believes the case could pave the way for warrants to be required for drone surveillance.

“The Supreme Court over the years is grappling with how do we deal with Fourth Amendment analysis as technology progresses,” Burdette said.

 

 

$2 Million Short-Term Rental Settlement

In 2019, a Colorado family came to Antrim County for vacation. When they arrived at their Vrbo rental home near Shanty Creek Resorts, they put their sleeping infant son on the bottom bunk bed and started unpacking.

The children’s room had a baseboard electric heater, but it was hidden behind the bunk beds. Their infant son rolled over towards the wall and slid down on top of the electric heater. The child suffered first- and second-degree burns to 25% of his body.

The renters later discovered a large warning label on the baseboard heater: “CAUTION – heater should not be covered or blocked in any manner.”

In the spring of 2019, the family retained Smith & Johnson attorneys and claims were brought against HomeAway Holding Inc. (which had acquired Vrbo in 2006) for the rental house and against the property management company for the vacation home.

Tim Smith

Tim Smith of Traverse City-based Smith & Johnson noted the case was unique because of the pandemic; the parties were able to settle through pre-suit negotiations over a period of several months, Smith said.

All told, settlement was for $2 million via combined insurance policy limits.

“If you’re a homeowner and you’re going to start dabbling in short-term rentals or any kind of rentals, you want to be fully insured in case something horrible happens,” Smith said. “We were lucky enough in this case the homeowner not only had a policy in place insuring the premise, but after some further digging we were able to uncover another million through an umbrella policy.

 

Dawn Schoenfeld v. Teva Pharmaceuticals USA, Inc.; Teva Women’s Health, Inc. doing business as Teva Women’s Health, LLC; Teva Women’s Health, LLC; The Cooper Companies, Inc.; and Coopersurgical, Inc.

In 2014, Dawn Schoenfeld was implanted with a ParaGard IUD, an intrauterine drug that can provide long-term birth control up to 10 years without hormones. She wanted a ParaGard IUD because it was a reversible form of birth control that would allow her to conceive in the future. She said she had no idea the IUD could break off inside of her, causing injury.

In September 2017, she had the IUD removed when she discovered that she was pregnant. An ultrasound revealed that the ParaGard IUD was out of position.

Her healthcare provider attempted to remove the ParaGard IUD as instructed by the manufacturer. But despite following the instructions, the ParaGard IUD was retrieved with one arm missing. Schoenfeld’s physician even attempted to remove the ParaGard IUD arm via hysteroscope, but was unsuccessful. Ultimately, the broken arm was removed during the delivery of her child.

According to court documents filed with the Michigan Federal Court, ParaGard IUD has a propensity to break at the arms upon explant, resulting in serious injuries. The ParaGard IUD drug is a T-shaped plastic frame made of polyethylene and barium sulfate that is inserted into the uterus. Copper wire coiled around the IUD produces an inflammatory reaction that is toxic to sperm and egg. A monofilament polyethylene thread is tied through the tip, resulting in two white threads, which aid in the detection and removal of the drug.

According to court documents, Schoenfeld said she suffered from significant bodily and mental injuries, pain and suffering, mental anguish, disfigurement, embarrassment, inconvenience, loss of earnings and earning capacity, and medical expenses from the defective IUD.

She is seeking more than $75,000 in damages.

In the fall of 2020, Traverse City-based Smith & Johnson filed two of the first lawsuits in Michigan against the manufacturer of the ParaGard IUD in Michigan Federal Court.

Since 2010, the Food and Drug Administration has received more than 1,600 reports of ParaGard IUD breakage, with more than 700 cases classified as serious.

“The Teva defendants knew of these risks from the trials they performed, their post-marketing experience and complaints, third party studies, and their own analysis of these studies, but took no action to adequately warn or remedy the defects and instead concealed, suppressed and failed to disclose or fix this danger,” court documents state.

Schoenfeld’s case is filed against a host of companies throughout the United States that developed, manufactured, tested, labeled, packaged, distributed, marketed and/or sold the IUD ParaGard medical device.

ParaGard IUD is currently sold only in the United States and earned $168 million in revenue during a 12-month period ending June 30, 2017.

The case was recently consolidated with all the federal cases and sent to the Northern District of Georgia for handling for multi-district litigation.

“(The case) is very cutting-edge on the front end of litigation,” Smith said. “It is going to be a fairly large piece of work.”

People v. Jerry Gildner in the 33rd Circuit Court

A northern Michigan man who is charged with human trafficking enterprise after recording his wife having sex with another man and uploading the video to the internet has applied for an appeal after the court denied that his due process rights were violated, according to court documents.

On Jan. 11, 2019, Jerry Gildner was charged with human trafficking enterprise resulting in injury/commercial sexual activity, using a computer to commit a crime, and surveilling an unclothed person.

During a video recorded preliminary examination on Sept. 3, 2019, three witnesses testified for the prosecution, including investigating officer Detective Benjamin Speigl, the defendant’s ex-wife Chelsea Gildner, and Scott Ford, a man in the sex tape.

District Judge James Erhart did not issue an opinion in the case before he retired. Four months after the preliminary examination, Judge Valerie Snyder was assigned the case. She did not call another preliminary examination, and made her decision based on the videotaped record of evidence – a violation of due process, according to the defense attorney Michael Naughton of Traverse City-based North Coast Legal.

Michael Naughton

Naughton said that there was no evidence that his client received compensation for uploading the sex videos to the internet.

According to court documents, Mr. Gildner made the videos because they “turned him on,” Mrs. Gildner said in her testimony. When asked by the prosecutor if she knew if Mr. Gildner received money for uploading the videos, she responded, “He said he had. I … haven’t seen proof of it to my knowledge.”

Judge Snyder stated she believed that Mrs. Gildner testified that the defendant received $50 to $60 per video, though this statement was never made on the record. The defense attorney believes the judge gleaned the information from a police report.

The circuit court denied the motion to quash, as well as the decision and order on reconsideration, but did recognize the judge’s error. Instead, in its decision and order regarding Mr. Gildner’s motion for reconsideration, the trial court said the defense failed to raise objection at the time of the preliminary examination.

The trial court stated that it “appears that Judge Snyder conflated some information contained in the Affidavit of Probable Cause with the testimony at the preliminary examination.” However, the judge did not abuse her discretion and the “quantifying information from the Affidavit of Probable Cause clarifying the insubstantial amount of money allegedly received by the defendant was not necessary for the bind over decision,” according to court documents.

In October 2020, the defense claimed that the circuit court committed an error when it denied Mr. Gildner’s motion to quash and has appealed the circuit court’s order denying reconsideration and order denying Mr. Gildner’s motion to quash and remand the matter, so that a preliminary examination may be held before the magistrate presiding over the preliminary examination.

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