On the Case: Local attorneys face big cases this year
Sleepy northern Michigan is a misnomer when it comes to the courtroom. Cases involving OxyContin, Roundup, and controversial downstate attorney Geoffrey Fieger all have local connections, some with potentially big legal consequences.
The rise of high-profile cases could be linked to a sea change of the local legal scene, said attorney Tim Smith.
Smith moved to Traverse City in 1995 and since that time, he says has seen the area move from general legal expertise into what he calls “niche areas.”
“When I came back to town, my initial reaction after having practiced in Lansing was that the legal community was an awesome general practice group: drunk driving, divorces,” said Smith, who has a focused litigation practice spanning the country. “We still have fantastic general attorneys, but we are also seeing folks focusing in niche areas and excelling.”
With more attorneys specializing, the cases have bigger ramifications, from changing the way business is done in Michigan to changing how Michigan’s judges must act.
Here are a few of the cases turning heads in the legal world – all with ties to Traverse City.
Smith & Johnson: Purdue Pharma
In March, Purdue Pharma, the maker of OxyContin, settled for $270 million to avoid going to trial in a case brought by the state of Oklahoma. The decision could now spark other large settlements to more than 1,600 cases that the pharmaceutical company faces, which are being overseen by Federal Judge Dan Polster in Ohio.
The federal lawsuits have been filed by states, counties and cities to recover taxpayer money spent cleaning up the opioid epidemic, including first responders, 911, health departments, addiction treatment services, courts and jails. The suit also seeks court orders to require the pharmaceutical companies to curb the flow of opiates into communities by altering business practices.
Timothy Smith of Smith & Johnson represents the city of Traverse City, Grand Traverse County and the majority of the counties north of Clare and the Upper Peninsula in this litigation. The number of Michigan municipalities who have retained Smith & Johnson for this case has increased from nine cities and counties to 64.
In 2018, Smith attended a status conference along with about 200 attorneys from around the country in Cleveland, Ohio. The first of the federal cases in this multi-district litigation is scheduled to go to trial in October.
“[During the conference] the judge said something that I’ll never forget: That our executive and legislative branches have failed [to solve opioid addiction] and it’s up to us, the judicial branch,” said Smith. “We are taxed with fixing this.”
Bottom line; what’s compelling: “As a taxpayer, what’s interesting to me is not only are we trying to change the way these companies are doing business … it’s about recovering taxpayer money to the state and locally for things we need to support us. Rather than our money going to Eighth Street repairs, for example, it went to cleaning up the mess that was right in our backyard. In fact, some counties couldn’t afford to pay the examiners anymore because of all the opioid deaths. It’s an important thing this group of attorneys is doing.” – Tim Smith, Smith & Johnson
North Coast Legal: People of the State of Michigan v. Kelly Warren
Attorney Michael Naughton of North Coast Legal, PLC, is representing Kelly Warren, a seven-time offender for operating while intoxicated. Naughton is arguing that the circuit court violated Warren’s rights under both the Michigan rules of court and the due process guarantees of the U.S. and Michigan constitutions by failing to advise his client that he was facing consecutive sentencing prior to accepting his guilty plea.
“The case boils down to notice,” Naughton said. “It is a constitutional issue. It doesn’t have anything to do with his DUIs. He had two convictions that he was pleading to at the time … The due process clause of the U.S. constitution provides that in a criminal proceeding people must be given notice of what it is that they are facing.”
On Nov. 29, 2014, Warren was arrested and charged with one count of operating while intoxicated and one count of operating a motor vehicle with a suspended license. On June 6, 2015, while out on bond for the 2014 OWI, Warren was arrested and charged with another count of OWI and one count of operating a motor vehicle with a suspended license and one count of possession of an open alcohol container in a vehicle. At a plea hearing on both cases in Mecosta County Circuit Court, Warren pleaded guilty to both the 2014 OWI and the 2015 OWI in exchange for the prosecution dismissing the remaining charges.
Although the trial court informed Warren of the maximum sentence possible for each OWI before accepting his guilty plea, the court did not advise him that by pleading guilty he could potentially receive a consecutive sentence. The court sentenced Warren to 24 to 60 months for each conviction, with the sentences to be served consecutively.
Warren moved to withdraw his plea, arguing that it was not voluntary and understanding because at the time he pleaded he did not know that he could receive consecutive sentences. The trial court, however, denied the motion. The case went to the Michigan Supreme Court and then back to the court of appeals, where it was reviewed and lost 2-1. The case is now back in the Supreme Court.
Naughton said that other states have decided in favor of informing defendants. “Other states I have cited have taken the position that someone should be informed,” he said.
In June, the Michigan Supreme Court invited the filing of amicus curiae briefs from the Prosecuting Attorneys Association of Michigan, Criminal Defense Attorneys of Michigan and any interested persons or groups that may have opinions about how the case should be decided. Naughton predicts that an oral argument date for the case will be set by this fall.
“Whichever way it goes, it has already made a law under the court of appeals,” Naughton said. “Whether they agree with me or disagree, if it’s a published opinion, that opinion will then become law in Michigan.”
Bottom line; what’s compelling: “It’s a constitutional issue and it’s the first time due process has been argued in the state of Michigan. No matter which way it goes, it will change how sentencing will take place in Michigan.” – Michael Naughton, North Coast Legal
Jay Zelenock Law Firm: 326 Land Development v. City of Traverse City
A Traverse City developer filed a declaratory judgment action seeking to invalidate a voter proposal requiring an election before the city approves the construction of buildings over a certain height. In 2017, the 13th Circuit Court dismissed the case, stating that it was not yet ripe for judicial review.
326 Land Development LLC is now challenging the refusal by voters in 2018 for a request to let city commissioners vote on a special land use permit for a 100-foot building. They are also challenging the court’s decision to allow a concerned citizens group, Save Our Downtown, to intervene along with city defendants.
At the heart of the case is Proposition 3 – passed by voters in 2016 – requiring the approval by a majority of electors at a regular or special election before the city approves the construction of a building with a height of more than 60 feet.
“We are defending along with the city,” said lead counsel Jay Zelenock, who represents Save Our Downtown. “To have city leaders suddenly become enthralled with tall buildings was a concern for a lot of people and certainly for my client, Save Our Downtown.”
326 Land Company, LLC owns property in downtown Traverse City, where it had planned to develop a 100-foot-tall mixed-use residential building. In this district, buildings must be at least 30 feet tall, but to exceed 60 feet the developer must apply for a special land use permit.
He added that local residents took up a petition drive and limited the authority of city officials to make these types of subjective and discretionary decisions.
In June, a hearing was slated for cross motions for summary dispositions where the case could be decided. If the case is not decided in favor of 326 Land Company, Zelenock said he wouldn’t be surprised if the case is appealed in the coming year.
“There was prior litigation and we prevailed in the court of appeals. Now this is kind of round two of litigation … I believe the court will decide the issues [in June] and certainly I believe the city will prevail,” Zelenock said. “And then if they decide to go to the court of appeals they will have that option. If you look at the pattern so far, they did [appeal] in the prior case.”
Bottom line; what’s compelling: “I think that ultimately the people’s decision to amend the city charter to allow people greater input into decisions that matter will be upheld in the courts. I think that’s a very healthy and beneficial thing for the city. We all benefit from a greater voice expressed about things we all care about. The legal ramification will be a greater recognition through the court process that citizens do have a right to exercise control over decisions they don’t approve of and have a direct voice in city charters themselves.” – Jay Zelenock, Jay Zelenock Law Firm
Smith & Johnson: Monsanto’s Roundup Weed & Grass Killer
In May, a $2.055 billion verdict was awarded in a favor of a California couple who allege their cancer was caused by Monsanto’s weed killer Roundup.
Now the agrochemical company based in St. Louis, Missouri faces thousands of similar cases that are pending at the federal and state levels.
Among those cases is potentially a Michigan cancer survivor, who is represented by Smith & Johnson. The survivor claims that his non-Hodgkin’s lymphoma was caused by the use of Roundup. The recent settlements are considered a bellwether trial to help determine the range of damages and define settlement options for the more than 760 other federal cases currently pending, according to Smith & Johnson. The law firm is now in the investigation and interview process with people who have been exposed to the weed killer.
By the end of this year, Smith & Johnson plans to officially file on behalf of their clients. “There is certain criterion for this type of case, as far as level of exposure and type of cancer,” lawyer Tim Smith said. “There [are] a lot of phone calls and medical record reviews.”
Smith says he is also seeing deer hunters take action against Monsanto. “In northern Michigan, the ones we are seeing are deer hunters,” he said. “At their deer camps, they are doing this quality deer management in the spring and are spraying Roundup all over their food plots.”
Bottom line; what’s compelling: “What’s most interesting to me is that typically the claimants are in landscaping or in outdoor type work where there’s a lot of exposure. However, your typical northern Michigan [Quality Deer Management Association] directives have been a big thing since 1995; people are trying to manage the deer population on hunting grounds. It’s an interesting approach to hunting. A big part of that is the food plots: In springtime, you clear an area for a food plot and the first thing you do is knock down all the weeds. In my first case, my client cleared his weeds every year with the backpack sprayer and had significant exposure to this very dangerous chemical. It’s quite concerning to me because [as a hunter] I do the same thing.” – Tim Smith, Smith & Johnson
Parsons Law Firm: Goodwin Family v. Northwest Michigan Fair Association
In 2018, the Parsons Law Firm obtained a $2 million jury verdict on behalf of a family whose son was killed at the Northwest Michigan Fair in 2012. Ezekiel Goodwin, 6, was riding his bicycle on the bike path to the barns to prepare his pet horse to show at Special Kids Day. Tad Thompson drove his truck down the bike path and ran over the boy, killing him. The law firm argued that the fair allowed vehicles on the bike path and failed to implement feasible alternatives that would have alleviated any risks. The fair argued that the father, Jeff Goodwin, was at fault for not attending to his son.
The court of appeals threw out the verdict and has ordered a new trial. The court said jurors should be able to consider possible negligence by the child’s father, who allowed him to ride alone. According to reports, at the time of the trial a Grand Traverse County judge instructed jurors not to consider it.
“It is a case about the operation of a premise,” said Grant Parsons, lawyer for the Goodwin family. “We won the case at trial. There was a $2 million verdict. The fair appealed it and the Michigan Court of Appeals reversed the verdict and sent it back for another trial.”
The Goodwins reached a settlement with Thompson, the driver of the vehicle, who was dismissed from the trial and is not involved in the appeal. The new trial was slated for June 12.
Bottom line; what’s compelling: “Every case starts with the same question: How did it happen and how could it be prevented? What we do is start with grief and incomprehension, and search for intelligence and meaning. The purpose of civil law is to learn lessons from individual tragedy and apply those lessons to benefit society as a whole.
“There have already been ramifications from this case, because there is now a Court of Appeals opinion that lets other lawyers know 1) what happened, 2) what the applicable law is, and 3) what safety principles are involved. We have changed the way this Fair and other fairs operate.
“The bottom line: Judge Rodgers called Ezekiel’s trial ‘the most emotional case of my career as a judge.’ We can’t bring Zeke back, but we can save other Ezekiels, now that we understand the flaws in the Fair’s operation that led to his death, as well as the potential fixes that will prevent it from happening again. If your readers had sat through the first trial, they would have seen a very specific list of safety measures that could have and should have been used, and would have prevented Zeke’s death. “Learning from tragedy and helping others as a result of the loss is a way to re-establish belief in the meaningfulness of life.” – Grant Parsons, Parsons Law Firm
Duncan L. Clinch Marina Drowning Update: Knudsen v. Fieger
On Aug. 15, 2011, Michael Knudsen jumped into the water off dock F at Clinch Park Marina in Grand Traverse Bay and drowned because of electricity leaking into the water from the dock. His friend Zachary Kott-Millard was injured trying to save Knudsen. At the time, the Knudsen’s estate and Kott-Millard filed two separate cases against Traverse City, the marina, dockmaster Barry Smith, Traverse City Director of Public Services Robert Cole, Grand Traverse County employees Phillip Nault and Dale Stevens, and other non-governmental defendants who had performed work on the dock. However, the city and marina were dismissed from those cases based on state municipal immunity.
Ultimately, the $50 million case was lost, due to Detroit-area attorney Geoffrey Fieger not pleading a claim based on admiralty law that potentially could have won the case. The family then sued Geoffrey Fieger and Fieger Law PC for malpractice, but Judge Thomas Power dismissed the case on grounds that the attorney was just exercising judgment. However, the court of appeals reversed Judge Powers’ ruling and said it wasn’t judgment, rather a mistake of law. Now, the case is pending in Michigan’s Supreme Court on Fieger’s motion to appeal it further. He doesn’t have an automatic right to appeal, because the Supreme Court has to grant him the right to appeal.