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Court refuses to overturn jury verdict, despite Defendant employer's apparent misconduct

In a case of local interest, the Court of Appeals this week upheld a jury verdict against the former Director of Manistee-Benzie Community Mental Health.  The director was fired after allegedly writing a letter to the Board threatening to report violations of the law by the Board and its member, Dennis Risser.  Moran sued for wrongful discharge, raising issues including whether his firing violated his contract; whether his firing denied his legitimate expectation of continued employment; whether his firing violated the Open Meetings Act; and whether the jury's verdict should be set aside due because new found evidence supported the claim that the Board had built its Whistleblower Protection Act defense on a falsehood.

At the time of trial, the Judge decided several issues without jury input and the Court of Appeals held that his decision was sound.  It ruled that Moran's contract allowed the Board to terminate Moran "for any reason" if it paid a severance assessment, which it did, and that the Board was not obligated to publicize its reason.  It also ruled that the Plaintiff had not met his burden of demonstrating that the Board had violated the OMA by deliberating in private to devise a method of terminating Moran's employment. The high court agreed with the trial judge that Moran had no property right in his job, or expectation of continued employment under Michgian law.

The Whistleblower Protection Act presented a more complicated issue.  Moran claimed he had written the Board on April 18, 2007, threatening to expose wrongful conduct.  Moran argued his firing on June 14 was in retaliation for this letter.  The Board's Counsel built the Board's defense on the argument that Moran never delivered the April 18 letter to the Board, and instead had manufactured the letter after his termination with a false date.  During the trial, when the Board's IT operator testified, questions were raised about the Board's defense and after the trial, forensic examination of the Board's computer system strongly suggested that the Board's hard-drive contained a letter  created on April 18 which had never been changed.

Moran's attorneys asked the trial judge to overturn the verdict, charging that the defense suggeston that Moran fraudulently created and back-dated the April 18 was a falsehood maintained by the Board contrary to the Board's own records.  The judge allowed fairly complete discovery of the evidence tampering issue, however, he ultimately concluded that Moran's attorneys had not adequately investigated the issue before and during trial, and had not met the high standard of proof necessary to overturn the jury's verdict.

The Court of Appeals sustained this ruling.  Despite what appears to be a compelling suggestion both of evidence tampering and the defense's cynical presentation of a false and unwarranted claim of fraud by Moran, the Court held that the evidence did not support over-turning the jury verdict.  It pointed to the fact that Plaintiff counsel failed to timely renew his demand for the deposition of the late-disclosed IT witness, which the trial judge had invited counsel to do; the fact that Plaintiff counsel failed to seek an opportunity mid-trial to investigate the existence of the April 18 letter;  and Moran's counsel's failure to demand a copy of the PDF file for April 18 when it was disclosed by the IT witness on the stand. [And before it --and the Agency back-up files--were destroyed.]  In essence, the Court held that any potential misconduct by the Board or its attorneys was excused by Moran's counsel's lack of "due diligence."

There was a time in Michigan when any hint of evidence tampering or misconduct was considered intolerable and inexcusable.  If that policy still exists in Michigan's special-interest dominated appellate courts, it seems to apply only to suspicions of misconduct by employees, injury victims and consumers.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
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