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Court of Appeals addressed alleged improprieties in verdict against Waste Management

A successful Michigan trial attorney once claimed, in essence, that "a milion dollar verdict is a $250,000.00 settlement that a defendant was too bone-headed to resolve."  The case of Freed v. Salas, Healthlink Medical Transportation Services and Waste Management of Michigan, is a case in point:  Waste Management rejected a settlement of $500,000.00 in this wrongful death case and wound up owing a judgment of more than 6 million dollars.  Attempting to recover from its error in judgment, Waste Management filed an appeal, arguing all manner of errors in the conduct of the trial. 

Bretton Freed was rendered a quadriplegiac in a motor vehicle accident when he was 18.  Seventeen years later, he was being transported home from the hospital (where he had been treated for pneumonia) by ambulance, when the ambulance was T-boned by a Waste Management truck.  He died four hours later, and his family eventually filed a wrongful death claim.  They argued that the Waste Management truck was speeding and that the ambulance ran a stop sign.

The ambulance company entered into a high-low settlement with the family and disclosed it to the court on the second day of trial.  After-the-fact, Waste Management argued that the judge should have disclosed this settlement to the jury--even though its attorneys never sought disclosure.  The Court noted that Waste Management had likely waived this appellate issue, but that in any event, since the high-low settlement did not change the posture or motivations of the ambulance company, failing to disclose it to the jury was not an abuse of discretion.

Waste Management also argued that the court erred in allowing expert medical testimony that Mr. Freed could feel pain and feel fear that he was dying.  The Court noted that the family had presented qualified, corroborated expert and lay testimony respecting Freed's connection with the environment around him and his medical limitations, leaving the issue of his "conscious pain and suffering" properly before the jury.  It also rejected, on principle, Waste Mangement's claim that a disabled Plaintiff's damages should be less than the wrongful death recovery awarded a previously health plaintiff.

The Defendant had also objected to testimony from reconstruction experts regarding Waste Management's driver's violation of the law and causation of the subject collision.  The Court held that Michigan Court Rules clearly allowed the experts to testify regarding the "ultimate issues" of fault. 

Lastly, Waste Management argued that the Court erred in allowing the plaintiff family to dismiss its driver without also dismissing Waste Management.  At the start of the trial, the Freed family offered to dismiss the driver, provided Waste Management would not use the dismissal as an argument that it, too, should be dismissed. (Under agency theory, the dismissal of an employee/agent operates as the dismissal of the employer:  the family's attorneys sought to hold Waste Management responsible as the owner of the vehicle, rather than as the employer of the driver.)  Waste Management's attorneys voiced no objection, provided the dismissal was "with prejudice."  On appeal, Waste Management argued, by analogy to medical malpractice claims, that dismissal of its driver should have resulted in its own immediate dismissal. 

The Court noted that the cases relied on by Waste Management did not apply where it failed to raise the issue before the case was sent to the jury.  It also noted a long-standing Michigan policy to treat statutory ownership liability as a theory of liability complete disparate from the principles of agency applicable to employment situations.  It held that the lower court had committed no abuse of discretion that would provide relief to Waste Management for having gambled and lost.

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