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Gursten: How to protect car crash victims if ‘Zichichi’ becomes next ‘Kreiner’

May 11, 2018 by Steven M. Gursten

Car accident attorney Steven Gursten discusses strategies to prevent auto lawsuits from being dismissed if Zichichi v. Mull proves to be ‘the next Kreiner’

Michigan Auto Law attorney Steve Gursten: Is 'Zichichi' the next 'Kreiner'?
Michigan Auto Law attorney Steve Gursten during his recent presentation, “How to conduct an effective cross examination of an expert witness in an auto TBI case,” at the Legal Latitudes legal seminar, “Frontiers in Advocacy: Traumatic Brain Injury,” in Nashville, TN.

Today, I’ll be discussing the recent disaster of a ruling in Zichichi v. Mull, where both the trial court and the Michigan Court of Appeals completely ignored the law they are required to follow, dismissing a case for an innocent and seriously injured Detroit car accident victim.

Mr. Zichichi suffered multiple fractures, required surgery and screws implanted into bone, and suffered a traumatic brain injury. Judge Susan Hubbard dismissed the case, saying he wasn’t injured badly enough.

Then, just 3 days ago, in a case called Hollings v. O’Brien, the Michigan Court of Appeals reversed this same judge, saying Judge Hubbard committed error in dismissing the case of another Detroit car accident victim.

This time, Mr. Hollings suffered a disc bulge and a disc herniation and tears in his knees. He required assistance with basic tasks of daily living, including bathing. All told, his injuries impaired his daily life for approximately 7 months from when he was hit by a truck to when he made a good medical recovery and no longer required assistance and help.

These two cases, and a third called Patrick v. Turkelson, have caused considerable chaos, with many attorneys and judges asking ourselves:

Is Zichichi v. Mull  the next Kreiner?

I’ll be reviewing all three cases during my presentation, “Zichichi v. Mull: Strategies to Save Cases if the Auto Threshold Law Changes Again,” at the Michigan Association for Justice’s 73rd Annual Convention at the Westin Book Cadillac in Detroit, MI, on May 11, 2018.

Having strategies for dealing with a draconian change in the auto accident injury threshold law – much like Kreiner did in 2004, the result of which was to lock the courthouse doors to thousands of injured victims desperately in need of justice – is vital.

Attorneys need to know what they can do NOW to protect the people we help and to be ready if the law changes to protect our clients.

Of course, preparation is the best defense, but given the absurdity of the Zichichi ruling, I’m hoping that my presentation will prove to be largely academic and this example of judicial activism will be corrected by the Michigan Supreme Court.

As I noted in my blog post, “Zichichi v. Mull is worst example of ‘Judge made law,’ sows confusion for car accident attorneys and judges”:

  • “Rather than following and applying the law as they are required to do, one Wayne County trial judge and three appellate judges in Zichichi v. Mull decided to make up their own law. To do this, they created a completely new “judge made law” to ignore and disregard what the Michigan Supreme Court said in McCormick v. Carrier so they could throw out a serious car accident injury lawsuit involving multiple fractures, a surgery, screws implanted into bone, and a closed head injury.”
  • “Had the judges followed the law as they are required to do, the obvious conclusion is that Joseph Zichichi was either entitled to a ruling of summary disposition in his favor on serious impairment of body function as a matter of law, or, at minimum, that the nature and extent of Mr. Zichichi’s multiple fractures, surgery and screws and hardware implanted in his bone created a material question of fact that requires under our law to have a jury decide the matter. That is what Michigan law requires.”
  • “But that was before Judge Susan Hubbard of the Wayne County Circuit Court decided to assume the role of judge, jury, and executioner in order to clear a case involving a completely innocent and seriously injured car accident victim from her court docket.”
  • “To say this ruling offends the core principles of our justice system and our Constitution is not an overstatement. Every lawyer and every judge in Michigan should be shaken and very concerned by this ruling.”
  • “No matter which side of the political fence you sit on, no matter whether you are a lawyer who helps people injured in car accidents or a lawyer who works for the insurance companies defending these cases, no matter if you tend to be more liberal or more conservative in your judicial views, this was an impossible result to reach if these judges had followed binding Michigan law as they are required to do.”

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