If I could ask Pete Kuhnmuench one question, it would be, “Why?”

Mr. Kuhnmuench is the spokesman for the Insurance Institute of Michigan, a lobbying group that represents 90 insurance companies doing business in Michigan, and one that has been threatening insurance rate increases for Michigan drivers after the Michigan Supreme Court corrected the state’s auto accident law  in McCormick v. Carrier.

Within hours of McCormick, the insurance companies that he represents were threatening to raise auto insurance rates on Michigan drivers again, despite the record-breaking profits they continue to rake in each year in Michigan.

As a personal injury lawyer, and one that specializes in protecting victims of car accidents and truck accidents, I have blogged about these unwarranted threats from Michigan insurance companies. There’s absolutely no reason whatsoever for auto insurance companies to raise No-Fault insurance premiums in Michigan. The numbers don’t lie.

Here’s the math:

* According to U.S. Secretary of Transportation Ray LaHood, Michigan’s 97.2 percent seat belt use is the highest in the U.S.

* In Michigan, there has been a 54 percent decrease in serious auto accidents.

* In a national survey done by Allstate called “America’s Most Improved-Motorists,” Allstate compared all three years of report data to identify cities with the most-improved drivers since 2005. A flock of Michigan cities landed in the top five slots, including: Sterling Heights, Detroit, Grand Rapids, Warren and in first place, Flint.

* With remarkable progress, Flint improved its average years between car accidents from 9.8 years in 2005 to 13.4 years or 25.4 percent better than the national medium for car accidents in 2007. Flint leaped from the number 73 spot in 2005 to number three overall in 2007 in three years based upon this dramatic fall in motor vehicle accidents.

* Michigan also has, at 1.37 traffic deaths per million vehicle miles, the lowest number of traffic accident deaths ever recorded.

* Finally, car accidents involving seniors in Michigan are now at their lowest levels since the 1960’s.

The numbers don’t add up, do they Pete?

- Steve Gursten is recognized as one of the nation’s top lawyers handling serious car and truck accident injury cases and auto insurance No-Fault litigation. Steve speaks and writes extensively on McCormick v. Carrier and Michigan’s No-Fault laws. He is available for comment on Michigan’s new auto accident law.

Related information:

Dealing with Michigan auto insurance companies

Michigan Auto Law is the leading largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state for more than 50 years. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights to better serve you. Call (800) 777-0028 for a free consultation with an auto accident lawyer. We can help.

Below is a testimonial from Tony Harris in his own words. The most important thing that I tell clients and personal injury lawyers alike is that a truck accident is different from a car accident.

Unfortunately, very few personal injury lawyers have much experience litigating truck accident cases. One of the key differences with truck accident cases is that there can be many layers of insurance coverage. Some of these layers are hidden. There can also be multiple liable parties involved, and it is not unusual to see trucking companies setting up shell and dummy corporations in an attempt to limit liability if they cause a catastrophic personal injury or wrongful death accident. This is becoming increasingly common with many of the larger truck companies. That’s one of the reasons it’s so important that truck accident victims seek help from lawyers with extensive experience in finding all the insurance and liable entities in these complicated cases.

Tony Harris is from Newago, Michigan. Tony discusses the tragic story of how his girlfriend was run over and killed by a negligent trucker, and how I was able to make sure that her family received all the  insurance that was available in this tragic wrongful death truck accident case.

Here’s what Tony said:

“My lawyer Steve Gursten came into my life under the most devastating circumstances. One day, my girlfriend was driving to pick me up from work when she ran out of gas on I-75. As she was putting gas in her car on the side of the highway, a semi-truck veered from its lane and hit and killed her.

My deceased girlfriend’s family was not satisfied with the money the insurance adjuster was offering, so I called Michigan Auto Law to see if there were more benefits available for her children. Steve Gursten looked tirelessly for more insurance and he did it out of kindness — he didn’t charge me a dime. I appreciated that so much.

Steve also treated me with dignity and he was always there to answer my questions. I would recommend him for anybody who needs help with a truck accident in Michigan, because he is a polite man, a man of his word and he does what he says.

You don’t get that with most lawyers. Most other truck accident lawyers wanted to take 33 percent or charge $200 an hour, and didn’t even care if insurance was there. Losing my girlfriend to a truck accident caused by a trucker who may have been asleep at the wheel was horrible. But at least now I had can lay my head on my pillow, knowing I did the right thing by getting all of the insurance possible for her family. I wouldn’t have been able to do this without Steve Gursten’s generous help.”

-    Steven M. Gursten is a partner of Michigan Auto Law. He is past president of the American Association for Justice Truck Litigation Group, and has received the top reported trial verdict in Michigan for truck accidents. Steve was named a Michigan Lawyers Weekly Leader in the Law for his efforts in promoting truck safety in Michigan and throughout the country.

Related information about truck accidents:

Michigan truck accident FAQs

200,000 truck drivers suspected of using drugs and alcohol

How to find the best lawyer for your truck accident case

Michigan Auto Law exclusively handles car accident, truck accident and motorcycle accident cases throughout the entire state of Michigan. We have offices in Farmington Hills, Sterling Heights, Ann Arbor, Grand Rapids and Detroit to better serve you. Call (800) 777-0028 for a free consultation from one of our expert attorneys.

As a personal injury lawyer who writes a safety blog, I’m always trying to find the latest in safe driving and car accident prevention. And this new iPhone application called Michigan DUI Tracker looks like a great addition (I’m going to discuss recent drunk driving statistics in Michigan below).

This drunk driving safety app could keep a person from driving drunk on Michigan roads and causing a totally preventable car accident or truck accident. And the iPhone application is free.

The drunk driving prevention app  - which Michigan officials are calling the first of its kind -  uses the phone’s GPS system to zero in on the user’s location, reminds the person that the police can be anywhere in the vicinity, and gives options for calling a taxi or a friend for a safe and sober ride.

I’ve represented too many families of people who were senselessly killed in car crashes caused by drunk drivers, and I definitely support this application. Everyone has a phone, and this safety app is a simple reminder that you might not be as sober as you think you are. It can make you think twice before getting behind the wheel after drinking and putting yourself – and all other drivers and families at risk.

This application also alerts the user of his or her “arrest threat level,” which increases as the night progresses and when law enforcement is particularly scouting for drunk driving. If this is used correctly, as a reminder to avoid drunk driving, then this is a good safety feature. I hope this isn’t just an appeal to young drivers looking to steer clear of trouble, but a reminder not to drive at all.

Anne Readett, spokeswoman for the Michigan Office of Highway Safety Planning, said there’s a big problem with traffic deaths between midnight and 3 a.m. Car crashes involving alcohol are eight times more likely to be fatal and four times more likely to cause serious personal injury than those involving people who are not under the influence of alcohol.

The free app coincides with the statewide “Drunk Driving. Over the Limit. Under Arrest” crackdown. The effort involves 30 counties across the state, including Kent County (Grand Rapids), Allegan County and Ottawa County.

Michigan drunk driving statistics

In 2008, 34 percent of all car accident fatalities in Michigan were related to drunk driving. A breakdown:

* There were 262 fatal accidents in Michigan where at least one driver had a BAC of 0.8 percent or above.

*  There were 282 people were killed in Michigan in auto accidents where at least one driver had a BAC of 0.8 percent or above.

*  There were 49 people were killed in Michigan in accidents where at least one driver had a BAC between 0.01 percent and 0.07 percent.

*  There were 331 total deaths caused in Michigan where at least one driver had a BAC of 0.01 percent or above.

- US Dept. of Transportation, National Highway Traffic Safety Administration

If you get caught drunk driving in Michigan

Those convicted of a first drunken driving offense could get as much as:

*  93 days in jail and,

* Up to $500 in fines and,

* 360 hours of community service and,

* Six points on their driver’s license and,

* Up to 180 days with a suspended license.

Even if you decide not to download this iPhone application, please, never drink and drive.

- Steven M. Gursten is recognized as one of the nation’s top lawyers in serious car and truck accident personal injury cases and auto insurance No-Fault litigation. He writes extensively about safe driving and auto accident law, and is available for comment.

Related information:

Avoiding car accidents in Michigan: Safe driving techniques

Drug and alcohol abuse among Michigan truckers

Mother of boy injured by drunk driver in Michigan speaks out

Michigan Auto Law is the leading and largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state. Our lawyers have received the largest reported jury verdict for an auto accident case in Michigan in six of the past nine years, including 2009, according to published reports. Call (800) 777-0028 for a free consultation with an personal injury lawyer - anytime. We can help.

The scope of my blog is on news, tips and help for auto accident victims and drivers in Michigan. Today, I’ve invited  Jocelyn Benson, the  Democratic candidate running for Michigan Secretary of State to guest blog about an important idea for Michigan drivers. Professor Benson is an attorney who lives in Detroit. She has been an advocate for efficient and transparent government.

Jocelyn Benson is currently a law professor at Wayne State University Law School (where I taught an advocacy class this year with Court of Appeals Judge Elizabeth Gleicher, and where I will be speaking later this month on personal injury and auto accident law to the law students).  I think Professor Benson has some exciting ideas on improving service for Michigan drivers, protecting pocketbooks, and making sure that elected officials work for citizens - not corporate and special interests.

Recently, she announced her plan to eliminate the driver responsibility fee that’s currently imposed by the Michigan Secretary of State. The Secretary of State is primarily responsible for collecting the fee, which has been widely criticized by judges, legislators and taxpayers.

Jocelyn wants people to know the driver responsibility fee is discriminatory and oppressive, and it has harmed residents throughout our state. She was quoted saying, “From Cheboygan, to Charlevoix, to Muskegon to Detroit, I’ve heard painful stories of residents losing their jobs as a result of this fee.”

The driver responsibility fee was instituted in 2004 to encourage drivers to operate more responsibly and help eradicate the state’s budget deficit. But instead, since passage of the fee, the number of drivers with suspended licenses has increased more than 40 percent and there has been a 26 percent increase in the number of people fleeing the scene of car accidents in Michigan. The numbers of hit and runs and people fleeing serious car accidents without insurance is even higher in larger metro areas like Detroit and Flint.

Jocelyn said this legislation has not accomplished its goals and must be replaced with more effective solutions for protecting the safety of our roads and drivers; such as possibly requiring bad drivers to attend classes to improve their habits. As a safety advocate, I think this is one of the most important ideas I’ve come across to reduce the numbers of auto accidents in this state.

- Steve Gursten is recognized as one of the nation’s top personal injury lawyers in serious car and truck accident injury cases and auto insurance No-Fault litigation. Michigan Auto Law has received the largest reported jury verdict for a car accident case in Michigan in six of the past nine years, including 2009, according to published reports.

Related information:

Auto accident checklist: Before a car accident

17 mistakes that can kill your car accident case

Michigan Auto Law is the largest law firm exclusively handling auto accident cases and No-Fault insurance law throughout the entire state. We have helped countless personal injury victims recover all of the No-Fault insurance benefits they’re entitled to, and we can do the same for you. Call (800) 777-0028 for a free consultation with an insurance lawyer.

This is part two on topics and ideas that I’ll be covering today and tomorrow at the No-Fault Institute Seminar for the Michigan Association for Justice in Southfield. Yesterday, I discussed the objective manifestation requirement and the need to change Michigan’s jury instruction, now that the definition of objective manifestation has been changed with McCormick v. Carrier.  I also discussed how personal injury attorneys would do well to still provide objective proof of physical injuries at trial, even if the legal requirement for doing so has changed after McCormick.

Today, I want to talk more about  the jury instruction from M Civ JI 36.11, and specifically whether it should be changed and what exactly the phrase “…affects the plaintiff’s general ability to lead [his/her] normal life” really means today after McCormick v. Carrier.

Understanding this part of the model civil jury instruction in auto accident cases is really the key to personal injury attorneys obtaining full and fair damages on behalf of your clients.

First, the Michigan model civil jury instruction on 3rd party auto negligence cases clearly must be changed immediately.  I am currently serving on a committee with Jim Borin, George Sinas, Judge Shapiro, Judge Redford and James Gross to discuss whether a change is now necessary. My initial impression is that the objective manifestation part of the jury instruction must now be changed. But I also feel that it is currently premature to change the rest of the jury instruction. There are currently eight pending auto accident cases cases that will shortly flesh out in far more detail what our new auto threshold law is.  I should state that my initial feeling is that, unless there is a significant development with these eight pending cases, the rest of the instruction should stay as it currently reads.

Even though the rest of the jury instruction should probably stay as is, that does not mean that car accident attorneys should not explain in closing arguments what the jury instruction means.  As the Michigan Supreme Court in McCormick v. Carrier has now defined “affects” and “general ability,” plaintiff attorneys can properly tell a jury that an injury caused by a motor vehicle accident must influence some of the plaintiff’s capacity to live in his or normal manner of living (slip opinion, p. 34), and that the plaintiff establish that the impairment has affected or influenced “some” of the injured person’s capacity to lead his normal life (slip opinion, p. 19).

Lessons for Michigan personal injury attorneys: understanding the difference between pain and impairment

Lawyers have a terrible time separating pain from impairment. But they are two very different concepts.  And as a generalization, impairment matters more to juries than does complaints of pain when it comes to recovering pain and suffering damages in auto accident injury cases.  Jurors - even less sympathetic jurors who may disregard pain complaints - will still give money based upon the degree of impairment, and the more impairment you as a lawyer can show and document after a car accident, the more likely you are to achieve a fair result for your client.

Pain is also much harder to prove.  And the emerging social science research shows that many jurors, especially younger ones, do not appreciate accident victim’s experiences with pain from injuries. They seem less sympathetic, and as you will discover if you run focus groups, very  young jurors don’t seem to care much about pain.  Pain is also intangible, which means that what pain might mean to one juror might be very different from what it means to another.

This is the key: although jurors may not be as sympathetic about pain, they will compensate for impairment.  The more impairment you as a personal injury lawyer can demonstrate on behalf of our injured client, the better the trial verdict.

Why personal injury attorneys should still focus on Kreiner v. Fischer

Which brings us back to Kreiner v. Fischer, even now in this new era of McCormick v. Carrier and the new auto accident threshold law in Michigan.

Personal injury lawyers would do well to relentlessly focus on the five Kreiner factors, even now, and even though it is no longer the law in Michigan if they want to achieve the fullest and fairest result for their clients.  The five “non-exclusive” impairment factors from Kreiner are:

1. Nature and extent of the impairment;
2. Type and length of treatment required;
3. Duration of the impairment;
4. Extent of any residual impairment; and
5. Prognosis for eventual recovery.

I’ve written extensively on each of these factors in the past. These factors remain the key for personal injury lawyers to obtaining a significant trial verdict.

Even if these factors are no longer necessary to prove after McCormick v. Carrier, providing proofs to meet each one will certainly significantly increase the potential trial verdict on behalf of your client.

Last tip for personal injury attorneys: there is no magic

There really is no magic explanation as to why juries return more significant verdicts in some auto accident cases but not in others.  Some personal injury attorneys shake their head and attribute it to magic, chance or luck when they hear about an outstanding result on what sounds at first like a “small case.”  But if you’ve understood what I’m saying, you now understand that the case only appeared small, but likely the  impairment was significant.

For example, the lawyers in my law firm, including myself, have been very fortunate in recent years to have six separate trial jury verdicts of a million dollars or more on what probably appeared to be very small cases.  These six cases were all auto accident cases, and cases where the defense offer before trial from the insurance companies was between $0 and $25,000.  Essentially, these were cases we were forced to trial on because the defense was taking such unreasonable stands on valuing these cases.  So how could the insurance claims adjusters have been so wrong in their evaluation of these seemingly “small” auto accident injury cases?

If there is no magic, why did these trial results occur?

The answer is that the insurance companies in these auto cases made the terrible mistake - which is a mistake repeated all the time by insurance company claims adjusters and sometimes trial court judges as well- of focusing only on the injury, and ignoring the impairment.  If there are injuries they do not like, or have little appreciation for, such as muscle spasms,  bulging disks, “soft tissue injuries,” connective tissue and whiplash injuries, they will offer very little money on these types of injury cases. Mild traumatic brain injury cases, especially those of momentary loss of consciousness and delay in diagnosis and treatment, also fall into this category.

The mistake they are making is looking at the personal injury itself and assuming it is of limited value.
This is the same mistake that lawyers may be making now after McCormick, asking if “whiplash cases” or “soft tissue” personal injury cases will now be viable cases or not.  The answer is maybe - it depends upon the amount of  impairment!  These are exactly the types of cases where decisions must be made on a case-by-case basis, based upon the effect on the car accident victim by his or her attorney.

Again, the mistake is assuming that these must be “small” injuries of inconsequential impairment.  Take “soft tissue cases” for example. There are more than 40 well-respected, peer-reviewed journal articles today that say these types of personal injury can be permanent and cause permanent pain. For instance, Reggie White, the famed “Minister of Defense,” was one of the  toughest football players of all time. But Reggie White had to quit playing football because of a little “soft tissue” minor bulging disc in his neck.

This mistake that insurance claims adjusters make all the time when evaluating car accident claims, is to focus on the injury only and to ignore completely the impairment. If there is an objectively manifested impairment of an important body function that has affected - now “some effect” and “influences some of plaintiff’s capacity to live his or her normal life” - that should be enough to at least create a question of fact.  Again, it must be a case-by-case basis.

My formula for success for personal injury attorneys evaluating auto accident cases

Here’s my formula for success for  auto accident cases.  There is no such thing as a small case.  There is such a thing as small impairments.

“Small cases” with big impairments and likable and credible clients equals a big case and likely, a big result.

Small offers of $0 to $25,000 on “small cases” with big impairments and likable and credible clients (usually) equal big trial verdicts.

- Steve Gursten is recognized as one of the nation’s top personal injury attorneys handling serious car and truck accident injury cases and auto insurance No-Fault litigation. He is co-chair of the Michigan Association for Justice Auto Accident No-Fault Committee. Michigan Auto Law has the highest auto accident jury verdict in Michigan in six of the past nine years, according to Michigan Lawyers Weekly.

Related information:

McCormick v. Carrier blogs

The insurance defense perspective on McCormick v. Carrier

Told you have no case? McCormick restores car accident victim legal rights

Michigan Auto Law is the leading largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state for more than 50 years. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights to better serve you.

Michigan has an important new auto accident law that will result in enormous changes in the months ahead for car accident victims, personal injury lawyers for both the plaintiff and defense of these accident claims, and the auto insurance companies in this state. The new law was released by the Michigan Supreme Court on August 1, 2010, and the case is McCormick v. Carrier.

The ruling has overturned Michigan’s previous (and the nation’s harshest) auto accident threshold law. This new interpretation of Michigan’s auto accident threshold law will open the door for legal pain and suffering recovery for many innocent and seriously injured car accident victims seeking compensation and who were barred by the old law.

On September 1 and 2, I will be speaking about McCormick v. Carrier and its effect on Michigan Auto Law requirements to other Michigan personal injury lawyers, during the Michigan Association for Justice No-Fault Institute in Southfield, Michigan. My presentation is called  “The Tort Threshold in Car Accident Cases: McCormick v. Carrier.

Lesson for personal injury lawyers in Michigan: Making injuries real

Over the past month, nearly every personal injury lawyer, insurance claims adjuster, and trial judge has been scrambling trying to figure out what this decision, weighing in at more than 100 pages, really means for people injured in car accidents in Michigan. My hope is this presentation will help my fellow auto accident attorneys and trial judges better understand this landmark lawsuit.

There are a lot of lessons to be learned after Kreiner v. Fischer .  Don’t misunderstand, I’m glad it’s gone. I’ve written extensively about how Kreiner was the worst possible public policy in Michigan. What made the old law under Kreiner so frustrating for personal injury lawyers in Michigan was the focus on duration and temporal factors that punished people who suffered very serious injuries of near total incapacitation but of shorter duration.

Also punished were good people who tried, despite the pain and medical restrictions of their injuries, to gut it out and try to get back to work as quickly as possible. The irony is this: despite the terrible public policy of Kreiner actually punishing these people who tried to go back to work in pain by throwing out their pain and suffering lawsuits, the focus on impairment required under Kreiner still provides a valuable road map for Michigan personal injury lawyers in auto cases in reaching today’s jurors.

For example, we as lawyers should still try to “objectively show” injuries and prove they have a physical basis, even if this is no longer the law. The requirement that things be objectively manifested, that is, be objectively identifiable or have a physical basis has now changed after McCormick. This will require the M Civil JI 36.11 definition of objectively manifested to now be changed as well.

But this old law and its relentless focus on objective injuries and showing impairment is still great advice for all personal injury lawyers. Lawyers should strive to make every personal injury as real and objective as they can. Lawyers should blow up x-rays so skeptical jurors can see them with their own eyes. The challenge is to make every injury real - something jurors can point to and see. In other words, something that is medically identifiable and that has a physical basis, even if that legal requirement is now changed after McCormick.

Remember, as a rule, jurors don’t like lawyers, especially plaintiff personal injury lawyers, and the jury pool has been poisoned by 30 years of insurance industry propaganda about people exaggerating injuries and the need for “tort reform.” Jurors will be naturally suspicious.  Anything you can do to reduce suspicion and increase credibility will improve your chances of successfully achieving a great trial result.

Michigan’s auto negligence jury instruction will now need to be changed

During the Michigan Association for Justice seminar, I will also cover the new jury instruction in Michigan auto cases, contained in M Civ JI 36.11 after McCormick v. Carrier, and tactics and strategy for how personal injury lawyers should present proofs in Michigan auto accident cases.

- Steve Gursten is recognized as one of the nation’s top personal injury lawyers handling serious car and truck accident injury cases and auto insurance No-Fault litigation. He is co-chair of the Michigan Association for Justice Auto Accident No-Fault Committee. Steve speaks and writes extensively on McCormick v. Carrier and is available for comment.

Related information on McCormick v. Carrier and Michigan’s auto laws:

McCormick v. Carrier blogs

Video: Michigan Supreme Court sets new standard in injury lawsuits

Michigan Auto Law is the leading largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state for more than 50 years. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights to better serve you.

A momentous sea change has just occurred on the Michigan Supreme Court.

Michigan Supreme Court Justice Elizabeth Weaver resigned. And a short time later, Gov. Jennifer Granholm appointed Michigan Court of Appeals Judge Alton Davis to fill the vacancy on the Supreme Court.

Justice Weaver was an excellent justice.  A Republican from Northern Michigan, she stood up for the integrity of the Court. This caused her to come increasingly into conflict with the three remaining arch-conservative and activist justices – Young, Markman and Corrigan.

I applaud Justice Elizabeth Weaver for her many years of dedicated service to the people of the State of Michigan. She has been a selfless advocate for judicial reform, something Michigan desperately needs to correct. I.e., appointing unqualified ideological candidates who must pass political litmus tests, such as Robert Young  - who received the lowest ranking on the Court from Michigan lawyers and faces re-election this November.

Justice Davis embodies the need for excellent and fair jurists on Michigan courts. He is widely respected by both Republicans and Democrats and will be an excellent addition to the Court. He was a trial court judge for more than 20 years before Gov. Granholm appointed him to the Court of Appeals in 2005.  His record demonstrates his commitment to fairness for working families, auto accident victims and disabled Michigan residents as well as respect for precedent, stare decisis and the rule of law. I note this is in stark contrast to Justice Young, whose voting record has been shown to be 80 percent against Michigan accident and injury victims and who has willfully disregarded long-standing and well-established principles of Michigan jurisprudence when it has suited him.

- Steve Gursten is recognized as one of the nation’s top personal injury lawyers handling serious car and truck accident injury cases and auto insurance No-Fault litigation. He is available for comment on Michigan’s new auto accident law, McCormick v. Carrier and the Michigan Supreme Court.

Related information:

Told you have no car accident case? New Michigan Supreme Court rule restores legal rights

38 worst judicial travesties of the Michigan Supreme Court (Under Justice Robert Young and former Chief Justice Cliff Taylor)

Michigan Auto Law is the leading largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state for more than 50 years. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights to better serve you.

This is the last post in my mini series of blogs on independent medical examiners. Mary Kneiser is a busy IME doctor, and has been for many years. Dr. Kneiser has been hired by auto insurance companies and personal injury defense law firms to do one time “examinations” of injured plaintiffs, write reports and testify. Ask any experienced personal injury attorney about her, and you will get an earful.

Now, public documents available from Wayne County Circuit Court in Detroit from a lawsuit between Dr. Kneiser and one of the larger Detroit defense law firms that had hired her in the past, makes for some very interesting reading on just how profitable the IME business has been for this well-known Michigan insurance medical examiner. The documents from this lawsuit also provide a compelling reason for the Office of Financial and Insurance Regulation (OFIR) to act on MCL 500.2252. Now.

In her lawsuit, Dr. Kneiser was retained by a large and well-respected defense law firm in a very significant personal injury attendant care case.  The case was filed in federal court.

In federal court, each party to a lawsuit must make mandatory expert disclosures and file with the court how often the expert they have retained has testified as an expert. Dr. Mary Kneiser, however, refused to disclose this information. The law firm that hired her writes that she refused because to disclose this information would ruin her “extremely profitable expert witness/IME business,” (according to the defense law firm’s case evaluation summary).

Discovery has revealed that Dr. Kneiser has testified 300 or more times in only four years, and 99 percent of this testimony was for defendants in personal injury lawsuits. Dr. Kneiser refused to disclose this information because “if word got out on the street that she was such a biased, active expert witness, her lucrative business would dry up” again, according to the case evaluation package filed by this defense law firm.

IME lessons for Michigan personal injury attorneys

There are important lessons here for all personal injury attorneys. First, Dr. Kneiser and most IME doctors are routinely asked how often they testify and how much they make (See how much the notorious IME Dr. John Baker and Dr. Manfred Griffenstein have testified). This information is important to show bias. These doctors know it, and instead of answering truthfully, the usual response is an “I don’t know.”  This is almost always a lie, but rarely do personal injury attorneys aggressively follow up to get this information. It is up to the personal injury attorney to get this information by issuing subpoenas for 1099s and other payments from the various auto insurance companies and defense lawyers and law firms that hire these notorious IME doctors .

One personal example.  Some years ago, another notorious defense neurologist, Dr. Leonard Sahn, told me under cross-examination that he had “no idea” how much money he was making performing defense exams and IMEs for various insurance companies. After our deposition, I issued subpoenas to Dr. Sahn.  It turned out Dr. Sahn was making $500,000 a year, just performing these one-time exams on behalf of defendants in personal injury lawsuits.

Independent medical exams are a game, and a perniciously evil one at that.  These IME doctors make vast amounts of money, testifying 99 percent of the time on behalf of the defense. They almost always minimize the personal injuries or damages to the plaintiff based upon one-time,15-minute exams.

If these issues of bias are not exposed, then a jury may actually mitigate the damages and compensation that your client deserves, especially when many IME doctors write typically nasty reports ripping apart injured clients and saying there is nothing wrong with them.

If you are a personal injury lawyer in Michigan, there isn’t a whole lot you can do about this either. IMEs are a big part of how defendants and insurance companies defend lawsuits here. But since this state has no bad faith or punitive damages to protect car accident victims, these IME doctors are, if anything, more outlandish than in most other states. And after McCormick v. Carrier, the main insurance company defense strategy seems to be to turn to IMEs now more aggressively than ever - so they can find “nothing wrong” with seriously injured accident victims.

One hope remains for restoring fairness - OFIR, act now on the Rule 500.2522

When doctors like Mary Kneiser refuse to comply with mandatory federal court discovery and disclose how often they testify and for which side in a lawsuit, because to do so “would ruin her “extremely profitable expert witness/IME business,” then we have a serious problem.  Mary Kneiser is more representative than not of many of the IME doctors in this state - considering the number of IME exams and how heavily she is used by the insurance defense industry to mitigate and minimize claims. But juries do not know this, and it is up to us to explain just how unfair these one-time, partisan insurance defense doctors can be in wrecking innocent people’s one chance to a fair and just car accident lawsuit.

Oh, and for any Michigan personal injury attorney out there who has a deposition coming up with Dr. Kneiser, run down to Wayne County one day at lunch and pull the court file on her IME lawsuit.

It makes for interesting reading.

- Steve Gursten is recognized as one of the nation’s top lawyers in serious car and truck accident injury cases and auto insurance no-fault litigation. Michigan Auto Law has received the largest reported jury verdict for a car accident case in Michigan in six of the past nine years, including 2009, according to published reports.

Related information:

Your Michigan No-Fault insurance rights

Michigan auto insurance claims adjuster tactics

Why the insurance company in Michigan thinks we’re really dumb

Michigan Auto Law is the largest law firm exclusively handling auto accident cases and No-Fault insurance law throughout the entire state. We have helped countless personal injury victims recover all of the No-Fault insurance benefits they’re entitled to, and we can do the same for you. Call (800) 777-0028 for a free consultation with an insurance lawyer.

This is the third post in my mini-series of blogs about independent medical examinations (IMEs) and how many notorious IME doctors make a great living claiming people with serious personal injuries are able to return to work and no longer need medical treatment. After all, there is little downside for them. The money is great, and in a state without many of the protections that exist in other states, insurance companies can select the nastiest “cut-off” doctors they can find to stop paying needed wage loss and medical bills to their own insured customers.

Perhaps finally realizing that Michigan auto insurers have been abusing the IME process, the Michigan Office of Financial and Insurance Regulation (OFIR) has proposed updated (although still very modest) IME rules to better protect Michigan residents from insurance company abuse.

The rules are currently under review by OFIR.

Proposed rule 500.2252 offers protection for auto accident victims from IME abuse

Under proposed rule 500.2252, an independent medical examiner must have either the same or a higher level of education, certification or board certification as the health professional treating an auto accident victim; AND an IME doctor must devote a MAJORITY of his or her professional time to treating patients.

From now on, these independent medical examiners would “have to prove that over half of their expertise is devoted to medical treatment.”

For example, in my recent trial  cross-examination of Dr. John Baker’s partner, Dr. Manfred Griffenstein,  he testified he had not actually provided medical treatment to traumatic brain injury victims for more than a decade, yet an auto insurance company had paid him to evaluate my client’s TBI.

Therefore, I presume that both Dr. John Baker and his partner would have a lot of work to do if they want to maintain their IME practices. Same goes for many other notorious IMEs used throughout Michigan who make a fortune finding “nothing wrong” with seriously injured auto accident victims on behalf of automobile insurance companies and workers compensation carriers looking to improve their bottom line – despite the record-breaking profits insurance companies in Michigan continue to garner year after year.

Here are the proposed rules for setting standards for independent medical examinations.

Unfortunately, this is where it gets ugly. The Michigan Office of Financial and Insurance Regulation tabled the rule changes last December to allow for more comment and revision (Read: lobbying).  As of now, the status quo still exists until OFIR presents the revised rule change. The OFIR tells us that state attorneys are moving forward with the rules, however, it could not give Michigan Auto Law a date as to when they should be finalized.

I don’t know what they are waiting for.

One last thought: I believe rule 500.2252(d) requiring actual clinical practice has the most teeth of all of the new standards. Plus, the case law interpreting the similar provision in the medical malpractice context may be quite helpful in using the new administrative rule to challenge questionable IMEs.

- Steven Gursten is recognized as one of the nation’s top lawyers in serious car and truck accident injury cases and auto insurance no-fault litigation. Michigan Auto Law has received the largest reported jury verdict for a car accident case in Michigan in six of the past nine years, including 2009, according to published reports.

Related information about No-Fault insurance in Michigan:

Car insurance claims adjuster delays

Car accident settlements in Michigan - beware

Why the insurance industry in Michigan thinks we’re really dumb

Michigan Auto Law is the largest law firm exclusively handling auto accident cases and No-Fault insurance law throughout the entire state. We have helped countless personal injury victims recover all of the No-Fault insurance benefits they’re entitled to, and we can do the same for you. Call (800) 777-0028 for a free consultation with an insurance lawyer.

On Tuesday, I wrote about the havoc “independent” medical examiners are bringing to car accident victims and the No-Fault insurance system in Michigan. Which brings me now to John Baker, Ph.D. This man is a neuropsychologist in Oakland County (Royal Oak), who is often hired by auto insurance companies for “second opinion” defense examinations of injured car accident victims who have suffered traumatic brain injuries.

I’ve previously blogged about my experiences with his partner, Dr. Manfred Greiffenstein. And I don’t want Dr. Baker to feel ignored. According to public documents filed recently in United States District Court, Dr. Baker has testified on behalf of auto insurance companies and car accident defense lawyers more than 115 times from 2006 to 2009.

That’s one deposition every nine days.

Sadly, as any car accident lawyer or judge knows, this number is only the tip of the iceberg. After all, depositions aren’t taken in the vast majority of cases. Most accident victims still settle for a compromised amount during the litigation process and before trial. A deposition normally only happens when a victim actually hires a personal injury attorney, and the case is litigated past case evaluation and to the point where trial depositions are being taken by the lawyers for an upcoming trial date. So this number likely excludes entirely all the cases that settled before the point of trial.

Sadly, this number also does not encompass all those frustrated auto accident victims who simply gave up and chose not to pursue a case.  Unfortunately, when dealing with auto accident victims who have suffered TBI, and the accompanying brain injury symptoms such as depression and frontal lobe emotional injuries, I can only imagine this is quite a large number of damaged people who walked away from pursuing needed medical care.

This brings me now to the great importance of the new proposed IME Rule. It’s now tabled in Michigan, but hopefully, it will restore some fairness to Michigan’s No-Fault insurance system. I will discuss this proposed IME Rule in my next blog.

-    Steven M. Gursten received a trial verdict of $5.65 million for a TBI victim in 2008; the largest reported auto negligence verdict in Michigan for the year.  He frequently speaks on traumatic brain injury for attorneys across the country. Steve is a member of the American Association for Justice Traumatic Brain Injury Litigation Group and several foundations devoted to helping brain injury victims, including the Brain Injury Association of Michigan and the Sara Jane Brain Project.

Related information:

Help for traumatic brain injury attorneys

Steps TBI victims must take following a car accident

Michigan car insurance claims adjuster tactics

Michigan Auto Law is the largest law firm exclusively handling auto accident cases and No-Fault insurance law throughout the entire state. We have helped countless traumatic brain injury victims, and we can do the same for you. Call (800) 777-0028 for a free consultation with a TBI attorney.