Birth trauma case award to stand at $144M, appeals court rules (MI)

The damages awarded in a prominent local birth trauma case will remain at $144 million after a Michigan Court of Appeals ruling this week.

Southfield-based Fieger Law PC’s $144 million verdict in October 2011 against Beaumont Health and gynecologist Andrew Halperin in a birth trauma lawsuit will stand, a three-judge panel unanimously ruled, despite what it called a “far from perfect” trial leading up to it.

Markell VanSlembrouck, now 18, and mother Kimberly VanSlembrouck of Macomb Township obtained that sum from a jury before Oakland County Circuit Judge Rudy Nichols.

The award was later reduced to about $42 million, because much of the damages are for projected future health costs until Markell turns 82 and lost income, which had to be reduced to their present dollar value. Another $13.5 million, for past and future “pain and suffering” and other noneconomic damages, was capped by legal limits on such awards enacted during the 1990s.

“Viewing the evidence in the light most favorable to plaintiffs, as we must, we cannot (find the) jury’s life expectancy determination (to be) excessive …,” the ruling states.

The hospital claims in appeals that there was “incompetent” testimony about Markell’s life expectancy, the cap on medical malpractice damages should have been lower and future damages were improperly computed and improperly reduced to present cash value. But the appeals court found no legal error in those matters.

Former Seyburn Kahn attorney pleads no contest in trust management dispute

A trust fund management dispute is winding down with a no contest plea from a former founding partner of Southfield-based Seyburn Kahn PC.

Attorney Barry Bess will plead no contest to several allegations of failure to give a full accounting for client trust accounts and begin a 180-day suspension from practicing law on Jan. 17 if the state Attorney Discipline Board accepts his plea.

Bess, now sole manager of Bess and Associates PC, was removed as trustee of three trusts at Oakland County Probate Court by Judge Daniel O’Brien in December 2012. At the time, he was a partner at Seyburn, Kahn, Ginn, Bess & Serlin PC, but the firm in a statement earlier this year announced it was shortening its name and Bess was “forming his own practice.”

Bess later hired Birmingham Mayor Pro Tem Stuart Sherman as an attorney in the trust dispute, but Troy-based Jacob & Weingarten PC in January obtained a civil court verdict against Sherman related to his representation of Bess. That firm later reached an undisclosed agreement to end its litigation and considers the Sherman matter over, said its attorney, Kenneth Neuman of Birmingham-based Neuman Anderson PC.

Bess also must give an accounting of the trusts in the probate dispute in order to return to practicing law, even after his suspension.

A panel presiding in Bess’ discipline case has yet to formally approve the agreement. Bess’ attorney, Kenneth Mogill of Lake Orion-based Mogill, Posner & Cohen, said Bess was not being negligent but his records weren’t complete enough to meet some stringent requirement that govern probate lawyers.


Birth trauma case award to stand at $144M, appeals court rules
Chad Halcom
October 30, 2014
Crain’s Detroit Business