Justice Taylor was soundly beaten in the recent election. First time ever in Michigan that a sitting Chief Justice was defeated. Ever.
In interview after interview since the election, he has shown the true cut of his jib, his true colors, if you will. He has griped, and whined and "pissed and moaned" about how unfair the election was, about how his was mis-treated and mis-represented in the election. Maybe I missed, it but never once did he congratulate his competitor Judge Diane Hathaway – a former prosecutor and Circuit court Judge – for her victory.
So as most citizens in the state were saying, "Goodbye and good riddance…… don’t let the door hit you in the ass", Justice Taylor and his fellow activist Judges Young, Corrigan and Markman gave one last parting shot to the citizens of Michigan before Taylor left the bench. On December 30th, these four justices authored Moore v. Secura. Here’s how it all played out.
In a nutshell, it’s a case about medical benefits under the Michigan No-Fault Act. The law says you’re entitled to lifetime medical benefits when you’re involved in an auto accident here in Michigan as long as the treatment was "reasonable and necessary". ‘Reasonable" refers to the fee charged by the doctor for the procedure. "Necessary" refers to whether or not the treatment was "necessitated" by the injury from the car crash.
In almost every case, insurance companies will send you out to one of their insurance doctors if you need more than a few weeks of treatment. In fact, when the No-Fault Insurance statute was made law, the insurance companies, through their lobbyists fought hard to have it spelled out right in the statute itself that they have a legal right to send you to any doctor they choose.
In the Moore case, Secura Insurance Company sent Hattie Moore to see Dr. Charles Xeller, an insurance company doctor who’s credentials and bias against plaintiffs is well known and well documented. Dr. Xeller examined Hattie and he authored a 7 page report which said plaintiff didn’t need any more medical treatment. The problem was that this one-time exam by Dr. Xeller and his opinion that Hattie needed no more treatment, this totally contradicted plaintiff’s own doctors who had been treating her for over a year. You see, in the accident, her knee was badly damaged. It was fractured and it needed surgery to be fixed.
So, based on Dr. Xeller’s opinion that Hattie needed no more treatment, Secura cut off all medical benefits. Hattie asked them to reinstate benefits, but they refused so she had to get an attorney and sue them to reinstate her medical benefits. Her attorney argued that Secura had a duty to treat each of their insured fairly which required them to reconcile conflicting medical information before cutting someone off.
What Hattie’s attorney argued to the jury was a simple bit of good old common sense. Insurance companies shouldn’t be allowed to pick one of their doctors, have them do a one time exam and then cut-off benefits based on that one insurance doctor’s biased opinion. Hattie’s attorney argued that insurance companies have a duty to reconcile conflicts in the medical records that are created by the insurance companies doctors. Simply put, if Hattie’s doctors have been saying for over a year that the car crash caused an injury to her knee and that she needed care and treatment, it wasn’t fair for Secura to cut Hattie’s benefits off based on Dr. Xeller’s opinion, especially when it contradicted the opinions of all her treating doctors.
The argument was successful. The jury agreed. So did the trial judge and he sanctioned Secura and ordered them to pay Hattie’s attorney fees. The case went up to the Court of Appeals. They agreed too. They held that insurance companies can’t cut someone off based solely on their insurance company doctor when the insurance company doctor’s opinion conflicts with all the treating physicians.
But, as has been the case so often with Justice Taylor, Justice Young and the other activist judges on the Michigan Supreme Court, they saw things differently. They held that it wasn’t unreasonable for Secura to look only at Dr. Xeller’s report when they decide to terminate Hattie’s medical benefits. In doing this, they over-ruled the Michigan Court of Appeals AND prior case law in Liddell v. DAIIE, a case that had been standing precedent in Michigan since 1981. This wasn’t unusual as Justices Taylor and Young have made a career out of overturning existing law in Michigan, especially when the existing law protected individuals from insurance companies and large corporations.
With the flick of a pen, 28 years of case law was thrown out the window. If that wasn’t bad enough, for Justices Taylor and Young to further say that it was reasonable for Secura to rely on Dr. Charles Xeller……… well, that’s just adding insult to injury.
Why? Here’s what attorneys in Michigan have uncovered while deposing Dr. Charles Xeller over the last few years…..
1. He’s an orthopedic Surgeon licensed in Michigan, Texas, California, New York, Nevada and New Jersey.
2. He lives in Houston Texas.
3. He was first licensed in Michigan in 1997. He stopped practicing in Michigan in 1999.
4. He was traveling to Michigan for one week per month for the purpose of performing exams for insurance companies. He does the same for one week per month in California.
5. He averages around 80 exams per month for insurance companies.
6. In 2004, he was paid $419,904.43 for doing workman’s Compensation exams in Texas alone.
7. In the two years he practiced in Michigan, he was sued 5 timed for malpractice. He lost every case.
8. 15 malpractice suits against him in Texas.
9. The Michigan Attorney General filed an Administrative Complaint against him to revoke his Michigan license.
10. On October 23, 1997, he admitted during a deposition in his divorce that he had lied during his previous divorce deposition about his extra-marital affairs. In Michigan we call this perjury. It’s a 4-year felony.
11. During his divorce proceedings, he was arrested by the Houston Police Department at gunpoint on August 28, 1997 for driving to his ex-wife’s attorney’s office and throwing a rock at the building. He was in his hospital scrubs at the time and had $10,000 cash in his car at the time he assaulted the building.
12. By the end of the divorce, his ex-wife obtained a $1,000,000 judgment against him for assaulting her during the marriage including choking her and shoving a rag down her throat….
According to Justices Taylor and Young, this kind of doctor – a doctor that lies under oath, that has Administrative Actions filed by state Attorney Generals to revoke his license, that travels from Texas, to California to Michigan to make a buck doing insurance exams – this kind of doctor is the type that insurance companies can rely on to cut-off benefits.
28 years of precedent, down the drain. 28 years of protection for the citizens of this state from unscrupulous doctors, out the window. 28 years of a rule that required insurance companies to simply play fair, gone. It’s a wonder some of these Justices can even look at themselves in the mirror in the morning.
The citizens of this state took the first step to taking back their highest court from activist judges who are protecting the special interest groups that put them in power. The next step is Justice Young in 2010. Don’t let the door hit you in the ass on the way out Cliff……. good riddance.
Mr. Smith has practiced as a trial attorney since graduating Notre Dame Law School in 1992. He has litigated cases across the country including cases from Ventura County, California to Middlesex County, New Jersey. He practices in both State and Federal courts.