May 2006

Seltzer, Smyth and Ludden Score Important Defense Victory

Phillip E. Seltzer, Karen A. Smyth and C. Thomas Ludden scored an important defense victory in the Michigan Court of Appeal case of Craig v Silverman, securing and upholding a trial court summary dismissal of a $21 million legal malpractice claim growing out of the prior Michigan Supreme Court decision in Craig v Oakwood Hospital, 471 Mich 67(2004). After the Supreme Court overturned a medical malpractice verdict of $21 million in a cerebral palsy birth trauma case, the client-plaintiff sued her attorney claiming he failed to elicit proper expert testimony at the trial and failed to accept a $4.6 million settlement offer months before the Supreme Court decision.

The Lipson team, by charting an aggressive course that required the plaintiff to outline facts to support the complex causation requirements of her claims, was able to persuade the trial court judge that the plaintiff could not state a viable claim. This course permitted the defense to bypass the more expensive route of pre-trial discovery and expert depositions. Consequently, the trial judge ruled to summarily dismiss the case, to bar further amendment as “unjustified” based upon the evidence submitted by the defense attorneys, and to involuntarily dismiss the case for Plaintiff’s repeated failure to cure pleading deficiencies and obey court orders. These rulings were then upheld by the Court of Appeals. The decision in Craig v Silverman, released on April 20, 2006, is available at the Michigan Court of Appeals website (courtofappeals.mijud.net/resources, search by the docket number #265155).

Mr. Seltzer has more than 20 years of experience in litigating legal malpractice cases and has lectured and written extensively on issues pertaining to liability, defense and prevention of legal malpractice. Mr. Seltzer is an annual co-presenter on the State of the Law in Legal Malpractice Developments in Michigan at the Oakland County Bar Association's State of the Law Day. Firm partner, Karen Smyth and associate C. Thomas Ludden focus their practices on a range of insurance defense areas, including lawyer professional liability.