Kitch Drutchas Wagner Valitutti & Sherbrook

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Complex Settlements

Settlements used to be simple--pay the cash and close the file. Increasingly, that is not true, especially in large payment cases. For personal injury matters, structured settlements involving sophisticated periodic payments, qualified assignments and guarantees, reporting of malpractice payments, aggressively asserted lien rights of Medicare, Medicaid and other payers, tax filing requirements, and complicated rules to protect the rights of minors and incapacitated persons, have made many settlements much more complex. Non-compliance with some of these requirements can mean an unenforceable settlement or financial penalties. In employment cases, civil rights and tax laws need to be considered. In business and insurance coverage cases, the need for continuing business relationships and tax issues can dictate the terms of settlement.

Once the litigators have reached an agreement in principle on settlement, the presumption may be that the work is done. However, both plaintiff and defense counsel are often not fully aware of what it can take to settle cases involving these kinds of issues. To meet this challenge, the Kitch firm's attorneys devote significant effort in keeping current on these issues, in developing procedures designed to glean and use the necessary information to draft release and settlement agreements in compliance with the current law. Sometimes that requires educating the attorneys litigating the case.

Release and settlement agreements in large cases generally involve structured settlements with periodic future payments. At Kitch, we pride ourselves on maintaining good relations with many major structured settlement companies that broker or provide the settlement annuities, and that recognize the firm's drafting of the relevant documents as more than meeting the standards of their industry.

In connection with complex release work, our attorneys handle the following services:
- Negotiation of settlements, while also addressing sometimes sticky details like indemnification, responsibility for liens, and tax issues.
- Drafting or comprehensive review and, if needed, editing of releases to address tax law requirements, indemnification, lien payment responsibilities, complicated payment distribution provisions, and special features like guarantees, security interests and commutation.
- Drafting or comprehensive review and, if needed, editing of supporting documents such as waivers, discharge of liens (for lien claimants), Medicaid special needs, Medicare set-aside and other types of trust documents, qualified assignments and relevant court orders, to meet trial court and probate court requirements.
- Participation in court hearings involving settlements, i.e., placing settlements on the record, and seeking probate court concurrence when appropriate.
- Advising the client on NPDB reporting requirements concerning malpractice payments and IRS 1099 tax reporting obligations.

Asbestos Litigation

Since 1976, the Kitch firm has been a continuous leader in Michigan and throughout the United States in the defense of asbestos personal injury and property damage claims. The firm's attorneys, with almost a century of combined asbestos case trial experience, have compiled an impressive list of accomplishments. Added to this experience is:
* Backup from the firm's outstanding appellate lawyers and knowledgeable support staff
* The ability to develop creative and aggressive fiber defense strategies
* State-of-the-art document management technology
* A sophisticated database of medical and industrial hygiene records.

Together, these allow the Kitch firm to provide superior representation while keeping overall defense cost at a minimum. We are also able to serve as outstanding educators for the staff of those clients concerned with medical, industrial hygiene and safety issues.

Whether it is handling a single disputed asbestosis case for a local supplier, serving as national counsel for a product manufacturer, or assisting in risk management and safety issues, the Kitch firm has the knowledge, the reputation, the resources and the depth of representation that few, if any, other firms in the nation can match. Selection of the Kitch firm gives clients the ability to go to trial or to negotiate from a position of strength.

Birth Trauma

With the massive financial and emotional implications that result from medical malpractice cases arising out of the birthing process, it takes specialized knowledge to defend these cases. The Kitch firm has established a multi-specialty practice to deal exclusively with such matters. This practice has led to the firm being recognized as one of the nation's leaders in birth trauma defense.

The firm's resources include:
1. Over 20 attorneys, with strong clinical knowledge, devoted specifically to birth trauma
2. Specialized personnel including nurses and paralegals with backgrounds in obstetrics, neonatology, perinatology and all related areas
3. An extensive library of medical resources, dating back to 1986
4. Nationally recognized experts to assist the Kitch firm with preparing their defense
5. An extensive library of plaintiffs' experts' prior testimony to help effectively impeach subsequent testimony.

The Kitch firm has handled hundreds of such cases throughout the country, including litigating over 50 cases to verdict. In addition to directly defending these cases, the firm has been selected by several national insurance companies to serve as coordinating counsel. In this capacity, the firm provides its services to local defense counsel throughout the country.

The services provided include:
* Extensive initial analysis letter summarizing the medicine and developing a strategy for defense
* Experts for review
* Assist in cross-examination of plaintiff's experts
* Trial exhibits
* Medical literature
* Legal template motions.

The Kitch firm offers a nationally-renowned, full-service team with the specialization necessary to adequately defend these significant cases.

Premises Liability

"Premises liability" was once a synonym of "slip and fall." However, with tort reform laws restricting many other types of claims and attorneys seeking new targets for suit, it has come to mean much more than that. Today, premises claims often encompass allegations of hazardous or defective conditions such as malfunctioning doors, inadequate lighting, broken steps, criminal acts of third parties, and defective water supplies. Likewise, claims of malicious prosecution, false imprisonment, excessive use of force, and violations of civil rights have become a much greater concern for landowners. Kitch firm attorneys are in the forefront of anticipating developments in alternative claims and finding ways to effectively defend them.

We are often involved in assisting risk managers in the pre-suit investigation from the moment a claim is reported. Suits are aggressively defended so that all defenses are explored and preserved, and dispositive motions are pursued on a timely basis. The firm has positive relationships with, and routinely retains. nationally-recognized experts, including individuals with Ph.D.s in meteorology, who can pinpoint snow, ice and other weather conditions, and security specialists who can bring reality back to the assessment of what security is feasible, to help assure these claims can be maximally defended.

Product Liability

When it comes to product liability issues, the firm has a wealth of experience its clients can draw upon for prevention or litigation. Kitch firm lawyers have:
* Tried high-stakes product liability cases involving all types of products from coast-to-coast
* Tried the largest consolidated product liability trial in the nation resulting in a defense verdict
* Tried high-exposure mass tort cases for Fortune 100 companies
* Tried consumer warranty claims relating to recreational vehicles
* Defended negligence actions involving household appliances
* Defended negligence actions involving drug and medical devices
* Been responsible for demonstrative evidence for national product litigation, using state-of-the-art computer presentation applications
* Extensive experience with jury trial research, having conducted over 25 mock trials and focus groups in product cases.

While product liability is generally regarded as a matter of personal injury, the depth of our experience and work also extends to commercial issues like breach of warranty and consumer protection claims involving product failures, noncompliance with specifications, and delayed delivery.

Litigation Avoidance

Product manufacturers and suppliers can no longer afford to wait for a lawsuit before taking measures to evaluate and protect themselves and their products from what juries might do in the future. Without a doubt, timely litigation prevention measures discourage competent plaintiff lawyers from bringing or pursuing cases. They also make any claims that are brought much easier to settle reasonably or try to a successful conclusion.

Our preventive practice draws on the considerable insights of our trial lawyers, who have defended many of the biggest names in cases involving all types of products nationwide. The firm stands ready to help clients prevent litigation in the following ways:
* Product warning audits: A privilege-protected evaluation of whether a client's warnings and instructions are likely to be accepted as valid to a jury.
* Product failure/incident investigations: Early preservation of critical evidence and documentation, limiting potentially damaging admissions by employees, contact with regulatory personnel and damage control.
* Liability prevention programs: Education of personnel, development of standard operation procedures for document retention and incident response, and responding to lawyers or administrative inquiries.
* Potential litigation crisis management: Dealing with the media, perceived need by personnel to "cover themselves," statements and responses to regulatory authorities and the like in the face of a crisis.

In the commercial context, we have advised clients on issues concerning such varied products as airbag inflators, steering columns, piston housings, toaster ovens and restaurant equipment. This has included guidance on Transportation Recall Enhancement and Documentation [TREAD] Act requirements for product performance and reporting, assisting clients in performing Failure Mode and Effect Analysis [FMEA], and working through Eight Disciplines [8D] problem-solving evaluations of manufacturing issues as part of an overall risk management program.

Litigation Defense

The comfort, strength and value afforded by having top trial lawyers with experience and a solid reputation is also critical to successfully defending product liability litigation. The Kitch firm is made up of such attorneys. In cases where litigation is not avoidable, we know how to make products defensible.

In addition to our depth of experience as litigators we have the support of:
* One of the nation's largest libraries on expert witnesses who routinely testify for plaintiffs, with files on over 40,000 product, medical, and scientific experts
* One of the finest appellate practices in the country, with a win rate of over 80%, including important cases on liability.

We have also used our experience to develop unique and widely-acclaimed techniques for cost forecasting and budgeting to vastly reduce defense costs. In the course of this work, we have developed expertise in hundreds of product categories and we have executed a variety of creative and aggressive defense strategies to eliminate or minimize loss to our clients. The firm stands ready to assist the product manufacturer, supplier or insurer in rapidly and effectively responding to the issues that have already arisen surrounding their products--and to the issues that may arise in the future.

Kitch Drutchas Wagner Valitutti & Sherbrook
1 Woodward Ave #2400
Detroit MI 48226-5485
Tel: 313 965-7900
Fax: 313 965-7403