UNITED STATES DISTRICT COURT

IN THE EASTERN DISTRICT OF MICHIGAN

CLIFTON E. JACKSON and Case No.: 2009-11529

CHRISTOPHER M. SCHARNITZKE, Judge David M. Lawson

Plaintiffs, on behalf of themselves and 

 other persons similarly situated

SEDGWICK CLAIMS MANAGEMENT 

SERVICES, INC, and COCA COLA

ENTERPRISES, INC, foreign corporations,

and DR. PAUL DROUILLARD, 

Jointly and Severally, 

Defendants.

______________________________________________________________________________ 

MARSHALL LASSER P25573 

MARSHALL LASSER PC

Attorney for plaintiffs

po box 2579 

Southfield MI 48037

248-647-7722

mlasserlaw@aol.com

ddtalon@gmail.com

Thomas W. Cranmer P25252

Matthew F. Leitman P48999

Miller Canfield Paddock & Stone, P.L.C.

840 West Long Lake Road, Ste. 200

Troy, MI 48098

248-879-200

cranmer@millercanfield.com

leitman@millercanfield.com

BUTZEL LONG

By: Daniel B. Tukel P34978

Lynn A. Sheehy P38162

Katherine D. Goudie P62806

Attorneys for Defendant Dr. Drouillard

150 W. Jefferson, Ste. 100

Detroit, MI 48226

313-225-7000

tukel@butzel.com

sheehy@butzel.com

goudie@butzel.com

Kathleen H. Klaus P67207

Maddin, Hauser, Wartell , Roth

 & Heller, P.C.

Attorney for Sedgwick 

28400 Northwestern Hwy., 3rd Fl

Southfield, MI 48034

248-354-4030

khk@maddinhauser.com

PLAINTIFFS’ AMENDED MOTION FOR LEAVE TO FILE SECOND 

AMENDED COMPLAINT (SECOND REVISION) & BRIEF IN SUPPORT OF

MOTION;

PROPOSED SECOND AMENDED COMPLAINT (SECOND REVISION) (ATTACHED)

PROOF OF SERVICE

The undersigned certifies that this instrument, together with all referenced attachments was

served on all parties to this case and/or their attorneys of record at their respective addresses

as disclosed by the pleadings on August 17, 2009 by the following method(s): 

[] U.S. Mail [] Fax [] Hand Delivered 

[] Federal Express [] UPS

[X] Other: ELECTRONICALLY EMAILED

 /s/Delilah D. Talon 

Signature of Serve

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Amended Motion

 Plaintiffs move under FRCP 15(a)(2) for leave to file a Second Amended Complaint (Second

Revision).

Concurrence of counsel refused: On August 14, 2009, plaintiffs’ counsel personally

conferred with counsel for each defendant (Sheehy, Leitman and Klaus), and each refused to

stipulate to leave to file the Second Amended Complaint (Second Revision).

This second revision adds language to paragraphs 30A Conspiracy and 32 AIDING AND

ABETTING; those paragraphs were introduced in earlier versions of the proposed Second Amended

Complaint. The additions are boldfaced. 

30A. Conspiracy (18 U.S.C. 1962(d)). By means of the actions described

in the complaint, each of the defendants conspired to violate 18 U.S.C. 1962( a

through c), and conspired with one or more of the other defendants, and or the

employees of Coca Cola and Sedgwick, and or with other persons, to violate 18

U.S.C. 1962(a through c). Coca Cola and Sedgwick, through the actions of their

employees involved in the handling of Michigan workers compensation claims,

and Dr. Drouillard, agreed to participate in the commission of the predicate acts

which are alleged in this complaint. These employees of Coca Cola and

Sedgwick knew Dr. Drouillard and other “independent medical examiners”

wrote reports which were used to deny or cut off workers compensation

benefits, and knew Dr. Drouillard and other “independent medical examiners”

were doctors who could be relied on to write a fraudulent report - finding a

workers compensation claimant had no work-related disability regardless of the

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truth - yet these employees agreed to the use of Dr. Drouillard and others as

“independent medical examiners,” and to the use of their report to cut off or

deny benefits, or to settle a claim for less than its true value due to the

fraudulent reports of Dr. Drouillard and other fraudulent independent medical

examiners, knowing that the mails and wires would be used in furtherance of

this fraudulent scheme. These allegations are based on information and belief, and

are likely to have evidentiary support after a reasonable opportunity for investigation

and discovery. Such actions of conspiracy proximately caused or contributed to

plaintiffs’ damages, as a result of which defendants are liable to plaintiff under

section 1962(d).

32. AIDING AND ABETTING. Coke aided and abetted the

predicate acts committed by the other defendants, because (1) Sedgwick acted

as agent for Coke, and the actions of its agent are attributable to Coke, and (2)

on information and belief, employees of Coke knew of the predicate acts

planned by the defendants on behalf of Coke and permitted them to take place

by silent or express approval, and by failing to stop the pattern of racketeering

though it had knowledge of same. Coca Cola and Sedgwick, through the actions

of their employees involved in the handling of Michigan workers compensation

claims, and Dr. Drouillard, agreed to participate in the commission of the predicate

acts which are alleged in this complaint. These employees of Coca Cola and

Sedgwick knew Dr. Drouillard and other “independent medical examiners” wrote

reports which were used to deny or cut off workers compensation benefits, and knew

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Dr. Drouillard and other “independent medical examiners” were doctors who could

be relied on to write a fraudulent report - finding a workers compensation claimant

had no work-related disability regardless of the truth - yet these employees agreed

to the use of Dr. Drouillard and others as “independent medical examiners,” and

to the use of their report to cut off or deny benefits, or to settle a claim for less than

its true value due to the fraudulent reports of Dr. Drouillard and other fraudulent

independent medical examiners, knowing that the mails and wires would be used in

furtherance of this fraudulent scheme. The identities of the Coke employees and

the dates of their actions and the dates they learned of the planned predicate

acts are not known to plaintiff. Dr. Drouillard aided and abetted the predicate

acts committed by LaTara Lewis and other employees of Sedgwick by (1)

communicating with them personally or through agents to set up the so-called

“independent medical examinations,” and (these communications, if by mail

or wire, are also acts of mail and wire fraud by Dr. Drouillard), and (2) by

doing those exams to aid Sedgwick’s goal of cutting off or denying benefits.

The allegations of this paragraph are based on information and belief, and are

likely to have evidentiary support after a reasonable opportunity for

investigation and discovery. 

The second revision of the proposed Second Amended Complaint also withdraws paragraph

24, which alleged violation of 18 USC sections 1962(a) and (b).

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The proposed Second Amended Complaint (Second Revision) is attached hereto.

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BRIEF IN SUPPORT

Issue Presented

Should the court grant plaintiffs leave to file the Second Amended Complaint

(Second Revision)?

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Controlling Authorities

FRCP 15(a)(2)

United States v Phillips, 664 F2d 971 (5th Cir 1981)

United States v Driver, 535 F3d. 424, 432-3 (6th Cir 2008).

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Argument

I. THE SECOND AMENDED COMPLAINT (SECOND REVISION)

ALLEGES A CONSPIRACY BY COCA COLA IN VIOLATION OF 18

USC §1962(d).

Coca Cola’s Brief in Opposition to Plaintiffs’ Motion for Leave to File Second Amended

Complaint argues the proposed complaint fails to “plead the existence of an agreement to engage

in conduct that would amount to a RICO violation,” brief 4. In response to that argument, whether

well taken or not, plaintiffs add the following italicized language to para. 30A, Conspiracy:

30A. Conspiracy (18 U.S.C. 1962(d)). By means of the actions described

in the complaint, each of the defendants conspired to violate 18 U.S.C. 1962( a

through c), and conspired with one or more of the other defendants, and or the

employees of Coca Cola and Sedgwick, and or with other persons, to violate 18

U.S.C. 1962(a through c). Coca Cola and Sedgwick, through the actions of their

employees involved in the handling of Michigan workers compensation claims, and

Dr. Drouillard, agreed to participate in the commission of the predicate acts which

are alleged in this complaint. These employees of Coca Cola and Sedgwick knew

Dr. Drouillard and other “independent medical examiners” wrote reports which

were used to deny or cut off workers compensation benefits, and knew Dr. Drouillard

and other “independent medical examiners” were doctors who could be relied on

to write a fraudulent report - finding a workers compensation claimant had no workrelated disability regardless of the truth - yet these employees agreed to the use of

Dr. Drouillard and others as “independent medical examiners,” and to the use of

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their report to cut off or deny benefits, or to settle a claim for less than its true value

due to the fraudulent reports of Dr. Drouillard and other fraudulent independent

medical examiners, knowing that the mails and wires would be used in furtherance

of this fraudulent scheme. These allegations are based on information and belief, and

are likely to have evidentiary support after a reasonable opportunity for investigation

and discovery. Such actions of conspiracy proximately caused or contributed to

plaintiffs’ damages, as a result of which defendants are liable to plaintiff under

section 1962(d).

This paragraph sufficiently alleges a conspiracy in violation of 18 USC §1962(d). It alleges

knowing and voluntary participation in an agreement to defraud employees of workers

compensation benefits through the use of fraudulent “independent medical examinations,” with

knowledge that the mails and wires would be used in furtherance of that scheme. This agreement

to defraud is the essence of conspiracy, and this plaintiffs have now alleged. United States v

Phillips, 664 F2d 971 (page 23 approx) (5th Cir 1981), held that

[p]roof of a RICO conspiracy charge requires that the Government prove the

additional element of agreement. The defendant must have “objectively manifested

an agreement to participate directly or indirectly in the affairs of an enterprise

through the commission of two or more predicate crimes.” [citation omitted]

Under Phillips, plaintiffs have sufficiently alleged a conspiracy agreement in which Coca

Cola participated.

Coca Cola need not have committed two predicate acts itself, or agreed to commit two

predicate acts itself. United States v Driver, 535 F3d. 424, 432-3 (6th Cir 2008). A conspiracy

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allegation is sufficient if it alleges “that someone would commit two predicate acts.” Driver, supra,

emphasis by the court. Plaintiffs have alleged Coca Cola knew and agreed that Dr. DRouillard

would write fraudulent reports and that Sedgwick would use them to fraudulently deny or cut off

or settle cheaply claims for workers compensation benefits.

The proposed Second Amended Complaint (Second Revision) sufficiently alleges conspiracy

by Coca Cola in violation of 18 USC 1962(d). 

Under Driver, the conspiracy allegations in the earlier versions of the Second Amended

Complaint were sufficient to allege a RICO conspiracy. Plaintiffs need not have made the

additional allegations in second revision of the Second Amended Complaint. However, rather than

argue the sufficiency of the earlier conspiracy language, plaintiffs now add allegations in response

to Coca Cola’s brief - adding suspenders even though they believe the belt was sufficient to hold up

the conspiracy claim. 

II. THE SECOND AMENDED COMPLAINT (SECOND REVISION)

ALLEGES AIDING AND ABETTING BY COCA COLA IN VIOLATION OF

18 USC §1962(c).

The original proposed Second Amended Complaint alleged: 

32. AIDING AND ABETTING. Coke aided and abetted the predicate acts

committed by the other defendants, because... (2) on information and belief,

employees of Coke knew of the predicate acts planned by the defendants on

behalf of Coke and permitted them to take place by silent or express approval,

and by failing to stop the pattern of racketeering though it had knowledge of

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same. The identities of the Coke employees and the dates of their actions and

the dates they learned of the planned predicate acts are not known to

plaintiff.... The allegations of this paragraph are based on information and belief,

and are likely to have evidentiary support after a reasonable opportunity for

investigation and discovery. 

Coca Cola claims in its Brief that plaintiffs have not alleged actionable aiding and abetting,

because they have not alleged Coca Cola committee “affirmative and intentional conduct by the

alleged aider and abetter.” This is not true, because plaintiffs alleged “employees of Coke knew

of the predicate acts planned by the defendants on behalf of Coke and permitted them to take

place by silent or express approval, and by failing to stop the pattern of racketeering though

it had knowledge of same.” Under Driver, supra, these are allegations of “assistance or

encouragement” - Coke as self-insurer had authority to stop predicate acts, but it “permitted” the

predicate acts to take place. This allegation suffices to allege “assistance or encouragement,” and

that is aiding and abetting under RICO.

However, in case this court believes these allegations are insufficient, plaintiffs seek to add

this language in the proposed Second Amended Complaint (Second Revision):

32 AIDING AND ABETTING:

.....Coca Cola and Sedgwick, through the actions of their employees involved in the

handling of Michigan workers compensation claims, and Dr. Drouillard, agreed to

participate in the commission of the predicate acts which are alleged in this

complaint. These employees of Coca Cola and Sedgwick knew Dr. Drouillard and

other “independent medical examiners” wrote reports which were used to deny or

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cut off workers compensation benefits, and knew Dr. Drouillard and other

“independent medical examiners” were doctors who could be relied on to write a

fraudulent report - finding a workers compensation claimant had no work-related

disability regardless of the truth - yet these employees agreed to the use of Dr.

Drouillard and others as “independent medical examiners,” and to the use of their

report to cut off or deny benefits, or to settle a claim for less than its true value due

to the fraudulent reports of Dr. Drouillard and other fraudulent independent medical

examiners, knowing that the mails and wires would be used in furtherance of this

fraudulent scheme. 

Under Driver, supra, plaintiffs’ aiding and abetting allegations are more than sufficient.

/s/ Marshall Lasser 

Marshall Lasser PC, by 

Marshall Lasser P25573

po box 2579

Southfield MI 48307

(248) 647 7722

mlasserlaw@aol.com

ddtalon@gmail.com

Dated: August 17, 2009

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