2007 Year in Review – Verdicts & Settlements

Listen to this article

Containment is the strategy firefighters use when tackling a barn fire, says Madison lawyer Bruce A. Schultz, because barns are usually filled with hay — fuel for the fire. Now, imagine a fire involving burning paper — what is often used as kindling — and a blaze many times the size of a barn fire.

This may explain why it took firefighters three weeks to extinguish the fire at a Quad/Graphics warehouse in Lomira, Wis., in July 2002. One man died in the fire.

“It was literally millions of pounds of burning paper product as fuel, over an area larger than a football field,” says Schultz, of Coyne, Schultz, Becker & Bauer S.C. Schultz was one of three lawyers who represented plaintiffs in their lawsuit against those they alleged were responsible for its multi-million dollar business interruption loss and property damages incurred by the fire.

The lawsuit culminated with a four-week products liability and breach of contract trial in Milwaukee County last fall, with a jury finding that Quad/Graphics was not negligent, and awarding over $63 million in damages. The verdict was the largest reported to Wisconsin Law Journal’s Verdict & Settle-ment Reporter in 2007.

The jury found fault among three manufacturers: HK Systems of New Berlin; Rack Structures Inc. of Livonia, Mich.; and Leavitt Tube Co. of Chicago.

Collapse Causes the Blaze

The fire began on Friday night, July 12, 2002. Quad/Graphics immediately notified its insurer, Industrial Risk Insurers, which in turn immediately hired lawyers Jeffrey R. Zehe and Patrick C. Hess, of Nielson, Zehe & Antas P.C. By Sunday, they were on site to coordinate an investigation, along with their experts. They also notified multiple potential defendants, so they could do the same.

And, they knew they’d need local counsel. They’d worked with Schultz previously, with successful results. He came onboard not long afterward.

The news media had given multiple accounts of the fire. But what the media missed was that the fire did not cause the warehouse’s destruction. Rather, emphasizes Schultz, the defective design and construction of the warehouse, and in particular, its automated storage and retrieval system, caused the warehouse to collapse, which caused the fire.

Schultz says that an employee of defendant HK Systems Inc, the company that designed and installed the storage system, provided important testimony relating to an inspection he conducted prior to the collapse and fire.

Arduous Discovery

Zehe and Hess did much of the plaintiffs’ discovery, spanning four and a half years. Some parties settled out; some were dismissed from the case after learning there was no culpability. Hess approximates they took over 50 depositions, nationwide.

The case was document-intensive; after the documents reached over half a million, they lost count, says Schultz. They used technology to organize and coordinate them all.

They also used DecisionQuest for litigation support with the demonstrative evidence. Like most products liability cases, one of the biggest hurdles was simplifying the technical.

“I always view part of the role of a trial lawyer as to simplify the complex. If I can simplify it to the point where I can understand, anyone can,” says Schultz.

“This was a very technical case. In this day and age, you cannot educate just by the spoken word; you can’t keep anyone’s attention. You have to have visuals. There were models in the courtroom that helped the jurors understand the technical design and the failure and how it occurred, and computer-simulated demonstrations showing how the different parties and their experts thought the collapse precipitated and occurred.”

Adding to the case’s complexity was the fact that there were numerous parties involved in the design, construction and erection of the automated storage and retrieval system and the warehouse building itself. Also, numerous other parties supplied materials, says Thomas C. Hofbauer, who represented Defendant Leavitt Tube Co.

Hofbauer, of McCoy & Hofbauer S.C. in Waukesha, says the case was hard-fought, and that he has great respect for plaintiffs’ counsel. Their evidence against HK and RSI was strong, he observes, but that’s not so when it came to Leavitt.

“In fact, plaintiffs settled with Leavitt before trial pursuant to a Loy agreement, taking its $1 million primary policy and agreeing not to pursue Leavitt beyond the limits of its remaining insurance coverage, leaving only its excess carrier, Lumber-men’s, to defend at trial,” he says. “One juror dissented to the verdict and wanted to award zero dollars to plaintiffs against Leavitt. The remaining jurors compromised and found Leavitt only 10 percent liable.”

The case is not concluded. On Feb. 4, the battle resumes before Milwaukee County Circuit Court Judge Elsa C. Lamelas, to tackle two issues: first, the liability of Leavitt, which was found 10 percent liable, and whether that liability is several, or joint and several; and second, how much is owed to plaintiffs in double costs and prejudgment interest pursuant to its statutory offer of settlement.

WLJ's Verdict & Settlement Reporter Largest Verdict for 2007

Case name: Quad/Graphics Inc., et al., v. HK Systems Inc., et al.
Court: Milwaukee County Circuit Court
Case number: 03CV7184
Injuries claimed: Property damage, business interruption
Original amount sought: $63,335,819
Award: $63,335,819
Judge: Elsa Lamelas
Disposition date: Sept. 27, 2007
Original filing date: July 30, 2003
Date of incident: July 12, 2002
Plaintiffs’ attorneys: Jeffrey R. Zehe, Patrick C. Hess, Nielson, Zehe & Antas P.C., Chicago; Bruce S. Schultz, Coyne, Schultz, Becker & Bauer S.C., Madison
Defense attorneys: Thomas C. Hofbauer, John V. McCoy, McCoy & Hofbauer S.C., Waukesha; Philip Domagalski, Kralovec & Marquard, Chartered, Chicago; Janet Cain, Peterson, Johnson & Murray S.C., Milwaukee; Edward Ruff, Suzanne Crowley, Pretzel & Stouffer, Chartered, Chicago
Plaintiff counsel’s summary: An automated storage system at Quad/Graphics’ printing plant in Lomira collapsed after two months of use while carrying less than 42 percent of its required weight capacity. The collapse started a fire in the stored paper materials, which burned for three weeks. Quad/Graphics’ property insurer, Industrial Risk Insurers, paid $59,000,000 for the resulting property and business interruption damages.

Quad/Graphics and IRI filed suit against a number of parties involved in the design and construction of the storage system. Plaintiffs recovered $19,790,000 in settlements before trial. Plaintiffs went to trial against three defendants and their insurers. HK Systems Inc., is the company Quad/Graphcis hired to design and install the storage system. Rack Structures Inc. (RSI), is the subcontractor that HK hired to design and build the steel rack structure for that system. The walls and roof were attached directly to the rack structure, which was more than a block long and 10 stories tall
. Leavitt Tube Company LLC, manufactured the steel tubes used to make the rack structure columns. Plaintiffs went to trial on their product liability claims against HK, Rack Structures and Leavitt and their breach of contract claim against HK.

Defendants contended that Quad/Graphics was negligent for using the system after learning of weld-quality issues in the rack structure. The jury found that Quad/Graphics was not negligent.

Defendants contended that the architecture/engineering firm Graef, Anhalt Schloemer Associates, which provided engineering consulting to HK and Quad/Graphics, was negligent for allowing Quad/Graphics to use the system after weld-quality issues were discovered. Plaintiffs contended that Graef Anhalt reasonably relied on the advice of HK and Rack Structures that the system was safe to use despite the weld-quality issues.

Claims against HK were tried to the bench and claims against the others were tried to the jury. The court found as a matter of law that the storage system was defective and unreasonably dangerous. The jury determined who was responsible for the defective condition of that system. The jury returned a verdict allocating 51 percent of fault to HK, 39 percent to Rack Structures and 10 percent to Leavitt.

Defense counsel’s commentary: Plaintiffs contended the steel tubes supplied by Leavitt were defective because they allegedly contained open or poorly formed seam welds.

Defense for Leavitt contended that Leavitt merely supplied steel tubing as specifically requested pursuant to its agreement with the steel supplier. The tubing was inspected and manufactured pursuant to the applicable ASTM A 500 standard. Plaintiffs’ evidence of defective welds came from tubes that were subjected to tremendous forces during the collapse and fire; that all of the steel was overhauled during the fire suppression with heavy construction equipment. There were no “pre-collapse” reports of inadequate or open seam welds in the tubing supplied by Leavitt, but various welds performed by other defendants during the rack assembly had failed prior to the collapse. And, despite knowledge of the defective assembly welds performed by HK’s subcontractors, Quad/Graphics continued to load the structure to the point of collapse.

Plaintiffs had recovered $25 million from other parties prior to the verdict. RSI, one of three remaining defendants, was no longer in operation and was not represented at trial.

HK and Leavitt executed Loy settlement agreements whereby their primary layers of insurance were paid to plaintiffs in exchange for protecting them from excess verdicts.

Therefore, the jury trial involved the defendants’ excess carriers only, who were also named as defendants as Wisconsin is a direct action state. The jury trial was followed by a two-day bench trial on insurance coverage affirmative defenses asserted by St. Paul Surplus, one of HK’s excess insurers. Another HK excess layer, Federal Insurance Company, executed a “high/low” settlement agreement with plaintiffs ($1 million/$2.5 million) prior to the verdict.

2007 Largest Verdicts

What follows is a summary of the largest verdict listings, which ran in Wisconsin Law Journal's 2007 Verdict & Settlement Reporter.

Motorcyclist hits trailer
Injuries claimed: Traumatic brain injury
Court: Monroe County Circuit Court
Case name: Schaitel v. Sentry Insurance, et al.
Case number: 04-CV-256
Judge: Steve Abbott
Amount: $1,565,314
Special damages: Past medical expenses: $440,314 (answered by the court); past wage loss: none; future medical expenses: $575,000; plaintiff’s past pain, suffering and disability: $300,000; plaintiff’s future pains, suffering and disability: $250,000
Date of incident: June 18, 2003
Plaintiff’s attorney: Nicholas J. McNamara, Habush, Habush & Rottier S.C., Madison
Defense attorney: William J. Katt, Leib & Katt S.C., Milwaukee
Plaintiff counsel’s summary: Plaintiff was riding his motorcycle south on Highway 27 when he collided with an aluminum trailer that had blown onto the highway from a hardware store parking lot as a result of high winds caused by a storm.
Plaintiff’s negligence theory: The aluminum trailer was not property secured.
Defendant’s position: This was an unforeseeable act of nature and the plaintiff failed to have proper lookout.

Co-worker runs into car wash employee

Injuries claimed: Badly comminuted left femoral fracture and proximal tibial and fibula fractures, all requiring internal fixation and, ultimately, a knee replacement; a second knee replacement will be required in the future
Court: Milwaukee County Circuit Court
Case name: Rocker v. USAA Casualty, et al.
Case number: 02 CV 001069
Amount: $1,078,000
Special damages: Past medical expenses: $135,694; past wage loss: Contested issue; plaintiff argued past wage loss somewhere in the neighborhood of $250,000-$300,000; defendant argued past wage loss was somewhere between $30,000 and $80,000; future medical expenses: $35,787; future loss of earnings: Plaintiff argued there was a number of different ways that future loss of earning capacity
could be computed. Plaintiff suggested loss of future earnings anywhere from $700,000 to over $1 million. Defendant argued there was no future loss of earning capacity.
Date of accident: Feb. 3, 1999
Plaintiff’s attorney: Timothy S. Trecek, Habush, Habush & Rottier S.C., Milwaukee
Defense attorneys: Jacqueline E. Frakes, Eiche & Frakes, Milwaukee; James C. Ratzel, Ratzel & Associates, Brookfield
Plaintiff counsel’s summary: Plaintiff was injured while working at a car wash when a co-employee negligently drove a customer’s car, causing it to strike plaintiff.
Plaintiff’s negligence theory: Negligent operation of a motor vehicle.
Defendants’ negligence theory: Stipulated to negligence.
Noteworthy issues: For a case to go to trial nine years after the date of the accident is somewhat unique. The trial court held that there was no insurance coverage. Plaintiff appealed those decisions and the Court of Appeals certified the issue to the Supreme Court. The case was argued in front of the Supreme Court and, ultimately, the Supreme Court held that a car wash does satisfy the definition of “motor vehicle handler” under Wis. Stat. §632.32(6)(a).

Doc misses shoulder dislocation

Case name: Jatnieks, et al. v. Dr. S., et al.
Court: Marathon County Circuit Court
Case number: 05CV1060
Injuries claimed: Failure to diagnose a right shoulder dislocation
Amount: $602,516
Judge: Patrick M. Brady
Original filing date: Nov. 21, 2005
Date of incident: Dec. 28, 2002
Plaintiff’s attorney: Paul J. Scoptur, Aiken & Scoptur S.C., Milwaukee
Defense attorney: Barrett J. Corneille, Corneille Law Group, L.L.C., Madison
Plaintiff’s expert: Dr. Robert Colyer
Defense expert: Dr. Jack Bert
Insurance: Physicians Insurance Company of Wisconsin
Plaintiff counsel’s summary: Plaintiff fell at home onto her outstretched right arm. X-rays obtained revealed a fracture of the shaft of the right humerus.
Afterward she had multiple office visits with Dr. S. during which she was examined and x-rayed. At no time prior to March 19, 2003, was plaintiff’s right shoulder dislocation diagnosed. Finally, on March 19, 2003, Jatnieks had an attempted closed reduction of the right shoulder dislocation that was unsuccessful. An open reduction was attempted surgically.
On April 8, 2003, an Orthopaedic Associates note indicates healing of right proximal humerus fracture and chronic anterior dislocation of the right shoulder. On Sept. 5, 2003, plaintiff had surgery. Finally, on Nov. 28, 2003, plaintiff had a total shoulder arthroplasty.

Car collides with snowplow

Injuries claimed: Soft-tissue low back injury
Court: Brown County Circuit Court
Case name: Filut v. Ribarchek, et al.
Case number: 05-CV-2373
Judge: Peter J. Naze
Original amount sought: $100,000
Original offer: $35,000
Amount: $554,090
Date of incident: Feb. 6, 2003
Disposition date: March 21, 2007
Original filing date: Dec. 15, 2005
Plaintiff’s attorney: Jacob R. Reis, Habush Habush & Rottier S.C., Appleton
Defense attorney: Stanley J. Lowe, Lowe & Associates, Waukesha
Insurance carrier: Maryland Casualty Insurance Company
Plaintiff’s experts: John D. Birder, vocational rehabilitation; Michael W. Zoelle D.C., Green Bay; Danzhu Guo M.D., Green Bay
Defense expert: Jerome Hagens M.D., Appleton
Plaintiff counsel’s summary: Plaintiff was entering the UPS parking lot in Green Bay before his shift as a part-time worker. He collided with a snowplow driven by defendant that was salting the lot.
Plaintiff argued that his injury prevented him from performing the duties of a full-time UPS driver. Defendants refused to recognize plaintiff’s future loss of earning capacity because plaintiff had never worked as a full-time UPS driver.
The jury found defendant 70 percent at fault for causing the accident and the plaintiff 30 percent.

2007 Largest Settlements

What follows is a summary of the largest settlement listings, which ran in Wisconsin Law Journal's 2007 Verdict & Settlement Reporter.

School bus hits pedestrian

Court: 17th Judicial Circuit Court, Winnebago County, IL (Case name withheld)
Judge: Ronald L. Pirrello
Injuries claimed: C5-6 quadriplegia
Amount: $9 million
Mediator: Gregory P. Guth, Holmstrom & Kennedy P.C., Rockford, IL
Disposition date: Oct. 22, 2007
Filing date: September 2006
Incident date: Nov. 21, 2005
Plaintiff’s attorneys: Keith R. Clifford, John Raihala, Clifford & Raihala, Madison
Defense attorneys: Glen Amundson, Smith Amundson, Chicago
Insurance companies: Selective Insurance; ACE Westches
ter
Plaintiff’s experts: Gary Yarkony M.D., physical rehabilitation, life care planning, Elgin, IL; Charles Linke Ph.D., economist, Champagne, IL; Mark Strauss, accident reconstruction, Champagne, IL; Ned Einstein, bus safety, New York; Richard Fischer, bus safety, mirror safety, Ft. Collins, CO
Defense experts: Michael Hartzmark, economist, Chicago; Michael Pepe, accident reconstruction, Indianapolis; James Sobek, accident reconstruction, visibility, Indianapolis; Michael DeVivo, epidemiologist, life expectancy, Birmingham, AL; Richard Katz M.D., neurologist, life care planner, St. Louis; Mark Hammergen Ph.D., astronomy, Chicago
Plaintiff counsel’s summary: Defendant bus driver turned left at an intersection and struck the 36-year-old female plaintiff who was crossing the intersecting street. He was cited for failure to yield right of way to a pedestrian in a crosswalk, but defended against plaintiff’s claim in part based on the claim that plaintiff was not in the unmarked crosswalk area at the time of impact.
Plaintiff’s experts claimed her life care plan and future medical expenses should be based on a normal life expectancy. Defendants’ experts argued a significantly reduced life span.
The settlement is apparently the second highest settlement/verdict in Rockford’s history.

Traumatic brain injury results from one-car accident

Injuries claimed: Traumatic brain injury
Amount: $5.61 million
Special damages: Settlement was for policy limits on four policies: 1) Umbrella/Auto Owners: $5 million; 2) American Family: $510,000; 3) 1st Auto: $51,000; and 4) Hastings Mutual: $50,000
Date of incident: July 26, 2005
Disposition date: Aug. 1, 2007
Plaintiff’s attorney: Jerome P. Tlusty, Tlusty, Hittner, Kennedy & Freeburg, Schofield
Plaintiff’s experts: Linda Graham R.N., care planner, Roseville, Minn.; Michael J. Guckenberg, vocational rehabilitation, Rhinelander; B&B Productions, day-in-the-life video, Westport, Conn.; Premier Settlement Services, Chuck Derrene, Richfield
Plaintiff counsel’s summary: This was a one-vehicle collision with an underage friend driving the victim’s family vehicle. The minor driver’s parents were divorced, which provided two small policies of liability coverage. The underlying policy of American Family on the vehicle involved paid its limits, and an umbrella on the vehicle paid its policy.
The case settled pre-suit.

Trucker collides with car in construction zone

Injuries claimed: Traumatic brain injury
Court: Rock County Circuit Court
Case name: Calvin v. Zahrt, et al.
Case number: 05 CV 653
Mediator: Attorney Joseph D. McDevitt, McDevitt Mediation Services, Wauwatosa
Amount: $5.2 million
Special damages: Medical expenses: $376,628; future medical expenses and future loss of earning capacity were disputed
Date of incident: Aug. 8, 2004
Plaintiff’s attorney: James R. Jansen, Habush, Habush & Rottier S.C., Madison
Defense attorneys: R. Clay Porter, Dennis, Corry, Porter & Smith LLP, Atlanta; James J. Kriva, Kasdorf, Lewis & Swietlik S.C., Milwaukee
Insurance carrier: Schneider National, Liberty Mutual
Plaintiff counsel’s summary: Plaintiff was a passenger in his grandmother’s car. In a construction zone, where temporary stop signs had been placed in an unusual configuration, a truck driver failed to see the signs requiring him to stop. The grandmother had stopped at her stop sign, set back some 70 feet from the actual intersection. As she drove through the intersection, her car was struck by the semi.
Plaintiff’s negligence theory: Negligent truck driving and negligent placement of traffic control devices.
Defendant’s position: Schneider National contended that the signage of the intersection was improper. Rock Road disagreed.
Defense counsel’s statement: Defendant Schneider National paid $4.9 million and 94 percent of the total settlement and defendant Rock Road paid $300,000 and 6 percent of the total settlement.

Drowsy driver causes collision

Injuries claimed: T-12 fracture with spinal cord bruising
Court: Dane County Circuit Court
Case name: Whitehead v. Willson, et al.
Case number: 05 CV 1670
Mediator: Attorney John M. Moore, Bell, Gierhart & Moore S.C., Madison
Amount: $700,000
Special damages: Plaintiff’s past medical expenses: $171,601
Date of incident: July 3, 2003
Plaintiff’s attorney: James R. Jansen, Habush, Habush & Rottier S.C., Madison
Defense attorney: Rick J. Mundt, Winner, Wixson & Pernitz, Madison
Insurance: Rural Mutual
Plaintiff counsel’s summary: Plaintiff was a passenger in a van operated by defendant when it left I-80 in Iowa and crashed. Defendant apparently fell asleep at the wheel. The case settled in mediation.

Teen’s injuries caused by unlicensed, impaired driver

Injuries claimed: Closed-head injury; fracture of left humerus; fractures of lumbar and thoracic regions of spine; multiple fractures of ribs; lacerations of liver and kidney
Case name: Chesebro v. Lehman, et al.
Case number: Settled pre-suit
Amount: $665,000
Special damages: Past medical bills of $269,379
Date of incident: June 23, 2006
Disposition date: February 2007
Plaintiff’s attorney: Dean P. Laing, O’Neil, Cannon, Hollman, DeJong S.C.
Plaintiff counsel’s summary: Plaintiff, 18, was driving her vehicle with two friends, who were all drinking and doing drugs. Plaintiff gave the keys to her friend who did not have a driver’s license. The driver missed a bend in the road, crashing head-on into a tree.
Plaintiff’s insurance with State Farm Mutual Automobile Insurance Company paid its $500,000 liability limits and $5,000 medical limits.
Defendant’s mother’s insurance with American Family paid its $150,000 liability limits and $10,000 medical limits. The health insurer that paid the medical bills waived its right to subrogation.

2007 Significant Defense Victories

What follows is a summary of the significant defense victories, which ran in Wisconsin Law Journal's 2007 Verdict & Settlement Reporter.

Wheelchair-bound plaintiff cannot recover

Case name: Lipinski v. Dr. F., et al.
Case number: 05-CV-70
Court: Buffalo County Circuit Court
Judge: James Duvall
Injuries claimed: Neurological injuries resulting from bulging discs at C5-7, resulting in quadriparesis whereby the plaintiff is wheelchair-bound with partial use of his hands, and total loss of bowel and bladder control
Original amount sought: In final argument plaintiff’s counsel requested the following damages awards: past health care expenses: $571,223; future health care expenses: $1,910,379; past loss of earning capacity: $158,500; future loss of earning capacity: $1,474,000; past and future pain and suffering: $10 million-$15 million
Highest offer: None
Disposition date: Nov. 2, 2007
Defense attorneys: Barrett J. Corneille, Chester Isaacson, Corneille Law Group LLC; David J. Colwin, Sager, Colwin, Samuelsen & Associates S.C., Fond du Lac; Thomas B. Rusboldt, Weld, Riley, Prenn & Ricci S.C., Eau Claire
Plaintiff’s experts: Alan David M.D., family practice, Milwaukee; Michael Ebersold M.D., neurosurgeon, Rochester, Minn.; John Kostuik M.D., orthopedic surgeon, Baltimore, MD; Stephen Hargarten M.D., ER physician, Milwaukee; Kay Osinski, MSRN, Topeka, Kan.
Defense experts: Eugene Carragee, M.D., orthopedic surgeon, Palo Alto, Calif.; Daniel DeBehnke M.D., ER physician, Milwaukee; Keith Ness M.D., family practice, Mauston; Joseph Cusick M.D., neurosurgeon, Milwaukee
Defense counsel’s summary: Plaintiff was involved in a motor vehicle accident during which he fractured his sternum. At the accident scene he was able to ambulate.
At the emergency room his neurological examination was within normal limits. Plaintiff was admitted for observation for possible cardiac problems relating to the sternal fracture. Hours later, plaintiff lost the ability to move his legs and the partial use of his hands.
The contention was that the medical defendants failed to properly assess plaintiff’s condition at the time of his admission. Plaintiff contended that the nurses were aware of the deteriorating neurological status and ignored it.

Plaintiff loses control of semi-trailer

Case name: Tidmore v. Midwest Trailer Sales Inc.
Case number: 05-CV-3498
Court: Dane County
Judge: Maryann Sumi
Injuries claimed: Paraplegia
Original amount sought: In final argument, plaintiff’s counsel requested: past medical expenses: $88,682; future medical and health care expenses: $2,627,713; past loss of earning capacity: $64,363; future loss of earning capacity: $417,638; past and future pain and suffering: $9,607,479
Disposition date: Feb. 15, 2007
Defense attorneys: Barrett J. Corneille, Mark T. Budzinski, Corneille Law Group LLC, Madison
Plaintiff’s experts: Jerry Wallingford, accident reconstruction, San Antonio; Dean Jacobson, metallurgist
Defense experts: Jim Schultz, accident reconstruction, Carson, Calif.; David Coates, metallurgist, Gardena, Calif.
Defense counsel’s summary: Plaintiff truck driver was driving an older semi-trailer sold by the defendant 11 years earlier. Plaintiff was driving on a two-lane road when he lost control of the tractor-trailer, causing a one-vehicle accident that resulted in his paraplegia. Plaintiff contended that the trailer purchased from the defendant was defective and unreasonably dangerous as a result of numerous substandard welds that were utilized to attach the rear axle assembly of the trailer.
Defendant took the position that the axle separated from the trailer as a result of the plaintiff losing control of the tractor-trailer due to road conditions and wind.

Amputee unsuccessfully seeks millions in damages

Case name: Parker v. Dr. B.
Case type: Medical malpractice
Case number: 04-CV-5892
Court: Rock County
Judge: John Roethe
Injuries claimed: Above knee amputation of lower extremity
Original amount sought: Plaintiff’s counsel requested damages for medical expenses and loss of earnings in the amount of $650,000, future care costs in the amount of $540,000, and pain and suffering of “at least $2 million.”
Highest offer: $500,000
Disposition date: March 30, 2007 (This matter is presently before the Wisconsin Court of Appeals.)
Defense attorneys: Barrett J. Corneille, Colleen L. Meloy, Corneille Law Group LLC; David McFarlane, Bell, Gierhart & Moore S.C., Madison
Plaintiff’s experts: Dr. William Turnipseed, subsequent treating physician and expert on liability and damages, Madison; Dr. John Golan, vascular surgeon, Chicago
Defense experts: Dr. Alan Koslow, vascular surgeon, Des Moines
Defense counsel’s summary: Plaintiff contended that defendant was negligent for failing to treat and/or refer the patient for an occlusion of her lower extremity following bypass surgery. The alleged delay in diagnosing the vascular problem led to the partial amputation of plaintiff’s lower extremity.

The thing didn’t speak for itself

Case name: Wolters v. Mercy Health Care System, et al.
Case type: Medical malpractice
Case number: 04-CV-1358
Court: Rock County Circuit Court
Judge: James Welker
Injuries claimed: Neurological injury to the upper extremity causing pain and weakness
Original amount sought: Plaintiff’s counsel requested the following awards from the jury during final argument: past health care expenses: $96,000-$129,000; past loss of income: $75,000; future loss of income: $375,000-$502,000; past pain and suffering: $300,000; future pain and suffering: $300,000
Highest offer: None
Disposition date: May 31, 2007
Defense attorneys: Barrett J. Corneille, Carley Peich Kiesling, Corneille Law Group LLC, Madison; Douglas S. Knott, Leib & Katt S.C., Milwaukee
Plaintiff experts: Greg Trost M.D., neurosurgeon, standard of care and causation, treating physician, Madison; Kenneth Candido M.D., anesthesiologist, standard of care and causation, Chicago; Miroslav Backonja M.D., neurologist, damages, treating physician, Madison; Janice Singles Psy.D., psychologist, causation and damages, treating psychologist, Madison; Anthony Gamboa Ph.D., forensic economist, vocational economics, damages, Miami
Defense experts: Casey Blitt M.D., anesthesiologist, standard of care and causation, Tucson, Ariz.; Thomas Lyons M.D., neurosurgeon, standard of care and causation, Neenah; Nancy Bruton-Maree, certified registered nurse anesthesiologist, nurse anesthesia, standard of care, Raleigh, N.C.; Donald Feinsilver Ph.D., forensic psychiatrist, causation, West Allis; David Jones Ph.D., economist, damages, St. Paul, Minn.; Michael Campbell, vocational consultant, damages, Pewaukee
Defense counsel’s summary: Plaintiff underwent a routine hernia procedure. At the conclusion of the procedure, he claimed to have suffered neurological damage to his upper extremity. This case was submitted to the jury under the theory of res ipsa loquitor.

Docs allegedly misdiagnosed coronary artery disease

Case name: Cain v. Dr. A. and Dr. E.
Case Number: 05-CV-1131
Court: Rock County Circuit Court
Judge: John Roethe
Injuries claimed: Wrongful death
Original amount sought: $900,000
Highest offer: Zero dollars
Disposition date: Feb. 2, 2007
Defense attorneys: Barrett J. Corneille, Carley Peich Kiesling, Corneille Law Group LLC, Madison
Plaintiff’s experts: Robert C. Cates M.D., family practitioner, standard of care and causation, Brodhead; James V. Talano M.D., cardiologist, standard of care and causation, Naples, Fla.; Joel K. Kahn M.D., cardiologist, standard of care and causation, Troy, Mich.; Cynthia Engebose, vocational consultant, damages, Pewaukee; Karl Egge Ph.D., economist, damages, St. Paul, Minn.
Defense experts: Charles Stone, M.D., cardiologist, standard of care and causation, Madison; Philip Newman, M.D., cardiologist, standard of care and causation, Newport Beach, Calif.; David McAlpine M.D., family practitioner, standard of care and causation, Woodbury, Minn.; Kent Heck M.D., pathologist, causation, Houston, TX
Defense counsel’s summary: This medical negligence case involved claims against both a family practitioner and a cardiologist that they were negligent for failing to properly diagnose and treat the patient’s coronary artery disease, leading to the patient’s death.

Driver not liable for motorcyclist’s death

Injuries claimed: Death
Court: Trempealeau County
Case name: Stutte v. American Family Mutual Insurance Company
Case number: 05-CV-176
Original amount sought: $619,036
Original offer: $50,000
Date of incident: Sept. 11, 2004
Disposition date: Feb. 2, 2007
Original filing date: Sept. 27, 2005
Plaintiff’s attorney: Christine Bremer Muggli, Bremer & Trollop S.C., Wausau
Defense attorney: Justin H. Silcox, Kostner, Koslo & Brovold LLC, Arcadia
Insurance carrier: American Family Mutual
Plaintiff’s expert: Jeff Peterson P.E., Madison
Defense expert: Greg Graveson, accident reconstruction, St. Paul, Minn.
Defense counsel’s summary: Defendant, age 16, was driving on a highway and slowing to make a left turn. She was being followed by a group of six motorcyclists. The first three riders passed her on the left, each noticing in their rear view mirrors that she had her left turn signal on. Decedent was fourth in line, attempted to pass on the left, and glanced off of defendant’s rear bumper, as she was into her turn. The fifth rider saw her turn signal blink no fewer than 15 times prior to her turn. The sixth rider gave no statement on the scene, but sent a written statement and diagram to the investigating officer two days later that was completely at odds with Lucht’s account.

Plaintiff is negligent at construction site

Injuries claimed: Two broken vertebra in lumbar region of back, scalp wound, fracture of left distal tibial fibula and ankle
Case name: Tremel v. Schmutzer, et al.
Case number: 05-CV-271
Judge: Robert E. Kinney
Original amount sought: $250,000-$500,000
Original offer: $60,000
Date of incident: Jan. 19, 2005
Disposition date: Jan. 23, 2007
Original filing date: Aug. 31, 2005
Plaintiffs’ attorney: D. James Weis, Habush, Habush & Rottier S.C., Rhinelander
Defense attorneys: Timothy L. Vocke, Eckert, Kost & Vocke LLP, Rhinelander; Terrance E. Davczyk, Davczyk & Verline LLC, Wausau
Insurance carrier: West Bend Mutual Insurance
Company
Plaintiff’s expert: Dr. Robert Leggon, orthopedics, Marshfield
Defense counsel’s summary: Plaintiff walked into a house that was under construction and fell through a hole in the floor. He landed on the recently completed concrete floor in the basement, breaking his ankle and lower leg, striking his head on the wall and breaking two vertebras in his lumbar back.
The case was tried on liability. Defendants argued that plaintiff had no right, duty, authority or consent to enter onto the premises and that he was a trespasser. The jury found plaintiff 50 percent causally negligent, the General Contractor 20 percent causally negligent, and the subcontractor 30 percent causally negligent.

Plaintiff strikes unmarked power line

Case name: Reeve v. Findorff and Staff Electric
Case number: 04-CV-3285
Court: Dane County Circuit Court
Judge: William Hanrahan
Injuries claimed: Neurological injuries of plaintiff’s upper extremities
Original amount sought: Plaintiff’s counsel requested the following damage amounts in final argument: past health care expenses: $5,678; past wage loss: $2,500; past pain and suffering: $60,000; future pain and suffering: $350,000
Highest offer: $20,000 on behalf of Findorff
Disposition date: June 14, 2007
Defense attorneys: Barrett J. Corneille, Laure Rakvic Farr, Corneille Law Group LLC, Madison; R. Scott Nada K Sizemore & Associates, Brookfield
Plaintiff’s experts: Dr. Charles Miley, neurologist, Madison; Dr. Michael Frucht, neurologist, Dodgeville; John DeRosia, photogrammetrics, Hoschton, GA.; Timothy Knaupp, safety director from plaintiff’s place of employment
Defense experts: David Rudig, Menomonee Falls
Defense counsel’s summary: Plaintiff suffered neurological injuries to his upper extremities after he struck an unmarked electrical power line on a construction site.
The court construed the Digger’s Hotline statute to apply to a general contractor that placed a temporary electric line. Accordingly, the court found Findorff negligent as a matter of law for not marking the temporary line. Issues of negligence were also argued against Staff Electric for not burying the line deep enough.
The jury compared the negligence of Findorff for not marking the line, Staff for not burying the line deep enough, and the plaintiff for cutting across the buried line. The jury found plaintiff 59 percent at fault.

Defense prevails in rear-end accident

Case name: Weadge, et al. v. American Family Mutual Insurance Company and Ransom
Court: Rock County Circuit Court
Case number: 06-CV-1053
Injuries claimed: Thoracic disc bulge
Original amount sought: $241,147 pre-suit and over $251,000 during closing argument
Highest offer: $8,581 in a statutory settlement offer by American Family
Judge: John W. Roethe
Disposition date: Oct. 2, 2007
Original filing date: July 26, 2006
Date of incident: Jan. 7, 2004
Plaintiff’s attorney: Gregory F. McDonald, McDonald & Gustafson S.C., Janesville,
Defense attorneys: Kevin L. Ferguson, American Family Mutual Insurance Company, Madison; Scott L. Schroeder, Scott L. Schroeder S.C., Janesville
Plaintiffs’ experts: Jeff Nolte, chiropractor, Janesville; Thomas Berentsen, neurology, Janesville
Defense experts: Robert Weber, engineering, Muskego; Michael Borkowski, occupational medicine, Butler
Defense counsel’s summary: An uninsured driver rear-ended plaintiff’s truck. No one claimed injury at the accident scene and law enforcement was not called. However, the accident was reported several hours later and according to the investigating officer, there was very minor damage to the truck.
Plaintiff alleged a permanent injury to his spine as a result of the accident, and that it would require future chiropractic treatment.
Defense expert Weber testified that statistically one would not expect any permanent injury as a result of such a low-velocity impact. Defense expert Borkowski testified that he did not believe plaintiff suffered any injury as a result of the accident.
The jury came back with a defense verdict after 33 minutes of deliberation.

Defendant isn’t liable for 4-car collision

Injuries: Lumbar facet arthropathy and stenosis and three herniated cervical discs
Case name: Yannaras, et al. v. Thomas, et al.
Court: Milwaukee County Circuit Court
Case number: 05 CV 834
Amount sought: $250,000
Highest offer: $85,000
Judge: John A. Franke
Disposition date: May 1, 2007
Original filing date: Jan. 27, 2005
Date of Incident: Feb. 8, 2002
Plaintiff’s attorney: Michael K. Scott, Davis and Kuelthau S.C., Milwaukee
Defense attorneys: Thomas J. Binder, Simpson & Deardorff S.C., Milwaukee; James A. Ryan, Kasdorf, Lewis & Swietlik S.C., Milwaukee; W. Timothy Steinle, Terschan, Steinle & Ness, Milwaukee
Plaintiff’s experts: Dr. Jeffery L. Minikel, orthopedic surgeon, Milwaukee; Dr. N.M. Reddy, physical medicine and rehabilitation, Milwaukee; Dr. Malini Mehta, internal medicine, Milwaukee; Dr. Frederick Romm, internal medicine, Milwaukee
Defense experts: Dr. Marc J. Novom, neurologist, Milwaukee
Defense counsel’s summary: Plaintiff was driving on the freeway in downtown Milwaukee in rush hour traffic. His was the first vehicle in a four-vehicle chain reaction accident that occurred when traffic ahead came to a sudden stop.
Plaintiff claimed injuries to his lumbar spine, requiring surgery at L2-3, and three herniated cervical discs, requiring future surgery.
The defense contended there was insufficient evidence that either of two defendant drivers caused an impact, injuring plaintiff. The defense further contended that the plaintiff suffered a pre-existing degenerative condition in his lumbar spine and cervical spine.