2008 Year in Review – Verdicts & Settlements

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Verdicts & settlements Top 5 Verdicts for 2008

The following are the top five verdicts as reported to Wisconsin Law Journal’s Verdict & Settlement Reporter in 2008.

High-risk pregnancy isn’t referred to OB
Injuries claimed: Brain damage due to lack of oxygen during birth, causing cerebral palsy and developmental delays
Court: U.S. District Court, Eastern District of Wisconsin
Case: Fonseca, et al. v. U.S.
Case No.: 01-C-544
Judge: Lynn Adelman
Original amount sought: $7.3 million
Original offer: Less than $7 million
Amount: $18.2 million
Date of incident: June 19, 1998
Disposition date: July 17, 2008
Plaintiff’s attorney: Euel W. Kinsey, McKeen & Associates P.C., Detroit, Mich.; Michael F. Hupy, Hupy and Abraham S.C., Milwaukee; Robert B. Moodie, Hippenmeyer, Reilly, Moodie & Blum S.C., Waukesha
Defense attorney: Lisa T. Warwick, United States Department of Justice, Office of U.S. Attorney, Milwaukee
Insurance carrier: None
Plaintiff’s experts: Garrett Burris M.D., pediatric neurologist, Chesterfield, Mo.; Kevin L. Schutz, life care planner; Robert Niendorf Ph.D., economist, Omro, Wis.; Dr. Edward H. Kovnar, advanced health care, outpatient records, Glendale
Defense experts: Trudy Koslow, life care planning, Richmond, Va.; Richard Meadows M.D.
Noteworthy evidentiary issues: Placement of any award for future medical costs in a reversionary trust; the Government’s obligation with respect to plaintiffs’ past medical expenses paid by Medicaid funds
Plaintiff counsel’s summary of the facts: Plaintiff Lugo’s daughter sustained personal injuries as a result of the negligent and wrongful acts by the staff at the Sixteenth Street Community Health Center during delivery.
Lugo was at high risk for complications because of her history of having large babies and her symptoms of gestational diabetes. Despite these risks, she was not referred to a specialist or obstetrician.
A midwife delivered the baby, who was stuck in the birth canal for more than 20 minutes. As a result, she suffered severe brain injuries due to the lack of oxygen. The child is now permanently and totally disabled.
The court awarded plaintiffs $21 million, but the parties later negotiated an $18.2 million settlement to avoid appeal.
Length of trial: Two days
Jury or bench: Bench trial

Medical malpratice: brain damage
Injuries claimed: Significant brain damage; displaced fractures of both hips (requiring hip replacement surgery); four fractured vertebrae; three cracked ribs.
Court: Milwaukee County
Case name: Larry A. Schultz, et al., vs. Wisconsin Injured Patients & Families Compensation Fund, et al.
Case number: 07CV000296
Judge: David Hansher
Verdict & settlement: Verdict in favor of plaintiff
Award: $10,084,982
Special damages: Plaintiff’s past medical expenses: $584,982; plaintiff’s past wage loss: None; plaintiff’s future medical expenses: $4,500,000; plaintiff’s future loss of earning capacity: None; plaintiff s future losses (Other): past and future pain and suffering, disability and disfigurement: $5 million
Date of incident: Feb. 20, 2006
Disposition date: May 2008
Plaintiffs attorney (firm): Daniel A. Rottier, James M. Fergal, Habush Habush & Rottier S.C.
Defendants attorney (firm): Mary K. Wolverton, Peterson, Johnson & Murray, S.C.
Insurance carrier: Continental Casualty Company — primary coverage for each defendant up to $1 million; Wisconsin Injured Patients and Families Compensation Fund — for each defendant for any amount exceeding $1 million for each Compensation Fund — for each defendant for any amount exceeding $1 million for each.
Plaintiff’s negligence theory: On Feb. 20, 2006, Larry A. Schultz was being treated for Multiple Sclerosis (“MS”), and was to receive a test dose of Baclofen. An inappropriate contrast was used to check needle placement within the spinal cord. The contrast used was a neurotoxin, and caused severe neurologic injuries, both motor and cognitive.
Defendant’s position: The defense counsel argued that at least one other physician was negligent as well. The defense contested whether the physical injuries were caused by the contrast, or whether they were from his MS.

Personal Injury: Motor vehicle accident
Injuries claimed: Right foot degloving injury over the dorsum; bilateral calcaneal fractures; right tib/fib fractures; right femur fracture; extensive scarring to the bilateral thighs and right ankle
Court: Marinette County
Case name: Denise A. Derepkowski vs. Secura Insurance A Mutual Company, et al.
Case number: 07CV110
Judge: David Miron
Verdict & settlement: Verdict in favor of plaintiff
Original offer: $500,000.00 at mediation
Award: $2,824,586
Special damages: Plaintiff’s past medical expenses: $408,086; plaintiff’s past wage koss: $58,351; plaintiff’s future medical expenses: $47,000-$64,000; plaintiff’s future loss of earning capacity: $6,000-$11,000
Date of incident: Oct. 19, 2005
Disposition date: Sept. 9-11, 2008
Plaintiffs attorney (firm): Ralph J. Tease, Jr. and Joseph M. Troy, Habush Habush & Rottier S.C.
Defendants attorney (firm): Peter J. Hickey, Everson Whitney Everson & Brehm, S.C.
Insurance carrier: Secura Mutual In
surance Company
Plaintiffs expert witnesses: Dr. Rolf Lulloff, M.D., Green Bay; Dr. Gregory Schmeling, M.D., Milwaukee; Dr. John Hijjawi, M.D., Milwaukee; Dr. Brad Grunert, Ph.D., Milwaukee
Plaintiff counsel’s summary of the facts: Denise Derepkowski was a front seat passenger in a vehicle driven by Calvin Noffke. Noffke lost control of the vehicle and it rolled several times.
Plaintiff’s negligence theory: The plaintiff accompanied Calvin Noffke and Thomas Burgess to a restaurant for dinner and drinks. Burgess drove the group to the restaurant in his 2005 Chevrolet Tahoe. After 5-6 hours of eating and consuming alcohol, the group decided to leave the restaurant to go to Noffke’s home. Before departing, Burgess and Noffke agreed that Noffke would drive, and as a result, Burgess gave Noffke the keys to his vehicle. As they left the restaurant, with Noffke now driving, the plaintiff was in the right front passenger seat with her seatbelt and shoulder harness fastened. After traveling a short distance down a rural highway, Noffke lost control of the vehicle, causing it to leave the roadway, enter the ditch, and roll over several times.
The claim of negligence against Noffke was that he was driving while intoxicated (BAC of .202) and negligently lost control of the vehicle that he was operating. The claim against Burgess was that he negligently entrusted his vehicle to an intoxicated person. (i.e. Noffke)
Defendant’s position: The defendants claimed that the plaintiff was contributorily negligent for getting in the vehicle with an intoxicated driver (i.e. Noffke). This claim was bolstered by the fact that the plaintiff was also intoxicated (BAC of .246).

Medical malpractice
Injuries claimed: Cognitive injuries and left-sided weakness (paralyzed left hand and weakened left leg)
Court: Fond du Lac County
Case: Jandre v. Bullis
Case no.: 04CV363
Judge: Robert J. Wirtz
Original offer: None
Amount: $2 million
Special damages: Past medical expenses (by stipulation): $200,000; past wage loss: $293,159; future medical expenses: $209,112; future loss of earning capacity: $673,706; future pain and suffering: $357,812; past pain, suffering and disability: $119,271; losses for Mrs. Jandre (society and companionship): $112,500; nursing services: $45,625
Date of incident: June 13, 2003
Trial dates: Feb. 25-March 7, 2008
Plaintiff’s attorney: D. James Weis, Rhinelander, James M. Fergal, Waukesha, Habush, Habush & Rottier S.C.
Defense attorney: James R. Gutglass, Gutglass, Erickson, Bonville & Larson S.C., Milwaukee; John F. Mayer, Nash, Spindler, Grimstad & McCracken LLP, Manitowoc
Insurance carrier: Physicians Insurance Company; Wisconsin Injured Patients and Family Compensation Fund
Liability policy limits: $1 million for PIC; infinity for the Fund
Plaintiff counsel’s summary of the facts: Plaintiff Jandre presented at St. Joseph’s Hospital West Bend with a history of slurred speech, droopiness of his lower left side of face and unsteadiness on his feet. Dr. Bullis diagnosed Bells Palsy. Thereafter Jandre suffered a stroke caused by a blockage in his right carotid artery. Plaintiff argued Bullis should have ruled out an ischemic neurologic event as well. If so, the stroke and resulting injuries would not have occurred.
Plaintiff’s negligence theory was a lack of informed consent and negligence in treatment. The defense position was a denial of any negligence and/or the need to give informed consent.
Jury or bench: Jury trial

Top 5 Settlements for 2008

The following are the top five settlements as reported to Wisconsin Law Journal’s Verdict & Settlement Reporter in 2008.

2008 Largest Settlements

What follows is a summary of the largest settlement listings which ran in Wisconsin Law Journal’s Verdict & Settlement Reporter in 2008.

Truck collides with impaired motorcyclist
Case: Scheel v. Mielke
Court: Dodge County
Insurance: West Bend Mutual Insurance
Plaintiff’s attorney: Timothy S. Trecek, Habush, Habush & Rottier S.C., Milwaukee
Date of incident: April 16, 2005
Plaintiff’s injuries: Amputation of right leg below the knee, facial injuries, forehead lacerations, cracked/missing teeth, fractured right forearm
Plaintiff’s expert: Skogen Engineering
Past medical expenses: $263,312
Past wage loss: $19,440
Future medical expenses: Over $1 million
Plaintiff’s first demand: $4 million
Defendant’s first offer: $1 million
Amount: $2.2 million
Plaintiff counsel’s summary of the facts: Plaintiff was driving his motorcycle in Dodge County. Defendant was driving a truck owned by Rennhack Construction and was stopped at a stop sign. Plaintiff was leaving the intersection and defendant pulled out from the stop sign into plaintiff’s path, causing the two vehicles to collide. Plaintiff flew off of his motorcycle and landed in a ditch off the roadway.
Issues: Plaintiff had marijuana in his system, and possessed drug paraphernalia and marijuana at the time of the accident.

Workplace accident yields $1.4 million settlement
Case: Ritchie v. Speedway Sand & Gravel Inc.
Court: Dane County
Case No.: 06CV2584
Mediator: John R. Teetaert
Insurer(s): Cincinnati Insurance Company
Plaintiff attorney: Craig A. Christensen, Habush, Habush & Rottier S.C., Appleton
Defendant attorney: Brian C. Hough, Axley Brynelson LLP, Madison
Date of incident: Oct. 30, 2003
Plaintiff’s injuries: Knee contusion, Chronic Regional Pain Syndrome (CRPS) and Post Traumatic Stress Disorder (PTSD)
Plaintiff’s past medic
al expenses: $148,681
Plaintiff’s past wage loss: $169,791
Amount: $1.4 million
Plaintiff’s expert(s): W. Bradford Lyles M.D., Child and Family Consultants, Green Bay; Douglas A. Yeatman M.D., Bellin Health Brain, Spine & Pain Center, Green Bay; John D. Birder M.S., DePere
Defense expert(s): Jerome Lerner, M.D., Advanced Pain Management, Franklin; Sridhar V. Vasudevan, M.D., Sheboygan
Plaintiff counsel’s summary of the facts: Plaintiff was working on a job site when defendant’s employee, who was operating a soil compactor in an area located above a retaining wall, allowed the soil compactor to fall over the retaining wall, striking plaintiff.

Head-on collision causes total disability
Case: Farvour v. American Family Mutual Insurance Company
Injuries claimed: Comminuted fractured hip, fractured ankle, lacerated knee, bilateral rotator cuff tear, fractured wrist and fractured index finger
Original amount sought: $1,150,000
Amount: $1.1 million; settlement reached prior to filing a cause of action
Past medical expenses: $257,944
Future medical expenses: $85,000
Loss of wages: $56,282
Date of accident: July 25, 2007
Disposition date: July 30, 2008
Claimant’s attorney: Willard P. Techmeier, Techmeier Law Firm, Milwaukee
Insurance carrier: American Family Mutual Insurance Company
Claimant’s experts: Francis J. Rotter M.D., orthopedic surgery, Glendale; Timothy J. Riley M.S., CRC, vocational rehabilitation, Milwaukee; Richard J. Meadows Ph.D., economist, Milwaukee
Claimants’ counsel’s summary of case: Claimant Farvour, age 47, was driving northbound on a highway when defendant, driving southbound, lost control of his truck, crossing the center line, and smashing head on with her vehicle.
The driver of the truck was cited for failing to drive on the right side of the roadway. Both vehicles were totaled.
Farvour will need a total hip replacement, an ankle fusion, surgical removal of the plate from her left forearm. She was rendered totally disabled. It was the opinion of Farvour’s economist that she sustained a total economic loss, loss of past wages of $56,282, and present value loss of earnings of $680,000.

Pepsi truck injures plaintiff
Case: Pollack v. Pepsi Cola Co. of Antigo
Court: Shawano County
Case no.: 07-CV-86
Mediator: Skip Beisenstein
Plaintiff’s attorney: David E. Sunby, Habush, Habush & Rottier S.C., Wausau
Defendant attorney: Thomas L. Williams, Gabert, Williams & Farb LLP, Appleton
Date of incident: Jan. 26, 2005
Plaintiff’s negligence theory: Regular failure-to-yield case
Defendant’s position: Some contributory negligence
Plaintiff’s injuries: Fractured both legs, eight ribs, and nose; whiplash; back injuries. He underwent open reduction internal fixation of his right ankle right after the accident. Several months later he underwent surgery on his right knee.
Plaintiff’s past medical expenses: $118,575
Plaintiff’s past wage loss: $45,675
Plaintiff’s future loss of earning capacity: $400,000-$800,000
Plaintiff’s first demand: $1,760,000
Defense’s first offer: None
Amount: $850,000
Plaintiff counsel’s summary of the facts: The driver of a Pepsi truck turned left in front of plaintiff.

Surgical tech botches procedure
Case name: Kretschmer, et al. v. Medical Protective Company
Court: Milwaukee County
Case no.: 06 CV 4665
Injuries claimed: Complex regional pain syndrome of right leg
Original amount sought: $1 million
Highest offer: $750,000
Amount: $750,000; settled prior to trial
Judge: Patricia McMahon
Disposition date: Oct. 25, 2006
Date of incident: Feb. 10, 2003
Plaintiff’s attorney: Merrick R. Domnitz, Anthony J. Skemp, Domnitz & Skemp S.C., Milwaukee
Defense attorneys: Mary K. Wolverton, Peterson, Johnson & Murray, S.C., Milwaukee; Jeffrey T. Nichols, Crivello, Carlson & Mentkowski S.C., Milwaukee; Mary Smrz, Hinshaw & Culbertson, Chicago
Insurance carrier: Medical Protective Company; Physicians Insurance Company
Plaintiff’s experts: Clayton J. Frank M.D., neurosurgery/orthopedic surgery, Milwaukee; John E. Brusky M.D., anesthesiology/pain medicine, Milwaukee; Cully R. White M.D., neurosurgery, Milwaukee; Anita Habetler, Milwaukee
Plaintiff counsel’s summary of facts: In 1998, plaintiff Kretschmer suffered a back injury. In April 1999, Kretschmer came under the care of Dr. Clay Frank, an orthopedic surgeon.
Frank performed an L5-S1 anterior lumbar inter-body fusion (ALIF) and anterior plating utilizing a Medtronics triangular plating system, which utilizes a triangular plate anchored to L5 at its tip and anchored at its base to S1 on the left and right by screws, the length of which are determined by the surgeon based upon pre-op MRI. Frank determined that the screws appropriate for Kretschmer were 30mm long. It was determined, post-surgery, that the screw that had been inserted was 35mm long. In discovery the defense admitted that a surgical tech negligently provided the too-long screw.

2008 Defense Victories

The following are a couple of defense verdicts reported to Wisconsin Law Journal’s Verdict & Settlement Reporter in 2008.

Significant Defense Verdicts 2008

Pedestrian darts into bicyclist
Case name: Hinkel, et al. v. American Family, et al.
Court: Dane County
Case no.: 07-CV-1061
Judge: C. William Foust
Injuries claimed: Right broken clavicle
Original amount sought: $45,000
Original offer: $20,000
Amount: Zero dollars; plaintiff found 63 percent causally negligent, defendant found 37 percent negligent
Date of incident: April 1, 2004
Disposition date: Oct. 14, 2008
Original filing date: March 29, 2007
Plaintiff’s attorney: Thomas E. Goss Jr., Mueller, Goss & Possi S.C., Milwaukee
Defense attorney: Roger S. Flores, American Family Insurance Company, Madison
Insurance carrier: American Family Insurance Company
Defense counsel’s summary of the facts: A pedestrian, plaintiff Hinkel, received no money for injuries sustained in a 2004 collision with a bicyclist, defendant Fidler, after a jury determined the pedestrian was more at fault than the bicyclist.
Although the parties agreed to damages of $40,000, they could not agree as to who was responsible for the accident. The case was tried strictly on liability. Defendant argued plaintiff was liable because she darted into a crosswalk without looking.
Defendant offered to settle on a 50/50 basis ($20,000 to plaintiff), but because she claimed she did not bear any fault, she believed she was entitled to the full $40,000.

Minor accident — minor award
Case name: Gates v. Goodall and American Family
C
ourt: Dane County
Case no.: 06CV1732
Injuries claimed: Right shoulder, neck and arm pain
Original amount sought: $49,000 at mediation
Highest offer: Defendants’ statutory offer for $9,000, plus costs
Amount: $7,697; reduced by taxable costs to $6,470; judgment satisfied with $6,546
Judge: Juan B. Colas
Disposition date: April 1, 2008
Date of incident: Nov. 11, 2003
Plaintiff’s attorney: Briane F. Pagel Jr., Krekeler Strother S.C., Madison
Defense attorney: Kevin L. Ferguson, American Family Insurance Company, Madison
Insurance company: American Family Insurance Company
Plaintiff’s expert: Nathan Considine, chiropractor, Middleton
Defense expert: Michael Borkowski, occupational medicine, Waukesha
Defense counsel’s summary of case: After a minor traffic accident, police came to the scene. There were no complaints of injury and the officer didn’t believe there was sufficient damage to prepare a Wisconsin Motor Vehicle Accident Report. Plaintiff didn’t seek treatment until the following day, going to her established chiropractor complaining of right shoulder, neck and arm pain. Despite being released from his care about two months later, she continued to complain of pain.
The jury awarded $2,697 for past medical and hospital expenses and $5,000 for past pain, suffering and disability. Plaintiff failed to get any future damages questions on the verdict.