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Attorneys seek millions as O’Donnell lawsuit draws to a close

By: Beth Kevit, [email protected]//November 19, 2013//

Attorneys seek millions as O’Donnell lawsuit draws to a close

By: Beth Kevit, [email protected]//November 19, 2013//

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Investigators look over where the facade of the ODonnell Park parking structure that collapsed last Thursday in Milwaukee. (Photo by Joe Yovino)
Investigators look over a portion of the O’Donnell Park parking garage shortly after a facade panel fell off the structure in 2010. (Staff photo by Joe Yovino)

A monthlong trial in a wrongful death lawsuit stemming from the 2010 façade failure at the O’Donnell Park parking garage neared an end Tuesday afternoon with attorneys delivering closing arguments.

The jury was expected to begin deliberations at 9 a.m. Wednesday.

Jared Kellner, 15, of Greenfield, died June 24, 2010, while walking to Henry Maier Festival Park to attend Summerfest with Steven, Amy and Eric Wosinski. A 13½-ton concrete façade panel fell from the Milwaukee County-owned parking garage as Kellner and the Wosinskis were exiting, killing Kellner and injuring Eric and Amy Wosinski.

During closing arguments Tuesday, attorneys for the Kellners and Wosinskis laid full blame for the failure on Random Lake-based Advance Cast Stone Co.

Allan Foeckler, an attorney with Cannon & Dunphy SC who is representing Jared Kellner’s mother, Dawn Kellner, said Advance Cast Stone, which manufactured and installed the garage’s concrete panels, strayed from engineering designs when attaching the panels to the structure. The company should have used coil rods and sleeves, he said, but instead used a drill-and-pound method to hang the panels and did not receive prior approval from project engineer Dietz Drafting and Design Inc., Burlington, for the deviation.

That unapproved deviation caused the panel to fall two decades later, Foeckler said.

He asked the jury to award Dawn Kellner and her son’s estate between $7.5 million and $10.5 million in compensation for Jared Kellner’s death. Advance Cast Stone also should face tens of millions in punitive damages, Foeckler said.

Ross Anderson, an attorney with Whyte Hirschboeck Dudek SC who represents Milwaukee County, said Advance Cast Stone breached its contract with the county.

The company was required by contract to reveal, through as-built drawings, any deviation from the installation techniques approved before construction started.

Anderson said the as-built drawings the county had on file did not show any change in how the panels were hung from the parking structure’s parapet walls.

When Eric and Amy Wosinski were injured, their attorney, Tim Andringa of Cramer, Multhauf and Hammes LLC, said, the entire family suffered severe emotional distress.

Andringa tallied the compensatory damages he claimed the Wosinskis are entitled to for pain and suffering, lost wages and other reasons during his closing argument, asking jurors to award roughly $17.6 million to the family. Beyond that, he said, Advance Cast Stone should face $22 million in punitive damages, linking the award to the age of the structure.

“They’ve had 22 years,” Andringa said, “to own up.”

James Coates, Advance Cast Stone’s foreman on the project, told a detective in September 2010 that Richard Dietz, owner of Dietz Drafting and Design, approved the drill-and-pound method, Anderson said, but no supporting documentation was found.

The drill-and-pound method, Anderson said, gave the panels only one-fifth the support Dietz called for in his design.

Furthermore, Anderson said, Advance Cast Stone was required to tell the county what maintenance would be necessary to ensure the parking garage remained safe. The company did not give the county a maintenance manual, he said, and the county had no reason to believe maintenance would be necessary because the connections Dietz designed to hold the panels in place should have been sealed off.

If Advance Cast Stone had followed Dietz’s design, Anderson said, no maintenance would have been necessary.

He said the county is eligible to receive $6.66 million in damages, which would cover costs incurred to remove other panels a study determined were installed incorrectly and to close the structure until repairs could be made.

Matthew McClean, an attorney with Davis & Kuelthau SC who represents Advance Cast Stone, disputed the claim that all the county’s repairs were necessary and that the company was at fault for not delivering a maintenance manual.

The county could have reinforced existing panels, he said, rather than replacing those a study identified as dangerous, a process that would have cost less. The county’s claim that it never received a maintenance manual is flawed, McClean said, because such a manual is not necessary for the basic building maintenance a structure such as O’Donnell Park would require.

Furthermore, he said, the plaintiffs’ claims should be limited because the panel must have shorn off the structure and fallen vertically, which would have taken less time than the three to five seconds it would have taken for the panel to tilt away from the structure and fall horizontally as Steven Wosinski testified.

That means, McClean said, that Jared Kellner would not have been aware of the impending harm and could not have experienced fear for his life. If he were not aware, compensatory damages proposed for Jared Kellner’s pain and suffering are not appropriate.

McClean did not dispute the change in how the panels were connected to O’Donnell Park’s structure. Advance Cast Stone’s altered installation method was approved, but the paperwork was lost.

But, he said, if that connection were the problem, why did the panel hang for 19 years?

A confluence of events, he said, caused the panel to fall.

The sealant’s shelf life maxed out at 15 years under the most favorable conditions, he said, and could have expired at five years under the worst, and yet was never replaced. The building is settling, he said, water infiltration weakened concrete, and the panel probably was struck by a vehicle at least once.

“It couldn’t,” McClean said, “just walk off the wall and fall.”

That the paperwork was lost, he said, is more probable than Coates acting as a “lone wolf” to conceal the altered installation, which McClean said was suggested by the plaintiffs’ attorneys, and more probable than project oversight missing the allegedly glaring problems posed by that change.

“If you believe the lone wolf theory,” McClean said, “cream us.”

— Follow Beth on Twitter


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