Judge upholds verdict in sewer case

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A jury’s verdict will stand granting 200 Milwaukee residents $1.49 million for sewage backups despite errors in the process, Circuit Judge Christopher Foley ruled Friday.

Foley conceded there was a problem with the jury’s verdict because one juror answered a few questions differently than his 13 peers. But that did not invalidate the jury’s findings, Foley said.

A Milwaukee County jury in September found the city of Milwaukee 36.77 percent responsible for damaging homes in the city’s Lincoln Creek and Lincoln Park neighborhoods by failing to inspect and maintain the sewage system. The residents sued following a June 2008 storm and flooding during which, according to court filings, they “saw their basements fill up with as much as three feet of raw sewage, human excrement and every other type of waste flushed down a toilet or drain.”

Despite the jury’s error, Foley said, the jury divided the blame correctly. His ruling Friday, which will be issued in writing soon, upheld the September verdict, which also found the Milwaukee Metropolitan Sewerage District, Veolia Water Milwaukee LLC and its Delaware-based parent firm at fault for the sewage backups.

MMSD and Veolia Water settled with the residents for $1.5 million prior to trial. Yet John Shaw, an expert hired by the residents, testified about both entities’ negligence when he was questioned by city attorney Jan Smokowicz during the trial.

Barry White, an attorney with Weiss Berzowski Brady LLP who is representing the residents, said during Friday’s hearing that the city should not have been allowed to help prove its case through testimony from an expert hired by the plaintiffs, and therefore the questions involving those other than the city should have been removed.

“If Veolia and MMSD aren’t on the verdict, the … issue is resolved,” White said during the hearing.

But Smokowicz and Foley disagreed. The judge said the city had a “full right to cross-examination” of Shaw during the trial.

Foley also said Friday it was clear that attorneys for the residents would not be asking for a new trial if they were completely satisfied with the jury’s findings.

“Even a judge who spent 23 years of his 28 years in children’s court can figure out that they wanted 100 percent [of the blame] on the city,” Foley said.

After the hearing, attorneys for both sides said they had not yet decided whether to appeal the case or Foley’s most recent decision.

The judge said he would answer in his written filings next week the question of how much the city will be liable for because the jury did not find it 100 percent to blame. In one of its motions, the city also is asking the judge to force it to pay only 37 percent of the verdict, or about $548,000, because that is the amount of negligence the jury put on the city. Foley said his written fillings will resolve that concern, as well.

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