2009 Significant Defense Victories

Listen to this article

The following are defense victories reported to Wisconsin Law Journal's Verdict & Settlement Reporter in 2009. For all the cases below, the defendants left the courthouse owing plaintiffs zero dollars. They have likewise been edited for space.

FRAUD

Trucker exonerated in high-stakes kickbacks case

Case: S.C. Johnson & Son Inc. v. Morris, et al.

Court/case no.: Racine County, 04-CV-1873

Judge: Wayne J. Marik

Verdict or settlement/amount: Defense verdict, zero dollars

Disposition date: June 17, 2009

Plaintiff’s attorneys: Jeffrey L. Willian, Donna M. Welch, Kirkland & Ellis LLP, Chicago; Mark A. Cameli, Reinhart Boerner Van Deuren SC, Milwaukee

Defense attorneys: For Bay Darnell: Timothy S. Knurr, Schoone, Leuck, Kelley, Pitts & Knurr SC, Racine, Leonard J. Lewensohn, Lewensohn Law Office, Milwaukee; for David Eggleston and All Modes Inc.: Kenneth B. Ross, Sean B. Crotty, Coleman Law Firm, Chicago

Defense counsel’s fact summary: Plaintiff S.C. Johnson learned there was inappropriate conduct within its transportation department with regard to rates, kickbacks, etc. The investigation culminated with the firing of the head of its transportation department, defendant Morris, and a civil suit against him and others. Plaintiff later added All Modes Logistics, David Eggleston and Wilbur “Bay” Darnell.

Plaintiff asserted fraudulent misrepresentation, conspiracy to commit fraud, violation of WOCCA, common plan and scheme to commit fraud, violations of Sec. §134.05, etc.

At the same time the civil action was proceeding, the U.S. Attorney’s office began investigating Morris and others. They were indicted and charged. All but one have admitted wrongdoing and have entered into plea agreements.

Counsel for Darnell, Eggleston and All Modes moved to bifurcate the case. The trial was severed. The first trial resulted in a jury verdict of approximately $140 million. In the second trial, the jury completely exonerated Darnell, Eggleston and All Modes.

MEDICAL NEGLIGENCE

Hospital, insurer not responsible for brain injury

Injuries: Anoxic brain injury; wheelchair confinement

Case: Nelson v. Dr. W.

Court/case no.: Milwaukee County, 04-CV-001361

Judge: Charles F. Kahn

Verdict or settlement/amount: Defense verdict for the hospital and insurer (zero dollars); jury returned a $2,109,717 plaintiffs’ verdict against Dr. W. and Wisconsin Injured Patients and Families Compensation Fund.

Original amount sought: $2 Million in claimants’ request for mediation; plaintiffs filed a statutory offer of settlement for the hospital and insurance company for $1.64 million.

Original offer: None

Breakdown of damages awarded: $994,717 for health care expenses; $1 million for past and future pain and suffering; $50,000 was awarded to Jeanne Nelson for loss of society and companionship; $65,000 for loss of society and companionship to Miles Nelson

Date of incident: Oct. 18, 2000

Disposition date: April 23, 2009

Plaintiff’s attorney: J. Michael End, End, Hierseman & Crain LLC, Milwaukee; for Jeanne Nelson: James Peter End, First Albrecht & Blondis SC, Milwaukee

Defense attorneys: For the hospital and insurer: Barrett J. Corneille, Colleen L. Meloy, Corneille Law Group LLC, Madison

Plaintiff’s experts: Robert Eilers MD, Richard Bonfiglio MD, physical medicine and rehabilitation

Defense expert: Ruth Kleinpell RN

Defense counsel’s fact summary: Plaintiff contended hospital employees and a resident physician delayed in responding to plaintiff’s respiratory problems due to a mucous plug in his tracheostomy tube. Plaintiff alleged that when he had difficulty breathing, the inner portion of his tracheostomy tube should have been removed or that the tracheostomy tube should have been replaced. Plaintiff also claimed that a code should have been called earlier. Plaintiff’s counsel argued the jury should find both the hospital and doctor negligent and apportion liability 70 percent and 30 percent, respectively. Plaintiff’s counsel requested an award of $1 million in past medical expenses and additional “millions” in pain and suffering.

The jury found no negligence on the part of the hospital staff.

Neurosurgeon didn’t cause patient’s paraplegia

Case: Nett v. Dr. W.

Court/case no.: Winnebago County, 05-CV-642

Judge: Thomas Gritton

Verdict or settlement/amount: Defense verdict, zero dollars

Disposition date: June 24, 2008

Plaintiff’s attorney: Shawn R. Crain, End Hiersman & Crain LLC, Milwaukee

Defense attorneys: For Dr. W. and the Doctors Company/OHIC Insurance: Barrett J. Corneille, Mark T. Budzinski, Corneille Law Group LLC, Madison; for the Wisconsin Injured Patients and Families Compensation Fund: Jeremy T. Gill, Nash, Spindler, Grimstad & McCracken LLP, Manitowoc

Plaintiff’s experts: George Fueredi MD, radiology/standard of care; Jerome Lerner MD, physiatrist; Marshall Matz MD, neurosurgery/standard of care; Glen Rooyakkers DC, chiropractic

Defense experts: James Ausman MD, Joseph Cusick MD, neurosurgery

Defense counsel’s fact summary: Defendant neurosurgeon was alleged negligent in failing to identify a spinal epidural abscess, leading to plaintiff being rendered a paraplegic and wheelchair-bound.

The defense was that this was a difficult diagnosis and that even though the neurosurgeon had identified the abnormality on the films, a reasonable neurosurgeon would not have made an earlier diagnosis of the cause of the abnormality.

Timing of preemie’s delivery at issue

Injuries: Hypoxic ischemic encephalopathy leading to cerebral palsy causing permanent cognitive and neurologic damage

Case: Shepherd v. Dr. D. and hospital

Court/case no.: Dane County, 04-CV-3971

Judge: James Martin

Verdict or settlement/amount: Defense verdict, zero dollars

Disposition date: Nov. 7, 2008

Plaintiff’s attorney: Euel W. Kinsey, McKeen & Associates, Detroit

Defense attorneys: For Dr. D. and Physicians Insurance Company: Barrett J. Corneille, Colleen L. Meloy, Corneille Law Group LLC, Madison; for the hospital and The Doctors Company/OHIC: Emile H. Banks, Vicki L. Arrowwood, Emile Banks & Associates LLC, Milwaukee; for the Wisconsin Injured Patients and Families Compensation Fund: David McFarlane, Bell, Gierhart & Moore SC, Madison

Plaintiff’s experts: Russel Jelsema MD, Fredrick Gonzalez MD, obstetrics/perinatology; Robert Lerer MD, developmental pediatrics/child neurology; William Zinser MD, pediatric neurology; Robert Naidich MD, pediatric neuroradiology; Ocean Berg RN; Patricia Dodson Brown RN, life care planner; Robert Niendorf, economist

Defense experts: Katharine Wenstrom MD, obstetrics/perinatologist/genetics; Frank Manning MD, obstetrics/perinatology; Jay Goldsmith MD, neonatology; Richard Towbin MD, pediatric radiology; Sinisa Dovat MD, pediatric hematology; Gordon Sze MD, neuroradiology; Theonia Boyd MD, placental pathologist; Richard Colan MD, pediatric neurology; Susan Farrell MD, neurodevelopmental pediatrics; Mark Lewis MD, neuro-psychology; David Jones, economist

Defense counsel’s fact summary: Plaintiff’s mother was appropriately monitored up until the date of delivery in a “high risk&rd
quo; pregnancy. Immediately prior to the delivery, the patient’s condition drastically changed. Plaintiff contended this change required a more expeditious delivery than what occurred.

The defense responded that the timing of delivery met the standard of care, and that the defendant physician was entitled to assess the basis for the change in status and balance the risks of delivery of a premature infant versus the risk of further assessment of the situation. The defense also contended that the permanent neurologic injuries resulted from a combination of rare genetic factors that resulted in injury to the fetus days to weeks before the delivery.

Hernia repair was properly performed

Injuries: Chronic, continuing groin pain

Case: Gray v. Dr. C.

Court/case no.: Rock County, 06-CV-305

Judge: Daniel T. Dillon

Verdict or Settlement/amount: Defense verdict, zero dollars

Plaintiff’s attorney: Marc T. McCrory, Carney, Davies & Thorpe LLC, Janesville

Defense attorneys: For Dr. C. and Physicians Insurance Company of Wisconsin: Barrett J. Corneille, Carley Pelch-Kiesling, Corneille Law Group LLC, Madison

Plaintiff’s experts: Mark Marzolf DO

Defense experts: David DeAngeles MD, cardiovascular surgery; Robert Baker MD, surgery

Defense counsel’s fact summary: Plaintiff contended that defendant surgeon improperly performed a hernia repair. Defendants relied upon testimony from the surgeon regarding his extensive experience with, and performance of, this type of surgery, and testimony from two surgeons who testified that defendant met the standard of care, and it was unlikely that plaintiff’s symptoms were caused by any act or omission by him. The defense also presented testimony from the surgical assistant who assisted the operation, who testified to the surgeon’s experience with the surgery, as well as her belief that the surgery was properly performed.

Physicians not liable for cardiac arrest

Case: Weborg v. Jenny, et al.

Court/case no.: Door County, 07-CV-59

Judge: Todd Ehlers

Verdict or settlement/amount: Defense verdict, zero dollars

Highest offer: The parties stipulated to $1 million in damages.

Disposition date: Oct. 16, 2009

Plaintiff’s attorney: J. Michael End, End, Hierseman & Crain LLC, Milwaukee

Defense attorneys: For Dr. Rebhan: Mark T. Budzinski, Corneille Law Group LLC, Green Bay; for Dr. Borgnes: William F. Bauer, Coyne, Schultz, Becker & Bauer SC, Madison; for Dr. Jenny: David J. Colwin, Sager, Colwin, Samuelsen & Associates SC, Fond du Lac

Insurer: Physicians Insurance Company of Wisconsin

Plaintiff’s experts: Richard Lewan MD, family practice; Gary Dillehay MD, radiology; Jeffrey Breall MD, Karyl VanBenthuysen MD, cardiologists.

Defense experts: Alan David MD, Keith Ness MD, family practice; Marc Kaye MD, radiology; Matthew Wolff MD, cardiology

Defense counsel’s fact summary: Plaintiff complained of chest pain to his family physician, Dr. Rebhan, who performed a resting EKG and then referred him for an exercise stress test. After reviewing its results, Rebhan sent plaintiff for a cardiology consult with Dr. Jenny. Jenny’s impression was that plaintiff’s complaints were likely caused by musculoskeletal chest wall pain.

At plaintiff’s next physical, Rebhan referred him to physical therapy. Rebhan next prescribed a 10-day trial of Nexium. Before the next office visit, plaintiff died of a sudden cardiac arrest at age 42, leaving a widow and three sons.

Plaintiffs alleged Jenny should have sent him to the cath lab based on the prior testing, and that Rebhan failed to send him back to a cardiologist after continued complaints of chest pain.

MOTOR VEHICLES

Jury absolves driver from fault

Injuries: Neck, right shoulder, lower back and right knee injuries

Case: Matelski, et al. v. ACUITY, a Mutual Insurance Company, et al.

Court/case no.: Milwaukee County, 06 CV 8499

Judge: Timothy G. Dugan

Verdict or Settlement/amount: Defense verdict, zero dollars

Original amount sought: $2 Million

Original offer: $150,000

Date of incident: Sept. 16, 2003

Disposition date: Jan. 22, 2009

Plaintiff’s attorney: Molly C. Lavin, Habush Habush & Rottier SC, Waukesha

Defense attorney: Michelle D. Johnson, Arthur P. Simpson, Simpson & Deardorff SC, Milwaukee

Plaintiff’s experts: David Coran MD; Dennis Sullivan MD

Defense expert: David Haskell MD

Defense counsel’s fact summary: Three vehicles were heading eastbound, stopped at a red light. After the light changed, defendant Lemberger accelerated. Intending to make a U-turn at an upcoming median, she claimed she activated her left-turn signal. As she began to turn, she was hit from behind. Plaintiff’s vehicle did not rear-end Lemberger’s. Plaintiff claimed she was then hit from the rear by another vehicle driven by defendant Schreiber, which pushed her vehicle into Lemberger’s.

Plaintiff filed suit against both of them, and settled with Schreiber and his insurer prior to trial. Plaintiff proceeded to trial against Lemberger and her insurer based on the claim that Lemberger did not use her turn signal and short-stopped the vehicles behind her.

BREACH OF CONTRACT

Masonry contractor offers to repair cracked concrete

Injuries: $1 million in cost of repair, lost profits

Case: Accord Manufacturing v. Design 2 Construct and Graff Masonry

Court/case no.: Washington County, 04 CV 10

Judge: Andrew Gonring

Verdict or settlement/amount: Defense verdict after 7-day trial, zero dollars

Original amount sought: $1 million

Original offer: $275,000

Special damages: $1 million dollars in cost of removing equipment, downtime and replacement of factory floor

Date of incident: 1999-2000

Disposition date: Jan 14, 2009

Plaintiff’s attorney: Michael T. Hopkins, IP Special Counsel Ltd., Milwaukee

Defense attorney: Wayne W. Seisennop, Seisennop & Sullivan, Milwaukee; Gregory J. Cook, Greg Cook Law Offices SC, Milwaukee

Insurers: Acuity, CNA

Plaintiff’s expert: Louie Baddredine

Defense experts: Thomas Whittow; Terrence Patrick

Defense counsel’s fact summary: Accord contracted to build a new manufacturing facility in Jackson, Wis. with D2 Consruct as the general contractor. Graff was the masonry subcontractor.

Concrete was poured in bad weather and crushed concrete was substituted for the base with the permission of the general contractor. While all concrete cracks, an inordinate number of cracks occurred here, some due to lack of sealing that plaintiff had agreed to do. The owner complained of the cosmetic issue and wanted a new floor. Defendants offered to repair or cut out bad sections. Accord refused.

In closing, attorney Siesennop said (with a straight face), “This case is not really what it is cracked up to be.” There were a few sly smiles from the jury.

Pre-trial motions: Insurance coverage denied for Graff. This was appealed and affirmed so Graff proceeded with no indemnity.

PRODUCT LIABILITY

Fire’s cause puzzles experts

Injuries: Property damage

Case: Society Insurance, et al. v. LG Electronics USA Inc., et al.

Court/case no.: U.S. District Court, Eastern District of Wisconsin, 2006-CV-01075-WEC

Judge: Magistrate Judge William E. Callahan Jr.

Verdict or settlement: Defense verdict after five-day jury trial, zero dollars

Original amount sought: $700,000

Date of incident: Sept. 8, 2003

Disposition date: June 26, 2009

Plaintiff’s attorney: Wendy G. Gunderson, Smith Gunderson & Rowen SC, Brookfield

Defense attorneys: Paul D. Cranley, Travis West, Whyte Hirschboeck Dudek SC, Madison

Plaintiffs’ experts: Chris Korinek; Rich Relien

Defense experts: Samuel Sudler; Lawerence “Bud” Eastman

Defense counsel’s fact summary: Plantiff alleged a microwave oven manufactured and sold by the defendants started a fire, causing extensive damage to plantiff’s business. Although plaintiffs had no direct evidence of a specific defect, they argued at trial that a defect could be inferred because non-defective microwave ovens should not start fires.

Defendants argued that other possible causes could not be eliminated. Rather than relying on subjective interpretations of the burn patterns, the defense presented the testimony of an electrical engineer who analyzed the remains of the microwave oven and found no evidence of electrical causation. The jury was apparently convinced by this testimony, and found that the fire did not start inside the microwave.

2009 Significant Defense Victories Summary

Plaintiffs in the high-stakes controversies below left the courthouse empty-handed.

Several of Wilbur “Bay” Darnell’s co-defendants in a civil fraud/kickbacks case had entered into plea agreements and were facing significant jail time in separate criminal proceedings (of which Darnell was not a part). But Darnell’s attorney, Timothy S. Knurr of Schoone, Leuck, Kelley, Pitts and Knurr SC in Racine, believed strongly that his client had engaged in no wrongdoing. He convinced a Racine County Circuit Court to sever the case. The strategy succeeded when a jury found Darnell not liable in S.C. Johnson & Son Inc. v. Morris, et al. In the bifurcated civil case, the other defendants were slapped with a $140-million verdict.

As usual, the Corneille Law Group LLC, headquartered in Madison, was well represented in the “Verdict & Settlement Reporter” with its successful defense of health care providers in several medical malpractice cases. The firm’s named partner, Barrett J. Corneille, reported four defense verdicts where his clients were facing potentially devastating outcomes, in Nelson v. Dr. W., Nett v. Dr. W., Shepherd v. Dr. D. and hospital, and Gray v. Dr. C. The firm often takes a team approach, with Colleen L. Meloy, Carley Pelch-Kiesling and Mark T. Budzinski serving as co-counsel from time to time.

Speaking of Budzinski, he also reported a major defense verdict in Weborg v. Jenny, et al., a medical malpractice wrongful-death case.

In Matelski, et al. v. ACUITY, a Mutual Insurance Company, et al., a defendant driver was forced to go it alone at trial when her co-defendant from a three-car collision settled. The plaintiff had made a demand of $2 million, so the stakes were huge. But defense attorneys Michelle D. Johnson and Arthur P. Simpson, of Simpson & Deardorff SC in Milwaukee, confidently proceeded to trial, and obtained a defense verdict.

When attorney Wayne W. Seisennop, of Seisennop & Sullivan, Milwaukee told a jury during closing argument, “This case is not really what it is cracked up to be,” the few sly smiles he saw suggested to him and co-counsel Gregory J. Cook, of Greg Cook Law Office in Milwaukee, that there would be a defense verdict coming in Accord Manufacturing v. Design 2 Construct and Graff Masonry. His suspicions proved correct, as jurors rejected the plaintiffs’ demands for $1 million in this breach-of-contract dispute regarding concrete flooring installed by a masonry contractor.

It was a battle of the fire origin experts in Society Insurance, et al. v. LG Electronics USA Inc., et al., a case involving major property damage allegedly valued at $700,000.

Central to the controversy was a microwave oven manufactured and sold by the defendants that purportedly started the fire. But the defense testimony of an electrical engineer, who analyzed the remains of the oven and found no evidence of electrical causation, swayed the federal court jury to conclude that the fire did not start inside the microwave. Defense counsel was Paul D. Cranley and Travis West of Whyte Hirschboeck Dudek SC, Madison.