On his last day, Kardis hammers Cassens, Cottrell

Steve Korris Sep. 29, 2005, 6:50am

Retired Judge Kardis

The day a man retires, he may feel entitled to doing as he pleases.

On his last day, Madison County Circuit Judge Phillip Kardis declared defendants in a civil case guilty without a trial.

Kardis could not enter judgment and award damages, of course, but in an Aug. 26 order he made it clear that he wished he could.

His order allows Ronald and Phyllis Yenerich, of Arkansas, to seek punitive damages against Cassens & Sons, of Edwardsville, and Cottrell Inc., of Georgia.

Cottrell makes trailers for hauling new automobiles. Cassens hauls new autos.

Ronald Yenerich, now retired, hauled autos for a Cassens facility in Normal. He claims that defects in Cottrell trailers caused injuries to his spine, neck and shoulders.

Company owners Allen Cassens and Mike Cottrell knew about thousands of injuries but did nothing to reduce risks, Kardis wrote in his order.

Cottrell has argued that Yenerich’s evidence would not be admissible at trial.

“This argument is not well taken,” Kardis wrote. “The industry reports and injury records plaintiffs presented are found to be highly relevant.”

On his last day, Kardis gave Yenerich ten days to amend the complaint by claiming punitive damages.

Two weeks later, attorney Brian Wendler filed an amended complaint. He presented 28 counts for compensatory damages and six for compensatory and punitive damages.

Wendler also served notices that he would depose the chief financial officers of Cassens and Cottrell. Both defendants moved to quash.

Prosecutor Kardis

“Plaintiffs proved Allen Cassens himself absolutely knew of the defects and injuries at least as early as 1978,” Kardis wrote.

He went on:

“Allen Cassens was specifically told about and discussed the high injury rate with the ratchet tie down system and rear loading skids.

“In 1999, Allen Cassens was supplied with copies of multiple industry reports…Six years later in 2005 he still had not looked at these items…”

Kardis wrote that Cottrell admitted that his patents reported safety concerns, adding that Cottrell knew in 1979 that his father served on a committee that reviewed injury records.

“Despite knowing of ratchet injuries Cottrell did not increase the spindle size to reduce force levels," wrote Kardis.

"He has never told his customers about the contents of the patents or injuries they were aware of.”

“He knew skids bind because road debris jams them, possibly as early as the 1980s.”

Kardis went on to state, that according to the National Automobile Transportation Association, the industry has the highest employee injury rate of any industry.

In 1984, Kardis wrote, General Motors urged Cottrell to reduce trailer load density.

“Yet Cottrell admitted it has consistently maximized trailer payload in order to gain a competitive advantage in the marketplace,” wrote Kardis.

Cottrell representative Elwood Feldman admitted knowing in 1989 that skids with ball bearings might seize up, he wrote.

“He admitted his company did not supply full hydraulic skids for trailers because such would increase the manufacturing costs…,” wrote Kardis.

At a hearing, plaintiffs’ expert Linda Weseman “testified to the high injury rate associated with the use of the products in question as well as the defendants’ disregard of same in defendants’ quest to place profits above safety,” wrote Kardis.

Weseman “testified that there have been thousands of substantially similar ratchet injuries reported and upper hundreds possibly thousands of substantially similar rear loading skid injuries reported over the years through her review of the more than 20,000 injury reports obtained by plaintiffs’ counsel which include Cassens injury reports,” wrote Kardis.

What next?

Chief Judge Edward Ferguson assigned the case to Circuit Judge Nicholas Byron, who set a hearing on all motions Oct. 14.

Byron set a hearing the same day in an almost identical case that Wendler filed for Ted and Kimberly White.

In the White case, Kardis granted summary judgment June 1 to Allen Cassens, ruling that he was not personally liable.

Wendler and the defendants announced June 9 that they had settled the White case, but they never returned to Kardis with an agreement.

The Whites moved in August to vacate the order granting Allen Cassens summary judgment. Allen Cassens argued against the motion in a Sept. 21 response.

At least nine plaintiffs have sued Cassens and Cottrell in Madison County since 1998.

Last year, in Circuit Judge Andy Matoesian’s court, a jury decided against Cassens and Cottrell, awarding plaintiff Carl Brdar $1,486,584.

The jury awarded nothing to his wife Vicky Brdar. The Brdars moved for a new trial.

Matoesian set a hearing Feb. 1, but continued it at the request of the Brdars. No further entries appear on the docket.

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