Suit belongs in Ohio, Cottrell attorney argues

Steve Korris Sep. 21, 2006, 2:49am

Dan Carpenter

Thomas Maag

Car hauler Keith Yount, whose personal injury lawsuit turned the Madison County courthouse upside down, lives in Ohio and should file his suit there, according to the company that made the trailer he drove.

Cottrell Inc., of Georgia, on Sept. 18 asked Circuit Judge Daniel Stack to dismiss a suit that Yount and his wife Cindy Yount filed in January.

Attorney Daniel Carpenter of Bryan Cave in St. Louis wrote, "This case should be heard in Ohio, where plaintiffs reside, where the employment was centered, where the medical treatment occurred, and where the witnesses will likely reside."

Yount worked in Sheffield, Ohio, for Cassens Transport, a car hauling company based in Edwardsville.

Carpenter wrote that Cassens Transport had no records in Edwardsville that it did not also have at its Ohio terminal.

He wrote that, "…there is nothing to suggest that anyone from Madison County will have any significant testimony related to this case or will even appear at trial."

He urged Stack to disregard a long list of Illinois defendants, writing that Yount served his complaint on only two of them and Stack threw out a claim against one.

Stack at an Aug. 29 hearing granted summary judgment to Edwardsville auto dealer Cassens & Sons, ruling that Yount did not connect the dealer to his injury.

At the hearing Stack scolded attorney Brian Wendler of Collinsville for naming Cassens entities as defendants in personal injury suits of car haulers.

In Wendler's absence his associate, Thomas Maag, absorbed Stack's lecture.

Maag started the case off on the wrong foot eight months ago.

He filed the complaint at the courthouse, though it did not carry his signature. Charles Armbruster of the Lakin Law Firm had signed it.

The suit named Cassens family member Lisa Shashek as first defendant, along with two Cassens businesses. It did not name Cottrell.

Maag also filed an emergency motion that Armbruster had signed, to speed up discovery so the statute of limitations would not run out.

On the day Maag filed the suit Chief Judge Edward Ferguson assigned it to Circuit Judge Don Weber.

Before the day ended Associate Judge Barbara Crowder signed the emergency motion.

Crowder has not explained why she signed it. She lacked any authority to sign it, and it never took effect.

Weber never had a chance to explore the mystery because Yount removed him from the case with a motion for substitution.

In Illinois any party can substitute a judge once without cause, if the judge has not made a substantial ruling.

When the case bounced to Stack he vacated Crowder's order. He ruled that there was nothing nefarious about it.

Stack had just vacated an order of retired Circuit Judge Philip Kardis, authorizing a claim of punitive damages in another Wendler suit against Cassens and Cottrell.

In that case too, Stack ruled there was nothing nefarious about the order.

Maag, Wendler and Armbruster amended Yount's complaint, adding Cottrell and many Cassens businesses and family members as defendants.

Cottrell kept quiet until Stack granted summary judgment to Cassens & Sons. Then Carpenter delivered Cottrell's argument for an Ohio trial.

He wrote that Cassens Transport maintained and repaired Yount's rig in Ohio.

"The only factor that could weigh in favor of an Illinois forum is that relatively minor defendants have their place of business in Illinois, and this Court has been dismissing them, commenting on the impropriety of suing the Cassens entities," Carpenter wrote.

He wrote that the suit arose from an alleged accident in Fenton, Mo. He wrote that Stack would have to apply Ohio or Missouri law.

Illinois jurors and courts should not have to learn laws of other states, he wrote.

Carpenter cast suspicion on a long list of plaintiff witnesses, writing that the witnesses could not all have relevant information concerning the case.

"This list is essentially the same litany of names listed in each of the other Cottrell cases and, as usual, little indication is given as to what these people will testify about if called as witnesses," he wrote.

He wrote that in a trial with an almost identical list only seven witnesses testified. He wrote that two came from Missouri, three from Georgia and one from Florida.

He wrote that the only Illinois witness came from Effingham.

Carpenter called the witness list "a transparent sham compiled only for the purpose of avoiding transfer of this and other Cottrell cases to a more appropriate venue."

"The taxpayers of Ohio have a vested interest in hearing and deciding cases involving Ohio citizens, employers, and witnesses," he wrote.

"A suit that is minutes rather than hours from their home would clearly be more convenient for plaintiffs."

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Bryan Cave
1 Metropolitan Square
St. Louis, MO 63102

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