Out with the dead: Lakin plaintiffs dropping in certified cases

Steve Korris Sep. 21, 2006, 2:48pm

Ketrina Bakewell

Lakin Law Firm attorneys have replaced a dead plaintiff in a six-year-old class action and a plaintiff who dropped out of a seven-year-old class action, but if defendants have their facts straight the new plaintiffs won't last long.

In the case of the dead plaintiff, American Family Mutual Insurance claims a new class representative doesn't belong to the class and even if she did, her claim arose in Ohio.

In the case of the dropout, Ford Motor Company claims that statutes of limitations ran out years ago on claims of new Lakin plaintiffs.

The Lakin firm can ill afford to lose the cases, for both have cleared the high hurdle of class certification.

With proposed class actions collapsing all over the courthouse, the few that carry a judicial class action stamp represent the firm's best chances for success.

In the American Family Mutual case, however, the Lakin firm did not enhance its chances by carrying on for more than two years with a dead plaintiff.

American Family Mutual continues protesting over the delay between the death of Hernandez in 2004 and discovery of his death this year.

The Lakin firm did not tell Stack that Hernandez died. American Family Mutual told Stack, in March.

American Family Mutual attorney Anthony Martin of St. Louis wrote in a Sept. 18 memorandum, "There are two unacceptable explanations for this incredibly long delay. One, class counsel knew of Manuel Hernandez's death for over two years and failed to notify the Court, or two, class counsel failed to have any contact with the sole class representative for over two years…"

He wrote, "Under either scenario, class counsel's late attempt to amend the complaint is inexcusable."

The Lakin firm filed the suit in 2000 for Hernandez and other accident victims, claiming American Family Mutual improperly reduced payments on medical bills.

In 2002 Stack certified Hernandez to represent a class of plaintiffs in 17 states.

American Family Mutual moved for reconsideration or clarification.

At a hearing, Stack expressed concerns about applying laws of 17 states. He took it under advisement.

Hernandez died Jan. 25, 2004.

Eighteen days later, Stack signed an order directing attorneys to reopen the argument over which laws to apply.

Last year Stack trimmed the class to 11 states so he could apply Illinois law only.

American Family Mutual learned in March that Hernandez died. The insurer reported the death to Stack.

In May the Lakin firm moved to substitute Helen Nemeth as class representative and asked for leave to file a fifth amended complaint.

Stack did not allow a new complaint but he allowed a proposal for one.

The Lakin firm submitted a proposal Aug. 16, with Nemeth as class representative and Nora Hernandez as second plaintiff.

For American Family Mutual, Martin moved Sept. 18 to reject Nemeth and Hernandez as plaintiffs and refuse the proposed complaint.

He wrote, "Nemeth resides in Ohio, resided in Ohio when she was involved in an automobile accident, and filed claims in Ohio for medical payments wholly unrelated to Manuel Hernandez's accident and claim."

He wrote that she did not belong to the class because a separate entity, American Family Insurance, covered her.

He wrote that Nora Hernandez was involved in the same accident as Manuel Hernandez but sustained different injuries and received different medical care.

He wrote that American Family Mutual handled their claims differently.

He wrote that adding her to the complaint without a substitution motion was improper. He wrote that the time for such a motion had expired.

He wrote that the complaint asserted claims that Stack did not certify and as a result Stack would have to apply laws of all 11 states.

He asked for a hearing on the qualifications of Nemeth and Hernandez to represent the class.

In a memorandum the same day he wrote, "They cannot simply pluck someone from another state and urge a substitution that ignores the requirements of the substitution statute."

Stack set a hearing Oct. 4.

In the Ford case attorney Ketrina Bakewell, of Bryan Cave in St. Louis, invoked statutes of limitation after the Lakin firm dredged up complaints back to 1995.

Bakewell on Sept. 15 asked Circuit Judge Andy Matoesian to dismiss the Lakin firm's third amended complaint over flaky paint on Ford vehicles.

Lakin Law Firm secretary Elaine Phillips filed the suit in 1999. The Lakin firm later added Daniel Schopp of Madison County as plaintiff.

In 2003 Circuit Judge Philip Kardis certified the suit as a class action.

In 2005 the Lakin firm added Beverly Brede of St. Clair County and Joseph Gulash of Madison County as plaintiffs, and it changed the definition of the class.

Kardis set trial for this October, but he retired and Matoesian inherited the case.

Flaky case

This year Ford moved to decertify the class in light of Avery v. State Farm, an Illinois Supreme Court decision that overturned a Williamson County class action verdict.

In May Phillips withdrew as class representative for personal reasons, according to the Lakin firm.

In August the Lakin firm filed a third amended complaint proposing to certify Schopp as class representative.

Brede and Gulash remained in the case, and the Lakin firm added Norma Maag of St. Clair County and Peter Yaciuk of St. Louis County, Missouri, as plaintiffs.

The complaint claimed Ford failed to disclose to buyers of models from 1989 to 1996 a substantial risk of delamination, a paint defect that caused flaking.

Plaintiffs claimed common law fraud and statutory consumer fraud. They asked for damages equal to the cost of repairs plus legal fees and costs.

Bakewell, in a memorandum with her Sept. 15 motion to dismiss, wrote that plaintiffs all knew paint was coming off their vehicles years before they filed suit.

She wrote that Gulash noticed it in 1994 or 1995, Schopp and Maag noticed it in 1995, and Brede noticed it in 1997 or 1998.

She wrote that the statute of limitations ran out on common law frauds at five years and on consumer fraud at three years.

She also attacked the complaint as "slight of hand" for treating risk as a defect.

She wrote that plaintiffs tried to create new causes of action one step removed from failure to disclose a defect.

She wrote, "That is, their actions are premised upon an alleged failure to disclose a collective increased risk of problems as opposed to a failure to disclose an actual defect."

She asked if a normal risk became substantial at five percent, ten percent or 20 percent.

She wrote that if Matoesian did not dismiss the complaint he should require plaintiffs to plead what Ford failed to disclose, how it should have disclosed it, and what specific vehicles were involved.

She wrote that plaintiffs did not buy their vehicles from Ford, and that if a seller knew about a risk of delamination the burden was on the seller to disclose it.

She wrote that Yaciuk failed to state a claim under Missouri law because he did not allege a sales transaction between him and Ford.

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Organizations in this Story

Bryan Cave
1 Metropolitan Square
St. Louis, MO 63102

Ford Motor Company
1 American Rd
Dearborn, MI 48126

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