Defendants have banner year in Madison County

Steve Gonzalez Dec. 13, 2006, 1:13pm

Jeff Hebrank

Richard Hunsaker

Even though Madison County made the American Tort Reform Association's "judicial hellhole" list for the fifth consecutive year, defendants in cases seeking at least $1 million in damages have fared very well here this year.

It also was a banner year for defendants in the eyes of the Fifth District Appellate Court, which often ruled in favor of defendants, reversing decisions made by judges on motions to dismiss and forum.

In addition to several major Madison County defense verdicts and favorable appellate rulings, former Circuit Judges Lola Maddox and Don Weber have had a profound effect on the disposal of several class action suits.

In the past year, Weber knocked out cases against First Bank over check cashing fees, H&R Block over electronic filing fees, Equicredit over courier fees, UPS over late delivery and National City Mortgage over fax fees.

Weber was defeated in the November general election by David Hylla.

Plaintiffs' attorneys so feared Weber that in one case a medical malpractice attorney dismissed his case that was on the brink of going to trial (although he later re-filed) because it was before Weber.

Maddox, who came out of retirement to fill the vacancy created by retired Judge George Moran's abrupt departure in February, dismissed class actions against Nationscredit in July and against Pekin Insurance on her last day in office Nov. 30.

Following is a review of 2006 court decisions:

Asbestos defense verdict

On March 2, a Madison County jury cleared Bondex International and Georgia Pacific of any wrongdoing in the county's first asbestos trial of the year.

Anita O'Connell, 84, of Burbank, Ill., claimed defendants were negligent for injuries she received from asbestos fibers that became airborne while she shook out her husband's work clothes before washing them.

O'Connell was diagnosed with mesothelioma in February 2004.

Her husband, George O'Connell, owned Bel-Aire plastering, in Burbank. She claimed she came in contact with asbestos by washing her husband's and children's clothes.

Chris Panatier and Charla Aldous of Baron & Budd in Texas represented Anita O'Connell who only appeared by video during the two-week trial. Aldous asked the jury of nine women and five men to award her $10 million, money O'Connell said she would gladly trade not to have a disease that will cause a painful death.

It took the jury under four hours to deliberate after a trial that lasted a little over two weeks.

Jeff Hebrank of the Hepler Broom law firm and Mark Phillips of Nelson Mullins Riley Scarborough in South Carolina represented the defendants.

Med mal defense verdict

On May 11, after a nine-day medical malpractice trial, a Madison County jury delivered a defense verdict, ruling that Troy physician Dolores Cantrell, M.D. met the standard of care in treating William Hoppe, II.

The jury deliberated nearly four hours after hearing three hours of closing arguments earlier in the day.

Pamela Hoppe, as special administrator of the estate of William Hoppe II, filed suit against Cantrell on Feb. 27, 2004, claiming she misdiagnosed her husband's unstable angina on July 18, 2003, which caused his death the next day.

Hoppe claimed that Cantrell failed to adequately and promptly treat the angina and failed to send her husband to a cardiologist for immediate help.

"This is not a fair playing field in the first place," plaintiff's attorney Morris Chapman told the jury during closing arguments, referring to Madison County.

He said that the "propaganda" being run by the insurance companies and the U.S. Chamber of Commerce would have one to believe that "all lawyers are crooks."

He told the jury that the "hellhole" label placed on Madison County was due to defense lawyers thinking they were not on the same playing field.

"I am worried about the 13th juror," Chapman said pointing to a reporter in the courtroom.

Chapman told the jury that any juror who lets the 13th juror influence them would have "violated their trust as a juror" and that anyone doing that "should be reported."

He added that all Cantrell had to do was "simply recognize the problem" and this trial would not be taking place in the first place.

Chapman criticized defense attorney Richard Hunsaker of Heyl Royster for being a "bean counter."

"Every detail has to come out with this guy," Chapman said, causing several jurors to chuckle.

Chapman also criticized Hunsaker's firm because of its size. Attorney Mary Jo Kuca also of Heyl Royster assisted Hunsaker in the case.

"I don't have 48 people or the money," he said. "All I want is a fair trial, I am not entitled to anything else."

"I have been after social justice my whole life," Chapman said. He told jurors about the people he helped all over the world including China and Trinidad.

Chapman also talked about the time when he went to Jackson, Miss. to represent a black man when it was an unpopular thing to do.

He went on to say that unions are being destroyed and that corporations refuse to give employees raises.

"They (corporations) don't care about you," Chapman said.

One juror who asked not to be named said, "We felt the doctor did everything she could with the information she had."

"This was a tough case, it was a very emotional case, my heart just really goes out to that entire family, they lost both parents and this is tragic, but the evidence showed the doctor did her job," the juror said.

Another juror remarked that attorney Chapman "talked about everything but his case."

"All he could do was try to disgrace the defense team for doing their job," the juror said.

Byron's FedEx decision upheld

In October, the Illinois Appellate Court affirmed Madison County Circuit Judge Nicholas Byron's decision to grant FedEx's motion for summary judgment in a class action suit.

Erin Moody filed a one-count breach-of-contract class action complaint against FedEx in 2002, alleging that FedEx breached its shipping contract by charging customers higher rates for express delivery and failing to deliver the packages by the agreed delivery time.

Byron agreed with FedEx and held that Moody's breach-of-contract claim was preempted by the Airline Deregulation Act because it was not based on the actual terms of Moody's contract.

Authoring the opinion for the court, Justice Steve McGlynn wrote, "Moody does not allege any damages to the package, nor did she seek a refund of her money-instead she seeks a partial refund of her shipping charges for the delayed shipment, claiming this to be her common law remedy for the alleged breach of contract."

Byron reversed in US Bank

On July 7, The Illinois Appellate Court unanimously reversed Madison County Circuit Court Judge Nicholas Byron's decision to deny US Bank's motion to dismiss a 2003 class action lawsuit. The decision, which effectively dissolved the case, asserted the plaintiffs "do not have standing."

Kenneth Kronemeyer of New Memphis and Darryl Johnson of Collinsville, represented by the Lakin Law Firm in Wood River and Freed and Weiss in Chicago, sought to establish a nationwide class of individuals who paid US Bank a fee when presenting for payment a check drawn on a US Bank account

They claimed that US Bank charged $10 to cash checks drawn by the bank's depositors and payable to them. They charged consumer fraud, wrongful dishonor and unjust enrichment.

On Jan. 24, 2005, US Bank filed a motion to dismiss arguing that the plaintiffs did not have standing to assert a cause of action for wrongful dishonor under section 4-402 of the Uniform Commercial Code.

Byron held a hearing May 13, 2005, and denied the motion.

On June 8, 2005, US Bank filed an unopposed motion to certify the preemption and jurisdiction issues for interlocutory appeal pursuant to Illinois Supreme Court Rule 308 and an order was entered granting the motion and certifying the issues.

Airborne Express upheld, UPS dismissed

On Aug. 10, the Fifth District ruled that former Circuit Judge Phillip Kardis made the right decision when he granted Airborne Express' motion for summary judgment.

Represented by Gary Peel and Gerald Walters of the Lakin Law Firm, Jeffrey Hicks of Financial Planning Advisors filed the lawsuit in 2002, claiming Airborne, now DHL, failed to deliver a package by noon the next business day.

Hicks shipped packages using Airborne's "Flight-Ready" prepaid shipping service.

Airborne guaranteed that Hicks' shipment would be delivered by noon the next day, however when it was delayed, the company provided Hicks with a free Flight-Ready envelope pursuant to the its guarantee.

Hicks also sued United Parcel Service for similar wrong-doing in Madison County, but that class action lawsuit was dismissed in June by Circuit Judge Don Weber.

$8.5 million judgment reversed

In October, the court reversed an $8.5 million Madison County class action judgment awarded to the Alton law firm of Smith, Mendenhall, Emons & Selby.

"Because the plaintiff has proven no damages, the plaintiff's Illinois and Minnesota statutory consumer fraud claims must fail, and the order of the circuit court of Madison County, which is not supported by the evidence, must be reversed," presiding Justice Stephen Spomer wrote in the majority opinion.

Spomer borrowed a famous sports analogy in his written opinion.

"The National Basketball Association has an unwritten rule that is applicable to this case: 'no harm, no foul,'" he wrote.

Weld rod defense verdict

On Nov. 15, a Madison County jury reached a defense verdict, ruling that Michael Haskell's Parkinson's disease was not caused by manganese-containing welding fumes.

Seeking $7.7 million dollars, Michael Haskell of Forsythe, Ill. filed suit against ESAB Group, the BOC Group and Lincoln Electric on Oct. 15, 2004, claiming his exposure to manganese-containing welding products caused him to suffer neurological injuries, including Parkinson's disease.

The trial began Oct. 12, with Circuit Judge Daniel Stack presiding.

Haskell, represented by Robert Bosslet of Granite City, claimed the defendants were negligent and liable for failing to warn him of manganese exposure and liable for not providing fume extraction systems in the workplace.

Bosslet argued that the defendants should have known of the inherent health hazards of the products they sold, distributed or used.

He also argued that manganese exposure for a period as short as 49 days can cause neurological damage.

John Beisner, an attorney for several current and former welding rod manufacturers said, "We are extremely pleased that the jury unanimously found that welding rod manufacturers are not responsible for the plaintiff's ailments."

"This is the second Madison County jury to return a defense verdict in the last 12 months," he said. "The plaintiffs are simply not able to persuade juries with their claims, as evidenced by the fact that juries have returned defense verdicts in 13 of 14 such trials held."

2005: Weld rod for defense

In December 2005, after deliberating two hours, a Madison County jury ruled in favor of the defense in a Cape Girardeau man's weld rod trial that lasted a month.

In that case welder Steve Boren alleged he suffered neurological injuries after being exposed to manganese-containing welding fumes. He was seeking close to $7 million in damages.

"The bottom line is the welding rod manufacturers have always acted responsibly on behalf of welders and these defendants are being unfairly targeted in these suits," Beisner said.

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Organizations in this Story

Madison County Circuit Court
157 N Main St
Edwardsville, IL 62025

Heyl Royster
124 SW Adams St
Peoria, IL 61602

133 Peachtree St NE
Atlanta, GA 30303

Nelson Mullins Riley & Scarborough
949 3rd Avenue
Huntington, WV 25701

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