Stack to Wendler: Take it and leave it in Tennessee

Steve Korris Jul. 25, 2007, 11:36am

Judge Stack

Madison County Circuit Judge Daniel Stack stands by his decision to send a Tennessee plaintiff with a Tennessee injury to a Tennessee court.

At a July 9 hearing Stack denied a motion to reconsider his transfer of a suit that truck driver Gary Clark filed against Georgia trailer maker Cottrell Inc.

Clark's attorney, Brian Wendler of Edwardsville, argued that new decisions of the Fifth District appellate court changed the law, but Stack held that the decisions did not apply to Clark.

Wendler also argued that other Madison County judges have allowed plaintiffs from other states with injuries in other states to sue in Madison County, but that did not sway Stack.

Clark sued Cottrell in 2004, claiming he suffered an injury while loading vehicles on a trailer.

He also sued Cassens & Sons of Edwardsville and other Cassens family businesses, as owners of the trailer.

Wendler specializes in representing Teamster union drivers in suits against Cottrell. He asserts Madison County jurisdiction by naming Cassens businesses as defendants.

Stack frowns on that. In two other Cottrell suits he has granted summary judgment to Cassens & Sons, dropping it from the suits.

When Wendler moved last year to reconsider the Clark transfer, Cassens & Sons moved for summary judgment. That motion and Wendler's motion both came before Stack at his hearing.

Stack asked Wendler, "Is there anything different in this case than there was in the other two cases with regard to Cassens and Sons?"

"Nothing I am aware of, your honor," Wendler said.

Stack asked if he needed to make an argument.

"Cassens and Sons was in the chain of distribution," Wendler said. He said they could get out on strict liability but not on negligence.

Stack said, "I am going to rule the same way as I did in the other two cases."

On Wendler's motion, Dan Ball of St. Louis argued for Cottrell that reconsideration requires new law or new evidence. He said those did not occur.

He said that in each Fifth District decision Wendler cited, the accident happened in one state and the plaintiff lived in another state.

"It is time that we recognize that at least under certain circumstances these foreign cases don't belong here," Ball said.

In response Wendler said, "The Fifth District, I think, is getting really tired of seeing these appeals for Cottrell litigation, for Cassens drivers, for trailers that are sold, licensed, distributed and registered here in the state of Illinois in Madison County."

He said Madison County judges entered 12 adverse rulings in these cases.

He told Stack, "The last time we were discussing this, I think you were surprised to know that you were the first one to grant one of these motions."

"Of the 12 prior adverse rulings against Cottrell, eight of them were coworkers in Tennessee of Mr. Clark," Wendler said. "Of those eight, three involved people, Tennessee residents injured in Tennessee.

"If the court keeps jurisdiction and venue here – Well, I can't say anything is certain in the law – There is very little question the Fifth District will affirm that ruling."

Ball said, "The appellate courts in Illinois have clearly shown that when everything has happened in another state, it is time to move it to another state."

Stack said that as he remembered the case, "almost everything was in Tennessee."

Wendler said that was why he presented the summary of the three coworkers.

Stack said, "No, Brian, I don't want to know about those cases. I want to know about this case."

He asked four questions: "Where did the accident happen? Where is plaintiff from? Where are the witnesses from? Where are the defendants from?"

Wendler answered two questions: "Mr. Clark lives in the Nashville area, Tennessee. The injury happened on the eastern edge of Tennessee, over by Knoxville."

Instead of answering the other two he resumed his argument for Madison County.

He said, "The trailer sold in Illinois. Trailer sales terms negotiated in Illinois. Trailer owned and registered in Illinois. Illinois license plates."

He said he did not think Tennessee law would apply.

Stack said, "I did."

Wendler said, "I don't know how it can be argued that Illinois law does not apply. The trailer is made in Georgia but they want to apply Tennessee law."

Ball said, "You don't go by where some transaction occurs like that, years ago, to determine the applicable law."

Stack denied Wendler's motion.

Wendler said, "Cottrell listed none of its own employees as witnesses for trial."

Ball said, "Are we rearguing again?"

Wendler said, "Are you interrupting again?" He asked Stack if Cottrell could name new witnesses.

Stack said that was up to the trial court in Tennessee.

Wendler associate Thomas Maag said, "Your honor could frankly enter an order that said that it is being dismissed for refiling in Tennessee, no further discovery, or something like that."

Stack asked if discovery was completed. Ball said it was not.

Ball said, "They are trying to now wiggle out of a ruling."

Stack told Maag to take it up where they file it.

Maag said, "You are denying our request to have the case basically go forward for trial in Tennessee or wherever with the discovery as it was disclosed?"

Stack said, "What I am denying is your motion to reconsider my order of whatever date I entered that order, period."

Maag said, "You are declining to consider the oral motion?"

Stack said yes.

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