Heather Isringhausen Gvillo Nov. 11, 2013, 7:16am

Parties to a trucker’s eight-year-old Madison County case that ended in a mistrial in July are arguing over whether the plaintiff is entitled to costs.

Alton attorney Charles Armbruster and co-counsel Brian Wendler of Edwardsville filed the case on behalf of Mark Graham in 2005. Graham worked for Cassens Transport, a car hauling division of Cassens Corp.

Graham had claimed that on Oct. 18, 2004, he suffered a low back injury when his rig’s seat and mounting brackets failed causing him to suffer severe injuries, including a ruptured lumbar disc at L4-L5.

Dr. Robert Margolis, a physician who treated Graham, said the Bostrom seat in Graham’s 1997 International truck most likely led to a herniated disc.

On July 17, Crowder declared a mistrial over violation of several motions in limine.

Following the mistrial ruling, Graham filed a motion for reimbursement of “wasted” trial costs and expenses. arguing that he “should not be required to bear the costs associated with the violations of the court’s order by Bostrom’s counsel.”

Bostrom Seating filed a response to the plaintiff’s motion for reimbursement on Sept. 24 claiming the plaintiff’s motion is “completely devoid of any merit and should be summarily denied.”

Graham claims he sought reimbursement because Bostrom’s counsel caused a mistrial; however, Bostrom argues that both parties led to the mistrial as they both violated a motion in limine order.

“So I have a violation on both sides that I should not,” Crowder said at trial, “neither one of those things should have been said to the jury. I think that we’ll declare this a mistrial.”

Regardless of who is at fault, Bostrom claims causing a mistrial does not warrant liability for fees and costs.

Graham responded to Bostrom’s reply on Oct. 10 claiming the defendant is solely responsible for the mistrial arguing that its conduct during opening statements was the only action that resulted in a move for mistrial.

“A trial court, pursuant to its inherent authority, is empowered to dismiss a cause of action with prejudice for violations of court orders,’” the motion states.

The plaintiff's motion states that its side just wanted the court to remind the jury that opening statements are not presented as evidence. Graham and his counsel believed that would remedy misconduct, the motion states.

“Bostrom’s counsel fails to acknowledge it was ultimately Bostrom’s counsel that determined the court’s solution was unacceptable thereby forcing the mistrial,” the motion states. “In other words, while plaintiff’s counsel was willing to accept the proffered cure, it was Bostrom’s counsel and only Bostrom’s counsel that rejected the attempt to salvage the trial after Bostrom twice violated the court’s order.”

Crowder took the plaintiff’s motion for reimbursement of wasted trial costs and expenses under advisement on Oct. 11.

Crowder scheduled a re-trial date for Jan. 13, 2014 at 9 a.m. A pretrial is set for Jan. 9, 2014 and the case is set for private mediation on Nov. 15.

Mike Murphy of Freeark, Harvey, Mendillo, Dennis, Wuller, Cain & Murphy in Belleville represents Bostrom Seating Corporation.

Madison County Circuit Court case number 05-L-659

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