Ann Maher Aug. 13, 2015, 4:05pm


A Smithton man who claims he was forced to have part of his left leg amputated after a Mack dump truck driver ran him over will have his case heard by a Madison County jury.

Jurors were being selected Monday afternoon in Circuit Judge Dennis Ruth's court.

Plaintiff William Smith claims the incident happened while he was performing asphalt density tests at the intersection of Lakeview Acres and Illinois State Route 162 in Maryville for his employer, Quality Testing and Engineering, on June 7, 2013.

The 2014 suit originally named B.P. Hauling, truck driver Thomas G. Volmer, Thiems Construction Company and The Kilian Corp. as defendants.

Kilian Corp., represented by David Simkins of Wuestling and James in St. Louis, remains the only defendant at trial.

Kilian has denied liability for the incident. However, less than a week before trial got started, Ruth entered a scalding order striking Kilian's answers and affirmative defenses, with the exception of its denial of willful and wanton conduct.

Ruth concluded that Kilian and Simkins concealed facts during discovery as it related to a former company safety officer and a safety manual. 

In a 10-page order entered Aug. 5, Ruth wrote that the plaintiff had been prejudiced in his "ability to investigate, develop, and otherwise pursue his case against Kilian." 

"Kilian's compliance with the rules of discovery in the instant matter has been, at best, grossly negligent, and at worst, downright deceitful," Ruth wrote. "Its fractional disclosure is equivalent to outright lying." 

According to Ruth's order, Simkins had produced a different safety manual that contained additional safety requirements in an unrelated case, Beard v. Kilian, that were not present in the safety manual that Kilian produced to Smith. 

He also found that the Kilian brothers, as defendants, were evasive regarding the departure of the company's safety officer Michael Morris. 

"The Court's ruling is based on the totality of the circumstances including, but not limited to: Kilian's failure to timely produce the safety manual that it produced in the Beard case, despite being represented by the same attorney in both cases; Kilian's failure to confer with its attorney to ensure its discovery responses were complete and accurate; the evasive responses given to this court by James Kilian, Jeff Kilian, and their attorney at the hearings on sanctions; the lack of urgency, preparation and concern demonstrated by the demeanors of James Kilian, Jeff Kilian and their attorney when addressing this court at the hearings on sanctions; James and Jeff Kilian's inability to explain the circumstances under which Mr. Morris left Kilian, despite the fact that Mr. Morris is a close family member of one of the Kilian brothers and his office door was directly between James and Jeff's offices; Ken Killian's absence from the May 1st hearing on sanctions, despite the court instructing Mr. Simkins to bring 'the Kilians' with him to court; and Jeff Killian's failure to conduct a thorough search of its records until not just after Plaintiff filed his motion for sanctions but after the hearing had actually been conducted." 

Smith's employer, Quality Testing Engineering is a third party defendant. The company is represented by Barry Noeltner of Heyl Royster in Edwardsville.

Smith claims that in addition to partial amputation of his leg, he has suffered from deep venous thrombosis and pulmonary embolism. He also claims he suffered left shoulder damage, partial thickness burns to his arms, leg and back, experienced pain and suffering, incurred medical costs, lost wages, endured a diminished earning capacity, lost his enjoyment of life and suffered disfigurement and disability.

His wife, Faith Smith, claims she lost her husband’s society and services, including his support, devotion, care, society, companionship and consortium, because of the incident.

At trial, the Smiths are being represented by Eric J. Carlson of Byron, Carlson, Petri and Kalb and Tad Armstrong of Edwardsville.

Madison County Circuit Court case number 14-L-391.

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Organizations in this Story

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

BP Hauling Cargo & Freight
1102 McDonough Lake Rd
Collinsville, IL 62234

Quality Testing & Engineering
803 W State St
O'Fallon, IL 62269

Heyl Royster
124 SW Adams St
Peoria, IL 61602

Armstrong Law Offices
216 E Park St
Edwardsville, IL 62025-1711

Byron, Carlson, Petri & Kalb, LLC
411 St. Louis St.
Edwardsville, IL 62025

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