A dissenting appellate court justice says he would have granted a new trial to defendants ordered to pay a $2.28 million judgment in Madison County Circuit Judge Andreas Matoesian’s court in 2011, because of the judge’s “biased” questioning of a witness and his tolerance of collusion during jury selection.
However, Fifth District Appellate Court Justices Melissa Chapman and Bruce Stewart on Sept. 15 affirmed judgment against Imo’s Franchising and its Bethalto franchise, for injuries Matthew Bruntjen suffered in a crash with a pizza delivery car.
Dissenting Justice Stephen Spomer branded jury selection as “egregious,” writing that Matoesian in essence gave 12 peremptory challenges to the plaintiff and four to the defendants. Peremptory challenges allow attorneys to reject a certain number of potential jurors without stating a reason.
Defendants holding four challenges openly bargained to use them for Bruntjen’s benefit as part of a settlement, prompting Imo’s and the Bethalto store to move for mistrial, according to Spomer.
Matoesian denied the motion, and he denied another after the cooperating defendants settled and Bruntjen dismissed them.
“I do not believe the circuit court could in good conscience and in accordance with principles of justice condone such behavior nor should this court affirm a verdict rendered by a jury that was selected in such a manner,” Spomer wrote.
Spomer would have granted a new trial not only over jury selection but also over Matoesian’s questioning of franchise owner Annette Wilson.
Matoesian asked Wilson: “You really just rented the Imo name, have you not?”
Wilson: “Pretty much.”
Matoesian: “Without Imo there couldn’t be you. Without you there couldn’t be a driver. So no one is responsible?”
Wilson: “I have taken the responsibility.”
Matoesian: “How about Imo?”
Wilson: “I don’t see how they could possibly be responsible.”
Matoesian: “Let’s get to the meat of this case. Is there an agency relationship?”
Wilson: “Between the store and Imo?”
Matoesian: “You can’t answer that, right?”
Wilson: “I don’t understand the question.”
Matoesian: “You get a pack of material an inch thick?”
Matoesian: “It seems like no one has read it.”
Wilson: “I have read it but I did not memorize it.”
Matoesian: “There has been a lot of wasted time and a lot of denying. Let’s get to the point.”
He told defense counsel, unidentified in Spomer’s dissent, to go ahead. The lawyer asked three questions and said that was all.
Matoesian said to Wilson: “You’re lucky.”
Spomer wrote that he believed the questioning indicated bias on Matoesian’s part “regarding Imo’s liability for the plaintiff’s injuries, and deprived Imo’s of a fair trial.”
Justices Chapman and Stewart found no error with lawyers’ handling of peremptory strikes nor with Matoesian’s line of questioning with Wilson.
Chapman wrote that in jury selection, “each side was given the same number of challenges and the defendants agreed to the allocation among themselves.”
Defense didn’t request reallocation of challenges as statute provides, she wrote.
And according to Chapman, Matoesian’s colloquy with Wilson was not excessive in the context of a lengthy trial and not of the nature that would ordinarily cause prejudice.
“The record on appeal does not indicate an angry, sarcastic, or demeaning tone,” she wrote.
“While it may have been preferable if the judge had not made the remarks, ‘you really just rented Imo’s name,’ and ‘you’re lucky,’ both could just as easily have been said in jest and are ambiguous in meaning.”
The accident happened in 2009, when delivery driver Kenneth Lyerla crossed a center line and struck a van with Bruntjen inside.
Bruntjen sued Lyerla. He also sued his own driver, Jeremiah Greene, and van owner Jason Yelton. He sued his employer, Metro East Distributing.
After jury selection in the 2011 trial, Metro East, Yelton and Greene told Matoesian that Bruntjen had agreed to dismiss them for $20,000.
Bruntjen’s lawyers dismissed Lyerla during trial.
At trial, Bruntjen’s doctors testified that his condition included severe short term memory problems, decreased mental speed, and problems with concentration and verbal fluency.
Roy Dripps, Charles Armbruster and Michael Blotevogel, all of Alton, represented Bruntjen.
Gordon Broom, Theodore MacDonald, and Michael Young, all of Hepler Broom in Edwardsville, represented the Bethalto store.
Russell Scott, of Greensfelder, Hemker and Gale in Belleville, represented Imo’s Franchising.