One month after filing a personal injury lawsuit in Madison County, Joe Smith of Troy will be fighting his battle in federal court, at least for the time being, as the three defendants removed the case to federal court on Aug. 12.Howard's liability for punitive damages is to be established by clear and convincing evedince and any award for punitive damages violates its due process rights guarenteed by the Fifth and Fourteenth Amendment of the U.S. Constitution and by the due process provisions of the Illinois Constituition and would be improper under the common law and policies of Illinois.
Joe Smith filed suit July 15, against A.B. Chance Company, Hubbell Inc. and Howard Industries claiming the trio of defendants negligently, recklessly and intentionally designed transformers and fuse cutouts which they knew were defective.
Smith and his wife, Maria, who also is seeking damages for loss of consortium, elected to represent themselves in the case, rather than hire a lawyer. They are seeking attorney fees from the defendants.
Smith, who worked for Ameren IP, claims he was he was disconnecting a stinger on July 18, 2003, and while waiting for a "grip all" stick from his foreman, he was hurt when a flash occurred.
In his suit Smith claims severe burns, disabling physical injuries, psychological injuries, medical expenses, economic losses, pain and suffering, emotional distress and mental anguish and loss of ordinary pursuits and enjoyments of life.
Smith alleges that the defendants placed the cutout and stinger system into the stream of commerce without insulating connecting wires, and then sold the products to Ameren IP.
In the defendants' removal notice, they state that grounds for removal are based on diversity jurisdiction, stating Hubbell and its subsidiary are based in Aiken, S.C., while Howard is based in Laurel, Miss.
Armstrong Teasdale of St. Louis is representing A.B. Chance and Hubbell and Howard is represented by Holtkamp, Liese, Childress & Schultz also if St. Louis.
Howard also filed an answer to the Smith's complaint, claiming that it fails to state a cause of action upon them where relief can be granted.
"Whatever damages were sustained by the Smiths, were caused by the negligence of Joe Smith in failing to exercise ordinary care, and therefore if the Smiths should recover from Howard, such recovery should be reduced in porportion to Joe Smith's negligence," the brief states.
Howard also claims that Smith had full knowledge of the product at issue and assumed full risk after he learned of the product's problems, but chose to work with it anyway knowing harm might result, and further states that Smith was not using the product in the way it was intended to use.
Howard also claims that the Smiths' claims for punitive damages is barred on the following grounds:
The claim for punitive damages cannot be sustained because an award of punitive damages under Illinois law without bifurcating the trial and trying all punitive damages only and if and after liability on the merits have been found.
Howard is asking that it be dismissed from the Smiths' case
Federal Judge William Stiehl has been assigned the case.
Howard also filed a similar answer to the Smiths' complaint, claiming that the complaint fails to state a cause of action upon them where relief can be granted.
05 584 WDS