MADISON - ST. CLAIR RECORD

MOUNT VERNON - Fifth District appellate judges have revived a Lakin Law Firm claim for punitive damages on behalf of clients from Tennessee who won $1.5 million in actual damages from a Madison County jury.

Three appellate judges agreed that Circuit Judge Andy Matoesian quoted an obsolete law when he denied a claim of Carl Brdar and Vicky Brdar for punitive damages against trailer maker Cottrell Inc., of Georgia.

The judges did not order a punitive trial. They identified the correct law and told Matoesian to use it in deciding whether to hold a punitive trial.

Justice Melissa Chapman wrote, "If the court concludes that there is a reasonable likelihood the Brdars will recover punitive damages, only then will they be entitled to a new trial limited to that issue."

While the judges granted the Lakin firm's appeal, they denied one from Cottrell seeking to throw out the first trial.

They declared Madison County a convenient forum for Tennessee plaintiffs suing a Georgia defendant over an accident in Delaware.

Justices Stephen Spomer and Bruce Stewart concurred with Chapman.

Carl Brdar hauled vehicles for Cassens Transport, a business of the Cassens family in Edwardsville.

In 1999, a chain broke on a Cottrell trailer while Brdar loaded Dodge Durangos at Newark, Del. He suffered neck and shoulder injuries.

In 2000, the Brdars sued Cottrell, General Motors and DaimlerChrysler.

They did not sue Cassens Transport but they sued two other family businesses, Cassens Corporation and Cassens & Sons.

All defendants but General Motors moved to dismiss so the Brdars could sue in Tennessee. Matoesian denied their motions.

In 2003, the Brdars settled with all defendants but Cottrell.

Cottrell filed a third party complaint against Cassens Transport and two chain distributors, Vulcan Chain and C. F. Becker.

The new parties moved to dismiss, arguing that the statute of limitations had run. Matoesian granted the motions.

Cottrell moved to apply Tennessee law. Matoesian denied it.

Cottrell moved to exclude industry reports. Matoesian denied it.

Cottrell moved to bar a witness the Brdars planned to call as an expert. Matoesian denied it.

At trial in 2004, Brdar moved to present a punitive claim to jurors.
Matoesian denied it. He quoted state law requiring clear and convincing evidence of evil motive or reckless and outrageous indifference to unreasonable risk of harm.

At the close of trial, jurors awarded Carl Brdar $1,486,584.40. They awarded Vicky Brdar nothing on her claim for loss of consortium.

Cottrell moved for judgment notwithstanding the verdict or a new trial.

The Brdars moved for a punitive trial.

Matoesian denied both motions.

Cottrell appealed, arguing that Matoesian committed errors when he denied transfer to Tennessee, allowed the expert to testify, and dismissed third parties.

Cottrell claimed he allowed documents he should have excluded and he refused to give an instruction to the jury that Cottrell requested.

The Brdars appealed Matoesian's denial of punitive damages, arguing that the law he quoted had been found unconstitutional.

They also sought a new trial on loss of consortium.

Justices Chapman, Spomer and Terence Hopkins heard oral arguments.
Hopkins died, and Stewart substituted.

The judges issued their opinion March 27.

They rejected the claim for loss of consortium, finding that the Brdars had not presented enough evidence.

On punitive damages, they agreed that Matoesian quoted the wrong law.

Chapman wrote, "It is not clear what conclusion the court would have reached had it applied the correct law."

In denying Cottrell's appeal she wrote, "We find none of these arguments persuasive."

On the question of forum, she found it "extremely relevant" that the case came to the Fifth District after a full trial.

She wrote, "Were we to reverse the verdict on grounds of forum non conveniens alone, we would be requiring the parties to go through an otherwise unnecessary second trial in a different forum after going through a Madison County trial."

She wrote, "To hold that a doctrine designed to promote convenience can lead to that result would be absurd."

She wrote that Cottrell did not appeal Matoesian's denial of the motion to apply Tennessee law.

She wrote, "Thus, it cannot argue that this ruling was incorrect in an effort to seek a new trial in Tennessee based on its speculative claim that a Tennessee court 'undoubtedly' would have ruled differently with regards to the choice of law issue."

Charles Armbruster III, of the Lakin Law Firm, represented the Brdars. Brian Wendler of Edwardsville, Dawn Karnadulski of Granite City and Martin Clay of Sunset Hills, Mo., also represented them.

Karen Kendall of Peoria represented Cottrell. Former U. S. Sen. Alan Dixon of St. Louis and Robert Shultz of Edwardsville also represented Cottrell.