Stack denies Lakin attempt to use widow in class action

Lakin Law Firm class action attorneys who tried to carry on a dead man's class action suit through his widow should have stuck with the corpse.

On July 6 Madison County Circuit Judge Daniel Stack denied a Lakin motion to declare Nora Hernandez an adequate representative of a class the late Manuel Hernandez represented against American Family Insurance.

Manuel Hernandez accused American Family of improperly reducing payouts on injury claims from auto accidents.

American Family made the decision easy for Stack.

The insurer submitted a deposition of Nora Hernandez about as ridiculous as the Abbott and Costello routine, "Who's on first?"

Although Hernandez had agreed to testify in English, the deposition did not get far before interpreters mixed themselves up in it.

Hernandez, answering defense attorney Anthony Martin of St. Louis, said she lived in Granite City and she was born in Mexico in 1970.

When Martin asked how many years of education she had, interpreter Graciela Hartenbach had to translate.

Hernandez said, "I don't recall. Six, maybe six."

After that Hartenbach would interpret a lot, though the transcript omits all Spanish and makes it hard to tell how many questions she translated.

Hernandez told Martin she married Manuel in 1996.

She said Manuel had four children -- Jesus, Isabel, Maggie and Alonso.

She did not know their ages or addresses.

She said she owned N & H Exteriors.

Martin asked if she had a partner. Hartenbach translated partner as companero, which means companion. Hernandez said no.

Interpreter Fernando Torres said the correct word should be associate.

Martin asked if she had an associate. Hartenbach translated. Hernandez said no.

Martin asked the name of her auto insurer. She said American Family.

This sounded like music to Martin, since it cast doubt on her sincerity in accusing his client.

He asked if she had other American Family coverage. She said, "For my company, for my houses, my automobiles."

Martin asked if she filed probate papers after Manuel died. Hartenbach translated.

Lakin attorney Dennis Barton objected. Hartenbach translated that.

Hernandez said, "I don't understand."

Martin said, "Okay now, is that directed to what he said or what I said?"

Hernandez said, "What you said."

Martin asked her if a petition was filed Feb. 6, 2004.

Barton told Martin to show her the document. Hartenbach translated.

Martin said, "What did she say?"

Hartenbach said, "Okay."

Martin said, "To what, though?"

Hartenbach said, "I translated that he said if you're going to make her swear to something, why don't you show her the papers?"

Barton said, "That's not what I said, though."

Hartenbach said, "I'm sorry. He just said what he is saying yes to."

Barton said, "Right."

Martin asked about Manuel's heirs. Hartenbach translated.

Torres said, "Descendiente is descendant. Heirs is heredoros."

Hartenbach said, "Heredorors. I stand corrected."

Hernandez said, "Si."

Martin asked if Maggie, Jessie and Isabel filed papers to have her removed as administrator of the estate.

Barton objected and asked how it was relevant to her adequacy.

Martin said what took place in the estate affected her adequacy.

Martin asked Hernandez if she recalled the estate being reopened.

Hartenbach excused herself and said she was using the word for will.

She said there was no will.

Torres said, "Sucesion de bienes."

Hartenbach said, "I'm corrected. Gracias."

Millar said, "I don't understand what just happened."

Hartenbach said, "It was just a switch of words."

Martin showed Hernandez a document and asked if the heirs said she failed to keep accurate records.

Hartenbach and Torres talked off the record. Hartenbach translated.

Hernandez said, "I don't understand this because it says that I didn't have my files in order, my papers in order."

Martin said, "Without a translator, are you able to understand what paragraph three says?"

Hernandez said, "Little bit."

Martin said, "The rest of the question is regarding collection of the assets and income of the estate."

Hernandez said, "Number two is true."

Martin said, "Number two what is true?"

Hartenbach said, "Paragraph number two is what she's pointing at."

Martin asked if she understood it was a petition to remove her as administrator of the estate.

Barton said, "I would object as to a legal conclusion as to whether it's a petition."

Hernandez said, "I don't understand."

Martin asked who wanted to take her off.

She said Maggie, Jesus and Isabel.

Martin asked why.

Barton objected. He said the question called for legal interpretation of the document and for speculation.

Martin asked how issues in the petition were resolved.

Barton said Hernandez could answer if she understood what he meant by resolved.

Hartenbach translated.

Torres said, "I'm sorry. The translation is going in a totally different direction."

Hartenbach said, "Did you say how were the issues resolved?"

Martin said, "Correct. That's exactly what I said."

Barton said, "No, she said los problemos. That's different."

Hartenbach said, "Issues can be problems, can't they?"

Hernandez said, "Can I do a question?"

Martin said, "Go ahead and ask it. I may not answer it."

Hernandez said, "Why are you asking me these questions?"

Martin said, "Because it's important."

Millar said, "From his point of view."

Martin asked Hernandez why she reimbursed the estate more than $11,600.

She said, "Because I paid some of my things. I thought I could take money out of there and I paid some of my things. But I gave it back. I put it back."

Martin said, "The reason was to resolve the problems raised in the petition?" Hartenbach translated.

Hernandez said, "Did I deposit the money to fix the problems? Maybe."

Torres said, "It's a very simple question given to her, but somehow we are not getting the simple answer to it. We are getting something else."

Hartenbach told Torres, "Just ask it. See if you can ask it better."

Barton said, "No, no, no."

Martin asked Hernandez if she knew about the American Family suit before Manuel died. She said no.

Martin asked if she told Maggie about it. She said, "I don't talk to them about anything."

Martin asked what provision the estate made to pay costs associated with the suit. She said she did not know.

He said, "But you're the administrator of the estate."

She said, "But I didn't put this case. My husband. I just come and representing."

He asked what she understood about medical payments insurance.

She said, "Sometimes they don't pay you the correct. You pay so much and they pay only half."

He said, "Is that what happened with you in this case?"

She said, "It's not my case."

He asked what she had done to learn about the lawsuit.

She said, "I don't understand what I have done."

He showed her a document and asked if she was a member of the class described in paragraph six.

She said, "It's difficult, the question, because I didn't file the demand. I didn't put the demand."

He asked if Manuel was included in the class.

She said, "Is he included? Sure."

Martin said, "How do you know that?"

She said, "Well no, I really don't know."

He asked if she talked to Manuel's doctor about findings or treatment.
Hartenbach translated. Torres broke in. They talked off the record, loudly.

Martin said, "Let's not talk over one another, okay?"

Torres said, "Finding's word is hallazgo. I'm so sorry but I can't -"

Hartenbach said, "That's okay. Don't get excited."

Torres said, "No, if you guys go to a court and you want a translation like she's providing right now -"

Hartenbach said, "We're not in court, okay?"

Torres said, "Oh yes, this is in court."

Martin directed Hernandez's attention to the second paragraph of the complaint and asked if she understood it.

She said, "Not understand."

He asked what she wanted out of the case.

She said, "What do I – I didn't set this demand."

He asked what she wanted the court to do.

She said, "The pay was just."

He said, "How should the people have been paid?"

She said, "I don't know."

In spite of the deficiencies in the deposition, Lakin attorneys submitted it as evidence for the adequacy of Nora Hernandez.

Stack didn't see it their way. At the hearing he gave them 60 days to find a new plaintiff.