Burke latches onto class with corpse representative

By Steve Korris | Oct 5, 2007

Jeffrey Millar

Richard Burke

Former Lakin Law Firm attorney Richard Burke has grabbed for control of a Madison County class action that the Lakins have carried on for almost four years with a corpse representing the class.

Though Burke's connection to the case ended when he left the Lakins nine months ago, he jumped back into it Sept. 21.

He entered an appearance for Helen Nemeth and moved to substitute her for the late Manuel Hernandez as representative of a class suing American Family Mutual Insurance.

He wrote to Circuit Judge Daniel Stack that, "The certified class's claims survive the unfortunate death of Manuel Hernandez."

Burke sued the Lakins in federal court in January, claiming they owed him a share of proceeds from class actions.

The Lakins countersued, claiming he conspired with the Chicago firm of Freed and Weiss to steal clients.

Freed and Weiss sued the Lakins in Cook County, and the Lakins sued Freed and Weiss in Madison County.

If Burke tried to steal clients he did not fare well, for most Lakin plaintiffs stuck with the firm after Burke left.

In the American Family case, the plaintiff could not choose. The plaintiff was dead.

While he lived, Hernandez represented car crash victims who received lower medical benefit payments than they should have received.

Circuit Judge Daniel Stack certified him as class representative in 2002. He appointed both the Lakins and Freed and Weiss as class counsel.

Hernandez died in 2004.

Stack held hearings and signed orders in the case after Hernandez died.

Stack modified the definition of the class after Hernandez died.

The definition covers accidents in Arizona, Idaho, Illinois, Indiana, Iowa, Missouri, Nebraska, Nevada, Ohio, South Dakota, and Wisconsin, from July 25, 1990, to the date of final judgment.

Last year, American Family reported Hernandez's death to Stack.

The Lakins moved to substitute Nemeth, the one Burke now seeks to certify, but at a hearing the Lakins withdrew Nemeth.

Then they sought to substitute the widow, Nora Hernandez.

Stack rejected her because she didn't belong to the class.

He set a Sept. 4 deadline to find a substitute.

The Lakins asked American Family to produce a list of everyone who might qualify as a class representative.

American Family objected.

At deadline the Lakins asked for 60 more days, arguing that American Family's objection kept them from identifying class members.

American Family attorney John Baroni of St. Louis answered Sept. 24 that, "It is class counsel's job to identify a suitable class representative."

"Class counsel should have known of the need for a substitute class representative over three and a half years ago," Baroni wrote.

"Class counsel pressed on with seeking to have the obviously unqualified Nora Hernandez named as class representative after withdrawing the even less qualified Helen Nemeth from further consideration.

"Upon information and belief, class counsel only recently began contacting purported class members via a direct mail campaign with the objective of seeking a replacement class representative."

He called the search for a substitute an exercise in futility.

Millar responded two days later for the Lakins, but not to American Family. He responded to Burke's sudden intervention.

He asked Stack for an order appointing the Lakin firm as lead class counsel, "in light of tactical differences that have arisen with respect to the prosecution of the matter…"

He wrote that the Lakin firm was aware that Nemeth was available as a potential class representative.

He wrote that the firm has been in contact with other class members interested in serving as class representatives.

"In determining which combination of the available class representatives should be presented by way of a motion to substitute, it has been incumbent on plaintiff's counsel to evaluate a variety of factors including potential issues concerning the optimal number and mix of class representatives, patient/provider status, potential individualized issues, potential sub-classing, and state and county of residency," Millar wrote.

"Weiss repeatedly counseled an alternative strategy, to forego further investigation and discovery and instead immediately substitute Ms. Nemeth as the sole class representative.

"Weiss unilaterally and prematurely filed an unauthorized motion to substitute Ms. Nemeth as class representative.

"Weiss further added a new affiliated counsel, Richard Burke, as an attorney of counsel to Freed and Weiss.

"Mr. Burke's appearance also was not authorized by the Lakin Law Firm.

"Indeed, Mr. Burke is currently engaged in litigation with the Lakin Law Firm."

Stack set a hearing Oct. 18.

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