Defendants get a break in 2007: Whose 'judicial hellhole' is it anyway?

By Steve Gonzalez | Dec 31, 2007

Circuit Judge Dan Stack

Circuit Judge David Hylla

Madison County may no longer be a "judicial hellhole" for civil litigation defendants. But ask a trial lawyer to gauge the climate and you may get a different answer.

In 2007 Madison County juries rejected plaintiff claims time after time. And when jurors did award plaintiffs monetary damages, the amounts awarded were fractions of what was asked.

One theme seems to have been clear with jurors all year -- Madison County's reputation as a place for "jackpot justice" was no match to their jurisprudence.

Defense Verdicts

In the first major trial of the year, jurors cleared Patrick Zimmermann, M.D. of Family Medicine Associates in Collinsville, of any wrongdoing after a two-week trial in January.

Douglas Storm claimed Zimmermann failed to diagnose his wife Maria's cancer which began as a mole on her back.

Next, jurors in the highly publicized Vioxx trial rejected plaintiff's claim that Patricia Schwaller's sudden heart attack at age 52 was caused by taking Vioxx.

Vioxx jurors were asked whether they watched Dr. Phil or Oprah, if they had a bumper sticker on their car, or if they thought all big corporations were evil.

Jurors also sided with Georgia Carpet in a two-day trial in which Cherie Sedlacek alleged the carpet store created or maintained a dangerous and hazardous condition on the showroom floor by leaving the saw in the display area. She claimed she did not see the saw because she was distracted by viewing the store displays.

Another jury ruled NL Industries was not liable in causing John Larson's asbestos-related illness. Larson's attorney asked the jury to award him between $6 and $29 million.

In another instance, jurors returned a verdict in favor of Dr. Charles Sammis who was on trial for medical malpractice. Joseph Lamere of Bethalto filed the suit against Sammis alleging he failed to diagnose a Transient Ischemic Attack (TIA) which led to a series of strokes that left him paralyzed on the left side of his body.

Five defense verdicts in December alone

Five separate juries in a series of cases in the month of December -- usually a slow month for trials -- all came back with defense verdicts.

The first December jury rejected plaintiff attorney Brad Lakin's request for $15.6 million in a wrongful death trial against Rosewood Care Center of Edwardsville.

After deliberating just two hours, jurors gave nothing to Vickey Metz of Edwardsville. She claimed her mother, Blanche Rexing, entered Rosewood for rehabilitation and died of acute toxicity from oxycodone and opiates.

Two days later, after deliberating 65 minutes, jurors reached a verdict in favor of Kone Elevator which had been sued by Erma Smith who alleged from using her hand to stop an elevator door at Saint Anthony's Hospital.

Smith had claimed the elevator company failed to warn of the hazards of the door, failed to recommend safety devices to the hospital and failed to maintain the elevator.

The next day a jury cleared NL Industries of any wrongdoing in NL's second asbestos trial of year. NL did not call a single witness to testify on its behalf.

The day after that a jury rejected a claim brought by Mary Baugus against James Dalla-Riva, M.D. Baugus alleged Dalla-Riva performed a total hysterectomy without medical justification.

The last defense verdict was in favor of the Madison County Fair Association which was sued by Wayne and Gloria Carson. Wayne Carson claimed he was standing in the pits at the speedway in Highland on July 5, 2004 when a right front tire broke loose from a stock car, striking him and causing brain damage.

Jurors said Carson assumed a certain risk when watching the race from the pits.

Reduced plaintiffs' verdicts

On March 9, a jury cut in half its $204,375.77 award to Marilyn Rudolph after a five-day personal injury trial against Ramon's El Dorado Restaurant in Collinsville.

The jury reduced the award after deciding that Rudolph was 50 percent negligent for a trip and fall accident at the restaurant on May 16, 2004.

In a bizarre twist, the jury was required to return to deliberations after one juror, who was polled by Madison County Circuit Judge Barbara Crowder, said she disagreed with the verdict returned.

Crowder sent the jury back to deliberate until the verdict was unanimous.

Rudolph's husband, Max, was seeking $150,000 in damages for loss of consortium, however the jury ruled against him.

In June, a jury awarded William Clawson $111,118.64 for injuries he sustained after driving a golf cart into the path of his 2003 Chevy Cavalier that was being repossessed.

After the eight-day trial ended in Circuit Judge David Hylla's courtroom, the jury reduced Clawson's take to $56,837.18, determining that he was 48.35 percent responsible for his injuries since he deliberately drove the golf cart directly into the path of his car.

In October, a Madison County jury awarded a fraction of damages sought in a medical malpractice claim against area obstetrician Tina Gingrich, M.D.

After a three-day trial jurors reached a verdict in favor of plaintiff Judy Thiel of Collinsville who had alleged Gingrich deviated from the standard of care when delivering a baby who suffers from Erb's Palsy.

Thiel had asked for $1.2 million in damages, but was only granted $200,000.

And finally, after three long days of deliberations, a Madison County jury sided with the family of Rosewood Care Center resident Margaret Schwab, but only awarded $58,000, a fraction of the $1 million in damages they requested.

The lawsuit was brought in 2004 by Thomas Schwab, who claimed Margaret Schwab's neck and back injuries suffered during a fall in her room on Dec. 21, 2003, led to her death.

Judges played a role, too

Jurors were not alone in deciding the final outcome in some cases. Madison County judges also sent messages of their own.

For instance, Madison County Circuit Judge Dave Hylla dismissed with prejudice a wrongful death lawsuit because the plaintiff's attorney failed to produce an affidavit of merit on time.

That meant that Lorna Hinnen's claim against Troy family practitioner Dolores Cantrell, M.D. over the care of her husband Larry Dean Hinnen was dissolved. The suit was filed in Madison County Circuit Court May 14 alleging Cantrell deviated from standards of care.

But Hylla got rid of the suit, which also named Jim Miller as a defendant, on Sept. 20 after lawyers representing the defendants successfully argued the case should be dismissed pursuant to 2-622 of the Illinois Code of Civil Procedure.

Rick Hunsaker of Heyl Royster in Edwardsville argued that plaintiff attorney Stephen Evans of St. Louis failed to submit an affidavit of merit even though he had Hinnen's medical records for well over a year.

Stack factor

Madison County Circuit Judge Daniel Stack continued to make it clear that Vioxx plaintiffs must live in-county if they want their cases heard. Stack also let out-of-towners know that if they want their cases to remain in his court they had better have compelling reasons.

Stack entered an order July 31 transferring two plaintiffs' claims against Merck to more convenient counties in Illinois.

Emil Smith, who claims Vioxx caused his heart attack and other health problems, had his case transferred to Kane County. Connie Testa, who claims Vioxx caused her stroke, had her claim moved to Will County. Their claims were originally included in a single lawsuit that contained a Madison County resident, but Stack severed their cases.

On Feb. 7, Stack also sent two other Vioxx cases to DuPage County and one more to Sangamon County.

In addition, Stack also dismissed Lanny Darr's class action against Cardinal Glennon Children's Hospital of St. Louis.

Stack wrote in an April 11 order that Darr's plaintiff, Jacqueline Johnson, failed to state a cause of action against Cardinal Glennon.

Darr sued for Johnson in 2004, alleging that Cardinal Glennon charged unreasonable rates to patients who lacked insurance.

He moved to certify Johnson as class representative for all uninsured patients of Cardinal Glennon.

In January, attorney Ed Bott of St. Louis notified Darr and Stack that Cardinal Glennon would not try to collect Johnson's bill.

Bott declared the case moot and moved to dismiss.

Mandatory mediation

The climate for medical malpractice litigants also changed in Madison County this year after all nine of the circuit judges in the Third Judicial Circuit created a local rule that requires mandatory mediation in medical malpractice cases.

The rule is the first of its kind in the state and is unique in that it not only calls for mandatory mediation of all medical malpractice cases, but also allows the parties to choose between judges or lawyers to mediate their cases.

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