MOUNT VERNON – John Hopkins and Mark Goldenberg must defend themselves against a legal malpractice claim in Cairo, Fifth District appeals judges ruled on Feb. 11.
They directed Alexander County Circuit Judge Mark Clarke to hold trial for the parents of David Merritt Jr., who died in a crash in 1998, at age six.
David Merritt Sr. and Tiffany Merritt claimed in 2001 that Hopkins, Goldenberg, and the Hopkins Goldenberg firm should have counseled them to reject a settlement offer.
Clarke granted summary judgment to Hopkins and Goldenberg in 2008, but according to Fifth District judges he made a mistake.
"It is for the jury to decide what the plaintiffs would have received in the underlying litigation had the attorney recommended a rejection of the inadequate settlement offer and pursue a trial," Justice James Wexstten wrote.
Hopkins and Goldenberg no longer practice together.
Jurors heard the case before, but in the wrong court.
In 2003, at trial before Madison County Circuit Judge Philip Kardis, a jury awarded the Merritts $675,000.
On appeal in 2005, Fifth District judges ordered a new trial and transferred the case to Alexander County.
Clarke didn't deliver a new trial, but now he must.
In the underlying wrongful death case, Hopkins Goldenberg filed suit in Alexander County against the driver and the owner of a truck that caused the crash.
The Merritts settled for $200,000, but decided they should have held out for more.
They hired new lawyers, Glenn Bradford and Morris Chapman, to sue Hopkins and Goldenberg in Madison County.
Hopkins and Goldenberg moved for transfer to Alexander County, and Kardis denied it.
Roy Dripps of the Lakin Law Firm, testifying for the Merritts as an expert on injury litigation, swore the settlement was too low because the truck owner admitted liability.
Another expert for the family, Jack Carey, testified that he had acquired $3 million in cases involving young adults.
At trial, Dripps swore the case was worth a million or two.
He said he had been involved in an Alexander County personal injury suit but hadn't taken it to trial.
He said he hadn't completed any research on Alexander County verdicts or settlements.
He said he tried a wrongful death case to verdict, but it didn't involve a minor.
Carey didn't testify.
For Hopkins and Goldenberg, Daniel Konicek of Chicago argued that
Alexander County was a poor rural county with little litigation.
He argued that the biggest verdict in county history was $300,000, and it involved loss of wages and heavy medical bills.
Jurors and Kardis pinned blame on Hopkins and Goldenberg, but Fifth District judges handed the firm a double victory.
First, they ordered a new trial because the Merritts failed to present enough evidence to show that they would have received more than $200,000.
Second, they directed Kardis to transfer the case to Alexander County.
Kardis complied, and Clarke took over.
Hopkins and Goldenberg moved for summary judgment in 2008, and Clarke granted it.
He wrote that the family hadn't added "one scintilla of evidence to this record since the appellate court found their case insufficient to support a jury verdict."
Clarke, however, misunderstood his mission.
Wexstten wrote that the Fifth District did not conclude that no verdict in the family's favor could ever stand.
"Instead, we concluded that the jury's verdict was contrary to the manifest weight of the evidence, and we reversed the judgment and remanded the cause for a new trial in Alexander County," Wexstten wrote.
He wrote that depositions of Dripps and Carey, combined with trial testimony, created a genuine issue of material fact.
"Because the testimony raises questions of fact for a jury's determination, the summary judgment was improper," he wrote.
"Clearly, from the language of this court's previous opinion, the court found it prudent to transfer the cause to Alexander County so that an Alexander County jury would determine what value to place on the underlying case," he wrote.
Justice Thomas Appleton and Justice Bruce Stewart joined the opinion.
William Brandon of Carbondale represented Hopkins, Goldenberg, and the firm that now goes by the name of Goldenberg, Miller, Heller and Antognoli.
Bradford continues to represent the family.