Madison - St. Clair Record

Thursday, November 14, 2019

Hylla denies summary judgment in Cottrell suit

By Steve Korris | Jan 7, 2011


Two men who saw trucker Michael Mandeville fall from a car-hauling trailer swore he landed over there but now swear he landed over here.

Mark Mumaw and Andrew Swallom changed their deposition testimony about the accident in affidavits for Mandeville's suit against Georgia trailer maker Cottrell Inc.

Mandeville's lawyer, Brian Wendler of Edwardsville, filed the affidavits in December, along with a new one from Mandeville.

Cottrell moved to strike the affidavits, but Madison County Circuit Judge David Hylla instead gave Cottrell a chance to explore the discrepancies.

On Dec. 17, Hylla ruled that Cottrell could depose Mandeville by telephone about issues his affidavit raised and about his conversations with Mumaw and Swallom.

Hylla ruled that Cottrell could depose Mumaw and Swallom by phone on issues their affidavits raised.

Mandeville sued Cottrell in 2007, claiming design defects in the trailer caused him to fall at a dealership in Hiawatha, Iowa.

Cottrell moved for summary judgment, and Hylla heard arguments on Dec. 3.

The argument quickly escalated, on paper.

On Dec. 8, Wendler served Mandeville's affidavit on Cottrell.

Mandeville swore Cottrell incorrectly claimed he fell in an area marked in a photograph.

He swore there were two Sienna vans on the head rack upper deck at the time he fell.

"It would not be possible for me to have fallen in the area Cottrell claims because there would be no reason for me to be in this area," he swore.

"This is because the Sienna van in the area above the truck cab cannot be driven off the rig unless and until the second Sienna van directly to the rear is first moved," he swore.

"Such position claimed by Cottrell is wrong and contrary to my work habits," he swore.

He swore that when working on upper decks, as a matter of habit he held handrails.

"If a handrail was within reach, I would have held on to it," he swore.

"The reason I fell was because there was no handrail to hold on to."

Cottrell lawyer Dan Carpenter, of Armstrong Teasdale in St.Louis, wrote the next day that the affidavit contained inadmissible speculation, conjecture and opinions.

He wrote that Cottrell didn't argue he was in a particular position, but rather argued he couldn't prove a defect caused his fall.

He wrote that Mandeville wrongly assumed that people using handholds can never fall.

"People faint, have dizzy spells, their hands slip with sweat or oil, debris blows, or countless other things cause falls – all with handholds available," Carpenter wrote.

Wendler then served Mumaw's affidavit, swearing he testified in deposition based on his memory and a photograph a Cottrell lawyer supplied.

"It was never claimed to me that the photo used at my deposition was an accurate photo of the rig from which Mr. Mandeville fell," Mumaw swore.

"I have reviewed additional photos from Mr. Mandeville's lawyer who informed me such photos were taken by Cottrell showing the same model trailer Mr. Mandeville fell from with a Sienna van on it in the area above the cab.

"I have also been asked to assume the rig Mr. Mandeville fell from was loaded with two Sienna vans with the first one in the area above the cab backed on and the second behind it driven on."

He swore that Cottrell marked Mandeville's fall on a photo based on his testimony.

"If the first vehicle on the rig was, in fact, backed up to the ramp in position directly above the cab then the claim by Cottrell cannot be correct," Mumaw swore.

"I distinctly remember I was located on the passenger side of the rig in the Toyota showroom when Mr. Mandeville fell."

He swore Mandeville was unloading a vehicle that was driven on, not backed on.

Wendler then submitted Swallom's affidavit, mostly identical to Mumaw's

"He could not have landed in the area marked in the photo because I would not have seen the body falling in that position from my view angle unless I was looking through the cab which I was not to the best of my memory," Swallom swore.

"Therefore, it is my belief that the area marked and labeled 'found lying here' on the photo by Cottrell does not correctly depict where Mr. Mandeville fell."

In response on Dec. 15, Carpenter called Mumaw's
affidavit "nothing more than a recitation of plaintiff's arguments with a notary seal at the end."

"It is based on certain factual assumptions, contrary to his own deposition testimony, that plaintiffs provided to him," Carpenter wrote.

He wrote that Mumaw testified in deposition that the first vehicle was driven on.

On the same date, Wendler wrote that the foremost van was backed on for delivery to Waterloo, Iowa.

"Thus, there was no reason for plaintiff to be in the vicinity of that first van located directly above the cab," he wrote.

Hylla denied Cottrell's motion for summary judgment on Dec. 17.

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