Madison County Circuit Judge William Mudge has entered an order enforcing a man's $450,000 settlement of a scaffolding collapse injury case while excluding a clause the plaintiff claimed was not negotiated by the parties.

Plaintiff Gene Birdsell filed his emergency motion to enforce the settlement with defendants Keller Construction Inc. and ITW Red Head May 16.

In that motion, Birdsell claimed that ITW attached a "Medicare Addendum" to the settlement's release that would have obligated Birdsell to hold harmless the released defendants in the event that Medicare asserted future liens or demands. Birdsell alleged in his motion that the addendum was not negotiated as part of the settlement.

ITW is responsible for paying $135,000 of the settlement while the other remaining defendants pay the rest.

Birdsell sued Keller, ITW, Dayton Superior Corporation, OK Fasteners Inc. and Elite Contracting for damages he claims to have suffered when he was injured in a December 2006 scaffolding collapse on the Sugar Ford Creek Bridge.

Birdsell claims he suffered severe spinal injuries in the collapse.
Dayton and OK Fasteners were dropped from the suit in 2009.

In his May 16 filing, Birdsell called the Medicare ad-on "unethical."

In Mudge's order dated May 20, the judge orders ITW to deliver a $135,000 check to the plaintiff's attorney Bruce Cook within five days.

"The Check (ITW) is to be made payable to the plaintiff and plaintiff's attorney only – Medicare will not be included on the check," the judge's order reads. Mudge underlined "Medicare will not" in the handwritten order.

Birdsell will not be required to sign the Medicare addendum according to the order.

John Cunningham represents Elite and Keller.

Patterson Gloor represents ITW.

The case is Madison case number 08-L-831.

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