MADISON - ST. CLAIR RECORD

Madison County Circuit Judge Andreas Matoesian abused his discretion when he granted a new trial to the plaintiff in a negligence lawsuit, the Fifth District Appellate Court has held.

In an unpublished order released Dec. 31, the appeals panel reversed Matoesian's 2009 order granting Vickey Metz a new trial in her case against Rosewood Care Center, a nursing home in Edwardsville, and HSM Management Services.

Metz sued the defendants as the special administrator and representative of her mother, Blanche Rexing, who briefly stayed at Rosewood before dying in August 2005 at age 86.

She accused Rosewood of being negligent in administering medication to her mother and HSM of being negligent for failing to implement policies and procedures for the administration of meds at Rosewood.

Metz’s suit also included claims alleging wrongful death, willful and wanton conduct and a violation of the Nursing Home Care Act, as well as one dealing with the hiring of the nurse who administered medication to her mother.

According to the appellate court order, Metz asked the jury during closing arguments for a verdict in excess of $15 million.

Defense counsel, the order states, replied in closing that the “Lakin Law Firm was seeking ‘jackpot justice’ by asking for over $15 million for the loss of an 86-year-old woman who died from natural causes.”

Wood River attorney Brad Lakin represented Metz and East St. Louis attorney Kevin Hoerner provided defense at the trial court level.

Matoesian agreed with Metz and granted her request for a new trial. On appeal, the defendants argued that that a new trial was not warranted because defense counsel’s statements did not deprive Metz of a fair trial.

The Fifth District initially denied the defendants’ petition for leave to appeal, but granted it after the Supreme Court directed it to do so in a 2009 supervisory order.

And after hearing oral arguments in the case, a unanimous panel of the Fifth District late last month reversed the lower court.

Justice Richard Goldenhersh delivered the judgment of the panel and Justices Stephen Spomer and James Wexstten concurred.

In reversing the lower court, Goldenhersh wrote that Matoesian abused his discretion in granting Metz a new trial because his reliance on Boren v. The BOC Group (2008) was misplaced.

The plaintiff in Boren sued multiple defendants, claiming that his Parkinson’s disease was the result of being exposed to fumes during his career as a welder.

After the jury in Boren returned a verdict in favor of the remaining defendants, the plaintiff filed a motion for a new trial.

The trial court granted it, in part, because of an inference made during trial that the plaintiff’s attorneys were part of a billboard campaign to solicit welding fume victims.

“In the instant case, none of the alleged errors rise to the level of the discovery error in Boren, which can only be described as egregious,” Goldenhersh wrote.

He added, “While defense counsel made some inappropriate comments, the record here, unlike Boren, reflects the jury decided the case on the evidence and not prejudice towards plaintiff's attorney.”

Goldenhersh noted that the appeals panel agreed with the defendants that several issues raised on appeal were waived by plaintiff’s failure to object to defense counsel’s comments during closing.

The citation for the unpublished order is 2012 IL App (5th) 090133-U.