Cottrell sues expert witness in Chicago after dismissing similar suit in East St. Louis

By Bethany Krajelis | Feb 14, 2013


CHICAGO - Cottrell Inc. filed a lawsuit this week against a man named as a defendant in a similar suit it voluntarily dismissed about two weeks ago in southern Illinois’s federal court.

The car hauler manufacturer on Tuesday brought its complaint in the U.S. District Court for the Northern District against J. Nigel Ellis, founder of Ellis Litigation Support and head of fall safety design companies Dynamic Scientific Controls and Ellis Ladder Improvements in Delaware.

Cottrell sued Ellis and his companies in August 2012 in the Madison County Circuit Court. The suit was removed to the federal court in East St. Louis the next month and dismissed on Jan. 30, two days after Cottrell filed notice of voluntarily dismissal.

Ellis previously said in a prepared statement that he was pleased the lawsuit was dismissed and “take that to be an admission that the suit was groundless.”

Like the dismissed suit, the complaint filed this week in Chicago accuses Ellis of breaching his promise not to communicate with plaintiffs’ attorneys while in discussions with the company about fall safety designs he was trying to sell it.

Cottrell contends that venue is proper in the Northern District of Illinois because “a substantial part of the events or omissions giving rise to the claims occurred” in that judicial district and the amount in controversy is more than $75,000.

The suit, which seeks $1 million in damages, includes counts against Ellis and his companies for breach of contract, negligence, fraudulent and negligent misrepresentation, fraud via omission, civil conspiracy and a violation of the Deceptive or Unfair Practices Act.

Cottrell claims in its suit that Ellis approached it in August 2005 as a safety professional in an effort to sell it safety designs he developed and that the two parties communicated from about November 2005 to May 2006.

As a prerequisite to agreeing to discussions with Ellis, Cottrell asserts that it inquired whether Ellis was communicating with any plaintiffs’ attorneys against the company and that he said he was not doing so.

Despite his alleged assurances, Cottrell claims in its suit that it discovered in 2011 that Ellis “secretly began communicating with Brian Wendler, a plaintiff’s attorney who has repeatedly sued Cottrell for more than a decade.”

Cottrell further contends that Ellis also had been in communications with the Occupational Safety and Health Administration (OSHA) “in 2006 and 2007 in matters adverse to Cottrell trailers without informing Cottrell of such communications and retention.”

The manufacturer claims that it didn’t hear from Ellis from May 2006 to March 2007, by which time he was picked up as an expert witness by Wendler, an Edwardsville attorney who represents injured truckers.

Wendler, according to the suit, disclosed Ellis as an expert witness in July 2007 in a case against Cottrell (Hancox v. Cottrell).

In that and subsequent cases, Cottrell asserts that Ellis and “various plaintiffs’ attorneys have relied up defendant Nigel Ellis’ communications and letters to Cottrell to support Ellis’ opinions, and plaintiffs’ claims of liability and punitive damages against Cottrell.”

Cottrell asserts in its suit that Ellis’ “conflict of interest with Cottrell” has spurred at least one judge to disqualify him as an expert witness in litigation against the manufacturer.

In Assaff v. Cottrell, a case brought in Chicago’s federal court, Chief Judge Holderman said in 2011 that, “I believe it is appropriate to disqualify him. I certainly understand plaintiff’s counsel’s position to …withdraw him, because there is no appropriate basis on which he can serve as plaintiff’s expert.”

Holderman then awarded Cottrell $18,000 in attorneys’ fees in that case “as a result of the conflict of interest and attorneys’ fees incurred in addressing it,” according to the suit.

Cottrell asserts that Ellis “continues to serve as an expert, relying on his unsolicited letters and communications with Cottrell to support his opinions” and that these “letters and communications continue to be used by plaintiffs’ attorneys to Cottrell’s detriment.”

As a direct and proximate result of Ellis’ conduct, Cottrell asserts that it wrongly incurred expert fees, costs and expenses, as well as deposition fees it paid to Ellis. It also claims its business reputation was damaged.

John Joseph Bullaro Jr. and Scott R. Sinson of Bullaro & Carton in Chicago filed the suit on behalf of Cottrell.

Edwardsville attorneys Christopher Byron and Christopher Petri represented Cottrell in the recently-dismissed suit in the Southern District of Illinois, where St. Louis attorneys W. Jeffrey Muskopf and John Bradford Goss represented Ellis and his companies.

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