Madison - St. Clair Record

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Agreed order in trooper wrongful death case stipulates counsel will proceed in civil fashion

By The Madison County Record | Dec 18, 2015


HILLSBORO – Swansea attorney Tom Keefe signed an order on Dec. 14, agreeing to not resort to snide, insulting, derogatory, uncivil or harassing comments in Montgomery County circuit court.

Keefe withdraws an allegation that lawyers for DOT Foods and a trucking subsidiary deserve sanctions for misconduct at a deposition of a company witness.

He concedes that his client Sarah Deatherage must answer questions about dating and social life.

He agrees not to disparage opposing counsel in email to lawyers having no connection with the case, as he did to Bill Knapp.

The order binds defense counsel too, but it specifies that they signed it in reliance on Keefe’s representation that he will proceed in civil fashion.

Circuit judge Douglas Jarman prepared the order rather than hold a hearing on disputes that had reached a boiling point.

Keefe filed the suit in 2013, in Madison County circuit court.

He sought damages from DOT Foods, a private company in Mount Sterling, for the death of state trooper Kyle Deatherage.

He also sought damages from DOT Transportation and driver Johnny Felton.

Defendants moved to transfer, arguing the suit didn’t connect to Madison County.

Circuit judge Dennis Ruth denied the motion, but Fifth District appellate judges reversed him in September 2014.

They ruled that judges could hear the case in Brown, Sangamon, or Montgomery counties, but not Madison.

In October 2014, Keefe and Deatherage held a press conference to suggest that Supreme Court Justice Lloyd Karmeier manipulated the Fifth District as a favor to DOT Foods owners.

The event, which was held weeks before Karmeier’s retention election, happened at around the same time other lawyers bought television time to accuse him of favoring campaign contributors. Keefe also paid for anti-Karmeier robo calls that Deatherage recorded.

Voters retained Karmeier.

Deatherage then chose Montgomery County over Brown and Sangamon.

Next, she testified at the Capitol about the injustice of the transfer.

Defendants deposed her in July, and one of them asked about dating.

Keefe ordered her not to answer.

Defendants moved to compel a second deposition, arguing that the question related to her claim of grief and mental suffering.

Illinois did not allow such a claim in a wrongful death suit until 2007, and neither side in Hillsboro has brought forth cases that shed light on its meaning.

In September, Jarman found the question relevant and ordered another deposition.

Keefe moved for reconsideration.

Then he turned up the temperature by moving to sanction DOT Foods counsel Don Devitt and DOT Transportation counsel Don Tracy.

Keefe claimed they took a company witness out of the room for 20 minutes and brought him back to change his testimony.

Devitt and Tracy answered with a motion for a protective order, writing that they had refrained from bringing Keefe’s conduct to the court’s attention.

They wrote that his motion for sanctions compelled them to disclose transcripts and emails showing “efforts to intimidate defendants and their attorneys.”

They unloaded months of bitter messages including a July 18 tirade against Tracy, a member of the family that owns DOT Foods.

Keefe had just learned that DOT Transportation relieved its lawyer of duties, and he asked if that meant Tracy would actually try the case.

“I, for one, will waive my fee if you will,” Keefe wrote.

“I will work the trial date around your Illinois Gaming Board duties and your cocktail hours with the Governor. Are you a member of the Wine Club?

“Your company’s behavior seems to be precisely the kind of chicanery your pal Bruce is trying to protect.

“I think with more digging we could make this a George Ryan redux – a high level appointment of the Governor representing and is a part owner of a company whose corrupt safety practices killed a state trooper and that same company hires and pays the lawyer for the poor driver from Georgia and gets him to plead guilty to a felony to avoid a high profile trial and a public viewing of the company’s dirty laundry?”

Devitt and Tracy concluded each section of the motion by writing, “This court should not tolerate this conduct.”

They also responded to Keefe’s motion for sanctions, and he replied by calling their conduct reprehensible, shameful, and unethical.

He accused them of leaking to the Record.

With all these disputes ripe for hot debate in Jarman’s court on Monday, Dec. 14, the temperature suddenly dropped.

On Friday, Dec. 11, lawyer Louis DePaepe of Taylorville entered an appearance as Keefe’s co counsel.

By Monday morning, all parties had agreed to cancel the hearing.

Later that day, Jarman filed an agreed order bearing his signature and those of Keefe, DePaepe, Devitt, and Knapp’s partner Donald Ohl.

It provided that Deatherage withdrew the motion for reconsideration of a second deposition and the motion for sanctions.

It provided that DOT Foods and DOT Transportation withdrew their motion for protective order, “in reliance on this order and plaintiff’s representation by co-counsel, Louis DePaepe, and on the agreement and representation by counsel Thomas Keefe, that said counsel shall be dedicated to proceeding with discovery in civil fashion and without resort to any comments that would be construed by this Court to be snide, insulting, derogatory, uncivil or harassing.”

The agreed order also banned press conferences, robocalls, blast emails, legislative appearances, or media interviews without his leave.

It banned disparaging remarks to parties having no connection to the case.

It ordered prompt discussion of discovery disputes or accusations of misconduct prior to the filing of any motion for sanctions.

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Organizations in this Story

Montgomery CountyKnapp, Ohl and GreenKeefe & Keefe, P.C.Dot FoodsMadison County