Fifth District affirms $785K whistleblower verdict in alleged EPA violations case

By Heather Isringhausen Gvillo | May 31, 2017

The Fifth District Appellate Court has affirmed a Madison County jury verdict and Circuit Judge Dennis Ruth’s handling of a truck driver’s whistleblower suit alleging he was terminated after reporting his employer for allegedly dumping toxic substances.

Justice Thomas Welch delivered the Rule 23 decision on May 26 with Justices Randy Moore and John Barberis concurring. 

The appeal followed a one-week trial in Ruth’s court where a jury found in favor of plaintiff Paul Crane Jr., awarding him $785,000.

The jury awarded Crane $160,000 in compensatory damages and $625,000 in punitive damages.

Crane was represented by Lee W. Barron of Alton.

Defendants Midwest Sanitary Service Inc., Nancy Donovan, Bob Evans Sr. and Bob Evans Jr. were represented by John Gilbert of Sandberg Phoenix & von Gontard in Edwardsville.

Donovan and her brother Allen Evans have an ownership in the company. Their uncle, Bob Evans Sr. and his son, Bob Evans Jr., are Midwest employees but have no ownership interest in the company.

The defendants sought a new trial following the verdict after a juror reached out to the defense counsel, suspecting juror misconduct and speculation based upon testimony that had been excluded for improper disclosure.

According to his suit filed in 2014, Crane was hired as a truck driver and trash collector in 1983. He left the company in 2000 but returned in 2005 as a truck driver. He was later promoted to supervisor of the container shop, where containers are cleaned, repaired and painted before being reused.

Backrgound information in the appellate ruling indicates that Crane was suspended twice in 2010 over an altercation with a coworker and for allegedly ordering unauthorized parts.

At trial, Crane objected to testimony about his suspensions. The court allowed evidence stating he was suspended in 2010, but barred evidence regarding the reasons for his suspensions.

On Oct. 7, 2013, Crane made an anonymous call to the Illinois Environmental Protection Agency expressng concerns about the storage of barrels of flammable materials in the container shop.

He allegedly identified himself as a current Midwest employee and spoke with a senior service administrator six or seven times about Midwest.

On Oct. 8, 2013, IEPA inspectors conducted an unannounced inspection of Midwest, advising representatives that a complaint had been made against the company.

Jeff Evans took the inspectors on a tour of the facilities before they met with Bob Evans Jr. and discussed procedures for disposing of residue that remained in containers when they were returned to the container shop.

On Oct. 31, 2013, inspector Chris Cahnovsky returned for a follow-up inspection. During the interviews, he was told that Midwest used water-based paint to paint the containers, which Cahnovsky knew was untrue.

On Nov. 14, 2013, Cahnovsky sent Midwest a notice of 14 violations.

During trial, he testified that “other than spilling hazardous waste directly on the ground, Midwest’s violations were probably the most egregious.”

During cross-examination by the defense, he stated that he had referred Midwest to the Attorney General’s office for prosecution and the case had been accepted.

Crane was terminated less than four hours after Midwest received the notice of violations on Nov. 18, 2013.

The defendants denied that Crane was terminated in retaliation for reporting Midwest to the IEPA or because he was a whistleblower. Instead, the defendants argued that Crane was terminated for other various reasons, “including his bad attitude about having to drive a truck and a customer’s complaint about his conduct on a jobsite.”

The defendants also argued that beginning around September 2013, Midwest was busy with a project referred to as the “Chouteau job.” The job lasted three or four months and contributed about 25 percent of the company’s 2013 revenue.

The company was short on drivers and needed Crane to drive a truck almost every day.

Bob Evans Jr. testified that in late October or early November 2013, he received a voicemail message from a Midwest customer and onsite supervisor of the Chouteau job. The message allegedly explained that Crane had been complaining and the customer was considering using a different company because of the complaints.

Crane was written up over the situation on Nov. 4, 2013.

Crane denied that he had seen the write up or had the opportunity to sign it. He also denied saying anything negative about Midwest or Bob Evans Jr.

Bob Evans Sr. testified that he was involved in the decision to terminate Crane because he had become insubordinate, was not happy with Midwest and wanted to dictate what work he would perform for the company.

Donovan, Allen Evans and Bob Evans Sr. testified that they made the decision to terminate the plaintiff before Nov. 18, and they did not know he was the one who had complained to the IEPA until after his termination.

The defendants acknowledged that Crane had spoken to them about environmental concerns and the procedure for disposing of waste that remained in containers when they were returned to Midwest. They also acknowledged that no other employee had complained to them.

Allen Evans acknowledged that he had suspected that Crane was the one who had reported Midwest to the IEPA before he was terminated.

Midwest often included an “inspirational note” or “life lesson” with employee’s paychecks. The plaintiff’s paycheck four days after his termination included the note, “Think before you speak. Words can get you into trouble much easier than they can get you out of it.”

On the Friday before trial, Crane’s counsel sought to exclude the testimony of seven defense witnesses who were not identified in the defendants’ interrogatory answers, including the customer who left the message. The trial court barred the testimonies. The defendants sought reconsideration, which was denied.

Crane’s counsel also sought to exclude testimony about the voicemail message from the Chouteau supervisor, arguing it was hearsay. The defendants opposed the motion. Ruth allowed the testimony but provided limiting instructions.

The defendants objected to a missing evidence instruction given to the jury, arguing it lacked evidentiary support in that the only evidence of spoliation was Bob Evans Jr.’s testimony that he deleted the voicemail message before Midwest received the litigation hold letter. The instruction was still given over the defendant’s objection.

The defendants objected to photos of containers with hazardous waste stickers on the basis of relevance and undue prejudice.

The defendants also objected to the introduction of evidence about Bob Evans Sr. and Bob Evans Jr.’s compensation, which was permitted.

Ultimately, the jury found in favor of Crane.

During the week after the trial ended, one of the jurors went to Midwest and asked to speak to Donovan, stating that she believed the defendants should challenge the verdict.

The defendants filed a motion for a new trial arguing that they learned of juror misconduct warranting a new trial after the judgment was entered, the court erred in barring defense witnesses’ testimony based on an alleged discovery violation, the court erred in giving a limiting instruction and a missing evidence instruction, the court abused its discretion in admitting evidence about Midwest’s environmental violations, the court abused its discretion in barring evidence of the reasons for the plaintiff’s prior suspensions, the court abused its discretion in allowing evidence of the individual defendants’ compensation, and the verdict was against the manifest weight of the evidence.

Ruth denied the motion, and the defendants appealed.

Appellate conclusion

The appellate court held that the defendants failed to identify the witnesses at issue in their interrogatory answers and that the court properly barred the witnesses’ testimony because the defendants failed to comply with the Supreme Court’s discovery rules.

As for the defendant’s request for a new trial based upon juror misconduct, the defendants submitted an affidavit by the juror who contacted them. The affidavit stated that the jury had concluded that the voicemail complaining of Crane’s behavior must have been fabricated because the customer never testified at trial.

Ruth concluded, “It appears by [the juror’s] own affidavit that she put this speculation out there, and by her own words it didn’t influence the verdict.

“[W]hat was the extraneous information that was introduced that may have influenced a verdict. I don’t see it.

“[T]o the extent that she did introduce this information that was clearly speculative, there’s no indication by her own words that it in any way influenced the verdict, so I’m denying the motion for a new trial on that basis,” Ruth held.

The appellate court agreed.

“Generally, a verdict may not be impeached by testimony or affidavits relating to the motive, method, and process of jury deliberations,” Welch wrote.

The appellate court concluded that the trial court did not abuse its discretion in concluding “jurors were not influenced and prejudiced by the juror misconduct to such an extent that they would not, or could not, be fair and impartial.”

In regards to the defendants’ arguments over jury instructions, the appellate court stated that the defendants forfeited any objection to the language of the instruction when they failed to offer an alternate instruction.

Addressing the defendants’ argument regarding the reasons Crane was suspended, the appellate court concluded that Crane’s termination was unrelated to his suspensions years earlier.

The appellate court also concluded that the photos the defendants’ objected to “merely provided context for the witnesses’ testimony, and the defendants were not substantially prejudiced by the admission of the photos.”

In regards to the defendants’ objection to evidence of individual defendants’ salaries, the appellate court held that “a party may question a witness’s credibility by demonstrating the witness’s interest in the outcome.”

“The jury easily could have found that Bob Sr. and Bob Jr. had an interest in the jury finding in favor of Midwest so that they could continue receiving such salaries,” Welch wrote. “The trial court exercised its discretion in ruling that the jury should hear evidence of Bob Sr. and Bob Jr.’s compensation on the issue of their bias or motive to lie, and that determination was not unreasonable under the circumstances.”

Madison County Circuit Court case number 14-L-501

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