Fifth District: Lopinot should not have granted plaintiff new trial in Caterpillar defense verdict

By Record News | Jul 25, 2017

MOUNT VERNON – St. Clair County Circuit Judge Vincent Lopinot, who concluded post-trial that his errors spoiled an injury trial against heavy equipment maker Caterpillar, committed no error at all, Fifth District appellate judges ruled on July 21. 

They found that no reasonable person could agree with Lopinot’s reasons for awarding a new trial to plaintiff Chuck Wehmeyer. 

Lopinot entered judgment on a jury verdict for Caterpillar in 2015, but granted Wehmeyer a new trial last year. 

He ruled that he improperly instructed jurors on causation and improperly allowed evidence of discord in Wehmeyer’s family. 

Fifth District judges found no mistake at trial and a big mistake after it. 

Justice Randy Moore wrote that on causation, Lopinot “chose not to explain how he had erred.” 

“Nevertheless, we will, in the interests of justice, consider the various suggestions of error of the plaintiff,” Moore wrote. 

Moore rejected them all. 

In regard to family discord, Moore wrote that none of the testimony necessarily put Wehmeyer in a negative light. 

He wrote that none of it suggested that Wehmeyer caused any discord, “rather than being the victim of bullying by various family members throughout his life.” 

Justices John Barberis and Thomas Welch concurred. 

Their decision directly quoted conferences that Lopinot held outside the presence of the jury, but it didn’t identify the lawyers by name. 

Transcripts remained in chambers at presstime. 

The docket shows Michael Todd and Roy Dripps represented Wehmeyer. 

Lisa Larkin, of William Venker Sanders in St. Louis, acted as lead counsel for Caterpillar in association with Steven Sanders of that firm. 

Clyde Kuehn of Belleville also represented Caterpillar. 

Wehmeyer suffered injuries in 2011, at a construction site. 

As he worked at the top of a Caterpillar lift, it tipped and threw him to a platform 20 feet below. 

In 2013, he sued Caterpillar and lift operator Robert Duff for $2.5 million. 

Wehmeyer named Duff’s employer, Ervin Yoder, as a defendant, but didn’t serve the complaint on him. 

The action caught up with Yoder in 2014, when Caterpillar filed a counterclaim for contribution against him. 

As Lopinot prepared to start trial in October 2015, Wehmeyer and Duff moved for approval of a settlement. 

Caterpillar objected, claiming Duff wasn’t served. 

Counsel for Wehemeyer said Duff was served and Yoder wasn’t. 

Lopinot approved the settlement. 

At trial, according to Moore, lay witnesses and experts presented “voluminous conflicting evidence” about the responsibility of Caterpillar, Duff, Yoder, and the company that rented the lift to Yoder. 

For Wehmeyer, neuropsychologist Lauren Schwarz testified by video deposition that he experienced tension in relationships with his father and stepmother. 

Schwarz said he told her they wanted to pursue guardianship of him, because they were trying to get his money. 

Rehabilitation counselor Betty Bockhorst testified by video deposition that Wehmeyer’s wife Peggy had terminal cancer, and her death would devastate him. 

She said she knew of no one who would fill the void Peggy would leave in terms of support, guidance and assistance. 

On cross examination, she said she didn’t know him before the accident. 

Bockhorst said he told her he didn’t want to be the person he was before the accident. 

She said she learned in their first session that he was raised in a dysfunctional family and his father physically abused him. Relations with his stepmother got really bad after the accident. 

She said his father and stepmother excluded Peggy from family gatherings. 

She read aloud from a list Wehmeyer had written of his children, “Supposedly have another daughter here in Hermann, Missouri.” 

“Never knew about her or met her,” Bockhorst read. “Supposedly called my brother Mike after she was 18. 

“Said I may be her dad. Don’t know, don’t care. When I talk to them all they want is money.” 

Peggy Wehmeyer testified that her husband had eight siblings and half siblings. 

She said the way they treated him upset her. 

She said that when they excluded her from functions, he stopped attending. 

On a Friday near the end of trial, Caterpillar complained that Wehmeyer proposed some instructions that named Yoder as a defendant and some that did not. 

Wehmeyer needed Yoder as a defendant for purposes of his causation theory. 

In a conference, counsel for Wehmeyer said Caterpillar served a summons on Yoder with its counterclaim. 

He said a service document showed a complaint was served with the summons. 

Caterpillar counsel said the summons had the third party complaint attached. 

Lopinot asked how counsel knew that and counsel said, “We are the ones that employed the special process server.” 

Caterpillar counsel said, “We didn’t give him a copy of the complaint. We gave him our third contribution complaint.” 

Wehmeyer counsel said the word “complaint” meant the complaint in the case. 

Lopinot said, “Probably all the summonses that are ever issued in any courthouse say that.” 

He asked Wehmeyer counsel if he ever served Yoder, and counsel said no. 

Lopinot said he would not include Yoder on the instructions. 

Wehmeyer counsel objected. 

Lopinot told him that if he came up with any indication that Yoder was served, they would deal with it the following Monday. 

Wehmeyer counsel then opposed two instructions that Caterpillar had proposed on proximate cause. 

He said that subject to his objection to Yoder’s exclusion, “if Yoder is not a party to the case then I would agree there is evidence of sole proximate cause.” 

Lopinot asked if one of Caterpillar’s instructions was more appropriate than the other, and Wehmeyer counsel said yes. 

Lopinot approved that one, which provided that if the sole proximate cause of an injury was the conduct of some person other than the defendant, “then your verdict should be for the defendant.”  

Monday morning, Caterpillar moved to dismiss its counterclaim against Yoder and Wehmeyer moved for reconsideration of Friday’s decisions. 

Wehmeyer counsel told Lopinot that Caterpillar’s counterclaim put Yoder on sufficient notice of a claim against him. 

Caterpillar counsel said, “Nothing has changed since Friday.” 

Counsel said Caterpillar would have asked different questions had it known Yoder would be treated as a direct defendant. 

Lopinot denied reconsideration. 

In closing argument, Caterpillar counsel stated three times that Yoder’s failure to train Duff was the sole proximate cause of the accident. 

Jurors reached a defense verdict in less than two hours. 

Lopinot entered judgment on Nov. 12, 2015. 

On Dec. 2, Wehmeyer moved for a new trial. 

Lopinot held a hearing on Feb. 9, 2016, and granted a new trial on Feb. 17. 

He concluded that he committed error by giving the proximate cause instruction. 

He found he committed an error by allowing evidence of family discord without evidence that it caused a diagnosable condition before the accident. 

Caterpillar appealed to the Fifth District, where judges found the mystery of Yoder’s status easy to solve. 

Moore wrote that Lopinot properly concluded at trial that Yoder was not a party defendant for purposes of the instruction. 

He wrote that, “where there had been no change in the facts before the trial court other than the fact that the plaintiff had not succeeded at trial, no reasonable person would agree with a decision by Judge Lopinot to suddenly reverse his position, find that Yoder was a party defendant for purposes of the instruction and verdict forms, and order a new trial.” 

Moore rejected Wehmeyer’s argument that the instruction is improper if a defendant alleges involvement of multiple other causes or persons. 

He wrote that a defendant might allege proximate causes alone or combined. 

He wrote that, “as long as the sole proximate cause lies elsewhere, it should be of no consequence whether it was one third party other than that defendant, or more than one third party other than that defendant, that constituted the sole proximate cause of the injuries.” 

As for family discord, Moore wrote that Lopinot excluded a large amount of evidence that Caterpillar wished to introduce. 

He wrote that according to Caterpillar, the jury could not properly assess damages for loss of normal life without knowing what his life was like before the accident. 

He wrote that the evidence was adduced over the course of a trial lasting six days. 

“In terms of both quantity and quality of evidence, it was a mere smattering of the total evidence considered by the jury,” he wrote.   

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