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Yandle postpones trial to give defense ‘final opportunity’ to produce proper expert opinion

By Record News | Nov 6, 2017

BENTON – U.S. District Judge Staci Yandle postponed trial against two paving contractors on Nov. 2, after her rejection of opinions from former district judge Patrick Murphy left the defense without an expert. 

She vacated a Nov. 13 trial date in a suit against E. T. Simonds Construction and Southern Illinois Asphalt, and set trial March 19. 

“Defendants will be given one final opportunity to provide proper expert opinions on damages,” she wrote in bold face. 

Yandle gave them 30 days to submit a supplemental report. 

She struck Murphy’s report on Oct. 24, finding he didn’t explain the methodology or principles that supported his conclusions. 

She wrote that he offered opinion but no analysis, and that many of his opinions were inadmissible legal conclusions. 

Lead plaintiff Liliya Turubchuk claims the paving contractors concealed available insurance when her family settled a suit over an accident. 

The accident happened 12 years ago, on Interstate 24 in Illinois. 

Minor child Aleksey Turubchuk died, and family members suffered injuries. 

The family sued the contractors in their home state, Washington, alleging negligence in a paving project. 

The family demanded and received $1 million in 2007, after defense counsel identified that amount as the limit of the policy that covered the project. 

The family sued the contractors again in 2012, in Southern Illinois district court. 

The family claimed they found out that each contractor carried its own policies with coverage for accidents like theirs. 

The family sought the difference between the settlement and the amount they would have recovered if they had known about other policies. 

This year, as trial approached, Murphy valued the Washington case at $300,000. 

In court papers, he wrote that defendants weren’t liable because signs and markings were proper. He also wrote that Nemtsova admitted in Washington that she caused the accident. 

He wrote that if insurers had backed the contractors under their own policies, the case would not have settled for anything beyond the cost to defend it. 

Turubchuk moved to strike Murphy’s report, and Yandle granted the motion. 

The contractors moved for reconsideration, pleading that Yandle misapprehended the facts and basis for Murphy’s analysis. 

She denied the motion, postponed trial, and echoed an unpleasant verb. 

“Throughout the pendency of this litigation, defense counsel have ‘misapprehended’ the law and relevant facts of this case, resolute to litigate the merits of the underlying negligence action rather than the pending fraud and misrepresentation claims,” she wrote. 

She wrote that they didn’t support their position by referencing portions of Murphy’s report or deposition that elucidated his methodology and process. 

She wrote that they failed to address his legal conclusions. 

“Without question, Murphy is qualified to give properly based expert opinions,” she wrote. 

“But defendants will not be permitted to elicit judicial opinions or legal conclusions from the witness stand.” 

She set a Dec. 2 deadline for a supplemental report. 

She wrote that Turubchuk could challenge it 30 days after receiving it. 

Jamie Boock, Matthew Rossiter, and Timothy Lemen, all of Rossiter and Boock in Clayton, Missouri, represent Turubchuk. 

William Knapp and Mark Dinsmore, both of Knapp Ohl Green in Edwardsville, represent E. T. Simonds Construction. 

Charles Schmidt and Megan Orso, both of Carbondale, represent Southern Illinois Asphalt. 

Murphy retired from the bench in 2013, and returned to private practice with wife Patricia Murphy.    

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U.S. District Court for the Southern District of Illinois