A man awarded $1.2 million in a suit alleging he fell due to a faulty apartment balcony railing sought sanctions against the defendants for allegedly repeatedly making witnesses unavailable.
The jury entered a verdict in favor of plaintiff John Zanger on April 2 in Circuit Judge Vincent Lopinot's courtroom, awarding him a total of $1,205,921.
Zanger was awarded $515,920 for past medical expenses, $275,000 for loss of a normal life, $350,000 for pain and suffering, $65,000 for future medical expenses and $1 for disfigurement resulting from the injury.
Jurors attributed 25 percent liability to defendant Willow Park Apartments LLC, 25 percent liability to Willow Run Apartments LLC and 50 percent liability to Thiemann Real Estate LLC.
Zanger was represented at trial by Ellen Burford of the Burford Law Office in Granite City and Goldenberg Heller & Antognoli PC in Edwardsville.
The defendants were represented by Brown & James PC in St. Louis.
Willow Run Apartments and Thiemann Real Estate filed a motion for directed verdict at the close of the plaintiff’s case on March 29.
They argued that the “evidence adduced at trial, particularly the testimony of Thiemann President, Daniel Mauch, clearly demonstrate that Willow Run Apartments and Thiemann Real Estate were not the owners of the premises where Plaintiff was injured, at the time of his injury.”
Zanger filed an amended motion for sanctions against the defendants on March 26 at the start of trial. He also sought to strike and bar Dr. Todd Stewart as an expert and sought reconsideration of the court’s ruling prohibiting Dr. Matthew Gornet from testifying about Zanger’s March 19 medical visit.
In regards to his request for sanctions, Zanger argues that the case was originally set for trial in February 2018 before it was continued, leaving Mauch unavailable for trial. Mauch is the corporate representative for all three defendants.
“Since the entry of Judge [Chris] Kolker’s order setting this matter for trial, Defendants have stopped at nothing to: delay this matter from proceeding to trial on every occasion they could manage; find ways to make witnesses ‘unavailable’; and undermine plaintiff’s ability to present this case,” the motion stated.
Zanger argued that the defendants sought continuance of the Feb. 5 trial date on Nov. 16, 2017. The case was reset for trial on March 26.
He alleged that since the case was reset for trial, the parties have been before the court for hearings four additional times: Feb. 21, Feb. 27, March 9 and March 19.
“At none of these hearings did Defendants indicate that Daniel Mauch would be unavailable for trial,” the motion stated.
On March 21, Zanger served the defendants with a notice compelling Mauch’s appearance at trial. At a pretrial conference the following day, the defendants still failed to indicate that Mauch would be unavailable for trial.
On the second day of pretrial conferences, the defendants informed the plaintiff that Mauch would not be appearing for trial because he was out of the country in Costa Rica. His reason for being out of the country was not provided.
“Moreover, in another stunning move, Defendants informed this court and plaintiff that they were designating someone new, either Ryan Werkmeister or Jamie Anderson, as their corporate representative for this trial. Plaintiff expressed much shock at this occurrence,” the motion stated.
Zanger argued that Mauch’s absence severely prejudiced him, “as he will no longer be able to present the case he wishes at trial.”
Zanger added that reading Mauch’s August 2017 discovery deposition as evidence is not sufficient, because the plaintiff learned considerable information regarding the defendants and the apartment complex since the deposition was taken. Zanger allegedly planned to elicit admissions from Mauch on cross examinations as an adverse witness in his case in chief.
“Because all three Defendants inexplicably will not have their one corporate representative available for trial, they should be sanctioned,” the motion stated.
Zanger also argued that the defendants’ “scheme of delay, ‘unavailability,’ and undermining plaintiff is even more illustrated” in how they have acted in retaining Stewart.
He asserted that the defendants’ trial continuance was primarily granted because the defendants claimed they did not know who they would designate as their expert witness.
Despite several deadlines to retain a medical examiner, the defendants did not designate an expert witness until Feb. 26, “almost a week after being admonished by the Court that such a Motion should be filed immediately.”
The defendants argued that they took so long to retain an expert because the plaintiff’s medical records were so “voluminous” that an expert would not be able to review the records in time.
The defendants’ motion was granted and they were ordered to schedule a medical examination within a week.
"Even after being given leave to conduct a medical examination of Plaintiff out of time, Defendants continued to balk at when the examination had to take place," the motion stated. "It was Defendants' position that the medical examination only need to be scheduled, not take place within seven days of Judge Kolker's Order.
"Plaintiff indicated that such an interpretation was absurd, as under Defendants' interpretation, they could have scheduled the medical examination for a week before trial, and then produce their medical examiner's report on the first day of trial."
The examination was conducted March 6, and Stewart completed his report the same day.
The plaintiff argued that the defendants sought another trial continuance on March 9 and failed to mention that Stewart had completed his report and would be available to give a discovery deposition.
The defendants later produced the report on March 13.
“This was an intentional move to prevent plaintiff from being able to conduct a discovery deposition of Dr. Stewart,” Zanger argued.
After receiving the report, the plaintiff sought a videotape discovery deposition for March 27, the second day of trial, but was told that the expert was “unavailable” until the date he was scheduled for his evidence deposition.
Zanger saw Gornet, his treating physician, on March 19, but the Court granted the defendants’ motion to prohibit witnesses from testifying about the visit because Stewart was unavailable to review the records prior to trial.
“However, Defendants pivoted on their argument and said they should be allowed to use the CT scan and record if Dr. Stewart concluded that the information was useful to them,” the motion stated. “The point remains though: either Dr. Stewart is available or he is not. Defendants’ track record for truthfulness is rather unfavorable at this point in litigation.”
Zanger filed his original complaint in St. Clair County against Willow Park Apartments on May 18, 2015, through attorney Brian Wendler of Edwardsville before it was removed to federal court in July 2015.
In his complaint, Zanger alleged he was a tenant at the apartment complex located at 1241 Roger Ave. in Swansea when he fell due to a defective balcony railing on May 3, 2015.
As a result, Zanger alleged he suffered injuries to his spine, head, left leg and left shoulder.
The case was voluntarily dismissed Aug. 26, 2015.
Zanger refiled his complaint in St. Clair County on Dec. 7, 2015, against Jamie Anderson and Dwayne Ewing, employees of the apartment complex.
Zanger claimed Anderson and Ewing’s duties included fielding and receiving complaints of unsafe building conditions, observing unsafe building conditions, reporting for repairs and managing the premises to prevent the existence of unsafe building conditions. The complaint stated that all duties were to be fulfilled to protect the safety of tenants and guests and the apartment complex.
The plaintiff amended his complaint to add Willow Park Apartments, Willow Run Apartments, Thiemann Real Estate, and Nathan Loecher, individually and doing business as Sundecker Builders, as defendants in the case.
Zanger alleged the defendants failed to provide a reasonably safe balcony railing; failed to provide adequate balcony railings; failed to provide adequate maintenance, repair or inspection services; failed to observe and arrange for repairs of obvious signs of unsafe decks and railings; failed to arrange for repairs of the unsafe decks and railings; and failed to warn of the dangerous conditions.
However, in their second amended answer to the complaint on March 20, Willow Park Apartments, Willow Run Apartments and Thiemann Real Estate argued that the plaintiff caused his own injuries.
They argued that the plaintiff negligently attempted to repair the balcony or directed others to repair the balcony by striking it with an object, which contributed to the collapse of the balcony’s railing.
They also argued that third parties negligently installed the railing by failing to properly secure it to the building’s brick exterior with an appropriate fastener.
Only Willow Park Apartments, Willow Run Apartments and Thiemann Real Estate remained as defendants when the case went to trial.
St. Clair County Circuit Court case number 15-L-688