Sandberg Phoenix, attorneys argue legal malpractice suit over $785K verdict is deficient

By Heather Isringhausen Gvillo | Oct 25, 2018


An Edwardsville law firm and two attorneys seek to dismiss a former client’s legal malpractice lawsuit alleging negligent representation resulted in a $785,000 jury verdict in Madison County.

Midwest Sanitary Service, Nancy Donovan and Bob Evans Sr. filed the complaint on June 19 against Sandberg Phoenix & von Gontard PC, John Gilbert and Narcisa Symank. They seek $1,450,095.03 in damages, plus costs. 

According to the complaint, Sandberg Phoenix & von Gontard was retained as counsel for the plaintiffs on April 20, 2015, in a trial where former employee Paul Crane Jr. alleged he was wrongfully terminated.

Crane, who worked as a truck driver for the Wood River company, filed his suit in March 2014 (14-L-501). He claimed he observed Midwest employees engaging in “unauthorized and illegal dumping and/or storage of toxic waste and other substances hazardous to the health and well-being of the public.”

On Nov. 18, 2015, the Environmental Protection Agency sent Midwest a letter noting the “numerous environmental violations” after Crane reported photos of the alleged violations to state regulators. Crane was terminated the same day.

Sandberg Phoenix took the defense over from the plaintiffs’ prior defense counsel in the wrongful termination case.

The one-week trial in Madison County Circuit Judge Dennis Ruth’s court ended on Nov. 17, 2015, after jurors returned a verdict awarding Crane $160,000 in compensatory damages and $625,000 in punitive damages.

Then on July 15, 2016, Crane was awarded $225,000 for his attorney fees.

The plaintiffs in this case allege Gilbert responded in an email, “They will get nothing, of course, when the appellate court overturns the judgment.”

Donovan, Evans and Midwest Sanitary Service claim Gilbert reassured them that the appellate court would rectify “this miscarriage of justice.”

According to the Rule 23 decision by appellate justice Thomas Welch, the defendants in the wrongful termination case sought a new trial after a juror reached out to Midwest and the defendants’ counsel, suspecting juror misconduct and speculation based upon a testimony that had been excluded for improper disclosure.

According to the juror’s affidavit, the jury had concluded that a voicemail complaining of Crane’s behavior must have been fabricated because the customer never testified at trial.

Ruth denied the motion. Midwest, Donovan and Evans appealed.

However, the Fifth District Appellate Court affirmed the jury’s verdict and Ruth’s handling of the trial on May 26, 2017.

“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 their malpractice complaint against Sandberg Phoenix, the plaintiffs in this case allege their counsel failed to list all witnesses intended to be called at trial, resulting in six witnesses for Midwest being barred.

They allege the firm failed to identify a voicemail message from a Midwest customer regarding a lost or destroyed document in response to a request to produce, resulting in a “missing evidence” instruction given to the jury. They also allege the defendants failed to object to jury instructions.

Then while the case was pending in the appellate court, the plaintiffs claim the defendants failed and refused to discuss potential settlement with opposing counsel. Sandberg Phoenix allegedly simply responded with “No” and failed to inform or discuss with their client.

The plaintiffs allege the defendants were paid $218,932.03 in attorney's fees and costs. 

Sandberg Phoenix, Gilbert and Symank filed a motion to dismiss and strike on Oct. 3 through attorney Gary Meadows of HeplerBroom in Edwardsville.

They argue that the complaint is deficient in several ways.

“First, in order to state a cause of action for legal malpractice, the complaint must set forth the facts from the underlying case to establish that Midwest and its officers would have prevailed on the claims made by its employees absent the alleged malpractice,” the motion states.

“Second, as a part of the complaint, Midwest is improperly trying to recoup from the defendants the punitive damages portion of the underlying jury verdict, which is not permitted under Illinois law,” it continues.

The motion states that punitive damages are intended to punish and deter the offender from future acts of similar wrongdoing and “is not served by allowing the burden of those punitive damages to be shifted to the attorneys.”

As for the last deficiency, the defendants argue that the plaintiffs have wrongfully joined in one cause of action against the defendants.

“Given the facts of the instant case, this joinder of cases may or may not ultimately cause any complications. With respect to this complaint, however, it is improper particularly as it relates to the punitive damages, as those were only awarded against Midwest,” the motion states.

The plaintiffs filed a response to the defendants’ motion to dismiss on Oct. 15 through attorney George Ripplinger of Ripplinger & Zimmer LLC in Belleville, arguing that their malpractice claims are sufficient.

“The alleged errors at trial are significant enough to change the final result. If that is not enough, plaintiff’s (sic) allege that defendants failed to inform them of settlement offers and overtures and rejected them without informing their clients.

“Clearly, a lawyer has the duty to inform his client of any offers of settlement or overtures to discuss settlement and the further duty to advise them of the merits of such offers. Failure to do so inform the client is a breach of that duty,” the response states.

The plaintiffs also argue that punitive damages are recoverable from the defendants.

They argue that they are not limited in a legal malpractice case “from seeking reimbursement from the lawyer for punitive damages that were awarded against the plaintiffs by reason of the lawyer’s malpractice in the underlying case.”

“The plaintiffs in this case are not seeking to obtain punitive damages that they allege defendants should have obtained for them in the underlying case,” the response states. “They are seeking to be compensated for their own actual damages that, but for the defendants’ negligence, they would not have had to pay.

“These are entirely compensatory damages. The fact that the underlying jury’s award consisted of some punitive damages does not change the fact that the plaintiffs here were required to pay, and have lost these funds, due to the defendant’s negligence.”

Madison County Circuit Court case number 18-L-811

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Organizations in this Story

HeplerBroom Ripplinger & Zimmer Sandberg Phoenix & Von Gontard PC

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