A St. Louis law firm and two attorneys argue that Madison County Circuit Judge David Dugan erred when he denied their motion to dismiss a legal malpractice suit alleging negligent representation resulted in a $785,000 jury verdict.
A motion hearing has been set for Aug. 1 for a motion to reconsider filed by defendants Sandberg Phoenix & von Gontard and attorneys John Gilbert and Narcissa Symank.
The defendants filed the motion to reconsider on June 24 through attorney Gary Meadows of HeplerBroom in Edwardsville, arguing that the court misinterpreted relevant case law when denying their motion to dismiss and strike the amended complaint.
The defendants filed their motion to dismiss and strike on April 12 in response to an amended complaint filed by plaintiffs Midwest Sanitary Service, Nancy Donovan and Bob Evans Sr.
The defendants made three arguments in their motion. They argued that the plaintiffs failed to allege that the alleged negligence caused them to lose a defense that would have been successful.
They also argued that the plaintiffs’ attempt to recoup punitive damages of the underlying jury verdict is improper.
Further, the defendants argue that counts I and II of the amended complaint are duplicative as they both allege negligence and seek to recover $225,000 in attorney’s fees for former Midwest Sanitary Service employee Paul Crane Jr. and $218,932 in defense costs paid to Sandberg Phoenix.
The motion was denied on June 3. The defendants argue that Dugan rejected their first two arguments “while not apparently ruling on the third argument.”
The defendants reiterate in their motion to reconsider that the plaintiffs fail to show what specific defense to Crane’s claims were lost and would have been successful absent the alleged negligence.
They also argue that Dugan erred in denying the motion to dismiss because recovery of punitive damages or prohibited in legal malpractice cases.
They assert that the amended complaint “alleges only that the verdict would have been lesser or none, seemingly allowing the jury in this case a roving commission to speculate about what amount of punitive damages the original jury would have awarded had it heard additional evidence at the trial.”
“As noted by this court in its June 3 decision, it is ‘an invitation for speculation to ask a jury to decide whether the evidence, had it not been excluded, would have led the first jury to award a lesser or no amount in punitive damages.’ Yet that speculation is precisely what this court’s decision is endorsing,” the motion states.
The defendants argue that Dugan’s order denying their motion to dismiss comes with a “vast societal cost.”
“[W]hile plaintiffs’ attorneys will never be exposed to lost punitive damage, defense attorneys will hereafter have potentially unlimited liability for lost punitive damages to its clients.
“For defense lawyers, this will ‘result in increased professional liability insurance premiums or denials of coverage’ altogether.
“This may also effectively preclude or deter many lawyers from undertaking representation of defendants in controversial cases and ‘make it more difficult for consumers to obtain legal services,’’ the motion states.
According to the amended complaint, the plaintiffs claim the defendants were retained as counsel on April 20, 205 in a trial where Crane alleged he was wrongfully terminated.
Crane filed his suit in March 2014 (14-L-501). He alleged he worked as a truck driver for the Wood River company. 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 Crane’s case.
The trial began Nov. 9, 2015.
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 for a total of $785,000. Evans and Donovan were only found to be liable for compensatory 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 sought a new trial following the verdict 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 complaint against Sandberg Phoenix, the plaintiffs allege their counsel failed to list all witnesses intended to be called at trial, resulting in six witnesses for defense being barred.
They allege the defendants failed to identify a voicemail recorded 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. The defendants allegedly simply responded with “No” and failed to discuss or even inform their client.
The plaintiffs are represented by Ripplinger & Zimmer LLC in Belleville.
Madison County Circuit Court case number 18-L-811