BENTON – In communication with opposing counsel, a prominent Belleville lawyer suggests that anyone asking for consent to remove a medical malpractice lawsuit out of the plaintiff's preferred state court to federal court may be smoking weed.
Tom Keefe responded to a Chicago lawyer’s request earlier this year to take the case to the Southern District of Illinois by asking, “Why would anyone consent to remove a case from St. Clair County?”
According to email communication detailed in court documents, attorney Samantha Unsell of Keefe’s firm had already asked the Chicago lawyer for the weed he must be smoking, and Keefe later asked him if he could have some of it.
Use of recreational marijuana became legal in Illinois on Jan. 1.
Keefe and Unsell didn’t consent to federal jurisdiction but they got it anyway.
On June 11, Senior District Judge Phil Gilbert ruled that he would keep the case if he receives a necessary piece of paper in 14 days.
“This matter is a procedural mess,” he wrote.
Plaintiff Tommy Harris seeks a declaration that insurers Ohio Security and Liberty Mutual owe him more than $2 million on a medical malpractice claim.
Ohio Security removed the suit to district court in January, after Circuit Judge Heinz Rudolf entered judgment for Harris.
The district court clerk assigned Gilbert, whose senior status allows him to accept or reject assignments as he sees fit.
He took this one, finding it raised questions he apparently wanted to answer.
He stated in his order that he wondered how Rudolf entered judgment against parties not before him.
He stated that he wondered how Harris amended his complaint after judgment to add claims against defendants not in the original case.
He wrote that he was hit with consequences of the pandemic and hasn’t been able to discuss his questions with the parties.
Unsell filed a negligence suit for Harris in St. Clair County in 2017, claiming he acquired an infection in treatment at Metro East Dialysis.
Unsell later added Don Durham and his commercial cleaning business, Durham Enterprises, as defendants.
In April 2019, Unsell moved to sever claims against Durham from claims against Metro East Dialysis.
Rudolf granted the motion and assigned a case number to claims against Durham.
Last July, at bench trial, Durham told Rudolf that he wouldn’t mount a defense and that Harris would pursue judgment only against Ohio Security and Liberty Mutual.
Rudolf entered judgment of $2,080,585.95 for Harris, and he adopted facts and conclusions that exposed the insurers to liability.
In December, Unsell amended the complaint to seek coverage from Ohio Security and Liberty Mutual Insurance.
On Jan. 9, Ohio Security counsel Matthew Wolfe of Chicago sent Unsell a message requesting consent to federal jurisdiction.
She replied, “I’ll consider your request if you send me some of the weed you must have been smoking when you asked for my consent.”
Durham’s lawyer, Ted Frapolli of Town and Country, Mo., received a copy of Wolfe’s request and replied that it was amateurish.
Keefe sent Frapolli a message and copied it to others asking, “Can I play in this game? It looks like fun.”
He asked why anyone would consent to removal from St. Clair County and added, “Could I have some of that weed?”
Ohio Security removed the suit to district court on Jan. 16.
On behalf of Liberty Mutual Insurance Company, Wolfe’s colleague Matthew Sitzer moved to dismiss Liberty Mutual Insurance as nonexistent.
Unsell moved to remand the suit to St. Clair County, arguing that a judge who severs a claim more often than not provides for separate trials.
She wrote that Ohio Security improperly removed the suit without consent of Liberty Mutual Insurance and Durham.
Durham joined the motion.
Wolfe replied that Ohio Security didn’t need consent because Liberty Mutual Insurance didn’t exist and Durham wasn’t really a defendant.
He wrote that there was no substantive activity in the original suit in 11 months since Rudolf severed the claims.
“It appears that plaintiff has chosen to proceed solely, or at least primarily, with his new insurance declaratory judgment action in an attempt to recover his alleged damages,” Wolfe wrote.
Gilbert denied the motion to dismiss Liberty Mutual Insurance Company, finding Harris intended to sue it but called it the wrong name.
He granted leave to amend the complaint, and he granted Ohio Security 14 days to file Liberty Mutual Insurance Company’s consent to removal.
He ruled that he would deny the motion to remand upon receiving consent.
“Where claims are severed into separate claims that are completely diverse for trial purposes only, the severed claims are not separately removable,” he wrote.
“However, where severed claims are filed in a new case with a new docket number and have no parties other than those in the severed claims, it is likely the severance commenced a new action.”
Gilbert found he must consider whether Rudolf created different suits, whether his order would result in different judgments, and who was participating.
“The cases are truly independent cases, not simply two trial tracks in the same case,” he wrote.
He found the consent of Durham and his business unnecessary in the absence of an actual controversy between them and Harris.
“In fact, the Durham defendants have taken a dive in order to pave the way for Harris to collect from one or more of their insurers,” he wrote.
“This includes cooperating in an effort to obtain a judgment in state court purportedly binding entities that were not even parties to the litigation.
“In exchange, the Durham defendants essentially received from Harris immunity from collection.”