BENTON – Thomas Perko of Madison County changed lawyers too late to gather evidence for a slip and fall suit against Love’s Travel Stop in Hamel, U.S. Magistrate Judge Reona Daly ruled on Oct. 22.
Daly denied a motion to allow seven months of discovery in an action that could have gone to trial by now if Perko’s first lawyer hadn’t withdrawn.
“There is no precedent for finding a change in counsel constitutes good cause to reopen the discovery period,” Daly wrote.
She quoted Seventh Circuit precedent that, “Shortcomings in counsel’s work come to rest with the party represented.”
Attorney Samuel Mormino of Alton sued Love’s for Perko in Madison County circuit court in June 2020.
The suit claimed Perko fell “when he encountered a large puddle of an oily and greasy substance that was adjacent to the pump.”
Love’s was accused of failing to barricade or block the passageway.
Perko alleged injuries to his torso, hand, and wrist.
Love’s retained William Brasher of St. Louis, who removed the complaint to district court on the basis of diverse citizenship as an Oklahoma corporation.
Brasher answered the complaint in August and filed affirmative defenses.
In a single sentence, Mormino denied all allegations in the affirmative defenses.
Daly set trial this Sept. 28, more than a year away at the time.
Last September, she adopted a joint proposal to close discovery this April 30.
In a December conference, she advised Mormino and Brasher’s colleague Allison Lee to contact her if discovery issues arose.
Neither side filed anything until this June, when Lee withdrew.
On Aug. 5, with trial 54 days away, Mormino moved to withdraw.
Daly set a hearing Aug. 31, and ordered Perko and Mormino to attend.
On Aug. 23, Mark Floyd of Clayton, Mo. entered on Perko’s behalf.
Daly excused Perko and Mormino, and converted the withdrawal hearing to a conference where she vacated the trial date.
At a conference on Oct. 4, she advised Floyd that if he sought additional discovery he should file a motion by Oct. 8.
On that date Floyd moved to reopen discovery and close it next May.
He wrote that he received evidence from Brasher that included interrogatories, two depositions of Perko, and a deposition of his wife.
“There is medical treatment discussed in plaintiff’s deposition that is not included in discovery and needs to be ordered and reviewed by an expert,” Floyd wrote.
He wrote that there were no depositions of defense witnesses or employees.
He wrote that there were no named experts and no medical reports or depositions.
He wrote that records secondary to treatment reasonably connected a diagnosis of concussion, wrist sprain, and neck and back injuries.
He wrote that records weren’t adequate to competently represent Perko at trial.
Brasher objected to the motion as unlimited, unfettered, and long past deadline.
“No explanation is given for plaintiff’s failure to engage in the discovery that plaintiff now seeks,” Brasher wrote.
Daly wrote in her order that the objection was “well taken.”
She wrote that insofar as previous counsel failed to engage in discovery, such failure didn’t constitute good cause to reopen discovery.
She set a conference Nov. 4, to set a trial date.
She wrote that the parties remained free to schedule mediation or contact her to schedule a settlement conference.