TOP EXPERTISE
COST EFFECTIVE EFFICIENCY

Category Archives: Case

Attorneys Dean Nichols and Jim Ribaudo Successfully Affirm Decision in Favor of the Existence of an Easement

PS Partner: Dean Nichols

PS Associate: Jim Ribaudo

We Represented: Ernest Rosener, Jr.

Venue:  Missouri Court of Appeals, Eastern District

Facts: Judgment of the trial court finding in favor of the existence of an easement for our client on the basis of a road maintenance agreement recorded prior to the transfer of property.

Verdict:  Appeal – Judgment Affirmed

 

Summary Judgment Granted for Construction Contract Defense in St. Clair County

PS Partner:  Dean Nichols

PS Associate:  Chris Enger

We Represented:   Red-E-Mix, LLC (Buzzi Unicem USA, Inc.)

Venue:  St. Clair County, IL

Facts:

Our client, Red-E-Mix, was added to this case as a third-party defendant to an underlying breach of contract action for alleged defects in plaintiffs’ driveway.  Red-E-Mix, the provider of the concrete, was joined as a third-party defendant. The third-party complaint alleged that the concrete provided by Red-E-Mix was defective. We filed a fourth-party complaint upon Columbia Quarry, alleging that the aggregate used in the concrete was defective. Both Red-E-Mix and Columbia Quarry moved for Summary Judgment on the basis that Illinois does not recognize implied indemnity when the underlying claim sounds in contract and there is no tort claim. The motions were granted because Avalon could not show that either Red-E-Mix or Columbia Quarry expressly indemnified it and the judge agreed that implied indemnity was not a valid cause of action on an underlying contract claim.

Verdict:  Summary Judgment Granted for Defense

Michael Hamlin and Ryan Niehaus Obtain Dismissal for Third-Party Administrator

PS Partner:  Michael Hamlin

PS Associate:  Ryan Niehaus

Facts:

Principal Michael Hamlin and Associate Ryan Niehaus obtained an order granting a Motion to Dismiss based upon lack of justiciable controversy.  Plaintiff filed a class action lawsuit against PS’ client, a third-party administrator, seeking declaratory and injunctive relief that plaintiff not be obligated to reimburse amounts paid for nurse case management fees associated with plaintiff’s workers’ compensation claim.  Mr. Hamlin and Mr. Niehaus argued that there was no justiciable controversy since the third-party administrator did not hold the subrogation claim.  Instead, pursuant to Missouri’s Workers’ Compensation Act, only the employer and the employer’s insurer hold the claim for subrogation – not the third-party administrator.  The court granted defendant’s motion and dismissed plaintiff’s class action suit.

Michael Hamlin Obtains Dismissal for Lack of Personal Jurisdiction

PS Partner:  Michael Hamlin

Facts:

Principal Michael Hamlin obtained an order granting a Motion to Dismiss for Lack of Personal Jurisdiction.  Plaintiff claimed to have suffered a traumatic brain injury as a result of striking his head multiple times while a passenger in a vehicle driven by Pitzer Snodgrass’ client.  The accident occurred in the Congo and PS’ client was a resident of Maryland.  Mr. Hamlin challenged the court’s ability to exercise personal jurisdiction over the defendant.  Plaintiff argued that the defendant had systematic, continuous, and substantial contacts with Missouri, such that personal jurisdiction should be asserted.  Following oral argument, the court granted defendant’s motion and dismissed Mr. PS’ client.

Peter Dunne and Michael Langella Successfully Defend Against Civil Rights Violation Claim

PS Partner: Peter J. Dunne

PS Associate: Michael A. Langella

We represented: Travelers Insurance Company

 Venue: United States District Court for the Eastern District of Missouri

Facts:

Type of action: 42 U.S.C. § 1983 – Failure to Intervene to Prevent Excessive Force.

Plaintiff claimed that his civil rights were violated when Defendant Franklin Adams used excessive force by instructing a police dog to apprehend him while he was offering no resistance to arrest and when Defendant Zach Albright failed to intervene to prevent the use of force.

The apprehension occurred during an arrest on April 19, 2014.  Plaintiff claimed he sustained injuries as a result of his apprehension by the police canine.  Defendants Zach Albright and Franklin Adams deny that excessive force was used, deny that Zach Albright failed to intervene to prevent the use of force, deny that they violated Plaintiff’s constitutional rights, claim that the instruction to the police canine to apprehend Plaintiff was justified based upon Plaintiff fleeing from officers, striking the police canine, resisting arrest, and the other circumstances and deny any and all liability.

Verdict:  Jury Verdict assessing no liability to Defendant in 42 U.S.C. 1983 case

Gary Snodgrass, William Thomas, and Nick Meriage Obtain Total Exoneration Verdict for Geotechnical Engineering Company Professional Liability Negligence Claim

PS Partners: Gary Snodgrass, William Thomas

PS Associate:  Nick Meriage

We represented: Tech Services to Go, Inc., d/b/a Tsi Engineering, Inc.

Venue: St. Louis County Circuit Court

Facts:

Negligence claim.

Design-build contractor Charah, Inc., a company that specializes in the coal fired power industry, dealing primarily with their waste products, engaged TSi, Inc., a geotechnical engineering firm, to prepare a geotechnical engineering report regarding a site that Charah and Ameren had chosen for the construction of a new limestone pulverizing facility, to provide pulverized limestone to Ameren.

The site chosen was on top of approximately 40-60 feet of fill, quarry waste, which was of unknown depth and consistency. In the report, TSi warned that the fill could settle, and the owner and builder needed to be willing to accept the risk of settlement should they want to proceed at the site. They later issued a chart, showing anticipated settlements at the site of only 1-2 inches, but again, referred everyone back to their original report, which warned about settlement.

After construction began, the site settled, and a new location needed to be chosen to complete the project. Charah sued TSi claiming over $1.6 million in damages related to “sunk costs,” on the abandoned site, as well as some lost profits and delay damages.

Verdict:  Defendant’s verdict.  Allocation of fault:  100% to plaintiff, 0% to defendant.

Pitzer Snodgrass P.C. Successfully Defends Premises Liability Claim

 

We represented: State Auto Insurance Companies – Morgan, LLC insured

Venue: Circuit Court of Jackson County, Illinois

Facts:

Plaintiff tripped and fell on a sidewalk on her way into work at an office building in Murphysboro.  Alleged injuries included right shoulder tendonitis, levator scalpula syndrome, plus cuts scrapes and bruises.

Pre-trial demand:  $20,000

 

Verdict:  Allocation of fault:  50% to plaintiff, 50% to defendant.  Verdict value:  $825.50

 

 

Release, Waiver, and Assumption of Risk for Cycling Incident – Summary Judgment Affirmed

Pitzer Snodgrass Lawyers: Peter Dunne and Bob Plunkert

Our Client: City of Chesterfield, Missouri

Venue: St. Louis County Circuit Court, appeal to Missouri Court of Appeals for the Eastern District

Plaintiff Steven Glazer filed a personal injury case in St. Louis County Circuit Court alleging the City of Chesterfield was negligent regarding alleged surface hazards on the roadway during a Pedal for the Cause event.  The Plaintiff executed a one-page “Waiver” before the event, which provided the following:

I ACKNOWLEDGE THAT BY SIGNING THIS DOCUMENT, I AM ASSUMING RISKS. . . I ACKNOWLEDGE THAT CYCLING IS AN INHERENTLY DANGEROUS SPORT AND FULLY REALIZE THE DANGERS OF PARTICIPATING IN THE EVENT, whether as a rider, official, coach, mechanic, volunteer, or otherwise, and FULLY ASSUME THE RISKS ASSOCIATED WITH SUCH PARTICIPATION INCLUDING, by way of example, and not limitation, dangers associated with man made and natural jumps; the dangers of collision with pedestrians, vehicles, other riders, and fixed or moving objects; the dangers arising from surface hazards, including pot holes, equipment failure, inadequate safety equipment, use of equipment or materials provided by the event organizer and others, THE RELEASEES’ OWN NEGLIGENCE, the negligence of others and weather conditions; and the possibility of serious physical and/or mental trauma or injury, or death associated with the event.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

I HEREBY WAIVE, RELEASE, DISCHARGE, HOLD HARMLESS, AND PROMISE TO INDEMNIFY AND NOT TO SUE the Releasees and all sponsors, organizers and promoting organizations, property owners, law enforcement agencies, public entities, special districts and properties that are in any manner connected with this event, and their respective agents, officials, and employees through or by which the event will be held, (the foregoing are also collectively deemed to be Releasees), FROM ANY AND ALL RIGHTS AND CLAIMS, INCLUDING CLAIMS ARISING FROM THE RELEASEES’ OWN NEGLIGENCE TO THE MEXIMUM EXTENT PERMITTED BY LAW, which I have or which may hereafter accrue to me and from any and all damages which may be sustained directly or indirectly in connection with, or arising out of, my participation in or association with the event, or travel to or return from the event.

The St. Louis County Circuit Court entered an order granting Defendant’s Motion for Summary Judgment on the grounds of release, waiver, express assumption of the risk, and implied assumption of the risk.  Plaintiff appealed the matter to the Missouri Court of Appeals, Eastern District.  After oral argument was held in the John K. Pruellage Courtroom at the Saint Louis University School of Law, the Court of Appeals, in an unpublished opinion, affirmed the judgment of the Circuit Court.

Jerry Simon, Derek Ruzicka and Robert Stephens Obtain Dismissal Without Prejudice in Asbestos Personal Injury Claim

PS Partners: Jerry Simon and Derek Ruzicka

PS Associate:  Robert Stephens

We represented: St. Joe Company

 Venue: St. Louis City Circuit Court

Facts:

Plaintiffs Jerry & Cheryl Cozart filed a personal injury and product liability case in St. Louis City circuit court alleging that St. Joe Company, along with other defendants, exposed Mr. Cozart to asbestos during his employment. Plaintiff was diagnosed with lung cancer on December 7, 2011.

In reliance on the recent United States Supreme Court case of Daimler AG v. Bauman, 134 S. Ct. 746 (2014), Pitzer Snodgrass filed a Motion to Dismiss for Lack of Personal Jurisdiction. In Daimler, the Court held that, with respect to a corporation, the place of incorporation and principal place of business are paradigm bases for general jurisdiction.

St. Joe was neither incorporated in the State of Missouri, nor has it ever maintained its principal place of business in the State of Missouri.  Additionally, St. Joe has never maintained a registered agent in the State of Missouri.

Prior to the Hearing for St. Joe Company’s Motion to Dismiss, Plaintiffs conceded to the Motion to Dismiss and agreed to voluntarily dismiss St. Joe Company from this lawsuit.

Verdict:  Dismissal without prejudice

Don O’Keefe Successfully Reduces Plaintiff Award in Personal Injury Claim

PS Partner: Don O’Keefe

We represented: Safeco Insurance Company (for Michael Halley)

 Venue:  Circuit Court of St. Louis County, Missouri

Facts:

Jamie Hathaway and his wife, who was a passenger, sued Michael Halley over a February 8, 2010 collision at the intersection of Missouri Highway 141 and Manchester Road.  Hathaway’s 2002 Volkswagon Golf was struck from behind by Halley’s 2006 Buick Lucerne while he was waiting at a red light on southbound Highway 141.

Hathaway sought chiropractic treatment for neck pain the following day.  He later had cervical disk replacement surgery, incurring $130,000 in medical expenses of which $100,000 was paid.  Halley disputed Hathaway’s account of the accident, claiming that the accident happened as he (Halley) was pulling forward to his left as Hathaway was attempting a right turn and that Hathaway’s car was on the road’s shoulder at the time of impact.

The final pretrial demand was $845,000 which was countered with a $100,000 offer by Don O’Keefe that represented Halley’s insurance policy limits.  At trial the defense disputed medical causation by summoning two expert witnesses who testified that Hathaway’s disc surgery was the result of “an ongoing degenerative process.” A third defense expert, an engineer, testified the force of the impact was equivalent to “walking up stairs or sitting down in a chair”.

After five days of testimony, the jury found Halley 75% responsible and Hathaway 25% at fault, awarding the plaintiff $11,440 which was the cost of his chiropractic care and resulting in a new award of $8,580 to the plaintiff.

Last Demand: $845,000

Last Offer: $100,000

Award:  $8,580

Verdict:  Defendant’s Verdict

Phillip Bryant Obtains Favorable Verdict in Product Liability Claim

PS Partner: Phillip Bryant

We represented: Robert Bosch Tool Corporation

 Venue: U.S. District Court, Eastern District of Missouri

Facts:

Mary Wood purchased a Skil model 3305 table saw for her husband, plaintiff Donald Wood, in November 2009.  On February 28, 2010 Mr. Wood attempted to cut 1 inch strips from the long side of a 4′ X 8′ sheet of 1/4″ flakeboard.  The only support for the work piece was Mr. Wood holding it on the top of the table saw and Mrs. Wood holding the outfeed end.  Three cuts were made successfully.  Six feet into the fourth cut, Mr. Wood experienced what he called a kick back.  The sudden movement resulted in Mr. Wood’s left hand sliding under the blade guard and into the spinning saw blade.

Plaintiff alleged the saw was defective because the saw did not incorporate a new style of guard that was just coming on the market and because the saw did not have flesh detection technology that would have immediatly stopped the blade upon contact with flesh.  Mrs. Wood testified that her husband used the saw another 20 times following his injury.  Some of those uses occurred after this lawsuit was filed.  Defendants contended that the style of guard that was on the saw was reasonably safe, that the new style of guard would not have prevented Mr. Wood’s hand from sliding under the guard and that it was not technologically or economically feasible to include flesh detection technology on the subject saw in 2009.

The jury returned a verdict in the amount of $40,000, substantially less than the plaintiff’s request of $2,000,000.

Verdict and Judgement:  $40,000

Phillip Bryant Obtains Motion for Summary Judgement in Property Insurance Claim Case

PS Partner: J. Phillip Bryant

We represented: Mount Vernon Fire Insurance Company

 Venue: U.S. District Court, Eastern District of Missouri

Facts:

SJP Properties, Inc. is in the business of buying and selling foreclosed properties. On July 13, 2006 it purchased the subject property at a foreclosure sale. SJP did not inspect the property at any time before or after its purchase. Without an interested buyer, the property sat vacant for more than two years. No one regularly checked on the property during that time.

The property was insured by defendant Mount Vernon Fire Insurance Company throughout its ownership by SJP. Among other provisions, the policies contained a clause providing coverage for vandalism, an exclusion for loss or damages “caused by or resulting from theft” and an exception to the theft damage exclusion for “building damage caused by the breaking in or exiting of burglars.”

On October 21, 2008 SJP discovered that the property was broken into and burglarized. SJP claims that kitchen cabinets, copper pipes and wiring had been stolen. The burglars damaged the property to extract the copper piping. SJP claims the damages were the result of the covered peril of vandalism and were not caused by the excluded peril of theft. SJP also sought unspecified damages for vexatious refusal.

Mount Vernon contended that the damages resulted from theft and are excluded from coverage. Even if the theft exclusion did not apply, Mount Vernon pointed to other policy provisions that exclude damages caused by continuous discharge of water from a plumbing system for 14 days or more, or by fungus, wet rot, dry rot or bacteria. Mount Vernon’s expert opined that, in fact, water discharged for more than 14 days. SJP provided not opinion to the contrary. The court’s Opinion agreed with Mount Vernon’s assessment and found that insurance coverage is not afforded for the claimed loss.

Verdict:  Motion for Summary Judgment

Don O’Keefe Wins Arbitration in a Product Liability Claim

PS Partner: Donald O’Keefe

We represented: Winco Window Inc.

Mediator: Timothy R. Thornton, U.S. Arbitration and Mediation

Facts:

APG International hired Winco to supply 1600 pre-fabricated windows for a New Brunswick redevelopment effort known as the Heldrich project which includes a 248-room hotel, 50,000-square-foot conference center, Rutgers University workforce development office, retail space and nearly 50 condominiums.  Winco also supplied installation material to Innovative Glazing Systems, the window installer.

APG International filed its arbitration in 2010, alleging that the windows failed leak tests by the general contractor after installation.  APG was seeking approximately $268,000 that it said the general contractor was withholding for the window defects, and another $178,562 the company said it spent for remediation to properly seal the windows.

The arbiter found that the company failed to demonstrate that the windows had design defects.  Further, Winco presented “substantial and convincing evidence” that the windows weren’t installed properly, the arbiter found.  After a two-day arbitration in July 2015, the arbiter awarded $17,882.81 to Winco Window Inc. to account for unpaid invoices, plus interest.  The arbiter also awarded Windo Window Inc. slightly less than $4,750 for legal fees.

Last Demand: $446,562

Award: Approximately $22,632.81

Dean Nichols Obtains Favorable Verdict in Amount of Pre-Trial Offer for Premises Liability Claim

PS Partner: Dean Nichols

We represented: Chesterfield Mall, LLC, ERMC II LLC, and ERMC III Property Management Co.

 Venue: St. Louis County, MO

Facts:

On April 1, 2010, plaintiff was working as a UPS delivery driver delivering packages to customers in the Chesterfield Mall.  As he traversed back to his truck, plaintiff stepped on a rusty grate, which failed.  The grate was owned and maintained by the defendants.

Plaintiff’s right leg fell through the grate, thereby allegedly injuring his leg and back.  As a result of this fall, plaintiff alleged he suffered an L4-5 protrusion with annular tear and herniation at the L5-S1 level, requiring a future reconstruction surgery at two levels.  In addition to pain and suffering, plaintiff claimed past medical specials of $19,428.51, past lost wages of $29,582.90, and future surgery in the amount of $150,000, for total specials of $199,011.41.  Plaintiff’s counsel requested approximately $700,000 in her closing argument.

The jury returned a verdict in the amount of $60,000, which was exactly what the defense offered pre-trial.

Verdict:  $60,000 pre-trial defense offer

Phillip Bryant and Anthony Hafner Obtain Motion for Summary Judgement in Battery and Assault Case

PS Partner: J. Phillip Bryant

PS Associate:  Anthony Hafner

We represented: Lititz Mutual Insurance Company

 Venue: Circuit Court of St. Louis County, Missouri, Division 20

Facts:

Plaintiff alleged that, without provocation, defendants Green and Williamson committed battery resulting in plaintiff’s jow to be broken.  Plaintiff and both defendants were intoxicated.  Plaintiff has no recollection of the events.

Both defendants agreee that Green did not strike planitiff.  Williamson acknowledged that he was the one who struck plaintiff, causing his broken jaw.  Green’s defense was that Green did not commit assault and battery as supported by the admission by defendant Williamson that Williamson did it.  Both defendants asserted that plaintiff instigated the incident.

Verdict:  Motion for Summary Judgment

Peter Dunne Receives Defendant Verdict on Civil Rights Claim

PS Partner: Peter Dunne

We represented: City of Ferguson and Police Officer Defendants

 Venue: United States District Court for the Eastern District of Missouri

Facts:

Henry Davis, plaintiff, alleged he was the victim of excessive force and Fourteenth Amendment violations arising out of a traffic stop.

The Plaintiff claimed he was the victim of mistaken identity but was arrested and taken to the Ferguson jail, where he claimed he was beaten and pre-textually charged with a number of municipal code violations.

The City was dismissed on summary judgment;  at the close of Plaintiff’s evidence, the court directed judgment in favor of the defendants on Plaintiff’s remaining claims.

Verdict:  Defendant’s Verdict

Phillip Bryant Awarded Defendant Verdict in Personal Injury Case

PS Partner: Phillip Bryant

We represented: Jon Mueller

 Venue: Circuit Court of St. Louis County, Missouri, Division 5

Facts:

Plaintiff Troy Manzella, then age 18, and defendant Jon Mueller, then age 19, played indoor soccer on opposing teams in an adult recreational league.  According to defendant Mueller, plaintiff exhibited overly aggresive behavior toward defendant throughout the game.  At one point, Manzella hit Mueller in the chest hard enough to knock the wind out of Mueller and to cause Mueller to fall to his knees.  As he began to rise, Mueller saw Manzella approach in an aggressive manner with clenched fists.  As Mueller stood, he attempted to push Manzella away.  As he rose, and as Manzella continued to approach, their heads collided and Manzella sustained a broken nose.  Plaintiff Manzella denied that he acted aggressively toward Mueller.  Manzella contended that, without provocation, Mueller intentionally head-butted Manzella’s face.  Mueller contended that he was not liable for plaintiff’s injuries.  As for plaintiff’s damages, it was pointed out that the deviated spetum was surgically corrected one week following the incident. Three months later, the plaintiff was hit in the nose by another player during a basketball game and the nose was pushed in.  Defendant’s expert, Dr Antisdel, opinioned that current headaches are the result of allergies rather than the nasal fracture.

Last Demand: $300,000

Last Offer: $20,001

Special Damages:  $16,518 medical expenses

Verdict:  Defendant’s Verdict

Seth Gausnell Receives Defendants Verdict for Premises Liability Claim

PS Partner:  Seth Gausnell

We represented: Shelter Mutual Insurance Company/Insured:  Daniel and Mary Hastey

 Venue: St. Louis County

Facts:

Plaintiff Maureen Damti alleged to have slipped on stepping stones in defendants’ backyard suffering a fracture to her left tibia and fibula.

The jury returned a verdict for the defendant.

Last Demand: $250,000

Last Offer: $0

Special Damages: The attorneys stipulated to the damages of $25,000

Verdict:  Defendant’s verdict

Phillip Bryant Successfully Reduces Plaintiff Award in Personal Injury Claim

PS Partner: Phillip Bryant

We represented: Virginia Evans

 Venue: Circuit Court of the City of St. Louis, Division 19

Facts:

Defendant Virginia Evans (insured by Safeco Insurance) stopped her car behind that of plaintiff Tana Houston at a traffic light.  Ms. Evans’ foot slipped off the brake pedal and her car rolled into the rear of the plaintiff’s.  There was no damage to either vehicle.  The plaintiff claimed to have sustained herniated discs of the cervical and lumbar spine that will eventually require surgery.  The plaintiff presented incurred medical expenses of $36,520, incurred lost income of $3,612 and the future cost of surgery of $75,000.  The defense was that if the plaintiff sustained any injuries, those were limited to cervical and lumbar strains that resolved by October 30, 2008.  Treatment up to that date cost $2,700.  In closing, plaintiff’s counsel asked for $140,000.  The defendant suggested $4,700.

The jury returned a verdict for the plaintiff.

Last Demand: $140,000 during trial

Last Offer: $4,700

Verdict:  Plaintiff’s verdict awarded $5,000.

Defendants Verdict for Bi-State Development Agency

PS Partner: Don O’Keefe

We represented: Bi-State Development Agency, d/b/a Metro

Venue: St. Louis City Circuit Court

Facts:

Plaintiff’s lawsuit arose from a slip-and-fall sustained by plaintiff Sharon Therrian when she attempted to board a Bi-State bus on October 10, 2011 near the intersection of South Grand Boulevard and Magnolia in the City of St. Louis. Plaintiff alleged damages for personal injuries as a
result of stepping into what she called a pothole as she specifically stepped from the curb onto the street in order to reach the Bi-State bus. Plaintiff’s Petition and evidence at trial included that she was waiting on the west side of South Grand when a Bi-State bus pulled up to the stop, failed to pull up to the curb, and stopped several feet from the curb. Plaintiff claimed that as a result, she was required to step into the street to board the bus, and in doing so, she stepped into a 10”x10”x2” dirt and debris-filled pothole located in the street immediately adjacent to the street. (more…)

Defendants Verdict in American Puzzle Company, LLC v. Walter Wurdack, Inc.

PS Partner: Dean C. Nichols

We represented: Walter Wurdack, Inc.

Venue: St. Louis City

Facts:

This case involved a plaintiff puzzle company who had obtained sanding sealer from the defendant for years.  Plaintiff manufactured unique layered wooden puzzles.  Plaintiff claimed the defendant specially formulated a sealant for manufacture of children’s puzzles.  The sanding sealer had phthalates in it, which were prohibited by the Consumer Product Safety Information Act as of February 10, 2009.  (CPSIA)  Plaintiff produced puzzles for sale to Toys R Us, which failed a CPSIA test.  Plaintiff claimed production was completely shut down for over 6 weeks due to the failed sealant, thereby causing plaintiff to lose sales from Toys R Us, Kaplan, and Costco.  Plaintiff claimed over $3.2 million in lost profits and lost business relationships.  Plaintiff claimed it was forced to close down and layoff all of its employees as a result of defendant’s actions.  The case was tried for 7 days and the jury returned a unanimous verdict in favor of the defendant.

Last Demand: $1,650,000 – his demand was made during trial. Plaintiff requested over $3,200,000 from the jury in his closing.

Last Offer: $500,000

Verdict:  Defendant’s verdict

Dean C. Nichols receives Defendants Verdict for Medical Malpractice Claim

PS Partner: Dean C. Nichols

We represented: Michael Horwitz DPM and Feet For Life Centers

 Venue: St. Louis County

Facts:

Plaintiff had bunions on both feet and came to Dr. Horwitz for treatment. Plaintiff claimed she did not have hammertoes and had only bunions. Dr. Horwitz performed Austin and Akin bunionectomies on her first metatarsals and arthroplasty on toes 2-5 of both feet. A tweak procedure was performed on the 3rd toe on the right foot after these procedures. Plaintiff alleged negligence in recommending and performing the surgeries. Plaintiff claimed the fixation pin on the right foot was not placed correctly, thereby causing the pin to stick out of her foot, and causing her disabling injuries. Plaintiff complained of severe pain in both her feet since the surgeries and testified she could not work as a result. The defendants denied the procedure was performed improperly and showed X-Rays of plaintiff’s feet after the surgeries showing proper alignment.

The jury returned a verdict for the defendant.

Last Demand: $250,000 during trial

Last Offer: $0

Verdict:  Defendant’s verdict

Motion to Dismiss granted to Missouri Highways and Transportation Commission

PS Partners/Associate: J. Phillip Bryant, Partner and Aahren Rodriguez DePalma, Associate

We represented: Missouri Highways and Transportation Commission (MHTC)

Venue: Circuit Court of the City of St. Louis, Missouri

Facts:

Personal injury lawsuit in which Plaintiffs Yvonne Marshall, Ricky Tyberendt, and Steven Chott claim they were injured on February 23, 2011 when they were involved in a 37 car pileup on eastbound Interstate 64 near the Market Street exit. According to their Petitions and the police report from the incident, a freezing rain fell in the early morning hours of February 23, 2011 covering the Vandeventer Ave. bridge with ice from the freezing rain. It is alleged that Robert Luzynski was operating a truck in the course of his employment with United Parcel Service, Inc. (“UPS”) when he lost control of his truck, blocking the eastbound lanes of I-64. This set off a chain reaction with numerous other vehicles colliding into the UPS truck as well as into those vehicles operated by individual motorists already involved in the collision.

After much discovery occurred, Ricky Tyberendt, Steven Chott and Yvonne Marshall joined MHTC as a defendant in their lawsuits alleging that a dangerous condition existed because the road allegedly lacked proper skid resistance and/or was unreasonably slick. They further claimed that MHTC had actual or constructive notice of the dangerous condition caused by the freezing rain, which allegedly occurred hours prior to the accidents, but that MHTC failed to take measures to protect against this condition. Specifically, these plaintiffs claimed that MHTC failed to obtain an accurate or reliable weather forecast, failed to treat the roads with de-icing agents, and failed to notify traffic of the slick conditions.

We moved to dismiss MHTC on the argument that MHTC is protected by sovereign immunity on the plaintiffs’ claims against it. Specifically, we argued that plaintiffs’ allegation that MHTC failed to obtain a weather forecast does not trigger a waiver of sovereign immunity. Nor did plaintiffs’ complaint that MHTC failed to de-ice the road. Similarly, the alleged failure to warn motorists of slick road conditions was insufficient to trigger a waiver of sovereign immunity. Plaintiffs countered that the alleged failures by MHTC arose out of a condition of the property, thereby triggering a waiver of sovereign immunity. Judge Dierker agreed that MHTC is under a duty to maintain the roadway so that it is safe for drivers. However, the duty to remedy an icy condition depends upon pleading and proof that the condition was not common to the area in general at the time of the injury and that, considering the scope of the roadways under the defendant’s control, there was ample advance notice of the particular condition to permit the defendant to remedy it. Judge Dierker noted that the pleadings are bereft of allegations showing that the hazard on the roadway was different than the hazard posed by freezing rain anywhere else in the area. The allegation that MHTC had notice of freezing rain in the vicinity of the accident site some hours before the accident is patently insufficient to afford MHTC time to protect against the specific hazard existing at the site of the accident.

Verdict for Defendant Safeco Insurance Company of Illinois

PS Partners/Associate: Gary E. Snodgrass, Partner and Deanna J. Brady, Associate

We represented: Safeco Insurance Company of Illinois

Venue: Missouri – Howell County Circuit Court

Facts:

Plaintiff Karen Burkett was a passenger in a vehicle owned by plaintiff and her husband, and driven by her son, on February 22, 2007. The Burkett vehicle slowed down for traffic on Highway W in Thayer, Missouri, when Devin Smith crested a hill and was unable to stop before hitting the rear of the Burkett vehicle. Plaintiff filed suit against Mr. Smith and her underinsured motorist carrier, Safeco Insurance Company of Illinois. Mr. Smith settled with plaintiff for $25,000.00, the limits of his policy of insurance, prior to trial.

Plaintiff claims that immediately after the accident, she tried to get out of the car, but became dizzy and fell to the ground. She did not receive medical treatment at the scene. However, she went to an urgent care center later that day where she complained of neck and back pain. She was diagnosed with cervical, thoracic, and lumbar strains. Plaintiff claims she had shortness of breath immediately after the accident, although shortness of breath was not noted in her medical records until several months after the accident.

After the accident, a chest x-ray was taken of the thoracic spine which showed an elevation of the right hemi diaphragm in the lung.   Plaintiff underwent surgery for her lung condition on July 10, 2007. After the surgery, plaintiff continued to complain of shortness of breath and claimed she is disabled and unable to return to work as a home health care provider due to her condition.   Plaintiff’s medical expenses totaled around $55,000.

Plaintiff was involved in a prior automobile accident in 2005 wherein she complained of abdominal pain and back pain. A CT scan in the emergency room following that accident showed an elevated right hemi diaphragm of her lung. She was diagnosed with a possible contusion to the right lung at that time.

Plaintiff claimed the 2007 accident exacerbated her lung condition as she did not have any complaints or shortness of breath prior to the accident. Plaintiff’s experts Dr. David Dale, her IME doctor, and Dr. Christopher Nicholas, her treating surgeon, testified at trial that the 2007 accident exacerbated her lung condition as she claims she did not have any complaints of shortness of breath prior to the 2007 accident.

Defendant’s experts Dr. Brian Kim and Dr. Joseph Horner testified via videotaped deposition, and Dr. Andrew Martine testified at trial that the 2007 accident did not cause or exacerbate plaintiff’s lung condition as the elevation of the right hemi diaphragm had not changed in the x-rays prior to, and after the 2007 accident. Also, defendant’s experts testified that plaintiff did not exhibit the type of symptoms after the 2007 accident that would be expected if there was damage to the phrenic nerve and the lung condition was exacerbated by the accident.

The jury returned a verdict for the defendant.

Last Demand: $25,000

Last Offer: $0

Gary Snodgrass Gets Defendants Verdict in Personal Injury Claim

Schwarz v. Maguire

PS Partners/Associate: Gary E. Snodgrass, Partner and Deanna J. Brady, Associate

We represented: Marilyn Maguire

Venue: St. Louis City Circuit Court

Facts:

Plaintiff Paul Schwarz was stopped on his 2004 Harley-Davidson Sportster Motorcycle at the intersection of Vandeventer and Boyle in the City of St. Louis on October 14, 2008. The defendant Marilyn Maguire stopped her 1992 Honda Accord behind plaintiff’s motorcycle.    Both were waiting on Boyle to turn right, or southbound, onto Vandeventer.

According to plaintiff, he rolled his motorcycle forward about ten feet to get a better look at oncoming traffic and stopped. The defendant believed plaintiff was turning onto Vandeventer and removed her foot from the brake and did not touch the accelerator. She did not see plaintiff’s motorcycle stop and she impacted the rear of plaintiff’s motorcycle. Plaintiff claimed the impact pushed his motorcycle across two lanes of travel into the center of the intersection. Neither plaintiff nor the motorcycle fell to the ground. Defendant claimed the motorcycle only moved forward two to three feet.

Plaintiff did not make any complaints of injury at the scene of the accident; however, he claims he felt pain in his neck later that evening. The following day, plaintiff treated with a massage therapist. He received four treatments over the course of one month, with total charges in the amount of $180.00.

Three months later, plaintiff saw his primary care physician, Dr. Fischer, who ordered an MRI. The MRI revealed a herniated disc at C5-6 that was possibly touching the spinal cord. About one month later, plaintiff saw an orthopedic surgeon, Dr. Mirkin, who discussed conservative treatments and surgery. Plaintiff was not interested in conservative treatment and he underwent fusion surgery of his neck at the C5-6 level on July 16, 2009. Dr. Mirkin testified via videotaped deposition that the herniated disc he treated was a direct result of the motor vehicle accident. Plaintiff did not receive any other treatment and his medical expenses totaled $79,791.98, of which $20,938.71 was actually paid. The remainder was written-off or adjusted with no further obligation on plaintiff’s part to repay the balance.

Defendant’s orthopedic expert, Dr. Marvin Mishkin, testified via videotaped deposition that plaintiff’s herniated disc was the result of degenerative disc disease and was not caused by the accident, and therefore, the fusion surgery was not caused by or related to the accident. Defendant’s biomechanical engineer expert, Doug Morr, testified live at trial that the acceleration plaintiff would have felt upon impact would be comparable to walking down stairs or plopping on a chair. He did not find any forces that could have caused any significant cervical injury. At most, plaintiff would have suffered a minor cervical sprain or strain in the impact.

The jury returned a verdict in the amount of $400.00. Prior to trial, the parties entered into a high/low agreement in the amount of $30,000.00/$100,000.00. Therefore, judgment was entered in the amount of $30,000.00 in favor of plaintiffs.

Last Demand: $75,000

Last Offer: $30,000.00. Plaintiffs rejected $30,000.00, but agreed to a high-low of $30,000.00 to $100,000.00

Verdict:  Plaintiff $400.00

Gary Snodgrass wins Defense Verdict for Construction Premises Claim

Jack Reynolds v. Tony Prince Company, Inc., d/b/a Tony Prince Flooring

PS Partner who tried case: Gary E. Snodgrass, Partner and Derek Ruzicka, associate

We represented: Tony Prince Company Inc., d/b/a Tony Prince Flooring

Venue: St. Louis County, Missouri

Facts:   Plaintiff claimed he suffered a knee and wrist injury while walking through a construction jobsite.  He purportedly slipped in glue, which was placed on the floor by Tony Prince Company’s floorlayer as part of the process of laying carpet tiles.  The parties disputed whether the floorlayer placed warnings in the area of the glue.  Plaintiff asserted a caution post with caution tape draped around the top was stationed against a wall.  The floorlayer testified the post and tape were in clear view of workers who might attempt to enter the “glued” area and that he was instructed not to string the caution tape from the post to the wall by the job superintendent, an employee of the general contractor.  There were no other available caution posts.  The parties also disputed whether the plaintiff’s claimed knee injury was pre-existing.  Plaintiff asserted he suffered a fractured cartilage as part of the fall.

The defendant presented evidence that the plaintiff sought treatment on the same knee a mere three months before the incident.  As part of that prior treatment, an MRI was performed.  The defendant’s radiologist reviewed the MRI films from before the incident and compared them to the post-incident MRI films.  The testified that the “problem” area that was present after the fall was also indicated on the films taken before the fall, although not to the extent that was present after the fall.

Last Demand: $600,000

Last Offer: $300,000

Verdict:  Defendant’s Verdict

Josh Breithaupt obtains a Defense Verdict in a Transportation Personal Injury Claim

Gloria Ramirez and Jose Luis Rodriguez v. Lance Kaden

PS Associate who tried case: Josh C. Breithaupt

We represented: Defendant Lance Kaden

Venue: The City of St. Louis, Missouri

Facts:  Plaintiff Gloria Ramirez alleged various personal injuries arising from a motor vehicle accident with defendant Lance Kaden that occurred at the intersection of Loughborough Avenue and the onramp to Interstate 55 South in St. Louis, Missouri.  The motor vehicle collision occurred on April 27, 2010 when plaintiff attempted to execute a left turn in front of eastbound traffic on Loughborough to enter onto the Interstate 55 South onramp.  Plaintiff testified at trial that she had a green arrow controlling her left turn lane immediately prior to the collision.  As a result, she argued that she had the right of way through the intersection.  Defendant Lance Kaden disputed this claim, and testified that he had a solid green light controlling his lane of traffic on eastbound Loughborough through the intersection.  Defendant did admit that he took his eyes off the intersection when he dropped a pen or pencil in his lap immediately prior to the collision.

As a result of the accident, plaintiff Gloria Ramirez claimed medical expenses of $5,000.  Additionally, plaintiff Jose Luis Rodriguez sought $10,000 in property damages to the Ford F-150 that he owned, and plaintiff Gloria Ramirez was driving at the time of the accident.  Plaintiffs’ counsel asked for an amount “up to $100,000” for the two claims in his closing argument to the jury.

Last Settlement Demand Prior to Trial: $22,000

Last Settlement Offer: None

Verdict:  Defendant’s Verdict

Dean Nichols with a Defense Verdict in Healthcare Medical Claim

Charles Alper v. Gentiva Health Services

PS Partner who tried case: Dean C. Nichols

We represented: Gentiva Health Services

Venue: St. Louis County, Missouri

Facts:  Plaintiff underwent a bypass surgery with grafts and was discharged from the hospital on July 15, 2004. Plaintiff’s cardiovascular surgeon, Dr. Eisenberg, enlisted the services of home health care provider Gentiva Health Services to provide home care after discharge, including monitoring of plaintiff’s incisions at the harvest sites. Nurse Laurie Jansen, who was employed by Gentiva at the time, provided care and monitoring of plaintiff in the two weeks after his discharge and visited him four times. On July 26, plaintiff was diagnosed with multiple serious infections at several of the vein harvest sites and plaintiff was hospitalized.

During the hospitalization, plaintiff received intravenous antibiotic therapy and surgical intervention in the form of debridement of the wounds. Plaintiff alleged that Gentiva’s employee, Laurie Jansen, failed to appreciate and recognize the signs and symptoms of infection during her visits and that plaintiff would not have needed to be hospitalized if the infection was diagnosed and plaintiff received treatment earlier than July 26. Plaintiff alleged that signs and symptoms of infection that were present as early as July 18, 2004, required Nurse Jansen to obtain immediate medical attention. Plaintiff claimed medical bills of $57,925,43 and lost wages of $2,600. Plaintiff’s counsel asked for a verdict in the amount of $450,000 in his closing argument to the jury.

Last Demand: $450,000

Last Offer: None

Verdict:  Defendant’s Verdict

Peter Dunne: Holland v. City of Gerald, et al.

Holland v. City of Gerald, et al.

PS Partner/Associate who tried case: Peter J. Dunne and Peter M. Rohrich

We represented: Missouri Public Entity Risk Management

Venue: United States District Court, Eastern District of Missouri

Facts:  The plaintiffs were all citizens of the City of Gerald MO who sued an imposter who posed as a Federal Drug Agent and the Chief of Police, Assistant Chief and a Police Officer who allegedly engaged in a conspiracy to falsely arrest and illegally search and detain innocent citizens.

Peter J. Dunne and Peter Rohrich defended the former City of Gerald Chief of Police, the Assistant Chief and a Police Officer against the claims of 29 plaintiffs who alleged their civil rights against illegal searches, false arrests and improper interrogation were violated when a fraudulent Federal Agent led the Gerald Police on drug raids against a number of individuals and searched a number of homes. The plaintiffs sought millions of dollars in damages apiece. Seven plaintiffs’ claims were dismissed during trial. Verdicts for the defense were returned on the claims of 13 of 22 claims submitted. Of the nine plaintiff’s verdicts returned, seven were for $1 actual and $1000 punitive damages. One plaintiff’s verdict was for $300 actual and $1000 punitive damages, and one plaintiff received a verdict of $1 actual and $2000 punitive damages.

Last Demand: Over $1,000,000

Last Offer: $250,000

Phillip Bryant Represents Robert Julian v. Betty Lester v. Richard Clark

PS Partner who tried case:  J. Phillip Bryant

We represented: Safeco Insurance Company of America

Venue: City of St. Louis

Facts:   Defendant Betty Lester collided with the side of the vehicle in which plaintiff was a passenger allegedly causing injury to plaintiff’s neck and back. Plaintiff had a twenty year history of neck and back complaints but denied having symptoms during the six years before the accident.  Through diligent discovery, we discovered evidence of complaints during that time.  The majority of plaintiff’s treatment was with a pain management physician.  Settlement Negotiations:  Prior to litigation, plaintiff demanded $100,000.  In response, $11,500 was offered.  Plaintiff replied that he would not reduce the demand from $100,000, thereby ending settlement negotiations.  Verdict:  $54,000

Verdict:  Plaintiff’s verdict for $54,068.88

Defense Verdict for Charter Communications vs. Marvin and Cassandra Hitchye

Marvin and Cassandra Hitchye v. Charter Communications, Inc. with Intervener Department of Veteran Affairs

Partner who tried case: William Thomas/Katrina Smeltzer

We represented: Charter Communications, Inc.

Venue: Circuit Court of St. Charles County

Facts:Plaintiff Marvin Hitchye alleged he fell due to a cable when he was walking backwards carrying a 60-65 pound speaker out of an exterior door of his residence. Plaintiff Marvin Hitchye alleged Charter Communications, Inc. was responsible for the placement of the cable, and that he sustained serious and permanent injury to his shoulders, neck, and lower back as a result of the fall. Plaintiff Cassandra Hitchye sought loss of consortium. Charter Communications, Inc. disputed it was responsible for the placement of the cable at the time of the alleged fall. Charter Communications, Inc. also disputed the causation and extent of plaintiff Marvin Hitchye’s alleged injuries. The jury returned a verdict finding Plaintiff Marvin Hitchye 100% at fault.

Last Demand: $100,000 plus full payment of medical bills to the Department of Veterans Affairs totaling approximately $65,000-$75,000.

Last Offer: $50,000 with payment to the Department of Veterans Affairs to be determined at a later time.

Verdict:  Defense Verdict

Directed Verdict for the Defendants in Civil Rights Case

Peter Dunne Jessica Liss Directed Verdict for Defendants Kenneth Charron v. Correctional Medical Services et al.

Partner who tried case: Peter J. Dunne/Jessica L. Liss

We represented: Dr. Marcos Nalagan and Dr. Charles Chastain

Venue: USDC EDMO

Facts:RPS successfully defended two physicians in a claim for civil rights violations arising from their treatment of plaintiff, a DOC inmate. The Court directed a verdict in favor of the defendant physicians following the cross examination of the plaintiff and the close of the plaintiff’s evidence.

Last Demand: None

Last Offer: None

 

Verdict:  Directed Verdict for Defendants

Defendant Verdict in Medical Malpractice Claim

Penny Keller v. James J. Dalla Riva, M.D. and Thomas Hulsen M.D.

Pitzer Snodgrass Partner who tried case: Michael J. Pitzer

We represented: Thomas Hulsen, M.D.

Venue: Madison County, Illinois Circuit Court

Facts:  Plaintiff’s small intestine was perforated during laparoscopic surgery by co-defendant. Dr. Hulsen was charged with failing to diagnose the perforation in a timely manner although he did so within 24 hours.

We were successful in proving that Dr. Hulsen’s care did not cause plaintiff any more injury than the original perforation. Plaintiff’s experts were not able to prove causation and the court agreed when it sustained a Motion for Directed Verdict at the close of plaintiff’s evidence. This was a rare directed verdict in Madison County, Illinois.

Last Demand: $0

Last Offer: $0

Verdict:  Directed Verdict in favor of Dr. Hulsen

Defense Verdict for Transportation Personal Injury Claim

Donald Eye II v. Suhor Industries, Inc.

Partner who tried case: Dean C. Nichols

We represented: Chubb, Suhor Industries, Inc.

Venue: Washington County, MO

Facts:Defendant’s driver was setting up for a funeral with his vault truck loaded with equipment weighing a little over 10,000 pounds at White Oak Grove cemetery. As part of his job, he parked the vault truck on a sloped paved pathway in the cemetery. Plaintiff, a gravedigger, pulled up approximately 50-60 feet downhill behind the vault truck.  After the vault truck was parked, it then began to roll down the hill towards plaintiff’s vehicle and the rear of the vault truck struck the front of plaintiff’s vehicle. Plaintiff claimed injuries to his neck and back and claimed medical bills over $22,000. The defendant denied it was liable and denied plaintiff was injured. Plaintiff’s counsel requested plaintiff be awarded $90,000 in his closing argument.

Last Demand:              $75,000

Last Offer:                   $20,000

Verdict:                        Defense Verdict

Defense Verdict in Medical Malpractice Wrongful Death Case

Hickman v. Chavez, et al.

Partner who tried case: Michael J. Pitzer

We represented: Defendant one, an internist and Defendant two, a pulmonologist/critical care physician

Venue: St. Clair County Illinois Circuit Court

Facts: This was a wrongful death case arising out of medical treatment following the deceased’s admission to the hospital for a ruptured appendix. While in the hospital, she developed pleural effusion and atelectasis, but she appeared on the road to recovery after being weaned from the ventilator. However, two weeks after her admission she developed cardio-pulmonary arrest and suffered brain damage as a result of hypoxia. She never recovered and lived for a year and a half in a vegetative state.

Last Demand:              $ 2 million

Last Offer:                     $ zero

Verdict:                          Defense Verdict for both defendants

Defendants Verdict in Trucking Related Personal Injury Claim

Casey Hinton vs. TransAm Trucking, Inc.

Partner who tried case: J. Phillip Bryant

We represented: TransAm Trucking, Inc.

Venue: Circuit Court of Madison County, Illinois

Facts:  TransAm driver rear ended another tractor-trailer on I-55 that was stopped due to traffic congestion stemming from road construction.  Plaintiff alleged that the second tractor-trailer was pushed into a pick up truck that was, in turn, pushed into the rear of plaintiff’s vehicle.  There was no direct testimony to support the plaintiff’s alleged version of events.  We contended that the plaintiff failed to meet her burden to prove that the impact she experienced was caused by the TransAm driver.  We also disputed the extent of the plaintiff’s medical care that largely consisted of chiropractic treatment and physical therapy.

Last Demand: $13,800

Last Offer: $5,750

Verdict:  Defendant’s Verdict

Defendant Verdict for Missouri Botanical Garden for Premises Liability Claim

Kristie Holden V. Missouri Botanical Garden Michael Pitzer

Partner who tried case: Michael J. Pitzer

We represented: Missouri Botanical Garden

Venue: Circuit Court of the City of St. Louis

Facts: On June 6, 2006, plaintiff Kristie Holden was visiting the Missouri Botanical Garden when she missed a step while walking down the pathway. She took an air-step and fell, spraining her right ankle and fracturing her left ankle. Treatment included a metal plate and screws to retain the fragments. Her medical bills totaled $62,000. Plaintiff claimed that the single riser step in a path in the Japanese Garden was defective because it did not have visual cues which would cause plaintiff to see it. The defense was based upon the fact that the plaintiff failed to keep a careful lookout for a step that was obvious if she looked. Plaintiff’s last demand was $100,000. There was no offer. The jury returned a verdict in favor of the Missouri Botanical Garden.

Plaintiff Verdict Obtained for Safety National Casualty Corporation

Chris Lang, Safety National Casualty Corporation v. Austin Resolutions, Inc.

Partner who tried case: Christopher J. Lang

We represented: Safety National Casualty Corporation

Venue: United States District Court, Eastern District of Missouri

Facts: Plaintiff Safety National commenced this action against Austin Resolutions seeking damages arising out of the performance of (or failure to perform) an oral contract that was entered into between the parties. Specifically, Safety National           hired Austin Resolutions, a company who specializes in negotiating substantial discounts on medical bills with providers, to negotiate and reduce medical bills owed to Regional Medical Center for care and treatment rendered to Sherry Hubble. Austin Resolutions’ fee was to be derived from a percentage of the savings or reduction that Austin Resolutions secured from the medical bills owing to Regional Medical Center. Austin Resolutions charged Safety National Casualty Corporation the sum total of $73,190.46, which was represented to be the fee based upon the negotiated savings. Safety National claimed that Austin Resolutions secured no savings or reduction from the medical bills owing to Regional Medical Center for the care and treatment rendered to Sherry Hubble and, thereby, breached its contract with Safety National. Further, Safety National contended that Austin Resolutions breached its implied covenant of good faith and fair dealing and asserted claims for money had and received, fraudulent misrepresentation and negligent misrepresentation.

Specials: Plaintiff alleged damages in the amount of $73,190.46, which represents the fee paid to Austin Resolutions for its purported cost containment services.

Demands:  Plaintiff’s demand was $52,500 5 days before trial.

Offers:  Defendant’s last offer made one week prior to trial was $25,000

Verdict/Result: Verdict in favor of the plaintiff Safety National Casualty Corporation as to all counts, with monetary damages in the amount of $73,190.46 awarded.

  • Recent Posts

  • Archives

  • Categories