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The “MDLA Congratulates” column recognizes significant defense victories at summary judgment, trial, or appeal by MDLA members. To be included in the next edition, send a short, one paragraph summary of the case including the MDLA member attorneys involved, the type of victory, and the issues presented to firstname.lastname@example.org or email@example.com. Inclusion in the MDLA Congratulates column in the printed journal is subject to space limitations and the MDLA editorial committee reserves the discretion to determine which cases will be included in the column and/or to shorten submissions as appropriate.
GEORGE SOULE AND MELISSA STULL, SOULE STULL, OBTAIN COLORADO DEFENSE VERDICT
George Soule and Melissa Stull successfully defended their client, obtaining a full defense verdict in the United States District Court for the District of Colorado. The plaintiff, a truck driver, sustained injuries when he was struck by cargo that fell off his step-deck trailer at an unloading site in Minneapolis. Soule & Stull’s client Immedia had purchased the cargo, which the plaintiff transported from the Denver area to Minneapolis. Plaintiff claimed that Immedia failed to prepare the cargo adequately for shipment and was negligent in supervising the unloading process in Minneapolis. During the two-week trial, the parties presented 39 witnesses, including 18 expert witnesses. The plaintiff requested the jury award over $10 million in economic losses in addition to pain and suffering damages and punitive damages. After four hours of deliberation, the jury returned a defense verdict, finding against plaintiff’s claims that Immedia was negligent and vicariously liable for alleged negligence of its contractor.
JIM MCALPINE AND STEVE SCHWEGMAN, QUINLIVAN & HUGHES, SUCCESSFULLY DEFEND MEDICAL MALPRACTICE CASE
Jim McAlpine and Steve Schwegman of Quinlivan & Hughes defended a medical malpractice case in May 2019. Plaintiff trustee for the next of kin sued a Twin Cities long-term care provider alleging that its nursing staff departed from the recognized standards of care and caused the resident’s death. The claims were denied and
CECILIE LOIDOLT, BASSFORD REMELE, OBTAINS DEFENSE JURY VERDICT IN MEDICAL MALPRACTICE/WRONGFUL DEATH CASE
Cecilie Loidolt, Bassford Remele, recently received a defense verdict in medical malpractice/wrongful death jury trial in Hennepin County. Plaintiff alleged negligent failure to diagnose diabetic ketoacidosis of a mother resulting in the death of a 27-week-old infant.
KATHLEEN CURTIS, TEWKSBURY-KERFELD, AND JAMES JARDINE, PRO BONO, OBTAIN DEFENSE VERDICT IN DOG BITE CASEKathleen Curtis, Tewksbury-Kerfeld, together with retired Farmers staff counsel, James Jardine, recently obtained a defense verdict in a dog bite case. The plaintiff, a tenant in an apartment complex, was bitten on the face by another tenant’s dog. Plaintiff sustained facial lacerations that required several stitches and claimed her TMJ and several teeth were damaged by the dog bite. She sued the dog owner for statutory liability and negligence, and the apartment complex for harboring and negligence premised upon the complex allowing large dogs and dogs of the Akita breed. The harboring claim was dismissed on summary judgment, but the negligence claim went to the jury along with all claims against the dog owner. The apartment complex defendants were represented by Kathleen Curtis, but the dog owner was pro se until shortly before trial, when James Jardine stepped in to defend him pro bono. The dog owner argued the plaintiff provoked the attack by putting her face in the dog’s face as she bent down to pick up a dog treat she had dropped. The jury agreed, finding the plaintiff 100% at fault. The jury awarded $20,000 past pain and suffering, $8,000 future pain and suffering, $7,500 past medical expenses, and $624 in past wage loss. Based upon the medical bills awarded, the jury did not relate any of the dental issues to the dog bite.
ROXANNE KOERBER V. ANTHONY ASHLEY, EXECUTIVE AFFILIATES, ET AL. (ANOKA COUNTY).
Plaintiff was a tenant in an apartment complex when she was bit on the face by another tenant’s dog. She sued the dog owner for statutory liability and negligence, and the apartment complex for harboring and negligence. The negligence claim against the apartment complex was premised upon it allowing large dogs and dogs of the Akita breed. The harboring claim was dismissed by Judge Barry Sullivan on summary judgment, but the negligence claim went to the jury along with all claims against the dog owner. Plaintiff sustained facial lacerations that required several stitches and claimed her TMJ and several teeth were damaged by the dog bite. The dog owner was pro se until shortly before trial, when James Jardine stepped in to defend him pro bono. The dog owner argued the Plaintiff provoked the attack by putting her face in the dog’s face as she bent down to pick up a dog treat she dropped. The jury agreed, finding Plaintiff provoked the attack and was 100% at fault. The jury awarded $20,000 past pain and suffering, $8,000 future pain and suffering, $7,500 past medical expenses, and $624 in past wage loss. Based upon the medical bills awarded, it did not relate any of the dental issues to the dog bite. Dr. Eric Schiffmann was the defense dental medical expert. Plaintiff’s treating doctors were plastic surgeon Dr. Jess Prischmann, oral surgeon Dr. Ketan Patel, and dentist Dr. Luke Bogdanowicz. Plaintiff was represented by Adam Sienkowski and Susan Holden. Defendant Anthony Ashley was represented by James Jardine. The apartment complex defendants were represented by Kathleen Curtis.
BILL DAVIDSON AND GRANT GOERKE, LIND JENSEN SULLIVAN & PETERSON, P.A., WIN DISCRIMINATION APPEALMDLA members Bill Davidson and Grant Goerke of Lind Jensen Sullivan & Peterson, P.A., secured an appellate victory on behalf of their client, a non-profit employer, in an employment discrimination case before the Minnesota Court of Appeals. The court of appeals affirmed the dismissal of a former employee’s claim that the employer terminated her employment because of her age in violation of the Minnesota Human Rights Act. Davidson and Goerke defended the employer in the district court and obtained summary judgment based on the employer’s legitimate reasons for the termination and the employee’s lack of evidence of discrimination. Davidson and Goerke also represented the employer before the court of appeals and successfully argued to uphold the summary judgment decision and dismissal. The court of appeals agreed that the termination was legitimate and that the employee’s complaints about the decision did not establish discrimination. The case is Apel v. Mankato Rehabilitation Center, Inc., No. A18-0745 (Minn. App. Feb. 4, 2019).
STEVEN BADER, RAJKOWSKI HANSMEIER WINS JURY TRIAL IN BURN INJURY CASE
Attorney Steven Bader obtained a defense verdict on behalf of a homeowner in a burn injury case brought by a minor child in Carver County. The minor plaintiff fell into a fire ring on the homeowner’s property during a Fourth of July celebration in 2009. The fire ring sat roughly in the middle of the backyard. The homeowner consistently kept a fire going throughout her multi-day Fourth of July gathering as way to “keep the home fires burning.” The homeowner placed several inflatable/ plastic children’s pools on one side of her backyard, away from the fire pit, for her child guests to enjoy. The minor plaintiff visited the gathering with her stepmother and her father. The accident happened when the stepmother left the backyard and went inside the home to tend to an infant child. At that point, the plaintiff and another child or children were running around the backyard and the minor plaintiff fell in the fire pit. She sustained burn injuries to her arms and legs that resulted in permanent scarring. The jury found the homeowner was not negligent and not liable for the plaintiff’s accident.
GEORGE SOULE AND MELISSA STULL, SOULE & STULL WIN DEFENSE VERDICT IN NEW YORK STATE
George W. Soule and Melissa R. Stull, Soule & Stull LLC, Minneapolis, helped their client win a defense verdict in Nielsen v. Vermeer Manufacturing Company in Suffolk County, New York. Plaintiff claimed that Vermeer’s brush chipper was defective in design and Vermeer failed to provide adequate warnings and instructions for its safe use. After two weeks of trial, at the end of the evidence, the court granted Vermeer’s motion to dismiss the design defect claim but submitted the failure-to-warn claim to the jury. The jury deliberated about one hour before returning a defense verdict, finding that Vermeer did not fail to provide adequate warnings and instructions for the brush chipper.
KEVIN GRAY AND STEVEN BADER, RAJKOWSKI HANSMEIER, WIN JURY TRIAL IN MULTI-MILLION DOLLAR CASE
Attorneys Kevin Gray and Steven Bader obtained a defense verdict on behalf of a homeowner’s association in a multimillion-dollar lawsuit. The plaintiff became a C4, C5, C6 quadriplegic after he dove into shallow water from a lakeside dock owned by the homeowners’ association. The plaintiff sued the association and a nearby resort, Breezy Point. The plaintiff was a guest of the resort but stayed in the association apartment complex as some members of the association were part of the Breezy Point rental pool. While the plaintiff, a Canadian citizen, was an experienced swimmer and diver, he had never visited this particular lake prior to the accident and had not entered the water prior to his dive. The accident occurred around dusk, at the end of the dock where the water was approximately three feet deep, although estimates varied among the witnesses. The dock and grounds did not include a “No Diving” sign but did display a “Swim at your Own Risk” sign. The plaintiff alleged the defendants failed to warn him of the shallow water. He also alleged that the length of the dock (120’) suggested it led to deep water. Fact witnesses testified that the water was clear and the bottom was visible. The plaintiff had a significant blood alcohol concentration at the time of the accident. The jury ultimately determined that the homeowner’s association was not negligent and had no liability for the unfortunate accident.
MARK WHITMORE, BASSFORD REMELE, OBTAINS FAVORABLE MEDICAL MALPRACTICE JURY VERDICT
Mark Whitmore, Bassford Remele, recently received a defense verdict in a jury trial venued in Hennepin County District Court. The medical malpractice lawsuit alleged that the firm’s client, a podiatric surgeon, negligently performed an ankle fusion surgery which allowed certain hardware to fail and cause pain throughout the patient’s
TROY POETZ, RAJKOWSKI HANSMEIER, OBTAINS FAVORABLE VERDICT
Troy Poetz recently obtained a favorable jury verdict in an auto accident case in Ottertail County. The case involved a rear-end collision in which the plaintiff claimed to have sustained a permanent neck injury and TBI. The plaintiff went on to receive substantial treatment including radiofrequency neuorotomies. Plaintiff’s experts were Dr. David Ketroser and Dr. Rodney Swenson, and both testified that the plaintiff would need ongoing treatment for the rest of her life. An offer of judgment was made by defendant for $45,000 prior to trial. The jury awarded $39,000. A $9,000 PIP offset will reduce the award to $30,000.
DAVID CAMAROTTO AND JANINE LOETSCHER, BASSFORD REMELE, OBTAIN CONSTRUCTION DEFECT JURY VERDICT
David Camarotto and Janine Loetscher, Bassford Remele, recently received a defense verdict following a jury trial in Dakota County District Court. The construction defect lawsuit alleged that the firm’s client, a general contractor, breached its construction contract and negligently performed its remediation work on the plaintiff’s home. The plaintiff, who also alleged breach of warranties and negligent and fraudulent misrepresentation, sought damages of $200,000. The jury made a finding of no liability and returned a verdict in favor of defendant on all counts. The jury also awarded defendant the full amount of its counterclaims for breach of contract and equitable relief.
TROY POETZ, RAJKOWSKI HANSMEIER, OBTAINS DEFENSE VERDICT
Troy Poetz, Rajkowski Hansmeier, obtained a defense verdict in a wrongful death case tried in Martin County in July. The case involved a furnace that was allegedly installed improperly in the defendant’s ice fishing house. The decedent was a 21-year-old female who died from carbon monoxide exposure. The decedent and five others
DAVID HUTCHINSON AND ANDREA HOVERSTEN, GERAGHTY, O’LOUGHLIN & KENNEY, P.A., OBTAIN DEFENSE VERDICT IN MEDICAL MALPRACTICE CASEDavid Hutchinson and Andrea Hoversten, Geraghty, O’Loughlin & Kenney, P.A., recently obtained a defense verdict in a medical malpractice case following a jury trial in St. Louis County. The plaintiff claimed defendant neurosurgeon negligently performed a decompressive hemilaminectomy and discectomy procedure. Defendants denied negligence. After a seven-day jury trial, the jury concluded there was no negligence.
SHANNON NELSON AND BRIAN MEEKER SUCCESSFULLY DEFEND PERSONAL INJURY CASE INVOLVING MOTORCYCLE SHOP
Shannon Nelson and Brian Meeker — State Auto House Counsel / Law Office of Brian A. Meeker — successfully defended a custom motorcycle shop in a personal injury case in Washington County District Court. The jury found in favor of the defendant, rejecting the plaintiff’s claim that a larger-than-stock tire provided by the defendant caused her to lose control and crash. The plaintiff made numerous customizations to her motorcycle in the winter months preceding the April 2014 accident, but had not road-tested the bike before shipping it from Minnesota for a group ride in Nevada and Arizona. The accident occurred the first time the plaintiff accelerated to highway speed in heavy traffic on a busy Las Vegas freeway. The defendant showed that the physical evidence failed to support the plaintiff’s theory that the rear tire was the cause. Just as significantly, the defendant proved that rider error — including unfamiliarity with multiple, significant modifications — was the more likely cause. In addition to serious physical injuries, the plaintiff claimed a seven-figure future loss of income resulting from an alleged inability to work as a commercial airline pilot. The defendant presented evidence showing that accident-related orthopedic injuries were not precluding the plaintiff’s return to flight status. The facts instead suggested that drug abuse, depression, and long-standing complaints of headaches would have presented very significant hurdles to her ever returning to the cockpit.
AMIE PENNY SAYLER AND MARK WHITMORE, BASSFORD REMELE, P.A., WIN APPELLATE CASE INTERPRETING EXPERT REVIEW STATUTE
Amie Penny Sayler and Mark Whitmore, Bassford Remele, P.A., recently obtained a favorable ruling from the Minnesota Court of Appeals. In a published decision, the court of appeals held that Minnesota Statutes section 145.682, the expert review statute that governs medical malpractice cases, requires the plaintiff to disclose experts no later than 210 days from commencement of the action. For many years, section 145.682 required a plaintiff to disclose experts within 180 days of commencement of the action. After the supreme court modified the Rules of Civil Procedure to require discovery conferences, in 2014 the Plaintiff’s bar successfully lobbied for an amendment to Minn. Stat. § 145.682 to “maintain the status quo” by changing the statute to require Plaintiff to disclose experts “within 180 days of commencement of discovery.” In this case, neither a discovery conference nor formal discovery ever commenced, despite the passage of nearly 250 days following commencement of the action. Affirming the trial court’s dismissal of the matter (and remanding on other grounds), the court of appeals held that the proper interpretation of the new version of section 145.82 requires that experts must be disclosed no later than 210 days from commencement of the action. This would allow up to 30 days for the discovery conference plus an additional 180 days to disclose experts. Plaintiff did not seek further review of this published decision.
BARRY O’NEIL AND MICHELLE KUHL, LOMMEN ABDO, P.A., OBTAIN DEFENSE VERDICT IN LEGAL MALPRACTICE CASE
Barry O’Neil and Michelle Kuhl obtained a defense verdict in a legal malpractice case following a jury trial in Hennepin County. The attorney in the underlying matter represented the plaintiff in his divorce, and the plaintiff claimed that he would have obtained a better result in his divorce settlement had the lawyer provided additional
BRIAN STEFFES AND AMY SIEBEN, FISHER BREN & SHERIDAN, WIN JURY TRIALMDLA members Amy Sieben and Brian Steffes obtained a $2.2 million jury verdict, in an insurance subrogation action, on behalf of a general contractor following a two-week trial in January. The case involved a breach of a construction contract by a subcontractor. The jury agreed that the framing subcontractor was at fault for the breach, despite its defenses of impossibility and undue hardship. With applicable set-offs, costs and interest, the final judgment totaled over $2.5 million.
PAUL WOJCIAK AND KEVIN PILLSBURY, JOHNSON, KILLEN & SEILER, WIN SUMMARY JUDGMENT FOR CHILDCARE PROVIDER IN SKULL FRACTURE SUIT
Paul Wojciak and Kevin Pillsbury, Johnson, Killen & Seiler, Duluth, Minnesota, recently obtained summary judgment in favor of a childcare provider on a claim brought by the mother of a five-month-old who incurred a skull fracture. Plaintiff dropped the child off at Defendant’s in-home childcare and was notified ten minutes later that the child had vomited, become lethargic, and that his head was swelling rapidly. The child was taken to a local hospital where he was assessed with a skull fracture. The childcare provider denied any incident occurred that could have caused the injury. The child’s medical records showed the child had been suffering from continuous vomiting and lethargy for two weeks prior to the date of the alleged incident, with a possibility for mixed-age and non-acute subdural hematoma and fluid. Plaintiff’s expert opined the skull fracture had been sustained on the date in question, but in light of the child’s medical history, failed to sufficiently opine that the fracture and prior symptoms could not be attributed to a prior incident. Defendant moved for summary judgment on the issue of causation, arguing that the child’s medical history presented obscure and abstruse medical factors of which a jury could not reasonably possess well-founded knowledge, leaving it to impermissibly speculate as to the cause of the child’s injuries. The court granted summary judgment holding that, in light of the child’s medical history, Plaintiff’s expert’s opinion was insufficient to establish the child’s injuries could be directly tied to the conduct of the childcare provider.
JESSICA SCHWIE AND TESSA McELLISTREM, JARDINE, LOGAN, & O’BRIEN, PLLP, OBTAINED A DIRECTED VERDICT
Congratulations to Jessica Schwie and Tessa McEllistrem, Jardine, Logan, & O’Brien, PLLP, who successfully obtained a directed verdict in a defamation case after three days of trial in Scott County. The court held that there was no evidentiary basis for a reasonable jury to find that plaintiff suffered any harm to her reputation, as required for defamation.
STEVEN BADER, RAJKOWSKI HANSMEIER, WINS THREE-DAY JURY TRIAL
Steven Bader of Rajkowski Hansmeier recently won a threeday jury trial in Duluth. The plaintiff alleged bodily injury in an automobile accident. The defense vehicle lost control on icy roads, struck a concrete median, and ricocheted back into the plaintiff’s vehicle as she traveled on I-35. The plaintiff alleged the accident caused injuries that ultimately resulted in a fusion of her lumbar spine. The defense argued the accident occurred due to winter weather conditions and not because of negligent driving conduct. Additionally, the defense argued the only injury the plaintiff suffered in the accident was a temporary cervical sprain/strain that resolved on its own, and the low back injury was not caused by the motor vehicle accident. The jury found no negligence on the defendant. Additionally, it found the plaintiff did not sustain a low back injury in the accident, and as a result, did not meet any of the Minnesota tort thresholds.
KEVIN GRAY AND TROY POETZ, RAJKOWSKI HANSMEIER, WIN 12-DAY TRIAL
Congratulations to MDLA members Kevin Gray and Troy Poetz who recently prevailed following a 12-day trial in Wright County. The case involved a farm tractor towing a plow on a county road and in the dark. The plow was between 6-8 feet over the center line. The Plaintiff, a 17-year old driver who sustained a severe brain injury, claimed that the plow was insufficiently lit, that the tractor lights blinded him, and that the plow was in “field mode” rather than “road mode.” Defendants tendered the farmer’s $1 million policy limits, which the Plaintiff rejected. Although the jury found damages of approximately $6.5 million, it allocated 55% fault to the Plaintiff , barring any recovery.
BASSFORD REMELE WINS THREE JURY TRIALS
Cecilie Loidolt, Bassford Remele, recently received two jury defense verdicts in medical malpractice trials in Hennepin County. In the first case, plaintiff alleged that the defendants negligently performed a laminectomy and discectomy resulting in cauda equina syndrome, and permanent neurological injury. Plaintiff’s counsel asked the jury for $3 million in damages. The jury returned a verdict in favor of the defendant orthopedic surgeon and his clinic in less than an hour of deliberations. In the second case, plaintiff alleged negligent failure to diagnosis a post total knee arthroplasty complication resulting in pain and suffering, and the need for a revision surgery. Mark Bradford, Bassford Remele, recently received a defense verdict in a case in which the plaintiff asserted claims for malicious prosecution, abuse of process, fraud, unjust enrichment, civil conspiracy, and punitive damages. The jury found for the defendant on all claims.
BEN MCANINCH, BLETHEN, GAGE & KRAUSE, OBTAINS DEFENSE VERDICT
Ben McAninch obtained a defense verdict in a motor vehicle accident case following a two-day jury trial in Waseca County. This case involved an auto vs. bicycle collision that, according to the plaintiff, resulted in a traumatic brain injury. The plaintiff claimed that the defendant was driving too fast for the conditions and failed to maintain an appropriate lookout. The defendant claimed that the accident was the fault of the plaintiff for failing to yield and for performing an improper turn on his bicycle. The parties tried only the issue of liability. The jury returned a verdict of 100% liability on the plaintiff.
JESSICA SCHWIE AND TESSA McELLISTREM, JARDINE, LOGAN & O’BRIEN, PLLP, WIN AT THE EIGHT CIRCUIT AND SUCCESSFULLY DISMISS A CLASS ACTION
Tessa McEllistrem and Jessica Schwie prevailed before the Eighth Circuit in a case of first impression in the matter of Pena v. Freeborn County, No. 16-2756. The Eighth Circuit affirmed dismissal of a §1983 procedural due process claim and a Peace Officer Disciplinary Act (PODPA) claim arising out of a job termination. The court held that Pena, a former Jail Administrator for Freeborn County, was afforded all constitutional due process that was required because he was notified of the employment misconduct charges against him months before his termination notice and he had repeated opportunities to tell his side of the story; both before and after the termination of his employment. Moreover, the Eighth Circuit held that Pena was not entitled to the protections afforded under the PODPA because; even though he held a peace officer license, he was not “charged” with the protection and detection of crime within the meaning of the statute. They also successfully dismissed a class action regarding Wabasha County’s “Safe Driving Program.” The plaintiffs sought reimbursement from the Cities of Wabasha, Lake City, Plainview and the County of Wabasha, for money they voluntarily paid to be put in a safe driving class after each plaintiff received a traffic citation. The Safe Driving Program was offered to the plaintiffs as an alternative to a traffic citation. If the plaintiffs attended the Safe Driving Program, their ticket was dismissed and no record of the citation was made. The price of the program was equivalent to the price of each plaintiff’s traffic citation. After the program was deemed unlawful by Wabasha County District Court pursuant to Minn. Stat. § 169.999 and Wabasha was enjoined from operating the program, the plaintiffs then initiated a class action in which they argued that they should be reimbursed the cost of the Safe Driving Course since it was deemed unlawful, but that the benefit of dismissal of their traffic citations remain in effect. Judge Leahy held that the entirety of plaintiffs’ claims be dismissed pursuant to the voluntary payment doctrine and, moreover, Judge Leahy held that plaintiffs failed to show any injury-in-fact because each plaintiff benefitted from the Safe Driving Program by not having traffic citations recorded on their driving records.
GINA UHRBOM, BROWN & CARLSON, WINS AT THE MINNESOTA SUPREME COURT
Gina Uhrbom, Brown & Carlson, recently obtained a favorable decision from the Minnesota Supreme Court in a workers’ compensation appeal. The Compensation Judge had originally issued a Findings and Order finding the employee not credible and that the alleged work injury did not “arise out of” the employee’s employment, and thus completely denied the employee’s claims. The Workers’ Compensation Court of Appeals reversed and awarded compensation. It opined that the employee’s job duties, in fact, increased a risk of injury, and also determined that the employee’s rushing, specifically, had increased her risk of injury. Previously, the Compensation Judge had determined that the employee’s alleged reason for rushing, to avoid overtime, was not credible because the employee routinely worked overtime. Furthermore, the employee was unable to identify any reason for her fall and, in fact, testified she did not know why she fell. The Minnesota Supreme Court reversed the WCCA, holding the WCCA is not allowed to abandon the appropriate standard of review and substitute its own judgment for that of a Compensation Judge: “The W.C.C.A. is not to substitute its view of the evidence for that adopted by the Compensation Judge if the Compensation Judge’s findings are supported by evidence that a reasonable mind might accept as adequate.” Based on its review of the record, the supreme court determined that the WCCA had “clearly and manifestly erred by rejecting findings that were supported by substantial evidence.” Mark Kleinschmidt of Cousineau, Waldhauser & Kieselbach, P.A., wrote and submitted an amicus brief on behalf of the MDLA.
CECILIE LOIDOLT, BASSFORD REMELE, WINS BACK-TO-BACK MEDICAL MALPRACTICE TRIALS
Cecilie Loidolt, Bassford Remele, recently received a directed verdict and a defense verdict in back to back medical malpractice trials. The first case was tried on a res ipsa loquitor theory in Hennepin County against a pro se plaintiff who alleged that the defendant gynecologist was negligent during the performance of a surgery to remove an ovary that was suspicious for cancer. During the operation, a small piece of a medical device broke off, an occurrence that was unknown to the defendant gynecologist at the time of the operation. The piece of the device caused no pain or symptoms to the plaintiff, and was removed only after it was discovered on an X ray following an automobile accident. Following the close of Plaintiff’s case—which was unsupported by any expert testimony—the court granted Defendants’ motion for judgment as a matter of law. The second case was also tried in Hennepin County against a plaintiff who claimed that the defendant ophthalmologist failed to inform her of the risk of increased dry eye with Lasik surgery. The evidence showed that the plaintiff received information about the risk of dry eye at least six times before the surgery, via oral discussions, written information, and a video. The evidence also showed that the plaintiff had mild dry eye before the surgery, and had mild dry eye after the surgery, and that the dry eye symptoms were based on her own subjective complaints, not objective evidence on exam. Plaintiff’s counsel asked the jury for $13,000,000 in damages. The jury returned a verdict in favor of the defendant ophthalmologist and his clinic.
JASON M. HILL AND JESSICA E. SCHWIE, JARDINE, LOGAN & O’BRIEN, P.L.L.P., SECURE SUMMARY JUDGMENT
Jason M. Hill and Jessica E. Schwie recently obtained summary judgment behalf of an insurance company in a non-compete case. The plaintiff, an independent adjusting firm, argued that a former employee/adjuster breached non-compete and non-solicitation covenants by seeking and obtaining employment “in-house” with the defendant insurance company. The plaintiff also claimed the insurance company tortuously interfered with its former employee’s contract. The court found the restrictive covenants invalid because (1) it was undisputed that the employee signed the covenants after he had started working for the plaintiff, and (2) the covenants were not supported by necessary independent consideration. Even if the plaintiff had presented evidence of independent consideration, the court determined its claims would fail because (1) the employee’s right to earn a livelihood outweighed the plaintiff’s business interests, and (2) any loss of revenue to the plaintiff’s business was not caused by the employee’s decision to work for the insurance company. The court found a lack of sufficient business interest because the plaintiff’s customers (various insurance companies) were not the same as the defendant insurance company’s customers (policyholders), and therefore, there was no competition. MDLA member Morgan A. Godfrey of O’Meara, Leer, Wagner & Kohl, P.A. also successfully advised defendant insurance company prior to the commencement of suit.
BECKY MOOS AND CHRISTINE HINRICHS, BASSFORD REMELE, P.A., OBTAIN MEDICAL MALPRACTICE DEFENSE VERDICT
Becky Moos and Christine Hinrichs obtained a defense verdict in a medical malpractice wrongful death suit. Plaintiff claimed that a patient who had been admitted for chest pain should have been on bedrest, which would have prevented his fall, paralysis, and subsequent death. The jury found no negligence by the cardiologist who ordered the patient should be up ad lib.
DANIEL OLSON, BASSFORD REMELE, P.A. OBTAINS DEFENSE VERDICT
Daniel Olson obtained a defense verdict in a defamation case following a three-day jury trial in Hennepin County. The plaintiff sued the defendant healthcare system, alleging that she was defamed by a notice posted in a hospital stating that she had been permanently suspended from selling medical devices at defendants’ facilities. The jury determined that the statement at issue was not defamatory.
HANNAH FELIX AND JESSICA SCHWIE, JARDINE, LOGAN & O’BRIEN, PLLP, OBTAIN DISMISSAL OF FEDERAL ADA CLAIMS
Hannah Felix and Jessica Schwie of Jardine, Logan & O’Brien, PLLP obtained an order for summary judgment dismissing the federal ADA claims brought by Plaintiff David B. Ketroser against Asphalt Driveway Company of St. Paul. Ketroser alleged that: (1) the handicap parking space was not located on the shortest accessible route from adjacent parking to an accessible entrance; (2) the slope of the handicap parking space and access aisle were too steep; and, (3) the curb ramp did not have flared sides in violation of the ADA. In her Report and Recommendation, Magistrate Judge Mayeron held that Ketroser’s status as an “ADA tester” was not sufficient to confer standing, but rather, like any plaintiff, he must demonstrate that he indeed suffered a cognizable injury in fact that will be redressed by the relief sought. Magistrate Mayeron determined that Ketroser lacked standing to assert his ADA claims under Title III because (1) he failed to show any injury resulting from the alleged architectural barriers; and, (2) he did not demonstrate a reasonable likelihood of returning to the premises for reasons other than to confirm whether the barriers had been removed. District Court Judge Donovan Frank adopted the Report and Recommendation. Ketroser’s state law MHRA claims were remanded to Hennepin County District Court, and voluntarily dismissed.
DAVID CAMAROTTO AND JESSICA KLANDER, BASSFORD REMELE, PA, OBTAIN DEFENSE VERDICT
David Camarotto and Jessica Klander, Bassford Remele, PA, obtained a defense verdict in a premises liability action following a 4-day jury trial in Hennepin County. The plaintiff sued the defendant hospital alleging that defendant was negligent in the maintenance of its facility, particularly in regard to the slip-resistant strips on a set of stairs, resulting in plaintiff’s fall. Plaintiff suffered a ruptured patella tendon, and sought damages in excess of $1 million. The jury returned a defense verdict finding no negligence.
BECKY MOOS AND SARAH HOFFMAN, BASSFORD REMELE, PA, OBTAIN MEDICAL MALPRACTICE DEFENSE VERDICT
Becky Moos and Sarah Hoffman, Bassford Remele, PA, obtained a defense verdict following a 6-day trial in Hennepin county. Plaintiff claimed that the general surgeon who examined her was negligent in failing to diagnose a rectal infection that resulted in a necrotizing infection 2 days later causing her to need a permanent colostomy.
NICOLE BRAND, MEAGHER & GEER, PLLP, OBTAINS DEFENSE VERDICT
Nicole Brand, Meagher & Geer, PLLP, obtained a defense verdict in a medical malpractice action following a 5-day jury trial in St. Louis County. The plaintiff sued the defendant hospital alleging defendant nursing staff were negligent in the provision of care resulting in plaintiff’s fall, which plaintiff alleged caused a compression fracture of the lumbar spine. Plaintiff sought damages in excess of $1.5 million. The jury, however, returned a defense verdict finding no negligence.
ANDREA REISBORD AND BETH JENSON PROUTY, BASSFORD REMELE, SUCCESSFULLY RESIST DEMAND FOR APPRAISAL
Bassford Remele attorneys Andrea Reisbord and Beth Jenson Prouty recently obtained the dismissal of a contract action demanding an appraisal. The insured, Northern Promotions, claimed that its property had been damaged in a May 28, 2012 hailstorm but did not report the loss to its insurance company, QBE, until May 22, 2014. QBE promptly investigated the claim and issued payment. During the investigation, the adjuster found interior damage but determined, based on staining, that the damage was fairly new, and thus QBE determined that the loss occurred outside of its policy period. The adjuster also determined that other damage observed was wear and tear. Dissatisfied with the adjustment, Northern requested in March 2015 that QBE reconsider and re-evaluate the damages, which it did, finding no other covered damages and so advising the insured in July 2015. Thereafter, the insured demanded appraisal, and QBE responded that appraisal was barred by the 2-year suit limitations provision in its policy. After QBE refused to name an appraiser, Northern sued in state court, both demanding an appraisal and alleging that appraisal should proceed with Northern’s chosen appraiser and a neutral only. The matter was removed to United States District Court, and, in lieu of answering, QBE moved to dismiss. Judge Ann Montgomery granted QBE’s motion and denied Northern’s motion to compel appraisal, finding that the suit limitations provision applied to demands for appraisal and that QBE’s actions — initially adjusting the loss, and later reconsidering after the 2-year limitations period had run — was not a waiver and did not stop it from relying on the terms of its policy.
GERALD BREN, JENNIFER OLSON, FISHER BREN & SHERIDAN, OBTAIN SUMMARY JUDGMENT IN SLIP AND FALL CASE
Gerald Bren and Jennifer Olson of Fisher Bren & Sheridan LLP obtained an order for summary judgment dismissing the claims against their client, the owner of a shopping mall. The plaintiff slipped and fell while she was walking across the mall parking lot during an active and ongoing snowstorm. Plaintiff’s own testimony established that the snow was blowing and drifting and that she was aware of the significant snow accumulation when she began walking across the parking lot. Defense counsel sought dismissal of all claims, arguing their client did not owe a duty to remedy the allegedly hazardous condition of the parking lot until a reasonable time after completion of the storm. The plaintiff opposed the motion, arguing extraordinary circumstances existed including that the parking lot ice existed prior to the snowstorm. The court rejected this argument based on the lack of evidence, noting that the plaintiff had successfully navigated the same route to work earlier in the day. Plaintiff also argued that because the mall had conducted salting activities earlier in the day, they thereby opened themselves up to a higher standard, which compelled further action. The court also rejected this argument on the basis that taking corrective action during an ongoing storm does not change the premises owner’s duty.
BRADLEY FISHER, MICHAEL BREEN, FISHER BREN & SHERIDAN, OBTAIN PARTIAL SUMMARY JUDGMENT IN SEWER BACKUP CASE
Bradley Fisher and Michael Breen of Fisher Bren & Sheridan LLP obtained an order for partial summary dismissing cross-claimant’s promissory estoppel claim and enforcing a limitation of liability clause. The lawsuit arose from a sewer backup into plaintiffs’ home. After the backup, the developer paid to repair plaintiffs’ home and for living expenses during the repair. The developer sought to recover those expenditures from the wastewater operator, which was represented by Fisher Bren & Sheridan. The developer based its crossclaim in part on a promissory estoppel theory. Judge Galler dismissed the promissory estoppel claim because the developer failed to prove all elements of the claim and the claim, was precluded by contract. Judge Galler also found enforceable the limitation of liability clause because the developer failed to prove a disparity of bargaining power or that the limitation is contrary to public policy.
BRADLEY FISHER, JENNIFER OLSON, DOUGLAS MAC ARTHUR, FISHER BREN & SHERIDAN, OBTAIN SUMMARY JUDGMENT IN CONSTRUCTION DEFECT CASE
Bradley Fisher, Jennifer Olson and Douglas Mac Arthur of Fisher Bren & Sheridan LLP obtained an order for summary judgment dismissing all claims against their clients, the owner and developer of a multi-family townhome development in Minneapolis. The plaintiff HOA alleged various construction deficiencies resulting in condensation and moisture-related damage to the project. The Court dismissed the non-statutory warranty claims as barred by the two-year statute of limitations in Minn. Stat. § 541.051, and further dismissed the 327A statutory warranty claims based on the plaintiff’s failure to give written notice within six months of discovering the loss.
GERALD BREN, JENNIFER OLSON, FISHER BREN & SHERIDAN, OBTAIN DEFENSE VERDICT IN SLIP AND FALL CASEGerald Bren and Jennifer Olson of Fisher Bren & Sheridan LLP obtained a defense verdict for their client, a travel center and truck stop, in a case venued in Wisconsin. The plaintiff slipped and fell on snow and ice in the travel center parking lot. The area of the fall had been salted earlier in the day. Plaintiff observed the snow and ice prior to exiting his vehicle and stomped on the ice and snow prior to his fall to test it for slipperiness. Despite this, the plaintiff claimed the travel center failed to maintain the premises as safe as the nature of the business would reasonably permit, violating Wisconsin’s Safe Place Statute. The jury disagreed, finding the travel center did not fail in its duties, that the plaintiff was negligent, and the plaintiff’s negligence was a cause of his injuries. Plaintiff did not claim wage loss. Both medical experts agreed the plaintiff did not require future medical treatment, and the parties stipulated to the amount of past medical bills. The jury awarded zero damages for past and future pain and suffering.
CECILIE LOIDOLT, BASSFORD REMELE, OBTAINS DEFENSE VERDICT IN DELAYED DIAGNOSIS CASE
Cecilie Loidolt, Bassford Remele, obtained a defense verdict in a medical malpractice case involving a claim of failure to communicate pathology report results showing atypical lobular hyperplasia, a marker for an increased risk of breast cancer. The failure to communicate caused a delay in diagnosis of breast cancer, a reduced chance of survival, and need for more aggressive treatment. Plaintiff was diagnosed with stage IV breast cancer after an alleged 18-month delay. The jury found no negligence on the part of defendants; found negligence on the part of plaintiff; and was required to answer the damages questions, finding zero damages.
RICHARD MAHONEY, THE MAHONEY LAW FIRM, ENJOYS SUMMARY JUDGMENT WIN
Dick Mahoney obtained summary judgment for his client in a subrogation property damage case in Washington County. His client manufactured a toilet bowl flapper that allegedly plugged up a toilet, which overflowed causing more than $100,000 damage. The homeowners’ insurer sued both his client and the toilet manufacturer. Mr. Mahoney, the third lawyer on the case for his client, discovered that the case had not been sued out until a year after the two-year statute for improvements to real property had run. He sought summary judgment based on Minn. Stat. § 541.051. Granting summary judgment, the court held that a toilet was an improvement to real property and rejected the plaintiff’s argument that the toilet was a piece of equipment or machinery that fell within the exception to the two-year statute of limitations. The court observed that an exception to the statute of limitations should be used only in exceptional circumstances. Since the plaintiff did not prove that the toilet was encompassed under the exception for machinery and equipment, and the action had been commenced more than two years after the discovery of the damage, it was barred by the statute. Dick wishes to remind everyone that when you get a new case, always check the statute of limitations.
DYAN EBERT, LAURA MOEHRLE, AND MIKE LAFOUNTAINE, QUINLIVAN AND HUGHES, OBTAIN COURT OF APPEAL VICTORY IN “BUY THE LIEN” CASE
In April, the Minnesota Court of Appeals issued a published decision in Auers v. Progressive Insurance Company in favor of Progressive, represented by Quinlivan & Hughes, holding (1) a subrogee that has negotiated a discount of medical expenses may not assert a subrogation right for that discount under Swanson v. Brewster, and (2) an injured Plaintiff who purchases the subrogation interest of a health insurance carrier is not entitled to recover the amount of the negotiated discount. This decision rejects an argument that has been advanced by plaintiffs since the 2010 Minnesota Supreme Court decision in Swanson v. Brewster — namely that a plaintiff can buy and assert a health insurer’s subrogation right, and prevent both the amount paid and amount of the discount received by the health insurer from offsetting a damages award as a collateral source.
LOUISE BEHRENDT AND MICHAEL KREIDLER, STICH, ANGELL, KREIDLER, UNKE & SCATTERGOOD, P.A., OBTAIN SUMMARY JUDGMENT
Louise Behrendt and Michael Kreidler from the Stich Angell firm obtained summary judgment in a Hibbing- based defamation case involving alleged false statements made by the Chisholm Ambulance Service and several Emergency Medical Technicians, about the conditions in which a vulnerable adult was found during an emergency call. In a 26 page Order issued by St. Louis County District Court Judge Mark Starr on March 7, 2016, the court found that the plaintiffs failed to meet their burdens of proof with regard to the essential elements of defamation, that the defendants were entitled to the immunity conferred by the Minnesota Vulnerable Adults Act, and that dismissal was warranted under the Minnesota law which prohibits strategic lawsuits against public participation (the anti-SLAPP Act). The court also granted the Ambulance Defendants’ request for an award of attorney’s fees and costs allowed under the anti-SLAPP Act.
LOUISE BEHRENDT, FORMERLY WITH THE STICH ANGELL FIRM, WINS SUMMARY JUDGMENT IN HORSE BITE CASE
Louise Behrendt, formerly with the Stich Angell firm, obtained summary judgment in a horse bite case, on behalf of the owner of a Woodbury stable. The plaintiff kept two horses at the defendant’s stable and executed a horse boarding agreement containing an exculpatory clause in which plaintiff acknowledged that horse-related activities were inherently dangerous and that even the most docile horse might bolt, spook, buck, kick, bite, or otherwise cause injury. The plaintiff later sustained injury when she was bitten in the face by a horse owned by another boarder. In an Order issued on April 7, 2016, Washington County District Court Judge Gary Schurrer concluded that Plaintiff’s claims were barred by the exculpatory clause, finding it clear and unambiguous and that it permissibly exculpated only ordinary negligence arising out of horse-related activities. The court also found no evidence suggesting that the defendant had prior knowledge of any vicious or aggressive tendencies on the part of the subject horse, a longstanding requirement for liability in animal injury cases in Minnesota.
PETER LIND AND KATHLEEN CURTIS, TEWKSBURY & KERFELD, OBTAIN SUMMARY JUDGMENT IN AN E & O CASE AGAINST AN INSURANCE AGENT
The injured party presented a liquor liability claim against a bar. The insurer for the bar denied coverage and the bar blamed its insurance agent for the lapse of the policy. A Miller-Shugart agreement was made, the E & O claim was assigned, and some money was paid by the bar’s insurer to effect dismissal of the declaratory judgment action. The Otter Tail County District Court dismissed the case on the basis that the assignment, otherwise valid with an insurance agent E & O claim, was defective because it was conditioned upon a determination that there was no liquor liability coverage, the evidence of which was lacking. The court also dismissed the case because a Miller-Shugart agreement is not enforceable against an insurance agent.
STEVE SCHWEGMAN, QUINLIVAN & HUGHES, OBTAINS MEDICAL MALPRACTICE DEFENSE VERDICT
Steve Schwegman of Quinlivan & Hughes obtained a defense verdict in a medical malpractice action on behalf of a general surgeon who saw a patient for an evaluation of a left forearm mass that he concluded was a sebaceous cyst. He removed the cyst and sent it to pathology for analysis. The pathology report concluded the mass was a neurofibroma, a peripheral nerve tumor involving the ulnar nerve. The patient required two subsequent operations including a sural nerve graft and tendon transfer at the Mayo Clinic. Plaintiff alleged the general surgeon was negligent in failing to recognize he was dealing with a peripheral nerve tumor, in failing to refer the patient to a specialist, and in severing the ulnar nerve, resulting in permanent injuries to the left arm and hand. Plaintiff was a piano player. No settlement offers were extended. Medical expenses and wage loss were in excess of $89,000. Plaintiff retained an upper extremity expert. The defense called a general surgeon and neurosurgeon, both of whom supported the care provided. The jury returned a verdict concluding the physician was not negligent in his care and treatment of the patient.
CECILIE LOIDOLT AND KELLY PUTNEY, BASSFORD REMELE, OBTAIN DEFENSE VERDICT IN “BIRTH INJURY” MALPRACTICE CASE
Cecilie Loidolt and Kelly Putney obtained a defense verdict in a medical malpractice “birth injury” case venued in federal court. The verdict followed a three week trial in which it was claimed that a fetal heart rate monitor showed abnormalities during labor that were indications for an earlier c-section; and that an anoxic injury occurred in the last hour before birth, severe enough to cause severe global hypoxic ischemic encephalopathy and cerebral palsy. Plaintiff’s counsel requested a verdict in excess of $17 million, $15.8 million of which was for future life care costs. The jury found no negligence after one hour of deliberations.
MDLA AMICUS COMMITTEE SUCCESSFULLY PERSUADES EIGHTH CIRCUIT IN ATTORNEY WITHDRAWAL CASE
The Eighth Circuit recently issued a much-anticipated decision creating new and helpful law on when an attorney can withdraw from a federal case. Reversing the district court, the Eighth Circuit permitted the Larkin Hoffman law firm to withdraw from representation of a client that had failed to pay its legal fees, and also failed to cooperate in providing information critical to the defense. In its ruling, the court essentially adopted the positions advocated by the MDLA in its amicus brief. The amicus brief was prepared on behalf of the MDLA by Fred Finch, Bassford Remele, P.A.
LOUISE BEHRENDT AND MICHAEL KREIDLER, STICH ANGELL, OBTAIN SUMMARY JUDGMENT IN TRAUMATIC BRAIN INJURY NEGLIGENCE CASE
Louise Behrendt and Michael Kreidler from the Stich Angell firm obtained summary judgment for ABRA Automotive Systems in a traumatic brain injury negligence case concerning allegedly deficient auto body repair services provided on a rental vehicle. Plaintiff claimed ABRA failed to properly examine a tire on a rental vehicle damaged in a minor accident, and that as a result, the tire blew and caused a one-car accident four months later. In an Order issued on March 7, 2016 in Hofmann v. Enterprise Leasing Co, et al, Hennepin County District Court Judge Bridget Sullivan concluded that Plaintiff failed to meet his burden of demonstrating that ABRA (and co-defendant Enterprise Leasing Company) owed and breached a duty of care with regard to the tire, and additionally failed to present evidence creating a genuine issue of material fact on the essential element of causation. The summary judgment Order also notes that the Court intends to grant Defendants’ companion motions to exclude the testimony of Plaintiffs’ three expert witnesses, which such order has not yet been released. Defendant Enterprise is represented by Blake Duerre, of the Arthur Chapman firm.
MICHAEL SHARKEY, COUSINEAU MCGUIRE, PREVAILS IN COURT OF APPEALS, WINNING MOST BIZARRE APPEAL AWARD IN THE PROCESS
This case concerned a 90-year-old who passed away from natural causes in nursing home care. The next of kin was convinced of foul play and would not let Crescent Tide, the funeral home, bury or cremate the body. Crescent Tide tried, over the course of 20 months, to convince the next of kin to allow for final disposition. An order was sought in district court by Attorney Michael Sharkey, who is also a licensed funeral director, to require that the remains be immediately buried. Sharkey argued, and the district court found, that because the next of kin had failed to act on her duty to control the final disposition, she therefore gave up her corresponding right to control the final disposition. After the burial (with police present for security), the next of kin appealed the order and included a claim that the funeral home must provide a gravemarker. The court of appeals held that the district court could order the remains buried and that no Minnesota law requires a gravemarker.
PETER LIND, TEWKSBURY & KERFELD, OBTAINS DEFENSE VERDICT IN DRAM SHOP SNOWMOBILE DEATH CASE
A death occurred on a snowmobile trail in Nevis, Minnesota and thereafter the family of the decedent sued the three bars where he had been drinking. Minn. Stat. § 340A.801. The last bar impleaded the decedent’s snowmobile companions, asserting a Good Samaritan Law violation, Minn. Stat. § 604A.01, among other claims for contribution and indemnity. The first bar was dismissed on a summary judgment motion; the second bar settled at mediation; the companions were also summarily dismissed; and, the last bar tried the case to a jury in Hubbard County. Gutzwiller, et al v. Bullwinkle’s, 29-CV-14-285. The jury found that Bullwinkle’s did not sell an alcoholic beverage to the decedent at a time when he was obviously intoxicated. It also awarded -0- damages to the family for their loss.
CHRISTIAN PREUS, BASSFORD REMELE, SUCCESSFULLY DEFENDS INSURER
Christian A. Preus prevailed on summary judgment in the Federal District Court for the Southern District of Ohio in a lawsuit in which it was alleged that an insurance policy provided coverage for a pastor who sexually abused two minor members of a church. A jury had awarded the plaintiffs $4,350,000 in damages against the pastor. A lawsuit was then brought against the church’s insurer claiming the insurer should pay for the multi-million-dollar jury award against the pastor. After both sides extensively briefed the legal issues, the court denied the plaintiffs’ motion for summary judgment and concluded there was no coverage available under the church’s insurance policy for the sexual abuse of the two minors, and that the church’s insurer was not obligated to pay any portion of the jury verdict against the pastor.
BARB ZUREK, MEAGHER & GEER, OBTAINS TWO MEDICAL MALPRACTICE DEFENSE VERDICTS
Barb Zurek obtained defense verdicts in two medical malpractice cases. The first followed a five-day jury trial in Hennepin County. The plaintiff sued the defendant neurosurgeon alleging defendant performed the wrong surgery on her spine, one that was too conservative, resulting in the need for a second surgery and permanent disabling injuries. Plaintiff also claimed lost wages and loss of earning capacity, seeking damages in excess of $1.4 million. The jury, however, returned a defense verdict finding no negligence. Barb’s second defense verdict followed a nine-day jury trial in Hennepin County. The plaintiff sued defendants, alleging negligence in the timing and treatment of anastomotic leak post-bariatric surgery resulting in bilateral foot drop and chronic pain. Although the plaintiff sought damages in the range of $10 million, the jury returned a defense verdict finding no negligence.
MICHAEL KLUTHO AND JEFFREY MULDER, BASSFORD REMELE, OBTAIN DEFENSE VERDICT IN LEGAL MALPRACTICE CASE
Plaintiff sued his former attorney alleging attorney negligently advised him to file for Chapter 7 bankruptcy prior to the conclusion of a pending state-court lawsuit. After plaintiff filed for bankruptcy, the court refused to extinguish a debt of $168,000 on grounds of fraud. Defendant denied he gave the advice at issue, and further contested causation and damages. The jury found no negligence as to defendant attorney, found plaintiff was negligent, and found no damages.
CECILIE LOIDOLT, BASSFORD REMELE, OBTAINS DEFENSE VERDICT IN MEDICAL MALPRACTICE CASE
Plaintiff sued an emergency room physician claiming error in diagnosis of urinary tract infection and error in treatment of the same with Ciprofloxacin, resulting in an adverse reaction to Cipro including tendinopathy, myalgias, and arthralgias. Plaintiff sought an award of damages of approximately $2,000,000; claiming pain and suffering, and past and future medical expenses as well as loss of earnings and earnings capacity. The plaintiff was a special education teacher earning approximately $60,000 per year. The jury found no negligence and was not required to answer the damages questions.
BRIAN WOOD, BILL DAVIDSON, AND PETER STITELER, LIND, JENSEN, SULLIVAN & PETERSON, WIN COURT OF APPEALS CASE
Brian Wood, Bill Davidson, and Peter Stiteler successfully defended their clients, a rental car company and its insurer, against a declaratory judgment action brought by a plaintiff passenger injured while riding in a car rented from the car company. Plaintiff, without first obtaining judgment against the driver, sought a declaration from the district court that the insurance policy provided coverage to the rental car. The insurer argued that plaintiff lacked standing based on Minnesota’s prohibition of direct actions against insurers. The district court agreed and dismissed the case. On appeal, the court of appeals affirmed in a three page opinion, reasoning that plaintiff was improperly seeking a different declaration on appeal than he had in the district court without first amending his complaint.
BRIAN WOOD, ERIC STEINHOFF, AND LAUREN D’CRUZ, LIND, JENSEN, SULLIVAN & PETERSON, ENJOY SUMMARY JUDGMENT WIN
Brian Wood, Eric Steinhoff, and Lauren D’Cruz obtained summary judgment and dismissal of their insurer client in a federal court case. Their client, an underinsured motorist insurance carrier, argued that its policy did not provide $1 million in UIM coverage for an accident involving a vehicle driven by the plaintiff, an employee of the insured, and a tractor trailer in Minnesota. The United States District Court, District of Minnesota, agreed, reasoning that the plaintiff’s claim for UIM benefits failed under the plain terms of an Ohio UI/UIM endorsement included in the policy and there was no basis for reforming the policy. The opinion is Tomars v. United Fin. Cas. Co., 2015 WL 3772024 (D. Minn. June 17, 2015).
STEVE SCHWEGMAN AND JIM McALPINE, QUINLIVAN & HUGHES, OBTAIN DEFENSE VERDICT IN MEDICAL MALPRACTICE ACTION
Steve Schwegman and Jim McAlpine of Quinlivan & Hughes obtained a defense verdict for an orthopedic surgeon in a medical malpractice action. The patient alleged deviations from the standard of care arising out of the treatment for a femur fracture.
The patient suffered a fall due to side effects of chemotherapy. She sustained a fractured femur, near her knee prosthesis. The orthopedic surgeon repaired the fracture with a rod. At the conclusion of the surgery, the patient had a slight amount of hyperextension of the femur but the surgeon was concerned about removing the rod and inserting a plate given the trauma the patient had sustained and the potential impact of the chemotherapy on the healing process. He therefore did not take any corrective measures at that time. Another orthopedic surgeon took over the care and during his care, the hardware failed. The patient underwent a second procedure to remove the rod and insert a plate. Plaintiff alleged significant ongoing limitations due to ongoing pain and disability that kept her from taking part in activities of daily living. Her husband claimed a loss of consortium. Medical expenses exceeded $65,000.
Plaintiff retained an orthopedic surgeon from the east coast who testified the care and treatment did not meet the standard of care when he grossly malreduced the patient’s femur fracture and failed to timely recognize the malreduction in order to take corrective action. The jury returned a verdict concluding the orthopedic surgeon was not negligent in his care and treatment of the patient. It was not required to answer the damages questions.
JACK MOORE AND ELIZABETH SORENSON, BROTTEN, LIND, JENSEN, SULLIVAN & PETERSON, WIN WRONGFUL DEATH JURY TRIAL
Jack Moore and Liz Brotten recently obtained a defense verdict in a wrongful death action. About 20 to 30 seconds before the accident, a motorcyclist struck a piece of tire debris on the freeway and wiped out, coming to a rest in a traffic lane, but still alive. Their client, who had been following the motorcycle, was able to avoid the same tire debris and the downed motorcycle, but was unable to avoid the motorcyclist who was lying on the pavement just beyond the motorcycle. On June 18, a Ramsey County jury found that the client was not at fault for striking and fatally injuring the motorcyclist.
LIND, JENSEN WINS DECLARATORY JUDGMENT ACTION
Brian Wood, Bill Davidson, and Peter Stiteler won a declaratory judgment action involving a claim for UM/UIM coverage for an accident between the insured semi-tractor trailer and a snowmobile. The United States District Court, District of Minnesota, ruled in favor of the insurance company, reasoning that a snowmobile was not an “auto” as defined by the policy and was not required to be insured under Minnesota’s No-Fault Act. The court therefore concluded that there was no UM/UIM coverage under the policy and granted the insurer’s motion for summary judgment. The opinion is United Financial Casualty Company v. Bradley Nelson, Civil Case No. 14-CV-00816 (JRT/LIB), filed May 18, 2015.
CECILIE LOIDOLT, BASSFORD REMELE, OBTAINS DEFENSE VERDICT IN MEDICAL MALPRACTICE CASE
Plaintiff trustee sued decedent’s dermatopathologist alleging failure to diagnose melanoma on tissue removed from decedent’s cheek, and failure to order deeper sections of the tissue block, which plaintiff claimed revealed the presence of melanoma. Plaintiff claimed that absent the alleged two-year delay in diagnosis, her husband would have survived melanoma. The jury, however, returned a defense verdict. Plaintiff’s counsel requested over $3.2 million in damages. The jury was required to answer damages, which they determined to be $1.7 million.
MARK WHITMORE, BASSFORD REMELE, WINS MEDICAL MALPRACTICE CASE
Plaintiff fell while receiving vestibular therapy to treat his dizziness symptoms at defendant hospital. Plaintiff alleged that the physical therapist working with the patient was negligent in failing to utilize a gait belt. The elderly plaintiff broke his hip. The jury returned a defense verdict, finding no negligence.
STEVE SCHWEGMAN AND LAURA MOEHRLE, QUINLIVAN & HUGHES AND MATT FRANTZEN AND RYAN ELLIS, GISLASON & HUNTER OBTAIN DEFENSE VERDICT IN MEDICAL MALPRACTICE CASE
Steve Schwegman and Laura Moehrle of Quinlivan & Hughes and Matt Frantzen and Ryan Ellis of Gislason & Hunter obtained a defense verdict for their respective clients, an emergency room physician and neurosurgeon. The decedent, a local police officer, sought treatment at a small town emergency department for a post-operative hemorrhage in his neck and concern for airway compromise. After conferring with the neurosurgeon, a decision was made to transfer the patient via ground ambulance to a larger hospital located 35 miles away. Because of a delay in the ambulance arriving, the patient and his wife decided to leave against medical advice. Shortly after leaving, however, the patient had increased difficulties and arranged an intercept with an ambulance crew at a town between the two hospitals. During ambulance transport, the patient’s airway closed and the paramedics attempted an intubation and then a surgical airway, which was successfully placed on the second attempt. The patient, however, went into cardiac arrest and died a few days later.
The heirs sued the ED physician and neurosurgeon, alleging they failed to arrange for rapid transport with the most qualified personnel which, according to their experts, would have been a Life Link air ambulance. After a seven day trial, the jury was asked to return a verdict in excess of $4 million, but it instead returned a defense verdict concluding the physicians were not negligent in their care and treatment.
PAUL GODFREY, FARMERS INSURANCE, ELECTED TO MSBA LEADERSHIP POSITION
Congratulations to Paul W. Godfrey, who was recently elected Secretary of the Minnesota State Bar Association. The office puts Paul on track to become the MSBA President during the 2018-19 bar year.
BARTON J. CAHILL, CAHILL LAW OFFICE, P.A., WINS NORTH DAKOTA WRONGFUL DEATH CASE
Bart Cahill was given a defense verdict in a North Dakota wrongful death case. The plaintiffs were the parents of an 8-year-old boy who was killed by a motor vehicle in the street of a mobile home community. A police investigation revealed the boy had run out from between two vehicles parked on a parking pad in front of a mobile home, into the path of a pickup that was traveling at or about the posted speed limit of 20 mph. The plaintiffs sued the driver of the pickup and the mobile home community. The case proceeded against the mobile home community after the driver settled out. Several theories of liability were advanced, including excessive posted speed limit, lack of speed bumps or humps, lack of sight distance within the community, and essentially, dangerous layout of driveways. Both sides retained experts on mobile home management practices, as well as traffic safety engineers. The jury found no liability on the mobile home community. Under North Dakota procedure, the jury did not answer any further questions apportioning fault or make any award of damages.
KAFI LINVILLE, ARTHUR CHAPMAN KETTERING SMETAK & PIKALA, OBTAINS DEFENSE VERDICT IN AUTOMOBILE ACCIDENT CASE
Kafi Linville obtained a defense verdict in a personal injury action that was tried in Sherburne County in March. The plaintiff was rear-ended by Defendant Wutzke as a result of a phantom semi-truck that had pulled out in front of them when turning onto the highway on which they were both traveling. He alleged soft tissue neck injuries and headaches as a direct result of the accident, requiring RFN treatments and chiropractic care for the remainder of his life.
At trial, the plaintiff attempted to introduce the testimony and a video from a non-treating chiropractor who had administered a digital motion X-ray procedure. The defense brought a motion in limine to exclude this expert and video, which ultimately turned into a formal Frye-Mack motion that was granted by the court. The plaintiff, however, still had a treating neurologist and chiropractor as testifying experts. The jury found plaintiff was negligent, but not a direct cause of the accident, and found zero negligence on behalf of Wutzke. It concluded the phantom semi-truck was negligent and the direct and sole cause of the accident. While the plaintiff sought approximately $275,000 in damages, the jury awarded $5,000 for past medical expenses and pain and suffering, and $0 for any future medical treatment or pain and suffering.
KEVIN J. KENNEDY AND FORREST G. HOPPER, BORGELT, POWELL, PETERSON & FRAUEN S.C., SECURE 8TH CIRCUIT COURT OF APPEALS VICTORY
Kevin Kennedy and Forrest Hopper secured an Eighth Circuit victory for West Bend Mutual Insurance Company. The case involved a coverage dispute between West Bend and Security National Insurance Company. Both companies insured Zup’s of Babbitt-Aurora, Inc, the owner of a strip mall in northern Minnesota in which it also operated a grocery store as a tenant. West Bend issued a “lessor’s risk only” policy to Zup’s, and Security National issued a commercial “supermarkets” policy. Security National demanded that West Bend make payments for Zup’s lost grocery store income after a fire damaged the store, but West Bend determined that its policy was secondary to Security National’s policy under Minnesota’s “total policy insuring intent” and “closeness to the risk” tests. West Bend obtained summary judgment on the coverage issue and Security National appealed. The Eighth Circuit Court of Appeals affirmed, finding Security National’s policy was primary under both tests. Because the amount of loss fell within Security National’s policy limits, West Bend did not owe for the grocery store’s lost income.
BOB KUDERER AND TOM BROCK, ERICKSON, ZIERKE, KUDERER & MADSEN, POST DEFENSE VERDICT IN HIT-AND-RUN WRONGFUL DEATH CASE
Bob Kuderer and Tom Brock represented an auto insurer in a uninsured motorist case arising out of a fatal hit-and-run, “pedestrian v. motor vehicle” accident in Wisconsin. The case presented several complex issues, including whether the policy’s “accident” requirement was to be viewed from the decedent’s perspective or the tortfeasor’s perspective in the event the decedent was found to have committed suicide. There was also a choice of law question. After a hotly contested five-day trial in Rochester, Bob and Tom successfully proved the decedent failed to act with reasonable care for his own protection and violated several Wisconsin traffic statutes in the process. The jury returned a defense verdict finding the decedent-pedestrian 85% at fault and the hit-and-run driver 15% at fault. The jury also found $47,000 in total damages due to the loss of the 30-year-old decedent, which were not recoverable due to the comparative fault determination.
LOUISE BEHRENDT AND RICH SCATTERGOOD, STICH, ANGELL, KREIDLER, DODGE & UNKE, P.A, WIN IN COURT OF APPEALS
Louise Behrendt and MDLA Vice-President Richard Scattergood successfully defended against an appeal from a summary judgment entered in a negligence case. The plaintiff was injured when a dry cleaning machine malfunctioned and sprayed him with hot fluid. Defendant Eide repaired the machine on an as needed basis for plaintiff’s employer, Norcostco, but only upon Norcostco’s request, and was not under any sort of general maintenance contract. The Court of Appeals agreed with the trial court’s conclusion that Eide — as an as-needed repair person — did not owe plaintiff a duty of care obligating him to inspect for and warn of potential defects that might cause harm in the future. The court noted that the duty plaintiff sought to impose resembled the duty owed by manufacturers and suppliers to identify and warn of product defects, and that it was not persuaded by plaintiff’s efforts to analogize Eide to these types of defendants. It also found no precedent extending the well-defined duties of manufacturers and suppliers to inspect for and warn about product defects to persons who later repair those products.
LOUISE BEHRENDT, STICH, ANGELL, KREIDLER, DODGE & UNKE, P.A, WINS SECOND APPEAL
In another case argued by Louise Berhrendt, the Minnesota Court of Appeals affirmed summary judgment in favor of American Family. The plaintiff/appellant sought underinsured motorist coverage (UIM) from his own automobile policy based on pecuniary losses he and his sons claimed to have suffered as the result of his mother’s wrongful death, which occurred after she was in a one-car accident where Plaintiff’s father was the driver. American Family’s policy provided that UIM coverage was available only to insureds who suffer bodily injury, and denied coverage because Plaintiff’s mother was not an insured, was not a resident relative, and was not an occupant in Plaintiff’s vehicle at the time of her death. It was undisputed that had she survived, Plaintiff’s mother would not have been entitled to UIM benefits under the American Family policy. The court of appeals affirmed the trial court’s conclusion that the policy permissibly restricted UIM benefits to insured persons suffering bodily injury, and that the No-Fault Act does not require insurers to extend UIM benefits to insureds who do not sustain bodily injury in automobile accidents and instead sustain pecuniary losses under Minnesota’s wrongful death act, due to the automobile-related death of a loved one.
MDLA “TEAM” WINS IN THE UNITED STATES DISTRICT COURT
On February 27, 2015 U.S. District Court Donovan Frank issued an Order granting summary judgment to the Boy Scouts of America, The Central MN Council Boy Scouts of America, and Stearns County, in a case in which plaintiffs, former members of an Explorer Post sponsored by Stearns County, claimed they were sexually abused by a Stearns County Sheriff’s Deputy and Explorer volunteer named Philip Meemken. Plaintiffs asserted only claims for violation of civil rights under 42 U.S.C. 1983, which requires evidence establishing the violation of a right secured by the Constitution of the United States, committed by a person acting under color of state law. Judge Frank ruled that, as a matter of law, there was no evidence Deputy Meemken was acting under color of state law when he sexually abused the plaintiffs. Among other things, the record established that Meemken was the uncle of two of the plaintiffs and that the incidents of abuse occurred during family and social outings, outside of and unrelated to Meemken’s official duties as a police officer or as a volunteer with the Explorer Post and were instead committed for Meemken’s own personal pursuits. While plaintiffs additionally claimed that they were groomed for abuse while Meemken was acting in his official capacities, Judge Frank found that there was no evidence establishing a nexus between the abuse and Meemken’s official duties.
The Boy Scouts of America and Central MN Council were represented by GARTH UNKE, STACEY SEVER and LOUISE BEHRENDT; and Stearns County was represented by JESSICA SCHWIE and ALLISON LINDEVIG.
Steve Schwegman And Laura Moehrle, Quinlivan & Hughes, Obtain Medical Malpractice Defense Verdict
Steve Schwegman and Laura Moehrle obtained a defense verdict for a urologist in a medical malpractice action.
The next-of-kin of the patient alleged deviations from the standard of care arising out of the alleged failure of the urologist to timely diagnose bladder cancer. The patient initially presented to the urologist in March 2010 with urinary complaints, including microscopic hematuria (blood in the urine). A cystoscopy identified a bladder stone, but no evidence of bladder cancer. After the stone was removed, the bladder was again inspected for malignancy without any evidence of abnormalities. During several follow-up visits, the patient reported improvement in symptoms. In January 2013, the patient returned with complaints of visible blood in the urine. A cancerous mass was discovered on the wall of the bladder. Although the bladder was removed, the patient suffered from complications and passed away.
Plaintiff retained several expert witnesses including a urologist, hematologist/oncologist, and economist. Medical expenses exceeded $1.2 million. Plaintiff alleged the physician failed to appropriately assess the hematuria, failed to perform urinalysis to check for continuing hematuria following the bladder stone removal, failed to appropriately follow up on continuing microscopic hematuria to rule out bladder cancer and failed to offer neo-adjuvant chemotherapy.
The jury returned a verdict concluding the urologist was not negligent in his care and treatment of the patient.
Kevin Gray and Matthew Moehrle, Rajkowski Hansmeier, Receive Defense Verdict
Kevin Gray and Matthew Moehrle received a defense verdict following a Carver County jury trial involving property damage and business interruption claims by a farm supply store arising out of an explosion and fire caused by a propane tank brought to store’s filling station by a customer. Kevin and Matt’s client was alleged to have negligently given the tank — which unknowingly contained acetylene — to the customer after finding it on his farm, which he had rented to a person later discovered to be a meth dealer. The plaintiff alleged that knowledge of the drug activities, and of a prior explosion on the farm involving a similar tank, gave notice to the landowner of the potential dangerous condition of the tank. The landowner argued he was, at best, a gratuitous bailor of the tank to the customer and, thus, only owed a duty to warn of dangers of which he had actual knowledge. There was no evidence that anyone actually knew before the explosion that acetylene was in the tank because the renter/meth dealer had committed suicide. Defendant also argued that a deceased employee who hooked up the tank was not properly trained, as there was evidence that the tank was past its certification date and should have been rejected. The jury apportioned 90% of the fault to the deceased renter and 10% to the farm supply store.
Elizabeth Sorenson Brotten, Lind, Jensen, Sullivan & Peterson, Successfully Defends Home Delivery Services Company
Elizabeth Sorenson Brotten successfully defended a home delivery services company at trial. The plaintiff, a former independent contractor for Elizabeth’s client, sought to recover a performance bond, which he claimed the business had improperly withheld following the termination of his independent contractor relationship. Following the bench trial, the court issued its order and verdict, finding in favor of the defendant, dismissing plaintiff’s claims, and awarding costs.
Douglas J. Mcintyre and Kyle A. Eidsness, Foley & Mansfield, Obtain Defense Verdict
Attorneys Douglas J. McIntyre and Kyle A. Eidsness obtained a complete defense verdict for their general contractor client following a five-day jury trial in Mille Lacs County. The plaintiffs alleged Langerman Roofing & Remodeling LLC breached its contract to repair a roof on the plaintiffs’ commercial property causing numerous losses, including business interruption, personal injury, lost profits, and diminished market value. Their claims—in excess of $700,000.00 at one point—hinged largely on their expert’s opinion of toxic mold in the building rendering it uninhabitable. After significant motion practice dismissing certain claims and excluding evidence necessary to prove others, the jury heard testimony from six experts and deliberated approximately three hours before returning the unanimous defense verdict.
George Soule and Melissa Stull, Soule & Stull, Successfully Defend Florida Lawsuit
George Soule and Melissa Stull tried a case on behalf of Vermeer Manufacturing Company in Alachua County, Florida in March. The plaintiff sued Vermeer, among others, for injuries he sustained while standing near a Vermeer stump cutter. Vermeer and Soule & Stull defended the design of the stump cutter, explaining throughout litigation and trial that the stump cutter was well designed and did not cause the plaintiff’s accident. After three days of trial, plaintiffs voluntarily dismissed their claims against Vermeer and its dealer with prejudice.
Ryan Zipf and Dan Kurtz, League of Minnesota Cities, Win Defense Verdict
Ryan Zipf and Dan Kurtz received a defense verdict in a federal case alleging excessive force claims under 42 U.S.C. § 1983 against three Eagan police officers. The plaintiff had an extensive criminal history, fled from officers and did not respond to commands to provide his hands for handcuffing. One of the officers used a Taser on the plaintiff three times. The court previously granted the officer summary judgment on two Taser applications, finding the force was objectively reasonable, but determined a fact issue existed on whether the plaintiff was still resisting by the third application. The plaintiff also claimed officers stomped on and hit him during his arrest, which the officers denied. While the plaintiff broke several teeth and bled profusely from cuts to his face, evidence showed these injuries probably occurred when he fell into a door after the first Taser application. The jury found the officers did not use excessive force.
Sally Ferguson and Noelle Schubert, Arthur Chapman Kettering Smetak & Pikala, P.A., Obtain Defense Verdict
Kim Poole alleged negligence against Canadian Pacific under the Federal Employers Liability Act (FELA) for an incident occurring when a section foreman hit him over the hard hat with a shovel. As a result of the incident, Mr. Poole claimed that he sustained a mild traumatic brain injury and permanent neck injury and could not return to work. Mr. Poole alleged that Canadian Pacific was vicariously liable for the section foreman’s conduct, arguing that, under the FELA, Canadian Pacific was liable because the foreman acted carelessly (not jokingly) with the shovel, and because the altercation stemmed from a dispute over work procedures. The jury determined that the foreman’s act of swinging the shovel was horseplay and outside of the scope of employment, so Canadian Pacific was not vicariously liable under the FELA.
Jack Moore and Lauren D’Cruz, Lind, Jensen, Sullivan & Peterson P.A., Obtain Defense Verdict
Jack Moore and Lauren D’Cruz recently obtained a defense verdict in a Hennepin County jury trial. Their client passed out while driving and caused an accident resulting in serious injuries to the driver of another vehicle. Jack and Lauren called the client’s doctor as a trial witness, who testified that the loss of consciousness was caused by the drug Atenolol, which slows down the heart rate. The client had been taking this drug for several years without a problem, until it caused him to pass out without warning a few moments before the accident. The plaintiff’s attorney cited the fact that the client had passed out previously due to dehydration, his doctors had warned him to drink enough water to avoid passing out again, on the accident date the client told the ER doctor that he might be dehydrated, and at least one doctor’s note concluded the client was dehydrated. The client explained his ER statement by testifying that he didn’t know why else he might have passed out, but that he thought he was adequately hydrated at the time of the accident. The jury found no negligence after being instructed that a person isn’t negligent if the accident is caused by a medical emergency the person couldn’t have reasonably foreseen.
STEVE SCHWEGMAN AND JAMES MCALPINE, QUINLIVAN & HUGHES, OBTAIN MEDICAL MALPRACTICE DEFENSE VERDICT
Steve Schwegman and James McAlpine of Quinlivan & Hughes obtained a defense verdict in a medical malpractice action on behalf of a general surgeon. The patient alleged deviations from the standard of care arising out of the alleged failure to properly perform a Nissen fundoplication.
The patient was seen by the surgeon for persistent gastroesophageal reflux disease with stabbing abdominal pain radiating to the back. She had undergone two prior open Nissen Fundoplication procedures (in which the fundus of the stomach is wrapped completely around the lower end of the esophagus). She also had a hiatus hernia for which no mention of repair was made. Extensive imaging and testing revealed persistent gastroesophageal reflux disease, with no distortion or narrowing suggestive of an intact fundoplication, and a large hiatal hernia. A revision was undertaken but post-operatively the patient developed a leak. As a result, she had a long, complicated pattern of hospitalizations and surgical interventions. She was eventually seen at the Mayo Clinic, where they ultimately removed her stomach and she was placed on a permanent feeding tube.
Plaintiffs retained several expert witnesses. Her medical expenses exceeded $1.6 million, and a Life Care Planner retained by Plaintiff developed two “plans” for future care, treatment and medications – Plan “A” assumed a total of $7.5 million over Plaintiff’s lifetime; and Plan “B” assumed $13 million over her lifetime. After a seven day trial, Plaintiffs requested a verdict of approximately $46 million. The jury returned a verdict concluding the surgeon was not negligent in his care and treatment of the patient. They were not required to answer the damages questions.
BOB KUDERER AND TOM BROCK, ERICKSON, ZIERKE, KUDERER & MADSEN, POST DEFENSE VERDICT IN “BICYCLE-VERSUS-TRUCK” ACCIDENT
Bob Kuderer and Tom Brock of Erickson, Zierke, Kuderer & Madsen recently obtained a defense verdict in a “bicycle-versus-truck” case that was tried to Stearns County jury in October 2014. The accident occurred when the plaintiff, a 12-year-old boy, rode into an intersection as the defendant made a right-hand turn. The boy suffered a confirmed broken femur, broken nose, facial scarring and an alleged traumatic brain injury associated with impaired executive functioning. The defense contended the boy’s cognitive deficits were attributable to longstanding, but undiagnosed developmental ADHD, not a traumatic brain injury. Plaintiff asked the jury for over $400,000 in damages. Defendant contended the plaintiff violated several traffic safety statutes, and it was impossible for the driver to yield. The jury found the driver was not negligent and the boy was 100% at fault for the accident. The jury awarded $33,000 in past medical expenses, $3,000 in past pain and suffering, and $0 in future damages.
DAVID C. HUTCHINSON, GERAGHTY, O’LOUGHLIN & KENNEY, P.A., OBTAINS DEFENSE VERDICT AFTER TWO-WEEK MEDICAL MALPRACTICE TRIAL
In this lawsuit plaintiffs claimed the defendant, an orthopedic surgeon, negligently diagnosed an injury sustained by the two-year-old plaintiff who had fallen and injured her right arm at home. The defendant diagnosed and treated a fractured ulna. It was later discovered that the child had a Monteggia injury, which involves both a fractured ulna and a dislocated head of the radius. The defendant did not diagnose or treat the dislocated radius. Since the Monteggia injury was not diagnosed and treated early, the child was required to undergo two surgical procedures, and she suffered permanent nerve damage and disability in the right forearm and hand. Both sides produced testimony from orthopedic experts. It was undisputed that the elbow of a two-year-old child contains a lot of cartilage which is not visible on x-rays. Plaintiffs claimed the condition was nonetheless apparent and should have been diagnosed. The jury returned a defense verdict, concluding the surgeon was not negligent.
MARLENE S. GARVIS AND VICKI A. HRUBY, JARDINE, LOGAN & O’BRIEN, P.L.L.P., ENJOY EIGHTH CIRCUIT WIN
MDLA members Marlene S. Garvis and Vicki A. Hruby of Jardine, Logan & O’Brien, P.L.L.P., successfully represented a sheet metal fabricating company in an Eighth Circuit appeal. The underlying claim, an ADA case involving allegations of wrongful termination, failure to accommodate and retaliation, was dismissed on summary judgment.
The Eighth Circuit affirmed the dismissal. As to the ADA termination claim, the Eighth Circuit held that a one-year gap between the employee’s initial complaints about his shoulder and termination negated inference of causation based on temporal proximity. Alternatively, even if the employee presented prima facie case, there was no genuine dispute of material fact on pretext for termination owing to poor performance. And, the alleged comparables were not shown to be similar, nor evidence that company considered sundry violations to be of comparable seriousness; the fact that some employees got written warnings was not evidence of pretext. With respect to the reasonable accommodation claim, the Eighth Circuit found no evidence that the employee sought leave as an accommodation. Dismissal of the plaintiff’s ADA retaliation claim also was affirmed based on the absence of any evidence that the employee engaged in protected activity, i.e., requested an accommodation. Finally, as to a Title VII retaliation claim, the Eighth Circuit held that the claim failed because a one-year gap between the protected activity (cooperating in EEOC investigation) and termination defeated causation, and there was no evidence of pretext.
CECILIE LOIDOLT, BASSFORD REMELE, OBTAINS DEFENSE VERDICT IN MEDICAL MALPRACTICE CASE
Plaintiff sued an emergency room physician claiming error in the diagnosis of an urinary tract infection and error in the treatment of the same with Ciprofloxacin, resulting in an adverse reaction to Cipro including tendinopathy, myalgias, and arthralgias. Plaintiff sought an award of damages of approximately $2,000,000, claiming pain and suffering, and past and future medical expenses as well as loss of earnings and earning capacity. The plaintiff was a special education teacher earning approximately $60,000 per year. The jury found no negligence and was not required to answer the damages questions.
Dyan Ebert and Laura Moerhle, Quinlivan & Hughes, P.A., Win Supreme Court Case of Staab v. Diocese of St. Cloud.
On September 10, 2014, the Minnesota Supreme Court issued its much awaited and anticipated decision regarding joint and several liability and reallocation. The Supreme Court held that a defendant who is found to be 50% or less at fault cannot be ordered to pay more than its fair share of the total damages award, even through a motion for reallocation under Minn. Stat. § 604.02, subd. 2.
In this case, a jury found the defendant Diocese 50% at fault for the plaintiff’s injuries. The jury also found the plaintiff’s husband was 50% at fault, even though he was not a party to the lawsuit. Plaintiff argued the Diocese should be forced to pay 100% of the damages award under Minnesota’s “reallocation” statute, arguing the judgment against the non-party husband was “uncollectible.” Minn. Stat. § 604.02 subd. 2. The Diocese argued it was severally, but not jointly, liable (as confirmed by the Supreme Court during the first appeal of the case) and therefore could not be forced to pay more than its fair share (50%), regardless of whether the remainder of the judgment was collectible from the plaintiff’s husband. The Minnesota Supreme Court agreed.
MDLA Amicus Committee members Rich Thomas, Corrine Ivanca, Bob McCollum and Cheryl Hood Langel prepared and submitted an amicus brief on behalf of the MDLA.
Barton J. Cahill, Cahill Law Office, P.A. Wins Defense Verdict
Bart Cahill recently won a defense verdict in a case he tried before a jury in Clay County, Minnesota. The plaintiff, a 12-year-old boy, was riding his bicycle when he collided with a motor vehicle operated by Mr. Cahill’s client in the middle of an intersection. Plaintiff suffered a fractured femur and concussion. The case was bifurcated, and tried on liability only. Accident reconstructionists testified for both parties. Mr. Cahill’s client had consumed two beers before the accident, and had a BAC of .04. The court denied a motion in limine and allowed evidence of the alcohol consumption and BAC level. An independent witness testified the boy failed to stop for a stop sign protecting the intersection. The jury found 85% fault on the boy and 15% fault on the defendant.
Cecilie Loidolt and Sarah Hoffman, Bassford Remele, Obtain Defense Verdict in Medical Malpractice Case Involving Birth Injury
Cecilie Loidolt and Sarah Hoffman obtained a defense verdict in a birth injury case involving obstetrical management of preterm premature rupture of membranes. Plaintiffs claimed that defendants failed to properly prescribe antibiotics, failed to provide the patient with information necessary to give informed consent regarding discharge from the hospital and improperly discharged the patient from the hospital with ruptured membranes. Plaintiffs asserted that these alleged failures resulted in the baby developing an in utero E. coli infection resulting in brain damage and cerebral palsy. The jury considered the fault of the mother as well as the fault of the defendants. The jury found negligence on the part of the mother [but no causation] and found no negligence on the part of the defendants. The jury was required to answer the damages questions. Plaintiffs sought $15 million in damages. The jury answered the damages questions, valuing the case at $7.7 million.
Laura Moehrle, Quinlivan & Hughes, Obtains Defense Verdict in Underinsured Motorist Case
Laura Moehrle of Quinlivan & Hughes obtained a defense verdict on behalf of State Farm in an underinsured motorist case. Plaintiff was involved in a low speed accident but demonstrated objective injuries to his cervical spine. He had a history of neck pain and fusion but had not sought treatment for eight years prior to the accident. Plaintiff received treatment including injections and claimed that surgery was necessary in the future. He was an auto mechanic who claimed past wage loss and future loss of earning capacity as well as general damages. Total damages sought were in excess of $100,000. The jury, however, awarded $11,900 in past medical and past wage loss, but nothing for past pain and suffering or future damages. Accordingly, the UIM threshold was not met.
Alan King and Rachel Osdoba, Goetz & Eckland, P.A. Obtain Defense Verdict in Premses Liability Case
Alan King and Rachel Osdoba of Goetz & Eckland won a defense verdict in the case of Lowell v. London Road Wash, Inc., a personal injury action that was tried before a St. Louis County jury in June 2014. Plaintiff alleged that the car wash was negligent in allowing customers into the lube center, causing personal injury to plaintiff when a car lift lowered onto her foot. Plaintiff also alleged that the car wash’s safety training and procedures were insufficient. In its defense, London Road argued that customers need to exercise reasonable care and caution when entering the lube shop, especially around the lifts. One of the central issues in the case was whether the lift operator could have seen the plaintiff walk over to her vehicle as the lift was lowering.
Plaintiff requested damages of $225,000 for medical expenses and pain and suffering. London Road suggested that the jury find no liability and approximately $23,000 in damages. The parties had stipulated to $17,789 in past medical expenses as being reasonable and necessary; however, London Road did not concede that it was the party responsible for the injury. The jury agreed and returned a defense verdict—zero liability on London Road.
Cecilie Loidolt, Bassford Remele, Obtains Two Defense Verdicts in Medical Malpractice Cases
In the first case, plaintiffs sought an award for alleged failure to properly install a hip implant resulting in a leg length discrepancy. Plaintiff sought damages for loss of earnings and loss of earning capacity, as well as past and future medical care for an infection that she claimed resulted from the implant. The jury found that the surgeon was not negligent, and awarded zero damages. In the second case, plaintiffs sought an award of over $7,000,000 for alleged failure to properly treat severe preeclampsia, resulting in maternal stroke. Plaintiff claimed loss of earnings and loss of future earnings capacity as well as past and future medical care costs. Plaintiff was a computer programming consultant earning $75,000 per year at the time of the stroke. The jury found no negligence on the part of the two obstetricians. The jury was not required to answer the damages questions.
Thomas L. Cummings and Allison A. Lindevig, Jardine, Logan & O’Brien, Enjoy Minnesota Supreme Court Victory
MDLA members and Jardine, Logan & O’Brien PLLP attorneys Thomas L. Cummings and Allison A. Lindevig obtained a favorable decision from the Minnesota Supreme Court in Schuette v. City of Hutchinson, No. A13-0840 (Minn. Mar. 5, 2014), wherein the supreme court affirmed the compensation judge’s finding that the Employee’s PTSD is a mental-health injury and not compensable under Lockwood v. Ind. Sch. Dist. No. 877, 312 N.W.2d 924 (Minn. 1981), and that Lockwood’s interpretation of Minn. Stat. § 176.021, subd 1 (2012) does not violate the Employee’s equal protection rights.The court of appeals affirmed in a published opinion released March 10, 2014. Therein, the court — recognizing that the case presents an issue of first impression — found that the term “substantial completion” as used and defined in the statute contemplates the date on which physical construction of the structure is complete, not the date on which the structure could be legally occupied as evidenced by issuance of the CO. In so finding, the Court concluded that while issuance of a CO may serve as prima facie evidence of substantial completion (because a CO would never be issued before construction was completed) it is not a necessary condition that has to occur before substantial completion is achieved.
Tamara Novotny, Cousineau Mcguire, Wins Wisconsin Supreme Court Case
On April 18, 2014, the Wisconsin Supreme Court issued a decision in favor of Great West Casualty Company in a commercial trucking coverage case. Zeverino leased a semi-tractor to Taylor Truck Line. As required by the lease, Zeverino obtained non-trucking use insurance (i.e. bobtail coverage) from Acceptance Casualty Insurance Company. Taylor was obligated to maintain trucking insurance, which it did through a policy issued by Great West.
Zeverino was involved in an accident as he drove from his home to a maintenance facility where he planned to have a new grille installed on his tractor and to pick up an oil filter tube. Zeverino would qualify as an insured under Great West’s trucking policy if the semi-tractor was being used in Taylor’s business. On the other hand, Acceptance’s non-trucking use policy excluded coverage if the semi-tractor was being used in Taylor’s business. The Wisconsin Supreme Court therefore focused on whether the semi-tractor was being used “in the business of” Taylor at the time of the accident and adopted the Seventh Circuit Court of Appeals’ interpretation that “in the business of” refers to occasions when the vehicle is being used to further the commercial interests of the lessee.
Although the lease required Zeverino to maintain the leased tractor in the state of repair required by all applicable regulations, the Wisconsin Supreme Court found no evidence in the record that the repairs to the grille or oil filter tube were required in order to bring the semi-tractor into compliance with the regulations, and no evidence that the repairs were needed in order to allow the semi-tractor to continue hauling for Taylor. Because there was no evidence that the repairs furthered the commercial interests of Taylor, the court found that the semi-tractor was not being used “in the business of” Taylor and, therefore, that Great West’s trucking policy did not afford coverage. In turn, coverage was not excluded under Acceptance’s non-trucking use policy. Acceptance had also sought to exclude coverage under another provision precluding coverage when a tractor is being “operated, maintained, or used to carry property in any business or en route to or from such business purpose.” The court agreed that Acceptance’s proposed interpretation of this provision would operate to exclude coverage any time the semi-tractor was being driven and, therefore, would render coverage illusory.
Tamara Novotny, Cousineau Mcguire, Obtains Summary Judgment from the Bench in Wisconsin Bad Faith Case
The Mullers obtained an auto insurance policy from General Casualty. When they failed to make a premium payment, General Casualty, in accordance with its policy and Wisconsin statutes, provided notice of its intent to cancel the policy if payment was not received prior to April 11, 2013. The notice also advised that the policy would remain cancelled in the event payment was made after the cancellation deadline. Payment was not made before the deadline and, accordingly, a notice of cancellation was sent to the Mullers advising that their policy was cancelled as of 12:01 a.m. on April 11, 2013 and, again, advising that a late payment would not reinstate coverage. The Mullers attempted to make a premium payment on April 12, 2013. Two days later, their son was involved in an accident. When General Casualty denied the property damage claim due to the fact that the policy had been cancelled days before the accident, the Mullers claimed bad faith.
Ruling from the bench on General Casualty’s motion for summary judgment, the court found the Mullers could not maintain a bad faith claim as there was no evidence that an insurance policy remained in effect from which payment was due or that denial of the claim was without reasonable basis given the proper and effective cancellation of the policy.
John Crawford, Johnson & Lindberg, Obtains Defense Verdict
John Crawford of Johnson & Lindberg recently fended off a threat by plaintiff’s counsel to pursue a bad-faith claim for failure to settle and obtained a defense verdict for his client, Jason Krominga. The case involved a two-vehicle accident. The plaintiff, who was a passenger in the other vehicle, underwent a cervical spine fusion. Medical expenses totaled about $70,000. After threatening to pursue a bad-faith claim for failure to settle for Krominga’s policy limits of $100,000, the plaintiff settled for less than the limits, leaving only Krominga’s third-party claim for contribution or indemnity against the other driver, which proceeded to trial.
The jury returned a unanimous verdict finding that the other driver was solely at fault for the accident and awarded damages totaling $185,932.02 plus costs totaling $33,755.17. The verdict also precluded the other driver’s impending plaintiff’s case against Krominga.
Kevin Gray, Rajkowski Hansmeier, Obtains Defense Verdict in Slip and Fall Case
Kevin Gray of Rajkowski Hansmeier obtained a defense verdict in a slip and fall case tried in Sherburne County in May of 2014. Plaintiff sustained a significant ankle injury when she fell while stepping off a curb in the parking lot of a bowling alley. Plaintiff underwent four separate surgical procedures ultimately resulting in an ankle fusion at the age of 52. Plaintiff alleged that the accident occurred as the result of the failure of an overhead light in the parking lot that shut off suddenly as she was stepping off the curb and introduced a video of the parking lot taken within a day of the accident. The video showed the light shutting off and the re-cycling back on. Plaintiff presented expert testimony by Robert Svare that the video depicted a failure of the light bulb that would have been evident to the owner of the building for weeks or months before the accident. Defendant offered testimony by Roger Burgmeier that illumination testing done under similar conditions indicated the ambient light would have been adequate to observe ground objects in the area where the Plaintiff stepped off the curb. The jury found total damages of $310,000, but determined that neither party was negligent. The case was tried before the Honorable Mary Yunker. Plaintiff was represented by Robert Schmitz of Schwebel, Goetz and Sieben.
Troy Poetz, Rajkowski Hansmeier, Obtains Defense Verdict
Troy Poetz of Rajkowski Hansmeier tried a jury trial in Dakota County on June 9-10, 2014. The case involved two rear-end auto accidents. The jury found no negligence on Troy’s client, one of the individuals that rear-ended the Plaintiff. The Plaintiff had a large number of priors.
Barbara Zurek, Melissa Riethof, Louann Lawton and Joseph Simmer, Meagher & Geer, Win Medical Malpractice Defense Verdict
Members of Meagher & Geer’s Health Care Group recently tried a case involving allegations of medical negligence against an interventional radiologist and his group, regarding not only informed consent, but allegations of a negligently performed an epidural spinal injection. Plaintiffs sought a potential award in excess of $10 million for pain and suffering, future care costs and loss of consortium. The jury found no negligence on the part of the defendants.
Kenneth Bayliss, Quinlivan & Hughes Prevails on $5 Million Bond Claim
On December 5, 2013, the Minnesota District Court entered summary judgment for Quinlivan & Hughes client Lake County on a $5 million claim related to the sale of county revenue bonds for a $70 million project. ORIX Public Finance, LLC, a Texas-based investment group, sued Lake County when Lake County could not perform on a bond purchase agreement. When a federal agency would not approve the bond purchase agreement financing as a means of providing gap financing for the project, the County decided to fund the gap by taking money from its own reserves. ORIX then sued, claiming approximately $5 million in damages.
The key to the defense of the case was the doctrine of “frustration of purpose,” which applies when the fundamental purpose of a transaction has been frustrated so as to excuse a party from performing a contract. Bayliss convinced the court that there was no purpose to the bond transaction, given that without the federal funds there was no need for matching funds because there was nothing to match. ORIX argued that the RUS had never formally rejected the bond purchase agreement and that it was therefore entitled to $5 million in damages. Judge Davis agreed with the County and found that the case was one where the doctrine of frustration of purpose applied. The decision also addressed some interesting hearsay issues arising from the fact that the federal agency refused to allow its witnesses to testify.
ORIX appealed to the Eighth Circuit Court of Appeals. Just before its brief was due ORIX approached the County, requested settlement, and the case was settled for $15,000. Credit also goes to Alain Baudry of Maslon, Edelman, Borman & Brand, who associated on the case.
Garth Unke and Louise Behrendt, Stich, Angell, Kriedler, Doge, & Unke, P.A. Prevail in Minnesota Court of Appeals
Rosso v. Hallmark Homes of Minneapolis, Inc. addressed construction of the term “substantial completion” as used to trigger the commencement of the ten-year statute of repose for construction defect claims found in Minn. Stat. 541.051, subd. 1(a). The homeowners purchased their Chaska home — used as a model home — on November 16, 1995, on that date executing a purchase agreement and a Property Disclosure Statement agreeing the home and its fixtures were in working order and that the home was in “move-in condition.” They closed on January 20, 1996, one day after the municipality issued a Certificate of Occupancy (CO). They claimed to have discovered moisture intrusion damages on November 20, 2005, notified defendant Hallmark about the problems in May, 2006 and commenced suit shortly thereafter. Hallmark brought a motion for summary judgment under the ten-year statute of repose, arguing that under the definition of “substantial completion” provided by the statute (the date on which “construction is sufficiently completed so that the owner or the owner’s representative can occupy or use the improvement for its intended purpose”) the ten year repose period began by at least November 16, 1995 when the home was undeniably in “move-in condition,” and as such ran on November 16, 2005, before the homeowners claim to have discovered actionable injury on November 20, 2005. Plaintiffs argued that “substantial completion” cannot occur until the municipality issues a CO, which in this case did not occur until January 19, 1996. The trial court agreed with Hallmark, granting its motion for summary judgment and dismissing the homeowners’ claims.
The court of appeals affirmed in a published opinion released March 10, 2014. Therein, the court — recognizing that the case presents an issue of first impression — found that the term “substantial completion” as used and defined in the statute contemplates the date on which physical construction of the structure is complete, not the date on which the structure could be legally occupied as evidenced by issuance of the CO. In so finding, the Court concluded that while issuance of a CO may serve as prima facie evidence of substantial completion (because a CO would never be issued before construction was completed) it is not a necessary condition that has to occur before substantial completion is achieved.
Jim Andreen, Erstad & Riemer, P.A. Prevails in Minnesota Supreme Court.
On January 2, 2014, the court, in Dukowitz v. Hannon Security Services, Inc., refused to create a cause of action for an alleged retaliatory termination under the Minnesota Unemployment Insurance Act. The case alleged that the defendant terminated an employee for seeking temporary unemployment benefits (which the defendant denied). Summary judgment was granted and affirmed by both appellate courts holding that a common law cause of action for retaliatory discharge could only be brought where an employee was terminated for refusing to break the law or if he/she “blew the whistle” on the employer, not where the employee simply did something the law allowed. Previously, the court had not so circumscribed this common law action. This was a significant victory for employers clarifying when retaliation claims can be brought, in that they will have less risk of a retaliation claim if they terminate an employee who simply happened to exercise a legal right.
Kevin Gray, Rajkowski, Hansmeier, Obtains Defense Verdict in Wrongful Death Action
The case arose out of a motor vehicle/truck accident that occurred on May 5, 2010 at a rural intersection when a vehicle collided with a semi owned and operated by Mr. Gray’s client. Two teenage passengers in the car were killed. Plaintiffs alleged that the driver of the semi was familiar with the intersection, knew that traffic approaching was not likely to stop or slow for the yield sign, and was aware that cars approaching from the south would be unable to see his truck due to a line of trees on the side of the road. The jury found no liability on the semi-driver and the co-defendant was determined to be 100% at fault for the accident. The case was bifurcated and only liability issues were tried. The co-defendant was represented by Laura Moehrle.
Dan Singel and Rachel Osdoba, Goetz & Eckland Successfully Defend UIM Carrier
The plaintiff alleged that the driver of a St. Louis County construction vehicle failed to yield her right of way and neglected to activate the vehicle’s strobe lighting in foggy conditions. Westfield argued the plaintiff was comparatively at fault due to her excessive speed. The plaintiff requested $1,027,000 plus pain and suffering given the plaintiff sustained five fractures, traumatic arthritis, disfigurement, extensive wage loss, and would require two future surgeries. The jury returned a defense verdict finding 0% liability on the tortfeasor and $0 damages.
Joel Zylstra Tries Dog-Bite Case
The plaintiff was a handyman bidding a job at the defendant’s home. He alleged physical and psychological injuries as a result of a dog bite that he alleged lasted a total of five minutes.
Plaintiff was bitten in three areas, the right hand, the left forearm, and the left biceps. His expert alleged that a revision surgery was necessary to minimize plaintiff’s scarring. Regarding the psychological injuries, plaintiff alleged a fear of dogs interfering with his ability to do daily activities. However, plaintiff had not sought psychological treatment for the alleged fear.
At trial, the plaintiff’s attorney asked for a jury award of $15,000–$25,000 in past pain, suffering, emotional distress, $10,000–$15,000 in future pain, suffering and emotional distress, $8,000 in past and future medical care, and $256 in past wage loss. The jury awarded plaintiff $3,250 in past pain, suffering, and emotional distress, $374 in past health care expenses, $256 in past wage loss, $500 in future pain, suffering, and emotional distress, and $0 in future health care expenses for a total jury award of $4,380.
Lenae Pederson, Katherine McBride, Meagher & Geer, P.L.L.P., Obtain Defense Verdict in Personal Injury Case
Plaintiffs sought a potential award of $9.5 million dollars for loss of earning capacity and future care costs. Additionally, plaintiffs sought damages for past and future pain and suffering for plaintiff’s quadriplegia due to a collision with a retaining wall that he claimed should have been removed by highway design engineers during a construction project. Not once, but twice, defendants received a jury verdict in favor of the engineering client. The first judge granted plaintiffs a new trial on jury misconduct grounds. A second jury, in front of a different judge, reached the same conclusion – no fault on the part of the engineering firm.
Barbara Zurek, Meagher & Geer, P.L.L.P., Obtains Defense Verdict in Medical Malpractice Case
Plaintiffs sought a potential award in excess of $7.5 million for loss of earning capacity and future care costs. Additionally, plaintiffs sought damages for past and future pain and suffering for plaintiff’s claimed “hypoxic ischemic” brain injury that plaintiff alleged was due to doctor’s failure to appreciate plaintiff/patient’s instability and not take patient back to surgery in a timely fashion, allegedly thereafter resulting in bradycardia, hypoxemia, and alleged brain injury. The jury found that the defendant was not negligent.
Rodger Hagen, Meagher & Geer, P.L.L.P., Obtains Defense Verdict in Medical Malpractice Case
Case involved allegations of medical negligence against a surgeon who participated in a procedure to fuse vertebrae of a 43-year-old construction worker who had been injured in a fall. Plaintiff alleged that negligence in providing post-operative care resulted in chronic pain and permanently precluded him from employment. Pretrial settlement demand was in excess of $1 Million.