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MDLA Congratulates
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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 or 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.

Summer 2019


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.

Fall 2015


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.


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 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 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 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 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.


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.


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.


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 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.

Summer 2015


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.


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 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 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 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 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.


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.


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.

Spring 2015

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.

Winter 2015


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 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.


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.


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.


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.

Fall 2014

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.

Summer 2014

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.

Spring 2014

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.

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