News from Around the State: Trials and Verdicts

WDC Journal Edition: Spring 2019

Dorothy L. Mueller, et al. v. Integrity Property & Casualty Insurance Company, et al
Washington County Case No. 17-CV-218
February 2019

Facts: Plaintiff, a 76-year-old woman, was visiting family when her relative’s dog jumped out of a vehicle and knocked her over. Plaintiff sustained a displaced fracture of her left proximal tibia and fibula. She was taken to the hospital and then to a rehabilitation facility for five weeks of recovery. While at the rehabilitation facility, she developed ulcers and a deep vein thrombosis. Her medical bills totaled $84,729.95. Plaintiff claimed ongoing pain, swelling and weakness in her left leg. Her husband presented a loss of consortium claim. The defense contended that the plaintiff recovered by the end of 2016 and that the plaintiff’s ongoing issues were related to her peripheral vascular disease.

Issues for Trial: Prior to trial, the defense stipulated to liability and to the medical bills. The issues for trial included plaintiff’s claims of past and future pain and suffering, and the husband’s loss of consortium. Before trial started, the defense tendered a check for the medical bills to eliminate any mention of the amount of the bills at trial or have that amount listed on the verdict. The defense further argued that the bills should not be included in any judgment for purposes of evaluating plaintiff’s statutory settlement offer and the defense offer of judgment, which would give defendants an extra “cushion” of $84,729.95. Plaintiff returned the check on the first day of trial.

At Trial: Plaintiff asked for $100,000 for past pain and suffering, $75,000 for future pain and suffering, and left the loss of companionship claim to the jury’s discretion. The defense suggested $40,000 for past pain and suffering, and no award for future pain and suffering or for the loss of consortium claim. The jury awarded $40,000 for past pain and suffering and no award for the other claims.

Plaintiff’s Final Pre-Trial Demand: $184,500

Defendant’s Final Pre-Trial Offer: $150,000

Verdict: $40,000

For more information, please contact Monte Weiss at mweiss@mweisslaw.net.


Christopher D. Wendt, et al. v. State Farm Mutual Automobile Insurance Company, et al.
Shawano County Case No. 17-CV-6
February 2019

Facts: Plaintiff claimed he was injured in a motor vehicle accident. The defendant struck the rear of the plaintiff’s truck at an uncontrolled intersection on a rural road. The plaintiff spun out of control and ended up in a ditch. Plaintiff reported no injuries to the police, but his wife drove him to the emergency room with complaints of shoulder pain. An MRI obtained three months later revealed a torn labrum and arthritis. Surgery was unsuccessful and plaintiff was placed on permanent work restrictions. He subsequently lost his union welding job due to the restrictions.

Issues for Trial: The defense stipulated to 100% liability. The main issue for trial was causation. Plaintiff’s treating surgeon and the defense IME doctor agreed plaintiff had a dysmorphic glenoid (the cup at the end of his shoulder blade is flatter than a normal shoulder so the ball at the top of the humorous is less stable). There was no objective evidence of a traumatic tear, so the treating surgeon testified that he relied on the plaintiff’s recitation of his medical history to make his diagnosis. Even though the history was inaccurate and incomplete, the treating surgeon maintained his opinion that the labrum was torn during the accident or, at a minimum, the accident aggravated an asymptomatic injury. The IME doctor testified that, unlike the surgeon, he had complete medical records which included past instances of shoulder pain and treatment. He opined that 100% of the injury was pre-existing. He also testified that most people with the same shoulder condition as the plaintiff suffer from the exact same injury as the plaintiff absent any trauma.

At Trial: Plaintiff sought $50,000 for past pain, suffering and disability, $21,039.20 for past wage loss, $26,193.35 for past medical bills, and $100,000 for future pain, suffering and disability, for a total of $197,232.55. The jury awarded $5,000 for past pain, suffering and disability, $10,000 for past wage loss, $7,500 for past medical bills, and $0 for future pain, suffering and disability, for a total award of $22,500.

Plaintiff’s Final Pre-Trial Demand: $165,000

Defendant’s Final Pre-Trial Offer: $40,000

Verdict: $22,500

For more information, please contact Gabriel G. Siehr at gsiehr@eversonlaw.com.


John C. Schick v. Travelers Property Casualty Company of America, et al.
Eau Claire County Case No. 15-CV-200
December 2018

Facts: Plaintiff was employed by Zenith Tech, which was a construction company hired to

construct bridges and overpasses on I-94 near Eau Claire in 2012. He was attempting to climb into a crane when a grab handle broke away from the cab wall. He fell backward, striking his foot and ankle on the way down. He suffered permanent injuries to his foot and ankle such that he could no longer stand or walk for long periods of time, could no longer walk on uneven surfaces, and lost general strength and stability. The crane cab and crawler assembly was manufactured and assembled in Japan by IHI Construction Machinery, Ltd. They designed, manufactured, and assembled the handhold in question. Terex USA, LLC then imported that part of the crane, attached its own lattice boom, and sold the finished product to Hayden-Murphy, LLC. Hayden-Murphy, LLC was a rental company who owned and rented the crane prior to Zenith Tech’s purchase of it.

Issues for Trial: There were two main issues for trial. First, the plaintiff failed to implead IHI Construction Machinery, Ltd. and tried to argue that it did not matter under Wisconsin’s newly-adopted products liability statute, Wis. Stat. § 895.045(3). The plaintiff argued that Terex USA, LLC was the manufacturer. Second, the plaintiff tried to argue that the hand hold was defective even though no witness at trial was aware of any other handle failure in any other Terex crane. Plaintiff’s expert testified that the defective design led to stress fractures from normal use which resulted in the failure. The defense experts testified that the handle would never fail if used as designed. They also pointed to evidence that something other than a human hand had been clamped to the handle. They opined that there was a mechanical overload which caused the initial fracture, leading to the failure over time.

At Trial: Plaintiff sought $250,687.90 for past medical bills, $335,288 to $365,769 for past wage loss, and $733,150 to $799,800 for future loss of earning capacity. The plaintiff did not ask for a specific amount for past or future pain, suffering, and disability. The jury answered the special verdict questions “yes” that Terex USA, LLC was the crane manufacturer and “no” that the product was defective. Though plaintiff lost liability, the jury awarded $411,000 for past pain, suffering and disability, $345,000 for past wage loss, $595,000 for future loss of earning capacity, $250,687.90 for past medical bills, $367,800 for future pain, suffering and disability, and $40,605 for future medical bills. Had the plaintiff been able to collect, the total would have been $2,010,492.90.

Plaintiff’s Final Pre-Trial Demand: $1,400,000

Defendant’s Final Pre-Trial Offer: $270,000

Verdict: $0

For more information, please contact Gabriel G. Siehr at gsiehr@eversonlaw.com.


Victoria Ann Reeves, et al. v. Sam Jovanovich, et al.
Bayfield County Case No. 14-CV-135
November 2018

Facts: This was a slip-and-fall incident that occurred at Apostle Island Area Campground. The plaintiff slipped and fell on a wooden walkway through the woods after a rainfall. Plaintiff sustained a fractured wrist, resulting in surgery and physical therapy. Plaintiff alleged negligent maintenance of the boardwalk and claimed the slope of the boardwalk violated the Safe Place Statute.

Issues for Trial: Defense counsel was successful in obtaining partial summary judgment based on the builder’s statute of repose, eliminating plaintiff’s argument surrounding the slope of the boardwalk.

At Trial: The jury returned a defense verdict and $0 in damages.

Plaintiff’s Final Pre-Trial Demand: $165,000

Defendant’s Final Pre-Trial Offer: $27,500

Verdict: $0

For more information, please contact Sandy Hupfer at shupfer@secura.net.


Dorothy Conroy Wiesender, et al. v. Sandy Hardina, et al.
Polk County Case No. 17-CV-35
November 2018

Facts: Plaintiff was injured at the insureds’ garage sale. She broke her hip after supposedly tripping on indoor/outdoor carpet placed in front of an open garage door.

Issues for Trial: The parties stipulated to past medical specials of $78,555.65. The issues for trial included negligence (and contributory negligence) and the value of past and future pain, suffering and disability.

At Trial: The jury found that defendants were negligent, but that their negligence did not cause plaintiff’s injury (probably because the jury believed testimony and medical records that plaintiff had mobility issues and bad knees that caused the fall). The jury did not find the plaintiff negligent. The jury awarded $45,000 for past pain, suffering and disability, and $45,000 for future pain, suffering, and disability. Plaintiff’s spouse was awarded $10,000 in loss of society and companionship.

Verdict: $0

For more information, please contact Patrick G. Heaney at pgh@ricelakelaw.com or 715-234-8105.


Lon H. Johnson v. Market & Johnson, Inc., et al.
Chippewa County Case No. 16-CV-100
July 2018

Facts: This was a construction worksite accident. Plaintiff, an employee of a painting contractor, was on scaffolding when a wheel on the scaffold rolled into a hole in the floor where electrical components had been installed, causing him to fall. Plaintiff filed suit against the general contractor, alleging common law negligence and violations of the Safe Place Statute. Plaintiff claimed serious injuries including a traumatic brain injury, an elbow injury, and permanent injuries to his hand.

Issues for Trial: Prior to trial, the parties stipulated to $175,000 in damages. The only issue for trial was liability.

At Trial: The jury found Plaintiff 100% at fault, resulting in a defense verdict.

Plaintiff’s Final Pre-Trial Demand: $60,000

Defendant’s Final Pre-Trial Offer: $25,000

Verdict: $0

For more information, please contact Sandy Hupfer at shupfer@secura.net.


James J. Pagor v. B&D Farms, LLP, et al.
Juneau County Case No. 16-CV-103
May 2018

Facts: This was a single car motor vehicle accident. Plaintiff was a 30-year-old male who was traveling down a country road at night, claiming he hit water on the road causing his car to hydroplane and roll over. SECURA’s insured owned a large farm in the area that runs a water irrigation system. Plaintiff claimed the water sprayed from the insured’s irrigation system onto the road and pooled, creating a hazard. The plaintiff denied consuming alcohol or speeding, but was unable to see the water on the road until too late. Witnesses in a nearby home heard a loud noise and called 911 as they ran down their driveway to offer assistance. When they got to the end of the driveway, they saw the car overturned and plaintiff climbing out of the window. They asked plaintiff if he was okay and told him they had called 911. The plaintiff then ran into a field and left the scene of the accident. He claimed he left to tell his friend who owned the vehicle that he was in an accident, as he did not want him to hear it from someone else. Testimony by the witnesses at the scene indicated the odor of alcohol on his breath when they spoke with him. Plaintiff’s claimed injuries were primarily soft tissue in nature. Plaintiff went to urgent care the next day and followed up with chiropractic care.

Issues for Trial: The main issue for trial was liability.

At Trial: Plaintiff sought $5,725.90 in medical bills. He presented medical testimony that he would need future treatment. The jury returned a verdict finding plaintiff 95% at fault and the insured 5% at fault. They awarded $45,000 for future pain and suffering, $2,500 for past pain and suffering, and the full amount of past medical bills.

Plaintiff’s Final Pre-Trial Demand: $35,000

Defendant’s Final Pre-Trial Offer: $1,000

Verdict: $0

For more information, please contact Sandy Hupfer at shupfer@secura.net.


Hastings Mutual Insurance Company, et al. v. T&L Investments, Inc., et al.
Ashland County Case No. 16-CV-45
February 2018

Facts: This was a trip-and-fall incident on SECURA’s insured’s sidewalk. Hastings alleged our insured was negligent in failing to repair an upheaval in the sidewalk, likely caused by frost. Our insured was not notified of the incident until several months later, after the sidewalk had been repaired. They claimed the upheaval had been identified, painted, and a contractor was retained to repair it, all prior to plaintiff’s fall. The injured party sustained a wrist fracture and received Worker’s Compensation benefits from Hastings.

Issues for Trial: Damages were stipulated to and the case proceeded to trial on liability only.

At Trial: The jury returned a defense verdict in favor of SECURA’s insured.

Plaintiff’s Final Pre-Trial Demand: $50,000

Defendant’s Final Pre-Trial Offer: $6,000

Verdict: $0

For more information, please contact Sandy Hupfer at shupfer@secura.net.