News from Around the State: Trials and Verdicts

WDC Journal Edition: Summer 2019

Mark Pattinson, et al. v. Richard Ubersox, et al.
Lafayette County Case No. 16-CV-70
May 2019

Facts: This case arose from a motorcycle-versus-pickup-truck accident. Defendant pulled out of his driveway and into the path of the plaintiff, who was operating his motorcycle on a rural country highway. When defendant pulled out, plaintiff had to lay his bike down and collided with the pickup, suffering very significant injuries, including multiple rib fractures, facial fractures, and spinal fractures. He treated extensively afterward, including two facial surgeries and a six-level thoracic-lumbar fusion, and had significant permanent residual impairments.

Issues for Trial: Liability was contested. Notably, the plaintiff had been drinking prior to the accident, but, due to the severity of his injuries, his drinking was not investigated by law enforcement. A blood test at the emergency room revealed a whole blood equivalent blood alcohol concentration of 0.08. Defendants’ toxicologist opined that this meant plaintiff’s BAC at the time of the accident was 0.10, and that he would have been experiencing multiple driver impairments as a result, including a delayed perception-reaction time. There was also conflicting evidence about whether plaintiff was speeding, and retained engineers offered competing opinions in this regard.

The parties stipulated to past medical expenses of nearly $350,000. In addition, plaintiff pursued a loss of future earning capacity claim based on the opinions of his retained vocational expert of $1 million. Defendants retained a forensic accountant who offered opinions that the plaintiff had been earning little more prior to the accident than his vocational expert opined he was capable of earning after the accident.

At Trial: Trial lasted a week and included testimony from seventeen witnesses. During closing arguments, plaintiff’s attorney asked for $3 million. The jury deliberated for three hours and returned a verdict finding that the plaintiff was 70% responsible for the accident, resulting in no recovery. The jury assessed damages at $1.3 million.

Plaintiff’s Final Pre-Trial Demand: $1,250,000 (policy limit demand)

Defendant’s Final Pre-Trial Offer: $750,000 offer of judgment

Verdict: $0 (did not beat offer of judgment)

For more information, please contact Andrew B. Hebl at ahebl@boardmanclark.com.


Jesse L. Meyer, et al. vs. Rural Mutual Insurance Company, et al.
Taylor County Case No. 17-CV-4
March 2019

Facts: Plaintiff worked for Advanced Disposal. Defendant rented a dumpster from Advanced Disposal to dispose of debris from a demolished garage. When plaintiff came to haul the dumpster away, he found the dumpster blocked and overloaded. He called his dispatcher and left. The dispatcher contacted defendant and told him to remove the items blocking access to the dumpster. The next day, plaintiff returned to pick up the dumpster. He found that the door at the end of the dumpster would not close. He again called his dispatcher, who contacted the defendant, who arrived on scene. They could not push the door closed. Defendant offered to use his SUV to push the door shut, and plaintiff agreed. The idea worked, and the door closed. Plaintiff latched the door shut, but before securing the latch pin, gestured to defendant to back away. Defendant did so, which caused the door to burst open, striking plaintiff in the face and causing multiple nasal and facial fractures.

Issues for Trial: Plaintiff claimed medical expenses of $13,874.43 and wage loss of $5,785.92. In addition, plaintiff’s wife brought a claim for loss of consortium. Liability was contested.

At Trial: Plaintiff argued that defendant was negligent in overloading the dumpster, in suggesting the use of a vehicle to close the door, and in backing away prematurely. The defense argued that plaintiff was the person who had the best opportunity to safely secure the latch pin before gesturing to defendant to back away. Plaintiff’s employer was also on the verdict, with the argument being that the employer failed to adequately train him to deal with the situation he encountered.

Plaintiff claimed he had a permanent loss of sense of taste and smell as a result of the incident. The defense presented testimony from a bartender at the restaurant where plaintiff and his wife went every Friday night for a fish fry to show that plaintiff ordered his Old Fashion with a specific whiskey and noticed on one occasion when rail whiskey was substituted, and that he ordered a variety of different entrées and side dishes, and complimented the cook on how his meals tasted.

Plaintiffs’ attorney did not ask for a specific amount for past and future pain, suffering and disability, instead suggesting to the jury that the past pain and suffering was significant, and that the loss of sense of taste and smell for life would merit a very significant award of damages. The defense suggested a sum of $10,000 for past and future pain, suffering and disability, and $500 for loss of consortium.

The jury found both plaintiff and defendant negligent, but found defendant’s negligence was not a cause of the accident. It found no negligence on plaintiff’s employer. The jury awarded $0 for medical expenses, $4,178.72 for wage loss (the reduced amount argued by the defense), $0 for past and future pain suffering and disability, and $0 for loss of consortium.

Plaintiff’s Final Pre-Trial Demand: $150,000

Defendant’s Final Pre-Trial Offer: No offer was made, as it became clear at mediation that plaintiffs would not consider any offer in the range the defendants would be willing to pay.

Verdict: $0

For more information, please contact David Piehler at piehler@wislaw.com.


Cameron D. Anderson, et al. v. Daniel Slaikeu, et al.
Polk County Case No. 17-CV-39
March 2019

Facts: Plaintiff was a self-employed handyman who was working on defendant’s hobby farm. Defendant was attempting to lift an old barn beam with a tractor and did not see plaintiff walking nearby. Instead of lifting the beam, defendant pushed the beam into plaintiff’s right leg, causing a fracture of the medial malleolus and fibula. Plaintiff’s treating surgeon opted not to surgically repair the right ankle and leg fractures. The treating surgeon opined that the injuries fully healed in an appropriate position approximately nine months post-accident.

Plaintiff hired an expert orthopedic surgeon who opined that the medial malleolus and fibula fractures were severe and should have been fixed surgically. The expert further opined that the fractures healed in “malposition” and aggravated a pre-existing left foot injury. Finally, the expert opined that plaintiff needed several future surgeries, including arthroscopic ankle surgery and eventual replacement.

Issues for Trial: Liability and damages were disputed. The parties stipulated to past medical expenses of $10,892.21. In addition, plaintiff was claiming past and future loss of earning capacity, future medical expenses, past and future pain, suffering and disability, and plaintiff’s wife was making a loss of consortium claim.

At Trial: Plaintiff asked the jury for $600,000 in past and future loss of earning capacity and approximately $75,000 for future medical expenses. The jury found contributory negligence on the part of the plaintiff; however, did not find it was causal. The jury awarded $5,000 for past loss of earning capacity, $0 for future loss of earning capacity, $0 for future medical expenses, $15,000 for past pain, suffering and disability, $15,000 for future pain, suffering and disability, and $5,000 to plaintiff’s wife for loss of consortium.

Plaintiff’s Final Pre-Trial Demand: $200,000

Defendant’s Final Pre-Trial Offer: $49,500 offer of judgment to plaintiff and $500 offer of judgment to wife

Verdict: $45,892.21 to plaintiff (did not beat offer of judgment) and $5,000 to wife

For more information, please contact Patrick G. Heaney at pgh@ricelakelaw.com.


Estate of Gary Shovers v. Blane Goodman Funeral Services
Milwaukee County Case No. 16-CV-9163
February 2019

Facts:This case arose out of a dispute over a Jewish Funeral. Orthodox Jewish burial tradition prohibits embalming and requires ritualistic washing of the body, wrapping the body in a white cotton or linen shroud, and placing the body in an unsealed all wood casket to allow for natural decomposition. Defendant, Blane Goodman Funeral Services, advertised itself as a Jewish funeral home willing and able to provide funeral and burial services according to Jewish custom.

Melissa Shovers passed away alone in her apartment and her body was not discovered for several weeks, badly decomposed. Following an autopsy, her remains were placed in a heat sealed BioSeal bag. Her father, Gary Shovers, a member of the Jewish faith, contracted with Blane Goodman Funeral Services to perform the funeral, allegedly relying on the advertisements to provide Ms. Shovers with a traditional Jewish funeral. Due to the advanced decomposition of Ms. Shovers’ body, Blane Goodman Funeral Services recommended burying Ms. Shovers in the BioSeal bag, which would deviate from technical traditional Jewish custom. Gary Shovers initially agreed. Shortly before the funeral, however, his brother, Brad Shovers, convinced him that the BioSeal bag needed to be opened prior to the burial or Ms. Shovers would never be at peace. Brad Shovers demanded that Blane Goodman Funeral Services cut open the BioSeal bag prior to burial. Blane Goodman Funeral Services refused to open the bag because of concerns that doing so would expose pallbearers and funeral attendees to a biohazardous condition and extremely disturbing odors. Ms. Shovers’ funeral was conducted by Blane Goodman Funeral Services with her remains still in the BioSeal bag. Gary Shovers later contracted with Blane Goodman Funeral Services to exhume Ms. Shovers’ body and cut open the bag. Mr. Shovers ultimately hired a different funeral home to disinter Ms. Shovers and rebury her after cutting open the BioSeal bag.

Issues for Trial:Gary Shovers sued Blane Goodman Funeral Services for: (1) negligent infliction of emotional distress; (2) false advertising under Wis. Stats. §100.18; and (3) civil theft under Wis. Stats. 895.446. During the pendency of the litigation, Gary Shovers passed away. Consequently, the negligent infliction of emotional distress claim was dismissed. The case proceeded to trial on the false advertising and civil theft claims.

At Trial: Plaintiff sought the original funeral contract amount of $11,000, treble damages, and actual attorney fees in excess of $200,000. After four full days of trial, the jury returned a defense verdict, finding that (1) Blane Goodman’s advertisements and representations were not untrue, deceptive, or misleading; and (2) that Blane Goodman did not misappropriate money from the plaintiff.

Verdict:$0

For more information, please contact Andrea P. Goode at agoode@borgelt.com.


Michael D. Williams, et al. v. Progressive Universal Ins. Co., et al.
Milwaukee County Case No. 16-CV-7107
October 2018

Facts:This case involved a side-swipe car accident.

Issues for Trial:The plaintiffs, a driver and her passenger, were claiming $27,000 in past medical expenses. Liability was contested.

At Trial: The jury found the plaintiff-driver 60% at fault. For damages, the jury awarded $1,030 to the driver for past medical expenses, $1,591 to the passenger for past medical expenses, and no amount for past pain, suffering and disability to either plaintiff.

Plaintiff’s Final Pre-Trial Demand:$15,000 driver; $3,000 passenger

Defendant’s Final Pre-Trial Offer:$3,000 offer of judgment to each plaintiff

Verdict:$636.40 to the passenger (did not beat offer of judgment)

For more information, please contact Joseph Ryan at josephryan@theryanlawoffice.com.


Lloyd Zeise v. Jeffrey P. Tess, et al.
Brown County Case No. 17-CV-1236
September 2018

Facts:This case involved a low-velocity, rear-end accident involving plaintiff on a motorcycle.

Issues for Trial:Plaintiff was claiming $7,500 in past medical expenses. Liability was admitted prior to trial.

At Trial: The jury awarded $3,980.65 in past medical expenses, $500 in past pain, suffering and disability, and $277 in past loss of earnings. Plaintiff beat defendant’s offer of judgment by $200.

Plaintiff’s Final Pre-Trial Demand:$15,000

Defendant’s Final Pre-Trial Offer:$4,500 offer of judgment

Verdict:$4,757.65

For more information, please contact Joseph Ryan at josephryan@theryanlawoffice.com.


Leslie Morales v. Mackenzie Bailey, et al.

Kenosha County Case No. 17-CV-689

August 2018

Facts:This case involved a low-velocity, rear-end car accident. Plaintiff was claiming a permanent TMJ injury.

Issues for Trial:Plaintiff was claiming $11,809.91 in past medical expenses. Liability was admitted prior to trial.

At Trial: The jury awarded only $598 in past medical expenses, and no amount for past pain, suffering and disability.

Plaintiff’s Final Pre-Trial Demand:No demand made

Defendant’s Final Pre-Trial Offer:$6,500 offer of judgment

Verdict:$598 (did not beat offer of judgment)

For more information, please contact Joseph Ryan at josephryan@theryanlawoffice.com.


Elva Perez-Rivera v. Brandon Kostka, et al.
Waukesha County Case No. 16-CV-1863
May 2018

Facts:This case involved a low-velocity, rear-end car accident.

Issues for Trial:Plaintiff was claiming $26,000 in past medical expenses. Liability was admitted prior to trial.

At Trial: The jury awarded only $131 in past medical expenses, and no amount for past pain, suffering and disability.

Plaintiff’s Final Pre-Trial Demand:$30,000

Defendant’s Final Pre-Trial Offer:$7,500 offer of judgment

Verdict:$131 (did not beat offer of judgment)

For more information, please contact Joseph Ryan at josephryan@theryanlawoffice.com.


Michael G. Wirth, et al. v. State Farm Mut. Auto. Ins. Co., et al.
Dane County Case No. 16-CV-3154
April 2018

Facts:This case involved a motor vehicle accident. Plaintiff was travelling 35 mph when the defendant t-boned his vehicle, spinning his car 180 degrees. Plaintiff was claiming a permanent neck injury.

Issues for Trial:Plaintiff’s claimed medical expenses were $33,768.13. Liability was admitted prior to trial.

At Trial: Plaintiff asked the jury for $100,000 during closing arguments. The jury awarded $24,000 in past medical expenses, $1,200 in past wage loss, and $10,000 in past pain, suffering and disability.

Plaintiff’s Final Pre-Trial Demand:$75,000 offer of settlement

Defendant’s Final Pre-Trial Offer:$42,500 offer of judgment

Verdict: $35,200 (did not beat offer of judgment)

For more information, please contact Joseph Ryan at josephryan@theryanlawoffice.com.