The two sides of a personal-injury settlement were back in court last week to determine if a lawyer for the plaintiffs had inside information from a court staffer that allowed him to quickly settle his case for $25 million in the minutes before his opponent learned of the jury’s intentions to rule in the defense’s favor.
The June trial
On June 9, the final day of a four-week trial at the Daley Center before Cook County Associate Judge Elizabeth M. Budzinski, the 12-person jury began its deliberations around 2:30 p.m.
At 3:50, a juror sent the judge a note asking whether the jury could assign all liability to an “empty chair” defendant rather than the one actually facing trial.
By the end of that afternoon, the parties had entered into a $25 million settlement — presented in open court and entered by Budzinski roughly around 4:45 p.m., dismissing the case.
But rather than informing the jury right away that the case had settled and sending the jurors home, Budzinski provided an answer to the jury note and let the jurors continue deliberating until the end of the work day — only about 15 minutes longer.
The jury didn’t need 15 minutes. Within about five minutes, it returned from the jury room and found in favor of the defense. With the case dismissed by agreement minutes earlier, no verdict was ever entered into the court record.
But John W. Patton Jr. of Patton & Ryan LLC, the lead counsel for defendant Brunswick Corp., immediately argued the jury’s decision should be the true end result of the trial.
On June 12, Patton filed a motion to vacate the settlement and enter judgment on the would-be verdict. He requested an evidentiary hearing on the matter.
Patton’s motion alleged the settlement was “procured through deliberate concealment of a material fact regarding the existence of a jury note,” and alleged that plaintiff’s counsel, Mark E. McNabola of McNabola Law Group, asked the court clerk assigned to Budzinski’s courtroom to stall in contacting Patton about the jury note while McNabola rushed to settle the case.
McNabola, for his part, remains adamant he did nothing wrong and dismisses the post-trial hubbub as an attempt by Patton to walk back a contract his client willingly signed.
The evidentiary hearing
In the evidentiary hearing that began last Thursday before Circuit Judge Daniel J. Lynch, the court is trying to piece together exactly what happened in that roughly 135-minute span on June 9. The hearing aims to address whether the discrepancy in what information the court staff told to each side of the suit amounted to fraudulent concealment, and whether McNabola directly instructed court staff not to inform the defense about what the note said.
In Patton’s motion to vacate, he outlined the criteria needed in order to vacate a contract on fraudulent concealment grounds.
The moving party must demonstrate that the other party concealed a material fact in a situation where he had a duty to share that fact, and that the opponent intended to mislead him.
The moving party also must show that the information couldn’t have been reasonably obtained elsewhere or that he was prevented from getting it.
And he must show he would have acted differently had he been aware of the hidden information.
Dan K. Webb, a partner at Winston & Strawn LLP brought on by Brunswick for the evidentiary hearings, believes his client has established those factors to warrant vacating the settlement.
Webb alleged McNabola learned about the existence and contents of a jury note through a conversation with a court clerk, and that McNabola then told the clerk — who followed his instruction — to wait to call the defense about the note. He alleged that McNabola falsely told the court neither his client nor the defense were interested in learning the contents of the note when the defense hadn’t yet learned about its existence for another 29 minutes and the clerk told the court she called both parties at the same time despite the lag in time.
But C. Barry Montgomery of Williams, Montgomery & John Ltd., brought on as counsel for plaintiffs Scot and Patricia Vandenberg, rejects the notion that McNabola committed any fraud in reaching the settlement as “unequivocally false,” noting there is “absolutely no evidence” to prove such an exchange occurred.
“I don’t know how they’re going to prove that,” Montgomery said.
Montgomery in his remarks emphasized that after Budzinski disclosed the note’s contents to both plaintiff and defense counsel in chambers, no defense attorney who was present requested to retract the settlement offer.
He said Webb’s “fraud scheme” hinges on a “linchpin” theory that McNabola told the clerk to “hold off” on contacting Patton so he could settle the case.
And there is no evidence to prove such a notion, Montgomery contended.
“If there was, we’d all know it by now,” he said.
In the first two days of the hearing on Thursday and Friday, Lynch heard testimony from Patton, clerk Tatiana Agee and Budzinski’s former extern, Brook Reynolds, a student at IIT Chicago-Kent College of Law. McNabola and one of his colleagues will testify when the hearing continues on Monday.
Primarily at issue is whether Agee divulged the jury note’s contents to McNabola, whether McNabola requested she wait to call defense counsel about it — and whether she obliged such a request.
While Budzinski will not testify during the hearing, she did file a memorandum on June 15 to offer her account of the events surrounding the settlement and jury deliberations, including conversations that took place inside the judge’s chambers.
In that memorandum, Budzinski wrote Patton requested she enter an order that reflected the jury’s defense verdict “as well as the fact that the case had been settled, in spite of the fact that a dismissal order had already been entered.” When she asked Patton for his legal basis for the request, Budzinski wrote, Patton said both he and the court would get “credit” for the verdict.
“Mr. Patton’s request was denied,” she wrote. “Mr. Patton reiterated that he had never been notified of the note from the jury.”
Budzinski wrote that she instructed Agee to call both sides to inform them of the existence of a jury note as soon as it arrived to have the lawyers come to the courthouse. But she also wrote that the day after the trial, her extern, Reynolds — who was in the antechamber during Agee’s calls to the lawyers — told the judge she overheard Agee tell McNabola what was on the note.
Daley Center landline phone records presented in the hearing reveal a few facts: A call was made to McNabola’s phone at 3:52 p.m. — two minutes after the jury issued its note to Budzinski — and that a call was placed to Patton’s law office 29 minutes later at 4:19 p.m.
Reynolds testified that her desk’s close proximity to Agee’s allowed her to overhear Agee in a “hushed voice” disclose the note’s contents to McNabola.
After the phone conversation, Reynolds testified, Agee shared the note’s contents with her, too. She recalled Agee saying McNabola asked her to wait on contacting Patton, and that she told McNabola what was on the note because she likes to give plaintiffs an extra edge in settling their cases if possible.
In the same account, Reynolds also remembers Agee saying McNabola told her to “hold off” and not do anything right away because he was going to try to settle the case.
“I had a gut feeling of, ‘Is this OK?’” Reynolds testified. “I wasn’t really sure what was going on.”
Reynolds said she remembered Budzinski asking why any attorneys hadn’t shown up to her chambers within a half hour of asking Agee to summon them there. Agee insisted several times she called both Patton and McNabola one right after the other.
Reynolds said that exchange was her first indication Agee hadn’t called Patton. She remembered hearing Agee speak with McNabola but could not remember being present during any call Agee made to Patton.
During Montgomery’s cross-examination, Reynolds said she thought Agee was wrong to tell McNabola about the note’s contents. She said no one told her it was wrong, but she could tell it might be with how many times Budzinski asked about it.
“I thought it was wrong that she lied to Judge Budzinski,” Reynolds said of Agee.
But Agee hotly disputed the extern’s testimony.
Agee testified she received the jury’s note directly from a sheriff’s deputy —identified as Sue — and immediately handed it to Budzinski. After handing the note off, Agee testified, she told Budzinski she was on her way to call both McNabola and Patton but only reached McNabola before she got sidetracked with a request from a law office clerk who wanted service on a motion.
Agee said she wasn’t keeping track of time while tending to the law clerk but learned she missed a call from McNabola when she returned to Budzinski’s antechambers.
But that incoming call from McNabola’s phone is listed as a 42-second answered call. Agee testified that she doesn’t know who answered it because it happened while she was focused on serving her customer.
Agee said she returned McNabola’s call, learned from him the parties had reached their agreement and then successfully reached Patton at 4:19. During that phone call, Agee said, she told Patton she knew the case had settled but that the judge still wanted him to come to court to address the jury note.
Agee testified she didn’t know what the jury note said when she first called McNabola because she never saw its contents.
“It was folded when Sue gave it to me, and that’s exactly how I delivered it to the judge,” she said.
And if she would ever divulge contents of a jury note to a party in a case, she testified, she wouldn’t do it with another person in the room.
When Webb questioned Agee about the details in Budzinski’s memorandum, Agee said the judge’s account is “just he said, she said,” and she can’t think of a reason Reynolds would concoct such a story.
“It’s happened to me before,” she said. “I wouldn’t put it past anybody.”
No matter what the judge’s memorandum states, Agee testified, she’s confident she is an “excellent employee.”
“I take pride in my job, and I’m not going to do anything to jeopardize my job,” she said.
Cook County employee records say Agee was hired by Cook County Circuit Court Clerk Dorothy A. Brown’s office in June 2002.
During Patton’s testimony, the defense lawyer said that although he learned about the jury note’s existence at 4:19, he didn’t learn it was issued 29 minutes earlier at 3:50 until he returned to court.
“I wasn’t exactly a happy camper,” Patton said about the delay.
Patton testified that people in Budzinski’s courtroom were “frozen” when he arrived, including Agee — who was looking down. He said he waited several minutes until Budzinski and the jurors filed out from the jury room “like a conga line,” — with a jury form in hand — where he told her the settlement occurred before he ever learned of the note.
When Patton approached Budzinski’s chambers, he said, he could hear “clear shouting” on the other side of Budzinski’s closed door.
Though he could not make out full sentences, he said he heard his name, McNabola’s name and “the note” mentioned a few times.
When Reynolds let him through the door, Patton said Budzinski insisted the court had not committed any misconduct, but that Agee had admitted to her that McNabola told her not to call Patton so McNabola could settle the case.
Patton said Budzinski’s memorandum revealed new information to him — both that Agee shared the note’s contents with McNabola and that McNabola told the court neither his client nor the defense were interested in the note.
“I never had that conversation with Mr. McNabola that day,” he said.
On cross-examination, Montgomery noted that Patton is alleging McNabola committed fraud based on Agee’s conduct, which is something that McNabola could not control.
Montgomery also challenged Patton’s argument that McNabola should have told him about the note. When Montgomery asked Patton who is typically responsible for relaying such information, Patton said he couldn’t recall a time when a lawyer was ever charged with that task.
Montgomery also noted a sentence in Budzinski’s memorandum — which indicates Agee told her McNabola “had asked to her ‘hold off’ or something to that effect” — doesn’t specifically state McNabola told her to hold off on calling Patton. Patton responded that it would “strain one’s common sense and honesty” to interpret that sentence to mean anything else.
The post-trial proceedings stem from a 2009 case in which plaintiff Scot Vandenberg became paralyzed from the neck down after falling from a yacht’s top deck to its stern during a party sponsored by his employer, Trace Ambulance Inc.
Vandenberg and his wife Patricia filed a lawsuit in Cook County Circuit Court in 2010 against Brunswick and chartering company RQM LLC, asking for $103 million in damages for wage loss, loss of a normal life and a loss of consortium. RQM settled with the Vandenbergs, but maritime law required the so-called silent defendant to appear on the jury’s verdict form in case comparative fault was found against the company.
Settlement offers to McNabola from the defense’s AIG claims adjuster weren’t accepted before, during and immediately after the trial, which spanned from May 15 to June 9.
During his testimony, the claims adjuster said McNabola initially declined a $25 million offer right when the jury began deliberations.
Later that afternoon, he said he noticed missed calls from McNabola during his lunch before the two finally reconnected.
That’s when McNabola first demanded a $30 million settlement but accepted the $25 million offer when he learned the adjuster would need to receive new clearance on a higher offer from his superiors.
The adjuster testified McNabola confirmed the amount twice and said he’d explain why he and his clients changed their minds later.
“And he just abruptly hung up on me,” the adjuster said.
The case is docketed as Scott Vandenberg et. al v RQM LLC et. al, 10 L 3188.