News from Around the State: Trials and Verdicts
Sydney R. Wierzba, et al. v. State Farm Mutual Automobile Insurance Company, et al.

Brown County Case No. 18-CV-1278
October 26-28, 2021

Facts: On June 15, 2010, then 5-year-old Sydney Wierzba (along with her mom and grandmother), was a passenger in her grandfather’s van on a road trip to Montana. Her grandfather fell asleep behind the wheel and the van rolled. Sydney was physically uninjured save for some bumps and bruises but, now at 16 years old, claimed significant mental health issues including PTSD with a lifetime of future treatment and impairment. 

Issues for Trial: The parties stipulated to liability. The issue for trial was damages.

At Trial: Sydney first sought counseling two years after the accident. At six months post-accident, she had a totally uneventful well child visit with the record noting the parents had no concerns. They claimed that the mom’s injuries from the accident and the dad working so much (and being averse to therapy initially) caused the delay. She saw three total therapists. All initially diagnosed anxiety (with the records showing her mom said she has “always been an anxious child”) but once the attorneys got involved and had her sent to a psychologist for an evaluation, PTSD was diagnosed. Before seeing the third therapist, Sydney started to experience issues with peer bullying at school to the extent her mother pulled her out and home schooled her for two years. The psychologists testified that PTSD left her with a lessened ability to handle such peer stresses. In addition to the Bellin psychologist, the Habush firm retained Dr. Brad Grunert to diagnose PTSD. Defendant did not have a retained medical expert and used the records themselves to defend the claim.

A major issue fought by plaintiff’s counsel repeatedly was the defense playing Sydney’s videotaped deposition (from one year prior) in its case in chief. In her brief time on the witness stand at trial, Sydney’s testimony was hushed and brief, with most questions only requiring a “yes” or “no” answer. Plaintiffs mounted repeated objections but the video was allowed. The claim was that her guilt at not waking grandpa up when she saw his eyelids fluttering and the fear her mother was dead continued to haunt her, leading to the PTSD diagnosis. The video showed a very relaxed, comfortable then-15-year-old, who testified when she was helped out of the van at the scene, she went to find her mom who was lying in a ditch. On the witness stand she testified she feared her mom was dead but in her video she testified she and her mom had a conversation as soon as Sydney reached her, about getting the grasshoppers off her face, with Sydney laughing easily about the memory. 

Plaintiff’s Final Pre-Trial Demand: $150,000 of State Farm’s $200,000 available UIM limits (plaintiff had already recovered $100,000 from the grandfather’s insurance carrier, Safeco)
Defendant’s Final Pre-Trial Offer: $0
Verdict: $27,900 (which after application of the $100,000 already received from Safeco, resulted in a judgment in favor of State Farm)

For more information, contact Heather L. Nelson at [email protected].
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Secura Insurance, A Mutual Company v. Timothy A. Ludvigsen, et al.
Rusk County Case No. 20-CV-17
October 21, 2021

Facts: This was a subrogation property damage claim filed by SECURA against Allmerica’s insured, PUSH, Inc., and its driver, Timothy A. Ludvigsen. On September 27, 2019, plaintiff’s insured, Gary Baker, was driving a John Deere tractor hauling a manure spreader on County G in Rusk County. Ludvigsen was driving a PUSH pickup truck and came around a bend and behind a slow moving vehicle. Ludvigsen began to pass the slow moving farm equipment in the oncoming lane of a two-lane road and had nearly cleared the tractor when the tractor driver turned left into the pickup truck.

Issues for Trial: The parties stipulated to damages (including PUSH’s counterclaim for damages to its truck). The only issue for trial was liability.

At Trial: The damage was to the tractor’s front driver wheel and to the PUSH vehicle’s rear cab and cargo bed, leading defendants to argue that Baker did not look before he turned as Ludvigsen was already nearly past him. Baker stated he had his four-way flashers on but as he approached his turn he put his left turn signal on. He said he checked his sideview mirror three to four times and never saw the white pickup behind him or alongside of him. He said he checked his window right before turning and made his turn, and only saw the pickup an instant before contact. Ludvigsen testified that as he approached the slow moving spreader he only saw four-way flashers, checked to make sure oncoming traffic was clear, and began to make his passing maneuver. Ludvigsen never saw brake lights, a turn signal, or slowing of the vehicle before it turned into him, as he had almost passed it. The jury found that Ludvigsen was 100% negligent in causing the accident and that Baker was not at fault. The juror foreperson stated after trial that “given the damage to the wheel of the tractor” (it was flattened and knocked off), “the pickup must have been going at a high speed to cause that damage.” She advised that this was why she felt the tractor driver would never have seen the pickup despite claiming he checked three to four times and looking out of his window. Speed had not been argued by plaintiff’s counsel as a causative factor.

Plaintiff’s Final Pre-Trial Demand: $25,000
Defendant’s Final Pre-Trial Offer: $0
Verdict: $52,130.88

For more information, contact Heather L. Nelson at [email protected].
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Rachel G. Penewell v. Steven W. Reed, et al.
Dane County Case No. 19-CV-293
July 12-21, 2021

Facts: Plaintiff alleged missed diagnosis of compartment syndrome and failure to obtain informed consent against an urgent care physician.

Issues for Trial: Liability and damages were disputed. Plaintiff was claiming damages of approximately $2.5 million

At Trial: The Court entered a directed verdict on the informed consent claim. The jury found no negligence on the part of the urgent care physician.

Verdict: $0

For more information, please contact Mark T. Budzinski at [email protected] or Adam M. Fitzpatrick at [email protected]. You can also contact Erik H. Monson at [email protected] for more information.
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Kemp Grutt v. Christopher Sturm MD, et al.
Rock County Case No. 18-CV-1310
June 21-23, 2021

Facts: Plaintiff brought a facial disfigurement claim against an anesthesiologist after a lumbar fusion surgery 

Issues for Trial: Liability and damages were contested. Plaintiff’s alleged damages were approximately $600,000.

At Trial: The jury unanimously found no negligence on the part of the anesthesiologist and awarded $0 in damages.

Verdict: $0

For more information, please contact Mark Budzinski at [email protected] or John Healy at [email protected].
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Estate of Thomas H. Pliner, et al. v. Sean Maurice Yetman, et al.
Dane County Case No. 16-CV-2133
June 14-16, 2021

Facts: Plaintiff brought wrongful death medical malpractice claim against a cardiothoracic surgeon.

Issues for Trial: Liability and damages were contested. Plaintiffs’ alleged damages were approximately $1.3 million.

At Trial: The jury found no negligence on the part of the cardiothoracic surgeon and awarded $0 on all categories of damages.

Verdict: $0

For more information, please contact Mark T. Budzinski at [email protected] or Adam M. Fitzpatrick at [email protected].
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Jenna J. Erickson, et al. v. American Family Mutual Insurance Company, S.I., et al.
Eau Claire County Case No: 18-CV-498
June 1-3, 2021

Facts: In this uninsured motorist case, plaintiff claimed to have suffered head and neck injuries as a result of a motor vehicle accident that occurred in Eau Claire, Wisconsin on February 26, 2016. 

Issues for Trial: In addition to medical expenses, plaintiff claimed to have incurred $169,810 in lost earnings due to injuries she allegedly sustained in the accident. 

At Trial: Plaintiff’s earnings loss claim was voluntarily dismissed midway through trial. During closing argument, plaintiff’s counsel asked the jury to award his client $150,000 in compensation for her medical expenses and pain and suffering. After deliberation, the jury returned a defense verdict of only $8,000. 

Defendant’s Pre-Trial Statutory Offer of Judgment: $20,000
Verdict: $8,000

For more information, please contact Chester A. Isaacson at [email protected].
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