EDWARDSVILLE — A driver is suing another motorist for allegedly causing a multiple-car collision in Edwardsville in April 2015.

Debra A. Augsburger filed a complaint on April 3 in the Madison County Circuit Court against Nicholas R. Woloszyn, alleging he failed to operate and control his vehicle in a safe manner to avoid collision.

According to the complaint, the plaintiff alleges that on April 21, 2015, she stopped her vehicle facing east on Illinois State Route 157 at or near its intersection with South University Drive in Edwardsville. At that time, the defendant turned left and collided into a third vehicle traveling north on SR 157, causing the third vehicle to collide with her car. 

As a result, Augsburger claims she suffered physical injuries and lost wages and incurred medical expenses. 

The plaintiff alleges Woloszyn failed to maintain a proper lookout for other motor vehicles, failed to yield the right of way and failed to reduce speed to avoid an accident.

The plaintiff requests a trial by jury and seeks judgment in an amount in excess of jurisdiction of the court plus costs and any other further relief the court deems just. 

She is represented by Laura A. Cole of Smith, Mendenhall, Selby and Cole in Alton.

Madison County Circuit Court case number 17-L-456

EDWARDSVILLE — A driver is suing a Highland motorist for alleged crashing into the rear of his truck.

Jeremy M. Morgan filed a complaint on March 29 in the Madison County Circuit Court against Reagan M. Thornton alleging she failed to exercise reasonable care and caution in the operation of her vehicle.

According to the complaint, the plaintiff alleges that on Aug. 11, 2015, he was driving in a southerly direction when the rear of his Chevy pickup was struck.

As a result, Morgan claims he suffered physical injuries and lost wages and incurred medical expenses.

The plaintiff alleges the defendant failed to decrease the speed of her vehicle to avoid collision, failed to keep proper lookout ahead for other traffic and failed to slow down, stop, swerve or turn her vehicle in order to avoid the collision.

The plaintiff requests a trial by jury and seeks judgment in a sum of money in excess of $50,000, which he says will fairly, adequate and fully compensate him for his injuries as determined at the time of trial and for his costs of suit. 

He is represented by Matthew R. Chapman of Becker, Schroader and Chapman PC in Granite City.

Madison County Circuit Court case number 17-L-431

EDWARDSVILLE — A motorcyclist is suing another motorist for allegedly causing a Granite City collision.

Andrew D. Blackwell filed a complaint on March 31 in the Madison County Circuit Court against Mary L. Bowles, alleging she failed to operate her motor vehicle in a safe, reasonable and prudent manner.

According to the complaint, the plaintiff alleges that on April 9, 2015, he stopped at the intersection of 22nd Street and Niedringhaus and used a blinker before turning left onto 22nd Street when his motorcycle was suddenly struck from the back end by Bowles, who was turning right onto the same road. 

As a result, Blackwell claims he suffered physical injuries and incurred out-of-pocket expenses and financial loss. 

The plaintiff alleges Bowles failed to make a proper right turn at an intersection, failed to keep proper lookout, failed stop her motor vehicle before the traffic crash and failed to give proper signal or warning to plaintiff.

The plaintiff requests a trial by jury and seeks judgment in an amount to exceed $50,000, plus costs of this lawsuit and any other further relief the court deems proper. 

He is represented by Patrick G. King of King Law Firm LLC in Alton.

Madison County Circuit Court case number 17-L-450

BELLEVILLE — A passenger is suing the driver of another vehicle for allegedly causing an East St. Louis crash. 

Nikki Felton filed a complaint on March 22 in the St. Clair County Circuit Court against Dennis Lloyd, of Bond County, alleging he failed to exercise ordinary care to avoid an accident.

According to the complaint, the plaintiff alleges that on May 18, 2015, she was a passenger in a vehicle when it was struck on the side by a vehicle driven by the defendant. 

As a result, Felton claims she sustained injuries, suffered pain and incurred medical bills. 

The plaintiff alleges Lloyd failed to apply his breaks when necessary to avoid the collision, drove at an excessive speed, failed to keep a proper lookout and failed to obey traffic signals.

The plaintiff requests a trial by jury and seeks judgment in an amount in excess of the jurisdictional minimum and any further relief the court deems just and proper. 

She is represented by Lorenzo Hester and Melissa K. Griffeth of The Hester Group LLC in St. Louis.

St. Clair County Circuit Court case number 17-L-148

BELLEVILLE — A passenger is suing two drivers following a Fairview Heights collision.

Mandy Hawkins filed a complaint on March 22 in the St. Clair County Circuit Court against Cortez Nunn and Carmelo Mendoza, alleging they failed to use reasonable care and caution while driving.

According to the complaint, the plaintiff alleges that on March 24, she was a passenger in the vehicle operated by Nunn, of East St. Louis, when they allegedly collided with Mendoza's vehicle. 

As a result, Hawkins claims she suffered physical injuries and lost wages and incurred medical expenses. 

The plaintiff alleges the defendants failed to keep lookout for other motorists in the public roadway, failed to keep their vehicle under proper control and failed to stop, swerve or otherwise maneuver their vehicle in order to avoid the collision.

The plaintiff requests a trial by jury and seeks judgment in an amount in excess of $50,000 plus cost of suit and for any other relief the court deems just and proper. 

She is represented by Ronald J. Foster Jr. of Walton Telken Foster LLC in Edwardsville.

St. Clair County Circuit Court case number 17-L-149

A contractor argues that a woman’s own negligence caused her injuries when she fell through a hole in the floor while he was working at a construction site.

Robyn O’Donnell filed the complaint on Dec. 29 against Ryan Shelton.

In her complaint, O’Donnell claims she was a business invitee on the premises where Shelton was working when she allegedly fell through a hole in the floor that was covered with soft plastic.

She alleges Shelton failed to provide warning of the dangerous condition.

Shelton answered the complaint on March 6 through attorneys John Cunningham and Daniel Hasenstab of Brown & James in Belleville.

He argues that the plaintiff’s alleged injuries were caused by her own negligence or carelessness for failing to keep a careful lookout and failing to exercise reasonable care while walking on the premises.

O’Donnell responded to the defendant’s affirmative defenses on March 10 through attorneys Andrew Toennies and Rodney Fourez of Lashly & Baer in St. Louis.

Shelton also filed a motion to dismiss count II, which seeks to recover on the basis of res ipsa loquitur.

“However, res ipsa loquitur is inapplicable and unnecessary in this case because there is sufficient evidence available to determine whether defendant was negligent, and plaintiff’s alleged injury could have occurred without the negligence of defendant,” the motion states.

The motion argues that res ipsa loquitur is not a cause of action in itself but is an evidentiary tool used to infer a breach of duty in a negligence suit when direct evidence about the accident cannot be ascertained.

“Res ipsa loquitur is not an alternative to negligence which can be invoked in a typical negligence action,” the motion states. “It only applies when the plaintiff can prove an injury, but must rely on a circumstantial inference to show how the injury occurred. To the contrary, where a party is able to obtain direct evidence of the cause of the injury, there is no need for an inference of negligence.”

Shelton argues that people witnessed the accident and O’Donnell was able to testify about the incident.

He also argues that res ipsa loquitur is not applicable because the alleged injury could occur without negligence by a defendant.

“Plaintiff has presented no reason for the application of the res ipsa loquitur doctrine because the allegation, falling through a hole, is not an event that typically occurs only if a defendant is negligent. It is equally plausible that plaintiff was not paying attention to her surroundings,” the motion states.

St. Clair County Circuit Court case number 16-L-679

A Maryville hospital denies liability in a mother’s suit alleging the hospital failed to provide HSV treatment for her newborn.

Phylica Lang, as parent and natural guardian of Kamden Durnell, filed her complaint on Aug. 12 against Dr. Christina Midkiff and Southwest Illinois Health Facilities Inc., doing business as Anderson Hospital.

Represented by Thomas Keefe Jr. of Belleville, Lang filed a first amended complaint on Feb. 10 against Midkiff, Anderson Hospital and Dr. Markel Owens.

In her complaint, Lang alleges Midkiff and Owens are medical doctors specializing in the field of obstetrics and gynecology and cared for Lang while she was pregnant with Durnell.

During her pregnancy, Lang claims she had the herpes simplex virus (HSV). However, she alleges the defendants failed to prescribe or recommend anti-viral medication or other appropriate treatment to prevent it from spreading to Durnell.

As a result of the defendants’ alleged negligence, Lang claims Durnell was infected with HSV and suffered brain damage.

Lang alleges the defendants failed to ensure adequate communication, charting or transfer of Lang’s HSV history, status and diagnosis between health care providers; failed to ensure adequate communication to Durnell’s pediatrician; failed to prescribe medication or treatment to protect Durnell; and failed to screen Durnell for HSV, take appropriate measures to monitor for HSV and treat HSV.

Anderson Hospital answered the first amended complaint on March 6 through attorneys Jonathan Ries and Jaime Bremerkamp of Sandberg Phoenix & von Gontard PC in St. Louis.

In its affirmative defenses, the hospital argues that any alleged damages or injuries were caused or contributed  by others for whose conduct the defendant is not responsible.

Anderson Hospital also argues that Lang and possible additional unknown parties contributed to any alleged damages.

Lang seeks a judgment of more than $75,000, plus costs.

St. Clair County Circuit Court case number 16-L-429

In newly appointed Madison County Circuit Judge David Dugan’s courtroom, a jury awarded a motorist $5,542 in a suit involving a parking lot collision, but also found that the plaintiff was 50 percent liable.

The one day trial ended when a jury returned the verdict in favor of plaintiff Kristia Monigan after deliberating for less than an hour.

Dugan was appointed to the bench last month to fill a vacancy created when former Circuit Judge John Barberis was elected to the appellate court in November.

The jury awarded Monigan $5,542 for medical expenses. After reducing the total damages by Monigan’s attributable negligence, the plaintiff recovered $2,771 in damages.

Monigan was represented by Keith Short of Collinsville.

Defendant Meghan Watt was represented by Tori Walls of Reed Armstrong Mudge & Morrissey in Edwardsville.

Monigan filed her original complaint on Dec. 22, 2015, and filed her first amended complaint on March 16, 2016.

In her first amended complaint, Monigan alleged she was parked in the parking lot of the Alton Walgreens on Nov. 10, 2014. She alleges Watt was also parked in the parking lot.

Monigan claimed she attempted to back her 1994 Honda Civic from her parking spot into the driving lane and stopped when she saw that Watt failed to yield and backed her vehicle into the front of the plaintiff’s vehicle.

Monigan alleged Watt had a duty to exercise ordinary care in operating her vehicle. She also alleged Watt failed to keep a proper lookout, failed to look and see things that were obviously visible, failed to keep her vehicle under control to avoid a collision and failed to use every precaution to avoid a collision.

As a result, Monigan alleged she suffered injuries to her neck, back and shoulders.

In her April 2016 answer to the first amended complaint, Watt argued that Monigan was contributorily negligent.

She also alleged Monigan’s injury was “so minimal it did not require the treatment she received from a chiropractor.”

She added that Monigan allegedly continued seeing her chiropractor after she stopped having complaints, “which was excessive.”

“Further, the chiropractor treated the plaintiff even though she was not having any complaints simply to complete a plan of treatment that required appearances in his office even though she did not have physical complaints,” the answer stated. “Defendant disputes the necessity of any chiropractic treatment but in any event believes the treatment should have been suspended when she reached the point where she was having no complaints or objective signs of injury.”

On July 28, the arbitrators offered an award in favor of Monigan for $8,500.

Watt rejected the award and requested a jury trial on Aug. 3.

Madison County Circuit Court case number 15-AR-498

A motion hearing has been set for next month regarding a manufacturer’s motion to dismiss a suit alleging two people were seriously injured when an aerial boom lift collapsed.

Sentry Roofing Inc. filed the complaint on Oct. 28 against Bil-Jax Inc., Airworx Construction Equipment & Supply LLC and Weise USA Inc.

In its complaint, Sentry Roofing alleges two of its employees were seriously injured when an aerial boom lift they were using collapsed, causing them to fall 15 feet to the ground.

As a result of the employees’ injuries, the plaintiff alleges it sustained damages including an insurance premium increase, loss of business, a decrease in production and increased labor costs and selling prices.

Sentry Roofing alleges Bil-Jax defectively designed and manufactured the subject boom lift, Airworx negligently sold the boom lift, and Airworx and Weise failed to perform proper routine inspections and maintenance.

Bil-Jax filed a motion to dismiss the complaint on Jan. 26 through attorneys Erick VanDorn and Erik Lewis of Belleville.

The defendant argues that counts I and II, which allege strict liability and negligence, are barred by the economic-loss doctrine, which allegedly provides that “a product liability plaintiff ‘cannot recover for solely economic loss under the tort theories of strict liability, negligence, or innocent misrepresentation.’”

“To the extent Plaintiff argues that its allegation of a loss of equipment valued at $25,000 brings its Complaint within the property damage exception to the economic-loss doctrine, Illinois courts have consistently held that the property damage must be to ‘other property,’ not the defective product at issue,” the motion states.

Bil-Jax further argues that count III, which makes a claim for breach of the implied warranty of merchantability, fails because the count also seeks solely economic losses. The defendant explains that the plaintiff is not in privity with Bil-Jax, which is required for recovery of economic loss under a warranty theory.

“Here, Plaintiff affirmatively pleaded that it ‘purchased the aerial boom lift at issue from Defendant Airworx,’” the motion states. “Because Plaintiff did not purchase the aerial boom lift from Bil-Jax (the manufacturer), it has no contractual relationship with Bil-Jax.”

The defendant also included a motion to transfer the case based on forum non conveniens, arguing that the case has no significant factual connection to St. Clair County.

Wiese filed a joinder to Bil-Jax’s motion to transfer on March 8 through attorneys Scott Pfeiffer and Daniel Cray of Cray Huber Horstman Heil & vanAusdal LLC in Chicago.

Associate Judge Chris Kolker scheduled a motion hearing for the motion to transfer on May 2 at 9 a.m.

Wiese answered the complaint on Jan. 12, arguing that any alleged damages were not caused by any direct or indirect act or omission by the defendant.

It also argues that Sentry Roofing had a duty to exercise reasonable and ordinary care for the safety of its employees.

Wiese alleges Sentry Roofing failed to initiate and maintain programs providing for frequent and regular inspections, failed to instruct each employee in the recognition and avoidance of unsafe conditions and regulations applicable to the environment, failed to require employees to wear a body belt with lanyard attached to the boom or basket while working from an aerial lift, failed to ensure that load limits were not exceeded, failed to ensure use of fall protection, failed to ensure the covers on the skylights were capable of supporting at least twice the weight of the employees and failed to ensure that employees exposed to fall hazards were trained by a competent person.

AirWorx answered the complaint on Jan. 12 through attorneys Mark Wolfe and Rhani Elrahman of Traub Lieberman Straus & Shrewsberry LLP in Chicago.

The defendant argues that the plaintiff’s failure to use due care and misuse of the aerial boom lift caused the alleged damages.

The plaintiff is represented by Gary Snodgrass and J. Phillip Bryant of Pitzer Snodgrass PC in St. Louis and Thomas Keefe Jr. of Keefe, Keefe & Unsell PC in Belleville.

St. Clair County Circuit Court case number 16-L-576

Great Lakes Educational Loan Services has until April 24 to respond to a proposed class action claiming financially stressed borrowers were steered into costly repayment programs instead of more affordable income-driven repayment options.

Plaintiff Nicole Denise Nelson, 33, of Shiloh filed suit in February in federal court in East St. Louis on behalf of potentially thousands of others seeking in excess of $5 million in compensatory, exemplary and punitive damages.

Nelson is an attorney formerly employed at the Belleville office of the Illinois Attorney General. She is represented by Brandon Wise and Paul Lesko of Pfeiffer Rosca Wolf Abdullah Carr & Kane in St. Louis.

The suit claims that Great Lakes Educational Loan Services, based in Madison, Wisc., has encouraged financially strapped borrowers into forbearance, "which is more costly to the student loan borrower but significantly less costly for the student loan servicer."

At the heart of the case is how Great Lakes handles borrowers experiencing financial hardships that are not temporary. Such borrowers are being encouraged to file for forbearances, rather than more appropriate income-driven repayment plans, because it's in the best interests of the student-loan servicer, the complaint says.

"In sum, counseling borrowers about alternative student loan payment plans and enrolling those student loan borrowers in income-driven repayment plans is costly for Defendants and its employees," the complaint says. "In contrast, enrollment of student loan borrowers in forbearance can often be completed over the phone, in a matter of minutes, and generally without the submission of any paperwork."

The complaint indicates that 10 as yet unnamed individual defendants may be added to the complaint.

Nelson began making payments on her student loans in December 2009 but entered into forbearance by November 2012, according to her complaint. Over the next few years, Nelson bounced in and out of forbearance, changed jobs and became unemployed, but when she discussed her situation over the phone with Great Lakes employees, she was told that her options were forbearance or a deferment, according to the complaint.

"Plaintiff was not informed of alternative or income-driven repayment option," the complaint says. "These other alternative or repayment options would have likely allowed Plaintiff a $0.00 or extremely low monthly payment, and would have counted as qualifying payments towards loan forgiveness. Instead, Plaintiff was, pursuant to Defendants' policy and practice, steered into forbearance."

The complaint points out that federal student loan borrowers who can't make monthly payments on their student loan debt may opt for alternative repayment plans that can include a percentage of their discretionary income or that can count toward loan forgiveness programs.

"However, despite the wide-spread availability of income-driven repayment plans, and their clear benefits to student loan borrowers, student loan servicers, like Great Lakes, systematically deterred Plaintiff, and upon information and belief, potentially thousands of other borrowers from obtaining access to some or all of the benefits and protections associated with income driven repayment plans," the complaint says.

Great Lakes steered financially stressed borrowers into forbearance programs instead of other, more long-term but less lucrative student-loan repayment options, according to the complaint.

"Consequently, Great Lakes has failed to perform its core duties in the servicing of student loans," the complaint says. "Instead, Great Lakes has violated its duties to Plaintiff and others similarly situated under the Illinois Consumer Fraud and Deceptive Business Practices Act, as well as violating the trust that student loan borrowers placed in the company, by steering struggling student loan borrowers into forbearance, rather than an eligible 'income-driven' repayment plan that could have provided monthly payments as low as $0.00 per month, a significant benefit to the struggling student loan borrower, but (potentially) less profitable for Defendants."

Members of the class in this case would be anyone who lives in Illinois, has student-loan contracts in the state and, since Feb. 21, 2014, "were subjected to Defendants’ unfair and deceptive conduct," the complaint says.

The case is presided over by District Judge Nancy Rosenstengel.

Magistrate Judge Stephen Williams will handle pre-trial proceedings.

BELLEVILLE — A couple is suing Air & Liquid Systems Corp., Aurora Pump Co., CBS Corp., Crown Cork & Seal Co. Inc., Flowserve Corp., FMC Corp. and others, citing alleged insufficient measures were taken to prevent injuries for manufacturing products containing asbestos.

Wayne M. Skipper and Dixie Skipper filed a complaint on March 30 in the St. Clair County Circuit Court alleging that the manufacturers of asbestos-containing products failed to exercise reasonable care for the safety of others.

According to the complaint, the plaintiffs allege that on Nov. 4, 2016, Skipper first became aware that he had developed lung cancer allegedly caused by inhalation of asbestos fibers emanating from products manufactured by defendants. Dixie Skipper claims she suffered loss of love, affection and service of her husband. 

The plaintiffs hold the defendants responsible because they allegedly negligently included asbestos fibers in their products when adequate substitutes were readily available and failed to provide adequate warnings and instructions to persons working with and around the products containing asbestos fibers.

The plaintiffs request a trial by jury and seek compensatory damages in excess of $50,000. They are represented by Ellian A. Flint and Laci M. Whitley of Flint Law Firm LLC in Edwardsville.

St. Clair County Circuit Court case number 17-L-172

EAST ST. LOUIS — Almost two years after the death of 72-year-old Olaphan Haley at a Franklin County rest stop, the wrongful-death lawsuit filed on her behalf by her husband William Haley Jr. has been settled. 

Olaphan Haley of Spokane, Wash., was walking across a parking lot at a rest area in Franklin County in May 2015 when she was struck and killed by the 73-year-old driver of a semi-truck.

An order authorizing settlement of the wrongful death case of William Haley Jr., individually and as representative of the estate of Olaphan Haley, deceased v. Westfreight Inc. was entered on March 30 in the U.S. District Court for the Southern District of Illinois. The settlement amount is confidential, except for sums set aside for medical and funeral expenses. Settlement proceeds are split as follows among Olaphan Haley’s survivors: Decedent’s spouse, William Haley receives 40 percent and 15 percent each to her emancipated children, Matthew Joseph Christopher Haley, Charles Edward Lail, Michael Norman Lail and William C. Haley III.

William Haley brought the case under the Illinois Wrongful Death Act and the Illinois Survival Act. The original complaint cited negligence and wrongful death as causes of action against William Lorentz and Westfreight Systems.

In exchange for the settlement, the plaintiff signed a confidential settlement agreement and all claims against the defendant were released. Page Law LLC represented the plaintiff, and they are granted attorney’s fees and expenses as part of the settlement.

According to the order, “The Court finds that the settlement of the claims for wrongful death and survival was entered into in good faith based upon arms-length negotiation between the parties and their counsel and that the settlement reflected by this instrument is in 'good faith' in accordance with 740 ILCS 100/1et. seq.”

The order was signed by Senior District Judge J. Phil Gilbert.

EDWARDSVILLE — A Missouri couple is suing motorists Paul Garbe and Matthew Skibinski, both of Madison County, citing alleged insufficient measures were taken to prevent injuries for a January 2016 accident.

Dominic Harris and Cindy Stapleton-Harris filed a complaint on March 23 in the Madison County Circuit Court against the defendants alleging that they failed to maintain proper control of their vehicle.

According to the complaint, the plaintiffs allege that, on Jan. 14, 2016, they were in a motor vehicle and were stopped in traffic on Highway 70 in St. Louis County when they were rear-ended by defendant Skibinski, who was rear-ended by defendant Garbe at the same time. As a result, the plaintiffs sustained injuries and suffered pain and suffering, medical expenses and lost wages.

The plaintiffs hold Garbe and Skibinski responsible because they allegedly carelessly drove their vehicle at a speed greater than reasonable and followed the vehicle in front of them too closely.

The plaintiffs request a trial by jury and seek judgment in their favor and against each defendant for an amount exceeding $25,000 for each plaintiff and for such other and further relief. They are represented by Gary K. Burger Jr. of Burger Law LLC in St. Louis.

Madison County Circuit Court case number 17-L-405

BELLEVILLE — A driver is suing another motorist for allegedly causing a collision at a red light in O'Fallon.

Trina L. Redd-Elliott filed a complaint on March 17 in the St. Clair County Circuit Court against Travis C. Borner alleging that the defendant failed to follow traffic signs to avoid an accident.

According to the complaint, the plaintiff alleges that, on Dec. 12, 2015, while driving in an easterly direction on an exit ramp of Interstate 64 in O'Fallon, her vehicle was struck during a red light. As a result, Redd-Elliot claims she suffered physical injuries and loss of wages and incurred medical expenses.

The plaintiff holds Borner responsible because he allegedly failed to keep a proper lookout for other vehicles, failed to properly apply the brakes of the vehicle and failed to stop at the red light and yield right of way to approaching traffic.

The plaintiff requests a trial by jury and seeks judgment in a sum of money in excess of $50,000 plus costs of suit and other further relief which the court deems proper. She is represented by Charles W. Courtney Jr. of Courtney, Clark and Mejias PC in Belleville.

St. Clair County Circuit Court case number 17-L-132

BENTON — The U.S. District Court for the Southern District of Illinois has granted Nationwide Advantage Mortgage Co.’s request tor attorney’s fees and court costs in a case against MidCountry Bank.

According to court records, the action involved a correspondent lender purchase agreement (CLPA) between NAMC and MidCountry.

NAMC charged that MidCountry breached the CLPA by failing to indemnify NAMC for losses stemming from an over-valued mortgage loan.

District Judge Staci M. Yandle granted granted summary judgment on NAMC’s behalf and found that under the terms of the CLPA, NAMC is entitled to recover reasonable attorney’s fees and costs.

Court records indicated that the CLPA further provides that it is “governed by the laws of the state of Iowa, determined without reference to its conflict of law provisions.”  

As a result, the court applied Iowa law in its assessment of reasonable attorney’s fees and costs.

NAMC also provided the court with information detailing the legal fees and costs incurred during the litigation process.

According to the affidavits, NAMC had attorney’s fees in the amount of $62,509.00 and costs in the amount of $5,170.74.

In its defense, MidCountry maintained that NAMC was not entitled to any attorney’s fees or costs because enforcement of the agreement was barred by the statute of limitations.

However, the court rejected MidCountry’s statute of limitations defense in its initial order granting summary judgment and did so in its latest ruling.

MidCountry also maintained that NAMC’s legal fees and costs were not reasonable because it also was seeking fees for a failed motion for leave to file a reply. It claimed the company was trying to “double recover for time spent on summary judgment.”

Representatives for MidCountry maintained that because the issues raised in its motion for summary judgment were also present in NAMC’s motion, they should not recover for “both categories of time.”

Moreover, they argued the court should reduce the fees sought by NAMC by 20 percent. Citing Eighth Circuit law, the company’s attorneys said the fees should be found to be inappropriate.

The court rejected this defense, noting that the Eighth Circuit cases cited do not apply to Iowa law.

Citing Hart v. Cusick, the court noted that under Iowa state law, attorney’s fees and costs are recoverable when the parties agree to such.  

Basing its decision on documentation submitted and arguments presented, the court found the fees and costs to be reasonable and appropriate. It granted NAMC attorney’s fees of $62,509.00 and $5,170.74 in costs.

BENTON — Magistrate Judge Stephen Williams has denied summary judgment in a case against a doctor who performed an alleged inappropriate pre-employment physical examination.

Plaintiff Matthew Johnson filed an amended complaint against Dr. Alfonso David in 2015, over what he claims to be a sexually transmitted disease test as part of his physical examination - without his consent. Johnson submitted to a physical examination screening to secure his employment at the Illinois Department of Corrections as a correctional officer, the suit says.

His examination was to determine his fitness level for the position and would include a hernia examination, to which Johnson consented. On April 26, 2010, David performed the physical examination on Johnson, requiring him to remove his pants for the hernia test. Johnson consented to the hernia test and testified that he understood that he would have to remove his pants for the test.

According to Williams order entered on March 23, during the hernia test, Johnson testified he felt uncomfortable as David spent two to five minutes examining his genitals and palpitating them. Johnson said that “the exam didn’t feel right, he had never had an exam like that before, and David never explained what he was doing.”

David testified that he palpitated the genitals in order to feel for masses in the groin area. He also said he looks for tenderness, abnormalities and discharge as pain or an infection may prevent an individual from performing their duties in a position.

During the examination, the door to the room was unlocked, and Johnson claimed that he felt at any time he could leave.

Johnson filed his claim under the Illinois Gender Violence Act (IGVA), which includes battery as the “willful touching of the person of another without that person’s consent.”

David argued that he was due summary judgment in the case as there was “no evidence that David performed the exam without consent, that it was done in a sexual manner, or that the exam was completed under coercive conditions.”

For the case, two expert witnesses testified to the accuracy of David’s hernia test. Roger Wujek testified on behalf of David stating that examination of the penis head and shaft were within consent of the pre-employment physical examination. Wujek also testified later that the penile portion of the examination “was not a necessary part of the examination.”

Johnson’s witness, Barbara Bellar, testified that this type of examination “does not fall within the general consent of a pre-employment physical,” which the plaintiff did not consent to. She went on to say that the “only contact in the vicinity of the male genitalia would be to check for a hernia, but not the genitals themselves.”

Johnson claimed that David never told him of the genitalia portion of the exam as he would not have consented to this type of examination. David argued that Johnson failed to prove that his actions were sexual in any way and that the IGVA doesn’t define what contact is considered “of sexual nature.”

The court agreed that there was evidence that David’s examination was inappropriate when being considered for a pre-employment physical. The court also found that Johnson was not coerced in any way as the door was unlocked and he was never restrained.

While David tried to argue that Johnson’s claims should be dismissed because of the statute of limitations falling under patient care of two years, the court found that Johnson’s claims fall under the IGVA limitations of seven years, which he was well within.

David filed for summary judgment with this argument several times, but his claims for summary judgment were denied by the court.

EAST ST. LOUIS — District Judge David R. Herndon has granted summary judgment to defendants in a case in which a former FDA employee submitted numerous Freedom of Information Act (FOIA) requests and other correspondence over a three-year period regarding a glucose monitoring system. 

The plaintiff was suing two FDA officials for violating the act.

In the case J. Donald Henson Sr. v. Department of Health and Human Services(DHHS) and Food and Drug Administration (FDA), court documents show that Henson submitted 18 FOIA requests between November 2011 and August 2014. Additionally, according to the court’s summary judgment ruling, Henson “sent letters and emails seeking responses to questions and additional information, which FDA alleges were outside the scope of FOIA.” Additionally, Henson filed motions in court which were “repetitive in nature,” according to Herndon. 

“The majority of the records sought by Plaintiff Henson were related to FDA’s premarket approval of a particular device, PMA P980022, and its supplements," Herndon wrote. "PMA P980022 is an application by Medtronic Minimed Inc. for a continuous glucose monitoring system, which is a Class III device which was approved by the FDA on June 15, 1999...All of these premarket approval records are located in FDA’s Center for Devices and Radiological Health.”

According to the March 23 order, defendants responded to the plaintiff's numerous FOIA requests. By November 2015, the defendants had produced 7,964 documents. In June 2016, more documents were produced. Altogether, since the case was filed, the FDA has produced 8,439 pages of Bates-stamped documents and 457 pages of Vaughn indices (which justify any withholdings made in a FOIA response).

Herndon wrote that summary judgment motions are "routine" in cases such as this. 

In granting defendants’ motion for summary judgment, Herndon found that the FDA had properly produced all requested documents, properly redacting what was exempt from being disclosed. Also, the Vaughn indices properly explained what was redacted and why. 

On March 28, the plaintiff filed a notice of intent to appeal.

EAST ST. LOUIS — A company providing railway services is suing CSX Transportation Inc., citing alleged failure to pay more than $3 million for completed work.

The Alton and Southern Railway Company filed a complaint on March 27 in the U.S. District Court for the Southern District of Illinois alleging that the defendant failed to comply with the agreed-upon contract with the plaintiff.

According to the complaint, the plaintiff alleges that, between March 2014 and June 2016, it entered into a letter agreement whereby the plaintiff agreed to complete blocking and holding services for the defendant. Plaintiff satisfied all terms and conditions of the contracts and provided all services, but after numerous notifications, plaintiff did not receive payment for their services, the suit says. Alton and Southern holds CSX responsible because it allegedly failed to pay the charges due for the freight services amounting to $3,254,785.07.

The plaintiff requests a trial by jury and seeks judgment in the amount of $3,254,785.07, plus accrued interest, costs of this suit, attorney fees and other such relief as the court deems appropriate. The plaintiff is represented by Paul P. Waller III of Walker and Williams PC in Belleville.

U.S. District Court for the Southern District of Illinois case number 3:17-cv-00214

EAST ST. LOUIS — A man is suing Convergent Outsourcing Inc. and four unnamed individuals with the debt collection company, citing alleged misrepresentation in debt collection.

Martin R. McCormick Jr. filed a complaint on March 3 in the U.S. District Court for the Southern District of Illinois alleging that the defendants violated the Fair Debt Collection Practices Act.

According to the complaint, the plaintiff alleges that, on Sept. 13, 2016, he filed a bankruptcy petition and received protection from the filing, listing the alleged debt to Verizon Wireless, the collection agency's client in this case, at $617.53. Plaintiff requested that all communications related to the debt collection must be stopped, but he still received a letter attempting to collect the debt. As a result, McCormick claims he suffered emotional distress, fear and embarrassment. 

The plaintiff holds Convergent Outsourcing and its employees responsible because they allegedly engaged in debt collection efforts while plaintiff was maintaining an active bankruptcy case and used oppressive, deceptive and unfair collection tactics to collect the alleged debt.

The plaintiff requests a trial by jury and seeks judgment for statutory damages of $1,000, actual damages, pre- and post-judgment interest, costs, reasonable attorneys' fees and such other relief as the court deems just. He is represented by Nathan D. Sturycz of Edwardsville.

U.S. District Court for the Southern District of Illinois case number 3:17-cv-00229