Verdicts & Settlements
HEAD-ON CRASH WITH SNOWPLOW
$5 MILLION FROM Professional Transportation Inc., plus confidential settlements by remaining parties: BNSF Railway, Heidinger and Outsource Administrators, Inc.
VANN AND GREGORY V.LINDA HEIDINGER, PROFESSIONAL TRANSPORTATION, INC., OUTSOURCE ADMINISTRATORS, INC., BNSF RAILWAY COMPANY
This case arose from a horrific head on collision on Highway 2 near Brockton MT on January 10, 2017. Linda Heidinger, a North Dakotan who worked as a shuttle driver for Professional Transportation Inc. “PTI” was tasked with shuttling BNSF Engineer Gayl Gregory and Conductor Robert Vann IV from Minot ND to Williston ND to relieve a train crew. During their trip to Williston the train moved so they were directed to travel to Glasgow, MT to catch another train. Linda Heidinger continued driving west to Glasgow with Robert Vann in her passenger seat and Gayl Gregory sitting directly behind her.
As Linda Heidinger was driving to Glasgow on Highway 2 she came up behind a State of Montana snowplow that was clearing the shoulder of the highway and throwing up a large snow cloud, completely obliterating any visibility. Without slowing down Linda Heidinger moved into the oncoming lane to pass the snowplow. Mr. Vann and Mr. Gregory immediately began shouting at her to get back over. Tragically, it was too late, and Linda Heidinger collided head on with an MDOT truck driven by Troy Barnett. This entire sequence was caught on the in-cab video camera which PTI has installed in all of their shuttle vehicles.
Gayl Gregory was severely injured in the head-on collision but was able to extricate himself from the vehicle. Robert Vann was mortally injured but still alive in the front passenger seat. Mr. Gregory attempted to help Mr. Vann from the vehicle but was unable to do so because of the damage to the truck. Mr. Gregory testified to hearing Mr. Vann moan and cry out while they waited for help to arrive. Mr. Vann died hours after the crash and after the first responders were able to remove him from the damaged vehicle. The MDOT driver and Linda Heidinger suffered injuries but were treated and released.
Ace American insurance who insured PTI moved the court to deposit $4.35 million into the Court registry, withholding the remainder of the $650,000 of the policy limits for payment of expenses. The Court accepted the deposit. Ace eventually deposited the additional $650,000 interpleader funds into the Federal Court registry.
Vann and Gregory filed complaints against PTI, Outsource Administrators Inc. (“OAI”), BNSF and Linda Heidinger individually. OAI is a transportation company who holds the contract with BNSF for transporting their crews. OAI then contracted with PTI to handle the actual transportation of the crew members. BNSF, OAI and PTI all held responsibility for safely transporting crew and employing shuttle drivers who adhered to traffic laws and safe driving habits.
After a lengthy and contentious discovery fight, Vann and Gregory finally received Linda Heidinger’s complete personnel file from PTI and OAI’s complete file on complaints regarding drivers. The discovery documents showed Linda Heidinger’s history of unsafe and reckless driving. Within her short 3.5 years of driving for PTI, she had been written up for numerous driving infractions including speeding and following too close. An audit conducted by PTI officials designated her as “high risk” and stated she should have been terminated for speeding violations in the past. Additionally, the records produced by BNSF documented a call from a BNSF crew member on January 1, 2017 (10 days before the crash) where the crew refused to ride with Linda Heidinger stating she liked to drive in the snow and ice with the cruise control on and she had the nickname of “Leadfoot Linda.” Another BNSF engineer who was interviewed after the crash, Victor Krehlik, stated that Linda Heidinger passed a semi on a sharp curve with no visibility as to oncoming traffic. It became clear Linda Heidinger’s unsafe and reckless driving habits were known by not only the crews she drove but her own employers. Vann and Gregory subsequently requested leave to assert punitive claims against Linda Heidinger, PTI and OAI in light of the evidence that showed she was allowed to continue to drive after they had received notice and information that showed she was horribly unsafe.
All parties confidentially settled all claims at a settlement conference with Magistrate Johnston in Butte. Vann and Gregory then moved for disbursement of the interpleader funds in the amount of $4,985,000 plus any accrued interest after deduction of the administrative fee.
The remaining defendants entered into confidential settlements with Plaintiffs.
REPRESENTATION OF EMPLOYEE AGAINST EMPLOYER IN TRUCK ROLLOVER AS PASSENGER
$4.99 million dollar, 12-0 unanimous Federal Court verdict. BNSF pays entire verdict, plus costs and interest
BARRON V. BNSF
BNSF hired Adam Barron on August 4, 2014 as a signal maintainer. On November 12, 2014 Barron was a restrained passenger in a BNSF Hyrail pickup truck. Barron and the driver, Andrew Greenwood were traveling westbound on Highway 12 returning from Bowman, ND to Baker, MT. Less than a half mile from the Montana border, Greenwood lost control of the pickup and it rolled one time on the icy road. Greenwood had been traveling 40 mph.
Barron was taken to Fallon Medical Complex in Baker and released the same day. Ten days later, MRIs at Holy Rosary in Miles City revealed C6-7 disc herniation and T9-10 disc bulge. Barron was never able to return to work.
David Paoli tried the case for a week in late December 2021 in Bismarck, N.D. The Bismarck federal court jury awarded Barron $200,000 for past and future medical expenses, more than $3 million for past and future earnings and benefits, and $1.65 million in non-economic damages.
BNSF filed post-trial motions requesting the jury verdict be reduced or a new trial ordered. In July 2022, U.S. District Judge Daniel M. Traynor denied BNSF’s post-trial motions.
BNSF had asked for two reductions to the verdict — a $200,000 reduction of past and future medical expenses, arguing that any medical expenses were not supported by evidence, and a $222,038 reduction because Barron had received insurance coverage for his medical expenses. Judge Traynor found that the jury did have evidence that supported the award of medical expenses, and BNSF had the opportunity to cross-examine Barron’s witnesses, while it was up to the jury to decide whose testimony to credit. Judge Traynor also found that under state law, an employer is not entitled to offset medical insurance that is offered as partial consideration for employment.
BNSF never filed an appeal to the Eighth Circuit.
BNSF paid the verdict, plus costs and interest.
SEMI TRUCK V. PICKUP
Multi-Million Dollar Settlement
Yakimow v. Crapo, LTD
This case arose as a result of a serious personal injury collision caused by a driver of a semi rear-ending our client, Ronald (“Ron”) Yakimow. Ron was traveling north on Highway 287 in Madison County, Montana on November 17, 2014 when he activated his left turn signal and prepared to turn onto Johnny Gulch Road. The driver of the semi, David Davis, was driving on behalf of Crapo, LTD, and hauling double trailers containing road salt – his entire vehicle combination weighed 106,000 pounds. Road conditions and visibility were good.
Davis was speeding, traveling at 70-mph in a 60-mph speed zone just prior to the crash. David Davis failed to see Ron’s red truck, despite miles of clear visibility and slammed into Ron’s vehicle completely demolishing the truck and significantly injuring Ron, his passenger, and David Davis. As a result of the high-speed collision, Ron suffered debilitating, permanent, and completely disabling injuries.
Ron injuries caused him to be unable to return to work in his long-standing and successful career as a Maintenance Machinist. Company doctors determined that Ron could not be cleared for work, that he was unable to perform any past relevant work, and that his past work as a machinist exceeded his functional capacity as a result of the injuries he sustained.
Despite aggravated liability being clear and David Davis being cited for careless driving (and paying the associated fine), Crapo, LTD initially denied that its driver caused the collision. Crapo, LTD and David Davis claimed the collision was “50/50” responsibility split between Crapo, LTD and Ron. David Davis claimed that the citation related to this collision, for which he paid a fine, was “not legit.” Through investigation, Paoli Law Firm discovered that David Davis had a long record of driving infractions and past collisions. Similar to this collision, David Davis also claimed that each of his past citations and collisions were not his fault despite investigations proving otherwise.
After extensive deposition questioning, Crapo, LTD admitted liability and causation. Crapo, LTD finally admitted that the collision was caused by David Ross Davis following too closely, driving in a distracted, inattentive, or careless manner, or driving too fast. Incredibly, Davis continued to maintain he and Ron were 50/50 responsible each:
BY DAVID DAVIS: May I make a statement?
Q. (BY MR. PAOLI) Sure.
A. The reason I paid the ticket from 2007 — November 17th, 2014, I had called the court, and had a scheduled court date in January because I was going to fight the ticket because I should never have gotten the ticket. Not that I was not at fault, I’m 50 percent at fault, they’re 50 percent at fault in my book.
A. Well, I wasn’t the only one there, was I?
Q. Who is 50 — you’re 50 percent at fault, and who else is 50 percent at fault?
A. The driver.
Q. What did he do wrong?
A. He stopped in the middle of the road in the right-hand lane.
Q. He’s making a left-hand turn?
Q. (BY MR. PAOLI) Ron Yakimow had every lawful right to be on that highway that day, correct?
MICKELSON: Objection; form.
Q. (BY MR. PAOLI) Didn’t he?
A. Yes, and so did I.
Q. And he had every lawful right to be doing what he was doing, put on his blinker and making a left-hand turn; isn’t that right?
Through investigation and depositions, Paoli Law Firm was able to clearly establish that David Davis routinely sped while operating a commercial motor vehicle. It was uncovered that David Davis’ prior driving violations and crashes should have subjected him to termination pursuant to Crapo, LTD’s policies well before this crash occurred. However, Crapo, LTD failed to reprimand David Davis or provide him with any additional specific training. After questioning by David Paoli, Crapo, LTD admitted that it could have done better in the areas of training, monitoring drivers, and retaining logbooks.
Crapo LTD had the specific equipment and software to monitor its drivers’ speeds, but failed to do so. Specifically, Crapo, LTD failed to monitor Davis even though he had two previous crashes while employed at Crapo, LTD. With further deposition testimony, Crapo, LTD had to admit Davis falsified his logbooks, his logs revealed he was a chronic speeder and he should have been terminated.
Crapo, LTD withheld important documents from discovery – documents Ron Yakimow was entitled to discover. As a result, Paoli Law firm filed a Motion to Compel with the Court requesting that the Court compel the production of the withheld documents. Ultimately, pursuant to Paoli Law Firm’s court filings, the Court ordered many important documents be produced by Crapo, LTD – documents Crapo, LTD preferred that Ron Yakimow and Paoli Law Firm never saw.
Crapo and Davis also spoliated important evidence including video of the crash scene. Similarly, Crapo, LTD and David Davis claimed that they were no longer in possession of any of David Davis’ logbooks. Paoli Law Firm prepared a spoliation sanction motion against Crapo, LTD and in turn, Crapo, LTD amazingly found the logbook sheets and produced them. The logbooks showed clear falsifications for not only the date of the wreck, but routine falsifications in all of Davis’ logbooks produced. Crapo, LTD admitted that the logbooks showed clear falsifications.
Two settlement conferences were conducted. At the first settlement conference, Crapo, LTD made a significant offer, but Paoli Law Firm recognized that it was not enough to fairly compensate Ron for his damages. Paoli Law Firm refused to resolve Ron’s case for the amount Crapo, LTD proposed and proceeded with trial preparation. Following additional depositions of Crapo officials, Crapo, LTD and its insurers asked for a second mediation. The Yakimows agreed to a second mediation and continued preparing for trial. In lieu of the case being heard and decided by a trial jury, Crapo, LTD made a significant offer and David Paoli was able to achieve a multi-million dollar settlement for Ron and Tina Yakimow.
Larson v. FedEx Ground Package System, et al.
This case arises from the horribly tragic double fatality collision caused by FedEx Ground Package System, Inc. (“FedEx Ground”) resulting in the death of two young men. The wreck occurred on Interstate 90 East at mile marker 21 on December 27, 2013 at approximately 10:30 p.m. near De Borgia in Mineral County, Montana. David Paoli of Paoli Law Firm, P.C. and co-counsel Lance Jasper represented the estate and the family of 28 year-old Eric Larson, who eventually succumbed to his injuries caused by the crash.
The driver of the FedEx Ground rig, Kevin McGhee, was driving on behalf of GNB Trucking, a Russian owned and operated company out of Salt Lake City, Utah. GNB provides services solely to FedEx Ground under its fraudulent independent contractor model wherein contractors own the semi-tractor and operate under FedEx Ground’s DOT operating authority pulling FedEx Ground trailers.
Eric was traveling from Coeur D’ Alene, Idaho to return to his home in Missoula after spending Christmas with his family. As he was driving on Interstate 90 near De Borgia, he stopped to render aid to a couple who had slid off the road and into the median. Eric, acting as a Good Samaritan, parked his truck safely off the road and got out to make sure he couple was okay. After ensuring the distressed motorists were not injured and were safe, he gave the woman his cell phone so she was able to report their non-injury slide-off.
Road conditions were icy, it was dark out, and the temperature was below freezing. Despite this, McGhee, who was operating a FedEx Ground semi-tractor hauling two fully loaded trailers in excess of the posted 65 mph speed limit, full throttle, and with his engine brake (“Jake Brake”) on as he approached the location of Eric’s truck and the three individuals standing off the road in the median. McGhee’s co-driver in the FedEx rig, Bambi Fowler, was in the sleeper birth with her dog.
As McGhee recklessly sped down I-90, he recognized warning lights from Eric’s pickup truck ahead. He released the accelerator, activating the Jake Brake, which is unsafe and forbidden in slippery conditions. He then reaccelerated, presumably to “pass right through” the emergency situation in the median ahead. He lost control of his semi tractor-trailer combination and jack-knifed, crashing into Eric’s pickup, completely demolishing it. McGhee ran down both men who were running for their lives. McGhee came to rest with both young men under the FedEx trailers. In his deposition, McGhee admitted that it was reckless to reaccelerate after he recognized the situation ahead. He also admitted that during the crash sequence he purposefully maneuvered his vehicle by steering towards Eric’s pickup truck, expecting there to be people in or around the pickup truck. After the collision, McGhee never got out of his tractor – instead of assisting the surving woman in rendering aid to the young men who were alive but trapped under the FedEx Ground trailers, he sat in his tractor, called his employer and worked on completing his false log books.
FedEx Ground repeatedly claimed this was an “unforseen black ice accident.” However, in depositions, it was admitted by FedEx representatives that ice is foreseeable in the wintertime, at night, in the mountains of Montana.
Hard fought discovery required by FedEx’s abusive discovery hindering techniques revelaed many, many facts damaging to all Defendants. McGhee admitted he was tired and comtemplated taking a nap right before this crash, but was pushing to get more miles so he could have “a better month” monetarily. FedEx also faced a serious of serious spoliation motions. Among the several documents FedEx and GNB destroyed prior to or during litigation were a great majority of McGhee’s log books (months of them) and almost all of his co-driver’s log books. However, the minimal amount of McGhee’s log books that were produced revealed multiple and repeated hours-of-service violations and false logs, which McGhee admitted to in his deposition.
Eric’s family settled the traumatizing case.
$27 MILLION JUDGMENT; $17 MILLION VERDICT
Kelly Logging v. First Interstate Bank, 4th Jud. Dist. Cause No. DV-12-928 . JURY VERDICT: $286,550 for wrongful set off/breach of contract, $16,760,000 punitive damages, attorney fees.
Missoula: On August 14, 2014, a Missoula jury awarded Kelly Logging $17 million in punitive and compensatory damages against First Interstate Bank. The case was Kelly Logging’s response to First Interstate Bank’s illegal 2009 “setoff” of $762,000 in the family business’s checking account. The bank used that money to pay off one of Kelly Logging’s loans with the bank. The loan was current, not due, and had not matured when the bank took the checking account money to pay off the loan.
LARGEST FELA VERDICT IN MONTANA HISTORY—$4.32 MILLION
Michael Schnittgen v. BNSF Ry. Co. , 8th Jud. Dist. Cause No. ADV-13-168. VERDICT: $4.32 Million. Federal Employers’ Liability Act (FELA)
Great Falls: On October 21, 2014, a Great Falls jury awarded our client $4.32 million for physical injuries and post-traumatic stress disorder he suffered in a train wreck southeast of Great Falls in July of 2011. A track maintenance worker who was piloting a non-BNSF maintenance train forgot to close the south siding switch at Gerber after parking the train there. The maintenance worker then drove into Great Falls and improperly reported to the dispatcher that he had closed the switch before leaving Gerber, when had not done so and no longer had the switch under observation as the General Code of Operating Rules required. BNSF initially cleared our client and his engineer of any fault in causing the wreck. Then, when our client sued for fair compensation for its injuries, BNSF changed tactics and blamed our client and the locomotive engineer for not anticipating that maintenance workers in front of them would violate the controlling rules.
We alleged this defense was legally prohibited by the FELA because an applicable FRA regulation required BNSF to adopt the operating rule that would have prevented this wreck, and provided that any violation of that operating rule would be a violation of the FRA regulation. Generally, the FELA provides that the railroad employer’s violation of FRA regulations prevents the railroad from blaming the employee for any ensuing injury. Judge Pinski agreed and struck BNSF’s contributory negligence defense. Then he ruled that BNSF’s improper assertion of that defense violated a rule of civil procedure that prohibits frivolous claims and defenses. The case went to trial with BNSF’s negligence already established. The only remaining questions for the jury were whether the wreck caused any physical or mental injury to our client and if so, the amount of his damages.
HIGH PROFILE CRIMINAL TRIAL
State v. Jordan Todd Johnson , 4th Jud. Dist. Cause No. DC-12-352. VERDICT: INNOCENT.
Missoula: On March 2, 2013, a Missoula jury unanimously found our client Jordan Johnson INNOCENT of the single criminal charge against him. The jury deliberated less than two hours following a two week trial.
ONGOING REPRESENTATION OF MONTANA AGAINST BIG TOBACCO
State v. Philip Morris, Inc. , Mont. 1st Jud. Dist. Cause No. BDV -1997-306. CONSENT DECREE: The cigarette manufacturers who have joined the 1998 “Master Settlement Agreement” (“MSA”) stipulated to the entry of a consent decree in which they agree to stop disputing whether the State of Montana “diligently enforced” the provisions of several Montana statutes relating to the activities of cigarette manufacturers who did not enter into the MSA. We represented the State of Montana in this case.
Helena: In June of 2012, Helena District Judge Sherlock entered a stipulated Consent Decree establishing that Montana “diligently enforced” the provisions of several Montana statutes. The cigarette makers who joined the MSA had previously contended Montana had not diligently enforced these statutes in calendar year 2003 and that failing to do so meant Montana should lose some or all of its subsequent annual payments under the MSA. The cigarette makers said this claim had to be decided in an expensive and unwieldy arbitration involving every other state that signed the MSA in 1998. Initially, the District Court in Helena agreed with the cigarette companies but, on appeal, we persuaded the Montana Supreme Court to reverse the district court decision and rule in 2009 that disputes about whether Montana “diligently enforced” these Montana statutes must proceed in the Montana court system. Then we helped to defend the Montana Supreme Court decision against the cigarette companies’ attempt to appeal it to the United States Supreme Court.
After discovery, showing the steps Montana had taken to enforce these statutes, the cigarette companies agreed to enter into the Consent Decree and stop disputing whether Montana “diligently enforced” these statutes in 2003.
David Paoli represents the State of Montana against big tobacco companies.
Several years ago the States sued the four largest cigarette manufacturers. The States generally argued that the cigarette manufacturers had defrauded the public and consequently the States endured enormous public health costs they would not otherwise have incurred.
A Master Settlement Agreement (MSA) was developed as a result of the litigation. The MSA and the States achieved several important goals, briefly summarized as (1) the settling manufacturers’ agreement to make very large monetary payments to the settling states over a period of several years, (2) the settling manufacturers’ agreement to stop marketing practices directed at kids, and (3) the settling manufacturers’ agreement to dismantle the “Center for Tobacco Research” and the “Tobacco Institute,” industry-funded propaganda operations that had taken the leading role in disseminating fraudulent information about the health risks posed by cigarettes.
This litigation is very significant for the State of Montana and its taxpayers because the payments Montana receives each year from cigarette manufacturers are used for many smoking prevention programs as well as the general fund.
REPRESENTATION OF MONTANA CITIZENS AGAINST ON-LINE TRAVEL COMPANIES
Montana Department of Revenue v. Priceline.com, et al. Cause No. ADV-2010-1056
The State of Montana Department of Revenue’s claim arises from online travel companies’ failure to pay the full amounts of state lodging, state sales taxes and state car rental taxes owed to the State of Montana. Online travel company defendants include Priceline.com, Expedia, Orbitz, and Travelocity. A complaint was filed by the State of Montana Department of Revenue on November 8, 2010.
The District Court ruled that the Lodging Facility Use Tax nor the Sales Tax apply to OTC fees. We appealed this ruling.
The Montana Supreme Court affirmed the District Court’s ruling that the Lodging Facility Use Tax does not apply to OTC fees, but reversed the District Court’s ruling that the Sales Tax does not apply to OTC fees. The Supreme Court’s ruling was based on the plain language of the Lodging Facility Use Tax, that the online travel companies are not “owners” or “operators” and therefore, not required to collect and remit the lodging tax on their fees. The Court rejected the online travel companies’ argument that the damages should be prospective, but limited the online travel companies’ liability for the taxes from the date the Complaint was filed, November 8, 2010 because, from that point forward, the online travel companies were officially on notice that the Department sought to collect tax on OTC fees.
On August 28, 2015, the Supreme Court remitted the case back to Judge Seeley in the First Judicial District Court for consideration of the damages claims.
The case settled and millions of dollars of unpaid taxes were recovered for the people of the State of Montana. The On-Line Travel Companies will now be required to pay these taxes into the future.
Twohig v. Dykeman , Mont. 4 th Jud. Dist. Cause No. DV-12-827. ARBITRATION AWARD AND CONFIDENTIAL SETTLEMENT.
Missoula: Our clients bought what they thought was their dream home in an upscale neighborhood. After moving in, they found the framing for the master shower was completely rotted out. The extensive tile work throughout the house began falling apart. The carpet throughout the house was heavily contaminated with pet urine. The home contained several building code violations. The in-ground pool continually leaked water.
In the buy-sell agreement, the parties had agreed to resolve any disputes through arbitration process rather than in the court system. Paoli Law Firm, P.C. represented the new homeowners and tried the case before an arbitrator in May of 2012. After a one-week hearing, the arbitrator ruled that the sellers had concealed several material facts from our clients the buyers. The sellers had used a combination of subcontractors and their own efforts to construct the home. However, neither was particularly trained or had much experience in construction. When the home inspection identified a leak in the master shower, the sellers minimized the issue and failed to disclose material facts about its construction. They also had concealed a previous lawsuit filed against them for poor construction. The arbitrator found that the sellers had tried to conceal the previous lawsuit from the arbitrator as well.
The arbitrator awarded our clients compensatory damages to repair the home, consumer protection damages against the sellers for committing unfair trade practices, and attorneys’ fees. The case settled for a confidential amount following the arbitrator’s decision.
ONE HORRIBLE, TRAGIC TRACTOR-TRAILER CRASH, TWO CASES
Case #1: Tanner Parrick v. FedEx Ground Package System, Inc., et al. (CV 09-95-M-DWM-JCL)
David Paoli represented the family of Jerry Parrick, who was senselessly and tragically killed by FedEx Ground Package System, Inc. (FedEx Ground) on Interstate 90 west in Mineral County, Montana while Jerry was working as a volunteer firefighter protecting a crash scene on December 17, 2008. On behalf of our clients, claims were made against FedEx Ground for negligent hiring, negligent retention, supervision, and negligent operation.
FedEx Ground driver Sergey Buslayev was recklessly operating a FedEx semi-tractor hauling two trailers. FedEx even admitted he was negligent in causing the collision. The FedEx tractor-trailer combination was operating at a speed must too fast for the winter road conditions and failed to yield to Jerry’s emergency vehicle. Through its investigation, Paoli Law Firm, P.C. developed facts showing FedEx Ground’s lack of care and failure to follow best practices and its own policies in hiring and retaining Buslayev. Paoli Law Firm, P.C. discovered that Buslayev had numerous prior driving violations on his driving record which made him ineligible and unqualified to drive a commercial motor vehicle. FedEx’s records indicated that it knew Buslayev was an unqualified driver, yet it still allowed him to get behind the wheel of the semi tractor-trailer combination and drive across the country. Because it was FedEx Ground’s “peak” season, just before Christmas, FedEx put its bottom line above the public’s safety.
During the course of litigation, FedEx Ground and its co-defendants refused to produce certain information and documents. Paoli Law Firm, P.C. fought FedEx every step of the way and demanded the information and documents our clients were entitled to discover. After Paoli Law Firm, P.C. briefed the issue in Federal Court, we received an Order from the Court requiring FedEx Ground and its co-defendants to produce the materials. Despite the Federal Court’s Order to produce documents, FedEx and its co-defendants continued to withhold the documents and information and produced some information, but well past the Court’s imposed deadline. Ultimately the Federal Court imposed sanctions against FedEx Ground and its co-defendants for violating its Order. As a result of Paoli Law Firm, P.C. efforts, FedEx was sanctioned for its abusive discovery practices by the Court ordering FedEx could not rebut or contradict certain evidence presented by our client and our client was also granted several adverse inference instructions against FedEx Ground.
During the course of litigation, Paoli Law Firm, P.C. also discovered that in amending its Answer to the Complaint, FedEx Ground made multiple improper amendments to its answer in violation of Rule 15 regarding the employee versus independent contractor status of Buslayev. FedEx made these improper amendments without requesting permission from the Court, as required, to do so or informing anyone of these amendments. FedEx previously admitted Buslayev was an employee of FedEx. In its improper amendments, FedEx changed its admissions, stating Buslayev was an independent contractor. Paoli Law Firm, P.C. discovered the improper violations of Rule 15 made by FedEx. Ultimately, this matter was heard in Federal Court and FedEx, caught in its attempted cover-up, admitted Buslayev was a statutory employee of FedEx Ground rather than an independent contractor.
Then, just five weeks prior to trial, FedEx and its co-defendants obtained new counsel going into trial.
Ultimately, just prior to trial, a seven-figure settlement of the civil case was achieved. After the civil case concluded, Paoli assisted in prosecuting the criminal case against FedEx Ground employee Buslayev. (see below)
Case #2: State of Montana v. Sergey Buslayev , Mont. 4th Jud. Dist. Cause No. DC-2010-11. JUDGMENT: Defendant convicted of Negligent Homicide and Negligent Endangerment, and sentenced to 20-year term at Montana State Prison with 10 years suspended on conditions.
Superior: In November of 2011, District Judge Deschamps sentenced contract truck driver Sergey Buslayev to a 20-year prison term, with 10 years suspended on conditions, for his role in negligently causing the death of volunteer firefighter Jerry Parrick. Parrick was parked in his truck on the shoulder of I-90, using his flashing emergency lights to warn traffic of another accident ahead. Buslayev was driving a tandem trailer rig under contract for FedEx Ground Package System, Inc. Buslayev lost control of the tandem rig and crashed into Parrick’s truck, killing him. David Paoli led our firm’s representation of the family in their civil lawsuit against FedEx Ground Package System and its two contract Russian drivers. He negotiated a settlement for the family and then, after the settlement, volunteered to help with the criminal prosecution of Buslayev. The State of Montana charged Buslayev with Negligent Homicide and Negligent Endangerment. David and Mineral County Attorney Marcia Boris tried the criminal case to a jury in June of 2011. The prosecution’s case emphasized Buslayev’s excessive speed, failure to yield to emergency personnel, inadequate maintenance of the vehicles, improper braking, several violations of Federal Motor Carrier Safety Regulations, and fatigue. The jury found Buslayev guilty of Negligent Homicide and Negligent Endangerment. After a period of pre-sentence investigation, Judge Deschamps sentenced Buslayev to 20 years at Montana State Prison on the Negligent Homicide count, with 10 years suspended on conditions. The judge also sentenced Buslayev to a 6-month sentence on the Negligent Endangerment count, to run concurrently with the prison term.
WRONGFUL DEATH RESULTING FROM SEMI-TRUCK CRASH
Plaintiff vs. Metromax Freight Carriers and Juan Vargas-Alaniz
Our client was appointed as the personal representative of his mother’s estate. His mother and sister were traveling on Interstate 90 near Lookout Pass when his sister lost control of her car on black ice. Their car came to a stop on the shoulder of Interstate 90 facing oncoming traffic. At the same time the semi-tractor trailer driven by Juan Vargas-Alaniz and owned by Metromax Freight Carriers lost control and crashed into the car driven by our client’s sister. Their mother suffered injuries that later resulted in her death. Juan Vargas-Alaniz was cited for exceeding hours of service, a violation of Montana Statute and the Federal Motor Carrier Safety Regulations (FMCSR). We recovered a significant settlement on his behalf.
WRONGFUL DEATH AND INSURANCE BAD FAITH
Hardy and Modroo vs. Nationwide Mutual Fire Insurance Co., et al
David Paoli represented the father of an adult woman who lost her life in a tragic automobile accident on Interstate 90 in Mineral County. The driver of the vehicle she was riding in lost control of the car on a curve west of St. Regis, Montana.
Nationwide Insurance failed to timely pay the entirety of the policies that should have been rightfully paid as a result of the woman’s death. A significant settlement was achieved.
Nationwide Mutual Fire Insurance Company located in Ohio failed to timely pay the entirety of the policies that should have rightfully been paid as a result of the woman’s death. The other two Defendant insurers were located in Des Moines, Iowa and were sued because they, acting as agents of Nationwide Mutual, handled the underwriting, processing and claims for the Farmowners Policy. They began handling these matters in 1999 and began using different underwriting practices, different policy interpretations and different policy language than had been used by Nationwide Mutual in the first eight years of the Modroo/Hardy family policies.
In September 2004, the District Court determined that the Farmowners Policy designated the Named Insured as a partnership and thus, ruled denying coverage under the underinsured (UIM) endorsement and the medical (“med-pay”) endorsement. We appealed the matter for our client, as did the mother’s attorney. In April 2006, the District Court ordered summary judgment denying medical payments coverage.
In August 2008, the Montana Supreme Court reversed the District Court’s decision concluding that the policy designated the mother and father as individuals and that their daughter who died in the horrible and tragic wreck qualified as an “insured” based on her relationship as a “family member.” On appeal, the Supreme Court reversed the District Court’s September 2004 Order granting summary judgment to Nationwide and denying summary judgment to plaintiffs regarding coverage under the Farmowners policy. The Supreme Court further reversed the District Court’s April 2006 Order denying summary judgment on medical payments coverage.
The matter was returned to District Court and Judgment was entered in Missoula County District Court awarding the deceased’s parents survivorship damages, pre-judgment interest, wrongful death damages, and negligent infliction of emotional distress damages.
PERMANENT INJURIES AND BRAIN DAMAGE RESULTING FROM BOXING MATCH
Our client suffered brain damage following a boxing match at the Wilma in March of 2003. The Wilma Defendants, in conjunction with Defendants Club Boxing, Inc. and Robert J. LeCoure, organized, sponsored, promoted, and held the boxing match at the Wilma.
At the time of the fight, no ambulance was present at the Wilma and no licensed physician was present ringside, only a chiropractor was present who was involved in the “festivities.” During the course of the boxing match, our client received blows to the head which required immediate medical attention and transportation by ambulance to the emergency room. Our client’s treatment by a qualified medical professional and transport to the hospital was delayed and consequently his injuries were exacerbated and resulted in permanent injuries, including brain damage.
David Paoli brought into the case the legendary Angelo Dundee as our boxing safety expert. Muhammad Ali’s longtime trainer and friend was instrumental in achieving justice for our client. The wealth of knowledge and expert opinions Mr. Dundee provided were undisputable. Angelo was truly the ‘best of the best’ expert in this case. His stories of Ali, Joe Frazier and others, as well as the boxing industry were spellbinding. Our client was well-served by the trainer of the “Greatest of All Time,” Angelo Dundee.
Significant confidential settlements were reached on behalf of our client.
Plaintiff v. Defendant
Personal Injury Resulting from Automobile Accident
Our client was the passenger in a vehicle driven by Defendant. Defendant fell asleep at the wheel and consequently, the vehicle rolled approximately four times. Our client suffered permanent impairment, including loss of executive functioning capacities.
DEVELOPMENTALLY DISABLED INMATE SHOT WTH PEPPERBALL GUN
Inmate v. Missoula County
A developmentally disabled individual was arrested in July 2006 for the misdemeanor charge of disorderly conduct. While incarcerated at the Missoula County Detention Facility our client was shot six times with a pepperball gun. Officers claim they failed to recognize our client’s disability. Our client was strapped in a restraint chair for 44 minutes before officers decontaminated our client from the effects of the pepper powder.
Our client’s Constitutional rights were violated and the incident violated Montana law. Through investigation, attorneys at Paoli Law Firm, P.C. also discovered multiple violations of the Missoula County Detention Facilities policies and procedures. Our client is leading a productive, work-filled life and remains a friend of the firm.
Walter Peschel v. City of Missoula , et al. U.S. D.Mont. Cause No. CV-08-79-M-JCL.
SETTLEMENT. This was a civil-rights case arising out of the same facts as the criminal case against Dr. Peschel discussed below.
Missoula: On August 18, 2007, a neighbor asked Dr. Peschel to help a suicidal woman. Dr. Peschel responded and learned the woman had overdosed on prescription drugs. He asked a witness to call 9-1-1. The witness told 9-1-1 dispatchers that Dr. Peschel was with the woman and was a doctor, and asked the police to respond discreetly – no lights or sirens. Before the police arrived Dr. Peschel had persuaded the woman to put the gun down. The woman was drifting in and out of consciousness. Dr. Peschel asked a bystander to locate the prescription drugs the woman had taken so she could be promptly treated. He also made arrangements to block the woman’s car so she could not leave the area and put others in danger. The police responded to the scene with their lights on, guns drawn, and ordering Dr. Peschel to get away from the woman. Dr. Peschel tried to get police to come close enough so he could explain why he would not leave her side – because 1) she said she would shoot herself, and 2) if he could keep her calm she would go into a drug induced coma, the gun could be removed and she could be taken to the hospital. When the woman eventually went into the drug induced coma, Dr. Peschel left her side. When he did so, a police officer tackled him from behind. Then the police arrested him and charged him with obstruction of justice. Dr. Peschel was hospitalized for three days.
We defended Dr. Peschel in the criminal case. The jury found him not guilty. Then we proceeded with a civil case against the city for the violation of Dr. Peschel’s constitutional rights.
One of the police cars at the incident scene had a dashboard camera that recorded the whole incident. Several police officers watched that video recording in the days following the incident. Then the video recording disappeared. Police claimed the disappearance of the video was an accident. On behalf of Dr. Peschel, we argued that the city should be penalized for the destruction of the video recording. The federal court agreed and decided the penalty for the destruction of the video recording would be a ruling as a matter of law that the police had used excessive force when they arrested Dr. Peschel.
The case settled shortly after the entry of the court’s order finding excessive force as a matter of law.
VETERAN – VA MEDICAL MALPRACTICE — $1,192,730
James and Clarice Lamb v. United States of America , U.S. D.Mont. Cause No. CV 06-151-M-DWM. JUDGMENT: $622,730 (total damages proven in the amount of $1,192,730 were reduced to $622,730 to comply with Utah’s damage cap on non-economic damages).
Missoula: On April 4, 2008, Jim Lamb, a Navy Veteran, and his wife prevailed in their medical malpractice lawsuit against the Veteran’s Hospital in Salt Lake City, where Jim underwent a series of failed operations that left him permanently disabled. Jim went to the VA hospital in Salt Lake City for a routine laparoscopic hernia surgery, expecting to be discharged home after a couple of days. During the surgery, doctors severed his hepatic artery and injured his spleen. Jim nearly died because of complications from the hernia surgery and the subsequent five surgeries he underwent. He was eventually transferred to the Montana VA Hospital at his request and was not discharged home until almost four months after his initial surgery. Jim has permanent injuries, including disfigurement; risk of recurrent small bowel obstruction; an inoperable hernia; and severe abdominal pain. He is no longer able to do many of the things that he once enjoyed, including hunting, fishing, gardening and being actively involved in his children and grandchildren’s lives. Judge Molloy awarded Jim and his wife Clarice damages in the total amount of $1,192,730. Because Utah law limits non-economic damages to $430,000, Jim and Clarice were only able to recover that amount plus their economic losses in the amount of $192,730.
CONSUMER/ELDER PROTECTION – MULTIPLE CONFIDENTIAL SEVEN-FIGURE SETTLEMENTS
Gunlock v. Michael Ellenburg, Penn Treaty/Network America, American National Insurance Company/Legacy Marketing Group, AMA, Pioneer Life Insurance Company, et al.
The Gunlocks hoped to live their Golden Years in the Mission Mountain Valley. That is, until they met Michael Ellenburg and the companies he represented. Ellenburg gained the Gunlocks trust and then took their life savings. Following many depositions all over the country – California, Texas, Pennsylvania and points in between, we developed the evidence necessary to prove that not only did Ellenburg steal the Gunlocks hard-earned life savings, but he did so while representing these institutional companies and their investment “products.” It also became clear the companies were aware of Ellenburg’s tactics and his crimes. The final deposition was taken of Michael Ellenburg at the Montana State Prison where he was incarcerated for the crimes we exposed. Fortunately, we were able to settle the Gunlocks claims for millions from the companies who gave Gunlock license to prey upon these senior citizens.
LARGEST PAIN AND SUFFERING VERDICT IN MONTANA – $655,000
Robert Wells v. BNSF , Mont. 13th Jud. Dist. Cause No. CV-05-0779. JURY VERDICT: $761,426: Federal Employers’ Liability Act (FELA) ($111,426 past wage losses; $650,000 pain and suffering).
On July 22, 2002, Bob Wells suffered a severe and traumatic injury when a welding unit fell from its compartment and crushed his lower right leg. Both the welding unit and the sliding tool tray on which it sat fell out of the compartment in Wells’ service truck as a result of BNSF personnel removing the metal stop which prevented the unit and tray from such an outcome. Following Wells’ extensive surgeries and rehabilitation, he obtained a conductor position with BNSF where he currently works today.
Billings: He was awarded over $700,000 on August, 30, 2007 in a 9-3 decision against BNSF. The case, brought pursuant to FELA, was heard over four days with attorney David Paoli calling four expert witnesses to testify on behalf of Mr. Wells. Although BNSF contested damages and claimed contributory negligence, the railroad company admitted liability one week before the trial. Beside this late admission, the jury also took into consideration the $225,000 BNSF had paid in past medical bills. Fortunately, all twelve jurors disagreed with BNSF’s claim that Mr. Wells was somehow negligent. And, although three jurors dissented in the final decision, only one juror wanted to award less for pain and suffering damages while the other two jurors wanted to award more.
Dan Dean v. UPS , U.S. D.Mont. Cause No. CV-05-50-M-DWM. ARBITRATION AWARD: $400,000.
Missoula: This wrongful discharge case was in arbitration from Tuesday, November 14, 2006, through Thursday, November 16, 2006. Post arbitration briefs were submitted on February 5, 2007 and Tuesday, February 13, 2007. Arbitrator John Crist ruled in Plaintiff Dan Dean’s favor. Dan Dean was awarded over $400,000, the fourth largest award in a discharge case since the Wrongful Discharge in Employment Act (WDEA) was enacted in Montana.
INSURANCE BAD FAITH
Ballich v. Metropolitan Property & Casualty Ins. (MetLife) , U.S. D.Mont. Cause No. CV-01-85-BLG. VERDICT: $280,000: insurance bad faith ($250,000 punitive damages; $30,000 compensatory damages).
Billings: A federal court jury unanimously awarded Mike Ballich $30,000 in compensatory damages and $250,000 in punitive damages after finding that Metropolitan Property & Casualty Insurance violated the Unfair Trade Practices Act and violated the ethical standard of good faith and fair dealing.
On July 16, 1998, Mike Ballich was injured in a motor vehicle accident in which the driver of the colliding vehicle pled guilty to DUI. Mike suffered from chest and ankle injuries, nerve damage, a fractured rib, and aggravation of asthma and allergies. Throughout the entire claims process Metropolitan questioned Mike’s injuries as a result of the accident. Consequently, Mike suffered not only physical anguish but emotional anguish as well. His recovery process was more drawn out and painful than it should have been. Metropolitan was accused of refusing to properly evaluate and pay Mike’s claim without a reasonable investigation. Fortunately, the company was held accountable.
Three Cases, One Defendant. Paoli Law Firm, P.C. is also very proud to have represented three southwest Montana families over the course of many years against James S. Bischoff. Unfortunately, each of these cases was extremely tragic as a result of Bischoff’s gross medical negligence.
Each case was settled for the firm’s clients. Bischoff’s first victim was a 44 year old mother of three boys. Bischoff failed to diagnose the very clear mass in her left lung from an X-ray that he ordered to be taken. Sadly, our client passed away as a result of Bischoff’s failure to diagnose her early-stage lung cancer. The firm challenged Montana’s non-economic damages cap ($250,000; §25-9-411) in medical malpractice cases and received a ruling from Judge Davis expressing his intent to declare the cap unconstitutional if a verdict was obtained exceeding it.
The second case involved the tragic death of another patient treated by Bischoff. This young man was racked with intense chronic pain as a result of an industrial accident in which he was involved. The case was settled against Bischoff after our young client died while in the Madison Valley Hospital pursuant to an administration of pain drugs Bischoff ordered for him. We alleged that Bischoff excessively over-prescribed pain medications in varying dosages and types of pain medication. Again, we secured a settlement for the surviving family of this young man.
The third case against Bischoff may have been the most heart-wrenching because it involved an 8 year old girl. Bischoff failed to diagnose her cardiological problem and mistakenly diagnosed a seizure disorder. Sadly, this young child died as a result of Bischoff’s medical negligence as he failed to diagnose and then treat the girl’s condition. Up until this case, the Bischoff’s attorney would not allow him to be deposed; doing whatever it took to keep Bischoff from taking the oath and testifying. However, Mr. Paoli and the girl’s father agreed that the case would not be settled, if at all, until after Bischoff had taken an oath to tell the truth and sat for his deposition.
Bischoff was arrested during the pending litigation on the charge that he hastened the death of an elderly patient he was caring for at the Madison Valley Hospital. While on probation for these charges, Bischoff traveled from his home in Ennis, Montana to Rexburg, Idaho and robbed a bank. Bischoff was eventually arrested and charged for the crime. It was in Rexburg, in the Madison County Idaho Courthouse, that David Paoli was finally able to take Bischoff’s deposition and start the steps toward settling the case.
The case settled shortly after Plaintiff’s motion to declare the non-economic damages cap unconstitutional was heard by Judge Simonton.
Plaintiff v. Thermage, Inc.
Permanent Facial Scarring resulting from cosmetic surgery
David Paoli represented an individual who underwent a facial skin-tightening ThermaCool™ -Thermage procedure. The ThermaCool™ system was designed, manufactured and distributed by Thermage, which represented that it will tighten and contour both the skin and underlying tissue while the system applies cryogen cooling to protect the epidermis.
Following the procedure, our client suffered from third-degree burns, extreme swelling, horrible blistering, and extreme pain. Our client also suffered permanent facial scars and pigmentation damage. We recovered a significant settlement on her behalf.
Employees v. Smurfit-Stone and Vinings Industries
Adverse Reactions to Chemical Exposure
Sixteen employees of Smurfit-Stone reached settlement with Smurfit-Stone and Vinings Chemicals resulting from health and respiratory problems related to the company’s change from Calgon to Vinings chemicals used in its operations. During the time that Vinings supplied chemicals to the mill, employees of Smurfit began to develop severe skin rashes, sores, respiratory problems and other health conditions. Vinings chemicals were known by Smurfit-Stone to be toxic to humans but Defendants ignored the problem and told many employees that their problems were related to hygiene, pre-existing health problems, activities outside of the workplace, or their lifestyle. As employees conditions worsened, no action was taken by Defendants to eliminate the serious health threats presented by Vinings chemicals even though Defendants were aware of the health problems that had developed.