Wisconsin Business and Commercial Litigation

For the past three weeks, I was working with Jeff Fertl, another lawyer in my firm, on a products liability trial in Milwaukee County.  The plaintiff driver of a 1999 Jetta, driving on a straight, level, dry roadway in light traffic on a mostly sunny day, suddenly veered sharply to the right, leaving the highway.  The car struck the embankment, rolled 4 1/4 times, and ejected the plaintiff through the sunroof sometime during the second roll. 

A spine injury resulted in paraplegia, and she sued VW, among others, claiming that the buckle in the Jetta was negligently designed and unreasonably dangerous.  The design flaw, her experts argued, was that the buckle became inadvertently unlatched during the right steer maneuver (the sharp right turn) when her elbow contacted the button, rendering her unrestrained during the crash sequence. 

Jeff Fertl and I represented defendant VW in trial (by the time trial started, all other defendants had either settled or been dismissed).  Dan Rottier and Don Slavik of Habush, Habush, & Rottier, one of the state’s preeminent plaintiffs’ firms, represented the plaintiff.

One of the major issues was whether the plaintiff had been belted at the time of the accident.  At trial, an Ozaukee County Sheriff’s Deputy testified that, during his investigation at the scene of the accident, the plaintiff had told him she was not wearing her seatbelt.  Conversely, a passenger in a passing Yukon testified that he had observed the plaintiff wearing her seatbelt just before the accident occurred.  In addition, the plaintiff’s friends and family testified that “she always wore her belt.”  The defense called a human factors expert to discuss factors affecting observation, cognition, and recall, and to demonstrate the amount of time the eyewitness would have had to observe the belt. 

The trial lasted three full weeks before Judge William Brash, and the jury finally came back with a verdict late on Friday afternoon.  The jury, answering the damages question, found $18 million in damages (in closing, the plaintiff requested that the jury award about $27 million), including past and future medical expenses, past and future pain and suffing, and loss of earning capacity.  However, to the first question on the verdict, “Was the plaintiff wearing the available occupant restraint system at the beginning of the crash?,” the jury answered “No.”   In the end, the defense ended up winning on this factual issue, and the issues of product defect and negligence never came into play.

It was an exciting trial, if long, with some of the best lawyers I’ve ever seen in a courtroom, and it was rewarding to be part of the process.  Certainly, Dan Rottier is one of the most highly-regarded plaintiff’s lawyers in the state, and Jeff Fertl tried as good a case as I’ve ever seen.  Congratulations also to the men and women of Volkswagen, whose product has been vindicated.

Sorry for the sudden rash of non-postings.  I’ve been in trial for just over a week now, and it will continue until about March 26.  As a result, I’ve had no time to spend on preparing anything for you.  When it’s over, I’ll be back and writing again.

In a case arising out of Madison, the Court of Appeals decided that to qualify under the business records exception to the hearsay rule, a party must provide testimony of someone with personal knowledge of how the business records were prepared and used.  Palisades Collection v. Kalal puts Wisconsin in the minority, according to Dave Ziemer of the Wisconsin Law Journal:

Nationwide, there is a consensus among the federal courts of appeal that third party business records are admissible evidence under the hearsay exception in FRE 803(6).

Ziemer’s article about the case provides some interesting insights into the Wisconsin rule and its comparison with other jurisdictions, pointing out many that go exactly the opposite direction:

However, there is a plethora of federal cases holding that records created by a third party and integrated into another entity’s records is admissible as the record of the custodian entity, provided the custodian relied on the accuracy of the record. (U.S. v. Adefehinti, 510 F.3d 319 (D.C.Cir.2007); Air Land Forwarders, Inc. v. U.S., 12 F.3d 1338 (Fed.Cir.1999); U.S. v. Childs, 5 F.3d 1328 (9th Cir. 1993); U.S. v. Duncan, 919 F.2d 981 (5th Cir. 1990); Resolution Trust Corp. v. Eason, 17 F.3d 1126 (8th Cir. 1994).)

The Eighth Circuit reaffirmed this principle just last month in Brawner v. Allstate Indemnity Co., No. 08-3544 (8th Cir., Jan. 8, 2010).

In addition, on facts materially identical to those in the case at bar, Massachusetts highest court held that the records were admissible business records. (Beal Bank, SSB, v. Eurich, 831 N.E.2d 909 (Mass. 2005).)

Regardless, for now, those of you who intend to rely on the business records of another company to prove your case would be wise to come prepared with a witness who has personal knowledge of the creation and use of those records.

Witness photo courtesy Extraordinary Chambers in the Courts of Cambodia flickr photostream through this creative commons license.