A Chicago lawyer, already being sued by his ex-client - a man left paralyzed from a 2009 boating accident who claims the attorney’s use of jury note, improperly shared by a court clerk, cost him a $25 million settlement - has been hit with another lawsuit, this time from the yacht maker they had sued and who now allege the lawyer should also be made to pay for using the jury note to cost them a verdict from a jury poised to hand the company a courtroom win.
On Dec. 16, the Brunswick Corporation filed suit in Chicago federal court against attorney Mark McNabola and his law firm, The McNabola Law Group P.C., of Chicago.
The lawsuit also named as defendants Tatiana Agee, a court clerk working for the Cook County Circuit Clerk’s office, and Cook County.
The lawsuit centers on a $25 million settlement agreement McNabola had appeared to nail down with Brunswick on behalf of his client, Scot Vandenberg, on June 9, 2015, mere moments before the jury deliberating the case returned with a verdict in favor of Brunswick.
Vandenberg, of New Lenox, had hired McNabola to help him sue Lake Forest-based Brunswick, as well as yacht charter operation, RQM LLC, in 2010. A year prior, Vandenberg had been aboard a Hatteras yacht, made by Brunswick, which had been leased from RQM for a company event, when he fell from the rear top deck of the craft. His injuries paralyzed him from the neck down, according to published reports and court documents.
Vandenberg settled with RQM in 2012 for $2.365 million, but proceeded to trial against Brunswick.
The case was handed over to the jury on June 9, 2015, However, as they deliberated, Brunswick purportedly offered Vandenberg $25 million to settle the case. The plaintiffs accepted the deal, and the case was dismissed before the jury could return its verdict, which was to be in favor of Brunswick.
However, the court later learned that, as the jury deliberated, Agee, a court clerk, had allegedly relayed the contents of a crucial note from the jury to the judge, which appeared to indicate the jury’s reluctance to find against Brunswick. According to Brunswick’s new complaint, later proceedings would reveal Agree agreed to a request from McNabola to withhold that information from Brunswick, as he moved to secure a settlement, rather than risk losing the verdict.
Upon learning of Agee’s and McNabola’s alleged improper communication, Brunswick cried foul, and Cook County Judge Daniel J. Lynch, in January 2016, vacated the settlement, ruling Agee and McNabola had engaged in “fraud” and McNabola had violated the attorney’s code of professional responsibility by obtaining and not sharing the contents of the jury note with the opposing party before securing the settlement agreement.
In May, Lynch polled the original jury and entered the verdict in favor of Brunswick, cementing the loss of any possibility of obtaining any settlement.
Following that ruling, Vandenberg sued McNabola and Agee, asking the court to order them to pay him $25 million, plus the settlement funds from RQM, which he alleged his ex-lawyers have improperly kept from him. That case remains pending.
In Brunswick’s new complaint, the boat maker alleged the actions by McNabola and Agee on June 9, 2015, and later, also worked to undermine their legal rights and cost Brunswick large sums in attorney fees and other court costs to get to the bottom of what happened.
“Absent that misconduct, this case would have been over on June 9, 2015 after the jury indicated that it found for Brunswick,” Brunswick’s complaint asserted.
“All of the actions of Defendants, and their named conspirators, … including concealing the existence of a material jury question so that McNabola could effectuate a settlement for $25 million and then opposing Brunswick’s efforts to find out the truth about what occurred on June 9, 2015, were done jointly, with the intent of injuring Brunswick. These actions violated Brunswick’s constitutional rights, particularly, its right to due process of law,” the lawsuit said.
The lawsuit includes counts of denial of due process, fraud, conspiracy and negligence against McNabola and Agee. Cook County is named in the lawsuit as Agee’s employer, as Agee committed her alleged actions while working as a court clerk, and thus “under color of law,” making the county allegedly liable for her alleged deeds.
The complaint asks the court to order McNabola and the other defendants to pay the company compensatory damages, plus punitive damages and attorney’s fees.
Brunswick is represented by attorneys Dan K. Webb, Jared L. Hasten and Alexandra J. Schaller, of the firm of Winston & Strawn, of Chicago.