Editor's note: This article and accompanying headline have been revised to correct and clarify inaccuracies. 

A state appeals panel will let stand a Cook County judge’s decision to enforce a $25 million settlement deal between boatmaker Brunswick and a New Lenox man who claimed the company should be held accountable for an accident that left him paralyzed, even though a court clerk allegedly passed on information concerning jury deliberations to his lawyer, which the boatmaker has alleged gave him an edge in the talks moments before the jury was set to render a verdict in favor of the defendants.

On Nov. 27, a three-justice panel of the Illinois First District Appellate Court sided with plaintiffs Scot and Patricia Vandenberg in the dispute over the big money settlement, which has remained embroiled in controversy and disputed in the courts since days after it was entered in Cook County court two years ago.

“We emphasize that our determination does not mean we in any way condone inappropriate conduct by lawyers or court clerks, as avenues do exist to address violations,” the justices wrote in the opinion. “We determine only that the recourse Brunswick seeks in this appeal is not supported by the law.”

The opinion was authored by Justice Sheldon A. Harris, with justices Mary L. Mikva and John B. Simon concurring. 

The decision centered on events that transpired rapidly during the waning minutes of jury deliberations on June 9, 2015, the final day of the trial over Vandenberg’s allegations.

The Vandenbergs had filed suit in 2010, about a year after Scot Vandenberg had fallen from the rear top deck of a Hatteras yacht, made by Brunswick, sustaining injuries that left him paralyzed from the neck down, according to court documents.

The Vandenbergs retained attorney Mark McNabola and his firm, the McNabola Law Group, to represent them in their personal injury liability lawsuit over the incident, naming as defendants both Brunswick and yacht charter operation, RQM LLC.

The Vandendbergs settled with RQM in 2012 for $2.3 million, but went to trial against Brunswick.

While the jury was deliberating, Brunswick offered the Vandenbergs $25 million to settle the case. They accepted the settlement offer, and the case was dismissed before the jury could return its verdict.

However, while the jury had been deliberating, the court later learned court clerk Tatiana Agee had allegedly relayed the contents of a jury note to McNabola, allowing him insight into the state of the deliberations, which was preparing to find in Brunswick’s favor.

Upon learning of the alleged communication, Brunswick cried foul, and Cook County Judge Daniel Lynch vacated the settlement agreement in January 2016, “ruling it was unenforceable on the grounds of unilateral mistake and fraud perpetrated by (Agee and McNabola) and violations of the code of professional responsibility by" McNabola, the complaint said.

In May, the judge then polled the jury from the original trial, and entered the verdict in favor of Brunswick.

However, after Lynch recused himself without explanation, the case was later transferred to Judge James O’Hara, who in late 2016, reinstated the settlement. In his decision, the judge said, at the time the settlement deal was entered in court, Brunswick’s lawyers were or should have been aware of the contents of the jury’s note, and could have withdrawn their settlement offer, as the jury remained in deliberations.

The judge noted the settlement was entered at 4:50 p.m., and both sides were aware of the jury note by 4:40 p.m. – even though Agee had allegedly waited around 30 minutes after calling McNabola to share the content of the jury note with Brunswick’s lawyers.

“… The parties freely settled this case after full disclosure of all material information concerning the content and time of publishing the jury note,” O’Hara ruled. “At no point did [Brunswick], through counsels, object to or question the validity of the settlement after learning of the content of the jury question contained in the note or the time it had come out prior to the settlement’s entry into the record. Through this conduct, [Brunswick] manifested a consistent intention and willingness to agree and enter into the settlement and to its entry into the record and to the dismissal of the case pursuant to settlement.”

Brunswick appealed that decision, maintaining the decision by McNabola to negotiate at that point in the process, when Brunswick was not aware of the contents of the jury note, was fraud on his part, and should invalidate the settlement.

Appellate justices, however, sided with O’Hara, similarly finding Brunswick learned of the jury note at least 10 minutes before appearing in court to confirm the settlement before the judge, and yet waited days to object.

The justices declared McNabola’s alleged actions weren’t severe enough to allow the settlement to be vacated.

“… While violation of these rules may be relevant to the standard of care in a legal malpractice claim, the rules themselves do not establish a separate duty or cause of action,” the justices wrote. “As such, the rules of professional conduct cannot give rise to McNabola’s duty to speak, the violation of which served as the basis of Brunswick’s fraudulent concealment claim. Without establishing that duty, Brunswick cannot prove fraudulent concealment as a means to vacate the parties’ settlement agreement.”

Further, the justices said the settlement could not be vacated at this point, because, to do so, would give Brunswick an advantage in renegotiating with Vandenberg, or simply refusing to do so, as both sides now knew a jury could return a verdict in favor of the boatmaker.

“… We find that rescission of the settlement would do an injustice to plaintiffs (Vandenbergs), whom Judge Lynch found had ‘clean hands’ in the jury note matter and formed their intent to accept the settlement offer prior to Agee’s 3:52 p.m. call to McNabola,” the justices wrote. “In fact, had McNabola relayed the acceptance of Brunswick’s offer immediately after plaintiffs informed him of it at 3:40 p.m., the parties would have entered into a valid settlement prior to the court receiving the jury note at approximately 3:50 p.m., with no mistake as grounds for rescission.”

According to Cook County court records, Brunswick is represented in the action by attorneys with the firm of Winston & Strawn LLP, of Chicago.

The Vandenbergs are now represented by the firm of Power Rogers & Smith P.C., of Chicago.

In December 2016, Brunswick filed suit against McNabola, alleging his actions violated their rights to due process and cost them the chance at a fair trial and resolution to that trial, misleading them into agreeing to the settlement deal with the Vandenbergs. That case was initially dismissed by a federal judge, and a motion to dismiss an amended version of Brunswick's lawsuit is pending in Chicago federal court.

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