Cook County Record

Friday, January 17, 2020

Judge again sinks Brunswick's bid to undo $25M deal with lawyer who used jury note to avoid loss at trial

By Jonathan Bilyk | Apr 11, 2018


A Chicago federal judge has again turned aside an attempt by boatmaker Brunswick to undo a $25 million personal injury settlement the company says was obtained through fraud, as a federal judge said the company has failed again to lay claim to a protected interest violated by a rival lawyer’s decision to allegedly withhold information about a jury note moments before a verdict would have delivered a win to Brunswick.

On April 10, U.S. District Judge Manish Shah dismissed with prejudice the counts brought under federal law by Brunswick against attorney Mark McNabola and fellow defendants, The McNabola Law Group P.C., Cook County and Cook County court clerk Tatiana Agee.

The decision, like others before it in the case and other related legal actions, centered on events that transpired rapidly during the waning minutes of jury deliberations on June 9, 2015, the final day of a trial over allegations brought against Brunswick by plantiffs Scott and Patricia Vandenberg.

Dan Webb | Winston & Strawn

The couple 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, suffering injuries that left him paralyzed from the neck down, according to court documents.

The Vandenbergs retained McNabola and his firm to represent them in their personal injury liability lawsuit over the incident.

The Vandenbergs settled with yacht charter operation RQM LLC in 2012 for $2.3 million, but proceeded to trial against Brunswick.

While the jury was deliberating, Brunswick offered the Vandenbergs $25 million to settle the case, and the offer was accepted, ending the case moments before the jury returned a verdict in favor of Brunswick.

Following the settlement and verdict announcement, however, the court later learned Agee had allegedly relayed the contents of a jury note to McNabola, in which the jury asked if it “could find fault with RQM without finding fault for Brunswick?”

According to Shah’s opinion, McNabola told Agree to “’hold off’ on doing anything because he was going to settle the case.”

During conversations that followed between McNabola and counsel for Brunswick, McNabola “did not mention the jury question,” Judge Shah wrote, even as he negotiated with a claims adjuster to land on a $25 million settlement.

“The claims adjuster had full authority to revoke the $25 million offer and would have done so had he been aware of the jury question, of McNabola’s knowledge of the jury question, or of his request that Agree hold off on a hearing so he could settle the case,” Judge Shah wrote.

About 25 minutes after Agee first called McNabola, McNabola then called the judge to advise her of the settlement “and during that conversation McNabola told her that neither he nor the defense was interested in the jury question or anything more to do with the trial,” Judge Shah wrote.

McNabola then called Brunswick’s lawyer to “advise him about the settlement,” Judge Shah wrote.

A minute after McNabola ended that call, Agee called Brunswick’s lawyer “and told him the jury had a question, but did not tell him what it was,” Shah wrote.

During a meeting in the judge’s chambers 10 minutes later, the judge “asked why it took so long for them to return after the jury presented its question.”

“One of Brunswick’s attorneys replied that they had come as soon as they learned of the question,” Shah wrote. “McNabola’s associate, who was present, said nothing.”

After learning of McNabola’s purported actions, Brunswick asked the court to toss out the settlement. A new judge on the case, Cook County Judge Daniel Lynch, cited “fraud” and declared the settlement “unenforceable” and entered the verdict in favor of Brunswick.

However, Lynch later recused himself without explanation, and the case was transferred to Judge James O’Hara, who reinstated the settlement in late 2016, declaring, 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.

Brunswick appealed O’Hara’s decision, but was turned aside by a state appellate court. The Illinois Supreme Court also declined to hear their appeal.

Brunswick also filed suit in federal court, asserting its rights were violated by the process.

In July 2017, Shah ruled against Brunswick, saying it could not lay legal claim to any property interest violated in the process. In its initial version of the federal complaint, Brunswick asserted its rights to a fair trial were violated. But Judge Shah last summer said the right to a fair trial “is not a property or liberty interest, but a mechanism to protect property or liberty.”

Brunswick amended its complaint shortly after, arguing “its protected interest is the jury verdict, denial of which led to a $25 million settlement and $1 million in litigation expenses.”

But Judge Shah said their pleadings still fell short of establishing the legal claim needed to continue with their lawsuit against McNabola, Agee and the county.

“Brunswick reasons that a jury verdict is a judgment, and a judgment is a protected property interest,” Judge Shah wrote.  “This is incorrect. A final judgment - one that is no longer subject to review or modification 0 is a property interest protectable by due process. But a jury verdict is not.”

And the judge again rejected Brunswick’s attempts to assert the case should be allowed to proceed in federal court, because its options in state court were “inadequate.”

“Brunswick pursued state-court post-trial relief from the time the misconduct occurred in June 2015, through March 2018, when its petition to the Illinois Supreme Court was denied,” Shah wrote. “Nothing in Brunswick’s complaint indicates that these proceedings were not meaningful or failed to give Brunswick an opportunity to be heard. At this point, Agee could no longer corrupt the process. The December 20 order (from Judge O’Hara) may have overturned Brunswick’s short-lived success, but that is a natural outcome of the litigation process and occurs any time a court’s decision is reconsidered or appealed.”

Shah dismissed Brunswick’s claims under state law without prejudice.

McNabola and his firm are represented by attorneys Edward W. Feldman, Mary Eileen Cunniff Wells and Alexandra Kay Block, of the firm of Miller Shakman & Beem LLP, of Chicago.

Agee is defended by the Cook County State’s Attorney’s Office and attorneys William C. Martin, of the Martin Law Group, and David R. Condron, of the firm of Conklin & Conklin LLC, each of Chicago.

Brunswick is represented by attorneys Dan K. Webb, Alexandra Jane Schaller, Matthew R. Carter and Patrick R. O’Meara, of the firm of Winston & Strawn LLP, of Chicago.

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Organizations in this Story

Cook CountyDan K. WebbMiller Shakman and Beem LLPMcNabola Law Group PCWinston and Strawn LLPIllinois Supreme CourtIllinois First District Appellate CourtU.S. District Court for the Northern District of IllinoisBrunswickConklin & Conklin

People in this Story

Daniel J. LynchManish Shah