Both Wisconsin Court Rules and Court Orders govern the prosecution of lawsuits in Wisconsin and it is an attorney's job to know and abide by all governing deadlines. At times, attorneys fail to meet important deadlines and it can result in the client's loss of his or her right to pursue a lawsuit. If a lawyer neglects to timely file a lawsuit within the governing statute of limitations, it will be dismissed. If a lawyer fails to abide by court scheduling deadlines, a case may be dismissed.
To review a Complaint filed by Cabaniss Law on behalf of a client who alleges his attorney's failure to comply with court mandated scheduling requirements resulted in the dismissal of his meritorious action
Plaintiff, Steven Bovin, by his attorney John C. Cabaniss, for his complaint against defendants Wisconsin Lawyers Mutual Insurance Company, Phillips, Cymerman & Stein, SC, and Emily D. Davey, alleges as follows:
1. Plaintiff, Steven Bovin ("Bovin"), is an adult residing at 5326 S. Barland Avenue, Cudahy, Wisconsin 53110; Bovin was the sole surviving child of June Krulatz when she died on October 13, 2008 and the sole beneficiary of her Estate. On December 29, 2008, Bovin was appointed Special Administrator for the Estate of June Krulatz, Milwaukee County Circuit Court Case No. 2008PR002138 for purposes of prosecuting a wrongful death action on the Estate's behalf.
2. Defendant, Wisconsin Lawyers Mutual Insurance Company, is a Wisconsin corporation, with its principal place of business located at 725 Heartland Trail, Suite 300, Madison, Wisconsin 53717; at all times pertinent to the issues in this case, it had in force and effect a policy of professional liability insurance which provides coverage for plaintiff's claims in this matter.
3. Defendant, Phillips, Cymerman & Stein, SC ("PC&S"), is a Wisconsin service corporation, with its principal place of business located at 161 W. Wisconsin Ave., Suite 5000, Milwaukee, Wisconsin 53203; at all times pertinent to the issues in this case, defendant PC&S was engaged in the practice of law in the State of Wisconsin; its registered agent for service of process is Barry Cymerman 161 W. Wisconsin Ave., Suite 5000, Milwaukee, Wisconsin 53203.
4. Defendant, Emily D. Davey ("Davey"), is an attorney licensed to practice law in the State of Wisconsin who practiced as an employee and/or shareholder with the defendant law firm PC&S, and, as such, at all times pertinent to the issues in this case, defendant PC&S is vicariously liable for the actions and/or inactions Davey and all other employees involved in representing Bovin and the Estate of June Krulatz.
5. On December 18, 2007, June Krulatz (d/o/b June 7, 1937) was admitted to the Cameo Care Center located at 5790 S. 27th Street, Milwaukee, Wisconsin 53221, a skilled nursing home for long-term care. Upon admission, among other things, she was suffering from dementia, diabetes, macular degeneration and depression.
6. While in the care of Cameo Care Center, June Krulatz ("Krulatz") developed a sacral pressure sore that progressed until on October 3, 2008 she became unresponsive and was transferred to St. Luke's South Shore. Upon admission, the pressure sore was diagnosed as a Stage 2 sacral pressure ulcer. She was also diagnosed with sepsis and dehydration. She was transferred to Ruth Hospice on October 7, 2008 and died on October 13, 2008 as a result of sepsis.
7. Following Krulatz's death, plaintiff's wife, Lori Bovin, conducted internet research to find a law firm experienced in nursing home negligence cases to pursue a wrongful death action against Cameo Care. On the internet she found defendant PC&S which represented:
In prosecuting nursing home neglect cases, our goal is to make a difference for the elderly residents in our community, and create an environment where substandard care will not be tolerated. We have won many cases on behalf of our clients involving nursing home negligence, abuse, falls, bedsores, sepsis, wandering, and medication errors. . . . Our firm represents clients in injury cases and wrongful death cases arising out of nursing home negligence. . . . We will be here for you and will help you fully from those responsible for causing your loss. . . . We know what it takes to maximize the value of your case.
Subsequently, Bovin and his wife called, met with and hired the law firm of PC&S to prosecute a wrongful death negligence action against Cameo Care Center for its failure to reasonably care for Krulatz.
8. Over the next year, defendants obtained Krulatz's records and bills from Cameo Care Center, St. Luke's South Shore and Ruth Hospice.
9. On January 15, 2010, defendant sent a demand letter to Cameo Care Center's insurer West Bend Mutual Insurance Co., on behalf of Bovin and the Estate of June Krulatz. In part, Erica L. Elia, an attorney acting within the scope and course of her employment for defendant PC&S stated:
Based on the clear liability, the enclosed proof of injury and treatment, the extreme suffering Mrs. Krulatz endured for over eight months, and the loss of society and companionship sustained by her family as a result of Cameo's serious breach of care, our total settlement demand is $1,320,721.04. This amount includes $350,000.00 for the maximum wrongful death limit due to Mrs. Krulatz's young age, $950,000.00 for her extreme pain and suffering that lasted over eight months, and $20,721.04 for medical and funeral bills.
10. Almost exactly a year later on January 12, 2011, defendant Davey acting within the course and scope of her employment for defendant PC&S filed a wrongful death action captioned The Estate of June Krulatz, et al., v. West Bend Mutual Insurance Company, et al, Case No. 11CV587 in Milwaukee County Circuit Court.
11. On December 15, 2011, a Civil Division Scheduling Order was signed by Judge William Brash and entered by his clerk. Among other things, the Order required that plaintiffs' identify lay and expert witnesses, provide expert reports and itemize special damages on or before March 16, 2012.
12. Defendants failed to designate lay and expert witnesses, provide expert reports or itemize special damages on or before March 16, 2012. At a motion hearing on April 11, 2012, defendant Davey represented to the Court and defense counsel that the witness designations, reports and specials would be provided to defense counsel by the end of that week.
13. On May 8, 2012, defendants moved for summary judgment based on plaintiffs' failure to designate witnesses and produce expert reports in violation of the Court's scheduling order.
14. Plaintiffs did not file a written response to defendants' motion for summary judgment. Davey appeared and argued at the motion hearing on August 13, 2012, which was held over for continuation on September 4, 2012. Towards the end of August, plaintiff talked by telephone with Davey. She did not disclose or explain the actual status of the case.
15. On September 4, 2012, the Court granted defendants' motion for summary judgment and awarded taxable costs.
16. Several days after the September 4 hearing, plaintiff's wife checked the status of the case on CCAP and read that it had been dismissed. She called defendant Davey and asked why the case was dismissed. Defendant Davey stated that the case was dismissed because Judge Brash found Krulatz was always getting urinary tract infections and the nursing home was not at fault for her death.
17. Defendants were negligent and breached their fiduciary duties to plaintiff in the following ways:
1. failing to comply with the Court's Scheduling Order; 2. failing to have an expert review of Krultaz's nursing home and medical records;3. failing to take reasonable steps to retain an expert to testify to the causal negligence of Cameo Care Center or, in the alternative, failing to advise plaintiffs of their inability to secure expert testimony in a timely fashion so plaintiffs could hire other counsel to pursue the case; 4. failing to advise plaintiffs of their failure to comply with the Court's Scheduling Order; 5. failing to advise plaintiffs of the filing of defendants' motion for summary judgment and communicate fully and completely regarding the issues raised by the motion; 6. failing to keep plaintiffs reasonably informed of material case developments; and 7. failing to conduct a thorough investigation and evaluation regarding the possible bases for an action against Cameo Care Center.
18. The negligence and breach of fiduciary duties of defendants were a proximate cause of plaintiff's damages.
19. As a result of the defendants' negligence and breach of fiduciary duties, the plaintiffs' case against Cameo Care Center was dismissed and there was no recovery for the pain and suffering Krulatz suffered prior to her death, medical expenses, funeral expenses and the loss of society and companionship plaintiff sustained for which plaintiff seeks to recover in this action in an amount to be determined at trial.
WHEREFORE, plaintiff Steven Bovin demands judgment against Wisconsin Lawyers Mutual Insurance Company, Phillips, Cymerman & Stein, SC, and Emily D. Davey for his compensatory damages, costs, attorney's fees and such other relief the Court deems appropriate.