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Motion 14 - product liability motion to approve final settlement and attorneys fees

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Petition to Approve Final Settlement of Personal Injury Action and for Other Relief

Now comes the Plaintiff, Cheri Smith, Administrator of the Estate and Person of Raymond Smith, Jr., a disabled person, and moves the Court as follows:

1. Raymond Smith, Jr. was severely and permanently injured as a result of an explosion of a multi-piece wheel/rim he was working upon on March 16, 2004.

2. The instant lawsuit was filed in the Circuit Court of Cook County. A copy of the Fourth Amended Complaint at Law is attached hereto as Exhibit A, incorporated by reference herein and made a part hereof.

3. That after 5 years of intense litigation including the taking of more than 54 depositions, travel to at least 12 or more cities on multiple occasions, amassing a room full of documents and exhibits, and expending thousands of hours of work, the case has settled as the parties were preparing to select a jury.

4. Early in the proceedings the case was specially assigned to Judge James Flannery to monitor discovery and trial.

5. The trial court previously approved a partial settlement with certain Defendants for the total sum of $600,000.00. A copy of the Order dated January 23, 2008 is attached hereto marked Exhibit B, incorporated by reference herein and made a part hereof.

6. On December 18, 2008, the Court set the case for trial to commence on April 20, 2009. A copy of the Order is attached hereto marked Exhibit C, incorporated by reference herein and made a part hereof.

7. The trial did in fact begin on April 20, 2009 and a tentative settlement was reached with remaining Defendants on April 22, 2009.

8. Defendants have offered and Plaintiff has tentatively agreed to accept the following sums to conclude the case:

  • Titan Steel Wheels Limited
  • OTR Wheel Engineering, Inc.
  • Titan Wheel Corporation of Illinois and Virginia
  • $7,600,000.00
  • $ 100,000.00
  • $ 37,500.00

Copies of the Releases are attached hereto, marked exhibits D, E, & F, incorporated by reference herein and made a part hereof.

9. That Plaintiffs initial guardian, Raymond Smith, Sr., retained the services of Richard J. Grossman, and Steinberg, Burtker & Grossman, Ltd. to prosecute a products liability lawsuit against the parties legally responsible for Plaintiffs severe and permanent injuries. See attached retainer agreement dated April 24, 2004 marked Exhibit G, incorporated by reference herein and made a part hereof.

10. Plaintiffs employer, Antioch Tire, Inc. and its insurer Acuity Mutual Insurance Company claim a lien upon the settlement proceeds for the sum of $1,600,000.00 for its payment of Plaintiffs medically related charges which exceed $2,600,000.00. It also claims a future credit against any future sums that may be due Plaintiff for workers compensation up to the net products liability settlement paid to Plaintiff.

11. It is proposed that the settlement proceeds be distributed as follows:

  • Gross Final Settlement
  • Attorneys Fees
  • Repayment of workers compensation lien
  • Balance to Raymond Smith, Jr.
  • $7,737,500.00
  • $3,095,000.00
  • $1,600,000.00
  • $3,042,500.00

12. Attached hereto marked Exhibit H, incorporated by reference herein and made a part hereof is an itemized list of all costs and expenses incurred in prosecuting the products liability case which total $225,491.74. These monies have been fully reimbursed to Plaintiff's attorneys from the previous settlement of $600,000.00 from which $200,000.00 represented attorney's fees , and $150,000.00 represented partial payment of the workers compensation lien. The remaining funds held by Plaintiff's attorneys are in the sum of $24,508.26 and will be turned over to Raymond Smith, Jr.'s guardian or as directed by the Court.

13. The proposed settlements are in the best interest of Raymond Smith, Jr. given the fact that the Defendant's liability was the subject of great dispute and a claim of “assumption of risk” and “sole proximate cause” defense. If the case were tried, there existed a significant risk that a jury would find in favor of the Defendant, leaving Raymond Smith, Jr. with no compensation.

14. That the proposed settlement will allow Raymond Smith, Jr. to leave his current institutional setting at the Brentwood Extended Care Facility, purchase a home, transportation van, and provide him with the dignity he deserves.

WHEREFORE, Plaintiff moves the Court as follows:

a. To approve the proposed settlements with the remaining Defendants and make a specific finding that they are “fair and reasonable”;

b. To approve the payment of attorneys fees to Plaintiff's counsel;

c. To adjudicate the workers compensation lien of Acuity Mutual Insurance Company;

d. To retain all additional funds in Plaintiff's attorneys client funds account or a new interest bearing account until the Court can determine the appropriate living and financial arrangements for Raymond Smith, Jr.

Look at our product liability page for more information.

Look at our workers compensation page for more information.
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