Brown: $25 million settlement tossed over disputed jury note

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A personal injury lawyer who was tipped by a court clerk to the contents of a jury note committed fraud by settling the case without divulging that knowledge to the other side, a Cook County judge ruled Tuesday.

Circuit Judge Daniel J. Lynch vacated a $25 million settlement against Brunswick Corp. and Brunswick Boat Group because of the alleged misconduct by lawyer Mark McNabola, who struck a deal for his clients before Brunswick’s lawyers learned of the note’s existence.

McNabola represented Scot and Patricia Vandenberg of New Lenox, who filed suit over a 2009 accident in which Mr. Vandenberg was left paralyzed after falling from the top deck of the luxury yacht Bad Influence II. Vandenberg’s company had rented the boat for a company outing on Lake Michigan.

This is the case that I took to calling “Chicago Law” for its made-for-television, truth-is-stranger-than-fiction scenario. It’s a big hit with local lawyers, who have followed the case closely.

As you would expect in a TV show, the case pitted two of the city’s top lawyers, Dan K. Webb of Winston & Strawn for Brunswick against C. Barry Montgomery for the Vandenbergs.

Following the trial last summer, Webb replaced John Patton and Montgomery took over for McNabola when allegations of impropriety were raised about the trial’s wild climax.

At issue was a 27-minute delay between when a court clerk for Judge Elizabeth Budzinski first informed McNabola of a jury note and when she finally told Patton.

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The clerk, Tatiana Agee, not only told McNabola about the note’s existence, but also told him what it said, testimony at a post-trial hearing showed. That’s considered a real no-no.

Agee then held off calling Patton, an even bigger no-no, while McNabola settled the case with Brunswick’s insurance company. She later told a court intern she liked to give an advantage to plaintiffs.

Webb argued the note showed the jury was leaning in Brunswick’s favor and that there would have been no settlement if they had known.

At the hearing, McNabola admitted Agee informed him about the contents of the jury note, but said he assumed she was doing so at Budzinski’s instruction and had no way of knowing she hadn’t called Brunswick’s lawyers.

McNabola has argued his duty to his client exceeded any ethical responsibility he had to inform the judge or Brunswick’s lawyers about what Agee had done — and he never did divulge it until called into court.

In his ruling, Lynch agreed with Webb that Brunswick was placed at an unfair disadvantage by the actions of McNabola and Agee, although he found there was no evidence of a conspiracy between them.

The judge said it must have become obvious to McNabola that Brunswick’s lawyers did not know what he knew, but he chose to mislead them with his silence.

Lynch said criminal statutes may have been violated in Agee’s handling of the jury note and her later denials, including untruthful testimony during the post-trial hearing he conducted. But he did not say anything about referring the matter for prosecution.

Lynch also cited Supreme Court rules and ethical guidelines for lawyers to suggest how McNabola could be sanctioned for his handling of the case. But he did not impose any sanctions.

A visibly upset McNabola slumped in the back of the courtroom as Lynch made his ruling from the bench.

While he vacated the settlement, Lynch stopped short of entering a judgment in favor of Brunswick, as Webb had sought.

That request was based on a verdict the jury reached when it was allowed by Budzinski to continue deliberations despite the settlement agreement, another aspect to the case considered highly unusual.

Instead, Lynch invited the two sides to reopen settlement talks before he rules on whether there was a legitimate verdict or whether there should be a new trial, as the Vandenbergs contend.

I took that as a sign Lynch wants to see the case settled without another long delay in justice for the Vandenbergs, whose injuries are very real.

Both sides asked for a delay until Feb. 1 to confer with their clients about Lynch’s suggestion.

The judge praised the court intern, Brook Reynolds, for her “courage and candor” in coming forward to inform Budzinski about Agee’s actions.

In “Chicago Law,” heroes can be hard to find.

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