It may be years before families in O’Donnell case see any or all of big damage award

Nov. 22--It will be a long time before anyone sees any of the $39 million jurors awarded in the O'Donnell Park case for a death and injuries linked to the collapse of a concrete panel.

There will be a hearing Monday on whether the liability insurance for defendant Advance Cast Stone can be tapped. The insurer is claiming Advance acted intentionally in using a shortcut method of attaching the panel and is thus ineligible for coverage.

Jurors might be called back for another three days of testimony on that issue in January.

Then there is the matter of the $10 million limit under the Random Lake firm's insurance, and the inevitable appeal of the big verdict by Advance Cast Stone, an 85-year-old, family-owned firm that manufactures and installs precast concrete pieces used in commercial construction projects.

A final resolution of the case could take years, said Al Foeckler, who represents the mother of Jared Kellner, the 15-year-old Greenfield boy who died when the panel fell June 24, 2010.

"Nobody's getting any money any time soon," said Matthew McClean, the lawyer for Advance Cast Stone.

Jared was on his way to Summerfest with his friend, then-15-year-old Eric Wosinski, and Eric's parents, Amy and Steve Wosinski, when the panel dropped off the O'Donnell wall over the N. Lincoln Memorial Drive exit.

Amy Wosinski suffered a leg injury that required a partial amputation. Eric broke his leg and received a gash to his head. Steve Wosinski wasn't physically injured but, like his wife and son, suffered from post-traumatic stress disorder, according to trial testimony.

Dawn Kellner, Jared's mother, and the Wosinskis were motivated by wanting justice rather than personal enrichment, according to Foeckler and Tim Andringa, the Wosinskis' lawyer.

"This is about holding Advance Cast Stone accountable," Foeckler said.

McClean said the plaintiffs "seemed to have vengeance" in wanting to take down Advance Cast Stone. "There was a bit of blood lust in the way they went after the case," McClean said.

He said the company could wind up being dissolved if it loses an expected appeal.

"They wouldn't be able to survive something like this," McClean said.

Jurors Thursday pinned nearly all the blame for the panel collapse -- 88% of it -- on Advance Cast Stone. Milwaukee County, accused by Advance of failing to properly maintain the O'Donnell structure, was found to be 2% at fault.

At most, the county would pay less than $200,000 because of a limit on damage claim payouts by governmental units under state law, said Paul Bargren, the county's interim corporation counsel.

J.H. Findorff & Son, the construction manager on the project, was found 10% at fault. But Findorff settled before the trial so won't be affected by the jury verdict.

The numbers in the jury's damage award were: Nearly $7 million to Dawn Kellner for her son's suffering in the moments before his death and for her loss of his companionship; more than $11 million to the Wosinskis for their injuries and medical costs; and another $15 million in punitive damages.

The county also was awarded $6 million for its costs in repairing the O'Donnell structure and its loss of parking revenue while the parking garage was closed.

The post-trial jockeying will start with motions likely from Advance Cast Stone on a variety of subjects. Among them is the assertion that the O'Donnell accident happened far beyond the normal limit on construction claims, McClean said. The concrete panels on O'Donnell were erected in late 1990 and the first few five months of 1991.

The legal standard at issue is whether the firm concealed and misrepresented that it used two rather than the four prescribed connections for the panel that fell. Circuit Judge Christopher Foley decided there was enough evidence of that to allow the trial to proceed.

McClean said Advance didn't hide those connections because they "were left available for inspection." Plaintiffs' lawyers argued that wasn't so because the connections were hidden once the panels were installed.

Another issue he might raise is Foley's refusal to allow McClean to question two witnesses at trial who said they saw a tow truck at the O'Donnell exit that appeared to have struck the lower edge of the panel. Foley didn't allow that testimony because McClean didn't bring it up until shortly before the trial was slated to start.

That left McClean arguing to the jury for the likelihood of vehicle strikes loosening the panel from its perch, without any witnesses to back him up.

Those same issues could be rehashed in an appeal.

"Maybe we'll do better with a fresh set of eyes on this," McClean said.

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