Smith v. Cogswell Cogs

Wrongful discharge from employment

PRIVATE CLIENT DASHBOARD

LATEST UPDATE: 3.30.16 Return To Login Page

DAYS UNTIL TRIAL:

Day(s)

:

Hour(s)

:

Minute(s)

:

Second(s)

KEY DEADLINES:

Joinders & Amednments: August 15, 2016
Motions In Limine: December 15, 2016
Fact Discovery Cutoff: January 1, 2016
Expert Deposition Cutoff: February 30, 2016
ADR Deadline: October 18, 2016
Dispositive Motions: November 29, 2016
Jury Instructions: December 1, 2016
Trial (5 days): January 3, 2017

Court: Arapahoe County, Colorado
Case No. 2015-CV-13579
Claim No. 87654-ABCD-112233
Date of Loss: November 23, 2963
Case Type: Employment
Client Contact: Jo Bulow (303) 748-5021
Adjuster: Igkotha Chekbuk 

TRIAL JUDGE:

Judge Chamberlain Haller

Judge Haller has been on the state district court bench since 1942. He was previously an insurance defense lawyer, but the general local consensus regarding this judge is that he hates insurance companies and deals with disdain with insurance defense and corporate counsel. This is the reason we were so careful to request trial to a jury. Thus far, defense counsel has not yet tried a case before Judge Haller, so what is known of him comes from other lawyers in the community who have shared their perceptions of this mercurial jurist. Judge Haller is a stickler for the rules of evidence, and responds best when the exact text of a rule is cited along with a motion or objection. He is also somewhat hearing impaired, and has been known to volunteer answers to questions that have been put to witnesses.

OPPOSING COUNSEL:

Saul Goodman is a relatively experienced personal injury and criminal defense lawyer. He tends to settle rather than try cases; knowledge of this propensity can drastically undercut his negotiation strategy, for it is generally safe to “call his bluff.” He is suspected to have close ties to organized crime, drug dealers in particular. He is rather vain, seemingly preoccupied with his personal appearance. His license to practice law has been suspended on more than one occasion. His biography on line can be accessedhere.

JURY DEMOGRAPHICS:

Jury pools in Arapahoe county tend to be widely varied in their occupational and educational backgrounds, but in general tend to be largely Republican voters of better than average education, particularly when compared with juries in downtown Denver. Compared to jury pools nationally, they tend to be mildly conservative, and tend to be better than juries in southern states at separating their emotional reactions from their analysis of facts and application of the law read to them by the court. The Arapahoe County jury pools are derived from voter registration and drivers license databases. No juror in Arapahoe County is required to serve more than once in any calendar year, and those who are summoned tend to receive summonses every 3 to 5 years.

LATEST DEVELOPMENTS:

The deposition of Milton Nowidal, Plaintiff’s expert economist, was taken on November 15, 2015 at the offices of Plaintiff’s attorney, Berkely Drekslinger. The deposition went well, in that Mr. Nowidal stated that Plaintiff is making twice in her job with Spacely Sprockets what she had earned with Cogswell Cogs.
Read summary below

CASE SYNOPSIS:

This is an employment dispute arising out of the termination of claimant, who worked as a manager in the Accounting Department. She was fired after being placed on written probation for 30 days after she slapped her supervisor, John Rougecheek in front of two witnesses.

FACTUAL DETAILS:

The Plaintiff is a 21-year old veteran of the U.S. Army with a longstanding diagnosis of PTSD (per Army psychiatrists) resulting from extended combat operations, including two tours in Viet Nam. She has no criminal history, however she has been arrested for assault on two occasions following her termination from employment with Cogswell Cogs, Inc. She was initially hired into the mail-room as a clerk, but quickly spotted a number of irregularities in the check-processing procedures of the company. She was then promoted to the post of Vice President of Accounting, over the objections of several of the other mail-room clerical staffers, who complained that they had been “framed” or “set up” in connection with the allegations of check theft.

At vero eos et accusamus et iusto odio dignissimos ducimus qui blanditiis praesentium voluptatum deleniti atque corrupti quos dolores et quas molestias excepturi sint occaecati cupiditate non provident, similique sunt in culpa qui officia deserunt mollitia animi, id est laborum et dolorum fuga. Et harum quidem rerum facilis est et expedita distinctio. Nam libero tempore, cum soluta nobis est eligendi optio cumque nihil impedit quo minus id quod maxime placeat facere possimus, omnis voluptas assumenda est, omnis dolor repellendus. Temporibus autem quibusdam et aut officiis debitis aut rerum necessitatibus saepe eveniet ut et voluptates repudiandae sint et molestiae non recusandae. Itaque earum rerum hic tenetur a sapiente delectus, ut aut reiciendis voluptatibus maiores alias consequatur aut perferendis doloribus asperiores repellat.

CHRONOLOGY:

March 1, 2014: Plaintiff hired as clerk in mail room.

March 29, 2014: Plaintiff reports checks missing from mail room distribution bin.

April 3, 2014: Plaintiff is promoted to V.P of Accounting Accountability.

April 19, 2014: Plaintiff slaps supervisor, John Rougecheek in front of two witnesses: Sally Slithers and Mark Marquette.

July 22, 2014: Plaintiff placed on probation.

August 22, 2014: Plaintiff terminated from employment with Cogswell Cogs, Inc.

CASE STRATEGY:

Defense counsel’s assessment of this case is that the jury will not respond well to the Plaintiff’s unwarranted use of physical violence in the workplace, and may conclude that Plaintiff staged the check fraud “discovery” that led to her promotion from the mail room to the level of a corporate officer. The depositions of key witnesses have not yet been taken but they have all been interviewed. Several of them will testify live at trial, but it will be necessary to obtain trial video testimony from the Plaintiff’s supervisor, John Rougecheek, who is now permanently disabled due to an unrelated automobile accident in Florida.

At vero eos et accusamus et iusto odio dignissimos ducimus qui blanditiis praesentium voluptatum deleniti atque corrupti quos dolores et quas molestias excepturi sint occaecati cupiditate non provident, similique sunt in culpa qui officia deserunt mollitia animi, id est laborum et dolorum fuga. Et harum quidem rerum facilis est et expedita distinctio. Nam libero tempore, cum soluta nobis est eligendi optio cumque nihil impedit quo minus id quod maxime placeat facere possimus, omnis voluptas assumenda est, omnis dolor repellendus. Temporibus autem quibusdam et aut officiis debitis aut rerum necessitatibus saepe eveniet ut et voluptates repudiandae sint et molestiae non recusandae. Itaque earum rerum hic tenetur a sapiente delectus, ut aut reiciendis voluptatibus maiores alias consequatur aut perferendis doloribus asperiores repellat.

EXPERT WITNESSES:

PLAINTIFF EXPERTS:

Mlton Nowidal (Economist):  

At vero eos et accusamus et iusto odio dignissimos ducimus qui blanditiis praesentium voluptatum deleniti atque corrupti quos dolores et quas molestias excepturi sint occaecati cupiditate non provident, similique sunt in culpa qui officia deserunt mollitia animi, id est laborum et dolorum fuga. Et harum quidem rerum facilis est et expedita distinctio. Nam libero tempore, cum soluta nobis est eligendi optio cumque nihil impedit quo minus id quod maxime placeat facere possimus, omnis voluptas assumenda est, omnis dolor repellendus. Temporibus autem quibusdam et aut officiis debitis aut rerum necessitatibus saepe eveniet ut et voluptates repudiandae sint et molestiae non recusandae. Itaque earum rerum hic tenetur a sapiente delectus, ut aut reiciendis voluptatibus maiores alias consequatur aut perferendis doloribus asperiores repellat.

DEFENSE EXPERTS:

Hannibal Lecter (Psychiatrist): 

Dr. Lecter is a renowned psychiatrist with a world-wide reputation, who has opined that the Plaintiff is clinically insane. He has further opined that she suffers from a recognized syndrome know as “depressive antisocial sado-gratism,” which in lay terms means that the person has learned to process any uncomfortable social or professional situations by launching an over-the-top attack to both distract and dissuade others from placing the subject in any kind of uncomfortable situation. 

At vero eos et accusamus et iusto odio dignissimos ducimus qui blanditiis praesentium voluptatum deleniti atque corrupti quos dolores et quas molestias excepturi sint occaecati cupiditate non provident, similique sunt in culpa qui officia deserunt mollitia animi, id est laborum et dolorum fuga. At vero eos et accusamus et iusto odio dignissimos ducimus qui blanditiis praesentium voluptatum deleniti atque corrupti quos dolores et quas molestias excepturi sint occaecati cupiditate non provident, similique sunt in culpa qui officia deserunt mollitia animi, id est laborum et dolorum fuga. Et harum quidem rerum facilis est et expedita distinctio. Nam libero tempore, cum soluta nobis est eligendi optio cumque nihil impedit quo minus id quod maxime placeat facere possimus, omnis voluptas assumenda est, omnis dolor repellendus. Temporibus autem quibusdam et aut officiis debitis aut rerum necessitatibus saepe eveniet ut et voluptates repudiandae sint et molestiae non recusandae. Itaque earum rerum hic tenetur a sapiente delectus, ut aut reiciendis voluptatibus maiores alias consequatur aut perferendis doloribus asperiores repellat.

PENDING MOTIONS:

 

DEFENSE MOTIONS:

  1. Motion to compel production of Plaintiff’s psychiatric records (filed 2-28-2016)
  2. Motion for protective order related to depositions by Plaintiff’s counsel of corporate employee witnesses (unfiled, being drafted)

PLAINTIFF MOTIONS:

  1. Motion for leave to withdraw (by Sol Goodman’s predecessor counsel) (filed 6-21-2016)
KEY COURT ORDERS:

 

  1. Order Permitting Plaintiff’s Counsel To Appear Pro Hac Vice (7-3-2015)
  2. Order Denying Motion To Amend To Assert Punitive Damages (8-22-2015)
  3. Order Granting Defense Motion for Cost Bond (9-1-2015)
  4. Order Granting Defendant’s Motion To Compel Plaintiff To Undergo Independent Psychiatric Examination (10-11-2015)
CALENDAR OF UPCOMING EVENTS:

Deposition of Cogswell Rule 30(b)(6) designees: March 2-4, 2015
Deposition of John Rougecheek: April 15, 2016
Deposition of Plaintiff’s expert economist: June 1, 2015
Deposition of Plaintiff’s husband, John Smith: October 18, 2015
Hearing on motion to compel psychiatric records: November 23, 2015
Deposition of Plaintiff’s psychotherapist: November 23, 2015

SETTLEMENT:

Plaintiff’s latest demand is $225,000.
Defense counsel extended written offer of settlement of $12,000 on June 6, 2014.
Defense counsel believes that there is a 70% likelihood of a defense verdict. Recommends cost-of-defense only; Cogswell’s in-house counsel is not inclined to offer cost of defense in employment cases due to concerns of adverse precedent and “copycat” litigation.
INSURANCE:

PRIMARY:
Fifthwright Ins. Co.
CGL/EPLI Claims made coverage (12/2/14-12/2/14)
Policy No. 123-456789-AB/C
$1M/$2M limit
Punitive damage exclusion
$50K Self-Insured Retention

EXCESS:
Slammer’s Mutual Ins. Co.
Policy No. 76654
Follow-form excess
Policy No. 38177617939992887/282
$10M CSL
Punitive damage exclusion

UMBRELLA:
Laxity Carriers of The Balkans, LTD
Broad form excesss/umbrella
Occurrence (12/2/14-12/2/14)(***likely not applicable***)
Policy No. 12
$100M limit
Exhaustion requirement for primary & excess
Covers punitive damages where allowed by law

Selected Summaries

Deposition of Milton Nowidal (2-17-2016)

The deposition of Milton Nowidal, Plaintiff’s expert economist, was taken on November 15, 2015 at the offices of Plaintiff’s attorney, Berkely Drekslinger. The deposition went well, in that Mr. Nowidal stated that Plaintiff is making twice in her job with Spacely Sprockets what she had earned with Cogswell Cogs.

Mr. Nowidal’s deposition was successful, in that we were able to elicit a number of key admissions that will facilitate his cross-examination at trial. For example, he admitted that he was on the grassy knoll on November 22, 1963, and that he had fired a rifle round directly at the presidential motorcade. While this has little to do with the economic losses sustained by Ms. Smith is the result of her allegedly wrongful termination from employment, the submission will cast Mr. Nowidal in an unfavorable light in the eyes of the jury. To make matters worse for him, he remains under indictment under a number of criminal counts, including discharging a firearm within city limits, conspiracy to commit treason, and perjury. The perjury charge will probably be the only criminal charge that is admissible under the Court’s prior rulings.

Nunc nam pretium sociis sodales luctus aenean. Commodo amet, lacus odio quam vel aptent proin semper, feugiat sed, sit tellus blandit nibh, mauris porttitor nisl non. Maecenas sem elit, dapibus quis a molestie eget lobortis sed, augue ad vestibulum, elit nec. Quam lorem amet non, tellus eu ante metus dolor sed, odio fusce, lorem rhoncus condimentum enim feugiat blandit tincidunt. Vulputate porta aliquam volutpat dolor urna dignissim.

Tempus tempus, pede felis arcu interdum aliquam gravida venenatis, quis class vitae interdum tellus imperdiet. At nunc eget cras dui vestibulum sociis, ligula sed quis vivamus pede mattis vestibulum, lorem iaculis qui ac sed semper, euismod conubia amet placerat, molestie sed donec euismod aliquet. Nunc elit adipiscing. Gravida tincidunt facilisi pellentesque sed nullam a, amet vel sit massa vivamus. Aliquam etiam enim erat ac fringilla, maecenas ultrices praesent risus, molestie lorem natoque in donec proin amet. Lobortis a, nec risus donec lorem vestibulum, vel est vero ligula donec, ligula ac suspendisse sit, sem maecenas eros integer. Sed vulputate ut facilisi. Lobortis lectus, sed faucibus, neque facilisis nunc. Fermentum sodales, cras in eu et, vivamus laoreet fermentum tempus per. Nec quisque nec mauris lorem rutrum, nonummy cras, accusamus donec vel inceptos sollicitudin. Sodales sollicitudin. Sit eget neque magna. Feugiat ipsum consectetuer in massa. Condimentum justo, molestie in ac vivamus eleifend omnis, arcu sapien ligula in donec. Purus vivamus placerat proin suscipit viverra in, nostra vehicula scelerisque sed sapien, mauris tincidunt scelerisque amet. Ad sodales vitae, justo pharetra gravida id mauris vestibulum a, scelerisque sem eleifend.

Hearing on motion to compel (4-16-2016)

A hearing on our pending motion to compel plaintiff’s diary was conducted by the court on February 16, 2016. At the outset of the hearing, the court appeared to be somewhat antagonistic towards our motion, questioning why we needed private information such as a personal diary. When we explained to the court that the information was necessary because of our earlier discovery of the plaintiff’s Facebook page, in which she posted a brief excerpt from her diary contending that she was “milking the legal system,” and “expecting to make a killing,” the court appeared satisfied that we had adequate grounds to obtain information. The court’s next inquiry was whether or not the information was inherently privileged, and if so, whether the privilege had been waived by the plaintiff’s posting of the information on Facebook.

Mr. Nowidal’s deposition was successful, in that we were able to elicit a number of key admissions that will facilitate his cross-examination at trial. For example, he admitted that he was on the grassy knoll on November 22, 1963, and that he had fired a rifle round directly at the presidential motorcade. While this has little to do with the economic losses sustained by Ms. Smith is the result of her allegedly wrongful termination from employment, the submission will cast Mr. Nowidal in an unfavorable light in the eyes of the jury. To make matters worse for him, he remains under indictment under a number of criminal counts, including discharging a firearm within city limits, conspiracy to commit treason, and perjury. The perjury charge will probably be the only criminal charge that is admissible under the Court’s prior rulings.

Nunc nam pretium sociis sodales luctus aenean. Commodo amet, lacus odio quam vel aptent proin semper, feugiat sed, sit tellus blandit nibh, mauris porttitor nisl non. Maecenas sem elit, dapibus quis a molestie eget lobortis sed, augue ad vestibulum, elit nec. Quam lorem amet non, tellus eu ante metus dolor sed, odio fusce, lorem rhoncus condimentum enim feugiat blandit tincidunt. Vulputate porta aliquam volutpat dolor urna dignissim. Tempus tempus, pede felis arcu interdum aliquam gravida venenatis, quis class vitae interdum tellus imperdiet. At nunc eget cras dui vestibulum sociis, ligula sed quis vivamus pede mattis vestibulum, lorem iaculis qui ac sed semper, euismod conubia amet placerat, molestie sed donec euismod aliquet. Nunc elit adipiscing. Gravida tincidunt facilisi pellentesque sed nullam a, amet vel sit massa vivamus.

Aliquam etiam enim erat ac fringilla, maecenas ultrices praesent risus, molestie lorem natoque in donec proin amet. Lobortis a, nec risus donec lorem vestibulum, vel est vero ligula donec, ligula ac suspendisse sit, sem maecenas eros integer. Sed vulputate ut facilisi. Lobortis lectus, sed faucibus, neque facilisis nunc. Fermentum sodales, cras in eu et, vivamus laoreet fermentum tempus per. Nec quisque nec mauris lorem rutrum, nonummy cras, accusamus donec vel inceptos sollicitudin. Sodales sollicitudin. Sit eget neque magna. Feugiat ipsum consectetuer in massa. Condimentum justo, molestie in ac vivamus eleifend omnis, arcu sapien ligula in donec. Purus vivamus placerat proin suscipit viverra in, nostra vehicula scelerisque sed sapien, mauris tincidunt scelerisque amet. Ad sodales vitae, justo pharetra gravida id mauris vestibulum a, scelerisque sem eleifend.

Deposition of John Rougecheek (12-15-2015)

 

The deposition of John Rougecheek (Plaintiff’s supervisor at Cogswell Cogs) was taken on December 15, 2015 by counsel for the Plaintiff. As expected,

Executive Summary

As expected, Mr. Rougecheek was an excellent witness. Most of the questions put to him during the deposition related to the incident that occurred on April 19, when she slapped Mr. Rougecheek in front of three other employee witnesses. Mr. Rougecheek clearly and convincingly explained how unexpected the slapping incident erupted, credibly explaining that there was no provocation whatsoever for Plaintiff’s assault on him. Mr. Rougecheek appeared for his deposition with a photo that his wife had taken of his face immediately after Ms. Smith slapped him.

During the deposition, Ms. Smith’s attorney, Mr. Goodman, had several temperamental outbursts, which all appeared to defense counsel as mere theatrics, but which Mr. Goodman later attributed to “not taking meds.” The outbursts were clearly recorded on the deposition video (at least the audio portions of the same), and the defense anticipates seeking a protective order before any further employee witnesses are deposed by Mr. Goodman. The mere pendency of such a motion may deter Mr. Goodman from taking further depositions, and may have an influence on the settlement value of the claim.

Details of Deposition

Nunc nam pretium sociis sodales luctus aenean. Commodo amet, lacus odio quam vel aptent proin semper, feugiat sed, sit tellus blandit nibh, mauris porttitor nisl non. Maecenas sem elit, dapibus quis a molestie eget lobortis sed, augue ad vestibulum, elit nec. Quam lorem amet non, tellus eu ante metus dolor sed, odio fusce, lorem rhoncus condimentum enim feugiat blandit tincidunt. Vulputate porta aliquam volutpat dolor urna dignissim. Tempus tempus, pede felis arcu interdum aliquam gravida venenatis, quis class vitae interdum tellus imperdiet. At nunc eget cras dui vestibulum sociis, ligula sed quis vivamus pede mattis vestibulum, lorem iaculis qui ac sed semper, euismod conubia amet placerat, molestie sed donec euismod aliquet. Nunc elit adipiscing. Gravida tincidunt facilisi pellentesque sed nullam a, amet vel sit massa vivamus.

Aliquam etiam enim erat ac fringilla, maecenas ultrices praesent risus, molestie lorem natoque in donec proin amet. Lobortis a, nec risus donec lorem vestibulum, vel est vero ligula donec, ligula ac suspendisse sit, sem maecenas eros integer. Sed vulputate ut facilisi. Lobortis lectus, sed faucibus, neque facilisis nunc. Fermentum sodales, cras in eu et, vivamus laoreet fermentum tempus per. Nec quisque nec mauris lorem rutrum, nonummy cras, accusamus donec vel inceptos sollicitudin. Sodales sollicitudin. Sit eget neque magna. Feugiat ipsum consectetuer in massa. Condimentum justo, molestie in ac vivamus eleifend omnis, arcu sapien ligula in donec. Purus vivamus placerat proin suscipit viverra in, nostra vehicula scelerisque sed sapien, mauris tincidunt scelerisque amet. Ad sodales vitae, justo pharetra gravida id mauris vestibulum a, scelerisque sem eleifend.

Jane P. Smith

Biographical Data

Born: September 22, 1991, Cheyenne, WY
Education: B.S. Accounting, Lolita Univ. 2010
Marital status: Single
Children: None
Current occupation: cocktail waitress at Hooligans Bar & Meat Market
Current income: $19,500 plus tips (est’d $240K/yr)
Attorney: Saul Goodman

Jane Smith was raised in a series of foster homes and a home for delinquent children in the small town of Black Eye, Wyoming (pop. 39). She was arrested several times during her youth, but has no criminal record as an adult. She apparently had several juvenile convictions, but her record was expunged according to her former boyfriend, Luke Slikaladiewhom she has not seen in several years. She was adopted at age two and then abandoned by her adoptive parents, Mildred Smith and Jedediah Smith, whose current whereabouts are unknown but who are believed to have emigrated to South America to avoid extradition in relation to pending arrest warrants that were issued in 1990. The true names of her biological parents are also unknown, as her adoption records have been sealed.

Train accident. At age 16, she was hit by a slow-moving train that she was trying to board illegally in a rail yard at Rock Springs, Wyoming, during an attempt to run away. She retained her current attorney to bring a FELA claim against the railroad and obtained a settlement of undisclosed amount, which was evidently sufficient to permit her to become instantly financially independent. She moved out of the foster home in Black Eye and rented an apartment in Denver, Colorado, where she resides to this day.

Alleged involvement in bank robbery. In 2012, at age 23, Smith was briefly taken hostage by two armed robbers in a failed attempt to rob the First Federal Bank & Loan (Southwestern Aurora Branch). She was dragged at gunpoint to a blue van waiting in the parking lot, at which point the assailants removed their stocking caps and offered her a cigarette, which she accepted. She stood with the gunmen, smoking and laughing, as patrol cars arrived. At that point, she dropped her cigarette and began to cry, claiming that she had “never been so fearful for her life.” Local law enforcement personnel have stated in candid interviews with Godfrey | Johnson lawyers that she was a suspect in the robbery attempt, but that a decision not to prosecute her was made by the assistant district attorney.

Litigation history: Ms. Smith has been involved in three lawsuits as a defendant. All three cases were filed in the month of February, 2013, and all three of these cases arose out of a party stunt in which she was involved at a fundraising dinner sponsored by the Denver Museum of Culture. The complaints alleged that Ms. Smith spent a few minutes mingling in the lobby where the reception was being held, and while initiating conversations with various guests, she held up her hand to show the person with whom she was speaking that she had gotten a deep cut on her hand when she broke a champagne flute in her hand. Without warning, she smeared some blood on the other person’s arm or face. After three of these rude encounters, she brought the room to silence by clinking a spoon against the punch bowl. When she had the attention of the room, she announced that she had contracted AIDS, and cried out, “Now several of you are infected!” A few minutes later, she left the room and the party broke up early. The three persons she had smeared with her allegedly tainted blood later filed suit against her for intentional interference with emotional distress. The cases were stayed by stipulation on the basis of her purported involvement as a defendant in anticipated prosecution and her announced intention to invoke her 5th Amendment privileges. The cases were later dismissed voluntarily. No settlement amounts were paid, and it is not known how she persuaded the plaintiffs in those actions to dismiss the matters.

Mental health history: A motion to compel is pending on the issue of the production of her mental health records.