LITIGATIONRESULTS - Whyte Hirschboeck Dudek SC

LITIGATIONRESULTS 

2012 

A compilation of client success

LITIGATIONRESULTS 

A compilation of client success 

2012

FOREWORD 

4 LITIGATION RESULTS

Opportunity and risk are part of business. When your business interests are 

at stake, it’s important that your legal counsel sees the big picture before 

recommending action. 

At the core of Whyte Hirschboeck Dudek S.C.’s Litigation Practice Group 

are highly skilled lawyers who protect the interests of our clients. First and 

foremost, however, we are business advisers who work with you to develop 

the best strategy to meet your objectives. Should the need arise, we are 

committed to vigorously defending or prosecuting lawsuits—be they complex 

or straightforward—and have an impressive winning record to show for it. In 

fact, in 2011 Wisconsin Super Lawyers® named WHD the Top Large Law Firm 

for Litigation in Wisconsin, and most recently, WHD was recognized by Apple 

Inc. as a 2013 Go-To Law Firm for Intellectual Property Litigation. 

As lawsuits can jeopardize a business’ reputation and disrupt operations, our 

goal is to keep our clients from ever reaching that point. By identifying and 

helping to manage our clients’ risks, lawsuits can be prevented. When they 

are unavoidable, we are equipped to handle them. 

When it makes sense to take a case to trial, we welcome the opportunity— 

and we achieve results. We invite you to review this sampling of our work from 

the past 12 months. We hope it will inspire you to work with us in the future. 

Sincerely, 

Ross A. Anderson 

Cynthia L. Buchko 

Francis H. LoCoco 

Litigation Practice Group Leaders 

LITIGATION RESULTS 5

TABLE OF 

CONTENTS

Representative Achievements 

WHD Wins Jury Verdict of Patent Infringement 9 

WHD Obtains Reversal from Court of Appeals in Priority Dispute 10 

WHD Defeats Federal Receiver in Attempted “Clawback” Action 13 

WHD Successfully Defends Estate Beneficiaries Against 

Large Wisconsin Institution 14 

WHD Saves Interstate Pipeline Company $5.6 Million 17 

WHD Successfully Defends Seven-Figure Insurance Claim in the Seventh Circuit 18 

WHD Wins Summary Judgment for its Client – Twice! 21 

WHD Successfully Defends Claims of Conspiracy, Tortious 

Interference with Contract and Defamation 22 

WHD Obtains Injunctive Relief Preserving Reinsurance Trust 

Fund Pending Arbitration Under Reinsurance Agreements 25 

WHD Invalidates a Restrictive Covenant Not to Compete 

in the Accounting Industry 26 

WHD Obtains Directed Verdict at Close of Plaintiffs’ Evidence 29 

WHD Defeats Federal Court Class Action Claim 30 

WHD Obtains Summary Judgment for Local Festival: Court Applies 

Wisconsin’s Recreational Immunity Statute to Public Sidewalk 33 

WHD Obtains Summary Judgment in Personal Injury 

Case Arising from Loading/Unloading Operations 34 

WHD Obtains Defense Verdict 37 

WHD Dismisses Counterclaims Then Prevails at Trial 38 

WHD Successfully Obtains and Defends Grant of Summary Judgment 

on Grounds That Plaintiff Offers No Credible Exposure Evidence 41 

Honors & ACCOLADES 42 

Litigation Attorneys & Paralegals 48

WHD Wins Jury Verdict of 

Patent Infringement 

Nowakowski 

McIntyre 

In October 2012, WHD obtained a jury verdict of patent infringement in favor 

of its client, Havco Wood Products LLC (Havco) in Havco Wood Products 

LLC v. Industrial Hardwood Products, Inc. Havco filed its complaint in late 

2010 in the U.S. District Court for the Western District of Wisconsin, asserting 

that its primary competitor, Industrial Hardwood Products, Inc. (IHP), infringed 

a number of claims of five patents owned by Havco relating to reinforced 

wood-composite truck flooring. Havco had invested years and a substantial 

amount of money developing its reinforced wood-composite truck flooring 

and a process to manufacture it on a commercial scale. IHP began selling 

its infringing reinforced wood-composite truck flooring in 2010. After nearly 

two years of fact and expert discovery, two claim construction hearings and 

two summary judgment motions of non-infringement brought by IHP, the 

case finally went to trial before a jury on Oct. 22, 2012. A unanimous jury 

found that IHP’s competing product infringed all asserted claims of four of 

Havco’s patents (the fifth had been dismissed earlier in the case). The parties 

stipulated to damages for IHP’s past infringing sales. 

Litigation Type: Intellectual property litigation 

Court: U.S. District Court for the Western District of Wisconsin 

Lead WHD Counsel: Kenneth Nowakowski and Jeffrey McIntyre 

Principal WHD Team Members: Kenneth Nowakowski, Jeffrey McIntyre, 

Gary Plotecher, Melissa Caulum Williams, Barbara Zabawa, Melinda Giftos, 

Cindi Wittlinger (paralegal – litigation support specialist), Cheryl Louis (paralegal) 

Practice Areas Involved: Intellectual Property, Litigation 


WHD Obtains Reversal 

from Court of Appeals in 

Priority Dispute 

In Multicircuits, Inc. v. Michael P. Grunsted, et al., WHD was retained by 

Fidelity National Title Group, Inc. to represent its insured, CitiMortgage, Inc. 

(Citi), in a dispute regarding the priority of its mortgage over a mortgage held 

by Multicircuits, Inc. Multicircuits commenced a foreclosure action in which 

it sought to foreclose the interest held by Citi in the same property. After the 

owners of the property consented to the entry of a judgment of foreclosure in 

favor of Multicircuits, Citi and Multicircuits each moved for summary judgment 

alleging that its respective mortgage was superior to the other. 

During discovery, WHD determined that when Multicircuits obtained an 

assignment of its mortgage from Associated Bank, it was not assigned 

the promissory note, which the mortgage secured. While the Multicircuits’ 

mortgage was recorded before the Citi mortgage, Citi argued that its mortgage 

was entitled to priority based upon equitable subrogation and on the grounds 

that Multicircuits could not enforce its mortgage because it did not hold the 

promissory note, and therefore, did not have standing to enforce its mortgage. 

The trial court held that Multicircuits’ mortgage was entitled to priority over Citi’s 

mortgage pursuant to Wis. Stat. § 706.11 because it had been recorded first. 

The trial court rejected Citi’s argument that it was entitled to priority based upon 

equitable subrogation and held that whether Multicircuits was assigned the 

promissory note was a “red herring.” The trial court also denied Citi’s request 

to stay the sheriff’s sale of the property pending Citi’s appeal, forcing Citi to 

purchase the property at the sheriff’s sale to preserve its rights. 

On appeal, the Court of Appeals reversed the trial court and found entirely in 

Citi’s favor, finding that because Multicircuits was not assigned the promissory 

note or underlying debt secured by its mortgage, it could not enforce its 

mortgage, and therefore, could not possibly have priority over the Citi 

mortgage. The Court of Appeals remanded the case to the trial court, ordering 

that Multicircuits refund all proceeds it received from the sheriff’s sale to Citi, but 

not disturbing the trial court’s order confirming the sheriff’s sale in Citi’s favor. 

ANDERSON 

posnanski 

Litigation Type: Real estate, creditors’ rights 

Courts: Winnebago County Circuit Court, District II Court of Appeals 

Lead WHD Counsel: Ross Anderson and Timothy Posnanski 

Principal WHD Team Members: Ross Anderson, Timothy Posnanski 

Practice Areas Involved: Litigation; Real Estate; Consumer Financial 

Services; Business Restructuring, Creditors’ Rights & Bankruptcy 


WHD Defeats Federal 

Receiver In Attempted 

“Clawback” Action 

arnold 

liotta 

WHD successfully defended its client, a fund investor, in federal court from 

fraudulent transfer and unjust enrichment claims seeking recovery of seven 

figures worth of payments received before one of the largest investment 

fund failures in Wisconsin history. The complaint was drafted by a Chicago 

firm, and had the Securities and Exchange Commission’s backing. WHD 

convinced the court to dismiss the complaint before discovery opened, 

obtaining judgment in the client’s favor on a motion to dismiss, and on a 

subsequent motion for reconsideration. 

Litigation Type: Federal receivership attempted 

“clawback” action 

Court: U.S. District Court for the Eastern District of Wisconsin 

Lead WHD Counsel: Bruce Arnold and Jeffrey Liotta 

Principal WHD Team Members: Bruce Arnold, Jeffrey Liotta, 

Patrick Harvey, Debra Prim (paralegal) 

Practice Areas Involved: Litigation; Business Restructuring, 

Creditors’ Rights & Bankruptcy 


WHD Successfully Defends 

ESTATE Beneficiaries Against 

Large Wisconsin Institution 

WHD successfully defended the beneficiaries of a $9 million estate against 

a large Wisconsin institution in a will contest that involved complex issues 

of testamentary capacity, proper execution of wills, and standing to sue. 

The clients were beneficiaries of their father’s will executed shortly before his 

death. After such will was admitted to probate, the Wisconsin institution—a 

beneficiary under a prior will—sued to overturn the latest will, alleging that the 

latest will was invalid because the decedent lacked testamentary capacity 

and that the will was procured by the clients’ undue influence. In addition 

to testamentary capacity and undue influence claims, this litigation included 

disputes over legal issues of first impression regarding the requirements 

for execution of a will under Wisconsin’s adaptation of the Uniform Probate 

Code and regarding a third party’s right to compel an autopsy for purposes of 

discovery in civil litigation. The case was successfully settled after a two-day 

mediation following more than a year and a half of litigation. At the end of the 

mediation, the clients walked away with a dismissal of the objection to will in 

exchange for what amounted to the expense of taking the matter through trial. 

halley 

tidwall 

Litigation Type: Will contest – trust and estate litigation 

Court: Milwaukee County Circuit Court 

Lead WHD Counsel: Philip Halley and Karen Tidwall 

Principal WHD Team Members: Philip Halley, Karen Tidwall, 

Pamela Price (paralegal) 

Practice Area Involved: Trust, Estate & Fiduciary Litigation 


WHD saves interstate pipeline 

company $5.6 million 

pyper 

buchko 

In Gary Poeppel Living Trust v. Enbridge Energy, Limited Partnership 

(Enbridge), Jefferson County Circuit Court Case No. 2009-CV-365, Enbridge 

constructed two interstate crude oil pipelines through the plaintiff’s property 

in 2007 and 2008. The property had two existing pipelines in the same 

easement corridor that were constructed in 1968 and 1997. After the 2007- 

2008 construction, the plaintiff opposed Enbridge’s drain tile system repair 

design and, thus, water problems arose on the property. The plaintiff claimed 

the pipelines were buried at insufficient depths, and the only way the property 

could be properly remediated was to lower the pipelines, which would have 

cost Enbridge in excess of $5.6 million. The plaintiff asked the court to order 

Enbridge, represented by WHD, to lower the pipelines. While Enbridge agreed 

that it was obligated to repair the drain tile, Enbridge claimed that the repairs 

were not done after construction because of the plaintiff’s conduct, namely, 

the demand that the pipelines be lowered. Enbridge sought access to the 

plaintiff’s property to install its proposed drain tile system to remedy the 

drainage problems and remediate the property. After a three-day trial, Judge 

Hue in Jefferson County Circuit Court rejected the plaintiff’s contention that 

Enbridge should be ordered to lower the pipelines, found that Enbridge’s 

drain tile system design would adequately drain the property for cultivation, 

and entered an order giving Enbridge access to the property to install its 

proposed drain tile system. The positive outcome saved Enbridge more than 

$5.6 million. 

Litigation Type: Specific performance of an easement 

Court: Jefferson County Circuit Court 

Lead WHD Counsel: Thomas Pyper and Cynthia Buchko 

Principal WHD Team Members: Thomas Pyper, Cynthia Buchko, 

Melissa Caulum Williams, Erin Keesecker, Cindi Wittlinger (paralegal – litigation 

support specialist), Cheryl Louis (paralegal) 

Practice Area Involved: Litigation 


WHD Successfully defends 

seven-figure insurance claim 

in the seventh circuit 

In Protective Life Ins. Co. v. B&K Enterprizes, LLC, et. al., WHD represented 

B&K in a contested dispute over the proceeds of a seven-figure insurance 

claim. Among others, the case raised novel questions of contract 

interpretation and reformation law, application of Limited Liability Company 

(LLC) law, creditors’ rights during and after an LLC ceased doing business, 

and the rights of a receiver under Wisconsin Statute Ch. 128. After 

successfully convincing the district court to rule in B&K’s favor on crossmotions 

for summary judgment, WHD successfully convinced the Seventh 

Circuit Court of Appeals that B&K was the sole party entitled to the sevenfigure 

insurance proceeds. 

Litigation Type: Contract interpretation 

Court: Seventh Circuit Court of Appeals 

Lead WHD Counsel: Ross Anderson and Patrick Harvey 

Principal WHD Team Members: Ross Anderson, Patrick Harvey, 

Daryl Diesing, Peter Sewell (paralegal) 

Practice Areas Involved: Litigation; Business Restructuring, 

Creditors’ Rights & Bankruptcy 

anderson 

Harvey 


WHD Wins Summary Judgment 

for its Client – Twice! 

mcintyre 

godar 

In December 2006, WHD client Saint-Gobain Performance Plastics Corp. 

(Saint-Gobain) terminated an employee, Kevin Kasten, under the company’s 

progressive discipline policy for time clock violations. Nearly a year later, 

Mr. Kasten filed a retaliation complaint under the Fair Labor Standards Act 

(FLSA), asserting he was fired for his complaints about alleged underpayment 

of wages due to time clock locations. The district court dismissed Kasten’s 

complaint on Saint-Gobain’s motion for summary judgment, holding an 

employee’s oral complaint was not protected conduct under the FLSA. 

Mr. Kasten appealed. The U.S. Court of Appeals for the Seventh Circuit affirmed 

Judge Barbara Crabb’s ruling that the anti-retaliation provision of the FLSA was 

not triggered by the oral complaint of an employee and that the FLSA required 

a written complaint. Mr. Kasten petitioned the U.S. Supreme Court and asked 

the court to consider the issue of whether a wage-related oral complaint by an 

employee is sufficient to trigger the anti-retaliation provision of the FLSA. The 

U.S. Supreme Court, by a 6-2 vote, reversed the Seventh Circuit and held that 

a reasonably clear oral complaint is sufficient to give an employer notice of a 

wage-related grievance and trigger the anti-retaliation provision of the FLSA. 

The case was then remanded to the U.S. District Court for the Western District 

of Wisconsin. WHD again filed a motion for summary judgment on a new 

issue created by the U.S. Supreme Court’s decision, and re-asserted the “no 

retaliation as a matter of law” argument since Mr. Kasten was terminated for 

policy violations, not his alleged wage-related complaints. Judge Crabb granted 

WHD’s second motion for summary judgment and held that the plaintiff failed to 

make a prima facie case of retaliation and dismissed the case. 

The victory nullified the risk of a potential $1 million verdict at trial, much of 

which would have been the plaintiff’s attorney fees had WHD lost on liability. 

Litigation Type: Employment litigation 

Court: U.S. District Court for the Western District of Wisconsin (remanded 

by U.S. Supreme Court) 

Lead WHD Counsel: Jeffrey McIntyre and Thomas Godar 

Principal WHD Team Members: Jeffrey McIntyre, Thomas Godar, 

Barbara Zabawa, Erin Keesecker, Cindi Wittlinger (paralegal – litigation 

support specialist), Cheryl Louis (paralegal) 

Practice Area Involved: Labor & Employment, Litigation 


WHD Successfully Defends 

Claims of Conspiracy, 

Tortious Interference with 

Contract and Defamation 

In Quad/Graphics, Inc. v. One2One Communications, LLC and Bruce 

Heverly, et al., WHD represented the former management group of Openfirst, 

LLC, a direct mail and billing statement production company which was 

acquired by Quad/Graphics, Inc. in 2006. In 2002, Openfirst had entered 

into a contractual arrangement with Bruce Heverly, who had contacts in the 

cable television services industry. Under the arrangement, Mr. Heverly would 

procure customer contracts for billing statement processing and printing to 

be performed by Openfirst in Milwaukee. In 2007, Openfirst terminated its 

relationship with Mr. Heverly and his company, One2One Communications, 

LLC, after it discovered that One2One Communications and Mr. Heverly were 

diverting business from Openfirst to a production facility in Bolingbrook, Ill., 

owned by One2One Communications. 

Quad/Graphics commenced suit against Bruce Heverly and One2One 

Communications, for, among other things, breach of contract, breach of 

fiduciary duty, and tortious interference with contract. Mr. Heverly and One2One 

Communications counterclaimed against Quad/Graphics, and filed a third-party 

complaint against the former management group of Openfirst, alleging claims 

for tortious interference with contract, defamation, and conspiracy to willfully 

or maliciously injure Mr. Heverly’s reputation, trade or business in violation of 

Wis. Stat. § 134.01. The third-party claims were based upon statements made 

by the management group to Openfirst’s customers to save their business 

after discovering that the third-party plaintiffs had been diverting business to 

the Bolingbrook facility. One2One Communications and Bruce Heverly sought 

compensatory and punitive damages against the management group for an 

amount in excess of $20 million. 

After a two-week jury trial presided over by Judge J.P. Stadtmueller in the 

U.S. District Court for the Eastern District of Wisconsin, the jury returned a 

verdict on the third-party claims entirely in favor of the management group 

and their former company, Openfirst, LLC. 

greer 

posnanski 

Litigation Type: Breach of contract 


Lead WHD Counsel: James Greer and Timothy Posnanski 

Principal WHD Team Members: James Greer, Timothy Posnanski, 

Pamela Price (paralegal) 

Practice Areas Involved: Litigation 


WHD Obtains Injunctive 

Relief Preserving 

Reinsurance Trust Fund 

Pending Arbitration Under 

Reinsurance Agreements 

Daugherty 

WHD successfully obtained preliminary injunctive relief pending arbitration in a 

dispute between its client, a reinsurer, and the defendant, a mortgage insurance 

company, where the defendant sought to withdraw funds from the trust 

established under reinsurance agreements between the parties, the effect of 

which would be to catastrophically affect the reinsurer’s net worth and viability. 

After injunctive relief was initially granted, the defendant agreed to submit to the 

arbitration process called for by the agreements, leaving the trust fund intact, 

and the dispute was later settled on terms favorable to WHD’s client. 

Litigation Type: Business/insurance litigation injunctive relief 


Lead WHD Counsel: Donald Daugherty 

Principal WHD Team Members: Donald Daugherty, Peter Sewell 

(paralegal), Pamela Price (paralegal) 

Practice Areas Involved: Business & Commercial Litigation 


whd invalidates a restrictive 

covenant NOT TO COMPETE in 

the accounting industry 

In Diversified Services of Wisconsin, Inc., et al. v. AJ Restaurant Accounting, 

LLC, et al., Dane County Circuit Court Case No. 09 CV 5958, several 

shareholders and other professionals departed from the diversified accounting 

firm of Suby, Von Haden & Associates, S.C. (SVA). The former employees, 

represented by WHD, all had employment agreements containing a restrictive 

covenant precluding post-employment competition with SVA. SVA claimed in 

excess of $3 million for alleged violations of the restrictive covenant. SVA also 

claimed that Wis. Stat. § 103.465, the Wisconsin statute requiring heightened 

scrutiny to restrictive covenants, was not applicable because the departing 

employees were high-level employees who negotiated their employment 

agreements. On a motion for summary judgment, the court ruled that the 

restrictive covenant not to compete in the employment agreements was 

governed by Wis. Stat. § 103.465 and further held that the restrictive covenant 

was overly broad and unenforceable as a matter of law. 

Litigation Type: Contract interpretation 

Court: Dane County Circuit Court 

Lead WHD Counsel: Thomas Pyper and Cynthia Buchko 

Principal WHD Team Members: Thomas Pyper, Cynthia Buchko, 

Melissa Caulum Williams, Erin Keesecker 

Practice Area Involved: Litigation 

pyper 

buchko 


WHD Obtains Directed Verdict 

at Close of Plaintiffs’ Evidence 

laffey 

THOMAS PAGELS 

WHD obtained a directed verdict at the close of the plaintiffs’ case for its client, 

a pass-through supplier of asbestos-containing pipe insulation. The plaintiffs 

argued that the decedent, the wife of a school custodian, was exposed to 

asbestos-containing products through laundering her husband’s work clothes. 

The case was tried to a judge who was new to the civil bench. Over seven days 

of trial, the plaintiffs argued that they were entitled to have their case decided 

by a jury, despite WHD’s presentation of school records that demonstrated that 

if the custodian was exposed to asbestos, the schools had not specified and 

used a product that WHD’s client did not sell. WHD argued that because the 

plaintiffs had not produced any credible evidence of the decendent’s exposure 

to its client’s products, it should be dismissed. The trial court agreed, dismissing 

the entire case and granting judgment in favor of the supplier. 

Litigation Type: Toxic tort litigation, product liability litigation 


Lead WHD Counsel: Jack Laffey and Sarah Thomas Pagels 

Principal WHD Team Members: Jack Laffey, Sarah Thomas Pagels, 

Tammy Klein (paralegal) 

Practice Areas Involved: Toxic Tort Litigation & Consultation 


WHD Defeats Federal Court 

Class Action Claim 

WHD obtained summary judgment in its East Coast client’s favor in a federal 

court class action involving allegations that the client’s employment practices 

violated various provisions of the Fair Credit Reporting Act. In winning on 

summary judgment, WHD convinced the district court to disregard seemingly 

on-point case law from another federal appellate court, as well as opinion 

letters from the Federal Trade Commission. 

Litigation Type: Class action 


Lead WHD Counsel: Frank Gumina and Patrick Harvey 

Principal WHD Team Members: Frank Gumina, Patrick Harvey, 

Steven Stanaszak, Peter Sewell (paralegal) 

Practice Areas Involved: Labor & Employment, Litigation 

gumina 

HARVEY 


WHD Obtains Summary 

Judgment for Local Festival: 

Court Applies Wisconsin’s 

Recreational Immunity Statute 

to Public Sidewalk 

schmidt 

WHD obtained summary judgment in favor of its client, a local ethnic festival. 

The plaintiffs, a married couple, had attended mass at the festival and 

departed shortly thereafter. They exited the festival and, in returning to their 

car, walked on a public sidewalk along the perimeter of the Maier Festival 

Grounds. About 10-15 minutes after leaving the festival and while walking 

on the sidewalk, an unexpected gust of wind blew over a large A-frame sign, 

which was owned and placed on the sidewalk by the festival to identify the 

entrance to the festival’s parking lot. The sign knocked the wife to the ground. 

She sustained severe injuries, incurring $155,000 in medical expenses and 

likely needing a knee replacement in the future as a result of the injuries. 

Under Wisconsin’s recreational immunity statute, a nonprofit organization (like 

the festival) that “owns, leases or occupies property” or has a recreational 

agreement with another owner of property does not owe a duty to keep the 

property safe for recreational activities; inspect the property; or warn of an 

unsafe condition, use, or activity on the property to persons entering the 

property to engage in a recreational activity. A person who is injured while 

engaging in a “recreational activity” on the owner’s property cannot hold 

the owner liable for the injury. WHD convinced the court that although the 

festival did not “own or lease” the public sidewalk, it “occupied” the sidewalk 

by virtue of placing the sign on it. Additionally, WHD persuaded the court 

that the couple was still engaged in a recreational activity at the time of the 

accident despite the fact that they had departed the festival because the act 

of returning to their vehicle was inextricably linked to the recreational activity of 

attending the festival. 

Litigation Type: Premises liability/personal injury 


Lead WHD Counsel: Pamela Schmidt 

Principal WHD Team Members: Pamela Schmidt, Barbara Zabawa, 

Nida Shakir (summer associate), Pamela Price (paralegal) 

Practice Areas Involved: Personal Injury Defense 


WHD Obtains Summary 

Judgment in Personal Injury 

Case Arising from Loading/ 

Unloading Operations 

WHD received a summary judgment decision in favor of its client, a 

transportation service provider. The plaintiff, one of WHD’s client’s employees, 

was seriously injured as he made a delivery. He had backed up his truck to 

the loading dock and was standing off to the side near the bottom of the dock 

when an employee of the company receiving the delivery ran over his foot 

with a forklift. The foot, nearly lost during the incident, ballooned to almost 

twice the size as his other foot. The plaintiff sued the company receiving the 

delivery and two of its employees. WHD’s client was named as a defendant 

because it had a worker’s compensation lien. The delivery customers, its 

employees and their insurer cross-claimed against WHD’s client pursuant 

to Wis. Stat. § 194.41(1) and the loaned employee doctrine. Wis. Stat. § 

194.41(1) extends an obligation for certain motor carriers to have insurance 

coverage for loading and unloading operations and to third parties involved in 

the process of loading/unloading. Under Wis. Stat. § 194.41(1), WHD’s client 

could have been held liable for the plaintiff’s injuries, notwithstanding worker’s 

compensation exclusivity, because it was allegedly engaged in loading/ 

unloading operations at the time of the accident. To complicate the case, 

WHD’s client originally failed to timely answer. 

Ultimately, WHD obtained relief from the default, and prevailed on summary 

judgment by arguing that the transportation company fell within a narrow 

exception to Wis. Stat. § 194.41(1), getting the cross-claim dismissed. In 

particular, WHD established that its client was not liable because the requirements 

of Wis. Stat. § 194.41(1) did not apply to “a motor carrier that is registered 

by another state under a single-state or unified carrier registration system 

consistent with the standards established by the federal administrative code.” 

Additionally, WHD obtained an award of taxable costs and recovered the worker’s 

compensation lien in full. There is a cushion for any future medical expenses. 

schmidt 

laffey 

Litigation Type: Personal injury defense 

Court: Outagamie County Circuit Court 

Lead WHD Counsel: Pamela Schmidt and Jack Laffey 

Principal WHD Team Members: Pamela Schmidt, Jack Laffey 

Practice Areas Involved: Transportation Litigation & Compliance, 

Worker’s Compensation 


WHD Obtains Defense Verdict 

jones 

posnanski 

In Michael Kingsley v. Stan Hendrickson et al., WHD successfully represented 

the current Administrator of the Monroe County Jail, and a Monroe County 

Sheriff’s Deputy at a trial in a federal civil rights lawsuit in the U.S. District 

Court for the Western District of Wisconsin. The plaintiff initially brought 

claims under 42 U.S.C. § 1983 for the alleged denial of due process and 

use of excessive force against several Monroe County Sheriff’s Department 

employees arising out of the use of a Taser on the plaintiff when he was 

incarcerated in the Monroe County Jail. 

After the court granted summary judgment to the defendants on the due 

process claims and dismissed a number of the defendants, the court 

appointed three attorneys at a national law firm to represent the plaintiff 

through trial on his remaining excessive force claims. After a three-day trial 

before Judge Barbara Crabb, an eight-person jury returned a unanimous 

verdict in favor of the remaining defendants. 

Litigation Type: Civil rights litigation 

Court: U.S. District Court for the Western District of Wisconsin 

Lead WHD Counsel: Andrew Jones and Timothy Posnanski 

Principal WHD Team Members: Andrew Jones, Timothy Posnanski, 

Peter Sewell (paralegal) 

Practice Areas Involved: Municipal Law & Civil Rights 


WHD Dismisses Counterclaims 

Then Prevails at Trial 

In Nationstar Mortgage, LLC v. Calvin C. Calkins, et al., WHD represented 

Nationstar Mortgage, LLC in a consumer foreclosure case. The borrower 

initially asserted eight separate counterclaims, all of which were dismissed on 

motions before trial. At trial, the borrower refused to verify his signature on the 

loan documents and maintained that the promissory note held by Nationstar 

Mortgage was a photocopy. At trial, the borrower insisted he could not verify 

his own signature and ultimately claimed that the endorsements on the 

promissory note were fraudulent. 

In a bench trial before Judge Richard Niess in Dane County Circuit Court, 

WHD prevailed after offering the testimony of an expert forensic document 

examiner, who opined that the signature on the note was an original and 

the endorsements on the allonge to the promissory note were also original. 

The court granted judgment in favor of Nationstar Mortgage, holding that 

Nationstar Mortgage clearly held the original note, was entitled to enforce the 

note, and to foreclose upon the property. 

posnanski 

NOWAKOWSKI 

Litigation Type: Real estate, consumer financial services litigation, 

lender liability 

Court: Dane County Circuit Court 

Lead WHD Counsel: Timothy Posnanski and Kenneth Nowakowski 

Principal WHD Team Members: Timothy Posnanski, Kenneth 

Nowakowski, Edward Heiser, Peter Sewell (paralegal), Debra Prim (paralegal) 

Practice Areas Involved: Litigation, Consumer Financial Services 


WHD Successfully Obtains and 

Defends Grant of Summary 

Judgment on Grounds That 

Plaintiff Offers No Credible 

Exposure Evidence 

laffey 

WHD convinced the appellate court to uphold the dismissal of its client, a 

pass-through supplier of asbestos-containing pipe insulation, on summary 

judgment. The plaintiff alleged that her deceased husband, a carpenter, was 

exposed to asbestos-containing products while performing construction 

work at more than 50 job sites in Milwaukee. WHD successfully argued that 

the plaintiff’s evidence that the decedent was exposed to any asbestoscontaining 

products supplied by its client was speculative, and the trial court 

granted summary judgment. The plaintiff appealed. The appellate court 

affirmed the grant of summary judgment, agreeing with WHD that the plaintiff 

had no credible exposure evidence. 

Litigation Type: Toxic tort litigation, product liability litigation 

Court: Milwaukee County Circuit Court, District I Court of Appeals 

Lead WHD Counsel: Jack Laffey 

Principal WHD Team Members: Jack Laffey, Sarah Thomas Pagels, 

Kristina Lemanski, Tammy Klein (paralegal) 

Practice Areas Involved: Toxic Tort Litigation & Consultation 


HONORS & 

ACCOLADES 


Ross A. Anderson was named the Best Lawyers’ 2013 Milwaukee Litigation – 

Real Estate “Lawyer of the Year.” Only a single lawyer in each designated area of 

practice in each community is honored as “Lawyer of the Year.” 

Additionally, the following WHD litigators were selected by their peers for inclusion 

in The Best Lawyers in America ® for 2013: 

• Ross A. Anderson, Commercial Litigation; Litigation–Real Estate; 

Litigation–Securities 

• Charles H. Bohl, Civil Rights Law 

• Cynthia L. Buchko, Eminent Domain and Condemnation Law; 

Land Use & Zoning Law 

• Gina Carter, Litigation–Patent 

• Robert E. Dallman, Litigation & Controversy–Tax 

• Donald A. Daugherty, Commercial Litigation 

• Daryl L. Diesing, Litigation–Bankruptcy 

• Thomas P. Godar, Litigation–Labor & Employment 

• Philip J. Halley, Litigation–Trusts & Estates 

• David C. Hertel, Litigation–Labor & Employment 

• Patrick B. Howell, Litigation–Bankruptcy 

• Jerard J. Jensen, Litigation–Banking & Finance 

• Andrew A. Jones, Commercial Litigation; Litigation–Labor & Employment 

• Myron L. Joseph, Litigation & Controversy–Tax 

• Daniel J. La Fave, Product Liability Litigation–Defendants 

• Richard J. Lewandowski, Litigation–Environmental 

• Jeffrey J. Liotta, Commercial Litigation; Litigation–Real Estate 

• Francis H. LoCoco, Mass Tort Litigation/Class Actions–Defendants; 

Personal Injury Litigation–Defendants 

• Ann M. Maher, Commercial Litigation; Litigation–Real Estate 

• Daniel J. Miske, Commercial Litigation; Litigation–Real Estate 

• Kenneth R. Nowakowski, Commercial Litigation; Litigation–Banking & 

Finance; Litigation–Patent 

• Tamara Hayes O’Brien, Commercial Litigation 

• Douglas A. Pessefall, Litigation & Controversy–Tax 

• Joseph A. Pickart, Litigation & Controversy–Tax 

• Thomas M. Pyper, Commercial Litigation; Litigation–Construction; Litigation– 

Environmental; Litigation–Regulatory Enforcement (SEC, Telecom, Energy) 

• Jay R. Starrett, Commercial Litigation 


The following WHD litigators were named 2012 Wisconsin Super Lawyers by Thomson 

Reuters. Only 5% of the lawyers in the state are recognized as Super Lawyers: 

• Ross A. Anderson, Business Litigation 

• Donald A. Daugherty, Business Litigation 

• Daniel J. La Fave, Personal Injury Defense: Products 

• Jack Laffey, Personal Injury Defense: Products 

• Lisa M. Lawless, Business Litigation 

• Jeffrey J. Liotta, Business Litigation 

• Richard J. Lewandowski, Environmental Litigation 

• Francis H. LoCoco, Personal Injury Defense: Products 

• Ann M. Maher, Business Litigation 

• Thomas M. Pyper, Business Litigation 

Wisconsin Super Lawyers ® also named WHD as the Top Large Law Firm for 

Litigation in Wisconsin for 2011. 

The following WHD litigators were named 2012 Rising Stars by Thomson Reuters. 

This honor recognizes the top up-and-coming attorneys in the state–those who are 

40 years or younger, or who have been practicing for 10 years or less. No more than 

2.5% of lawyers in the state are named to this list: 

• Cynthia L. Buchko, Business Litigation 

• Melissa Caulum Williams, Business Litigation 

• Thomas Gonzalez, Personal Injury Defense: General 

• John W. Halpin, Civil Litigation Defense 

• Patrick M. Harvey, Business Litigation 

• Timothy H. Posnanski, Business Litigation 

• Sarah E. Thomas Pagels, Personal Injury Defense: Products 


The following litigation practice areas were included in the metropolitan and national 

rankings on the U.S. News–Best Lawyers “Best Law Firms” list for 2013: 

• Civil Rights Law 

• Commercial Litigation 

• Litigation–Bankruptcy 

• Litigation–Construction 

• Litigation–Environmental 

• Litigation–Labor & Employment 

• Litigation–Patent 

• Litigation–Real Estate 

• Litigation–Regulatory Enforcement (SEC, Telecom, Energy) 

• Litigation–Tax 

• Mass Tort Litigation/Class Actions–Defendants 

• Personal Injury Litigation–Defendants 

• Product Liability Litigation–Defendants 


WHD’s litigation practice (intellectual property and general commercial) was ranked 

among the best in Wisconsin by Chambers and Partners. 

• Chambers recognizes WHD’s Litigation practice for its litigators’ trial 

experience at state and federal courts, as well as for their being “well versed 

in a wide variety of contentious matters, including employment, product 

liability, IP and real estate disputes.” Ann Maher is a business litigation 

specialist who concentrates on antitrust, dealership and distribution disputes. 

• Chambers praises WHD’s Intellectual Property practice for the group’s 

responsiveness and vast patent litigation capabilities. Gina Carter is noted for 

the manner in which she “lends creativity to her approach to matters.” 

IN THE LAW 

Wisconsin Law Journal selected Thomas M. Pyper as a 2013 recipient of its Leaders 

in the Law Award, which recognizes lawyers and judges who have demonstrated 

their outstanding leadership, vision and legal expertise in Wisconsin’s law community. 

Wisconsin Law Journal named Sarah Thomas Pagels and Barbara J. Zabawa 2011 

Up and Coming Lawyers, which recognizes lawyers who have been practicing 

eight years or less, have successfully achieved legal outcomes early in their career, 

have significantly contributed to their communities, and have demonstrated 

exceptional leadership. 

Benchmark Litigation 

Benchmark Litigation named Gina Carter to its Top 250 Women in Litigation list. Top 

250 Women in Litigation is the first magazine devoted to honoring the achievements 

and issues facing female trial lawyers in the United States. The female litigators were 

selected on the basis of peer reviews conducted for the 2012 edition of Benchmark 

Litigation, the parent publication of Top 250 Women in Litigation. Female local litigation 

stars from each of the 50 states plus the District of Columbia are listed in this guide. 


M Magazine listed Rebecca Grassl Bradley as one of Milwaukee’s Highest-Ranked 

Internet and Litigation attorneys for 2012. 

WHD is recognized by Apple Inc. as a 2013 Go-To Law Firm for Intellectual 

Property Litigation, according to ALM, an integrated media company. WHD is 

one of an elite group of firms that delivers exceptional work for the in-house legal 

departments at the Fortune 500. 

Governor’s judicial selection 

advisory committee 

Donald A. Daugherty was appointed to the Governor’s Judicial Selection Advisory 

Committee, which helps to guide the governor’s judicial selection process and 

ensure that judges of the highest caliber who share a commitment to the rule of 

law are selected to serve Wisconsin. 

MILWAUKEE BAR ASSOCIATION 

judicial selection advisory 

committee 

Karen L. Tidwall was elected to the Milwaukee Bar Association Judicial Selection 

Advisory Committee. 


LITIGATION 

ATTORNEYS & 

PARALEGALS 


PRACTICE GROUP LEADERS 

Ross A. Anderson Cynthia L. Buchko Francis H. LoCoco 


ATTORNEYS 

Gabrielle Baumann Adams 

Rebecca Grassl Bradley 

Robert E. Dallman 

Thomas J. Arenz 

Gina Carter 

Donald A. Daugherty 

Bruce G. Arnold 

Melissa Caulum Williams 

Daryl L. Diesing 

Charles H. Bohl 

Paul D. Cranley 

Benjamin W. Dyer 


Thomas C. Ewing 

James W. Greer 

Patrick M. Harvey 

Melinda S. Giftos 

Frank A. Gumina 

Edward J. Heiser 

Thomas P. Godar 

Philip J. Halley 

Thomas P. Heneghan 

Thomas Gonzalez 

John W. Halpin 

David C. Hertel 


Patrick B. Howell 

Erin M. Keesecker 

Lisa M. Lawless 

Jerard J. Jensen 

Daniel J. La Fave 

Kristina C. Lemanski 

Andrew A. Jones 

Jack Laffey 

Richard J. Lewandowski 

Myron L. Joseph 

Michael J. Lauer 

Jeffrey J. Liotta 


Ann M. Maher 

Kenneth R. Nowakowski 

Gary R. Plotecher 

Jeffrey A. McIntyre 

Tamara Hayes O’Brien 

Timothy H. Posnanski 

Eric J. Meier 

Douglas A. Pessefall 

Benjamin W. Proctor 

Daniel J. Miske 

Joseph A. Pickart 

Thomas M. Pyper 


Pamela M. Schmidt 

Karen L. Tidwall 

Steven F. Stanaszak 

John B. Tuffnell 

Jay R. Starrett 

Barbara J. Zabawa 

Sarah E. Thomas Pagels 


PARALEGALS 

Cecelia M. Campbell 

Cheryl A. Louis 

Peter F. Sewell 

Lynn M. Gompper 

Pamela J. Price 

Cindi M. Wittlinger 

Rachel J. Halverson 

Debra J. Prim 

Tammy L. Klein 

Lisa M. Rave 


MILWAUKEE OFFICE 

555 East Wells Street, Suite 1900 

Milwaukee, WI 53202-3819 

414.273.2100 

MADISON OFFICE 

33 East Main Street, Suite 300 

P.O. Box 1379 

Madison, WI 53701-1379 

608.255.4440 

www.whdlaw.com 

© 2012 Whyte Hirschboeck Dudek S.C. All rights reserved.

LITIGATIONRESULTS - Whyte Hirschboeck Dudek SC

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