State’s high court to hear lawsuit case against area judge

Attorneys for Phillip Allen believe he should be able to give his deposition over the phone and believe strongly enough to take the case to the Missouri Supreme Court.

Allen is suing the city of Cape Girardeau because of injuries he suffered while riding his bicycle on a street.

In April 2014, he was cycling west on Independence Street when a wheel of his bicycle was caught in the groove of a bar drainage grate, and he was flung to the ground.

Cape Girardeau attorney Al Spradling III said Allen suffered a broken wrist in the crash and needed surgery, according to court records.

In Allen’s petition for damages, he listed special medical damages totaling $59,086, another $1,855 in property damages and $686 in lost wages from the injury. The petition was filed April 30, and because it was more than $25,000, it went before a circuit-court judge, Michael Gardner.

Between the accident and Jan. 7, Allen moved to Gainesville, Florida.

Allen’s lawyer filed a motion Jan. 18 arguing Allen should be able to give a deposition in the case over the phone. They cited a portion of Missouri civil rule of civil procedures 57.03 that states, “A party may attend a deposition by telephone.”

“Requiring plaintiff to travel to Cape Girardeau from Florida to appear for a deposition where plaintiff’s appearance is expressly allowed by telephone places undue hardship upon the plaintiff and is legally unnecessary,” Adam Gohn wrote in the motion to quash deposition notice.

Gardner denied that motion and wrote in an order the deposition be rescheduled when the plaintiff could buy a reasonably priced airplane ticket, and the court expected the parties to work together to select a mutually agreeable date.

Gohn and partner Gordon Glaus responded by filing a writ of prohibition to the Missouri Supreme Court on Feb. 25 against Gardner that would prohibit the judge from ordering Allen to appear in person.

The writ of prohibition starts with the lawyers claiming Gardner exceeded his jurisdiction and authority and abused his discretion.

Gardner said he could not talk about a pending case.

Spradling cannot ever remember a deposition by telephone being argued in Missouri courts.

Spradling argued a telephone deposition is an option of the court, not a right of the plaintiff under the civil-procedure rules.

Normally, telephone depositions are granted in special cases — for instance, the plaintiff is injured and cannot make it to court. He said a defendant usually cannot be made to testify in person.

“I have no reason why Mr. Allen won’t come; no one has given me a good reason,” Spradling said. “It’s a bizarre interpretation of the rule, in my opinion.”

The Missouri Supreme Court has yet to schedule the case but has set a deadline for suggestions in opposition of March 7. Spradling said if the state Supreme Court rules in Allen’s favor, he would fly to Florida to depose him.

The city of Cape Girardeau replaced the grates on Independence Street shortly after the accident. City engineer Casey Brunke said the original grates were installed by the Missouri Department of Transportation when it oversaw a joint street project more than 20 years ago. The new grates run perpendicular to the street.

“We found some grates that did not meet the current standards,” Brunke said.

Spradling said the city replacing grates could not be used by Allen’s attorneys in the case. He said he is not sure whether MoDOT could be held liable for the grates.

A trial setting in the Allen v. Cape Girardeau case is set for 9 a.m. March 14.

“Post-accident remediation is not an admission of liability,” Spradling said.

Neither Gohn nor Glaus could be reached for comment.

bkleine@semissourian.com

(573) 388-3644

Pertinent address:

Independence Street, Cape Girardeau, Mo.