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Legal Champions- Michael Foster & Phillip Zeeck


michael-foster-and-phillip-zeeckMissouri prisons are set to go smoke-free in April, thanks to the work of Kansas City attorneys Michael Foster and Phillip Zeeck.

In a pro bono case, the Polsinelli attorneys represented Ecclesiastical Denzel Washington, also known as Willie Simmons, in his suit alleging he was subjected to secondhand smoke while incarcerated at Crossroads Correctional Center in Cameron.

Washington has asthma and alleged prison officials were indifferent to his medical needs and failed to take reasonable measures to help him.

At trial in April, a jury awarded him $40,000 in damages and $71,000 in punitive damages.

U.S. District Judge Nanette K. Laughrey later ordered the Department of Corrections to “prohibit the sale, possession, and consumption of all tobacco products” in correctional buildings and on their grounds.

Washington’s trial was the first time the pair had an opportunity to be lead counsel for a case.

Foster said it was “a phenomenal result” for his client, who is serving two consecutive sentences of life without parole for two murders committed in St. Louis in 1987.

“I can’t imagine what you have to live for when you’re in prison the rest of your life, but it has to feel good for him,” he said.

Zeeck agreed, adding it’s also a good result for other prisoners, corrections officers and taxpayers.

“This was a real liability risk for the Missouri Department of Corrections,” Zeeck said. “The department has a constitutional obligation to look out for the health of their inmates and in this specific case, they were failing to meet the obligation.”

Washington was initially a pro se litigant. Foster and Zeeck were appointed to the case after being approached by Russ Jones, chairman of Polsinelli’s commercial litigation practice group. They jumped at the opportunity to get some trial experience.

When they came on board, the case had made it past summary judgment. The pair reopened discovery, took depositions and went to trial.

Both said the case was a longshot at first. One particular hurdle in trying the case before a jury was making them care about their client.

“It’s very difficult to convince a jury that someone convicted of violent crimes, who appears in shackles, should be compensated for any injury,” Zeeck said. “I think one of the reasons we were successful ultimately was Polsinelli wasn’t afraid to throw the kitchen sink at this case.”

The two focused their energy on Washington’s rights.

“He’s in jail for the rest of his life, but that doesn’t mean that he’s subjected to secondhand smoke the rest of his life, that’s not right,” Foster said.

The case showed the importance of pro bono work, Zeeck said.

At the end of the trial, he said Laughrey told the jury the judicial system only works if all parties have representation.

“Folks like Mr. Washington need representation and they need good representation,” Zeeck said. “Without representation the whole system is at risk.”

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