Sedgwick County, Kansas

From the Wichita Eagle of March 3, 2006

He gets shot, he sues, he pays

The jury in dueling civil lawsuits decides that the man who shot another man was the one who was wronged.

A mechanic wounded by a gunshot should pay the man who shot him at least $250,000.

That was the verdict Thursday of a Sedgwick County jury, following legal battles that have paraded through both the criminal and civil district courts.

The lawsuit ended nearly 18 months after a jury in a criminal trial found that Dan Herpolsheimer of Mulvane shot Keith McGinley in self-defense.

McGinley sued Herpolsheimer, who responded with a counterclaim for battery and trespassing.

Now, McGinley stands to lose another $500,000, because Thursday's verdict allows Herpolsheimer to seek punitive damages, which can equal up to three times a jury award.

Russell Mills, McGinley's lawyer, said he'll ask Sedgwick County District Judge Eric Yost to strike the verdict and give him a new trial.

"We recognized this was an unusual verdict, finding against a man who was shot," said presiding juror Pamela Clancy. "But we really felt like Dan was the victim here."

Clancy, herself a lawyer, said McGinley became argumentative during his testimony and changed details of his story under cross-examination by lawyer Kurt Kerns. Kerns represented Herpolsheimer in both the criminal and civil trials.

Herpolsheimer, meanwhile, told the same story he'd given to police after the shooting in October 2003:

In a drunken rage, McGinley attacked Herpolsheimer. Herpolsheimer ordered McGinley out of his home. McGinley pulled a knife, causing Herpolsheimer to shoot him with a .357 Magnum.

"Dan's story rang true," Clancy said.

Herpolsheimer, 53, asked for $250,000 in pain, suffering and mental anguish -- the maximum allowed by law.

"I asked for justice," Kerns said after the verdict. "My client has suffered damages in his heart, his spirit and his mind."

The jury calculated $25,000 in past damages and $225,000 in future damages for the award.

Said Clancy: "We figured Dan (53) had a life expectancy of 26 more years. About 10 percent of his life was three years ago. That left $225,000 for the rest of his life."

The jury decided the seriousness of McGinley's attack called for punitive damages.