Milwaukee man’s ‘undetermined’ death from fall has widow, family at odds
When police arrived at James Kostusak’s house on Jan. 11, 2020, they found him sprawled on the basement floor, bleeding from the head.
Susan, his wife of about 14 months, said he’d come home drunk and fallen down the stairs nearly an hour earlier. She said she hadn’t gone down to check on him because she feared he might hurt her. Paramedics came and took Kostusak, 54, to the hospital, where he died about two months later from complications of “blunt force trauma to the head,” according to the Milwaukee County Medical Examiner’s report.
The same report lists the manner of death as “undetermined.”
It might have been an accident or it might have been homicide. Kostusak’s family believes it was the latter, blame Susan and hope to prove enough in probate court to at least prevent her from inheriting James’ $1 million estate, and maybe convince authorities to file criminal charges.
Milwaukee police spokesman Sgt. Efrain Cornejo said the department “is not currently investigating this incident as his death was not ruled as a homicide; however, if there is new evidence that could determine foul play was involved, we can investigate further.”
Kostusak’s brother and mother objected to Susan serving as personal representative of James’ estate, and his mother filed a wrongful death lawsuit against Susan in April. The case has since been consolidated into the probate case.
Because James died without a will, his entire estate would go to Susan, unless she is found to have caused his death. In that case, it would go to his mother.
“One of the main reasons we’re pursuing this,” said Glenn Waldron, Kostusak’s brother-in-law, “is that we feel that throughout the course, lots of things weren’t done properly by several agencies involved. Along the way, lots of protocols weren’t followed. Not out of malice ... but because of that, there’s been no closure.”
“It behooves us to look out for Jim, his memory and his mother, to do all that we can to show he was a good and honest person,” he said. “We’re not going to do nothing.”
First relationship
According to his obituary and brother Tim, James Kostusak graduated high school in Wisconsin Rapids and became a union electrician. Around 1996, he moved to Milwaukee and later became the resident master electrician at the Wisconsin Center.
Tim Kostusak and his wife, Kim, said James loved his job, rarely took days off and frequently worked weekends for events at the center. He had been eagerly looking forward to helping stage the 2020 Democratic National Convention, which was later held virtually because of the coronavirus pandemic.
James was also an avid sailor, gardener and outdoor cook. He had close friends through the Milwaukee Sailing Center who did not respond to messages sent through the center. Tim said his brother would go on weekend sailing trips around the state with his friend’s boat and race smaller boats at the sailing center during the week.
Susan was his first serious relationship, according to his brother Tim. He said the couple met at the Wisconsin Center, where Susan worked in security. They married in November 2018. She later worked at a hospital cafeteria.
She didn’t drive, and Tim said his brother left their birthday get-together on Jan. 11 to pick Susan up from the bus stop.
Tim said his brother only drank beer that afternoon and wasn’t drunk when he left Westallion Brewing Co. after a couple of hours of celebrating Tim’s birthday.
He doesn’t believe Susan’s statement to Kim over the phone that James had drunk a bottle of whiskey, because, he said, his brother didn’t drink whiskey.
Susan Kostusak, 54, and her attorney, Erin Strohbehn, declined to talk with a reporter.
Though it appears Kim, Tim’s wife, was the first person Susan called about James’ apparent fall, Kim said she was not particularly close with Susan, even before the incident, and didn’t know a lot about her background.
Yvonne also objected to Susan serving as personal representative, because she couldn’t serve in that role or inherit his estate if she was later found responsible for his death, under Wisconsin’s so-called slayer statute. Susan objected, saying that more than a year after James’ death, “It is clear a referral (from police to prosecutors about a crime) is not imminent,” and that the only “evidence” the family has raised is James’ statements to nurses while brain injured and under heavy medication.
Severe head injuries
According to a medical examiner’s report, when paramedics arrived at Kostusak’s house, he was lying near the foot of the carpeted basement stairs, in a pool of blood. They noted he was bleeding from his ears and had a cut on the back of his head.
He was awake when he first got to Froedtert Hospital but belligerent. His blood-alcohol level was 0.139, well above the 0.08 level at which drivers are presumed to be impaired.
A CT scan of his head revealed “a right-sided subdural hematoma, bilateral hemorrhagic contusions, a traumatic subarachnoid hemorrhage, nondisplaced parietal bone fracture, nondisplaced sphenoid sinus fracture, a cerebrospinal fluid leak from the right ear canal, brain compression, and encephalopathy.” Another scan showed a spinal fracture.
About a month later, after James had undergone several head surgeries, a nurse doing an assessment asked him what brought him to the hospital. He said, “My wife, she hit me in the head with a baseball bat.” The nurse asked for more explanation, but he had become unresponsive. He frequently went in and out of lucidity during his time in the hospital, according to the medical examiner’s report.
The next day, he told another nurse his wife had pushed him down the stairs. Hospital officials notified police, and tensions grew between Kostusak’s wife and the rest of his family. A legal guardian was appointed for James, who made the decision to put James in hospice care a couple of weeks before his death.
According to the medical examiner’s report, Susan wanted to cremate James after his death; the family opposed cremation and wanted an autopsy. Milwaukee police later requested an autopsy, which resulted in the undetermined manner of death.
A mother’s wrongful death lawsuit
Yvonne Kostusak’s wrongful death lawsuit, filed in April, claimed that Susan’s negligence led to James’ death, and that the damages for his pain and suffering, while he was still alive, should flow to her. But Susan’s attorney argued that only children and a deceased person’s estate — not a parent — can bring a wrongful death case, and that James’ own negligence caused his death.
Any claims for James’ damages while he was alive belong to insurance companies, Susan’s lawyer says, if they paid death benefits. The attorney for James’ mother said she could not discuss whether any life insurance benefits were paid.
That wrongful death case has now been consolidated with the probate of James’ estate. When that matter was first opened last year, Susan was the personal representative of the estate. Yvonne, James’ mother, filed emergency court papers seeking to block James’ cremation, citing the family’s preference for burial, the short length of his marriage and the then-pending investigation and possible autopsy.
Yvonne also objected to Susan serving as personal representative, because she couldn’t serve in that role or inherit his estate if she was later found responsible for his death, under Wisconsin’s so-called slayer statute. She suggested appointing a special administrator to oversee and protect the estate’s assets and that she be named a person of interest since, if Susan were found responsible for James’ death, Yvonne would inherit his estate.
Susan objected, saying that mere speculation that the slayer statute might apply shouldn’t give Yvonne a legal cause of action, and that more than a year after James’ death, “It is clear a referral (from police to prosecutors about a crime) is not imminent,” and that the only “evidence” the family has raised is James’ statements to nurses while brain injured and under heavy medication.
The family’s continued insistence that Susan caused her husband’s death can’t overcome “a paucity of facts,” her attorney wrote.
Eventually, Circuit Judge Paul Van Grunsven agreed to appoint a special administrator for the estate, with all the authority of a personal representative, except that he could make no distributions to heirs without court approval.
The estate is worth about $1 million in investments, James’ union pension and a house. The latest dispute is about whether Susan should have immediate access to about a quarter of the estate, as marital assets that would pass to her automatically upon her spouse’s death.
Yvonne’s lawyer has challenged that, and wants more time to investigate what assets truly were marital or should be considered part of James’ estate.
The parties are scheduled for a hearing later in August on Susan Kostusak’s motion to dismiss the wrongful death suit and release her current portion of the estate property.