Chicago Personal Injury Lawyer Blog

A recent decision by an Illinois Appellate Court continued the debate regarding the interpretation of the construction statute of repose (Illinois Code of Civil Procedure, Section 13-214(b)).

The construction statute of repose states:

No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission.

The statute seeks to protect construction parties from having to defend against stale claims. Since its inception the statute has been a balancing act between the rights of the injured party and the rights of the party responsible for the construction. Illinois courts generally have limited the statute to apply to claims of construction or improvement to real property. However, where some courts differ is on claims brought as to duties of maintenance and inspection.

In Ryan v. Commonwealth Edison Co., Ryan, an electrician, was injured when a circuit breaker exploded. He claimed that ComEd was responsible for the electrical current flowing into the building and that the severity of his accident was increased by ComEd's negligence regarding its ongoing maintenance duties. ComEd argued that the claim should be barred under the statute because the injury resulted from design flaws in the power system when it was installed 20 years ago, which would place it well outside the 10 year limit imposed by the statute. ComEd's motion for summary judgment was granted, but the 1st District Appellate Court, Sixth Division, overturned this decision stating that the injury was the result of poor maintenance and inspection rather than design flaws in the original power system and therefore the statute does not apply.

This circuit's decision focuses on the continuing acts related to the product, rather than the date of the original design of the product. That is significant in that the court looked beyond a hard and fast date of design and instead examined the entire fact background of the power system. The ruling is fair and just and may lead to decisions based on the facts, rather on a certain date of installation, design, sale or manufacture of a product. Motions for summary judgment will be denied where genuine issues of material fact are open for a jury to decide.

Continue reading " Illinois Appellate Courts Disagree on Scope of Construction Statute of Repose " »

The Illinois Supreme Court handed down a controversial decision interpreting the Illinois Wrongful Death Act. The Illinois wrongful death case, Williams v. Manchester, 2008 WL 879036 (Ill Sup Ct), involved a pregnant woman, the plaintiff, Michelle Williams, who was 10.5 weeks pregnant when she was seriously injured in a car crash in Chicago.

Because of her injuries, doctors advised that her own health was at risk if the uninjured unborn child was not aborted. The legal issue was whether or not Ms. Williams could bring an Illinois wrongful death suit against the wrongdoer for the death of her child. The court held that she may not because the crash did not injure the child. The reasoning went on to state that if the unborn child had survived, there would be no case to bring for lack of injuries (damages).

The Illinois wrongful death case filed in the circuit court ended on summary judgment in favor the defendant. A divided panel of the Illinois Appellate Court reversed the lower court decision giving rise to the appeal accepted by the Illinois Supreme Court.

Continue reading " Illinois Wrongful Death Act Interpreted by Illinois Supreme Court to Deny Recovery Of Unborn Child Aborted After Serious Injury To Mother " »

Loyola University Medical Center was held liable by a Cook County jury in 2006 for "institutional negligence" involving the unsuccessful heart transplantation attempt of Carl Longnecker, the plaintiff decedent. The hospital was held liable for not ensuring that a doctor understood his role on the heart transplant team. At the same time the jury found that the same doctor, also named as a defendant, was not guilty of Illinois medical negligence.

Longnecker had been waiting for a transplant for 14 months when he was notified that a heart had been found for him. Dr. Parvathaneni was responsible for obtaining that heart and getting it to Loyola, where the transplant would be performed. According to surgeons at Loyola, Parvathaneni played a crucial role in the process in that they relied on his inspection and evaluation when they accepted and used the heart. Dr. Parvathenani testified that he was unaware that he needed to perform a detailed assessment of the heart, but just was responsible for getting it to Loyola quickly. So when it became evident that the heart had significant disease and allegedly never functioned after its removal the question was who was responsible.

The transplant surgeons decided to go ahead with the surgery, stating that they needed to go ahead with the transplant of the diseased heart because Longnecker's own heart had already been removed. However, it should also be noted that the doctors could have used an artificial heart in this case. Longnecker never regained consciousness after the surgery and died several days later.

Continue reading " Hospital Liability in Cook County Jury Verdict Upheld Against Loyola University Medical Center In Heart Transplant Case " »

On Sunday, June 22, 2008, I (Robert Kreisman) gathered with thousands of people to fight against hate in all forms. The 9th annual Race Against Hate is a race in memory of Ricky Byrdsong, a former Northwestern University basketball coach. The 5k course loops along Northwestern University's campus and Evanston's lakefront, starting and finishing on Long Field.

Early Sunday, the skies darkened and it rained briefly, delaying the start of the race for 30 minutes. But the rain did not dampen the spirits of those gathered for this annual event. I loved the juxtaposition of adults sweating through the 5k lakefront course and finishing to be rewarded with the sight of kids poised at the start line waiting for their opportunity to show their stuff in the follow up kids' race. (See the photo below showing the start of the kids' race.)

We enjoyed seeing neighbors and friends who both participated and rooted for those who ran or walked. It was an invigorating experience, without losing the connection of the root of the event, the tragic and senseless murder of an innocent man, Ricky Birdsong, because of the color of his skin.

Continue reading " Chicago Injury Lawyer Robert Kreisman Participates in Evanston's Race Against Hate " »

The $2.5 million Illinois wrongful death verdict handed down by a Cook County jury last week was not only the largest in Cook County for a person 90 years or older, but now stands as the largest in Illinois for anyone of that age group that has been injured or killed.

Ms. Grochis was struck by a car crossing the street at Grand Avenue and 73rd Street in Elmwood Park, IL. Because she survived after being dragged 25 feet by the defendant's car, she was awarded $1 million for pain and suffering. The jury also awarded an additional $1.5 million for the wrongful death of Ms. Grochis, who lived independently, still handling her own shopping and errands, and used public transportation to get around. She was survived by two children ages 56 and 52, along with several grandchildren and great-grandchildren.

This Cook County wrongful death verdict is reflective of a change in jury attitudes. There had been a tendency among jurors to perhaps discount or hold down the verdict to much lower levels because of the advanced years of the plaintiff. Typically when there has been either advanced years or a perceived life expectancy reduction the verdicts are on a significantly lower scale then the Grochis verdict.

Continue reading " Car Accident Pedestrian Death Leads to Cook County Jury Verdict of $2.5 Million- Largest Verdict For Death of 90+ Year Old " »

In a turn by the Supreme Court of the United States, the court handed down its ruling June 19, 2008 in favor of workers suing Knolls Atomic Power Laboratory for age discrimination. Notable in this decision is the fact that under Chief Justice John Roberts the Supreme Court repeatedly sided with business. Some critics even voiced concerns that the Roberts court went out of its way to side with big business, particularly in employment cases. This decision stands as a kind of reversal of that implied policy.

In Meacham v. Knolls Atomic Power Laboratory, the National Government ordered its contractor, Knolls, to reduce its work force. As a result Knolls had its managers score their subordinates on "performance", "flexibility", and "critical skills". These scores, along with points for years of service, were to used to determine who would be laid off.

30 of the 31 employees let go were at least 40-years-old. Meacham was one of those 30. The lawsuit was initiated claiming disparate-impact under the Age Discrimination in Employment Act of 1967. Disparate-impact is when an employment practice has a greater impact on one group over another. These "employment practices" can be anything from written tests, height and weight requirements, educational requirements, and subjective procedures, such as interviews. Under disparate-impact one doesn't have to prove that there was an intent to discriminate against a certain group, but just that the result is discrimination.

In this case the key issue was whether or not Knolls's basis for lay-offs was skewed according to age. The managers all scored these employees and thus used their own discretion to come up with their decisions.

Continue reading " Age Discrimination Claim Upheld by U.S. Supreme Court In Meacham v. Knolls Atomic Power Laboratory " »

In a sharply divided decision, 4-3, the Illinois Supreme Court held that plaintiffs who are allowed to refile a case after a voluntary nonsuit, would still be allowed 90 days after the refiling to present the required Section 2-622 affidavit of a physician or other medical provider to certify that an Illinois medical negligence complaint has merit.

In Illinois it has been the law that as a prerequisite to filing any Illinois medical malpractice case, the plaintiff's attorney must include with the complaint a certificate of merit asserting that the case has merit from a physician or medical provider expert in the area of medicine being complained about. Sometimes lawyers find that although they believe the facts support a case for medical malpractice, no medical certificate was available in advance of the running of the statute of limitations.

In Illinois the statute of limitations is two years for most tort/negligence cases with some exceptions. What the statute of limitations does is act as a complete bar from bringing the action at all, i.e. the court would dismiss the case unless it is filed within the time limit.

Continue reading " Illinois Supreme Court Interprets Medical Malpractice Law " »

June 18, 2008- After a lengthy mediation session led by retired Cook County Circuit Court Judge Stuart Nudelman, the defendants, Victor Colin, M.D. and his professional practice, Elgin Family Physicians, agreed to settle the Illinois wrongful death case of decedent, Timothy.

Kreisman Law Offices handled the Illinois wrongful death claim which centered on the Illinois physicians' medical malpractice as a result of an incorrect diagnosis and treatment of Timothy's condition of fever, headache, and sleeplessness for at least two weeks. While these signs might not be overly alarming in your typical patient, Timothy's circumstances weren't those of your typical patient.

Born with a congenital heart valve defect of Tetralogy of Fallot, Timothy had undergone three open heart surgeries for valve repair, including a porcine (pig) valve replacement of his pulmonary valve in 1981. This history placed Timothy at high risk for bacterial endocarditis, which is a serious infection of the endocardium (the smooth interior lining of the heart) and the heart valves, typically caused by bacteria. It was this type of infection that eventually led to Timothy's death.

Continue reading " Illinois Wrongful Death Case Settled by Kreisman Law Offices " »

Blue Island, Illinois residents rejoiced on word that the 1st District Appellate Court reinstated a $120 million class action verdict. The Illinois class action lawsuit was prompted when Blue Island residents complained that the refinery was responsible for years of air pollution and other forms of contamination.

The refinery in question changed hands several times over the course of the years in question. It was first operated by Clark Oil & Refining Corporation, which became Clark Refining & Marketing, Inc. who then became Premcor and then finally Valero Energy Corporation. Valero is the present owner and maintains that it did not own the plant at the time the refinery was held responsible for the damages to the residents.

In November, 2005, a Cook County jury awarded the class of plaintiffs $80 million in compensatory damages and $40 million additional in punitive damages. But about a year after the entry of the verdict, the trial judge, Cheryl A. Starks, entertained the defendant's post-trial motion to decertify the class and vacate the damage awards. The Appellate Court considered only the issue of whether or not Judge Starks had the authority to decertify the class- they ruled that she did not.

Continue reading " Illinois Mass Tort Class Action $120 Million Verdict Against Oil Refinery Reinstated by Illinois Appellate Court " »

The American Association for Justice (AAJ) is lobbying for the rights of consumers injured by defective medical devices. In Riegel v. Medtronic, Inc. the U.S. Supreme Court ruled that manufacturers of medical products weren't liable for damages if their device received premarket FDA approval (see 03/01/08 post for more details). It is up to Congress to restore the rights of the consumer.

The Medical Device Safety Act of 2008 is set to mimic the 1976 Medical Device Act (MDA), which is what the U.S. Supreme Court relied on for its decision in Riegel v. Medtronic, Inc. The new act seeks to add the following language to the section titled "No Effect on Liability Under State Law":

Nothing in this section shall be construed to modify or otherwise effect any action for damages or the liability of any person under the law of any State.

By adding this language the new Act ensures that civil suits can be filed under state law even if the device was approved by the FDA.

In order to ensure that the new act protects the rights of consumers the AAJ is actively lobbying, uniting attorneys from across the country in their common goal. If you, too, feel strongly about this bill it is vital that you contact your member of Congress and voice your support for the bill.

Continue reading " Attorneys Lobby for Consumer Rights Stripped Away in Riegel v. Medtronic, Inc. " »

The Medicare Modernization Act of 2003 requires the president to submit legislation to remedy Medicare's money problems. Mixed up in this formula is the dangerous prospect that a tort reform provision will be attached that would severely limit the rights of citizens to bring Illinois medical negligence claims against doctors, hospitals, nurses and clinicians who may be responsible for injuring patients.

Tort reform or "deform", as some opponents refer to it, has been enacted into law in many states, usually only to limit the ability of the injured to bring Illinois medical malpractice lawsuits. In 2005 Illinois fell to tort reform in medical negligence cases only, the constitutionality of which is now being challenged. A test case succeeded in the Circuit Court of Cook County, where Judge Larson found the law to be unconstitutional. Currently that circuit court decision is being appealed and a decision by the Illinois Supreme Court is due later this year on the validity of that act.

The requirement for legislation is triggered when Medicare funding exceeds 45% by the general revenues for two consecutive years. The act also requires the majority and minority leaders of the Senate and the House to submit their own bills for consideration.

Continue reading " Illinois Medical Malpractice Reform Faces Judicial Challenge " »