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 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 a 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 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.

The Supreme Court took some of its analysis from common law and the history of the statutory right to recover for wrongful death. In the common law there is no right to recover for wrongful death. But that changed with the enactment of wrongful death statutes, which were first enacted in Illinois in 1853. Quoting from a prior decision the court stated, "a wrongful death action is barred if the decedent, at the time of death, would not have been able to pursue an action for personal injuries."

In the Williams case while the unborn baby was not injured from the accident, the mother's injuries were so severe and complicated that an effort to save the baby while treating the mother could have severely injured both the mother and the unborn child. For example, the child would have been exposed to an inordinate amount of x-ray. At the same time, catering to the life of the unborn child would have altered the mother's treatments so that she too would have had much greater risk of permanent, debilitating injuries which would not have been a risk with the ending of the pregnancy.

The Supreme Court was not convinced by the argument of plaintiff's counsel that the radiation exposure to the unborn child and the initial phase of the abortion to the fetus was a foreseeable injury to the unborn child stemming directly from the accident.

The court instead focused on its interpretation of the Illinois Wrongful Death Act requiring a decedent to have sustained a compensable injury prior to death in order to meet the threshold test. And as the unborn child did not sustain an injury directly from the accident the court ruled in favor of the defendant.

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 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.

Post trial, the Circuit Court judge, Irwin Solganick granted judgment notwithstanding the verdict in favor of Loyola, even though the jury found the hospital responsible with a verdict in favor the plaintiff-decedent's family in the amount of $2.7 million. So even though the jury found the hospital guilty, Judge Solganick overruled that decision and entered a not-guilty verdict against Loyola. According to Judge Solganick his decision to vacate that jury verdict was premised on inconsistencies in the verdict.

According to Judge Solganick the inconsistencies are that the jury concluded that the defendant doctor, Dr. Parvathaneni, did not do anything to harm Longnecker, but at the same time ruled that the hospital was negligent in not making sure that Dr. Parvathaneni understood that he was to thoroughly inspect the heart before harvesting it. According to Judge Solganick "whether [Dr. Parvathaneni] personally did not understand his role or whether Loyola did not see that he understood his role did not matter" and therefore Loyola shouldn't be held accountable for Longnecker's death.

Illinois' First District Appellate Court, in a 2-1 decision, reversed Judge Solganick's order and remanded the case back to the trial judge for reinstatement of the verdict.

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.

In 1999 Byrdsong was murdered while walking with his two youngest children through his neighborhood when a white supremacist peppered them with bullets. Byrdsong was hit in the back and died within hours.

The mission of The Ricky Byrdsong Foundation was to arrest the growing epidemic of hate and violence by and against youth, to build character in their lives and help them find a sense of purpose. The Race Against Hate unites people of different racial, religious and ethnic backgrounds to celebrate diversity, promote reconciliation and declare that racism is not welcome or tolerated ANYWHERE in America. - Sherialyn Birdsong

The Ricky Byrdsong Foundation was dissolved in 2006, but its work is carried on through the YWCA Evanston/North Shore’s racial justice programming. This program carries on to erase divisions between peoples of varying backgrounds, color, religions, ethnicities and gender.

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

The $2.5 Million 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 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.

The prior record for a verdict or settlement awarded to the surviving family of a person aged 90 or above was a $825,000 settlement in 1999. The jump between the '99 case and the Grochis verdict reflects that juries are now evaluating cases irrespective of the age of a plaintiff. This changing outlook will influence the way elderly plaintiff's cases are worked up and tried.

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 a medical negligence complaint has merit.

In Illinois it has been the law that as a prerequisite to filing any 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.

In the underlying case decided by the Supreme Court, the plaintiff filed suit without the certificate of merit. Facing dismissal of the case by a McLean County judge, the plaintiff voluntarily dismissed her case, refiled within one year and then asked for another 90 days to obtain the required certificate of merit. The circuit court dismissed plaintiff's case and an appeal ensued to the 4th Appellate District. That appellate court reversed the lower court decision and the case was further appealed to the Illinois Supreme Court.

The Illinois Supreme Court likely took up this issue up is because some appellate court districts in Illinois had differing views on this 90 day rule. While all courts allowed attorneys to file a medical malpractice case without the certificate of merit with the proviso that one must be submitted within 90 days thereafter. And in the absence of the certificate being filed within the time limits, the complaint would be dismissed.

However, some courts also allowed plaintiffs a one time grant of a nonsuit, which is a non-prejudicial dismissal with a right to reinstate the case within one year. What this means is that some judges would allow plaintiff to refile their case after missing the 90-day deadline for filing a certificate of merit, whereas another court might not allow this. There was no consistency between the various courts of Illinois.

Much of the confusion came as a result of the tort reform statute in 1995 that said a certificate of merit needed to be filed within 90 days of the case, which was held to be unconstitutional by our supreme court in 1997. The Illinois legislature amended the statute two months after the supreme court decision. However, this new statute neglected to address the 90-day extension in its then new provisions so that it was at the discretion of individual courts.

In this case the Supreme Court affirmed the appellate court decision, thus clarifying the law on the subject. So as it stands now, a plaintiff who has not submitted the certificate of merit within the initial deadline may dismiss his or her case, refile within one year and have an additional 90 days thereafter to file the professional's certificate of merit. This standard will be applied to all courts throughout Illinois.

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 wrongful death case of decedent, Timothy.

The claim centered on the physicians 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.

Dr. Colin was aware of Timothy's history and yet continued to diagnose him with various types of throat ailments even though the patient presented on five different occasions over the course of five weeks with continuing complaints of high fevers, weakness, and sleeplessness (all signs of endocarditis). At no point did Dr. Colin order a chest x-ray, labs, or any other tests that would have diagnosed his bacterial endocarditis. Finally, when Timothy presented with decreased oxygen in addition to his other symptoms, Dr. Colin admitted him to the hospital for testing. But at that point Timothy's condition was already too far gone. He was airlifted to another hospital the next day, where he died within a week. He was survived by his parents and two siblings.

The defendants were inclined to entertain this mediation setting even before the deposition of the defendants were completed. The case was pending in Kane County, Illinois.

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

June 16, 2008- Blue Island, Illinois residents rejoiced on word that the 1st District Appellate Court reinstated a $120 million class action verdict. The 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.

"Acting without changed circumstances and after a decision on the merits, the trial court simply lacked the statutory authority to issue the order that it did," wrote Justice Robert E. Gordon. "As a result, this court must vacate the decertification order."

Valero will continue to challenge the ruling that it believes was improper and will seek leave to appeal to the Illinois Supreme Court. It's still to be contested as to whether the plaintiffs make up a proper class, the issue being that the plaintiffs didn't allocate damages among the class. In any class action suit the plaintiff is responsible for delineating between the various parties and establishing a method of grouping them within the class. This was allegedly not done in this case.

Additionally, there remains a defendant argument that there is no basis for the jury verdict in that there is no discernible way to account for the many and varied complaints of harm from the different citizens that make up the class, such as complaints of skin/eye irritation or respiratory issues.

There was some agreement between the parties that it was improper to decertify a class after verdict or judgment or after the case had been decided on the merits. The Starks' decision to grant a new trial based on the decertification of the class was also vacated. Priscilla Rosolowski v. Clark Refining & Marketing, Inc., No. 1-07-0048.

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 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 claims. 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.

The House bill includes the tired, worn medical malpractice provisions that had been rejected before: $250,000 cap on noneconomic damages, the elimination of joint liability, restrictions of punitive damages, limits on fees for lawyers, and a shortened statute of limitations for filing cases. The idea here by the Bush administration is to apply these provisions to "any heath care lawsuit, thus effecting all medical malpractice cases, not just those involving Medicare patients".

This is onerous to those injured or killed by acts of medical negligence. It's shameful to punish those who were innocently injured this way, but have no restriction on the amount of money a corporation or insurance can recover in one of its lawsuits. It's shameful that other citizens injured in a truck accident would likewise have no such restrictions, when our friends, families and neighbors are limited by such an arbitrary set of laws, designed only to protect those who inflicted the harm.

The U.S. House and Senate committees considering the Medicare bill are required by the trigger law to report Medicare funding legislation out of committee to their respective chambers by June 30. The House is required to vote on final passage by July 30. Check back here for continued updates on this bill over the course of the next two months.

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