Chicago Personal Injury Lawyer Blog

The November 2011 issue of the Illinois Bar Journal contains an article entitled “Creditors Are Not Freeloaders: The Common Fund Doctrine Does Not Apply to Hospital Lienholders.” The law article was written by Kreisman Law Office principal Robert D. Kreisman. Kreisman has been representing Illinois plaintiffs in personal injury and medical malpractice lawsuits for over 35 years in the Chicago and Cook County areas.

The Illinois Bar Journal article analyzes a recent Illinois Supreme Court decision in Wendling v. Southern Illinois Hospital Services, 242 Ill.2d 261, 950 N.E.2d 646 (2011). The Wendling case was significant in that the court's decision removed any doubt as to whether or not the common fund doctrine applies to a healthcare services lien; the Supreme Court determined that the common fund doctrine does not apply.

In litigation, the general rule is that each party is responsible for paying his or her own attorney fees and costs. However, the common fund doctrine is an exception to that general rule. Under the common fund doctrine is applied when a common fund is created through the efforts of the litigant's attorney, which in turn ends up benefiting a third party. When this occurs, the attorney who created the common fund can recover reasonable fees and costs from the third party, even though he/she is not technically the attorney's client.

Continue reading "Illinois Bar Journal Publishes Tort Law Article Written by Robert D. Kreisman" »

In the recent case of Vincent v. Alden-Park Strathmoor, Inc., No. 110406, 2011 WL 1077706 (Ill.Sup.Ct.), the Supreme Court reviewed the nursing home malpractice lawsuit to determine whether or not punitive damages are allowed in the event that the wronged party is deceased. The Vincent case was filed by the family members of Majorie Vincent, an elderly resident of Alden-Park Strathmoor, after Majorie died while living at the long-term nursing facility.

Majorie's family filed a complaint under the Illinois Nursing Home Care Act, which alleged that Alden-Park had violated the Act through its negligent and abusive treatment of Majorie. The complaint specifically accused Alden-Park of failing to provide Majorie with adequate medical and personal care and was willful and want in its conscious and reckless disregard of her health and safety.

In its complaint, the plaintiffs reserved the right to seek punitive damages, which are damages awarded as punishment for the defendant's willful and wanton behavior. And while the plaintiffs did not seek the damages in their original complaint, they did reserve the right to do so at a later date. However, the defendants brought a motion seeking to bar the plaintiffs from requesting punitive damages at any time. The motion was based on the general assumption because the Illinois Nursing Home Care Act does not specifically state whether or not punitive damages survive a person's death, that they do not.

Continue reading "Illinois Supreme Court Holds Again that Punitive Damage Claims Do Not Survive an Injured Person's Death - Vincent v. Alden-Park Strathmoor" »

The Illinois Supreme Court overturned an Appellate Court ruling regarding parents' liability for underage drinking on their premises in Bell v. Hutsell, No. 110724 (May 19, 2011). The Appellate Court had found that the underage hosts' parents were responsible for the death of one of the underage partygoers who drove into a tree after leaving the party intoxicated. However, the Illinois Supreme Court ruled that the case facts supported a case of true nonfeasance on the part of the parents and as such failed to establish a duty to protect the third party decedent. As a result of the Illinois Supreme Court decision, Bell was dismissed with prejudice.

The original wrongful death complaint alleged that the defendants' son, Jonathan Hutsell, had hosted a party at their home. The 18 year-old decedent, Daniel Bell, attended this party where underage drinking took place; Bell died after he left the Hutsells's party intoxicated and drove into a tree. The Illinois complaint contended that the Hutsells had voluntarily assumed a duty to protect the partygoers, including the decedent; the complaint alleged that this duty was established by the Hutsells' instructions to their son that underage drinking would not be tolerated at the party and that they would be personally monitoring the party to ensure no minors consumed alcohol in their home. The plaintiff's contention regarding this "assumed duty" on the part of the Hutsells that is at issue in this wrongful death case.

However, the complaint further suggested that not only did the Hutsells fail to adequately perform their duty to the decedent, but were also aware that minors were consuming alcohol in their home. Therefore, the plaintiffs contended that the Hutsells had negligently performed their self-imposed duty to prevent underage consumption of alcohol at their son's party. While the defense argued that the plaintiffs had failed to provide adequate proof that the Hutsells had voluntarily undertaken a duty towards the decedent, the Appellate Court decision found that the defense had not provided enough evidence to support this claim and remanded the wrongful death lawsuit to the trial court.

Continue reading "Social Host Liability Decision in Underage Drinking Case Overturned By Illinois Supreme Court - Bell v. Hutsell" »

In the premise liability lawsuit of Tilschner v. Spangler, No. 2-10-0111 (May 6, 2011), the Illinois Appellate Court was asked to determine whether a specific law was applicable in Illinois. After reviewing past Illinois case law, the appellate court held that §318 of the Restatement (Second) of Torts has not been adopted in Illinois. The Illinois Appellate Court ruling essentially eliminated the legal basis of the plaintiff's claim, thereby affirming the lower court's dismissal of Count II of plaintiff's complaint.

Tilschner was brought against defendant Ralph Ruppel after he lit fireworks that injured Patricia Tilschner; Tilschner brought a common-law negligence count against Ruppel for his role in causing the injuries Tilschner sustained. However, the appeal involves the negligence claim Tilschner sought to bring against Lowell Spangler, the property owner hosting the party at which the fireworks injury took place.

In Count II of her personal injury complaint, Tilschner alleged that Spangler

[o]wed a duty to the Plaintiff and his other invited guests to keep control and care over his property and to protect them against any unreasonable risks of harm known due to acts of a third person under his control, including the Defendant, Ralph Ruppel, pursuant to the Restatement (Second) of Torts, §318.

Continue reading "Illinois Appellate Court Affirms Section 318 of the Restatement (Second) of Torts Does Not Apply in Illinois - Tilschner v. Spangler " »

Legal venue is an important issue in many personal injury lawsuits, especially when the different states have different laws. In the product liability lawsuit of Joseph Murphy v. Mancari’s Chrysler Plymouth, Inc., No. 1-10-2178 (March 31, 2011), the Illinois Appellate Court sought to answer the question of whether Michigan law or Illinois law governed the case regarding issues of liability and damages.

The car accident at issue in Murphy occurred in Michigan. However, the plaintiff driver and the defendant car dealership where the plaintiff bought his car both were located in Illinois. The court then had to decide where the personal injury lawsuit should be heard - in Michigan, where the accident occurred, or in Illinois, where the plaintiff driver lived and worked.

Where the lawsuit was filed, or "choice-of-law," would be critical to the eventual outcome of Murphy because of the major differences in Michigan and Illinois law. When deciding product liability issues, Illinois law applies a strict liability rule, whereas Michigan law applies a pure negligence standard. This means that Illinois defendants cannot effectively argue that they were unaware of the risk of the design defect, whereas this could be a successful defense in Michigan where the standard of care is set by similar manufacturers. In addition, Michigan imposes a $500,000 cap on non-economic damages in any product liability lawsuits, whereas Illinois has no such cap on damages.

Continue reading "Appellate Court Holds Illinois Law Applies to Michigan Car Crash - Murphy v. Mancari’s Chrysler Plymouth" »

Illinois lawyers and judges are considering expanding juror's roles in the trial process. Currently jurors take a fairly passive part in the trial process itself as they sit and listen to each side present his or her case. It is only when it is time to weigh the evidence and come to a decision that jurors are allowed to actively participate. However, the Illinois Supreme Court Rules Committee is considering a proposal that would increase the role of jurors in the trial process itself.

On May 20, 2011, the Rules Committee is holding a hearing in Chicago, Illinois, to consider the proposal that jurors be allowed to submit written questions for the various witnesses. The jury's questions would not be given directly to the witnesses, but would be filtered through the judge and trial attorneys. The judge would read each written question to the lawyers in a closed session, giving the attorneys an opportunity to object.

The trial judge would then take these objections into consideration while ruling on whether or not to allow each question to be read to the intended witness. If the judge decides to allow the juror's question, he also has the option to either read it as written, or to modify it as he sees fit. Once the judge has made his decision, then either the judge or one of the lawyers would be responsible for reading the question to the witness during the trial, with both the plaintiff and defense attorneys being given the opportunity to ask the witness follow-up questions.

Continue reading "Should Illinois Jurors Be Allowed to Question Trial Witnesses? Illinois Supreme Court Rules Committee Considers New Proposal" »

An Illinois Appellate Court denied defendant's motion for a new trial in the Illinois auto accident lawsuit of Estate of Rosemary Oglesby et al. v. William Berg, et al., No. 1-09-0639. The defense's appeal involved claims that the trial court had acted incorrectly when it refused to send one of the plaintiff's medical bills to the jury during its review of the case. The jury ended up ruling in favor of the plaintiff, an outcome that the defense argued could have been different had the jury seen that medical bill.

The personal injury lawsuit involved an Illinois auto accident between the plaintiff, 60 year-old Rosemary Oglesby, and defendant William Berg, who was driving a park district van at the time of the car crash. Two days after the car accident, Oglesby presented to one of her regular physicians; Ms. Oglesby was seeing many different doctors at the time for her ongoing battle with cancer. The exhibit at issue was a billing statement from that specific doctor, which included the visit shortly after the car accident, along with twelve additional visits over the years.

The exhibit had been produced by the plaintiff, which is typical considering it was her medical bill and was likely being used to support the plaintiff's claim for reimbursement of past medical bills. However, it was the defense that requested that this particular exhibit be presented to the jury room while it deliberated its decision in the Illinois personal injury trial. The trial judge denied the defendants' request and the exhibit was not formally presented to the jury after the closing arguments.

Continue reading "Illinois Appellate Court Affirms Car Crash Verdict Despite Judge's Error - Oglesby v. Berg" »

A recent Illinois Supreme Court decision affects the way Illinois personal injury attorneys are compensated by medical lien holders, such as as hospitals, clinics, or doctors. Wendling v. Southern Illinois Hospital Services, et al. and Howell v. Southern Illinois Hospital Services, Nos. 110199, 110200 Cons reversed an appellate court decision that held that hospitals were responsible for paying plaintiff attorney fees when the plaintiff's attorney had assisted in securing payment for the hospital's outstanding medical lien.

The original lawsuit revolved around three different plaintiffs who were injured in three separate car accidents; however, each plaintiff was treated at hospitals owned by Southern Illinois Hospital Services. Each plaintiff failed to pay his or her hospital bills, so Southern Illinois Hospital Services filed medical liens for each plaintiff under the principles of the Healthcare Services Lien Act.

A lien is entered when an entity, in this case Southern Illinois Hospital Services, lays claim to future funds in payment for past services provided. Because the individual plaintiffs failed to pay their medical bills, the hospital was seeking payment from the defendants who caused the injuries that necessitated the hospital treatment. The idea is that had the defendants not caused the auto accidents, the plaintiffs wouldn't have needed treatment, and the hospital wouldn't be left with unpaid bills. Therefore, if proven negligent, then the defendants are responsible for paying the outstanding hospital bills.

Continue reading "Illinois Supreme Court Rules Common Fund Doctrine Does Not Apply to Healthcare Liens - Wendling v. Southern Illinois Hospital Services" »

In the Illinois auto accident lawsuit of Corinne Thompson v. Christie Gordon, et al., No. 110066 (IL Sup. Ct.), the Illinois Supreme Court held that an engineer does not have to be professionally licensed in Illinois in order to qualify as an "expert" witness in an Illinois civil lawsuit. The Supreme Court's decision affirmed the decision made by the appellate court; however, it reversed the circuit court's ruling that the civil engineer hired by the plaintiff needed to be licensed in the state of Illinois in order to testify as an expert witness in the pending civil suit.

In Illinois, qualifications for various types of trial witnesses are established under Illinois Supreme Court Rule 213. A civil engineer, such as the one in Thompson, who is hired to testify as to the standard of care within his or her professional field, would be handled under Rule 213(f)(3). This section deals with "controlled expert witnesses," i.e., the party's retained expert, and requires the party to provide the expert's qualifications to provide opinions on the specialized subject matter.

In Thompson, it was these qualifications that were up for debate. While the plaintiff held that its civil engineer was qualified to testify based on his experience and education, the defendants held that without being professionally licensed in Illinois he could not provide opinions as to the standard of care required of the defendants' engineers and contractors. The defendants brought a motion to strike the civil engineer's testimony as to the design defects of a highway intersection, which was granted by the circuit court. Plaintiffs appealed this decision; without the civil engineer's expert testimony it would be almost impossible for the plaintiff to prove her claims against the defendants.

Continue reading "Illinois Engineering Expert Qualifications Clarified by Illinois Supreme Court in Thompson v. Gordon, et al." »

Oftentimes lawyers employ expert witnesses to help prove their theory of liability, whether in a medical malpractice lawsuit, a personal injury lawsuit, or a product liability lawsuit. These expert witness can range from a general surgeon who might testify as to how the defendant doctor violated the standard of care, to a life care planner who could calculate the plaintiff's lost future earnings following a construction site injury, or an engineer testifying regarding a product's design defects. Whatever the type of expert witness, one thing remains constant: an expert witness's testimony is often key in proving one's case.

Given the valuable nature of expert witness testimony, it is essential that the expert is qualified to provide the opinions that are the subject of his or her testimony. It is common for both plaintiff and defense lawyers to challenge the qualifications of the opposing side's expert witnesses. Because of the important nature of expert witness qualification issues, the United States Supreme Court has often spoken on the subject the acceptability of expert witnesses to testify, but most widely examined and cited is the product liability case of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

In Daubert, the Court considered the admissibility of the testimony of the plaintiff's expert witness, who was interpreting the epidemiology studies of other doctors. The expert’s testimony was rejected by the trial court in the U.S. Court of Appeals for the Ninth Circuit under the Frye standard, taken from Frye v United States, 293 F. 1013 (D.C. Cir. 1923) .

Continue reading "Applying Daubert v. Merrell Dow Pharmaceuticals to Filter Expert Testimony Qualifications" »

The Illinois Appellate Court recently reviewed a trial court's summary judgment ruling in an Illinois auto accident case. The trial court had granted defendants' motion for summary judgment under the Dead Man's Act following the death of Edward Henry, one of the defendants. However, the Illinois Appellate Court reversed the lower court's decision and remanded the Illinois personal injury claim back to the trial court. Ladys Balma and Linda Gallup v. Edward Henry and Cynthia Grosvenor, No. 2-09-1301.

The Illinois Code of Civil Procedure has an act called The Dead Man's Act (735 ILCS 5/8‑201). In Balma, the defendant Edward Henry died before the case came up for trial. Henry's estate and the other defendant, Cynthia Grosvenor, brought a motion for summary judgment, citing the Dead Man's Act as grounds for the Illinois personal injury case's dismissal.

Under the Dead Man's Act, "no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased . . . or to any event which took place in the presence of the deceased." Therefore, the defendants in Balma argued that because the decedent's evidence deposition had not been taken that there was no testimony that could be used in his defense at trial. The trial court agreed and therefore granted the motion for summary judgment, which in essence dismissed the Illinois auto accident case.

Continue reading "Illinois Car Accident Case Reviewed For Application of Dead Man's Act - Balma v. Henry" »

Yesterday former Illinois governor Rob Blagojevich was found guilty of lying to FBI agents about his involvement in campaign fundraising. The jury could not agree on the remaining 23 felony counts brought against Blagojevich by the government, including charges of trying to profit from Obama's former Senate seat.

Prosecutors intend on retrying Blagojevich on those 23 additional counts on which the deadlocked jury was unable to agree. Because the jury was unable to unanimously agree on those counts there was a mistrial regarding those counts. Legally this means that the former governor can be retried on them and still be found guilty. However, if the jury had found him not guilty on any counts, which it did not, then those felony charges would be barred from further prosecution.

The current conviction carries a maximum of five years in prison; however, the official sentencing is unlikely to occur before the retrial. If Blagojevich ends up being convicted of all the felony counts against him then he faces up to 415 years in prison and up to $6 million in fines.

Continue reading "Blagojevich Trial Ends: Illinois Jury Finds The Ex-Governor Guilty of Only 1 of 24 Counts" »

An Illinois nursing home abuse lawsuit was recently the subject of a review by the Illinois Appellate Court; Peterson v. Residential Alternatives of Illinois, Inc., No. 3-09-0743. The court reviewed whether the Illinois nursing home had the right to demand the decedent's estate arbitrate its two-count complaint claiming a wrongful death count and a survival action count under the Illinois Nursing Home Care Act.

The trial court upheld the defendant's right to arbitrate and denied plaintiff's request for a jury trial. This arbitration clause issue was recently ruled on by the Illinois Supreme Court in Carter v. SSC Odin Operating Co., LLC, No. 106511 (4/15/10), where the Court upheld the nursing home's right to arbitrate in Illinois nursing home abuse cases.

The main issue in both Peterson and Carter revolves around the signed arbitration agreement. However, while in Carter the arbitration language was included in the nursing home care contract, in Peterson the arbitration agreement was a separate document. It seems that this seemingly small difference has in fact resulted in a very different legal outcome in Peterson.

The Appellate Court held that even though the two documents were signed on the same date that there was no evidence that they should be taken as one unified document. The language used in the arbitration agreement was very vague and never specifically referred to the nursing home care contract, nor did the nursing home care contract ever refer to the arbitration agreement. Specifically, the arbitration agreement stated, "Notwithstanding the parties intent to submit any controversy or claim arising out of or relating to this agreement or any other document signed or initialed in connection with this agreement to arbitration."

While the court noted that prior case law has supported the connection between two separate documents signed at the same time, the law requires that "an enforceable contract must be premised on language that is definite and certain as to all essential terms." Academy Chicago Publishers v. Cheever, 144 Ill. 2d1224, 30 (1991). The court found that the language included in the arbitration agreement did not satisfy this requirement.

Continue reading "Illinois Nursing Home Arbitration Clause Subject of Recent Illinois Appellate Court Decision" »

An Illinois lawsuit alleging fraud filed by three of a corporation's directors and officers against its remaining directors and officers. Zahl v. Krupa, et al., No. 2-08-0844 (April 13, 2010), had previously been reviewed by the Illinois Appellate Court after plaintiffs' three counts of fraud and breach-of-contract were dismissed, at which point it was reversed and remanded back to the lower court. The case came before the Appellate Court a second time, this time regarding the dismissal of all but one of the corporation's directors and officers.

The majority of the corporation's directors and officers alleged that they should be dismissed from the case because they had no knowledge of the fraud committed by Krupa, an officer of the corporation. The main issue in the plaintiffs' complaint was that Krupa had conned plaintiffs into giving him their money for a special "investment fund" he alleged was limited to the corporation's officers and directors. The issue before the Appellate Court was whether the remaining officers and directors are liable for Krupa's actions.

The Appellate Court referred to Murphy v. Walters, 87 Ill.App.3d 415 (1980) when considering the remaining officers and directors' liability.

As a general rule, a corporation’s officer or director is not liable for the fraud of other officers or agents merely because of its official character, but he is individually liable for fraudulent acts of his own or in which he participates. . . He is liable only if he with knowledge, or recklessly without it, participates or assists in the fraud.

Continue reading "Illinois Appellate Court Dismisses Liability of Directors and Corporate Officers in Investment Fraud Case" »

In the Illinois personal injury case of Anderson v. Zamir, No. 5-08-0542, the plaintiff filed a motion for a new trial after the jury returned a verdict awarding only part of her medical bills. The plaintiff's medical bills as a result of the rear-end car crash totaled $28,804. However, the jury returned a verdict of only $12,500; only $5,000 of which was for her medical bills with the remaining $7,500 for pain and suffering.

While typically an Appellate Court will not overturn a jury's monetary awards since this is "an issue of fact for the jury to determine". Typically a jury's verdict awards will only be overturned if a party shows that the jury obviously ignored an established element of damages, that the award does not relate to the loss suffered, or if the verdict was the result of prejudice.

The facts of the case were that the plaintiff was rear-ended by the defendant. She did not seek treatment for the car crash until the day after the accident, at which time she was complaining of headaches and neck pain. The plaintiff went on to receive several rounds of physical therapy, but with little relief. She eventually underwent surgery to repair a tear in her shoulder.

Continue reading "Illinois Rear-End Car Crash Lawsuit Will Be Retried on Damages - Anderson v. Zamir " »

A Cook County auto accident case will be retried on damages after an Illinois Appellate Court decision to grant plaintiff's motion in Kiggins v. Mather, No. 1-08-1753. At the original personal injury trial the plaintiff had received a verdict of $49,711 for medical expenses and lost earnings. However, the original verdict did not return any damages for disfigurement, loss of normal life, or pain and suffering.

In Illinois, the amount of damages awarded is typically left up to the jury's discretion. The jury is given judge-approved jury instructions so that the jury can make an informed decision regarding its verdict. Oftentimes if a party disagrees with the verdict their appeal focuses on the content of these jury instructions. For example, in Ready v. United/Goedecke Services, Inc., No. 108910, the Appellate Court considered issues regarding the sole proximate cause jury instruction.

However, in Kiggins, the issue was not the jury instructions, but the jury's decision itself. Kiggins argued that he should have been awarded damages for pain and suffering and disfigurement. The basis for this argument was that he had suffered more than a minor injury as a result of the auto accident and as such was entitled to additional non-economic damages.

Continue reading "Crosswalk Auto Accident Case Returns to Trial Court to Decide Pain and Suffering Damages: Kiggins v. Mather" »

In Illinois personal injury lawsuits, the job of the court is to oversee the case and make sure it moves efficiently through the court system. In most cases, this involves setting deadlines for discovery, establishing a firm trial date, and ruling on motions. However, in some cases the court will order one or both of the parties to perform a specific action.

In a recent Illinois personal injury lawsuit, the court ordered the plaintiff's family to accept the defendant CTA's offer to settle for $11 million. The defendant had previously offered the plaintiff's family $10 million, which they had refused.

This Illinois personal injury case involved a 28 year-old factory worker who was a passenger in a car when it was struck by a Chicago bus. At the time of the accident the plaintiff had a one year-old son with his second child being born just one day after the Chicago bus accident. The severity of the injuries the Illinois resident sustained during the bus accident have left him with the mental capacity of a child.

The plaintiff required three months of hospitalization due to a traumatic brain injury which has left him permanently disabled. Not only is he no longer to work and provide for his young family, but he requires constant care and supervision at home.

Continue reading "Chicago Bus Accident Settlement Ordered By Cook County Court Despite Plaintiff's Willingness To Accept Settlement" »

In Illinois, parties to a lawsuit can file motions in limine in an effort to keep certain information from being brought up at trial. The Illinois Appellate Court recently reviewed an Illinois personal injury case, Ford v. Grizzle, No. 5-08-0185, after the plaintiff claimed the defense received a favorable jury verdict due to the Circuit Court's denial of plaintiff's motion in limine.

The plaintiff's motion in limine sought to prevent evidence being introduced related to plaintiff's two prior traffic accidents and injuries. However, the defense contended that this information was relevant because there was extensive medical evidence demonstrating that the prior injuries were relevant to the plaintiff's current injuries.

The trial court denied plaintiff's motion in limine and the information was allowed at the Illinois personal injury trial. The jury returned a verdict in favor of the defense, which led to the plaintiff's appeal to the Illinois Appellate Court that the introduction of the evidence regrading the two prior injuries had prejudiced the jury.

Continue reading "Illinois Personal Injury Claim Reviewed By Appellate Court: Uphold Denial of Plaintiff’s Motion to Keep Out Two Prior Accidents" »

After almost three years of legal battles, the Illinois Supreme Court came to a decision on whether economic limits should be placed on Illinois medical malpractice lawsuits. In Lebron v. Gottlieb Memorial Hospital, the Illinois high court upheld a Cook County Circuit Court ruling that the Illinois law on medical malpractice non-economic damage caps violate the Illinois Constitution’s “separation of powers” clause.

This decision essentially states that the Illinois legislators interfered with a jury's right to determine the amount of economic damages in Illinois medical malpractice lawsuits. The recent Lebron decision marks the third time that the Illinois Supreme Court struck down unconstitutional limits on medical malpractice awards, having done so with similar law in both 1976 and 1997.

The underlying lawsuit, Lebron v. Gottlieb Memorial Hospital, stems from a 2006 Illinois birth injury lawsuit filed by the family of a girl who suffered severe brain damage during her delivery at Gottlieb Memorial Hospital in Melrose Park, Illinois.

Continue reading "Illinois Medical Malpractice Jury Award Limits Struck Down By Illinois Supreme Court in Lebron v. Gottlieb Memorial Hospital" »

After a long and complicated battle, a major victory for class action and product defect lawsuits was noted in the case of Carideo v. Dell, Inc. In light of new events, the United States District Court Judge found that the computer company’s mandatory arbitration clause and class action ban was “unenforceable”.

Citing product liability claims, Carideo alleged that Dell manufactured and marketed laptops priced between $1,300 and $1,700 that were defectively designed and manufactured. Upon the filing of Carideo, Dell moved to compel arbitration based on its mandatory arbitration clause. Under this clause, the National Arbitration Forum (NAF) was assigned as the arbitrator and class actions were banned. Furthermore, Dell’s forum consumer contract also has a Texas choice of law provision. In June 2007, at Dell’s urging, Texas law was applied to Carideo, which resulted in arbitration being ordered by the court.

However, the following year another case involving similar facts, McKee v. AT&T, the Washington Supreme Court struck down AT&T’s class action ban and held that the phone company’s new choice of law provision was unenforceable. Shortly after the McKee decision, Minnesota's Attorney General sued NAF, which prompted the company to announce it would no longer be arbitrating consumer disputes. And because NAF was the mandatory arbitrator assigned to all of Dell's cases, Carideo's decision was reevaluated by the original judge.

Continue reading "Mandatory Arbitration Clause Defeated in Carideo v. Dell, Inc." »

The final chapter of a long debate regarding whether the Illinois Vehicle Code's "omnibus coverage" applies to commercial truckers was recently decided upon by the Illinois Supreme Court. The Court's held in Zurich American Inc. Co. v. Key Cartage, Inc., No. 107472 (Oct 29, 2009) that Illinois commercial vehicles are covered under the Illinois Commercial Transportation Law, a statute governing commercial vehicles, and not the Illinois Vehicle Code. Therefore the omnibus coverage clause under the Illinois Vehicle Code does not apply to commercial vehicle insurance.

The Illinois Supreme Courts decision overturned the Illinois Appellate Court's previous decision in the Illinois trucking accident case which asserted that the Illinois Vehicle Code did in fact apply to commercial vehicles.

In Zurich, the issue at stake was whether Zurich, a company insuring a trucking company, or West Bend, an insurer covering the leased commercial vehicle, was responsible for providing coverage. The case facts were that Franklin Truck Group, insured by West Bend, had leased a vehicle to Rose Cartage Services, insured by Zurich. Rose Cartage loaned this vehicle out to an affiliated company, Key Cartage. One of Key Cartage's drivers was operating this truck when he was involved in an Illinois truck accident that left one dead.

Zurich's insurance policy had a reciprocal coverage provision that stated that they would only cover Rose Cartage employees and that they would not extend coverage to anyone using the truck with expressed or implied interest if that person did not also insure the vehicle's owner. In response, West Bend contended that this reciprocal coverage clause violated the Illinois Vehicle Code that requires insurance companies to provide "omnibus coverage", i.e. coverage to any driver that has the expressed or implied permission of the insured to use the vehicle.

Continue reading "Illinois Truck Accident Insurance Coverage Clarified By Illinois Supreme Court" »

Whenever I take on a new Chicago or Illinois personal injury case, one of the first things I tell my clients is that we will need to prepare the case all the way through for a jury trial. The nature of Illinois personal injury cases and Illinois medical negligence demands that the plaintiff be mentally prepared to stick with their case right up until the verdict.

But as most Chicago lawyers know, most clients ask the question: "Will this case be settled before trial?" And while I still insist that my clients' focus be on obtaining a positive verdict, mediation is becoming more and more of a viable option. In fact, some Cook County courts and judges are ordering mediation for more serious injury cases.

Mediation is often looked to as a favorable alternative to trial because it is less expensive and less time consuming than working a case up all the way through a jury verdict. Mediation can be a positive option for most, but not all, cases.

Typically, at the beginning of the mediation process, both plaintiffs and defendants agree on a private, unbiased mediator whose role is to bring both parties to a just and reasonable settlement agreement. This neutral mediator is selected and agreed upon by both parties via a signed document.

Continue reading "Kreisman Law Offices Thoughts On Mediation and Settlement Before Jury Trial" »

A lawsuit brought on behalf of an individual for Illinois medical malpractice was found to be a nullity because the supposed lawyer was unlicensed. The so-called nullity rule directly punished the unknowing client in this case.

In Applebaum v. Rush University Medical Center, 2008 WL 4943860 (Nov. 20), the high court of Illinois explained that the nullity rule:

Should be invoked only where it fulfills its purposes of protecting both the public and the integrity of the court system from the actions of the unlicensed, and where no other alternative remedy is possible.

The high court clarified the application of the nullity rule in a case where the plaintiff personally filed a medical malpractice on behalf of his deceased father’s estate. At the time of filing the lawsuit, the plaintiff who was on inactive status with the Attorney Registration and Disciplinary Commission (ARDC).

Continue reading "Illinois Supreme Court Clarifies Lawsuits Brought By Masquerading Lawyers" »

In the many years that I have practiced medical malpractice in Cook County and Illinois, my clients have warned me that the pertinant medical records in their case had been falsified, changed, deleted or simply removed from the hospital and medical charts.

In Illinois, the “intentional destruction, mutilation, alteration or concealment of evidence” is called spoliation of evidence. If medical records were to be destroyed or altered, the Illinois Supreme Court can impose a sanction upon any party who unreasonably refuses to comply with any discovery rule or order entered pursuant to the Illinois Supreme Court Rules. The court has the power to stay the proceedings pending compliance; default the case, barring further pleading related to the issue; dismiss a claim or counterclaim related to that issue; exclude testimony related to the issue; to strike any relevant portion of the offending party’s pleadings and enter judgment on the issue; and to enter a default judgment or dismissal against the offending party.

In 1995, the Illinois Supreme Court recognized a separate cause of action for negligent spoliation of evidence. So if your medical records in a medical malpractice case were altered by the medical staff, then you could file a separate lawsuit regarding the altered evidence. And because adequate remedies for the destruction of evidence already exists under Illinois Supreme Court Rule 219, a new tort wasn't created. Instead, the Supreme Court held that an action for negligent spoliation could be brought under existing negligence law.

Continue reading "Medical Records Falsified In Birth Injury Case" »

There is a lot of information on the Internet that allows us to research everything from restaurants to shoemakers. And Illinois law is no exception. A number of free websites allow both lawyers and Illinois citizens to readily access a wide variety of legal information.

The Illinois Supreme Court and Illinois Appellate Courts can be found at a site located at http://www.state.il.us/court. The website contains past opinions and rulings of the Illinois Supreme Court, along with links to legal research and guides for lawyers. But there are also useful tools for citizens wanting to find out more about nuances of the law. Some of these include a Juror Handbook, Illinois Child Support Information, and Becoming an Adult: Legal Rights & Responsibilities at Age 18.

The Illinois Supreme Court website also has a link to any of the Illinois Circuit Courts. Currently 15 of Illinois’ 23 Circuit Courts have websites, including Cook County, Lake County, Kane County, DuPage County, McHenry County and Kankakee County.

Continue reading "Illinois Courts: Using The Internet To Access Services and Information" »

Chicago's 7th U.S. Court of Appeals reversed a federal district judge's ruling that barred the Illinois product liability claim of Lenore Aebischer. In 1997 at age 44, Lenore underwent a hip replacement. But the prosthetic hip manufactured by defendant Stryker Corp. allegedly failed due to structural defects, and Lenore required a second replacement surgery as a result of the Illinois medical device liability.

Stryker Corp. moved to dismiss the complaint filed by Lenore because the 2-year statute of limitations had run when the case was filed in Chicago in 2005. In Illinois, typically the statute of limitations begins running from the date that the claimant should have known that there was a problem with the defective medical device. The Chicago district court found that in 2002 Lenore was aware that her hip problems were caused by a manufacturer's defect.

In 2001, Lenore saw her orthopedic surgeon for left hip pain and was told that her hip replacement might last 15-20 years. In 2002, the same doctor determined that her pain was caused by osteolysis and from particles of plastic that had broken loose from the prosthetic hip. In 2003, the surgeon performed a second hip replacement surgery to replace the failed original prosthesis. After the surgery, the surgeon told Lenore that the osteolysis was worse than he had originally thought and that the original hip device had "advanced or catastrophic failure".

Because of her surgeon's discoveries during her procedure in January, 2002, the Illinois federal district court said that the plaintiff was on "inquiry notice" that her injury might have been wrongfully caused based on the surgeon's explanation of the osteolysis and that particles of plastic from the prosthesis had gotten between that device and her hip bone.

Continue reading "Illinois Hip Replacement Product Defect Suit Survives After Statute of Limitations Runs: Re-Evaluation of When Discovered Injury" »

Part of being a Chicago trial lawyer is presenting your client's side of a story to a judge and jury. One way to do this is by submitting evidence during litigation, such as testimony, diagrams, and pictures. But what happens if a judge decides that you can't show some of your evidence? How do you make sure that your the jury understands your client's story?

Photographs can be a very persuasive way to drive a point home to the jury at trial. For example, if you want to demonstrate the horrific nature of a car crash then nothing gets this across better than photographs of the totalled car. Or if you're arguing that doctors at a local Chicago hospital dropped the ball and didn't prevent or treat your client's bed sores, then pictures of the exact size and nature of those sores will underscore how impossible they were to miss.

However, the argument against allowing such pictures is that they could sway the jury to the point that they ignore the facts before them and focus only on the visual story presented. It is up to the judge to ensure that both the plaintiff and defendant tell their story in a way that doesn't unduly prejudice the jury against the other side, see Dicosola v. Bowman (342 Ill App 3d 530). To do so a judge will typically only allow evidence that is relevant to the case and try to keep out unnecessary theatrics.

But aren't scene photographs and images of a car after a crash relevant to a case? Don't they allow the jury to get a better sense of what actually happened and place themselves in the scene? So why would such photos ever be barred from evidence for not being relevant?

Continue reading "Chicago Courts Limit Admissibility of Pictures at Trial: How Does This Effect Your Case?" »

Defendant Mancari's Chrysler Plymouth dealership in Cook County lucked out with an ideological “get out of trial free” card in a product liability case involving a car sold at his dealership. Murphy v. Mancari's Chrysler Plymouth, Inc. 2008 WL 927727.

The Illinois Appellate Court's clarification of section 2-261 of the Illinois Code of Civil Procedure makes it easier for non-manufacturers to be dismissed from strict product liability cases in Illinois. The relevant section states that

"A court shall not enter a dismissal order relative to any certifying defendant or defendants other than the manufacturer . . . where the plaintiff can show . . . That the defendant had actual knowledge of the defect in the product which caused the injury, death or damage". 735 ILCS 5/2-621(c)(2).

So if plaintiff could prove that the defendant knew about the product defect then the defendant could not be dismissed from case. However, Murphy takes this interpretation a step further to determine whether it is enough that defendant just knows about the alleged defect or whether they need to know that the defect makes the product unreasonably dangerous, too?

In Murphy, Plaintiff Joseph Murphy claimed that he was paralyzed in a rollover accident because his Sebring lacked a roll bar safety device. He alleged that Mancari’s Chrysler Plymouth sold him a Sebring that was unreasonably dangerous because it lacked a roll bar. Mancari confirmed that they knew that the vehicle did not have a roll bar, but still claimed that this did not make them directly responsible.

Continue reading "Product Liability Litigation Avoided by Cook County Car Dealership: Illinois Appellate Court Clarifies Product Defect Statute" »

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" »

On January 25, 2008, the Illinois Supreme Court ruled in Hudson v. City of Chicago that the re-filing of a voluntarily dismissed claim may be barred under res judicata when there is a previous involuntary dismissal of a different claim in the case.

Res judicata refers to an issue before the court that has already been decided on by another court for the same parties. In Hudson, res judicata applied because at least one claim had been involuntary dismissed in the prior case. The Court held that res judicata bars

not only every matter that was actually determined in the first suit, but also every matter that might have been raised and determined in that suit.

Oftentimes an attorney voluntary dismisses a claim when one of its other claims were dismissed in order to re-work the remaining claims and then re-file. However, attorneys now have to be careful not to fall under the banner of res judicata and thereby miss out on refiling their claims. And res judicata can even bar refiling when cases are dismissed "without prejudice", i.e. allowing for the refiling of suit against the defendant if the defendant doesn't follow through with the terms of settlement.

Continue reading "Hudson v. City of Chicago: Illinois Supreme Court Redefines Res Judicata" »