August 2010
FELA
Causation Experts Must State Detailed Reasons for Causation Opinions and not Just Conclusions, or Opinions Can be Stricken, Creating Basis for Summary Judgment
Meyers v. National Railroad Passenger Corp., No. 09-3323 (August 30, 2010) N.D. Ill., E. Div. Affirmed
- In this FELA case, the District Court was affirmed in its granting of summary judgment in favor of the railroad defendant, as the plaintiff's experts had failed to state proper foundational information in their Rule 26 disclosures, stating just conclusions as to the causal relationship between Plaintiff's employment and his alleged injuries without setting forth any detailed support for how experts arrived at their opinions. The Court held that these conclusions as to causation failed to meet standards for disclosure under Rule 26(a)(2), and said Rule applied to opinions of instant experts, even though said experts were plaintiff's treating physicians, where said opinions as to causation of injury were not generated at time treatment was rendered. . "When a party intends to introduce an expert witness, the party must comply with the disclosure requirements in Rule 26(a)(2) if the expert witness "is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony." Fed. R. Civ. P. 26(a)(2)(B). The disclosure must also include "a written report - prepared and signed by the witness." Id. In pertinent part, Rule 26(a)(2)(B) provides: "The written report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the data or other information considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them . . . ." Id. (emphasis added). The purpose of the report is to provide adequate notice of the substance of the expert's forthcoming testimony and to give the opposing party time to prepare for a response. Walsh v. Chez, 583 F.3d 990, 993 (7th Cir. 2009); Jenkins v. Bartlett, 487 F.3d 482, 487 (7th Cir. 2007). The consequence of non-compliance with Rule 26(a)(2)(B) is "exclusion of an expert's testimony unless the failure was substantially justified or is harmless.' " Gicla v. United States, 572 F.3d 407, 410 (7th Cir. 2009) (quoting Fed. R. Civ. P. 37(c)(1)).
Premises Liability / Open and Obvious / Summary Judgment / Negligence
Distraction Exception to Open and Obvious Defense Does Not Apply if Distraction Not Caused or Contributed to By Defendant
Angela Lake v. Related Management Company, L.P. , No. 4-09-0867 (August 30, 2010) Macon Co. Affirmed. 4th Dist.
- Plaintiff was injured when she stepped in a one-inch gap between concrete slabs on the sidewalk in front of her apartment building entrance. She fell while carrying a bag of groceries in each hand, when her boot heel caught between the concrete slabs of the sidewalk. Plaintiff had previously complained of the gap to the defendants. The trial court entered summary judgment for Defendants.
The Appellate Court held that even though Plaintiff had complained to them of the gap, she had walked over the gap many times in her five years she lived there, and Plaintiff herself created the distraction by choosing to carry the groceries which blocked her view of the gap. Defendants cannot be liable for Plaintiffs' choice, as they did nothing to cause, create, contribute to, or be responsible for the distraction which diverted her attention from the open and obvious condition.
Evidence / Miscellaneous Actions / Motions / Pleadings
Duty to Preserve Evidence Not Satisfied By Giving Opposition One Week to Inspect Product and Underlying Claim Must Proceed and Then Spoliation Claim Should Be Decided.
Brobbey v. Enterprise Leasing Company of Chicago, No. 1-08-3474 (August 27, 2010) Cook Co., 5th Div. (TOOMIN) Affirmed in part, reversed in part; remanded.
- Plaintiffs filed strict liability and negligence claims against rental company for injuries sustained in operation of a Chevy Astro van they rented from car rental company, claiming that accident was caused by a manufacturing defect causing van to wobble and jerk when braking. Plaintiffs later added a spoliation claim, as rental car company sold van at auction and it was later destroyed. Genuine issue of material fact existed as to driver's negligence and whether rental company's failure to exercise reasonable inspection caused the accident. Defendant may have discovered the defect with a reasonable inspection. Rental company in response to spoliation claim, cannot deny duty to preserve evidence by giving plaintiffs one week to inspect van prior to disposal. Plaintiff never responded because of severe injuries. The underlying negligence claim must proceed, and then the issue of spoliation should be decided, and spoliation claim may still survive even if negligence claim fails. (HOWSE and LAVIN, concurring.)
Supreme Court Rule 103(b) / Dismissal
Denying 103(b) Dismissal
Was Not an Abuse of Discretion Where Plaintiff Did Not Issue Initial Summons Until 4 ½ Months After Filing Complaint, Then Received Misleading Information Regarding Defendant's Address and Waiting 8 More Months to Issue an Alias Summons Before Serving Defendant
Denying 103(b) Dismissal
Was an Abuse of Discretion Where Plaintiff Failed to Issue Initial Summons, or Take Any Other Action, for 13 Months After Filing the Complaint
Christian v. Lincoln Automotive Company and Pentair, Inc. , No. 3-09-0689
(August 26, 2010) Peoria Co. (O'BRIEN) Certified question answered; affirmed in part and reversed in part. 3d Dist.
- See head notes above. Additionally, the policy favoring adjudication of controversies on the merits is
not an appropriate factor for consideration in objectively determining whether a plaintiff exercised reasonable diligence to obtain service on a defendant.
Insurance
Insurer for Subcontractor Had Duty to Defend Contractor Pursuant to Subcontractor's Policy That Named Contractor as Additional Insured and Pursuant to Work Agreement Between Subcontractor and Contractor
Pekin Insurance Company v. Pulte Home Corporation , No. 1-09-1708 (August 25, 2010) Cook Co., 3rd Div. (QUINN) Affirmed. 1st Dist.
- ComEd worker injured on home construction site when stepped into open sewer. General contractor tendered defense to insurer, which had issued policy to sewer subcontractor which named general contractor as additional insured. Insurer denied the tender and filed a Declaratory Judgment action.
Appellate Court held that since the sewer subcontractor could be found solely liable to the ComEd worker for his injuries, and thus any liability attributed to general contractor would arise solely as a result of the acts or omissions of the named insured. And, if that were true, the general contractor would be an additional insured under the terms of the endorsement to the insurance policy. Therefore, the insurance company owed general contractor a defense in the injury case. In determining the parties' intent, the Court examined the language of subcontractor agreement and the insurance policy.
Wrongful Death / Duty / Summary Judgment
Pharmacy Has No Duty, Pursuant to the Learned Intermediary Doctrine, to Warn Customer of Drug Interaction
DiGiovanni v. Albertson's, Inc. , No.1-09-1297 (August 25, 2010) Cook Co., 3rd Div. Affirmed. 1st Dist.
- Wrongful death suit against pharmacy that filled prescription for high blood pressure medication for patient known to be taking lithium for 10 years. Before filling the first prescription, pharmacy called doctor and warned of possible lithium toxicity from mixing the medications. Physician said he'd monitor. Patient died from lithium toxicity after pharmacy filled 2 prescriptions written by physician for high blood pressure medication and refilling the lithium prescription. Under learned intermediary doctrine, pharmacy had no duty to warn decedent of possible drug interaction, as this would impose duty on pharmacy greater than duty on drug manufacturer, as duty of warning patients as to prescription drugs belongs with physicians. Under the Happel v. Wal-Mart case, the Illinois Supreme Court held there was a narrow duty to warn the doctor of a known drug allergy that the patient had to a prescription because the pharmacy knew of the allergy and didn't call the doctor. In this case, the doctor was called so the Court granted summary judgment.
Dram shop Act
Dram shop Act Does Not Preempt Liability Under Theories of Independent Liability That Are Unrelated to the Provision of Alcohol.
Hicks v. Korean Airlines Co., No. 1-09-0542 (August 18, 2010) Cook Co., 3rd Div. (STEELE) Reversed and remanded.
- Here, the plaintiff filed a wrongful death suit against Korean Airlines, the employer of an intoxicated driver, claiming liability for negligence through respondeat superior, and also alleging Dram shop Act violations. The employee had been drinking at two gatherings of airline employees and executives, and the court found that a genuine issue of material fact existed as to whether the employee (who was also killed in vehicle collision) was acting within the scope of her employment at the time of the collision. The defendant argued that the Dram shop Act preempted all claims that were derived from acts of serving alcohol, but the Court held that the Act does not preempt claims based on legal theories that were independent from the Defendant's simple provision of alcohol. The Court reversed the granting of summary judgment as liability was allege to have been predicated upon the employee's negligent driving, not just the provision of alcohol, and there was a question of material fact as to whether she was in the course and scope of her employment at the time of the accident.
Tort Immunity
Common Carriers
Purchase of 10-Day Rail Pass Does Not Create Passenger Status
Non-Passengers Not Entitled to Exception to Common Carrier Exclusion from Tort Immunity Act
Del Real v. Northeast Illinois Regional Commuter Railroad Corp., No. 1-09-0948 (August 13, 2010) Cook Co., 5th Div. (FITZGERALD SMITH) Affirmed. (1st Dist.)
- In this case, the plaintiff filed suit for back injuries, claiming that she had slipped and fallen while attempting to enter a train platform owned and operated by Metra from a side of the platform which apparently did not have an operating stairway, although it had an old abandoned stairway when METRA took over the station. The plaintiff argued that she was a passenger and Defendant was a common carrier by virtue of the fact that she had purchased a 10-ride ticket previously. The Court dismissed the case, holding that Metra was a local public entity, and is immune from negligence claims under the Tort Immunity Act for its policy determination not to put a stairwell or other means of ingress on the north side of the platform. Since the plaintiff was simply intending to become a passenger, but had not yet become a passenger at the time of her accident, the exception under the Tort Immunity Act for common carriers did not apply because METRA was not acting as a common carrier for the plaintiff when she was injured. "In order to come within the definition of a passenger, it is not necessary for the individual to have come into physical contact with the train." Pence, 398 Ill. App. 3d at 17. " 'Illinois courts have long held that a contractual relationship between passenger and carrier begins when the passenger has presented himself at the proper place to be transported with the intention of becoming a passenger and is then either expressly or impliedly accepted by the carrier for transportation.' " Pence, 398 Ill. App. 3d at 17, quoting Skelton, 214 Ill. App. 3d at 572. Here, the court determined that Plaintiff was not an intended or permitted user of the property as she attempted to climb onto the platform at a location which had no operating stairway. Even though Plaintiff had purchased a 10-day Metra pass, she had not yet become a passenger at the time of her fall, as she was only attempting to board the platform and had not yet presented herself in a proper place to be transported, thus Tort Immunity Act barred her recovery.
Tort Immunity
IDOT Snowplow Operator Negligent Operation of Snowplow Cannot Be Separated from Those Duties that Are Within Scope of "Normal and Official Functions", so Tort Immunity Applies
Negligence, Immunity 2d Dist.
Shirley v. Harmon, No. 2-09-0772 (August 11, 2010) Kane Co. (BOWMAN) Affirmed.
- In this case, brought against an IDOT snowplow operator, the plaintiff sued for injuries sustained when the operator-defendant lost control of the snowplow, crossed the center line and collided with Plaintiff, who had pulled over to the side of her lane. The court noted that "An action will be considered against the State where: (1) there are no allegations that a state employee acted beyond the scope of his authority through wrongful acts; (2) the employee did not allegedly breach a duty owed to the public generally independent of his state employment; and (3) the complained-of actions involve matters ordinarily within the employee's normal and official functions with the State, citing Jinkins v. Lee, 209 Ill. 2d 320, 330 (2004). Regarding the relief sought in this case, the court held that "an action brought nominally against a State employee in his individual capacity will be found to be a claim against the State where a judgment for the plaintiff could operate to control the actions of the State or subject it to liability." Currie, 148 Ill. 2d at 158; see also Jinkins, 209 Ill. 2d at 330. T he court held that sovereign immunity did apply here, as the Defendant was plowing snow at the time, and the act of plowing could not be divorced from the act of navigating the snowplow. The duty that Defendant allegedly breached was to plow state roads in a safe manner, which was a unique duty imposed on him solely by virtue of his state employment; and a judgment for Plaintiff could operate to control the State's actions, i.e., IDOT policies and procedures for plowing snow.
Choice of Law / Product Liability
In Determining Which State's Substantive Law Applies, Illinois Courts Utilize the "Most Significant Relationship" Approach, and the State With the Most Significant Relationship is Presumed to Be the State Where the Tort Occurred.
Robinson v. McNeil Consumer Healthcare, (7th Cir. August 11, 2010) Appeal from N.D. Ill., E. Div.
- Plaintiff filed product liability suit against manufacturer of Children's Motrin after she developed toxic epidermal necrolysis after taking it. Plaintiff took the drug in Virginia, and later moved to Illinois. Illinois Northern District Court was correct in ruling that Virginia substantive law governed over Illinois law because the state with the most significant relationship, which is presumptively the place where the tort occurred, was Virginia. Applying Illinois law would encourage forum shopping. Unlike Illinois law, Virginia law rejects strict product liability so that a plaintiff has to prove negligence and deems contributory negligence a complete defense to a claim of negligence. In this case, however, the 7th Circuit opined that it would not have made a difference because there was enough evidence at trial to prove that the Plaintiff was more at fault than the Defendant, which would have resulted in a verdict for the Defendant in either state.
Admissions
In Order to Qualify as a Judicial Admission, the Attorney's Statement Must Be Deliberate, Clear, and Unambiguous.
Robinson v. McNeil Consumer Healthcare, (7th Cir. August 11, 2010) Appeal from N.D. Ill., E. Div.
- Defense attorney's statement during closing argument that, "We are, of course, not blaming Karen Robinson for her own injuries. We never have. We never will" was not a judicial admission that the Plaintiff was not contributory negligent. In order to qualify as a judicial admission, the attorney's statement must be deliberate, clear, and unambiguous. Here, the attorney was merely trying to explain that the defendants were not contending that the Plaintiff had been justly punished for being careless. This was not a deliberate, clear, and unambiguous statement that the Plaintiff was not contributory negligent.
Medical Malpractice / Product Liability / Res Ipsa Loquitur
Res Ipsa Loquitur Inapplicable Where the Injury Sustained Was Not of the Type Normally Caused By the Defendant's Negligence, and Where the Instrumentality that Allegedly Caused the Injury Was Not in the Defendant's Exclusive Control.
Raleigh v. Alcon Laboratories, (Ill. App. 1st Dist. August 6, 2010).
- Plaintiff underwent an intraocular lens implantation, and a few weeks later, a rare fungus was found in his eye requiring its removal. Plaintiff filed suit against the Hospital alleging, among other things,
res ipsa loquitur.
Res ipsa loquitur count against Hospital was properly dismissed as Plaintiff's own experts established that Plaintiff failed to prove that his injury was the type that would not have normally occurred in the absence of the Hospital's negligence (the lens may have been infected when it left the manufacturer), and that he was injured by an instrumentality within the Hospital's exclusive control (surgical suite, surgical personnel, surgical instruments, and lens all potential sources of fungus).
Causation / Medical Malpractice / Product Liability
Where There is Only a "Remote Possibility" that Defendant's Negligence Caused the Plaintiff's Injury, Summary Judgment is Proper.
Raleigh v. Alcon Laboratories, (Ill. App. 1st Dist. August 6, 2010).
- Plaintiff underwent an intraocular lens implantation, and a few weeks later, a rare fungus was found in his eye requiring its removal. Plaintiff filed suit against the Hospital alleging, among other things, medical negligence. Summary Judgment for Hospital on negligence count was properly granted because Plaintiff failed to present competent evidence of proximate cause as his own expert testified that it was a "remote possibility" that the surgical environment caused the infection.
Medical Malpractice / Preemption / Product Liability
A Plaintiff's State-Law Product Liability Medical Device Claim is Preempted By Federal Law Where the FDA Has Established Regulations that are Applicable to the Product at Issue and Where the Plaintiff Does Not Allege Violations of Any of Those FDA Regulations.
Raleigh v. Alcon Laboratories, (Ill. App. 1st Dist. August 6, 2010).
- Plaintiff underwent an intraocular lens implantation, and a few weeks later, a rare fungus was found in his eye requiring its removal. Plaintiff filed product liability suit against the lens manufacturer alleging strict liability and negligence. Summary Judgment for Manufacturer on both strict liability and negligence counts properly granted because his state law claims were preempted pursuant Medical Device Amendments of 1976 (21 U.S.C. §360k) to the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 301
et seq.) and
Riegel v.
Medtronic,
Inc., 552 U.S. 312 (2008). The state law claims were preempted because the FDA had established regulations and requirements that were applicable to the intraocular lens at issue, and the Plaintiff did not allege violations of any of those FDA regulations or requirements.
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