June 2010
Summary Judgment Appropriate When No Expert Evidence Presented to Support Product Liability Allegations
Products Liability/Negligence/Summary Judgment 1st Dist.
Salerno v. Innovative Surveillance Technology, Inc.
, No. 1-09-1402 (June 30, 2010) Cook Co., 2nd Div. (THEIS) Affirmed.
- Plaintiff, an investigator for the Cook County Sheriff's Department, injured his head after hitting it on a surveillance periscope in a surveillance van. He filed strict liability and negligence actions against the van's manufacturer. Court properly granted summary judgment on both counts, based on lack of evidence for both theories as the Plaintiff failed to present any expert testimony on any defect, standard of care or breach. Furthermore, Plaintiff's complaint included no allegations of manufacturing defect based on unreasonably dangerous conditions. Plaintiff abandoned claims of inadequate warnings, by conceding in reply brief that there is nothing to criticize in the periscope's design, and thus they are waived because no warning was necessary. Also, a product's open and obvious risk of harm is not an absolute defense to defective design theory of strict liability, but only a factor to be considered.
Arbitration / Discovery
Where a Party Fails to Comply With Discovery Orders, That Party May be Debarred From Rejecting an Arbitration Award.
Response to Requests to Admit Are Properly Deemed Admitted Where a Party Fails to Verify and Sign the Response.
Constitutional Right to Effective Assistance of Counsel is Not Applicable in Civil Cases.
Coleman v. Akpakpan, No. 1-09-2629 (Ill. App. 1st Dist. June 30, 2010).
- The trial court did not err when it debarred the defendant from rejecting the arbitration award because the defendant failed to comply with various trial court discovery orders and failed to take any action to vacate, modify, or otherwise correct the sanction for failing to comply. Moreover, the trial court did not err in deeming certain facts admitted where Defendant's response to Plaintiff's requests to admit was unverified and was signed only by Defendant's attorney. Finally, the Constitutional right to effective assistance of counsel is not applicable in civil cases.
Medical Malpractice / Motions / Pleadings
The Failure to Obtain Leave of Court to File Amended Complaint May Not Necessarily Result In a Nullity
Johnson v. Ingalls Memorial Hospital, No. 1-09-0422 (June 29, 2010).
- Plaintiff filed a wrongful death action and survival action for deceased infant. The trial court had subject matter jurisdiction to hear and determine the amended complaint (dropping a defendant, adding new defendants and adding new claims) despite plaintiff's failure to obtain leave of court to file it because it was a justiciable matter to which the court's original jurisdiction extended. The defendants appeared, filed answers, and filed numerous motions, including motions to dismiss and therefore forfeited any objection to personal jurisdiction. The failure to obtain leave of court to add a party is not a jurisdictional defect which renders the amendment of nullity. Rather, the failure to obtain leave of court is a procedural deficiency and a failure to timely object may result in forfeiture. The court relied on
Ragan v. Columbia Mutual Insurance Company, 183 Ill.2d 342 (1998).
Causation / Medical Malpractice
Expert's Opinion Regarding Causation May Not Allow Jury to Speculate
Johnson v. Ingalls Memorial Hospital, No. 1-09-0422 (June 29, 2010).
- In this case, there was no expert testimony that was presented that a referral by any defendant to a delivering OB would have led to the need for a cesarean section and therefore there was no evidence that the alleged deviations from the standard of care increased plaintiff's risk of harm. The expert's opinion would have left the jury to improperly speculate as to when definitive treatment would have been undertaken. The expert's opinion that if a c-section had been done sooner it would have been better without factual support, cannot create a question of fact and therefore summary judgment based upon the lack of proximate causation was proper. Note: The facts of this case were very specific. The court relied on
Johnson v. Loyola University Medical Center, 384 Ill.App.3d 115 (2008).
2-1401 Petition Properly Denied When Defendant Failed to Meet Burden to Establish Diligence
Dismissal 2d Dist.
Domingo v. Guarino
, No. 2-09-0852 (June 25, 2010) DuPage Co. (BOWMAN) Affirmed.
- Plaintiff voluntarily dismissed and later filed a virtually identical complaint for defects in construction of his home. In the first case, Defendant has won 3 separate motions to dismiss Plaintiff's Complaint. However, all were without prejudice. After the re-filing, Defendant failed to file an Answer to the re-filed complaint, and default judgment for $151,000 was entered, which Defendant petitioned to vacate per Section 2-1401. Appellate Court held that Trial Court properly denied petition to vacate default judgment, as Defendant did not meet his burden to establish diligence; he filed no affidavit as to his attempts to contact his attorney, delayed filing of petition to vacate, and did not show he made an excusable mistake and acted reasonably.
Res Judicata Does Not Apply Where Prior Case Was Dismissed Without Prejudice
Res Judicata
Domingo v. Guarino
, No. 2-09-0852 (June 25, 2010) DuPage Co. (BOWMAN) Affirmed.
- As prior dismissals of counts were without prejudice, res judicata did not bar consideration of the re-filed complaint. (Hudson v. City of Chicago claim splitting issues apply only where counts have been dismissed with prejudice, for final adjudication on the merits)
Causation / Damages
Where a Jury's Damages Award Does Not Bear Any Reasonable Relationship to the Injuries Sustained, the Damages Award Must Be Vacated.
Anderson v. Zamir
, (Ill. App. 5th Dist, June 22, 2010).
- Plaintiff injured her neck and shoulder in a car accident, which resulted in $28,804 in medical bills. At trial, the defendant admitted liability. Defendant conceded plaintiff's neck injury and causation. However, defendant disputed causation of plaintiff's shoulder injury. Plaintiff's treating physicians testified that the shoulder injury was casually related. The defense attorney cross-examined the treaters, but the treaters did not waver in their opinions. In addition, the defendant did not present any evidence that the shoulder injury was unrelated. The jury awarded Plaintiff $12,500, $5,000 of which was for medical bills. This verdict did not bear any reasonable relationship to the injuries sustained, and so the damages award was reversed.
Jury / Damages / Evidence
Jury Cannot Disregard Testimony that is Not Contradicted or Impeached
Anderson v. Zamir, No. 5-08-0542 (June 22, 2010) Jackson Co. (CHAPMAN) Reversed and remanded.
- In this case, the appellate court reversed a trial court's affirmance of a jury verdict which bore no relationship to the evidence. Plaintiff's action was brought to recover damages sustained as a result of personal injuries suffered as a result of a car accident. The defendant admitted liability, and while Defendant contested some of the injuries, Defendant offered no witnesses to contradict the testimony of the plaintiff's doctors, who all testified as to the injuries and damages sustained, the medical expenses incurred and their causal relationship to the accident. Despite the fact that there was uncontradicted testimony that supported medical expenses of $28,804, and that the plaintiff had suffered physical injuries that were caused by the accident, the jury awarded Plaintiff $12,500 (of which $5000 was for medical bills) for the damages sustained as a result of the car accident. The appellate court held that the verdict bore no reasonable relationship to the injuries, and reversed the damages award.
The amount of money a jury awards "is peculiarly an issue of fact for the jury to determine" and is entitled to substantial deference. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 470, 605 N.E.2d 493, 509 (1992); Zuder v. Gibson, 288 Ill. App. 3d 329, 334, 680 N.E.2d 483, 487 (1997). If the jury received proper instruction and otherwise had a reasonable basis for its award, the appellate court will not disturb the verdict. Lee, 152 Ill. 2d at 470, 605 N.E.2d at 510. Although there is no precise formula for determining if a monetary award is fair and reasonable, the following factors should be considered: the extent of the injuries suffered and the degree of the permanency of those injuries, the plaintiff's age, the possibility of future difficulties, the amount of medical expenses involved, and the restrictions upon the plaintiff's life as a result of the injuries suffered. Epping v. Commonwealth Edison Co., 315 Ill. App. 3d 1069, 1072, 734 N.E.2d 916, 918 (2000) (citing Richardson v. Chapman, 175 Ill. 2d 98, 114, 676 N.E.2d 621, 628 (1997)).
A jury's damages award cannot be overturned unless it is shown that the jury clearly ignored an established element of damages, that the verdict was the result of passion or prejudice, or that the award bears no reasonable relationship to the loss that was suffered. Zuder, 288 Ill. App. 3d at 334, 680 N.E.2d at 487 (relying on Gill v. Foster, 157 Ill. 2d 304, 315, 626 N.E.2d 190, 195 (1993)) Illinois has long held to the rule that "positive direct testimony may be contradicted and discredited by adverse testimony, circumstantial evidence, discrepancies, omissions, or the inherent probability of the testimony itself." Baker v. Hutson, 333 Ill. App. 3d 486, 493, 775 N.E.2d 631, 637 (2002). The jury does not have to believe a witness if the jury believes that the testimony is false based upon "all of the other evidence or the inherent improbability or contradictions in the testimony." Baker, 333 Ill. App. 3d at 493, 775 N.E.2d at 637. However, the jury is also not allowed to arbitrarily reject unimpeached testimony. Baker, 333 Ill. App. 3d at 493, 775 N.E.2d at 637 (citing Larson v. Glos, 235 Ill. 584, 587, 85 N.E. 926, 927 (1908)). If the testimony of a witness is not "contradicted by direct adverse testimony or by circumstances nor inherently improbable and the witness has not been impeached, the testimony cannot be disregarded by the jury." Baker, 333 Ill. App. 3d at 493, 775 N.E.2d at 637 (citing People ex rel. Brown v. Baker, 88 Ill. 2d 81, 85, 430 N.E.2d 1126, 1127 (1981)).
Dismissal / Jurisdiction / Motions
735 ILCS 5/2-619.1 Only Applies to Combinations of Section 2-615 Motions, Motions for Involuntary Dismissal or Other Relief Under Section 2-619, and Motions for Summary Judgment Under Section 2-1005.
Higgins v. Richards, No. 5-08-060 (Ill. App., 5th Dist., June 17, 2010).
- Defendant filed a combined motion to vacate default judgment (Section 2-1301(e)) and a motion to dismiss based on lack of personal jurisdiction (Section 2-301), but did not file it in parts specifying the statutory section under which each request for relief was being brought as required by 735 ILCS 5/2-619.1. It was error for the trial court to deny the defendant's motion to dismiss based on lack of jurisdiction on the basis of defendant's failure to comply with the specificity requirements of Section 2-619.1. Section 2-619.1 only applies to combinations of Section 2-615 motions, motions for involuntary dismissal or other relief under Section 2-619, and motions for summary judgment under Section 2-1005. Here, the defendant's Section 2-301 motion was combined with his 2-1301(e) motion. Thus, Section 2-619.1 was inapplicable and the defendant did not need to comply with its directives. Moreover, since defendant's only connection to Illinois was that it was Plaintiff's residence, Illinois Courts lacked jurisdiction over the defendant and his motion to dismiss on that basis should have been granted.
Duty / Insurance
Insurance Contracts Should Be Given Their Plain and Ordinary Meaning and Should Reflect the Intent of the Parties.
American Service Ins. v. China Ocean, No.1-08-1821 (1st Dist. June 16, 2010)
- In this declaratory judgment action, the auto policy contained a provision that said, "Each of the following is an insured . . . any other person or organization but only with respect to his or her liability because of acts or omissions of a named insured." Two defendants, semi trailer lessors/owners, who were not named insureds in the insurance policy, were nonetheless covered by the policy because their liability arose from the acts and/or omissions of a named insured, the driver of the semi.
Summary Judgment
Illinois Supreme Court Rule 191(a) Affidavits Must Not Consist of Conclusions; Rather, They Must Set Forth Facts Admissible in Evidence, and the Affiant Must Have Personal Knowledge of the Facts Alleged.
American Service Ins. v. China Ocean, No.1-08-1821 (1st Dist. June 16, 2010).
- Rule 191(a) affidavit filed by insurance company's litigation manger in support of its motion for summary judgment and argument in support of non-coverage was properly stricken. First, the affidavit was improperly full of conclusions. Second, there is no evidence that the litigation manager had personal knowledge of the insurance policy, its formation, or any other event at issue. The affidavit, in essence, was the litigation manger's personal interpretation of the policy.
Duty / Insurance
Insurance Company Cannot Discharge Its Duty to Defend By Depositing Policy Limits With the Court.
American Service Ins. v. China Ocean, No.1-08-1821 (1st Dist. June 16, 2010).
- Insurance policy stated, "the company will not defend any suit after it has paid the applicable limit of its liability for the accident which is the basis of the lawsuit." Thus, in order to end their duty to defend the underlying lawsuit, the insurance company filed an interpleader action to deposit the policy limits with the clerk of the court. Such action was improper. First, there had not been a settlement or judgment entered. Second, deposing a check with the clerk of the court does not constitute the policy limits being "paid" as required by the policy. Therefore, insurance company continued to have a duty to defend even if and after it deposited the policy limits with the clerk of the Court.
Attorney Fees / Costs / Insurance
An Evidentiary Hearing is Not Required in Order for a Court to Award Attorney Fees, Nor is the Court Required to Wait for the Underlying Case to Be Completed Before Making Such an Award.
American Service Ins. v. China Ocean, No.1-08-1821 (1st Dist. June 16, 2010).
- In finding that the insurance company breached its duty to defend, the trial court awarded the insured reimbursement attorney fees and costs. The fee and cost reimbursement award was made without an evidentiary hearing and before the underlying case concluded. Where the opposing party fails to present anything of substance in response to a fee petition, and fails to show that any opposing evidence could or would be presented, no evidentiary hearing is required. Moreover, a court need not wait until the conclusion of the underlying action to make such an award. Rather, reimbursement for defense costs should be provided as they are incurred.
Agency
Where a Principal Does Not Have the Right to Control the Method and Manner of An Agent's Work, or Where an Agent is Acting Outside the Scope of Its Agency, a Principle is Not Vicariously Liable for the Negligent Acts of the Agent.
Krickl v. Girl Scouts, No. 1-09-2454 (Ill. App. 1st Dist., June 15, 2010)
- Defendant, a volunteer assistant leader of a girl scout troop, injured a pedestrian while driving his van through a parking lot of a store where the girl scouts had just finished selling cookies. Defendant was on his way to take some of the girl scouts out to lunch. Summary judgment in favor of the Girl Scout Counsel was proper because the Defendant was not the acting as the agent of the Girl Scout Counsel at the time of the collision. First, the cookie sale had ended as the girls sold all of their cookies. Second, the tables and chairs had been picked up and loaded in a vehicle. Third, the Defendant was driving to lunch away from the site of the sale. Fourth, the lunch did not further the business of the Girl Scout Counsel. Thus, the Girl Scout Counsel had no right to control the method and manner in which Defendant performed his work. Even assuming that the Defendant was acting as the agent, he was nonetheless acting outside of the scope of his agency at the time of the collision. The Girl Scout Counsel did not instruct Defendant to go to lunch, and the lunch was a voluntary, after the sale, activity.
Jury Instructions / Medical Malpractice / Causation Pleadings
There Must Be Evidence to Support Sole Proximate Cause Instruction, But For Reversible Error, The Plaintiff Must Also Show Prejudice
Robinson v. Boffa, No. 1-07-1128 (1
st Dist., June 14, 2010).
- Jury in medical malpractice case rendered a
general verdict for the defendant-surgeon in action alleging that the surgeon performed a second surgery to remove a cancerous tumor too soon (5 days) after the initial surgery removing a tissue mass from the colon. Plaintiff contended that the stress of the second surgery is what caused the plaintiff's death. The defendant-surgeon argued that his failure to remove the cancerous tumor during the first surgery was not negligent because he was misled by the colonoscopy report as to the location of the tumor. The plaintiff's main contention on appeal was that the trial court erred in instructing the jury with the long form of IPI Civil No. 12.04 and No. 12.05 regarding proximate cause. The following instruction was provided by the trial court:
"More than one person may be to blame for causing an injury. If you decide that the defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the lawsuit may also have been to blame.
However, if you decided that the sole proximate cause of the injury to the plaintiff was the conduct of some other person other than defendant, then your verdict should be for the defendant."
The court also provided the following instruction:
If you decide that the defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may also have been the cause of the injury.
However, if you decide that the sole proximate cause of injury to the plaintiff was something other than the conduct of the defendant, then your verdict should be for the defendant."
The plaintiff argued that the trial court erred in tendering the second paragraph of each of these instructions. The notes for each instruction indicate that the second paragraph should be given only where there is evidence tending to show that the sole proximate cause of the occurrence was a third person or something other than the conduct of the defendant.
In this case, the defendant sought to admit evidence that the sole proximate cause of the decedent's death was the multi-system failure secondary to congestive heart failure, diabetes, and renal failure. Also, or in the alternative, the defendant argued that the doctor who performed the colonoscopy was negligent in failing to precisely pinpoint the location of the cancerous tumor in his colonoscopy report. Defendant argued that the decedent was required to undergo a second colon surgery because the colonoscopy report misled the defendant-surgeon as to the precise location of the tumor during the first surgery.
Plaintiff argued that the doctor's alleged negligence with regard to the colonoscopy and the colonoscopy report was not a legal cause of the decedent's death and the Appellate Court agreed. A defendant's acts are a legal cause only if they are so closely tied to the plaintiff's injury that he should be held legally responsible for it. Legal cause is essentially a question of foreseeability. To establish legal cause, the injury must be foreseeable as the type of harm that a responsible person would expect to see as a likely result of his or her conduct. In this case, even if the doctor who performed the colonoscopy could have foreseen that a surgeon would rely on a colonoscopy report to locate a cancerous legion, the court concluded that the doctor could not have reasonably foreseen that a surgeon would rely on the colonoscopy report to conclusively determine if a suspected tissue mass was in fact cancerous. The defendant surgeon's subsequent failure to conclusively determine if the suspected tissue mass was in fact cancerous was an unforeseen intervening omission that broke the chain of causation between the doctor who performed the colonoscopy's alleged negligence and the decedent's death. Even if the colonoscopy report initially misled the defendant as to the precise location of the tumor, the defendant-surgeon had an independent duty and responsibility to act on his own knowledge to conclusively determine if the suspected tissue mass was cancerous. Therefore, the alleged negligence of the doctor who performed the colonoscopy could not have been a proximate cause of the decedent's death.
Since the court concluded that the trial court erred in tendering the second paragraph of the IPI instructions because there was no evidentiary foundation to support that the doctor who performed the colonoscopy was the sole proximate cause of the decedent's death, the court had to determine whether there was any prejudice in providing these erroneous instructions. A reviewing court ordinarily would not reverse a trial court for giving faulty instructions unless they clearly misled the jury and resulted in prejudice to the appellant. In this case, the plaintiff did not establish that she was prejudice by the trial court's erroneous instructions because there existed another defense theory upon which the jury could have determined that the defendant was not liable for the decedent's death. "Under the two issue rule" a general verdict will not be disturbed on review if the case involves two or more causes of action or defenses and there was sufficient evidence to support at least one of the issues or defenses presented to the jury free from error. When a jury returns a general verdict for the defendant, the two issue rule is applied by focusing on the defenses. Therefore, where two or more defense theories are presented to the jury and it returns a verdict for the defense, an appellant claim of error as to one defense theory will not result in reversal since the verdict may stand based on another theory.
In this case, the defense asserted two proximate cause defenses. First, the decedent's preexisting health problems were a proximate cause of his death. Second, the failure of the doctor who performed the colonoscopy to precisely pinpoint the location of the tumor in his colonoscopy report. Because the jury rendered a general verdict for defendant and could have relied upon the first proximate cause defense to find no liability and because there was ample evidence supporting this defense, the court could not say the plaintiff was prejudiced by the trial court's erroneous instructions.
Finally, the element of proximate cause is an element of the plaintiff's case. In a medical malpractice action, the plaintiff bears the burden of proving that the defendant's breach of the applicable standard of care proximately caused the injury at issue. The defendant is not required to plead lack of proximate cause as an affirmative defense.
Medical Malpractice / Experts
The Use of a Medical Journal Article on Cross-Examination of an Expert is Permissible, When Only the Reliability of the Author is Established and Not the Reliability of the Particular Article or Text Itself
Rule 213's Disclosure Requirements Do Not Apply to the Cross-Examination of an Opposing Party's Opinion Witness.
Objection to Article's Lack of Authoritativeness Requires Specific Objection, or It Is Waived.
Stapleton v. Moore, No. 1-09-0381 (June 11, 2010) Cook Co., 5th Div. (TOOMIN) Affirmed.
- In this appeal of a defense verdict in a birth trauma medical malpractice case,
the court was asked to determine whether the use of a medical journal article on cross-examination of an expert is permissible, when only the reliability of the author is established and not the reliability of the particular article or text itself. The plaintiff asserted the following errors: (1) the trial court erred in allowing defendant to use a journal article in cross-examining plaintiff's expert because,
inter alia, (1) the article was not disclosed prior to trial; (2) the trial court erred in instructing the jury as to the proper standard of care; (3) the trial court erred in granting defendant's motion
in limine, barring any testimony as to whether an "arrest of labor" took place; and (4) the testimony of the attending resident doctor, Dr. Meininger, at trial that his medical record notation was in error violated Supreme Court Rule 213 (210 Ill. 2d R. 213). (Arguments 2,3 and 4 were fact-specific to the case, and were either determined to be waived or consistent with the evidence, and will not be discussed here.) Plaintiff's expert was Dr. Stuart Edelberg, an obstetrician who was well-known to base his opinions on the cause of brachial plexus injuries upon the statistical likelihood (even without other evidence documenting) of the employment of excessive traction.
Plaintiff first asserted that the trial court erred in allowing the defense to employ the journal article, H. Lerner and E. Salamon, Permanent Brachial Plexus Injury Following Vaginal delivery Without Physician Traction or Shoulder Dystocia, American Journal of Obstetrics and Gynecology (March 2008), on cross-examination of plaintiff's expert, Dr. Edelberg. Plaintiff maintained that the article was misleading, probably fraudulent, and not disclosed prior to trial in accordance with Supreme Court Rule 213 (210 Ill. 2d R. 213). Plaintiff also asserts that the trial court erred in limiting plaintiff's cross-examination of defendant's expert, Dr. Neerhof, concerning the Lerner article.
The first reaction of the Appellate Court to Plaintiff's arguments was a note that: "An unbroken line of precedent holds that the admission of evidence and the scope of cross-examination are issues within the sound discretion of a trial court, and a reviewing court will not reverse such rulings absent an abuse of discretion. See Snelson v. Kamm, 204 Ill. 2d 1, 33, 787 N.E.2d 796, 814 (2003); People v. Ward, 101 Ill. 2d 443, 455-56, 463 N.E.2d 696, 702 (1984), citing Veer v. Hagemann, 334 Ill. 23, 28, 165 N.E. 175, 177 (1929), Bosel v. Marriott Corp., 65 Ill. App. 3d 649, 654, 382 N.E.2d 587, 591 (1978), and Fullerton v. Robson, 61 Ill. App. 3d 93, 96, 377 N.E.2d 1044, 1047 (1978). See also Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 102, 658 N.E.2d 450, 459 (1995), citing Sweeney v. Matthews, 46 Ill. 2d 64, 71, 264 N.E.2d 170, 173 (1970). In addition, the Court held that while Plaintiff did object to the use of the article pursuant to Supreme Court Rule 213, Plaintiff had NOT objected to the use of the article based upon its lack of authoritativeness, and so had waived that objection. "A party is required to make specific objections to evidence, based on particular grounds, and the failure to do so results in a waiver of objections as to all other grounds not specified or relied on. Barreto v. City of Waukegan, 133 Ill. App. 3d 119, 130, 478 N.E.2d 581, 589 (1985).
Historically, a learned text is admissible for impeachment on cross-examination in any of the following three circumstances: (1) the trial court takes judicial notice of the author's competence, (2) the witness concedes the author's competence, or (3) the cross-examiner proves the author's competence by a witness with expertise in the subject matter. Downey, 384 Ill. App. 3d at 382, 895 N.E.2d at 297, citing Bowman, 366 Ill. App. 3d at 587, 852 N.E.2d at 392. The Court reviewed the history of impeaching expert witnesses since the Darling case, and noted in particular that "an expert witness at trial may establish the authoritativeness or reliability of an author in the relevant field; the rule is not restricted to only proving the authoritativeness of treatises, articles and texts." Here, Defendant's expert, Dr. Neerhof, testified that he found Dr. Lerner to be a reliable authority. Accordingly, impeachment through the use of Lerner's views in his article was proper given that Neerhof recognized Lerner as a reliable authority in the field." Since Defendant's expert had testified that he considered Dr. Lerner, the author of the article, to be "a reliable authority in the field of shoulder dystocia and brachial plexus injuries", the Court held that the article's authoritativeness had been adequately established. "A medical treatise or article may be proven to be authoritative on such cross-examination where "the cross-examiner proves the author's competence by a witness with expertise in the subject matter." Bowman v. University of Chicago Hospitals, 366 Ill. App. 3d 577, 587, 852 N.E.2d 383, 392 (2006), citing Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326, 336, 211 N.E.2d 253, 259 (1965).
With respect to Plaintiff's argument that the article had not been disclose pursuant to SCR 213, the Court was clear: Rule 213 simply does not apply to the cross examination of opposing experts: "The disclosure requirements of Rule 213 simply do not apply to cross-examination of an opposing party's opinion witness. Skubak v. Lutheran General Health Care Systems, 339 Ill. App. 3d 30, 32, 790 N.E.2d 67, 70 (2003), citing Maffett v. Bliss, 329 Ill. App. 3d 562, 577, 771 N.E.2d 445, 458 (2002). "Supreme Court Rule 213(g) does not require that a party disclose journal articles that the party intends to use in cross-examining the opposing party's opinion witness." Maffett v. Bliss, 329 Ill. App. 3d 562, 577, 771 N.E.2d 445, 458 (2002). As the Maffet court recognized, "indeed, none of Rule 213's disclosure requirements applies to cross-examining an opposing party's opinion witness." Maffett, 329 Ill. App. 3d at 577, 771 N.E.2d at 458, citing 177 Ill. 2d R. 213(g). Addressing the dissent's argument, that the lack of disclosure resulted in an unfair surprise to the opponent, the Court looked to the language of Rule 213 itself, which specifically allows the eliciting of even new, previously undisclosed, opinions to be elicited on cross examination: "Without making disclosure under this rule, however, a cross-examining party can elicit information, including opinions, from the witness." 210 Ill. 2d R. 213(g). In fact, the Court noted that the surprise factor was an important tool of cross-examination: "If the cross-examiner, to use a cliché, must telegraph his punch, cross-examination would lose its effectiveness. *** By eliminating the spontaneity, we would certainly avoid surprises. We may also be limiting the ability to ascertain the truth." ', citing Maffett, 329 Ill. App. 3d at 577." Skubak, 339 Ill. App. 3d at 37, 790 N.E.2d at 74.
Plaintiff then argued that she was improperly restricted in her own cross-examination of Defendant's expert as to the reliability of the Lerner article. However, the Court found that the trial court had properly exercised its discretion in granting in part and denying in part defendant's motion in limine to prevent cross-examination of Dr. Neerhof concerning the article to prevent a "trial within a trial." The trial court permitted inquiry as to whether Neerhof was aware that the co-author of the Lerner article was a defendant in a medical malpractice case, that Dr. Lerner was the retained expert in that case, and that the ethical procedures regarding the article and its use in another trial are the subject of investigation. The trial court did not allow only one further question, "Are you aware that the record indications for shoulder dystocia were altered and deleted by the defendant physician?" in that case. Then the court sustained an objection to questioning concerning the investigation of that case based on foundation, hearsay, and relevance. The Appellate Court found that further questions concerning the specific factual details of alterations to the medical records in the case study would not have had any tendency to make the existence of any fact of consequence to the resolution of the case sub judice more or less probable. The trial court properly refused to allow further questioning concerning the alteration of records in that other case because "going into what the records in another trial showed" was "too far." However, the court ruled that plaintiff could ask whether Dr. Neerhof was aware there was an alteration of the medical records in that case and allowed ample cross-examination regarding this issue. In addition, the Court concluded that it was highly unlikely that the jury based its verdict solely on the Lerner article, or that the verdict would have been different had plaintiff been allowed to use the article to cross-examine defendant's expert, and found no prejudice resulted from the trial court's rulings regarding the Lerner article.
Affirming the trial court, the Appellate Court held that the u se of a medical journal article in cross-examining an expert IS permissible, when the reliability of the author is established, even though the reliability of the particular article or text itself has not been established. In addition, the Court held that Rule 213's disclosure requirements do not apply to the cross-examination of an opposing party's opinion witness. Justice Lavin wrote a blistering dissent, which criticizes the majority opinion for its "hypertechnical jurisprudence", and is well-worth the read. In particular, he criticized the majority's conclusion that no specific objection had been raised by Plaintiff to the authoritativeness of the Lerner article (and he quoted liberally from the transcript of Plaintiff's objections).
Justice Lavin stated what would appear to have been obvious to the majority: "In the case sub judice, defendant did not disclose the name of any witness who would testify that the article was, in fact, authoritative. The method that defendant utilized was to cross-examine plaintiff's expert with the article, despite the fact that plaintiff's expert specifically did not believe that the article was reliable because the co-authors failed to disclose, inter alia, that the article was based on litigation in which one testified as an expert for the other. In order to provide the necessary foundation, defense counsel chose to use her expert, but that witness, Dr. Neerhof, did not testify that the article itself was reliable or authoritative. He merely testified that one of its authors was a reliable authority in the field. This foundation might barely pass muster in some circumstances, but it is completely inadequate here because of the article's numerous credibility and reliability problems that were brought to the trial court's attention. Just saying that a doctor is reliable does not mean that everything he writes is reliable. This article in this case is exquisite proof of the truth of that statement. In my view, the trial court's ruling was reversible error because defendant was allowed to repeatedly utilize the article in cross-examination without a sentence of testimony stating that the article itself was reliable. The argument that the use of the article was merely impeaching as opposed to substantive evidence lacks merit when one reads the rather effective drilling of the expert with the article's potent words on the most important issues in this medical malpractice trial. Sanctioning this practice could empower a party to marshal stacks of articles for use in cross-examination of her opponent's expert, without disclosing a single witness who would vouch for the reliability or authoritativeness of any article. One can easily imagine a scenario where numerous articles are handed over just before trial, without any direction as to which might actually be utilized during cross-examination, not to mention who might supply the necessary foundation for the authoritativeness of the article. Forcing one's opponent to absorb this level of technical information while waiting to see which specific article is utilized and which expert might vouch for its reliability might strike some as clever strategy, but it is inconsistent with the purpose of discovery and is a straightforward recipe for incurable prejudice.
Summary Judgment Proper Based Upon Prior Release Signed by Plaintiff
Release / Pleadings/Summary Judgment 1st Dist.
Hamer v. City Segway Tours of Chicago, LLC
, No. 1-08-3371 (June 10, 2010) Cook Co., 4th Div. (NEVILLE) Affirmed.
- Plaintiff filed suit for injuries sustained from falling off Segway during City Segway Tour, while going up small grassy hill. Trial court granted summary judgment based upon a previously signed Release. Plaintiff had signed a release, which clearly applies, with sufficient particularity, to occurrences described in her complaint, including that employee should not have encouraged her to ride up the grassy hill. Plaintiff forfeited right to have appellate court review trial court's denial of her motion to amend complaint as proposed amended complaint was not contained in record on appeal.
Duty 5th Dist.
Employer Had Duty to Family of Employee to Protect From Foreseeable Risk of Harm From Asbestos Exposure.
Simpkins v. CSX Corp.
, No. 5-07-0346 (June 10, 2010) Madison Co. (CHAPMAN) Reversed and remanded.
- Ex-wife of former employee of defendant sued for injuries as a result of exposure to asbestos. Her ex-husband brought home the asbestos from work on his clothes for several years while they were married and he worked for the defendant.
The Appellate Court held that the employer has a duty to protect the family of its employee from the dangers of asbestos brought home on the work clothes of the employee. Risk of harm to family members was foreseeable at the time employee worked for employer, and likelihood of serious or fatal injury to persons foreseeably exposed to asbestos is substantial enough to warrant imposition of duty. * This decision has a good explanation of the imposition of duty under a general negligence theory.
Negligence
Home Builder Was Entitled to Summary Judgment Because of General Rule That Vendors of Real Property Are Not Liable For Injuries Subsequent to Transfer of Property and Plaintiff Failed to Prove An Exception Sec. 353 of the Restatement (Second).
Tindle v. Pulte Home Corp.,
No. 09-2888 (June 9, 2010) N.D. Ill., E. Div. Affirmed.
- In action by plaintiff (purchaser of defendant's home) seeking recovery for injuries sustained when plaintiff fell into concealed hole under sod in backyard of new home, summary judgment for defendant-home builder was proper. Under the general rule against liability under Illinois law, the vendor of real property is ordinarily not liable for personal injuries sustained subsequent to transfer of property. Further, plaintiff did not satisfy requirement for exception to general rule under section 353 of the Restatement (Second), because plaintiff had reason to know of dangerous condition of backyard due to presence of sink holes in other parts of plaintiff's property, and where plaintiff failed to show that defendant knew or had reason to know of dangerous condition at time of sale of home.
Criminal / Duty / Minors / Pleading / Statutes
The Fact That There is No Social Host Liability in Illinois Does Not Affect a Voluntary Undertaking Theory That is Not Premised or Dependant On the Defendants' Actions as Social Hosts.
Bell v. Hutsell, No.2-09-0577 (2nd Dist. June 9, 2010).
- Parents permitted their son to throw a party at their home, but told him that no alcohol was allowed and that they would be closely monitoring the party to make sure no such alcohol was present or being consumed. One of the underage partygoers became intoxicated and killed himself and a passenger in motor vehicle collision after leaving the party. The decedent's parents brought suit against the homeowners alleging, among other things, breach of a voluntary undertaking to ensure no alcohol was present at there son's party and civil liability for a violation of criminal statute - Liquor Control Act. The trial court dismissed the complaint in its entirety on the basis that there is no social host liability in Illinois. The Appellate Court affirmed as to those counts dealing with the Liquor Control Act relying on
Charles v. Seigfried, 165 Ill. 2d 482 (1995) and
Wakulich v. Mraz, 203 Ill. 2d 223 (2003), which both declined to create a civil cause of action where social host liability violated the Liquor Control Act. However, the Court reversed the dismissal of the voluntary undertaking counts because they were not premised on social host liability. As alleged, the Defendants were not social hosts because they did not directly or indirectly give, sell, or deliver alcohol, they did not store the alcohol, and they did not affirmatively permit alcohol consumption. Rather, it was alleged that defendant voluntarily undertook the duty to prevent the consumption of alcohol on their premises and that they negligently performed that duty. Since their voluntary undertaking theory did not hinge on Defendants' actions as social hosts, those counts should not have been dismissed.
Nursing Home Care Act / Arbitration 3d Dist.
Arbitration Agreement, Which Was a Separate Document From Nursing Home Contract, Even Though Executed the Same Day, Did Not Apply to the Plaintiff's Lawsuit Arising Out of the Nursing Home Care Because the Two Separate Documents Did Not Reference Each Other and/or Incorporate the Other by Reference.
Peterson v. Residential Alternatives of Illinois, Inc.
, No. 3-09-0743 (June 7, 2010) Peoria Co. (WRIGHT) Reversed and remanded.
- Plaintiff sued nursing home for negligence and wrongful death of elderly resident. The trial court found that the arbitration agreement, executed on same day as nursing home contract, applied to remove the lawsuit from the court. However, the Appellate Court held that the language of arbitration agreement does not contain clearly expressed intent to arbitrate controversies arising out of the nursing home care contract and the nursing home care contract does not contain any reference to the arbitration agreement.
Legal Malpractice.
Union Planters Bank, N.A. v. Thompson Coburn LLP, No. 5-08-0497 (June 3, 2010) 5th Dist Madison Co. (WEXSTTEN) Affirmed.
- In an extremely complex factual setting, arising from the misappropriation of several parties' funds through the financial misdealings between various entities involved in different aspects of structured settlements, the Plaintiff bank (previously a trust company) filed a legal malpractice action against its attorneys for $11.78 million in damages for what it had paid in settlement and legal expenses in connection with transactional work for the bank's termination as a trustee and subsequent transfer of trust funds. At trial, the jury rendered a verdict for the plaintiff bank for $3.65 million. It was alleged that the structured-settlement company had schemed to defraud several personal injury plaintiffs of their settlements. The case decision was limited to transaction-based legal malpractice cases, and found that the law firm had failed to properly advise the trust company in how to terminate its position as trustee while exposing it to the least amount of risk, and was therefore liable for reasonable exposure and expenses to which company was subjected. The court addressed several concepts important to legal malpractice cases:
"To prevail on a legal malpractice claim, the plaintiff client must plead and prove that the defendant attorneys owed the client a duty of due care arising from the attorney-client relationship, that the defendants breached that duty, and that as a proximate result, the client suffered injury." Tri-G, Inc., 222 Ill. 2d at 225.
"The injury in a legal malpractice action is not a personal injury, nor is it the attorney's negligent act itself." Tri-G, Inc., 222 Ill. 2d at 226. "Rather, it is a pecuniary injury to an intangible property interest caused by the lawyer's negligent act or omission." Tri-G, Inc., 222 Ill. 2d at 226.
"The fact that the attorney may have breached his duty of care is not, in itself, sufficient to sustain the client's cause of action." Tri-G, Inc., 222 Ill. 2d at 226. "Even if negligence on the part of the attorney is established, no action will lie against the attorney unless that negligence proximately caused damage to the client." Tri-G, Inc., 222 Ill. 2d at 226. "The existence of actual damages is therefore essential to a viable cause of action for legal malpractice." Tri-G, Inc., 222 Ill. 2d at 226 (citing Northern Illinois Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 306-07 (2005)).
Causation requires both proof of "cause in fact" and proof of "legal cause." Thackerv. UNR Industries, Inc., 151 Ill. 2d 343, 354 (1992). There are generally two tests used by courts when considering cause in fact: (1) the traditional "but for" test and (2) the "substantial factor" test. Thacker, 151 Ill. 2d at 354. Under the but-for test, "a defendant's conduct is not a cause of an event if the event would have occurred without it." Thacker, 151 Ill. 2d at 354. Under the substantial-factor test, "the defendant's conduct is said to be a cause of an event if it was a material element and a substantial factor in bringing the event about." Thacker, 151 Ill. 2d at 354-55. Magna in the present case sought to prove causation through the but for test.
"Legal cause 'is essentially a question of foreseeability: a negligent act is a proximate cause of an injury if the injury is of a type which a reasonable man would see as a likely result of his conduct.' " Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 456 (1992)(quoting Masotti v. Console, 195 Ill. App. 3d 838, 845 (1990)). "Thus, an injury will be found not to be within the scope of the defendant's duty if it appears 'highly extraordinary' that the breach of the duty should have caused the particular injury." Lee, 152 Ill. 2d at 456.
"Illinois law does not require unequivocal or unqualified evidence of causation." Donaldson. Central Illinois Public Service Co., 199 Ill. 2d 63, 91 (2002). We acknowledge that in malpractice cases based upon the attorney's conduct during litigation, i.e., the prosecution or defense of a prior claim, a plaintiff must generally prove a case within-a-case to establish proximate cause. Governmental Interinsurance Exchange v. Judge, 221 Ill. 2d 195, 200 (2006); Tri-G, Inc., 222 Ill. 2d at 226. "This is required because of the damages element of the action; no malpractice exists unless counsel's negligence has resulted in the loss of an underlying action." Beastall v. Madson, 235 Ill. App. 3d 95, 100 (1992). "The objective is to establish what the result should have been ***." (Emphasis in original.) Nika v. Danz, 199 Ill. App. 3d 296, 308 (1990). We hold, however, that proving a case-within-a-case is not always required in transaction-based legal malpractice cases where damages can otherwise be established. See Glass v. Pitler, 276 Ill. App. 3d 344, 351 (1995) ("If damages resulting from the legal malpractice action can be otherwise factually established, a judicial determination in the underlying action is not required").
"an attorney's liability for failing to advise a client of the foreseeable risks attendant to a given course of legal action is not predicated upon the impropriety of the recommended course of action; rather, it is predicated upon the client's exposure to a risk that the client did not knowingly and voluntarily assume." Metrick, 266 Ill. App. 3d at 654-55."Consequently, to establish the element of proximate cause, it is necessary for the client to both plead and prove that had the undisclosed risk been known, he or she would not have accepted the risk and consented to the recommended course of action." Metrick, 266 Ill.App. 3d at 655. "Such is not the case, however, when the course of action the attorney recommends is in itself improper under the circumstances presented." Metrick, 266 Ill. App.3d at 655. "If an attorney's advice falls below the standard of reasonable legal services, any damages which proximately flow from the client's acceptance of that advice are recoverable in a negligence action against the attorney." Metrick, 266 Ill. App. 3d at 655.where an attorney's neglect is not a direct cause of the legal expenses incurred by the plaintiff ( i.e., the plaintiff prevails when sued or loses for reasons other than incorrect legal advice), the attorney fees incurred are generally not actionable. Since it is also possible the former client will prevail when sued by a third party, damages are entirely speculative until a judgment is entered against the former client or he is forced to settle" (emphasis in original)).
'The issue of proximate causation in a legal malpractice setting is generally considered a factual issue to be decided by the trier of fact' " (quoting Renshaw v. Black, 299 Ill. App. 3d 412, 417 (1998)))."A plaintiff in a legal malpractice suit is not required to prove to a certainty that he would have won (or lost less) had it not been for the negligence of its lawyer, but he must show that a victory of some sort, even if just partial, was more likely than not"). This is nothing more than the long-standing principle that "where the natural and proximate consequences of a wrongful act have been to involve the plaintiff in litigation with others, there may be a recovery in damages against the author of such act, measured by the reasonable expenses incurred in such litigation" ( Ritter v. Ritter, 381 Ill. 549, 554-55 (1943)).
"Collateral estoppel is an equitable doctrine that prevents a party from relitigating an issue that has been decided in a prior proceeding." Preferred Personnel Services, Inc. v. Meltzer, Purtill & Stelle, LLC, 387 Ill. App. 3d 933, 944 (2009). "When properly applied, collateral estoppel, also referred to as issue preclusion, promotes fairness and judicial economy by preventing the relitigation of issues that have already been resolved in earlier actions." Du Page Forklift Service, Inc. v. Material Handling Services, Inc., 195 Ill. 2d 71, 77 (2001). "Collateral estoppel may be applied when [1] the issue decided in the prior adjudication is identical with the one presented in the current action, [2] there was a final judgment on the merits in the prior adjudication, and [3] the party against whom estoppel is asserted was a party to, or in privity with a party to, the prior adjudication." Du Page ForkliftService, Inc., 195 Ill. 2d at 77. "In order to operate as an estoppel, the facts sought to be relitigated must have been specifically litigated and necessarily decided." Gelsomino v. Gorov, 149 Ill. App. 3d 809, 812 (1986) (citing Oberman v. Byrne, 112 Ill. App. 3d 155, 160 (1983)). "There must have been a decision with respect to a specific fact in the prior judgment that was material and controlling in that case and also material and controlling in the pending case." Gelsomino, 149 Ill. App. 3d at 812. " 'It must also conclusively appear that the matter of fact was so in issue that it was necessarily determined by the court rendering the judgment interposed as a bar by reason of such estoppel.' " Gelsomino, 149 Ill. App. 3d at 812-13 (quoting People exrel. Chicago & Eastern Illinois R.R. Co. v. Fleming, 42 Ill. 2d 231, 235 (1969)). "Nonetheless, even where the threshold elements of the doctrine are satisfied and an identical common issue is found to exist between a former and current lawsuit, collateral estoppel must not be applied to preclude parties from presenting their claims or defenses unless it is clear that no unfairness results to the party being estopped." Preferred Personnel Services, Inc., 387 Ill. App. 3d at 944-45 (citing Kessinger v. Grefco, Inc., 173 Ill. 2d 447, 467-68 (1996)).
"It is well established that, in an appeal from a jury verdict, a reviewing court may not simply reweigh the evidence and substitute its judgment for that of the jury." Snelson v.Kamm, 204 Ill. 2d 1, 35 (2003). "Indeed, a reviewing court may reverse a jury verdict only if it is against the manifest weight of the evidence." Snelson, 204 Ill. 2d at 35. "A verdict is against the manifest weight of the evidence where the opposite conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary, and not based upon any of the evidence." Snelson, 204 Ill. 2d at 35."The determination of whether a new trial should be granted rests within the sound discretion of the trial court, whose ruling will not be reversed unless it reflects an abuse of that discretion." Snelson, 204 Ill. 2d at 36. " 'If the trial judge, in the exercise of his discretion, finds that the verdict is against the manifest weight of the evidence, he should grant a new trial; on the other hand, where there is sufficient evidence to support the verdict of the jury, it constitutes an abuse of discretion for the trial court to grant a motion for a new trial.' " Snelson, 204 Ill. 2d at 36 (quoting Maple v. Gustafson, 151 Ill. 2d 445, 456 (1992)).
"In determining whether the trial court abused its discretion, the reviewing court should consider whether the jury's verdict was supported by the evidence and whether the losing party was denied a fair trial." Maple, 151 Ill. 2d at 455. "Verdicts are to be liberally construed, however, and may be amended to conform to the pleadings and evidence contained in the record whenever the intention of the jury is clear." Congregation of thePassion, Holy Cross Province v. Touche Ross & Co., 159 Ill. 2d 137, 171-72 (1994).
"Illinois courts have repeatedly held that the amount of damages to be assessed is peculiarly a question of fact for the jury to determine citations and that great weight must be given to the jury's decision citations." Snelson, 204 Ill. 2d at 36-37. "Indeed, a court reviewing a jury's assessment of damages should not interfere unless a proven element of damages was ignored, the verdict resulted from passion or prejudice, or the award bears no reasonable relationship to the loss suffered." Snelson, 204 Ill. 2d at 37. "If a jury's award falls within the flexible range of conclusions reasonably supported by the evidence, it must stand." Jones v. Chicago Osteopathic Hospital, 316 Ill. App. 3d 1121, 1138 (2000); see also Posner v. Davis, 76 Ill. App. 3d 638, 645 (1979). "Illinois has long recognized the applicability, in questions of damages, of the doctrine of avoidable consequences, which prevents a party from recovering damages for consequences which that party could reasonably have avoided." Maere v. Churchill, 116 Ill. App. 3d 939, 946 (1983). In making this determination, we consider the record as a whole. Snelson, 204 Ill. 2d at 37.
Personal Jurisdiction
Single e-Bay Transaction Not Sufficient "Minimum Contact" with Illinois to Create Personal Jurisdiction
MacNeil v. Trambert, No. 2-09-0873 (June 3, 2010) DuPage Co. (McLAREN) Affirmed.
- In this case, the plaintiff was the winning bidder of a car in an eBay auction, and the seller was a resident of another state. When the car was delivered, Plaintiff discovered that it was not equipped with DVD screens in the front seat headrests and satellite radio system as it had been described on eBay The plaintiff filed suit in an Illinois small claims court against the defendant seller for breach of contract. The court affirmed the trial court's dismissal, finding that there was a lack of the necessary minimum contacts with Illinois for personal jurisdiction. The seller of an item on eBay, without further ties to a forum, is not subject to specific jurisdiction in that forum, where the transaction is in the nature of a one-time deal.
Legal Malpractice (5th Dist.)
Union Planters Bank, N.A. v. Thompson Coburn LLP, No. 5-08-0497 (June 3, 2010) Madison Co. (WEXSTTEN) Affirmed.
- (Court opinion corrected 6/18/10.) Plaintiff bank (previously a trust company) filed legal malpractice action against its attorneys for $11.78 million in damages it paid in settlement and legal expenses in connection with transactional work for bank's termination as a trustee and subsequent transfer of trust funds. Jury verdict for plaintiff bank for $3.65 million. Underlying litigation arose out of a structured-settlement company's scheme to defraud several personal injury plaintiffs of their settlements. In holding limited to transaction-based legal malpractice cases, law firm failed to properly advise trust company how to terminate its position as trustee while exposing it to the least amount of risk, and was thus liable for reasonable exposure and expenses to which company was subjected. Collateral estoppel inapplicable, as issue decided in prior adjudication is not identical with issue in present case.
Office Location
