May 2010
Insurance 1st Dist.
Proper Notice By Insured of Lawsuit Was a Question of Fact and Summary Judgment Improper.
Berglind v. Paintball Business Ass'n
, No.1-08-1156 (May 28, 2010) Cook Co., 6th Div. (ROBERT E. GORDON ) Affirmed in part and reversed in part. (Court opinion filed 12/24/09 withdrawn.)
- Eleven-year old boy sustained eye injury at paintball facility. Suit was consolidated with declaratory judgment action as to reasonableness of insured's notice of occurrence. Trial court granted summary judgment for insurer and agent, and denied Plaintiff's motion for summary judgment. 11-month delay in notification to insurer of service of suit was not unreasonable as a matter of law, as insured facility owner lacked experience in insurance matters, and at time of incident a physician at the scene washed out child's eye, he seemed fine, and had no further contact with facility about injury. Questions of fact exist as to late notice of occurrence, thus summary judgment for plaintiff or for insurer improper.
Medical Malpractice / Experts / Causation 2d Dist
Causation Defense in Birth Trauma Case Passed Frye Test and Should Have Been Admitted Into Evidence Because There Was Some Support For Theory in Evidence.
Northern Trust Company v. Burandt and Armbrust, LLP
, No. 2-08-0193 (May 26, 2010) DuPage Co. (BURKE) Reversed and remanded.
- Appellate Court reversed a $12 million jury award in birth trauma case. The trial court had ruled that although the infection-causation defense passed the Frye test, it was speculative because there was evidence in the record to support the theory. However, the Appellate Court held that the Infection-causation defense that preexisting strep bacterial infection caused infant's injuries at time of birth should have been admitted, as this defense met the general-acceptance Frye standard and was supported by some evidence.
Motion in Limine / Mistrial
Violation of Motion in Limine Should Have Resulted in a Mistrial
Jackson v. Reid
, No. 3-09-0512 (May 24, 2010) Peoria Co. (WRIGHT) Appellate court affirmed in part and reversed in part; remanded with directions. (Court opinion modified 6/29/10.)
- Parents' alleged medical malpractice against pediatric urologist in connection with surgery performed on their 4 year old daughter with urinary reflux. Trial Court had granted Plaintiff's Motion in Limine regarding raising any inference that the parents moved up an appointment in order to have the surgery and stop antibiotic therapy. After Defendant violated the order in opening statement and again during the adverse exam of the Defendant, Motion for mistrial should have been granted, as defendant physician's testimony denied plaintiffs a fair trial.
Experts/Cross Examination/Medical Malpractice
Defendant-Expert Must Produce Articles Reviewed, Even If Not a Basis for Any Opinions.
Jackson v. Reid
, No. 3-09-0512 (May 24, 2010) Peoria Co. (WRIGHT) Appellate court affirmed in part and reversed in part; remanded with directions. (Court opinion modified 6/29/10.)
- Supreme Court Rule 213(f)(3) does not limit or restrict scope of plaintiffs' cross-examination when testing the defendant/physician's opinion testimony. Therefore, defendant should have produced any articles that the defendant/expert reviewed, even if NOT relying on these articles. Further, work product and attorney client privilege rules do not apply to articles which plaintiffs' counsel sought to discuss during cross-examination, as the articles were not prepared by defense counsel and once defendant agrees to testify as an expert, he is subject to same scope of rigorous cross-examination as any other Rule 213(f) witness and the attorney client privilege is waived as to opinions shared by the defendant with counsel.
Evidence
Chart from Medical Article Not Admissible and Cannot Go Back with Jury
Jackson v. Reid
, No. 3-09-0512 (May 24, 2010) Peoria Co. (WRIGHT) Appellate court affirmed in part and reversed in part; remanded with directions. (Court opinion modified 6/29/10.)
- Chart from medical article that summarized treatment guidelines was not admissible and could not go back to jury during deliberations.
Motions / Evidence / Sanctions
A Clear Violation of a Clear Verbal Directive from the Court May Result in a Mistrial
Jackson v. Reid, No. 3-09-0512 (3
rd Dist. 2010).
- Where there is a clear violation of a specific Motion in Limine or a clear verbal directive by the Court, the court may order a mistrial. In this case, the judge clearly instructed defense counsel not to mention that the parents had rescheduled a preoperative appointment after it was mentioned in defense counsel's opening statement. Nevertheless, during the trial, the defendant testified that the parents had attempted to reschedule the appointment. The timing in scheduling of the appointment was a critical issue in this case and the court's verbal directive was clear. In light of the clear directive and the clear violation of the directive, the plaintiff was denied a fair trial and a mistrial should have been granted.
Medical Malpractice / Witnesses / Cross Examination / Evidence / Discovery
Defendant in a Medical Malpractice Case Who is Also Identified as an Expert is Subject to Rigorous Cross-Examination and Conversations with Counsel May No Longer Be Protected By Attorney / Client Privilege
Jackson v. Reid, No. 3-09-0512 (3
rd Dist. 2010).
- In this case, the defendant-doctor was also specifically identified as an expert witness pursuant to Supreme Court Rule 213(f)(3). The doctor researched and apparently found articles before his deposition. Nevertheless, he failed to produce these articles at his deposition as requested by the plaintiff in his deposition notice. The trial court ruled that the research was work-product and/or attorney/client privileged and granted a Motion in Limine which barred the plaintiff from mentioning the existence of these articles that were not produced. The plaintiff also filed a Motion to Bar Testimony because the defendant-doctor apparently destroyed the research records. The plaintiff argued that he should be able to test the defendant's opinions on cross-examination using the research that the defendant had found. Supreme Court Rule 213(f)(3) limits direct-examination to the disclosure that is made but it does not limit cross-examination of a defendant especially one who is identified as an expert. Wide latitude is allowed on cross-examination of an expert. In fact, an expert may be cross-examined regarding material reviewed but not relied upon. Here, the court held that the plaintiff should not be restricted in the scope of cross-examination of the defendant based upon the work product rule or the attorney/client privileged. The work product rule protects documents prepared by counsel. These articles were not prepared by counsel. Further, the attorney/client privilege protects statements of a client to an attorney made in confidence. These articles were not statements to the attorney so they were not protected. Therefore, these articles should have been produced and allowed to be utilized by the plaintiff in cross-examining the defendant who was also identified as an expert. Further, an expert witness who is also a party is subject to the same scope of rigorous cross-examination as any other 213(f) witness. The plaintiff should have been provided the opportunity to test the reliability of the defendant's opinions. Importantly, the defendant elected to testify as an opinion witness. Accordingly, "her expert opinions previously shared with counsel prior to trial were no longer protected because the privilege has been waived."
Note: This is super important. Where a defendant-doctor is also disclosed as a 213(f)(3) witness, we should be able to discover conversations with counsel!
Evidence / Medical Malpractice
Chart from Article Constitutes Hearsay and is Inadmissible
Jackson v. Reid, No. 3-09-0512 (3
rd Dist. 2010).
- Scientific and medical treaties constitute hearsay and are inadmissible as proof of the statements contained in the treatise. Therefore, a chart from an article which summarized various guidelines was hearsay and inadmissible and should not have gone back to the jury in this medical malpractice case.
Medical Malpractice / Evidence
Supreme Court Rule 236 Allows Medical Records to be Treated as Business Records
Jackson v. Reid, No. 3-09-0512 (3
rd Dist. 2010).
- Therefore, medical records are admissible as business records as long as the proper foundation is laid. This foundation must include that the record was made in the regular course of business and that it was the regular course of business to make such a record. In this case, the appropriate foundation was not laid so the records were not admissible as business records.
Immunity / Sports / School / Government
A Field May Be Used for "Educational" Purposes to Avoid 3-106 Immunity for "Recreational" Property
Peters v. Herrin Community School District No. 4, No. 5-08-0125 (5
th Dist. 2010) Williamson Co. (GOLDENHERSH) Reversed and remanded.
- Plaintiff sued for her son's injuries during football camp sponsored by School District, alleging negligence and willful and wanton conduct. The minor was injured when he and other campers were, per coaches' instructions, running from dressing room to practice field, and the minor tripped over a bumper, obscured by weeds, used at the shot-put pit. The trial court dismissed the case pursuant to the Tort Immunity Act. Pursuant to Section 3-106, this section provided immunity where an incident occurs on property used for "recreational" purposes. However, the Act should not be applied to all school property per se. Because the property where the injury occurred was located on school grounds and was being used by the School District for a summer camp, an inference exists that the property was being used for "educational" purposes, not "recreational." Section 2-615 dismissal was premature, as the parties had not yet fully developed their theories on the use of the property for educational purposes. Moreover, willful and wanton allegations were sufficient to withstand dismissal, as Defendant coaches instructed the minor to run via route where bumper was located. These allegations, if true, demonstrated utter indifference and a conscious disregard for the plaintiff's safety.
Product Liability / Evidence / Motions
Defect May Be Proven by Circumstantial Evidence without Examination of Product
Davis v. Material Handling Associates, Inc., No.3-09-0214 (3
rd Dist. 2010) Will Co. (McDADE) Reversed and remanded.
- Plaintiff filed product liability suit, alleging that hydraulic hose on order picker he was operating was defective and caused his injuries. Summary judgment was improper because Plaintiff's engineer expert's affidavit stated that order picker was defective and proximately caused injuries. This created genuine issue of material fact. It is for the trier of fact to determine whether order picker was defective at the time it left Defendant's control. Product liability case can be established based on circumstantial evidence, and the actual product in question need not be produced. In this case, the hose at issue was lost after picker repaired. Plaintiff's expert's opinions were based on the inspection of picker (not hose), other documents and depositions. Therefore, said opinions were not speculation, expert's opinions were based on circumstantial evidence. Fact that plaintiff's expert never inspected subject hose (because it was lost) is of no consequence.
Insurance
Auto Insurance Policy Excluding Coverage when Driver Does Not Have a "Reasonable Belief" that He or She is "Entitled" to Use the Covered Vehicle Applies to Those Drivers who Drive Without a Valid Driver's License.
Founders Insurance Company v. Munoz, Nos. 108605, 108612 Cons. (Ill. Sup. Ct. May 20, 2010)
- In this declaratory judgment action, the Illinois Supreme Court considered the validity of an automobile policy exclusion that precludes liability coverage when the person using the vehicle does not have a "reasonable belief" that he or she is "entitled" to do so. The dispute arose out of six separate car collisions in which one of the drivers in each of the collisions did not have a valid driver's license. The trial court found the exclusion to be valid and the Appellate and Supreme Courts affirmed. The exclusion is not ambiguous because the " 'average, ordinary, normal, reasonable person' for whom the policies were written would understand that the exclusion applies to unlicensed drivers." Without a valid driver's license a person cannot have a reasonable belief that he or she is entitled to drive in this state. Moreover, the exclusion is not void as a violation Illinois public policy as an improper penalty because automobile insurance companies may limit their liability by excluding coverage for those who do not have a valid driver's license.
Motions / Judgments
Defendant's Failure to Appear at Court Proceedings Precluded Successful Motion To Vacate Default Judgment Pursuant to 2-1301(e)
Jacobo v. Vandervere, No. 2-08-1104, 2-10-0192 Cons. (May 19, 2010) Lake Co. (JORGENSEN) Affirmed.
- Court entered default judgment against Defendant in small claims proceeding for car accident, and denied Defendant's Section 2-1301(e) motion to vacate after hearing. Defendant was properly served and failed to appear on at least three occasions: at original and continued return date, and at prove-up. Defendant did not argue that she was not served, that she has good cause for not appearing, or that she was not aware that she was required to appear (although lack of notice of hearing date would not necessarily be a valid excuse). Court did not abuse discretion in failing to vacate default judgment order in light of defendant's failure to appear especially since her insurance company was aware of suit early on in litigation before default was entered. Fact that the defendant's insurance company was allegedly attempting to settle the case was also of no importance.
Government / Miscellaneous Actions
No One, Other Than the Government, May Intervene or Bring a Qui Tam Action Against a Defendant if There is a Pending Qui Tam Action Pending Against the Same Defendant Based on Related Facts.
U.S. ex rel. Chovanec v. Apria Healthcare Group Inc., No. 06-1619 (7th Cir. May 19, 2010) Appeal from N.D. Ill., E. Div.
- Plaintiff brought a
qui tam action against Apria Healthcare. The case was dismissed pursuant to 31 U.S.C. §3730(b)(5) because there were already two other
qui tam actions pending in the U.S. that alleged a related nationwide fraudulent billing scheme against Apria Healthcare. § 3730(b)(5) provides: "When a person brings an action under this subsection, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action." Thus, the 7th Circuit affirmed that Plaintiff's
qui tam case was properly dismissed. However, after the dismissal, but before the appeal, those two other
qui tam cases were settled. Because those cases were no longer pending, the Plaintiff sought reconsideration of the dismissal, which was denied. The 7th Circuit held that the Plaintiff was free to re-file her
qui tam action, but to prevent claim preclusion, she must show that the misconduct at issue in her lawsuit was unrelated to the national scheme alleged in the other settled lawsuits.
Pleadings
Relation Back Doctrine
Lewandowski v. Jelenski, No. 1-09-0612 (May 14, 2010) Cook Co., 6th Div. (GORDON, ROBERT E.)
- In this suit over alleged investment mismanagements, the plaintiff paid Defendant $76,000, in increments from $1000 to $15,000, for their joint venture to acquire and develop a parcel of real estate in Chicago. The property was never acquired or developed. Plaintiff claimed Defendant used monies for her own personal use. The Court properly allowed Plaintiff, following a bench trial, to amend her complaint to allege unjust enrichment outside of 5-year statute of limitations. Plaintiff's prior complaint had been timely-filed, and the amendments were rooted in same predicate facts, and had placed Defendant on notice of the allegations. Therefore, the post-trial amendment related back to the prior, timely filed pleadings. The Court reviewed the relation back doctrine:
The purpose of the relation-back doctrine is to preserve meritorious causes of action against a dismissal by reasons of a technical default. Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 355 (2008); Stevanovic v. City of Chicago, 385 Ill. App. 3d 630, 633 (2008). Trial courts are to liberally construe the requirements of section 2-616(b) (735 ILCS 5/2-616(b) (West 2006)) to allow resolution of litigation on the merits and to avoid elevating questions of form over substance. Porter, 227 Ill. 2d at 355, citing Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 106 (1996); Boatmen's National Bank of Belleville v. Direct Lines, Inc., 167 Ill. 2d 88, 102 (1995). Both the statute of limitations and section 2-616(b) are designed to afford a defendant a fair opportunity to investigate the circumstances upon which liability is based while the facts are accessible. Porter, 227 Ill. 2d at 355, citing Boatmen's National Bank, 167 Ill. 2d at 102. The rationale behind the "same transaction or occurrence" rule is that a defendant is not prejudiced if " 'his attention was directed, within the time prescribed or limited, to the facts that form the basis of the claim asserted against him.' " Boatmen's National Bank, 167 Ill. 2d at 102, quoting Simmons v. Hendricks, 32 Ill. 2d 489, 495 (1965). "A court should consider the entire record, including depositions and exhibits, to determine whether the defendant had such notice." Porter, 227 Ill. 2d at 355, citing Wolf v.Meister-Neiberg, Inc., 143 Ill. 2d 44, 46 (1991).An amendment which states a distinct claim that is based on a different set of facts than the claim in the timely filed complaint will not relate back. Stevanovic, 385 Ill.App. 3d at 633, citing Porter, 227 Ill. 2d at 358-59. However, "'relation back is appropriate where a party seeks to add a new legal theory to a set of previously alleged facts.' " Stevanovic, 385 Ill. App. 3d at 633, quoting Porter, 227 Ill. 2d at 358.
In the Porter case, the Illinois Supreme Court adopted the "sufficiently-close-relationship" test as articulated in In re Olympia Brewing Co. Securities Litigation, 612 F. Supp. 1370 (N.D.Ill. 1985). Porter summarized the Olympia Brewing sufficiently-close-relationship test as follows: "A new claim will be considered to have arisen out of the same transaction or occurrence and will relate back if the new allegations as compared with the timely filed allegations show that the events alleged were close in time and subject matter and led to the same injury." Porter, 227 Ill. 2d at 360, citing Olympia Brewing, 612 F. Supp. at 1373. The Porter court held that "an amendment is considered distinct from the original pleading and will not relate back where (1) the original and amended set of facts are separated by a significant lapse of time, or (2) the two set of facts are different in character, *** or (3) the two sets of facts lead to arguably different injuries." Porter, 227 Ill. 2d at 359, citing Olympia Brewing, 612 F. Supp. at 1372.
Negligence.
Rescue Doctrine Does Not Apply Unless Defendant Puts Rescuer in a Position of Danger
Tannehill v. Costello, No. 1-09-0868 (May 10, 2010) 1st Dist Cook Co., 2nd Div. (PATTI) Affirmed.
- In this personal injury case, the plaintiff sued her neighbor for shoulder injuries which she sustained while helping her neighbor walk to her car after the defendant neighbor had had a medical emergency. The neighbor insisted that Plaintiff drive her to the hospital, instead of calling an ambulance. The appellate court affirmed the trial court's granting of summary judgment, holding that the Rescue Doctrine, which may be asserted by a rescuer to recover damages from a defendant who places herself in danger, does not apply unless the defendant placed herself in a dangerous situation where she knew others might or could attempt to rescue her. Here, the defendant simply asked or insisted that Plaintiff drive her to hospital. Under these circumstances, the plaintiff failed to establish any duty owed by Defendant, and Plaintiff's injury was not foreseeable.
Admissions / Insurance / Pleadings
Since a Verified Pleading Always Remains Part of the Record, a Party's Admissions Contained in the Original Verified Pleading Are Judicial Admissions That Still Bind the Pleader Even After the Filing of an Amended Pleading.
Konstant Products, Inc. v. Liberty Mutual Fire Insurance Co., No. 1-09-0080 (Ill. App. 1st Dist. May 4, 2010)
- In the underlying personal injury case, the Plaintiff was stuck between his truck and a dumpster. The Defendant tried to help him by reversing the truck, but instead, went forward and injured him. The Plaintiff alleged in a verified pleading, among other things, that the Defendant was not given permission to drive the Plaintiff's truck. Based on this allegation, the Plaintiff's auto insurance company refused to defend the Defendant and denied coverage because the Defendant was not a permissive driver as defined by the policy. The Plaintiff later amended his verified complaint and omitted this allegation. The case then settled. After settlement, the Defendant's insurance company filed a declaratory judgment action against the Plaintiff's insurance company maintaining that Plaintiff's insurance should reimburse Defendant's insurance company for the settlement money it paid because the amended complaint did not contain the lack of permission allegation, and therefore it should not have denied coverage. Summary judgment was granted in favor of the Plaintiff's insurance company and the Appellate Court affirmed. It reasoned that since a verified pleading always remains part of the record, a party's admissions contained in the original verified pleading are judicial admissions that still bind the pleader even after the filing of an amended pleading. Thus, the fact that the lack of permission allegation was not in the amended pleading was of no consequence because the Plaintiff had already admitted in the original verified complaint that the Defendant did not have his permission to drive his truck. Moreover, the judicial admission trumps Defendant's insurance company's argument that there was implied permission.
Appeals / Pleadings
Wrong Event Code Did Not Invalidate Notice of Appeal
Vince v. Rock County, Wisc., No. 10-1659 Wisc., Ct. of Appeals (May 3, 2010).
Court of Appeals had jurisdiction to consider appeal of District Court's order granting defendant's motion for summary judgment in section 1983 action even though question arose as to whether said appeal was timely where counsel for plaintiff electronically sent notice of appeal (on last day of appeal period) that contained wrong event code. Although counsel sent corrected notice of appeal on subsequent day (i.e., one day late), mistake on original notice of appeal did not serve to invalidate said filing since nature of original notice of appeal was sufficiently clear. This was simply an error as to form.
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