Articles Posted in Illinois Civil Procedure

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Appellate Court held that even though the two documents were signed on the same date that there was no evidence that they should be taken as one unified document. The language used in the arbitration agreement was very vague and never specifically referred to the nursing home care contract, nor did the nursing home care contract ever refer to the arbitration agreement. Specifically, the arbitration agreement stated, “Notwithstanding the parties intent to submit any controversy or claim arising out of or relating to this agreement or any other document signed or initialed in connection with this agreement to arbitration.”
While the court noted that prior case law has supported the connection between two separate documents signed at the same time, the law requires that “an enforceable contract must be premised on language that is definite and certain as to all essential terms.” Academy Chicago Publishers v. Cheever, 144 Ill. 2d1224, 30 (1991). The court found that the language included in the arbitration agreement did not satisfy this requirement.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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