Articles Posted in Illinois Civil Procedure

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Part of being a Chicago trial lawyer is presenting your client’s side of a story to a judge and jury. One way to do this is by submitting evidence during litigation, such as testimony, diagrams, and pictures. But what happens if a judge decides that you can’t show some of your evidence? How do you make sure that your the jury understands your client’s story?
Photographs can be a very persuasive way to drive a point home to the jury at trial. For example, if you want to demonstrate the horrific nature of a car crash then nothing gets this across better than photographs of the totalled car. Or if you’re arguing that doctors at a local Chicago hospital dropped the ball and didn’t prevent or treat your client’s bed sores, then pictures of the exact size and nature of those sores will underscore how impossible they were to miss.

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

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

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