Justia Lawyer Rating for Robert D. Kreisman

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Harry DeSchene, a 53-year-old worker for Pavement Recycling, was seriously injured on a jobsite. He was walking behind a water truck to take a work-related phone call when a truck driver of Emmett’s Excavation backed his truck into him. He was run over at his midsection. He suffered a pelvic fracture, a dislocated right elbow and other internal injuries.

DeSchene’s medical expenses were $400,000. He is now totally disabled and unable to return to work.

DeSchene and his wife filed a lawsuit against Emmett’s Excavation claiming that its employee was negligent by choosing not to walk around his truck to clear the area before backing up. In other words, it was the truck driver’s duty to make sure no one was near the rear end of his truck before he backed it up. Emmett’s argued that DeSchene acted negligently himself by engaging in a conversation on his phone behind the Emmett’s truck.

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John E. Mulholland Jr. was alleged to have chosen not to stop at a stop sign while driving on a secondary road. He died when his car crashed into the vehicle driven by Joseph A. Cohen, who was driving on the intersecting preferential highway.

As the trial judge was persuaded that Mulholland’s conduct was the sole proximate cause of the crash, summary judgment brought by Cohen was granted. That was the order in a lawsuit brought by Mulholland’s daughter against Cohen. Cohen was reportedly talking on his cellphone while driving down a steep grade at 50-55 mph on Route 3, south of Chester, Ill. He was driving a Dodge Ram 2500 pickup truck that was towing an 18-foot trailer loaded with a Bobcat T-190 skid-steer. According to Cohen, his vehicle, trailer and skid-steer weighed around 14,000 lbs.

Mulholland was driving a Chevrolet S10 pickup truck on Water Street headed toward the intersection with Route 3. There was a stop sign facing him at the intersection. Cohen did not have a stop sign of any kind.

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On May 24, 2011, Michael Racky was bicycling across 95th Street at LaCrosse Avenue in Oak Lawn, Ill. He jumped his bike over a 12-inch curb at the southwest corner to reach the sidewalk. There, the bike slowed and wobbled due to the loss of momentum.

Racky was 52 years old at the time. He continued riding south parallel to a commercial building, Karnezis Properties Plaza, when he extended his left arm and his right hand lightly touched a large, plate-glass storefront window while he attempted to retain his balance on his bike.

As he touched the window, it collapsed. He fell inside the storefront with his legs draped over the broken glass. His left leg was cut to the bone. An eyewitness to the incident, an off-duty Chicago Fire Department paramedic, tried without success to apply a tourniquet to Racky’s leg.

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On March 22, 2013, James McGinley, a delivery driver at the House of Blues in Chicago, was using a freight elevator to deliver heavy boxes of liquor to that location. However, when he was using the elevator, a descending door struck him and injured him.

He filed a lawsuit against Sysco Corp., pleading that upon his information and belief, a Sysco employee had been delivering goods to the same location earlier that day and had left his key in the elevator, which in turn was the cause of the door descending onto McGinley and injuring him.

McGinley alleged that Sysco was negligent and was also negligent as a common carrier. Sysco argued that it neither owned the premises nor controlled the elevator and thus had no duty of reasonable care to McGinley.

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James and Vanesha Doran and their daughter, Candice, attended a dinner following Candice’s college graduation ceremony. The dinner was held at Arbor Station Apartments. As James, Vanesha and Candice were standing on the second-floor balcony with Sandra Miles and other guests waiting to enter Candice’s apartment, the landing suddenly collapsed, causing the guests to fall about 20 feet to the pavement below.

James Doran, 43, suffered multiple fractures to both of his legs, including compound fractures to the left tibia and fibula and a fracture of his right femur. He underwent open reduction internal fixation surgery on the tibia and fibula fractures and was hospitalized for nearly a month, including 3 weeks of inpatient rehabilitation. He now walks with a cane. He incurred $156,200 in medical expenses and his future medical expenses are estimated to be about $105,800. Doran was a machinist and was unable to return to his job and is now permanently disabled. His past and future lost earnings are estimated to be more than $900,000.

James’s wife, Vanesha Doran, 43, sustained a right heel fracture, injuries to the right foot resulting in contracture of the middle toes at the joints, a tear to the right medial meniscus (right knee cartilage) and a lumbar herniated disk. She underwent surgeries to repair the meniscus tear and to implant a spinal nerve stimulator after nerve-block injections failed to relieve her lower back pain. She also developed complex regional pain syndrome in her lower back, resulting in chronic, debilitating pain. She now uses a wheelchair. Her past medical expenses totaled about $124,300. Her future medical expenses and life-care costs for what is expected to be a total knee replacement and to replace batteries in the stimulator were said to be estimated at around $4.23 million. She was a legal assistant at the time of the incident and is now permanently disabled. Her lost future earnings are estimated at over $800,000.

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In a landlord-tenant case that included a bankruptcy, the Illinois Appellate Court weighed in on the law of unjust enrichment and constructive trust. The case involved the payments on a commercial lease, a bankruptcy and the legal principles.

The commercial lease tenant — Montgomery Ward — had filed for bankruptcy protection in 1997. Montgomery Ward had defaulted on its lease that same year. A proof of claim was filed and approved for the commercial landlord, DiMucci LLC. DiMucci defaulted on its loan from GALIC. GALIC filed a motion in the bankruptcy court in the case seeking an assignment of DiMucci’s claim against Montgomery Ward. The court allowed the assignment of the allowed bankruptcy claim of $640,000 for the default in lease payments.

In February 2001, the check in the amount of the assignment — $638,537.50 —  was received by DiMucci LLC, which was supposed to deliver the payment of $640,000 to its lender, GALIC. Instead, DiMucci LLC pocketed the check. The lender’s insurer, National Union, then filed a state court action against the landlord’s officer to recover the $640,000. The trial judge granted summary judgment for the plaintiff on its unjust enrichment and constructive trust counts. The defendant, landlord officer, appealed.

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The Illinois Appellate Court has found no abuse of discretion where the factors were not delineated in an order when a Cook County judge dismissed a case because of forum non conveniens.

In this case, on Oct. 24, 2013, in Belvidere, Ill., there was a crash involving a car driven by Kenneth Kazort and a garbage truck driven by an operator from Advanced Disposal Services Solid Waste LLC. The garbage truck driver was John Padgett. Padgett was alleged to have backed into a driveway in order to turn around and move on to the next resident. When the garbage truck pulled out, Kazort, who was out of view, was blocked by “numerous large trees, a recreational vehicle, vegetation and other foliage.”

As the garbage truck pulled out into the street, Kazort’s car and the truck crashed into each other, killing Kazort. Malinda Ruch was appointed administrator of the Kazort estate and filed a lawsuit in the Circuit Court of Cook County claiming negligence on the part of Padgett and on his employer Advanced Disposal.

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The Illinois Supreme Court has affirmed a decision of a trial judge who denied a motion for substitution of judge that is usually a matter of right under 735 ILCS 5/2-1001(a)(2)(ii). In this case, the special administrator of the Estate of Bowman, Connie Bowman, filed a medical negligence case against Dr. Michael V. Ottney. There were pretrial rulings on substantive issues involving discovery disclosures. Bowman at that point voluntarily dismissed the lawsuit with the right to refile within one year without prejudice. The underlying lawsuit was brought by the plaintiff Connie Bowman who was the special administrator of the estate of Char Bowman who sought damages against the defendant Ottney.

The refiled lawsuit was then assigned to the very same judge who presided over the earlier proceedings. Again, Bowman moved for substitution of judge as a matter of right. The circuit court judge denied the motion but certified a question to the Illinois Appellate Court, which concluded that the court had discretion to deny a motion for substitution filed by a plaintiff where the court had ruled on matters of substance in the plaintiff’s previously filed but now dismissed lawsuit.

The Illinois Appellate Court affirmed. In doing so, the Supreme Court said Bowman could have moved for substitution of judge as a matter of right during the proceedings on her 2009 complaint, the first lawsuit. She could have done this even after the judge ruled on matters of substance. Bowman could have moved for cause under Section 2-1001(a)(3) in either the 2009 or the 2013 litigation.

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The Illinois Supreme Court has affirmed an order of the circuit court judge who granted a petition filed by the guardian ad litem (GAL) for the minor, A.A., to vacate a voluntary acknowledgment of paternity (VAP) signed by the respondents Matthew A. and Caitlin S. with regard to the minor. The appellate court affirmed and held that after DNA testing established that Matthew was not the biological father of A.A., the trial court was not required to make a “best interest of the child” determination prior to granting the petition.

Following A.A.’s birth on April 26, 2013, Matthew and Caitlin signed a VAP pursuant to section 6(a) of the Illinois Parentage Act of 1984, 750 ILCS 45/6(a). Caitlin, A.A.’s mother had been married to Jakob S., who signed a denial of paternity as to A.A.

On June 10, 2013, the state filed a petition for adjudication of wardship in juvenile court following an investigation of the Department of Children and Family Services (DCFS) into the conditions of the home where A.A. was living with Caitlin, Matthew and Caitlin’s three other children. The state claimed that there was neglect and an injurious environment based upon inadequate supervision, lack of cleanliness in the home and hygiene issues concerning the four children.

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When litigation is possible or pending in a federal case, the litigants should take care to instruct those in possession of documents and especially electronically stored information to preserve and prevent loss of such documents. If the litigation has begun, or is reasonably anticipated, lawyers should send a letter by way of email or written notice to the other side to put them on notice that there is a duty of preservation that has been triggered. They should also describe the electronically stored information believed to be relevant in a case that should be preserved.

The newly amended Rule 37(e) authorizes what measures the courts can use if the electronic information that should have been preserved has been destroyed or lost.

Amended Rule 37(e) provides:

Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

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