Justia Lawyer Rating for Robert D. Kreisman

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The question in this case, which was posed to the Illinois Appellate Court, was: “Does the trial court have discretion to permit a Rule 215 medical examiner to testify when the attorney for the party examined has not been served with the examiner’s report within the time specified by Rule 215(c)?”

The answer the Illinois Appellate Court gave in conclusion was “No.”

The ruling came despite a violation of the portion of the Illinois Supreme Court Rule 215 that requires a physician who was hired by the defendant ‘s attorney to conduct a medical examination of the plaintiff to send a copy of his report to the plaintiff’s attorney within 21 days of the checkup – and despite the fact that the third sentence of Rule 215(c) prescribes exclusion as the automatic remedy for a violation of this deadline. In this case, a circuit court judge in Madison County, Ill., denied Linda Batson’s motion to bar Dr. Mitchell Rotman from testifying in her personal injury case against Schindler Elevator Corp. The judge certified the question of law for immediate appeal.

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BNSF Railway Co. (BNSF) appealed the denial of its motion for summary judgment notwithstanding the verdict (JNOV) following a jury trial and judgment, which granted Thomas and Dana Tubbs $2,598,000 in actual damages and $1,231,000 in punitive damages. The jury verdict and judgment were for BNSF’s negligence in choosing not to provide adequate drainage for a portion of railroad track that bisected the Tubbses’ farm.

The verdict was affirmed in this case by the Missouri Appellate Court. “The Tubbses own and operate a farm in a floodplain near the Missouri River in Holt County, Mo.”

. . . BNSF, an interstate freight railroad, owns and operates a track that runs east and west along the floodplain and bisects the Tubbses’ farm. The track sits atop an earthen embankment, which was originally rebuilt in 1887.

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A forklift operator, Olynthus Davis, was loading a tractor-trailer equipped with a securement system that consisted of metal tracks running the length of the trailer. Davis, 36, operated his forklift inside the trailer. The end of one of the tracks of the securement system pierced the cargo area and impaled Davis’s left leg near the knee. The impact also forced his right elbow into the steering wheel.

Davis underwent debridement and multiple wound care procedures. He required a wheelchair for several weeks and used crutches and a walker for months. Davis also underwent an ulnar nerve exploration surgery and has been diagnosed with having a neuroma, which will require surgery.

A neuroma is a painful condition sometimes called a “pinched nerve.” A neuroma has also been described as a thickening of nerve tissue that can develop in different parts of the body. More specifically, a neuroma of the ulnar nerve occurs most often because of a trauma such as what Davis experienced. The clinical presentation of a neuroma of the ulnar nerve is pain and tenderness to the touch. This would be the case of Davis’s injured elbow.

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Corzon Espano, an accountant in her 60s, was standing at the corner of an intersection waiting for a traffic light to change before she was about to cross the street. When the light signal showed “walk,” she entered the crosswalk and was abruptly hit by a turning garbage truck driven by Raymond Morell, who worked for the City of Torrance, Calif.

Espano unfortunately suffered a traumatic brain injury and multiple orthopedic injuries including a crushed knee. She underwent several surgeries and procedures, including open reduction internal fixation of the right tibia, skin grafting, and debridement of her lower right leg.

It is possible that she may later require a leg amputation due to her high risk of infection. The Medicaid lien through the state of California totaled $100,000.

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The Illinois Appellate Court for the First District affirmed a decision from the Circuit Court of Cook County, Probate Division. In this case, when James Cerami died on Jan. 16, 2013, he had been married to Christina Cerami for nearly 20 years. About seven months after James’s death, Christina opened a probate estate and petitioned for letters of administration maintaining that although a will was apparently executed by James and filed with the Clerk of the Circuit Court of Cook County on Feb. 4, 2013, Christina “at this time does not have sufficient information with which to make any determination regarding the validity of this will of the decedent.”

Christina filed a claim against James’s estate on Jan. 15, 2015 seeking in excess of $100,000 for “custodial care” and alleging that due to a breach of their premarital agreement, she was owed a “share of earning and benefits.”

In line with the party’s 1993 premarital agreement, James was to name Christina as entitled to any survivor benefits and as the sole beneficiary of a life insurance policy “in an unencumbered amount not less than $100,000.”

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Under the discovery rule, does the statute of limitations clock start when the harm is discovered? Or is it when the plaintiff discovers that the harm was “wrongfully caused?” The Illinois Appellate Court, First District, held that the statute of limitations clock starts when the harm is discovered.

During a storm in Chicago with strong winds, a portion of the roof of an auto sales and service business flew off and struck nearby power lines. The plaintiff in this case alleged that the resulting electric surge damaged computers used in a sophisticated metal manufacturing operation.

Years later, M&S Industrial Co. discovered that its neighbor’s roof had been defectively installed, which violated building codes. The company filed a lawsuit. The defendant moved to dismiss the case given that the four-year statute of limitations applicable to claims of construction negligence had expired.

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U.S. Court of Appeals for the 9th Circuit has reversed a district court’s dismissal of an action alleging consumer claims against MusclePharm Corp., a manufacturer of nutritional supplements, for making false or misleading statements about the protein in one of its products. The case was sent back to the trial court for further proceedings.

The district court dismissed the action as preempted by the Food, Drug and Cosmetic Act (“FDCA”), 21 U.S.C. ¶¶ 301-399(i), reasoning that any declarations of protein content anywhere on a product label could not be false or misleading if the listed amount of protein reflected measurements made in accordance with federal regulations concerning the federally mandated nutrition panel. The court of appeals held that, as relevant here, the FDCA and its implementing regulations concerned only the calculation and the disclosure of protein amounts. Specifically, the panel held that the FDCA preempted the state-law misbranding theory premised on the supplement’s use of nitrogen-spiking agents to inflate the measurement of protein for the nutrition panel.

The court of appeals held that the FDCA did not, however, preempt a state-law misbranding state-law theory premised on the label’s allegedly false or misleading implication that the supplement’s protein came entirely from two specifically named, genuine protein sources.

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The defendant, Toad L. Dragonfly Express Inc., appealed an award of contribution entered against it and in favor of the defendant C.H. Robinson Worldwide Inc. and other corporate entities collectively, CHR.

After the jury trial, judgments totaling $23,225,000 were entered, jointly and severally against Dragonfly and its owner, Luann G. Whitener-Black who is now deceased, DeAn Henry, and CHR in three consolidated tort actions stemming from the fatal automobile crash. Henry was the driver of the semi-tractor involved in the incident. Dragonfly is a federally licensed motor carrier that had leased Henry’s semi-tractor at the time of the accident and CHR was the broker of the load Henry was carrying at the time.

After CHR fully satisfied the tort judgments (including postjudgment interest), CHR sought contribution from Dragonfly under the Illinois Joint Tortfeasor Contribution Act (Act) (740 ILCS 100/0.01 et seq. (West 2014)). The trial court granted CHR’s contribution claim against Dragonfly for 50% of the jury’s total award in the underlying tort actions, including post-judgment interest. Dragonfly then appealed the trial court’s order granting contribution to CHR. Dragonfly argued that CHR is not entitled to contribution from Dragonfly because the Act creates a right of contribution based upon comparative fault, and neither CHR nor Dragonfly were at fault in this case.

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Robert Frederickson, 39, was a passenger in a vehicle that was being driven by his wife near their apartment complex. Cecilia Martin, a Special Occasions Catering employee, was driving an SUV when she reached for her phone in her purse causing her to rear-end the Fredericksons’ stopped car.

Martin, who was stunned by the crash, allegedly pressed the SUV’s accelerator striking the Fredericksons’ car a second time. As Frederickson attempted to exit the vehicle, Martin struck it a third time causing it to move for a distance before reaching a stop.

Frederickson suffered multiple injuries in this crash including left sacroiliitis, a disk herniation at L4, and a left labral tear.

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Allison VanDerMaelen was riding on the back of a motorcycle that was approaching an intersection. A garbage truck driven by Robert Choinski for CWPM, LLC was traveling westbound while the motorcycle was eastbound.

Choinski’s garbage truck crossed the centerline and entered the eastbound lane crashing head on into the motorcycle.

VanDerMaelen suffered serious injuries including brain hemorrhaging, chest trauma, and multiple fractures. She underwent numerous surgeries and was hospitalized for almost three months. She then underwent six months of physical therapy, rehabilitation and additional leg surgeries. VanDerMaelen continues to suffer pain and restrictions in her daily living activities and uses a wheelchair or walker to move around.

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