Justia Lawyer Rating for Robert D. Kreisman

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The Illinois Supreme Court reversed a $27 million jury verdict award and ordered a new trial after applying the risk-utility test of Illinois product design liability in favor of the defendant. This is a new application of the risk-utility test, which typically falls in favor of the plaintiff.

Illinois’ strict design defect theory applies one of two tests to determine whether a product is unreasonably dangerous. The first test is the “consumer expectation” test, under which the plaintiff must show that the product is more unreasonably dangerous than a typical consumer would realize when purchasing it.

The other test is the “risk-utility”, or “risk-benefit” test. Under the risk-utility test the consumer must prove that the danger associated with a product outweighs the product’s benefits. Under the risk-utility design the product manufacturer may also prove that the product’s benefits outweigh the risk of danger inherent in the product’s design.

In Mikolajczyk v Ford Motor Co, 2008 W.L. 4603565 (Ill.Supp.Ct. 2008) , the Supreme Court applied the risk-utility test to determine whether the product was defective under Illinois law. In Mikolajczyk, the plaintiff died of injuries sustained when another vehicle crashed into the rear end of his Ford Escort. His widow brought a claim regarding the defective design of the driver’s seat against the Ford Motor Company and Mazda Motor Corporation.

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Illinois remains one of only three states that does not have a motorcycle helmet law; Iowa and New Hampshire are the other two states. The rest of the US states currently have some sort of motorcycle helmet law in place.

Yet the degree of these laws vary from state to state, with some requiring only a limited population of motorcycle riders to wear helmets. For example, over the past ten years Arkansas, Florida, Kentucky, Pennsylvania and Texas have all changed their motorcycle helmet laws so that they only apply to younger riders.

However, not all states are going from strict to lenient laws, Louisiana recently moved from a partial to a universal motorcycle helmet law. Currently only 20 states require universal helmet use 100% of the time, while the other 27 states enforce laws covering only some motorcycle riders.

As the helmet laws change researchers are able to obtain data to study the effects of state laws on motorcycle helmet usage and the associated instances of motorcycle deaths and head injuries. While having universal helmet laws reduce death and serious injuries from motorcycle accidents, the same doesn’t hold true for partial helmet laws. This is in part because these partial laws are widely disobeyed. Weakening or repealing motorcycle helmet laws results in a sharp reduction in helmet use, which is then followed by a significant increase in injuries and deaths.

Texas is a perfect example of this trend. Between 1968 and 1977, Texas’s universal helmet was estimated to have saved 650 lives. However, it was later amended to cover only motorcycle riders younger than 18 years-old. That weakening in its law was followed by a 35% increase in motorcycle fatalities.

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Since early 2006, drug and medical device companies have been on an unprecedented roll as pre-emption clauses become more and more prevalent. Despite recent controversies over prescription drugs like Vioxx and Celebrex, drug companies continue to successfully utilize Federal Drug Administration (FDA) policies to shield drug companies from civil lawsuits in the form of pre-emption clauses. This has far-reaching effects on pharmaceutical liability lawsuits in Illinois and the rest of the country.

And not just the FDA are upholding and propagating these preemption clauses- the U.S. Supreme Court has also supported pre-emption laws that prevent claimants from filing civil law suits against deep-pocketed drug and medical device companies in state courts.

The beginning of the preemption era can be traced back to January 2006, when the FDA issued a statement of its new labeling policy under the “Laws, Acts, and Rules > New Requirements for Prescribing Information.pdf.” This policy not only set out labeling requirements, but also deemed that if the FDA approved the labeling then this alone “pre-empts conflicting or contrary state law”.

The federal pre-emption clauses have little or no bearing on FDA drug recalls, which can be initiated by the FDA, by FDA statutory authority, or by the drug company itself. The FDA maintains a list of recent drug recalls.

Yet the seemingly simple pre-emption declaration had far-reaching effects within the legal community and reversed decades of policies enforcing state’s rights to civil enforcement of liability law. This was done without a public notice or hearing- instead it was quietly tacked on to the labeling policy.

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On Thanksgiving morning, Chicago attorney Bob Kreisman volunteered at the St. Louis Harbor Lights Salvation Army with family members from both St. Louis and Chicago. This is an annual event for the Kreisman family, who serve as waiters for those who come to enjoy the feast.

A total of 60 turkeys were cooked this year to feed the over 100 St. Louis homeless or facility residents who gathered at the Salvation Army. The feast was complete with ample portions of dressing, sweet potatoes, cranberry sauce, and of course, desserts. The atmosphere was festive and joyful as everyone gathered together to celebrate Thanksgiving.

The St. Louis Harbor Lights Salvation Army is a community center and provides social services, such as substance abuse and character building programs. It also provides Bible study, Sunday services, and music and arts for its visitors.

As the holiday season continues the Salvation Army has many more opportunities to volunteer your time or money to help those in need. Donations can be mailed to the Salvation Army, P.O. Box 1607, St. Louis, MO 63188-1607, or can be made via the Salvation Army website.

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On Thursday, November 13, 2008, the Illinois Supreme Court heard oral arguments from attorneys representing the various parties in the case of Lebron v. Gottlieb Memorial Hospital Nos. 105741 and 105745. The main issue of contention was whether or not there should be caps on non-economic damages in Illinois medical malpractice cases.

Lebron is appealed directly from the Cook County Circuit Court following a decision by Circuit Court Judge Diane J. Larsen that caps on damages were unconstitutional. These caps were enacted as part of an amendment to the Medical Malpractice Act. The caps dealt specifically with non-economic damages and imposed a legal limit of $500,000 for physicians and healthcare professionals, whereas the cap for hospitals is $1 million.

Lebron was originally filed as an Illinois birth injury case against Gottlieb Memorial Hospital in 2005 after plaintiffs’ daughter was born with birth defects as a result of substandard care at the hospital and negligence on the part of the staff there.

Former U.S. solicitor general Theodore B. Olson presented the first oral argument on behalf of defendants. The core of the Olson argument was that the Illinois Supreme Court has acknowledged in the past that there is a healthcare crisis and that the malpractice caps law was an attempt to solve that problem.

In response to Olson’s assertion, several Illinois Supreme Court justices questioned how the proposed medical malpractice caps could conform with the decision in Best v. Taylor Machine Works, 179 Ill.2d 267 (1997). Best held that a law limiting damages in tort claims was unconstitutional because it violated the state Constitution’s prohibition on special legislation and the principle of separation of powers.

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This past Saturday the Magnificent Mile Lights Festival marked the beginning of the holiday season in Chicago. Like any good Chicago festival there was food, entertainment, fireworks, shopping, and of course the lighting of the trees along Michigan Avenue. Thousands of locals and visitors came out to participate and get a jump start on holiday cheer.

If you missed the Lights Festival there are several more festivals and events around Chicago to help jump start your holidays. Another lighting ceremony occurs at noon on December 2nd, when Mayor Daley lights the Chicago Christmas Tree Lighting Ceremony. The tree is located in the Daley Plaza, which also hosts the Chicago Christkindlmarket, a German holiday market with food, drinks, and holiday crafts. And as long as you’re downtown, head over to State Street for some shopping and make sure you stop at Macy’s to take a peek at their annual holiday window display. Or if you’re looking for a more active experience, try ice skating at the Millennium Park Ice Rink, where you can skate amid Chicago’s impressive skyline.

For classic holiday entertainment, check out the Rockettes at The Radio City Christmas Spectacular, the sugar plum fairy dance in The Nutcracker, and Scrooge bah-humbug in A Christmas Carol.

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According to the National Highway Traffic Safety Administration (NHTSA), motorcycle fatalities have risen 127% since 1997 and now account for 11% of all motor vehicle deaths annually. In 2006 alone about 88,000 riders were injured.

Speculation about the increase in motorcycle injuries in Illinois and the rest of the county points to increased motorcycle sales, more powerful engines, and more older riders picking motorcycling up as a new hobby. Currently motorcycles account for about 2.4% of all registered vehicles. As a solution, the NHTSA is proposing tougher standards for helmets and more pretesting on motorcycle brakes.

Even though wearing a helmet can reduce the risk of dying in a motorcycle crash by 37%, the majority of riders are either wearing non-compliant helmets or no helmet at all. This is in part because over half of the states do not require motorcycle drivers to wear helmets. But even in the states where FMVSS 218-compliant helmets are required there are problems with counterfeit DOT decals that motorcyclists are placing on non-compliant helmets to fool law enforcement officers.

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The Illinois Supreme Court recently affirmed a ruling by the Illinois Appellate Court in favor John Van Cleve, a Maxit employee, who was injured while working. Maxit, Inc. v. John Van Cleve, et al., No. 105532.

Van Cleve was driving during his working hours when he was injured in car accident. He filed both a claim under his employer’s underinsured-motorist policy and a workers’ compensation claim against his employer. In 2004 he settled the underinsured-motorist claim for $800,000, which was to compensate for his injuries. At that point Van Cleve signed a document releasing his employer from any future claims.

Then in 2005, Van Cleve and Maxit, his employer, agreed to a $200,000 settlement of Van Cleve’s workers’ compensation claim. The settlement agreement was approved by the Industrial Commission, which is the court that handles all workers’ compensation claims.

However, even though they had agreed to the workers’ compensation settlement, Maxit later filed a lawsuit against Van Cleve alleging that he was not entitled to the workers’ compensation payment because of his earlier underinsured-motorist settlement. The trial court ruled in favor of Maxit and agreed that the earlier release barred Van Cleve from further recovery under the Workers’ Compensation Act.

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Typically Illinois courts reward and protect an injured party. For example, if one party is negligent because they ran into a stopped car at a red light, then the injured driver would normally prevail at trial. But this is not the case when the negligent driver was part of an ‘unavoidable accident’.

A recent Illinois trucking accident case ruled in favor of the defendant truck driver on summary judgment (Coole v. Central Area Recycling, 2008 WL 2955543 (4th Dist., July 28)) . The facts of the case were such that the court determined there was an ‘unavoidable accident’ so the defendant was not at fault.

In Coole, the truck driver was driving 5 mph over the speed limit as he approached an intersection; there was no stop light or stop signs controlling his movement. At the same time the plaintiff was also approaching the same intersection. She had a stop sign, but rolled through it and was struck by the defendant truck driver who was going over the legal speed limit. The truck driver contended that he didn’t have time to stop or avoid the broadside collision with Coole’s vehicle. Coole died as a result of the collision and her father brought a wrongful death lawsuit against the truck driver.

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In Illinois and most other states when an automobile owner permits another person drive their car then the driver’s negligence can be assigned to the vehicle’s owner.

For example, consider a Missouri case of Sam and his aunt Sandra [Back v. Winfield-Fire Protection Dist., No. SC 89001 (Mo. banc 2008)]. Sandra owns an automobile, but does not have a driving license, whereas her nephew, Sam, does. So when Sandra needs to go to a meeting she recruits Sam to drive her. On the way to her meeting Sam rear ended a fire truck that was partially parked in his lane with its emergency lights on.

As a result of the crash, his aunt was injured, and consequently sued her nephew and the fire protection district for negligence. Her nephew was dismissed after settling out of court with his aunt for $25,000. The case against the fire department continued on to trial, where the jury awarded $100,000 for her suffering. But because the jury found her to be 50% at fault in the accident, with the district also being 50% at fault, her damages were reduced by half.

The aunt appealed the reduction of her award by arguing that the trial court should not have instructed the jury that she could be held at fault because her nephew was negligent when he failed to keep a proper lookout. She felt that because she was a passenger she did not have a right to control it even though she owned the car.

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