Justia Lawyer Rating for Robert D. Kreisman

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In the case Riegel v. Medtronic, Inc. the U.S. Supreme Court ruled that the manufacturer of the medical device could not be sued under state law when the device causes an injury. What this means for patients is that it is now harder to file an Illinois product liability lawsuit against a maker of medical device that is FDA approved.

FDA recall video of the leads used in Medtronics pacemakers.

In its decision the Supreme Court relied on the Medical Device Amendments of 1976 (MDA) which holds that a state cannot establish regulations that are different than established by the FDA, or that are in addition to the federal requirements. Nor can state regulations supersede those laid out by the FDA regarding safety and effectiveness.

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On January 25, 2008, the Illinois Supreme Court ruled in Hudson v. City of Chicago that the re-filing of a voluntarily dismissed claim may be barred under res judicata when there is a previous involuntary dismissal of a different claim in the case.

Res judicata refers to an issue before the court that has already been decided on by another court for the same parties. In Hudson, res judicata applied because at least one claim had been involuntary dismissed in the prior case. The Court held that res judicata bars

not only every matter that was actually determined in the first suit, but also every matter that might have been raised and determined in that suit.

Oftentimes an attorney voluntary dismisses a claim when one of its other claims were dismissed in order to re-work the remaining claims and then re-file. However, attorneys now have to be careful not to fall under the banner of res judicata and thereby miss out on refiling their claims. And res judicata can even bar refiling when cases are dismissed “without prejudice”, i.e. allowing for the refiling of suit against the defendant if the defendant doesn’t follow through with the terms of settlement.

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On August 25, 2005, an Illinois law went into effect that placed monetary limits on the possible awards in medical malpractice cases (735 ILCS 5/2.1706.5). In a case against a hospital the caps are set at $1 Million, and against a physician at $500,000.

Since its inception this law has caused much debate, the most recent of which involves a November decision by the Cook County Circuit Court ruling this law to be unconstitutional. Judge Joan Diane Larsen determined that caps on non-economic damages in medical malpractice cases violates the Illinois Constitution by violating the Separation of Powers Clause. This clause states that three branches of government (legislative, executive, and judicial) are separate and that no branch shall exercise powers properly belonging to another (Illinois Constitution).

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Much has been said about the preemption of state actions for Illinois personal injury cases or Illinois wrongful death lawsuits. A recent federal district court decision ruled that a failure-to-warn lawsuit is not preempted by the federal statutes. The suit was brought by the parents of a teenager who committed suicide while taking the antidepressant Paxil.

The plaintiffs’ son was prescribed Paxil by his dermatologist, not for his acne, but to treat a psychiatric disorder in which the individual is overly concerned about real or imagined defects in their physical appearance. Shortly after the second prescription of Paxil was refilled, the plaintiff’s son committed suicide.

The parents alleged that the pharmaceutical company was liable for their son’s death because it failed to warn the physician about the risk of suicide that the drug posed to children and adolescents. The court rejected the argument raised by pharmaceutical giant, Glaxo-SmithKline (GSK), that preemption applied to this case.

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A $2.1 Million settlement was reached against the hospital and doctors in an Illinois medical negligence lawsuit involving the wrongful death of a woman from brain herniation after being discharged from a hospital. She was discharged with complaints of headaches despite a diagnosis of a brain tumor.

Mary, a 50 year-old female, was diagnosed at South Suburban Hospital with a right frontal lobe meningioma in early September, 2003, at which time she was discharged from the hospital with a referral to a University of Chicago neurosurgeon. However, before seeing the neurosurgeon she presented back to South Suburban Hospital two days later complaining of headaches and vomiting.

She is given some pain medication and sent home. Early the next morning she is found unresponsive by her husband. She was taken by ambulance back to South Suburban, but died later that day. An autopsy revealed that the cause of the Illinois woman’s wrongful death was excessive fluid building up around her tumor causing her brain to shift to the left and down through the brain stem, putting extreme pressure on her brain, resulting in brain herniation.

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A trucker whose legs were crushed while freight was being shifted on his truck agreed to a $2.5 million settlement in an Illinois personal injury lawsuit.

The accord came on the second day of jury deliberations following more than a week of trial in this case against Precoat Metals, a division of Sequa Corp. Tom, an over-the-road trucker who lived in Shullsburg, Wis., went to a Precoat facility on the Southwest Side to pick up a load of steel coils.

A forklift driver employed by Precoat had agreed to arrange other freight on the flat bed trailer that Tom was using to accommodate the steel. The freight, 20 foot long steel channels, slipped off the forklift and fell on Tom’s legs, resulting in amputation of the left leg above the knee and surgical repair of his right leg. Tom has been unable to return to his work as a trucker driver.

The steel channels, 25 to a bundle, were secured together by four steel bands. There was a codefense raised by the defendant that it was the bands that were defective that caused the channels to break apart when being lifted by Precoat’s forklift driver. However, Precoat was unable to produce the broken bands that it claimed it had stored after this occurrence. Precoat’s safety manager had testified at deposition that although the bands were stored away, they could not be found now. Before the start of the trial, Kreisman moved to bar Precoat from asserting this defense because it could not produce the item that was alleged to be the cause of the injuries to our client. The court agreed and barred any reference to the broken bands during the trial. At the end of the trial and before jury deliberation, also on motion of plaintiff, the court went to the length of instructing the jury about the law as to “missing” evidence, the bands and documents relating to the accident that were also lost. That jury instruction, Illinois Pattern Jury Instruction 5.0 was read to the jury at the conclusion of the case.

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