Closing Argument

A trial lawyer's commentary on his practice, developments in the law, and occasionally, life in general.

Name:

I hope you enjoy my blog. I am a trial attorney with offices at 100 West Monroe, Suite 1900, Chicago, Illinois. A large portion of my practice involves the representation of persons who have been injured due to auto accidents, work accidents or medical malpractice. In addition, I also also represent a select number of clients with business, commercial or employment disputes. If you wish to talk to me about a case, please contact me at my office, 312/346-3715 or email me at markploftus@aol.com

Wednesday, March 31, 2004

Contact me at markploftus@aol.com

Have spent the last three days compiling discovery responses in a property damage case where a homeowner basically lost her home because a siding contractor failed to properly protect the property after he removed the siding. Water got in after heavy rainstorms, then mold grew and testing revealed unhealthy levels of contaminants in the house. My clients were forced to live in a series of rental properties for a year while a remediation company tried to get rid of the mold. Tomorrow will finish answering the last defendant's discovery. I will be all caught up and can start pressing the defendants on their failure to timely file answers.

In an interesting side note, the owner of the property found a buyer for the home and wants to sell it and move on with her life. Unfortunately the defendants all object to her transferring possession until they have had an opportunity to go through the property. So the client is forced into a position where she can close on the sale of the home, but can't transfer possession for some time. After all she has gone through she now has to pay rent on the house to the new owner until she is given the okay to transfer the property. The client, remarkably, has kept her sense of humor while her life has been turned upside down.

Was approached the other day by a new client who wants me to represent her in a consumer fraud case against a local car dealership who sold her a damaged car. In addition, they misrepresented the car history. They told her the car had one previous owner, a young girl whose father had brought her the car. According to the salesman, the young lady traded it in because she didn't like the color. In actuality, the car had been purchased as a rental vehicle shortly after it came off the assembly line. Shortly thereafter it was involved in an accident, and then sold at auction. Then the dealership in question purchased the car. I've done some investigation and it appears this dealership has a history of misrepresenting the condition of cars to buyers[talked to a former salesman who was suprisingly candid about the scams the salesmen pulled]. The actual damages at this point however,don't appear to be large. In consumer fraud cases however, the prevailing party may be entitled to attorney fees. I am awaiting some additional information to determine if I will go ahead and file suit. Will update in future posts...

Wednesday, March 24, 2004

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Saw an interesting negligent hiring case recently decided by the Illinois Appellate Court. Illinois law permits person injured by employees with violent propensities to recover against the employer where the employment created a situation where the employee's violent tendencies harmed the plaintiff. In Elliot v. Williams, the plaintiff, Hedy Elliot was staying at an apartment complex where the owner/manager had hired Titan Security to provide necessary security. Elliot alleged that she had been staying with a friend who lived in the building and earlier in the day she had gone shopping. Upon her return, she had an armload of packages and a soda. She was struggling to open a door when a security guard opened it for her. She had a brief conversation with the guard while waiting for the elevator.

At 10:30 pm that evening, the guard came up to the apartment and asked the plaintiff to join him for a drink. The plaintiff declined.

Sometime between 11:45 pm and 2 am, the guard called and asked if he could come up to the apartment. Again, the plaintiff declined. He called again a short while later, saying he had a gift. After initially refusing, the plaintiff agreed to let him up. She opened the door when she heard the guard's knock. Shortly thereafter the plaintiff was assaulted. The guard was arrested, tried and convicted of assault. The plaintiff filed a negligent hiring claim against Titan for failed to conduct an appropriate background check on the guard. The agency filed a motion for summary judgment basically arguing that their hiring of the guard was not the cause of the accident - - instead, it was the plaintiff's act in opening the door. The trial judge granted the agency's Motion, dismissing the case against the agency.

The Appellate Court, thankfully, looked at the case a bit differently than the trial judge. The Court found that there was a genuine issue of fact(i.e something a jury should decide)whether Titan's hiring of the guard, without a background check(which would have revealed a criminal past) was a cause of the jury. The Court noted that the plaintiff's decision to open the door was based in part, upon her knowledge that the guy she was opening the door for was a security guard. Furthermore, the Court ruled that the agency should should have known that it was not unlikely that a resident or guest would open their door to security personnel working in the building. The decision of the trial judge was reversed, and the case was sent back down to the trial level, so that the case could continue.

This case is similar to a case I settled a couple of years ago. My client was badly beaten by security guards from a bar after an altercation in the bar. I had a negligent hiring count, wherein I alleged that several of the guards had criminal backgrounds that hadn't been checked out before they were hired. The defense denied any of them had backgrounds and I actually had to get the expunged records to show that one of the guards had been charged with one murder and a battery upon a woman shortly before the incident with my client. My theory was that the bar should not have hired guys with violent tendencies to work in a security position. The defense ultimately agreed and paid a large settlement.

Tuesday, March 23, 2004

Contact me at markploftus@aol.com

Interesting verdict came out of a Joplin, Missouri courtroom last week. The plaintiff, Eric Peoples, had filed suit against the manufacturers of butter flavoring used in microwave popcorn. Mr. Peoples had worked at a microwave popcorn factor and was apparently exposed to certain vapors from the butter flavoring. He claimed that the vapors from the flavoring had ruined his lungs. He further claimed that the manufacturers, International Flavors and Fragances Inc. knew the vapors were hazardous, but failed to warn workers. Mr. Peoples alleged that as a result of his exposure, his lungs had been irreparably damaged and that he needed a double lung transplant. The jury, after deliberating just 3 hours, awarded him $18 million and $2 million to his wife.

It certainly didn't help the defense that at least one independent testing agency had linked exposure of the vapors to lung disease in workers in Illinois, Iowa and Nebraska.
The report I saw indicated that although health officials insist people who eat microwave popcorn are not in danger, the EPA is looking into the chemicals released into the air when a bag of microwave popcorn in popped. A second trial is scheduled to begin in Missouri in April and there are additional cases pending in Illinois and Iowa.

Friday, March 19, 2004

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I wanted to be done with the tort reform propoganda, but it is in the news so much now that I have to comment on some of the stuff I see. On March 16, 2004 Treasury Secretary John Snow said "runaway lawsuits" were costing American jobs, and also urged an overhaul of personal injury lawsuits.

One of the news organizations obtained draft notes for the speech, which is apparently the opening salvo in the Bush administration's move to dramatically alter our legal system. Snow called for Congress to take steps to "rein in" personal injury lawyers and actually had the nerve to liken the situation to recent abuses by corporate big shots.

Couple of comments about Snow...

This guy is either incredibly ignorant, tragically ill-informed or both. The guys at Enron and Tyco stole money to fund lavish lifestyles. Their actions bankrupted large companies and put thousands of people out of work. And those same employees saw their retirement plans go up in smoke as company assets were used to pay millions in civil fines.

I am a trial lawyer. A good portion of my practice involves the representation of injured people. After 18 years I continue to think that what I do is good and noble work. Most of my personal injury clients can't afford to pay me on an hourly basis. So I have contingent fee agreement - - I don't receive a professional fee unless there is a settlement or a verdict. I am required to fund these cases from inception through trial. Depending on the complexity of the case, I may have $40,000 to $50,000 of my own money invested in a case at the time of trial, exclusive of the cost of my time. I recently learned that a friend of mine had invested over $250,000 of his own money in a particularly complicated medical malpractice case.

Typically, I only file cases where the defendant(s) has a liability policy in place. That means that the costs of his defense, and any judgment will be borne by the insurance company and not the defendant. The lawyers hired by the insurance companies are paid by the hour. If there is any sort of flaw in my case, the defense lawyers are quick to file multiple motions to have the case dismissed. The case is regularly reviewed by a judge to ensure that it is moving along at a satisfactory rate.

This notion of "frivolous lawsuits" in my experience is a fiction created by the insurance industry. In my experience, juries over the last 20 years have become much more sophisticated. The law requires I prove negligence and injury before my client can recover. And jurors read those instructions and insist I prove each and every element of my case before considering damages.

And contrary to what you may see or read, juries in injury cases aren't moved these days by "soft tissue" cases where the injury lis limited to subjective, generic injuries like neck sprain. In those cases you would be lucky to recover your medical expenses I don't take those cases anymore, and most trial lawyers I know don't take them. We don't take them because the inevitably small verdict makes taking the case a poor business decision.

In more serious injury cases, jurors are instructed to award fair and reasonable damages if the plaintiff has proved negligence. The jurors hear the evidence, go back to the jury room and argue about what should be awarded. The resulting verdict is the collective wisdom of 12 members of the community. In Cook County, Illinois, where most of my cases are located, it will typically take some 24 to 36 months to get a case to trial. So on those cases that go to trial, it will be some 2 to 3 years before I get a fee. And if there is an appeal, it could be 4 years or more.

When I first started my practice, I filed some iffy cases, where the liability was a stretch, or the was no significant injury. I don't do that anymore. I don't want to burden the system with silly cases.

Nowadays, I only want cases where there has been an obvious injury and resulting harm. I work very hard to investigate the case and put it together in such a way that a jury will see the harm and try and remedy it. I still get a thrill when even in a small way I help correct a wrong. And I don't apologize for taking a fee when that occurs. I am proud of what I do for a living. And I would be happy to inform Snow of that fact if and when he gets his head out of his ass.

Wednesday, March 17, 2004

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I've noted a couple of interesting articles in Illinois papers relating to "tort reform". The Chicago Tribune noted on March 11, 2004 that ISMIE, the state's largest medical malpractice insurer would be raising their rates only 7.4% in the next year. The rate increase is much smaller than the '03 increase(35%). It should be noted, that if in fact, there was some sort of litigation crisis, wouldn't the premiums continue to skyrocket? ISMIE however, insists that the malpractice crisis is not over. They attributed the lower rate increase to "aggressive defense against non-meritorious claims". Well, if they are aggressively defending claims(and they do, believe me) wouldn't their costs go up? And wouldn't they counter those costs by significantly increasing premiums? But those premiums aren't being increased. Makes you wonder about the veracity of all those claims that doctors are giving up their practices because of outrageous insurance premiums.

Interviewed a client recently on a potential legal malpractice claim - in other words, I would be suing her lawyer for screwing up her case. I look long and hard at legal cases because they can be hard to prove. But this one wouldn't very hard. It involves an elderly couple who are injured in a car accident in the early 90's. They go to a friend/attorney and he says he will represent them. He files suit in 1992. The case is dismissed for want of prosecution in 1993(ther was a status hearing on the case and the lawyer never showed up). The lawyer is then usually notified of the dismissal via postcard. Typically, the attorney brings a Motion to Vacate the dismissal within 30 days of the entry of the order and 99% of the judges will reinstate the case, no questions asked. Well this lawyer never filed the motion. Ever. And to make matters worse, he repeatedly told the client(and me) the case had "slipped through the cracks" and would be coming up for trial soon. The client finally got my name through a former client and I ordered the file out of storage. I was pretty stunned when I learned the case had been dismissed for 11 years and the client never advised. And to make matters worse, there is a statute of repose in Illinois regarding legal mal cases. In other words, there is a statute that says you have to file suit against a lawyer within 6 years of the malpractice or your case is barred. Thankfully, there is some caselaw that allows that deadline to be extended if you didn't discover discover the malpractice until some time later. Hopefully, in light of the egregious conduct, his carrier will want to settle the case so the allegations never see the light of day. Hard not to hate lawyers when this stuff happens to innocent people.

Tuesday, March 09, 2004

Contact me at markploftus@aol.com

An interesting jury verdict came down last week in Chicago. A woman who had become infected with HIV through sexual contact with her boyfriend sued his parents for allegedly lying to her about his medical condition. Both sides stipulated that the man had in fact been responsible for transmitting the disease to the plaintiff in 1996. The plaintiff alleged that in 1997 she asked her boyfriend's parents if he had AIDS and they denied it. She further claimed that she asked them on additional occasions up until the time of her boyfriend's death[in 1999]and the parents denied it. The defense was that they truly did not know, and even if they had, they were precluded by confidentiality laws from providing the information to her.

The plaintiff's theory was that the parents did indeed owe her a duty because they had assumed a central role in the healthcare of their son after he was diagnosed with AIDS in 1992. The plaintiff presented proof that when the son was questioned, he would tell the plaintiff to ask his parents because they were "in charge" of his medical care.

The case seemingly was decided on testimony provided by the ex-husband of the deceased boyfriend's sister who claimed in an affadavit that he had talked with the parents a year before the son died and the mother had acknowledged he was suffering from AIDS at that time. The case had been tried once before and the jury had been unable to reach a verdict. This time around the jury awarded the plaintiff $2 million dollars. Incidentally the plaintiff is now suffering from full blown AIDS which has destroyed her immune system.

The jury's decision will likely be appealed. And the case does raise some interesting issues...particularly on the confidentiality front. I frankly don't see how the statements by the plaintiff that his parents were "in charge" eliminates his duty to tell the plaintiff. There was nothing in the news accounts I read suggesting that the boyfriend was somehow incompetent or incapable of handling his affairs. And under the law in Illinois it is illegal to release information about a person's HIV status without their consent. I will keep you posted on this case as it winds its way through the appeal process.

In addition, a recent decision from the First Appellate Court of Illinois overturned a jury verdict rendered on behalf of a guest who was seriously injured while staying at a large national hotel. The plaintiff, a pilot, suffered serious injuries when he turned on a vanity light switch in the bathroom in his room. At the time he did so he received an electric shock and saw a spark, causing him to move backwards, ultimately injuring his right shoulder and arm. He claimed that as a result of the incident he lost his license and could no longer fly. The jury returned a verdict against the hotel, and it was appealed.

In short, without boring you to tears, the Appellate Court ruled that the it was not reasonable for the Hotel to anticipate the danger of an electric shock to the plaintiff from a light switch. They came to that conclusion based on some evidence that typically the electricity would go back to the breaker and not to the switch. In addition the Court noted that the plaintiff hadn't presented any expert evidence showing how the electricity would go to the switch - and furthermore, hadn't presented any evidence that the switch itself was defective. As a result, the Court ruled that the electric shock the plaintiff received was not reasonably foreseeable. So be careful the next time you need to go to the bathroom in your hotel and you flip on that bathroom light. If you get blasted with electricity the hotel won't be held accountible.

Monday, March 08, 2004

Contact me at markploftus@aol.com

The Chicago Tribune ran a two part series on class action lawsuits and their abuses in the paper on March 7 and 8. The article made note of several cases where the actual recovery for the plaintiffs was mimimal while the legal fees were quite large. Some examples included a class action against the City of Wichita Kansas for wrongfully jailing 7000 misdemeanor defendants. Each plaintiff received $500 while the lawyers split up $1 million. Or the action against Mercedes Benz for failing to warn owners that non-synthetic oil could cause damage to the car. In that case, the car owners received vouchers of $35 for oil changes and their warranties were modified. The attorneys earned fees of $5 million. So it would be hard to argue that sometimes the results in some of these class actions benefit only the lawyers who file them. Our legal system isn't perfect. The authors did admit though, that after reviewing 300 separate state and federal class-action settlements, nearly one third of those actions did prompt reforms of improper practices such as forced overtime, or the surreptitious use of inferior auto parts in repairs. In addition, the article also noted that in only 10% of the reviewed cases did it appear that lawyers actually reaped more rewards than litigants. So based on the Tribune's analysis, 90% of the class actions they studied would appear to be legitimate. That's a pretty good batting average.

The second part of the article was supposed to explain why class action lawyers were selecting Madison County, Illinois as the place to file their class action claims. Unfortunately, the article I read[Chicago Tribune Internet version] simply discussed one particularly byzantine class action growing out of attempts to recover funds from an individual who had allegedly wrongfully obtained millions of dollars from unsuspecting consumers through a variety of different means. Okay, that case was a mess - doesn't look like the victims will see much in the way of recovery. But one case? They could only come up with one case? The Chamber of Commerce folks are calling Madison County the number one legal hellhole in Illinois - and the Tribune comes up with one case? I certainly would have liked to see some more examples of why Madison County is such a bad place. In all candor though, it is just more of the same. When the "tort reform" people get worked up, they bluster on and on about all that is wrong with our legal system, but then can't really offer much in the way of meaningful examples. And they never seem to offer much in the way of improvements. Are there areas in our legal system that can be improved? Absolutely. It is far from perfect. But most trial attorneys will tell you that juries usually do the right thing, based on the evidence. So be wary of those who want to "improve" our legal system by stripping away certain bedrock principles like trial by a jury of one's peers. Those people don't want to improve the legal system. They want to eliminate it.

Monday, March 01, 2004

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Couple significant legal developments from across the Country....

First, I am pleased to report that Senate Bill S.2061 did not pass in the United States Senate last week. Said bill, contained a number of "tort deform" measures relating to Ob/Gyn medical malpractice cases including the limitation of "non-economic damages" (i.e. pain and suffering")to $250,000. The AMA has indicated that "medical liability reform" is their number one priority, so I anticipate additional efforts in the future, particularly if the current president is re-elected. For a good explanation of why limitations on damages are a REALLY bad idea, see my last post outlining a recent medical malpractice settlement in Illinois.

In addition, the jury that heard the IBM semi-conductor trial returned a verdict for the defense. In that case, out of Santa Clara, California, two former workers at IBM had alleged that IBM had misled workers about the dangers of certain chemical they were working with, and as a result, both workers ultimately were diagnosed with cancer. The jury had apparently been instructed that the plaintiffs were required to prove "fraudulent concealment" on the part of IBM which may have been too tough a burden for the plaintiffs. In addition, the trial judge had ruled that the jury could not award punitive damages because the plaintiffs had not proven that IBM had a policy that encouraged management to conceal the dangers of the workplace. This is hardly the end for IBM though - at least 200 other similar cases are on file with the next trial scheduled to begin tomorrow in New York.

Finally, the United States Supreme Court ruled last week that younger workers can't sue their employers when older workers get preferential treatment. The Court, in a 6-3 ruling held that the law that protects older employees from age discrimination doesn't work in reverse.