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Couple of interesting items I noticed in the recent Illinois Trial Lawyers Association Newsletter...

First,I see that Sen. Bill Frist is making it a "personal priority" to deal with what he perceives as a "asbestos litigation crisis". He is attempting to persuade other senators to sign onto the Fair Act(Fairness in Asbestos Injury Resolution Act). In a recent speech, he described Johns-Manville and W.R. Grace & Company as "reputable companies that had been driven into bankruptcy because of asbestos litigation". The article goes on to note that what Frist apparently doesn't know(at least we hope he doesn't know)is that Johns-Manville had been aware since the early 1930's that this incurable lung disease was killing its work force AND that it instituted a policy NOT to inform workers about x-ray findings showing them that they had developed this disease. In a memo from the medical director of the company(circa 1930), the company policy was spelled out as follows: "The fibrosis of this disease is irreversible and permanent so that eventually compensation will be paid to each of these men. BUT AS LONG AS THE MAN IS NOT DISABLED IT IS FELT HE SHOULD NOT BE TOLD OF HIS CONDITION SO THE HE CAN LIVE AND WORK IN PEACE AND THE COMPANY CAN BENEFIT BY HIS MANY YEARS OF EXPERIENCE." (emphasis added by me). Yessir, Senator, that is one class company there. Why burden a worker with knowledge about an incurable disease the company gave him? Especially if the company can get a couple more years out of him before he is to sick to walk?

Another blurb which I found interesting: The Pennsylvania Medical Society recently admitted it made unsubstantiated claims to scare citizens and lawmakers into thinking that the "medical malpractice" crisis justified changing the state constitution and changing the legal rights of injured workers. The Group had been claiming that 1700 doctors had been driven out of the state due to high insurance costs. WHOOPS! Turns out, the state had actually gained 800 doctors. I'd be curious to see if the Medical Society took any steps to correct the record once they found this error. I'm guessing they didn't.

And finally, one last blurb I saw in the newsletter deserves mention. That would be the item about Dr. Nick Stroumbakis, a Connecticut urologist who is also a leading proponent for placing caps on pain and suffering damages in Connecticut. Just a few short years ago, in 2000, the good doctor had been injured in a sledding accident when he broke his back and fractured a leg. Back in April, a jury awarded him over $6.2 million dollars in damages - with $1.4 million being for non-economic damages - i.e. pain an suffering. Apparently when questioned at a rally last year about this rather glaring inconsistency, the doctor wouldn't discuss his case. Gee, I wonder why? Possibly because he would have to admit to his appalling hypocrisy? That might be one explanation.

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Mentioned last night a recent First Appellate District case involving the responsibilities of emergency personnel responding to a fire. In Fender v. Town of Cicero, certain plaintiffs sued the Town of Cicero for its negligence when police officers responding to a fire elected not to even attempt a rescue of persons inside a burning home. The defendants moved to dismiss, citing the Tort Immunity Act, which effectively insulates municipal employees from liability under most circumstances. In this case, the fire resulted in the deaths of five children, as well as serious injuries to other plaintiffs. The trial court had granted the motion and the plaintiffs appealed.

The plaintiffs argued, in effect, that in light of the training provided to emergency personnel, the police that responded should have at least attempted a rescue. The Appellate Court though, didn't buy their argument. First, the Court noted that the immunity under the Act applies to "public safety officers", including police officers that respond to a fire. The Court went on to note that the safety personnel were immune from liability even if they don't attempt to rescue. Interestingly, the Court went on to note that even if the officers acted in a wilful and wanton manner(acting in such a way that they knew someone would get hurt)they would still be immune from liability. The Appellate Court upheld the lower court's dismissal. Bottom line: it is almost impossible to recover against a fireman or policeman for his decision not to attempt a rescue.

In Court today on a mold claim where my client basically lost her house because of mold. Several defense lawyers, who have made me jump though hoop after hoop, informed the Court today that they hadn't answered my discovery because they "never received it". Yeah, the case has been on-going for oh, nearly a year, and I haven't issued any discovery. Unbelievable. Went back and checked the file and lo and behold, I did issue discovery to them, back in January. Next month's anticipated excuse? The dog ate it....

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Bear with me if you are just checking out this site. I am in the midst of trying to figure out how to make changes to the template...and it's a tad more complicated then I thought - I have certain limitations when it comes to technology. Anyway, we'll get it figured out in the near future.

Saw a couple of interesting cases handed down by the Illinois Appellate Court. First, in Maras v. Milestone, the Second Appellate District came down with a thoughtful opinion dealing with vicarious liability, i.e. an employer's liability for the acts of an agent. In Maras, the plaintiff filed suit againts the operator of a home where her daughter lived. Plaintiff alleged that the employer was responsible for the batteries committed upon her daughter by employees of the home. It was alleged that certain employees had repeatedly struck the plaintiff. The defense moved to dismiss, arguing that th employer can't be held liable when the employee isn't acting in the scope of him employment. The trial court dismissed and the plaintiff appealed.

The Appellate Court wisely noted that a trial court shouldn't decide the "scope of employment" unless it was so obvious the no reasonable person could ever conclude the worker was acting within the scope. The Court went on to note that under some facts the employer can be liable even if the conduct was unauthorized or forbidden. An employer can be liable for the negligent, wilful, malicious, even criminal acts, if(and this is a big if)the acts were committed in the course of employment and in furtherance of the business of the employer. It appears that in this case[although not entirely clear from the record]the child[who was disabled]was injured when workers were attempting to bathe her. The Court correctly concluded that certainly physical force might be occasionally necessary for the workers in question to bathe a disabled, combative child. As a result, the Court further ruled that sadly, appropriate force might become abusive when a tired, frustrated aide is battling a disabled, uncooperative kid. As a result, the lower court's ruling was reversed.

Upon further reflection, that is enough boring legalese for one night. Tomorrow my post will include some comments about a recent case that in effect, makes it impossible to sue a fire/police department for not properly responding to a fire emergency.

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The Illinois Appellate Court, Second District, recently weighed in on the "open and obvious" debate, which involves whether certain activities or conditions will be regarded as clearly dangerous, even if encountered by children. In Allen v. Martinez, the minor plaintiff was injured when he fell while jumping on a trampoline on the property of the defendant. The plaintiff, through his parents, sued the owners of the property and alleged that they failed to warn the child of the danger and also failed to properly supervise the use of the trampoline. The defendants moved for summary judgment, arguing that the danger was open and obvious. The trial court granted the motion and the plaintiff appealed.

The child, who was 11 at the time of his injury, testified that prior to his injury, he had never been on a trampoline and only knew that "...if you jump on it, you can go higher and it looked fun." In addition he testified that it had never occurred to him that "...you could get hurt."

The Appellate Court, in ruling on the motion, first noted that the Illinois Supreme Court had held in an earlier decision that risk of injury from a trampoline was open and obvious. See Sollami v. Eaton, 201 Ill.2d 1. The Sollami opinion had held that any child old enough to be on his or her own is old enough to appreciate the dangers associated with a trampoline(i.e. getting hurt when you fall from a great height). The Court also noted that generally a landowner is not liable for harm a person suffers from an open an obvious danger unless a) the person will be distracted from the danger or b) the person will reasonably encounter the obvious risk. The Appellate Court, after disregarding an affadavit from an expert, ruled that the defendants owned no duty - the risk of injury was open and obvious.

The reason for that rather dry recitation of law, is that the opinion will likely be cited by the defendants in a case I recently filed in McHenry County, Illinois - located in the Second Appellate District. In my case, a young kid(11) was riding his bike over an unimproved lot near his house. The owners of the lot didn't maintain it and allowed kids to frequent it on foot and bikes. There were bike paths on the property and my client had only been there once before. He was on his way to a local convenience store and decided to cut through the lot. Parties unknown had apparently placed some logs on the paths in an effort to create some sort of jump. My client wasn't aware of any jump as he rode along - he hit it, fell and badly broke his hip. Now has hardware in the hip and has significant disability. One leg will likely be permanently shorter than the other. Is the landowner liable for those conditions that others had placed on his lot? How about if he had been warned that activity was going on and he hadn't taken any action? And finally, what if another kid had been injured there before my client? I expect a Motion of some sort in my case, which was just recently filed. Will advise when it comes down the pike...

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Some good news for the Enron employees who had lost millions of dollars in retirement money while management lied to them about the company's deteriorating fortunes as the company slowly went bankrupt. Last week tentative settlements were reached in two suits that will get the employees some of their money back. The larger settlement calls for certain Enron employees to hand over an $85 million dollar insurance policy that covered them against liability. This settlement resolves claims against the Enron HR staff, but not against Enron itself and Ken Lay and Jeffrey Skilling, two former Enron head honchos.

In addition, some other former directors of the company have agreed to pay $1.5 million to resolve a civil case filed against Enron by the Labor Dept. The government's suit had alleged that Enron top executives had mismanaged the retirement plans. An interesting sidenote to this settlement. It further provided that former directors, including the wife of ex-Senator Phil Gramm would be barred for five years from acting as trustees of any federally regulated pension plan.

In news closer to home, ran across an interesting blurb in the Chicago Tribune about a recently filed lawsuit. A James Degorski is suing a Cook County Corrections officer who hit Degorski while Degorski was in custody at the Cook County jail. Degorski is alleging that he suffered a fractured cheekbone and eye socket in the attack. Yeah, so? Well Degorski is one of the men currently charged with killing seven people at the Brown's Chicken and Pasta restuarant in Palatine in 1993. Although the article didn't specifically say, it appears that Degorski may be representing himself. Even lawyers have standards...

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More news regarding sexual abuse from the Catholic Church...On May 12, 2004, the Chicago Tribune reported that nine former students at the now closed Boston School for the Deaf filed suit on May 10, 2004 claiming they were physically, sexually and emotionally abused by staff at the school, inclduding nuns. The defendants either denied the allegations or refused to make any statements.

Interestingly, the Tribune reported the same day that the head of a Roman Catholic review board looking into allegations of abuse accused Catholic Bishops of trying to block the Review Panel from doing a second round of audits to ensure that children are protected from abuse in the future. Illinois Appellate Judge Ann Burke, the head of the Review Board wrote the letter to Bishop Wilton Gregory, president of the US Conference of Catholic Bishops. In the letter Burke noted that "Those who said the bishops were never serious about breaking free from the sins, crimes and bad judgment of the past will be vindicated." The bad blood stems from the apparent decision of the Bishops to wait until November to decide whether a second round of Audits would even be allowed. To quote Bishop David Ricken of Cheyenne, Wyoming, "I do believe that, after such a storm for two years, the bishops need a bit of a break to reflect on all that has happened so that we can move ahead, thoughtfully, and prayerfully, instead of rushing in and making alot of mistakes that we will regret later." What a bunch of bullshit. They should be as open and candid as possible, permitting as many audits as are necessary to get to the bottom of this mess. And clearly additional investigation is necessary, in light of the developments in Boston. But the Bishops don't want to rush in and make any "mistakes"? Like telling the truth perhaps, or providing full and good faith disclosure. Their attitude is reprehensible.

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Saw in the paper recently that the Illinois General Assembly voted to ban lawsuits accusing restuarants, food makers and and food distributors of harming the health of consumers with fattening food. The bill now sits on the desk of Governor Blagojevich, awaiting his signature. His spokesman noted that the governor is reviewing the bill and has not yet decided whether to sign it into law. Well he should. I know as a trial lawyer that on principle I should oppose any legislation restricting access to the courts. But I have to admit I agree with those who argue that people have to take some responsibility for their own actions, including what they choose to put into their mouth[in some instances over and over and over....]. Some trial lawyers argue that the law could block future recourse if science eventually discovers dangers in the food, as it did with cigarettes. I just don't see that happening, although we still don't know what the hell is in that secret sauce McDonald's puts on their Big Macs.

Also saw an interesting news release from Victims and Families United, a group aggressively fighting tort reform efforts here in Illinois. The release pointed out that The Illinois Civil Justice League, a group dedicated to tort reform and a frequent critic of Illinois courts actually was dissolved over a year ago. Seems that the group failed to file the required annual report with the Illinois Secretary of State, causing it to be dissolved involuntarily. Boy, talk about your irony. You would think that a group so passionately dedicated to improving the Illinois justice system would be capable of following the simple filing requirements of the Secretary of State.

But wait, there's more. Ed Murnane is one of the principals behind the ICJL and is a particularly vocal critic of the justice system in Illinois. Has written extensively on how people run to court too frequently and that all kinds of reforms are necessary. Well, seems he too has resorted to the courts on occasion. The press release indicates that back in the 80's when Murnane's business was in trouble, he didn't hesitate to take advantage of the legal system - specifically the Bankruptcy Courts. He apparently filed a Chapter 13 plan for his failing public relations business. The release indicates Murnane defaulted twice on the bankruptcy and tried to avoid paying back taxes. Ultimately, unsecured creditors received nothing in the settlement. Another fine example of a tort reformer practicing hypocrisy.

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Saw an interesting article in Crain's Chicago Business the other day. The article, written by Sarah A. Klein detailed how physicians are all over the caps on recoveries in medical malpractice cases....until of course that physician is a victim of malpractice. Then their passion for caps drops rather abruptly. The article discusses Larry P. Wasser, a 61 year old retired oncologist in Kankakee. Dr. Wasser describes how he found being sued[in a case where he was ultimately dismissed]"...very traumatic". Well, his apparent dislike for lawsuits didn't bother him when he thought he was the victim of malpractice. After an orthopedic surgeon performed a three level fusion(instead of a four level fusion) he promptly filed suit against the surgeon. Wasser claims the allegedly botched surgery left him with on-going pain that cut his medical career short. To his credit, Wasser admits "I look at (malpractice)from a different point of view now." In the article, a lawyer who has represented several doctors as plaintiffs in medical malpractice notes: "If everyone had the attitude that the [physician plaintiffs]do, there would be more malpractice lawsuits." In addition, the article quotes another well known Chicago personal injury lawyer who captures the hypocrisy among those who argue so stridently for caps: "People can absorb unending amounts of pain, suffering, sorrow and loss of life, provided one thing prevails: It happens to someone else."

Have been getting a rash of folks calling wanting to hire me to prosecute consumer fraud related complaints. One lady called from Boston wanting to sue a guy who had sold her a car over the internet for $35,000 - but there was a hitch. He didn't own the car. He lied to her about providing title and also lied to her about the background of the car[it had been in a very serious accident and had been essentially rebuilt]. So she's out a ton of dough and can't even drive the stupid car.

In addition, was approached by a young woman who got screwed around by a mortgage company. They promised her an interest rate of 5.6 when she first contacted them. Over the course of the next several months the company delayed and delayed. Finally when the closing went forward, they told her the interest rate would be 8.5. When she hesitated, the construction company(the house was new construction)told her if she didn't close they would keep her earnest money of nearly $9000 - so she was really between a rock and a hard place. Either walk away and take a $9000 hit or go through with the closing and pay hundreds of thousands more in interest charges over the course of the loan. Although these aren't huge cases, I am appalled at what people/companies try to get away with these days. I may take a couple of these cases on as a change of pace to see if they can be litigated profitably -my heart says take them and help these people out, but I do have concerns they could ultimately eat up huge amounts of my time. We'll see.

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And just when you thought everything was so nice on the Friends set...A former writing assistant has filed a sexual harassment suit against the show's production company, its studio and some of the individual writers. Ms. Amaani Lyle recently had her case reinstated by the California Appeals Court. Ms. Lyle alleged in her court papers that she was constantly exposed to male writers discussing fantasy sex with Courteney Cox and Jennifer Anniston(do you think Lisa Kudrow is offended by being left out?). In addition, the other writers allegedly repeatedly questioned David Schwimmer's sexuality. The defendant writers, not suprisingly, have been there for each other, and have denied the allegations.

And a quick note from the Why People Hate Lawyers Dept. In Cohen v. McDonald's Corp. the plaintiff alleged that McDonald's committed consumer fraud in misrepresenting the nutritional value and quality of McDonald's food products. He specificallly aimed at(gasp!) the Happy Meal. McDonald's defended saying that his claim was pre-empted by federal law and FDA regulations, and argued that only the FDA can regulate nutritional labeling. The trial judge dismissed the claim and the Illinois Appellate Court thankfully, upheld the lower court's dismissal. If the case had gone forward, tort reform groups would no doubt have taken out newspaper ads describing how Ronald McDonald had to leave the state because of the Happy Meal Litigation Crisis.