RANDOM RECENT DEVELOPMENTS

Met with a nice older man today who got screwed for exercising his rights. He got hurt at work and told his supervisor about it. Not surprisingly, the supervisor ignores it. The client keeps after him and keeps getting ignored. Ultimately, client has to hire a lawyer who files a comp claim for him. A week after he files his comp claim, guess what? They fire him. Call it an "economic slowdown". But the client swears he had been busy as all get out for the previous two years. The clear inference is that the employer didn't like the fact my client filed a comp claim, so they decide they'll show him - so they fire him and make up a story to cover their asses. Seeing more and more of these cases, where employers treat their workers like crap and expect to get away with it.

In addition, was just retained in a personal injury case against a local transportation company. My client, a charming 68 year old man with some health problems was being transported for medical treatment when the company basically dropped him onto the ground. They didn't properly secure him before they began the transfer from the ground into the bus. My client suffered a badly broken arm and hip injuries. The really bad thing though, is that the client now can't get around at all. He was ambulatory before the fall and occasionally used a walker for longer distances. Well, with the broken arm, he can't get around at all because he can no longer use his arm on the walker. He is now basically bed bound. They defendants seem to have taken away the limited mobility he had. I just finished the complaint and will request the case be advanced due to my client's age and complicated medical picture.

Finally, had an interesting development in a depo the other day. The deponent was a local doctor who was acting as an "independent medical examiner" for the employer in a Worker's comp claim. These guys are hired by insurance companies/employers to offer opinions about work injuries. He saw my client one time and to no one's surprise, opined with great certainty that the injury was NOT work-related, but due to a pre-existing injury or some sort. Of course there is absolutely no evidence of pre-existing accident or trauma which would have caused the injury, but that didn't bother the good doctor. He just knows that there has to be a cause other than the work injury. And he reached that opinion even though the patient's treating surgeon has already the injury happened at work. But that wasn't the best part. The witness acknowledged, with some discomfort, that he did a fair amount of medical/legal consulting(i.e. offering opinions for employers that the injuries employees have didn't arise at work). And he also begrudgingly acknowledged that most of the time(80% of the time to be precise) he testified for the defense, be it an employer or insurance company. And he also acknowledged that roughly 10% of his income came from his "consulting" work. But he refused to testify just how much money that 10% translated into. Said it wasn't "relevant". I couldn't have asked for a better answer. Hell, I really don't care what the number is now. I much prefer to inform the judge that the doctor won't divulge it. Gosh, I wonder why? Maybe because it is A WHOLE LOT OF MONEY? And he won't seem so "independent" if those numbers were released? Just a thought. Thanks doc.

WILLIAM KENNEDY SMITH LAWSUIT

Read a copy of the William Kennedy Smith lawsuit today at the Smoking Gun.com. Interesting pleading. Have to admit - I probably wouldn't have filed this lawsuit. Way too many facts that have to be explained away to a jury. By way of background, the plaintiff alleges she and Smith worked together from 1997 through late 1999. One January evening in 1999, plaintiff and some friends went out to celebrate a birthday. Smith, it is alleged, showed up uninvited. The complaint says that Smith "encouraged" the plaintiff and others to drink excessive amounts of alcohol, which he purchased. Hardly a shock there - on any given night in bars across America, lots of guys in bars are encouraging young women to drink excessive amounts of alcohol. The women can always turn down the booze with a simple "No thanks, I don't want another drink" or get up and walk out.

After dinner, plaintiff and her companions decided to go to another bar - and Smith was not invited. But he jumps in the cab anyway and off they go to another bar. Couple of issues starting to percolate here. Plaintiff apparently admits having lots to drink at the first bar. She then goes to another bar and drinks some more. She has all but admitted that she was intoxicated - so one defense will likely be that her version of events can't be trusted because she was drunk. I'm assuming that Mr. O'Reilly has touched base with her friends from that evening who will corroborate her testimony.

And I am a little troubled by the suggestion that she couldn't get rid of Smith. From what I recall, most women can lose an overly attentive guy in any variety of ways. Hell, I'm still waiting for one date to return from the ladies room - she's been in there since 1988. Fact is, she and Kennedy continued drinking for a couple of hours after plaintiff's friends had left. Plaintiff alleges that during that time, Smith "continued" purchasing drinks for plaintiff "causing" her intoxication. Those facts are a bit troubling as well. Again, why didn't she stop drinking and just go home? The defense is likely going to portray this as just another regrettable evening brought about by heavy drinking. Then the bar closes. According to the complaint, Smith demands they share a cab, though they live in different directions. The cab goes to his house and according to the complaint, he forcefully directs plaintiff into his home and ultimately into hi bedroom where he allegedly assaults her.

Only two people know for sure what went on that night. The allegations are far too serious to dismiss out of hand. And there are additional allegations that Smith had harassed other women at the CIR. Those facts, if true, could prove troubling to Smith.

But there are other facts that have come to light that raise questions about the plaintiff's case and her motives. For example, it appears by all accounts that although plaintiff advised some friends and co-workers, she never contacted the police. The defense will suggest that anybody who was assaulted as she alleges would certainly go to the police. And then there is the fact that she and Smith apparently dated for some time after this occurred. That is a particularly tough fact to get around. I know her explanation is that it wasn't a tender, loving relationship, but one where she was "dominated" for sexual purposes. She was seeing a famous, wealthy, accomplished man, some 20 years her senior. Of course it was about sex.

And then there's the argument about her motives. She's out of work, broke and has lots of debt. A large settlement or verdict would take some of that pressure off.

Smith has hired Dan Webb to represent him. Webb is one of the best trial lawyers in Chicago, if not the country. He is no stranger to high-profile cases. I think Smith is sending a signal that he intends to fight this thing all the way. Plaintiff is in for a bruising battle. I hope she knows what she is getting into.

RESIDENTIAL REAL PROPERTY DISCLOSURE ACT DOES NOT APPLY TO UNINHABITABLE HOUSE

Couple more cases of note from the Appellate Court...

In Grady v. Sikorski the First District Appellate Court was faced with a novel question - did the Illinois Residential Real Property Disclosure Act apply to a transaction where the structure on the property is an uninhabitable building? The Act basically provides that when selling residential real estate, the seller must complete a form basically certifying that seller is unaware of any problems regarding flooding, foundation cracks, plumbing problems, termites or other problems. In the Grady case, the property Ms. Grady wanted to buy was located on North Damen and consisted of a lot with a two story building. Grady intended to knock it down and build condos. When she toured the building it was stripped and lacked the basic amenities to live, like water, lighting, furnace etc. After purchase, she learned the building was on soft soil to a depth of 27 feet. In order to put the building up, she had to use caissons, or large support structures she hadn't planned on using. She incurred additional expense of some $60,000. She sued Sikorski under the Act for not telling her about the soil. Discovery revealed he knew about the soil but did not tell Grady. His lawyer said a disclosure form wasn't done because it was a vacant property. The case went to trial and Sikorski won. Grady appealed. The Appellate Court upheld the lower court. The Appellate Court ruled that the Act doesn't apply to property that includes an uninhabitable structure. Okay as far as the statutory cause of action goes. But what about fraud? If the seller knew the buyer wanted to tear the building down and rebuild, the soil quality was an obvious issue. And the seller didn't provide important information to the buyer[information the seller had in his possession indicating the soil was soft]. Hopefully there was a fraud count in the complaint.

INJURY GETTING OUT OF CAR ISN'T A COMP INJURY

In Vill v. Loyola, a security guard brought a Workers' Comp claim after being injured in the Loyola Hospital parking lot. After arriving at work, she parked in lot 15; the only lot in which security personnel were allowed to park. The lot was crowded that day and she was kind of boxed into the spot. She testified that as she tried to squeeze out of the car, she twisted her knee and her foot got caught and she suffered injuries to her left foot. She ultimately was off work some 3 months and went to trial on her comp claim. She won at trial, with the arbitrator ordering her employer to pay her some medical expenses and TTD. Loyola appealed ot the Industrial Commission. The Commission reversed the arbitrator, saying she didn't prove she received her injuries due to her employment. The employee appealed to the Circuit Court of Cook County which upheld the ruling. The worker then appealed to the Appellate Court - to no avail. The Court found that she was hurt trying to squeeze out of her car, a risk that faces all members of the public who drive. The Court upheld the decision of the Circuit Court.

This case impacts on a very similar case I have against a local hospital. I represent a nurse who suffered a terrible fracture of her leg after slipping on metal near the entry door off the lot in which she parked. In my case, the employer told he where to park - she had no other choice. I am hoping that carries the day for me, but this decision doesn't particularly help.

NO DUTY TO HAVE DEFIBRILLATOR ON PREMISES

Couple of cases I've seen in the last couple of weeks that merit comment.

In Salte v. YMCA, the Second District Appellate Court of Illinois faced the question of whether a health club has a duty to have defibrillators on site for emergencies. Terry Salte was exercising at a YMCA health club on one of the treadmills. The YMCA employed a paramedic who was on duty that day, a couple of machines over, helping another member. Salte suffered cardiac arrest while on the treadmill. It isn't clear what steps the paramedic took to assist him prior to the arrival of county paramedics, but because the YMCA did not have a defibrillator on site, no such device was used. The plaintiff alleged that the YMCA had a duty to equip their paramedic personnel with such a device, and their failure to do so caused him significant physical damage. The defendant filed a motion to dismiss which was granted by the trial court. The plaintiff appealed but didn't get any relief. The Appellate Court first noted that typically in Illinois, one has no duty to rescue an injured stranger if that person hadn't caused the injury. The opinion went on however, to recognize some exceptions to that rule, including those situations where a legitimate business customer is injured on business premises. So the Court did conclude the YMCA had a duty to render first aid to Salte. But the Court found that that's where their duty ended. The Appellate Court explictly found that the YMCA did not have a duty to have a defibrillator on its premises or to use it on plaintiff. The lower court's ruling was upheld.

NO BREAK FOR VISUALLY IMPAIRED PEDESTRIAN

In another case[that has implications for at least one of my cases], a visually impaired pedestrian was injured due to a sidewalk defect as she walked down the street. The case is Postran v. City of Chicago. Ms. Postran was walking to her bus stop one day and saw that some repairs were being done on the sidewalk she intended to walk over, where it met with the alley. She noticed the work when she was 4-5 sidewalk squares away. The repairs, by her own admission, were significant - with a couple of sidewalk squares dug up, and the resulting trench at least 6 inches deep. She noticed all that before she arrived at the area of the repairs. Nonetheless, she tried to walk over the area, fell and suffered a wrist injury. She sued the City and the City asked the trial court to toss the case based on the "open and obvious doctrine". That doctrine basically says that landowners are not required to protect against injuries from conditions that are open and obvious. The courts have defined the "open and obvious" phrase to mean conditions that would be recognized by a reasonable person. Plaintiff, who recognized there were problems with the open and obvious issue, tried to skirt them by offering testimony about her visual disability. She testified that she had been blind in her left eye for nearly 40 years and had visual problems in the right eye as well. The trial court nonetheless threw the case out. And plaintiff appealed. On appeal the plaintiff argued that the City was required to prove that the dangerous condition was open and obvious to a person with similar disabilities - i.e. someone who doesn't see well. The Appellate Court didn't quite agree and noted that when a person is under a disability, like bad vision, they will be held to the standard of a reasonable person with a similar disability. The Court went on to find that the condition of the sidewalk, and the risk of walking on it, were obvious and would have been recognized by either a person with perfect eyesight or poor eyesight. The Court ruled that even assuming the plaintiff had difficulty seeing, the defect was still open and obvious. The court also found that the plaintiff couldn't rely on the exception to the open and obvious rule[which I wouldn't discuss]. The lower court's ruling was upheld.

LEGAL HEADLINES AND MORE

After going on in the last post how I think the prosecution will drop their case against Kobe Bryant, saw an article in the August 9, 2004 Sports Illustrated that makes me a little less certain. According to the article, in the Scoreboard section and written by Jeff Benedict, the prosecution intends to subpoena a 22 year old Florida woman who had an alleged run-in with Bryant at the Orlando, Florida home of Shaquille O'Neal in November of 2002. The Lakers were playing the Orlando Magic and Shaq was hosting a team party at his 26,000 square foot home in Orlando. The woman was an employee of the Orlando Planet Hollywood restuarant that was staffing the party. She alleges that Bryant approached her and asked for her cell phone number, which she gave to him. Later, he asked her to get him a soft drink and bring it to him outside. When she did, she alleges Bryant cornered her and groped her private parts. She claims Bryant laughed as she pushed him away and retreated inside. The next day the woman got a call from an "associate" of Bryant's who apologized for Bryant's behavior. [Very classy - cell phone apology from a hanger-on]. The woman didn't report the incident to the police. But afer seeing Bryant's news conference in July of 2003 in which he claimed "I didn't force her to do anything against her will..." she called the Colorado prosecutors and told her story. The Florida woman has apparently had second thoughts about testifying after observing how Bryant's accuser has been treated. The prosecution however, has apparently subpoeaned her. That presents a bit of a problem for Bryant. If he doesn't testify he can't say what happened in Colorado was consensual. If he does testify however, the judge may allow the State to call the Florida woman as a rebuttal witness to testify as to a similar occurrence. And I heard today the State may just put the case on and see where what happens...

And according to the Drudge Report, an Army National Guard reservist has taken the highly unusual step of filing suit to assert that the Government can't prevent National Guard Reservists from leaving military duty when their enlistment period ends. The reservist, who is married with two children, is seeking release from the Army when his term ends in December. The case is pending in Northern California and the Army has yet to respond....

And as long as we are touching on politics, glad to see Senator Harkin firing back at Vice President Cheney yesterday. Cheney, our president's attack dog, had mocked Senator Kerry after Kerry had remarked he would fight a more "sensitive" war on terror. Harkin in effect said that Cheney, who received 5 separate deferments during Viet Nam because he had "different priorities" was a coward for staying home during Viet Nam, and should shut the hell up. About time somebody pointed out the hypocrisy of all these chicken hawk suggesting Kerry isn't tough...

Tort Reform News...

Saw a reprint of an August 1, 2004 LA Times article discussing the merits of caps on damages in med mal cases. The article was written by Lisa Girion. The article discussed the difficulty victims of malpractice have in getting legal representation due to the $250,000 limit on non economic damages such as pain and suffering. A number of politicians, including President Bush, have embraced the reforms in California as a national model for tort reform. Supporters argue that since the caps took effect, insurance rates have risen less than half the national average. But what they don't mention that there has been no decline in the number of cases filed. So in California, at least, caps on damages doesn't translate to a reduction in lawsuit filing.

BACK IN THE SADDLE

Haven't had the time to post since returning from vacation a couple of weeks ago for a variety of reasons. First, had a mountain of work upon my return and had to attend to that. Secondly, my secretary recently quit, so everyday I was bogged down in administrative/secretarial crap that takes way too much time. Finally, after a couple of weeks of putting out fires and typing my own Notices for hearings, I'm reasonably caught up.

So I have lots of new Illinois Appellate decisions to discuss, as well as some interesting developments in the Illinois Tort Deform wars, Illinois politics(how about that Alan Keyes - God, the Republic Party must be proud) and the Presidential race - heard noted scholar Sean Hannity tearing into John Edward today for being a trial lawyer. Hannity took some shots at Edwards and accused him of being largely responsible for the current "medical malpractice crisis" in North Carolina. Probably similar to that one in Illinois where the tort deformers swear doctors are fleeing the state, even though the actual statistics show they are not. But the right wingers are never terribly concerned with the truth. [For a great example of blatant disregard for fact, read Al Franken's book Rush Limbaugh Is a Big, Fat Liar. Franken does a great job, showing how Rush just says things that are flat-out wrong. And the passage about how Rush avoided Viet Nam due to a cyst on his ass is priceless].

But I'm not going to jump into any of that today. That would be way too boring for my first post-vacation post. Why do that when one can talk about Scott Petersen. I thought the guy was gonna walk until our gal Amber took the stand. Then the jury hears how this guy is talking about their future together - when his wife has just been reported missing and he's been assisting with the searches! This Geragos guy may be good, but I don't know if Atticus Finch could neutralize that testimony. And then their tape-recorded discussion about favorite movies - and he says "The Shining"! That movie with Jack Nicholson where he ah...oh, yeah, kills his wife. All the movies in the world, and he comes up with that one. My prediction? Quick quilty verdict.

Another prediction - prosecution drops case against Kobe Bryant. If there is any truth to the suggestions she had additional sexual activity immediately after the alleged incident, and prior to a rape exam, she isn't looking like much of a victim anymore. And the decision to file a civil lawsuit is mind-boggling. She had six years to do so under the Colorado statute of limitations. Why the rush? Now the defense can argue she is just out for a payday. Now the civil suit does make reference to other women, which would make things interesting. But certainly none of them have ever claimed rape. If however there was some sort of financial payoff, well, then things get stickier for Bryant. But I doubt those women, if they exist, would be very credible. I think she loses the civil case as well.