Chicago Accident Law Blog

Illinois brain injury lawyers should be aware that traumatic brain injury can occur in the absence of loss of consciousness. There is overwhelming ignorance in the medical community that there is even the possibility of permanent brain injury in patients who do not suffer loss of consciousness following a trauma to the head.

Serious researchers have now concluded that traumatic brain injury can occur without a documented loss of consciousness. See Neuropsychological Assessment, 3rd, by Murial Lezak; Sports and Concussion Guidelines promulgated by the American Academy of Neurology in conjunction with the Brain Injury Association; the treatise Prognosis of Neurological Prognosis of Neurological Disorders.

I have represented numerous clients whose emergency roon physicians failed to diagnose traumatic brain injury merely because the was no documented loss of consciouness. If the client has continuing cognitive difficulties it is wise to refer the patient to a neurologist, neurosurgeon, or rehabilitation physician who have experience in diagnosing and treating patients with traumatic brain injuries. Frequently, the attorney must retain an expert to perform a neuropsychological assessment of the patient to confirm the diagnosis of traumatic brain injury. It is crtical to remeber that just because a treating physician or emergency roonm physician does not diagnose a traumatic brain injury because of no documented losss of consciousneee, does not mean that the patient does not indeed have a traumatic brain injury. The best evidence of serious brain injury comes from family and friends who can document personality changes or cognitive impairment that developed following a traumatic brain injury. Promptly retaining an attorney with experience representing victims of traumatic brain injuries is critical in securing a favorable outcome for clients some of whom will suffer of life with cognitive impairment.

Truck accident attorneys in Illinois and around the nation should be aware that the federal government formally barred truckers and bus drivers from sending text messages while operating a commercial motor vehicle, effective January 27, 2010. The Federal Motor Carrier Safety Administration (FMCSA) did not create a new regulation or a new law, but rather provided regulatory guidance. The FMCSA recently completed its "Driver Distraction in Commercial Vehicle Operations" study and released the final report on October 1, 2009. In this study the FMCSA found that: The most risky behavior identified by the research was "text message on cell phone," with an odds ratio of 23.2. This means that the odds of being involved in a safety-critical event is 23.2 times greater for drivers who are texting while driving than for those who do not.

FMCSA has now provided regulatory guidance regarding 49 CFR 390.17 in an answer to the following question: Do the Federal Motor Carrier Regulations prohibit "texting" while driving a commercial motor vehicle in interstate commerce? FMCSA answered the question as follows: Yes......Research has shown that during 6-second intervals immediately preceding safety-critical events (e.g., crashes, near crashes, lane departure), texting drivers took their eyes off the forward roadway an average of 4.6 seconds. Therefore the use of electronic devices for texting by CMV operators while driving on public roads in interstate commerce decreases safety and is prohibited by 49 CFR 390.17.

Truck accident lawyers should now issue discovery and subpoenas in lawsuits to secure the operators cell phone records to determine if the driver was texting at or near the time of a collision. If appropriate the complaint should be amended to include a violation of 49 CFR 390.17. Illinois and about 19 other states also ban texting while driving. On January 1, 2020, Illinois' law became effective and provides: A person may not operate a motor vehicle on a roadway while using an electronic communication device to compose, send, or read an electronic message, 625 ILCS 5/12-610.2. These state laws and 49 CFR 390.17 should be used in pursuing truck drivers and trucking companies for injuries in truck related crashes where driver attentiveness is the issue.

The traditional discovery in litigation of toll receipts, log books, fuel receipts, and GPS tracking devices should also be employed as hours of service violations resulting in fatigued drivers are common and the frequent cause of catastrophic injuries and fatalities in trucking accidents. Truck accident lawsuits are complex and prompt investigation by an experienced truck accident attorney is critical in ensuring a favorable outcome in catastrophic truck crashes. Speed of instituting legal action is also critical because federal regulations only require trucking companies to maintain their log books for six months, and they are frequently a critical piece of evidence in holding the the trucking companies and their drivers responsible for serious injuries and deaths. Since truck accident cases frequently wind up in federal court because of diversity jurisdiction, this new interpretation of 49 CFR 390.17 will allow federal courts the authority to fashion a just and fair result for the victims of truckling accidents.

Illinois truck accident attorneys should be aware of the recent decision by the Illinois Supreme Court regarding whether the Illinois Vehicle Code's "omnibus coverage" applies to commercial truckers. In Zurich American Ins. Co. v. Key Cartage, 2009 WL 3470846 (2009), the Court held that "omnibus coverage" mandated by Section 5/7-317(b)(2) of the Illinois Vehicle Code does not apply to commercial truckers regulated under the Illinois Commercial Transportation Law, 625 ILCS 5/18c-1101 et seq. "Omnibus coverage" is defined as a motor vehicle liability policy that "shall insure the person named therein and any other person using or responsible for the use of such motor vehicle or vehicles with the express or implied permission of the insured" 625 ILCS 5/7-317(b)(2).

The issue in Zurich was whether Zurich American Ins. Co. which insured a lessor trucking company, Rose Cartage, or West Bend Ins. Co. which insured the lessee, Key Cartage and driver of the truck, were responsible for providing coverage when one of Key Cartage drivers was involved in an Illinois accident which resulted in a death. Zurich's insurance policy had a reciprocal coverage provision that stated that they would only cover Rose Cartage employees and that they would not provide coverage to anyone using the truck, even with permission, unless that person (Key Cartage) also insured Rose Cartage. West Bend Ins. Co. maintained that the reciprocal coverage provision violated 625 ILCS 5/7-317(b)(2). The Appellate Court in Zurich held that the reciprocal coverage provision violated Section 5/7-317(b)(2) and was void as against public policy.

The Illinois Supreme Court reversed and held that: "...we conclude that the definition of motor vehicle liability insurance policies set forth in section 7-317, including the omnibus requirement in section 7-317(b)(2), does not apply to commercial truckers regulated under the Commercial Transportation Law." The Court pointed out that section 18c-4902 of the Commercial Transportation Law provides that the Illinois Commerce Commission "shall prescribe the amounts of Insurance" necessary for insurance policies issued to motor carriers of property in the state of Illinois.

In properly evaluating the value of wrongful death actions or serious injuries sustained during a trucking accident, it is critical to know at the earliest possible time the amounts of coverage available so that recommendations can be made as to the value of the case. As a practical matter it is generally wise to name as defendants in trucking lawsuits not only the driver and his employer, but also the owner of the tractor, trailer, and any leasing agents.

Illinois sexual abuse victims and their attorneys were severely disappointed with the September 24, 2009, Illinois Supreme Court decision in Doe v. Diocese of Dallas, 2009 WL 3063427. The court framed the issue as: "..whether section 13-202.2 of the Code of Civil Procedure (735 ILCS 5/13-202.2), may be applied to permit an action for personal injury based on childhood sexual abuse to proceed where that action would otherwise have been time-barred under the law as it existed when the amendment took effect."

The defendant priest's lawyer contended that because plaintiff's cause of action was already time-barred under the prior law years before the the 2003 amendments took effect, allowing the lawsuit to go forward now would deprive him of a vested right in violation of the due process protections of the Illinois Constitution (Ill. Const. 1970, Art. I Sec. 12). The Illinois Supreme Court agreed stating: "once a statute of limitations has expired, the defendant has a vested right to invoke the bar of the limitations period as a defense to a cause of action. That right cannot be taken away by the legislature without offending the due process protections of our state's constitution."

This decision has caused me to discontinue representation of several meritorious claims of my clients. The court did not dwell on the thoughtful analysis of two appellate court opinions that discussed the retroactivity analysis between the "vested rights" and "legislative intent" approach to determining whether a claim is time-barred. I have written two earlier blogs on this topic. This is a sad day for victims of sexual abuse in Illinois.

I understand the Illinois Supreme Court's reason for reaching the decision they did. Namely, application of the 2003 amendment to a time-barred claim to breathe new life into it violates the due process clause of our state's constitution (Ill. Const. Art. I, Sec. 12). I honestly believe they signed the opinion holding their nose, and they said as much; "Defendants in this case have elected to invoke the defense, and they alone are responsisible for that decision and its impact on plaintiff's ability to seek relief through the courts." I regretfully respect the high court's decision and feel sorry for the victim. The Catholic Church's tactic in bringing about the pain to this victim, many other victims, and even our Supreme Court is deeply disturbing!

Illinois car and truck accident attorneys in investigating the causes of vehicular crashes should always consider the possibility that one of the drivers was texting, emailing or on a cell phone at the time of the colllision. In 2008, the National Highway Traffic Administration (NHTSA) published a study indicating that driving daylight hours 11% -or 1.8 million drivers-were on the cell phone.

The National Safety Council has called for a total ban on cellphone use while driving because their research showed more than 100 million people are engaged in this activity everyday and that cellphone use has caused 636,000 crashes, 330,000 injuries, 12,000 serious injuries, and 2,600 deaths each year.

Texting while driving has been found by a recent study by Virginia Tech Transportation Institute to result in a 23 times greater risk of a crash. An Illinois law passed earlier this month will ban: texting, emailing, or websurfing while driving. This law will become effective January 1, 2010. This is a step in the right direction! Cell phone use while driving should similarly be banned.

In representing crash victims we should always investigate cell phone use, texting, or emailing as potential causes. Subpoena to the cell phone provider can provide dates, times, and numbers of phones called, texted or emailed. After suit is filed discovery request should be tailored to specifically inquire as to all cell phone or email providers so that the appropriate subpoenas can be served. Comprehensive subpoenas, requests for production, and depositions can shed a great deal of light on an otherwise difficult crash investigation and can result in securing a fair compensation to the crash victims we represent.

Illinois motorcycle accident attorneys should always be creative when analyzing the potential areas of recovery for their clients. According to the U.S. Dept. of Transportation (DOT) there were 7.1 million motorcycles on the road in the U.S. in 2007. Sales of all two wheelers in the U.S. was 1,087,000 in 2008.

Motorcycles are by their very nature far less crashworthy than closed vehicles and crashes frequently result in catastrophic injuries or death. They are also less visible to other vehicles and pedestrians and less stable than four wheel vehicles. Motorcyclists and their passengers are more vulnerable to the hazards of weather and road conditions than drivers in closed vehicles. According to the DOT 5,154 people died in motorcycle crashes in 2007 and motorcycles are 35 times more likely than passenger car occupants to die in crashes per vehicle mile driven in 2006, and 8 times more likely to be injured according to the DOT'S National Highway Traffic Safety Administration (NHTSA).

In a recent case I successfully represented the estate of an 18 year old male in a wrongful death lawsuit alleging negligent entrustment against the decedent's friend who let him ride his "supersport" motorcycle also known as a "pocket rocket" despite the decedent's lack of experience and licensure to operate a motorcycle. Determining whether there may be a potential claim for negligent entrustment require a careful reading of the Illinois Supreme Court's opinion in Zedella v. Gibson, 165 Ill. 2d 181, 186, 650 N.E. 2d 1000, 1003 (1995).

In Zedella, the Illinois Supreme Court adopted Section 308 of the Restatement of Torts (Second) which provides:

It is negligence to permit a third person to use a thing or engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such manner as to create an unreasonable risk of harm to others.

The testimony indicated that these recent high school graduates had never operated a motorcycle before, much less a motorcycle that was described in testimony as the fastest production motorcycle available.

Section 390 of the Restatement of Torts (Second) was adopted in Illinois by the court in Small v. St. Francis Hospital, 220 Ill. App. 3d 537, 542, 581 N.E. 2d 154, 158 (1991), and it states:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

These "pocket rockets" should only be used by or lent to motorcyclists with a high degree of training and who possess all necessary licenses.

Continue reading "Illinois Motorcycle Accident Attorneys Need Creativity" »

As an Illinois lawyer representing victims of childhood sexual abuse I was pleased with the recent ruling in Doe v. Hinsdale Township High School District, 388 Ill. App. 3d 995, 905 N.E. 2d 343 (2009). In Doe, a female high school student brought action for personal injuries based upon childhood sexual abuse against school, principal, and superintendent. The trial judge in Du Page county dismissed student's claims against school, principal and superintendent based on the Illinois Tort Immunity Act, 745 ILCS 10/8-101, ruling that a suit against the school or any of its employees must be brought within the one year statute of limitations for suits against governmental entities or their employees. The issue on appeal was whether the one year statute of limitations for governmental bodies and their employees governed this action or whether the five year statute of limitations for Childhood Sexual Abuse, 735 ILCS 5/13-202.2 applied.

The Appellate Court in Doe, stated:

In resolving which statute apples, we note that the cardinal rule of statutory construction is to ascertain and give effect to the legislature's intent.

905 N.E. 2d at 347. The reviewing court concluded that:

In this case, section 13-202.2(b) of the Code (735 ILCS 5/13-202.2(b) begins with the language "notwithstanding any other provision of law." In using this language, the legislature clearly intended section 13-202.2 of the Code to control over other provisions of law, such as section 8-101 of the Tort Immunity Act, which would otherwise bar the plaintiff's action.

905 N.E. 2d at 348.

This ruling is a clear victory for victim's of childhood sexual abuse in that it does not limit to one year the time frame a victim can sue a governmental employee or governmental entity regarding any duties they may have to children under their care and supervision for sexual abuse by others they employ or control. This decision while respecting the statutory language, also furthers the legislative intent in allowing children adequate time to assess the damage done to them by the pedophile. From a practical standpoint it is frequently only the employer of the pedophile who can pay damages to the sexually abused victim. Further, it provides a clear incentive for schools or other organizations that deal with children on a regular basis to have a clear set of guidelines for what is and is not appropriate relationships between children and their teachers, coaches or others who interact with them on a regular basis. The bottom line is that this decision will insure that school districts, park districts, and others dealing with children will have to be vigilant regarding the screening and monitoring of the individuals who came into contact with the children that have been entrusted to their care. This is a good thing!

Illinois product liability attorneys should be aware that yesterday the Yamaha Motor Corp. recalled about 120,000 utility terrain vehicles (UTVs), namely the Rhino models 450, 660 and 700 models. The four wheel side by side Rhino manufactured by Yamaha has become one of the most popular UTVs sold in the U.S. The design flaws that prompted the recall include a top heavy design resulting in a high center of gravity and a track width that is too narrow.

The United States Consumer Product Safety Commission (CPSC), has announced a free repair program to address these issues. Of the more than 50 incidents investigated by the CPSC more than two thirds involved rollovers, many of which involve turns at relatively low speeds on level terrain.

Utility Terrain Vehicles have fallen within a regulatory crevice. These vehicles were introduced to the market and have been sold to consumers without having to meet government safety and performance standards. It is critical that federal and/or state state safety agencies act to protect consumers from the growing number of fatalities and severe injuries

Consumers who own any of the models involved should return the vehicle to their Yamaha dealer for free repairs. Repairs include installation of a spacer on the rear wheels as well as removal of the rear anti-sway bar to help reduce the the chance of rollover and to improve vehicle handling.

Consumers or anyone who have been injured or died in a rollover should immediately consult with a product liability attorney to ensure preservation of the vehicle and to begin appropriate engineering analysis. Should you wish you can call our office toll free 877-494-1309 for a prompt review of your case without charge or obligation

An Illinois truck accident involving violations of Federal Motor Carrier Safety Regulations where I represented the estates of a 77 year old man and his 73 year old wife settled last week for $950,000. On March 7, 2007, at 3:45 AM the 77 year old driver hit the side of the semi tractor trailer that was backing onto a rural highway In Will County. Both the driver and his wife were killed instantly!

The central issue in the case was why the 77 year old driver failed to detect, identify, and respond prior to slamming into the side of the trailer as it was backing across the rural highway. Attorneys for the trucking company and its driver retained the services of an ophthalmologist, human factors expert, and an certified accident reconstruction specialist. The 77 year old driver had corrective eye surgery a few months before this fatal accident.

Essentially defendants' experts opined that the 77 year old driver: 1) should not have been driving at night as his nighttime vision was limited; 2) since trailer was equipped with retroreflective tape and side marker lights a reasonably alert driver should have been able to detect, identify, and respond to the trailer by slowing to avoid a collision.

Expert witnesses I retained on behalf of the family of the victims included a transportation safety consultant (trucking practices expert) and a certified accident reconstruction specialist. Essentially plaintiffs' experts opined: 1) truck driver violated the Federal Motor Carrier Safety Regulations, sec. 392.2, which holds that a violation of the Illinois Vehicle Code is also a violation of the FMCSR. Failure to yield right of way while backing is also a violation of FMCSR; 2) truck driver should have known that his maneuver of backing his truck across a highway violated the reasonable expectation of an average motorist; 3) this was a preventable accident- use of flairs or a spotter would have prevented this tragedy. Violations of FMCSR are essential in holding trucking companies and their drivers responsible for the carnage they cause on our highways and every effort must be undertaken to identify and prove these violations. Drivers logs, GPS readings, fuel receipts, and toll receipts are some of the discovery that must be sought and obtained to secure favorable results for the victims.

Violations of the Illinois Vehicle Code is also a violation of FMCSR and was a key in securing a favorable result in this case. The decedents were survived by three adult children who rarely saw the decedents and who lived in Alaska, Tennessee, and New York. The case was settled before Judge Ronald Guzman in the United States District Court for the Northern District of Illinois.

Illinois sexual abuse victims through their lawyers won another victory in the Appellate Court regarding application of the statute of limitaions. In M.K. v. L.C. et al, 2009 WL 103616, released January 9-09, the Third District Appellate Court chose to follow the holding of an opinion released last year, Doe v. Diocese of Dallas, 379 Ill. App. 3d 782, 885 N.E. 2d 376 (2008), where the Fifth District held that the 2003 amendment to the Childhood Sexual Abuse Statute of Limitations, 735 ILCS 5/13-202.2(b), was to be applied retroactively. Essentially this means that even if the statute of repose or limitations had expired before the 2003 amendment, the amendment controls, and the action may be mantained.

While this case and the Doe case will be reviewed by the Illinois Supreme Court, I am personally hopeful that these two thoughtful opinions by our Appellate Court will provide the framework and legal analysis that will lead the Justices to conclude that retroactive application of 735 ILCS 5/13-202.2(b), is the law of the State of Illinois. In an earlier blog, March 21-08, I conducted a detailed analysis of the "legislative Intent" and "vested rights" appraoch to applying statutes of repose and limitations retroactively. The bottom line is that our legislature has passed a statute that allows childhood sexual abuse victims longer times to file their suits because the damage from the sexual abuse does not always manifest itself within two years of reaching majority, this legislative determination should not be overruled by the judicial branch without a compelling right being violated. I see none, and so do two Appellate Courts in Illinois

Illinois product liability lawyers are encouraged by the verdict returned November 17, 2008, in the Circuit Court of Cook County awarding $16.6 million in damages to the estate of a 38 year old Cicero woman who died of a fatal dose of the powerful narcotic fentanyl. The suit alleged that the defendants, New Jersy based Janssen Pharmaceutica Inc. and California based ALZA Corp. knew about problems with the Duragesic patch that allowed it to leak fentanyl in doses large enough to kill pateints. Both defendants are subsidiaries of Johnson & Johnson.

The defendants maintained that the decendent death was caused by "polypharmacy"- a mix of potentially incompatible medications. The jury disagreed. The verdict is the fourth trial loss since 2006. FDA had issued prior warnings about improper use of fentanyl patrches.

Post trial motions and a possible appeal are down the road, but multiple juries have now concluded that some of these Duragesic (fentanyl) patches are unreasonably dangerous. Unfortunately, federal preemption (see blog of Oct. 31, 08) may yet provide a opportunity for defendants to escape liability. Civil jury verdicts are pointing the way for FDA action.

Product liability lawsuit preemption by federal regulation is scheduled for oral argument before the U.S. Supreme Court on November 3, 2008. In 2000 a state court jury in Vermont awarded Diana Levine $6.5 million in a product liability lawsuit against Wyeth Pharmaceuticals. The outcome of Levine's case will have major ramifications for drug makers and consumers. The U.S. Supreme Court is expected to decide whether people can sue under state law or are pre-empted from doing so- for harm caused by a drug approved by the federal Food and Drug Administration.

In 2000 Diana Levine was prescribed an "IV push" of Phenergan to combat nausea brought upon by migraine headaches and pain killers she was taking. Unfortunately the "IV push" of Phenergan punctured an artery, causing her right arm to become gangrenous. After several weeks her right arm was amputated.

Levine sued Wyeth contending that the label of Phenergan should have more clearly warned about the danger of giving the "IV push." Combating an upset stomach with a method that can end up causing limb loss is an "unfathomable benefit-risk ratio" according to Diana Levine.

Wyeth maintains that when a drug like Phenergan has a federally approved label its manufacturer is immune from lawsuits in state court. Levine's position is that federaal regulation should represent the floor, not the ceiling, of a drug company's responsibility.

The Supreme Court of Vermont which affirmed the jury's verdict held that negligence and failure to warn claims on the labelling of an anti-nausea drug, "did not conflict with the FDA's labelling requirements...because Wyeth could have warned against the danger without prior FDA approval and because federal labelling regulations create a floor not a ceiling for state regulation." Levine v.Wyeth, 944 A. 2d 179 (Vt. 2006), cert. granted 128 S. Ct. 1118.

It is ironic that the Bush administration which has successfully pursued an agenda against federal regulatory oversight, will have its judicial appointees leading the way to eliminate pharmaceutical company liability utilizing federal regulations.