Chicago Accident Law Blog

Victim of Illinois railroad accident receives a $33 million from jury on March 25, 2010. A 19 year old railroad conductor was severely injured on April 8, 2007, when he fell alongside a moving train in the Rock Island train yard while attempting to pull a uncoupling lever on a train. The plaintiff sustained bilateral leg amputations as well as other catastrophic injuries.

The Iowa Interstate Railroad, and its engineer were charged with violating numerous safety rules while switching cars, particularly the federal radio communication rule governing train operations that requires an engineer, when backing a train in response to a radio command from a conductor, to stop in half the distance of what the command was, unless additional commands received. Jurors are generally receptive to violations of federal statutes or regulations as persuasive evidence of negligence, they certainly did in this case. The railroad initially published a memo blaming the injury on the injured conductor, but obviously the Rock Island County jury felt differently. An appeal is sure to be filed.

Illinois personal injury lawyers should be aware that on March 4, 2010, the Appellate Court in Holloway v. Dunway, 2010 WL 763918, held that medical providers stautory liens for services rendered (770 ILCS 23/1 et seq.) to an injured person are subject to reduction under common fund doctrine for attorneys fees incurred by plaintiff in obtaining recovery. The Court held and stated:

* if the professional or provider seeks to collect the debt owed to it out of the common fund created by the plaintiffs and their attorneys, the common fund doctrine applies and it is responsible for its proportionate share of attorney fees and costs- 770 ILCS 23/45.
*the common fund doctrine permits a party who creates, preserves, or increases the value of a fund in which others have an ownership interest to be reimbursed from that fund in which others have an ownership interest to be reimbursed from that fund for litigation expenses incurred, including counsel fees. Scholtens v. Schneider, 173 Ill. 2d 375, 385 (1996).
*it is now well established that a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney fee from the fund as a whole.
*To sustain a claim under the common fund doctrine, the attorney must show that (1) the fund was created as a result of legal services performed by the attorney, (2) the claimant did not participate in the creation of the fund, and (3) the claimant benefited or will benefit from the fund that was created. Bishop v. Bugard, 198 Ill. 2d 495 (2002).
*it is irrelevant that the party who benefits from a lawyer's services has a right to compensation, be it undifferentiated right of reimbursement or subrogation.
*We believe that by its use of this language, the supreme court intended to, and did, shift the focus away from the relationship between the parties and toward what it called the "real question" of whether the claimant benefited from the lawsuit without contributing to its costs, thereby becoming unjustly enriched. Bishop, 198 Ill. 2d 495, 510. (2002).
*While the hospital's right to payment may not be dependent on the creation of the fund, its statutory lien is in fact dependent on the creation of the fund, for the lien specifically and expressly attaches only to the common fund. 770 ILCS 23/20.

The effect of this decision is that now an injured plaintiff can have the health care providers statutory lien amount (770 ILCS 23/20) reduced by an additional amount, customarily the standard attorney fees of one third. This is only fair and equitable.
This will also have the effect of health care providers submitting their bills to Medicare, Medicaid or an insurance company for payment where they never receive the full amount of their bills. Good news for injured Illinois citizens.

Illinois product liability attorneys should be aware that Avandia, a diabetes drug, is now linked to a higher risk of heart attack and heart failure according to a report released by the Senate Finance Committee on Feb. 20, 2010. The report authored by the committee chaired by Senators Baucus and Grassley concluded:

"The totality of evidence suggests that GSK (GlaxoSmithKline) was aware of the possible cardiac risks associated with Avandia years before such evidence became public....Based on this knowledge, GSK had a duty to sufficiently warn patients and the FDA of its concerns in a timely manner. Instead, GSK executives intimidated independent physicians, focused on strategies to minimize findings that Avandia may increase cardiovascular risk, and sought ways to downplay findings that the rival drug ACTOS (pioglitazone) might reduce cardiovascular risk."

According to recently released reports by the FDA if every diabetic taking Avandia were instead given a similar drug named Actos, about 500 heart attacks and 300 heart failures would be averted every month because Avandia can hurt the heart. Dr. David Graham and Dr. Kate Gelperin of the FDA stated in a report: "Rosiglitazone (Avandia) should be removed from the market."

Senator Max Baucus chairman of the Finance Committee said: "Americans have a right to know there are serious health risks associated with Avandia and GlaxoSmithKline had a responsibility to tell them. Patients trust drug companies with their health and lives and GlaxoSmithKline abused that trust." The first study to disclose the Avandia heart risk was released by the New England Journal of Medicine on May 21, 2007. The Senate report states that the FDA estimated in July 2007, that Avandia has been linked to 83,000 heart attacks since it was put on the market.

Currently most litigation is in federal court since GlaxoSmithKline is a British corporation and the cases have been consolidated for purposes of discovery in the U. S. District Court for the Eastern District of Pennsylvnia. Victims are still entitled to file the litigation in the federal court where they took the medication, but discovery will take place under the auspices of the federal judge in the federal court for the Eastern District of Pennsylvania. Now that evidence exists that GSK failed to warn of known risks of Avandis for years the prospect for success in Avandia litigation has increeased substantially. If you, a family member, or friend has had a heart attack while taking Avandia you should promptly consult with an attorney well versed in handling product liability litigation. Should you so choose feel free to contact Edmund Scanlan at 877-494-1309.