Chicago Accident Law Blog

A tragic accident on Interstate 290 in Addison, Illinois occurred early Saturday morning February, 11, 2012, when a 32 year old intoxicated man, leaving a work-related event, drove his car into a stopped squad car that had been waiting for a tow truck as a result of a previous collision.. A 42 year old man in the squad car was killed in the crash and the state trooper was injured.

The families of the victims of these tragedies are all too often left with only the amount of money that can be recovered under the intoxicated motorist's insurance policy. This can be as low as $20,000 per occurrence in Illinois and it rarely exceeds $300,000. Illinois wrongful death lawyers need to be aggressive in exploring all potential areas of recovery for the family in these tragic circumstances.

Illinois accident attorneys seeking to recover damages in addition to the insurance coverage on the intoxicated motorists vehicle can look to see (1) if Dram Shop Act (235 ILCS 5/6-21) liability is present-intoxicated motorist leaving tavern where he became intoxicated causes crash, or (2) whether "in-concert" liability will attach.

The law in Illinois is settled that the exclusive remedy for holding sellers of alcohol (taverns) liable for the actions of intoxicated drivers is under the Dram Shop Act. Cunningham v. Brown, 22 Ill. 2d 23, 174 N.E. 2d 153 (1961). While a defendant is generally under no duty to prevent the criminal acts of a third party absent a "special relationship." Hills v. Bridgeview Little League, 195 Ill. 2d 210, 228, 745 N.E. 2d 166 (2000), Illinois courts have adopted "in-concert" liability.

Section 876 of the Restatement (Second) of Torts imposes liability on those who act in concert with another tortfeasor giving substantial assistance or encouragement to another's tortious conduct. The Illinois Supreme Court has adopted Section 876 in Simmons v. Homatas, 236 Ill. 2d 459, 925 N.E. 2d 1089 (2010). The court in Simmons stated: "Although one does not have a duty to prevent the criminal acts of a third party, one does have a duty to refrain from assisting and encouraging such tortious conduct." 236 Ill. 2d at 476, 925 N.E. 2d at 1100.

In-concert liability may be a narrow exception to the rule that no duty exists to prevent the criminal acts of a third person absent a "special relationship," nonetheless all of avenues of recovery should be explored in these tragic accidents. All cases of serious personal injuries or wrongful death should always be investigated by an experienced jury trial lawyer who can best assess whether all avenues of recovery are being explored. Should you so choose you can contact Edmund Scanlan toll free at 877-494-1309 for a free consultation to discuss your options.

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Illinois attorneys representing clients who have had recalled DePuy hip prosthesis implanted, should be aware that these lawsuits can be kept in the state courts. Care must be taken in drafting the complaint and attention should be paid to federal civil procedural deadlines regarding remanding a case back to the state court system.

First, the DePuy ASR XL Hip Acetabular System and the ASR Hip Replacement System that were recalled by DePuy Orthopedics in August 2010, were distributed by Premier Orthopedic Sales, Inc., an Illinois corporation (See blog of April 5, 2011). Premier needs to be joined as a defendant along with DePuy Orthopedics, Inc., an Indiana corporation, pursuant to 735 ILCS 5/2-621.
Second, in drafting the complaint against Premier, it is essential that you allege facts that preclude removal pursuant to 735 ILCS5/2-621(c)(1), (2), or (3), specifically:
(1) Premier exercised control over design or manufacture; or
(2) Premiere had knowledge of the defect; or
(3) Premier created the defect.

On February 10, 2012, I filed suit in the circuit court of Cook County, on behalf of a lady whose DePuy hip implant system not only had the component parts come loose, but also caused dangerously high levels of chromium and cobalt in her blood. By alleging that the distributor, Premier Orthopedic Sales, Inc., had knowledge of the defects I plan on strenously resisting all efforts of DePuy Orthopedics to remove this action to federal court.

Many of the nationwide lawsuits that have been filed against DePuy Orthopedics, Inc. in state courts have been removed to federal court by DePuy based on 28 U.S.C. 1441, which essentially allows defendants to remove lawsuits filed in state courts to federal court, if each defendant resides in a different state than the plaintiff, no defendant is a citizen of the state in which action brought, and the amount in controversy exceeds $75,000.

Should DePuy Orthopedics, Inc. attempt to remove an action filed in an Illinois state court to federal court in a lawsuit that names Premier Orthopedic Sales, Inc. as a defendant, this can be remanded back to state court if the case was plead properly. Pursuant to 28 U.S.C. 1447(c), plaintiff has thirty days after removal to file a motion to remand the suit back to state court.

In Kopitke v. DePuy Orthopaedics, Inc. and Premier Orthopaedic Sales, Inc. (2011 WL 856865), Judge Darrrah of U.S. Dist. Ct. for the N.D. of Illinois, remanded a lawsuit DePuy had removed to federal court. The court ruled that the distributor, Premier, was not fraudulently joined to destroy diversity jurisdiction and that the allegations complied with 745 ILCS5/2-621(c)(2). The Seventh Circuit has defined "fraudulent joinder" as "a claim against an in-state defendant that simply has no chance of success." Poulos v. Nass Foods, 959 F. 2d 69, 73 (1992). Allegations alone are insufficient to keep a case in state court since a defendant seeking removal is entitled to present facts showing that "the individuals joined in the action cannot be liable on any theory." Ritchey v. Upjohn, 139 F. 3d 1313, 1318 (9th Cir. 1998).

Lawsuits against DePuy for their recalled hip implant systems filed in federal court or removed to federal court, are all transferred to the U.S. Dist. Ct. for the Northern District of Ohio to a multi district litigation panel along with thousands of other lawsuits. Keeping your clients' cases in the Illinois state courts to be handled individually is far preferable to having your client share her or his day in court with thousands of other claimants. If a case can be filed in the Illinois state courts, it should be. In selecting an attorney to represent you in DePuy litigation, remember to select an attorney not only with experience in product liability cases but also an attorney with extensive jury trial experience. Should you so choose, feel free to call Edmund Scanlan toll free 877-494-1309 for a free consultation to discuss your options.