Chicago Accident Law Blog

People injured in accidents in Illinois frequently hire an attorney recommended by a friend or who advertises on TV. The lawyer retained will sometimes have little or no jury trial experience-this question should always be asked before retaining the attorney. Oftentimes the client becomes unhappy with the lawyer-lack of communication, attorney lacks the required experience, lawyer referring case out to another lawyer, and many more. Whatever the reason you are entitled to consult with another attorney for a second opinion. I have successfully represented injured victims and their families in personal injury and wrongful death lawsuits in Illinois state courts and federal courts throughout the United States for over 30 years.

On the occasions that I have been contacted for a second opinion the most common questions posed are: Is it possible to change lawyers?-the answer is YES, What will it cost to change lawyers?-the answer is often NOTHING, and Will it hurt my ability to collect full compensation?-the answer normally is NO. Remember that if you suffered injuries as a result of the fault of another you will only get one opportunity to obtain full and fair compensation and unless you have a mutual relationship of trust and respect with your lawyer it is unlikely that your goals will be achieved. It is a fundamental right of every client to discharge his/her attorney and hire another attorney and this decision must be respected by the discharged attorney.

All cases present unique factual and legal issues and we offer free consultation to discuss your case. I take pride in guaranteeing that I will be present with you at all times during the lawsuit from initial consultation, depositions, pretrial conferences, the jury trial, and any appeals that may follow. You will not be referred to another lawyer or firm nor will a young associate handle your case. I remain with my clients all the way through the litigation process. This is important because I have numerous significant verdicts for my clients in personal injury and wrongful death actions including many multi million dollar verdicts. The insurance companies and their lawyers know this-and this significantly increases your opportunity to receive full compensation. Should you so choose feel free to contact Edmund Scanlan toll free at 877-494-1309 for a free telephone or office consultation.

I

Purchasing prescription drugs over the internet without a valid prescription is shockingly simple. An internet connection, a credit card and basic Google skills are all you need to have prescription drugs delivered to your front door.

The National Association of Boards of Pharmacy (NABP) issued a rare "public health alert" on July 28, 2011. Based on a recent study the NABP found that 96 percent of 8,000 rogue websites analyzed continue to operate out of compliance with U.S. pharmacy laws. In their alert the NABP warned: "The fake online pharmacy crisis has reached an epidemic level, they prey on prescription drug abusers, and the most vulnerable members of society..." Most of these sites will sell prescription drugs without a valid prescription. The National Center on Addiction and Substance Abuse (CAPA) at Colombia University in 2006 found that 9 out of 10 websites selling prescription drugs do not require a prescription.

According to research conducted by the Partnership for a Drugfree.org found that 1 in 6 Americans purchase prescription drugs via the internet without a valid prescription. They also found that from 2000 to 2007 states with the fastest growth of Internet access also had the largest jump in hospital admissions for treatment of prescription drug abuse. The Journal of Health Affairs in May 2011 suggested that the growth of high speed internet access has fueled prescription drug abuse.

The sale of prescription drugs over the internet is extremely lucrative (see my blog of Jan. 18, 2007) and is fueled by the unholy trio of website operators (frequently overseas), the pharmacists, and online prescribing physicians. The physicians who issue prescriptions based on online questionnaires without ever seeing the patient are the most reprehensible. The Ryan Haight Online Pharmacy Consumer Protection Act makes it a felony to prescribe controlled substances over the internet without a valid prescription. However, even the sale of non controlled prescriptions drugs without a valid prescription -patient having a physical examination by a physician- is also a felony (see my blog of December 15, 2011). Late last year Senators Feinstein and Sessions introduced the Online Pharmacy Safety Act of 2011 which makes it a felony to prescribe non controlled prescription drugs without a valid prescription.

If you or a family member have been injured or died as a result of a prescription drug obtained over the internet, you can and should fight back. Medical malpractice and product liability lawsuits against internet pharmacies, pharmacists, and physicians who prescribe without a valid physician-patient relationship are an effective way to secure not only compensation for your losses but also to put a halt to this growing public health threat. Should you wish to discuss your situation further, feel free to contact Edmund Scanlan toll free at 877-494-1309.

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.

The business of prescribing and shipping prescription medications over the internet has been used by physicians and pharmacists to ship medication out of state based solely on an online questionnaire. This can be and frequently is a violation of federal law, and if it is intentional it is a felony.

Many attorneys do not wish to get involved in cases where patients accidentally or intentionally overdose on these medications. There are several reasons for this reluctance. First, they frequently involve drug addicts whose personal physicians would never prescribe these medications. Second, the patient, physician, and pharmacist generally all live in different states and there are significant issues as to which states' laws apply. These case can be and I have been bringing them in the federal courts with success.

These physicians, pharmacists and pharmacies are commonly committing felonies, namely the crime of misbranding, in violation of 21 U.S.C. 353(b), 21 U.S.C. 331(a) and (k). Pursuant to 21 U.S.C. 333(a)2 it is a felony if it is done with intent to defraud or mislead. Most of the websites state that the physicians and pharmacies are licensed in your local area. Few are licensed where the prescriptions are shipped.

A good analysis of misbranding can be found in U.S. v. Smith, 573 F.3d 639, 651 (8th Cir. 2009), where the Court of Appeals held a prescriptions is misbranded if it is not accompanied by some sort of physical examination of the patient. None of these websites offer or even contemplate the patient seeing a physician. They merely require an online questionnaire to be filled out, and. most importantly a credit card that clears. Prescriptions are frequently shipped that day or the next by Fed Ex.

Patients and their families are reluctant to come forward because the victim is commonly an addict. The physicians and pharmacists know this and rely on this hesitancy-but victims and families should step up and sue these professionals for the drug dealers that they are. After all, criminal prosecutions are instituted everyday against drug dealers selling drugs to addicts, why should these unethical and criminal professionals not be brought to justice and to have to answer financially for their criminal conduct. If you or a family member have received prescription drugs over the internet, and an overdose has occurred, feel free to contact Edmund Scanlan toll free at 877-494-1309 to discuss what actions may be taken. If nothing else you may be assured that they will not be repeating this conduct.

Illinois personal injury lawyers representing clients who are injured slipping on snow or ice will now find that the likelihood of obtaining compensation for the client is remote. In Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 2010 WL 2780319, (2010), the Illinois Supreme Court held: We conclude that the natural accumulation rule applies in
in this case and that the CTA had no duty to remove the
natural accumulation of ice and snow from its platform,
nor any duty to warn of the existence of such natural
natural accumulation.
Over a vigorous dissent by two justices the Supreme Court majority ruled that the natural accumulation rule trumps any duties owed by the CTA as a common carrier to its passengers.

The decision is a little confusing because the court discusses at length whether the CTA has a duty under the traditional duty analysis, namely (1) reasonable foreseeability of the injury; (2) likelihood of the injury; (3) magnitude of the burden of guarding against the injury; and (4) consequences of placing that burden on the defendant. This is the traditional test to determine whether the plaintiff and defendant stood in such a relationship to one another that the law imposes on the defendant an obligation of reasonable conduct for the benefit of the plaintiff. The Appellate Court in reversing a jury verdict for the CTA passenger held that to require the CTA to inspect all its platforms at every station would be impractical. The Appellate Court stated: "The transit system would be brought to a standstill if passengers were not allowed to alight from their trains until a CTA train operator and/or other employee ran around the platform, taking measurements to determine which portion of the platform currently had the least amount of snow or ice or the most sand spread....The magnitude and consequences of imposing such a duty on the CTA would be overwhelmingly detrimental to the efficient performance of the transit system, and so we decline to impose it here."Krywin v. Chicago Transit Authority, 391 Ill. App. 3d 663, 670, 909 N.E. 2d 887, 893 (2009).

The Supreme Court's opinion could reasonably be interpreted as affirming the judgment of the Appellate Court which merely ruled that under the traditional duty analysis that imposing such a burden on the CTA would be "overwhelmingly detrimental to the efficient performance of the transit system." Under this analysis a valid argument could be made that the language of the Illinois Supreme Court cited above was mere dicta, and unneccesary to affirm the Appellate Court's judgment that the CTA had no duty under the circumstances presented. Tough argument, but in light of the inherent conflicts with other Illinois Supreme Court opinions pointed out in the cogent reasoning of the dissent, it is an avenue that may be available in the appropriate case.

Illinois car accident attorneys should be aware of two recent opinions which expand the rights of injured parties to recover in uninsured motorist and underinsured motorist claims: (1) Uninsured Motorist claims - Nicholson v. State Farm Ins. Co., 2010 WL 1208887 (Ill. App. Ct. 2nd Dist.) released March 23, 2010.
(2) Undersinsured Motorist claims - Schultz v. Illinois Farmers Ins. Co., 2010 WL 966206 ( Ill. Sup. Ct.) released March 18, 2010.

In Nicholson, the issue was whether an Illinois insurer has to offer uninsured motorist coverage in an amount equal to liability coverage that an insured has elected to increase or whether an earlier rejection of higher limits exempts the insurer from this statutory requirement. Essentially in Nicholson an insured elected to increase his liability coverage and the insurered failed to get a written rejection of equal limits for uninsured motorist coverage as is required by 215 ILCS 5/143a-2(1). This section establishes the general rule that no automobile liability insurance policy "shall be renewed or delivered or issued in this State" unless UM coverage equivalent to the liability coverage is included, "unless specifically rejected by the insured."

The Nicholson court stated: "(t)he language, with its statement that the rule applies to policies that are renewed and its references to the insured, clearly expresses a legislative intent to include current policyholders, not just first-time applicants, within the statute's ambit." State Farm argued that 215 ILCS5/143a-2(2) sets out an exception to the rule requiring insurers to offer UM coverage equal to liability coverage and that the exception applies here because it states that equal coverage need not be provided in any "renewal, reinstatement, reissuance, substitute, amended, replacement or supplementary policy." The Appellate Court conceded that the language contained in subparagraphs(1) and (2) "is somewhat ambiguous."

The Nicholson court conclude that: " We believe that a change in the level of coverage, with its attendant change in the premium cost, is a material change that results in a new policy rather than a mere continuation of the old policy....in light of these material changes, the defendant was required to once again offer...equal UM coverage and to obtain a rejection of that coverage before the Janotas their new policy." The bottom line is that auto insurers in Illinois must offer and obtain a rejection of higher UM benefits when increasing an insureds liability coverage. Good news for victims seeking compensation for their injuries.

Continue reading "Illinois Uninsured and Underinsured Motorist Claims" »

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 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 room 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 critical to remember that just because a treating physician or emergency room physician does not diagnose a traumatic brain injury because of no documented losss of consciousness, 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, 2010, 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 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 sexual abuse victims and their attorneys were severely disappointed with the September 24, 2009, Illinois Supreme Court decision in Doe v. Diocese of Dallas, 234 Ill. 2d 393, 917 N.E. 2d 475. 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.

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.

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.

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

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

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.

As an Illinois attorney representing victims of sexual abuse I was very encouraged by the verdict returned yesterdy in St. Clair County awarding a former altar by $5 million against the Belleville Archdiocese. This is one of the most significant verdicts in Illinois involving childhood sexual abuse, and it included $2.6 million in punitive damages and $2.4 million in compensatory damages. The jury found that the diocese conspired to hush sex abuse allegations and allowed the priest free rein in the diocese even after church officials knew he couldn't control his sexual urges toward young boys and girls.

Verdicts like this encourges other victims to come forward and clearly forces entities that are responsible for the care of our children to see that those in their employment are properly and promptly disciplined so as to prevent future acts of childhoood sexual abuse. One of the jurors who was interviewed after the verdict stated that the actions of the diocese were "appalling" and added "they kept placing Father Kownacki in the parishes." A former diocesan official at the Belleville Archdioces testified that prior allegations concerning Father Kownacki were hushed up and that the victims were treated as "dirty laundry." According to the evidence at trial it took more than 20 years for Kownacki to be removed from active ministry.

Since the abuse took place in the 1960's the victim has had a difficult time defeating the statutue of limitations defenses that have been use for years to have these complaints dismissed. Recently, the Applellate Court for the Fifth District stated: "(w)e conclude that section 13-202.2(e) evinces a clear legislative intent that the 2003 amendment apply to all cases filed on or after its effective date, including those in which the allegations of abuse relate to events that preceded the amendment." Doe v. Diocese of Dallas, 379 Ill. App. 3d 782, 792, 885 N.E. 2d 376, 384 (2008). This decision should allow victims to step forward and hold those accountable for sexual abuse that took place many years ago that were previously dismissed based on the statute of limitations. This verdict demonstates that it can and will be done!

An Illinois Uninsured Motorist policy has been interpretted by the Appellate Court as providing coverage to a child living with his mother and her fiancee under the fiancee's insurance policy in an opinion released July 25, 2008. Clayton v. Millers First Insurance Co., 2008 WL 2926874 (5-07-0061). The minor plaintiff was injured in a one car accident where the driver was uninsured and sought uninsured motorist benefits under his mother's fiancee's insurance policy. The insurance company denied coverage and a declaratory judgment action followed where the trial court granted the insurer's motion for summary judgment holding that the child did not qualify as a "family member" under the fiancee's policy. An appeal followed.

In the appeal the pertinent question was whether the minor plaintiff qualifies as a "family member" under the fiancee's policy. The policy defined "family member" as follows: "....a person related to you by blood, marriage, or adoption who is a resident of your household. This includes a ward or foster child." The plaintiff contended that the definition was ambiguous and that the term "ward" has several meanings.

The Clayton court discussed whether the term "ward" necessarily required court adjudication. The mother's fiancee was never appointed as a guardian, the minor merly lived with him along with his mother. Citing Parks v. Kownacki, 305 Ill. App. 3d 449, 711 N.E. 2d 1208 (1999), rev'd on other ground, 193 Ill. 2d 164, 737 N.E. 2d 287 (2000), the Appellate Court held: "that the term ward could be used to describe a person despite no prior adjudication of that status." Clayton, supra. The Appellate Court reversed the trial court's granting of a summary judgment and held as a matter of law that the minor was entitled to uninsurance motorist benefits under his mother's fiancee's insurance policy. Read those policies carefully there may be more there than you think!

Illinois children who are sexually or physically abused on school buses operated by school districts are now afforded the same legal protections that apply to passengers on common carriers. In Green v. Carlinville School District, 381 Ill. App. 3d 207, 887 N.E. 2d 451 (2008), the trial court granted the school district's motion for summary judgment holding that the school district was not operating as a common carrier while transporting children on it school buses, and therefore did not owe a heightened duty of care to children sexually abused by its driver. In reversing the trial court, the Appellate Court Fourth District relied upon the Illinois Supreme Court's 1882 decision in Chicago and Eastern Railroad v. Flexman, 103 Ill. 546, where the Supreme Court stated: "..the contract which existed between appellant as a common carrier and appellee as a passenger, was a guaranty on behalf of the carrier that appellee should be protected against personal injury from the agents or servants of appellant in charge of the train. It alone had the power of removal, and justice demands that it should be held responsible for their wrongful acts toward passengers while in charge of the train." The Green court in interpretting the Flexman decision stated: "Our supreme court has long held that if an employee of a common carrier intentionally injures a passenger, the common carrier is liable for the passenger's injuries, even if the employee's actions were not in his actual or apparent scope of authority." 381 Ill. App. 3d 207, 887 N.E. 2d 451, 456 (2008).

The decision in Green is very significant because it directly holds: ".. that school districts that operate school buses owe their students the highest degree of care to the same extent common carriers owe their passengers the highest degree of care." 887 N.E. 2d at 456. Therefore, if a school bus driver intentionally assaults a child on the school bus physically or sexually, the school district is liable even though clearly outside the scope of employment. This decison requires school districts to conduct criminal background checks on its employees prior to hiring them as is required by 105 ILCS 5/34-18.5 and to vigilant in supervising its employees that it places in charge of children. Protection of children is an interest that deserves protection!

Illinois attorneys handling Underinsured Motorist Claims should be aware that there are setoffs that the insurance companies are claiming that need to be challenged. In a typical situation, plaintiff sustains serious injuries caused by the negligence of another driver. Plaintiff settles her claim for the policy limits of $100,000 from the negligent driver's insurance company. Plaintiff makes a claim against her won insurance company for additional benefits under the underinsured motorist coverage of her own policy. Her insurance policy has limits of $300,000 for underinsurance motorist coverage. The plaintiff's insurance company will routinely seek a credit for the full $100,000 paid by the neglligent driver's insurance company, therby leaving only an additional $200,000 available to compensate the seriosly injured plaintiff.

The common fund doctrine allows a party that creates a fund from which others benefit to seek reimbursement from those other parties. Scholtens v. Schneider, 173 Ill. 2d 375, 671 N.E. 2d 657 (1996). The common fund doctrine most often appears in situations where an insurer obtains a recovery for medical expenses they paid through the plaintiff's attorney's efforts in securing the fund. However, the common fund doctrine is not limited to insurance subrogation cases. Chapman v. Kitzman, 193 Ill. 2d 560. 739 N.E. 2d 1263 (2000). The general requirements for applying the common fund doctrine are: (1) the fund for which fees are sought was created as a result of legal services performed by the plaintiff's attorney, (2) the claimant of the fund did not participate in its creation, and (3) the claimant will benefit from the fund. Taylor v. State Universities Retiremement System, 203 Ill. App. 3d 513, 560 N.E. 2d 893 (1990).

In a very interesting partial concurrence and disssent Justice Chapman addresses the intersection of the common fund doctrine and underinsured motorist benefits and concludes that: "the common-fund doctrine is applicable." James v. Western States Ins. Co., 335 Ill. App. 3d 1109, 1127, 738 N.E. 2d 37, 51(2001). Using the example above with the $100,000 settlement with negligent driver's insurance company, the underinsured motorist policy of $300,000 would receive a credit of $66,666 ($100,000 minus $33,333 in fees or $66,666), instead of the full $100,000 credit. Using this approach achieves a $33,000 additional benefit to the client.

Young v. Mory, 294 Ill. App. 3d 839, 690 N.E. 2d 1040 (1998), provides persuasive authority for this approach. In Young, the court held that the State Employees Retirement System could not claim a full offset of worker's compensation benefits paid to injured worker, but only that portion of benefits that the injured party actually received after the deduction of attorneys fees. This issue should be pressed in the trial court, and if unsuccessful, an appeal should be taken. I am hopeful that the Appellatte Court may follow the reasoning of Justice Chapman and the holding of Young and apply the common fund doctrine to undersinsured motorist claims. Why should injured parties pay attorneys fees to provide a benefit to insurance companies without requiring the companies to pay some of the freight-this is what the common fund doctrine is all about!

Illinois Wrongful Death Act now allows jurors to award damages for "grief, sorrow, and mental suffering." The law in Illinois since 1867 has been that in wrongful death actions, there is "no recovery for bereavement" and "nothing can be given as solatium." Chicago & A.R. Co. v. Shannon, 43 Ill. 338, 1867 WL 5039 (1867).

Jury instructions in wrongful death actions arising before the effective date of this amendment, May 31, 2007, have and will include Illinois Pattern Jury Instruction (Civil) IPI 31.07. This instructions states: In determining "pecuniary loss" you may not consider the following:
(1) The pain and suffering of the decedent;
(2) The grief or sorrow of the widow and next of kin, or
(3) The poverty or wealth of the widow and next of kin.

Needless to say this was and is a powerful argument that defendants, their insurers and attorneys make to jurors at the trial of a wrongful death action to limit the amount of damages awarded. Sometimes the only significant loss widows and next of kin sustain is the "grief, sorrow, and mental suffering" associated with the wrongfyl death of a family member.

Continue reading "Illinois Wrongful Death Act Amended" »

Illinois sexual abuse victims often confront confusing statute of limitations issues when bringing claims for chilhood sexual abuse. The Illinois Supreme Court held that under the common law discovery rule governing when a statute of limitations commences, there is no requirement that plaintiff must know the full extent of her injuries before the applicable statute of limitations begins to run. Clay v. Kuhl, 189 Ill. 2d 603, 727 N.E. 2d 217 (2000).

Plaintiff in Clay was born in 1964, sexually abused on hundreds of ocassions in 1972 and 1973, and filed suit against Kuhl and his religious order in 1996. Plaintiff alleged that it was not until 1994 that she first became aware that Kuhl's misconduct caused her injuries.

The defendants moved to dismiss complaint pursuant to 735 ILCS 5/2-619(a)(5), arguing that the time for filing suit expired on March 31, 1984, when she turned 20 years old. Illinois law allows minors to bring suit within two years of reaching majority; 18 years old being majority in Illinois, 735 ILCS 5/13-211. The trial court granted defendants' motion to dismiss. Plaintiff appealed and Illinois Appellate Court reversed the dismissal, Clay v. Kuhl, 301 Ill. App. 3d 694, 704 N.E. 2d 875. The Illinois Supreme Court granted leave to appeal and reversed the Appellate Court and affirmed the trial court's dismissal.

In arguments before the Illinois Supreme Court plaintiff contended that application of the discovery rule is necessary because plaintiff did not realize the full extent of her injuries until well after her 20th birthday. The discovery rule states that a party's cause of action accrues when the party knows or reasonably should know of an injury and that the injury was wrongfully caused. Knox College v. Celotex Corp., 88 Ill. 2d 407, 430 N.E. 2d 976 (1981).

Continue reading "Illinois Sexual Abuse Victims Abused Again" »

Illinois hospitals were granted immunity from disclosing confidential patient records by the Illinois Supreme Court. Bagent.v. Blessing Care, d/b/a Illini Hospital, 224 Ill. 2d 154, 862 N.E. 2d 985 (Jan. 19, 2007). An Illinois woman's common law right of privacy claim against a hospital that her confidential medical records were divulged by an employee of the hospital was unanimously rejected by the high court last week. Defendant Mary Young was a phlebotomist employed by Illini Hospital. She had received confidentiality training from her employer regarding HIPAA, 110 Stat. 1936. Plaintiff Suzanne Bagent had a blood test with results being sent to Illini Hospital showing that she was pregnant.

Shortly thereafter defendant Mary Young visited a local tavern and shared the blood test results with plaintiff's sister. Plaintiff complained to the hospital and thereafter filed a lawsuit against the phlebotomist and Illini Hospital under a doctrine of respondeat superior. The trial court dismissed Illini Hospital finding that disclosure of plaintiff's medical records was "not made in the course of or within the scope of Young's employment."
Plaintiff appealed the dismissal to the Appellate Court which reversed holding that a jury should decide whether Young was acting within the scope of employment. Young v. Blessing Care, d/b/a Illini Hospital, 363 Ill. App. 3d 916, 844 N.E. 2d 469 (2006). The Illinois Supreme Court reversed the Appellate Court in Docket No. 102430.

The Illinois Supreme Court discussed the Restatement (Second) of Agency Sec. 228 which provides that: (1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master..
The Supreme Court held that all three criteria must be met to conclude that an employee was acting within the scope of employment. Plaintiff relied upon Section 229 of the Second Restatement which elaborates the first criteria of Section 228, including the admonition to consider such factors as whether the act is outside the enterprise of the employer and whether the employer has reason to expect that such an act will be done. Clearly disclosure of confidential medical information was not outside the enterprise of a hospital and the hospital had reason to be concerned that such an act would occur, why else provide training. The Court ignored these factors in its analysis.

In its unanimous opinion the Illinois Sup. Ct. strangely stated:
".the ultimate question is whether or not the loss resulting from the employer's acts should
justly be considered as one of the normal risks to be borne by the employer."
I agree with this statement of the Court but disagree with the analysis they use to immunize a hospital from liability for the release of confidential medical information of its patient by an employee of the hospital.
"

Continue reading "Illinois Hospital Immunity-Confidential Patient Records." »

An Illinois internet prescription malpractice case that I tried last year now has resulted in the indictment of the very doctors sued. The doctors were charged in the civil suit with: (1) prescribing Xanax and Ultram to a patient they had never seen or examined; (2) prescribing excessive dosages and; (3) practicing medicine in the state of Illinois without a license.

As reported in last months' post on internet prescription malpractice, the plaintiff, a 30 year old husband and father ordered Xanax and Ultram over the internet. The plaintiff had previously successfully completed a drug rehabilitation program through Hazelton, and had been clean and sober for a long time. However, looking at his e-mails one day in May 2004 he succumbed and ordered the anti-anxiety drug Xanax and the pain killer Ultram via an internet questionnaire. As he testified before a jury in U.S. District Court in Chicago, he took these drugs partially for back pain and partially for recreation.

After consuming these drugs the next thing he recalls is waking up in a hospital in suburban Chicago three weeks later. The drugs repressed his breathing causing a hypoxic event that landed him in a coma. Neither Dr. Klinman. a Pennsylvania internist, whose name was on the bottle of Xanax nor Dr. Ahlawat, a New Jersey internist, whose name was on the bottle of Ultram, had ever seen plaintiff or spoken with him. All the information they had was contained on the online questionnaire that he filled out.

Continue reading "Internet Prescription Malpractice-Part II" »

An Illinois internet prescription malpractice case that I prosecuted beginning in 2004 opened my eyes to the widespread abuse of prescription drugs the internet facilitates. An unholy alliance has developed between physicians and the internet pharmacies that push drugs via spam e-mails and pay for click advertising. This is the first of what will become a continuing focus on the practice of physicians prescribing frequently abused drugs based solely on an on line questionnaire. This article is not meant to criticize or impede a patient with a lawful prescription from having it filled over the internet.

In April 2004, a 30 yr. old plastic salesman along with his newly pregnant wife had just moved into their new home in suburban Chicago. He was an active man who played golf and basketball regularly. He loved reading Dostoevsky and Hemmingway. His sales job required 70-hour work weeks and he drove over 60,000 miles per year servicing his customers. Stress was very high and his back was bothering him, but his family life and work prospects were promising.

Continue reading "Internet Prescription Malpractice-Part 1" »

In a Chicago wrongful death action that asserted claims for underinsured motorist benefits, the Illinois Supreme Court interpreted whether the "per person" limits of liability or the "per occurrence" limits of liability applied to family members derivative claims. The Illinois Wrongful Death Act, 740 ILCS 180/2 states: "...every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person..." Illinois courts have defined "next of kin" as those blood relatives of the decedent who are in existence at the time of the decedent's death who would take the decedent's property if the decedent had died intestate. Provena v. St. Therese Medical Center, 334 Ill. App. 3d 581, 778 N.E. 2d 298 (2002).

Continue reading "Illinois Wrongful Death Coverage Limited by Supreme Court" »

A Chicago product liability suit that I tried recently resulted in $1.8 million verdict to a 40 year old Chicago man whose leg was crushed on an assembly line. Many interesting legal issues arose including who should be placed on the jury verdict form regarding apportioning fault among defendants, third party defendants, and plaintiff (see previous post regarding this issue). In 2002 plaintiff was working on an assembly line that produced laminated boards for use as countertops and cabinets. At the end of the laminating line there was a scissors lift table which received the completed boards and which was operated by a foot switch.

While guiding boards onto the scissors lift plaintiff accidentally stepped on the foot switch causing the table to lower while his foot was underneath. The boards and table weighed over 1,500 lbs. and crushed his right leg. Plaintiff sustained fracture of tibial plateau, bimalleolar fracture of ankle requiring six surgeries and ultimately fusion of his knee. Plaintiff, a former drug user, complicated his medical condition by injecting Oxycontin into his right arm in an unsuccessful attempt to relieve pain, thus leading to osteomyelitis in his right leg.

Continue reading "Chicago Man's Crushed Leg Brings $1.8 Million in Product Liability Action " »

An Illinois wrongful death verdict arising out of a construction accident where a scaffold collapsed was reversed by the appellate court in Chicago. The Court did rule that the defendants had waived any right to challenge the award of $14,230,000. The issue as framed by the Appellate Court:

Is a defendant who settles with the plaintiff prior to trial still a "defendant sued by the plaintiff" within the meaning of section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117)? If we answer this question in the affirmative, then all defendants sued by the plaintiff, including those who settled prior to trial, may be included on the jury verdict form so that the fact finder can assign each defendant their degree of fault, if any. If we answer this question in the negative, then only those defendants who remain when the case is submitted to the fact finder may be included on the verdict form.

Continue reading "Chicago Appellate Court Puts Settling Defendants on Verdict Form" »

One Chicago medical malpractice case that did not involve either doctors or nurses was resolved too late to benefit the victim. In 1999 a Chicago area woman went to her gynecologist for her annual pap smear. Because she had been previously diagnosed with a sexually transmitted disease she was at a higher risk of developing cervical cancer, and therefore her doctor recommended annual pap smears. The pap smear was sent to a large national lab to be read. The results were communicated to the gynecologist as a normal pap smear. Approximately ten months later the patient contacted her gynecologist because she was having unusual discharges and she came in for an appointment. Upon physical examination the physician made a visual diagnosis of cervical cancer which was later confirmed by a biopsy.

Continue reading "Chicago Pap Smear Medical Malpractice" »

A libel action in suburban Chicago led to a $7 million award for Illinois Chief Justice Robert R. Thomas. A Kane County jury returned the verdict against the Kane County Chronicle and a former columnist on November 14, 2006. Justice Thomas, a former Chicago Bear and Notre Dame kicker, alleged that the columnist and the Chronicle defamed him by printing that he traded his vote in an attorney disciplinary case in exchange for a political favor to enable a candidate he favored to be elevated to the bench. Attorneys representing the defendants indicated that they will likely appeal, and that one of the issues they will raise will be that the jury should have been told that the columnist was a opinion columnist not a news reporter. The trial judge, Cook County Circuit Judge Donald J. O'Brien Jr., ruled

that there is no separate First Amendment privilege for statements of opinion and that a false assertion of fact can be libelous even though couched in terms of an opinion.

Continue reading "Illinois Chief Justice's Libel Case Leads to $7 Million Jury Award " »