Recently I settled an Illinois traumatic brain injury lawsuit immediately before trial for $800,000. This case was complicated by the fact that the 19 year old male passenger in a car struck by a truck pulling off a stop sign actually signed a release settling his claim with the claims adjustor for $3,250 a few weeks after the accident. About nine months later the young man’s behavior changed radically and he was ultimately admitted to a mental health center with a diagnosis of major depression, and he has and will remain in an inpatient facility for the rest of his life. Suit was filed shortly after his family suspected that he may have suffered a brain injury in the accident, but that the brain injury did not manifest itself until several months following the accident. Defendants filed motion to dismiss on the basis of the release, which was initially granted, but case was transferred to another judge who ruled that a factual issue remained whether there was a mutual mistake of fact.

The main issue in this case was whether there was a mutual mistake of fact at the time the release was signed. I deposed the claims adjustor who testified that she did not contemplate a brain injury at the time of settlement and that her analysis only took into account that the plaintiff had twelve stitches to his head in the accident. The plaintiff also testified that he only felt he had a cut to his head in the accident at the time he signed the release. Four years after the accident a brain injury specialist diagnosed him as having a traumatic brain injury. He testified convincingly that plaintiff was not suffering from depression or schizophrenia, but rather had sustained a traumatic brain injury in the auto accident.

A few months before trial was scheduled to begin I filed a motion for partial summary judgment alleging that there was a mutual mistake of fact that voided the release. In Scherer v. Ravenswood Hospital, 70 Ill. App. 3d 939, 947, 388 N.E. 2d 1268, 1274 (1979) the court stated: “Where…the evidence reveals an injury involving such pervasive damage as permanent mental retardation, resulting from cerebral dysfunction; the settlement is in an amount significantly disparate to the seriousness of the injury; and the injury is an unanticipated, extraordinary complication, then a mutual mistake of fact has been clearly and convincingly proven which, if allowed to stand, will result in an unconscionable hardship to plaintiff.”

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.

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.

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:

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.

Illinois product liability lawyers need to be aware of the August 2010 recall by DePuy Orthopedics of its defective metal-on-metal hip implant systems. The two hip implant systems recalled are the: (1) ASR XL Acetabular System, and (2) ASR Hip Replacement System, which first became available in 2003.

The most common problem with the ASR hip implant systems is that its components come loose. One of the design defects of these hip implant systems is that the cup-“acetabular prosthesis”-is too shallow causing it to: (1) dislocate, and (2) to shave cobalt and chromium off the metal-on-metal system and into the bloodstream when the joint’s ball strikes against the cup’s edge-“edge loading”.

According to figures released by DePuy, 93,000 patients were implanted with these hip implants. There are current estimates that indicate that as high as 90% of patients with these hip implant systems will require revision surgery.

Physicians who prescribe drugs over the internet without seeing the patient and the pharmacies that fill and ship the drugs have sought to evade criminal and civil liability by prescribing non controlled substances. The DEA enforces the Federal Controlled Substances Act (21 U.S.C. 80 et seq.) which explicitly prohibits the sale of controlled substances prescribed by physicians who have never seen the patient.

Non controlled prescription drugs are governed by the Food, Drug and Cosmetics Act (21 U.S.C. 301 et seq.) which does not explicitly address online prescriptions and consultations. Criminal and civil prosecutions are now being pursued against these online pharmacies and physicians who sell, ship, and prescribe non controlled prescription drugs to patients based solely on an online questionnaire and “without some sort of examination.” U.S. v. Smith, 573 F. 3d 639, 651 (8th Cir. 2009).

The legal theory behind these prosecutions is that online consultations with a physician is not the basis for a legitimate prescription, and therefore constitutes the crime of misbranding under the Food, Drug and Cosmetics Act (21 U.S.C. 353(b)(1), which is prohibited under 21 U.S.C. 331(a) and (k). The introduction or delivery into interstate commerce of a drug that is misbranded is punishable under 21 U.S.C. 333(a)(1), and as a felony under 21 U.S.C. 331(a)(2) if it is done with intent to defraud or mislead. The web pages of most online pharmacies that ship prescriptions without some sort of examination do both. Frequently neither the physician nor the pharmacy are licensed to prescibe or fill prescriptions in the state into which they are shipped.
In U.S. v. Smith, the Eighth Circuit stated: “A drug is misbranded unless dispensed upon “a prescription of a practictioner licensed by law to administer such drug.” 573 F. 3d 639, 650 (2009). The Smith court described a “prescription drug as misbranded if it dispensed other than through a valid prescription.” 573 F. 3d at 651. The Court defined “valid prescription” as “…a bona fide order-i.e. directions for the preparation and administration of a…drug for a real patient who actually needs it after some sort of examination…” 573 F. 3d at 651.
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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

Illinois sexual abuse victims and their attorneys have experienced progress and setbacks in attempts to receive just compensation for their injuries-many of which are catastrophic and permanent.

735 ILCS 5/8-2801 protects victims of sexual abuse having to defend against evidence of other sexual behavior. This is extremely important because victims do not want to have their whole history of sexual activity put under a public spotlight in order to pursue a legitimate claim of sexual abuse. Effective January 1, 2010.

735 ILCS 5/13-202.2 increased the time victims of childhood sexual abuse have to file suit to 20 years after victim reaches 18 or 20 years from the date the victim discovers both (1) that the act of childhood sexual abuse occurred and (2) that the injury was caused by the sexual abuse. This good news for victims since they frequently don’t recognize until well after they reach 18 that their psychological and/or emotional injuries were caused as a result of the sexual abuse they suffered as children. Effective January 1, 2011

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 claimsNicholson v. State Farm Ins. Co., 2010 WL 1208887 (Ill. App. Ct. 2nd Dist.) released March 23, 2010.
(2) Undersinsured Motorist claimsSchultz 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.
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