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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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).

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.”

Illinois sexual abuse victims and their lawyers are now protected against having to defend against evidence of other sexual behavior or sexual predisposition. Effective January 1, 2010, 735 ILCS 5/8-2801 provides that: “Admissibility of evidence; prior sexual activity or reputation.

(a) Evidence generally inadmissible. The following evidence is not admissible in any civil proceeding except as provided in subsection (b) and (c):

(1) evidence offered to prove that any victim engaged in other sexual behavior; or (2) evidence to prove any victim’s sexual predisposition.

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.

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.

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.