WISCONSIN GOVERNOR HAS CAJONES

Pleased to see that Governor James Doyle, governor of our neighbor Wisconsin, vetoed a bill last week that would have capped the amount of money that medical malpractice victims can win in court for non-economic damages[i.e. "pain and suffering"]. The bill set limits of $450,000 for adults and $550,000 for children. The law had been drafted by Republican lawmakers who were in a snit because an earlier version of a caps bill had been ruled unconstitutional by the Wisconsin Supreme Court. The Supreme Court, in so ruling noted that the earlier bill had no rational basis for the caps. So the Republicans, who apparently can't help themselves, promptly drafted another bill proposing caps with no rational basis. And Governor Doyle had the stones to veto what amounted to nothing more than a retread of the earlier bill, with some modification of the numbers. Of course the Republicans won't go quietly. Assembly speaker John Gard, R-Pestigo vowed to override the veto. Doing so may be difficult however - a veto requires a two-thirds majority vote in both the House and Senate and the Republican party doesn't control two-thirds of either chamber. And, if the override fails, Gard has indicated he will "demand" that the Governor give them a number he thinks the Court will uphold.(?) Maybe Gard should take a deep breath before he puts on his Overrider outfit. The flaw in the bills isn't the numbers. The flaw is that the legislation creates two classes of victims: those who are not as seriously hurt who can obtain fair compensation, and those victims who are more seriously injured and cannot obtain fair compensation. Big thumbs up for Doyle for having the guts to chuck the bill.

NEW JERSEY TWIST IN SPORTS LITIGATION

Juat saw a brief article in ITLA's November newsletter about a recent ruling in New Jersey regarding injuries at ballparks. The New Jersey State Supreme Court recently ruled that a ballpark patron hit by a foul ball while buying a beer can sue the park owner for negligence. As the article explained, the decision altered the long-standing "baseball rule" that essentially decreed that fans assume certain risks when they enter the old ballpark - risks like being clocked by a foul ball or thrown bat. The ruling affects eight minor league baseball stadiums that have opened in New Jersey in the last several years. The article went on to note that some of the owners were likely to erect nettings, screens and other protective barriers. I haven't seen the actual opinion, but I would be shocked if stadium owners in New Jersy have, until now, been allowed to skirt liability by claiming that that some 6 year old going to his first baseball game assumed the risk of being hit by a baseball bat(?). MLB has required netting behind the plate[where most foul balls go]for years in order to protect fans. Shameful to think New Jersey stadium owners were allowed to forego an easy and relatively inexpensive safety precaution this long.

FORD FUEL TANK ISSUES

According to a recent ATLA Law News Digest Article, Ford Motor has acknowledged that fuel tanks in some of its larger sedans pose an increased risk of explosion in rear end collisions. Ford recently offered to provide protective fire shields to owners of the Lincoln Town Car stretch limos but will not offer the fire shields to millions of other drivers who own cars with the same fuel system. Ford has taken the position that the risk of explosion is specific only to the limos. Safety advocates however, have called upon Ford to recall millions of other models that recently had the same fuel styem built in, including the Crown Victoria and Mercury Grand Marquis. Interestingly, Ford has begun to notify owners of the stretch limos that they will provide the protection kits free of charge, but will not pay for installation.

LATE REQUEST TO ADMIT

Saw an recent opinion out of the Second Appellate District the other day regarding the late filing of a response to a Request to Admit. In Robbins v. Allstate the plaintiff sued Allstate for failing to pay for fire damages to his home. Allstate defended the case, saying that the plaintiff had torched the place. Defendant had issued a Request to Admit to the plaintiff two months after his lawyer had withdrawn from the case - the plaintiff was acting as his own attorney. The requests were all directed the to the plaintiff being directly involved in the fire. Plaintiff actually answered the requests within 28 days, but the responses were contradictory. And, he didn't swear to them, as required by Rule 216. The defense moved for summary judgement, arguing that the responses were not proper, and as a result, the Requests were all admitted. On appeal, the plaintiff appealed to the discretion afforded the trial court to deviate from the 28 day response timeframe. The Appellate Court ruled however, that in order for the trial court to exercise its discretion, the plaintiff must show good cause. And the Appellate Court decided that the plaintiff had failed to show good cause for an extension of the deadline. The Court further noted that "...while we sympathize withe the plaintiff's position, the fact that he was acting pro se at the time provided no basis for the trial court to exercise its discretion...". Tough result. Bottom line - answer those Rule 216 Requests to Admit and have them sworn within 28 days.

SHAMEFUL NUMBERS FROM THE CATHOLIC CHURCH

Saw a blurb in the November 14,2005 US News & World Report detailing some of the settlements amounts arising from the abuse of children by pedophile priests. The Archdioces of Hartford, Connecticut recently agreed to a $22 million dollar settlement with 43 people claiming to have been abused. The Boston Archdiocese paid $85 million to 500 claimants in 2003. In January of 2004, the Orange County, California Archdiocese agreed to a $100 million dollar settlement. And this past June, the Covington Archdiocese in Kentucky created a $120 million dollar fund for possible settlements. Small wonder why church attendance is decreasing.

CONTACT SPORTS DOCTRINE

This was a new one for me. I represent a young guy who was badly injured while performing trainer duties for a local minor league hockey club[he didn't work for the club - he worked for the rink where they practiced]. He was in the weight room when he was told to bring some water bottles out to the bench area. He got the bottles and walked directly from the weight room to the bench. What he didn't realize was that some of the hockdey players had set up bottles on the bench and were taking shots at them - sort of like target practice. Just as he entered the bench area, an errant shot hit him in the eye, causing serious harm. I filed suit on his behalf against the player and the team. The team brings a motion to dismiss, arguing that under the "contact sports doctrine" a participant injured in a team sport can only recover against another player for wilful and wanton behavior, not mere negligence. The doctrine is set forth in Osbourne v. Sprowls (Ill. 1981), 84 Ill.2d 390 and Pfister v. Shusta (Ill.1995), 167 Ill.2d 417. I didn't want to be forced to allege wilful and wanton, because I was worried about non-coverage for wilful and/or wanton allegations. Using some of the language from the Pfista case, I argued that the purpose of the doctrine was to protect players aggressively, but fairly participating in a contact sport. The act of shooting a puck at targets on a bench had nothing to do with playing hockey. The judge, after some back and forth, agreed with me and denied their motion, without prejudice to bring it again. I also argued that a trainer is really not a "participant" in a contact sport, but there was no caselaw in Illinois to support that assertion.

NICE TO SEE THE SYSTEM WORK

I was in Probate Court the other day in order to get the Court's approval of a minor's settlement. Illinois law provides that when a minor has a cause of action, and it is settled over a certain amount, an estate has to be opened for the minor and supervised by the Circuit Court until the funds are safely deposited in the bank. In any event, I sat there as the judge looked over a proposed settlement for another child. The child was a cute young girl who had suffered a burn injury to the right eye area in a popular Chicagoland area bedding store. The judge was taken aback by the pictures of the injury[which had healed] and also noticed the small scar near the child's eye. Mom and Dad were in court as was the lawyer for the insurance company - the parents apparently never hired a lawyer. The lawyer for the insurance company was trying to convince the judge that the meager little amount they were tendering to the child was sufficient for her injury. And the judge, bless her heart, was having none of it. She told the lawyer for the insurance company that the amount of money they were offering simply wasn't sufficient in light of the injuries and she refused to approve the settlement. She further told mom and dad that although the insurance company lawyer was honest and ethical, the insurance company, when the smoke clears, didn't have the best interests of their child at heart. In fact, the judge suggested, the only real interest the insurance company had was in paying as little money as possible to resolve the claim. The judge went on to tell the parents they should hire a lawyer to represent the interests of their daughter. If I was that insurance lawyer, I would have been embarrassed to be up there saying the settlement was fair. But the insurance lawyer didn't seem embarassed. Instead she seemed annoyed that she had gotten caught.

THE CASE NOT TAKEN

Met a woman on Friday who it appears, was clearly the victim of medical malpractice. She had some stomach discomfort, and went to the ER. Tests and scan revealed a suspicious mass in her bowel. The accompanying report indicated the mass should be investigated through upper and lower GI testing. The report was sent to her doctor, and he received it. But he never ordered the tests. Some 15 months go by and finally, another doctor orders them. Woman has a cancerous tumor in her bowel, necessitating surgery. Loses significant part of her bowel, and is currently getting chemo. Sounds pretty good right?

I thought so too - until I met her. My guess is she probably had some mental health issues. She couldn't stay focused and kept jumping around to other medical issues. It took a long, long, long time to get her story. It was my opinion I would never be able to successfully control this woman on the stand, and she would be an absolute nightmare on cross. So regrettably, I rejected the case.

Ten years ago I might have taken that case. But not now. And frankly, I think it is unlikely she'll find someone to file for her. So a clearly negligent doctor, who might have considerably shortened a life, gets to skate. Primarily because the potential client isn't from central casting. Some days this business can be depressing.

BACK FROM TRIAL PURGATORY

I've spent the last 6 weeks or so preparing for and ultimately losing a premises liability case. Getting a not guilty on the case was the bad news. The good news? First time in 7 years plus that I really got behind a case and came up empty. So I guess if I have to take it on the chin every seven years or so, I can live with it.

Premises cases are never easy. The current Illinois Instruction is not particularly plaintiff-friendly. Comparative negligence is always an issue and, I've concluded that juries simply don't like "slip and fall" cases very much. But I did learn some things at trial which I will share with the class.

First, if a juror says that her husband was seriously hurt a couple of years ago in an accident, sued, and didn't do well, bounce her. That juror is not your friend. No matter what, her husband was hurt far more seriously - your case pales by comparison.

Second - explain to your client how cross examination works repeatedly. I thought I had explained how the process worked pretty well, but apparently not. My client, a lovely woman, kept looking at me during cross. After a while, the jury was probably wondering if I was sending some sort of secret messages. My client explained later that she thought I could get up DURING defense counsel's, interrupt, and ask rehabilitating questions.

Next, go over every single line in your client's depo and pick at it for inconsistencies. That is precisely what defense counsel did during cross. He simply stood there and poked and prodded over and over. How often had she been there? Where was she looking? What did she see? What did she feel when she touched the step? On and on it went. Much of it was inconsequential, but he did bumble into some testimony that yielded damaging admissions. And in a premises case, you don't have much room for error.

Well, that's enough for now. Reliving an NG just isn't much fun.

DANGER OF PRINCIPLE

Met with a client today to discuss settlement of her claims against various defendants in an injury claim. The defendants want to settle and I recommended we at least explore the possibility. The client however, won't talk settlement. She insists on "getting her day in court" and "the principle of the matter." Her remarks made me remember a case I had years ago that ended up being tried because of the "principles" involved. In that case, my client had suffered serious injuries in a bus accident. Liability was unclear. And to be honest, my client was one of the most unlikeable people I have ever represented. She was ill-tempered, impatient, and argumentative. She swore like a drunken sailor and at least once during trial smelled like she might have added a little pick me up to her coffee before coming to the courthouse. In short, not a particularly likeable client. I had argued with her to consider a generous offer that was on the table(with indications that there was more money). She was steadfast - no settlement. I brought in a female colleague to talk to her thinking that might help. And my colleague had a great approach. She explained that at this point, near trial, the case was no longer about justice or truth. It was about MONEY, pure and simple. She went on to explain that the offer was generous and that we could probably get more. My colleague went on to explain that liability wasn't clear cut and there was some holes in the damages picture. In short, think about settlement. But the client, big suprise, refused. Wanted to try the case because of the principle involved. So the case was tried. And my client's personality came through loud and clear. Her temperment on the stand ranged from irritable to snide. Jury found her immensely dislikeable, just as I had feared. And the verdict of course, was NG. Moral of the story? "Principle" doesn't pay the bills and is a very silly reason to try a case.

HOSPITAL NOT RESPONSIBLE FOR TIRED RESIDENT

The Illinois Appellate Court(First District) was recently faced with a novel issue: whether a hospital may owe a duty to a third party injured by an allegedly sleep-deprived employee. In Brewster v. Rush-Presbyterian St. Luke's Medical Center, (no cite available yet), Heather Brewster, a scholarship athlete at Eastern Illinois University was seriously injured when the car she was driving was rear-ended on a suburban highway by first year medical student in 1997. The medical student, Sook Im Hong had worked 34 of the 36 hours immediately prior to the collision. Hong admitted the crash occurred because she had fallen asleep at the wheel. Evidence was presented that Rush required residents to work excessive hours and knew that the schedules would cause sleep-deprivation amongst residents. Rush argued that the hours it imposed were permissible under Illinois law and consistent with standards in place at the time. The Appellate Court, in upholding a 2003 trial court ruling, held that at present, there is no such duty imposed under Illinois law.

The plaintiff, Heather Brewster, was left physically and cognitively impaired and she was forced to quit her studies. She was ultimately declared incompetent and now lives with her parents. Her attorney indicated an appeal to the Illinois Supreme Court was in likely. Chicago Sun Times, Wednesday, September 21, 2005.

CHAMBER AT IT AGAIN

Those funsters at the United States Chamber of Commerce are at it again. The Chamber recently had their pollsters, Public Opinion Strategies[POS] release results from a "poll" POS conducted for the Chamber as part of its "legal reform" agenda. The poll results? Illinois citizens support restrictions on their rights to sue corporations engaged in misconduct. Yep, turns out that John Q. Citizen, of Anytown, Illinios feels he has far to many rights when it comes to suing corporations that do him wrong. The citizenry of Illinois, according to POS anyway, wants to restrict its ability to sue corporations. Sound fishy? Just a bit. First, the actual "questions" asked were not released by the pollsters. From what I read, that is pretty unusual. And perhaps indicative that he questions were not entirely fair.

Secondly, the poll results are at odds with legitimate data from recent studies. First, a study conducted by Site Selection Magazine ranked Ilinois as the third best business climate in the country in 2004. And a recent St. Louis Post Dispatch/KMOV poll in the St. Louis area found that a strong majority of those polled oppose the recent legislation signed by the Governor putting caps on pain and suffering awards in med mal cases.

The Chamber, over the last several years has become increasingly aligned with the Republican Party and the "tort reform" agenda, spending millions of dollars putting out an anti-lawyer message. I am a member of a local chamber, and attend legislative/legal committee meetings. At one meeting, in a discussion about caps, an insurance executive candidly admitted that the real reason behind caps legislation is underperforming insurance investments, as opposed to runaway verdicts. Unfortuntely for Joe Consumer, the Republican Party[and their Chamber of Commere mouthpiece]whupped the trial lawyers pretty good when it came to getting their message out. Having Bush standing in front of all those white-coated doctors down in Madison County was a stroke of genius. Us trial lawyers, the guys who are supposed to be so good at communicating, got beat at out own game.

GRAYDON CARTER PIECE

Off the beaten path a bit, but the October issue of Vanity Fair(the one with a shirtless Paris Hilton on the cover)has interesting piece by editor Graydon Carter. He devotes his Editor's Letter monthly piece to his recent participation in the libel trial against Vanity Fair brought by none other than Roman Polanski, the director, and also as Carter describes him a "...fugutive from American justice". The piece does a nice job describing some of the differences between American court system and its counterpart in England[the most interesting from a trial lawyer's standpoint, being that in England, the defendant publisher is required to prove that what was printed was correct].

The crux of the case concerned a couple sentences contained within a story on Elaine's, the famous restuarant in New York where all the big shot literary types hang out. The story appeared in the July 2002 issue and was written by an A.E. Hotchner described as a "distinguished journalist". Carter also notes Hotchner was also apparently a friend of Ernest Hemingway[not sure how that's relevant, but hey, this is Vanity Fair magazine]. Apparently the article contained a story told by some other literary type about Polanski's conduct in Elaine's not long after his wife, Sharon Tate was brutally murdered by the Manson gang in 1969. I'm not going to discuss the alleged conduct, because I don't need Polanski suing me. In any event, Polanksi sued the magazine in England. One of the things that perplexed Carter was why a citizen of France can sue an American magazine in England. Can't say I blame him.

Carter goes on to discuss how Polanski won a major victory shortly before the trial was to begin. If he sued in the United States and showed up(which most U.S. courts would expect him to do) he probably likely would have been arrested. [A little background - in 1977 Polanski sodomized a 13 year old girl in California. He was ultimately indicted on six counts and pled guilty to one count of unlawful sexual intercourse with a minor. He spent some 6 weeks in prison undergoing psychiatric tests, but eventually fled the country, worried about jail time. That's why the little weasel can't come back into the country]. If he sued in England and showed up, he ran the risk of being extradited to the States. So his lawyers argued that he should be allowed to litigate the case in England, while he himself stayed in France. The House of Lords agreed(?) so he was allowed to give his testimony, and watch the proceedings via video. Have to admit I'm curious why the House of Lords would be so solicitous of an admitted sex offender.

Anyway, cutting to the chase, Polanski prevailed at trial and was awarded approximately $100,000. Carter closed the article with a quote from the woman Polanski raped, now nearly 40 and a mother of three, presently living in Hawaii. "This libel case makes no sense, " she told a newspaper. "Surely a man like this hasn't got a reputation to tarnish?"

NEW ASSISTANT

Couple of months ago I learned my assistant would be leaving for personal reasons. Although disappointed to lose her, I thought I could get by without an assistant for a bit. Yeah, well, I was wrong about that. Very, very wrong. The last month has been a bit hellish. But hired someone new the other day who I think is going to be great. And I now have some time to get back to blogging...

Saw an interesting blurb in the Chicago Sun Times today about a recent filing against White Hen. A young girl from Winnetka is suing White Hen after she was allegedly raped by an employee. The alleged perpetrator has been charged with criminal sexual assault[and is believed to have fled to Mexico]. The plaintiff will no doubt face motions to dismiss, where White Hen will argue that any sexual misconduct was outside the scope of the employee's duties. There is a long line of cases in Illinois where employers are dismissed out of cases after their employees sexually abuse people that come into their store, or onto the bus etc. The article did indicate that the defendant had apparently approached a number of other young girls in a suggetive manner prior to the attack. The plaintiff will likely argue the previous conduct put White Hen on notice that this guy was creepy and they should have gotten rid of him. Hopefully those facts will allow plaintiff to defeat the inevitable motions and this little girl can get some justice.

BACK FROM VACATION...

Back from vacation in Northern Michigan. Had to post about a television commercial for a law firm I saw while I was up there. The setting is obviously some insurance company. Some guy, obviously supposed to be an adjuster, walks into his supervisor's office. The first thing that drew my attention was the toupee on the adjuster. Worst piece I have ever seen. Looked like the guy had a dozing possum on his head. I don't know if it was a subtle slam at insurance adjusters(hopefully so) or nobody had the decency to yank the guy's rug...In any event, adjuster says something to supervisor about a new claim, bad injuries, lots of bills. Supervisor, with a sneer, says something about throwing a lowball offer at them. Then the following dialogue: "But they have hired Smith Law Firm[not the real name of course]...." The supervisor quickly looks up, and after a dramatic pause says: "This is going to cost us a lot of money." Cheesy? Maybe. But lots of consumers will remember the line about "...lots of money." Bet the firm gets a good bit of business from that commercial.

CHANGES IN ILLINOIS WORKERS'S COMP LAW

On July 20, 2005, the Governor signed HB 2137 which implemented some significant changes into the existing law. These changes include: a) ensuring prompt payment to medical providers who treat injured workers and allowing 1% interest per month after 60 days on unpaid bills; b) a prohibiting medical providers from billing an injured worker for the balance of charges not paid by an insurance company while the claim is pending; c) creating a third Workers' Comp panel to expedite resolution of disputed claims; d) simplifying procedures for the introduction of medical records into evidence in hearings; e) increasing penalties for the unreasonable delay of Workers' Comp benefits from $10 a day to $30 a day and from $2500 per claim to $10,000 per claim. In addition, several important benefit provisions were changed. Two of the most signficant changes include: a) increasing the maximum benefit for a worker killed on the job to the greater of $500,000 or 25 years at the ma rate(was $250,000 or 20 years); and increasing burial benefits to $8000, up from $4200. Thanks to ITLA for their summary of the changes.

COLLATERAL SOURCE RULING

The Illinois Supreme Court issued an important ruling on the collateral source doctrine on Thursday, July 21, 2005. In Arthur v. Catour(Docket 97920, 97946, consolidated), the plaintiff, Joyce Arthur was injured while attempting on auction on property owned by one of the defendants. Plaintiff suffered a broken leg, and indicated in discovery that her specials were $19,314.07. Plaintiff had private health insurance[Blue Cross]through her husband. Blue Cross, through various contractual discounts with the relevant health care providers, only paid $13,577.97 on plaintiff's behalf. Defendants filed a motion for summary judgment seeking to limit plaintiff's claim for medical expenses to the amount paid, as opposed to the amount billed. The trial court granted the motion. The Appellate Court reversed, holding that the plaintiff damages included the entire amount billed, provided those charges were "...reasonable expenses of medical care".

The Supreme Court opinion[which involves a lengthy and fascinating treatment of the collateral source rule]finally gets down to brass tacks in the last paragraph. The Court ruled that "...plaintiff cannot make a prima facie case of reasonableness based on the bill alone, because she cannot truthfully testify that the total amount has been paid. Instead, she must establish the reasonable cost by other means, just as she would if the services had not yet been rendered..."

My reading of the opinion - makes life more complicated for us personal injury trial lawyers. The opinion seems to suggest that if insurance discounted some of the bill, you better have a doctor testifying that the entirety of the bill was fair and reasonable. It appears from this opinion that simply testifying that a bill is paid will not longer guarantee admission of the actual bill.

CAPS NEWS

Noted a couple of items recently on caps that were of interest...

First, Geoffrey Fieger recently tried a case in Michigan that involved terrible injuries to an infant shortly after his birth. The child, born 16 weeks premature, was only 11 weeks old when a doctor in the neonatal unit at Beaumont Hospital in Royal Oak, Michigan set the child on fire while trying to use a cauterizing tool in an oxygen tent. The child, who had some pre-existing medical issues, suffered significant burns, and endured numerous surgeries in the months after the incident. He stayed in the hospital a total of two years, heavily medicated and on a ventilator. He is currently using a wheelchair, dependent on a ventilator and has brain damage. The jury awarded the boy $8.2 million dollars for the pain and suffering he endured. Due to recent legislation in Michigan, the boy's award was reduced to $575,000, less than 10% of what a jury awarded. Whatever money the family receives after fees and costs will likely be gone shortly, in light of the child's on-going medical needs.

Some better news out of Wisconsin. This past week, the Wisconsin Supreme Court struck the statutory cap of $350,000 on medical malpractice awards for non-economic damages(pain and suffering). The Court found the statute to be unconstitutional and violated equal protection guarantees. Hopefully the Illinois Supreme Court will do the same thing when this issue lands on its doorstep.

FOLLOW-UP: RETALIATORY DISCHARGE SETTLEMENT

Discussed in last post how important is is to fully understand your compensatory damages in retaliatory discharge cases before jumping into them. It's also important to understand taxable consequences of a settlement in these cases. First, if any portion of the settlement is to compensate the plaintiff for lost wages, that portion of the settlement is taxable income. The client should be advised before settlement talks get serious that he'll have to duke Uncle Sam the following April for the lost wage portion.

In addition, there is some caselaw that suggests that the employer can withhold FICA from the lost wages portion of the settlement[see James v. Mobile Medics, (4th Dist. 2003), 341 Ill.App.3d 451, 275 Ill.Dec. 230, 792 N.E.2d 461]. In the retaliatory case I just settled, defense counsel wants to do precisely that - withhold the appropriate amounts from the lost wages portion of the settlement. I am suggesting that they simply cut the check for that amount in full and send a 1099 to plaintiff next year. We are still butting heads on it.

Also, in the May, 2002 Illinois Bar Journal, Nile J. Williamson wrote an excellent piece about how to address some of the tax questions that come up when you have settlements that include both taxable and non-taxable amounts. Worth a look.

RETALIATORY DISCHARGE DAMAGES

Have been hotly prosecuting a retaliatory discharge case over the last several months, and was pleased when the case settled on Friday, July 9, 2005 for a healthy amount. When litigating retaliatory cases[i.e where employee fired for filing a Workers Comp claim] it is important that your understand your compensatory damages at the outset. The law provides that the discharged employee is entitled to those wages he would have earned if he had not been terminated. Couple of comments about that - first, have a firm understanding of what your client would have earned if he hadn't been fired. For example, let's assume the client gets hurt at work and files a Workers' Comp claim. Injury is pretty serious - there is no real dispute that your client won't be able to do what he had been doing before the injury. Assume also that he isn't qualified for any other position with employer. Shortly after he files the Comp claim, he gets fired. Your first reaction - "I'll sue them for retaliatory discharge!" Be careful - if your client wasn't physically capable of returning to that job[and no other positions available]you will be hard pressed to convince a trial judge that you should be allowed to submit evidence of those lost wages.

Change the scenario a bit: assume your client could have returned to that job, but employer fires him anyway. Don't let your client sit around at home waiting for that big verdict. Have your client keep a job log showing what potential employers he contacted and spoke with about a job. Juries are going to respond better when they can see that your client is out there making an effort, trying to get a job. That same jury won't embrace a former employee who sits at home watching Springer reruns waiting for his ship to come in.

Empty Chair Issue

An interesting issue popped up in one of my cases today. I represent a nice woman in her late 50's who suffered a serious cervical fracture when she tripped on a defect at a local college and fell down 13 concrete stairs. I filed suit against the college and things were moving along pretty well. Unfortunately my client learned that she had potentially terminal medical condition[unrelated to the fall], so I moved to advance the case for trial. At about the same time, the college filed third party claims against 4 other defendants, seeking to get them to contribute to any verdict or settlement. Those new third party defendants appeared at the hearing and vehemently objected to my request to advance the case, saying it is unfair to them to have to put their case together in 30-60 days. The judge agreed and suggested that perhaps I could sever the cases. He noted however, that if I do so, I would only try the case against the college and the college would be allowed to suggest other parties, not at trial, are responsible[otherwise known as the "empty chair defense"]. Lots of lawyers are adamant about avoiding the "empty chair" at trial - but I am think it wouldn't be much of a factor in my case. The evidence has shown the college was clearly on notice about the defect and simply didn't do anything about it. My inclination is to go forward and try the case against the college alone and let the chips fall where they may.

In addition, it never ceases to amaze me how defense lawyers need months and years to put together a defense in a very straightforward premises liability case.

PREMISES LIABILITY: DUTY TO PREVENT CRIMINAL ACTS

Noticed an interesting Second Appellate District decision the other day in the Chicago Daily Law Bulletin. The case, Haupt v. Sharkey's Pub was filed after the plaintff suffered serious injuries after a fight at Sharkey's Pub. Plaintiff Haupt and the defendant, a Peter Bell, entered the McHenry, Illinois bar at about the same time. Sharkey, the owner of the bar, testified that he had seen the two men interacting and having a good time. Sharkey then retired to his residence above the bar. At some point Bell and Haupt have a disagreement and there was some sort of confrontation in the bar. Sharkey comes down and throws both guys out - - and makes them both exit through the front door...together. Not suprisingly, combat breaks out as soon as the men exit and Bell does serious damage to Haupt. Haupt sues the bar. Sharkey's brings a motion for Summary Judgment, arguing that it had no duty to protect Haupt from the criminal acts of a third party patron. The Trial Court agrees and grants the motion. Haupt appeals. In a very well-written opinion, the Appellate Court reversed the lower court. The Appellate Court acknowledged that typically, a landowner has no duty to prevent the criminal act of a third party, absent some sort of special relationship. The Court went on to find that the facts presented did show a special relationship - that of business owner and invitee. The Court also noted that a landowner does have a duty to protect guests against the criminal acts of third parties if those acts are foreseeable. The Court then correctly found that Sharkey's duties didn't end the moment Haupt's feet touched down outside the bar. The opinion specifically noted that there is "...no bright line rule" that a bar owner's duties end the moment a patron steps outside. Instead, the Court ruled that Haupt was still an invitee because he was in the process of leaving and, as a result, Sharkey had a duty to provide a safe means of entrance and exit. The opinion frankly noted that location of the injury isn't a dispostive factor. In addition, the Court found that the attack was foreseeable for a couple of reasons. First, Bell was a regular visitor at the bar and had apparently been involved in some other incidents. In addition, both Bell and Haupt were ushered out the front door together, even though they had been punching each other just moments before. Not surprisingly, Bell went after Haupt again, the moment they got outside. Most bartenders could have seen that coming. An excellent, well-reasoned opinion.

NOTICE REQUIREMENTS FOR MINOR SETTLEMENT

Had an interesting experience today in Probate Court. There to get Guardian appointed and have settlement approved for minor in a med mal case. Minor's mom has addiction issues, is estranged from child and hasn't seen him in 10 years. Dad, who never married mom, hasn't been around for 15 years. Grandma, bless her heart, adopted the child and has given him a good life. I simply assumed that in light of these circumstances, that mom and dad weren't entitled to notice of the proceeding. WRONG! I learned today that under the Probate Act[yeah, probably should have read that] unless a parent's rights have been officially terminated, that parent is entitled to notice. Thankfully adoptive mom is very organized and keeps good records. She had a copy of the adoption order from 10 years ago which provides that the parents' rights were terminated. The judge agreed to accept that order, which meant tthat I didn't have to go searching for a 15 year old order in some warehouse over in the Juvenile Court Bulding basement. Dodged a bullet there.

OPEN AND OBVIOUS DECISION

The First Appellate Court recently weighed in on the always fascinating "open and obvious" doctrine recently in Sandoval v. City of Chicago. In the decision, the plaintiff was babysitting for a neighbor's son and took him out to the front of her home. At some point the child was no longer visible and plaintiff became concerned and went to look for him. While walking toward her home, her left foot became lodged in a large crater in the sidewalk that had been there for some time. The plaintiff was aware of it, and admitted she had been past it "millions of times". She also admitted nothing obstructed her vision and nothing in the area distracted her. Defendant moved for SJ, arguing that the defect was "open and obvious". The motion was granted and plaintiff appealed.

The Appellate Court decision first noted that a landowner is not required to protect entrants to the land from open and obvious conditions. There are however exceptions to the general rule. The plaintiff claimed the distraction exception was relevant in her case. With the distraction exception, the defendant does owe a duty of care for an open and obvious condition where plaintiff's attention might be diverted, so that he/she would not discover, or would forget the defect. And the Court went on to note that the distraction exception wouldn't fly. The court noted that the plaintiff was familiar with the sidewalk; was consciously walking in the area and was not distracted by any condition in the area. In addition, the Court pointed out the distraction exception truly only applies when the landowner created the distaction which diverted plaintiff's attention from the open and obvious condition. A line of cases have held that where the plaintiff's attention is diverted by his or her own acts, for which defendant has no responsibility, the exception does not apply. The Court concluded that the defendant didn't create the situation - instead, the events unfolded AFTER plaintiff had brought the child outside. The Appellate Court concluded that plaintiff's injury did not occur because of an improper distraction, but her own inattentiveness.

ICICLES OFF GUTTER UNNATURAL ACCUMULATION?

Spoke to a client today wanting to file suit for 2 wrist fractures she suffered after falling on ice in a condo complex. The ice was from melting icicles hanging off a nearby gutter. Under Illinois law, typically the injured party cannot recover for injuries suffered as a result of a natural accumulation of ice and snow. So...question becomes is the ice formed on a driveway as a result of a melting icicle hanging off a nearby gutter a natural accumulation? My kneejerk reaction is no, but additional research will be necessary.

The plaintiff is in her early 70's which would allow me to get a trial preference under the Illinois Code of Civil Procedure 735 IlCS 5/2-1007.1, which is a plus. Unfortunately, Medicare paid a portion of her bills, which typically means a long delay in getting lien resolution in the event there was some sort of recovery. I'll check on the natural accumulation question and report in subsequent posts.

MORE NEWS ON THE MED MAL CAPS ISSUE

The Pioneer Press recently ran an a great editorial urging Blagojevich to veto the recent Illinois Legislation establishing caps on non-economic damages. The article points out that insurance companies raised their malpractice premiums during a period where the number of claims as well as the size of judgments were essentially stable. The editorial went on to note that other facts, like the volatility of financial markets, is the probable explanation for the increases in premiums.

Just wanted to quote some great language from the editorial:

"...Caps on awards strike at a fundamental American right to justice. In our system, people who have been damaged by negligence are entitled to seek a remedy, to be made "whole" by a jury of their peers. Judges can, and often do, reduce damages they believe to be excessive. Legislative intrusion into the tort system will not only reduce awards to the most severely injured, but will make it more difficult for anyone to seek justice." Well said.

Finally, have to point out some Senatorial hypocrisy I read about courtesy of an email message from the National Democratic Senatorial Campaign Committee. Seems Sen. Rick Santorum(R-Penn) was touting some new "legal reform" legislation this past week. The centerpiece of the plan is to limit non-economic damages to $250,000. What Santorum didn't mention is that his wife filed a med mal case not long ago seeking $500,000. According to the email, at trial she was awarded $350,000. Doubt he would have supported this legislation back when his wife was a victim. What a worm.

MEDICAL TRANSPORT NOT A COMMON CARRIER

In Aisha Browne v. SCR, a recent decision out of the First District Appellate Court, the Court concluded that a medical transport company is NOT a common carrier.

The facts showed that SCR is a medical transport company that provides paratransit services to disabled persons. SCR had previously entered into a contract with the Chicago Transit Authority(CTA)to transport disabled persons who were unable to use the mainline services. Shortly thereafter, a driver for SCR sexually assaulted Ms. Browne, who is disabled. Browne filed suit against SCR and alleged it was a "common carrier". Plaintiff did so in order to expand the duty that SCR owed its passengers. If SCR turnd out to be a common carrier, it would owe its passengers a higher duty of care. If SCR was not considered a common carrier, it would only owe passengers ordinary care and wouldn't be responsible for the intentional acts of its employees. SCR filed a motion for summary judgment arguing it was not a common carrier. The trial court agreed and granted SCR's motion and the plaintiff appealed.

On appeal the Apellate Court explained that a common carrier is one who agrees to carry the general public so long as there is room and no legal excuse for refusal. A private carrier on the other hand, tranports people by special agreement. A private carrier need not pick up everyone who wants a ride. Unfortunately for the plaintiff, SCR did not serve all of the general public but only those people who met certain eligibility guidelines. In addition, SCR, under certain circumstances could turn riders down for a variety of reasons. SCR, by all appearances was a private carrier. Plaintiff, to his credit, also tried to make SCR a common carrier by claiming they stepped into the shoes of the CTA, which typically IS a common carrier. Court didn't buy the argument however, and affirmed the lower court.

This case has direct impact on a case I am currently litigating against a local company that also provides transport to chronically ill patients. My client was injured on a fall on the bus. I have alleged the defendant was a common carrier, but based on this case, I should anticipate a Motion to Dismiss. I'll just hope defense counsel doesn't keep up on the case law.

SIX WEEK SABBATICAL OVER

Due to the press of business, I have not posted in quite some time. Gotten a bit more organized, which in theory, will lead to more regular posts...

CAPS PASS IN ILLINOIS

First, I would be remiss if I didn't comment on the deplorable legislation recently passed by the Illinois Legislature. They have passed legislation that will place caps on the amount of non-economic damages(i.e. pain and suffering) that victims of medical malpractice can recover. The evidence is overwhelming that caps will have virtually no impact on medical malpractice premiums. And the alleged "doctor flight" is pure fiction. There are now almost 30% MORE doctors in Illinois than there were in 1995. A recent study by the AMA failed to turn up any evidence that doctors are fleeing from states that don't offer caps.

Medical malpractice victims typically have grievous, life-altering injuries. Although technically these people still have a constitutional right to a jury trial, caps legislation effectively renders that right meaningless.

FORD HIT WITH $28 MILLION VERDICT

A jury in Zavala County, Texas recently hit Ford Motor Co. with a $28 million dollar verdict in a fatal rollover case. Two young women, Corina Garcia and Diana Alicia Alonzo, both 19, were thrown from the car and killed. Two other passengers were also thrown, but not seriously hurt. The attorneys representing the plaintiffs argued that the automaker was responsible because it used tempered side glass in the vehicle[a 2000 Explorer]even though Ford had been aware for years that a different type of glass reduced the risk of passenger ejection.

The case was briefly interrupted when Ford lawyers discovered that one of the jurors, Diana Palacios, was apparently romantically involved with one of the lawyers representing the plaintiffs. Ford then requested a mistrial. At the hearing on Ford's motion, it apparently came to light that in addition to dating the lawyer, the juror had apparently tried to steer two of the plaintiffs to her boyfriend for representation. The judge however, denied the motion[but did remove the juror]. The decision to deny the mistrial no doubt going to be raised on appeal.

Ford had presented evidence that the driver had been drinking before the accident and was speeding immediately before the accident. The jury found Ford 90% responsible for the deaths and the driver 10% responsible.

NO COMP LIEN IN MED MAL CASE

The Appellate Court for the Fourth District of Illinois came down with a decision recently clarifying how an employer can successfully claim a Workers' Comp lien on monies recovered in a related med mal case. In Borrowman v. Prastein, M.D., et al, the plaintiff suffered an injury to his heel after a fall at work in April, 1995. Shortly after his fall, plaintiff filed his Workers' Comp claim. Surgery was necessary due to the injuries. After surgery, the plaintiff developed a bone infection. The ortho surgeon prescribed antibiotics. When the infection worsened, another surgery was necessary. The defendant doctor also prescribed two more aggressive antibiotics, Vancomycin and Gentamycin. Although the bone infection cleared, the plaintiff experienced significant health problems associatiated with the use of the Vancomycin and Gentamycin. Ultimately the plaintff suffered irreversible damage to his inner ear. The two antibiotics should not have been prescribed without close scrutiny of the patient. In October of 1997, plaintiff filed suit against the various medical providers for the injuries he had suffered at their hands. In January of 2000, the plaintiff and his employer settled the Workers' Comp claim. Plaintiff's employer then asserted that it was entitled to some of the funds that were recovered in the Malpractice case. The plaintiff disagreed and ultimately the trial Court held that the employer was entitled to a large portion of the plaintiff's medical malpractice settlement.

Both parties appealed. In deciding the matter the Court determined that the Employer was aware that plaintiff had brought an action against the medical providers. The employer however, had not attempted to insert itself into the settlement disussions between the plaintiff and doctors. Furthermore, the Settlement Agreement used in the Comp claim failed to make any mention of the Med Mal case. The Court ruled that under those circumstances, the employer couldn't assert any sort of lien on the med mal proceeds. The lower court's ruling was reversed.

THIS TECHNICAL STUFF

Still struggling to make this a more reader-friendly blog. Will be meeting with two web consultants over the next several days and hope that they can get me on the right path. The patience of those who are reading these entries(assuming that readers actually exist) is appreciated...

SUBROGATION DECISION

Interesting subrogation case out of the Fourth Appellate District. In American Family v. Cleveland, the defendant was a passenger in a car driven by Lakenya Champion. Champion was an American Family insured. American Family paid various medical expenses on behalf of Cleveland. Cleveland sued the driver of the other car and obtained a settlement. Not suprisingly, American Family wanted their money back. They sue Cleveland. At trial, the Court dismisses Counts I and II, where American Family alleged contractual subrogation and that Cleveland was a third party beneficiary. Court also found for Cleveland on the remaining count, equitable subrogation. Again, not suprisingly, American appealed.

On appeal, Cleveland argued that she wasn't liable for the medical payments because she wasn't a signatory to the contract, and thus, American couldn't enforce the contract against her(even if she was a third party beneficiary). The Appellate Court didn't buy it. The opinion noted that Cleveland wanted her cake and wanted to eat it too. The Court found that Cleveland couldn't accept the benefits of coverage under the contract and at the same time reject the subrogation rights under the same contract. The trial court was reversed.

MED MAL INSURER NOT RAISING RATES

In a suprising development reported in the Chicago Sun Times on April 7, 2005, ISMIE, the insurance company for doctors[with about 60% of the market]has indicated that for the first time in 5 years, the company won't be raising their premiums. Although the Republicans drone on and on about a Medical Malpractice "explosion" and "crisis", the undisputed numbers tell a far different story. There were actually fewer Illinois malpractice cases filed in 2004 and the average amount ISMIE paid on claims went down 6%, to $556,000. Dr. Harold Jensen, the chairman of ISMIE had an unusual take on the numbers. Jensen felt that doctors had drawn attention to the "malpractice crisis" by[and I am not making this up]wearing green armbands.

It should also be noted that in 2004 ISMIE took in $420 million in premiums and only paid out $150 million in claims. Wow, $270 million to the good. Green seems to be an appropriate color for ISMIE as well.

CHAMBER OF COMMERCE SURVEY

BIG SUPRISE: U.S. CHAMBER OF COMMERCE DOESN'T LIKE ILLINOIS COURTS!

According to a March 8, 2005 a report by Kevin McDermott in the St. Louis Post Dispatch, the US Chamber of Commerce claims Illinois has a anti-business climate. No shock there, because the Chamber jumped on the "tort reform" bandwagon last year and has been pushing the same propoganda for months. Just wanted to comment though on the questionable methodology the Chamber folks used in reaching its opinion that Illinois is anti-business. They called senior attorneys at companies with annual revenues of at least $100 million and asked them to give their opinions on the Illinois Courts. Wow, the Chamber should really be commended for knocking itself out, going after such a diverse cross section of voters. The Chamber has lost all credibility - it just continues spouting inaccurate, misleading statistics designed to scare the public into thinking the legal system is run amok. The Chamber has simply become another mouthpiece for the Conservative movement.

MEDICAL MALPRACTICE "CRISIS"

I have been requested to speak at my local Chamber of Commerce meeting tomorrow on the alleged Medical Malpractice crisis in Illinois. The United States Chamber of Commerce, and a number of local chambers as well, have been very vocal about how this "crisis" is driving doctors out of Illinois. Suprisingly, we trial lawyers, the guys whose livelihood depends on communicating, are not doing a particularly good job getting our message out. The tort reform people have framed the issues - and from what I can see, aren't terribly concerned with accuracy or truthfulness. I have set forth below some of the mistruths the "tort reform" agents are spouting:

1. Caps on non-economic damages is a fair way to limit damages. Not quite. Caps discriminate against the young, the elderly, the poor, females and minorities. Those are the groups who may not have large economic losses[i.e. lost wages] that would offset the reduction in non-economic damages.

2. Caps will lower malpractice premiums. Not so fast. 19 states, over a 12 year period from 1991 to 2002, enacted some form of caps. In those states, the median increase in malpractice premiums over that span was nearly 50%. The median increase in premiums in non-cap states was significantly lower. Similarly, a 2003 General Office of Accounting study found no support for capping damages as a way to lower insurance rates.

3. Malpractice payments are the primary reason insurance rates go up. Not quite. The National Bureau of Economic Research found that malpractice verdicts and awards are not the primary force behind premium increases. A number of factors causes increases, including industry competition and the insurance underwriting cycle.

4. Caps have worked in other states. Ah, no, not quite. Mississippi, Nevada, Oklahoma, Texas and Ohio have all recently enacted caps. In those states premiums rose at nearly twice the rates as compared to states that did not have caps. In Missouri, where caps have been in place since the 1980's between 2000 and 2003, claims dropped to record lows and total payouts were down as well. Nonetheless, insurance premiums for physicians went up 121% in those three years.

5. Effective PR will get claims down[and premiums will surely follow]. Again, not quite. In Illinois, the number of claims ISMIE[ a large physician insurer] has seen the last several years has dropped. ISMIE's premiums, however, have continued to rise.

6. Doctors are running for the borders. Not true. As of May, 2004, there were nearly 40,000 licensed doctors in Illinois, up 5% from 2003. There are 9000 more doctors in Illinois in 2003 than there were in 1994.

7. The medical malpractice "crisis" is causing physician income to plummet. Not really. Physician income has taken a hit recently for a number of reasons, including Medicare reimbursement restrictions and HMO reimbursement policies. In 2001 an exhaustive study ws undertaken of California doctors. Caps had been in place for years. A full 43% of those polled indicated they intended to close their practice by 2003 citing a cut in income due to managed care and low reimbursement.

I got a lot of the above information from the Illinois Trial Lawyers Association Website. Give it a look.

VERDICT OF NOTE

As recently reported in the Chicago Sun-Times, a Chicago jury recently whacked the Chicago Police Department for $17.5 million after a police chase went horribly wrong. The plaintiff, Vernon Hudson, was driving on the Eisenhower Expressway in 2001, on his way to help a friend whose battery had died. He heard sirens and pulled over to the side and saw 10-20 police vehicles whiz by as they chased a murder suspect. Another officer, assigned to the Chicago Housing Authority, heard the chase over the radio and promptly joined it. The officer had no authority to do so and crashed into Hudson's car. As a result of the crash, Mr. Hudson, age 51, could no longer use his legs and has only limited use of his arms.

WORKERS' COMP RULING CLARIFIES "REPETITIVE TRAUMA"

In a recent Second District case, the Appellate Court discussed the proof necessary for a repetitive trauma claim. In Hines Precision v. The Industrial Commission the claimant worked as a truck driver for five years. He drove approximately 200 miles a day. He delivered trusses that had to be strapped down either manually or with a tool. To do so required substantial force. The claimant estimated he tied down the straps 35 to 40 times a day. The claimant often had to re-strap a load due to rough roads. In late 2000 the claimant began having pain in his elbows, which he had never suffered before. Ultimately, he was diagnosed with carpal tunnel and nerve entrapment. Claimant's treating surgeon testified that there was a causal connection between the condition and claimant's job.

The employer hired an "independent medical examiner" to see the claimant. After finding the same condition, the expert testified there was NO causal connection. The foundation for his opinion was that the claimant didn't perform the strapping down on a regular basis. And he also opined the carpal tunnel could be related to his weight or smoking[though claimant hadn't smoked in 9 years]. The abitrater found no causal connection. The Industrial Commission reversed.

On appeal, the employer argued that the claimant spent only 2% of his day strapping down the loads, so there couldn't be a causal relation. The Appellate Court however, correctly pointed out that there is no requirement that a certain percentage of time be spent on a task to make it "repetitive". Interestingly, the Court also pointed out that the alternative explanations offered by employer's expert were "suspect".

One Tough Client

Met with a new client the other day to discuss his Workers' Compensation case. The client, an immigrant, has been working at a Chicagoland area company for some 30 years as a mechanic. He fixes the machines when they break down. Last August he was fixing a pulley machine and had gotten it back together when he was distracted and accidentally allowed his hand to touch one of the pulleys. Right hand gets sucked into machine, he loses most of his index finger, a good deal of his little finger and suffers enormous muscle and skin damage to the remainder of the hand. He has limited motion and feeling in the hand. Can no longer close his hand around a hammer. An enormous injury. I've seen clients carry on an on about far less serious injuries. This guy? No big deal. According to his kids[who came to the interview to help translate]the ambulance attendants said he rode in silence to the hospital, and made no complaints. He rushed through therapy so he could get back to work. Back fixing machines, with only one good hand and never complains. I told the kids we should at least investigate a products liability claim. Juries typically respond very well to people like this guy - suffered a terrible injury but isn't going to let it ruin his life.

Good Advice about Clutter

Every month the ABA Journal has a column "McElhaney on Litigation". The column is written by James W. McElhaney, the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland, and the Fred Parks Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. The column in the April 25, 2005 issue commented on how to put on a streamlined, clutter-case. I have paraphrased some of the author's points below(with apologies to the good professor):

1. If evidence doesn't help your case, it hurts. Dump it.

2. Concede the points you will not win and move on. If you think your argument on a certain point stinks, odds are the jury will likely hold the same opinion - or worse. Don't risk your credibility on a issue or fact you won't win.

3. Show the jury that your cause is just and the defendant's arguments are not. Juries like to right wrongs. As Professor McElhaney notes "...the key to big damages is big fault".

4. Get rid of those claims that that make your client look greedy. Example: years ago, I was involved in a medical malpractice case where the plaintiff, a nice old guy in his late 70's had a bad result after a hernia operation. He had legitimate pain issues. In addition however, he further claimed the malpractice had impacted his sex life- he could no longer have sex with his wife(also in her late 70's) four to five times a week like he had before the surgery. The defense lawyers could barely contain themselves at his depo. Needless to say, that portion of the case was dropped. Again, to paraphrase McElhaney, don't let your client become a victim of his own rhetoric.

5. Be careful advancing inconsistent claims. Although the law may allow for it, juries usually won't understand the distinctions, no matter how hard you try to explain them in closing.

6. Drop any evidence or theories if they don't into your overall scheme of the case[no matter how brilliant they may be].

7. Don't put in all the evidence you have. First, the last thing the jurors will be thinking[before nodding off]is that the case, is boring and repetitive. Secondly, putting all that evidence in just gives the defense all kinds of opportunities to score easy baskets when an inconsistency inevitably surfaces.

8. Be careful choosing your witnesses. You want your witnesses to be pleasant, understandable and interesting. If possible[and sometimes it simply isn't]avoid using pompous, self-important windbags who love the sound of their own voice. Again, sometimes you can't avoid the self-important windbag/expert. If so, spend extra time preparing said windbag. Try to make him human. Have him discuss the years he served[at no cost] as the high school team doctor. Stop him when he uses those big medical words and have him explain, in English, what they mean. Maybe you'll want to put a piece of chalk in his hand and have him draw the cervical spine on a blackboard and highlight where the fractures were located. If you can get the jury to see the expert as someone they would trust to help them with a complicated issue, you've done well.

9. Charts, graphs, pictures and summaries make impressions and save time. The jury will silently thank you.

10. Don't try to hide bad evidence. Bring it out yourself. Don't give the defense an opportunity to bludgeon you with something.

Medical Malpractice Case Settles

I am pleased to report the medical malpractice case I mediated on Friday, March 18, 2005 settled. The defendants asked for confidentiality, and typically I would not agree. In this case, however, there were valid reasons so I won't go into details regarding the settlement.

I will comment however, on negotiation tactics that I saw at the mediation and have begun to see with increasing frequency. The defense lawyers/insurance companies are not responding to the demands that I make[and they request]. Instead, they indicate the demand is "too high" and they won't make an offer until I reduce it to a range they find acceptable. The objective obviously is to get the numbers down before they even get into the game. In my experience thus far, they use this tactic only in cases where there is no chance of a runaway verdict. I doubt this is happening in Illinois alone, and probably is a tactic being used nationwide.

A Brief Introduction

INTRODUCTION

I just got this blog up and running and will be fine tuning it in the weeks to come. I hope it provides some benefit to those who read it.

MEDICAL MALPRACTICE MEDIATION

I am scheduled to mediate a medical malpractice case on Friday, March 18, 2004. Mediation is an alternative to trial where a trained mediator/lawyer attempts to bang out a settlement between the parties. The case involves a young boy who nearly died after an umbilical hernia repair, which should have been a fairly routine surgery. The attorneys for the defendant doctors/hospital have indicated they wish to settle the case, perhaps through a structured settlement but no offer has been made. Will report further after Friday's session.