LOUISIANA AHEAD OF THE CURVE

A Louisiana Appellate Court recently overturned the state's medical malpractice damages caps, because the cap fails to provide an "adequate remedy" for tort injuries. The ruling came out of a medical malpractice case that arose when a William Arrington died in a Louisiana emergency room. The family was paid $500,000 from the Louisiana Patient's Compensation Fund, the maximum they could receive under the cap law. The family appealed, seeking to have the damages limitation found unconstitutional. Judge Elizabeth A. Pickett, the author of the Appellate Court opinion, said the Malpractice Act restricted patients' rights in two important ways. First, patients under the Malpractice Act were required to appear before a review panel before moving forward with the case. Secondly, patients were limited to a $500,000 recovery. To quote Judge Pickett, "The balance has been weighed heavily in favor of health care providers, their insurers and the Patients' Compensation Fund by the two-thirds erosion in the 'dollar' from 1975 to date, which limits the value of the claim to one-third of its value in 1975, thereby violating the equal protection laws guaranteed by the Louisiana constitution." The Illinois Supreme Court will likely be facing the same issue in the very near future. Hopefully the Court will follow Louisiana's example.

CATCHING UP...

Haven't posted in quite some time because I was preparing for a rather unusual property damage trial scheduled to start in a couple of weeks. Thankfully it appears the case has settled. I have, however, been keeping my eye on developments in the legal community....

ANOTHER VIOXX VERDICT Vioxx took a BIG whack from a federal jury down in New Orleans back in September. After a month of trial, the jury took just 5 hours to determine that Vioxx maker Merck had knowingly misrepresented or failed to disclose a material fact to doctors who were treating Gerald Barnett, a former FBI agent. [The online article I saw didn't disclose the exact misrepresentation]. Barnett had been taking Vioxx for nearly three years prior to a 2002 heart attack. After his coronary, Barnett underwent a 5 way heart bypass. He continued taking the drug for two years after surgery, until it was pulled from the market. The jury found that Merck's misrepresentation was a legal cause of injury to Barnett. The jury awarded Barnett $50 million[that is not a misprint]in compensatory damages and $1 million in punitive damages. Merck, not suprisingly, is unhappy with the result and has vowed to appeal, claiming that Barnett was predisposed to heart problems, regardless of his decision to take the drug. So, as of late September, Merck has one win and one loss in federal jury trials involving Vioxx.

BE CAREFUL WHAT YOU POST ON THE INTERNET!!!

Be careful what you post on the Internet. That is the painful lesson Ms. Carey Bock learned after posting some negative remarks about Sue Scheff on the internet. Their dispute arose when Bock went to Ms. Scheff for some assistance in getting Bock's twin sons withdrawn from the Costa Rican boarding school in which Bock's ex-husband had placed them. Ms. Scheff, who runs a referral service called Parents Universal Resources Experts, referred Bock to a consultant. The consultant assisted Scheff retrieve her sons. Some portion of the transaction however, disturbed Bock. She then posted some negative messages about Scheff on an internet message board dedicated to parents putting troubled teens through boarding schools. Scheff saw the comments. She filed suit against Bock in Florida in 2003.

Bock initially had a lawyer, but soon was acting pro se due to financial pressures. To make matters worse, Bock, a native of Loiusiana, was uprooted by Hurricane Katrina and had to relocate to Texas. Bock didn't show up for trial and didn't offer any defense. The judge found for Scheff. A jury then heard Scheff's arguments for damages. Bottom line - an $11.3 million dollar verdict against Bock. After the verdict, Scheff noted that "People are using the Internet to destroy people they don't like and you can't do that". Bock commented that "Only one side of the story was told in court. Nobody heard my side".

For more info, see Laura Parker's October 10, 2006 article at USATODAY.com

MERCK WINS ONE IN VIOXX LITIGATION

In the latest verdict arising from the Vioxx litigation, Merck prevailed. A New Orleans jury recently found for Merck after it had been sued by a Kentucky man who accused Merck of failing to warn his doctors about the dangers of Vioxx. Robert Garry Smith, a 56 year old chemical plant worker, began taking the drug in 2002, after the label was changed to reflect a study that had found that use of the drug caused increased risk of cardiovascular problems. Smith had a heart attack the following year.

Smith's case was the first case that involved cardiovascular complications after the label had been changed. Nine other cases involved claims of cardiovascular damage before the label had been changed. Merck faces two more federal trials in the same courtroom this year. Merck has insisted throughout the litigation that it will vigorously defend each case. There are in excess of 18,000 cases pending. Vioxx was pulled from the market in 2004.

LAKE COUNTY BUSINESS DEFAMATION VERDICT

Interesting verdict out of Lake County, Illinois a couple of weeks ago, as reported by Barbara Rose in the Chicago Tribune. John Maki and his company, J. Maki Construction sued the Chicago Regional Council of Carpenters for distributing handbills that claimed that Maki and his company built substandard home. The handbills were handed out in Lake and McHenry Counties, where Maki does a lot of building. One of the fliers apparently contained a limerick of sorts where Maki's name was paired up with the word "crappy". In addition, the same flier publicized alleged problems in homes in a Maki development. Maki alleged that the flier was false, misleading and included incorrect quotes.

In addition, Maki claimed that the defendant conducted an 18 month campaign of harassment that included demonstrators following Maki to golf courses and restuarants. The defendant claimed that its actions were a perfectly lawful campaign arising out a labor dispute over Maki's alleged failue to pay standard wages.

The jury didn't think the campaign was lawful and awarded Maki $2.35 million dollars, in punitive and compensatory damages. The defense has vowed to appeal.

BIG SUPRISE! SOUTH CAROLINA CAPS DON'T BRING LOWER PREMIUMS

One year after medical malpractice caps became the law in South Carolina, a recent article in Greenville News reported that med mal insurance premiums are still going up. The article, written by Liv Osby noted that the caps became law in July of 2005. Pain and suffering awards in South Carolina are now limited to $350,000. Supporters of the caps argued that they were necessary to reduce high jury awards, which, they claim, lead to soaring malpractice premiums, and, doctor flight. So, a year later in South Carolina....

Malpractice premiums continue to go up. But, according to Gerald Harmon, M.D., President of the South Carolina Medical Association, the increased premiums were expected. According to Dr. Harmon, "We did not expect to see an immediate reduction in the rates. We are hoping to see a flattening of the rates and perhaps in the future, lower rates." Hoping to see a flattening of rates? Lower rates perhaps in the future? Med Mal caps proponents have consistently screamed a very simple formula: caps = lower verdicts and lower premiums. So why does Dr. Harmon sound so cautious? Because he probably knows that premiums will continue to go up. They will continue to go up for a very simple reason. The insurance companies made bad investments decisions the last several years. Returns weren't what they hoped for. Quick fix? Point the finger at trial lawyers and say that runaway verdicts are causing doctors to flee the state and increasing insurance costs. But, as more data comes in, it is increasingly clear the propaganda spread by "tort reformers" simply isn't true.

Some examples from South Carolina:

Tort Reform claim: high premiums cause some doctors to leave the state, and others to stop performing high-risk procedures.

Fact: According to the State Budget and Control Board Office of Research and Statistics, South Carolina gained 800 doctors between 2000 and 2005, with gains in obstetrics, neurosurgery and emergency medicine, traditionally three high risk specialties.

Tort Reform Claim: med mal claims are increasing.

Fact: According to a Public Citizen analysis, between 1991 and 2004, med mal suits dropped by nearly 10%.

Tort Reform Claim: there are more and more multi-million dollar verdicts in med mal cases.

Fact: Between 1991 and 2004, the number of multi-million dollar payouts declined 56%, but during the same time period, premiums continued to increase!

Sadly, the insurance industry/tort reform movement continues to do a far superior job communicating their message than trial lawyers. As a result, caps get shoved down our throats by the insurance industry, despite increasing evidence that caps have little if any impact on premiums.

SANTORUM HYPOCRISY

The ITLA Website had an interesting link to a September 5, 2006 opinion piece written by Mary Shaw in OpEdNews.com. Mary pointed out the hypocrisy of Pennsylvania Senator Rick Santorum, presently involved in a tight re-election campaign against Democratic challenger Bob Casey. Seems that Santorum is running ads blasting Casey for his failure to support tort reform. Shaw's article described how the Santorum pieces talk about all the poor, downtrodden doctors who are fleeing the state because of the big awards entered in med mal cases. In addition Santorum has been a vocal proponent of caps on non-economic damages[pain and suffering]in personal injury cases, at one point proposing a cap of $250,000.

And now, to borrow a phrase from Paul Harvey, for the rest of the story...What Rick doesn't mention is that he isn't always for caps. For example, when his wife sued her chiropractor in 1999 for $500,000. Rick didn't support caps in that instance, no sir. Seems caps on damages are only appropriate when the Senator is talking about people to whom he is not married. Then, by all means, caps are a good thing. The United State Senate will be a better place without this guy. November can't get here quick enough.

HIV VERDICT OVERTURNED

The Illinois Appellate Court recently overturned a landmark verdict on behalf of a woman who claimed her dead fiance had infected her with the HIV virus. As reported by Steve Patterson in the Chicago Sun Times September 4, 2006 News Archive, Jane Doe[not her real name]filed suit against her deceased lover, Albert Dilling, and his parents, for their failure to disclose Albert's HIV status. Doe claimed that Dilling and his family knew about his HIV status for years prior to his death. She asserted that when she asked Albert about alarming changes in his appearance he assured her the changes were due to non-HIV conditions. Doe also alleged that after she noticed her own symptoms, she asked Albert's parents about his HIV status. According to Doe, they assured her he was not HIV positive. Dilling's parents denied any such representations were made. The case went to trial and a jury awarded Doe $2 million in damages.

The Appellate Court however, reversed the trial court's decision. The ruling noted that Doe was suspicious about Dilling's health long before she ever met Dilling's parents, and could have been tested instead of relying upon their alleged representations. The Court also ruled that since Dilling's parents denied they knew he was HIV positive, Doe was not deceived. Doe, who is presently suffering from an aggressive form of HIV, plans to appeal to the Illinois Supreme Court.

BIG FRANK SUES THE SOX

Former White Sox slugger Frank Thomas recently filed suit against the Sox, alleging that the negligence of team physicians may have cost him millions of dollars. Thomas is alleging that in 2004, doctors at Midwest Orthopedics at Rush University Medical Center misdiagnosed his left foot injury as a bruise, when in fact, there was a fractured bone in his foot. Thomas further alleges that White Sox docs improperly cleared him to play and that he later broke a second bone in the foot. Vaughn McClure's article in the July 14, 2006 Chicago Sun-Times discusses the lawsuit. It appears from the article that Thomas will be taking the position that the negligence of the doctors cost him millions in salary. Big Frank's argument is that the fractures were the reason he didn't have great seasons in 2004 and 2005. And, those performances were why the Sox didn't pick up Frank's $10 million dollar option in 2006. Instead, the Sox bought him out for $3.5 million. The Oakland Athletics picked him up for a mere $500,000 for 2006, although his contract is heavily laden with incentives and he could make $3 million if he has a good season. And, at present, Frank is batting .260, with 24 Home Runs and 67 RBI's, so he is having a pretty decent year. Frank hired the premier Chicago personal injury law firm in the City of Chicago to prosecute the case, so the White Sox had better bring their A game to the Courtroom.

MERCK WINS ONE IN NEW JERSEY

Merck & Company was on trial again recently in New Jersey on a claim that the drug Vioxx had caused a 68 year old woman to suffer a heart attack. Elaine Doherty sued Merck, claiming that she suffered a heart attack in January of 2004 after having taken Vioxx for over two years. The jury found against Ms. Doherty. The Doherty cases was a particularly crucial case for Merck, as it came on the heels of an enormous verdict against Merck in April of 2006. In that case John McDarby had prevailed on his claim that Vioxx had caused him to suffer a heart attack and the jury awarded 4 million dollars in compensatory damages and 9 million in punitive damages. [See Blog entry of April 17, 2006]. So the executives at Merck were holding their breath to see if they would take another big hit. They can exhale ...for now.

Ms. Doherty's case was the first in which jurors considered whether Merck had failed to warn patients about cardiac risks, rather that doctors. The jury found that Merck did indeed properly warn doctors but didn't warn Ms. Doherty of the risks. The jury further concluded however, that despite, Merck's failure to warn, Vioxx had not been a major factor in the 2004 heart attack that Ms. Doherty had suffered. Merck had argued in part , that Ms. Doherty would likely have suffered a heart attack anyway, due to other conditions, including obesity, diabetes, high blood pressure and high cholesterol. So Merck is presently 4 for 7 in cases that have gone to the jury. The three verdicts against Merck are being appealed. According to various news reports, there are presently 16,000 Vioxx cases pending against Merck, and Merck has set aside $970 million dollars for legal costs.

MOTION FOR ATTORNEY FEES/QUANTUM MERUIT

Recently, I found myself in a position where I had to draft and present a Motion for Attorney Fees based on Quantum Meruit. This was new ground for me - for eight plus years on my own, I had been fortunate enough to avoid having to go through this exercise. I had withdrawn as plaintiff's counsel in a contingency fee case due to a conflict, the details of which, though interesting, are ultimately irrelevant. In any event, I then spent the better part of a week painstakingly going through my file to document the time I had spent on this matter. And, as it turns out, I had spent an ENORMOUS amount of time on this case. I attached the hours spent, as well as my out of pocket expenses to my motion and appeared for the hearing on July 19. The Court has indicated that it will issue a written ruling on August 9.

If any Illinois Attorney out there is looking for a sample motion, please contact me and I will get you a copy of my handiwork. I will know on August 19 just how persuasive it was.

CITY OF CHICAGO SUED FOR $100 MILLION

The parents of young California woman filed suit in federal court in Illinois recently, claiming that their daughter suffered catastrophic injuries as a result of the actions of the Chicago Police Department. The alleged facts, as reported by David Heinzmann in a June 10, 2006 article in the Chicago Tribune would make any parent shudder. The complaint alleges that 21 year old Christina Eilman, found herself stranded in Chicago on May 6, 2006, without enough money to return home to California. In addition, the complaint alleges Christina lacked sufficient "mental capacity" as well. Although the exact sequence of events isn't entirely clear, Christina's parents purchased a Southwest Airlines Ticket, with a departure date of May 7, 2006. The complaint further alleges that Christina missed the flight because she was in police custody after having created a disturbance on a CTA platform. She was arrested and the Chicago Police called her parents, leaving a message that Christina was "difficult to understand" and that the police "didn't know what they had on their hands". The complaint further alleges that the family then frantically began calling Chicago Police officials in an attempt to locate Christina and get her some help. In addition, the family allegedly advised the police at that time that Christina suffered from bipolar disorder, mania and depression.

The complaint also alleges that Christina's parents never received any information on their daughter's release or her mental condition, which was allegedly deteriorating. Ultimately, Christina was released by the Police into a high crime area at 51st and Wentworth. The family claims she should have been admitted into a physchiatric ward. The complaint alleges that after her release, Christina wandered around the neighborhood before being approached by some people at a restuarant. She then ended up in a vacant apartment on the seventh floor of a local high rise. An alleged gang leader, Marvin Powell then allegedly sexually assualted her. Later that night, Christina fell from the apartment window, dressed only in underwear. She is now paralyzed from the waist down and has yet to regain consciousness. The City has refused to comment. Powell is being held without bail in Cook County jail.

DOCTOR SUES HIS EMPLOYER FOR MALPRACTICE

This space hasn't been particularly active the last several weeks due to an administrative nightmare - my assistant's spouse got a job in another state. Imagine my suprise when she told me she was going to go with him. I now have a renewed appreciation for all that personal assistants/secretaries do. That crisis has now been solved[I hope] and I can get back into a regular posting schedule.

I have noted a number of interesting legal affairs articles in the local papers over the last several weeks including a interesting story in the May 31, 2006 Chicago Sun Times. The article discussed a Washington state doctor, Dr. Terry Phillips, who filed a medical malpractice lawsuit involving St. Joseph Medical Center, the hospital where Phillips works. Dr. Phillips, an anesthesiologist, is suing Franciscan Health System, owner of St. Joseph Medical Center, for malpractice that allegedly caued the death of his wife, Patty. Ms. Phillips had gone to the hospital in March with severe abdominal pain. Dr. Phillips felt the pain was caused by an intestinal problem that warranted immediate surgery. Unfortunately, his wife was left in a hospital bed for hours without appropriate monitoring equipment and ultimately died. An autopsy revealed that Dr. Phillips was right. His wife had 20 inches of damaged intestine. Sadly, tragic things happen at every level of the socioeconomic scale. Even doctors can be victimized by medical negligence. It is inevitable that somewhere along the line, the spouse of an Illinois physician will be the victim of bad medical management. And when that time comes, how will that doctor feel about the damages limitations that are currently the law in Illinois?

ALLEGED SEX ABUSE VICTIM PERMITTED TO SUE VATICAN

In a landmark decision, a federal judge in Oregon permitted a man claiming to have been abused by a priest to go forward with his suit against the Vatican. Attorneys for the Vatican had tried to get the claim dismissed, but were unsuccessful. At present, the victim will be allowed to press forward with the Vatican as a named defendant.

The claim involved grows out of the actions of Andrew Ronan. Ronan had been a priest in Northern Ireland in the 1950's, but was reassigned after being accused of sexual misconduct by a student. [According to the federal lawsuit, Ronan admitted to his misconduct in Ireland]. Ronan then found himself reassigned to St. Philip High School, an all boy school in Chicago, from 1959 to 1965. And guess what? He was AGAIN accused of sexual misconduct by three students at St. Phillip. He was then shuffled off to Portland, Oregon where he placed in a ministry where he had access to children. He left the priesthood in 1966 but not until he was accused of additional allegations of sexual misconduct in Portland. One of Ronan's Oregon victims recently filed suit against the Vatican in the Federal Court in Oregon. The Vatican, understandably, tried to get the case thrown out, citing the Foreign Sovereign Immunity Act. The Act protects foreign countries from having to defend themselves in U.S. Courts.

But Judge Michael W. Mosman, however, was having none of it. In a courageous ruling, Mosman held the Vatican were not entitled to the protection afforded by the Act. Mosman founded his ruling on a portion of the Act limiting its scope where there the conduct involved is tortious or harmful. Mosman noted: "Placement of a known child molester in a Portland parish, where he would have unlimited access to young boys for the THIRD time, without warning the new parishioners, is not the kind of discretionary act that the exception is meant to immunize." [the emphasis there is mine]. Kudos to Judge Mosman for refusing to let the Church and its lawyers run and hide. This case is just the most recent example of why Catholics in the United States no longer have much faith in their Church. How is it, that a guy like Ronan can be allowed to drift through the country and repeatedly be given unfettered access to children? Simple answer - because the Church would much prefer to cover up these problems and put additional kids at risk then admit that its mistakes. Hopefully other judges across the country will show the courage that Mosman showed and hold the Church accountible for its sins.

HUGE VERDICT AGAINST COOK COUNTY SHERIFF

As reported by Steve Patterson in the May 25, 2006, Chicago Sun-Times, a Cook County jury recently reached an enormous verdict on behalf of a 58 year old woman who was rendered a quadriplegic after the car she was driving was struck by a Cook County Sheriff's Squad Car. There was evidence at trial that the squad car was going 70 miles per hour when it slammed into the rear of Margaret Petraski's vehicle. Petraski was turning into an intersection when the squad car sped through a red light and into the Petraski vehicle. The officer was responding to a non-emergency call. Petraski who now is cared for in a nursing home was awarded over $28 million dollars. A hotly contested issue at trial was the admissiblity of evidence that at the time of the occurrence, Petraski's blood alcohol content[BAC] was .11. In Illinois, any reading of .08 or higher is considered legally drunk. Judge Richard Elrod ruled that the plaintiff's BAC was irrelevant for a couple of reasons. First, the procedures used at the hospital to obtain the reading are known to elevate the actual reading. In addition, the article indicated that the trial court also kept the BAC out because there was no evidence that Petraski had done anything that contributed to the crash.

Cook County Sheriff Michael Sheahan, who has been known to tangle with judges in the past, ripped Judge Elrod's on the alcohol, noting that "In my 35 years of law enforcement, experience, I've never heard of a judge barring evidence of drinking and driving in an auto accident case. " Sheahan went on to note that "...driving while intoxicated is never irrelevant". Actually, he is wrong. Sometimes evidence of drinking is inadmissible. In this case, where the plaintiff was not shown to have done a single thing wrong, permitting evidence of a potentially compromised BAC would have been unduly prejudicial. And there is a final irony to the verdict. Judge Elrod used to occupy the same chair Sheahan presently occupies - Elrod is a former Sheriff of Cook County.

STUDENT LOCKED OUT OF SCHOOL SUES AFTER RAPE

Jim Suhr wrote an interesting article in the May 4, 2006 Chicago Sun-TImes about a tragic situation in East St. Louis, Illinois. According to the article, a female high school student had stayed late at school in order to meet with her counselor. After the meeting was completed, the student went outside, but realized she had missed her bus. The student attempted to get back into the school to call for a ride, but was barred from re-entry, and told to walk home or walk to a nearby bus stop. The student then began to walk to the bus stop. As she approached the bus stop, she was accosted by four men who forced her into a car. The student was subsequently raped by one of the men. The student recently filed a federal lawsuit against the school district and several administrators. The lawsuit alleges that the policy to bar re-entry to the school building strands students in an area riddled with violent crime. The complaint goes on to allege the school knew that students locked out on the street were in danger, but enforced the policy anyway, in reckless disregard for their safety. I anticipate the District attempting to get the suit tossed claiming protection under the Intergovernmental Tort Immunity Act. Have to see where this case goes...

CUBS ACE PRIOR HUNG WITH FIRST LOSS OF 2006

Cubs pitcher Mark Prior suffered his first loss of the 2006 season - in the not so friendly confines of the Circuit Court of Will County. Prior had been sued by Just Ducky Too, a Naperville business for failing to fulfill the terms of a personal appearance at the store. Prior agreed to sign 1,000 replicas of Wrigley Field. For that Herculean effort, he was to be paid $50,000. In addition, he was to sign another 300 collectibles at the store, for which he was to be paid $19,800. The event did not go well. Just Ducky Too sued Prior, alleging that he had failed to sign the requisite number of items and left the store abruptly, resulting in lots of unhappy fans. Prior, through his attorneys, argued that Just Ducky tried to make the appearance a "Meet and Greet" requiring Prior to do more "work" than the contract specified.

Judge Herman Haase ruled on May 4, 2006 that Prior owed the store $31,000 because Prior never signed the requisite number of stadium replicas. Haase did throw a bone to Prior when he noted in his ruling that there was no evidence that Prior had behaved badly.

Prior's attorneys noted that the ruling was a "clear vindication" for Prior. Just Ducky Too's lawyers, in response, questioned how anyone could look at the ruling as a clear vindication when Prior was ordered to pay $31,000[good question, I might add].

No comment from the Cubs about the lawsuit. Nice to see the Cubs are consistent. Lose at home, lose on the road and lose in Court.

FOX LAWSUIT AGAINST WILL COUNTY STATE'S ATTORNEY TO GO FORWARD

Kevin Fox has been allowed to go forward with his lawsuit against former Will County State's attorney Jeff Tomczak. The lawsuit arose out of the murder of Fox's young daughter Riley. Fox sued Tomczak, as well as several other defendants, alleging that they conspired to implicate Fox in the murder. According to the complaint, the defendants came up with a story that started with Fox accidentally injuring his daughter at home. The concocted story then had Fox, in a panic that he had killed Riley, faking her kidnapping and sexual assault. Fox further alleges that the defendants scared him into confessing to the murder by suggesting that he might only face manslaughter charges. Fox was imprisoned for eight months, but ultimately freed when DNA from his daughter's body implicated an unknown party. The DNA samples the resulted in Fox being freed had inexplicably sat at an FBI lab for approximately 8 months before being tested. Tomczak had filed a motion to dismiss the case, but Federal Judge John Darrah denied the motion. Darrah did dismiss a claim against Will County Sheriff Paul Kaupas.

FREQUENT TRESPASS DOCTRINE

The Illinois Appellate Court recently discussed the "Frequent Trespass Doctrine" in the Nelson v. Northeast Illinois Regional Commuter case. In that case, Shanica Nelson filed suit against Metra after she was struck by a commuter train while trespassing on Metra's tracks. Shanica was injured on September 2, 1999. She had watched her boyfriend's football practice and walked home with him after practice. As she did so, she came to a path near the Metra tracks that was apparently used quite often by kids in the area. She followed the path to where it ended very close to the actual tracks. She then walked across the tracks, intending to enter the path again on the other side. After crossing the tracks, Shanica was walking toward the path on the other side when she was struck by a train. Metra moved for summary judgment, arguing in part, that the train tracks represented an "open and obvious" danger. The Court denied the motion, but agreed to certify the following question: Whether the risk of crossing a railroad track on which trains may be operating, is an open, obvious peril for which the railroad owes no duty, regardless of the legal status of the individual crossing the track.

Plaintiff argued on appeal that the facts alleged in the complaint placed plaintiff in the "frequent trespass exception". Under this exception, a landowner is liable for injuries to a trespasser proximately caused by its failure to exercise reasonable care in the course of activities where the landowner knows, or should know, that trespassers habitually enter its land at a certain point. The Appellate Court explained the rationale for the exception, citing Miller v. General Motors, 207 Ill.App.3d 148, "This exception has developed because of the concern that human safety ought to be more important than the landowner's interest in unrestricted freedom to use his own land as he sees fit. This view is especially prevalent in cases in which the burden on the landowner and the expense in taking precautions to prevent harm are not great. If that burden is very slight and the risk of harm to the trespasser is correspondingly very great, some commentators have found good reason to hold the landowner liable for injuries sustained on his land by the trespasser. This rule applies mostly in the case of frequent trespass upon a limited area. Miller, 207 Ill.App.3d at 155. The doctrine, the Court noted, is focused on the landowner's knowledge of the risks, not on the trespasser's knowledge of the risks involved. The nature of the risk as open and obvious becomes irrelevant - the only issue under the doctrine is whether the landower was aware of the risk and was in a position to prevent harm.

The Court went on to hold that any open and obvious risk in crossing the track did not negate the Metra's duty toward plaintiff under the frequent trespass doctrine. The case was then remanded back to the trial court. There is some additional discussion in the opinion relative to the applicability of certain provisions of the Tort Immunity Act. This post is long enough though, and there is no good reason to bore you any further.

ILLINOIS PATIENTS ASKED TO SIGN PLEDGE NOT TO SUE

The Chicago Sun Times recently reported about some doctors at a local Chicago area health clinic using a new tactic to dissuade patients from filing medical negligence lawsuits. The Clinic, WomanCare, asks patients to sign a contract promising not to file "frivolous" lawsuits. The doctors don't require patients to sign, and will even treat those patients who refuse. Wow, those doctors sure are humanitarians.

The contract is supposed to "level the playing field". This idea apparently originated with some outfit called Medical Justice Services, out of North Carolina. Medical Justice CEO Dr. Jeffrey Segal explained that most patients "...see themselves as rational and reasonable, and not the type of person who would file a frivolous claim". The unstated inference there, in case you missed it, is that anyone who does file a medical negligence claim must be both unreasonable and irrational. Segal explained that if a patient who signs the contract later files a medical negligence lawsuit, the doctor can then sue the patient for breach of contract. Medical Justice has also pledged to pay up to $100,000 in legal fees to help doctor with the contract claims. Suits are apparently pending in Ohio and Pennsylvania. Segal commented that the threat of being countersued will deter "frivolous lawsuits"

There are just so many things wrong with this. First, who decides whether a lawsuit is frivolous? The contract, doesn't define the term. But Dr. Segal says the litigation guidelines from medical societies could be used to determine if a lawsuit is frivolous. So in effect, the people who are being sued get to decide if the lawsuit has merit? That doesn't sound like a level playing field to me.

And the whole idea of patients running around filing silly claims against doctors is absurb. First, most medical malpractice cases involve catastrophic injuries. There is nothing "frivolous" about the victims of medical negligence. Lots of these victims die. And lots of them are condemned to lives of permanent disability, deficit and disfigurement. The fundamental assertion in medical cases is that some medical provider caused those conditions. How then, could anyone suggest the case is "frivolous"? Medical malpractice cases are extraordinarily complicated and expensive. In Illinois, just to file the case you need to have a medical expert review the facts and certify a case as meritorious. After that, the patient's lawyer has to be prepared for years of expensive, technical litigation, where he is risking hundreds of thousands of dollars in out of pocket expense, not to mention the cost of his time. Simply put, lawyers don't file medical malpractice claims on a lark in an attempt to squeeze the doctor's insurer for a quick settlement. Any lawyer who did wouldn't be in practice very long.

The saddest part of all this is that there will be victims of medical negligence out there who won't assert their rights because of this scare tactic. Which is just what those guys who blabber on about a "level playing field" want.

MALICIOUS PROSECUTION RULING: "WELCOME TO THE 21ST CENTURY"

The Illinois Appellate Court just made malicious prosecution cases more difficult with its ruling in Reynolds v. Menard (First District, 2006). The plaintiffs, an elderly couple, were arrested at a Menard's store. They had purchased a number of items which they subsequently returned. When they did so it appears they were given a store credit in excess of their purchases. When they subsequently returned yet again to attempt additional purchases, they were detained and arrested for retail theft. The decision to do so was based in part on "red flags" that popped up in the Menard computer system when the history of the purchases was examined. The plaintiffs refused to plea on the criminal charges, went to trial, and were found Not Guilty. They then sued Menard for Malicious Prosecution. A jury found for Menard and further indicated, via Special Interrogatory, that Menard did not act with malice or without probable cause. The trial court then entered judgment notwithstanding the verdict, and after a hearing on damages, a different jury awarded plaintiffs $76,000. Menard appealed, arguing in part, that that the trial court erred in entering judgment notwithstanding the verdict, as sufficient evidence existed to support the original verdict on behalf of Menard.

The Appellate Court first spelled out the elements of a cause of action for malicious prosecution: 1) the commencement or continuation of an original criminal or civil action by the defendant; 2) the termination of that proceeding in favor of the plaintiff; 3) the absence of probable cause for that proceeding; 4) malice on the part of defendant and 5) damages suffered by plaintiff. The Appellate Court also defined "probable cause" as "...a state of facts that would lead a person of ordinary caution and prudence to believe, or to entertain a suspicion, that the person arrested committed the offense charged." The state of mind of the person commencing the prosecution, rather than the facts, or the guilt/innocence of the accused is at issue. After getting the fundamentals out of the way, the Appellate Court got down to the nitty gritty - that reliance on computer records for probable cause is permissible. "Welcome to the 21st Century. We find that probable cause to believe a person is guilty in the context of a malicious prosecution or false imprisonment actions may be based on information from sources other than personal knowledge, including information from other persons as well as from records kept on store computers. The Court held that there was sufficient evidence from which the jury could have found for the defendant. The judgment of the trial court was reversed and the trial court was directed to enter judgment on the jury verdict finding defendant did not act with malice.

POLICE MISCONDUCT RESULTS IN $6.74 MILLION DOLLAR VERDICT

As reported by Fran Spielman in the April 18, 2006 Chicago Sun Times, a Cook County jury recently rendered a verdict of $6.74 million dollars against the City of Chicago Police Department for the wrongful imprisonment of three men for a 1997 murder they did not commit. The civil trial grew out of the 1997 murder of Sindulfo Miranda, the owner of a furniture store in the City. Miranda was kidnapped and killed by members of the Latin Kings street gang who mistakenly believed he was a drug dealer. Omar Aguirre, Edgar Duarte Santos and Robert Gavol were picked up for the crime. Two of the plaintiffs had proof they were working at the time of the crime, which was ignored, according to their attorney, former Corporation Counsel James Montgomery. In addition, although neither Aguirre or Santos spoke much English, but both allegedly provided confessions in English. The three men ultimately spent five years in prison, until 2002, when federal prosecutors received information about the actual killers, who were indicted and convicted. The City dropped charges against Aguirre, Santos and Gavol in 2002 and the sentences were vacated.

Montgomery argued that the confessions were coerced, as were supposedly corroborative witness statements. The jury apparently agreed and found the City had acted with malice and had no probable cause for the charges. Montgomery offered evidence that one of the plaintiffs lost his family, who "gave up on him" during the incarceration. Another one of the plaintiffs became estranged from his wife and a sick child during the 5 years in prison. The jury awarded $3 million each to Aguirre and Santos, and $740,000 to Gayol.

Jennifer Hoyle, a spokesman for the City of Chicago, said attorneys for the City would be filing post-trial motions and would review their options if those motions failed.

INSURANCE COMPANIES BEING PROBED ON KATRINA CLAIMS

The Chicago Tribune recently reported that Mississippi Attorney General Jim Hood has convened a grand jury to investigate whether State Farm improperly denied Hurricane Katrina claims. Hood is looking into whether State Farm tried to pressure the engineering consultants they used to alter reports about how homes were damaged or destroyed by the storm. Hood's actions come after a number of State Farm claimants had filed civil lawsuits against the insurer claiming that State Farm tried to hide that wind had been the primary cause of their losses, and pointed to flooding instead. [The claimants' policies apparently did not cover flooding-related damages]. Hood recently subpoenaed records from State Farm and a Mississippi judge allowed the insurer until May 26, 2006 to provide the documents.

And Hood is taking a look at Allstate as well. In September, 2005 he filed a civil suit againt the "Good Hands" company fighting Allstate's attempt to contest certain hurricane claims by citing certain exclusions in the relevant policies. Hood took position in that case that the language relied upon by Allstate was too vague.

MERCK TAKES A BIG HIT IN VIOXX TRIAL

On April 6, 2006, a New Jersey jury held Merck & Company responsible for the heart attack and subsequent health problems suffered by Vioxx user John McDarby. McDarby had been a Vioxx user for years, and then suffered a heart attack in his home, as well as a broken hip. McDarby alleged the the heart attack and broken hip started an irreversible decline in his health, ultimately leaving him in a wheelchair, unable to care for himself.

McDarby and his lawyers alleged that Merck, losing market share because of the advent of Celebrex, rushed Vioxx to the market, even though Merck knew the drug caused cardiovascular difficulties. And Vioxx made a lot of money for Merck - $2.5 billion in 2003 alone. But Merck had to pull it from the market in 2004 after clinical studies showed long-term users to be at increased risk for heart attacks and strokes.

The jury awarded McDarby $4.5 million in compensatory damages, finding that the company failed to adequately warn McDarby about the risk factors. In additon, the jury also awarded McDarby $9 million in punitive damages. This is the second Vioxx loss Merck has suffered at the state level. The company has also prevailed in two cases. There are nearly 10,000 additional cases still pending.

The same jury found against plaintiff Thomas Cona who had also sued Merck for a heart attack he suffered. Although the jury found Merck had failed to adequately warn Cona as well, they determined that Vioxx hadn't been a factor in his heart attack and awarded him $450 to cover his out of pocket expenses.

SUPREME COURT UPHOLDS SEXUAL HARASSMENT VERDICT

The April edition of Fortune Small Business has an interesting article on a sexual harassment case arising out of New Orleans. The plaintiff, Jennifer Arbaugh was a waitress at the Moonlight Cafe. After the owner allegedly groped her and made lewd remarks, she sued. A federal jury awarded her $40,000. The defendant appealed, and argued that the business had less than 15 employees, and therefore wasn't governed by the legislation at issue. [The article indicated that Title VII provides that companies with less than 15 employees can't be held liable for sexual harassment]. The District Court agreed, as did the Federal Appeals court. The Supreme Court however, disagreed in a February, 2006 decision. The Supreme Court held that after Moonlight had litigated the case through trial, it couldn't then take the position the claim was legally insufficient. Commentators have suggested that the defendant probably could have had the case tossed at the outset if it asserted the 15 employee provision.

FEDERAL JUDGE QUOTES ADAM SANDLER

According to a March 6, 2006 report at The Smoking Gun, a Bankruptcy judge in Texas recently quoted none other than Adam Sandler in a recent ruling. In his February 21, 2006 order, Judge Leif Clark denied defendant's motion after noting that "...the court cannot determine the substance, if any, of the Defendant's legal argument, nor can the court even ascertain the relief that the Defendant is requesting. The Defendant's motion is accordingly denied for being incomprehensible".

The Judge however, wasn't done yet. He added a footnote that read as follows:

Or, in the words of the competition judge to Adam Sandler's title character in the movie "Billy Madison,", after Billy Madison had responded to a question with an answer that sounded superficially reasonable, but lacked any substance,

Mr. Madison, what you've just said is one ofthe most insanely idiotic things I've ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

Deciphering motions like the one presented here wastes valuable chamber staff time and invites this sort of footnote.

No word on whether the movant appealed. Who says federal judges don't have a sense of humor?

BEDBUGS BACK IN THE NEWS

The Chicago Sun-Times recently reported that a Chicago woman and her husband are suing a Catskills resort for $20 million after she allegedly suffered 500 bedbug bites while staying at the hotel last summer. Ms. Leslie Fox claims that the incident occurred while she and her husband were staying at the Nevele Hotel in Ellenville, New York. The article noted that Ms. Fox discovered the bites after her third night in the hotel. Fox appeared on The Today Show shortly after the story went public and displayed a bunch of pictures presumably taken shortly after she discovered she had been bitten. The pictures showed some pretty nasty looking red lesions all over the body of Ms. Fox, who is allegedly still receiving treatment. An attorney for the hotel claimed that the property is regularly inspected by pest control companies that will certify the resort was "bug-free".

This is the second time in recent history bed bug cases have made news. In 2004 the Seventh Circuit here in Chicago upheld an unusual verdict in a bedbug case. In Mathias v. Economy Lodging (7th Circuit, 2003) the a federal jury awarded the plaintiffs $5000 in compensatory damages and $186,000 in punitive damages against the defendant. In Mathias though, there was some rather damaging evidence against the defendant. Evidence came out that bedbugs had been discovered some 2 years before plaintiffs were bitten and an exterminator had suggested fumigation, but the Economy refused. Finally, and likely most damaging, was the evidence that the defendant continued to rent the room after it had been classified as DO NOT RENT ROOM UNTIL TREATED.

BUDWEISER EMPLOYEES - BE CAREFUL!

Saw an interesting story in Jeff Ruby's The Closer column of the March, 2006 Chicago Magazine. Jeff reported on a recent year-end summary of interesting workplace events as compiled by Challenger, Gray & Christmas, a Chicago outplacement firm. The compilation, aptly entitled 2005 Most Unbelievable Workplace Events, described an unfortunate decision made by a Budweiser distributor employee in Greeley, Colorado. Seems the employee, a Mr. Ross Hopkins, was enjoying a Coors at a local establishment and was spotted by the son-in-law of his boss. The son-in-law offered to buy Hopkins a Bud, but Hopkins refused. The following Monday, Hopkins was fired. According to Hopkins lawsuit, he was advised that drinking a competitor's beer was "...putting food on the competitor's table, while we are putting food on yours." According to Ruby's article, Hopkins claimed he ordered a Bud, but the waitress mistakenly brought him a Coors. Moral of the story? If Hopkins ever buys a horse, it damn well better be a Clydesdale.

DRUMBEAT GETTING LOUDER FOR GEORGE??

As reported by Michael Sneed and Eric Herman in the February 24, 2006 Chicago Sun-Times, it appears Cardinal Francis George ignored early warning signs about Rev. Daniel McCormack. As reported in the article, a review board at the Archdiocese of Chicago advised George to remove McCormack in October of 2005. George however, failed to act on the advice and McCormack remained at St. Agatha's Parish until January of 2006 when he was charged with molesting two boys. Recently McCormack was charged with abusing another boy - in January of 2006, some three months after George received the Review Board's recommendation to remove McCormack. The spokesperson for the Cardinal, Colleen Dolan admitted that George had received "interim advice" to remove McCormack, but noted that "There was no formal recommendation." The Department of Children and Family Services has also indicated it is looking into additional allegations against the priest.

PARKINSON'S DRUG ALLEGED TO CAUSE COMPULSIVE BEHAVIOR

Max Wells, retired doctor, filed a lawsuit on friday, February 17th, against drug manufacturer Glaxo Smith Kline and seven casinos after gambling away $14 million. Wells' complaint alleges that Glaxo Smith Kline failed to warn him that the Parkinson's drug he was taking could lead to compulsive behavior and that the Casinos knew of Mayo Clinic studies that documented the danger in a study of 11 patients taking the drug.


Class Action Lawsuits filed as a result of drug's effects.

National Geographic publishes its thoughts on the subject.

TROOPER'S WIDOW SUES MAKERS OF COLD DRUG

Saw an interesting note in the January-February 2006 Vested Interest, the Illinois Trial Lawyers Newsletter. The note described a lawsuit recently filed by the widow of an Oklahoma state trooper who was gunned down by someone high on methamphetamine. The widow filed suit against several makers and sellers of the drug pseudoephedrine. The lawsuit appears to allege that the makers and sellers of the drug were aware the meth addicts were buying pseudoephedrine, not for medicinal purposes, but to extract certain ingredients that would allow them to make, and presumably get high on meth. The widow is also alleging that the defendant companies[including Pfizer, Wal-Mart and Walgreens] knew how to make pseudoephedrine in such a manner that drug addicts couldn't extract the meth ingredients. Presumably the widow has evidence[probably from the criminal trial] that the shooter purchased the medication, extracted the necessary ingredients, got high and then killed her husband. Even if that is the case, the drug manufacturers will certainly argue that the risk of methheads buying a cold medication, altering it, and then cooking up meth wasn't foreseeable - and as a result, they wouldn't have any duty to prevent it. It will be interesting to see if the defendants did in fact have an alternative way to make the drug where vital ingredients couldn't be extracted. If so, that would suggest they were on notice that addicts were using the drug for alternative purposes. That fact may be critical in rebutting the inevitable defense that the makers couldn't forsee this odd string of events taking place. In light of the way meth has taken hold in the Midwest, for some time now, perhaps the defendants did know something like this was possible.

JURY AWARDS MILLIONS AGAINST CHICAGO P.D.

As reported in the Chicago Tribune on Saturday, February 18, 2006, a Cook County jury returned a $6.74 million dollar verdict against the Chicago Police Department for using excessive force and coercion to wrongfully obtain murder convictions against three men that were later vacated. The men, Omar de Jesus Aquirre, 37, Savier Duarte Santos, 33 and Robert Gayol, 42, spent years in custody or prison before being freed in 2002. They alleged that Chicago Police picked them up for questioning in November of 1997 after the murder of Southwest Side furniture store owner. The plaintiffs alleged they were physically abused by the police, who also concocted fake stories to secure their convictions.

The jury awared $3 million to both Aquirre and Santos. Before his sentence was vacated, Aquirre was serving a 55 year sentence. Gayol had been sentenced to life. Santos had cooled his heels in custody for 4 years and then served only six months of a 12 year sentence, pursuant to a deal he had cut with prosecutors. The lawyers representing the three men had requested an award of $21.5 million.

ILLINOIS CITIZENS PREVAIL IN RIGHT TO KNOW CASE

Congratulation to The Southern Illinoisan newspaper for sticking to their guns in a lengthy public health fight they have been waging with the Illinos Department of Public Health[IDPH]. After 8 years of litigation and appeals, the Illinois Supreme Court recently ruled that the IDPH had to fork over certain public health records they had been withholding. The newspaper had been fighting to obtain IDPH data regarding neuroblastoma, a rare childhood cancer. The Supreme Court ruled that the IDPH must comply with the newspaper's Freedom of Information Request that would help identify "clusters" of cancer cases. The original request was filed shortly after a civil lawsuit was filed by several families in Taylorville, Illinois. The families suspected that the cancer developed by their children resulted from coal tar at a nearby utility plant. The families had shown a link between the cancers and the contaminants, and a monetary settlement was reached. The paper wanted to find out if children in others areas of the state were at also at risk from similar contaminants or carcinogens.

So the Southern Illinoisan filed a Freedom of Information Request for the data in 1997. There was no request for specific names. Instead, the paper was looking for the type of cancer, date of diagnosis and zip code of all cancer patient diagnosed since1985. Seems reasonable enought. But the IDPH didn't think so. The Department denied the request, alleging the data could be manipulated to identify the patients. To prove their point, the Department offered evidence that a professor of Computer Science could use the information requested to determine the names of most of the patients. [It should be noted that the Professor had a Ph.D in computer science, used sophisticated search techniques and expensive software to get the names]. The newspaper filed suit in 1998, seeking court intervention to get the records. The trial court ruled for the paper, but the IDPH fought the ruling, and the Appellate Court overturned the lower court's decision. The case was sent back to the lower court. And again, in 2002, the trial court ordered the Department to turn over the data. In fact, the trial judge, William Schwartz, ordered the agency to pay the paper's legal fees, because he found the Department's conduct was "obstreperous". But the IDPH wasn't done. They took the fight to the Illinois Supreme Court. Thankfully the Supreme Court ordered that the records were to be turned over. But the IDPH seemingly hasn't given up. A spokesman for the IDPH was quoted as saying "We are very disappointed and wer are exploring all options" to avoid release of the data, including legislation.

Makes you wonder why the IDPH would fight so hard to keep these records confidential. Wonder what they are so afraid of...

CHICAGO TRIBUNE BLASTS IMESCH

The February 9 Chicago Tribune had a great editorial today regarding the utter failings of Joliet Bishop Joseph Imesch after being confronted with pretty concrete evidence that priests in his archdiocese were sexually abusing young people. The editorial actually quotes deposition testimony from Imesch that was unsealed last week. At one point, Imesch was asked about a report to diocesan officials in 1985 that a Woodridge priest might be having a sexual relationship with a 14 year old girl. Imesch was asked if he contacted police. His response? "I would not do that...There is no verification. There is no hard evidence this was happening. And I'm not going to go say, Hey police, go check on my priest." Later, Imesch testified: "I'm not going to go to the police and say that I've got a suspicion that one of my priests is dating a young girl. I'm not going to do that." Why not? A sexual relationship between an adult man and a child is illegal - Imesch surely knew that, but did nothing.

Another bit of testimony that turns the stomach - came about when the lawyer discussed the victim's age...
Q: She was a 14 year old girl.
A: We didn't know that at the time.
Q: You didn't ask.
A: We didn't know who to ask.
I have an idea - how about the priest who is carrying on with the child? A couple of phone calls could have confirmed the victim's age. But Imesch didn't do a thing. Thankfully someone else[with some character]did go to the police and the priest involved was ultimately convicted of criminal sexual abuse.

There was additional questioning about another priest who was accused of abusing young boys in Lombard. Imesch testified the priest acknowledged skinny-dipping with the boys and playing games with them while nude. Imesch simply moved the priest to another parish where he was also accused of abuse. When questioned about the credibility of the Lombard allegations, Imesch responded: "Well, I think what happened happened. It was not considered a crime or a criminal activity so there was not reason for me not to transfer him." The Bishop of Joliet it seems, thinks it is perfectly acceptable for a grown man to play in the nude with young boys.

To add insult to injury, Imesch released a letter last weekend noting that the incidents occurred "...before psychologists recognized that behavior of that kind was indicative of a severe problem..." What a crock. He didn't know that these incidents indicated problems? He is either remarkably stupid, or simply lying in a misguided effort to protect the archidocese from the inevitable legal fallout. Imesch also bemoaned the fact that the media is portraying him as someone who doesn't care about the safety of children. Having read the excerpts above, what else could you conclude about this creep?

MICHAEL B. HYMAN ARTICLE IN CRAIN'S

For those of you who haven't heard, the American Tort Reform Association[ATRA] recently announced that Cook County, Illinois[the county where Chicago is located] is a "judicial hellhole". Michael Hyman, a Chicago attorney, wrote a nice piece recently in Crain's Chicago Business, explaining why ATRA is all wet. First, in calendar year 2004, jury verdicts in Cook County were 51% for plaintiffs and 49% for defendants - hardly the breakdown you you expect in a "judicial hellhole". [Frankly those numbers suprised me - Cook County has always been regarded as a friendlier forum than some of the surrounding counties. But these numbers suggest, to me anyway, that even Cook County juries are getting more conservative]. The 2005 numbers are apparently also split down the middle.

Hyman also pointed out that in the ATRA article, the authors focused on four cases that Cook County judges kept in Cook, that in ATRA's opinion, should have been transferred to other counties. What ATRA failed to mention[shockingly] was that the cases were decided prior to 2003, when the Illinois Supreme Court enacted a major change in the relevant caselaw. Hyman closed his article by noting that ATRA is nothing more than a well-financed special interest group trying to manipulate the jury system to serve the interests of the corporate world. Well done Michael.

KENNETH P. NOLAN ARTICLE

For those of you who get Litigation, the ABA Quarterly publication, don't miss Kenneth P. Nolan's Sidebar, in the Spring issue, starting on page 57. A short, funny, easy read in which Mr. Nolan explains just why he became a lawyer. In the course of the article he offers a number of simple, practical things young lawyers[and perhaps even some not-so-young laywers] can do to become great trial lawyers. I would link to it if I could, but I haven't figured out just how the hell to do that just yet.

BURGER KING CASE GOES TO ILLINOIS SUPREME COURT

The Illinois Supreme Court will decide if a fast food restuarant has a duty to build barricades around those parts of the restuarant near the parking area. On January 12, 2006, the Supreme Court heard oral arguments growing out of a tragic incident at a Rockford Burger King in 2001. At that time Detroy Marshall II, a patron seated in the restuarant dining area, was killed when a driver lost control of her car in the Burger King parking lot, and crashed into the building. Marshall was crushed by the car. The case had been thrown out at the trial level, but reinstated on appeal. Marshall's attorneys argue that it is reasonable to hold Burger King liable because it should anticipate that cars will have sudden mechanical problems in the parking lot, causing contact with the restuarant structure. The defense response is that this particular circumstance was impossible to anticipate or prevent. A group of businesses filed a "friend of the court" brief in which they argued that holding Burger King liable would alter the business landscape of Illinois by requiring business owners to erect barriers on their property to prevent similar occurrences. My prediction? The Court holds that Burger King does not have any duty to install barricades to protect their customers.

ITS GOOD TO BE AN ISMIE BIGWIG

The drumbeat on medical malpractice reform was relentless. Everyday it seemed like there was another story in the paper about how doctors were fleeing the state because medical malpractice suits had driven up premiums. And there were countless stories about how much the insurance companies for the doctors were paying out in runaway verdicts. So the doctors got to push their "tort reform package" where pain and suffering damages were limited.

So it was interesting to see a Mike Fitzgerald's January 1, 2006 article in the Belleville New Democrat about how ISMIE cuts back in these challenging times. You would expect that with all the settlements and verdicts they were allegedly paying out, there would be a freeze on salaries. Not quite. Let's take ISMIE CEO Larry Lerner for example. Despite all stories in the media, ISMIE actually found some money to give him a raise. The raise he got in 2004 brought his annual salary to nearly $1 million dollars. But that's not all. He also got a low interest $995,000 mortgage on his 4800 square foot home in a fashionable North Shore neighborhood.

And then there is Don Udstuen, a former Illinois State Medical Society lobbyist. He got nearly $5 million dollars in deferred compensation right about the time he quit his post. Yeah, $5 million dollars. They found some money to pay him too. And a word or two about Don. This is the very same "Dr. Don" who was a member of former Governor George Ryan's "kitchen cabinet". As an esteemed member of that group, he accepted kickbacks from people who got state contracts through his influence. Mr. Udstuen also pled guilty to federal tax charges growing out of monies he secretly stashed away and lied about while a member of Metra's board. [Incidentally, it should also be noted that when Dr. Don was in trouble with the feds he agreed to cooperate and wear a wire so he could implicate his long-time friend Governor Ryan. Quite a guy.]

The conclusion? Times are always good if you are an ISMIE bigshot.

IN MARYLAND, MOONING IS OK

In the interests of discussing ground-breaking legal developments, have to share this story I saw the other day in the Chicago Sun-Times. A Montgomery County, Maryland judge recently ruled that the act of mooning[dropping one's pants and flashing one's buttocks]is not illegal. This landmark ruling grows out of an apparent on-going dispute between two Maryland neighbors, Raymond Hugh NcNealey and Nanette Vonfeldt. McNealey and Vonfeldt had a heated argument the night before the "incident". The following morning, as Vonfeldt walked out of her apartment, she ran into McNealey. Words were exchanged and then Nealey mooned Vonfeldt and her eight year old daughter. [Just a quick aside - what kind of loser moons a little girl?] McNealey was charged with indecent exposure and convicted.

McNealey appealed the conviction, arguing that the state law in issue prohibited the display of "private parts" but not the buttocks. His attorneys even cited a 1983 United States Supreme Court ruling holding that indecent exposure only related to a person's genitals. On appeal, Judge John W. Debelius III ruled that although McNealey's actions were "disgusting" and "demeaning", he wasn't guilty of indecent exposure and overruled the lower court. Interestingly, Debelius noted in his opinion that "If exposure of half of the buttock constituted indecent exposure, any woman wearing a thong at the beach at Ocean City would be guilty." True enough. But those young ladies are simply enjoying the beach. Sounds like McNealey was using his ass in an effort to show his disdain with Ms. Vonfeldt. So the key issue goes to the mooner's intent But I digress...The thing that really caught my eye about this piece was the quote from McNealey's attorney, James Maxwell, who noted the ruling should "...bring comfort to all beachgoers and plumbers" in the state of Maryland.

NEW JERSEY COURT: EMPLOYER HAS DUTY TO STOP PORN SURFING

According to a recent article in the ABA JOURNAL eREPORT, the Superior Court of New Jersey, Appellate Division, recently ruled that when an employer has actual or imputed knowledge that an employee is accessing pornography at work, the company has a duty to investigate and stop the activity. The case, Doe v. XYC Corp. involved an rather ugly factual situation. An employee of the defendant company was viewing pornographic websites while at work. Supervisors became aware, had a talk with the employee, and instructed him to stop visiting the porn sites. Due to company privacy rules, there wasn't much follow-up after the initial discussion. Sadly, sometime thereafter, the worker took pornagraphic images of his 10 year old stepdaughter and submitted them to a child porn site. The child's mom sued, seeking to have the employer held responsible for the subsequent sexual abuse. She argued that had the company taken more agressive action regarding the inappropriate sites, the abuse might have been prevented. Tough sell. And, not suprisingly, the trial court granted summary judgment, saying that the abuse had taken place inside the home, which was not under the employer's control. In addition, the trial court felt that the employer acted reasonably by instructing the worker to stay away from the porn sites. Mom wasn't satisfied and appealed.

And mom must have known something because the Appellate Court reversed. The Court ruled the company knew or should have known that the employee was looking at porn. The Court went on to note that once they knew about this guy's viewing habits, they should have gotten the police involved or terminated him. But the Court didn't completely endorse plaintiff's case. The opinion indicated that the Appellate Court was troubled by the proximate cause issue. The case was remanded back to the trial court, where the plaintiff, according to the Appellate Court, must prove that the sexual abuse would have been averted if the employer had stopped the porn-viewing at work. Just how precisely the plaintiff can prove that is beyond me. Plaintiff may have won this particular battle, but will likely lose the war.

NEW ILLINOIS MEDICAL ERROR REPORTING LAW

According to recently-passed Illinois legislation, Illinois health care facilities[hospitals and ambulatory surgery facilities]will soon be required to report "Adverse Health Care Events to public health officials. The new law, entitled Illinois Adverse Health Care Events Reporting Law of 2005 was passed in June, 2005. The law provides that after an adverse health event[otherwise known as medical malpractice]occurs, the facility will be required to report it to the Department of Public Health. The health care facility will also be required to perform a cause analysis of the event, file a corrective action plan with the state, or explain why no corrective action will be necessary.

The health care facilities will have some time to get their houses in order. The Health Department has until July, 2007 to set up the system. In addition the Department will be allowed to test it for six months. Health care facilities will then be given 30 days notice that the system is operational. The law will become effective January 1, 2008 and health care facilities will be required to begin making the reports on that date.

In addition, the Health Department will be required to publish an annual report setting out, by institution, the adverse events reported, the cause analyses and corrective action plans. The identity of the patients will not be revealed.

And the new law won't result in low hanging fruit for medical malpractice lawyers. The legislation provides that the event, analysis and corrective plans shall not be available to the public and shall not be discoverable in civil, criminal or administrative proceedings.

INTELLIGENT DESIGN TAKES IT ON THE CHIN

I was delighted to read the other day that the right wing Intelligent Design[ID] nutbags took one on the chin recently in a Pennsylvania federal court. On Tuesday, December 20, 2005, United States District Judge John E. Jones ruled that the attempt of the Dover School Board to insert ID into the science curriculum violated the constitutional separation of church and state. The ruling was viewed as a major blow to the ID movement, which holds that living organisms are so complex that they must have been created by a higher power. And it was nice to see that Judge Jones didn't pull any punches. He described the proposed Dover policy[where they would be instructed that Darwin's theory of evolution "is not fact" and "has gaps"] as one of "breathtaking inanity". In addition his opinion also noted that the true motive of board members pushing ID wasn't educational, but instead an attempt to promote religion.

Jones[who is a Republican]went on to note that the six week trial yielded "overwhelming evidence" establishing that ID is in fact a "...religious view, a mere relabeling of creationism". The judge wrote that the students, parents and teachers of the Dover Area School District deserved better than to be dragged into a legal battle over ID, which was an utter waste of resources. The School system said it would not appeal because [shockingly] the board members who had been pushing ID had been shown the door in the last election.

I certainly hope that no one in the Judge's family is a CIA operative. If so, they can expect to be outed in the very near future.

HOLIDAY BREAK IS OVER

Back to work and the keyboard after the Holidays....

Couple of noteworthy items caught my attention over the last couple of weeks...First, a family claiming toxic mold in their home caused brain damage to their infant reached a settlement against a lumber company and 16 other defendants. The parents alleged the baby became ill due to mold on framing studs that had developed because the lumber had been improperly stored. The defendant lumber company settled the day after the trial court had barred 10 of 17 defense experts. The court found that defense counsel was late in his disclosure and then backdated court documents to cover up the tardy filing. Oops. Bad day at the office for defense counsel. (Source: December, 2005 issue of VESTED INTEREST, Newsletter for the Illinois Trial Lawyers Association).

Also, on Monday, December 12, 2005 a federal judge declared a mistrial in the first federal lawsuit against Merck for injuries allegedly attributable to Vioxx. A nine person jury was unable to come to a unanimous verdict whether Vioxx had contributed to the 2001 heart attack death of Richard Irvin, a Florida man. The jury had been deliberating for several days. Irvin had been taking the drug for a month prior to his death for back pain. According to the Reuters Online, Merck faces over 7000 other lawsuits claiming that it had hidden data for years showing that there was a link between the drug and heart attacks and strokes. In August, a Texas jury found Merck liable in a wrongful death case, while a New Jersey trial had found for Merck in another death case. Merch pulled the drug from the market in September of 2004.