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.