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 Scheff for some assistance in getting Bock's twin sons withdrawn from the Costa Rican boarding school in which Bock's ex-husband had placed them.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.