1 PRESERVE THE RIGHT TO TRIAL BY JURY Illinois Trial Lawyers Association JUSTICE FOR ALL Volume 3, Number 1 From the Illinois Supreme Court The Illinois Supreme Court handed down two key decisions on September 20, 2012, Choate v. Indiana Harbor Belt Railroad Company and Carter v. SSC Odin Operating Company. Details: Choate v. Indiana Harbor Belt Railroad Company is the freight train injury case. 12 year old trespasser hopped on slow moving freight train, fell, lost his leg, won his trial but lost his appeal because the danger he voluntarily confronted was obvious, negating the railroad s duty. Carter v. SSC Odin Operating Company is the nursing home-arbitration agreement case. Patient signed arbitration agreement then died. Arbitration agreement can be used as a shield against a Survival Act claim but cannot be used as a defense to a Wrongful Death Act claim. The full opinions may be found on the ITLA website under Member Services/Amicus News. Mark your calendars Update & Review Seminar Monday, October 8 Workers Compensation Seminar Saturday, November 3 Oak Brook Hills Marriott Resort, Oak Brook Medical Malpractice Seminar Saturday, December 8 Travel Seminar Friday & Saturday, March 1 & 2 Wynn Las Vegas Justice for All 1
2 TORT BRIEFS Settlement reached after fall results in ankle fracture On February 4, 2011, after a large snowstorm, G s Plowing plowed a business parking lot adjacent to a small strip mall operated by the strip mall owner condo association. There was no written contract between G s and the Condo Association. Before dawn, a 45-year-old woman was walking on a public sidewalk on her way to open a local restaurant for early customers. She found the public sidewalk abutting the parking lot partially blocked with snow. Because of a small ravine along Route 83, she chose to climb over the snow, when she slipped and fell on the sidewalk, fracturing her ankle. She underwent internal fixation and incurred $89,000 in medical expenses. A settlement was reached where the Condo owner agreed to pay $125,000 and G s Trucking agreed to pay policy limits of $100,000 from G s auto policy. Record-high settlement reached in slip-and-fall lawsuit The estate of a 96-year-old man, whose health declined after he broke his hip in a slip and fall, settled a lawsuit against a property manager and condo association for $1.375 million, a record high in Illinois for cases involving a decedent in their 90s. Erving Letwin was leaving his residence with his wife when he fell on the freshly mopped floor of his lobby. He suffered a hip fracture and underwent surgery three days later. Thir- PRESERVE THE RIGHT TO TRIAL BY JURY teen days after surgery, Letwin survived a stroke. In his suit, Letwin alleged the surveillance video shows a building maintenance worker mopping the floor shortly before Letwin entered the lobby. The worker walked away from the area without placing a warning sign on the floor. He contended that failure to place a warning sign on the floor was the proximate cause of the fall his condition deteriorated until he died in a nursing home June 19. (Chicago Daily Law Bulletin September 10, 2012) Jury finds circumstantial evidence enough A Cook County jury awarded $3.1 million to a man who alleged in a lawsuit, based on circumstantial evidence, that a school bus fatally struck his wife in a hit-and-run accident. The 40-year-old woman was found dead on the street with no witnesses to the accident. Surveillance video from an ATM camera two blocks away from the scene of her death captured images of a school bus shortly after the alleged accident Police investigated the bus and found no damage and no evidence that it hit anybody. The woman s husband sued Positive Connections Inc., the bus company and alleged that a bus struck her, dragged her 500 feet and drove away. Lawyers for her husband couldn t find any witnesses who saw an accident, but they found somebody who saw a school bus leave the area after the time of the alleged accident The bus company offered $500,000 to settle the case before the trial and also offered a $1.5 million settlement after closing arguments. (Chicago Daily Law Bulletin September 14, 2012) Hospital agrees to settlement in med-mal case Advocate BroMenn Medical Center in Normal, and Dr. Anthony R. Horinek agreed to pay $2 million to settle a lawsuit filed by the family of a 66-yearold who suffered permanent paralysis in 2007 during his hospital stay. Henry Etter was admitted to the hospital for treatment of nephrotic syndrome, a kidney disorder While in the hospital, Etter developed weakness in his upper and lower extremities. While his doctor ordered a neurological consultation, by the time that occurred late the following day, Etter already suffered from a spinal infection and permanent paralysis in his lower extremities. The last two years of his life were lived in constant pain. Before his paralysis, Etter often biked 20 to 30 miles every day. Etter s wife died soon after his death. The settlement will be split among his five surviving daughters. (Chicago Daily Law Bulletin September 14, 2012) Settlement reached in 2003 Metra derailment lawsuit Metra and the family of a Plainfield woman injured in the derailment of a Rock Island Line train have agreed to settle a personal injury lawsuit for $1.8 million. The 54-year-old woman suffered multiple injuries, has undergone two lower-back surgeries, continues to suffer debilitating back pain, and will need more surgeries. Her attorney said the accident could have been avoided with the installation of a safety system called positive train control. This system would override human error, which allowed the Metra train to reach a 2 Justice for All
3 TORT BRIEFS continued PRESERVE THE RIGHT TO TRIAL BY JURY speed of 68 mph, instead of the maximum 10 mph allowed for the intersection of the crash. Metra says it is fully committed to installing positive train control by a 2015 federally mandated deadline. (Chicago Tribune September 19, 2012) Settlement reached in death of child A $1 million settlement was reached with the hospitals involved in the negligent care of an 18-month-old boy who died when an untreated middle ear infection progressed into a fatal case of meningitis. His mother took the child to La Ribida Children s Hospital emergency room where he was diagnosed with an outer ear infection. By the next day, her son s condition had worsened, and she took him to South Shore Hospital. His conditioned worsened during the four-hour wait, and he went into respiratory arrest. He was then transferred to University of Chicago Medical Center where he died that evening. During discovery, it was discovered that South Shore altered the child s medical records to make it appear that he was not in critical condition while he waited for treatment. Appeals court rules age discrimination not proven in Boeing sale case A federal appeals court ruled that former employees of The Boeing Co. failed to demonstrate a pattern of age discrimination in the wake of the 2005 sale of its commercial aircraft business in Kansas and Oklahoma Ninety former Boeing workers sued in December 2005 claiming they lost their jobs because of their age when the Chicago-based aerospace manufacturer sold operations in Wichita, Tulsa, Okla., and McAlester, Okla., to Onex Corp. However, the 10th U.S. Circuit Court of Appeals sided in favor of the aerospace firms, writing that although the employees have provided evidence that discrimination occurred during Boeing s divestiture of the Division, we agree with the district court that the Employees cannot prove a pattern or practice of age discrimination. (AP August 28, 2012) California court mistakenly posts settlement documents on pipeline explosion case A California court has mistakenly posted secret Pacific Gas & Electric Co. settlement documents showing it agreed to pay more than $2 million to a teenager burned in the 2010 San Bruno gas pipeline explosion that killed eight people and destroyed dozens of homes. The posting provides the first glimpse at any of the settlements the utility has reached in lawsuits filed by victims of the blast. The details of all of the settlements PG&E has reached with more than a quarter of the roughly 400 plaintiffs have previously been confidential. PG&E has not said whether the disclosure of these documents would have any effect on other civil cases. (AP August 31, 2012) Janssen agrees to $181 million settlement in drug marketing case Janssen Pharmaceuticals Inc. and parent company Johnson & Johnson announced a $181 million settlement with 36 states and the District of Columbia over charges of marketing anti-psychotic drugs for non-approved uses. New York Attorney General Eric Schneiderman has argued that Janssen engaged in deceptive practices from 1998 to at least 2004 in the marketing of the drugs Risperdal, Risperdal Consta, Risperdal M-Tab and Invega. For example, Janssen is accused of promoting Risperdal, which is used to treat schizophrenia and other mental illnesses, for nonapproved uses including dementia, anger management and anxiety. (AP August 31, 2012) J&J settles Risperidone suit on opening day Johnson & Johnson settled a lawsuit on the first day of a trial over claims its antipsychotic drug Risperdal (risperidone) caused a male plaintiff to grow breast tissue, one of his lawyers told a state judge in Philadelphia, but he did not provide details of the settlement. The case, Banks v. Janssen Pharmaceuticals, Philadelphia Court of Common Pleas, January Term 2010, Justice for All 3
4 PRESERVE THE RIGHT TO TRIAL BY JURY TORT BRIEFS continued No , was the first of about 130 suits to go to trial on claims that Risperdal caused boys to grow breasts. Overall, there are about 420 suits pending against J&J and its Janssen unit that allege personal injuries caused by Risperdal, according to an August SEC filing. The FDA approved Risperdal initially, for psychotic disorders including schizophrenia in 1993 but it was later approved for other uses. (Bloomberg News September 11, 2012) New Mexico settles lawsuit involving state health department whistleblower The state of New Mexico has agreed to settle a lawsuit with a whistleblower who accused the New Mexico Department of Health of nepotism and financial irregularities Under a settlement agreement made public last week, former state Department of Health manager Diane Moore received $225,000 and agreed to resign and never seek reinstatement. She filed a whistleblower lawsuit against the agency in 2010, but continued working there as the employees she complained about filed internal grievances against her. (AP September 6, 2012) 43-year-old lawsuit may come to an end When two railroads merged in 1968, workers were promised they would keep the seniority, pay and health-care benefits they had with their old companies, but they allegedly lost everything and sued Penn Central in 1969 If Penn Central paid the workers in 1968, it would have cost the company $564,820 Compounding interest has pushed the amount to $14.7 million today. Forty-three years after 32 workers filed suit, only two are surviving, and Philadelphia U.S. District Judge Harvey Bartle ruled American Premier Underwriters Inc., which now holds many of the former railroad s assets, must pay the workers. (Chicago Daily Law Bulletin September 17, 2012) The 7th Amendment Advocate Founder of The 7th Amendment Advocate, Randy Cochran, is making an impact in Washington, D.C. on 7th Amendment issues. His website is found at What s new under Member Services at My Account Update your membership information. Have you moved? Changed firms? Changed addresses? Click on My Account to keep your information current. Search for another ITLA member. Click on Member Search. You can search for ITLA members by name, city or county. Pay your dues. By clicking on Make a payment you can save yourself a postage stamp and avoid any disruptions in your ITLA benefits, like access to the listserv. Expert Testimony Exchange. Need to find prior transcripts of an expert? Check the ITLA Expert Testimony Exchange. The complete list is available online. Listserv Access. Send an to the listserv directly from this link. Publications Trial Journal magazine. Articles in the current issue of the Trial Journal as well as issues all the way back to Summer 2001 are available on the ITLA website. If you are unable to locate your username and password, call the ITLA office at or Angela at 4 Justice for All
5 NATIONAL NEWS Holderman says court faces crisis Federal trial court may shut its door in Chicago and Rockford one business day a week if Congress cannot come up with a budget by January 2. Such a situation would place both the justice system and the public in danger, said Chief U.S. District Judge James F. Holderman The Budget Control Act of 2011 requires sesquestration automatic, acrossthe-board budget cuts of $1.2 trillion over 10 years if Congress so-call Super Committee does not agree to additional reductions Shutting down the court for 39 consecutive business days was not a viable option. So court officials are considering halting operations every Wednesday from January 2 through the end of September Employees, 293 in Chicago and 13 in Rockford, would be furloughed on those days. (Chicago Daily Law Bulletin September 10, 2012) Over 17% of nursing-home patients had antipsychotics doses exceeding recommendations A national initiative launched at the end of May has set an ambitious goal of reducing the use of antipsychotic drugs for nursing home residents by 15 percent by the end of this year. It s called the Partnership to Improve Dementia Care in Nursing Homes and is being led by the Centers for Medicare and Medicaid Services (CMS). In 2010, according to CMS data, more than 17 percent of nursing-home patients had daily doses of antipsychotic drugs exceeding recommended levels, according to a CMS news release. (Baton Rouge Advocate August 29, 2012) PRESERVE THE RIGHT TO TRIAL BY JURY AHCA warns nursing home documents may contain arbitration agreements Shots blog runs the Kaiser Health News report from Monday, which reported on the hidden risks of signing an arbitration agreement along with other nursing home admissions documents. In the blog post, AHCA spokesman Greg Crist points out that even if you have signed the agreement, many contain an opt-out provision allowing a family to back out within 30 days. Crist says, That gives the family time to weigh the agreement and later go back and withdraw their agreement. (NPR September 19, 2012) AN URGENT CALL to make our healthcare more transparent, more democratic, and safer for patients In Unaccountable, Dr. Marty Makary argues that patients blindly walk into a marketplace they can t study or evaluate. Readers will learn the shocking truth about the wild west of modern medicine, including its hazards and its heroes. Why are medical errors now the fifth leading cause of death in America? Why do some prestigious hospitals have complication rates five times higher than others? Why are 20-30% of all medications and procedures unnecessary, according to a new study? How do you find the best medical care? Today, more than ever, doctors and nurses describe a corporatization of healthcare by executives increasingly removed from the front lines of patient care-a detachment parallel to that of large bank executives before the financial collapse. The only difference is that, instead of a onetime taxpayer bailout for the banks, healthcare is being bailed out every day. The personal advice and broader reforms Dr. Makary lays out are neither impractical nor partisan. They are common sense. With thousands of lives at stake every year, and a broken system that is burdening families, businesses and our national debt, we need the fresh new ideas this book provides. Now available for pre-order, wherever books are sold. Watch the video trailer vimeo.com/ Expert Testimony Exchange ITLA has over 8,750 deposition transcripts accessible to ITLA members. PLEASE remember to complete the Expert Testimony Exchange form with each transcript you submit. This provides us information that can be shared with other members when inquiring about a transcript. The form is available under the Member Services tab of the website. Call or Audra at to find out if we have a valuable transcript for your next case or check the ITLA website for a complete list available under Member Services. Justice for All 5
6 PRESERVE THE RIGHT TO TRIAL BY JURY What are YOUR ITLA dues worth? Have you stopped to consider the value of your ITLA dues? Listserv: An discussion exchange among members and one of our most popular member benefits. Educational CLE Programs: Reduced rates for comprehensive education programs and webinars. Educational Materials: Our seminar course handbooks and CD s offer you educational advancement. Trial Journal magazine / Vested Interest & Justice for All newsletters: Timely articles and news. Legislative Representation: While members and non-members benefit from legislative advocacy, members receive updates and education on changes in the law. Expert Testimony Exchange: Deposition transcripts of over 8,000 experts. Amicus Involvement: Support for members with significant cases. Brief Bank: Reference that saves you hours of research time. Conference Room: Space for Meetings and depositions at the ITLA office. Membership Directory: Updated annually to network with members for information and advice. Need another reason to support ITLA? Here s what members are saying. Valerie Harris Adler s firm beat summary judgment in a construction negligence case in Winnebago County, despite the Second District s cases against them. Her credit: the thorough analysis and great research a speaker provided at the 2010 Update & Review Seminar. Another reminder of how valuable and practical ITLA seminars are. When Fred Benjamin had an arbitration with a popular defendant physician, he called ITLA. The ITLA Dep Bank is amazing. They had over 25 of his deps and tax returns. When members can t lay their hands on information quickly enough, they turn to the ITLA listserv. According to Douglas Gill The privilege of belonging to the ITLA listserv alone makes the ITLA dues worth every cent. Got a question? Need assistance? Call the ITLA office today Justice for All
7 PRESERVE THE RIGHT TO TRIAL BY JURY AAJ UPDATE The House Energy and Commerce Committee voted on the SMART Act [H.R. 1063] September 20th and amended the language of the original bill--improving it over the version that was voted on in the subcommittee. The Congressional Budget Office anticipates the bill as drafted will either be cost neutral or a slight revenue raiser. As you know, the current political climate in Congress makes it nearly impossible to move bills that are not cost neutral. In particular, AAJ Public Affairs has fought hard to prevent lawyers and clients from being harassed by CMS. We know that CMS has come back to many of you and your clients--in some cases after 10 years or more--to ask for additional money. HR the Strengthening Medicare and Repaying Taxpayers Act of 2011, or SMART Act, is designed to bring finality and certainty to your clients. In addition, the SMART Act will simplify the current online portal process for calculating MSP reimbursement. An improved online portal will help you receive a reliable final reimbursement number that you can take to settlement. Voting on this bill in committee was one of the last pieces of business House members attended to before adjourning until after Election Day, and it could very well be among the first pieces of legislation to move after they return. We will continue to keep you updated. Best Regards, Linda Lipsen Welcome New ITLA Members Stephen M. Blecha, Oak Park John E. Botti, Oak Brook Brandon E. Brown, Chicago Jeff R. Brown, Bloomington Robert A. Cohen, Chicago Gia M. Conti, Chicago Debra D. Crane, Chicago Lawrence Joseph Disparti, Chicago Lauren M. Dunne, Chicago Adam R. Durkin, Elmwood Park Lauren C. Elliott, Chicago Daniel Howard Ember, Chicago Robert Ennis, Chicago Jaclyn E. Fortini, Chicago John S. Fotopoulos, Orland Park Stacy F. Friedland, Chicago Richard R. Gordon, Chicago Matthew Howeth, Chicago Eric D. Jones, Chicago Samantha Kavathas, Libertyville Rob L. Kohen, Chicago Marta M. Kowalczyk, Arlington Heights Jason W. Lee, Chicago Wayne H. Madsen, Chicago Bruno R. Marasso, Chicago Katherine E. Meaker, Decatur Catherine J. Merrill, Lake Bluff Andrew G. Mundwiller, St. Louis Andrew S. Murrie, Edwardsville Terrance M. Nofsinger, Chicago James R. Noonan, Danville Megan S. O Connor, Chicago Katelyn T. Ofenloch, Chicago Jaime L. Padgett, Chicago Nathan E. Polum, Chicago Kristofer S. Riddle, Chicago Allyson M. Romani, Glen Carbon Michael H. Ruder, Chicago Keenan J. Saulter, Chicago Cari F. Silverman, Chicago Nicole F. Sommerfeld, Highland Park Jenna M. Steffy, Chicago Steven A. Stein, Wheeling Lindsey S. Strom, Chicago Katherine A. Twardak, Chicago Blake M. Vance, Oak Park Charles R. Winkler, North Riverside Kristen D. Zeman, Chicago Do you know someone who would benefit from an ITLA membership? Help them become a member TODAY! Help us build a stronger organization for the future. May 23, September 24, 2012 Justice for All 7
8 ITLA Calendar of Events Monday, October 8 Update & Review Seminar Saturday, November 3 Workers Compensation Seminar Oak Brook Hills Marriott Resort, Oak Brook Friday, December 7 Board of Managers Meeting PRESERVE THE RIGHT TO TRIAL BY JURY Illinois Trial Lawyers Association 401 West Edwards Street Springfield, IL Return Service Requested PRSRTD FIRST CLASS U.S. Postage PAID SPRINGFIELDIL Permit No. 827 Saturday, December 8 Medical Malpractice Seminar Monday, February 18 Seminar Fri & Sat, March 1 & 2 Travel Seminar Wynn Las Vegas Saturday, April 6 Seminar Oak Brook Hills Marriott Resort, Oak Brook Friday, May 3 Ethics Seminar Oak Brook Hills Marriott Resort, Oak Brook Friday, June 7 41st Annual Convention Golf Outing Annual Membership Meeting Annual Banquet & Dinner/Dance Oak Brook Hills Marriott Resort, Oak Brook Illinois Trial Lawyers Association Professionals & Businesses for Justice Vendor Membership Program Please support these vendors that support ITLA and your profession! Legacy $25,000 Preferred Capital Funding of Illinois Amicus Court Reporters, Inc Settlement Advisors Benefactors $15,000 McCorkle Court Reporters, Inc. Waterville Advisors Sponsors $5,000 Evidence Video Sullivan Reporting Company Express Medical Records Robson Forensic Med-Law Connection Life s Plan Inc. Pooled Trust Groundwork Trial Consulting BeaconRehab LifeCarePlan/Econ/Voc Suisse Bancorp U.S. Legal Support, Inc. Sponsors continued Oasis Legal Finance It s Your Serve Pohlman USA Court Reporting Summit Pharmacy Automated HealthCare Solutions Midwest Litigation Services H-WAVE AthletiCo Merrill Lynch Legal Capital Ringler Associates IWP ATI Physical Therapy Kelly Ramsdale Associates Northern Trust Banyan Finance Synthesis Legal Nurse Consultants Lake Shore Court Reporting Don t wait. Act now, and be a part of protecting the civil justice system. as of September 21, Justice for All
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