Chicago Accident Law Blog

Second Opinions-Personal Injury Cases

Tue, 01 May 2012 18:35:25 -0600

People injured in accidents in Illinois frequently hire an attorney recommended by a friend or who advertises on TV. The lawyer retained will sometimes have little or no jury trial experience-this question should always be asked before retaining the attorney. Oftentimes the client becomes unhappy with the lawyer-lack of communication, attorney lacks the required experience, lawyer referring case out to another lawyer, and many more. Whatever the reason you are entitled to consult with another attorney for a second opinion. I have successfully represented injured victims and their families in personal injury and wrongful death lawsuits in Illinois state courts and federal courts throughout the United States for over 30 years.

On the occasions that I have been contacted for a second opinion the most common questions posed are: Is it possible to change lawyers?-the answer is YES, What will it cost to change lawyers?-the answer is often NOTHING, and Will it hurt my ability to collect full compensation?-the answer normally is NO. Remember that if you suffered injuries as a result of the fault of another you will only get one opportunity to obtain full and fair compensation and unless you have a mutual relationship of trust and respect with your lawyer it is unlikely that your goals will be achieved. It is a fundamental right of every client to discharge his/her attorney and hire another attorney and this decision must be respected by the discharged attorney.

All cases present unique factual and legal issues and we offer free consultation to discuss your case. I take pride in guaranteeing that I will be present with you at all times during the lawsuit from initial consultation, depositions, pretrial conferences, the jury trial, and any appeals that may follow. You will not be referred to another lawyer or firm nor will a young associate handle your case. I remain with my clients all the way through the litigation process. This is important because I have numerous significant verdicts for my clients in personal injury and wrongful death actions including many multi million dollar verdicts. The insurance companies and their lawyers know this-and this significantly increases your opportunity to receive full compensation. Should you so choose feel free to contact Edmund Scanlan toll free at 877-494-1309 for a free telephone or office consultation.

Illinois Sexual Abuse Statute of Limitations

Wed, 28 Mar 2012 18:00:35 -0600

Illinois sexual abuse lawyers representing clients who were abused when they were children are confronted with four different versions of 735 ILCS 5/13-202.2. A careful analysis of the four distinct versions of the statute is essential in determining whether the claim is viable or fails due to the statute of limitation and/or the statute of repose.

The 1991 version (effective 1-1-91) of 735 ILCS 5/13-202.2 provides that an action for childhood sexual abuse must be commenced within 2 years of reaching 18 or 2 years from the date the person abused discovers the act of childhood sexual abuse occurred and that an injury was caused by the childhood sexual abuse. The statute of repose in the statute provided that : "...but in no event may an action for personal injury based on childhood sexual abuse be commenced more than 12 years after the date on which the person abuse attains the age of 18 years."

The Illinois Appellate Court in Wisniewski v. Dioceses of Belleville, 406 Ill. App. 3d 1119, 1150, 943 N.E. 2d 43, 69 (2011), stated: "The difference between a statute of limitations and a statute of repose is that a statute of limitations governs the time within which lawsuits may be commenced after a cause of action has accrued, while a statute of repose extinguishes the action after a fixed period of time, regardless of when the action accrued. "The effect of the 1991 version of the statute was to "bar anyone over the age of 30 from bringing an action for personal injury based on childhood sexual abuse." Doe v. Diocese of Dallas, 243 Ill. 2d 393, 408, 917 N.E. 2d 475, 484 (2009).

The 1994 version (effective 1-1-94) of 735 ILCS 5/13-202.2 eliminated the 12 year statute of repose for childhood sexual abuse claims. However, the legislature's repeal of the statute of repose was not applied retroactively to revive claims that had expired prior to the repeal of the statute of repose. Doe v. Diocese of Dallas, 234 Ill. 2d at 409, 917 N.E. 2d at 484 (2009). Accordingly, if the victim of childhood sexual abuse has attained the age of 30 prior to January 1, 1994, the statute of repose bars the action and it cannot be revived by the 1994 repeal of the statute of repose.

The 2003 version (effective 7-24-03) of 735 ILCS 5/13-202.2 increased from 2 years to 10 years the time after attaining 18 to bring an action. It also increased from 2 years to 5 years the time frame for bringing an action after discovering both (i) that the act of childhood sexual abuse occurred and (ii) that the injury was caused by the sexual abuse. The statute specifically states: "Knowledge of the abuse does not constitute discovery of the injury or the causal relationship between the any later-discovered injury and the abuse." This language was important because it overruled the Illinois Supreme Court's holding in Clay v. Kuhl, 189 Ill. 2d 603, 611, 727 N.E. 2d 217, 222 (2000), where the court stated: "Notably, Illinois law presumes an intent to harm and a resulting injury from the type of misconduct allegedly committed by Kuhl." The 2003 amendment was critical because the effects on a victim of childhood sexual abuse frequently do not manifest themselves or are not understood to be related to the sexual abuse until well after 5 years after the victim reaches the age of 18.

The 2011 version (effective 1-1-11) of 735 ILCS 5/13-202.2 increased from 10 years to 20 years the time after 18 to bring an action. It also increased from 5 years to 20 years the time for bringing an action after discovering "both (i) that the act of childhood sexual abuse occurred and (ii) that the injury was caused by the childhood sexual abuse."

The effects of these amendments are to allow victims of childhood sexual abuse to bring actions even though the injuries and effects of the abuse and their causal relationship are not discovered until well into their adult years. When discussing issues surrounding sexual abuse claims it is essential that you discuss your situation with an attorney familiar with the nuances not only of the statute of limitations but also of the tactics of the attorneys who defend those charged with abusing children. Should you wish to discuss any issues regarding childhood sexual abuse feel free to contact Edmund Scanlan toll free at 877-494-1309.

Traumatic Brain Injury-Release Signed-Mutual Mistake of Fact

Fri, 16 Mar 2012 18:40:50 -0600

Recently I settled an Illinois traumatic brain injury lawsuit immediately before trial for $800,000. This case was complicated by the fact that the 19 year old male passenger in a car struck by a truck pulling off a stop sign actually signed a release settling his claim with the claims adjustor for $3,250 a few weeks after the accident. About nine months later the young man's behavior changed radically and he was ultimately admitted to a mental health center with a diagnosis of major depression, and he has and will remain in an inpatient facility for the rest of his life. Suit was filed shortly after his family suspected that he may have suffered a brain injury in the accident, but that the brain injury did not manifest itself until several months following the accident. Defendants filed motion to dismiss on the basis of the release, which was initially granted, but case was transferred to another judge who ruled that a factual issue remained whether there was a mutual mistake of fact.

The main issue in this case was whether there was a mutual mistake of fact at the time the release was signed. I deposed the claims adjustor who testified that she did not contemplate a brain injury at the time of settlement and that her analysis only took into account that the plaintiff had twelve stitches to his head in the accident. The plaintiff also testified that he only felt he had a cut to his head in the accident at the time he signed the release. Four years after the accident a brain injury specialist diagnosed him as having a traumatic brain injury. He testified convincingly that plaintiff was not suffering from depression or schizophrenia, but rather had sustained a traumatic brain injury in the auto accident.

A few months before trial was scheduled to begin I filed a motion for partial summary judgment alleging that there was a mutual mistake of fact that voided the release. In Scherer v. Ravenswood Hospital, 70 Ill. App. 3d 939, 947, 388 N.E. 2d 1268, 1274 (1979) the court stated: "Where...the evidence reveals an injury involving such pervasive damage as permanent mental retardation, resulting from cerebral dysfunction; the settlement is in an amount significantly disparate to the seriousness of the injury; and the injury is an unanticipated, extraordinary complication, then a mutual mistake of fact has been clearly and convincingly proven which, if allowed to stand, will result in an unconscionable hardship to plaintiff."

Relying on Scherer v. Ravenswood as well Meyer v. Murray, 70 Ill. App. 3d 106, 387 N.E. 2d 878 (1979), the trial judge ruled that the release was invalid based on a mutual mistake of fact at the time the release was signed-neither plaintiff nor claims adjustor were aware of the seriousness of the injury at the time the release was negotiated. Shortly before trial the case settled for $800,000. If you or a family member has sustained a traumatic brain injury call Edmund Scanlan toll free at 877-494-1309 for a free consultation.

Online Prescriptions Are Becoming A Public Health Threat

Sun, 04 Mar 2012 15:12:00 -0600

Purchasing prescription drugs over the internet without a valid prescription is shockingly simple. An internet connection, a credit card and basic Google skills are all you need to have prescription drugs delivered to your front door.

The National Association of Boards of Pharmacy (NABP) issued a rare "public health alert" on July 28, 2011. Based on a recent study the NABP found that 96 percent of 8,000 rogue websites analyzed continue to operate out of compliance with U.S. pharmacy laws. In their alert the NABP warned: "The fake online pharmacy crisis has reached an epidemic level, they prey on prescription drug abusers, and the most vulnerable members of society..." Most of these sites will sell prescription drugs without a valid prescription. The National Center on Addiction and Substance Abuse (CAPA) at Colombia University in 2006 found that 9 out of 10 websites selling prescription drugs do not require a prescription.

According to research conducted by the Partnership for a Drugfree.org found that 1 in 6 Americans purchase prescription drugs via the internet without a valid prescription. They also found that from 2000 to 2007 states with the fastest growth of Internet access also had the largest jump in hospital admissions for treatment of prescription drug abuse. The Journal of Health Affairs in May 2011 suggested that the growth of high speed internet access has fueled prescription drug abuse.

The sale of prescription drugs over the internet is extremely lucrative (see my blog of Jan. 18, 2007) and is fueled by the unholy trio of website operators (frequently overseas), the pharmacists, and online prescribing physicians. The physicians who issue prescriptions based on online questionnaires without ever seeing the patient are the most reprehensible. The Ryan Haight Online Pharmacy Consumer Protection Act makes it a felony to prescribe controlled substances over the internet without a valid prescription. However, even the sale of non controlled prescriptions drugs without a valid prescription -patient having a physical examination by a physician- is also a felony (see my blog of December 15, 2011). Late last year Senators Feinstein and Sessions introduced the Online Pharmacy Safety Act of 2011 which makes it a felony to prescribe non controlled prescription drugs without a valid prescription.

If you or a family member have been injured or died as a result of a prescription drug obtained over the internet, you can and should fight back. Medical malpractice and product liability lawsuits against internet pharmacies, pharmacists, and physicians who prescribe without a valid physician-patient relationship are an effective way to secure not only compensation for your losses but also to put a halt to this growing public health threat. Should you wish to discuss your situation further, feel free to contact Edmund Scanlan toll free at 877-494-1309.

Illinois Wrongful Death - "In-Concert Liability"?

Mon, 13 Feb 2012 11:01:59 -0600

A tragic accident on Interstate 290 in Addison, Illinois occurred early Saturday morning February, 11, 2012, when a 32 year old intoxicated man, leaving a work-related event, drove his car into a stopped squad car that had been waiting for a tow truck as a result of a previous collision.. A 42 year old man in the squad car was killed in the crash and the state trooper was injured.

The families of the victims of these tragedies are all too often left with only the amount of money that can be recovered under the intoxicated motorist's insurance policy. This can be as low as $20,000 per occurrence in Illinois and it rarely exceeds $300,000. Illinois wrongful death lawyers need to be aggressive in exploring all potential areas of recovery for the family in these tragic circumstances.

Illinois accident attorneys seeking to recover damages in addition to the insurance coverage on the intoxicated motorists vehicle can look to see (1) if Dram Shop Act (235 ILCS 5/6-21) liability is present-intoxicated motorist leaving tavern where he became intoxicated causes crash, or (2) whether "in-concert" liability will attach.

The law in Illinois is settled that the exclusive remedy for holding sellers of alcohol (taverns) liable for the actions of intoxicated drivers is under the Dram Shop Act. Cunningham v. Brown, 22 Ill. 2d 23, 174 N.E. 2d 153 (1961). While a defendant is generally under no duty to prevent the criminal acts of a third party absent a "special relationship." Hills v. Bridgeview Little League, 195 Ill. 2d 210, 228, 745 N.E. 2d 166 (2000), Illinois courts have adopted "in-concert" liability.

Section 876 of the Restatement (Second) of Torts imposes liability on those who act in concert with another tortfeasor giving substantial assistance or encouragement to another's tortious conduct. The Illinois Supreme Court has adopted Section 876 in Simmons v. Homatas, 236 Ill. 2d 459, 925 N.E. 2d 1089 (2010). The court in Simmons stated: "Although one does not have a duty to prevent the criminal acts of a third party, one does have a duty to refrain from assisting and encouraging such tortious conduct." 236 Ill. 2d at 476, 925 N.E. 2d at 1100.

In-concert liability may be a narrow exception to the rule that no duty exists to prevent the criminal acts of a third person absent a "special relationship," nonetheless all of avenues of recovery should be explored in these tragic accidents. All cases of serious personal injuries or wrongful death should always be investigated by an experienced jury trial lawyer who can best assess whether all avenues of recovery are being explored. Should you so choose you can contact Edmund Scanlan toll free at 877-494-1309 for a free consultation to discuss your options.

Keeping Illinois DePuy Hip Implant Lawsuits in State Court

Sun, 12 Feb 2012 17:47:55 -0600

Illinois attorneys representing clients who have had recalled DePuy hip prosthesis implanted, should be aware that these lawsuits can be kept in the state courts. Care must be taken in drafting the complaint and attention should be paid to federal civil procedural deadlines regarding remanding a case back to the state court system.

First, the DePuy ASR XL Hip Acetabular System and the ASR Hip Replacement System that were recalled by DePuy Orthopedics in August 2010, were distributed by Premier Orthopedic Sales, Inc., an Illinois corporation (See blog of April 5, 2011). Premier needs to be joined as a defendant along with DePuy Orthopedics, Inc., an Indiana corporation, pursuant to 735 ILCS 5/2-621.
Second, in drafting the complaint against Premier, it is essential that you allege facts that preclude removal pursuant to 735 ILCS5/2-621(c)(1), (2), or (3), specifically:
(1) Premier exercised control over design or manufacture; or
(2) Premiere had knowledge of the defect; or
(3) Premier created the defect.

On February 10, 2012, I filed suit in the circuit court of Cook County, on behalf of a lady whose DePuy hip implant system not only had the component parts come loose, but also caused dangerously high levels of chromium and cobalt in her blood. By alleging that the distributor, Premier Orthopedic Sales, Inc., had knowledge of the defects I plan on strenously resisting all efforts of DePuy Orthopedics to remove this action to federal court.

Many of the nationwide lawsuits that have been filed against DePuy Orthopedics, Inc. in state courts have been removed to federal court by DePuy based on 28 U.S.C. 1441, which essentially allows defendants to remove lawsuits filed in state courts to federal court, if each defendant resides in a different state than the plaintiff, no defendant is a citizen of the state in which action brought, and the amount in controversy exceeds $75,000.

Should DePuy Orthopedics, Inc. attempt to remove an action filed in an Illinois state court to federal court in a lawsuit that names Premier Orthopedic Sales, Inc. as a defendant, this can be remanded back to state court if the case was plead properly. Pursuant to 28 U.S.C. 1447(c), plaintiff has thirty days after removal to file a motion to remand the suit back to state court.

In Kopitke v. DePuy Orthopaedics, Inc. and Premier Orthopaedic Sales, Inc. (2011 WL 856865), Judge Darrrah of U.S. Dist. Ct. for the N.D. of Illinois, remanded a lawsuit DePuy had removed to federal court. The court ruled that the distributor, Premier, was not fraudulently joined to destroy diversity jurisdiction and that the allegations complied with 745 ILCS5/2-621(c)(2). The Seventh Circuit has defined "fraudulent joinder" as "a claim against an in-state defendant that simply has no chance of success." Poulos v. Nass Foods, 959 F. 2d 69, 73 (1992). Allegations alone are insufficient to keep a case in state court since a defendant seeking removal is entitled to present facts showing that "the individuals joined in the action cannot be liable on any theory." Ritchey v. Upjohn, 139 F. 3d 1313, 1318 (9th Cir. 1998).

Lawsuits against DePuy for their recalled hip implant systems filed in federal court or removed to federal court, are all transferred to the U.S. Dist. Ct. for the Northern District of Ohio to a multi district litigation panel along with thousands of other lawsuits. Keeping your clients' cases in the Illinois state courts to be handled individually is far preferable to having your client share her or his day in court with thousands of other claimants. If a case can be filed in the Illinois state courts, it should be. In selecting an attorney to represent you in DePuy litigation, remember to select an attorney not only with experience in product liability cases but also an attorney with extensive jury trial experience. Should you so choose, feel free to call Edmund Scanlan toll free 877-494-1309 for a free consultation to discuss your options.

Online Malpractice Is Criminal

Mon, 05 Dec 2011 18:04:54 -0600

The business of prescribing and shipping prescription medications over the internet has been used by physicians and pharmacists to ship medication out of state based solely on an online questionnaire. This can be and frequently is a violation of federal law, and if it is intentional it is a felony.

Many attorneys do not wish to get involved in cases where patients accidentally or intentionally overdose on these medications. There are several reasons for this reluctance. First, they frequently involve drug addicts whose personal physicians would never prescribe these medications. Second, the patient, physician, and pharmacist generally all live in different states and there are significant issues as to which states' laws apply. These case can be and I have been bringing them in the federal courts with success.

These physicians, pharmacists and pharmacies are commonly committing felonies, namely the crime of misbranding, in violation of 21 U.S.C. 353(b), 21 U.S.C. 331(a) and (k). Pursuant to 21 U.S.C. 333(a)2 it is a felony if it is done with intent to defraud or mislead. Most of the websites state that the physicians and pharmacies are licensed in your local area. Few are licensed where the prescriptions are shipped.

A good analysis of misbranding can be found in U.S. v. Smith, 573 F.3d 639, 651 (8th Cir. 2009), where the Court of Appeals held a prescriptions is misbranded if it is not accompanied by some sort of physical examination of the patient. None of these websites offer or even contemplate the patient seeing a physician. They merely require an online questionnaire to be filled out, and. most importantly a credit card that clears. Prescriptions are frequently shipped that day or the next by Fed Ex.

Patients and their families are reluctant to come forward because the victim is commonly an addict. The physicians and pharmacists know this and rely on this hesitancy-but victims and families should step up and sue these professionals for the drug dealers that they are. After all, criminal prosecutions are instituted everyday against drug dealers selling drugs to addicts, why should these unethical and criminal professionals not be brought to justice and to have to answer financially for their criminal conduct. If you or a family member have received prescription drugs over the internet, and an overdose has occurred, feel free to contact Edmund Scanlan toll free at 877-494-1309 to discuss what actions may be taken. If nothing else you may be assured that they will not be repeating this conduct.

Illinois DePuy Hip Implant Recall Lawyers

Tue, 05 Apr 2011 12:56:28 -0600

Illinois product liability lawyers need to be aware of the August 2010 recall by DePuy Orthopedics of its defective metal-on-metal hip implant systems. The two hip implant systems recalled are the: (1) ASR XL Acetabular System, and (2) ASR Hip Replacement System, which first became available in 2003.

The most common problem with the ASR hip implant systems is that its components come loose. One of the design defects of these hip implant systems is that the cup-"acetabular prosthesis"-is too shallow causing it to: (1) dislocate, and (2) to shave cobalt and chromium off the metal-on-metal system and into the bloodstream when the joint's ball strikes against the cup's edge-"edge loading".

According to figures released by DePuy, 93,000 patients were implanted with these hip implants. There are current estimates that indicate that as high as 90% of patients with these hip implant systems will require revision surgery.

The most frequent symptoms experienced by patients are:
*dislocation of the hip
*metallosis and cobalt poisoning caused by chromium and cobalt being sheared off the system by"edge loading"
*fracture of the bone near the implant site
*sever pain
*inflammation and swelling
*significant difficulties walking
Metallosis can cause tissue breakdown and bone loss. Cobalt poisoning is even more insidious and can cause ringing in the ears-"tinnitus", vertigo, nerve atrophy, deafness, blindness, optic nerve atrophy, convulsions, headaches, and cardiomyopathy. Unfortunately these systems receive FDA approval through a process known as"510(K) approval process"-that did not require human tests.

DePuy Orthopedics, a division of Johnson & Johnson, is now contacting patients with these hip implant systems and offering "reasonable and customary costs of monitoring and treatment". These offers do not include:
*pain and suffering associated with the failure and the revision surgery
*medical complications that may be associated with the removal and installation of a new hip implant system
*lost wages
*any temporary or total disabilities cause by the failure
*DePuy also requires that patients submit their bills to their own insurance companies, Medicare, or other employee sponsored health plans before they consider paying medical expenses.

Patients with these DePuy ASR hip implant systems should be extremely cautious before entering into any agreement with DePuy or Johnson & Johnson. Anyone who has had these hip implant systems used in a hip replacement should contact an experienced product liability attorney to discuss your options. The best option may be to institute a product liability lawsuit to secure full compensation for all damages incurred, e.g. medical expenses, lost wages, pain and suffering, permanent disabilities, as well as damages for and complications incurred as a result of the revision surgery.

Should you so choose, feel free to call Edmund Scanlan toll free at 877-494-1309 for a free consultation to discuss your options. Our firm has extensive experience in product liability lawsuits and hip implant litigation in particular.

Online Medical and Pharmacy Malpractice

Tue, 15 Mar 2011 18:55:53 -0600

Physicians who prescribe drugs over the internet without seeing the patient and the pharmacies that fill and ship the drugs have sought to evade criminal and civil liability by prescribing non controlled substances. The DEA enforces the Federal Controlled Substances Act (21 U.S.C. 80 et seq.) which explicitly prohibits the sale of controlled substances prescribed by physicians who have never seen the patient.

Non controlled prescription drugs are governed by the Food, Drug and Cosmetics Act (21 U.S.C. 301 et seq.) which does not explicitly address online prescriptions and consultations. Criminal and civil prosecutions are now being pursued against these online pharmacies and physicians who sell, ship, and prescribe non controlled prescription drugs to patients based solely on an online questionnaire and "without some sort of examination." U.S. v. Smith, 573 F. 3d 639, 651 (8th Cir. 2009).

The legal theory behind these prosecutions is that online consultations with a physician is not the basis for a legitimate prescription, and therefore constitutes the crime of misbranding under the Food, Drug and Cosmetics Act (21 U.S.C. 353(b)(1), which is prohibited under 21 U.S.C. 331(a) and (k). The introduction or delivery into interstate commerce of a drug that is misbranded is punishable under 21 U.S.C. 333(a)(1), and as a felony under 21 U.S.C. 331(a)(2) if it is done with intent to defraud or mislead. The web pages of most online pharmacies that ship prescriptions without some sort of examination do both. Frequently neither the physician nor the pharmacy are licensed to prescibe or fill prescriptions in the state into which they are shipped.
U.S. v. Smith, the Eighth Circuit stated: "A drug is misbranded unless dispensed up
In on a prescription of a practitioner licensed by law to administer such drug. 21 U.S.C. 353(b)(1)." Smith at 573 F. 3d 639, 650 (2009). The Smith court described a "prescription drug as misbranded if it dispensed other than through a valid prescription." 573 F. 3d at 651. The Court defined "valid prescription" as "...a bona fide order-i.e. directions for the preparation and administration of a...drug for a real patient who actually needs it after some sort of examination..." 573 F. 3d at 651.

Illinois Enshrines "The Natural Accumulation Rule"

Fri, 12 Nov 2010 11:24:25 -0600

Illinois personal injury lawyers representing clients who are injured slipping on snow or ice will now find that the likelihood of obtaining compensation for the client is remote. In Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 2010 WL 2780319, (2010), the Illinois Supreme Court held: We conclude that the natural accumulation rule applies in
in this case and that the CTA had no duty to remove the
natural accumulation of ice and snow from its platform,
nor any duty to warn of the existence of such natural
natural accumulation.
Over a vigorous dissent by two justices the Supreme Court majority ruled that the natural accumulation rule trumps any duties owed by the CTA as a common carrier to its passengers.

The decision is a little confusing because the court discusses at length whether the CTA has a duty under the traditional duty analysis, namely (1) reasonable foreseeability of the injury; (2) likelihood of the injury; (3) magnitude of the burden of guarding against the injury; and (4) consequences of placing that burden on the defendant. This is the traditional test to determine whether the plaintiff and defendant stood in such a relationship to one another that the law imposes on the defendant an obligation of reasonable conduct for the benefit of the plaintiff. The Appellate Court in reversing a jury verdict for the CTA passenger held that to require the CTA to inspect all its platforms at every station would be impractical. The Appellate Court stated: "The transit system would be brought to a standstill if passengers were not allowed to alight from their trains until a CTA train operator and/or other employee ran around the platform, taking measurements to determine which portion of the platform currently had the least amount of snow or ice or the most sand spread....The magnitude and consequences of imposing such a duty on the CTA would be overwhelmingly detrimental to the efficient performance of the transit system, and so we decline to impose it here."Krywin v. Chicago Transit Authority, 391 Ill. App. 3d 663, 670, 909 N.E. 2d 887, 893 (2009).

The Supreme Court's opinion could reasonably be interpreted as affirming the judgment of the Appellate Court which merely ruled that under the traditional duty analysis that imposing such a burden on the CTA would be "overwhelmingly detrimental to the efficient performance of the transit system." Under this analysis a valid argument could be made that the language of the Illinois Supreme Court cited above was mere dicta, and unneccesary to affirm the Appellate Court's judgment that the CTA had no duty under the circumstances presented. Tough argument, but in light of the inherent conflicts with other Illinois Supreme Court opinions pointed out in the cogent reasoning of the dissent, it is an avenue that may be available in the appropriate case.

Illinois Sexual Abuse Victims Law Updates

Thu, 26 Aug 2010 13:58:10 -0600

Illinois sexual abuse victims and their attorneys have experienced progress and setbacks in attempts to receive just compensation for their injuries-many of which are catastrophic and permanent.

...735 ILCS 5/8-2801 protects victims of sexual abuse having to defend against evidence of other sexual behavior. This is extremely important because victims do not want to have their whole history of sexual activity put under a public spotlight in order to pursue a legitimate claim of sexual abuse. Effective January 1, 2010.
...735 ILCS 5/13-202.2 increased the time victims of childhood sexual abuse have to file suit to 20 years after victim reaches 18 or 20 years from the date the victim discovers both (1) that the act of childhood sexual abuse occurred and (2) that the injury was caused by the sexual abuse. This good news for victims since they frequently don't recognize until well after they reach 18 that their psychological and/or emotional injuries were caused as a result of the sexual abuse they suffered as children. Effective January 1, 2011

...735 ILCS 5/13-202.3 eliminates the 2 year statute of limitations for adult victims of sexual if they are subject to "threats, intimidation, manipulation or fraud perpetrated by the perpetrator." Efffective January 1, 2008.

...Doe v. Diocese of Dallas, 234 Ill. 2d 393, 917 N.E. 2d 475 (2009). The Illinois Supreme Court held that the increased statute of limitations contained in 735 ILCS 5/13-202.2 (see above) does not resurrect a claim that was already barred by a prior statute of limitations when when the new statute of limitations became effective-July 24, 2003. The court based its holding on the Ill. Const. 1970, Art. I Sec. 12. ruling "once a statute of limitations has expired, the defendant has a vested right to invoke the bar of the limitations period as a defense to the cause of action..." Basically, once a statute of limitations has expired the cause of action cannot be resurrected by an act of the legislature without violating the Illinois State Constitution. This ruling has precluded many legitimate claims of childhood sexual abuse from proceeding, but its effect through time will be diminished.

...In re Detention of Tommy O. Hardin, 2010 WL 2524155, the Illinois Supreme Court held that probable cause standard was met under the Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq.) adopting a more relaxed standard employed by the state of Wisconsin in State v. Watson, 227 Wisc. 167, 595 N.W. 2d 403 (1999). The court has made the burden on the state less onerous when they seek to meet probable cause to have a trial on whether civil commitment is appropriate after a sexual abuse offender has completed his or her term of incarceration. Good news for society-pedophiles have a high rate of recidivism.

Illinois Uninsured and Underinsured Motorist Claims

Thu, 06 May 2010 11:12:59 -0600

Illinois car accident attorneys should be aware of two recent opinions which expand the rights of injured parties to recover in uninsured motorist and underinsured motorist claims: (1) Uninsured Motorist claims - Nicholson v. State Farm Ins. Co., 2010 WL 1208887 (Ill. App. Ct. 2nd Dist.) released March 23, 2010.
(2) Undersinsured Motorist claims - Schultz v. Illinois Farmers Ins. Co., 2010 WL 966206 ( Ill. Sup. Ct.) released March 18, 2010.

In Nicholson, the issue was whether an Illinois insurer has to offer uninsured motorist coverage in an amount equal to liability coverage that an insured has elected to increase or whether an earlier rejection of higher limits exempts the insurer from this statutory requirement. Essentially in Nicholson an insured elected to increase his liability coverage and the insurered failed to get a written rejection of equal limits for uninsured motorist coverage as is required by 215 ILCS 5/143a-2(1). This section establishes the general rule that no automobile liability insurance policy "shall be renewed or delivered or issued in this State" unless UM coverage equivalent to the liability coverage is included, "unless specifically rejected by the insured."

The Nicholson court stated: "(t)he language, with its statement that the rule applies to policies that are renewed and its references to the insured, clearly expresses a legislative intent to include current policyholders, not just first-time applicants, within the statute's ambit." State Farm argued that 215 ILCS5/143a-2(2) sets out an exception to the rule requiring insurers to offer UM coverage equal to liability coverage and that the exception applies here because it states that equal coverage need not be provided in any "renewal, reinstatement, reissuance, substitute, amended, replacement or supplementary policy." The Appellate Court conceded that the language contained in subparagraphs(1) and (2) "is somewhat ambiguous."

The Nicholson court conclude that: " We believe that a change in the level of coverage, with its attendant change in the premium cost, is a material change that results in a new policy rather than a mere continuation of the old policy....in light of these material changes, the defendant was required to once again offer...equal UM coverage and to obtain a rejection of that coverage before the Janotas their new policy." The bottom line is that auto insurers in Illinois must offer and obtain a rejection of higher UM benefits when increasing an insureds liability coverage. Good news for victims seeking compensation for their injuries.

Illinois Railroad Accident Brings $33 Million

Sun, 28 Mar 2010 17:24:01 -0600

Victim of Illinois railroad accident receives a $33 million from jury on March 25, 2010. A 19 year old railroad conductor was severely injured on April 8, 2007, when he fell alongside a moving train in the Rock Island train yard while attempting to pull a uncoupling lever on a train. The plaintiff sustained bilateral leg amputations as well as other catastrophic injuries.

The Iowa Interstate Railroad, and its engineer were charged with violating numerous safety rules while switching cars, particularly the federal radio communication rule governing train operations that requires an engineer, when backing a train in response to a radio command from a conductor, to stop in half the distance of what the command was, unless additional commands received. Jurors are generally receptive to violations of federal statutes or regulations as persuasive evidence of negligence, they certainly did in this case. The railroad initially published a memo blaming the injury on the injured conductor, but obviously the Rock Island County jury felt differently. An appeal is sure to be filed.

Common Fund Doctrine Applies to Illinois Medical Liens

Tue, 09 Mar 2010 18:13:06 -0600

Illinois personal injury lawyers should be aware that on March 4, 2010, the Appellate Court in Holloway v. Dunway, 2010 WL 763918, held that medical providers stautory liens for services rendered (770 ILCS 23/1 et seq.) to an injured person are subject to reduction under common fund doctrine for attorneys fees incurred by plaintiff in obtaining recovery. The Court held and stated:

* if the professional or provider seeks to collect the debt owed to it out of the common fund created by the plaintiffs and their attorneys, the common fund doctrine applies and it is responsible for its proportionate share of attorney fees and costs- 770 ILCS 23/45.
*the common fund doctrine permits a party who creates, preserves, or increases the value of a fund in which others have an ownership interest to be reimbursed from that fund in which others have an ownership interest to be reimbursed from that fund for litigation expenses incurred, including counsel fees. Scholtens v. Schneider, 173 Ill. 2d 375, 385 (1996).
*it is now well established that a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney fee from the fund as a whole.
*To sustain a claim under the common fund doctrine, the attorney must show that (1) the fund was created as a result of legal services performed by the attorney, (2) the claimant did not participate in the creation of the fund, and (3) the claimant benefited or will benefit from the fund that was created. Bishop v. Bugard, 198 Ill. 2d 495 (2002).
*it is irrelevant that the party who benefits from a lawyer's services has a right to compensation, be it undifferentiated right of reimbursement or subrogation.
*We believe that by its use of this language, the supreme court intended to, and did, shift the focus away from the relationship between the parties and toward what it called the "real question" of whether the claimant benefited from the lawsuit without contributing to its costs, thereby becoming unjustly enriched. Bishop, 198 Ill. 2d 495, 510. (2002).
*While the hospital's right to payment may not be dependent on the creation of the fund, its statutory lien is in fact dependent on the creation of the fund, for the lien specifically and expressly attaches only to the common fund. 770 ILCS 23/20.

The effect of this decision is that now an injured plaintiff can have the health care providers statutory lien amount (770 ILCS 23/20) reduced by an additional amount, customarily the standard attorney fees of one third. This is only fair and equitable.
This will also have the effect of health care providers submitting their bills to Medicare, Medicaid or an insurance company for payment where they never receive the full amount of their bills. Good news for injured Illinois citizens.

Avandia Linked To Heart Attacks

Mon, 01 Mar 2010 19:09:23 -0600

Illinois product liability attorneys should be aware that Avandia, a diabetes drug, is now linked to a higher risk of heart attack and heart failure according to a report released by the Senate Finance Committee on Feb. 20, 2010. The report authored by the committee chaired by Senators Baucus and Grassley concluded:

"The totality of evidence suggests that GSK (GlaxoSmithKline) was aware of the possible cardiac risks associated with Avandia years before such evidence became public....Based on this knowledge, GSK had a duty to sufficiently warn patients and the FDA of its concerns in a timely manner. Instead, GSK executives intimidated independent physicians, focused on strategies to minimize findings that Avandia may increase cardiovascular risk, and sought ways to downplay findings that the rival drug ACTOS (pioglitazone) might reduce cardiovascular risk."

According to recently released reports by the FDA if every diabetic taking Avandia were instead given a similar drug named Actos, about 500 heart attacks and 300 heart failures would be averted every month because Avandia can hurt the heart. Dr. David Graham and Dr. Kate Gelperin of the FDA stated in a report: "Rosiglitazone (Avandia) should be removed from the market."

Senator Max Baucus chairman of the Finance Committee said: "Americans have a right to know there are serious health risks associated with Avandia and GlaxoSmithKline had a responsibility to tell them. Patients trust drug companies with their health and lives and GlaxoSmithKline abused that trust." The first study to disclose the Avandia heart risk was released by the New England Journal of Medicine on May 21, 2007. The Senate report states that the FDA estimated in July 2007, that Avandia has been linked to 83,000 heart attacks since it was put on the market.

Currently most litigation is in federal court since GlaxoSmithKline is a British corporation and the cases have been consolidated for purposes of discovery in the U. S. District Court for the Eastern District of Pennsylvnia. Victims are still entitled to file the litigation in the federal court where they took the medication, but discovery will take place under the auspices of the federal judge in the federal court for the Eastern District of Pennsylvania. Now that evidence exists that GSK failed to warn of known risks of Avandis for years the prospect for success in Avandia litigation has increeased substantially. If you, a family member, or friend has had a heart attack while taking Avandia you should promptly consult with an attorney well versed in handling product liability litigation. Should you so choose feel free to contact Edmund Scanlan at 877-494-1309.