Chicago Personal Injury Lawyer Blog

Power Rogers & Smith Wins Important Argument in Illinois Supreme Court

Fri, 19 Apr 2013 15:34:44 -0600

On April 18, 2013, the Illinois Supreme Court issued its opinion in Russell v. SNFA, 2013 IL 113909. The State's highest Court agreed with the Plaintiff's argument that the Cook County Court hearing the underlying case has jurisdiction over the Defendant-foreign manufacturer.

The facts of the underlying case are tragic. The litigation resulted from a helicopter crash that took the life of pilot and sole occupant, Michael Russell. Mr. Russell was working as a pilot for a Chicago air ambulance company called Air Angels, Inc. at the time of the crash. The cause of the crash was the failure of one of the tail-rotor bearings, a custom-made metal assembly, which was manufactured by Defendant SNFA.

After the crash, the Plaintiff's Estate retained the Chicago law firm of Power Rogers & Smith. Todd A. Smith and Brian LaCien of the firm filed suit against multiple entitles, aside from SNFA, including the prior owner of the helicopter, the manufacturer of the helicopter, and the American distributor of SNFA's bearings.

After the initial filing of the lawsuit, SNFA moved to dismiss the action, arguing that the Illinois court could not properly assert jurisdiction over it. The Circuit Court of Cook County granted Defendant's motion and dismissed SNFA from the case. Smith and LaCien appealed the decision and the Appellate Court reversed, finding that the Circuit Court could subject SNFA to jurisdiction in Illinois. SNFA appealed and the Supreme Court affirmed the Appellate Court's decision, ruling in favor of the Plaintiff.

In briefing the issue, Plaintiff highlighted the fact that SNFA is a French company that manufactured custom-made bearings for use in airplanes and helicopters. While SNFA does not have a license to do business in Illinois, SNFA knowingly used the helicopter's manufacturer's distributor to distribute and market in the U.S., including Illinois. Indeed, SNFA's sales personnel made multiple sales of other products in Illinois and SNFA maintains a business relationship with a company in Rockford, Illinois for the purpose of selling additional custom-made bearings to Illinois consumers. Consequently, the Court found that these contacts with Illinois were sufficient to ensure due process was satisfied and that the exercise of jurisdiction over SNFA was reasonable and proper.

This was an important win, not only in the Russell case, but for all product liability cases involving a foreign defendant that, although it does not have a license to do business within the state, manufactures a dangerous product that injures someone in Illinois. Mr. Smith, who argued the case before the Illinois Supreme Court, commented, "The Court's recent decision ensures that Mr. Russell's lawsuit against SNFA can move forward, and that other plaintiffs seeking justice against foreign manufacturers will be able to do so, as well."

Chicago-area Man Receives $23 Million Dollar Settlement after Legs Crushed by Baler

Thu, 28 Mar 2013 09:00:00 -0600

On February 22, 2008, a Chicago-area man was injured when his legs were crushed in a paper baler, a massive piece of industrial equipment used to compact large quantities of paper. The injury occurred when the Plaintiff, who was employed by a cleaning company as a janitor, recognized that the baler was jammed and entered a chute, which fed the baler from above, in order to clear the jam. After he cleared the jam, the Plaintiff fell into the baler. There was nothing preventing the Plaintiff's fall, such as lanyards and harnesses. In addition, no training regarding OSHA lockout procedures had been provided. After the Plaintiff fell, the baler's ram crushed his legs.

Later that year, Joseph A. Power, Jr. and Brian LaCien of the Chicago personal injury law firm of Power Rogers & Smith, P.C. filed a lawsuit on behalf of the Plaintiff seeking compensation for his catastrophic injuries. The suit was filed against both the factory owner and operator. In turn, the Defendants brought a third party complaint against the cleaning company that employed the Plaintiff.

The Plaintiff's complaint alleged that Defendants violated OSHA and applicable safety standards by failing to: (1) ensure that the Plaintiff was properly trained on how to safely clear paper jams; (2) ensure that the Plaintiff had available and utilized fall protection; (3) ensure that lockout was followed while the machine was being worked on and/or when a person is in the chute/; (4) provide a hazard assessment; and (5) ensure there were adequate warning signs and that the hatches be secured by locks so that only authorized personnel could enter the chute.

Defendants denied that they knew the Plaintiff or other cleaning company employees entered the chute to unclog paper at any time prior to and including the occurrence. They contended that the Plaintiff and the cleaning company, as the Plaintiff's employer, were the entities liable for his injuries. However, Mr. Power and Mr. LaCien discovered evidence that individuals had entered the chute to clear paper jams in the past. The Defendants and Third Party Defendant received OSHA violations as a result of the incident.

On February 20, 2013, Mr. Power and Mr. LaCien settled with Defendants for $23,000,000.00 as compensation for the Plantiff's pain and suffering, disfigurement, past and future medical care, wage losses and all other available damages.

Nine Power Rogers & Smith Attorneys named Illinois Super Lawyers

Thu, 07 Mar 2013 09:00:00 -0600

Recently, the 2013 Illinois Super Lawyers were announced. Nine of the attorneys at the Chicago personal injury law firm of Power Rogers & Smith made the list. Among those honored were founding partners Joseph A. Power, Jr., Larry R. Rogers and Todd A. Smith, as well as partners Thomas G. Siracusa, Thomas M. Power, Larry R. Rogers, Jr., Devon C. Bruce, Joseph W. Balesteri and associate Brian LaCien. In addition, founding partners Joseph A. Power, Jr. and Todd A. Smith were named to the "Top 10 Illinois Super Lawyers 2013 Top List," which includes the ten lawyers who received the highest point totals in the Illinois selection process.

To explain the purpose of and process by which Super Lawyers arrives at its best-of lists, below is an overview from the Super Lawyers website:

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.

Super Lawyers Magazine features the list and profiles of selected attorneys and is distributed to attorneys in the state or region and ABA-accredited law school libraries. Super Lawyers is also published as a special section in leading city and regional magazines across the country.

Super Lawyers selects attorneys using a rigorous, multiphase rating process. Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.

The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. Since Super Lawyers is intended to be used as an aid in selecting a lawyer, we limit the lawyer ratings to those who can be hired and retained by the public, i.e., lawyers in private practice and Legal Aid attorneys.

The Super Lawyers selection process involves three basic steps: creation of the candidate pool; evaluation of candidates by the research department; and peer evaluation by practice area.

For a detailed explanation of the selection steps, check the Super Lawyer Selection Process webpage.

Joseph A. Power, Jr. Educates Colleagues on Direct Examination at Chicago ITLA Continuing Legal Education Seminar

Wed, 27 Feb 2013 09:00:00 -0600

On February 18th, 2013, Joseph A. Power, Jr., founding partner of the plaintiff's personal injury law firm of Power Rogers & Smith, P.C., spent the President's Day court holiday lecturing fellow attorneys as part of the Illinois Trial Lawyer Association's (ITLA) Continuing Legal Education Seminar. The Seminar was aimed at educating lawyers about the issues involved in and the importance of proving damages in a personal injury case. In particular, Mr. Power's speech addressed specific techniques and practice tips related to the direct examination of witnesses and parties at trial. After his lecture session was finished, Mr. Power sat on a panel and answered questions from the audience. "It is a treat to be able to learn from your colleagues," said Mr. Power. "Speaking at these seminars is about expanding your area of expertise and using your years of experience to help and educate other practitioners who are also interested in protecting injured persons' rights."

Each year, attorneys in Illinois are required to obtain a certain number of "continuing legal education" credits in order to maintain their license to practice law. This requirement was first established in September of 2005, when the Supreme Court of Illinois ratified Supreme Court Rules 790-798. As Power explained, "The continuing education requirements formalize what many practitioners knew was an essential part of the practice of law- they ensure that lawyers remain up to date on the latest developments in case law and other issues involved in the practice."

Power is a past president of the Illinois Trial Lawyers Association ('92-'93) and he firmly believes that the educational seminars put on by ITLA are among the best available to attorneys practicing personal injury law. "If you practice in this area, it is hugely beneficial to attend seminars that provide practical advice and resources that are specially tailored to the unique issues involved in personal injury litigation," said Power.

For information on the Minimum Continuing Legal Education Requirements set forth by the Supreme Court of Illinois, check here. And, for more information on the Illinois Trial Lawyers Association, please visit their website here.

Power Rogers & Smith Makes Progress in Dixon, Illinois Embezzlement Lawsuit

Mon, 04 Feb 2013 09:00:00 -0600

Devon C. Bruce, partner at Power Rogers & Smith, is featured in Crain's Chicago Business for his role as plaintiff's counsel in the embezzlement scandal involving the former Dixon, Illinois comptroller, Rita Crundwell.

As reported in Crain's Chicago Business, "How Dixon's auditors missed the biggest embezzler of all time," Steven R. Strahler, February 02, 2013:

CliftonLarsonAllen LLP is the dog that didn't bark.

The accounting firm was the auditor of the city of Dixon, while also performing other financial duties for the north-central Illinois community such as check processing. In addition, its personnel prepared tax returns for then-Dixon Comptroller Rita Crundwell.

Yet CliftonLarson never caught on to the fact that Ms. Crundwell was an embezzler who siphoned away $53.7 million over 20 years in what is said to be the biggest municipal fraud in U.S. history. Now Dixon is demanding that the firm compensate it for the entire loss, contending in a lawsuit that the bookkeepers failed to connect easily linkable dots.

The suit alleges, for instance, that CliftonLarson overlooked clearly bogus state invoices submitted to City Hall by Ms. Crundwell that resulted in six-figure checks that she steered into her own account at a local bank branch where Dixon kept its funds. In 2005, her city salary was $56,428.

Ms. Crundwell, a 60-year-old horse breeder who had worked for her hometown since high school, is scheduled to be sentenced next week by a federal judge in Rockford after pleading guilty in November to one count of wire fraud. She faces up to 20 years in prison and a $250,000 fine. Federal marshals have collected $8 million by auctioning off some of her ill-gotten goods, which included hundreds of horses and 14 cars.

Litigation against CliftonLarson is only beginning to unfold. Dixon--a farm-country city of 15,700 and one of Ronald Reagan's boyhood homes--hired a high-profile Chicago personal-injury law firm, Power Rogers & Smith P.C., to sue for damages in late December.

CONTINUED TO AUDIT

CliftonLarson, which was known as Clifton Gunderson LLP until a merger last year, was founded in Peoria in 1960. It now is based in Milwaukee and Minneapolis. The firm, which specializes in accounting for privately held business, small municipalities and nonprofits, has 1,550 CPAs and $570 million in annual revenue, about half the size of McGladrey LLP and Grant Thornton LLP, both based in Chicago.

Attorney Devon Bruce of Power Rogers & Smith P.C.
Photo by: Erik Unger

CliftonLarson in 2005 resigned as auditor for Dixon in order to keep other city assignments such as ledger-keeping after an influx of federal funds required the town to hire an independent auditor.

In its lawsuit, however, Dixon contends that CliftonLarson continued to do the annual audit and get paid for it, while hiring a sole-practitioner CPA from nearby Sterling to sign off on the work, thereby preventing competitors from grabbing the business. CliftonLarson says it prepared only a bare-bones "compilation" of financials after 2005 to aid the new auditor, Samuel Card, 56, who also is a defendant.

"The type of audits our firm performed through 2005 and the compilation services provided since 2006 did not require the sort of detailed testing needed to uncover the fraud or a forensic investigation to determine if the city's Comptroller Rita Crundwell was fabricating invoices," CliftonLarson says in a statement. Having lost Dixon as a client, the audit firm says it is working with the city "as it seeks to discover all of the facts that will describe what has happened in this case."

Reached in his Sterling office, Mr. Card says, "All my comments can come from my attorney." Chicago lawyer Thomas Falkenberg of Williams Montgomery & John Ltd., who says he was retained by Mr. Card's unnamed insurance carrier, responds, "We're just going to let this litigation play out."

'TWO-MINUTE PHONE CALL'

In depositions in late 2012, Power Rogers attorney Devon Bruce produced CliftonLarson emails after 2005 that referred to the firm's "audit" of Dixon. Also entered into the record were invoices submitted by Ms. Crundwell supposedly from the Illinois Department of Transportation that lacked an IDOT heading or logo and, in one instance, carried a nonexistent date--Nov. 31, 2004.

"Had a two-minute phone call been made by a Clifton employee to the Illinois Department of Transportation regarding any of these false invoices, Rita Crundwell's theft would have been identified at that time," the lawsuit argues.

Mr. Bruce says that despite CliftonLarson's assertion that it stopped doing audit work for Dixon in 2005, city payments to the firm dipped only slightly and by fiscal 2008 were $15,000 higher than they had been in fiscal 2005.

During a Nov. 8 deposition in Dixon, Mr. Bruce quizzed retired CliftonLarson partner and Dixon office head Ronald Blaine about tax returns he prepared for Ms. Crundwell. Her 2007 return showed gross receipts of nearly $700,000 for which Mr. Blaine could not recall demanding or receiving documentation. When she was arrested in April, he testified, "We had the same shock and awe as everybody else in the city did."

Mr. Blaine did not return a call to his Dixon home.

Power Rogers & Smith Settles Lawsuit for $1.8 Million on behalf of Worker Struck by Falling Object on Chicago Loop Construction Site

Wed, 12 Dec 2012 09:00:00 -0600

A Chicago-area man was severely injured while working as an elevator mechanic at a construction site located in the downtown Chicago loop in the early Fall of 2008. Recently, the man's lawyers settled the case for $1.8 million dollars. On September 5th, 2008, the Plaintiff was working inside an elevator shaft located on the 14th floor of the site, when a piece of metal stair rail, weighing approximately 85 pounds, fell from several floors above and struck the Plaintiff's head and neck. Although the Plaintiff was wearing his hard hat, the impact caused him to suffer a traumatic brain injury and multiple cervical and thoracic fractures.

The Plaintiff was represented by Todd A. Smith and Devon C. Bruce of Power Rogers & Smith, P.C. Smith and Bruce filed a complaint against the general contractor and a number of subcontractors on the construction site, alleging that the Defendants were negligent in abandoning the piece of stair rail that ultimately struck the Plaintiff. The stair rail remained on the 30th floor for weeks before is fell through the elevator shaft. Industry custom and practice, as well as OSHA regulations regarding good housekeeping principles, require that this abandoned stair rail should have been removed from the construction site long before it injured the Plaintiff. Additionally, the Plaintiff alleged that the protective barriers around the elevator shaft were inadequate and in violation of OSHA regulations. Specifically, the Defendant chose to use netting instead of a solid wooden barrier. Not only was the netting itself a violation of OSHA standards, but the netting was also inadequately affixed to the elevator shaft.

The complaint included res ipsa loquitur counts against the Defendants based on the fact that the Defendants were 1) in control of the construction site, the barriers around the shaft and the abandoned stair rail, and 2) that absent negligence a stair rail is not caused to fall down an elevator shaft.

Mr. Bruce commented, "This case involved clear acts of negligence. Had OSHA standards been followed, the metal rail would not have been permitted to remain in the construction area in the first place and the elevator shaft would have been properly protected. We were happy to come to a settlement agreement that would compensate the Plaintiff for all the medical care, pain and suffering he has had to endure."

Chicago Lawyer Names Power Rogers & Smith as Top Finisher in its 2012 Settlement Survey

Mon, 08 Oct 2012 09:00:00 -0600

Power Rogers & Smith tops the list for highest number of settlement dollars again in 2012, according to the Chicago Lawyer Annual Settlement Survey.* This is the third consecutive year in which Power Rogers & Smith has earned the #1 spot. In fact, Power Rogers & Smith has been ranked first in the Chicago Lawyer Annual Settlement Survey in 7 of the last 13 years, exceeding the qualifying settlements of its closest competitor by over $350 Million since the year 2000.

Joseph A. Power, Jr. and Larry R. Rogers, Sr., founding partners of Power Rogers & Smith, and Steven E. Garstki of Stoller & Garstki earned the highest individual settlement of 2012 for their client Juan Diaz. Mr. Diaz was rendered a quadriplegic when a semitrailer truck driver slammed into the back of Mr. Diaz's van at a speed upwards of 60 miles per hour. The incident occurred in June of 2008, and on the eve of trial several years later, the defendant driver and trucking company admitted liability for the crash and the parties went to trial solely for a determination of damages. During trial, the parties agreed on a high-low settlement arrangement that created a $25 Million floor and a $50 Million ceiling. Ultimately, the jury returned a verdict of $23 Million, moving the award to a settlement of $25 Million. Power commented "Juan sustained monumental injuries in this crash and the settlement will ensure that he receives the medical attention that he requires for the rest of his life."

Todd A. Smith, founding partner of Power Rogers & Smith, and Brian LaCien, had the fourth-highest individual settlement of 2012, when they settled a case on behalf of Gabriella Cedillo for $18.5 Million. Ms. Cedillo suffered severe brain damage when she was serving as an extra during the filming of Transformers: Dark Side of the Moon." The injury occurred when Ms. Cedillo was driving on one side of a divided highway when a stunt, moving toward her on the opposite side of the highway, failed sending a cable and large metal bracket careening into the opposing lane, smashing through Ms. Cedillo's windshield and into her head. After moths spent in the hospital and in rehabilitation, Ms. Cedillo is able to walk, talk and feed herself, but the brain damage associated with her head injury causes her to experience constant emotional highs and lows, to hallucinate and hear voices.

*All settlements included in the Chicago Lawyer 2012 Chart were published in the Jury Verdict Reporter or Chicago Daily Law Bulletin between July 1, 2011 and June 30, 2012. The chart only includes settlements that exceed $2 Million.

References:

Chicago Lawyer 2012 Settlement Survey, Chicago Lawyer, By Amanda Robert.

Going Behind the Scenes on Large-scale Settlements, Chicago Lawyer, By Roy Strom.

Power Rogers & Smith Files New Wrongful Death Action in Litchfield, Illinois Megabus Crash

Tue, 25 Sep 2012 09:00:00 -0600

On September 25, 2012, Larry R. Rogers of the Chicago personal injury law firm of Power Rogers & Smith, P.C. filed another lawsuit stemming from the Megabus crash that occurred just outside of St. Louis, Missouri on August 2, 2012. The Complaint at Law was filed in the Circuit Court of Cook County on behalf of a mother and father, who sustained serious injuries in the crash, and on behalf of their daughter, a doctor, who was killed in the crash.

On August 2, a Megabus traveling toward St. Louis veered off the road, careening into a concrete pillar and injuring over half of the passengers on board. The complaint includes claims for wrongful death and survival on behalf of the estate of the daughter. Additionally, the complaint contains claims for negligence and infliction of emotional distress on behalf of the parents that survived after witnessing the death of their daughter. The Plaintiffs assert that Megabus is responsible for the crash for failing to properly maintain and inspect the bus and its tires. Additionally, the Plaintiffs believe that the bus driver, Preston Taylor, was negligent in his operation of the bus in failing to keep a proper look out and failing to operate the bus at a reasonable speed with regard to the conditions on the highway.

The Plaintiffs are represented by Joseph A. Power, Jr., Larry R. Rogers and Devon C. Bruce of Power Rogers & Smith, P.C. Rogers commented, "As passengers on a common carrier, under Illinois law, Megabus owed the Avhads the highest duty of care. Had Megabus upheld this duty, Dr. Avhad would still be with us today."

Previously, an Order preserving all material including video, data from the black box and all reports and witness statements was entered by Judge Flanagan on August 14, 2012. The Order also preserves evidence from an August 8, 2012 crash near Atlanta where another Megabus suffered a tire blow-out before catching on fire.

Power Rogers & Smith Files Lawsuit and Protective Order in Downstate Illinois Megabus Crash

Wed, 15 Aug 2012 09:00:00 -0600

On August 2, 2012, a Megabus carrying 81 passengers from Chicago to St. Louis slammed into a concrete bridge support pillar about 55 miles northeast of St. Louis. Forty-seven people were injured in the crash and one passenger died as a result of her injuries. The cause of the crash is being investigated, but early reports suggest that a blown tire may have caused the bus driver to lose control and veer off of the road.

Joseph A. Power, Jr. of the Chicago law firm Power Rogers & Smith, P.C. filed a lawsuit on August 14th on behalf of five of the Megabus passengers injured in the crash. Among them, a 24-year-old Columbia College Student and Detroit native, suffered two broken legs, fractures to his arm, hip and pelvis, and a crushed ankle and heel. Additionally, Mr. Power filed a lawsuit on behalf of a mother, her two young sons, and a female relative. One son was more seriously hurt than his other family members, and is left with a broken shoulder, wrist, ankle and leg, Power said.

In the complaint filed in the Circuit Court of Cook County, the Plaintiffs contend that Megabus was negligent in failing to properly maintain and inspect the bus and its tires. Additionally, the Plaintiffs believe that the bus driver, Preston Taylor, was negligent in his operation of the bus both before and after the blow out.

In addition to the complaint, Power immediately filed a Motion to obtain a Protective Order before Cook County Circuit Court Judge Kathy Flanagan, which seeks to protect and preserve evidence from the crash. Power commented, "Preservation of evidence in this case is critical. If the evidence is lost - for example, the blown out tire - the Plaintiff will have a much more difficult time proving his claim and understanding how this tragedy occurred. That is why it is imperative that we moved for a Protective Order immediately upon filing this lawsuit."

References:

"Three lawsuits now filed against Megabus over Downstate crash," LeeAnn Shelton, Chicago Sun-Times, August 14, 2012.

Joseph A. Power, Jr. Receives the Champion of Justice Award from Public Justice

Wed, 01 Aug 2012 09:00:00 -0600

On Tuesday, July 31st, 2012, Joseph A. Power, Jr., a founding partner of Power Rogers & Smith, P.C., was presented with the prestigious "Champion of Justice" Award from Public Justice.

Public Justice is a national, not-for-profit public interest law firm. Supported by the Public Justice Foundation, Public Justice is committed to ensuring access to the courts, protecting citizens' civil rights, protecting consumers' rights and workers' rights, as well as promoting public health and food safety, ensuring environmental standards are followed and inspiring other lawyers to serve the public interest. The foundation is supported by lawyers, law professors, law students, public interest professionals, and others who are dedicated to justice. Mr. Power served as the President of Public Justice from 1998 to 1999 and during his term helped establish the Foundation's west coast office in Oakton, California.

July 31st marked the 30th Anniversary of Public Justice, and the Foundation celebrated the milestone by honoring members and supporters at a Gala and fundraising event at Union Station in downtown Chicago, Illinois.

Mr. Power, was honored at the Gala and presented with the "Champion of Justice" Award, Public Justice Foundation's highest honor. He was applauded for, among other things, his role in uncovering a bribery scandal involving trucking licenses that resulted in 76 criminal convictions, including that of then-Illinois Governor George Ryan. Power's clients in that case recovered a record $100,000,000.00, the highest in a trucking case, as compensation for the death of the minister-Plaintiff's six children. The case also triggered the retesting of over 2000 truck drivers, thereby protecting the safety of all citizens using Illinois roadways.

Governor Pat Quinn attended the Gala and provided brief remarks before the evening's awards program began. Governor Quinn specifically recognized Power's contributions not only to the practice of law but also to fighting against those who attempt to deny injured persons their day in court and holding government and other powerful interests accountable. "Public Justice's mission involves standing up to injustice and fighting for the little guy, and for that reason there is no person more deserving of this honor than Joe Power," said Todd A. Smith, another founding partner of Power Rogers & Smith.

DePuy Hip Implant Lawsuit Moves Forward for Illinois Plaintiffs

Thu, 19 Jul 2012 09:00:00 -0600

During the last two years, Plaintiffs from all over Illinois, from Chicagoland to Rockford, have filed complaints against DePuy Orthopaedics ("DePuy") for its role in designing, manufacturing, marketing and distributing faulty hip implants that led to serious and permanent injuries. Devon C. Bruce of Power Rogers & Smith is representing nine of these Illinois Plaintiffs.

DePuy is a multi-national company owned by Johnson & Johnson that sells products used for repairing and reconstructing joints and other portions of the skeleton. According to The New York Times, it is the largest maker of replacement hips worldwide. And, according to DePuy's website, in August of 2010 it issued a voluntary recall of its hip implants called "ASRs." These ASRs first became available in July of 2003 and remained on the market for 7 years despite mounting research indicating that these ASR implants were unsafe and caused permanent injuries to their users.

The ASRs manufactured by DePuy belong to a category of devices known as "metal-on-metal" implants. Such implants caused concern when it was realized that they generate large amounts of metallic debris during use.

This debris, floating free in a patient's system, can cause severe and permanent damage to muscles and other soft tissues. (See Reference 2, below.) In fact, some surgeons reported finding masses of dead tissue around patients' hip joints when performing surgery to replace the faulty implant. (See Reference 1, below.)

According to certain reports, such as this article that appeared in The New York Times, the ASR hip implant was approved by the Food and Drug Administration ("FDA") because of a loophole in the FDA's approval system. Whereas new products are required to undergo a series of clinical trials before receiving approval from the FDA, an implant, such as DePuy's ASR implant, can be sold without extensive testing if it resembles one that is already in use. Experts criticize this exception to the FDA's general standard because it allows certain untested components to gain approval and be distributed to the general public before it is determined that they are safe for implantation. (See Reference 1, below.)

For some, the faulty ASR implant required additional painful procedures in which the device was surgically replaced with another implant. For others, however, the damage to bone, muscles and nerves left them with permanent disability. In the case of Mr. Bruce's clients, the damage was severe and included extreme pain, permanent scarring and toxic levels of cobolt and chromium in patients' blood. Mr. Bruce commented, "our clients made the decision to have a hip replacement in order to alleviate the pain and dsiability they were experiencing, only to find that the implant they received would cause them even greater injury and, in some cases, permanent disability." He added, "Had DePuy tested this metal-on-metal implant according to industry standards, the implant's defects could have been discovered and all of these injuries could have been avoided."

The cases are currently pending in multidistrict litigation in the Northern District of Ohio and the parties are undergoing discovery in order to determine how much DePuy knew regarding the ASR's faulty design at the time it was first marketed to the public.

References:

1. "The Implants Loophole," The New York Times, Barry Meier (December 15, 2010).

2. "With Warning, a Hip Device Is Withdrawn," The New York Times, Barry Meier (March 9, 2010).

Chicago-Area Firm Files Lawsuits in Afghanistan Flight 1102 Aviation Disaster

Mon, 18 Jun 2012 09:00:00 -0600

On May 17, 2010, Pamir Airways flight 1102 crashed in a remote area of the Parwan Province, approximately 20 nautical miles outside of Kabul International Airport. The flight, which had 43 people on board, was traveling from Kunduz in northern Afghanistan to the capital of Kabul. All 43 passengers died when the plane crashed into a mountain while descending for approach and landing at the airport.

Reports compiled by the Ministry of Transport and Civil Aviation determined that the cause of the aviation disaster was the failure of the captain to maintain adequate vertical and horizontal clearance while under controlled flight. Another causal factor indicated by the Ministry was the Flight Safety Department's failure to oversee the plane's unsafe altitude and notify the captain in a timely matter.

On May 14, 2012, the Chicago law firm of Power Rogers & Smith filed 25 Complaints at Law against Midwest Air Traffic Control, Honeywell International, Inc., Jeppesen Sanderson, Inc. and the Boeing Company. The complaints include causes of action for negligence and strict products liability against each defendant. Specifically, the Plaintiffs' Estates allege that Midwest Air Traffic Control was negligent in failing to monitor the flight altitude of the plane and failing to provide any warnings to the captain of Flight 1102 that he was descending below the minimum safe altitude for the mountainous area near Kabul. The Plaintiffs further allege that Honeywell, Jeppesen and Boeing were negligent and strictly liable for their roles in designing, manufacturing and installing faulty Enhanced Ground Proximity Warning System ("EPGWS") technology. EPGWS is used to provide ground proximity warnings to pilots by using the aircraft's position information, speed and terrain/obstacle databases. These warnings enable a pilot to assess a plane's positioning and, when necessary, adjust a plane's altitude in order to avoid any hazards.

The case is being handled by partner Todd A. Smith and associates Brian LaCien and Jonathan M. Thomas. "It's a tragedy," said Mr. Thomas. "Had the flight center adequately monitored the altitude of the flight, this disaster could have been avoided and 43 lives could have been saved." Mr. Smith added, "Pilots and passengers alike rely on the abilities of safety control companies and manufacturers of safety control technology. When one of both of these safeguards fail, pilots and airline passengers are in a perilous situation."

Cook County Court Approves $18.5 Million Settlement in Gabriela Cedillo's Transformers 3 Lawsuit

Thu, 24 May 2012 09:00:00 -0600

On Wednesday, May 23, 2012, the Honorable Drella Savage, a Law Division Judge in the Circuit Court of Cook County, Illinois, entered an Order approving the settlement in the case of Gabriella Cedillo, 26, who was severely injured when she was an "Extra" on the set of Transformers 3.

On September 1, 2010, on a vacated portion of Cline Avenue in Hammond, Indiana, the
Transformers 3 movie was being filmed. Stunts were being performed using explosives and rigged vehicles in the eastbound lane while "extras," driving in their own cars, were driving in the westbound lane of the roadway. Gabriela Cedillo was among the 80 extras on set, who were driving in the westbound lanes.

The stunt that caused Gabriela's injury was attempting to create the illusion of a powerful explosion involving two vehicles. The stunt involved two vehicles that were being towed by a flatbed truck and were rigged with a cable, which was welded to the back of the car. Had the stunt been performed properly, it should have involved the detonation of explosive devices, causing the front of the car to fly up in the air, followed immediately by a sharp pulling of the cable welded to the back underside of the car, in order to cause the car to flip over backwards.

On the day in question, the bracket welding on the eastbound stunt vehicle failed, causing a portion of the metal weld to fly into the oncoming lanes and strike Gabriela's car's hood, windshield, and eventually her head. The damage caused to Gabriela's vehicle is pictured below.

On the date of the occurrence, no permits for the use of fireworks and explosives had been secured by Michael Bay or the production company. On August 31st, the day before the tragedy, the same stunt failed, and evidence indicated that the production team made hurried alterations to prepare replacement vehicles to re-attempt the stunt the next day. As a result, a completely inadequate superficial weld had been applied in a failed effort to secure the new bracket to the replacement car.

Gabriela suffered severe open head trauma which resulted in her hospitalization and has left her with significant cognitive and physical impairments. Nearly a third of her skull and a portion of her brain were taken off when the metal weld struck her. She recently underwent another surgery in order to replace the missing portion of her skull with a metal plate.

The day after this tragedy, Paramount Pictures and DreamWork's Studios publicly announced that they would take care of Gabriela's medical bills and provide for her medical care. "In reality, these companies did everything they could to avoid payment," said Gabriela's attorney, Todd A. Smith of Power Rogers & Smith, P.C. As a result, Gabriela was forced onto public aid, with the taxpayers picking up the bill, in order to pay for her nearly $800,000.00 worth of medical bills. As a means of comparison, the Transformers 3 movie reportedly grossed over $1,000,000,000.00 world-wide.

"This settlement will provide Gabi with the medical care and in-home support that she needs," said Mr. Smith. Gabriela's family says they are hopeful that her condition will continue to improve, but they know she has a long road ahead of her.

References:

$18.5M settlement in 'Transformers' accident by Maudelyne Ihejirika, Chicago Sun-Times, May 24, 2012.

Movie extra gets $18.5M in suit by Jim Jaworski, Chicago Tribune, May 24, 2012.

Supreme Court Rule 243 Allowing Jurors to Question Witnesses Goes into Effect July 1, 2012

Mon, 14 May 2012 09:00:00 -0600

On July 1, 2012, Supreme Court Rule 243 will go into effect. This addition to the Illinois Supreme Court Rules will permit jurors in civil cases to ask questions of witnesses. While the practice was never specifically prohibited, and some judges took the liberty of allowing jurors to ask questions when counsel for both parties consented, the imposition of the rule may have a substantial effect on the way civil trials proceed.

The rule works like this: during trial, once a witness has been questioned by both parties, a judge can decide whether to allow jurors to submit written questions to be asked of that particular witness. If the judge determines that juror follow-up questions are appropriate, then he will receive the written questions and they will be marked as exhibits and made a part of the record. Jurors will not be required to submit questions, but, if they choose to do so, they can submit multiple written questions.

Next, outside the presence of the jury, the judge will share the questions with counsel for both parties and allow the attorneys to object to the admission of certain questions. Then, the judge will rule on whether the question should be admitted, stricken or modified in some way.

Questions that are deemed admissible will be read to the witness by the court. The court will instruct the witness to limit her answers to the exact question posed. Counsel for both parties will be permitted the opportunity to ask follow-up questions of the witness.

The new rule has been met with mixed sentiment. Some, such as the Illinois Trial Lawyers Association, hail the rule as innovative and believe that it will lead to better juror comprehension and will empower jurors by providing them with a voice during the trial proceedings. Similarly, Chief Justice Thomas Kilbride of the Illinois Supreme Court believes the rule will lead to increased juror comprehension of and attention to the evidence.

Some warn that the rule may lead to unwanted speculation by jurors into areas that were specifically prohibited during motions in limine due to their irrelevant or prejudicial effect on the legal issues before the jury.

Joseph W. Balesteri, a partner at Power Rogers & Smith, who concentrates his practice in the area of medical negligence, commented: "The most important people in a trial, the jurors, should be allowed to ask questions when the judge finds it appropriate, especially in a complex case." Todd A. Smith, named partner at Power Rogers & Smith, echoed these sentiments, stating: "Allowing jurors to ask questions of witnesses encourages juror engagement and provides lawyers with useful insight to ensure jurors understand the issues in the case. We look forward to the cautious implementation of the rule."

References:

Illinois Supreme Court to allow juror questions in civil trials, The Daily Herald, by Barbara Vitella, April 3, 2012.
Court will allow jury questions, Chicago Daily Law Bulletin, by Josh Weinhold, April 3, 2012.
Juror Participation, Chicago Tribune, by Jerry Latherow, April 18, 2012.

Stephenson County, Illinois Shooting Lawsuit Update

Tue, 24 Apr 2012 09:00:00 -0600

On Easter Sunday, April 4, 2010, William Scott entered the home of his ex-wife, Annette Scott, and shot both Annette and her boyfriend, Rollin Dunham, before returning to his home and shooting himself in the head. Both Annette and William died from their injuries, but Rollin survived a gunshot to the abdomen and another to the lower leg.

At the time of the shooting, Annette had an Order of Protection on file with the Stephenson County, Illinois Sheriff's Department. Annette had previously filed multiple Orders of Protection against William based on claims of domestic abuse, threats and stalking behaviors. Additionally, Annette called the Sheriff's Department and filed numerous complaints relating to violations of these Orders of Protection. In fact, in the two weeks preceding the tragic events of April 4, 2010, Annette Scott had reported at least four violations of her recently-filed Order of Protection.

Orders of Protection were created as a provision in the Illinois Domestic Violence Act of 1986. The stated purpose of the Act is to "recognize domestic violence as a serious crime against the individual and society which . . . promotes a pattern of escalating violence which frequently culminates in intra-family homicide. . . ." 750 ILCS 60/102(1). Under Illinois law, a violation of an Order of Protection is considered a misdemeanor; however a repeat violation of an Order of Protection is considered a felony. 720 ILCS 5/12-30.

On November 9, 2010, Rollin Dunham and the Estate of Annette Scott filed a lawsuit against the Stephenson County Sheriff's Office. The Complaint contains allegations that the Sheriff's Office failed to protect Annette and Rollin by failing to investigate the reported violations of the Orders of Protection, by failing to divest William of his firearms despite knowledge that he possessed several, and failing to arrest William despite his commission of multiple felonies.

"Despite William's well-known reputation for violence and his repeated violations of the law, the Sheriff and his deputies failed to arrest him. If they had taken the proper action and arrested William, this tragedy would not have happened," said Devon C. Bruce of Power Rogers & Smith, P.C., who is representing the Plaintiffs.

The case is currently pending before the Honorable Judge Jeffrey of the Stephenson County Circuit Court. The parties are currently in the discovery phase of litigation attempting to determine the extent of the Sheriff Department's knowledge regarding William Scott as well as their policies and procedures for handling violations of Orders of Protection.

References:
"Orangeville shooting lawsuit moves forward; Sheriff's office sued in wake of tragedy," The Journal-Standard, by Travis Morse, April 19, 2012