Voir Dire — a Plaintiff’S Perspective — Page 5

First Quarter 2009 l Volume 19, Number 1 l ISSN-1094-9542

MONOGRAPH

Defending the Insurance Producer: Duties, Proximate Cause Defenses and Avoiding Punitive Damages

FEATURE ARTICLES

Voir Dire — a Plaintiff’s Perspective — Page 5

Voir Dire — a Defense Perspective — Page 8

Smith v. Waukegan Park District: Tort Immunity No Longer Available for Governmental Entities in Defense of Certain Retaliatory Discharge Claims — Page 22

The Appellate Court Administers a Healthy Dose of Common Sense to the Vehicle Photograph Admissibility Issue — Page 32

Racking Up Attorney Fees Under the Illinois Consumer Fraud Act: Simple Solutions to Prevent Attorney Abuse — Page 44

Significant Changes in the Americans with Disabilities Act — Page 63

Mikolajczyk v. Ford Motor Company: A Synthesis of Approaches in Design Defect Cases — Page 71 Illinois Association of IDC QUARTERLY EDITORIAL BOARD Defense Trial Counsel Al J. Pranaitis, Editor-In-Chief Sarah J. Condon, Associate Editor WWW.IADTC.ORG Hoagland, Fitzgerald, Smith & Pranaitis, Alton CNA Insurance, Chicago [email protected] [email protected] PRESIDENT William K. McVisk, Executive Editor Donald J. O’Meara, Jr., Assistant Editor GREGORY L. COCHRAN McKenna Storer, LLC, Chicago Johnson & Bell, Ltd., Chicago Pretzel & Stouffer, Chartered, Chicago [email protected] [email protected] PRESIDENT-ELECT RICK L. HAMMOND Adnan A. Arain, Associate Editor Geoffrey M. Waguespack, Assistant Editor Johnson & Bell, Ltd., Chicago Aon, Chicago Cremer, Shaughnessy, Spina, Jansen & 1ST VICE PRESIDENT [email protected] Siegert LLC, Chicago KENNETH F. WERTS [email protected] Craig & Craig, Mt. Vernon 2ND VICE PRESIDENT ANNE M. OLDENBURG COLUMNISTS Alholm, Monahan, Klauke, Hay & Oldenburg, LLC, Chicago Edward J. Aucoin, Jr. Jennifer B. Groszek SECRETARY/TREASURER Pretzel & Stouffer, Chartered, Chicago Gunty & McCarthy, Chicago R. HOWARD JUMP Jump & Associates, P.C., Chicago Beth Ann Bauer Peter R. Jennetten Hepler, Broom, MacDonald, Hebrank, Quinn, Johnston, Henderson & Pretorius, Peoria DIRECTORS DAVID M. BENNETT True & Noce, LLC, Edwardsville Kevin J. Luther Pretzel & Stouffer, Chartered, Chicago James K. Borcia Heyl, Royster, Voelker & Allen, Rockford TROY A. BOZARTH Hepler, Broom, MacDonald, Hebrank, Tressler, Soderstrom, Maloney Martin J. O’Hara True & Noce, LLC, Edwardsville & Priess, LLP, Chicago Much Shelist Denenberg Ament & C. WM. BUSSE, JR. Roger R. Clayton Rubenstein, P.C., Chicago Busse, Busse & Grassé, P.C., Chicago MARGARET M. FOSTER Heyl, Royster, Voelker & Allen, Peoria Al J. Pranaitis McKenna Storer, LLC, Chicago Gregory L. Cochran Hoagland, Fitzgerald, Smith & Pranaitis, Alton BARBARA FRITSCHE McKenna Storer, Chicago Gregory C. Ray Rammelkamp Bradney, Jacksonville LINDA J. HAY Thomas G. DiCianni Craig & Craig, Mattoon Alholm, Monahan, Klauke, Hay & Ancel, Glink, Diamond, Bush, DiCianni Michael L. Resis Oldenburg, LLC, Chicago DAVID H. LEVITT & Krafthefer, P.C., Chicago SmithAmundsen LLC, Chicago Hinshaw & Culbertson LLP, Chicago Margaret M. Foster Tracy E. Stevenson KEVIN J. LUTHER McKenna Storer, Chicago Robbins, Salomon & Patt, Ltd., Chicago Heyl, Royster, Voelker & Allen, Rockford JOHN P. LYNCH, JR. Stacy Dolan Fulco Willis R. Tribler Cremer, Shaughnessy, Spina, Jansen Cremer, Shaughnessy, Spina, Tribler Orpett & Meyer, P.C., Chicago & Siegert LLC, Chicago Jansen & Siegert LLC, Chicago Geoffrey M. Waguespack PAUL R. LYNCH Craig & Craig, Mt. Vernon Christopher M. Garcia Cremer, Shaughnessy, Spina, WILLIAM K. McVISK Boggs, Avellino, Lach & Boggs, LLC Jansen & Siegert LLC, Chicago Johnson & Bell, Ltd., Chicago R. MARK MIFFLIN St. Louis, MO Giffin, Winning, Cohen & Bodewes, P.C., Springfield FRED B. MOORE CONTRIBUTORS Lawrence, Moore, Ogar & Jacobs, Bloomington Ali Ryan Amin Martin K. Morrissey BRADLEY C. NAHRSTADT Hinshaw & Culbertson, LLP, Chicago Reed, Armstrong, Mudge & Morrissey, P.C., Williams, Montgomery & John, Ltd., Chicago Mark H. Chu Edwardsville MICHAEL L. RESIS Thomas, Mamer & Haughey, LLP, Champaign David B. Mueller SmithAmundsen LLC, Chicago Jared K. Clapper Cassidy & Mueller, Peoria JOHN W. ROBERTSON Robertson, Wilcox, Alcorn, Karlin & SmithAmundsen LLC, Chicago Robert W. Neirynck Statham, P.C., Galesburg Tamara K Hackmann Costigan & Wollrab, P.C., Bloomington ALEEN R. TIFFANY Aleen R. Tiffany, P.C., Crystal Lake Heyl, Royster, Voelker & Allen, Urbana Jesse A. Placher ROBERT T. VARNEY Katherine K. Haussermann Heyl, Royster, Voelker & Allen, Peoria Robert T. Varney & Associates, Bloomington Cremer, Shaughnessy, Spina, Kristin Dvorsky Tauras EXECUTIVE DIRECTOR Jansen & Siegert LLC, Chicago McKenna Storer, Chicago Sandra J. Wulf, CAE, IOM Thomas Q. Keefe, Jr. Panos T. Topalis Belleville Tribler Orpett & Meyer, P.C., Chicago PAST PRESIDENTS: Royce Glenn Rowe • James Baylor • Jack E. Horsley • John J. Schmidt •Thomas F. Bridgman • William J. Voelker, Jr. • Bert M. Matthew C. Koch Richard T. Valentino Thompson • John F. Skeffington • John G. Langhenry, Jr. • Lee W. Ensel • L. Bow Pritchett • John F. White • R. Lawrence Storms • John P. Ewart • Marwedel, Minichello & Reeb, P.C., Chicago SmithAmundsen LLC, Chicago Richard C. Valentine • Richard H. Hoffman • Ellis E. Fuqua • John E. Guy • David E. Krchak Jennifer L. Wolfe Leo M. Tarpey • Willis R. Tribler • Alfred B. LaBarre • Patrick E. Maloney • Robert V. Dewey, Jr. • Lawrence R. Smith • R. Michael Henderson • Paul L. Thomas, Mamer & Haughey, LLP, Champaign Cassidy & Mueller, Peoria Price • Stephen L. Corn • Rudolf G. Schade, Jr. • Lyndon C. Molzahn • Daniel R. Formeller • Gordon R. Broom • Clifford P. Mallon • Anthony J. Tunney • Kenneth M. Lubinski Alana Zusis Douglas J. Pomatto • Jack T. Riley, Jr. • Peter W. Brandt • Charles H. Cole • Gregory C. Ray • Jennifer Jerit Johnson • Stephen J. Heine • Glen E. Amundsen Busse, Busse & Grassé, P.C., Chicago SmithAmundsen LLC, Chicago • Steven M. Puiszis • Jeffrey S. Hebrank

The IDC Quarterly is the official publication of the Illinois Association of Defense Trial Counsel. It is published quarterly as a service to its members. Subscriptions for non-members are $75 per year. Single copies are $20 plus $2 for postage and handling. Requests for subscriptions or back issues should be THE ILLINOIS ASSOCIATION OF DEFENSE TRIAL COUNSEL sent to the Illinois Association of Defense Trial Counsel headquarters in Spring- P.O. Box 3144 • Springfield, IL 62708-3144 field, Illinois. Subscription price for members is included in membership dues. 800-232-0169 • 217-585-0991 • FAX 217-585-0886 • [email protected] SANDRA J. WULF, CAE, IOM, Executive Director In This Issue

Monograph M-I Defending the Insurance Producer: Duties, Proximate Cause Defenses and Avoiding Punitive Damages, by Matthew C. Koch, Panos T. Topalis, and Tamara K. Hackmann

Feature Articles 5 Voir Dire — a Plaintiff’s Perspective, by Thomas Q. Keefe, Jr. 8 Voir Dire — a Defense Perspective, by Robert W. Neirynck 22 Smith v. Waukegan Park District: Tort Immunity No Longer Available for Governmental Entities in Defense of Certain Retaliatory Discharge Claims, by Mark H. Chu 32 The Appellate Court Administers a Healthy Dose of Common Sense to the Vehicle Photograph Admissibility Issue, by Martin K. Morrissey 44 Racking Up Attorney Fees Under the Illinois Consumer Fraud Act: Simple Solutions to Prevent Attorney Abuse, by Jared K. Clapper and Alana Zusis 63 Significant Changes in the Americans with Disabilities Act, by Kristin Dvorsky Tauras 71 Mikolajczyk v. Ford Motor Company: A Synthesis of Approaches in Design Defect Cases, by David B. Mueller and Jennifer L. Wolfe Regular Columns 84 Amicus Committee Report, by Michael L. Resis 14 Civil Practice and Procedure, by Kenneth M. Lubinski 60 Commercial Law, by James K. Borcia 83 The Defense Philosophy, by Willis R. Tribler 50 Diversity, by Margaret M. Foster 61 E-Discovery, by Peter R. Jennetten 4 Editor’s Note, by Al J. Pranaitis 38 Employment Law, by Geoffrey M. Waguespack 81 Health Law, by Roger R. Clayton and Jesse A. Placher 95 IDC Membership and Committee Applications 89 IDC New Members 91 IDC Spring Defense Tactics Seminar Registration 41 Insurance Law, by Ali Ryan Amin 51 Legislative Update, by Gregory C. Ray 19 Medical Malpractice, by Edward J. Aucoin, Jr. 25 Municipal Law, by Thomas G. DiCianni 88 Notice of Election 2 President’s Message, by Gregory L. Cochran 69 Professional Liability, by Martin J. O’Hara 57 Property Insurance, by Tracy E. Stevenson 27 Recent Decisions, by Stacy Dolan Fulco and Katherine K. Haussermann 16 Supreme Court Watch, by Beth Ann Bauer 53 Technology Law, by Christopher M. Garcia 66 Workers’ Compensation, by Kevin J. Luther 86 Young Lawyers Report, by Jennifer B. Groszek

Manuscript Policy Members and other readers are encouraged to submit manuscripts for possible publication in the IDC Quarterly, particularly articles of practical use to defense trial attorneys. Manuscripts must be in article form. A copy of the IDC Quarterly Manuscript Guidelines is available upon request from The Illinois Association of Defense Trial Counsel office in Springfield, Illinois. No compensation is made for articles published, and no article will be considered that has been submitted simultaneously to another publication or published by any other publication. All articles submitted may be subjected to editing and become the property of the IDC Quarterly, unless special arrangements are made. Statements or expression of opinions in this publication are those of the authors and not necessarily those of the Association or Editors. A copy of the IDC Quarterly Editorial Policy is available upon request. Letters to the Editor are encouraged and welcome, and should be sent to the Illinois Association of Defense Trial Counsel headquarters in Springfield. Editors reserve the right to publish and edit all such letters received and to reply to them. IDC Quarterly, First Quarter, 2009, Volume 19, No. 1. Copyright © 2009 The Illinois Association of Defense Trial Counsel. All rights reserved. Reproduction in whole or in part without permission is prohibited. POSTMASTER: Send change of address notices to IDC Quarterly, The Illinois Association of Defense Trial Counsel, PO Box 3144, Springfield, IL 62708-3144. Second-Class postage paid at Springfield, IL and additional mailing offices. This publication was printed by Gooch & Associates, Springfield, Illinois. IDC Quarterly

■ The IDC will take positions on issues of significance to the defense bar and advocate and publicize those posi- President’s Message tions. ■ The IDC will promote and support the fair, expeditious and equitable resolution of disputes, including preservation and improvement of the jury system. By: Gregory L. Cochran ■ The IDC will increase its role as the voice of the defense McKenna Storer bar of Illinois to make the IDC more relevant to its mem- Chicago bers and the general public.

The IDC recently found itself The recent controversy stems from an squared off against the Illinois State Bar Association (ISBA) for the first ISBA legislative proposal that would time in recent memory. Although one would not be surprised to find require the payment of prejudgment the IDC opposing the Illinois Trial Lawyers Association (ITLA) on any interest to successful plaintiffs in number of issues, one normally nearly all Illinois tort cases. would not expect the IDC to be at odds with the ISBA. After all, the In approving this proposal at the ISBA ISBA charter is completely neutral in describing the purpose of the organization. In contrast, the Assembly meeting on December 13, express purpose of the IDC is to serve the interests of the 2008, the ISBA turned its back on the defense bar, while ITLA’s express purpose is to represent the interests of the plaintiff bar. In fact, a large percentage of many ISBA members representing IDC members are also members of the ISBA. Several IDC members serve on the ISBA Assembly, and many others are defendants and other clients adversely actively involved in ISBA committees. affected by the proposal. The recent controversy stems from an ISBA legislative proposal that would require the payment of prejudgment interest to successful plaintiffs in nearly all Illinois tort cases. In approving this proposal at the ISBA Assembly meeting on December 13, 2008, the ISBA turned its back on the many The IDC drafted a position paper in opposition to the ISBA members representing defendants and other clients ISBA prejudgment interest proposal, which was circulated adversely affected by the proposal. The ISBA also acted in to all ISBA Assembly members in advance of their Decem- complete disregard for the current economic plight of Illi- ber 13 meeting. Nine former IDC presidents signed a State- nois citizens and employers. With Illinois citizens and em- ment in Opposition appended to the IDC position paper. The ployers already reeling from the growing economic crisis, paper detailed the many flaws in the proposed bill and its this time is particularly inappropriate to propose a measure underlying policy considerations. The proposal awards a that would hit Illinois citizens and employers square in the plaintiff prejudgment interest when “the party from whom pocketbook. money damages are sought” fails to make an adequate “offer The passage of the proposed prejudgment interest bill of settlement” within 120 days of responding to the plaintiff’s by the ISBA was not without a fight from the IDC. The IDC complaint. Should prejudgment interest be assessed against strenuously opposed the ISBA prejudgment interest proposal, a non-compliant adversary, interest accrues from “the date guided by the following three IDC core values: the party from whom money damages are sought is given written notice of the claim for money damages or the action

2 First Quarter 2009

or arbitration is filed, whichever is earlier, until the award or to plaintiff to accept a reasonable settlement offer. Nor did judgment is entered.” (The proposed statutory citation to this he explain why, if intended to provide prejudgment interest quotation is 735 ILCS 5/2-1303.1(a).) The assessment is on past damages, the proposal also awards prejudgment in- avoided only when the plaintiff’s award or judgment is less terest on future damages. These are just some of the many than or equal to the offer of settlement. The proposed bill flaws that the ISBA failed to address in approving the pro- exempts the payment of prejudgment interest in very limited posal. circumstances, which do not adequately correct or address any of the bill’s flaws. The IDC position paper identified multiple flaws in the proposal, including the following: Those of us engaged in insurance ■ Assesses prejudgment interest against a defendant if it defense work know that only a small does not make an adequate “offer of settlement” within a specific time frame, but fails to require plaintiff to pro- minority of insurance companies could vide defendant with timely information so defendant can ever rightfully be accused of the delay reasonably assess liability and damages; ■ Imposes mandatory prejudgment interest payments with- tactics alleged by the ISBA. out any prohibition on prejudgment interest for future or non-economic damages; ■ Overcompensates plaintiffs by failing to account for the reality that many plaintiffs are not out-of-pocket for most expenses; Robert Varney, an IDC Board member and a member ■ Fails to address the assessment of prejudgment interest of the ISBA Assembly, addressed the Assembly on behalf of in cases with multiple defendants; and the IDC. We all can be proud of the excellent job that Bob ■ Fails to impose a penalty on a plaintiff who fails to ac- did in representing the IDC on this very important issue. Bob’s cept a reasonable offer and then fails to obtain a judg- remarks focused on the fact that ISBA is chartered to serve ment more favorable than the offer. all members of the bar. Bob stated that the threshold question is whether the proposal represents the interests of the The stage was set when the ISBA provided each Assem- entire bar membership, answering that it clearly does not. bly member with a one-page summary beginning with the Bob also compared present day circumstances to 1983 when following statement: A prejudgment interest statute would prejudgment interest was previously proposed, pointing out encourage early settlement of litigation and discourage the that in 1983 we had double digit interest and much longer indifference shown by some insurance companies whose liti- court backlogs. gation tactic is to “delay, deny, and hope they die.” It became Many thanks to all of you who helped make the IDC increasingly clear from remarks made by Assembly mem- position known in the ISBA Assembly. The passage of the bers supporting the proposal that it is aimed at a small mi- ISBA prejudgment interest proposal by the Assembly means nority of insurance carriers that allegedly believe that it is to that it will be included in the ISBA legislative package for their advantage to delay the ultimate resolution of a claim. 2009/2010. Although the IDC was unable to defeat the ISBA This is a classic example of using a cannon to kill a mouse. proposal, our voice was heard loud and clear and we are now Those of us engaged in insurance defense work know that well positioned if the issue moves to the Illinois General only a small minority of insurance companies could ever Assembly. The IDC stands ready to join forces with other rightfully be accused of the delay tactics alleged by the ISBA. organizations in opposing this very plaintiff-friendly legisla- The plaintiff attorney who introduced the proposal for tive initiative in the General Assembly. We will keep you the ISBA legislation committee claimed that its purpose is to advised of future developments on this important issue. facilitate settlement and to remedy the problem of plaintiffs often having to wait three years to obtain a judgment for their past damages. He did not explain why, if designed to promote settlement, the measure fails to provide any incentive

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ber of suits pursued under that statute and the outcome of them. Rounding out the articles is Mark Chu’s analysis of a Editor’s Note recent Illinois Supreme Court decision that limits the scope of the immunities that protect local governmental entities and their employees.

By: Al J. Pranaitis Hoagland, Fitzgerald, Smith & Pranaitis Alton For the first time ever in our IDC Quarterly, within this edition we offer

Readers of our IDC Quarterly a pair of “point/counterpoint” articles usually find two, three, or, occasion- ally, four feature articles in one of on a subject, specifically on the topic our issues, in addition to the Mono- of voir dire in civil trials. graph and regular columns. Thus, I can say without hesitation that this is a special issue. Herein you will find an unprecedented seven feature articles. The Monograph, written by Matthew Koch, Panos Our readers asked for more em- Topalis, and Tamara Hackmann, offers a wealth of infor- phasis on “practical advice” and mation relative to defending suits against insurance produc- “practice tips.” Here you have a gold mine of analysis, ad- ers. vice and tips for virtually every area of civil practice. Then, of course, we have our always excellent columns. For the first time ever in our IDC Quarterly, within this Every reader will find several, if not all, of the columns to be edition we offer a pair of “point/counterpoint” articles on a very useful in his or her area of practice. Without discussing subject, specifically on the topic of voir dire in civil trials. all of the columns here, I do wish to bring your attention to By invitation, top notch litigators, Thomas Keefe, Jr. of two of them. Specifically, I draw your attention to the Re- Belleville, Illinois and Robert Neirynck of Bloomington, cent Decisions column of Stacy Dolan Fulco and the Legis- Illinois, have provided us with their insights and strategies lative Update column of Greg Ray, which analyze the No- for picking juries–Keefe from the plaintiff’s perspective and vember 25, 2008 plurality decision of the Illinois Supreme Neirynck from the defendant’s perspective. Whether you are Court in Ready v. United Goedecke Services, Inc. As dis- a jury trial rookie or a seasoned veteran, you will learn from cussed in the columns, a Petition for Rehearing in this case these valuable articles. has been filed in the supreme court. So, it remains to be seen Martin Morrissey has written an article for us on the what the final version of the decision will be. In the humble developing case law in the area of use of vehicle photographs opinion of this Editor, as presently written, the Ready deci- to disprove a plaintiff’s injury claim in a motor vehicle acci- sion is one of the most significant decisions in the area of dent suit. David Mueller and Jennifer Wolfe have given us personal injury and wrongful death litigation to come out of a detailed, analytical summary of the evolution of the Illi- the supreme court in the in the last 20 years. Arguably, it has nois Supreme Court opinions involving the “risk utility test” the potential to have as big of an impact on civil litigation in and the “consumer expectation test” in product liability liti- this State as did Kotecki v. Cyclops Welding Corp., 146 Ill. gation. 2d 155, 585 N.E.2d 1023 (1991), and Best v. Taylor Machine In their article, Jared Clapper and Alana Zusis have Works, 179 Ill. 2d 367, 689 N.E.2d 1057 (1997). detailed the subject of attorney fee awards under the Illinois I invite you to turn the pages, enjoy and learn. “Consumer Fraud Act.” In the area of employment discrimination litigation, Kristin Tauras has analyzed the recent, significant changes to the Americans with Disabilities Act. No doubt, these changes will significantly impact the num-

4 First Quarter 2009

Feature Article least a month in advance, to read the local paper online. Making a casual remark during voir dire, which reflects By: Thomas Q. Keefe, Jr. knowledge of local events, will blunt the notion that “you’re Belleville not from here.”

II. Your Client “Be yourself, who is better qualified?” Voir Dire — a Plaintiff’s Frank J. Giblin Lawyers make their living in a courtroom. Clients have Perspective never been in a courtroom. Try to remember the first time you appeared in court. It was daunting and intimidating. Now multiply that feeling times ten and you can imagine your Introduction client’s emotions. Your client must know that jurors will be watching her Much has been written about “how to” pick a jury. Ev- all the time—in the courtroom, the hallway, and the eleva- ery lawyer has his or her own style. In fact, there is no “one tors. She must remain constantly attentive to everything go- way” to do it: and there is “no way” anyone can effectively ing on in the courtroom. Jurors watch how your client lis- explain everything about “their way” in one short article. tens. She must listen respectfully. Barack Obama knew that; What follows are some thoughts from a lawyer who repre- John McCain and Al Gore did not. sents plaintiffs in serious injury and death cases. III. The Lawyer I. Research “If you try to be to sharp, you will cut yourself.” “As a general rule, the most successful man in life is the Italian proverb man who has the best information.” Connecting with prospective jurors is largely a God- Benjamin Disraeli given gift. If you genuinely like people, they will probably Smart lawyers begin selecting a jury well before the trial like you, and while the case is not about the lawyers, you begins. Too often, a lawyer’s first inkling of his prospective should never underestimate the importance of having jurors jury comes when the clerk hands him the names of the per- on your side. sons on his panel. Big mistake. In most jurisdictions the complete list of all jurors called for service is available well in A. Open-ended Questions advance. This gives you the opportunity to learn a lot about When I conduct voir dire, I avoid asking questions which your prospective panel. call for “yes” and “no” answers. You lead witnesses on cross- How a potential juror has voted is readily available at examination, and probably should not ask a question where the County Clerk’s office. Democrats tend to be good (Continued on next page) plaintiff’s jurors, and checking voter registration records may lead you to a “ringer,” i.e., a juror who appears to be a proto- type defense juror who has consistently voted Democratic About the Author his entire life. Another important source of information is the internet. There are several sites which can lead to valuable insights; Thomas Q. Keefe, Jr. practices in Belleville, Illinois, spe- cializing in Plaintiffs’ Personal Injury Litigation. Over the for example, www.PublicData.com; www.creative- course of his career he has more than 150 verdicts and settle- research.com; and www.absolutebackgroundsearch.com. ments in excess of one million dollars and several in excess of ten million dollars. Most recently he won a verdict of Often a simple Google search can be revealing, including a fourteen million dollars in the United States District Court blog search. You will be amazed how many people blog, and for the Southern District of Illinois. He has been voted a Leading Lawyer in both medical malpractice and products liability, and been even more amazed at what you can learn from Facebook named among the best lawyers in Illinois. He speaks frequently on various (www.facebook.com) and MySpace (www.myspace.com). trial topics, including St. Louis University Law School. If you are trying a case “out of town,” it is smart, for at

5 IDC Quarterly

Voir Dire – A Plaintiff’s Perspective (Continued) pect the jury will feel sympathy for my client, but that sym- you don’t already know the answer. But in voir dire, you pathy must be set aside, and the case must be decided on the must ask questions where you don’t already know the an- facts. swer. It is the very purpose of the exercise. No case is perfect. If it was, it would have settled. I al- Every time you ask a voir dire question, it should be ways discuss in voir dire my weaknesses. It steals my followed up with “why?” or “tell me more about that.” My opponent’s thunder and enhances my credibility. goal is to have a conversation and to involve as many panel Simply stated, I try to tell the jury everything my oppo- members in the conversation as possible. nent was going to tell them. I want to put my opponent in the If a juror gives me a favorable answer about large dam- unenviable position of either having to be repetitious or hav- age compensation, then I invite other jurors to disagree, al- ing to say nice things about my client and my case in order to ways asking them “why” or “tell me more.” appear fair. There is no such thing as “poisoning” a jury. I want hon- Finally, never forget, it is critical to stop talking before est answers, and I do respect different points of view. the jury stops listening.

IV. The Jury – Some Issues and Approaches “I was married by a judge. I should have asked for a Listening, not imitation, is the jury.” Groucho Marx A. Make Them Promise sincerest form of flattery. Most people believe in keeping their promises and are unhappy when promises are not kept. I often talk about my kids and how their mother and I taught them that they were only as good as their word. I tell the panel I am sure they B. Manners and Humility have taught that same lesson to their children. It is nice to be important; it is more important to be nice. I then ask every juror, individually, if they promise to Simply be polite, especially to courtroom personnel. The decide the case based only on the law, even if they don’t agree bailiff or court’s clerk will be that jury’s best friend by the with it. I then look right at my opponents and ask the juror time deliberations begin. whether my opponents can expect the same promise. Listening, not imitation, is the sincerest form of flattery. I remind the jury that all promises are solemn, especially When you listen to a juror’s answer, and ask pertinent fol- in a court of law. I tell them that if they are picked for this low-up questions, you validate that juror’s point of view. You jury, it is because the judge, my opponent, the parties and I are showing that person their answer matters. believe them when they made these promises. Listening well is a more powerful means of influence I test them. I remind them the judge has announced the than talking well. two most basic fundamental laws of his court: you must follow the law and you must decide the case only on the evi- C. Be Fair dence. Your jury must understand that while you are an advo- I tell the jury that they will swear an oath—under pen- cate who wants to win, you recognize that there are two sides alty of perjury, if they violate that oath. to the story. Then I give specific deliberation examples: I take every opportunity to convince the panel that my client and I are more concerned with reaching the truth and Mr. Jones, if a juror says malpractice cases are forc- seeing that justice is served, than we are about winning. To ing doctors to leave the area, and there was no evi- prove that I emphasize that even though I get to go first, my dence of that presented at trial, what will you do? opponent is entitled to the same attention they gave me. I remind the jury that my client has the burden of proof, Mr. Smith, if a juror says there are too many law- and just because we filed a lawsuit does not mean we get to suits, and there was no evidence of that presented in win. If the defendant is a corporation, I will take pains to this trial, what will you do? explain they are to be treated no differently than my client. I will also co-opt the sympathy issue by suggesting that I ex- Mr. Jackson, a juror says a verdict for plaintiff will

6 First Quarter 2009

cause our insurance rates to go up, and there was no I then ask jurors whether their feelings are “a little closer” evidence of that presented at trial, what will you do? to folks who think that standard is a little unfair, or whether their feelings are closer to people who think that standard is Mr. Adams, a juror says a verdict for the plaintiff okay. will force jobs overseas, and there was no evidence I follow up with “why” this is their feeling. Meanwhile I of that presented at trial, what will you do? am looking for verbal cues from other jurors who may be signaling disagreement. I thank the first juror for her hon- The answer (and you make each juror promise it) is that esty and then continue the conversation with the next juror. they will have the foreperson bring that to the judge’s atten- I then “button up” this line of questioning by saying: tion. It is their sworn duty. They have given their word. It also empowers jurors to keep other jurors honest. I had to ask this because you must make your deci- The “promise” approach is invaluable when you make sions in this case on the basis of whether we are your closing argument. When you remind the jury they prom- “more likely right than wrong” (hand language). ised to follow the law, even if they disagreed with it, you I expect we will prove far more, but even if one of have a powerful foundation for arguing favorable instruc- you folks thinks we are only more likely right than tions. wrong (again with the hand language), you must decide in our favor. B. Preponderance of Evidence Despite my belief that most people keep their promises, At this point I get verification from both the judge and there is one area in which you can call me a cynic. I believe my opponent. I turn to the judge and say: “His Honor agrees most jurors expect me to prove my case beyond a reasonable this is the standard.” I then ask my opponent whether she doubt, and explaining “preponderance” to them in traditional agrees. Since she must, I now have a complete concession ways is a waste of time. on my burden, always using the hand language. When I talk about burden of proof I have one goal: to I avoid the words “prove” and “proof” as much as pos- have jurors who respond to the defense oriented juror’s com- sible. These words connote a higher burden. Instead, I prefer ment, “I’m not so sure,” with a resounding, “We’re not here to use the word “show”. to be sure, but only to decide whether the plaintiff is more likely right than wrong.” C. Conservative Juries Too often plaintiff’s lawyers approach the preponder- Sometimes you just have to try a case in a conservative ance issue as just one of their checklist questions. It is so venue, facing a panel who embrace terms like “frivolous law- much more. suits,” “greedy trial lawyers,” “rising healthcare costs,” “flee- My client does not get to win unless we meet our burden ing doctors,” or “jobs going overseas.” These people can be of proof. It is absolutely critical that I condition the jury, from persuaded, but you must put the civil justice system in a con- the very beginning, that this burden is really not insurmount- text which fits their values. able; it is simply 51% to 49%. What are those values? Accountability. Responsibility. I prefer “more likely right than wrong” to “more prob- Sanctity and dignity of human life. Conservative jurors do ably true than not true.” It is clearer and the latter phrase still not like acts or omissions that diminish human dignity and carries too much legalese. I will typically say: “In trials like inexcusably take a life. this, the law requires jurors to make their decisions on the I tell jurors that an injury that disables a person from work- basis of whether my side is more likely right than wrong.” ing is so much more than lost income; it is a loss of self worth. I As I say that, I position my hands, side by side, my right remind them that weekends are fun because you worked all week; hand about an inch higher than my left. Every time I use that vacations are fun because you worked all year. phrase, for the rest of the trial, I repeat that hand language. These themes give a conservative jury a different con- I then say: text for awarding “non-economic” damages. I do not talk Some people believe “more likely right than wrong” about pain with these kinds of juries, I talk about suffering— makes our job a little too easy and the defendant’s the suffering a father feels when his wife or his son becomes job a little too hard. Others believe that our having “the man of the family.” to be only “more likely right than wrong” (again Similarly, I never talk about a verdict as an “award.” In- using the hand language) is okay. (Continued on next page)

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Voir Dire – A Plaintiff’s Perspective (Continued) Feature Article stead, I use the term “compensation.” I always ask the jury By: Robert W. Neirynck what the word “compensation” means. A few questions will Costigan & Wollrab, P.C. drive home the point that compensation is not a gift, a wind- Bloomington fall, or “jackpot justice.” It simply means payment of what is owed.

If accountability and responsibility Voir Dire — a Defense Perspective must be applied to my client, to me, to them, and to their own children, There is no “one way” to conduct the voir dire examina- then surely it must be applied to a tion of potential jurors. Just as the facts of each case are corporation, a hospital, or a doctor. unique, so too are the personalities and “comfort levels” of the attorneys trying the case. What follows are some general observations that may be of assistance to counsel who have never conducted a voir dire examination and perhaps a re- These types of jurors will “compensate” if they under- fresher for those who have done so on numerous occasions. stand that returning a verdict is holding the party “account- able” as opposed to shifting that cost to the public at large. Pre-Trial Step One – Learn the Nuances It is important to “empower” conservative jurors so they of the Jurisdiction understand that by their verdict they are requiring a wrong- doer to take responsibility for the consequences of their ac- If you have never tried a case in a particular venue it is tions. Hence, I will frequently ask these people questions important to learn the rules of the local Jury Commission such as: “How do you feel about personal responsibility?” with respect to juror lists since each County or District Court They invariably respond positively. is different. Approximately two weeks or longer before trial, I ask them whether they believe they must be account- contact the Jury Commission office. The following are some able for their actions, and the response is the same. Since things to inquire about and what to do with the information these jurors believe strongly in family values, I ask whether you obtain. they taught their children that they are going to be held ac- Ask whether the Commission will provide attorneys with countable for their actions, and why they taught them that a list of jurors the week before the trial? If so, get the list and “value.” have it reviewed by all counsel in your office and your client If accountability and responsibility must be applied to my client, to me, to them, and to their own children, then surely it must be applied to a corporation, a hospital, or a doctor. If a conservative jury believes they can prevent future About the Author wrongdoing by applying values which they hold dearly, they will take that opportunity. You simply have to remind them Robert W. Neirynck is a Shareholder at Costigan & Wollrab, that they have the power to do it. P.C., Bloomington, Illinois. Mr. Neirynck graduated from the University of Illinois, A.B. cum laude in 1966 and the University of Notre Dame, J.D. cum laude in 1969. He served Conclusion as a Law Clerk for Judge Leland Simkins, Ill. App. Ct. 4th Dist. (1971-73). Mr. Neirynck is a member of the Illinois State Bar Assocaition, former member Tort Law Section Coming in to the trial, you, the judge, and I are likely Council and Insurance Law Section Council (Chairman). He is also a member smarter than any one juror in that box. But when you put of the Illinois Association of Defense Trial Counsel (Director 1983-94) and is a Fellow, American College of Trial Lawyers (Downstate Chair 2002-04). twelve jurors in that box “they” are, by far, the smartest “persons” in that courtroom. Choose wisely.

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to learn what you can about the jurors. This is especially help- judges are fairly perfunctory in their questions, expecting ful in smaller Counties. If you do not practice in the County, counsel to ask in-depth questions, while others are just the contact a local attorney with a defense practice and ask if he opposite. would go over the list with you to see if he can provide back- Are you allowed to expand on the questions asked by ground knowledge about specific jurors. the judge? If the Jury Commission does not provide counsel with a Does the judge impose a time limit on jury selection? In list of jurors in advance of the trial date, find out if one is York v. El-Ganzouri, 353 Ill. App. 3d 1, 817 N.E.2d 1179 (1st provided on the morning of trial. Dist. 2004), the appellate court upheld a 20 minute limita- Find out whether the Jury Commission simply provides tion on each side to question the entire venire in a medical a list of the potential jurors or whether it also provides cop- malpractice action. On appeal following a plaintiff’s verdict, ies of juror questionnaires. Commonly, the questionnaires are the court held that since the trial judge had conducted an not provided until the morning of trial. However, if ques- extensive examination, the 20 minute limitation was not un- tionnaires are provided, try to get copies as far in advance of reasonable. The appellate court also held that objections to trial as possible. Also try to learn if the questionnaires are the process were waived when defense counsel failed to ob- provided in numerical or alphabetical order. ject to the judge’s procedure and accepted the jury after rul- If the first time you learn the names of potential jurors is ings on peremptory challenges. If there is a time limit, your when juror questionnaires are handed to you at the counsel questioning of potential jurors is far more confined and in- table, ask the Court for time to review the questionnaires. tense. Have your client review them as well and use “Post-It Notes” to flag jurors that have listed information that is either helpful or hurtful to your defense theory. Learn how jurors are called from the venire that is sent Frequently within the same to the courtroom. Frequently, they are called randomly in the courtroom by the bailiff or clerk. If this is the practice, ask courthouse different judges have the clerk to call by number as well as name and politely ask the clerk to speak slowly in calling jurors by name. If you their own idiosyncrasies with respect fall behind in writing down names and seating locations it to jury selection. can become embarrassing. In some counties the sequence in which jurors are seated is created by computer before the jurors come to the courtroom and they are then called in a pre-determined sequential order. Therefore, when a juror is excused counsel knows the name of the next juror who will How does the judge group jurors for purposes of ques- be called. If this is the practice it creates tactical issues in tioning and challenges. Some judges question in panels of deciding whether and to what extent challenges are made. four with two jurors in the front and two in the back. Others question panels of six in a linear fashion, while still others Pre-Trial Step Two – Learn the Nuances question all twelve at once. of the Trial Judge How does the judge seat new jurors when one is excused? Do they all move down the row such that a juror already in If you are unfamiliar with the trial judge learn the man- the jury box becomes the “new” juror for questioning or is a ner in which he or she conducts jury selection and voir dire. new juror called from the venire to replace the excused ju- Frequently within the same courthouse different judges have ror? their own idiosyncrasies with respect to jury selection. Learn How does the judge handle challenges – either for cause the answers to these questions at the final pre-trial confer- or peremptory? Are counsel required to come to the bench or ence. If the trial judge is different than the pre-trial judge, are challenges made openly from the counsel table? Addi- then once you learn the name of the trial judge, ask colleagues tionally, when are challenges done – each panel or the venire about the manner in which he or she conducts voir dire. Find as a whole at the end of all questioning? out the following information. Does the judge request a list of voir dire questions from each counsel and how extensive is his questioning? Some (Continued on next page)

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Voir Dire – A Defense Perspective (Continued) hearing aids, etc. Pay attention to visual clues from each juror when they are questioned by the judge and opposing Pre-Trial Step Three – Prepare a Jury Selection Chart counsel, especially when they are questioned by the judge. Notice if there are certain questions that cause them to frown, Some attorneys wait until the jurors are seated and sim- smile, or act indifferent. ply draw lines on a legal pad to record jury selection notes. A Learn the names of the jurors and how to pronounce preferable method is to prepare a chart before trial, based them! No one likes to have their name mis-pronounced. Write upon the manner in which the judge handles voir dire exami- the jurors’ names out phonetically on your jury pad. If you nation and challenges. The chart should not only keep track have any questions about the pronunciation, ask them. of juror’s names and information gleaned from questions posed by the Court and counsel but also record challenges. The manner in which the chart is organized depends in part on the Court’s system for seating “new” jurors in place of those who are removed. If the judge has the jurors simply Remember that your role in voir dire move over and take the seat of an excused member, then a and throughout the trial is to be simple legal pad chart recording the names of jurors in each row in the manner called by the clerk will suffice. However, completely credible. If the plaintiff is if the Court has the “new” juror take the exact seat of the excused juror, it is more efficient to use large “Post-It Notes” injured because your client ran a to keep track of who is sitting in what seat, while recording answers to questions on a separate legal pad. Finally, in a red light and struck his vehicle, multi-party case, make certain that everyone on your team acknowledge it and state that the issue knows the number of challenges the Court has allotted each party. is the nature, extent and duration of

The Day of Trial – Pre-Selection Considerations the plaintiff’s injuries and the amount of money that they are seeking. Smile and be pleasant when entering the courthouse. Remember the person walking next to you could be a juror in your case. Instruct your client in the same manner. Re- mind your clients that the jurors are looking at them when they least expect it and forming judgments about them. In asking questions, addressing the Court and opposing Decide if you want the jury selection taken by a court counsel, always be polite. Stand when you question the ju- reporter. Some judges may subtly “hint” that this is a burden rors and look directly at each one as you ask your questions. on the court reporter by asking, “You don’t need this taken Try to question each one individually about something so no down, do you?” Remember, if the jury selection is not taken one is “left out.” Never ask an embarrassing question of a down it will be extremely difficult if not impossible to use an juror. Remember that all the other jurors are watching you error during selection process to reverse an adverse verdict. and placing themselves in the place of the juror being exam- Also, if opposing counsel is the type who tries to “indoctri- ined. If the Court requires counsel to excuse jurors in open nate” the jury during voir dire, the lack of a court reporter court, use a phrase like, “If the Court please, we would re- can encourage this type of behavior. spectfully excuse Mr./Mrs. Juror with our thanks.” The pref- Be organized during the jury selection. Don’t have the erable way for both counsel is to have the Court excuse ju- counsel table covered with files, books and exhibits. Let the rors; and many judges will agree to do so. jurors know visually that their selection in the case is very important and you are giving them your complete attention. Voir Dire Considerations for Defense Counsel Observe each juror as they are called to the jury box: what are they wearing; are they limping; do they move slowly; There are general questions of jurors that can be ad- are they carrying a book or magazine, and, if so, what is it; dressed in every case. More specific questions are formed by do they appear to know any other juror; do they wear glasses, your theory of the case. In that sense, the type of juror that

10 First Quarter 2009

you want depends upon the nature of your defense. Are you for [name of client] even though the plaintiff has been in- defending on liability, damages, or both? jured and damaged – even seriously. Remember that your role in voir dire and throughout the If plaintiff’s counsel has questioned the jurors about a trial is to be completely credible. If the plaintiff is injured specific dollar figure or figures (“If you find for my client because your client ran a red light and struck his vehicle, could you award X dollars if warranted by the evidence?”), acknowledge it and state that the issue is the nature, extent ask the jurors if they could return a zero verdict, i.e., a ver- and duration of the plaintiff’s injuries and the amount of dict for [name of client]. Remind them that they have not money that they are seeking. Always use “real English” rather heard any evidence. than legal terms. General areas of inquiry can include the While there is no one “perfect juror,” some general types following. of juror characteristics to look for in defending a case could Remind jurors that because the plaintiff has the burden include the following: of proof, counsel for plaintiff always goes first in the case – (a) Age. More mature jurors are better for the de- questions jurors first, argues first, and so forth. Tell them fense because they have seen more of life and have that sometimes we tend to believe what we hear first and ask a more realistic understanding of the facts. them to keep an open mind until they hear all the evidence in the case and the jury instructions of the court. Remind them (b) Gender. Generally, women are more sympathetic that there are two sides to a story and ask them to wait until than men in awarding damages, especially in cases they hear your client’s evidence. involving children or wrongful death cases. Ask them if they understand that just because a Com- plaint has been filed, it does not mean or imply that there is (c) Education. This depends on the type of case. If it liability on the part of your client. Remind them that anyone involves complicated scientific or engineering ques- can file a Complaint but the plaintiff has the burden of prov- tions, then look for more educated jurors. But a ju- ing fault and damages. ror who has a lot of common sense can often be bet- Ask whether they have any quarrel with the fact that ter than one with a lot of degrees. [name your client] has filed an Answer and is contesting that (d) Employment. If your client is a corporation, ju- they are liable to the plaintiff. rors who are employed by a corporation should be In any personal injury case where there is no dispute considered. They can understand that corporations that the plaintiff has in fact been injured, acknowledge that act through individuals and are not all “evil.” Small the plaintiff has been injured and that everyone feels regret- business owners often make good jurors because they ful for anyone who is injured no matter what the circum- are self-reliant and have a sense of person responsi- stances. Inquire if the juror can put aside those feelings and bility. decide the case on the facts. Ask if the jurors believe that the plaintiff should prevail simply because he or she has been Again, in general, consider avoiding the following juror injured. types: In an injury case, find out if the jurors, any member of the their families or close personal friends have ever been (a) Very young jurors. They have little experience in injured by some type of trauma that resulted in litigation. If the “affairs of life,” are often highly influenced by so, can the jurors set that aside? the media and sometimes have a lack of understand- If you are defending the case on liability and the issue is ing of the real value of money. the contributory fault of the plaintiff, ask the jurors if they (b) Litigious jurors. Remember that jurors who have acknowledge that we all have personal responsibility in how a case pending in the same county where the case is we act, drive, work – whatever type of fact pattern the case being tried are automatically excused for cause. Ju- involves. rors who have been plaintiffs in injury cases or class Inform the jurors that in any civil case there are two broad action cases should be avoided as well as jurors who areas: liability and damages. If they find for [name of client] have serious or multiple workers’ compensation on the issue of liability they will not have to decide the issue cases. An exception may exist where (i) the plain- of damages. tiff was injured during the course and scope of em- Ask the jurors if they decide during their deliberations ployment and the juror would be aware that the plain- that [name of client] is not liable, can they return a verdict (Continued on next page)

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Voir Dire – A Defense Perspective (Continued) Ball, David, PhD, Theater Tips and Strategies for Jury Tri- als, (N.I.T.A., Third Ed., 1994) p. 39. tiff had a compensation action against his employer as a result of the accident in addition to the case un- Try not to repeat questions that were asked either by the der consideration; or (ii) where you believe you can Court or your opponent. Repeating questions that already have show that the plaintiff is exaggerating his injuries. been answered satisfactorily will unnecessarily lengthen an In the latter situation the juror may feel that he was already lengthy process. injured far more than the plaintiff and did not receive what the plaintiff is asking for. This is a judg- Sample Questions ment call. (c) Education. If your defense is complicated or tech- Examples of some typical voir dire questions could in- nical, avoid less educated jurors while remember- clude the following. ing the “common sense” exception. (a) Premises liability or automobile case: (d) Angry or sullen jurors. Avoid these at all costs. (1) Are you familiar with the location where this accident occurred [state location]? Ask open-ended questions that require the juror to give a narrative answer rather than simply “yes” or “no.” For ex- (2) Do you agree that simply because a Complaint ample, jurors may be engaged in unusual occupations. Ask has been filed does not mean that the defendant is them to generally describe what they do. Be interested in liable – you understand that anyone can file a Com- what they say and how they say it. plaint to recover for his injuries? If you know that there is going to be damaging evidence (3) Do you object to the fact that the [name of cli- introduced against your client, bring it out in your question- ent] chose to file an Answer and contest that it is ing. For example, if your client has been convicted of a felony liable for the plaintiff’s claimed injuries? and you know opposing counsel will bring that out, tell the jurors that your client made a mistake and paid for it. If the (4) Do you understand that there are two broad ar- case involves alleged negligent conduct, for example, ask eas of any civil trial for damages: liability and dam- the jurors if they believe that just because your client had a ages? If you find for [name of client] on the ques- conviction in a totally unrelated matter he must be liable in tion of liability then you will not have to consider this case. the question of damages. As illustrated by Author David Ball: (5) In a civil case such as this, the plaintiff has the Introduce the weaknesses of your case before your burden of proof, which means she has to prove the opponent does it for you. Well-worded questions allegations of her complaint under the legal stan- reveal the necessary information even as you seek dard that the court will give you at the end of the to discover juror biases: case. As a result of this burden, the plaintiff goes first throughout the case and I proceed second. Can What conclusions would you draw about some- you wait until you hear all the evidence and the one convicted of forgery? Court’s instruction on the law before you begin to decide whether there should be a recovery and, if If I tell you that my client was convicted of forg- so, in what amount? ery, would you draw those same conclusions about him? (6) Can you set aside the natural human sympathy that you might have for anyone who has been in- Can you think of any reasons why it might be jured and decide the case on the facts and the law? unfair to do that? (7) Have any members of your family or close per- Such questions introduce the weaknesses of your sonal friends ever been injured? Who, when, and case. Simultaneously, they seek potential bias – as what were the circumstances. Was there a lawsuit as must all your questions. a result? Can you set that aside in deciding the facts of this case?

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(8) Do you have any family members or close per- (9) Do you believe that the sale of alcohol in this sonal friends who work in the health care field? Who, State should be prohibited? where, doing what? Would this influence you in de- (10) It is undisputed in this case that [name of cli- ciding the facts of this case? ent] sold alcohol to [alleged intoxicated person] and (9) If at the close of all the evidence and the instruc- that later the same day Mr./Mrs.[alleged intoxicated tions on the law you believe that the [name of cli- person] was operating a motor vehicle that collided ent] was not liable, could you return a verdict for with a vehicle operated by the plaintiff. Without [name of client] even though the plaintiff had sus- knowing any additional facts would you be able to tained personal injuries? give [name of client] a fair trial? (b) Dram shop case: Note that these cases pose a unique challenge to defense counsel because of the subject of alcohol consumption. Consequently, in addition to questions Some attorneys believe that you win about liability and damages, familiarity with the parties, etc., it is important to question jurors about their or lose your case in the type of jury beliefs and opinions regarding the consumption of alcohol. This must be handled in a manner that does you select, others by your opening not embarrass the juror. Begin the series of questions by stating, “A person’s consumption of alco- argument, still others through a holic beverages is a personal matter; but I have to well-structured closing. ask you some questions about it, because the consumption of alcohol is an issue in this case.” Then follow that up with questions like the following:

(1) Do you consume alcoholic beverages socially? Conclusion (2) If you eat out at a restaurant are there times when you might consume alcohol with your meal? Some attorneys believe that you win or lose your case in the type of jury you select, others by your opening argument, (3) On those occasions have you subsequently op- still others through a well-structured closing. Whatever your erated a motor vehicle to return home? personal belief, there is no dispute that selection of the jury (4) Do you have alcoholic beverages in your home is a crucial building block in your case presentation. Remem- from time to time? ber that this is your first chance to present yourself and your client to the jurors, and first impressions are hard to change. (5) Do you belong to any organization that has as The more information you can gain about jurors, either one of its purposes the abolition of the use of alco- through pre-trial investigation or voir dire examination, the holic beverages? greater opportunity you have to select fair, neutral jurors who (6) Do you belong to M.A.D.D. – Mothers Against will try the case on the facts and the law rather than pre- Drunk Driving? conceived prejudices. (7) Some religious denominations have as part of their beliefs a prohibition against the use of alcohol. Are you a member of a church or religious organization that takes a position against all use of alcoholic beverages? (8) Have you, a family member or a close personal friend ever been injured by the actions of someone who in your judgment was intoxicated?

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ent, individually and as next friend of the minor plaintiff; and Civil Practice and Procedure 5. The complaint contains a count under the Fam- ily Expense Act for medical expenses for which the parent will allegedly be responsible under the By: Kenneth M. Lubinski Act. Busse, Busse & Grassé, P.C. Chicago Under this scenario, the following arguments can be made to attempt to defeat this claim: 1. The plaintiffs cannot maintain a cause of action under the Illinois Rights of Married Persons Act Introduction because the place of domicile determines whether the Act applies and the plaintiffs are not domi- When a complaint is filed by a parent, as parent and next ciled within the state; and friend of a minor child, for injuries sustained by the minor 2. An out-of-state creditor cannot use the Illinois child, often the complaint will include a count for the parent’s Family Expense Act to sue an out-of-state resi- damages, pursuant to 750 ILCS 65/15, (commonly referred dent for the family expenses incurred outside of to as the “Family Expense Act”). This column will address the state; therefore, the out-of-state resident does whether a parent can state a claim under the Family Expense not have a cause of action under the Family Ex- Act when the child’s injury occurs in Illinois but both the pense Act. parent and child reside out of state, and the child’s medical treatment occurs out of state. 1. The plaintiffs cannot maintain a cause of action under The Illinois Family Expense Act is a section of the Rights the Illinois Rights of Married Persons Act, when the place of Married Persons Act, 750 ILCS 65/0.01, et. seq. Paragraph of domicile determines whether that act applies, and the (a)(1) of the Family Expense Act states, “The expenses of plaintiffs are domiciled out-of-state. the family and of the education of the children shall be charge- able upon the property of both husband and wife, or of either The initial argument supporting a motion to strike or an of the them, in favor of creditors therefor, and in relation affirmative defense is that the Rights of Married Persons Act thereto they may be sued jointly or separately.” 750 ILCS applies only to Illinois residents. While the Act itself does 65/15(a)(1). not contain a residency requirement, case law interpreting A complaint seeking recovery under the Act typically the Rights of Married Persons Act establishes that the Act asserts that the parent will be responsible for the medical applies only to individuals who reside in Illinois. For ex- expenses incurred by the minor, and that the parent is, there- ample, in Pinorsky v. Pinorsky, 217 Ill. App. 3d 165, 576 fore, entitled to recover those expenses from a third party N.E.2d 1123 (5th Dist. 1991), the plaintiff and her husband, pursuant to the Act. It is generally assumed that a Family both domiciled in Florida, were involved in an accident in Expense Act claim is valid, and not subject to a motion to Illinois. The plaintiff sued her husband in Illinois. At the time strike. Often the lawsuit will involve Illinois residents, an of the accident, Florida law barred a suit by one spouse against injury that occurred in Illinois, and medical treatment that was rendered in Illinois. From time to time, however, an out- of-state resident, who files a claim in Illinois as parent and next friend of a minor, will attempt to state a claim under the About the Author Act. The following scenario raises a question as to whether a plaintiff has a valid Family Expense Act claim: Kenneth M. Lubinski is an associate with the law firm of 1. A minor plaintiff sustains an injury in Illinois; Busse, Busse & Grassé, P.C., in Chicago, where he special- 2. Both the minor plaintiff and the parent reside out izes in the defense of civil litigation matters including construction litigation, dram shop litigation, premises liability, of state; personal injury defense, and automobile accident defense. 3. The minor plaintiff receives medical treatment He is a graduate of Indiana University and of the Loyola University Chicago, School of Law. in his state of residency; 4. A lawsuit is filed in Illinois on behalf of the par-

14 First Quarter 2009

the other, but Illinois allowed such suits. The court held that (3rd Dist. 1990). If the parent is not liable to pay creditors for Florida law prevailed. The court reasoned that the state of a child’s medical expenses, then the parent has no cause of the marital domicile retained paramount interest in incidents action to recover for those expenses. Sapp v. Johnson, 15 Ill. of the family relationship. Id. at 168. App. 3d 119, 303 N.E.2d 429 (3rd Dist. 1973). Likewise, in Nelson v. Hix, 122 Ill. 2d 343, 522 N.E.2d 1214 (1988), two Canadian citizens were involved in an accident in Illinois. At that time, Illinois had an interspousal tort immunity statue and Ontario, Canada did not. The court The issue then becomes whether noted that the state of domicile has the primary responsibility for establishing and regulating the incidents of the family an out-of-state creditor can use the relationship. Id. at 359. The court ruled that Ontario law controlled. Illinois Family Expense Act to sue an Both cases cited above involved provisions of the Illi- out-of-state resident for family nois Rights of Married Persons Act, and both courts found that the state of domicile controlled the issue. The same test expenses incurred out-of-state. If the should apply to the Family Expense Act scenario identified above. In general, when it comes to laws regarding family creditor does not have a claim against relationships, a person would expect to be governed by the laws of the place of his or her residence. Out-of-state resi- the parent for the family expenses, it is dents should not be permitted to invoke the Illinois Rights of reasonable to conclude that the parent Married Persons Act. likewise does not have a claim for 2. An out-of-state creditor cannot use the Illinois Family Expense Act to sue an out-of-state resident for the family those expenses from a defendant. expenses incurred out-of-state; therefore, the out-of-state resident does not have a cause of action under the Act.

The origin of the Family Expense Act was an effort to The issue then becomes whether an out-of-state creditor protect creditors. At common law, “the wife could bind the can use the Illinois Family Expense Act to sue an out-of- husband for necessaries only as express authority was given state resident for family expenses incurred out-of-state. If to her, or as authority could be implied from the husband’s the creditor does not have a claim against the parent for the neglect to furnish articles suitable to her station in life.” family expenses, it is reasonable to conclude that the parent Arnold v. Keil, 81 Ill. App. 237, 242 (4th Dist. 1898). The Act likewise does not have a claim for those expenses from a was copied word for word from an Iowa statute. Hudson v. defendant. King Bros., 23 Ill. App. 118, 119-20 (2nd Dist. 1888). The As noted above, the Family Expense Act is a means for a term “family expense” under the Act was meant to embrace creditor to obtain payment for family expenses. Therefore, much more than “necessaries.” Id. It was also a means to when analyzing a claim under the Family Expense Act, the expand the remedies for creditors by giving a remedy to the initial question is whether the creditor has a valid claim to creditor of either the husband or the wife against both of them. recover payment for the family expenses. If the creditor does See Hudson, 23 Ill. App. at 122. not have a valid claim to recover, the parent likewise will not Most of the early cases dealing with this statute appear have a claim. to have been for claims asserted by creditors. The cases ad- For purposes of this part of the discussion, we will as- dressed whether an item was a family expense that the credi- sume that a minor plaintiff was injured in Illinois; a lawsuit tor could claim under this Act. See, e.g., Hickman v. Eggmann, was filed in Illinois by the minor plaintiff’s parent, as parent 53 Ill. App. 561 (4th Dist. 1894), and Hudson v. King Bros. and next friend of the minor plaintiff; the complaint states a The statutory obligation of the parent to pay creditors claim under the Act; both the minor plaintiff and the parent for the child’s medical expenses entitles the parent to seek are residents of New York; and all of the medical treatment recovery of those medical expenses from a tortfeasor. In re was received in New York. In this scenario, the question is Marriage of Frazier, 205 Ill. App. 3d 621, 563 N.E.2d 1236 (Continued on next page)

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Civil Practice and Procedure (Continued) whether the New York medical provider has a right under Illinois Family Expense Act to obtain payment from the par- Supreme Court Watch ent of the minor plaintiff for medical treatment rendered in New York. The answer is “no.” Since the New York medical provider cannot collect under the Illinois Family Expense By: Beth Ann Bauer Act, the New York parent has no liability under the Act and, Hepler, Broom, MacDonald, Hebrank, therefore, should similarly not be able to make a claim under True & Noce, LLC the Act against a third party. Id. Edwardsville Case law supports this reasoning. In Tully v. Cuddy, 139 Ill. App. 3d 697, 487 N.E.2d 1095 (1st Dist.1985), the plaintiff alleged that he was obligated to pay large sums of money for his daughter’s care and treatment; and he sought relief On September 24, 2008, the Illinois Supreme Court al- under the Family Expense Act. Id. at 698. The daughter, how- lowed Petitions for Leave to Appeal in the following civil ever, was beyond the age of majority. Id. The court stated cases of general interest. that in order for a parent to recover for his child’s medical expenses, the parent must be legally obligated to pay those expenses. Id. at 699. The court found that the trial court had Whether it is Appropriate to Consider the properly dismissed the plaintiff’s claim under the Family Allegations of a Third-Party Complaint Expense Act. in Determining an Insurer’s Duty to Defend Likewise, in our fact scenario, the New York parent claims that she is obligated to pay the medical expenses of American Economy Ins. Co. v. Holabird & Root, the minor child, and, therefore, is seeking relief under the et al., Consolidated Nos. 106517, 106831, Illinois Family Expense Act. The New York parent, however, First District 1-05-0403 is not legally liable to pay the minor’s expenses under the Illinois Family Expense Act. Both the parent and child are A City of Chicago employee filed a complaint alleging New York residents. The creditors are New York creditors. A that certain defendants’ selection and installation of New York creditor should not be permitted to sue a New York unshielded fluorescent light fixtures aggravated her lupus resident under an Illinois statute. condition. Her complaint alleges negligence, professional negligence, and negligent infliction of emotional distress Conclusion against the general contractor, building owner, and lighting subcontractor. When a case involves an out-of-state parent attempting The building’s owner filed a third-party complaint against to utilize the Illinois Family Expense Act to recover medical the lighting installer and the city. Count II of the third-party expenses for a minor child, there may be grounds to defeat complaint claims that the lighting installer owed a duty to the claim. If the parent and minor child are both out-of-state the employee to install electrical lighting fixtures that would residents, the plaintiffs cannot maintain a cause of action not cause her physical, mental, or emotional illness. under the Act, because the place of domicile determines The plaintiff insurer issued a policy for general liability whether the Act applies. Additionally, if the medical provid- insurance to the lighting installer. The general contractor, ers are out of state, the parent likewise may not have a claim under the Act. An out-of-state creditor has no cause of action under the Illinois Family Expense Act against an out-of-state About the Author resident for the family expenses incurred out of state. There- Beth Ann Bauer concentrates her practice in the area of fore, the out-of-state resident does not have a cause of action appellate practice at Hepler, Broom, MacDonald, Hebrank, under the Act. When an out-of-state resident files a claim in True & Noce, LLP in Edwardsville. She graduated cum laude from St. Louis University School of Law in 2000 and re- Illinois as parent and next friend of a minor, if the above ceived her B.A. with honors from Washington University scenario exists, that parent may not have a valid claim under in 1997. Ms. Bauer is a member of the Illinois and Mis- the Act. souri State Bar Associations and National Christian Legal Society.

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building owner, lighting subcontractor, and the city were unpleaded facts” that are known to the insurer and that, when additional insureds under the policy pursuant to the follow- coupled with the allegations of the complaint, give rise to a ing additional insured endorsement: duty to defend. Such evidence should only be examined, however, when it does not determine an issue crucial to li- WHO IS AN INSURED (Section II) is amended to ability in the underlying lawsuit. See L. J. Dodd Construc- include as an insured the person or organizations tion, Inc., 365 Ill. App. 3d at 262-63, 848 N.E.2d at 658. The shown in the schedule but only with respect to li- insurer contends that the First District violated this statement ability arising out of “your work” for that insured of the doctrine because the third-party complaint involves by or for you. determining an issue crucial to liability in the underlying lawsuit. The defendants in the underlying claim tendered their defense to the insured. The insurer, however, asserted that it had no duty to defend or indemnify the defendants in con- Whether Promissory Estoppel nection with the city employee’s litigation. The trial court is an Affirmative Cause of Action denied the insurer’s motion for summary judgment, finding under Illinois Law a duty to defend. The Illinois Appellate Court, First District, affirmed the Newton Tractor Sales, Inc. v. Kubota Tractor Corp., trial court. The appellate court found that consideration of a et al., Gen. No. 106798, Fifth District 5-06-0087 third-party complaint in determining a duty to defend is “in line with the general rule that a trial court may consider evi- The plaintiff tractor dealership purchased a second deal- dence beyond the underlying complaint if in doing so the ership in a nearby town, which was the local authorized rep- trial court does not determine an issue critical to the underly- resentative for the sale and service of the products of the ing complaint.” American Economy Ins. Co. v. Holabird & defendant manufacturer. The asset purchase agreement con- Root, et al., 382 Ill. App. 3d 1017, 1032, 886 N.E.2d 1166, templated and was conditioned upon the continued ability of 1178 (1st Dist. 2008). The court considered the employee’s the plaintiff to sell and service the defendant’s products. The complaint, the third-party complaint, and the relevant lan- defendant’s agent, also a named defendant in the law suit, guage of the policy and concluded that the facts raised a po- purportedly assured the plaintiff that it would be the new tential for coverage due to the actions of the lighting installer. local authorized dealer for the defendant’s products. Also, The insurer seeks review in the Illinois Supreme Court according to the agent, the defendant required termination of arguing that the opinion of the First District directly con- the prior dealership’s status as the local authorized dealer flicts with several cases in the First and Second Districts, before the plaintiff could be engaged as the future local au- which hold that the allegations of the underlying complaint thorized dealer. The plaintiff alleges that the defendant’s agent are what trigger the duty to defend when compared to the made various assurances that the plaintiff would receive the terms of the policy. See State Farm Mut. Ins. Co. v. Habitat contract to be the local authorized dealer for the defendant’s Construction Co., 377 Ill. App. 3d 281, 286, 875 N.E.2d 1159 products. (1st Dist. 2007); American Alliance Ins. Co. v. 1212 Restau- After the termination agreement was signed, the plain- rant Group, LLC, 342 Ill. App. 3d 500, 505, 794 N.E.2d 892, tiff sold and serviced the defendant’s products, purportedly (1st Dist. 2003); Bituminous Casualty Corp. v. Fulkerson, 212 with the knowledge of the defendant, for approximately two Ill. App. 3d 556, 562, 571 N.E.2d 256, 260 ( 5th Dist. 1991); to three months. Additionally, during that time, the plaintiff Pekin Ins. Co. v. L. J. Shaw & Co., 291 Ill. App. 3d 888, 891- maintained insurance on the defendant’s products in its pos- 92, 684 N.E.2d 853, 855 (1st Dist. 1997); L. J. Dodd Con- session and performed approximately $28,000 worth of war- struction, Inc. v. Federated Mut. Ins. Co., 365 Ill. App. 3d ranty work on defendant’s products. Three months after the 260, 263, 848 N.E.2d 656 (2nd Dist. 2006); National Union signing of the termination agreement, the defendant retrieved Fire Ins. Co. of Pittsburgh, PA v. R. Olson Construction Con- all of its products from the plaintiff. tractors, 329 Ill. App. 3d 228, 234, 769 N.E.2d 977 (2nd Dist. The plaintiff brought an action to recover damages 2002). against the defendants based, among other things, on the The insurer also argues that the First District erred by theory of promissory estoppel. The defendants filed a mo- violating the true but unpleaded facts doctrine. The First Dis- tion for summary judgment, arguing that promissory estop- trict cited the principle that it could consider “true but (Continued on next page)

17 IDC Quarterly

Supreme Court Watch (Continued) Bishop of Chicago, 366 Ill. App. 3d 309, 851 N.E.2d 233 (1st pel is not an affirmative cause of action. The trial court granted Dist. 2006). the defendants’ motion. In its petition for leave to appeal, the defendants argue The Illinois Appellate Court, Fifth District affirmed the that the Fifth District’s decision creates a conflict among Il- trial court’s finding that promissory estoppel is only avail- linois appellate courts, casts doubt upon more than a century able as a defense, citing DeWitt v. Fleming, 357 Ill. App. 3d of the Illinois Supreme Court’s constitutional precedent and 571, 573, 828 N.E.2d 756, 758 (5th Dist. 2005). presents an issue of general importance. The plaintiff argues to the Illinois Supreme Court that the Fifth District’s opinion directly conflicts with the Illinois Supreme Court case of Quake Constr., Inc. v. American Air- lines, Inc., 151 Ill. 2d 281, 309-10, 565 N.E.2d 990, 1004 (1990), the First District case of Chatham Surgicore, Ltd. v. In its petition for leave to appeal, Health Care Serv. Corp., 356 Ill. App. 3d 795, 800, 826 N.E.2d 970, 974 (1st Dist. 2005), and the Fourth District case the defendants argue that the Fifth of Cullen Distrib., Inc. v. Petty, 164 Ill. App. 3d 313, 318, 517 N.E.2d 733, 737 (4th Dist. 1987). According to the plain- District’s decision creates a conflict tiff, each of these cases holds that promissory estoppel is an among Illinois appellate courts, casts affirmative cause of action in Illinois. The plaintiff further argues that it has pleaded the elements for a claim of promis- doubt upon more than a century of the sory estoppel as set out by the Illinois Supreme Court in the Quake Constr., Inc. case. Illinois Supreme Court’s constitutional precedent and presents an issue of Whether Illinois Recognizes a general importance. New Method of Determining the Retroactivity of Statutory Enactments

John Doe v. Diocese of Dallas, et al., Gen. No. 106546, Fifth District 5-06-0383 The defendants allege that the Fifth District’s opinion conflicts with the Illinois Supreme Court’s opinion in M.E.H. The plaintiff filed a complaint against the defendants v. L.H., 177 Ill. 2d 207, 215, 685 N.E.2d 335, 339 (1987), based on alleged inappropriate sexual contact between the which held that a legislative amendment repealing a statu- plaintiff and a priest serving within the diocese. The alleged tory limitations provision could not constitutionally be ap- incident occurred in 1984, yet the complaint was not filed plied to revive already time-barred claims for childhood until November 2003, 15 years after the plaintiff reached the sexual abuse. The defendants further argue that the Illinois age of majority and four years after he recognized his inju- Supreme Court recently affirmed this principle in Sundance ries and the alleged source. Homes, Inc. v. County of DuPage, 195 Ill. 2d 257, 267-68, The defendants moved to dismiss the complaint, con- 746 N.E.2d 254, 261 (2001) in which the court stated: tending that the two-year statute of limitations formerly codi- “[u]nder Illinois law, the barring of an action by a statute of fied as 735 ILCS 5/13-202.2(b) (1994) had expired. The trial limitation creates a right in favor of the defendant, and the court granted the motion to dismiss with prejudice. action cannot later be revived.” The Illinois Appellate Court, Fifth District reversed the Additionally, the defendants aver that the Fifth District circuit court’s dismissal order, holding that the 2003 amend- misapplied the method of determining whether a statute has ments to the statute of limitations codified as 735 ILCS 5/ retroactive effect as set forth in Landgraf v. U. S. I. Film 13-202.2 retroactively revived the previously time-barred Products, 511 U.S. 244, 114 S. Ct. 1483 (1994). The defen- claims of the plaintiff. The Fifth District further noted that dant alleges that the Fifth District failed to mention or apply its decision conflicted with its own prior decision in Gallo- the threshold inquiry under Landgraf, which is whether the way v. Diocese of Springfield in Illinois, 367 Ill. App. 3d 997, statute at issue is susceptible to a construction other than one 857 N.E.2d 737 (5th Dist. 2006) as well as Kuch v. Catholic giving it a retroactive effect.

18 First Quarter 2009

a physician inserts the IUPC in the uterus, it is normally removed by a nurse prior to childbirth. He further testified that Medical Malpractice following a C-section, the operating room staff typically performs a “sponge and instrument count” to confirm that no foreign objects remain in a patient’s body, because they could cause infection, pain, and hemorrhaging. Id. at *2. By: Edward J. Aucoin, Jr. Pretzel & Stouffer, Chartered Chicago

In Petryshyn v. Slotky, Doc. Fourth District Creates a No. 4-07-0754, 2008 WL 2955566 Care Continuum for (4th Dist. July 29, 2008), the court Determining When was faced with the issue of whether a Physicians Can Testify to the physician could testify to the standard Nursing Standard of Care of care for nurses involved with A very interesting decision was handed down by the him in the delivery of a child. Appellate Court, Fourth District this past July, which could have far-reaching implications for medical malpractice defense counsel and their clients. In Petryshyn v. Slotky, Doc. No. 4-07-0754, 2008 WL 2955566 (4th Dist. July 29, 2008), the court was faced with the issue of whether a physician Along with his opinions against the defendant obstetri- could testify to the standard of care for nurses involved with cian, Dr. Priver testified in the deposition that the nurses vio- him in the delivery of a child. In Petryshyn, the defendant lated their standard of care by not inspecting the IUPC to doctor was the party moving to admit the testimony from the ensure that it was intact before discarding it. According to plaintiff’s expert physician, because that testimony pointed Priver, if the nurses had seen that the IUPC was not intact, fingers at a former defendant’s nursing staff as a cause of the the nursing standard of care required the nurses to communi- injury. While that testimony may have helped the defendant cate their inspection results to the obstetrician. Id. in that particular case, it also afforded the Fourth District an After the hospital settled, but before trial, the plaintiff opportunity to promulgate a Providing-Medical-Care Con- moved to disavow Dr. Priver’s evidence deposition testimony tinuum, whereby the court carved out areas of testimony re- that pertained to the nursing standard of care. The defendant garding the nursing standard of care about which a physician (Continued on next page) could testify. In Petryshyn, the plaintiff sued her obstetrician and the medical center at which she delivered her baby for medical About the Author malpractice, after she discovered that a portion of an intrau- terine pressure catheter (IUPC) had been left in her uterine Edward J. Aucoin, Jr. is an associate in the Chicago firm of Pretzel & Stouffer, Chartered. He has over nine years of cavity after a cesarean-section (C-section). The plaintiff experience in medical malpractice defense, commercial liti- settled with the medical center before trial, leaving only the gation, and contract litigation practice. Mr. Aucoin’s sub- obstetrician as a defendant. 2008 WL 2955566, *1. stantial client base includes private hospitals and medical practice groups, physicians and other medical profession- During discovery, the plaintiff retained David M. Priver, als, and national commercial corporations. He has exten- a board-certified obstetrician/gynecologist with 33 years of sive experience in preparing complex litigation for trial, and has second-chaired medical malpractice trials in Cook County and DuPage experience, to act as her testifying expert. Dr. Priver pro- County. Mr. Aucoin received his B.A. from Loyola University of New Or- vided an evidence deposition prior to trial, in which he de- leans and his J.D. from Loyola University of New Orleans School of Law. He scribed how an IUPC function. He also testified that although is also a member of the IDC.

19 IDC Quarterly

Medical Malpractice (Continued) trial to the Fourth District Appellate Court. obstetrician objected to the motion, arguing that he had pre- In addressing the issues before it, the Fourth District first viously adopted Dr. Priver’s opinion testimony in his Su- recognized the evolution of an expert physician’s ability to preme Court Rule 213 disclosures and intended to introduce testify regarding a health-care professional’s standard of care. the testimony at trial pursuant to Supreme Court Rule 212(c). Citing Dolan v. Galluzzo, 77 Ill. 2d 279, 281, 396 N.E.2d 13, The defendant obstetrician argued that any portion of an evi- 15 (1979), the court quoted Dolan’s finding that “to testify dence deposition may be offered by either side. Id. at *1. as an expert on the standard of care in a given school of medi- The plaintiff objected, arguing that Dr. Priver’s testimony cine, a witness must be licensed therein” and thereafter, the was inadmissible under the decision of the Supreme Court trial court has the discretion to “determine if the witness is of Illinois in Sullivan v. Edward Hospital, 209 Ill. 2d 100, qualified to testify as an expert regarding the standard of care.” 119, 806 N.E.2d 645, 657 (2004). The trial court in Petryshyn 2008 WL 2955566 at *3 (citing Dolan, 77 Ill. 2d at 285). The overruled the plaintiff’s objection, finding that Dr. Priver’s court further cited Dolan for the proposition that “[t]he prac- testimony regarding the nursing standard of care pertained titioner of a particular school of medicine is entitled to have to a matter that was “integrally related” to the functions of his conduct tested by the standards of his school.” 2008 WL the surgical “team,” which consisted of two nurses and the 2955566 at *3 (citing Dolan, 77 Ill. 2d at 283). defendant obstetrician. Id. Next, the court in Petryshyn recognized that an exception to the “same license” requirement set forth in Dolan had been established in Wingo v. Rockford Memorial Hospital, 292 Ill. App. 3d 896, 686 N.E.2d 722, 727 (2nd Dist. 1997), where the Second District concluded that Dolan’s licensing In addressing the issues before it, requirement did not apply to communications between nurses the Fourth District first recognized and doctors, because “. . . the allegations of negligence do not concern an area of medicine about which there would be the evolution of an expert physician’s a different standard [of care] between [a] physician and another school of medicine” and because “a physician should ability to testify regarding a health- be entitled to testify about what he or she is entitled to rely upon in the area of communication from a nurse in the con- care professional’s standard of care. text of an obstetrical team rendering care to a patient in a hospital.” 2008 WL 2955566 at *4 (citing Wingo, 292 Ill. App. 3d at 906). Finally, the Petryshyn court brought the evolution to its In the defense counsel’s closing argument at trial, he re- current incarnation, by citing to Sullivan, where the Supreme minded the jury that Dr. Priver testified that the operating Court of Illinois barred a physician’s expert testimony, hold- room nurses failed to perform their required duties to: (1) ing that physicians cannot testify regarding (1) the standard remove the IUPC prior to the C-section; (2) inspect all of the of care for nursing procedures or (2) a nurse’s deviation from operating room equipment following the C-section; and (3) her standard of care. The supreme court in Sullivan relied report to the defendant obstetrician if any of the equipment upon its earlier decision in Purtill v. Hess, 111 Ill. 2d 229, was not intact. Id. at *2. At the end of the trial, the jury re- 489 N.E.2d 867 (1986), and adopted its previous require- turned a verdict in the obstetrician’s favor. The plaintiff filed ments for demonstrating an expert physician’s qualifications a motion for judgment notwithstanding the verdict or, alter- and competency to testify. First, the physician must be a li- natively, for a new trial, arguing that the trial court erred by censed member of the school of medicine about which he admitting into evidence her expert physician’s testimony. proposes to testify. Second, “the expert witness must show After a hearing, the trial court granted the plaintiff’s motion that he is familiar with the methods, procedures, and treat- for a new trial, citing the holding of Garley v. Columbia ments ordinarily observed by other physicians, in either the LaGrange Memorial Hospital, 351 Ill. App. 3d 398, 813 defendant physician’s community or a similar community.” N.E.2d 1030 (1st Dist. 2004) and finding it had erred by per- Sullivan, 209 Ill. 2d at 112-13. Once the foundational require- mitting the jury to hear the portion of Dr. Priver’s testimony ments have been met, the trial court has the discretion to deter- regarding the nursing standard of care. The defendant obste- mine whether a physician is qualified and competent to state trician appealed the trial court’s decision granting the new his opinion as an expert regarding the standard of care. Id.

20 First Quarter 2009

While acknowledging the foundational requirements of cerning another health-care professional’s standard of care Purtill by way of Sullivan, the court in Petryshyn also re- or the breach of that care.” ferred to the “limited exception to this licensing requirement” At the far end of the continuum, the Petryshyn court as found in Wingo. 2008 WL 2955566 at *5. The court noted found cases “which involve the intrinsically intertwined in- that the supreme court in Sullivan expressly refused to dis- teraction between a physician and nurse when they are mem- cuss the merits of Wingo or to overrule it. The Petryshyn bers of the same surgical team.” Id. In these cases, “the phy- court then cited to Petre v. Cardiovascular Consultants, S.C., sician and nurse, each responsible for their distinct and spe- 373 Ill. App. 3d 929, 942, 871 N.E.2d 780, 792 (1st Dist. cialized responsibilities, interact as a team to substantially 2007), a First District case which reaffirmed Wingo and stated contemporaneously care for the same patient,” and go be- that “Wingo relieves a party of satisfying the licensing prong yond Wingo because they involve more than only communi- of the Purtill foundational test when the allegations of negli- cation between the physician and a nurse. Id. gence concern communications between members of different schools of medicine acting as part of the same team.” Petre, 373 Ill. App. 3d at 941. In a discussion entitled “Providing-Medical-Care Con- tinuum,” the Petryshyn court stated that the pivotal analyti- Unfortunately, the Petryshyn majority cal issue in determining whether a physician is qualified to opinion fails to explain how a testify as to the standard of care of a nurse who was a surgical team member is the nature of the interaction between the physician’s testimony regarding a physician and the nurse as they provide medical care for the same patient. 2008 WL 2955566 at *6. According to the court, nurse’s failure to communicate some- this continuum has polar opposites. At one end are Sullivan thing she is required to communicate and Garley, “which focus separately on the specialized nature of the medical care being provided by the physician or under her standard of care does not nurse, rather than on the interaction between them, because that interaction is not intrinsically intertwined with the care “involve testimony concerning another that they are individually providing.” Id. health-care professional’s standard of In the middle of the continuum, the Petryshyn court placed Wingo, which recognized that the “distinct and spe- care or the breach of that care.” cialized procedures that a physician and nurse employ to effectively care for the same patient do not occur absent interactive communication.” Id. According to the Petryshyn court, Wingo focused on the “intrinsically intertwined interaction between a physician and nurse, albeit on the limited and nar- In examining Dr. Priver’s testimony in the case before row scope of communication, rather than focusing separately them, the court found that Dr. Priver’s testimony pertains to on the specialized nature of the medical care being provided “a physician’s and nurse’s distinct and specialized responsi- by the physician or nurse.” Id. These middle-of-the-con- bilities as surgical team members and the intrinsically inter- tinuum cases usually involve a nurse’s alleged failure to com- twined interaction between those responsibilities as the phy- municate pertinent information to a physician which “had a sician and nurse care for the same patient.” 2008 WL 2955566 negative impact upon the physician’s ability to effectively at *7. Accordingly, the court determined that Dr. Priver was treat the same patient.” Id. Somehow, the Fourth District be- qualified “to testify as an expert that (1) a surgical team phy- lieves that in such a situation, “the allegations of negligence sician conducting a C-section relies on communication from do not involve testimony concerning another health-care nurse team members regarding the patient’s care; and (2) the professional’s standard of care or the breach of that care” failure to communicate information about the patient was a and thus Dolan’s licensing requirement does not apply. Un- breach of the nurse’s standard of care.” Id. The court con- fortunately, the Petryshyn majority opinion fails to explain cluded that the rationale underlying Sullivan was not impli- how a physician’s testimony regarding a nurse’s failure to cated in the case before it and ruled that the trial court abused communicate something she is required to communicate un- its discretion by granting the plaintiff’s motion for a new der her standard of care does not “involve testimony con- trial, thereby reversing that order. (Continued on next page)

21 IDC Quarterly

Medical Malpractice (Continued) Feature Article Now-retired Justice Cook submitted a dissent, wherein By: Mark H. Chu* he stated that pursuant to Sullivan, “[a] physician who is not Thomas, Mamer & Haughey, LLP a licensed nurse cannot testify as to nursing standards of care.” Champaign 2008 WL 2955566 at *8. Justice Cook continued, “Perhaps a physician should be entitled to testify about what he or she is entitled to rely upon in the area of communication from a nurse, but the Wingo exception should not be allowed to swal- low up the rule that the expert must be a licensed member of Smith v. Waukegan the school of medicine about which he proposes to testify.” Id. According to Justice Cook, this was a case where Dr. Priver Park District: testified to a specific nursing violation of the standard of care, which was not proper and should have been barred. He cor- Tort Immunity No Longer rectly pointed out, “If that duty did not exist, there was no Available for Governmental duty to communicate.” Id. So how should defense attorneys respond to the Fourth Entities in Defense of Certain District’s majority holding in Petryshyn? If you are in a court Retaliatory Discharge Claims that is not within the Fourth District, the first argument should be that the holding in Petryshyn is not binding and is a mis- In Smith v. Waukegan Park District, No. 104960, 2008 interpretation of the Illinois Supreme Court’s holding in WL 4291655 (Ill. Sept. 22, 2008), the Illinois Supreme Court Sullivan. Nowhere in Sullivan is there an exception to the held that Sections 2-109 and 2-201 of the Local Governmen- requirement that the person testifying as to standard of care tal and Governmental Employees Tort Immunity Act (the Tort must have the same license as the person against whom he or Immunity Act), 745 ILCS 10/2-109 and 2-201, did not pro- she is testifying. vide immunity for a retaliatory discharge claim based upon If you find yourself in a court that has or might adopt the the exercise of workers’ compensation rights. The Illinois reasoning of the majority in Petryshyn, then early on in dis- Supreme Court reversed the decision of the Illinois Appel- covery, while all defendants are still parties, you need to elicit late Court, Second District, which had held that, under testimony that focuses “separately on the specialized nature Buckner v. Atlantic Plant Maintenance, Inc., 182 Ill. 2d 12, of the medical care being provided by the physician or nurse” 694 N.E.2d 565 (1998), public employers are immune from and downplay the interaction between them. Carefully pre- all retaliatory discharge claims, because the Tort Immunity pared questions might be able to demonstrate that their “interaction is not intrinsically intertwined with the care that they are individually providing.” This may be difficult to accomplish in some cases simply due to the inherent nature About the Author of the nurse-physician relationship in the care of patients. Hopefully the Illinois Supreme Court will revisit the is- Mark H. Chu is an associate with Thomas, Mamer & sue in the near future. By not addressing the Wingo excep- Haughey, LLP in Champaign, Illinois. He concentrates his tion in its Sullivan decision, the supreme court has invited practice in civil litigation with an emphasis on labor, employment and immigration law. He regularly advises em- the lower courts to formulate continuums such as the Fourth ployers regarding compliance with the Americans with Dis- District did in Petryshyn. These continuums force defense abilities Act, Title VII of the Civil Rights Act, the Family and Medical Leave Act and the Immigration Reform and counsel to create artificial distinctions for the opinions of the Control Act. He has also litigated employment and commercial cases in Illi- expert physicians, which totally ignore the fact that a nois state courts and has handled matters before the Illinois Department of Human Rights. Mr. Chu received his J.D. degree from the University of Illi- physician’s testimony regarding what should have been com- nois College of Law in 2005 where he was the recipient of a CALI award for municated or done by a nurse in a team setting still amounts outstanding performance in the College’s Employment Law Clinic. He is a to testimony on the nursing standard of care. member of the Illinois Association of Defense Trial Counsel, the Illinois State Bar Association and the American Immigration Lawyers Association.

* The author would like to thank David E. Krchak, a partner with Thomas, Mamer & Haughey, LLP, for providing valuable insight and assistance in the preparation of this article.

22 First Quarter 2009

Act affords them immunity when their employees are not in processing Smith’s workers’ compensation claim, it had liable. received a medical record where Smith admitted to his phy- This article discusses Waukegan Park District and its sician that he used marijuana on a daily basis. The District effect upon public employers who face retaliatory discharge argued that, because Trigg’s decision to terminate Smith was claims. As discussed below, Waukegan Park District is sig- discretionary and because governmental entities cannot be nificant as much for its holding as it is for its application of liable for acts or omissions of their employees when the em- Buckner to retaliatory discharge claims. Buckner limited the ployees are not liable, the Tort Immunity Act provided im- scope of retaliatory discharge claims by holding that the munity. employer, not the discharging supervisor, is the only proper The circuit court granted the District’s motion to dis- defendant in a retaliatory discharge claim. Buckner, 182 Ill. miss with prejudice. The Appellate Court affirmed, holding 2d at 22. Buckner was a positive development for defense that Section 2-109 of the Tort Immunity Act provides a local counsel who represent local governmental entities. Waukegan public entity “complete immunity” against claims of retalia- Park District, however, has interpreted Buckner to bar gov- tory discharge. Smith v. Waukegan Park District, 373 Ill. App. ernmental entities from applying Sections 2-109 and 2-201 3d 626, 634, 869 N.E.2d 1093, 1100 (2d Dist. 2007). The of the Tort Immunity Act to defend against retaliatory dis- following is a discussion of the Illinois Supreme Court’s rea- charge claims in at least some circumstances. soning as to why neither Section 2-109 nor Section 2-201 of Plaintiff’s counsel may use Waukegan Park District as a the Tort Immunity Act provides immunity against a retalia- stepping stone to argue that the Tort Immunity Act does not tory discharge claim. afford immunity to governmental entities from any retaliatory discharge claims. This article anticipates and rebuts this argument by positing that Waukegan Park District may not apply to retaliatory discharge claims in other contexts. In addition, this article offers practical advice for defense coun- Section 2-109 of the Tort Immunity Act sel who represent local governmental entities. provides that “[a] local public entity is Factual and Procedural History not liable for an injury resulting from

In Waukegan Park District, the plaintiff, Gregory Smith, an act or omission of its employee worked as a park maintenance employee for the Waukegan where the employee is not liable.” Park District (the District). Smith filed a workers’ compensation claim following a workplace injury on May 8, 2002. Upon his return to work on June 24, 2002, Smith’s supervisor, Mike Trigg, requested that he undergo a drug test. Smith refused to take the drug test, alleging that it constituted retal- Section 2-109 of the Tort Immunity Act iatory harassment for filing a workers’ compensation claim. Trigg terminated him that day for refusing to take the drug Section 2-109 of the Tort Immunity Act provides that test. “[a] local public entity is not liable for an injury resulting Smith filed a retaliatory discharge claim against the Dis- from an act or omission of its employee where the employee trict, alleging that he had been retaliated against for filing a is not liable.” 745 ILCS 10/2-109. The District argued that workers’ compensation claim. The District filed a motion to Section 2-109 provided immunity. The District contended that dismiss under Section 2-619(a)(9) of the Illinois Code of Civil because Trigg’s decision to terminate Smith caused his in- Procedure, 735 ILCS 5/2-619(a)(9), asserting immunity un- jury, the District was not liable. The Illinois Supreme Court der Sections 2-109 and 2-201 of the Tort Immunity Act. In disagreed and held that Section 2-109 does not apply in re- support of its motion, the District attached an affidavit from taliatory discharge claims, because it is the public entity, and Trigg. In his affidavit, Trigg stated that District policy al- not its employee, that ultimately causes the injury in such lowed him to test an employee if the District has “reasonable claims. suspicion that he/she is under the influence of drugs or alco- In reaching its conclusion, the Illinois Supreme Court hol.” Waukegan Park District, 2008 WL 4291655 at *1. The revisited its reasoning in Buckner. In Buckner, the Illinois District argued that it had such reasonable suspicion because, (Continued on next page)

23 IDC Quarterly

Smith v. Waukegan Park District (Continued) tion 2-109, because it is the public entity, not its employee, Supreme Court held that “the only proper defendant in a re- which acts in a retaliatory discharge. To buttress its reliance taliatory discharge action is the plaintiff’s former employer.” upon Buckner, the Illinois Supreme Court pointed to language Buckner, 182 Ill. 2d at 22. The plaintiff in that case, Jack in the Workers’ Compensation Act that focuses upon the Buckner, filed a complaint against his former employer and employer’s power to terminate. Section 4(h) of the Workers’ supervisor for retaliatory discharge. Buckner alleged that his Compensation Act provides that “[i]t shall be unlawful for supervisor terminated him in retaliation for his pursuit of a any employer . . . to discharge . . . an employee because of workers’ compensation claim. Buckner’s supervisor filed a the exercise of his or her rights or remedies granted to him or motion to dismiss pursuant to Section 2-619(a)(9), arguing her by this Act.” Waukegan Park District, 2008 WL 4291655 for dismissal of the complaint because he was not Buckner’s at *4, citing 820 ILCS 305/4(h) (emphasis added). More- employer. over, the Illinois Supreme Court noted that the Tort Immu- The court in Buckner conducted a review of retaliatory nity Act carved out an exception for workers’ compensation discharge case law in Illinois and distilled two concepts. First, claims: “Nothing in this Act affects the liability, if any, of a local public entity or public employee, based on: . . . [t]he past precedent admonished against expansion of the tort of ‘Workers’ Compensation Act.’” Waukegan Park District, retaliatory discharge. Second, only the employer has the 2008 WL 4291655 at *4, citing 745 ILCS 10/2-101(c). power to hire or fire an employee. Agency law is no longer The Illinois Supreme Court then stated that, “under es- relevant to determine liability in the retaliatory discharge tablished Illinois law, public entities possess no immunized analysis. As a practical matter, the court noted that the em- discretion to discharge employees for exercising their work- ployer is incentivized to terminate an employee who has filed ers’ compensation rights.” Waukegan Park District, 2008 WL a workers’ compensation claim, in order avoid paying out 4291655 at *4. This declaration begs the question whether benefits. As a corollary, a supervisor is not incentivized to Waukegan Park District similarly bars the application of discharge an employee because, at least under the Workers’ Sections 2-201 and 2-109 immunity for retaliatory discharge Compensation Act, the supervisor is not subject to liability. claims not based upon the exercise of workers’ compensa- Applying Buckner, the court in Waukegan Park District tion rights. Indeed, Waukegan Park District and Buckner both found that Section 2-109 fails to apply to retaliatory discharge addressed retaliatory discharge claims based upon the exer- claims, because immunity only attaches in the instance of an cise of workers’ compensation rights. As further discussed act or omission by the public entity’s employee. As an alter- below, the analysis in Waukegan and Buckner might not ap- native argument, the District argued that Section 2-109, when ply to retaliatory discharge claims in other contexts. combined with Section 2-201 of the Tort Immunity Act, provided immunity because Trigg’s decision to terminate Smith Limitations of Waukegan Park District was discretionary. As discussed below, the Illinois Supreme Court rejected this argument for the same reason it found In reaching its conclusion that Sections 2-201 and 2-109 that Section 2-109 of the Act failed to provide immunity. of the Tort Immunity Act fail to provide immunity, Waukegan Park District relied not only upon Buckner, but also upon Section 2-201 of the Tort Immunity Act the Tort Immunity Act’s explicit declaration that it would not disturb rights exercised under the Workers’ Compensation Section 2-201 of the Tort Immunity Act provides that: Act. Moreover, as noted above, the Workers’ Compensation Act itself bars retaliation by employers. Except as otherwise provided by Statute, a public Defense counsel can argue that Waukegan Park District employee serving in a position involving the deter- might not apply to certain types of retaliatory discharge mination of policy or the exercise of discretion is claims. First, where the retaliatory discharge claim relies upon not liable for an injury resulting from his act or omis- Illinois common law, such as reporting a criminal act, sion in determining policy when acting in the exer- Waukegan Park District might not apply. Second, Waukegan cise of such discretion even though abused. Park District might not apply in instances where the retaliatory discharge claim is founded upon a statute that lacks an 745 ILCS 10/2-201. The Illinois Supreme Court, again anti-retaliation provision. Third, due to Waukegan Park applying Buckner, held that Section 2-201 of the Tort Immu- District’s reliance upon Buckner and the Tort Immunity Act’s nity Act failed to provide immunity in combination with Sec- statutory exception to workers’ compensation claims, its ap-

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plication may be limited to only retaliatory discharge actions based upon rights exercised under the Workers’ Compensa- tion Act. Municipal Law Creative plaintiff’s counsel will adopt the broadest interpretation of Waukegan Park District and argue that it bars application of the Tort Immunity Act to any retaliatory dis- By: Thomas G. DiCianni charge claims. Only time and decisions by the Illinois appel- Ancel, Glink, Diamond, Bush, DiCianni & late courts will determine which of the above interpretations Krafthefer, P.C. take hold. Chicago

Defense counsel can argue that EMS Immunity Revisited Waukegan Park District might not

apply to certain types of retaliatory This column previously detailed the range of immuni- discharge claims. ties available to local fire services in the variety of functions they perform. “Fire Service Liability and Immunity,” IDC Quarterly, Fourth Quarter, 2007, Volume 17, No. 4. In that column we addressed remedies available to governmental employees who provide emergency medical services (EMS), Practical Advice such as paramedics and emergency medical technicians, and the overlap between statutory protections available to them Waukegan Park District teaches two lessons. First, the in the Illinois Local Governmental and Governmental Em- Tort Immunity Act might no longer be a viable basis for a ployees Tort Immunity Act (Tort Immunity Act), 745 ILCS Section 2-619(a)(9) motion to dismiss for certain retaliatory 10/1-101, et seq., and the Emergency Medical Services Sys- discharge claims. Where the retaliatory discharge claim re- tems Act (EMS Act), 210 ILCS 50/1, et seq. That column lies on the Workers’ Compensation Act, defense counsel discussed a fascinating appellate court opinion in Abruzzo v. should forgo filing such a motion. If the plaintiff relies on City of Park Ridge, 374 Ill. App. 3d 743, 870 N.E.2d 1012 st some other basis for his or her retaliatory discharge claim, (1 Dist. 2007), where the court found that the paramedics then counsel may argue that Waukegan Park District is dis- who responded to an emergency call were absolutely immune tinguishable (as outlined above) and that the Tort Immunity under §§ 6-105 and 6-106 of the Tort Immunity Act, 745 Act is a proper basis for a Section 2-619(a)(9) motion. Sec- ILCS 10/6-105 and 6-106, rather than subject to liability for ond, defense counsel should advise their local government willful and wanton conduct under the EMS Act. The column clients that, because the Tort Immunity Act may no longer mentioned that at the time a petition for leave to appeal was provide protection for some retaliatory discharge claims, the pending in the Illinois Supreme Court. The court ultimately defense of such claims should be focused upon breaking the (Continued on next page) causal connection between the protected activity and the termination. In other words, documentation of legitimate business reasons for terminating employees remains the golden About the Author rule for defending against retaliatory discharge claims. In a post-Waukegan Park District world, defense coun- Thomas G. DiCianni is a partner in the law firm of Ancel, sel will need to remain vigilant to ensure that the Tort Immu- Glink, Diamond, Bush, DiCianni & Krafthefer, P.C. He concentrates his practice in general litigation, defense of nity Act still has a role to play in the defense of retaliatory government entities and public officials, municipal law, and discharge claims. the representation of governmental self-insurance pools.

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Municipal Law (Continued) used, but from the broader policy declarations behind the granted the petition for leave to appeal; and, unfortunately respective statutes. Because the Tort Immunity Act applied for those of us who defend local governments, as well as the to a wide range of potential tortious conduct by governmen- fire service personnel who provide those difficult services, tal defendants, and the EMS Act applied only to the specific the court reversed. Abruzzo v. City of Park Ridge, Doc. No. type of allegedly tortious acts at issue in the case, the Illinois 104935, 2008 Ill. LEXIS 1413 (October 2, 2008). Supreme Court thought the EMS Act more specific. Because The supreme court’s opinion is a study in competing the EMS Act was designed to govern the emergency services approaches to statutory interpretation. The case arose out of EMS personnel provide, the court’s decision suggests no a call by the family of a 15-year old boy who lost conscious- immunity for willful and wanton conduct by EMS personnel ness from a drug overdose. The complaint alleged that para- during an emergency call, regardless of the nature of the con- medics and other EMS personnel responded, found the boy duct. to be “unresponsive,” and left without rendering any assis- Abruzzo could indicate a trend. In Moore v. Green, 219 tance or even transporting him to a hospital, and that he died Ill. 2d 470, 848 N.E.2d 1015 (2006), the Illinois Supreme as a result of these willful and wanton acts and omissions. Court found that the limited immunity found in the Domes- tic Violence Act, 750 ILCS 60/101, et seq., applied to a failure to protect the plaintiff from domestic violence, rather than the absolute immunities for failure to provide police protection in the Tort Immunity Act. Moore, like Abruzzo, was based Governmental defense counsel on the purpose of the Domestic Violence Act. Governmental defense counsel need to be keenly aware need to be keenly aware and resistant and resistant to any trend that waters down Tort Immunity to any trend that waters down Act protections. The Tort Immunity Act is the foundation for local governmental immunity; and as more legislative ac- Tort Immunity Act protections. tions address specific facets of governmental conduct, the Tort Immunity Act’s protections can get diminished. Whether the legislature actually intended such a result, or whether such a result from a public policy perspective is correct, may not necessarily be decisive. The defense raised in a motion to dismiss was that the The supreme court in Abruzzo made a special point that City of Park Ridge was immune under § 6-105 and § 6-106(a) the facts as alleged there were unusual, because EMS per- of the Tort Immunity Act, 745 ILCS 10/6-105, 6-106(a), sonnel normally do not leave the scene without providing which together immunize local governments and their em- any emergency aid to the person in distress. The implication ployees from liability for failing to examine or adequately is that the limited immunity for negligence would ordinarily examine, or diagnose or prescribe, for mental or physical be sufficient to protect EMS personnel, even if not in that conditions. The defendant, City of Park Ridge, argued that particular, unusual situation. because the complaint alleged that the paramedics provided Defense counsel should also strongly challenge any ef- no medical service, but merely failed to examine for or diag- fort to minimize the willful and wanton standard or to blur nose a condition for which an emergency medical service the distinction between negligence and willful and wanton might have been needed, the City was absolutely immune conduct. under the Tort Immunity Act. The plaintiff, of course, argued Fire service administrators and their lawyers know well that the EMS Act’s willful and wanton conduct exception to the mounting challenges those services face. Even the popu- blanket immunity applied. The appellate court agreed with lar media has found these difficulties newsworthy. See Volk, the City, finding that § 6-105 and § 6-106(a) were more spe- “Special Report – Can 911 Be Saved?,” Men’s Health, p. cific than the competing EMS Act immunity; and in doing 138, Dec. 2008. As resources dwindle and the demands in- so, the court painstakingly focused on the precise language crease, stressed systems can only lead to greater potential of the respective statutes as though explicating a complex for liability. Diminished immunity could further threaten sys- poem. tems millions of persons rely on for life-saving assistance. The supreme court took a different approach. It decided the case on legislative intent, not from the exact language

26 First Quarter 2009

the sling, falling eight floors to the ground level where it struck and killed Ready. Id. Recent Decisions Ready was survived by his wife and two children. The wrongful-death suit that followed named two defendants, United and BMW. Both defendants filed third-party complaints against Midwest pursuant to the Joint Tortfeasor Con- By: Stacy Dolan Fulco and Katherine K. Haussermann tribution Act (Contribution Act) (740 ILCS 100/0.01 et seq.). Cremer, Shaughnessy, Spina, Jansen The plaintiff thereafter amended her complaint, adding Mid- & Siegert LLC west as a defendant. The plaintiff reached settlement agree- Chicago ments totaling $1.113 million with BMW and Midwest. United did not object to the settlements, and the trial court found that the settlements had been reached in good faith. Ready, 2008 WL 5046833 at *1. Allocation of Fault At Trial Prior to trial, the parties filed numerous motions in limine. As a result of the rulings, United was not allowed to present any evidence regarding the conduct of the settling defendants. In addition, the trial court denied United’s motion to list BMW Illinois Supreme Court Rules That Settling and Midwest on the verdict form so that if the jury found Defendants Are Not Included On the Jury United at fault, it could consider whether to allocate some Verdict Form portion of the fault not only to Ready, but also to his employer and the general contractor. Id. On November 25, 2008, the Illinois Supreme Court, via The case proceeded to trial with United as the sole de- a plurality opinion written by Justice Freeman, ruled that set- fendant. The jury found United liable for negligence and tling defendants are not to be included on the jury verdict awarded damages of $14.23 million. Based on section 2-1117 form and are not allocated any fault at trial. Ready v. United/ of the Code of Civil Procedure (735 ICLS 5/2-1117), the trial Goedecke Services, Inc., Doc. No. 103474, 2008 WL 5046833 court found United jointly and severally liable for the amount (Ill. November 25, 2008). Chief Justice Fitzgerald and Jus- of the verdict remaining after offsets for Ready’s compara- tice Burke concurred in the opinion. Justice Kilbride wrote tive negligence (35%) and the settlement amounts paid by a specially concurring opinion, while Justice Garman wrote BMW and Midwest. United was held liable in the amount of a dissent in which Justice Karmeier concurred. Justice Rob- $8.137 million. Ready, 2008 WL 5046833 at *1. erts did not participate in the decision. In Ready, a pipe-refitting project was under way at the (Continued on next page) Midwest Generation, LLC (Midwest) power plant in Joliet, Illinois, where Michael Ready was employed as a maintenance mechanic. As part of the project, scaffolding material About the Authors had to be raised from the ground to the level of the eighth floor. The general contractor of the project, BMW Construc- Stacy Dolan Fulco is a partner at the Chicago law firm of Cremer, Shaughnessy, Spina, Jansen & Siegert LLC. She tors, Inc. (BMW), had subcontracted with United/Goedecke practices primarily in the areas of premises liability, prod- Services, Inc. (United) to perform the scaffolding work, in- ucts liability and wrongful death defense. She received her undergraduate degree at Illinois State University and her cluding the lifting of scaffolding materials. Ready, 2008 WL J.D./M.B.A. degree from DePaul University. She is a mem- 5046833 at *1. ber of the IDC. On December 23, 1999, a United employee was supervising the lifting of wooden trusses. Another United employee was rigging the trusses for lifting. Ready was standing be- Katherine K. Haussermann is an associate at the law firm neath the rigging so that he could give hand signals to the of Cremer, Shaughnessy, Spina, Jansen & Siegert LLC. She operator of the tugger that was being used to lift the trusses. practices primarily in the areas of general tort defense and premises liability. She received her undergraduate degree The tugger was owned by Midwest and was being operated at the University of Illinois at Urbana-Champaign and her by a Midwest employee. Eight trusses were lifted without J.D. from Loyola University Chicago School of Law. She incident. As the ninth truss was being lifted, it slipped out of is a member of the IDC.

27 IDC Quarterly

Recent Decisions (Continued) 735 ICLS 5/2-1117 (2002). On appeal, United argued that the trial court had erred in failing to include the settling defendants on the verdict form The Justice Freeman’s plurality opinion noted that when to allow the jury to determine their share of fault, if any, for interpreting the meaning of a statute, the primary objective the fatal accident. If the jury had been asked to consider the is to ascertain and give effect to the intent of the legislature. relative fault of the settling parties, United argued, its share Ready, 2008 WL 5046833 at *3 (citing DeLuna v. Burciaga, of fault might have been set at less than 25% and, under sec- 223 Ill. 2d 49, 59, 857 N.E.2d 229 (2006)). Per Justice tion 2-1117, United would have been only severally liable. Freeman’s opinion, the best evidence of the legislature’s in- The appellate court concluded that, under section 2-1117, a tent is the language of the statute, which must be given its non-settling defendant’s fault should be assessed relative to plain and ordinary meaning. Id. at *3 (citing Hadley v. Illi- the fault of all defendants, including settling defendants. The nois Department of Corrections, 224 Ill. 2d 365, 371, 864 appellate court held that BMW and Midwest should have N.E.2d 162 (2007); Paris v. Feder, 179 Ill. 2d 173, 177, 688 been included on the verdict form for purposes of fault ap- N.E.2d 137 (1997)). Per the plurality opinion, if the language portionment. The court also concluded, contrary to the cir- of a statute is ambiguous, courts may employ tools of inter- cuit court, that evidence relating to the culpability of the pretation to ascertain the meaning of a provision. Id. at *? settled defendants was relevant and admissible. Id. at *2. (citing Wade v. City of North Chicago Police Pension Board, The central issue in the appeal to the Illinois Supreme 226 Ill. 2d 485, 511, 877 N.E.2d 1101 (2007); DeLuna, 223 Court was whether settled tortfeasors are “defendants sued Ill. 2d at 59). by the plaintiff” within the meaning of section 2-1117 of the Code. The plaintiff argued that the statute unambiguously excludes settling defendants from the apportionment of fault. In contrast, United contended that the statute unambiguously requires a jury to allocate fault to settling defendants. Id. The question before the court was Section 2-1117 was amended in 2003. The parties disagreed as to which version of section 2-1117 applied in the whether settling defendants such case at bar. The appellate court concluded that the pre-amendment version of the statute was applicable and the parties did as BMW and Midwest are “defendants not dispute that point on appeal to the Illinois Supreme Court. sued by the plaintiff” within the Therefore, the court’s analysis was limited to the version of section 2-1117 in effect at the time of the plaintiff’s accident, meaning of section 2-1117. i.e., the 1986 version, which provides:

Joint Liability. Except as provided in Section 2-1118, in actions on account of bodily injury or death or physical damage to property, based on negligence, The first sentence of section 2-1117 addresses liability or product liability based on strict tort liability, all for a plaintiff’s medical expenses. The second and third sen- defendants found liable are jointly and severally li- tences of 2-1117 deal with liability for all other damages. able for plaintiff’s past and future medical and medi- According to the second and third sentences of the statute, a cally related expenses. Any defendant whose fault, defendant whose fault is 25% or greater is held jointly and as determined by the trier of fact, is less than 25% of severally liable for these other damages, while a defendant the total fault attributable to the plaintiff, the defen- whose fault is less than 25% is held only severally liable. In dants sued by the plaintiff, and any third party de- making this determination, the fault to be considered is that fendant who could have been sued by the plaintiff, of “the plaintiff, the defendants sued by the plaintiff, and any shall be severally liable for all other damages. Any third party defendants who could have been sued by the plain- defendant whose fault, as determined by the trier of tiff.” 735 ICLS 5/2-1117 (2002). The relevant phrase, for fact, is 25% or greater of the total fault attributable purposes of the court’s analysis, is “defendants sued by the to the plaintiff, the defendants sued by the plaintiff, plaintiff.” Ready, 2008 WL 5046833 at *3. and any third party defendants who could have been The question before the court was whether settling de- sued by the plaintiff, shall be jointly and severally fendants such as BMW and Midwest are “defendants sued liable for all other damages. by the plaintiff” within the meaning of section 2-1117. Not-

28 First Quarter 2009

ing that “sued” is in the past tense, United argued that defen- mining whether the defendants meet the 25% threshold of dants dismissed from an action prior to verdict were defen- responsibility requisite for joint liability.” In contrast, Skaggs dants who had been “sued by the plaintiff.” Citing Lannom v. Senior Services of Central Illinois, Inc., 355 Ill. App. 3d v. Kosco, 158 Ill. 2d 535, 634 N.E.2d 1097 (1994), United 1120, 1129, 823 N.E.2d 1021 (4th Dist. 2005), held that a contended that all defendants, including settling defendants, settling defendant does not lose its status as a defendant sued must be included in the apportionment of fault. The plaintiff by the plaintiff, and settling defendants therefore are to be argued that dismissed or former defendants are not defen- included in the apportionment of fault. See also, Heupel v. dants and also cited Lannom in support of her view. Ready, Jenkins, 379 Ill. App. 3d 893, 903, 884 N.E.2d 1263 (1st 2008 WL 5046833 at *3. Dist. 2008) (concluding that section 2-1117 applies to all The plurality opinion of Justice Freeman rejected the tortfeasors, including those who settled with the plaintiff). parties’ simultaneous claims that Lannom supports their op- Finally, Justice Freeman’s opinion noted that although the posite viewpoints. The opinion explained that the relevant difference in appellate court interpretations of section 2-1117 issue in Lannom was whether section 2-1117 prohibited the is not dispositive as to whether the statute is ambiguous, it dismissal of a defendant or third party from an action where strongly suggested that it is. Ready, 2008 WL 5046833 at *5. such dismissal was otherwise warranted. The Ready appeal According to Justice Freeman’s opinion, where a statute presented a different issue: whether section 2-1117 requires is ambiguous, “courts may look to tools of interpretation to the inclusion of settled and otherwise dismissed defendants ascertain the meaning of a provision.” Id. (citing DeLuna, in the allocation of fault. Id. at *4. 223 Ill. 2d at 59; Wade, 226 Ill. 2d at 511.) One is the prin- The plurality opinion also disagreed with both the plain- ciple that, where the legislature chooses not to amend a stat- tiff and United that section 2-1117 is unambiguous with re- ute after a judicial construction, it is presumed that the legis- gard to whether settled tortfeasors are to be included in the lature has acquiesced in the court’s statement of the legisla- apportionment of fault. Justice Freeman’s opinion stated that tive intent. Id. (citing Wakulich v. Mraz, 203 Ill. 2d 223, 233, a statute is ambiguous when it is capable of being under- 785 N.E.2d 843 (2003); and Bruso v. Alexian Brothers Hos- stood by reasonably well-informed persons in two or more pital, 178 Ill. 2d 445, 457-59, 687 N.E.2d 1014 (1997)). different senses. See, e.g., Wade, 226 Ill. 2d at 511. The opin- As noted above, in 1995, the appellate court in Blake ion went on to explain that the phrase “defendants sued by held that, under section 2-1117, settling defendants were not the plaintiff” is not defined in the statute. The opinion pro- to be included in the apportionment of fault. Blake, 273 Ill. vided the standard dictionary definitions of “sue” and deter- App. 3d at 376. The 2003 amendment to section 2-1117 did mined that they provided no help in determining which of not address this prior holding in Blake. The plurality opinion the contradictory views might have been intended by the leg- determined that the legislature’s failure to address Blake’s islature. Ready, 2008 WL 5046833 at *4. holding at that time is an indication of the legislature’s ac- Justice Freeman’s opinion also found that the issue was ceptance, as of 2003, of this judicial interpretation of section not clarified by an examination of the statute as a whole. The 2-1117. Ready, 2008 WL 5046833 at *5 (citing Yoder v. opinion found no clear indication of a legislative preference Ferguson, 381 Ill. App. 3d 353, 377-78, 885 N.E.2d 1060 for either of the parties’ asserted meanings over the other. (1st Dist. 2008). Therefore, the opinion concluded that the statute is ambigu- Justice Freeman’s opinion also noted the rule that an ous in regard to whether it includes within its scope settling amendment to a statute creates a presumption that the amend- tortfeasors such as BMW and Midwest. Id. ment was intended to change the law. Ready, 2008 WL The opinion further explained that its determination of 5046833 at ? (citing People v. Hicks, 119 Ill. 2d 29, 34, 518 ambiguity finds support in the conflicting interpretations of N.E.2d 148 (1987)). The plaintiff cited this principle in ar- the statute by the appellate courts. Id. In Blake v. Hy Ho Res- guing that the amendments included in Public Act 89-7, en- taurant, Inc., 273 Ill. App. 3d 372, 376, 652 N.E.2d 807 (5th titled “Tort Reform Act of 1995,” indicate that settled Dist. 1995), the appellate court held that defendants who had tortfeasors were not to be included in the apportionment of settled were no longer defendants in the suit and were not to fault under the original 1986 statute. The plaintiff pointed in be included in the apportionment of fault under section 2- particular to the Public Act 89-7 amendments to section 2- 1117. In Lombardo v. Reliance Elevator Co., 315 Ill. App. 3d 1116 of the Code, which stated that settling tortfeasors were 111, 125, 733 N.E.2d 874 (1st Dist. 2000), the appellate court to be included on the verdict form. Therefore, the plaintiff cited Blake and concluded that Blake “establish[ed] guide- argued, this amendment constituted recognition by the legis- lines for using the attributions of fault for purposes of deter- (Continued on next page)

29 IDC Quarterly

Recent Decisions (Continued) positions is, in our view, a task better left to the legislature.” lature that settling tortfeasors were not originally included in Id. at *7 (citing Heckendorn v. First National Bank of Ot- the apportionment of fault. Ready, 2008 WL 5046833 at *6. tawa, 19 Ill. 2d 190, 194-95, 166 N.E.2d 571 (1960); Board In Best v. Taylor Machine Works, 179 Ill. 2d 367, 689 of Education of Dolton School District 149 v. Miller, 349 Ill. N.E.2d 1057 (1997), the Illinois Supreme Court held Public App. 3d 806, 811, 812 N.E.2nd 688 (1st Dist. 2004)). Act 89-7 unconstitutional in its entirety. As a result, section In sum, the plurality opinion noted that it disagreed with 2-1116, as well as section 2-1117, which also was amended the appellate court’s holding that a remaining defendant’s by Public Act 89-7, reverted to the original language of the culpability must be assessed relative to the culpability of all 1986 version, i.e., the language in effect prior to the adop- defendants, including settling defendants. Therefore, per the tion of Public Act 89-7. plurality opinion and Justice Kilbride’s special concurrence, According to the plaintiff, the 1995 amendment, which the court reversed that portion of the appellate court’s judg- includes settling defendants in the apportionment of fault, is ment that had reversed the circuit court as to liability. Ready, a strong indication that the 1986 version was not intended to 2008 WL 5046833 at *7. include such defendants. The plurality opinion agreed with the plaintiff that the 1995 amendments are a strong indication that settling defendants were not meant to be included in the apportionment of fault under the 1986 statute. Ready, 2008 Justice Garman analyzed the use of WL 5046833 at *6. Following this analysis, and based on the well-established the word “sue” and determined that principles regarding (1) the legislature’s failure to amend a the phrase used in section 2-1117, statute following a judicial construction, and (2) the amendment of a statute to add a new provision, the plurality opin- “defendants sued by the plaintiff,” ion concluded that section 2-1117, as enacted in 1986, was never intended to include settling tortfeasors in the appor- is in the passive voice, past tense. tionment of fault. Id. at *7. Because it is in the past tense, Justice Freeman’s opinion went on to provide what was felt to be additional support for this conclusion. Id. The opin- Justice Garman determined that it ion pointed to statements made by Illinois Senator John Cullerton during floor debate on Senate Bill 1296, which was clearly refers to all defendants against aimed at amending section 2-1117. On March 20, 2007, during the discussion of Senate Bill 1296, Senator Cullerton whom the plaintiff filed suit. provided some historical background regarding section 2- 1117. Senator Cullerton emphasized that Senate Bill 1296 was intended to clarify “what the intent of the 1986 law was. It just makes it clear, if you settle with somebody, their names As noted above, Justice Garman wrote a dissenting opin- don’t go on the verdict form.” 95th Ill. Gen. Assem., Senate ion in Ready, joined by Justice Karmeier. Justice Garman Proceedings, March 20, 2007, at 77 (statements of Senator dissented because she believes that the phrase “defendants Cullerton). The plurality opinion admitted that the senator’s sued by the plaintiff” unambiguously refers to those indi- statements were non-binding, but found that they were in- viduals or entities against whom the plaintiff filed suit. Id. at formative and served to confirm the conclusion regarding *11 (Garman, J., dissenting). Justice Garman analyzed the the meaning of section 2-1117. Ready, 2008 WL 5046833 at use of the word “sue” and determined that the phrase used in *7. section 2-1117, “defendants sued by the plaintiff,” is in the Finally, Justice Freeman’s opinion noted some of the passive voice, past tense. Because it is in the past tense, Jus- policy arguments made by United and the plaintiff. United tice Garman determined that it clearly refers to all defen- argued that the exclusion of settling defendants from the ap- dants against whom the plaintiff filed suit. She went on to portionment of fault results in unfairness. The plaintiff ar- note that if the legislature had intended this provision to ap- gued that the inclusion of settling tortfeasors in the alloca- ply to only those defendants remaining in the lawsuit at the tion of fault would discourage future settlements. The opin- time of trial, it would have used the present tense of the par- ion responded that “deciding between such competing policy ticiple. Id. at *13.

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Justice Garman further noted that “the plain meaning of good questions about how the plurality’s opinion will be the statutory language, which is—after all—the best indica- handled. “Under the plurality’s rule, if there are three defen- tor of legislative intent [citation removed], is consistent with dants in the case when the trial commences, but one settles the simple definition found in Black’s Law Dictionary and during trial, after evidence of that defendant’s fault has been the first of the two usages described in Webster’s.” Id.. Ac- introduced, must the trial start over? What if another defen- cording to Justice Garman’s dissent, under those definitions, dant settles during jury deliberations, after the jury has been “United, Midwest, and BMW are all ‘defendants sued by the instructed on the allocation of fault? Must a mistrial be de- plaintiff’ because the plaintiff instituted a lawsuit against each clared?” Id. at *21. of them (Black’s Law Dictionary 1473 (8th ed. 2004)), ‘seeking justice by legal process,’ by ‘bringing an action against’ them (Webster’s Third New International Dictionary 2284 (2002)).” Id. at *14. It is expected that this decision will Justice Garman concluded that allocating fault among the plaintiff and all defendants sued by the plaintiff is not only have a strong impact on minimally required by the plain language of section 2-1117, but also it is entirely consistent with the legislative goal of protecting mini- responsible defendants; and we can mally responsible tortfeasors from excessive liability. Id. (cit- expect to see plaintiffs naming more ing Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d 64, 78, 783 N.E.2d 1024 (2002)). Justice Garman felt the result “deep pocket” minimally responsible reached by the plurality was contrary to those goals for at least three reasons. First, if fault is allocated among a plaintiff and defendants in the future. all of the defendants sued, the plaintiff may be more likely to be made whole because his own degree of fault may be reduced. Ready, 2008 WL 5046833 at *20. Second, the plurality’s reading invites future plaintiffs In sum, Justice Garman’s dissent determined that the to reject reasonable settlement offers from minimally respon- plain language of section 2-1117 reflects the balance struck sible defendants with “deep pockets” in an effort to keep such by the legislature between the potentially competing goals defendants in the case until judgment. Furthermore, under of full compensation to injured plaintiffs and fair imposition the plurality’s reading of section 2-1117, such a minimally of liability upon defendants. In negligence and product li- responsible defendant will not be allowed to present evidence ability actions involving personal injury or death or physical of other defendants’ shares of fault or to have the jury appor- damage to property, a defendant will be jointly and severally tion fault among all of the parties who might have been reliable only if his fault is determined to be 25% or more of the sponsible for the plaintiff’s injuries. Instead, a defendant who total fault. When attributing total fault, the trier of fact is to is a mere 1% at fault for an injury will be liable for the entire consider the fault of “the plaintiff, the defendants sued by amount of the judgment, less the amount of the settlements the plaintiff, and any third party defendants who could have with more culpable defendants. Justice Garman noted that been sued by the plaintiff.” 735 ILCS 5/2-1117. For these although such a result would fully compensate the injured reasons, Justice Garman would hold that the phrase “defen- plaintiff, it would do so by imposing excessive liability on a dants sued by the plaintiff” in section 2-1117 unambiguously minimally responsible defendant. Justice Garman felt that would include all three defendants in Ready; and she would such a result is not consistent with the public policy of this have affirmed the judgment of the appellate court. Id. at *21. state as expressed by the legislature. Id. at *21. Justice Garman’s dissenting opinion is well-reasoned and Third, under the plurality’s holding, a defendant’s share her conclusion is sound. Unfortunately, her interpretation did of liability will be determined only if that defendant has not not prevail. Yet Justice Garman does clearly point out the reached a good-faith settlement with the plaintiff at the time practical issues that will arise under the plurality’s decision, judgment is entered. Justice Garman’s dissent notes that such about which the defense bar must be aware. It is expected a rule is unworkable in practice because it is not uncommon that this decision will have a strong impact on minimally re- for one of several defendants to reach a settlement with the sponsible defendants; and we can expect to see plaintiffs plaintiff during trial, or even while the jury is deliberating. naming more “deep pocket” minimally responsible defen- From a practical standpoint, Justice Garman raised several dants in the future.

31 IDC Quarterly

Feature Article of a vehicle after an accident, whatever damage they show, By: Martin K. Morrissey are relevant to facts in issue in an auto negligence case. Pho- Reed, Armstrong, Mudge & Morrissey, P.C. tos that show little or no vehicle damage tend to prove a low Edwardsville speed accident, and little, if any, resulting injury. Although this seems to be a simple matter of common sense, since the DiCosola decision some trial courts have ceased to be governed by the obvious. This article will discuss the history of the issue in the Illinois appellate courts, and the significance of the recent The Appellate Court Fronabarger decision. It will identify the basic flaws in the Administers a Healthy Dose analysis underlying the decisions in DiCosola and Baraniak v. Kurby, 371 Ill. App. 3d 310, 862 N.E.2d 1152 (1st Dist. of Common Sense to the 2007), and problems associated with needless expansion of Vehicle Photograph an “expert rule” into the area of photographic evidence. It will discuss how courts outside Illinois have addressed the Admissibility Issue issue, and how Fronabarger stands with virtually all other courts addressing the issue in holding that car accident photos are generally admissible in a car accident case regardless I. Introduction of expert interpretation.

In Fronabarger v. Burns, __ Ill. App. 3d __, 895 N.E.2d II. Vehicle Photographs Issue in the Appellate Court 1125 (5th Dist. 2008), the Illinois Appellate Court Fifth Dis- trict affirmed that post-accident vehicle photographs (“pho- Before DiCosola, even in cases where negligence was tos” or “photographs”) in a vehicle negligence case are rel- not an issue, the general relevancy and admissibility of ve- evant and admissible, and can be provided to the jury with- hicle photographic evidence was recognized. Cancio v. White, out the necessity of expert interpretation. Fronabarger ap- 297 Ill. App. 3d 422, 697 N.E.2d 749 (1st Dist. 1998); Maple plied a traditional, common sense relevancy analysis for ad- v. Gustafson, 151 Ill. 2d 445, 603 N.E.2d 508 (1992). It was mission of photographs. Photographs that showed minimal only necessary for a witness to identify the photo as accu- damage to the vehicles were relevant to the nature and extent rately depicting the vehicle’s condition as it appeared after of the plaintiff’s claimed injuries. Id. at 1130. Additionally, the accident. Casson v. Nash, 74 Ill. 2d 164, 384 N.E.2d 365, the court held that a physician expert witness was qualified 368 (1978); Greig v. Griffel, 49 Ill. App. 3d 829, 364 N.E.2d to testify to the relationship between photographs evidenc- 660, 664 (2d Dist. 1977). When properly authenticated, and ing a low speed contact and the plaintiff’s claimed injuries. when relevant to illustrate or corroborate testimony, photos Id. at 1131. are generally admitted into evidence. People v. Smith, 152 A reaffirmation of traditional relevancy analysis on the issue is welcome. Since DiCosola v. Bowman, 342 Ill. App. 3d 530, 794 N.E.2d 875 (1st Dist. 2003), when the Appellate About the Author Court, First District upheld a trial court’s in limine bar of vehicle photographs, plaintiffs have argued that photos in typical automobile accident cases must always be suppressed Martin K. Morrissey is a partner in the Edwardsville, Illi- unless an expert witness explains to the jury the photograph’s nois firm of Reed, Armstrong, Gorman, Mudge & Morrissey, P.C. He has tried numerous cases in the areas of personal relationship to the claimed injury. Plaintiff attorneys appre- injury, death, vehicle and truck accident; products, premises, ciate the truth of the proverb “a picture is worth a thousand professional liability and insurance law. A 1985 graduate words.” Thus, the inadmissibility argument is typically made of Southern Illinois University Law School, he has practiced law in the State and Federal Courts of Southern Illi- when the photographs show little impact damage to the ve- nois for over twenty years. Morrissey belongs to the Madison County, Illinois hicles. If the photos show substantial damage, the plaintiff State and American Bar Associations. He is a member of the American Board of Trial Advocates (ABOTA) and served as president of the Missouri-South- often introduces the photos to argue that significant injuries ern Illinois Chapter in 2004. He now serves on the National Board of Direc- were likely sustained in the accident. tors of ABOTA. It seems elementary that photos depicting the condition

32 First Quarter 2009

Ill. 2d 229, 604 N.E.2d 858, 872 (1992). A trial judge has erty damage depicted or how it could be related to the always had discretion to admit or deny photographic evi- plaintiff’s claimed injuries. Baraniak, 862 N.E.2d 1152, 1157. dence; but apparently photographic evidence in automobile The defense attorney told the court that he merely intended negligence cases was so obviously useful that photo relevancy to cross-examine the plaintiff on the photographs. The trial – its tendency to prove or disprove a fact of consequence – court in its discretion allowed the cross exam. The defense was rarely disputed. attorney apparently challenged the plaintiff’s credibility with the photographs after she testified that the impact was “hard.” A. First District, DiCosola and Baraniak Id. at 1158. The photographs must have suggested a differ- Although the plaintiff’s injury was in dispute, the ent reality. The appellate court held the cross-examination DiCosola trial court, for reasons not clear from the opinion, was improper. Cross-examination would permit “what the granted the plaintiff’s motion in limine to bar all photographic courts have already determined is improper absent expert evidence of the vehicles post-accident. DiCosola, 794 N.E.2d testimony . . . to argue or even imply that there is a correla- 875, 878. The case involved a claimed elbow injury, and the tion between the extent of vehicular damage and the person’s defense wanted to use the photographs to argue the impact injuries caused by the accident.” Id. at 1158-59. The words was insufficient to have caused the injury. The appellate court used here made the court’s novel expert idea sound like it upheld the bar over the dissent of Justice Frossard. The ma- was already accepted law. The prior expert suggestion in jority downplayed as dicta specific language from a prior DiCosola appeared mandatory, and deference to the trial First District case holding that “photos of the plaintiff’s ve- court’s discretion was abandoned. Baraniak suggested that hicle were relevant to the nature and extent of plaintiff’s dam- post-accident vehicle photographs were irrelevant and always ages.” DiCosola, Id. at 879 (quoting Cancio, 697 N.E.2d at inadmissible unless expert testimony was used to explain 756.) Even a supreme court case that impliedly recognized them. Baraniak, Id. at 1159. the relevancy of vehicle photographic evidence to injury issues was distinguished as having not specifically addressed the photo admissibility issue. DiCosola, 794 N.E.2d at 879 (stating the admissibility of photos was not squarely before the court in Maple v. Gustafson, 603 N.E.2d at 514.) Baraniak suggested that post-accident That a tradition of obvious vehicle photo relevancy was vehicle photographs were irrelevant so well grounded in the courts such that the issue rarely arose, did not concern the DiCosola court. Moreover, rather than and always inadmissible unless expert rigorously apply traditional relevancy analysis to the trial court’s ruling (i.e., whether the photograph made a fact in testimony was used to explain them. dispute more probably true or not), the DiCosola court paid homage to the trial court’s broad discretion to classify such evidence as irrelevant. DiCosola, 794 N.E.2d at 879. The court then seemed to condition photo admissibility on expert B. Third District, Ferro v. Griffiths testimony to explain how the vehicle damage related to the After DiCosola but before Baraniak was decided, the injury, claiming “consistency” with the Illinois Supreme Court Illinois Appellate Court Third District weighed in on the is- case Voykin v. DeBoer, 192 Ill. 2d 49, 733 N.E.2d 1275 (2000). sue in Ferro v. Griffiths, 361 Ill. App. 3d 738, 836 N.E.2d DiCosola, 794 N.E.2d at 880. The DiCosola opinion pre- 925 (3rd Dist. 2005). In that case, the defendant hit a van in sumed jurors are incapable of weighing the significance of which the plaintiff was a passenger. The defendant said the photos for themselves. Thus, DiCosola became an open in- photographs were admissible to demonstrate a low speed vitation to plaintiff’s attorneys to move against admission of contact and unlikely injury. The trial court agreed to admit any post-accident photos demonstrating minimal damage. the photographs and the appellate court, over Justice Although DiCosola did not categorically hold that ex- Holdridge’s dissent, agreed that the trial court appropriately pert testimony was always necessary to admit vehicle photo- exercised its discretion. A trial court should determine if the graphs, the court said as much in its later Baraniak decision. photos make the plaintiff’s injury more or less probable, i.e., There the plaintiff filed a motion in limine to bar the undertake a relevancy analysis. The appellate court did not defendant’s use of photographs claiming that none of the identify any bright line rule of admissibility or inadmissibil- medical experts would give opinion testimony on the prop- (Continued on next page)

33 IDC Quarterly

Vehicle Photograph Admissibility (Continued) reasons. A jury needs to see the photographs. Photographic ity for photographs. evidence lets a jury gauge the event and the credibility of The trial court in Ferro had decided the jury could prop- witnesses describing the event. The case also reaffirms that erly relate vehicular damage depicted in the pictures to the jurors are capable of weighing photographic evidence them- injury without the aid of an expert, and the court’s discretion selves and applying common sense and experience to the would not be disturbed by the appellate court. The case up- evidence. held the discretionary authority of the trial judge to decide on the admissibility of such photographs without expert assistance. The appellate court indicated that ordinary relevancy analysis was necessary, but that it would also be advisable to consider whether a lay person could evaluate the evidence The Fronabarger case involved a without expert assistance, referencing language from Voykin minor rear-end contact, although the v. DeBoer. Ferro, 836 N.E.2d at 929. The court did not examine whether a Voykin analogy was appropriate. Depend- plaintiff treated for over a year ing on the case, experts might be required but in the case before it, the pictures by themselves were relevant. afterwards with a chiropractor. The appellate court held that the jury was C. Fifth District, Jackson v. Seib and Fronabarger v. Burns capable of assessing the relationship In Jackson v. Seib, 372 Ill. App. 3d 1061, 866 N.E.2d 663 (5th Dist. 2007), the plaintiff claimed various injuries between the vehicular damage and the after a rear-end accident, and told his initial treating physi- claimed injury to the plaintiff. cians that he was struck from the rear by a vehicle traveling 50 miles per hour. The photographs were provided to an examining orthopedic physician, who concluded that they did not demonstrate an impact sufficient to cause any serious injury to the plaintiff. The appellate court upheld the trial At the end of September of 2008 the Illinois Appellate court’s admission of the photographs mainly because they Court, Fifth District returned to the issue in Fronabarger. tended to show that the plaintiff was not rear-ended at any- The Fronabarger case involved a minor rear-end contact, where near the speed he suggested. The pictures by them- although the plaintiff treated for over a year afterwards with selves, without expert testimony, were relevant to prove a chiropractor. The appellate court held that the jury was ca- whether the injury was more or less probable. pable of assessing the relationship between the vehicular The Jackson v. Seib decision stands in stark contrast to damage and the claimed injury to the plaintiff. An expert was the decision in Baraniak. The Jackson court understood that not needed to establish relevancy. The photographs were pre- the credibility of the plaintiff’s account of the impact required sented to show minimal damage to the vehicles, relevant to admission of the photographs to illustrate the impact was not the nature and extent of the plaintiff’s injuries. as the plaintiff described. The photos were used to corrobo- The Fronabarger court also established that a doctor, in rate the defense and to impeach the plaintiff. Essentially, the this case an examining neurologist, could use the photographs photos were used to aid the jury’s truth seeking process. to conclude that the evidence of impact was too slight to have Photos that illustrate the subject matter of the testimony, caused any significant injury. The defense examiner was a or help the jury apply testimony more intelligently to the facts, trained physician, board certified in pain medicine and neu- should be admissible. Dep’t. of Pub. Works & Bldgs. v. Chi- rology. She had experience in treating patients injured in au- cago Title & Trust Co., 408 Ill. 41, 95 N.E.2d 903, 909 (1950). tomobile accidents. She reviewed the medical records and In contrast to Jackson, the Baraniak court refused to permit the photographs and performed an examination of the plain- any challenge to the plaintiff’s description of the impact with tiff. The foundation for her opinion testimony regarding the the photographic evidence. photos was sufficient. This holding provides important clari- Jackson wisely reaffirms that photographs illustrate, cor- fication and practical guidance. roborate and impeach, and in so doing, educate the jury. To insure admissibility of post-accident vehicle photos Humans may overdramatize or minimize events for obvious since DiCosola, defendants have turned to physicians to ana-

34 First Quarter 2009

lyze photos and relate the damage depicted (or lack of it) to with accidents. Jurors are well aware of driving situations the plaintiff’s claimed injury. In response plaintiffs often at- and ordinarily do not need expert assistance to reach their tack the physician as unqualified for the task. Fronabarger decisions regarding them. See, e.g., Payne v. Noles, 5 Ill. App. recognized that physicians, experts on the human body and 3d 433, 283 N.E.2d 329 (2nd Dist. 1972). trauma, are qualified to testify to photographic evidence and The Voykin subject is dissimilar to the issue of photo- the claimed injury resulting. But importantly, the Fronabarger graph admissibility, and the case does not support the decision recognized that vehicle photographs are generally DiCosola result. Unless there is some other compelling rea- relevant and admissible anyway, without expert testimony. son to deprive juries of photos, the DiCosola decision need- The Fronabarger case affirms that simply evaluating the lessly complicates the issue and merely creates an economic photo’s relevancy to the issues is the most useful approach stimulus package for experts. for determining admissibility, as would be the case with any evidence. It underscores that the DiCosola court’s effort to B. Photographs: Jury Speculation or Reasonable engraft upon photographic evidence an expert rule for ad- Inference? missibility is unsound. DiCosola suggested that post-accident vehicle photographs that show minimal damage may cause jurors to im- III. Deconstructing DiCosola properly speculate that minimal personal injuries to the plaintiff resulted.2 The DiCosola court confused speculation with If nothing else, the assertion that vehicle photos are ir- appropriate inference. Photos are accepted illustrative evi- relevant absent expert translation is novel. To justify its new dence, and traditionally jurors have been allowed to draw approach, the DiCosola case essentially asserted similarity reasonable inferences from them. See, e.g., Maple, 603 N.E.2d between prior injury evidence, like that in Voykin, and ve- at 515. Inference is allowed. Indeed, jurors are instructed to hicle photograph evidence. The analogy is inappropriate. apply common sense, weigh evidence and draw inferences from the evidence. Illinois Pattern Jury Instructions, Civil, A. Voykin is Inapplicable No. 1.01 (2006 Ed.). DiCosola’s use of the “speculation” la- In Voykin, the Illinois Supreme Court rejected the same bel is unconsidered and betrays a misunderstanding of the part of the body rule. Voykin, 733 N.E.2d at 1279. Up to that concept of relevancy. time, a defendant could challenge the plaintiff on injury cau- To be admissible, vehicle photographic evidence need sation without expert explanation, if the prior injury involved only be relevant. Relevant evidence is that which tends to the same bodily area involved in the lawsuit. Voykin analo- make the existence of a fact of consequence more probable gized the prior injury situation to that present in a medical or less probable than it would otherwise be. Hawn v. Fritcher, malpractice case where expert testimony is required. Jurors 301 Ill. App. 3d 248, 703 N.E.2d 109, 113 (4th Dist. 1998). are not skilled in medicine; and the relationship between a What is probable is viewed in the light of logic, experience, prior injury that occurred months or years previously, and and accepted assumptions as to human behavior. Marut v. the current physical condition of the plaintiff, is a complex Costello, 34 Ill. 2d 125, 214 N.E.2d 768, 769 (1965). The subject. Therefore, the court felt that an expert is needed to argument to bar vehicle photographs wrongly assumes that establish relevancy. Further, the court sought logical sym- because a plaintiff may still be injured despite minor vehicle metry between what was required of a plaintiff in proving contact, that photographic evidence must be irrelevant ab- injury causation in the first instance, and a defendant in dissent expert translation. However, complete certainty is not proving causation through prior injuries. The expert require- required for admissibility. ment should be the same for the defendant, according to the court’s reasoning. An item of evidence, being but a single link in the On the other hand, Justice Frossard’s DiCosola dissent chain of proof, need not prove conclusively the is sound. Photographs of vehicle damage do not constitute proposition for which it is offered. It need not ever medical conditions that are complex, needing expert expla- make that proposition appear more probable than not. nation. Photographs are typically explained by an involved Whether the entire body of one party’s evidence is witness and illustrate the testimony for the jury. Almost with- sufficient to go to the jury is one question. Whether out exception, the photos are useful for a better understand- a particular item of evidence is relevant to his case ing of the case. Vehicles and vehicular accidents are com- is quite another. It is enough if the item could rea- monplace. Jurors drive and own vehicles and are familiar (Continued on next page)

35 IDC Quarterly

Vehicle Photograph Admissibility (Continued) C. An Expert Rule for Ordinary Photograph sonably show that a fact is slightly more probable Admissibility is Illogical and Dangerous than it would appear without that evidence. Even If evidence is to be declared inadmissible absent an after the probative force of the evidence is spent, expert’s blessing, simply because other inferences are pos- the proposition for which it is offered still can seem sible, vast amounts of evidence could soon be barred. For quite improbable. Thus, the common objection that example, the fact that a plaintiff does not complain of pain the inference for which the fact is offered does not until three days after an accident does not necessarily mean necessarily follow is untenable. It poses a standard the plaintiff is not injured. That the plaintiff struck nothing of conclusiveness that very few single items of cir- inside of his vehicle during the accident does not necessarily cumstantial evidence ever could meet. A brick is not mean the plaintiff was not injured. Should such admissions a wall. be barred? The list could go on, but each item is relevant and traditionally admissible without an expert to explain it. These Hawn v. Fritcher, 703 N.E.2d at 112 (4th Dist. 1998) (quot- are links in the chain of proof and do not conjure improper ing J. Strong, McCormick on Evidence, § 185 at 776, 777 speculation. Using DiCosola’s theory, much of this useful (4th Ed. 1992)). circumstantial evidence could be said to induce injury “speculation,” rendering the evidence inadmissible. Further, a rule of vehicle photo inadmissibility absent expert testimony is demonstrably incongruent. Wigmore said a photo was witness testimony in illustrated form; a pictorial If evidence is to be declared communication by a qualified witness who uses this method of communication instead of or in addition to some other inadmissible absent an expert’s method. No. 3 Wigmore on Evidence, § 793 (3d Ed. 1940). Witnesses have always been allowed to testify to the nature blessing, simply because other of the contact, the speed of the vehicles and the surrounding inferences are possible, vast amounts circumstances. Phillips v. Lawrence, 87 Ill. App. 2d 60, 230 N.E. 2d 505 (5th Dist. 1967). As it is accepted that a party of evidence could soon be barred. may so testify, it is absurd to bar photographs that illustrate the very point. Unfortunately, some trial courts have extended the DiCosola theory such that party descriptions reflecting low speed contacts are made inadmissible without the expert gloss. Common logic and experience tell us that one is more After all, if the photo illustrating minor contact is irrelevant, likely to be injured accidentally stepping off a mountain cliff why not the defendant’s description of the event? These re- than from stepping off a curb. (Radically different physical sults are disturbing. To gag a defendant or plaintiff in such a injuries also tend to result.) Common sense tells us that the manner threatens fundamental rights. DiCosola did not sug- car traveling at a high rate of speed is more likely to harm an gest that witnesses should be barred from testifying to these occupant when it strikes than the car travelling slowly. Phillips useful details, but it supported a trial court that did so. Such v. Lawrence, 87 Ill. App. 2d 60, 230 N.E.2d 505, 507 (5th arguments that bar relevant photos easily expand under their Dist. 1967). misguided rationale. Useful verbal depictions of the accident Post-accident injury tends to correspond with the force and vehicles are soon also swept away by this ill-conceived of the contact. Jurors can and do infer otherwise on contrary notion. evidence and persuasive argument. However, that a common sense inference brooks other possibilities should not render D. Other Jurisdictions the evidence inadmissible. Experts may complement the The recent Fronabarger decision is consistent with a analysis here, but should not define relevancy for basic ve- common sense relevancy analysis applied by virtually all hicle photo evidence. courts outside Illinois addressing the same issue. Based on the author’s research, the Baraniak case appears now to be the only one in the United States suggesting post- accident vehicle photographs are irrelevant and inadmissible without

36 First Quarter 2009

expert testimony. Other cases have recognized that although WL 31195408, at *3 (Ohio App. 8th Dist. Oct. 3, 2002) (“gen- there may be some accidents in which minor contacts lead to erally photographs showing the extent of damage to vehicles serious injury, and vice versa, this does not mean evidence are relevant to proving the extent of injury to the person in- concerning the impact is irrelevant to the extent of the inju- side the vehicle”); Allstate Ins. Co. v. Kidwell, 746 So. 2d ries. 1129, 1131 (Fla. App. 4th Dist. 1999) (abuse of discretion to bar photos, because force of impact evidence could have cor- roborated defendant’s claim of minimal impact and discred- ited plaintiff’s causation claim). The Fronabarger decision A vital element of our jurisprudence is representative of the consensus view that photos are generally relevant and expert testimony is not required for the is a commitment to the basic admissibility of vehicle photographs. presupposition that an informed Conclusion jury is the best and most appropriate A rule that post-accident vehicle photographs are irrel- fact finder. evant and automatically inadmissible without expert testimony defies common sense, calls into question the basic in- telligence of jurors, and adds to the costs already associated with jury trial. The idea that a person cannot use vehicle photos in a vehicular negligence case without first finding ex- Relevancy involves probabilities; certainty is not ordi- perts to study scratches and dents in license plates, bumpers narily required. See, e.g., Mason v. Lynch, 388 Md. 37, 878 and fenders is unsound. A vital element of our jurisprudence A.2d 588 (Md. Ct. App. 2005) (citing approvingly Phillips v. is a commitment to the basic presupposition that an informed Lawrence, 230 N.E.2d at 507); Corriette v. Morales, No. jury is the best and most appropriate fact finder. 2007-075, 2008 WL 2998725, at *5 (Sup. Ct. V.I. July 14, Requiring that common sense evidence be filtered 2008) (abuse of discretion to bar vehicle photographs dem- through the prism of an expert, dishonors juries. The right to onstrating significant damage despite defendant’s argument jury trial must be coupled with a commitment to permit ju- that they were irrelevant because no expert testimony linked rors to see and hear basic common sense evidence, to see the the damage in the photographs to the plaintiff’s personal in- instrumentalities and to consider other evidence from which juries); Brenman v. Demello, 191 N.J. 18, 921 A.2d 1110 they can reach intelligent and appropriate conclusions. The (2007) (expert testimony is not required as a condition to the Fronabarger decision promotes this traditional view. Post- admission of photographs of vehicle damage when the cause accident vehicle photos may involve a subject that science of plaintiff’s injuries is in issue, because in most cases there may complement for the benefit of the jury, but is not one is a relationship between the force of impact and the result- where lack of scientific explanation should foreclose the evi- ant injury; and the extent of that relationship remains in the dence. province of the fact finder); Bishop v. Dale Jessup, Inc., No. 4:05CV397, 2006 WL 571979, at *2 (E.D. Mo. Mar. 8, 2006) (Endnotes) (“photographs should not be excluded under Federal Rule of 1 Photos are usually relevant for a number of issues in an auto acci- Evidence 403 ‘because evidence of property damage is pro- dent case, including negligence, but I will discuss the evidence here bative of the extent of personal injury, and it is not even out- primarily for its tendency to make injury more probable or not. Also, weighed let alone substantially outweighed, by any danger I discuss the issues from a defense perspective generally, although the points made apply equally to situations when defendants might of unfair prejudice.’”); Marron v. Stromstad, 123 P.3d 992, seek suppression of photos depicting significant damage. 1009 (Sup. Ct. Alaska 2005) (“evidence showing plaintiff’s 2 vehicle was undamaged can be probative of the force of the DiCosola, 794 N.E.2d at 881. The speculation label was borrowed from a Delaware case, Davis v. Maute, 770 A.2d 36 (Del. Sup. Ct. accident, and the likelihood that it caused harm”); O’Brien v. 2001). Interestingly, Delaware later backtracked from the “automati- Barretta, 843 N.Y.S.2d 399, 44 A.D.3d 731, 732 (Sup. Ct. cally inadmissible without an expert” approach to vehicle photos in App. Div. N.Y. 2007) (photographs show the force of impact Eskin v.Carden, 842 A.2d 1222, 1233 (Del. Sup. Ct. 2004). The Davis v. Maute approach is also significant for being consistently declined and are helpful in determining the nature and extent of by virtually every court that has considered it, save DiCosola. See plaintiff’s injuries); Maybaum v. Rakita, No. 80613, 2002 infra, subpart D.

37 IDC Quarterly

worked the same shift as, and was trained by, fellow jailor Steven Duty, with whom she had a contentious relationship. Employment Law Argyropoulos complained to her supervisors about his job performance and offensive remarks. In December 2002, as a result of the problems between the two, Lane placed them on separate shifts. They, however, continued to cross paths dur- By: Geoffrey M. Waguespack ing shift changes. Cremer, Shaughnessy, Spina, Jansen Trouble began in March 2003, during one otherwise rou- & Siegert LLC tine shift change, when Duty interrupted Argyropoulos as Chicago she provided information concerning prisoners, and asked, “What’s that on your tit?” As Argyropoulos looked down, Duty reached out and pulled her jacket back to reveal a wet spot on the area of her shirt covering her right breast. Embar- Employee Who Surreptitiously Recorded rassed and angry, Argyropoulos punched Duty in the arm and Meeting Failed to Establish Prima Facie said that she spilled something on herself. Duty laughed and Case of Retaliation under Title VII made a comment that she was “not getting [her] freak on.” Argyropoulos did not report the incident until she re- In Argyropoulos v. City of Alton, 539 F.3d 724 (7th Cir. turned to work a few days later and told Sergeant Carla Pruitt. 2008), an employee of the City of Alton (the City) complained The Chief of Police, Chris Sullivan, learned of the incident, that a co-worker sexually harassed her. During the investi- and the next day Lane and several other police officials sum- gation into her allegations, the City learned that the employee moned Argyropoulos to a meeting. Argyropoulos prepared a surreptitiously tape-recorded a meeting with two of her su- written memorandum, documenting the wet shirt incident and periors. That information triggered her arrest on a felony another incident from November 2002, when Duty called her eavesdropping charge, and she was terminated. The employee a “fucking moron” and suggested that she would be better contended that she was arrested and fired solely because she able to concentrate if she would “find somebody to get [her] complained of sexual harassment. She then sued the City, freak on with.” alleging, among other things, retaliation in violation of Title Chief Sullivan promptly addressed the situation. First, VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. The he provided an escort for Duty each time that Duty relieved district court granted summary judgment for the City, and Argyropoulos at a shift change. Second, he began an investi- the appellate court affirmed, taking the facts in the light most gation, conducting interviews of several people, including favorable to Argyropoulos, despite widely divergent varia- Duty, who denied the allegations and stated that he did not tions of the facts. like Argyropoulos because of the burden of extra work im- Starting July 1, 2002, Argyropoulos worked as a jailor posed on him by her slowness and mistakes. Third, he con- for the City’s police department. She was supervised by sev- tacted David Miles, the City’s personnel director, who in turn eral sergeants, with at least one on duty during her shift at notified the Mayor. any given time. Those sergeants reported to Lieutenant Terry Lane, whose responsibility was the general oversight of the jail operations. Argyropoulos’s first formal performance About the Author evaluation was in November 2002, and was mixed. She was commended for her punctuality and positive attitude and ex- Geoffrey M. Waguespack is an associate with the law firm ceeded standards in observance of work hours and accepting of Cremer, Shaughnessy, Spina, Jansen & Siegert LLC, where he concentrates his practice in employment law and directions; but she needed some improvement in numerous general tort litigation. Prior to joining that firm, Mr. areas, including grooming and dress, employee contacts, plan- Waguespack served as the judicial law clerk to the Honor- able Morton Denlow, Presiding Magistrate Judge for the ning and organization, job skill level, volume/acceptable United States District Court, Northern District of Illinois, work, meeting deadlines, and effectiveness under stress. She and as a research staff attorney for the Appellate Court of Illinois, Second District. He earned his B.A. from the Col- was deficient in organizing her duties and working at an ac- lege of William & Mary in Virginia and his J.D. from Loyola University Chi- ceptable pace during hectic periods. She, however, was not cago School of Law, where he was a member of a moot court team and the deemed unsatisfactory in any category. Executive Editor of Publications for the Loyola University Chicago Law Jour- nal. During her first few months on the job, Argyropoulos

38 First Quarter 2009

Despite the City’s efforts, Argyropoulos’s troubles with That same day, Julie Anderson, a counselor with the City, Duty continued, albeit outside the office. For example, a male informed another jailor, Jennifer Penney, that Argyropoulos in a blue pickup truck, whom she believed was Duty, drove had secretly recorded the meeting. Penney, alarmed by this past her and shouted a lewd comment at her. apparent criminal act, told her supervisor, Sergeant Tim Botterbush, who took Anderson to meet Detective Jason Simmons. The next day, Simmons obtained a search warrant for Argyropoulos’s residence. Accompanied by Chief Sullivan and a Lieutenant Taul, The meeting became heated, with Simmons executed the warrant at Argyropoulos’s residence, while she was home. Argyropoulos initially denied possess- Lane slamming his hands on the table, ing tape recorders or audiotapes in her residence. When the officers began searching the premises, however, she surren- directing her to sit down, and telling dered a tape recorder to the officers, apologized for lying, her to “shut the goddam door.” but denied recording any workplace conversations. Unsatis- fied, the officers continued searching, and discovered a sec- Because she felt physically threatened ond tape recorder containing an audiotape. When Argyropoulos learned that the warrant authorized a search and terrified, Argyropoulos secretly of her car, she confessed that she had recorded the meeting activated a tape recorder that was with Lane and Adams. After retrieving another audiotape from her car, the officers arrested Argyropoulos. The state’s attor- concealed in her clothing. ney charged her with felony eavesdropping, in violation of 720 ILCS 5/14-2. Chief Sullivan fired Argyropoulos later that day. An April 20, 2003 letter enumerated three reasons for her dismissal: (1) poor job performance; (2) allegedly criminal conduct Shortly afterwards, Argyropoulos’s job performance was while on duty; and (3) untruthful statements given to Chief criticized considerably. On April 5, a lieutenant reprimanded Sullivan and other police department representatives during her for mistakenly delivering other prisoners’ clearly marked the execution of the warrant. property to a juvenile prisoner while releasing him from cus- After her termination, Argyropoulos filed a charge with tody. On April 11, a Lieutenant Adams gave Lane a list of the Equal Employment Opportunity Commission. She re- prisoners that Argyropoulos had failed to finish processing ceived a right to sue letter, and timely filed a complaint in during her shift. On April 19, Adams gave Lane a memoran- federal court, claiming sexual harassment and retaliation, dum generally excoriating Argyropoulos’s job performance, among other claims. The district court granted summary judg- noting her deficiencies in fulfilling basic responsibilities and ment in favor of the City. Argyropoulos appealed, focusing expressing doubt about the possibility of improvement. on her retaliation claim. On April 28, Lane and Adams summoned Argyropoulos Employer retaliation is forbidden where an employee to a meeting, at which they wished to discuss recent com- “has opposed any practice made an unlawful practice” by plaints about her job performance. The meeting became Title VII. 42 U.S.C. §2000e-3(a). A plaintiff can prove re- heated, with Lane slamming his hands on the table, directing taliation under either the direct or indirect method. Metzger her to sit down, and telling her to “shut the goddam door.” v. Ill. State Police, 519 F.3d 677, 681 (7th Cir. 2008). Under Because she felt physically threatened and terrified, the direct method, the plaintiff must present either direct or Argyropoulos secretly activated a tape recorder that was con- circumstantial evidence showing that (1) she engaged in statu- cealed in her clothing. The meeting continued, with Lane torily protected activity; (2) she suffered a materially adverse threatening to fire her, when she asked for details concern- action; and (3) a causal connection exists between the two. ing certain mistakes Lane said she had made. The meeting Id. Under the indirect method, the first two elements are the ended, when Argyropoulos signed a form stating that: (1) same as under the direct method, but a plaintiff must estab- Lane and Adams had discussed Argyropoulos’s discipline lish a prima facie case by also showing that: (3) she met her issues and performance inadequacies; and (2) she had been employer’s legitimate expectations; and (4) she was treated given the opportunity to seek clarification regarding any topic. (Continued on next page)

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Employment Law (Continued) City’s proffered reason for her arrest and termination was less favorably than a similarly situated employee who did pretext for retaliation. The City explained that Argyropoulos not engage in statutorily protected activity. Nichols v. S. Ill. was arrested and terminated because of her behavior in the Univ.-Edwardsville, 510 F.3d 772, 785 (7th Cir. 2007). eavesdropping incident. The court concluded that In Argyropoulos’s case, the court found that the first two Argyropoulos had failed to cast doubt on the City’s explana- elements were not in dispute, because her sexual harassment tion. complaint constituted a statutorily protected activity, as did the eavesdropping arrest, and her termination was a materially adverse action. Under the direct method, the court rejected Argyropoulos’s contention that a causal connection The court concluded that between the two existed. Argyropoulos argued that, because her aim was to obtain evidence of discrimination, she en- Argyropoulos’s ability to raise a gaged in a statutorily protected activity when she secretly recorded the meeting with Lane and Adams. Thus, she ar- meritorious defense to the gued, the City’s arrest and termination of her, due to the re- eavesdropping charge was not cording, established the requisite causal connection. The court found that Argyropoulos’s argument rested upon a transpar- tantamount to showing bad faith on ently overbroad view of the scope of the protection of Title VII. Title VII does not license the aggrieved employee to the City’s part. Therefore, the appellate engage in dubious self-help tactics or workplace espionage in order to gather evidence of discrimination. Thus, the court court held that the district court concluded, the City’s admission that Argyropoulos’s surrep- properly granted summary judgment titious recording was a significant factor in her dismissal was not direct evidence of retaliation. Looking for circumstantial for the City. evidence, the court found none, stating that any inference of a causal link between Argyropoulos’s discrimination complaint and her arrest and termination would be based on speculation or conjecture. Turning to the indirect method, the court found that First, her arrest and dismissal occurred almost seven Argyropoulos did not present evidence either of satisfactory weeks after her discrimination complaint, but only two days job performance or that she was treated less favorably than a after the City learned of the secret recording. Second, she similarly situated employee. With respect to her job perfor- was arrested and fired only after the police recovered evi- mance, the court noted that the deficiencies cited in the No- dence of criminal activity from her house and she had admit- vember 2002 review, which pre-dated her April 2003 sexual ted that she lied to police. Moreover, she presented no evi- harassment complaint, undermined any reasonable inference dence to suggest bad faith on the City’s part. Third, the court that the latter reports were disingenuous. The court also noted rejected Argyropoulos’s argument that her conduct was, in that Argyropoulos did not dispute that she had difficulty fact, legal under 720 ILCS 5/14-3(i). That section exempts timely booking multiple prisoners. Therefore, the court con- from criminality the recording of a conversation without the cluded, she did not establish that she satisfactorily performed parties’ consent, so long as the recording is made by a person her job. who is a party to the conversation and reasonably suspects Additionally, Argyropoulos failed to identify a similarly that another party to the conversation is committing, has com- situated employee who was treated more favorably than she. mitted, or is about to commit a criminal offense against the The court concluded that she did not identify an employee person, and there is reason to believe that evidence of the who engaged in misconduct similar to eavesdropping but who criminal offense might be obtained by the recording. The court nonetheless was treated more favorably. Thus, Argyropoulos concluded that Argyropoulos’s ability to raise a meritorious did not establish her prima facie case under the indirect defense to the eavesdropping charge was not tantamount to method. showing bad faith on the City’s part. Therefore, the appellate Finally, the court continued, even if Argyropoulos had court held that the district court properly granted summary established her prima facie case, she could not show that the judgment for the City.

40 First Quarter 2009

As a Matter of First Impression, the Tenth Circuit Holds that Driving Is Not Itself a Major Life Activity under the Insurance Law Americans with Disabilities Act

In Kellogg v. Energy Safety Services, Inc., (10th Cir. 2008), an employee who was fired after she was diagnosed By: Ali Ryan Amin with epilepsy sued her former employer, claiming discrimi- Hinshaw & Culbertson, LLP nation in violation of the Americans with Disabilities Act Chicago (ADA), 42 U.S.C. § 12112 et seq. At trial, a jury found in favor of the plaintiff employee. The defendant employer appealed, arguing in part that the jury improperly found that the plaintiff employee was a qualified individual who was The Accidental Occurrence: substantially limited in a major life activity. The defendant reasoned that the court erred in instructing the jury that driv- Recent Court Interpretations ing is a major life activity. The appellate court agreed and of “Occurrence” and reversed and remanded the plaintiff employee’s ADA claim for new trial. “Property Damage” in The appellate court noted that the issue of whether driv- Construction Defect Cases ing constitutes a “major life activity” under the ADA was a question of first impression in the circuit. The court noted Decided Under Illinois Law that the only two published appellate court opinions on the question concluded that driving is not a “major life activity.” Colwell v. Suffolk County Police Dep’t., 158 F.3d 635, 643 Two recent Illinois cases have brought into sharp focus (2d Cir. 1998); Chenoweth v. Hillsborough County, 250 F.3d a new development with respect to the issue of the interpre- 1328, 1329-30 (11th Cir. 2001). tation of the terms “occurrence” and “property damage” un- The court recognized that it cannot be disputed that, to der commercial general liability (CGL) policies in construc- many, even most, adults, driving is an extremely important tion defect claims. Specifically, the Second District Illinois daily activity, and caring for oneself or going to work would Appellate Court’s recent decision in Stoneridge Development be very difficult without the ability to drive. Driving, how- Co., Inc. v. Essex Ins. Co., 382 Ill. App. 3d 731, 888 N.E.2d ever, is a means to an end, whereas the major life activities 633 (2nd Dist. 2008), and the Seventh Circuit Court of Ap- identified in the regulations (29 C.F.R. § 1630.2(i)) are all (Continued on next page) more profoundly important in and of themselves than driving is. Moreover, unlike driving, the importance of those activities is not dependent upon where one lives, because they are valued as much by the urban resident as the isolated rural About the Author resident. The court stated that, to conclude that driving is a major Ali Amin is an Associate with Hinshaw & Culbertson, LLP life activity because of its importance to the performance of and focuses his litigation practice in insurance coverage matters, including resolution of commercial and profes- other major life activities would “shortcircuit” the analysis sional liability claims, targeted tenders and additional in- that determines whether a major life activity has been sub- sured matters, as well as excess of limits liability issues. Mr. Amin joined Hinshaw & Culbertson LLP in March stantially limited. A plaintiff should not be allowed to bypass 2007. Previously he was an associate at Tribler Orpett & the requirement of proving substantial limitations in major Meyer, P.C., in Chicago. From 2002 to 2005, Mr. Amin was an associate of Hanson Peters Nye in Barrington. While still in law school, life activities by providing only evidence that she cannot Mr. Amin was a summer associate at Sullivan, Papain, Block, McGrath & drive. Cannavo, P.C., in New York. In addition, in 1998 he interned with the Public Interest Law Initiative Grant at Chicago Volunteer Legal Services Founda- tion. Mr. Amin also worked, from 1995 to 1997, as a legal assistant at Sidley & Austin in their Products Liability, Malpractice & Insurance Group. Mr. Amin is the 1996 and 1997 recipient of the CVLS Distinguished Service Award for his work at the Uptown Legal Clinic.

41 IDC Quarterly

Insurance Law (Continued) of defective workmanship (specifically, a faulty soil com- peals’ decision in Lyerla v. AMCO Ins. Co., 536 F.3d 684 parison). (7th Cir. 2008), both signify a shift in Illinois insurance law Additionally, the court in Stoneridge held that the cracks with respect to the scope of coverage provided by CGL poli- in the home did not constitute “property damage” under the cies. Both the Stoneridge and Lyerla cases diminish the avail- CGL policy. “Property damage” was defined as “physical ability of coverage to insureds in construction cases under injury to tangible property, including all resulting loss of use CGL policies. of that property.” According to the court, “property damage” In Stoneridge, an insured home builder brought an ac- also included property that was “altered in appearance, shape, tion against its CGL insurer for declaratory judgment. The color or in other material dimension.” The court noted that complaint alleged that the insurer owed a duty to defend and Illinois law has consistently held that under the same defini- indemnify the builder against liability for cracks in the foun- tion of property damage, breach of contract claims are not dation of a residence which was built by Stoneridge. The covered because they are not considered to be fortuitous trial court initially found that the insurer had a conflict of events. Furthermore, where the underlying complaint only interest and was, therefore, estopped from denying cover- sought repair and replacement of the damaged product, such age. After overturning the trial court’s conflict of interest loss was economic in nature that did not constitute “property ruling, the appellate court found that the cracks in the home damage” under the terms of a CGL policy. Consequently, the and its foundation were not caused by an “occurrence” within court held that the damage to the residence in Stoneridge was the meaning of a builder’s liability policy. Specifically, the not “property damage” because the homeowners in the un- Court held that coverage would only be available under a derlying complaint only sought costs for the repair or replace- CGL policy if there was an “occurrence.” ment or the diminished value of the home, which the court deemed uncovered economic losses. In Lyerla, the Seventh Circuit decided that a complaint alleging defective workmanship and breach of contract did not allege “property damage” caused by an “occurrence,” as The court noted that Illinois law has defined by standard CGL policy language. In Lyerla, AMCO Insurance Company issued a CGL policy to Lyerla. Lyerla consistently held that under the same was subsequently sued for breach of contract in a dispute arising out of a construction contract with the owners of a definition of property damage, breach residential dwelling that Lyerla was hired to build. Specifi- of contract claims are not covered cally, the underlying lawsuit alleged that Lyerla had failed to construct the building pursuant to the agreed-upon plans and because they are not considered to be specifications; had failed to repair the list of unsatisfactory items upon completion (or punch list items) within the fortuitous events. timeframe provided by the contract; had failed to build the home in a workmanlike manner; had failed to correct defects in seven days as required by the contract and had failed to pay liquidated damages. The owners sought to recover costs In Stoneridge, the policy defined “occurrence” as “an incurred in completing the work Lyerla was required to per- accident, including continuous or repeated exposure to sub- form under the contract, as well as other ancillary costs and stantially the same general harmful conditions.” The court fees. noted that although the term “accident” was not defined by Lyerla tendered the lawsuit to AMCO, but AMCO re- the policy, even if the person involved in the act did not ex- fused to defend. After Lyerla settled the underlying lawsuit, pect or intend the result, if the result is the natural and ordi- he brought suit against AMCO for breach of contract and for nary consequence of the act, it is not an accident within the violating the Illinois Insurance Code. Finding that the under- meaning of a CGL policy. Relying primarily on the decision lying complaint did not allege an “occurrence” or “property in State Farm Fire & Cas. Co. v. Tillerson, 334 Ill. App. 3d damage” as defined by Lyerla’s CGL policy, the federal dis- 404, 777 N.E.2d 986 (5th Dist. 2002), the court found that trict court granted summary judgment in favor of AMCO, the cracks in the foundation were, in fact, not caused by an and Lyerla appealed. “accident,” but were the natural and ordinary consequence The policy in question provided coverage for “bodily

42 First Quarter 2009

injury” or “property damage” caused by an “occurrence.” tempted to crystallize an interpretation of “occurrence” that “Occurrence” was defined in the policy as “an accident, in- includes a limitation on the term “accident” in the policy cluding continuous or repeated exposure to substantially the definition to encompass only acts which neither result in the same general harmful conditions.” Furthermore, “property “rational and probable consequence” or the “natural and or- damage” was defined as: dinary consequence” of the act. Furthermore, these courts have made specific determinations that, with respect to con- a. Physical injury to tangible property, including struction cases which allege defective workmanship as a ba- all resulting loss of use of that property. All such sis for recovery, the allegations do not qualify as an “acci- loss of use shall be deemed to occur at the time of dent,” because the courts have deemed the resulting damage the physical injury that caused it; or as having been part of the “natural and ordinary” consequence of the act. Therefore, these courts have found that, unless the b. Loss of use of tangible property that is not physi- complaint alleges a result which is not a natural and ordinary cally injured. All such loss of use shall be deemed to consequence of the negligent act, these construction acci- occur at the time of the “occurrence” that caused it. dent allegations are not covered under CGL policies. The second significant point is that both the Stoneridge In affirming the district court’s decision, the Seventh and Lyerla courts have validated the principle that allega- Circuit held that none of the allegations in the underlying tions of breach of contract and economic loss do not consti- complaint constituted “property damage” caused by an “oc- tute “property damage” under the definition provided in most currence” as required by the CGL policy. As such, the court standard CGL policies. Moreover, according to the Seventh held that a duty to defend was never triggered under the policy. Circuit, the definition of “property damage” has been further The court reasoned that a strong line of Illinois authority limited to exclude liquidated damages and storage costs. clearly holds that damage to a construction project resulting Given the combined courts’ interpretations of “occur- from construction defects is not an “accident” or “occurrence” rence” and “property damage,” coverage available to an in- because “it represents the natural and ordinary consequence sured with respect to construction cases has been greatly di- of faulty construction.” minished. Nonetheless, these interpretations fall more closely The court also distinguished the Illinois cases holding in line with the purpose behind CGL coverage. As the the position that negligently performed work or defective Stoneridge court noted: work can give rise to an “occurrence.” Specifically, the court noted that in Country Mutual Ins. Co. v. Carr, 366 Ill. App. Comprehensive general liability policies …are in- 3d 758, 852 N.E.2d 907 (4th Dist. 2006), the facts differed tended to protect the insured from liability for in- from the case at hand because in Carr the underlying com- jury or damage to the persons or property of others; plaint alleged that negligence of the contractor (or his sub- they are not intended to pay the costs associated with contractor) resulted in property damage to the homeowner’s repairing or replacing the insured’s defective work basement walls–alleged physical injury to tangible property and products, which are purely economic losses. (the basement walls), which was not something built by the Finding coverage for the costs of replacing or re- contractor. However, the court in Lyerla found that the un- pairing defective work would transform the policy derlying complaint only alleged that the work called for un- into something akin to a performance bond.” Trav- der the contract was performed improperly or incompletely. elers Insurance Co. v. Eljer Manufacturing, Inc., 197 The distinction between the Carr case and the Lyerla Ill. 2d 278, 314, 757 N.E.2d 481 (2001), quoting case is that the complaint in Lyerla alleged faulty workman- Qualls v. Country Mutual Insurance Co., 123 Ill. ship, but the complaint in Carr alleged faulty workmanship App. 3d 831, 833-34, 462 N.E.2d 1288 (1984). that damaged property. Additionally, the court in Lyerla held that the allegations seeking recovery of liquidated dam- Stoneridge, 382 Ill. App. 3d 731, 752. ages and storage fees did not constitute costs incurred by the owners for loss of use of tangible property, as required for The Stoneridge and Lyerla courts reinforce insurers’ ar- coverage under the definition of “property damage.” guments that Illinois law does not consider allegations of Two significant points should be gleaned from the defective workmanship or breach of contract to be a basis Stoneridge and Lyerla decisions. The first point is that Illi- for recovery under a commercial liability policy. nois courts (and courts interpreting Illinois law) have at-

43 IDC Quarterly

Feature Article In 1993 and 1996 the Illinois Legislature amended the ICFA to include an offer of judgment provision. Rather than * By: Jared K. Clapper and Alana Zusis making the provision applicable to all defendants, however, SmithAmundsen LLC the legislature limited its applicability to vehicle dealers. Chicago Consequently, the Illinois Supreme Court found that the amendments constituted unconstitutional special legislation in Allen v. Woodfield Chevrolet, Inc., 208 Ill. 2d 12, 34, 802 N.E.2d 752 (2003). Without an offer of judgment provision, there is a potential for abuse by a plaintiff’s attorney, who may refuse rea- Racking Up Attorney Fees sonable settlement offers in order to increase the amount of under the recoverable attorney fees under the ICFA. In these authors’ opinions, the problem created by allowing attorney fees to Illinois Consumer Fraud Act: be awarded under the ICFA while not having a counter-bal- Simple Solutions to ancing offer of judgment provision was the result of the legislature’s failure to see the big picture when drafting the Prevent Attorney Abuse offer of judgment amendments to the ICFA, followed by a failure to react to the decision in the Woodfield Chevrolet case. This problem can be solved quite simply. If the refer- Background of the Problem: ences to “vehicle dealers” were changed to “any defendant,” Awarding Attorney Fees for “Success” When That the amendments to the ICFA would no longer constitute spe- “Success” is Less Than What Was Offered for Settlement cial legislation and would still be consistent with the legislative intent behind the ICFA. Forty-seven states have offer of judgment mechanisms of some type enacted into their procedural codes or rules, many of which are patterned after Federal Rule of Civil Pro- cedure 68. The purpose of offer of judgment provisions is widely accepted as promoting settlement by penalizing a party that rejects a settlement offer and then fares worse at trial than if the rejected offer had been accepted. Delta Airlines About the Authors Inc. v. August, 101 S. Ct. 1146, 1152-55 (1981); See Fed. R. Civ. P 68. Illinois is one of the three states without such a statute. Jared K. Clapper is an associate at SmithAmundsen’s Chi- Illinois also allows for the award of attorney fees to the cago office and is a member of the firm’s Insurance Ser- vices Practice Group. Since joining SmithAmundsen, Jared “prevailing party” under the Illinois Consumer Fraud and has represented insurers in many aspects of their businesses. Deceptive Business Practices Act (ICFA), 815 ILCS 505/10a His practice involves insurance coverage matters in the areas of professional malpractice, business liability, construc- (2008), in order to allow plaintiff consumers with small claims tion, automobile liability, uninsured/underinsured motor- to bring their cases with the assistance of an attorney. ists, homeowners, environmental, and toxic tort as well as general commer- Krautsack v. Anderson, 223 Ill. 2d 541, 557, 861 N.E.2d 633 cial litigation. (2006). Because Illinois does not have an offer of judgment rule and because the ICFA allows successful plaintiffs to recover their attorney fees, a plaintiff can bring a suit for a Alana Zusis is currently in her third year of law school at small amount of actual damages, reject settlement offers, and the University of Illinois College of Law. She is a Moot Court Editor and will be representing the College of Law incur a substantial amount of attorney fees by taking the case in the upcoming external competition. Alana will be join- to trial. If the plaintiff prevails on the merits, the plaintiff’s ing SmithAmundsen as an associate in the fall of 2009. attorney can recover his or her fees accumulated in bringing the case to trial. These fees may have been incurred unneces- * The authors acknowledge the assistance of Richard T. Valentino, sarily, if the defendant was willing to fairly compensate the SmithAmundsen in the preparation of this article. plaintiff through settlement.

44 First Quarter 2009

Analysis of the Rejected Terms of the Offer of Judgment tion under this Section, a party who is seeking relief Provision in the Illinois Consumer Fraud Act shall serve a written notice of the nature of the alleged violation and demand for relief upon the pro- The unconstitutional provisions of the ICFA provides in spective party, who is a new vehicle dealer or used relevant part as follows: vehicle dealer . . . . Any person receiving such a demand for relief may, within 30 days of service of the (a) Any person who suffers actual damage as a demand for relief, submit a written offer of settle- result of a violation of this Act committed by any ment . . . . If the offer of settlement is rejected in other person may bring an action against such per- writing by the party who is seeking relief, then, in son. The court, in its discretion may award actual any subsequent action, the court shall deny any economic damages or any other relief which the court award of attorney’s fees and costs requested by the deems proper; provided, however, that no award of party seeking relief . . . incurred after the rejection punitive damages may be assessed under this Sec- of the written offer of settlement, if the judgment is tion against a party defendant who is a new vehicle less than the amount contained within the offer of dealer or used vehicle dealer . . . unless the conduct settlement . . . . engaged in was willful or intentional and done with evil motive or reckless indifference to the rights of 815 ILCS 505/10a. others. Proof of a public injury, a pattern, or an effect on consumers and the public interest generally The ICFA was amended first to add an offer of judgment shall be required in order to state a cause of action provision by Public Act 87-1140, effective January 1, 1993. under this Section against a party defendant who is P.A. 87-1140, 87th Cong., (Ill. 1992). Senator Denny Jacobs a new vehicle dealer or used vehicle dealer . . . . said the amendment was intended to address the following problem: “A person who has been harmed by a car dealer *** goes to the dealer and states his qualm; the dealer is gener- (f) At any time more than 30 days before the ally interested in settling the matter, but plaintiffs’ attorneys commencement of trial, a party, who is a new ve- convince their clients to reject most settlement offers.” 87th hicle dealer or used vehicle dealer . . . defending a Ill. Gen. Assem., Senate Proceedings, June 19, 1992, at 19- claim under this Act, may serve upon the party seek- 20. According to Senator Stanley Weaver, the amendment ing relief . . . an offer to allow judgment to be taken was modeled after Rule 68 of the Federal Rules of Civil Pro- against the defending party . . . . When a party seek- cedure, “a rule which is designed to encourage reasonable ing relief . . . does not accept an offer . . . and . . . settlements of disputes by penalizing parties that reject rea- fails to obtain a judgment in an amount more than sonable settlement offers”; and the offer of judgment mecha- the total offer of settlement . . . that party shall for- nism is an effort to resolve disputes “in an equitable man- feit and the court may not award any compensation ner,” noting that it is “working very well in the several states.” for attorney’s fees and costs incurred after the date 87th Ill. Gen. Assem., Senate Proceedings, June 19, 1992, at of the offer. 16, 20. (g) At any time more than 30 days before the Sponsored by Representative Al Ronan and Senator commencement of trial, a party who is seeking re- James Philip, Public Act 87-1140 added Section 10a(f) to lief . . . from a new vehicle dealer or used vehicle the ICFA to allow defendant vehicle dealers involved in a dealer . . . may serve an offer to allow judgment to consumer fraud claim to make an offer of judgment prior to be taken against the dealer . . . . When a dealer . . . trial. 815 ILCS 505/10a(f). The idea was that if a plaintiff does not accept an offer . . . and if the party seeking rejected the offer and recovered less than the amount offered, relief against a dealer . . . obtains a judgment in an the plaintiff would not be able to recover attorney fees or amount equal to or in excess of the offer amount, costs incurred after the date of the offer. 87th Ill. Gen. Assem., the party seeking relief shall be paid interest on the Senate Proceedings, June 19, 1992, at 18. offer amount at the rate as provided in . . . 735 ILCS Section 10a(f) was complimented by Section 10a(g), 5/2-1303 from the date of the offer until the judg- which allowed consumer fraud plaintiffs to make an offer of ment is paid. judgment before trial in a suit against a vehicle dealer. 815 (h) At least 30 days prior to the filing of an ac- (Continued on next page)

45 IDC Quarterly

Racking Up Attorney Fees (Continued) settlement before the case went to trial, “almost like manda- ILCS 505/10a(g). Senator Carl Hawkinson suggested that tory arbitration,” and a “public injury” pleading requirement. the second amendment would “balance the scales” and “even 89th Ill. Gen. Assem., Senate Proceedings, April 26, 1995, at up” the result attained by Section 10a(f), allowing a con- 31-32 (statements of Senator Cronin). sumer to get prejudgment interest on the entire judgment from the date of the offer, if the defendant vehicle dealer refused to accept the offer and the consumer was awarded as much or more at trial. 87th Ill. Gen. Assem., Senate Proceedings, June 23, 1992, at 162. Besides vehicle dealers being a The offer of judgment amendment was met with some common target of ICFA claims, the criticism. Senator Tom Dunn argued that it would have a “chilling effect” on “the right of individuals to seek redress reasoning behind why the ICFA for wrongs” involving vehicle dealers. Id. at 17. In his opinion, the amendment was likely to discourage attorneys from amendments applied to vehicle dealers representing victims of fraud, who would be left without only, as compared to all defendants, counsel and who would have to prosecute their case against a party with the assistance of an attorney. Id. at 17-18. Ac- never was explained fully. cording to Senator Dunn, the amendment violated the so- called principle of awarding attorney fees to a successful plaintiff when a fraud is involved, Id. at 18, a “principle” of which these authors are unaware. Senator Del Valle also criticized the amendment as limiting the remedies of individuals Like the previous amendment to the ICFA, this bill did defrauded by “unscrupulous” used car dealers. Id. at 20. not go without criticism. Representative Douglas Scott called Despite these objections, the Illinois Senate passed the amend- the bill “anti-consumer.” He was concerned the bill would ment adding Sections 10a(f) and 10a(g). Id. at 21. create a “worse problem than we’re trying to solve” by “ex- The ICFA was amended again by Senate Bill 317, effec- cluding legitimate people who don’t have the means to go tive January 1, 1996. S.B. 317, 89th Cong., (Ill. 1995). Sena- invest in discovery . . . .” 89th Ill. Gen. Assem., House Pro- tor Dan Cronin sponsored the bill to alleviate the issues posed ceedings, May 22, 1995, at 289. Likewise, Senators Alice by an “aggressive group of plaintiffs’ attorneys” who “churn” Palmer and Donne Trotter found its provisions onerous for consumer fraud cases against vehicle dealers by pursuing consumers, a view reportedly shared by numerous consumer small claims without a good-faith basis in order to “ring up” groups. 89th Ill. Gen. Assem., Senate Proceedings, April 26, attorney fees recoverable under the Act. 89th Ill. Gen. Assem., 1995, at 29-32. Representative Jan Schakowsky condemned Senate Proceedings, April 26, 1995, at 30. Senator Cronin those voting in favor of the bill as casting an “anti-consumer noted that, especially for minimal claims, there were a lack vote” since the “chief consumer complaints have to do with of good-faith attempts to negotiate and work out problems. the auto industry and very often car dealers.” 89th Ill. Gen. Id. Senator Kirk Dillard agreed, adding that there are two or Assem., House Proceedings, May 22, 1995, at 272. He added three lawyers in the Chicagoland area that “make an incred- that the bill would make it more difficult for consumers to ible amount of money over . . . the smallest, minutest” claims. take their case to court and would give an unfair advantage Id. at 32. He continued, stating that these attorneys “drag out to vehicle dealers. Id. Representative Barbara Currie also litigation on and on” in order to “make a killing off of auto criticized the bill for lowering the standard to which car deal- dealerships . . . .” Id. at 32-33. Senator Cronin sponsored the ers are held, implying that dealers should be held to a higher bill in order to curb frivolous suits against vehicle dealers standard so as to insure that vehicles are particularly safe for after receiving a complaint from a constituent. Id. at 28. Ac- consumers to drive. Id. at 292. cording to Representative Tom Cross, the bill was also meant Besides vehicle dealers being a common target of ICFA to rectify courts’ excessive awards of attorney fees under the claims, the reasoning behind why the ICFA amendments ap- ICFA. 89th Ill. Gen. Assem., House Proceedings, May 22, plied to vehicle dealers only, as compared to all defendants, 1995, at 269. never was explained fully. When asked why he wanted to The 1996 amendment added a 30-day pre-suit notice re- single out car dealers rather than other entities who might quirement to give the parties an opportunity to work out a defraud a consumer, Representative Cross said the bill was a

46 First Quarter 2009

compromise between the Attorney General’s Office and the divergent treatment of vehicle dealers and other ICFA defen- trial lawyers. Id. at 290 (statements of Representative Cross). dants. The supreme court opinion quoted from the appellate Senator Cronin agreed. 89th Ill. Gen. Assem., Senate Pro- court opinion, which had stated, “there is nothing more unique ceedings, April 26, 1995, at 30. Neither gave a substantive about a fraud case brought against a car dealer than one reason for the limitation, but Senator Cronin stressed that he brought against any other person or entity . . . .” Id. at 23 was open to the possibility of broadening the people or enti- (quoting from 332 Ill. App. 3d 605, 614). The supreme court ties to which the bill applied. Id. found that the lack of a purpose for limiting the offer of judg- The bill’s limited application led to its demise in 2003, ment provision to vehicle dealers became especially appar- when the Illinois Supreme Court found it unconstitutional in ent upon looking at the legislative history of the amendments. Woodfield Chevrolet, 208 Ill. 2d 12, 34. In that case, Charles Woodfield Chevrolet, 208 Ill. 2d 12, 23. The offer of judg- Allen filed suit against Woodfield Chevrolet, Inc. ment provision itself was modeled after Fed. R. Civ. P. 68 to (Woodfield), alleging that Woodfield engaged in false and encourage settlement and discourage cases being tried solely misleading conduct in connection with Allen’s purchase of a to accumulate attorney fees. Id. at 26-27. The court was not vehicle in violation of the ICFA. Allen sought a declaration impressed with the reason given for making the amendments that the offer of judgment mechanism of the ICFA was in applicable only to vehicle dealers and quoted Representative violation of the Illinois Constitution as special legislation. Cross’s response to being asked why he chose to single out Id. at 14. The Illinois Constitution provides that “[t]he Gen- car dealers: eral Assembly shall pass no special or local law when a gen- [T]his was the language that was agreed upon by . . eral law is or can be made applicable. Whether a general law . the trial lawyers and the Attorney General’s Of- is or can be made applicable shall be a matter for judicial fice. In talking with them, it was an attempt to com- determination.” Ill. Const. 1970, art. IV, § 13. The court noted promise . . . . This seems to be one area where there that prior to the 1993 and 1996 amendments, the ICFA ap- has been an abuse of this statute . . . . If you want to plied universally to any person. Woodfield Chevrolet, 208 broaden the people or entities or agencies that have Ill. 2d 12, 16-17. been listed, I’ll be glad to work with you on that. If The court also noted that the offer of judgment provi- you want to include yacht dealers that’s fine. If you sions of Sections 10a(f) and (g) were added in 1993, while want to include refrigerator dealers that’s fine, if you the punitive damages provision of Section 10a(a) and the want to include air conditioner dealers that’s fine, requirement that plaintiffs provide notice of suit in Section motorcycle dealers . . . . 10a(h) were added in 1996. Id. at 17-18. The court found that the punitive damages and public injury provisions did Id. at 31-32, quoting 89th Ill. Gen. Assem., House Proceed- not address the problems that the offer of judgment mecha- ings, May 22, 1995, at 290-91 (statement of Representative nism was designed to remedy, namely pursuing ICFA claims Cross). solely to accumulate and collect attorney fees. Id. at 29-30. In finding the amendments unconstitutional, the court Despite finding the amendments unconstitutional, the offered the following explanation: Illinois Supreme Court believed that the amendments were enacted in response to the very real problem of plaintiffs’ Section 10a, as amended, clearly divides consumer attorneys pursuing ICFA cases solely to accumulate legal fees. fraud plaintiffs into two groups: consumers de- Woodfield Chevrolet, 208 Ill. 2d 12, 28. The court specifi- frauded by new and used vehicle dealers, who are cally stated that, in order to encourage settlement, a general subject to the statutory amendments, and all other law could be made applicable, and noted that “the federal defrauded consumers who are not subject to the offer-of-judgment rule, upon which subsection 10a(f) was amendments. The statute likewise divides consumer modeled, is a rule of general applicability in civil proceed- fraud defendants into two groups: new and used ve- ings.” Id. at 32. hicle dealers to whom the amendments apply, and The court noted that the attorney fee provision of the all other [defendants]. ICFA applies to the “prevailing party” and “applies to pre- Id. at 20-21. vailing defendants, as well as prevailing plaintiffs” (id. at 33), although not with the same burden of proof, as discussed That the Illinois Supreme Court found the amendments below. The court also reasoned that vehicle dealers addition- to Section 10a unconstitutional is not surprising, given the (Continued on next page)

47 IDC Quarterly

Racking Up Attorney Fees (Continued) during East Africa’s dry season. Krautsack, 223 Ill. 2d 541, ally have the option of pursuing sanctions under Illinois Su- 544. Krautsack alleged Luxury told him his trip would not preme Court Rule 137 when the lawsuit was “interposed for be disrupted by rain. Id. The trial court granted Luxury’s any improper purpose, such as to harass or to cause unneces- motion for summary judgment finding that Luxury could not sary delay or needless increase in the cost of litigation.” Id. predict the weather and was not liable for acts of God. The at 34, quoting 155 Ill. 2d R. 137. court awarded Luxury attorney fees under Illinois Supreme Court Rule 137 and the ICFA. Id. at 546-48. The appellate Other Forms of Protection Against ICFA Abuse court reversed on plaintiff’s refined theory that there was a are Inadequate fiduciary relationship creating a duty between a travel agent and its customer, and found a fact issue as to whether Luxury There are problems with the Woodfield Chevrolet court’s breached that duty by failing to inform Krautsack that if he reasoning that, because defendants are entitled to attorney cancelled his trip Luxury would lose a substantial amount of fees under the ICFA and because they are protected by Rule money. Id. at 547-49. The appellate court accordingly found 137, defendants are protected from abuse. Although defen- Luxury was not entitled to attorney fees under the ICFA, dants theoretically can recover attorney fees under the ICFA, because it was no longer the prevailing party. Id. Judgment the Illinois Supreme Court has held that defendants must was entered for Luxury on all counts on remand. Luxury prove bad faith by the plaintiff in order to recover those fees. appealed the appellate court’s denial of attorney fees arguing Krautsack, 223 Ill. 2d 541, 557. Plaintiffs, on the other hand, that this case “had nothing to do with consumer fraud,” “but need not prove bad faith before recovering their fees. Indeed, everything to do with a client that was merely upset because in order to be held liable under the ICFA, a defendant need it rained on a trip.” Id. at 549, 563. not have acted with intent to defraud a plaintiff. Carl The Illinois Supreme Court first explained that the award Sandburg Vill. Condo. Assoc. v. First Condo. Dev. Co., 197 of attorney fees was discretionary under the ICFA, because Ill. App. 3d 948, 953, 557 N.E.2d 246 (1st Dist. 1990) Section 10a(c) states that a court “may” award attorney fees. Id. at 554. The factors appellate courts use to determine whether a trial court abused its discretion in awarding fees include, but are not limited to:

Although defendants theoretically can (1) the degree of the opposing party’s culpability or bad faith; (2) the ability of the opposing party to sat- recover attorney fees under the ICFA, isfy an award of fees; (3) whether an award of fees the Illinois Supreme Court has held against the opposing party would deter others from acting under similar circumstances; (4) whether the that defendants must prove bad faith party requesting fees sought to benefit all consumers or businesses or to resolve a significant legal by the plaintiff in order to recover question regarding the Act; and (5) the relative mer- those fees. Plaintiffs, on the other its of the parties’ positions. hand, need not prove bad faith before Id.

recovering their fees. The court recognized that the appellate courts were split as to whether defendants must show bad faith to recover attorney fees or whether bad faith was only a factor. Id. at 555. Luxury argued that bad faith was not required, because the language of the ICFA did not require it. Id. at 556. The court The unfairness of this uneven burden was well demon- disagreed, reasoning that the ICFA is “[a]n Act to protect strated in Krautsack v. Anderson. In that case, Richard consumers and borrowers and businessmen against fraud, Krautsack brought an ICFA suit against Luxury Adventures, unfair methods of competition and unfair or deceptive acts Ltd. (“Luxury”), alleging that Luxury defrauded him after El or practices in the conduct of any trade or commerce.” Id. Niño caused his African safari trip to be interrupted by rain (Continued following the Monograph)

48 First Quarter 2009

The fee shifting provision was added to the act to allow plain- stitutional provision, might suspect that the “trial lawyers” tiff consumers with small claims to bring their cases. Id. at were aware that, by restricting the application of the provi- 557. The fee shifting award for prevailing defendants was sions, the likelihood of a finding of unconstitutionality in- added to deter bad-faith by plaintiffs. Id. creased substantially and thus turned “compromise” into “vic- The court dismissed Luxury’s argument that the legisla- tory.” Whatever their thinking might have been, the outcome ture could not have intended for plaintiffs to always receive is now clear. attorney fees while requiring defendants to prove bad faith because a prevailing plaintiff must have proved the defendant committed “consumer fraud” before being awarded attorney fees. Id. at 558. The court then found that Luxury had The cynical or perhaps simply not proved bad faith, because although plaintiff’s theory was “uncommon,” it was “not unheard of.” Id. at 563-64. the defense-minded observer, upon Additionally, although defendants might be protected from considering the legislative history frivolous lawsuits in theory by Rule 137, in reality, Rule 137 sanctions rarely are awarded. When they are awarded, the sum of the unconstitutional provision, often is less than the full amount of fees incurred. In addition, liability for such fees is uninsurable, and many plaintiffs likely might suspect that the “trial lawyers” lack the means to pay them personally. Thus, practically speak- were aware that, by restricting the ing, potential relief under Rule 137 is limited at best. Two members of the Illinois Supreme Court disagreed application of the provisions, the with the majority’s reasoning in Woodfield Chevrolet. Jus- tices Robert Thomas and Rita Garman dissented because of likelihood of a finding of their belief that the offer of judgment provisions, as applicable to vehicle dealers only, was constitutional. Woodfield unconstitutionality increased Chevrolet, 208 Ill. 2d 12, 34 (Thomas, J, dissenting). Although substantially and thus turned making the provision applicable to vehicle dealers alone was special legislation, the dissenting justices did not believe it “compromise” into “victory.” was an arbitrary classification. Id. The Illinois General As- sembly believed plaintiffs’ attorneys were pursuing ICFA cases against vehicle dealers solely to accumulate and recover attorney fees, and the dissenting justices did not think It is surprising that the Illinois General Assembly has the legislature’s solution was totally unrelated to the prob- not acted to fix the problem, by simply striking the “vehicle lem it identified. Id. at 35. The dissenting justices admitted dealers” references in the offer of judgment provision and that “these amendments may someday induce a plaintiff to replacing them with the words “any defendant.” Without lim- accept a less-than-ideal settlement offer, and they may even iting the offer of judgment’s application to a specific group, insulate the occasional car dealer from paying the plaintiff’s the provision no longer would be impermissible special leg- attorney fees simply because the offer exceeded the judg- islation. ment by a single dollar”; but the justices did not believe that Two other simple solutions exist as well. For a universal the foregoing issue was presented for resolution. Id. at 37. solution, Illinois could join the vast majority of other states that The dissent also took issue with the majority’s belief that the have enacted offer of judgment provisions in their state codes, amendments favored vehicle dealers solely, because only rather than adding such provisions ad hoc into individual stat- vehicle dealers had the “unique burden” of being assessed utes and running the risk that a court will find a portion of the prejudgment interest for rejecting a plaintiff’s demand under statute unconstitutional, as in Woodfield Chevrolet. Illinois could Section 10a(g). Id. at 37 n.2. also adopt a hybrid approach that would provide an offer of judgment mechanism that would apply to all statutes in which Going Forward attorney fees may be recovered. Either would diminish the likelihood of attorney abuse by destroying the incentive to “churn” The cynical or perhaps simply the defense-minded ob- a case solely for fees, and would create the positive side effect server, upon considering the legislative history of the uncon- of encouraging settlement.

49 IDC Quarterly

One high profile position that has been characterized by diversity of late is worth note. The position now known as Diversity Secretary of State has been filled by more than 60 individuals since 1789. Although these appointed individuals were clearly diverse, in that they represented different political parties and varying foreign policy philosophies, there was By Margaret M. Foster no inclusion of any racially or gender diverse candidates for McKenna Storer over 200 years. However, over the past decade, the three in- Chicago dividuals who have filled this position, Madeline Albright, Colin Powell and Condoleezza Rice, as well as the woman who has been selected to follow them, Hilary Rodham Clinton, are diverse from those who preceded them. These The Politics of Inclusion Cabinet officers reflect the inclusion of women and minorities at high levels of government. As we see more diverse Over the past year, the topics of diversity and change individuals on our national stage, fulfilling a goal of inclu- have been in the forefront of our national conversation, re- sion, we will see less comment and focus on the race, gender flecting issues in the presidential primaries, campaign and or ethnicity of a candidate as a criterion. election. Diversity is all around us and extends beyond com- Against this backdrop, reports on the status of minori- mon concerns such as race, gender, sexual orientation, dis- ties and women in law firms have revealed that there is still a ability and ethnicity. It includes educational background, re- great deal of work to be done in our profession. The National gional association, marital status, style of communication or Association of Law Placement, which maintains employment problem solving, intellectual ability, and thousands of other statistics on the legal profession, recently released data on categories. Our focus on specific categories of diversity arises large firms, revealing that minorities account for about six from a lack of inclusion of people with diverse characteris- percent of partners at major law firms, while women account tics in certain areas in the public and private sectors. for almost 19 percent. Minority women accounted for less than two percent of the major law firm partners. Although lawyers are leaving the profession in record numbers, women and people of color leave law firms at a Against this backdrop, reports on higher rate than male and nonminority lawyers. An Ameri- the status of minorities and women in can Bar Association study revealed that more than 80 percent of minority women have left their law firms by the eighth law firms have revealed that there is year of employment. This is obviously an impediment to minority women reaching the equity partner status. Further, still a great deal of work to be done law school applications from minority students are declin- in our profession. ing, according to the Law School Admission Council. The National Association of Women Lawyers released its third

With recent reports on Cabinet members for the incoming President, diversity discussions continue. Questions con- About the Author tinually arise from various interest groups. Are the selections of this diverse incoming president sufficiently diverse? Margaret M. Foster is a partner at the Chicago firm of Should not a candidate of a specific ethnicity be appointed McKenna Storer. Ms. Foster focuses her practice in Toxic as Cabinet secretary in this position? Because of the lack of Tort, Mass Litigation, Premises Liability, Product Liability, inclusion in the past, there is significant focus on the need Complex Claims, Construction and Appeals. A member of the IDC Board of Directors, Ms. Foster has also served as for inclusion today. This focus extends beyond a simple need President of the Women’s Bar Association of Illinois and to fill slots with diverse candidates; rather, it acknowledges the National Association of Women Lawyers. Ms. Foster earned her B.A. in 1979, M.A., with honors, in 1980 and her J.D., with honors that the inclusion of diverse perspectives leads to better de- from the University of Arkansas. cision making and results.

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annual Survey on the Retention and Promotion of Women in Law Firms, which revealed significant income disparity between men and women at the partnership level. On average, Legislative Update women at the equity partner level earn almost $90,000 less than their male counterparts. Also, there are significantly fewer women at the equity partner level, as the percentage of women who are equity partners is half the percentage of By: Gregory C. Ray nonequity partners. Further, only six percent of the manag- Craig & Craig ing partners of major firms are female. Given that only six Mattoon percent of partners at large firms are minorities, the percentage of managing partners at major firms who are minority lawyers is likely quite small. Using Legislative “History” to (Mis)Interpret Statutes

While the recent reports present some On November 25, 2008, the Illinois Supreme Court issued its decision in Ready v. United Goedecke Services, Inc., discouraging news, law firms are Doc. No. 103474, 2008 WL 5046833. On pages 10 and 11 of inching toward greater diversity. the folio (or slip) opinion, Justice Charles Freeman’s plurality opinion discusses comments made on March 20, 2007, It is important that organizations by Senator John Cullerton during a floor debate addressing Senate Bill 1296. In his comments, Senator Cullerton de- continue to track the status of racial scribed his understanding of Section 2-1117 of the Code of and ethnic minorities and women in Civil Procedure, 735 ILCS 5/2-1117, as it was enacted in 1986. Justice Freeman’s opinion relies, in part, on these com- the legal profession, a profession that ments — made by a senator on the floor some 21 years after Section 2-1117 was enacted — as proof of what Section 2- holds significant responsibility for 1117 means. This unusual extension of the concept of “legis- administration of laws and rules. lative history” provides an opportunity to discuss in this column the value of comments made on the floor of the Senate or House when a court is called upon to interpret a statute. As of the time this column is being written, a petition for rehearing has been filed and is pending. Perhaps there will While the recent reports present some discouraging news, be some modification of Justice Freeman’s opinion by the law firms are inching toward greater diversity. It is important (Continued on next page) that organizations continue to track the status of racial and ethnic minorities and women in the legal profession, a profession that holds significant responsibility for administration of laws About the Author and rules. Recognition of disparate treatment and awareness of the present status are important components of the process necessary to alter the factors leading to the differentiation and move Gregory C. Ray is a member of the Mattoon, IL firm of Craig & Craig, where he concentrates his practice in em- toward the ultimate goal of inclusion. ployment law, civil trials and appeals and workers compensation law. A graduate of Southern Illinois University and the University of Illinois School of Law, Greg served as the 2002-2003 President of the IDC and is a member of the Cole-Cumberland Bar Association, Illinois State and American Bar Associations, Illinois Appellate Lawyers Association and the Defense Research Institute.

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Legislative Update (Continued) wholly unrelated to the legislation then being debated. Watch- time the case is fully concluded at the Supreme Court level ing from the gallery, one might well wonder if anyone is even and released for publication, so these comments should be listening to what is being said, other than the point person taken in that light. (usually a sponsor who is offering the debate comments), the Using legislative history, especially in the form of state- matching person (if there even is one) on the other side of ments made on the floor of the chamber during the presenta- the aisle, and the court reporter. tion of legislation, or so-called floor debate, is like using the ground-up gristle in sausage as a basis to decide why sausage tastes like it does. The Illinois legislature considers and votes on many pieces of legislation that have been substan- Anyone who believes that what is said tially drafted by so-called special interests. Perhaps the spon- in debates in the Illinois legislature sor actually has some knowledge and understanding of the subject matter of the legislation and can talk in an intelligent merits credibility with regard to the and articulate manner on the floor of the chamber. On the other hand, perhaps the legislator is reading a intention of the legislature might have script handed to him by a lobbyist for a relevant special interest. It is not unheard of for a script to be prepared by a a different belief by spending a half lobbyist whose job is to find a legislator who is willing to day in the gallery above one of the make a pronouncement on the floor of the chamber during debate, which is intended to effectively restate the language chambers and observing the activity. in the legislation, at least to the extent that it allows the lobbyist to put a spin on the legislation that can then be taken to undecided or uncommitted legislators. Upon “learning” of the legislative history having been pronounced on the floor On occasions, there are engaging and amusing interchanges of the chamber, those legislators might decide that the legis- across the aisle during the debates. If there is a point made by lation is really something different than the understanding of one of the debaters as to the application of the legislation under its meaning had been to that point. a particular set of facts and a contrary view expressed from across Pronouncements by legislators from the floor also can the aisle, or even from the same side of the aisle by another be scripted at a party caucus, with the delivery often intended legislator engaged in the debate process on the floor of the cham- to describe a scenario to which the legislation would apply if ber, is the sponsor’s version the one that should be determina- passed into law, and how that caucus contends a court should tive of legislative intent? What if the legislator with the contrary interpret the legislation as it applies to that scenario. The spon- view voted for the legislation? sor of legislation may offer comments on the floor of the Fast forward 20 years and you can listen to the pronounce- chamber intended to appear to soften or ameliorate the seem- ment of a current legislator as to what the legislature meant when ingly harsh effects of the legislation on a particular set of the statute was enacted that is now being considered for amend- facts, in order to persuade a legislator or two whose vote ment. A legislator who claims to know what an almost entirely might be needed to pass the legislation. different group of legislators meant 20 years before ought to be This is not to say that Senator Cullerton’s comments were called upon to have some basis, such as then-contemporaneous scripted or influenced by a lobbyist. This is merely to point legislative history, to support the assertion. out the unreliability of comments by a senator or representa- How can bootstrapping a comment today on to non-ex- tive on the floor, when it comes to discerning the meaning of istent legislative history of two decades vintage somehow a statute. produce anything of credibility? It is noteworthy that the “leg- An observer of the activity on the floor of a chamber islative history” described in the folio opinions of Justice during the so-called debates when legislation is being con- Freeman and Justice Rita Garman is not floor debate or any- sidered on the floor will see many empty seats on both sides thing else contemporaneous to the passage of the original of the aisle. Some are empty because those legislators sim- 1986 legislation. ply are not in the building or at least in the chamber. Other Anyone who believes that what is said in debates in the seats might be empty because a legislator or several legisla- Illinois legislature merits credibility with regard to the inten- tors are talking to someone else about a topic that might be tion of the legislature might have a different belief by spend-

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ing a half day in the gallery above one of the chambers and observing the activity. If the person were permitted to mosey into the back hallways (although access can be difficult to Technology Law obtain), he or she probably would see and hear what really goes on. There, the observer probably could find out what goes on during a legislative caucus and, best of all, could By: Christopher M. Garcia listen in on a brainstorming session with the chamber’s ma- Boggs, Avellino, Lach & Boggs, LLC jority leadership, including not only the legislators themselves St. Louis, MO and their staff, but also the well-positioned lobbyists whose voices are heard at such meetings. I suggest that at the end of devoting time to such research, any observer would conclude that just as gristle is no credible basis for an accurate determination of the relevant ingredients that give sausage its fla- vor, neither does legislative history offer credible insight into A Remedy Without a Right? the true intention of the legislature in any statute. The Extent of Licenses in These observations about Illinois legislative history are not without substantial parallels at the federal level. Justice Copyright and the Digital Antonin Scalia is especially noteworthy for acerbic comments World about the value of legislative history. “Of course even if all of the Court’s invocations of legislative history were not ut- terly irrelevant, I would still object to them, since neither the Terms of Use, Licenses, Site Agreements, Privacy No- statements of individual Members of Congress (ordinarily tices: they have become ubiquitous on the Internet, from addressed to a virtually empty floor), nor Executive state- newspaper sites to Massive Multiplayer Online Games. Many ments and letters addressed to congressional committees, nor of these contracts contain terms which attempt to restrict the the nonenactment of other proposed legislation, is a reliable user’s ability to sell, control, and operate the program or Web indication of what a majority of both Houses of Congress Page. Although licenses are a well established form of con- intended when they voted for the statute before us.” Crosby tract, they are creating turmoil in the courts when software v National Foreign Trade Council, 530 U.S. 363, 390, 120 licenses and copyright law conflict. S. Ct. 2288 (2000) (Scalia, J., concurring). Under the law, a copyright is granted to “original works These comments of Justice Scalia appear to have encour- of authorship fixed in any tangible medium of expression.” aged other federal courts to raise serious and apropos ques- 17 U.S.C. § 102. A copyright grants the author a panoply of tions about how Congress creates legislative history. See, for rights and controls over the work, including the right to con- example, United States v. Ceballos-Torres, 218 F.3d 409, 414 (Continued on next page) n.6 (5th Cir. 2000); In re Champion Enters. Secs. Litig. v. Champion Enters. Inc., 144 F. Supp. 2d 848, 859-60 (E.D. Mich. 2001); and Bristol-Myers Squibb Co. v. Rhone-Poulenc Rorer, Inc., No. 95-8833, 2001 U.S. Dist. LEXIS 19361, at *10 n.6 (S.D.N.Y. Nov. 27, 2001). Citing the passage from About the Author Justice Scalia’s concurring opinion noted above, one federal district judge has noted, “Resort to legislative history may Christopher M. Garcia is an associate at Boggs, Avellino, be appropriate in some circumstances, although this exercise Lach & Boggs, LLC in St. Louis, Missouri. He earned a must be undertaken with caution in those instances where Bachelor of Science in Mathematics from the Ohio State lawmakers deliberately insert an ambiguity to mask a politi- University, and a J.D. from Tulane University’s School of Law. In law school, he received the CALI award in cal disagreement and then paper the legislative history record Copyright, was a student attorney in the Environmental Law with advocacy statements.” Brown v Thompson, 252 F. Supp. Clinic, and earned an Environmental Law Certificate for advanced work in Environmental Law. Mr. Garcia is licensed to practice in 2d 312, 316 (E.D. Va. 2003). These comments apply equally the States of Missouri and Illinois, and is a licensed patent attorney with the well to interpreting Illinois legislation. United States Patent and Trademark Office. He concentrates his practice on commercial contract and transactional issues, insurance coverage issues, policy The confounding problem is: how can the court distin- and contract analysis, interpretation and statutory conformity. guish the tripe from the loin in analyzing the sausage at hand?

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Technology Law (Continued) count for one month. Id. Vernor had contacted Autodesk on trol the work’s distribution, public performance, creation of two occasions, informing it that he had acquired the soft- derivative works, and of course, limitations on copying. See ware legally. Id. at 1166. On the first occasion, Vernor was 17 U.S.C. § 106. A key limitation on the right of distribution told Autodesk did not allow resale of its products and that is the “first sale” doctrine, codified at 17 U.S.C. § 109. such a sale would infringe its copyright. Id. On the second The first sale doctrine allows a legal owner of a tangible occasion, an attorney for Autodesk told Vernor he would ad- copy of the work to “sell or otherwise dispose” of that copy vise Autodesk “to take further action” if Vernor continued to without any approval from the copyright owner. Id. Used CD post copies on eBay. Id. stores operate pursuant to this doctrine. The other rights still Vernor brought a declaratory judgment action against exist – when a consumer purchases a used copy of a CD, he Autodesk, claiming he had two legal copies he wanted to cannot then make multiple copies of it for resale. The doc- auction on eBay. Id. at 1165. The copies in question were trine removes from the record company or other copyright legally transferred from Autodesk to a Seattle-based archi- holder the right of repossessing the CD, or controlling the tecture firm as a settlement for an unrelated dispute, and the further distribution of that one copy, by preventing the confirm later sold them at an office sale to Vernor. Id. at 1165- sumer from selling it, giving it away, or throwing it away. 1166. In the settlement agreement between the Seattle firm Without the first sale doctrine, a copyright holder could viti- and Autodesk, the firm agreed to abide by the license terms ate the secondary market for any legally purchased work, of the software. Id. at 1166. The license prohibited the trans- forcing all consumers to buy new copies. fer or sale of the software to another person without The hallmark of an effective license of a copy of a copy- Autodesk’s consent, and identified itself as a “nonexclusive, righted work, on the other hand, is that it shows the copy- nontransferable license.” Id. Without the license, the trans- right owner’s “intent to regain possession,” of the copy and fer from Autodesk to the architecture firm would have al- “[t]he absence of this intent is strong evidence that the prod- lowed that firm, and Vernor subsequently, to sell the copies uct was sold.” UMG Recordings, Inc. v. Augusto, 558 F. Supp. without consent from Autodesk, under the auspices of the 2d 1055, 1061 (C.D. Cal. 2008). A license granted by a copy- first sale doctrine of 17 U.S.C. § 109(a). Id. However, pos- right owner to another party results in that owner retaining session of the copy is not sufficient to invoke Section 109(a). control, through the licensing agreement, over the licensee’s Instead, the possessor of the copy must have acquired own- use of the licensed copy. ership of the copy. Id. Vernor could only be an owner if the The extent to which licenses control the use of software has transfer from Autodesk to the architecture firm was a sale, in become hotly debated in federal district court cases. These cases which case, any violation of the license would give rise to a explore the manner in which copyright and contract law should breach of contract claim, and not an infringement claim. Id. interact. In May of 2008, Judge Richard A. Jones of the District To determine whether the transaction at issue was a li- Court for the Western District of Washington held that the trans- cense or a sale, the court followed the Ninth Circuit prece- fer of a copy of software to a first recipient constituted a sale, dent of United States v. Wise, 550 F.2d 1180 (9th Cir. 1977). even though it was ostensibly governed by a license. The first Vernor, 555 F. Supp. 2d at 1169. Wise involved a series of recipient became the subsequent holder of the copy, able to as- contracts between movie studios and various recipients of sert the “first sale” doctrine as a defense to the copyright holder’s film prints. While most of these contracts were held to be infringement claim arising from an attempted sale in the sec- licenses, loans, or other non-sale transactions, there were ondary market. Vernor v. Autodesk, Inc., 555 F. Supp. 2d 1164, some that were determined to be sales. Id. at 1169-1170. The 1170 (W.D. Wash. 2008). “critical factor” in Wise was whether the film print had to be In Vernor, Autodesk was the creator and copyright owner returned – reacquisition by the studios after a time consti- of a software program called AutoCAD. Id. at 1165. Mr. tuted a license, while retention by the recipients, even in cases Vernor had, over the course of a few years, acquired legiti- of contractual prohibition of further transfer or mandatory mate copies of the software, and posted them for sale on eBay. destruction of the print by the recipients, was interpreted as a Id. However, each time he began an auction, Autodesk would sale. Id. at 1170. issue a Digital Millennium Copyright Act (“DMCA”) notice Relying upon Wise, the Vernor court held the AutoCAD to eBay, insisting the auction would violate its copyright. Id. transfer to the architecture firm was a sale. Id. The court would eBay would then suspend the auction, Vernor would respond, not simply allow the label placed on the transaction by and eBay would reinstate the auction. Id. at 1165-1166. Af- Autodesk to be determinative of the actual nature of the trans- ter the fifth copy was posted, eBay suspended Vernor’s ac- action – it required that one examine the realities of the trans-

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action itself. Id. at 1169. The Autodesk transfer involved per- when used by the owner of a legitimate copy. Id. manent retention of the copy by the firm, for an up-front, The “MAI trio,” as the Vernor court refers to those ear- one-time-only price, even though it had restrictions on fur- lier Ninth Circuit decisions, all held the respective infringers ther sales, and mandated destruction of the software if up- were not owners of the software in question, so they could grades were purchased. Id. at 1170. The Vernor court noted not be protected by Section 117 when their infringing use that under Wise the transaction was a sale and Autodesk’s made copies of the software. See MAI, 991 F.2d at 519 n.5; ability to control the further transfer of the copy to Vernor Triad, 64 F.3d at 1335; Wall Data, 447 F.3d at 786. Each of was extinguished by the first sale doctrine. Id. at 1170-1171. those cases involved licenses, yet not one of the cases cited Autodesk may still possess breach of contract claims against Wise, nor did MAI or Triad analyze the license terms at is- the architecture firm, but those claims do not affect Vernor. sue. Wall Data concluded the restrictions contained in the Id. at 1170 n. 5. license were “sufficient to classify the transaction as a grant of license,” and not a sale. Vernor, 555 F. Supp. 2d at 1172 (quoting Wall Data, 447 F.3d at 785). The Wall Data license, however, placed no restrictions on resale. Id. The Vernor court, finding the conflict of precedent to be irreconcilable, The “MAI trio,” as the Vernor court followed the earliest opinion, Wise, as it was required to do refers to those earlier Ninth Circuit under Ninth Circuit law. Vernor, 555 F. Supp. 2d at 1172. Shortly after Vernor, the District Court of Arizona was decisions, all held the respective faced with a similar situation, and chose instead to follow the MAI trio. MDY Industries, LLC v. Blizzard Entertainment, infringers were not owners of the Inc., Doc. No. 06-2555, 2008 WL 2757357 (D. Ariz. July 14, 2008). In MDY Industries, MDY brought a declaratory judg- software in question, so they could ment action against Blizzard, due to Blizzard’s threats to file a not be protected by Section 117 when lawsuit against MDY over its “Glider” software. Blizzard publishes the popular “World of Warcraft” (“WoW”) online game. their infringing use made copies Id. at *1. In the game, players geographically separated can interact within a virtual universe, where they engage in quests, of the software. fight monsters, and, importantly in the context of the lawsuit, gain experience and power within the game itself. Id. In order to gain levels, one must actually play the game – a character does not increase in experience or power while the user is away at This did not end the analysis though, as the court recog- work or asleep. Id. WoW’s software involves two components: nized a lingering conflict between Wise and a “trio of deci- the client and the server. Id. The server is run by WoW, while sions” out of the Ninth Circuit. Those cases, Wall Data Inc. users access the server by using the client component on their v. Los Angeles County Sheriff ’s Dep’t., 447 F.3d 769 (9th Cir. home machine, which they purchase either digitally online or 2006), MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 physically at stores. Id. (9th Cir. 1993), and Triad Sys. Corp. v. Southeastern Express MDY created the “Glider” program, which basically Co., 64 F.3d 1330 (9th Cir. 1995), were principally concerned plays the game for a user while he or she does other things. with the application of 17 U.S.C. § 117. That statute permits Id. This allows the character to progress through the game, an “owner of a copy of a computer program” to make copies typically by performing mundane tasks, so the user can re- of the software when such copying is an “essential step in turn as a more powerful and experienced character, without the utilization of the computer program in conjunction with having to do all the work herself. Id. Blizzard contended the a machine.” 17 U.S.C. § 117(a). A computer’s random ac- use of Glider diminished the value of WoW, and caused Bliz- cess memory (“RAM”) provides one example of this prin- zard to lose customers and revenue, since those customers ciple. Computer programs often require that multiple copies not using Glider may decide the game has become unfair of portions of the program be made in the computer’s RAM and tilted in favor of those who utilize Glider to build up in order to run properly. Congress implemented Section 117 their characters, akin to baseball players who feel they can- to protect this essential copying for the computer software to not compete with other players on performance-enhancing work, clarifying that such copies are not infringing copies (Continued on next page)

55 IDC Quarterly

Technology Law (Continued) sive. Id. at *10. The MDY court felt obliged to follow the drugs. Id. MDY argued its product actually enhanced the MAI trio, because the case before it was bound to Section game-playing experience and could assist disabled users in 117, not Section 109. Id. Even though the Vernor court rec- playing WoW. Id. at *2. ognized both statutes used the same terms, and even though WoW’s End User License Agreement (EULA) and Terms the Wise decision was older, the MDY court still followed the of Use (TOU) clearly prohibit users from utilizing programs precedent from Wall Data. Without Section 117 forming a like Glider. Id. at *6. The court held that by acting outside of defense, MDY was liable to Blizzard for vicarious and con- the scope of the agreements, the copies made by the game in tributory copyright infringement. Id. the RAM while the user was also running Glider were not Vernor and MDY pose an interesting question for policy permitted by the license, and therefore were violations of and the law. Is the standard transaction involving an end user’s Blizzard’s copyright. Id. Section 117 would protect the users acquisition of software, for a one-time fee, a sale or a license? from a copyright infringement claim (although not a breach Although it may seem benign, the application of the first sale of contract claim) if the user was an owner of the software at doctrine to software “sales” drastically changes the balance the time it made these prohibited RAM copies. Id. in litigation between the copyright owner, and the alleged infringer, even assuming there is still an enforceable license outstanding. A copyright infringement claim is relatively easy to prove, and statutory damages, per infringement, start at $750 and can go up to a maximum of $150,000 for willful A copyright infringement claim is infringement. See 17 U.S.C. § 504. If instead, the first sale doctrine applies, the copyright owner is limited to contrac- relatively easy to prove, and statutory tual and common law actions, where only actual damages would be recoverable. In MDY, without copyright infringe- damages, per infringement, start at ment, Blizzard’s only action against MDY probably would $750 and can go up to a maximum of have been for tortious interference with contract (or something related), and breach of contract against the users who $150,000 for willful infringement. utilized Glider in violation of the EULA. Even assuming Blizzard could prove liability and damages under those theories, it is very likely the damages value would have been significantly less than the statutory damages under copyright. On one hand, a copyright owner has a vested interest in The court, however, following the MAI trio, found the its creation, and for products like WoW, an ongoing business transaction at issue was a licensing arrangement. Id. at *8. interest in assuring the use of its work complies with the li- The court first noted that Blizzard made it clear it was grant- cense it has created. Not only does the use of Glider poten- ing a license, not selling the copy. Id. In the EULA, it re- tially hurt Blizzard’s bottom line, but also may diminish other tained title to the copy and all ownership rights. Id. More- users’ enjoyment of the game. In Autodesk’s case, it loses over, the license restricted the user’s control over the copy, control of property it licensed to a party, when that party, in by allowing transfer to another individual, but only if the violation of its contractual duties, sells the product to a third user deletes any copies she has, transfers all original con- party. If the copyright owner did not intend to allow its legal tainers, documentation, and software, and only if the trans- copy to be used in a certain manner, should a third party be feree agrees to the EULA. Id. at *9. Even though a person able to circumvent Autodesk’s limitations through another’s who purchases the game at a store would probably believe breach, leaving Autodesk with a remedy only against the he or she has the right to use, transfer, or dispose of the copy middle man? as she sees fit, the court held notice of the license on the box Yet, there may be something to be said about the and notices during installation should inform the purchaser purchaser’s reasonable expectations and reliance on his or that she has purchased a license, not ownership of the copy. her understanding of the transaction. Blizzard’s license al- Id. The court lamented that “[o]ne wonders what more could lows a user to transfer his or her copy to another, so long as be done to make it clear that the purchaser is a licensee, not the user complies with certain terms. But in reality, copy- an owner, of the software.” Id. right already assures compliance, as it would be a clear vio- The court looked at Vernor, but did not find it persua- lation of copyright for the transferor to retain extra copies by

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failing to delete them off of her computer or by not transfer- ring all the original copies. Further, Blizzard’s terms controlled use of the game in conjunction with the server soft- Property Insurance ware and were not necessarily applicable to the client standing alone. (The use of Glider, without being connected to the online WoW service, would not accomplish anything, since By: Tracy E. Stevenson the user’s character could not be advanced without the con- Robbins, Salomon & Patt, Ltd. nection to the server). If licenses were attached to books, the Chicago publisher could prevent a reader from reselling it or even loaning it to a friend. Suffice to say, consumers would be surprised to find out they could not dispose of or loan out an already read book – is there a logical reason to treat software differently? Your Domain Name is Whether the first sale doctrine applies or not, the copyright holder still maintains numerous rights in the copy. Even Your Property, Isn’t It? if the transaction resulting in the user’s possession of the copy is a sale, the user is still not free to make additional copies and sell them, or to create derivative works from the copy, or In this era when we find ourselves dependent on our com- to publicly display or perform the work, without the author’s puters, cellular phones and the internet, we may forget that permission. The first sale doctrine simply permits a purchaser data on our web sites is property in which we have a vested to transfer his legal copy to another, without the author hav- interest. Often it is not until we lose access to such cyberspace ing an effective veto power. Allowing an author to have veto data that we then realize its value. power over a copy owner’s ability to transfer the copy per- While we attempt to create user names that are clever or mits a copyright owner to control both the primary market thought-provoking, most of us do not realize that our “origi- for a work and the secondary market. nal” domain name may have a prior or existing life. Unfortu- Using licenses as a back door for copyright infringement nately, we may not learn about the prior use until a lawsuit is creates an imbalance that favors the copyright holder too filed or we receive a letter from a lawyer. Similar to trade- greatly. Although software vendors have no intention of remark infringement, use of another’s domain name carries stiff gaining possession of their copies, they will seek to prevent penalties. Domain names or Uniform Resource Locators a transaction from being labeled a sale, to control the user’s (URL’s) are protected property with monetary value. The disposition of the copy indefinitely, thus suppressing a sec- United States statutes specifically address the proprietary ondary, used market. It is doubtful that any normal consumer aspects of the cyberspace data that we deal with every day would believe the copy he or she purchases it not her prop- (often without a second thought), and mandate the rules re- erty or that the software company could demand return of lated to ownership and use of these names in the public arena. the copy at any time. The use of the software is still gov- (Continued on next page) erned by the licensing agreement, which could be enforced as a contract against those who use the software in a manner inconsistent with its terms. However, breaching a contract does not a copyright violation make. The sale of the AutoCAD software and the use of Glider did not, in any way, infringe on the traditional rights of copyright. Both situations involve About the Author perfectly legal use of copyrighted work, in contravention of the terms of a contract. By granting copyright remedies for Tracy E. Stevenson is a partner in the Chicago firm of Robbins, Salomon & Patt, Ltd., where she concentrates her contractual breaches, MDY has put a thumb on the scales of practice in medical malpractice defense and insurance de- justice, and given copyright holders a disproportionate fense. She has defended cases on behalf of physicians and hospitals and represented various major insurance compa- amount of leverage to use against their opponents, who typi- nies in claims involving fraud. Ms. Stevenson also repre- cally are already resource strapped. If balance is not restored, sents corporations in litigation matters including TRO’s and shareholder actions. She is licensed in Michigan as well as it may not be long until we are all licensees of everything Illinois and speaks at various seminars around the country. and owners of nothing.

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Property Insurance (Continued) in a site accessible under the domain name; The Statutes (V) the person’s intent to divert consumers from the mark owner’s Subsection (d) of Section 1125 of Title 15 of the United online location to a site accessible under States Code, entitled “Cyberpiracy prevention,” reads as fol- the domain name that could harm the lows: goodwill represented by the mark, either (d) Cyberpiracy prevention. for commercial gain or with the intent (1) to tarnish or disparage the mark, by (A) A person shall be liable in a civil action creating a likelihood of confusion as to by the owner of a mark, including a personal name the source, sponsorship, affiliation, or which is protected as a mark under this section, if, endorsement of the site; without regard to the goods or services of the (VI) the person’s offer to transfer, parties, that person sell, or otherwise assign the domain (i) has a bad faith intent to profit from name to the mark owner or any third that mark, including a personal name which party for financial gain without having is protected as a mark under this section; used, or having an intent to use, the and domain name in the bona fide offering (ii) registers, traffics in, or uses a of any goods or services, or the person’s domain name that— prior conduct indicating a pattern of (I) in the case of a mark that is such conduct; distinctive at the time of registration of (VII) the person’s provision of the domain name, is identical or material and misleading false contact confusingly similar to that mark; information when applying for the (II) in the case of a famous mark registration of the domain name, the that is famous at the time of registration person’s intentional failure to maintain of the domain name, is identical or accurate contact information, or the confusingly similar to or dilutive of that person’s prior conduct indicating a mark; or pattern of such conduct; (VIII) the person’s registration or (III) is a trademark, word, or name acquisition of multiple domain names protected by reason of section 706 of which the person knows are identical or Title 18 or section 220506 of Title 36. confusingly similar to marks of others (B) (i) In determining whether a person has that are distinctive at the time of a bad faith intent described under subparagraph registration of such domain names, or (a), a court may consider factors such as, but not dilutive of famous marks of others that limited to are famous at the time of registration of (I) the trademark or other such domain names, without regard to intellectual property rights of the person, the goods or services of the parties; and if any, in the domain name; (IX) the extent to which the mark (II) the extent to which the domain incorporated in the person’s domain name consists of the legal name of the name registration is or is not distinctive person or a name that is otherwise and famous within the meaning of commonly used to identify that person; subsection (c) of this section. (III) the person’s prior use, if any, (ii) Bad faith intent described under of the domain name in connection with subparagraph (A) shall not be found in any the bona fide offering of any goods or case in which the court determines that the services; person believed and had reasonable grounds (IV) the person’s bona fide to believe that the use of the domain name was noncommercial or fair use of the mark a fair use or otherwise lawful.

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Statutory penalties for a violation of 15 U.S.C. § ute, Tex. Bus. & Com. Code § 16.29. 1125(d)(1) are authorized by 15 U.S.C. § 1117(d), which reads If the court finds a violation of the Anti-Cybersquatting as follows: Consumer Protection Act, it may award statutory damages. The plaintiff may elect, at any time before final judgment, to [T]he plaintiff may elect, at any time before final recover statutory damages in the amount of not less than judgment is rendered by the trial court, to recover, $1000 and no more than $100,000 per domain name. instead of actual damages and profits, an award of statutory damages in the amount of not less than $1,000 and not more than $100,000 per domain name, as the court considers just. We all must keep in mind that while Court Application of the Statutes the internet “belongs to everyone,” The courts have reviewed these statutory mandates per- domain names may be property of a taining to claims of alleged wrongful use of a domain name or a URL. The analysis is comparable to trademark infringe- single individual or entity with rights ment but has some unique characteristics. Usually, the first inquiry made by the court is whether the defendant regis- to possess it. tered the domain name in bad faith. Virtual Works, Inc. v. Volkswagen of America Inc., 238 F.3d 264, 269 (4th Cir. 2001) (citing to 15 U.S.C. § 1125(d)). The court looks at the nine factors delineated within the statute to establish whether there Interestingly, while the court’s opinion used the subjec- was bad faith. The court, however, is not limited to those tive “may” (286 F.3d at 275), the statute, on its face, appears factors, and can consider specific facts of a case or even eq- to state that if the plaintiff proves his case, he/she may elect uitable principles. to receive the express statutory damages which the judge must Next, the court inquires into whether the defendant: “(1) award. Additionally, there is no requirement that the court registered, trafficked in, or used a domain name; (2) that is consider the duration of the infringement when calculating identical or confusingly similar to a distinctive mark; or (3) damages, and the court can award damages as it considers is identical, confusingly similar to, or dilutive of a famous just under the statute. The E. & J. Gallo case also set prece- mark.” Virtual Works, Inc., 238 F.3d at 270 (applying § dent when it held that a violator can be held liable for statu- 1125(d)(1)(A)(ii)(I)-(III)); see also, Pinehurst, Inc. v. Wick, tory damages, even though it registered its name before en- 256 F. Supp. 2d 424, 427 (M.D.N.C. 2003). This inquiry fol- actment of ACPA, based upon its post-enactment use. lows traditional trademark infringement analysis. Addition- ally, the Fourth Circuit Court of Appeals remarked that: Conclusion

[W]hen a defendant registers a domain name that is The internet and our high-speed lifestyles appear to be identical to someone else’s trademarked name and here to stay. So are the regulations that control the use of thereby impacts the trademark owner’s business by domain names in order that all are treated equitably. We all preventing internet users from reaching the trade- must keep in mind that while the internet “belongs to every- mark owner’s own web site, this impacts the trade- one,” domain names may be property of a single individual mark owner’s business and is a use ‘in connection’ or entity with rights to possess it. with goods and services.

E. & J. Gallo Winery v. Spider Webs, Ltd., 286 F.3d 270, 275 (4th Cir. 2002) (referring to § 1125(d)(1)(B)(i)(III)). In that case, the court found that a permanent injunction was warranted to prevent the defendant from using the name under the Cybersquatting Act, 15 U.S.C. 1125 et seq., and the Texas unfair competition laws. See Texas Anti-Dilution Stat-

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1; 35 ILCS 105/2. Thus, if the shipping charges at issue could be considered part of the “selling price” of the items pur- Commercial Law chased through Wal-Mart’s website, they are part of Wal- Mart’s “gross receipts” under the ROTA and therefore are subject to sales tax. The court rejected the plaintiff’s argument that the ship- By: James K. Borcia ping charges were not actually part of the selling price of Tressler, Soderstrom, Maloney & Priess, LLP goods purchased online. The court determined that the cru- Chicago cial issue is whether there was “an inseparateable link” between the sale of goods and the associated shipping charges. If such a link existed, then the shipping charges were part of the selling price and subject to sales tax under the ROTA and the Use Tax Act; and if not, then they were not. First District Rejects Cause The plaintiff did not allege in her complaint that it was of Action Based on Sales Tax possible to purchase goods from Wal-Mart’s website without also paying for shipping. Furthermore, the plaintiff’s on Shipping Charges counsel conceded that selecting a shipping option was a necessary step in any online purchase. As a result, the court de- In Kean v. Wal-Mart Stores, Inc., et al., No. 1-07-1341 termined that Wal-Mart and its website setup created a nec- (Ill. App. 1st Dist. Nov. 21, 2008), the First District of the essary link between an online consumer’s purchase of goods Illinois Appellate Court recently had the opportunity to visit and the purchase of shipping services, which rendered the the issue of whether an online retailer violates Illinois law shipping charges subject to sales tax. The shipping charges by charging sales tax on shipping charges for goods purchased were determined to be linked with the sale of actual physical through the retailer’s website. After purchasing a trampoline goods so as to form part of the selling price of those goods online, the plaintiff filed a class action lawsuit against Wal- under the ROTA and the Use Tax Act. Mart alleging that Wal-Mart charged unauthorized sales tax This ruling is a positive one for industry, as many online on shipping charges for goods purchased through its website. retailers have practices similar to Wal-Mart’s. Based on the The plaintiff brought claims under the Illinois Consumer reasoning of this case, the key to avoiding liability under the Fraud and Deceptive Practices Act, 815 ILCS 505/1, et seq., Consumer Fraud and Deceptive Business Practices Act is for and for unjust enrichment, disgorgement of the allegedly online retailers to make sure that their sales tax charges are wrongfully retained money and injunctive relief to prevent linked to the total sales price for the product being purchased. Wal-Mart from collecting such taxes in the future. The trial court dismissed the complaint, finding that under the facts as alleged by the plaintiff, the shipping charges were subject to sales tax as a matter of law. The appellate court affirmed the trial court’s ruling. The relevant statutory language is found in the Retail- ers’ Occupation Tax Act (ROTA), 35 ILCS 120/1, et seq., and the Use Tax Act, 35 ILCS 105/1, et seq. The tax rate under the ROTA is based upon “gross receipts from sales of tangible personal property made in the course of business.” 35 ILCS 120/2-10. “Gross receipts” are defined as the “the About the Author total selling price or the amount of such sales [of tangible personal property]”. 35 ILCS 120/1. “The selling price” is, James K. Borcia is a partner with the Chicago firm of Tressler, Soderstrom, Maloney & Priess, LLP, and is active in turn, defined in both the ROTA and the Use Tax Act as in the firm’s litigation practice with an emphasis on com- “the consideration for a sale valued in money . . . and shall mercial and complex litigation. He was admitted to the bar in 1989 after he received his J.D. from Chicago-Kent Col- be determined without any deduction on account of the cost lege of Law. Mr. Borcia is a member of the Chicago and of the property sold, the cost of materials used, labor or ser- Illinois State Bar Associations, as well as the IDC and DRI. vice costs or any other expense whatsoever.” 35 ILCS 120/

60 First Quarter 2009

third party (your opponent) in the prior litigation. Counsel in the second case notes that he was not a party in the prior E-Discovery case, nor was he a party to your agreement with other counsel. Therefore, the order and agreements do not bind him. It initially appears that your new adversary may be right. There is authority for the proposition that you waived the By Peter R. Jennetten attorney-client privilege by inadvertently producing the Quinn, Johnston, Henderson & Pretorius emails in the prior litigation. One court has noted that: Peoria [U]under the most strict approach [to waiver of privileges], there is a waiver [due to inadvertent disclosure] because once disclosed, there can no longer be any expectation of confidentiality . . . . [A] careful Federal Rule of Evidence 502: reading of the Fourth Circuit’s decisions regarding Protecting Privilege after waiver of the attorney-client privilege . . . suggest [sic] that it is more inclined to adopt the strict ap- Inadvertent Disclosure proach . . . .

Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, Imagine this: you have a large products liability case in- 257-58 (D. Md. 2008). The court in Victor Stanley found that volving a severe injury pending in federal court. Counsel for the inadvertent disclosure of 165 electronic records consti- the plaintiff demands production of all electronic records tuted a waiver of the claim that those documents were privi- pertaining to the design of the product. You comply and pro- leged. duce thousands of records, including emails to and from the Illinois cases have found waiver under similar circum- design staff. The production also happens to include some stances. Dalen. v. Ozite Corp., 230 Ill. App. 3d 18, 29, 594 emails between the company’s president and outside coun- N.E.2d 1365, 1371-72 (2nd Dist. 1992) (privilege waived when sel regarding potential liability issues with the design, which counsel was allowed to review cabinet of documents con- has since been revised. Those emails are clearly attorney- taining the privileged document); but see, Dellwood v. Cargill, client privileged communications. The privileged emails were 128 F.3d 1122, (7th Cir. 1997) (finding no waiver where re- picked up by the search algorithm and produced with all the corded conversations of conspirators were played for some other documents. Reviewing the documents later, you notice of the conspirator’s attorneys in the course of an investiga- the inadvertent production. tion). Fortunately, you included a well-crafted clawback agree- (Continued on next page) ment in your Rule 16 discovery plan pursuant to Fed. R. Civ. P. 26(f)(3)(D) which was incorporated into the scheduling order. You send a letter to counsel advising her of the errone- ous production and demand a return of the documents. Coun- sel admits that she also recently noticed the privileged emails. About the Author She complies with your request and returns the documents to you. You provide her with a new set, omitting the privi- Peter R. Jennetten is a partner with the Peoria firm of leged documents. All is well. Quinn, Johnston, Henderson & Pretorius. Mr. Jennetten Months later, you (or perhaps some other attorney) have focuses his practice in Municipal Tort Liability, Civil Rights & Discrimination, Appellate Practice in State and Federal another suit arising out of the same product. This plaintiff’s Court Systems, Premises Liability, Construction Litigation, counsel asks for the same documents. Not one to make the Employment Law – Litigation, Insurance Coverage and same mistake twice, you withhold the privileged emails and Analysis Litigation, and Libel and Slander / Defamation. Mr. Jennetten earned a B.S. (cum laude, 1991) and M.S. note them in a privilege log, which is provided to counsel. (cum laude, 1993) from the University of Illinois and his J.D. (cum laude, Plaintiff’s counsel writes back demanding production of the 1996) from Georgetown University Law Center. He was also named the Illi- nois State Bar Association Young Lawyers of the Year (Downstate) in 2003 privileged emails, taking the position that the attorney-client and one of Peoria’s “40 Leaders Under 40” in 2002. privilege was waived by the disclosure of those emails to a

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E-Discovery (Continued) the documents and obtained a supporting court order within This issue has been a concern since the new rules ad- a few weeks. Id. The court relied upon the factors set forth in dressing E-discovery were adopted. The volume of electroni- FRE 502(b) and found that reasonable measures were taken cally stored information (ESI) produced in many cases greatly to protect privileged documents and to secure their return increases the likelihood that privileged documents may be and that the privilege was not waived. Following the widely inadvertently produced. Federal Rule of Evidence 502 saves cited Sedona Principles (The Sedona Principles, Second you, but only if you follow it. The court in Victor Stanley Edition (2007)) during electronic discovery is helpful in es- specifically noted that prior to the enactment of Rule 502, tablishing a privilege claim. Victor Stanley, 250 F.R.D. at the new rule could mandate a different result: “. . . Proposed 262. Federal Evidence Rule 502 would solve the problems . . . and protect against privilege waiver under circumstances similar to those presented in this case if the parties entered into a non-waiver agreement that meets the requirements of The volume of electronically stored the proposed rule, and the court, in turn, approved it.” Victor information (ESI) produced in many Stanley, 250 F.R.D. at 258 n.5. Rule 502 was signed by President Bush and became ef- cases greatly increases the likelihood fective and applicable to all pending cases on September 19, 2008. It provides that disclosure of a privileged communica- that privileged documents may be tion or work product: inadvertently produced. does not operate as a waiver in a Federal or State proceeding if: 1. the disclosure is inadvertent; 2. the holder of the privilege or protection took reasonable steps to prevent disclosure; and 3. the holder Rule 502 preserves the privileges in state as well as fed- promptly took reasonable steps to rectify the error, eral court. An inadvertent production in federal court is not a including (if applicable) following Federal Rule of waiver in a subsequent state court case. Rule 502(b), (d). An Civil Procedure 26(b)(5)(B). inadvertent production in a state court matter is not considered a waiver in a subsequent federal case unless there is a The situation described at the beginning of this column contrary state court order. Rule 502(c). The rule expressly fits this rule; so the emails of your client should remain privi- extends its reach to state courts: “this rule applies to State leged. See e.g. Alcon Mfg. Ltd. v. Apotex, Inc., 1:06-CV-1642, proceedings and to Federal court-annexed and Federal court- 2008 WL 5070465 at *3-6 (S.D. Ind. Nov. 26, 2008) (relying mandated arbitration proceedings, in the circumstances set upon Rule 502 and holding that the privilege was not waived out in the rule. And notwithstanding Rule 501, this rule ap- by inadvertent disclosure); Laethem Equipment Co. v. Deere plies even if State law provides the rule of decision.” FRE and Co., 2:05-CV-10113, 2008 WL 4997932 at *8-9 (E.D. 502(f); Laethem Equipment Co., 2008 WL 4997932 at *8 Mich. Nov. 21, 2008) (same holding). (noting that FRE 502 applied even though state law provided Courts interpreting the new rule have focused upon the the rule of decision in that case). reasonableness of the steps taken to prevent disclosure and Rule 502 was designed to maintain the attorney-client to rectify any inadvertent disclosure. The rule is not a free and work product privileges for documents that are inadvert- pass and counsel must still make reasonable efforts to main- ently produced during discovery, particularly discovery of tain privilege; but what qualifies as reasonable has changed electronically stored information. To preserve the privileges, in the electronic era. Laethem Equipment Co., 2008 WL counsel must take reasonable measures to maintain the con- 4997932 at *9. fidentiality of the records and avoid inadvertent disclosure. In Laethem, the documents were inadvertently disclosed Counsel must also take reasonable measures and act promptly when they were copied by defense counsel outside the “in- to assert the privilege once the inadvertent disclosure is dis- spect and copy” procedure set up by the parties. Plaintiff’s covered. This requires vigilance but can preserve the privi- counsel first realized the inadvertent disclosure during the leges. deposition of an expert and made an immediate objection. Counsel sent a letter the same day demanding the return of

62 First Quarter 2009

Feature Article ties of an individual; (2) a record of such impairment; or (3) being regarded as having such an impairment. 42 U.S.C. § 12102(2)(C). By: Kristin Dvorsky Tauras The original Act, however, did not define “substantially” McKenna Storer or “major.” Thereafter, the federal courts narrowed the scope Chicago of protection afforded by the ADA and limited protection for many individuals. The U.S. Supreme Court in Sutton v. United Air Lines, Inc., 527, U.S. 471, 119 S. Ct. 2139 (1999), and its companion cases, held that whether an impairment substantially limits a major life activity is to be determined with ref- Significant Changes erence to the ameliorative effects of mitigating measures. A in the Americans with few years later, the Supreme Court in Toyota Motor Manu- facturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S. Disabilities Act Ct. 681 (2002), further narrowed the ADA by holding that the terms “substantially limits” and “major life activity” had to “be interpreted strictly to create a demanding standard for In 2008, the U.S. House of Representatives approved a qualifying as disabled” and that to be substantially limited in bill that greatly expands employee protections under the performing a major life activity under the ADA, “an indi- Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, vidual must have an impairment that prevents or severely et. seq. The ADA Amendments Act of 2008 (ADA Amend- restricts the individual from doing activities that are of cen- ments Act), Pub. L. No. 110-325, 122 Stat. 3553, significantly tral importance to most people’s daily lives.” Id. at 198. Based changes the way the law treats the disabled. Effective Janu- on these decisions, lower courts have found that people with ary 1, 2009, the ADA Amendments Act increases the scope a range of substantially limiting impairments were not people of employees who are protected by the ADA and places sig- with disabilities. nificant limits on the defenses previously available to employers. Changes to the ADA In order to establish a prima facie case of disability discrimination under the ADA and ADA Amendments Act, a In direct response to these decisions and others, the ADA plaintiff must establish that: (1) he or she is an individual Amendments Act was written for the express purpose of re- with a disability, and (2) he or she is “otherwise qualified” to storing the intent and protections of the ADA by extending perform the job requirements, with or without reasonable its protections to a broader class of individuals. 42 U.S.C. § accommodation. In the past, the majority of cases dealt with 12101(b). The ADA Amendments Act not only provides in- the issue of whether an individual was disabled. Under the struction on how “disability” should be construed and proven, broadened scope of coverage of the ADA Amendments Act, but also provides broad definitions for “substantially limits” the focus rarely will be on whether the individual has a dis- and “major life activity.” ability. Instead, the focus will be on whether the individual is qualified for the job and whether there is a reasonable ac- (Continued on next page) commodation available.

A Need for Change

When the original ADA was enacted in 1990, the stated purpose of the ADA was to protect disabled Americans who were being unfairly discriminated against in the work place, About the Author based on unjustified prejudices, antiquated attitudes, or the failure to remove societal and institutional barriers concern- Kristin Dvorsy Tauras is an attorney in the Chicago firm of McKenna ing their abilities. 42 U.S.C. § 12101(a)(1)-(2). The ADA Storer. She has a civil litigation practice with a concentration in the areas defined a disability as: (1) a physical or mental impairment of employment, professional liability, appellate and commercial litigation. that substantially limits one or more of the major life activi-

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Changes in ADA (Continued) ing, thinking, communicating and working. 42 U.S.C. § 12102(a)(2)(A). The second list includes major bodily func- 1. Disability Must Be Broadly Construed tions, such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respi- The primary change to the ADA is the expansion of the ratory, circulatory, endocrine and productive functions. 42 scope of coverage. The ADA Amendments Act states that U.S.C. § 12102(a)(2)(B). Importantly, only one major life “disability” is to be given a broad construction. Contrary to activity need be limited; an individual is entitled to protec- the way “disability” had been defined by the U.S. Supreme tion under the ADA if he can do many things so long as the Court in Sutton, Toyota Motors and similar cases, the ADA individual is substantially limited in performing one major Amendments Act expressly states that the definition of dis- life activity. 42 U.S.C. § 12102(a)(4)(C). ability “shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted 2. Mitigating Measures Cannot be Considered by the terms of this Act.” See 42 U.S.C. § 12102(a)(4)(A). The findings by Congress, as set forth in Section 2 of the Mitigating measures cannot be considered. Before the ADA Amendments Act, indicate that the primary focus in ADA Amendments Act, the U.S. Supreme Court, as well as cases brought under the ADA should be on whether the “en- lower courts, had held that mitigating factors, such as the use tities covered under the ADA have complied with their obli- of medication, could be taken into consideration when deter- gations” and the question of whether an individual’s impair- mining whether the individual was disabled under the ADA. ment is a disability under the ADA “should not demand ex- See Sutton, 119 S. Ct. at 2142. Under the ADA Amendments tensive analysis . . . .” 42 U.S.C. § 12101(b)(5). Act, a determination of whether an impairment “substantially limits” a major life activity must be made without consideration of any ameliorative effects of a mitigating measures. 42 U.S.C. § 12102(a)(4)(E). The ADA Amendments Act also includes a comprehen- “Major life activity” has been broadly sive list of mitigating measures that cannot be taken into account when considering whether someone is impaired, in- defined in two non-exhaustive lists to cluding medication, medical supplies, equipment, appliances, include almost every life activity. low vision devices (excluding ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment, use of assistive technology, reasonable accommodations or aux- “Substantially limits” must be broadly interpreted also. iliary aids or services and learned behavioral or adaptive neu- The ADA Amendments Act states that the Toyota Motor stan- rological modifications. 42 U.S.C. § 12102(a)(4)(E)(i). The dard for strictly interpreting “substantially limits” has cre- ADA Amendments Act states that mitigating measures do ated an inappropriately high level of limitation necessary to not include ordinary eyeglasses or contact lenses, which obtain coverage under the ADA; and the ADA Amendments means that whether a person’s vision is substantially limited Act expressly rejects the standard. 42 U.S.C. § 12101(a)(4)- may be assessed in light of the eyeglasses. 42 U.S.C. § (7); 42 U.S.C. § 12101(b)(5)-(6). Instead, the term “substan- 12102(a)(4)(E)(ii). Nevertheless, the employer cannot use tially limits” is to be broadly interpreted to achieve the goals qualification standards, employment tests or selection crite- of the ADA. 42 U.S.C. § 12102(a)(4)(B). An impairment that ria based on an individual’s uncorrected vision unless it is is episodic or in remission is a disability if, when active, it job-related and consistent with business necessity. 42 U.S.C. would substantially limit a major life activity. 42 U.S.C. § § 12113(c). 12102(a)(4)(D). “Major life activity” has been broadly defined in two 3. Being “Regarded As” Disabled is non-exhaustive lists to include almost every life activity. The Simpler to Prove first list includes caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, Being “regarded as” disabled for individuals without a bending, speaking, breathing, learning, reading, concentrat- disability has changed. Before the ADA Amendments Act, in

64 First Quarter 2009

order prove discrimination under the “regarded as” prong, the employment position such individual holds or desires, the employee was required to show that the employer mis- and who, with or without reasonable accommodation, can takenly believed the employee had a physical impairment perform the essential functions of such position.” 29 C.F.R. that substantially limited one or more major life activities or § 1630.2(m). This definition has not changed with the ADA that the employer mistakenly believed that an actual, non- Amendments Act. limiting impairment substantially limited one or more major Essential functions are the fundamental job duties of the life activities. See Sutton, 119 S. Ct. at 2149-50. To prove employment position; the term does not include marginal “regarded as” under the ADA Amendments Act, the employee functions. 29 C.F.R. § 1630.2(n). A job function is consid- simply needs to prove an actual or perceived impairment. 42 ered essential if “the reason the position exists is to perform U.S.C. § 12102(a)(3)(A). The employee does not need to that function.” 29 C.F.R. § 1630.2(n)(2)(I). prove that the impairment was limiting in any way. 42 U.S.C. § 12102(a)(3)(A). Reasonable Accommodation Still Must Be Proven The impairment, however, cannot be transitory or mi- nor. 42 U.S.C. § 12102(a)(3)(B). A transitory impairment is The ADA Amendments Act did not change the law re- defined as an impairment with an actual or expected dura- garding reasonable accommodation. Nevertheless, now that tion of six months or less. 42 U.S.C. § 12102(a)(3)(B). In the focus in most cases will no longer be on whether an em- addition, being “regarded as” disabled will not support a claim ployee has a disability, given the broadened provisions of for failure to accommodate. 42 U.S.C. § 12201(1)(h). It will the ADA Amendments Act, cases will be focusing more on only support a claim involving other conduct that violates whether the employer was aware of the disability and whether the ADA. there was a reasonable accommodation. Under the current Seventh Circuit case law and the ADA, The Employee Still Must Be Qualified for a Position an employee has the initial duty to inform his or her employer of a disability before ADA liability may be triggered The ADA Amendments Act has not altered the require- for failure to provide a reasonable accommodation. Beck v. ment that an individual with a disability be qualified for a University of Wis. Bd. of Regents, 75 F.3d 1130, 1134 (7th position in order to have protection under the ADA. Whether Cir. 1996). The ADA requires reasonable accommodations the employee is a qualified individual with a disability is a only to “the known physical or mental limitations” of an two-part test: (1) whether he or she satisfies the prerequi- employee. 42 U.S.C. § 12112(b)(5)(A). “Once an employer’s sites for the position, and (2) whether he or she can perform responsibility to provide reasonable accommodation is trig- the essential functions of the position. Weiler v. Household gered, the employer must engage with the employee in an Fin. Corp., 101 F.3d 519, 524 (7th Cir. 1996). Under the ADA, ‘interactive process’ to determine the appropriate accommo- Congress expressly defines a “qualified individual with a dation under the circumstances.” Bombard v. Fort Wayne disability” as: Newspapers, Inc., 92 F.3d 560, 563 (7th Cir.1996). A reasonable accommodation generally involves, an individual with a disability who, with or without “[m]odifications or adjustments to the work environment, or reasonable accommodation, can perform the essen- to the manner or circumstances under which the position held tial functions of the employment position that such or desired is customarily performed, that enable a qualified individual holds or desires. For the purposes of this individual with a disability to perform the essential functions subchapter, consideration shall be given to the of that position,” 29 C.F.R. § 1630.2(o)(1)(ii), rather than employer’s judgment as to what functions of a job rearrangements of the essential functions themselves. The are essential, and if an employer has prepared a writ- “reasonable accommodation” element of the ADA imposes a ten description before advertising or interviewing duty upon an employer to engage in a flexible, interactive applicants for the job, this description shall be con- process with a disabled employee needing accommodation sidered evidence of the essential functions of the job. so that, together, they might identify the employee’s precise limitations and discuss accommodations that might enable 42 U.S.C. § 12111(8). The Federal Regulations further the employee to continue working. See 29 C.F.R. § state that a qualified individual with a disability means, “an 1630.2(o)(3). individual with a disability who satisfies the requisite skill, experience, education and other job related requirements of (Continued on next page)

65 IDC Quarterly

Changes in ADA (Continued)

Retroactivity Workers’ Compensation Report

The ADA Amendments Act is silent with respect to whether it will be retroactive. Even though the ADA Amend- By: Kevin J. Luther ments Act states that its effective date is January 1, 2009, it Heyl, Royster, Voelker & Allen may be applied retroactively. Its preamble states that its pur- Rockford pose is “to restore the intent and protection of the Americans with Disabilities Act of 1990.” In addition, the ADA Amend- ments Act states that its intent is to provide a “clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and provide broad Undocumented Alien coverage.” 42 U.S.C. § 12101(a)(1). Most likely, courts will Awarded Permanent Total interpret the ADA Amendments Act as restoring its original purpose, rather than changing the law. Therefore, employers Disability Benefits need to be aware that past conduct could be judged under the more liberal standards of the ADA Amendments Act. In Economy Packaging Company v. Illinois Workers’ Compensation Commission, No. 1-07-2947 WC (December 9, 2008), the Illinois Appellate Court held that all aliens who The ADA has always contained a are employed by contract, regardless of their immigration status, are considered “employees” within the meaning of statement that finding a reasonable the Illinois Workers’ Compensation Act and are therefore accommodation was an interactive entitled to receive Workers’ Compensation benefits, including permanent total disability benefits. In Economy Packag- process. ing, the petitioner sought benefits for injuries that she allegedly received while working for the employer. The petitioner, who was born in Mexico, admitted that she did not have the Moving Forward necessary paperwork to legally obtain employment in the United States and that when she applied for her position with What should employers do to assure that they are mini- the employer, she presented documents she had received from mizing their risk of exposure under the ADA and the ADA a source other than the government. Amendments Act? Employers need to address disabilities in On the day of the occurrence, the petitioner, who worked a more interactive process, beginning with the way they view on an assembly line, manually de-boning chicken, slipped disabled employees and potential employees. Rather than and fell. She received medical treatment for several injuries focus on whether the individual has a disability under the ADA, the employer should focus on whether the individual is qualified for the position and whether the employer can reasonably accommodate the disability. The ADA has always About the Author contained a statement that finding a reasonable accommodation was an interactive process. Assuming a disabled indi- Kevin J. Luther is a partner in the Rockford office of Heyl, vidual is qualified for a position, the best way to begin the Royster, Voelker & Allen where he concentrates his practice in areas of workers’ compensation, employer liability, employment relationship is to ask the employee what type of professional liability and general civil litigation. He also accommodation he or she needs in order to perform the job, supervises the workers’ compensation practice group in the Rockford office. Mr. Luther received his J.D. from Wash- and then work together to formulate a reasonable accommo- ington University School of Law in 1984. He is a member dation. Doing so will not avoid all lawsuits, but it will go a of the Winnebago County, Illinois State and American Bar long way toward reducing the number of claims as well as Associations, as well as the IDC. enhancing diversity of the workforce.

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from the fall and eventually underwent surgery. She obtained born citizens who cannot legally work in the United States. a permanent restriction prohibiting above-shoulder work or The appellate court reasoned that if the legislature had in- lifting more than 10 pounds. The employer could not accom- tended otherwise, it would have defined the term or modi- modate the restriction. fied it with more specific language. The court concluded, The petitioner was 60 years old and had attended school therefore, that all aliens in the service of another pursuant to in Mexico for only three years. She had not received any a contract of hire, regardless of their immigration status, are education beyond those three years. The petitioner could considered “employees” within the meaning of the Illinois speak Spanish and could not speak, read or write English. Workers’ Compensation Act and are therefore entitled to re- She did not drive an automobile. ceive Workers’ Compensation Benefits, including permanent Given the petitioner’s age, limited education and com- total disability benefits. munication skills, and her work restrictions, her vocational rehabilitation counselor opined that no stable market existed in which the petitioner was employable. The vocational rehabilitation counselor further testified that given the current circumstances, the petitioner would not be employable even The appellate court determined if she were a citizen of the United States. The employer hired a vocational rehabilitation special- that the plain meaning of “aliens” ist who determined that the petitioner, although unskilled, includes not only foreign-born citizens was employable. The rehabilitation specialist gave the opinion that the petitioner could legally work in the United States who can legally work in the United and could be gainfully employed in the current labor market. The arbitrator found that a compensable accident had States, but also includes foreign-born taken place. The arbitrator awarded permanent total disabil- citizens who cannot legally work in ity benefits finding that the petitioner was permanently, totally disabled under the “odd-lot” doctrine. See A.M.T.C. of the United States. Illinois. Inc. v. Industrial Comm’n, 77 Ill. 2d 482, 397 N.E.2d 804 (1979). The employer filed a petition for review. The Workers’ Compensation Commission affirmed and adopted the arbitrator’s decision. The Circuit Court of Cook County af- The appellate court noted that the petitioner did violate firmed the finding of permanent total disability benefits. provisions of I.R.C.A. by using false documents to obtain The employer appealed and argued that a different stan- employment with the Workers’ Compensation respondent. dard should apply when determining whether suitable em- The appellate court concluded, however, that I.R.C.A. does ployment is available to an undocumented alien, as potential not expressly preempt state laws allowing undocumented employers are barred by the Immigration Reform and Con- aliens, who sustain work-place injuries, to recover Workers’ trol Act of 1986, 8 U.S.C. 1324a, et seq. (2000) (“I.R.C.A.”), Compensation benefits, including permanent total disability from hiring undocumented aliens regardless of their physi- benefits. It also concluded that a so called “field pre-emp- cal capabilities. The employer argued that as an undocu- tion” theory does not bar an award of permanent total dis- mented alien, the petitioner is per se unemployable. ability benefits to undocumented aliens under the Workers’ The appellate court noted that the Illinois Workers’ Com- Compensation Act. pensation Act imposes liability on employers for injuries to The appellate court then considered the question as to employees arising out of and in the course of employment. whether the petitioner established that she was permanently 820 ILCS 305-2 (West 2002). “Employee” is defined as “ev- and totally disabled pursuant to the “odd-lot” doctrine. Be- ery person in the service of another under any contract of cause the Workers’ Compensation Commission made this hire . . . including aliens.” 802 ILCS 305-1(B)(2) (West 2002). “factual” determination, the appellate court noted that it is The Act does not define the term “aliens.” the function of the Workers’ Compensation Commission to The appellate court determined that the plain meaning judge the credibility of the witnesses and resolve conflicting of “aliens” includes not only foreign-born citizens who can evidence. The court concluded that the permanent total dis- legally work in the United States, but also includes foreign- (Continued on next page)

67 IDC Quarterly

Workers’ Compensation Report (Continued) time of determination. The appellate court noted that other ability finding was against the manifest weight of the evi- jurisdictions handled the issue in different ways. Yet the court dence. concluded that the overriding purpose of Workers’ Compen- sation is to compensate an employee for lost earnings result- Temporary Total Disability Benefits Disallowed ing from a work-related disability. See Freeman United Coal After Employment Termination Mining Co. v. Industrial Comm’n, 99 Ill. 2d 487,496 (1984).

In Interstate Scaffolding, Inc. v. The Illinois Workers’ Compensation Comm’n, ___ Ill. App. 3d ___, 896 N.E.2d 1132 (3rd Dist. 2008), the Illinois Appellate Court, Third Dis- The appellate court determined that trict denied an employee temporary total disability benefits allowing an employee to collect where that employee had been removed from the work force as a result of volitional conduct (defacing company property), temporary total disability benefits from unrelated to the employee’s concurrent workplace injury. In Interstate Scaffolding, the petitioner was injured during the his employer after he was removed course of his employment and was eventually returned to light-work duties. The employer accommodated the restric- from the work force as a result of tions, but the petitioner was later terminated from employ- volitional conduct, unrelated to his ment for defacing company property. At issue was whether the petitioner was entitled to collect temporary total disabil- injury, would not advance the goal of ity benefits after he had voluntarily removed himself from the work force for reasons unrelated to his injury. compensating an employee for a The petitioner testified that after he returned to modi- work-related injury. fied-work duties, he had written religious inscriptions on the walls and shelves in the storage room on the employer’s premises. It also came to light at this time that, in addition to defacing company property, the petitioner had accepted wage The appellate court determined that allowing an em- “overpayments.” As a result of these in infractions, the ployee to collect temporary total disability benefits from his petitioner’s employment was terminated. employer after he was removed from the work force as a The arbitrator declined to award TTD benefits after the result of volitional conduct, unrelated to his injury, would employment dismissal. The Workers’ Compensation Com- not advance the goal of compensating an employee for a mission on review found that the petitioner was entitled to work-related injury. Instead, it would provide a windfall by TTD for the reason that the petitioner’s medical condition continuing to compensate the employee despite the fact that had not stabilized as of the date of the arbitration hearing. the cause of the lost earnings following the employee’s de- The Circuit Court of Will County affirmed, and the respon- parture is unrelated to the injury. The appellate court deter- dent appealed. mined that the petitioner had tacitly conceded that he had On the issue of TTD benefits, the appellate court noted been removed from the work force as a result of volitional that the dispositive question was whether the petitioner’s acts unrelated to his injury. The appellate court found no condition had stabilized, i.e., whether the petitioner had evidence which would indicate that the petitioner had been reached maximum medical improvement. See Land & Lakes, terminated to relieve the respondent from payment of tem- Co. v. Industrial Comm’n, 359 Ill. App. 3d 582, 594, 834 porary total disability benefits. Simply stated, but for the N.E.2d 583 (2nd Dist. 2005). Once an injured employee has petitioner’s conduct in defacing the respondent’s property, reached a maximum level of medical improvement, the dis- the petitioner would have continued receiving temporary total abling condition becomes permanent and he or she is no longer disability benefits until his condition had stabilized. eligible for temporary total disability benefits. Nascote In- The Workers’ Compensation Commission decision was dustries v. Industrial Commission, 353 Ill. App. 3d 1067, 1072, reversed. This favorable decision from the Illinois Appellate 820 N.E.2d 570 (5th Dist. 2004). Court, Third District underscores the need for respondents to The appellate court agreed with the Workers’ Compen- continue to document employment infractions and violations sation finding that the petitioner had not reached MMI at the even during the pendency of a Workers’ Compensation claim.

68 First Quarter 2009

On June 23, 1992, Wildey and Paulsen met again at Paulsen’s office. Wildey completed a client interview sheet Professional Liability on that day. Paulsen later testified that at this meeting, she informed Wildey that the letter which had been sent to Springs did not comply with the notice requirements of the Act. How- ever, Wildey testified that Paulsen told her that the letter was By: Martin J. O’Hara “fine.” 894 N.E.2d at 866. It was stipulated by the parties Much Shelist Denenberg Ament & that proper notice to Springs had to be sent by July 28, 1992. Rubenstein, P.C. No corrected letter was sent to Springs prior to July 28, 1992. Chicago Rather than send a corrected letter, Paulsen proceeded pursuant to the defective letter. Paulsen met with Wildey on multiple occasions to discuss strategy. Paulsen spent time drafting a complaint against Springs. Paulsen also prepared a retainer letter setting forth that Wildey would pay Paulsen How a Broken Promise of $1,500 for her representation of Wildey in the action against Marriage Resulted in a $100 Springs. In October 1992, Wildey filed a complaint under the Act Legal Malpractice Verdict against Springs in state court. Paulsen was identified in the complaint as Wildey’s counsel. Springs removed the case to federal court. Thereafter, the case proceeded to a jury trial, Lawyers who spend time reading appellate court deci- resulting in a verdict for Wildey in the amount of $178,000. sions know that oftentimes strange fact patterns give rise to The trial judge remitted the verdict to $118,000. However, notable decisions in certain areas of the law. That is very true the Seventh Circuit Court of Appeals subsequently reversed with respect to the recent decision of the Illinois Appellate the verdict, finding that Wildey’s pre-suit letter did not com- Court First District in Wildey v. Paulsen, __ Ill. App. 3d __, ply with the Act because it failed to include the date of the 894 N.E.2d 862 (1st Dist. 2008). While the fact pattern is engagement. Wildey v. Springs, 47 F.3d 1475 (7th Cir. 1995). truly bizarre, there are a number of important holdings in Following the Seventh Circuit decision, Wildey filed a Wildey v. Paulsen that may be used by attorneys who defend claim for legal malpractice against Paulsen. Wildey sought legal malpractice actions. to recover the verdict she had been awarded by the jury, or In Wildey v. Paulsen, the plaintiff, Sharon Wildey, an alternatively the amount of the verdict following the remit- attorney licensed to practice law in Illinois, was engaged to ter. Wildey also sought to recover damages for pain and suf- marry Richard Springs. On April 27, 1992, Springs broke fering. the engagement. Wildey decided to file suit against Springs Paulsen asserted that, under the “case within the case” pursuant to the Illinois Breach of Promise Act, 740 ILCS 15/ doctrine, Wildey was limited to recovering actual damages 1 (hereinafter the “Act”). The Act permits a person to re- (Continued on next page) cover actual damages sustained as a result of a breach by another of the promise to marry. However, recovery under the Act is conditioned upon the aggrieved party providing notice of an intent to sue and the notice including the date on About the Author which the parties became engaged. Wildey approached the defendant, Mary Paulsen, regard- Martin J. O’Hara, a Principal in Much Shelist Denenberg Ament & Rubenstein, P.C.’s Litigation & Dispute Resolu- ing her claim against Springs. Paulsen was a licensed attor- tion practice group, concentrates his practice on commer- ney in Illinois, and a friend of Wildey. Wildey and Paulsen cial litigation and the defense of professionals in malprac- met to discuss the matter. Thereafter, on June 12, 1992, Wildey tice actions. Mr. O’Hara earned his B.A. in 1990 from Illi- nois State University and his J.D. in 1995 from the John drafted and sent a letter to Springs, indicating her intent to Marshall Law School. He is a member of the Illinois State file suit against him under the Act. However, Wildey’s letter Bar Association, the Chicago Bar Association, the Defense Research Institute, the Illinois Association of Defense Trial Counsel and the Society of Trial Law- did not include the date that the parties became engaged. On yers. While in law school, he served on the John Marshall Law Review, and June 18, 1992, Wildey faxed to Paulsen a copy of the letter won a Graduate School Scholarship Award and the Dean Herzog Scholarship. that she sent to Springs.

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Professional Liability (Continued) garding damages. The court initially rejected Wildey’s argu- that would have been recoverable against Springs under the ment that she was entitled to the amount of the damages Act. Paulsen further argued that no true attorney-client rela- awarded in the federal trial. Wildey had argued that the fed- tionship existed between her and Wildey, because she be- eral lawsuit constituted the underlying lawsuit for purposes came involved merely to make Springs believe that Wildey of the “case within a case” rule. In rejecting this assertion, was represented by counsel. Paulsen argued that, in reality, the court held that the judgment in the federal case did not Wildey was representing herself, as indicated by the fact that constitute damages because that judgment was reversed on Wildey drafted the pre-suit letter to Springs. appeal. “Once a judgment is reversed on appeal, it no longer Following a bench trial, the trial court disagreed with exists.” Id. at 871. Paulsen with regard to the question of whether an attorney- Rather, the appellate court held that the only actual dam- client relationship existed. The trial court found that suffi- ages Wildey had established was the $100.00 that she in- cient evidence existed that an attorney-client relationship curred in altering the wedding dress. Although Wildey ar- existed prior to July 28, 1992, the last day to correct the let- gued that she suffered pain and suffering as a result of Springs ter to Springs. However, the trial court agreed that Wildey breaking the engagement, such damages are not recoverable was limited to recovering the actual damages that she could under the Act. Because they could not be recovered under have recovered under the Act. The trial court found that the the Act, they therefore would not be recoverable in a legal only evidence of actual damages presented by Wildey was malpractice action against Paulsen. Accordingly, the court $100.00 that she spent in altering her wedding dress. Ac- affirmed the $100.00 judgment in favor of Wildey. cordingly, the trial court found for Wildey on her legal mal- A couple of important points can be taken from Wildey v practice claim and awarded her $100.00. Paulson. First, an attorney cannot avoid malpractice liability by Wildey appealed, and Paulsen cross-appealed. The ap- trying to deny or limit representation after representation actu- pellate court initially considered Paulsen’s contention that ally occurred. Rather, if an attorney agrees to represent a client, no attorney-client relationship existed. The court stated that the attorney is obligated to act within the appropriate standard to form an attorney-client relationship, “[t]he attorney must of care regardless of the extent of the representation. While indicate an acceptance of the authority to work on behalf of Paulsen may have believed that she did not have responsibility the client, and the client must authorize the attorney to work for Wildey’s claim against Springs because of her limited in- on his behalf.” Wildey v. Paulsen, supra, 894 N.E.2d 862, volvement, the fact that she became counsel to Wildey with re- 868. The court then agreed with the trial court’s finding that spect to the claim created a duty on her part to make certain that an attorney-client relationship existed where: (1) prior to July the claim was prosecuted in a proper manner. 28, 1992, Paulsen and Wildey met numerous times to dis- Second, Wildey v. Paulson again emphasizes the require- cuss the case; (2) Wildey’s complaint identified Paulsen as ment of actual damages in a legal malpractice claim. It is her attorney; and (3) Paulsen billed Wildey 1.5 hours for work critical that attorneys who defend legal malpractice claims on the complaint. focus on what damages could have been recovered in the The court rejected Paulsen’s contention that her desig- underlying litigation. Plaintiffs’ attorneys often will attempt nation as Wildey’s counsel was merely a ruse to get Springs’ to enlarge the scope of damages beyond what are recover- attention. The court likewise rejected Paulsen’s argument that able. Defense counsel must always remember that the require- Wildey’s failure to pay Paulsen was relevant to the question ment of actual damages is one of the most important ele- of whether an attorney-client relationship existed. Paulsen’s ments of the claim. Focusing on that element from the outset retainer agreement did not limit her representation of Wildey of the litigation can be crucial to the defense of many legal in any way. Furthermore, the court held that even if Paulsen malpractice actions. somehow limited her representation of Wildey, she was nonetheless required to provide competent representation. By not correcting the pre-suit letter, Paulsen failed to provide competent representation. The appellate court thus held, “[w]e believe that a reasonable attorney that continued to work on a case which he or she knows to have a defective notice would have cured the defect prior to the complaint being filed.” Id. at 869. However, the court agreed with Paulsen’s assertions re-

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Feature Article (1965), to the present. That discussion is a compelling expo- sition of the common law process. It commences with funda- By: David B. Mueller and Jennifer L. Wolfe mental strict liability principles and progresses through the Cassidy & Mueller signal decisions which have shaped the law in design defect Peoria cases, thereby permitting an understanding of where the law is now and how it got there. The decision in Mikolajczyk v. Ford Motor Co. also lays to rest a number of contentions which have vexed the courts for years. These include whether strict liability requires a Mikolajczyk v. product which is “unreasonably dangerous” or turns upon a condition which renders the product “not reasonably safe.” Ford Motor Company The opinion also resolves the question of whether there is a A Synthesis of Approaches shift in the burden of going forward with the evidence under the risk-utility test where a plaintiff is able to prove that a in Design Defect Cases condition of the product was a proximate cause of his injury. Finally, the court decides how much of the Restatement (Third) of Torts it is willing to incorporate into Illinois law. Introduction This article parallels the evolutionary analysis of Mikolajczyk v. Ford Motor Co. in discussing the theoretical In recent years the Illinois Supreme Court has been con- underpinnings of product liability law. In doing so it points fronted by a series of product liability cases in which it has out the doctrinal conflicts which the court considers and re- been called upon to apply the consumer expectation rule, the solves in reaching its watershed result. risk-utility doctrine or both in determining whether the design of a product made it unreasonably dangerous. In some it (Continued on next page) has held that neither applies. Sollami v. Eaton, 201 Ill. 2d 1, 772 N.E.2d 215 (2002), and Lamkin v. Towner, 138 Ill. 2d 510, 563 N.E.2d 449 (1990). Other cases have supported recovery under both concepts. Hansen v. Baxter Healthcare About the Authors Corp., 198 Ill. 2d 420, 764 N.E.2d 35 (2002). However, for the most part it has been an either/or proposition. Anderson David B. Mueller is a partner in the Peoria firm of Cassidy v. Hyster Co., 74 Ill. 2d 364, 385 N.E.2d 690 (1979), and & Mueller. His practice is concentrated in the areas of products liability, construction injury litigation, and insurance Palmer v. Avco Distrib. Corp., 82 Ill. 2d 211, 412 N.E.2d coverage. He received his undergraduate degree from the 959 (1980). That is to say, either the consumer expectation University of Oklahoma and graduated from the Univer- sity of Michigan Law School in 1966. He is a past co-chair test or the risk-utility approach is applied and therefore the of the Supreme Court Committee to revise the rules of dis- other is not considered. Paradoxically, plaintiffs prefer to use covery, 1983-1993 and presently serves as an advisory member of the Discovery Rules Committee of the Illinois Judicial Confer- consumer expectation in cases where the product is complex ence. He was member of the Illinois Supreme Court Committee on jury in- and risk-utility where the product is simple. Conversely, the structions in civil cases and participated in drafting the products liability por- defendant wants a simple approach for simple products and tions of the 1995 Tort Reform Act. He is the author of a number of articles regarding procedural and substantive aspects of civil litigation and lectures a complex approach for complex products. frequently on those subjects. In Mikolajczyk v. Ford Motor Co., No. 104983, 2008 WL 4603565 (Ill. Oct. 17, 2008), the Illinois Supreme Court rejected the either/or menu approach. Regardless of the theory Jennifer L. Wolfe focuses her practice in civil defense in selected by the plaintiff, the defendant is allowed to try its federal and state court and workers compensation. Prior to case based upon the other. Both parties are then entitled to an joining Cassidy & Mueller as an associate in February 2005, Ms. Wolfe was a staff attorney for a non-profit legal aid integrated instruction or instructions which define the ele- clinic. She also had prior experience summarizing a high ments of the case based upon a combination of the two con- volume of case law for a major legal research provider. She graduated with Department Distinction from the Uni- cepts. In reaching this synthesis the court discussed the his- versity of Illinois in 1996, and Magna Cum Laude from tory and evolution of product liability law in Illinois from Northern Illinois University College of Law in 1999. Suvada v. White Motor Co., 32 Ill. 2d 612, 210 N.E.2d 182

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Mikolajczyk v. Ford Motor Company (Continued) Of the three, the most difficult to fit within the consumer expectation test is the design defect case. From the plaintiff’s The Origin and Evolution perspective, the consumer expectation test would seriously of Strict Product Liability Law in Illinois circumscribe recovery in cases where the potential for injury is self-evident from the nature of the product. In those cases Overview of the Problem the apparent hazard would always align with the consumer’s reasonable expectations regarding its use. Simply stated, a The evolution of Illinois product liability law in design consuming plaintiff could not claim surprise when he is in- defect cases from the single consumer expectation standard jured by an open and obvious hazard which is inherent in the to a blended risk/utility or risk/benefit rule has been gradual nature and function of the product. The consumer expecta- and incremental. Strict liability had its genesis in the Suvada tion test created equivalent problems for manufacturers and decision. Suvada relied upon Section 402A of the Restate- vendors in defending against concealed perils in complex ment (Second) of Torts, which recognized a manufacturer or products. In those cases an injured plaintiff is easily able to supplier’s liability for damages which were caused by the demonstrate surprise that a seemingly innocuous product unreasonably dangerous condition of a product. That term caused his injury. has generally been defined as being unsafe when used in a reasonably foreseeable manner considering the nature and function of the product. Winnett v. Winnett, 57 Ill. 2d 7, 310 N.E.2d 1 (1974), and Dunham v. Vaughan & Bushnell Mfg. Co., 42 Ill. 2d 339, 342, 247 N.E.2d 401 (1969). In turn, a Problems arise when one side wants product was deemed to be “unsafe” within that definition to apply the “consumer expectation when it was “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, test” while the other asserts risk/utility. with the ordinary knowledge common to the community as to its characteristics.” Lamkin v. Towner, 138 Ill. 2d 510, 528, Are they equally available alternatives, 563 N.E.2d 449, 457 (1990); see also Hunt v. Blasius, 74 Ill. in which case the plaintiff has his 2d 203, 211-12, 384 N.E.2d 368, 372 (1978), and Restate- ment (Second) of Torts Section 402A, comment i. Parallel- choice and prevails? ing Section 402A, Pattern Jury Instruction 400.06 provides:

400.06. When I use the expression “unreasonably dangerous” in these instructions, I mean unsafe when put to a use that is reasonably foreseeable consider- These antipodal problems caused plaintiffs and defen- ing the nature and function of the [product, e.g. ham- dants to look for an alternative standard upon which to prove mer]. and defend product design cases. The result was the risk/ utility or risk/benefit rule which evaluates a product’s safety Illinois Pattern Jury Instructions, 2006 Ed. 400.06. in the context of: (1) conformity with industry design standards; (2) compliance with governmental design criteria, and Consistent with that instruction, it is well-recognized that (3) the existence and feasibility of alternative designs which a plaintiff in a strict liability case must plead and prove that: were available at the time it was manufactured. Anderson v. (1) he was injured by a condition of the product; (2) the con- Hyster Co. Of these, the availability and feasibility of alter- dition was unreasonably dangerous; and (3) the condition native designs is by far the most litigated component, and existed at the time the product left the manufacturer’s or that by which risk-utility or risk benefit is defined. Plaintiffs supplier’s control. Sollami, 201 Ill. 2d 1, 7. There are three prefer alternative designs which would have avoided the risk varieties of actionable conditions: (1) those which result from in question. Defendants counter that the suggested alterna- the manufacturing process, known as manufacturing defects; tives: (1) would not have prevented the injury; (2) would (2) defects in the design of the product, and (3) dangers which have created other hazards, or (3) would have eliminated the arise from a lack of warnings or inadequate instructions. Id. benefit or utility of the product by increasing its cost, com- at 7. promising its practicability or both. Kerns v. Engelke, 76 Ill.

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2d 154, 162-63, 390 N.E.2d 859, 864 (1979). Conflicting tal elements which are required to show that an alternative evidence on both sides requires the triers of fact to balance design is feasible by approving the following instruction: and compare the risks and benefits of the existing design to those of the alternative design. There is no duty upon the manufacturer of the for- The risk benefit rule cuts both ways. It helps plaintiffs in age blower to manufacture the product with a dif- cases where the hazard is obvious and favors defendants ferent design, if the different design is not feasible. where a product’s potential for injury is concealed. Simply Feasibility includes not only elements of economy, stated, plaintiffs want to apply the consumer expectation test effectiveness and practicality, but also technologi- to complex products and the risk benefit rule to simple prod- cal possibilities under the state of the manufactur- ucts. Defendants argue that the risk benefit rule is required ing art at the time the product was produced. to test the safety of complex products but simple products should be judged by consumer expectations. Kerns v. Engelke, 76 Ill. 2d at 162-63. In Palmer v. Avco Problems arise when one side wants to apply the “con- Distrib. Corp., 82 Ill. 2d 211, 412 N.E.2d 959 (1980), the sumer expectation test” while the other asserts risk/utility. court recognized the availability of both the consumer ex- Are they equally available alternatives, in which case the pectation rule and the risk/utility concept as alternative means plaintiff has his choice and prevails? Historically, that would of proving that a product was unreasonably dangerous due appear more likely as a plaintiff generally has the right to to a design defect. The court stated that “the unreasonable chose, formulate and prove his claim. Barbara’s Sales, Inc. danger” of a product could be proved in two ways: first, by v. Intel Corp., 227 Ill. 2d 45, 59, 879 N.E.2d 910, 919 (2007); the customary consumer expectation method; and second, Reed v. Wal-Mart Stores, Inc., 298 Ill. App. 3d 712, 717-18, by “introducing evidence that the [product] could have been 700 N.E.2d 212, 215-16 (4th Dist. 1998). On the other hand, designed to prevent a foreseeable harm without hindering its a defendant also has the right to assert any theory which would function or increasing its price…..” defeat a claim. Dillon v. Evanston Hosp., 199 Ill. 2d 483, The risk/benefit approach to design defects had little 505, 771 N.E.2d 357, 371 (2002), and Snelson v. Kamm, 204 impact until ten years later, when it was considered in Lamkin Ill. 2d 1, 27, 787 N.E.2d 796, 810 (2003). The conflict be- v. Towner. There the court applied both the consumer expec- tween those interests shaped the development of product li- tation and risk/benefit analyses to the claim that ordinary ability law in design cases from the time that the risk-utility window screens were “unreasonably dangerous” because they rule was first recognized until it was resolved in Mikolajczyk were not “child-proof.” The court held as a matter of law v. Ford Motor Co. that the purpose of window screens is to admit light and air, a use which is commonly understood by the general public. The Gathering Storm Moreover, it specifically found that the plaintiffs had failed to prove how the “window screens’ design could have been (1979-2002) altered to create a safer screen . . . or any evidence of the form or feasibility of the alternative screen design.” The consumer expectation test remained the sole stan- The opinion in Lamkin is also significant for its subordi- dard for judging whether a product was unreasonably dan- nation of “risk/benefit” concept to common sense, i.e. fall- gerous until 1979. That year the supreme court decided Ander- ing through a lightweight screen. The court made two impor- son v. Hyster Co., in which it held that a plaintiff may prove tant observations. First, it explained that “[a] non-defective that a design defect made a product unreasonably dangerous product that presents a danger that the average consumer “by evidence of the availability and feasibility of alternative would recognize does not give rise to strict liability.” Lamkin, designs at the time of its manufacture, or that the design did 138 Ill. 2d 510, 528. Second, the court noted that “[v]irtually not conform with design standards of the industry, design any manufactured product can cause or be a proximate cause guidelines provided by an authoritative voluntary associa- of injury if put the certain uses or misuses [citation omitted], tion, or design criteria set by legislation or governmental regu- but strict liability applies only when the product is ‘danger- lation.” Apart from non-conformity to existing standards, the ous to an extent beyond that which would be contemplated court recognized the evidentiary significance of an alterna- by the ordinary [person]..., with the ordinary knowledge com- tive design or designs which would eliminate the danger mon to the community as to its characteristics.’” Id. at 529- which caused the injury. Anderson was followed the same 30 (citations omitted). year by Kerns, in which the court recognized the fundamen- (Continued on next page)

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Mikolajczyk v. Ford Motor Company (Continued) ■ Whether the consumer expectation and risk/utility tests Nonetheless, the risk/utility concept remained viable, are different legal theories or are simply alternative meth- reaching its critical mass in Hansen v. Baxter Healthcare ods of proof for the same theory. ■ Corp., 198 Ill. 2d 420, 764 N.E.2d 35 (2002). There the court Whether a plaintiff is entitled to control the proof in a discussed it in the context of friction-fit and Luer-lock IV design case which has components of both standards. ■ line connectors. The latter was a marketed alternative to the Whether both standards can be applied in the same case. ■ former which failed. Thus, the court was able to readily ap- Whether the consumer expectation test controls in cases ply the risk/benefit theory to the product, despite common where the product is simple and the potential for injury knowledge in the medical profession that friction-fit connec- is patent. ■ tors were more likely to disconnect than those with the Luer- Whether the risk/utility standard has subsumed the con- lock.1 sumer expectation rule in product design cases which Hansen is significant for its recognition that the consumer involve complex products. ■ expectation and risk/benefit concepts are alternative means The extent to which Illinois is going to follow Section of proving a defective design. In other words, the harm which 2(b) of the Restatement (Third) of Torts, which elimi- resulted may be within the consumer’s reasonable expecta- nates the consumer expectation concept as an alterna- tion but nonetheless the product may be actionable because tive basis for liability in product design cases. In doing a safer design was feasible. In discussing the risk/benefit also the Restatement relies solely on risk-utility consider- ternative, the Hansen court specifically adopted the follow- ations stating: ing language from Lamkin: A product is defective when, at the time of sale A plaintiff may demonstrate that a product is defec- or distribution, it contains a manufacturing de- tive in design, so as to subject a retailer and a manu- fect, is defective in design, or is defective be- facturer to strict liability for resulting injuries, in one cause of inadequate instructions or warnings. A of two ways: . . . (2) by introducing evidence that product: . . . the product’s design proximately caused his injury and the defendant fails to prove that on balance the (b) is defective in design when the foreseeable risks of benefits of the challenged design outweigh the risk harm posed by the product could have been reduced of danger inherent in such designs. or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a pre- Hansen, 198 Ill. 2d at 433. (Italics supplied).The Hansen decessor in the commercial chain of distribution, and court also specifically reaffirmed its reasoning in Kerns , that the omission of the alternative design renders the a design defect may be proved “by presenting evidence of an product not reasonably safe; . . . . alternative design that would have prevented the injury and was feasible in terms of cost, practicality and technological Adoption of the Restatement’s exclusive standard would possibility.” Hansen, 198 Ill. 2d at 436. inhibit plaintiffs and favor defendants in complex product Hansen was a watershed decision which set the stage cases. On the other hand, elimination of consumer expecta- for the ensuing conflict between the consumer expectation tion as a defense in simple product cases would benefit plain- test and the risk/utility standard. It raised the following is- tiffs. sues which were hotly debated and finally decided in the tril- ogy of cases which culminated in Mikolajczyk v. Ford Motor Battle is Joined Co. Those issues are: Blue v. Environmental Engineering, ■ Whether the defining standard for a defective product is Calles v. Scripto-Tokai and Mikolajczyk v.Ford Motor Co. an “unreasonably dangerous” condition or a condition which renders it “not reasonably safe.” Following Hansen v. Baxter Healthcare Corp., it was ■ Whether Pattern Jury Instruction 400.06 is proper in evident that a plaintiff in a design defect case could prevail product liability design cases which are tried on a risk/ by proving that the contested product was unreasonably dan- utility basis. gerous under either the consumer expectation or risk-utility test. Moreover, those were apparently alternative theories

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from which a plaintiff could chose, thereby controlling the analysis, without objection from the concurring justices, in- proof in a case. Resisting those assumptions, manufacturers cluded rejection of the premise that the burden of going for- and suppliers argued that each standard had a separate and ward with the evidence shifts in a risk-utility case once the distinct application, depending upon the nature of the prod- plaintiff proves that his injury was proximately caused by a uct. Simple products were to be tested by consumer expecta- condition of the product. The plurality stated that in a design tions, whereas complex products were to be judged under defect case a plaintiff must introduce evidence of a techno- the risk-utility standard. These conflicting views, and the strict logically feasible and practical alternative design that would liability concepts which they embody, were the subject of have reduced or prevented the harm. Once that showing is Blue v. Environmental Engineering, 215 Ill. 2d 78, 828 N.E.2d made, the question of whether the product was unreasonably 1128 (2005), Calles v. Scripto-Tokai, 224 Ill. 2d 247, 864 dangerous because of its design is a question for the trier of N.E.2d 249 (2007) and Mikolajczyk v. Ford Motor Co.. fact. Blue, 215 Ill. 2d at 100. Nor did the court in Blue reject the consumer expecta- Blue v. Environmental Engineering tion test as an alternative means of proving a design defect. Therefore, while Blue gave intimations of the court’s think- In Blue the plaintiff’s strict liability claim was barred by ing regarding the use of consumer expectation and risk-util- the statute of repose, leaving only a negligence action. His ity concepts in strict liability cases, the precedential effect of leg was crushed when, without stopping the machine, Blue that reasoning awaited subsequent decisions. stuck it into a moving compactor to “push refuse down”. He failed to extricate the limb and it was pulled into the com- Calles v. Scripto-Tokai pactor where it was “thereafter hit by the ram approximately three times, resulting in a broken pelvis, leg and foot.” In Calles v. Scripto-Tokai Corp, the court directly ad- Obviously, Blue understood the potential for injury in dressed the use of both consumer expectation and risk-util- sticking his leg into an operating compactor. Thus, the peril ity tests in design defect cases involving “simple products.” was not only “open and obvious” but understood by the claim- In doing so it defined the term “simple product” and specifi- ant. Nonetheless, he received a verdict in excess of cally approved application of the risk-utility test to those prod- $1,000,000, which was reduced to $762,000 by his contribu- ucts, even in instances where there was no legal liability un- tory negligence. However, judgment was entered for the de- der the consumer expectation standard. fendant based upon the jury’s affirmative response to the fol- The product in Calles was an Aim N Flame utility lighter lowing special interrogatory: which was manufactured and distributed by Scripto. It was ignited by pulling a trigger after an “ON/OFF” switch was Was the risk of injury by sticking a foot over or slid to the on position. The lighter was purchased by an adult, through a gate into a moving compactor open and but was found by the purchaser’s three-year-old daughter, obvious? who used it to start a fire which resulted in her sister’s death. A complaint was filed alleging that the Aim N Flame was In reversing, the appellate court found that “open and defectively designed and unreasonably dangerous because it obvious” is not a defense in a negligence case where the plain- did not contain a child-resistant safety device. The pleading tiff claims a “defective design.” Instead, as with strict liabil- further alleged that Scripto was negligent in the same respects. ity, the court held that a claimant is entitled to proceed on the Scripto moved for summary judgment based upon the basis of “risk-utility” which supersedes the “open and obvi- consumer expectation test. It contended that the product was ous doctrine,” and further requires proof by the defendant “simple” and performed within the ordinary expectations that the challenged design’s benefits outweighed the design’s which a consumer would have for a product of that type. The inherent risk of danger. Blue v. Envtl. Eng’g Inc., 345 Ill. defendant also sought summary judgment on the negligence App. 3d 455, 803 N.E.2d 187 (1st. Dist., 2003). claim because the potential for a fire related injury from the The Illinois Supreme Court accepted the case, and de- Aim N Flame was open and obvious. The plaintiff contended cided in a plurality opinion that the risk-utility test did not that safety of the lighter should be judged by the risk-utility apply to the plaintiff’s negligent design claim. However, in test, and in any event that a reasonable consumer would not reaching that decision the court considered the risk-utility expect that the Aim N Flame would be operated by a three rule as it is applied in strict liability cases, including a dis- year old child. Interwoven in these contentions were disagree- cussion of Section 2 of the Restatement (Third) of Torts. That (Continued on next page)

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Mikolajczyk v. Ford Motor Company (Continued) In affirming, the court first analyzed and used a purely ments regarding the definition of the so-called “simple prod- objective standard to define the consumer expectation test, uct,” the extent to which the “simple product” rule applied, stating that the test was what an average reasonable consumer and the role of “open and obvious” hazards in both strict would expect from the specific product. The court rejected liability and negligence cases. the implications of a subjective rule which would turn on the In support of its motion, Scripto offered the deposition purchaser’s knowledge and anticipations. This distinction testimony of the decedent’s mother, in which she admitted between the actual buyer’s subjective understanding and that she was aware of the risks and dangers presented by knowledge which would be objectively imputed to a reason- lighters in the hands of children. She also testified that she able consumer has profound implications in distinguishing kept the Aim N Flame “on the top shelf of her kitchen cabi- the consumer expectation test from the so-called “open and net” because she was aware of the danger. The plaintiff coun- obvious” defense. The former focuses upon the expectations tered with affidavits from a series of experts to the effect that of the ordinary purchaser while the latter considers what a child resistant safety devices were available and could have reasonable manufacturer would anticipate from the average been economically made a part of the lighter at the time it user. was manufactured. One expert opined that had the suggested The Calles court held that in order to prevail under the safety device been incorporated into the product as a part of consumer expectation test a plaintiff must prove that the prod- its original design “the cost would have been negligible.” uct failed to perform as an ordinary customer would expect when used in an intended or reasonably foreseeable manner. From that definition it concluded with respect to the Aim N Flame that “the ordinary consumer would expect that, when the trigger is pulled, a flame would be produced.” Calles v. The Calles court held that in order Scripto-Tokai Corp., 224 Ill. 2d at 257. It also determined that the ordinary consumer of a lighter would be an adult. to prevail under the consumer Finally, it concluded that an adult purchaser of the product would expect that it would produce a flame when used by a expectation test a plaintiff must prove child. Therefore, the court held: that the product failed to perform as Under the facts of this case, the Aim N Flame per- an ordinary customer would expect formed as an ordinary consumer would expect – it produced a flame when used in a reasonably fore- when used in an intended or seeable manner, i.e., by a child. This leads to the reasonably foreseeable manner. inescapable conclusion that the ordinary consumer’s expectations were fulfilled. In other words, the Aim N Flame did not fail to perform as an ordinary consumer would expect when used in a reasonably foreseeable manner. Thus, as a matter of law, no fact The trial court entered summary judgment in favor of finder could conclude that the Aim N Flame was Scripto and against the plaintiff. It found that all claims must unreasonably dangerous under the consumer expec- fall because these defendants “neither owed nor breached tation test. Therefore, Calles cannot prevail under any duty imposed upon them by law.” The appellate court this theory. reversed, holding that the lighter “does not qualify as the kind of especially simple device for which the result of risk- Calles, 224 Ill. 2d at 258-59. utility balancing is too obvious for trial.” Calles v. Scripto- Tokai Corp., 358 Ill. App. 3d 975, 983, 832 N.E.2d 409, 416 The court then went on to consider application of the (1st Dist. 2005). It also reversed the summary judgment which risk-utility test which it defined in the following manner: had been entered in favor of Scripto on the negligent design claims. The supreme court accepted the case and in doing so Under the risk-utility test, a plaintiff may prevail in undertook to evaluate the so-called “simple product” excep- a strict liability design-defect case if he or she dem- tion to the risk-utility standard. onstrates that the magnitude of the danger outweighs

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the utility of the products as designed.… Stated dif- that potential exposure for damages drives a manufacturer’s ferently, “[t]he utility of the design must therefore consideration of alternative designs. In that respect the opin- be weighed against the risk of harm created” and ion states: “[i]f the likelihood and gravity of harm outweighs the benefits and utilities of the product, the product Policy reasons also support rejection of a per se rule is unreasonably dangerous.” except in simple products with open and obvious dangers from analysis under the risk-utility test. Calles, 224 Ill. 2d at 259 (citations omitted). Adoption of such a rule would essentially absolve manufacturers from liability in certain situations even Scripto argued that the risk-utility test did not apply be- though there may be a reasonable and feasible alter- cause of the “simple product” exception to that rule, relying native design available that would make a product on Scoby v. Vulcan-Heart Corp., 211 Ill. App. 3d 106, 569 safer, but which the manufacturer declines to incor- N.E.2d 1147 (4th Dist. 1991). There a restaurant kitchen porate because it knows it will not be held liable. employee slipped and fell, causing his arm to become sub- This would discourage product improvements that merged in hot oil which was contained in a deep fat fryer. He could easily and cost-effectively alleviate the dan- sued the manufacturer of the fryer on a design defect basis, gers of a product…. relying upon the risk-utility test. The appellate court rejected application of the risk-utility test to the deep fat fryer on the Calles, 224 Ill. 2d at 262-63 (emphasis supplied). following grounds: (1) the risk of injury was open and obvious and (2) the simple nature of the mechanism, i.e., boiling Armed with the rationale that product liability law has oil in an open container. Thereafter, a number of courts con- as its goal the design of ever-safer products, the Calles court sidered the simple product exception to the risk-utility test in recognized that the risk-utility test applies to even the sim- the context of various products, with some applying the ex- plest products which have self-evident hazards. In that re- ception while others rejected it. Compare, Bates v. Richland gard the opinion recognized a number of factors which are Sales Corp., 346 Ill. App. 3d 223, 803 N.E.2d 977 (4th Dist. applicable to the balance which must be struck between the 2004)(accepted); with Miller v. Rinker Boat Co., 352 Ill. App. benefits for which a product is purchased and the risks that it 3d 644, 815 N.E.2d 1219 (4th Dist. 2004), and Wortel v. poses to the purchaser and third parties. Those factors start Somerset Industries, Inc., 331 Ill. App. 3d 895, 770 N.E.2d with recognition of design criteria set by government regu- 1211 (1st Dist. 2002)(rejected). lation and industry standards, e.g., Anderson v. Hyster Co., In considering the so-called “simple” product which is and Rucker v. Norfolk & W. Ry. Co., 77 Ill. 2d 434, 436-39, fraught with patent peril, the court in Calles found that the 396 N.E.2d 534, 535-37 (1979), and the feasibility of alter- open and obvious nature of any hazards which are inherent native designs, including the cost of those designs, e.g., Kerns in a product is a factor which has a bearing upon both con- v. Engelke, as well as the patency of any risk which is inher- sumer expectations and the balancing which is required in ent in the product. E.g., Blue v. Envtl Eng’g, Inc., 215 Ill. 2d assessing the risks inherent in a product versus its benefit or 78, 103, 828 N.E.2d 1128, 1145 (2005). The court then went utility. On a sliding scale, the patency of a risk is given a on to add the following factors from J. Wade, On The Nature higher priority in the context of consumer expectations than Of Strict Tort Liability For Products, 44 MISS. L.J. 825, 837- it is accorded in weighing the risks of a product as compared 38 (1973): to its benefits. Thus, where a product is simple, such as the deep fat fryer in Scoby and the lighter in Scripto, that danger (1) The usefulness and desirability of the product-its is within the consumer’s contemplation, particularly where utility to the user and to the public as a whole. it is inherent in the product’s function, i.e., boiling oil and (2) The safety aspects of the product-the likelihood that starting fires. However, that anticipation has less significance it will cause injury, and the probable seriousness of where the exposure could be overcome or mitigated by a fea- the injury. sible alternative design. (3) The availability of a substitute product which would Applying perceived public policy, the Scripto court meet the same need and not be as unsafe. found that a per se bar of liability in products with open and (4) The manufacturer’s ability to eliminate the unsafe obvious hazards would discourage manufacturers from mak- character of the product without impairing its use- ing them safer. Inherent in that reasoning is the assumption (Continued on next page)

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Mikolajczyk v. Ford Motor Company (Continued) clearly applies, carrying with it a wide variety of potentially fulness or making it too expense to maintain its util- relevant factors. Nonetheless, there may still be some products ity. which by their very nature cannot be considered “unreasonably (5) The user’s ability to avoid danger by the exercise of dangerous,” e.g., rubber-soled shoes, Fanning v. LeMay, 38 Ill. care in the use of the product. 2d 209, 230 N.E.2d 182 (1967), the overhang of commercial (6) The user’s anticipated awareness of the dangers in- trailers, Mieher v. Brown, 54 Ill. 2d 539, 301 N.E.2d 307 (1973), herent in the product and their availability, because and trampolines, Sollami v. Eaton. Scripto also casts some doubt of general public knowledge of the obvious condi- upon the plurality opinion in Blue v. Envtl Eng’g, Inc., as it re- tion of the product, or of the existence of suitable lates to the application of risk-utility principles in negligent prod- warnings or instruction. uct design cases. While not specifically applying the rule to the (7) The feasibility, on the part of the manufacturer, of negligence claims in Scripto, the court strongly implied that the spreading the loss by setting the price of the product same evidentiary criteria may be considered in the context of or carrying liability insurance. what a reasonably careful manufacturer would consider in designing a product. Calles, 224 Ill. 2d at 264-65. To these the court added as potentially relevant “(1) the appearance and aesthetic attrac- tiveness of the product; (2) its utility for multiple uses; (3) the convenience and extent of its use, especially in light of Mikolajczyk is the obverse side of the period of time it could be used without harm resulting from the product; and (4) the collateral safety of a feature the risk-utility coin. There the court other than the one that harmed the plaintiff.” Calles 224 Ill. 2d at 266. was called upon to determine whether Whether all or only certain of these factors apply in a the consumer expectation test applies given case is for the court to determine. It is up to the parties to decide which factors are relevant. The court will then se- to the design of complex products lect those which are admissible and, upon completion of the proof, will determine whether “the case is a proper one to and, if so, whether the plaintiff can submit to the jury.” Id. Thereafter it is up to the triers of fact choose the standard upon which to evaluate and weigh those factors in reaching its decision. Applying this flexible risk-utility standard to the Scripto the case is to be tried. lighter, the court held that the plaintiff had presented proof of sufficient relevant factors to permit the case to go to the jury on the strict liability claims. It reached the same result on the negligence claims. In that respect it found that the crucial consideration “is whether the manufacturer exercised Mikolajczyk v. Ford Motor Co. reasonable care in the design of the product.” Calles, 224 Ill. 2d at 270. From the opinion it is evident that the court be- Mikolajczyk is the obverse side of the risk-utility coin. lieved that the same factors apply to what a manufacturer There the court was called upon to determine whether the should reasonably foresee as bear upon the utility of a prod- consumer expectation test applies to the design of complex uct versus its benefits. Among these is the “open and obvi- products and, if so, whether the plaintiff can choose the stan- ous nature of any danger which is inherent in the product.” dard upon which the case is to be tried. In Mikolajczyk the As the court held: “The open and obvious nature of a danger driver of a Ford Escort was killed when he was struck from is just one factor in evaluating whether a manufacturer acted behind with such force that his seat back collapsed propel- reasonably in designing its product. It is not dispositive.” ling him rearward so that he struck his head on the back seat Calles, 224 Ill. 2d at 271. of the car. His widow sued Ford on the theory that the design Calles v. Scripto-Tokai Corp. resolved the question of of the seat was unreasonably dangerous. At trial the plaintiff whether the risk-utility analysis applies to simple products, relied on Hansen v. Baxter Healthcare Corp., in electing to particularly those which have a self-evident potential for in- try the case on the consumer expectation standard. Ford ar- jury. In strict tort liability design cases the risk-utility test gued that following Calles, risk-utility is the sole and exclu-

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sive test to determine whether a product design is unreason- The obvious question is how those divergent “meth- ably dangerous. ods of proof” can be reconciled where the plaintiff is going During the trial proof was offered and received on both in one direction and the defendant is proceeding in another. theories. At the conclusion of the evidence the jury was given Can the plaintiff win on his “method of proof” and the de- the standard pattern instructions in IPI Civil Nos. 400.01.01, fendant prevail on its “method of proof”? What would hap- 400.02 and 400.06 which apply to defective manufacture and pen if the jury was instructed on both standards and incon- warning as well as defective design cases. In doing so the sistent answers resulted? Responding to those questions, the trial court rejected Ford’s non-pattern instruction that was court posited four possible outcomes: directed at “whether the foreseeable risks of harm of the de- (1) The product could be found unreasonably danger- sign outweighed its benefits, and whether the adoption of a ous under both tests and judgment would be for the feasible alternative design would have avoided or reduced plaintiff (See Hansen v. Baxter Healthcare Corp., the risks.” Mikolajczyk, 2008 WL 4603565, at *2. The ap- 198 Ill. 2d 420 (2002)); pellate court rejected the defendant’s arguments and affirmed, (2) The product could be exonerated under both stan- after remitting a portion of the damages. That set the stage dards and judgment would be for the manufacturer for the supreme court to decide whether the defendant in a (See Lampkin, 138 Ill. 2d 510 (1997)); design defect case can offer risk-utility evidence when the (3) The product could be found unreasonably danger- plaintiff has elected to proceed under the consumer expecta- ous under the risk-utility test but not under the con- tion test, and, if so, how the jury should be instructed. sumer expectation test (See Calles v. Scripto-Tokai Responding to those questions the court first rejected the Corp., 224 Ill. 2d 247 (2007)); or manufacturer’s contention that the risk-utility standard must (4) The product could be found unreasonably danger- be applied exclusively in complex product cases. In doing so ous under the consumer expectation test but not un- the court also refused to apply the restrictive approach which der the risk-utility standard. is required by subsection 2(b) of the Restatement (Third) of Torts. Instead, it reaffirmed the alternative approach which Mikolajczyk, 2008 WL 4603565, at *19. was applied in Hansen v. Baxter Healthcare Corp. The court also approved the continuing use of Illinois Pattern Jury In- In discussing the last alternative the court considered struction 400.06 and its reliance upon the term “unreason- Mele v. Howmedica, Inc., 348 Ill. App. 3d 1, 808 N.E.2d 1026 ably dangerous” to describe a defective product. On the lat- (1st Dist. 2004), and Besse v. Deere & Co., 237 Ill. App. 3d ter point the choice was between “unreasonably dangerous,” 497, 604 N.E.2d 998 (3rd Dist. 1992), and held that the best meaning that the product is “too dangerous,” as opposed to approach is to integrate the consumer expectation test with the term “not reasonably safe” which means that it is “not the risk benefit analysis. In that respect the Mikolajczyk court safe enough.” found that the two tests are “. . . not mutually exclusive and The court then went on to reject the plaintiff’s conten- may be applied together if the evidence supports it.” tion that she was entitled to choose between the consumer Mikolajczyk, 2008 WL 4603565, at *20. Thus, it further held expectation “theory” and the risk-utility “theory” in trying that “even when a plaintiff chooses to proceed under the con- her case. In rejecting that menu approach the court first dis- sumer-expectation test, she cannot dictate the defendant’s tinguished between “theories of liability” and “methods of method of proving its case by preventing the admission of proof.” It held that in strict product liability cases there are evidence relevant to the risk-utility analysis. . .” Id. at *21. three theories: “manufacturing defect, design defect, and fail- Where there is evidence to support both approaches “con- ure to warn.” Mikolajczyk, 2008 WL 4603565, at *17. The sumer expectation” becomes “but one of the factors to be consumer expectation test and the risk-utility test are simply considered in applying an expanded risk-utility standard.” alternative “methods of proof.” Each party is entitled to use Thus, the court held: the method of proof which it believes will demonstrate that a product is or is not “unreasonably dangerous.” Thus, a plain- In sum, we hold that both the consumer-expectation tiff may limit its proof in a complex product design case to test and the risk-utility test continue to have their what a consumer would expect. At the same time the manu- place in our law of strict product liability based on facturer is entitled to weigh the risks inherent in a product design defect. Each party is entitled to choose its against its utility or benefit, using the various factors which own method of proof, to present relevant evidence, were approved in Calles. (Continued on next page)

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Mikolajczyk v. Ford Motor Company (Continued) In this approach which synthesizes and integrates the use of both consumer expectation and risk-utility approaches and to request a corresponding jury instruction. If in design defect cases, it makes no difference whether the the evidence is sufficient to implicate the risk-util- product is simple or complex. Each side is entitled to use its ity test, the broader test, which incorporates the fac- “method of proof” in proving or disproving that a product’s tor of consumer expectations, is to be applied by the design is “unreasonably dangerous.” While Calles v. Scripto- finder of fact. Tokai does not directly address the incorporation of consumer expectation language into a risk-utility instruction in simple Id. at *30. product cases, there is no reason to assume that the same integrated standard which pertains to complex product cases Following this determination, the court considered the would not be applied. Consequently, following Mikolajczyk instructions which had been tendered by Ford in support of v. Ford Motor Co., design defect cases will undoubtedly the risk-utility approach. Those instructions included the fol- embody aspects of both consumer expectation and risk-util- lowing, which are set forth for illustrative purposes: ity approaches with plaintiffs presenting evidence in support A product is defective in its design when the fore- of the latter where the product is simple and in favor of the seeable risks of harm posed by the product outweigh former where it is complex while the defendants take the the benefits of the design and the risks can be avoided opposite approach. or reduced by the adoption of alternative feasible design. Feasible alternative designs must be avail- Conclusion able at the time that the product left the control of the defendant. In Calles v. Scripto-Tokai Corp. and Mikolajczyk v. Ford Motor Co., the Illinois Supreme Court came to grips with the Feasibility includes not only elements of economy, conflicting approaches to the proof and defense of defective effectiveness, and practicality, but also technologi- product design cases. In rejecting the exclusive application cal possibilities under the state of the manufactur- of the consumer expectation or risk-utility tests to simple or ing art at the time the product was produced. complex products, and refusing to allow the plaintiff to control the evidence by choosing between them, the court fa- When evaluating the reasonableness of a design al- vored an integrated rule which allows each side to pursue its ternative, the overall safety of the product must be “method of proof” with the court giving a multi-factoral in- considered. It is not sufficient that the alternative struction where those methods of proof differ. Clearly, it is design would have reduced or prevented the harm up to the trial courts to referee the dispute and in doing so to suffered by the plaintiff if it would also have intro- determine which factors are material and what evidence is duced into the product other dangers of equal or relevant. Questions relating to the facts which a plaintiff must greater magnitude. A product’s design may be rea- allege in his complaint and those which the defendant must sonably safe even if the product is not accident proof. aver by way of affirmative defense remain open. The same is true in a related sense to the burden or burdens of going for- While the court did not go so far as to adopt those in- ward with the evidence. Undoubtedly, these will be the sub- structions, it did reverse and remand the case because the ject of future cases. trial court had not instructed the jury on Ford’s risk-utility approach, stating: (Endnote) We agree with the cited cases that when a party tenders a jury instruction that states the legal principles 1 Pregnant but unresolved in Hansen is the learned intermediary applicable to the case and that instruction is sup- rule which measures the safety of medical or pharmaceutical products ported by the evidence, it is an abuse of discretion by the knowledge of the physician who prescribes or orders it. See Kirk v. Michael Reese Hosp. & Medical Ctr., 275 Ill. App. 3d 170, to refuse to give the instruction if the refusal preju- 655 N.E.2d 933 (1st Dist. 1995) appeal denied 165 Ill. 2d 552, 662 dices the party’s right to a fair trial. N.E.2d 425 (Ill. Jan 31, 1996), and Mueller and Cassidy, Evolution Of The Learned Intermediary Doctrine in Illinois– Doctor Knows Best Id. at *26. Mostly, IDC Quarterly Vol. 12 No. 3.

80 First Quarter 2009

continuation of credit.” 16 C.F.R. § 681.2(b)(5); 15 U.S.C. § 1681a(r)(5). While the definition of creditor is somewhat Health Law unclear because the term “regularly” is not defined, the FTC has stated, “where [entities] defer payment for goods or services, they too are to be considered creditors.” Id. Conse- quently, healthcare institutions that defer payment for their By: Roger R. Clayton and Jesse A. Placher patients will be considered creditors. Heyl, Royster, Voelker & Allen Peoria

Under new regulations known as “Red Flag Rules,” most healthcare What Every Litigator Needs to Know About Red Flag Rules institutions will now also be assisting in the fight against identity theft. Healthcare institutions are known for assisting individuals battling injury, illness and disease. Under new regulations known as “Red Flag Rules,” most healthcare institutions will now also be assisting in the fight against identity Creditors that have “covered accounts” are required to theft. Under the Red Flag Rules, healthcare institutions will comply with Red Flag Rules. 16 C.F.R. § 681.2(a); 15 U.S.C. be required to institute programs that will identify and detect § 1681s(a)(1). A covered account is defined in relevant part suspicious activity indicative of identity theft, or “red flags.” as, “an account (a continuing relationship established by a In 2003, the Fair and Accurate Credit Transactions Act person) that a creditor offers or maintains primarily for per- (“FACTA”), Pub. L. 108-159, 15 U.S.C. § 1581m(h), was sonal, family, or household purposes,” that (1) permits mul- enacted. Under FACTA, the Federal Trade Commission (Continued on next page) (“FTC”), the National Credit Union Administration and the federal bank regulatory agencies were directed to develop regulations to detect, prevent and mitigate identity theft. On About the Authors November 9, 2007, these agencies created the Red Flag Rules. 16 C.F.R. § 681.2. The rules were to take effect November 1, Roger R. Clayton is a partner in the Peoria office of Heyl, 2008. However, the FTC recently announced that it will not Royster, Voelker and Allen where he chairs the firm’s begin enforcement until May 1, 2009. http://www.ftc.gov/ healthcare practice group. He also regularly defends physicians and hospitals in medical malpractice litigation. Mr. opa/2008/10/redflags.shtm. As a result, healthcare institu- Clayton is a frequent national speaker on healthcare issues, tions still have time to develop and implement a program in medical malpractice and risk prevention. He received his compliance with Red Flag Rules. undergraduate degree from Bradley University and law degree from Southern Illinois University in 1978. He is a member of the Illinois Association of Defense Trial Counsel (IDC), the Illi- Why Red Flag Rules Apply to Healthcare Institutions nois State Bar Association, past president of the Abraham Lincoln Inn of Court, President and board member of the Illinois Association of Healthcare Attor- neys, and past president and board member of the Illinois Society of Healthcare The rules apply to “financial institutions” and “credi- Risk Management and co-authored the Chapter on Trials in the IICLE Medi- cal Malpractice Handbook. tors” who have “covered accounts.” 16 C.F.R. § 681.2(a); 15 U.S.C. § 1681s(a)(1). Healthcare institutions rarely, if ever, will be deemed a financial institution. However, many Jesse A. Placher is a 2007 Fall Associate in the Peoria healthcare institutions are likely to be “creditors,” as defined office of Heyl, Royster, Voelker & Allen. He received his by FACTA. As creditors, healthcare institutions will be sub- undergraduate degree from the University of Virginia in 2004 and law degree from Southern Illinois University in ject to the rules if they maintain covered accounts. 2007. During law school, he was a member of the SIU Trial A creditor is defined in relevant part as, “any person who Team and was awarded the Order of the Barristers in 2007. regularly extends, renews, or continues credit [or] any per- Following graduation, he joined the firm’s Peoria office in August 2007. son who regularly arranges for the extension, renewal, or

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Health Law (Continued) healthcare institution may design its own program and the tiple payments or transactions, or (2) presents a foreseeable nature of its operations based on the institution’s size and risk to customers or the creditor of identity theft. 16 C.F.R. § complexity. 681.2(b)(3). A healthcare institution’s billing accounts are After the Red Flag Rules were released, the agencies likely to qualify as covered accounts under this definition. created a supplement identifying many potential red flags. First, patients may be allowed to make multiple payments. 16 C.F.R. § 681, Appendix A. This list of potential red flags Additionally, there is a foreseeable risk of identity theft in may be a helpful reference guide to healthcare institutions the event that a patient’s billing information is disseminated. designing their own programs. The examples are divided into Aside from its billing accounts, a healthcare institution may five categories, including: have other covered accounts, such as credit accounts for practice groups that regularly deal with the healthcare institu- 1. Alerts, notifications, or warnings from a con- tion. sumer reporting agency; 2. Suspicious documents; Requirements Under the Red Flag Rules 3. Suspicious personally identifying information, such as a suspicious address; Healthcare institutions are considered by the FTC to be 4. Unusual use of, or suspicious activity relating “creditors” if they have “covered accounts,” as defined by to, a covered account; and FACTA, and therefore must comply with the Red Flag Rules. 5. Notices from customers, victims of identity theft, 16 § C.F.R. 681.2. law enforcement authorities, or other businesses Under the rules, qualifying healthcare institutions are about possible identity theft in connection with required to create and implement a program, in writing, de- covered accounts. signed to detect, prevent, and mitigate identity theft in both new and existing accounts. 16 C.F.R. § 681(d)(2). The FTC 16 C.F.R. § 681, Appendix A(II)(c). states that the program must contain reasonable policies and procedures that will enable a creditor to: Healthcare institutions should be aware that the examples provided are not an exhaustive list. Healthcare institutions 1. Identify relevant patterns, practices, and specific should still develop their own list of red flags, as appropriate forms of activity that are “red flags” signaling to their specific business. possible identity theft and incorporate those red Finally, it is important to recognize the distinction be- flags into the program; tween a healthcare institution’s HIPAA policies and the Red 2. Detect red flags that have been incorporated into Flag Rules. An institution’s HIPAA policies will not be suf- the program; ficient to satisfy the requirements under the Red Flag Rules. 3. Respond appropriately to any red flags that are HIPAA is focused on protecting patient information in the detected to prevent and mitigate identity theft; healthcare institution’s possession from disclosure to third and parties. The Red Flag Rules, on the other hand, are designed 4. Ensure the program is updated periodically to to ensure that the information coming into the healthcare in- reflect changes in risks from identity theft. stitution is truly from the person it is purportedly from.

16 C.F.R. § 681.2(d)(2). The board of directors or senior Conclusion employees of the healthcare institution must establish the healthcare institution’s program and manage the implemen- Although there is no private cause of action under the tation and administration of the program. 16 C.F.R. § 681.2(e). Red Flag Rules, the FTC can seek civil damages, including The healthcare institution must also conduct an annual re- actual and punitive damages, as well as attorney fees. Poli- view of the program. Finally, the healthcare institution is re- cies for healthcare institutions to address the Red Flag Rules quired to train staff to comply with its program and must are not onerous and can not only avoid an FTC action, but also oversee any third-party service providers. also engender the trust of patients with regard to the Healthcare institutions should recognize that the Red Flag institution’s business practices. Encourage your clients to put Rules provide flexible requirements. Each qualifying a Red Flags Policy in place prior to May 1, 2009.

82 First Quarter 2009

orous and exhaustive defense and was willing to pay for it. The same response as was used in the first insult, or some The Defense Philosophy variation thereof, should do nicely.

By: Willis R. Tribler Tribler Orpett & Meyer, P.C. The best way to deal with such Chicago invective is to do the very best you can to make certain that the offender Magic Words gets a poor result. That should cause him or her to be more careful in the One of my most vivid memories as a law school inter- viewer is the time that I had just concluded an interview when future about trying to demean the student asked me, “How do you deal with the stigma of being an insurance defense lawyer?” That choice of word, defense lawyers. “stigma,” overcame a good 20 minutes and convinced me that the young man would not be happy doing our kind of work. I wonder where people get this stuff. I presume it comes 3. “You are nothing but house counsel. What you from plaintiff propaganda that they are the white knights of say does not matter.” the law and that insurance companies are handmaidens of This insult is frustrating in this era of well-trained and the Devil. Since virtually every nickel that has sustained me highly professional lawyers who are employed by insurance during my childhood and later years has come from the in- carriers to represent their insureds. The best response is to surance industry, I take umbrage at such comments and have do a little homework and come up with a list of prominent resolved not to accept them without a reply. plaintiffs’ lawyers, hopefully a few from your opponent’s own Here are three of the most unfair “magic word” insults firm, who were once house counsel and point out that these and how to deal with them. people have done very well. Above all, do not trade insult for insult. Never tell a 1. “You don’t care about your client. All you want to do plaintiff’s lawyer that he or she is “a chaser with no ethics” is run up your bill.” or say “you don’t know any more about ethical conduct than For some reason, plaintiffs’ lawyers like to level this a pig knows about religion.” Do not cringe or cower or let charge. Although there are probably some defense lawyers such charges go unchallenged. Be polite but firm. who do run up bills, it is my experience that it is very rare. The best way to deal with such invective is to do the Most lawyers are too busy to create make-work and if they very best you can to make certain that the offender gets a tried to do so, an experienced claims representative would poor result. That should cause him or her to be more careful soon rein them in. The best response is to tell the plaintiff’s in the future about trying to demean defense lawyers. lawyer that you understand why he or she does not want to confront a thorough defense, but that is the sort of defense that is being conducted in your case. About the Author

2. “All you are doing is putting on a show Willis R. Tribler is a director of the firm of Tribler Orpett & Meyer, P.C. in Chicago. He is a graduate of Bradley for your client.” University and the University of Illinois College of Law, This charge is the full brother of the first insult. Such and served as President of the IDC in 1984-1985. conduct will result in the same sort of wing-clipping by a claims representative that the first one would inspire. The primary exception would be if the client wanted a very vig-

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As a reminder for future submissions, the Amicus Com- mittee members are: Amicus Committee Report Committee Chairman Michael L. Resis By: Michael L. Resis SmithAmundsen, LLC SmithAmundsen LLC (312) 894-3249 Chicago [email protected]

First Judicial District John J. Piegore Sanchez & Daniels 333 W. Wacker Drive, Suite 500 Chicago, Illinois 60606 On November 25, 2008, in Ready v. United/Goedecke (312) 641-1555 Services, Inc., Docket No. 103474, the Illinois Supreme Court, over a dissent, resolved a conflict among different appellate panels and held that Section 2-1117 of the Code of Second Judicial District Civil Procedure, 735 ILCS 5/2-1117, does not apply to James L. DeAno tortfeasors who have settled before judgment. This Illinois DeAno & Scarry Supreme Court decision is discussed fully in the “Recent 2100 Manchester Road, Suite 101A Decisions” Column of Stacy Dolan Fulco in this issue of the Wheaton, Illinois 60187 IDC Quarterly. Therefore, to avoid duplication, it will not be (312) 690-2800 analyzed here. Suffice it to say that the plurality decision of the court disagreed with the position espoused in the IDC’s Third Judicial District amicus brief, namely that the fault of settled parties should Karen L. Kendall be considered by the jury for purposes of determining per- Heyl, Royster, Voelker & Allen centage of fault for Section 2-1117 analysis. 124 SW Adams Street David H. Levitt of Hinshaw & Culbertson authored an Bank One Building, Suite 600 amicus brief on behalf of the IDC in support of the defen- Peoria, Illinois 61602 dant-appellant before the supreme court in Ready. (309) 676-0400 The IDC fared better in Mikolajczyk v. Ford Motor Co., Docket No. 104983, filed on October 17, 2008, a product liability case arising out of an allegation of an unreasonable defective design of an automobile seat. There, the Illinois Supreme Court agreed with the position taken by the IDC. The court held that a nonpattern defense instruction on the risk-utility test should have been given in addition to a About the Author plaintiff’s pattern instruction on consumer-expectation test where both sides presented evidence in support of their theory Michael L. Resis is a founding partner and chairman of of the case. SmithAmundsen’s appellate department. He concentrates The Mikolajczyk opinion is the subject of a feature ar- his practice in the areas of appeals, insurance coverage and toxic, environmental and mass torts. He has practiced law ticle written by David B. Mueller and Jennifer L. Wolfe, which in Chicago for 20 years and handled more than 400 ap- also appears in this issue. peals. Mr. Resis has represented government, business and professional organizations as amicus curiae before the Illi- Jeffrey S. Hebrank and Misty L. Wuebbles of Hepler nois Supreme Court and the Illinois Appellate Court. He Broom MacDonald Hebrank True & Noce LLC authored an received his B.A. degree, magna cum laude, from the University of Illinois at amicus brief on behalf of the IDC in support of the defen- Champaign-Urbana in 1978, and a J.D. degree from the University of Illinois at Champaign-Urbana in 1981. Mr. Resis currently serves on the Board of dant-appellant. Directors for the IDC.

84 First Quarter 2009

Fourth Judicial District Robert W. Neirynck Costigan & Wolrab, P.C. 308 E. Washington Street, P.O. Box 3127 Bloomington, Illinois 61701 (309) 828-4310

Fifth Judicial District Stephen C. Mudge Reed, Armstrong, Gorman, Coffey, Thompson, Gilbert & Mudge 101 N. Main Street, P.O. Box 368 Edwardsville, Illinois 62025-0368 (618) 656-0257

While our committee cannot prepare an amicus brief in every case in which we are asked, we encourage your participation in making the views of our members known to the reviewing courts on the legal issues that affect us. We need your input and your support. If you are interested in writing an amicus brief or submitting a case for review by the committee, please contact any of us.

85 IDC Quarterly

can cause bleeding at the terrifying rate of a pint every two minutes. Your donated pint of blood, added with the dona- Young Lawyers Report tions of others, may save the life of a woman giving birth. The Young Lawyers Division Committee also kicked off 2009 with six new sub-committees. Committee member Nicole Milos with Cremer, Shaughnessy, Spina, Jansen & By: Jennifer B. Groszek* Siegert, LLC hopes the sub-committees will bring new voices Gunty & McCarthy to the committee. She stated, ”Our hope is to increase com- Chicago mittee involvement and continue to develop programs and events to increase the YLD’s involvement in both the legal and non-legal communities.” The six new sub-committees Giving blood saves lives! For the third year, the YLD are out-lined below and are in need of additional members. began the New Year with a blood drive. The Third Annual Make 2009 a year of active involvement in the YLD and IDC Blood Drive was co-sponsored by the IDC Young Law- IDC! yers Division and the Young Lawyers Section of the Chi- The Young Lawyers Division sub-committees are: cago Bar Association. While the blood drive may be over, the need for blood continues year round. Fellow IDC mem- (1) Speaker Presentations — This sub-committee is ber and Chair of the IDC Insurance Law Committee, David responsible for locating topics, meeting locations and Lewin with Tribler Orpett & Meyer, P.C. shares his recent speakers for monthly presentations. experience which illustrates the necessity of donating blood. (2) Planning — This sub-committee is responsible for Nearly two years ago, his wife suffered complications dur- maintaining the YLD calendar, sending invitations and reminders for events, facilitating CLE credit for speaker presentations and distributing CLE certifi- cates. The difference between a happy and (3) Community Involvement — This sub-committee is responsible for planning and developing healthy mother enjoying her toddlers fundraising, charity and volunteer events. (4) Social — This sub-committee is responsible for plan- and a husband struggling to raise ning and developing social events for members. (5) Newsletter — This sub-committee is responsible for them on his own can come down to creating the quarterly YLD newsletter. This includes someone’s choice to donate blood writing and gathering articles/information and for- matting the publication. and the immediate availability of banked blood.

About the Author ing the birth of their twins which caused substantial blood Jennifer Groszek is an attorney with the Law offices of loss. Through the outstanding work of their surgeons, his wife Gunty & McCarthy in Chicago. She is the Chair of the IDC- Young Lawyers Division and is a member of the CBA, survived the birth and they are the proud parents of two ISBA, NAWL, Bar Association of Metropolitan St. Louis healthy toddlers. The fact that everyone is now healthy and and DRI. Jennifer received her B.A. in 1999 from the Uni- happy is only possible because people whom they do not versity of Wisconsin-Stevens Point and J.D. in Dec. of 2001 from Valparaiso University School of Law. Jennifer is li- know, and can never thank enough, donated blood.The dif- censed in Illinois & Missouri. ference between a happy and healthy mother enjoying her toddlers and a husband struggling to raise them on his own * Ms. Groszek recognizes and thanks David Lewin, Nicole Milos and Dan can come down to someone’s choice to donate blood and the Connell for their contributions to this column. immediate availability of banked blood. A hemorrhage at birth

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(6) Membership — This sub-committee is responsible for expanding committee membership, maintaining involvement of current YLD Committee members and getting inactive committee members involved.

Additionally, Dan Connell, with McKenna Storer, created a mentoring program to enhance the law student members’ IDC-YLD experience. The mentoring program is unique in that it is flexible and allows law student members to tailor their mentoring experience to their specific needs. Dan Connell stated:

The Mentoring Program matches experienced associates (mentors) with law students (protégés). The mentor-protégé relationship can take a variety of forms. A mentor may provide career guidance and offer suggestions or direction relating to the legal practice. Further, a mentor would be a source to learn about the realities of life as a practicing associate and to act as a sounding board. Also, it will be a great opportunity for networking and referrals. How often to communicate and by what means (email, phone, in person, etc.) will be determined largely by the protégé. There are no minimum requirements or expectations. The protégé is free to decide how much time to devote to the relationship.

If you are interested in joining the YLD Committee, host- ing a meeting or volunteering to speak at one of the YLD Committee meetings, please contact Jennifer Groszek at [email protected].

87 IDC Quarterly

Notice of Election

In accordance with the By-Laws of the Illinois Association of Defense Trial Counsel, an election must be held to fill the vacancies of the following six (6) directors, whose terms will expire at the Annual Meeting in June of 2009:

Linda Hay, Alholm, Monahan, Klauke, Hay & Oldenburg, LLC R. Mark Mifflin, Giffin, Winning, Cohen & Bodewes, P.C. David H. Levitt, Hinshaw & Culbertson LLP Fred B. Moore, Lawrence, Moore, Ogar & Jacobs John P. Lynch, Jr., Cremer, Shaughnessy, Spina, Bradley C. Nahrstadt, Williams, Montgomery & John, Ltd. Jansen & Siegert L.L.C.

Recommendations for nominations of six (6) persons to A sample copy of the nominating petition and commit- be elected to the Board of Directors are now being solicited ment to serve statement are included below for your refer- from the general membership. ence. The filing of a nominating petition for election as a di- Nominations shall be mailed to IDC Secretary/Treasurer, rector shall consist of: R. Howard Jump at Jump & Associates, P.C., 11 South LaSalle St., #2000, Chicago IL 60603. A complete copy must also be 1. The nominating petition. Each individual nominated must mailed to IDC Executive Director Sandra J. Wulf at Illinois be supported by the signatures of three (3) members in Association of Defense Trial Counsel, PO Box 3144, Spring- good standing. field, IL 62712. Nominations must be accompanied with 2. A statement by that member of his or her availability the five items listed above. All candidates will be featured and commitment to serve actively on the board. with their biographies, statements of candidacy and photo- 3. A black-and-white photograph from the shoulders up (jpg graphs in the next issue of the IDC Quarterly. A copy this format, preferred). portion of the IDC Quarterly will then be mailed to the mem- 4. A short biography, or summary of qualifications, of the bership with the ballots if more than six petitions are received. nominee. All nominating petitions must arrive at the IDC office 5. A statement by the nominee of no more than 200 words no later than Monday, March 2, 2009. on why he or she should be elected to the Board of Di- All candidates who have filed a complete nominating rectors. petition are eligible to receive a CD-ROM with the IDC membership addresses, sorted alphabetically, by zip code or by firm, upon request.

Statement of Availability and Commitment Sample Nominating Petition Sample We, the undersigned, hereby declare that we are members in I, ______, hereby good standing of the Illinois Association of Defense Trial Coun- declare that I am a member in good standing of the Illinois sel. Association of Defense Trial Counsel and I do hereby warrant and affirm my ability and commitment to serve actively We, the undersigned, further nominate (name of person) of (firm on the Board of Directors of the Illinois Association of De- name, address, city, state, zip code) for the position of Director fense Trial Counsel. of the Illinois Association of Defense Trial Counsel.

Dated this ______day of ______, 2009. John Doe (signature) Jane Doe (signature) ______Jack Doe (signature) Signature Dated this ______day of ______, 2009.

88 First Quarter 2009

New Members The IDC is proud to welcome the following members to the association:

Jeffery Robert Beck Jason Charles Novak Williams, Montgomery & John, Ltd., Chicago Hinshaw & Culbertson LLP, Chicago ■ Sponsored by: Bradley Nahrstadt ■ Sponsored by: Steven Puiszis

Nelson A. Brown, Jr. Conrad C. Nowak Chicago Park District, Chicago Hinshaw & Culbertson LLP, Chicago ■ Sponsored by: Steven Puiszis Jared Kent Clapper SmithAmundsen LLC, Chicago Alex Olshannikov ■ Sponsored by: Glen Amundsen DePaul University, Chicago

Amber Christina Coisman Thomas Osran Tressler, Soderstrom, Maloney & Priess, LLP, Chicago Judge, James & Kujawa, LLC, Park Ridge

Brianne Michelle Connell Lucretia Pitts Newman Raiz, LLC, St. Charles City of Springfield, Office of Corporation Counsel, Springfield James Louis Craney Brown & James, P.C., St. Louis, MO Bradley Gordon Rausa SmithAmundsen LLC, Chicago Gay Nell German ■ Sponsored by: Glen Amundsen Cassidy & Mueller, Peoria ■ Sponsored by: David Mueller Sara M. Stertz SmithAmundsen LLC, Chicago Cynthia Sara Grandfield Klein, Thorpe and Jenkins, Ltd., Chicago Lisa J. Vedral Brady, Connolly & Masuda, P.C., Chicago Ryan Michael Helgeson ■ Sponsored by: Andrew Makauskas DePaul University, Chicago Eliina Marie Viele Kevin Michael Hudspeth Jump & Associates, P.C., Chicago Denis J. McKeown & Associates, Chicago ■ Sponsored by: Howard Jump

Kimberly Ann Jansen Erin A. Walsh Hinshaw & Culbertson LLP, Chicago SmithAmundsen LLC, Chicago ■ Sponsored by: Steven Puiszis ■ Sponsored by: Glen Amundsen

Claire Lauren Lunardini Douglas A. Wolfe Williams, Montgomery & John, Ltd., Chicago Williams, Montgomery & John, Ltd., Chicago ■ Sponsored by: Bradley Nahrstadt ■ Sponsored by: Bradley Nahrstadt

89 IDC Quarterly

Friday, March 13, 2009 Standard Club of Chicago

320 S. Plymouth Court, Chicago

2008-2009 IDC President Gregory L. Cochran, McKenna Storer

2009 Spring Seminar Committee Chair Robert T. Varney, Robert T. Varney & Associates

Committee Members Robert T. Varney, Chair, Robert T. Varney & Associates John O’Driscoll, Co-Chair, Tressler, Soderstrom, Maloney & Priess, LLP Joe Feehan, Heyl, Royster, Voelker & Allen Rossana Fernandez, Sanchez, Daniels & Hoffman LLP Rick Hammond, Johnson & Bell Ltd. Richard Lenkov, Bryce, Downey & Lenkov Premier Sponsors Mark Sheaffer, Garretson, Santora, Urgo & Nugent, Ltd. Patrick Stufflebeam, Hepler, Broom, MacDonald, Hebrank, True & Noce, LLC Sandra Wulf, Illinois Association of Defense Trial Counsel

90 First Quarter 2009

AGENDA 2:15 – 2:45 Appellate Court Primer – State — Karen L. Kendall, Heyl, Royster, Friday, March 13, 2009 Voelker & Allen

8:30 Exhibit Hall Open 2:45 – 3:00 Refreshment Break

8:30 – 9:30 Registration & Continental Breakfast 3:00 – 3:30 Developments in Federal Appellate Practice — Craig Unrath, Heyl, 9:30 – 9:45 Opening Remarks Royster, Voelker & Allen 9:45 – 10:15 Federal Court Primer — 3:30 – 4:00 Spoliation of Evidence — Shane M. Honorable James B. Zagel, United Carnine, Campbell, Black, Carnine, States District Court – North District Hedin, Ballard & McDonald, P.C. of Illinois 4:00 – 4:30 Expert Pitfalls and How to Avoid 10:15 – 10:45 Tort Law Update — Them — Victoria Benson, Cuisinier, Honorable Franklin U. Valderrama, Farahvar & Benson, Ltd. Circuit Court of Cook County 4:30 – 5:00 Ethics Update — Mary Andreoni, 10:45 – 11:00 Jury Instructions: Advice from the Attorney, Registration & Disciplinary Trenches — Timothy Weaver, Commission Pretzel & Stouffer, Chartered 5:00 – 5:30 Biomechanical Analysis In Auto 11:00 – 11:15 Refreshment Break Injury Cases — Dr. Sandra Metzler, 11:15 – 11:45 Point Counterpoint – Surveillance SEA, Ltd. Films — Tom Boleky, Corboy & Demetrio, P.C. and John W. Robertson, Robertson, Wilcox & Registration for this event includes seminar materials, CLE credit, access to our Exhibit Hall, refreshment breaks, lunch Statham, P.C. and great networking opportunities. 11:45 – 12:15 Multiple Defendant Issues – Crossclaims and Counterclaims — Margaret M. Foster, McKenna Storer Can’t Attend? 12:15 – 12:45 Luncheon Following the conference the IDC will offer this program for purchase on video CD-ROMs, audio CDs, MP3-CDs, 12:45 – 1:15 E-Discovery Update — Daniel W. and DVDs. Contact the IDC office at 800-232-0169 or Farroll, Hepler, Broom, MacDonald, [email protected] for more information. Hebrank, True & Noce, LLC

1:15 – 1:45 Cook County Update — Questions? Phone: 800-232-0169 Honorable William D. Maddux, Law Fax: 217-585-0886 Division, Circuit Court of Cook County Email: [email protected] 1:45 – 2:15 Insurance Law Update — Amber Coisman, Tressler, Soderstrom, Maloney & Priess, LLP

(Continued on next page)

91 IDC Quarterly

2009 Spring Defense Tactics Seminar (Continued)

Amber Coisman is an associate at Tressler, Presenters Soderstrom, Maloney & Priess, LLP, who practices in the areas of insurance coverage and commercial Mary Andreoni is Administrative Counsel for the Illinois Attorney litigation. Her experience includes representing Registration and Disciplinary Commission (ARDC). She supervises primary and excess insurers in state and federal the ARDC Ethics Inquiry Program and is the director of the Illinois declaratory judgment actions involving underlying Professional Responsibility Institute where she is also an instructor. claims of trademark and trade dress infringement, In addition to her public speaking responsibilities on behalf of the personal injury, property damage, sexual abuse and employment Commissioner, she has authored several articles including the ARDC discrimination. She is a graduate of Boston University School of Law publication, Client Trust Account Handbook (Rev. Dec. 2001). Prior to and the University of Wisconsin-Madison. Amber is admitted to the joining the Commission in 1994, Ms. Andreoni was a law clerk to state bars of Massachusetts and Illinois, and a member of the American Illinois Appellate Court Justice Mel R. Jiganti and later practiced and Chicago Bar Associations and the Illinois Association of Defense commercial litigation with the law firm of Peterson & Ross in Chicago. Trial Counsel. While in practice, she also served on the ARDC Inquiry and Hearing Boards. Daniel W. Farroll is a partner in the Edwardsville, IL office of Hepler, Broom, MacDonald, Hebrank, True & Since her admission to the bar, Victoria Benson of Noce, LLC. Mr. Farroll is licensed in both Illinois and Cuisiner Farahvar & Benson has been involved in a Missouri and has experience in State and Federal wide variety of litigation matters, including toxic tort Courts in the Bi-State area. He is a member of the defense, construction, product liability, employment Illinois State and American Bar Associations, The law, premises liability, municipal law, civil rights Missouri Bar, and the Illinois Association of Defense defense, and insurance coverage in Illinois State Trial Counsel. His experience covers a range of personal injury and Courts, including Cook, DuPage, Lake and Will toxic tort litigation including Structural Work Act, medical malpractice, Counties, and in the U.S. District Courts for the Northern and Southern nursing home liability, products liability and general negligence law. Districts of Illinois. Her recent appeal on the issue of indemnification has helped to create precedent with the Illinois Supreme Court. Victoria Margaret M. Foster is a partner at the Chicago received her undergraduate degree in English Literature from Loyola firm of McKenna Storer. Ms. Foster focuses her University Chicago, graduating cum laude. She received her J.D. from practice in Toxic Tort, Mass Litigation, Premises the University of Illinois College of Law. She is admitted to practice in Liability, Product Liability, Complex Claims, Illinois, the U.S. District Court for the Central District of Illinois, and Construction and Appeals. A member of the IDC the U.S. District Court for the Northern District of Illinois. Victoria is Board of Directors, Ms. Foster has also served as also a member of the Federal Trial Bar. President of the Women’s Bar Association of Illinois and the National Association of Women Lawyers. Ms. Thomas F. Boleky, a trial attorney at Corboy & Foster earned her B.A. in 1979, M.A., with honors, in 1980 and Demetrio since 1994, concentrates his practice in her J.D., with honors from the University of Arkansas. serious personal injury and wrongful death litigation, including cases arising from automobile collisions, Karen L. Kendall began her legal career with Heyl, construction negligence, premises liability and product Royster, Voelker & Allen in 1984 after serving as law liability. A member of the American Association for clerk to the Honorable Jay J. Alloy, Presiding Justice, Justice, Illinois Trial Lawyers Association and Illinois Illinois Appellate Court, Third District. Previously, she State Bar Association, Tom serves on the Chicago Bar Association’s served as law clerk to the Honorable Howard C. Ryan, Judicial Evaluation Executive Committee as Chair of Investigators Chief Justice, Illinois Supreme Court, 1981-1982. and the American Bar Association’s Forum on Air and Space Law. He Karen concentrates her practice in appellate advocacy is a member of the Civil Litigation Advisory Committee for the Illinois and leads the firm’s appellate advocacy team. She has handled nearly Institute for Continuing Legal Education and has served as a moderator 300 state and federal appeals resulting in published decisions, and judge for the DePaul College of Law Moot Court Society. including nearly 40 cases in the Illinois Supreme Court. A Fellow since 1997, Karen is presently Secretary of the American Academy of Shane M. Carnine is an associate in the Mt. Vernon Appellate Lawyers, and is past president of the Illinois Appellate firm of Campbell, Black, Carnine, Hedin, Ballard & Lawyers Association, past chair of the Appellate Advocacy Committee McDonald, P.C., where he represents defendants in of the Tort and Insurance Practice Section of the American Bar civil litigation and appeals. After receiving his J.D. from Association, and past chair and present member of the Amicus the Southern Illinois University School of Law, Mr. Committee of the Illinois Association of Defense Trial Counsel. She Carnine served as a judicial clerk in the Utah Court of also served as an associate member of the Illinois Supreme Court Appeals. He is a member of the IDC and the Illinois Committee on Civil Jury Instructions. State Bar Association, and is the current president of the Jefferson County Bar Association.

92 First Quarter 2009

2009 Spring Defense Tactics Seminar (Continued)

Honorable William D. Maddux graduated from the Craig Unrath is a partner in Heyl, Royster, Voelker & University of Notre Dame, Indiana where he received Allen’s appellate advocacy group. He has extensive his Bachelor of Arts degree in 1957. He continued his experience in handling medical malpractice, insurance education at the Georgetown Law Center, Washington coverage, civil rights, contract and tort law appeals in D.C. He graduated from Georgetown Law in 1959 with the Illinois Appellate Courts and the Illinois Supreme a Juris Doctor degree. He then began his legal career Court and is the firm’s primary appellate advocate in in 1960 as a partner with the firm of Kirkland & Ellis. In the Seventh Circuit U.S. Court of Appeals. Craig is 1975 he started his own firm, William D. Maddux Ltd. (now Johnson & the current past president of the Appellate Lawyers Association. He Bell). In 1979 he practiced as William D. Maddux & Associates on the speaks regularly on brief writing and developments in federal appellate side of plaintiffs. In 1991, he was appointed to the Circuit Court of practice and has written articles for the Illinois Institute of Continuing Cook County, and was elected to a six year term. He served as Legal Education and the Defense Research Institute. Supervising Judge, Abuse and Neglect, Juvenile Division of Circuit Court from February 1994, to February 1995. From February, 1995 to The Honorable Franklin U. Valderrama is an October 2001 he served in the Circuit Court with an individual calendar Associate Judge in the Circuit Court of Cook County, in the Law Division. From October 2001 to the present he serves as currently assigned to the Chancery Division’s the Presiding Judge of the Law Division in the Circuit Court of Cook Mortgage Foreclosure/Mechanics Lien Section. Prior County. He is a member of the American College of Trial Lawyers, to becoming a judge, he was a Partner and Society of Trial Lawyers, American Bar Association, Illinois State Bar accomplished trial attorney at Sanchez, Daniels and Association, and the Chicago Bar Association. Hoffman, where his practice included transportation, FELA, construction, premises liability, product liability and insurance Dr. Sandra Metzler, of SEA, Ltd., received her Doctor defense litigation. Prior to working at Sanchez, Daniels & Hoffman, of Science degree in Mechanical and Biomedical he was an associate at Leahy & Donvan, a plaintiff’s personal injury Engineering, and her Master of Science in Mechanical law firm. Judge Valderrama has been a Speaker at the Illinois Institute Engineering, both from Washington University, and for Continuing Legal Education and the Illinois Association of Defense her Bachelor of Science degree in Mechanical Counsel’s Rookie Seminar. Judge Valderrama received his law degree Engineering from Purdue University. She conducts from the DePaul University College of Law. design and failure analysis of biomedical and mechanical devices and products. She performs accident and failure Timothy Weaver, an Equity Partner with the Chicago investigation and analysis on mechanical systems, including vehicle firm of Pretzel & Stouffer, Chartered, has over 25 years and industrial accident reconstruction, biomechanical analysis of injury of experience in catastrophic injury trial work with more mechanisms, injury reconstruction and causation analysis. Dr. Metzler than 60 jury verdicts in Illinois and Wisconsin. He also provides expertise in the areas of occupational biomechanics, received his education at Brown University, A.B., cum ergonomics, and human factors engineering. She is a member of the laude, Department Honors, History, 1971, and the American Society of Mechanical Engineers, Biomedical Engineering University of Illinois, J.D., 1974. He served as General Society, Society of Automotive Engineers, Human Factors and Editor and chapter author for the textbook Medical Malpractice Ergonomics Society, and the American Society for Testing and published in 1988 by the Illinois Institute for Continuing Legal Materials. Education. In 1996 he again served as General Editor and chapter author for the new IICLE text, Medical Malpractice. John Robertson is a shareholder of the Robertson, Wilcox & Statham, P.C. firm and focuses his practice Honorable James B. Zagel was appointed United States District in trial and appellate litigation, insurance coverage and Judge by the President in 1987. He was Director of two Illinois defense. Mr. Robertson received his undergraduate Departments, Revenue and later State Police, after serving as degree from Ripon College in 1968. From 1968 to Executive Director of the Illinois Law Enforcement Commission, 1972, John served in the U.S. Army, (Capt., Armor) appointments made by Governor James R. Thompson. Judge Zagel and served in Vietnam. He obtained his J.D. in 1975 was an Assistant State’s Attorney for Cook County, Chief Assistant from the University of Illinois. John is a member of Knox County, Illinois Attorney General for Arizona, Chief Prosecuting Attorney for the State and American Bar Associations. He was a member of the Illinois Judicial Inquiry Board, and Assistant Attorney General of Insurance Law Section Council of the ISBA between 1979 and 1987, Illinois. Judge Zagel was a member of the Codes of Conduct and a member of the ISBA Standing Committee on Public Relations Committee of the United States Judicial Conference, a member of from 1982 to 1983. From 1979 through 1996, Mr. Robertson served the Committee on Criminal Discovery Rules of the Supreme Court as a member of the Illinois Supreme Court Committee on Jury of Illinois, a member of the Task Force on Criminal Appeals, Appellate Instructions in Civil Cases. John is a member of the Illinois Association Review of Sentences and Post-Conviction Remedies of the American of Defense Trial Counsel, the Appellate Lawyers Association of Illinois, Bar Association. Judge Zagel received his B.A. and M.A. degrees and the Local Rules Committee for the United States District Court, from the University of Chicago and his J.D. from Harvard University in Central District of Illinois. 1965. He has presided over many noted cases including Lexecon Inc., et al. v. Milberg Weiss, et al. (Continued on next page) 93 Registration Spring Defense Tactics Seminar Through February 1 – Friday, March 13, 2009 January 30, 2009 March 13, 2009

IDC Members $200 $250 Attendee Member # Non-Members $335 $385 Judge $25 $25 Badge Name

Registration for this event includes seminar materials, Firm CLE credit, access to our Exhibit Hall, refreshment Address breaks, lunch and great networking opportunities. City State Zip

CLE Credit Direct Line

The IDC will apply for the following credit for this event: Firm Line CLE Credit Professionalism Credit Fax Line Illinois 6.25 0.5 Indiana 6.25 0.5 Email Missouri 7.5 0.6 Bar Number IL: MO: Wisconsin 7.5 0.6 IN: WI:

Refund Policy Special Dietary/Accessibility Needs Refunds must be requested in writing and will be made according to the following schedule:

100% Refund Through January 30, 2009 50% Refund February 1 – 28, 2009 No Refund March 1 – 13, 2009 Registration

Substitutions for your registration may be made. However, IDC Members ($200 through Jan. 30; $250 Feb. 1 – Mar. 13) ...... $ only one copy of seminar materials will be offered per registration. Please submit substitution information in Non-Members ($335 through Jan. 30; $385 Feb. 1 – Mar. 13)...... $ advance of the seminar. Judge ($25) ...... $ Please complete this registration form and return it as soon as possible to: Total Amount Due $

Payment Information My check, number is enclosed for $

Please charge $ to my:

❑ Visa ❑ MasterCard ❑ AmEx ❑ Discover

Card #: PO Box 3144 Springfield, IL 62708-3144 Exp: / Card Security Code:

Questions? Name as it appears on card: Phone: 800-232-0169 Credit Card Billing Address: Fax: 217-585-0886 Email: [email protected]

94 Illinois Association of Defense Trial Counsel MEMBERSHIP APPLICATION Individuals seeking membership in the Illinois Association of Defense Trial Counsel must meet the following qualifications: Any person (A) who is a member in good standing of the Bar of the State of Illinois, and; (B) who is engaged actively in the practice of law, either privately or on behalf of his/her corporate or governmental employer, and; (C) who is of high professional standing; (D) who devotes a substantial portion of his or her professional practice to the representation of business, corporate, governmental, insurance, professional or individual civil litigants involving tort, contract, insurance, employment, municipal or business matters, and does not, for the most part, represent plaintiffs in personal injury litigation, or; (E) any person who is currently enrolled in an ABA accredited law school; who will support the purpose of the organization, and; who desires to receive the benefits of law student membership shall be eligible to apply for membership in this association.

MEMBERSHIP DUES <3 Years 3-5 Years 5-10 Years 10+ Years In Practice In Practice In Practice In Practice Attorneys $100 $135 $195 $225 Governmental Attorneys $75 $100 $160 $190 Law Students $20

APPLICANT INFORMATION – ATTORNEYS & GOVERNMENTAL ATTORNEYS

Prefix First Middle Last Suffix Designation Firm or Government Agency Address City State Zip Code County Firm or Agency Line Direct Line Fax Line Email Website Principal Area of Practice # of Attorneys in Firm Admitted to the Bar in the State of Year Bar # IDC Sponsor Name and Firm Law School Admitted to the Bar in the State of Year Bar # Home Address City, State, Zip Code Home Phone Alternate Email Address

APPLICANT INFORMATION – LAW STUDENTS Prefix First Middle Last Suffix Designation Law School Anticipated Graduation Date Address City, State, Zip Code Phone Alternate Address City, State, Zip Code Phone

BIOGRAPHICAL INFORMATION IDC is committed to the principle of diversity in its membership and leadership. Accordingly applicants are invited to indicate which one of the following may best describe them: Race Gender Birth Date

In addition to joining the IDC, you can take advantage of the DRI Free Membership Promotion! As a new member of IDC and if you’ve never been a member of DRI, you qualify for a 1 year free DRI Membership. If you are interested please mark the box below and we will copy this application and send it to DRI. Also, if you have been admitted to the bar 5 years or less, you will also qualify to receive a Young Lawyer Certificate which allows you one complimentary admission to a DRI Seminar of your choice. ❍ Yes, I am interested in the Free DRI Membership! (Application continued on next page) 95 Illinois Association of Defense Trial Counsel COMMITTEE INVOLVEMENT All substantive Law Committees are open to any IDC member, and the IDC Board of Directors strongly believes that all members should participate in at least one of these committees. Event and Administrative Committees are generally small committees and usually are appointed by the Board of Directors. If you are particularly interested in one of these smaller committees, please indicate such on this form. Your name will be sent to the committee chair and your interest will be noted on your membership file. The IDC Quarterly is always interested in new authors for columns or articles. Please contact the IDC office or the Editor in Chief if you are interested in working with this group. SUBSTANTIVE LAW COMMITTEES Substantive Law Committees Substantive Law Committee responsibilities include, but are not limited to the following: Committees are to meet regularly, and at the Spring Defense Tactics Seminar; Each committee is responsible for writing one Monograph for the IDC Quarterly, and to submit other articles, as warranted; Committees are to keep abreast of current legislation and to work with the IDC Legislative Committee; To be a resource for seminar committees for speakers and subjects; To conduct, as a committee project, a break-out session at the Fall Conference, and; If and when certain issues arise that would warrant a specific “topical” seminar, the committee should with board concurrence, produce such a seminar. Please select below the committees to which you would like to apply for membership: ❍ Civil Practice & Procedure ❍ Insurance Law ❍ Products Liability ❍ Commercial Litigation ❍ Medical Liability ❍ Professional Liability ❍ Employment Law ❍ Municipal Law ❍ Workers’ Compensation EVENT COMMITTEES ❍ Spring Defense Tactics Seminar ❍ Trial Academy ❍ Fall Conference ADMINISTRATIVE COMMITTEES ❍ Amicus / Appellate Law ❍ Committee on Judicial Independence ❍ Membership ❍ Diversity ❍ Legislative ❍ Young Lawyers ❍ IDC Quarterly

MEMBERSHIP COMMITMENT By providing a fax number and email address you are agreeing to receive faxes and emails from the association that may be of a commercial nature. I certify that I am actively engaged in the practice of law, that at the present time a substantial portion of my litigation practice in personal injury and similar matters is devoted to the defense or that I am currently enrolled in an ABA accredited law school.

Signed Date

MEMBERSHIP INVESTMENT * Recommended Amount: Membership Dues...... $ <3 years in practice ...... $15 Voluntary Political Action Committee Donation *...... $ 3-5 years in practice ...... $25 5-10 years in practice .....$55 Total Amount Due ...... $ 10+ years in practice ...... $75

PAYMENT INFORMATION ❍ Enclosed is my check # in the amount of $ ❍ Please charge my credit card in the amount of $ Credit Card # Exp. Date / Card Security Code Name as it appears on the Card: Billing Address City, State, Zip Code Thank you for your interest in joining the Illinois Association of Defense Trial Counsel. Your application will be presented to the Board of Directors for approval at their next regular meeting. Until that time, you have any questions, please contact the IDC office at: Illinois Association of Defense Trial Counsel PO Box 3144 • Springfield, IL 62708-3144 • P: 800-232-0169 • F: 217-585-0886 • E: [email protected] • W: www.iadtc.org Illinois Association of Defense Trial Counsel

MEMBERSHIP BENEFITS • Annual Spring Seminar in Chicago, theBenefits Defense Tactics Seminar, featuring speakers on topics of current interest to the civil defense bar and law updates on areas of law of interest to our members. The seminar is attended by members and business representatives from all parts of the state; • Annual Trial Academy, at which trial skills, tactics and techniques are taught by experienced members of the civil defense bar. Open only to member-sponsored attendees; • The IDC Quarterly, our law review quality publication on current legal topics and matters of interest to our members and our individual clients and the business community we represent; • Regular newsletters from our substantive committees focusing on legal topics of interest in civil practice, employment, municipal, products liability, business, medical liability, professional liability, and insurance; • Topical seminars presented by our substantive committees for those members practicing in specific areas; • Legislative liaison to the Illinois General Assembly for the civil defense bar; • Amicus curiae briefs in appellate cases of significance and importance to the civil defense bar; • Position papers and monographs prepared for presentation and publication on current issues of legislation affecting civil litigation; • Support for and participation in the National Association of State and Local Defense Groups, held in conjunction with the Defense Research Institute, Inc.; • Searchable Online Member Database; • Political Action Committee incorporated under the name: Defense Trial Counsels’ Political Action Committee.

HISTORY OF THE IDC The Illinois Association of Defense Trial CounselHistory was organized to provide continuing education for civil and defense lawyers. It has continued in and expanded that role for 40 years. The genesis of the IDC was the first Defense Tactics Seminar, held in Chicago in November, 1964. The first Seminar was devoted to the defense of personal injury litigation. It attracted more than 700 attendees, and the enthusiasm generated by the program led the sponsors to examine the possibility of forming a permanent organization designed to protect and further the interests of the defense bar and its clients. Bylaws were prepared and adopted in late 1964, and the organization which later became known as the Illinois Defense Counsel was on its way. From that small group has grown an organization of about 1000 members which conducts numerous seminars, a multi-state trial academy, publishes the IDC Quarterly, a quarterly law review, has an active legislative program, presents amicus curiae briefs on significant topics, and is managed by a professional director. These activities are guided by five officers and eighteen directors, including representatives of Chicago, the suburbs and downstate Illinois. These directors are elected by ballot of the membership. The officers are elected by a majority of the directors.

PURPOSE OF THE IDC The purpose of the IDC is to be the preeminentPurpose association of defense trial attorneys and voice of the defense bar in Illinois, and to serve the business and professional interests of its members.

STATEMENT OF CORE VALUES • IDC will promote and support a fair, unbiased andValues independent judiciary • IDC will take positions on issues of significance to the defense bar and advocate and publicize those positions • IDC will promote and support the fair, expeditious and equitable resolution of disputes, including preservation and improvement of the jury system • IDC will provide programs and opportunities for professional development to assist members in better serving their clients • IDC will increase its role as the voice of the defense bar of Illinois to make IDC more relevant to its members and the general public • IDC will support diversity within our organization, the defense bar and the legal profession 2009CALENDAR of Events

● March 13, 2009 Spring Defense Tactics Seminar Standard Club • Chicago, IL

● May 1, 2009 Diversity Seminar / Ethics and the Legal Profession Seminar University Club of Chicago • Chicago, IL

ILLINOIS ASSOCIATION OF DEFENSE TRIAL COUNSEL LAW • EQUITY • JUSTICE

Illinois Association of Defense Trial Counsel Presorted P.O. Box 3144 Standard Springfield, IL 62708-3144 U.S. Postage PAID Permit No. 650 Springfield, IL