Illinois Lawyer Blog

Saw another story in the July, 2009 American Bar Association Journal worth noting. Solo and small firm lawyers are getting creative in how they seek business. Many are now turning to craigslist as a practice-building tool.

Craigslist is an enormous classified advertising website, featuring ads from throughout the United States, as well as some outposts in Europe. And it includes a legal services section that is getting increasing traffic from lawyers looking to snare web-savvy clients. According to the article, written by Ed Finkel, the Chicago site had over 100 attorney ads posted on a single day in April, 2009.

Jonathan Stein, an Elk Grove, California solo, has been posting on the site for three years. Stein claims that he gets 5-10 calls a week from his ad, and claims 80% of those calls actually translate into work. Stein admits however that there is a learning curve. "It does take a little while to figure out how to use it effectively. I probably spent my first six months getting a lot of garbage phone calls." Stein is a believer though - claiming that he only spends 10 minutes per week on his ad and that the return on his investment is "immeasurable".

The article also mentioned Susan L. Beecher, a solo practicing in Kent, Washington. Ms. Beecher's practice includes family law and she began posting ads on craigslist about a year ago. Since that time her ads have brought in 25-30 clients.

If you are looking to advertise on craigslist, you need to mindful of their rules. The site does not allow more than three ads within 48 hours, and lawyers can't place ads in multiple cities. Stein warns not to trifle with craigslist devotees. "The hard-core craigslist users will flag your post if they don't like it and then your posts start disappearing. They get offended if they think you are spamming the list."

The July, 2009 ABA Journal recently had a blurb about an interesting ruling from a federal court judge in Philadelphia. Donna Donovan went to Idant Laboratories in New York to purchase sperm in order to have a child. [Didn't know you could purchase that item]. In any event, after the purchase, Donna gave birth to daughter who is mentally disabled. Donna sued Idant, on behalf of her child, claiming that the sperm she purchased was defective, as it contained a genetic defect known to cause mental impairment and other problems.

Judge Thomas O'Neill recently ruled that Brittany's mother could sue Idant on both a product liability and contract theory. Judge O'Neill held that the a contract was created between Donovan and Idant in New York. In addition, he found that Idant's screening of the semen also took place in New York. Consequently, New York law would apply to Donovan's claims.

O'Neill's ruling was particularly critical as to the products case. New York, unlike many other states, does not have a broad "blood shield law" excluding providers of sperm from product liability actions.

According to New York University law professor Mark Geistfield, O'Neill's decision is the first to hold that semen is product subject to strict liability.

Idant has filed a motion to reconsider.

The Journal's article, written by Mark Hansen includes an interesting graphic - a bunch of men lined up in front of a "DEPOSIT' sign. Nice.

According to an article by Abdon M. Pallasch in todays Chicago Sun-Times, Bob Rohrmann,
the owner of 26 Honda, Toyota and Lexus automobile dealerships in Illinois and Indiana, is suing a plastic surgeon who carried on an affair with his wife for "alienation of affection." Rohrmann[famous for his signature roar at the end of commercials] and his third wife Ronda, were married in 2002. They had met at the Rohrmann's Oak Brook Toyota dealership.

At some point after the marriage, Rohrmann saw some emails that had been exchanged between his wife and the surgeon. He concluded they were having an affair and filed for divorce. The couple reconciled, but several months later Rohrmann again spotted some suspicious emails between his wife and the surgeon. Not long thereafter, Ronda Rohrmann filed for divorce.

In response, Rohrman filed his "alienation of affection" lawsuit. These types of cases are not the easiest to prove. Rohrman will have to demonstrate: 1) that his soon to be ex-wife did in fact have love and affection for him; 2) overt, wilful acts on the part of the surgeon which caused Rohrman's wife to lose her feelings for Rohrman and 3) actual damages. The question becomes whether the fondness Ms. Rohrman had for her husband simply died on the vine, or was spirited away by the plastic surgeon.

Some lawyers don't place much stock in alienation cases, saying they are nothing more than an means to harass a former spouse's new love. Rohrman's attorney, Enrico J. Mirabelli, however, indicated that under the right circumstances, alienation cases have their place. Mirabelli noted that "If you play in a lion's den, you're gonna get mauled". [Excellent use of the whole lion/roar theme by Mr. Mirabelli].

Ironically, Rohrman has indicated he would still like to reconcile with his wife.

Eric Zorn of the Chicago Tribune, did not have a favorable impression of this lawsuit, as noted in his blog, Change of Subject.

Interesting opinion, Forsberg v. Edward Hospital, just came down from the Illinois Appellate Court, Second District. The plaintiff alleged that she underwent a lumpectomy on June 4, 2004 at Edward Hospital. The surgeon was Dr. Piazza. Two incisions were made - one near the armpit and one near the left breast. During surgery, sponges were used, and one was inserted into the surgical wound. Near the end of the procedure, a nurse advised Dr. Piazza that all sponges had been collected. As a result he closed and the procedure was completed.

Dr. Piazza saw the defendant on several occasions after surgery. When he felt the armpit incision was not healing, he scheduled a follow-up procedure. On July 30, 2004, during the second procedure, he discovered the sponge and removed it.

The plaintiff sued both the doctor and hospital. The hospital settled their case with the plaintiff. Dr. Piazza brought a motion for summary judgment, contending that the plaintiff had failed to disclose expert evidence that a deviation from the standard of care had occurred, as required by Illinois law. The plaintiff, in response, argued that no expert testimony was necessary, because of "common knowledge" exception to the rule requiring expert testimony in a med mal case. The "common sense" exception basically says that under certain circumstances, a juror knows, without any help from an expert, that a doctor has screwed up. And plaintiff arged that jurors would know that leaving a sponge inside a body is a breach of the standard of care. Must admit, at this point in the opinion I thougth plaintiff was in good shape. Not so fast.

The Appellate Court agreed that the "common knowledge" exception had been applied when sponges were left in the patient's body. In another 2008 decision, Willaby v. Bendersky, the Court held that even without expert evidence, a sponge left in a body established a prima facie case of medical negligence - BUT the defendant still gets an opportunity to explain just how the sponge got there. In other words, the presumption that the defendant is negligent created by the simple presence of the sponge can be rebutted.

In Ms. Forsberg's case, the Appellate Court noted that the doctor reasonably relied upon the nursing personnel[employees of the hospital] in assuming all sponges had been collected. The Appellate Court affirmed the trial court's decision to grant summary judgment on behalf of the doctor.

Much as I hate to admit it, this is a well-reasoned opinion.

[As an aside the plaintiff did offer some other arguments apart from the "common knowledge" angle. Those arguments, which are too boring to explain in an already lengthy post, were not convincing to the Appellate Court].

Finally, the Illinois legislature has done away with the ridiculous Chicago Transit Authority [CTA] notice provisions!!! Prior to June 1, 2009, anyone wishing to sue the CTA was obligated, pursuant to 70 ILCS 3605/41, to file a very specific Notice[often referred to as the "Section 41 Notice"]. The Notice was to be provided to the Secretary of the Transit Board, as well as the Office of the General Counsel of the CTA. The Notice was to include certain information, including, but not limited to the date and time of the occurrence, as well as the precise location of the occurrence. If the information provided in the Notice was in any way incorrect, the old statute provided that the trial judge had to toss the case - even if the mistakes were of a technical nature, with no impact on the actual merit of the case.

But no more!! On Monday, June 1, 2009, Governor Quinn signed Senate Bill 84[CTA Section Notice Repeal] into lawl Senate Bill 84 is now Public Act 96-0012. It should be noted that the repeal only applies to causes of action accruing on or after the effective date of the the Act - June 1, 2009. The Statute of Limitations against the CTA remains one year.

Kudos to bill sponsor Senator Ira Silverstein and Representative Al Riley.

The Chicago Sun Times had an interesting story today about a new investigation tool divorce lawyers are using - GPS trackers. The article, written by Frank Main, described how a weathly suburban man hid a GPS device on the family car. The device revealed that the wife dropped the kiddies off with her father[a convicted felon] then drove to a south side motel for some private time with her lover. Not just once, but 12 times!! In the course of the subsequent divorce case the husband confronted his wife with the evidence. Wifey acknowledged her sins and asked forgiveness.

The article notes that the devices are small enough to be concealed in a glove box or seat pocket. More importantly, as long as you own the vehicle, putting a GPS tracker on it is legal. The Spyzone link above shows how small the devices are and how easily they can be deposited in a car by a suspicious husband or wife.

As Illinois is a "no fault" state, incriminating GPS evidence typically does not effect the division of assets. The GPS data may however, have other uses. Evidence showing a spouse is running around may impact custody rulings. In addition, it can be used to show a spouse was draining assets from the household bank by spending money on a boyfriend or girlfriend.

Cheating hearts should look into rental cars.

The Illinois Appellate Court[First District] recently released the Clark v. Children's Memorial Hospital decision, which clarifies what parents may recover in a "wrongful birth" case. "Wrongful birth" refers to the claim of parents who allege they would have avoided conception, or terminated a pregnancy but for the negligence of those charged with genetic counseling as to the likelihood of giving birth to an impaired child.

In the Clark case, the plaintiffs, Amy and Jeff Clark had a son, Brandon, in 1997. At 15 months of age, Brandon began showing signs of developmental problems, including poor head growth and difficulty walking and talking. In 2001 Amy sought genetic counseling from Dr. Barbara Burton to determine if Brandon suffered from Angelman Syndrome - a disorder caused by the abnormal function of the gene UBE3A , located in a small region of chromosone 15. In about 80% of those with Angelman syndrome, this small region is deleted from the maternally derived chromosone due to a mutation.

Dr. Burton informed Amy that all known genetic mutations for Angelman Snydrome in Brandon had been ruled out. That information was incorrect - in November, 2000, an analysis of Brandon's DNA had been done at Baylor College of Medicine. The analysis showed that Brandon did indeed suffer from Angelman Syndrome. Siblings of children with the mutation of the UBE3A gene[like that shown in Brandon] have a 50% risk of being borne with Angelman Syndrome.

Dr. Burton never obtained the Baylor College of Medicine results, and never informed Amy that Brandon did suffer from Angelman, due to the UBE3A mutation. As Dr. Burton incorrectly advised Amy that all known genetic mutations for Angelman Syndrome in Brandon had been ruled out, Amy planned to have another child.

On Marcy 27, 2002, Amy gave birth to another son, Timothy. In June, 2002, Amy had some concerns regarding Timothy's development. In September, 2002, Amy contacted Dr. Soma Das at the University of Chicago to discuss Timothy's symptoms. Dr. Das indicated that Timothy and Brandon should be entered into a study of Angelman syndrome, but that boys could not enter without a complete set of Brandon's records. Shortly thereafter, Amy contacted Baylor College of Medicine to get Brandon's records. On September 30, 2002 she learned for the first time that Brandon's UBE3A analysis was not normal. Subsequently, Timothy was diangosed with Angelman Syndrome.

The Clarks filed suit ffor wrongful birth, seeking damages for the extraordinary costs of caring for Timothy during his minority, and when he became of age. In addition, they sought recovery for lost wages. The trial court determined that plaintiffs could only recover damages for the extraordinary costs for caring for Timothy until age 18. The plaintiffs then appealed that decision. After a careful review of the relevant caselaw, the Appellate Court ruled that the plaintiffs could plead a cause of action for wrongful birth to recover damages for the extraordinary costs of caring for the unemancipated, disabled child beyond the age of 18.

The retaliatory discharge case recently filed by Paul Liska against his former employer, Motorola, is getting nasty. According to Wailin Wong's April 16, 2009 article in the Chicago Tribune, Motorola recently filed a motion with the trial judge alleging that Liska destroyed evidence on a Motorola laptop he used after his termination.

In a Memorandum filed with their Motion, Motorola detailed that Liska was informed on January 28, 2009 that he was being replaced. Liska was apparently last in his Motorola office on January 29, 2009. Motorola alleged that when Liska left that day, he took a company laptop and some documents. Motorola subsequently requested that the laptop be returned. When Motorola got it back it was a "blank slate". Motorola then went out and hired a forensic computer firm to analyze the laptop. The forensic experts concluded....[cue dramatic music] that a date destruction program had been run on the computer several times between January 30 and February 12.

Motorola is also asking the trial judge for permission to examine any computers Liska may have acccessed in the past year. Liska had earlier denied he took any Motorola property.

Wow. A recent Chicago Tribune by Wailin Wong detailed how a corporate marriage can go bad. Very bad.

By way of background, in early 2008, Motorola, hired Paul Liska as the new Chief Financial Officer. Motorola's flagship mobile phone unit, which once was on the cutting edge with innovations like the Razr cellphone, had taken on water and needed to get back on track. The plan was to separate the mobile phone division from the other Motorola business groups. The thought was that Liska's background as a corporate dealmaker would prepare Motorola for the eventual separation of the phone unit.

Things apparently came to a boil in January of 2009. An important meeting was scheduled for January 28, 2009. Liska was to make a presentation at that meeting. According to Liska, he was concerned that certain Motorola financial forecasts were flawed and that Motorola had limited credibility with credit ratings agencies. Liska claims he shared those concerns with CEO Greg Brown prior to the presentation. At the January 28, 2009 meeting, Liska included those concerns in his presentation.

The next day, January 29, 2009, Lisak was shut out of a scheduled board meeting. That same day CEO Brown advised Liska that he was being replaced. And now the fur has begun to fly. Liska has filed suit against Motorola for retaliatory discharge, alleging that he was fired for attempting to bring his concerns about the flawed financial forecasts to a Motorola audit committee. Motorola, for its part, claims that Liska misrepresented his presentation to Brown and that his conclusions were misguided. In addition, Motorola claims that Liska had not been keeping abreast of the mobile business operations.

Recently unsealed court documents and filings provide some additional details on a business marriage gone bad. There was, according to Motorola, jealousy. Motorola alleged that Liska was jealous of the compensation package enjoyed by Chief Executive Sanjay Jha. Motorola additionally claims that as a result of that jealousy, Liska developed a "vendetta against Dr. Jha and the Mobile Business Devices business". And, according to Motorola, there was pettiness. Liska failed to prepare for meetings and acted "abrasive and dismissive". [I was under the impression that titans of commerce were supposed to be abrasive and dismissive - you know, like Donald Trump].

Finally, according to Motorola, the parties inevitably grew distant. Liska started talking to a headhunter and working at a private office.

Liska on the other hand, claims he was blindsided. He insists he received praise for his performance and was given additional responsibilties on the job. He denies he ever discussed the need for a new job with the headhunter.

Lastly, and not suprisingly, the parties, apparently argued about money. Lots of money. Motorola claims Liska tried to "fleece" Motorola by demanding a settlement of $37 million. Liska denies doing so. This facet of the case is particularly astonishing to me. They weren't arguing about the keys to the Executive washroom or a primo parking spot. They are arguing about whether someone demanded $37 million dollars. I repeat, $37 million dollars. Hard to imagine any ambiguity when it comes to $37 million dollars.

I suspect there will be further interesting revelations as this one winds it way through the litigation process.

The First District Appellate Court recently handed down an opinion precluding lawyers from signing Requests to Admit responses for their clients, even if the client can't be found. In Brookbank v. Olson, counsel for the plaintiff, Lauren Brookbank, served Requests to Admit regarding the reasonableness of Ms. Brookbank's medical bills on the defendant, Katie Ann Olson. Under Illnois Supreme Court Rule 216, a party may serve another party with a list of facts seeking admission of those facts. The concept behind the Request to Admit is to narrow the roster of contested issues. The party[i.e. the client] served with a Request to Admit Facts must respond within 28 days, with a signed statement denying the the matters for which admission is sought, or setting forth in detail the reasons he cannot truthfully admit or deny those matters. If the served party fails to do so, the matters set forth in the Request are deemed admitted. Brookbank's lawyers issued the Request to Admit in an effort to have the reasonableness of the medical bills admitted before trial. If they were admitted, then the bills could simply be introduced at trial with no foundation necessary.

Olson's attorneys, hired by her insurer, advised the Court they could not find their client, even after they sent an investigator out to look for her. Brookbank's counsel then moved to have the matters deemed admitted, but Olson's lawyers asked the trial court if they could sign and verify the request for their client. The Court allowed them to do so, but then directed that the issue of whether lawyers could sign for their clients be reviewed by the Appellate Court.

The Appellate Court reversed the trial court. The Court noted that the plaint language of Rule 216 calls for the sworn statement to be made by the party. The Court noted that without any client contact, the attorney's sworn statement is meaningless, as there is no indication the party signed off on the responses. The defendant did raise a good point - most clients have no idea about the reasonableness of medical bills and would have to rely on their attorney. The Appellate Court acknowledged that the ruling would leave lawyers faced with a Request to Admit in a tricky position if they can't locate their client. That issue however, they decided to leave for the Illinois Supreme Court to decide. As it stands now, lawyers can't sign for their clients.

According to a April 8, 2009 item in the Chicago Tribune, about 25,000 playpens made in China and imported by Simplicity Inc. and SFCA Inc. have been recalled. The playpen in question is known as the "Travel Tender Play Yard"[shown below]. The playpens are portable and feature a bassinet, along with a changing table. The specific defect involves a series of rails that can collapse unexpectedly, causing children to fall or become entrapped. The playpens were sold in Burlington Coat Factory stores and online at Babiesrus.com, Target.com and Kohls.com from March, 2005 through January, 2009.

The Consumer Product Safety Commission[CPSC] has initiated a recall after becoming aware of at least 5 incidents where the rails collapsed. Thankfully, no injuries have been reported. Nonetheless, the CPSC is recommending that consumers should stop using the playpens immediately and return them to the place of purchase for refund or replacement.

This isn't the first time Simplicity products have been the subject of recalls. In September, 2008 the CPSC had come under fire after failing to take appropriate action after becoming aware that two infants had died when the Simplicity Bassinet in which they were situated collapsed. The CPSC did issue a recall for the Simplicity brand items. Turns out however, that the exact same bassinet was being sold by a different company under a different name. Despite being so advised, the CPSC failed to issue a recall for those bassinets.

Recently saw an interesting article about a multi-million dollar settlement resulting from devastating injuries suffered by a little boy at a Burger King restuarant in Southern California. Back in August of 2005, Jacob Buckett,[pictured below, before the incident] then only 8, accompanied his dad and younger sister to lunch at a Burger King in Temecula, California. The particular restuarant they chose had an attached play area, with a jungle gym[known as "soft-contained playgrounds" - like the one in the photo above]. Jacob went to play on the Jungle Gym and climbed up one of the horizontal support poles. He lost his balance and fell, cracking his head on the tile floor.

Jacob suffered a traumatic brain injury which kept him in a coma for two months. He was hospitalized for a full six months. The brain damage he suffered left him partially paralyzed and with severe emotional and cognitive defects. Although Jacob is now 12, he has the maturity level of a 6 year old.

Jacob's parents sued, claiming that the franchise owner, The Breckenridge Group, and the parent company, Burger King, knew the Jungle Gym was dangerous, but didn't address the problems. Specifically, the Bucketts argued that the play area lacked "no-climb netting" and floor padding. They further alleged that the defendants were on notice about these defects because of previous incidents. The Bucketts also alleged that the owner of the franchise, failed to post warning signs and refused to retrofit the structure.

The article suggested that the defendants in their responsive pleadings suggested the Jacob's father was at least partly responsible for failing to properly supervise the child. That assertion was neutralized by videotapes showing numerous children misusing the equipment on a regular basis prior to Jacob's accident.

The parties settled the case for $20 million, which will pay for enormous and on-going medical bills, rehabilitation therapy and 24 hour attendant care for Jacob.