Illinois Lawyer Blog

A Cook County jury recently awarded $16.5 million dollars to the family of a Cicero woman who died of a drug overdose while using a pain-killer skin patch. Janice DiCoslo was using a prescribed Duragesic patch when she died on February 15, 2004. In a normal patch, a gel containing fentanyl is released into the body slowly through a layer of film. Some of the patches were defective however, and the layer of film didn't completely cover the gel. As a result, the gel would leak out. Users of defective patches were vulnerable to overdoses of fentanyal, which can cause complications ranging from drowsiness to death.

The very day that DiCosolo's husband reported his wife's death, a recall of the defective patches was announced. The patch DiCosolo was wearing at the time of her death came from the recalled batch. Jurors reportedly found that the manufacturers of the patch, Janssen Pharmaceutical, Inc and ALZA Corporation were aware of the problems with the patch. the defendants have vowed to appeal the award.

Kara Spak had an article in the November 18 Chicago Sun-Times about the horrible consequences suffered by a young woman after kidney transplant surgery at the University of Chicago Hospital. The 33 year old woman, indentified only as Jane Doe, received a kidney from a male donor in January of 2007. The donor was reportedly a homosexual who died in an auto accident. Shortly after the transplant, Ms. Doe was diagnosed with HIV and hepatitis C.

Ms. Doe recently sued the hospital and surgeon. She is alleging that the surgeon, Dr. Richard J. Thistlewaite as well as others, knew the donor was gay but did not advise Ms. Doe. Male to male sexual contact is considered by the Centers for Disease Control[CDC] to be high risk behavior and must be revealed to the potential recipient, unless the transplant surgery takes place in an emergency situation.

Ms. Doe had previously rejected two kidneys and her condition at the time of transplant in question was not life-threatening. Ultimately, her body rejected the kidney from the gay donor as well. She is now on dialysis, and receiving HIV treatment. According to the lawsuit, had Ms. Doe known that the donor was a homosexual, she would have declined the transplant.

Three other patients received organ donations from the same donor who provided the kidney to Ms. Doe. All four have been diagnosed with HIV and hepatitis C.

Plaintiff Hilario Mercado Jr. went to a family birthday party on September 27, 2003. As so often happens at family parties, a fight broke out and the Addison Police were called. Upon their arrival, Mercado and another person were leaving. One of the officers requested ID and Mercado presented his state ID. The Police ran Mercado's name, race, sex and date of birth and learned that a "no bond" warrant had been issued for Mercado on a retail theft charge. The DuPage Sheriff was contacted and it was confirmed the warrant was still valid. The DuPage warrant provided information as to the Mercado's name, date of birth, driver's license, social security number, eye color, hair color, height and weight. The officers explained the warrant and arrested Mercado. Mercado claimed that he insisted that he was not the subject of the warrant, had never been arrested and had never missed court. [Later it was learned that Mercado's identity had been stolen and the person who failed to appear was not Mercado, but someone named Ruben Vasquez]. The Police denied that Mercado claimed he wasn't the subject of any warrant. Mercado was taken to jail. A couple of days later he appeared in court but didn't mention any mistaken identity. He did request a court-appointed attorney. Later that day Mercado contacted his own attorney who attended a subsequent hearing on the case. At that time a fingerprint analysis was ordered and it was finally revealed that Mercado was not the person who had committed the retail theft. Mercado was later released. Some time later he sued the Village of Addison for false arrest. The defendant moved for summary judgment, arguing that it had probable cause to arrest Mercado. The trial court granted the motion and Mercado appealed.

Plaintiff argued on appeal that the motion for summary judgment should not have been granted, as there were factual questions whether the officers had a duty to investigate his claims of mistaken identity. The defense, in response, asserted that the officers acted in good faith, as the warrant named Mercado and the identifying information on the warrant was correct. In addition, the Village argued that at the time of the arrest[2:30 am]there was no way to investigate the claims of mistaken identity.

The Second District Appellate Court first noted that to succeed on the false arrest claim, the plantiff had to show that he was arrested without any reasonable grounds to believe an offense had been commmittted. [And the Court also noted that because Village had immunity under the Local Governmental and Governmental Employees Tort Immunity Act for any acts or omissions in the enforcement of a law, the plaintiff was obligated to show the officers conduct was wilful and wanton].

The Appellate Court felt that the key issue was whether the the officers reasonably believed Mercado was the fellow named in the warrant. The trial court felt they had - and the Appellate Court agreed. The Court noted that all the info on the warrant[name; DOB; address; Driver's License number; Social Security number; eye color; hair color; height and weight] all matched plaintiff's information. In short, the officers had every reason to believe that they had the right guy. Because Mercado was the individual named in the warrant, the Appellate Court ruled the the officers did not act unreasonably in arresting him. The trial court's ruling was affirmed.

Last week the Illinois Supreme Court heard argument on the constitutionality of the 2005 Illinois legislation capping damages in medical malpractice cases. The law caps non-economic[pain and suffering]awards against doctors are $500,000. In addition, the law caps similar damages against hospitals at $1million.

The argument against caps is twofold. First, caps violate the separation of powers doctrine. The law permits legislators to invade the judicial branch and arbitrarily establish limitations on verdicts. The only body that should ever be allowed to set damages due to medical malpractice is a jury - those individuals who actually sat in the courtroom and heard and saw the evidence and the devastation that victims of malpractice suffer. In addition, caps violate the Illinois Constitution prohibition as to "special legislation". Article IV, Section 13 of the Illinois Constitution says it is impermissible for the State to treat groups of people in different ways. Caps do precisely that - they limit damages that victims of medical malpractic may recover, while not placing a similar ceiling on the damages that victims of different kinds of negligence may recover.

The proponents of caps trot out the same "scare 'em" tactics that were so successful in 2005. Back then, caps supporters insisted that malpractice premiums and huge verdicts were causing doctors to flee Illinois in droves, thereby reducing healthcare opportunities for Illinois citizens. Those arguments have been thoroughly debunked. The number of doctors in Illinois has steadily risen since 1996, according to the American Medical Association[and they should know, shouldn't they?].

Caps have no place in the legal system. The courtroom remains one of the very few places in America where ordinary citizens can bring behemoth corporations and the insurance companies behind them to justice. If caps become the law of the land in medical case, it won't be long before other interest groups mount up to limit damages consumers can get in other cases. Hopefully the Supreme Court will shoot this law down.

A recent study in the Journal for Empirical Legal Studies suggests that plaintiffs should strongly consider accepting settlement offers and NOT going to trial. Law Consultant Randall Kiser and Cornell Legal Professor Jeffrey Rachlinski analyzed over 2000 civil cases from 2002 through 2005. According to the study, 61% of those plaintiffs received less in damages than the pre-trial settlement offer. Conversely, only 24% of the defendants were hit with damages larger than the pretrial offer.

First, I haven't read the entire study, and quite frankly probably never will. [I have serious reservations that anything published in the Journal of Empirical Legal Studies is a fun read.] Secondly, I am not sure what type of lawsuits were studied. But the results are hardly earth-shattering. In personal injury lawsuits when the plaintiff can demonstrate liability on the part of the defendant, and serious damages, those cases rarely see the courtroom. Insurance companies/defendants recognize the dangers of leaving juries decide their fates, and settle the cases for fair amounts prior to trial. If on the other hand, the plaintiff has an iffy liability case, and/or limited damages, the likelihood of a large verdict is pretty remote. The defense recognizes that and is much more comfortable trying the case. Any pretrial offers will be correspondingly small, leaving the plaintiff little choice but to try the case. And, more often than not, tough cases result in defense verdicts. So the results of the study shouldn't come as a huge suprise. More importantly, the study shouldn't dissuade those people with strong cases from pursuing them to verdict.

The Catholic Diocese of Peoria , Illinois is claiming that personnel decisions regarding priests are confidential, and not subject to civil court review. This latest turn in the Catholic Church sex abuse crisis arises out of a lawsuit recently filed againts the Peoria Diocese by Andrew Ward. Ward, age 20, filed suit in June, accusing now retired Monsignor Thomas Maloney of sexally abusing him at Epiphany Catholic Church, located in Normal, Illinois, between 1995 and 1996. The Diocese recently filed responsive pleadings seeking dismissal of the lawsuit. The Church apparently argued that it is Constitutionally-protected from disclosing church policies on hiring, supervision and termination of priests. The Church further argued, that if the lawsuit were allowed to go forward, Courts could be asked to evaluate Catholic Church doctrine and religious principles relating to personnel decisions. Precisely the point. Civil juries should be allowed to evaluate, and if appropriate, award damages against those Dioceses that knowingly permit serial predator/priests to posted in positions where they have ready, unsupervised access to children. This "Constitutional" argument is simply the latest argument offered by the Church to avoid facing responsiblity for the appalling way pedophiles priests were simply reassigned to different parishes and word of their activities buried by the Church.

Not suprisingly, apparently Peoria Diocese officials were aware of allegations made against Maloney by a young woman before he was assigned to Ephiphany parish.

According to an article in the November 7, 2008 Chicago Sun-Times, approximately 500,000 diabetic syringes are being recalled. The article, written by Monifa Thomas, notes that the manufacturer,Covidien, recalled 4,710 boxes of single use ReliOn syringes, sold at Wal-Mart and Sam's Club, between August 1 and October 8. According to the Food and Drug Administration[FDA] notice, use of the syringes may lead to the patient receiving more than twice the recommended dosage. The recall applies to 31 gauge, 1cc ReliOn Insulin syringes from lot number 813900. The product number is 38396-0403-02. The FDA has reported one adverse reaction. For more information, consumers are urged to contact Covidien at 866/780-5436, or go to the Relion recall website.