Illinois Lawyer Blog

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.