Illinois Lawyer Blog

From the Department of Fair Play...

On September 2, 2009, I posted about Dimitrios Biller, the former Toyota attorney who filed a whistleblower lawsuit against Toyota alleging that the car manufacturer had concealed and destroyed evidence that should have been produced in rollover cases. Not long after Biller filed his lawsuit, a class action was filed on behalf of all plaintiffs who had lost or settled rollover cases where Toyota had allegedly withheld evidence.

According to an article at Law.com, and a tweet from Craig Niedenthal, there may not be much substance to Biller's allegations. Lawyer E. Todd Tracy was allowed to review 9000 documents that Biller claimed supported his allegations that Toyota acted inappropriatedly in the rollover cases. Tracy represented a group of plaintiffs who had prosecuted cases against Toyota prior to Biller's allegations. He was hoping the Biller documents would help him re-open those cases. Tracy remarked that "...I did not see any type of concealment, destruction, or pattern of discovery abuse that affected my cases that I sought to reopen." Last week Tracy dismissed the lawsuit he had filed to resurrect the earlier cases.

A Toyota spokeperson said that Toyota was pleased that Tracy dismissed his action.

Kenneth P. Nolan writes a monthly column entitled Sidebar for Litigation, the monthly publication by the American Bar Association Section of Litigation. Mr. Nolan is a proud resident of Brooklyn, New York and a seasoned veteran of New York courtrooms. In my humble opinion his columns are the best part of Litigation. In his Summer, 2009 column[yeah, I'm a little behind in my periodical reading] he discussed Opening Statements. The entire column is worth a read. But I wanted to mention one of the points he made that I really liked.

Nolan, like many other trial attorneys suggests that you let a little argument seep into your Opening Statement. He notes:

The plaintiff has to tell the jury what he will prove. "The evidence will prove..." And what he wants. "At the end of the this trial, I want you to give a verdict for Mrs. Clark adn award her money damages.." Don't be shy. If you want a boatload of dough, tell them. You don't have to use numbers, but make sure they understand you will be asking for more than they'll ever make in five lifetimes.

....The defendant should appeal to the jurors' courage, fairness and common sense in peeking around and through the horrible injuries. American justice demands you award the plaintiff nothing. Enter judgment for my client Exxon because even large corporations that make billions and employ thousands deserve the same fair shake as you and me and all Americans.

His column alone makes the costs of Litigation worth it.

Last week the Illinois Supreme Court delayed the release of a long-awaited opinion dealing with the constitutionality of caps on damages in medical malpractice cases. The opinion in LeBron v. Gottlieb Memorial Hospital will rule on the constitutionality of the Illinois Medical Malpractice Act of 2005, which set limits on the amount of non-economic[i.e. pain and suffering]damages victims of medical malpractice can recover. The Act limits non-economic damages to $500,000 against doctors and $1 million against hospitals. No reason was provided for the delay, and no specific date was set when the ruling would be released.

Is the right to timely amend a complaint absolute? The provisions of 735 ILCS 5/2-616 of the Illinois Code of Civil Procedure seem to suggest that it is, by noting in subsection [a] that "...at any time before final judgment amendments may be allowed on just and reasonable terms...."

Additionally, subsection [c] notes that "A pleading may be amended at any time, before or after judgement to conform the pleadings to the proofs".

Until fairly recently defense lawyers very rarely challenged my efforts to timely amend complaints. That era of detente however, seems to have ended. Recently, defense lawyers have been objecting to my attempts to timely amend complaints, even when I am not adding new causes of action. The objections typically cite "suprise" or "prejudice", even if the desired amendments are simply adding facts to the complaint that have been discussed extensively in depositions. Defense objections probably are not motivated by actual suprise. Instead they are likely trying to preemptively get a ruling that certain facts can't be discussed at trial.

I expect rulings on several motions to amend in the very near future. I will find out then if I have to tweak my understanding of 5/2-616.

Putting the final touches on my response to a lengthy Rule 216 Request to Admit filed by the defendant. In reading some of the recent Illinois cases discussing what constitutes a proper response - came across some helpful information. It is NOT sufficient for responding party to simply claim a lack of knowledge as a reason for a failure to admit or deny. Instead, the answering party must make a reasonable effort to secure answers to Requests to Admit from persons and documents within the responding party's reasonable control. Requests to Admit continue to represent enormous potholes for the unwary. For additional insight, see Szczeblewski v. Gossett (5th Dist. 2003) 342 Ill.App.3d 344, 277 Ill.Dec. 1, 795 N.E.2d 368

Illinois legislators recently added a new section to the Illinois Vehicle Code banning text messaging while driving. Under Section 625 ILCS 5/12-601.2, "... a person may not operate a motor vehicle on a roadway while using an electronic communication device to compose, send or read an electronic message". The law becomes effective January 10, 2010.

Additionally, the legislature amended the Vehicle Code to bar the use of cell phones in school speed zones and construction zones. Pursuant to new language found in 625 ILCS 5/12-610.1[e], no motorist, regardless of age, may use a cell phone while driving in a school speed zone or construction zone. The amendment does carve out some exceptions. For example, it does not apply to construction workers engaged in a project in the construction zone. Additionally emergency responders, such as police, firemen and health care providers are allowed to use a cell phone for emergency purposes in a school or construction zone. The amendment also becomes effective January 10, 2010.

On Monday, the United States Supreme Court refused to hear an appeal of an $83 million dollar verdict against Ford Motors resulting from injuries suffered when a Ford Explorer rolled over. In January of 2002, Brennetta Buell-Wilson was driving an Explorer on a California highway. She swerved to avoid an object in the road and the vehicle rolled over multiple times. She was left paralyzed.

Ms. Buell-Wilson and her husband sued Ford in California, alleging the Explorer's roof was defective and the vehicle was prone to rolling over. The jury returned an enormous verdict - $364 million dollars in total, with most of the award coming in the form of punitive damages. The jury's verdict was likely driven in part by evidence they heard that the roof could have been strengthened on the Explorer model for $20 per vehicle.

The trial court and Appellate Court reduced the verdict, and in 2006 the Appellate Court set the verdict at $27.6 million dollars in compensatory damages and $55 million in punitive damages.

Ford's appeal to the United State Supreme Court was only as to the punitive aspect of the award. Ford argued that the punitive damages were unfair as it had complied with industry and governmental safety standards. Ford was joined in its appeal by the United States Chamber of Commerce. The Chamber questioned the wisdom of allowing jurors to punish manufacturers for defective products.

The Supreme Court refused to hear the appeal, allowing the $83 million dollar verdict to stand intact.