And the manufacturer is already battling a lawsuit involving injuries to another small child when that child's Croc became entangled in an escalator at JFK Airport.

In a May 20, 2008 post on the Consumer Reports blog, Consumer Products spokesperson Julie Vallese noted Crocs are a new product on the market that "...poses a risk." [Unfortunately technical difficulties precluded a link to the blog].

The Consumer Product Safety Commission recommends following certain steps in order to avoid injures on escalators. I have summarized some of those recommendations below:

1) Make sure any laced shoes are properly tied;
2) Stand in the center of the step, as entrapment can occur on the side;
3) Always hold the hand of any small child riding with you;
4) Do not permit children to play or sit on the step;
5) Do not bring strollers, walkers or similar contraptions onto the escalator;
6) Always face forward and hold the handrail;
7) Know the location of any shut-off mechanism.

James Montana, a former federal prosecutor, contributed a chapter entitled "Knowing When to Stop". Montana was representing one of a number of defendants charged with RICO violations for using the facilities of interstate commerce[i.e. credit cards] to further prostitution. The indictment charged that the defendants, through the guise of a health club, actually ran a house of prostitution. The defense was that the health club was indeed a health club. Turns out though, that particular defense wasn't very compelling. The prosecution called a slew of witnesses, all of whom testified to sexual activity inside the club. According to Montana, the defense knew it was in trouble.

One of the governnment witnesses however, didn't hurt the defense. This guy, we'll call him Mr. Holmes, worked in a bookstore owned by Montana's client. The bookstore was right next to the club and Holmes testified that he went into the health club on a pretty regular basis, over a long period of time. Nonetheless, Holmes testified he never saw any acts of prostitution taking place. Montana concluded the witness was blind, and wisely chose not to ask any questions on cross.

The attorney for one of his co-defendants however, couldn't help himself. Montana then included the following dialogue[I eliminated only the name of the place so I don't get sued].

Q: With regard to what observations you made in relation to activities going on at the health club, you would from time to time, exit the bookstore and go into the premises at the health club, correct?

COURT: That is fairly specific.

Montana writes that the laughter from the Court, the prosecutors, defense attorneys and spectators went on for several minutes.

Sometimes you just have to leave well enough alone.

I try not to denigrate anyone's skills, but we're lawyers, facilitators. Not one of us is finding a cure for cancer. Sure, we help people often in dreadful situations. But there's no reason for an end zone dance. Win your case; put your papers in your briefcase. Shake hands, or, if you're from Brooklyn, kiss cheeks. Thank the judge, the staff, and the clerk. Walk quietly out of the courthouse. Have an extra glass of wine or two. And the next day, pick up another file and begin again.

No grandstanding. Quiet confidence is the most effective. Keep your ego in your pocket. Sure, you're smarter and better than everyone else. Try not to show it all the time. Allow others a word on conference calls. Every leap year admit that another attorney's thoughts have value. Please. Include your victory on the website and in the materials that sit in your reception area. But don't let success and money change you. Be gracious. Have class. You're not as wonderful as your firm's propoganda attests. Ask your wife, your sister, your college roomie. They know.

Great advice, and not just for young lawyers.

Prior to trial the plaintiff moved to exclude any evidence that Medicaid/Medicare had paid any of her bills. At the same time, the defendant moved that plaintiff be allowed to claim only the actual paid amount of the bills, as opposed to the billed amount. The trial court granted the plaintiff's motion and denied the defense motion. The case then proceeded to trial. The jury found for plaintiff and awarded her the full amount of her actual medical bills[$80,163.47], as well as an additional amount for pain and suffering. The defense then filed a post-trial motion, asking the court to reduce the medical bill portion of the verdict from $80,163.47 to $19,005.50. The trial court granted the defense motion and reduced the plaintiff's award to the actual amount that Medicare and Medicaid had paid. The plaintiff appealed to the Fourth Appellate District Court. The Appellate Court upheld the trial court's decision.

The plaintiff then appealed to the Illinois Supreme Court. Plaintiff argued that the trial court's order violated the collateral source doctrine and was contrary to Arthur v. Catour, another recent Illinois Supreme Court decision. The collateral source doctrine basically provides that injured parties shouldn't be punished for receiving collateral source[i.e. insurance company]payments of medical bills incurred due to the negligence of others. Juries are not to be informed that a) the plaintiff was covered by insurance or b) that insurance made any payments on the plaintiff's behalf. [As an aside this fiction is somewhat outdated - most juries know there is insurance involved]. The Arthur v. Catour decision had held that a plaintiff could submit unpaid medical bills to the jury if there was sufficent foundation testimony that the bill involved was reasonable.

The Supreme Court, after much discussion, decided that the Arthur v. Catour approach was correct. Plaintiffs are entitled to seek to recover the full reasonable value of their medical expenses. The "reasonableness" requirement set forth in Arthur remains a part of the foundational requirement in order to get the bill into evidence. A paid medical bill will be presumed to be reasonable, and therefore, admissible. In order to get unpaid portions of medical bills submitted to the jury, the plaintiff will be required to present evidence[presumably testimony from an individual familiar with medical coding and billing]that the unpaid portions of the bill are indeed reasonable. The defendant is free to cross examine any witness called by plaintff to establish reasonableness and the defendant can call his own witness to offer testimony the bill was not reasonable. Defendants may NOT however, introduce evidence that the bill in question was compromised for a lesser amount. Once a bill is submitted to the jury, the jury decides if they will award all, some of none of it.

Various news agencies carried stories on Friday about the Catholic priest sex abuse scandal that is currently rocking Vermont. In May, a jury heard allegations from a former Vermont altar boy that he was abused repeatedly by Rev. Edward Paquette in the 1970s. The jury awarded the plaintiff, now in his 40's, $8.7 million dollars. The defendant, Fr. Paquette, had admitted in a 2006 deposition that he had been "sexually involved" with young boys at parishese in Indiana and Massachusetts before he applying for a position with the Burlington, Vermont Diocese in 1972. At the time, Fr. Paquette indicated he wanted to be closer to his parents, who lived in Massachusetts.

When Paquette applied for the Vermont position, Bishop Loe Pursley of the Fort Waye, Indiana Diocese advised Vermont Bishop John Marshall that Paquette had been accused of molesting young boys. Pursley further suggested that if the Vermont Diocese decided to take Paquette, he should be assigned to an institutional chaplaincy or a senior center, so he wouldn't be around children. [Documents reflecting Pursley's concerns were admitted as evidence in the trial] The Vermont Diocese however, elected to ignore that warning and assigned him to three parishes in Vermont. Paquette was subsequently accused of abusing children at each of those three parishes.

According to the victim in the recent trial, Paquette liked giving "pony rides" to the altar boys after mass. He would grope his young victims during the rides. The victim testified he was abused some 40-100 times. The victim had kept quiet for years, but decided to come forward after learning of Paquette's history and the warnings from the Indiana Diocese.

Church officials have defended their handling of abuse claims in the 1970s by claiming that at the time, it was believed that prayer and counseling would cure priests of their attraction to little boys. It is not made clear who exactly thought that prayer would cure these perverts.

In another pathetic development, the Vermont Diocese is claiming that the verdict is covered by insurance...but they just can't find the policy. No doubt they could find all kind of ancient documents damning divorce for example, but they misplaced the policy covering them for abusing children.

In yet another pathetic development, it was revealed that the Diocese had put each individual parish under charitable trusts two years ago, to shield them from what Bishop Salvatore Matano called "unbridled, unjust and terribly unreasonable assault." So the Church has elected to blame not the twisted individuals who preyed upon children, but the persons who are now seeking recovery for years of abuse.

At least three additional lawsuits are scheduled to begin in August.

Pursuant to 815 ILCS 640/1, the Personal Injury Representation Agreement Act, any plaintiff who retains counsel to represent him/her in a personal injury case, WITHIN 5 DAYS OF THE INCIDENT, may, within 10 days after the occurrence, avoid the contract by notifying the attorney, in writing of the decision to terminate the contract, via certified or regular mail.

In addition, the attorney who signs a client up within 5 days of the event leading to the injury must provide to that client a copy of the contract; an address to which the notice avoiding the contract may be sent; a copy of the Act and a written acknowledgement of receipt from the plaintiff. In addition, the 10 day period does not begin to run until the lawyer provides the documents noted.

According to the legislative history, the Act is designed to shield recently injured parties who hastily sign legal contracts without due consideration of all the relevent facts.

I have been practicing for over 2 decades and was completely unaware of this Act. So you may indeed learn something new every day.

In March of 1999, George Hudson Sr. filed suit on behalf of his son against the City of Chicago, the former City Fire Commissioner and several fire department personnel. Count I of the complaint alleged the City was negligent in responding to the call. Count II alleged the City's response amounted to wilful negligence. The City moved to dismiss Count I of the Complaint, arguing that it had immunity to negligence claims under the Emergency Medical Services Act, 210 ILCS 50/3.150. In October of 1999, the trial court granted that motion.

On July 25, 2002, plaintiffs elected to voluntarily dismiss Count II of the complaint, pursuant to 5/2-1009 of the Illinois Code of Civil Procedure. Under most circumstances[but not always!!!], a party that voluntarily dismisses all or part of a claim may refile within one year.

On July 23, 2003, plaintiffs refiled a single count complaint against the City of Chicago, again alleging wilful and wanton negligence. The City again moved to dismiss, arguing that the refiled action was barred by the doctrine of res judicata. Res judicata is a legal concept that essentially says you can't have two bites of the apple - if a court has ruled on a specific question for a specific party, that party can't refile that action. In order for res judicata to apply, one needs to show: 1) a final judgment on the merits; 2) an identity of cause of action exists[the subsequent claim is the same as the first]; and 3) the parties are identical in both actions. The Circuit Court granted defendant's motion. Plaintiff appealed and the Appellate Court affirmed the lower court decision. The plaintiff then took an appeal to the Illinois Supreme Court.

Plaintiff's argument was seemingly sound - he could't be barred by res judicata because there had never been an adjudication on the merits as to Count II - plaintiff had voluntarily dismissed it. The Supreme Court however, disagreed. Citing Rein v. David A. Noyes & Co. (Ill. 1996), 172, Ill.2ds 325, 216 Ill.Dec. 642, 665 N.E.2d 1199, the Court determined that res judicat did indeed apply. The Supreme Court ruled that if the elements necessary to res judicata are present, res judicata will bar not only every matter that was actually determined in the first case, but also every matter that MIGHT HAVE BEEN RAISED.

In determining if a matter could have been raised in the first action, the Court again looked to the Rein decision. The Supreme Court adopted Rein's holding that if a cause of action arises out of the same set of operative facts as the earlier case, it then could have been litigated in the earlier case, and, as a result, res judicata would apply. In effect, pursuant to Rein, a plaintiff who splits his claim by taking a voluntary dismissal, and then refiling part of an action after a final judgment has been entered on another part of the case subjects himself to a res judicata defense. The Court then ruled that since the wilful and wanton count did arise out of the same set of operative facts as the negligence claim, the plaintiff could have litigated the wilful and wanton claim in the first case. The court ruled that res judicata did indeed bar the second claim, even though there was no adjudication on the merits.

According to Estes, he learned upon his arrival to Springfield that he had to share a hotel suite with Wertz. Estes testified that after getting settled into the room, Wertz ordered him into the bedroom and then ordered him to take off his clothes and make love to her. Estes testified that he refused to have sex with Wertz, but did change into pajamas and laid down on the bed, where he eventually fell asleep next to Wertz.

Wertz testified that Estes volunteered to share the suite. She further testified that she stayed in the bedroom portion of the suite the entire time[alone]with the door shut.

In summing up the trial, one of the jurors noted, "...speaking for myself, I didn't believe either one of them."

The underlying facts involve a romantic relationship gone sour between the plaintiff[the office administrator] and one of the principals at the firm. In December of 2003, some months prior to plaintiff's termination, her status was changed from employee to independent contractor, pursuant to a discussion she had with a name partner at the firm. Benders claimed the change was only termporary and, after a short period of time, she was to regain her employment status. In any event, from that date until her discharge, her checks listed her as an "independent contractor".

In April of 2004, after receiving another paycheck noting her independent contractor status, plaintiff contacted Joel Bellows and reminded him that she wanted to refinance her home and needed her paystub to reflect her status as an employee. Several days later, after being informed that no change would be made, Benders advised the firm she intended to file a complaint with the IRS regarding her employment classification. Shortly thereafter, she was told to leave the firm.

In discussing the retaliatory count, the Court first noted that plaintiff was obligated to prove: 1) that she was discharged; 2) in retaliation for her activities and 3) in violation of a clear public policy. That public policy prong is not satisfied if only private interests are at stake. Defendant argued that Benders status as an employee or independent contractor involved only plaintiff's economic interests, and therefore, she couldn't show any violation of a public policy. The Court however, disagreed. The opinion notes that the federal laws classifying personnel as employee or independent contractors concern more than one employee's bank account. Those laws affect tax revenues collected by the federal government - and tax revenues are indeed a public concern. The trial court's order granting summary judgment on Count III was reversed.

Judge Larsen correctly noted that the limitation placed on damages by the legislation violated the Separation of Powers clause in the Illinois Constituation. In effect, Judge Larsen noted that the legislation impermissibly permitted lawmakers down in Springfield to interfere with the responsiblity of a civil jury - determining the fair and reasonable amount of damages that can be awarded. In effect, the Judge ruled that a bunch of legislators, sitting down in Springfield, had no business, nor any right, to insert themselves arbitrarily into the evaluation of damages aspects of lawsuits. After all, it is the jury who sits through the trial, sees the exhibits, hears the witnesses and listens to the arguments of the lawyers trying the case. Isn't the jury then, in a much better position to decide the value of a case as opposed to a legislator who knows absolutely nothing about that case?

The "tort deform" movement[i.e. insurance companies, various Republicans and other regugnant life forms] spearheaded this legislation using fabricated scare tactics about doctors fleeing the state because of the "insurance crisis". That explanation, of course, is nonsense. Premiums are going up because insurance companies have made very poor investment choices. So insurance companies had a choice - be candid with their insureds and admit they made bad business decisions, or, distract their insureds with carnival-like sideshows. The insurance choice? Go with the sideshows. That explains why you see rallies downstate with doctors in their finely pressed white smocks moaning about "runaway verdicts". The tort deformers will go to great lengths to keep their insureds in the dark.

Not suprisingly, the forces of darkness have vowed to appeal Judge Larsen's ruling. Hopefully the Supreme Court of Illinois will do the right thing and uphold her decision.

My office recently tried a case on behalf of a worker who sustained non-traumatically induced panic disorder as a result of work conditions. This individual had an underlying psychological issue that was well under control, and, importantly, the employer was well aware of the condition. Thankfully we were able to provide convincing evidence that my client was singled out for harsh treatment none of this co-workers had to endure. In addition, we presented evidence that the harsh treatment continued even after the employee complained that it was aggravating his underlying condition. My client's deteriorating physical and psychological conditions were properly documented by health care professionals. Finally, his domestic situation was great - there were no other explanations for why he went into a tailspin. The arbitrator decided in my client's favor and entered a nice award on my client's behalf.