Number 2 and Monograph - Illinois Association of Defense Trial
Transcription
Number 2 and Monograph - Illinois Association of Defense Trial
IDC Quarterly Second Quarter 2005 Second Quarter 2005 Volume 15, Number 2 ISSN-1094-9542 FEATURED ARTICLES Spring 2005 Spoliation of Evidence Revisited Page 11 IDC Appellate Court of Illinois Affirms Application of Actual Innocence Rule in Legal Malpractice Action Page 43 Vacation of Voluntary Dismissal Orders Opens the Door for Potential Abuse Page 60 MONOGRAPH The Class Action Fairness Act – What is it all About? The Illinois Association of Defense Trial Counsel Law, Equity, Justice 1 Illinois Association of Defense Trial Counsel IDC QUARTERLY EDITORIAL BOARD Rick Hammond, Editor-In-Chief Johnson & Bell, Ltd., Chicago [email protected] WWW.IADTC.ORG PRESIDENT STEPHEN J. HEINE Heyl, Royster, Voelker & Allen, Peoria PRESIDENT-ELECT GLEN E. AMUNDSEN O’Hagan, Smith & Amundsen, L.L.C., Chicago 1ST VICE PRESIDENT STEVEN M. PUISZIS Hinshaw & Culbertson, Chicago 2ND VICE PRESIDENT JEFFREY S. HEBRANK Burroughs, Hepler, Broom, MacDonald, Hebrank & True, Edwardsville SECRETARY/TREASURER GREGORY L. COCHRAN McKenna Storer, Chicago DIRECTORS DAVID M. BENNETT Pretzel & Stouffer, Chtrd., Chicago TROY A. BOZARTH Burroughs, Hepler, Broom, MacDonald, Hebrank & True, Edwardsville C. WM. BUSSE, JR. Busse & Busse, P.C., Chicago ANDREW D. CASSIDY Cassidy & Mueller, Peoria JANELLE K. CHRISTENSEN Tressler, Soderstrom, Maloney & Priess, Lincolnshire DANIEL K. CRAY Iwan Cray Huber Horstman & Van Ausdall, LLC, Chicago RICK HAMMOND Johnson & Bell, Ltd., Chicago R. HOWARD JUMP Jump and Associates, P.C., Chicago DAVID H. LEVITT Hinshaw & Culbertson, Chicago KEVIN J. LUTHER Heyl, Royster, Voelker & Allen, Rockford JOHN P. LYNCH, JR. Cremer, Kopon, Shaughnessy & Spina, Chicago MATTHEW J. MADDOX Quinn, Johnston, Henderson & Pretorius, Springfield FRED B. MOORE Lawrence, Moore & Ogar, Bloomington JOHN L. MOREL John L. Morel, P.C., Bloomington ANNE M. OLDENBURG Alholm, Monahan, Klauke, Hay & Oldenburg, L.L.C., Chicago ROBERT T. PARK Snyder, Park & Nelson, P.C., Rock Island MICHAEL RESIS O’Hagen, Smith & Amundsen, Chicago KENNETH F. WERTS Craig & Craig, Mt. Vernon Linda J. Hay, Executive Editor Alholm, Monahan, Klauke, Hay & Oldenburg, L.L.C., Chicago [email protected] Joseph G. Feehan, Associate Editor Heyl, Royster, Voelker & Allen, Peoria [email protected] Kimberly A. Ross, Assistant Editor Cremer, Kopon, Shaughnessy & Spina, Chicago [email protected] Renee J. Mortimer, Assistant Editor Hinshaw & Culbertson, Schererville, IN [email protected] COLUMNISTS Edward J. Aucoin, Jr. John L. Morel Hall, Prangle & Schoonveld, LLC, Chicago John L. Morel, P.C., Bloomington Beth A. Bauer Martin J. O’Hara Burroughs, Hepler, Broom, MacDonald, Quinlan & Carroll, Ltd., Chicago Hebrank and True, Edwardsville David A. Perkins James K. Borcia Heyl, Royster, Voelker & Allen, Peoria Tressler, Soderstrom, Maloney & Priess, Chicago Robert T. Park Michael C. Bruck Snyder, Park & Nelson, P.C., Rock Island Crisham & Kubes, Ltd., Chicago Michael J. Progar Brad A. Elward Doherty & Progar, LLC, Chicago Heyl, Royster, Voelker & Allen, Peoria Michael L. Resis Joseph G. Feehan O’Hagan, Smith & Amundsen, L.L.C., Chicago Heyl, Royster, Voelker & Allen, Peoria Kimberly A. Ross Stacy Dolan Fulco Cremer, Kopon, Shaughnessy & Spina, LLC, Chicago Cremer, Kopon, Shaughnessy & Spina, LLC, Chicago Peter R. Ryndak Rick Hammond Johnson & Bell, Ltd., Chicago Johnson & Bell, Ltd., Chicago Tracy E. Stevenson Stephen J. Heine Chuhak & Tecson, P.C., Chicago Heyl, Royster, Voelker & Allen, Peoria Willis R. Tribler Kevin J. Luther Tribler Orpett & Meyer, P.C., Chicago Heyl, Royster, Voelker & Allen, Rockford CONTRIBUTORS Brian Y. Boyd Williams Montgomery & John Ltd., Chicago Sean G. Joyce Williams Montgomery & John Ltd., Chicago John D. LaBarbera O’Hagan, Smith & Amundsen, L.L.C., Chicago Bradley C. Nahrstadt Williams Montgomery & John Ltd., Chicago Al Pranaitis Hoagland, Fitzgerald, Smith & Pranaitis, Alton EXECUTIVE DIRECTOR Shirley A. Stevens PAST PRESIDENTS: Royce Glenn Rowe - James Baylor - Jack E. Horsley - John J. Schmidt -Thomas F. Bridgman - William J. Voelker, Jr. - Bert M. Thompson - John F. Skeffington - John G. Langhenry, Jr. - Lee W. Ensel - L. Bow Pritchett - John F. White - R. Lawrence Storms - John P. Ewart - Richard C. Valentine - Richard H. Hoffman - Ellis E. Fuqua - John E. Guy - Leo M. Tarpey - Willis R. Tribler - Alfred B. LaBarre - Patrick E. Maloney - Robert V. Dewey, Jr. - Lawrence R. Smith - R. Michael Henderson - Paul L. Price - Stephen L. Corn - Rudolf G. Schade, Jr. - Lyndon C. Molzahn - Daniel R. Formeller - Gordon R. Broom - Clifford P. Mallon - Anthony J. Tunney - Douglas J. Pomatto - Jack T. Riley, Jr. - Peter W. Brandt - Charles H. Cole - Gregory C. Ray - Jennifer Jerit Johnson The IDC Quarterly is the official publication of the Illinois Association of Defense Trial Counsel. It is published quarterly as a service to its members. Subscriptions for non-members are $75 per year. Single copies are $20 plus $2 for postage and handling. Requests for subscriptions or back issues should be sent to the Illinois Association of Defense Trial Counsel headquarters in Springfield, Illinois. Subscription price for members is included in membership dues. THE ILLINOIS ASSOCIATION OF DEFENSE TRIAL COUNSEL P.O. Box 7288 • Springfield, IL 62791 800-232-0169 • 217-636-7960 • FAX 217-636-8812 [email protected] SHIRLEY A. STEVENS, Executive Director TONYA M. VOEPEL, Publications Manager 9865 State Route 124 • P.O. Box 78 Sherman, IL 62684 217-566-2603 • FAX 217-566-2507 [email protected] In This Issue Lead Article MonographM-1 The Class Action Fairness Act of 2005 – What is it all About? by Bradley C. Nahrstadt and Brian Y. Boyd Featured Articles 11 Spoliation of Evidence Revisited, by Bradley C. Nahrstadt and Sean G. Joyce 43 Appellate Court of Illinois Affirms Application of Actual Innocence Rule in Legal Malpractice Action Arising from Underlying Criminal Plea Agreement by John D. LaBarbera 60 Recent Opinion Regarding Voluntary Dismissal Orders Opens the Door for Potential Abuse, by Al Pranaitis Regular Columns 72 Alternative Dispute Resolution, by John L. Morel 74 Amicus Committee Report, by Michael L. Resis 67 Appellate Practice Corner, by Brad A. Elward 33 Case Note, by Robert T. Park 34 Civil Rights Update, by David A. Perkins 70 Commercial Law, by James K. Borcia 73 The Defense Philosophy, by Willis R. Tribler 6 Editor’s Note, by Rick Hammond 26 Employment Law Issues, by Kimberly A. Ross 38 Evidence and Practice Tips, by Joseph G. Feehan 7 IDC Candidates for Election 76 IDC New Members 19 Insurance Coverage, by Peter R. Ryndak 17 Legal Ethics, by Michael J. Progar 36 Medical Malpractice, Edward J. Aucoin, Jr. 4 President’s Message, by Stephen J. Heine 56 Professional Liability, by Martin J. O’Hara 65 Property Insurance, by Tracy E. Stevenson 48 Recent Decisions, by Stacy Dolan Fulco 54 Supreme Court Watch, by Beth A. Bauer 44 Technology Law, by Michael C. Bruck 15 Workers’ Compensation Report, by Kevin J. Luther Manuscript Policy Members and other readers are encouraged to submit manuscripts for possible publication in the IDC Quarterly, particularly articles of practical use to defense trial attorneys. Manuscripts must be in article form. A copy of the IDC Quarterly Manuscript Guidelines is available upon request from The Illinois Association of Defense Trial Counsel office in Springfield, Illinois. No compensation is made for articles published, and no article will be considered that has been submitted simultaneously to another publication or published by any other publication. All articles submitted may be subjected to editing and become the property of the IDC Quarterly, unless special arrangements are made. Statements or expression of opinions in this publication are those of the authors and not necessarily those of the Association or Editors. A copy of the IDC Quarterly Editorial Policy is available upon request. Letters to the Editor are encouraged and welcome, and should be sent to the Illinois Association of Defense Trial Counsel headquarters in Springfield. Editors reserve the right to publish and edit all such letters received and to reply to them. IDC Quarterly, Second Quarter, 2005, Volume 15, No. 2. Copyright © 2005 The Illinois Association of Defense Trial Counsel. All rights reserved. Reproduction in whole or in part without permission is prohibited. POSTMASTER: Send change of address notices to IDC Quarterly, The Illinois Association of Defense Trial Counsel, P.O. Box 7288, Springfield, IL 62791. Second-Class postage paid at Springfield, IL and additional mailing offices. This publication was printed by Gooch & Associates, Springfield, Illinois. IDC Quarterly President’s Message By: Stephen J. Heine Heyl, Royster, Voelker & Allen Peoria IDC Business The 2005 Spring Defense Tactics Seminar was sold out, as it should have been. All in attendance enjoyed a fine program at the University Club on a Friday followed by a cocktail party reception for attendees, speakers and sponsors. Mike Tootooian, his committee, and Glen Amundsen, who paved the way to the University Club, deserve congratulations for an excellent program and a scholarly set of materials prepared by some learned speakers. The Fall Conference is September 23 and 24 at Eagle Ridge Inn and Resort in beautiful Galena. Aleen Tiffany and her excellent program planned. committee have an Every four or five years the leadership of the IDC participates in a long-range planning session. In August we will meet at the Inn at Eagle Creek at Lake Shelbyville. This meeting, as in the past, is designed to allow discussion of a wide range of topics of significance to the organization that time does not permit to be developed fully at regular board meetings. If you have been invited to attend, please do whatever you can to adjust your schedule so you can participate. November 5 is the date for the Rookie Seminar at John Marshall in Chicago. Send all of your young lawyers — I guarantee that they will learn some valuable skills. The Annual Meeting of the IDC Membership and the Board of Directors will be held on June 17 at Arlington Park. This should be an enjoyable event with a little business and more than a little fun. The Judicial Branch The first quarter of 2005 has been fraught with varying attacks on our judicial system. From the murder of Judge Lefkow’s family in Chicago to the Atlanta courthouse murders of a judge, court reporter and court deputies, to the white supremacist law graduate (but non-lawyer) convicted of scheming to murder Judge Lefkow because of a ruling 4 against him in a civil case, to the members of the executive and legislative branches of state and federal governments who seek to decide particular cases and controversies in private matters and disregard the established judicial process, the courts are under siege. Let us all remember that we are officers of the court. We are an important part of the judicial process that makes our country different from the rest of the world. We are a part of the rule of law. We are not fixers, greasers or political partisans. We are lawyers who represent our clients but owe our first allegiance to the judicial branch. If you are in doubt as to the extent of this duty, take time to review the Rules of Professional Conduct. Lawyers must make reasonable efforts to expedite litigation (Rule 3.2) and shall not make any false statements of material fact, offer false evidence, counsel or assist a client in fraudulent or illegal conduct (Rule 3.3). Lawyers shall not make any false or reckless statements concerning the qualifications or integrity of a judge (Rule 8.2). Why do we have the last rule? Simply because if we, the officers of the court, the individuals who are charged with the responsibility of making the system work, berate or assert a lack of qualifications or integrity on the part of judges who rule against our clients, the system will collapse. It falls to us, the active and regular participants in a system designed to be a search for the truth through the adversary process, to uphold the integrity of the system and those that govern it. We know that there is almost always a winner and a loser; it is the nature of the process. It is easy to be a winner, but it is when a lawyer has lost that the challenge arises. If you berate the judicial branch, you demean yourself. If you deride the judges and the system, you play into the hands of the hatemongers and the mentally disturbed. Please think before you speak ill of the process that provides you with a livelihood and a fine intellectual challenge on a daily basis. Most are not so fortunate. Robert Grey, the President of the American Bar Association, as fine and distinguished a gentleman as you will ever have the pleasure to meet, spoke recently on the same issue as follows: As members of the legal profession, I know you share my concern over the public’s misunderstanding of the judiciary’s role and the politically motivated criticism of the judiciary stemming from the Terri Schiavo case, and are equally alarmed about the murders of Judge Lefkow’s family members in Chicago and the attacks at the Fulton County Courthouse in Georgia. The circumstances of these tragic events require careful analysis, thoughtful leadership, and measured response. The American Bar Association has long held the preservation of judicial independence as one of the most important Association goals. These recent events have elevated the urgency Second Quarter 2005 of that commitment among the ABA’s leadership. In the past several days, I have issued public statements condemning the violence against our judiciary and the gratuitous and vicious public attacks on the dedicated men and women who are our country’s judges. During my speaking engagements, I have taken the opportunity to call for a change in tenor when the national discussion turns to our justice system. Regardless of how one feels about the specific circumstances of the Schiavo - or any - situation, the role of the programs that support our justice system, our judges, and our courts. Information on each of these entities’ initiatives can be accessed through the Justice Center’s web site at http:// www.abanet.org/justicecenter/home.html Thank you for your continued support of the ABA, the legal profession, and the judiciary. As the voice of the legal profession, we must not allow those among us who would do harm, in any form, to destroy the very freedoms our legal system is entrusted to protect. I wish I could have said it as well. Comings and Goings “Let us all remember that we are officers of the court. We are an important part of the judicial process that makes our country different from the rest of the world.” judiciary is clear. Federal and state judges are charged with weighing the facts of a case and following the remedies set forth in the law, responsibilities they carry out valiantly and with great dignity and sensitivity. It is vital that the legal community address the current atmosphere in which our legal system operates, in what can only be called a decline in civility and respect toward our justice system. Too often judges are characterized as political tools and the justice system merely an offshoot of politics, and not the independent leg of our democracy that they are. Efforts to address the problems of courthouse security have been initiated by the Judicial Conference of the United States and the National Center for State Courts, and I have approached these organizations as well as a number of entities within the ABA to determine where and how we can best contribute to resolving problems faced by the nation’s courts and judges. The Association is committed to promoting the importance of judicial independence. The four entities that comprise the ABA Justice Center: the Judicial Division, the Standing Committee on Judicial Independence, the Standing Committee on Federal Judicial Improvements, and the Coalition for Justice work tirelessly to develop resources, initiatives, policies, and By the time you read this, my term as IDC President will be nearly concluded. I have enjoyed every minute of it and thank all of you, especially the other officers with whom I have served for many years, Glen Amundsen, Steve Puiszis, Jeff Hebrank, Greg Cochran and the Board of Directors. Thanks as well to the Quarterly’s Editorial Board and especially to Linda Hay who edits this column and is responsible for its grammatical soundness but not for the substance of the views expressed. Thanks also to Rick Hammond who performed admirably for the IDC as Editor in Chief and in many other roles, and to Tonya Voepel, as well, who compiles the words of many into a fine, comprehensive publication. Last but not least, thanks to our Executive Director, Shirley Stevens. Her efforts and diligence have made not only the Officers and Directors, but the rest of the leadership shine. 5 IDC Quarterly By: Rick Hammond Johnson & Bell, Ltd. Chicago Over the years, I have heard people talk about the IDC Quarterly being regarded by other state’s defense bar associations as the best publication of its kind. After spending a year as its Editor-in-Chief, I now understand why. The dedication of the authors, editors, members, and staff to this “little blue book” is a thing to behold. As I close out my term, I would like to thank my fellow Editorial Board members, Joe Feehan, Kim Ross, and Renee Mortimer. I could not have done it without them . . . no way, no how. Special thanks and best wishes to my successor and fellow editor, Linda Hay. She has always been willing to take on more than her share of the load, and she has contributed significantly to the quality and success of the Quarterly as a member of the Editorial Board. She will do a great job as Editor-in-Chief. Tonya Voepel, the person behind the scene, receives far less credit and visibility than she deserves. She magically takes a very raw product and turns it into a shining jewel. Thanks Tonya, I had a great time working with you. Shirley Stevens, the backbone of our entire organization, thanks so much to you for your help and support during my term and always. Congratulations to our out-going President, Steve Heine, whose guidance helped our organization prosper and continue to succeed. Best wishes to our President-elect, Glen Amundsen, a great defense lawyer and a long-standing and dedicated member of IDC. Expect to see great things under his leadership in the coming year. Finally, thanks to the IDC board for your time and commitment to the organization, the Quarterly’s authors for gratuitously sharing your knowledge and expertise, and thanks to you, the IDC members, for your appreciation and continued support of the Quarterly. All of you certainly made my job easy. 6 “I will end this column the way I started it, ‘The information contained in the IDC Quarterly is, alone, worth the price of membership in this organization.’ ” QUARTERLY deadlines Editor’s Note I will end this column the way I started it, “The information contained in the IDC Quarterly is, alone, worth the price of membership in this organization.” June 28, 2005 Vol. 15, No. 3 September 27, 2005 Vol. 15, No. 4 December 27, 2005 Vol. 16, No. 1 March 28, 2006 Vol. 16, No. 2 Illinois Association of Defense Trial Counsel Second Quarter 2005 CANDIDATES for the Board of Directors 2005-2006 S ALEEN R. TIFFANY ix nominations have been received to fill the six vacancies of terms expiring June 2005. In accordance with the bylaws of the Illinois Association of Defense Trial Counsel these directors will take office in June 2005. Also, according to the bylaws the Board of Directors shall be representative of all areas of the State of Illinois, and to this end, two Districts are declared: “Cook County” and “Downstate;” no more than four of the six directors elected each year shall office within the same District. The nominations are listed in the order in which they were received. New Directors will be announced at the Annual Meeting on June 17, 2005. Aleen graduated from the University of Illinois with a Bachelor of Science degree in Mathematics in 1989 and earned her Juris Doctor degree from The John Marshall Law School, cum laude, in 1993. She has been very active in the IDC, serving as an Instructor and as Chair of the IDC Trial Academy for several years, and Chair/Committee member of the Fall Seminar the last 3 years. Aleen is a trained and approved arbitrator in the 19th Judicial Circuit Mandatory Court-annexed Arbitration program, and frequently serves as an arbitrator in First Party claims. Aleen has successfully litigated a wide variety of civil matters throughout northern Illinois. In recent years her practice has focused strongly on construction matters. Aleen regularly handles the day-to-day issues facing general and subcontractors, design professionals, and insurers, including risk transfer and insurance matters; contract evaluation and development; defense of catastrophic bodily injury claims; construction defect claims arising out of breach of contract, common law, and other warranty and statutory theories; and other contract, mechanics liens, and commercial matters faced regularly by corporate clients. She has written and lectured in various areas of Illinois tort law including: construction injury theories under the common law and former Structural Work Act; risk transference and coverage; joint and several liability and indemnification; certificates of insurance and additional insured endorsements; cost effective handling of discovery and the litigation process; settlement avenues; and tort reform (1995), its repeal, and subsequent litigation theories and changes. Statement of Candidacy — Aleen R. Tiffany Service on the IDC Board of Directors provides a great opportunity to help further the goals of the organization and its members. We must continue to help members of all practice levels to promote greater knowledge and insight, scrvice and civility, collegiality, and administration ofjustice. I have enjoyed, Continued 7 Aleen R. Tiffany—Continued and learned much from my activity in the organization during my career by regular attendance at the Fall and Spring seminars, speaking at the Fall Seminar in 2003; and regularly serving as a committee member, Co-Chair, and Chair of the Fall Seminar and Trial Academy (Fall Seminar Committee member 2003, co-chair 2004, Chair 2005; Tnal Academy committee and faculty member 2002, Co-Chair 2003, and Chair 2004, 2005). Through those committees, I have reported directly to the Board of Directors and Officers, and thus have learned a great deal regarding the structure and operation of the IDC — and more importantly have learned the great benefit to the organization and the defense bar in general, of having strong and committed members at all levels of the organization. My experience and leadership will assist the IDC in expanding and reaching its goals, and to remain the premier association of civil defense attomeys in Illinois. KEVIN J. LUTHER Kevin J. Luther is a partner in the Rockford office of Heyl, Royster, Voelker & Allen. He has tried cases in the areas of employment law, workers’ compensation, product liability, professional liability, insurance coverage, and general tort defense. Mr. Luther received his B.A. degree from Blackburn University (Summa Cum Laude) in 1981 and his J.D. degree from Washington University in 1984. He is a member of the Illinois Association of Defense Trial Counsel and practices before the Illinois Department of Human Rights, Illinois Human Rights Commission, Illinois Industrial Commission, EEOC, State Courts for the States of Illinois and Wisconsin, as well as the United States District Court for the Northern District of Illinois. Statement of Candidacy — Kevin J. Luther I am pleased to be a candidate for the Board of Directors for the IDC. My first committee involvement was the Fall Conference Committee which I eventually co-chaired in 1997 and chaired in 1998. I have been a columnist for the IDC Quarterly for several years and have had the honor to co-author three IDC monographs. I have spoken at prior IDC seminars. I have enjoyed my first term as a board member. It is my goal to take my participation in the IDC to a higher level. I have enjoyed the opportunity to work with the leadership of the IDC and would welcome the opportunity to participate further as a board member in our fine organization. RICK HAMMOND Rick Hammond is a shareholder in the Chicago law firm of Johnson & Bell, Ltd., and he concentrates his practice on insurance coverage, insurance fraud and bad faith litigation. He is a current member of the IDC’s Board of Directors, and he is a board member and an officer of the Insurance School of Chicago. He is also a vice-chair of the Property Insurance Law Committee of the American Bar Association, and a member of the Federation of Defense and Corporate Counsel. Rick is the Editor-in-Chief of the IDC Quarterly, a featured columnist for SIU Awareness, a publication of the International Association of Special Investigation Units, and a frequent presenter both nationally and internationally on matters relating to insurance coverage, insurance fraud and bad faith. He previously served as Executive Director of the Insurance Committee for Arson Control, a national insurance trade association, and he currently serves as their General Counsel. He also serves as General Counsel for the International Association of Arson Investigator’s Foundation, Inc. He is the former head of the Illinois Department of Insurance’s Chicago office, and he has held managerial positions in claims and agency for two national insurance carriers. Statement of Candidacy — Rick Hammond I am pleased and excited to offer my candidacy for reelection to the IDC’s Board of Directors, and I am proud to reflect on my accomplishments: • Editor-in-Chief of the IDC Quarterly, and a member of the Quarterly’s Editorial Board for the past four years; • As an officer and a board member of the Insurance School of Chicago (ISC), I was successful in facilitating an alliance to be formed between ISC and IDC. This alliance resulted in the presentment of four jointly sponsored seminars on mold litigation, construction defects, tripartite relations and sexual torts. These programs were very well received and generated several thousand dollars of additional revenue for the IDC; • Served as a presenter for the IDC’s 2005 Spring Defense Tactic’s Seminar; • Served as a presenter for the IDC and ISC joint seminar on mold litigation; • Developed, co-chaired and moderated an IDC seminar on marketing and business development, a program which emphasized practice building by female and minority lawyers; and • Former chair of the IDC’s Technology Committee. It is my hope that my record of accomplishments on your behalf will cause you to find me deserving of your vote. I appreciate having had the opportunity to serve you for the past five years, and I thank you in advance for the opportunity to serve you again in the next term. to act as a leader and feel that my contributions have played an integral role in the growth of the organization and the professionalism of the statewide defense bar. I would welcome the opportunity to continue to serve this esteemed organization, and would appreciate the consideration of the membership in that regard. ANNE M. OLDENBURG Anne M. Oldenburg is a partner in the Chicago law firm of Alholm, Monahan, Klauke, Hay & Oldenburg, LLC. She has been admitted to practice by the Supreme Court of Illinois, the United States District Courts for the Central, Southern and Northern Districts of Illinois, as well as the Federal Trial Bar. Anne M. Oldenburg received her Bachelor of Arts, cum laude, from Ripon College in 1983 and her Juris Doctor, with distinction, from The John Marshall Law School in 1986. While at John Marshall, she was a Moot Court Executive Board Associate Justice, a member of the Moot Court Council and Moot Court Honors Writing. Ms. Oldenburg is a member of the Illinois State and Chicago Bar Associations, the Illinois Association of Defense Trial Counsel, the Defense Research Institute, the American Academy of Healthcare Attorneys of American Hospital Association, the American Association of Healthcare Risk Managers, the Chicago and Healthcare Risk Management Society, and the Illinois Association of Healthcare Attorneys. Ms. Oldenburg is also a member of the Board of Directors of the Illinois Association of Defense Trial Counsel. Ms. Oldenburg’s most recent publications include The 10 Biggest Mistakes Physicians Make Which Prevent Them From Transferring Risk, and The 10 Biggest Mistakes Physicians Make When Obtaining Insurance Coverage in SEAK, Inc.’s The Biggest Legal Mistakes That Physicians Make and How to Avoid Them in 2004. Ms. Oldenburg is a frequent lecturer on various topics in the healthcare field. Statement of Candidacy —Anne M. Oldenberg I am currently in the process of completing my second term on the Board of Directors of the Illinois Association of Defense Trial Counsel. Throughout my two terms, I have been actively involved in the Association’s educational and social functions. I regularly attend meetings and provide invaluable liason services between the membership and the Board of Directors. Recently, I chaired the 40th Anniversary Gala, which was a well attended event honoring the IDC’s continued years of service to the defense bar. During my tenure on the Board, I have and will continue to promote the Illinois Association of Defense Trial Counsel as an organization to serve the needs of defense lawyers throughout the state by providing superior educational opportunities, invaluable resources and quality networking events. I have been honored C. WILLIAM BUSSE, JR. C. William Busse, Jr. is the President of the law firm of Busse & Busse, P.C., where he concentrates his practice in defense of tort litigation. He has handled hundreds of personal injury and wrongful death cases in various Illinois venues, including automobile, trucking, premises liability, product liability, aviation and construction injury claims, as well as fire and explosion and property damage claims. He has defended numerous cases involving churches and other charitable organizations. Mr. Busse received his J.D. in 1982 from The John Marshall Law School and his B.A. from Western Illinois University in 1975. He currently serves as Co-chair of the IDC Civil Practice and Procedure Committee. He is a member of DRI and is also active in the Chicago Bar Association and Illinois State Bar Association. Mr. Busse is a past chair of the Bench/Bar Relations Committee and the Civil Practice and Procedure Committee of the Chicago Bar Association. He is also a founding member of the CBA Interfaith Law Committee. Statement of Candidacy — C. William Busse, Jr. I have been an active member of the Illinois Association of Defense Trial Counsel since 1982. During that time, our association has evolved into an organization that is widely regarded as one of the premier state defense associations in this county. I am continually impressed with the IDC and the high caliber of its members. Prior to becoming a director. I served as the chairman of the Civil Procedure Committee for a number of years. In that capacity I had the opportunity to testify on behalf of the association before the Supreme Court Rules Committee on a number of proposed rule changes. It was gratifying to see the respect that the IDC was given by the committee. In addition to publishing two Civil Practice Updates for the organization, I have co-authored two monographs for the IDC Quarterly. It was also my pleasure to act as a guest speaker and as a moderator at several of our fall seminars. Continued IDC Quarterly C. William Busse, Jr.—Continued During the last two years I have had the honor to serve as a director of our association. It has been a challenging and rewarding term. The IDC is now at an important crossroads. In addition to planning numerous seminars, publications and events, we are now engaged in a strategic long range planning project to determine the current role of our organization and the role it will play in the next 20 years. The IDC has a tremendous potential to influence the legislative and judicial process by increasing its membership and achieving a higher profile in the legal community. I want to have a role in this critical process by continuing to represent our organization in the planning of seminars and the publishing of timely and informative publications. We now have an excellent opportunity to increase the profile of our association in the legal and legislative community. I would welcome the opportunity to serve our organization as we look to the challenges ahead. PATRICK C. DOWD Born Chicago, Illinois, July 10, 1958; admitted to bar, 1985, Illinois and U.S. District Courts, admitted to bar, Wisconsin, 1997. Education: Northern Arizona University (B.S., cum laude, 1981); DePaul University (J.D., 1985). Phi Kappa Phi (Honor Society). Member: Chicago, Illinois State and American Bar Associations; American Trial Lawyers Association,: Member: TIDA; Trucking Industry Defense Association; American Bar Association; Section of Tort and Insurance Practice, Commercial Transportation Litigation Committee. Executive-Director, Children’s Charities of Chicago 1985-1996. Catholic Charities of the Archdiocese of Chicago Board of Advisors; Appointed by Cardinal George 1997. Legal Advisory Committee of Catholic Charities. Instructor, Chicago School of Commerce, 1984-1987. Business Law, “Instruction On Debate,” CBA, 1986; “Erosion of the Peremptory Challenge: Rule against excluding jurors based on race applies to civil cases,” ISBA Trial Briefs, July, 1992; “Determination of Good Faith Findings,” ISBA Trial Briefs, May, 1994; ISBA, Participant, 1993 Annual Minority and Women Attorneys’ Conference; Opening Statements. ISBA, Allerton House Steering Committee 1994; Trial Techniques Committee 1985-1986, Tort Litigation Committee, 1985-1986; Guest Speaker: ISBA, Civil Practice Update, February, 1994, ISBA, Participant, Allerton House Conference, Monticello, Illinois, May, 1994; ISBA, Law Ed Series, Anatomy of a Trial, Part II: Recurring Evidentiary Issues, Chicago, November, 1994; Civil Practice Committee 1991-1995. ISBA; Elected Assembly Member, 1994–1996. Tort Law Section Council 1996-1997. Illinois Tort Reform; 10 An Overview And Analysis; Illinois Supreme Court Amended Discovery Rules, June, 1997. Pre-existing Condition; Proof of Causal Connection Required, July, 1998. When In Doubt, Err on the Side of Full Disclosure, July, 1999. TIDA; Presenter, Back to Basics Program, October, 1999. Presenter, a Panel Discussion of The How and Why of Catastrophic Investigation, October 1999. Answers to commonly asked questions about the N.T.S.B. and U.S.D.O.T., November 2000. Changes to Discovery Rules Under Illinois Supreme Court Rules, April, 2002. Presenter, Defense Perspective: Focus Groups and Mock Trials, October, 2002. Fall, 2003, Industry Seminar: Wrongful Death – Post Mortem. Update: Comparing and contrasting substantive law of Illinois and Indiana, Fall, 2003. Presenter: Defense Strategies for Bad Venues – Aftermath of Catastrophic Loss, Houston, Texas, January, 2004. Duty to Defend: A Refresher, Summer 2004. Elected to “Leading Lawyers” for State of Illinois, December, 2004. Statement of Candidacy —Patrick C. Dowd I respectfully request your support as candidate for the Board of Directors of the Illinois Defense Counsel. I am the managing partner of a mid-sized defense firm and believe that I possess the requisite skills and determination necessary to foster both current and future goals of the Defense Counsel. Over my 20 years of experience as a lawyer, I have been very active in the Illinois Bar Association, including participation in committees, Illinois General Assembly, lectures and publications. I welcome the challenge of serving on the Board of Directors and commit to move the Defense Counsel forward in the upcoming years. Second Quarter 2005 Featured Article Spoliation of Evidence Revisited By: Bradley C. Nahrstadt and Sean G. Joyce Williams Montgomery & John Ltd. Chicago In the Second Quarter of 2004, the authors published an article in this journal that provided a chronological survey of cases that contributed to the body of precedent in Illinois dealing with the issue of spoliation of evidence. The last case discussed in that article was Dardeen v. Kuehling, 801 N.E.2d 960, 2003 WL 22800859 (Ill. App. 5th Dist.). In December of 2004, the Illinois Supreme Court issued an opinion in the Dardeen case that effectively overruled the decision of the Fifth District Appellate Court and reinstated the entry of summary judgment in favor of the defendant’s insurer. Dardeen v. Kuehling, 213 Ill. 2d 329, 821 N.E.2d 227 (2004). On March 17, 2005, the First District Appellate Court issued an opinion in yet another spoliation of evidence case: Adams v. Bath and Body Works, Inc., No. 1-02-3530 (1st Dist. March 17, 2005). In the interest of being thorough, the authors would like to take this opportunity to address these most recent judicial pronouncements regarding the thorny issue of spoliation. In Dardeen, the plaintiff, a newspaper carrier, was delivering newspapers with his daughter early in the morning on September 1, 1999, when he tripped over a hole on a brick sidewalk located on the property of the defendant, Alice Kuehling, and sustained injuries. The plaintiff’s daughter called Kuehling later that day and notified her of the plaintiff’s accident. Moreover, in the evening on the day of the accident, the plaintiff, accompanied by his neighbor, returned to Kuehling’s property to inspect the hole and tell Kuehling about his accident. Kuehling’s daughter and son-in-law were present at the evening meeting and observed the condition of the area where the plaintiff fell. On the same day as the accident, Kuehling reported the plaintiff’s fall to her State Farm insurance agent, Ronald Couch. Kuehling asked Couch whether she could remove the uneven bricks from the sidewalk to prevent anyone else from falling. Couch told her she could remove the bricks. Within one week of the accident, Kuehling removed between 25 and 50 bricks without first photographing or videotaping the sidewalk where the accident occurred. On August 1, 2000, the plaintiff filed a complaint against Kuehling and the City of Mt. Carmel alleging failure to repair the hole in the sidewalk and failure to warn others that the hole existed. Subsequently, the plaintiff voluntarily dismissed the count against Mt. Carmel and filed an amended complaint adding counts against both Kuehling and State Farm for negligent spoliation of evidence. The plaintiff alleged that State Farm had a duty to preserve the sidewalk when it became aware of the plaintiff’s claim via its agent, Ronald Couch, and breached its duty by authorizing Kuehling to remove the bricks without first photographing or videotaping the sidewalk. The plaintiff further alleged that by removing the bricks, Kuehling changed the appearance of the accident site and, as a result, destroyed material evidence the plaintiff needed to prove his personal injury case. State Farm filed a motion for summary judgment on the negligent spoliation of evidence count of the plaintiff’s complaint. On April 30, 2002, the trial court granted State Farm’s motion and the plaintiff appealed. On appeal, the appellate court reversed the trial court’s (Continued on next page) About the Authors Bradley C. Nahrstadt is a partner with the Chicago firm of Williams Montgomery & John Ltd. His practice is devoted to litigation, including the defense of product liability, medical malpractice and insurance bad faith cases in state and federal courts. Mr. Nahrstadt received his B.A. from Monmouth College, summa cum laude, in 1989, and his J.D. from the University of Illinois College of Law, cum laude, in 1992. He is a member of the Illinois State Bar Association, IDC and DRI. Sean G. Joyce is an associate with the Chicago law firm of Williams Montgomery & John Ltd. and practices primarily in the areas of product liability and commercial litigation. He received his B.S. in Accountancy from DePaul University and his J.D. from Loyola University Chicago. Mr. Joyce is a member of the IDC, ABA, ISBA and CBA. 11 IDC Quarterly Spoliation Revisited (Continued) grant of summary judgment for State Farm. In support of its decision, the court relied upon the holdings of Boyd v. Traveler’s Insurance Co. (a duty to preserve evidence may arise through an agreement, a contract, or other special circumstances such as the assumption of a duty by affirmative conduct) and Shimanovsky v. General Motors Corp. (a potential litigant owes a duty to take reasonable measures to preserve the integrity of relevant and material evidence). The court emphasized that State Farm had a contractual relationship with Alice Kuehling, Kuehling notified State Farm’s agent, Ronald Couch, of the accident, and Kuehling relied on Couch’s advice before removing the bricks. As a State Farm agent, Couch was well aware that the sidewalk was material to any potential civil litigation. Nevertheless, Couch authorized the removal of the bricks without recommending that Kuehling photograph or videotape the site. Furthermore, Couch could have sent an investigator to preserve the site prior to the removal of the bricks, but chose not to do so. The court held that as a result of State Farm’s actions, the ongoing cases of both the insured, Kuehling, and the plaintiff had been impaired since neither had photographic evidence showing the condition of the sidewalk at the time of the incident. In its defense, State Farm argued that it had no duty to preserve evidence because it never possessed or retained control over the sidewalk nor prevented the plaintiff or anyone else from inspecting the sidewalk. Moreover, the plaintiff improperly attempted to broaden the scope of a spoliation of evidence claim by imposing liability on a party who never had possession or control over the evidence in question. In support of its argument, State Farm cited the case of Jones v. O’Brien Tire & Battery Service Center, Inc., 322 Ill. App. 3d 418, 752 N.E.2d 8 (5th Dist. 2001), and noted that the court in Jones emphasized that possession of evidence was paramount in finding that a party has a duty to preserve evidence. While showing deference to the holding in Jones, the court in the instant case stated that Jones does not absolutely require that a party “have possession of the evidence before a duty to preserve evidence is imposed.” Dardeen, 344 Ill. App. 3d 832, 801 N.E.2d at 965. Seemingly, the court broadened the concept of “possession or control of evidence” in concluding that, “State Farm did not have possession of the sidewalk but, instead, exercised control or had the opportunity to exercise control. It was reasonably foreseeable that the condition of the sidewalk at the time of the accident was a crucial issue. Without a doubt, this evidence should have been preserved.” Id. (emphasis added). Additionally, State Farm asserted that if it encouraged Kuehling to destroy the brick sidewalk, it was simply complying 12 with Illinois public policy favoring improvements that enhance public safety. In response, the court noted that in Boyd, “the Illinois Supreme Court also declared that it is against public policy to destroy evidence. It is clear that both these policies could have been advanced had State Farm simply directed Kuehling to photograph or videotape the sidewalk prior to removing between 25 and 50 bricks.” Id. at 966. Finally, in reversing the trial court’s grant of summary judgment in favor of State Farm, the appellate court took issue “As a State Farm agent, Couch was well aware that the sidewalk was material to any potential civil litigation. Nevertheless, Couch authorized the removal of the bricks without recommending that Kuehling photograph or videotape the site.” with the trial court’s finding that there was ample evidence on the condition of the sidewalk at the time of the incident given that at least eight people viewed the sidewalk prior to its destruction. The court stated, “[w]hat the trial court failed to consider, however, was the key piece of evidence has been destroyed. Even though several witnesses may be able to testify about the condition of the sidewalk, their descriptions on the scene differ. A photograph or videotape of the condition of the sidewalk at the time of the accident would be conclusive.” Id. Following the appellate court’s decision, State Farm filed a petition for leave to appeal, which was granted by the supreme court. At the beginning of the analysis portion of its opinion, the supreme court reaffirmed its belief in the soundness of the Boyd v. Traveler’s Insurance Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995) decision. The court once again stated that Boyd articulated a two-prong test for determining when there is a duty to preserve evidence. As a threshold matter, the court Second Quarter 2005 must first determine whether a duty arises by agreement, contract, statute, special circumstance, or voluntary undertaking. If so, the court must then determine whether the duty extends to the evidence at issue, i.e., whether a reasonable person should have foreseen that the evidence was material to a potential civil action. If the plaintiff does not satisfy both prongs, there is no duty to preserve the evidence at issue. Dardeen argued that he met the first prong of the Boyd test — the relationship prong — because there was a contract of insurance between State Farm and Kuehling. Therefore, State Farm was vested with the power or authority to guide or manage the actions of its insured. He also argued that State Farm had a direct stake in the outcome of the litigation and, consequently, owed a duty to preserve or document the existence and condition of relevant and material evidence. The supreme court rejected both of these arguments. According to the court, Dardeen was not privy to the contract of insurance between State Farm and Kuehling and, accordingly, that contract could not satisfy Boyd’s relationship prong. That prong can be satisfied only when the agreement or contract exists between the parties to the spoliation claim. The court also noted that although State Farm had an interest in the outcome of the litigation, the company simply did not exercise possession or control over Kuehling’s sidewalk at the time of or after the incident in question. As the court noted, Dardeen revisited the scene of the accident just a few hours after he was injured, but did not photograph the scene or ask Kuehling to preserve the sidewalk. More importantly, he never requested any evidence from State Farm and never requested that State Farm preserve the sidewalk or even document its condition. In reversing the judgment of the appellate court and affirming the entry of summary judgment in favor of State Farm, the supreme court stated the following: . . . [N]o Illinois court has held that a mere opportunity to exercise control over the evidence at issue is sufficient to meet the relationship prong…We do not intimate that, nor do we decide whether, possession is required in every negligent spoliation case. But, in order to avoid summary judgment, Dardeen needed to show something more than State Farm’s agent answering affirmatively to Kuehling’s question whether she could remove the raised bricks…The record here indicates that State Farm had neither possession nor control over Kuehling’s sidewalk and, therefore, owed Dardeen no duty to preserve it. Dardeen, 2004 WL 2745653, *5 (Dec. 2, 2004). *** In Adams v. Bath and Body Works, Inc., No. 1-02-3530 (1st Dist. March 17, 2005), the case revolves around a fatal fire in a house in Oak Forest, Illinois. The plaintiff, Steve Adams, claims that before going to bed on the night of June 17, 1997, he blew out several candles in the living room area of a house he rented from Sharon Kubasak. One of those candles was allegedly a “Garden Lavender Botanical Candle” manufactured and designed by Globaltech Industries and sold by Bath and Body Works. Sometime during the early morning hours of June 18, 1997, Adams awoke to a fire in his living room. Although he was able to escape the house with severe burns, his wife, Dixie, was overcome by smoke and died from burns and smoke inhalation. Six days after the fire, the plaintiff retained counsel. Though both state and city fire inspectors were unable to pin down the cause of the fire, they were able to determine that the fire began near a couch located in the living room. Based upon comments he overheard from one of these inspectors, plaintiff’s counsel removed two lamps that he believed were the potential cause of the fire. After it was determined that these lamps were not the cause of the fire, plaintiff’s focus shifted to the “Garden Lavender Botanical Candle” that he said was located on an end table near the couch in the living room. During this same time frame, unbeknownst to the plaintiff, Sharon Kubasak, the owner of the home where the fire occurred, hired Action Fire Restoration to clean up the debris and repair the damage to the house. Action threw out many of the plaintiff’s belongings, including the remains of the couch and end table that were in the living room at the time of the fire. Action also disposed of the living room carpet. Action was paid for its services by State Farm Fire and Casualty Company, Kubasak’s insurer. On April 26, 1999, the plaintiff filed suit. On February 20, 2002 the defendants filed a motion to dismiss the plaintiff’s complaint or, alternatively, to bar the plaintiff from introducing any evidence that a candle manufactured or sold by the defendants was involved in the fire at issue as a sanction under Illinois Supreme Court Rule 219(c) for his failure to preserve the couch, end table or carpet in question. On October 9, 2002, the trial court entered an order dismissing the plaintiff’s complaint as a sanction under Rule 219(c), finding that the plaintiff and his counsel had the opportunity and the responsibility to preserve relevant evidence and failed to do so, and framed their theory of the case only after allowing relevant evidence over which they had control to be destroyed in direct contravention of Boyd v. Travelers Insurance Com(Continued on next page) 13 IDC Quarterly Spoliation Revisited (Continued) pany, 166 Ill. 2d 188, 652 N.E.2d 267 (1995) and its progeny. The plaintiff then appealed. In deciding the appeal, the appellate court stated that it believed that two of the most prominent spoliation of evidence cases, Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995) and Shimanovsky v. General Motors Corp., 181 Ill. 2d 112, 692 N.E.2d 286 (1998), set forth two separate and distinct remedies for spoliation of evidence. According to the court: The lesson to be taken from this, we believe, is that the two remedies discussed in those cases, i.e., a claim for negligent spoliation of evidence in Boyd and dismissal as a sanction under Rule 219(c) in Shimanovsky, are separate and distinct . . . In other words, Shimanovsky and Boyd present a party confronted with the loss or destruction of relevant, material evidence at the hands of an opponent with ‘two roads diverged in a wood.’ He may either (1) seek dismissal of his opponent’s complaint under Rule 219(c) or (2) bring a claim for negligent spoliation of evidence. The mode of relief most appropriate will depend upon the opponent’s culpability in the destruction of evidence. The former requires conduct that is “deliberate [or] contumacious or [evidences an] unwarranted disregard of the court’s authority” and should be employed only “as a last resort and after all the court’s other enforcement powers have failed to advance the litigation.” Shimanovsky, 181 Ill. 2d at 123. The latter requires mere negligence, the failure to foresee “’that the [destroyed] evidence was material to a potential civil action.’” Dardeen, 213 Ill. 2d at 336, quoting Boyd, 166 Ill. 2d at 195. Adams, slip op. at 9-10. According to the appellate court, since the defendants chose to take the Rule 219(c) approach, any reliance on Boyd and its progeny to support the sanction requested was inappropriate. The dismissal of the plaintiff’s complaint as a sanction could only be upheld if there was evidence that the plaintiff’s conduct could be characterized as deliberate, contumacious or an unwarranted disregard of the court’s authority. Since the plaintiff did not engage in any knowing and willful defiance of the discovery rules or the trial court’s authority, had no knowledge that the evidence that had been destroyed may have been relevant and material at the time of the destruction (given his initial focus on the lamps as the cause of the fire), and played no role in and had no notice of the destruction of the evidence which the defendants claimed was essential 14 to their defense, the appellate court held that the trial court erred in dismissing his complaint as a discovery sanction and ordered that the plaintiff’s dismissed claims be reinstated. As these two most recent opinions demonstrate, whenever spoliation of evidence occurs, counsel for both sides must thoroughly investigate the facts and the law and determine the appropriate remedy to seek from the court. “The dismissal of the plaintiff’s complaint as a sanction could only be upheld if there was evidence that the plaintiff’s conduct could be characterized as deliberate, contumacious or an unwarranted disregard of the court’s authority.” Second Quarter 2005 Workers’ Compensation Report By: Kevin J. Luther Heyl, Royster, Voelker & Allen Rockford Illinois Supreme Court Speaks Again on the Normal Daily Activity Exception to Workers’ Compensation Claims The IDC Monograph that appeared in the IDC Quarterly, Third Quarter 2004, Volume 14, Number 3, addressed the normal daily activity exception to workers’ compensation claims in Illinois. The Monograph was prompted by the Illinois Supreme Court Decision in Sisbro II, which examined the compensability of aggravation of preexisting conditions in workers’ compensation claims. Sisbro, Inc. v. Industrial Comm’n, 207 Ill. 2d 193, 797 N.E.2d 665, 278 Ill. Dec. 70 (2003). The conclusion of Sisbro II was that the normal daily living exception exists in the State of Illinois notwithstanding the assertion of some representatives of the plaintiffs’ bar to the contrary. The IDC Monograph identified Twice Over Clean II, which was an appellate court decision following Sisbro II. In Twice Over Clean II, the appellate court interpreted Sisbro II to provide that a claimant’s probability to injury during normal daily activities is not an exception that applies to bar recovery despite the existence of a sufficient causal connection between work and injury. Instead, it was a limitation on when a sufficient causal connection may be found in the first place. Compensation was denied in Twice Over Clean II, and the Illinois Supreme Court recently issued a new decision as analyzed below. Twice Over Clean, Inc. v. Industrial Comm’n, 2005 WL 674681 (S. Ct. IL, March 24, 2005). By way of factual background, the workers’ compensation claimant was employed as a laborer for the respondent and was assigned to an asbestos removal job. On January 2, 1997, while performing heavy labor, he suffered chest pains. After he finished work, he went to his hotel and did not feel like eating. He again experienced chest pains in the hotel and broke out in a cold sweat. He was taken by ambulance to a hospital and was admitted and diagnosed with an acute inferior myocardial infarction. He was eventually released and returned to his home in Peoria, where he received additional care from his internist and cardiologist. Twice Over Clean, Inc., 2005 WL 674681 at *2. One of his treating physicians authored a report that was admitted into evidence. That report stated that apart from smoking, the claimant had limited risk factors for coronary artery disease. Another report from a Dr. Cohen concluded that, in his opinion, the myocardial infarction was precipitated by the heavy lifting that he did all day long at work on January 2, 1997. Dr. Cohen testified at an evidence deposition that the myocardial infarction might or could have been caused by the physical activity engaged in by the claimant on January 2, 1997. On cross-examination, Dr. Cohen concluded that the claimant had a 90 percent occlusion of the right coronary artery, which was very significant, and that any activity, and even no activity, by a person having that degree of occlusion could put enough stress on the heart to result in a myocardial infarction. He testified that anybody can experience a myocardial infarction, even at rest. He agreed with the cross-examiner’s statement that a person with that degree of occlusion is basically a heart attack waiting to happen. Id. The respondent presented the evidence deposition of a Dr. Wilner, who is board certified in internal medicine and cardiovascular diseases. He reviewed medical records and rendered an opinion that the claimant’s work activity was not a factor in the myocardial infarction based on the enzyme levels he had at the time of his admission. Those enzyme levels were within normal limits, indicating that the infarction had not occurred prior to the preceding five or six hours. Id. at *3. The arbitrator found that the heart attack arose out of and in the course of the employment. The Industrial Commission affirmed the award of compensation. The Circuit Court of Peoria County affirmed the Industrial Commission’s decision, but the appellate court reversed, applying the normal daily activity exception to defeat the workers’ compensation claim. (Continued on next page) About the Author Kevin J. Luther is a partner in the Rockford firm of Heyl, Royster, Voelker & Allen where he concentrates his practice in areas of workers’ compensation, employer liability, professional liability and general civil litigation. He also supervises the workers’ compensation practice group in the Rockford office. Mr. Luther received his J.D. from Washington University School of Law in 1984. He is a member of the Winnebago County, Illinois State and American Bar Associations, as well as the IDC. 15 IDC Quarterly Workers’ Compensation (Continued) See Twice Over Clean, Inc. v. Industrial Comm’n, 337 Ill. App. 3d 805, 786 N.E.2d 1096, 272 Ill. Dec. 262 (3rd Dist. 2003). The claimant filed a Petition for Leave to Appeal to the Supreme Court. The Petition for Leave to Appeal was initially denied, but a supervisory order was directed to the appellate court requesting that it reconsider its opinion in light of Sisbro II, 207 Ill. 2d 193 . The appellate court, in reconsidering its prior decision, held that in light of the claimant’s susceptibility to a heart attack outside of work, the claimant failed in the first instance to prove a sufficient causal connection between the work and his injury. Twice Over Clean, Inc., 348 Ill. App. 3d at 652. The Illinois Supreme Court, in its most recent Twice Over Clean, Inc. decision, stated that this conclusion completely ignored the competent testimony in the record establishing that Haulk’s work activity contributed to his risk of heart attack, and that his symptoms began while he was performing extremely stressful labor. The Illinois Supreme Court again noted that the Illinois Industrial Commission’s determination that a sufficient causal connection was demonstrated and is not against the manifest weight of the evidence in light of the testimony from one of the treating physicians. It noted that if a causal connection between the work activity and the injury is shown by competent testimony, no limitation or exception to compensation can be imposed to defeat a right of recovery. The Illinois Supreme Court noted that the respondent conceded in its brief that if the claimant’s history of onset of symptoms is accurate, then Dr. Cohen’s opinion on causal connection based on the history had adequate foundation and was entitled to be given weight by the trier of fact. The respondent also conceded in its brief that if the claimant’s testimony was accurate, the arbitrator’s reliance on that history was supported by the manifest weight of the evidence. The respondent also claimed, however, that the history testified to by the claimant was inaccurate because it conflicted with his description of the onset of symptoms that he gave to hospital personnel at the time of his admission on January 2, 1997. The respondent argued that the petitioner’s testimony contradicting the hospital records should be disregarded. With respect to this factual issue, the Illinois Supreme Court referred in its decision to Horath v. Industrial Comm’n, 96 Ill. 2d 349 (1983). In Horath, the supreme court held that the Industrial Commission’s decision denying compensation was not against the manifest weight of the evidence despite undisputed expert medical testimony establishing a causal connection between the injury and the claimant’s disability. The Industrial Commission noted that the claimant gave a different account of his symptoms to his treating physicians 16 immediately after the injury than what he had given to the doctor who testified at the hearing. The Illinois Supreme Court held that the finding regarding causal connection involved the credibility of the claimant, and it noted that assessing credibility is a function of the Industrial Commission, not of the reviewing court. Horath, 96 Ill. 2d at 356-57. The Illinois Supreme Court, in its most recent decision in Twice Over Clean, then noted that while some of the descriptions in the medical records reflected a different account of onset of symptoms than what the claimant’s testimony was before the arbitrator, the nature and progression of the symptoms, as described in both the records and the testimony, were similar. In light of this, the Illinois Supreme Court could not state that based on this particular record, the arbitrator’s acceptance of the claimant’s testimony was without foundation or based on speculation or conjecture. It concluded that there was a reasonable basis for the acceptance of Dr. Cohen’s opinion from that testimony. Therefore, the decision of the Industrial Commission was not against the manifest weight of the evidence. The Illinois Supreme Court stated that the normal daily activity limitation is relevant to the question of causation, but in this particular case, it could not be applied as a matter of law to defeat the claim. It reversed the appellate court’s decision, which found that the claimant failed to prove a sufficient causal connection between the work and the injury because of the claimant’s susceptibility to a heart attack outside of work. In conclusion, our current Illinois Supreme Court is prone to reject an argument that the normal daily activity exception bars recovery when the claimant’s physical condition has so deteriorated that the condition of ill-being could have been produced by normal daily activity despite a causal connection between the work and the condition. If the trier of fact (arbitrator and reviewing workers’ compensation commission panel) concludes that there is a causal connection between the work duties and the condition, then the Illinois Supreme Court may not apply the normal daily activity exception. Accordingly, these types of cases need to be won with a finding of lack of causal connection at the Workers’ Compensation Commission level for the normal daily living exception to be accepted and applied by the reviewing courts. Practitioners will need to develop overwhelming testimony and evidence that there is little or no credible causal connection evidence or opinions at the trial level that establish a medical causal connection. Second Quarter 2005 Legal Ethics (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after disclosure. By: Michael J. Progar Doherty & Progar, LLC Chicago Conflicts of Interest Arising from Representation of Insurance Company A lawyer who represents an insurance company as a direct party in a lawsuit is not prohibited from representing a plaintiff in a separate lawsuit against an insured of that insurance company. That was the conclusion of the American Bar Association’s Standing Committee on Ethics and Professional Responsibility, in Formal Opinion 05-435, released on December 8, 2004. The Opinion addressed the duty of an attorney under Model Rule of Professional Conduct 1.7, as amended by the American Bar Association’s House of Delegates through August 2003. Model Rule 1.7 provides the general rule that addresses conflicts of interest involving current clients of a lawyer or law firm. Illinois is one of 44 states that uses the Model Rules as the basis for its ethics rules. The comparable provision of the Illinois Rules of Professional Conduct (IRPC) is Rule 1.7, which is based on the pre-2002 version of Model Rule 1.7. An entirely new version of Model Rule 1.7 was adopted by the ABA House of Delegates in 2002, based on recommendations by the Ethics 2000 Commission. The revised Commentary to Model Rule 1.7, however, makes it clear that no change in the substance of the Rule was intended. Therefore, Formal Opinion 05-435 will provide valuable guidance in evaluating potential conflicts of interest to Illinois attorneys whose practice includes insurance defense and coverage. IRPC Rule 1.7 states: Rule 1.7. Conflict of Interest: General Rule (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after disclosure. (c) When representation of multiple clients in a single matter is undertaken, the disclosure shall include explanation of the implications of the common representation and the advantages and risks involved. As the updated language of Model Rule 1.7 makes clear, IRPC Rule 1.7 deals only with conflicts of interest involving current clients. Such a conflict of interest generally arises in two ways: 1) when the representation of a client will be directly adverse to another client (“directly adverse” test); or, 2) when the representation of a client may be materially limited by the lawyer’s responsibilities to another client (“materially limited” test). (Continued on next page) About the Author Michael J. Progar is a partner with the firm of Doherty & Progar, LLC. He practices in both the Indiana and Illinois offices. A trial attorney with more than 20 years of civil jury trial experience, Mr. Progar has tried over 50 jury trials to verdict in both state and federal courts. Areas of special concentration include complex product liability and toxic tort litigation, insurance coverage, fraud and bad faith litigation, construction litigation, premises liability and employers’ liability. He received his J.D. from DePaul University College of Law in 1981 and his B.A. in American Studies from the University of Notre Dame. Mr. Progar is a member of DRI, IDC, Defense Trial Counsel of Indiana, Indiana State Bar Association, State Bar of Wisconsin and the Lake County, Indiana Bar Association. He has served on various bar association committees in the areas of tort and insurance litigation and alternative dispute resolution. 17 IDC Quarterly Legal Ethics (Continued) The ethical questions addressed by the Committee in Formal Opinion 05-435 concerned the situation in which a lawyer who is representing an insurance company as a named party in a civil action, such as a declaratory judgment action, undertakes the representation of a plaintiff in a separate civil action, against a defendant for whom a defense is being provided under a liability insurance policy issued by that same insurance company. In the opinion of the Committee, such a simultaneous representation does not of itself result in a conflict of interest under the “directly adverse” test. The economic interest of the insurance company in that situation may be aligned with the interests of its insured for whom it is providing a defense in a lawsuit. However, any apparent economic opposition between the insurance company and the plaintiff in the second lawsuit is not a type of direct adversity that is contemplated by the Rules. Illinois does not permit a liability insurer to be named as a direct party in an action seeking to impose liability on its insured. Accordingly, there would be relatively few instances in which the interests of an insurance company would be directly adverse to those of another client represented by a lawyer. However, even if the potential representation of the plaintiff in the second lawsuit passes the “direct adversity” test, the question remains whether the lawyer’s representation of the plaintiff would be “materially limited” by the lawyer’s professional obligations to the insurance company client. Such an occasion could arise when, in representing a plaintiff against a defendant insured by an insurance company also represented by the lawyer, the effective prosecution of the plaintiff’s lawsuit requires either documentary or testimonial discovery from insurance company representatives. The lawyer might conclude that the desire to maintain a continuing relationship with the insurance company would create a significant risk of materially limiting the lawyer’s representation of the plaintiff, perhaps by causing the lawyer to fail to take or recommend action that might be in the plaintiff’s best interests in the action against the insurance company’s insured. In some instances, the attorney representing the plaintiff in the second action may be unaware of the identity of the defendant’s liability insurer when the representation is undertaken, or even until after suit is filed. At that point, it is incumbent upon the attorney to determine whether the representation of the plaintiff in the second action may be materially limited by or adversely affect the relationship with the insurance company in the first lawsuit. If so, to continue, the lawyer would require the written consent of each client, after disclosure of information sufficient to permit each cli18 ent to appreciate the significance of the potential conflict of interest. A related concern, although somewhat beyond the scope of the Opinion, is whether the lawyer’s representation of the plaintiff in the second lawsuit would be materially assisted by the lawyer’s knowledge of information regarding matters such as the insurance company’s claims evaluation and file handling procedures. If such information was acquired by the lawyer in connection with the representation of the insurance company, the lawyer may be required to decline or withdraw from representation of the plaintiff in the second lawsuit. To provide competent and diligent representation to the plaintiff might require the lawyer to disclose or use the insurance company’s confidences or secrets, in violation of IRPC Rule 1.6 (Confidentiality of Information). IRPC Rule “To provide competent and diligent representation to the plaintiff might require the lawyer to disclose or use the insurance company’s confidences or secrets, in violation of IRPC Rule 1.6 (Confidentiality of Information).” 1.6 prohibits both the disclosure and use of another client’s confidences or secrets, without consent. (In contrast, Model Rule 1.6 does not prohibit use of another client’s confidential information without consent, only disclosure.) In Illinois, a lawyer’s representation of an insurance company would raise a “directly adverse” conflict in relatively few instances. In practical terms, it would be more beneficial for an attorney whose practice involves insurance defense or insurance coverage to consider, at the outset, whether representation of a plaintiff against an insured of the insurance company makes good business sense. The value of the ongoing relationship with the insurance company client may Second Quarter 2005 outweigh any factors favoring representation of the plaintiff. However, perhaps the first question that should be asked is whether, under the circumstances present, the lawyer’s representation of the plaintiff would be “materially limited” by representation of the insurance company. The lawyer might well conclude in most, if not all cases, that it is better not to attempt to predict in advance of litigation whether the representation of the plaintiff would be adversely affected by the simultaneous representation of the insurance company. In any event, disclosure to the plaintiff of the lawyer’s relationship with the insurance company might raise questions in the mind of the plaintiff concerning the lawyer’s ability to diligently prosecute the plaintiff’s case against an insured of the insurance company. In practical terms, then, the analysis of a potential conflict involving current clients involves three steps. The first and most obvious step is to question whether there is a “directly adverse” client. That determination should cause little trouble to any lawyer. The second step is to determine whether the representation of the plaintiff would be “materially limited” by the lawyer’s obligations to the insurance company. If not, the third step is to determine whether representation of the plaintiff in a competent and diligent manner involves the possible disclosure or use of the insurance company’s confidences or secrets. It would seem, in most instances, that the proposed representation of the plaintiff would pass the “materially limited” test only with difficulty. At the very least, it may be bad business to take that plaintiff’s case. Insurance Coverage By: Peter R. Ryndak Johnson & Bell, Ltd. Chicago THE SWORD AND THE SHIELD: Defending the Carrier from Discovery in Coverage Actions In the context of insurance coverage litigation, policyholders have cast an increasingly broad net to discover information external to the policy at issue. When defending insurance coverage cases, less discovery is always more. The effective defense of an insurance carrier always requires that its counsel narrow the issues that will ultimately be litigated. This article discusses the policyholder’s strategies for obtaining vast materials outside the policy at issue, as well as the carrier’s defenses to these arguments. Case law interpreting these strategies is also examined. I. The Policyholder’s Broad Net to Capture Documents External to Policy Negotiation A. Discovery of Reserve Information Traditionally, courts would almost uniformly deny discovery requests concerning reserves established by insurers. More recently, courts have allowed limited discovery regarding (Continued on next page) About the Author Peter R. Ryndak is associated with Johnson & Bell, Ltd. and concentrates his practice primarily in the area of liability insurance coverage analysis and litigation. He regularly assists insurers in drafting new policy forms and coverages. Mr. Ryndak received his B.A. from Northwestern University and his J.D. from Loyola University-Chicago School of Law. He is a member of the CBA, DCBA, and IDC. 19 IDC Quarterly Insurance Coverage (Continued) reserves, especially where the reserves are set without the advice of counsel. 1. Policyholder Arguments in Favor of Discovery: Without exception, the most common argument proffered by an insured is that the establishment of a reserve constitutes an admission by the carrier concerning liability. The policyholder argues that if the carrier was not worried about the claim, it would not set any reserve. Along these lines, it is argued that the clearer the liability, the higher the reserve. 2. Insurer Arguments for Resisting Discovery: Reserves are often set pursuant to statutory requirement, and hence established via a highly regulated formula, which could never be considered tantamount to an admission of liability. Furthermore, reserves may be set at the advice of counsel, and not merely as an independent business decision reflecting the beliefs of an insurer regarding coverage obligations. An insurer may also establish reserves in anticipation of high litigation costs rather than as a consequence of the actual merits of the coverage action. There is also a public policy concern that the insurer should be adequately capitalized for foreseeable risk of litigation associated with coverage. This capitalization can only be accomplished with adequate reserves and should not be construed as an admission. 3. Case Law For Discussion: • Independent Petro Chemical Corp. v. Aetna Cas. & Sur. Co., 117 F.R.D. 283 (D.D.C. 1986) (reserve information irrelevant) In Independent Petro Chemical Corp., an insurance coverage action arising out of environmental liabilities, the insured sought discovery of reserve and reinsurance information set by the carrier. After an in camera inspection of the documents sought, the magistrate held that the reserves which were the subject of discovery were “of very tenuous relevance, if any relevance at all.” In denying the policyholder’s request for reserve information, the court held that “a reserve essentially reflects an assessment of the value of a claim taking into consideration the likelihood of an adverse judgment in that such estimates of potential liability do not normally entail an evaluation of coverage based upon a thorough and factual legal consideration when routinely made as a claim analysis.” Moreover, the court noted that where the reserves “have been established based on legal input, the results in the supporting papers most likely will be work product and may also reflect attorney-client privilege communications.” Hence, Independent Petro Chemical is an important case 20 for two reasons. First, it recognizes that reserves are often set as a matter of course and public policy; not to adequately fund potential losses. Moreover, reserve information does not reflect an evaluation or analysis of coverage based upon policy interpretation. Second, the Independent Petro Chemical case recognizes that oftentimes reserve information is set with the assistance of counsel. To that extent, then, reserve information may be afforded work product and attorney-client privileges. • In Re: Couch, 80 B.R. 512 (S.D.Cal. 1987) (discovery of reserve information not discoverable by reason of statutory regulation) In Re: Couch, represents an important milestone with respect to discoverability of reserve information because there, “An insurer may also establish reserves in anticipation of high litigation costs rather than as a consequence of the actual merits of the coverage action. There is also a public policy concern that the insurer should be adequately capitalized for foreseeable risk of litigation associated with coverage.” the court recognized that reserves are often required to be set by statute and/or regulation. Their values are calculated through the use of complicated formulas set by the regulatory body. Accordingly, the court held that because a carrier does not set a reserve according to discretion, but rather regulation, a reserve cannot accurately or fairly be equated with an admission of liability or the value of a particular claim. In Re: Couch provides an important argument against the disclosure of reserve information where the setting of same is controlled by statute or regulation. To the extent a carrier’s hands are tied in their ability to set reserves, the existence of Second Quarter 2005 reserves cannot be read to be an admission of liability. Hence, they are irrelevant and not reasonably calculated to lead to the discovery of admissible information. • But see, Champion International Corp. v. Liberty Mutual Ins. Co., 128 F.R.D. 608 (S.D.N.Y. 1989) (discovery of reserve information relevant and ordered produced in the absence of claims of privilege) In Champion International, a policyholder sued several of its carriers after the carriers refused to settle underlying product liability cases. Champion sought the carriers’ reserve information for the underlying claims. Notably, the carriers failed to assert an attorney-client privilege or work product doctrine objection to any of the requests. In an absence of these objections, the court, relying upon a series of unreported cases, recognized that reserve information was sufficiently relevant in coverage cases to be produced. Moreover, because the carriers did not assert that the reserves had been set or influenced by the advice of counsel, discovery of this information could not be protected by attorney-client privilege or work product doctrine. The lesson learned from Champion is that, where available, carriers should always assert a privilege objection to any requests for reserve information. cations between the carrier and its reinsurer may also contain explanations and/or clarifications of terms used within the underlying policy and may reflect the carrier’s understanding of the terms and provisions contained within its own policy. 4. Representative Cases: California: Union Oil Co. of Cal. v. Allianz Ins. Co., No. BC 028270 (Cal.Super.Ct. Feb. 17, 1993) (discovery allowed); District of Columbia: Independent Petrol Chem. Corp. v. Aetna Cas. & Sur. Co., 117 F.R.D. 283 (D.D.C. 1986) (discovery not allowed) New York: Gold Fields American Corp. v. Aetna Cas. & Sur. Co., No. 1987 9/89 (N.Y.Super.Ct. Feb. 24, 1994) (discovery not allowed) Pennsylvania: Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 139 F.R.D. 609 (E.D.Pa. 1991) (discovery not allowed) B. Discovery of Reinsurance Information The majority of cases passing upon the admissibility of an insurer’s reinsurance policies hold that they are not discoverable. Rare cases in which discovery is permitted most often involve “lost policy” issues. Another more ambiguous line of cases will order the disclosure of the reinsurance policies themselves, but will protect from disclosure communications between a carrier and its reinsurer. 1. Policyholder Arguments in Favor of Discovery: Policyholders will often argue that the reinsurance contract might contain terms used in the underlying insurance policy, thus aiding the interpretation of same. In addition, communi- 2. Insurer Arguments For Resisting Discovery: The most effective argument is that the policyholder lacks privity of contract with the reinsurers, and thus the contract between the carrier and its reinsurer is irrelevant to the meaning of the underlying policy. Furthermore, carriers argue that the reinsurance policy is irrelevant to the intent of the policyholder and the insurer when each executed the actual policy at issue in the coverage litigation. As to the communications between the carrier and its reinsurer, the carrier must argue that the similarity or difference of terms or provisions, or communications with respect to the reinsurance policy, has no probative value to understanding the underlying or primary policy, because the reinsurance policy is a separate and distinct contractual relationship among different parties. Moreover, placement of reinsurance necessarily turns on a business decision on the part of the carrier based upon business considerations aimed at minimizing exposure and does not relate to policy interpretation. 3. Case Law for Discussion: Rule 26(a)(1)(D) of the Federal Rules of Civil Procedure provides for “inspection and copying [of] any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or indemnify or reimburse for payments made to satisfy the judgment.” Cases where courts have ordered the production of reinsurance policies have turned upon the question of whether the policyholder has requested merely declaratory relief or whether a claim for monetary damages is present. Along these lines, if money damages are sought within the coverage litigation, courts are more likely to order the production of reinsurance agreements because declaratory relief is not contemplated by Rule 26. • Medmarc Cas. Ins. Co. v. Arrow International, Inc., 2002 WL 1870452 (E.D.Pa. 1002) (production of reinsurance policy required where carrier asserted counterclaim seeking indemnification from policyholder, thus, action sought money damages) In Medmarc, the CGL carrier filed an action against its insured seeking a declaration that it was not responsible to indemnify its insured for punitive damages awarded it in an underlying case. The insured filed a counterclaim seeking a declaration that the insurer had a duty to indemnify the (Continued on next page) 21 IDC Quarterly Insurance Coverage (Continued) insured with respect to the underlying action. Moreover, the counterclaim contained a count for breach of contract. During discovery, the insured sought reinsurance policies. The Eastern District of Pennsylvania noted that the counterclaim sought money damages and, as such, discovery of the reinsurance policies, themselves, was warranted. The point to be gleaned from Medmarc is that if the carrier brought its declaratory judgment action, alone, discovery of the reinsurance contracts would be denied. However, once the policyholder brought its counterclaim and sought money damages, in addition to declaratory relief, the claim became subject to Rule 26 of the Federal Rules and thus disclosure of reinsurance policies became warranted. (Despite its ruling that reinsurance contracts were discoverable, the Medmarc court, consistent with most other jurisdictions, held that discovery of reinsurance communications was not discoverable.) • Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 139 F.R.D. 609 (E.D.Pa. 1991) (aka Rhone-Poulenc I) (reinsurance agreements were not discoverable where coverage litigation sought declaratory relief, exclusively) In Rhone-Poulenc I, the Eastern District of Pennsylvania found that reinsurance agreements were not discoverable under Federal Rule 26. The court reasoned that disclosure of reinsurance agreements was not required in cases where the litigation between the policyholder and its carrier was limited to a request for declaratory relief and did not involve a claim for damages. In a declaratory action, no money award is sought, thus Federal Rule 26 is not implicated because any ruling in the case would not require the insurer to be “liable to satisfy part or all of a judgment which may be entered in the action.” See also, American Colloid Co. v. Old Republic Ins. Co., 1993 WL 2226781 (N.D.Ill. 1993). In addition to discovery of reinsurance policies, policyholders also seek to discover communications between insurers and their reinsurers regarding either the claim or coverages at issue. In responding to discovery, the practitioner should distinguish between the reinsurance agreements themselves and communications between insurers and their reinsurers. Communications oftentimes are completely irrelevant to the policyholder’s claim. However, some courts have permitted discovery of reinsurance communications where they may be relevant to the carrier’s efforts to rescind a policy or deny coverage on the basis of late notice. • Rhone-Poulenc I, supra (reinsurance communications irrelevant for purposes of interpreting policy terms) In Rhone-Poulenc I, the court denied discovery of communications between a carrier and its reinsurer aimed at interpreting the terms of the underlying policies. The court 22 held discovery of such information would not shed any light upon the mutual intent of policyholders and the carriers as it related to the actual policies at issue. The court reasoned, “Any information regarding reinsurance would at best be evidence of undisclosed unilateral intention, which would not be material to the interpretation of the insurance contract at issue.” Moreover, communications between an insurer and its reinsurer over the meaning of a particular policy provision are not discoverable in the absence of a finding that the term at issue is ambiguous and, thus, necessitates the use of extrinsic evidence to explain the policy. Hence, Rhone-Poulenc I demonstrates that communications between a carrier and its reinsurer are not valuable to understanding the underlying or primary policy. Rather, reinsurance merely represents a business decision on the part of the carrier to minimize or spread risk. • Rhone-Poulenc II, 1991 WL 23763 (E.D.Pa. 1991) (discovery of communications to reinsurers allowed where the carrier asserts late notice and misrepresentation as a defense to coverage) Following its decision in Rhone-Poulenc I, the Eastern District of Pennsylvania was again called upon to rule upon discovery of reinsurance communications. However, this time the carrier asserted affirmative defenses to coverage based upon late notice and misrepresentation, which in the court’s view made the discovery sought relevant. Indeed, the court did not reverse itself and reasserted that the discovery was irrelevant to determining the mutual intent of the parties to the insurance contract. However, the discovery of reinsurance information was relevant to the affirmative defenses of late notice and misrepresentation. By raising these defenses, the court noted that the carrier necessarily opens the door to discovery regarding late notice or misrepresentation. If the carriers gave notice to their reinsurers through various communications, the discovery of such communications would, then, either corroborate or undercut their late notice defense as it relates to the policyholder. Accordingly, communications related to the notice issue was warranted. As for the discovery of reinsurance communications related to misrepresentations of the policyholder, the court held that the defense clearly puts at issue the question of what the defendants knew at the time the disputed policies were issued. Although the reinsurance communications are not relevant to the issue of policy interpretation, such information may be extremely relevant to whether the policyholder made a misrepresentation to the carrier. Accordingly, the communications were subject to discovery. Thus, carriers in insurance coverage actions have solid arguments against the disclosure of reinsurance communica- Second Quarter 2005 tions. It is almost universally recognized that such communications are irrelevant to policy interpretation and merely reflect business decisions in the operations of risk allocation. However, as Rhone-Polenc II demonstrates, an insurance carrier may unwittingly open the door by raising affirmative defense such as late notice, lost policies, or misrepresentation. Inherent in these defenses are questions as to what the insurer knew with respect to the claims and when they were on notice of same. Presumably, the insurance carrier would keep its reinsurers informed to the best of their knowledge “Although the reinsurance communications are not relevant to the issue of policy interpretation, such information may be extremely relevant to whether the policyholder made a misrep- documents were disclosed to the broker and the reinsurers with the expectation that their confidentiality would be preserved and that, above all, the common interest doctrine as it applied to the carrier and its reinsurers would protect the documents from disclosure. Indeed, the increasing emphasis upon discovery of reinsurance communications places carriers in a difficult position. In order to narrow the issues to be litigated, it is imperative that the carrier protect from discovery red herring documents that are external to the policies themselves. However, carriers also operate under an extremely important duty for a frank and honest disclosure to their reinsurers whenever presented with a potential claim. Carriers can reduce exposure and keep the issues at trial narrow by carefully considering whether the defenses they assert in a coverage litigation unwittingly make reinsurance documents relevant. Furthermore, it is advisable for insurers engaged in litigation between themselves to not seek discovery of reinsurance communications that will result in reported cases which may undercut their legal positions in subsequent coverage litigation with policyholders. II. The Policyholder’s Broad Net to Capture Documents Related to Policy Negotiation and Application resentation to the carrier.” A. The Production of Underwriting Files and Claims Manuals with respect to these issues. Accordingly, discovery of such communications goes to the heart of these affirmative defenses as raised by insurance carriers. • Minnesota School Boards Association Ins. Trust v. Employers Ins. Co. of Wausau, 183 F.R.D. 627 (N.D.Ill. 1999) (discovery of reinsurance communications protected by work product and common interest doctrine) In Minnesota School Boards, the policyholder sued its carrier over coverage for a fire loss. The carrier produced a portion of its reinsurance file but asserted that other documents were protected by privileges afforded by the work product and common interest doctrines. The court was called upon to determine whether the withheld communications were discoverable. The policyholder argued that the carrier waived any and all protection over the documents when they were sent to reinsurers by way of insurance brokers. The court rejected this argument and held that the broker acted as a mere conduit for protected communications between the carrier and its reinsurer. Moreover, the court noted that the 1. Policyholder Arguments in Favor of Discovery: These documents may show that the carrier’s legal position with respect to the meaning of a term or a provision at issue is contradicted by the interpretation the carrier communicated to its own underwriting and/or claims personnel. As such, to the extent any of these documents exist, they should be produced. Claims manuals are particularly relevant in that they disclose the manner in which a disputed term or provision is customarily applied and understood by the carrier within its own organization and throughout the industry. Furthermore, the underwriting file may contain the carrier’s instructions to its employees on marketing and servicing the policies at issue. To the extent that these directions contradict the legal position taken by the carrier in coverage litigation, it will be useful to the policyholder. 2. Insurer Arguments For Resisting Discovery: Internal documents kept in-house by the carrier, explaining the insurer’s underwriting practices, do not reflect the (Continued on next page) 23 IDC Quarterly Insurance Coverage (Continued) mutual intent of the parties to the policy at issue. As such, any document reflecting the unilateral intent of either the insurer or the insured is irrelevant to deciding the mutual intent of the contracting parties. Along these lines, claims handling manuals are similarly useless in determining the meaning of an insurance policy as it applies to a specific claim. 3. Case Law For Discussion: More than any other type of extrinsic evidence, policyholders seek claims manuals through discovery in the hope that it will demonstrate an inconsistency between the carrier’s internal policies and their claims handling practices. An effective defense of a carrier requires staunch opposition to this type of discovery premised on the fact that the unilateral and internal intent of the carrier is simply irrelevant to the meeting of the minds with respect to the insurance contract and will not assist in interpreting the policy. • Safeguard Lighting Systems Inc. v. North American Specialty Ins. Co., 2004 WL 3037947 (E.D.Pa. 2004) (claims manuals not reviewed or utilized by claims handler in connection with underlying claim not relevant or reasonably calculated to lead to discoverable material) In Safeguard Lighting, the insureds sought their carrier’s claims manuals through discovery. The carrier objected to the production of such documents as not relevant or reasonably calculated to lead to admissible information. Along these lines, the carrier objected that it maintained a huge library of insurance literature including a technical claims manual that provided a general outline of claims handling for general liability business. However, the carrier claimed that the claims manager relied on his 15 years of experience rather than on this manual when adjusting the claim at issue. Hence, production of a claims manual not utilized in adjusting the claim was both irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. The Eastern District of Pennsylvania agreed with the carrier that requiring the production of its entire claims manual library would be unduly burdensome. However, to the extent the adjuster utilized any internal material or instructions, to adjust the claim at issue, such material was ordered produced. The Safeguard case is important in that it illustrates that claims manuals which are otherwise irrelevant, may become relevant to the extent that the adjuster depended on the same to adjust the claim. When responding to discovery of this nature, the practitioner should be sure to discuss with the claims handler whether she referred to any internal memoranda to adjust the claim. To the extent any internal claims manuals were not utilized, the practitioner should object that their production is 24 irrelevant and not reasonably calculated to lead to discovery of admissible material. • Garvey v. Nat’l Grange Mut. Ins. Co., 167 F.R.D. 291 (E.D.Pa. 1996) (discovery of claims manuals not permitted as they were irrelevant to policy interpretation) In Garvey, the Eastern District of Pennsylvania examined the discovery of claims manuals. This time, the court reasoned “When responding to discovery of this nature, the practitioner should be sure to discuss with the claims handler whether she referred to any internal memoranda to adjust the claim.” that because the internal procedures within the manual were trade secrets and not related to a plaintiff’s claim as to whether his loss was covered under the relevant insurance contract, discovery of the claims manual was not permitted. Furthermore, the court noted that straying from internal procedures within a manual does not establish, in and of itself, a claim for bad faith. The Garvey case is another instructive touchtone insofar as it illustrates the importance of raising an objection based upon proprietary information. Generally, where available, the practitioner should raise an objection that the claims manuals are trade secrets. As such, any production of same should be either in camera or under seal. Whether claims manuals are discoverable also depends on whether the policyholder has alleged bad faith. If bad faith is at issue, then the production of the claims manual may well be compelled. See, e.g., Reavis v. Metropolitan Property & Liab. Ins. Co., 117 F.R.D. 160 (S.D.Cal. 1987) (ordering the production of claims information where policyholder has sufficiently alleged a cause of action for bad faith). Thus, in order to narrow the issues presented to the court, it is important for the practitioner to seek the dismissal of any bad faith counts before answering responsive pleadings. If the practitioner is successful in eliminating the bad faith count, the policyholder Second Quarter 2005 will not be able to argue that the claims materials should be produced because they are irrelevant to the issue of the carrier’s conduct and alleged bad faith. 4. Representative Case Law: Delaware: E.I.U. duPont de Nemours & Co. v. Admiral Ins. Co., 1993 WL 19662 (Del.Super.Ct. Jan. 8, 1993) (discovery allowed) Florida: Industrial Indem. Ins. Co. v. Crown Auto Dealership, Inc., 935 F.2d 240 (11th Cir. 1991) (discovery allowed) Illinois: United States Fidelity & Guaranty Co. v. Specialty Coatings Co., 535 N.E. 2d 1071 (Ill. App.), appeal denied, 545 N.E. 2d 133 (Ill. 1989) (discovery allowed) New Jersey: Morton Int’l., Inc. v. General Accident Ins. Co., 134 N.J. 1 (1993) (discovery allowed) West Virginia: Joy Technologies, Inc. v. Liberty Mutual Ins. Co., 421 S.E.2d 493 (W.Va.1992) (discovery allowed) C. The Discovery of Advertising and Marketing Materials More recently, policyholders are seeking to obtain advertising and marketing materials in an attempt to demonstrate that the policyholder was led to believe that claims at issue would be covered based upon the representations made by the carrier. Now that a claim is filed, the carrier relies upon the “fine print” to undercut the commercial expectations of the policyholder. 1. Policyholder Arguments in Favor of Discovery: Discovery of advertising materials may demonstrate that the carrier made public representations that certain types of losses are covered by its products. Marketing and advertising materials may uncover representations by the carrier, which are at odds with its current legal position. 2. Insurer Arguments for Resisting Discovery: Advertising and marketing materials are not part of the insurance contract and therefore cannot alter or change the scope of coverage that is provided by the language of the policy itself. In cases where the insured is a large or sophisticated corporation, perhaps equipped with its own risk management personnel, it is preposterous to believe that the insured was duped by the carrier’s mass marketing or advertising campaign. Furthermore, depending on the breadth of the policyholder’s discovery request, searching for all potentially responsive advertising and/or marketing materials would be extraordinarily burdensome, costing a great deal of personnel-hours and taking an unreasonably long time. 3. Case Law for Discussion: Reported case law regarding discovery efforts to obtain advertising material of carriers is scarce. Those cases that do exist, however, oftentimes provide little analysis behind the reasons for their respective discovery rulings. As such, reported case law is inconsistent and a coherent jurisprudence has yet to emerge. • Hoechst Celanese Corp. v. National Union Fire Ins. Co. of Pittsburgh, PA, 623 A.2d 1099 (Sup.Ct.Del. 1991) (discovery of advertising materials held to be irrelevant) Here, the insured filed a motion to compel answers to interrogatories and production of documents related to the advertising and marketing efforts. The policyholder argued that advertising and promotional material would provide evidence of the carrier’s pre-litigation interpretation of the standard form CGL policy and their coverage intent. The court disagreed, finding that advertising and promotional materials were irrelevant to the interpretation of the policy, and, in any event, were not likely to lead to the discovery of admissible evidence. Because the policyholder failed to make an adequate showing of the relevance of the information sought, their motion to compel was denied. • State Farm Mut. Auto. Ins. Co. v. Engelke, 824 S.W.2d 747 (Tx.App. 1992) (discovery of advertising materials compelled where materials were relevant to claim of bad faith) Here, the insurer sought mandamus after the court ordered it to produce advertising materials as part of a discovery request. The carrier objected that the production of advertising materials was irrelevant because the plaintiff had not shown that she relied on any advertising in purchasing her insurance policy. The court disagreed and ordered the production of advertising materials because such materials would show the disparity between the carrier’s promises to consumers and its treatment of those consumers when they actually file claims. This was particularly relevant, the court reasoned, because of the plaintiff’s claims of punitive damages and bad faith. Again, the Engelke case, illustrates the importance of narrowing the claims against the carrier when defending it and eliminating bad faith claims wherever possible. D. Representative Case Law: Delaware: E.I.U. duPont de Nemours & Co. v. Admiral Ins. Co., 1993 WL 19662 (Del. Super. Ct. Jan. 8, 1993) (discovery allowed) (Continued on next page) 25 IDC Quarterly Insurance Coverage (Continued) Conclusion In recent years, policyholders have cast an aggressive and broad net to discover information external to the policy at issue. The practitioner defending these actions must seek to narrow the issues that will be presented in the litigation. Efforts to properly frame issues which will ultimately be presented begin in discovery. It is imperative, then, that the practitioner resist discovery efforts which will take the court’s eye off the ball and divert attention away from the insurance policy which is the actual subject of the litigation. Oftentimes the policyholder’s attempts to obtain external documents is nothing more than a campaign designed to cast the carrier in a poor light or portray the insurance company as “speaking from both sides of its mouth.” A court must always be reminded that this is a simple contract action and that the majority of the documents sought by the policyholder are simply unrelated to the meaning of the contract at issue. Indeed, case law passing upon these issues is both sparse and inconsistent. The purpose of this article is to provide the defense bar with strategies which will aid in coping in this environment. Employment Law Issues By: Kimberly A. Ross* Cremer, Kopon, Shaughnessy & Spina, LLC Chicago Age Supreme Court Finds Disparate Impact Theory Available Under ADEA In Smith v. City of Jackson, Mississippi, 125 S. Ct. 1536 (2005), police and public safety officers employed by the city of Jackson, Mississippi (“City”) contended the salary increases received in 1999 violated the Age Discrimination in Employment Act (ADEA) of 1967 (29 U.S.C. § 621) because they were less generous to officers over the age of 40 than to younger officers. The officers’ suit raised the question of whether the disparate impact theory of recovery for cases brought under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) is cognizable under the ADEA. In May 1999, the City adopted a pay plan that divided the five basic office positions of police officer, master police officer, police sergeant, police lieutenant and deputy police chief, into a series of steps and half steps. The wage for each range was based on comparable communities in the southeastern United States. Most of the officers were in the About the Author Kimberly A. Ross is a partner with the law firm of Cremer, Kopon, Shaughnessy & Spina, LLC. She received her J.D. from DePaul University College of Law and her B.A. from the University of Michigan. Her practice areas include employment law and general tort litigation. Ms. Ross is an Assistant Editor of the IDC Quarterly. In addition to IDC, she is a member of the Defense Research Institute, Decalogue Society of Lawyers and the Women’s Bar Association. * The author acknowledges the assistance of Jennifer L. Colvin, an associate with Cremer, Kopon, Shaughnessy & Spina, LLC, in the preparation of this article. 26 Second Quarter 2005 three lowest ranks, and those ranks had officers both under and over the age of 40. The two highest ranks had few officers and were composed of individuals all over the age of 40. Almost two-thirds of officers under 40 received raises of more than 10 percent, whereas less than half of those over 40 did. The City’s explanation for the differential was it perceived a need to raise the salary of junior officers to make them competitive with comparable positions in the market. The older officers brought suit under the ADEA, claiming the City deliberately discriminated against them because of age (disparate treatment), and that they were adversely affected by the plan because of their age (disparate impact). In analyzing the claim, the Supreme Court first looked at the legislative history of both Title VII and the ADEA, and noted the ADEA provision prohibiting discrimination on the basis of age paralleled Title VII’s provision prohibiting discrimination on the basis of race, color, religion, sex or national origin. It further noted the ADEA, unlike Title VII, narrowed its coverage by permitting any otherwise prohibited action where the differentiation is based on reasonable factors other than age (RFOA). Nonetheless, the Court began its review with the premise that when Congress uses the same language in two statutes having similar purposes, it presumes Congress intended the text to have the same meaning in both statutes. In reviewing Title VII’s provisions, the Court reiterated that Congress had directed the thrust of the statute to the consequences of employment practices and not simply the motivations. As such, Title VII did not require a showing of discriminatory intent. The Court further noted neither Title VII nor comparable language in the ADEA simply prohibits action that limits, segregates or classifies persons, but rather prohibits actions that deprive any individual of employment opportunities or otherwise adversely affect his or her status as an employee. Thus, the Court found the text of the ADEA focuses on the effects of the action on the employee rather than the motivation for the action of the employer. Smith, 125 S. Ct. at 1542. The Court further found the RFOA provision of the ADEA further supports that disparate impact is available under the ADEA. Id. at 1544. While determining recovery on a disparate impact theory is available under the ADEA, the Court noted the scope of disparate impact liability under the ADEA is narrower than under Title VII because of the RFOA provision found in the ADEA. The Court also noted the ADEA’s scope of disparate impact liability was narrower due to Title VII’s amendment by the Civil Rights Act of 1991 (105 Stat. 1071). The Court pointed out that one of the purposes of the amendment to Title VII was to modify the Court’s holding in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), a case that nar- rowly construed the employer’s exposure to liability on a disparate impact theory. The court further pointed out that while the amendments expanded the coverage of Title VII, they did not amend the ADEA or speak to the subject of age discrimination. Thus, Wards Cove’s pre-1991 interpretation of Title VII’s identical language remained applicable to the ADEA. Smith at 1545. With regard to the City’s pay plan, the Court noted the petitioners did not identify any specific test, requirement or practice within the plan that had an adverse impact on older workers. The Court found it was not enough to simply allege there was a disparate impact on workers, or point to a generalized policy that leads to such an impact. Rather, an employee is responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities. Id. The Court further noted the petitioners’ failure to identify the specific practice being challenged is the sort of omission that could result in employers being potentially liable for the myriad of innocent causes that may lead to statistical imbalances. Id. In addition, the Court found that not only did the petitioners fail to identify the relevant practice, but the record also clearly established the City’s pay plan was based on reasonable factors other than age since it attempted to make junior officers’ salaries more competitive with the comparable job market. Retaliation Title IX Encompasses Retaliation Against Person Complaining of Sex Discrimination In Jackson v. Birmingham Board of Education, 125 S. Ct. 1497 (2005), Roderick Jackson, a teacher in the public schools of Birmingham, Alabama, brought suit against the Birmingham Board of Education (“Board”), alleging the Board retaliated against him because he had complained about sex discrimination in the high school’s athletic program. Jackson claimed the Board’s retaliation violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. The Supreme Court determined Title IX encompasses claims of retaliation where the funding recipient retaliates against an individual because he has complained about sex discrimination. In 1993, the Board hired Jackson to serve as a physical education teacher and girls’ basketball coach. In August 1999, Jackson was transferred to Ensley High School, where he discovered the girls’ team was not receiving equal funding and equal access to athletic equipment and facilities. The lack of (Continued on next page) 27 IDC Quarterly Employment Law Issues (Continued) funding, equipment and facilities made it difficult for Jackson to do his job as the team’s coach. As a result, in December 2000, Jackson began complaining to his supervisors about the unequal treatment of the girls’ basketball team. Jackson’s complaints went unanswered and he began to receive negative work evaluations. Ultimately, Jackson was removed as the girls’ coach in May 2001. Jackson filed suit, alleging the Board violated Title IX by retaliating against him for protesting the discrimination against the girls’ basketball team. Title IX prohibits sex discrimination by recipients of federal education funding. The statute provides that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). The Court noted it previously held Title IX implies a private right of action to enforce its prohibition on intentional sex discrimination, and this right includes actions for monetary damages by private persons. See, Cannon v. University of Chicago, 441 U.S. 677 (1979); Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992). The court concluded retaliation against a person because that person complained of sex discrimination is another form of intentional sex discrimination encompassed by Title IX’s private cause of action. In doing so, the Court noted that retaliation, by definition, is an intentional act and a form of “discrimination” because the complainant is being subjected to differential treatment. Jackson, 125 S. Ct. at 1500. Moreover, retaliation is discrimination “on the basis of sex” because it is an intentional response to the nature of the complaint: an allegation of sex discrimination. Id. Thus, retaliation by a funding recipient against a person because he complains of sex discrimination constitutes intentional “discrimination” ‘on the basis of sex,’” in violation of Title IX. Id. In determining that Title IX encompasses claims of retaliation, where the funding recipient retaliates against an individual because he has complained about sex discrimination, the Court rejected the Board’s urging to draw a comparison between Title IX’s provisions regarding retaliation with those of Title VII. See, 42 U.S.C. § 2000(e)-2. The Court noted that Congress expressly mentioned retaliation in Title VII and spelled out in greater detail the conduct that constitutes discrimination in violation of that statute, whereas Title IX’s cause of action was implied. As such, the Court found Title IX is a broadly written general prohibition on discrimination, followed by specific, narrow exceptions. Since Congress did not list any specific discriminatory practices when it wrote 28 Title IX, the Court determined its failure to mention one such practice did not tell it anything about whether the intended practice was to be covered. Id. at 1501. The Court further rejected the Board’s argument that Jackson was not entitled to invoke Title IX’s private right of action because he was an indirect victim of sex discrimina- “Title IX prohibits sex discrimination by recipients of federal education funding. The statute provides that ‘no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.’ ” tion. The Court, again noting the broad wording of Title IX, found the statute does not require that the victim of retaliation also be the victim of the discrimination that was the subject of the original complaint. The Court noted that while the language of Title VII makes it an unlawful employment practice for an employer to discriminate against any individual because of such individual’s race, color, religion, sex or national origin, Title IX does not contain any such limitation. The Court determined that where the retaliation occurs because the complainant speaks out about sex discrimination, the “on the basis of sex” requirement is satisfied. Id. Second Quarter 2005 Sexual Orientation Illinois General Assembly Amends Human Rights Act to Include Discrimination on Basis of Sexual Orientation as Unlawful Discrimination On January 21, 2005, Public Law 93-1078 was codified. This law amends the Illinois Human Rights Act (“Act”) (775 ILCS 5/1 et seq.) to include sexual orientation as a protected status. It is important to note the Act defines sexual orientation as “actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity, whether or not traditionally associated with the person’s designated sex at birth. ‘Sexual orientation’ does not include a physical or sexual attraction to a minor by an adult.” 775 ILCS 5/1-103(O-1). The Act makes clear the amendment does not require employers or labor organizations to give preferential treatment or special rights based on sexual orientation or to implement affirmative action policies or programs based on sexual orientation. 775 ILCS 5/1-101.1. Rather, the amendment simply makes it unlawful to discriminate against a person because of his or her sexual orientation in connection with employment. 775 ILCS 5/1-102. The law is effective as of January 1, 2006. Sexual Harassment Acts Falling Outside of Filing Limitations Not Time-Barred In Jenkins v. Lustig, 354 Ill. App. 3d 193, 820 N.E.2d 1181, 290 Ill. Dec. 114 (3rd Dist. 2004), Dena Jenkins filed a discrimination charge on April 26, 2001, with the Department of Human Rights (“DHR”) against her employer, Schuster Media Group, and Lee J. Schuster, alleging the employer subjected her to sexual harassment by engaging in acts that created a hostile work environment. Jenkins alleged Schuster had harassed her from August to December 5, 2000. Jenkins also alleged she was retaliated against for protesting the harassment from December 2000 until the time she filed her charge. An investigator for the DHR organized Jenkins’ allegations into groups. Allegations A and B were based on acts that took place between August and October 2000. Allegations C and D were based on actions occurring between October 28, 2000, and April 26, 2001. The DHR issued a notice dismissing allegations A and B for lack of jurisdiction under Section 7A-102(A)(1) of the Illinois Human Rights Act (775 ILCS 5/7A-102(A)(1)), which states a charge must be filed within 180 days after the date a civil rights violation has been committed. Jenkins filed a request for review of the dismissal, arguing the DHR erred because Schuster’s sexually offensive behavior was a course of continuing and uninterrupted conduct between August and December 2000. However, the DHR’s chief legal counsel upheld the dismissal and an appeal followed. On appeal, Jenkins maintained Section 7A-102(A)(1) should be interpreted in lockstep with the United States Supreme Court’s interpretation of the time limitations in Title VII under National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). In Morgan, the Supreme Court held a hostile work environment claim under Title VII included events that occurred prior to and outside the 180- or 300-day limitations period, as long as at least one act occurred within the applicable filing period. The appellate court noted that in Gusciara v. Lustig, 346 Ill. App. 3d 1012, 806 N.E.2d 746, 282 Ill. Dec. 449 (2nd Dist. 2004), it had previously ruled that Section 7A-102(A) (1) is governed by the Morgan rule, and that this rule applies unless the acts within the jurisdictional period have no relation to those outside the period and are no longer part of the same hostile work environment claim. In analyzing Jenkins’s claim, the appellate court concluded Jenkins’s claims, based on acts that occurred prior to October 28, 2000, were timely. The acts that occurred both before and after the 180-day filing requirement involved the same employer, were committed by the same person, occurred in similar settings and continued with relative frequency from August to December 2000. Thus, the court concluded a fact finder could easily conclude the conduct that occurred prior to the 180-day filing requirement was part of the same actionable hostile environment. In reversing the dismissal of Jenkins’s claims, however, the court noted there is a difference between the Illinois statute and its federal counterpart with regard to the issue of equitable defenses. While the filing period under Title VII is a statute of limitations and allows for the raising of certain equitable defenses, the Illinois statute is jurisdictional and the equitable defenses of waiver and tolling do not apply. Hence, a lengthy period between individual incidents and the filing of a charge increases the likelihood that those acts that occurred within the 180-day filing period will be unrelated to the earlier acts and will not be part of the same hostile work environment. Reasonable Jury Could Find Harassment Policy Not Effective In Loughman v. Malnati Organization, Inc., 395 F.3d 404 (7th Cir. 2005), Kathleen Loughman brought suit against her employer, Malnati Organization, Inc., claiming it failed to (Continued on next page) 29 IDC Quarterly Employment Law Issues (Continued) protect her from sexual harassment by her co-workers. Malnati Organization owns and operates a string of pizzeria restaurants in the Chicago area. Loughman began working at the Naperville, Illinois, restaurant when she was 17 years old. During her first three weeks on the job, kitchen workers whistled at her and made several inappropriate comments. Loughman reported the comments to the restaurant’s manager, Jim Solis, and told him the comments made her feel uncomfortable. The comments and propositions by the kitchen workers continued despite Solis telling Loughman he would talk to the kitchen staff. Five months into her employment, Martin Ruellas, a kitchen employee, cornered Loughman and attempted to kiss her. When Loughman tried to escape Ruellas’s grasp he blocked her path for several minutes before relenting. Loughman reported the incident to Solis the following morning. Solis informed Ruellas he would be fired if he ever touched Loughman again. Solis then reported the incident to a high-ranking Malnati employee. Ruellas never again bothered Loughman. Nearly a year later, Loughman entered a walk-in cooler when two co-workers, Hector Hernandez and Guillermo Siffuentes, walked in behind her and closed the door. Hernandez pinned Loughman against the wall, grabbed her chest and tried to put his hands down her pants. Loughman screamed and swung her arm, hitting Siffuentes. Siffuentes opened the cooler door as he fell back against it. Loughman was able to run out and immediately told Julie Luba, a fellow employee, what happened. Luba reported the incident to Solis and Solis in turn questioned Loughman about the incident. Luba also discussed the confrontation with Cori Gros, another manager, who told Luba that Loughman should expect such behavior from the kitchen staff and that Loughman should not be nice to the kitchen staff. Loughman continued working the same shifts as Hernandez and Siffuentes, and she continued to inform Solis that the two men were still making inappropriate comments. No action was taken. Over a year and a half after the cooler incident, a driver for Malnati’s walked up behind Loughman, ran his hands through her hair, slid one hand up her shirt, wiggled his fingers on her stomach, giggled and ran away. Loughman immediately reported this incident to Gros. A few days later, Malnati’s district manager apologized to Loughman for the incidents and began investigation of the first two incidents. That investigation led to Hernandez being fired. In reversing the district court’s granting of summary judgment in favor of Malnati’s, the Seventh Circuit noted employers may raise an affirmative defense to a claim under 30 Title VII by showing it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). The court further noted an employer is liable for a co-employee’s harassment only when it is negligent either discovering or remedying the harassment. Loughman, 395 F.3d at 407. While the district court found Malnati’s had an effective sexual harassment policy in place, the Seventh Circuit was not convinced. Given the serious physical violations Loughman endured, the appellate court concluded a reasonable jury could determine that simply talking to the people involved in the first two incidents was not a sufficient response. Further, the court found the mere fact that none of the employees physically assaulted Loughman a second time did not necessarily mean Malnati’s response was adequate. Additionally, the court concluded the consistent stream of harassment actually suggested Malnati’s policy was not very effective at all. A jury could have determined at some point Malnati’s management needed to stop issuing verbal warnings and start taking disciplinary action. The Seventh Circuit also found Malnati’s other arguments regarding the actions Loughman took to report the incident were better made to a jury. While Malnati’s argued Loughman should have reported the incidents to more senior managers, the court noted Loughman’s direct managers knew about each of the incidents. Thus, a reasonable jury could have determined Loughman took adequate steps to report the incidents to her supervisors. Id. at 408. Race/Gender/Age Supervisor’s Conduct Insufficient to Maintain Hostile Work Environment Claim In Ezell v. Potter, 400 F.3d 1041 (7th Cir. 2005), Stephen Ezell sued his employer, the United States Postal Service (“USPS”) for race, gender and age discrimination. He contended he was treated in a disparate manner and that he was subject to a hostile environment. The district court granted summary judgment in favor of the USPS. On appeal the Seventh Circuit affirmed in part and vacated and remanded in part. Ezell, a Caucasian man over the age of 50, maintained an uneasy relationship with his supervisor, Tangela Wright, an African-American woman. On March 6, 2001, Ezell was on his mail route when he stopped to buy his lunch at a fast food Second Quarter 2005 restaurant. Ezell claims he purchased his lunch, made a threeminute phone call, and then headed to a convenience store to purchase a newspaper. He then drove to his route, parked his truck and ate his lunch within his allowed 30 minutes. When he exited his truck to begin deliveries, he saw another USPS vehicle behind him. He approached the other vehicle, and Wright and another USPS supervisor began searching Ezell’s truck. Ezell was asked where he was on his route, but no mention was made about Ezell taking an overextended lunch period. Six days later Ezell was called in for questioning by Wright and Postmaster David Dew. When Ezell could not recall where he had lunched six days earlier, Wright and Dew treated him as though he were being uncooperative. Approximately two weeks later Ezell was issued a letter terminating his employment. The reason for the termination was that Ezell had received pay for time not worked. The letter claimed Ezell had exceeded his 30-minute lunch by another 30 minutes “The reason for the termination was that Ezell had received pay for time not worked. The letter claimed Ezell had exceeded his 30-minute lunch by another 30 minutes without informing a supervisor.” without informing a supervisor. Ezell filed a grievance and won reinstatement. However, he received a written warning regarding the lunch incident. On June 4, 2001, Ezell filed a one-page “EEO Complaint of Discrimination in the Postal Service.” He subsequently filed an equal employment opportunity (EEO) investigative affidavit further describing the basis of his complaint. He asserted Wright discriminated against him on the basis of age, sex and race in seeking his dismissal. He also claimed Wright often made derogatory remarks about older workers in general and about him in particular, and that she often referred to his gray hair and slow work. He asserted Wright’s co-supervisor told a new hire the plan was to get rid of older carriers and replace them with younger, faster carriers. Ezell also claimed Wright made racist comments when referring to the differences between the Indiana towns of Gary and Valparaiso. Ezell reported Wright threatened to take Valparaiso workers to Gary for carrier training, taunting them with claims they would not last a week in the primarily African-American city. He also reported Wright was pleased when a Caucasian man was shot and killed in Valparaiso. Ezell detailed evidence of Wright’s sexism by claiming Wright told the employees women were faster carriers then men because women wanted to get home to their children whereas men wanted to “milk all the overtime they can get.” Ezell, 400 F.3d at 1045. Ezell also complained that Wright gave favorable assignments to women. Ezell filed suit against the USPS after the EEOC issued a decision finding he had failed to establish a prima facie case for race, gender and age discrimination. The district court granted judgment in favor of the USPS on all claims, finding Ezell failed to exhaust administrative remedies on his hostile enviroment claims. In the alternative, the court found Wright’s treatment of Ezell was not severe or pervasive enough to meet the standards for hostile environment claims. On his claims of disparate treatment, the court found Ezell failed to present sufficient direct evidence of race, gender or age discrimination, and also failed to make out a claim under the burden-shifting method. On appeal, Ezell claimed he sufficiently preserved his hostile environment claim in his original EEO complaint. The Seventh Circuit noted a plaintiff may pursue a claim not explicitly included in an EEOC complaint only if the allegations fall within the scope of the earlier charges contained in the EEOC complaint. In determining whether Ezell’s current allegations fell within the scope of the earlier charges, the court looked to whether the allegations were like or reasonably related to those contained in the EEOC complaint. The court found Ezell’s charge to be ambiguous with respect to a claim for hostile environment. Although he referenced his discharge, he also complained his supervisor made racist, sexist and age-related comments to him in a rude, disrespectful and confrontational manner. He also stated he was “uncomfortable” working in this “environment.” Despite the ambiguity of Ezell’s claims, the Seventh Circuit concluded it need not conclusively determine whether Ezell’s allegations set forth a hostile environment claim because the conduct Ezell described was not severe or pervasive enough to qualify as a hostile environment. The appellate court found Ezell provided no detail on the regularity of Wright’s offensive comments, and while her comments were rude and inappropriate, they were not so severe as to alter the conditions of (Continued on next page) 31 IDC Quarterly Employment Law Issues (Continued) Ezell’s employment. In reviewing Ezell’s disparate treatment claim the appellate court noted the lower court granted summary judgment in favor of the USPS because the district court believed Ezell could not demonstrate his employer had taken an adverse employment action against him because the letter of termination was withdrawn before it ever took effect. The Seventh Circuit disagreed and found the termination letter did constitute an adverse employment action even though it was later withdrawn. The appellate court determined that to hold otherwise would allow harassing supervisors to demote employees who rejected their behavior with impunity, so long as they later reversed the demotion/termination and restored the employees to their former positions. The appellate court also found Ezell produced evidence that Wright treated similarly situated employees outside his protected classes more favorably. As such, the Seventh Circuit affirmed the district court’s judgment in favor of the USPS on the hostile environment claim but found Ezell’s race, sex and age claims were sufficiently supported to survive summary judgment and were therefore remanded. Gender Romantically Motivated Favoritism to Female Subordinate Not Sex Discrimination In Preston v. Wisconsin Health Fund, 397 F.3d 539 (7th Cir. 2005), Jay Preston, a male dentist, asserted his former employer, the Wisconsin Health Fund (“the Fund”), discriminated against him on account of his sex in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e et seq.) when it replaced him as director of the Fund’s dental clinic with a woman. The Fund provides health services directly in clinics it owns, as well as indirectly by paying for medical or dental treatment its participants obtained at outside clinics. In the year prior to Preston’s replacement as director, the Fund lost $1 million. Despite presenting the Fund’s chief executive officer (CEO) with ideas for stemming the flow in a well-written business plan, Preston was terminated. Linda Hamilton, a much younger dentist, who had no apparent credentials for the job except eagerness, replaced Preston. There also were unsubstantiated rumors that Hamilton and the CEO were having an affair. In affirming the district court’s granting of summary judgment in favor of the Fund, the Seventh Circuit noted a male executive’s romantically motivated favoritism toward a female 32 subordinate is not sex discrimination even when it disadvantages a male competitor of the woman. While Preston tried to bolster his case by pointing out that the CEO gave large raises to several women, the appellate court found Preston provided no details that would enable a trier of fact to infer the raises were motivated by the recipients’ sex. The court found Preston’s inferences that more women than men got large raises, together with the favoritism shown Hamilton, were not enough to get him to a jury because courts take a realistic view of the circumstances in which an inference that men are discriminating in favor of rather than against women is plausible. The court noted it is not surprising when women discriminate in favor of women and when men discriminate in favor of men. However, it is surprising when men discriminate against men in favor of women. The court further noted such discrimination is not surprising when the job in question is traditionally “women’s work” such as nursing, in which men believe women can do better than men based on a fixated stereotype. The court also noted such discrimination is also not surprising when a male executive is under pressure from affirmative action plans, customers, public opinion, the EEOC or a judicial decree that the company’s workforce needs to increase diversity. However, Preston gave no reason as to why men might be expected to discriminate against men at the Fund. In order to raise a triable issue of discrimination, Preston had to present some evidence beyond the bare fact that a woman got a job that he wanted to get or keep. While the gross disparities in qualifications between Hamilton and Preston might have been such evidence, Preston did not develop this evidence and instead insisted Hamilton was given the job for personal reasons. Second Quarter 2005 Case Note By: Robert T. Park Snyder, Park & Nelson, P.C. Rock Island Damages for Loss of a Pet: Measuring the Immeasurable The plaintiff, Mary Ann Anzalone, a 44-year-old unmarried woman, had no children and lived alone with her pets. According to her complaint, when she boarded her female cat, Blackie, at the defendant, Kragness Animal Hospital, the hospital personnel negligently allowed a Rottweiler dog to enter the room where the cat was exercising. The large dog attacked and killed Blackie. Ms. Anzalone’s first amended complaint included claims sounding in bailment, negligence, breach of fiduciary duty, and intentional infliction of emotional distress. She sought compensation of $100,000 plus attorney fees and costs. Acting on the defendant’s section 2-615 motion to dismiss, the Cook County Circuit Court dismissed the emotional distress count with prejudice, struck the prayers for relief in the remaining counts, and granted the plaintiff the right to file a further amended complaint. Rather than replead, Ms. Anzalone appealed. Anzalone v. Kragness Animal Hospital, 2005 WL 525432 (March 7, 2005). She did not contest the dismissal of her claim for infliction of emotional distress but sought reversal of the order striking her compensatory damage claims. The appellate court noted that early Illinois cases allowed damages for the death of a pet based on the animal’s qualities and commercial value, but not all pets have a measurable market value. According to the Restatement (Second) of Torts § 911, Comments c and e, it would be unfair to deny the plaintiff compensation just because a pet had no market value, so that the trier of fact should determine the “value to the owner” (also called “actual value to the owner” or “actual value”) as the measure of damages. This approach was used in Jankoski v. Preiser Animal Hospital, Ltd., 157 Ill. App. 3d 818, 110 Ill. Dec. 53, 510 N.E.2d 1084 (1st Dist. 1987). The Jankoski court held that the value to the owner may “include some element of sentimental value in order to avoid limiting the [owner] to merely nominal damages.” 157 Ill. App. 3d at 821. The appellate court in Anzalone emphasized that even the loss of the companionship of a child was not allowed at common law, and there is no statute comparable to the Wrongful Death Act (740 ILCS 180/0.01 et seq.) that would allow compensation for the loss of a pet’s company.1 Nevertheless, under the holding of Jankoski and the New York case on which it was grounded,2 the “value to the owner,” although not based on a monetary calculation, can include an element of the owner’s feeling for the pet. However, Jankoski acknowledged that “damages in such cases, while not merely nominal, are severely circumscribed.” Id. The Anzalone court considered plaintiff’s prayer for $100,000 “extravagant,” but found that was no reason to dismiss the complaint. It therefore reversed and remanded the case for further proceedings, noting that it would be up to the circuit court’s discretion to assign the case to the appropriate division of the court regardless of the ad damnum plead. In other words, the compensation to which the plaintiff will be entitled for the loss of Blackie will be the actual value of the beloved cat to her, so long as the damages are not enough for the court to deem the award excessive. On this vague standard, it is hard to say exactly how defense counsel will advise the client regarding the probable verdict range. Note: The Illinois Supreme Court has allowed leave to appeal in Redmond v. Socha, 352 Ill. App. 3d 1049 (1st Dist. 2004), discussed in the last Case Note column (“A Lost Counterclaim Gives Plaintiff ‘A Second Bite,’” IDC Quarterly, First Quarter 2005, page 33). Endnotes The court noted two acts that allow for recovery from one who harms a pet, the Humane Care for Animals Act (510 ILCS 70/16.3), dealing with the injury or death of a pet subjected to intentional acts of aggravated cruelty or torture, and the Assistance Animal Damages Act (740 ILCS 13/1 et seq.), concerning damages for unprovoked harm to an animal trained to assist a physically impaired person. 2 Brousseau v. Rosenthal, 110 Misc.2d 1054, 443 N.Y.S.2d 285 (Civ. Ct. 1980). 1 About the Author Robert T. Park is a principal in the firm of Snyder, Park & Nelson, P.C. He received his B.A. and J.D. from the University of Illinois. For 30 years, he has practiced law in Rock Island, concentrating in defense of civil cases. Mr. Park is a member of DRI, ISBA and IDC, serving since 1993 as an IDC Director. He is the most recent past Editor-In-Chief of the IDC Quarterly. 33 IDC Quarterly Civil Rights Update By: David A. Perkins Heyl, Royster, Voelker & Allen Peoria Qualified Immunity for Violating a “Class of One” Equal Protection Rights: Lunini v. Grayeb, 395 F.3d 761 (7th Cir. 2005) Under the doctrine of qualified immunity, governmental officials are shielded from civil damages as long as their conduct does not violate “clearly established” statutory or constitutional rights of which a reasonable person would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Applying the doctrine of qualified immunity in a case that alleges a violation of equal protection rights under the so-called “class of one theory” is particularly difficult, largely due to the inability of the courts to precisely define the contours of a class of one equal protection claim. The lingering uncertainty regarding the legal standards applicable to “class of one” equal protection claims was acknowledged in the recent Seventh Circuit Court of Appeals opinion of Lunini v. Grayeb, 395 F.3d 761 (7th Cir. 2005), reh’g en banc denied, Mar. 3, 2005. In that case, Joseph Lunini, a Peoria, Illinois, resident, alleged that certain Peoria police officers violated his equal protection rights when they refused to arrest Charles Grayeb, Lunini’s former boyfriend, after an alleged dispute. Defendant Grayeb, a member of the Peoria City Council, and Lunini met and began a personal relationship in 1995. The two moved into a single-family home in 1997 on High Street in Peoria that Grayeb owned. During the first half of 2000, Lunini and Grayeb started to have major difficulties in their relationship. Later that year, and after a City Council meeting, Grayeb met with John Stenson, the Peoria Chief of Police, to discuss his problems with Lunini, and asked Stenson how he might have Lunini removed from the residence. After hearing of this conversation, Lunini made plans to move out of the house. On June 30, 2000, Lunini and Grayeb allegedly had a confrontation at the house, and, according to Lunini, Grayeb slapped him and punched him in the face. Lunini called the police and reported that he had been assaulted. Two Peoria po34 lice officers, Stuart Barden and Jeffrey Kice, were dispatched to the home. According to Lunini, the officers laughed and “made faces” when Lunini mentioned his relationship with Grayeb. Lunini also claimed that Grayeb called the police chief, who thereafter called Barden and Kice and told them that if there was insufficient evidence of a crime and for an arrest, they should take statements from Grayeb and Lunini and escort Lunini off the property. Lunini filed a lawsuit alleging that the Peoria police officers refused to arrest Grayeb due to his position on the Peoria City Council and that Lunini was therefore, being denied equal protection of the laws. In denying the defendant officers’ motion for summary judgment on Lunini’s equal protection claim, the district court rejected the officer’s request for qualified immunity, ruling that Lunini’s equal protection right to be free from deliberate withdrawal of police protection for purely personal reasons was “clearly established.” The defendants appealed the narrow issue of whether Lunini’s equal protection rights were “clearly established” for qualified immunity purposes at the time of the incident in question, June 30, 2000. Judge Cudahy, with Chief Judge Flaum and Circuit Judge Posner joining, wrote the opinion, and concluded that the equal protection rights alleged to have been violated were not “clearly established” at the time of the incident and, therefore, reversed the district court ruling. To implement the qualified immunity inquiry, a court must first determine whether the alleged conduct violated a constitutional or statutory right in the first place; second, the court must determine whether the right in question was “clearly established” at the time of the alleged incident. In its opinion, the court of appeals acknowledged that a “class of one” equal protection claim may be advanced when: (1) the plaintiff alleges that she has been intentionally treated differently from others similarly situated; and (2) there is no rational basis for the difference in treatment or the cause About the Author David A. Perkins is a partner in the Peoria firm of Heyl, Royster, Voelker & Allen. He concentrates his practice in the areas of civil rights, municipal liability, insurance fraud, and first party property claims. Mr. Perkins received his B.A. in 1985 from the University of Illinois at Springfield and his J.D. from the University of Iowa in 1987. He is a member of the Peoria County, Illinois State, and American Bar Associations. Second Quarter 2005 of the differential treatment is a “totally illegitimate animus” toward the plaintiff by the defendant. See McDonald v. Village of Winnegka, 371 F.3d 992, 101 (7th Cir. 2004) and Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Even though the court believed the right in question was not clearly established at the time of the incident, the court elected to address Lunini’s allegation that the alleged conduct violated Lunini’s equal protection right. The court found it difficult to “The court found it difficult to discern any equal protection violation under the circumstances since Lunini had not demonstrated that he suffered unequal treatment, the essence of an equal protection violation.” discern any equal protection violation under the circumstances since Lunini had not demonstrated that he suffered unequal treatment, the essence of an equal protection violation. It noted that a “class of one” claim must fail where the plaintiff fails to identify someone who, although similarly situated, was intentionally treated differently than the plaintiff. Based on the record presented, the court of appeals found there was no evidence that the Peoria Police Department always arrested an alleged assailant when responding to domestic violence incidents. Thus, the court viewed the Lunini/Grayeb altercation as simply an incident that involved the ordinary exercise of police discretion. The court also refused to conclude that the officer’s failure to arrest Grayeb amounted to a withdrawal of physical protection in any meaningful sense. The court observed that, even if assuming that Lunini’s allegation stated a cognizable “class of one” equal protection claim, Lunini nevertheless could not prevail because the law on that particular subject was not clearly established at the time of the incident on June 30, 2000. The court then examined its three “class of one” equal protection cases that had been decided prior to June 2000: Esmail v. Macrane, 53 F.3d 176, 179 (7th Cir. 1995); Olech v. Village of Willowbrook, 160 F.3d 386, 388 (7th Cir. 1998); and Hilton v. City of Wheeling, 209 F.3d 1005 (7th Cir. 2000). Hilton, the most analogous of the cases, involved an allegation that the police were unfair in responding to complaints among neighbors. Specifically, the plaintiff alleged that the local police arrested him on several occasions in response to complaints from his neighbors, but they also did not respond similarly to his own report about those neighbors. The court of appeals concluded that the plaintiff in Hilton failed to present a valid equal protection claim since he had presented no evidence of improper police animus against him, but merely alleged uneven enforcement of local laws. However, unlike Hilton, where it was clear that the plaintiff was being treated differently from his neighbors, it was unclear that that occurred in the Lunini case. The Lunini court found that it would be difficult to charge the defendant police officer with notice of a “clearly established” constitutional right based upon the open-ended pronouncements in those three cases arising under largely distinguishable facts. Judge Cudahy’s opinion emphasized that the contours of the right at issue were not sufficiently clear such that a reasonable official would understand that what he did violated the arrestee’s rights. Judge Cudahy questioned the clarity of the legal standard applicable to “class of one” cases and acknowledged that it continued to “elude some of this circuit’s most capable judges.” The court concluded that the equal protection rights alleged to have been violated by the officers were not clearly established at that time of the incident. The court felt uncomfortable imposing a duty upon police officers to comprehend a legal standard that was still in its developing stage. Given these findings, the court felt that the officers should be entitled to qualified immunity protection. 35 IDC Quarterly Medical Malpractice By: Edward J. Aucoin, Jr. Hall, Prangle & Schoonveld, LLC Chicago On March 30, 2005, the Illinois Supreme Court took many cases off the appellate stay calendars of circuit courts throughout the state. It did so not by releasing a decision, but rather, by refusing to hear the plaintiff’s appeal from the Fourth District’s decision in Cargill v. Czelatdko, 353 Ill. App. 3d 654, 818 N.E.2d 898, (Ill. App. 4 Dist., 2004), thereby supporting that decision. In the four months since the Fourth District released its opinion in Cargill, Defense Counsel in healing arts malpractice cases have filed motions to dismiss any complaint filed without a supporting physician’s report that included the name and address of the reviewing physician. Motions to dismiss were also filed as to any healing arts malpractice complaint filed without an affidavit from the filing attorney stating that essentially the same matter had not been previously voluntarily dismissed. The circuit courts around the state responded to these motions in different ways. In fact, in some circuits, the motions were handled differently depending upon which judge the case was assigned. Not all circuits placed these motions on appellate stay calendars. Some circuits followed the Fourth District’s decision in Cargill and granted the motions to dismiss. Still others found that the reviewing physicians were akin to consultants and therefore, did not have to be disclosed regardless of how P.A. 90-579 was worded. The reason for the difference in handling these motions is likely the result of uncertainty as to the current status of the Healing Arts Malpractice Act (735 ILCS 5/2-622) since the passage of Public Act 90-579 by the Illinois Legislature. The Illinois Supreme Court’s decision in Best v. Taylor Machine Works, 179 Ill. 2d 367, 689 N.E.2d 1057 (1997), stated that certain provisions of tort reform instituted by Public Act 89-7 were unconstitutional. The court also found that the legislation from that Act, which affected many individual statutes, was “inseperable.” Therefore, all of the provisions were thrown out, regardless of whether they were specifically found unconstitutional by the court. The supreme court emphasized that “all of the remaining provisions of Public Act 36 89-7, which were not challenged in the instant cases, were deemed invalid solely on grounds of severability. As such, the General Assembly is free to reenact whatever provisions it deems desirable or appropriate.” Best, 179 Ill. 2d at 471, 689 N.E.2d at 1106. However, Public Act 90-579 was passed after the Illinois Supreme Court’s decision in Best. Section 2-622 of the Illinois Code of Civil Procedure, as drafted in P.A. 90-579, included language that required the name and address of the reviewing physician, as well as the affidavit from the plaintiff’s counsel attesting to the fact that the claim had not been re-filed after previously having been voluntarily dismissed. Now, the district courts had to decide whether these re-instituted requirements were consistent with the court’s decision in Best and therefore enforceable. In Cargill, the plaintiffs re-filed a complaint against multiple defendants, alleging healing arts malpractice in July 2003. The plaintiffs were unable to procure a reviewing physician’s report when they filed the action originally, so they had voluntarily dismissed the original action in July 2002. In September 2003, the defendants filed a motion to dismiss the re-filed complaint based upon the version of Section 2-622 re-instituted by P.A. 90-759, which the trial court denied. Cargill, 818 N.E.2d at 900. The trial court thereafter granted the defendants’ motion to certify three questions for interlocutory review pursuant to Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a). Those questions were: 1) “Did P.A. 90-579 resurrect the amendments to Section 2-622 of the Code of Civil Procedure (inserted by P.A. 89-7) which had been found unconstitutional by the Illinois Supreme Court’s decision in Best v. Taylor Machine Works…?”; About the Author Edward J. Aucoin, Jr. is an associate in the Chicago firm of Hall, Prangle & Schoonveld, LLC. He has eight years of experience in medical malpractice defense, commercial litigation, and contract litigation practice. Mr. Aucion’s substantial client base includes private hospitals and medical practice groups, physicians and other medical professionals, and national commercial corporations. He has extensive experience in preparing complex litigation for trial, and has second-chaired medical malpractice trials in Cook County and DuPage County. Mr. Aucoin received his B.A. from Loyola University of New Orleans and his J.D. from Loyola University of New Orleans School of Law. He is also a member of the IDC. Second Quarter 2005 2) “If the response to the first question listed above is in the affirmative, then in a re-filed healing art malpractice case, does the Circuit Court have discretion pursuant to Section 2-622(a)(2) to ‘waive’ the requirement found at 735 ILCS 5/2-622(a)(2) that a plaintiff’s attorney certify that he ‘has not previously voluntarily dismissed an action based on the same or substantially the same acts, omissions, or occurrences’?”; and 3) “Assuming an answer in the affirmative to question No. 1 above, and assuming that the Circuit Court does not have discretion to waive this certification requirement mandated by Section 2-622(a)(2), does the plaintiff’s attorney’s failure to provide the certification mandate dismissal of an action with prejudice under Section 2-622(g)?” Cargill, 818 N.E.2d at 900-901. The Fourth District reviewed the matter under the de novo standard and stated that the cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. Citing People v. Latona, 184 Ill. 2d 260, 269, 703 N.E.2d 901, 906 (1998). According to the court, the words of a statute are to be given their plain and commonly understood meanings and when the language of a statute is clear and unambiguous, it will be given effect without resort to the other tools of statutory construction. Cargill, 818 N.E.2d at 901. The court found that Public Act 90-579, which Governor Ryan signed into law in May 1998, added to Section 2-622 the requirements that the name and address of the health professional authoring the report be included in the report and that an affidavit be included that stated the plaintiff had not previously voluntarily dismissed an action based on the same or substantially the same acts. Id. at 903; See also 735 ILCS 5/2-622 (West 2002). Addressing the first Certified Question, the Fourth District found that Public Act 90-579 resurrected the amendments to Section 2-622 that were previously inserted by Public Act 89-7. The court stated that “[w]here statutes are enacted after judicial opinions are published, it must be presumed that the legislature acted with knowledge of the prevailing case law.” Id. at 903, citing People v. Hickman, 163 Ill. 2d 250, 262, 644 N.E.2d 1147, 1153 (1994). Since the General Assembly passed Public Act 90-579 after the Illinois Supreme Court’s decision in Best, the court presumed the General Assembly acted with the knowledge of the Best ruling. Since the language contained in the version of Section 2-622 provided by P.A. 90-579 was not specifically held unconstitutional in Best, but merely held infirm on the principle of severability, the General Assembly was entitled to re-enact the pre-Best version of Section 2-622 if it chose to do so. Cargill, 818 N.E.2d at 904. In support of its decision on the first Certified Question, the Fourth District cited the Second District’s ruling in Giegoldt v. Condell Medical Center, 328 Ill. App. 3d 907, 767 N.E.2d 497 (2002). In finding the physician’s address was specifically required on a 2-622 reviewing health professional’s report in Giegoldt, the Second District recognized the amendatory effect of Public Act 90-579 and implicitly indicated it resurrected the portions of Section 2-622 struck down by Best. Giegoldt, 767 N.E.2d at 502. The court in Cargill found that when looking at the plain language of P.A. 90-579, if a physician’s report is not attached to the complaint, then the plaintiff must attach an affidavit indicating he “has not previously voluntarily dismissed an action based upon the same or substantially the same acts.” 735 ILCS 5/2-622(a)(2) (West 2002). Since the plaintiffs could not make such a statement in their affidavit, their complaint was subject to dismissal. Therefore, the court’s answer to Certified Question No. 1 was “yes.” Cargill, 818 N.E.2d at 905. Addressing Certified Question No. 2, the Fourth District found that a trial court has no discretion under Section 2-622 to waive the requirement that a plaintiff’s attorney certify he has not previously voluntarily dismissed an action based on the same or substantially the same acts, omissions, or occurrences. The court stated that “[i]n construing a statute, a court is not at liberty to depart from the plain language of the statute by reading into it exceptions, limitations, or conditions that the legislature did not express.” Id., citing Prairie Rivers Network v. Illinois Pollution Control Board, 335 Ill. App. 3d 391, 400, 781 N.E.2d 372, 379 (2002). The court found that the requirements under Section 2-622 are not mere suggestions, but are statutory requirements, which a court cannot alter or waive, but rather must follow. The court acknowledged that trial courts may grant plaintiff an extension of time to comply with the requirements of Section 2-622, but those courts do not have discretion to overlook a plaintiff’s noncompliance or deem it unnecessary for a plaintiff to follow the statute. Cargill, Cargill, 818 N.E.2d at 905-906. Therefore, the court’s answer to Certfied Question No. 2 was “no.” As to Certified Question No. 3, the Fourth District held that the plaintiff’s attorney’s failure to provide the certification provided in the statute mandated dismissal of the action with prejudice under Section 2-622(g) (735 ILCS 5/2- 622(g) (West 2002)). Id. While a plaintiff’s failure to file a certificate under (Continued on next page) 37 IDC Quarterly Medical Malpractice (Continued) the Act shall be grounds for dismissal under Section 2-622(g), the court generally has the discretion to dismiss an action with or without prejudice. Id., citing Ingold v. Irwin, 302 Ill. App. 3d 378, 383, 705 N.E.2d 135, 139 (1998). However, under the facts of the case before it, the Fourth District found that the reason no affidavit regarding prior dismissal was filed was because the plaintiffs could not file such an affidavit since the matter had been previously voluntarily dismissed. Dismissing their complaint without prejudice could not “change that fact nor cure the defect in their complaint.” Cargill, 818 N.E.2d at 906. Thus, the Fourth District’s answer to answer to Certified Question No. 3 was “yes,” and the case was remanded to the trial court for further proceedings. The Fourth District’s opinion in Cargill will have limited effect on those cases with motions filed in response to the re-instated requirements of Section 2-622 under P.A. 90-579. Courts will most likely find the complaints insufficient under Section 2-622, but dismiss them without prejudice. Reports that lack the reviewing health professionals name and address can be quickly amended and the cases re-filed. Likewise, attorneys with cases that have not previously been voluntarily dismissed and who simply overlooked the requirement for an affidavit attesting to such facts will prepare that affidavit and re-file the case. Occasionally, a defense attorney may be able to use the name and address provided to demonstrate that the physician named in the report fails to meet the requirements set forth in Section 2-622 and then seek dismissal of the complaint on that basis. To the fortunate few who are granted a dismissal with prejudice as a result of the Fourth District’s holding in Cargill, enjoy the moment and hope that Section 2-622 does not draw the ire of certain lobbyists in Springfield the way the Hospital Licensing Act previously has. If that happens, we can probably expect Section 2-622’s language to return to the days before tort reform, or worse. Evidence and Practice Tips By: Joseph G. Feehan Heyl, Royster, Voelker & Allen Peoria Court Holds that Each Plaintiff in a Multiple-Plaintiff Civil Case is Entitled to One Motion for Substitution of Judge as of Right Under Section 2-1001(a)(2) of the Code of Civil Procedure (735 ILCS 5/2-1001(a)(2)) In Aussieker v. City of Bloomington, 355 Ill. App. 3d 498, 822 N.E.2d 927, 291 Ill. Dec. 52 (4th Dist. 2005), the Fourth District Appellate Court held that each plaintiff in a multiple-plaintiff civil case is entitled to one motion for substitution of judge as a matter of right pursuant to 735 ILCS 5/2-1001(a)(2). The plaintiffs consisted of 17 taxpayers and real estate owners in the city of Bloomington (“City”). The plaintiffs alleged that the City did not exercise appropriate diligence in soliciting bids for the construction of a municipal arena. The City filed a motion to dismiss, and a hearing was scheduled before Judge Charles Reynard. Before the hearing was held, the plaintiff, James Elder, filed a motion to substitute Judge Reynard pursuant to Section 2-1001(a)(2). Judge Reynard granted Elder’s motion, and the case was reassigned to Judge Donald Bernardi. About the Author Joseph G. Feehan is a partner in the Peoria office of Heyl, Royster, Voelker & Allen, where he concentrates his practice in commercial litigation, products liability and personal injury defense. He received his B.S. from Illinois State University and his J.D. (Cum Laude) from the Northern Illinois University College of Law. Mr. Feehan is a member of the ISBA Tort Law Section Council and is also a member of the Peoria County, Illinois State and American Bar Associations. He can be contacted at [email protected] 38 Second Quarter 2005 The City then set a hearing on its motion to dismiss before Judge Bernardi. Two days before the hearing, the plaintiff, Arnold Zimmer, filed a motion for substitution of judge as of right pursuant to Section 2-1001(a)(2). The City objected to Zimmer’s motion, contending that it was brought for the purpose of delay and that Zimmer had not preserved his right to file a second motion for substitution of judge because he did not previously inform the court that he was not joining in Elder’s previous motion for substitution. Judge Bernardi denied Zimmer’s motion for substitution of judge. The court found that the 17 named individual plaintiffs constituted one party and thus collectively were entitled to only one motion for substitution of judge under Section 2-1001(a)(2). The trial court further explained that a case involving multiple plaintiffs can be distinguished from one involving multiple defendants, who are considered separate parties entitled to multiple motions for substitution under Illinois law. On appeal, the First District Appellate Court reversed, finding that the plain language of the statute (Section 2-1001(a)(2)) provides that each party shall be entitled to one substitution of judge without cause as a matter of right. The court also noted that this statute is “to be liberally construed, and where the conditions are met, the trial court has no discretion to deny the request unless it is shown that the motion was made simply to delay or avoid trial.” 355 Ill. App. 3d at 929 (citations omitted). The Aussieker court also rejected the City’s argument that a case involving multiple plaintiffs should be treated differently than a case involving multiple defendants in applying Section 2-1001(a)(2). The Aussieker court stated: I n this case, the defendant attempts to distinguish multiple plaintiffs from multiple defendants for purposes of applying Section 2-1001(a)(2) of the Civil Code. We are not persuaded. The statute refers to “each party” without differentiating between plaintiffs and defendants, and the statute is silent with respect to situations involving multiple plaintiffs and multiple defendants. (Citation omitted). Because the statute does not define the word “party,” it must be given its plain and ordinary meaning. The word “party” is defined as “[o]ne by or against whom a lawsuit is brought.” Black’s Law Dictionary, 1154 (8th ed. 2004). Each of the 17 plaintiffs in this case is bringing a lawsuit against the city and, according to the plain and ordinary meaning of the word “party,” each plaintiff should be entitled to file a motion for substitution of judge under Section 2-1001(a)(2) of the Civil Code. Id. The City also argued that a civil defendant’s constitutional right to obtain “prompt justice” would be denied because numerous motions for substitution of judge in multiple-plaintiff cases would result in substantial delay in the resolution of a civil case. Interestingly, the Aussieker court did not necessarily disagree with the City’s position, but stated that the City’s remedy is to contact the legislature and urge it to revise the language contained in Section 2-1001(a)(2). The Aussieker court stated: Whatever merit the city’s assertions may have, our duty is to apply statutes as they are written. The city should address its proposed change in the law to the institution in this state charged with making public policy – the General Assembly. Id. at 930. Court Properly Barred Plaintiff’s Expert’s Testimony Because Backward Extrapolation Methodology is Not Generally Accepted in Scientific Community In Agnew v. Shaw, 823 N.E.2d 1046, 291 Ill. Dec. 460 (1st Dist. 2005), the plaintiff filed a medical malpractice action alleging a failure to timely diagnose occult breast cancer. The plaintiff filed suit against her internist, Dr. Charles Shaw; her radiologist, Dr. Henry Wiggins; and Dr. Wiggins’ corporation, Universal Radiology, Ltd. After a trial, the jury returned a verdict in favor of the defendants. At trial, the defendant, Dr. Shaw, testified that he had treated the plaintiff, Rita Agnew, on a regular basis since December 1990. Dr. Shaw treated the plaintiff for a variety of ailments, including thyroid problems, high blood pressure, diabetes, high cholesterol and other chronic health problems. Dr. Shaw ordered the plaintiff’s first mammogram in January of 1991, which was normal. Dr. Shaw testified that he typically relied on the radiological group to interpret the mammograms. The plaintiff underwent mammograms every six months from 1991 through April 1997. In April 1997, the plaintiff underwent a mammogram that revealed cancerous lymph nodes. A biopsy revealed that the plaintiff had a rare form of cancer known as occult primary breast cancer. Thereafter, the plaintiff underwent surgery to remove the cancerous lymph nodes. Plaintiff’s expert, Dr. Schapira, testified at his deposition that in his opinion, the plaintiff had cancer in her lymph nodes a year to a year and a half before it was detected on the mammogram in April 1997. In other words, Dr. Schapira believed (Continued on next page) 39 IDC Quarterly Evidence and Practice Tips (Continued) that the plaintiff had cancerous lymph nodes present when mammograms were taken in 1995 and 1996. Prior to going on the stand, Dr. Schapira was brought into the judge’s chambers and examined by counsel for the plaintiff and the defendants concerning his anticipated testimony on the linear progressive growth of lymph nodes. Dr. Schapira stated that because the plaintiff had nine cancerous lymph nodes in April 1997, he could “extrapolate backwards” and determine that the plaintiff had one cancerous lymph node in August of 1995 and two to three cancerous lymph nodes in February of 1996. Dr. Schapira testified in chambers that the basis of his opinions was his observation of patients and literature on the growth of breast cancer. However, he conceded that he could not identify a specific piece of scientific literature to support his opinion. He stated that the basis for his opinions was that the cancer “would not stand still for that period of time.” 823 N.E.2d at 1050. Dr. Schapira testified that there is a reasonable correlation between the size of the tumors and the changes in the size of the tumors over time and the amount of lymph node involvement. However, when concluding his testimony in chambers, Dr. Schapira admitted that there is no scientific literature to support his theory concerning the systematic sequence of spread of occult primary breast cancer. After Dr. Schapira completed his testimony in chambers, the trial judge did not rule on defendants’ Frye challenge. The trial judge then allowed Dr. Schapira to take the stand, without further objection from the defendants’ counsel. During Dr. Schapira’s testimony before the jury, plaintiff’s counsel elicited extrapolation opinions from him over the defendants’ objections. The parties then returned to chambers and plaintiff’s counsel objected to any further challenges to Dr. Schapira’s testimony, contending that the trial court should not conduct a Frye hearing on a “piecemeal” basis. The trial court overruled the plaintiff’s objection and explained that there were no objections when the matter was first raised and that all counsel were previously instructed that the court planned to conduct the Frye hearing during the progress of the trial. After the plaintiff rested her case, the Frye proceedings continued in chambers. Defendants’ proximate cause expert, Dr. Keith Micetich, testified in chambers that he had read Dr. Schapira’s deposition and that Dr. Schapira’s method of backward extrapolation is not generally accepted in the medical oncologic or scientific community. Dr. Micetich also testified that there was no literature, clinical studies, or research that looked backwards in a patient with occult breast cancer and calculated the number of cancerous lymph nodes at a given point in time. When Dr. Micetich concluded his testimony 40 in chambers, the court granted the defendants’ motion in limine. The trial court reasoned that the plaintiff had not met her burden of proving that Dr. Schapira’s methodology was generally accepted in the scientific community. The court determined that it is not the court’s role to decide whether a certain methodology is logical or not, but whether that methodology is generally accepted in the relevant scientific community, which in this case was the oncologic community. After the trial court issued its ruling, the plaintiff moved for a mistrial and again argued that the Frye hearing should not “Dr. Schapira stated that because the plaintiff had nine cancerous lymph nodes in April 1997, he could ‘extrapolate backwards’ and determine that the plaintiff had one cancerous lymph node in August of 1995 and two to three cancerous lymph nodes in February of 1996.” have been conducted in a piecemeal fashion. The court denied the plaintiff’s motion and again reminded plaintiff’s counsel that the court had advised the parties that it would conduct the Frye hearing in a piecemeal manner and that there was no objection from plaintiff’s counsel at that time. The trial judge then instructed the jury to disregard Dr. Schapira’s testimony that the plaintiff had cancerous lymph nodes as early as August 1995. On appeal, the plaintiff contended that Dr. Schapira’s extrapolation opinions should have been allowed under the Frye test and the Illinois Supreme Court’s ruling in Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 767 N.E.2d 314, 262 Ill. Dec. 854 (2002). The Agnew court recognized that Donaldson approved the extrapolation method utilized by the plaintiff’s expert in that case to link the cause of the Second Quarter 2005 plaintiff’s rare cancer to coal tar. However, the Agnew court distinguished the Donaldson decision because Dr. Schapira had conceded that he could not point to any scientific literature to support his extrapolation methodology. The Agnew court stated: elying on Donaldson, the plaintiff first assigns error to R the trial court’s order excluding the doctor’s backward extrapolation opinion by arguing that the trial court focused on Dr. Schapira’s conclusions rather than his methodology. We disagree. The trial record is clear that the trial court specifically addressed this issue in its ruling after the Frye hearing, when it stated that its ruling was not based upon whether it agreed with Dr. Schapira’s conclusions but that its ruling was based upon whether it agreed with Dr. Schapira’s methodology. The trial court also stated that based upon Dr. Schapira’s testimony and the testimony of Dr. Rossof and Dr. Micetich, the methodology of backward extrapolation in occult breast cancer patients was not generally accepted. In fact, in Donaldson, the court specifically noted that “all of plaintiffs’ experts testified that they utilized the method of extrapolation, and that the technique is generally accepted in their fields.” 199 Ill. 2d at 87-88, 262 Ill. Dec. 854, 767 N.E.2d 314. Conversely, here the plaintiff’s doctors did not testify that they utilized a backward extrapolation methodology or that Dr. Schapira’s method of backward extrapolation was generally accepted in the oncologist community. In fact, the testimony of Dr. Schapira, the plaintiff’s only causation expert, failed to establish that the methodology of backward extrapolation in occult breast cancer patients is generally accepted. We find, after reviewing this record, that backward extrapolation in occult breast cancer cases is a methodology which is only used by the plaintiff’s expert. Plaintiff’s insistence that this case falls within the purview of the rules delineated by the Donaldson court is misplaced. While the extrapolation methodology was approved when used to determine what caused the cancer in the Donaldson plaintiffs, that does not mandate that this court must find that the extrapolation methodology is acceptable in every case. See Kane v. Motorola, Inc., 335 Ill. App. 3d 214, 268 Ill. Dec. 688, 779 N.E.2d 302 (2002) (courts may reject an expert’s conclusions when his extrapolation methodologies are unsound or when the scientific data upon which they rely is not related to the conclusion reached). Dr. Schapira admits that his methods are not only new, but that there is no support in the literature or from any other oncologists regarding this methodology. Therefore, applying Donaldson and Frye to the facts in this case, we cannot conclude that the trial court abused its discretion when it determined that Dr. Schapira’s backward extrapolation methodology was not generally accepted in the scientific community. Donaldson, 199 Ill. 2d at 77, 262 Ill. Dec. 854, 767 N.E. 2d 314; Frye, 293 F at 1014. Agnew, 823 N.E.2d at 1053-54. The Agnew court also rejected the plaintiff’s argument that the defendants’ Frye challenge was untimely because it was raised in a motion in limine, just prior to trial. The plaintiff contended that the defendants’ Frye objection was tardy because it was tantamount to a dispositive motion. The First District Appellate Court disagreed stating: In this case, both parties presented pretrial motions, including motions in limine, before the trial and each side had an opportunity to raise objections during a pretrial hearing. In addition, the trial court did not convert the defendants’ motion in limine into a motion for summary judgment, did not bar all the plaintiff’s expert’s opinion testimony or enter a judgment for the defendants . . . Here, the trial court only barred that portion of the plaintiff’s expert’s testimony regarding backward extrapolation. *** . . . with regards to the Frye objections being presented in a motion in limine, we find that this practice has not been held improper by this court. See Petre, 331 Ill. App. 3d at 945, 265 Ill. Dec. 125, 771 N.E.2d 1084 (Frye evidentiary hearing conducted where motion in limine brought); People v. Taylor, 335 Ill. App. 3d 965, 967, 270 Ill. Dec. 361, 782 N.E.2d 920 (2002) (Frye motion presented as motion in limine). We agree with the courts in Petre and Taylor that Frye objections are properly raised in motions in limine. . . . Therefore, we find that the trial court did not abuse its discretion or deny the plaintiff a fair trial when it permitted the defendants to raise a Frye objection in a motion in limine, or when it struck the plaintiff’s expert’s backward extrapolation testimony. Id. at 1055. (Continued on next page) 41 IDC Quarterly Evidence and Practice Tips (Continued) Trial Court Should Have Barred Opinion Testimony of Neurosurgeon Due to Defense Counsel’s Petrillo Violation In Moss v. Amira, Nos. 1-03-2766, 1-03-2805, 2005 WL 678465 (1st Dist. March 24, 2005), the plaintiff, Richard Moss, alleged that he was injured when his car was rearended by the defendant, Jennifer Amira’s vehicle. Thereafter, the plaintiff was treated by several doctors for a neck injury, including neurosurgeon Dr. Richard Moser. On February 12, 2002, the defendant’s attorney took the discovery deposition of Dr. Moser. The defendant then served the plaintiff with Answers to Illinois Supreme Court Rule 213 Interrogatories. The Answers to Rule 213 Interrogatories included a detailed summary of several treating doctors’ opinions, including Dr. Moser’s opinions. Dr. Moser had testified at his deposition that the plaintiff had significant pre-existing arthritis in his neck and that he could not render an opinion on whether the plaintiff needed surgery or would need surgery in the future. Thereafter, defense counsel arranged the evidence deposition of Dr. Moser. In advance of the evidence deposition, defense counsel sent Dr. Moser a notice of his evidence deposition, a copy of Dr. Moser’s discovery deposition transcript, and the defendant’s Answers to Rule 213 Interrogatories. Defense counsel sent these documents to Dr. Moser along with a cover letter that stated: My firm represents the Defendant in the abovecaptioned lawsuit. Please find enclosed a Notice of Evidence Deposition for May 12, 2003. For your convenience, I am enclosing a copy of your discovery deposition transcript and Defendant’s Answers to 213 Interrogatories wherein I disclose your expected opinions in this matter. The check for your evidence deposition will be forwarded under separate cover. 2005 WL 678465 at *2. Defense counsel also sent a copy of his letter to plaintiff’s counsel. Prior to trial, the plaintiff filed a motion in limine to bar Dr. Moser’s testimony, contending that defense counsel’s letter to Dr. Moser constituted a Petrillo violation. (Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 499 N.E.2d 952, 102 Ill. Dec. 172 (1st Dist. 1986)). The trial court denied the motion, finding that defense counsel’s actions did not rise to 42 the level of a Petrillo violation. The defendant admitted liability so the only issue at trial was the extent of the plaintiff’s damages. At the conclusion of the trial, the jury returned a verdict in favor of the plaintiff in the amount of $12,929.50. Moss filed a post-trial motion to set aside the jury’s verdict as to damages and requested that the court order a new trial on damages only. Moss argued that the trial court erred when it refused to bar Dr. Moser’s testimony based on defense counsel’s Petrillo violation. The trial court denied the plaintiff’s post-trial motion and the plaintiff appealed. On appeal, the plaintiff argued that defense counsel’s letter to Dr. Moser was not a mere de minimis contact, solely for the purpose of scheduling an evidence deposition. Rather, the plaintiff argued that defense counsel’s letter attempted to influence Dr. Moser’s evidence deposition testimony by suggesting that Dr. Moser review his discovery deposition and the defendant’s Answers to Rule 213 Interrogatories. The First District Appellate Court agreed and reversed the trial court. The Moss court stated: . . . [T]his was not a de minimis communication regarding incidental matters preliminary to a deposition, such as scheduling. Here, the communication that occurred between defense counsel and Dr. Moser could be interpreted as an attempt on the part of defense counsel to attempt to alert Dr. Moser as to what his future testimony should be. This is clearly improper. *** Under Petrillo, defense counsel may communicate with a plaintiff’s treating physician only by means of formal discovery as outlined in Supreme Court Rule 201. (Citation omitted). Defense counsel does not have the right, as Amira suggests, to “prepare” plaintiff’s treating physician for a deposition. This is clearly improper. Id. at *7. The Moss court ordered that the trial court sanction the defendant by barring all of Dr. Moser’s testimony on retrial. Second Quarter 2005 Featured Article Appellate Court of Illinois Affirms Application of Actual Innocence Rule in Legal Malpractice Action Arising from Underlying Criminal Plea Agreement By: John D. LaBarbera O’Hagan, Smith & Amundsen, L.L.C. Chicago The Appellate Court of Illinois recently affirmed the application of the actual innocence rule in a legal malpractice action alleging professional negligence arising from legal advice provided to a criminal defendant accepting a plea agreement. Paulsen v. Cochran, No. 1-04-1325, 2005 Ill. App. LEXIS 226, 2005 WL 589308 (1st Dist. March 14, 2005). In that case, Paulsen, a Chicago resident, was arrested and charged in Arizona in May 2002 with conspiracy to transport marijuana, a Class 2 felony. Paulsen sought representation through the Chicago law office of the Cochran firm. The Cochran firm referred Paulsen to an attorney outside the firm, whom Paulsen claims subcontracted the defense to a Missouri lawyer. Paulsen entered into the plea agreement dated August 30, 2002, in which he agreed to plead guilty under various sections of the Arizona Criminal Code. He signed the agreement and initialed the numbered paragraphs. The paragraphs he initialed included statements that Paulsen had discussed the case and his rights with his lawyer and that he signed the agreement voluntarily. The plaintiff was thereafter sentenced to one year in jail, 850 hours of community service and $88,500 of fines and surcharges. He subsequently filed a petition for postconviction relief seeking to reduce the amount in fines and surcharges. The prosecutor’s office conceded that the fine in the plea agreement was miscalculated, resulting in a reduction of $38,500 and leaving him with a fine of $50,000. Paulsen subsequently filed a malpractice action against the defendant attorneys, alleging that the attorneys erred in providing legal services: (1) by failing to contest the forfeiture of certain money and personal property; (2) including an improper fine in the plea agreement as shown by the fact that the court reduced the fine; and (3) that with proper representation, he would have received only probation. The trial court dismissed the plaintiff’s complaint applying the actual innocence rule. In short, the trial court ruled that because the plaintiff could not and did not plead his innocence of his crimes, the plaintiff was barred from pursuing his legal malpractice claim. On appeal, the plaintiff argued that he should be compensated by the defendants because the plea agreement caused him to overpay his debt to society and receive an excessively harsh sentence. The plaintiff further contended that neither Illinois law nor public policy required proof of a criminal defendant’s actual innocence to state a cause of action for legal malpractice where, as here, the malpractice was grounded on a claim other than a wrongful conviction. The court rejected the plaintiff’s argument, holding that the trial court properly applied the actual innocence rule in dismissing the case. The court noted that under Illinois law, a showing of actual innocence is required for a plaintiff to state a cause of action for malpractice against his former criminal defense attorney. The court further noted that Illinois courts thus far recognize a single exception to the application of the actual innocence rule. That exception applies where the criminal defense attorney breaches his fiduciary duties by intentionally undermining his own client. This intentional breach of fiduciary duty is described by the Illinois courts as a betrayal. The court, in analyzing the question presented by the plaintiff in opposition to the application of the rule noted that the plaintiff’s claim was not for the type of betrayal required to trigger the exception. (Continued on next page) About the Author John D. LaBarbera is an associate with O’Hagan, Smith & Amundsen, L.L.C. His practice includes the defense of professionals, including attorneys, accountants and insurance brokers. He received his J.D. from the Illinois Institute of Technology, Chicago-Kent College of Law in 2001. 43 IDC Quarterly Innocence Rule (Continued) Finally, the court noted that although plea agreements exist in the criminal justice structure, they are governed to some extent by contract law principles. An attempt by a criminal defendant to unilaterally modify the provisions in a plea agreement to which he agreed “flies in the face of contract law principles.” 2005 WL 589308 at *8 (quoting People v. Evans, 174 Ill. 2d 320, 327, 673 N.E.2d 244, 220 Ill. Dec. 332 (1996)). In fact, by signing the plea agreement and accepting the terms of the agreement, Paulsen admitted that the substantive terms of the plea agreement were all he was entitled to expect from the government. Following the reasoning of the majority of jurisdictions, the court found that the cause of the plaintiff’s loss of property was his intentional criminal conduct, not the negligence of his defense attorney. ADDRESSES CHANGE . . . ADDRESS changes PEOPLE MOVE 44 and of course we continue to have new members. We can all help to conserve dollars if we remember to Technology Law By: Michael C. Bruck Crisham & Kubes, Ltd. Chicago “May” is Sounding More Like “Shall” When Awarding Fees in Certain Copyright Cases Historically, copyright litigation has proved to be expensive and time-consuming. In addition, until recently, the ability of a prevailing party to recover its fees had been, at best, uncertain. Therefore, many plaintiffs with valid, low-value infringement claims were unwilling or financially unable to litigate their claims. Similarly, many defendants settled frivolous claims for nuisance value to avoid the cost of litigation. In either event, it is arguable that the Copyright Act (17 U.S.C. § 501 et seq.) was not serving its purpose by protecting the rights of property owners and preventing unwarranted claims. The Seventh Circuit’s recent decisions in Woodhaven Homes & Realty, Inc. v. Hotz, 396 F.3d 822 (7th Cir. 2005) and Assessment Technologies of WI, LLC v. WIREdata, Inc., 361 F.3d 434 (7th Cir. 2004), have changed the landscape and given incentive for the full adjudication of copyright claims by suggesting that courts, in exercising their discretion to enter a fee award, should apply a presumption in favor of awarding attorney’s fees in certain cases. Specifically, fees to a prevailing party are now presumed in cases where the advise of an address change. Call (1-800-232-0169) or Fax (217-636-8812) the IDC Office with your mailing address or phone number changes. About the Author Michael C. Bruck is a partner in the Chicago law firm of Crusham & Kubes, Ltd. He is a trial lawyer focusing on the defense of professionals in malpractice actions, commercial cases and intellectual property litigation. Mr. Bruck received his B.S. from Purdue University in 1984 and his J.D. from DePaul College of Law in 1988. He is a member of DRI, IDC, ISBA, CBA and The Illinois Society of Trial Lawyers. Second Quarter 2005 monetary stakes are small and are strongly presumed for all prevailing defendants regardless of the monetary value of the dispute. Woodhaven Homes, 396 F.3d at 824; Assessment Technologies, 361 F.3d at 437. These decisions represent a significant change for plaintiffs considering whether or not to bring a small-dollar copyright claim, as most are, and for defendants considering whether to defend or settle a copyright claim. However, while this approach is likely sound economic policy, it is unclear whether this “uneven” interpretation would be affirmed if reviewed by the Supreme Court. The Copyright Act of 1976 (the “Act”), 17 U.S.C. § 501 et seq., provides for a discretionary award of fees to the prevailing party. 17 U.S.C. § 505. Specifically, it provides in pertinent part that in any copyright infringement action: “The court may . . . award a reasonable attorney’s fee to the prevailing party as part of the costs.” In early rulings on the act’s fee-shifting structure, certain circuits applied an uneven “dual” standard under which prevailing plaintiffs were generally awarded attorney’s fees as a matter of course and prevailing defendants had to show that the original suit was frivolous or brought in bad faith in order to recover fees. See, McCulloch v. Albert E. Price, Inc., 823 F.2d 316, 323 (9th Cir. 1987). Other circuits applied an “evenhanded” approach where no distinction was made between prevailing plaintiffs and prevailing defendants. See, Lieb v. Topstone Industries, Inc., 788 F.2d 151, 156 (3rd Cir. 1986). The U.S. Supreme Court resolved this split in the circuits over the treatment of fee claims in Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), a case involving John Fogerty’s successful defense of a claim that his song, “Old Man Down the Road” was merely a copy of “Run Through the Jungle” with new words. In Fogerty v. Fantasy, Inc., the court noted: [D]efendants who seek to advance a variety of meritorious copyright defenses should be encouraged to litigate them to the same extent that plaintiffs are encouraged to litigate meritorious claims of infringement. In the case before us, the successful defense of “The Old Man Down the Road” increased public exposure to a musical work that could, as a result, lead to further creative pieces. Thus a successful defense of a copyright infringement action may further the policies of the Copyright Act every bit as much as a successful prosecution of an infringement claim by the holder of a copyright. Id. at 527. Accordingly, in Fogerty v. Fantasy, Inc., the court held that prevailing plaintiffs and prevailing defendants are to be treated alike and that attorney’s fees are to be awarded to prevailing parties only as a matter of the court’s discretion. Id. at 534. The court further noted that there is no precise rule or formula for making these determinations, but gave a nonexclusive list of factors for a court to consider in its equitable discretion. Id. at 535. These factors included “frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.” Id. (quoting Lieb v. Topstone Industries, Inc., 788 F.2d 151, 156 (1986)). In recent decisions, the Seventh Circuit has endeavored to simplify this nonexclusive list. See, Gonzales v. Transfer Technologies, Inc., 301 F. 3d 608, 609 (7th Cir. 2002); Assessment Technologies of WI, LLC v. WIREdata, Inc., 361 F. 3d 434 (7th Cir. 2004). The Seventh Circuit’s latest pronouncements are particularly important to litigants involved in a copyright claim. In Assessment Technologies, the court found that the two most important considerations in determining whether to award attorney’s fees in a copyright case are “the strength of the prevailing party’s case and the amount of damages or other relief the party obtained.” 361 F. 3d at 436. To demonstrate its reasoning, the court first analyzed cases on divergent ends of the spectrum. Specifically, the court noted that in a close case where the plaintiff obtained generous damages or injunctive relief of substantial monetary value, there was no urgent need to add an award of attorney’s fees. Id. at 437. Conversely, if the claim or defense was frivolous and the prevailing party obtained no relief at all, the case for awarding attorney’s fees was compelling. Id. In simplifying the list of Fogerty factors, the court next addressed the situation in which the prevailing plaintiff obtained only a small award of damages. Id. It had noted a prior case, “the smaller the damages, provided there is a real, and especially a willful, infringement, the stronger the case for an award of attorney’s fees . . . [W]e go so far as to suggest, by way of refinement of the Fogerty standard, that the prevailing party in a copyright case in which the monetary stakes are small should have a presumptive entitlement to an award of attorney’s fees.” Id. at 437 (quoting Gonzales, 301 F.3d 608, 610 (7th Cir. 2002). To further simplify the list of Fogerty factors, the Seventh Circuit also addressed the case of prevailing defendants. It held that “when the prevailing party is the defendant, who by definition receives not a small award but no award, the presumption in favor of awarding attorney’s fees is very strong [citation omitted]. For without the prospect of such an (Continued on next page) 45 IDC Quarterly Technology Law (Continued) award, the party might be forced into a nuisance settlement or deterred altogether from exercising his rights.” Id. at 437. Simply, “[t]he point is only that when a meritorious claim or defense is not lucrative, an award of attorneys’ fees may be necessary to enable the party possessing the meritorious claim or defense to press it to a successful conclusion rather than surrender it because the cost of vindication exceeds the private benefit to the party.” Id. The Seventh Circuit recently revisited this issue and reaffirmed its position in Woodhaven Homes & Realty, Inc. v. Hotz, 396 F. 3d 822 (7th Cir. 2005). In Woodhaven Homes, the Hotzes paid Woodhaven $1,500 for customized blueprints for the construction of a home. 396 F.3d at 823. The Hotzes took the plans to another builder, Robbins, to have the home constructed. Id. at 824. Woodhaven sued, claiming copyright infringement. Id. The district court granted the Hotzes’ summary judgment on the copyright claim, but denied them an award of attorney’s fees under the act. Id. On review, the 7th Circuit reversed the denial of attorney’s fees and remanded the case to the district court to award “reasonable fees” in favor of the Hotzes. Id. In reaching its conclusion in Woodhaven Homes, the Seventh Circuit noted the Fogerty factors and its ruling in Assessment Technologies where “we held that prevailing defendants in copyright cases, like Robbins, are presumptively entitled (and strongly so) to recover attorney fees.” Woodhaven Homes, 396 F.3d at 824. The court further noted that “[i]n this case, like Assessment Technologies, awarding attorney fees is appropriate because Robbins ‘could not obtain an award of damages from which to pay his lawyer no matter how costly it was for [it] to defend against the suit.’” Id. (quoting Assessment Technologies, 361 F.3d at 437). Accordingly, defendants such as Robbins in Woodhaven Homes, and their insurers, no longer must face the Hobson’s choice of paying to exercise their rights with little hope of recovering fees if successful, or paying a nuisance settlement to limit the exposure. In simplifying and refining the Fogerty factors, the Seventh Circuit has added a degree of certainty to the prospect of a fee award. This added certainty regarding the awarding of fees likely will have the dual effect of both discouraging the filing of frivolous claims and encouraging the quick resolution of meritorious claims. Plaintiffs will be more selective about the infringement claims they bring because, if unsuccessful, they likely will be responsible for defendant’s attorney’s fees. Additionally, defendants will be more reluctant to offer nuisance settlements to avoid the cost of litigation on frivolous claims because they likely will be reimbursed for their attorney’s fees. Further, pending small-value claims may be resolved 46 more quickly. With a presumption that prevailing plaintiffs are entitled to attorney’s fees, defendants may be more willing to settle legitimate claims quickly, thus avoiding the extra expense of plaintiff’s attorney’s fees. The Seventh Circuit’s new interpretation appears to create a win-win situation, by encouraging the filing and quick resolution of meritorious copyright infringement claims while simultaneously discouraging frivolous claims and defenses. However, this new interpretation could be short-lived. In Fogerty, the Supreme Court explicitly rejected an interpretation of 17 U.S.C. § 505 that created an uneven standard. Specifically, it rejected a standard that encouraged the award “Simply, ‘[t]he point is only that when a meritorious claim or defense is not lucrative, an award of attorneys’ fees may be necessary to enable the party possessing the meritorious claim or defense to press it to a successful conclusion rather than surrender it because the cost of vindication exceeds the private benefit to the party.’ ” of attorney’s fees to prevailing plaintiffs while it discouraged fees for prevailing defendants. The Seventh Circuit’s interpretation discourages fees for prevailing plaintiffs in big money cases and favors prevailing defendants over prevailing small-value plaintiffs. Although the reasoning behind the Seventh Circuit’s uneven interpretation is far more persuasive and makes more economic sense than past interpretations, Second Quarter 2005 this standard still disproportionately favors one party and it is unclear whether, in light of Fogerty, the Supreme Court would affirm this interpretation if reviewed. In conclusion, fee awards in copyright cases historically have tended to be reserved for prevailing plaintiffs as a matter of course and prevailing defendants only where plaintiff’s claims were frivolous or in bad faith. The Fogerty court leveled the playing field for plaintiffs and defendants, explicitly rejecting uneven standards. Now, recent Seventh Circuit decisions encourage adjudication of meritorious claims and defenses with a presumption in favor of awarding fees to prevailing plaintiffs in small stakes cases, and a very strong presumption in favor of awarding fees to prevailing defendants. The likely result of this simplification in the interpretation of the fee-shifting provision of the Copyright Act is greater clarity of intellectual property rights by encouraging the adjudication of meritorious claims and defenses as opposed to forgoing claims or succumbing to nuisance settlements. However, because of the apparent uneven standard, this interpretation could be finite if reviewed by the U.S. Supreme Court. YOU Do know what you’re missing ? You could be missing out on an opportunity to meet and work with the defense bar throughout the State of Illinois. Get involved with one of our numerous committees. Illinois Association of Defense Trial Counsel 800-232-0169 FAX 217-636-8812 www.iadtc.org 47 IDC Quarterly Recent Decisions By: Stacy Dolan Fulco Cremer, Kopon, Shaughnessy & Spina, LLC Chicago Allocation of Fault Under Section 2-1117 and Inclusion of Settling Parties on Verdict Form Skaggs v. Senior Services of Central Illinois, Inc., 2005 WL 245758 (4th Dist., January 27, 2005). The plaintiff, Anna Skaggs, hired defendant, Help at Home, to take her to vote at a building occupied by defendant, Senior Services. Help at Home’s employee drove the plaintiff to the building and parked the van near a depression in the parking lot. When the plaintiff finished voting and attempted to get back into the van, she fell and broke both of her ankles. The plaintiff sued Senior Services and Help at Home for negligence. Before the plaintiff’s complaint was filed, Help at Home filed a petition for bankruptcy. The bankruptcy court later granted Senior Services’ petition for contribution against Help at Home. In the circuit court, Senior Services also filed a counterclaim for contribution against Help at Home. The plaintiff and Help at Home later negotiated a settlement, which provided that any money actually received by the plaintiff would be allowed as a credit against liability that might be imposed upon Senior Services. A motion was then filed requesting the circuit court find the proposed settlement to be in good faith in accordance with the Contribution Act (740 ILCS 100/0.01 through 5) and bar any claim for contribution or any other claim against Help at Home. Over Senior Services’ objection, the circuit court found the settlement to be in good faith. Senior Services appealed the ruling. After analyzing the Contribution Act, the appellate court stated that the real issue in this case is the possibility that by their settlement, Help at Home and the plaintiff destroyed Senior Services’ right to have the trier of fact consider Help at Home’s percentage of fault when determining Senior Services’ liability under Section 2-1117 of the Code of Civil 48 Procedure. (735 ILCS 5/1-1117). Section 2-1117 provides that in cases such as these: “all defendants found liable are jointly and severally liable for the plaintiff’s past and future medical and medically related expenses. Any defendant whose fault, as determined by the trier of fact, is less than 25% of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third-party defendant except the plaintiff’s employer, shall be severally liable for all other damages.” (735 ILCS 5/1-1117); Skaggs, 2005 WL 245758 at *5. The appellate court indicated that under the current language, there are two possible interpretations of Section 2-1117. The first interpretation is that Section 2-1117 does not allow for a settling defendant dismissed from the case to be considered in apportioning liability. A trial court may consider the settling defendant as no longer a “defendant sued by the plaintiff.” A second interpretation may be that the settling defendant had actually been sued, and the fact that the defendant settled does not prevent inclusion for purposes of Section 2-1117. Skaggs, 2005 WL 245758 at *5. The appellate court went on to say that if a settling defendant may not be included under Section 2-1117, a plaintiff could sue two defendants, one who is primarily at fault but indigent and one who is minimally at fault but wealthy. By settling with the indigent defendant, the plaintiff could circumvent the application of Section 2-1117, leaving the wealthy defendant, even though minimally liable, jointly liable for all damages because the settling defendant’s portion of fault can no longer be considered. Such an arrangement would constitute bad faith and collusion as the parties to the settlement would be acting to deprive the non-settling party of its statutory right to several liability for non-medical expenses. However, if the non-settling defendant is more than 25% at fault, there would be no problem with an otherwise “goodfaith” settlement. Id. About the Author Stacy Dolan Fulco is an associate at the Chicago law firm of Cremer, Kopon, Shaughnessy & Spina, LLC. She practices primarily in the areas of premises liability, products liability and wrongful death defense. Ms. Fulco received her undergraduate degree from Illinois State University and her J.D./M.B.A. degree from DePaul University. She is a member of the IDC. Second Quarter 2005 Considering these issues, the appellate court determined that it would be premature to approve the settlement without an interpretation of Section 2-1117, because it is not clear whether Senior Services is more than 25% at fault. If Senior Services is more than 25% at fault, then the settlement would appear to be in “good faith” regardless of the court’s interpretation of Section 2-1117 as the plaintiff and Help at Home would not be destroying Senior Services’ rights under Section 2-1117. However, if Senior Services is less than 25% at fault, Senior Services’ rights under Section 2-1117 would be jeopardized if there was a chance Help at Home’s percentage of fault might not be considered for determining Section 2-1117 liability. Id. at *6. In making its decision, the appellate court looked to the Supreme Court of Illinois’ recognition, prior to the latest revision, that “the clear legislative intent behind Section 2-1117 is that minimally responsible defendants should not have to pay entire damage awards.” See, Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d 64, 783 N.E.2d 1024 (2002). The revision to Section 2-1117 prevents a plaintiff’s employer from being considered in the apportioning of fault, but the legislative intent remains the same with respect to minimally responsible defendants. The appellate court believed that forcing a minimally responsible defendant to shoulder the non-medical expenses only because the more culpable defendant settled would allow plaintiffs to circumvent the purpose of the statute. Skaggs, 2005 WL 245758 at *6. Based on this analysis, the appellate court determined that only by interpreting Section 2-1117 to include settling defendants can Section 2-1117 reinforce the policies of the Contribution Act. Including settling defendants in apportioning liability does not discourage settlements, but it certainly better promotes equitable apportionment of damages according to relative fault. The plain language of the statute includes “defendants sued by the plaintiff.” 735 ICLS 5/2-1117. Even though a defendant settles with a plaintiff and is dismissed from the case, that defendant does not lose its status as a defendant sued by the plaintiff. Therefore, the appellate court held that Section 2-1117 requires the trier of fact to consider the percentage of fault of settling defendants. In this case, because Section 2-1117 allowed the trier of fact to consider Help at Home’s percentage of fault, the appellate court ruled that the trial court did not abuse its discretion in finding a good-faith settlement. Id. Effect of Failure to Comply with Rule 237 Production Request at Arbitration Hearing Government Employees Insurance Co. v. Smith, 2005 WL 292233 (1st Dist., January 11, 2005). The plaintiff, Geico, filed a subrogation action against the defendant, David Smith, for property damage related to a traffic accident with Rosalyn Walton, a Geico insured. During the discovery phase of the case, the defendant served two Rule 237 production requests on Geico. The first request demanded that Geico produce the claim adjuster at arbitration. The second request demanded that Geico produce the claim adjuster and John Ciullo, Geico estimator, at arbitration. The mandatory arbitration hearing took place and Geico did not produce anyone at the hearing. The arbitrators unanimously ruled in favor of Geico but indicated in the award that Geico had acted in bad faith at the hearing for failing to produce a Rule 237 witness that the defendant requested be produced. Geico and the defendant rejected the arbitration award. The defendant then filed a motion to bar Geico from producing evidence at trial on the grounds that Geico failed to produce its employee to testify at the arbitration hearing pursuant to the Rule 237 notice to produce and because the arbitrators found Geico to have participated in bad faith at the arbitration hearing. Geico responded that it was not under a duty to produce Ciullo pursuant to the Rule 237 notice because Ciullo was not an employee of Geico, but rather, was an employee of the repair shop. The trial judge granted the defendant’s motion to bar Geico from presenting evidence at trial. The defendant then filed a motion for summary judgment, which was granted, and Geico appealed. The issue on appeal was whether the trial court’s sanction, which barred Geico from presenting evidence at trial due to Geico’s failure to comply with Rule 237, was an abuse of discretion, where the defendant requested that Geico produce its “claims adjuster” and Geico failed to do so. The granting of the summary judgment motion was also an issue on appeal. The appellate court determined that the sanction imposed by the trial court was pursuant to Rule 237. Government Employees Insurance Co., 2005 WL 292233 at *5. Illinois Supreme Court Rule 237(b) states in pertinent part: “The appearance at the trial of a party or a person who at the time of trial is an officer, director, or employee of a party may be required by serving the party with a notice designating the person who is required to appear. Upon a failure to comply (Continued on next page) 49 IDC Quarterly Recent Decisions (Continued) with the notice, the court may enter any order that is just, including any order provided for in Rule 219(c) that may be appropriate.” Illinois Supreme Court Rule 90(g) provides that Rule 237 is equally applicable to arbitration hearings and trials. See, Government Employees Insurance v. Campbell, 335 Ill. App. 3d 930, 933, 781 N.E.2d 639 (1st Dist. 2002). Illinois Supreme Court Rule 91(b) provides that parties to an arbitration must participate in the proceedings in good faith and in a meaningful manner. See, State Farm Mutual Insurance Co. v. Santiago, 344 Ill. App. 3d 1010, 1013, 801 N.E.2d 142 (1st Dist. 2003). Finally, Illinois Supreme Court Rule 219(c) states that failure to comply with a Rule 237(b) notice may include an order barring the offending party from presenting any evidence or witnesses. See, Santiago, 344 Ill. App. 3d at 1013. The appellate court noted that sanctions for failing to comply with a Rule 237 notice are to be imposed when failure to comply is determined to be unreasonable. A circuit court’s decision barring a party from presenting evidence at trial and imposing sanctions is subject to an abuse of discretion standard of review and an abuse of discretion occurs when the court’s ruling is arbitrary or exceeds the bounds of reason. Government Employees Insurance Co., 2005 WL 292233 at *6; citing Santiago, 344 Ill. App. 3d at 1013, and Campbell, 335 Ill. App. 3d at 933. In this case, the defendant’s Rule 237 supplemental notice to produce requested that Geico produce two individuals, Geico’s claims adjuster and Ciullo. Geico failed to produce either individual and failed to specifically notify the defendant that Ciullo was not an employee of Geico. The arbitrators found Geico to be acting in bad faith because of the absence of Ciullo but the appellate court indicated that since Cuillo was not an employee of Geico, that was not a proper basis for a bad faith finding. However, Geico’s failure to produce the Geico claims adjuster at the hearing was in violation of Rule 237, even if the arbitrators did not make that explicit finding. Once the defendant made the motion to bar all evidence from Geico, the burden was placed on Geico to demonstrate why its noncompliance with the defendant’s Rule 237 notice to produce was “reasonable or the result of extenuating circumstances.” Campbell, 335 Ill. App. 3d at 933. The appellate court noted that Geico produced no evidence with regard to its noncompliance in producing the claims adjuster either before the trial court or the appellate court. Government Employees Insurance Co., 2005 WL 292233 at *7-8. The appellate court ruled that Geico had an obligation to produce the claim’s adjuster at the arbitration hearing pursuant to the Rule 237 notice to produce by the defendant. Therefore, 50 there was no abuse of discretion in the trial court’s order barring Geico from presenting testimony or evidence at trial. In addition, there was no error in the trial court’s granting of summary judgment in favor of the defendant. The trial court’s rulings were affirmed. Id. at *8. Summary Judgment Appropriate Where Proximate Cause is Based on Speculation Mann v. Producer’s Chemical Company, 2005 WL 396584 (1st Dist., February 15, 2005). The decedent, Brooks Mann, was killed when he was hit by a car while crossing a street. The decedent and another high school student, Audrey Fox, were walking home from school when Fox crossed Route 59 and stopped to sit on a wall on the other side of the street. Fox then saw the decedent cross Route 59 in front of a stopped truck. As soon as the decedent stepped past the truck, a speeding vehicle driven by defendant, Romaus Mesa, which drove around the stopped truck through a yellow-marked no-drive zone, struck and killed him. The decedent’s estate sued Mesa, the truck driver (Bartow) and the owner of the truck (PCC). Fox testified that while the decedent was crossing in front of the truck, Bartow waved him across. Bartow testified that the decedent started running across the street when he noticed the arrow turn green. Bartow also stated that he never made eye contact with the decedent and never waived him across but he did reach for his air horn cord over his left shoulder when he saw the decedent was about to be hit by Mesa’s vehicle. No other witnesses to the accident testified that they saw the truck driver wave to the decedent other than Fox. Mann, 2005 WL 396584 at *1-2. After all of the witnesses to the accident were deposed, PPC and Bartow filed a motion for summary judgment. The trial court granted the motion based on the pleadings and depositions and found that the plaintiff could not prove proximate cause because the decedent continued to cross the street without doing anything different from what he had been doing before he supposedly saw Bartow wave at him. The trial court also found that it would be pure speculation to find that the decedent was looking at Bartow and that he relied on Bartow’s gesture. Since case law states that speculation is not enough, the trial court granted the motion for summary judgment. The plaintiff appealed the ruling. Id. at *2. The plaintiff argued that the trial court erred in entering summary judgment in favor of PCC and Bartow because the trial court improperly resolved, as a matter of law, the “factual” Second Quarter 2005 question of whether the decedent relied on Bartow’s signal in crossing the street. PCC and Bartow responded that summary judgment was appropriate because: (1) Bartow owed no duty of care to the decedent; (2) the plaintiff failed to create a genuine issue of material fact as to whether Bartow breached a duty of care; and (3) the plaintiff failed, as a matter of law, to prove the alleged negligence of Bartow was a proximate cause of the accident. Id. at *3. The appellate court noted that in a negligence action, the plaintiff is required to prove: (1) the defendant owed a duty “Cause in fact exists where there is a reasonable certainty that a defendant’s acts caused the injury or damage. A defendant’s conduct is a cause in fact of the plaintiff’s injury only if that conduct is a material element and a substantial factor in bringing about the injury.” of reasonable care to the plaintiff; (2) the defendant breached that duty; and (3) the breach was the proximate cause of the plaintiff’s injury. Wiegman v. Hitch-Inn Post of Libertyville, Inc., 308 Ill. App. 3d 789, 795, 721 N.E.2d 614 (2nd Dist. 1999). The issue of proximate cause is usually a question of fact for a jury. Wojtowicz v. Cervantes, 284 Ill. App. 3d 524, 531, 672 N.E.2d 357 (1st Dist. 1996). However, a plaintiff must demonstrate proximate cause. Otherwise, he has failed to establish a prima facie case and a directed verdict is proper. And, where the pleadings, depositions, and other evidence before the court show that at trial a verdict would have to be directed, entry of summary judgment is proper. Mann, 2005 WL 396584 at *3, citing Kennedy v. Joseph T. Ryerson & Sons, Inc., 182 Ill. App. 3d 914, 918, 538 N.E.2d 748 (1st Dist. 1989). Proximate cause has two components: cause in fact (a matter of reasonable certainty) and legal cause (a question of foreseeability). First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 257-58, 720 N.E.2d 1068 (1999). Cause in fact exists where there is a reasonable certainty that a defendant’s acts caused the injury or damage. A defendant’s conduct is a cause in fact of the plaintiff’s injury only if that conduct is a material element and a substantial factor in bringing about the injury. A defendant’s conduct is a material element and a substantial factor in bringing about an injury if, absent that conduct, the injury would not have occurred. Mann, 2005 WL 396584 at *3, citing First Springfield, 188 Ill. 2d at 258. In this case, the plaintiff relies on Section 324A of the Restatement (Second) of Torts, which states: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if: (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” Restatement (Second) of Torts, Sect. 324A (1965). The appellate court indicated that under a voluntary undertaking theory, to establish proximate cause of the injury, the cause-in-fact component requires a showing that a plaintiff relied on the defendant’s conduct. Restatement (Second) of Torts, Sect. 324A (1965). As applied to this case, Section 324A(c) required the plaintiff to show the decedent relied on Bartow’s wave in continuing to cross the street without checking for other traffic at the point he was struck by Mesa’s vehicle. The court stated that the showing of reliance by the decedent is necessary to establish that Bartow’s act of waving the decedent through the intersection “is a material element and a substantial factor in bringing about an injury if, absent that conduct, the injury would not have occurred.” Mann, 2005 WL 396584 at *4, citing First Springfield, 188 Ill. 2d at 258. The trial court found the plaintiff’s evidence to be mere speculation. The appellate court advised that it is well settled that liability cannot be predicated upon surmise or conjecture (Continued on next page) 51 IDC Quarterly Recent Decisions (Continued) as to the cause of an injury, but liability can be established where there is a reasonable certainty that the defendant’s actions caused the injury. Wiegman, 308 Ill. App. 3d at 795; Wojtowicz, 284 Ill. App. 3d at 531. While this can be established from circumstantial evidence, a fact is not “established by circumstantial evidence unless the circumstances are of such a nature and so related to each other that it is the only probable, not merely possible, conclusion that can be drawn therefrom.” Mann, 2005 WL 396584 at *5, citing Wiegman, 308 Ill. App. 3d at 796. Based on the case law, the appellate court determined that if the existence or nonexistence of reliance by the decedent on Bartow’s wave were equally probable, then the plaintiff is unable to establish that there is a “reasonable certainty that the defendant’s acts caused the injury” and, therefore, failed to establish proximate cause. Wiegman, 308 Ill. App. 3d at 795. There was no direct evidence on the question of reliance because the decedent never regained consciousness after the accident. As for circumstantial evidence, the only witness who testified that Barstow waived was Fox and she admitted that the decedent continued along his same path and did not do anything different after the wave. Mann, 2005 WL 396584 at *6-7. Based on the evidence presented, the appellate court held that where non-reliance by the decedent on the alleged wave was just as probable as reliance by the decedent on the wave, the conclusion that there was reliance on the alleged wave is a matter of speculation, surmise and conjecture and a trier of fact cannot make such a conclusion. Therefore, the appellate court ruled that summary judgment for defendants PCC and Bartow was appropriate. Allegations of BOCA Violations Barred Section 2-615 Dismissal Marshall v. Burger King, 2005 WL 545386 (2nd Dist., March 4, 2005). The decedent, Detroy Marshall, III, was killed when a car driven by defendant, Pamela Fritz, crashed through the wall of a Burger King restaurant and struck him. The accident happened when Fritz when trying to leave Burger King and she backed her car into a lamppost in the parking lot. Driving forward from the lamppost, she lost control of her vehicle, drove up on the sidewalk, became airborne and crashed through the largely windowed wall of the restaurant. The decedent’s estate filed suit against defendants Burger 52 King and its franchise owner, Davekiz, Inc., for their failure to exercise due care in the design and construction of the restaurant by not installing protective barriers around the building. The plaintiff claimed that these failures were the proximate cause of the decedent’s injuries. The property owner defendants filed a motion to dismiss pursuant to Section 2-615 of the Illinois Code of Civil Procedure. They argued they had no duty under the law to protect their patrons from the threat of runaway cars crashing into the restaurant. The trial court granted the motion and the plaintiff appealed. The issue on appeal was whether the trial court erred in holding that the defendants had no duty to take any of the precautions cited by the plaintiff in the complaint. The elements of a common-law action for negligence are: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to the plaintiff proximately resulting from the breach. Trevino v. Flash Cab Co., 272 Ill. App. 3d 1022, 1027, 651 N.E.2d 723 (1st Dist. 1995). Whether a duty exists depends upon whether the parties stand in such a relationship to one another that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff. Marshall, 2005 WL 545386 at *2, citing Ellison v. Village of Northbrook, 272 Ill. App. 3d 559, 566, 650 N.E.2d 1059 (1st Dist. 1995). The plaintiff’s complaint stated a cause of action against the defendants for negligence. The plaintiff alleged specific ways in which the defendants failed to guard against the possibility of cars penetrating the restaurant and injuring patrons. The appellate court held that based on the allegations in the complaint, it could not say as a matter of law, that such precautions were beyond the duty of reasonable care owed by a premises owner in the defendants’ situation. The appellate court cited to and relied on two Illinois cases that have recognized the duty of premises owners to protect invitees from the dangers of runaway vehicles despite the relevant rarity of such incidents. See, Ray v. Cock Robin, Inc., 57 Ill. 2d 19, 23, 310 N.E.2d 9 (1974) and Marquardt v. Cernocky, 18 Ill. App. 2d 135, 137-38, 151 N.E.2d 109 (2nd Dist. 1958). In granting the motion to dismiss, the trial court cited to policy reasons why the defendants should not be held responsible for failing to insure that runaway vehicles could not penetrate the restaurant. The trial court determined that the precautions the plaintiff cited could compromise the aesthetic qualities of business premises. The appellate court responded that by relying on the policy reasons, the trial court was overlooking the plaintiff’s allegation that the defendants departed from custom and practice in the industry, as well as violated the Building Officials and Code Administrators’ (BOCA) building code, by not taking the asserted precautions. Second Quarter 2005 Marshall, 2005 WL 545386 at *3. The appellate court determined that in alleging that the defendants’ conduct was unreasonable in light of an industry code, as well as custom and usage, the plaintiff created a question of fact as to whether the defendants’ failure to take precautions was a breach of their duty of reasonable care, despite whatever cost or inconvenience would be involved in exercises that duty. Id. at *4. The appellate court was also not persuaded by the principal cases cited by the defendants, Simmons v. Aldi-Brenner Co., 162 Ill. App. 3d 238, 515 N.E.2d 403 (3rd Dist. 1987) and Stutz v. Kamm, 204 Ill. App. 3d 898, 562 N.E.2d 399 (4th Dist. 1990). In Simmons, a grocery store patron lost consciousness as she was driving into the parking lot and drove through the glass front wall of the store, killing several other patrons. The appellate court reversed the jury’s verdict and ruled that a duty did not legally exist requiring the defendant to protect against the injury caused by the vehicle because it would be mere speculation to say the safety features would have prevented the accident. In Stutz, a driver accidentally drove off the rear edge of a parking lot of a driver service facility and crashed into the building. The appellate court upheld the Section 2-615 dismissal of the complaint because it held a duty did not legally exist that required the defendants to prevent the type of harm that occurred. In this case, the appellate court declined to follow Simmons and Stutz because it disagreed with the reasoning provided by the appellate courts in each case. Marshall, 2005 WL 545386 at *4-6. Based on the appellate court’s ruling that the allegations asserting BOCA violations automatically created a question of fact, the trial court’s dismissal was reversed and the case was remanded. A dissenting opinion was included in which the dissenter disagreed that a duty of care existed. The dissent relied on the cases cited by the defendant, Simmons and Stutz. The dissent was also concerned that the court relied on the BOCA violation allegations, even though the plaintiff failed to identify which codes were violated and if those codes were in effect in the town at issue. Id. at 6-7. property managers, for negligently maintaining the building. Approximately six months after the statute of limitations expired, the plaintiff learned during discovery that the property owners were responsible for property maintenance and not the property managers. The plaintiff then filed a motion to amend the complaint and add the property owners as defendants and the motion was granted. The property owners filed a motion to dismiss because the action was time barred by the statute of limitations. The plaintiff responded that the complaint related back pursuant to Section 2-616(d) of the Illinois Code of Civil Procedure. The trial court granted the motion to dismiss and the plaintiff appealed. Section 2-616(d) prevents a cause of action against a person not originally named a defendant from being time barred by the lapse of time by any statute or contract as long as three terms and conditions are met. If the conditions are met, the amended complaint adding the new defendant relates back to the date of the filing of the original pleading. Section 2-616(d) was recently amended in 2002 and it now requires that would-be defendants “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him or her.” 735 ILCS 5/2-616(d)(2). Under this new requirement, the appellate court concluded that it must first determine whether there is a case of mistaken identity before it could determine whether the amended complaint would relate back to the original pleading. Pruitt, 2005 WL 396585 at *2-3. Based on the evidence, the appellate court determined that the plaintiff did not intend to sue the property owners. The plaintiff assumed the property managers were solely responsible for property maintenance and that assumption did not change until six months after the statute of limitations expired. Therefore, the plaintiff’s failure to name the defendants was not a “mistake” as is required under Section 2-616(d). The plaintiff simply lacked sufficient information to understand the property owner’s involvement in property maintenance. Since there was no “mistaken identity,” the appellate court determined that the dismissal was proper and it was affirmed. Pruitt, 2005 WL 396585 at *4. Use of Mistaken Identity to Toll Statute of Limitations Pruitt v. Pervan, 2005 WL 396585 (1st Dist., February 15, 2005). The plaintiff, Jennifer Pruitt, fell on a stairway of a building she was visiting. She filed suit against Wolin-Levin, the 53 IDC Quarterly Supreme Court Watch By: Beth A. Bauer Burroughs, Hepler, Broom, MacDonald, Hebrank and True Edwardsville Where Both Parties Sue for Negligence, Can the Jury Reject Both Claims Under IPI B21.04? Redmond v. Socha, Gen. No. 99625, appealed from 1st Dist. No. 1-03-3568 The plaintiff filed suit against the defendant seeking damages resulting from an alleged auto accident where the defendant’s car struck the plaintiff’s motorcycle. The defendant filed a counterclaim against the plaintiff for negligence. At trial the court instructed the jury that it could find against both the plaintiff on his complaint and the defendant on her counterclaim based on IPI B21.04, the Illinois Pattern Instruction on burden of proof. Neither party objected to the instruction given and the jury found that neither of them was negligent. The plaintiff filed a motion for a new trial, which the trial court granted upon finding that the verdicts were inconsistent and against the manifest weight of the evidence. The Illinois Appellate Court, First Judicial District, affirmed the order granting a new trial, holding that the verdicts were inconsistent and acknowledging that its decision conflicted with Barrick v. Grimes, 308 Ill. App. 3d 306, 309, 720 N.E.2d 280 (4th Dist. 1999). Unlike the Barrick court, the First District found that it would have been an “unreasonable” hypothesis to conclude that both parties had failed to meet their burden of proof. The First District further stated that one or both of the parties had to be negligent, and it was impossible that both drivers could be more than 50% at fault. The defendant seeks review in the Illinois Supreme Court because he argues that the opinion of the appellate court conflicts with Barrick and Boasiako v. Checker Taxi Co., 140 Ill. App. 3d 210, 488 N.E.2d 672 (1st Dist. 1986). The defendant maintains that the appellate court should have followed Barrick because in that case there is a similar action arising out of an accident between two motorists, where the evidence 54 conflicted as to fault, but that court upheld the verdicts against both the plaintiff and the defendant on the reasoning that the evidence may have been so conflicting, inconclusive and unsatisfactory that it was unable to determine which party was negligent. The defendant claims that by rejecting Barrick, the First District effectively negates one of the outcomes permitted under the instruction as written. The defendant also claims that the appellate court’s decision is contrary to the earlier First District opinion, Boasiako (a pure comparative fault case). In that case the appellate court affirmed a verdict for the plaintiff for his injuries that found him 40% negligent, reduced the award accordingly and found no negligence on the plaintiff’s part as to the defendant’s counterclaim. The defendant also argues that if a jury cannot rule for either or both parties a mistrial should be awarded. According to the defendant, the appellate court effectively negates the instruction as written. Instead, the First District effectively rewrote IPI B21.04 to require a verdict for one party or for the other party or for both parties. Because litigants can no longer rely on IPI B21.04 as a correct statement of the law, the defendant urges supreme court review. Venue Analysis: Are Corporations Residents of Counties Where Their Employees Work from Their Homes? Corral Junior v. Mervis Industries, Inc., Gen. No. 99698, 1st District No. 1-03-0129 The plaintiff filed suit in Cook County on behalf of his decedent who was killed in Vermilion County at the defendant’s railroad yard. According to the defendant, it is an Illinois corporation that is headquartered in Vermilion County and whose registered agent and president reside in Vermilion County. The defendant states that it has no facilities or operations in Cook County, other than a sales employee who does his work from About the Author Beth A. Bauer concentrates her practice in the area of appellate practice at Burroughs, Hepler, Broom, MacDonald, Hebrank and True in Edwardsville. She graduated cum laude from St. Louis University School of Law in 2000 and received her B.A. with honors from Washington University in 1997. Ms. Bauer is a member of the Illinois and Missouri State Bar Associations and National Christian Legal Society. Second Quarter 2005 his home. The sales person brokers sales of plastic scrap by telephone and computer that are neither shipped to nor from Cook County and less than 1% of the defendant’s sales are to Cook County customers. The defendant states that on these undisputed facts, the trial court held that Mervis had an office in Cook County because the sales employee worked out of his Cook County home. The First District Appellate Court affirmed the trial court’s finding of appropriate venue in Cook County and found no abuse of discretion. The defendant seeks review by the Illinois Supreme Court to settle the issue of the appropriate standard of review on cases of improper venue and further argues that the First District erred in finding that an employee’s home office constitutes the employer’s “office” for purposes of the venue statute. First, the defendant contends that de novo is the appropriate standard of review, citing the following cases: Boxdorfer v. Daimler Chrysler Corp., 339 Ill. App. 3d 335, 790 N.E.2d 391 (5th Dist. 2003); Reynolds v. GMAC Financial Services, 344 Ill. App. 3d 843, 801 N.E.2d 11 (5th Dist. 2003); Reichert v. Court of Claims of the State of Illinois, 327 Ill. App. 3d 390, 736 N.E.2d 402 (5th Dist. 2002), vacated on other grounds, 203 Ill. 2d 257, 786 N.E.2d 174 (2003); Lake County Riverboat L.P. v. Illinois Gaming Board, 313 Ill. App. 3d 943, 730 N.E.2d 524 (2d Dist. 2000). According to the defendant, each of these cases applying the de novo standard of review is better reasoned than the cases applying the abuse of discretion standard, particularly in a case like the one at issue where the facts are undisputed. Second, the defendant argues that Cook County is an improper venue because the defendant does no business in Cook County and has no office in Cook County. The defendant contends that the appellate court’s decision is directly contrary to Peterson v. Monsanto Co., 157 Ill. App. 3d 508, 510 N.E.2d 458 (5th Dist. 1987), which held that a corporation does not become a resident of a county merely because it has an employee that lives there and who does business out of his home. The defendant points out that for venue to be proper, the defendant’s activity in the forum county “must be of such a nature as to localize the business and make it an operation within the district,” quoting Melliere v. Luhr Bros., Inc., 302 Ill. App. 3d 794, 706 N.E.2d 40 (5th Dist. 1999). The defendant argues that the correct application of that language to the facts of this case demand transfer from Cook County to Vermilion County. Does the Savings Clause Trump the Two-Year Statute of Limitations for Filing Contribution Claims? Barragan v. Osman Construction Corp., et al., Gen. No. 99261, 1st District 1-01-2557 The defendant contractor settled the case in chief with the plaintiffs who were injured while working for a subcontractor on a construction project being run by the contractor without contribution from the defendant architect. Approximately six weeks before that settlement was approved the contractor filed a counterclaim for contribution against the architect seeking to recover the portion of its payment attributable to the architect’s negligence. The architect moved to dismiss the contractor’s counterclaim against it, arguing that it was barred by the statute of limitations for contribution claims under 735 ILCS 5/13-204, which requires the filing of any contribution action within two years of being served with process in the plaintiff’s action. It was undisputed that it had been more than two years since the plaintiffs had originally served the contractor with the complaint. The contractor argued that the Code of Civil Procedure contained a savings clause in Section 13-207 that permits the filing of counterclaims that otherwise would be time barred. The trial court agreed with the architect and dismissed the contractor’s counterclaim. In a split decision, the appellate court affirmed the trial court’s dismissal. The majority held that the savings clause was a statute of limitation, and was thus preempted by the statute of limitation for contribution claims. One justice dissented, rejecting the majority’s characterization of the savings clause and observing that the statute of limitations expressly preempts only other statutes of limitation and repose. The contractor seeks review in the Illinois Supreme Court, arguing that there is a split in authority among Illinois appellate courts regarding whether the savings clause trumps the statute of limitations for contribution claims. The defendant cites several Illinois appellate court decisions that have interpreted the savings provision to control over the statute of limitation and thereby “saving” an otherwise barred claim if it in fact arose before the counterclaim was barred. See, e.g., Mermelstein v. Rothner, 349 Ill. App. 3d 800, 804-05 (1st Dist. 2004); Westbank v. Maurer, 276 Ill. App. 3d 553, 564 (2d Dist. 1995); Cameron Jenn. Corp. v. Hafnia Holdings, Inc., 289 Ill. App. 3d 495, 506 (1st Dist. 1997); Benckendorf v. Burlington Northern R.R., 112 Ill. App. 3d 658, 663 (2d Dist. 1983). (Continued on next page) 55 IDC Quarterly Supreme Court Watch (Continued) For the contrary position, where the statute of limitations prevails over the savings provision, the contractor cites another First District case: Johnson v. Core-Vent Corp., 264 Ill. App. 3d 833, 837-38 (1st Dist. 1993). The contractor contends that the majority appellate opinion characterizes the statutes in question in ways that flatly contradict their plain language and are in conflict with the previous authority on the subject. Finally, the contractor requests that the supreme court take this case to adopt a consistent interpretation of the savings provision and determine its scope so that it is possible for litigants to predict how it might be applied in any particular instance. Professional Liability By: Martin J. O’Hara Quinlan & Carroll, Ltd. Chicago Beware of the Pitfalls Associated With the Production of E-Discovery E-discovery is currently one of the legal profession’s primary buzzwords. Attorneys regularly receive brochures or flyers for legal seminars, many of which now include some discussion of e-discovery. Because the subject is very broad, these discussions range from document retention policies to retrievals of deleted e-mails. Although many of us might be inclined to ignore these discussions, a recent decision from a Florida circuit court requires every defense counsel to become educated in the area of e-discovery. See, Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL 674885 (Fla. Cir. Ct. March 23, 2005). In late 1997 or early 1998, Coleman (Parent) Holdings, Inc. (“Coleman”) negotiated and consummated a sale of its 82% interest in Coleman Company, Inc. to Sunbeam Corporation (“Sunbeam”). Morgan Stanley & Co., Inc. (“Morgan Stanley”) served as financial advisor to Sunbeam for parts of the acquisition transaction, and served as the lead underwriter for a $750,000,000 debenture offering that Sunbeam used to About the Author Martin J. O’Hara is a partner with the Chicago firm of Quinlan & Carroll, Ltd. His practice is devoted to litigation, including commercial cases, and the defense of professionals in malpractice actions. Mr. O’Hara received his B.A. from Illinois State University and J.D. with honors from John Marshall Law School. He is a member of DRI, IDC, ISBA and CBA. 56 Second Quarter 2005 finance the cash portion of the deal. Subsequent to the consummation of the sale, Coleman brought an action against Morgan Stanley alleging fraudulent misrepresentation, negligent misrepresentation, and aiding and abetting fraud and conspiracy. Coleman sought damages of at least $485 million. During the course of the litigation, Coleman served Morgan Stanley with a request for the production of documents. The request sought all documents connected with the Sunbeam transaction. The request defined “documents” as items that were electronically stored. In response, Morgan Stanley produced in excess of 8,000 pages of documents. However, the production included “only a handful of emails.” Id. at *1. Concerned that it had not received full compliance with its request, Coleman filed a motion to compel. The motion sought an order requiring Morgan Stanley to make a full investigation for e-mail messages, including a search of magnetic tapes and hard drives. Coleman’s motion further sought the production of any responsive e-mails located during the search, as well as an order requiring Morgan Stanley to produce a witness to describe the search that had been conducted. Morgan Stanley objected to the motion, asserting that Coleman merely wanted the court to order a “massive safari into the remote corners of [Morgan Stanley’s] email backup systems.” Id. at *2. Morgan Stanley represented to the court that the search requested by Colemen would cost hundreds of thousands of dollars and require several months to complete. Morgan Stanley further contended that Coleman was merely seeking to harass and burden Morgan Stanley with unnecessary and costly discovery demands. Despite Morgan Stanley’s objections, the parties agreed to reciprocal corporate depositions relating to the issue of e-mail recovery. In accordance with their agreement, Coleman deposed an executive director of IT for Morgan Stanley regarding its production of e-mail messages that were responsive to Coleman’s discovery requests. However, Coleman and Morgan Stanley were unable to agree on a mutual e-mail restoration protocol. Coleman therefore filed a motion seeking permission to have a third-party vendor be given access to both parties’ e-mail systems for restoration purposes. Morgan Stanley objected to this option because it purportedly would entail an enormous cost to Morgan Stanley. Coleman then filed another motion to compel, seeking all responsive e-mail communications. On the eve of the hearing on that motion, the parties reached a compromise and the court entered an agreed order. The agreed order provided that Morgan Stanley would: (1) search the oldest full backup tape for each of the 36 Morgan Stanley employees involved in the Sunbeam transaction; (2) review e-mails dated from February 15, 1998, through April 15, 1998, and e-mails containing any of the 29 specified search terms, including “Sunbeam” and “Coleman,” regardless of their date; (3) produce all nonprivileged e-mails responsive to Coleman’s document requests; (4) provide Coleman with a privilege log; and (5) certify that it had fully complied with the agreed order. Pursuant to the agreed order, Morgan Stanley produced approximately 1,300 pages of e-mails to Coleman. However, it did not initially certify compliance with the agreed order. After pressure from Coleman, Morgan Stanley served a certificate of compliance signed by an executive director and manager of Morgan Stanley’s law/compliance IT group. Almost five months after serving the certificate, counsel for Morgan Stanley advised Coleman’s counsel that Morgan Stanley had discovered additional e-mail backup tapes. Morgan Stanley’s counsel stated that the data on some of the newly discovered tapes had been restored, and that Morgan Stanley had run the previously agreed-to searches on the newly discovered tapes. He further advised that some responsive e-mail had been located as a result of the process, and that Morgan Stanley would produce the responsive documents to Coleman as soon as the production was finalized. Not surprisingly, counsel for Coleman responded with numerous questions. Counsel inquired as to how it was that Morgan Stanley located the tapes only recently. He further asked about the status of the search of the backup tapes, and inquired as to whether additional responsive e-mails had been located from the recently located tapes. Rather than responding to each of the inquiries, counsel for Morgan Stanley wrote back to Coleman’s counsel and stated that no additional responsive e-mails had been located. Unhappy with the lack of responses to his questions, Coleman’s counsel wrote again and posed additional questions. Among other things, he inquired as to whether the review of the recently located backup tapes was still ongoing. He then requested that Morgan Stanley’s counsel confirm that all e-mail backup tapes from the relevant time period had been reviewed, and that all responsive e-mails had been produced. Lastly, he stated that if the review was still proceeding, Morgan Stanley should inform Coleman as to when the review would be completed. Thereafter, counsel for Morgan Stanley responded to the letter. He stated that the restoration of the e-mail backup tapes was ongoing. He stated that restoration of the “next set of backup tapes” would likely be completed within the month. He further stated that Morgan Stanley would run the previously agreed-to searches on the next set of backup tapes once the restoration was completed. (Continued on next page) 57 IDC Quarterly Professional Liability (Continued) At this point counsel for Coleman became skeptical of whether Morgan Stanley had complied with the agreed order that had been entered months earlier, and whether the certificate of compliance had been given in good faith. Counsel specifically requested that Morgan Stanley explain the circumstances under which the new backup tapes were located, including a specific indication as to when the tapes were located. Counsel also questioned the reference to the “next set of backup tapes.” Counsel asked for the number of tapes that needed to be restored, and whether there were other tapes that were not yet in the process of being restored. He sought a specific timeline for Morgan Stanley to complete the restoration process and to produce all responsive e-mails, noting that the trial was scheduled to begin the following month. In response, counsel for Morgan Stanley stated that additional tapes were found in various locations at Morgan Stanley. The tapes had not been clearly labeled as to their contents and were not found in customary storage locations for e-mail backup tapes. He further stated that many of the tapes were in a different format than other e-mail backup tapes. He indicated that Morgan Stanley’s efforts to restore the backup tapes discovered after its earlier production had been a time-consuming and painstaking process. Nonetheless, he indicated that Morgan Stanley would attempt to complete the search by the end of the month. Based on these responses, Coleman filed a motion for adverse inference instruction due to Morgan Stanley’s destruction of e-mails and Morgan Stanley’s noncompliance with the court’s April 16, 2004, agreed order. The court held an evidentiary hearing on the motion, and concluded that Morgan Stanley had engaged in discovery abuses. The court found that Morgan Stanley had located, but not produced, more than 1,400 backup tapes prior to serving its certificate of compliance. The court additionally found that Morgan Stanley had discovered, but not disclosed, 738 8-mm backup tapes prior to serving its certificate of compliance. Finally, the court found that Morgan Stanley had located a script error that had prevented it from locating responsive e-mail attachments, but had failed to disclose this problem to Coleman or the court. Based on its finding of these discovery abuses, the court entered an order that reversed the burden of proof on the aiding and abetting and conspiracy elements of Coleman’s causes of action. In essence, the court held that Morgan Stanley would have the burden of proving that it did not aid and abet Sunbeam’s fraud upon Coleman. Additionally, the court ordered that a statement regarding Morgan Stanley’s efforts to hide its e-mails would be read to the jury. The 58 court found that the statement could be considered as to both Morgan Stanley’s consciousness of guilt and the appropriateness of punitive damages against Morgan Stanley. Lastly, the court ordered that Morgan Stanley continue to use its best efforts to comply with the agreed order regarding e-mail retrieval. Subsequent to the entry of this order, the court learned of additional discovery abuses both with respect to the e-mail issue and other discovery matters. For example, Coleman had requested performance evaluations relating to the primary individual at Morgan Stanley responsible for the Sunbeam “Based on its finding of these discovery abuses, the court entered an order that reversed the burden of proof on the aiding and abetting and conspiracy elements of Coleman’s causes of action.” deal. In response, Morgan Stanley produced certain evaluations, which noted reservations regarding the individual’s candor and ethics. When two of the evaluators were deposed, they offered vague testimony about the basis for their conclusions regarding his candor and ethics. In reality, it was later learned that the individual was facing criminal prosecution for complicity and bribery at the time he was working on the Sunbeam transaction. As a result of these additional findings, the court went even further in sanctioning Morgan Stanley. In addition to allowing the adverse inference and providing a statement to the jury that Morgan Stanley had hidden e-mail communications, the court granted, in part, Coleman’s motion for entry of a default judgment. Specifically, the court held that approximately 73 paragraphs of Coleman’s complaint would be read to the jury, and the jury would be instructed that those facts were deemed established for all purposes. The court also awarded Coleman its fees and costs incurred as a result of bringing the motion Second Quarter 2005 for default judgment and the violations of the court’s orders recited in the motion. Lastly, the court revoked the pro hac vice admission of Morgan Stanley’s primary attorney. Subsequent to these rulings, Morgan Stanley sought to replace its counsel. Morgan Stanley additionally asserted that its counsel may have committed malpractice. In light of Coleman seeking $2 billion in punitive damages against Morgan Stanley in addition to the enormous compensatory damages being sought, a malpractice action against Morgan Stanley’s counsel potentially could seek in excess of $2 billion in damages. While the magnitude of the damages involved in Coleman is greatly in excess of the damages typically seen in most lawsuits, the issues raised in the case are not so uncommon. As most practitioners can attest, there has been a substantial increase in the amount of e-mail correspondence produced in the course of litigation. At times, 50% to 60% of the documents produced in a case will consist of e-mail correspondence, which is particularly true when the case involves technologically advanced companies or individuals. Thus, attorneys must be particularly diligent in working with their clients to ensure a full and complete production of documents responsive to a discovery request. Attorneys must make specific inquiries from the outset of document collection regarding the manner in which e-mail communications are stored. For example, the attorney should determine if email communications are stored in particular folders within the party’s system. If such e-mails are not routinely saved, the attorney must conduct an investigation as to whether any deleted e-mail communications can be recovered and restored from magnetic tapes or hard drives. The earlier in a case an attorney becomes knowledgeable on these important issues the better. Being knowledgeable about the client’s e-mail storage procedures allows the attorney to be able to determine at an early stage whether electronic document recovery is going to be an issue in the case. If it is going to be an issue, the attorney can put a process in place that ensures that all responsive electronic material is collected and produced. While this process generally will require the cooperation of the client, explaining the discovery obligations to the client at the earliest opportunity should alleviate any problems associated with the gathering of the electronic documents. Moreover, if full compliance with the opposing party’s discovery requests will cause a large financial burden, the attorney can present that issue to the court at the outset, long before being faced with a motion to compel for failure to produce responsive documents. One of the most interesting things about Coleman is that the court never discussed a single e-mail communication that had been produced by Morgan Stanley that was detrimental to its defense of Coleman’s claim. In other words, although Morgan Stanley had been dilatory in producing certain e-mail communications, it does not appear that Morgan Stanley was protecting a “smoking gun” e-mail that would have destroyed its case. Instead, Morgan Stanley’s defense was destroyed by its failure to meet its discovery obligations relating to the production of electronic discovery. Defense counsel must be cognizant of not allowing this to happen to their clients. 59 IDC Quarterly Featured Article Recent Opinion Regarding Voluntary Dismissal Orders Opens the Door for Potential Abuse By: Al Pranaitis Hoagland, Fitzgerald, Smith & Pranaitis Alton Eighty-nine years ago the Illinois Supreme Court concluded that once an order of voluntary dismissal had been entered in a case, the trial court was deprived of jurisdiction to entertain a motion to vacate that dismissal order. Weisguth v. Supreme Tribe of Ben Hur, 272 Ill. 541, 112 N.E. 350 (1916). According to the “Weisguth rule,” a plaintiff’s only recourse for going forward with his or her action after a voluntary dismissal was to file a new suit. Under the Weisguth rule, a trial court had no jurisdiction to vacate a dismissal and reinstate the case when the dismissal had resulted from the plaintiff’s deliberate and voluntary act. In a recent opinion, the Illinois Supreme Court abandoned the Weisguth rule and held that a trial court now does have jurisdiction to hear a motion to vacate a voluntary dismissal order. Hawes v. Luhr Bros., Inc., 212 Ill. 2d 93, 816 N.E.2d 345, 287 Ill. Dec. 583 (2004), rehearing denied, 212 Ill. 2d 93, 816 N.E.2d 345, 287 Ill. Dec. 583 (2004). The court found justification for tossing out the old rule in Section 2-1203(a) of the Code of Civil Procedure, which pertains to “Motions after judgment in non-jury cases.” 735 ILCS 5/2-1203(a). As will be discussed hereinafter, whether Section 2-1203(a) provides an appropriate basis for the Hawes decision is debatable, given what appears to be the purpose for that statute. More importantly, however, Hawes opens the door for potential abuse by plaintiffs through multiple voluntary dismissals and reinstatements of their suits. In Hawes, the Illinois Supreme Court noted that to the extent the Code of Civil Procedure “regulates procedures,” 60 it “takes precedence over the common law.” 212 Ill. 2d at 106. Therefore, according to the ruling in Hawes, Section 2-1203 supersedes the common law rule first announced by the court in Weisguth. The Hawes opinion noted that the part of the Weisguth opinion which became known as “the Weisguth rule” was merely dicta because it had not been the basis of the court’s disposition of the case. Nevertheless, because the issue was one that had been briefed and argued before the Illinois Supreme Court in Weisguth, that part of the Weisguth opinion amounted to judicial dicta rather than obiter dicta. “Judicial dicta have the force of a determination by a reviewing court and should receive dispositive weight in an inferior court.” Id. at 100. In reaching the conclusion that Section 2-1203(a) superseded the Weisguth rule, the Hawes court reviewed a number of prior decisions from four districts of the Illinois Appellate Court and its own opinion in Bettenhausen v. Guenther, 388 Ill. 487, 58 N.E.2d 550 (1945). In doing so, the Hawes opinion noted that the various appellate court decisions had “acknowledged the Weisguth rule” but had “taken varying approaches to its application.” Id. at 101. The court also noted that in Bettenhausen, “after restating the Weisguth dicta,” it reversed a trial court order which had allowed the “petitioners leave to withdraw their oral motions to dismiss their petition after the court had already granted the motions.” Id. at 100-01. The Bettenhausen opinion, according to Hawes, concluded that the trial court’s jurisdiction had ended when the voluntary dismissal order was entered and that the trial court had been “wholly without power to enter the order appealed.” Id. at 101. About the Author Al Pranaitis is a partner in the Alton firm of Hoagland, Fitzgerald, Smith & Pranaitis. He practices primarily in the defense of product liability, medical malpractice and other tort litigation and employment discrimination claims. Mr. Pranaitis received his B.S. from the University of Illinois in 1970 and his J.D. from St. Louis University in 1975. He is licensed to practice in Illinois and Missouri. He authored the Monograph on Voir Dire and a feature article on Collateral Source in the IDC Quarterly, Vol. 14, No. 1. Mr. Pranaitis is a Fellow of the American College of Trial Lawyers and a member of the IDC, DRI, ABA, ISBA, Bar Association of the Central and Southern Districts of Illinois (BACS), Madison County Bar Association and Alton-Wood River Bar Association. Second Quarter 2005 The Hawes opinion noted that the First District had “uncritically applied” the Weisguth rule and the Third District had “consistently applied” it. Id. at 101, 102. The Hawes opinion also pointed out that the Second District originally acknowledged the Weisguth rule in a 1978 opinion, but several years later found the rule to be “a relic of the past” which was superseded by the Code of Civil Procedure and Supreme Court Rule 304(a). Id. at 102. Regarding the Fifth District, the Hawes opinion noted that in Weilmuenster v. Illinois Ben Hur Construction Co., 72 Ill. App. 3d 101, 390 N.E.2d 579, 28 Ill. Dec. 412 (5th Dist. 1979) and Ripplinger v. Quigley, 231 Ill. App. 3d 1002, 597 N.E.2d 260, 173 Ill. Dec. 552 (5th Dist. 1992) the appellate court had refused to apply the Weisguth rule. Discussing Weilmuenster, the Illinois Supreme Court noted that the appellate court had “held that jurisdiction is derived from article VI, section 9, of the Illinois Constitution of 1970, and that jurisdiction will generally terminate upon passage of 30 days after entry of a final order. Within that 30-day period, however, the trial court retains jurisdiction to reconsider its judgments and orders.” Hawes, 212 Ill. 2d at 103. The Hawes opinion also noted that in Ripplinger the appellate court had found that “dismissals and reinstatements are governed by the Civil Practice Act 1 and by supreme court rule” and that there was no reason to continue to follow the Weisguth dicta. Id. Without expressly saying so, the Hawes opinion agreed with the Fifth District’s rationale in Ripplinger. The conclusion that Section 2-1203(a) confers jurisdiction on a trial court to hear a motion to vacate a voluntary dismissal order is debatable. Neither the context of the statute nor the background for its enactment easily leads to the conclusion that Section 2-1203(a) pertains to motions to vacate voluntary dismissal orders. Moreover, a plain reading of the statute seems to lead to the conclusion that Section 2-1203(a) has nothing at all to do with the motion to vacate the voluntary dismissal order, which was in question in Hawes. Section 2-1203(a) states: Motions after judgment in non-jury cases. (a) In all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief. In considering the intent of this statute one can first note that it appears in Part 12 of the Code of Civil Procedure. Part 12 pertains to “Post-Trial” matters. Every section in Part 12 describes procedures that take place after trial. None of the sections in Part 12 refer to procedures that take place before trial. The sections of the Code of Civil Procedure pertaining to pre-trial procedures appear in Part 10, “Pre-Trial Steps.” When an order of voluntary dismissal is entered before a case proceeds to trial, as occurred in Hawes, obviously no trial has taken place. How then can a motion to vacate that voluntary dismissal order be a motion in a case tried without a jury? In finding Section 2-1203(a) applicable to voluntary dismissal orders, the Hawes opinion focused on the word “judgment” in Section 2-1203(a). In particular, the Illinois Supreme Court noted that it previously had concluded that a voluntary dismissal is a final judgment. Thus, according to the court’s analysis, a motion to vacate a voluntary dismissal order is a motion to vacate a judgment. Hawes, 212 Ill. 2d at 105-06, citing Swisher v. Duffy, 117 Ill. 2d 376, 512 N.E.2d 1207, 111 Ill. Dec. 570 (1987). But what about the words “tried without a jury” in the statute? The restrictive introductory clause in Section 2-1203(a) – “In all cases tried without a jury” – plainly seems to limit the applicability of the statute to motions made after judgment has been entered following the conclusion of non-jury trials, not judgments entered prior to a trial. Section 2-1009 of the Code of Civil Procedure, 735 ILCS 5/2-1009, which governs the procedure for motions for voluntary dismissal, provides that such motions can be made before the trial or hearing begins or after the trial or hearing begins. It is worth noting that Section 2-1009 does not provide a procedure for a motion for voluntary dismissal after judgment has been entered in a trial – jury or non-jury. Thus it does not appear the legislature contemplated that Section 2-1203(a) would pertain to voluntary dismissals under Section 2-1009, when the latter statute expressly refers to motions made before or during trial (but not after) and the former refers only to motions made after trial (but not before.)2 Even though Section 2-1203(a) refers to judgments entered in cases that have been “tried,” the Hawes opinion does not limit its applicability to motions made after a trial has concluded and a judgment has been entered. Indeed, the voluntary dismissal order and vacation of that order in Hawes were both before trial began. The Historical and Practice Notes, which appeared after Section 2-1203 prior to the recodification of the Code of Civil Procedure from Chapter 110 of the Illinois Revised Statutes (Continued on next page) 61 IDC Quarterly Voluntary Dismissal (Continued) to its present location in Chapter 735 of the Illinois Compiled Statutes (ILCS), further illustrate the curiousness of the conclusion reached in Hawes. Commenting on this statute, those notes state as follows: the motion to vacate the order of voluntary dismissal was not a post-trial motion to vacate a judgment. In interpreting Section 2-1203(a) in Hawes, the Illinois Supreme Court stated: The plain language of a statute provides the most reliable indicator of legislative intent, and we must not depart from the plain language of a statute by reading into it exceptions, limitations, or conditions that conflict with the express legislative intent. Derivation This section was section 68.3 of the Civil Practice Act as in force at the effective date of the Code of Civil Procedure, without change of substance. Section 68.3 was added to the Civil Practice Act in 1955 to provide a procedure for post-trial motions in non-jury cases comparable to that set forth in the predecessor of section 2-1202 for motions after entry of the verdict in jury cases. People ex rel. Drury v. Catholic Home Bureau, 34 Ill. 2d 84, 213 N.E.2d 507 (1966). Subsection (a) While courts had always entertained motions to vacate judgments or decrees in non-jury law cases as well as in equity cases, prior to 1955 there was no provision for a motion for a new trial in a non-jury law case. Climax Tag Co. v. American Tag Co., 234 Ill. 179 (1908); Atlas Finishing Company v. Anderson, 336 Ill. App. 167, 83 N.E.2d 177 (1st Dist. 1949). The predecessor of section 2-1203(a) filled that hiatus in the existing law. Originally, the post-trial motions which courts had entertained in non-jury law cases and in equity cases could be made at any time during the term of court in which the judgment or decree was entered. The control by the trial court over its judgments and decrees was later limited by statute to a period of 30 days following the entry of the judgment or decree, and the predecessor of section 2-1203(a) correspondingly provided that all post-trial motions in non-jury law and in equity cases must be made within that time period. Smith-Hurd Illinois Annotated Statutes (1983), ch. 110, par. 2-1203, Historical and Practice Notes (emphasis added) The conclusion that Section 2-1203 was intended to apply to motions made after trial, i.e. post-trial motions, and not to the pre-trial motion which was the subject of Hawes, is also supported by an update to the Historical and Practice Notes, which stated: “Section 2-1203 authorizes the filing of a post trial motion only after judgment has been entered . . . .” 1992 Cumulative Annual Pocket Part, S.H.A., ch. 110, par. 2-1203, Supplement to Historical and Practice Notes. As stated above, when the order of voluntary dismissal was entered in Hawes, the case had not been “tried.” Thus 62 212 Ill. 2d at 105. The court then concluded that Section 2-1203(a) consists of “plain language.” Id. Despite the apparently plain language in Section 2-1203(a) limiting its applicability to post-trial motions, the context of the statute as part of the “Post-Trial” part of the Code of Civil Procedure and the background of its enactment as indicated in the Historical and Practice Notes, the Hawes opinion extends the statute’s applicability to motions to vacate voluntary dismissal orders entered before trial. The ruling effectively deletes the word “tried” from the statute. The applicability of Section 2-1203(a) to the Hawes suit is also debatable because the suit was a jury case, not a non-jury case.3 See, 212 Ill. 2d at 95. By ruling that Section 2-1203(a) applies to the motion to vacate the voluntary dismissal order in Hawes (a case in which a jury demand had been made), and by ruling that Section 2-1203(a) supersedes the ruling in Weisguth (a jury case), the Illinois Supreme Court has effectively removed the words “non-jury cases” and the words “tried without a jury” from the statute. After Hawes, Section 2-1203(a) effectively reads: Motions after judgment. (a) In all cases any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief. Regardless of whether one may question the court’s reliance on Section 2-1203(a) as the basis for its decision, the Hawes opinion is now a matter of stare decisis. Because it is now clearly the law that a plaintiff has a right to seek vacation of an order of voluntary dismissal and reinstatement of the case prior to trial, a number of questions or concerns regarding how this development might affect civil trial practice merit consideration. The first question is whether a plaintiff will automatically be allowed to have a voluntary dismissal order vacated and Second Quarter 2005 the suit reinstated. Apparently the answer to this question is no. Under Hawes, Section 2-1203(a) provides only the availability of the remedy of vacation of the dismissal order and reinstatement of the suit, not a guarantee that the remedy will be granted. Section 2-1203(a) permits the filing of a motion to vacate within 30 days after entry of the order or within any extension of time granted for filing the motion. But Section 2-1203(a) does not say that the trial court must grant the motion. Whether to grant the motion is a matter for the trial court’s discretion. See, Hawes, 212 Ill. 2d at 106. If the trial court denies a motion to vacate an order of voluntary dismissal, a plaintiff who wishes to keep his or her “Additionally, under Section 13-217 any re-filing of a voluntarily dismissed suit must take place within one year of the date of the prior dismissal, or whatever time remains before the applicable statute of limitations runs, whichever is longer.” case going will have to take one of two actions – appeal from the order denying the motion to vacate, or file a new suit. Another concern is whether there is any limit to the number of times a plaintiff can obtain vacations of voluntary dismissal orders. Section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217) limits the plaintiff’s ability to refile suit after a prior voluntary dismissal of that suit. Under Section 13-217 the plaintiff is allowed only one refiling of a suit previously dismissed per motion for voluntary dismissal. Gendek v. Jehangir, 119 Ill. 2d 338, 518 N.E.2d 1051, 116 Ill. Dec. 230 (1988). Additionally, under Section 13-217 any re-filing of a voluntarily dismissed suit must take place within one year of the date of the prior dismissal, or whatever time remains before the applicable statute of limitations runs, whichever is longer. But vacating an order of voluntary dismissal and reinstating the case is not the equivalent of a refiling of the suit. When an order is vacated, it is as if the order had not been entered at all; it has the same effect as a void order. Kelch v. Watson, 237 Ill. App. 3d 875, 604 N.E.2d 971, 178 Ill. Dec. 448 (3rd Dist. 1992) Apparently no statute or rule prevents a plaintiff who has succeeded in getting a previously dismissed case reinstated from taking another voluntary dismissal and later refiling the suit within one year or whatever time remains under the statute of limitations. Id. Additionally, because allowing or not allowing vacation of a voluntary dismissal order and reinstatement of a suit pursuant to a timely filed motion is a matter of discretion, the possibility of abuse of the procedure exists. Conceivably a trial judge could exercise discretion and allow a plaintiff to obtain multiple voluntary dismissals followed by vacations of the dismissal orders and reinstatement of the suit. To assure that type of abusive practice does not occur, Section 13-217 or 2-1203(a) should be changed to allow a plaintiff who voluntarily dismisses a case either one reinstatement or one refiling, but not both. Yet another concern is whether plaintiffs will be allowed to use the vehicle of a voluntary dismissal followed by a motion to vacate the dismissal order as a ruse for continuing the trial. Subject to two qualifications, Section 2-1009(a) of the Code of Civil Procedure (735 ILCS 5/2-1009(a)) confers on plaintiffs an “unfettered right” to voluntarily dismiss their suits without prejudice before the trial or hearing begins. Morrison v. Wagner, 191 Ill. 2d 162, 165, 729 N.E.2d 486, 246 Ill. Dec. 113 (2000). The first qualification is provided by subsection (b) of section 2-1009, which gives the trial court discretion to hear and decide a defendant’s case-dispositive motion (e.g., a summary judgment motion) before ruling on the motion for voluntary dismissal. Id. The second qualification is that a motion for voluntary dismissal may not be granted if doing so would directly conflict with an Illinois Supreme Court rule. Id., citing Catlett v. Novak,116 Ill. 2d 63, 69, 506 N.E.2d 586, 106 Ill. Dec. 786 (1987) and O’Connell v. St. Francis Hospital, 112 Ill. 2d 273, 492 N.E.2d 1322, 97 Ill. Dec. 449 (1986). Thus, assuming that neither of the two qualifications are present, a plaintiff who may not want to go to trial, but who has no good excuse for getting the trial continued, can effectively continue the trial by exercising the unfettered right to dismiss the case voluntarily and then (within the next 30 days) filing a motion to vacate the dismissal. When asked to make a discretionary ruling that will allow a plaintiff to keep (Continued on next page) 63 IDC Quarterly Voluntary Dismissal (Continued) a suit alive, which has not been disposed of on the merits, trial judges naturally tend to exercise discretion in a way that keeps the case going. Hopefully trial judges will discern when a voluntary dismissal order followed by the filing of a motion to vacate is simply a ruse by the plaintiff’s attorney to obtain a trial continuance. Under such circumstances discretion will be better exercised by denying the motion to vacate. Of course, diligent, skilled plaintiff’s attorneys with meritorious cases are not likely to abuse the process in this way. However, a less-than-diligent plaintiff’s attorney who finds himself or herself unprepared to proceed to trial, or a plaintiff’s attorney who senses that the defendant might be hindered in its defense by postponement of the trial, might very well employ this method simply to put off the trial for a while. Supreme Court Rule 219(e) attempts to discourage abuse by plaintiffs of their right to obtain voluntarily dismissals. That rule states: A party shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit. In establishing discovery deadlines and ruling on permissible discovery and testimony, the court shall consider discovery undertaken (or the absence of same), any misconduct, and orders entered in prior litigation involving a party. The court may, in addition to the assessment of costs, require the party voluntarily dismissing a claim to pay an opposing party or parties reasonable expenses incurred in defending the action including but not limited to discovery expenses, expert witness fees, reproduction costs, travel expenses, postage, and phone charges. The first sentence of Rule 219(e) does provide some constraint on an unwarranted dismissal followed by reinstatement. That part of the rule should guarantee that a plaintiff will not be allowed to avoid compliance with scheduling deadlines, rules, and so forth via a voluntary dismissal. The rule appears to apply even if the voluntary dismissal order is vacated. However, that part of the rule does not prevent the effective continuance of the trial via a voluntary dismissal of the case followed by a reinstatement, if the trial had been scheduled to start within 30 days of the time the voluntary dismissal order is entered. The relief available under the second sentence of Rule 219(e) also offers only limited help to a defendant in a voluntarily dismissed but reinstated case. Once the case is reinstated, any scheduling order previously entered under Supreme Court 64 Rule 218 should be in effect again. The only date that might have to be amended would be the trial date, if the dismissal and reinstatement had the effect of continuing the trial, as discussed above. The possibility of an award to the defendant of reasonable expenses incurred in defending a case, as permitted by the third sentence of Rule 219(e), can be a strong deterrent to a plaintiff voluntarily dismissing a case. But, of course, since the rule says the court “may” award expenses, whether to “Because when an order is vacated it has the same effect as a void order (See, Kelch, 237 Ill. App. 3d at 877), it would be difficult to justify an award of expenses on the basis of a voluntary dismissal order which has been vacated.” give any award is a matter of the trial judge’s discretion. In exercising that discretion, the trial judge may decide not to award litigation expenses to the defendant when the case is voluntarily dismissed. Furthermore, even assuming that the judge does award litigation expenses to the defendant under Rule 219(e), if the dismissal order is vacated and the case is reinstated, it is likely that the award of expenses also will have to be vacated. Because when an order is vacated it has the same effect as a void order (See, Kelch, 237 Ill. App. 3d at 877), it would be difficult to justify an award of expenses on the basis of a voluntary dismissal order which has been vacated. Thus, the possibility of getting litigation expenses reimbursed likely will benefit the defendant only if the motion to vacate the voluntary dismissal order is denied. Whether or not the trial judge applies Rule 219(e) in a way that benefits the defendant, whenever a case is reinstated or refiled after a voluntary dismissal, the defendant will have the disadvantage of continuing to incur attorney’s fees, costs and expenses through the protraction of the litigation. Second Quarter 2005 Probably the most effective way of preventing a plaintiff from abusing the system through taking multiple voluntary dismissals is for the Illinois Supreme Court to adopt a rule or for the legislature to enact a statute limiting a plaintiff to a single reinstatement or refiling of the suit after any voluntary dismissal. Conclusion Hawes v. Luhr Bros., Inc. is a curious decision. Its interpretation of Section 2-1203(a) as applying to motions to vacate voluntary dismissal orders entered prior to trial seems contrary to the plain language of that section of the Code of Civil Procedure. More importantly, the decision opens the door to potential abuse of the plaintiff’s right to obtain a voluntary dismissal. Amendment of the Supreme Court Rules or Code of Civil Procedure may be required to avoid abuse of the procedure. Endnotes The Civil Practice Act was the predecessor to the present Code of Civil Procedure. Section 2-1203 of the Code of Civil Procedure was paragraph 68.3 of the Civil Practice Act. 2 It does not seem logical that Section 2-1009 could authorize motions for voluntary dismissal after trial. Otherwise, a plaintiff could go through a trial and, if a judgment is entered adverse to the plaintiff, voluntarily dismiss the case, re-file it and try it again later. Once a trial has taken place and a judgment has been entered, the plaintiff has no right to dismiss the case voluntarily. See, Commissioners of Union Drainage Dist. No. 3 v. Commissioners of Highways of Towns of Virgil and Cortland, 220 Ill. 176, 77 N.E. 71 (1906); Winger v. Chicago City Bank & Trust Co., 392 Ill. 624, 65 N.E.2d 688 (1946); Baird & Warner, Inc. v. Addison Industrial Park, Inc., 70 Ill. App. 3d 59, 387 N.E.2d 831, 26 Ill. Dec. 1 (1st Dist. 1979). The judgment becomes res judicata. See, Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 665 N.E.2d 1199, 216 Ill. Dec. 642 (1996). 3 The Hawes suit was brought under the Jones Act (46 App. U.S.C. § 688). There is a disagreement in the Illinois appellate court districts concerning whether a defendant in a Jones Act case has a right to demand a trial by jury. The Fifth District Appellate Court has concluded that only the plaintiff, but not the defendant, has a right to demand a jury in a Jones Act suit. See, e.g., Allen v. Norman Bros., Inc., 286 Ill. App. 3d 1091, 678 N.E.2d 317, 222 Ill. Dec. 705 (5th Dist. 1997); Gibbs v. Lewis & Clark Marine, Inc., 298 Ill. App. 3d 743, 700 N.E.2d 227, 233 Ill. Dec. 126 (5th Dist. 1998); Hanks v. Luhr Bros., Inc., 303 Ill. App. 3d 661, 707 N.E.2d 1266, 236 Ill. Dec. 696 (5th Dist. 1999). But the Fourth District disagrees, finding that the defendant also has a right to jury trial in a Jones Act case. Hutton v. Consolidated Grain & Barge Co., 341 Ill. App. 3d 401, 795 N.E.2d 303, 276 Ill. Dec. 950 (4th Dist. 2003). 1 Property Insurance By: Tracy E. Stevenson Chuhak & Tecson P.C. Chicago Obtaining Property after Judgment has Been Rendered Often times, in the excitement or stress of a trial, the thought of what to do after the judgment is entered is not in the forefront of our consciences. Whether you have won or lost at trial, lawyers will quickly recognize that the next step in trial, collection, often results in the service of citations to discover assets. How we defend against a citation or use a citation to obtain payment on a judgment can make a difference to a client, especially pertaining to those assets that may potentially be exempt from collection. This article will briefly discuss the statute and case law pertaining to citations to discover assets. Citations to Discover Assets – The Illinois Statute Usually, collection activities must be commenced through the issuance of a citation to discover assets. Illinois law proscribes that [a] “citation under [735 ILCS 5/2-1402] does not constitute a separate ‘claim or cause of action’ but rather, is a discovery proceeding whereby a creditor is allowed to examine any person with the view of discovering assets or income to be applied to the satisfaction of a judgment.” Green v. Alton Tel. Printing Co., 107 Ill. App. 3d 755, 763-764, 438 N.E.2d 203, 209 (5th Dist. 1982). Thus, the issuance of a citation to (Continued on next page) About the Author Tracy E. Stevenson is a partner in the Chicago firm of Chuhak and Tecson, P.C., where she concentrates her practice in medical malpractice defense and insurance defense. She has defended cases on behalf of physicians and hospitals and represented various major insurance companies in claims for personal injury. She is licensed in Michigan as well as Illinois. 65 IDC Quarterly Property Insurance (Continued) discover assets is a proceeding supplemental to the proceeding in which a judgment was entered. However, similar to a Subpoena, a citation draws third parties into the jurisdiction of the court. Importantly, the statute mandates notice to the judgment debtor to permit the debtor to claim exemptions or otherwise object to a Turnover of Assets. 735 ILCS 5/2-1402 (a) states “whenever a citation is served upon a person or party other than the judgment debtor, the officer or person serving the citation shall send to the judgment debtor, within three business days of service upon the cited party, a copy of the citation and the citation notice, which may be sent by regular first-class mail to the judgment debtor’s last known address.” 735 ILCS 5/2-1402 (a). Thus, the party issuing the citation is not obligated to unequivocally locate the judgment debtor, but must, instead, send notice only to the last known address. In some instances, the already minimal notice provisions may be relaxed further. Illinois courts have recognized the need for an exception to the personal service requirement for 735 ILCS 5/2-1402 matters and allows service upon an attorney who represented the party in the underlying action. Grover v. Franks, 27 Ill. App. 3d 900, 903-905, 327 N.E.2d 71, 73-75 (2nd Dist. 1975). The court in Pub. Taxi Serv., Inc. v. Ayrton, 15 Ill. App. 3d 706, 712-713, 304 N.E.2d 733, 73839 (1st Dist. 1973) allowed notice to be sent to a creditor’s attorney where the attorney had been authorized to represent the creditor in the garnishment proceedings, the attorney had been in the process of enforcing the judgment when he received the debtor’s citation, the attorney knew the creditor’s address but refused to reveal it, and the debtor made every possible effort to locate the creditor before sending notice to the attorney. Further, the court in Manley Motor Sales Co. v. Kennedy, 419 N.E.2d 947, 949-50, 95 Ill. App. 3d 199, 202203 (2nd Dist. 1981) acknowledged that Illinois requires strict application of service rules, but also stresses that this strict application can be avoided if “. . . there is a basis to relax the rules.” Thus, post judgment proceedings should be discussed in depth with a client, whether an attorney is serving citations or representing a judgment debtor. Proof of lack of notice may permit recourse in the event assets are turned over. The importance of the notice to the judgment debtor is to advise the judgment debtor that “the judgment debtor has the right at the citation hearing to declare exempt certain income or assets or both.” 735 ILCS 5/2-1402. A plain reading of this statute suggests that in order to declare certain assets exempt, a judgment debtor must raise the exemption at the citation hearing. (735 ILCS 5/2-1402 (b)(5)). There is little dispute in the law that exemptions are a personal privilege and not a right, thus, if the exemptions are not properly claimed, they 66 may be deemed waived. Guess, Inc. v. Chang, 912 F. Supp. 372, 379 (N.D. Ill. 1995). The court in Guess, Inc. expressly held that if a defendant has the opportunity to claim exemptions and repeatedly fails to do so, the exemptions are deemed waived. The Guess court found that a defendant waived his exemption after claiming it 10 days late. Id. See also, In Re Marriage of Murphy, 338 Ill. App. 3d 1095, 1097, 274 Ill. Dec. 917, 919, (4th Dist. 2003) (finding that 735 ILCS 5/21402 (b) merely set forth the procedure to be followed in supplementary proceedings by a judgment creditor to discover assets that could be used to satisfy a judgment and provided the form for the citation notice; it does not confer any substantive rights or exemptions on a judgment debtor.) The Court Illinois courts have recognized the need for an exception to the personal service requirement for 735 ILCS 5/2-1402 matters and allows service upon an attorney who represented the party in the underlying action. in In Re Marriage of Murphy, 338 Ill. App. 3d 1095, 1097, 274 Ill. Dec. 917, 919, (4th Dist. 2003) found that 735 ILCS 5/2-1402 (b) merely sets forth the procedure to be followed in supplementary proceedings by a judgment creditor to discover assets that could be used to satisfy a judgment and provides the form for the citation notice, but the section does not confer any substantive rights or exemptions on a judgment debtor. If a judgment debtor does not file his or her claim for exemptions at the appropriate time, during those third party citation hearings, he or she may be deemed to have intentionally and knowingly waived his rights. LaVelle v. Dominick’s 227 Ill. App. 3d 764, 771, 592 N.E. 2d 287, 291-292 (1st Dist. 1992). Motions for Turnover Once a party has established that a judgment debtor has assets held by a third party, those assets must be seized. Following receipt of information responsive to a citation, the Second Quarter 2005 attorney for the party seeking to recover the assets generally must file a motion to turn the assets in question over to the Judgment Creditor. 735 ILCS 5/2-1402 (c) grants the court authority to “compel any person cited to execute an assignment of any chose in action or a conveyance of title to real and/or personal property.” In fact, the statute grants the court authority to authorize the judgment creditor to maintain an action against any person or corporation that, it appears upon proof satisfactory to the court, is indebted to the judgment debtor, for the recovery of the debt . . .” The courts will often make this assessment following the filing of a motion to turnover assets and based upon proper conformity with the multiple elements of 735 ILCS 5/21402(c). In fact, the statute even permits the court to “. . . provide for the disposition of any monies in excess of the sum required to pay the judgment creditor’s judgment and costs allowed by the court.” Thus, the statute is aimed at collections from any source, and citation respondents are not afforded many protections other than a showing that the assets in question do not belong to the judgment debtor. Further, during the time that a citation is pending a citation respondent is enjoined from transferring or otherwise disposing of the asset in question until the proceeding is terminated. 735 ILCS 5/2-1402(f). Thus, it behooves counsel to be aware of the citations which are outstanding so as not to unwittingly transfer an asset, thus opening up the citation respondent or a client to additional penalty. Conclusion Citations to discover assets can attach to more than monetary assets. As noted above, a citation can be directed to banks, safety deposit box holders, property, including cars, homes, boats and other tangible assets. Valuation of these goods then becomes an issue which may also require redress from the courts. Citations to discover assets are both a tool and an effective means to collect a judgment. The statute is a replete with appropriate remedies and safeguards. While we, as trial attorneys, think of verdicts, the next step: the collection of judgments, is of vital import to our clients and must be considered as a phase of trial, not simply a post-judgment proceeding. As we all know, time is of the essence in the preparation for trial and the collection of a judgment. The next column will consider the ramifications of transfers of assets following judgment and the Illinois Fraudulent Transfer Act. Appellate Practice Corner By: Brad A. Elward Heyl, Royster, Voelker & Allen Peoria Appellate Motion Practice The most frequent questions I hear raised concerning appellate practice relate to motions. What does a motion for such-and-such look like? How do we ask for more time? What should I attach to my motion? These are all common inquiries. Fortunately, there are few rules governing appellate motions. As a rule of thumb, motions should seek to further or resolve some issue in the appeal. Indeed, the only serious limitation is that the appellate court be capable of granting the type of relief requested. See Supreme Court Rule 366(a). The appellate court can enter any judgment or make any order that “ought to have been given or made.” Whether filed with the supreme court or the appellate court, a specified motion judge hears most motions. As noted below, the supreme court has different rules depending on whether the motion is a single judge or full-court motion. In the supreme court, the justice of the district from which the motion arose handles motions (though motions filed from cases in the First District rotate among the three justices). Motions are granted or denied and are at times taken with the case. However, after hearing the full arguments, an appellate court may nevertheless grant a motion it previously denied. See Hwang v. Tyler, (Continued on next page) About the Author Brad A. Elward is a partner in the Peoria office of Heyl, Royster, Voelker & Allen. He practices in the area of appellate law, with a sub-concentration in workers’ compensation appeals and asbestos-related appeals. He received his undergraduate degree from the University of Illinois, Champaign-Urbana, in 1986 and his law degree from Southern Illinois University School of Law in 1989. Mr. Elward is a member of the Illinois Appellate Lawyers Association, the Illinois State, Peoria County, and American Bar Associations, and a member of the ISBA Workers’ Compensation Section Counsel. 67 IDC Quarterly Appellate Practice Corner (Continued) 253 Ill. App. 3d 43, 625 N.E.2d 243 (1st Dist. 1993). If a motion is taken with the case, the court is simply saying that it is not prepared to decide the motion at that time, but that it will rule on the motion in conjunction with the appellate briefs and argument. Appellate motions frequently handled by the motion or single judge include motions for extensions, motions to strike parts of the brief, and motions relating to the timing or need for oral argument. Where the matters raised by motion relate to the actual issues in the case, or relate to jurisdictional issues, the motion may be given to the panel and taken with the case at oral argument. Motion Procedures Supreme Court Rule 361 outlines the general procedures for appellate motions. In its simplest terms, a motion must state the relief sought and supporting grounds. In this respect, counsel should concisely state what it wants the appellate court to do and why, with citation to legal authority. Although there are no page limitations, long motions do not generally sit well with the appellate court. Memoranda may also be filed, but my experience suggests that a single, comprehensive motion is more appropriate. Rule 361(b) provides that all motions must be accompanied by a proof of service indicating that all parties have been served. If the motion is filed with the supreme court when it is in session, an original and one copy is to be sent to the court in Springfield. Motions to the appellate courts require an original and three copies unless the appeal is to the Appellate Court, Illinois Workers’ Compensation Commission Division, which requires an original and five copies (to reflect the additional justices). Supreme Court Rule 361(b)(3). Where the supreme court is not in session, Rule 361(c) mandates different procedures. Since the court is only in session part of the year, counsel should first call the clerk’s office and verify its present status. Once the “in-session” status is determined, the next question is to decide if the motion is one for the full court or whether it may be decided by a single judge, which in turn determines the method of filing. If the motion is one that may be granted by a single judge, filing is as follows: for cases arising out of the First District, an original and one copy of the motion (with proof of service and a proposed order) must be filed with the justice designated to hear motions at the supreme court clerk’s Chicago office. Responses are filed in the same manner and are due within three (3) days of personal service or within five (5) days of service by mail. Rule 361(c) (1). Single judge motions filed in the remaining districts are to 68 be served on the justice for that district at his or her district office, with an original filed with the clerk in Springfield. The proof of service for the clerk’s motion should indicate the name of the justice served and that a proposed order was filed with the motion. Responses must be filed in Springfield within five (5) days of personal or fax service or ten (10) days of service by mail, with a copy to the named justice. If the supreme court motion requires full court disposi- “If a motion is taken with the case, the court is simply saying that it is not prepared to decide the motion at that time, but that it will rule on the motion in conjunction with the appellate briefs and argument.” tion, the procedures are slightly different. Motions for cases arising out of the First District must be filed as an original and five copies in Chicago, with a copy sent to each justice at his or her district office. Responses are filed in the same manner, and are due within five (5) days of personal or fax service, and ten (10) days of service by mail. Rule 361(c)(2). For cases arising outside the First District, counsel should send an original and one copy to the clerk in Springfield, with service on the individual justices at their personal offices. The response time is the same as for full-court motions filed in First District cases. Types of Motions “Housekeeping” Motions Certain appellate motions can be thought of as “housekeeping” in nature. These include motions for extension, motions relating to the record or report of proceedings, and motions relating to oral argument. Motions seeking an extension of time to file a brief should be filed as soon as possible and should state reasonable grounds for the additional time - other commitments, emergencies, prepaid vacation, etc. Counsel should also indicate if previous extensions have been granted and the reasons for those rulings. Rule 361(f). Filing an af- Second Quarter 2005 fidavit is suggested. Also, if you are asking for the extension because of other pending matters, specifically reference those cases by title, case number, and court, and also note the due date and nature of the commitment. For example: Counsel has other pre-existing appellate commitments in the following cases: Appellant Brief, due June 12, 2005, Milano v. State of Illinois, No. 4-05-1000, Appellate Court, Fourth District; Petition for Leave to Appeal, due June 16, 2005, Hingis v. Sharapova, No. 19225, Supreme Court. Using this format gives your motion more credibility and informs the court of the true nature of your other commitments. If you believe that your opponent will not object, call him and then indicate in your motion that you have spoken with opposing counsel, who has no objection to your motion. You can also label your motion as “Stipulated” or “Agreed,” and note the same in your cover letter. Doing so often results in a quicker order, as the court does not need to wait for an objection. Similar motions relate to the record on appeal. A party may wish to supplement the current record with materials omitted from the circuit court record or obtain an extension of time to file the record or report of proceedings due to a delay in preparation. See Rules 323(e) (reports of proceedings) and 325 (records on appeal). If supplementing the record, include an affidavit of counsel indicating that the documents were part of the circuit court record and considered by the circuit court, but somehow were omitted. In the latter instance, use an affidavit from the court reporter or the circuit clerk to support your motion. Although the rules say that a “reasonable excuse” justifying the extension is needed only when the motion is made after the record or report of proceedings due date, good practice dictates always including a description of the grounds. Examples include: a lengthy multi-week trial, a court reporter backlog, or a voluminous court record. Another housekeeping motion relates to additional or supplemental authority. Such a motion should be used to notify the court of recent decisions that may have been handed down since the filing of the briefs, or to cite a case that was simply overlooked. While the court may frown upon your failure to discover the case in your initial research, justices would nevertheless prefer to make their decision with the benefit of accurate law. In any event, copies of the additional authority, especially if a new decision, should be attached to the motion. Most of my motions to supplement simply provide the additional authority, note that it was recently handed down, and indicate to which issue the case relates. Some attorneys will provide a more detailed argument, but that might provoke an objection or an attempt to file a written argument by your opponent. Counsel may also file motions concerning oral argument. The most common motion is one that seeks additional time (most appellate courts limit argument time to 15 or 20 minutes) pursuant to Rule 352(b), or seeks to distribute time among multiple attorneys (only two attorneys may argue one side of a case) pursuant to Rule 352(d). Such motions should reference the rule and should specifically ask for the desired time distribution. Note that a simple request for a divided argument may not result in additional time without a specific request by the movant. Moreover, the motion should be filed well in advance of the argument date. If counsel is going to be gone during a portion of a month when he or she believes that oral argument might be set, counsel should simply forward the clerk a letter indicating the dates he will be gone, and then copy opposing counsel. Other motions include those seeking substitution of counsel, motions for leave to obtain additional pages for the brief, motions to substitute a party (Rule 366(a)(2)), motions to dismiss due to settlement, and motions for publication (Rule 23(f)). Motions to expedite an appeal are governed by Rule 311 and should be filed immediately after or in conjunction with the filing of the docketing statement and should be supported by an affidavit and good cause. Substantive Motions Substantive motions are rare and in many cases are represented by motions to dismiss for lack of jurisdiction. For these, a supporting record must be provided. The courts generally recommend raising dispositive jurisdictional issues as soon as possible so that the issues may be addressed before the parties incur the time and expense of preparing a brief. In appropriate cases, a motion to stay the briefing schedule pending disposition of the motion may accompany such a request. If the motion to dismiss is denied, you may wish to continue to preserve the issue by raising it in your brief. Emergency Motions A few instances might arise justifying an emergency motion. While there is no set procedure in Illinois for emergency motions, all districts recognize that in certain cases, emergencies arise that requires immediate attention. Where possible, call the clerk of the court to see how the emergency motion should be handled. Motions for a stay of an underlying proceeding sometimes fall within the emergency category. Rule (Continued on next page) 69 IDC Quarterly Appellate Practice Corner (Continued) 305 governs motions for stays and requires that the movant show either that a motion was made and denied by the circuit court, or that such a motion is impracticable. In any event, emergency motions should be hand-delivered or filed with overnight mail and the cover letter should plainly indicate that the enclosed matters are being presented on an emergency basis. Again, appropriate supporting record documents must be filed with the motion. If you are asking the court for emergency relief, give it the courtesy of providing it with all materials necessary to address the issues. What to Attach to Motions In addition to an affidavit, where required, and a proposed order stated in the alternative, a movant should also include with the motion copies of all relevant documents necessary for the appellate court to rule on the motion. Supreme Court Rule 328 states that if the record on appeal has not yet been filed, the movant must provide those portions of the record that will aid the court in ruling on the motion. It is also helpful to include as an attachment a copy of the underlying order and the notice of appeal. Examples of the documents for a supporting record include copies of relevant correspondences, lower court orders, or other pleadings. In the case of a motion seeking substantive relief, relevant documents from the record should be attached, with the record citation mark clearly visible. Counsel’s affidavit should also indicate that the documents attached to the motion represent true and accurate copies of those found in the record on appeal. See Rule 328. Facts that are not in the record must always be supported by an affidavit. Rule 361(a). Responses to Motions As a general rule, responses should only be filed to substantive motions. Motions requesting additional pages for a brief, extensions of time, and other routine matters should be responded to only when some overriding need exists, such as a party’s third motion for extension of time. Also, if you chose to respond, it sometimes helps to call the clerk’s office and let them know that a response is forthcoming. In the unusual event that the court rules prior to receipt of your response, you can file a motion to reconsider. A similar call informing the clerk you are not opposing the motion is also welcomed. The courts do not allow replies to responses nor oral argument, except by permission of the court. 70 Commercial Law By: James K. Borcia Tressler, Soderstrom, Maloney & Priess Chicago First District Refuses to Allow “Chinese Wall” as a Defense to Enforcement of a Restrictive Covenant Appelbaum v. Appelbaum, No. 1-04-2627 (1st Dist. 2005). The First District Appellate Court was recently faced with the issue of whether the “Chinese Wall” concept normally pertaining to conflicts of interest in professional settings applies in the context of enforcement of a restrictive covenant. The term “Chinese Wall” describes a strategy used by organizations to prevent the flow of confidential information from one person to another. The First District refused to allow a “Chinese Wall” defense to a restrictive covenant enforcement claim. Appelbaum involved a dispute between members of the Appelbaum family’s frozen shrimp business, Penguin Frozen Foods, Inc. (“Penguin”). William Appelbaum was a brother of the Appelbaum family and a Penguin employee. J.W. Appelbaum, William’s cousin, left Penguin and formed a new company with William called Worldwide Shrimp (“Worldwide”). J.W., who was Penguin’s top salesperson, prior to leaving Penguin signed a restrictive post-employment covenant with Penguin that included a non-solicitation clause. About the Author James K. Borcia is a partner with the Chicago firm of Tressler, Soderstrom, Maloney & Priess, and is active in the firm’s litigation practice with an emphasis on commercial and complex litigation. He was admitted to the bar in 1989 after he received his J.D. from Chicago-Kent College of Law. Mr. Borcia is a member of the Chicago and Illinois State Bar Associations, as well as the IDC and DRI. Second Quarter 2005 Penguin moved for a preliminary injunction that sought to preclude J.W. from soliciting any of the customers serviced by J.W. while he was employed by Penguin. At the hearing on Penguin’s motion, J.W. testified that after leaving Penguin, he had not contacted any of the customers on Penguin’s customer list and that he had told several of the customers he could not sell to them due to the restrictive covenant. Worldwide had solicited business from a number of Penguin’s customers. J.W. claimed that William was the one who had contacted the customers and suppliers and that William was not bound by the restrictive covenant. William testified that he retreated to a separate office when talking to Penguin’s customers and that J.W. was not involved in those conversations. The trial court granted Penguin’s motion for preliminary injunction, finding that Penguin had a protectable interest in its suppliers and customers. The First District reversed, finding that there was insufficient evidence to show that Penguin had near-permanent relationships with its suppliers and customers. The court noted the service nature of Penguin’s business, which was selling shrimp, a non-unique product. The court noted that service type businesses such as Penguin are not the type that can easily show near-permanent relationships in order to establish the right to injunctive relief. The court found that there was insufficient evidence to show the frequency of customers’ orders with Penguin, whether the customers used other suppliers in addition to Penguin or whether a determination of the customers’ identity was time-consuming, expensive or difficult for Penguin when it attempted to acquire new customers. The court then addressed Penguin’s attempt to enjoin William as well as J.W. William, unlike J.W., had not signed a restrictive covenant with Penguin. In response to this claim, William and J.W. contended that they implemented a “Chinese Wall” to prevent J.W. from assisting William to solicit the customers and suppliers that J.W. could not directly solicit. The appellate court found that William and J.W.’s “Chinese Wall” was inadequate to protect Penguin’s interests. In concluding that the trial court’s finding that Worldwide’s “Chinese Wall” did not protect William from being enjoined was not against the evidence, the court cited the following factors: (1) the small size of Worldwide; (2) J.W.’s position in the company and the likelihood of contact between J.W. and William; (3) the fact that J.W. played several important roles at Worldwide as its president, treasurer and half of its sales team at the time Penguin moved for preliminary injunction; (4) Worldwide’s small size, which made it unlikely that J.W. and William could manage the business without sharing information about its clientele; (5)the fact that J.W. and William ran Worldwide together; (6) the fact that due to J.W. and William’s positions in Worldwide, they lacked any mechanism to enforce the “Chinese Wall,” such as a person with more authority to ensure they did not share information about J.W.’s former customers; (7) the fact that J.W. received financial benefit from any sales William secured from Penguin’s customers; (8) the fact that Worldwide was a closely held corporation; and (9) the fact that Worldwide’s only other shareholder besides J.W. and William were William’s two children. Despite the fact that there was no proof of any influence by J.W. over William on his solicitations to the customers, the court was willing to extend the covenant to the activities of the new company, Worldwide. This ruling will be beneficial to those who attempt to enforce restrictive covenants against employees who leave to go to small companies, where the ex-employee claims that he had no direct involvement with the new company’s solicitation. “The court found that there was insufficient evidence to show the frequency of customers’ orders with Penguin, whether the customers used other suppliers in addition to Penguin or whether a determination of the customers’ identity was time-consuming, expensive or difficult for Penguin when it attempted to acquire new customers.” 71 IDC Quarterly Alternative Dispute Resolution By: John L. Morel John L. Morel, P.C. Bloomington Attorney, Retired Judge, Non-Attorney: Whom Should a Lawyer Hire as a Mediator? Some think a retired judge is preferable as a mediator because the weight of the robe brings the parties together, which is particularly true with stubborn clients. Clients usually recognize the vast experience most judges have in presiding over any variety of cases and the settlement process, and will be impressed with such a mediator. In litigated cases a judge’s opinion seems to carry more weight and his or her presence and experience can make a difference. Others believe judges are not good mediators because they are used to getting by on the sheer power of their position. Unless judges are progressive and can retool their thinking, they may not do as well as a good attorney/mediator. Good mediators don’t preside. Others believe judges are not as effective because many of them have used a bullying technique that is more effective in mandatory settlement conferences, and which is counterproductive in a mediation. Lawyers and clients alike prefer to be persuaded, listened to and feel that they have been heard. Therefore, it can be argued that attorney mediators are the best persuaders, as they have become good listeners. Perhaps it can be said that it comes down to style, demeanor and temperament. Judges’ professional experience has been to demand certain behavior actions or activities. To engage their clients, however, lawyers approach mediation from a “counseling” perspective. Attorney mediators don’t view themselves as ones who can demand a particular settlement, such as judges are used to doing. Lawyers, on the other hand, will seemingly endeavor to develop engaging manners and not be intimidating or demanding in the arbitration. No judge likes to hear that practicing attorney mediators have a style, demeanor and temperament that develops in the general practice. Judges counsel, which they claim is like mediating. They don’t demand or insist. Attorneys with knowledge of an area of the law more likely than not will 72 grasp the nuances of the issues and be less intimidating than retired judges. Non-attorneys? I have never used a non-attorney as a mediator, nor have I participated in any mediations where the mediator is a non-attorney. Subtle legal issues often are involved, and a resolution of those legal issues more likely than not would be beyond the training, experience or understanding of the non-attorney. They may be good mediators in certain employment cases, or cases generally, whether the issues are less legal and more human relations. In these instances, human resource personnel, psychologists and the like can be effective. There may be cases where there are multiple technical issues, non-legal technical issues, perhaps with a product defect. There may be expertise in other areas where knowledge and experience in the legal field brings very little to the table. Arguably, lawyers are better mediators because mediation is about communication and persuasion. Architects, accountants and similar professionals are not about communication and persuasion to the same extent. Mediating and the caucuses with the mediator take place with the lawyer and his or her client to indicate openly that litigation or further litigation is not financially feasible. Therefore, the mediation must result in a settlement. As we know, a trial, even with the strongest case, carries with it an element of unpredictability, perhaps not liability, but in the award. One aspect of mediation that causes clients to be uncomfortable occurs when counsel for each side are involved in casual banter. Without being rude or impolite, don’t give the appearance to your client that you are “buddies” with opposing counsel, even if away from the mediation you are. Avoid fraternizing with the enemy during a mediation. Try not to say “no” even in the face of an unacceptable offer. Make a counterproposal or interject an additional fact of which, to your knowledge, opposing counsel and their About the Author John L. Morel concentrates his practice in civil trial and appellate practice, as well as insurance law, at his Bloomington firm of John L. Morel, P.C. He received his B.A. from Western Illinois University and his J.D. from the University of Illinois. Mr. Morel is a member of the McLean County, Illinois State, and American Bar Associations. He is also a member of the IDC, FDCC, DRI, National Association of College and University Attorneys and the Illinois Appellate Lawyers Association. Mr. Morel sits on the Board of Directors for the IDC. Second Quarter 2005 client are not aware. Although doing so seems like tipping your hat or hand, losing the benefit of surprise at trial if you do not settle, attorneys must attempt to resolve the dispute, to mediate to settlement. Don’t be intractable. Don’t hurry the process and don’t exert pressure on the client to settle. Help your client think through the pros and cons of accepting each offer. Allow the client ample time to reflect. Good mediators will take things slowly, which by far is the best approach. Often the negotiations result in a stalemate. Keep the matter open. Buy some time. Agree to adjourn or recess from the mediation for the time being and to schedule a time to reconvene after each party has had the opportunity to reflect on the latest offer/demand. The passing of time or a change in circumstances may result in a different approach. Don’t take the position of “settlement is today and if it isn’t we are going on to trial.” Sometimes it is more fruitful to schedule several half days, rather than one full day. People get tired and this can lead to crankiness. Take your time. Patience should be the precursor. The Defense Philosophy By: Willis R. Tribler Tribler Orpett & Meyer, P.C. Chicago Lessons From Basketball I delayed the submission of this column for a week in the hope that I could rejoice and analogize from the first national championship for the University of Illinois basketball team. Alas, it was not to be. Illinois was defeated in the championship game by North Carolina. I was going to point out that Illinois’s ultimate victory after 100 years of competition should give hope to people who favor tort reform, merit selection of judges, the Cubs and the White Sox. Even though that cannot be done, the Illinois season provides two valuable lessons for trial lawyers. The first is to start strong. Illinois fell behind by 15 points to Arizona and two games later by 15 points to North Carolina. It was able to come back to tie Arizona and go on to win. It came back to tie North Carolina but could not hold on and did not win. The lesson is that it is important to stay close. A team that is close still has a chance, but once you get down by 15 points, it is difficult to recover. Thus, the opening statement is important. A lawyer must make a solid, fact based opening statement so that the jurors will understand what he or she hopes to prove. It is also important to present your evidence as early as possible. This is not easy, as motions for directed verdict can be lost because the defense introduced evidence that made a prima facie case for the plaintiff, but it is very important to keep your story in front of the jury. The second lesson is found in the Arizona game that was played the week before the championship game. Throughout its season, Illinois had never used a strong full-court press. However, for the several weeks before the tournament, Coach Bruce Weber had practiced the full court press in case it was needed. It turned out to be needed when Arizona took a 15-point lead. I cannot say that Arizona never considered the possibility of such a press, but it did not seem to be ready for one, and it suffered as a result. Lawyers should not be predictable. You must study the tendencies of the other side and plan strategy according to those tendencies. However, you must not lock into a strategy but must remain flexible and try to predict what the other side might do to throw a monkey wrench into your plans. You must prepare for such deviations. For instance, you cannot assume that the plaintiff will call the defendant as an adverse witness or that the other lawyer will make your case by crossexamining your client. You must put yourself into the shoes of the other lawyer and try to determine what that lawyer could do to upset your applecart. You must then prepare for that tactic. Likewise, you must not allow yourself to be too predictable. Meanwhile, we Illinois stalwarts must keep the faith. There is still hope for Illinois, tort reform, merit selection of judges, the Cubs and the White Sox. About the Author Willis R. Tribler is a director of the firm of Tribler Orpett & Meyer, P.C. in Chicago. He is a graduate of Bradley University and the University of Illinois College of Law, and served as President of the IDC in 1984-1985. 73 IDC Quarterly Amicus Committee Report By: Michael L. Resis O’Hagan, Smith & Amundsen, L.L.C. Chicago Since we last reported, the Illinois Supreme Court has handed down Blue v. Environmental Engineering, Inc., Docket No. 98034, in which the IDC participated as amicus. There, the issues before the Illinois Supreme Court were whether (1) the risk-utility or risk-benefit analysis normally used in strict products liability cases is applicable to defective product design cases involving only a negligence theory of recovery; and (2) a special interrogatory, asking if the danger posed by the product was open and obvious, was properly read to the jury. A divided court (one justice recused himself, there were two concurrences and a partial dissenting opinion) answered both questions in the negative, holding that the riskutility analysis was not applicable in a negligent design case and that the special interrogatory on the open and obvious defense was not proper. First, the court held that the risk-benefit analysis normally used in strict products liability cases is not applicable to defective product design cases involving only a negligence theory of recovery. To establish a negligence claim for a defective design of a product, a plaintiff must prove either (1) the defendant deviated from the standard of care that other manufacturers in the industry followed at the time the product was designed, or (2) that the defendant knew or should have known, in the exercise of ordinary care, that the product was unreasonably dangerous and the defendant failed to warn of its dangerous propensity. In contrast to the focus, under a negligence theory, on the standard of care established by others in the industry, the strict liability theory focuses on the product and only requires proof that the benefits of the challenged design do not outweigh the risk of danger inherent in such designs, that the alternative design would have prevented the injury, and that the alternative design was feasible in cost practicality and technology. Here, the appellate court erroneously held that the risk-utility test was applicable in a negligence case, and further erred in holding that once the plaintiff presents proof of a defective design the burden shifts to the defendant who must prove that the benefits of the design outweigh the risk of danger inherent in such designs. Instead, the court made 74 clear that the burden of proof never shifts to the defendant and remains with the plaintiff throughout his case. The court then determined that the plaintiff may never have proven his case because his expert did not testify to an industry standard or that the standard was breached. However, as the defendant did not ask for judgment notwithstanding the verdict on this basis, the court left undisturbed the jury verdict for the plaintiff. Next, the court considered whether the open and obvious doctrine was applicable. Generally, the doctrine is not an absolute bar in either strict liability design or negligent design cases. However, it may be part of the duty analysis in negligence cases. If a defendant believes that an open and obvious danger of the product is a complete bar to recovery, the defendant should raise the issue in a motion for summary judgment before trial. The court determined, however, that the special interrogatory was not the appropriate vehicle to raise the issue of duty when it was not a question for the jury to decide. One important issue deserves mention as it relates to this case. Because only three members of the court signed the opinion, it cannot be considered binding authority. David B. Mueller of Cassidy & Mueller prepared the amicus brief in support of the defendant-appellant. During its January 2005 term, the Illinois Supreme Court accepted the defendant’s petition for leave to appeal in TriG, Inc. v. Burke, Bosselman & Weaver, Docket No. 99584. There, the appellate court (353 Ill. App. 3d 197, 817 N.E.2d 1230 (2d Dist. 2004)), with one justice dissenting, held that a law firm could be held liable for punitive damages lost as a result of legal malpractice. Thomas P. McGarry of Hinshaw & Culbertson has written an amicus brief in support of the defendant which the supreme court granted leave to file on March 15, 2005. About the Author Michael L. Resis is a founding partner and chairman of O’Hagan, Smith & Amundsen’s appellate department. He concentrates his practice in the areas of appellate, insurance coverage and toxic, environmental and mass torts. He has practiced law in Chicago for 20 years and handled more than 400 appeals. Mr. Resis has represented government, business and professional organizations as amicus curiae before the Illinois Supreme Court and the Illinois Appellate Court. He received his B.A. degree, magna cum laude, from the University of Illinois at Champaign-Urbana in 1978, and a J.D. degree from the University of Illinois at Champaign-Urbana in 1981. Mr. Resis currently serves on the Board of Directors for IDC. Second Quarter 2005 On behalf of the IDC, the Amicus Committee thanks the attorneys who took the time from their other commitments to prepare the amicus briefs for filing in these cases. As a reminder for future submissions, the amicus curiae committee members are: First Judicial District John J. Piegore Sanchez & Daniels 333 W. Wacker Drive, Suite 500 Chicago, Illinois 60606 (312) 641-1555 Second Judicial District James DeAno Norton, Mancini, Argentati, Weiler & DeAno 109 N. Hale Street Wheaton, Illinois 60187 (312) 668-9440 Third Judicial District Karen L. Kendall Heyl, Royster, Voelker & Allen 124 SW Adams Street Bank One Building, Suite 600 Peoria, Illinois 61602 (309) 676-0400 Fourth Judicial District Robert W. Neirynck Costigan & Wolrab, P.C. 308 E. Washington Street, P.O. Box 3127 Bloomington, Illinois 61701 (309) 828-4310 Fifth Judicial District Mr. Stephen C. Mudge Reed, Armstrong, Gorman, Coffey, Thompson, Gilbert & Mudge 101 North Main Street, P.O. Box 368 Edwardsville, Illinois 62025-0368 While we cannot file a brief in every case in which we are asked, we encourage your participation in making the views of our members known to the reviewing courts on the legal issues that affect us. We need your input and your support. If you are interested in writing an amicus brief or submitting a case for review by the committee, please contact any of us. 75 IDC Quarterly W elcome ... New IDC Members Scott J. Brown Kathleen Marie Nester Cassiday Schade & Gloor, LLP, Chicago Burroughs, Hepler, Broom, MacDonald, Sponsored by: David Bennett Hebrank & True, LLP, Edwardsville Sponsored by: Steve Kaufmann Timothy Liam Epstein O’Hagan, Smith & Amundsen, L.L.C., Chicago Peter Ryndak Sponsored by: Glen Amundsen Johnson & Bell, Ltd., Chicago Sponsored by: William McVisk Robert J. Golden Dowd & Dowd, Ltd., Chicago Carrie Anne Von Hoff Sponsored by: David Bennett O’Hagan, Smith & Amundsen, Chicago Sponsored by: Richard Valentino Kenya Jenkins Hinshaw & Culbertson, Rockford Matthew Dean Walker Sponsored by: David Levitt Litchfield Cavo, Chicago Sponsored by: Daniel G. Litchfield Edward M. Kay Clausen Miller P.C., Chicago John Michael Ward Sponsored by: David R. Ganfield, II Burroughs, Hepler, Broom, MacDonald, Hebrank & True, LLP, Edwardsville Brandon J. Korft Cassiday, Schade & Gloor, LLP, Chicago Sponsored by: Richard Valentino Warren J. Marwedel Marwedel, Minichello & Reeb, P.C., Chicago Sponsored by: David Bennett 76 Sponsored by: Jeff Hebrank IDC MONOGRAPH — Second Quarter 2005 THE IDC MONOGRAPH: THE CLASS ACTION FAIRNESS ACT of 2005— WHAT IS IT ALL ABOUT? Bradley C. Nahrstadt Brian Y. Boyd Williams Montgomery & John Ltd. Chicago, Illinois M-1 IDC Quarterly Vol. 15 No. 2 When George W. Bush ran for re-election in 2004, he promised his supporters, and the country, that if re-elected he would make litigation reform a top priority. Shortly after the 2004 election, and just before the beginning of his second term, Senate Republicans delivered on the president’s promise and introduced legislation known as the Class Action Fairness Act of 2005 (S. 5). The bill, which was sponsored by Senator Chuck Grassley, R-IA, was placed on the fast track and passed in the Senate on February 10, 2005. The House of Representatives passed the same legislation on February 17, 2005 by an overwhelming majority. President Bush signed the Class Action Fairness Act of 2005 into law on February 18, 2005.1 Where did the perceived need for this legislation come from? What impact will it have on the future of class action litigation in this country? What do the opponents of the Act contend are the problems with this legislation? This article will provide a short history of the congressional efforts to pass class action litigation reform, highlight the salient provisions of the Act and analyze the impact of the Act on future class action litigation. Action Fairness Act. On January 25, 2005, Senator Charles Grassley, R-IA, introduced the Class Action Fairness Act of 2005.8 Republican senators defeated all attempts by the Democrats to amend the bill and it passed the Senate by a vote of 72 to 26. The House of Representatives, which had passed a version of the Class Action Fairness Act in 2002 and 2003, promptly passed the Class Action Fairness of Act of 2005 by a vote of 279 to 149. One day later, in a high-profile ceremony, President Bush signed the Class Action Fairness Act of 2005 into law with a sweep of his pen.9 The History of the Class Action Fairness Act The Class Action Fairness Act of 2005 greatly expands federal diversity jurisdiction, in that it allows the “amount in controversy” requirement to be satisfied by an aggregate of class damages. According to the Act, the district courts shall have original jurisdiction over any civil action in which the matter in controversy exceeds $5,000,000, exclusive of inter- In 1995, Congress passed the Private Securities Litigation Reform Act, hereinafter “PSLRA”2 in an effort to stem the tide of corporate securities fraud class actions. According to one commentator, the PSLRA appeased some of the more vocal pro-business lobbyists, but it did little to silence the harshest critics of the class action system, including the National Association of Manufacturers and the U.S. Chamber of Commerce.3 Those entities, and others, wanted reform for all types of class action cases, not just securities suits.4 Against this backdrop, and a national outcry over the proliferation of class action lawsuits in state courts around the country, in 1998 Representative Henry Hyde, R-IL, introduced the first of many versions of what has been repeatedly labeled the Class Action Fairness Act.5 Representative Hyde’s measure passed the House of Representatives, but the Senate never voted on it. In 2003, the House again passed the measure, but the supporters of the bill in the Senate failed by one vote to get the 60 votes necessary to invoke cloture and limit debate on the bill.6 In 2004, although the House of Representatives again passed a version of the Class Action Fairness Act, the supporters of the Act in the Senate again failed to get the votes necessary for cloture, and managed to obtain the support of only 44 senators.7 In early 2005, Senate Republicans decided to try to take advantage of an increase in the number of Republican senators and set about passing an unadulterated version of the Class M-2 The Important Provisions of the Class Action Fairness Act of 2005 The Class Action Fairness Act of 2005 contains several provisions designed to ensure that large class action litigation is resolved in a federal forum. The Act expands federal diversity jurisdiction, adopts special rules for the removal and remand of class actions, limits attorneys fees for class action work, and imposes a requirement that governmental authorities be notified of certain proposed class settlements. Federal Jurisdiction Over Large Class Actions About the Authors Bradley C. Nahrstadt is a partner with the Chicago firm of Williams Montgomery & John Ltd. His practice is devoted to litigation, including the defense of product liability, medical malpractice and insurance bad faith cases in state and federal courts. Mr. Nahrstadt received his B.A. from Monmouth College, summa cum laude, in 1989, and his J.D. from the University of Illinois College of Law, cum laude, in 1992. He is a member of the Illinois State Bar Association, IDC and DRI. Brian Y. Boyd is an associate with the Chicago firm of Williams Montgomery & John Ltd. He is a 2002 graduate of Loyola University Chicago School of Law and a 1997 graduate of Davidson College. His practice focuses on commercial litigation, including intellectual property matters. He also practices in director and officer defense and professional malpractice. IDC MONOGRAPH — Second Quarter 2005 est and costs,10 and the claims of the individual class members shall be aggregated to determine whether the matter in controversy exceeds $5,000,000.11 If this monetary threshold is satisfied, the case can be filed in federal court, or removed to federal court, so long as the citizenship of at least one member of the plaintiff class is diverse from at least one defendant. If one-third or fewer of the proposed class members are citizens of the original forum state, the federal court must retain jurisdiction and hear the case. Under the Act, the federal courts are given discretion to accept or decline jurisdiction over a class action in which greater than one-third but less than two-thirds of the members of all proposed plaintiff classes and the primary defendants are citizens of the original forum state. In these cases, the Act sets forth six factors to be considered by the courts when deciding whether to exercise jurisdiction: (1) whether the claims involve matters of national or interstate interest; (2) whether the claims will be governed by the laws of the state in which the action was originally filed or by the laws of other states; (3) whether the action has been pled in a manner that seeks to avoid federal jurisdiction; (4) whether the action was brought in a forum with a distinct nexus with the class members, the alleged harm or the defendants; (5) whether the number of plaintiffs from the state in which the action was originally filed in the aggregate is substantially larger than the number of plaintiffs from any other state and the citizenship of the other members of the proposed class is dispersed among a substantial number of states; and (6) whether, during the 3-year period preceding the filing of that class action, one or more other class actions asserting the same or similar claims on behalf of the same or other persons have been filed.12 According to the Act, the federal courts must decline to exercise jurisdiction over a class action in which: more than two-thirds of the members of all proposed plaintiff classes are citizens of the state in which the action was originally filed; at least one defendant is a defendant from whom significant relief is sought, whose conduct forms a significant basis for the claims asserted, and who is a citizen of the state in which the action was originally filed; the principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the state where the action was originally filed; and, during the three-year period preceding the filing of that class action, no other class action was filed which asserted the same or similar factual allegations against any of the same defendants.13 In addition, under the Act, a district court shall decline to exercise jurisdiction over a class action in which two-thirds or more of the plaintiffs and the primary defendants are citizens of the state in which the action was originally filed.14 The Class Action Fairness Act of 2005 does not apply to any class action in which the primary defendants are states, state officials, or other governmental entities against whom the district court may be foreclosed from ordering relief, or to any class action in which the number of members of the proposed plaintiff class is less than 100. The Act also does not apply to any class action that solely involves a claim concerning a covered security as that term is defined under Section 16(f)(3) of the Securities Act of 1933 and Section 28(f)(5) (E) of the Securities Exchange Act of 1934, that relates to the internal affairs or governance of a corporation or other form of business enterprise and that arises under or by virtue of the laws of the state in which such business or corporation is incorporated or organized, or that relates to the rights, duties and obligations relating to or created by or pursuant to any security as defined under Section 2(a)(1) of the Securities Act of 1933.15 Removal Procedures The Class Action Fairness Act drastically expands the ability of a defendant to remove a class action from state court to federal court. The Act provides that any defendant may remove an eligible class action to federal court without the consent of the other defendants. The Act further provides that the one year limitation period that typically applies to removals does not apply to the removal of class actions. In addition, in a radical departure from prior law, the Act provides that a case filed against a defendant in its home state can be removed to federal court.16 The Class Action Fairness Act also provides for expedited appellate review of district court decisions granting or denying remand. Under certain provisions of the Act, a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the state court from which it was removed, as long as the application is made to the court of appeals not less than seven days after the entry of the order by the district court. If the court of appeals accepts such an appeal, the court is required to complete all action, to judgment, on the appeal, not later M-3 IDC Quarterly Vol. 15 No. 2 than 60 days after the date on which the appeal was granted (unless an extension is allowed under the Act).17 (1) a copy of the complaint and any materials filed with the complaint; Settlements and Attorneys’ Fees (2) notice of any scheduled judicial hearing in the class action; One of the main provisions of the Class Action Fairness Act is designed to eliminate a perceived abuse of the class action claim, that of disproportionate awards of attorneys’ fees while class members receive coupons or other awards of little or no value.18 Under the Act, if a proposed settlement in a class action provides for a recovery of coupons to a class member, the portion of any attorney’s fee award to class counsel that is attributable to the award of the coupons shall be based on the value to the class members of the coupons that are redeemed. The Act further provides that if a proposed settlement in a class action allows for a recovery of coupons to class members, and a portion of the recovery of the coupons is not used to determine the attorney’s fee to be paid to class counsel, any attorney’s fee award, which must be approved by the court, is to be based upon the amount of time class counsel reasonably expended working on the matter.19 In a proposed settlement under which class members would be awarded coupons, the court may approve the proposed settlement only after a hearing to determine whether, and making a written finding that, the settlement is fair, reasonable and adequate for class members. The court, in its discretion, may also require that a proposed settlement agreement provide for the distribution of a portion of the value of unclaimed coupons to one or more charitable or governmental organizations, as agreed to by the parties.20 The Act further provides that a court may approve a proposed settlement in which any class member is required to pay sums to class counsel that would result in a net loss to the class member only if the court makes a written finding that non-monetary benefits to the class member substantially outweighs the monetary loss.21 Moreover, the Act states that a court may not approve a proposed settlement that provides for the payment of greater sums to some class members based solely on the fact that the class members who are to receive the higher payments are located in closer geographic proximity to the court. Notification of Class Action Settlements According to the Act, no later than 10 days after a proposed settlement of a class action is filed in court, each defendant that participates in the proposed settlement must serve upon the appropriate state official of each state in which a class member resides, and the appropriate federal official a notice of the proposed settlement.22 The notice of the proposed settlement must contain: M-4 (3) any proposed or final notification to class members of (a) the members’ rights to request exclusion from the class action or, if no right to request exclusion exists, a statement that no such right exists and (b) a proposed settlement of a class action; (4) any proposed or final class action settlement; (5) any settlement or other agreement contemporaneously made between class counsel and counsel for the defendants; (6) any final judgment or notice of dismissal; (7) if feasible, the names of three class members who reside in each state and the estimated proportionate share of the claims of such members to the entire settlement to that state’s appropriate state official or, if that is not possible, a reasonable estimate of the number of class members residing in each state and the estimated proportionate share of the claims of such members to the entire settlement; and (8) any written judicial opinion relating to the materials described under sub-paragraphs (3) through (6).23 The court cannot approve a proposed settlement until 90 days after such notification. If proper notification to the officials is not made, the settlement is not binding. These provisions, according to the proponents of the Act, will serve as a check on the backroom bargaining in settlement negotiations and will help assure the validity of these agreements. One final point deserves mention. The Class Action Fairness Act of 2005 applies to any civil action commenced on or after the date of enactment of the Act (in this case, February 18, 2005.)24 Criticisms of the Act The most common criticism of the Class Action Fairness Act of 2005 is that plaintiffs will suffer ponderous delays in the administration of justice from the “overburdened” federal court system. In other words, opponents argue, “justice delayed is justice denied.”25 While it is true that many federal courts have substantial backlogs on their dockets, and many unfilled vacancies exist in the judiciary, there is no evidence that cases in state courts move more quickly.26 The median time for final disposition of a civil claim filed in federal court IDC MONOGRAPH — Second Quarter 2005 is 9.3 months, and the median time to trial in a civil matter in federal court is 22.5 months.27 The number of civil cases pending in federal court has declined over the past several years.28 Since 1984, filings in the state trial courts of general jurisdiction have increased 30 percent, compared to a four percent increase in filings in the federal courts.29 By way of comparison, a new state court judge typically is assigned over three times the number of cases that are assigned to a new federal court judge. In many jurisdictions, federal courts are known to dispose of cases more expeditiously than the corresponding state courts.30 Based on the foregoing, it does not appear that the Act will delay resolution of class action lawsuits by moving them to federal court. In fact, one proponent of the Act has argued that the Act will actually increase the judicial efficiency of the handling of class actions.31 According to this proponent, federal courts “The median time for final disposition of a civil claim filed in federal court is 9.3 months, and the median time to trial in a civil matter in federal court is 22.5 months.” can coordinate a greater percentage of duplicative class actions through multidistrict litigation procedures. In addition, federal courts generally have more resources to deal with large class actions, including multiple law clerks on staff and the ability to delegate some or all aspects of class action cases to magistrate judges or special masters (personnel that are generally not available to state court judges). All in all, federal court judges seem to be in a better position to timely and economically handle class action litigation.32 An even greater concern to those who opposed the Class Action Fairness Act of 2005 is whether the plaintiffs will have their day in court. Many contend that strict class requirements under the new federal law make class action lawsuits in federal court more difficult, if not impossible, to maintain.33 Among other things, the critics of the Act argue that district court judges are less inclined to apply a particular state’s substantive law in a case where plaintiffs come from all across the country.34 They further contend that members of a class action that is removed to federal court and then dismissed based on conflicts of substantive law will be left at a judicial dead end with no court willing to hear their grievances. These arguments ignore several exceptions built into the act, as discussed above. Thus, when two-thirds or more of the proposed plaintiffs in a class action are residents of a given state, a class action brought in that state is exempt from federal removal. The plaintiffs still control the scope of their class and where they choose to file their lawsuit. The plaintiffs in these situations, from any state, can always institute a class action lawsuit in their respective state without fear of removal. Some articles, and many of the opponents criticizing the Class Action Fairness Act, use the popularized Erin Brockovich story as an example of class action justice that would be hindered or thwarted by the Act.35 In fact, cases like Anderson v. Pacific Gas & Electric36 (upon which the Brockovich story is based) are classic examples of class action lawsuits which would be unaffected by the act. In that case, Pacific Gas & Electric was accused of polluting water in a small California town causing serious health consequences to nearby residents. All or virtually all of the plaintiffs were residents of the small California town affected by the pollution. Pacific Gas & Electric was also a California resident. Therefore, even the less strict diversity requirements under the Act would not have allowed the case to be removed to federal court.37 Indeed, a recent study conducted by two lawyers in Washington, D.C. reveals that the fear of wholesale removal of class actions from state courts to federal courts appears to be misguided. John Beisner and Jessica Miller examined all class actions for which there were reported decisions on the Lexis or Westlaw legal databases between January 1, 1997 and June 30, 2003 in the state courts of Connecticut, Delaware, Maine, New York, Massachusetts and Rhode Island. They also examined the class action lawsuits that had been filed in Madison County, Illinois between 1998 and 2001. According to Beisner and Miller, the majority of the class action lawsuits would have remained in their respective states’ courts under the Class Action Fairness Act.38 However, 86% of the class actions filed in Madison County would have been removed to federal court.39 This study demonstrates that in those jurisdictions where the plaintiffs’ lawyers take advantage of favorable courts and jurists to bring nationwide class actions, the Class Action Fairness Act will be invoked to “level the playing field.” In those instances where the plaintiffs’ attorneys limit their classes to citizens of the state in which the action is brought, there appears to be little chance that the cases will be removed to federal court under the Act. Other opponents of the Act have argued that it will eliminate M-5 IDC Quarterly Vol. 15 No. 2 the ability of ordinary consumers to keep corporate America from engaging in deceptive practices. These opponents argue that coupon settlements serve a valid purpose in that they hold corporations responsible for illegal acts, and any attempt to put controls on soft judgments or coupon awards will hinder the policing of big business. However, these arguments ignore the fact that in recent years, there has been a virtual explosion in the number of cases in which the plaintiffs receive little or nothing of value while the plaintiffs’ lawyers have received millions of dollars in fees. In many of these cases the plaintiffs themselves were forced, after receiving coupons or other non-monetary “benefits,” to come up with money to pay their attorneys. In one example, the plaintiffs’ attorneys were paid $22 million in a case where the plaintiffs received a $50.00 rebate on future purchases.40 In another case, involving late fees charged by Blockbuster, plaintiffs were awarded coupons of $1 off their next rental, while plaintiffs’ attorneys were awarded $9.25 million.41 Experts estimate that as few as 20% of the class plaintiffs would ever actually use their $1 coupons.42 Some, like Senator Joseph Biden of Delaware, have attempted to justify the practice of such coupon settlements.43 In a 1993 case involving major airlines accused of price fixing, a settlement was reached valued at $458 million.44 Despite the settlement value, most of the plaintiffs received no cash, but rather travel vouchers with so many restrictions that they were virtually unusable.45 Senator Biden observed that despite the apparent injustice, the effect of this litigation was that “the airlines stopped cheating the people . . .”46 Senator Biden went on to rationalize: “So I’ll pay the bottom feeders their high fees to stop the wrongdoers from doing bad things.”47 The flaw in Senator Biden’s logic is twofold. First, contrary to his rhetorical offer, he will not pay the class action plaintiffs’ attorneys fees—in many cases the class members themselves pay the fees. And second, coupon settlements are not a necessary evil to keep corporate defendants honest. Indeed, the opposite may be true. In another case involving changes to American Airlines’ frequent flier program, a settlement in state court awarded class plaintiffs between $25 and $75 off future travel with the airline, while the plaintiffs’ attorneys received $25 million in fees.48 Some estimated that American Airlines would ultimately enjoy a net gain from the settlement because the class action plaintiffs who otherwise would not have traveled on American Airlines would purchase tickets to make use of their otherwise valueless coupons.49 Therefore, rather than penalizing the corporate wrongdoer, American Airlines may have benefited from the settlement. There is no reason to believe that such cases cannot be settled for cash rather than coupons, even if that cash settleM-6 ment has a lower total value and consequently lower contingency fees for the plaintiffs’ attorneys. Cash settlements mean more money in the pockets of the plaintiffs and may ultimately be a greater deterrent to consumer fraud by big companies. The Class Action Fairness Act of 2005 seeks to address the unfairness in class action litigation that currently exists when it comes to settlement and attempts to address these concerns by creating the series of special consumer “The Class Action Fairness Act does not penalize consumers; it helps them by ensuring that class action settlements are fair not only to the lawyers, but to the people they claim to protect.” protections outlined above (which require federal courts to give special scrutiny to non-cash settlements and which bar approval of class settlements that result in net losses to some or all of the class members). The Class Action Fairness Act does not penalize consumers; it helps them by ensuring that class action settlements are fair not only to the lawyers, but to the people they claim to protect. Finally, opponents of the Act argue that the Act will result in an unwarranted federal intrusion into the ability of states to determine their own laws and policies concerning class action lawsuits. This argument ignores the fact that the Class Action Fairness Act does not touch on substantive state law in any manner. Instead, the Act applies uniform, federal procedural requirements to a narrow, carefully defined group of lawsuits with national economic impact.50 In fact, the Act’s exclusion of federal jurisdiction over intra-state cases specifically preserves the state’s authority to apply its own laws in cases that primarily involve parties from its own state.51 Under the current system, many state courts faced with interstate class actions have simply applied their own laws to all claims within the class. Since a state court decision has binding effect everywhere by virtue of the Full Faith and Credit clause, IDC MONOGRAPH — Second Quarter 2005 other states, before the Class Action Fairness Act, had no way to revisit these decisions.52 The Class Action Fairness Act of 2005 will curb this disturbing trend. Conclusion Class action litigation has exploded in the last decade. In recent years, there have been substantial increases in the number of class actions that have been filed in certain state court forums and it appears that the popularity of these forums is directly attributable to the fact that the courts in these jurisdictions are willing to certify almost anything as a class action. The Class Action Fairness Act of 2005 is designed to substantially diminish class action abuse, allow for the more efficient resolution of duplicative class actions that are filed in different courts and ensure that large interstate class actions are heard in the federal courts. Endnotes Press Release, White House Office of the Press Secretary, President Signs Class-Action Fairness Act of 2005 (Feb. 18, 2005)(available at: http://www.whitehouse.gov/news/releases/2005/02/20050218-11.html). 1 2 Pub. L. No. 104-67, 109 Stat. 737. Ashby Jones, “A Class Act?”, The American Lawyer and Corporate Counsel (October 8, 2003). 3 4 Id. See, e.g., The Class Action Fairness Act of 1998 (S. 2083); The Class Action Fairness Act of 2000 (S. 353); The Class Action Fairness Act of 2001 (H.R. 2341, S. 1712); The Class Action Fairness Act of 2002 (H.R. 2341); The Class Action Fairness Act of 2003 (H.R. 1115, S. 272 and S. 1751); and the Class Action Fairness Act of 2004 (S. 2062). 5 “Class Action Fairness Act of 2003 Fails to Clear Senate,” Hunton & Williams Litigation Alert, (October 24, 2003). 6 Those senators who voted in favor of cloture and limiting debate on the bill included: Lisa Murkowski (R-AK), Ted Stevens (R-AK), Jeff Sessions (R-AL), Jon Kyl (R-AZ), Wayne Allard (R-CO), Saxby Chambliss (R-GA), Zell Miller (D-GA), Charles Grassley (R-IA), Mike Crapo (R-ID), Richard Lugar (R-IN), Sam Brownback (R- KS), Pat Roberts (R-KS), Jim Bunning (R- KY), Mitch McConnell (R-KY), Susan Collins (R- ME), Olympia Snowe (R-ME), Norm Coleman (R-MN), Christopher Bond, (R-MO), Jim Talent (R- MO), Thad Cochran (R-MS), Trent Lott (R-MS), Conrad Burns (R-MT), Elizabeth Dole (R-NC), Ben Nelson (R-NE), Judd Gregg (R-NH), John Sununu (R-NH), Peter Domenici (R-NM), Mike DeWine (R-OH), George Voinovich (R-OH), James Inhofe (R-OK), Don Nickles (R-OK), Gordon Smith (R-OR), Arlen Specter (R-PA), Lincoln Chafee (R-RI), Lindsey Graham (R-SC), Lamar Alexander (R-TN), Bill Frist, (R-TN), John Cornyn (R-TX), Kay Bailey Hutchinson (R-TX), Robert Bennett (R-UT), Orrin Hatch (R-UT), George Allen (R-VA), John Warner (R-VA) and Craig Thomas (R-WY). 7 Those who voted against cloture and limiting debate on the bill included Richard Shelby (R-AL), Blanche Lincoln (D-AR), Mark Pryor (D-AR), John McCain (R-AZ), Dianne Feinstein (D-CA), Christopher Dodd (DCT), Joseph Lieberman (D-CT), Thomas Carper (D-DE), Bob Graham (D-FL), Bill Nelson (D-FL), Daniel Akaka (D-HI), Daniel Inouye (DHI), Tom Harkin (D-IA), Larry Craig (R-ID), Richard Durbin (D-IL), Evan Bayh (D-IN), John Breaux (D-LA), Mary Landrieu (D-LA), Edward Kennedy (D-MA), Paul Sarbanes (D-MD), Carl Levin (DMI), Debbie Stabenow (D-MI), Mark Dayton (D-MN), Max Baucus (D-MT), Kent Conrad (D-ND), Byron Dorgan (D-ND), Jon Corzine (D-NJ), Frank Lautenberg (D-NJ), Jeff Bingaman (D-NM), Harry Reid (D-NV), Charles Schumer (D-NY), Ron Wyden (D-OR), Jack Reed (D-RI), Ernest Hollings (D-SC), Thomas Daschle (D-SD), Tim Johnson (D-SD), James Jeffords (I-VT), Patrick Leahy (D-VT), Maria Cantwell (D- WA), Patty Murray (D-WA), Russ Feingold (D-WI), Herbert Kohl (D-WI), John Rockefeller (D-WV). Thirteen members of the Senate did not vote: Barbara Boxer (DCA), Ben Nighthorse Campbell (R-CO), Joseph Biden (D-DE), Peter Fitzgerald (R-IL), John Kerry (D-MA), Barbara Mikulski (D-MD), John Edwards (D-NC), Chuck Hagel (R-NE), John Ensign (R-NV), Hillary Clinton (D-NY), Rick Santorum (R-PA), Robert Byrd (D-WV) and Michael Enzi (R-WY). In addition to Grassley, there were 33 co-sponsors of the Act. The cosponsors, both Republicans and Democrats, were: Lamar Alexander (RTN), George Allen (R-VA), Christopher Bond (R-MO), Thomas Carper (D-DE), Lincoln Chafee (R-RI), Susan Collins (R-ME), John Cornyn (R-TX), Jim DeMint (R-SC), Mike DeWine (R-OH), Christopher Dodd (D-CT), John Ensign (R-NV), Dianne Feinstein (D-CA), William Frist (R-TN), Chuck Hagel (R-NE), Orrin Hatch (R-UT), Herb Kohl (D-WI), Jon Kyl (R-AZ), Mary Landrieu (D-LA), Joseph Lieberman (D-CT), Blanche Lincoln (D-AR), Trent Lott (R-MS), Richard Lugar (R-IN), Mel Martinez (R-FL), John McCain (R-AZ), Mitch McConnell (R-KY), Rick Santorum (R-PA), Charles Schumer (D-NY), Jeff Sessions (R-AL), Olympia Snowe (R-ME), John Sununu (R-NH), John Thune (R-SD), David Vitter (R-LA), George Voinovich (R-OH). 8 John F. Harris and William Branigin, Bush Signs Class-Action Changes Into Law, The Washington Post, February 18, 2005. 9 10 28 U.S.C.A. § 1332 (d)(2). 11 28 U.S.C.A. § 1332 (d)(6). 12 28 U.S.C.A. § 1332 (d)(3)(A-F). 13 28 U.S.C.A. § 1332 (d)(4)(A). 14 28 U.S.C.A. § 1332 (d)(4)(B). 15 28 U.S.C.A. § 1332 (d)(9). 16 28 U.S.C.A. § 1453 (b). 28 U.S.C.A. § 1453 (c)(2-3). A court of appeals can grant an unlimited extension of the 60-day period if all parties agree to such an extension, or may grant an extension for a period not to exceed ten days, if such an extension is for good cause shown and should be granted in the interests of justice. 17 In a recent class action in Illinois against Poland Springs, the plaintiffs received coupons for discounts on Poland Springs water (which the plaintiffs had already claimed was not pure and was not from a spring) while their lawyers received $1.35 million. 151 Cong. Rec. S1008 (daily ed. Feb. 7, 2005)(statement of Sen. Hatch). Also, in a recent Texas class action settlement with Blockbuster concerning late fees on movie rentals, class members received coupons on future movie rentals while their lawyers received $9.25 million in fees and expenses. Dan Ackman, Top Of The News: Bogus Blockbuster Settlement, Forbes, Jun. 6, 2001, Management & Trends, available at: http://www.forbes. com/2001/06/06/0606topblock.html. 18 19 28 U.S.C.A. § 1712 (b). 20 28 U.S.C.A. § 1712(e). M-7 IDC Quarterly Vol. 15 No. 2 28 U.S.C.A. § 1713. In a recent Alabama class action against the Bank of Boston, the plaintiffs “won” the case, but actually lost money. The case involved the amount of money kept in customers’ mortgage escrow accounts. According to the settlement agreement, some class members received payments of less than $10 apiece, only to have almost $80 deducted from their account to pay the lawyers’ fees ($8.5 million worth) H.R. Rep. No. 108-144 at 16 (2003). 21 28 U.S.C.A. § 1715 (b). “Appropriate federal official” is defined as the Attorney General of the United States or the person who has the primary federal regulatory or supervisory responsibility with respect to the defendant if some or all of the matters alleged in the class action are subject to regulation or supervision. “Appropriate state official” is defined as the person who has the primary regulatory or supervisory responsibility with respect to the defendant, or who licenses or otherwise authorizes the defendant to conduct business in the state. If there is no such person, then the appropriate state official is the state attorney general. Id. at (a). 22 23 28 U.S.C.A. § 1715 (b)(1-8). 34 E.g. Little, Amanda Griscom, Erin Brockovich, drop dead, Feb. 12, 2005, available at http://www.salon.com/opinion/feature/2005/02/12/ class_action/index.html. See JAMS biography on Hon. LeRoy A. Simmons (Ret.), available at: http://www.jamsadr.com/neutrals/Bio.asp?NeutralID=1750 (“Judge Simmons played himself as the trial judge in the movie, “Erin Brockovich,” based on the famous case, Anderson v. Pacific Gas & Electric”). 36 Moreover, the parties in Anderson v. Pacific Gas & Electric agreed to arbitration, making it even farther a field from the application of the Class Action Fairness Act. 37 John Beisner and Jessica Miller, Debunking a Myth (2003). According to the study, 61% of the class actions filed in Connecticut, 91% of the class actions filed in Delaware, 58% of the class actions filed in Maine, 63% of the class actions filed in New York, 61% of the class actions filed in Massachusetts and 58% of the class actions filed in Rhode Island would have remained in state court under the Class Action Fairness Act. 38 Interestingly, 34 class action lawsuits filed in Madison County, Illinois (described by many as the nation’s top judicial “hell hole”) between February 13 and February 18, 2005. By comparison, there were only two class action lawsuits filed in Madison County in all of 1998. Brian Brueggeman, Study Expects Sharp Dip in County’s Class Actions, Belleville News-Democrat, February 20, 2005. 39 Attributed to William Ewart Gladstone, four-time prime minister of Great Britain. 42 24 25 Some observers note that the federal courts generally deal with larger, more complex cases than state courts. This may partially explain why a new state court judge is assigned many more cases than a newly assigned federal judge. By the same token, however, insofar as federal courts do in fact deal with larger, more complex cases, one would expect a federal court to take longer to resolve its average case when compared to a state court. 26 See Administrative Office of the U.S. Courts, Judicial Business of the United States Courts 27 2003, at 159, 172 (2004). S. Rep. No. 108-123 at 39 (2003). 35 Id. Lavelle, Marianne, Class Action Crackdown, U.S News and World Report, Money & Business, February 21, 2005. 40 S. Rep. No. 108-123 at 16 (2003)(citing Scott v. Blockbuster Inc. (No. D162–535, Jefferson County, Texas, 2001)). 41 Id. Lavelle, Marianne, Class Action Crackdown, U.S News and World Report, Money & Business, February 21, 2005. 43 See In re Domestic Air Transportation Antitrust Litig., 137 F.R.D. 677 (N.D. Ga. 1991) 44 Lavelle, Marianne, Class Action Crackdown, U.S News and World Report, Money & Business, February 21, 2005. 45 46 Id. 47 Id. 48 S. Rep. No. 108-123 at 17 (2003). 49 Id. 28 H.R. Rep. No. 108-144 at 24 (2003). 50 29 Id. Dellinger, supra note 18, p. 7. 51 30 Id. Id. 52 Id. Walter Dellinger, The Class Action Fairness Act: Curbing Unfairness and Restoring Faith in Our Judicial System, Progressive Policy Institute Policy Report March 2003. 31 32 Id. at p. 8. S. Rep. No. 108-123 at 79-80 (2003). This argument ignores the fact that the Class Action Reform Act does not prohibit any class actions from being filed since it does not address whether class actions may be brought. The Act does not alter substantive law at all and makes no changes in a person’s right or ability to assert claims. It only addresses where a particular type of class action must be adjudicated. Dellinger, supra, p. 8. 33 M-8
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