May Non-Party Observers Attend Depositions in Illinois Circuit Court Litigation?

By Dan Porter on August 28, 2014 | Posted in Blog

Sooner or later, most attorneys will encounter a situation when someone other than a party to a case asks to attend a deposition being taken in that case, or even shows up at a deposition unannounced.  Perhaps it’s a family member or friend of the deponent, there for support.  Maybe it’s a consulting (or even a disclosed) expert, there to assist an attorney with his examination.  Or it could be a claims adjuster who wants to personally observe the deponent’s performance (or yours) first-hand.

Whether such person is permitted to attend the deposition may depend, in part, on which legal system a particular case is filed in: Illinois circuit court, or Federal district court.  This article will focus on state court proceedings.

There is no Supreme Court Rule, no statute, and no case law in Illinois which specifically prohibits a non-party observer’s attendance at a deposition. Illinois Supreme Court Rules 202, 203 and 204 specify, respectively, the purposes for which depositions may be taken, the locations where depositions may be taken, and the methods of compelling the appearance of deponents, but neither the Supreme Court Rules, nor the Illinois Code of Civil Procedure, contain any provisions limiting the attendance of specific persons at depositions.1 Read More…

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An Insurer’s Guide to Indiana Medical Malpractice Laws

By Nick Poteres on August 14, 2014 | Posted in Blog

4022566308_855b9c8934_zIndiana’s medical malpractice laws attempt to combat rising healthcare costs and insurance premiums.  Awards, attorney’s fees, and health care provider liability are all capped.  Plaintiffs have specific procedures to follow, providers must qualify for the protections, and insurers must take certain actions to protect their insureds.  Health care providers and their adjusters must have a strong grasp of the basic structure of the system in order to successfully handle malpractice claims.  Accordingly, I have outlined the process to help navigate Indiana’s medical malpractice laws.

The Procedures

A plaintiff must first submit a proposed complaint to the Commissioner of the Indiana Department of Insurance, who notifies all defendants.  The parties then select an attorney to act as chairman of the proceedings, an administrative and advisory role only.  A party then may request a medical review panel.  The parties each select a medical professional to the panel, and those two select the third and final member.

The chairman convenes the panel, expedites review of the claim, and schedules the submission of evidence.  Parties may submit evidence in writing and request the panel convene for questioning and further presentation of evidence.  The panel must issue its expert opinion within 180 days from the selection of its final member.

The medical malpractice laws focus on the parties and the panel, but several regulate the provider’s insurer.  In order to qualify under these laws, the provider must carry malpractice liability insurance of at least $250,000 per occurrence and $750,000 annual aggregate, unless the provider is a hospital, health maintenance organization, or health facility.  A provider also has the option to file and maintain a cash or security bond, or annually submit a verified financial statement.

Read More…

Social Media Discovery Increasingly Critical to Effective Claim Resolution

By Mike Radak on August 07, 2014 | Posted in Blog

Social media explainedIn the last 10 years, with the explosion of internet speed and accessibility, the average person has developed a large online footprint.  Social media has taken off as a way for people to keep in touch, share pictures, and network business.  People post a tremendous amount of personal information on sites like Facebook, Twitter, LinkedIn and Google+, much of which is available to the general public.  The stats alone tell the degree to which the world population is using social media services:

  • Facebook: 1.28 billion users

  • Twitter: 255 million users

  • LinkedIn: 300 million users

  • Google+: 300 million users

  • Instagram: 200 million users

Pre-litigation social media investigations by insurance adjusters

As an insurance adjuster, it is critical to investigate the social media presence of the claimant and even your own insured at the outset of a claim.  Upon receipt of a new claim:

  • Search for any publicly available information on social media sites that the claimant has made available at the earliest opportunity.  Save to PDF or print what is available.
  • Google the opposing party’s name, followed by “twitter,” “facebook,” etc.
  • Consider hiring an independent investigator to conduct the investigation.  If the case were to go to litigation, the investigator could provide the necessary authentication for the evidence.

While it may seem obvious, do not try and befriend the claimant online in order to gain access to their information.  Don’t create an account under a false name to gain access to their information.  What is available publicly is generally fair game to investigate. Read More…

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New Settlement Rules and Deadlines Mean the Best Approach for the Defense is to be Proactive

By Andrew Stuart on August 01, 2014 | Posted in Blog

9173784342_9a3690113e_z (1)The new Illinois settlement statute aims to expedite the payment of settlements in civil cases—and with stringent penalties on the defendant for non-compliance, the best approach is to be proactive.  While there may be instances of slow to process settlements and late-paying carriers, the real source of delay – both to the frustration of defendants and plaintiffs alike – has been the lengthy intervals required for plaintiffs to resolve outstanding liens and Medicare issues.

So far, the jury is still out on the practical effects of the new law. While many companies and their insurance carriers are already aware of the new rules, a quick review of the requirements and potential pitfalls of the new law is in order as settlements tend to pick up towards the second half of the year.

The law puts the onus on settling defendants to quickly tender releases and pay settlement proceeds by setting statutory deadlines.  It also provides an enforcement mechanism by putting penalties – including the entry of judgment and assessment of costs – on the books.  However, the law provides no time limits, deadlines or penalties on plaintiff for failing to sign the release, resolve lien issues or timely obtain court orders where necessary to approve settlements.  Prudent claims handlers should keep these requirements in mind as they work through settlements and close out their claims. Read More…

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Condo Boards Can’t Just Phone (or Email) it In

By Tom Weiler on July 17, 2014 | Posted in Blog

You’re a newly elected board member of your condo association. You’re working late hours at your regular job and you’re wondering how you’re going to find the time to do this condo board thing on top of everything else you have going on in your life. So when you get a call from the board president telling you that a few of the board members are meeting in his unit tonight to have some drinks and discuss some of the issues facing the board, you jump at the chance.

Don’t do it!

2786946993_5a870f87ec_zIn a recent decision, the First District Appellate Court reaffirmed that the Condominium Property Act (“CPA”), with limited exceptions, requires all meetings of board members to be held in person and open to all unit owners. The court in Palm v. 2800 Lake Shore Drive Condominium Association held that “conducting board business” as used in the definition of board “meeting” in the CPA, included workshops and executive sessions that the board held in private and that, pursuant to §18(a)(9) of the act, these meetings must be open to all unit owners. The only exceptions are those specifically enumerated in the CPA – (1) discussion of litigation against or on behalf of the association; (2) consideration of the appointment, employment or dismissal of an employee; or (3) discussion of violations of rules and regulations of the association or a unit owners unpaid share of any common expenses. Even then, any vote on the issues discussed or considered in closed session must be in a meeting open to any unit owner.

“But it wasn’t really a meeting–we were just talking and trying to get a feel for the issues.”

It doesn’t matter. There doesn’t have to be a vote on anything you talk about. If there’s enough of you to make a quorum and you talk about board business, it has to be in a properly noticed meeting open to all unit owners. Read More…

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Use of visual aids at trial: guidelines regarding admissibility

By Melissa Gordon on July 03, 2014 | Posted in Blog

While complicated medical testimony is often effectively explained to the jury through use of PowerPoint presentations, models, and drawings, the proper use of these visual aids at trial is frequently a point of contention between the parties.  The courts allow experts to utilize these visual aids as “demonstrative evidence,” -evidence which has no value in its own right, but is meant to aid the jury in better understanding the expert’s opinion.  However, before allowing their admission at trial, the courts are careful to ensure that the visual aids merely educate the jury, without providing support for the expert’s opinions.

While these visual aids can be very effective at trial, they can also be very costly to produce.  Before spending the time, money and effort on creating visual aids, be sure they follow these guidelines recently offered by the Illinois Appellate Court in Sharbono v. Hilborn:

  • The primary considerations of whether demonstrative evidence may be used at trial are relevancy and fairness.
  • The demonstrative evidence must actually be used to help explain the verbal testimony of a witness.MRI
  • An adequate foundation must be laid in order for the party to use the exhibit, such as the expert testifying from personal knowledge that the exhibit accurately portrays the information set forth in the exhibit.  For example, as suggested in Sharbono, the witness would have to testify that, from personal knowledge, the sample images from a learned treatise accurately portrayed the condition that the images purported to show.
  • When the use of an exhibit at trial goes beyond educating the jury, and helps to support the expert’s opinions, it is not demonstrative evidence, and therefore, must be properly and timely disclosed in accordance with the Illinois 213(f)(3), otherwise it is inadmissible and, will be barred.

Parties who want to use visual aids during a witness’ testimony must thoroughly consider well before trial whether the exhibit meets the above criteria.  If so, then it likely truly is demonstrative evidence and will be admitted as such as long as the party has the witness lay the proper foundation as outlined above. If not, it will likely be considered a basis for the expert’s opinions and will be inadmissible unless timely and properly disclosed under Illinois Supreme Court Rule 213(f)(3).

Image by Jill Carlson licensed under CC BY 2.0

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An Overview of Illinois Supreme Court Medical Malpractice Decisions

By Suzanne Gillen on June 26, 2014 | Posted in Blog

In the last few years, the Illinois Supreme Court has addressed various issues in the context of medical malpractice cases.  The following cases provide guidance in the area of medical/healthcare malpractice with respect to wrongful birth, negligent infliction of emotional distress, res judicata, Statute of Limitations, Statute of Repose and punitive damages:

Wrongful Birth & Negligent Infliction of Emotional Distress

Clark v. Children’s Memorial Hospital, 353 Ill.Dec. 254 (2011)

Plaintiffs were claiming wrongful birth and expenses of caring for their disabled child.  Plaintiffs’ first child was born with a genetic mutation resulting in Angleman Syndrome.  They claimed that they were not made aware of this condition, and that they would not have conceived their second child if they had been advised of the risks of giving birth to a child with the same condition.  The Plaintiffs made a claim for wrongful birth and for expenses of caring for a disabled child after reaching the age of majority.  The Court held that the claim for the expenses was properly dismissed because Illinois does not require parents to support children after the age of majority.

However, the Court held that the “zone of danger” test does not apply to Plaintiffs who seek compensation for emotional damages as an element of damages for the tort of wrongful birth.

Thornton v. Garcini, 237 Ill.2d 100 (2009)

This case involved a claim for negligent infliction of emotional distress.  The facts of this case involve a premature birth where the head of the child became stuck inside of the mother while the rest of his body was delivered.  The baby died when the nurses were unable to complete the delivery.  The doctor was notified but arrived 1 hour and 10 minutes after the death of the baby.

The issue in this case was whether a Plaintiff is required to present expert testimony to support a claim for negligent infliction of emotional distress.  In reaching the conclusion, the Supreme Court recognized that there may be instances when expert testimony can aid a jury in identifying how and when strong emotions produce symptoms in patients.  However, the Court also recognized that jurors from their own experience are able to determine whether specific conduct can result in severe emotional disturbance.  Consequently, the existence or non-existence of medical testimony goes to the weight of the evidence but does not prevent this issue from being submitted to the jury.

The Court held that based on personal experience alone, i.e. the partial birth and death of a child whose head becomes stuck inside the mother while the rest of his body was outside of the mother and which remained that way for 1 hour and 10 minutes before the doctor’s arrival, the jury could reasonably find that the circumstances of the case caused the Plaintiff emotional distress.  In fact, the Plaintiff explicitly testified with respect to the experience of having her deceased infant protrude from her body for over an hour while awaiting the doctor’s arrival.  Consequently, the Court held that expert testimony was not required to prove Plaintiff’s case of negligent infliction of emotional distress. Read More…

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Non-Competes in Illinois After Fifield v. Premier Dealer Services

By Theresa Bresnahan-Coleman on June 19, 2014 | Posted in Blog

In light of a recent decision by the Illinois First District Appellate Court, Illinois employers should support their non-competition agreements with consideration that goes beyond merely the fact of employment. Exactly what consideration will suffice as adequate consideration to support enforceability of the restrictive covenant, however, is not entirely clear in the wake of the appellate court’s decision. What is clear is that in the First District – that is, Cook County – Illinois state courts will not enforce non-competes unless the employee worked for the employer for at least two years or if the employer offered some other valuable consideration that is tied specifically to the non-compete.

Previously, Illinois employers could argue that the fact of employment for a certain “substantial” period of time constituted adequate consideration to support a non-competition agreement. In Fifield v. Premier Dealer Services, Inc., however, the First District Appellate Court held that two years of employment constitutes adequate consideration to enforce a non-compete, no matter if the employee signed the restrictive covenant as a condition to her employment offer or if the employee voluntarily resigns herSignature-Sebastien Wiertz position. Any employment length shorter than two years is not adequate consideration, unless some other consideration was provided to the employee. The court did not, however, offer any guidance for what constitutes adequate “other” consideration for a non-compete when an individual’s employment terminates before that individual has worked for at least two years. Rather, the Fifield court merely held that the non-compete entered into between the plaintiff and the defendant in that case was not enforceable where the plaintiff resigned his position with the defendant after three-and-a-half months and where the defendant did not offer any other consideration to the plaintiff at the beginning of his employment. So, in the wake of Fifield, employers in the First District seeking to enforce non-competes likely can only do so on the basis of substantial employment if the former employee worked for the employer for at least two years. If the employee worked for less than two years before parting ways with her employer, the non-compete may only be enforceable against her if her employer offered her some other, additional consideration at the outset of her employment. Read More…

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4 Ways Illinois Realtors Can Protect Themselves from Liability for Undisclosed Property Conditions

By Christopher R Dunsing on June 12, 2014 | Posted in Blog

Illinois real estate agents and brokers perform extensive due diligence in completing a transaction, from a simple home inspection on a residential sale to environmental site assessments in commercial transactions.  Nonetheless, there are many things that an agent or broker simply cannot know about a property.  Recently, several cases have again addressed the extent of a real estate salesperson or broker’s liability for undisclosed, hidden or latent conditions in a property, including those conditions known only by the seller of the property.  While there are a number of different statutory and common law causes of action, each with their own unique requirements to prevail on a claim, the same fundamental questions permeate all of them:

Was there a false statement or omission of information by a salesperson or broker to a buyer or their representative regarding a condition of the property?

Did the salesperson or broker know that the statement was false when it was made or withhold some relevant information about the condition?

Even if the salesperson or broker did not know a statement was false or that omitted information was relevant, should they have? In other words, did the agent or broker negligently make the statement or withhold information?

Did the buyer suffer any damages as a direct result of the false statement or omission?

The field of potential undisclosed, latent or hidden conditions is wide, and Illinois courts have addressed claims against real estate professionals based on such varied issues as title defects, architectural or design flaws, termite damage, flooding history, commercial revenue statements, local ordinances and school district lines.  Just as the conditions vary, so do the defenses, but here are a few points to keep in mind for your business:

When in doubt, disclose any condition of the property to the buyer prior to any transaction.

No single transaction is worth the possible personal liability or licensure repercussions of withholding relevant property conditions.

The Illinois Consumer Fraud and Deceptive Business Practices Act (the “Consumer Fraud Act”) allows for statutory fraud actions against both a buyer’s or seller’s real estate salesperson or broker if “the salesman or broker knows of the false, misleading or deceptive character of such information.” The Consumer Fraud Act is a popular mechanism for plaintiffs’ attorneys because if a violation is proven, it allows for statutory recovery of the attorney’s fees.

The Illinois Real Estate License Act of 2000 also allows a private right of action for purchasers of property against their own real estate broker and the seller’s broker.  The Real Estate License Act provides: Read More…

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Inspection of Evidence at Accident Site Does Not Create a Duty to Preserve

By Matthew T. Andris on June 05, 2014 | Posted in Blog

The Illinois Supreme Court recently confirmed that a party owes no affirmative duty to preserve potential evidence in advance of litigation.  In Martin v. Keeley & Sons, Inc., the Plaintiffs, employees of Defendant Keeley, were working to construct a bridge over Maxwell Creek in Randolph County, Illinois.  While they were working, the concrete I-Beam they were standing on rolled, split in two parts, and then crashed into the creek below, injuring several workers.  The Illinois Department of Transportation and the Occupational Safety and Health Administration conducted an investigation of the accident site, including a non-destructive examination of the I-Beam.  The following day, after engineers from Keeley conducted a visual examination of the I-Beam, the beam was removed under the direction of Keeley and salvaged.

Maxwell Creek Bridge

Plaintiffs brought suit against the manufacturer of the I-Beam, the designer of the I-Beam and Keeley.  Plaintiffs’ also sued Keeley for destruction (spoliation) of evidence with respect to the destroyed I-Beam.  The manufacturer and designer ultimately filed counterclaims for spoliation against Keeley.  Keeley filed a motion for summary judgment and the circuit court found that Keeley had no duty to preserve the I-Beam, a decision which was ultimately upheld by the Illinois Supreme Court.

In its decision, the Illinois Supreme Court found that Keeley had no duty to preserve the I-Beam, even though it knew it would likely be a party to future litigation with regard to the I-Beam.  Generally, in Illinois there is no duty to preserve evidence.  However, the Supreme Court previously established an exception to the general no-duty rule if a two prong test is satisfied.  Under the first part of the test, a plaintiff must show that an agreement, contract, statute, special circumstance, or voluntary undertaking has given rise to a defendant’s duty to preserve.  A voluntary undertaking requires a showing of affirmative conduct by the defendant evidencing its intent to voluntarily assume a duty to preserve evidence.  Mere control of the piece of evidence is not sufficient to satisfy the first prong the exception.  The second prong of the exception to the no-duty rule is that a defendant should have foreseen that the evidence was material to a potential civil litigation. Read More…

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