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July 2017


Defense Developments

Gunty & McCarthy Convinces USDC Southern District of Illinois Federal Court To Grant Defendant’s Jurisdiction Motion

Gunty & McCarthy obtained a dismissal pursuant to the court granting its motion to dismiss for lack of personal jurisdiction in Muenstermann v. U.S. of A., Versar Inc., et al., case no. 16-CV-932-SMY-SCW. Defendant Versar is a foreign corporation with its state of incorporation and principal place of business located in Springfield, Virginia. Plaintiff had filed his wrongful death action on behalf of his deceased 23-year old son alleging that defendant caused a live mortar shell to be transferred from the U.S. Army’s National Training Center at Fort Irwin, CA to Granite City, IL. On August 25, 2014, the mortar shell exploded in Granite City, Illinois, killing plaintiff’s decedent. Defendant Versar argued that plaintiff failed to plead facts suggesting that Versar had any duty to render mortars inert as part of its range clearing activities at Fort Irwin. Gunty & McCarthy argued all the points under Rule 12(b)(6) as well as Rule 12(b)(2) and the Daimler AG v. Bauman, 134 S.Ct. 759, 187 L.Ed.2d 624 (2014) decision and why plaintiff’s arguments were without merit in light of same. The court agreed, dismissing the plaintiff’s action at the conclusion of oral arguments. The court held that plaintiff’s claim, while the facts pled were admittedly thin, were enough to put Versar on notice under U.S. Sup. Ct. Rule 12(b)(6).

However, the court then held that plaintiff’s client could not satisfy the requirements set forth by the U.S. Supreme Court in Rule 12(b)(2) for personal jurisdiction. The court cited as the “paradigm bases for general jurisdiction”, the holding in Daimler, 134 S.Ct. at 761, i.e. “that the defendant must have “purposefully directed its activities at the forum state” and the cause of action must have arose out of or relate to the defendant’s contacts with the forum state.” Russell v. SNFA, 2013 IL 113909 Para.40, 987 N.E.2d 778, 787. Significantly, the court also held that the unilateral activity of a third party cannot subject a nonresident defendant to specific jurisdiction, even if the third party claims some relationship with that defendant. There must be some act by which “the “defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Citing Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). In other words, a defendant is not subject to jurisdiction based merely on random, fortuitous or attenuated contacts – there must be a real relationship with the state with respect to the activities at issue. Citing N. Grain Mktg. LLC v. Greving, 743 F.3d at 487, 493 (7th Cir. 2014). The court held that these criteria were not satisfied notwithstanding plaintiff’s arguments that Versar engaged in “continuous and substantial business” in Illinois or that Versar had registered with the Secretary of State and maintained an agent for service of process in the state. The court relied on Daimler as changing Illinois’ prior reliance on those arguments to find jurisdiction and ultimately held that Versar was not “at home” in Illinois for purposes of general jurisdiction.

The plaintiff had also argued that there was specific jurisdiction in Illinois because the explosion constituted a tort committed by Versar creating the necessary minimum contacts. The court held that that fact in and of itself was not enough to subject this defendant to jurisdiction but rather “the proper question is whether the defendant’s conduct connects him to the forum in a meaningful way.” Citing Walden v. Fiore, 134 S.Ct. 1115, 1125, 188 L.Ed.2d 23 (2014). Because Versar never contracted with the co-defendants nor were they involved in transporting the munitions to Illinois or the disposal of the materials here, their contacts were not seen as meaningful and consequently did not subject Versar to specific jurisdiction in Illinois.

HeplerBroom Attorneys Secure Defense Verdict in Medical Malpractice/Long-Term Care Trial

After a three-week trial, HeplerBroom attorneys Linda Hay and Susan Wagener secured a complete defense victory for their client, an internal medicine physician. (Co-defendant ManorCare of Elk Grove, a Chicago-area long-term care facility, was represented by McVey and Parsky and also received a not guilty verdict.) Trials involving both an individual physician, along with a long-term care facility, are rare, making this verdict particularly significant.

The case involved a 54-year-old man who had gone to ManorCare for rehabilitation after back surgery and subsequently died from a pulmonary embolism. Plaintiff’s attorney Matthew Baker of the Malman Law Firm asked for $17 million in damages but was unsuccessful in persuading jurors that neither the physician nor ManorCare were legally liable for the man’s death.

Northern District Rules in Favor of the IHSA

On July 13, the Honorable John J. Tharp Jr., District Judge of the United States District Court for the Northern District of Illinois, issued a ruling in favor of the Illinois High School Association (IHSA) based on the IHSA’s motion for summary judgment. The ruling pertained to a lawsuit filed by the father of a high school student (“A.H.”) that sought the implementation of new qualifying times for para-ambulatory athletes for the IHSA Track & Field State Finals, as well as a para-ambulatory division in the IHSA’s 5K Road Race.
In a written opinion, Judge Tharp rejected the argument that IHSA discriminated against A.H. in violation of the Rehabilitation Act and the Americans with Disabilities Act. The court also held that plaintiff failed to state a claim under the Equal Protection Clause because, as the opinion states, the IHSA had a rational basis for denying A.H.’s requested accommodations.
“IHSA is not required, by statute or the Constitution, to lower the qualifying standards for the athletic competitions it sponsors,” Judge Tharp wrote.
IHSA Executive Director Craig Anderson said, “I believe that the IHSA’s track record speaks for itself in regard to creating additional opportunities for all student-athletes. It remains important that we be able to follow the rules set forth in our Constitution when making changes. We appreciate that Judge Tharp’s thoughtful ruling provides us that latitude.”

Matt Hefflefinger, Heyl, Royster, Voelker & Allen, P.C., was lead counsel for IHSA, with assistance from Tyler Pratt. Plaintiff has filed a notice of appeal.

Andrew Kopon Jr. Wins Appeal Before U. S. Seventh Circuit

Andrew Kopon Jr., of Kopon Airdo, LLC, won an appeal before the United States Seventh Circuit Court of Appeals on March 29, 2017. The Court found in favor of all the defendants, including the private Catholic school, the school’s religious sponsor, and the school’s guidance counselor, and against the seven plaintiffs in the case, who had alleged that the mandatory drug testing program at the school was discriminatory. Chief Judge Diane Wood, joined in the unanimous decision by Judges Richard Posner and David Hamilton, held that the District Court was correct in dismissing pursuant to defendants’ Rule 12(b)(6) the plaintiffs’ complaint, since the plaintiffs failed to allege a cause of action for discrimination or a violation of any federal statute. The Court’s Opinion is here.

Adrian Mendoza and Edward R. Sherman Obtain Summary Judgment Ruling

Lillig & Thorsness, Ltd. attorneys Adrian Mendoza and Edward R. Sherman recently obtained a summary judgment ruling in the Circuit Court of Cook County in favor of a longstanding L&T client. The plaintiff filed suit claiming that its property sustained significant structural damage due to water infiltrating the property over the course of an entire year. The source of the water was alleged to be a broken water line in an adjacent property where L&T’s client, a property preservation company, was performing services on behalf of a mortgage servicer. The plaintiff alleged that L&T’s client owed it a duty to maintain and repair the subject water line. Attorneys Mendoza and Sherman argued that the client did not owe a legal duty as a possessor of the property because it did not have exclusive possession and that it did not voluntary undertake a duty for the plaintiff’s benefit. They also argued that the client did not owe a contractual duty to the plaintiff because the plaintiff was not an intended beneficiary of the contract entered into between L&T’s client and the mortgage servicer. The court agreed with L&T’s argument and rejected plaintiff’s contention that L&T’s client owed a duty of care and specifically found that there was no evidence that the Plaintiff, as a neighboring property owner, was an intended third-party beneficiary of the contract entered into between L&T’s client and the mortgage servicer.

Brian Myers Obtains Summary Judgment in Favor of Construction Company

Brian Myers of The Hunt Law Group, obtained summary judgment in favor of a construction company in connection with plaintiff's fall at a commercial premises on the grounds that plaintiff's attribution of the claimed oil spill to the defendant was based on speculation and conjecture.

Sinn and Thompson Prevail for Surgeon in Med Mal Trial

Partners Dave Sinn and Matt Thompson of Heyl, Royster, Voelker & Allen, P.C. successfully defended an OB/GYN surgeon in a nine-day jury trial against allegations of a negligent ureter injury during a laparoscopic-assisted vaginal hysterectomy. The plaintiff claimed the injury led to a long line of procedures attempting to repair the ureter and an eventual nephrectomy (removal of kidney), as well as PTSD resulting from the complications and multiple medical procedures.

The primary defense was that the surgeon stayed within safe planes of dissection, however a thermal injury from cautery occurred because prior traumas and surgeries had likely altered the anatomical location of the ureter in the pelvis, bringing it close enough to the uterus to suffer a burn. After a 2-hour deliberation, the jury returned a defense verdict in favor of our client.

Smith And Chaddock Obtain Directed Verdict for Hospital

Matthew Smith and Adam Chaddock of Quinn, Johnston, Henderson, Pretorius & Cerulo obtained a directed verdict for their client in a recent medical malpractice case in Peoria County.

The case involved a laparoscopic assisted vaginal hysterectomy resulting in an injury to a ureter. The patient required multiple repair surgeries and eventually had an elective nephrectomy to combat recurrent kidney infections.

The OB/GYN was sued for causing the injury and failing to diagnose it in a timely fashion. Quinn Johnston’s client, the hospital, was sued for failing to transmit a CT report showing a possible ureter injury to the OB/GYN in a timely fashion.

Pretrial motion practice on behalf of the hospital resulted in judgment in the hospital’s favor on all but one allegation of negligence. At trial, Plaintiff was unable to offer evidence in support of the remaining allegation, resulting in a directed verdict in favor of the hospital. The case continued against the OB/GYN.

Noteworthy

HeplerBroom and Chicagoland Chapters of CPCU Donate to Ronald McDonald House

HeplerBroom and the Chicagoland chapters of Chartered Property Casualty Underwriters (CPCU) recently donated over $2,100 to the Ronald McDonald House Charity of Chicagoland & Northwest Indiana. The monies were generated from the first annual insurance law and coverage seminar the two co-sponsored.

The seminar was held at McDonald’s Hamburger University in Oak Brook, Illinois. In lieu of a registration fee, HeplerBroom and the CPCU chapters asked attendees for a donation to help support Ronald McDonald House programs.

Andrew Kopon Jr. Elected President of the International Association of Defense Counsel

Kopon Airdo, LLC is pleased to announce that Andrew Kopon Jr. has been elected to serve as the next President of the International Association of Defense Counsel (IADC). Andy was elected President at the IADC Annual Meeting in Quebec City, Canada, in July 2017. Prior to serving as President, Andy was a Member of the IADC’s Board of Directors for three years and served for one year as the President-Elect.

Heather Bailey and Team Raises Nearly $16,000 Special Olympics Chicago

Heather Bailey of SmithAmundsen, and her team, the B & B Blizzard Bunch, raised nearly $16,000 for the 2017 Chicago Polar Plunge, held on March 5, 2017, which benefitted the Special Olympics Chicago. It was the group’s 11th year participating in the event. She said the most rewarding part of the day was being greeted with a hug by Special Olympics athletes as she arrived at the lakefront. “It makes it all worth it,” Heather stated in a Chicago Sun Times article. She was also featured in the Chicago Tribune’s video coverage of the event.

Luther Inducted into The College of Workers’ Compensation Lawyers

Kevin Luther, of Heyl, Royster, Voelker & Allen, P.C., was inducted as a Fellow of The College of Workers’ Compensation Lawyers at the 12th Annual Induction ceremonies on March 18. The ceremonies were presided over by officers of the College, including outgoing president, Brad Ingram, who also moderated a panel discussion at the event entitled “The Cold Hard Stats: Injury Frequency Rates and Claim Trends.”

Bruce Bonds is also a Fellow of the College, which the firm has participated in since its inception. The College of Workers' Compensation Lawyers was established to honor attorneys who have distinguished themselves in the field of workers' compensation. Members have been nominated for the outstanding traits they have developed in their practice of twenty years, or longer, representing plaintiffs, defendants, serving as judges, or acting for the benefit of all in education, overseeing agencies and developing legislation. Fellows of the College have also shown significant evidence of scholarship, teaching, lecturing, and/or distinguished published writings on Workers’ Compensation or related fields of law.

Steven Puiszis to Serve as Program Chair for the NFJE Judicial Symposium

Steven Puiszis, partner at Hinshaw & Culbertson LLP, who also serves as the firm's General Counsel of Privacy, Security and Compliance – will serve as Program Chair for the Thirteenth Annual Judicial Symposium titled "Judging Emerging Issues in the Twenty-First Century" presented by the National Foundation for Judicial Excellence (NFJE) to be held July 14 – 15, 2017 at Loews Chicago Hotel, Chicago. The NFJE is an organization devoted to a fair and balanced judiciary. Each year NFJE offers educational programming to state appellate and Supreme Court judges highlighted by an annual judicial Symposium. A large number of state appellate and Supreme Court judges around the country are scheduled to attend this year's NFJE symposium.

Ken Werts to be Inducted into the College of Workers’ Compensation Lawyers

Kenneth Werts of Craig & Craig LLC was inducted into the College of Workers' Compensation Lawyers at the College's Induction Dinner, at the conclusion of the ABA's Workers' Compensation Committee Midwinter Seminar and Conference in Phoenix, Arizona. The College was established to honor those attorneys who have distinguished themselves in the practice in the field of workers' compensation. Individuals are nominated for fellowship for their outstanding traits they have developed in their practice of 20 years or more. Fellows have convinced their peers, bar, bench and public that they possess the highest professional qualifications and ethical standards, character, integrity, professional expertise and leadership. They have also demonstrated significant evidence of scholarship, teaching, lecturing, and/or distinguished published writings on Workers' Compensation or related fields of law. Mr. Werts becomes only the ninth defense attorney in the State of Illinois to be inducted into the College.

 

December 2016


Defense Developments

Workers’ Comp Trial Results in Zero Award

Heyl, Royster, Voelker & Allen, P.C. recently successfully defended a construction contractor company in a Workers’ Compensation trial in which the petitioner, a pipefitter, claimed he sustained right rotator cuff and biceps tears while unloading pipes from a supply truck in 2011. Although, prior to the firm getting involved, the claim was accepted as compensable, medical records disclosed that petitioner had been receiving medical treatment to his right shoulder since 1994. Petitioner testified that following the alleged work injury his right shoulder pain increased and was constant in spite of the fact that he had been previously diagnosed with chronic right shoulder impingement and had undergone shoulder injections. Brad Antonacci presented the respondent’s case in which the arbitrator denied all benefits and found petitioner failed to prove a causal connection to the alleged work injury. At trial, petitioner requested an award of $118,450, including penalties and attorney's fees for non-payment of certain benefits. The arbitrator awarded $0.00.

Pretzel & Stouffer Wins Constitutional Challenge in Illinois Supreme Court to Secure Right to 12-Person Jury in All Civil Cases in Illinois

Attorneys Robert Marc ChemersPeter G. Syregelas, and Paula K. Villela, recently obtained a major victory before the Illinois Supreme Court, successfully challenging the constitutionality of Public Act 98-1132, Senate Bill 3075, which reduced the number of jurors in a civil trial in State of Illinois from 12 to 6, arguing that a jury of 12 is a fundamental right under Article 1, Section 13 of the Bill of Rights to the 1970 Constitution of the State of Illinois, which states, “The right of trial by jury as heretofore enjoyed shall remain inviolate[.]” The Supreme Court ruled that the Illinois Constitution guaranteed a jury of 12 at the time of its ratification and struck the entirety of the Act. Civil jury trials in Illinois will now be conducted with 12 jurors as a result of this decision, and any trials conducted with less jurors than demanded will be retried.

 
Mr. Chemers argued the appeal on May 11, 2016. Mr. Syregelas, with the assistance of Ms. Villela, prepared the Brief filed in the Supreme Court. The decision is reported at Kakos v. Butler, M.D., 2016 IL 120377, and can be accessed here http://www.illinoiscourts.gov/Opinions/SupremeCourt/2016/120377.pdf.

John Cunningham and Denise Baker-Seal Receive Defense Verdict

Randolph County jurors returned a defense verdict Oct. 21 following a week-long trial over the auto accident death of an 81-year-old man six years ago in Chester. The family of John Mulholland had sought $1 million in damages from defendants Joe Cohen and his business Joe-Co Pools involving a Sept. 14, 2010 incident. According to the complaint, Mulholland was driving a 1995 Chevrolet pick up truck eastbound on Water Street while approaching the T-intersection with Illinois Route 3. Represented by Brian Zirkelbach of Murphysboro, Mulholland's family claimed that Cohen, who was southbound on Route 3, was distracted while operating hi Dodge Ram pick up with an attached trailer carrying a bobcat. The family alleged Cohen negligently swerved his vehicle into the oncoming lane and struck Mulholland in the intersection. Cohen was using his cell phone at the time of the accident, however that practice was not illegal at the time of the accident. Zirchelbach also claimed that Cohen was speeding and should not have swerved into the northbound lane. Cohen and his business, represented by John Cunningham and Denise Baker-Seal of Brown & James, P.C. in Belleville, argued that Mulholland did not stop or yield at the intersection, and was therefore to blame for causing the accident, Defendants presented an eye witness to the accident who testified.The defense also provided experts who stated that Cohen was not speeding when the accident occurred.- From the Madison-St. Clair Record, 11/15/16

Mike Denning Prevails for Surgeon in Jury Trial

Heyl, Royster, Voelker & Allen, P.C. recently obtained a defense verdict for a colorectal surgeon following a jury trial in Winnebago County in a case in which the plaintiff asserted that during a colonoscopy the surgeon perforated the plaintiff’s colon. During a subsequent emergency surgery, a 1.5 cm perforation was discovered, which required plaintiff to undergo an ileostomy, lengthy hospitalizations, and additional surgeries. Mike Denning represented the surgeon at trial in which the jury returned a defense verdict after deliberating for less than 45 minutes.

Hennig and Tesmer Win Trial Regarding An Alleged Failure to Diagnose a Paraesophageal Hernia Resulting in Death

Cassiday Schade LLP partners Michael J. Hennig and Trisha K. Tesmer obtained a verdict in favor of defendant surgeon and his surgical practice in a Cook County medical malpractice case on November 30, 2016. Plaintiff claimed that defendants were negligent in failing to order a CT scan to diagnose a paraesophageal hernia resulting in the death of a 64-year-old woman. The defense argued that a CT scan would not have diagnosed a paraesophageal hernia and that plaintiff’s refusal to do an EGD or be examined by another surgeon the next day was the sole proximate cause of her death. Plaintiff’s counsel requested $3.65 million in damages. The jury returned a verdict in favor of defendants. The above summary is specific to a particular case nd is not intended as a projected outcome on any other matter.

Richard Huettel and Lynsey Stewart Defend Chicago Gastroenterologist

On December 13th, a Cook County jury returned a verdict in favor of a Chicago gastroenterologist in a wrongful death case tried before Judge Clare McWilliams. The case involved allegations of medical negligence in connection with the performance of an ERCP in a 70 year old man who subsequently developed post-procedure bleeding and infection leading to his death. Plaintiff’s counsel sought $1.2 million in damages on behalf of the decedent’s estate. 

The defendant gastroenterologist was represented by Lynsey Stewart and Richard Huettel of Cassiday Schade LLP.

Nicole Milos secures favorable ruling in the Illinois Appellate Court in a construction case limiting damages pursuant to Kotecki v. Cyclops Welding

The Illinois Appellate Court, First District affirmed rulings Nicole Milos of Cremer, Spina, Shaughnessy, Jansen + Siegert, LLC obtained through motion practice in favor of a subcontractor seeking to avail itself to the protection afforded by Kotecki v. Cyclops Welding. The plaintiff was injured while working for a subcontractor, third party defendant. The plaintiff filed suit against the general contractor who, in turn, filed a third party action against the subcontractor, employer. The work was performed pursuant to a contract. Ms. Milos argued that Estate of Willis v. Kiferbaum Constr. Corp., 357 Ill. App. 3d 1002 (1st Dist. 2005) decision was controlling. Analogous to Kiferbaum, there was a lack of explicit waiver language in the subcontract between the general contractor and the subcontractor; therefore, there was no Kotecki waiver. The appellate court agreed and affirmed the rulings entered by the trial court. The subcontractor’s liability without Kotecki protection would have exceeded $1 million.

Seventh Circuit Court of Appeals Affirms Summary Judgment Nicole Milos obtained for Retail Client in the Northern District of Illinois.

The plaintiff filed suit against a retail client after a fall in the parking lot. The plaintiff sustained significant injuries and, unfortunately, endured multiple complications resulting in medical expenses that exceeded $400,000. The plaintiff filed suit in Cook County. In light of the diversity of the parties, the matter was removed to federal court. After completing fact discovery, Nicole Milos of Cremer, Spina, Shaughnessy, Jansen + Siegert, LLC sought summary judgment based on the fact that the plaintiff’s theory of the case was based on speculation. The Northern District Court agreed and granted summary judgment. The plaintiff appealed. The Seventh Circuit entertained oral argument and ultimately affirmed the summary judgment granted by the Northern District Court. The Seventh Circuit held that the plaintiff’s case was based on speculation and the plaintiff failed to set forth sufficient evidence that the retail defendant breached a duty owed. The Court went on to conclude that there was no triable issue of fact as to whether the retail defendant had actual or constructive notice of the alleged dangerous condition.

O’Rourke Wins Directed Verdict For Triumph Community Bank

Lane & Waterman, LLP attorney Jason O’Rourke represented Triumph Community Bank in a lawsuit filed in Cook County, Illinois by a former employee seeking over $1.2 million in damages for bonuses he alleged he was not paid while employed, interest and attorneys’ fees. The Circuit Court in Cook County, Illinois entered judgment in Triumph’s favor when the former employee rested his case, holding that the employee knew he was not being paid bonuses and continued working for a number of years, therefore accepting the change in his compensation.

 

IDC In Action

IDC Social Link

We are very pleased to announce a new member engagement tool, IDC Social Link. Social Link allows all members to easily connect with fellow IDC colleagues, share information across the IDC network and manage your membership preferences.

Social Link allows you to login using the traditional method, but now you can also login using your Facebook or LinkedIn credentials. This means that it will be easier than ever for you to login, find members only information and engage immediately with your colleagues – all in a private space.

We have created a short video on IDC Social Link (http://bit.ly/IDCSocialLink) to help you get comfortable with this new member engagement tool. Please take time this week to login to www.iadtc.org and get involved with IDC Social Link. It promises to be a great resource for all IDC members.

Noteworthy

Armstrong Teasdale Named Best in Class for Diversity

Armstrong Teasdale LLP has earned a 2016 Best in Class Diversity and Inclusion award from client, Ameren. By selecting the firm, Ameren said it is recognizing AT for “outstanding diversity and inclusion efforts, including the services that you provide to Ameren, the work within your own firm and your contributions to the community at large.” The award was presented Nov. 30 and was accepted by Employment and Labor partner Jovita Foster, who chairs the firm’s Diversity and Inclusion Committee. 

Jana Brady Featured in Emerging Lawyers Magazine

Jana Brady of Heyl, Royster, Voelker & Allen, P.C. was recently featured in the inaugural issue of Emerging Lawyers magazine in a profile entitled “Conquering on Trails and in Fields of Law.” The article mentions Brady’s “stellar track record of trial success in defending doctors and nurses against claims of civil rights violations,” as well as her competitive spirit honed from “countless sprint marathons, Olympic triathlons and half marathons.” The article begins with the sentence, “Somehow, walking into a courtroom for a hearing isn’t quite as intimidating after you’ve run 30 miles.” The article goes on to talk about how Brady has used competitive running and biking as a confidence-builder, and characterizes her as a “responsive and effective” straight-shooter. In the article, Brady said she finds defending clients in civil rights/Section 1983 litigation in federal court particularly gratifying. “I feel that when I defend my clients, I’m helping further justice.” To read the full article, click here.

Clausen Miller Celebrates 80 Years of Client Service with Marked Growth and Expansion

Founded in 1936, this year marks the 80th year Clausen Miller, P.C. has been in business; growing from three founding partners and three associates to a leading Firm with over 100 attorneys practicing across the country.

Clausen Miller President Dennis Fitzpatrick said, “Clausen Miller is proud of its growth and our expanded ability to serve clients across the country and, through Clausen Miller International, around the globe.”

 

Headquartered in Chicago, the Firm maintains U.S. offices in New York, New Jersey, Indiana and Southern California. Clausen Miller LLP is located in London, England, in the heart of the global insurance market. Clausen Miller is also the founding member of Clausen Miller International, a cooperative of leading independent law firms with affiliates in Paris, Rome, Brussels, Dusseldorf and Berlin that practice in all aspects of insurance and reinsurance law.

DRI Publishes “The Associate’s Handbook”

DRI recently published "The Associate's Handbook". The Handbook provides advice on how young lawyers can make the most of their careers by showing them how to be better communicators, marketers and trial lawyers. It’s a “how to” – how to write better, how to get more involved, how to be a rainmaker and how to prepare every case as if it’s going to trial. It provides practical advice to help young lawyers avoid the pitfalls and obstacles of daily practice and excel at their firms. A link to the copyrighted book may be found here: http://bit.ly/DRIAssociatesHandbook. Our thanks to DRI for sharing this terrific resource with our members.

Gloor, Ellenbecker, Shear Join Johnson & Bell, Ltd.

D. Patterson Gloor, Stephen P. Ellenbecker and Steven M. Shear have joined Johnson & Bell, Ltd., where they will continue to handle mass tort, product liability and commercial litigation matters. All three attorneys previously were Partners at The Gloor Law Group and will join Johnson & Bell as Shareholders.

Heyl, Royster, Voelker & Allen, P.C. Relocating Office to Champaign

Heyl Royster will complete the relocation from its Urbana office to a new office in Champaign on January 3, 2017. The firm is moving from 102 E. Main Street in Urbana to a building known as “M2” located at 301 N. Neil Street in Champaign, IL.

“Heyl Royster has had an office in this area for 35 years, and we are proud of our longstanding commitment to our local clients, as well as the community overall. Although we will miss being in Urbana, the opportunity to move to an unfinished space designed to fit our needs and those of our clients was simply too good to pass up,” said office Managing Partner, Bruce Bonds.

Cecilia Horan Recognized With Advocate for Diversity Award

Hinshaw & Culbertson LLP is pleased to announce that attorney Cecilia A. Horan has been awarded the “Advocate for Diversity” award by the Diversity Scholarship Foundation (DSF). The award was established to acknowledge the efforts of individuals who have made significant contributions to the legal community, including embracing diversity and the ideals diversity represents.

The DSF is a not-for-profit organization that provides scholarships to diverse and deserving law students. It was established by a group of attorneys and judges committed to the ideal that diverse law school student bodies are a means of ensuring further diversification in the legal community. The DSF also provides free continuing legal education seminars (CLEs) on a variety of topics.

Horan concentrates her practice in the defense of cases involving personal injury, premises liability, products liability and the representation of insurance companies in determination of claims for coverage. Horan is also president of the Lesbian and Gay Bar Association of Chicago (LAGBAC), where she leads the Special Events Committee. 

Brad Keller Becomes Editor of DRI Trucking Newsletter

Brad Keller of Heyl, Royster, Voelker & Allen, P.C. was recently named the Newsletter Editor for the Defense Research Institute (DRI) Trucking Law Committee. Brad joined DRI in 2012 and has become very involved in the Trucking Law Committee in the past several years. In 2015 and 2016, he served as a New Member Guide for the Committee. He has also co-authored two articles published in DRI publications: “Review of Broker Liability” that appeared in For the Defense; and “The Truck Driver: Keeping Your Most Important Witness Engaged,” which appeared in DRI In Transit – The Newsletter for the Trucking Law Committee. Brad concentrates his practice on civil litigation defense, focusing primarily on trucking and transportation law.

Andrew Kopon Jr. Elected as Next President of the International Association of Defense Counsel

Kopon Airdo, LLC is pleased to announce that Andrew Kopon Jr. has been elected to serve as the next President of the International Association of Defense Counsel (IADC). For the past three years, Andy has served as a Member of the IADC’s Board of Directors. At its Annual Meeting on July 14, 2016, he was elected by the IADC membership to serve, first, in the position of President-Elect for the 2016-2017 Term. He will become President in July, 2017.

Mifflin Quoted in Chicago Lawyer Magazine

IDC President R. Mark Mifflin of Giffin, Winning, Cohen & Bodewes, P.C. was quoted in "Springfield Stalemate" from Chicago Lawyer Magazine. Here is the link to the piece: http://www.chicagolawyermagazine.com/Articles/2016/12/Springfield-stalemate-Dec16.aspx

 

Robert T. Park Receives the 2016 Board of Governors Award from the Illinois State Bar Association

The Board of Governors of the Illinois State Bar Association selected Robert T. Park of Califf & Harper, P.C. as a recipient of the Board of Governors Award in recognition of his exemplary service to the ISBA and the legal profession. The award was presented to Mr. Park by Past-President Umberto Davi and newly-installed President Vince Cornelius at the ISBA Annual Meeting during the Assembly Meeting on June 18, 2016 in Rosemont, Illinois.

 

Steven Puiszis Appointed Chair of DRI's Center for Law and Public Policy

At its annual meeting in Boston on October 22, DRI-The Voice of the Defense Bar named Steven M. Puiszis — partner and deputy general counsel of Hinshaw & Culbertson LLP in Chicago — to Chair its Center for Law and Public Policy, DRI’s research and advocacy center. Through scholarship, legal expertise and advocacy, the Center provides an effective voice for the defense bar in the national discussion of substantive law, constitutional issues, and the integrity of the civil justice system. Its voice is heard through public research materials, amicus briefs to the U.S. Supreme Court, the DRI National Poll on the Civil Justice System, objective counsel to policy makers, and public education initiatives. 

Puiszis has served DRI in various capacities, including as Secretary-Treasurer on DRI's board of directors, and chair of several DRI committees and task forces. He co-authored “The Economics of Justice” and served as the editor of “Without Fear or Favor,” two seminal research works of the Center addressing critical judicial independence issues, and the importance of fully funding of our state-court justice systems. 

Quinn Johnston Receives Outstanding Small Business Award

Quinn Johnston Henderson Pretorius & Cerulo recently received the Peoria Area Chamber of Commerce’s Outstanding Small Business Award. The honor, presented at the Chamber’s annual Thanksgiving Day luncheon, was based on several criteria including innovation, commitment to community and perseverance.

Martha Shaff Appointed Vice Chair of the American College of Trial Lawyers' Iowa State Committee

Betty, Neuman McMahon PLC is pleased to announce partner, Martha Shaff, has been appointed Vice Chair of the American College of Trial Lawyers' Iowa State Committee for 2016-2017. The American College of Trial Lawyers is an invitation only fellowship of exceptional trial lawyers of diverse backgrounds from the United States and Canada. The College thoroughly investigates each nominee for admission and selects only those who have demonstrated the very highest standards of trial advocacy, ethical conduct, integrity, professionalism and collegiality. The College maintains and seeks to improve the standards of trial practice, professionalism, ethics, and the administration of justice through education and public statements on important legal issues relating to its mission. The College strongly supports the independence of the judiciary, trial by jury, respect for the rule of law, access to justice, and fair and just representation of all parties to legal proceedings.

Willis R. Tribler

Willis R. (“Bill”) Tribler, a founding member and senior partner of the law firm of Tribler Orpett & Meyer, died early Saturday, December 3, after a brief hospitalization.

An unquestionably brilliant lawyer and strategic thinker, Bill Tribler was admired as a mentor and friend to hundreds in the legal community, not only in Chicago but throughout Illinois. Bill specialized in the defense of civil litigation. He was a renowned expert in the fields of professional liability and insurance coverage. Bill was very proud of being a lawyer and adhered to and championed the highest ethical standards. In keeping with those ethical standards, Bill served on the Attorney Registration and Disciplinary Commission (ARDC) Oversight Committee from 2004-2014, and on the ARDC Inquiry Board from 2004-2013. 

Although Bill practiced almost exclusively on the defense side, he had many friends among the plaintiff's bar as well. While a fierce advocate for his clients, Bill knew how to disagree without being disagreeable, and few were immune to his self-deprecating sense of humor and storytelling talents.

In addition to practicing law and assuming a leadership role within the law firm, Bill firmly believed in "giving back" to the legal profession. He was active in a number of legal organizations. For example, Bill was a prolific writer, teacher and speaker (for over 40 years) for the Illinois Institute for Continuing Legal Education (IICLE), publishing over 20 handbook chapters, serving as Board Chair (1992-1993) and was awarded the Addis E. Hull Award for his outstanding contributions. For the Illinois Association of Defense Trial Counsel (IDC), Bill initiated a scholarly publication (The Quarterly), served as its first Editor and continued writing a regular column for many years thereafter. In 1984-1985 he served as IDC President, and subsequently received its highest honors (the John E. Guy and Distinguished Member Awards) for his exemplary service. Bill was also honored by the IDC in 1999 for his exceptional efforts in compiling the 35-year history of the organization. Bill served in the Illinois State Bar Association (ISBA) General Assembly, was the Editor of the Illinois Bar Journal, and also received the ISBA's highest awards (the Medal of Merit and Laureate designation) for his many contributions. A proud graduate of the University of Illinois College of Law, Bill was later recognized as a Distinguished Graduate of the law school in 1996. He graduated from Bradley University in 1955, and in 2001 was honored with the Most Distinguished Alumni and Centurion Awards for his service to Bradley.

Julie Webb Appointed Family Mediator in Fourth Judicial Circuit

Ms. Julie Webb of Craig & Craig, LLC has recently been added to the list of approved family mediators in the Fourth Judicial Circuit. Family mediators who are either appointed by the Court or agreed upon by the parties conduct mediations with parties in disputed family cases to come up with a Parenting Plan which addresses parental responsibilities and parenting time. Julie has served as a mediator in the Second Judicial Circuit for a number of years.

 

September 2016


Defense Developments

 

Horstman and Dakich Obtain Appellate Decision Upholding Circuit Court’s Decision to Terminate Physician Respondent in Discovery Due to the Expiration of Time Provided by the Statute

James K. Horstman and Melissa Dakich of Cray Huber Horstman Heil & VanAusdal LLC’s appellate department won a victory on behalf of its client physician when the First District Appellate Court upheld the circuit court’s denial of the plaintiff’s motion to convert the physician from a respondent in discovery to a defendant. Michael D. Huber and Aimee K. Lipkis represented the respondent in discovery physician in the trial court and had him terminated as a respondent in discovery. The Appellate Court ruled that the circuit court had no authority to grant extensions past the time period specified in section 2-402 of the Illinois Code of Civil Procedure. Although not precedential, the Rule 23 Order provides sound guidance on the application of the statute governing respondents in discovery. Under the statute, a plaintiff has six months to convert a respondent in discovery to a defendant. The statute allows for one 90-day extension for good cause. After that, a court may grant additional extensions only “for a failure or refusal on the part of the respondent to comply with timely filed discovery.”

The plaintiff argued the circuit court had previously granted an extension beyond the statutorily imposed time limit because, at the time of the plaintiff’s additional extension request, there was outstanding discovery “as to” the respondent physician. According to the plaintiff, an extension was proper based on the failure of other respondents in discovery to comply with discovery. The Appellate Court rejected that argument and held that the statute specifically stated that a court could grant additional reasonable extensions under the statute only for a failure or refusal on the part of “the respondent” to comply with timely filed discovery. The record revealed that the respondent physician had timely responded to all discovery requests well within the statutory time frame.

Cray and Beringer Obtain Defense Verdict in $40 Million Quadriplegic Medical Malpractice Case

Daniel Cray and Benjamin Beringer of Cray Huber Horstman Heil & VanAusdal LLC successfully defended the actions of a neurologist and his employer in a medical malpractice suit brought on behalf of a patient rendered a quadriplegic by post-surgical complications. The injured plaintiff’s wife also sued after giving up her job to be her husband’s 24 hour a day attendant care giver.

Plaintiffs argued the neurologist failed to appreciate and act upon an emergency situation where plaintiff’s blood pressure was not perfusing his spinal cord. The Cray Huber attorneys argued that the lower blood pressure was not an emergency and was due to medications, including two narcotics. The defense also argued that the proximate cause of plaintiff’s quadriplegia was a rare and unpredictable reperfusion injury occurring after the acute decompression of the laminectomy.

The jury deliberated nine hours before rendering its verdict. Plaintiffs asked for $40,000,000, including almost $10,000,000 in past and future medical and $2,000,000 in future salary and benefits.

Fencl, McVisk and LeFevour Save Client $1.3M in Breach of Contract Dispute

Johnson & Bell, Ltd. Shareholders, Glenn F. Fencl, William K. McVisk and Genevieve M. LeFevour, received summary judgment in favor of their client in a complex, and hotly contested, breach of contract insurance dispute. By securing summary judgment in this breach of contract case, Johnson & Bell effectively saved its client, a private security company, $1.3 million. The breach of contract allegation arose with regard to the underlying case in which one individual was shot to death and a second individual was rendered a paraplegic in a grocery store’s parking lot. Johnson & Bell’s client was dismissed from the underlying case, having successfully argued that its contract was to only provide security services to protect the store property, not customers in the parking lot from criminal acts of third parties. Ultimately, the remaining parties settled the case for $3.9 million, with $1.3 million of that settlement being paid by the grocery store. Following the settlement, the grocery store sought reimbursement from Johnson & Bell’s client of the $1.3 million it paid for the settlement. The grocery store filed a breach of contract case against Johnson & Bell’s client, alleging that the private security company breached its contractual duties by not procuring insurance with a $2 million per occurrence limit. Johnson & Bell argued that the grocery store was not damaged by the alleged failure to procure $2 million in insurance coverage because the insurer which insured the private security company had not paid anything from its policy covering the security company to settle the case, so the fact that its limits were less than the agreed upon amount had no impact on the amount paid by the grocery store. The court agreed with Johnson & Bell’s argument and granted summary judgment, dismissing all of the grocery store’s arguments to the contrary.

Fencl Receives Summary Judgment In Construction Injury Coverage Dispute Seeking Recovery Of $1.6m

In a construction injury coverage dispute, Johnson & Bell, Ltd. Shareholder, Glenn F. Fencl successfully argued that his client’s duty to defend or indemnify a construction contractor as an additional insured was never properly triggered under the policy. Based on this condition, Mr. Fencl further argued that the construction contractor was therefore not entitled to potentially $1.6 million in coverage under his client’s policy. A Cook County court agreed with Mr. Fencl’s claims and granted summary judgment in favor of his client. This coverage dispute involved a serious injury at a construction site in 2007. In 2012, the construction company and its primary insurer agreed to a settlement of nearly $2 million. At the time of settlement the construction company and its primary insurer demanded that our client pay $1.6 million to them under an additional insured endorsement. After denying they demand on the basis that notice to the client was not reasonable, Mr. Fencl filed a declaratory judgment complaint asking the court to resolve the dispute. Mr. Fencl argued on summary judgment that the construction company breached its policy by not disclosing the nature, extent or potential liability associated with the construction site injury for nearly five years. In addition, Mr. Fencl argued that his client did not have actual notice that its policy covered or potentially covered the construction company with respect to the serious injury at the construction site. After oral arguments, the court agreed with Mr. Fencl’s client and granted summary judgment in his client’s favor.

Johnson, Mahony Secure Defense Verdict in $5M Wrongful Death Case Against Physician and Medical Group

Johnson & Bell, Ltd. Shareholder, Matthew L. Johnson, and Associate, Mackenzie J. Mahony, obtained a defense verdict in favor of a physician and his medical group in a wrongful death medical malpractice lawsuit seeking $5 million in damages. In this case, the patient suffered a sudden cardiac death just after exercising. He was 48 years old when he died. The allegation against the doctor was that he failed to timely test for and diagnose diabetes and high cholesterol, creating a high risk for a cardiac event. An autopsy of the patient revealed that he had two arteries that were over 90 percent blocked with plaque, which plaintiff argued was caused by four years of untreated high cholesterol and diabetes. Plaintiff's attorney sought $5 million in loss of society and grief damages for the patient's two children. The defense argued that the doctor's care over the years met the standard of care. He appropriately treated the patient's hypertension, and promptly diagnosed diabetes after the patient presented with symptoms a few weeks before his death. The defense presented experts in internal medicine and cardiology who both testified the sudden cardiac death would probably not have been avoided even if the patient was on an anti-cholesterol medication beginning in 2009. After three hours of deliberation, the jury returned a verdict for the defense. ST et al v EH, MD, 2013 L 003040, Hon. Judge Daniel M. Lynch (Cook Co., IL)

Maddox, Chaddock and Estes, Placher Secure Defense Verdict

Matthew Maddox and Adam Chaddock of Quinn, Johnston, Henderson, Pretorius & Cerulo tried a medical negligence lawsuit in Jacksonville, Illinois commencing on August 23, 2016. Matt and Adam represented a local family practitioner. Paul Estes and Jesse Placher of the Peoria office of Hinshaw & Culbertson, LLP represented an ENT as a Co-Defendant. The Plaintiff alleged that the Defendants delayed the diagnosis of thyroid cancer. The patient died of the cancer leaving four adult children, one of whom was disabled and dependent upon his mother for his daily care. The plaintiff’s attorney asked the jury to award $7,500,000. After six days of evidence and three hours of deliberation, the jury returned a verdict in favor of both physicians.

Marconi, Pioli, Ryndak and Sukovic Secure Defense Jury Verdict in $4 M Patent Infringement and Trade Secret Case

In a major defense jury verdict in Chicago Federal court on Friday, June 24, 2016, Johnson & Bell’s Commercial Litigation team of Joseph R. Marconi, Victor J. Pioli, Peter R. Ryndak and Miles Sukovic successfully defended Crimson AV, LLC against charges of patent infringement and misappropriation of trade secrets. In a case tried to a jury and presided over by Judge Joan H. Lefkow, Johnson & Bell represented Crimson AV, a small manufacturer and distributor of television wall mounts based in Glenview, IL that was sued by Peerless Industries, Inc. Peerless Industries claimed that Crimson AV’s wall mount design infringed its patent and further claimed that the company had misappropriated its trade secrets obtained while Crimson AV’s Chinese supplier had previously served as a manufacturer for Peerless Industries. The Johnson & Bell trial team had to overcome a prior ruling by the court that Crimson AV’s products infringed the plaintiff’s patent, leaving Johnson & Bell to prove that the plaintiff’s patent was invalid. In addition, the court entered a discovery sanction against Crimson AV that shifted the burden of proof on the trade secrets claim. After two weeks of trial, the jury deliberated for two days and returned a verdict finding the patent invalid and finding no trade secrets were at issue. Peerless Industries sought over $4 million in damages plus fees. Peerless Industries was represented by Foley & Lardner.

“We faced a daunting challenge to win this case given the court’s prior ruling and the discovery sanction against our client,” stated Joseph R. Marconi, a Shareholder at Johnson & Bell, Ltd. and the lead trial attorney. “We simply presented a more compelling case that the jury obviously understood, believed and agreed with. It’s a great outcome for Crimson AV,” he said.

McVisk, Buishas Prevail in Coverage Dispute Before Illinois Appellate Court

Johnson & Bell, Ltd. Shareholder William K. McVisk and Associate Amanda M. Buishas prevailed in an insurance coverage dispute before the Fifth District Court of Appeals, which affirmed the trial court's grant of summary judgment. The plaintiff was seriously injured in an accident with an underinsured motorist while in the course of his employment. The at-fault driver had only $50,000 in coverage. His employer's insurer carried both the worker's compensation and UIM coverage. The plaintiff claimed that his injuries were so serious that he was entitled to the full $1 million Limits of the UIM policy, despite having already recovered approximately $200,000 for the worker's compensation policy.

The court of appeals rejected this argument, holding that under the plain language of the policy, the workers’ compensation payments had to be deducted from the policy limit of the UIM coverage, rather than from the plaintiff's damages, which exceeded $1 million. The court agreed with the defendant's argument that when read as a whole, the meaning of the policy was clear and unambiguous. Further, the Court also agreed with the defendant's argument that UIM coverage is “gap” coverage, designed to place the injured person in the same position as he would have occupied if the at-fault motorist had the same insurance coverage as the insured.

Weber v. Mitsui Sumitomo Marine Mgmt. (USA), 2016 IL App (5th) 140517-U (Ill. App. Ct. 5th Dist. 2016).

Pomatto and Denning Obtain Defense Verdict

Doug Pomatto and Mike Denning of Heyl, Royster, Voelker & Allen, P.C.’s Rockford office tried a case in which the firm defended a family practice physician in a wrongful death lawsuit that was brought by the widow and four children of a 45 year-old non-smoker. The lawsuit claimed that the family practice physician failed to diagnose the patient/decedent’s lung cancer. Based on the patient’s clinical presentation, pulmonary function test, and response to asthma medications, the defendant physician diagnosed the patient/decedent with asthma in January of 2009. In January of 2010, the patient went to the Mayo Clinic on self-referral and was diagnosed with stage IV lung cancer with metastasis to the brain. He underwent chemotherapy and radiation but ultimately passed away in 2015 as a result of lung cancer. Plaintiff sought recovery for survival damages, loss of consortium and wrongful death, and at the end of a more than two-week trial, plaintiffs asked for an itemized verdict of approximately $10.2 million. The jury deliberated for less than two hours before returning a verdict for the defense.

Pomatto and Stockwell Successfully Defend Surgeon

Doug Pomatto, Managing Partner of the Heyl, Royster, Voelker & Allen, P.C. Rockford office, was the lead attorney, and Kathy Stockwell second-chaired, a jury trial in DeKalb County, IL in which the firm successfully defended a surgeon in a death case alleging medical malpractice. The decedent in the case had a history of Inflammatory Bowel Disease, and had been admitted to a community hospital via the Emergency Room with complaints of abdominal pain, bloody diarrhea, nausea, and vomiting, and claiming she had a 114 degree fever. She was evaluated by a co-defendant doctor who ordered an abdominal CT scan and a surgical consultation from the firm's client, who ultimately determined that the patient did not require surgical intervention. On the second day of her admission, Decedent suddenly became unresponsive; a Rapid Response was called, which was converted to a Code Blue. Although Decedent was resuscitated, she suffered brain death. She died after the family decided to remove life support. The diagnosis of the death was C.Difficile colitis with sepsis. Plaintiffs alleged that both defendants failed to timely diagnose the colitis, failed to properly monitor the patient, and that the firm's client failed to perform a colectomy that would have saved Decedent's life. At trial, the plaintiffs asked the jury for $8 million. After two hours of deliberation, the jury returned a complete verdict in both doctors' favor.

An interesting element of the case related to the plaintiff's litigation strategy – which revolved around a claim that there were violations of nine recognized "safety rules" – a tactic consistent with what is known as the “Reptile Theory.” Such an approach is used to advance the argument that the defendant ignored well established principles designed to keep the patient “safe,” and thereby subjected the plaintiff, and the community, to needless danger. The goal of this approach is to trigger a reptilian-like response in the minds of the jurors dictating that in addition to making financial compensation by their verdict, the jurors should deter similar “unsafe” conduct by the offender in the future. Pomatto and Stockwell were able to counter this trial strategy by highlighting the complicated, yet necessary, risk-benefit analysis that medical professionals must often make, and the theme that doctors don't treat patients with rules, but that they are often called on to exercise reasonable, clinical judgment based on the circumstances.

Sinn and Pratt Obtain Defense Verdict

Dave Sinn and Tyler Pratt of Heyl, Royster, Voelker & Allen, P.C.’s Peoria office defended a gastroenterologist at jury trial in a case in which a 58 year-old female suffered a perforation of the esophagus 20 minutes after being dilated by the defendant gastroenterologist. The plaintiff alleged that the defendant gastroenterologist chose too big of a dilator to dilate her peptic stricture. The plaintiff subsequently underwent a thoracotomy to repair her esophagus and then slipped into a coma for two months. The total of plaintiff’s paid medical bills was $350,000. The plaintiff’s demand prior to trial was $650,000. At the end of the five-day trial, the plaintiff’s attorney asked the jury for “whatever is reasonable,” and the jury returned a defense verdict after 45 minutes of deliberation. 

 

IDC In Action

Amicus

The IDC has filed (or will soon be filing) an amicus brief in:

Noteworthy

Bertocchi Discusses Significance of U.S. Supreme Court Decision in McDonnell v. U.S. With The New York Times

Hinshaw & Culbertson LLP partner Joel D. Bertocchi provided insights to The New York Times on the significance of the U.S. Supreme Court's decision in McDonnell v. United States, No. 15-474 (June 27, 2016). In an 8-0 decision, the Court in McDonnell threw out the conviction on corruption charges of former Virginia Governor Bob McDonnell.

Mr. Bertocchi's comments were included in the article, "Supreme Court Complicates Corruption Cases From New York to Illinois," which was published on June 27, 2016. While many observers believe that the high court's opinion will raise the bar to prove corruption by public officials, Mr. Bertocchi "cautioned against overstating the impact of [the] ruling." He elaborated, "Having the same set of facts, they may be able to file different charges."

To read the full article, "Supreme Court Complicates Corruption Cases From New York to Illinois," visit The New York Times website.

State Proclamation Honors Bertschy as Founding Trustee of Illinois Equal Justice Foundation

Heyl, Royster, Voelker & Allen, P.C. Managing Partner Tim Bertschy’s role as a Founding Trustee of the Illinois Equal Justice Foundation (IEJF) was recognized by Illinois Governor Bruce Rauner in a state proclamation dated June 30, 2016. The proclamation honors Bertschy and co-Founding Trustees Michael Pope and Christine Ory for the vital roles they have played in increasing access to the civil justice system in Illinois. Illinois Attorney General Lisa Madigan was the keynote speaker at a private ceremony that commemorated the proclamation. IEJF was founded in 1999, and all three Founding Trustees joined the first IEJF Board that same year. Mr. Bertschy served two terms as IEJF President and oversaw the hiring of its first full-time Executive Director.

The IEJF funds civil legal aid programs across the state ensuring all residents, regardless of income, have equal access to the justice system for acute matters like domestic violence, foreclosure and financial exploitation. Since its first grant cycle in 2001, the IEJF has awarded over $23.3 million in grants to nonprofit legal aid providers.

Galanos Selected By The Springfield Business Journal As One Of The Forty Under 40 Honorees

Jessica Galanos, attorney in HeplerBroom’s Springfield office, was selected as part of the Springfield Business Journal’s 2016 Forty Under 40. The article can be viewed here.

Springfield Business Journal’s “40 Under Forty” edition features 40 leaders who are under the age of 40 in the Springfield and neighboring business communities. According to the magazine, “[t]hese individuals are selected based on their contributions to our local business community and the community in which they reside. They represent, in part, the future of business in our community and in central Illinois.” http://springfieldbusinessjournal.com/awards-program/40-under-forty/

Heyl, Royster, Voelker & Allen Women’s Forum Builds Homes with Habitat for Humanity

On August 20th, members of Heyl Royster’s Women's Forum participated in a Habitat for Humanity “Women Build” event. Lisa LaConte, Deb Stegall, Beth Jensen, Chrissie Peterson, Dana Hughes, Emily Perkins, LaVerne 'Roz' Armijo, and Caterpillar guest Stacy Crabtree all participated in the four-hour build. Lunch was provided by Heyl Royster. The women installed dry wall in the walls of the main level bathroom, the kitchen, and living room as well as the ceiling upstairs. The house, located in downtown Peoria, is expected to be finished by September 9th.

Recognizing that women face unique challenges in the practice and business of law, Heyl Royster formed the Women's Forum, a firm-wide initiative designed to foster, highlight, and promote our women attorneys.

Ludolph Named Vice-Chair of DRI Commercial Litigation Online Community

Mark Ludolph of Heyl, Royster, Voelker & Allen, P.C. was recently appointed Online Community Vice-Chair for DRI’s Commercial Litigation Committee. DRI (Defense Research Institute) is an international membership organization of lawyers involved in the defense of civil litigation. The Commercial Litigation Committee is DRI's fifth-largest substantive law committee and it encompasses everything from business torts to antitrust to class actions.

Richards-Yellen Quoted in Article on the Disadvantages Women Face in the Legal Field

Hinshaw & Culbertson, LLP's Chief Diversity and Inclusion Officer and Chicago partner, Leslie Richards-Yellen was quoted in the article, "Obstruction in Justice: Pay Gap, Undervalued Skills Quickly Thin Female Lawyer Ranks," published by The Denver Post on May 29, 2016.

The article discusses the current trend of female attorneys being paid less than male attorneys, and the decreasing number of women in the legal field in Colorado. Ms. Richards-Yellen comments that the systemic issues in the structure of private firms and how certain skill sets are valued have stifled women’s advancement in private firms and she states "There are a lot of systemic issues and biases at play that make it harder for women attorneys to advance." Ms. Richards-Yellen also discuses how research has shown that this is a result of an unintentional bias known as in-group favoritism where men are promoted to leadership roles in firms and can subconsciously favor the men below them.

Read the full article "Obstruction in Justice: Pay Gap, Undervalued Skills Quickly Thin Female Lawyer Ranks" on The Denver Post website.

Harris Sperry Elected Illinois Appellate Lawyers Association Treasurer

Gretchen Harris Sperry, a Chicago-based partner in the Government Practice Group at Hinshaw & Culbertson LLP, has been elected Treasurer of the Illinois Appellate Lawyers Association (ALA). Her term began June 24, 2016.

Long an active ALA member, Ms. Sperry is the Co-Chair of the association's Cases Pending publication and has been actively involved in its Seminars Committee. In addition to the ALA, Ms. Sperry serves on the Illinois Supreme Court Committee on Character and Fitness by appointment of the Court and is active in the Women's Bar Association of Illinois.

 

February 2016


Defense Developments 

Champlin Obtains Summary Judgment 

Matthew Champlin of HeplerBroom LLC recently obtained summary judgment in favor of his client in Williamson County, Illinois. The client was a subcontractor on a construction project in Southern Illinois. The subcontractor was sued by the project’s general contractor for contribution in an underlying personal injury case. Champlin successfully argued that the general contractor’s claims were barred by the applicable statute of limitations. The court agreed, and granted summary judgment to HeplerBroom’s client.

Fencl, MacMillan Obtain Summary Judgment in Insurance Coverage Case Seeking $2M

Johnson & Bell Shareholder, Glenn F. Fencl, and Associate, Anne P. MacMillan, obtained summary judgment on behalf of an insurance carrier and it’s insured, a national trucking company, in a wrongful death/declaratory judgment case. The plaintiff’s widow, who sought $2 million in damages, claimed that her husband, an independent truck driver, was entitled to damages and Underinsured Motorists benefits (UIM) under a policy issued by the insurance company to the trucking company and its newly acquired affiliate. The plaintiff’s decedent was driving for the affiliate at the time of a fatal accident caused by an underinsured motorist. Prior to the accident and prior to the acquisition of the new affiliate, the trucking company had rejected UIM coverage or selected each states’ minimum if it was required by law.

The plaintiff’s widow claimed that because the rejection forms were not signed by the new company and not received by the insurance company prior to his death, that Illinois and Kansas law mandated that there be limits equal to the liability limits, which was $2 million. The insured trucking company was at risk as it had a $500,000 self-insured retention.

Mr. Fencl and Ms. MacMillan argued that the prior rejection during the policy period applied to the newly added insured. Further, they argued that there was no requirement for the acquired third-party transportation provider to re-reject coverage once it was added by endorsement to the existing policy. After two years of depositions, motions, and highly contested hearings, the court ultimately granted summary judgment for both the insurance company and the transportation insureds.

Defense Verdict for Chicago Police Officer in $15M Wrongful Death Case

In a wrongful death case seeking $15 million in damages against a Chicago police officer, Johnson & Bell Shareholder, Brian P. Gainer, and Associate Attorneys, Anne P. MacMillan and Monica Gutowski, secured a defense verdict in favor of their client. In this case, the plaintiff alleged that a Chicago police officer shot and killed the decedent without legal justification. Moreover, the plaintiff charged that the gun recovered by the police at the scene was “planted” to justify the shooting. After a two-week trial, plaintiff’s counsel asked the jury for $15 million. The jury deliberated for eight hours before returning a defense verdict.


Maddox, Galanos Secure Defense Verdict in Premises Liability Case 

Matthew J. Maddox and Christopher D. Galanos of Quinn, Johnston, Henderson, Pretorius & Cerulo secured a defense verdict in a Morgan County premises liability claim in which the Plaintiff sought $2.7 million dollars. The Plaintiff claimed to have tripped over a displaced area of asphalt in Defendant’s parking which caused him to fall and sustain life threatening injuries. The undisputed medical bills totaled in excess of $700,000. The Defense argued that the Plaintiff failed to establish that the fall occurred as a result of the alleged defect and, alternatively, that the alleged defect in question was not unreasonably dangerous. After a four day trial the jury deliberated for approximately two hours before returning a defense verdict.

Haynes, Studnicka, Kahan, O’Neill & Poulakidas Secures Back-to-Back Summary Judgment Victories on Behalf of Local Grocers

Attorneys James Studnicka and John Racanelli recently had summary judgment motions granted in premises liability cases filed against a pair of retail grocery chains. The first motion, granted by the Federal Court for the Northern District of Illinois, involved a woman who claimed to have slipped on liquid near the checkout area of a local grocery store. Although she did not fall, plaintiff claimed to have suffered immediate searing pain in her left buttock as a result of the occurrence. An MRI reportedly showed a multiple-tendon rupture of the left proximal hamstrings. The plaintiff continued to complain of ongoing pain at the time of her deposition. Security camera footage of the area of the occurrence appeared to show a customer having purchased bags of ice about twenty minutes before the occurrence. However, a former employee testified at his deposition that he had just completed an inspection of the area about ten minutes prior, as shown in the video, and there was no water on the floor at that time. In the written opinion, the District Court Magistrate Judge noted that plaintiff’s theory that the water originated from a bag of ice was speculative, at best, and found that the store’s policies for periodic floor inspections and handling wet items at checkout were reasonable. Because plaintiff was not able to demonstrate that the store caused the water to be on the floor or had actual or constructive notice of its presence, summary judgment was granted. The second motion, in the Circuit Court of Cook County, involved two men who claimed to fall in rapid succession on a cooking oil spill in the cereal and coffee aisle at the grocery store. Store personnel initially found the claim to be suspicious due to the strange way in which the men were acting at the scene. Additionally, the source oil bottle was found upright on a nearby shelf, the cap was intact on the floor and the foil seal was missing completely from the bottle, suggesting that the bottle had been opened intentionally. As a result of the fall, one plaintiff claimed to have injured his back and have lost consciousness. He was admitted to the hospital for observation based on the closed head symptoms he described. The other plaintiff claimed back and leg injuries. The men each claimed significant lost time from their jobs as livery drivers. Ultimately, the Court found that the plaintiffs failed to submit any evidence to demonstrate that the store caused or had actual or constructive notice of the oil spill.

Postel Wins Summary Judgment For Homeowners’ Insurer In Negligent Supervision Case Against Wife Whose Husband Sexually Abused Step-Great Granddaughter

Metropolitan Cas. Ins. Co. v. Donnelly, United States District Court, Southern District of Illinois, case no. 15 C 328 (Feb. 1, 2016). Joe Postel of Lindsay, Rappaport & Postel, LLC  won summary judgment in federal court for Metropolitan Casualty Ins. Co. (“Met”) in a declaratory judgment action pertaining to a sexual abuse case. The insureds on Met’s homeowners’ policy were James and Gloria Donnelly. James was convicted in Madison County and imprisoned for predatory sexual abuse of his step-great granddaughter, Jane Doe, who was under the age of 13. Jane and her mother Mary Doe filed a civil suit in Madison County against James and Gloria. Coverage for James was not contested, as it is well settled that as a matter of law, an insured expects or intends harm when he sexually abuses a minor, thus triggering the policy exclusion for expected or intended injury. The dispute was over coverage for Gloria, who was sued for negligent supervision. The Does’ attorney omitted from his complaint any allegation that Gloria knew about any prior sexual abuse of Jane Doe by James, apparently hoping to avoid triggering Met’s exclusion for expected or intended injury. In his MSJ, however, Postel argued that whether the complaint alleged it or not, the fact is that in order to prevail at trial, the Does would have to prove that Gloria knew about specific conduct of James in the past that would put her on notice of the need to supervise James, and that proof of this element of the tort of negligent supervision would necessarily also prove that she had reason to expect this type of injury to Jane Doe; therefore, Met’s exclusion for expected or intended injury applied. The court agreed with Postel’s argument and granted the motion, finding and declaring that Met has no duty to defend or indemnify Gloria. The court stated as follows: “In order to prevail in the state complaint as to [the negligent supervision claim against Gloria], the [Does] must necessarily prove the first prong of the negligent supervision standard—Ms. Donnelly’s awareness of any prior conduct by Mr. Donnelly sufficient to put her on notice that further abuse was likely to occur. In doing so, the [Does] will have proven facts that demonstrate that the loss is outside the coverage of the insurance policy and therefore there is not a duty to defend.”

Spitzzeri Secures Dismissal of Whistleblower Case

Johnson & Bell Shareholder, Joseph F. Spitzzeri, secured the dismissal of a whistleblower case against his client, a multinational retail company. The complaint was filed with the Occupational Safety and Health Administration (OSHA) by a former employee, who alleged that he was terminated for raising concerns to management about the failure to follow company protocol and federal regulations relevant to the company’s business. Mr. Spitzzeri asserted that his client terminated the former employee for making an inappropriate comment regarding a coworker’s sexual orientation, which is in violation of the company’s Equal Employment Opportunity policy. After its investigation, OSHA dismissed the complaint after finding no reasonable cause to believe a violation existed of the Consumer Product Safety Improvement Act and other federal regulations and statutes.

Spoliation Claim Against Insurer Dismissed Under Statute Of Limitations

Richard Waris, Brendan Nelligan, and Donald Patrick Eckler of Pretzel & Stouffer, Chartered recently secured a significant victory for an insurance client that was directly sued for spoliation and, in the process, made new law regarding the applicable statute of limitations for such claims.

The underlying dispute arose out of an automobile accident in which the client's insured is alleged to have caused the death of a mother and injury to her minor child. After four and a half years of litigation against the insured, the plaintiff filed a spoliation claim against the insurer for destruction of the insured vehicle. The Pretzel & Stouffer lawyers filed a motion to dismiss based upon 1) the absence of a duty and 2) breach of the applicable statute of limitations. They argued that the applicable statute of limitations was the two year personal injury statute and not the five year catch-all/property damage statute.

The trial court dismissed the case with prejudice, finding that no duty was owed by the insurer to the plaintiff, whom it did not insure. However, the court rejected the statute of limitations argument and held that the five year statute of limitations applied.

The plaintiff appealed to the Illinois Appellate Court, Second District, which affirmed the dismissal by finding that the applicable statute of limitations was the two year statute. The court held that a claim for spoliation is derivative of the claims that underlie it. In so holding, the court found that, because the two year statute of limitations applied to all of the plaintiff’s injury claims brought by the plaintiff against the other defendants, the plaintiff's claim against the insurer was not timely. The court further held that the discovery rule applied, but since the plaintiff had not pled any facts to show that she could not have filed the case timely, the dismissal was affirmed.

This case was a significant victory for the firm's client as well as for all insurers in Illinois. First, it rejected a holding from the Illinois Appellate Court, First District, that held that the five year statute of limitations applied to spoliation claims. Second, this decision held that the discovery rule applied, which was entirely new in Illinois. Finally, and most importantly, a decision against the insurer might have required insurers to preserve vehicles in nearly every accident claim. Such a result may have greatly increased claim handling expense, and raised insurance rates by preventing insurers from selling vehicles for scrap and incurring significant vehicle storage fees.


IDC In Action

Amicus

The IDC has filed (or will soon be filing) an amicus brief in:

Legislation

The IDC Legislative Committee is monitoring a number of bills during this Spring Session of the Illinois General Assembly. To view the list and learn more about the legislation, please follow this link.

 

Noteworthy

Bailey Honored as a 2015 “Pro to Know” by Automatic Merchandiser

Automatic Merchandiser and VendingMarketWatch.com recently announced its Pros to Know Award, which accredits vending, micro market and office coffee service professionals who are confirmed leaders in the field. SmithAmundsen LLC is proud to announce that partner, Heather Bailey, was one of the recipients of the 2015 honor. Awardees include: vending operators, marketers, manufacturer representatives, brokers, micro market teams, techies and entrepreneurs. 2015 Honorees were chosen from a pool of more than 115 applicants. Heather has more than 14 years' experience concentrating her practice in employment and labor litigation. Heather has been a NAMA Knowledge Source Partner for over a decade, was named one of the Chicago Business Journal's Women of Influence, is the president of the Professional Women's Club of Chicago and was selected to the Illinois Super Lawyers list in 2014 and 2015.

Bertocchi Interviewed by Fox32 Chicago

Hinshaw & Culbertson LLP partner Joel D. Bertocchi was interviewed for a Fox32 Chicago story on the status of former Illinois Governor Rod Blagojevich's appeal to the U.S. Supreme Court of his conviction on several corruption charges. The recent death of U.S. Supreme Court Justice Antonin Scalia may have changed the odds of the high court taking up the appeal. Mr. Bertocchi noted that Justice Scalia "was very strong on enforcing the rights of criminal defendants" and that "the Blagojevich petition would have benefited from that." So, he said, "I think there's a good argument to be made that [Justice Scalia's death] was really a loss for [Mr. Blagojevich]." Mr. Bertocchi — leader of Hinshaw's Appellate Practice, which achieved a Tier 1 national ranking in the 2015 and 2016 editions of U.S. News – Best Lawyers' "Best Law Firms" — is an experienced civil, criminal and appellate litigator. He has served as an Assistant U.S. Attorney investigating and prosecuting federal criminal cases, and also as Illinois Solicitor General. Mr. Bertocchi has litigated in courts ranging from the trial level to the U.S. Supreme Court. To view the full piece "Would a President Trump Commute the Sentence of Rod Blagojevich?," visit the Fox32 Chicago website.

HeplerBroom LLC Elects Partners

Matthew Champlin, Michael Chessler, Carolyn Husmann, Matthew Noce, Benjamin Powell, Eric Rosser and Jill Sundberg have been elected partners of HeplerBroom LLC. Champlin, Chessler, Powell, and Rosser practice in the Edwardsville office. Husmann, Noce and Sundberg practice in the St. Louis office.

HeplerBroom Adds an Insurance Coverage and Municipal Liability Practice Group To Its Chicago Office

HeplerBroom, LLC is pleased to announce the expansion of its Chicago office through the recent addition of partners Rick Hammond, Eric Moch and Isaac Melton, and associates Gabriel Judd, James DuChateau and David Albaugh. Messrs. Hammond, Moch and Melton, along with the associates who accompanied them are accomplished and seasoned trial attorneys who have argued and tried cases in numerous State and Federal jurisdictions. In addition to a well-established government and municipal liability practice, they also bring a robust, insurance coverage practice where they represent some of the Country’s largest property and casualty underwriters in the Midwest and Mountain West. Their insurance litigation expertise includes the handling and resolution of bad faith and extra contractual liability matters, first-party coverage issues such as Arson, Fraud, Fidelity, Employee Dishonesty, Negligent Construction, Roof and Hail Damage and Intentional Acts, and third-party party insurance issues, including Commercial General Liability, Organized Activity, Staged and Caused Losses and Medical Fraud.

Ludolph Publishes Article

Mark Ludolph of Heyl, Royster, Voelker & Allen, P.C. published an article entitled "Seven Things Business Owners Need to Know About Bankruptcy Preferences" in the February issue of the Central Illinois publication InterBusiness Issues (iBi). The article explains how payments received from a debtor in bankruptcy within 90 days before the filing of the bankruptcy may qualify as a "preferential transfer," and how creditor/businesses might respond. Ludolph is the Chair of Heyl Royster's Creditors' Rights and Bankruptcy Practice Group.

Marick Discusses His Inspiration for Becoming an Insurance Coverage Lawyer

Michael M. Marick, a Chicago-based partner in the Insurance Services group at Hinshaw & Culbertson LLP, was quoted in the article “How Do I Love Coverage?: Some of the Nation’s Leading Coverage Lawyers Count the Ways,” published by Coverage Opinions on February 10, 2016. Michael Marick is one of a select few of the nation’s leading coverage lawyers that answered a simple question, “Why do you love being an insurance coverage lawyer?” 

 

Michael Marick has successfully represented property and casualty insurers in high exposure disputes over coverage at the claim stage, in trial courts, and on appeal. Mr. Marick’s successes inside and outside the courtroom are based on a deep understanding of the insurance business — from the claims, underwriting and legal perspectives.


Bertschy & Redlinshafer Recognized

On December 13, Tim Bertschy and John Redlingshafer of Heyl, Royster, Voelker & Allen were recognized by the Peoria County Township Officials Association at its annual Christmas Dinner. Every year, the Association announces an award for those who go above-and-beyond in helping to "tell the Township story." This year, the Association selected Bertschy and Redlingshafer as they continue to demonstrate their "dedication, support, and enduring belief in the value of township government."

Neal Gerber Eisenberg Celebrates 30th Anniversary; Makes $30,000 Donation to All Stars Project of Chicago

To commemorate its 30th anniversary, Neal, Gerber & Eisenberg LLP is pleased to announce it has made a $30,000 donation to All Stars Project of Chicago.
The All Stars Project (ASP) is a national nonprofit organization that provides innovative, performance-based afterschool development opportunities to inner-city youth in partnership with caring adults. In Chicago, the program directs its efforts toward young people on the city’s south and west sides.

Neal Gerber Eisenberg has had a close connection with ASP of Chicago from the very beginning—the chapter was founded in 2007 under the direction of former Neal Gerber Eisenberg employee, David Cherry, who currently serves as City Leader of the ASP of Chicago.

ASP of Chicago will use the donation to expand its Development School for Youth (DSY) program, which partners with members of Chicago’s business community who conduct workshops and place inner-city youth in paid summer internships that help them learn to perform as professionals in the business world. It is a program Neal Gerber Eisenberg has proudly participated in for the past 5 years. 

 

Richard Stites Achieves Senior Fellow Status with LCA

Richard E. Stites of Livingston Barger Law Firm, long a Fellow with Litigation Counsel of America, was recently advised that he had achieved Senior Fellow status with the Society. This is a permanent designation. The LCA is a trial lawyer honorary society composed of less than one-half of one percent of American lawyers. Fellows are selected based upon excellence and accomplishment in litigation, both at the trial and appellate levels, and superior ethical reputation. Senior Fellow status in the society is reserved for advanced commitment to and support of the LCA, Diversity Law Institute and Trial Law Institute.

Thomas, Mamer & Haughey, LLP Celebrates 70 Years of Service in 2016

Founded in 1946 by attorneys James G. Thomas and Wallace Mulliken, the law firm of Thomas, Mamer & Haughey is celebrating 70 years of service this year.

Tressler LLP Announces Strategic Business Alliance

Tressler LLP announced the formation of a strategic business alliance with Chatt & Prince P.C., which will support Tressler’s Bolingbrook-based Condominium and Common Interest Community Association Law and HOA practice. Their firm is well known for its proficiency in the areas of collections, governance, document review and revision, and associated litigation.

Rich Valentino Presented with Golden Gavel Award

Rich Valentino of SmithAmundsen, LLC was recently presented with a Golden Gavel Award by Bob Hunt of Westfield Insurance Company.

The Golden Gavel program was designed by Westfield to recognize outstanding achievements by its outside counsel. Nominations for the award are submitted by Westfield Claims Professionals to the Claims Legal Unit for consideration.

 

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