Chicago Accident and Injury Lawyer Blog

We are deeply saddened by the sudden loss of our friend, John T. Karnezis, who passed away at the young age of 44 on October 24, 2010. John was the husband of Dena Turnquist Karnezis, Jeff’s legal assistant for 14 years, and a great friend. John is survived by his wife and two beautiful, healthy 11-month old twin boys. John was a partner at the personal injury law firm, Pullano & Karnezis, P.C. Jeff, Heather, Denise Maske and Denise Giuntoli worked with John at Clifford Law Offices. We have many happy memories of this wonderful person who was smart, generous, talented and had an incredible wit. We will miss you, John. Our thoughts and prayers go out to Dena and their families.

A plaintiff bringing a medical malpractice lawsuit in Illinois must file a report from a health care professional attesting to the merit of the plaintiff's claims, pursuant to 735 ILCS 5/2-622. The report is generally filed at the time the complaint is filed; however, there are grounds under which extensions are granted. In Knight v. Van Matra Rehabilitation Center, LLC, et al., No. 2-09-1127, September 29, 2010, a plaintiff filed a medical malpractice action and 98 days after the plaintiff filed her complaint, defendants moved to dismiss plaintiff's complaint because plaintiff failed to file her health care professional's report. A few days later, plaintiff moved for additional time and then filed the report without leave of court.

On February 4, 2010, the Illinois Supreme Court decided that Public Act 94-677, which limited the recovery of noneconomic damages in a medical malpractice action was "invalid and void in its entirety." Thus, the statute reverted to the language it contained prior to the amendment. Not only are the caps on non-economic damages invalid, but also the prohibition of an additional 90-day extension for the filing deadline of a 2-622 health care professional's report.

In Knight, the Second District Appellate Court of Illinois, remanded the medical malpractice case back to the trial court to consider whether plaintiff should have extra time to file the health care professional's report that was filed without leave of court and more than 90 days after the complaint was filed.

In my opinion, fairness demands that the plaintiff be allowed to file the health care professional's report. Illinois personal injury attorneys practicing in the medical malpractice area should keep in mind the importance of getting leave of court in the event that additional time is needed to obtain and file a 2-622 report.

Facebook now reaches over 500 million users. The movie "The Social Media," is a big hit. It isn’t hard to figure out that it has become relatively easy to find very personal information about almost everyone, including perspective jurors. This is a fact; and, there’s no turning back.

Open the browser on your smart phone during voir dire and voilà: you might be lucky enough to uncover an enormous amount of juror information, including race, religion, political proclivities, and philosophical tendencies. Off-color and forbidden topics? Yes, perhaps that too.

So, should lawyers be allowed to research jurors in the courtroom? In Carino v. Muenzen, 2010 WL 3448071 (N.J. Super A.D. August 30, 2010), a New Jersey plaintiff's lawyer using courthouse-provided wi-fi internet access during voir dire in a medical malpractice trial, researched juror's web profiles in open court. The judge, curious about the lawyer's use of his computer, inquired:

The Court: Are you Googling these [potential jurors]?

Plaintiff’s Counsel: I’m getting information on jurors -- we’ve done it all the time, everyone does it. It is not unusual.
….

The Court: No, no, here is the rule. The rule is it’s my courtroom and I control it.

The judge ordered the attorney to close his laptop. The New Jersey Appellate Court exculpated the attorney, stating that prohibiting web searches during voir dire was unreasonable, and noted:

There was no suggestion that counsel's use of the computer was in anyway disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of “fairness” or maintaining a “level playing field.” The “playing field” was, in fact, already “level” because internet access was open to both counsel, even if only one of them chose to utilize it.

Ultimately, the lawyer failed to demonstrate any prejudice that resulted from the trial court’s ruling. I find the commentary on the use of computers in the courtroom necessary. Attorneys have a duty to their clients to make the most informed decisions possible when selecting or deselecting jurors. We should use any and all of the information we can obtain about the venire. Trial attorneys would be prudent to check local rules, keep your laptops centered in front of you and prepare a brief in support of use of the internet during a trial. If all else fails, conduct your research outside of the courtroom.

In my last three personal injury jury trials, I was amazed how effortless it was to research potential jurors on-line, many either unaware of Facebook privacy settings or simply unconcerned with their web presence. At my firm, lunchtime during jury selection has been replaced with a mad-dash to research as many jurors as possible on Google, LinkedIn or Facebook. We proudly (dare I say dutifully) collect such information with prowess. With a click of the mouse/swipe of my finger, I have discovered who potential jurors’ have “friended,” whether they are a fan of “I bet we can find 1,000,000 People who Support Same Sex Marriage," and whether their “Likes & Interests” included contributions to political campaigns. All valuable, and timely information since time is often not a luxury when selecting a jury.

The key to winning a personal injury jury trial is preparation. You must "out-prepare" your opponent, in order to try to gain every advantage. Knowing the jury better than your opponent is part of that, and in 2010 and beyond, the internet can provide an important window in to the lives and minds of prospective jurors.

Continue reading " SELECTING JURORS IN 2010 AND BEYOND " »

In a first for the Illinois Supreme Court, a committee formed to create the Illinois Rules of Evidence, has officially agreed on their codification. We in the legal world hope that that these rules will expedite the trial process and improve the administration of justice in Illinois courts.

As a Chicago personal injury attorney, I have had an opportunity to write about interesting legal news in many legal magazines and newspapers. Earlier this summer, I wrote an article that was featured in the Chicago Daily Law Bulletin, discussing the absence of the phrase "to a reasonable degree of medical certainty" in both the Federal Rules of Evidence and -- at the time -- the budding Illinois Rules of Evidence. The main forcus of my article was that the phrase "to a reasonable degree of medical certainty" is nowhere to be found in either form of the rules.

Here is an excerpt from my June 2010 article, entitled Rethinking to a Reasonable Degree:

"Since Illinois has been one of the few states without codified rules of evidence, we still follow the standard set forth in Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923). The use of the Frye test as the Illinois standard was reaffirmed by the Illinois Supreme Court in Donaldson v. Central Illinois Public Service Co., 199 Ill.2d 63 (2002)."

"The Frye standard, or "general acceptance" test, states: "scientific evidence is only admissible at trial if the methodology or scientific principle upon which the opinion is based is 'sufficiently established to have gained general acceptance in the particular field in which it belongs.'" Donaldson, 199 Ill.2d at 77. Thus, while in federal court the trial judge serves as gatekeeper when it comes to expert testimony, Illinois has rejected that position for judges. Id. at 78-79."

"Instead, the Illinois state court trial judge's role is more limited, applying Frye only if the scientific principle, technique or test offered by the expert to support his or her conclusion is "new" or "novel." Id. As a consequence, judges liberally allow the admission of "pure opinion testimony" based upon an expert's personal experience and training developed via clinical experiences. Noakes v. AMTRAK, 363 Ill. App.3d 851, 858 (1st Dist. 2006). With the potential adoption of an evidence rule similar to Federal Rule 702 in Illinois, it will be interesting to see if and how the manner in which expert testimony is admitted will be affected. I am more curious, however, to know what it will it take for Illinois lawyers to abandon the phrase altogether."

We now know that the Illinois Rule of Evidence regarding expert testimony will continue to adhere to the core principle set forth in Frye -- and "to a reasonable degree of medical certainty" remains unaccounted for in any actual rule. In fact, here is a peek the new rule involving expert testimony (all of which can be found at the Illinois Supreme Court's website):

Rule 702. TESTIMONY BY EXPERTS
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

As an Illinois personal injury attorney, I have no doubt that this new era that we are about to dawn on in the practice of Illinois law will prove interesting. The new rules go into effect January 1, 2011. I am eager to see them in action.