Chicago Accident and Injury Lawyer Blog

The U.S. Department of Transportation (DOT) has vigorously campaigned to prevent driver distraction due to the use cell phones or other mobile devices while on the road. Now, the DOT is turning its attention to the railways, recognizing that "all modes of transportation are susceptible to dangerous distractions caused by the improper use of electronic devices." Such distractions could cause train accidents, derailments and railroad crossing collisions.

According to Fast Lane, the official blog of the U.S. Secretary of Transportation, "railroads are poised to play an ever-greater role in the movement of people and goods." Thus, as those in the railroad industry, like everyone else, become more and more dependent on electronic devices, railroaders must be aware of hazardous distractions these devices could pose while operating rail equipment and working in rail yards.

Fast Lane reported that FRA Administrator Joseph Szabo addressed the Rail Safety Advisory Committee with a clear anti-distraction message:

"Despite specific restrictions and the increased attention the problem is receiving, we know that the improper use of personal electronic devices continues in the rail industry. There is more that we must do to make this behavior socially unacceptable in the workplace."

The FRA regulates rail safety across the nation. Railroad equipment is inherently dangerous even without the added distraction of mobile devices. Mr. Szabo advised: "When on duty, turn off personal cell phones and put them away. And if a cell phone is required for official business, make sure to carefully follow all regulations and work rules.”

Sound advice and a great idea. Of course, the implementation of the idea is what is important at the end of the day. Let's see it enforced.

Every month, Jeffrey J. Kroll contributes to the Chicago Daily Law Bulletin in his column Balancing Life and the Law.

In this month's article, Weighing the value of life, death and work, Jeff discusses how trial attorneys should approach the issue of compensation for the loss of society when presenting wrongful death cases to jurors.

Jeffrey J. Kroll is known by his peers to be a leader in Personal Injury and Wrongful Death. As a guest columnist for the Chicago Daily Law Bulletin, he writes about balancing the demands of the practice of law with the demands of personal life.

Were you surprised that the Illinois Supreme Court recently found that Deerfield parents who permitted underage drinking at their home were not civilly liable for the death of an 18-year-old who died in a car crash after leaving a party at their home? Sometimes, there is more to a story than meets the eye.

The case before the Illinois Supreme Court, Bell v. Hutsell, 2011 Ill. LEXIS 777 (2011), was a Lake County civil suit, which stemmed from the October 2006 death of Daniel Bell, who was killed when he drove his vehicle into a tree in Deerfield after leaving a party at the home of defendant-parents, the Hutsells. Daniel Bell's mother sued the defendant-parents on her deceased son's behalf. (According to the Chicago Tribune, in 2007, the Hutsells were convicted of misdemeanors related to underage drinking, endangering a child and obstruction of justice.) The Circuit Court of Lake County dismissed the civil action in its entirety. The Second District Appellate Court found the first three counts of plaintiff's complaint, which alleged a theory of voluntary undertaking by the defendant-parents, could stand. The defendant-parents appealed to the Illinois Supreme Court.

Relying on the Restatement (Second) of Torts, specifically Sections 323, Negligent Performance of Undertaking to Render Services, and 324A, Liability to Third Person for Negligent Performance of Undertaking, the Illinois Supreme Court held that the facts alleged in plaintiff's complaint failed to show that the defendant-parents had undertaken a duty under which they could be held liable for negligence.

The facts set forth in plaintiff's complaint alleged that defendant-parents intended to prohibit underage drinking at the party at their house and conveyed this to their son, Jonathon; however, there was no claim that the defendant-parents' intent was communicated to any of the other underage party-goers. Further, although it was alleged that the defendant-parents were present in the home when the party was taking place, the complaint failed to demonstrate that the defendant-parents took any affirmative steps to carry out their expressed intention to prohibit underage drinking.

To prevail in a negligence action, the plaintiff must allege and prove that the defendant owed the plaintiff a duty, breached that duty, and that defendant's breach was the proximate cause of plaintiff's injury. In a case alleging the voluntary undertaking theory of liability, the duty of care to be imposed upon a defendant is limited to the extent of the undertaking by the defendant. 2011 Ill. LEXIS 777, *8.

What went wrong here? To prevail on the theory of voluntary undertaking, there must have been some affirmative action taken to attempt to stop the possession and consumption of alcohol at the home, as well as an allegation that plaintiff's decedent changed position, relied upon, or was put at an increased risk of harm or in a worse position because of defendant-parents' statement to their son not to drink. Conversely, Plaintiff's complaint alleged no affirmative action by the defendant-parents: there was no allegation that they attempted to confiscate alcoholic beverages in the possession of underage partygoers, asked offenders to leave, or called a halt to the party. Id. at *20.

See Jeffery J. Kroll live on "Good Day Chicago" with Jan Jeffcoat and David Novarro in 2010, discussing the possible legal consequences for adults who provide alcohol to underage drinkers.

Sadly, the answer is yes; and, it happened right here in Chicago. Myxo ETlogix annuloplasty rings - that were different in design from previously approved devices - were implanted in patients at Northwestern Memorial Hospital (NMH) based on the approval of the doctor and the pharmaceutical company who both stood to profit from the product. Importantly, two critical links in the chain were missing before the device should have been implanted: (1) approval from the FDA and (2) consent from the patient to use an investigational device. As an investigational device that posed a significant risk, the doctor and NMH should have received approval from the FDA and an Internal Review Board (IRB) prior to the implantation of the myxo device for clinical testing. FDA approval is obtained by submitting an Investigational Device Exemption (IDE) application to the FDA.

Pursuant to FDA regulations, in order to conduct a significant risk device study, a sponsor must: (1) submit a complete IDE application to FDA for review and obtain FDA approval of the IDE; (2) submit the investigational plan and report of prior investigations to the IRB at each institution where the investigation is to be conducted for review and approval; and (3) select qualified investigators, provide them with all necessary information on the investigational plan and report of prior investigations, and obtain signed investigator agreements from them.

The FDA found that Edwards Lifesciences, who manufactured the ring, erred when it failed to seek clearance for the devices because the shapes and materials were different than other rings on the market. The Law Offices of Jeffrey J. Kroll and The Law Offices of Newman, Boyer & Statham currently represent a woman who had the ring implanted without knowing it was non-FDA-approved.

Contact the Law Offices of Jeffrey J. Kroll today at (312) 676-7222, if you have been injured by a doctor's negligence.

The Law Offices of Jeffrey J. Kroll has recently been retained by an individual that was hazed and bullied at a local college fraternity. Hazing, in its simplest form, is bullying or harassment where the victim (here a college student) participates in either an active or passive manner in order to gain acceptance to a group. Our client sustained significant physical injuries as a result of the hazing.

Bullying and hazing are not just kids' play. They are serious and widespread problems. For more information on recognizing the signs of bullying visit www.Stopbullying.gov.

The Illinois personal injury attorneys at the Law Offices of Jeffrey J. Kroll have experience representing students that have been bullied, harassed, hazed or otherwise physically or emotionally injured. We have represented a number of students that have been victims of bullying or hazing.

On May 20, 2011, the Illinois Supreme Court Rules Committee will discuss whether or not to codify a new Illinois Supreme Court Rule which would change juror participation by permitting jurors to question witnesses during the trial process.

The proposed Rule would look like this (according to the Illinois Supreme Court website):

(a) Questions Permitted. The court may permit jurors in civil cases to submit to the court written questions to be posed to witnesses.

(b) Objections. Out of the presence of the jury but on the record, the court will read, or
provide a copy of the questions to all counsel and give counsel an opportunity to object to the question. If any objections are made, the court will rule upon the objections at that time and the question submitted by the juror will be either allowed to be read as written, allowed to be read as modified, or excluded.

(c) Questioning the Witness. If the question is allowed as written or as modified, the court or counsel will read the juror’s question to the witness in the jury’s presence, and the witness will answer the question. The court will then provide all counsel with an opportunity to ask follow-up questions limited to the scope of the new testimony.

(d) Admonishment to Jurors. At times before or during the trial that the court deems
appropriate, the court shall advise the jurors that they shall not concern themselves with the reason for the exclusion or modification of any question submitted and that such measures are taken by the court in accordance with the rules of evidence that govern the case.

Having tried cases for over twenty years, I believe that Illinois attorneys should tread carefully in this area as the proposed rule could shatter the principle of juror neutrality. If codified, it will effectively inject jurors into the position of advocate versus a neutral fact-finder. From a practical standpoint, it also invites jurors to deliberate prematurely. For these reasons, the Law Offices of Jeffrey J. Kroll disapproves of the proposed rule.

On Thursday, May 19th, Jeffrey J. Kroll will speak on the subject of “Expert Witnesses Use of Demonstrative Evidence.” The meeting will take place at One South Wacker Drive, Chicago, Illinois. Jeff will address the Chicago Chapter of the Forensic Expert Witness Association. Jeff has lectured nationally on how trial attorneys can work effectively with expert witnesses.

Medical researchers have confirmation that the late Dave Duerson’s suspicion that he suffered brain damage was correct.

This week, the Los Angeles Times ran a story regarding Duerson, the late Chicago Bears' Super Bowler, who died earlier this year from a self-inflicted gunshot wound to the chest. After a successful career on and off the playing field, Duerson began to suffer from headaches, memory loss, vision and attention problems, and impulse control. Duerson, who requested that his brain be studied at Boston University's Center for the Study of Traumatic Encephalopathy, was convinced that he suffered brain damage as a result of the many years he spent playing football. Medical researchers now say they have confirmation that Duerson was correct.

In fact, his autopsy revealed that "Duerson suffered from a neurodegenerative disease linked to concussions and other repetitive head trauma…." The Los Angeles Times article discusses the work of neurologists at Boston University and the Bedford VA Medical Center who have so far examined fifteen former players, discovering "signs of chronic traumatic encephalopathy, or CTE, in 14 of them."

What is the significance of these findings? According to the article, researchers have now "reinforced growing concerns about long-term football injuries." "[R]epetitive concussions and sub-concussive blows, other yet-to-be-determined factors — perhaps including genetic predisposition — could put individuals at risk."

The Chicago Accident and Injury Lawyer Blog has discussed the seriousness of sports-related injuries in past posts. As Chicago brain injury attorneys, we understand the long-term effects of head trauma. Contact us if you or someone you know has suffered head trauma in a sports-related incident or a motor vehicle collision.

Two headlines pertaining to medical malpractice caught my eye over the past few weeks: (1) Hung-over surgeons more error-prone; and (2) Surgeon operates on the wrong eye of Vancouver boy.

The first article, which appeared in Reuters, discussed a new study that showed surgeons and students who performed simulated surgeries after a night of drinking alcohol were more likely to commit surgical errors.

How much a doctor drinks the day before operating is not regulated. (Yet, Federal Aviation Regulation 14 CFR 91.17 prohibits pilots or anyone acting as a crew member on a civil aircraft from consuming alcohol 8 hours prior to flying an aircraft). In the reported study, the participants performed surgery on a virtual reality system, not real people thankfully. The results:

At 9 AM, hung-over students made about 19 errors on average, while those who hadn't been drinking made only eight. This difference hadn't been seen before the night out, and faded over the day.

The surgeons also performed worse the day after their night out compared with before, with an increase in errors of about half. Yet only one of them had detectable blood alcohol levels.

The second disturbing article involved a 4-year-old Vancouver boy, whose eye surgeon incorrectly operated on the boy’s left eye, when she should have operated on the boy’s right eye. According to the boy’s parents, the surgeon “said, ‘frankly, I lost sense of direction and didn’t realize I had operated on the wrong eye until I was done operating on the eye.’”

In Illinois, the law currently holds health care providers accountable for injured parties’ medical costs, loss of income and non-economic losses, such as pain and suffering, disability and disfigurement. As Chicago medical malpractice attorneys, the Law Offices of Jeffrey J. Kroll has won multiple million-dollar settlements and verdicts on behalf of our clients in medical malpractice suits.

The Stanford Law Review recently published a law review article, What Judges Think of the Quality of Legal Representation, 63 Stan. L. Rev. 317, January, 2011, penned by the Seventh Circuit's Judge Richard Posner and University of Toronto Associate Law Professor Albert Yoon. The team surveyed 666 state and federal judges at the appellate and trial levels, asking judges "to answer questions relating to their perceptions of the quality of legal representation, and how that quality - and significant disparities in quality between opposing counsel - influences how they and juries decide cases." 63 Stan. L. Rev. 317, 319.

The findings? It is not surprising that Judges found that they responded differently than juries to the disparity in the quality of legal representation. 63 Stan. L. Rev. at 320. When such disparities arise, judges stated that they conducted independent research outside the courtroom in order to decide legal issues. As for how juries perceive trial counsel, the articles stated that "jurors are inclined … to favor the litigant with the higher-quality lawyer." Id.

What does this mean?

When litigants have lawyers of unequal quality, judges can frequently correct the imbalance through their own research, whereas juries cannot and therefore respond to the inequality in representation by gravitating toward the litigant with the stronger lawyer. This finding is consistent with evidence that the quality of legal representation has a strong effect on case outcomes. If the stronger lawyer coincides with the litigant with the stronger case on the merits, then one would expect judges and juries to agree on the outcome. If, however, the weaker lawyer coincides with the litigant with the stronger case on the merits, then judges and juries are likely to disagree. One federal district judge suggested that judges were performing the job of the lawyers: "It is frustrating having to conduct research, raise fundamental issues sua sponte, and having the litigants reap all the benefits."

Id. at 346.

The solution is self-evident. Litigants should retain lawyers with trial advocacy skills. When asked how to enhance the quality of legal representation, most judges suggested changes at the law school level. Jeffrey J. Kroll has taught at numerous law schools in Chicago, including trial advocacy and medical malpractice law at DePaul University College of Law, trial advocacy at Northwestern University College of Law and deposition practicum courses at John Marshall Law School. The attorneys at the Law Offices of Jeffrey J. Kroll have over 20 years of experience trying cases throughout Illinois and across the nation.

April was a wet month… and the rain just doesn’t seem to be letting up. The Chicago personal injury attorneys at the Law Offices of Jeffrey J. Kroll have handled many cases involving car accidents that occurred as a result of rainy conditions. Here are a few tips for avoiding collisions when the roads are wet:

(1) Drive slowly. Rushing from one place to another, changing lanes, attempting to make quick stops. When roads are wet, automobiles require more time to stop. Drivers who slow down will have more time to react to other drivers.

(2) Keep your headlights on, even during the day. Visibility is reduced on rainy days. Keeping headlights on will notify other drivers of your presence on the road.

(3) Don’t follow other vehicles too closely, especially large trucks. Avoid larger vehicles that may splash water on to your windshield and obstruct your view of the road.

(4) Stay away from flooded areas. Large puddles and flooded areas could be deceiving to drivers. Water can flood engines causing major damage to your vehicle. Also, flooded areas could be masking large pot holes or other hazards that could cause damage to your vehicle and injure passengers.

When it is necessary to drive in wet conditions that could be dangerous, it is important to drive with caution.

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