Chicago Accident and Injury Lawyer Blog

During the last few weeks of December, the First District Illinois Appellate Court decided what one trial judge called a "tragically bizarre case." As experienced Illinois personal injury attorneys, we read new court rulings on a regular basis. The "tragically bizarre case" was Zokhrabov v. Park, 2011 Ill. App. LEXIS 1298 (1st Dist. 2011). There, eighteen year-old Hiroyuki Joho was killed when an Amtrak train struck him while he was in a crosswalk at a Chicago Metra Station. A large portion of Joho's body "was propelled about 100 feet onto the southbound platform where it struck 58-year-old Gayane Zokhrabov from behind, knocking her to the ground. She sustained a shoulder injury, a leg fracture, and a wrist fracture." 2011 Ill. App. LEXIS 1298, *2. Zokhrabov sued Joho's estate for her injuries. The parties filed cross motions for summary judgment as to the proximate cause of the incident. Zokhrabov claimed Joho owed her a duty while walking in and around the Metra station and that he breached that duty when he: "(a) carelessly and negligently failed to keep a proper lookout for approaching trains; (b) carelessly and negligently ran in the path of an approaching [Amtrak] train; or (c) carelessly and negligently failed to yield the right-of-way to approaching trains." Id. Park, on behalf of Joho's estate, argued Joho did not owe Zokhrabov a duty of care. The trial court ruled in favor of Park. Zokhrabov appealed.

The First District Illinois Appellate Court, applying a traditional analysis of duty, reversed and remanded, finding Zokhrabov was a foreseeable plaintiff and that as a result, Joho owed her a duty. What does that mean? When determining whether a duty of care exists in a particular set of circumstances, Illinois courts will consider, among other factors, the reasonable foreseeability that the defendant's conduct may injure another. Other factors that courts consider are the reasonable likelihood of an injury, the magnitude of the burden imposed by guarding against the harm, and the consequences of placing the burden on the defendant. Id. at *10.

In the Zokhrabov case, the First District Appellate Court decided that it was reasonably foreseeable that a train would strike, kill and fling Joho's body onto the passenger platform where Zokhrabov was waiting for her train to arrive. The Court further found that Joho acted negligently by crossing the tracks when he did and that his negligence could cause someone else's injury. The reasonable likelihood of causing an injury was great given the speed and force of the oncoming Amtrak train. The magnitude of the burden imposed by guarding against the harm was insignificant; Joho only needed to take a moment to pause, look at the tracks and cross when it was safe. Finally, placing this burden on Joho would have been minimal. Id. at 22.

What about the fact that the trial judge called the accident "tragically bizarre"? That doesn't sound like something that can be considered "foreseeable," does it? The First District Appellate court had an answer: There is a general proposition that there is no duty to anticipate and prevent injuries that occur due to unusual and extraordinary circumstances. See, Cunis v. Brennan, 56 Ill. 2d 372 (1974). However, the Appellate Court did not find that proposition persuasive in this case. Since there are no Illinois cases factually similar to the Zokhrabov case, the Court relied on traditional duty analysis and found that the injury was foreseeable, thereby creating a duty of care.

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

In this month's article, "Lawyers should take the reins with future damages", Jeff puts a holiday spin on the discussion of maximize damages for client's future medical expenses, lost earnings, future pain and suffering, disability, disfigurement and loss of consortium damages in a light of the ever-changing American economy and political climate. Here is an excerpt from his article:

My firm represents individuals who have been severely injured as a result of someone else's negligent acts. One of the most difficult tasks we have is ensuring our clients receive full and fair compensation. Before entering into a settlement or suggesting an amount of compensation to a jury, we must determine a sufficient amount of money that will provide for the individual well beyond the date of trial. Often, our clients' lives have been shattered by unnecessary and unexpected injuries. Many can no longer work or care for themselves.

In my humble opinion (with the full disclosure that I am a plaintiff's attorney), the injured party deserves the benefit of the doubt. This isn't just a "holiday, be generous" message. (Although, I am in the spirit this year; Christmas music plays in my office even as I write this article.) Who will care for the injured if their settlement or verdict award does not cover medical and daily living costs well into the future? I have yet to hear of Santa and his elves stuffing stockings with prescription medications, physical therapy, joint replacement surgeries or checks to cover insurance premiums. No one can depend on the future of Medicare and Medicaid either — nor should they have to. The harm perpetrated on the injured will consistently ripple through the individual's family, emotionally and economically. Not only do family members live with the changed — depressed and likely disabled — person, but often they also must care for the victim of negligence. The cynic will say "Well, that's the family's job. They should take care of them." But how fair is that?

The only way to protect the victim and the family, and to provide them with some piece of mind when it comes to future finances, is to maximize damages for future medical expenses, lost earnings, even future pain and suffering, disability, disfigurement and loss of consortium. Speculative damages, you might say. But there is nothing speculative about the ongoing pain and suffering that my clients will endure. Nor is there anything speculative about the medical care that they will require for the rest of their lives.

Then, there is the whole business of future damages discounted to present cash value. All future damages, except for pain and suffering, disfigurement, disability and loss of society and consortium, must be reduced to present cash value. This has become the preferred method of determining future damages. While there is no requirement that the trial attorney present actuarial or statistical evidence to the jury to determine present cash value (Robinson v. Greeley & Hansen, 114 Ill.App.3d 720, 725 (2d Dist.1983)), it certainly can be helpful at times. Of course, mortality tables also help plot the course. But how do we plan for other economic and political changes? Right now, the future of health care in this country is unknown. Regardless of which side of the aisle you prefer, we will all be affected by the changing American medical infrastructure at some point. Medical costs seem to be rising as quickly and as steadily as the cost of college. Life-care planners and economists can help us plan for our clients' futures, but we are ultimately the clients' advocates and must direct the outcome.

Read the entire article.

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This is a quote from the trailer of "Hot Coffee," a new HBO documentary that ventures into the U.S. justice system. No doubt, the phrase "hot coffee" now conjures up thoughts of the woman that sued McDonalds and won $2.9 million dollars. The case is now a part of our pop culture, as it has been the topic of many jokes and causes many to passionately decry personal injury suits, calling for tort reform. Of course, those who know the facts of the "hot coffee" case, are not laughing.

Ms. Liebeck, the plaintiff, suffered third degree burns after she spilled coffee on herself when -- as a passenger in a stopped car -- she attempted to add cream and sugar to her coffee. Initially, she attempted to settle the case with McDonalds to cover the cost of her medical bills, which included the costs associated with spending eight days in a hospital and undergoing skin grafting and debridement procedures. She suffered permanent disfigurement. Now, the documentary "Hot Coffee" (disclaimer: I have not seen the movie yet) promises to expose the facts of the McDonalds case, and those of other ordinary Americans, who have fought against big business, public relations firms that have attempted to make a mockery out of plaintiffs like Ms. Liebeck.

For years, large corporations and insurance companies have been spending millions to convince the public that personal injury verdicts and settlements are the reason why our economy is suffering. They are wrong. They have painted attorneys as greedy and untrustworthy. Those of us in the personal injury world have been attacked, while most of us truly fight to protect the rights of victims of negligence.

I am anxious to see the documentary “Hot Coffee.” I hope that it makes audiences aware of the pain and suffering that may personal injury victims suffer everyday and that it is as successful about prying into big business’s effect on the legal system as the recent documentary “Food, Inc.” was in terms of the food industry.

“Hot Coffee" will air on June 25 on HBO.

In a matter of first impression, the First District Appellate Court of Appeals recently decided that an expert doctor's written medical report prepared pursuant to 735 ILCS 5/2-622 (Section 2-622) could be used against the expert as a prior inconsistent statement for impeachment purposes. Iaccino v. Anderson, 940 N.E.2d 742 (1st Dist. 2010).

In Iaccino, plaintiffs brought a medical malpractice action for injuries sustained by a minor plaintiff during labor, claiming that defendant doctor negligently administered the drug Pitocin to the mother, causing hyperstimulation to her uterus and resulting in minor plaintiff's oxygen deprivation. Defendants' theory of the case was that the proximate cause of minor plaintiff's injury was an infection in the placenta that traveled to the fetal brain, causing brain damage before any alleged malpractice by defendants. The trial court permitted defendants to cross-examine and impeach plaintiff's expert with inconsistencies between some of the opinions contained in his written Section 2-622 medical report and his trial testimony. The jury returned a verdict for defendants. Plaintiffs appealed, arguing that the Section 2-622 report is "only a threshold opinion usually prepared at a point before all the facts are fully developed in discovery;" therefore, defendants should not have been permitted to cross-examine and impeach plaintiff's expert witness with the document. 940 N.E.2d at *9-*10.

The First District Appellate Court disagreed with plaintiffs, affirming the trial court and finding that an expert's 2-622 report could be used as a prior inconsistent statement for impeachment purposes.

In a medical malpractice case, the plaintiff must establish the standards of care against which the physician conduct is measured by the use of expert testimony. 940 N.E. 2d at 7. Section 2-622 does not prescribe the form that a written medical report must take and there is nothing in the statute that prevents the author of such a report from qualifying his opinions to make clear that they are preliminary opinions subject to amendment or supplementation upon the acquisition of additional information such as additional medical records or deposition testimony. Id. at *10.

My advice: If your expert's reasons for the breach of standard of care changes by the time the trial of your client's medical malpractice case arrives, make sure that you have thoroughly prepared the expert to explain any inconsistencies that may exist between his report and his trial testimony. This is a credibility issue that medical experts must be prepared to address.

Last November, the Indiana Court of Appeals decided Arlton v. Lafayette Retina Clinic, 936 N.E.2d 831 (Nov. 9, 2010). Why is this important to Illinois lawyers and victims of medical malpractice? For personal injuries lawyers everywhere this case provides further support for the use of demonstrative evidence when presenting a client's injury to the jury. Persuasive demonstrative evidence appeals directly to jurors’ life experiences and helps jurors understand potentially complex issues. People grasp and retain ideas better when they are conveyed through images and words. Arming the jury with the appropriate information in the most easily-received form empowers the jury to return a just verdict. As the world outside of the courtroom becomes more and more digitally driven, trial lawyers must find ways to incorporate technology into the presentation of their cases. I think that Arlton is a fantastic case that addresses this ever-evolving issue.

In Arlton, Plaintiff suffered from a condition that caused an abnormal growth of blood vessels near the retina, namely choroidal neovascularization ("CNV"), which required periodic laser eye surgery to cauterize the blood vessels. Plaintiff was first treated for the condition in 1987. In 2002, angiogram photos revealed that plaintiff's condition had worsened. As a result, defendant doctor performed laser photocoagulation surgery on plaintiff's eye. During the surgery, defendant doctor's first laser shot into the eye caused plaintiff to jump; as a result, defendant doctor burned the laser spot within the area of a pre-existing scar, which ultimately caused plaintiff to suffer a post-surgery blind spot.

Plaintiff brought a medical malpractice action against defendant doctor and his clinic, alleging that he suffered permanent injury to his eye as a result of laser eye surgery. The primary issue at trial centered around the location of the laser spot that caused plaintiff's blind spot. Plaintiff and defendants stipulated to the admission of digital images from angiograms performed before and after the surgery at issue. Each juror was provided a color copy of all of the photos in an exhibit binder. The trial judge, however, sustained defendants' objection to plaintiff's admission of enlarged copies of the angiogram images. The judge also sustained defendants' objection to plaintiff's request to provide the jury with access to the digital information on the previously admitted CD-ROM discs. The jury returned a verdict for the defendants. Plaintiff subsequently appealed.

The Indiana Court of Appeals reversed and remanded, holding that the trial court abused its discretion when it sustained the defendants' objection to the admission of the enlarged photos, stating that there was no evidence that the photos were altered in any way other than to enlarge them. In support, the Court noted that Indiana Evid. R. 1001’s definition of a "duplicate" includes enlargements, and its Rule 1003 allows for the admission of duplicates unless there was a question of authenticity or the duplicates would otherwise be unfair. At trial, plaintiff's expert specifically testified that at least one of the enlargements was an accurate "reflection" of a digital image that had already been admitted into evidence without objection. Therefore, the Court of Appeals found no issues of authenticity or any other reason to deny admission of the enlargements.

Regarding the digital images, the Court also recognized that the trial court abused its discretion by denying them to the jury. To that end, the Court provided two possible suggestions for providing a jury access to digital evidence: (1) transforming the evidence into a medium that is accessible without a computer (such as providing the information in the form of a DVD); or (2) providing the jury with a "clean" computer that contains no other information and which has no ability to access the Internet.

Continue reading "DEMONSTRATIVE EVIDENCE IN MEDICAL MALPRACTICE CASES, PART 1 OF 3" »

Staffers on reality shows like "The Bachelor," "Trading Spouses," and "The Real Gilligan's Island" filed two separate class actions in 2005 alleging unlawful working conditions. These cases recently settled for more than $4 million.

For years, reality show staffers, including story editors and segment producers, have complained that production companies overwork them to keep costs low and that they are the people who create the plot and narrative of the shows. The suits alleged that Fox, ABC, CBS and various production entities told them to forge time cards and work 18-hour days with few meal breaks.

The Writers Guild of America (WGA) initially helped to organize those who filed the lawsuit as part of its campaign to get reality story editors recognized as wirters, an effort that has not succeeded despite being a major issue last year during the WGA strike.

If a judge approves the settlement, about 400 class plaintiffs will split the settlement purse based on how many hours they worked, with about 20 named plaintiffs receiving an additional $8,250 each.

While the television studios and production companies view the lawsuit as "an example of a union using the wage-and-hours laws to impose costs on employers in order to gain organizational objectives," I think this settlement will encourage employers to follow the law and to treat workers properly...and that is a good thing for everyone.

The Illinois Appellate Court has issued a favorable opinion for the Estate of a severely brain injured plaintiff, Derek J. Thomas, who is represented by the Chicago personal injury law firm, the Law Offices of Jeffrey J. Kroll. The Illinois Appellate Court affirmed the Circuit Court of Cook County's grant of the disabled plaintiff's Amended Petition to Vacate an Order entered in the Law Division approving settlement for the mentally and physically disabled plaintiff and dismissing the case.

The appellate court's opinion will allow the firm to continue its fight in pursuing a personal injury lawsuit on Mr. Thomas's behalf. This young man's injuries require an extremely high level of medical care. The court's ruling will allow us to pursue the recovery of a substantial amount of funds to take care of him. The appellate court referenced the trial court specifically noting the "extraordinary efforts" taken by the guardian ad litem, the temporary guardian and Jeffrey Kroll to ensure the protection of Thomas.

The lawsuit arose out of a tragic car accident. Derek Thomas was a passenger in a motor vehicle operated by Robert L. Martin and owned by William L. Dawson Nursing Center on I-57 at or near 103rd Street in Chicago. Martin lost control of his southbound motor vehicle and entered the northbound incoming lanes and collided with a second vehicle.

As a result of the appellate court's ruling, the case will return to the Circuit Court of Cook County where we will continue to engage in litigation to ensure that when this matter is ultimately dismissed, Derek Thomas will be fairly compensated for his injuries.

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