Articles Posted in Federal Court Procedure

Daniel Dumrauf was a director with Medix Staffing Solutions Inc., a Chicago-based staffing agency. Dumrauf, who worked at Medix’s Scottsdale, AZ, office, had an employment agreement containing a noncompete clause that restricted him from any affiliation “with the ownership, management, operation or control” of any business in competition with Medix either directly or indirectly.

The noncompete clause had an 18-month lifespan and covered a 50-mile radius.

On Aug. 10, 2017, he resigned from his position with Medix and informed the company he would be taking a position with ProLink, a direct competitor of Medix. In his resignation correspondence, Dumrauf noted that 90% of his activity with ProLink would be done in Ohio and Kentucky.

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Perry Odom was seriously injured when a semi-trailer collapsed on him at his job.

His employer was Penske Logistics. However, this employer did not own the trailer; his employer’s sole shareholder, Penske Truck Leasing, was the owner.

Odom and his wife brought a lawsuit against Penske Truck Leasing through a personal injury action filed in the U.S. Federal District Court. The district court judge dismissed the Odoms’ complaint, reasoning that under state law, the Workers’ Compensation Act applied to shield the employer’s stockholders from employee claims arising out of a workplace injury.

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The U.S. Court of Appeals for the 7th Circuit in Chicago addressed the issue of the need for expert testimony on causation when the issue is beyond the understanding of laypersons.

The product liability claim here involved the allegation of a defective intrauterine device (IUD) that broke when it was removed from the plaintiff’s uterus, leaving a fragment of it behind.

Cheryl Dalton sued Teva North America, the manufacturer and distributor of the ParaGard, the IUD.

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The defendant in this federal lawsuit owned two homes. One was in California and the other was in Wisconsin. Craig Cunningham filed a lawsuit against Michael Montes and tried to serve Montes at his Wisconsin address. No one came to the door. The process server called Montes; he refused to provide his current location. After an ex parte submission by Cunningham, the U.S. District Court judge authorized service by publication.

Cunningham published notice in periodicals that circulate only in the Midwest. When Montes did not answer the complaint, the district court entered a default.

After learning of the lawsuit from a defendant in another of Cunningham’s lawsuits, Montes asked the court to set aside the default. The judge declined, stating that Montes had persistently tried to evade service in both California and Wisconsin. The judge then entered judgment for more than $175,000. Montes appealed.

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Cedric Smith sued the United States government under the Federal Tort Claims Act (FTCA), 28 U.S.C. Section 2671 et seq., claiming injuries from a fall off of a broken metal stool in a secured attorney-client interview room at the U.S. District Court in Rock Island, Ill.

Smith’s lawsuit relied on the doctrine of res ipsa loquitur (“the thing speaks for itself”), claiming that when he sat on the stool, it tilted backward, causing him to fall, hit his head and suffer permanent injuries.

The district court judge granted summary judgment for the federal government finding that the Smith evidence was insufficient to create an inference of negligence because others could have broken the stool or Smith could just have fallen from an undamaged stool in the absence of negligence on the part of anyone.  The U.S. Court of Appeals for the 7th Circuit in Chicago reversed the granting of the summary judgment motion in an opinion written by Judge Ilana Diamond Rovner, holding that Smith’s evidence was sufficient to create a jury question as to whether the government was negligent.

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Doris Neumann sued multiple companies, including MW Custom Papers LLC, a manufacturer of friction tape containing high levels of asbestos. In her lawsuit, she claimed she developed mesothelioma caused by her son’s clothing as a gas station attendant. He used a friction tape and wound up bringing stray asbestos fibers home, causing her to suffer secondary, or “take-home,” mesothelioma.

In the lawsuit, she claimed that MW Custom Papers knew or should have known the dangers of asbestos and should have warned users and families of take-home asbestos. MW Custom Papers moved to dismiss, asserting that take-home mesothelioma was not reasonably foreseeable under the Illinois Supreme Court rule found in the decision Simpkins v. CSX Transportation, Inc., 2012 IL 110662, 965 N.E.2d 1092 (Ill. 2012) and that MW could never know who the users and family members were and thus could not possibly warn them of the dangers of asbestos.

The motion was granted by the U.S. District Court judge in Chicago: The court concluded that it could not assess whether the injury was foreseeable and remanded the case so that the plaintiff could amend the complaint. Ultimately, the Illinois Supreme Court did not undertake the four-factor analysis and did not address whether a duty could exist as a matter of public policy, as the [5th U.S. Circuit Court of Appeals] has held.

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Lee Newsome sustained a serious injury to his right foot when a rail hanging from a crane fell on him. He was working for the Wisconsin Central Railroad. Newsome sued the railroad under the Federal Employers Liability Act (FELA) claiming that his injuries caused him a “loss of future earning capacity.” Wisconsin Central moved for partial summary judgment on Newsome’s loss of future earning capacity, arguing that the evidence did not support his claim. The U.S. Magistrate Judge handling this case denied Wisconsin Central’s motion, holding that there was a fact question for the jury.  According to the Magistrate Judge’s decision, the U.S. Supreme Court has held that the FELA allows for the awarding of damages for impairment of earning capacity.

“The FELA is a broad remedial statute to be construed liberally in order to effectuate its purpose. In addition to compensation for pain and suffering, the FELA allows damages for economic harms such as loss of past and future wages and impairment of earning capacity that result from injury.” Grunenthal v. Long Island RR Co., 393 U.S. 156, 160-62 (1968).”

There were no 7th Circuit Court of Appeals cases for the Magistrate Judge to rely on. However, there were other federal circuit court cases that stated that proofs necessary to recover future loss of earning capacity is allowed in the FELA context.

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On May 12, 2011, the plaintiff, John Barrow IV, age 58, was a coal mine forklift operator. Barrow walked into a coal mine near Equality, Ill., when a hydraulic hose on the ground caused him to fall and land on his back. The defendant in this case, Temper Fabricators, a fabrication contractor working at the mine, had left several steel-reinforced hydraulic hoses lying across a walkway just inside the entrance to the mine’s main warehouse.

Barrow apparently did not see the hoses when he entered the mine after walking in from the outdoor sunlight. He stepped on one of the hoses, which then rolled out from under his foot. While falling, he sustained lower back injuries that required spinal fusion surgery and left him with ongoing pain, disability and severe sexual dysfunction.

Barrow’s wife, Kimberlee, claimed loss of consortium. The Barrows asserted that the Temper Fabricator’s employees were at fault for choosing not to post any barricades or warning flags before leaving the hoses unattended. The Mine Safety & Health Administration (MSHA) regulations required all safety hazards to be barricaded or flagged off. Employees of contractors were subject to the same MSHA safety regulations as employees of mine owners.

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Toni Dugan was insured by Nationwide Insurance Co. She was involved in an automobile accident with Chelsea Rainey who was insured by American Family Insurance Co. Rainey’s policy had a $100,000 limit, which American Family paid to Dugan and her husband, James.

The Dugans’ damages exceeded $200,000, and they made a claim under their own underinsurance motorist coverage through Nationwide. The Dugans’ claim against Nationwide sought $400,000 less American Family’s $100,000 payment. Based on the underinsured motorist coverage (UIM), the Dugans claimed coverage for 4 automobiles. The premium was charged on each of the four cars for UIM coverage of $100,000 per person and $300,000 per occurrence.

Nationwide denied coverage, contending its policy prohibited stacking of UIM coverage and filed a complaint for declaratory judgment. The parties filed cross-motions for summary judgment and the U.S. District Court judge of the Southern District of Illinois granted Nationwide’s motion finding that stacking was prohibited.

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When litigation is possible or pending in a federal case, the litigants should take care to instruct those in possession of documents and especially electronically stored information to preserve and prevent loss of such documents. If the litigation has begun, or is reasonably anticipated, lawyers should send a letter by way of email or written notice to the other side to put them on notice that there is a duty of preservation that has been triggered. They should also describe the electronically stored information believed to be relevant in a case that should be preserved.

The newly amended Rule 37(e) authorizes what measures the courts can use if the electronic information that should have been preserved has been destroyed or lost.

Amended Rule 37(e) provides:

Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

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