Chicago Personal Injury Lawyer Blawg

June 23, 2008

Car Accident Pedestrian Death Leads to Cook County Jury Verdict of $2.5 Million- Largest Verdict For Death of 90+ Year Old

The $2.5 million Illinois wrongful death verdict handed down by a Cook County jury last week was not only the largest in Cook County for a person 90 years or older, but now stands as the largest in Illinois for anyone of that age group that has been injured or killed.

Ms. Grochis was struck by a car crossing the street at Grand Avenue and 73rd Street in Elmwood Park, IL. Because she survived after being dragged 25 feet by the defendant’s car, she was awarded $1 million for pain and suffering. The jury also awarded an additional $1.5 million for the wrongful death of Ms. Grochis, who lived independently, still handling her own shopping and errands, and used public transportation to get around. She was survived by two children ages 56 and 52, along with several grandchildren and great-grandchildren.

This Cook County wrongful death verdict is reflective of a change in jury attitudes. There had been a tendency among jurors to perhaps discount or hold down the verdict to much lower levels because of the advanced years of the plaintiff. Typically when there has been either advanced years or a perceived life expectancy reduction the verdicts are on a significantly lower scale then the Grochis verdict.

June 21, 2008

Age Discrimination Claim Upheld by U.S. Supreme Court In Meacham v. Knolls Atomic Power Laboratory

by Robert Kreisman

In a turn by the Supreme Court of the United States, the court handed down its ruling June 19, 2008 in favor of workers suing Knolls Atomic Power Laboratory for age discrimination. Notable in this decision is the fact that under Chief Justice John Roberts the Supreme Court repeatedly sided with business. Some critics even voiced concerns that the Roberts court went out of its way to side with big business, particularly in employment cases. This decision stands as a kind of reversal of that implied policy.

In Meacham v. Knolls Atomic Power Laboratory, the National Government ordered its contractor, Knolls, to reduce its work force. As a result Knolls had its managers score their subordinates on “performance”, “flexibility”, and “critical skills”. These scores, along with points for years of service, were to used to determine who would be laid off.

30 of the 31 employees let go were at least 40-years-old. Meacham was one of those 30. The lawsuit was initiated claiming disparate-impact under the Age Discrimination in Employment Act of 1967. Disparate-impact is when an employment practice has a greater impact on one group over another. These “employment practices” can be anything from written tests, height and weight requirements, educational requirements, and subjective procedures, such as interviews. Under disparate-impact one doesn’t have to prove that there was an intent to discriminate against a certain group, but just that the result is discrimination.

In this case the key issue was whether or not Knolls’s basis for lay-offs was skewed according to age. The managers all scored these employees and thus used their own discretion to come up with their decisions.

June 20, 2008

Illinois Supreme Court Interprets Medical Malpractice Law

by Robert Kreisman

In a sharply divided decision, 4-3, the Illinois Supreme Court held that plaintiffs who are allowed to refile a case after a voluntary nonsuit, would still be allowed 90 days after the refiling to present the required Section 2-622 affidavit of a physician or other medical provider to certify that an Illinois medical negligence complaint has merit.

In Illinois it has been the law that as a prerequisite to filing any Illinois medical malpractice case, the plaintiff’s attorney must include with the complaint a certificate of merit asserting that the case has merit from a physician or medical provider expert in the area of medicine being complained about. Sometimes lawyers find that although they believe the facts support a case for medical malpractice, no medical certificate was available in advance of the running of the statute of limitations.

In Illinois the statute of limitations is two years for most tort/negligence cases with some exceptions. What the statute of limitations does is act as a complete bar from bringing the action at all, i.e. the court would dismiss the case unless it is filed within the time limit.

June 19, 2008

Illinois Wrongful Death Case Settled by Kreisman Law Offices

by Robert Kreisman

June 18, 2008- After a lengthy mediation session led by retired Cook County Circuit Court Judge Stuart Nudelman, the defendants, Victor Colin, M.D. and his professional practice, Elgin Family Physicians, agreed to settle the Illinois wrongful death case of decedent, Timothy.

Kreisman Law Offices handled the Illinois wrongful death claim which centered on the Illinois physicians’ medical malpractice as a result of an incorrect diagnosis and treatment of Timothy’s condition of fever, headache, and sleeplessness for at least two weeks. While these signs might not be overly alarming in your typical patient, Timothy’s circumstances weren’t those of your typical patient.

Born with a congenital heart valve defect of Tetralogy of Fallot, Timothy had undergone three open heart surgeries for valve repair, including a porcine (pig) valve replacement of his pulmonary valve in 1981. This history placed Timothy at high risk for bacterial endocarditis, which is a serious infection of the endocardium (the smooth interior lining of the heart) and the heart valves, typically caused by bacteria. It was this type of infection that eventually led to Timothy’s death.

June 18, 2008

Illinois Mass Tort Class Action $120 Million Verdict Against Oil Refinery Reinstated by Illinois Appellate Court

by Robert Kreisman

Blue Island, Illinois residents rejoiced on word that the 1st District Appellate Court reinstated a $120 million class action verdict. The Illinois class action lawsuit was prompted when Blue Island residents complained that the refinery was responsible for years of air pollution and other forms of contamination.

The refinery in question changed hands several times over the course of the years in question. It was first operated by Clark Oil & Refining Corporation, which became Clark Refining & Marketing, Inc. who then became Premcor and then finally Valero Energy Corporation. Valero is the present owner and maintains that it did not own the plant at the time the refinery was held responsible for the damages to the residents.

In November, 2005, a Cook County jury awarded the class of plaintiffs $80 million in compensatory damages and $40 million additional in punitive damages. But about a year after the entry of the verdict, the trial judge, Cheryl A. Starks, entertained the defendant’s post-trial motion to decertify the class and vacate the damage awards. The Appellate Court considered only the issue of whether or not Judge Starks had the authority to decertify the class- they ruled that she did not.
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June 13, 2008

Attorneys Lobby for Consumer Rights Stripped Away in Riegel v. Medtronic, Inc.

by Robert Kreisman

The American Association for Justice (AAJ) is lobbying for the rights of consumers injured by defective medical devices. In Riegel v. Medtronic, Inc. the U.S. Supreme Court ruled that manufacturers of medical products weren’t liable for damages if their device received premarket FDA approval (see 03/01/08 post for more details). It is up to Congress to restore the rights of the consumer.

The Medical Device Safety Act of 2008 is set to mimic the 1976 Medical Device Act (MDA), which is what the U.S. Supreme Court relied on for its decision in Riegel v. Medtronic, Inc. The new act seeks to add the following language to the section titled “No Effect on Liability Under State Law”:

Nothing in this section shall be construed to modify or otherwise effect any action for damages or the liability of any person under the law of any State.

By adding this language the new Act ensures that civil suits can be filed under state law even if the device was approved by the FDA.

In order to ensure that the new act protects the rights of consumers the AAJ is actively lobbying, uniting attorneys from across the country in their common goal. If you, too, feel strongly about this bill it is vital that you contact your member of Congress and voice your support for the bill.

June 9, 2008

Illinois Medical Malpractice Reform Faces Judicial Challenge

by Robert Kreisman

The SUMMARY OF MEDICARE ACT OF 2003.pdf requires the president to submit legislation to remedy Medicare’s money problems. Mixed up in this formula is the dangerous prospect that a tort reform provision will be attached that would severely limit the rights of citizens to bring Illinois medical negligence claims against doctors, hospitals, nurses and clinicians who may be responsible for injuring patients.

Tort reform or “deform”, as some opponents refer to it, has been enacted into law in many states, usually only to limit the ability of the injured to bring Illinois medical malpractice lawsuits. In 2005 Illinois fell to tort reform in medical negligence cases only, the constitutionality of which is now being challenged. A test case succeeded in the Circuit Court of Cook County, where Judge Larson found the law to be unconstitutional. Currently that circuit court decision is being appealed and a decision by the Illinois Supreme Court is due later this year on the validity of that act.

The requirement for legislation is triggered when Medicare funding exceeds 45% by the general revenues for two consecutive years. The act also requires the majority and minority leaders of the Senate and the House to submit their own bills for consideration.

May 19, 2008

Chicago Lawyers, Staff of Kreisman Law Offices Supports Autism Speaks

by Robert Kreisman

On Sunday, May 18, 2008, thousands of walkers turned out for Walk Now for Autism, a 5k walk to raise funds for autism research. Bob Kreisman, Yolanda Flores, and Catherine Russell of Kreisman Law Offices were all in attendance, each contributing in their own way.

Yolanda showed up at 6:00 a.m., two hours before registration opened, to help organize the tents and booths in preparation for the busy day. Once walkers began to arrive Yolanda headed up the t-shirt booth, handing out box upon box of t-shirts to participants over the course of the next several hours. And through the long day she always had a smile on her face and kept the atmosphere of the t-shirt booth light and fun.

Bob and Catherine both participated in the walk itself. The 5k (3.1 mile) course started at Soldier Field, then looped along Chicago’s lakefront before backtracking to Soldier Field. The course was full of families and friends of children with autism that came out to show their support for both their loved ones and for the organization itself. Oftentimes individual groups could be distinguished by t-shirts they wore or large banners with slogans and messages of support and love. Despite the large number of people there was not a cross word to be heard- everyone was happy and excited to be involved.

April 26, 2008

Breast Cancer Specimens Misdiagnosed: How Accurate Are Your Test Results?

by Robert Kreisman

Recent studies have exposed inconsistent and inaccurate results of breast tissues tested for cancer, which has led to the misdiagnosis of cancer. The most troubling aspect is that thousands of women may have failed to receive the proper treatment because of errors in two laboratory tests.

One of these laboratory tests is Her-2, which is used to help determine how aggressive a breast cancer tumor is. The test is done not to diagnose cancer, but to help decide on the proper treatment course once breast cancer has already been diagnosed. If the test is positive then the patient likely has an aggressive tumor that will not only respond poorly to hormone treatment, but to chemotherapy as well.

So these patient will then be treated with Herceptin therapy. Herceptin is an FDA-approved drug that works at slowing the growth of aggressive tumors and at destroying cancerous cells. However, in order to be a candidate for this type of treatment one must first test Her-2 positive because the drug only focuses on Her-2 genes.

The introduction of this drug was a breakthrough- by focusing on a subset of cancer patients the drug was more specific and thereby more effective for its subset. However, because one must first be diagnosed as Her-2 positive before receiving the drug it is crucial that Her-2 testing is accurate. And right now that isn’t the case.

March 1, 2008

US Supreme Court Holds Medical Devices Exempt from Liability in Riegel v. Medtronic

by Robert Kreisman

In the case Riegel v. Medtronic, Inc. the U.S. Supreme Court ruled that the manufacturer of the medical device could not be sued under state law when the device causes an injury. What this means for patients is that it is now harder to file an Illinois product liability lawsuit against a maker of medical device that is FDA approved.

FDA recall video of the leads used in Medtronics pacemakers.

In its decision the Supreme Court relied on the Medical Device Amendments of 1976 (MDA) which holds that a state cannot establish regulations that are different than established by the FDA, or that are in addition to the federal requirements. Nor can state regulations supersede those laid out by the FDA regarding safety and effectiveness.

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