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Green v. Northwest Community Hospital, No.1-09-2233 (April 28, 2010). In the uncertain post-Hudson landscape of when a plaintiff’s voluntary dismissal does or does not prevent a re-filing, this First District decision provides some clarity as to dismissal language that will steer clear of the “claim splitting” addressed in the Illinois Supreme Court’s case of Hudson v. City of Chicago. That language: “plaintiff is granted leave to voluntarily dismiss with leave to reinstate as a matter of right.” Since this language was held to be a clear pronouncement that the voluntary dismissal was an exception to claim-splitting, the refiled counts not finally disposed of in the original action were permitted to proceed. (The plaintiff also re-filed counts for which summary judgment was granted in the original case. Those counts, not surprisingly, were not allowed to survive.) For those of us who write appeals, the case also affirms the pronouncement in Sup. Ct. R. 341(h)(7): that points raised by an appellant for the first time in a reply brief are waived. Hope v. Hope , No. 4-09-0707 (March 4, 2010). The fourth district upheld summary judgment for homeowner parents whose young adult daughter fell descending muddy steps (caused by the mother’s gardening activities). The daughter had encountered the muddy steps earlier in the day when she arrived at her parents’ home, but relied on the distraction exception, stating that while in the house (eating, sleeping, studying, and watching TV) she had forgotten about mud being on steps. The court held that since those activities did not occur during her fall, as is the case in other applications of the distraction exception, the exception did not apply. Essentially the court held that the distraction exception is not a “forgetfulness exception.” That sounds fine, except that the language that the court quotes from the Illinois Supreme Court’s decision in Rexroad v. City of Springfield, 207 Ill. 2d 33 (2003), states quite clearly that the exception is meant if a person will “be distracted . . . or will forget what he has discovered or will fail to protect himself against it.” Today (Thursday, April 29) on CAN-TV 21, from 1:00 to 3:30 PM (Central), the Chicago Bar Association’s Television Committee, which produces the public legal information series You and the Law, will be hosting a live call-in show, “Law Day Live.” So if you have a question of the following topics, tune in to CAN-TV 21 and call in with your questions: 1:00 PM Medical Malpractice Dobyns v. Chung, M.D. , No. 5-07-0568 (April 7, 2010) Dealing a blow to the plaintiff’s decedent in a wrongful death case filed by widower alleging that the defendant physician over-prescribed narcotics and failed to adequately warn her about risk the of harm from taking several kinds together, the Fifth District of the Illinois Appellate Court upheld the jury’s $100,000 verdict to the husband their two children, reduced by 50% for contributory negligence for a total of $50,000. The court found that the verdict was not manifestly inadequate, despite the fact that the defense counsel had remarked during closing that if the jury found the doctor negligent, a verdict of about $1 million would be fair. According to the majority, one cannot engage in a “mathematical computation” and compare similar wrongful death verdicts in the state. In dissent, however, Justice Chapman stated that despite the great deference to be give to jury verdicts, an award of “$100,000 divided among the three survivors . . . trivializes the impact her death had on her family.” Simmons v. Homatas, No. 108108 (March 18, 2010) The Illinois Supreme Court held that a BYOB strip club that placed an intoxicated patron into his car after ejecting him from the club could not benefit from the liability shield of the the dram shop act and would be held accountable for a duty of care in its role in causing the driver’s collision 15 minutes later. The club’s personnel brought the driver’s car around, opened driver’s side door, and told them to leave. The subsequent collision killed the driver’s passenger and also other vehicle’s passenger and her unborn child. Mason v. Smithkline Beecham Corp., No. 08-2265 (February 23, 2010) The 7th Circuit held that the district court erred in granting defendant-drug manufacturer’s motion for summary judgment in state law claims alleging that defendant was negligent for failing to warn plaintiffs’ decedent that taking Paxil increased risk of suicide among young adults. The district court had incorrectly relied upon the US Supreme Court’s Wyeth decision (129 SCt 1187), because in this case, the plaintiff’s claims were not preempted since defendant failed to establish – under the clear evidence standard – that the FDA would have rejected plaintiffs’ proposed warning. People v. Hammonds, No. 1-08-0194 (February 11, 2010). In a criminal case, appellate court seems to have upheld the “Cook County Rule” that it is not error for the trial court to have allowed police officers to testify about radio messages they received from other officers, as the other officers were also trial witnesses. Martinez v. Elias, M.D., No. 1-08-0265 (December 28, 2009). Court properly denied motion in limine to bar evidence of financial motive to perform surgery, which plaintiff claimed was unnecessarily performed by defendant orthopedic surgeon, therefore deviating from the standard of care. Motion for new trial was denied, but the court reversed a remittitur for $100,000 because the testimony was sufficient to support jury’s award of $100,000 for non-itemized future medical expenses. Kaiser v. Doll-Pollard , No. 5-08-0247 (February 11, 2010). Court held that Plaintiff who underwent surgery at hospital in Clinton County (the complications of which were the subject of the suit) but was then transferred to a hospital in St. Clair County to diagnose and treat the resulting problems, could bring suit in St. Clair County. Since postoperative care there was integral part of the surgery Defendant physician performed in Clinton County hospital, and since considerable evidence regarding cause and extent of Plaintiff’s injuries will come from St. Clair County she was not engaged in “forum-shopping” by choosing St. Clair as her preferred venue. Long v. Elborno, No. 1-08-1733 (January 21, 2010). In a refiled action in which the court had previously found Plaintiff failed to exercise reasonable diligence in serving Hospital, collateral estoppel applies to prevent Plaintiff from asserting that she was reasonably diligent in serving physician. (Plaintiff’s actions were identical for both parties during this time, and physician was not served for an additional four months after service on Hospital.) The amount of time necessary to obtain a Section 2-622 reviewing physician’s report does not mitigate against the deadline for reasonable diligence of service. Also, court weighed in on the “law of the case doctrine,” find that refiling of an action is not a continuation of previous action, but an entirely new action. Thus, the law of the case doctrine does not apply. |
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