Articles Posted in Trial Practice

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The Illinois Appellate Court has affirmed a defense verdict in a multi-vehicle crash on an icy Indiana highway that caused severe injuries to motorists. The big issue in the case was which state’s law should be applied at a Cook County Circuit Court jury trial.

On Dec. 26, 2007, Clifford Ruse, a truck driver for Harvey, Ill.-based Envirite of Illinois Inc. was driving eastbound on Interstate 80/94 in Hammond, Ind., when he was struck by an SUV whose driver had lost control on a patch of black ice.

Ruse swerved his truck to the left and hit the highway’s median wall. On impact, the container of mill dust in tow was detached from his truck and that container crossed into the westbound lanes of the interstate highway. The plaintiff in the case, Daniel Kovera, was one of several drivers injured when the container landed on their cars. In March 2008, Kovera and his wife filed a lawsuit in the Circuit Court of Cook County, Ill.

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In the early morning hours of April 19, 2010, Chantel Jobes was driving a vehicle alone and left the southbound lane of Highway 11, crossed the northbound lane and crashed into a concrete railroad trestle. Jobes was seriously injured and filed a lawsuit against the Norfolk Southern Railway Co., the Mississippi Transportation Commission and the Mississippi Department of Transportation. The trial judge denied the defendants’ motion for summary judgment. The Supreme Court of Mississippi granted the defendants’ request for an interlocutory appeal and that court entered summary judgment in their favor.

Jobes was working at TGI Fridays in Hattiesburg, Miss., when she started her shift as the manager at 4 p.m. on April 18, 2010. She finished her shift at approximately 1:30 a.m. the morning of April 19 and then went directly to a 24/7 gym nearby to work out, which was her normal routine. After about an hour at the gym, she headed to a friend’s house to celebrate his birthday. She does not remember the party, but her friends told her that she “didn’t want to finish the cocktail drink [she] had,” and she wanted to go home.

Jobes left the birthday party and drove toward her home. The crash described above occurred about 4:42 a.m. on April 19. The weather was clear and dry, and the crash injuries were life-threatening. Jobes was driving with a suspended license and was legally intoxicated and also had prescription anti-anxiety medication in her system. Jobes testified at her deposition that she had worked 3 straight weeks without a day off up until the crash. She could not remember a time when she had been more stressed.

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A lawsuit was filed against the Chicago Zoological Society, which operates Brookfield Zoo, on land owned by the Cook County Forest Preserve District. The case was filed by Kristine O’Toole for injuries that she suffered when she fell because of an alleged defect in the pavement.

The defendant, the Chicago Zoological Society, which is a not-for-profit corporation, moved to dismiss the lawsuit under the Illinois Local Governmental and Governmental Employees Tort Immunity Act, which includes a shortened statute of limitations — that being one-year rather than two years for the usual tort claim. The shortened one-year deadline applies to “any not-for-profit corporation organized for the purpose of conducting public business.”

The Cook County judge granted the motion dismissing O’Toole’s case because she had not filed the lawsuit within the one-year statute of limitations from the date of her injury that the judge decided applied. She took an appeal claiming that the defendant did not qualify as a “local public entity” that would impose the one-year statute.

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On Aug. 2, 2005, Brandy Pirrello was a resident at Maryville Academy, a facility that houses and treats minors with behavioral problems. At the time, Brandy was 16 years old. She had been admitted to the facility in early 2005 and had been diagnosed with bipolar disorder and was at risk of suicide or self-harm. On Aug. 2, 2005, Brandy leaped from her second-story window, landed on a cement patio and seriously injured herself.

On July 17, 2007, Brandy turned 18 years old. The day before, she filed a lawsuit against Maryville. Brandy claimed that Maryville had been negligent in choosing not to take precautions against the risk that she would try to hurt herself. Brandy was seeking compensation for the expenses that she incurred due to her hospitalization and related medical expenses.

However, the injury and the bulk of the expenses incurred between the ages of 16 and 18 and as such, fell under Illinois Family Expense Act. By the terms of the act, the responsibility for paying for Brandy’s medical care was her parents’ responsibility rather than Brandy herself. Therefore, her parents had the right to sue. Brandy’s parents did not join her as a plaintiff in the lawsuit. Brandy’s parents divorced when she was 8, and Brandy was on her father’s health insurance at the time of her injuries. Brandy’s father indicated at a deposition that he did not intend to be involved in her lawsuit.

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Ann E. Guiffrida’s personal injury case against the owner of a bar called The Palace in downstate Hamburg, Ill., was dismissed because the plaintiff had mixed up the names of two corporations. One was The Palace Inc. and the other was Boothy’s Palace Tavern Inc.

Guiffrida filed a lawsuit in the federal district of the Central District of Illinois naming the defendant The Palace Inc. When venue was challenged, Hamburg, Ill., located on the Mississippi River, 80 miles north of St. Louis, is in the Southern District of Illinois, not the Central District. Guiffrida voluntarily dismissed the federal case and then filed the state claim in Madison County, Ill., although Hamburg is actually in Calhoun County, Ill.

When Guiffrida found out that she should have sued and served Boothy’s Palace Tavern Inc., she argued that this was merely a case of misidentifying the correct name or a misnomer that is covered by Section 2-401 of the Illinois Code of Civil Procedure. Rather than a mistake of the identify by the defendant, which would have required Guiffrida to satisfy Section 2-616(d) as to relating back, the judge in Madison County concluded that the mix-up fell within the category of misnomer.

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Lawyers who handle jury trials prepare their cases typically by reviewing all of the depositions, all of the issues of damages, the pleadings, the written discovery, the law that applies and the jury instructions that may be used. That would be just the start. Some lawyers, like me, abstract all of the depositions, which mean a summary by page is made for each deposition transcript. That allows the lawyer to both read again the transcripts of depositions that may have been taken some years ago and now refresh the memory of the lawyer who may call the witness either as a witness on direct examination or a witness that may be called by the opposition and cross-examined during the trial.

Lawyers spend a lot of time doing all of this work in reviewing the case, meeting with the clients, re-reading the file, the medical records, the photographs and other evidence, the preparation of demonstrative evidence, the preparation of visuals such as large blow-ups or use of computers to generate images for the jury, all the while perhaps spending little time on preparing the case for the jurors in anticipation of what they will discuss in the jury room.

In my practice before trial I utilize the benefits of a focus group, which would be a method to test-drive the elements of the case before an uninterested, unbiased group just like the jury, to evaluate strengths and weaknesses of the case. The discussions that these practice jurors have are many times the same kinds of discussions and deliberations that take place at the end of the trial in the jury room.

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A wrongful-death verdict that was vacated by a trial judge was affirmed on appeal by the Illinois Appellate Court. The jury’s verdict of $4.25 million was reached in a wrongful-death trial awarded to the family of a woman killed in a highway crash. But the trial judge vacated the verdict after it was revealed that the woman was married and that her parents and siblings were not her heirs under Illinois law. The judge would not let the woman’s husband file an amended complaint finding that he engaged in fraud with the woman’s family.

In an opinion that covered 107 pages written by Justice Robert E. Gordon, the panel found that the trial court was correct in vacating that verdict. But in a partial reversal, the panel will allow the woman’s husband to file an amended complaint.

The parents and eight siblings of 28-year-old Hawa Sissoko sued Alfred C. Baggiani and Roadway Express, the driver and owner of the semi-trailer that struck and killed Sissoko in 2007. She was standing behind her car in the right lane of the Indiana Toll Road outside Chesterton, Ind., when the accident occurred.

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Attorneys should be aware that corporations can be deposed by authority of Illinois Supreme Court Rule 206. In Illinois, a deposition notice pursuant to that Supreme Court rule would require the corporate party or government entity to designate and produce for deposition a witness to give testimony at a discovery deposition on behalf of the corporation with respect to the facts set out in the notice of deposition. This would be the person most knowledgeable about the corporation and those relevant facts. The corporation would be obliged to produce one or more of its officers, directors, agents, employees or other persons who have knowledge on the subject matter of the inquiry.

The Illinois Supreme Court rule is similar to the Federal Rule 30(b)(6). A designated representative who gives testimony under Illinois Supreme Court Rule 206(a) may not be contradicted by any other corporate representative at trial. SCR 206(a)(1) also grants subpoena power to depose a corporate representative who is a non-party to the case. In the subpoena it should be explained what the subject matter of the deposition would be; what matters known are reasonably available to the corporation should be made available at the deposition.

The corporate representative’s testimony is binding on the company. Testimony given at a deposition may be considered a party admission that precludes the corporation or a party in the lawsuit from contesting the essential elements of its claims or defenses later on in the litigation. In some cases, the corporate representative with the most knowledge may be a former employee of the corporation, partnership or entity.

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On April 19, 2010, Frances Villarreal was stopped at a red light on eastbound 67th Street at Cicero Avenue in Chicago.  Villarreal was waiting to make a right turn when her car was rear-ended by the defendant, Cynthia Zaragoza.  The crash occurred during the morning rush hour.

Villarreal claimed that she suffered an aggravation of bulging discs at L4-5 and L5-S1, as well as a sacroiliac joint dysfunction, right shoulder sprain, thoracic/lumbar sprains and a right knee contusion.  Her medical bills totaled $12,163.

The defendant denied that she was negligent and claimed that Villarreal stopped suddenly and was holding a beverage. She also disputed the nature and extent of her claimed injuries and noted that photographs showed no damage to Zaragoza’s vehicle.  There were only minimal scratches to Villarreal’s car.

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On Aug. 13, 2011, Roland P. Wilson was crossing the street after leaving the tavern, Hot City Lounge, 7342 S. Racine Ave., Chicago, Ill., when he was hit by a vehicle that fled the scene. Wilson,  66, suffered a fractured right leg and required surgery.  Wilson believed the hit and run vehicle belonged to Sammie Cooper, who had been another patron at Hot City Lounge. Wilson was not clear as to whether Cooper was the driver, however.

Wilson told the police in December 2011 that he had obtained a license plate number.  The license plate was traced to Cooper who had subsequently become incapacitated due to an unrelated medical condition.  The police did not conduct any investigation.

Wilson filed a negligence lawsuit against Cooper and a Dram Shop Act claim against Hot City Lounge and its individual owner. 

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