The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

Illinois Supreme Court Sets Civil Argument Schedule for May

By Kirk Jenkins on Posted in Illinois

Yesterday the Illinois Supreme Court published its Oral Argument Calendar [pdf] for the May term, and the Court will hear oral argument in eight civil cases. The cases, with the issue or issues presented in each, are:

May 22:

Moore v. Chicago Park District, No. 112788 – Does an unnatural accumulation of snow and ice constitute the ‘existence of a condition of any public property’ as this expression is used in Section 3-106 of the Tort Immunity Act? See Tort Law.

Wilson v. Edward Hospital, No. 112898 – Are actual agency and apparent agency separate claims for purposes of the res judicata doctrine and the prohibition against claim-splitting set forth by the Supreme Court in Hudson v. City of Chicago, 228 Ill.2d 462 (2008) and Rein v. David A. Noyes & Co., 172 Ill.2d 325 (1996), so that summary judgment entered on the actual agency claims in plaintiffs’ initial suit bars plaintiffs’ apparent agency claims in a refiled suit, even in the face of a ruling that there is a question of fact as to the apparent agency claims? See Tort Law.

Rush University Medical Center v. Sessions, Nos. 112906/112993 – Does the doctrine holding that self-settled spendthrift thrusts are revocable per se survive the enactment of the Fraudulent Transfer Act? See Trusts and Estates.

Choate v. Indiana Harbor Belt Railroad Co., No. 112948 — (1) Does a defendant landowner have a duty of due care with respect to a nearly thirteen-year old injured while trying to jump aboard a slow-moving train on the landowner’s tracks? (2) Was the expert opinion presented by plaintiff sufficient to support the jury’s verdict on the grounds that improvements were reasonably practicable and would have prevented the accident? See Tort Law.

May 23:

Carter v. SSC Odin Operating Co., No. 113204 – (1) Is an agreement mandating arbitration of all claims for more than $200,000 arising out of nursing home claims void for lack of mutuality on the grounds it is illusory? (2) Is an agreement to arbitrate applicable to a wrongful death claim where plaintiff signed the agreement only in the status of decedent’s "legal representative"?  See Arbitration.

Martin v. Keeley & Sons, Inc., No. 113270 – Where the I-beam on a bridge the plaintiffs were constructing collapsed and fell, did the plaintiffs state a triable issue of fact on (1) the "relationship" prong of duty to preserve evidence, and (2) the "foreseeability" prong of the duty, meaning that a reasonable person would have foreseen that the beam was material to a potential civil action?  See Tort Law.

Country Preferred Insurance Co. v. Whitehead, No. 113365 – Is the provision of an Illinois automobile insurance policy imposing a two-year statute of limitations on uninsured motorists claims invalid as against public policy with respect to an accident which occurred in Wisconsin, where the statute of limitations for uninsured motorist claims is three years?  See Insurance.

In re Marriage of Coulter (Coulter v. Trinidad) – No. 113474 – May a trial court deny a petitioner’s request for a preliminary injunction barring removal of the couple’s minor children, pending a full hearing, where the parties had previously agreed that the wife could remove the children from the state at any time after 36 months from entry of judgment? See Domestic Relations.

Why Judicial Vacancies Matter – Part I of a Series

By Kirk Jenkins on Posted in Appellate Practice

As Chief Justice John Roberts observed last year [pdf], judicial nominations have become something of a game for the political branches of the Federal government. Slow-walking judicial nominations – or even bringing the processing of new nominees to a complete halt – is either the last bastion of freedom or an assault on the Constitution. Both parties are comfortable making either argument, depending on which holds the political balance of power at any given moment. The voters don’t care, and nobody’s hurt.

Except somebody is hurt. Don’t believe me? There are currently 874 authorized Federal judgeships [pdf]. Eighty-two are currently vacant.  Sixteen more judgeships will become vacant within the next nine months.   That vacancy rate has been steady for many months, and with the general election campaign in full swing, prospects seem dim for making any significant progress in 2012.

Now look around your firm or legal department. Imagine one out of every ten senior attorney positions was vacant. Think that might slow down the work?

Judicial vacancies reduce public confidence in the judicial system. Faced with the prospect of putting their lives on hold for a year or more while they wait for committee votes and an up-or-down vote in the Senate, highly qualified attorneys are opting not to seek judicial appointments. Since criminal cases take precedence on the docket, civil litigants are waiting longer than ever for trial. Meritorious claims wait longer for compensation. Defendants facing meritless claims wait longer to remove the cloud that an unresolved lawsuit puts on a business. Since trial is further off, discovery stretches on and on, increasing the costs of litigation. As ABA President William T. Robinson III wrote, “Businesses face uncertainty and costly holdups, preventing them from investing and creating jobs.”

To be clear, I’m not advocating the confirmation of any particular nominee, or even the President’s nominees in general, as opposed to one or more nominees which the Senate might prefer. Rather, my point is the same one argued by ABA President Robinson, The New York Times,  and other newspapers around the country, see here, and here , and here, and here: the White House and the Senate should take action to fill the vacant judgeships with qualified candidates on an emergency basis.

Because an emergency is exactly what many districts around the country are facing. The Administrative Office of the United States Courts defines a district court as a “judicial emergency” when (1) the court has two or more judgeships and only one active judge; (2) the court’s “weighted filings” are more than 600 per judgeship; or (3) “weighted filings” are between 430 and 600, and the vacancy is more than 18 months old. A vacancy on a court of appeals is an “emergency” if: (1) the court’s “adjusted filings” per three-judge panel exceed 700; or (2) “adjusted filings” are between 500 and 700 per panel, and the vacancy is more than 18 months old. There are currently thirty-two judicial emergencies in the district courts and seven in the Circuits.  According to the Center for American Progress, more than 160 million Americans live in a jurisdiction declared a judicial emergency.

The four longest-standing judicial emergencies in the district courts are:

  • The Eastern District of North Carolina: This court currently carries 630 weighted filings per judgeship. Between 2010 and 2011, new filings increased 18.8%, and pending filings were up 10%. Judge Malcolm J. Howard took Senior status on December 31, 2005. There is no nominee from the White House.
     
  • The District of Maryland: This court carries 495 weighted filings per judgeship. Between 2010 and 2011, pending filings were down 1.8%. Judge Peter J. Messitte took Senior status on September 1, 2008. The President nominated Judge George Levi Russell III, an Associate Judge on the Circuit Court of Maryland for Baltimore City, to succeed Judge Messitte on November 10, 2011. Judge Russell is awaiting a confirmation vote by the full Senate.
     
  • The Western District of Texas: One of five pending judicial emergencies in the Texas District Courts, this court carries 751 weighted filings per judgeship.  Between 2010 and 2011, pending filings increased 5.7%. Judge W. Royal Furgeson Jr. took Senior status on November 30, 2008. There is no nominee from the White House.
     
  • The Western District of Wisconsin: This court carries 600 weighted filings per judgeship. Between 2010 and 2011, pending filings were up 45.7%. Judge John C. Shabaz took Senior status on January 20, 2009. There is no nominee from the White House.

New Civil Opinion Coming From the Illinois Supreme Court

By Kirk Jenkins on Posted in Illinois

The Illinois Supreme Court has announced that on the morning of Thursday, April 19, it will file an opinion in one civil case [pdf]:

  • Santiago v. E. W. Bliss Co., No. 111792 – When an injured plaintiff intentionally files a complaint using a fictitious name, without leave of court as provided in 735 ILCS 5/2-401, and subsequent to the expiration of the statute of limitations, files an amended complaint with the correct plaintiff’s name, should the court dismiss with prejudice as a sanction, or because the limitations period has expired and the amended complaint does not relate back to the original filing? See Civil Procedure.

Products Liability Law Ebbs as California Supreme Court Issues Definitive O’Neil Opinion

By Angelo Carosio on Posted in California

The California Supreme Court has issued a resounding and conclusive opinion rejecting the surging liability theory that a product manufacturer may be held liable for harmful defects in products made by third parties unless the manufacturer’s own product contributed substantially to the harm, or the manufacturer participated substantially in creating a harmful combined use of the products.

The Court’s unanimous opinion in O’Neil v. Crane Co. – issued Thursday – slammed the door on plaintiffs’ attempt to create “an unprecedented expansion of strict products liability,” and reaffirmed the “bedrock principle” that strict liability is premised on harm caused by deficiencies in the defendant’s own product.

The plaintiffs in O’Neil had postulated that the defendant valve and pump manufacturers should be liable for the harm caused by the plaintiff’s exposure to asbestos-containing insulation products (made by others) that were used on or near the defendant’s all-metal products. However, there was no evidence that asbestos insulation – as opposed to some other type of insulation material – was necessary for the defendants’ pumps and valves to function properly.

A product’s “mere compatibility for use” or even its foreseeable use with defective components is not enough to render the defendant’s product itself defective. The Court noted the absurdity that would follow recognition of plaintiffs’ liability theory. Manufacturers of the saws and tools used to cut and remove asbestos insulation would become the next targets in asbestos litigation. And taken to its logical extreme, match manufacturers might be required to warn about the hazards of dynamite.

“The broad rule plaintiffs urge would not further the purposes of strict liability. Nor would public policy be served by requiring manufacturers to warn about the dangerous propensities of products they do not design, make, or sell,” wrote Justice Corrigan, writing for the unanimous Court. A manufacturer of a non-defective product is unable to exert pressure on other manufacturers to make their products safe. Additionally, manufacturers of non-defective products should not shoulder a burden of liability for products, the sale from which they derived no economic benefit. Nor should strict liability require manufacturers to investigate the potential risks of all other products and replacement parts that might foreseeably be used with their own product and warn about such risks. This “unrealistic” and “excessive” burden would actually undermine consumer safety by inundating users with excessive warnings.

The Court did not expressly opine on, but rather left open the possibility of liability in the case of a product that requires the use of a defective product in order to operate, or if a product manufacturer specifies or requires the use of a defective replacement part. However, the Court noted that in both contexts, “the policy rationales against imposing liability on a manufacturer for a defective part it did not produce or supply would remain.” 

Now that two state Supreme Courts – California and Washington (see Braaten v. Saberhagen Holdings (2008) 165 Wn.2d 373,and Simonetta v. Viad Corp. (2008) 165 Wn.2d 341.) – have recently rejected this proposed expansion of products liability law in the asbestos context, expect that many other jurisdictions will follow and cap this emerging theory.

California Supreme Court Hears Argument in Pivotal Asbestos Product Liability Case

By Angelo Carosio on Posted in Asbestos, California, Products Liability

The California Supreme Court heard oral argument in O’Neil v. Crane Co. The Court’s decision will likely define an important area of strict products liability law in California – specifically, it will expand or limit the duty of product manufacturers to warn about the hazards of replacement parts made by others that are subsequently incorporated by the purchaser into the manufacturer’s original product. 

O’Neil arises out of the plaintiff’s exposure to asbestos-containing gaskets and packing materials used in and around the defendants’ valves and pumps, which were incorporated by the Navy into the steam propulsion system aboard the USS Oriskany, where the plaintiff served while he was enlisted. Though the pumps and valves delivered to the Navy originally incorporated asbestos-containing gaskets and packing, all parties agreed that by the time plaintiff served aboard the Oriskany, the original asbestos packing and gaskets had been removed and replaced with packing and gaskets manufactured by third parties. Nevertheless, the plaintiff argued the pump and valve manufacturers had a duty to warn him regarding the hazards of asbestos.  

Prior to O’Neil this legal issue had been addressed by the California Court of Appeal, most notably in Taylor v. Elliot Turbomachinery Co., Inc. (2009) 171 Cal. App. 4th 564. There, the First Appellate District noted, on facts indistinguishable from the present case, that the plaintiff’s injury did not come from the defendants’ equipment itself, but instead was released from products made or supplied by other manufacturers, though used in conjunction with the defendants’ equipment. Thus, the defendant manufacturers were not part of the chain of distribution of the injury-causing product, which was actually the asbestos-containing insulation. The court held that California law did not recognize a duty to warn of defects in another manufacturer’s product.  The Second District Court of Appeal below in O’Neil rejected the reasoning of Taylor, and instead ruled that a manufacturer is strictly liable for dangerous products with which its product will necessarily be used. The Supreme Court granted certiorari in O’Neil to resolve the conflict between the O’Neil and Taylor decisions.

At oral argument, one of the Justices’ primary concerns appeared to be factual in nature: What exactly was meant by the parties’ contention that the Navy “specified” or “required” the use of asbestos-containing insulation? As phrased by Chief Justice Cantil-Sakauye, did the Navy “say the magic word, ‘asbestos’” in its specifications to the defendants, or did the Navy merely promulgate performance specifications and the defendant manufacturers independently determined that asbestos-containing insulation was the best (or even only) material suitable to meet those requirements?  

Another significant concern of the Court appeared to be whether the pumps and valves were capable of functioning without the asbestos-containing components. In other words, was asbestos required for the pumps and valves to function properly, or was asbestos merely required by the dictates of the steam propulsion system, and not the design of the valves or pumps themselves. The Court seemed troubled settling on the proposition that the pumps and valves could be deemed defectively designed if the pumps and valves were “asbestos neutral,” and could function just as well in other systems utilizing non-asbestos containing materials. 

Ultimately this latter point may be where the court draws the line, assigning a duty to warn about replacement parts made by others only if the replacement part is identical to the original hazardous part, and the replacement part is essential to the function of the defendant’s product. The Court will issue its opinion within 90 days. 

Two New Civil Opinions Coming From the Illinois Supreme Court

By Kirk Jenkins on Posted in Illinois

The Illinois Supreme Court has announced that on the morning of Thursday, October 27, it will file opinions in two civil cases [pdf]:

  • A.B.A.T.E. v. Giannoulias, No. 110611 — Does a state statute permitting the transfer of funds from the Cycle Rider Safety Training Fund to the General Revenue Fund violate the Takings Clause of either the federal or state constitutions? See Constitutional Law.
     
  • Sierra Club v. Illinois Pollution Control Board, No. 110882 — (1) Does a petitioner in an individual adjusted standard proceeding before the Illinois Pollution Control Board have a burden of proof with respect to the standards set forth in Section 27(a) of the Illinois Environmental Protection Act? (2) Must the Board make written findings or identify substantive evidence supporting its resolution of the Section 27(a) factors in such a proceeding? (3) Do environmental activist groups have standing to seek judicial review of the Board’s decision in an individual adjusted standard proceeding? See Government Law.

Is It Time For Florida to Adopt Daubert and Reject Frye?

By on Posted in Florida

Witnesses called to testify as “experts” are cloaked with prestige and authority, and positioned to exert heavy influence on juries. This is accentuated with areas of expert testimony that are highly technical or specialized. The U.S. Supreme Court recognized in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595 (1993), that “[e]xpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it.”  

In Daubert, the United States Supreme Court created a seismic shift in the test for the admissibility of expert testimony. Daubert held that Congress’ adoption of the Federal Rules of Evidence displaces the general acceptance test and requires the federal trial judge to ensure that any expert testimony admitted is both reliable and relevant. The Court has also clarified that an expert’s conclusions are not beyond the reach of the relevance/reliability test, and that the relevance/reliability test is not limited to the “scientific” and applies to all expert testimony. The Court has therefore given federal trial court judges the important responsibility of ensuring that expert testimony is based on reliable methodology and fits the facts of the case.

Florida, on the other hand, is among a shrinking minority of states still clinging to the antiquated Frye test. See Frye v. United States, 293 F. 1013, 1013-14 (D.C. Cir. 1923). This test does not provide trial judges with the legal tools for ensuring that “expert” witnesses are qualified and that their testimony is relevant, reliable and appropriate for a jury. Instead, the “test” is nothing more than a determination whether an expert’s methodology is “generally accepted.” This nebulous standard of “general acceptance” is not an adequate check on the integrity of expert evidence. The problem is compounded by Florida Supreme Court precedent holding that the Frye test applies only to a minority of cases involving expert testimony – those involving “new science.” If an expert’s testimony is based on science that the court does not deem “new” or derived from a field that is not traditionally “science,” then the test is not even triggered. So-called “pure opinion” testimony purportedly based on an expert’s overall experience is also beyond the reach of the Frye test.

This shortcoming in Florida jurisprudence undermines the integrity of the court system and quality of justice dispensed by trial courts. It also threatens to diminish the State’s many advantages in attracting business, particularly in light of the fact that most states in the Southeast have already modernized their laws governing the admissibility of expert evidence, including  Georgia by legislation enacted in 2005 and North Carolina by legislation effective as of October 1, 2011.

The Florida Legislature can and should solve this problem by statutorily adopting Daubert to place Florida on equal footing with most other jurisdictions and federal courts.

[Robert C. Weill has co-authored a full-length article advocating for the Florida Legislature’s adoption of Daubert which will be published in the Nova Law Review in February 2012.]

6th Circuit Paging Ph.D. Jones?: Reliable Physician Causation Testimony Requires More Than Clinical Experience

By on Posted in Drug & Device, Mass Torts

In Thomas, Melau, and Anderson v. Novartis Pharms. Corp., the Sixth Circuit Court of Appeals recently affirmed a trio of cases prohibiting the testimony of treating physicians as specific causation experts. Though the appellate court’s opinion was not recommended for full-text publication, it nonetheless offers a salient reminder of a Daubert rule well-enunciated in the Sixth Circuit: A physician’s presumed expertise is in the diagnosis and treatment of disease, not necessarily in the scientifically reliable determination of its underlying cause.

Thomas involved three plaintiffs who filed separate lawsuits, but whose claims were heard by the Middle District of Tennessee pursuant to consolidated MDL proceedings. They alleged they developed biophosphonate-induced osteonecrosis of the jaw after taking Zometa and Aredia, drugs manufactured by Novartis for the prevention of bone maladies, typically in cancer patients. The plaintiffs retained general causation experts, but relied for proof of specific causation upon their non-retained treating physicians. Each plaintiff’s treating physician was excluded, but it is the exclusion rationale in Thomas that is of interest here.

The court began its analysis by noting that Thomas’ physician, Dr. Johnson, “appears to have used some form of a differential diagnosis, or differential etiology, which we have previously recognized is a proper basis for determining the cause of a medical condition when done properly.” Id. at 5. The propriety of such a method, however, depends upon the underlying expertise of the practitioner. The court acknowledged that Dr. Johnson was “unquestionably an experienced oral surgeon with many years of practice and training. He treated other patients with osteonecrosis of the jaw, and has read literature and attended conferences on osteonecrosis of the jaw.” Id. at 6. However, “[b]ecause Thomas relied on Dr. Johnson to give an expert opinion on the cause of his osteonecrosis of the jaw, it is not enough to show that Dr. Johnson can recognize and treat osteonecrosis of the jaw.” Id. 

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Illinois Supreme Court Sets Civil Argument Schedule for September

By Kirk Jenkins on Posted in Illinois

This afternoon the Illinois Supreme Court published its Oral Argument Calendar [pdf] for the September term, and the Court will hear oral argument in ten civil cases. The cases, with the issue or issues presented in each, are:

September 20:

Simpkins v. CSX Corporation, No. 110662 — Does an employer owe a tort duty of due care to the immediate family of its employees? See Tort Law.

The Forest Preserve District of Du Page County v. First National Bank of Franklin Park, No. 110759 & 110760 — (1) Has a plaintiff negotiated in good faith prior to filing a complaint for condemnation where it fails to offer the full amount of the highest appraisal it receives, fails to attach an appraisal to its offer letter and adds a short time-frame for acceptance to its offer? (2) Are clauses in Annexation Agreements providing that zoning and Special Use Designations survive the expiration of the agreement contrary to Illinois law? (3) Is Section 7-121 of the Eminent Domain Act, which provides that fair market value in a condemnation proceeding shall be determined as of the date the action was filed, unconstitutional as applied under Kirby Forest Industries v. United States, 467 U.S. 1 (1984)? See Government Law.

Wisnasky-Bettorf v. Pierce, No. 111253 — Under Section 7-61 of the Illinois Election Code, 10 ILCS 5/7-61, must an established political party timely file a resolution with the appropriate official in order to fill a vacancy in nomination when no candidate appeared on the primary ballot for that party or ran as a write-in candidate? See Election Law.

September 21:

Citizens Opposing Pollution v. ExxonMobil Coal U.S.A. – Nos. 111286 & 111304 — Does either the Surface Coal Mining Land Conservation and Reclamation Act, 225 ILCS 720/1.01 et seq., and/or the Water Use Act of 1983, 525 ILCS 45/1, permit a private right of action for enforcement? See Civil Procedure.

Sandholm v. Kuecker – No. 111443 — (1) Is the Illinois Citizen Participation Act, 735 ILCS 110/1, unconstitutional, either on its face or as applied? (2) Is the attorneys fees provision of the Act limited to fees incurred in moving to dismiss under the Act?  See Constitutional Law.

The Township of Jubilee v. The State of Illinois – No. 111447 — Does the State’s filing of a counterclaim, after its motion to dismiss has been denied, waive a claim of sovereign immunity? See Government Law.

Crossroads Ford Truck Sales, Inc. v. Sterling Truck Corporation – No. 111611 — (1) Are claims brought under Section 4(d)(6) of the Franchise Act, 815 ILCS 710/4(d)(6), within the exclusive jurisdiction of the New Motor Vehicle Review Board? (2) Did the plaintiff otherwise state claims for relief under the Franchise Act? See Contract Law.

September 22:

Santiago v. E.W. Bliss Company – No. 111792 — When an injured plaintiff intentionally files a complaint using a fictitious name, without leave of court as provided in 735 ILCS 5/2-401, and subsequent to the expiration of the statute of limitations, files an amended complaint with the correct plaintiff’s name, should the court dismiss with prejudice as a sanction, or because the limitations period has expired and the amended complaint does not relate back to the original filing? See Civil Procedure.

Nowak v. The City of Country Club Hills – No. 111838 — May an injured public employee simultaneously collect the benefits provided under the Public Employee Disability Act, 5 ILCS 345/1, as well as the health benefit provided by Section 10(a) of the Public Safety Employee Benefits Act, 820 ILCS 320/10(a)? See Government Law.

Reliable Fire Equipment Co. v. Arredondo – No. 111871 — What is the appropriate standard for determining whether an employer has a protectable interest in its customer list such that a non-compete clause in an employment agreement is enforceable? See Employment Law.

A Claim for Medical Expenses Is Limited to the Rate Negotiated by Plaintiff’s Insurer – So Rules The California Supreme Court in Howell

By on Posted in California, Insurance

 

Adding its voice to a continuing national debate, the California Supreme Court has adopted the minority rule and held that tort damages for past medical expenses are limited to those amounts actually paid and accepted as full payment for the services provided, when such amounts are determined by an existing agreement with the plaintiff’s insurance carrier. In such a case, an amount otherwise “billed” using rates outside of the agreement is irrelevant. In its opinion, the Court explained that only the prenegotiated amount actually paid by, or on behalf of, the plaintiff to settle a previous medical bill is recoverable as economic damages, because such a payment is the extent of plaintiff’s actual loss. As a result, the collateral source rule does not apply, because the issue is the measure of plaintiff’s actual damages, not how they were paid. The Court noted that, to be recoverable, such damages must be both reasonable and actually incurred. While acknowledging that this could result in wildly different damages for the same injury, depending on whether the plaintiff was insured, this does not change the measure of a particular plaintiff’s damages. The Court noted a similar disparity in lost income damages between different plaintiffs with identical injuries. There were several amicus briefs filed in this matter, including one prepared by Sedgwick. For more details about Howell, see the Damages update page.

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