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Bayer offers $7 Billion Roundup Settlement

Tue, 17 Feb 2026 21:33:17 GMT

German Conglomerate makes a bid to end Roundup litigation

Bayer AG has offered to pay more than $7 Billion dollars as part of a settlement to resolve pending and future lawsuits where plaintiffs allege that exposure to Roundup Weedkiller caused their cancer. Bayer is seeking closure of the Roundup the claims after it purchased Monsanto - the American manufacturer of Roundup - several years ago. Bill Anderson, Chief Executive of Bayer, said in a recent interview that he expected the vast majority of plaintiffs with pending claims to agree to the global settlement. Reports indicate that the settlement relates to patient that experienced non-Hodgkin lymphoma, a type of blood cancer.

Roundup was originally developed by Monsanto in the 1970s. The active ingredient in Roundup is glyphosate. In 2015, the International Agency for Research on Cancer, a unit of the World Health Organization, identified glyphosate as a probable human carcinogen. Bayer, as well as the US EPA have disputed that determination.

While Bayer has resolved more than 130,000 Roundup claims, more than 65,000 claims remain active. And additional claims will likely arise in the future when other people exposed to the herbicide learn of their cancer diagnoses. Under the terms of the proposal, anyone exposed to Roundup before February 17, 2026 and diagnosed with non-Hodgkin lymphoma within 16 years of exposure is eligible. Bayer indicated it anticipates paying an additional $3 billion dollars on other Roundup cases.

Bayer is making the move after the United State Supreme Court agreed in January to hear an appeal of a $1.25 million dollar Missouri jury verdict in a Roundup case. Anderson did not address how a loss in the Supreme Court would impact the pending proposal.

Bayer Offers $7 Billion in Roundup Settlement Bid

Tue, 17 Feb 2026 21:00:43 GMT

German Conglomerate seeks end to Roundup Litigation

The Illinois Gender Violence Act

Tue, 03 Feb 2026 16:41:17 GMT

Illinois Employers face civil liability for workplace gender violence

THE ILLINOIS GENDER VIOLENCE ACT - IN A NUTSHELL

Under the Illinois Gender Violence Act (GVA) 740 IlCS 82/1, victims of sexual assault, domestic violence and other forms of gender related violence can bring civil actions against perpetrators even when criminal charges are not filed. The GVA defines two of the four acts of “gender violence” - though the definitions are a bit convoluted:

One or or more acts of violence of physical aggression satisfying the elements of battery under the laws of Illinois that are committed, at least in part, on the basis of a person’s sex;

A physical intrusion or physical invasion of a sexual nature under coercive conditions satisfying the elements of battery under the laws of Illinois, whether or nor the act or acts resulted in criminal charges, prosecution or conviction.

Under the Illinois Criminal Code, a person commits a battery when he or she knowingly, without legal justification, causes bodily harm or makes insulting/provoking physical contact with another individual. 720 ILCS 5/12-3. The Criminal Code requires physical contact.

AND EMPLOYERS MAY NOW FACE LIABILITY

In July, 2023 an amendment made it explicit that the GVA does extend to the workplace. As set forth in the Act, an employer is liable for gender-related violence in the workplace by an employee when the interaction arises out of and in the course of employment. Liability will only arise however, if the (1) the employee was directly performing his or her duties and the violence was the proximate cause of the injury or (2) while the agent of the employer was directly involved in the gender-related violence and the performance of the work was the proximate cause of the injury.

Liability will only extend to the the employer however if it can be shown that (1) the employer failed to supervise, train or monitor the offending employee or 2) the employer failed to investigate and respond to reports directly provided to appropriate management personnel.

Damages under the Act may include injunctive relief, and actual damages, damages for emotional distress and punitive damages. And importantly, the GVA is a fee-shifting statute - so a successful plaintiff may seek to recover attorneys fees.

So, in cases of sexual harassment, may a plaintiff, include a count for damages under the GVA? The answer is an unqualified yes. And the contact need not be excessive or dramatic or prolonged - so long as there was no consent nor any justification for the physical contact. In fact, the Act notes that a legitimate threat that the harasser will commit an nonconsensual act is sufficient.

MENTAL SUFFERING DAMAGES ALLOWED UNDER NEW LAW - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Illinois Governor Rod Blagojevich recently legislation that will permit successful plaintiffs to receive jury awards for grief, sorrow and mental suffering in Wrongful Death cases. The new law finally allows the surviving spouse and next of kin to recover for their anguish over the loss of their loved one. Prior to passage of the law, family members couldn’t even mention their grief at trial, as any such mention just might be grounds for reversal of the verdict. Illinois has now joined with 23 other states that allow such damages.

FILE THOSE RULE 222 AFFADAVITS!!! - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Fourth District Appellate Court of Illinois[Champaign County] recently came down with an opinon that will make Illinois personal injury attorneys check their complaints a little more closer. In Grady v. Machini[opinion filed on July 31, 2007] the plaintiff filed a complaint to recover damages for injuries she suffered in an auto accident. The complaint did not have an affadavit, as required by Supreme Court Rule 222, stating whether the damages sought did, or did not exceed $50,000. The case went to trial and the jury awarded $97,700. The defendant brought a post-trial motion to reduce the damages to $50,000. The trial court did so and the plaintiff appealed. The Appellate Court felt that Rule 222 was very clear – in effect, it requires that a party to attach an affadavit stating whether the damages sought did or did not exceed $50,000. The rule goes on to say any judgment that exceeds $50,000 shall be reduced to $50,000 if the damages sought do not exceed the $50,000 mark. The court ruled that as plaintiff did not file an affadavit asying she was seeking more than $50,000 she could not recover more than that amount. Ouch.

ILLINOIS HEALTHCARE SERVICES LIEN ACT - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

I recently had a situation with an Illinois Healthcare provider that I had managed to avoid for the last twenty years. Represented an older man for injuries he had received in an automobile accident. The client was a very nice guy who had come here from another country decades ago, worked hard and raised his family. Didn’t have much education, but always worked. He got pretty smashed up in the collision and had a fairly substantial hospital bill. He didn’t have any insurance at the time, so the hospital agreed to issue a lien for the outstanding amount, to be paid out of any settlement. Typically, [at least in my experience] the healthcare provider will usually accept a discounted amount in FULL AND FINAL SETTLEMENT OF ANY OUTSTANDING BILL. The reduction is an implicit acknowledgement that but for the efforts of the attorney, the medical bill would not have been paid. Getting back to my client, his bill was outstanding for a long time, so the hospital sent it out to collection. Collection agency contacts me and advises that after payment of the lien, they will pursue the client for any outstanding amount. I call the hospital and speak to personnel in management who agree that normally, after payment of the reduced amount, they forget about the balance. I pass this onto the collection agency, who insists on pursuing the client for any amounts outstanding. So although the hospital has conceded that their custom and practice is to accept the discounted amount in full settlement, the collections bloodsuckers refuse to budge. The inmates have apparently taken over the asylum. My only option is to bring a Motion to Adjudicate the Lien, which isn’t a particularly good option. Under 770 ILCS 23/45, healthcare providers are entitled to go after the entire amount. Hopefully the judge will recognize the unfairness of the collection agency ignoring hospital policy, and give my client a break. To be continued…

SEVENTH CIRCUIT WEIGHS IN ON RETALIATORY DISCHARGE - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The United States Court of Appeals for the Seventh Circuit, located in Chicago, Illinois, recently discussed the proof a plaintiff must offer when prosecuting a retaliatory discharge case. In McCoy v. Maytag, Thomas McCoy brought a retaliatory case against his former employer, Maytag, for firing him after he filed a Workers Compensation Act. The Court, in the course of its opinion, set forth the elements a Illinois plaintiff must prove: 1) that he was the defendant’s employee before the injury; 2) that the employee exercised a right granted by the Illinois Workers’ Compensation Act and 3) that he was discharged from his employment with a causal connection to his filing the Workers’ Compensation claim. The hard part in these cases is the third element – causation. The Court noted that “The element of causation is not met if the employer has a valid basis, which is not pretextual, for discharging the employee.” So what does that mean in English? The Court explained that in order to show pretext, “…a plainitff must offer evidence to indicate that the employer did not honestly believe the reasons it gave for its action and is simply lying to cover its tracks.” Pretext “…means more than a mistake on the part of the employer; pretext means a lie, a specifically a phony reason for some action.” In short, the plaintiff has to show the employer’s reason for discharge was a lie. Not an easy thing to prove, as Mr. McCoy found out. The Seventh Circuit upheld the Trial Court’s decision to grant summary judgment against plaintiff, ruling that the plaintiff’s failure to provide regular updates to justify his absence from work[required under the Collective Bargaining Agreement]was a non-pretextual reason for the termination.

TRENT LOTT HAS AN EPIPHANY ABOUT INSURANCE ABUSES - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Senator Trent Lott, the powerful Republican Senator from Mississippi, has seen the light. Lott, who, until very recently, was a longtime defender of insurance companies, is no longer. Senator Lott lost his home to Hurricane Katrina in 2005. He filed a claim with his insurer, State Farm. The “Like a Good Neighbor” people denied coverage on Lott’s claim, as well as the claims of tens thousands of other homeowners. State Farm claimed Lott’s home, and the other homes, were actually damaged by flooding, a non-covered risk under the policies Lott filed suit, litigated the case over a year, and only recently settled. That experience caused Lott to re-think his allegiance to insurance companies. He has now concluded that the insurance industry needs some reforms[gasp!!!]. To quote Senator Lott: “I’m like a woman scorned. I’m prepared to to continue to kick their fanny until the last day I’m alive on this Earth because they have mistreated too many people.” Better late than never Senator.

HOW LOW CAN PROGRESSIVE INSURANCE GO? - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Pretty low, if the allegations made by an Atlanta couple prove to be true. Bill and Leandra Pitts, the couple in question, were injured in a 2004 auto accident. According to an recent article in the Atlanta Journal-Constitution, the insurance company involved, Progressive Insurance, established a new low while “investigating” the claims made by Mr. and Mrs. Pitts. According to the article, investigators for Progressive snuck into the Pitts’ church in August of 2005, posing as prospective members. Then they slimed their way into a private confessional meeting at a church member’s home, hoping to overhear a damaging admission from the Pitts about the auto case. After the Pitts learned of Progressive’s tactics, they filed a lawsuit claiming invasion of privacy and fraud. Progressive’s President and CEO, Glenn Renwick issued a statement acknowledging that the story appeared to have merit and apologizing for the actions of the investigators. Interestingly, Renwick’s statement didn’t mention what disciplinary action, if any, were taken against the investigators in question.

CHICAGO HEAVYWEIGHT BEING SUED - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

According to a recent article in the Chicago Sun-Times, the next fight for Chicago heavyweight Andrew Golota might take place in a Chicago courtroom. Golota is being sued by a Chicago woman after a traffic accident in April, 2007. The woman, Juliet Mendez, is claiming that Golota blew a stop sign and slammed into her car. The lawsuit claims that Mendez suffered permanent injuries to her back and neck. Golota’s wife, attorney Mariola Golota, claimed that the accident was a simple fender bender. According to the Sun-Times article, no ambulance was called to the scene, and the accident report referred only to property damage.

LORD OF THE DANCE STAR PREVAILS AFTER RAPE ACCUSATION - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

According to a recent Chicago Sun-Times article by Bill Bird, Michael Flatley, the Irish dancer, also known as the Lord of the Dance, has prevailed in his lawsuit against a Joliet woman and her attorney. The woman, Tyna M. Robertson had accused Flatley of raping her in Las Vegas in October of 2002. No criminal charges were ever filed. Some five months later, Robertson filed a lawsuit against Flatley in Lake County, Illinois, seeking $35 million dollars in damages. Dean Mauro acted as her attorney. Mauro directed a letter to Flatley demanding millions of dollars to settle the case and accused Flatley of rape. Flatley then countersued Mauro and Robertson for extortion and defamation. The case was concluded several weeks ago, with Mauro paying Flatley more than $400,000. A default judgment has been entered against Robertson. Robertson subsequently had a son with Chicago Bears star linebacker Brian Urlacher and was involved in litigation involving visitation rights in October of 2006.

ILLINOIS TEEN SETTLES WITH POLICE AFTER GETTING TASERED - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

A south suburban teenager, Travis Alexander, has agreed to settle his lawsuit against a south suburban Chicago Police Department. Alexander sued the Riverdale Police Department after he was tasered and attacked by a police dog. Alexander was 17 at the time of the incident. He and a friend were walking home from a store when they were stopped by a police officer. The police maintained they had received a tip that Alexander’s friend was involved in a drug deal. Alexander and his friend ran, claiming that they were scared of the Police. Alexander was only two doors from his house when caught. He was then handcuffed and tasered. In addition, the plaintiff alleged that the police allowed a German Shepherd Police dog to attack Alexander, causing him injuries on the leg and head. Although no contraband was found on Alexander, he was charged with resisting arrest and trespassing. He was ultimately exonerated of those charges. As a result of the incident, Alexander suffers from post-traumatic stress disorder. The Riverdale Police department agreed to pay Alexander $345,000 to dismiss the case.

MORE DETAILS ON CHICAGO PRIEST ACCUSED OF SEXUAL MISCONDUCT - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

More details are emerging about precisely how early Church authorities were aware of alleged sexual misconduct on the part of Rev. Donald J. McGuire. McGuire was a teacher at Loyola Academy in the late 1960’s. In 1969, Rev. Charles Schlax contacted the the president of Loyola, Rev. John Reinke, to complain about McGuire. A young man had complained to Fr. Schlax that McGuire was a “pervert”. The youth had apparently been staying at Loyola for as much as a week at a time, including nights. Schlax had requested an investigation into McGuire. Shortly thereafter McGuire was informed he was going to take a sabbatical. Then in 2000, several families who had sons working as aides to McGuire expressed more concern about McGuire’s behavior. One family reported that their son told them McGuire was overwhelming him with pornography and sexual discussions. Another family complained that McGuire was pressuring their son to avoid college, family and friends – and instead spend more time with McGuire. McGuire apparently encouraged the kid to sleep on the floor in his room, or in his bed. Shockingly, McGuire’s superiors have indicated as recently as 2005 that they had no knowledge of McGuire’s proclivities. Turns out they had plenty of notice and allowed this guy to terrorize kids for 40 years.

RECOVERY FOR PSYCHOLOGICAL INJURY UNDER ILLINOIS WORKMENS' COMPENSATION ACT - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Illinios workers seeking to recover for non-traumatically induced mental disease have significant evidentiary obstacles to overcome. In order to prevail, the worker must show: 1) the mental disorder arose in a situation of greater dimensions that day to day emotional strain and tension present in every workplace; 2) the mental condition must exist in reality, from an objective standpoint and 3) the employment conditions, when compared with other potential non-employment explanations, were the major contributing cause of the mental disorder. Northwest Suburban Special Education Organization v. The Industrial Commission (1st Dist. 2000), 312 Ill.App. 3d 783, 245 Ill.Dec. 416, 728 N.E.2d 498. My office recently tried a case on behalf of a worker who sustained non-traumatically induced panic disorder as a result of work conditions. This individual had an underlying psychological issue that was well under control, and, importantly, the employer was well aware of the condition. Thankfully we were able to provide convincing evidence that my client was singled out for harsh treatment none of this co-workers had to endure. In addition, we presented evidence that the harsh treatment continued even after the employee complained that it was aggravating his underlying condition. My client’s deteriorating physical and psychological conditions were properly documented by health care professionals. Finally, his domestic situation was great – there were no other explanations for why he went into a tailspin. The arbitrator decided in my client’s favor and entered a nice award on my client’s behalf.

STATE OF ILLINOIS EMPLOYEE LOSES HARASSMENT SUIT - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

A federal jury recently returned a verdict against Carlos Estes in his sexual harassment suit against Teyonda Wertz, his boss at the Illinois Department of Human Services. Estes was a driver/special assistant for Wertz, who is Chief of Staff for the Illinois Department of Human Services. The portion of the case that got the most attention arose out of a trip Estes and Wertz made down to Springfield, Illinois for a conference. According to Estes, he learned upon his arrival to Springfield that he had to share a hotel suite with Wertz. Estes testified that after getting settled into the room, Wertz ordered him into the bedroom and then ordered him to take off his clothes and make love to her. Estes testified that he refused to have sex with Wertz, but did change into pajamas and laid down on the bed, where he eventually fell asleep next to Wertz. Wertz testified that Estes volunteered to share the suite. She further testified that she stayed in the bedroom portion of the suite the entire time[alone]with the door shut. In summing up the trial, one of the jurors noted, “…speaking for myself, I didn’t believe either one of them.”

TAX ISSUES SATISFY PUBLIC POLICY REQUIREMENT FOR ILLINOIS RETALIATORY CLAIM - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The United States Court of Appeals for the Seventh Circuit recently weighed in on the “public policy” element Illinois retaliatory discharge plaintiffs must show. In Benders v. Bellows and Bellows, the plaintiff filed a three count complaint in federal court after her termination from the defendant law firm. The third count of her complaint alleged she was terminated in retaliation for threatening to report a dispute about her employement status to the IRS. The trial court granted the defendant’s motion for summary judgment and Benders appealed. The underlying facts involve a romantic relationship gone sour between the plaintiff[the office administrator] and one of the principals at the firm. In December of 2003, some months prior to plaintiff’s termination, her status was changed from employee to independent contractor, pursuant to a discussion she had with a name partner at the firm. Benders claimed the change was only termporary and, after a short period of time, she was to regain her employment status. In any event, from that date until her discharge, her checks listed her as an “independent contractor”. In April of 2004, after receiving another paycheck noting her independent contractor status, plaintiff contacted Joel Bellows and reminded him that she wanted to refinance her home and needed her paystub to reflect her status as an employee. Several days later, after being informed that no change would be made, Benders advised the firm she intended to file a complaint with the IRS regarding her employment classification. Shortly thereafter, she was told to leave the firm. In discussing the retaliatory count, the Court first noted that plaintiff was obligated to prove: 1) that she was discharged; 2) in retaliation for her activities and 3) in violation of a clear public policy. That public policy prong is not satisfied if only private interests are at stake. Defendant argued that Benders status as an employee or independent contractor involved only plaintiff’s economic interests, and therefore, she couldn’t show any violation of a public policy. The Court however, disagreed. The opinion notes that the federal laws classifying personnel as employee or independent contractors concern more than one employee’s bank account. Those laws affect tax revenues collected by the federal government – and tax revenues are indeed a public concern. The trial court’s order granting summary judgment on Count III was reversed.

DAMAGES LIMITATIONS STRUCK DOWN BY ILLINOIS JUDGE - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

As previously noted in my September 20, 2007 entry, trial lawyers across Illinois were holding their breath, waiting for an important decision out of the courtroom of Judge Diane Larsen, a Cook County trial judge. Judge Larsen was presiding over a case where recent legislation that capped damages in medical malpractice cases was being challenged. Specifically, the 2005 legislation had capped “non-economic” damages, or pain and suffering, at $500,000. In other words, the law provided that regardless of the circumstances, no successful Illinois plaintiff could recover more than $500,000 for pain and suffering. I am absolutely delighted to report that on November 14, 2007, Judge Larsen struck down that law. Judge Larsen correctly noted that the limitation placed on damages by the legislation violated the Separation of Powers clause in the Illinois Constituation. In effect, Judge Larsen noted that the legislation impermissibly permitted lawmakers down in Springfield to interfere with the responsiblity of a civil jury – determining the fair and reasonable amount of damages that can be awarded. In effect, the Judge ruled that a bunch of legislators, sitting down in Springfield, had no business, nor any right, to insert themselves arbitrarily into the evaluation of damages aspects of lawsuits. After all, it is the jury who sits through the trial, sees the exhibits, hears the witnesses and listens to the arguments of the lawyers trying the case. Isn’t the jury then, in a much better position to decide the value of a case as opposed to a legislator who knows absolutely nothing about that case? The “tort deform” movement[i.e. insurance companies, various Republicans and other regugnant life forms] spearheaded this legislation using fabricated scare tactics about doctors fleeing the state because of the “insurance crisis”. That explanation, of course, is nonsense. Premiums are going up because insurance companies have made very poor investment choices. So insurance companies had a choice – be candid with their insureds and admit they made bad business decisions, or, distract their insureds with carnival-like sideshows. The insurance choice? Go with the sideshows. That explains why you see rallies downstate with doctors in their finely pressed white smocks moaning about “runaway verdicts”. The tort deformers will go to great lengths to keep their insureds in the dark. Not suprisingly, the forces of darkness have vowed to appeal Judge Larsen’s ruling. Hopefully the Supreme Court of Illinois will do the right thing and uphold her decision.

E. COLI DEADLY - EVEN IF NOT EATEN! - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Chicago Sun Times reported Monday on the tragic story of a 3 year old girl who died as a result of E. Coli poisoning – even though she had not ingested the tainted meat. The child, Brianna Kriefall, had eaten with her family at a Sizzler Restuarant in South Milwaukee, Wiconsin, sometime in 2000. Brianna didn’t eat any of the tainted meat, but her lawyers argued she became sick after eating watermelon that had been tainted by the meat. The little girl died just a week after being exposed. Brianna’s lawyers secured a $13.5 million dollar settlement from Sizzler’s meat supplier, as well as other defendants.

SUPREME COURT BANS RETALIATION UNDER SECTION 1981 - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The United States Supreme Court recently struck a blow for those employees who claim they were retaliated against after complaining of racial discrimination at their workplace. The case, CBOCS[Cracker Barrel Old Country Stores]West v. Humphries, arose out of treatment the plaintiff, Hedrick Humphries endured at an Illinios Cracker Barrel Restuarant. Humphries worked there for nearly three years as an assistant manager. He alleged that he was fired after he complained about allegedly discriminatory disciplinary action taken against him and another black employee. In addition, he had complained about allegedly racist remarks made by another manager. Humphries filed a lawsuit under 42 USC 1981, claiming both discrimination and retaliation. [Section 1981 prohibits race discrimination, but does not specifically mention retaliation]. Cracker Barrel argued that since Section 1981 doesn’t specifically outlaw retaliation, no cause of action for retaliation existed under the statute. Not suprisingly, business groups across the United States, including the U.S. Chamber of Commerce, supported Cracker Barrel. The trial judge agreed with Cracker Barrel and both the retaliation claim and discrimination claim were dismissed. Humphries elected to appeal only the dismissal of the retaliation claim. On appeal, the United States Court of Appeals for the Seventh Circuit held that Section 1981 provides a cause of action for retaliation. Cracker Barrel then appealed that decision to the Supreme Court, but to no avail. On June 3, 2008, the Supreme Court ruled that that Section 1981 does indeed provide a cause of action for retaliation following complaints about discrimination on the basis of race. As noted by Cynthia Hyndman, Humphries attorney, the decision “…allows workers and contracting parties to go and say ‘you’re discriminating against me on the basis of race, and this isn’t right, let’s fix it’ without fear of losing their job”.

TO YOUNG LAWYERS - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The American Bar Association Section of Litigation publishes a Journal every quarter impressively entitled The Journal of the Section of Litigation. The Journal can occasionally be a bit…well, dry. Then there is Sidebar, the column written by Kenneth P. Nolan, a meat and potatoes lawyer from Brooklyn. His columns are not to be missed. They are short, funny and sometimes profound. His latest column is entitled “To Young Lawyers” and I have quoted some of it below: I try not to denigrate anyone’s skills, but we’re lawyers, facilitators. Not one of us is finding a cure for cancer. Sure, we help people often in dreadful situations. But there’s no reason for an end zone dance. Win your case; put your papers in your briefcase. Shake hands, or, if you’re from Brooklyn, kiss cheeks. Thank the judge, the staff, and the clerk. Walk quietly out of the courthouse. Have an extra glass of wine or two. And the next day, pick up another file and begin again. No grandstanding. Quiet confidence is the most effective. Keep your ego in your pocket. Sure, you’re smarter and better than everyone else. Try not to show it all the time. Allow others a word on conference calls. Every leap year admit that another attorney’s thoughts have value. Please. Include your victory on the website and in the materials that sit in your reception area. But don’t let success and money change you. Be gracious. Have class. You’re not as wonderful as your firm’s propoganda attests. Ask your wife, your sister, your college roomie. They know. Great advice, and not just for young lawyers.

CROCS AND ESCALATORS A BAD MIX - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

According to any number of recent reports, Crocs, the popular rubber shoe every kid seems to be wearing these days, may present a danger when worn on escalators. The report mentioned a recent situation involving a young girl injured at an airport. The girl[who was three at the time] and her mother were making their way through an airport on their way to a Disney vacation. At some point in the airport, they had to utilize an escalator. The young girl was weaing Crocs and one of her shoes became entangled in the escalator. It took emergency personnel a full 15 mintues to free the little girl. As a result of the incident the child suffered three broken toes and had to endure surgery where pins were placed in her foot. The girl’s mother filed suit against the maker of the shoes, alleging the manufacturer knew the shoes could cause harm and didn’t warn consumers. And the manufacturer is already battling a lawsuit involving injuries to another small child when that child’s Croc became entangled in an escalator at JFK Airport. In a May 20, 2008 post on the Consumer Reports blog, Consumer Products spokesperson Julie Vallese noted Crocs are a new product on the market that “…poses a risk.” [Unfortunately technical difficulties precluded a link to the blog]. The Consumer Product Safety Commission recommends following certain steps in order to avoid injures on escalators. I have summarized some of those recommendations below: 1) Make sure any laced shoes are properly tied; 2) Stand in the center of the step, as entrapment can occur on the side; 3) Always hold the hand of any small child riding with you; 4) Do not permit children to play or sit on the step; 5) Do not bring strollers, walkers or similar contraptions onto the escalator; 6) Always face forward and hold the handrail; 7) Know the location of any shut-off mechanism.

CROSS EXAMINATION TIPS - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

I am presently reading a book entitled Your Witness , which is essentially a compilation of cross-examination pointers collected from prominent Chicago lawyers. [In the interest of full disclosure, the book was sent to me, in the hopes I would mention it on my blog]. Having said that, I have thus far greatly enjoyed most of it, in part because I happen to know many of the contributors, and acutally worked for a couple of them. I will periodically include some of the better material. James Montana, a former federal prosecutor, contributed a chapter entitled “Knowing When to Stop”. Montana was representing one of a number of defendants charged with RICO violations for using the facilities of interstate commerce[i.e. credit cards] to further prostitution. The indictment charged that the defendants, through the guise of a health club, actually ran a house of prostitution. The defense was that the health club was indeed a health club. Turns out though, that particular defense wasn’t very compelling. The prosecution called a slew of witnesses, all of whom testified to sexual activity inside the club. According to Montana, the defense knew it was in trouble. One of the governnment witnesses however, didn’t hurt the defense. This guy, we’ll call him Mr. Holmes, worked in a bookstore owned by Montana’s client. The bookstore was right next to the club and Holmes testified that he went into the health club on a pretty regular basis, over a long period of time. Nonetheless, Holmes testified he never saw any acts of prostitution taking place. Montana concluded the witness was blind, and wisely chose not to ask any questions on cross. The attorney for one of his co-defendants however, couldn’t help himself. Montana then included the following dialogue[I eliminated only the name of the place so I don’t get sued]. Q: With regard to what observations you made in relation to activities going on at the health club, you would from time to time, exit the bookstore and go into the premises at the health club, correct? A: Correct. Q: On those particular occasions, when you went into the health club, you observed nothing specific, isn’t that correct? A: I saw a naked man on a dog leash once. Does that count as something specific? COURT: That is fairly specific. Montana writes that the laughter from the Court, the prosecutors, defense attorneys and spectators went on for several minutes. Sometimes you just have to leave well enough alone.

DIVORCE LAWYERS GOING HIGH TECH - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

THE CONSEQUENCES OF HAVING LOST THE PR WAR - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Recently met with a new client who was had been injured in an automobile collision. The other driver was insured by a carrier lawyers often describe as a “substandard”. The “substandard” designation is essentially code. First, it means that the available coverage is probably the minimum acceptable under the law. Secondly it means that the carrier will never, under any circumstances engage in any meaningful pre-suit settlement discussions. And finally it means that the carrier will hire a law firm that delights in doing everything possible to make the entire litigation experience miserable for all concerned. I was in the process of explaining all of this to the client when he interrupted, and told me that many years ago he had filed suit against a similar carrier. The case had gone to trial and he lost. When I explained that if he faced the same ritual if he went forward with another lawsuit, he hesitated, and then informed me that he would rather, and I quote, “…enjoy a public prostate exam”. He decided not to go forward. Based upon my experience, I can’t argue with his decision. His situation reflects a sad fact of life for trial attorneys. The insurance industry and their minions have decisively prevailed in the battle of public opinion. They have managed to convince consumers[i.e. jurors]that automobile cases that don’t feature devastating, obvious injuries are nothing more than “whiplash” cases and, as a result, shouldn’t be taken very seriously. As a result, lots of people, with painful, permanent injuries caused by the carelessness of another driver are not compensated appropriately, if they are compensated at all. And that isn’t likely to change.

BE WARY OF THE VOLUNTARY - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Illinois Supreme Court recently came down with a decision that should make make Illinois trial attorneys think twice about taking voluntary dismissals of their cases. The Hudson v. City of Chicago case involved allegations that the City failed to properly respond to a life-threatening situation. In November of 1998, George Hudson Jr., just three years old, was having trouble breathing. His mother called 911 and advised the operator about George’s breathing difficulties. Nonetheless, the City responded with a fire engine that didn’t have the proper advanced life support equipment. The proper equipment didn’t arrive for another 15 minutes. Unfortunately, the child died. In March of 1999, George Hudson Sr. filed suit on behalf of his son against the City of Chicago, the former City Fire Commissioner and several fire department personnel. Count I of the complaint alleged the City was negligent in responding to the call. Count II alleged the City’s response amounted to wilful negligence. The City moved to dismiss Count I of the Complaint, arguing that it had immunity to negligence claims under the Emergency Medical Services Act, 210 ILCS 50/3.150. In October of 1999, the trial court granted that motion. On July 25, 2002, plaintiffs elected to voluntarily dismiss Count II of the complaint, pursuant to 5/2-1009 of the Illinois Code of Civil Procedure. Under most circumstances[but not always!!!], a party that voluntarily dismisses all or part of a claim may refile within one year. On July 23, 2003, plaintiffs refiled a single count complaint against the City of Chicago, again alleging wilful and wanton negligence. The City again moved to dismiss, arguing that the refiled action was barred by the doctrine of res judicata. Res judicata is a legal concept that essentially says you can’t have two bites of the apple – if a court has ruled on a specific question for a specific party, that party can’t refile that action. In order for res judicata to apply, one needs to show: 1) a final judgment on the merits; 2) an identity of cause of action exists[the subsequent claim is the same as the first]; and 3) the parties are identical in both actions. The Circuit Court granted defendant’s motion. Plaintiff appealed and the Appellate Court affirmed the lower court decision. The plaintiff then took an appeal to the Illinois Supreme Court. Plaintiff’s argument was seemingly sound – he could’t be barred by res judicata because there had never been an adjudication on the merits as to Count II – plaintiff had voluntarily dismissed it. The Supreme Court however, disagreed. Citing Rein v. David A. Noyes & Co. (Ill. 1996), 172, Ill.2ds 325, 216 Ill.Dec. 642, 665 N.E.2d 1199, the Court determined that res judicat did indeed apply. The Supreme Court ruled that if the elements necessary to res judicata are present, res judicata will bar not only every matter that was actually determined in the first case, but also every matter that MIGHT HAVE BEEN RAISED. In determining if a matter could have been raised in the first action, the Court again looked to the Rein decision. The Supreme Court adopted Rein’s holding that if a cause of action arises out of the same set of operative facts as the earlier case, it then could have been litigated in the earlier case, and, as a result, res judicata would apply. In effect, pursuant to Rein, a plaintiff who splits his claim by taking a voluntary dismissal, and then refiling part of an action after a final judgment has been entered on another part of the case subjects himself to a res judicata defense. The Court then ruled that since the wilful and wanton count did arise out of the same set of operative facts as the negligence claim, the plaintiff could have litigated the wilful and wanton claim in the first case. The court ruled that res judicata did indeed bar the second claim, even though there was no adjudication on the merits.

ILLINOIS STANDARD FOR DIRECTED VERDICT IN BENCH TRIAL - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Recently completed a case where my client was involved in a rear end collision with a large truck on a local highway. The case was tried to a judge and at the conclusion of my case the defense, as they always do, argued for a directed verdict. What I did not know at the time[but do now]is that the standard for a directed verdict motion in a bench trial is somewhat different than the standard utilized in a jury trial. In a jury trial, the court views the evidence in the light most favorable to the plaintiff, pursuant to Pedrick v. Peoria & Eastern R.R. Co. (Ill.1967), 37 Ill.2d 494, 229 N.E.2d 504 . In a bench trial setting however, the standard as explained in 735 ILCS 5/2-1110, is a bit different. Section 5/2-1110 provides 2-1110. Motion in non-jury case to find for defendant at close of evidence. In all cases tried without a jury, defendant may, at the close of plaintiff’s case, move for a finding or judgment in his or her favor. In ruling on the motion the court shall weigh the evidence, considering the credibility of the witnesses and the weight and quality of the evidence. If the ruling on the motion is favorable to the defendant, a judgment dismissing the action shall be entered. If the ruling on the motion is adverse to the defendant, the defendant may proceed to adduce evidence in support of his or her defense, in which event the motion is waived. 735 ILCS 5/2-1110 Essentially, as explained in Kokinis v. Kotrich (Ill.1980) 81 Ill.2d 151, 40 Ill.Dec. 812, 407 N.E.2d 43, in a bench trial setting, the court follows a two step process. First, the Court must determine if the plaintiff has established his prima facie case. If not, the motion for directed finding should be granted. If the Court finds the plaintiff has established his prima facie case, the court must then weigh all the evidence, including evidence which favors the defendant. After weighing all the evidence, the court then applies the standard of proof required for the underlying cause to determine if sufficient proof remains to sustain the prima facie case. If the court decides the defendant’s evidence has negated any evidence necessary for plaintiff to prevail, the motion should be granted. If the defense has not negated any portion of the plaintiff’s case the motion should be denied. Thankfully, the court denied the motion and ultimately a significant six figure verdict was entered for my client. The case is presently on appeal.

DUTY TO PROVIDE ACCESS TO PROPERTY - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Settled a case the other day where my client was injured after falling on what appeared to be ice and snow near the entrance to a restuarant. If the injury had solely been caused by the presence of ice and snow, the client may have been out of luck. The fact that the owner had admitted allowed water and ice to accumulate near the only entrance door allowed me to pursue another theory of recovery. In Illinois, a property owner has a general duty to provide a reasonable means of entry to and from their business. At the same time, a property owner has no duty to remove natural accumulations of snow and ice fom his property. The presence of ice and snow however, doesn’t completely immunize a property owner. The owner still has a duty to give adequate warning of a known and dangerous condition. In my case the owner admitted that he was aware that due to the slope of the roof, moisture would descend onto the sidewalk area near the front door[the only door the public was allowed to use]. Nonetheless, he had taken no steps to warn customers of moisture near the door. As a result I could argue he was in violation of his duty to provide safe entry to his building. The defense lawyer recognized that fact and the case resolved shortly before we were to start picking a jury. That being said, premises cases are becoming increasingly difficult to litigate in Cook County and the surrounding counties. As noted above if a person is injured due to a natural accumulation of snow/ice, he is out of luck. Even if you can prove the accumulation was not natural, the jury instructions are not plaintiff-friendly. And juries seem increasingly skeptical when it comes to these types of cases. Consequently, I advise my clients early on that at some point, if a reasonable settlement offer is conveyed, I will be telling them to take it .

ILLINOIS HAS A FIVE DAY NOTICE FOR INJURY CASES - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Illinois personal injury lawyers have their own version of the Five Day Notice. Pursuant to 815 ILCS 640/1, the Personal Injury Representation Agreement Act, any plaintiff who retains counsel to represent him/her in a personal injury case, WITHIN 5 DAYS OF THE INCIDENT, may, within 10 days after the occurrence, avoid the contract by notifying the attorney, in writing of the decision to terminate the contract, via certified or regular mail. In addition, the attorney who signs a client up within 5 days of the event leading to the injury must provide to that client a copy of the contract; an address to which the notice avoiding the contract may be sent; a copy of the Act and a written acknowledgement of receipt from the plaintiff. In addition, the 10 day period does not begin to run until the lawyer provides the documents noted. According to the legislative history, the Act is designed to shield recently injured parties who hastily sign legal contracts without due consideration of all the relevent facts. I have been practicing for over 2 decades and was completely unaware of this Act. So you may indeed learn something new every day.

ANOTHER ONE BITES THE DUST - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Pleased to report settled a long-running dental malpractice case today. Pardon the pun, but getting case settled was like pulling teeth. In any event, it is over, onto the next one…

DON'T SEE THAT EVERYDAY... - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

This doesn’t happen in Cook County very often. I had a hearing in a Courtroom with a judge who is universally well-regarded. This particular judge is a seasoned, thoughtful, conscientious man who understands the stress that lawyers occasionally have to endure. The case in question is a mass tort sort of thing. Let’s leave it at that. In other words, lots of lawyers involved. The case was called and no less than 20 lawyers assemble before the bench. The Judge then announces to all that he wants to apologize to a lawyer. He goes on to explain that during a hearing the previous week he had cut the lawyer off and not allowed him to fully explain his position. The judge concludes by saying his conduct was improper, and that he wanted to acknowledge his error and apologize directly to the lawyer. A moment of complete silence – another rarity in a Cook County courtroom. I’m guessing none of the lawyers in the courtroom has experienced anything remotely similiar. I know I haven’t in 23 years of practice. The attorney in question, understandably, was a bit taken aback. To his eternal credit, he simply responded that the apology was totally unnecessary. And then we got to the hearing. A remarkably gracious act from a terrific judge. It would be really nice to see more people like him sitting on the bench.

IS THE RIGHT TO AMEND UNDER 5/2-616 ABSOLUTE? - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Is the right to timely amend a complaint absolute? The provisions of 735 ILCS 5/2-616 of the Illinois Code of Civil Procedure seem to suggest that it is, by noting in subsection [a] that “…at any time before final judgment amendments may be allowed on just and reasonable terms….” Additionally, subsection [c] notes that “ A pleading may be amended at any time, before or after judgement to conform the pleadings to the proofs”. Until fairly recently defense lawyers very rarely challenged my efforts to timely amend complaints. That era of detente however, seems to have ended. Recently, defense lawyers have been objecting to my attempts to timely amend complaints, even when I am not adding new causes of action. The objections typically cite “suprise” or “prejudice”, even if the desired amendments are simply adding facts to the complaint that have been discussed extensively in depositions. Defense objections probably are not motivated by actual suprise. Instead they are likely trying to preemptively get a ruling that certain facts can’t be discussed at trial. I expect rulings on several motions to amend in the very near future. I will find out then if I have to tweak my understanding of 5/2-616.

OPENING OFFICE IN HINSDALE, ILLINOIS - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Pleased to report that I have opened a suburban office in beautiful downtown Hinsdale, Illinois at 38 Blaine Street, just a block from the Hinsdale Metra Train Station. Office is actually located in the beautiful rehabbed Victorian pictured below. The house is located in a commercial zone. I have the first floor all to myself. The space comes with a free parking spot right next to the rear entrance. Yes, you read that correctly – free. And free client parking behind the building and in front. That will certainly be good news to clients. Over the years I heard lots of clients inquire if we could meet somewhere besides downtown so they could avoid a) driving downtown and b) paying $27.00 to park their car for two hours. Phones should be working by Wednesday. Have furniture on order, but won’t have it until the later part of March at the earliest. I have been scrambling a bit between the downtown space and Hinsdale, but things seem to be settling down. I will continue to maintain my Chicago office as well, at 100 West Monroe, Suite 1900. Next office location will ideally be located in Dublin, Ireland. Very near a pub.

SEXUAL ASSAULT CHARGES FINALLY CATCH UP TO CHICAGO DOCTOR - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The May 28,2010 Chicago Tribune had a disturbing story about how authorities failed to take action years ago when charges of sexual assualt were raised against a Chicago area gynecologist. The article, written by Megan Twohey, describes how in 2002, Dr. Bruce Sylvester Smith, allegedly sexually assaulted a patient during a pelvic exam. Immediately after leaving Smith’s office, the patient contacted her sister who contacted a rape hotline. The victim then had a rape exam at the University of Chicago Hospital and filed a complaint with the Chicago Police Department. The Cook County State’s Attorney[at the time headed by Dick Devine] declined to press charges. No official explanation was provided for that decision at the time. What makes the decision not to move foward particularly curious was that the authorities were apparently on notice about Dr. Smith. Another woman, Tameka Stokes, had gone to the police in 2000, claiming that she had been raped by Smith. Again, the State’s Attorney did not pursue charges. Additionally at least on other woman had made similar charges against Smith but the exact date of those charges was unclear. In late April, 2010, the Chicago Tribune ran an article describing the allegations made by Stokes and the decision not to press charges. The State’s Attorney office then took another look at the 2002 attack and decided to charge Dr. Smith with sexual assault. If convicted he could face 4 to 15 years in prison. The painfully obvious question – if authorities had followed up in 2000, could the 2002 attack have been prevented?

NEW LEGISLATION AIMS TO REFORM ILLINOIS NURSING HOMES - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Chicago Daily Law Bulletin recently ran an article by Allision Petty about Illinois Senate Bill 326, which calls for significant reforms to be instituted in Illinois Nursing Homes. The legislation, no doubt prodded by a string of articles in the Chicago Tribune which described widespread physical and sexual abuse at Illinois nursing homes, is expected to be signed very soon by Governor Quinn. Some of the more important provisions of the bill include: – increasing the number of hours of nursing care provided each day to patients from 2.5 hours to 3.8 hours; – requiring hospitals to initiate criminal background checks on mobile patients between 18 and 70 who are being transferred to nursing homes for the first time; – requiring written consents from patients or their representatives before psychotropic drugs can be used in treatment. Elder Advocate groups, the Governor’s Nursing Home Task Force and Illinois Attorney General Lisa Madigan all contributed to the new legislation.

HELPFUL CASE WHEN FIGHTING INSURERS ON FIRE CASES - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Battling it out against one of the national insurance companies for failure to pay on a fire loss. In doing some research today, came across an excellent Illinois Appellate decision. The case, Norman v. American National Fire Insurance is a great read for those handling fire loss cases The language I found particularly useful is at 198 Ill.App.3d 291. There, the 5th District Appellate Court, noted that “…Once arson was established as a possibility, defendant seemed to look only for clues that supported this theory. We believe that an insurer owns an insured more. An insurer should investigate every theory before labeling a fire as arson. Only after all other theories have been ruled out should an insurance company deny an insured’s claim.” Great language. Hopefully it will help me get a Section 155 Count on file in my case, where the investigator honed in on my client as the source of the fire and never investigated an abundance of other evidence that clearly showed a person or persons unknown may have gained access to the property and burned it down. We’ll see.

EVERY NOW AND THEN.... - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

In the very near future I will be filing a lawsuit on behalf of an elderly client who lives in the City. The complaint will allege that one day, my client was sitting on his front porch, alone, enjoying a summer evening, listening to the ballgame. Then for no reason, my client’s neighbor, a much younger man, suddenly rushed over, grabbed my client and beat him. Broke his nose, pushed him down the stairs, really did a number on him. 25 years ago things might have been different. My client is a tough old bird who immigrated to Chicago decades ago, worked hard all his life and put a couple kids through school. But now he is nearly 80 years old, with a bum hip. So the fight was pretty one-sided. My client simply covered up and tried to minimize the damage from the punches and being struck with his own cane. Now it is very unlikely there will be any insurance coverage for the defendant because his acts were intentional. And it is equally unlikely the defendant has any assets the he could tap into to pay any judgment. So why file suit? Simple. I hate bullies. Always have, always will. And if I can make this scumbag’s life miserable with this lawsuit, for even a day, that will be fine.

$20 Million Dollar Settlement in Jaycee Dugard Case - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw on Twitter that the California legislature had approved a $20 million dollar settlement to the family of Jaycee Dugard[pictured above] the woman kidnapped as a child and held captive for 18 years by paroled sex offender Phillip Garrido. While being held, Dugard lived in a backyard shack on Garrido’s property. Additionally Garriodo fathered two children with Dugard. Dugard[now 30 years old], her daughters and her mother filed a claim against California Corrections officials alleging they failed to do their jobs properly, and as a result Jaycee was kidnapped, held captive and suffered psychological, phyical and emotional damages. Dugard resurfaced after Garrido brought her and the children to a meeting with his parole officer. $20 million isn’t near enough for what this poor woman went through.

Supreme Court allows $3 Million Dollar Retaliatory Award Stand - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

According to a recent Chicago Daily Law Bulletin article, the United States Supreme Court has elected not to intervene in Chicago-area case retaliatory discharge case where the plaintiff secured a jury verdict of $2.8 million dollars in punitive damages. The plaintiff in the case, Jerri Blount, had alleged that Joseph Stroud, the owner of Jovon Broadcasting, retaliated against her when she supported a co-worker in a federal discrimination lawsuit against Jovon. Blount alleged that Stroud instructed her not to testify in the other case. Blount further alleged that after she refused to follow Stroud’s directive, she was fired. In November of 2005, a Cook County jury awarded Blount more than $3 million dollars in damages. The case has been bouncing around on appeal for several years. In June, 2009 the Illinois First District Appellate Court upheld the jury verdict. Last January, the Illinois Supreme Court refused to hear the defense appeal that the punitive damages were excessive. Congrats to Ms. Blount’s attorneys, Martin A. Dolan and Robin B. Potter.

AUTHORITIES IGNORE KEY EVIDENCE IN RILEY FOX MURDER CASE - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Just hours after finding the body of 3 year old Riley Fox[pictured above] near a Will County, Illinois creek in 2004, investigators located two shoes less than 100 yards from the body. The shoes had been discarded by Scott Eby[pictured below] who recently confessed to the murder. Eby discarded the shoes because they had become muddy when he dragged the poor child to the creek to drown her after sexually assaulting her. And, he had written his name in the shoes. But despite finding the shoes in virtually the same spot as the body, and having the owner’s name, authorities never followed up. And there were other clues authorities missed. Like the fact that Eby lived only about a mile from Riley at the time of her murder. And that Eby’s mom had called police the morning the Riley had been reported missing. She was concerned about her son who was vomiting and agitated. Incredibly, authorities never put all those clues together. Instead, police focused exclusively on Kevin Fox, the girl’s father. He was ultimately charged with her murder in October 2004 and spent 8 months in prison. He was released after DNA evidence excluded him as a suspect. Kevin Fox and his wife later sued Will County and ultimately received an $8.1 million dollar verdict. That case is still on appeal.

ILLINOIS DRUG OR ALCOHOL IMPAIRED MINOR RESPONSIBILITY ACT - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Was retained by a young man to investigate potential cause of action after he was badly beaten up at a get-together in his neighborhood. In doing some research, ran across the Illinois Drug or Alcohol Impaired Minor Responsiblity Act of 2004. The Act provides that any person[18 or older] who willfully supplies acohol or illegal drugs to a person under 18, and causes the impairment of that individual shall be liable for death or injuries to persons or property caused by the impaired individual. 740 ILCS 58/5. Very few cases have interprested this particular statute, so there isn’t much law on it just yet At the very least, the Act appears to create an entirely new cause of action on behalf of people who are injured by impaired minors. Unfortunately for me, the Act doesn’t provide much assistance to the young man who came to see me, as he was well over 18.

LONG RUNNING HOCKEY INJURY CASE SETTLES - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Finally!! My longest running case has concluded. I filed this case in 2005 after my client suffered a serious eye injury while working as a physical trainer for a local hockey club. He was injured when he was struck in the eye by a hockey puck. He had just entered the bench area from the locker room in order to fill some water bottles on the bench. As he stepped into the bench area he was struck in the eye by a hockey puck that had come off the stick of one of the players. The player testified that he was simply practicing his passing and the puck got away from him. There was some evidence however, that the players were “sniping” – or shooting the pucks at the water bottles in the bench area. The case involved depositions in Illinois, Wisconsin, Colorado and Connecticut. And we had to get an order of Summary Judgment reversed, after the trial court had ruled the negligence allegations were barred by the Illinois Contact Sports Doctrine. [Actually, I just got out of the way – Joanna Fryer was the appellate ace who got that done]. But we hung in there. We recently mediated the case, and although the mediation didn’t get it resolved, the parties were pretty close and wrapped it up shortly thereafter. Plaintiff is a nice young man. Glad I was given the opportunity to help.

IS A BLOG WORTH THE TROUBLE?? YOU BET. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

I recently did an analysis of my web presence – specifically my weblog[which you are currently reading] and my website[which is dated and boring and badly needs updating]. I decided to revamp my website. The company overseeing that project advised that they could port over my blog to the website and save me some money in the process. My contract with the company that currently hosts my blog calls for me to provide 60 days notice of termination, which I did. They were very nice and professional[and have been throughout]. During our brief discussion, they mentioned that my blog drew 1200 views in March, 2011. 1200!!! According to my math, that is nearly 40 views a day. And I haven’t been exactly killing myself adding new content. Coincidentally, got a very nice note last week from a Chicago-area lawyer who indicated he regularly reads my blog. I am also happy to report that I am involved in settlement discussions in the first case where I was retained after the client stumbled over my blog. And last week got a call out of the blue from a potential client[who was very tech savvy] who was was looking for assistance on a fraud case and called me after reading some blog entries. So is there value to regular substantive blogging? Unequivocally yes. People are reading blogs – hell, it appears lots of people are at least taking a look at this blog. Has my blog resulted in boatloads of new clients? No, not yet anyway. But that wasn’t my expectation – at least not in the short-term. I am taking a long-term view on this. And, in the long-term, I am confident that a very healthy percentage of my clients will be generated via this blog.

"SPECIAL" DAMAGES NOT REQUIRED IN ILLINOIS MALICIOUS PROSECUTION CASE BASED UPON ARREST - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Hopefully in the process of settling a malicious prosecution case against a large Chicago area security company and a national consumer goods store. The defendants had my client arrested and prosecuted for various misdemeanor criminal charges after a minor incident in a store. My client was found Not Guilty on all charges. I filed a malicious prosecution case against the defendants after the criminal case was over. Early on the defendants tried to get the case dismissed, alleging that the complaint was defective as “special damages” had not been pled. The “special damages” rule is a recognition that Illinois Courts are reluctant to penalize parties for attempting to assert their rights in Court. In other words, assume a defendant had prevailed in a civil lawsuit. If he turns around and sues the entity that sued him for malicious prosecution, he can’t simply allege that he had to hire a lawyer and defend himself in the earlier case. If he does, his lawsuit is going to get tossed. The plaintiff in a malicious prosecution case based upon an underlying CIVIL case has to show an arrest, seizure of property or similar difficulties in order to go forward with his case. When the malicious prosecution case is based upon an underlying CRIMINAL case however, there is no “special damages” requirement. Although the cases speaking to the issue don’t explicitly say so, there seems to be an implict recognition that damages will be presumed where a person’s liberty is impaired, even briefly, by an arrest. Same goes where someone has to live with the threat of criminal prosecution, and/or incarceration hanging over their head. Thankfully the trial court was well versed in the law and the Motions were denied.

WHISTLEBLOWER MAKES A FORTUNE - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The internet is abuzz with the story of Bradley Birkenfeld. Mr. Birkenfeld is a former employee of UBS Bank. Birkenfeld recently got out of jail after confessing that while an employee of UBS, he helped American clients avoid paying taxes to the IRS. More specifically, he pled guilty to assising one client conceal $200 million in assets and avoid over $7 million in taxes. At the same time however, he was providing critical information to the Justice Department regarding some unusual practices at UBS, that eventually led UBS to admit it helped clients avoid taxes by hiding assets offshore. In February of 2009, UBS agreed to pay $780 million in fines relating to their offshore tax havens. Birkenfeld’s lawyer claims that as a result of Birkenfeld’s assistance, the IRS has been able to recover $5 billion dollars in taxes from over 30,000 US citizens. The US Government awarded Birkenfeld…wait for it…a whistleblower award of $104 MILLION DOLLARS – the largest individual whistleblower award in history.

Former Illinois College Football Player suing Olivet Nazarene University for Brain Injury - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Meredith Rodriquez had an interesting story in the Chicago Tribune on a lawsuit recently filed by a former college football player. The allegations rise disturbing questions about how players are coached and the equipment they use.

Nathaniel Irvin filed suit in the Circuit Court of Cook County claiming that he suffered brain damage as a result of poor coaching and improper helmet use while playing college football from 1986 to 1989.

Irvin named a number of defendants in the lawsuit, including his alma mater, Olivet Nazarene , the NCAA, and several athletic equipment makers including Russell Athletic.

The lawsuit alleges that on multiple occasions, after hits, Irvin showed classic signs of concussion including vomiting, lack of physical control, dizziness, confusion, blackouts, amnesia and chronic headaches. The suit goes onto allege that despite those symptoms, on each occasion, Irvin was improperly assessed and instructed to continue playing.

Additionally, the suit claims that Irvin wore helmets improperly and was never given appropriate instruction on how to wear a football helmet. Irvin also alleges he was taught improper tackling techniques, where he initiated contact with his helmet or face mask.

In March of 2014, Irvin was diagnosed with multiple traumatic brain injuries, including post-traumatic epilepsy, major depressive disorder and early Alzheimer’s. He didn’t associate his condition with football until recently when the issue exploded at the professional and collegiate level.

Mr. Irvin is represented by a Texas law firm.

Mississippi Judge Indicted for Assaulting Mentally Disabled Man - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Jonathan Turley posted an article on this a few weeks back.

Justice Court Judge Bill Weisenberger of Madison County Mississippi[the smiling chap above] was recently indicted on an assault charge. According to Turley’s site, the charges arose out of an incident on May 8, 2014 at the Canton Flea Market.

According to witnesses, Eric Rivers, a 20 year old African American male, was asking vendors at the flea market for tips if he helped them unload their wares. One witness claimed she saw Weisenberger slap Rivers twice, resulting in Rivers landing on the ground. Rivers then got up and ran away. Other witnesses indicated Weisenberger shouted racially offensive words after Rivers as he ran away. It appears that Weisenberger may have been working in a security capacity at the Flea Market.

Vickie McNeill, a friend of the Rivers family noted that Rivers is mentally challenged.

Weisenberger, a Republican, was elected to the bench in 2011. He is a former law enforcement officer.

It is hardly shocking that buffoons like Weisenberger exist. Instead the most shocking revelation from this story is how little is required to sit on the bench in Mississippi. The only requirement to be elected a Justice Court judge is a high school diploma and six hours of training. When the bar is set that low, virtually anyone can crawl over it.

Weisenberger is also defendant in a lawsuit against him and the county for arrests of African American women on the charge of “roaming livestock”? Anyone shocked? Probably not. The state of Mississippi should wake up and immediately revise the educational and professional requirements necessary before one can be elected to the Justice Court. If Mississippi doesn’t wake up it is only a matter of time before another “justice” behaves just as stupidly as Weisenberger is alleged to have behaved. Tick tock.

Second chance for woman injured at Weiner Circle - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Illinois Appellate Court recently resurrected a lawsuit against one of Chicago’s most famous late night stops – The Weiner Circle[pictured above]. Back in 2011, Leah Libolt was visiting Chicago. She and friend went out to dinner and then hit a few bars on the north side. And about at about 2 am, they found themselves at Weiner Circle.

Little background here…. Weiner Circle, by day, is a little hot dog stand on North Clark. But Weiner Circle stays open until 5 am. So all the millenials spilling out of the Lincoln Park bars head over for some grub to soak up the booze.

Years ago, according to interviews anyway, one of the owners grew tired of trying to communicate with an overserved customer so he began to verbally abuse him. A genre was born. Now when the bars close, people head over to Weiner Circle to “good naturedly” berate the people working there. And, the people working there give as good as they get. Lots of insults tossed back and forth, along with lots of profanity. Not for the faint of heart. It gets a little crazy, as the attached fan link demonstrates[the fan link is NOT associated with Weiner Circle].

Back to Ms. Libolt. When she arrived at Weiner Circle it was crowded, loud and rowdy. She waited in line to order and noticed an unidentified guy[“mystery man”] walking in and out of the restaurant. Libolt testified that the verbal sparring was mostly good-natured, but interactions between Weiner staff and mystery man were becoming aggressive. Mystery Man was repeatedly told to leave and one of the workers waved a large spoon at him. Mystery man left but then came back. And he was again loudly berated by other patrons and again told to leave. Shortly thereafter mystery man bumped into Libolt and knocked her down, causing serious injuries to her left arm. It is not entirely clear how mystery man ended upon bumping into Libolt. One of her friends admitted to pushing him when mystery man reached over him at the counter. [Mystery man was never identified].

Libolt sued Weiner Circle, claiming that it allowed the quarrelsome mystery man to remain in the restaurant, failed to control and/or remove him; encouraged employees to provoke patrons and was otherwise negligent. Weiner Circle filed a motion to have the suit tossed and the trial judge did just that. Libolt appealed.

The First District Appellate Court however, thought that the lawsuit should move forward. In a thoughful opinion, the court held that as Weiner Circle intentionally creates and knowingly maintains a violatile environment[with lots of drunk people yelling and being yelled at] the risk of injury is unreasonably high – and Weiner Circle has a duty to protect its patrons. To be clear, the opinion didn’t say all restaurants have that duty – only those that create and permit conditions like that in Weiner Circle late on weekend nights.

The opinion didn’t identify who represented Libolt, but kudos to them for sticking with the case.

Infringement Lawyers may be on the hook for millions in attorney fees. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw an article yesterday by Patricia Manson in the Chicago Daily Law Bulletin that might keep patent infringement lawyers up at night.

In 2007 Inventor Daniel Henderson made some statements to the US Patent and Trademark Office[PTO] concerning certain wireless technology. Based upon those statements Raymond Niro, Paul K. Vickrey, David J. Mahalek and Paul C. Gibbbons[the lawyers] filed patent infringement lawsuits on behalf of a company called Intellect Wireless. They sued HTC Corp. and HTC America Inc.

In subsequent litigation however, Judge William T. Hart determined that some of Henderson’s statements to the PTO in 2007 were false. And, importantly, he concluded that the lawyers had “critical knowledge” that Henderson had made false statements to the PTO – but continued to push the lawsuits. Hart went on to note that attorney fee awards under the U.S. Patent act are only appropriate in exceptional cases. And, Hart concluded, these facts, as he saw them, were exceptional.

Hart ordered the lawyers for both parties to sit down and determine the amount of attorney fees that should be awarded to the HTC entities. Now those would be interesting meetings to attend.

And another odd twist – initially, Intellect initially opposed that fees award. But later conceded that fees were appropriate. Wow. A party conceding fees against it are appropriate. You don’t see that everyday.

The lawyers assert they were never aware of Henderson’s false statements and made no misrepresentations in the litigation. The matter is up again before Hart on January 22, 2015. My bet is that there is no way on earth that three groups of lawyers[the lawyers named above; the lawyers for Intellect and the lawyers for the HTC entities] have reached a consensus on fees – especially when the fees may be in the millions and at least one set of lawyer disputes that fees are even appropriate. This will be interesting – and will likely involve an appeal.

Bad Legal News for Lance Armstrong Team - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

So the ownership of the U.S. Postal Team purchased insurance from an outfit called SCA Promotions, a Texas firm that protects the interests of team owners and sponsors. According to an article in the Wall Street Journal[written by Vanessa O’Connell] SCA covers “hole in one” insurance and athlete incentive clauses in most of the major sports.

But, SCA refused to give Armstrong $5 million in bonus monies, suspecting that he was cheating. Mr. Armstrong of course was appalled and sued SCA to collect his money. The case was arbitrated and Armstrong testified under oath that he did not dope. According to the transcript from his 2006 testimony, Lance testified that “I race the bike straight up and fair” – sounding very much like a hero in some old Western. SCA was concerned it would lose, so they paid $7.5 million to Armstrong. The settlement agreement said “No party may seek to challenge, appeal, or attempt to set aside” the settlement terms. Wonder who insisted on that particular language being inserted?????

Flash forward to 2012. Armstrong, was stripped of nearly all of his titles, including the Tour wins. And in 2013 he publicly acknowledged he had used performance-enhancing drugs when he was winning all those races.

SCA then sued Armstrong for fraud, demanding he repay them $12 million dollars – which is the money SCA paid him from 2002 to 2004. Armstrong refused, saying Texas law would not countenance re-opening the earlier settlement.

An arbitration panel agreed to hear the case. Today an final arbitration award was entered, ordering Armstrong and Tailwind Sports to pay SCA $10 million dollars. Armstrong’s lawyers called the award “unprecedented”. Lance of course, is very concerned about fairness and all that sort of thing.

Armstrong is also looking down the barrel of a False Claims Act lawsuit filed by former teammate Floyd Landis alleging Armstrong defrauded the U.S. Postal Service as a team sponsor.

“Oh what a tangled web we weave when first we practice to deceive….”[apologies to Walter Scott].

Just in Time for March Madness - nice digs for a bad team. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw this on the Huffington Post last week and had to write about it. Nebraska University Mens Basketball Coach Tim Miles is plain fed up. A couple of weeks ago, his Cornhuskers got blown out at home by Iowa. And the loss was not an unusual event. In fact, losing had become pretty commonplace for the Nebraska lads. Before the Iowa game they had lost 7 of their last 8 games So Miles put a lock on the Locker Room – effectively banishing his players from their own locker room.

At a press conference, Miles announced that “There will be chains on the door locking it from the outside until further notice.” Miles also told reporters he wished his players could work side jobs until the could refund the cost of tickets to disappointed fans.

Big shout-out to Coach Miles for refusing to indulge the every whim of big time athletes like most major college basketball coaches do[see Jim Boeheim as an example]. Not sure if the ban is still in effect – as of February 26 it was, but that was a couple weeks ago. And it’s not like Miles has to worry about getting his players ready for the NCAA tournament. They currently sit at 13-17 overall and are 12th in the Big Ten. So they can make plans for Spring Break.

The most jarring thing about this story though isn’t that some coach got fed up. It is the lavish facilities these kids enjoy. They practice in the recently completed $19 million Hendricks Training Complex[pictured above]. The players have access 24 hours a day, 7 days a week. Click on this link to go to the Huff Post article and see an embedded video where two players walk you through the facility. A Team Lounge, with a huge wall of televisions where the players can relax, complete with custom-made extra long couches for the lads to stretch out. There is a stocked kitchen. The Locker Room has custom lockers with embedded ipads and ipods. The soak room has hot and cold soak tubes, along with big screens on the wall. And, a nice little feature – a towel warmer. Yeah, a towel warmer – so the poor lads don’t have to deal with the outrage of a cold towel. The showers have rain faucet overhead showers as well as side faucets. And of course the showers are wired for ipods. The film area has oversize leather chairs, with the obligatory cupholder. Again, the lads should not have to place their beverages on the floor.

My favorite feature is the lavatory areas. EACH of the toilets have what appear to be 18 inch retractable televisions screens – so the kids can enjoy some television during private time. I for one, am appalled the kids had to wait so long for this feature.

All that and they are 13-17. Wow. Shouldn’t they be at least .500?

UNC Whistleblower Gets Paid. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Just as March Madness starts cranking up, a story that the University of North Carolina-Chapel Hill[“UNC”] would much prefer gets buried…

It was reported the other day on Jonathan Turley’s site that former UNC Academic Advisor Mary Willingham[pictured above]had resolved her Whistleblower case against the University – to the tune of $335,000. Willingham, pictured above, had publicly criticized the literacy levels of UNC athletes. She further claimed that after doing so, UNC superiors retaliated by demoting her and giving other responsibilities that would have required extensive training. Willingham also alleged that university officials had slandered her by calling her a “liar”.

In October, 2014, former federal prosecutor Kenneth Wainstein released a lengthy report which summarized his investigation into scholastic shenanigans involving UNC athletes. He concluded that academic counselors regularly steered “student athletes” to “irregular” classes in the UNC Chapel Hill African and Afro-American Studies Department. Seems that some of the classes were a little odd – as there were no teachers and the classes never actually met. Yep, that is irregular. Wainstein also concluded that similar nonsense had been going on for 18 years[ending in 2011] and involved 169 athletes, whose grades in these make-believe courses kept them eligible to run around on football fields, and basketball courts proudly wearing the pale blue of UNC.

One has to assume that Wainstein’s report would have been a focal point of Willingham’s case- which likely accelerated UNC’s decision to pay Ms. Willingham.

Groundbreaking Verdict against Gun Shop in Milwaukee - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

A groundbreaking verdict was returned in a Wisconsin courtroom yesterday and gun shop owners had better take note. In the summer of 2009, Julius Burton paid Jacob Collins $40 to purchase a .40 caliber handgun from Badger Guns[“Badger” – pictured above] a gun shop located in suburban Milwaukee. Video of the purchase shows Burton pointing out the gun he wanted to Collins. Additionally, when Collins, the alleged purchaser, was filling out certain paperwork, he checked “No” to a question that inquired if he was the actual buyer. Donald Flora, the clerk working at Badger Guns, told him to change his response to “Yes”. The gun was purchased and promptly turned over to Burton. A month later, Milwaukee Police Officers Bryan Noberg and Graham Kunisch spotted Burton riding his bicycle on the sidewalk. The officers, while still in their squad car, instructed Burton to stop doing so, as riding a bicycle on a sidewalk is prohibited by a Milwaukee ordinance. Burton ignored them and continued riding on the sidewalk. The officers then exited their car and pursued Burton. He aggressively resisted, then pulled out the handgun and started shooting. Both officers were shot in the face. Officer Nordberg lost multiple teeth as a bullet crashed through his mouth and lodged in his shoulder. Officers Kunisch was shot multiple times. He lost an eye, and part of the frontal lobe of his brain. His wounds forced him to retire. The officers sued Badger, alleging that the store personnel were aware, or should have been aware that the gun was clearly being purchased illegally for someone who could not legally purchase the weapon. Badger’s attorneys argued that the clerk who oversaw the sale didn’t intentionally commit any crime. The jury found for the officers and awarded $1.5 million to Norberg and $3.6 milion to Kunisch. Additionally, the jury awarded punitive damages of $730,000. The verdict is believed to be the first of its kind for shooting victims. A 2005 law provides substantial immunities to gun dealers for these kinds of injuries. At least one presidential candidate – Hilary Clinton – has vowed to repeal that law if elected. Defense attorneys have vowed to appeal the verdict, and will likely be well funded by gun interests Milwaukee atuthorities claim that between 2006 and 2009 more than 1,800 guns purchased from Badger were used in crimes. Burton is currently serving an 80 year sentence. The link below shows video of portions of the purchase and confrontation prior to the shooting.

http://fox6now.com/2015/10/13/breaking-verdict-reached-in-badger-guns-civil-trial-jury-due-in-court-around-5-p-m/#ooid=QxZG82eDqyYkW1fyt5–MWc38BdeQu9P

Auto-Brewery Syndrome - a new defense for DUI??? - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw this story online a couple weeks ago…DUI lawyers take note…

Hamburg, New York police got some calls in late December about a Toyota Corolla weaving all over the local roads. Officer Daniel Gallardo was on duty and soon spotted the car and pulled it over. The driver of the car[who was never identified] smelled like booze, was slurring her speech and had glassy eyes. Although she was able to recite the alphabet, she had trouble with other aspects of some field sobriety tests. A breathalyzer test was administered and came back at .33 – more than 4 times the legal limit. So the driver was hit with DUI charges.

Now, here is where it gets interesting. The driver admitted to having 3 drinks earlier in the day while visiting family. Her lawyer, Joseph Marusak, thought it her BAC was high, even assuming the three drinks. So he did some research and came across Dr. Barbara Cordell in Texas. Dr. Cordell has published studies on “Auto-Brewery Syndrome” – a very rare disorder where the body turns ordinary food and drink into alcohol. Cordell directed Masurak to Anup Kanodia M.D. an Ohio doctor who has treated the condition. Masurak got his client into see Dr. Kanodia who ran some tests. He observed the driver over extended periods when she did NOT have any alcohol. When Kanodia obtained BAC readings – they were all sky high – even with no booze. Kanodia then froze the samples and retested the hours later – and the BAC was still high. Dr. Kanodia thinks that individuals with Auto-Brewery Syndrome are able to function with elevated BAC because their bodies eventually get used to high BAC. Marusak got the DUI charges dismissed[although the state vowed to appeal]. Kanodia noted that he is working with some other attorneys throughout the United States and Canada who think their clients have Auto Brewery Syndrome. Kanodia also noted that only 50-100 people have been diagnosed with the condition.

Great work by Attorney Masurak.

MEDICARE WON'T PAY FOR MISTAKES - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Starting in 2008, if your surgeon neglects to remove that sponge from your abdomen, Medicare won’t pay for the subsequent procedure to retrieve it. Under some new rules just issued, Medicare will no longer pay for the costs associated with “preventable” conditions acquired in the hospital. Some examples include hospital-acquired infections, bed sores and transfusions of the wrong blood type. The hospitals themselves will have to pay the associated costs. Thankfully, the hospitals are prohibited from passing the costs onto the patients. Some health care specialists believe the change in the rules will give hospitals a stonger incentive to prevent mistakes from happening in the first place. In particular, hospitals will now have a real incentive to focus on preventing patients from developing infections. The CDC estimates that 2 million people get hospital infections each year – resulting in 100,000 deaths and an additional $27 million dollars in medical expense.

Appellate Court: Workers Comp Commission NOT OBLIGATED to accept AMA impairment rating - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Fifth Appellate District of Illinois recently handed down a good decision for injured workers in Continental Tire of the Americas v. The Illinois Workers Compensation Commission. The case is actually pretty straightforward. On January 31, 2012, Curtis Oltmann was working as a labor trainer for Continental Tire in southern Illinois. He tripped and fell while taking out some trash and landed on his left arm and hand. X-rays showed a fracture of the left wrist. Curtis had very limited medical treatment – which included a couple of visits with Dr. David Brown, an orthopedist. Dr. Brown saw Curtis in late February, 2012 and determined that he was at maximum improvement and could return to work with no restrictions. In March, 2012, Dr. Brown drafted a report which included a disability rating based upon AMA guidelines. He indicated there was no permanent impairment and Curtis was doing great. The case went to trial and the employer submitted Dr. Brown’s report. The arbitrator found that Curtis had suffered 5% loss of use of his left hand. The employer appealed to the Illinois Workers’ Compensation Commission[“the Commission”]. The Commission affirmed the award. The employer then appealed to the Circuit Court which also agreed with the Commission. Finally, the employer appealed to the Appellate Court. The employer’s beef? Since only one report[Dr. Brown’s] was submitted and that report denied any permanent impairment, the employer felt no award should have been made to the employee.

The Appellate Court opinion is worth a read. The Court noted that the injured worker is not required to submit a written report from a doctor. Furthermore, if a party does submit a report from a doctor, that report should comply the rules in 820 ILCS 305/8.1b(a). Additionally, the Court noted that if a proper report is submitted, under 820 ILCS 305/8.1b(b), the Commission is required to consider the report. Additionally, there is no requirement that the Commission has to automatically adopt the findings of impairment in the report. Instead, the Commission is to consider all the factors in section 8.1b(b).

The Appellate Court noted that the Commission outlined its findings on all the appropriate factors they were to consider under Section 8.1b(b). Especially important was the fact that Curtis complained of some continuing pain when he used his wrist and Dr Brown acknowledged that continuing pain was not uncommon.

The Commission decision was affirmed.

Injured at work? Might cost you your job. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

From the Illinois Trial Lawyers Association Facebook Page…

Researchers from the T. Chan School of Public Health at Harvard recently scoured data from a study done by the Work, Family and Health Network involving direct care workers at 30 nursing homes spread throughout New England. Some of the findings are not exactly encouraging news for folks hurt at work.

First, the study noted that federal and state statutes which are supposed to provide financial and monetary support to injured workers, and to protect them from termination, are not always followed by employers.

The study also showed that workers injured on the job were 30% more likely to be out of that job within six months, as compared to comparable workers who did not suffer injuries at work.

Additionally, the study found that people who were injured multiple times were more likely to leave their jobs than uninjured colleagues – which stands to reason. Folks don’t like to work at jobs where they get hurt a lot and oftentimes employers fail to implement necessary safety precautions to prevent continuing injuries.

Peter Smith, a researcher at the Institute for Work and Health at the University of Toronto noted that “Work is not supposed to lead to injury. Measures must be put in place to ensure that employers do not fire or discipline workers because they have a work-related injury.” Well said.

AutoZone gets absolutely walloped[$186 Million] for pregnancy discrimination!! - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

This story out of California didn’t get much play in the press, for whatever reason.

Ms. Rosario Juarez was hired by AutoZone in 2000 as a Customer Service Representative at a store just south of San Diego, California. In April of 2001 she was promoted to Parts Sale Manager. In October, 2004, she was promoted to Store Manager. In September of 2005, Juarez became pregnant with the first of two children she would eventually have.

Shortly after finding out about her pregnancy, the District Manager told her she could not handle the demands of her new position and suggested she accept her former position in Parts. After he child was born, Juarez was demoted and her pay was cut.

Juarez waited a year[as apparently required by AutoZone internal rules]before she tried to regain her Store Manager position. The District Manager refused to promote her. Juarez was terminated in 2008. Juarez then filed suit claimed she was discriminated against, and ultimately fired because of her pregnancy.

At trial, a former District Manager testified that an AutoZone Vice President had berated him for having so many women in management positions. The Vice President was quoted as saying: “What are we running here, a boutique? Get rid of those women.” Ouch. That kind of testimony tends to hurt.

The case went to verdict in November and the jury concluded that Juarez had indeed been discriminated against. The verdict? $872,720 in compensatory damages. But wait – there’s more. A Whole lot more. The jury also awarded $185 MILLION dollars in punitive damages. Sean Simpson, one of Juarez’ attorneys noted that “This is the third or fourth time they’ve been hit with punitive damages for doing the same thing. Let’s hope they get the message.”

An AutoZone spokesman indicated an appeal was planned. Wonder if their appeal team has any women on it?

Some New laws of Note in Illinois.... - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw an article on the Huffington Post the other day detailing some new laws our hardworking legislators in Springfield managed to get on the books.

Here is a link to the Huff Post article. Wanted to point out some of the more important ones…

3D Mammographies now covered by insurance –

Senate Bill 54 – adds 3D mammographies to scans covered by insurance. Tomosynthesis – also known as 3D mamograms – takes a multidimensional view of the breast during screening. And importantly, 3D mammograms have a higher success rate of detecting cancerous cells. SB 54 amends the insurance code by adding 3D mammograms to the list of low dose mammogramss that are covered by insurance. Effective 7-1-16.

Discounts for Veterans –

House Bill 366 – a proposal sponsored by Sate Senator Steve Stadelman to create a discount program for veterans living in Illinos became law on 8-17-15. Now the 722,000 Illinois veterans can receive discounts at participating businesses.

Adoption becomes just a bit easier –

House Bill 3079 – makes the adoption process a little less stressful. Under the old law, a state employee had to approve the adoption of a foreign child – even though the federal government had already done so. HB 3079 does away with the State approval requirement and streamlines other parts of the process. The new law is already on the books.

DSW employee fired for calling police has cause of action under Illinois Whistleblower Statute. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

I saw an interesting employment law opinion come out of the Northern District of Illinois last week. Melissa Coffey was an assistant Store Manager for the Skokie DSW Shoe Store . DSW has an interesting policy when it comes to possible shoplifiting – called the Shoplifting and No-Apprehension Policy[“the Policy”]. According to the policy under no circumstances is law enforcement, mall security or any other third party to be called in the event of a possible shoplifting incident. Seems like a rather odd policy for a high volume retail business, but that is their business.

In any event, while at work on August 29, 2009, Melissa was approached by a co-worker. The co-worker told Melissa that three or four female “shoppers” that the co-worker thought had previously stolen shoes were back in the store. Melissa eyeballed the three or four “shoppers” and noticed that they weren’t really looking at shoes but instead were keeping a close eye on employees. Additionally, Melissa saw a running car parked directly outside. Based upon her co-worker’s remarks and her personal observation, Melissa grabbed a store walkie-talkie[huh??] and announced “I think we’re going to call the police”. Melissa herself did not call. Another co-worker then called the police. Of course by the time police arrived the shoppers had disappeared. No one was arrested. That same night Melissa informed the District Manager that she had called the police. A couple of days later, Melissa was fired.

Melissa sued DSW alleging violations of the Illlinois Whistleblower Act [“IWA”] ,740 ILCS 174/15. The IWA prohibits employers from retaliating against employees for disclosing information to the police where the employee has reasonable grounds to believe that the information involves a violation of law.

DSW, for its part, tried to get the case tossed on a couple of fronts. First, DSW asserted, that the IWA only protects the person who actually called the police. The Trial Court[Judge Rebecca Pallmeyer]saw through that argument right through that. The law is quite clear that whether the plaintiff reported directly to the Police, or reported through another person doesn’t matter. Additionally, DSW argued it couldn’t be liable under the IWA because the alleged violations involved actions of third parties[the suspected shoplifters] and not any DSW personnel. Again Judge Pallmeyer did her homework and checked the legislative history behind the IWA. She correctedly concluded that the language of the IWA does not limit protection only to persons who blow the whistle on their employer.

Finally, DSW argued that since no one was arrested, no crime was commited and Melissa was simply wrong to assume shoplifting. Judge Pallmeyer’s opinion however, noted that Melissa wasn’t required to prove that she a crime was committed. She only had to prove that she had reasonable grounds for suspicion. And given her co-worker’s remarks, the behavior of the shoppers and the running car, Melissa reasonably believed the law had been violated. Judgment entered for plaintiff on the IWA.

All that being said, the most burning question was never addressed – why does DSW still use walkie-talkies??

Chicago cabbies come up short in attempt to collect wages under Wage Payment Act. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

An interesting decision was recently handed down by the Northern District of Illinois pertaining to wage payments – or the lack thereof. The case, Enger v. Chicago Carriage, arose out a dispute between some former and current Chicago taxi drivers[“drivers”] and the cab services for whom they worked and the owners of those services[“cab defendants”].

In order to drive for one of the cab defendants, the drivers are required to pay fees to the cab defendants. The fees are paid either weekly[$125] or weekly[$500-800]. The drivers are NOT paid. Their only source of income is what they manage to keep in tips and fares after paying the related expenses, including fuel, upkeep and sometimes insurance. Consequently, if a driver has a bad day, he can make less than the minimum wage during his shift. And, on a really bad day, drivers can finish in the hole – having made less than their expenses. Lastly, most of the drivers involved worked 12 hour days, 6 days a week – and are NOT paid overtime.

Historically, drivers in Chicago are considered employees. But over the last 10 years, lots of cab companies have moved to classify drivers as independent contractors – even though the cab defendants still have significant control of the activities of drivers.

So the drivers banded together and sued, alleging the cab defendants had violated the Illinois Wage Payment and Collections Act[“the Act”]. The Act provides a cause of action for wrongfully withholding compensation pursuant to a contract or agreement. All plaintiffs suing under the Act must allege they were working under a “contract” or “agreement”. And, Illinois courts have properly interpreted “agreement” very broadly. The parties don’t have to be very formal – and past conduct can show an agreement.

The drivers got over the “agreement” hurdle. But they still fell short. The Act doesn’t grant any independent right of wages to plaintiffs – instead, it is only an enforcement mechanism for payment of wages set forth in an agreement or contract. Because the agreement as alleged in the complaint did NOT allege the cab defendants were to make payments to the drivers, the Court booted the lawsuit.

So if you represent former employees trying to collect unpaid wages, be sure to allege – and be able to prove – that the agreement called for payments to be made to the employee by the defendant.

Getting back to the cabbies – all is not lost. The Court gave them permission to amend their complaint and try again.

Facebook Archives off limits in Wrongful Death Case....for now. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

In 2013, Catherine Cong Ye was struck by a tractor trailer leased by Cliff Viessman, Inc. and driven by Kevin Goettl. She was 24 years old. A wrongful death case naming Goettl and Viessman was filed in Cook County, Illinois. The complaint alleges that Ye was standing on the sidewalk on Randolph Street near Halsted Street in Chicago when Goettl exited the Kennedy Expressway. The complaint further alleges that the truck went up on the sidewalk as Goettl attempted a right turn and struck Ye. The defendants removed the case to federal court. The case was assigned to Judge John Zee who referred discovery matters to U.S. Magistrate Judge Gilbert.

During discovery, the defendants requested a “complete archive” of the Facebook pages of both Ye and her family. The family, understandably declined to to provide the information. The defendants filed a motion with Judge Gilbert seeking production of the Facebook material. Gillbert, in his ruling, noted that a party may be compelled to produce the information if the party seeking it “makes a threshold relevance showing” – i.e. shows that the information is relevant to a contested issue in the case. And, Gilbert noted that the archives might contain information concerning Ye’s relationship with her family and the grief and suffering they suffered due to her death – all of which would be relevant. But, Gilbert noted, the requests by the defendants were not limited to communications between Ye and her family. Similarly, the requests had no limitation as to the topics discussed. Finally, there was no time limitation in the requests.

Gilbert decided that the requests were not designed to uncover only relevant information and denied the motion, without prejudice – leaving the possibility that he may require the plaintiffs comply with a more narrow request. The defendants have indicated they intend to file a more limited request for the archives. Plaintiff’s counsel, Mike Maher, could not be reached for comment.

Failure to sign divorce agreement costs sugar broker millions.... - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

There are bad days, and then very, very bad days. Take the day New York sugar commodities broker Daniel Rosenblum had last week. The picture above is Daniel and his former wife Sheila in happier times. Daniel thought he had wrapped up his divorce from Sheila. He was operating under the notion that he and Sheila had a written agreement[“the agreement”] whereby he would pay her $5 million dollars for the next 12 years. Not. So. Fast. Sheila filed documents to have that deal rescinded due to a variety of issues – not the least of which being that neither party had signed the agreement.

Judge Michael Katz ruled last week that because the parties didn’t sign the agreement it is unenforceable.

And now the REALLY bad news, at least for Daniel. Because the judge tossed the agreement, Daniel had to live with a 2013 agreement that he apparently did sign. That agreement calls for him to immediately fork over $11 million AND an additional $50 million over the next 4 years. So instead of $60 million over 12 years, Daniel is looking at $61 million over just four years. So $5 million dollar payments over the course of of 12 years ballooned into $15 million dollar payments over just 4 years. Ouch.

For her part, Sheila is hardly struggling. She got the $30 million dollar Park Avenue apartment and Daniel claims that due to her success owning and training horses she has a net worth of $120 million.

Perhaps cooler heads will prevail. But this involves a divorce. So probably not.

Defendant gets new trial...because his lawyer was sleeping. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Jonahan Turley continues to find really interesting – if somewhat depressing – stories about the legal system.

On Monday, Turley wrote about a recent decision out of the United States Court of Appeals in the Fourth Circuit. Nicolas Ragin, pictured below, had been arrested and tried for conspiracy and racketeering charges in 2006. His lawyer at the time Nikita Mackey, pictured above, put on an interesting defense during the trial. He slept through substantial portions of it. To be clear – the attorney, Mr. Mackey – slept through portions of the trial. Mr. Cagin was convicted and served 10 years in prison.

Ragin appealed the conviction. The appeal included testimony from other lawyers involved in the trial. One lawyer, Peter Wolf, described how the judge at one point leaned into his microphone and loudly barked Mackey’s name. As Wolf tells it:”Mackey then jumped up and sort of looked around and was licking his lips and moving his mouth and sort of look confused and looked all over the room.” Of course he did. Who enjoys being rudely woken whilst enjoying a nap at Counsel’s Table?

The Fourth Circuit ruled that Ragin was deprived of his Sixth Amendment right to counsel when counsel sleeps during a substantial portion of the defendant’s trial.” Pretty hard to argue with that logic.

Wonder if Ragin hs seen Cape Fear??

Professional Sports Teams[and venues] should pay when the booze they peddle causes injuries. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The lawsuit popped up in the local news last week. John Cooke was attending a Chicago Blackhawks game at the United Center[“UC”]with his brother last year. During the game, another fan, apparently two rows above Cooke grew increasingly loud, drunk, and unruly. The lawsuit alleges that ushers in the area simply ignored the drunk. And, to make matters worse there was no security in the area.

At some point, the Hawks scored. All the Hawks fans celebrate, including the drunk. Unfortunately, the drunk falls TWO ROWS and lands on Cooke, alleging causing serious injuries. So Cooke, through his lawyer, Dan O’Connor, sues the Blackhawks, the UC and At Your Service, the Security Contractor for the UC. No less than Jonathan Turley picked upon the lawsuit. Turley noted in a recent post that the lawsuit was “widely ridiculed”. Not in the articles I saw. Let’s assume, just for a moment, the allegations are correct and the drunk was causing a ruckus and fans complained. Their complaints are ignored by ushers and security. Then this same drunk falls down two rows and causes injury. Why shouldn’t Mr. Cooke sue and hopefully recover? Ushers and security have the responsibility to respond to fan complaints; identify troublemakers and get them out. They apparently failed to do that.

I go to the occasional Hawks, Bulls and Sox games. And when I do, I enjoy a few beers with my friends and cheer on the home team. What I have noticed the last several years though, is that a certain percentage of “fans” see their ticket as an excuse to get silly drunk, yell profanities and otherwise act stupid. A friend of mine[who in his youth participated in his fair share of fistfights] recently told me he flat-out refused to take his young son to the bathroom during the late innings of a Cubs Sox game because of the antagonism and level of drunkenness he observed earlier in the game. The attached article is a bit dated but suggests 1 in 12 fans leaving a professional sporting event is drunk. That figure is probably low. If professional sports teams wish to enjoy the revenue generated by non-stop drinking before, during and after games, let them pony up when the drunkenness they enable causes harm

Federal jury doesn't buy sex slave allegations - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

On Thursday evening, a federal court jury in Chicago returned a Not Guilty verdict in a civil lawsuit that featured some ugly allegations made by an ex-wife against her former husband. Kimberly O’Brien alleged that her former husband, Kevin Anderson, had forced her to walk around their homes wearing only heels and address him as “Master”. O’Brien also alleged Anderson had tied her up and sexually assaulted her. Ms. O’Brien is shown below [photo courtesy of the Chicago SunTimes].

Anderson denied all allegations. Additionally, he alleged that O’Brien was an unstable woman who had instigated the unusual sexual behavior. Finally, Anderson alleged O’Brien was just trying to get at his money. The case had garnered lots of attention both in Chicago and across the country.

The jury deliberated 4.5 hours before returning a verdict for Anderson.

Disturbing allegations raised in dental malpractice case leading to death of three year old girl. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw this terrible story out of Hawaii earlier this week. Finely Boyle, the cute little girl pictured above, was seen by her dentist, Lilly Geyer of Island Dental in November. Dr. Geyer indicated the little girl had multiple cavities and needed several root canals. Finely returned on December 3 for the suggested dental work. She was given a mixture of drugs for sedation purposes. Shortly thereafter, Finely went into cardiac arrest. There are allegations the staff at Island Dental had no idea how to revive her and had to run down the hall looking for help. Due to oxygen deprivation, Finely suffered significant brain damage. She was hospitalized for several weeks but died in early January, 2014. A lawsuit on file against Dr. Geyer and Island Dental alleges that misrepresentations were made regarding the training of the staff. Additionally, the lawsuit alleges that the mixture of drugs was excessive and inappropriate. Lastly, the lawsuit alleges that Island Dental personnel inexplicably failed to properly monitor the child after the drugs were started.

Photo courtesy of New York Daily News.

Portable Toilet Tipping - not a good idea. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw some coverage on this on the internet the other day. A Donald Adams of Pennsylvania agreed to go on a fishing trip with some relatives. The “lodge” at which they were staying lacked indoor plumbing. Instead, it offered portable toilets similar to that shown below. When Donald went outside to do his business, his companions decided to engage in the time-honored tradition of porta-potty tipping. While Donald was in the unit, his relatives blocked his exit with a truck. They then began rocking the toilet and eventually tipped it over. You can imagine where this is going. Somehow in the ruckus, Adams was knocked askew and landed on his neck. He fractured two cervical vertebrae and is now paralyzed from the shoulders down. His anticipated future medical bills are between $6 and $10 million dollars.

Adams sued the manufacturer of the portable toilet -which is known as a Poly-San . Additionally, he also sued the guy who installed the toilet – Lewis Crawford. There was evidence that that particular brand of toilet is supposed to be affixed to the ground with metal stakes that go through holes in the base of the toilet. Poly-San admitted that it did not supply consumers with the stakes[that is most certainly NOT a good fact for Poly-San]. And Crawford allegedly admitted that he installed that unit on a hill[huh?] at a 14 degree angle. Crawford claimed to have made attempts to level it, but was concerned it would tip over. And, Crawford was aware other units HAD tipped over. The news accounts had conflicting reports if Adams named his dim-witted relatives. The case settled for $5 million. I could not determine who paid what amount – but would imagine Poly-San’s insurance carrier accounted for most of that figure.

Old Lawyers and 16 inch softball. Who knew? - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Couple of weeks ago, I was asked by a colleague if I was interested in playing on his Over Fifty 16 Inch Softball team. I was flattered, certain that he had heard of my athletic prowess. Sadly no. As he explained, “You are the only guy I know who is over 50 and still healthy enough to play.” Oh.

I haven’t played 16 inch softball since college. Long time ago. And the years haven’t sharpened my skills. And I may have put on a pound or two. Nonetheless, I was pretty confident. After all, how good could a bunch of old farts be?

I got to the park late, right before the game started. Guys from both teams were loosening up on the sidelines. Average age on our squad was probably 55. Two of our players were probably pushing 60. The other team had players that voted for Eisenhower. I couldn’t wait to play. I was going to run would circles around those fossils. [The whippersnapper pictured above [photo courtesy of 16 Inch Softball Hall of Fame] would be far too young to play with us].

Turns out the fossils could play! In the first inning, our shortshop[pushing 60] made a one handed pick-up on a rocket and calmly tossed it to second for a force. I couldn’t have made that play with three hands. Two innings later, our center-fielder made a sliding catch on a sinking liner. I wouldn’t have caught that ball in 1987. Our first baseman, Mike, a powerful, barrel-chested guy, dug a number of tough throws out of the dirt. And the players on the other team were great as well. Their second baseman made a leaping grab of a line drive in the fourth, robbing one of our guys of a sure double. A couple of our guys said they heard he was only 49.

And the hitting was more impressive. I’ve never seen more relaxed approaches to hitting. I was certain one or two of my teammates had actually drifted off to sleep in the batter’s box. Then, as the pitch descended over the plate, they would uncoil at the last second and rip a line drive into the field of their choice.

My night? I was appropriately relegated to right field – generally where the worst fielder is stuck – while all the other fielders silently pray nothing gets hit in that direction. But there is an old baseball saying – the ball will find you. And it did. Three times to be exact. A pop-up and two fly balls. I managed to catch all three, but not without some drama. On the first one I had to run a bit and nearly fell down. My teammates were kind enough to turn their heads as they laughed. The other two balls were thankfully less eventful. My first two plate appearances at least looked like I had some testosterone. Both times I hit the ball sharply but at someone and got thrown out. My final plate appearance featured a weak foul ball and….an infield pop-up. Want to know who hits infield pop-ups in 16 inch softball? Eight year old girls and me.

Thankfully my ability to catch fly balls may have earned me a spot on the roster. I look forward to the remaining games. And I will never again equate age with diminishing skills. Unless I am talking about my own.

EEOC obtains $240 million dollar verdict for abused workers. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Every time you tell yourself you have seen the last of these stories…

An Iowa City, Iowa jury awarded a record $241 million dollars to a group of 32 workers who had been systematically abused for decades by a Texas employer. The employer, Hill County Farms, d/b/a Henry’s Turkey Service, is based in Goldthwaite, Texas. The work and abuse however, took place in rural Iowa. The workers lived in a bunkhouse in Muscatine County, Iowa. They worked at at Henry’s Turkey Service, a turkey processing plant in a nearby Iowa town. What makes this story particularly horrible is that each of the workers suffered some form of mental disability. The picture above shows a few of the workers who lived in the Iowa bunkhouse [Photo courtesy of the Desmoines Register].

Back in the 1970’s, Texas officials promoted Henry’s as a company that would provide training to the mentally challenged. Henry’s sent hundreds of men to live in labor camps in Iowa and other locations over the years. But the conditions under which the workers lived were often deplorable. The Iowa bunkhouse was overrun with cockroaches and mice. Windows didn’t function. The only heat came for sporadic placement of water heaters. After receiving complaints from relatives in 2009, the State of Iowas inspected the bunkhouse, found it to be a fire hazard and declared it uninhabitable.

And things didn’t get any better for the workers once they got to the plant. The EEOC presented disturbing evidence that Henry’s personnel exploited the workers because their mental disabilities precluded them from fully understanding what was happening. The abuse, which had taken place for years, was both verbal and physical. Workers were struck, kicked and sometimes handcuffed. Supervisors who were supposed to act as guardians, dismissed complaints of pain or injury.

Henry’s personnel even stole the workers’ money. They improperly deducted monies from the workers’ paychecks and Social Security benefits in order to pay for the cost of their care. Ultimately the workers received only $65 a month for grueling work under ghastly conditions. The equivalent of .41 cents an hour.

At the conclusion of the case, the jury agreed that Henry’s had subjected the men to severe abuse and discrimination between 2007 and 2009. The jury awarded each of the men $2 million in punitive damages and $5.5 million in compensatory damages. In September, 2012, the judge had ruled that Henry’s was to pay $1.3 million for disability-based wage discrimination. The total judgement ends up at $241.3 million.

Henry’s is now a defunct company and it is unlikely the full verdict will ever be paid. But the company still owns significant real estate in Texas and the government has its eyes on that land.

Congratulations to EEOC attorney Robert Canino who did great work on behalf of the workers.

CLAIM FOR PUNITIVE DAMAGES FOR WILFUL AND WANTON VIOLATIONS OF ILLINOIS NURSING HOME ACT DO NOT SURVIVE DEATH OF RESIDENT - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Recently, in Vincent v. Strathmoor , the Illinois Supreme Court was presented with a singular question of law:
– does a claim for punitive damages based upon allegations of willful and wanton violations of the Illinois Nursing Home Care Act(210 ILCS 45/1-101 et seq) survive the death of the nursing home resident, upon whose behalf the case was brought?
The case arose after Marjorie Vincent died in December of 2006 while a resident of Alden-Park Strathmoor, a nursing home in Rockford. After her death, the legal representative of her estate filed a three count complaint against Alden-Park. Count III of the Complaint, based upon the Nursing Home Act, alleged that the defendant acted with conscious or reckless disregard for Marjorie’s health and safety and that the misconduct was willful and wanton. Additionally, in Count III, plaintiff reserved the right to bring a claim for punitive damages. Defendant Alden didn’t wait for plaintiff to do so and moved to dismiss Count III. The defendant argued that punitive damages do not survive the death of the person whose injuries serve as the basis for the cause of action. The trial court agreed and struck the reservation of the right to request punitive damages in Count III. The Plaintiff appealed but the Appellate Court agreed with the trial court. The plaintiff them sought relief from the Illinois Supreme Court.
The Supreme Court however, agreed with the Appellate Court. The crux of their ruling was pretty basic. The Court ruled that generally, the right to punitive damages for personal injuries does NOT survive the death of the injured party. For a punitive damage claim to survive the death, the award of punitive damages must be expressly authorized by the statute on which the cause of action is based. As the Nursing Home Act does not contain a clause authorizing punitive damages, no such claim could be made.

"I KNOW NOTHING DEFENSE" NOT CREDIBLE IN DISCLOSURE ACT CASE. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Fourth District Appellate Court was not impressed with the defendant’s thinking in Messerly v. Boehmke. Way back in 1998, plaintiffs purchased a home from the defendant. The home was located in Gillespie, Illinois. Prior to the sale, the defendant partially filled out the required Residential Real Property Disclosure Report which is required under the Illinois Real Property Act[The Act]. The defendant denied any problems in his answers to most of the first 17 questions. He did acknowledge material defects in the basement foundation – specifically cracks and bulges.

Defendant also denied any knowledge of material defects in the walls or floors. And defendant just flat out skipped questions 17-22.

Interestingly, several years BEFORE closing, defendant had filed a claim with his insurance carrier regarding some damage to the home. The carrier arranged an inspection and determined the damage to the home was due to settling. Settling can certainly impact walls and floors.

Just days after the plaintiffs moved in, the lower level shower was leaking water out of the walls. Plaintiff’s wife called defendant who promptly told her that a specific tool was necessary to tighten a pipe. A plumber who inspected the house told plaintiffs that the problem was poor work and the only way to fix the leak was to tear the pipes out. Additionally the plumber found other issues he thought were health concerns. A subsequent inspection of the property found – get this – 21 different violations. Plaintiffs sued under the Act. The defendant filed for judgment arguing that there was no failure to disclose material defects in the home. Defendant himself – in an affidavit – denied any knowledge of defects in the house. Shockingly, the trial court granted defendant’s motion. Importantly the trial court said that the plaintiff’s decision to move forward with the closing, when faced with only a partially completed form, waived any action against defendant. Plaintiff appealed. Good call.

The Appellate Court didn’t see things like defendants had hoped. First, the Court ruled that plaintiffs decision to go ahead with the closing didn’t waive their right to sue. The Opinion also noted that any suggestion defendant was unaware of the problem was not credible. After all, defendant knew precisely what pipe to fix when the plaintiff’s called to complain about the leaks. The Appellate Court concluded that there was certainly evidence to infer defendant was aware of the problems.

Lastly defendant argued the plaintiffs had to show a causal connection between defendant’s decision to leave one or more questions blank and their resulting damages. The Appellate Court shot that down as well.

Lower court’s decision reversed the trial court judgment.

FROM THE ODD COUPLE DEPARTMENT... - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

From the Odd Couplings Department…

Marriya Wright[pictured below in swimsuit] until very recently, was a Deputy Prosecutor in the Spokane County Prosecuting Attorney’s Office. Then a picture of her, in a bikini, was discovered in the possession of Matthew Baumrucker, an inmate in the Spokane County Jail. That discovery was, not surprisingly, a little unsettling for County officials, so an investigation was launched.

The investigation revealed an alleged relationship between Wright and Baumrucker[also pictured below]. Baumrucker has an extensive criminal background, including prison stints for robbery, assault and bank robbery. He even has the word “Criminal” tattoed on his forehead[which probably doesn’t help during trials]. When officials began looking into all this, Baumrucker was facing drug and assault charges.

The investigation also revealed that between February 6, 2014 and March 5, 2014 Wright and Baumrucker exchanged 1,280 text messages.

The authorities also suspect Wright may have helped Baumrucker avoid being taken into custody on assault charges. There is some indication that when investigators located Baumrucker at an apartment, he called Wright. According to police documents, Baumrucker claimed that Wright had advised him that he did not have to let the police in if they didn’t have a proper warrant. Police later discovered surveillance videos allegedly showing Baumrucker getting into Wright’s car at a gas station. Officials feel that Wright, as a prosecutor, should have instructed Baumrucker to simply turn himself in. It appears she never did so.

Finally, officials have learned that Wright visited Baumrucker several times while he was incarcerated. Ultimately the state charges were dropped but federal prosecutors filed weapons charges against him. Baumrucker is in jail, awaiting an October trial.

Wright is no awaiting word if any charges against her will be filed. Her attorney, Chris Bugbee, says that Wright used poor judgment but was trying to put Baumrucker on the “straight and narrow.”

IS FOREST PRESERVE OF COOK COUNTY LIABLE WHEN TREE LIMB FALLS AND HITS MOTORIST ON ADJACENT ROADWAY? MAYBE - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

In Belton v. Forest Preserve of Cook County, Darryl Belton was injured when his car was struck by a decaying tree limb that fell from a tree on property maintained by the Forest Preserve District[“the District”]. Belton was driving on an adjacent roadway that was NOT on Forest Preserve property.
Belton sued the Forest Preserve District alleging it should have identified the decaying branch and removed it.
The District moved for summary judgment, arguing that under 3-102 of the Local Governmental and Governmental Employees Tort Immunity Act, it did not owe any duty to someone on an adjacent property – even if injured due to a condition on District property. The trial court agreed and entered summary judgment. Plaintiff appealed the trial court’s restrictive interpretation of Section 3-102.
And the Appellate Court agreed – the District’s interpretation of 3-102 was just wrong. The Appellate Court not so gently noted: “The District has argued its property maintenance duties to the world are limited to certain users of its property and do not encompass persons on adjacent or abutting property. However, there is considerable, well-settled authority indicating public entities are liable for injuries occuring on adjacent or abutting land.” Because the trial court had improperly restricted the breadth of 3-102, the order of Summary Judgment was reversed.
But the plaintiff isn’t out of the woods[incredibly bad pun]. The Appellate Court ruled that it was unable to determine if the District owed Belton any duty to maintain the trees along the adjacent roadway. The parties were to continue with discovery so that the trial court could consider the issue of duty.

JOE FRANCIS GAMBLES WITH JURY....AND LOSES - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw on the internet today that Joe Francis[who gave the world “Girls Gone Wild”] took a beating in a California courtroom today. Francis had allegedly made statements that Steve Wynn, the creator of some of the most luxurious resorts in Las Vegas, had threatened to kill Francis in relation to a $2 million dollar gambling debt Francis ran up at a Wynn resort. Wynn sued for slander and a jury agreed with him, returning a verdict for $20 million in compensatory damages. A second phase of the trial remains, where a jury will decide if punitive damages are appropriate. Francis has vowed to appeal. To be continued…

Bank VP claims her discrimination lawsuit caused her to be fired. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw an interesting online article from ABC News about some legal unpleasantness at Deutsche Bank. Kelly Voelker, pictured above, had been a stellar VP in Deutsche Securities for 14 years. In 2011, Voelker filed a sex discrimination lawsuit claiming that Deutsche had a “hostile and degrading” atmosphere toward women and that male co-workers allegedly made inappropriate comments about her being pregnant. Additionally, she alleged that she was denied a promotion, and eventually demoted because she was a woman.

About a year after Voelker filed the discrimination claim, she was fired. Deutsche claimed she was laid off as part of a reduction in force. Voelker claims that she was the ONLY member of a 500 person unit to be laid off. [If so, that certainly would be an odd coincidence]. Deutshe denies Voelker’s allegations and says it will vigorously defend them.

Illinois company hit with multimillion dollar "popcorn lung" verdict. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Last week a jury in a Denver federal courtroom hit an Illinois company with a $7.2 million dollar verdict in a “popcorn lung” lawsuit. The plaintiff, Wayne Watson had alleged that Glister-Mary Lee Corp. failed to warn consumers that the butter flavoring on it microwave popcorn contained diacetyl. Diacetyl has been linked to a chronic condition known as broncioliti obliterans or more commonly as”popcorn lung”. The disease causes inflammatory obstruction of the lungs, and, if not caught early on, can be fatal.

Watson alleged that he ate the butter-flavored popcorn on a daily basis for years. He was diagnosed with “popcorn lung” in 2007. Lawyers for Glister-Mary Lee Corp. had argued that Watson’s health problems were due to long-term exposure to dangerous chemicals while he worked as a carpet cleaner. Laywer Kenneth McClain, who represented the plaintiff, has similar cases pending in Iowa and New York. No word on whether Glister-Mary Lee intends to appeal.

Wait, when did they do away with the First Amendment??? - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw a VERY interesting article by Patrick M. O’Connell in the Chicago Tribune the other day about some wacky behavior in Park Ridge.

400 West Talcott, LLC [“Talcott”]is a Chicago-based real estate developer. Talcott wanted to put a four story condominium building in Park Ridge. The project had to be approved by the Park Ridge Planning and Zoning Commission. The Commission had hearings in May and September. Residents showed up at both hearings and objected to the project. The residents voiced perfectly legitimate concerns about parking and traffic. Additionally some residents questioned whether the project was simply too big for the site.

John O’Flaherty, the owner of Talcott disagreed. He felt the development would fit nicely in the neighborhood and that it complied with the relevant zoning ordinances. Ultimately, the Commission decided not to approve the project. Then, things get interesting…

Talcott sued the the Commission in the Circuit Court of Cook County for improperly denying approval for the project. AND Talcott sued approximately 20 of the residents who showed up at the hearings and voiced their displeasure with the project. When questioned about the decision to sue the residents[who did nothing more than show up at public hearing and exercise their First Amendment Rights] O’Flaherty denied any attempt to intimidate the residents.

“Oh gosh, no.” O’Flaherty was quoted as saying. “This was certainly not a tactic for any particular reason, just following the letter of the law and how this needs to be filed. First Amendment rights, everybody has them and they should be able to exercise them.” Right. Precisely what case law or statute requires that you sue residents for voicing opinions at a public hearing? I am not familiar with that one. And if any such statute actually existed, seems like it would be in direct violation of the right to freedom of speech. But I am sure Talcott and its lawyers will clear that all up when they have to respond to all those Motions to Dismiss from the residents. Those should be interesting arguments….

Judge: “Counsel, can you provide me with any authority as to why the statements of the residents are not protected free speech under the First Amendment?”

Talcott attorney: “Ummm……”

The story also quoted Andrew Koppelman at Northwestern University Law School. Koppelman didn’t mince words. He said naming the residents appeared to be “pure harassment” – because the residents have no ability to approve or deny the plan.

“On the face of it, it looks like clumsy lawyering,” Koppelman continued. “These people are not public officials…I do not understand why they have been named as parties.”

The local alderman, Marty Maloney was even more direct. “I just think it’s a terrible approach by the developer,” he said. “It’s bullying people into staying quiet in regards to what’s happening in their neighborhood, and I feel like that’s sort of unforgivable.”

Some residents have expressed concern about incurring legal costs while others have vowed to continue expressing their opinions.

Tom Maheras is one of the residents named in the lawsuit. He indicated he would bring other family members to future hearings on the project. “I would get my wife and my children to go in addition to myself,” he said. “This his how you deal with people like this – you double down.”

Talcott’s attorneys will likely voluntarily dismiss all the residents who were improperly named as parties – and they will do so quickly. If they don’t, those Motions to Dismiss will start flying and the residents will be properly looking to recover their attorney fees – from Talcott.

I can understand challenging the Commission if there was some irregularity it the process. But suing the folks who take the time to attend these hearings and voice their opinions? Wow. To quoteAlderman Maloney, unforgivable.

No reason to keep previous injuries a secret. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

There is a misconception out there that previous injuries sink your case. Not true. For example, suppose you suffer a badly injured right knee after a fall in 2006. You had surgery, therapy, and, thankfully after several months of treatment, were pretty much back to normal. Now flash forward to 2011. You are involved in an automobile accident and again, your right knee is badly injured. And the 2011 knee injury is more severe because of the earlier surgery. Does the 2006 injury somehow negate the 2011 claim? No, no and no! Illinois Pattern Jury Instructions[specifically 30.21] tell jurors that they cannot limit an injured person’s recovery simply because a pre-existing injury was aggravated, or a pre-exisiting injury made a person more susceptible to subsequent injury.

Don’t keep the previous injury a secret from your lawyer. First, it handicaps his or her ability to fully evaluate your current injury if you don’t tell him about the previous injury. And you can rest assured the insurance company lawyers will find out about that previous knee injury. They will leave no stone unturned – combing through your medical records, going through their evil little databases, trying to find anything to undermine your case. If you aren’t upfront with those facts, or worse yet, deny the earlier injury or treatment, that behavior will have a negative impact upon how the carrier/defense lawyer evaluates both you as a potential witness, and the value of your case. So don’t fear the pre-existing injury. It doesn’t ruin your case. Just be sure to tell your lawyer about it at the outset so he or she can properly integrate the previous injury into the case.

Some helpful hints for mediators. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Any lawyer that is involved in litigation of any type has, by now, been introduced to the concept of mediation. Mediation is an increasingly popular form of “alternative dispute resolution” which is legalese for “let’s avoid that whole trial thing”. Mediation involves the voluntary gathering of trial lawyers and parties in an effort to settle a case. There is no evidence offered, exhibits marked or arguments made. Instead, a mediation is essentially a protracted negotiation between motivated litigants. The mediation is typically chaired by a former judge who presides over the negotiations. Before the actual meeting, the parties submit position papers that summarize the relevant law and evidence, which the judge will review to formulate some ideas as to settlement range. Over the course of several hours, a negotiation will take place, prodded along by the mediator. With a little luck, the case may settle for a fair number. Over the last 15 years or so I have seen LOTS of mediators. Some were very good. Some not so much. The following are some suggestions I would offer to all mediators and potential mediators.

1. Read the submissions. Yeah, I know, seems pretty obvious. But I recently mediated a construction site injury case before a highly recommended mediator. Within 2 minutes it became pretty clear to me that he hadn’t read my submission. Yeah, I get it. You are really smart. You presided over lots of 7 figure cases when you were on the bench. You don’t have to read the submissions when value barely cracks six figures right? Wrong. Your firm got a big deposit from myself and opposing counsel. That Mediation Agreement indicated the deposit would cover your time preparing, which I assume means actually reading my submission. Sure, you can choose to ignore the submissions if you like. That decision however, just causes us to chew up valuable time as you learn the case on the fly. And is the refund check[for the “preparation time”] going to be mailed out soon?

2. Be nice. I once had a mediator tell my client he would “be stupid not to take the money.” Um, beg your pardon? Sure my client may not be as smart as you, your Honor. He doesn’t do mediations three times a week, like you do. And he hasn’t sat through dozens of them like the lawyers. In fact, as I think about it, my client has NEVER done this before. He needs to achieve a certain comfort level in order to make an important decision about money. Pointedly questioning his intelligence certainly isn’t going to help him get there.

3. Have a little humility. I had a medical malpractice mediation several years ago involving injuries my client suffered when his bowel was perforated during a hernia surgery. Defense counsel, an honorable guy, had submitted what he considered helpful[i.e. low] jury verdict reports to the mediator and sent copies to me. I figured I should at least offer an opposing point of view and dug up some some reports that showed substantially higher verdicts. When I entered the mediation I handed them to the mediator who tossed them on the table without even a glance. “I don’t need those,” he told me. “I know what the value of this case is.” Oh. I see. Will you give me some kinds of heads up when I am getting warm? I was under the mistaken impression this was a collaborative process.

4. Acknowledge the process is frustrating. At a recent commercial mediation, the mediator huddled with myself and my clients beforehand and told my clients a) it was going to be a long day, and b) there will be moments of frustration. That may have been the first time I had heard a mediator openly acknowledge the process can be frustrating – especially for non-lawyers. And he wasn’t whistling Dixie. That particular mediation moved along glacially for a variety of reasons. And the clients did get frustrated. But not enough to really disrupt the proceedings. Because they had been told what too expect, they were able to grit their teeth and keep talking.

5. Watch the sidebars. Clients get wary when there is lots of huddling with their lawyer outside their earshot. I understand sometimes a brief sidebar may be necessary. If that has to happen occasionally, fine. But let the client know why you needed to talk to their lawyer in private. No need to recite all the gory details – and yes, sometimes, things are better left unsaid. But work to keep the client included. Again – the client may be asked to make a decision about what may be the largest lump sum of money her or she will see in their lifetime. A client who has been repeatedly left alone in a conference room while the mediator and his lawyer whisper outside might wonder why he isn’t being included in discussions about his case. Remember – the odds of getting the case resolved go up if the client feels like he is part of the process.

6. Some analysis helps. Don’t just walk in, convey an offer and then blankly stare at us, waiting for an immediate response. If you are going to do that, you might as well cue the Jeopardy music. The negotiation process is maddening for clients. They see only the strengths of their case. Put some context on the numbers when you present them. Something along the lines of: “I recognize this number is really low. First, remember that we are early in the process. The numbers will go up. Secondly they feel the exposure is limited because: a) you conduct might be considered a breach as well, or b) those cliff-diving pictures on Facebook are NOT helpful, or c) let’s face it, drunkenly jumping on the officer’s horse was a bad idea.” Clients need to understand that there are factual and legal issues that make that number rolling around in their head unrealistic.

7. Opening statements aren’t necessary. There is no jury in sight. You hourly rate is pretty healthy. Why waste valuable time making everyone listen to a series of spectacularly drab opening statements? Everybody in the room knows the relevant facts and law. Opening statements are best left for the courtroom. Of course you can give counsel the option to make an opening statement but be sure to let them know they can stand on their submission. Most of us are only too happy to stand away.

8. Sometimes the Kracken must be unleashed. At another medical malpractice mediation, my client’s mother was well, unpleasant. Ah, hell – she was brutal. She was a half hour late, without explanation or apology. Her nonstop commentary was often borderline offensive. I dragged her into the hall a couple of times to read her the riot act but it fell on deaf ears. Moments later she would be back at it. A couple hours into it she suddenly announced the process was a waste of her valuable time and she was leaving. She got up and started walking toward the door. The mediator, who had been remarkably patient, let her have it. “Ms. Smith,” he began, “This mediation process isn’t about you. It never was. It is about your son. We are talking about large sums of money that will be paid to him over the course of his lifetime. What we are doing is very important – to your son. You have an obligation as his mother to sit down and participate in the process. Your impatience frankly doesn’t really matter to me. My primary interest is the welfare of your child. I would think you would have the same interest, but perhaps not. You can walk out that door if you wish. But if If you do, know that this case will NOT settle today and may never settle. And you will have done your son a grave injustice.” She deserved every word, and probably more. Ms. Smith sat down. And she shut up. And the case settled. Sometimes people like Ms. Smith, or the recalcitrant adjuster deserve to get their ears pinned back. If so, have at it.

9. NEVER do away with the freebies. Pens, notepads, ferrets, whatever. The parties are paying lots of money for the pleasure of your company. Taking a little souvenir home takes a little bit of the sting out of it – even if they never use it. And you would be surprised how many lawyers walk out of your offices with 12 new pens in their briefcase.

Tax whistleblowing might become a cottage industry. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Whistleblowing may become a cottage industry. In September, Bradley Birkenfeld received an award of $104 million dollars after his tip led UBS AG to pay the IRS $780 million in fines, penalties, interest and restitution. Now there are reports that another tax whistleblower got $2 million from the IRS after he tipped them off to a tax-avoidance scheme at Illinois Tool Works in the late 1990’s. The informant[who apparently chose to remain anonymous] is a Wall Street banker. And, according to reports, he had already received a $2 million award from the IRS on another tip!! Nice work if you can get it.

What took so long? Car rental companies agree not to lease cars under recall. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

File this one under “Really Hard to Believe…”

Senators Barbara Boxer of California and Charles Shumer of New York recently advised the Asssociated Press that 5 rental car companies [Enterprise; Hertz ; Avis ; Dollar Thrifty and National ] have agreed to stop leasing cars under safety recalls. Currently, there is NO federal legislation that prohibits rental car companies from renting cars that are affected by safety recalls.

An announcement was scheduled for today in Washington. Expected to attend are relatives of Raechel and Jacqueline Houck, who died in 2004 when their rental car caught fire. The vehicle they had rented was under recall for a power steering defect but had not yet been repaired. They died after being involved in a head-on collision. The agreement is expected to help get legislation passed prohibiting the rental of cars affected by safety recalls.

AAA President Robert L. Darbelnet was quoted as saying the anticipated legislation is “…a common sense solution that would keep unsafe vehicles off the road.” Actually the common sense solution is NOT to rent the cars upon notification of any safety recall. Hard to believe a federal law was necessary before car rental agencies terminated this practice.

Stay in touch and the networking takes care of itself. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Not particularly inclined to write about legal stuff over the course of the last 10 days. But while sitting transfixed, constantly checking the web and television for updates, stories started coming out, how, even in the light of horrible pain and grief, goodness prevails. Civilians, at the risk of their own safety, running toward the bomb blast to render whatever aid they could. Marathon runners, after running 26 miles, refusing to stop, but instead running to local hospitals to give blood. Medical workers refusing to leave hospitals while the injured needed care. Amazing and heartening. Here’s to Boston Strong.

Now that things have hopefully settled down, back to writing about things legal.

Recently, I was invited to two separate networking events. One of them was the equivalent of a cold call – someone who runs a local business professional group in my area invited me to the quarterly meeting at a local pub. I didn’t know the person who invited me, or anyone in the group. At the last minute, my schedule cleared and I decided to go. When I entered the private room there were 30 to 40 people there. The room was spacious with lots of tables and chairs. But no one was seated. Everyone was clustered in tight groups around two tables of appetizers. Several guests were actually clasping wads of business cards in their hands, determined to press at least one card into the palm of any person to whom they spoke. There were no name tags, no sort of welcome table no list of attendees. I didn’t know a soul, but since I had come that far, I decided to at least try to meet a person or two. I tried to strike up a conversation with one group of folks, but their conversation was ending and they all headed in different directions. I get the sense that people at these things have a need to spray the infield – make contact with as many people as possible. Whether that particular contact is meaningful doesn’t seem to matter. I then tried to strike up a conversation with a guy about my age standing nearby. We talked for a moment, but he saw a friend and excused himself. Strike two. I then struck up a conversation with another guy standing nearby. He turned out to be the manager of the pub. Nice guy. Big White Sox fan. I would have talked to him longer, but that keg he was carrying looked heavy. He seemed anxious to put it down. At that point, I decided to call it a night.

A day or two later, I got a call from a very good friend who wanted to take me as his guest to a semi-regular dinner put together by some people with whom we had attended law school. My friend goes to these things pretty regularly. I do not. Additionally, my friend was on Law Review. Meaning top 10% of our class. And lots of the attendees at these functions are Law Review as well. I was not Law Review. Numerically speaking, I was maybe top 65% of my class.

So I had some trepidation. I didn’t really spend much time with Law Review types during law school. They were in the library studying. I was in Game Room, playing Donkey Kong. I didn’t know any of them very well and was pretty confident I was in for a long, tedious event. I was wrong. It was a great event. Saw lots of people I had been friendly with in law school and caught up. To be sure, sharing 3 years of law school gave us a common bond, but there wasn’t too much talk about law school. Most of the talk was about family and children. There was even some talk about grandchildren. And there were lots of questions about what happened to Mr. Smith or Ms. Jones[which is how we were addressed by professors]. Of course there was some talk about practice areas. And more then one comment that “I didn’t know you handled litigation matters.” Cards were passed – but usually only after a specific need. The evening flew by.

The takeaways here? First, the “mashup” networking event – running around passing out cards to strangers – is overrated. I’ve been to dozens of them over the years and don’t recall ever making a meaningful contact. When I get back to the office I can’t even connect a face to a business card. And the cards get tossed. I’m not bashing any and all forms of networking. Bar association memberships, and small, focused professional groups have been and remain good ideas. But groups/events devoted solely to the concept of networking? I don’t see the point.

The second takeway – stay in touch. I don’t do it very well and need to do it better. First, old friends and classmates keep you grounded. They refuse to listen to all your bullshit. They remember when you ran through parties naked[allegedly] and couldn’t get a date to save your life. Secondly, it makes good business sense. Some of those stoners I hung out with[it was the 70’s] went on to do very, very well. They almost certainly needed a lawyer along the way, but they didn’t call me because I didn’t stay in touch. And even if your old friends/classmates don’t need you, if you make that occasional call you stay on their radar. And when someone asks them for a lawyer, they mention you.

Finally, I wasted lots of money on Donkey Kong.

Why defense lawyers want to characterize the injury as "malpractice". - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Over the last few years I have been retained several times to represent people who have been injured while they were residing in nursing homes. The Illinois Nursing Home Act includes a bill of rights which guarantees residents the right to be free from abuse and neglect by staff. The Act further provides that a failure to provide “adequate medical care” that results in physical or mental deterioration is neglect. That wording is important – because “adequate medical care” has been found by Illinois Courts to be synonymous with “reasonable care”, a term used to describe the standard of care for ordinary negligence. As a result, the standard of care for liability under the Nursing Home Act is ordinary negligence – which does NOT require an expert. In other words, the lawyer for the injured resident does not have to retain a doctor to explain how the nursing home screwed up. The jury is allowed to make that determination.

Lawyers for nursing homes however aren’t dummies. They aren’t comfortable leaving their clients’ fates in the hands or ordinary jurors. So they try to characterize the allegations against the nursing home as “healing art malpractice”. Under Illinois law , if “malpractice” is alleged, an injured person has to get a doctor’s certificate that malpractice took place before he or she can even file suit. And, importantly, in order to prevail in a malpractice case, the injured party normally has to have an expert establish what the standard of care was, and how it was violated. And experts cost money. Lots of money. And finally, statistically speaking, juries more often than not find for the medical provider in malpractice cases.

So the defense lawyers bring Motions to Dismiss, knowing that if they can successfully characterize a case as “malpractice” it becomes more difficult to prove and more expensive to prosecute. Hopefully the presiding judge understands that just because an injury took place in a nursing home doesn’t make it “malpractice”.

FBI using social media to look for securities fraud. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Globe and Mail, an online Canadian new source, had an interesting article today, explaining how the FBI is now combing social media posts while they look for insider trading schemes. The article explained how large investment firms, institutional investors and hedge funds are using Twitter and Facebook to share ideas and investment strategies. According to April Brooks, a New York FBI field agent, predicting the next wave of securities fraud is always tough, but “…technology will play a huge part, social media, Twitter. Any kind of technology that is new and doesn’t exist today, if there is any way to exploit it, these individuals will exploit it.”

So all you traders out there – be careful with you tweets.

The Shame of the Boys Scouts. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Got behind on my blogging due to some business travel last week, but back at it. First thing that caught my eye were the numerous articles about the release of the “Boy Scout Perversion Files”. The existence of the “perversion files” first came to light in 2010, when six former boy scouts filed a lawsuit in Oregon claiming a former Boy Scouts of America scoutmaster has abused them. Portions of the “perversion files” were utilized as evidence and the trial judge ruled that the files should be released to the general public under open records provisions of the Oregon Constitution. That decision was later upheld by the Oregon Supreme Court.

The files themselves[138 pages long, available here ] reveal that the Boy Scouts organization, which supposedly prepares “young people to make ethical and moral choices”, was neither ethical, nor moral, when it came to protecting kids. The files, created between 1959 and 1985, identify approximately 1,500 scoutmasters, and volunteers who were accused of child molestation. According to reports, authority figures including Boy Scout leaders; police personnel; prosecutors and church personnel shielded accused scoutmasters accused of abusing kids. The rationale was to protect the “good name” of the organization. According to the Boy Scout estimates, more than one third of the accusations were NOT reported to the police.

The Boy Scouts have issued apologies to the victims and their families.

Local baseball landmark being sued. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Stella’s Sports Complex, the Lyons, Illinois batting cage facility that is a second home to Little Leaguers from February to September, is being sued. According to online reports today, Michael Rhodes, a “semi-professional ball player”, is claiming he was injured at the facility after being struck by a baseball. The reports indicate Rhoades was taking swings in a batting cage and was suddenly hit in the head by an “”errant” baseball. The “errant” ball was allegedly hit by another batter, in a nearby cage and somehow entered the cage in which Rhoades was hitting. The complaint alleges the batting cages were negligently designed and failed to protect patrons from wayward balls hit by other batters.

Rhoades apparently suffered permanent injuries and had his left eye removed. Rhoades is represented by attorney Joseph Curcio. The owner of Stella’s could not be reached for comment.

Those waivers can be a problem.... - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Recently retained by a nice young guy who suffered a bad injury to his left shoulder while working out with a “trainer” at his health club. He had previously injured the shoulder years ago playing football and had to have a big piece of surgery. When he purchased his membership at the health club, he signed a bunch of documents, one of which was a waiver. And the waiver was pretty broad – it basically released the club from any liability relating to any use of the club’s equipment, weights or trainers. My client, to his credit, had the presence of mind to make club personnel[and later the trainer] aware of his injury. That might ultimately, become a very important fact.

Illinois courts have ruled that these waivers are enforceable. The thinking is that people, if they so desire, can contractually agree that they won’t hold a third party responsible if that person, or more likely, entity, does them harm. The cases say that those agreements will be upheld, provided that 1) the parties have equal bargaining power; 2) the the contract doesn’t violate public policy[i.e. promotes or authorizes something otherwise illegal]. If however, the injury comes about because of wilful and wanton negligence, where the party causing harm essentially knew that an injury would result, then the waiver will likely be disregarded. Similarly, if the release was obtained through fraud, or misrepresentations, it will probably be disregarded.

Getting back to my client…given his disclosure of the previous injury, should the trainer have avoided exercises that might re-injure the shoulder? We’ll see….

Blue Demons basketball back in Chicago? - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw this very interesting report by Greg Hinz in Crains. According to the article, DePaul University continues to show interest in playing basketball closer to its primary Lincoln Park Campus. And, Hinz reports, there are two very, appealing options: 1) McCormick Place, where the Blue Demons would have their own building as well as naming rights or 2) 10 years rent-free residency at the United Center. The article points out that Rahm Emanuel is on board for the McCormick Center site in the hopes a DePaul presence would continue the renaissance of the South Loop. But Jerry Reinsdorf and Rocky Wirtz are now pushing the UC deal, worried that DePaul games at McCormick may result in basketball and related dollars moving south. As Hinz points out, both sites have positives and negatives. The UC site would create a nice partnerhip with the Bulls which couldn’t hurt[especially if Derrick Rose comes back healthy]. And the 10 years free rent is nice. The Bulls have also apparently promised to prominently display the DePaul/Big East insignia. Figuring out how to schedule the Bulls, Blackhawks and Blue Demons however, could be a headache.

The primary downside to the the McCormick site would be the price tag -supposedly $75 million. But DePaul would own the building and would have naming rights. And, Hinz reports that at least one big donor has already expressed an interest.

Things hopefully will get sorted out soon. And it would be really nice if DePaul could return to the prominence they enjoyed in the 1980’s and 1990’s. When I was in law school, the Blue Demons were a national power. Teams like Georgetown[with a young Patrick Ewing] and St. John’s[with Chris Mullen and Bill Wennington]would come to Rosemont and get all the could handle. This alum really can’t take more losses to the likes of Gardner Webb .

Was employee fired because of prothetic leg? - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

On Tuesday the United States Equal Employment Opportunity Commission filed a lawsuit alleging that a Romeoville company wrongfully fired a 60 year old employee because she had a prosthetic leg. The company in question, Staffmark Investment, LLC hired Dorothy Shanks in October of 2010. She was then assigned to inspect Sony electronics at the Staffmark facility in Will County. Staffmark however, removed her from from that job just two days later, saying she would be shifted to another job where she could sit. But Staffmark never sent Shanks on any other assignments.

Shanks’ supervisors for the two days she inspected the electronic items were employed by Sony . The lawsuit suggests that Sony had some involvment in the decision to terminate Shanks. Staffmark has not commented on the lawsuit. Randy Kamen, a Vice President and Associate General Counsel at Sony has commented that the lawsuit lacks merit. Additionally, Kamen has commented that she was suprised the EEOC decided to pursue this matter, as Shanks was only employed for two days.

Ann Henry, the EEOC lawyer handling the case said that the lawsuit became necessary after settlement efforts between the parties failed.

Illinois Lawyer Blog » Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Boy Scouts and a shocking lack of due diligence. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

A victim of sexual abuse recently filed suit against the Boy Scouts of America for failing to protect him from a known child molester. The victim, who is not named, was molested from 1985 through 1987 while a member of the Boy Scouts. The perpetrator, Thomas Hacker was a Scout Master and had met the victim through Boy Scout activities.

Hacker is currently serving a 100 year prison term for molesting another Boy Scout during roughly the same period. Hacker and the Boy Scouts have been sued on two previous occasions for similar allegations. Just over two months ago the Boy Scouts were compelled to release files they had maintained for decades on suspected pedophiles in the organization.

How Hacker actually got cleared to participate in Scout activity is a mystery. He had a lengthy criminal record involving abuse of children. In 1970 he was arrested for sexual assault of young boys while teaching in Indiana. In 1971 he pled guilty to taking indecent liberties with a boy in Mount Prospect, Illinois. He then dropped off the radar for a bit, but resurfaced again in 1982 at Most Holy Redeemer Catholic School located in Evergreen Park, Illinois. That same year he quit his teaching position after officials at Most Holy Redeemer discovered he was encouraging students to stay after class and drop their pants. Shockingly, in 1988 Hacker showed up at another Catholic School in the southwest suburbs – as the leader of the affiliated Boy Scout Troop. Amazingly, he was also working as the Youth Director for the Burbank Park District at the same time.

Hacker’s continuing ability to get jobs providing access to young kids certainly raises questions about what due diligence, IF ANY, the Catholic Schools[and the Archdiocese] as well as the Boy Scouts used prior to hiring a serial pedophile.

The victim is respresented by attorney Chris Hurley.

Every 46 minutes another injury in a bouncy house. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The internet was ablaze the other day with reports about a Journal of Pediatrics study showing a dramatic increase in the number of kids being hurt in those bouncy house things, pictured above. The number of kids injured jumped dramatically from 1995 to 2008. And the number of kids hurt doubled between 2008 and 2010. In 2010, 31 children per day were seen in Emergency Rooms for injuries that occurred in a bouncy house. That works out to about an injury every 46 minutes. And the explanation for the increasing injuries is pretty simple – it seems these things are now required at every birthday party, block party or barbecue.

In a finding that suprised absolutely no one, the study noted that boys are more likely to suffer concussions or closed head injuries. Having been around those contraptions quite a bit in the last few years, I’ve noticed that boys seem to be genetically programmed to run full-speed, directly at one another. And they all lead with their heads.

The most common mechanism of injury however, is falls. Less than 10% of the injuries are due to collisions. Only 3.4% of the kids injured needed to be hospitalized and 4 out of 5 of those kids had suffered fractures. Some of the articles had suggestions on how to make a bouncy house safer. The suggestions included:

1. Adequate adult supervision. Seems obvious but take a close look the next time you see one of these things being used. At a private event “supervision”, if it exists at all, occurs when Uncle Pat looks in on the kids on his way to get another beer. Even at school functions, the supervision is poor. Parents take shifts of 15-30 minutes. There is no continuity and one parent can’t control 20 screaming kids. It would be smarter to have 2-3 parents keeping an eye on things. One parent at the entrance, monitoring the kids as they enter and leave, and parents on the sides, doing what they can to monitor the madness inside.

2. Limit use to kids 6 years or older. That’s a start. Younger kids are very unsteady inside these things and particularly vulnerable if there are older kids flying around. Limiting access to kids of the same age/size would be even helpful as well.

3. Banning flips. Good idea. Kids doing flips are putting themselves, and other participants at risk.

4. Limit the number of kids inside. Another good idea. Have a monitor at the entrance actually count out the number of kids and then the door is shut and no one gets in for say, 10 minutes. Most kids are used to that kind of routine from school and will go along. And limiting the number of kids inside at a given time makes it easier for supervising adults to keep an eye on the activity inside.

Here is one parent who will NOT be disappointed when the fascination with these things comes to an end.

Sometimes, the case has to be tried. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

When I evaluate personal injury cases, my initial assessment involves two primary questions: 1) is there a serious injury and 2) can I prove liability against the defendants. I would like to say that every injury case sitting in my file cabinets is a million dollar case. But that isn’t the case. Some of my files feature serious injuries[sadly sometimes including death] but the liability picture is very weak. And some cases have very provable liability but the injury is not one that would get the average Cook County juror particularly worked up. When a significant verdict is unlikely, my practice is to explain that to the client well ahead of trial. Most of the time, the clients tell me they understand and then instruct me that I am to accept any reasonable settlement offer. And in virtually all cases with reputable insurance carriers, an offer will eventually be made. I convey the offer to the client with my thoughts. More often than not, the client decides to settle before trial, thinking that even a modest recovery, is better than a Not Guilty.

A couple of months ago, however, things did not go as I had anticipated. I represented a nice young woman who had been injured after falling due to a large defect in a public sidewalk. Unfortunately, she delayed a bit before coming to see me, and, in the interim, the area of the occurrence had been substantially modified. We didn’t have very good evidence of the actual defect. And as discovery moved forward, the defendant[a self-insured municipality] uncovered some statements that my client had made that raised some doubt about precisely where she had fallen. I have tried enough slip and falls to know that juries don’t like them. It is virtually impossible to keep property owners off juries. There are normally at least one or two jurors looking across the courtroom at the defendant thinking “That could be me.” I advised my client of these difficulties as the case unfolded. When the trial date was set, I called her into my office. I explained that her previous statements were going to be admitted. And that the defendant would use them to suggest that she was lying about how and where the incident occurred. I told her a Not Guilty was not only possible, but probable. She sat quietly for a minute, and then asked if it was too late to settle. I explained that the municipality in question aggressively tried these types of cases and to date, no offer had been made.

“So we will have to go to trial?'” she asked.

“Looks like it,” I replied. She thanked me and left.

Two weeks before trial however, an offer was made. It wasn’t much of an offer, but it was a start. And, over the next 10 days or so, the amount on the table moved up. On the eve of trial, defense counsel called, and made her final offer. Given that we were looking at very weak liability on a slip and fall, the final number was larger than I expected. At the same time however, it was nowhere near enough to compensate my client for a surgically repaired ankle and continuing pain and discomfort. I called my client to advise of the final offer.

“I went through alot, Mr. Loftus,” she began. “That simply isn’t enough.”

And I explained to her that I agreed – that the offer wasn’t enough. I also reiterated that it was a tough case. She needed to understand no guarantees could be made and there was a very real possibility of a defense verdict.

“I understand,” she said. “Let’s try it.”

“Good deal. I will be in touch – we need to go over your testimony before trial.” I was pleased she had agreed to try the case. Her ankle was only going to get worse over time. And the offer didn’t reflect that reality.

Our case got assigned out and we agreed on a trial judge. The evidence was largely uncontested and things moved quickly. Unfortunately, my client was nervous on the stand and stumbled a bit during her direct exam. And the defendant got the conflicting statements in, as I had anticipated. I knew where things were headed. After closing arguments I told the client the jury was going to return a defense verdict. And not quite 2.5 hours later, the jury did.

Both of us were disappointed, but neither one of us were surprised. We knew it was a tough case. My client made an informed decision, with my help, to try the case to a jury of her peers. We got our evidence in. And the jury decided against us. That is how things work.

Sometimes cases need to go to a jury. You won’t win all the time. No one does. But you will know you did all that you could for the client.

ILLINOIS WHISTLEBLOWER STATUTE REQUIRES AN ACTUAL REFUSAL TO PARTICIPATE IN ILLEGAL ACTIVITY - COMPLAINTS TO THE BOSS NOT ENOUGH - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Illinois Appellate Court recently handed down an interesting decision setting forth what is expected of a plaintiff seeking to assert a claim under The Illinois Whistleblower Act[“the Act”]. In Sardiga v. The Northern Trust Company , Darren Sardiga was terminated from his Vice President position with Northern Trust on January 3, 2005 – less than a year after he had been hired. Sardiga filed suit, claiming that his termination violated the Act. Specifically, Sardiga alleged that because he had refused to participate in certain procedures at the bank, he got canned. Northern Trust filed a Motion for Summary Judgment, insisting that Sardiga never actually refused to participate in an allegedly illegal activity, which was required by the Act. The trial court granted the motion and Sardiga appealed.
The Appellate Court decision sets out the facts pretty well. Mr. Sardiga had issues with several Northern Trust protocols and client procedures. He repeatedly complained to his boss about the procedures. Sardiga never went beyond his supervisor when he made the complaints. In late 2004, Sardiga threatened to bring certain complaints regarding how Northern Trust sold securities to what was then known as the National Association of Securities Dealers [now known as Financial Industry Regulatory Authority or “FINRA”]]but apparently never actually did so.
The Appellate Court then noted that under the Act, an employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of a State or federal law, rule or regulation In order to sustain a cause of action under this portion of the Whistleblower Act, plaintiff must demonstrate: 1) he refused to participate in an activity that would lead to a violation of a law and 2) the employer then retaliated against the employee because of that refusal. The parties differed about what “refusing to participate” actually meant. Sardiga argued that his continuous complaints to his supervisor were sufficient, while Northern Trust insisted an actual refusal to participate in a questionable activity was required. The Appellate Court agreed with the bank and held “refusal to participate” means exactly that – plaintiff must present proof he actually refused to participate in the activity. Complaints, even regular, on-going complaints will not be sufficient. The trial court’s decision was affirmed.

Peepholes in Sears' bathrooms?? - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

An article on Courthouse News Service site yesterday described a recent California lawsuit that contained some allegations about very, very creepy activities at a North Hollywood Sears Store. A number of plaintiffs are alleging that a Sears maintenance man installed dozens of spy cameras and peepholes in fitting rooms and bathrooms and uploaded the captured photos to the internet. And this practice apparently went on for several years.

The maintenance man, Alejandro Gamiz, was hired by Sears in 2005. According to the complaint he began creating peep holes in 2009. The complaint also alleges some photos were uploaded to some weird peepeing tom website. Importantly, the complaint alleges that Gamiz had an extensive history of similar activity, and had been caught and “treated” for his issues before being hired by Sears. If accurate, and the details regarding prior activity were available to Sears through an ordinary background check, that history is going to represent a problem for Sears.

The complaint also alleges some behavior by Gamiz that should have stirred some curiosity on the part of Sears, such as a) performing frequent maintenance in the women’s fitting area and bathroom when none had been requested; b) building passageways behind the women’s restrooms; c) spending HOURS in air ducts and crawl spaces; d) maintaining multiple video cameras in his work area, even though he didn’t need them for his job; and e) entering the women’s fitting area on a daily basis, without tools – all of which was captured on Sears own security cameras. But, it seems that no one at Sears found any of this the least bit curious. That lack of curiosity will also likely be a problem for Sears.

The plaintiffs are alleging that Gamiz’ various acts were made possible by his employment at Sears. That allegation is important, and if borne out by the evidence, will keep Sears in the case as a defendant. And having Sears[and its deep pockets] in the case means that the plaintiffs won’t have to worry about funding any settlement or judgment. Lots of questions to be answered before this one gets resolved, but if most of the allegations in the complaint are accurate, this one never sees a courtroom.

An idea, whose time has arrived - gluttony pants. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Disclaimer: the following post has nothing, I mean absolutely nothing, to do with anything legal. Which will probably make this quite a bit more interesting.

The most recent issue of Entrepreneur had an interesting story by Jennifer Wang on a San Franciso clothing line going by the name of Betabrand. The company’s founder, Chris Lindbland is apparently attempting to create the world’s first social clothing company. He gets his ideas from news cycles and blogger communities. One idea, the “Executive Pinstripe Hoodie”[for budding Zuckerbergs] recently got lots of attention. I am at least 2.5 decades beyond his target audience, but had to comment on his “Gluttony Pants”. They have an expandable waistband, with three settings, Piglet, Sow and Boar. Genius. I have included a picture of the waistband above.

Hey, the Holidays are just around the corner. Who doesn’t need a little extra room now and again?

Carrier has to prove arson in a civil case. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Back to work after a lonnnnnnng Holiday break…..

Going to trial soon against a large national carrier for failing to pay on a fire claim. The facts are pretty straightforward – my client[the insured] owned a rental property on the south side. He purchased insurance for the building. Not long thereafter, the building burned to the ground. Physical evidence at the scene [multiple empty gas cans] certainly suggests the fire was intentionally set. And the fire experts hired by the carrier are going to opine the fire was intentionally set. And as far as I can tell, that is all the carrier intends to prove.

But, the defendant has to prove something else. Under Illinois law, when arson is raised as a defense, the defendant has to prove 1) the fire was intentionally set AND 2) the the insured set the fire, or had others set it for him. There isn’t any evidence pointing to my client as the source of the fire. There is no evidence he was even in the neighborhood on the day of the blaze. And there is no evidence he was under any sort of financial distress where he needed the insurance money. Additionally, there is no evidence he got other people to burn the building for him. The carrier’s argument, as best I can tell goes something like this….”This fire was intentionally set, and we think the plaintiff did it. We don’t have much evidence to back that up, but evidence is overrated.”

To be continued…

Archdiocese of Los Angeles fails in bid to keep sex abuse records confidential. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

On Monday, Los Angeles Superior Court Judge Emilie Elias overturned a 2011 order and authorized the release of the Archdiocese of Los Angeles records that identify pedophile priests. The order releases a treasure trove of documents relating to the abuse of children by Archdiocese priests – abuse that has resulted in the payment of over $600 million to victims in 2007.

The documents include memos between church officials; complaints from parents; medical records and even communications with the Vatican regarding the abusive priests. In light of the volume of documents – nearly 30,000 pages – it was not clear exactly when the records would become available. Additionally, Judge Elias wanted names of people who were not involved in the scandal to be redacted, and attorneys for victims and the Archdiocese are in discussions about how the redactions can be accomplished. Importantly, both attorneys for the Church and abuse victims agreed that the records be released to the public as soon as possible.

At the time of the original settlement in 2007, the parties had stipulated that the records could become public. But a group of priests later went back to court and blocked the full release of the records, claiming that public disclosures would violate their privacy. Several years later, in 2011, another judge authorized disclosure, but only with heavy redactions.

The Christina Eilman lawsuit comes to an end. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

I first wrote about this case back in January of 2010. The story initially generated quite a bit of buzz, but then it dropped off the radar. In 2006 Christina Eilman was a twenty one year old, mentally-ill, white woman from California. She flew to Illinois and was arrested for creating a disturbance at Midway Airport. She was held overnite at a South Side Police Station, then released into a high crime area, where she was kidnapped, sexually assaulted and then likely thrown or pushed from the seventh floor of a Chicago Housing Authority[CHA] building. Eilman suffered devastating brain injuries as a result her fall and now requires around the clock care. The picture above shows her shortly after the incident. Her parents sued the City of Chicago claiming that the Police Department should never have released Eilman into a high crime area.

The facts revealed pretty clearly that the Chicago Police Department simply screwed up. Eilman’s parents, frantically trying to manage the situation from California, called the station where Christina was being held 9 separate times, trying to warn the police that Christina was bipolar and likely in midst of an episode. A number of officers indicated they were aware that Eilman was mentally ill. Despite that knowledge, Eilman was ultimately escorted to the back door of the station and then allowed to simply walk off into a very dangerous neighborhood. Eilman continued to act erratically as she walked through the neighborhood and eventually was seen entering the CHA building. She was then seen entering a deserted unit on the 7th floor with a group of people. At least one bystander tried to persuade her to leave but she refused. Not long thereafter, Marvin Powell, a convicted felon and reputed gang member, arrived and ordered eveyone to leave. Eilman attempted to leave but Powell refused to allow her to do so. A short time later Eilman was heard screaming. She then plunged to the ground. Powell was arrested and charged with sexual assault and kidnapping.

On Tuesday the City of Chicago agreed to pay $22.5 million to Ms. Eilman. The article I read didn’t mention who Eilman’s lawyers were, but they should be commended.

Fisher Price Rock N Play Sleepers recalled. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Today the Consumer Product Safey Commission[“CPSC] announced a voluntary recall of 800,000 Fisher Price infant sleepers, due to a risk of infant mold exposure.

The sleepers, called Rock ‘N Play Sleepers[pictured above] have been marketed nationwide since 2009 and are designed for infants weighing up to 25 pounds. Mold can develop between the removable seat cushion and hard plastic frame if the sleeper becomes wet or is not regularly cleaned. Fisher Price has received 600 reports of mold and 16 infants have been treated for respiratory issues including coughs and hives after use of the sleeper.

The CPSC suggested consumers check for dark brown, gray or black spots on the sleeper. Those spots may indicate the presence of mold under the seat cushion. If mold is found, consumers should stop using the sleeper and contact Fisher Price for cleaning assistance and additional instructions.

The CPSC can be found here.

2012 - a bad year for Chicago pedestrians and cyclists. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Sadly 48 pedestrians were killed on the streets of Chicago last year – the highest number of fatalities in 5 years. Active Transportation Alliance Director Ron Burkle attributed the spike in deaths to the mild 2012 winter, which put more people both on the sidewalk and the roads. National Highway Traffic Safety Administration spokesman Jos Ucles however, felt that that distracted pedestrians might also be a factor. “All you need to do is look around and see everyone on a cellphone, texting, or listening to music and not paying attention to the road.”

Nearly half of the pedestrian fatalities were the result of hit and run accidents.

Cycling deaths unfortunately also went up from 7 in 2011 to 8 in 2012. The Chicago Department of Transportation recently released a lengthy, comprehensive Pedestrian Safety Plan in an effort to improve the Chicago pedestrian environment.

Those things that doctors say never happen, actually happen pretty often. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

A recent John Hopkins Patient Study contained pretty alarming findings about so-called “never events”. A “never event” is an occurrence that doctors universally agree should NEVER happen. Examples of “never events” include leaving a towel inside a surgical patient or operating on the wrong part of the body.

According to the study however, “never events” are misnamed. A more accurate description would be “events that happen far more often than people realize”. The study concluded that between 1990 and 2010, at least 80,000 “never events” occurred in American hospitals. And the estimates are probably conservative.

The researchers used the National Practicioner Data Bank(NPDB) for the study. The NPDB is a federal resource documenting malpractice claims and settlements related to circumstances where sponges are left inside patients or doctors operate on the wrong patient. Using the data from the NPDB, the researchers estimate that 4,044 surgical “never events” happen in the United States EVERY YEAR. That translates to surgeons operating on the wrong body part 20 times a week and leaving sponges in patients 39 times a week.

Marty Makary, MD, was the study leader and is pushing for public reporting of “never events”. Makary noted that if this information was readily available to the public, consumers could make better choices about where to have surgeries performed and hospitals would be “…under the gun to make things safer.”

Lessons from an errant email. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

First, some background. My dad hated squirrels. It wasn’t simple dislike. It wasn’t contempt. No, this was an irrational, unadulterated, white-hot hatred. He took it very, very personally when he saw one of the furry little critters running along a large cedar fence we had in the backyard. So much so that eventually a fully loaded BB rifle took up permanent residence behind the radiator in our kitchen. You would be amazed how quickly a man in his late 60’s, upon seeing a squirrel, could drop a cup of coffee, sprint to the radiator, grab the rifle, pump it, open the window, crouch, draw a bead and squeeze off one or more shots whenever a squirrel violated the perimeter.

Fast forward. I live in a near west suburb of Chicago. This suburb, like lots of suburbs in the area is surrounded by Forest Preserves and wooded areas. Consequently, we get our share of wildlife. Deer occasionally wander through the neighborhood. Every now and again a fox will be seen sprinting between yards. And of course raccoons. Christ, do we have raccoons. They’ve grown so fat from the garbage they have consumed they no longer possess the “fight or flight” reaction when cornered by headlights. Now they just turn around, lower their heads and look at you disapprovingly. Once when I interrupted a raccoon eating a crust of bread near my garage I thought I heard him sigh.

Two weeks ago however, there was a new development. Coyotes. More precisely four coyotes that chased a German Shepherd puppy into a house and continued clawing at the door trying to get in. The news account detailed how the dog’s owner had to shoot two of the varmints with a BB gun to scare them off. When I read the story I immediately thought of my dad and how much he would have enjoyed a delivery option – where the animals actually come to your door. Oh yes. He would have relished that.

So I fired off an email to my siblings, telling them about the coyotes and reminding them that dad, ever the trendsetter, was shooting creatures in the backyard years before it became newsworthy. I didn’t catch that I included a client who shared a first name with one of my brothers.

I spoke to that client today and he mentioned that he had gotten the email. I fell all over myself, blabbering away, embarrassed beyond belief, when I heard him laughing.

“No need to apologize,” he said, still laughing. “I thought it was great. That email was the first time I thought of you as halfway human[his exact words, ouch] and not some boring lawyer. It made me think of my dad and how much I miss him, and how differently I would treat him if he were still here.”

That’s an eye-opener. I thought I did a pretty good job of making sure clients knew I was more than the stereotypical stuff shirt lawyer. I learned today I have more work to do.

Food for thought on keeping your law practice lean. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw an interesting article online the other day about a young lawyer in Brooklyn who specializes in servicing start-ups. The lawyer, Kyle Westaway , believes that certain entrenched components of the legal system are flawed and lawyers need to rethink how they do things to stay competitive.

Westaway believes a new model of law is evolving – and it involves applying lean startup principles and challenging the old norms – like the billable hour. Westaway thinks that in light of dramatic societal and economic shifts, the American workforce will soon be made up of three equal parts: 1) robots; 2) off-shore workers and 3) highly skilled labor. He believes even skilled professional[i.e. us lawyers] will lose jobs and thinks the legal profession will eventually look like “Turbo-Tax for law”.

Westaway, in light of his affiliation with start-up companies, looks at his clients and trys to determine what would work best for his clients. He runs his paperless office out of his Brooklyn loft. He doesn’t see the need for a fancy address and has no staff. When things get hectic, he uses a virtual assistant and outsources as needed. Westaway sees a lawyer’s role as providing a solution to the client’s problem. Although Westaway used to worry about revenue that is no longer a primary concern. It didn’t hurt that he admittedly was in the right place at the right time. He got to start and lead the conversation on social enterprise law on Twitter and other social networking sites. Additionally he is teaching a social entrepreneurship course at Harvard Law School in the spring.

Westaway’s projections as to the future American workforce are a little grim[I hope], but it would be foolish to think that certain aspects of the legal system are NOT going to change dramatically in years to come – just look at the number of commercials you hear hawking do it yourself incorporations. Small law firms and solos in particular would be wise to listen to Westaway. I unknowingly embraced the startup model several years ago when I decided to relocate, eliminate staff and upgrade technology. I wish I did it years ago.

Nationwide recall of Med Prep Consulting drugs. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

According to multiple reports, on Monday, the United States Federal Drug Administration[“FDA”] announced a voluntary nationwide recall of all drugs made by Med Prep Consulting, Inc, a New Jersey drug compounding company. Compounding companies create custom drug cocktails pursuant to specific recipes from medical personnel. The drugs recalled include antibiotics, pain relievers and surgical medications. Med Prep distributes most of the drugs to hospitals and facilities on the east coast and has acknowledged mold was found in some drugs provided to a Connecticut hospitals. A copy of the recall can be found here.

WRIGHT MEDICAL HIP IMPLANTS COMING UNDER FIRE - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Along with some other medical device lawsuits that have been gathering media attention, the Wright Medical Technology Profemur Hip Replacement has recently come under fire with allegations that it is prone to early failure. The Profemur hip replacement prosthesis was approved by the United States Food and Drug Administration[“FDA”] pursuant to the 510(K) process, which expedites getting the product to market. Under the 510(K) process, the manufacturer simply has to show that the device is substantially equivalent to devices already available to the public. By obtaining approval under 510(K), Wright was not required to conduct typical pre-market safety analysis. One of the big selling points of the Profemur system is the modular stem component, which can be lengthed or shortened to properly integrate with the length of the patient’s leg. There are a number of recent lawsuits however, that allege that the modular feature actually causes fractures and/or corrosion, leading to failure. Some literature suggests hip implant should last up to 15 years. A recent Austrialian study however, showed that over 11% of the Profemur implants fail within just three years.

My firm was just retained to represent an individual who underwent hip replacement surgery with implant of the Profemur system. Not long after implantation he was having significant discomfort. Physical therapy failed to correct the problem and ultimately a decision was made to remove the Profemur system. The surgeon’s report included several comments that suggest early failure of the implant. Several other cases against Wright have been filed in Illinois state court as well as federal court. And, it appears from a quick review of those matters that Wright is fighting any allegations their product was defective.

ILLINOIS COURT SLICES CHIROPRACTOR'S HOURLY FEE - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Very interesting decision recently handed down from the Illinois First District Appellate Court. Chiropractors aren’t going to like this one

In Montes v. Mai , plaintiff Montes was a passenger in a car that was struck by a Mai’s vehicle. Dr. Fernando Perez, a chiropractor with Neck and Back Clinic in Chicago provided treatment to the plaintiff. The defendant sought the deposition of Perez, which is routine in personal injury cases. Under Illinois Supreme Court Rule 204, every physician is entitled to a “reasonable fee” for time spent at a deposition. The Clinic advised defense counsel that the fee for Dr. Perez to appear at a deposition would be $550 an hour. Additionally, the Clinic required a two hour minimum. Defense counsel balked and offered to pay Perez $300 an hour. That offer was refused.
Somehow[the opinion isn’t entirely clear]the parties elected to have the trial court decide what the hourly rate for Dr. Perez should be. The Clinic submitted financial records to the court to back up the $550 rate. The trial court however, after review of the records, ruled that the hourly rate would be $66.95 an hour. The Court’s formula was pretty straightforward – the 2007 W-2 number showing Perez income was divided by 52 weeks. That number was then divided by 40 hours. Perez refused to be deposed at that hourly rate and appealed the Court’s order.
But Perez got no relief from the Appellate Court. The Appellate Court implicity endorsed the formula used by the trial court, but did note that “…myriad ways exist to fairly and reasonably compensate a physician for his time.” Additionally, the Appellate Court noted that the best approach is for the parties to reach an agreement as to compensation[meaning that Perez should have jumped on that offer of $300 an hour].

Accounting firm has a $53 million dollar mess on its hands. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw a very interesting article in this week’s Crain’s Chicago Business about the lawsuit the city of Dixon , Illinois filed against accounting firm CliftonLarsonAllen LLP [“Clifton “]. The lawsuit, filed by Chicago firm Powers Rogers Smith alleges that Clifton, then known as Clifton Gunderson, had been auditing Dixon finances, but somehow managed to miss a $53 MILLION dollar embezzlement scheme carried out by former Dixon comptroller Rita Crundwell.

Crundwell embezzled the funds over a 20 year period and authorities now acknowledge her theft amounts to the biggest municipal fraud in US history. Dixon is demanding that it be fully reimbursed, and that Clifton missed clear signs that something was very, very wrong.

And Clifton could probably handle a large adverse verdict. It employs over 1,500 accountants and boasts $570 million dollars in annual revenue.

The article detailed some of the facts that should have tipped Clifton off that perhaps Ms. Crundwell was cooking the books. Consider that although Crundwell’s annual salary was $57,000, she somehow managed to purchase hundreds of horses and 14 cars. Additionally, her 2007 tax return showed receipts of $700,000. Ironically, that particular tax return was prepared by a Clifton partner, Ronald Blaine. And when quizzed about that return at his deposition, Blaine, now retired, could not remember asking for or receiving any documentation to support those figures. Finally, Ms. Crundwell was submitting Illinois Department of Transportation invoices for payment. But the invoices lacked any IDOT logos or headings. And one of the invoices was dated November 31, 2004 – a date that does not exist. I thought accountants were supposed to pay attention to those types of things.

Clifton says that it resigned as auditor in 2005 in order to maintain other duties after Dixon received federal funds and was required to hire an independent auditor. And Clifton claims that as a result of its resignation, it was unable to perform the type of investigation necessary to uncover the fraud. Dixon however, says that Clifton continued doing the audits, and just had an unrelated CPA sign off on the documents. Additionally, despite Clifton’s resignation as auditor, payments to the firm dipped only slighty, and by 2008 were substantially higher. Hmmmmm…..

Crundwell, for her part, pled guilty to wire fraud and faces up to 20 years in prison. Federal marshalls have already sold off some of her ill-begotten property and have collected approximately $8 million dollars.

The Powers Rogers firm has some legendary trial lawyers. Clifton would be very, very wise to resolve this quickly. It is only going to get much, much worse.

Cardiologist collects $2.4 million in New Jersey whistleblower case - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Nicholas L. DePace MD, a prominent New Jersey cardiologist(pictured above) will receive $2.4 million dollars for his role in a whistleblower suit against Cooper Health Systems and Cooper University Hospital, located in Camden, New Jersey. After a lengthy investigation by the United States Department of Justice and the New Jersey Attorney General, Cooper agreed to pay $12.6 million dollars to resolve allegations of Medicare and Medicaid fraud.

The qui tam case was originally filed by DePace who claimed the Cooper was paying kickbacks to doctors for referring patients to the hospitals. The kickbacks came in the form of payments to high profile doctors for allegedly providing ‘”advisory services” to the Cooper Heart Institute Advisory Board. The doctors were supposed to be providing advice to the Board regarding issues such as developing technology and research. In actual fact, however, there wasn’t much actual advising being done. Select physicians were paid $18,500 simply for attending very brief lectures, some of which had little to do with medicine. Federal officials claim the payments were actually kickbacks for patient referrals. Dr. DePace deserves recognition for his courage in bringing the kickback scheme into the light.

Cooper University Hospital CEO John P. Sheridan however, insisted that Cooper had done nothing wrong. Instead, Cooper was paying the government nearly $13 million dollars simply to “to avoid the burdens and uncertainties of a protracted litigation.” One of those “uncertainties”that Mr. Sheridan was worried about appears to be the likelihood of a rather large adverse result at trial after the hospital couldn’t plausibly explain why doctors were being paid for doing nothing. Good call Mr. Sheridan.

HUGE WIN FOR ILLINOIS WORKERS!!!! - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Illinois Supreme Court recently released an opinion – Interstate Scaffolding v. The Illinois Workers’ Compensation Commission – that provides some much needed protection to Illinois workers. Jeff Urban was an Interstate union carpenter. On July 2, 2003 he suffered a work-related injury to his head, neck and back. After he was injured, Urban underwent a significant amount of medical treatment that sometimes required him to remain off work. At other times, he was allowed to work “light duty”.
On May 25, 2005, Urban was working “light duty” at Interstate’s Hazel Crest facility. At some point that day he went to the office and advised payroll that that there was an error in his check. Additionally, he advised that a recent check had actually overpaid him. The information regarding the overpayment was relayed to the Jan Coffey, the assistant to the company president. Coffey became irate when she learned the news about the overpayment. A couple of weeks earlier Urban had drawn some religious symbols in a company storage room. Coffey felt that Urban, as a professed religious man, should not have accepted the overpayment. She confronted Urban and accused him of being a “hypocrite”. Not surprisingly, Urban was angered by the confrontation and there was a brief heated argument. The local police were called but no arrests made.
After the police left, Coffey phoned Ron Fowler, the company president and advised him of what had occurred. Fowler then contacted Urban’s supervisor and instructed him to fire Urban. Urban was fired that day. After the termination, the company refused to pay Urban temporary total disability [TTD] benefits to Urban. Under the Illinois Workers’ Compensation Act, TTD [a percentage of the worker’s average weekly wage] is to be paid until a worker’s condition has stabilized. As of May 25, 2005, Urban’s condition had not stabilized.
Urban then filed his a Workers’ Compensation case with the Illinois Industrial Commission. On June 25, 2005, the arbitrator found that Urban was not entitled to TTD after his termination. Urban appealed and the Commission modified the arbitrator’s ruling, extending TTD to June 28, 2005, the date of the hearing. Interstate appealed that decision to the Circuit Court, who confirmed the Commission decision. Interstate then took the case to the Appellate Court who ruled that Urban was not entitled to TTD. Urban then took the case to the Supreme Court.
The Supreme Court decision is brief and well-written. The Court noted that when a worker is seeking TTD, the critical inquiry is whether the condition had stablized. Urban’s condition on the date of discharge HAD NOT stabilized. Consequently the employer’s duty to pay TTD did not stop because Urban had been fired for cause. The Court established an important principle -when an employee entitled to TTD is terminated for conduct unrelated to the injury, the employer remains obligated to pay TTD until the employee’s condition is stabilized.

AN OVERVIEW: THE ILLINOIS HOME REPAIR ACT - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Illinois Home Repair Act [815 ILCS 513/25] is getting a lot of attention these days because of some conflicting Appellate Court opinions interpreting the Act’s requirements. If you are an Illinois contractor engaged in home repair and remodeling, here is a very basic primer on what you need to do in order to comply with the Act:
1) If the project is going to cost more than $1000, there is to be a written contract, setting forth the total cost. Additionally, the business name and address of the person[s] engaged in the work is to be provided. 815 ILCS 513/15.
2) Notify the client if the contract is going to impact the client’s right to recovery. Specifically if the contract provides that disputes are to be resolved via arbitration or the right to a jury trial is waived, the contractor is to specifically notify the prospective client of those provisions. Although it is not set forth in the statute, it would be prudent to have a separate document spelling out the arbitration and jury waiver rights. 815 ILCS 513/15.1[a].
3) Document the client’s decisions as to the arbitration provision or jury waiver in writing. The statute suggest having the client simply write “accept” or “reject” in the margins wherever the provisions appear in the contract. 815 ILCS 513/15.1[b]. That’s a little informal. You might want to have a separate document formally demonstrating the client’s election as to those issues.
4) Give the client a copy of the “Home Repair: Know Your Consumer Rights” pamphlet provided by the Attorney General. And, have the client sign and date a “Consumer Rights Acknowledgement Form” also provided by the Attorney General. 815 ILCS 513/20 [a].
5) Last, but not least, be sure that you are properly insured. The Act requires contactors to carry certain levels of public liability and property damage insurance.815 ILCS 513/25.
Please note: the above list is NOT comprensive, and is only meant to be a general discussion of what the Act requires. Be sure to check with an experienced attorney before undertaking any remodeling projects

In Colorado, the Catholic Church apparently doesn't know what its lawyers are up to. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

In 2006, Jeremy Stodghill filed a medical malpractice/wrongful death case after his wife, seven months pregnant at the time, died at St. Thomas More Hospital, a Catholic hospital in Canon City, Colorado. In addition, the twin fetuses she was carrying died as well.

Mr. Stodghill brought his wife to the Emergency Room that day after she experienced vomiting and shortness of breath. He dropped his wife in the ER and went to park the car. By the time he returned to the ER, his wife had lost consciousness. Approximately an hour later, Ms. Stodghill suffered a heart attack and died. The twins had been left inside her womb and they died as well. Stodghill sued, alleging that the twins could have been saved if medical personnel had taken appropriate emergency action. Despite being paged, the on-call obstetrician never responded. An ER nurse listened for fetal heart sounds, but none were heard. The ER doctor then decided against taking any action to save the babies.

The hospital’s lawyers, in defending the case, argued in part, that under Colorado law, a fetus is NOT a person, therefore, the twins could not recover anything in a lawsuit. Two lower courts have sided with the hospital and Stodghill’s case is now before the Colorado Supreme Court.

The hospital’s argument that a fetus is NOT a person directly contradicts the Church’s position that life begins at conception. After news of the story broke a couple of day ago, three Colorado bishops said they will conduct a “…full review of this litigation and of the policies and practices…to ensure fidelity to and faithful witness to the teachings of the Catholic Church.”

Okay, so the church has recognized that taking a legal position directly contrary to its position that life begins at conception might raise some eyebrows. So the Church will “review” the litigation. Is the Church really suggesting that it didn’t know its lawyers had taken this position? Hard to imagine. Cosider that the Colorado statute of limitations for medical malpractice is 2 years – so presumably this case has been on file since 2008 or earlier. And the case is currently residing with the state Supreme Court. So this “fetus is not a human defense” was likely originally raised in a motion, and then briefed by the parties. The motion was then probably argued before the trial judge. The trial judge granted the motion. That order eliminated a substantial portion of the case. Typically, lawyers tell their clients when good things happen. In the old days, lawyers did that via snail mail. Nowadays, good results can be transmitted in seconds via email. The Church’s lawyers seem very capable. Maybe the Church internet connection was down.

Then the plaintiff appealed to the Colorado Appellate Court. Appellate Briefs were probably drafted. Those briefs have to spell out the legal arguments in detail, citing the statute and relevant case law. Appellate lawyers often send copies of the briefs to their clients for review or simply to let them know the work is being done. The Appellate Court then apparently upheld the trial court’s ruling, most likely in a written opinion. Once again, that would have been good news for the Church. Most appellate lawyers, proud of a good result, immediately share that with the client, oftentimes providing a copy of the the opinion. The Church hasn’t commented if it was aware of the Appellate Court ruling.

The plaintiff then appealed the Appellate Court’s ruling to the Colorado Supreme Court. A couple of news stories pop up in local papers and on the internet that Church lawyers are arguing a fetus doesn’t have legal status. Someone wakes the Most Reverend Bishops and they are most disturbed. They are going to look into this.

Maybe the Church was utterly clueless that its lawyers had taken a position directly contrary to Catholic teachings. And maybe the Church was aware that if successful, that position, would afford the Church an opportunity to eliminate the potential of a multi-million dollar settlement or verdict. So the Church simply decided to keep quiet and hope nobody makes a stink. Sound familiar?

SHOCKING FACTS IN BOY SCOUT SEX ABUSE TRIAL - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

A Portland, Oregon jury recently awarded compensatory damages of $1.4 million to Kerry Lewis, 38[pictured above] in his sexual abuse trial against the Boy Scouts of America[BSA]. The abuse had taken place in the 1980’s when Lewis was a young boy. The verdict, in light of the evidence, is hardly surprising.
Lewis was a member of a Boy Scout troop sponsored by The Church of Jesus Christ of Latter Day Saints[commonly called the Mormon Church]. The pedophile Scoutmaster, Timor Dykes, was a member of the church congregation. In 1983, before abusing Lewis, Dykes had gone to a Mormon bishop and confessed that he had already abused 17 boys. Dykes was then briefly barred from participating in Scouts. In 1984, he was then allowed to rejoin the Scouts. Some parents of the Scouts were advised about the Dykes suspension. The parents of Kerry Lewis were not. Shortly after rejoining the Scouts, Dykes sexually abused Lewis.
During the trial, the plaintiff was allowed to offer evidence regarding the “perversion files” – nearly 1000 files documenting cases of suspected sexual abuse in the BSA. The BSA had tried to keep the files confidential, but the Oregon Supreme Court ruled that the files were admissible.
Next week the jury reconvenes to consider the issue of punitive damages. I anticipate a large punitive award as well.

COLLABORATIVE DIVORCE - A KINDER, GENTLER DIVORCE - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Shia Kapos had an interesting article in this week’s Crain’s Chicago Business on the “collaborative divorce”. Collaborative divorce started in Minnesota about 20 years ago. The objective of a collaborative divorce is to expedite the divorce process, while minimizing the drama and dollars associated with the traditional divorce. Here is how it works – the parties agree to work with divorce lawyers who have received specialized training in collaborative divorce law. Then the parties, and lawyers, sit down, [with the help of financial experts and life coaches[?]] and eventually work out an agreement that is then presented to a judge for approval. If successful, a collaborative divorce generally costs only half of what a traditional divorce will run.
The jury is out as to whether this concept is catching on in Illinois. Only 7% of the divorces filed in 2008 used the collaborative approach. But when parties do decide to try collaboration, it usually works, with only 5% of collaborative divorces having to ultimately return to the traditional divorce approach.
Some lawyers like it. James Galvin, one of the founders of the Collaborative Law Institute of Ilinois noted that the process “allows clients to make decisions about their lives instead of lawyers or judges” Some lawyers aren’t impressed. David Novoselsky was involved in a divorce with Mr. Galvin on the other side. It started out as a collaborative divorce, but eventually the parties wound up in traditional litigation. “[Collaborative divorce is] a boondoogle,” Novoselsky said. “Collaborative law is the North Shore trend of the week. If you have two reasonable people and two decent lawyers who are interested in helping clients, you don’t need to go through this formal process that’s been named “collaborative law”.
Susan Schwallie, a food market researcher went through a collaborative divorce in 2007 and had a positive experience. But, as the article noted, she still felt like she got the short end of the marriage deal. “No matter how you do it, you feel that way,” she noted. “It’s not just financial or material loss. It’s a loss all the way around.”

IN PRAISE OF LAWYERS... - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Trial attorneys have taking a beating of late. The media, late night talk show hosts, Republican hacks/flacks…
This video, forwarded by another Illinois lawyer is a great rebuttal. Enjoy!

An insider's thoughts on how insurance carriers manipulate data when evaluating claims. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

I saw a great article online the other day and George Bellas linked to it as well. Becky Yerak, an writer for the Chicago Tribune, wrote about how insurance companies using computer software to evaluate injury claims can manipulate the data. And Yerak had a particularly valuable source – Mark Romano – a former Allstate Insurance Claims Manager. But Romano wasn’t just a simply Claims Manager. He was also the guy that oversaw Colossus – the software program that Allstate uses to evaluate injury claims.

The article details that in October, 2010, Allstate agreed to pay $10 million dollars as part of a settlement regarding Allstate’s use of certain software programs to evaluate payments to policyholders[presumably on underinsured, or uninsured automobile injury claims]. Despite that large number, Romano felt the settlement amounted to a slap on the wrist.

Romano says that the software programs at issue are manipulated to skew the numbers downward. And, in a rather shocking admission, Romano ommented that while overseeing claims at Allstate, “I did not feel many of the things I was directed to do were proper and that I was hurting policyholders and claimants.”

Last June, Romano co-authored a Report entitled “ Low Ball: An Insider’s Look at How Some Insurers Can Manipulate Computerized Systemsto Broadly Underpay Injury Claims – which in layman’s terms would be retitled: “How Insurers Use Software to Screw Claimants”. In the Report, Romano describes the ways insurers keep their payments down. For example, insurers periodically remove large settlements from the database. Poof!! One day those large settlements are just gone. The big numbers go missing but the small numbers remain. Then the adjusters use those artificially created numbers and tell claimants: “Hey the numbers don’t lie…here is what people typically recover for your type of injury.”

The report also details how insurance software has hundreds of codes representing various types of injuries. Collossus, for example, has approximately 600 injury codes. Experienced adjusters, in evaluating specific claims, can pick codes that typically result in lower settlements. Again, manipulation of the software to lead to a specific result -low offers. Lawyers who suspected these types of shenanigans were going on eventually filed a multi-state class action lawsuit against Allstate that led to the $10 million dollar settlement. Additionally, as part of the settlement, Allstate agreed to tell policyholders that software was being used to assess claims.

And that gets us back to Romano’s thoughts on the settlement. He doesn’t think that the investigation into what Allstate was doing was complete. For example, the investigators claimed to have interviewed 40 Allstate claims personnel in 4 states. But Romano -the Allstate Claims Manager who also supervised the Colossus program – was never contacted. And, Romano thinks that significant issues – like precisely what medical bills adjusters consider – were left unanswered.

Interestingly, Romano ended up suing Allstate in federal court. He claims that he took some time off work under the Family and Medical Leave Act in 2008. And, he claims, upon his return, Allstate punished him for taking time off by putting him in a new position and refusing to return him to his former job. That lawsuit was settled for what Romano described as a “nominal” amount. Romano insists however, that his fight against computerized claim analysis isn’t sour grapes.

Allstate claims that the way it evaluates claims is perfectly legal and gives customers and claimants fair payment in a timely manner. Right.

HUGE RECALL OF MARIE CALLENDAR PRODUCTS - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Just saw some news that ALL Marie Callendar brand cheesy chicken and rice frozen meals are being recalled in light of salmonella claims in 14 states.

IMPORTANT ILLINOIS APPELLATE COURT RULING ON "SOCIAL HOST LIABILITY" - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Interesting opinion recently issued by the Second District of the Illinois Appellate Court. The facts are tragic. In Bell v. Hutsell , Daniel Bell and Ross Trace, both under 21, were invited to a private residence for a party. The party was at the home of Jeffrey and Sara Hutsell, and hosted by their son, Jonathan, an 18 year old high school student. A number of the people at the party were high school kids. Prior to the party, Jonathan’s parents told him that they would be monitoring the party to ensure that no alcholic beverages were consumed. Throughout the evening however, while the parents were present, party attendees consumed alcohol that was brought into the party by the students. No alcohol was provided by the parents. After becoming impaired at the party, Daniel Bell left the party in his car. Ross Trace left with him. Shortly after leaving, Bell struck a tree with his car and he and Trace were killed.
Bell’s mom filed a complaint against Jeffrey and Sara Hutsell. A number of theories were alleged. The primary hurdle Ms. Bell faced was the long-standing precedent in Illinois that “social hosts”[i.e. people who provide alcoholic beverages to friends or neighbors at their homes] cannot be held liable when people who become intoxicated at house parties then do harm to others or themselves. In order to get around the “social host” bar, Bell alleged that the Hutsells had acted negligently after voluntarily undertaking a duty to monitor the activities and prohibit any drinking.
Defendants moved to dismiss, arguing that since the death of Daniel Bell was ultimately alchohol related, and the Hutsells were social hosts, there could be no recovery. The trial court granted the motion and dismissed the complaint. Plaintiff appealed. The Appellate Court noted that “…the instant complaint alleged something different from the direct or indirect giving, selling or delivery of alcohol. It alleged tha the defendants voluntarily undertook the duty to to prevent the consumption of alcohol on the premises and they negligently performed that duty”. The Court went on to note that “…because defendants did not supply the alcohol, store the alcohol, or affirmatively permits its consumption, they were not social hosts.” The Court overruled that portion of the trial court’s order dismissing the voluntary undertaking counts. I anticipate that the defendants will likely bring this case to the Illinois Supreme Court. Until then, trial lawyers will be looking much more closely at the facts when reviewing alcohol-related injury cases.

HUGE HARASSMENT VERDICT AGAINST CHRYSLER FOR ROCKFORD AREA MAN - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Something else that was overlooked by the Chicago-area news outlets…

A federal jury in Winnebago County, Illinois recently hammered Chrysler in a religious and ethnic harassment case. Otto May, a Cuban-born Jew, had worked at the Belvidere, Illinois Chrysler plant for 22 years as a pipefitter. During that time he had been repeatedly harassed because of his ethnic background and religion. His tires had been slashed. Vile threatening messages had been scribbled on his locker[“Kill the Jew” and “Heil Hitler” two of the more appalling examples]. May filed suit against Chrylser, claiming that the company hadn’t taken sufficent action to put a stop to the harassment.
Last week the jury returned an enormous verdict, awarding May $709,000 in compensatory damages and $3.5 million dollars in punitive damages.
Congrats to Karen Doran and Deanne Medina, the attorneys who represented May.

JURY AWARDS $18.5 IN PUNITIVE DAMAGES IN SEX ABUSE CASE AGAINST BOY SCOUTS - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Wow – for some reason I didn’t see this. In my April 23 2010 post, I discussed the $1.4 million dollar jury verdict against the Boy Scouts of America. The verdict, on behalf of plaintiff Kerry Lewis, represented only the compensatory damages for the sexual abuse he endured back in the 1980’s at the hands of Scoutmaster Timur Dykes[pictured below] while Lewis was a Boy Scout. At that time, the jury had not decided on punitive damages. [Timur Dykes] Well, the jury came back last week, with an enormous award against the Boy Scouts. $18.5 million dollars!! Lawyers for Lewis had argued that the Boy Scouts were aware that Dykes had abused at least one child in the early 1980’s. The Boy Scouts denied they had any such knowledge.

$30 MILLION DOLLAR VERDICT RETURNED IN COOK COUNTY IN "POPCORN LUNG" CASE - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Didn’t see much coverage of this in the local press, probably because of the Blago insanity. But this week a Cook County jury awarded $30.4 million dollars to Geraldo Solis, who suffers from bronchiolitis obliterans, or “popcorn lung disease”. Popcorn lung disease typically affects workers exposed to substances used in the manufacture of microwave popcorn and other foodstuffs. The disease is irreversible and affects the lungs, causing constriction and ultimately blocking the passage of air.
Solis alleged that while working for a Downers Grove compay, he was exposed to fumes and dust from artificial butter flavoring. He was diagnosed with popcorn lung in 2006. Presently, he has only 25% lung capacity. Absent a lung transplant, the flu could kill him.
Solis filed suit against a number of companies that supplied flavored chemicals to the plant where he worked. All of the companies save BASF Corporation settled. BASF supplied Diacetyl to the Downers Grove facilty. Diacetyl is a flavoring chemical that has been linked to popcorn lung. After a two week trial the jury awared $32 million to Solis, but decreased the award slightly claiming Solis was 5% contributorily negligent. The defense claimed that Solis’ lungs were already significantly compromised when he went to work in Downers Grove, and that BASF hadn’t caused the disease. Missouri attorney Kenneth McClain, who represented Solis noted that the jury didn’t buy the defense arguments. Additionally, there was evidence that Solis got much sicker after the BASF product was introduced. BASF has vowed to appeal.

ILLINOIS ATTORNEY GENERAL RIPS NICOR INSURANCE PROGRAM - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

As reported by Steve Daniels in the May 3, 2010 issue of Crain’s Chicago Business , Illinois Attorney General Lisa Madigan is unhappy with Nicor. Madigan is claiming that Nicor’s gas pipe repair service insurance is a rip-off. The insurance plan, officially known as ComfortGuard, covers the cost of repairing gas pipes in customer homes. According to Madigan’s office, the Nicor advertising campaign affiliated with the program is misleading. The ads allegedly imply that customers who don’t buy the insurance will have to hire outside contractors to fix the pipes. In reality Nicor is obligated to repair pipes inside the home.
About 20% of Nicor customers[440,000] purchased the insurance, which sells for $4.95 a month. Nicor pocketed $26 million in profits from the program last year – while paying out only $60,000 in claims. Madigan is asking the Illinois Commerce Commission[ICC] to bar Nicor from hawking ComfortGuard.
In a statement, Nicor noted that ComfortGuard “…provides a real value to its many customers…” Nicor is expected to specifically respond to criticisms in hearings before the ICC. The ICC is expected to rule on the controversy sometime in early 2011.

ILLINOIS HOME REPAIR AND REMODELING ACT - PART DEUX - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

In Behl v. Gingerich , the Fourth Appellate District of Illinois recently weighed in on what constitutes “substantial compliance” with the Illinois Home Repair and Remodeling Act[“the Act”]. In the summer of 2006, defendant Gingerich approached John Behl[d/b/a Behl Construction] about doing some work at the Gingerich home. Defendant Gingerich was a plumbing contractor and had worked with Behl and had confidence in him. Gingerich wanted Behl to build a garage, do some remodeling inside the home and on an existing porch. Plaintiff submitted a bid. The cost was too high and the parties talked about cutting some expense. A second bid was resubmitted and defendant agreed to the terms. The job was scheduled to last 3 months. On several occasions, plaintiff accompanied the defendant to the bank for partial draws and execution of lien waivers. As luck would have it, the parties ultimately had a disagreements about monies owed and work left to be completed. Finally plaintiff concluded he was going to get stiffed and left the job.
In August, 2007, plaintiff filed suit. Ultimately, plaintiff filed a second amended complaint, alleging breach of contract[Count I], foreclosure of mechanic’s lien[Count II] and promissory estoppel [Count III]. Defendant’s answer alleged that plaintiff had failed to comply with the Act, by not securing a written, signed contract before beginning construction. The case went to trial and the Court awarded plaintiff $9594.93. Defendant appealed, insisting that the plaintiff had committed unlawful acts by failing to secure a signed contract and failing to provide defendant with a consumer rights brochure.
The Appellate Court noted for any repair or remodeling over $1000 the contractor is required to provided the customer with a written work order or contract and have the customer sign it. Additionally, the Act requires contractors to provided customers with a brochure detailing their rights. Behl did neither. The question for the Court was – did Behl substantially comply? The Court, after an exhaustive analysis of recent caselaw concluded Behl did substantially comply with the requirements. It was particularly important to the Court that both parties were in the construction trade and had negotiated extensively regarding the job. Absent those facts, Behl might not have prevailed. Most prudent course of action? Do exactly what the Act requires. Don’t take any chances.

SOME HELPFUL HINTS FOR JUDGES - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

One of my favorites legal writers, Kenneth P. Nolan had a great Sidebar column in the April issue of the Litigation, the American Bar Association Section of Litigation Journal. The column offered some advice to judges on how to run a courtroom. The column should be read in its entirety[as all of Nolan’s columns should]. With apologies to Mr. Nolan, I offer the highlights:
1. Be on time . Nothing more annoying that waiting, with 25 other equally annoyed lawyers for a judge to take the bench. We do have other places to be.
2. You’re not God . As Nolan correctly points out, a good percentage of sitting state court judges are wearing robes because they share DNA with powerful policitical types and NOT because they were Law Review at Harvard. No one expects you to be Solomon. If you make a mistake, admit and move on. A judge who admits his or her mistakes makes quite an impression.
3. Don’t be a bully . My personal favorite. I was in a courtroom last week where some old fart judge was rude, impatient and dismissive with virtually every lawyer who stepped up. Are lawyers annoying? Absolutely. But most of us are trying our best, sometimes under more pressure than we would like to admit. So how about you cut us some slack and ease up on the venom?
4 Lawyers have to make a living. And as Nolan points out, making a living these days is a little more complicated than it was when your honor practiced 30 years ago. Lots of plates spinning in the air at the same time. Keep that in mind the next time you hear a request for a brief continuance.
5. Be fair. Maybe you logged a couple of years working for an in-house insurance company defending personal injury claims before you ascended to the bench. There you were expected to think that every personal injury plaintiff is a lying weasel. Okay, but now you’re a judge. Sure sometimes it is hard to push those feelings aside, but as Nolan notes “You can do it. You’re that good”.

HARD TIMES AT BIG FIRMS.... - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The September 20, 2010 Crain’s Chicago Business did an article on how some former Chicago big firm lawyers, having been downsized, are now starting their own firms. The article goes into detail about where the particular lawyer had formerly practiced, what led to his or her departure, and the trials and tribulations these lawyers face as they learn to practice in leaner, less grandiose settings. One lawyer remarked that after pizza parties, they had to clean up after themselves. The horror.
One part of the story that received only a passing reference was the hourly rates these lawyers had charged at their old firms. None of them were charging their clients under $400 dollars an hour. Most of the attorneys were billed out at around $500 an hour, and a couple were billed out at even higher rates. Most of the lawyers discussed were in their early 40’s. Probably all very good at what they do, but none of them were names I recognized. [In fairness, I am sure none of them would recognize my name either].
Is it any wonder these folks are losing their jobs? It’s tough out there. After some initially encouraging news, the latest unemployment numbers were bad. The real estate market is depressed and some experts are saying it will be years before values rebound. Builders aren’t building. Foreclosure numbers are through the roof. The landscape is littered with the remains of once-solid companies gone belly-up[Circuit City; Woolworth’s; Wickes Furniture; Sportmart, just to name a few]. Smart firms will take note and act accordingly by reducing hourly rates, offering fixed fee arrangments and finding other ways to somehow contain legal fees. Those that don’t do so at their peril.

MCHENRY COUNTY CANCER CLUSTER CASE SET TO BEGIN - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

A very intriguing case with local implications is about to unfold next week in Philadelphia, Pennsylvania. A group of 31 people that lived or had businesses in McHenry County, Illinois is suing Rohm and Haas Chemicals, a subsidiary of Dow Chemical. The plaintiffs are alleging that for over 50 years, Rohm and Haas spilled, leaked and dumped toxic chemicals into the soil and groundwater near its Ringwood plant, located in McHenry, County, Illinois. The plaintiffs[all of whom lived or worked near the Ringwood plant] are alleging that as a result of that dumping, 17 of them were ultimately diagnosed with malignant brain cancer. Another 13 were diagnosed with benign brain cancer. The remaining plaintiff needed a liver transplant due to severe organ toxicity. Ten of the plaintiffs[ranging in age from 42 to 74]have died.
Aaron Freiwald, the Philadelphia lawyer representing the plaintiffs claims that this group of patients represents the largest brain “cancer cluster” in a non-work environment. A “cancer cluster”, according to the National Cancer Institute, is suspected when several members of the same family, friends, neighbors or co-workers are diagnosed with the same or related cancer. Frewald indicated that a pathologist is going to testify that brain tissue from the patients with brain cancer shows environmental damage.
Rohm and Haas officials deny that there is any connection between the dumping and the health of the plaintiffs. The company cited reports from the McHenry County Health Department, the Illinois Department of Public Health and the Centers for Disease Control – reports the company claimed disputed the existence of any cancer cluster. Freiwald disputes the findings, saying that incorrect data was used. The trial is expected to last 2 to 4 months.

ILLINOIS HOME REPAIR AND REMODELING ACT CLARIFIED BY SUPREME COURT - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Finally, after much back and forth among the Appellate Courts, the Illinois Supreme Court has weighed in on what happens when a contractor technically violates the Illlinois Home Repair and Remodeling Act [“the Act”]by not complying with some of the provisions.
In K. Miller Construction Company, Inc. v. Joseph McGinnis, K Miller Construction, the plaintiff, was a Illinois construction company owned by Keith Miller. Defendant Joe McGinnis was an Illinois real estate attorney. Plaintiff had previously done remodeling work for McGinnis and the two guys were friends[operative word there is “were” – another example of why you should never do business with friends].
In 2004 McGinnis bought a three flat that he intended to convert into a single family home. He entered into an oral contract with the defendant to do the remodeling for about $190,000. Not long thereafter, McGinnis decided to incorporate significantly more work than originally discussed. The cost grew to around $500,000. McGinnis paid Miller the first $65,000 but refused to make any further payments until the job was done.
McGinnis visited the building repeatedly to give approval for work being done. In the summer of 2006, the final walk-throughs were done. Most of the work was approved. McGinnis made some additional payments but still owed Miller over $300,000. McGinnis refused to pay, so Miller sued. Plaintiff had a three count complaint: Count I seeking to foreclose a mechanic’s lien; Count II breach of oral contract and Count III, in quantum meruit, basically asking for the reasonable value of the work done. McGinnis moved to dismiss arguing that plaintiff had not complied with the Act, which require a written contract for jobs over $1000. The trial court granted the motion and dismissed the case.
Miller appealed and got some, but not total relief. The Appellate Court ruled that the breach of contract count and mechanic lien counts were out. But, the Court said Miller could go forward on a quantum meruit claim. McGinnis of course, was not about to let that result stand. So he took an appeal to the Illinois Supreme Court.
The Illinois Supreme Court didn’t overthink this one. They simply looked to Public Act 96-1023, effective July 12, 2010[after Miller filed his case]. Public Act 96-1023 rewrote the Act and indicated that any violations were to be remedied by an action under the Consumer Fraud Act. The Court ruled that the amendment made quite clear that entering into an oral contract does NOT make the contract unenforceable. Similarly, the Court held that quantum meruit would still be available to a contractor, even if there was no written contract. A good, common-sense result, that probably makes lots of contractors very, very happy.

JUST WHEN YOU THOUGHT "ILLINOIS CIVIL JUSTICE LEAGUE" COULDN'T STOOP ANY LOWER... - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Illinois State Bar Association[ISBA], the largest voluntary association of lawyers in Illinois, is condemning some radio ads concocted by JUSTPAC, the political action committee of the Illinois Civil Justice League. The ads, which attack Illinois Supreme Court Justice Thomas Kilbride, were described as “inappropriate” and the ISBA said they distorted the Judge’s record as soft on crime. Kilbride is a widely respected jurist who has been endorsed by prosecutors and defense lawyers of both parties across the State of Illinois. The State Fraternal Order of Police has endorsed him as has the National RIfle Association. Even former Illinois Governor James Thompson has endorsed him.
Despite the rebuke from the ISBA, ICJL is committed to continuing the ads. “We’ll stand by everything on the ads” spouted League Director Ed Murnane.
You would think Murnane and his ilk would go away after Kilbride is re-elected next week. But sadly, they won’t. The ICLJ is very well funded by groups that want to limit the rights of ordinary citizens to seek redress against corporations in courtrooms throughout Illinois. And as long as those groups continue to pour money into ICLJ coffers, the ICLJ will be happy to do what they do best – distort the truth.

ILLINOIS APPELLATE COURT SAYS EVANSTON WOMAN USING ALLEY TO DUMP YARD WASTE IS AN "INTENDED USER" OF MUNICIPAL PROPERTY AND CAN RECOVER FOR INJURIES - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Every Illinois personal injury lawyer dreads the “permitted and intended user” defense. You see it every time you represent someone who was injured while on public property. The law in Illinois says that a municipality owes a duty or ordinary care to people using public property only if the injured person was a “permitted and intended” user” of the property. It seems that regardless of how perfectly natural the use of the property is, lawyers for the village, town or City will file that motion, arguing that the injured party was neither a permitted, nor an intended user of the area.
The First District Appellate Court recently faced this precise issue in Gutstein v. City of Evanston . In that case, the plaintiff, Elizabeth Gutstein, a resident of the City of Evanston, was pulling some weeds in her backyard. She went to toss them in a bin specifically designated by the City as a “Yard Waste” disposal bin. The bin was located in an adjacent alley, just past her backyard gate. After reaching her gate, the plaintiff was momentarily distracted. As she took a step into the alley, she fell due to the presence of a large depression in they alley. As a result of her fall she suffered serious injuries to her elbow. Ms. Gutstein sued, alleging that the City of Evanston failed to properly maintain the alley. The case went to trial. After plantiff had put on her evidence, the City of Evanston moved for a directed verdict, arguing[among other grounds] that the plaintiff was not an “intended” use of the alley. The trial court disagreed and a jury returned a large verdict for plaintiff – a rarity in slip and fall cases. The City of Evanston appealed, maintaining that Gustein was not an intended user.
The Appellate Court first acknowledged the relevant portion of the Tort Immunity Act, which provides: “A local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property…745 ILCS 10/3-102(a). Both parties stipulated that Gustein was a permitted user of that alley. The question then – was Gutstein an intended user? The law requires that there be some affirmative, physical manifestation of the City’s intent that person could use the area.
The Court noted that there were no physical manifestations. But, Evanston had a policy requiring residents to place their yard waste in the alley for pickup. If the bins weren’t placed in the alley, the policy explicitly stated that they would not be picked up. Borrowing a phrase from an earlier opinion, the Appellate Court decided that by enacting that policy Evanston had created a “safe harbor” in which plaintiff could walk in the alley to dump yard waste into the bin. Ms. Gutstein was indeed an “intended user” of the alley.
The opinion also gives some guidance on discretionary immunity, but that discussion is for another post. Congrats to Corboy & Demetrio on this win.

ILLINOIS WHISTLEBLOWER CASE DISMISSED BY JUDGE - PLAINTIFF DID NOT GO TO PUBLIC OFFICIALS - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The November 15, 2010 Chicago Daily Law Bulletin discussed a recent federal court decision where the plaintiff’s claim under the Illinois Whistleblower Act got tossed – because the plaintiff failed to bring his alllegations to public officials.
According to the article, wiritten by Patricia Manson, the plaintiff, Gregory Zelman, worked as a piano accompanist at Hinsdale High School. He worked there from 2001 through 2008. He was terminated in 2008. Zelman sued Hinsdale High School District 86 after his termination on multiple grounds, including a count under the Illinois Whistleblower Act. Zelman alleged that while an employee, he learned of misappropriation of school property and misuse of copyrighted material. Zelman brought these matters to the District 86 Superintendent,but did NOT bring the allegations to police or government officials. After his termination, Zelman asserted that the School District was retaliating against him for speaking out about the illegal activity he allegedly observed.
The School District moved to dismiss the Whistleblower Count, arguing Zelman could not state a claim. United States District Court Judge Sharon Johnson Coleman agreed and dismissed the Whistleblower Count. In her opinion, she noted that under the Whistleblower Act, there is no cause of action where an employee reveals information only to his employer.

ILLINOIS CIVIL JUSTICE LEAGUE ATTACKS ON JUSTICE KILBRIDE UNFOUNDED AND UNFAIR. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Great piece today by Greg Hinz in Crain’s Chicago Business about the efforts by the Illinois Civil Justice League[ICJL] to unseat Illinois Supreme Court Judge Thomas Kilbride. [pictured above]. The ICJL, through its political action committe JUSTPAC has issued a couple of vicious smears on Kilbride. A recent JUSTPAC radio ad featured actors, playing criminals, recounting the gory details of their violent crimes. And then the ad says the Kilbride “sided” with the criminals.
Couple of points need to be made here. First, Kilbride is widely respected throughout the state by police officers, prosecutors and criminal defense lawyers – of both parties. Former Governor James Thompson[who knows a thing or two about being tough on crime] has even endorsed him. So any suggestion Kilbride is somehow soft on crime is flat wrong.
Secondly, it should be noted that the ICJL doesn’t really even care about criminal law. ICJL is a pro-business group that desperately wants to restrict the rights of ordinary citizens to sue when injured by corporate negligence. The ILCJ was particularly incensed when Kilbride, along with 3 other Illinois Supreme Court judges, voted to strike down a legislative effort to place caps on the damages victims of medical malpractice might recover. Just as similar legislation had been struck down on two similar occasion. So the ILCJ is targeting Kilbride.
But their ads don’t mention the issues they are really pushing – like the gutting of the Illinois civil jury trial system. According to ILCJ spokesman Ed Murnane, “Med mal and tort reform are not the kind of thing that voters pay attention to.”
So, what does the ILCJ do? Taking a page from the Karl Rove playbook, it makes a bunch of wild, misleading charges. Involving criminal law – an area in which the ILCJ has little interest and less expertise. How many of the corporate fat cats at the ILCJ have ever effectuated an arrest? Prosecuted a felony? Presided over a rape trial? Not many.
So it appears the ILCJ is a group that a) makes misleading ads b) about something they know little about; c) on a subject that really doesn’t interest them. Not much justice in that particular League.

TEXAS CHEERLEADER BOOTED OFF SQUAD - HER CRIME? SHE DIDN'T CHEER FOR JOCK ACCUSED OF SEXUALLY ASSAULTING HER - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw a fascinanting article in the November 8, 2010 Sports Illustrated , written by Selena Roberts. Ms. Roberts details how a Silsbee, Texas high school cheerleader was kicked off the cheerleading squad. Her crime? She didn’t cheer for an athlete that she claimed had sexually assaulted her.
In October, 2008, the cheerleader, who is simply identified as H.S. in the article, was at a high school party. Beer was flowing, as it normally does at such parties. H.S. found herself in a room with three young men. Rakheem Bolton, age 17, Christian Rountree, age 18 and another boy, aged 16. The bedroom door was locked and H.S. was sexually assaulted. She screamed, the police were called and charges were filed. A therapist urged H.S. to continue her high school routine. The accused were barred from the campus, so she did so.
Unfortunately, in January, 2009 a grand jury decided there was not enough evidence to pursue criminal charges. So Bolton, a two sport star at the high school, was soon playing basketball again. And at Silsbee High School, whenever a Silsbee player is shooting free throws, the Silsbee cheerleaders shout his name. Bolton was fouled twice in the first half, and when her cheerleadering cohorts shouted his name, H.S. simply stepped back, folded her arms, and remained silent. H.S. was reprimanded at half-time.
The following Monday, H.S. was kicked off the Cheerleading squad. Her father protested the decision and was told H.S. either cheered for her attacker or she was off the squad. H.S. later filed a civil suit but the Fifth U.S. Circuit Court of Appeals ruled that her protest was not protected speech. H.S. graduated and plans on attending college.
Bolton ultimately pled to a lesser offense and is on probation and in anger management. He plans on starting college soon as well.

RECENT ILLINOIS CASE: NO DAMAGES FOR "BEING UNABLE TO SLEEP IN ONE'S OWN BED" DUE TO MOLD - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw this case while doing some research for a new client who suffered extensive damage to his condo…
The Illinois Appellate Court, Second District recently handed down a decision involving the damages available[or more accurately NOT available] to people displaced from their homes due to the actions of others. In Mayer v. Chicago Mechanical Services[CMS] the heating and air conditioning system in a condominium building had been installed by CMS. Two of the plaintiffs, Steve and Ann Mayer lived in one unit, while the additional plaintiffs, Kelly, Jeffrey and Emily Albrecht lived in the unit directly below the Mayers. Mold made both the units uninhabitable for a long period of time. The plaintiffs sued CMS as well as a number of other defendants. In their claims against CMS, plaintiffs alleged they inhaled fumes emitted by the mold, became sick and were displaced from their homes. On the eve of trial, pursuant to motions filed by CMS the plaintiffs were barred from presenting any evidence of inconvenience as a result of being displaced from their homes. Plaintiffs appealed, arguing they were indeed allowed to recover for being forced to leave their homes.
The Appellate Court first noted that whether damages for the discomfort and inconvenience of having to obtain temporary housing had never before been considered by an Illinois Court. The Court, after looking to other states for guidance, ruled that under the facts presented, there would be no relief for the plaintiffs. Although acknowledging that there are certainly logistical difficulties associated with temporary housing[lack of space; distance from employment, etc.] those difficulties were not the focus of plaintiffs’ case. Instead, plaintiffs were focused primarily on “… the abstract sense of satisfaction associated with one’s home” such as sleeping in one’s own bed or cooking in one’s own kitchen. The plaintiffs, the Court observed, advanced a theory of damages more rooted in sentimental attachment to one’s home instead of the actual out of pocket expenses or related costs associated with being suddenly and involuntarily uprooted. As a consequence, the Court ruled the damages sought were too nebulous to serve as a basis of an award. The trial court’s ruling was affirmed.
So, the lesson from this opinion is that in order to recover, plaintiffs should focus on the provable out of pocket expenses caused by having to live elsewhere.

CHICAGO TRANSIT AUTHORITY WINS SNOW AND ICE CASE - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Illinois Supreme Court recently heard a case where two long-standing principles of Illinois law were at odds. The clashing principles were the “common carrier duty” and the “natural accumulation rule”. The “common carrier duty” mandates that entities providing public transportation are to exercise the highest degree of care in the operation of their trains, buses and other property where passengers would be found. The “natural accumulation rule” basically provides that property owners have no duty to remove a natural accumulation of snow or ice.
In Krywin v. Chicago Transit Authority[“CTA”], the plaintiff, Marianna Krywin, a 76 year old nurse, was injured while exiting her train onto a Chicago Transit Authority train platform. Ms. Krywin alleged that the platform was icy and wet, and the CTA had made no effort to clear it, causing her to fall and break her leg. She sued and the case went to trial. The plaintiff argued that the CTA, as a “common carrier” had a duty to exercise the highest degree of care in the operation of its stations and failed to do so. The CTA, in response, argue that it had no duty to remove the offending snow and ice, as it was a natural accumulation. Additionally, the CTA argued that the plaintiff had presented no evidence that the snow and ice was unnatural. The CTA moved for a directed finding at the close of evidence, saying it was entitled to prevail, citing the natural accumulation rule. The trial court granted the motion, ruling the CTA had no duty to remove any natural accumulation, nor any duty to warn of any such accumulation. At the same time however, the Court ruled that the CTA, as a common carrier, had a duty to provide a safe place for the plaintiff to enter or leave the train. The jury was instructed consistent with the judge’s rulig and returned a verdict for plaintiff in the amount of $372,141.
The CTA appealed. The Appellate Court reversed, ruling that the CTA did indeed owe its passengers the highest degree of care, but, the natural accumulation rule trumped the CTA’s obligation to provide a safe place to enter or exit a train.
Plaintiff then sought some relief from the Illinois Supreme Court – but found none. The Supreme Court ruled that the natural accumulation rule did not take a backseat to the special duty owed by common carriers to their passengers. The Court explained that the CTA did not have a blanket immunity for falls on its property created by icy conditions. Instead, the Court commented that whether the CTA met its special duty to passengers was a question of fact for the jury. Sadly though for Mrs. Krywin, the Court ruled that she had failed to prove the CTA had breached that duty.
The practical effect of the ruling, notwithstanding the Supreme Court discussion, appears to give special recognition to the natural accumulation rule – thereby making recovery in snow and ice cases, already very, very tough, even harder.

THE END OF DROP-SIDE CRIBS - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

On Wednesday, the Consumer Product Safety Commission[CPSC] unanimously outlawed drop-side cribs, after dozens of infant deaths and massive recalls. The manufacture, sale or resale of cribs that have a side rail that moves up and down are now banned. The new standard, calling for cribs to have fixed sides becomes effective in June, 2011. Hotels and child care centers are to comply with the new standard as well, but will be given additional time to find replacement cribs.
The drop-side crib has come under intense scrutiny the last several years as defective hardware and assembly issues sometimes resulted in the partial detachment of the drop rail from the crib. When that occurred, small children could potentially get caught in the resulting gap[as pictured above] and suffocate. in the last 10 years, drop-side cribs have been directly implicated in the deaths of 32 infants and are suspected in a number of other cases. Since 2005 over 9 million drop side cribs have been recalled.

"FLEXIBLE PREMIUM" LIFE INSURANCE PRODUCTS NOT SO FLEXIBLE - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Recently retained by a client to go after a large surance company after one of their “investment advisers” sold her a “flexible premium multi-funded life insurance policy”. The premiums for these products can be very, very expensive. One of the ways they market them is to assure prospective clients that you can “suspend” payments and the premium will be taken out of the accumulated principal. All fine and good. But what isn’t explained to the client is a) that the product can’t be cashed out for many years and b) early withdrawl often results in enormous penalty costs.
So the scenario goes like this – buyer purchases product. Makes premium payments for years, then due to some unforseen cirumstance, has to suspend payments. They are taken out of the accumulated value. After some period of time the client sees the value of the investment dwindle substantially and tries to cash out. Only then does he or she learn that cash-out isn’t permitted until year 15. And if an early withdrawal is made, an enormous penalty will be assessed. So the client often ends up with next to nothing.
Client who just retained me had made hefty monthly premium payments for years. When her husband retired and money tightened up, they suspended payments for a year or two. Ultimately decided they wanted to cash it out and found out they couldn’t do so until year 15. And if they did cash it out, half the cash value would be eaten in penalties….
Ironically, the insurance company is the same exact company who sold the same exact product to some elderly clients of mine about 10 years ago. Ironically, it is even the same “investment adviser”. Looking forward to seeing him again…

A Blog Recommendation - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Every year, the American Bar Association publishes its list of the Best 100 Law Blawgs. Sadly my little blog has yet to crack the list. Perhaps next year…
But enough about me. I read the article this morning in court while waiting for the judge to grace us peon lawyers with his presence. One of the blogs on the list is the Namby Pamby, written anonymously by a lawyer here in Chicago. I took a look at it today – add it to your favorites. Some pretty funny stuff. The author characterizes his or her practice like this: “I get paid to dress pretty, go to court and talk to crazy people.” I can’t really relate to the dressing pretty part, but I did understand the part about talking to crazy people. Next time you are looking to kill some time, give it a look.

COOK COUNTY VERDICT UPHELD IN FALLING TREE BRANCH CASE - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Interesting case involving a falling tree branch was discussed in the November 16, 2010 Chicago Daily Law Bulletin . In May, 2003, Maria Ortiz, along with her husband and two children, was riding her bike on the north side of the City. The group somehow got separated, so Ms. Ortiz waited for her family on the 900 block of North Wilson. Strong winds were noted in the area that day. As Ms. Ortiz waited on the sidewalk, a very large tree limb from a Siberian Elm located on property nearby, snapped off, knocked over a street light and struck Ms. Ortiz. Ms. Ortiz ultimately needed several surgeries and reconstructive surgery.
Ortiz sued Jesus People, a not for profit group the owned the lot where the tree was situated. The case went to trial in 2009. Ms. Ortiz presented evidence that it was negligent to have a Siberian Elm located in an urban area, as that particular type of tree was known to be brittle. The defense argued that Jesus People never knew the tree was hazardous. A jury returned a verdict for Ms. Ortiz for nearly $700,000. Jesus People appealed, arguing that no Illinois Court have ever addressed whether a property owner should be liable for a tree accident when there is no prior notice that the tree presented a hazard.
The 1st District Appellate Court recently affirmed the verdict. The Court took issue with the defendant’s assertion that the issue had not been previously examined. The Court noted that at least one earlier decision held that property owners in urban areas have a duty of reasonable care to make sure trees on their land are safe.
Congratulations to attorney Josette Belvedere who represented plaintiff.

LEAKS IN YOUR NEW HOME?? ILLINOIS APPELLATE COURT CLARIFIES TO WHOM WARRANTY OF HABITABILITY EXTENDS - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw a recent Illinois Appellate Court opinion the other day clarifying who can be sued on implied warranty of habitability claims. In 1324 W. Pratt Condominium Association v. Platt Construction Group, multiple homeowners were suing the developer, Platt Construction. The homeowners had actually purchased the units from an unrelated developer. Platt never had any direct contracts with any of the owners.
After Platt finished the building in 2005, a serious water intrusion problem developed. Water leaked around around windows, doors, ceilings and vents both in the units and common areas. The structure of the building was damaged as were some personal items belonging to the respective owners. To make a bad situation worse, mold developed. The owners sued Platt, alleging, amongst other theories, breach of the implied warranty of habitability. The defendant moved to dismiss all counts and as to the breach of implied warranty count, argued it only extends to builders who are involved in the sale. The trial court granted the motion.
The plaintiff appealed the dismissal of the implied warranty count[as well as another court that I won’t get into]. The Appelate Court noted that the objectives behind the implied warranty are twofold – holding builders accountible and protecting buyers. The Court noted the warranty is applicable against a lessor OR builder of a unit where latent defects interfere with the ability to enjoy the property. Consequently the mere fact the defendant didn’t sell the units was irrelevant. The trial court ruling was reversed and the buyers were permitted to pursue that theory against the builder.

ILLINOIS APPELLATE COURT EXPLAINS THE "DELIBERATE ENCOUNTER" EXCEPTION - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Several months ago, the First District of the Illinois Appellate Court handed down an well-written opinion involving an injury resulting from wet asphalt. The case, Morrissey v. Arlington Park Racecourse, involved the injuries a young man suffered when he was injured while exercising some horses. The key facts are pretty straightforward – the Arlington racetrack park contains two tracks. The injury took place at a smaller track where horses are trained. The smaller track is a dirt track with two exits, an east exit and a west exit. The west exit layout makes it very time-consuming for riders to use. The east exit however, is close to the track AND close to the stables. Not surprisingly, the east exit was more attractive to riders on a tight schedule. The path from the track to the east exit is asphalt. Additionally, as horses are constantly being washed nearby, the path leading to the east exit is is often wet and slippery. The plaintiff, Quentin Morrissey, was injured when his horse stumbled and fell upon him as they were moving on the path to the east exit. He sued the racetrack, claiming the east exit path was unsafe due to the presence of water.
After discovery was completed, the racetrack moved to have the suit tossed. The defendant argued in part that the allegedly dangerous condition[the constant presence of water] was open and obvious and the plaintiff was well aware of it. The trial court granted the motion. Plaintiff appealed.
On appeal, the plaintiff conceded the water was indeed an open and obvious condition. But the plaintiff asserted that the “deliberate encounter” exception applied, allowing him to recover. The “deliberate encounter” exception to the open and obvious rule states that the landowner still has a duty to those lawfully on his property when the owner or possessor reasonably expects the guest will proceed to encounter a danger because the advantages of doing so outweigh the risk. The exception is taken from Section 343A of the Restatement[Second] of Torts. The key is whether the landowner can foresee his guests encountering the condition[despite it being obvious] even if alternatives are available. The focus is NOT on the actions of the person injured, but whether the landowner should have anticipated the actions of his guest.
The Appellate Court concluded that the defendant was aware that riders regularly used the east exit because of its proximity to the training track. The trial court’s decision was overruled.

ASBESTOS CASE LEADS TO IMPORTANT CHANGE IN HOW DISCOVERY DEPOS MAY BE USED IN ILLINOIS - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Berry v. American Standard case is tough to read. Howard Berry was diagnosed with terminal mesothelioma in 2003. In 2004 he filed suit against 47 different defendants, alleging that he was exposed to asbestos at their jobsites. Because of Berry’s failing health, his attorney sought to preserve his testimony by taking Berry’s evidence deposition[where a person’s testimony is recorded for use at trial at a later date]. The defendants all objected, insisting that they were entitled to get the Berry’s discovery deposition prior to any evidence deposition. A series of unfortunate delays occurred and the discovery deposition wasn’t completed for 5 months. At that point, Berry was in very poor health and died shortly thereafter. His evidence deposition was never completed. At that time, Supreme Court Rule 212 prohibited the use of a party’s discovery deposition as evidence at trial. The defendants moved for summary judgment, which was granted. The Appellate Court upheld the decision of the trial court. Justice Chapman, a member of the Fifth District Appellate Court filed a concurring opinion, where he frankly acknowledged that the legal system had failed Howard Berry.
Recently, Illinois Supeme Court Rule 212 was amended, and the Berry case was a significant factor leading to the amendment. As of January 1, 2011, a trial judge has discretion to permit the use of any discovery deposition[with the exception of a controlled expert]as evidence at trial, against any party who was at the deposition or given notice of the deposition, if: 1) the deponent is unable to testify at trial due to death or illness and 2) the deponent’s deposition has not been taken. Additionally, amended Supreme Rule 212 requires the Court to find that permitting the use of the discovery deposition as evidence will do substantial justice between the parties. Unfortunately, this amendment comes far too late for Mr. Berry, but will preclude any similar injustice in the future.

SOCIAL MEDIA AND COURTROOMS - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Some interesting news in the Winter issue of Litigation , the quarterly publication from the American Bar Association Section of Litigation. Seems like social media has indeed entered the courtroom. According to research done by Reuters Legal, going back to 2008, at least 45 verdicts have been challenged due to jurors twittering, blogging or using the internet. Perhaps more staggering – in the latter part of 2010, Reuters monitored Twitter posts and determined that people identifying themselves as either prospective or sitting jurors were posting every three minutes!! And a significant number of the posts had commentary on the defendant’s guilt or innocence.
Reuters investigative efforts triggered a complaint against a Seattle woman who was actively blogging while a member of a jury pool during a criminal trial. She had named the prosecutor “Mr. Cheap Suit” and described him as “annoying”. The defense attorney however, fared much better. She noted that that he was “friendly” and “cute” and indicated a desire to have lunch with him. She later was removed from the jury pool.

ILLINOIS ALCOHOL-RELATED INJURIES: LOOKING BEYOND DRAMSHOP - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Interesting decision recently handed down by First District Appellate Court in an alcohol-related death claim. The opinion, Hicks v. Korean Airlines Company, unfortunately, does not provide a comprehensive summary of the facts. It appears that on October 4, 2001, Tracy Kim, an employee of Korean Airlines Company attended a dinner with some other Korean Air employees. After the initial event, festivities continued at a second location. Kim attended the second event as well. While driving later that evening, Kim struck a car driven by Terrell Simmons. Both Kim and Simmons were killed.
Alfreda Hicks sued on behalf of Simmons. In Count II of the First Amended Complaint, Hicks sought recovery under a respondeat superior theory[alleging at the time of the occurence, Kim was acting in the scope of her employment]. In Count III, Hicks sued under the Illinois Dram Shop Act, 235 IlCS 5/6-21. The Illinois Dram Shop statute carves out the scenarios where persons injured as a result of another’s intoxication can recover against the entity that provided the alcohol. Recovery for alcohol-related claims beyond Dram Shop causes of action can be difficult. The Dram Shop claim made by Hicks was ultimately thrown out.
Korean Air sought summary judgment on Count II as well, asserting Kim wasn’t acting in the scope of her employment at the time of the crash. Korean argued that at the time of the occurrence, Kim was not going to, or coming from work. Additionally, Korean argued that at the time of the crash, Kim was not performing any work-related activity. The plaintiff however, produced evidence that the initial dinner was actually to entertain a Korean Air bigshot who was launching a new credit card linked to the frequent flyer program. Additionally, there was some evidence the second event was a Korean Air promotional event, paid for by Korean Air. Nonetheless, the trial Court ultimately granted Korean’s motion and Count II was tossed as well.
Plaintiff appealed the Trial Court’s decision to throw out Count II. The Appellate Court reversed the decision of the lower court. The opinion contains an exhaustive analysis of the relevant law[way too long to include here]. The Court acknowledged that the Dramshop Act broadly preempts claims arising from the provision of alcohol. But, the Court noted, the Dramshop Act does not preempt claims that are independent from the provision of alcohol. The Court found that the respondeat superior theory alleged by Hicks was independent of the Dramshop Claim. Again, although not entirely clear from the opinion, it seems the Appellate Court found a factual question existed as to whether, in light of the evening’s activities, Ms. Kim was acting in the scope of her employment at the time of the crash. The Appellate Court remanded the case back to the trial court for further proceedings. Kudos to Joe Klest and David A. Novoselsky, on a good result under tough facts.

ILLINOIS APPELLATE COURT CLARIFIES "OPEN AND OBVIOUS" IN PARKING GARAGE CASE - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Just noticed an interesting premises liability decisision handed down in November by the Illinois Appellate Court, Alqadhi v. Standard Parking . The plaintiff tripped and fell over raised concrete while leaving a parking garage. She suffered injuries to her knees. She alleged that the defendants failed to mark a 3/4 inch rise in concrete leading to a wheelchair-accessible ramp. Defendants moved to have the case tossed, arguing in part that the condition was open and obvious. In responding to the motion, plaintiff submitted the testimony of an expert who testified that the due to a failure to paint the area yellow, the ramp appeared flat. Additionally, the plaintiff testified the lighting was poor. The trial court however, agreed with the defense and tossed the case, noting the the raised area was open and obvious. The plainiff ultimately appealed.
The Appellate Court, in reviewing the “open and obvious doctrine” noted that where there is no dispute about the physical nature of the condition, the issue of whether it is open and obvious is one for the court. But, where a dispute exists about the physical nature of the defect, such as visibility, then a factual dispute exists and should be resolved by a jury.
The Appellate Court reversed, noting that the plaintiff testified the lighting was poor and that due to the absence of any marking the change in elevation appeared flat. Additionally, the Appellate Court noted the expert’s testimony that the lack of paint “disguised” the change in elevation. Consequently, the court found that there was a dispute abou the physical nature of the condition.
Additionally, the Court didn’t buy the defense argument that the defect was “de minimus” or too tiny to be actionable. The Appellate Court noted that even a minor defect may be actionable where there are aggravating factors, such as heavy traffic or distractions.

RETALIATORY FAILURE TO REHIRE??? - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Fighting yet another Motion for Summary Judgment in a retaliatory discharge case. My client, a nice young guy had worked for years with his employer. He suffers a legitimate back injury lifting a heavy hose[he was in a heavy labor job]. He is off work for a bit, and is eventually released, with some signficant lifting restrictions. Employer says he can basically work in a light duty job for a certain period, but if he doesn’t find another position within the company[consistent with his restrictions] within a finite period, he will be terminated. Additionally, the company is supposed to help him find another spot, but does absolutely nothing for him. Several HR people testify they typically help injured employees find other spots, but for some reason, just never got around to my client. Gosh, I wonder why? Of course he doesn’t land a job consistent with his restrictions, so they can him.
I file suit for him and after lots of depos, they move for summary judgment, arguing he was physically unable to do his former job. Which is true.
But, under Section 4(h) of the Illinois Workers Compensation Act, it is unlawful for the employer to ” …refuse to rehire or recall to active service in a suitable capacity an employee because of the exercise of hir or her rights or remedies granted to him or her by the this Act.”
In my client’s case, there is testimony from HR personnel that they usually helped people with restrictions find suitable spots in the company consistent with those restrictions. BUT…they didn’t make any such effort with my client. The failure to do so raises a legitimate fact question as to why the HR people didn’t help my client. The implicit explanation being that they didn’t help him because he had a comp claim pending. That will be my argument anyway. Hope the judge gets it.

SECTION 324: AN EXCEPTION TO THE ILLINOIS RULE THAT ONE CANNOT BE HELD LIABLE FOR FAILING TO PROTECT ANOTHER FROM CRIMINAL ATTACK - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

I am presently fighting a Motion to Dismiss in a horrible case that arose in a hospital. My client was was in the hospital for cardiac symptoms. After sedating my client with Morphine and rendering her unable to defend herself, a male nurse allegedly sexually asaulted her. [ I hate to qualify with “allegedly” but I was at a conference last night where a bigshot with the Illinois Attorney Registration and Disciplinary Commission told us to be careful with blog entries.] So better safe than sorry.
Back to the point. The Hospital has already succeeded in getting my first complaint dismissed, arguing that it is not liable for the criminal acts of an employee. Additionally, they argued, as defendants in these cases always do, that there were not on notice the nurse posed a danger. I filed a slightly modified Amended Complaint and of course they basically filed the exact same motion to dismiss, which will be argued shortly.
In doing some research, I stumbled across an interesting case that gave me a glimmer of hope. In Platson v. NSM America, a high school student took an internship position with a company and some scumbag allegedly sexually assaulted her. She sued the company, and of course the company moved to dismiss, arguing it wasn’t responsible for the plaintiff’s safety.
The Motion was granted and the plaintiff appealed. The Appellate Court said, Not So Fast, and ruled that the plaintiff did state a cause of action. Of particular interest to me was that portion of the opinion where the Court found a cause of action under Section 324 of the Restatement. Section 324 provides: “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking if …(b) he has undertaken a duty owed by the other to the third person” What does that mean in English? I’m not entirely sure, but I think it basically means: If Party A normally cares for an John Doe and, for whatever reason, Party B then assumes caring for John Doe,[knowing A usually does so] then Party B is liable if John Doe gets hurt…even if due to the criminal acts of a third party. Additionally, Party B doesn’t have to be on notice that John Doe might be in danger. Great language – now I have to figure out how I can use 324 to beat this motion. To be continued…

ILLINOIS SECURITY GUARD WHO CAN'T EXPLAIN FALL AT WORK LOSES WORKERS COMP CLAIM - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Illinois Appellate Court[4th Dist] recently issued an opinion clarifying when a worker can recover for an unexplained fall at work. In Baldwin v. The Illinois Workers’ Compensation Commission , the facts are pretty straightforward. Cathy Baldwin worked as a security guard. On October 8, 2006 she was working inside guard duty, which called for her to walk the area. She was descending a metal staircase when she slipped and fell. There was no defect on the stair. Ms. Baldwin could not identify what caused her to fall, but did testify that shortly before the fall she had walked through a freezer. She opined that moisture on her shoes may have caused her to fall. Ms. Baldwin later filed a Workers’ Compensation claim for the injuries she sustained in the fall. After a hearing, an arbitrator ruled that Baldwin had failed to prove she sustained injuries arising out of, and in the course of her employment. Her claim was denied.
Baldwin sought review of the Abitrator’s ruling before the Commission, but the arbitrator’s ruling was upheld. She then sought judicial review of the ruling.
The Appellate Court explained that in order for an injury caused by an unexplained fall at work to qualify as a Workers’ Comp claim, the employee must provide some evidence that supports a reasonable inference that the fall was due to a risk related to the employment. If the injury comes about because of a condition to which the general public is equally exposed, the injury does NOT arise out of employment. The Court went on to note that Ms. Baldwin did not present any evidence explaining what caused her to fall. The suggestion that moisture on her shoes from the freezer caused the fall, in the Court’s opinion, was simply conjecture. The Appellate Court ruled that Ms. Baldwin failed to prove that her injury arose out of her job and upheld the decision of the arbitrator.

JILL BIDEN - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

I was excited to see President Barack Obama sworn in as the 44th president on Tuesday. I was a big Obama supporter early on, when all the political types were saying it couldn’t be done. And I was impressed with his inaugural address as well. He wisely elected to dial down the inspirational content and instead focus on the serious challeges facing America.
In addition, I’m impressed with his decision to freeze White House wages and enact tougher lobbying restrictions. Sure it’s very, very early. But thus far, he seems serious about reforming the environment in Washington.
But enough about all that. Let’s talk, just for a moment about Jill Biden. America suddenly has, and I say this respectfully of course, a smokin’ VP spouse. I was doing some online research on Ms. Biden[would she be the Second Lady?]when I came across this Jezebel article about her reaction to some political types trying to drag Joe into the 2004 presidential contest. No idea if it is true or not. Doesn’t really matter – I just like the story.

ILLINOIS APPELLATE COURT SAYS "AS IS" NOT A DEFENSE IN FRAUD CASE INVOLVING SALE OF PROPERTY WITH BAD ROOF - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

There was an important decision recently handed down by the Illinois Second District Appellate Court involving the sale of property on an “as is” basis. In Napcor v. JP Morgan , the defendant was the trustee of a 72,000 plus square foot commercial building in Aurora, Illinois. Howard Preis, a member of defendant’s Trust Dept. was responsible for the real estate assets held in trust, and took over the management of the building. The building was targeted as one defendant wished to sell.
To prepare the building for sale, Paine/Wetzel, the broker for the building, provided Preis with an Inspection Report which showed the roof was absorbing water. The Report concluded the roof should be torn off and replaced. After reviewing several bids for the roofing work, Preis recommended that another roof be placed over the existing roof. Prewitt Construction did the work under the supervision of Glen Prentice. Prentice claimed he also told Preis the roof should be torn off but that Preis said a tear off was not in the budget. Prentice also claimed he told Preis reroofing would leave the structure vulnerable to wind damage. After the roofing work was done, the broker advised Preis of on-going roof leaks. Later Paine/Wetzel sent a letter describing a major roof leak was discovered during a showing to a client. Defendant then switched brokers and hired Frain, Camins & Swartchild [FCS]. During an initial meeting with the FCS, Preis was asked if the roof was a tear-off and indicated it was. Preis also approved a listing indicating the roof was a tear off.
In 1996, plaintiff Napcor submitted an offer for the building. The defendant countered and ultimately a deal was struck. A contract was drafted. The contract noted that the plaintiff was accepting the real estate in its “As Is” condition. Plaintiff inspected the building and found no evidence of any leaks. Plaintiff did not, however, retain a specialist for a roof inspection, claiming that it relied upon the listing showing a tear off had been recently done. A sale was consummated in 1996.
And, as predicted, the roof begins to shed. The first incident occurred in March, 1998. In June, 1998, another portion of the roof blew off. A third episode occurred in 1999. Aditionally, the roof continued to leak. Plaintiff sued for, amongst other things, fraudulent misrepresentation. At trial there was evidence that plaintiff had already paid $25,000 plus in repairs. Additionally an expert testified for plaintiff that proper repair of the roof would total over $2 million dollars. A jury concluded that there had been fraudulent misrepresentations and awarded plaintiff $1.2 million dollars in damages.
The defendant appealed, and as one of its arguments claimed the “as is” language defeated any claim for fraud. The Appellate Court however flatly disagreed. The Court concluded that defendants being sued for fraud cannot hide behind “as is” language in the real estate documents.

LAWSUIT RAISES QUESTIONS ABOUT COOK COUNTY JAIL - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

A federal lawsuit filed after the death of a young man at Cook County jail is raising a number of questions about how that facility is run. John Lambert[pictured below] was incarcerated in Cook County jail in June of 2007. Lambert had previously had some run-ins with law enforcement agencies, but they were all relatively minor. He was placed in a maximum security division of the jail. Lambert’s cellmate, David Jamison, had been in incarcerated for years, awaiting retrial of a rape conviction that had been overturned. Lambert was found unconscious in his cell with massive head trauma on June 26, 2007. He lingered for 12 days in the hospital and then died. A pathologist concluded that he had been beaten to death. Just days before the murder, other prisoners had observed Lambert and Jamison arguing. Given those facts, seems pretty clear that Jamison would be arrested and charged with murder. Nope.
In the fall of 2008, a Chicago Tribune article written by Gary Marx criticized the handling of the investigation into Lambert’s death. After the article appeared prosecutors re-opened the case. Finally, on Tuesday, February 11, 2009, Jamison was charged with the murder.
Lambert’s parents have filed a federal lawsuit against Sheriff Tom Dart and Cook County jail officials. The complaint alleges that paramedics failed to immediately respond to calls for help after Lambert was found in his cell. The complaint alleges that 90 minutes passed before Lambert was taken to the hospital and underwent surgery. The Lamberts are alleging that prompt action may have saved their son’s life. The Lamberts have also raised questions about why their son, a non-violent petty crime offender, was incarcerated with violent felons.
Jamison has denied any involvment, and gave a statement to investigators that Lambert was injured when he fell out of bed. An inmate with a cell near Jamison’s provided a statement that Jamison later boasted that he “…punched Lambert in the back of the head…and beat his brains in..”
Lambert’s death was just one of a number of examples in a 2008 Justice Department report that was critical of the level of violence at Cook County jail.

DON'T PUT YOURSELF IN HARM'S WAY IF YOU WORK FOR MCDONALD'S - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Dave Weiner commented on this story on the Huffington Post this a.m…
Nigel Haskett was working at a Little Rock, Arkansas McDonald’s last summer when he saw an individual physically assaulting a woman in the restuarant. Mr. Haskett immediately rushed to the woman’s aid and struggled with the scumbag who was assaulting her. Unfortunately, during the course of the struggle, Haskett was shot several times. As a result of his injuries, he has undergone multiple operations and incurred medical expenses of approximately $300,000.
Not surprisingly, Haskett went forward with a Workers’ Compensation claim against the fast food giant. McDonald’s however, has taken a very hard line. Ramsey, Krug, Farrell & Lensing, McDonald’s insurer, has notified the Arkansas Workers’ Compensation Commission that “…we have denied this claim in its entirety as it is our opinion that Mr. Haskett’s injuries did not arise out of or within the course and scope of his employment.”
In effect, McDonald’s is asserting that they pay Haskett to flip burgers, make fries and pour drinks, NOT to intervene in altercations in the restuarant. Apparently, the corporate policy is to call the police and let them handle the situation. Okay, but a customer, in the restuarant, is being assaulted by a man with a gun. The police aren’t around. With no regard for his own safety, Haskett jumps in, chases the bad guy outside and probably saves this woman’s life.
You would think McDonald’s would be thrilled that they have somebody like Haskett working for them. He risked his life to protect a customer. He’s a hero. Most companies would love to have somebody like that on the payroll.
And McDonald’s can’t seriously be worried about the $300,000. They’ve sold lots of burgers over the years – $300,000 is chump change.
Let’s hope this story gets some legs and McDonald’s is shamed into doing the right thing.

NO THANKS NECESSARY - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Wow, late winter cold kicked my ass. But thankfully on the mend…
The current American Bar Association Journal has a great article entitled “Lions of the Trial Bar” which features interviews with some of the elder statesmen of the American Courtroom. One of the lawyers featured, Richard Racehorse Haynes, is legendary for persuading Texas juries to absolve his clients of various heinous acts, including but not limited to murder. Haynes discussed how, back in the 1970’s, he used to have his client thank the judge and jury after the acquittal. One client apparently stood, looked at the jury and said:
“Ladies and gentlemen, I want to thank each and every one of you. And I promise, I will never, ever, do it again”
A few short weeks later, after yet another acquittal, Haynes’ client was about to launch into another heartfelt thank you, but didn’t get too far. According to the story, the trial judge interrupted.
“Don’t thank me, you little turd,” the judge said. “You an I both know you’re guilty”.
Haynes no longer has his client give thanks after an acquittal.

CITY OF CHICAGO PAYS $2.7 MILLION FOR WRONGFUL CONVICTION - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

A Chicago man will receive a $2.7 million settlement from the City of Chicago after being wrongfullly imprisoned for 27 years. In 1977, Paul Terry and Michael Evans[then both only 17] were prosecuted for the abduction, rape and murder of 9 year old child. They were both released in 2003 after DNA testing showed that the rape had been committed by someone else. They were then pardoned by former Governor Rod Blagojevich.
Evans sued the City and elected to go to trial with his case. The jury rejected his request for $60 million dollars.
The City of Chicago Finance Committee recently signed off on the $2.7 million dollar payout to Terry[pictured below] whose mental capacity had diminished while he was in prison. The only piece of evidence linking Terry to the crime was an identification by a female witness. Lawyers for Terry claimed that Area 2 detectives manipulated the witness and other evidence to secure the convictions.
Corporation Counsel Mara Georges admitted that the witness didn’t identify Terry until 10 months after the crime. In addition, Georges acknowledged that “…her mental capacity is declining a bit as she advances in age, so were weren’t sure what kind of witness she would make.”

NEGLIGENT HIRING IN ILLINOIS - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Recently retained by a woman to investigate her allegations that she was sexually abused while a patient at a local health care facility. It is not unusual in these cases that the corporate defendant moves to dismiss, arguing the any improper conduct on the parts of its employee was “beyond the scope” of the employee’s specific duties. [In fact, for a good example of an employer clinging to the “beyond the scope” see my February 23, 2009 post about McDonald’s].

In order to get around that defense, plaintiffs frequently include negligent hiring counts in the complaint. An action for negligent hiring or retention of an employee requires the plaintiff to plead and prove: (1) that the employer knew or should have known that the employee had a particular unfitness for the position so as to create a danger of harm to third persons; (2) that such particular unfitness was known or should have been known at the time of the employee’s hiring or retention; and (3) that this particular unfitness proximately caused the plaintiff’s injury. The third element, proximate cause, is typically the battleground in these cases. When proceeding under a negligent hiring theory, the proximate cause of plaintiff’s injury is the hiring or retention of the employee, NOT the wrongful act of the employee.
And the Courts of Illinois take a hard look at the proximate cause issue. In one case a cable installer sexually assaulted a customer in her home while on the job. The plaintiff filed suit and included a count for negligent hiring. The evidence revealed that an investigation into the employee’s background would only have revealed that he had a history of traffic violations. The Court ruled that knowledge about the traffic offenses would not have put the employer on notice that the employee might assault a customer. In another case, a bus driver sexaully assaulted a student while driving that student home. The parents of the child filed suit against the bus company alleging negligent hiring. That case was dismissed as well. The evidence showed that an investigation into the employee’s background would have only revealed a history of tardiness. The trial made a determination that there was logical relationship between that fact and the ultimate assault.
The case law seems to suggest that to prove the proximate cause element, some key facts will be necessary. First, one must show that the employee, prior to the employment had engaged in improper or violent acts. In addition, the plaintiff should plan on showing that the employee then engaged in similar acts while employed. Finally, the plaintiff should be prepared to demonstrate that the employer could have learned of the employee’s violent propensities if a proper investigation had been undertaken PRIOR to the employment. Not exactly an easy burden.

SUPREME COURT DOES THE RIGHT THING - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

On Wednesday, the United States Supreme Court upheld a multi-million dollar Vermont verdict, and in doing so preserved an important right for consumers – the right to sue drug manufacturers for injuries caused by defective drugs. The case that started it all began in Vermont in the year 2000, when Diana Levine[shown below] went to a clinic near her home complaining of a severe headache. She was given Demerol and an injection of Phenergan. The drug is usually given orally or through an IV drip. What Ms. Levine did not know was that there could be devastating side effects if the drug reached an artery. The maker of the drug, Wyeth, was however, fully aware of that fact. At least 20 other person had lost limbs as a result of the being given the drug prior to Levine.
Shortly after being given the injection[which apparently reached an artery]gangrene developed and Ms. Levine lost her right hand. Then she lost part of her right arm. She sued and settled against the clinic. She then brought suit against Wyeth for failing to warn consumers of the dangers presented by the drug. A Vermont jury agreed, and awarded her $6.7 million dollars.
Wyeth appealed, arguing that it had disclosed the risks to the Food and Drug Administration[FDA]which went ahead and approved the warning label. Wyeth argued that the FDA approval preempted the right of Ms. Levine to sue. Wyeth’s preemption argument was made possible by the recently departed Bush administration. Three years ago Bush and his co-horts reversed a long-standing FDA policy by announcing that FDA approval of a drug barred any suit against the manufacturer.
The Supreme Court however, shot the Bush preemption doctrine down. The opinion noted that Congress had regulated drugs for many years and had never barred consumers from suing drug manufacturers. In addition, the Court also noted that lawsuits like those filed by Ms. Levine exposed dangerous drugs – thereby making the market safer.
Every consumer should thank Ms. Levine for staying the course these nine long years. If the case had gone the other way, tens of thousands of consumers pursuing cases in the courts for injuries suffered because of defective drugs would have been out of luck.

$20 MILLION DOLLAR SETTLEMENT FOR CHILD INJURED IN FALL AT BURGER KING - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Recently saw an interesting article about a multi-million dollar settlement resulting from devastating injuries suffered by a little boy at a Burger King restuarant in Southern California. Back in August of 2005, Jacob Buckett,[pictured below, before the incident] then only 8, accompanied his dad and younger sister to lunch at a Burger King in Temecula, California. The particular restuarant they chose had an attached play area, with a jungle gym[known as “soft-contained playgrounds” – like the one in the photo above]. Jacob went to play on the Jungle Gym and climbed up one of the horizontal support poles. He lost his balance and fell, cracking his head on the tile floor.
Jacob suffered a traumatic brain injury which kept him in a coma for two months. He was hospitalized for a full six months. The brain damage he suffered left him partially paralyzed and with severe emotional and cognitive defects. Although Jacob is now 12, he has the maturity level of a 6 year old.
Jacob’s parents sued, claiming that the franchise owner, The Breckenridge Group, and the parent company, Burger King, knew the Jungle Gym was dangerous, but didn’t address the problems. Specifically, the Bucketts argued that the play area lacked “no-climb netting” and floor padding. They further alleged that the defendants were on notice about these defects because of previous incidents. The Bucketts also alleged that the owner of the franchise, failed to post warning signs and refused to retrofit the structure.
The article suggested that the defendants in their responsive pleadings suggested the Jacob’s father was at least partly responsible for failing to properly supervise the child. That assertion was neutralized by videotapes showing numerous children misusing the equipment on a regular basis prior to Jacob’s accident.
The parties settled the case for $20 million, which will pay for enormous and on-going medical bills, rehabilitation therapy and 24 hour attendant care for Jacob.

MORE RECALLS FOR SIMPLICITY BRAND - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

According to a April 8, 2009 item in the Chicago Tribune , about 25,000 playpens made in China and imported by Simplicity Inc. and SFCA Inc. have been recalled. The playpen in question is known as the “Travel Tender Play Yard”[shown below]. The playpens are portable and feature a bassinet, along with a changing table. The specific defect involves a series of rails that can collapse unexpectedly, causing children to fall or become entrapped. The playpens were sold in Burlington Coat Factory stores and online at Babiesrus.com, Target.com and Kohls.com from March, 2005 through January, 2009.
The Consumer Product Safety Commission[CPSC] has initiated a recall after becoming aware of at least 5 incidents where the rails collapsed. Thankfully, no injuries have been reported. Nonetheless, the CPSC is recommending that consumers should stop using the playpens immediately and return them to the place of purchase for refund or replacement.
This isn’t the first time Simplicity products have been the subject of recalls. In September, 2008 the CPSC had come under fire after failing to take appropriate action after becoming aware that two infants had died when the Simplicity Bassinet in which they were situated collapsed. The CPSC did issue a recall for the Simplicity brand items. Turns out however, that the exact same bassinet was being sold by a different company under a different name. Despite being so advised, the CPSC failed to issue a recall for those bassinets.

FRIENDS OF CAR THIEF OFF THE HOOK - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Interesting decision, Johhnson v. Bishop , just came out of the Third Appellate District Court speaking to the issue of the duty owed by vehicle owners when ne’er-do-wells steal their cars.

First, a brief rundown of the players. Robert Sonnemaker and David McLeod were roommates. Sonnemaker owned a Ford Taurus. Although not entirely clear, it appears that both Sonnemaker and McLeod had keys to the Taurus. One of the roommates allowed a Thomas Bishop to crash at their apartment. Mr. Bishop, it appears, was both homeless and a fan of crack cocaine. McLeod had previously allowed Bishop to use the car on several occasions. On the evening of December 3, 2005, the Ford Taurus was parked near the apartment. McLeod retired for the evening and although not entirely clear, it appears Sonnemaker did as well. When they retired, Bishop was still present in the apartment. You can probably guess where this is headed…
Bishop somehow gets the keys to the Taurus and decides to take it for a ride. Unfortunately, part of that ride included a collision with a vehicle driven by Todd Johnson. Johnson sued Bishop, Sonnemaker and McLeod. Johnson alleged that Sonnemaker and McLeod failed to prevent Bishop from getting the car keys and, thereby ultimately caused the collision. Sonnemaker and McLeod moved to dismiss those counts and the trial court did so.
On appeal, the Appellate Court noted that generally, Illinois Courts have held that no duty exists to a third party injured by a defendant’s stolen vehicle without showing special circumstances making the theft foreseeable. The Court went on to note that in order to state a claim the plaintiff had to show 1) the defendants committed some act which made the keys accessible to the person who stole the car and 2) that it was foreseeable that the car would be stolen. The Court found that the plaintiff failed to show how either Sonnemaker or McLeod had done anything to make the keys more accessible to Bishop. Furthermore, the Court found that there were no facts to suggest theft of the car was foreseeable. The trial court’s ruling was affirmed.

CTA NOTICE PROVISION REPEALED - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Finally, the Illinois legislature has done away with the ridiculous Chicago Transit Authority [CTA] notice provisions!!! Prior to June 1, 2009, anyone wishing to sue the CTA was obligated, pursuant to 70 ILCS 3605/41, to file a very specific Notice[often referred to as the “Section 41 Notice”]. The Notice was to be provided to the Secretary of the Transit Board, as well as the Office of the General Counsel of the CTA. The Notice was to include certain information, including, but not limited to the date and time of the occurrence, as well as the precise location of the occurrence. If the information provided in the Notice was in any way incorrect, the old statute provided that the trial judge had to toss the case – even if the mistakes were of a technical nature, with no impact on the actual merit of the case.
But no more!! On Monday, June 1, 2009, Governor Quinn signed Senate Bill 84[CTA Section Notice Repeal] into lawl Senate Bill 84 is now Public Act 96-0012. It should be noted that the repeal only applies to causes of action accruing on or after the effective date of the the Act – June 1, 2009. The Statute of Limitations against the CTA remains one year.
Kudos to bill sponsor Senator Ira Silverstein and Representative Al Riley.

LAWYER CAN'T SIGN RULE 216 REQUEST TO ADMIT FOR MISSING CLIENT - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The First District Appellate Court recently handed down an opinion precluding lawyers from signing Requests to Admit responses for their clients, even if the client can’t be found. In Brookbank v. Olson , counsel for the plaintiff, Lauren Brookbank, served Requests to Admit regarding the reasonableness of Ms. Brookbank’s medical bills on the defendant, Katie Ann Olson. Under Illnois Supreme Court Rule 216, a party may serve another party with a list of facts seeking admission of those facts. The concept behind the Request to Admit is to narrow the roster of contested issues. The party [i.e. the client] served with a Request to Admit Facts must respond within 28 days, with a signed statement denying the the matters for which admission is sought, or setting forth in detail the reasons he cannot truthfully admit or deny those matters. If the served party fails to do so, the matters set forth in the Request are deemed admitted. Brookbank’s lawyers issued the Request to Admit in an effort to have the reasonableness of the medical bills admitted before trial. If they were admitted, then the bills could simply be introduced at trial with no foundation necessary.
Olson’s attorneys, hired by her insurer, advised the Court they could not find their client, even after they sent an investigator out to look for her. Brookbank’s counsel then moved to have the matters deemed admitted, but Olson’s lawyers asked the trial court if they could sign and verify the request for their client. The Court allowed them to do so, but then directed that the issue of whether lawyers could sign for their clients be reviewed by the Appellate Court.
The Appellate Court reversed the trial court. The Court noted that the plaint language of Rule 216 calls for the sworn statement to be made by the party. The Court noted that without any client contact, the attorney’s sworn statement is meaningless, as there is no indication the party signed off on the responses. The defendant did raise a good point – most clients have no idea about the reasonableness of medical bills and would have to rely on their attorney. The Appellate Court acknowledged that the ruling would leave lawyers faced with a Request to Admit in a tricky position if they can’t locate their client. That issue however, they decided to leave for the Illinois Supreme Court to decide. As it stands now, lawyers can’t sign for their clients.

FORMER CFO SUES MOTOROLA - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Wow. A recent Chicago Tribune by Wailin Wong detailed how a corporate marriage can go bad. Very bad.

By way of background, in early 2008, Motorola, hired Paul Liska as the new Chief Financial Officer. Motorola’s flagship mobile phone unit, which once was on the cutting edge with innovations like the Razr cellphone, had taken on water and needed to get back on track. The plan was to separate the mobile phone division from the other Motorola business groups. The thought was that Liska’s background as a corporate dealmaker would prepare Motorola for the eventual separation of the phone unit.
Things apparently came to a boil in January of 2009. An important meeting was scheduled for January 28, 2009. Liska was to make a presentation at that meeting. According to Liska, he was concerned that certain Motorola financial forecasts were flawed and that Motorola had limited credibility with credit ratings agencies. Liska claims he shared those concerns with CEO Greg Brown prior to the presentation. At the January 28, 2009 meeting, Liska included those concerns in his presentation.
The next day, January 29, 2009, Lisak was shut out of a scheduled board meeting. That same day CEO Brown advised Liska that he was being replaced. And now the fur has begun to fly. Liska has filed suit against Motorola for retaliatory discharge, alleging that he was fired for attempting to bring his concerns about the flawed financial forecasts to a Motorola audit committee. Motorola, for its part, claims that Liska misrepresented his presentation to Brown and that his conclusions were misguided. In addition, Motorola claims that Liska had not been keeping abreast of the mobile business operations.
Recently unsealed court documents and filings provide some additional details on a business marriage gone bad. There was, according to Motorola, jealousy. Motorola alleged that Liska was jealous of the compensation package enjoyed by Chief Executive Sanjay Jha. Motorola additionally claims that as a result of that jealousy, Liska developed a “vendetta against Dr. Jha and the Mobile Business Devices business”. And, according to Motorola, there was pettiness. Liska failed to prepare for meetings and acted “abrasive and dismissive”. [I was under the impression that titans of commerce were supposed to be abrasive and dismissive – you know, like Donald Trump].
I suspect there will be further interesting revelations as this one winds it way through the litigation process.

WRONGFUL BIRTH DECISION - PARENTS CAN RECOVER DAMAGES EVEN AFTER CHILD TURNS 18 - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Illinois Appellate Court[First District] recently released the Clark v. Children’s Memorial Hospital decision, which clarifies what parents may recover in a “wrongful birth” case. “Wrongful birth” refers to the claim of parents who allege they would have avoided conception, or terminated a pregnancy but for the negligence of those charged with genetic counseling as to the likelihood of giving birth to an impaired child.

In the Clark case, the plaintiffs, Amy and Jeff Clark had a son, Brandon, in 1997. At 15 months of age, Brandon began showing signs of developmental problems, including poor head growth and difficulty walking and talking. In 2001 Amy sought genetic counseling from Dr. Barbara Burton to determine if Brandon suffered from Angelman Syndrome – a disorder caused by the abnormal function of the gene UBE3A , located in a small region of chromosone 15. In about 80% of those with Angelman syndrome, this small region is deleted from the maternally derived chromosone due to a mutation.
Dr. Burton informed Amy that all known genetic mutations for Angelman Snydrome in Brandon had been ruled out. That information was incorrect – in November, 2000, an analysis of Brandon’s DNA had been done at Baylor College of Medicine. The analysis showed that Brandon did indeed suffer from Angelman Syndrome. Siblings of children with the mutation of the UBE3A gene[like that shown in Brandon] have a 50% risk of being borne with Angelman Syndrome.
Dr. Burton never obtained the Baylor College of Medicine results, and never informed Amy that Brandon did suffer from Angelman, due to the UBE3A mutation. As Dr. Burton incorrectly advised Amy that all known genetic mutations for Angelman Syndrome in Brandon had been ruled out, Amy planned to have another child.
On Marcy 27, 2002, Amy gave birth to another son, Timothy. In June, 2002, Amy had some concerns regarding Timothy’s development. In September, 2002, Amy contacted Dr. Soma Das at the University of Chicago to discuss Timothy’s symptoms. Dr. Das indicated that Timothy and Brandon should be entered into a study of Angelman syndrome, but that boys could not enter without a complete set of Brandon’s records. Shortly thereafter, Amy contacted Baylor College of Medicine to get Brandon’s records. On September 30, 2002 she learned for the first time that Brandon’s UBE3A analysis was not normal. Subsequently, Timothy was diangosed with Angelman Syndrome.
The Clarks filed suit ffor wrongful birth, seeking damages for the extraordinary costs of caring for Timothy during his minority, and when he became of age. In addition, they sought recovery for lost wages. The trial court determined that plaintiffs could only recover damages for the extraordinary costs for caring for Timothy until age 18. The plaintiffs then appealed that decision. After a careful review of the relevant caselaw, the Appellate Court ruled that the plaintiffs could plead a cause of action for wrongful birth to recover damages for the extraordinary costs of caring for the unemancipated, disabled child beyond the age of 18.

SPERM A PRODUCT? - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The July, 2009 ABA Journal recently had a blurb about an interesting ruling from a federal court judge in Philadelphia. Donna Donovan went to Idant Laboratories in New York to purchase sperm in order to have a child. [Didn’t know you could purchase that item]. In any event, after the purchase, Donna gave birth to daughter who is mentally disabled. Donna sued Idant, on behalf of her child, claiming that the sperm she purchased was defective, as it contained a genetic defect known to cause mental impairment and other problems.
Judge Thomas O’Neill recently ruled that Brittany’s mother could sue Idant on both a product liability and contract theory. Judge O’Neill held that the a contract was created between Donovan and Idant in New York. In addition, he found that Idant’s screening of the semen also took place in New York. Consequently, New York law would apply to Donovan’s claims.
O’Neill’s ruling was particularly critical as to the products case. New York, unlike many other states, does not have a broad “blood shield law” excluding providers of sperm from product liability actions.
According to New York University law professor Mark Geistfield, O’Neill’s decision is the first to hold that semen is product subject to strict liability.
Idant has filed a motion to reconsider.
The Journal’s article, written by Mark Hansen includes an interesting graphic – a bunch of men lined up in front of a “DEPOSIT’ sign. Nice.

SOLOS AND SMALL FIRMS LOOKING FOR BUSINESS ON craigslist - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw another story in the July, 2009 American Bar Association Journal worth noting. Solo and small firm lawyers are getting creative in how they seek business. Many are now turning to craigslist as a practice-building tool.
Craigslist is an enormous classified advertising website, featuring ads from throughout the United States, as well as some outposts in Europe. And it includes a legal services section that is getting increasing traffic from lawyers looking to snare web-savvy clients. According to the article, written by Ed Finkel, the Chicago site had over 100 attorney ads posted on a single day in April, 2009.
Jonathan Stein, an Elk Grove, California solo, has been posting on the site for three years. Stein claims that he gets 5-10 calls a week from his ad, and claims 80% of those calls actually translate into work. Stein admits however that there is a learning curve. “It does take a little while to figure out how to use it effectively. I probably spent my first six months getting a lot of garbage phone calls.” Stein is a believer though – claiming that he only spends 10 minutes per week on his ad and that the return on his investment is “immeasurable”.
The article also mentioned Susan L. Beecher, a solo practicing in Kent, Washington. Ms. Beecher’s practice includes family law and she began posting ads on craigslist about a year ago. Since that time her ads have brought in 25-30 clients.
If you are looking to advertise on craigslist, you need to mindful of their rules. The site does not allow more than three ads within 48 hours, and lawyers can’t place ads in multiple cities. Stein warns not to trifle with craigslist devotees. “The hard-core craigslist users will flag your post if they don’t like it and then your posts start disappearing. They get offended if they think you are spamming the list.”

ILLINOIS CAR MOGUL SUES FOR ALIENATION OF AFFECTION - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

According to an article by Abdon M. Pallasch in todays Chicago Sun-Times , Bob Rohrmann,
the owner of 26 Honda, Toyota and Lexus automobile dealerships in Illinois and Indiana, is suing a plastic surgeon who carried on an affair with his wife for “alienation of affection.” Rohrmann[famous for his signature roar at the end of commercials] and his third wife Ronda, were married in 2002. They had met at the Rohrmann’s Oak Brook Toyota dealership.
At some point after the marriage, Rohrmann saw some emails that had been exchanged between his wife and the surgeon. He concluded they were having an affair and filed for divorce. The couple reconciled, but several months later Rohrmann again spotted some suspicious emails between his wife and the surgeon. Not long thereafter, Ronda Rohrmann filed for divorce.
In response, Rohrman filed his “alienation of affection” lawsuit. These types of cases are not the easiest to prove. Rohrman will have to demonstrate: 1) that his soon to be ex-wife did in fact have love and affection for him; 2) overt, wilful acts on the part of the surgeon which caused Rohrman’s wife to lose her feelings for Rohrman and 3) actual damages. The question becomes whether the fondness Ms. Rohrman had for her husband simply died on the vine, or was spirited away by the plastic surgeon.
Some lawyers don’t place much stock in alienation cases, saying they are nothing more than an means to harass a former spouse’s new love. Rohrman’s attorney, Enrico J. Mirabelli, however, indicated that under the right circumstances, alienation cases have their place. Mirabelli noted that “If you play in a lion’s den, you’re gonna get mauled”. [Excellent use of the whole lion/roar theme by Mr. Mirabelli].
Ironically, Rohrman has indicated he would still like to reconcile with his wife.
Eric Zorn of the Chicago Tribune, did not have a favorable impression of this lawsuit, as noted in his blog, Change of Subject.

SPONGE LEFT IN BODY - DOCTOR NOT LIABLE - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Interesting opinion, Forsberg v. Edward Hospital , just came down from the Illinois Appellate Court, Second District. The plaintiff alleged that she underwent a lumpectomy on June 4, 2004 at Edward Hospital. The surgeon was Dr. Piazza. Two incisions were made – one near the armpit and one near the left breast. During surgery, sponges were used, and one was inserted into the surgical wound. Near the end of the procedure, a nurse advised Dr. Piazza that all sponges had been collected. As a result he closed and the procedure was completed.
Dr. Piazza saw the defendant on several occasions after surgery. When he felt the armpit incision was not healing, he scheduled a follow-up procedure. On July 30, 2004, during the second procedure, he discovered the sponge and removed it.
The plaintiff sued both the doctor and hospital. The hospital settled their case with the plaintiff. Dr. Piazza brought a motion for summary judgment, contending that the plaintiff had failed to disclose expert evidence that a deviation from the standard of care had occurred, as required by Illinois law. The plaintiff, in response, argued that no expert testimony was necessary, because of “common knowledge” exception to the rule requiring expert testimony in a med mal case. The “common sense” exception basically says that under certain circumstances, a juror knows, without any help from an expert, that a doctor has screwed up. And plaintiff arged that jurors would know that leaving a sponge inside a body is a breach of the standard of care. Must admit, at this point in the opinion I thougth plaintiff was in good shape. Not so fast.
The Appellate Court agreed that the “common knowledge” exception had been applied when sponges were left in the patient’s body. In another 2008 decision, Willaby v. Bendersky, the Court held that even without expert evidence, a sponge left in a body established a prima facie case of medical negligence – BUT the defendant still gets an opportunity to explain just how the sponge got there. In other words, the presumption that the defendant is negligent created by the simple presence of the sponge can be rebutted.
In Ms. Forsberg’s case, the Appellate Court noted that the doctor reasonably relied upon the nursing personnel[employees of the hospital] in assuming all sponges had been collected. The Appellate Court affirmed the trial court’s decision to grant summary judgment on behalf of the doctor.
Much as I hate to admit it, this is a well-reasoned opinion.
[As an aside the plaintiff did offer some other arguments apart from the “common knowledge” angle. Those arguments, which are too boring to explain in an already lengthy post, were not convincing to the Appellate Court].

RED LETTER DAY! - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Good day today. It appears that I am finally wrapping up a retaliatory discharge case that has seemingly been going on forever. Plaintiff agreed to accept a settlement and the releases are finally signed, sealed and delivered. Would love to provide additional details, but the settlement is confidential.
And, Mark Buerhle of the White Sox throws a perfect game against the Tampa Bay Rays!! He is only one of 6 pitchers in the history of baseball to own two no-hitters. Hats off to the best pitcher in Chicago.

YET ANOTHER SIMPLICITY CRIB RECALL - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Got wind of this recall from the good folks at Kids In Danger, who work hard to keep kids safe and keep a close eye on this kind of stuff…
Seems like yet another problem has surfaced with Simplicity Cribs. On July 2, 2009, the Consumer Product Safety Commission[CPSC] announced a voluntary recall of Simplicity Drop Side Cribs. The cribs were distributed by Simplicity Inc, and SFCA of Reading, Pennysylvania. Apparently both companies have suspended day to day operations. A picture of the hazard created by the defect, is available below [in an absurdly large size because I don’t have the slightest idea how to reduce these things].
The specific hazard involves the crib’s plastic hardware. The hardware can break or deform, leading the drop side of the crib to detach. When the drop side detaches, a space is created between the drop side and the crib mattress. Small children can get themselves stuck in the space, leading to suffocation.
The CPSC is aware of one death involving an 8 month old child in Houston, Texas. The child became entrapped and suffocated between the drop side and the mattress when a plastic connector on the drop side broke. CPSC is also aware of another 25 incidents where the drop side improperly detached from the crib. Thankfully no injuries were reported.
Additional information is available via the actual recall notice.

NO END IN SIGHT IN LISKA LAWSUIT AGAINST MOTOROLA - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Looks like former Motorola CFO Paul Liska is going to be at war against his former employer for some time. Liska is suing Motorola, claiming he was fired for his refusal to accept allegedly misleading financial projections by the Motorola Mobile Phone Division. Motorola, on the other hand, is claiming Liska tried to extort the company.
The two sides were back at it on Wednesday, July 8, appearing before Cook County Judge Allen Goldman. Both Liska and Motorola filed motions, seeking Judge Goldman’s help in having certain documents produced.
In addition, a local headhunter, Gregory Crecos, appeared on July 8 as well, objecting to certain requests made upon him by Motorola. Crecos, the founder of Gregory Michaels & Associates, was served with a subpoena by Motorola. Motorola wants Crecos to turn over documents relative to his dealings with Liska, going back to when Liska worked at Sears and other companies. In addition, Motorola is seeking documents relating to Motorola candidates, dating back to 2007. According to remarks Crecos made after Court, Motorola believes Crecos tipped Liska off that Motorola was looking to replace Liska. Crecos denies any impropriety.
All matters were continued to July 31.

STATE AGENCY SLOW TO DISCIPLINE DOCTOR - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

In the Sunday Chicago Tribune , Deborah Shelton has a great article about how the Illinois agency responsible for disciplining doctors is not aggressive enough. The agency in question, the Illinois Department of Financial and Professional Regulation[IDFPR] oversees a number of professions, including the practice of medicine. The article focused on one doctor in particular – Nicholas Caro, M.D., a Chicagoland ophthalmologist[eye doctor]. The article explained that since the early 1990’s, Caro has been sued nearly 50 times, with 29 of the lawsuits filed in the last decade.
Caro is affiliated the St. George Corrective Vision Center on West Peterson Avenue in Chicago, where he serves as the medical director. Specifically, Caro does Lasik surgery, a cosmetic surgical procedure where a laser is used to change the shape of the cornea, or covering located at the front of the eye. According to the article, Caro has performed 25,000 eye procedures in the last 25 years.
The chief medical prosecutor for the IDFPR, Lisa Stephens, recommended in an original complaint in March, 2008 that Caro’s medical license be suspended, revoked or otherwise disciplined. She further noted that Caro had “…committed acts and/or omissions which constitute gross negligence in the practice of medicine.” The complaint was amended in July and October to include the specifics from additional cases. Yet the IDFPR has yet to take any action against Caro. In fact, no hearing date has been set. Daniel Bluthardt, Director of the Department’s Division of Professional Regulation declined comment, but did note that “It’s not unusual for a case, from start to finish, to take as long as two years to resolve.” That may be. But Caro’s situation might call for a little more urgency. The guy has been sued for malpractice nearly 50 times.
When reached to comment on the article, Caro noted that a lot of doctors get sued, and indicated that other doctors who perform Lasik procedures have similar problems. Shelton checked with the Ophthalmologic Mutual Insurance Company which insures nearly one third of ophthalmologists currently practicing in the United States. She noted that 75% of ophthalmologists who have been practicing 25 years, have been sued – but not with the same frequency as Caro. Of that 75% most have 3 or less malpractice suits against them.
In fact, as noted in the article, Caro’s practice also attracted the attention of the federal government, back in 1997. At that time the Food and Drug Administration[FDA] said his clinic was using unapproved laser equipment in treating certain vision problems. The FDA removed the equipment from the practice. At the time the agency noted that “Such unapproved lasers pose a risk to patients because their use could potentially cause serious eye injury. The manufacturers and eye clinics had ignored prior warnings from FDA.”
The folks at the IDFPR by and large do good work. But there is no excuse for letting this particular case just churn through the system like any other case. Push this case to the front of the line and take whatever action may be appropriate with respect to Dr. Caro.

SECOND LAWSUIT AGAINST MILAN, ILLINOIS MCDONALD'S - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

There is now a second lawsuit on file against a Milan, Illinois McDonald’s, where several people were allegedly exposed to Hepatitis A. The most recent lawsuit was filed last week by the parents of a 16 year old boy who allegedly was at the restaurant on July 12 to return a job application. After doing so he apparently ate at the restaurant. He then became ill, had aches and pains, and was severely jaundiced. He was admitted to a local hospital and tested positive for Hepatitis A. Typically, Hepatitis A is caused by the ingestion of fecal matter. The disease is usually transmitted by close person to person contact, or ingestion of contaminated food matter.
A class action case is already on file against the restaurant on behalf of those members of the general public who may have been exposed.
The owner of the restuarant, Kevin Murphy released a statement last week indicating the Rock Island County Health Department has not confirmed the source of the outbreak, and that there may be several sources.

TEDDY KENNEDY DIES - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Teddy Kennedy lost his battle with cancer late Tueday night. The dissection and meaning of his life by the talking heads is now underway. Most of the coverage is fairly even-handed, and doesn’t omit the details of an occasionally troubled personal life. On Twitter, Carol Marin shared a great tribute she saw on the failed talkers blog. Certainly worth a read.

TWITTER AT YOUR PERIL - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Be careful what you say in your Twitter posts.

Just ask Amanda Bonnen. According to recent Chicago Sun-Times article by Lisa Donovan, Ms. Bonnen was a tenant in an Chicago apartment complex run by Horizon Realty Group. Some water leaked into her apartment, as well as some other apartments in March, 2009. The leaks occurred after a contractor working on the roof made some mistakes. Horizon claims they contacted all affected tenants to assess and correct any damage. Horizon also stated that all tenant grievances were quickly and amicably resolved. With the exception of Ms. Bonnen. Bonnen filed suit against Horizon on June 2, 2009, alleging violations of the Chicago Residential Landlord Tenant Ordinance. She moved out on June 30, 2009.
After Bonnen’s suit was filed, Horizon learned of a May 12, 2009 Twitter post by someone identified as Amanda Bonnen and using the name “abonnen”. The tweet in question noted, “Who said sleeping in a moldy apartment was bad for you? Horizon thinks its okay”.
On July 27, 2009, Horizon filed a libel lawsuit against Ms. Bonnen, claiming the post damaged the firm’s reputation. Horizon has not spoken with Bonnen about the post. Jeff Michael, whose family has run Horizon for 25 years, commented that “We’re a sue first, ask questions later kind of an organization”.

CONDO OWNER IN TOUGH SPOT - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Take a long hard look at that condo before you buy it. That is the moral of a recent Chicago Tribune article by John Bryne. The article focused on Dorothy Rush, an 86 year old woman who initially rented, and then purchased one of the condominium units at Village Centre, a 206 unit development in Mount Prospect. Rush thinks that water is seeping into the walls of her unit becuse of poor workmanship when the place was built in 2003. The mold she thinks is inside the walls irritated her eyes, throat and chest, eventually causing her to simply leave the unit.
And a 2007 assessment of the property by Raths, Raths & Johnson, an engineering firm, seesms to confirm Ms. Rush’s suspicion. It was the recommendation of Raths, Raths & Johnson that the entire brick facade of the three building development be rebuilt in order to prevent widespead leakage and stop mortar and masonry deterioration.
Apparently, Rush is not alone. Lots of folks who purchased units during the building boom in the late 1990’s are now having problems. Real Estate experts think that builders either 1) didn’t do a good job building or 2) simply ran out of money. Either way, condo owners are caught in the middle, without many options.
There may however, be some hope for future condo buyers. Representative Harry Osterman, [D, Chicago] recently sponsored House Bill 3955, which required builders to set aside a portion of the sale amount of the unit for repairs. Not suprisingly however, the bill met with stiff opposition from those in the building industry and it died in Committee. But the Association of Condominium, Townhome and Homeowners Association is vowing to continue fighting for legislation protecting the buyer in the next session.
As for Ms. Rush, she no longer lives in the unit and is paying to live in an apartment. She is reluctant to move possessions out of the condo as she is afraid they may be contaminated by mold. Ms. Rush is part of a lawsuit filed by the Condominium Association th against a variety of defendants, including the general contractor, developer and eight subcontractors. The Association is seeking $8 million dollars in damages. Presently the parties are in mediation.

GLAD TO SEE I HAVE BEATEN THE ODDS - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Back from vacation, stumbled across an interesting blurb at Law.Com’s Legal Blog Watch. According to an admittedly unscientific poll, 50% of law blogs fail in the first year. The explanation? According to the article, because lawyers simply don’t have the time to dedicate to providing content on a regular basis. We lawyers are apparently very busy.
But lack of time is far too simple an explanation. There is more to it. My thought is that lawyer/bloggers are too lazy to find that interesting article and bring it to the masses. Not me, no sir. In this blog you can read about 9 foot tapeworms and strippers. I make the effort because I care. Deeply.

SEARS TAKES A HIT - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Sears Roebuck & Co. recently agreed to a record settlement in an Equal Employment Opportunity Commission[EEOC] lawsuit alleging the retailer illegally fired disabled workers. The $6.2 million dollar settlement amount is the largest settlement for a disability-related case in EEOC history. The case arose from allegations made by John Bava, former Sears technician who was seriously injured after a fall at a customer’s home. Bava took took some time off under Workers Compensation, but was still disabled when he tried to return to work. Sears refused to reinstate him, or make accomodations for his disability. When Bava’s leave expired, he was terminated. EEOC lawyers indicated they uncovered 100 similar cases where injured employees sought accomodations upon their return, only to be terminated.
Sears issued a statement insisting that they reasonably accomodated employees and settled the case because of the cost of litigation. In other words, the tried and true “We are innocent but lawyers are just so damn expensive” explanation. Sears lawyers must be very, very expensive.

TOYOTA NOT HAVING A GOOD WEEK - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Toyota was recently hit with a couple of lawsuits that could spell VERY BIG TROUBLE for the company. First, former Toyota attorney, Dimitrios Biller recently filed a racketeering lawsuit against Toyota, alleging that his former employer concealed and destroyed evidence that should have been produced to lawyers representing people injured in rollover accidents. Biller claims the company regularly withheld data and allowed witnesses to testify the records did not exist. Toyota has called Biller’s allegations “inaccurate” and “misleading”. And then they promptly requested that the Court records be sealed.
But wait – there’s more. Shortly after Biller’s lawsuit was filed, a class action was filed in federal court in Los Angeles. The class action seeks to represent all plaintiffs who lost or settled cases where Toyota allegedly withheld evidence.
Biller’s allegations, if true, could have enormous repercussions for the company. First, there would be serious consequences for those persons who knowingly destroyed, and or lied about the existence of the records in question. Most judges in the United States take a rather dim view of that type of behavior. In addition, if there is merit to Biller’s claims, it is likely any defense verdict for Toyota in a rollover case can be attacked and possibly overturned. Additionally, lawyers who settled with Toyota in rollover cases will likely seek to vacate the settlements and seek significantly higher awards. Then there is the additional litigation expense, which will be staggering.
Finally, again, assuming the allegations are true, there are evidentiary questions which could lead to significant gastrointestinal discomfort for Toyota lawyers. First, if Toyota was aware of certain defects and did not address them, then there is the specter of punitive damages. In addition, if documents were destroyed or concealed, are those facts admissible? You can bet the plaintiffs’ lawyers will argue they are.
Yeah, this was definitely not a red letter week for Toyota.

TARGET HALLOWEEN FLASHLIGHT STARTS FIRE IN CHILD'S BED - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Scary story in the Chicago Sun-Times last week involving about a toy flashlight. Midlothian resident Brandi Pavoni had purchased the flashlight at Target for Emily, her three year old daughter. The flashlight included Halloween-themed stencils that could slip over the bulb and be projected onto a wall. The flashlights are depicted below.

Emily went down for a nap with the flashlight next to her. A couple of minutes later, Mom smelled smoke, rushed into Emily’s room and saw smoke coming from her bed. The bottom part of the flashlight, opposite the bulb, had melted and burned through the a pillow. Thankfully, Emily was not harmed.
The metal coil touching the battery became too hot and caused the casing to melt, even though the flashlight was switched off. A spokesperson for Target indicated that two models of the toy were pulled from shelves after Target received reports that the flashlight was overheating. Customers who purchased either model may return it to any Target for a full refund.

FUTURE PAIN & SUFFERING - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Read an interesting case today on the issue future damages. In Maddox v. Rozek , the First District Appellate Court of Illinois was faced with an issue involving future damages. Specifically, after a verdict for plaintiff in an auto case, the defense appealed, arguing that the jury should never have received an instruction on future pain and suffering because their was no expert[i.e. doctor]witness who testified that plaintiff would have problems in the future.
After surveying the law, the Court held that where future pain and suffering can be objectively determined from the nature of the injury, the jury may be instructed on future pain and suffering based solely on lay testimony. When future pain and suffering is not apparent based simply on the injury, or is subjective, the plaintiff is obligated to present expert testimony.
Bottom line? If your client doesn’t have a cringe-inducing injury[loss of an eye is an example cited by the Court] get an expert.

ILLINOIS BANS TEST MESSAGING WHILE DRIVING - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Illinois legislators recently added a new section to the Illinois Vehicle Code banning text messaging while driving. Under Section 625 ILCS 5/12-601.2, “… a person may not operate a motor vehicle on a roadway while using an electronic communication device to compose, send or read an electronic message”. The law becomes effective January 10, 2010.
Additionally, the legislature amended the Vehicle Code to bar the use of cell phones in school speed zones and construction zones. Pursuant to new language found in 625 ILCS 5/12-610.1[e], no motorist, regardless of age, may use a cell phone while driving in a school speed zone or construction zone. The amendment does carve out some exceptions. For example, it does not apply to construction workers engaged in a project in the construction zone. Additionally emergency responders, such as police, firemen and health care providers are allowed to use a cell phone for emergency purposes in a school or construction zone. The amendment also becomes effective January 10, 2010.

SUPREME COURT ALLOWS $83 MILLION DOLLAR VERDICT TO STAND AGAINST FORD - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

On Monday, the United States Supreme Court refused to hear an appeal of an $83 million dollar verdict against Ford Motors resulting from injuries suffered when a Ford Explorer rolled over. In January of 2002, Brennetta Buell-Wilson was driving an Explorer on a California highway. She swerved to avoid an object in the road and the vehicle rolled over multiple times. She was left paralyzed.
Ms. Buell-Wilson and her husband sued Ford in California, alleging the Explorer’s roof was defective and the vehicle was prone to rolling over. The jury returned an enormous verdict – $364 million dollars in total, with most of the award coming in the form of punitive damages. The jury’s verdict was likely driven in part by evidence they heard that the roof could have been strengthened on the Explorer model for $20 per vehicle.
The trial court and Appellate Court reduced the verdict, and in 2006 the Appellate Court set the verdict at $27.6 million dollars in compensatory damages and $55 million in punitive damages.
Ford’s appeal to the United State Supreme Court was only as to the punitive aspect of the award. Ford argued that the punitive damages were unfair as it had complied with industry and governmental safety standards. Ford was joined in its appeal by the United States Chamber of Commerce. The Chamber questioned the wisdom of allowing jurors to punish manufacturers for defective products.
The Supreme Court refused to hear the appeal, allowing the $83 million dollar verdict to stand intact.

BEWARE THE REQUEST TO ADMIT - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Putting the final touches on my response to a lengthy Rule 216 Request to Admit filed by the defendant. In reading some of the recent Illinois cases discussing what constitutes a proper response – came across some helpful information. It is NOT sufficient for responding party to simply claim a lack of knowledge as a reason for a failure to admit or deny. Instead, the answering party must make a reasonable effort to secure answers to Requests to Admit from persons and documents within the responding party’s reasonable control. Requests to Admit continue to represent enormous potholes for the unwary. For additional insight, see Szczeblewski v. Gossett (5th Dist. 2003) 342 Ill.App.3d 344, 277 Ill.Dec. 1, 795 N.E.2d 368

ILLINOIS SUPREME COURT OPINION A MAJOR ROADBLOCK FOR OLDER VICTIMS OF CLERGY SEX ABUSE - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Illinois Supreme Court recently handed down an opinion that poses a major hurdle for older victims of clergy sexual abuse. Separate and apart from the legal aspect of the opinion, the undisputed facts again demonstrate an appalling neglect on the part of the Church when faced with evidence they had an abuser in their ranks.
In Doe v. Dallas , the plaintiff was was sexually abused by Kenneth Roberts, a Catholic priest, in 1984. The plaintiff was just 14. At the time, he was an eighth grader at a Catholic school in Belleville, Illinois. Father Roberts was a guest lecturer at the school. Among his topics was sex education. Roberts was allowed to speak, even though church officials were aware he had previously engaged in the inappropriate sexual behavior on at least two occasions.
Roberts, a former flight attendant, was a prolific author, and well known in the Catholic community. His published works included books like Playboy to Priest and Nobody Calls It Sin Anymore . After hearing Roberts speak, plaintiff came to admire him and sought advice on how to become a priest. Roberts agreed to assist the victim, and then of course, abused him.
Plaintiff didn’t disclose the abuse until 1998, when acute psychological problems forced him to leave work. He filed his lawsuit in 2003. Roberts moved to dismiss, arguing that the allegations were time-barred. Roberts argued that the case was governed by 735 ILCS 13-202.2(1994) , which stated that in actions for sex abuse that took place before the plaintiff was 18, the case had to be filed within 2 years after the person abused discovered, or through reasonable diligence should discover the abuse. Roberts argued that as plaintiff disclosed the abuse in 1998, he had to file suit within 2 years of that date.
In response, plaintiff argued that his cause of action was governed by 13-202.2, as amended in 2003. The amendment provides that actions for sexual abuse must be commenced within 10 years of the 18th birthday or within 5 years of the date the person discovers (a) an act of childhood sexual abuse and (b) that an injury was caused by the abuse. Interestingly the amendment provided that it applied to all actions pending as of July 24, 2003, as well as all actions commenced after that date. Plaintiff argued that the suit was timely as it was filed within 5 years of when he first reported the abuse.
In response, Roberts argued that because plaintiff’s suit was already time-barred under the prior law before the amendment, allowing the lawsuit to be revived violated his constitutional rights. The trial court agreed with Roberts and dismissed the case. On appeal, the Appellate Court held the the amendment was to be applied both retroactively as well as prospectively – and reversed the trial court’s ruling.
The Supreme Court ruled that once a claim is time-barred, reviving it through subsequent legislation would offend the due process protection of the Illinois Constitution. The Appellate Court was reversed and the ruling of the trial court affirmed.
Attorneys involved in local and national sex abuse cases have suggested that victims in their 40’s may face a significant obstacle in seeking recovery as a result of the ruling.

NEVER THOUGHT YOU WOULD NEED TO REMEMBER RES JUDICATA? THINK AGAIN. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Recently read a decision from the First Appellate District that sends a clear message to lawyers electing to take voluntary dismissals – PROCEED WITH CAUTION!!!!
In Kiefer v. Rust-Oleum , plaintiff Colin Kiefer filed a complaint in the Circuit Court of Cook County against Rust-Oleum, an Illinois corporation. Kiefer, a resident of British Columbia, alleged that he was seriously injured when a can of aerosol spray paint sold by Rust-OIeum exploded. The incident happened while Kiefer was working for a company located in British Columbia. The complaint was in two counts, strict product liability and negligence. The case was then transferred to Lake County, pursuant to forum non conveniens motion.
While the case was pending, Rust-Oleum moved to dismiss, arguing that the law of British Columbia governed the claim, and British Columbia does not recognize the law of strict product liability. On November 5, 2003, the trial court agreed, and dismissed those counts based upon strict liability. Leave was given to plaintiff to file a second amended complaint. There was no reference to the order being “with prejudice” or “without prejudice”.
Kiefer ultimately did file amended pleadings, sounding in negligence. There were additional motions filed but plaintiff got past them. Just a few weeks before trial, plaintiff voluntarily dismissed his remaining negligence claims pursuant to 5/2-1009 of the Illinois Code of Civil Procedure.
In August, 2006, Keifer refiled his negligence claims in Cook County against Rust-Oleum and U.S. Can. Both defendants moved to dismiss, arguing the claims were barred by res judicata . The trial court agreed, and dismissed both counts “with prejudice” on September 28, 2008, applying the Supreme Court’s recent ruling in Hudson. Plaintiff appealed.
The Appellate Court first looked at the Hudson decision which held that where a plaintiff asserts multiple claims arising from the same set of operative facts in a single action and one of those claims is dismissed on the merits, res judicata will bar the plaintiff from not only refiling those claims but also any claims the could have been determined as part of that action.
The Court then considered, but dismissed Kiefer’s arguments that his claims were not barred – with some pretty broad language that trial lawyers should remember. Kiefer’s arguments that he was given leave to amend and that the order was not “with prejudice” made little impact. The Court noted that “…a trial court’s description of a final judgment as being “without prejudice” or “with prejudice” is not determinative. The Court emphasized that the res judicata impact of the November 5, 2003 order extends “…not only to every matter that was actually determined in the first suit, but also every matter that might have been raised and determined in that first suit.” Negligence claims could have been raised, and in fact were raised in the initial complaint. As a result, they were barred by res judicata
Moral of the story – res judicata is broader than you might think. Be afraid. Be very afraid.

ILLINOIS SUPREME COURT DELAYS OPINION ON MED MAL CAPS - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Last week the Illinois Supreme Court delayed the release of a long-awaited opinion dealing with the constitutionality of caps on damages in medical malpractice cases. The opinion in LeBron v. Gottlieb Memorial Hospital will rule on the constitutionality of the Illinois Medical Malpractice Act of 2005, which set limits on the amount of non-economic[i.e. pain and suffering]damages victims of medical malpractice can recover. The Act limits non-economic damages to $500,000 against doctors and $1 million against hospitals. No reason was provided for the delay, and no specific date was set when the ruling would be released.

CHICAGO JUDGE TOSSES TWITTER LAWSUIT - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

A lawsuit growing out of a Twitter post has been tossed by a Cook County judge. Last summer Uptown resident Amanda Bonnen filed a Twitter post commenting on her “moldy apartment”. Her landlord, Horizon Management Group Realty LLC got wind of the tweet and filed a libel lawsuit against her.
Bonnen’s attorney, Leslie Ann Reis argued that the comments in the Twitter post were simply Bonnen’s opinions. Judge Diane Larsen agreed, noting that “The Court finds the tween non-actionable as a matter of law.” Congrats to Bonnen and Ms. Reis.

SOME GOOD NEWS FOR TOYOTA - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

From the Department of Fair Play…

On September 2, 2009, I posted about Dimitrios Biller, the former Toyota attorney who filed a whistleblower lawsuit against Toyota alleging that the car manufacturer had concealed and destroyed evidence that should have been produced in rollover cases. Not long after Biller filed his lawsuit, a class action was filed on behalf of all plaintiffs who had lost or settled rollover cases where Toyota had allegedly withheld evidence.
According to an article at Law.com, and a tweet from Craig Niedenthal, there may not be much substance to Biller’s allegations. Lawyer E. Todd Tracy was allowed to review 9000 documents that Biller claimed supported his allegations that Toyota acted inappropriatedly in the rollover cases. Tracy represented a group of plaintiffs who had prosecuted cases against Toyota prior to Biller’s allegations. He was hoping the Biller documents would help him re-open those cases. Tracy remarked that “…I did not see any type of concealment, destruction, or pattern of discovery abuse that affected my cases that I sought to reopen.” Last week Tracy dismissed the lawsuit he had filed to resurrect the earlier cases.
A Toyota spokeperson said that Toyota was pleased that Tracy dismissed his action.

CONTACT SPORTS DOCTRINE DOES NOT APPLY TO ATHLETIC TRAINER STRUCK BY HOCKEY PUCK - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

On December 31, 2009, the Second Appellate District Court of Illinois released an opinion that I had been waiting for – reversing the trial court’s dismissal of the negligence portion of one of my cases involving a very serious eye injury. My client, a young guy was an athletic trainer at the time of his injury. He was loaned out to a local hockey team. He spent most of his time in an office in the back, only coming to the ice under very limited circumstances – attending to an injured player or filling water bottles in the bench area when the players banged on his door.
On the day of the injury, he heard some banging on the door and headed to the bench area. As he stepped into the bench he caught a puck in the right eye. The puck fractured bones under his right eye and resulted in permanent vision loss. I filed suit against the player involved and the team. After discovery, they filed a motion to dismiss the negligence counts under the “contact sports doctrine” [CPS]. The CPS doctrine basically says that participants in a contact sport may be held liable for injuries to coparticipants only for injuries caused by “wilful and wanton” conduct – which essentially means the defendant knew that a serious injury would occur. Under the CPS defendants are NOT liable for injuries from simple negligence. The trial court, to my dismay, granted the motion. The court’s order left me with only wilful and wanton counts against the defendants – which are very difficult to prove.
I appealed the dismissal of the negligence counts. More precisely retained the very capable Joanna Fryer to handle the appeal. And last week learned that the Appellate Court reversed the trial court’s opinion dismissing the negligence counts. The Appellate Court ruled that my client was not a participant in a contact sport, and consequently the CPS doctrine does not apply. The negligence counts are re-instated. Nice way to start the year – with an win in the Appellate Court.

CHICAGO AREA WOMAN STRIKES BLOW FOR WORKING MOMS - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Last week the Chicago Tribune ran an article by Ameet Sachdev on a sizable verdict recently handed down by the Chicago Commission on Human Relations. The case involved Dena Lockwood[pictured above] a working mom, who took a job with Professional Neurological Services in 2004. She paid a price because she was a parent. Lockwood’s commission rate was lower than other sales personnel who did not have children. She had a tougher time getting time off than her single counterparts. And Lockwood felt ignored in sales meetings. Then in 2006, she had to take a day off because her 4 year old was sick. Her manager fired her.
Lockwood elected not to go to court, but to file a discrimination claim against Professional Neurological with the Commission And she won – in a big way. In July the Commission ruled awarded her over $213,000, including $100,000 in punitive damages. In addition, the hearing officer has recommended that Lockwood’s legal team receive $87,000 in legal fees. Professional Neurological has indicated it intends to appeal the award.
Congrats to Lockwood and her attorney, Ruth Major.

NOLAN ON OPENING STATEMENT - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Kenneth P. Nolan writes a monthly column entitled Sidebar for Litigation, the monthly publication by the American Bar Association Section of Litigation. Mr. Nolan is a proud resident of Brooklyn, New York and a seasoned veteran of New York courtrooms. In my humble opinion his columns are the best part of Litigation. In his Summer, 2009 column[yeah, I’m a little behind in my periodical reading] he discussed Opening Statements. The entire column is worth a read. But I wanted to mention one of the points he made that I really liked.
Nolan, like many other trial attorneys suggests that you let a little argument seep into your Opening Statement. He notes:
The plaintiff has to tell the jury what he will prove. “The evidence will prove…” And what he wants. “At the end of the this trial, I want you to give a verdict for Mrs. Clark adn award her money damages..” Don’t be shy. If you want a boatload of dough, tell them. You don’t have to use numbers, but make sure they understand you will be asking for more than they’ll ever make in five lifetimes.
If you want the jury to toss the pathetic plaintiff and his wheelchair into the middle of Court Street, tell them. If the plaintiff was fired because he was a lazy, incompetent bum and not because of his race, religion or sex, shout it. In a refined way of course. If you don’t they may never know. Don’t wait until closing. It may be too late.
….The defendant should appeal to the jurors’ courage, fairness and common sense in peeking around and through the horrible injuries. American justice demands you award the plaintiff nothing. Enter judgment for my client Exxon because even large corporations that make billions and employ thousands deserve the same fair shake as you and me and all Americans.
His column alone makes the costs of Litigation worth it.

VERDICT AGAINST LOUISVILLE SLUGGER UPHELD - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Almost missed this story coming out of Montana…

Last week, a Montana judge refused to toss a jury verdict against Hillerich & Bradsby, the manufacturer of the Louisville Slugger baseball bat. In 2003, Brandon Patch, an American Legion baseball player was killed when he was struck on the head by a ball hit off an aluminum Louisville Slugger bat. Brandon’s parents sued in 2006, alleging the bat was “unreasonably dangerous”. In addition, they alleged that the manufacturer failed to properly warn of the dangers associated with the bat.
In October, 2009, a Helena jury returned a jury verdict for Brandon’s parents. The jury ruled that although the bat was not defective, the warnings were inadequate. In November, attorneys for Hillerich & Bradsby moved to throw the verdict out claiming that there was no evidence Patch would have acted differently had he been properly warned.
The trial judge denied the motion. The court ruled that “…the jury may have properly inferred from the evidence that a warning would have been heeded and the failure to warn caused the injury.” No word on whether an appeal of the jury verdict is planned…but I can’t imagine the bat manufacturer will simply give up. There are lots of aluminum bats being used on baseball diamonds all over America every spring and summer. The potential exposure is enormous.

STAY AT HOME MOM'S "SALARY" - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Back from vacation, lots to catch up on…
Salary.Com just released its annual study regarding the market value of a stay at home mom. Every year this group gets together and evaluates precisely what mom is worth, by looking at pay levels for the various jobs a mother may do during a given week, like housekeeping, child-care, van driver and teacher. This year, the number they came up with? $116,805. The biggest factor in the number is the amount of overtime hours that a mom may work during the week. 18,000 moms were surveyed and the average number of hours worked per week was 94.4 hours, or just over 13 hours a day.

CHICAGO MAN CLAIMS BAD FISH GAVE HIM 9 FOOT TAPEWORM - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Another entry from the Truth is Stranger than Fiction Department…
A Chicago-area man is claiming that some undercooked fish he ate as a patron at Shaw’s Crabhouse had rather horrifying repercussions. Franz recently filed a lawsuit against Shaw’s and is claiming that as a result of eating the fish he became violently ill for several days. And that is the less disgusting part of his damages. In addition, Franz is claiming that due to the undercooked salmon, he later passed a NINE FOOT TAPEWORM[yes, you read that correctly].
In the lawsuit, Franz quotes a Chicago-area pathologist, who opined that the origin of the tapeworm was likely undercooked fish, such as salmon. Franz is suing Shaw’s and its parent company, Lettuce Entertain You Enterprises for pain and suffering and loss enjoyment of life.
I have attached a picture of a tapeworm I snagged off the internet. Tough to imagine someone yanking nine feet of this stuff out of you…

THE TRAGIC TALE OF CHRISTINA EILMAN - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The January 5, 2010 Chicago Tribune carried a follow up article on the very sad story of Christina Eilman. In the spring of 2006, Ms. Eilman was a 21 year old California woman suffering from bipolar disorder. Her disorder was getting worse – she dropped out of school and lost touch with family and friends. And then she took a trip to Chicago.
After landing at Midway Airport, Eilman remained in the airport for two days, acting in an erratic manner. The Chicago Police Department was called to the Airport on two separate occasions and eventually arrested Eilman and transported her to the Chicago Lawn station, located near the airport. One officer has claimed that he called Eilman’s parents in California and was informed she was “probably” bipolar. The officer further claims that he passed that information to his Watch Commander. Chicago Police Department rules require officers transport persons suffering from mental illness to a hospital for an evaluation. The City claims it was not necessary because during one interview at the Chicago Lawn Station, Eilman was apologetic and lucid.
But there were certainly indications all was not well with Eilman. One Officer, Rosendo Moreno, told investigators that while Eilman was still at Chicago Lawn he heard the Watch Commander, Carson Earnest, instruct Officer Richard Cason to take Eilman to the hospital for an evaluation. According to Moreno, Cason told the Commander no car was available. Cason told investigators he does not recall the conversation. Earnest has denied ever being advised that Eilman was mentally ill. However, another officer, Yvonne Delia was sufficiently alarmed by Eilman’s behavior that she called Eilman’s parents in California was advised Eilman was mentally ill. Delia further claims she passed that information onto Earnest.
Eilman never got to a hospital. Instead, she was transported to the Wentworth District, commonly known as Area 2. The Wentworth District is located near the University of Chicago and recognized as a high crime area. Eilamn was escorted to the rear door of the station and allowed to leave. Eilman continued to act erratically as she wandered the streets. Eventually she ended up at a public housing high rise. Not long thereafter Eilman went to an empty 7th floor apartment with a group of people. At least one person tried to persuade Eilman to leave but she refused.
Eventually, Marvin Powell, a reputed gang member and convicted felon arrived. He ordered everyone out of the apartment but prevented Eilman from leaving. Eilman was heard screaming briefly. Shortly thereafter, she plunged from the 7th floor apartment to the ground below.
As a result of her fall, Eilman suffered multiple fractures, a shattered pelvis and a devastating brain injury. After years of treatment, she has now plateaued and has only a child-like comprehension of the world. She will need ongoing medical care for the rest of her life.
Marvin Powell was arrested and charged with abduction and sexual assault. He is in jail, awaiting trial.
Eilman’s parents have filed a federal lawsuit against the City of Chicago seeking $100 million dollars in damages. The case is expected to go to trial in March.

NANCY GRACE LAWSUIT - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

A Florida Federal District Court judge recently refused to dismiss the lawsuit that accuses CNN’s Nancy Grace of driving a young woman to commit suicide. The lawsuit, filed by the parents of Melinda Duckett, arises out of an appearance Ms. Duckett made on The Nancy Grace Show shortly after Duckett’s son, Trenton, went missing in August of 2006. The Ducketts contend in their lawsuit that Grace lured their daughter onto the show under false pretenses, by suggesting that an appearance on the show could help locate her son.
On the show however, Ms. Grace, a former prosecutor, allegedly accused Ms. Duckett of hiding something, and asked pointed questions about why Duckett had refused a lie detector test. Ms. Grace also pointed out that several of Ms. Duckett’s answers were not particularly specific. Bethann Eubank, the mother of Melinda Duckett, has indicated that after the appearance, her daughter was very distraught, and ultimately shot herself, shortly before the pre-recorded show aired.
CNN and Grace had moved to dismiss the lawsuit, arguing that permitting it to go forward would “chill” coverage of missing persons cases. Judge William Terrell Hodges disagreed however, and refused to dismiss the case. Nancy Grace spokesperson Janine Iamunno recently commented that “This is only a procedural ruling about whether the case should be allowed to go forward. It does not mean that the claims are likely to succeed”.
To date, Trenton has not been found.

POSTSCRIPT ON BELLEVILLE, ILLINOIS SEX ABUSE TRIAL - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

A St. Clair County, Illinois jury today handed down a multimillion dollar verdict against the Belleville Diocese for flagrant sexual abuse of a minor by Rev. Raymond Kownacki. The plaintiff, James Wisniewski, now 47, claimed that he was repeatedly abused in the 1970’s by Kownacki. For the appalling details of the abuse, please see my August 27, 2008 post The jury awarded Wisniewsk $5 Million dollars in damages. The award included $2.6 million dollars in punitive damages and $2.4 million dollars in compensatory damages.
According to an online account, the Rev. Joseph Schwagel, a former Belleville Diocese official, testified at trial that there were attempts to cover up the allegations and the victims were treated like “dirty laundry”. Sara Wiesner, a juror from O’Fallon Illinois told reporters that the actions of the Diocese were “appalling”.
Kownacki, was removed from active ministry in 1995. Shockingly, he remains a priest and receives retirement benefits.
Lawyers for the Diocese made no comment as they left the courtroom. They had argued that the statute of limitations had run on the case and it was not clear if an appeal was planned.
POSTCRIPT:
Several readers have emailed me commenting that my August 27 post was overly harsh, in that I condemned the entire church for the depived actions of a few. In retrospect, they are right. There are many good people in the Catholic Church doing good work throughout the world. Unfortunately, their good work gets overshadowed by the heinous acts of freaks like Kownacki. I will try for more precision in the future.

EMPLOYERS SPYING ON EMPLOYEES - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

According to a recent story in the ABA Journal, employers are now spying on employees to make sure the workers are not abusing employment leave policies. The story explains that employers are becoming increasingly frustrated by what they consider to be abuses of leave granted to employees under the Family Medical Leave Act. More and more employers feel they need a new weapon – like surveillance – to combat malingerers who are abusing their leave under FMLA. And, in some instances, the surveillance has been successful. One employee on sick leave was caught bowling, while another was actually taped working at a second job. Lawyers for workers, on the other hand, are arguing that the surveillance amounts to harassment and will have a chilling effect on other workers who won’t take necessary leave because they are afraid of surveillance. And, employee rights attorneys suggest that the surveillance may lead to independent causes of action, such as retaliation or harassment against the employer.

ILLINOIS SUPREME COURT ALLOWS INJURED PARTIES TO RECOVER FULL REASONABLE VALUE OF MEDICAL EXPENSES - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Illinois Supreme Court recently clarified exactly what injured parties may claim as medical expenses in injury cases. The opinion, Wills v. Foster, was issued on June 19, 2008. The underlying facts are pretty straightforward. The plaintiff, Sheila Wills was injured in an automobile collision. She sued the defendant, Inman E. Foster. Ms. Wills had medical bills of $80,163.47. In addition, plaintiff was covered by both Medicaid and Medicare. As a result, her medical bills were directed to Medicaid and/or Medicare, who paid a fraction of the actual billed amount – $19005.50 to be exact.
Prior to trial the plaintiff moved to exclude any evidence that Medicaid/Medicare had paid any of her bills. At the same time, the defendant moved that plaintiff be allowed to claim only the actual paid amount of the bills, as opposed to the billed amount. The trial court granted the plaintiff’s motion and denied the defense motion. The case then proceeded to trial. The jury found for plaintiff and awarded her the full amount of her actual medical bills[$80,163.47], as well as an additional amount for pain and suffering. The defense then filed a post-trial motion, asking the court to reduce the medical bill portion of the verdict from $80,163.47 to $19,005.50. The trial court granted the defense motion and reduced the plaintiff’s award to the actual amount that Medicare and Medicaid had paid. The plaintiff appealed to the Fourth Appellate District Court. The Appellate Court upheld the trial court’s decision.
The plaintiff then appealed to the Illinois Supreme Court. Plaintiff argued that the trial court’s order violated the collateral source doctrine and was contrary to Arthur v. Catour, another recent Illinois Supreme Court decision. The collateral source doctrine basically provides that injured parties shouldn’t be punished for receiving collateral source[i.e. insurance company]payments of medical bills incurred due to the negligence of others. Juries are not to be informed that a) the plaintiff was covered by insurance or b) that insurance made any payments on the plaintiff’s behalf. [As an aside this fiction is somewhat outdated – most juries know there is insurance involved]. The Arthur v. Catour decision had held that a plaintiff could submit unpaid medical bills to the jury if there was sufficent foundation testimony that the bill involved was reasonable.
The Supreme Court, after much discussion, decided that the Arthur v. Catour approach was correct. Plaintiffs are entitled to seek to recover the full reasonable value of their medical expenses. The “reasonableness” requirement set forth in Arthur remains a part of the foundational requirement in order to get the bill into evidence. A paid medical bill will be presumed to be reasonable, and therefore, admissible. In order to get unpaid portions of medical bills submitted to the jury, the plaintiff will be required to present evidence[presumably testimony from an individual familiar with medical coding and billing]that the unpaid portions of the bill are indeed reasonable. The defendant is free to cross examine any witness called by plaintff to establish reasonableness and the defendant can call his own witness to offer testimony the bill was not reasonable. Defendants may NOT however, introduce evidence that the bill in question was compromised for a lesser amount. Once a bill is submitted to the jury, the jury decides if they will award all, some of none of it.

WARNINGS WITHHELD ABOUT DANGEROUS BASSINETS - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

According to a report in today’s Chicago Tribune both federal regulators and Graco Children’s Products withheld warnings about potentially dangerous bassinets being marketed under the Graco name. The article, written by Patricia Callahan, explains that on August 27, 2008, the U.S. Consumer Products Safety Commission had issued a urgent warning, advising consumers not to use Simplicity Bassinets, as a design flaw had already resulted in the strangulation deaths of two infants. Both children had become entrapped in metal bars contained in the product’s framework.
The article goes on to detail how Graco officials saw the warning on August 28, 2008, and, that same day, told officials with the Safety Commission that some Simplicity Bassinets had been marketed under the Graco name and were identical to those models identified in the safety alert. Additionally, on August 28, 2008, Nancy Cowles, executive director of Chicago-based Kids in Danger, saw an Internet posting from a consumer that her Graco product looked exactly like the Simplicity model. Cowles then contacted the Safety Commission to inquire about the Graco models. According to Cowles, a spokesman for the agency brushed her off.
Neither Graco nor the Safety Commission issued an immediate recall for the Graco models. Graco indicated that “matters were complicated” by a change in ownership at Simplicity. An outfit called SFCA Inc. had purchased Simplicity’s assets in May and had been “uncooperative” with the Safety Commission. Graco did issue a safety alert on its website today, identifying 17 Simplicity models that may have carried the Graco name. Consumers may return them retailers for refunds or store credit.
The Safety Commission did not respond to repeated requests for comments.

THE LAWYER AND THE STRIPPER - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

From the “You Can’t Make this Stuff Up Department”…
Saw a number of reports today of an Illinois lawyer who was suspended by the Illinois Attorney Registration and Disciplinary Committee [“ARDC”]because of an unusual payment plan he concocted with one of his clients. The story begins in 2001 when the lawyer, Scott Robert Erwin was visiting Heartbreakers, a Compton, Illinois strip club. Erwin got to talking to one of the dancers[the dancers can be very friendly at these places] and the two realized, after a couple of minutes, that they had previously spoken about some legal matters. Erwin then agreed to represent the stripper on some legal matters. That’s where the payment plan comes in…and I’ll bet you know where this is headed. According to the ARDC report, Erwin and the dancer agreed that she would perform some nude dances in his office as a way to cut down on the legal fees. The dancer claimed that from February through June of 2002 she would travel to Erwin’s office, strip, and then dance for 30 minutes. The dancer also claimed that on some of these occasions, Erwin would touch her in an inappropriate manner. Erwin denied any inappropriate touching.
And the stripper had another complaint. She claimed that Erwin continued to frequent Heartbreakers. [As an aside, I would have provided a link, but cursory research revealed a whole lot of strip clubs going by the name of “Heartbreaker” and I just don’t have the time…] But according to the stripper, Erwin made an enormous tactical error. When she danced for him at the club, he wouldn’t pay her for dances. It is my understanding from some field research many years ago, that strippers can become rather grumpy if not appropriately compensated for a dance.
The dancer went to the DeKalb, Illinois police in 2002, and an investigation led to a hearing before the DeKalb County Grand Jury where prosecutors sought a charge of criminal sexual assault. The Grand Jury refused to indict Erwin.
The ARDC suspended Erwin for 15 months. The woman involved is no longer working as a dancer.
Moral of the story? Don’t get on a stripper’s bad side.

CUBBIES DESTROY PIPE IN DODGERS STADIUM - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Okay, first in the interests of complete disclosure…
I am a White Sox fan. I don’t hate the Chicago Cubs, I just don’t care for them very much.
Secondly, this post has absolutely nothing to do with the law. But I couldn’t let it go.
As you may know, the Chicago Cubs ran away with the Central Division this year. They won 97 games and more than a few sportswriters in Chicagoland picked them as a lock to finally get back to the World Series[after a brief absence of 100 years]. Unfortunately for the Cubs, things didn’t work out for them. They were swept by the Dodgers in the NLDS three games to zip. So what did the Cubs do after getting swept? According to Chicago Sun-Times columnist, Rick Telander, one or more Cubs took their bats to a large water pipe in the visiting team’s dugout. As a result, the dugout flooded. What a classy group of guys.

MORE SHOCKING DISCLOSURES IN CLERGY SEX ABUSE TRIAL - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Just when you thought it couldn’t get any worse, there was some absolutely jaw-dropping testimony yesterday in a clergy sex abuse case trial currently underway in St. Clair County, Illinois. James Wisniewski, 47, is suing the Belleville, Illinois Diocese for for damages arising out of the years of sexual abuse committed upon him by Rev. Raymond Kownacki in the 1970’s. Wisniewski has testified that Kownacki abused him some 40-50 times over a 5 year period beginning in 1973. Wisniewski further testified that Kownacki told him that the church “condoned” sexual abuse of minors and that if Wisniewski told anyone about the abuse, Kownacki would kill the boy’s parents and ruin their business. To drive home the point, Kownacki showed Wisniewski a handgun. In addition, there has been evidence that Kownacki raped a 16 year old girl and aborted her fetus with his hands.
Bishop Wilton Gregory testified yesterday[Tuesday] for the defense. And it didn’t go well for the Diocese. Bishop Gregory was brutally honest in his testimony and dropped a couple of bombs.
First, Gregory didn’t particularly help the diocese on the issue of liability. He agreed that the Diocese would be liable if, prior to Wisniewski being abused, the Diocese was aware that Kownacki was molesting children, and simply moved him from parish to parish without warning. Previous testimony has indicated that is precisely what happened.
In addition, Gregory testified that there appeared to be an active cover-up orchestrated by the Diocese when he was leading an investigation into sexual abuse of minors in the 1990’s. Gregory testified that “dozens” of documents, concerning young victims of certain priests, including Kownacki, may have been withheld from him. Reports on Kownacki dating back to 1973 and 1982 were “not filed where the should have been filed”. The evidence has already shown that the Diocese was well aware of the missing reports before Gregory started his investigation.
Gregory also weighed in the propriety of the string of transfers allowing Kownacki to go from one parish to the next without any warnings to parishioners. Gregory ackowleged that after a half dozen reports about alleged abuse, he never would have approved the final transfer to St. Henry’s Parish in Belleville – where Kownacki lived next door to an elementary school.
And fomer Vicar General Monsignor James Margason also testified yesterday. He was the last witness for the defense. Rev. Margason is a canon lawyer certified to represent accused priests. Margason testified that he was aware, prior to Gregory’s investigation, of the reports about Kownacki raping the 16 year old gir and aborting her fetus. Margason was also aware, prior to Gregory’s investigation, of reports that Kownacki was molesting twin boys from Guatemala. Finally, Margason was aware, prior to Gregory’s investigation, that there were reports of two other victims, including Wisnieski. So what did the Vicar General Monsignor Margason do when Gregory began his investigation? What did Vicar General Monsignor Margason, the canon lawyer do? He withheld the reports. Margason admitted that in so doing he breached church law and Review Board Guidelines[not to mention basic laws of human decency].
Margason was also asked about his actions when he became aware of allegations against Kownacki in 1986, after a housekeeper found a love note signed by Kownacki and directed to a young boy, asking the youth to come to his bedroom and “give him a massage”. The Vicar General Monsignor took Kownacki’s word that nothing had happened. Margason took the word of a guy he knew had raped a 16 year old girl and aborted the fetus with his own hands.
Margason also admitted that he was obligated to punish Kownacki for engaging in the abortion, but failed to do so. So although the church doesn’t hesitate to viciously condemn those who support the right to choose, it doesn’t lift a finger when one of its own performs an abortion on a girl he raped. Hypocrisy run amuk.
Most trial advocacy experts say you should finish your case with a good, strong witness for your client. Maybe the lawyers for the Diocese didn’t take Trial Advocacy in law school.
The verdict is expected soon. I hope the plaintiff breaks the Diocese bank.

DIOCESE OF BELLEVILLE SEEKS NEW TRIAL IN SEX ABUSE CASE - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The diocese of Belleville recently filed a Motion for a new trial after getting hit with a $5.5 million dollar verdict in a recent sex abuse trial. Bishop Edward Braxton directed lawyers for the Diocese to file the motion. In addition, Braxton sent a letter to churches in the diocese to be read at Sunday mass. According to news reports, the letter indicated that paying the judgment would “…diminish diocesan resources and significantly limit the church’s ability to serve our people, our parishes [and]our schools…” [Of course there was no mention of a more subtle objective of the letter – generating sympathy for the church amongst the prospective juror pool in the event there is a new trial]. One online article discussed the church’s financial strain argument with Frank Flinn, adjunct professor of Religious Studies at Washington University in St. Louis. Flinn, commenting on the church’s position noted, “It’s a false argument. Had they been genuinely concerned about the finances of the diocese, then the chancellor along with the bishop would have removed this person[the abuser, Rev. Raymond Kownacki] from his cycle of pedophilia in the first place.” In addition, the church’s tactics were also criticized by Survivors Network of Those Abused by Priests, a St. Louis-based church watchdog group. Barbara Dorris, the group’s Outreach Director, noted that the Church’s latest maneuver was “Rubbing salt into fresh, deep wounds. That’s the only way to described Braxton’s selfish decision to appeal the verdict.”
At trial the diocese did not dispute that Kownacki was a serial predator; that Church officials knew about his predatory tendacies; that the Church kept his behavior secret and repeatedly moved him from parish to parish, giving him additional opportunities to molest young children.
And finally, another sad development reflecting on the behavior of the church – lawyers who represented the plaintiff in the underlying case indicated that diocese insurance policy funds may not be available to satisy any portion of the judgment. The reason? The church’s cover-up of the abuse.

WHEN DOGS ATTACK - A LOOK AT THE ILLINOIS ANIMAL CONTROL ACT - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Check out the August issue of the Illinois Bar Journal for a good article by April Pruitt-Summers on the Illinois Animal Control Act, 510 ILCS 5/1 et. seq. The first thing that caught my eye was the link to a study conducted by pediatrician Jeffrey Sacks M.D. and reported in PEDIATRICS[Vol. 97, No. 6, ppss. 891-95]. The link contains some pretty sobering statistics. From 1989 to 1994, on average, there were 18 deaths per year due to dog attacks. Nearly 60% of those deaths were children under the age of 10. As Ms. Pruitt-Summers notes in her article, dog-bite cases, which are sometimes scoffed at, are now getting much more attention, particularly in light of the attention the media is giving to attacks by “bully breed” dogs.
According to the article, in order to recover under the Act, the plaintiff must prove:
1) an injury, caused by a dog owned by defendant;
2) lack of provocation;
3) peaceable conduct on the part of plaintiff; and
4) the plaintiff was in a location where he or she was entitled to be. 510 ILCS 5/1 et. seq.
As to injury, Ms. Pruitt-Summers notes that an actual bite is not necessary. A plaintiff can be injured simply by colliding with the dog. In addition, “ownership” as used in the Act, doesn’t imply actual legal ownership. Instead, the person keeping the dog, or acting as the dog’s custodian can be held responsible. Under the Act, the plaintiff is only obligated to prove that the defendant had some measure of control.
With respect to provocation, the analysis is whether the behavior in question is provocative to the dog . As the author explains, in deciding motions based upon provocation, the Court looks at the behavior from the dog’s perspective, as opposed to the perspective of the victim. Finally, with respect to the final element, the plaintiff can only recover if he has a right to be where the incident took place. The Act bars recovery to people who are injured while trespassing.
The article is fairly comprehensive and worth a look before filing that dog bite complaint.

And, all this talk of dog bite cases reminds me of a story…
Several years ago, I was prosecuting a dog bite case. The dog in question was an enormous, male German Shepherd. The entire time the defense lawyer kept assuring me that the dog was really quite gentle and wouldn’t harm a fly. He was convinced my client had provoked the dog. As it turns out, I secured an order to do an inspection of where the incident took place – the defendant’s home. My client had been invited to the home for a business meeting. When I arrived at the home at the appointed hour, just myself and the other lawyer were present. The homeowner had given a key to the defense lawyer. The hound however, was home. And he wasn’t in his cage. The defense lawyer inserted the key in the outer door to go inside. Immediately, there was a low, deep, growl on the other side of the door. As the lawyer turned the key, the growl became much louder. Then, the beast began to bark. Short, disturbing, staccato barks, not unlike a hyena. Then came the violent scratching. From my vantage point, the dog had apparently decided to actually eat through the door in order to get to whomever was foolish enough to be on the other side. My defense lawyer friend was frozen in place.
I couldn’t resist.
“What’s the matter?”, I asked. “You said the dog was gentle. Open the door, let’s get this over with.”
He was having none of it.
“I’m not going in there. We’ll wait for the owner to get here”.
Shortly thereafter, the case settled.

CHICAGO TRIBUNE TAKES CONSUMER PRODUCTS SAFETY COMMISSION CHAIRMAN TO TASK - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

In a September 14, 2008 editorial, the Chicago Tribune chastised the Consumer Product Safety Commission[CPSC] and its Chairman, Nancy Nord, for an inexplicable failure to act after receiving information about potentially lethal design defects in certain baby bassinets. As detailed in my September 11, 2008 post, on August 27, 2008, the CPSC ordered a recall of 900,000 Simplicity Bassinets after a Tribune story revealed that a design flaw may have been a factor in the strangulation death of two infants. The next day Graco contacted the CPSC and advised that there were an additional 200,000 Simplicity bassinets floating around with the same precise defect, but marketed under the Graco name. As the editorial notes, the CPSC sat on the information for two weeks and finally issued a warning when the Tribune published another story about the Graco bassinets. As the editorial piece points out, just this year the CPSC was given more staff, more money and more freedom to keep the public informed about dangerous products. Chairman Nancy Nord was apparently against the recent innovations and the Tribune , a reliably Republican paper, has called for her resignation for “gross incompetence”. Senators Mark Pryor(D-Ark) and Dick Durbin (D-Ill) have requested a meeting with Nord. They are understandably dumbfounded why the Commission refused to make the public aware of a very real threat to infants. The editorial goes on to note however, that there really isn’t much mystery to the inertia demonstrated by the agency. Nord was against the recent reforms and her agency has ignored or resisted efforts by other agencies to assist with investigations of products that have caused children to die. In fact, the editorial notes, the agency seems bent on protecting the manufacturers of dangerous products. The Tribune closed the editorial by recommending that Nord “…find an exit sign and follow it.”

DEFECTIVE BASSINETS STILL AVAILABLE ON EBAY, CRAIGSLIST - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

As I noted in my September 11, 2008 post, Graco Children’s Products and the Consumer Products Safety Commission[CPSC]had been inexplicably slow in alerting the public about a danger associated with the Graco Simplicity Bassinet. The bassinet’s metal framework created a very real strangulation danger and at least two children had become caught within the framework and died. Graco, after news stories about the product broke, issued a recall on September 11, 2008.
Unfortunately, it appears that Simplicity models are still available for purchase through online services or community resale shops. After the initial recall, investigators for Illinois Attorney General Lisa Madigan scoured online and secondhand markets for the recalled bassinets. They determined that hundreds of Simplicity models were still available online through eBay or Craigslist. As a result of her investigation, Madigan’s office announced a statewide initiative to identify recalled bassinets available through online markets. Madigan’s office is also helping Illinois residents who purchased the defective bassinets with the refund process.
Madigan has also called upon the CPSC to create a strategy that includes online and secondhand markets when recalling dangerous products.

TRIBUNE ENDORSES OBAMA; PIGS SUDDENLY FLY - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Wow, this is big. The Chicago Tribune has endorsed Barack Obama for President. This marks the first time ever, that’s right, EVER, that the paper has endorsed a Democrat. Residents of hell are reaching for overcoats.

NO IMMUNITY FOR ILLINOIS PARK DISTRICT IN RETALIATORY DISCHARGE CASE - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Illinois Supreme Court recently handed down an important retaliatory discharge decision in Smith v. Waukegan Park District . The facts are pretty straightforward – Greg Smith worked as a seasonal park maintenance employee for the Waukegan Park District. On May 8, 2002, Smith suffered a work-related injury requiring medical treatment and some time away from work.
On June 24, 2002, Smith returned to work. The Park District, in the person of Smith’s supervisor, Mike Trigg, insisted on a drug and alchohol test, which Smith refused. Smith felt the testing was “retaliatory harassment” for filing a Workers’ Comp claim. Trigg then informed Smith that he was discharged, supposedly for his failure to take the drug and alchohol test. Smith then filed his retaliatory discharge claim. The Park District moved to dismiss the case under the Illinois Tort Immunity Act. The trial court granted the motion. The Appellate Court upheld the dismissal. The plaintiff then appealed to the Illinois Supreme Court.
The Park District had two primary immunity arguments. First, the Park District asserted it was immune from Smith’s retaliatory claim under 2-109 of the Illinois Tort Immunity Act. Section 2-109 of the Act provides immunity to local public entities when the entity’s employee could not be held liable for the act or omission that caused the alleged injury. The Park District made that argument relying upon Buckner v. Atlantic Plant Maintenance, Inc. In Buckner, the Supreme Court held that even if an employee hatches the plan to fire the employee, the actual discharge is authorized by the employer . The Buckner Court further explained that the motive for a firing in light of a Worker’ Comp claim – avoidance of employee medical bills and related expense – go to the employer, and not the employee. Based on those findings the Buckner court held that the tort of retaliatory discharge could only be committed by an employer. The Park District, argued[in a somewhat circular argument]that since Buckner precluded any liability on the part of the supervisor, under 2-109, the District could not be liable.
The Supreme Court in Smith , though, wasted little time in disposing of the Park District’s first argument. The Court pointed out that the Smith’s supervisor hadn’t caused the discharge – the District did. Therefore, 2-109 does not apply in retaliatory discharge cases because the employer, not the employee, causes the harm. As a result, the District was not immune from a retaliatory claim.
The District also argued that it enjoyed immunity under 2-201 of the Tort Immunity Act. Section 2-201 provides that a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or ommission in determining policy when exercising that discretion. In shooting the District’s second argument down, the Court held the public employees possess no immunized discretion to discharge employees for exercising their Workers’ Compensation rights.
The Supreme Court reversed the judgments of the Appellate and trial courts and remanded the case back to the trial court for further proceedings consistent with the Court’s opinion.

CHICAGO ACCIDENT VICTIM NEEDS HELP - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

On Thursday, October 17, 2008, the Chicago Sun-Times had a story about the misfortune recently visited upon Michael Bielinski. On October 5, 2008, Michael was driving on the Kennedy Expressway, at about 3:30 am. He was returning home from a birthday party. His girlfriend was with him. Michael’s vehicle was making a funny sound, so he pulled over near Ontario Street to have a look. And that’s where things went south. As he was checking his vehicle, he was struck by another car. The driver of the other car never bothered to stop. MIke suffered horrendous injuries – a ruptured spleen; fractured vertebrae and assorted internal injuries. And, last week, his left leg was amputated. Michael now faces weeks or physical therapy at the Rehabilitation Institute of Chicago. To make matters worse, Mike doesn’t have any health insurance. His medical bills will likely top $100,000. Mike’s dad has offered a $10,000 reward for any information that leads to the arrest of the driver. In addition, Villa Rosa Pizza, Mike’s employer is throwing a fund-raiser for Mike on October 27, 2008, from 4-8 pm. Finally, a medical expense fund has been set up at the Devon-Edgebrook Associated Bank, 6355 N. Central. Illinois State Police have been able to identify the other car as a black Mercedes Benz, based upon debris at the scene.
Anyone with information about the crash can call the Illinois State Police.

DELTA CRIB RECALL - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

J.W. Elphinstone of the Associated Press had an article in the Chicago Tribune today discussing the Delta Enterprises recall of 1.6 million older models of a drop-side crib after two infant deaths. The company indicated on Monday that 985,000 drop-side cribs, made between 1985 and 2007 require safety pegs that may be lost during the assembly process. In addition to those models, another 600,000 cribs made during the same time frame may contain worn out springs that also pose significant dangers to infants.
One of the infant deaths involved a missing safety peg. The crib’s side became detached, resulting in a gap. The infant became stuck in the gap and suffocated. The circumstances leading to the second infant death were similar. In that instance, a worn spring peg failed to lock the side of the crib into place. The side detached and the infant suffocated after becoming stuck in the resulting gap.
According to Jack Gutt, a spokesman for the company, “Anyone who calls and has these cribs that were constructed in these time periods, we’re going to send anybody and everybody either additional pegs or the retrofit kit”. The diagrams below are from the Delta recall site, and show how the involved cribs would appear.
In addition to details contained in the recall, Delta has established a helpline at 1-800-876-5304. The Consumer Product Safety Commission[CPSC]has also issued a Press Release giving details about the recall. Thankfully, the CPSC acted a little quicker this time around, as compared to its glacial response when the dangers with Simplicity bassinets recently became known.

OCTOBER DANGERS ON THE ROAD - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

An article in the Chicago Sun-Times today discussed some dangers associated with driving in the fall. First, the article referenced a recent State Farm Insurance study showing that teen drivers have more automobile accidents in October. According to the article, when October rolls around claims resulting from teen drivers spike 20%. Larry Williams, a Chicago-based State Farm agent, told the Chicago Sun-Times that a number of factors may explain the increase in accidents. “We’re extremely busy at this time of year,” Williams noted. “I think more than anything it’s because it gets dark quicker. The roads are slicker. The weather is changing, with the rain and the leaves.” In addition, as noted in the article, [written by Mary Wisniewski] teens are busier in October, driving to football games, homecoming dances and related school activities.
In addition, the article also noted that the last three months of the calendar year, October through December, is the high season for deer collisions. There are approximately 1.5 million deer/automobile collisions per year. Sadly, more than 150 people per year lose their lives due to collisions with deer.
On-line articles suggested some basic cautions for drivers:
1) Slow down when approaching deer. If necessary, honk your horn or flash your lights to scare deer off the road.
2) Be mindful that the presence of a single deer suggests other deer are nearby.
3) Usually, it is best NOT to swerve around the animal, as a frightened deer may move in exactly the same direction. A better course is to simply brake and continue in the same direction.
4) Be particularly mindful of deer at dawn or dusk. In addition, be wary when approaching a hill or curve.
5) Don’t trust “deer whistles” or ultrasonic deer avoidance systems[?].

TAINTED CANDY RECALLED IN CANADA - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Canadian Food Inspection Agency[CFIA] is warning Canadians not to eat, distribute or sell Sherwood Brand Pirates Gold Milk Chocolate Coins. Recent CFIA tests on the candy came back positive for the presence of melamine. The product at issue has 240 pieces of candy per package and bears UPC 0 36077 11240 and lot code 1928S1. The candy is distributed in Canda through Costco Stores. If the product code or lot number are not available to consumers, the CFIA is advising consumers to check for that information at the source of purchase. The CFIA is also advising retailers and distributors to stop distribution of the product. In addition, the CFIA is recommending that distributors initiate a voluntary recall. To date, no illnesses associated with consumption of the product have been reported.

SHERWOOD BRANDS RESPONDS TO CANADIAN RECALL - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

As noted in my October 27, 2008 post, the Canadian Food Inspection Agency[CFIA] recently issued a warning advising Canadian consumers not to eat Sherwood Brands Pirates Gold Chocolate Coins. Tests on the coins had revealed the presence of melamine. Sherwood Brands has now issued a notice to customers in response to the CFIA warning. The notice details that no Sherwood products containing melamine reached the United States. After learning of the FDA warning about possible melamine contamination in milk-containing products, Sherwood began to work with labs to confirm their products were free of melamine.
Sherwood has not received any chocolate in the United States from China since the initial report about melamine. The notice goes on to note that the identification of chocolate coins tainted with melamine was an isolated “situation” limited to Canada. Those coins were not sold or shipped into the US market and were produced before the initial melamine warning. Upon being advised of the contamination, Sherwood stopped all production and shipment of the coins. Sherwood is now testing all product earmarked for Canada or the US for melamine prior to shipment.

INSULIN NEEDLES RECALLED - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

According to an article in the November 7, 2008 Chicago Sun-Times , approximately 500,000 diabetic syringes are being recalled. The article, written by Monifa Thomas, notes that the manufacturer,Covidien, recalled 4,710 boxes of single use ReliOn syringes, sold at Wal-Mart and Sam’s Club, between August 1 and October 8. According to the Food and Drug Administration[FDA] notice, use of the syringes may lead to the patient receiving more than twice the recommended dosage. The recall applies to 31 gauge, 1cc ReliOn Insulin syringes from lot number 813900. The product number is 38396-0403-02. The FDA has reported one adverse reaction. For more information, consumers are urged to contact Covidien at 866/780-5436, or go to the Relion recall website.

ILLINOIS FAMILY MILITARY LEAVE ACT - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw an interesting article in the CBA Record by James F. Costello Jr., the Veteran’s Rights Project Coordinator at the Legal Assistance Foundation of Metropolitan Chicago. Costello’s article discussed the Illinois Family Military Leave Act[The Act]. The Act is fairly new, having just become effective in 2005. The purpose of the Act is to afford leave to employees who wish to visit with spouses or children who have been called into military duty. The article is an excellent primer on the Act. Some of the important points made by Costello include:
1) Leave is extended only to the spouse or parent of a person called to military service lasting longer than 30 days;
2) Only employers with 15 or more employees are covered;
3) The Act extends only to those employees who have worked at least 1,250 hours in the preceding 12 months;
4) Employers with 15-50 employees are required to provide up to 15 days of leave to the employee;
5) Employers with more than 50 employees are required to provide 30 days of leave;
6) The leave is UNPAID;
7) Eligible employees seeking to utilize the leave must give advance notice to the employer[oral notice is acceptable];
8) Upon return from leave, the employee shall be restored to his/her previous position, or to an equivalent position;
9) Employers are prohibited from discharging, fining, suspending or in any other way interfering with the employee’s right to utilize the leave;
10) Individuals may enforce their rights under the Act by filing suit in the Circuit Court. The only enforcement mechanism however, is injunctive or equitable relief. The Act does not provide for damages.

The Act, as pointed out by Costello, is particularly timely. The Illinois National Guard is presently in the midst of its largest deployment since World War II, with nearly 3000 soldiers scheduled for deployment to Afghanistan to assist with the growing insurgency.

PEORIA DIOCESE: PERSONNEL DECISIONS PRIVILEGED - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Catholic Diocese of Peoria , Illinois is claiming that personnel decisions regarding priests are confidential, and not subject to civil court review. This latest turn in the Catholic Church sex abuse crisis arises out of a lawsuit recently filed againts the Peoria Diocese by Andrew Ward. Ward, age 20, filed suit in June, accusing now retired Monsignor Thomas Maloney of sexally abusing him at Epiphany Catholic Church, located in Normal, Illinois, between 1995 and 1996. The Diocese recently filed responsive pleadings seeking dismissal of the lawsuit. The Church apparently argued that it is Constitutionally-protected from disclosing church policies on hiring, supervision and termination of priests. The Church further argued, that if the lawsuit were allowed to go forward, Courts could be asked to evaluate Catholic Church doctrine and religious principles relating to personnel decisions. Precisely the point. Civil juries should be allowed to evaluate, and if appropriate, award damages against those Dioceses that knowingly permit serial predator/priests to posted in positions where they have ready, unsupervised access to children. This “Constitutional” argument is simply the latest argument offered by the Church to avoid facing responsiblity for the appalling way pedophiles priests were simply reassigned to different parishes and word of their activities buried by the Church.
Not suprisingly, apparently Peoria Diocese officials were aware of allegations made against Maloney by a young woman before he was assigned to Ephiphany parish.

RECENT STUDY: SAFER TO SETTLE? - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

A recent study in the Journal for Empirical Legal Studies suggests that plaintiffs should strongly consider accepting settlement offers and NOT going to trial. Law Consultant Randall Kiser and Cornell Legal Professor Jeffrey Rachlinski analyzed over 2000 civil cases from 2002 through 2005. According to the study, 61% of those plaintiffs received less in damages than the pre-trial settlement offer. Conversely, only 24% of the defendants were hit with damages larger than the pretrial offer.
First, I haven’t read the entire study, and quite frankly probably never will. [I have serious reservations that anything published in the Journal of Empirical Legal Studies is a fun read.] Secondly, I am not sure what type of lawsuits were studied. But the results are hardly earth-shattering. In personal injury lawsuits when the plaintiff can demonstrate liability on the part of the defendant, and serious damages, those cases rarely see the courtroom. Insurance companies/defendants recognize the dangers of leaving juries decide their fates, and settle the cases for fair amounts prior to trial. If on the other hand, the plaintiff has an iffy liability case, and/or limited damages, the likelihood of a large verdict is pretty remote. The defense recognizes that and is much more comfortable trying the case. Any pretrial offers will be correspondingly small, leaving the plaintiff little choice but to try the case. And, more often than not, tough cases result in defense verdicts. So the results of the study shouldn’t come as a huge suprise. More importantly, the study shouldn’t dissuade those people with strong cases from pursuing them to verdict.

$16 MILLION DOLLAR VERDICT IN PAIN KILLER SKIN PATCH CASE - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

A Cook County jury recently awarded $16.5 million dollars to the family of a Cicero woman who died of a drug overdose while using a pain-killer skin patch. Janice DiCoslo was using a prescribed Duragesic patch when she died on February 15, 2004. In a normal patch, a gel containing fentanyl is released into the body slowly through a layer of film. Some of the patches were defective however, and the layer of film didn’t completely cover the gel. As a result, the gel would leak out. Users of defective patches were vulnerable to overdoses of fentanyal, which can cause complications ranging from drowsiness to death.
The very day that DiCosolo’s husband reported his wife’s death, a recall of the defective patches was announced. The patch DiCosolo was wearing at the time of her death came from the recalled batch. Jurors reportedly found that the manufacturers of the patch, Janssen Pharmaceutical, Inc and ALZA Corporation were aware of the problems with the patch. the defendants have vowed to appeal the award.

ILLINOIS SUPREME COURT HEARS ARGUMENT ON CAPS IN MED MAL CASES - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Last week the Illinois Supreme Court heard argument on the constitutionality of the 2005 Illinois legislation capping damages in medical malpractice cases. The law caps non-economic[pain and suffering]awards against doctors are $500,000. In addition, the law caps similar damages against hospitals at $1million.
The argument against caps is twofold. First, caps violate the separation of powers doctrine. The law permits legislators to invade the judicial branch and arbitrarily establish limitations on verdicts. The only body that should ever be allowed to set damages due to medical malpractice is a jury – those individuals who actually sat in the courtroom and heard and saw the evidence and the devastation that victims of malpractice suffer. In addition, caps violate the Illinois Constitution prohibition as to “special legislation”. Article IV, Section 13 of the Illinois Constitution says it is impermissible for the State to treat groups of people in different ways. Caps do precisely that – they limit damages that victims of medical malpractic may recover, while not placing a similar ceiling on the damages that victims of different kinds of negligence may recover.
The proponents of caps trot out the same “scare ’em” tactics that were so successful in 2005. Back then, caps supporters insisted that malpractice premiums and huge verdicts were causing doctors to flee Illinois in droves, thereby reducing healthcare opportunities for Illinois citizens. Those arguments have been thoroughly debunked. The number of doctors in Illinois has steadily risen since 1996, according to the American Medical Association[and they should know, shouldn’t they?].
Caps have no place in the legal system. The courtroom remains one of the very few places in America where ordinary citizens can bring behemoth corporations and the insurance companies behind them to justice. If caps become the law of the land in medical case, it won’t be long before other interest groups mount up to limit damages consumers can get in other cases. Hopefully the Supreme Court will shoot this law down.

WOMAN SUES AFTER TESTING POSITIVE FOR HIV AFTER KIDNEY TRANSPLANT - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Kara Spak had an article in the November 18 Chicago Sun-Times about the horrible consequences suffered by a young woman after kidney transplant surgery at the University of Chicago Hospital. The 33 year old woman, indentified only as Jane Doe, received a kidney from a male donor in January of 2007. The donor was reportedly a homosexual who died in an auto accident. Shortly after the transplant, Ms. Doe was diagnosed with HIV and hepatitis C.
Ms. Doe recently sued the hospital and surgeon. She is alleging that the surgeon, Dr. Richard J. Thistlewaite as well as others, knew the donor was gay but did not advise Ms. Doe. Male to male sexual contact is considered by the Centers for Disease Control[CDC] to be high risk behavior and must be revealed to the potential recipient, unless the transplant surgery takes place in an emergency situation.
Ms. Doe had previously rejected two kidneys and her condition at the time of transplant in question was not life-threatening. Ultimately, her body rejected the kidney from the gay donor as well. She is now on dialysis, and receiving HIV treatment. According to the lawsuit, had Ms. Doe known that the donor was a homosexual, she would have declined the transplant.
Three other patients received organ donations from the same donor who provided the kidney to Ms. Doe. All four have been diagnosed with HIV and hepatitis C.

WAUKEGAN RADIO STATION SUED AFTER CONTEST WINNER ASSAULTED - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw an online article from the Chicago Tribune the other day, discussing an unusual lawsuit recently filed against a local radio station. The article, written by Emily S. Achenbaum, detailed how a Chicago woman[identified only as “Jane Doe”]is suing WXLC, a Waukegan radio station, and its parent company, Next Media Group, Inc. after she won a contest run by the station – and ended up being sexually assaulted. The station ran a a “Win a Date with Travis” contest. The “Travis” in question was Travis Harvey Jr. of Gurnee, Illinois[pictured below]. He was described, in connection with the contest, as “a great guy”. He claimed that due to his busy schedule as a single father, he just didn’t have time to date. So on January 30, 2007, WXLC sponsored a “Win a Date with Travis” contest at an area sports bar. Contestants were invited to drop by the bar and sit and chat with Harvey. The plaintiff eventually won the contest, and Harvey promised a night out at the House of Blues in downtown Chicago. On the scheduled day though, Harvey spoke with Jane Doe and advised that he was too tired to go downtown – he suggested she come over for pizza. Jane Doe showed up, had a drink of some sort, and then felt drowsy. She claimed that Harvey then sexually assaulted her. Jane Doe went to the police several days later but there was physical evidence indicating any drugs were used or that Jane Doe had been sexually assaulted. Nonetheless, Harvey was apparently arrested and recently pled guilty to the assault and was sentenced to probation. The complaint also pointed out that prior to the assault upon Jane Doe, Harvey had twice been convicted of violating orders of protection. The complaint is alleging that the radio station was negligent in failing to check Harvey’s record and promoting his as a safe and desirable companion.

MEDICAL RESIDENTS STILL OVERWORKED - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

According to an article in today’s Chicago Tribune , medical residents[medical school graduates caring for patients under the guidance of more experienced physicians] are still working way too many hours. The article, written by Mary Engel, discusses a report released Tuesday by the Institute of Medicine, an arm of the National Academies. The report recommends that residents not be allowed to work more than 16 consecutive hours. Currently, residents are permitted to work, get this, 30 hour shifts. And they are required to work those grueling hours despite a number of recent studies that have shown that that residents who work too long without sleep are, suprise, suprise, more likely to injure themselves or patients.
There are however, those who disagree with shortening the 30 hour shifts. Mark Langdorf, MD, Medical Director of the Emergency Department at the University of California Irvine Medical Center, is one of those who disagrees. In fact, he categorized the new recommendation as “nuts”. Langdorf claims that any advantage gained by shorter shifts[like doctor and patient safety]would be outweighed by the disadvantage of having to turn patients over to doctors who don’t know the patient’s history. I’m no doctor, but I have to disagree with Langdorf. I thought the standard of care required that when any patient is turned over to another doctor, a comprehensive oral history is given to the new doc by the departing doctor. In addition, the patient’s chart is presumably available, as is the nursing staff who typically has more contact with the patient anyway. And frankly, how sharp is a resident going to be after an exhausting 30 hour shift? I’m not sure I want some recent med school graduate making critical decisions about my health on Thursday morning, when he hasn’t slept since Tuesday night. Hopefully these reforms will be enacted.

WHAT HAPPENED TO THE LAPTOP? LISKA RETALIATORY INTRIGUE - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The retaliatory discharge case recently filed by Paul Liska against his former employer, Motorola, is getting nasty. According to Wailin Wong’s April 16, 2009 article in the Chicago Tribune, Motorola recently filed a motion with the trial judge alleging that Liska destroyed evidence on a Motorola laptop he used after his termination.

In a Memorandum filed with their Motion, Motorola detailed that Liska was informed on January 28, 2009 that he was being replaced. Liska was apparently last in his Motorola office on January 29, 2009. Motorola alleged that when Liska left that day, he took a company laptop and some documents. Motorola subsequently requested that the laptop be returned. When Motorola got it back it was a “blank slate”. Motorola then went out and hired a forensic computer firm to analyze the laptop. The forensic experts concluded….[cue dramatic music] that a date destruction program had been run on the computer several times between January 30 and February 12.
Motorola is also asking the trial judge for permission to examine any computers Liska may have acccessed in the past year. Liska had earlier denied he took any Motorola property.

MILLIONS FOR PARDONED CHICAGO MAN - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

A man previously convicted of murder for setting a fire that caused multiple deaths, now stands to collect a multi-million dollar payout arising out his prosecution and conviction. Madison Hobley was initially charged with setting a 1987 fire the killed seven people – including his wife and young son. He was convicted in 1990 and sentenced to death. Hobley spent 13 of the next 16 years on Death Row. All the while Hobley claimed he had been tortured by Jon Burge and other Chicago Police Officers. In 2003, Hobley was pardoned by former Governor George Ryan . Hobley then sued the City for the prosecution and imprisonment. That lawsuit was settled for 1 million dollars. In addition, the City agreed to pay another $6.5 million if Hobley wasn’t indicted again for the crime by January 3, 2009.
The FBI and federal prosecutors re-opened the case in 2007. The agents obtained police department records and interviewed several of Hobley’s relatives. In addition, Hobley spoke with investigators and prosecutors for several hours. The decision was made not to re-indict Hobley.
Under the terms of the previous settlement, the City had 60 days to pay Hobley, who has since relocated to North Carolina. A spokesman for the City of Chicago indicated that the payment process has already been started.

ADDISON POLICE NOT LIABLE FOR ARREST BASED ON STOLEN IDENTITY - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Plaintiff Hilario Mercado Jr. went to a family birthday party on September 27, 2003. As so often happens at family parties, a fight broke out and the Addison Police were called. Upon their arrival, Mercado and another person were leaving. One of the officers requested ID and Mercado presented his state ID. The Police ran Mercado’s name, race, sex and date of birth and learned that a “no bond” warrant had been issued for Mercado on a retail theft charge. The DuPage Sheriff was contacted and it was confirmed the warrant was still valid. The DuPage warrant provided information as to the Mercado’s name, date of birth, driver’s license, social security number, eye color, hair color, height and weight. The officers explained the warrant and arrested Mercado. Mercado claimed that he insisted that he was not the subject of the warrant, had never been arrested and had never missed court. [Later it was learned that Mercado’s identity had been stolen and the person who failed to appear was not Mercado, but someone named Ruben Vasquez]. The Police denied that Mercado claimed he wasn’t the subject of any warrant. Mercado was taken to jail. A couple of days later he appeared in court but didn’t mention any mistaken identity. He did request a court-appointed attorney. Later that day Mercado contacted his own attorney who attended a subsequent hearing on the case. At that time a fingerprint analysis was ordered and it was finally revealed that Mercado was not the person who had committed the retail theft. Mercado was later released. Some time later he sued the Village of Addison for false arrest. The defendant moved for summary judgment, arguing that it had probable cause to arrest Mercado. The trial court granted the motion and Mercado appealed.
Plaintiff argued on appeal that the motion for summary judgment should not have been granted, as there were factual questions whether the officers had a duty to investigate his claims of mistaken identity. The defense, in response, asserted that the officers acted in good faith, as the warrant named Mercado and the identifying information on the warrant was correct. In addition, the Village argued that at the time of the arrest[2:30 am]there was no way to investigate the claims of mistaken identity.
The Second District Appellate Court first noted that to succeed on the false arrest claim, the plantiff had to show that he was arrested without any reasonable grounds to believe an offense had been commmittted. [And the Court also noted that because Village had immunity under the Local Governmental and Governmental Employees Tort Immunity Act for any acts or omissions in the enforcement of a law, the plaintiff was obligated to show the officers conduct was wilful and wanton].
The Appellate Court felt that the key issue was whether the the officers reasonably believed Mercado was the fellow named in the warrant. The trial court felt they had – and the Appellate Court agreed. The Court noted that all the info on the warrant[name; DOB; address; Driver’s License number; Social Security number; eye color; hair color; height and weight] all matched plaintiff’s information. In short, the officers had every reason to believe that they had the right guy. Because Mercado was the individual named in the warrant, the Appellate Court ruled the the officers did not act unreasonably in arresting him. The trial court’s ruling was affirmed.

BILL COLLECTOR LOSES IN COURT! - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

As I described in my August 21 post, titled ILLINOIS HEALTHCARE SERVICES LIEN ACT was getting a run-around from a medical collection company with respect to my client’s hospital bill. The underlying personal injury case had settled and an agreement was reached as to the amount the hospital would be paid for my client’s outstanding bills. Just one hiccup – the hospital had sent the bills to some out of state collection agency. And the robots at the collection agency was insisting that even after accepting the agreed-upon amount, they would pursue my client for the balance. I spoke to hospital personnel who admitted they were happy to receive partial payment on what would ordinarily be a non-collectible bill[my client had no insurance]. The hospital also admitted they usually wrote off any remaining balance. Passed that information onto the collection agency, but they wouldn’t budge. So, in effect, some third party bill collector, not the hospital, was driving this dispute. Presented a Motion to Adjudicate the Lien today, laying out the facts to the trial judge. And, to my delight, he discharged the remaining balance. This particular judge is an intelligent, seasoned veteran of the bench, and he was not pleased when he figured out that some collection agency was trying to make life tough for my client. Hopefully the hospital will part ways with this particular collection agency.

BIKE RIDER WINS! - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Holidays are over, time for the first post of 2009…
I haven’t included many posts related to my own cases of late. Here’s a summary of a case that recently reached a very favorable conclusion.
Client comes to me saying he was struck by a car while crossing the street on his bicycle. Due to the impact, he suffered a fracture of his leg, and a couple of painful surgeries. Actually, there was a little more to the story[there always is]. He was riding his bike in the middle of a busy, but poorly-lit Riverdale street in early April. I had some concerns about the liability aspect of the case so I got the Police Report. The Report was a combination of good and bad facts. The diagram showed my client smack dab in the middle of the road at the time of impact. Bad fact. And it was dark. Another bad fact. And, the report indicated an absence of any reflectors on my client’s expensive Bianchi bike. Again, not helpful.
But the report also indicated that the defendant driver left lengthy skid marks after impact. And the force of the collision threw my client[6’2″ tall and about 180 pounds]a long, long way from the point of impact. Those facts suggested that either the defendant never saw my client until after impact, and/or was going well in excess of the posted speed limit. Finally, the bike had been preserved and an inspection did show a couple of reflectors still intact. Perhaps there was some hope.
The collision had taken place just west of the Riverdale Police Department, right before a shift change. The Police Report indicated several officers had seen my client prior to the collision on their way into the station. And they confirmed they had seen him in their depositions. Casually riding right in the middle of the street. Nowhere near the right side of the road, as required by Section 5/11-1505 of the Illinois Vehicle Code. Ouch.
But then we took the defendant’s depo. And in the course of two hours, he offered at least 3 versions of the event. At one point he denied ever making contact with the bike rider. He was, to be charitable, not particularly credible.
The parties agreed to have a binding arbitration at ADR. The judge who presided, a veteran trial lawyer and former judge, was not impressed with the testimony of the defendant. I argued that the location of the plaintiff and his alleged lack of reflectors was ultimately irrelevant, as the defendant never saw him until impact. The judge agreed and entered a gross award of $181,000.

BIG SEXUAL HARASSMENT VERDICT AGAINST MADISON SQUARE GARDEN - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

As reported last week, a New York jury recently hammered Madison Square Garden[MSG] and its chairman, James Dolan in a sexual harassment suit. Anucha Browne Sanders had sued MSG, Dolan and New York Knicks coach Isiah Thomas, claiming she had been subjected to a hostile work environment due to crude comments and sexual advances from Thomas. She also alleged that Dolan had fired her after she made complaints about Thomas. The defendants denied the allegations and portrayed Brown as a malcontent employee. That strategy backfired – badly. The jury awarded found that the Thomas had indeed created a hostile work environment, and awarded Browne $6 million dollars. Interestingly, the jury assessed those damages only against MSG and Dolan. Zero damages were assessed against Thomas.
In addition, the jury whacked MSG and Dolan for another $5.6 million for their discharge of Browne after she made her complaints. The defendants have vowed to appeal.
And MSG and Dolan aren’t finished with courtrooms just yet. A New York Rangers cheerleader has sued them after being told she should look more “doable”

ALLSTATE AND STATE FARM SUED FOR CONSPIRACY - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Louisiana Attorney General, Charles Foti, recently filed suit against Allstate and State Farm, accusing the two companies of conspiring to limit payments to policyholders after Louisiana was pounded by hurricanes Katrina and Rita. The lawsuit alleges that the two companies worked together to manipulate damages estimates and to low ball claimants who suffered damages. Specifically the lawsuit alleges that the companies edited engineering reports and delayed payments, forcing policyholders to go to court to challenge estimates. In the event Mr. Foti needs any help with these varmints, he should get in touch with Mississippi Senator Trent Lott. Senator Lott recently pledged a solemn vow to go medieval on those nasty insurance companies for the way they have mistreated policyholders.

WHISTLEBLOWER VERDICT AGAINST EYE DOCTOR - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

A St. Louis county jury recently awarded a St. Louis woman $95,000 in punitive damages in a whistleblower trial Michelle Fleshner, 35, had sued Pepose Vision Institute, claiming that she was terminated by Dr. Jay Pepose because she had coooperated with a U.S. Department of Labor investigation of Pepose Vision Institute regarding wage and overtime practices. Ms. Fleshner talked to investigators on May 21, 2003. She was fired two days later. The defendant claimed Fleshner’s discharge was coincidental and that a plan had been in place for months to reduce staff.
Ms. Fleshner also claimed at trial that Pepose even managed to get her fired from a subsequent job with different eye doctors. Pepose insisted he was simply enforcing a non-compete contract that Fleshner had signed with him.
Earlier the jury had awarded Fleshner $30,000 in compensatory damages. The results of the Labor Department investigation were not revealed at the trial.

ILLINOIS WHISTLEBLOWER ACT DOESN'T IMPACT RETALIATORY DISCHARGE - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The First Appellate Court recently came down with an interesting decision involving the Illinois Whistleblower Act, 740 ILCS 174/1. In Callahan v. Edgewater Care, the plaintiff, Melissa Callahan, claimed that she was fired from her position as an admissions clerk in a nursing home for reporting activity that she felt was in violation of state law. Specifically, Callahan alleged that she was discharged for reporting to two supervisors that one of the residents was being kept in the facility against his will. After her discharge, plaintiff filed a retaliatory discharge lawsuit. The defendants filed a Motion to Dismiss, arguing that the enactment of the Whistleblower Act preempted her retaliatory case. Defendant’s Motion was granted. Ms. Callahan appealed.
The Appellate Court noted that the Whistleblower Act[effective 1/1/04] prohibits an employer from retaliating against an employee for disclosing information to a government or law enforcement authority where the employee believes the information discloses a violation of State of Federal law. The Court went on to note that a violation of the Act may result in 1) reinstatement of the employee; 2) back pay, with interest; and 3) compensatory damages including litigation fees, expert fees and attorney fees. The Defendant argued that the Whistleblower Act had, by implication, preempted existing common law remedies available to employees discharged for their activities. The Court found absolutely no support for defendant’s position and reversed the trial judge’s decision.
The enactment of the Whistleblower Act will provide some additional relief to employees who report misconduct to superiors. Traditionally, in order to prevail in a retaliatory discharge claim, an employee had to show 1) he was discharged for his activities and 2) that the discharge violated public policy. Certain courts however, were overly strict in exactly what constituted a violation of public policy and otherwise valid claims were dismissed. Now employees have another avenue of recovery available.

ILLINOIS LEGISLATION CAPPING DAMAGES BEING REVIEWED - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

On September 17, 2007, oral arguments in the lead case challenging the constitutionality of Public Act 94-677[medical malpractice caps] took place in the Courtroom of Cook County Judge Diane Larsen. The case at issue involves Abigaile LeBron, an infant. Her family is alleging medical malpractice led to her severe and permanent injuries. Lawyers on her behalf are arguing that the 2005 law placing caps on medical malpractice awards unfairly penalizes those people who are irreparably harmed due to medical errors.
Not surprisingly, the folks behind Illinois Medical Lawsuit Reform, promptly took out a page ad in local papers bashing trial lawyers and suggesting runaway verdicts had caused “out of control premiums” and led to a shortage of doctors in the state. Not so fast.
The Americans for Insurance Reform recently provided a study the found that payouts per doctor not only failed to increase from 2001-2004[the zenith of the alleged malpractice crisis]but were stable or falling. During that same time period, malpractice premiums skyrocketed. Author Robert Hunter, the Director of Insurance for the Consumer Federation of America noted “This report is proof positive that the huge medical malpractice insurance rate increases between 2000 and 2003 were not related to a jump in claims. Rather, as in the mid 1970’s and mid 1980’s, they were simply the result of insurance industry economics, supplemented by insurer hype intended to divert attention away from mismanagement by insurers the caused the crisis.” Insurers, as they have in the past, are running around moaning about malpractice, hoping to distract their insureds from looking into how they run their business.
Now the truth about doctor shortages. A recent study noted that the explanation for any doctor shortage is due to a policy instituted in the 1990’s by the MEDICAL COMMUNITY. The study noted that in the mid-90’s, the medical profession called for freezes on medical school slots, and cuts in residency funding. So let’s review. First, doctors decide to reduce the number of medical school graduates. Then they decide to defund residency programs to train the lucky few who were able to get a medical school spot. Natural result? Less doctors. And who do they blame? Lawyers of course. A perfect example of how the tort deform lobby is willing to twist the truth to pursue their agenda of restricting access to the courts. Oh, and one final twist. The study I am referring to can be found in March, 2007 Journal of American Medical Association. That’s right a medical association journal! The article describes how these policy decisions may help explain any doctor shortages.

MERCK SETTLES VIOXX CASES - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Pharmaceutical giant Merck has agreed in principle to settle all remaining Vioxx lawsuits. The company has agreed to pay $4.85 billion to plaintiffs in 27,000 pending cases. The settlement was cobbled together after juries from New Jersey to California had heard about 20 cases. In the very first case a jury awarded $253 million dollars, but Merck had prevailed in the other cases.
According to published reports, Merck’s legal bills for the Vioxx litigation were running over $600 million dollars a year. The proposed agreement has to be accepted by 85% of those persons with pending cases. Lawyers involved in the litigation have indicated they are confident the deal will be finalized. Each plaintiff will receive an amount of money commensurate with the severity of his injuries. Published reports have estimated that the remaining 27,000 cases involve 47,000 plaintiffs. On average, each plaintiff then would receive approximately $100,000. Those persons who don’t want to take the deal can pursue their own claims.
The settlement does not, however, terminate pending criminal investigations against Merck. Several states, as well as the Department of Justice, are investigating Merck’s behavior. Although Merck withdrew the drug from the market in 2004, internal Merck documents showed the Merck scientists had voiced concerns about potential adverse health consequences years earlier. In addition, a large clinical trial in 2000 raised concerns about Vioxx.
The kicker? The settlement represents less than one year’s profits for Merck.

ANOTHER SEXUAL ABUSE LAWSUIT AGAINST CHICAGO PRIEST - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Just this week, another sexual abuse lawsuit was filed against Rev. Donald McGuire, a Chicago area priest. The lawsuit, filed by two brothers, claims that McGuire sexually abused the two boys at different times. The older brother is claiming abuse from 1988 through 1994, while the younger brother is claiming abuse from 2001 through 2002.
In 2006, McGuire was convicted of molesting two boys in the 1960’s. He is currently living in Oak Lawn, a southwest Chicago suburb, while that conviction is being appealed. He was only recently advised by his superiors that he can no longer wear his collar.
AND WHO PAYS THE PRICE??
In an ironic twist, just this week I saw another article about the efforts taken by the Los Angeles Diocese to fund the $660 million dollar settlement it reached with hundreds of sexual abuse victims. The diocese has decided to sell some 50 non-parish properties. One of those properties is the convent used by the Sisters of St. Bethany, located in Santa Barbara. The convent, which was built for the order in 1952 is currently occupied by three older nuns who work with the poor in the community. Although they do not pay rent, they do make sufficient funds to sustain the property. Recently, the Diocese advised them[in a letter]that they were to vacate the premises on or before 12/31/07. The Diocese defended its action by noting that everybody was having to sacrifice. By way of example, it was noted that Diocese employees didn’t get a raise in 2007. Okay, but that doesn’t quite equate with losing your home of 50 years. And not to put too fine a point on it, but the nuns didn’t abuse any minors. Instead, that was done by 245 Diocese priests. And the unrebutted evidence indicates that for decades the Diocese didn’t act on parent complaints, didn’t call police and didn’t warn parishioners when allegations were made against a particular priest. In fact, up until 2004, parishioners were not advised of allegations against a Diocese priest even if that priest was “sent away” for psychological counselling. How many of those 50 non-parish properties that house priests are being sold??

ANOTHER VERDICT AGAINST CHICAGO POLICE - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Chicago Police Department is not having a particularly good month when it comes to lawsuits. Just a week after a 4 million dollar settlement to a man who claimed he was brutalized with a screwdriver, the Department was back in a federal courtroom in another civil case. This one didn’t work out well for the CPD either.
The case originated from a 2001 incident. An unidentified man had approached an 8 year old girl near her home and and offered to take her on a “field trip”. The girl’s mother overhead the discussion, raced outside and chased the guy away. She then called police and provided a description of the suspect. In addition, posters, which included a drawing of the suspect, were put up in the Southwest side neighborhood where the incident occurred.
The police then got a tip. Someone called in and said the guy on the poster looked like a guy he had gone to school with – Tim Finwall. Finwall was then arrested, although there was evidence he was bartending at a local tavern at the time of the incident. Finwall was placed in a lineup with four cops. The girl came in and told police the suspect could be “the short one” or the “tall one”. Not exactly a positive identification. Nonetheless, the police, in their reports, indicated that the girl had identified Finwall. Finwall was then charged with attempted child abduction. The case went to trial, and thankfully Finwall was acquitted. Interestingly, there was some evidence that perhaps the police had targeted Finwall because of an earlier incident. Apparently a police officer was drinking in the bar where Finwall worked and got into it with another patron. The officer allegedly made some threatening remarks to the patron and Finwall took the cop’s gun. Finwall was then charged with some sort of offense dealing with disarming a police officer, tried and convicted. He served no time.
After the jury heard all the evidence, Finwall was awarded $2 million in damages. The City is of course very disappointed in the verdict, and evaluating their options. Perhaps the City should carefully evaluate its options BEFORE the multimillion dollar verdict.

Toys R Us seeks to overturn $20 Million Massachusetts verdict involving inflatable slide. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

In the summer of 2006, Robin Aleo, a 29 year old married mom, was visiting relatives in Andover, Massachusetts. A pool was on the premises and Ms. Aleo decided to slide, head first, down an inflatable Toys R Us “Banzai” Pool Slide[pictured above – picture courtesy of JD Journal]. The slide partially collapsed. As her husband and daughter watched, Ms. Aleo slammed her head into a concrete pool deck and suffered a broken neck. She died the next day. A lawsuit was filed on her behalf and in 2011 a Salem, Massachusetts jury awarded Ms. Aleo’s estate $20 million in damages. The verdict included $2.5 million for anticipated lost wages; $100,000 for pain and suffering and $18 million in punitive damages.

Ms. Aleo’s lawyers argued at trial that the slide failed to comply with federal regulations enacted in 1976. Toys R Us claims that legislation only applied to rigid pool slides and not inflatable slides like the one on which Ms. Aleo had attempted to slide. Additionally, the trial court barred Toys R Us from offering any testimony that Aleo “misused” the slide by sliding head first.

On Monday, May 13, 2013, lawyers for Toys R Us will appear before the Massachusetts Supreme Judical Court and request that the trial court verdict be overturned. It is anticipated that the defense will argue that the 1976 standards should not have been utilized, and that the trial court should have allowed testimony detailing precisely how Ms. Aleo had moved down the slide. No word on when a ruling is expected.

ILLINOIS STATUTE OF LIMITATIONS EXTENDED FOR RAPE VICTIMS - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

On Monday, September 10, 2007, Governor Blagojevich signed House Bill 1462, which, under certain circumstances will extend the time period rape victims have to sue their attackers for money damages. Effective January 1, 2008, the new law will suspend the statute of limitations when the rape victim has been intimidated into remaining quiet. The new law came about in part, in response to a legal setback suffered by Woodstock, Illinois resident Jacque Hollander. Ms. Hollander says soul singer James Brown raped her at gunpoint in 1998 and threatened to have her killed if she told anyone of the rape. Hollander waited until 2005 to file suit and the case was dismissed as untimely. If no intimidation has occurred, the victim will continue to have two years to sue.

SEX ABUSE CRISIS RAGES IN VERMONT - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The story that just won’t go away.

Various news agencies carried stories on Friday about the Catholic priest sex abuse scandal that is currently rocking Vermont. In May, a jury heard allegations from a former Vermont altar boy that he was abused repeatedly by Rev. Edward Paquette in the 1970s. The jury awarded the plaintiff, now in his 40’s, $8.7 million dollars. The defendant, Fr. Paquette, had admitted in a 2006 deposition that he had been “sexually involved” with young boys at parishese in Indiana and Massachusetts before he applying for a position with the Burlington, Vermont Diocese in 1972. At the time, Fr. Paquette indicated he wanted to be closer to his parents, who lived in Massachusetts.
When Paquette applied for the Vermont position, Bishop Loe Pursley of the Fort Waye, Indiana Diocese advised Vermont Bishop John Marshall that Paquette had been accused of molesting young boys. Pursley further suggested that if the Vermont Diocese decided to take Paquette, he should be assigned to an institutional chaplaincy or a senior center, so he wouldn’t be around children. [Documents reflecting Pursley’s concerns were admitted as evidence in the trial] The Vermont Diocese however, elected to ignore that warning and assigned him to three parishes in Vermont. Paquette was subsequently accused of abusing children at each of those three parishes.
According to the victim in the recent trial, Paquette liked giving “pony rides” to the altar boys after mass. He would grope his young victims during the rides. The victim testified he was abused some 40-100 times. The victim had kept quiet for years, but decided to come forward after learning of Paquette’s history and the warnings from the Indiana Diocese.
Church officials have defended their handling of abuse claims in the 1970s by claiming that at the time, it was believed that prayer and counseling would cure priests of their attraction to little boys. It is not made clear who exactly thought that prayer would cure these perverts.
In another pathetic development, the Vermont Diocese is claiming that the verdict is covered by insurance…but they just can’t find the policy. No doubt they could find all kind of ancient documents damning divorce for example, but they misplaced the policy covering them for abusing children.
In yet another pathetic development, it was revealed that the Diocese had put each individual parish under charitable trusts two years ago, to shield them from what Bishop Salvatore Matano called “unbridled, unjust and terribly unreasonable assault.” So the Church has elected to blame not the twisted individuals who preyed upon children, but the persons who are now seeking recovery for years of abuse.
At least three additional lawsuits are scheduled to begin in August.

ILLINOIS TEACHER NEEDS TO READ UP ON BILL OF RIGHTS - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Steve and Kelly D’Allesandro are VERY angry with their son’s junior high school dean. With very good reason. They filed a federal lawsuit against the school arising out of an odd series of events last year. The saga started back in 2006 when their son Tyler, a student at a suburban Chicago junior high school, inadvertently brought a knife to school in his backpack. The knife was from his dad’s workshop and Tyler claimed he had no idea how it got into his backpack. When Tyler noticed it at school, he pointed the knife out to friend. The friend then got hold of the knife. A third boy[who Tyler did not know]grabbed the knife and allegedly brandished the knife at other students. Tyler’s friend go the knife back, and got it back in the Tyler’s backpack. Nothing else happened. Tyler went home, thinking the episode was over.
The following morning, a school parent made a complaint to Michael Brumbaugh, the Dean of the school. And this is where it gets weird. According to a lawsuit filed by the D’Allesandros, Brumbaugh rounded Tyler up and then drove him to his home. Brumbaugh then demanded that Tyler allow him to enter the home. Brumbaugh then went into the house and looked around for the knife. While he was doing so, Mrs. D’Allesandro was in the bathroom taking a shower. According to the D’Allesandros, Brumbaugh was informed that Mrs. D’Allesandro was in the shower. Not to be deterred, Brumbaugh continued searching for the knife. When he found it, he took the knife and Tyler back to school. He later called Mrs. D’ Allesandro and told her to come pick up her son at school. According to the lawsuit, he neglected to advise he had been rummaging around in the home.
Shortly thereafter the D’Allesandros complained to the school about the way this episode was handled. They were then advised that Tyler was suspended for 10 days. They continued to complain and the School District continued to ratchet up Tyler’s punishment. Ultimately, Tyler was expelled.
Should the kid be punished for bringing a knife to school? Absolutely, even if he did so unknowingly[which is hard to believe]. But should the Dean of the school be allowed to allegedly: 1) unilaterally take a kid out of school; 2) drive that kid home; 3) enter the home without permission from the homeowner; 4) search the home, again without permission from the homeowner[who, may I remind the reader, was in the shower while an adult male she likely did not know was in her home]; 4) seize evidence from inside the home; 5) drive the kid back to school and 6) never tell Mom he had done any of the above? I think not. Perhaps someone at the school could drag out a copy of the Bill of Rights[assuming the Dean didn’t suspend the Bill of Rights of course]and direct Mr. Brumbaugh’s attention to the Fourth Amendment. Specifically the language about unreasonable searches and seizures. In the event the guy loses his job, he might want to look for work with Progressive Insurance. He sounds like their type of guy.

Regus gambles at trial and loses - badly. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw an interesting article online the other day – involving a VERY large wrongful discharge verdict out of California. The verdict was against Regus the nationwide office space provider. Denise Steffens, sued back in 2010. Steffens was a long-time manager for Regus. She claimed that she had a meeting with Regus management personnel and complained that Regus was improperly denying employees rest and meal breaks. Steffens further claimed that after she walked out of the meeting, a Regional Vice President instructed underlings to “get rid of her”. Not long thereafter, Steffens was indeed fired. She alleged that her firing was in retaliation for the complaints she had aired. Regus, in response, claimed Steffens’ poor attitude brought about the termination. [For 10 years Steffens had received positive reviews and merit-based raises – so any allegations about her attitude must have been hard to make with a straight face].

Regus had somehow gotten the case tossed[no explanation as to how in the reports I read] but in June of 2012, the order throwing the case out was reversed. The case went to trial in May, 2013. The jury found for Steffens and determined that her termination was in retaliation for blowing the whistle on her employer’s failure to provide appropriate breaks. And, most importantly, the jury whacked Regus with a $4.6 million verdict. Ouch. Regus sought to get the verdict tossed, claiming legal error, juror misconduct and inadequate jury instructions. U.S. District Court Judge Larry Burns refused to overturn the verdict. His opinion included the “verdict in this case obviously came as a surprise to Regus and was probably tough to swallow.” I will bet it was.

Illinois Appellate Court carves into restrictive covenants. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Illinois Appellate Court issued an opinion last week that dramatically impacted an employer’s ability to keep former employees from going to work for competitors, or even potentially disseminating corporate information. In Premier v. Fifield , Eric Fifield was in employment negotiations with Premier Dealer Services[“Premier] , a developer and marketer of various vehicle after-market products and programs. As part of his employment, Fifield was required to sign an Employee Confidentiality and Inventions Agreement[“the agreement”] which included language that Fifeld was barred from soliciting Premier clients for two years after a separation from Premier. Fifield accepted the job and signed the Agreement in October, 2009. Not quite 4 months later, Fifield wanted out and informed Premier he was resigning. He did so two weeks later.

Fifield and his new employer filed a complaint for declaratory judgment, seeking a ruling that portions of the agreement were not enforceable. Premier filed a counterclaim seeking an order where the agreement would be enforced and Fifield barred from disseminating any Premier corporate information. The trial court ruled that the Agreement was unenforceable. Premier then appealed.

The Appellate Court first noted that restrictive covenants[the fancy legal term to describe the agreement Premier was trying enforce], were actually restraints of trade – and, as a result, would be examined closely. In order to be enforceable, the agreement must be reasonable. And one of the key actors in determining the reasonableness was whether the agreement was supported by adequate consideration – in other words, both parties got something out of the deal. Premier argued that Fifield did get something for signing the agreement – namely a job. But the Appellate Court said not so fast. Generally, Illinois Courts require the for employment to be considered appropriate consideration, the employee must be employed for at least two years. The Appellate Court noted that Fifield’s four month employment fell far short of the required two year period. The Appellate Court upheld the lower court’s decision.

The attached Crain’s Chicago Business article by Paul Merrion details how Illinois employers are more than a little ruffled by the decision and scrambling for ways to protect their interests.

Monday was NOT a good day for Walmart. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The National Labor Relations Board[“NLRB”]smacked Walmart around on Monday. Employee criticisms of Walmart practices have multiplied, and one of the more vocal critics is OUR Walmart, a nationwide group of Walmart workers. As detailed in Peter Drier’s article in The Nation, last year, OUR Walmart announced plans to protests at various Walmart stores on Black Friday, 2012 – the HUGE shopping day after Thanksgiving. In response, Walmart management threatened disciplinary action against those who participated – even though the protests were absolutely legal. In fact, David Tovar, a Walmart Spokesman ominously suggested “there could be consequences” for those workers who missed Black Friday shifts.

Some workers ignored the threats and attended protests around the country. And in June, 2013, 100 Walmart workers traveled to Walmart Annual Shareholder Meeting in Arkansas to describe abusive practices at stores. When the workers returned to their jobs, 23 found out they were terminated. Another 43 were disciplined for various reasons – despite the fact that the workers had secured authorizations to miss work.

In a statement, the NLBR noted that Walmart had “illegally threatened employees with reprisals” during two television broadcasts. Additionally, the NLRB found that Walmart had “unlawfully threatened, disciplined, or terminated” employees for engaging in lawful practices. Walmart may have to reinstate fired workers and pony up back pay.

Check out the full article, which discusses some interesting employee practices at Walmart.

Weird revelations after Oakland University fires Women's Basketball Coach - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

This one has been getting some attention online.

Beckie Francis[pictured above -thanks USA Today] was the University of Oakland Women’s Basketball coach. “Was” being the operative word. Last July she was fired – “for cause” but the precise cause had never been identified. Last week, Francis filed suit against the University. The allegations aren’t spelled out, but it appears to likely be a wrongful termination or breach of contract case. At the heart of the case is a mysterious internal report, generated by the University after an investigation into the basketball program. Francis claims she is entitled to see the entirety of the report so she can determine if the “for cause” termination was appropriate. The University however, won’t turn over the entire report but does claim Francis has been provided with “sufficient documentation.”

And there is more..last summer, several players gave interviews that were critical of Francis. One of the threads running through their complaints was that their opinions didn’t matter – because Francis had powerful allies. Specifically, those allies included Gary Russi, who happened to be married to Francis. And, also the University President. Russi retired on June 12. Francis was fired the very same day. Now there’s a coincidence.

Some of the criticisms leveled at Francis involved some allegedly unusual coaching practices, including:

– an obsession with player weights, which included taking pictures of the players in sports bras and Spandex to chart body changes;

– pushing religion on the players by making them attend church services and watch Christian-based videos on bus trips;

– emotional abuse and head games far beyond motivational methods normally used by coaches. This one is a little fuzzy for me. Who is the benchmark here – Woody Hayes? If so, the bar isn’t particularly high.

Francis just filed her lawsuit last week and already these details have leaked to the press. More undoubtedly to come. No word on whether subpar seasons the last couple of years were a factor.

Why independent medical exams are a crock. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Eric Turkewitz writes a great blog on trial work entitled New York Injury Law Blog. He had a great post yesterday detailing the ugly underside of the “independent medical exam”[“IME”] that insurance lawyers often arrange in order to dispute the severity of the injuries claimed by plaintiffs in personal injury cases. Illinois law allows for similar exams under Supreme Court Rule 215. The theory is that a respectable physician, hired by the insurance company, will conduct a thorough examination of the plaintiff and then write a completely objective, unbiased report as to his or her findings. But that rarely happens. More often than not, the designated doctor is anything but independent. He or she has been doing examinations for the same firms/carrier for years – and making a damn good buck doing it. The examination is often cursory at best and the subsequent report nearly always minimizes, or disputes the findings of the injured party’s treating doctors – who have been seeing the patient for months and or years.

As Turkewitz details in his post, Queens Supreme Court judge Duane Hart was presiding over a trial where the plaintiff has suffered a severe fracture to his ankle after falling from a scaffold. Ultimately the injury required a fusion surgery at the joint. A jury award of $1 million dollars, or more, was a possibility. So the defense, in an effort to keep those numbers down, hired orthopedic surgeon Michael Katz M.D. to perform the dreaded IME. Katz is a frequent IME flier and makes over $1,000,000 annually doing IME exams. Katz did his exam. Plaintiff’s counsel was present during the exam. And, unbeknownst to Katz, plaintiff’s counsel secretly recorded the entire exam. [Dr. Katz and plaintiff’s counsel had some previous unpleasantness between them – and the recording was made to rebut any accusations that might be made later]. The tape was never provided to the defense as New York rules do not require recording of non-parties[Katz] to be produced. Katz was later called as a witness at trial to testify as to his findings.

Then Katz came in and testified to a 10-20 minute exam of the plaintiff, during which he made a number of findings. The tape was then made known to the Court and upon review, showed an exam of less than 2 minutes. And in light of the brief exam, Judge Hart was concerned that Katz could not have made the findings to which he had testified. Judge Hart then declared a mistrial after nearly 3 weeks of trial. Another hearing was then scheduled for July 1, 2013 to decide which party and or lawyer should bear the costs for causing the mistrial. At that hearing, Judge Hart noted that he had offered Dr. Katz an option to quietly bow out of the IME business – but Katz had refused. Hart went on to note that the tape clearly revealed that Katz had spent considerable time discussing tests he had never actually performed. And, Judge Hart noted that everyone – even defense counsel, acknowledged the tape repudiated Katz’ testimony.

Judge Hart has ordered the full transcript of Katz’ trial testimony be written. Turkewitz’ article noted that Judge Hart intended to forward the matter to the Administrative Law Judge for a civil contempt hearing, and, that the matter be sent to the District Attorney with a recommendation that a prosecution for perjury be explored.

The post, which is a great read, also has a link to a transcript of the proceedings. Great work both by New York Trial counsel[not disclosed in the post] and Turkewitz for reporting the developments.

First jury trial with jurors asking questions.... - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

As of July 1, 2012, under Illinois Supreme Court Rule 243, jurors are allowed to ask questions of witnesses at civil trial in Illinois. I just completed a short jury trial about 10 days ago where I had a very inquisitive jury – they asked LOTS of questions. The whole process went fairly smoothly, in part because the trial judge had a very practical and efficient method by which he incorporated the questions. After each witness had completed direct and cross, the jury would be asked, in open court, if there were any questions. If there were questions, the jury was directed back to the jury room and instructed to write out the questions and give them to the sheriff. The sheriff then conveyed them to the judge who would read them into the record and ask for objections. If objections were made[and there were few] they were quickly ruled upon. Of approximately 20 questions, only a couple were tossed – primarily because they were phrased in such a manner that they didn’t make much sense. The trial judge[correctly] didn’t feel he had an obligation to get into a back and forth with a juror about what he or she was trying to ask.

Once the court had read the question and given counsel and opportunity to be heard, he would then reconvene the jury and ask the witness the questions. And the questions were good ones – usually inquiring about small, yet significant facts myself or my opponent had managed to overlook. This jury clearly was engaged and paying close attention to the testimony. And the process provides some early helpful insights. If the jury wants an important [i.e. helpful] fact you have omitted with earlier witnesses – be sure to elicit evidence on the issue with a later witness[assuming appropriate disclosure of course]. Probably wouldn’t hurt to work those facts into your closing as well. If the questions are inquiring about a fact that is not terribly helpful, hope like hell that your opponent is a dullard and doesn’t pick up on it. And if he or she does pick up on it, some quick thinking might be necessary to defuse the impact. As an old boss used to say, it it was easy, anyone could do it.

Lastly, Rule 243 gives lawyers some early insight into which jurors might be leading discussions after closing – and who might be sitting in the foreperson seat when the verdict is read. In my case one particular juror made sure to sit in the front row near the witness box each day[this judge let jurors sit where they pleased]. She would be the first person to raise her hand when the judge asked about questions. Before long, it appeared the other jurors deferred to her about questions. I wasn’t surprised when she took the foreperson seat after a verdict had been reached. Another jury coming up next month – I am hopeful things work as smoothly….

Disturbing allegations of police misconduct raised against LAPD. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Kim Nguyen, a 27 year old pharmacist, is raising some disturbing allegations about the conduct of two Los Angeles Police officers. Nguyen claims that she was waiting for a taxi after a night out with two friends. A police car rolled up and the officers began to question the group. According to Nguyen, the officers then declared that she was drunk, handcuffed her and placed her in the rear of the squad car. Nguyen alleges one officer climbed into the back seat next to her and groped her while the other officer drove. Nguyen also alleges she was then thrown from the police vehicle. The photo above shows Nguyen lying on the street shortly after the incident. Nguyen, who is now suing, claims that as a result of the incident she suffered brain injuries, a broken jaw and loss of most of her teeth.

The LAPD version of events is that Nguyen fell out of the car. The Police Department has not yet explained how an allegedly intoxicated woman, in handcuffs, would be able to unlock and then open a police car door. It has also not yet explained why the officer allegedly seated right next to her would allow her to do so. I very much doubt this case ever gets tried.

Saying goodbye to flame retardants - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Great article in the Chicago Tribune last Friday by Michael Hawthorne and Sam Roe. For decades, furniture manufacturers in the United States have poured pounds of toxic chemicals into their products in order to comply with a particular flammability standard out of California – specifically known as Technical Bulletin 117. TB 117 was responsible for the presence of flame retardant chemicals in countless homes across America. Now it turns out those chemicals may not have been helping. In fact, they may have been harmful.

Governor Jerry Brown of California moved to do away with TB 117 after a series of articles in the Tribune showed that chemical and tobacco concerns conducted stealth campaigns to promote the use of flame retardants – even though government research shows they really don’t provide much protection.

A new standard – to be effective in 2014, requires upholstered furniture to resist the flame of a smoking cigarette – as the cigarette is the single largest cause of furniture fires. The new standard is based upon a voluntary standard adopted in the furniture industry and a standard proposed by the United States Consumer Product Safety Comission[“USCSPC”]. The USCPSC found the specially designed furniture prevents more fires than dousing retardants on cushions and sofas.

Additionally, the new standards mean less flame retardants in furniture and in houses. And ultimately less flame retardants in the people who live in those houses and sit on that furniture. Most flame retardants chemicals use a chemical known as chlorinated tris. The same chemical was removed from baby pajamas 30 years ago when studies determined it could mutate DNA. Ugh.

And finally, in news that will shock no one, as scientists began raising concerns about flame retardants, the chemical industry blocked efforts to change flammability standards. And in order to show how deep their concerns ran, the industry trotted out a prominent surgeon to talk about all the small children burned up in these incidents. People began looking into his claims however and found out said babies were imaginary. Additionally the group that sponsored this doctor – Citizens for Fire Safety – was actually a front for several companies that made – you guessed it – flame retardant treatments.

Kudos to the Tribune

A plug for a good medical exhibits company. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Recently I was knee deep in a couple of cases where settlement appeared unlikely. One case was scheduled for trial setting in a week or so and I was scrambling around getting my ducks in a row. I had to get the evidence deposition of the surgeon who operated on my client. He is not a great witness. And I was worried about how I would properly communicate the nature of the injury and surgery. I contacted the good folks at Creative Counsel. They asked for some basic information, as well as some of the medical data, and the operative report. A couple of days later they shot me an email with the exhibit above. I was thrilled. I used it when I did the evidence dep of the surgeon. When I met the doctor before his depo, I showed him the exhibit. He took a step back and said, “Hey, this is good – who did this?” At his depo I walked him through the injury and surgery and he would point to various snapshots as he went. Don’t mind saying it was very compelling. The case proceeded to mediation[in part I think because the exhibit made the doc’s testimony better]. The mediator was also impressed. I have a trial in 2 weeks and Creative Counsel did an great depiction of that injury and surgery as well.

Bar liability extends beyond the tavern threshold. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Lots of guys have walked into bars with nothing but the best intentions – have a few drinks; watch a game; shoot a little pool – when some buffoon with a bad case of beer muscles starts trouble. I was recently hired by a young guy who was badly injured after a bar fight that may have started in the bar and resumed outside in the parking lot. Still investigating the facts, and who knows where the investigation will lead[bar fight cases always have several different versions of reality]. But one thing is certain – my client was badly injured in the parking lot, walking to his car when he got blindsided by some clown and suffered a bad injury. But he was in the parking lot, not the bar. So the bar owner isn’t responsible, right? Wrong.

In Illinois, generally a land owner/operator doesn’t have a duty to protect people from criminal activity of third parties. But there are exceptions – including the “business invitee” exception. The “business invitee exception” provides that certain businesses, including bars, have a duty to protect patrons against criminal acts that are “reasonably foreseeable”. The Osborne v. Stages case does a pretty good job of explaining the relevant law. In that case, a Linda Osborne and some friends went to see a band at a bar known as Cabaret Metro [“Metro”] located on Clark Street in Chicago. Immediately adjacent to the Metro is another bar known as the Smart Bar. The two bars are owned by the same entity[Stages Music Hall, Inc, or “Stages”] and share a hallway. One set of stairs leads to Metro, while another stairway leads to Smart Bar. Although both bars have separate entrances, the entrances are very close and both bars essentially share the same stretch of public sidewalk.

Some underage individuals[referred to as “bust-outs”] finagled their way into Smart Bar while Osborne and her friends were at Metro. The bust-outs drank and started trouble at Smart Bar and were forcibly ejected onto the sidewalk in front of the bar. The bust-outs remained on the sidewalk banging on the doors and swearing at the bouncers. By their own admission, the bust-outs hadn’t had enough – they were trying to goad the bouncers to come outside. The bouncers ignored them. Shortly after the bust-outs were ejected, Ms. Osborne and another female were leaving Metro. They had no idea what had taken place with the bust-outs or that that the bust-outs had been booted from the bar. Ms. Osborne’s friend was hassled by one of the bust-outs and Ms. Osborne went to help. At that moment, the other bust-out kicked Osborne it the face, breaking her jaw in multiple places, necessitating surgery and the placement of several plates in her jaw.

Osborne sued the Stages for its failure to protect patrons from criminal activity right outside the entrance. At trial however, Stages argued in part, that as the incident had taken place outside the bar, on the public sidewalk, it didn’t have any responsibility to protect Osborne. Additionally, Stages argued that the attack wasn’t foreseeable. The trial court granted a directed verdict for the bar owner.

Osborne appealed. The Appellate Court, in a well-written opinion, first had to determine if Stages owed Osborne any duty at all – as she was technically off premises. The Court acknowledged that some Illinois cases essentially say that once the patron leaves the bar, the bar is off the hook. The Appellate Court however, wisely declined to be that short-sighted. The Court recognized it would be foolish to hold that a bar owner’s duty to its patrons stops at the front door – especially where lots of taverns use public sidewalks to control who gets in and out. The Appellate Court determined that Stages did indeed have a duty to Osborne – even if she had left the bar.

Having decided that Stages did indeed have a duty to protect Osborne, the next issue was whether the attack was foreseeable. And that wasn’t a tough one either. As the opinion noted, the bar was aware that there were two “intoxicated, angry and combative” men right outside the bar. And the bouncers knew 1) there had already been one nasty confrontation with the bust-outs inside the Smart Bar and 2) the bust-outs wished to renew hostilities outside. The opinion noted that the bouncers threw angry drunken bust-outs onto the sidewalk and ignored them. And shortly thereafter, directed two young women into their path. Common sense dictates those young women were put at risk.

The Appellate Court correctly tossed the lower’s verdict and remanded the case for a new trial.

So that is the law that applies in Illinois. Now begins the always-fascinating journey of learning exactly what happened in a bar late at night.

David J. Beck on the vanishing jury trial. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

David Beck, a former president of the State Bar of Texas and American College of Trial Lawyers published an article in the the Texas Bar Journal in December of 2013. In it, he discussed the dirty little secret in the legal world – that there is an indisputable decline in the number of jury and non-jury trials in the United States. In the article, Beck focuses primarily on statistics from his home state of Texas – which showed a 60% decrease in civil jury trials in Texas state courts from 1968 to 2008. Those numbers are staggering – but similar numbers can probably be produced from virtually any state in the Union. What do these numbers mean? Beck contends they like mean the the concept of trial by jury will eventually disappear. And, no doubt a certain percentage of Americans would likely be thrilled. But, as Beck notes, the institution of the jury trial is important to society as whole – not just specific litigants.

A jury’s decision reflects community values. And, the shared-decision aspect of a jury likely results in better decisions. Can you imagine if an elected judge had to make each and every decision in civil and criminal cases?

Additionally, a jury bring all sorts of different ethnic, political and political philosophies together. Each of those jurors has had different experiences in life. Collective wisdom is important in reaching important decisions. Jurors typically do the right thing – and come to the right legal decision. I have been trying juries in a variety of different civil actions for nearly three decades. I can think of perhaps one case where I fundamentally disagreed with the decision of a jury. And I am including my losses.

Finally, the jury system allows everyone – including the poor – access to our system of justice.

Beck points out that fewer trials means fewer judges. And fewer trials means less appeals – which means less development and evolution of existing law. And if existing case law doesn’t evolve, it will be a helluva lot harder for lawyers to advise their clients what may happen. As a result, an aggrieved party may elect NOT to file a lawsuit and a very serious injury, or worse, might never be addressed.

To all those who cheer this development…. be careful what you wish for.

Image courtesy of meltingpot.spaa.org.

Those commissions not being paid? Illinois Sales Representative Act is your answer. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

I was recently retained by a small company that markets various telecommunications products to other small businesses. My client had signed a contract to act as a sales representative for another company[let’s call that company Slow Pay Corp.]. Slow Pay Corp sold telecommunications software. For several years, things were great – my client was making lots of sales and getting lots of commission checks. My client continued to perform well by selling lots of Slow Pay Corp hardware. But the commission checks slowed down. And of course they finally stopped. There was a substantial amount of commissions outstanding. My client was patient – he made some phone calls and promises were made. But the checks never came. So he called me.

I filed a complaint on his behalf and included the standard breach of contract count and Illinois Wage Payment Act count. I am not sure that my client counts as an employee though – a judge will make that decision. Fortunately, I stumbled across the Illinois Sales Representative Act, 820 ILCS 120/2[“The Act”]. A nice little remedy for sales pros who are not getting paid. The Act permits sales reps who aren’t getting paid to collect THREE TIMES the amount of withheld commissions. And, the Act also allows for attorney fees. So those companies that jerk sales reps around do so at their peril. They may end up owing far more than the commissions checks they forgot to write

A Do It Yourself Breathalyzer - the Alcohoot - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw a story about this thing in Entrepreneur. Biron and Jonathan Ofir were two young guys who worked together in the Safety and Logistics Division of the Israeli Defense Forces. They soon learned that vehicular accidents accounted for more military deaths than actual combat – and alcohol was often a factor in the collisions. The two men came up with an idea for a Do It Yourself Breathalyzer. But they lacked the resources to pursue it while with IDF.

After completing their tours with IDF they returned to their college studies – Biron in North Carolina and Ofir in Israel. And, they continued working on their concept. In 2011, they officially launched the Alcohoot concept – through a website[Alcohoot.com]; a video and with social media. They hoped to create some buzz and scare away competitors.

They did create some buzz – which led to over $1 million in investment money. And by April, 2013, they were prepared for a limited launch of the Alcohoot, pictured above. It is about the size of a pack of matches and fits in a purse or pocket. To use it, the drinker simply plugs it into the headset jack of his smartphone and blows into it. A Blood Alcohol Reading [BAC] then appears on your phone. The 2000 units they made available quickly sold out.

Alcohoot officially launched in late 2013. Units are available for $119 and come in black, read and white. Biron and Ofir hope that the Alcohoot leads to more responsible drinking, which hopefully will reduce the number of fatalities and injuries associated with drunk driving.

A forgetful juror. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Chicago Tribune ran an interesting article the other day involving the complications that may arise because a jury foreman forgot to disclose some important facts.

Several weeks ago a wrongful termination case concluded in the courtroom of Circuit Court Judge Jame McCarthy. In that case, attorney James Crowley had sued his former employer, Chicago State University[“CSU”], alleging he was fired in retaliation for reporting some misconduct by CSU officials. During jury selection jurors were asked[as they almost always are]if they are party to any pending litigation. Antoine Bass[who was ultimately chosen as the jury foreman] was asked the same question and indicated he was not a party to any pending lawsuits. At the conclusion of the case the jury awarded nearly $3 million dollars to Crowley.

The problem is – Bass was in fact a named defendant in a lawsuit. The other lawsuit[ironically also a wrongful termination case] was filed by a Ms. Donna Leak. Ms. Leak was the former Superintendent of Rich South School District 227. After she was terminated she sued the District as well as Bass and two other individuals. Each of the individual defendants, including Bass, were members of the School Board and sued in that capacity. Bass has indicated that because he was sued as a member of the School Board, he wasn’t required to disclose Leak’s lawsuit.

But there some additional facts that make the situation even stickier. After Ms. Leak was terminated, a relative -Mr. Spencer Leak – allegedly threatened a member of the School Board. Mr. Leak is a Board Member of CSU. And the individual he allegedly threatened was a political ally of Mr. Bass.

Jury selection can be bewildering for lawyers. Typically judges will ask some fundamental questions and then give the lawyers a limited opportunity to talk to prospective jurors. It can be a boring, repetitive process, even when done by seasoned pros. And there are as many theories on jury selection as there are lawyers. But most trial lawyers will tell you that one of their primary objectives is identifying those jurors who might be biased against their case or client – and promptly dismissing them. And most trial lawyers would certainly want to know if one of the jurors staring at them has recently had a very negative experience with someone affiliated with the client. Overturning a jury verdict due to alleged juror omissions is no small task. But this case has some compelling facts….

Injured at work? Please place your urine in this vial. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw an interesting decision recently out of the 7th Circuit. In Phillips v. Continental Tire The Americas, Jeff Phillips was a long-time employee at Continental Tire[CT]. He had worked there 23 years as a driver. CT offered a Health Services Department, that provided treatment to injured and sick employees. In April of 2010, Phillips began experiencing numbness in his fingers and went to Health Services. He advised Health Services of the numbness and his plans to file a Workers’ Compensation[WC] claim.

At the time, CT had a written substance abuse policy that drug testing was required in certain circumstances – including the initiation of a WC claim. The policy also provided that if an employee refused, his refusal would be grounds for immediate suspension and possible termination. Interestingly, a worker contemplating a WC claim could still receive treatment – if he agreed NOT to file the WC claim. So CT, in effect, would provide treatment to workers who suffered injuries at work – but only if they agreed NOT to file a WC claim. If they didn’t agree to waive that important right, not only would they have to pay for their own medical treatment, but they would lose their job as well. Not exactly arms length bargaining.

In any event, Phillips decided he wouldn’t take a drug test. Phillips didn’t think that drug testing should be linked to filing a WC claim. So he was fired. Phillips then sued CT, claiming they had retaliated against him for pursuing his WC rights. At his deposition of course, Phillips had to admit that he didn’t have any direct evidence that CT fired him because he filed a WC claim. And he admitted he was advised he had been fired because he had not submitted to the drug test. So the trial court tossed his case, saying he couldn’t prove any link between his WC claim and his firing. Phillips appealed to the 7th Circuit.

The 7th Circuit noted that Phillips had to prove causation – in effect, he had to show his firing was in retaliation for the WC claim filing. But employers have lawyers too. They rarely admit to the worker that he was canned because he filed a WC claim. And they usually don’t send fired workers an email saying, “Yeah, that whole firing thing? We did it cause you filed a WC claim and we don’t like that….hell, it had nothing to do with the drug test!” There are some Illinois state court cases that take a more liberal approach to these cases and allow plaintiffs to offer circumstantial evidence to prove causation. But unfortunately for Mr. Phillips he was in in Federal Court. The 7th Circuit agreed with the lower court and upheld the dismissal.

Illinois Courts continue to reduce landowner liability in snow and ice cases. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Prevailing on a case where a client has fallen due to snow or ice has never been a walk in the park. And Illinois Courts seem determined to make it even harder. Let’s discuss Ryan v. Glen Ellyn Raintree, et al, a recent decision out of the Illinois Appellate Court, Second District. The case grew out of injuries Mary Ryan suffered when she fell at a the Glen Ellyn Raintree Condominium Association in Glen Ellyn, Illinois. Ryan fell just outside the entrance to one of the buildings in the complex. She alleged that she slipped on a patch of ice that had formed from water dripping from an overhead awning and then freezing on the sidewalk . Water dripping onto a sidewalk and then freezing sounds dangerous doesn’t it? Especially right in front of an entrance. But hold on.

The Raintree defendants moved to toss the case on two fronts. First, they argued the common law rule that landowners have no duty to remove natural accumulations of snow and ice. Secondly, they argued that the Illinois Snow and Ice Removal Act[“the Act”] barred plaintiff’s case. The Act provides absolves property owners from liability for injuries resulting from an owner’s attempt to remove ice or snow from a sidewalk unless the conduct was “wilful and wanton” – which basically means the owner knew his conduct was likely to cause an injury. The defendants argued that that plaintiff slipped due to the defendants’ failed snow removal efforts. The plaintiff, in response said the negligence arose from an architectural feature[the overhead awning] and had nothing to do with snow removal. Plaintiff even supplied an affidavit from an architect blaming the awning for allowing water to accumulate and then freeze on the sidewalk. Seems pretty easy – primary allegations point to the awning, not snow removal. Plaintiff should win, right. Nope. The trial court agreed with the defendants and said that “….no matter how the ice was formed, defendants’ immediate or proximate negligence, as alleged by plaintiff, was in failing to remove the patch, despite their general snow and ice removal efforts…” So the trial court tossed the case. Plaintiff appealed.

The Appellate Court examined plaintiff’s complaint and the allegations of negligence. Exactly one of the eight separate allegations of negligence referred to removal of ice. The remaining allegations were general in nature or spoke to the existence of the awning and the creation of the ice on the sidewalk. Nonetheless, the Court concluded that the plaintiff alleged a lapse in snow and ice removal efforts – and then concluded the Act barred the claim.

Even before this decision lots of trial lawyers were taking a pass on snow and ice cases believing[with some justification] that courts are too quick to conclude every snow pile is a “natural accumulation”. In light of this decision, the number of lawyers who won’t take ice and snow cases is going to increase.

Condo Association's failure to repair/maintain not relevant in eviction case - according to Ill Supreme Court. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Illinois Supreme Court recently made life harder for condo owners. In Spanish Court Two Condominium Association v. Carlson, Spanish Court[“the Association”] filed a forcible detainer[i.e. eviction] action against Lisa Carlson who owned a unit in the building. The Association alleged that Carlson hadn’t paid monthly assessments for 6 months. The association wanted her out. Carlson admitted she hadn’t paid the assessments but denied they were owed. Carlson maintained that the roof hadn’t been properly maintained, which caused damage in her unit. Additionally, Carlson, alleged that while investigating a leak the Association had ruined one of her toilets – and never replaced it. As a result, Carlson felt[with some justification] that the Association had breached its maintenance responsibilities – so she wasn’t going to assessments.

In evictions actions under the Forcible Entry and Detainer Act, 735 ILCS 5/9-101, only matters “germane” to possession and or amounts owed may be considered. So the Association moved to strike Carlson’s defenses and sever her claims – on the grounds they were not “germane”. The trial court agreed and struck the defenses and severed the other claims for assignment to another judge. Then the trial court awarded possession of the unit and a money judgment to the Association.

Carlson appealed the trial court ruling on her defenses. On appeal, the Appellate Court ruled that a condo owner is permitted to withhold assessments if the association isn’t maintaining the common areas. The Appellate Court then kicked the case back down to the trial court. The Association then appealed to the Illinois Supreme Court – solely on the issue of whether a failure to maintain or repair common elements is germane in an eviction action against a condo owner who didn’t pay his or her assessments. Seems pretty simple. Assessments pay, in part anyway, for common area upkeep. If the association isn’t maintaining those areas, why should a condo owner keep paying?

The Supreme Court however, didn’t see it quite that way. The Court looked closely at the Illinois Condominium Act and decided that there are important differences between tenants and condo owners. For example when a tenant is evicted, that tenant no longer has any possessory right. But an evicted condo owner is still an owner – and still has to pay the monthly tab. And under the Act, a condo’s owner’s duty to pay assessments is NOT contingent upon maintenance of the common areas. Huh?

Bottom line? Carlson was not allowed to assert the Association’s failure to keep the place up as a defense in the eviction case. The failure of an association to maintain common areas is not a “germane” issue in an eviction case. Again, not a very good decision for condo owners.

DO NOT TRUST FIDO IN A RUNNING CAR. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw this reported in a couple of place, including Jonathan Turley’s site, Res Ipsa Loquitur. Back in 2005, a woman in Colac, Australia decided to take her 3 dogs out for a walk before running some errands. After finishing the walk she loaded two of the dogs into the rear seat of the car. She then put a third dog in the front seat. It appears the woman (never identified in the reports I read) then decided to start the car to kick the AC on BEFORE she actually got in the car. So she has three unattended dogs inside a running car. You can imagine where this is going….

The woman then apparently walked to the other side of the car and tried to get into the car. At some point the dog in the front seat bumped the hand brake. And the car started moving. The poor woman got caught in the door and dragged by the car. And, to make matters worse, she eventually go run over by the car and sustained some pretty serious injuries – necessitating multiple surgeries.

The woman filed a No Fault claim with the Victoria Transport Commission (TAC) and recovered $143,590 for her injuries. She also apparently recovered her wage loss and medical bills.

Creepy guy picks absolutely wrong jogger to grope. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

This creepy guy picked the wrong jogger to grope.

This really has little if any relation to the law, but it certainly brightened my morning. Last week a woman was jogging on a popular jogging trail on the North Side of Pittsburgh. Without warning a man attacked, grabbed the woman’s rear end and pulling her pants down before running off. The woman in question[who has not been named] also happened to be a U.S. Marshall. She was not about to put up with that nonsense. She immediately ran after the creep, identifying herself as a U.S. Marshall and yelling for other joggers to call 911. It should be noted the woman was significantly smaller than the creep.

The Marshall eventually cornered the guy, now identified as Robert Flynn in a nearby stairwell. Flynn then allegedly charged at the Marshall. Bad idea. That was his second bad idea of the day. She promptly kicked him in the groin and punched him in the face. Flynn then apparently gave up and waited for police to arrive. He is currently in custody, facing multiple charges including aggravated and indecent assault. The Marshall suffered a minor injury to her finger while fighting with Flynn. I have attached a link to the story here

Justice has been served.

What goes on behind those courtroom doors? - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

What do California judges do in Chambers? You might be surprised.

What do California judges do in Chambers? You might be surprised.
According to a recent article in the Los Angeles Times, there is lots of interesting activity in chambers – at least when it comes to a couple of California jurists. First we have Orange County Superior Court Judge Scott Steiner, a judge since 2011. He was recently censured by the Commission on Judicial Performance for engaging in sexual activity in chambers with two women. One of them his intern and the other a lawyer. In 2012, Steiner wrote a recommendation for his intern, seeking to get her a spot in the District Attorney’s office. When his intern didn’t get a second interview, Steiner called the office and asked for an explanation. Steiner admitted wrongdoing during disciplinary proceedings and was censured.

Then there is Kern County Superior Court Judge Cory Woodward. For over a year he had a sexual relationship with his court clerk, who was married. According to the article the two exchanged personal emails and engaged in sexual activity in public places[including chambers]. Woodward was also observed making a crude sexual gesture toward the woman during a break in court proceedings last year. If not for his stellar reputation[and appropriate remorse] Woodward may have been removed from the bench. He too escaped with a censure.

When I first saw the article I thought at least one of them was Judge Arnold Becker below:

Falling on a public sidewalk isn't a death knell for an Illinois Workers' Compensation Claim. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Historically in Illinois, employees hurt on the job while in an area used by the general public face a pretty good likelihood that their case will get tossed. A number of Illinois Supreme Court decisions, as well as some Appellate Court decisions, have set fort that if an employee faces the same risk as the general public[i.e. falling on a public sidewalk], well then, his injury was NOT related to his job. In Brais v. Illinois Workers’ Compensation Commission, the Third Appellate District[Kankakee] recently wrestled with this issue once again.

In Brais, the injured worker Jane R. Brais worked for the County of Kankakee as a Child Support Coordinator. Her office was in the Kankakee County Courthouse. On December 26, 2006 at approximately 11:00 a.m., she was returning to her office from a work meeting at a nearby building. Normally, County employees entered the Courthouse through a private entrance in back. That entrance however was closed at 9:30 a.m. So Brais had to enter the building through the front door[a public entrance]. She was about to enter the building when he heel caught in a crack in the sidewalk. She fell and suffered a serious injury to her left wrist. Ultimately she needed a significant piece of surgery on her injured wrist. Ms. Brais then filed a Workers’ Compensation claim.

At a hearing before the Workers Compensation Commission, the arbitrator ruled that the injuries suffered by Ms. Brais did not arise out of her employment. The basis for that ruling was because Brais had been injured on a public sidewalk. According to the arbitrator’s line of thinking because the general public faced the exact same risks entering the building, the risk was not specific to Brais’ job. The arbitrator tossed the case.

Brais appealed, first to the Illinois Workers’ Compensation Commission – which acts as the first line of appeal in Workers’ Compensation cases. Brais got no relief there – the Commission ruled the arbitrator was right. So Ms. Brais appealed to the Circuit Court of Kankakee County. The Circuit Court also agreed with the arbitrator. So Brais took her case to the Appellate Court.

The Appellate Court decision in a concise and well-written opinion, noted a number of very critical facts. First, Brais was on that cracked sidewalk because of her job. She had to attend a meeting in a nearby building. Additionally, Brais didn’t have any options. Because the employee door was locked, she had to use the front door. The Court found that it didn’t matter that the general public also used those doors. The Court found that “when an employee is injured in an area which is the only route to work, and there is hazard[like a cracked sidewalk] the hazard becomes part of the employment.” The Appellate Court overturned the decision of the Commission as well as the decision of the Circuit Court. It is nice to see employees getting a break now and again in the courts.

Pace Bus can be sued for sexual assault committed by employee. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

For ages it has been nearly impossible to hold an employer responsible when one of it’s employees sexually assaults a third party while that employee is supposed to be working. The legal principle is that employers are not liable for the acts of their employees if those acts are outside the scope of employment. And of course, sexual assault is ALWAYS outside the scope of employment.

But a recent opinion from the Illinois First Appellate District does allow for employer liability – albeit in a very limited factual situation. In Dennis v. Pace Suburban Bus the plaintiff, Janice Dennis, sued Pace Bus after being sexually assaulted by a Pace bus driver. When Dennis entered the bus she was intoxicated. During the bus ride she lost consciousness on a couple of occasions. The driver, a Jeffrey Moore, never contacted the police or medical personnel. Instead, he took plaintiff to his home. Plaintiff alleged that while at Moore’s home she was sexually assaulted. Dennis woke the next morning in Moore’s bed without any clothing. Pace moved to dismiss certain portions of the complaint, arguing that Moore was not acting in the scope of his employment when he assaulted Dennis. The trial court agreed and dismissed those portions of the complaint – and plaintiff appealed.

The Appellate Court however, said not so fast. The Court agreed that generally employers are not liable for criminal acts of employees. But, there are exceptions. In Illinois, if an employee of a common carrier[i.e. Metra; CTA, Pace] intentionally injures a passenger, the common carrier is liable – even if the employee is acting outside the scope of his employment. Therefore, Pace could be liable for intentional torts Moore inflicted upon Dennis. Pace tried another dodge – that since Dennis was at Moore’s home, she technically was not a passenger. The Court shot that down as well, noting that the assault began on the bus. Bottom line – Dennis can seek to hold Pace responsible for the sexual assault committed by its employee.

So at least when it comes to common carriers, they may be on the hook when their employees act improperly with passengers.

Employees hurt at work - beware the FMLA designation. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Family and Medical Leave Act[“FMLA”]is terrific legislation – and provides that under certain circumstances, an employee can take up to 12 weeks off per year[unpaid] without the threat of job loss. But when a worker gets hurt at work, sometimes employers use FMLA as a sword instead of a shield.

I see this quite a bit – an employee gets hurt at work and needs time off to recover. The employee then files a Workers’ Comp claim. The employer recognizes that the worker has a serious injury that would qualify him for FMLA and then designates the leave as FMLA leave – to run concurrently with time off under Workers’ Comp. Entirely legal. The FMLA designation though, places certain responsibilities upon the employee – in terms of medical certification and periodic reporting. And, if after 12 weeks leave the employee can’t perform her job because of physical limitation, FMLA does NOT require the employer to place her in a less demanding job. So some less scrupulous employers are delighted to place injured workers on FMLA leave – and when the worker can’t return in 12 weeks, they hire someone else and the employee is out of a job. And to make matters worse, some employers will then cut off Worker’s Comp benefits such as Temporary Total Disability[“TTD”] which are payments made to injured employees amounting to 66% of their weekly wage. Employees out due to injury need those payments to meet everyday household expense. To have them evaporate can be devastating.

The Illinois Supreme Court hasn’t dealt specifically with this issue, but the Interstate Scaffolding v. Illinois Workers’ Compensation Commission decision seems to make it pretty clear that the above practices have no legal support. The Court ruled that the ONLY question to consider when determining if an employee gets TTD is if that employee remains unable to return to work as a result of a work-related injury. If that employee can’t return to work, that employee should get TTD – even if terminated due to some alleged FMLA infraction.

But some employers are not particularly impressed by Illinois Supreme Court decisions. They will still try to eliminate employees who have the nerve to file Worker’s Compensation claims. Lots of unsuspecting employees hurt at work have lost Worker’s Compensation benefits because their employers used FMLA to create murky reasons for the elimination of employees. Don’t let it happen to you.

Do NOT make a Chicago Public School principal angry. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The First District Appellate Court recently issued a decision that puts a spotlight on some disturbing behavior by Chicago Public School educators. In Taylor v. The Board of Education of City of Chicago, Kenneth Taylor filed suit after his termination from his teaching position. The evidence at trial revealed that Taylor began his employment with the Board in 1990 as a teacher at Robeson High School. By 1992 he had become tenured. Later Taylor became interested in educational administration and returned to school, earning a Master’s Degree in School Leadership. Additionally he became qualified to serve as a principal or assistant principal. While teaching, he received excellent evaluations.

In 2001, Taylor was hired to serve as an Assistant Principal in at a elementary magnet school – specifically Goodlow MagnetSchool[Goodlow]. Upon taking the position, Taylor gave up his tenured status. The plaintiff had been chosen for the position by Goodlow’s principal, Patricia Lewis[“Lewis”]. Lewis had been hired under an employment contract that was governed by Board Rules. Under the Rules, a principal may serve a term up to 4 years – after which the contract can be terminated for cause. The Board allows principals, at the start of their respective contracts to select an new principal or keep the old one. Lewis retained Taylor through the initial 4 year term and again when her contract was renewed in 2005.

As an assistant principal Taylor was basically in charge when Lewis was gone. He was also placed in charged of the “school based problem solving program” – dealing with kids showing behavior issues. Taylor was also designated a “mandated reporter” – meaning he was obligated to report any reasonable suspicion of child abuse to DCFS. When CPS personnel were alleged to have abused a kid, the principal or vice-principal is to conduct a brief fact-finding inquiry with the alleged victim, alleged offender and any witnesses. The assistant principal is also obligated to contact the police and forward any incident report along with any police report to the Department of Children and Family Services[“DCFS”].

On May 16, 2007, Lewis was out of the building and Taylor was in charge. A teacher appeared and reported she had just observed a special education teacher kick a second grade student in the back of his legs, causing the student to fall and strike his head. The child had been diagnosed with ADHD and bipolar disorder and was in the problem-solving program. Taylor advised the reporting teacher that she was obligated to contact DCFS. The teacher refused. Taylor then called the Board Legal Department who instructed the teacher to report the incident to DCFS. The teacher again refused. The Legal Department then instructed Taylor to make the report.

After a brief discussion with the child, Taylor reported the incident to DCFS and the police. Taylor also created the required incident report. Taylor then contacted Lewis who was NOT happy. Lewis advised Taylor he had mishandled the situation because the teacher had been engaged in “role-playing” approved by the parent. Taylor, was not aware of any “therapy” that condoned the use of force against students.

And then, things went south for Taylor. Lewis allegedly became hostile. His performance rating was lowered. His position was reduced from Assistant Principal to Social Studies teacher[though he did not have appropriate certification to teach Social Studies]. When Taylor was suffering through back pain he took an approved 5 week medical leave. Lewis subsequently allegedly complained to the Board and indicated Taylor was AWOL. When Taylor went to the Board to complain about what he considered retaliation, the Board launched an “investigation” – which consisted of an one interview – with Lewis. The investigator concluded that Taylor’s complaints were “false”. In December of 2007 Taylor was reprimanded for making false allegations against Lewis.

In late December, 2007, Taylor’s mother died. He took a bereavement leave until early, 2008. Upon his return to class, Lewis closely observed him. She then filed a written request for emergency removal of Taylor from the school. Additionally, she then again changed his position to one where he supervised troublesome kids. In February of 2008 and May of 2008 Lewis sought to discipline Taylor for alleged infractions. In late 2008, Lewis tried to keep Taylor out of the building due to “assault charges”. Taylor said no charges were assault charges were ever made against him.

The mess came to an end in January of 2009 when the plaintiff was notified he was released from his contract with Goodlow.

Plaintiff sued the Board, alleging retaliatory discharge and a violation of the Illinois Whistleblower Act(740 ILCS 174/1). The case went to trial and the jury returned a verdict for plaintiff on both counts – for $1,000,500.

The Board appealed, claiming that Taylor could not assert a retaliatory claim because he was not an employee at will, but was instead contract employee for a definite term – i.e. 4 years. Sadly, the Appellate Court agreed. Additionally, the verdict awarded damages under the Act. But because the verdict was not clear if the damages were linked to the retaliatory count or the Whistleblower Count, the Appellate Court ruled that a new trial was necessary on damages. Hopefully Taylor’s lawyer[don’t know who he or she is but they did great work] will get another great verdict the second time.

Consumer Product Safety Commissions issues recall for "Urban Shredders" - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Last week the Consumer Product Safety Commission[CPSC] , in conjunction with Dynacraft , issued a recall for a ride-on toy known as the Urban Shredder[pictured above]. The product is battery-operated and sold in green and black(Model Nos. 8801-05 and 8801-05com) and also in red and black(Model No. 8801-15). Additionally, the toys feature Hot Wheels graphics. Dynacraft has received 17 reports of sudden acceleration. The CPSC recommended that consumers should immediately stop using the product and disconnect the battery. The toy can be returned to the point of purchase for a full refund or store credit. The recall is featured here.

Attempting to build your brand? Facebook and Twitter may be a waste of time. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw an article by Chris Gayomali at fastcompany.com that ruined my day. Gayomali wasdiscussing a recent report from Forrester, amarket research firm. The report, entitled “Facebook has Finally Killed Organic Reach. What Should Marketers Do Next?”, written by Nate Elliott. Elliot’s report examined what social relationship[read media] strategies work. And, according to both Elliott and Gayomali, Facebook and Twitter are NOT among them.

Some highlights[or lowlights if you dedicate time to Facebook and/or Twitter like I do]…

First, Facebook recently announced that it is changing the rankings of certain posts generated by lots of small businesses – like posts by a local realtor suggesting you stop by an open house. And by change, Facebook apparently means “reducing”. Those types of posts will be seen less frequently in the nearly 1.5 billion Facebook news feeds spanning the globe. Facebook claims that it surveyed users and there were lots of complaints about too many useless promotional posts in their news feed. But Facebook apparently would be happy to put that same content in feeds – if the same realtor buys an ad.

Is that a huge blow to small business folk? Maybe not, when you consider that according to Gayoli only 2% of posts by brands on Facebook or Twitter actually reach followers. And engagement rates are even worse – .07%.

Elliot suggests that brands stop making Facebook the centerpiece of their marketing efforts. By doing so, brands waste time and money on efforts that don’t deliver value. So, what should brands do instead? Email. According to Elliott, email gets delivered 90% of the time, while Facebook is at 2%. “If you have to choose between adding a subscriber to your email list or gaining a Facebook fan, go for email every time.”

Good to know. Ironically I tweeted this and will post on Facebook tomorrow

Mead Johnson facing whistleblower lawsuit over baby formula. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

As reported in Crains Chicago Business, Mead Johnson [“MJ”] a baby formula manufacturer headquartered in Illinois, is being sued for allegedly downplaying concerns about spoiled formula. Linda O’Risky, a longtime employee of the company, filed the lawsuit in federal court last week. O’Risky was the Global Product Compliance Director for MJ. Her responsibilities included insuring the company followed federal guidelines and reviewing consumer complaints.

O’Risky alleged that in early 2015 the company learned that an 8 ounce infant formula made in 2014 showed signs of spoilage due to defective seals. O’Risky says she learned of the issue in March, 2015 when she was copied on an email explaining that MJ was going to dump nearly 1 million units of the formula – due to concerns about the seal. O’Risky alleged that the formula involved had been manufactured as early as January, 2015 and that she was concerned some of the potentially spoiled formula was still on the market. O’Risky says she and MJ’s chief scientific officer tried for months to get the company to comply with relevant Food & Drug Administration guidelines. O’Risky also alleged that MJ employees investigating the matter later falsely claimed that the defective seal was not a food, safety or FDA problem because the defective seal “would be obvious to the consumer.”

Nonetheless, O’Risky persisted and ultimately reported her concerns to the JM Integrity Concern hotline. She was later excluded from meetings, and in, November, 2015, she was fired. MJ has denied the allegations in the complaint.

More email nightmares... - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

As first reported in the ABA Journal[online] a story broke yesterday about some unfortunate emails that surfaced in a legal billing dispute between DLA Piper[DLA] and a former client. DLA had been retained by energy entrepreneur Adam H. Victor[the formidable-looking man pictured above] to prepare a Chapter 11 Bankruptcy filing for Project Orange Associates, one of Victor’s companies. DLA got to work. And DLA subsequently sent Victor a substantial bill. Victor refused to pay and DLA promptly sued him for $675,000. Victor decided to fire back and filed a countercomplaint, in which he alleged that DLA substantially overbilled him. Additionally, Victor obtained over 250,000 documents in discovery, some of which contained some very unfortunate commentary by some DLA lawyers pertaining to the growing bill.

DLA partner Erich P Eisenengger noted in one email that “I hear we are already 200K over our estimate – that’s Team DLA Piper!” In another email string, DLA attorney Christopher Thomson chimed in after learning that some lawyer named Vince had been added to the Project Orange bankruptcy team: “Now Vince has some random people working full time on random research projects in standard “churn that bill, baby!” mode”. Thomson noted that “That bill shall know no limits”.

Both Eisenegger and Thomson have since left DLA and declined to comment when contacted.

DLA may claim the emails were simply off-handed comments meant as a joke. Victor at this point however, appears not to see the humor. Victor’s attorney, Larry Hutcher recently amended the counterclaim against DLA last week, adding a fraud claim and requesting $22.5 million in punitive damages.

Good rule of thumb – always assume a client and/or jury will eventually evaluate your emails.

Chicago man claims he was fired from local McDonald's franchise after missing work to be with his newborn, dying son. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Courthouse News Service detailed a lawsuit recently filed in Cook County that simply is hard to believe. Jentri Casaberry alleges in his complaint that he was a swing shift manager at a Chicagoland McDonald’s franchise. The complaint goes on to allege that on July 6, 2011, Casaberry’s girlfriend went into premature labor. Mr. Casaberry stayed at the hospital with his girlfriend throughout her labor. He would shower at the hospital, go to work, and, upon completing his shift, immediately return to the hospital. Nyeem Casaberry, plaintiff’s son was born on July 8, 2011, while Casaberry was at work. Upon hearing the news, Casaberry called his supervisor, Jacqueline Carter, explained the situation and asked is she could come into the restaurant early, so Casaberry could go to the hospital and see his son. Carter agreed to come in, and arrived at 5:00 a.m. Casaberry immediately left for the hospital.

The complaint goes on to allege that just two days after his birth, Nyeem Casaberry developed an infection, requiring transfer to the Neonatal Intensive Care Unit. According to the Complaint, Jentri Casaberry continued shuttling between work and the hospital. On July 13, 2011, it is alleged that Jentri received a text message as he was leaving work, urging him to proceed immediately to the hospital. Casaberry left work at 7:00 a.m., and went to the hospital. The complaint alleges that upon his arrival, Casaberry learned that his son had suffered a seizure and was on life support. Additionally, the complaint alleges that several specialists spoke with Casaberry and advised that his son was not going to survive. Casaberry stayed at the hospital and made arrangements for a preacher to baptize Nyeem and for family so see the child before he died. Throughout the day, doctors indicated that Nyeem was failing. At 4:30 pm, Casaberry sent a text message to Ms. Carter to inform her of developments and asked that she find someone to cover for him, and she did. The complaint alleges that Nyeem passed away at 9:15 p.m. on July 13.

The complaint goes on to allege that on July 14, 2011, Casaberry received a call from his employer. During a discussion with another McDonald’s employee, Casaberry could overhear the franchise owner, Mr. Keith Allen, Sr., speaking loudly in the background. Casaberry then asked to speak with Allen. Casaberry allegedly tried to explain what had occurred in the preceding 24 hours, but Allen allegedly responded that those developments were not his problem and that Casaberry should have reported to work. Allen allegedly also told Casaberry that he was “done” and not to “bring his black ass back to work”. Casaberrry was fired that same day. Casaberry also alleges that after going public with the firing, he received an anonymous threat that police later traced to a McDonald’s owned by Allen.

Casaberry has sued Kandice Enterprises[the owner of the McDonald’s] and Allen, the President of Kandice, for intentional infliction of emotional distress. Casaberry is represented by Alice Setrini with the Legal Assistance Foundation. In fairness, it is very early and we are only dealing with allegations. No response of any kind from the defendants was mentioned in the article. Nothing has been proven. It would be hard to imagine any employer being so callous. If however, the allegations set forth in the complaint are true, the defendants may at some point in the near future be staring down a very angry Cook County jury.

Multiple Deaths at University of Pittsburgh Medical Center possibly related to mold growth or ventilation. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

As reported at CNN.Com, there are some strange and tragic things going on at the University of Pittsburgh Medical Center [“UPMC”]. Since October, 2014, there have been five deaths that were initially attributed to heavy mold growth on linens at UPMC hospitals. The problems seems particularly prevalent in the transplant unit – where five transplant recipients died due to mold infections. UPMC commissioned a report on the mold issue in September, 2015 after the first three deaths. The resulting investigation tested areas at the hospital and at Paris Healthcare Linen[“Paris” ] – the company that provides linens to the hospital. The test results showed mold at the hospital and in nearly every single location tested at the Paris facility. The examiners found heavy fungal growth of Mucor and rhizopus on linens delivered to one of the Medical Center facilities. At the Paris facility, a heavy buildup of mold was discovered near a vent that provided air to dry linens destined for UPMC facilities. Healthcare linen providers are obligated to comply with certain standards set forth by the Healthcare Laundry Accreditation Council. The examiner who conducted the investigation did not feel Paris was meeting those standards. Despite the report, April Hutcheson of the Pennsylvania Department of Health commented that “The facts of this investigation don’t support the conclusion that the infections resulted from exposure to linens.”

In September of 2015, UPMC requested The Centers for Disease Control [“CDC”] to investigate the deaths. The CDC felt the deaths were NOT related to the linens but to ventilation issues that allowed dust and mold to enter patient rooms.

Rhizopus and Mucor mold are quite common and typically do not bother most healthy people. But they can present significant problems for immune-suppressed patients, including transplant patients or patients receiving chemotherapy.

Two of the transplant patients who died had rhizopus positive infections that required multiple sections of their lungs removed prior to their death. Despite the investigations, UPMC continues to utilize Paris to provide linens. Paris CEO Dave Stern noted the “Paris Companies consistently meets or exceeds accreditation standards and regulatory guidelines for laundering linens, which demonstrates our ongoing commitment to quality and safety. We continue to cooperate with all regulatory agencies involved in the oversight of linen processing.”.

Another mold-related death alleged at University of Pittsburgh Medical Center - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Back in February I had a post on the unnerving allegations pertaining to five allegedly mold-related deaths at the University of Pittsburgh Medical Center [UPMC] . Just recently yet another wrongful death lawsuit has been filed, claiming the linens used by the UPMC caused the death of a leukemia patient. The lawsuit, filed of behalf of Katherine Landman, is the seventh lawsuit filed against UPMC hospitals since 2014 alleging mold caused the death of a seriously ill patient. Ms. Landman was admitted to UPMC Shadyside Hospital for a bone marrow transplant. After Landman’s admission, she developed an infection from a type of mold that entered her sinuses. Doctors attempted surgery to remove the offending fungus but determined that her infection could not be cured. Landman died in October, 2015.

UPMC maintains its hospital facilities are safe and that continuing testing shows no evidence “concerning mold infections.” Paris Healthcare Linens , the linen supplier for UPMC sites, also issued a statement claiming that multiple investigations failed to demonstrate any link between the infection deaths and their linens.

In September of 2015, the Centers for Disease Control investigated the earlier deaths and indicated that the deaths were not due to the linens but instead due to ventilation issues that allowed mold and dust to enter patient rooms.

Injured Illinois bar patrons aren't limited exclusively to Dramshop recovery. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

If you do personal injury work, it is a given that at some point you will get a call from someone who got the tar beat out of him after a confrontation with a belligerent, drunken patron at some bar. What theories of recovery do you pursue? Sure, you have the Illinois Dramshop Act, 235 ILCS 5/6-21 , as one avenue of recovery. But Dramshop cases have special challenges. First you have to prove the attacker[also know as the “allegedly intoxicated person” or AIP] was drunk AND importantly, got drunk at the bar where the incident occurred. Don’t count on the bartenders or wait staff to give you much help. Those folks might be pouring drinks as a second job trying to pay the bills. They need to money and won’t be in any hurry to testify the AIP was drunk. And the bar owner will never be of assistance. [I once had a bar owner testify at trial that in 30 years she had NEVER seen an intoxicated person in her tavern. Two jurors actually rolled their eyes when they heard that portion of her testimony]. And finally, the Illinois Dramshop Act has caps on damages. Currently, the recovery is limited to only $67,356.23 to persons injured or killed as a result of a violation of the Act.

Any more appealing options? Yes – simple negligence. A dramshop theory is based on the bar providing liquor to the intoxicated patron. But a bar can be liable under general negligence principles for failing to take action after a patron gets drunk. If bar personnel are on notice the patron is verbally harassing other patrons they may have a duty to show intervene. Similarly if bar personnel are aware a drunken patron is physically harassing another patron, they may have a duty to protect that patron. If the situation continues to deteriorate the bar may have an obligation to call the police or take other affirmative steps to protect the patron. The bar’s failure to act, once personnel are on notice as to the inappropriate behavior of the drunk, may constitute negligence. It goes without saying that the facts leading up the injury will be key.

There may of course be culpability for failure to provide adequate security/bouncer personnel. That discussion merits its own post.

I couldn’t find an appropriate picture of a bar fight to include, so instead went with a photo of Sam Elliott playing Wade Garrett, the legendary but very Zen bouncer in the 1989 film Roadhouse.

The movie is only so-so. But Sam Elliott is way cool, just like he is in every movie.

Johnson & Johnson crushed with $110 million dollar verdict in baby powder case. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

This case flew under the radar given the daily onslaught of heretofore unprecedented political shenanigans. About a week ago a St. Louis jury awarded $110.5 million dollars to a 62 year old woman who claimed that her use of Johnson & Johnson baby powder caused her to develop cancer. Louis Slemp, a 62 year old woman from Wise, Virginia, blamed her ovarian cancer on daily use of Johnson & Johnson baby powder over the course of 40 years. Slemp was originally diagnosed in 2012 with ovarian cancer. She underwent chemotherapy treatment but the cancer returned and has now spread to her liver.

have been concerns for years that talcum powder usage, particularly in the groin area, may increase the risk of ovarian cancer. Talc, a key component of talcum powder, does contain asbsestos in its natural form. Asbsestos-free talc has been used in baby powder since the last 1970s. But there is a disagreement in the scientific community about the risk associated with the use of asbestos-free talcum powder. Some recent studies have concluded there is zero risk, while other studies continue to assert there is a link between routine talcum powder use and cancer.

There are approximately 2,000 lawsuits with similar allegations currently pending against Johnson & Johnson. Not surprisingly, Johnson & Johnson vowed an appeal of the Slemp verdict and disputed the science linking talcum powder usage and cancer.

Did Jerry Reinsdorf and Jim Thompson try to silence ISFA CEO? - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Ben Javorsky, of the Chicago Reader wrote a really interesting article last week about a lawsuit recently filed against former Governor James Thompson and current White Sox owner Jerry Reinsdorf. The plaintiff, Perri Irmer, is alleging that the two men colluded to have her fired from her job as CEO of the Illinois Sports Facility Authority[“ISFA”]. The IFSA, founded in 1987, is a governmental entity that oversees the renovation and construction of sports facilities for Illinois professional sports teams.

As Javorsky notes in his article, back in the mid-80’s, Reinsdorf was making noise about moving the Sox to Tampa Bay unless the City agreed to build a new stadium to replace aging Comiskey Park. At the time, Jim Thompson was Governor and Harold Washington was Mayor of the City of Chicago. Neither one of them were anxious to be remembered as the politicians who allowed the Sox to flee south. So the pols got together and not long thereafter a stadium deal was muscled through the General Assembly. According to the Javorsky article, Illinois taxpayers financed the construction of a new stadium for the White Sox, now known as The Cell. The legislation called for 100% public financing of the new stadium. Construction was started in 1989 and The Cell opened in 1991. IFSA was designated as the owner and operator of the stadium – but the White Sox collected most of the revenue generated at ball games. That was the arrangement for nearly 20 years and no one made any noise.

In 2004, Perri Irmer was named CEO of the ISFA. A couple of years later, she started to make some noise. In 2008, through Irmer’s efforts, the ISFA persuaded the White Sox to start paying rent [$1.2 million a year] for use of the park. Additionally, Irmer was backing development of a restaurant and related shops across from the ballpark – which would generate additional funds that would be earmarked for the State. But that never happened. Instead, in 2011, “Bacardi at the Park” an upscale restaurant opened up right across from The Cell. Construction of the restaurant itself cost about $3.2 million, while infrastructure upgrades were another $3.7 million. Once again, that $6.9 million was paid by Illinois taxpayers. But the State gets NONE of the profits from Bacardi at The Park. According to most reports, Governor Thompson signed off on those details back in the 80’s when the original legislation was being cobbled together. When all this came to light recently, local media asked Governor Thompson to explain how anyone who allegedly was representing the interests of Illinois taxpayers, could ever sign off on such a one-sided deal. Thompson replied, “We said to Jerry, “Jerry, can we have part of the profits?” And he said no. We said, Ok. I’ve known Jerry for 52 years. He’s tough. He’s tough.” Oh. Okay then. That explains it. Wonder if he teaches those fierce negotiating techniques to new lawyers at Winston & Strawn?

Getting back to the lawsuit, the suit alleges that Reinsdorf, unhappy with having to pay rent, then lobbied former Governor Rod Blagojevich to dump Irmer from ISFA. And, the suit alleges, in December of 2008, a top Blagojevich aid told Irmer that Reinsdorf was unhappy and Irmer was road kill. The suit also alleges however, that Irmer was told that if she played nice and “resigned” there would be a cushy job for her in the private sector. But Blago got indicted and had other things on his plate. So the ISFA renewed Irmer’s contract.

Flash forward to 2011. The suit alleges Perri showed up at work one day and discovered she was locked out of her office. Thompson was waiting for her, and summoned her into a conference room where he told her she could resign or be fired. Additionally, he allegedly told her that if she didn’t resign, and forced the ISFA Board to fire her, her reputation would be “ruined”. Irmer refused to resign. Two day later she was fired. The lawsuit alleges that Irmer was fired because the powers that be wanted her quiet and didn’t appreciate her efforts to protect Illinois taxpayers.

Thompson won’t comment and Reinsdorf says the suit has no merit. We’ll see. Irmer is represented by Carmen Caruso and Linda Chatman.

Lastly…interesting piece of trivia….guess who threw out the first pitch at the Grand Opening of The Cell in 1991? Answer: Jim Thompson.

Chicago Bears pushing Illinois Senate Bill that dramatically cuts players WC benefits. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

There were some fireworks a week or so ago when the President of the NFL Players Association [“NFLPA”]DeMaurice Smith went after the Chicago Bears for the club’s support of Senate Bill 12 SA #2. The bill would have a huge impact on Workers’ Comp benefits paid out to injured athletes. 12 SA #2 is sponsored by Christine Radogno[R-Lemont] and would adjust certain provisions of the Workers Compensation Act as it applies to professional athletes. Specifically, the bill precludes professional athletes from securing wage differential awards after the age of 35. Wage differential awards come into play when a worker suffers a serious injury that prevents him or her from returning to pre-injury employment. If that occurs, the injured employee is entitled to 2/3 of the difference between what the employee would have made[assuming no injury] at the old job and whatever the injured worker earns in a new position. And, currently, the Act allows the lost income benefits to be paid to the injured employee until age 67.

The proposed bill would exempt professional athletes from recovering wage differential awards after 35. The backers of the bill argue that professional athletes rarely play beyond 35[don’t tell Tom Brady] so paying out on the award until age 67 is unfair and too expensive. The Bears[along with the Hawks, Cubs, Whites Sox and Bulls] maintain that statistically, a professional athlete will be done playing before he or she hits 30.

Richard Gordon, a lawyer and lobbyist for the NFLPA argues that professional athletes generate untold millions of dollars for team owners. And, Gordon argues, the injured athlete will may suffer injuries that plague them for the remainder of their lives. For example – Dick Butkus, pictured in his playing days above and now in his 70’s – still has a noticeable limp due to knee injuries he suffered while playing for the Bears. And consider the Bears approach in light of the growing list of players diagnosed with chronic traumatic encephalopathy[“CTE”]. The damage done by CTE might not be discovered for years after a player retires. Finally, Gordon points out that a significant percentage of professional athletes aren’t millionaires[i.e. minor league baseball players] and the bill would unduly prejudice those athletes that suffer debilitating injuries but never make big money.

This issue is becoming a hot button topic throughout the country as a number of states bar or restrict professional athletes from wage differential awards.

Smith insisted that if the bill passes the NFLPA will tell free agents to avoid the Bears and pursue contracts with teams in states where the Workers’ Comp laws are more favorable. Ouch. The Bears, on their own, have given free agents plenty of reasons to avoid Chicago. The absolute last thing the Bears need is a red flag from the NFLPA.

Disturbing allegations as lawsuits pile up alleging Roundup causes cancer. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

In 2015, the International Agency for Research on Cancer[IARC] a part of the World Health Organization, published its findings after looking into the carcinogenicity of five common pesticides. One of the pesticides examined – glyphosate – is a primary ingredient in Roundup – a pesticide made by Monsanto that anyone with a garden knows about – and likely uses. Those gardeners may want to rethink that.

The IARC Report concluded that plyphosate is probably carcinogenic to humans. Not surprisingly, regular users of Roundup who also suffered from cancer, began filing lawsuits. Lots of lawsuits. Currently there are 800 cancer patients suing Monsanto. They are claiming that Monsanto failed to warn users about the cancer risk affiliated with glyphosate. Monsanto of course denies any proof and points to a separate study by the Environmental Protection Agency’s Cancer Assessment Review Committee that declared that glyphosate is not likely to cause cancer in humans. But the credibility of the EPA report is very much in question. First, it appears the EPA didn’t even consider the IARC report, as the EPA report was issued months before the IARC published their findings. And there have been allegations in some of the legal proceedings that Jess Rowland, the former Head Honcho of the EPA Pesticide Programs was involved in efforts to “kill” ongoing glyphosate studies linking it to cancer. Even more troubling are allegations that Rowland, shortly before leaving the EPA indicated to Monsanto that he “…could be useful to Monsanto as we move forward with ongoing glyphosate defense.” The EPA, it would seem, should be interested only in assessing whether certain herbicides cause cancer – and if so making the public aware. Playing “defense” on behalf of a herbicide manufacturer certainly raises some serious questions.

Tim Litzenburg’s law firm represents more than 500 of the patients suing Monsanto. He said that most of the patients had no knowledge of the link with glyphosate until the IARC came out with its report. And he noted that the lawsuits do not allege simply that that glyphosate alone caused the cancers. Litzenburg explained that “Roundup contains animal fats and other ingredients that increase the carcinogenicity of the glyphosate.” Let me break that down a bit. The plaintiff are alleging that not only did Monsanto manufacture a pesticide that included a cancer-causing agent. Monsanto added other ingredients that increased the carcinogenic impact of that agent.

Monsanto of course claims that glyphosate has a long history of safe use and does not pose any unreasonable risk to human health when used properly. And they cite to hundreds of studies demonstrating that glyphosate is safe.

I would be interested in knowing precisely how many Monsanto executives currently use Roundup in their well-tended gardens. I would bet not very many. Probably just coincidence.

Roundup releases new no-spray "Precision Gel" - after study released saying key ingredient is likely carcinogenic. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

https://youtu.be/9pHijxHqBWI

Talk about curious timing.

Just last week I wrote about some disturbing allegations arising out lawsuits that have been filed against Monsanto the manufacturer of Roundup, the popular pesticide. The lawsuits started not long after the International Agency for Research on Cancer[IARC] released its findings in 2015 stating that glyphosate, a key ingredient in Roundup, is likely carcinogenic to humans. And as the lawsuits wind their way through the courts, there have been some head-scratching allegations made by plaintiffs’ lawyers about how Jim Rowland, a former EPA bigshot, indicated to Monsanto that he could be helpful in with the “….ongoing glyphosate defense” shortly before leaving the EPA.

And just yesterday, I saw this Roundup commercial. A “precision gel” where a gardener can simply touch the offending weed with some clear Roundup goop and not do any damage to soil or other plants. What the commercial doesn’t state is that the gel eliminates the need to spray. And the elimination of a spray would of course eliminate any sort of incidental exposure on the user as he or she applies Roundup in the garden. And the elimination of that exposure would probably be very helpful if that IARC report turns out to be accurate and glyphosate is a carcinogenic agent. Or the release of a non-spray Roundup product shortly after the IARC study could just be a big, crazy coincidence. Gosh, who knows.

Ford Agrees to pay $10 Million in EEOC case out of Chicago plant - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Ford Motor has agreed to pay $10.125 million dollars to resolve a United State Equal Employment Opportunity Commission[EEOC] case alleging sexual and racial harassment of of female African American workers at the Chicago Assembly Plan and Chicago Stamping Plant. The EEOC also alleged that Ford had retaliated against those workers who complained about the harassment or discrimination.

Juliann Bowman, the Chicago EEOC District Director said in a statement that “Ford Motor Company has worked with the EEOC to address complaints of harassment and discrimination at these two facilities and to implement policies and procedures that will effectively prevent future harassment or provide prompt action when harassment complaints arise.”

Ford spokeswoman Kelli Felker said Ford settled the matter to “…avoid an extended dispute.”

The money will be paid to Ford employees found eligible for funds under a claims process the parties established.

Abbvie hit with enormous and unusual verdict for misrepresenting AndroGel Risks. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Lauraann Wood reported on this surprising and highly unusual verdict in the Chicago Daily Law Bulletin last week. Mr. Jessie Mitchell, an Oregon resident, filed suit against Illinois pharmaceutical company Abbvie alleging that Abbvie purposely downplayed the serious side effects and health risks posed associated with Androgel – a testosterone replacement therapy for men.

By way of background, the United States Food and Drug Administration[“FDA”] approved Androgel in 2000 to treat men suffering from hypogonadism – difficulty or inability to produce testosterone. At that time there were approximately 5 million men suffering from hypogonadism.

Mitchell alleged that after the FDA approval, Abbvie coordinated a massive advertising campaign to market Androgel and convince men they suffered from low testosterone or “Low T”. Abbvie, as part of the campaign, came up with an online “Is it Low T?” quiz and encouraged consumers to take the quiz. But Mitchell alleged the “quiz” wasn’t particularly authoritative. First, Mitchell alleged that the quiz was created by a doctor in exchange for a $40,000 grant. Mitchell further alleged the doctor came up with some of the questions while occupying a bathroom stall, writing the questions on toilet paper. He then had his assistant type them the next day. The doctor later admitted that he had “…no trouble calling it a crappy questionnaire.” Wood’s article didn’t address whether that testimony was heard by the jury. If it was heard in open court, it had to be devastating.

And some of the questions on the quiz – example: “Are you sad and/or grumpy?” were simply too vague to elicit any meaningful information or point to Low T. But the campaign, according to Mitchell, created a previously non-existent market for the drug. By 2003, just three years after approval, 20 million men were taken Androgel.

Mitchell alleged that while Abbvie had successfully created a previously non-existent market – it failed to properly warn consumers about Androgel’s downsides – which include an enormously increased risk of heart attack in certain patients. Mitchell himself suffered a serious heart attack in 2012. Additionally, in 2009, the FDA issued a warning that children who were secondarily exposed to Androgel could suffer serious health consequences.

Mitchell had sued for compensatory damages arising out of his heart attack and punitive damages for Abbvie’s misrepresentation of the risks associated with Androgel. But the jury did not award Mitchell any compensatory damages for that claim. Abbvie lawyers were likely happy about that. But that happiness was short-lived. Because the jury did award damages to Mitchell on his fraud claim.

The jurors awarded $150 MILLION dollars to Mitchell to punish Abbvie for misrepresenting the health risks. Congratulations to Troy Rafferty of Pensacola, Florida who represented Mitchell. Not easy to take on a pharmaceutical giant on a fraud claim and win. Well done.

The Takata Air Bag victims will never be fully compensated. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Interesting juxtaposition of stories over the last couple weeks relating to the Takata air bag disaster. I had a previous post on this mess.

First, in late June, Takata Corporation filed for bankruptcy protection in light of the exposure it faces due to its defective airbags, which resulted in numerous deaths and serious injuries. The company filed for Chapter 11 protection in the United States and Japan. Takata listed more then $10 billion in liabilities including claims from Honda and Toyota growing out of the their use of Takata airbags. “We were facing a severe situation and weren’t able to wait any longer,” said Takata Chairman Shigehisa Takada. The company will be purchased by Key Safety. The purchase will exclude the assets and operations related to the Takata’s manufacture and sale of ammonium nitrate air-bag deflators. Those deflators degrade over time and result in uncontrolled explosions sending metal debris and shards in driver’s faces. Inexplicably the inflator operations will continue to be run by Takata after the sale but will eventually be shut down.

In January, 2017, Takata admitted to hiding the risks associated with the airbags for 15 YEARS. Ultimately the company agreed to a payment of $1 billion dollars after a US criminal investigation.

And just weeks later, on July 10, 2017, another fatality caused by the exploding airbags was announced. The victim, who was not identified, was working on a 2001 Honda Accord at a Florida area home. The victim activated the airbag inflator and the bag ruptured. The individual died the next day. There have been 12 United States deaths associated with the faulty airbags and 17 worldwide. And countless severe facial injuries.

Of the $1 billion paid in by Takata in the fraud settlement, $850 million will go to automakers. Lawyers hired by the the victims of the defective airbags estimate that their clients will receive only 5-10% of what their case is actually worth as a result of the bankruptcy. That number may tick up slightly depending on what Key Safety pays for the company assets, but just compensation will never occur.

New law says Illinois businesses can't stop bad online reviews through gag clauses. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Illinois Governor Rauner recently signed a law that prohibits businesses from enforcing “non-disparagement” or “gag” clauses in contracts for the sale or lease of consumer goods. The gag clauses are typically placed in the Terms and Conditions portion of the contract. Why there? Simple. Consumers don’t read Terms and Conditions. The purpose of the gag clauses is to strip an unhappy customer of the right to air his grievance on Twitter, Yelp, TripAdviser or any of the dozens of similar sites that offer “Reviews” sections for consumers.

Hotels frequently use gag clauses as do some retailers, moving companies and even dentists. Steve Stadelman, the sponsor of the bill felt that the explosion of social media requires that consumers have some degree of protection when they take to the keyboard to describe just how awful that burrito was.

The legislation tracks the Consumer Review Freedom Act that President Obama signed in 2016. The new law, which is now part of the Illinois Consumer Fraud and Deceptive Business Practices Act, allows consumers who are get harassed for online reviews to sue for damages and attorney fees.

The bill passed unanimously in both the Illinois House and Senate.

Businesses can, however, still sue for defamation is a consumer posts a review that is untrue.

Trump Administration moves to strip victims of nursing home neglect of their right to sue. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

As recently reported by Robert Pear in the New York Times, the Trump Administration is moving forward on its promise to strip victims of nursing home neglect of the right to pursue justice in courtrooms. For years, nursing homes have included “no sue” arbitration clauses in the documents patients [or their loved ones] sign upon admission of the patient to the nursing facility. At the time of admission the clause is buried in reams of paperwork that sick people, or their worried loved ones, sign in order get the patient admitted. The clause is rarely mentioned and never discussed. But when the patient suffers a serious injury at the nursing home due to neglect, and files suit, the nursing home quickly moves to dismiss the lawsuit, citing to the same buried clause. The Obama Administration however, argued that sick, elderly patients needing long-term residential care often were not in a position to give fully informed consent to such clauses.

So in 2016, President Obama signed a Centers for Medicare and Medicaid Services[CMS] rule which precluded nursing homes from enforcing arbitration clauses if the nursing home accepted Medicare or Medicaid – and LOT of them do. So for a brief moment, the playing field was level. But it doesn’t look like it will stay level.

The Trump Administration is moving to scrap the 2016 Obama CMS rule, arguing it imposes “unnecessary or excessive costs on providers” of nursing home care. Trump administration spokesmen noted that the arbitration agreements are “….advantageous to both providers and beneficiaries because they allow for the expeditious resolution of claims without the costs and expense of litigation.” The money spent on lawsuits could be better spent on patient care – or so goes the argument. Nursing home interests of course are thrilled.

Patient advocates, predictably, are not. Attorney Generals from 16 states have issued strong protests against the implementation of the Trump rule. Additionally, 31 senators have objected to the Trump rule. They argue, as Obama did in 2016, that patients don’t fully understand the arbitration language in the contract so they cannot be viewed as knowingly consenting to it. Additionally, patients seeking admission to nursing homes often have little choice, as loved ones cannot provide appropriate medical care on an around the clock basis. The nursing home is in a considerably superior position, dealing with a patient who has two choices: 1) sign the contract and get access to appropriate medical care or 2) return to the home of a loved one without appropriate medical care, physically deteriorate and likely die.

In an effort to alleviate the harsh consequences of the bill, the Trump administration came up with some requirements that allegedly protect patients. One such requirement calls for the arbitration clause to be explained so that the patient understands it. But even nursing home interests acknowledge the proposed requirements were hopelessly vague.

In his last speech, Sen Hubert Humphrey (D. Minn) remarked in part that the moral test of a society is how it treats those in need, including the elderly or infirm. The proposed Trump rule fails that test.

Hurt on the job while hooping? Might be a Workers Comp case. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Great decision out of the First District Appellate Court last year on an interesting Workers Comp issue. In Calumet Sch. Dist #132 v Ill. Workers’ Comp. Comm , Jonathan Jordan[ironic this guy was named Jordan] was a science teacher at Calumet Middle School. Teachers at that that school were expected to attend and participate in afterschool activities which involved student participation. Jordan’s principal told him about an afterschool basketball program that the school ran in order to reward students who were performing well and staying out of trouble. Students were allowed to play in games against the teachers. Although Jordan thought the basketball games were a great idea he was reluctant to play for fear of injury. Additionally, Jordan was not a basketball player.

The principal first told Jordan about the basketball games a few weeks before Jordan agreed to play. Jordan did not agree to play and did not give any commitment to playing in the future. The principal asked Jordan again. Jordan was was again non-committal suggesting “….maybe another time.” Jordan was hoping the principal would take a hint and stop asking. No such luck. The principal asked Jordan a third time to play and Jordan agreed. You can probably guess where this is going…..

Before getting to the game though, a couple of important facts. At the time the principal was after Jordan to play, Jordan had not yet received a contract to teach the following year. He also had not received his annual review. Jordan was concerned his repeated refusals to play might hurt his review or impact the decision to renew his contract. Although he was not ordered to play, Jordan did feel some pressure to participate in the games.

While playing, Jordan attempted a jump shot but fell awkwardly onto his left arm. He suffered a serious fracture which required internal fixation surgery. He then filed his Workers’ Compensation case.

At trial, the school district asserted that Jordan was involved in a “voluntary recreation activity” – and, thereby precluded from making a Workers Compensation recovery. The arbitrator, to her credit, didn’t buy that and found for Jordan. The School District appealed the arbitrator’s decision to the Commission but were shot down. The School District then took the case to the Circuit Court of Cook County. The court determined Jordan was involved in a “voluntary recreation program” and barred from recovery.

Jordan’s lawyer, a good guy and good lawyer by the name of Evan Hughes[in the interest of full disclosure Evan is a friend, and former suitemate of mine] wasn’t having it. He appealed the Court’s decision to the First District Appellate Court. Evan’s brief must have been very persuasive. Because the Appellate Court swatted the School District’s arguments away just like Dikembe Mutombo swatted away all those shots in the NBA. The Appellate Court emphasized that Jordan was not a basketball player and had repeatedly declined invitations to play. The Court also wisely noted that Jordan was justified to feel some pressure as his contract had not yet been renewed, nor had had annual review been completed. The Appellate Court concluded that Jordan did not participate in the game for his own enjoyment – and was thus not involved in a “voluntary recreational program”. Well done Evan!

Again, appropriate of nothing, I have some video of a guy who, unlike Jordan, did think he could play. Phillip Seymour Hoffman in Along Came Polly – a marginal movie from a couple years ago. Hoffman however, was great – as he was in everything. Hearing him yell “White Chocolate” on a ill-conceived drive to the hoop justifies spending 30 seconds of your life watching this video.

$417 Million awarded to plaintiff in Johnson & Johnson talcum powder case just months after $110 million dollar verdict. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

On Monday, a Los Angeles jury returned a stunning $417 million dollar verdict against Johnson & Johnson in another case claiming that Johnson & Johnson baby powder led to ovarian cancer. Eva Echeverria had claimed that she used the baby powder on a daily basis from the 1950s until 2016. She was diagnosed with ovarian cancer in 2007. The verdict is the largest sum awarded to date in a series of talcum powder lawsuits against Johnson & Johnson.

Echeverria claimed that Johnson & Johnson failed to adequately warn consumers about the potential cancer risks associated with talc – one of the key ingredients in their baby powder. The jury awarded $68 million dollars in compensatory damages and $340 million in punitive damages. Mark Robinson, Echeverria’a attorney stated that the Johnson & Johnson had “…many warning bells over a 30 year period” about the potential link between talc and ovarian cancer, but failed to warn consumers.

In a recent post I discussed another talcum powder large verdict – $110 million – recently returned against Johnson & Johnson by a St. Louis jury in May. And in 2016, Missouri juries awarded over $190 million dollars in damages in three similar cases. Two New Jersey cases were tossed out by a judge who decided the plaintiffs had failed to provide sufficient credible evidence demonstrating the link between talc and ovarian cancer. Approximately 1,000 cases have been filed nationwide, claiming the regular use of baby powder led to ovarian cancer.

The recent verdicts have to cause some concern to Johnson & Johnson, especially with hundreds of cases still in the pipeline.

Ms. Echeverria is currently receiving cancer treatment and her prognosis is not favorable, according to Robinson. He noted that Echeverria didn’t want sympathy but instead wants to help other women throughout the United States who are battling ovarian cancer under similar circumstances.

Litigators drink wine. A trial lawyer drinks whiskey and tries cases. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

In an interesting post on Above the Law, the other day, John Balestriere reported that a South Dakota Judge, Cheryle Gering, gave the following directive to some lawyers in her courtroom:

“You need to be trial lawyers. A litigator drinks wine and takes depositions. A trial lawyer drinks whiskey and tries cases.” Wow. Suddenly every trial lawyer in America wants to try cases in Judge Gering’s courtroom.

Balestriere takes it a step further and argues that if you really want to be a trial lawyer, and be good at it, you need to be a whiskey drinker. Because somehow, whiskey drinking lawyers do the following:

Focus on the big picture and don’t waste time on details no juror wants to hear about;
Understand how to use evidence to help you win at trial as opposed to impressing colleagues at lunch;
Take depositions with identifiable objectives, as opposed to simply deposing everyone residing in the western hemisphere on the day of the occurrence;
Think about how to get evidence to the jury; and
Develop a compelling narrative that is consistent with the evidence.

Mr. Balestriere doesn’t offer any empirical evidence to support any of his assertions. But there is some anecdotal evidence.

F. Lee Bailey, for example, in his prime, used to say that “…trials make me thirsty.” And he wasn’t talking about water.

And my all time [fictional] favorite lawyer, Boston’s Frank Galvin[played to perfection by Paul Newman in The Verdict ], used to enjoy a bracer before going to court in the am. And things worked out ok for Frank. It’s not everyday that the jury foreman politely inquires if the jury can award MORE than the attorney requested in his closing remarks.

Maybe Judge Gering is onto something.

Illinois Appellate Court: cab company may be liable for intentional acts of independent contractor driver. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Should a cab company be held liable when one of its drivers makes sexual advances to a passenger and then assaults her? The Illinois Appellate Court dealt with that issue last month in McNerney v. Allamuradov. The opinion is worth a read, particularly for its analysis of the negligent hiring allegations.

The underlying facts are pretty straightforward. Susan McNerney[“McNerney”] scheduled an early morning taxicab ride from her home in Winnetka to a local airport. She booked a ride from 303 Tax i – a local Chicagoland taxi company – through their website. On the ride to the airport the driver, Muhtar Allamuradov[“Allamuradov”], pulled over in a secluded area in Northbrook. He insisted McNerney join him in the front seat of the cab and she refused. Allamuradov then made repeated sexual advances that McNerney resisted. Ultimately, despite McNerney’s protests, there was some non-consensual physical contact. McNerney was able to surreptiously record portions of the assault using her cellphone. Allamuradov was criminally charged and pled guilty to battery.

While the facts leading to the assault were straightforward, Allamuradov’s employment status was anything but clear. First, there were multiple corporate entities involved – specifically Grand Transportation and 303. Grand Transportation and 303 had a Dispatch Service Agreement. Pursuant to the Dispatch Agreement, 303 provided various dispatch services to Grand and Grand was permitted to use 303 logos, colors and other identifying marks on their cabs.

Grand leased the cab to Allamuradov. The lease provided that Allamuradov had access to dispatch services through 303; credit card technology through 303 and access to 303’s voucher programs. Grand agreed to take care of routine repairs. Grand was also obligated to provide Allamuradov with a license to use “303 Taxi” identification and liability insurance. Grand had the right to terminate the lease if Allamuradov didn’t pay the lease fees or if he racked up a bad driving record.

After the assault, McNerney filed a complaint against 303, Grand and Allamuradov. She included allegations of battery, and negligent hiring against both Grand and 303 as employers of Allamuradov. She also sued Allamuradov individually and as an agent of Grand and 303. Both 303 and Grand moved to have the case tossed arguing that Allamuradov’s conduct was “outside the scope of employment.” The employers’ argument boils down to: “we didn’t hire him to assault passengers – we hired him to drive, so we aren’t responsible” – historically a pretty effective argument.

Additionally, both 303 and Grand asserted there was no evidence of negligent hiring. In fact, both 303 and Grand asserted that they did not hire Allamuradov.

303, in support of its motion offered the testimony of Baqthiar Khan their “driver coordinator.” Khan insisted that all drivers are “independent contractors” and 303 doesn’t dictate their schedule or require any documentation. 303 does not require references, or employment history. In terms of driver training, it was pretty skeletal – drivers were shown how to work the meter and basically told to be nice.

Grand offered the testimony of Sergey Rappaport, a manger for Grand and “driver coordinator” for 303. Rapport admitted that he did not request any references and made no effort to contact previous employers. Apart from flashing a drivers license, Allamuradov didn’t have to provide any other form of ID. No background check was done. Grand didn’t issue a 1099 to Allamuradov; didn’t schedule his hours or require him to report fares. When Grand learned of the assault, it terminated the lease. [As an aside, shortly before the Court ruled on the motions, 303 threw Grand under the bus and asserted that Allamuradov was an agent of Grand].

The trial court granted the motions and tossed the case. McNerney appealed.

The Appellate Court acknowledged that just because the defendants insisted they didn’t hire Allamuradov, that doesn’t end the inquiry, as Illinois Courts do recognize causes of actions against principals when they negligently hire independent contractors. The opinion went on to note that although the defendants claimed there was no red flags in the background checks performed, those same background checks were not sufficient, particularly in light of the fact that taxicabs, as common carriers, have to use the highest degree of care. The decision to throw out the negligent hiring claim was tossed.

Additionally, the Appellate Court rejected the assertion that neither Grand nor 303 owed any duty to supervise Allamuradov because they didn’t “employ” him. The Appellate Court seemed reluctant to embrace a corporate structure between two entities that absolved both of them from any responsibility to supervise their drivers. The Appellate Court went on to reverse the trial court’s decision that no agency relationship existed between Allamuradov and 303 and Grand.

Lastly, the Appellate Court reiterated that taxis are common carriers and, as a result, may be liable for intentional acts outside the scope of employment.

The decision of the lower court was reversed in its entirety.

A sip of beer leads to a burned esophagus. And a $750,000 verdict. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

This is a terrifying story. Richard Washart was dining at the McCormick & Schmicks restaurant in Atlantic City and ordered a beer with his meal. He took the first sip of his beer and things went to hell. Washart immediately began to experience a severe burning pain. He ran to to the bathroom where he became intensely ill. Severe pain in his mouth and throat made it impossible for him to even drink any water. Then he began to vomit blood. He was rushed to a local hospital where severe burns to his esophagus and stomach were diagnosed. A doctor allegedly told him that typically, patients with similar burns usually die. Washart was hospitalized for six days. Tests revealed his beer had been tainted with caustic cleaning chemicals.

Washart sued McCormick & Schmidt. Kramer Beverage Co.[“Kramer”] – the company that serviced the restaurant beer lines – was also involved in the trial. The article I saw didn’t explain if Kramer was sued directly by Washart or brought into the case by the restaurant. Kramer denied having any personnel at the restaurant on the day that Washart became ill.

After trial a New Jersey jury awarded Washart, a former police officer, $750,000. The jury apportioned fault equally between the two McCormick & Schmick and Kramer.

McCormick & Schmick’s lawyer, Steve Scheinthal was not pleased by the verdict. “There is a problem in America today when you can do nothing wrong but still be found liable for the action of another.” Scheinthal has vowed the restaurant will appeal. Scheinthal’s remarks suggest that the tainted beer was a direct result of something Kramer did or failed to do when treating the beer line[s]. If so, how is that just one beer drinker was impacted? If there had been some sort of global failure by Kramer, one would expect multiple lines to be compromised – meaning lots of bad beer. And lots of sick beer drinkers. But there was no mention of anyone else becoming ill.

Perhaps restaurant personnel, after seeing Washart become ill, immediately terminated beer sales so other diners weren’t put at risk. But it seems unlikely that restaurant staff would be able to properly identify the problem so quickly.

Try not to think about this story the next time you order a beer.

Trump Administration goes with Sgt Schultz approach to legal donations. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

This troubling development got some coverage today – but not enough. The United States Office of Government Ethics[OGE] has quietly reversed an internal ruling that has, for decades, prohibited White House staffers from accepting anonymous donations to help pay legal fees. Now government employees can solicit and accept money from people that until this reversal, were specifically prohibited from donating money to them. Lobbyists, interest groups and other personnel affiliated with entities that have “business before the government” can donate cash to staffers. But, they have to do so ANONYMOUSLY.

Not surprisingly, the reversal of policy has ethics experts concerned. Marylin Glynn, a former acting director of the OGE noted that “You can picture a whole army of people with business before the government willing to step in and make the debt go away.” Back in 1993, during the Clinton administration, a decision was made that such donations while technically legal, were morally questionable, and OGE advised staffers to refuse any such donations.

I have sympathy for the lower level staffers who have been dragged into the Russian investigation. A Vanity Fair article today noted that legal fees for an individual who gives a single interview to the FBI could run as high as $60,000. [That fact is worthy of its own investigation – how does one interview result in a $60,000 bill?]. But even the most naive young staffer had to know that this administration would include a clown car or two of folks with elastic ethical standards. Buyer beware.

And how, precisely, in Washington DC, does the fact that certain donations were made stay private? There are, on any given day any number of events where administration personnel rub shoulders with lobbyists and special interest personnel. All it takes is a quiet word while waiting at the bar or a passing remark on the stairway. And just like that some staffer with input into policy knows that a special interest group helped him get out from under crushing legal debt. Does that staffer remember that remark the next time there is a meeting to discuss policy affecting that special interest? Probably.

Former OCE Director Walter Shaub noted “it’s very depressing. It’s unseemly for the ethics office to be doing something sneaky like that.”

As a kid I was a huge fan of Hogan’s Heroes. Sergeant Schultz was one of my favorite characters. He didn’t see anything, hear anything or know anything. Even when he did.

Fee petitions ain't bean-bag. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

A recent case out of Pennsylvania serves as a cautionary tale for attorneys seeking attorney fees pursuant to statute. The case, Clemens v. New York Central Mutual Fire Insurance Company was a “bad faith” case – where the plaintiff alleges the insurance carrier did not act appropriately in evaluating and/or resolving a claim. The case was tried to a jury from November 2, 2015 to November 6, 2015. Judge Malachy Mannion was the trial judge. Plaintiff prevailed at trial and was awarded $100,000. A couple of weeks later, counsel for plaintiff, [Michael J. Pisanchyn, Jr. and Marsha Lee Albright hereinafter “counsel”] submitted a fee petition seeking over $1.1 million for their work on the case resulting in the verdict and a companion case. After additional submissions and a hearing on the fees, Judge Mannion essentially denied the petition. The opinion, which is 100 pages long, shows, in painstaking detail, that Mannion dove deep into the petition and carefully examined the entries. Most 100 pages opinions go unread. But this opinion offers a couple valuable lessons when it comes to fee petitions.

Lesson 1 – Know your audience.

It would be an understatement to say that Mannion and Pisanchyn didn’t see eye to eye during the trial. On 75 occasions during the trial, Pisanchyn was admonished for his conduct. Mannion also noted in his opinion that Pisanchyn “…demonstrated an astonishing lack of familiarity with the Federal Rules of Civil Procedure as well as a complete disrespect for the rulings of the Court, the likes of which this court has never experienced.” Wow. One doesn’t often see that kind of personal commentary in legal opinions. Perhaps it was warranted. Perhaps not. What can’t be denied though, is that a fee petition will, under most circumstances go to the Judge who presided over trial. If trial counsel is averaging 15 daily admonishments during a five day trial, said counsel likely won’t have a lot of goodwill built up with the judge when it comes to the fee petition.

Lesson 2 – Fee Petitions are like witnesses – the good ones have credibility.

Trial counsel has an obligation to show that the requested fees are reasonable. The Court, in reviewing the submissions, noted that there was no evidence that the billing records were kept contemporaneously with the work performed – so the time logs had to be “reconstructed.” Oops. “Reconstructed” is not a word you want associated with your car, mobile phone or fee petition. It raises eyebrows. It means that at least some of the petition is not based on hard data but memory and scraps of paper or emails. “Reconstructed” is to be avoided.

Judge Mannion was also troubled that attorney Albright[the only witness who testified at the fees hearing for counsel] indicated that she reconstructed all the time for all lawyers and that the hours logged were her “”guess” as to hours spent on the case based on data extracted from the case management/billing software. “Guess” is not a word that witnesses should use. Judge Mannion demonstrated in his opinion that he didn’t really embrace the “guess” approach.

The petition listed 29 hours drafting 5 motions in limine. The opinion noted that there were actually only 4 motions, none of which was complex.

Lastly counsel’s petition including days where 20-22 hours were spent on “trial preparation.” In a particularly pointed comment, Mannion noted “Given the relatively straightforward nature of this case and the underwhelming performance of counsel at trial, the court finds the hours billed for trial preparation to be outrageous and abusively excessive. As such, the court will disallow all fees requested for trial preparation.” Ouch.

Lesson 3 – Words Matter.

Judge Mannion also problems with the verbiage counsel used in the billing records. There were 53 separate entries for paralegal services [20 hours] described as “file maintenance”. Those hours were tossed. Judge Mannion had similar issues with billing 15 minutes for “receipt of materials” – like an email. And the Judge tossed “e-mailing” time entries – citing Pennsylvania law that email is “purely clerical.” That comment is a bit outdated and ignores the prevalence of email in communications these days. But the better approach – particularly if the time entry is substantial – is to describe, what the email contained.

The time logs also contained several hours for paralegal services described merely as “other”. “Other” is low hanging fruit and will never be sufficient. Even if the judge likes you.

“Attorney Review” – with no indication of what was reviewed or why, got the boot.

And finally, 43 hours for Bates Stamping. That is alot of stamping. Mannion, to his credit, at least had a sense of humor. He noted that if the time spent on “maintenance” had been used for stamping, those hours could have been dramatically reduced. He authorized just 8 hours.

Lesson 4 – Proofreading can be your friend.

Mannion’s opinion, cites example after example where there are separate but identical time entries on the same day. All duplicative entries were struck. Similarly, the entry for “Draft of Motion and Brief in Support” – when no motions were filed by counsel at the time – was stricken. An entry for 24.5 hours for Motion in Limine revisions after the motions were filed was also stricken.

A Exhibit List reflected over 7,000 pages of documents. Mannion noted that the documents referred to be counsel totaled 229 pages.

Lesson 5 – Respect Must be paid.

To paraphrase Finley Peter Dunne, “fee petitions ain’t bean bag.” They should be carefully prepared, and vetted to insure the petition complies, in all respects with the prevailing law. If not, the consequences could be dire. Mannion concluded that the fee petition was “woefully deficient” and disallowed 87% of the hours billed. He went on to comment that “…whether the deficiencies of the petition are the result of gross negligence or some level of fraud upon the court, the court is convinced that the hours billed are not just excessive, but outrageously excessive.” The fee petition was denied. And, Mannion referred the matter to the Disciplinary Board of the Supreme Court of Pennsylvania.

Pisanchyn has commented that he didn’t think the petition was unreasonable, given nine years of litigation, noting “The defendants took the position of scorched earth litigation, and we had to go toe to toe with them every step of the way.”

This opinion for some reason reminded me of a truly bad movie – And Justice for All, featuring a young Al Pacino[pictured above] as a crusading criminal defense attorney trying to obtain some level of justice in the criminal courts of New York. Generally unwatchable, save for a truly epic Pacino courtroom meltdown scene, where he rages “You’re out of order,” at virtually everyone in the building.

The dreadful reality faced by women in lower paying jobs. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Claire Bushey had an excellent article in Crain’s Chicago Business a couple weeks ago detailing the awful reality female workers endure in lower paying industries. Just a few of the dreadful statistics noted in the article:

About 60% of women say they have been sexually harassed – typically at work;
Minority women more likely to be targeted;
According to a Unite Here Labor Union survey of 500 women, nearly 60% of female workers in hotels are sexually harassed and almost 80%[!] of the women in casinos.

Worth a read.

Wilful violation NOT required for "missing witness" instruction per Illinois Appellate Court. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Second District Appellate Court handed down an important decision recently dealing with the failure to produce evidence. In Meeks v. Great America LLC , the plaintiff, Shatoya Meeks, was enjoying a day at Hurricane Harbor Water Park. While riding a water slide, Ms. Meeks suffered very serious injuries to her hands and wrists. She filed a lawsuit alleging that the defendant negligently operated the water slide and failed to properly inspect it. During pretrial discovery, plaintiff’s counsel requested the names of the dispatcher and other personnel who were running the water slide at the time of the occurrence. Great America indicated initially that they could not be identified. [Yes, difficult to imagine, but Great America actually indicated that it could not identify the people who supervised rides that hundreds of children ride nearly every single day the park is open]. Ultimately an employee who supervised the water slide on the day of the occurrence was located. He testified that while he was on break at the time of the occurrence, he did attend to the plaintiff after her injury. Additionally, he testified he completed an Incident Report. Great America couldn’t locate the report.

Shortly before trial, Great America identified two employees who were working on the water slide of the day of the occurrence. And, it somehow located the Incident Report, as well as a Witness Statement. Plaintiff filed a motion for sanctions against Great America for its failure to timely identify the other witnesses and documents. And, as a remedy, plaintiff argued that Illinois Pattern Jury Instruction 5.01 be given at trial. That particular instruction tells jurors that they may draw negative inferences against parties who fail to produce evidence in their control. In effect, the instruction tells jurors that a defendant didn’t produce witnesses or documents because said witnesses or documents would not be helpful. The impact of the instruction can be devastating.

Great America argued that as it had not intentionally withheld the identity of the witnesses and documents, the 5.01 instruction was not warranted. The trial court agreed their behavior had not been intentional. Nonetheless, the trial court utilized a modified form of 5.01 and told the jury that Great America had failed to offer the testimony of the supervisor as well as other personnel and that Great America failed to offer certain statements. Finally, the trial court advised the jury that it could assume that the missing witnesses and documents would not be helpful to Great America.

The jury found for plaintiff and awarded a substantial sum. Great America appealed, in part, arguing that the 5.01 instruction should not have been given as their conduct had not been intentional. The Appellate Court didn’t see things that way, holding there was no requirement that 5.01 can only be given when the evidence shows the conduct was intentional or wilful.

Verdict was affirmed. Congrats to Joe Ryan who represented Ms. Meeks.

Abraham Lincoln, open windows and supposed ethical lapses. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw an excellent article in the Illinois Bar Journal by lawyers Guy Franker and J. Steven Beckett entitled Lawyer Lincoln’s Legacy – Honest Abe on Lawyer Honesty. Their article offered an interesting analysis of a supposed ethical lapse Mr. Lincoln had whilst defending a woman on murder charges. Before going much further, let me state that both Mr. Franker and Mr. Beckett have likely forgotten more about Mr. Lincoln than I will ever know. Similarly, I would wager they have a much more comprehensive understanding of Rules of Professional Conduct than I. But what the hell….

By way of background, in 1857, Lincoln was defending Melissa Goings, a 70 year old woman on murder charges. The case was tried in Metamora, Illinois, outside Peoria. Mr. Goings apparently beat his wife on a fairly regular basis. His last attempt to beat his wife did not end well for him. Melissa decided she had endured enough and grabbed a piece of firewood to protect herself. She struck her husband in the head with the firewood and Mr. Goings died. Ms. Goings was then charged with murder.

The trial, according to the article was presided over by Judge James Harriott. Again, according Mr. Franker and Mr. Beckett, Judge Harriott was doing all he could to insure a Guilty verdict. Lincoln requested a brief recess. He and Melissa walked to a first floor conference room where Melissa requested a drink of water. Lincoln opened a nearby window and advised his client there was good water in Tennessee. Lincoln then made his way back to the Courtroom – alone – and acknowledged that conversation. Not surprisingly, Ms. Goings disappeared. The following year, Lincoln convinced the State’s Attorney to drop the pending charges.

The authors conclude that Lincoln, in effect, abetted the escape of his client. Apart from Lincoln and Ms. Goings, however, no one will ever know precisely what happened in that small conference room. Maybe Lincoln made an off-handed remark that his client misconstrued. Maybe Lincoln left the room for a moment and Melissa scurried out the window. Perhaps Melissa, knowing she was being railroaded, had already decided to flee and was simply looking for the first opportunity. Without more, it seems a bit unfair to suggest Lincoln, on the basis of one remark, facilitated an escape.

The authors then conclude that Lincoln failed to act in the furtherance of justice and had an ethical lapse. And they cite to today’s rules, which, based on my admittedly rudimentary research skills, weren’t committed to writing until the 20th Century.

The year was 1857. Women were still second class citizens and wouldn’t secure the right to vote for another 63 years. Ms. Goings had been regularly abused by her husband. She finally said enough and defended herself – striking her husband just twice, according to court records. Under the current law, it seems unlikely most prosecutors would even consider a murder charge. But in what was then very rural Illinois, a husband lay dead and his wife was holding a bloody piece of wood. That added up to murder and the subsequent trial would amount to window dressing.

To make matters worse, Goings ended up before a judge who had presumptively decided she was guilty. Lincoln’s considerable trials skills were of little use. The death penalty was alive and well in Illinois in 1857. Ms. Goings was likely going to be convicted. And then she would be hanged.

Perhaps Lincoln did open that window. And maybe he did comment on the delicious water in Tennessee. By doing so, he prevented the murder conviction of an elderly, battered woman by a biased judge. And Lincoln saved the life of a woman who didn’t deserve to die. In the preamble to the current Illinois Rules of Professional Conduct, there is language that lawyers are supposed to “challenge the rectitude of official action.” Lincoln, always ahead of his time, was doing just that when he cracked that window.

The statute above, in Metamora, Illinois depicts both Lincoln and Goings. It is not often that ethical lapses are memorialized in bronze.

The Chicago way at the Zoning Board of Appeals. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Greg Hinz had a very interesting article[read it here ] in Crains a week or so ago about precisely how fruitless it is to say no to a developer in the booming Lakeview neighborhood. Hinz wrote about how one of his Lakeview neighbors, a lawyer named James Faier, was recently approached by a heavyweight zoning lawyer. The zoning lawyer represented a developer who wanted to erect a new building immediately west of Faier’s house. The zoning lawyer requested Faier agree to a variance that would allow the planned structure to come within one foot of Faier’s lot line. As in twelve inches. The zoning lawyer also wanted Faier to agree to a dramatic reduction in the rear setback. Faier said no. The zoning lawyer went to the Chicago Zoning Board of Appeals. After the developer made a minor concession, the Board ruled for the developer. Faier appealed to the Circuit Court of Cook County and lost there. Now Faier is seeking relief from the Appellate Court.

Hinz wrote how Faier sent him some fascinating data from the Board. In 2016, there were 340 variances requested at the Board level. The variance was granted outright 336 times and a partial variance was given in another case. So the people seeking variance[presumably developers] have about a 98% chance of getting it – using 2016 data. Those are pretty good odds. Chicago odds.

West Fertilizer Company - carried only $1 million dollars in insurance. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw an article about this on Jonathan Turley’s blog.

The West Fertilizer plant in West, Texas stored extremely dangerous chemicals on site. Tons of them. And, in light of the lack of any meaningful zoning laws in Texas, the plant was situated close to an elementary school; a nursing home and private residences. Finally, there have been reports of repeated break-ins as well as inadequate sprinkler systems at the plant. Add those facts up, and one would think that the plant would have layer, upon layer upon layer of insurance. But it didn’t. West Fertilizer carried a total of $1 million dollars in liability insurance. And West’s failure to have appropriate insurance coverage is not in violation of any state law. In Texas, fertilizer facilities are not required to carry insurance.

When the plant exploded last month, 15 people were killed. Most of them were first responders. An additional 200 people were injured and estimates as to property damage have run as high as $100 million dollars. And the only monies West, the cause of all that death and destruction, can offer is $1 million dollars. Lawyers for several people injured or killed in the blast have already acknowledged that it is unlikely victims of the explosion will ever obtain appropriate compensation. The photo above, courtesy of ABC News, shows the devastation after the blast.

Just days after the blast, Texas Governor Rick Perry was in Illinois, in an attempt to lure Illinois businesses to Texas. One of Perry’s talking points it that Texas is “pro-business” and doesn’t burden businesses with lots of regulations. Regulations presumably, that would require appropriate buffers between fertilizer plants and neighborhoods. Or regulations that would require appropriate insurance levels for manufacturers working with potentially deadly chemicals. Why would any state need silly regulations like that?

Is there a link between brain cancer and major league baseball? - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Is there a link between brain cancer and major league baseball? Some people are wondering, as Jere’ Longman’s recent article in the New York Times pointed out.

The Philadelphia Phillies played at Veterans Stadium from 1971 to 2003.

A number of Phillies who played at Veterans during those years have died of glioblastoma , a particularly deadly type of brain cancer. Since 2003, the following players died of glioblastoma:

-Tug McGraw, a reliever for the Phillies[age 59];

-Infielder John Vukovich[age 59];

-Catcher Johnny Oates[age 58].

Ken Brett, a pitcher, played at Veterans for only one season. He died at age 55. Some news accounts attributed his death to glioblastoma as well. And just a few weeks ago, Darren Daulton[pictured above] who led the Phillies to the World Series in 1993 passed away due to glioblastoma. He was 55.

When Daulton learned he had the disease in 2013, the Philadelphia Inquirer did an analysis of the 533 players who played for the Phillies while they played at Veterans. The analysis suggested that the cancer rate amongst those players was THREE TIMES the rate of the male population. Timothy Rebbeck, a Harvard cancer epidemiologist assisted with the study. He felt the elevated risk could have simply been chance. But he also noted that “It’s either random chance, bad luck or there is something there, but we just don’t have the science to pick it out yet.”

Longman’s article pointed out that researchers have been studying the cases for years – but at present say there isn’t sufficient evidence to state whether the string of deaths suggest some link to the stadium, or simply a tragic coincidence. Cancer clusters are very difficult to prove. “There is almost never an explanation for them,” noted Professor Rebbeck. But other players from that era are aware of the questions – and unnerved by them. Larry Bowa, who spent much of his career playing for the Phillies at Veterans noted that “I’m concerned about it. It raises your eyebrows, no question. It’s sort of scary.”

Larry Andersen, who pitched for the Phillies for several years during that ear noted that “You can’t help but think about it. It would be nice if there were some answers, if nothing else, for going forward. But nobody knows anything.”

In addition to the players noted above, number of other MLB players have succumbed to glioblastoma, all at relatively young ages. They include Hall of Fame catcher Gary Carter[57]; Bobby Murcer[62]; and Dan Quisenberry[45] . Manager Dick Howser[51] also died of the disease. Brett, Quisenberry and Howser all spent some time in Kansas City, where the ballpark had artificial turf, like the turf at Veterans. Some players have wondered whether the chemicals contained in they synthetic turf might be carcinogenic – but scientists say there is no data to support that claim.

It should also be noted that the NFL Philadelphia Eagles often practiced and played at Veterans on the same surface – but there is no data suggesting a high rate of brain cancer amongst those players.

Dr. Henry Friedman, a neuro-oncologist at Duke treated both McGraw and Carter. Friedman feels there simply isn’t enough data to draw any connection between the brain tumors and baseball. Melissa L. Bondy, a brain tumor epidemiologist at the Baylor College of Medicine in Houston feels the high rate of brain cancer amongst Phillies players seems to be more than a coincidence but more research needs to be done.

Mickey Morandini, the Phillies’ first base coach played on the 1993 World Series team. He too wonders about the connection between cancer and baseball. But he noted that if it did turn out that the elevated cancer risk is more than mere coincidence – “I don’t know if I’d rather know or not.”

Hobby for this 78 year old lawyer? Bullfighting. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

I almost missed this article by James Podger in the ABA Magazine. Glad I didn’t.

In their off hours, some lawyers like to golf. Some like to travel. And then there is Jame Pritikin.

Mr. Pritikin, a Chicago divorce attorney, has a hobby as well. He fights bulls. He discovered bullfighting while a student at the University of Illinois. He wanted to get involved then but life got in the way.

As he was nearing his 66th birthday[not a typo] Pritikin was lamenting the fact that he never got into the ring. His wife, Mary Szatkowski-Pritikin decided she had heard enough and surprised him with a two week course in bullfighting in Spain. Key fact – that was 12 years ago.

Currently 78 years old , Pritikin goes to Spain at least once a year for bullfighting. And he has the scars to prove it. In 2010, he was gored in the left leg, resulting in multiple fractures and a torn meniscus. He was on the mend for a year but got back in the ring once he got cleared.

Pritikin noted that he does avoid one traditional aspect of the sport – killing the bull. He has no desire to do so.

Oh, he has other hobbies as well. He is a licensed boxing judge and referee.

Rock on with your bad self Mr. Pritikin.

The "Alford Plea": how to make sure victims of wrongful conviction never get justice. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Megan Rose, a reporter for ProPublica, had a great op-ed in the New York Times detailing how prosecutors use the “Alford Plea” to insure that people who have been wrongfully convicted of crimes – and who have often been incarcerated for decades – never get full justice.

An Alford plea typically comes into play after facts or evidence come up after a conviction that clearly cast significant doubt on the integrity of that conviction. Those facts often involve prosecutorial or police misconduct, such as burying exculpatory evidence. When that evidence comes to light, prosecutors do not necessarily agree to simply release the accused from prison. Instead, they insist they will retry the case – unless the accused agrees to enter an Alford plea. An Alford plea in effect, acknowledges that there is evidence which suggests guilt – but the defendant maintains innocence. By doing so, the accused is allowed to immediately leave prison. But when he does, he remains convicted of the crime.

Rose writes how prosecutors insist on Alford pleas because somehow, someway, they just know the accused is guilty. And having been burned by the legal system once, the victim is likely in no particular hurry to take his/her chances with another trial. A second trial means months of additional immersion in a legal system that has already failed them. What rational human wants to jump back into that?

And Alford pleas, notes Rose, often bar the wrongfully convicted from bringing civil lawsuits. So in order to gain immediate freedom, victims have to forego their rights to make those who wrongfully imprisoned them pay money damages. In order to sue, victims have to remain in prison, while their lawyers press for a new trial Those victims who chose immediate freedom can seek pardons but that process, as noted by Rose, is heavily stacked against them.

Rose proposes that once the conviction is called into question, prosecutors are immediately taken out of the equation and the matter turned over to independent commissions or Conviction Integrity Units. A sensible suggestion, but one that prosecutors would never contemplate.

Doctors claim uncertainty - and do harm. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

I took the deposition of an infectious disease doctor the other day in a Workers Compensation matter. The doctor lets call him Dr. Smith treated my client as he lay dying in a south suburban hospital. My client – Donald – was a plumber who worked for an HVAC company in the south suburbs. By way of background, prior to his death, Dennis was not the picture of health. He had battled various addictions for years prior to getting sober circa 1997. To his credit, he had been clean since. But the years of abuse had taken a toll. He had Hepatitis C and cirrhosis.

Donald and his wife Marie had been seeing the same primary care doctor[“PCP”] for years. After Donald died, the PCP contacted Marie and suggested she contact a lawyer. He explained that Donald had died of Legionnaire’s disease, a respiratory disease similar to pneumonia caused by the Legionella bacteria. The bacteria is usually inhaled from a water source. And, the PCP explained further that plumbers and other trades who routinely work around standing water, are at greater risk. Finally, the PCP explained that since Donald had been a plumber, AND that no one else in their household was sick, exposure had taken probably taken place at work. So Marie called me. After reviewing the appropriate medical records I filed the case.

I spoke with Donalds primary care doctor who told me that while he was convinced Donald had been exposed at work, he couldnt provide appropriate causation testimony. He had seen Donald prior to his hospitalization. At that time, Donald had signs of a serious respiratory disease. When antibiotics didnt help and his condition worsened, the PCP had Donald admitted, and turned his care over to the Infectious Disease specialist.

The lawyer for the employer is an honorable guy. He told me that while the medial records strongly supported a work exposure, the insurance company wanted more. So I agreed to subpoena the Infectious Disease doctor, who I presumed would provide strong causation testimony. I hadnt made that assumption lightly. In his treatment notes, Dr. Smith routinely noted that the patient worked as a plumber. And he repeatedly noted that no one else in the family was sick. Those notes suggested to me that Smith felt exposure had taken place at work.

Shortly after the subpoena was issued, I got a call from a lawyer at a prominent medical malpractice firm. I was informed he would be representing the doctor at his deposition. Those phone calls are rarely good news. Under Illinois law, the patients lawyer is permitted to discuss certain issues with the doctor before the deposition. Once the doctor hires a lawyer, there are no informal meetings before the deposition. And, invariably, a doctor who has lawyered up for his deposition is sending a very clear message “Dont count on me to help.”

On the day of the deposition, the doctor walked in at the appointed hour with his lawyer. The first thing I noticed was how young he looked. He looked more like a college sophomore than a infectious disease specialist. And early on, he was agreeable. He acknowledged the bacteria breeds in warm water and can exist in hot water tanks, air conditioning units and showers. And he confirmed that no one else in Donald’s family had become ill. And, he acknowledged that Donald’s work as a plumber would be a risk factor for exposure to the bacteria.

Then came the million dollar question did he think the exposure to legionella was work-related? He had no opinion. And he based his lack of opinion on the fact that sometimes people get exposed to legionella while working out at a health club. He testified that Donald could have been exposed while at a health club – either in the shower, hot tub or sauna area.

That testimony was absurd. With all due respect to Donald, the next time he entered a health club would have been the FIRST time Donald entered a health club. Donald stood about 5’10” and weighed nearly 275 lbs. He had high blood pressure and was borderline diabetic. Donald was not a health club guy. And to make matters worse, the doctor likely knew that. I pressed him and he acknowledged that during his treatment of Donald, he was never advised that Donald went to health clubs. But Dr. Smith wouldnt budge. He was NOT going to concede causation.

Why not? The doctor faced no legal jeopardy. All he did was provide excellent, state of the art treatment to a very sick man. The group he was affiliated with faced no legal jeopardy, nor did the hospital. An honest answer would have simply strengthened the case against the appropriate party the employer. And the employer is appropriately sheltered by Workers Compensation insurance.

Maybe he was a true believer, one of those doctors blinded by the propaganda put out by tort reformers. They mistakenly believe that medical malpractice filings are increasing and driving physicians out of Illinois. And as a result, some doctors have decided that they will never knowingly assist a personal injury lawyer and if possible, do what they can to submarine a case. Their omerta against personal injury lawyers however, is entirely misguided. The number of medical malpractice lawsuits filed in Illinois has dropped 32% since 2003. And, the number of doctors in Illinois involved in patient care has been steadily increasing since 2006.

The involvement of lawyers representing doctor/witnesses shouldnt be overlooked. That practice, to my recollection started in earnest around 15-20 years ago and appears to be the norm today. The lawyer meets with the doctor before the deposition and properly instructs the witness not to offer sweeping or unsubstantiated opinions. Do those same lawyers instruct doctors to refrain from offering appropriate causation testimony? I think most good defense lawyers leave the causation issue up to the doctor. Some of my more cynical personal injury colleagues think otherwise.

I don’t have the answer for why a doctor would would hesitate to give what appeared to be pretty obvious testimony. One fact however, cannot be argued. A doctors refusal to confirm an obvious causation link does indeed do harm to a patient and his family.

The little snippet I have provided is from Malice, an otherwise forgettable 1993 film. But this scene is worth watching, as Alec Baldwin, in all his malevolent glory, as a doctor with a God complex, melts a lawyers face.

Judge sleeps during a murder trial and Illinois Appellate Court is fine with it. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Imagine a criminal trial where the defendant is charged with four separate counts of first degree murder. Then imagine that while a detective is testifying regarding some videotape evidence, defense counsel notices that the judge is ….. asleep. Sounds like the opening scenes from Law and Order. But that exact scenario played out in a Whiteside County, Illinois courtroom not long ago. The saga is detailed in this Appellate Court opinion – People v. Sheley, 2017 IL App (3d) 140569 -.

After the videotape concluded, defense counsel noticed the judge was sleeping. Defense counsel then woke the judge. Shortly thereafter, defense counsel properly made his record, where he noted that the judge – Judge Jeffrey O’Connor – had fallen asleep. The Appellate Court opinion indicates that defense counsel noted that he had observed Judge O’Connor sleeping before, but the specifics are not provided. The State’s Attorney, acknowledged on the record that he too had observed the judge sleeping. Judge O’Connor didn’t deny falling asleep. He simply commented that he had no physical issues the might impair him and allowed the trial to move forward.

The next day the defense appropriately asked for a mistrial because O’Connor had been falling asleep. The motion was denied and the defendant was convicted. The defense sought a new trial, citing the fact the judge had fallen asleep more than once, and appeared to be confused. O’Connor’s ruling on that motion is a study in deflection. First, he noted, apparently in his defense, that he only fell asleep once. O’Connor then goes on to voice his displeasure with the fact that the local press had the nerve to point out that he had fallen asleep during a murder trial. O’Connor characterized the motion as “disgusting” and denied it. The defendant appealed the guilty verdict.

The Third District Appellate Court didn’t exactly meet the moment. Right out of the gate the Appellate Court shrugged. The opinion noted that the mere fact the guy in charge of things is unconscious is not quite enough. Instead, the defendant has to show he was somehow prejudiced. The Appellate Court then noted that while the video was being played there were no objections made. Does the Appellate Court really wish to suggest that as long as the judge isn’t called upon to actually do something he can continue sleeping? I hope not.

And the opinion only gets worse. In a concurring opinion, one of the Appellate Judges ignores the issues and takes a cheap shot at defense counsel – declaring the lawyer waited to object in an effort to “sandbag” the judge. Good Christ. A judge falls asleep during a murder trial and and you go after the lawyer?

There was one bright spot in an otherwise immensely disappointing decision. In a dissent, Judge O’Brien noted that when a judge is asleep, that judge, by definition, loses control of his courtroom. He can’t rule on objections or stop any objectionable conduct. O’Brien argued that a sleeping judge threatens a defendant’s right to a fair trial. Additionally, O’Brien noted that by falling asleep during testimony, the judge in effect, is telling the jury that testimony is not important. But one judge out of three doesn’t carry the day. The trial court verdict was affirmed. Not a great day for the Third District.

AETNA'S unusual method for deciding if sick people get appropriate insurance coverage. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

You don’t see this level of candor very often.

Gillen Washington, a 23 year old California man, sued AETNA after the insurer denied coverage for life saving infusions that Washington needed for treatment of common variable immune deficiency(CVID). In the course of litigation, Dr. Jay Ken Iinuma, the former Medical Director for Aetna, was whistled in for a deposition.

In that deposition, Iinuma admitted that he never looked at patient medical records when deciding whether to approve or deny care. Iinuma explained that he was simply following Aetna protocol, which called for nurses to review the medical records and then make recommendations to him. To make matters worse, Iinuma admitted that he had virtually no knowledge or understanding about CVID. Iinuma also admitted he wasn’t knowledgeable about what drugs were necessary to treat CVID or what would happen to patients once the drug treatments were discontinued.

Not surprisingly, Iinuma’s testimony caught the eye of Dave Jones, the California Insurance Commissioner. Jones is now reviewing Aetna’s conduct while Iinuma served as Medical Director from 2012-2015.

A disturbing revelation but hardly unique. Years ago I represented a young woman who, along with her fiancee, applied for life insurance from a large insurance company. Not long after their marriage the husband was diagnosed with a very rare and aggressive cancer that killed him in a matter of months. When his wife sought to collect on the life insurance policy, her claim was denied. The carrier had poured over the husband’s medical records and uncovered a doctor visit where he was complaining of a routine stomach ache. The stomach ache was treated and it resolved. The carrier insisted that the stomach ache could have been a symptom of the cancer and should have been explicitly disclosed during the application process. The failure to do so, in the insurer’s view, amounted to fraud.

My firm sued the carrier on behalf of the wife. During the deposition phase, it became apparent the decision to deny the claim was made arbitrarily by a low level underwriter who had absolutely no medical background or training. The underwriter admitted that she had no basis for the denial, apart from her hunch that routine stomach ache was cancer. Not long thereafter, the carrier indicated they were very much interested in settlement.

Brafman admits what everyone suspected: he wanted to punch Shkreli in the face - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

It was all over the news recently – the saga of “Pharma Bro” Martin Shkreli merifully came to an end.

Shkreli became notorious for any number of things including jacking up the price of a lifesaving drug by 5,000% and for unrelenting internet snark directed at his critics. His smug appearance before Congress last year didn’t help either.

Shkreli was convicted of securities fraud last year and his sentencing hearing was held last week before Federal Judge Kiyo Matsumoto in New York. Shkreli’s attorney, Benjamin Brafman acknowledged during the hearing what everyone in America suspected – that he too, sometimes wanted to punch Shkreli in the face.

Shkreli’s bravado was nowhere to be seen on Friday when he tearfully admitted he was wrong and apologized to investors. Judge Masumoto sentenced him to 7 years in prison – considerably more time than defense lawyers sought but also substantially less than the 15 years prosecutors sought.

What does "knowingly" mean under the Illinois Residential Real Property Disclosure Act? - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

What exactly is the burden of proof under the Residential Real Property Disclosure Act, 765 ILCS 77/1, [“the Act”]? The operative language, found in Section 55, specifies that a personwho knowingly violates provisions of the Act is liable for actual damages, court costs and possibly attorney fees incurred by the prevailing party.

But what does “knowingly” mean? Does the buyer have to demonstrate direct knowledge that the seller knew of the defect? The Appellate Court in Kroot v. Chan, recently clarified things a bit. In Kroot, the defendant owned a home on North Claremont in Chicago. The defendant resided there from 2002 to 2011. In 2013, the defendant executed the Disclosure Report required by the Act. He denied having any knowledge of flooding or leakage problems in the basement. He also denied any knowledge of any defects in the walls or floors. You can likely guess where this is headed…

Within 24 hours of purchasing the home the plaintiffs experienced water intrusion in the basement through the walls and floors. In their lawsuit, the plaintiffs alleged that there had been chronic water intrusion into the basement, and, as a result, the defendant was likely aware of the presence of mold in the basement. Plaintiffs prevailed at trial and were awarded $64,518.67 in damages. Additionally, the trial court awarded $28,130.16 in attorneys fees to the plaintiffs. The defendant appealed, claiming that while water infiltration had occurred, he was unaware of that fact until destructive testing took place after plaintiffs moved into the home.

The Appellate Court discussed the trial evidence at length. The Opinion noted that after an pre-purchase inspection, the plaintiffs noted a discolored area along the lower portion of a wall in the basement[telltale signs of water intrusion]. They made the defendant aware of that finding. On a subsequent inspection, that same wall featured a new coat of paint. When questioned why the wall had been painted, the defendant explained the wall had been painted to make it look nice for the plaintiffs. After this issue came up, pursuant to plaintiffs’ request, the defendant again represented, in a supplemental letter, that that he had no knowledge of mold in the basement.

The trial evidence also revealed that after plaintiffs had taken possession and learned of the leaking, they retained a contractor to do necessary repairs. The contractor, during the repairs, pulled carpet and noted major water damage to the subfloor. In the contractor’s opinion, the damage had been present “for a while.” The contractor also found mold on the subfloor, rotting plywood under the carpet; moisture and mold on basement walls; standing water behind a wall plate and evidence of leakage in an area where new carpeting had been put down.

Additionally, a neighbor testified he saw water damaged carpet and a water damaged chair in the defendants garbage approximately a year before the sale. The defendant insisted however that he never saw any stains on any carpet or furniture. While the defendant admitted to hearing about discoloration on a basement wall, he testified he never saw it. Friends of the defendant also testified they had been in the basement on multiple occasions and never noticed any indication of water intrusion. In summary, the defense in this case, which I see in most of these cases, amounted to: “Sure, there was some water damage down there, but you can’t prove I knew about it.”

The trial court decided that the plaintiffs were believable while the defendant was not. And the Appellate Court, after considering the evidence agreed, affirming the trial Court’s judgment.

It appears that the plaintiffs did not present any evidence that a contractor told the plaintiff prior to the sale – “Hey, your basement leaks like a sieve” – which would be the best evidence one could have regarding a “knowing” violation.

But there was some important circumstantial evidence presented that helped plaintiff demonstrate knowledge. First, the plaintiffs observed evidence of water on a basement wall and complained about it. And that same wall was later painted over – suggesting concealment. And concealment infers knowledge of a problem. Additionally, the neighbor – a disinterested third party – offered testimony regarding water damaged carpet and furniture in the garbage shortly before the sale. That testimony certainly raises eyebrows. Finally, the contractor’s testimony regarding extensive, long-standing water damage is additional circumstantial evidence of knowledge. So while there was no direct evidence, plaintiff’s counsel, to his credit, created sufficient circumstantial evidence of knowledge to secure a verdict.

As a side note, at least one Illinois Appellate Court had suggested that the burden of proof in a case under the Act is “clear and convincing evidence” – a rung up from the preponderance of evidence standard. See Butler v. Harris 2014 IL App (5th) 130163. Trial lawyers taking these cases should bear that in mind.

The clip above is from The Money Pit, a 1986 movie staring Tom Hanks and Shelley Long. That movie demonstrated that Tom Hanks, currently one of the best actors alive, can occasionally make a bad movie.

Jim Karas - trainer to the stars - sues former employees to stop them from poaching clients. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

According to this article by Evonne Liu in Crains, Jim Karas – celebrity personal trainer [pictured above]- is going after three fitness trainers who used to work for him at Jim Karas Intelligent Fitness. Karas has filed suit to stop the three trainers from poaching his clients. Karas, who has trained Hugh “Wolverine” Jackman, Candice Bergman and Emma Thompson, is alleging the trainers violated their employment agreements with him. Karas is also alleging that the former president of Intelligent Fitness, Phillip Chung, encouraged the three trainers to jump ship and join Chung’s Practice Fitness and Wellness Coaching. Chung’s business is located only blocks from Karas’ Lincoln Park location.

Karas is also alleging that before Chung left, he formed Practice Fitness with Tom Souleles, a former Karas client. Karas also alleges that Souleles was involved in the formation, financing and planning of Chung’s venture. Karas wants an injunction preventing the trainers from soliciting, providing or accepting fitness training services from Karas clients that they had regular contact with, while employees of Karas.

Interestingly, neither Souleles nor Chung are listed as defendants in the lawsuit. Both are named only as “respondents in discovery” – meaning that Karas can get their depositions and possibly name them as defendants at a later date.

Motorola alleged to have withheld information pertaining to potential birth defects from workers. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

I receive regular emails from certain bar associations with links to recent appellate court decisions. I clicked on a link to the Ledeaux v. Motorola Inc. decision, which referred to a lawsuit filed by multiple Motorola workers on behalf of their children. The workers are alleging they were exposed to toxic products while at Motorola and their children suffered birth defects as a result. By way of background, the case arrived in the Appellate Court after a trial judge had dismissed the case after deciding plaintiffs simply couldn’t prove their cases.

The Appellate Court decision is lengthy and delves into nuanced discussions involving choice of law; the impact of the exclusivity doctrine found in most Workers’ Compensation statutes and a detailed discussion regarding proximate cause. While interesting from a legal perspective, those discussions bury the lead.

The jaw-dropping take away from the decision involves the appalling disregard Motorola allegedly displayed toward the health of its workers. At multiple manufacturing plants in Arizona and Texas, Motorola had “clean rooms” where semiconductor wafers, microchips and other internal computer components were made. The “clean rooms” were controlled environments designed to prevent contaminants from contacting semiconductor components during the manufacturing process. Certain chemicals used by workers in the “clean rooms” were toxic – and from the allegations made, it appears that Motorola knew they were toxic and didn’t advise their workers. One of the complaints alleges Motorola had studies linking the chemicals to birth defects. Additionally, it is alleged industry associations had circulated warnings to Motorola regarding the use of the chemicals. Finally, it is alleged in one of the complaints that Motorola actually tracked the incidence of birth defects in employee children. Based on these facts, and some other facts the plaintiffs had set forth, the Appellate Court found that the plaintiffs had indeed alleged sufficient facts to demonstrate Motorola had a duty to provide employees with a safe environment AND to warn employees of the risk of birth defects .

Additionally, the Appellate Court was called upon to determine if the plaintiffs could go forward with claims for wilful and wanton misconduct against Motorola. The Appellate Court noted that plainiffs had alleged: 1) Motorola had altered the collection/measurement of chemical levels in the room to show lower exposures; and 2) had failed to comply with standards and regulations to protect the workers and their offsping. Based on those allegations, the Court decided that the plaintiffs had sufficiently set forth facts establishing wilful and wanton negligence. The case will go foward. Hats off to the lawyers representing the workers for appealing the trial judge and getting the case back on track.

These cases are a long way from conclusion but this opinion likely generated significant distress at Motorola HQ

Juvenile facility staff ignores warning signs and emergency call - will pay troubled teen who suffered catastrophic injuries $18.9 million. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

[Image by Milwaukee Journal Sentinel]

The State of Wisconsin recently agreed to pay nearly $19 million to Sydni Briggs, a young woman who suffered serious brain damage after a suicide attempt at the Copper Lake School For Girls – part of a troubled Wisconsin juvenile prison system. Briggs was just 16 when she was placed at Copper Lake for breaking into a liquor store and stealing several bottles of liquor. On the evening of November 9, 2015 Briggs activated a call light which required staff to immediately respond to her room.

But staff didn’t immediately respond. Despite the fact that guard personnel could actually see into Briggs room, no one responded to the call for 24 minutes. During that time Briggs attempted to hang herself with a torn T-shirt. When prison staff finally responded, Briggs had no pulse and wasn’t breathing. She was revived with CPR and a defibrillator.

An expert determined that Briggs had been hanging for at least two and possibly as long as five minutes. Briggs’ attorney, Eric Haag noted that if guard staff had “…competently done their jobs and fulfilled basic responsibilities, this would not have happened. “

After being revived, Briggs spent 4 months in a coma. She was then moved to a rehab center and now requires a wheelchair. She has the cognitive abilities of a small child. She will require around the clock care for the rest of her life that is projected to cost at least $200,000 a year.

Months before Briggs attempted to kill herself an audit of the facility noted that prison staff routinely failed to respond to call lights when they were activated by residents. And just three weeks prior to her attempted suicide, Briggs told prison psychiatrist that she had suicidal thoughts and felt life was not worth living. Despite those warning signs, Briggs was not placed on a special monitoring schedule used for suicidal patients.

Shortly after the suicide attempt, guard personnel indicated they had been checking on Briggs every 15 minutes. An investigation however, revealed that prior to her suicide attempt, there had been a gap of 42 minutes between wellness checks.

Multiple other lawsuits are pending against the Copper Lake. The Wisconsin legislature recently passed legislation calling for the closing of the facility.

Can we put a fork in the de mimimus rule? - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The “ de minimus rule” is a great example of a how a limited legal concept gets misused and misapplied. In effect, the de minimus rule is a defense argument that is used in premises liability cases. Reduced to its simplest form, the de minimus rule says that whatever the defect was, it was too small to matter and the injured party can’t recover.

The First District Appellate Court in Barrett v. FA Group did a nice job in taking some of the air out of this overused and misunderstood concept. Let’s hope this is the first step in doing away with a clumsy rule that has become unmanageable.

In Barrett, the plaintiff, Rhonda Barrett was injured when she stepped into a parking lot pothole and fell. She sued the owners, alleging that they did not properly maintain the lot and failed to warn pedestrians of a dangerous condition. The defendants moved to toss the case. In their motion they argued that the de minimus rule says that any defect under two inches is not actionable – in other words the plaintiff cannot recover. And, they argued that in Barrett’s case, the depression that had caused her fall was only a half inch. So according to the de minimus rule, they get to skate. The trial court agreed and tossed the case and the plaintiff appealed.

The Appellate Court opinion includes a thoughtful analysis of both the de minimus rule and the evidence in Barrett’s case. First, the opinion points out that the de mimimus rule originated in personal injury lawsuits where claimants were suing municipalities . It was recognized that it simply isn’t realistic to require cities and towns to keep every square inch of sidewalk in perfect condition. Over the years Appellate Court opinions expanded the breadth of the rule and began to use it when private property was involved. The Appellate Court noted that the Illinois Supreme Court has specifically opined that there is no global mathematical formulation and the facts of each case have to be considered. Despite that specific admonition, some Appellate Courts inexplicably decided that in de mimimus cases, two inches was the magic number. So cases started getting tossed if the defect was under two inches.

The court then took a hard look at the evidence in Barrett’s case. Again, the defendants argued the height differential was only a half inch. But the Appellate Court properly noted the difference in height at the location allowed for Barrett’s two inch high heel to get stuck between the different levels. Additionally, the Appellate Court had some doubts about how the defendants concluded the height difference was minimal. And that suspicion was well-founded. The defendants had submitted an affidavit from an owner of the property, Mohammed Nofal. Nofal said in his affidavit that the height difference was only a half inch. But he didn’t explain how he got to that specific measurement. And his affidavit was drafted three years after Barrett fell. And the lot had been repaved after Barrett fell. The Appellate Court was properly skeptical about Nofal’s measurement. Despite its skepticism, the Appellate Court concluded that the depth of the pothole was between a half inch and two inches – which would still be covered by the de minimus rule.

But then the Appellate Court looked at the facts. And the Court noted that Barrett wasn’t alleging that the height change between the depth of the pothole and surrounding lot caused her fall. Instead, she was alleging that broken asphalt and/or pavement inside the pothole grabbed her heel and caused her fall. Additionally, Barrett fell at night, in an area with poor lighting. And the area where she fell featured a large pothole which contained broken up pieces of asphalt.

Lastly, the court summarily disposed of the always popular “She should have walked around it” argument, by noting that its job wasn’t to determine what plaintiff should have done.

The Appellate Court concluded that the defect in the parking lot was not de minimus. The trial court decision was reversed. Congrats to lawyers who represented Ms. Barrett.

Johnson & Johnson hammered again with $4.7 billion dollar verdict in baby powder case - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Yesterday, a St. Louis jury just absolutely crushed Johnson & Johnson again in another baby powder lawsuit. Twenty two women[and their families] filed suit claiming that the baby powder they had used for years was the source of their ovarian cancer. The jury agreed and awarded the group $550 million dollars in compensatory damages AND $4.14 billion in punitive damages. The jury entered the punitive damages award after concluding Johnson& Johnson knew that the asbestos residue in the baby powder increased the risk of ovarian cancer.

Johnson & Johnson trotted out their reps to to discuss their “deep disappointment” with the verdict and of course to complaint about a “fundamentally unfair process”. Johnson & Johnson continues to insist the baby powder was safe.

This latest result is only the tip of the iceberg. There have been other enormous verdicts but Johnson & Johnson has been able to get them overturned. There are reportedly 9,000 lawsuits making their way through the courts and that number will only increase as these verdicts generate publicity. To date, several juries have been persuaded the link between the baby powder and ovarian cancer was properly established at trial. Does Johnson & Johnson really think that appellate courts will continue to bail it out as these verdicts mount?

People are suing when family pets are injured. And the awards are increasing. Here's some insight into damages available in Illinois. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Arin Greenwood has an article in this month’s ABA Journal that is worth a read. The article discusses how juries are awarding substantial damages when pets are killed due to police misconduct. According to U.S. Department of Justice figures, 10,000 dogs are killed every year by police. And when the killing isn’t justified, lawsuits are being filed, leading to some staggering numbers. Consider:

Last year a Baltimore jury awarded $1.26 million to a family whose dog was killed after being shot by a Maryland police officer under questionable circumstances[amount later reduced to $207,500 pursuant to Maryland law];
A settlement of $885,000 in Connecticut in 2017 to a family whose dog was killed during an unlawful search;
A settlement of $226,5000 in 2016 for a Colorado family when their dog was killed by a police officer;
A $100,000 payment to a Detroit family after a police office shot a dog that was chained near a home.

Some of the recoveries described in Greenwood’s article were argued as Fourth Amendment cases involving the unconstitutional seizures of property, under 42 U.S.C Section 1983. But what about when the wrongdoer isn’t a police officer – what damages might be available to pet owners? Illinois law is not entirely clear on the damages available when pets are injured. In Leith v. Frost , an Illinois Appellate Court did discuss the damages available to pet owners after their pet Dachshund Molly was mauled by another dog. The veterinary bills for Molly were $4,784. At trial, the plaintiffs choose to put on evidence, via a breeder, that the fair market value of Molly was $200. The trial court found that that Molly was personal property and capped damages at the fair market value of $200. Plaintiffs appealed the damages award.

The Appellate Court noted that certain items, such as photos, trophies and pets have no definable market value. In determining compensatory damages to for injuries to pets, the plaintiff is obligated to demonstrate the pet’s value “…by such proof as the circumstances admit.” The Court then adopted the decision of a Kansas court and modified the damages award to include the entire cost of the veterinary services. The language in the Appellate Court decision certainly seems to suggest that larger damages awards, beyond the veterinary bills, would be permissible, if the plaintiff were to put forth appropriate evidence as to the pet’s value. Thus far, there are no reported Appellate Court decisions providing a road map as to what the evidence should include. Some potential sources of proof would be testimony as to time spent with the dog; photos or video documenting interaction with the dog; testimony from children or other family members as to their affection for the dog; and possibly testimony as to the impact that the death or injury to the dog has on family members.

Lastly The Humane Care for Animals Act, 510 ILCS 70/16.3[“the Act”] allows owners of animals to seek damages against those persons that subject animals to “aggravated cruelty” – defined as intentional acts causing companion animal[pets] to suffer serious injury or death. Damages may include, but are not limited to the value of the pet, veterinary expenses, and any other expense incurred by the owner in rectifying the emotional distress suffered by the owner. Punitive damages up to $25,000 are also permissible, and attorney fees may be recovered. At the moment, there are no reported Appellate decisions discussed the use of the Act as a civil remedy for injuries to pets.

Another jury says Johnson & Johnson talcum powder causes cancer - and awards millions in damages. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Johnson & Johnson got crushed – again – in a talcum powder lawsuit. Stephan Lanzo used Johnson & Johnson products like Shower to Shower and Baby Powder for over 30 years. Those products likely contained talc – one of the softest minerals on earth. That talc is found in rock deposits – and those rock deposits are often found near other minerals that contain asbestos – another mineral. Fibers from asbsestos can enter the human body and, over time, cause mesothelioma – a deadly cancer where asbestos fibers cause tumors to develop in the lining of the lungs. Some studies have shown that talc can be contaminated by asbestos during the mining operations.

Lanzo was diagnosed with mesothelioma and alleged that it was caused by asbestos in the Johnson & Johnson products. Lanzo also alleged that Johnson & Johnson knew since the 1960’s that their talcum products might be contaminated but failed to alert the public. Johnson & Johnson denied Lanzo’s allegations and claimed that their products have been talc free since the 1970’s.

Last week the New Jersey jury hearing Lanzo’s sided with Lanzo and awarded him $30 million dollars and $7 million to his wife.

Johnson got blasted in a similar case last year. The link to that verdict is here.

The Lanzo jury was scheduled to consider a punitive damages award this week.

A number of other talcum powder lawsuits are currently making their way through various courts and the another trial is set to begin next month.

Pork producer sprays hog waste in air - and neighbors secure a $50 million dollar punitive damages verdict. And same defendant looking at DOZENS of similar cases - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Wow. A North Carolina jury absolutely walloped the worlds largest pork producer last week over its disposal practices.

Ten neighbors filed suit against Kinlaw Farms, a large pork production facility located in North Carolina. Kinlaw is owned by Murphy-Brown LLC [a subsidiary of Chinese-owned Smithfield Foods].

The focus of the plaintiffs’ case was the truly nauseating way that Murphy-Brown disposed of the waste from THOUSANDS of hogs. Murphy’s practice, since the late 1990’s, involved flushing the waste from the hogs into open air holding pits. The resulting slop would then be sprayed onto nearby fields with spray guns. The plaintiffs claimed the airborne waste drifted and would coat their clothing and homes with a sickening smell that never went away. The plaintiffs further claimed that the airborne waste effectively deprived them of their right to use use and enjoy their homes.

The jury agreed, and found hat Murphy-Brown had “substantially and unreasonably” interfered with the plaintiffs’ use of their property. The jury awarded each of the 10 property owners $75,000 in compensatory damages. But the jury was just getting warmed up. DOZESN

Then the jury lowered the boom . To the tune of $50 million in punitive damages . And this decision is only the FIRST in dozens of lawsuits filed against Murphy. News reports noted that residents have complained for years about the disgusting smells and ever-present flies. But the pork industry’s political clout was able to repeatedly neutralize any serious reforms efforts.

Murphy-Brown is claiming that the lawsuit represents a threat to the North Carolina economy and vowed to appeal the verdict.

Mediators, much like facts, matter. As do cookies. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

I recently resolved a wrongful/retaliatory discharge case through mediation. I wasn’t particularly enthralled with the idea of a mediation as only limited discovery had been completed. But my opponent said his client was genuinely interested in resolving the case early. We agreed to use Retired Judge Hollis Webster of Hollis Webster Mediations . While I been before Judge Webster when she was a DuPage County Trial Judge, I hadn’t mediated any cases with her. I came away very impressed. As soon as the parties had broken off to their respective conference rooms, Judge Webster sat down with me and asked some pointed questions – demonstrating that she had read the submissions and properly identified the difficulties with my case.

And then Judge Webster took a few minutes to introduce herself to my client. She spent a few minutes talking to the client about her family and background – and what she wanted to accomplish in the mediation. Their conversation lasted maybe 2-3 minutes at the most. But that conversation made the client feel a bit more like a participant as opposed to someone who simply hears numbers over the course of several hours. As negotiations continued Judge Webster diligently worked toward pushing the parties toward a reasonable settlement. She continually touched base with my client to make sure she fully understood the posture of the proceedings and if she had any questions. At the end of several hours the case had resolved and my client was satisfied.

Lastly, she brought cookies. And the cookies were very, very good. Gotta like an mediator who shows up with cookies.

FDA taking a fresh look at Parkinson's medication after hundreds of deaths linked to use of drug. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

In 2016, the scientific community was optimistic about a new drug – Nuplazid – that appeared to promise some relief to patients who had to endure the misery of Parkinson’s psychosis – a symptom of Parkinson’s disease that caused patients to experience hallucinations and delusions. The drug, made by Arcadia Pharmaceuticals had shown in clinical trials that it offered substantial improvements over comparable drugs. But Dr. Paul Andreason, who supervised the FDA’s medical review of the drug, was concerned. In the limited clinical trials, patients taking Nuplazid experienced serious complications – including death – at twice the rate to patients in the placebo group.

Nonetheless, the FDA voted to go ahead with release, after a six week study of 200 patients. The drug hit the market in 2016. Patients and their loved ones rushed to buy and sales soared to $125 million by 2017.

And then reports of “adverse events” started. Those “adverse events” included falls, nausea, fatigue and death. And 1,000 reports that patients taking the drug continued to hallucinate.

The Institute for Safe Medication Practices released a study the same year linking 244 deaths to the use of Nuplazid. The same study noted that for hundreds of patients the drug was actually making things worse. FDA data shows the number of reported deaths has now risen to more than 700.

Doctors and researchers are convinced the drug was rushed to the market after only abbreviated testing. Diana Zuckerman, founder of the National Center for Health Research noted that since more adverse reports are voluntary – the actual number of adverse events may be substantially higher. “This is almost unheard of, ” Zuckerman noted. “You just don’t see this with most new drugs – you don’t see all these reports”.

Arcadia, the manufacturer, maintains the drug is safe and says that many patients taking the drug are have advanced Parkinson’s Disease and statistically more likely to die.

Andreason, however, saw it coming. “This is exactly what I thought was going to happen,” he noted.

Last week, in light of the adverse events reporting, the FDA is conducting a fresh evaluation of the drug.

Chipotle wrongfully accuses worker of theft and fires her. Then Chipotle pays dearly. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

I saw this online story by Rachel Seigel of the Washington Post a couple weeks ago.

Jeanette Ortiz worked at a California Chipotle for 14 years. She had moved up to a General Manager position and was making around $72,000 a year. Chipotle’s practice going back several years, was to have armored cars swing by and swap out large bills for smaller bills. One day, in the fall of 2014, the armored car never showed. And there was an extra $636 dollars laying around as a result. Ortiz found the money, placed it in a manila envelope, sealed it and stapled it. She then contacted corporate to let them know about the extra money. She then put the money into a safe, in view of a surveillance camera.

In December, 2014, Ortiz filed a Workers’ Compensation claim, alleging she suffered from carpal tunnel. She had filed prior Workers’ Comp claims and her bosses weren’t happy to hear about another one.

On January 3, 2015, Ortiz texted her boss as well as two other supervisors and alerted them the money she had put in the safe back in October was gone. Ortiz reported she and an assistant manager had last seen the money on December 30, 2014. Chipotle then decided to bring in another manager to review the surveillance tape. That manager said the footage showed Ortiz taking the money from the safe and putting it in her backpack. Ortiz adamantly denied doing so and demanded to see the footage. Chipotle corporate types responded that corporate policy did not permit them to show her the footage. Ortiz was then fired.

Ortiz sued the Chipotle for wrongful termination, lost wages, damage to her reputation and emotional distress. At trial evidence was adduced that there is no actual written policy forbidding employees from reviewing surveillance video. To make matters worse, no video of Ortiz taking the money was ever produced. Chipotle said that they had “filmed over” the footage. Oops. Chipotle lawyers argued that while Chipotle had no ill will toward Ortiz, Chipotle felt betrayed after Ortiz allegedly stole the money – especially after supporting Ortiz through multiple pregnancies and work injuries. So Chipotle was betting that despite the missing videotape, they could convince a jury that Ortiz stole the money. Chipotle was very, very wrong.

The jury awarded Ortiz $6 million dollars in emotional distress and $1.97 million for loss of past and future wages.

Shortly after the verdict, the parties reached a confidential settlement in order to avoid a further award of punitive damages.

News that will shock no one: nursing homes are chronically understaffed. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Illinois Trial Lawyers newsletter today included a stoary that won’t shock most lawyers handling nursing home cases – most nursing homes aren’t adequately staffed. While Medicare doesn’t set a minimum staff to patient ratio, it does require that a registered nurse be on the premises at least eight hours a day and a licensed nurse be present at all times.

Kaiser Health News analyzed daily payroll records that Medicare had assembled from over 14,000 nursing home nationewide. Some of the jarring findings included:

On at least one day during the last three months of 2017, 25% of the facilities reported that not a single registered nurse was on the premises;
Even highly rated nursing homes sometimes had only 1 aide caring for 8 patients;
Some nursing homes reported instances where 1 aide was caring for 18 patients.

The Center for Medicare and Medicaid Services[CMS ] is alarmed and taking steps to address the fluctuations in nursing staffs. The ramifications of missing staff have real life ramifications. When nurses and aides are absent, residents can’t get the help the need to go to the bathroom. So those residents try to do so without necessary help and fall. Or the bedbound patient doesn’t get the necessary repositioning he needs. So bedsores develop. Other patients go without vital medications. David Stevenson, an Associate Professor of Health Policy at Vanderbilt University School of Medicine noted that staff “volatility means gaps in care.” In other words, when nursing homes are understaffed, residents get hurt.

The article mentioned Stan Hugo, a retired math teacher, whose wife Donna lives at Ithaca, New York nursing home facility. In 2017 he and other residents and family members became so dissatisfied with the care their loved ones received they formed a council to monitor operations. Medicare regulations require that nursing home administrators listen to the grievances and recommendations made by such councils.

Hugo visits his wife every day. And he counts the nursing assistants he sees attending to patients. On at least on occasion, he has seen 2 nursing aides trying to cover 40 patients.

This is a long standing problem that results in countless injuries and deaths. Now that the data is out there, perhaps CMS can craft a meaningful solution.

The HITECH Act finally levels the playing field for lawyers trying to get medical records. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

As a trial lawyer, I’ve been representing injured people for decades. One of my pet peeves is how cavalier Illinois medical providers are when it comes to responding to requests for records. Pursuant to 735 ILCS 5/8-2001, medical providers have 30 days to respond to requests for records. But in my experience providers, rarely, if ever, respond within 30 days and sometimes require multiple additional requests. And if you haven’t filed suit, your only mechanism of enforcement is filing an entirely separate lawsuit against the providers asking for fees. Most trial lawyers, to quote Colonel Nathan Jessup, have neither the “time nor inclination” to do that. [I attached a clip of that speech. Nicholson kills it as Colonel Nathan R. Jessup. I defy you to name one actor who would have delivered that monologue better than Jack Nicholson. And “A Few Good Men” is a great courtroom movie to boot.]

Back to HITECH. If, by some odd twist of fate, you did receive the records on a timely basis, you would also get a bill. And that bill, for just a couple doctor visits, would always run $40-$50. And if lengthy hospitalization records were necessary for review, you would be looking at hundreds, possibly thousands of dollars in medical record expense before your lawsuit was even on file. And there wasn’t much that you could do about it.

But now there is. The Health Information Technology for Economic and Clinical Health Act[“HITECH Act”] was part of an economic stimulus package introduced by the Obama administration in 2009. One of the primary objectives of the Act was to increase the use of Electronic Health Records[“EHR”] by providers. Under HITECH, a patient has the right to obtain their “protected health information.” Under the Act, “protected health information” means all information, including medical charting and billing maintained in electronic media. Thankfully, most[but not all] providers have made the switch to maintaining records in electronic format. And, of critical importance to trial lawyers, the Act providers that patients can designate a third party – i.e. the patient’s lawyer – to receive the records.

And the fees under HITECH are decidedly lawyer-friendly. Under HIPAA, for records maintained in electronic format, page charges are not considered reasonable as hundreds of pages of records can be transmitted onto a disc or attached to an email with a couple keystrokes. The only charges allowed are the charges for the labor to transfer the records to a CD or thumb drive. Again, a couple keystrokes. Under HITECH a flat fee of $6.50 can be charged by the provider. Yep, $6.50. I had been chasing records in a medical malpractice case from a large Chicago hospital for months. Decided to give this whole HITECH thing a whirl and had my client drop off a HITECH request at the hospital. Ten days later I had a disc with nearly 5,000 pages of records. The fee? $6.50. At that moment, I became a believer.

The requesting letter is very simple and there are all kinds of templates on the internet. I looked at a couple and put my own letter together and have tweaked it a couple times over the last month. If you want a copy shoot me an email. One important caveat: that letter MUST come from the client.

While I have only been using HITECH for a few months, thus far the results are very, very promising. If you do personal injury, medical malpractice, workers’ compensation or disability work – where records are a necessary part of every case – you need to jump on the HITECH bandwagon.

Illinois Appellate Court gives green light to asbestos case alleging conspiracy amongst manufacturers to hide the risks. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Jones v. Pneumo Abex, LLC is an interesting asbestos decision out of the Fifth Appellate District in Illinois. And it likely has asbestos manufacturers concerned. In Jones , the plaintiffs, John and Deborah Jones, sued Pneumo Abex and Owens-Illinois for injuries John suffered due to asbestos exposure when he worked in construction. John Jones never worked for either defendant. He did however, work with construction products that featured asbestos.

Jones alleged that the defendants were responsible for his lung cancer because they entered into conspiracies with other parties to to conceal the harmful effects of asbestos exposure and to wrongfully assert that asbestos exposure was perfectly safe. The complaint further alleged that the defendants manipulated the scientific and legal landscape to protect asbestos manufacturers and that as a result, John was injured. The two defendants moved to have the case tossed, arguing that it was similar to some Fourth Appellate District cases where judges had found insufficient evidence to show there was a shadowy agreement to suppress the harmful impact of asbestos exposure. Relying on those cases the trial court tossed the cases and Jones appealed.

The Fifth District Appellate Court however, reversed the trial court. In doing so the Appellate Court specifically noted that:

Abex, after funding years of a medical study on asbestos, sought to suppress the report’s discussion of tumors and cancers;
Owen-Illinois continued selling a thermal insulation product known as Kaylo after being advised it represented a respiratory hazard as early as 1952; and
Owens-Illinois failed to place on markings on Kaylo packaging despite knowing of the respiratory issues, until the late 1960’s.

The Court noted that based on those facts as well as other evidence that had been presented, the plaintiffs had demonstrated that a judge could conclude a conspiracy was in place.

While there are substantial battles that remain before Mr. Jones ever sees any money, this decision likely has the attention of the manufacturers. And it should. Jurors won’t take kindly to the kind of evidence the Appellate Court discussed.

Senior Citizens acting badly - residential community for older adults liable after residents terrorize lesbian. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The United States Court of Appeals for the Seventh Circuit recently issued a decision in Wetzel v. Glen S. Andrew Living Community. There are important legal takeaways that are discussed below. The most jarring takeaway though, from the humanity perspective, is that even elderly people, who should know better, can still act like assholes.

As the opinion lays out, After Marsha Wetzel’s partner of 30 years died, she moved into St. Andrew, a residential community for older adults. [That slight woman pictured above is Wetzel – photo courtesy of the Washington Post]. The rental agreement provided for a private apartment; three meals a day in a central dining area; access to a community room and use of the laundry facilities. After Wetzel arrived, she made no secret of the fact she was a lesbian and was open about it with staff and other residents. Her sexuality did not sit well with other residents. They crudely and routinely berated for being a lesbian. [One resident even told her that he enjoyed the mass shooting at the Pulse nightclub in Orlando. How could a guy that filled with bile live long enough to become a senior citizen?]. Grotesque threats of violence were made against her. And it didn’t end there.

Wetzel used a motorized scooter. The same resident who made the Pulse nightclub comment rammed his walker into Wetzel’s scooter and knocked her off a ramp. Another resident crashed her wheelchair into a table where Wetzel was seated, causing the table to collapse onto Wetzel. While collecting her mail, Wetzel was struck in the back of the head and knocked off her scooter. She was spat at and harassed in common areas.

Wetzel reported the abuse and harassment to the staff at St. Andrew. Initially the staff interceded. But then apathy set in. Eventually staff concluded the harassing conduct was “accidental”[?]. Then staff decided Wetzel was lying. And then, they retaliated against Wetzel for complaining. Her dining room assignment was changed to a less desirable location. She was barred from the lobby. Cleaning services were halted. Staff made false accusations that Wetzel was smoking in her room. One morning staff entered Wetzel’s apartment to see if she was smoking. When Wetzel understandably indicated that she had been sleeping, she was slapped. Eventually Wetzel’s existence was limited to her room. She avoided the floor where her most persistent abuser lived. She avoided the common areas and refused to do her laundry when she was alone.

Wetzel filed suit against St. Andrew alleging it failed to provide her with non-discriminatory housing and retaliated against her for complaining, in violation of the Fair Housing Act[“FHA”]42 U.S.C. Sections 3601-3619. St. Andrew moved to dismiss on some arcane legal basis that doesn’t merit discussion. The District Court agreed however, liked the argument and and tossed the case.

But still, Marsha persisted. She appealed.

And she won. The Seventh Circuit held that the FHA creates liability when a landlord intentionally discriminates against a tenant on a protected characteristic[sexuality]. And the Seventh Circuit also held that landlord can be liable when it has actual notice of tenant on tenant harassment based on sexuality and does nothing to stop it. Wetzel’s case was reinstated.

Wetzel continues to live at St. Andrew. No word if her tormentors are still there. Maybe they found their Val Halla. Some place where there are no lesbians. Some place where they can be with their own kind – small, mean, stupid people.

Good on ya Marsha.

Tort of retaliatory discharge just got a little broader in Illinois. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

A decision out of the Federal District Court in Chicago appears to have broadened the tort of retaliatory discharge a bit.

In Van Pelt v. BonaDent , plaintiff Tad Van Pelt had been recruited to work as a sales representative for BonaDent, Inc. a dental lab. Van Pelt was hired as an at will employee. In 2015, Bonadent purchased a laboratory in Chicago. Van Pelt was told to maintain a desk at the facility so he could supervise things. Additionally, he was asked to oversee Human Resources at the Chicago facility. After a time, Van Pelt concluded that some of the workers did not have appropriate documentation to be working in the United States. He told his Bruce Bonafiglia, BonaDent’s CEO. Bonafiglia indicated that one of the workers was in the process of getting the necessary documents and that Van Pelt should go about his business. Van Pelt agreed but refused to undertake any HR responsibilities for employees he felt were working illegally. During a subsequent performance review Van Pelt again raised concerns about illegal workers and insisted he would not help any of the illegal workers secure necessary documentation. Van Pelt was then fired. He sued BonaDent, for a variety of harms. One of this theories was that BonaDent fired him in retaliation for his refusal to tend to HR responsibilities for those employees he felt to be illegal.

Generally speaking an Illinois employer may terminate an at will employee at any time for any reason. There is one exception to that rule however – the tort of retaliatory discharge. In order to prevail on a claim of retaliatory discharge, the employee must prove: 1) he or she was discharged; 2) in retaliation for his or her activities; and 3) the discharged violated a clear mandate of public policy. Courts of Illinois however, have been historically reluctant to find violations of public policy. Over the last 40 years, Illinois courts have recognized only three fact patterns where a public policy was involved. In Kelsay v. Motorola (Ill. 1981) 384 N.E.2d 353, the Illinois Supreme Court determined that it was illegal to discharge an employee for exercising his or her rights under the Illinois Workers’ Compensation Act. In Palmateer v. Int’l Harvester Co., (Ill. 1981) 421 N.E. 2d 876. the Supreme Court recognized a cause of action when an employee is terminated for disclosing information to a law enforcement agency. Finally, in Wheeler v. Caterpillar Tractor Co. (Ill. 1985) 485 N.E.2d 372, the Illinois Supreme Court determined an employee could not be discharged for refusing to handle radioactive material where the employer’s operations violated federal standards.

BonaDent moved to dismiss the retaliatory discharge count of Van Pelt’s complaint on two fronts: 1) no criminal activity was involved and 2) no public policy was involved. Judge John Zee, however, didn’t buy it. Citing Belline v. K-Mart, Judge Zee noted that the Illinois Supreme Court would recognize a retaliatory claim where an employee is fired for reporting a supervisor’s purported criminal conduct to the employer – even if the employee doesn’t go to the police. And, Zee noted, the absence of criminal conduct doesn’t sink the claim. A plaintiff need only allege a good faith belief that a crime was being committed. Zee then concluded that Van Pelt could move forward with his retaliatory claim even though he didn’t go to the Police. Additionally, Zee concluded that Van Pelt held a good faith belief the documentation of illegal employees was criminal conduct. BonaDent’s Motion to dismiss the retaliatory discharge count was denied.

Zee’s opinion then appears to endorse another category of retaliatory claims – situations where employees report seemingly illegal activity to personnel inside the company and are then fired. And, importantly, the employee doesn’t even have to be right about the criminal nature of the activity – as long as he or she holds a reasonable belief it is illegal.

Can woman recover when a friendly dog moves closer and causes her to fall off a porch and suffer a bad injury? Nope. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Fifth Appellate District downstate issued an interesting opinion yesterday involving a friendly dog and a bad fall.

In 2012, Paulette Crosson was a certified nursing assistant who provided home health care to patients. In August and September, 2012, she made multiple visits to a home owned by Pam and Bob Ruzich to provide health services to a Pam’s grandmother who also lived in the home. While doing so, Paulette became friendly with Pam Ruzich. In the fall of 2012, Paulette went to Pam’s house a couple times for social visits. The following year, in March, Paulette was visiting again at the Ruzich home. Paulette was inside the home for a short period and then left. As she was leaving she was standing on the top step of the front porch. Moxie, defendant’s dog came over to say hello. Plaintiff then petted Moxie.

Moxie responded to the petting and allegedly moved closer to Paulette. Moments later, Paulette was laying on the ground, having fallen off the porch. She claimed that as a result of her fall she suffered severe injuries to her right foot. She then filed suit against the homeowners. Paulette amended her complaint a couple times and in the third Amended Complaint she alleged that Moxie into her and caused her to lose her footing and fall. She claimed that the homeowners violated the Animal Control Act, 510 ILCS 5/16[“the Act”] . The homeowners moved to dismiss the allegations under the Act. The trial court sided with the homeowners and tossed that part of the complaint alleging a violation of the Act. Paulette then appealed.

In order to recover under the Act, the plaintiff is obligated to demonstrate: 1) an injury caused by an animal owned by defendant; 2) lack of provocation; 3) peaceable behavior by the injured party prior to the injury and 4) proof that the plaintiff was in a place where she had a right to be. It is not necessary an animal actually attack. An injured party may recover if the action by the animal leads to the injury – even if the action was harmless. The thorny issue for Paulette was whether Moxie caused her injury. The animal must engage in some affirmative behavior that causes injury. When the dog is simply a passive actor, that isn’t enough. Given that definition, one would think that Moxie, moving in for additional petting, would be sufficient. The Appellate Court however didn’t see it that way.

The court took a close look at Paulette’s deposition testimony where she acknowledge Moxie never actually touched her. Paulette testified that when Moxie moved closer, she adjusted her position and then fell. The court also noted that Paulette admitted to being familiar with Moxie and that she wasn’t surprised by Moxie inching closer for more petting. There was no evidence that Moxie was out of control, agitated, or startled. The Appellate Court concluded that such innocuous behavior wasn’t the type of dog behavior that would permit recovery under the Act.

The Court concluded that Moxie was a a passive, casual force and that it was Paulette’s decision to shift her position that led her to fall. A bit of hair splitting there but the folks in the robes get the last word. Trial court’s decision to toss the case was upheld.

Illinois Appellate Court sticks yet another fork in the phantom injury defense. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Defense lawyers have been suggesting other causes of injuries since the Stone Age. The Fifth Appellate District, in Campbell v. Autenrieb recently handed down a decision that does a nice job of explaining exactly when such testimony is permissible. In Campbell, the plaintiff was injured when an unleashed dog lunged at Campbell and caused him to fall. Campbell alleged the fall caused serious back injuries which dramatically altered his lifestyle and caused a $200,000 wage loss. At trial, Campbell’s treating surgeon, Dr. Kennedy was called to testify. Defense counsel, on cross, suggested other causes of the injuries:

[Defense Counsel]: Okay. Sometimes people’s back will just go out for no reason; would you agree with that?

[Dr. Kennedy]: Yes.

Q: They call it an idiopathic cause?

A: Yes.

Q: And the annular fissure, we talked about that. That could be caused – You mentioned it might be caused by the incident like he described to you with the dog, but it could be caused by many other factors; would you agree?

A: Possible.

Q: Lifting, twisting, any kind of daily activities involving those types of events?

A: Well I think as a general proposition that’s possible, yes.

The jury came back with a verdict for plaintiff in the amount of $16,000. The plaintiff filed a motion for a new trial on damages which the trial court denied. Plaintiff appealed, arguing that suggesting some phantom “lifting, twisting” suggestion was inadmissible speculation.

The Appellate Court got it right. The opinion noted that the hypothetical testimony elicited from Dr. Kennedy by defense counsel invited the jury to speculate about unproven causes of Campbell’s injuries, contrary to well-established Illinois case law. See Voykin v. Estate of DeBoer, 192 Ill.2d 49.

And the Court weighed in on when a pre-existing injury or condition may be admissible. The defense must first present expert evidence why the earlier injury or condition is relevant. There should be a causal link between the other injuries suggested and the specific injury before the jury. The hired gun doc the defense brings may be well credentialed. And he may be a compelling, articulate witness. But that expert doesn’t get to offer opinions based on assumptions that have no basis in fact. Since the defense didn’t offer any medical evidence to provide the necessary link between this mysterious lifting and twisting, the testimony was pure conjecture. The trial court was reversed and a new trial ordered.

Kudos to the lawyers for Campbell – Armbruster, Dripps, Winterscheidt & Blotevogel for staying the course and getting a bad result based on phantom evidence reversed.

Why Alexander Acosta should NEVER be Attorney General. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The endless and exhausting breaking news generated by the White House sometimes overwhelms other important stories. The Miami Herald had a story the other day about Alexander Acosta – the current Secretary of Labor – and his involvement in the remarkably lenient treatment of Jeffrey Epstein, a Florida billionaire, and serial sexual abuser of underage women.

In October, 2007, Acosta, then U.S. Attorney in Florida, was approached by Jay Leftkowitz, a former colleague at Kirkland & Ellis. Leftkowitz represented Epstein who had been accused of creating and overseeing a cult-like enterprise where underage girls were delivered to his waterfront mansion so that Epstein could sexually abuse them. Additionally, there was some evidence that Epstein was trafficking young girls from overseas for sexual activities at properties he owned in New York and the Caribbean. Epstein was facing a 53 page federal indictment that should have landed him in jail for the rest of his life. But that isn’t what happened. [The article, by Julie K. Brown discusses Epstein’s depravity in detail. Be prepared].

A plea deal was struck that morning between Acosta and Leftkowitz. The two men met at a Marriott Hotel in West Palm Beach, some 70 miles away from prying eyes in Miami. The deal was very, very, very lenient considering the allegations. The deal[referred to as a “non-prosecution agreement”] shut down an on-going federal probe seeking to identify other victims. And it shut down any inquiries into whether any of Epstein’s rich powerful friends may have shared his interest in young girls.

Epstein was required to plead guilty to two prostitution charges in state court. Epstein and four of his accomplices received immunity from ALL federal charges. But the deal didn’t stop there. Immunity was also given to “any potential co-conspirators” who were involved. And, perhaps most shocking, Acosta agreed[possibly in violation of federal law] that the victims would not be made aware of the arrangement. The agreement was sealed until after judicial approval – thereby depriving the victims of the opportunity to show up and object.

[As a side note, Epstein did serve time for the two state charges. But not in a regular jail cell. He was housed in a private wing of the Palm Beach County Jail. And, he was allowed work release privileges – which allowed him to leave the jail six days a week for 12 hours at a time, to go to an office in West Palm Beach. And all of that was permitted even though sex offenders do not normally qualify for work release].

The Herald story identified 80 women who were molested or sexually abused by Epstein from 2001 to 2006. Many of them have since battled mental health issues and addictions. Other victims had criminal troubles. While Epstein had to pay damages to 36 women identified by the FBI, settlements weren’t consummated until after his lawyers pried into every aspect of their personal lives in order to ruin their reputations.

Epstein and his team of lawyers have not responded to requests for interviews. While Epstein has sat for depositions in approximately 24 lawsuits filed by his victims, he routinely refuses to answer questions, asserting 5th Amendment privileges.

In 2011, Epstein sought to have his sex offender status reduced in New York. A prosecutor from the New York District Attorney’s office argued the motion on behalf of Epstein. [Yes, a prosecutor sought relief for Epstein]. New York Supreme Court Judge Ruth Pickholtz, however was having none of it. She denied the motion, commenting that “I have to tell you, I’m a little overwhelmed because I have never seen a prosecutor’s office do anything like this.”

In 2011 Acosta attempted to explain his conduct by suggesting he was pressured by the high profile legal team assembled by Epstein[which included Alan Dershowitz, Roy Black and none other than Ken Starr].

Mike Fisten, a former Miami Dade Police Sergeant was a member of the FBI Organized Crime Task Force. Fisten thought that the FBI had sufficient evidence to put Epstein away for many, many years. But the FBI was overruled by Acosta. Fisten noted that “The day that a sitting U.S. Attorney is afraid of a lawyer or afraid of a defendant is a very said day in this country.”

And now? Acosta is now rumored to be on the short list for the highest law enforcement post in the country – Attorney General.

Au pairs strike back. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Colleen Slevin of the Denver Post had an article in the Denver Post the other day about $65.5 million dollar settlement against several companies that bring young women to the United States to work as au pairs. [An au pair is typically a young woman, from outside the United States who comes here to provide live-in child care to families].

The underlying lawsuit, brought by a dozen former au pairs, alleged that 15 companies that brought au pairs to the States colluded to keep their wages low and ignore various minimum wage and overtime laws. The lawsuit also alleged that the au pairs were forced to do things that fall outside traditional childcare duties.

The settlement is on behalf of about 100,000 former au pairs.

The defendants, while denying wrongdoing, also agreed to take steps in the future to make sure that au pairs fully understood their rights.

The settlement covers au pairs who worked in the United States between January, 2009 and October, 2018. Here is the website to determine if you are eligible for compensation: http://www.aupairwageaction.com/

Environmental toxic exposure - may be the next trend in tort litigation - and chemical manufacturers should be concerned. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The most recent ABA Journal had an intriguing excerpt from a book Poisoned – How a Crime Busting Prosecutor Turned His Medical Mystery into a Crusade for Environmental Victims – which might portend the next trend in tort litigation.

The book was written by Alan Bell , who in the 1980’s was a hotshot prosecutor in Florida. He then left his prosecutor position and took a law firm job in a South Florida skyscraper while he mapped out an anticipated run for the U.S. Senate. But in 1989 he started having bizarre medical symptoms – so bizarre his doctors thought he might have been poisoned by the Mob. Eventually Bell learned that he had been exposed to toxic chemicals in the skyscraper. Bell eventually became so disabled he applied for disability and moved to a remote Arizona location for 8 years to recuperate. Bell then began collaborating with scientists to to raise awareness about environmental toxic exposure. The excerpt in the ABA Journal focused on Bell’s representation of Dan Allen – a successful football coach at College of the Holy Cross in Worcester, Massachusetts[pictured above prior to his death].

In 2001 Allen was working at his office in the gymnasium building at Holy Cross in 2001 when he saw men in white suits and gas masks working on the gym floor. When he asked the workers what they were doing he was advised the gym floor was being resurfaced. Allen asked if he should leave the building[a good question in light of the presence of guys in gas masks] but was advised he would be fine in his office. Shortly thereafter he began to get headaches. Then loss of sensation in a toe. Within 18 months he was in a wheelchair, unable to use his right arm or perform any personal toiletry.

Allen’s wife was a nurse and eventually reached out to Bell. Bell put Allen in touch with Dr. Marcia Ratner, a neurotoxicologist at Boston University. After an examination, Dr. Ratner diagnosed Allen with amyotrophic lateral sclerosis[“ALS”] – otherwise known as Lou Gehrig’s Disease. Allen’s wife then secured the products that were used for the resurfacing in the gym. They included benzene, toluene and isocyanates, all of which were considered ultrahazardous in Massachusetts.

Bell then filed a Workers Compensation claim against Holy Cross and a third party case against the chemical manufacturers. During the course of the third party case it became apparent that the floor resurfacing personnel were obligated by OSHA to wear gas masks and seal off the areas where they were working. Somehow, Coach Allen’s office was included in the sealed area. But Allen continued working in his office without a mask, every moment of which he was being exposed.

Bell then lined up a reknown expert who had studied the link between exposure to the flooring chemicals and ALS in mice. That expert concluded that Allen’s ALS was indeed linked to his exposure.

Lawyers for the manufacturers of course tried to have the case tossed on Daubert grounds – meaning that the science offered by Coach Allen’s lawyers was not generally accepted by the scientific community. U.S. District Judge Dennis Saylor however, denied the Daubert challenge. After that ruling – where a federal court judge had recognized a link between chemical exposure and the triggering of ALS – the manufacturers folded. The case settled in 2009. Unfortunately, by that time Coach Allen had died.

Hats off to Mr. Bell and his team for sticking with Coach Allen and his family.

Texting about veal parmigiana dinner while driving = $235,000 settlement - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Saw this story by Robert Storace online recently.

Dasantila Rook was driving home from her job at a Connecticut restaurant in July of 2015. She was taking food home to have dinner with her husband. All well and good. Dasantila got into trouble when she decided to text her husband about dinner. She was describing what sounded like a delicious veal parmigiana dinner when she crossed the center line. Rook struck a car driven by Kelsey Lisk head-on. Lisk suffered post-traumatic stress and had to undergo treatment for anxiety and panic attacks that developed after the crash.

Rook couldn’t dispute that she was texting. An officer responding to the scene saw the cellphone in her car and asked Rook to open the phone. The screen showed the above text – right about the time of the crash. The crash apparently prevented Rook from completing her description of the other items on the menu.

Lisk retained McEnery Price Messey & Sullivan to file a lawsuit against Rook. The case settled last week for $235,000. That text was all the evidence Lisk needed.

Takata lied about its defective airbags. And people died. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The web is busting with stories on the Takata airbag mess.

By way of background, Takata, is a Japanese company that supplies airbags to several US car manufacturers. Former Takata engineers have indicated that years ago, cost factors compelled the company to turn to a less expensive propellant for use it its airbags. The propellant triggers inflation of the airbag. Unfortunately, Takata decided to use ammonium nitrate. And that decision had deadly consequences. Ammonium nitrate has a flaw. A very, very serious flaw. Ammonium nitrate can deteriorate over time. And, when it deteriorates it becomes unstable. And when the propellant in an airbag is unstable, it explodes unexpectedly. And when that happens, shards of metal and other shrapnel are shot into the interior of a vehicle. And people die or are grievously injured.

Other airbag suppliers had considered ammonium nitrate in the 1990s. But they tested it and determined that due to its instability, ammonium nitrate was simply too dangerous and could not be used. [It is hard to imagine that Takata wasn’t aware of the results of those studies. Even if Takata wasn’t aware of the results, it is difficult to believe Takata was not at least generally aware that its competitors were looking into the ammonium nitrate issue].

But for whatever reason, Takata continues using ammonium nitrate. For years. And, to make matters worse, Takata manipulated the test results that it submitted to car manufacturers. In 2004, a Takata airbag in a Honda Accord suddenly exploded and shot metal fragments toward the driver, causing serious injuries. The folks at Takata kept quiet and labeled the event an anomaly. The New York Times did a serious of articles on the defective Takata airbags and obtained internal emails from Takata that demonstrated a decidedly brazen approach to manipulating testing data. In 2006 one Takata airbag engineer wrote “Happy Manipulating” on an email referencing airbag test results. In 2010, Takata assured federal regulators that the airbag issue was an isolated manufacturing problem. But at the same time , Takata had Penn State researchers investigating the link between the ammonium nitrate and exploding airbags. Those same Penn State researchers concluded in a 2012 report that ammonium nitrate shouldn’t be used in Takata airbags. Takata sat on those finding for TWO YEARS before sharing them with regulators.

The exploding Takata airbags have now been linked to at least 16 deaths and hundreds of serious injuries – including horrific facial scarring and blindness. Some of those deaths or injuries could have been avoided if Takata had done the right thing in 2004 when they were first put on notice that there was something dangerously wrong with its airbags. Or in in 2010 when Takata became sufficiently concerned to hire researchers to examine the link between the ammonium nitrate and the explosions.

In 2015, the National Highway Traffic Safety Administration fined Takata $70 million for its failure to promptly disclose information pertaining to the airbag defect.

In 2016, the Department of Justice went after Takata. In February, 2017, Takata agreed to plead guilty to wire fraud and pay a $25 million dollar criminal penalty. Yoichiro Nomura, Takata’s Chief Financial Officer[pictured above] entered the plea and admitted the actions of certain Takata employees were “deeply inappropriate.” An additional $975 million was set aside in a Victim’s Compensation Fund. Of that amount, $125 million has been set aside for victims who suffered injuries, while $850 million has been set aside for restitution to car companies. In the United States alone, 19 automakers are recalling over 42 million cars. Worldwide the recall is expected to exceed 100 million vehicles.

If you take a look at the Takata website, you will see a screen shot with text that says Takata dreams of a word “with zero fatalities from traffic accidents.” They should be ashamed.

Lawsuits filed last week in Florida charge that Honda, Toyota, Nissan, Ford and BMW were all aware that the Takata airbags were unsafe – but continued to install them in vehicles. The various companies insist they were deceived by Takata and should not be liable. This tragic story is far from over.

The Illinois Right to Privacy in the Workplace Act - a good start. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

So – can an employee be fired for supporting perfectly legitimate organizations on her personal time?

I represent a nice young woman who it appears, was fired from a large big box store on the basis of race. That’s an easy one.

But it also appears she was fired for her support of legitimate organizations through various well-recognized social media platforms – while away from the office. The organizations were devoted to increasing LBGT representation in various industries. My client felt that her former employer didn’t want to be associated in any way with those organizations. And she is probably right, in that her supervisor told her that the company “didn’t want to be associated in any way with those organizations.” So I think she is on pretty solid ground here.

My first thought was the termination would likely be covered by the Illinois Human Rights Act[IHRA]. But while the parameters of the IHRA are broad, I’m not sure the IHRA covers this type of behavior.

Then I stumbled across the Illinois Right to Privacy in the Workplace Act, 820 ILCS 55/5 , et seq., which just became law this year. Under the Right to Privacy Act, it is unlawful for an employer to discharge any individual because that individual uses lawful products[such as social media platforms] off-premises and during non-working hours. There are no reported Illinois Appellate decisions clarifying the breadth of the Right to Privacy Act, but my client’s situation looks to fall squarely under the Act’s protection.

Unfortunately, enforcement of Act is a bit cumbersome – affected employees have to file complaints with the Department of Labor. The Department then investigates, and if warranted, tries to resolve the matter. If the complaint is not resolved and the Department determines a violation did occur, the Department can sue in the Circuit Court to enforce the Act where monetary damages can be assessed. The best case scenario would be one where the employee can sue directly under the Act, for compensatory damages. But the Act doesn’t go that – yet. Hopefully it will in the future.

Nasty gender discrimination case against Morrison & Foester gets nastier.... - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Karthryn Rubio had an article on Above the Law today about the rather nasty gender discrimination case that seven female attorneys have filed against Morrison & Foerster . [Morrison & Foester for good or bad, is known in the legal world as “MoFo”.] For those not familiar with MoFo, it is a gigantic law firm with over 1,000 lawyers and offices throughout the United States, Asia and Europe.

The plaintiffs are asking for $100 million – so this case was destined to get nasty. The plaintiffs allege there is a “mommy track” at MoFo that female attorneys get placed on after taking maternity leave from the firm. MoFo’s lawyers have already tried to to dismiss the claims of Jane Doe 4[“JD4”] asserting that she signed a release of all claims against the firm when she negotiated her severance package. JD4 responded that she had been under economic duress when she did so – as she was eight months pregnant when she was fired. The Court decided that JD4 had sufficiently pled economic duress and allowed her complaint to go forward.

Now MoFo is seeking to information from JD4’s current law firm about her performance. MoFo is attempting to “probe whether her performance is also viewed as subpar at her current law firm.”

JD4’s attorneys are objecting to the requests, claiming that simply by filing her lawsuit against MoFo, JD4 didn’t agree to allow her performance at subsequent law firms to be scrutinized.

Ms. Rubio’s article didn’t disclose if the judge has ruled on MoFo’s requests. But I have to say – I see MoFo’s point. If JD4 had poor performance reviews at subsequent jobs, MoFo could credibly argue that she was fired strictly for performance issues – and point to subsequent poor evaluations to corroborate that claim. I think JD4 is going to lose this battle.

Former MSNBC Host Falsely accused by Rush Limbaugh of posing nude at 14. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

This story is actually difficult to believe.

During a recent broadcast of his nationally syndicated radio show, Rush Limbaugh said this about Krystal Ball, a former Democratic Congressional candidate: “Remember the name Krystal Ball with a K? Some thought she was attractive. She was running for Congress and she got elected, some tweets came out. She posed nude when she was 14 or 15…”

This is completely, categorically untrue. Ball, who worked for a time at MSNBC and is now a host on Rising on Hill TV, never posed nude. Ball, speculated on Monday that Limbaugh was referring to some photos that were taken at a costume party near the end of her run for congress – in which she was fully dressed.

Ball recently discussed the difficulty she had figuring out how to respond to Limbaugh’s ridiculous comments. Here is the link.

Ball could certainly sue Limbaugh for his despicable statements but Limbaugh and his network would love the resulting publicity and likely aren’t terribly worried about an adverse verdict.

Years ago, former Senator Al Franken wrote a book about Limbaugh entitled Rush Limbaugh is a Big Fat Liar. Well worth a read and provides some great insights into Limbaugh says things to his millions of listeners that have no actual basis in fact.

McDonald's accused of pushing Black Franchise owners to bad locations - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

According to a recent Forbes article , McDonald’s Corporation is being sued for $1 billion dollars by dozens of former Black franchise owners who claim they were pushed to “substandard locations” that resulted in decreased revenue but increased insurance costs. The 52 former owners, who filed the lawsuit in federal court in Chicago, alleged that their average sales between 2011 and 2016 were $700,000 less than that national franchise average – and often led to bankruptcy.

Jim Ferraro, one of the attorneys for the group, noted that in the last 20 years, the number of Black McDonald’s franchise owners has decreased 50%. In another lawsuit filed earlier this year against the fast food giant, it was alleged that nearly one-third of Black franchise owners divested their ownership between 2015 and 2019.

McDonald’s categorically denied any wrongdoing.

This lawsuit is only the latest in a string of bad news for the once Golden Arches. McDonald’s is currently suing its former CEO, Steve Easterbrook. Easterbrook, who was fired last year for having a personal relationship with an employee still managed to snare a $42 million dollar severance package. McDonald’s is seeking return of the the $42 million.

Illinois Appellate Court squashes "one free rape" argument after guest attacked at Holiday Inn. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

I read the opinion in Gress v. Lakhani Hospitality quite some time ago and meant to post about it. But the opinion got buried with other papers and finally resurfaced the other day. The opinion provides much needed clarity to what a plaintiff must show – and perhaps more importantly what a plaintiff is NOT obligated to show – when it comes to hotel liability for the criminal acts of third parties.

The basic facts are pretty awful. Karla Gress was a guest at the Skokie Holiday Inn, which was owned by Lakhani Hospitality Inc.[LHI]. After eating dinner and having a drink in the hotel bar, Gress returned to her room. Unbeknowst to Gress, Alhagie Singhateh, a hotel security guard, placed a narcotic in Gress’ drink while she was in the bar. Singhateh also did some maintenance work around the hotel which afforded him a passkey to rooms. Later that evening, after Gress had returned to her room, Singhateh was directed to enter her room to allegedly fix a faulty air conditioner. Singateh was so instructed even though hotel personnel knew Gress was intoxicated. Once inside the room, Singhateh raped Gress while she was unconscious. When Gress woke up she realized she had been assaulted. DNA was retrieved with a rape kit and police later matched the DNA with Singhateh.

Ms. Gress and her husband sued LHI, alleging in part, that it had failed to insure the safety of its guests. In their complaint, plaintiffs included numerous allegations of unseemly conduct by Singhateh and others employees. Singhateh had previously been arrested for solicitation of prostitution. And he was alleged to have harassed managers and search guest bags without consent. And, prior to his employment at LHI, Singhateh had engaged in creepy behavior while employed at another Holiday Inn. In addition to the allegations directed at Singhateh, there were numerous allegations regarding other criminal activities at the hotel. Guests had repeatedly complained that their property had been stolen from their rooms. Prostitutes allegedly frequented the hotel bar and employees disabled security cameras on multiple occasion. There were also disturbing reports of sexual assaults both before and after the attack upon Gress – although said assaults did not implicate Singhateh.

Despite these facts, LHI moved to dismiss, insisting that LHI could not have known or foreseen that Singhateh would sexually assault a guest in her room. The trial court, in dismissing the complaint, noted that none of the myriad of other incidents included allegations of a sexual assault by Singhateh upon a guest. In effect, the court ruled that LHI had no duty to anticipate Singhateh might assault Gress since plaintiffs were not able to demonstrate he had engaged in a prior similar attack. Legally speaking, if an injury can’t be anticipated or foreseen, one has no duty to protect against it. The trial court ruled since the rape was not foreseeable, LHI had not duty to Gress. That portion of the complaint against LHI was dimissed. The plaintiffs then appealed the dismissal.

The Appellate Court noted at the outset of its opinion that generally, a property owner has no duty to protect guests from the criminal acts of third parties. There is a notable exception to this rule however, where a special relationship exists between the property owner and guest. And the law in Illinois is clear that a special relationship does exist between a hotel and its guest. Hotels must exercise the “highest degree of care” to control a third party to prevent that third party from doing harm to a guest.

The Appellate Court then dispatched the argument that a property owner has to have notice of a prior incident before the law imposes a duty to protect a plaintiff from a third party. Citing Marshall v. Burger King, the Court noted that a special relationship, standing alone, may be sufficient to establish an affirmative duty to protect guests from third parties. The Court went on to note that the special relationship between a hotel and guest encompassed the risk of sexual assault by a hotel employee. The Appellate Court specifically noted that the plaintiffs had alleged that Singhateh had a hand in Gress’ intoxication[by adding a narcotic to her drink]. And LHI then sent Singhateh to her room, knowing that the guest – a female – was intoxicated. LHI, instead of protecting its guest, had facilitated her attack.

The Appellate Court went on to note that crime, including sexual assault, is pervasive in hotels. Consequently, a plaintiff is not obligated to allege a precisely identical previous incident. Instead, the plaintiff need only show that a criminal incident generally similar to prior incidents had occurred. The Appellate Court specifically rejected any assertion that a previous crime of the precise nature suffered by Gress had to be pled. In particularly striking language the opinion noted: “We likewise decline to impose the equivalent of a “one free rape rule” since there is simply no requirement under Illinois law that an innkeeper be on notice of a prior sexual assault before any duty would arise”

Additionally the Court went on to note that while strict notice was not required to establish a duty, the plaintiffs had established constructive notice by alluding to numerous thefts; inappropriate passkey use and Singhateh’s history of disturbing behavior toward women. The Appellate Court held that the allegations in the complaint were sufficient to impose a duty upon LHI to protect Gress against the attack. The ruling of the Trial Court was overruled.

Hats off to the lawyers for Schostok & Pritchard PC for for challenging the trial court decision.

A true crime podcast worth a listen. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The news on the coronavirus is unsettling and things may get worse, leading to considerable disruptions in our daily lives. Lots of folks may end up finding themselves working remotely or with some unanticipated downtime. If the happens and you have an extra hour or so, give the In The Dark Podcast a listen. I was never one for podcasts until fairly recently. Full disclosure – my kids shamed me into giving podcasts a listen. And I am grateful they did.

In the Dark, in my humble opinion, represents the absolute best of the true crime genre. The show is produced by American Public Media and narrated by Madeleine Baran. It is produced by Sandra Freemark. Thus far there are only two seasons. Season One focuses on the kidnapping of 11 year old Jacob Wetterling from St. Joseph, Minnesota back in 1989. Baran and her crew essentially open a second investigation into Jacob’s disappearance. That investigation uncovers some unusual criminal activity near St. Joseph shortly before Jacob was kidnapped. Additionally, Baran and her team assess the efforts made by police personnel in the critical hours after Jacob’s kidnapping. Baran’s efforts raise a number of very disturbing questions about how this tragic case was investigated. Warning: a number of the episodes in Season One contain very wrenching details that are difficult to hear. Be advised.

Season Two does a very deep, detailed dive into a very unusual murder prosecution. On July 16, 1996, four people were murdered in a small furniture store in Winona, Mississippi. Curtis Flowers was arrested for the murders and ultimately stood trial. Doug Evans served as the prosecutor. Flowers was convicted but the conviction was overturned by the Mississippi Supreme Court for prosecutorial misconduct. Evans was tried again by Evans and convicted. That conviction was also overturned by the Mississippi Supreme Court. Baran than follows the case as Evans doggedly pursues Flowers for two decades – ultimately trying him six times – in an effort to put him on Death Row. Season Two is a fascinating analysis of Southern “Justice” involving systematic exclusion of African American jurors; alleged jail house confessions [later recanted]; “misplaced” exculpatory evidence and mysterious house fires – and that is only a small sample of the many unusual components of this case. As the episodes unfold, it becomes increasingly clear that Flowers likely did not commit the murders. Yet that doesn’t stop Evans’ dogged quest to put Flowers to death.

Season Two, again in my humble opinion, is about as good as podcasts get. Give it a listen.

That Lyft ride home may not be as safe as you think. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

As first reported by Cathy Bussewitz in the New York Times last month, Lyft, the popular ride-share company is facing multiple allegations of sexual assaults by drivers.

Dozens of women have filed suit against Lyft over the last several months, claiming that they were sexually assaulted by Lyft drivers. Caroline Miller[pictured above]is one of the women making the allegations. Miller, 21, says that she was raped by a Lyft driver after celebrating her 21st birthday with friends. Miller and others are alleging that Lyft should have done more to protect its passenger by conducting more thorough background checks of drivers and utilizing in-car video capability to monitor activity in the car. Additionally, the women allege that Lyft does next to nothing when it comes to the investigation of assaults.

Lyft spokesman Ashley Adams says that multiple safety features have been incorporated recently, including more vigorous background checks and in-app emergency assistance.

Lyft has used media campaigns to promote safe rides home after a night out. One of their popular tag lines was: “Drink Up. We’re driving.” And Lyft promised in promotional materials that they have partnered up with certain bars “to get you home safe.”

Rachel Adams, an attorney who currently represents 100 clients suing Lyft noted “Most women saw the pink mustache and thought that’s a safe ride home….but [Lyft]didn’t do anything to actually make themselves themselves the safer ride home.”

The article noted that many attorneys suspect the dangers faced by Lyft riders may actually be worse than those faced by Uber riders, based on the number of clients they represent, the size of the company and the severity of the incident.

Lyft insists that any driver involved in any incident is immediately deactivated and not allowed to drive until the issue has been resolved. Lyft also says it shares information about drivers who have been deactivated. Additionally, Lyft maintains its background check protocol is comprehensive.

Rosalind Chow, a professor of organization behavior and theory at Carnegie Mellon University doesn’t think the rash of sexual assault allegations against Lyft will affect the company in any meaningful way and noted, “Sadly, I don’t think it will have much of an impact.”

Recent Appellate Decision provides roadmap for dog bite cases. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Illinois Second District Appellate court recently handed down an opinion that provides a pretty concise roadmap of the proof one needs when litigating a dog bite case. In Dziewra v. Ori , Jamie Dzierwa sued several people after she was bitten by Fiona – a 105 pound Cane Corso[a Cane Corso(not Fiona) is pictured above]. The drama started on July 25, 2015. Fiona was owned by Joe and Elizabeth Ori. The Oris were out of town and had asked Brad Hoebel(the brother of Elizabeth Ori) to stay at their place and keep an eye on Fiona. Brad had taken care of Fiona on a couple prior occasions. Elizabeth had left pretty basic instructions – “feed [Fiona], and walk her and give her love.”

Jamie had been invited to the Ori home by Brad, along with several others. Elizabeth Ori testified she was aware Brad would invite friends over when he took care of Fiona. Joe Ori however, testified that Brad was only permitted to have his girlfriend over.

Prior to the incident, Fiona had never bitten anyone else in the seven years the Oris had owned her. The dog did scare certain unidentified children and Elizabeth took steps to keep Fiona isolated when those kids were around. Apart from that precaution, Fiona was generally allowed to mingle with guests at the home. Additionally Fiona was known to growl at other people from inside the car, bark at other dogs and bark at strangers who approached the Ori home. On one occasion she had tangled with another dog at a dog park.

After Jamie was bit, she sued the Oris and Hoebel on two counts – under general negligence theories and under the Illinois Animal Control Act . The defendants moved for summary judgement and the trial court granted the motion. Jamie then appealed.

The court first addressed the negligence theory. When asserting negligence leading to a dog bite, the court noted the plaintiff must demonstrate that the owner of the dog knew or had reason to know the dog was dangerous. Jamie argued that the owners knew Fiona was dangerous because a) the previous dustup with another dog and b) Fiona growled at strangers near the house. The Appellate Court however didn’t agree. The Court noted that to be liable the plaintiff must prove the defendants knew the dog had a propensity to injure a person – and that altercations with other dogs didn’t matter. Additionally, the Court noted there was no case law to support that dog who growls at other dogs therefore poses a threat to humans. So the Appellate Court upheld the decision of the trial court to toss the negligence count.

And Jamie had no luck on the statutory count either. The Appellate Court focused on a prior decision holding that the legal owner of a dog is not liable if that owner was not in position to control the dog or prevent injury. As the Oris had relinquished full control to Hoebel, the Oris had no reason to suspect that Fiona would attack one of his guests. The Appellate Court ruled that the Oris did not control Fiona at the relevant time and therefore were not liable under the Act.

Interestingly, the opinions specifically notes the Oris were not liable. There was no discussion as to Hoebel.

In Alabama the "Stand Your Ground Defense" is of no comfort to battered women. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

In the January issue of the New Yorker , Elizabeth Flock wrote this compelling article on Brittany Smith – a battered Alabama woman[pictured above] who shot and killed the man who had savagely attacked her. The article detailed how Smith, a young woman in her thirties, was finally feeling good about life in January of 2018. Smith had battled her share of demons. She had struggled with substance abuse and had lost custody of her three children. But in 2018 Smith had cleaned up and had landed a job paying a decent wage. She was confident that she would soon be getting increased visitation with her kids. Things were looking up.

On that day in January of 2018, she had gotten a call from an old friend – Todd Smith[no relation]. Todd bred pit bulls in Jasper, Tennessee, not that far from where Brittany lived. Brittany had been at Todd’s house the day before and had taken a puppy home with her. When Todd called that day he said he was stranded in a nearby park and needed a place to stay. Despite some misgivings – Brittany had previously rejected his advances – she agreed to pick him up. Brittany brought Todd to her house and not long after he arrived, Todd assaulted her. He choked her until she lost consciousness. When she was woke she was naked and Todd was sexually assaulting her. He beat her again until she again lost consciousness. Afterward, Todd told her that if she ever told anyone about what had occurred he would kill her and her family.

Brittany called her mother Ramona while Todd held the phone. Ramona thought something was wrong and sent Chris – Brittany’s brother – over to Brittany’s house. Todd, Brittany and Chris then drove to get cigarettes. The clerk at a local gas station who knew Brittany noticed her tangled hair, battered hands and scratched face. When he asked if she was ok, Brittany wrote “Todd Smith” on a piece of paper and said Todd had beaten and raped her. She asked him not to call the police however, as she was worried Todd would follow through on his threats to her family.

When Chris dropped Todd and Brittany off, Brittany communicated to her brother that he should return to the gas station. He did and learned what had happened to Brittany. Chris returned to the Brittany’s armed with a .22 caliber pistol. Chris confronted Todd in the house and told him to leave. Todd refused. Chris placed the gun on a counter and a fight ensued. Todd – who was previously ingested a combination of Xanax, amphetamines, meth and alcohol was soon choking Chris. Brittany grabbed the gun and shot Todd. The bullet had no impact. She fired two more rounds and then called 911.

Todd died a short time later. Brittany told the police he had beaten her and raped her and also assaulted Chris. The rape kit showed bruises on Brittany’s neck, breasts, arms, legs and pelvis. There were undeniable signs of attempted strangulation. There were bite marks on her chin and neck.

48 hours later, Brittany was charged with murder.

Initially, Brittany and Todd told police Todd had fired the gun. The reason? Because they thought, as do lots of people in Alabama, that a woman who defends herself against violence from a man doesn’t get a fair shake.

Todd’s assault of Brittany was hardly his first act of violence against a woman. He broke his ex-wife’s nose in the early 2000’s. Subsequently he broke her nose a second time, her ribs, and her jaw. He also repeated sexually assaulted her. He would be charged with domestic violence on five separate occasions. He continued beating his ex-wife even after they divorced. Todd was arrested approximately 80 times before he died.

Despite all that, in March, 2018, Brittany was indicted for Todd’s murder.

Brittany decided that she would assert the “Stand Your Ground” Defense – based on Alabama law which permits lethal force against a threat.

Last month, Flock wrote a follow up article detailing how an Alabama judge ruled that Brittany would not be allowed to assert the Stand Your Ground defense. The judge’s “reasoning” is difficult to comprehend and appears to ignore undisputed evidence of vicious assaults upon both Brittany and her brother. Testimony of Todd’s history of violence against women was stricken.

Although Brittany can seek to reverse the decision, that’s a longshot. The most likely scenario is that Brittany will be tried for murder.

Holding a bar liable for criminal acts of third parties requires showing the injury resulted from the same risk present in prior incidents. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Illinois Appellate Court handed down an opinion last week dealing with the sufficiency of proof when trying to hold a business owner liable for the criminal acts of third parties.

In Witcher v. 1104 Madison Street , Toney Adewoye was a patron of Plush Restaurant back in late 2011. The restaurant is located a mile or so west of downtown Chicago. He was with his wife. As Adewoye prepared to leave, he began speaking with another man in the restaurant. [This other person, who was never identified, will be referred to as “assailant”]. Initially the interaction between Adewoye and assailant was cordial. Suddenly however, the other man struck Adewoye. The assailant then quickly left the restaurant, and was followed by Adewoye. Shortly thereafter, Adewoye was found bleeding heavily from a neck wound. The entire incident transpired in a matter of seconds.

The assailant jumped in a car nearby and fled the scene. A doctor inside the restaurant came to Adewoye’s aid but could not save him. Adewoye died – apparently at the scene.

Plaintiff Natalie Witcher, the Special Administrator of Adewoye’s estate, filed suit against the restaurant, alleging it failed to provide proper security. Evidence was uncovered which showed that there was some history of trouble at the restaurant in the years prior to Adewoye’s death. In the five years before the incident there had been eleven battery complaints; one assault; five thefts and three motor vehicle thefts that were linked to Plush. Most of the incidents had occurred during the week. The owner of the restaurant acknowledge employing security personnel but only on weekends due to larger crowds.

The defense argued that Plush had no duty to protect Adewoye as the attack was a sudden, unpredictable event they could not guard against. The assailant was not a regular. He apparently did not order anything to drink. He spoke directly to Adewoye, stabbed him in the neck and fled. And, of critical importance, there had never been similar violent events at the restaurant. The restaurant filed a Motion for Summary Judgement, seeking to have the case tossed. The restaurant argued that this injury simply was not foreseeable.

The Appellate Court opinion first noted that a restaurant is not an insurer of its patrons’ safety. In order to establish that Plush a duty to protect against this horrific act, the assault must be shown to have resulted from the same risk as was present in prior incidents of criminal behavior. And there was little evidence of similar prior events. There had been no previous fights inside Plush. The witnesses that testified said they have never even seen a weapon inside Plush prior to Adewoye’s murder. The crowd that night was well-behaved. Witcher was unable to show any prior events that would have put Plush on notice that some sort of violent assault was likely. While Witcher did present evidence of some 20 prior incidents where the police were on site, none of those prior incidents were similar to Adewoye’s assault. Those prior crimes were not the same type of crime the ultimately claimed Adewoye’s life.

The Appellate Court agreed with the trial court and upheld the decision tossing the case.

Illinois First Appellate District Finds Prejudgment Interest Act Constitutional - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

On June 9, 2023, the Appellate Court of Illinois, First District, ruled that the Illinois Prejudgment Interest Act [“the Act”] was constitutional. The constitutionality of the Act was addressed in Cotton v. Coccaro , an appeal of $6.5 million dollar verdict against various defendants in a medical malpractice case. After the verdict the trial court denied plaintiff’s motion for pretrial interest under the Act. Cotton then filed a post-trial motion and renewed her request for a prejudgment interest award. The briefing on Cotton’s motion addressed the constitutionality of the Act. The trial court then modified the original judgment to include prejudgment of $111,332.99 and the court then entered judgment against the defendants. The defendants the appealed that order.

For clarification, the Act provides that after entering judgment for a plaintiff in an action, the court shall add to the amount of the judgment interest calculated at the rate of 6% per annum on the amount of the judgement, minus punitive damages, sanctions, statutory attorney’s fees and statutory costs[emphasis mine]. Prior to the Cotton decision, two Cook County judges had entered conflicting orders on the constitutionality of the Act, so there was a pressing need for Appellate Court clarification.

The Appellate Court opinion first noted that until the Act was amended in 2021, Illinois did not allow recovery of prejudgment interest in personal injury and wrongful death cases – but did allow prejudgment interest to be added in cases where it was permitted by contract, statute or equity. The opinion, written by Justice Mitchell, then noted that the rationale for prejudgment interest is ensure the plaintiff receives compensation for the actual injury and for the delay in being made whole. Justice Mitchell noted that providing interest on the verdict provides the injured party with a more complete recovery, and importantly, requires a defendant to bear the full cost of his breach. The opinion goes on to effectively and summarily rebut each of the arguments offered by the defense as to why the Act should be held unconstitutional.

Additional challenges to the Act are a virtual certainty and the issue will likely make its way to the Illinois Supreme Court. But for the moment, reason prevails and the Act stands.

Hats off to Raymond & Raymond Ltd; Pfaff Gill & Ports Ltd and Clifford Law Offices, all of whom represented plaintiff.

Young workers dying from incurable disease associated with stone countertops - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Los Angeles Times had a disturbing article by Emily Alpert Reyes last week regarding the deadly illness popping up among workers involved in the cutting of manufactured stone for use in kitchen countertops. The illness – silicosis – is an incurable and suffocating disease that is killing workers across California – many of them quite young. The article details how engineered stone – the material of choice in kitchen countertops – has a higher concentration of silica than natural stone. When workers cut the stone without appropriate protection, tiny particles of crystalline are expelled into the air. Those workers then unknowingly inhale the silica particles. Over time, the silica dust particles cause inflammation in the lungs that leads to the formation of lung nodules and scarring in the lungs known as pulmonary fibrosis. Once afflicted the lung capacity decreases, followed by shortness of breath, lung failure, and eventually death. Historically silicosis took 10-30 years to develop. But pulmonary physicians, who normally see silicosis patients in their 60’s and 70s are now seeing an alarming number of patients in their 20s, 30s and 40s. Dr. Jane Fasio, a pulmonary critical care doctors at Olive-View UCLA Medical center noted “They’re young guys who essentially have a terminal diagnosis.”

Reyes talked to young predominantly Hispanic workers who cut, polished and installed countertops in and around Los Angeles. The workers detailed how dust was everywhere and few, if any protections were given to the workers. Leobardo Segura Meza, only 27, described how he has to hustle home from the park with his young kids – before his oxygen tank runs out. Meza knew of two co-workers who had already died of silicosis, while waiting for lung transplants.

Non-profit groups such as Pacioma Beautiful are sending volunteers to local industrial parks to warn workers of the dangers. Unfortunately many of the workers are day laborers, and have little knowledge of the disease, and, due to economic hardship, take stone work positions in facilities that offer little, if any protection against airborne silica. “Wet saws” – saws that spray water onto the stone to minimize airborne particles and NIOSH respirators are the two primary measures that companies can offer to workers as a way to minimize foreign particle inhalation. But many smaller shops lack the budget, or conscience, to make those means available.

And the risk to workers is very real. Reyes notes that 1 in 5 Australian stone workers have the disease. Workplace safety regulators in California estimate that approximately 12-20% of the 4000 industry workers in California have silicosis. A recent study of California workers with the disease revealed a death rate of nearly 20%, with the median age at death only 46.

While California safety regulators are now drafting emergency safety rules to protect workers, some lawyers representing sick workers feel engineered stone is simply too dangerous to be used safely, and have called for a ban of the product.

Engineered stone is the predominant material used in countertops. And its popularity is expected to increase.

Illinois Nursing Home Arbitration Clause Shot Down - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The Illinois Appellate Court recently handed down an important opinion that will have important ramifications in nursing home litigation. In Parker v. Symphony of Evanston , Cheryl Parker as the independent administrator of the Estate of Mae Jefferson, filed suit against Symphony Evanston Healthcare (“Symphony”) alleging that Symphony had been negligent in their care and treatment of Jefferson, and that Symphony had violated certain aspects of the Illinois Nursing Home Care Act. Symphony moved to dismiss and compel arbitration, asserting that Mae’s daughter, Kathy Jefferson (“Jefferson”) had signed a binding arbitration agreement, as Mae’s agent, pursuant to a health care power of attorney.

The arbitration agreement in question provided that in the event of any claim arising out of a dispute relating to injuries suffered by Mae, or Mae’s death, those claims would be submitted to arbitration. Additionally, the Agreement provided that “in consideration for the execution of the Agreement, Facility(Symphony) agrees to pay up to $5,000 of the resident’s arbitration costs, attorney fees and out of pocket expenses” – language no doubt inserted to counter any argument that the arbitration agreement was not supported by consideration.

Symphony moved to dismiss the lawsuit and compel arbitration. The trial court granted the motion, dismissed the case, and entered an order compelling arbitration. Parker then appealed.

Parker argued that Kathy lacked authority to bind Mae to arbitration because arbitration was optional and signing the agreement was not a condition of admission. Additionally, plaintiff argued that the agreement was unconscionable because Kathy was not properly informed about the content of the agreement and had no role in the creation of it. Plaintiff also argued that key terms of the agreement were buried in fine print. Finally, Parker argued that the agreement was unconscionable as it required residents to waive statutory attorney fees under the Nursing Home Care Act and that Mae was not a party to the agreement.

The Appellate Court, after a thorough discussion of the relevant caselaw, noted that where an arbitration provision is optional or otherwise not necessary to gain admission to a nursing home, an agent acting pursuant to a health care power of attorney is NOT authorized to sign the arbitration agreement and the patient is not bound by the agent doing so.

The Court went on to note that the agreement Kathy signed was separate from the admission agreement. The Appellate Court also noted that while the Symphony Admission Agreement and Arbitration Agreement were both presented at the same time, they were separately paginated and separately signed. And, importantly, the Arbitration Agreement explicitly stated that signature was not a condition of treatment.

On appeal Symphony argued that the Arbitration Agreement was part of the admission contract because Section G of the Admission contract incorporated the Arbitration Agreement. The Appellate Court however, wasn’t moved and noted that since Kathy was not required to sign arbitration agreement for Mae to be admitted, it was not necessary for Kathy to sign the arbitration agreement to make health decisions for Mae.

The Appellate Court ruled the arbitration agreement was not enforceable and remanded the case back to the trial court for further proceedings.

Justice Pucinski’s short concurring opinion is not to be missed. While only one paragraph, it packs a punch. Justice Pucinski noted that arbitration is not about health care, but about money. Additionally, she noted that arbitration “is just the worst kind of illusion for the providers to try to jam the authority to agree to arbitrate into a HCPOA.”

Kudos to the talented group of lawyers advocating for Parker, which included Michael Rathsack and Steven M. Levin and Paul J. Connery of Levin & Perconti.

Flight Attendants Secure $1 Million Plus Dollar Verdict for Formaldehyde-tainted uniforms. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

In September of 2016, American Airlines came up with yet another uniform change for its flight attendants. Tracey Silver-Charan had been working for American as a flight attendant for 35 plus years and had seen uniform modifications come and go many times over the years. She dutifully got the new uniform and started wearing it, and didn’t give it another thought.

But several months later, Tracey began feeling very ill at work. She was having trouble breathing, felt light-headed and began to develop painful rashes. She notified her employer about her illness and noticed that she always felt better when she got home. And out of her uniform.

In 2017, Tracey and over 400 other American employees filed suit alleging that their illnesses were caused by the formaldehyde that had been added to their uniform blouses during manufacture in China. The purpose of the formaldehyde was to prevent the blouses from wrinkling. In October, 2023, a California jury awarded Tracey and three other American employees over $1 million dollars in their litigation against Twin Hill, the clothing manufacturer that made the blouses.

And the California verdict is not a one-off. Numerous other lawsuits, with strikingly similar allegations, are pending against uniform suppliers.

Daniel Balaban, the American Airlines employees’ lead trial counsel, described the formaldehyde-tainted uniform as “…a defective product that harms people.” Balaban also noted that he hoped the clothing manufacturers would take note of the verdict. “Hopefully it sends a message to the defendant and insurance companies to try to resolve these cases. But if they’re not, we’re going to try these cases on batch at a time.”

Beware the Arbitration Agreement - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

I remember the excitement that comes with getting the offer letter on that job you really wanted. You can leave that dead-end job you are in, start making some real money and start enjoying life again. Yeah, the Employment Agreement includes an Arbitration Clause. And it’s kinda weird but the Arbitration Clause says the case has to be arbitrated on the other side of the country, but no worries. You aren’t going to have any legal issues with your employer right? Wrong.

I recently represented a nice young man who landed a gig at a large Chicago real estate company. Unbeknownst to him, one of the managers he would be interacting with had an anger management problem. After a particularly hostile outburst where the manager loudly criticized my client’s productivity(in a large meeting with co-workers) my client discreetly asked the manager to refrain from such public criticism. That just made matters worse. The manager then aggressively approached my client and there was some physical contact. My client immediately extracted himself, notified HR and then notified the Police. Days later, my client was fired. The client contacted my firm and asked me to help. I asked him if he had a written employment agreement and he showed it to me. The dreaded Arbitration Clause was there on page 10. I informed him that the Arbitration Clause was clearly written and broad – and likely spelled trouble. But I agreed to file the case and fight the Arbitration Clause. So we filed, bracing for the inevitable Motion to Compel arbitration. And weeks later, as anticipated, I received the Motion to Transfer the compel arbitration.

As a general rule, if you are trying to skirt out from under an arbitration clause in an employment agreement – you are up against it. First, Courts favor arbitration as an alternative to litigation as arbitration is typically faster, more informal and cheaper. Secondly, courts view arbitration clauses as contracts. So when Courts are called upon to determine if an arbitration clause is enforceable, the analysis involves the application of principles governing the formation of contracts. And while there are mechanisms to void a contract, it is an uphill battle. One of the frequent attacks against arbitrations clauses is that they are “unconscionable” – either procedurally or substantively. But convincing a judge the arbitration clause is unconscionable isn’t easy. To show procedural unconscionability the employee typically has to show the employer basically snuck the clause by the employee – by burying the clause deep in the agreement and hiding it behind confusing legalese. But employers have caught on and now take pains to place arbitration clauses in oversize, bold font and in very plain language. My client’s employer had done precisely that – so the procedural unconscionability argument was futile.

Employees can also argue “substantive” unconscionability – which is asserting the actual terms of the agreement are so one sided and oppressive for the employee that fairness dictates the clause be set aside. While there are some Illinois decisions voiding arbitration agreements as oppressive, they are rare, and usually involve ridiculously one-sided terms that are clearly unfair on their face. The terms my client faced were not unfair or oppressive. So he wasn’t going to get any relief with substantive unconscionability either.

Another attack employees frequently use focuses on the scope of the arbitration clause. This argument essentially recognizes there was an arbitration agreement in place, but the dispute in question falls outside that agreement. In my case, my argument was that while my client did agree to arbitrate certain terms of his agreement(such as hours and rate of pay), he did not agree to arbitrate a wrongful retaliatory termination after reporting a physical attack to the police. Scope arguments however, are very dependent on the breadth of the language in the arbitration clause. And, most employers use really broad phrasing, i.e. “any dispute over this agreement or employee’s employment”. My client’s employer certainly did and the Court, while sympathetic, ruled that my client had indeed agreed to arbitrate his firing.

So, what can be done, when looking down the barrel of an arbitration clause? First, ask yourself – do you really want to work for an employer who insists you waive your right to a jury trial and that you agree to arbitrate important legal rights at some far flung location several states away? Maybe not. There are other jobs out there.

If you insist on taking the job, at the very least, request time to review the agreement with an employment lawyer. The lawyer may suggest striking the arbitration clause, or requesting that certain causes of action(like wrongful termination or retaliatory discharge) be specifically excluded. While most employers likely won’t be agreeable, it doesn’t hurt to ask.

Bottom line: when you see that Arbitration Clause, proceed with caution.

A routine motion and the heartbreak beneath. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Judge Thomas Durkin ruled on a routine pleadings motion in Federal Court in Chicago this week. A defendant was moving to dismiss a complaint, asserting the injured party failed to include the necessary allegations to go forward with a complaint. Sometimes however, even dry rulings on routine pleadings motions cannot obscure the heartbreak beneath.

On September 18, 2021, Ryan Masi, Michael Beaudin and James Harrington got together for dinner in Chicago. The three young men, all in their mid-twenties, had been friends since high school. Hours later, the three men returned to Harrington’s apartment. While at the apartment, Masi and Beaudin were exposed to fentanyl. Masi and Beaudin both died at the apartment in the early morning hours of September 19, 2021. Later that afternoon, Harrington called 911 from the apartment. He told 911 personnel he had consumed “coke” and was unable to move. He also told 911 personnel that he had two friends in the apartment and they were passed out. After police personnel arrived, they recovered a small pink bag that contained a white powder. Forensic testing showed the powder contained fentanyl.

Toxicology tests later showed that fentanyl had caused Masi’s death.

The Masi family filed suit against Harrington alleging violations of the Illinois Drug Dealer Liability Act, 740 ILCS 57/25 (“the Act). Under the Act, parents of a drug user may recover money damages against a defendant who knowingly distributed an illegal drug, actually used by a drug dealer. The Act further requires that the drug user must actually use an illegal drug.

Harrington sought to dismiss the case, on two separate fronts, both of which were equally unpersuasive. First, Harrington argued that the complaint never alleged that Masi had “used” fentanyl but had instead been unwittingly exposed to it when he had ingested some of the powder in the bag, assuming it to be cocaine. Judge Thomas Durkin however, correctly noted that the Masi family need only allege that Masi sought to use the powder, not that he was aware the substance was fentanyl.

Harrington’s second argument was that Masi was not a “user of Illegal drugs” and therefore could not recover. Harrington pointed to allegations in the complaint which specifically noted that Masi, prior to September 18, 2021, had not been a drug user. Judge Durkin summarily disposed of that argument as well, noting that while Masi may not have been a drug user prior to the evening of September 18, 2021, the facts clearly showed that he had used an illegal drug sometime shortly before his death.

Peter Lubin, counsel for the Masi family, commented that the family sued Harrington to discover what happened to their son that night – relief that can be obtained under the Act.

Illinois Homebuyer alleges National Association of Realtors conspiracy resulting in higher home prices - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

As detailed in Dennis Rodkin’s article in Crain’s this week, a Chicago-area homebuyer just filed a lawsuit against At World Properties, alleging that At World – the largest residential real estate firm in Illinois, has engaged in a longtime conspiracy to inflate home prices and broker commissions.

The complaint, filed by James Tuccori, ostensibly pertains to his purchase of a home in the West Town neighborhood of Chicago in 2018. But point in fact, the complaint actually is an indictment of the way home sales commissions are handled and seeks recovery not only on behalf of Tuccori but other homebuyers who have also been damaged due to the alleged conspiracy. The link above(hopefully) includes the complaint which accuses At World(and other unnamed conspirators) of violation of federal law; commission-fixing; consumer fraud and unjust enrichment.

There is ALOT going on in the complaint. One of the more interesting theories is how At World and others have worked over the years to keep buyer commissions high. According to Tuccori, that conspiracy starts with At World’s membership in the National Association of Realtors (“NAR”) – a national trade association that offers certain advantages to members. The primary advantage of membership in the NAR is access to Multiple Listing Services(“MLSs”) which have detailed information on available homes. If a broker wants to make a living he or she has to have access to the MLS. The MLS is where seller brokers list and buyer brokers shop. But virtually all MLS services require that before brokers get access to all those potential sales, they have to be members of the NAR.

And membership in the NAR is the lever that keeps broker commission high. Why? Because as the complaint alleges the NAR has long maintained anti-competitive regulations with respect to commissions. One of the key regulations the complaint targets is a NAR provision which includes mandatory(non-negotiable), up-front allocation of a portion of the sale price to buyer agent commissions. Tuccori alleges that by making the buyer agent commission non-negotiable, the NAR eliminates competition. Without the mandatory, non-negotiable portion of the sales prices, buyer agents could lower their commission to snare the sale of the home. Tuccori alleges this and other practices keep buyer agent fees artificially high – which in turn increases the sale price of the home.

In November, a Missouri jury found the NAR and two other brokerage firms liable for $1.8 BILLION(with a “B”) for conspiring to keep commissions artificially high through practices similar to those set forth above. Some experts think that verdict and the anticipated onslaught of other cases like Mr. Tuccori’s will change the way homes are bought and sold.

Bar pays alcoholic worker in booze. Worker gets drunk, falls, hits head, dies. Appellate Court says no independent cause of action against bar. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The First District Appellate court recently faced a novel question – what liability does a bar face when it provides free alcohol to someone who then falls, hits his head and dies?

The case – Schramm v. 3258 Wells Street Restaurant – involved some unusual facts. Michael Schramm[“Michael”] worked as a busser at 3258 S. Wells, also known as Turtle’s Bar. Schramm delivered drinks, cleaned tables and washed dishes. Turtles paid him in cash and also gave him free alcoholic drinks while he worked. The bar owner – Thomas Mancine[“Mancine”]was well aware that Michael had a severe drinking problem.

On September 28, 2021 Turtles employees were giving Michael free drinks while he worked. Michael became severely intoxicated. He then fell, hit his head and lost consciousness. According to the complaint filed on Michael’s behalf, his blood alcohol level was 3 times the legal limit when he fell. Michael was taken to a hospital where he was declared brain dead. He then died on October 2, 2021.

Shortly before his fall, Michael had been hospitalized for alcohol poisoning after working a shift at Turtle’s. James[“James”] Schramm, Michaels’ brother, alleged that he had confronted Mancine numerous times regarding Michael’s alcoholism. James further alleged in the complaint that Mancine had acknowledged Michael’s drinking problem and promised to stop providing Michael with alcohol during his shifts. Nonetheless, Mancine and other Turtle’s employees continued to provide Michael with alcohol, despite the promise not to do so.

In the complaint filed on behalf of Michael, James alleged that the bar had undertaken a duty to refrain from giving Michael alcohol, had breached that duty and also failed to render timely medical care after Michael fell. James did NOT allege any theories under the Illinois Dram Shop Act 235 ILCS 5/1-1 – which is the exclusive remedy for injuries caused as a result of a person becoming intoxicated at a bar.

The defendants(Mancine and Turtle’s) moved to dismiss the complaint, arguing that James was attempting to to circumvent the Dram Shop Act. The trial judge granted the motion, noting that the basis of James’ complaint was that Turtle’s had caused Michael’s intoxication – and the only available remedy was the Dram Shop Act.

James then appealed the dismissal. His argument to the Appellate Court – which was compelling – was that he wasn’t seeking recovery because the bar gave Michael booze. Instead, he was arguing that Mancine had undertaken a specific duty to refrain from providing Michael with alcohol and that Mancine and his employees failed to promptly render aid after Michael fell and hit his head.

Unfortunately for James, the Appellate Court did not find his argument persuasive. First, the Court reaffirmed that the Dram Shop Act was the only recovery that might be obtained against a bar when injuries occur due to the consumption of alcohol. Then the Court shot down the “voluntary undertaking” theory. The Court ruled that Mancine had merely promised not to give Michael free alcohol and hadn’t really taken “control” of Michael which the Court felt was necessary based on other cases. Curiously the Appellate Court opinion does not really address the allegation that the defendants failed to render prompt aid after the fall.

As noted above, the facts in this case were compelling. Mancine knew that Michael was a problem drinker. And promised family members that he would stop providing free alcohol to Michael. But he didn’t stop. The free drinks kept flowing, and predictably the problem drinker had too much, fell, hit his head and died. Illinois courts continue to be reluctant to recognize independent causes of actions against bars separate and apart from the meager recovery provisions of the Dram Shop Act. While the rationale behind the Dram Shop Act makes good sense, there are cases, like Michael Schramm’s where the cause of his death was not simply the free drinks. Mancine and Turtle’s employees knew Michael had a problem, promised to stop indulging that problem and then broke that promise – with tragic consequences.

Schramm was represented by Deutschman & Skafish.

Big Chicago Law Firms Sitting Out Challenge to Trump's Order blackballing law firm - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Steven Strahler had an interesting article in Crains that dug into which Chicago firms were willing to sign onto an amicus brief challenging the Trump administration’s decision to blackball law firms that helped his political opponents. By way of background, Trump recently signed an executive order declaring that Perkins Coie (a large Chicago firm that represented Hilary Clinton) can no longer represent the federal government. Trump didn’t stop there though. He went further and actually barred Perkins Coie from entering federal premises – presumably federal courthouses. Yep, you read that right. The President of the United States actually signed an executive order barring a law firm from entering federal courtrooms. Because that law firm represented someone he does not like. The executive order is galactically foolish and childish and not likely to withstand judicial scrutiny. A federal judge has already entered a temporary restraining order barring enforcement of the order.

Recently a large group of law firms across the country signed onto an amicus brief seeking to make that temporary restraining order permanent. Strahler’s article asked what Chicago law firms have signed on. And the answer is hardly encouraging. While a number of medium-sized firms including Munger Tolles & Olson, Miller Shakman, Levine & Feldman and several prominent personal injury firms have signed on, there are some notable absences. Most of the large Chicago firms(save Jenner & Block – also hit by a similar executive order from Trump) have NOT signed on. Specifically Kirkland & Ellis, Sidley Austin, Mayer Brown and Winston & Strawn have not signed the brief.

Stephan Blandin, a principal at Romanucci & Blandin, one of the personal injury firms that signed the brief, was dismayed by the apparent reluctance of the big firms to get off the sidelines. “The silence of the big firms is palpable” he noted. “This is constitutional crisis like I have not seen in my lifetime and people are just looking the other way and going about their business.”

Nathan Elmer, a lawyer who worked on the brief, was more pointed when asked about the failure of big firms to get involved. “I think it’s a misplaced sense of values and lack of courage that made the difference.”

Johnson & Johnson intimidation lawsuit dismissed. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Johnson & Johnson [“J&J”] continues to make headlines for all the wrong reasons. J&J has recently taken some multi-million dollar beatdowns in courtrooms across America, as a result of countless lawsuits where it is alleged J&J knowingly marketed talc powder contaminated with asbestos to American consumers for years. And in 2022, J&J had another inspiration – sue the scientists that published papers linking the talc to cancer and other health issues.

In 2020, Dr. Jacqueline Moline , the Chair of Occupational Medicine at Northwell Health, published a study where she asserted that 33 individuals stricken with mesothelioma had no other exposure to asbestos – apart from exposure to J&J talc. Not long thereafter, some company named LTL Management(?) sued Moline for fraudulent scientific studies.

But who is LTL Management?? Excellent question. And to understand who LTL is, you need to understand the “Texas Two-Step” – a time honored bankruptcy sleight of hand corporations use to avoid paying for their misdeeds. In the abstract, the Texas Two-Step is a pretty simple. Step 1 involves a large corporation being sued for a deadly product creating a subsidiary and then transferring all those lawsuits to that subsidiary. Step 2 involves the subsidiary declaring bankruptcy. The injured parties are then forced to accept miniscule settlements due to the bankruptcy.

In 2021, a Missouri jury awarded $2 billion to a class of 22 plaintiffs who had developed ovarian cancer after using contaminated J&J talc. J&J knew the Missouri verdict was a harbinger of some very bad verdicts. So shortly after the Missouri verdict, J&J formed LTL Management. J&J then assigned all of its talc liabilities to LTL. J&J retained all J&J operating assets. Then J&J entered into a funding agreement with LTL where it agreed to cover talc and bankruptcy related expenses up to just under $62 billion. Two days later, LTL filed for bankruptcy. [Thankfully the LTL bankruptcy was later dismissed when the Court determined that LTL was not actually in financial distress].

LTL was still around in 2022, when it sued Dr. Moline in New Jersey. LTL asserted that one of the 33 patients had been exposed through his employment. LTL sued Moline claiming Moline was guilty of fraud and disparagement of J&J baby powder.

Yesterday, Judge Georgette Castner found that Dr. Moline did not engage in fraud when she published the paper and that the conclusions in her 2019 paper were protected by her free speech rights under the First Amendment. The LTL lawsuit was dismissed.

Was J&J really concerned about “disparagement” of its talcum product? Doubtful. There are 61,000 lawsuits currently disparaging the talcum product in courthouses all over America. The disparagement ship has long since sailed. J&J’s motives were considerably more sinister – intimidation of those who doctors and scientists who are provide the evidence needed to hold J&J accountable. Will there be similar lawsuits against plaintiff experts in the future? Almost certainly. J&J has demonstrated that can always go lower.

Federal Judge tosses airline employees' lawsuit claiming uniforms caused illnesses. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

I wrote a post back in November, 2023, about the substantial verdict a California jury awarded to four American Airlines employees for rashes, illnesses and respiratory issues the employees claimed were caused by their American Airlines uniforms. Specifically, the employees claimed that the clothing manufacturer, Twin Hill, used formaldehyde in the uniforms to prevent wrinkles. And the employees claimed (and the jury agreed) that the formaldehyde was making them ill. At the time of that verdict in California, there was numerous similar cases pending against Twin Hill.

Last week, federal judge Thomas J. Tharp of the Northern District of Illinois dismissed similar claims against Twin Hill, finding that the experts for the plaintiffs failed to credibly establish that they had suffered harmful defects from wearing the uniform. Specifically Tharp ruled that the plaintiffs experts failed to prove that the specific uniforms the employees wore contained harmful materials.

Twin Hill rolled the uniforms in question out in 2016. After numerous complaints, Twin Hill conducted tests. Twin Hill lawyers argued that the testing failed to identify a single chemical or component, or combination thereof, that caused the symptoms of which employees were complaining. Experts for the plaintiffs did not identify a specific chemical responsible for the various symptoms alleged, but opined that such specific opinions were not required,

Judge Tharp disagreed and granted summary judgement for defendant Twin Hill. Tharp ruled that the methodologies used by the plaintiffs’ experts were not properly reliable under the Federal Rules of Evidence. Additionally, Tharp ruled that the experts’ opinions would leave jurors guessing about whether any of the identified chemicals would provoke the conditions alleged. Tharp didn’t mince words when he summarized the plaintiffs’ experts, noting that they showed no plausible theory of exposure; failed to identify a toxic chemical, and failed to provide empirical support.

DuPont to pay $2 Billion to clean up "forever chemical" messes - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Reports today say that DuPont and the State of New Jersey have reached a $2 Billion dollar settlement arising out of DuPont’s release of “forever chemicals” into soil, wetlands and other areas in New Jersey – and then forgetting to clean up the mess they made. The settlement with DuPont is reportedly the largest environmental settlement ever obtained by a state.

“Forever chemicals” – also known as PFAS(referring to per and polyfluoroalkyl substances) are man-made chemicals that are used in an extensive variety of products as they are both water and grease-resistant. The chemicals are linked to litany of health problems, including increased risk of certain cancers(kidney, testicular and breast) liver damage, thyroid issues and reproductive problems(such as decreased fertility, low birthweight and developmental problems).

NJ.Com is reporting that one of the sites where DuPont created munitions created such significant contamination in the environment that over 300 homes required filters to prevent toxic chemicals from seeping into their homes. The settlement terms provide that DuPont will spend $875 millions cleaning up the contamination and set aside another $125 million to cover other damages that may arise. Additionally, DuPont will also set p a $1.2 billion funding source and reserve fund of $475 million to ensure that even if the company fails to make payments, or goes bankrupt, public funds will not be used.

For a stark introduction into the nature of PFAS, check out Dark Waters , a compelling and criminally underrated movie based on the decades old fight waged by attorney Robert Bilott against DuPont for contaminating West Virginia rural communities.

Surprise Headline - Federal Appeals Court sides with injured plaintiff in Costco Spilled Smoothie case. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

In a rather surprising development, the 7th Circuit Court of Appeals recently handed down a decision resurrecting a plaintiff’s negligence case against Costco. I know, from painful personal experience, that federal court judges are not particularly excited to see personal injury cases on their dockets. So any helpful injury cases out of a federal court merits some discussion.

In Cruz v. Costco the plaintiff, Reyna Cruz fell while shopping in a Costco Food Court. She filed a lawsuit against Costco alleging that it had failed to clean up a Smoothie that had been spilled on the floor. Costco moved to toss the case arguing that it did not have constructive notice of the spill, so a jury could not find it negligent. The trial judge agreed and booted the case. Ms. Cruz appealed.

The facts showed that Ms. Cruz fell at roughly 1:13 pm. Costco had the Food Court under video surveillance and there was video of the area in question from 12:45 pm(roughly 30 minutes before the incident) until 1:45 pm. For nearly 30 minutes prior to the plaintiff’s fall, the video showed customers in the area. The video did not show a smoothie spill or a customer purchasing a Smoothie.

At 1:09 pm the video showed a woman in the Food Court. The woman was pushing a shopping cart with her daughter in the cart. At 1:10 the woman bent over to pick up a red item that either she or her daughter dropped. It was unclear what the item was.

At 1:13, Cruz fell. A Costco manager immediately responded but did not recall seeing anything on the floor. Two other Costco employees were seen on the video wiping around the area where Cruz fell, one with a mop and the other using a cloth or rag. After the area was cleaned a “Wet Floor” sign was set up.

The Costco Manager created an Incident Report where he wrote the Cruz fell on a Smoothie that was dropped by a customer. He also noted there was a substance or liquid on the floor. Specifically he noted there were 5 drops of Smoothie on the floor.

Costco’s motion to have the case tossed argued that there was no evidence that would allow a jury to conclude that the Smoothie had been on the floor long enough to establish constructive notice – i.e. that Costco should have known. The trial court agreed and tossed the case. Ms. Cruz then appealed.

In the Appellate Opinion, the 7th Circuit noted the business owners can be liable for injuries from foreign substances on flooring – if the customer can establish the business owner had constructive notice – by proving that the condition existed for a sufficiently long time so that a reasonably careful business owner should have discovered it.

In examining the evidence the 7th Circuit went on to note the a jury could indeed have found that the Smoothie was on the floor long enough for Costco to have constructive notice. The Appellate Court first pointed to the Incident Report which acknowledged Smoothie droplets on the floor. Additionally, the video showed customers and employees pointing to an area on the floor – evidence of a spill. And Costco employees wiped the area up. The Court concluded there was sufficient evidence to create a jury question as to whether Cruz fell on Smoothie droplets.

The next issue was how long a jury could conclude the droplets were on the floor. The Appellate Court noted that the video demonstrated that for at least 28 minutes prior to her fall there had been no clean up of the droplets. Consequently, a reasonable jury could conclude that the droplets had been present for longer than 28 minutes. The Appellate Court noted that Cruz had indeed presented evidence 1) that there was Smoothie droplets on the floor and 2) those droplets were present for at least 28 minutes. The Opinion noted that a reasonable jury could indeed have found that Costco should have discovered the spill if it was there for 28 minute, and importantly, that Costco had constructive notice.

The 7th Circuit reversed the trial court’s ruling and held that Cruz could go to trial on her negligence claim.

Experts dispute victim numbers in Uber Sexual Assault Trial. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Rideshare giant Uber is currently on trial in California in a bellwether trial involving hundreds of accusers claiming various levels of sexual assault from Uber drivers over the last several years.

Lawyers for the victims argued at the start of the trial that Uber vastly underreported incidents of sexual assault and misconduct and that Uber puts growth and profits over passenger safety. Natalie Weatherford, one of the plaintiffs’ lawyers told jurors that from 2017 to 2022, Uber reported just over 12,000 total incidents from five separate categories of “serious sexual assault” – a term apparently coined by Uber and its lawyers. Weatherford told the jury that when additional categories were included the reported incidents actually exceed 300,000.

Last week Victoria Stodden, an associate professor from USC took the stand as a statistics expert for Uber. Stodden told the jury that David Madigan Phd, plaintiffs expert, had grouped all the incidents into one category – “Sexual Malfeasance”. Stodden however, took a different approach where she broke the reported incidents down into a less serious behavior. And in her analysis, she found that two specific categories – Comments & Gestures – made up most of the reported incidents. “The category around comments and gestures, [and] and the category around leering, its about 70% of the incidents.”

Stodden broke her analysis down further by saying that it included flirting, personal questions, comments on the passenger’s appearance as well as staring/leering. On cross examination, Stodden was forced to admit that she didn’t know that precise % of the reported incidents fell into categories that Uber considered “most serious” but guessed that the number was under 30%. Curious that Uber’s expert would not know the % of “most serious” reports as that would seem to be an important fact for an expert to know. And despite Stodden’s attempt to soften most of the incidents as inappropriate comments and flirting, she had to acknowledge that that nearly one third of the reported incidents were serious.

And Stoddard was forced to acknowledge that in 2017-18 there were 5,980 serious incidents; 3,824 in 2019-20 and 2717 in 2021-22. No statistical slight of hand can soften those numbers, which translate to over 4000 sexual assaults over that three year period. Those numbers will be difficult to explain away for Uber.

Trial Judge: criminal attack outside bar not foreseeable. The Illinois Appellate Court: not so fast.... - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

The First Appellate District of Illinois handed down a decision last week speaking to the duty of a bar when a patron becomes unruly, gets ejected and then hurts another patron outside the bar. Defense firms are quick to seek dismissal of these cases arguing that the bar had no reason to anticipate the attack(in legal speak, it was not “foreseeable”). The decision in Fox v. Food & Drink Chicago is instructive, well written and provides a roadmap to trial lawyers on what facts to focus on when fighting dismissal motions.

As is often the case in late night/early morning bar fight scenarios, the background facts are somewhat convoluted and contested. The plaintiff, Shaconta Fox(“Fox”) was a patron at the Drinkhaus bar in the late evening and early morning hours of October 26 and 27, 2020. Fox was accompanied by several friends and relatives including her brother Mack Curtis (“Curtis”) and Curtis’ then girlfriend Sharina DuPleiss. At some point in the evening, DuPleiss saw Michael Ogundeyi, the husband of one of her friends, Damora Harris. DuPleiss believed that Ogundeyi was flirting with another woman. DuPleiss contacted Harris via phone and relayed what she had observed.

Twenty minutes later, around 1 am, there was some sort of fracas in the bar area which necessitated the involvement of Drinkhaus security. While unclear at the moment, the parties later learned that Harris had come to the bar shortly after hearing from DuPleiss. Harris then angrily confronted her husband – Ogundeyi. The confrontation between Ogundeyi and Harris had been sufficiently heated that security escorted both of them out of the bar. Ogundeyi was then allowed to continue hanging around the exit for 45 minutes after being escorted out.

Around 1:40 am, Drinkhaus security, preparing for closing, began directing patrons out of the bar. There was only one exit and all patrons were directed toward that exit. As Fox was leaving she noticed DuPleiss in an animated discussion with Ogundeyi. DuPleiss testified that as she was leaving she was stopped by Ogundeyi who was yelling at her and putting his hands in her face. DuPleiss was concerned that Ogundeyi and his associates might harm her and she asked nearby Drinkhaus personnel for help. Unfortunately Drinkhaus security did nothing. DuPleiss then called out to Curtis for help. Fox testified she saw Ogundeyi raise his hand toward DuPleiss and Curtis jumped in to defend DuPleiss. Curtis testified Ogundeyi had a vice grip on DuPleiss’ arm. As Curtis attempted to intervene, several of Ogundeyi’s friends jumped in and began punching Curtis.

Fox and her sister, Daja, ran over to help their brother. Plaintiff testified she saw Ogundeyi punch her sister. As Fox attempted to get her sister out of harms way, Ogundeyi punched Fox in the left eye. Drinkhaus security, who had been close by during the entire altercation, never attempted to intervene and never called the police. After the fight, Ogundeyi and several others jumped in his car and drove away.

Ogundeyi, a black belt, testified he was knocked out during the melee and immediately left the scene after he regained consciousness. He further testified he never touched anyone. Ogundeyi further testified it was his understanding that one of his friends – “Pablo” – had struck Fox. Ogundeyi did not know Pablo’s last name or where he lived. He did however, know that Pablo had left the country.

As a result of the punch, Fox suffered partial blindness in her eye. Fox filed suit against the bar.

Drinkhaus moved for summary judgement, arguing that it had no duty to protect Fox from a criminal act of a third party as that act was not reasonably foreseeable. The trial judge ruled that as Fox was not involved in the first incident inside the bar, and then intentionally inserted herself into the fight outside the bar, foreseeability could not be established. The trial judge tossed the case.

Fox appealed. Thankfully.

The appellate court opinion is a thorough analysis of what liability a bar may face when patrons are injured outside the bar. First the Court noted that generally, Illinois courts do not impose a duty to protect others from the criminal acts of third parties unless: 1) a special relationship exists between the parties and 2) the criminal act was reasonably foreseeable. The opinion went on to note that a special relationship does exist between a business owner and a patron of that business. And, while the duty to protect a patron normally ends when that patron departs the premises, there are circumstances where that duty to protect a patron exists beyond the doorway of the bar.

The Court then noted that a criminal attack by a third party is foreseeable when the circumstances would put a reasonable person on notice of the attack, or when an altercation has already begun. The evidence and testimony made clear that that multiple altercations had already taken place before Fox was injured. First, Ogunjeyi and his wife had a heated conversation in the bar leading to Ogunjeyi being escorted outside by staff. After that, there was testimony that Ogunjeyi and his friends were involved in additional altercations before Fox was injured. In light of that activity, the appellate court determined that the trial judge’s determination that the attack was not foreseeable was not warranted.

The Appellate Court then took issue with the trial judge’s focus on 1) plaintiff not being involved in any altercation inside the bar and 2) plaintiff involving herself in the fight outside the bar. The Appellate Court correctly noted Fox was not precluded from recovery even if she was not involved in the altercation inside. The Court cited to earlier appellate decisions that made it clear a victim of an attack could still recover even if the victim was not involved in an earlier altercation leading to her attacker being ejected from the bar. Importantly, the court also noted that while Fox was not involved in the initial altercation, Drinkhaus staff knew that a person in plaintiff’s group was connected to the altercation(i.e. DuPleiss making the phone call to Harris). Additionally, the Appellate Court noted that Drinkhaus staff knew that Ogunjeyi might be angry with DuPleiss and members of her party. And Drinkhaus staff knew that that Ogunjeyi had lingered outside the club long after being ejected.

The Appellate Court also addressed the trial judge’s focus on Fox intentionally inserting herself into the melee outside the club. The Appellate Court opinion correctly noted that Fox’s decision-making prior to her injury was not a proper consideration in deciding if the attack was reasonably foreseeable.

The Appellate Court reversed the decision of the trial judge and sent the matter back to the trial level for further proceedings.

Supreme Court lets $2.2 billion dollar ovarian cancer verdict stand against Johnson & Johnson - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

This important ruling got kind of lost in the news cycle.

A couple weeks ago, the United States Supreme Court refused to vacate a $2.2 billion dollar ovarian cancer verdict against Johnson & Johnson[“J & J”] . The verdict was originally returned by a Missouri jury in 2018 on behalf of 22 women. The original verdict was actually $4.7 billion but a Missouri Appellate Court reduced the award to $2 billion. Each of the women claimed that there was asbestos and asbestos-laced talc in J & J talcum powder products they used, and they developed ovarian cancer as a result.

Asbestos is known to cause cancer. Talc, in its raw form is often found in close proximity to naturally occurring asbestos. When J & J mined talc, that talc sometimes contained asbestos. And that asbestos sometimes found its way into J & J personal hygiene products. [In 2019, J & J recalled 33,000 bottles of J & J products after FDA testing found asbestos in test samples]. J & J, has known of the risk of asbestos contamination in talc products since the 1970’s.

Some 21,000 plus ovarian cancer cases are pending against J & J throughout the United States.

Appellate Court rebuffs same proximate cause argument twice in taco restaurant crash. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Back in August, 2020, Darius King was a customer inside Taqueria El Paraiso – a Waukegan Taco joint – when a car driven by Melanie Sanders crashed through a wall, striking King who suffered serious injuries. King initially sued Sanders and Alberto Leguizamo, the owner of the El Paraiso. King then settled with Sanders and then dismissed Leguizamo.

King then amended his complaint and added El Paraiso Del Pacifico, Inc[“El Paraiso”]. the corporate parent of of the restaurant. El Paraiso moved for summary judgment arguing that the cause of the crash was Sanders. The trial judge agreed and tossed the case against El Paraiso. King appealed the judge’s decision. The Appellate Court agreed with King and reversed the trial judge’s decision. Which was fortunate for King. Because a different defendant would later bring essentially the same motion – arguing that the only cause of the crash was Sanders. And the trial court would grant that motion, leading to a second appeal.

While the exact procedural sequence is not explained, apparently after El Paraiso won summary judgment, King filed a third amended complaint naming PAA, the owner and lessor of the property. King alleged that as the owner and lessor, PAA owed him a duty of care to protect him against cars crashing into the restaurant. King alleged that PAA was negligent for: (1) putting parking spaces close to the front door; (2) failing to provide sufficient protective barriers to keep a car from crashing into the restaurant; (3) failing to construct a safe eating area for patrons and (4) failing to prohibit parking in front of the restaurant.

On February 23, 2023, PAA also moved to have the case tossed, arguing that King failed to prove proximate cause, asserting that it was the negligence of Sanders that caused King’s injuries. Additionally, PAA argued that King failed to show that placing barriers or prohibiting parking in front would have prevented King’s injuries.

King, in his response, included a statement of facts showing the PAA had installed bollards(the short circular metal posts that are used to prohibit vehicle movement) at other restaurants including in spaces near the front of a similar restaurant in Elgin. Additionally, King pled that a vehicle had struck the building in approximately 2005. Finally, King included facts showing that bollards have been proven to stop a vehicle moving at speeds up to 27 mph. King argued that that he had put forth sufficient evidence to to create a question of fact as to the cause of his injuries. King also included the affidavit of an expert who insisted that the bollards were proven to be effective and would have stopped Sanders’ car from crashing into the restaurant. Additionally the Waukegan Police Department Crash Report, which included a statement from Sanders that she had inadvertently hit the gas pedal instead of the brake, was submitted.

Pedro Leguizamo was the managing member of PAA. Leguizamo was deposed, and in his deposition he admitted that he knew bollards stopped cars from entering commercial establishments. He further admitted that at another restaurant he had installed bollards between parking spots and the building. He also admitted that prior to the crash there were bollards around a trash area to prevent garbage trucks from damaging a trash corral. Finally Pedro admitted he was aware of the previous crash where a car had struck the building.

At the hearing on the summary judgment motion, PAA argued that while it may have furnished a condition to make King’s injuries possible, it was Sanders’ negligence – in mistakenly hitting the gas – that was the actual cause. The trial court agreed with PAA and tossed the case, finding that landowners are not liable for injuries caused to restaurant customers by out of control cars. The trial court held the King’s injuries were not foreseeable. King’s lawyers appealed again.

And here’s where the first Appellate Court opinion – reversing the El Paraiso summary judgement – came in handy.

The Appellate Court noted in its opinion that El Paraiso had previously sought and obtained summary judgment and that King had appealed that decision as well(“the El Paraiso appellate decision”). And the Appellate Court noted that the El Paraiso appellate decision had already provided clarity on the issue of causation. Specifically, in the El Paraiso appellate decision, the Appellate court noted that Sanders’ negligence was NOT an intervening act that immunized El Paraiso. The El Paraiso appellate court also found that El Paraiso’s breaches of duty were “substantial elements” in causing King’s injuries. Finally, the El Paraiso appellate decision concluded that King had provided sufficient evidence to create a question of fact on the issue of causation against El Paraiso.

So when the Appellate Court was called upon to review the trial court’s decision to cut PAA loose(again, on proximate cause grounds) it was the appellate equivalent of “been there, done that.” The Appellate Court concluded “we have already decided that the facts of this case created a triable issue on the element of proximate cause with respect to [El Paraiso] and have no basis to hold differently here with respect to PAA.”

The trial court’s decision granting summary judgment to PAA was reversed.

Kudos to Bartoluci Law – the lawyers for King – who doggedly pursued and secured reversal of two incorrect trial court decisions.

Tesla Ignored $60 million settlement overture before getting crushed with $242 million dollar verdict. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

According to online reports, Tesla ignored a $60 million dollar settlement overture in the wrongful death case that ultimately resulted in a $242 million dollar jury verdict against the car maker.

The lawsuit grew out of 2019 crash where a Tesla Model S with Autopilot engaged, plowed through a Florida intersection and crashed into a Chevy Tahoe. Neima Benavides Leon and her boyfriend, Dillon Angulo were standing near the Tahoe when the Tesla crashed into it. Leon was killed and Angulo suffered serious injuries. A lawsuit was filed against Tesla, asserting that although the Autopilot feature was engaged, the vehicle did not brake.

Florida law permits a monetary demand to be issued before trial. If the defendant fails to accept the demand within 30 days it is considered rejected. If the plaintiff then goes to trial and secures a verdict 25% greater than the offer, the defendant is on the hook for plaintiff’s investigative expenses and attorneys’ fees.

Tesla is appealing the jury verdict, citing “substantial errors of law and irregularities at trial.”.

Topgolf hit with $15 million dollar verdict after 9 year old suffers devastating injuries. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

Last week in Oregon, a federal jury walloped Topgolf with a $15 million dollar verdict after a child suffered devastating skull injuries after being struck with a golf club.

Topgolf first appeared on the golf scene about 20 years ago in England, offering a modern twist on the traditionally drab driving range. Topgolf facilities are part driving range, part entertainment complex, with full food and beverage menus, climate-controlled hitting bays and live music – all in a sports bar environment.

The lawsuit grew out of a November, 2021 incident at a TopGolf facility in Oregon. The nine year old child was attending a birthday party as the facility. Surveillance footage showed children from the birthday party moving about in areas designated for golfing – or “hitting areas”. Several children were seen tossing golf balls onto the driving range. The injured child then moved past a red safety line in place to keep guests clear of players swing golf clubs. As another boy prepared to hit a golf ball the child moved behind him, directly into the path of the club. The child was then struck in the forehead by the golf club.

As a result of the impact, the child suffered an open, depressed skull fracture, an orbital fracture, a traumatic brain injury and a cerebral hemorrhage. Emergency neurosurgery was required, which included the placement of three titanium plates in the child’s head. The lawsuit alleged that as as result of the injuries, the child suffers chronic headaches as well as behavioral changes.

The complaint alleged that Topgolf failed to provide the required tour and safety talk before the party. The safety talk included specific instructions to stay well behind the red line when players golfers are swinging clubs.

At trial, testimony was presented that Topgolf had been aware of similar incidents for several years. As early as 2013, a safety consultant had warned that guests were at risk of being struck by golf clubs and recommended installation of barriers – that Topgolf elected not to install. At trial, Topgolf claimed that in addition to the red warning lines, there were warning signs in place as well as recurring announcements to stay clear of the area. And Topgolf also pointed the finger at the hosts of the party, claiming they had responsibility to supervise the kids.

The jury disregarded the defense arguments and found Topgolf 97% responsible for the child’s injuries. Topgolf also faced punitive damages exposure but wisely settled that component of the plaintiff’s case after the verdict.

The Anthropic Ruling - AI can't steal your content. - Mark P. Loftus

Fri, 26 Sep 2025 15:25:28 GMT

I’m a fan of the Pivot Podcast with Kara Swisher and Scott Galloway . I usually learn something from their podcast and this morning I learned about the recent Anthropic ruling in California and how it levels the playing field – at least a little bit – against AI.

Three authors – Andrea Bartz, Charles Graeber and Kirk Wallace Johnson initiated the lawsuit against Anthropic in California in 2024. The lawsuit alleged copyright infringement against Anthropic, a leading American artificial intelligence(AI) research and development company. Specifically, the lawsuit alleged that Anthropic AI used the contents of millions of digitized copyrighted books to train the large language models behind their Chatbot – which is a computer program designed to simulate a human conversation. It should also be noted that Anthropic named their Chatbot – he goes by Claude. Some of those millions of books were legally acquired. Lot of those books however, were illegally acquired through the use of pirating websites.

Books written by Bartz, Graeber and Johnson were amongst the books Anthropic was using. The lawsuit alleged that Anthropic was pirating the content of all those books and not paying a fair price for the content.

In a June, 2025 ruling, U.S. Senior District Judge William Alsup in San Francisco ruled that Anthropic’s use of the authors’ books to train Claude qualified as fair use. But Alsup did have a problem with Anthropic saving more then 7 million other books to a “central library” which would not necessarily use those books to train Claude. So Alsup ruled that part of the case would go to trial – noting “we will have a trial on the pirated copies used to create Anthropic’s central library and the resulting damages, actual or statutory”. US Copyright law provides that willful copyright infringement can lead to statutory damages of up to $150,000 per infringed work. Anthropic, concerned about potentially catastrophic damages, settled the case shortly thereafter for $1.5 billion.

So, at least in California, AI companies have the right to train Claude and his Chatbot pals on copyrighted works – as long as they obtain copies of those books legally. Mary Rasenberger, CEO of the Authors Guild, called the settlement “…a vital step in acknowledging that AI companies cannot simply steal authors’ creative work to build their AI.”

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AutoZone gets absolutely walloped[$186 Million] for pregnancy discrimination!! - Mark P. Loftus

Some New laws of Note in Illinois.... - Mark P. Loftus

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Failure to sign divorce agreement costs sugar broker millions.... - Mark P. Loftus

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FROM THE ODD COUPLE DEPARTMENT... - Mark P. Loftus

IS FOREST PRESERVE OF COOK COUNTY LIABLE WHEN TREE LIMB FALLS AND HITS MOTORIST ON ADJACENT ROADWAY? MAYBE - Mark P. Loftus

JOE FRANCIS GAMBLES WITH JURY....AND LOSES - Mark P. Loftus

Bank VP claims her discrimination lawsuit caused her to be fired. - Mark P. Loftus

Illinois company hit with multimillion dollar "popcorn lung" verdict. - Mark P. Loftus

German Conglomerate makes a bid to end Roundup litigation