Illinois Personal Injury Lawyer Blog

The Government’s Failure at Camp Lejeune

May 5, 2020 | The Collins Law Firm, P.C.

Camp-Lejeune Update, July 2022: The House and Senate recently passed the Honoring Our PACT Act, which will allow veterans and their families to recover damages for illnesses caused by toxic water at Camp Lejeune by filing an FTCA claim, and if that claim is denied, by filing a toxic tort lawsuit in North Carolina. The Bill was expected to go to President Biden’s desk for his signature, but it is currently being blocked in the Senate by Mitch McConnell and the Republicans.

A United States Marine Corps base in Onslow County, North Carolina was the site of “the worst example of water contamination this country has ever seen.” Camp Lejeune is the second largest Marine base in the United States. Marines and their families lived on base for short periods of time learning necessary skills, since it was an amphibious training base. Then, they would leave to be stationed elsewhere. Little did they know that they were being exposed to toxic water in their temporary homes.

From the 1950s through the 1980s, people living or working at Camp Lejeune were exposed to contaminated drinking water from multiple sites on base. For instance, prior to 1986, water coming from two treatment plants—Tarawa Terrace and Hadnot Point—contained volatile organic compounds. The contamination primarily included perchloroethylene (PCE), trichloroethylene (TCE), dichloroethylene (DCE), vinyl chloride, and benzene. Throughout the base, the drinking water contained toxic chemicals at levels 240 to 3,400 times higher than what safety standards permit.

Illinois Supreme Court Bars New Trial Due to Party’s Failure to File Post-Trial Motion Attacking Jury Verdict

April 27, 2020 | Timothy Collins

law-4617873_1920-300x200 The Illinois Supreme Court issued a recent decision highlighting the dangers of commencing an appeal following a jury verdict without first filing a post-trial motion. Specifically, the Supreme Court held that a litigant is required to file a post-trial motion under 735 ILCS 5/2-1202 in order to challenge a jury’s verdict on one claim even though the trial court entered a partial directed verdict on a separate claim in the case.

In Crim by Crim v. Dietrich, the Crims filed a medical malpractice action against their doctor for claims relating to the birth of their son. The case proceeded to trial on both of plaintiffs’ claims against the doctor for her (1) failure to obtain informed consent to perform a natural birth, and (2) negligent delivery. Following the presentation of the Crims’ case, the doctor moved for and was granted a partial directed verdict on the issue of informed consent. After the parties presented additional evidence and argument, the jury returned a verdict in favor of the doctor on the remaining professional negligence claim. The Crims did not file any post-trial motions. Instead, they filed a notice of appeal.

On appeal, the Crims sought review solely as to the granting of the partial directed verdict. The Fourth District Appellate Court found that the partial directed verdict was improper, reversed the judgment and remanded the case back to the trial court for a new trial. When the case returned to the trial court, there was a dispute as to whether the reversal of the judgment and remand of the case for a new trial required a new trial on the informed consent claim and the negligence claim. Ultimately, the trial court ruled that the new trial would proceed on both claims but certified the issue for appellate review. Back on appeal, the Fourth District agreed with the trial court that the new trial should proceed on both claims. Leave to appeal this issue to the Supreme Court was then granted.

Woman’s Wrongful Death Claims Against Surgeon for the Death of an Unborn Fetus Who Died as a Result of a Lawful Abortion is Allowed to Proceed

April 24, 2020 | Timothy Collins

law-OXGhu60NwxU-unsplash-1024x566 The First District Appellate Court issued a recent decision addressing whether a pregnant woman, who is compelled to abort her fetus because of a possible injury to the fetus caused by a doctor’s negligence, can sue the doctor for the injury and death of her unborn child even though she elected to have the abortion.

The First District answered in the affirmative and ruled that the woman’s claims against the doctor for the wrongful death of the unborn fetus could proceed under Illinois’ Wrongful Death Act.

In Thomas v. Khoury, Monique Thomas was admitted to the hospital for elective surgery and during presurgical testing, her urine and blood samples displayed elevated levels of hCG, which is a potential indicator of pregnancy. An ultrasound failed to definitively show the pregnancy even though it was consistent with a pregnancy of fewer than four weeks. The surgeon told Thomas not to worry about the test results and that she was not pregnant. Thereafter, Thomas proceeded with the surgery under general anesthesia.

Understanding the Difference Between Discovery Depositions and Evidence Depositions

April 24, 2020 | Timothy Collins

law-books-291676_1920-300x225 Depositions are an enormously useful and important resource and typically the most effective way for parties to obtain information necessary for trial. Illinois rules provide for two types of depositions: discovery depositions and evidence depositions. See Ill. So. Ct. R. 202. Illinois is unique in that it is the only state that recognizes two different types of depositions. Understanding the distinction between the two is important in litigating a case and preserving the ability to introduce certain evidence at trial. While both are designed to elicit relevant evidence, the scope of what is relevant, and ultimately what is proper to ask, differs between the two types of depositions.

Discovery depositions are used for the purpose of exploring the facts that are not only relevant to the case, but also will lead to the discovery of additional evidence. In this regard, the scope and manner of questioning in discovery depositions is given great latitude. Conversely, evidence depositions are used for the purpose of preserving evidence for trial. The questioning in an evidence deposition is limited by the rules of evidence. As a result, the scope of inquiry in a discovery deposition is broader than the questioning allowed in an evidence deposition. In practical terms, the initial deposition of a witness normally will be a discovery deposition given the wider scope of inquiry afforded. Discovery depositions are usually less formal than their counterpart. Counsel participating in an evidence deposition should treat it as if he or she were at trial.

A party electing to conduct a deposition must specify in the notice or subpoena served on the witness whether the deposition will be a discovery deposition or evidence deposition. Absent a specification, the deposition will proceed for discovery purposes only. Because the type of deposition dictates the scope of questioning and what will ultimately be admissible at trial, it is important that parties understand the significance in specifying the type of deposition he or she intends to take.

Uber Eats, Door Dash, & Grub Hub Accidents: What Happens If You Are Hit by a Delivery Driver?

April 24, 2020 | Shawn Collins

uber-eats-zV95GVlaVqY-unsplash-3-300x230 Food delivery services like Uber Eats, Door Dash, Postmates, and Grub Hub have become something we rely on in today’s fast-paced world. There’s nothing quite like getting food delivered right to your door. Moreover, during the COVID-19 crisis, these services are helping restaurants stay afloat and can be a safer way to get prepared food. But do these delivery drivers carry auto accident insurance? Drivers for these delivery companies drive hundreds of miles a week. What happens if they get into an accident?

Insurance Coverage by Company

Most delivery service companies employ people as “so-called” independent contractors. However, independent contractors are not considered employees of the company, so the company may not be responsible for these drivers. How does that affect you? If one of these delivery drivers hits your car, he or she may not have insurance to cover your damages.

Insurers are trying to settle high-stakes liability cases so they can afford to defend business interruption claims

April 23, 2020 | Leonard Hudson

law-40007_1280-247x300 As plaintiffs’ lawyers representing both people and businesses, we are no strangers to dealing with insurance companies and making them pay. We have seen some very interesting developments in the insurance world since the spread of COVID-19.

The first thing we noticed: adjusters and defense attorneys started calling and offering to settle cases. We were not surprised. The insurers’ money is tied up in the markets, and the markets suddenly became uncertain. In any time of great uncertainty, people want to regain certainty. One of the things worth knowing is that big business is often willing to pay more to obtain certainty. And insurance companies are renowned for being risk-averse, certainty-seeking enterprises. (Just watch Ben Stiller in the movie “Along Came Polly.”)

The second thing we saw: insurance companies started denying claims under commercial policies for business interruption insurance coverage. Businesses everywhere are shutting down or slowing down in the wake of COVID-19. Many paid insurance premiums for years, thinking they had business interruption insurance coverage. Now, when they need it, the insurance companies are denying the claims.

COVID-19 Causes Government to Suspend Truck Driver Safety Rules

April 23, 2020 | Timothy Collins

white-volvo-semi-truck-on-side-of-road-2199293-1024x684 In response to the nationwide COVID-19 outbreak, the Federal Motor Carrier Safety Administration (FMCSA) issued an emergency declaration on March 13, 2020, increasing the hours commercial vehicle drivers can be on the road without taking a break and providing certain other relief for these drivers transporting emergency relief items. The emergency declaration was expanded on April 8, 2020, and will remain in effect at least through May 15, 2020.

The FMCSA is an agency of the federal government responsible for regulating and providing oversight of commercial motor vehicles in order to reduce injuries, crashes, and deaths involving large trucks and buses. These vehicles typically exceed 10,000 pounds.

Under the Federal Motor Carrier Safety Regulations (Regulations), a commercial motor vehicle driver is only allowed to drive a total of 11 hours during a period of 14 consecutive hours and cannot drive after the end of the 14 consecutive hour period without first taking 10 consecutive hours off. These restrictions are in place to enhance the safety of the driver and other motorists on the road by making sure drivers are getting adequate rest before operating these large vehicles. Fatigue is a major factor linked to commercial vehicle accidents. Fatigued drivers are increasingly likely to suffer a loss of attentiveness, slower reaction times, impaired judgment, and a likelihood of falling asleep.

President Trump at Odds with Insurance Companies and Fellow Republicans over Business Interruption Insurance Coverage During COVID-19

April 22, 2020 | Leonard Hudson

insurance-3113180_1920-300x200 The president recently got himself into hot water with insurance companies when he spoke about the need for insurers to make good and pay up on claims for business interruption losses in the wake of COVID-19.

In a coronavirus briefing, the president went on the offensive, criticizing insurers for denying claims by businesses that have been paying premiums for decades:

“Business interruption insurance . . . when I was in private, I had business interruption . . . When my business was interrupted through a hurricane or whatever it may be . . . if I had it [business interruption insurance], I’d expect to be paid. You have people — I speak mostly to the restauranteurs, where they have a restaurant, they’ve been paying for 25, 30, 35 years — business interruption. They’ve never needed it. All of a sudden, they need it. And I’m very good at reading language . . . And I don’t see the word ‘pandemic’ mentioned [in the policies] . . . I would like to see the insurance companies pay if they need to pay, if it’s fair. . . But business interruption insurance, that’s getting a lot of money to a lot of people. And they’ve been paying for years . . . they’ve been paying a lot of money for a lot of years for the privilege of having it. And then when they finally need it, the insurance company says, ‘We’re not going to give it.’ We can’t let that happen.”

Illinois Appellate Court Permits Discovery Deposition of Deceased Defendant to be Admitted as Evidence at Trial

April 21, 2020 | Timothy Collins

courtroom-898931_1920-3-300x226 The Fifth District Appellate Court issued a recent decision in Eyster v. Conrad finding that a deceased defendant’s discovery deposition could be introduced as substantive evidence at trial in a personal injury suit. At issue in Eyster was the lower court’s finding that the introduction of the discovery deposition would not do substantial justice between the parties and therefore could not be used as evidence. The Fifth District reversed and held that the trial court misapplied the discovery rule.

As Illinois is the only state that differentiates between discovery and evidence depositions, the ability to use a discovery deposition as evidence at trial is a unique issue faced by Illinois practitioners. The limited purposes for which a discovery deposition may be used as evidence are enumerated in Rule 212(a). Under Rule 212(a)(5), a discovery deposition may be used as evidence at trial “if the court finds that the deponent is not a controlled expert witness, the deponent’s evidence deposition has not been taken, and the deponent is unable to attend or testify because of death or infirmity.” A court must also find that the evidence sought to be introduced would do substantial justice between the parties.

In Eyster, the plaintiff commenced a personal injury suit in 2014 against the defendant alleging that the defendant’s negligent operation of his vehicle caused an accident between the parties and resulted in injuries to the plaintiff. In May of 2015, the plaintiff took the discovery deposition of the defendant. During the deposition, the defendant provided testimony that reflected he may have been negligent while driving his car. Two years later, the defendant died, and the trial court appointed a representative for the defendant to defend the suit. An evidence deposition of the defendant never took place.

Does COVID-19 Excuse Businesses from Performing Under Their Contracts?

April 20, 2020 | Leonard Hudson

business-contract-962355_1920-1-1024x768 The web of commercial contracts between businesses is essential to our community. Under ordinary circumstances, the courts provide the mechanism to enforce contracts and provide the commercial certainty that communities need for a thriving economy.

These are not ordinary times.

Few commercial contracts contemplated a “global pandemic” and you probably won’t find the term in your written agreements. Yet, as shops close and we shelter in place, businesses are wondering where they stand regarding their contractual obligations, which may have become impossible to perform. Some businesses are unable to perform because they have been ordered to close. Other businesses are unable to perform due to supply chain interruptions. Others are unable to perform because their employees are quarantined.