The Illinois Association of Defense Trial Counselc919297.r97.cf2.rackcdn.com/ugip7fy1fkkcwyijdaxoapujmfj2...The Illinois Association of Defense Trial Counsel Third Quarter 2016 l Volume

The Illinois Association of Defense Trial Counsel

Third Quarter 2016 l Volume 26, Number 3 l ISSN-2169-3668

Elizabeth K. Barton— Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., Chicago

James K. Borcia — Tressler LLP, ChicagoLindsay Drecoll Brown — Cassiday Schade LLP, Chicago

Roger R. Clayton — Heyl, Royster, Voelker & Allen, P.C., PeoriaCatherine A. Cooke — Robbins, Salomon & Patt, Ltd., ChicagoR. Mark Cosimini — Rusin & Maciorowski, Ltd., Champaign

Stacy E. Crabtree — Caterpillar, Inc., PeoriaThomas G. DiCianni— Ancel, Glink, Diamond, Bush, DiCianni &

Krafthefer, P.C., ChicagoDonald Patrick Eckler — Pretzel & Stouffer, Chartered, Chicago

Ryan M. Frierott — Goldberg Segalla LLP, ChicagoScott L. Howie — Pretzel & Stouffer, Chartered, Chicago

David A. Perkins — Heyl, Royster, Voelker & Allen, P.C., PeoriaBrad W. Keller — Heyl, Royster, Voelker & Allen, P.C., PeoriaM. Elizabeth D. Kellett — HeplerBroom LLC, Edwardsville

Edna L. McLain— HeplerBroom LLC, ChicagoR. Mark Mifflin — Giffin, Winning, Cohen & Bodewes, P.C., Springfield

Bradford J. Peterson — Heyl, Royster, Voelker & Allen, P.C., UrbanaCraig L. Unrath — Heyl, Royster, Voelker & Allen, P.C., Peoria

John F. Watson — Craig & Craig, LLC, Mattoon

COLUMNISTS

CONTRIBUTORS

PRESIDENTR. MARK MIFFLIN Giffin, Winning, Cohen & Bodewes, P.C., Springfield

PRESIDENT-ELECTMICHAEL L. RESIS SmithAmundsen LLC, Chicago

1ST VICE PRESIDENTBRADLEY C. NAHRSTADT Lipe, Lyons, Murphy, Nahrstadt & Pontikis, Ltd., Chicago

2ND VICE PRESIDENTWILLIAM K. MCVISK Johnson & Bell, Ltd., Chicago

SECRETARY/TREASURERNICOLE D. MILOS Cremer, Spina, Shaughnessy, Jansen & Siegert, LLC, Chicago

DIRECTORSDENISE BAKER-SEAL Brown & James, P.C., BellevilleELIZABETH K. BARTON Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., ChicagoLAURA K. BEASLEY Joley, Oliver & Beasley, P.C., BellevilleJOSEPH A. BLEYER Bleyer and Bleyer, MarionJEREMY T. BURTON Lipe, Lyons, Murphy, Nahrstadt & Pontikis Ltd., ChicagoADAM C. CARTER Cray Huber Horstman Heil & VanAusdal LLC, ChicagoR. MARK COSIMINI Rusin & Maciorowski, Ltd., ChampaignBRUCE DORN Bruce Farrel Dorn & Associates, ChicagoDONALD PATRICK ECKLER Pretzel & Stouffer, Chartered, ChicagoTERRY A. FOX Kelley Kronenberg, ChicagoEDWARD K. GRASSÉ Busse, Busse & Grassé, P.C., ChicagoJOHN P. HEIL, JR. Heyl, Royster, Voelker & Allen, P.C., PeoriaDAVID A. HERMAN Giffin, Winning, Cohen & Bodewes, P.C.,SpringfieldANTHONY G. JOSEPH Hay & Oldenburg, LLC, ChicagoTHOMAS L. O’CARROLL Hinshaw & Culbertson LLP, ChicagoDONALD J. O’MEARA, JR. Pretzel & Stouffer, Chartered, ChicagoIAN RUSSELL Lane & Waterman, LLP, DavenportBENJAMIN J. SAMUELSON Betty, Neuman & McMahon, P.L.C., DavenportTRACY E. STEVENSON Law Office of Tracy E. Stevenson, P.C., ChicagoPATRICK W. STUFFLEBEAM HeplerBroom LLC, Edwardsville MICHELLE M. WAHL Swanson, Martin & Bell, LLP, Chicago

EXECUTIVE DIRECTOR Sandra J. Wulf, CAE, IOM

PAST PRESIDENTS:RoyceGlennRowe• JamesBaylor • JackE.Horsley• John J. Schmidt •Thomas F.Bridgman •William J.Voelker, Jr. •BertM.Thompson • John F. Skeffington • JohnG. Langhenry, Jr. • LeeW.Ensel •L. Bow Pritchett • John F.White • R. Lawrence Storms • John P. Ewart •RichardC.Valentine•RichardH.Hoffman•EllisE.Fuqua•JohnE.Guy•LeoM.Tarpey•WillisR.Tribler•AlfredB.LaBarre•PatrickE.Maloney•RobertV.Dewey,Jr.•LawrenceR.Smith•R.MichaelHenderson•PaulL.Price•StephenL.Corn •RudolfG.Schade, Jr. •LyndonC.Molzahn •DanielR.Formeller •GordonR.Broom•CliffordP.Mallon•AnthonyJ.Tunney•DouglasJ.Pomatto•JackT.Riley,Jr.•PeterW.Brandt•CharlesH.Cole•GregoryC.Ray•JenniferJeritJohnson•StephenJ.Heine•GlenE.Amundsen•StevenM.Puiszis•JeffreyS.Hebrank•GregoryL.Cochran•RickHammond•KennethF.Werts•AnneM.Oldenburg•R.HowardJump•AleenR.Tiffany•DavidH.Levitt•TroyA.Bozarth

Illinois Association of Defense Trial Counsel

WWW.IADTC.ORG

Vincent M. Boyle — Heyl, Royster, Voelker & Allen, P.C., PeoriaQuinn P. Donnelly — Pretzel & Stouffer, Chartered, Chicago

Brad A. Elward — Heyl, Royster, Voelker & Allen, P.C., PeoriaJoseph K. Guyette — Heyl, Royster, Voelker & Allen, P.C., Urbana

Mark D. Hansen — Heyl, Royster, Voelker & Allen, P.C., PeoriaBrian T. Henry — Pretzel & Stouffer, Chartered, Chicago

Dana J. Hughes — Heyl, Royster, Voelker & Allen, P.C., PeoriaZeke N. Katz — HeplerBroom LLC, Chicago

Kevin P. Lolli — Goldberg Segalla LLP, ChicagoSommer R. Luzynczyk — Pretzel & Stouffer, Chartered, Chicago

Melissa N. Schoenbein — Heyl, Royster, Voelker & Allen, P.C., PeoriaBrett E. Siegel — Heyl, Royster, Voelker & Allen, P.C.,Springfield

J. Matthew Thompson — Heyl, Royster, Voelker & Allen, P.C., PeoriaStephanie Toth — Goldberg Segalla LLP, Chicago

Lynsey A. Welch — Heyl, Royster, Voelker & Allen, P.C.,Rockford

http://www.iadtc.org

Monograph M-I A Primer on Recent Cases Impacting Workers’ Compensation Defense, by Vincent M. Boyle, Stacy E. Crabtree, Brad A. Elward, Joseph K. Guyette, Dana J. Hughes, Brett E. Siegel and Lynsey A. Welch

Feature Articles 9 Workers’ Compensation: Never Pay Judgment Interest if You are Not Facing a Section 19(g) Judgment, by Brad A. Elward

24 Settlement Apportionment and Setoff in Illinois, by Quinn P. Donnelly and Brian T. Henry

46 Manifestation Dates: The Moving Target of Repetitive Trauma Cases, by R. Mark Cosimini

Columns 34 Amicus Committee Report, by Craig L. Unrath 51 Appellate Practice Corner, by Scott L. Howie 71 Association News 65 Civil Practice and Procedure, by Donald Patrick Eckler and Sommer R. Luzynczyk 44 Civil Rights Update, by David A. Perkins and Melissa N. Schoenbein 19 Commercial Law, by James K. Borcia 54 Construction Law, by Lindsay Drecoll Brown 7 Editor’s Note, by John F. Watson 16 Evidence and Practice Tips, by Brad W. Keller 40 Health Law, by Roger R. Clayton, Mark D. Hansen and J. Matthew Thompson 2 IDC 2016 – 2017 Board of Directors 4 IDC 2016 – 2017 Committee Chairs and Vice Chairs 80 IDC Comparative Law Seminar Registration 82 IDC Trial Academy Registration 87 IDC Membership and Committee Applications 86 IDC New Members 21 Legislative Update, by R. Mark Cosimini 61 Medical Malpractice Update, by Edna L. McLain and Zeke N. Katz 59 Municipal Law, by Thomas G. DiCianni 6 President’s Message, by R. Mark Mifflin 22 Product Liability, by Ryan M. Frierott, Kevin P. Lolli and Stephanie Toth 36 Property Insurance Law, by Catherine A. Cooke 12 Recent Decisions, by Stacy E. Crabtree 30 Supreme Court Watch, by M. Elizabeth D. Kellett 56 Workers’ Compensation Report, by Bradford J. Peterson 69 Young Lawyers Report, by Elizabeth K. Barton

Third Quarter 2016 | IDC QUARTERLY | 1

IDC QUARTERLYEDITORIAL BOARD

John F. Watson,Editor-in-ChiefCraig & Craig, LLC, Mattoon

[email protected]

Tara Wiebusch Kuchar,ExecutiveEditorHeplerBroom LLC, [email protected]

J. Matthew Thompson, Associate EditorHeyl, Royster, Voelker & Allen, P.C., Peoria

[email protected]

Catherine A. Cooke, Assistant EditorRobbins, Salomon & Patt, Ltd., Chicago

[email protected]

Jeremy T. Burton, Assistant EditorLipe, Lyons, Murphy, Nahrstadt &

Pontikus, Ltd., [email protected]

James P. DuChateau, Assistant EditorJohnson & Bell, Ltd., Chicago

[email protected]

The IDC Quarterly is the official publication of the Illinois Association of Defense Trial Counsel. It is published quarterly as a service to its members. Sub-scriptions for non-members are $100 per year. Single copies are $25 plus $5 for postage and handling. Requests for subscriptions or back issues should be sent to the Illinois Association of Defense Trial Counsel headquarters in Rochester, Illinois. Subscription price for members is included in membership dues.

Manuscript PolicyMembers and other readers are encouraged to submit manuscripts for possible publication in the IDC Quar-terly, particularly articles of practical use to defense trial attorneys. Manuscripts must be in article form. A copy of the IDC Quarterly Stylistic Requirements is available upon request from The Illinois Association of Defense Trial Counsel office in Rochester, Illinois. No compensation is made for articles published, and no article will be considered that has been submitted simultaneously to another publication or published by any other publication. All articles submitted will be subjected to editing and become the property of the IDC Quarterly, unless special arrangements are made.

Statements or expression of opinions in this publi-cation are those of the authors and not necessarily those of the Association or Editors. Letters to the Editor are encouraged and welcome, and should be sent to the Illinois Association of Defense Trial Counsel headquarters in Rochester, Illinois.

Editors reserve the right to publish and edit all such letters received and to reply to them. IDC Quarterly, Third Quarter 2016, Volume 26, No. 3., Copyright © 2016 The Illinois Association of Defense Trial Counsel. All rights reserved. Reproduction in whole or in part without permission is prohibited.

THE ILLINOIS ASSOCIATION OF DEFENSE TRIAL COUNSEL • P.O. Box 588 • Rochester, IL 62563-0588800-232-0169 • 217-498-2649 • FAX 866-230-4415 [email protected] • www.iadtc.org

SANDRA J. WULF, CAE, IOM, Executive Director

IN THIS ISSUE

http://craiglaw.net

http://heplerbroom.com

http://heylroyster.com

http://rsplaw.com

http://lipelyons.com

http://jbltd.com

http://iadtc.org

http://www.iadtc.org

mailto:[email protected]







2 | IDC QUARTERLY | Third Quarter 2016

President-ElectMICHAEL L. RESISSmithAmundsen LLC

Chicago

First Vice PresidentBRADLEY C. NAHRSTADT

Lipe Lyons Murphy Nahrstadt & Pontikis, Ltd.

Chicago

Second Vice PresidentWILLIAM K. McVISK

Johnson & Bell, Ltd.Chicago

Secretary/TreasurerNICOLE D. MILOS

Cremer, Spina, Shaughnessy, Jansen &

Siegert LLCChicago

PresidentR. MARK MIFFLIN

Giffin, Winning, Cohen& Bodewes, P.C.

Springfield

2016-2017OFFICERS and DIRECTORS

LAURA K. BEASLEYJoley, Nussbaumer,

Oliver & BeasleyBelleville

BRUCE DORNBruce Farrel Dorn & Associates

Chicago

JOSEPH A. BLEYERBleyer and Bleyer

Marion

R. MARK COSIMINIRusin & Maciorowski, Ltd.

Champaign

DONALD PATRICK ECKLERPretzel & Stouffer, Chartered

Chicago

JEREMY T. BURTONLipe Lyons Murphy

Nahrstadt & Pontikis, Ltd.Chicago

DENISE BAKER-SEAL

Brown & James, P.C.Belleville

ELIZABETH K. BARTONAncel, Glink, Diamond, Bush,

DiCianni & Krafthefer, P.C.Chicago

ADAM C. CARTERCray Huber Horstman Heil &

VanAusdal LLC Chicago


EDWARD K. GRASSÈBusse, Busse & Grassé, P.C.

Chicago

TERRY A. FOXKelley Kronenberg

Chicago

PATRICK W. STUFFLEBEAMHeplerBroom LLC

Edwardsville

DONALD J. O’MEARA, JR.Pretzel & Stouffer, Chartered

Chicago

TRACY E. STEVENSONLaw Office of Tracy E. Stevenson, P.C.

Chicago

MICHELLE M. WAHLSwanson, Martin & Bell, LLP

Chicago

BENJAMIN J. SAMUELSONBetty, Neuman & McMahon, P.L.C.

Davenport

IAN RUSSELLLane & Waterman, LLP

Davenport

THOMAS L. O’CARROLLHinshaw & Culbertson LLP

Chicago

ANTHONY G. JOSEPHHay & Oldenburg, LLC

Chicago

DAVID A. HERMANGiffin, Winning, Cohen & Bodewes, P.C.

Springfield

JOHN P. HEIL, JR.Heyl, Royster, Voelker & Allen, P.C.

Peoria


2016-2017COMMITTEECHAIRSandVICECHAIRS

Craig L. Unrath, ChairHeyl, Royster, Voelker & Allen, [email protected]

AMICUS COMMITTEE

John F. Watson, Vice ChairCraig & Craig, LLC, [email protected]

CIVIL PRACTICE COMMITTEEAdam C. Carter, ChairCray Huber Horstman Heil & VanAusdal LLC, [email protected]

Donald Patrick Eckler, Vice ChairPretzel & Stouffer, Chartered, [email protected]

COMMERCIAL LAW COMMITTEE

CONSTRUCTION LAW COMMITTEEPatricia J. Hogan, Co-ChairCassiday Schade LLP, [email protected]

Aleen Tiffany, Co-ChairHeplerBroom LLC, Crystal [email protected]

EMPLOYMENT LAW COMMITTEEDenise Baker-Seal, ChairBrown & James, P.C., [email protected]

James L. Craney, Vice ChairCraney Law Group LLC, [email protected]

EVENTS COMMITTEEGregory W. Odom, ChairHeplerBroom LLC, [email protected]

Megha Shah, Vice Chair Greensfelder, Hemker & Gale, P.C., Belleville 618-257-7308 [email protected]

Mark J. McClenathan, Chair Heyl, Royster, Voelker & Allen, P.C., Rockford 815-963-4454 [email protected]

Kelly A. Pachis, Vice ChairLowis & Gellen, [email protected]


http://craiglaw.net

http://cassiday.com


http://crayhuber.com

http://stouffer.com


http://greensfelder.com

http://bjpc.com

http://craneylaw.com


http://gellen.com














INSURANCE LAW COMMITTEE

LEGISLATIVE COMMITTEE

LOCAL GOVERNMENT LAW COMMITTEEJohn O’Driscoll, ChairTressler, LLP, [email protected]

MEMBERSHIP COMMITTEE

TORT LAW COMMITTEE

Patrick W. Stufflebeam, ChairHeplerBroom, LLC, Edwardsville618-656-0184 [email protected]

N. Drew Kemp, ChairThompson Coburn, LLP, [email protected]

Howard L. Huntington, Vice ChairBullaro & Carton, P.C., [email protected]

YOUNG LAWYER DIVISION

Elizabeth K. Barton, Vice Chair Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, [email protected]

James P. DuChateau, ChairHeplerBroom LLC, [email protected]

Michael L. Young, Vice ChairHeplerBroom LLC, St. [email protected]

Donald Patrick Eckler, ChairPretzel & Stouffer, Chartered, [email protected]

John Eggum, Vice ChairForan Glennon Palandech Ponzi & Rudloff, PC, [email protected]

John Eggum, Vice ChairForan Glennon Palandech Ponzi & Rudloff, PC, [email protected]

Seth Lamden, Chair Neal, Gerber & Eisenberg LLP, Chicago 312-269-8000 [email protected]

http://ngeaw.com



http://thompsoncoburn.com

http://stouffer.com

http://bullarocarton.com

http://fgppr.com

http://tresslerllp.com

http://ancelglink.com

http://fgppr.com














R. Mark MifflinGiffin, Winning, Cohen & Bodewes, P.C., Springfield

President’s Message

TheIllinoisAssociationofDefenseTrialCounselisoneofthepremierde-fenseorganizationsintheUnitedStates.AsIassumethepresidencyoftheIDC,Iwasponderingwhat towrite formyfirstPresident’sMessage. Iwanted toclearlyconveyhowtrulygreattheIDCis for itsmembersandfor the Illinoisciviljusticesystem.Readingout-goingPresidentTroyBozarth’s President’sMessage from the last edition of theIDC Quarterly broughtmymessageintofocusbydetailingthewide-rangingeffortsoftheIDCoverthelastyear.IamexcitedtobecomethePresidentoftheIDC and it is my sincere hope that I can continuetoguideitdownthepaththathasbeensosuccessfullynavigatedbymy predecessors as members, directors, Executive Committeemembers, andpresidents.TheIDChas,andwillcon-tinuetostrivetoworkforandsupportits members and to protect and improve the civil justice system in Illinois forour clients, legal system participants,andthepublic.

I hope that all IDC members agree thatwemakeeveryefforttosupportthemembership in a variety ofways.Themost obvious includes educating ourmembers as to developments in the law, generallyandinspecificareasofprac-tice,throughCLEcoursesandseminars,and the IDC Survey of Law.The IDCalsopublishestheIDC Quarterly which contains committee reports, articles, and

more extensive monographs on a variety oftopicsandareasofthelaw.

TheIDCalsomakesaspecialeffortto reach out to young attorneys andnewmembers. For example, theTrialAcademyisanexcellentopportunityforyoung lawyers to learn the techniquesofpracticinglawinthecourtroom.Itisalsoagreatopportunitytointeractwithotheryounglawyersandmoreseasonedfacultymembers.(Seepage82.)

itsmembers inavarietyofways.And,don’tbeshy.Letusknowifthereareotherwaysinwhichwecanhelpyou.

TheadvocacyeffortsoftheIDCarenotasreadilyapparenttoourmembers,butarejustasimportant.Formorethan50years,theIDC’sleadershiphasbeendevotedtopromotingfairnessintheciviljustice system in Illinois.Examplesofthis commitment includeaveryactiveAmicus Committee, reviewing andbecoming involved incasesof interesttothesubstantiveareasoflawimportanttoourmembersandthefunctioningandlegitimacy of the civil justice systemitself.

The Legislative Committee reviews legislationfiledintheGeneralAssemblyandgetsinvolvedwithsubstantiveissues

While it must be recognized that the current political

climate in Illinois is not always favorable to the

pursuits of the IDC, be assured that the IDC will

continue to work with these interested parties

to defend what is right in the law and our system,

and to improve what is not.

IDCmembersalsoreceiveemailup-dates and have access to website postings throughouttheyearthatupdatememberson noteworthy cases, new legislation, andprovideaforumforquestionsaboutexpertsandotherwitnesses.

Numerous social activities are alsoofferedtoallmembersoftheIDCtomakeandrenewpersonalandprofessionalcon-tactsandtodiscusslegalissuesofimport.Truly,theIDCisdedicatedtosupporting

ofthelawandissuesinvolvingthecourtsandciviljusticesystem.TheIDChasalsoworkeddirectlywithlegislativesponsorsto promote legislation to level the playing fieldinlitigationand,inotherinstances,workedtostaveoffeffortsofotherstoundermine the fairness of the currentsystem.TheCommittee’s efforts alsoinvolveworkingwithGovernorRaunerandhisstaffregardingsuchlegislationtoensurethatthefullimpactofthesebillsis


— Continued on next page

understood.TheCommitteealsoreachesout to and works with the businesscommunity and the insurance industryto foster thesegoals.While itmustberecognized that the current politicalclimateinIllinoisisnotalwaysfavorableto the pursuits of the IDC, be assuredthattheIDCwillcontinuetoworkwiththeseinterestedpartiestodefendwhatisrightinthelawandoursystem,andtoimprovewhatisnot.

Forthoseofyouwhohavepartici-pated in thepastandcurrenteffortsoftheIDC,Isaythankyou.Thestrengthandsuccessof the IDCarises from itsmanyvolunteers.Forthoseofyouwhohave not been actively involved, I say, pleasejoinus.WeneedyourhelptomaketheIDCevenbetteraswegoforward.Writeanarticleforthe IDC Quarterly, serveonthefacultyorattendaseminar,contactyourlegislatortoexplainabill,makeaPACcontributiontohelpextendtheoutreachoftheLegislativeCommit-tee, join a substantive law committeeto help your fellowmembers and tohelp yourself in your practice. Pleasetake advantageof these, or oneof themyriadotheropportunitiesavailable,tostrengthentheIDC.YourparticipationonbehalfoftheIDCwillnotonlyleadtogreat and long-lasting relationships with otherIDCmembers,butwillalsohelpyoutolearnmoreaboutourorganizationandaboutyourself.

I look forward toagreatyearandwelcomeyourparticipation.

John F. WatsonCraig & Craig, LLC, Mattoon

Editor’s Note

It is with great excitement that I beginmytenureastheEditor-in-ChiefoftheIDC Quarterly.Inadditiontomynew role,TaraWiebuschKucharwillbeservingas theExecutiveEditor forthecomingyear.J.MatthewThompsonandCatherineA.CookecontinueonasEditors from prior years. Finally,wewelcome two new editors to the IDC Quarterly Editorial Board, JeremyT.Burton and James P.DuChateau. Ipersonallythankthemallfortheirhardworkonthisissue.

This volume of theQuarterly focusesonworkers’compensationissueswith a Monograph prepared by several attorneys fromHeyl, Royster, Voelker & Allen, P.C.discussingindetailrecentIllinoisAppellateCourtcasesandnewstatutory provisions from theGeneralAssemblyimpactingthelawofworkers’compensation.WealsohavetwoFeatureArticlesfocusingonworkers’compensa-tionissuesauthoredbyR.MarkCosi-miniofRusin & Maciorowski, Ltd. and BradA.ElwardofHeyl, Royster, Voelker & Allen, P.C. In addition to Monograph and Features, this volume offers theWorkers’CompensationReportpreparedbyBradfordJ.Peterson.

ThisissuecontainstheMonograph,three FeatureArticles, and 18 of ourregularcolumns.QuinnP.DonnellyandBrianT.HenryfromPretzel & Stouffer, Chartered has prepared a very interest-ingFeatureonsettlementapportionment

andsetoffsinIllinois.Itprovidesguid-ance on preserving the right to setoffand offers strategic considerations inanalyzingthedefense,necessaryplead-ings,andproofafterverdict.Ourregularcolumnists offer their perspective onnew and developing authorities: ourProductLiabilitycolumnoutlinesinter-estingpleadingissuesincasesinvolvingmultiple defendants; ourHealth Lawcolumn addresses a compelling issueabout consent forms for non-Englishspeaking patients presenting for careandtreatmentathospitals;theMedicalMalpractice Update provides an analysis ofdevelopingauthoritiesonthestatuteoflimitations,statuteofreposeandtherelation back doctrine; and theCivilRightsUpdate breaks down a recentinterestingcaseonqualified immunityrelatingtothearrestofabusinessownerharvestingtimberpursuanttoacontract.

Stacy E. Crabtree’s column onRecentDecisionsoutlinesnewauthori-tiesrelatingtolostprofessionalfeesandemployee disciplinary proceedings, and a personal injury case involvingthe locally famous “Wiener’sCircle”hot dog, hamburger and cheese friesestablishmentonClarkStreetinLincolnPark,Chicago. I personallyhave fondmemoriesoftheWiener’sCirclepatron-izingthatestablishmentontheweekendswithmy law school friend, and nowwife,backintheearly1990s.Visiting


Editor’s Note | continued

theWiener’s Circle is now a familytradition that I have passed down to my sonwhenwetakeinahockeygameorbaseballgameupinChicago.Soitwasinteresting,tosaytheleast,toseeoneofouroldestablishmentsintheadvancedsheets and now discussed in the IDC Quarterly.

Additional new developments are discussed byThomasG.DiCianni in hisMunicipalLawcolumn,byLindsayDrecoll Brown intheConstructionLawcolumn,andbyCatherineA.Cookeinthe Property Insurance Law column.JamesK.Borcia has prepared a very interesting article on the United States SupremeCourt’s recent decision on aclass action matter in his Commercial Law column. Elizabeth D. Kelletthas outlined three new cases that arebeforetheIllinoisSupremeCourtintheSupremeCourtWatchcolumn.

Inadditiontoourupdateswithre-gardtodevelopinglaw,ScottHowiehasprepared his typically excellent practice guideonbriefwritingintheAppellatePracticeCorner.BradKeller providesthoughtsonwhenitmightbeappropri-ate to plead an affirmative defense asto a Kotecki limitation, and the proofrequiredtoestablishthelimitation,intheEvidenceandPracticeTipscolumn.PatEckler andSommerLuzynczykdiscussanumberofinterestingpointswithregard

to discovery relating to social media in theCivilPracticeandProcedurecolumn,which dovetails nicely with ElizabethBarton’s discussionof socialmedia intheYoung Lawyers Report. Finally,CraigUnrath,theChairoftheAmicus

Visiting the Wiener’s Circle is now a family tradition that I have passed down to my son when we take

in a hockey game or baseball game up in Chicago. So it was interesting, to say the least, to see one of

our old establishments in the advanced sheets and now discussed in the IDC Quarterly.

Committee,outlines the IDC’scurrentactivityofthemembershipinpreparingandfilingAmicus Curiae briefs in theIllinoisAppellate Court and IllinoisSupremeCourt.

AsIcloseout,IstronglyencourageallmembersoftheIDCtoconsidersub-mittingFeatureArticlesforpublicationinthe Quarterly.Inadditiontoofferingyourexpertiseandknowledgeinaparticularfieldoflawforourmembers,itisagoodwaytoearnMCLEcreditunderSupremeCourtRule795(d)(7).Onceagain,onbe-halfoftheEditorialBoardwewouldliketothankthecolumnistsandcontributors,and the authorsof theMonograph andFeatures,fortheirhardworkandeffortsonbringingthisvolumetogether.

CORRECTIONRegrettably,intherecentlypublished2015 IDC Survey of Law, Howard L. Hunt- ingtonofBullaro & Carton, P.C.wasnotincludedasacontributortotheTortLawSection.WeapologizeforthisoversightandthankMr.Huntingtonandallofourvolunteersfortheirhardworkonthepublication.

Brad A. Elward is a part-ner in the Peoria office of Heyl, Royster, Voelker & Allen, P.C. He practices in the area of appellate law, with a sub-concentration in workers’ compensation ap-peals and asbestos-related appeals. He received his

undergraduate degree from the University of Illinois, Champaign-Urbana, in 1986 and his law degree from Southern Illinois University School of Law in 1989. Mr. Elward is a member of the Illinois Appellate Lawyers Association, the Illinois State, Peoria County, and American Bar Associations, and a member of the ISBA Work-ers’ Compensation Section Counsel.



About the Author

Feature Article

The past 18months have seen amarked increase in the frequency atwhichclaimant’sattorneysaredemand-ing,andsometimespetitioningfor,ninepercentjudgmentinterestonaworkers’compensationawardattheconclusionofajudicialreviewoftheIllinoisWorkers’CompensationCommission’s(Commis-sion)decision.Insuchcases,theusualscenarioisasfollows—theCommissionentersanawardinfavoroftheclaimantfor benefits and the employer appealsto thecircuitcourtandbeyond.At theconclusionof theunsuccessful appeal,theemployerpaystheawarddueandow-ingandissuesacheckfortheoutstandingamountoftheawardplusinterestatthesection19(n)ratesetforthinthearbitra-tor’sdecision.820ILCS305/19(n).

Section 19(n) interest rates, beingtiedtotheyieldonindebtednessissuedby the United States Government with a26-weekmaturityontheauctiondateprior to the date on which the decision is filed,areextremelylow.Id.Forexample,ifthearbitrator’sdecisionwasrenderedonMay8,2016, theauctionrateasofMay6,2016was0.38percent.Thus,forevery$1,000ofanawardowed,interestwouldaccrueattherateof$3.80peryear.

IfweassumetheappealoftheMay8,2016Commissiondecisionconcludedfollowing an appellate court reviewat18months,usingourexampleabove,a$200,000benefitsawardwouldgeneratesection19(n)interestof$760annually($2.08 per day).Our employerwould

Workers’ Compensation: Never Pay Judgment Interest if You are Not Facing a Section 19(g) Judgment

then issue a check for the award plusinterestintheamountof$201,140.

The recent trend, however, has been forclaimant’sattorneystodemandpay-mentofninepercentjudgmentinterestunder section 2-1303 of the IllinoisCode of Civil Procedure. 735 ILCS5/2-1303.While some are limiting thenine percent demand to the period oftimeaftertheentryofthecircuitcourt’sorder confirming the Commission’sdecision,many are seeking the highernine percent rate for the entire periodfrom thearbitrator’s award to thedateoftender.Inourexample,applyingthenine percent judgment interest rate tothe$200,000benefitsawardwouldyield$18,000annuallyininterest($49.32perday).Usingan18-monthappealperiod,totalinterestundersection2-1303wouldtotal$27,000.

Asyoucansee,thedifferencesarestriking—thereisa$25,860gapbetweenthesection19(n)rateandtheninepercentjudgment rate of section 2-1303.Thisarticleprovidesaquickoverviewofthelaw governing this area and provides some useful tips for defending youremployerwhentheclaimant’sattorneyasksforjudgmentinterest.

The Status of the Law on Interest

Section 19(n) interest applies toallCommissionawardsuntilpaid.820ILCS305/19(n);Radosevich v. Indus. Comm’n,367Ill.App.3d769,777(4th

Dist. 2006).This, of course, assumesthattheemployer/carrierhasnotactuallyrefusedtopaytheawardandjustifiablyfoundthemselvesinatruesection19(g)scenario.But that isa separatediscus-sion.Interestundersection19(n)issetattheratefoundonU.S.governmentaltreasurybillswitha26-monthmaturityas of the last auctiondate prior to thearbitrator’s award.Over the past fewyears, this rate, which was set by the Illinois General Assembly by amendment to section 19(n) in 1984, has been aslowas0.11percent;roughly,$1.10per$1,000ofaward.

Section2-1303oftheIllinoisCodeofCivilProcedureaddresses judgmentinterestandprovides,inrelevantpart:

Judgments recovered in anycourtshalldrawinterestattherate of 9% per annum fromthedate of the judgment untilsatisfiedor6%perannumwhenthejudgmentdebtorisaunitoflocalgovernment,asdefinedinSection1ofArticleVIIoftheConstitution, a school district,

Brad A. ElwardHeyl, Royster, Voelker & Allen, P.C., Peoria


Feature Article | continued

acommunitycollegedistrict,oranyothergovernmentalentity.Whenjudgmentisentereduponany award, report or verdict, interest shall be computed atthe above rate, from the timewhen made or rendered to the timeofenteringjudgmentuponthe same, and included in thejudgment.

735ILCS5/2-1303.Thatsame$1,000awardofbenefits,

using the section 2-1303 interest rate,nowtranslatesto$90ininterest.

According to the claimant’s bar,section2-1303judgmentinterestappliesbecausetheybelievethecircuitcourt’sorderconfirmingtheCommission’sdeci-sionisajudgment,which,therefore,fallsunderthefirstsentencesectionof2-1303.

The Commission Decision is Not a Judgment

Contrary towhatmany claimants’counselargue,aCommission’sdecision,standingalone,isnotajudgment.Blacke v. Indus. Comm’n,268Ill.App.3d26,28(3dDist.1994);Radosevich,367Ill.App.3dat780;Aurora East Sch. Dist. v. Dover,363Ill.App.3d1048,1054-1055(2dDist.2006).ThesolemeanstoenterjudgmentonaCommissionawardisviaa section 19(g) proceeding. 820 ILCS305/19(g);Juergens Bros. Co. v. Indus. Comm’n,290Ill.420,424(1919).

The Circuit Court’s Order Confirming the Commission’s Award

is Not a Judgment

When presented with a demandfor section 2-1303 judgment interest,the claimant’s bar often argues thatthe circuit court’s order confirming

the Commission’s decision creates a“judgment” providing the foundationforapplicationofsection2-1303.Here,theclaimant’sbaroverlooksthelimitednatureofthecircuitcourt’sjurisdictionon judicial review.Section19(f)(2) oftheWorkers’CompensationAct (Act),whichgovernsjudicialreviewsfromtheCommissiontothecircuitcourt,veststhecircuitcourtwithlimitedpowertoreviewtheCommission’sdecision;inessence,restricting the court to either affirmorreverseandremand,ortomakesuchrul-ingsaspermittedbylaw.Esquivel v. Ill. Workers’ Comp. Comm’n,402Ill.App.3d156,159(2dDist.2010);Nierman v. Indus. Comm’n,329Ill.623,627(1928).

In fact, a line of Illinois SupremeCourtdecisionshasspecificallyheldthatacircuitcourtonjudicialreviewcannotenter judgment, lacks thepower to taxcosts or interest and cannot authorizeenforcement.Interlake Steel Corp. v. In-dus. Comm’n,60Ill.2d255,262(1975);Juergens Bros. Co.,290Ill.at424;Grand Trunk W. Ry. Co. v. Indus. Comm’n,291Ill. 167, 178 (1919);Nierman, 329 Ill.at627;J.E. Crowder Seed Co. v. Indus. Comm’n,347Ill.86,91(1931);see also 3T.Angerstein,IllinoisWorkmen’sCompensation§2150,pp.34-45(rev.ed.1952).Ineachcase,theIllinoisSupremeCourtbased itsdecisionon the limitedscopeofjudicialreview,asprovidedforby section19(f) of theAct. 820 ILCS305/19(f)(2).While circuit courts arecourtsofgeneraljurisdiction,whentheyexerciseaspecialjurisdictionnotarisingoutofthecommonlawbutofapurelystatutoryorigin,theyarelimitedbythelanguage of the statute.Esquivel, 402Ill.App.3dat159.Wheresuchastatuteprescribesaspecificformofreview,allotherformsareexcluded.Id.

Somehavesuggestedthatthecircuitcourtpossessespowertoenterjudgment

basedonapplicationofsection3-111(a)(8)oftheIllinoisAdministrativeReviewLaw (ARL). 735 ILCS 5/3-111(a)(8).Yet, the law is clear that the ARL does not apply to workers’ compensationappeals,whicharegovernedexclusivelyby section 19(f) of theAct.Farris v. Ill. Workers’ Comp. Comm’n, 2014 ILApp (4th) 130767WC, ¶ 46. Indeed,section3-111(a)(8)confersmuchgreaterjurisdictiononacircuitcourtreviewinganadministrativerulingunderthescopeoftheARLthandoessection19(f)oftheWorkers’CompensationAct.

The long and short is simple— acircuitcourt’sorderconfirmingaCom-missionawardcreatesafinaljudgmentsolely for the purposes of finality andsubsequent appeal, and has no impactonitsenforceability.Assuch,judgmentinterest cannot bebasedon the circuitcourt’sorderconfirmingaCommissionaward.

Nine Percent Judgment Interest is Only Available Following the Entry of a Section 19(g) Judgment Order, and Then Only on Those Amounts

Outstanding at that Time

Thereisnoquestionthatonceajudg-mentorderisenteredundersection19(g),anybenefitamountsthatremaindueandowingatthattimeisthensubjecttothehigherninepercentjudgmentinterestrate.Sunrise Assisted Living v. Banach, 2015 ILApp(2d)140037,¶¶32,35.Thus,ifanemployerfailstotimelypayanawardinfull,theclaimantmayfileasection19(g)petitionandobtainentryofjudgmentontheCommission’saward,withthatorderreflecting the outstanding amount dueand imposing section2-1303 judgmentinterest.See820ILCS305/19(g).

In our example, assume the em-ployer has a $200,000 benefits award



and pays a portion of that during thependencyoftheappeal(becausecertainissues are not in dispute), but fails tomake timely payment of the balancefollowingtheconclusionoftheappeal.Inourhypothetical,assumetheemployerfailed topay$50,000of theaward.Atthe time of the circuit court section19(g)judgmentorder,judgmentwillbeenteredontheCommission’sorderandwillnotethat$50,000remainsdueandowing.Moreover,section2-1303judg-mentinterestattherateofninepercentper annum applies to the outstandingamountandfromthedateoftheoriginalarbitration award.Radosevich, 367 Ill.App.3dat777.

Again, using our above example,ifthearbitrator’sawardwasenteredonMay8,2016, a timelypaymentof thefull amount following the conclusionofan18-monthappealwouldresult inthe employer paying $190per year ininterestontheremaining$50,000,foratotalinterestamountof$285.However,ifthatamountisnottimelypaidandasection 19(g) proceeding follows, theninepercent interest yields$4,500peryear, for a total amount of interest of$6,750.

Ninepercentjudgmentinterestcan-notapplypriortotheentryofasection19(g) order entering judgment on theCommission’s decision.A claimant isentitledtosection2-1303judgmentinter-est“ifandwhenthearbitrator’sawardor the Commission decision becomes an enforceablejudgment.”Sunrise Assisted Living,2015ILApp(2d)140037,¶32.Itcannotbebasedonthecircuitcourt’saffirmanceorder.

Despitethisbodyoflaw,theclaim-ant’s bar is nevertheless filing section19(g)petitionsevenwhereanemployerhastenderedtheentireawardplussec-tion19(n) interest.Counsel thenargue

that the employer has refused to paythehigherrateofinterest(basedonthecircuit court’s affirmance order) andis therefore acting unreasonably andvexatiously.Yet recent case lawholdsthat where an award is paid at the time asection19(g)petitionisfiled,thereisnorefusaltopay,andthepetitionshouldbedenied.Id.¶35.Thus,asection19(g)judgmentcannotbeentered.

Anotherissuewithclaimants’effortstoproceedundersection19(g)isthefactthatsomepetitioners’attorneyswronglybelievethatsuchapetitionmaybefiledas an ancillary pleading in a judicialreviewcasefollowingtheconclusionoftheappeal.Inotherwords,theclaimantsare filing the section 19(g)motion toenforcein the judicial review captioned case; this is wrong.A circuit courtcannot entertain section19(g) relief inajudicialreviewproceeding;aseparateproceedingfiledinthecircuitcourt,andnoticed via theCommission,must befiled and served. 820 ILCS305/19(g).Thisdistinctionisimportantbecauseanyproceedingsbeforethecircuitcourtonanimproperlyfiled section19(g) petitionwould be deemedvoid and a separatefilingwouldhavetofollow.Theresultisawasteoftheemployer’sandcarrier’stimeandmoney.

How to Respond to Demands for Nine Percent Judgment Interest

Avoidingtheapplicationofsection2-1303’shigherninepercent judgmentinterest rate begins with the simple act ofpayinganawardassoonasitisdueand owing and further appeal is ruledout.Moreover,thecheckshouldincludeallinterestdueonallamountsowedinaccordancewithsection19(n).Iftheseprinciplesarefollowed,anemployerwillbeinthebestpositionmovingforward.

Ifthetenderedinterestisaccepted,thecaseisoverandthefilemaybeclosed.Ifnot,therecanbenorealargumentthattheemployerhasrefusedtopaytheawardwhenitbecamedue.

Iftheclaimant’scounselarguesforapplicationofsection2-1303(inwholeor in part), the response should be aresounding“no,”followedbyasummaryofthepointsnotedabove—ninepercentinterest is only due on those amountsoutstandingat the timeasection19(g)proceedingreducesaCommissiondeci-sion to a judgment.Prior to that time,section19(n)interestapplies.

Therewere certainly a number ofodddecisionsconcerningsection19(n)duringthelate1980sand1990s,whichblurredthelinesofwhensection19(n)appliedandwhensection2-1303interestcommenced.BradA.Elward&DanaHughes,Understanding Interest and Enforcement Issues in Workers’ Com-pensation Cases Following an Award of Benefits,39S.Ill.U.L.J.687,698-692,701-703(2015);R.WayneHarvey,The “Thankless Task” of Computing Interest on Workers’ Comp. Awards,80Ill.B.J.510,512(1992).Butthefactremainsthatsection2-1303isconditionedonajudgment,whichdoes not exist unlessanduntiltheCommission’sdecisionisreducedtojudgmentundersection19(g).

If only a portion of the amountsowed are readily determinable—suchaswheremedical bills subject to themedical fee schedule remain to bedetermined—theknownamountsshouldbe paid and accompanied by a letter to opposing counsel explaining that theknown benefits are being paid withapplicable section 19(n) interest.ThelettershouldalsostatethattheemployerintendstopayallremainingamountsofmedicaldueinaccordancewiththeCom-



mission’sdecision,butthatthemedicalbills have been submitted formedicalfeeschedulereview.Inthatinstance,itisverydifficulttomakeaclaimthattheemployerhasactedunreasonably.More-over, if theclaimant’sattorneydecidestopushforhigherjudgmentinterest,thefoundationwillatleastbesettodefeatanysubsequentsection19(g)proceedingfiledinthecircuitcourt.

In defending a section 19(g) pro-ceeding,thefactofpaymentinfullmustbe stressed, as well as the law stating that thecircuitcourtonjudicialreviewdoesnothavethepowertoenterjudgmentorto enforce theCommission’s decision;thus,section2-1303’sjudgmentinterest(whichmust be based on an entry ofjudgment)cannotapply.Acircuitcourtsittingonjudicialreviewhasonlythosepowers conferred by section 19(f),whichdonotincludethepowertoenterjudgment, award interest, or authorizeexecution.Aseparateproceedingundersection19(g)mustbefiled.

Manyemployersareunnecessarilypayingthehigherjudgmentinterestratewhen the section 19(n) rate clearlyapplies. Employers should never findthemselvesinthispredicament.Awardsshould be paid timely and interestshouldbetenderedandexplainedinanaccompanying letter.And in all cases,allconversationsmustbeproperlydocu-mented.Bealertforthisrecenttacticandmakeyourmessageclear—nojudgmentinterestunlessanduntilaCommission’sdecisionisreducedtojudgment.

Stacy E. CrabtreeCaterpillar, Inc., Peoria

Recent Decisions

About the Author

Stacy E. Crabtree is an attorney at Caterpillar Inc., in Peoria, where she focuses on commercial transactions. Ms. Crabtree received her J.D., summa cum laude, from Florida Coastal School of Law and B.A., summa

cum laude, from Bradley University.

In Assaf v. Trinity Medical Center, No. 15-2587, 2016U.S.App. LEXIS8448(7thCir.May6,2016),theCourtofAppealsfortheSeventhCircuitrejectedtheplaintiff’sclaimfordamagesthatwerebasedonlostprofessionalfeesduetotheplaintiff’swife’sbusiness.Theplaintiff,Dr.BassamAssaf,hadbeenemployedbythedefendant,TrinityMedicalCenter,as itsmedicaldirector for theepilepsyclinic untilTrinityMedical terminatedtheplaintiff’semploymentin2009.Aftertheplaintifffiledsuit,thepartiesenteredintoasettlementagreementunderwhichthedoctorwouldbeemployedbyTrinityMedical for at least two years as thedirector of itsNeuroscience Program.Althoughtheagreementwassignedbyboth parties, the employment relation-shipnevermaterializedandtheplaintifffiledaclaimforbreachofthesettlementagreement.Assaf,2016U.S.App.LEXIS8448,at*1-2.

Thedistrictcourtgrantedsummaryjudgmentinfavoroftheplaintiffontheclaimforbreachofthesettlementagree-ment, and the parties moved to trial on theissueofdamages.Id.at*2.Thedoc-torsoughtthelostsalaryforthoseyearshe was to have been employed as direc-torinadditiontolostprofessionalfees.The lost professional fees came fromreferrals for theplaintiff’sEEGvideomonitoring and follow-up of epilepsypatients, which he alleged decreased as aresultofTrinityMedical’sfailureto

rehirehim.Id.at*3.Thedistrictcourtrejectedtheclaimforlostprofessionalfees,holdingthattheplaintifffailedtoprovideanadequateestimateofthelossduringdiscovery.Thecourtthenenteredjudgmentwithouttrial,awardingAssafhis lost salary for the two years hewastohavebeenemployedunder thesettlement agreement and attorneys’fees.Id.at*2.

During the initialappeal fromthatruling,thecourtofappealsreversedthedistrictcourtandheldthattheplaintiff“had presented a computation of hislost professional fees,with supportingevidence,afterdiscoverybutbeforethepreparationofanypretrialorder,andthathethereforeshouldhavebeenallowedtoproceedwith that claim for damages.”Id. The casewas then remanded forascertainmentoftheplaintiff’sdamages.Id.at*3.

Onremand,thepartieswenttoajurytrialontheissueoflostprofessionalfees

Physician Cannot Recover Lost Professional Fees Where They Were Paid to His Practice and Not to Him



andthejuryreturnedaverdictinfavorofTrinityMedical.Specifically,thejurywas asked via a verdict formwhetherthedoctorhadprovenhesustainedtheclaimed damages for lost professionalfees,towhichthejuryanswered,“no.”Id.Thedistrictcourtthenenteredjudg-mentontheverdict.

On appeal, the court of appealsrejected the plaintiff’s arguments andaffirmedtheentryofjudgmentdenyingtheprofessional fees.According to thecourt,thedoctor,asthepartyseekingtorecoverdamages,carriedtheburdenofprovingthathedid,infact,sufferactualdamages.Id.at*4.Thecourtnotedthatits prior opinion had merely given the doctor the opportunity to assert theclaim of lost professional fees basedontheevidencebeforethecourt;ithadnotconsideredtheissueofwhethertheplaintiffactually incurred those losses.Id.Thecourtsuccinctlysummarizedthenatureoftheplaintiff’sclaimasfollows:

Assaf’s claim for the loss ofprofessional fees was basedon the allegation that his prac-tice experienced a decrease in referrals and correspondinglossoffeesasaresultofTrin-ityMedicalCenter’sbreachofcontract.According toAssaf,those professional feesweregeneratedwhen he performedservices, and the breach ofcontract caused a decrease inreferrals and correspondingdecreaseinprofessionalfees.

Id.at*4-5.The problem, according to the

court,wasthatthesubjectprofessionalfeeswere not paid to the plaintiff, butweretobepaidtothemedicalpractice.That medical practice was owned by

theplaintiff’swife,whowasnotapartytothelitigation.Id.at*5.Theplaintiffacknowledged he did not have anyownership in themedical practice duetohisimmigrationstatus.

Moreover, the doctor did not claim that his salary or other compensation was affectedbythedecreaseinprofessionalfees.He received a salarywhichwasunchangedthroughoutthetimeperiodinquestion.Instead,theplaintiffarguedthatitdidnotmattertowhomthefeeswerepayable,“butonlythattheyweregener-

ated by his performance of services.”Thecourtrejectedthisargument,stating“[i]nshort,heprovide[d]noargumenttodifferentiatehimselffromanyemployeeof a business, and assert[ed] no basisallowing such an employee to recoverdamages for lost profits of a businessin which the employee has no owner-ship or legal interest and in which the employeeallege[d]noimpactonhisowncompensation.”Id.at*5-6.Thedistrictcourt’sentryofjudgmentontheverdictwas,therefore,affirmed.

Grievance Report Was Not Exempt Under FOIA Section 7(1)(n)

Despite Prompting Employee Disciplinary Proceedings

In Peoria Journal Star v. City of Peoria,2016ILApp(3d)140838,theIllinoisAppellateCourtThirdDistrictaffirmedacircuitcourtorderthatwouldrequire amunicipality to produce anemployee grievance report under theIllinoisFreedomofInformationAct,5ILCS140/1-140/8.5(FOIA),despitethereportsubsequentlypromptinginternaldisciplinary proceedings. There, theplaintiffs, the Peoria Journal Star andMattBuedel, a crime reporter, filed aFOIA requestwith theCity of Peoria(City)seeking“allspecialreportswrit-ten by SergeantKerrieDavis of thePeoria Police Department in 2013.”Peoria Journal Star,2016ILApp(3d)140838, ¶¶ 1, 3.TheCity respondedwith onewritten report (August 21,2013)butrefusedtoprovideasecondreport (July 12, 2013), asserting thatitwas exempt from disclosure undersections7(1)(d)(i)and(ii),and7(1)(n)

ofFOIA.Id. ¶3. Following theCity’s response, the

plaintiffsaskedtheIllinoisAttorneyGen-eral’sPublicAccessBureautodetermineiftheCity’sdenialcompliedwithFOIA.Uponreview,thePublicAccessBureauconcluded that sections 7(1)(d)(i) and(ii),and7(1)(n)didnotexempttheJuly12report fromdisclosure.Despite thisruling,theCitycontinuedtowithholdthereportfromdisclosure.Id. ¶4.

Theplaintiffs subsequentlyfiled acomplaintagainst theCityseekingde-claratoryandinjunctivereliefintheformofanordercompellingtheCitytoreleasetheJuly12report.Id. ¶5.Inresponsetoamotion to compel, the City described the July12reportas“areportofanemployeegrievanceandservedasthefactualbasiswhich initiated two internal disciplinary casesagainsttwoofficersofthePeoriaPoliceDepartment.” Id.A copyof theJuly12reportwasthendeliveredtothe


Recent Decisions | continued

circuitcourtforanin camerainspection.The circuit court issued an order

in favor of the plaintiffs, finding thattheCity had failed tomeet its burdenofprovingthereportwasexemptfromdisclosure.That order, however,wassoonvacatedontheCity’smotiontosetaside.Id. ¶6.

Inasubsequentbrief,theCityarguedtheJuly12reportwasexemptbecauseitwas“(1)created in thecourseofanadministrativeenforcementproceedingandwouldhaveinterferedwithapendinglaw enforcement proceeding, and (2)related to apublicbody’s adjudicationofemployeegrievancesordisciplinarycases.”Id.¶7.Thebriefwassupportedby the affidavit of a police lieutenantwhoconfirmedthatformaldisciplinaryadjudications were conducted basedon the report. Id.Theplaintiffsfiled amotionforsummaryjudgmentaskingthecourtfindthattheCityfailedtoprovdethereportwasexemptundersection7(1)(n).Notably, section 7(1)(n) exemptsfrom FOIA’s inspection and copyingrequirements “[r]ecords relating to apublicbody’sadjudicationofemployeegrievancesordisciplinarycases . . . .”5 ILCS140/7(1)(n).The circuit courtgranted theplaintiff’smotion for sum-maryjudgmentonthegroundstheCityfailedtomeetitsburdenofshowingtheexemption applied by clear and convinc-ingevidence.Peoria Journal Star, 2016 ILApp(3d)140838,¶8.

On appeal, the court noted thatFOIA’sexemptionsare tobe readnar-rowly and apublic bodyhas a burdenof proving by clear and convincingevidence that a record fallswithin aclaimedexemption.ld.¶¶11-12(citing5ILCS140/1.2).WithrespecttotheCity’sclaimed exemption for adjudication ofemployeegrievances,theappellatecourtobservedthatitisgenerallyunderstood

that“adjudication”means“aformalizedlegalprocess thatresults inafinalandenforceable decision.” Id. ¶ 13. TheJuly12reportinthiscasedocumenteda grievance.Agrievance, “initiates aninvestigative process; any disciplinaryadjudication thatmay take place as aresultoftheinvestigationcomeslater.”Id. ¶ 14.Consequently, the appellatecourtheldthatagrievancedoesnotfall

withintheexemptionundersection7(1)(n)evenifitlaterresultsinadisciplin-ary proceeding being instituted. “[D]isciplinaryproceedings ‘areadifferentmatterentirely.’”Id.¶14.Therefore,theCityfailedtoprovebyclearandconvinc-ingevidencethattheJuly12reportwasexempt fromproductionunder section(7)(1)(n)ofFOIA,andtheappellatecourtaffirmedthecircuitcourt’sruling.

In Libolt v. Wiener Circle, Inc., 2016ILApp(1st)150118,theplaintiff,LeahLibolt,filedapersonalinjurysuitagainstarestaurantknownforitsrowdyatmosphereanduniqueinteractionwithits customers, alleging that one of itscustomers became belligerent andknockedhertotheground.Notably,thedefendant restaurant,Wiener Circle,featuresstaffwhoharassandbanterwiththecustomers.Accordingtotestimony,WienerCirclewas“aplaceyouhavetogoinChicagotoexperienceit.***[Y]ou’re going to have thewait staffyellat you, curse at you, andmake funofyouandbelittleyou,andit’spartoftheact.It’sjusthowtherestaurantworks.”Libolt,2016ILApp(1st)150118,¶¶49.

TheplaintiffhadbeenvisitingChi-cagoand,onthedayoftheaccident,haddinneranddrinks,andwent toWienerCirclewithfriendsaroundtwoo’clockinthemorning.Id. ¶3.Therestaurantwasbusy.Whentheplaintiffandherfriendsnearedthefrontoftheline,shenoticedanunidentifiedmangoinginandoutoftherestaurantandthewaitstaffinteracting

Restaurant’s Banter with Intoxicated Customers Imposed Heightened

Duty of Care

withhiminanaggressiveand“notgood-natured”way.Id. ¶4.One witness said themanwasyellingina“rudemanner,notjustafunnymanner,”butyetsaid,it“waswhatyou’dtypicallyseethere[.]”Id.¶14.Theplaintiffsaidshesawtheemployees tell the man to leave and threaten him by waiving a large spoon at him.Shefurthersawtheinteractionwasescalating.Id.at*4.Whiletheplaintiffwas talking to a friend, the unknownmanranintoherandknockedhertotheground,breakingherarm.

Theplaintiffclaimedtherestaurantwas negligent when it permitted the continuedpresenceofthe“quarrelsomeman,” failed to control theman, andencourageditsemployeestoantagonize,aggravate, and provoke patrons. Id. ¶ 19. The plaintiff also claimed the restaurant negligently hired peoplewithoutadequate training todeterminewhenapatronwastoodisorderly.Id. The restaurantfiled amotion for summaryjudgment,whichwasgranted.Id. ¶20.Theplaintiffsubsequentlyappealed.

Onappeal, theplaintiffargued therestaurant created a “hostile, volatile


thattherewerefourorfivewaitstaff,andoneofthemyelledattheman and then “pulled outpepper spray, and they were saying that if he didn’t calmdown, they were going to spray him and then they were going to kickhimout.”

Id.¶31.Noone threatened tocall thepoliceatthetimeofthealtercationandtherestauranthadnosecurity.Id.

The appellate court ultimatelyconcluded that summary judgmentwas improperly grantedfinding that aheightened duty did in fact exist.Theappellate court held the injury was“reasonablyforeseeable ina restaurantwhere 75%of patrons are intoxicatedduring late night hours andwhere thegimmickthatbringsthesepatronsinistheeffortmadetoengagewithcustomersin a banter which, late at night, appar-entlydriftsintoinsultsandvulgarity,andwhererestaurantemployees,potentiallyaspartoftheschtick,brandishwiregrillbrushesatpatronsandthreatenpatronswith pepper spray.” Id. ¶ 32. It was

“reasonably likely that a patronmightgetinjuredinsuchanenvironment.”Id.Theappellatecourtnotedthattoguardagainst orwarn of these injuries, theburdenontherestaurantwasminimalbe-cause“therestaurantcouldsimplywarnagainst the dangers by posting signage, couldproperlytrainitsemployeesnottoantagonizecustomersbeyondacertainpoint,orcouldhiresecuritytoworkthelatenighthours.”Id.

Notably, the appellate courtmadeit clear that it was not holding that all restaurants have a heightened duty topatrons. “However,where a businessinvitorsuchasWienerCirclehereinten-tionallycreatesandknowinglymaintainsa volatile environment in which the likelihood of injury to its invitees isunreasonably high, it has a duty toprotectitsinviteesortowarnthemofthedangers.”Id.¶33.Theappellatecourtalsoreversedontheissueofproximatecause,findingthattheissuewasoneforthejury.

environment,”andasabusinessinvitor,ithad“aheightenedduty toprotectorwarncustomersofthepotentialdangersthatmay arise from such volatility.”Id. ¶ 23.The relationship of businessinvitor and invitee can give rise to an affirmativedutyoftheinvitortoaidorprotectanotheragainstunreasonableriskofharm,includingharmcausedbyathirdparty’sinnocent,negligent,intentionalorcriminalmisconduct.Id. ¶28.

Inconsidering theproprietyof thesummary judgmentand thedutyowedbythedefendant,thecourttooknoteofseveralfacts:

[T]hatWienerCircle’sbusinessis centeredarounda “schtick”in which employees verbally banterwith customers. In thelate night hours, however, theschtickappearstobecomemoreaggressive.[Oneemployee]tes-tifiedthatapproximately75%ofWienerCirclepatronsinthelatenighthoursareintoxicated.Thevideodocumentaryintherecordreflects a high level of ten-sionandvulgaritybetweenthecounterstaffandtherestaurantpatrons, originating frombothsidesofthecounter.Accordingtoplaintiff,counterstaffwaveda large spoon at the man who fellintoher.Accordingto[onewitness], counter staffwavedalargemetalgrillbrushattheman.Andaccordingto[anotherwitness],hesawoneofthewaitstaff threaten the man withpepperspray.Specifically,[thatwitness]noticedthemanhavinga“fun”backandforthwiththewaitstaff,but that the interac-tionwas getting “louder andmore aggressive.”He testified

The appellate court held the injury was “reasonably

foreseeable in a restaurant where 75% of patrons

are intoxicated during late night hours and where the

gimmick that brings these patrons in is the effort made

to engage with customers in a banter which, late at

night, apparently drifts into insults and vulgarity, and

where restaurant employees, potentially as part of

the schtick, brandish wire grill brushes at patrons

and threaten patrons with pepper spray.”


Evidence and Practice TipsBrad W. KellerHeyl, Royster, Voelker & Allen, P.C., Peoria

Underthewell-knownrulecreatedin Kotecki v. Cyclops Welding Corp., 146 Ill. 2d155 (1991), the liability ofan employer sued for contribution ina civil suit brought by an employee isgenerallycappedattheamountpaidbytheemployerforworkers’compensationbenefitsfortheinjuredemployee.Likemanyother issues involving contribu-tion, the Kotecki doctrine, althoughwell-established,isthesubjectofmuchdebateandseveralappellatedecisions.

AnewcasefromtheIllinoisAppel-lateCourtThirdDistrict,Burhmester v. Steve Spiess Construction, Inc., 2016 ILApp (3d) 140794, is just the latestexample. InBurhmester, the court ad-dressed whether the Kotecki defensemustbepledandprovenat trial as anaffirmative defense orwhether it canmerely be presented in a posttrial motion followingaverdict.

Background and Decision in Trial Court

Nacin Burhmester was severelyinjuredwhileworking on a construc-tion job site for his employer,Keefe.Keefewas the electrical subcontractorat the site and Spiess was the general contractor.Burhmesterfiledtwoactionsasaresultoftheaccident:(1)aworkers’compensationclaimagainstKeefe;and(2) anegligence action againstSpiess.Burhmester,2016ILApp(3d)140794, ¶ 3. In the negligence action, Spiessfiledathird-partyclaimforcontribution

About the Author

Brad W. Keller is an as-sociate in the Peoria office of Heyl, Royster, Voelker & Allen, P.C. He practices primarily in the areas of business and commercial litigation and tort litiga-tion. He received his B.A. in Political Science from the University of Illinois

in 2007 and his J.D. magna cum laude from University of Illinois College of Law in 2010.

Burhmester v. Steve Spiess Construction, Inc., When Must the

Kotecki Defense be Presented? against the employer, Keefe. Keefeanswered the complaint and filed anaffirmative defense, asserting that anycontributionwould be limited to theamount paid or payable in workers’compensation benefits, pursuant toKotecki.Id.

At trial in the case against Spiess, Burhmesterwasawardedaverdictintheamountof$534,608.82.Afterjudgmentwas entered against Spiess, Spiess’sclaim againstKeefewas tried. Spiessmoved orally for a directed verdictagainstKeefeat thecloseofevidence,arguing thatKeefe had not presentedevidence at trial to establish its Kotecki claimasanaffirmativedefense.Id. ¶4.Thetrialcourtdeniedthemotion,findingthat Kotecki automatically applies incontribution claims anddoes not needto be raised as an affirmative defenseorprovenattrial.Id.Thecourtfurtherfound thatKotecki applies as a matter oflaw,findingittobemoreofasetoffthananaffirmativedefense.ThejurythenfoundBurhmester 30 percent at fault,Spiess20percent,atfaultandKeefe50percentatfault.Id. ¶5.Thetrialcourtentereda contribution judgment in theamountof$374,720.58.Id.

Following the verdict, the courtdeniedSpiess’motionrenewingitsmo-tionfordirectedverdict.Id.Keefefiledaposttrialmotion,seekingtowaiveitsworkers’compensationlienanddismissSpiess’contributionaction. Insupport,KeefeattachedanaffidavitestablishingthatBurhmesterhadreceived$95,487.23

in workers’ compensation benefits.Spiessobjected,arguingthatitsmotionforadirectedverdictshouldhavebeengranted,whichwould preventKeefefromwaiving the lien posttrial. Id. ¶ 6. Spiess argued that an employer’slien could only bewaived posttrial ifits Kotecki affirmativedefenseand theamounthadbeenprovenattrial,orwasnotindispute.Id.

ThetrialcourtgrantedKeefe’smo-tiontodismissandvacatedthejudgmentagainstKeefe. Id. ¶ 7.The court thengrantedSpiessasetoffof$95,487.23,theamountofKeefe’sworkers’compensa-tion lien. Id. Spiess appealed the trial court’sruling,leadingtothisdecision.

Appellate Decision

In its decision, the Third District ad-dressedtwoissues:(1)whetherKotecki is an affirmative defense thatmust bepledoraposttrialclaimforsetoff;and(2)whetheranaffidavitsettingouttheworkers’compensationbenefitspaidisenoughtoprovetheKoteckiclaim.

The court first addressedwhetheran employer relying on the Koteckirulemustpleadandproveitasanaffirmativedefenseattrial,orwhethertheemployer



can simplymake a posttrial claim forsetoff.Id. ¶11.Inrulingontheposttrialmotions,thetrialcourthadreliedonKim v. Alvey, Inc.,322Ill.App.3d657(1stDist.2001),whichheldthatanemployerwas not required to raise theKotecki setofforworkers’compensationlienasan affirmative defense, or evenbeforetrial.TheKim court had relied uponthe Illinois SupremeCourt’s decisionin LaFever v. Kemlite Co., 185 Ill. 2d380(1998),explainingthattheLaFever decision clearly allowed an employer to raiseitslieninaposttrialmotion.SpiessarguedthattheKim case was an incorrect application of theLaFever case that wasinconflictwithseveralothercases.Burhmester,2016ILApp(3d)140794, ¶12.Spiessarguedthattherighttowaivethe lien following trial is separate anddistinct from the requirement to provethelienattrial.Id.Thus,itarguedthatLaFeveratmostallowedforanemployerwhohad actually proven theworkers’compensationsetoffattrialtowaivethatlienpost-judgment.Id.

The LaFever decision was central to the Burhmestercourt’sanalysis.InLaFe-ver,theemployerofaninjuredworkerthatwas sued in a third party actionseeking contributionwaiteduntil aftera verdictwas entered and then soughttoimposeitssetoffrightunderKotecki.

Id. ¶ 14.The trial court dismissed thecontributionactiononcetheKotecki de-fensewasraised,buttheappellatecourtreversed and held that that the employer could notwait until after a verdict toassert Kotecki.Id.TheIllinoisSupremeCourtthenreversedtheappellatecourt,holdingthat“regardlessofwhen[theem-ployer]waiveditslien,itscontributionliability was always capped at the same amount.”Id.(citingLaFever,185Ill.2dat403-04).Thecourtfurtherexplainedthat “[w]hether [employer]waived itslienbeforeoraftertheverdict,Kotecki and its progeny limited themaximumcontribution liability for [employer] totheamountpaidby[employer]inwork-ers’ compensation.”Buhrmester, 2016 ILApp(3d)141794,¶4(citingLaFever, 185Ill.2dat404).

The Burhmester court found thediscussion in LaFever instructive.Whileitadmittedthatthespecificissuein LaFever was not whether a Kotecki setoffhad tobepledasanaffirmativedefenseinordertoblockacontributionaction,itfeltthatitwasimplicitunderthe LaFever decision that Kotecki is not anaffirmativedefensetoacontributionactionsincethecourtheldthatKotecki canberaisedbeforeoraftertheverdict.Burhmester,2016ILApp(3d)140794,¶14.

Spiess raised several appellate decisions in support of its argumentthat a Koteckisetoffmustbepleadandproven as an affirmative defense.Thecourt rejectedmost of these as havingeitherbeendecidedbeforetheLaFever decisionor asnot truly supporting theposition asserted. Id. ¶ 15.The courtfocusedheavilyonSpiess’ relianceonDoyle v. Rhodes, 101 Ill. 2d1 (1984),finding that a decision cited thereinactuallysupportedthetrialcourt’sruling.Spiesshadspecificallycitedthefollow-ing statement made by the Doyle court:

“TheWorkers’CompensationAct provides employers with a defenseagainstanyactionthatmay be asserted against them in tort,butthatdefenseisanaffir-mative one whose elements–the employment relationship and thenexusbetweentheemploy-ment and the injury–must beestablished by the employer, andwhichiswaivedifnotas-sertedbyhiminthetrialcourt.”

Buhrmester,2016ILApp(3d)140794,¶ 16 (quotingDoyle, 101 Ill. 2d at 10(citingRobertson v. Travelers Insurance Co.,95Ill.2d441,451(1983))). The Burhmester court explained thatwhilethissectionoftheDoyle decision referredtoanaffirmativedefensethatiswaivedifnotasserted,itdidnotaddresswhetherthedefensemustbeplead.Id. ¶17.Itexplainedfurtherthatthisissuehad been addressed in Robertson, in whichthecourtstatedasfollows:

“Robertson argues that inas-much as the instant casewastriedbeforeajuryitwasincum-

Spiess raised several appellate decisions in support

of its argument that a Kotecki setoff must be plead

and proven as an affirmative defense. The court

rejected most of these as having either been

decided before the LaFever decision or as

not truly supporting the position asserted.


Evidence and Practice Tips | continued

bent uponTravelers to pleadandprove the statutorybar ofthe [Workers’]CompensationAct [citation] and its failureto do so could not be curedbyraisingtheissueinthetrialcourt in a posttrialmotion asTravelers did.Although wedonotdisputethegeneralrulethat a defense resting on theexclusivityprovisionoftheActisaffirmative innature,wedonotbelieveTravelers’omissionwasfatalinthiscase.Thiscourthasheldthefailuretopleadandprove such a defense decisiveonlywheretherewasafactualquestionastowhethertheinjuryallegedaroseoutofandinthecourse of thework, so that averdictforthedefendantdespitefailure to prove coveragewasan impermissible shifting ofthe burdenof proof. [citation]***The question ofwhethertheWorkers’ CompensationAct applied to the plaintiff’sinjurieswasthereforepurelyalegalone,andnopurposewouldhavebeenservedbyrequiringits pleadingbefore the jury aslong as it came to the attention ofthetrialjudgeandRobertsonwasgivenachancetorespond.[citation]Thetrialcourthadthediscretiontoentertaintheissueinaposttrialmotion***.”

Buhrmester,2016ILApp(3d)140794,¶ 17 (quotingRobertson, 95 Ill. 2d at451-52).

The Burhmester court found theholding in Robertson that a defenseundertheActdoesnotneedtobepleadbefore thematter is triedbeforea juryto be controlling. Id. ¶ 18.The court

explainedthatjustasinRobertson, the fact that Burhmesterwas an injuredemployeereceivingcompensationundertheWorkers’ CompensationActwasnot in dispute. Id. Because therewasno dispute, therewas no need for theissuetobeplacedbeforethejuryasanaffirmativedefenseandinsteadcouldbeaddressedbymeansofaposttrialmotion.Id. Insupportofitsdecision,thecourtagain cited the LaFever holding that Kotecki can be raised before or aftertheverdict.Id. Thus,thecourtrejectedSpiess’argumentthattheKotecki claim needed to be plead and proven at trial as anaffirmativedefense.

The second issue considered onappealwaswhetherKeefehadproperlyproventheamountoftheKotecki setoff.Id. ¶ 20.Spiesshadarguedat the trialcourtlevel,andnowarguedattheappel-latecourt,thattheaffidavitrelieduponbyKeefewas insufficient toprove theamountofbenefitspaidtoBurhmester.Onthatbasis,SpiessarguedthatthatitwasentitledtoacontributionforthefullamountofKeefe’sproratashareofthejudgment. Id.

At trial, Keefe had presented anaffidavitfromtheadjusterinchargeofadministeringBurhmester’sworkers’compensation claim. Id. ¶ 22. Theaffidavit included evidence includingthe settlement contract and a “payoutscreen”exhibitshowingspecificdetailsoftheamountspaidincompensationandmedicalbenefits.Id.

On appeal, the court found thattheaffidavitpresentedwassufficienttoestablish the amount of compensationpaidbyKeefe,andthusallowedfortheapplicationofKotecki.Id. Theaffidavithadprovided evidence of the amountspaid and had further shown that theaffiant had personal knowledge of thecontentsoftheaffidavitandcouldhavecompetently testified to those facts attrial.Id.

Conclusion

Any attorney who represents em-ployers sued for contribution in third-partyactionsstemmingfromtheinjuryofanemployeeshouldreadtheBurhmester case.Itoffersadiscussionandanalysisof numerous appellate cases address-ing Kotecki issues.While the court inBurhmesterultimatelyholdsthatKotecki did not have to be pled and proven at trialasanaffirmativedefense,andcouldinstead be presented in a posttrial motion, itmustbenotedthattheholdingisseem-ingly limited to cases in which there is no disputethattheunderlyingplaintiffwasaninjuredemployeereceivingworkers’compensation benefits. Based on thedecisions in Burhmester and Robertson, ifthereisanydisputeastowhethertheinjuryaroseoutofandinthescopeoftheinjuredemployee’swork,theattorneyfortheemployeeshouldbepreparedtopleadand prove the Kotecki defenseattrial.

The Burhmester court found the holding in Robertson

that a defense under the Act does not need to be plead

before the matter is tried before a jury to be controlling.



James K. BorciaTressler LLP, Chicago

Commercial Law

James K. Borcia is a part-ner with the Chicago firm of Tressler LLP, and is active in the firm’s litigation prac-tice with an emphasis on commercial and complex litigation. He was admitted to the bar in 1989 after he

received his J.D. from Chicago-Kent College of Law. Mr. Borcia is a member of the Chicago and Illinois State Bar Associations, as well as the IDC and DRI.

About the Author

InclassactionsunderFederalRuleof Civil Procedure Rule 23, as wellas in collective actions under theFairLaborStandardsAct(FLSA),individualplaintiffsseekreliefonbehalfofthem-selves and similarly situated parties.WhenaRule23classactioniscertified,prospectivemembersarepresumedtobepartofthesuitunlesstheyopt-out.Ontheotherhand,whenaFLSAcollectiveactioniscertified,prospectivemembersmustaffirmativelyopt-intoparticipate.In both class and collective actions, the

a “trial by formula” approachwhere arandomsampleofclaimswouldbetriedandtheresultsofthosetrialswouldbeappliedacrosstheentireclass.Id. at367.

In a recent decision closely watched byclassactionplaintiffsanddefendants,Tyson Foods v. Bouaphakeo,136S.Ct.1036(2016),aclassofpork-processingemployees claimed they were not paid overtimefortimespentputtingonpro-tectivegearatthebeginningandendoftheirshifts.Tyson Foods v. Bouaphakeo, 136 S. Ct. 1036, 1041 (2016). The

principallyof twostudies. Id. at1043.One,conductedbyDr.KennethMericle,used744“videotapedobservations” toconcludethatemployeesinthe“cutandretrimdepartments”averaged18minutesadayandthoseinthe“killdepartment”averaged 21minutes per day. Id. at 1043. The second study, conductedbyDr.LieslFox, anotherofplaintiffs’experts, used each employee’s timerecords—combinedwithDr.Mericle’stime estimates—to determinewhichemployees were entitled to overtime paybasedontheadditionofthedonningand doffing time to theirworkweeks.Id. at1043-1044.Thestudyfoundthat212 class members were not entitled to recover, and that the remaining class members were entitled to an aggregate award of $6.7million. Id. The juryawarded $2.9million and returned aspecialverdictfindingthatdonninganddoffingtimeatthebeginningandendoftheworkdaywascompensable,butthatdonning and doffing formeal breakswasnot.Id.

Tyson moved to set aside the verdict, arguing that the class shouldnot havebeen certified because the individualvariationsindonninganddoffingtimes—reflected in the second study—didnot

Supreme Court Addresses Representative Statistics in Class Actions

When a Rule 23 class action is certified, prospective

members are presumed to be part of the suit unless

they opt-out. On the other hand, when a FLSA

collective action is certified, prospective members

must affirmatively opt-in to participate.

plaintiffsmust show that prospectivemembersaresimilarlysituatedandthatthe claims present common questionsof law or fact. InWal-Mart v. Dukes, 564U.S.338(2013),theUnitedStatesSupremeCourtrejectedaproposedclassof1.6millionemployeesalleginggenderdiscrimination because each claimturned on “the reason for a particularemploymentdecision”and,therefore,theclaimslackedtherequiredcommonalityforclasstreatment.Wal-Mart, 564U.S.at352.TheSupremeCourtalsorejected

employeeswere in different positionsandworedifferentprotectivegear,whichtookvaryingtimestoputonandremove.Basedonthesedifferences,theemployerargued class and collective treatmentwas inappropriate because theywerenot similarly situated anddeterminingwhether and to what extent they were entitledtodamageswastoospeculative.

BecauseTysondidnotkeeprecordsofeachemployee’sdonninganddoffingtime, the plaintiffs relied on “repre-sentative evidence,”which consisted


Commercial Law | continued

satisfyRule23(b)(3)’srequirementthatquestionsoflaworfactcommontoclassmemberspredominateoveranyquestionsaffectingonlyindividualclassmembers.BoththedistrictcourtandthecourtofappealsrejectedTyson’sarguments.

TheUnitedStates SupremeCourtruled that the employees could proveliability and damages by relying on “representative evidence” in the formof statistical averages prepared by anexpert’svideotapedobservationsofover700employeesputtingonandremovingprotectivegear.Tyson Foods, Inc., 136S.Ct.at1046.TheSupremeCourtdeclinedto adopt “broad and categorical rules”governing the use of representativeevidence in class and collective actions, butratherstatedthatthis“willdependonthefactsandcircumstances.”Id. at1049.Thefactsandcircumstancesemphasizedin Tysonweretheemployer’sfailuretocomplywith its statutoryduty to keepproperrecords,thedifficultyinprovingtheir claims without representativeevidence,the“remedialpurpose”oftheFLSA,andtheemployer’sfailuretochal-lenge thevalidityof the representativeevidencethroughaDaubert hearing or rebuttalexperttestimony.

ThesecondissueaddressedinTyson was whether class certification wasimproperbecausetherewasnomecha-nismforensuringthatonlyinjuredclassmemberswould receivecompensation.Id. at1049.Tysonarguedthatthelowerdamages amountmeant that the juryhad rejected theMericle study’s timeestimates,andthat it thereforewasnotpossibletoknowwhichclassmemberswereentitledtodamages.Id. Awarding damages to eachclassmemberwouldmean that some individuals foundby the jury not to be injuredwouldnonethelessreceivecompensation.TheSupremeCourtstatedthat“thequestion

whetheruninjuredclassmembersmayrecoverisoneofgreatimportance,”butconcludeditwasnotproperlybeforetheCourtinthiscase“becausethedamagesawardhasnotyetbeendisbursed,nordoes the record indicate how it will be disbursed.”Id. at1050.TheCourtheldthatTyson“mayraiseachallengetotheproposedmethod of allocationwhenthe case returns to the district court.”Id. However,theCourtalsonotedthat“this problem appears to be one of[Tyson’s]ownmaking,”becauseTysonhad rejected the plaintiffs’ suggestionto bifurcate the liability and damagesphasesofthetrial,whichwasmade“fortheprecisereasonthatitmaybedifficultto remove uninjured individuals fromthe class after an award is rendered.”Tyson Foods, Inc., 136S.Ct.at1050.Whether any error should be deemedinvitedbyTysonwasanissuelefttothedistrictcourt.Id.

This is a significant decision.TheSupremeCourtsupplementedWal-Mart bydefiningingreaterdetailthestandardsthatmust be satisfiedwhen plaintiffsseek to rely on statistical evidence totransform individualized issues intocommononestosatisfyRule23(b)(3)’spredominancerequirement.Basedonthelackofacategoricalrulegoverningtheuseofrepresentativeevidence,classand

collectiveactionplaintiffswilllitigatetheissuesintheinthelowercourtsandtestthelimitsofTysoninavarietyofclaims.Tyson Foodswillalsomakeiteasierforclass and collective actionplaintiffs tojoinandtransformindividualissuesintocommon ones through representativeevidence.Thedecisionmayalsomakeiteasierfortrialcourtstodeferresolvingdispositive issues traditionally resolvedattheclasscertificationstage.Afterthisdecision, class and collective action defendantsshouldcloselyscrutinizeandchallenge thevalidityof expert studiesand representative evidence throughpre-trial Daubert hearings or rebuttalexperts.TheSupremeCourt’semphasison the “great importance”of the issueofuninjuredclassmembersmeansthatdefendantsshouldcontinuetofocusonthisissueinlitigatingclassactions.Totheextentthataclassisdefinedbroadly—andthe liability determinations in the merits phaseofthecasearenotcertaintoweedoutalluninjuredparties—thereisastrongargument that the class certificationdecisioncannotstand.Finally,theCourt’sreference to invited errormeans thatdefendantsshouldtakecaretopropose,oratleastnotoppose,proceduresthatwouldensurethatuninjuredclassmembersareidentifiedandexcludedfromanyeventualdamagesaward.

This is a significant decision. The Supreme Court

supplemented Wal-Mart by defining in greater detail

the standards that must be satisfied when plaintiffs

seek to rely on statistical evidence to transform

individualized issues into common ones to satisfy

Rule 23(b)(3)’s predominance requirement.



About the Author

Legislative UpdateR. Mark CosiminiRusin & Maciorowski, Ltd., Champaign

The Illinois General Assembly adjourned the SpringSessionwithoutabudgetagreementforthesecondcon-secutiveyear.TheMay31stadjournmentdate is especially significant becauselegislationwithanimmediateeffectivedate, like thebudget, requiresa3/5thsfavorablevote.Thus, thebarhasbeenraised even higher for an agreementfollowingtheinabilityofthelegislaturetoagreeonabudgetbyMay31st.

Thebudgetisthemajorunresolvedissue. It has caused acrimonybetweentheDemocrats andRepublicans in thelegislature,DemocraticandRepublicanlegislative leaders, and RepublicanGovernorBruceRauner.Thetensionisespecially apparent between Governor Rauner andMichael Madigan, theDemocraticSpeakeroftheIllinoisHouseofRepresentatives.

The legislaturemay schedule spo-radicmeetings in June to attempt topiece together a budget thatwould beeffective July 1, the beginning of the2017 fiscal year.All pundits seem toagree,however,thatitishighlyunlikelythat any agreement will be reached, and thatitismuchmorelikelythatthebudgetissueswill remain unresolved throughtheNovemberelection.TheDemocratsand theRepublicans both believe thatthey have the better argument aboutthefailuretoreachanagreementonthebudget.Thelegislature’sinactivitywillbeamajorissuethroughoutthecampaigntoNovember.

FromtheperspectiveoftheIllinoisAssociation ofDefenseTrialCounselandtheciviljusticesystem,theinabilityofthelegislaturetoreachabudgetagree-mentisimportant.SpeakerMadiganandthe Democratic legislators are trying

R. Mark Cosimini is a partner in Rusin & Maciorowski, Ltd.’s Workers’ Compensation De-partment. He has been with the firm since 1997 and is the managing partner in the firm’s Champaign office. Mr. Cosimini is currently serving

as the co-chair of the Workers’ Compensation Committee for the IDC and has served on the Workers’ Compensation Section Council for the ISBA. He has lectured at legal seminars and he frequently speaks with employers on issues relating to Workers’ Compensation matters.

topass thebudgeton theirown.Theirproposed budget will include somespendingreductionsbutwillalsoincludesubstantial tax increases. GovernorRauner has indicated that hemight beabletogoalongwithtaxincreasesiftheagreementalsoincludesitemsfromhis“turnaroundagenda”thatheclaimswillputIllinoisonthepathtowardrecoverybyassistingbusinessesinIllinois.Theseturnaroundagendaitemsincludeseveralissues thatwill affect the civil justicesystem.

GovernorRaunerhasalwaysfocusedonimprovingthebusinessclimateinIl-linois,includingworkers’compensationreform.Many issues have been raisedbytheGovernorandRepublicanleadersthattheyclaimwouldimprovethebusi-ness climate and help retain and attract businesstoIllinois.Mostoftheseissues,however,arenon-startersforDemocrats.Legislatorsfrombothpartiesandfromboth theHouseofRepresentativesandthe Senate have created a “workinggroup”withinterestedpartiestodiscussapotentialagreementonworkers’com-pensationissues,which,inconjunctionwith other items, may provide a bridge totheapprovalofabudgetagreement.

GovernorRauner has also specifi-callyindicatedthattherearetortissuesincludedinhis“turnaroundagenda”thathewantsthelegislaturetoconsider.Innoparticularorder,theseitemsinclude,venue, limiting recovery ofmedicaldamages to the amounts paid not theamounts billed, and joint and severalliabilityissues,includingwhichtortfea-sors are placed on the verdict formandwhether the jury is told about theeffectof theirpercentageoffindingoffaultofadefendantonthedefendant’s

jointandseveralliability.TheIDChasspecificallyadvancedHouseBill4426,which addresses these joint and several liabilityissues,throughthesponsorshipof Representative Ron Sandack andSenateBill2310throughthesponsorshipof SenateMinority Leader ChristineRadogno.The IDC hasworkedwithGovernorRauner’sofficeandmetwithhimduringtheSpringSessiontostressthe significance of these issues to theIllinois civil justice system.The IDCwillcontinuetoremaininvolvedwiththebusinesscommunityand the insuranceindustryinworkingwiththelegislaturetoaddresstheseissues.

Someof the issues thathavebeenraised, which the IDC Legislative Com-mitteehasbeeninvolvedinduringtheSpringSession,includeeffortstoamendHouseBill6083 to limit theextensionof the statute of limitations in certainwrongfuldeathcases.Asintroduced,thisbillextendedthestatutetoadiscoveryrule in allwrongful death cases.WiththeeffortsoftheIDCandothers,ithasbeen amended and sent to the Governor toapplytoonlyspecifictypesofcasesandonly to the individualwrongdoersinvolved and not to any third parties who


Legislative Update | continued

maypotentiallyalsobeliableintort.Wewere also involved in discus-

sionswith the insurance industrywith

The IDC has worked with Governor Rauner’s

office and met with him during the Spring Session to stress the significance of these issues to the Illinois civil justice system.

reference to SenateBill 2801 dealingwith Peppersconflictsandtheneedforindependentcounsel.Thisbillwasheldbythesponsorforfurtherdiscussion.Theotherissuesthatwehaveworkedonin-cludelegislationaddressingthenumberofjurorsandjurorfeesandthechangesthattookeffectin2015.Thesebillsarecurrentlyonholdbecausethe2015lawhas been declared unconstitutional bytheCircuitCourt ofCookCounty andhasbeentakenunderadvisementbytheIllinoisSupremeCourt.Dependinguponthecourt’sdecision,moreactionmaybeattemptedinthelegislature.Wehavealsobeen involved in legislation that has not passedinvolvingconfidentialityorders,therepealoftheMedicalStudiesAct,andtheresurrectionofthePublicDutyRule,whichwasrecentlystrickeninthecourts.

IthasbeenabusyspringfortheLeg-islativeCommitteeandwewillcontinuetoworkwiththeGovernor,legislators,business and insurance leaders, andother interested groups, to ensure thattheIllinoisciviljusticesystemisfairtoalllitigants.

Ryan M. Frierott, Kevin P. Lolli and Stephanie TothGoldberg Segalla LLP, Chicago

About the Authors

Product Liability


Product liability cases involvingmultiple defendants require special at-tentionwhenonlyoneofthedefendantsisresponsiblefortheinjuryordamagesalleged.InWeddle v. Smith & Nephew, Inc.,No.14C09549,2016U.S.Dist.LEXIS48512(N.D.Ill.Apr.11,2016),theDistrictCourt,NorthernDistrictofIllinoisillustratedhowsuchcasesmustbeplead.

In Weddle, the plaintiffunderwentanklesurgeryaftersufferingafracture.Weddle, 2016U.S.Dist.LEXIS48512, at*2-3.Thesurgeryrequiredtheinser-tionofamedicaldevicemanufacturedbydefendantSmith&Nephew.Id.*3.The device was inserted with nails and cement manufactured by defendantHowmedicaOsteonics,andwithscrewsmanufacturedbydefendantDePuy.Id. at *3-4.Approximatelysixmonthsaftertheanklesurgery,theplaintiffexperiencedpaindue to the failureofoneormoreof thecomponents inherankle,whichrequiredhertoundergofurthersurgeries.Id.at*5.

The plaintiff filed suit assertingclaims of negligence, strict productliability, and breach of express andimplied warranties against the three manufacturersclaimingthat“‘theTRI-GENHindfoot FusionNailand/or a HowmedicaComponentand/oraDePuyComponent’” failed and caused herinjuries.Id.at*5-6,8(emphasisaddedin the court’s quotation). Specifically,plaintiff claimed that the defendants“negligentlydesignedandmanufactured

Multiple Defendants in Product Liability Cases: Pleading a Sufficient Claim

Ryan M. Frierott is a part-ner in Goldberg Segalla LLP’s Chicago office. He focuses his litigation prac-tice in the fields of products liability, toxic torts, complex insurance coverage, and professional liability. He has represented clients in state

and federal courts throughout the United States, and has extensive experience defending cases involving fires, product defect, expert witness challenges, and toxic tort exposure.

Kevin P. Lol l i i s an associate in Goldberg Segalla LLP’s Chicago office. His practice focuses on product liability and gen-eral liability defense. His experience also includes insurance coverage and construction negligence cases. Mr. Lolli has de-

fended product liability cases in state and federal courts in Illinois.

theirrespectiveproductsandnegligentlymisrepresentedmaterialfactsabouttheirproducts’safety,”were“strictlyliablefor

Stephanie Toth is a law clerk at Goldberg Segalla LLP’s Chicago office. She received a B.A. in Medical Humanities and Chemistry from Baylor University, and will receive her J.D. degree from Loyola University

Chicago School of Law. In addition to clerking at Goldberg Segalla, Ms. Toth is a Health Law Fellow and staff writer on the Annals of Health Law Journal, and has externed at Baxter Inter-national, the Rehabilitation Institute of Chicago, and the Circuit Court of Cook County’s Law Division.



defectivelydesigningormanufacturingtheirproductsandforinadequatelywarn-ingabouttheirproducts’dangerousness,”and “breached expresswarranties andimpliedwarranties ofmerchantabilityandfitness.”Id.

All threeof thedefendantsmovedtodismissthecomplaintonthegroundsthatitfailedtoidentifypreciselywhichcomponent failed and thus, whichdefendantwas responsible for causingplaintiff’s alleged injuries. Id. at *7-8. In support, themanufacturers arguedthat the pleading merely established the possibility that one of their productsfailedandcausedtheallegedinjury.Id. Thedistrictcourtgrantedthedefendants’motionswithoutprejudice.Id.at*21.

A Plaintiff Must Do More Than Allege Possibilities

In its decision, the district courtreliedheavilyuponthewell-establishedrulingsinAshcroft v. Iqbal, 556U.S.662,678 (2009), andBell Atlantic Corp. v. Twombly, 550U.S.554,570(2007).BothIqbal and Twombly clearlyarticulatedthataplaintiffmustdomorethanallegepos-sibilities.Weddle, 2016U.S.Dist.LEXIS48512, at*2. Inordertostateasufficientclaim,aplaintiffmustallegefactstomaketheclaimplausible.Id. In other words, a plaintiff’sclaimmustarticulatemorethanamerepossibilitythatadefendantactedunlawfully.Id.at*8.

Withrespecttoplaintiff’snegligenceclaim,thecourtreasonedthattheplaintifffailed to articulate a breach becauseit never identifiedwhich defendants’component failed. Id. at *9-10. In thatregard,althoughanx-rayandCTscan“suggested” that thenails inplaintiff’sanklefractured,plaintifffailedtoidentifythemanufacturerofthefractureddevice.Id.Assuch,thecourtstatedthat,onthe

faceofthecomplaint,itisimpossibletodiscernwhetherallorsomeoftheprod-uctsfailedandthereforethedefendantscouldnotbeputonnoticeof a claim.Id.at*10.

Thedistrictcourtalsostatedthatthecomplaint did not plead in the alternative as she sought to hold three differentdefendants liable for the same injurieswithoutprovidinganybasistoconcludethatonewasresponsible.Id.at*14.Thecourt further noted that plaintiff hadexclusive access to informationneces-sary to determine the basis of liabilityand therefore should bear the burdento identify the responsibleparty inherpleading.

With respect to her strict productliabilityclaim,thecourtfounditimpos-sible to decipher if any of the defen-dantswere liable, since plaintiffneverarticulatedwhichcomponentcontainedtheallegeddefect.Id.at*18. To properly pleadaproductliabilityclaim,aplaintiffmustpleadandprovethattheinjurycom-plainedofresultedfromaconditionoftheproduct,thattheconditionwasunreason-ablydangerous,andthatitexistedatthetimetheproductleftthemanufacturer’scontrol. Id.Without identifyingwhich

productfailed, it is impossibletoshowthatanyofthedefendantsviolatedadutytotheplaintiff.

Lastly,thecourtstatedthattheplain-tiff failed to identify either an expressorimpliedwarrantythatanydefendantmadeaboutaparticularproductorthatanysuchwarrantywasbreached.Id. at *18. In Illinois, a plaintiffmust showa breach of an affirmation of fact orpromisethatwasmadeapartofthebasisofabargain.Id.Foranimpliedbreachofwarranty,aplaintiffmustprovethattheproductwasnotmerchantableatthetimeofsale,thattheplaintiffsuffereddamagesasaresultofthedefectiveproduct,andthattheplaintiffgavedefendantnoticeofthedefect.Again,astheplaintifffailedidentifytheparticularproductthatcausedher injuries, her breach of warrantyclaimswerealsonotproperlyplead.Id. at*18-19.

Inconsistencies and Alternative Liability

Throughoutitsopinion,thedistrictcourthighlightedthedifferencebetweenpleading in the alternative and an im-

To properly plead a product liability claim, a plaintiff

must plead and prove that the injury complained

of resulted from a condition of the product, that the

condition was unreasonably dangerous, and that it

existed at the time the product left the manufacturer’s

control. Without identifying which product failed,

it is impossible to show that any of the

defendants violated a duty to the plaintiff.


About the Authors

Product Liability | continued

plausible claim. While implausible state-ments are insufficient claims, alternate or inconsistent remarks are adequate. Id. at *13-14. In Weddle, the plaintiff was not asserting alternate or inconsistent claims, but rather seeking to hold three different defendants liable for the same injury, without providing requisite reasoning that any one of the defendants was responsible. Id. at *14. Thus, the court concluded that naming multiple defendants and alleging that each might be the responsible party for an injury does not create a mere inconsistency, but rather an implausibility. Id.

The plaintiff was not necessar-ily required to prove which defendant caused her injury if she were to plead alternative liability. The theory of alternative liability is well established in Illinois and allows a plaintiff to shift the burden of causation to two defendants after showing that both were negligent without establishing which defendant caused the injury. Id. at *11-12. The plaintiff in Weddle, however, did not establish that all three of the defendants acted negligently. Id. at *11.

In summary, attorneys in product liability claims involving multiple defen-dants must identify the specific allega-tions levied at their client. Defendants that face implausible allegations should seek a dismissal and force plaintiffs to provide more specific allegations.

Feature ArticleQuinn P. Donnelly and Brian T. HenryPretzel & Stouffer, Chartered, Chicago

During the course of a lawsuit, counsel for each party evaluates his or her respective client’s potential exposure, the benefits of settling the case, and the likely range of a jury verdict. The uncertainty surrounding jury verdicts creates an incentive for both plaintiff’s counsel and defendant’s counsel to consider and sometimes engage in settlement negotiations. Where there are multiple defendants, any eventual settlement between the plaintiff and a single defendant creates the possibility that the remaining defendants may be left “holding the bag” for more than their pro rata share of liability, or have their client exposed to a greater risk of an excess verdict.

In Illinois, the Joint Tortfeasor Contribution Act entitles the non-settling defendant to a setoff or reduction of the jury verdict in the amount the plaintiff has already received for that specific claim. 740 ILCS 100/2(c). However, it is vitally important that counsel understand what steps to take to ensure that clients receive the setoff they are entitled to under Illinois law.

As a threshold matter, it is important to distinguish between the two ways the term “setoff” is used in Illinois. The first, which is not the subject of this article, in-volves the situation where a defendant has asserted by way of counterclaim a cause of action against the plaintiff in the same lawsuit. See, e.g., Thornton v. Garcini, 237 Ill. 2d 100, 113 (2009). In order to properly pursue a counterclaim, the defendant must raise the claim in the pleadings. Id.

Settlement Apportionment and Setoff in Illinois

The second type of setoff, which this article addresses, refers to a non-settling defendant’s request for a reduction of the

Quinn P. Donnelly is an Associate at Pretzel & Stouffer, Chartered, where he is developing his prac-tice as a trial attorney. Mr. Donnelly’s practice includes commercial dis-putes, employment claims, insurance defense, and professional negligence

claims. Mr. Donnelly earned his J.D., cum laude, from the John Marshall Law School with a cer-tificate in Trial Advocacy and as a member of the Order of John Marshall. While in law school he served as a Staff Editor of the John Marshall Law Review, as a Judicial Extern for the Honor-able Maria Valdez of the United States District Court for the Northern District of Illinois, and as a Rule 711 Law Clerk for the Cook County State’s Attorney’s Office.

Brian T. Henry is an equity par tner o f Pretze l & Stouffer, Chartered, and joined the firm upon his graduation from the Uni-versity of Illinois College of Law in May of 1980. He is a trial attorney special-izing in civil litigation. Over

the last 36 years, the majority of his trials have been on behalf of hospitals or medical profes-sionals and during those years he has averaged five jury trials per year. He has had jury trials in state courts in Cook, McHenry, Lake, Kane, Will, DuPage, Grundy and DeKalb counties. Mr. Henry has taught for more than twenty five years at trial and deposition academies in Illinois organized by the Illinois Association of Defense Trial Counsel. Mr. Henry was also invited to be a member of the faculty for the 2001 Trial Academy of the International Association of Defense Counsel. In October of 2002, Mr. Henry was inducted as a Fellow of the American Col-lege of Trial Lawyers, one of the premier legal associations in North America.



damageawardbecause a co-defendanthas settledwith theplaintiffprovidingcompensation for the same injury.Thornton,237Ill.2dat113.Thistypeofsetoffcanbesoughtafteranadverseverdictbythenon-settlingdefendant,butislimitedtotheamountofthesettlementthat was allocated or apportioned to eachspecificclaim.Generally,thenon-settling defendant bears the burden ofprovingwhatportionofthepriorsettle-mentwasallocatedtotheclaimforwhichthenon-settlingdefendant is liable.Id. at116; Pasquale v. Speed Prods. Eng’g, 166Ill.2d337,369(1995);Babikian v. Mruz,2011ILApp(1st)102579,¶22;Kipnis v. Meltzer,253Ill.App.3d67,71(1stDist.1993).Whereasettlementisnot properly allocated, the non-settling defendantcanbedeniedasetoffexceptwherecertainexceptionsapply.Muro v. Abel Freight Lines,283Ill.App.3d416,419(1stDist.1996);Dolan v. Gawlicki, 256Ill.App.3d153,156(3dDist.1993).As a result, the non-settlingdefendantmustensurethatanysettlementsenteredinto are appropriately apportioned by partyandclaim.

I. The Right to a Setoff

At common law, a defendant inIllinoiswas entitled to a setoff.Muro, 283 Ill.App. 3d at 419 (citingN.Y.C., Chic. & St. Louis R.R. Co. v. Am. Transit Lines, Inc., 408 Ill. 336 (1951)).ThisrightwascodifiedbytheJointTortfeasorContributionAct(Act)whichprovidesinrelevantpart:

(c)Whenareleaseorcovenantnot to sue or not to enforcejudgmentisgiveningoodfaithto one or more persons liable in tortarisingoutofthesamein-juryorthesamewrongfuldeath,

itdoesnotdischargeanyoftheother tortfeasors from liabilityfortheinjuryorwrongfuldeathunlessitstermssoprovidebutitreducestherecoveryonanyclaim against the others to the extentofanyamountstatedinthe release or the covenant, or in theamountoftheconsiderationactuallypaid for it,whicheverisgreater.

740ILCS100/2(c).The Act was designed to prevent

plaintiffsfromreceivingadualrecoveryfor a single injury,while at the sametimesafeguardingthefinancialinterestsof the non-settling defendants.Patton v. Carbondale Clinic, S.C., 161 Ill. 2d357,370(1994);Foster v. Kanuri,241Ill.App. 3d 677, 681 (1stDist. 1992)(citingDial v. O’Fallon,81Ill.2d548,558(1980)).

II. Common Setoff Circumstances

The need for setoff can arise inthe context of cases involving one ormoreplaintiffsbringingmultipleclaimsagainstmultipledefendants.Inthiscon-text,settlementsbetweenfewerthanallofthepartiesarecommon,andthenon-settlingdefendantsareentitledtosetoffsfromthesettlementsthatdooccur.Thesecircumstancesarisefrequentlyinmedicalnegligenceactionswherethedefendantsgenerally include the hospital or treat-ment facility, a number of physicians,andothermedicalstaffwhoassistedwiththeunderlying treatment of a plaintiff.Whentherearemultipleplaintiffsinthiscontext,thelawsuitusuallyincludesthepatientandaspouse.See, e.g., Johnson v. Belleville Radiologists, Ltd.,221 Ill.App.3d100,102(5thDist.1991).

In cases involving the death of a

patientandallegationsofmedicalnegli-gence,theplaintiffswillgenerallyassertclaimspursuanttotheWrongfulDeathAct(740ILCS180/1),theSurvivalAct(755ILCS5/27-6),andtheFamilyEx-penseStatute(750ILCS65/15).Readel v. Towne,302Ill.App.3d714,716(2dDist. 1999). In this situation, therearemultiple causes of action rather thanmultipleplaintiffs.Whiletheremaybemultipleheirsclaimingalossofsociety,the estate is the sole plaintiff. Illinoiscourtshaveconsistentlyheldthat“whenalawsuitinvolvesclaimsunderboththesurvivalandthewrongfuldeathstatutes,theallocationsshouldbemadeaccordingtotheclaim.”Readel,302Ill.App.3dat719;Foster,241Ill.App.3dat681.Morespecifically,“expensesforconspicuouspainandsuffering,expensesandlossofearningsofthedecedentuptohisorherdateofdeathshouldbeallocatedtothesurvivalactionandthelossofbenefitsofthesurvivorsshouldbeallocatedtotheactionforthewrongfuldeath.”Patch v. Glover, 248 Ill.App.3d562,574 (1stDist.1993)(citingFoster,241Ill.App.3dat681).

Regardless of whether there aremultipleplaintiffsormultiplecausesofaction,thenon-settlingdefendantsmustbeawareofandmustseektoproperlyallocate any settlements and to allocate those settlements in a way that best serves the interests of the non-settlingdefendants.

III. Good Faith Findings and the Apportionment of Settlements

A. Good Faith Findings

Inevaluatingthevalidityofapro-posedsettlement,courtslooktoboththegoodfaithnatureofthesettlementaswell



as the reasonablenessof the allocationof the settlement to particular claims.Readel,302Ill.App.3dat719. In order toconstituteavalidsettlementinIllinois,pursuanttotheAct,thesettlementmustbeenteredintoingoodfaith.Belleville Radiologists, Ltd., 221 Ill.App. 3d at103.WhiletheActdoesnotdefinegoodfaith,Illinoiscourtshaveexplainedthat“in determiningwhether a settlementagreementwasmadeingoodfaith,thetrialcourtshouldnotconsideranyonefactorbutmustconsider thetotalityofthecircumstancessurroundingthesettle-ment.”Readel,302Ill.App.3dat719.

When assessing the good faithnatureofasettlement,Illinoiscourtscanrelyupontheargumentsofcounsel;af-fidavits,depositions,andotherdiscoverymaterials of record; or an evidentiaryhearing.Belleville Radiologists, Ltd., 221 Ill.App.3dat103.Theparties shouldnotrelyexclusivelyonacomparisonofthe settlement to the eventual verdict,butthismaybeconsideredasonefactorin assessing the good faith nature ofthe settlement. Id. at 104.Courts canalso consider themanipulation of anallocationasevidenceofbadfaith,butitis not per sebadfaithtoengageinsuchmanipulation.Id.at109.

Courtshaveconsideredasettlementtobeinbadfaithwherethepartiestothesettlementengageinwrongfulconduct,collusion, or fraud;misrepresent theterms of the agreement, ignore estab-lishedproceduralrulesorfailtonotifypotential defendants of the existenceof the settlement. Johnson v. United Airlines, 203 Ill. 2d 121, 134 (2003);Babb v. City of Champaign,162Ill.2d153,166-67 (1994).Asageneral rule,“anagreementthatconflictswithtermsand/orpoliciesunderlyingtheContribu-tionActdoesnotsatisfythegoodfaithrequirement.”Babb,162Ill.2dat170;

Dubina v. Mesirow Realty Dev., Inc.,197Ill.2d185,191-92(2001).Atrialcourt’sfinding that a settlementwasmade ingoodfaithisamatterlefttothediscretionofthetrialcourt.Theappellatecourtwillreversesuchafindingonlywherethetrialcourthasabuseditsdiscretion.Readel, 302Ill.App.3dat718(citingBabb, 162 Ill.2dat162).

B. Fair and Reasonable Allocation of Settlement Proceeds

Inadditiontothegoodfaithnatureofthesettlement,whenreviewingapro-posedsettlement,thetrialcourtshouldevaluatethefairnessandreasonablenessofthepercentageallocatedtoeachclaim.Readel,302Ill.App.3dat719;Muro, 283Ill.App.3dat420.Thisinquiryisaseparatequestionfromthegoodfaithnature of the settlement and the trialcourt is required conduct a hearing toevaluate both the good faith nature ofthe settlement and theapportionmentofthesettlement.Readel,302Ill.App.3dat720.Thescopeofthishearingislefttothediscretionofthetrialcourt.Id.Likethegoodfaithnatureofthesettlement,thereasonablenessoftheapportionmentiscommitted thediscretionof the trialcourtandwillnotbereversedunlessitisclearthatthecourtabuseditsdiscretion.Id.at719.

However, it is at this stage thatthe defense counselmust be assertivein providing the courtwith persuasivearguments in favor of an apportion-mentwhich is fair to the non-settlingdefendant.In Barkei v Delnor Hospital, 207Ill.App.3d255(2dDist.1990),theIllinoisAppellateCourtSecondDistrictcommentedthatthenon-settlingdefen-dantcouldhavecalledtheattorneysforthesettlingdefendantsbeforethecourtinanevidentiaryhearingtotestifyasto

howmuchofthesettlementwasbeingallocatedtoeachofthecausesofactionin thecomplaint.Barkei,207 Ill.App.3dat266-67.However, inReadel, the sameappellatecourtalsonotedthatthedefendantwas not necessarily entitledto call the plaintiff as awitness at anevidentiaryhearingasthatwouldbelefttothediscretionofthetrialcourt.Readel, 302Ill.App.3dat721.

Itisclearfromsomeoftheappellatedecisionsthatdefensecounselmayneedtovigorouslyargueforwhatheorshecontends is an appropriate and reason-ableallocation.InJohnson v. Belleville Radiologists,thetrialcourtapprovedtheallocationfroma$340,000settlementof$300,000forthelossofconsortiumcountand only $40,000 for the spousewhosufferedapost-operativeinfectionfromretainedspongeswhichleftherinfertile.Belleville Radiologists, Ltd., 221Ill.App.3dat102.Theappellatecourtrejectedthenon-settling defendant’s argument thattheallocationwasnotingoodfaith.Theappellatecourtstatedthat“manipulationofanallocationcanbeevidenceofbadfaithinasettlementnegotiationbutitisnot per sebadfaithtoengageinsuchamanipulation.”Id.at107.

Given that appellate decisions repeat-edly indicate that whether an apportion-mentisreasonableislefttothediscretionofthetrialjudge,itisclearthatthebestopportunitytoadvocateforareasonableapportionment iswith the trial judge.Exceptinextremesituations,itisunlikelythatanappellatecourtwilloverturntheapportionmentdecideduponbythetrialjudgeifthetrialjudgemakesitsdetermi-nationafteranevidentiaryhearing.



C. Burden of Proving the Portion Allocated by Settlement

As discussed briefly above, thegeneral rule under Illinois law is thatthe non-settling defendant–the partywhowouldbenefitfromasetoff–bearsthe burden of provingwhat portionof a prior settlementwas allocated orattributabletothatdefendant’sshareofliability.Thornton, 237 Ill. 2d at 116.If the non-settling defendant cannotcarry this burden theywill generallybeprecludedfromreceivinganysetoff.Muro,283Ill.App.3dat419;Dolan, 256 Ill.App.3dat156.Courtshaveexplainedthat in precluding any setoff, they arenotallowingfordoublerecoverybytheplaintiffbecausewheretheamountisnotallocated, thedefendanthasnowayofarrivingattheamountthatisattributabletoaspecificclaimorpartythatshouldbesetoffagainsttheverdict.Kipnis,253Ill.App.3dat71-72.

Illinoiscourtshaverecognizedtwonarrow exceptions when the non-settling defendantshouldnotbeartheburdenofprovingwhatportionofaprevioussettle-mentshouldbesetoff.First,inPatton v. Carbondale Clinic, in holding that the defendantwasentitledtosetoffsforpriorsettlements,theIllinoisSupremeCourtexplainedthat“whereaplaintiffrecoversforseveralinjuriesinapreviouslawsuitandfailstoapportiondamagesaccord-ingly,asubsequentdefendantshouldnotbeartheburdenofprovingwhatportionof the plaintiff’s previous settlementshouldbeset-offorbedeniedasetoff.”Patton,161Ill.2dat370.

Inthatcase,thesettlementsatissueresulted fromprior lawsuits towhichthe defendant seeking setoffwas nota party. The court reasoned that theplaintiff—whowasapartytothosepriorsettlements—wasinthebestpositionto

apportion the prior settlements to avoid this issue and noted that the interestof encouraging settlementsmust bebalancedwiththeinterestofprotectinganon-settlingparty’sfinancialinterestsandlimitingtheplaintifftoonerecoveryperinjury.Id.at372-73.

Most recently, in Babikian v. Mruz, inholdingthatthedefendantwasentitledtoasetoff,theIllinoisAppellateCourtFourthDistrict examined a situationwheretheplaintiffandherhusbandfirstentered into a settlement agreement with amedicalcenterandthenlaterbroughtsuit against her doctor.Babikian v. Mruz, 2011 ILApp (1st) 102579, ¶ 4.Thecourt reasoned thatsince thenon-settling defendantwas not a party tothepriorsettlementandcouldnothaverequestedthesettlementbeallocatedatthetime,thatdefendantshouldnotbearthe burden of the plaintiff’s failure toproperly apportion the settlement. Id.¶23.Thesetwoexamplesarerareandboth involve circumstanceswhere thenon-settlingdefendantwasfarremovedfrom the initial settlement and couldnothaveeasilyrequestedthattheearlysettlementsbeallocated.

Courts have explained thatwherea case involves a single plaintiff butmultipleclaims,allocationisnotcriticalbecausethesingleplaintiffreceivestheentire settlement amount.Kipnis, 253Ill.App.3dat72.Inthesingleplaintiff,multipleclaimcircumstance,courtshaveallowedforsetoffinthefullamountofthesettlement.Giordano v. Morgan,197Ill.App.3d543,549-50(2dDist.1990).

D. Denials of Setoffs

Insituationswheretherearemultipleplaintiffs ormultiple defendants, andsometimes when there are multiplecausesofaction,anon-settlingdefendant

maybedeniedasetoffifthatdefendantdoesnotensurethatthecourthasdeter-mined an allocation for the settlementproceeds.

A setoff has been deniedwhen adefendantwasfoundliableononlysomebut not all of the plaintiff’s claims. InThornton,theplaintiffadministratorfiledacomplaintassertingcausesofactiononbehalfoftheestateofastillborninfantunder theWrongfulDeathActand theSurvivalAct, and an individual causeof action for intentional infliction ofemotionaldistressbythemotherofthedecedent.Thornton,237Ill.2dat104.

At thefirst trial, the jury found infavorofallofthenursesandphysicianastoallcausesofaction.ThejuryfoundforthehospitalastotheclaimsundertheWrongfulDeathAct and theSurvivalAct, but found against the hospital onthe claim for intentional infliction ofemotional distress. Id. at 103-04Aftertheverdict,theplaintiffsettledwiththehospital for the amount of theverdict.Theappellatecourtgrantedanewtrialagainstthephysician.Id.at104.

At thesecond trial, the jury foundinfavorofthephysicianastothecausesofactionundertheWrongfulDeathActandtheSurvivalAct,butfoundagainstthephysicianon a claim for negligentinfliction of emotional distress (theplaintiff amended her complaint afterthe evidence and submitted negligentinflictionofemotionaldistress instruc-tion to the jury). Id. at 104-05. Sincethe hospital’s settlement had not beenallocated among the various causesof action, the defendantwas denied asetoffeventhoughthetortofnegligentinflictionofemotionaldistresswasnotevenpledatthetimeofthesettlement.Thecourtalsonotedthatthesettlementrelease of the hospital applied to all



possible causes of action and not just the theory of intentional infliction of emotional distress. Id. at 114-15.

In Dolan, the plaintiff administrator filed a complaint asserting causes of action under the Wrongful Death Act and the Survival Act. Dolan, 256 Ill. App. 3d at 154. The plaintiff settled with the primary insurance carrier and went to trial against the defendants who had excess insurance coverage. Id. The trial court did not make an allocation at the time of the settlement. Id. When a verdict was returned against the defendants, the trial court did allow a setoff and that ruling was reversed on appeal as there had not been an allocation at the time of the settlement. Id. at 155.

The appellate court noted that at the time of the settlement, the plaintiff was still claiming loss of society beyond the date of his remarriage, but that element of damages had been barred at the trial by the defendants, which was the court’s rationale for denying the setoff. Id. at 156. Even though a claim for loss of consortium after remarriage was not recoverable under Illinois law, the appel-late court seemed to indicate that some of the prior settlement by the co-defendant could have been allocated to it. Id. at 157.

In Kipnis, the plaintiff alleged that there was a failure on the part of the defendants to investigate a nodule on a routine admitting chest x-ray when she was hospitalized for a ruptured hamstring. Kipnis, 253 Ill. App. 3d at 67. The plaintiff’s husband also filed a loss of consortium claim. Id. Prior to trial, the co-defendant physician settled for $300,000 before the trial judge, but there was no apportionment at that time. Id. at 67-78. The husband then dismissed his loss of consortium claim before opening statements. Id. at 68. The plaintiff had undergone seven thoracotomies in treat-

ing her lung cancer and was terminal at the time of trial.

The jury returned a verdict of $20,000 against the remaining defendant. Id. The trial judge refused to apportion the prior settlement or to permit a setoff even though it was obvious that more than $20,000 of the $300,000 settlement should have been allocated to the plaintiff who was dying of lung cancer. Id. The appellate court affirmed, but failed to address in its opinion why the trial judge, who had heard all the evidence and who had approved the settlement only a couple of weeks earlier, could not have then determined the allocation. The second division of the Illinois Appellate Court First District decided the Kipnis appeal.

However, in the same year, in Patch v. Glover, 248 Ill. App. 3d 562 (1st Dist. 1993), the fourth division of the Illinois Appellate Court First District remanded the case back to the trial court to allocate a settlement reached before trial by a co-defendant without an allocation and to then apply the setoff. Patch, 248 Ill. App. 3d at 574. That result was exactly what the defendant in Kipnis requested but the appellate court did not address in its opinion.

These cases illustrate that defense counsel must demand an allocation at the time the court finds a settlement to be in good faith. Defense counsel should also make a clear record of any objections to the allocation reached by the trial judge.

IV. Strategic Considerations

From the outset of litigation, a defendant in a multi-party lawsuit should serve discovery requests upon the plaintiff(s) requiring the disclosure of the existence of any prior or current settlements relating to the case and the

claims asserted against that specific defendant. Illinois Supreme Court Rule 213(i) imposes a continuing duty on the plaintiff to supplement answers when new or additional information becomes available. Ill. S. Ct. R. 213(i). By propounding this request early in the litigation, a defendant can avoid missing the opportunity to request a setoff. Even when a co-defendant has drafted a settle-ment release containing confidentiality provisions, the non-settling defendant should be entitled to and must insist on discovering the amount of and the terms of the settlement.

While courts acknowledge that a non-settling party is not entitled to control the settlement allocation, Illinois law requires that all proposed settlements be presented to the court for a good faith finding and the evaluation of the fairness and reasonableness of the allocation. Belleville Radiologists, Ltd., 221 Ill. App. 3d at 103, 111. At the time a plaintiff presents a proposed settlement to the court, a non-settling defendant should both object to the allocation if it is unfavorable and request that the court provide a hearing on a more appropriate allocation of the settlement. A failure to object to the settlement allocation will waive the non-settling defendant’s right to later argue that the settlement ap-portionment was unfair or unreasonable. Hansen v. Baxter Healthcare Corp., 309 Ill. App. 3d 869, 887 (1st Dist. 1999).

Following the entry of a verdict against a non-settling defendant, it is advisable that the defendant promptly request a setoff in the amount of any prior settlement by filing a post-trial motion. However, a request for a setoff does not need to be made within 30 days after the entry of the judgment. Star Charters v. Figueroa, 192 Ill. 2d 47, 48 (2000). In Star Charters, the Illinois Supreme Court



explainedthat“adefendant’srequestforsetofftoreflectamountspaidbysettlingdefendantsseeksnottomodify,butratherto satisfy, the judgmententeredby thetrialcourt.”Star Charters,192Ill.2dat48.Therefore,thedefendantcanbringasupplementalenforcementproceedingtorequestasetoffifitwasnotrequestedatanearliertime.Id.at49.

In the event that the non-settling defendant is denied a requested setoff,that defendant should appeal. Thedeterminationofwhetheradefendantisentitledtoasetoffisaquestionoflawthatissubjecttoade novostandardofreview.Thornton,237Ill.2dat115-16.If on review the appellate court findsthat the lowercourt improperlydeniedthe defendant’s request for setoff, thatappellate court can, pursuant to itsauthorityunderIllinoisSupremeCourtRule366(a),grant thesetofforiginallysoughtinthelowercourt.Babikian, 2011 ILApp(1st)102579,¶26.

A non-settling defendant has theright toseekasetoffresultingfromanappropriatelyallocatedsettlement.Thisshould have the effect of reducing theoverallverdictawardedtotheplaintiff,and in turn, the plaintiff’s overall re-covery. Illinois law allows trial courtssignificant discretion in reviewing andapprovingtheallocationofsettlements,which has provided plaintiffs witha mechanism to increase the overall recovery in cases involvingmultipledefendantsandclaims.

Since parties to a settlement are essentially given carte blancheauthor-ity to allocate or apportion a settlement betweenthemselves,plaintiffsareabletomaximizerecoverysometimesinexcessof the verdict awarded by the jury. Inordertoachievethisend,plaintiffswillfirstassesstheseparatecausesofactionin an attempt to determine which claim

ismorevaluableormoreeasilyproved.Plaintiffs thenwill seek to allocate amajority of any settlement to the lessvaluableorlegallymoredifficultclaimto prove.By allocating the settlementinthisway,aplaintiffisrelyingonthelikelihood that the jurywill return averdictinanamountthatislessthantheamountallocatedtotheclaim.

Asdiscussedearlier, a signifi-cantexampleofthistacticcanbeseenin Johnson v. Belleville Radiologists, where a $340,000 settlement allocated$300,000tothehusband’slossofcon-sortiumclaimand$40,000forthewife’sinjuries.Belleville Radiologists, Ltd.,221Ill.App.3dat102.Thejuryultimatelyreturned an award of $50,000 for thehusband’slossofconsortiumclaimand$529,600 for thewife’s injuries.As aresult of the unequal allocation, thenon-settlingdefendantwasonlyentitledtothebenefitof$90,000insetoffandtheplaintiffsreceived$250,000inexcessofthejuryaward.Id.at106-07.

The non-settling defendant shouldanticipate this strategy and shouldaggressively challenge allocation or apportionmentonthegroundsthatitisaimedatachieving thisend.When theplaintiffpresentsaproposedsettlementtothecourt,thenon-settlingdefendantshould tender as much substantiveevidenceaspossible,includingbutnotlimitedtodepositions,affidavits,medicalrecords,andotherdocuments,insupportofanallocationthatfairlyandreasonablyrepresentsandcloselymirrorsthelikelyoutcomeattrial.Byadvocatingforanal-locationthatisreflectiveoftheeventualjury verdict, a non-settling defendantcanmaximize setoff andminimize thetotalamountoftheeventualjudgemententered against it.The record createdmayalsobeofassistanceforanylaterappeal.

V. Conclusion

As a defendant, it is critical to beproactivefromtheoutsetoflitigationinordertosafeguardtherighttoanyeven-tualsetoff.Asageneralrule,anylitiga-tioninvolvingmorethanonedefendantcreates thepotential forasetoffclaim.Eachdefendantshouldstayapprisedofanyandallsettlementsthattheplaintiffenters intowith any co-defendants inordertorequestthatthecourtappropri-ately allocate that settlement in a fairand reasonable way by both claim and party (if there aremultiple plaintiffs).Non-settlingdefendantsshouldaggres-sively challenge any apportionment that variesfromthelikelyjuryoutcomeinanefforttomaximizethesetoffamountandminimizeanywindfallfortheplaintiffinexcessofthejuryverdict.

Practice Pointers

1. STAY INFORMED: In discovery requestanyandallinformationrelat-ingtocurrentandpriorsettlementsrelatingtothelitigation.

2. COMMUNICATE: Conferwithco-defendantsifyoubecomeawarethey are actively negotiating a settlement. Determine whetherco-defendant’s counselwill sup-port a reasonable allocation at any evidentiaryhearingandfindout ifthewordingof any releases couldbe harmful or beneficial to yourargumentsregardingtheallocationofthesettlementfunds.

3. ANTICIPATE: Research similar

casesinvolvingclaimsinthejuris-diction where the matter is pend-ing to approximate the likely jury



verdictsinordertorequestthatthecourtmodifyanyproposedalloca-tiontoclosermirrorthelikelyjuryverdicts.Defense counsel shouldalso consider scenarios where the plaintiffscouldeitherdismisscausesofactionafterasettlementorevenhaveoneplaintiffdismisshisorherclaiminanefforttoimpactthesetoffavailable.Anysuchscenarioshouldberaisedinanyevidentiaryhearing.Forexample,iftheplaintiffsattempttoallocate75%ofasettlementforthe spouse’s loss of consortiumclaim, defense counsel can pointoutthattheplaintiffscoulddismissthelossofconsortiumclaimpriortotrialsothatanyjuryverdictwouldbeattributableonlytothedamagesoftheinjuredplaintiff.

4. OBJECT: At the time that the

plaintiffproposesanysettlementtothecourtfortheentryofagoodfaithfindingandforadeterminationthattheallocationsarefairandreason-able,defensecounselshouldobjecttotheplaintiff’sproposedallocation.Defensecounselshouldthenrequestahearingontheissues,asisallowedandrequiredbylaw,andatthehear-ing, provide substantive evidencethattheallocationisneitherfairnorreasonable and propose an alterna-tive allocation for the settlementproceeds.A court reporter shouldbepresentforthehearingtocreatearecordforapossibleappeal.

5. REQUEST SETOFF:Make therequestforasetoffintheamountofthe allocated settlement proceeds promptlyafteraverdictandrenewany objections to the original alloca-tion.

Supreme Court WatchM. Elizabeth D. KellettHeplerBroom LLC, Edwardsville

M. Elizabeth D. Kellett is an associate at Hep-lerBroom LLC. Ms. Kel-lett is a litigation attorney with a primary emphasis in the defense of complex, multi-party civil cases and class actions, including all aspects of product liability,

particularly pharmaceutical drugs and devices. Prior to joining HeplerBroom, Ms. Kellett prac-ticed law in Washington, D.C. and represented institutions of higher learning in administrative hearings and proceedings before the U.S. De-partment of Education. She also represented insurance and financial corporations and in-dividuals in proceedings before the Securities and Exchange Commission, civil and criminal litigation, and in matters of corporate governance and compliance. Ms. Kellett earned her B.A. from Georgetown University in Washington D.C. in 2002 and her J.D. from Georgetown University Law Center in 2006.

About the Author

The plaintiff is a tenured schoolteacherwhowas dismissed for causefrom employment by the defendantBoardofEducation(Board).Beggs v. Bd. of Educ. of Murphysboro Cmty. Unit Sch. Dist. No. 186,2015ILApp(5th)150018,¶1.Theplaintiffhadneverreceivedanunsatisfactoryevaluation.Beggs, 2015 ILApp (5th) 150018, ¶ 12.However,during the 2011-12 school term, afterherfather’sdeathandmother’sillness,shemissed numerous days andwasconsistentlylatetoandunpreparedforclass.Id.¶12.ShereceivedaletterofconcerninJanuary2012,wassuspendedwithout pay in February 2012, andreceivedanoticeof remedialwarningonFebruary21, 2012. Id. Pursuant tothenotice,theplaintiffwasrequiredto(1)timelyreporttowork;(2)bepreparedtoandbeginteachingwhenclassstarts;and(3)havelessonplansavailableforsubstitute teachers. Id. ¶ 13.Becausethe plaintiff allegedly violated theserequirementsonfourseparatedays,shewas suspended and the administrationrecommended to the Board that she be terminated.Id.¶15.

TheBoard dismissed the plaintiffandshetimelyrequestedahearingbeforea hearing officer,whowasmutuallyselectedbytheparties.Id.¶1.Thehear-ingofficerrecommendedthattheBoard’s

If a Hearing Officer Recommends Against Termination, When Can

a Downstate School Board Fire a Tenured Teacher?

Beggs v. Board of Education of Murphysboro Community Unit School District No. 186, No. 120236, Fifth District Nos. 5-15-0018, 5-15-0070

decision be reversed. Id.The hearingofficer’s decision includedfindings offactandarecommendationconcerningwhether the Board established, by a preponderanceoftheevidence,thattheplaintiffviolated theBoard’s notice ofremedialwarning,thatherconductwasirremediable, and whether the proposed dismissalshouldbesustained.Id.¶17. TheBoardfoundthatsomeofthehearingofficer’s findings of factwere againstthemanifestweightoftheevidenceand



dismissed theplaintiffnotwithstandingthe hearing officer’s recommendation.Id.¶¶1,17.OnSeptember3,2013,theplaintifffiledacomplaintforadministra-tivereviewinthecircuitcourtofJacksonCounty.Id.¶1.However,shemailedtheBoard’ssummonstoanincorrectaddressanddirectedthesummonstoanincorrectindividual.Id.¶3.Despitetheseerrors,the Board received the summons bySeptember 4, 2013. Id.OnOctober 8,2013,theBoardfiledamotiontodismiss,arguing that the plaintiff’s failure toproperlyservetheBoardwithin35daysfollowingtheBoard’sdecisionviolatedtheIllinoisAdministrativeReviewLaw.Id.OnOctober 15, 2013, the plaintiffsoughtleavetofileanamendedaffidavitoflastknownaddressesandrequestedanaliassummons.Id.¶4.Thealiassum-monswasissuedonOctober21,2013,50daysaftertheplaintifffiledhercomplaintand 49 days after theBoard receivedthe original summons and complaint.Id.TheBoard againfiled amotion todismiss,arguingthatthealiassummonsdidnotremedytheplaintiff’sfailuretocomply with the Illinois Administrative ReviewLaw.Id.ThetrialcourtdeniedtheBoard’smotionstodismiss,findingthat the original summonswas timelyandtheplaintiffhadanaliassummonsissuedwith due diligence and servedwithin50days.Id.

The trial court then turned to theBoard’sdecisiontodismisstheplaintiffnotwithstandingthehearingofficer’srec-ommendation.Thetrialcourtdeterminedthatitmustapplythefollowingstandardofreview:

(1) Factualdeterminations–whetherthehearingofficer’sfactualdetermina-tionsareagainstthemanifestweightoftheevidence;TheBoardshouldnot reverse the hearing officer’s

findings unless all reasonable andunbiasedpersonsclearlyagreethatthe hearing officer should havereachedtheoppositeconclusion;

(2) Whethercausefordismissalexists–theBoard’sfindingsofcausetodis-charge are not prima facie trueandcorrect and will be reversed where theyarearbitrary,unreasonable,orunrelated to the requirements ofservices;

(3) Whether conduct is remediable orirremediable (question of law andfact)–clearlyerroneousstandard.

Id.¶18.Thetrialcourtconcludedthat“on review, deference is to be givento the hearing officer because of hismandated experience, impartiality, and the fact that the hearing officer is theonly one bound to hear evidence andevaluate the credibility ofwitnesses.”Id.ThetrialcourtfoundthatdismissalwasnotwarrantedandthereforereversedtheBoard’s decision and ordered theplaintiff’s reinstatement and back payofwagesandbenefits.Id.¶¶2,18.TheBoardappealed.Id.¶2.

TheIllinoisAppellateCourtFifthDistrictfirstheld,usingde novo review, that the trial court did not errwhen itdeniedtheBoard’smotiontodismiss.Id.¶¶5,10.TheFifthDistrictfoundthatthe35-dayperiodforissuanceofsummonsismandatory,notjurisdictional.Id.¶7.Therefore, failure to complywith theprovisiondoesnotautomaticallydeprivethe court of jurisdiction. Id.TheFifthDistrictnextfoundthatplaintiffclearlydemonstrated a good-faith effort tocomply with the Illinois Administrative Review Law and that the Board did not showthatitsufferedanyprejudiceasaresultoftheimproperservice.Id.¶¶9,10.Therefore,theFifthDistrictupheldthetrialcourt’sruling.Id.¶10.

TheFifthDistrictnextaddressedtheBoard’sclaimthattheplaintifffailedtodemonstrate any basis for overturningthedecisiontodismissher.Id.¶11.ThestandardofreviewtobeappliedtotheBoard’s decisionwas an issue of firstimpression because of recent amend-ments to section 24-12 of the SchoolCode as it applies to downstate dismissal proceedings. Id. ¶¶ 38, 40.The 2011EducationReformAct (Act) removedfinal decision-making authority indismissalproceedingsfromthehearingofficerandgaveittotheschoolboards.Id.¶40.However,theActalsoimposedproceduralhurdlesforboardsthatdecidetogoagainstahearingofficer’srecom-mendation.Id.¶40.Forexample,section24-12 requires boards to incorporate ahearing officer’s factual findings andprohibits boards from departing froma hearing officer’s findings unless thefindingsareagainstthemanifestweightoftheevidence.Id. Section24-12alsorequires hearing officers in downstatedismissal cases to be accredited by a national labor organizationwith aminimum five years’ experience andrequires hearingofficers to participateinboard-approvedtraining.Id.

TheFifthDistrictfoundthat,undertheAct,a reviewingcourt shouldgivestrong deference to a board’s findingsof fact and decision.However, itwasunclearwhatweighta reviewingcourtshould give to a downstate hearingofficer’s recommendation. Id. ¶ 41.In examining this issue, the court firstlookedattheplainlanguageofthestat-ute.TheFifthDistrictfoundthatwhile“thereisnoquestionthattheboardmay departfromthehearingofficer’srecom-mendation . . . it seemsapparent from thereadingofthestatuteasawholethatthelegislaturedesiredsuchadeparture


Supreme Court Watch | continued

tobeanunusualoccurrencethatwouldproduce careful scrutiny if broughtbefore a reviewing court.” Id. ¶ 42(emphasis in original).Therefore, theFifthDistrict reasoned, the legislatureintendedthatacertainlevelofdeferenceremainwiththehearingofficerasthefactfinder.Id.¶43.TheFifthDistrictfoundthat this interpretation was consistent withthelegaltraditionofgivingdefer-ence to the impartial entity charged with hearingevidenceandevaluatingwitnesscredibilityandfurtherfoundthatitgaveteeth to theSchoolCode’s proceduralhurdlesforboardswhowanttogoagainstahearingofficer’srecommendation.Id.Thus,theFifthDistrictfoundthatitsjobwastofocusontheBoard’sfindingsthatwere contrary to the hearing officer’sfindings and to determinewhether thesteps taken by theBoard in dismissalwere supportedby the evidence at thehearing.Id.¶44.TheBoard’sdecisionwould be reversed onlywhere itwasarbitrary,unreasonable,orunrelated totherequirementofservices.Id.

Afterreviewingeachallegedviola-tionofthenoticeofremedialwarning,the FifthDistrict determined that thehearing officer’s findings of factwerereasonable based on the evidence and thattheBoard’scontraryfindingswerenotsupportedbytheevidenceatthehear-ing.Id.¶¶45-48.Because“theBoarddidnothavesufficientevidencetodismisstheplaintiffinlightofthedeferenceaf-fordedto[thehearingofficer’s]findingsof factand recommendation” theFifthDistrictupheldthetrialcourt’sordertoreinstatetheplaintiff.Id.¶19.

The Board seeks review in theIllinoisSupremeCourt.First,theBoardargues that the FifthDistrict ignoredexplicit legislative intent to transferauthority over teacher dismissals fromhearings officers to local boardswhen

they gave deference to the hearingofficer’s recommendation. See 97thIll.Gen.Assemb.,Apr. 15, 2011Reg.Sess., S.Transcript, pp. 294-95 (“Themain difference is that theBoardwillmakethefinaldecision....TheBoardis the employer and they should havethat right . . . .”).By deferring to thehearing officer’s recommendation, theBoardargues,theFifthDistrict’srulingeffectively negates the School Codeamendments and prevents any board fromdismissingatenuredteacherifthehearingofficerrecommendsotherwise.

Second, the Board argues that,because it is theadministrativeagencyin a teacher dismissal case, the FifthDistrictfailedtogiveproperdeferencetotheBoardasrequiredbytheIllinoisAdministrativeReviewLaw.AccordingtotheBoard,itsdecisionshouldbesub-jecttothefollowingstandardofreview:

(1) Factualfindings–theBoard’sfactualfindingsshouldnotbereversedun-less they are against themanifestweightoftheevidence;

(2) Mixed questions of law and fact–clear error standard; theBoard’sdecision should not be reversed

unless the reviewing court is leftwiththedefiniteandfirmconvictionthatamistakehasbeencommitted.

Bd. of Educ. of City of Chi. v. Ill. Educ. Labor Relations Bd., 2015 IL118043,¶¶ 15-16.Therefore, theFifthDistricterredwhenitfailedtoreviewtheBoard’sdecisionusingthesestandardsofreviewandfurthererredwhenitgavedeferencetothehearingofficer’srecommendation.

Finally, theBoard argues that theplaintiff’s complaint should have beendismissedforfailuretostrictlycomplywithserviceofprocessproceduresundertheIllinoisAdministrativeReviewLaw.AccordingtotheBoard,thegoodfaithexceptionaffordedtotheplaintiffshouldonly be usedwhen a summons is nottimely issued “due to circumstancesbeyondthepetitioner’scontrol.”Brazas v. Property Tax Appeal Bd.,309Ill.App.3d520,527(2dDist.1999). Becausethe plaintiff’s failure to properly issuethesummonswasduetoherownerrors,the good faith exception should notapply.AccordingtotheBoard,theFifthDistrict’sdecisionimproperlyexpandedtheIllinoisAdministrativeReviewLaw’sgoodfaithexception.

Does The Snow And Ice Removal Act Apply When a Plaintiff Is Injured

Due To a Building Defect Or Negligent Property Maintenance?

Murphy-Hylton v. Lieberman Management Services, Inc., No. 120394, First District No. 1-14-2804

Theplaintiffisacondominiumresi-dent(resident)whofellwhilewalkingonthesidewalkoutsideofhercondominiumcomplex.Murphy-Hylton v. Lieberman

Mgmt. Servs., Inc., 2015 ILApp (1st)142804,¶1.Shesuedthecondominiumowners and management company (defendants)intheCircuitCourtofCook



County alleging that “their negligentmaintenanceofthepropertycreatedanunnatural accumulation of ice,whichcausedher fall.”Murphy-Hylton, 2015 ILApp(1st)142804,¶1.Thedefendantsmovedforsummaryjudgmentclaimingthat theywere immune from liabilityunder theSnow and IceRemovalAct(Act),745ILCS75/1–75/2.Id.TheActwascreatedinordertoencouragepeopletocleanthesidewalksabuttingtheirresi-dencesandtoprotectsuchpeoplefrombeingfoundliablewhentheyundertakesnowremovalefforts.Id.¶25.UndertheAct,adefendantwillnotbefoundliableforpersonalinjuriesallegedlycausedbythesnowyoricyconditionofasidewalkiftheyremovedorattemptedtoremovethesnoworicefromthesidewalk.Id.

In support of their motion, thedefendants citedRyan v. Glen Ellyn Raintree Condominium Ass’n, 2014 ILApp(2d)130682,inwhichtheIllinoisAppellateCourtSecondDistrictheldthatthe Act applies no matter how the patch of ice in questionwas formed.Ryan, 2014ILApp(2d)130682,¶20.Inheropposition to summary judgment, theresidentarguedthattheActonlyappliesto cases alleging negligence related to snow and ice removal efforts and nottocasesallegingnegligencecausedbyinsufficientmaintenanceofapremises.Id.¶13.Insupportofheropposition,theresident cited to Greene v. Wood River Trust, 2013 ILApp (4th) 130036, inwhichtheIllinoisAppellateCourtFourthDistrict held that the Act did not apply tonegligenceactionsforinjuriescausedby defective construction or impropermaintenance.Greene,2013ILApp(4th)130036, ¶ 18.The trial court grantedsummaryjudgment,findingthatGreene was wrongly decided and agreeing with theSecondDistrict’sholdinginRyan that theActappliesevenwhentheunnatural

accumulationofsnowandiceisduetoabuildingdefect.Murphy-Hylton, 2015 ILApp(1st)142804,¶21.Theresidentappealed.Id.¶22.

Reviewing the case de novo, the Illi-noisAppellateCourtFirstDistrictfoundthat the Snow and Ice Removal Act did notapplytotheresident’snegligencesuitandthusthedefendantswerenotimmunefromliability.Id.¶1.TheFirstDistrictthereforereversedthetrialcourt’sordergrantingsummaryjudgment.Id.

The FirstDistrict first discussedRyan and Greene, the two cases on which thepartiesandthetrialcourtrelied.Id.¶28.However,theFirstDistrictdidnotfindthatRyan and Greene had opposite holdings.Id.InGreene,theplaintiffdidnotallegenegligentsnoworiceremoval.Id.¶29.Rather,sheclaimedthattheiceshe slipped and fell on resulted fromdefectiveroof,gutters,anddownspout.Id.TheFourthDistrict found that theplainlanguageoftheActdidnotapplytoallegationsrelatedtodefectiveconstruc-tionorimpropermaintenance.Id.¶31.InRyanhowever,theplaintiffspecificallyalleged that the defendants voluntarilyundertooktoremovesnowandicebutfailedtoclearthepatchoficeonwhichsheslipped.Id.¶32.InRyan, the Second District held that the Act had prima facie application toplaintiff’sclaimbecauseshe attributed her fall to defendants’failed snow and ice removal efforts.Id. ¶ 35.Therefore, the FirstDistrictfound that “when examined together,Greene and Ryan both reach the same conclusion, namely, that allegations ofnegligenceinadefendant’ssnowandiceremovaleffortsarerequiredinordertotriggerimmunityundertheAct.”Id.¶28.

TheFirstDistrictnextclarifiedthatthesoledispositiveissuebefore itwasthe scope of the immunity providedundertheAct.Id.¶39.TheFirstDistrict

then held, consistent with Greene, that “theActdoesnotapplytocaseswherethe plaintiff’s complaint is silent as tonegligentsnowremovaleffortsbutratherisgroundedinallegationsthatdefendantsnegligentlymaintained or constructedtheirpremise.”Id.Becausetheresidentmade it clear that she was not alleging negligent snow or ice removal, the Act didnotapplyand thedefendantswerenot immune from litigation. Id. TheFirstDistrictexplainedthatitsholdingwassupportedbytheplainlanguageoftheAct,which provides immunity forinjuries related to snow removal effortonly, not defective construction orimpropermaintenance.Id.¶41.TheFirstDistrictfoundthatitwouldbecontrarytothespiritoftheActtofindthatitpro-tected those who negligently maintained their premises. Id. ¶ 42. Finally, theFirstDistrict noted that, even in caseswheretheplaintiffallegesinjuryduetonegligent snow removal, adefendant’scontractforsnowandiceremovaleffortsis not prima facieevidenceofanefforttoremovesnowandiceundertheAct.Id. ¶ 44.This is because the purposeof theActwas toencouragepeople toclean their sidewalksnot to encouragepeople to enter into contracts to have theirsidewalkscleaned.Id.

ThedefendantsseekreviewintheIllinoisSupremeCourt.First,thedefen-dantsclaimthattheresident’sallegationsdoimplicatetheremovalofsnowandiceandthereforetheActappliesevenundertheFirstDistrict’sholding.Second,thedefendantsargue that theFirstDistrictshouldhavefollowedtheholdingRyan becauseRyan was the most recent rulingon the applicationof theAct inacase involvinganallegeddefectandthe Ryan factswere identical to thoseinthiscase.TheRyan courtspecifically


Supreme Court Watch | continued

About the Author

Craig L. Unrath is part-ner at Heyl, Royster, Voelker & Allen, P.C., and Chair of the firm’s Ap-pellate practice group. He is also Vice Chair of the Professional Regula-tion/Licensure practice

group. He began his career with Heyl Roy- ster in 1994 after serving for two years as law clerk to Justice Carl A. Lund of the Illinois Ap-pellate Court, Fourth District. Mr. Unrath has extensive experience in the Illinois Appellate Courts, Illinois Supreme Court, and the Seventh Circuit Court of Appeals. He has also argued cases in the United States Courts of Appeals for the Eighth Circuit, and the Federal Circuit. He served as President of the Illinois Appellate Lawyers Association from 2007 to 2008, and currently serves as Chair of the Amicus Com-mittee for the Illinois Association of Defense Trial Counsel (IDC).

Craig L. UnrathHeyl, Royster, Voelker & Allen, P.C., Peoria

Amicus Committee Report

noted that the Act eliminates liability for acts or omissions in snow and iceremovalefforts.Ryan,2014ILApp(2d)130682,¶15.Therefore,theActwouldapply to ice causedbywater drippingfromadefectiveroof(an“omission”)ifa property owner removed or attempted toremovetheice.Id.¶15.

The defendants’ third argumentis that the FirstDistrict’s holding es-sentially eliminates the application oftheAct to personal injury cases.Thedefendantsallegethatallaplaintiffwillhave to do is allege a building defectinstead of insufficient snow and iceremovaleffortsinordertopleadaroundtheapplicationoftheAct.ThedefendantsalsowarnthattheFirstDistrict’sholdingbasicallyinsulatessnowandiceremovalcontractorsfromliabilitybecauseaplain-tiffisnowincentivizednottoimplicateremovaleffortsinhisorhersuit.

Finally, the defendants argue thattheFirstDistricterredwhenitheldthatacontractforsnowandiceremoval isnot prima facie evidence of snowandiceremovalefforts.Thedefendantsnotethat in Pikovsky v. 8440-8460 North Skokie Boulevard Condominium Ass’n, Inc., 2011 ILApp (1st) 103742, theFirstDistrictheldthat,byhiringasnowremovalcontractor,defendantsmadeaconscious effort to clear snowand icefromtheirpremises.Therefore,theFirstDistrict’srulinghereisindirectconflictwith Pikovsky.

The IDC has been very active filingamicus curiae briefs supportingdefendantsincasespendingbeforetheIllinoisSupremeCourtandtheIllinoisAppellate Court. In fact, the IllinoisSupremeCourt recently issued rulingsintwoofthesecases.BelowisareviewoftheIDC’sfilingsinpendingcasesandthosethathavebeendecided.

Current & Recent Filings

In June, the IDCfiled anamicus curiae brief in Murphy-Hylton v. Lieberman Management Services, Inc., which is pending before the IllinoisSupreme Court.Murphy-Hylton v. Lieberman Mgmt. Servs., 2015 IL App (1st) 142804, appeal allowed by 48N.E.3d1093(Table)(Ill.Mar.30,2016)(S. Ct.No. 120394).Murphy-Hylton is an interesting case that turnson theprecise language of theSnowand IceRemovalAct, 745 ILCS75/1, and thesplitofauthority interpreting it.Underthe Act, a landowner, or person in charge ofmaintaining property,who removes or attempts to remove snow or icefromsidewalkscannotbefoundliableforinju-riescausedbythesnowyoricyconditionofthesidewalk.745ILCS75/2.

TheAct’spurpose is to encouragelandowners and property managers to clear their sidewalks of ice and snowby providing themwith immunity fornegligentlydoingso.745ILCS75/1.Intheunderlyingcase,theplaintiffslippedandfellonthesidewalkoutsideherapart-ment and sued themanagement com-pany,whowasresponsibleforshoveling

thesidewalks.Murphy-Hylton, 2015 IL App (1st) 142804, ¶ 1.The plaintiff’scomplaintincludedallegationsofeveryconceivable negligent act involving ice formationonthesidewalks,but neveroncementionednegligentsnowremoval.

The trialcourtdismissed thecom-plaint finding the defendants immuneunder theAct. The appellate courtreversed, finding that there can be noimmunitywhereacomplaintissilentasto negligent snow removal efforts. Id. ¶41.Amongotherthings,thedefendantsarguethat,ifupheld,thedeterminationofwhethertheimmunityappliesbecomesamatterofartfulpleadingonthepartoftheplaintiff’s counsel.The IDCgratefullyacknowledgesEdwardGrasséofBusse, Busse & Grassé, P.C. for drafting theamicus curiaebrief.



The IDC also filed an amicus brief in Schweis v. Chase Home Finance, 2015 IL App (1st) 140683, appeal allowed by 48 N.E.3d 677 (Table) (Ill. Jan. 20, 2016) (S. Ct. No. 120041). In Schweis, the trial court dismissed an action for negligent infliction of emotional distress because the plaintiff was a “direct victim” of the negligence, but suffered no physical contact. This contrasts with a “bystander” who states a cause of action for negligent infliction of emotional distress by showing that he or she was in the “zone of danger.” On appeal, the plaintiff argued that the Illinois Supreme Court abandoned the “impact rule” for bystanders and direct victims in Corgan v. Muehling, 143 Ill. 2d 296, 304 (1991). The Illinois Appellate Court First District affirmed in a 2-1 decision. Schweis, 2015 IL App (1st) 140683, ¶ 47. The dissent agreed with the plaintiff’s argument that the physical contact rule no longer exists. Id. ¶ 52 (Harris, J., dissenting). The IDC extends its gratitude to R. Sean Hocking of Craig & Craig, LLC who authored the amicus brief.

The IDC also attempted to file an amicus brief in Kakos v. Butler, No. 15 L 6691, mem. op. (Cir. Ct. Cook Cnty. Dec. 21, 2015) (S. Ct. No. 120377), where the Illinois Supreme Court will determine if legislation reducing juries from 12 persons to 6 violated the Illinois Constitu-tion. Troy Bozarth, Robert Elworth, and Katherine Jacobi drafted an excellent amicus curiae brief on behalf of the IDC. Unfortunately, the Illinois Supreme Court denied the IDC’s motion for leave. It also denied motions for leave filed on behalf of the Illinois Chamber of Commerce and the Illinois Counties Association.

The IDC filed an amicus brief in the Illinois Appellate Court First District,

in McChristian v. Brink, No. 09 L 8204 (Cir. Ct. Cook Cnty. Sep. 14, 2015), appeal allowed by No. 1-15-2674 (Ill. App. Ct. Oct. 28, 2015). In that case, defense counsel sought permission to engage in ex parte communication with a treating physician who was not named as a defendant. The defendant argued that Petrillo did not apply because the physi-cian was a corporate decision-maker of the defendant, Performance Foot & Ankle Center. The trial court ruled in favor of the defendant and later certified the case for interlocutory appeal. The IDC extends its gratitude to John Watson, J. Patrick Lee and Garth Flygare of Craig & Craig, LLC for authoring the amicus curiae brief in this case.

The IDC also filed an amicus brief in Moon v. Rhode, 2015 IL App (3d) 130613, appeal allowed by 39 N.E.3d 1004 (Table) (Ill. Sep. 30, 2015) (S. Ct. No. 119572), a medical malpractice case addressing the discovery rule in an action brought under the Wrongful Death Act. In this case, the trial court granted sum-mary judgment in favor of the defendant finding that the case was time barred. The appellate court affirmed, holding that the discovery rule does not apply to claims under the Wrongful Death Act. Justice Schmidt, writing for the majority, explained that personal injury actions were born of the common law and are susceptible to change by the judiciary. Not so, with respect to statutory actions under the Wrongful Death Act, which is a creature of the legislature.

Justice Schmidt concluded that the required “knowledge” that starts the limitations period running under the Wrongful Death Act is not knowledge that negligence occurred. Rather, under the plain language of the statute, the

death or injury starts the clock running. Accordingly, the 2-year limitations period began to run at the time of death, regardless of when plaintiff suspected negligent conduct. Moon, 2015 IL App (3d) 130613, ¶ 18. As the dissent cor-rectly noted, the majority’s ruling directly contradicts over 30 years of precedent. Id. ¶ 35 (Lytton, J., dissent-ing). The IDC gratefully acknowledges Jeffrey Hebrank, Noel Smith, Patrick Stufflebeam, Christopher Allen, and Alemayehu Ayanaw of HeplerBroom LLC for their hard work in authoring the amicus brief.

The IDC also filed an amicus in Miller v. Sarah Bush Lincoln Health Ctr., No. 11 L 43 (Cir Ct. Coles Cnty. Aug. 3, 2015) appeal as of right in No. 4-15-0728 (Ill. App. Ct. Aug. 26, 2015), an interlocutory appeal pending in the Illinois Appellate Court Fourth District. In this case, the appellate court will determine if the trial court abused its discretion by reducing a jury’s verdict in a medical malpractice case by $91,000 pursuant to 735 ILCS 5/2-1205 for medical bills as to which there was no right of recoupment. Defendant extends its gratitude to Kara L. Jones of Feirich/Mager/Green/Ryan for her hard work in authoring the amicus brief.

Decided Cases

The IDC filed an amicus brief in Fattah v. Bim, 2016 IL 119365. The issue in this case was whether the initial purchaser’s waiver of the implied war-ranty of habitability binds a subsequent purchaser of a home. On May 19, 2016, the Illinois Supreme Court filed its decision holding that the implied war-

Amicus Committee | continued


rantyofhabitabilitymaynotbeextendedto a second purchaserwhen a valid,bargained-forwaiver of thewarrantyhasbeenexecutedbetweenthebuilder-vendor and thefirst purchaser.Fattah, 2016IL119365,¶30.TheIDCgratefullyacknowledgesthehardworkofEdwardK.GrasséofBusse, Busse & Grassé, P.C., whoauthoredtheamicusbrief.

Finally,theIDCfiledanamicus briefin Richter v. Prairie Farms Dairy, Inc., 2016 IL119518. In that case, the trialcourtdismissedsome,butnotallclaimswithout prejudice, and allowed theplaintiff30daystoamend.Theplaintiffdid not amend and chose to proceed on theremainingclaim.Theplaintiffsubse-quentlyvoluntarilydismissedtheclaimand,lessthanoneyearlater,re-filedtheclaim along with the claims that had been dismissedwithoutprejudice.TheIllinoisSupreme Court rejected defendant’sattempt to create an “automatic finaljudgment”mechanism,holdingthatthecircuitcourtretainsjurisdictiontoallowtheamendedcomplainttobefiledevenafterthedeadlineforamendingthecom-plaintexpired.Richter,2016IL119518,¶28.The IDCextends its gratitude toAnnBarronofHeyl, Royster, Voelker & Allen, P.C.forherworkinauthoringtheamicusbrief.

Catherine A. CookeRobbins, Salomon & Patt, Ltd., Chicago

Property Insurance Law

About the Author

Catherine A. Cooke is a shareholder at Robbins, Salomon & Patt, Ltd. and concentrates her practice in the area of commercial litigation and creditors’ rights. She earned her undergraduate degree from Indiana University–Bloomington in 2003, and

law degree from The John Marshall Law School in 2006, where she served as Administrative Editor of The John Marshall Law Review. She is licensed to practice law in both Illinois and Indiana.

Whenmajororcatastrophicpropertydamageoccurs,itisnotuncommonforthere to be one ormore contributingfactors to the loss. It isnotdifficult toimagine the scenario where a home is damagedduringastorminvolvinghighwinds causing tree damage, sparkingelectriclineswhichcausepoweroutages,sump pump failure, and subsequentflooding.Recognizing that it is oftendifficulttoidentifythe“startingpoint”oftheloss,moststandardinsurancepoliciesnow include anticoncurrent-causationclauses.Whenananticoncurrent-causa-tionclauseappliestothefactsunderlyingan insurance claim, insurers can denycoverageifevenonecontributingcauseis an excluded event under the policy.Bozek v. Erie Ins. Grp.,2015ILApp(2d)150155,¶23.

While treatment of these clausesvaries by state, until recently Illinoisappellatecourtshadyettoweighinonthe topic.However, inBozek v. Erie Insurance Group, the Illinois Appellate CourtSecondDistrict,inacaseoffirstimpression in Illinois, upheld the ap-plicationoftheanticoncurrent-causationclause in the homeowner’s insurancepolicyatissue.Bozek,2015ILApp(2d)150155,¶4.

Underlying Facts

Afterarainstorm,theBozeks’in-groundswimmingpoolsustaineddam-

Illinois Appellate Court Addresses Anticoncurrent-Causation Clauses

for First Time

age.Id. ¶6.TheBozeks’homeowner’sinsurance policy provided $89,000 ofcoverage for the swimming pool. Id. Afterreportingtheclaim,theplaintiffs’insurancecompany,Erie,retainedathirdparty to investigate the loss. Id. The subsequentinvestigativereportreachedseveralconclusionsabouttheincident,including that on June 27, 2013, thepool“heavedoutoftheground”andthataccordingtounofficialweatherrecords,itrainedapproximately3.5inchesinthefivedayspriortotheevent,whichwasnearlytheaveragefortheentiretypicalmonthofJuly.Id. ¶ 7.Accordingtothereport,theamountofrainthatfell“canresult in saturated soils that producesignificantuplifthydrostaticpressures.”Id.The report also noted that for thepool to remain in place theweight ofthewater in thepoolmust exceed the



“upliftforces”ofthewaterpressureinthesoil.Id.However,onthedateofloss,theBozeks’ pool hadbeen emptied tocleandebriswhichmadeitsusceptibletouplift.Id.

In-groundpoolsusepressurereliefvalvestopreventupliftintheeventthatapoolisemptied,whichallowgroundwatertoenterintothepooltocounterbal-ancetheupliftofthegroundhydrostaticpressure.Id.Thereportconcludedthatthe damage was caused by groundwaterpressurepushingthepoolupwardbecausethepressurevaluefailedtofunc-tionproperly.Id.Thedamagerequiredthe pool to be replaced in its entirety and the“heaving”alsocauseddamagetotheconcreteslabaroundthepoolwhichalsowouldrequirereplacement.Id.

Erie denied coverage because thecause(s)ofdistresswereexcludedunderthepolicyterms.Thepertinentportionsofthepolicystated:

We do not pay for loss result-ing directly or indirectly from any of the following, even if other events or happenings contributed concurrently, or in sequence, to the loss:

***

3. by freezing thawing, pres-sureorweightofwaterorice,whether driven by wind or not, to a fence, pavement patio,deck,swimmingpool,founda-tion, retainingwall, bulkhead,pier,wharf[,]ordock.

***

5.***by

***

(b) mechanical breakdown,deterioration, wear and tear,

marring, inherent vice, latent defect, tree roots, rust, smog,wet or dry rot,mold, fungus,orspores;

***

9.bywaterdamage,meaning:

***

(c)waterbelowthesurfaceontheground.Thisincludeswaterwhich exerts pressure on, orflows seeps or leaks throughanypartofabuildingorotherstructure, including sidewalks,driveways, foundations, pave-ments, patios, swimming pools ordecks.

Id. ¶8(emphasisinoriginal).

that“theanticoncurrent-causationclausedictatedthat,becausethefailureofthepressure-relief valve, a covered event,preceded the increase in hydrostatic pressure, an excluded event, the lossshouldbecovered.”Id.

Insupportofthisposition,theBoze-kspointed to theuseof“insequence”andassertedthatareasonabledefinitionofthisphrasewas“subsequentto.”Id. ¶ 10. Under their interpretation, theanticoncurrent-causation clausemeantthatifacoveredcausehappenedsubse-quent toanexcludedcause,therewouldbe no coverage. Id. However, becausetheallegedcoveredcause(thefailureofthepressure-reliefvalve)happenedprior to the excluded cause (the hydrostaticpressure), the anticoncurrent-causationclausedidnotapply.Id.Theyconcluded

In doing so, the court accepted Erie’s proffered

reading of the clause that any sequence of events

involving an excluded cause precluded coverage.

The introductory sentence of theexclusionsectionquotedaboveiswhatisknownasananticoncurrent-causationclause.Aftercoveragewasdenied, theBozeksfiledacomplaintfordeclaratoryjudgmentallegingthatErieimproperlydenied coverage. Id. ¶ 9.While theyconcededthathydrostaticpressurewasan excluded cause under section 3 or9 of the exclusions, they argued thatEriedidnotestablishthatfailureofthepressure-relief vavlewas an excludedcause. Id. Specifically, they arguedthatthatthefailureofthevavledidnotqualify as an excluded “mechanicalbreakdown.” Id. TheBozeks argued

thatbecausetherewasnotanapplicableanticoncurrent-causation clause, Eriecould not deny coverage for the lossassociatedwiththecoveredfailureofthevalve,simplybecauseanexcludedcauseoccurredafterwards.Id.

On its cross-motion for summaryjudgment,Erieassertedthatevenifthecourt accepted theBozeks’ argumentthatthepressure-reliefvalvefailurewascovered, the anticoncurrent-causationclauseprecludedcoverage.Id. ¶11.Erieargued that the langue “in sequence”simplymeant “one after another,” butbecausethepolicydidnotspecifywhich


Property Insurance Law | continued

causemustcomefirstoraftertheother,any sequence of events involving anexcluded causewould preclude cover-age.Id. Thepolicylanguagewhichuses“concurrently”and“insequence”meansthat coverage is avoided whether two events occur at the same time or oneafteranother–andsolongasanexcludedcauseisinvolved,thereisnoinsurancecoverage.Id.

After analyzing numerous casesaddressing insurance policies withanticoncurrent-causation clauses andthe particular language employed, thetrialcourtgrantedsummaryjudgmentinfavorofErie.Id. ¶15.Indoingso,thecourtacceptedErie’sprofferedreadingoftheclausethatanysequenceofeventsinvolvinganexcludedcauseprecludedcoverage. Id. Because there was noquestion that hydrostatic pressurewasan excluded cause, there could be noinsurancecoverage.Id.

Issues and Applicable Standards on Appeal

The Bozeks appealed the trialcourt’s ruling, raising two issues: (1)whether the pressure-relief failurewasacoveredcause;and(2)whetherthe anticoncurrent-causation clauseprecludedcoverage.Id. ¶18.Inorderto prevail, the Bozeks needed toestablish both that Erie did not meet its burdentoshowthat thefailureof thepressure-reliefvalvewasanexcludedmechanical breakdown,making it acovered event, and also that, becausethe covered event happened first, theanticoncurrent-causation clause didnotapply todivest themofcoverage.Id. Erie, on the other hand, only had to prevailononeoftheseissuestoshowthat insurance coverage should bedeniedasamatteroflaw.Id.

Turning to the oft-cited standards,thecourtnoteditsprimaryobjectiveinconstruing contracts—including insur-ancepolicies—is toascertainandgiveeffecttotheintentionsofthepartiesasexpressed in theagreement.Pekin Ins. Co. v. Precision Dose, Inc., 2012 IL App (2d)110195, ¶31.Whenpolicy termsareclearandunambiguous,theyaretobe given their plain and ordinary mean-ings.Am. States Ins. Co. v. Koloms,177Ill.2d473,479(1997).Simplybecausepartiesdisagreeontheinterpretationofacontractdoesnotmeanitisambiguousand the court noted that itwould notstraintofindanambiguitywherenoneexists.Bozek,2015ILApp(2d)150155,¶19;U.S. Fire Ins. Co. v. Hartford Ins. Co.,312Ill.App.3d153.155(1stDist.2000).

The court emphasized that provi-sionsthatlimitorexcludecoverageareinterpretedmore liberally in favor ofthe insured and “[t]he test is notwhattheinsurerintendeditswordstomean,but what a reasonable person in theinsured’s positionwould understandthemtomean.”Bozek,2015ILApp(2d)150155,¶20(citingIns. Co. of Illinois v. Markogiannakis,188Ill.App.3d643,655(1stDist.1989)).Therefore,whenaninsurerreliesonanexclusionaryprovi-sion,itmustbeclearandfreefromdoubtthatitpreventscoverage.Cincinnati Ins. Co. v. Am. Hardware Mfrs. Ass’n,387Ill.App.3d85,108(1stDist.1008).

History of Anticoncurrent- Causation Clauses

The appellate court discussed theorigin of anticoncurrent-causationclauses,notingthatinsurancecompaniesbeganusingtheminpoliciesinresponsetoconcurrent-causationcontroversies— or incidents in which more than one

cause, one covered and one excluded,contributes to a loss.Bozek, 2015 IL App (2d) 150155, ¶ 21.Many caseshave sought to determine exactly howsubstantialagiven“casualnexus”needsto be in order to provide coverage in the absenceof specific language, and fourtypesoftestshavedeveloped.Id.

Il l inois appears to favor the“middle-ground, efficient-or-dominant-proximate-causerule”intheabsenceofcontrarypolicylanguage.Id.¶23;see, e.g., Am. Econ. Ins. Co. v. Holabird & Root,382Ill.App.3d1017,1035(1stDist. 2008). However, policiesmaythemselves determine the requisitecasual nexus, which may be morenarrowly construed. “The purpose ofanticoncurrent-causation clauses is toavoidapplicationofthegeneralrulethatthereiscoveragesolongastheefficientor dominant cause is covered.”Bozek, 2015ILApp(2d)150155,¶23.Whenan anticoncurrent-causation clause isapplied, there is nocoverageifanyoneofthecontributingcausesisanexcludedevent.Id.

The Insurance Services Office,an advisory organization, set forth anexample of a standard anticoncurrent-causationclauseinits1990homeown-ers’ property insurance form: “We donot insure for loss caused directly orindirectlybyanyofthefollowing.Suchlossisexcludedregardlessofanyothercauseoreventcontributingconcurrentlyor in anysequencetotheloss.”Id.¶23(emphasis added and internal citationsomitted).

Plaintiffs’ Arguments on Appeal

TheBozeksarguedthattheclauseintheirpolicyomittedtheword“any,”thuschangingthemeaningoftheapplicableclause.Id. ¶24.Forsakeofcomparison,


again, the Bozeks’clausestated:“Wedonotpayforlossresultingdirectlyorin-directlyfromanyofthefollowing,evenifothereventsorhappeningscontributedconcurrently,or in sequence,totheloss.”Id. (emphasis added). The appellatecourt found that theBozeks’ focus onthephrase“insequence”wasmisplaced.Id. ¶25.Erie’sargumentsfurtherexacer-batedthemisunderstandingbyfocusingontheuseof“concurrently”andstatingthat the two events, one covered and one excluded,occur at the same time or one afteranother.

Thecourtstatedthattheuseofthewords“concurrently”and“insequence”avoids coverage where two events, one coveredandoneexcluded,contribute to the lossatthesametimeoroneaftertheother.Id. Furtheranalyzingtheuseofthewords“concurrently”and“insequence”in the clause, the court concluded thatthe relevant point in time is not when the valve failed, but rather,when thefailedvalvecontributedtotheloss.Thefailedvalveandthehydrostaticpressurecontributedconcurrentlytotheloss.Id. ¶26.

The court then distinguished twocases relied uponby theBozeks, bothinvolvingwindandflooddamagefromHurricaneKatrina.Id. ¶27.Inbothcases,wind damagewas covered, but flooddamageexcluded. Id. ¶¶28,33.How- ever, in those cases, there was evidence that wind damage caused separatedamageapartfromtheflooddamagesus-tained,andtheanticoncurrent-causationclauses at issue entitled the insured tocompensation for the wind damageoccurringpriortotheflooddamage,butprecluded coverage for the subsequentflooddamage.Id. ¶¶32-33.

TheappellatecourtconcludedthatthecoveredeventintheBozeks’situationdidnotleadtoaseparateordifferentloss.

Id. ¶ 34.While theBozeks contendedthat theywereentitled tocoverage forthefailedpressure-releasevalvebecausecoverage“vested”atthattime,suchaninterpretationwouldleadtoanuntenableresultbecausethefailedvalvealonedidnotcauseanylossuntilitconvergedwiththeexcludedevent–thehydrostaticpres-surewhichupliftedthepoolandcausedthedamagetothepoolandsurroundingconcrete.Id. Therefore,becausethetwocauses contributed concurrently to theloss,theanticoncurrent-causationclause

Concluding Remarks and Takeaways

In closing, the appellate court ex-plicitlystatedthatitwaspublishingitsdecisionduetothelackofotherreporteddecisions in Illinois, and noted that it intended a narrow application of thedecisionandleftmanyissuesundecided.Id. ¶38.Whilethecourturgedanarrowapplication of the decision, the rulingupholdingapplicationoftheanticoncur-rent-causationclauseatissueisfavorable

While the court urged a narrow application of the

decision, the ruling upholding application of the

anticoncurrent-causation clause at issue is favorable

to the insurance industry.

precludedcoverage.Id.The court left the issue open for

other courts todecidewhether theuseof the phrase “in sequence” insteadof “inany sequence”would alter theresultunderdifferentfactscenarios.Id. ¶35.However,thecourtnotedthattheBozeks’ preferred interpretationwouldeffectively be a restatement of theefficient-proximate-cause rule,whichanticoncurrent-causation clauses arewrittentoavoid.Id. Lastly,theBozeksattemptedtoarguethatanticoncurrent-causation clauses should be held un-enforceable as against public policy.The appellate court determined thattheargumenthadbeenforfeitedduetoinsufficientbriefingandthecourtwouldnottakethecomplexissueupsua sponte.Id. ¶37.

to the insurance industry.Though theappellate court did not fully analyzethe public policy attack, it did notethat themajority of jurisdictions haverejectedsuchchallenges.Id. ¶37.Thecase demonstrates that the placement, use,oromissionofevenoneword—inthis case, “any”—potentially leads todifferent interpretations andoutcomes.However,asthefirst-publisheddecisionin Illinois on anticoncurrent-causationclauses,theprecedentisapositiveonefortheinsurancedefensebar.


Roger R. Clayton, Mark D. Hansen and J. Matthew ThompsonHeyl, Royster, Voelker & Allen, P.C., Peoria

Health Law About the Authors

Roger R. Clayton is a partner in the Peoria office of Heyl, Royster, Voelker & Allen, P.C., where he chairs the firm’s health-care practice group. He also regularly defends physicians and hospitals in medical malpractice litiga-

tion. Mr. Clayton is a frequent national speaker on healthcare issues, medical malpractice, and risk prevention. He received his undergraduate degree from Bradley University and law degree from Southern Illinois University in 1978. He is a member of the Illinois Association of Defense Trial Counsel (IDC), the Illinois State Bar Asso-ciation, past president of the Abraham Lincoln Inn of Court, president and board member of the Illinois Association of Healthcare Attorneys, and past president and board member of the Illinois Society of Healthcare Risk Management. He co-authored the Chapter on Trials in the IICLE Medical Malpractice Handbook.

J. Matthew Thompson is an associate in the Peoria office of Heyl, Royster, Voelker & Allen, P.C. He practices primarily in the area of general tort de-fense. He received his B.S. in Accounting from

Culver-Stockton College in 2005 and his J.D. cum laude from Southern Illinois University School of Law in 2008.

In a case of first impression, theappellatecourt recentlyconsidered theimpact of a patient’s inability to reador speak English on thewell-settledprinciples of apparent agency claims.Mizyed v. Palos Cmty. Hosp., 2016 IL App(1st)142790.Inapositiveoutcome,the court found that a hospital has nodutytodetermineapatient’seducationorabilitytounderstandEnglish-languageconsentforms,andhasnodutytoensurethe patient subjectively understands aconsenthesigns.Mizyed, 2016 IL App (1st),142790,¶¶51-52.Ifrecenttrendsconcerning languageuse in theUnitedStates continue, this decision couldbe applied in a significant number offuturecases,bothinandoutoftheap-parentagencyarena.Therefore,defensecounselmaybewellservedtofamiliarizethemselveswiththisimportantdecision.

Background

In January 2009, the plaintiffwassent emergently to PalosCommunityHospitalforcardiacissues.Id.¶4.Theplaintiffwas a nativeArabic speaker,whospokelimitedEnglishandcouldnotreadorwriteineitherArabicorEnglish.He testified to relying upon his adultchildrentoreadandtranslatedocumentsforhim.Id.¶3.

Theplaintiff’sdaughter,Nadera,andotherfamilymembersvisitedtheplaintiffintheemergencyroomandattimesdur-

Mark D. Hansen is a part-ner in the Peoria office of Heyl, Royster, Voelker & Allen, P.C. He has been involved in the defense of cases involving cata-strophic injury, including the defense of complex

cases in the areas of medical malpractice, prod-ucts liability, and professional liability. Mark has defended doctors, nurses, hospitals, clinics, dentists, and nursing homes in healthcare mal-practice cases. He received his undergraduate degree from Northern Illinois University and law degree from University of Illinois College of Law. Mark is a member of the Illinois Association of Defense Trial Counsel and is a former co-chair of the Young Lawyers Committee, former ex officio member of the Board of Directors, and has served as chair for various seminars hosted by the IDC. He is also a member of the Illinois Society of Healthcare Risk Management, the Abraham Lincoln American Inn of Court, and the Defense Research Institute.

Appellate Court Addresses Issue of First Impression Concerning Apparent

Agency, Consent Forms and a Non-English Speaking Patient

ingthesubsequentadmission.Id.¶¶5,9,13.Overthecourseofhisemergencyroomvisit and admission, the plaintiffexecuted five hospital consent forms,allofwhichwerewritteninEnglish.Id. ¶6.Whiletheevidencewassomewhatconflicting as towhetherNaderawaspresent for the signingof someof thefive consents, itwas undisputed thatNaderawaspresentwiththeplaintiffforthesigningofothers.Id.¶¶9,11-13,16.

Eachoftheconsentssignedbytheplaintiffcontainedaparagraphexplicitlydisclaiming any employment relation-ship between the hospital and its staffphysicians.Specifically,aparagraphofeachconsentprovided:

Iunderstandthatallphysiciansproviding services to me … are independentmedical staffphysicians and not employees oragentsofPalosCommunityHospital.

Id.¶¶8,11-13,15.Asked at his depositionwhether

Nadera explained or went over the consentswithhimbeforehesigned,theplaintiff testified, “Yes. She toldme,‘Dad,signthepaperbecausetheywantto do surgery for you,’ and I trustmydaughter. So I signed the papers.” Id. ¶6.Theplaintifffurthertestified,“Idon’tspeakEnglish100percent,andIdon’tknowwhatthedoctorsweretellingme.I



basedeverythinguponwhatNaderatoldmeandbaseduponthatIsigned.”Id.

With regard to the consents sheassisted her father in signing,Naderatestifiedthatshedidnotreadthedocu-mentsentirely,butstillencouragedtheplaintiff to sign. Id. ¶¶ 9, 11.Nadera explained that she “didnot exactlygoline to line” through the consents. Id. ¶11.Nevertheless,sheansweredques-tionsherfatheraskedabouttheconsents,and encouraged him to sign them. Id. ¶¶9,11,13.

Upon admission, the plaintiff didnothaveaphysicianwhowasonstaffatthehospital.Id.¶26.Dr.Kanashiro,an employeeof a separate corporationknownasCardiologyInternalMedicineAssociateswhohadstaffprivilegesatthehospital,wasoncallfortheemergencydepartmentatthattime.Therefore,shebecame the plaintiff’s attendingphysi-cian.Id.Dr.Kanashirotestifiedthatsheexercised her own independent train-ing, skill and judgment in treating theplaintiff,andhercarewasnotcontrolledordirectedbythehospital. Id.¶27.Dr.Kanashiro never told the plaintiff shewasanemployeeoragentofthehospital,butalsotestifiedthatshedidnottelltheplaintiffshewasemployedbyCardiol-ogy InternalMedicineAssociates.Herbadge simply indicated that she was a staff physician at the hospital, not anemployee. Id.Dr.Kanashiro testifiedthattheplaintiffspokeEnglishwithher,and they did not need an interpreter to communicate.Id.

Duringhisadmissiontothehospital,the plaintiff developed an infectionresultingfromaPICClineinsertion.Id. ¶17.Oneofthefiveconsentssignedbythe plaintiffwas for placement of thePICC line, and that consent contained the same language disclaiming anyemploymentrelationshipbetweenanyof

theplaintiff’sphysiciansandthehospital.Id.¶15.

Dr.Kanashiro confirmed the pres-ence of infection fromblood cultures.She then consultedwith an infectiousdiseasephysician to address the infec-tion. Id. ¶ 17.The plaintiffwas givenvancomycin, and was later discharged with a prescription for outpatient anti-biotics. Id.¶¶17-18.Theplaintiffwaslater readmitted to a separate hospital forfurthertreatmentoftheinfection.Id. ¶¶19-20.

Thereafter, the plaintiff filed amedical malpractice action against the hospital, alleging that agents or employ-eesofthehospitalwerenegligentintheirtreatmentbyfailingtoprevent,recognizeandtreathisinfectionandbydischarginghimprematurely.Id.¶21.Afteraseriesof amended complaints, the plaintifffinally alleged the hospitalwas liableforthenegligentactsofDr.Kanashiroandotherphysicianswhowereactualorapparentagentsofthehospital.Id.¶¶21-23.Onthehospital’smotiontodismiss,the trialcourtdismissedallallegationsofnegligenceagainstthehospitalexceptthosebasedontheallegednegligenceofDr.Kanashiro.Id.¶25.

Afterinitialdiscovery,thehospitalmoved for summary judgment on thesoledisputedissueofapparentagency.Id.¶28.Thehospitalarguedthat,basedupontheclearlanguageoftheconsents,ithadnotheldoutDr.Kanashiroasitsagentoremployee.Similarly,itarguedthatneitheritnorDr.Kanashiroactedinamanner thatwouldleadareasonablepersontobelieveDr.Kanashirowasitsagentoremployee,andtheplaintiffcouldnot have reasonably relied upon anyholdingout. Id.Theplaintiffcounteredby essentially arguing that thesewerequestionsoffactforajury.Id.¶29.Thetrialcourtgrantedthehospital’smotion

for summary judgment, and an appealfollowed.Id.¶¶31-32.

General Law Applicable to Apparent Agency Claims

Before considering the uniquefactsofMizyed,theappellatecourtfirstdiscussedthebackgroundandapplicablelaw for apparent agency claims.TheIllinoisSupremeCourtfirstappliedtheapparent agency doctrine to a medical malpractice case in Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511(1993).There, the supreme court heldthat a plaintiffmust plead and provethree elements in order to hold a hospital vicariously liable under the apparentagencydoctrine,including:

(1) the hospital, or its agent,acted in amanner thatwouldlead a reasonable person to conclude that the individualwho was alleged to be negligent wasanemployeeoragentofthehospital; (2)where theactsofthe agent create the appearance of authority, theplaintiffmustalso prove that the hospital had knowledgeofandacquiescedinthem;and(3)theplaintiffactedin reliance upon the conductof the hospital or its agent,consistent with ordinary care andprudence.

Gilbert,156Ill.2dat525.The first two factors, typically

groupedtogetherbytheappellatecourts,are referred to jointly as the “holdingout”factor,andthefocusiswhetherthepatientkneworshouldhaveknownthephysicianisanindependentcontractor.Lamb-Rosenfeldt v. Burke Med. Group,


Health Law | continued

Ltd., 2012 ILApp (1st) 101558, ¶ 26.If a patient has actual or constructiveknowledgethataphysicianisaninde-pendent contractor, the hospital cannot bevicariouslyliable.Steele v. Provena Hosps.,2013ILApp(3d)110374,¶138.Putanotherway,ifapatient“isinsomemannerputonnoticeoftheindependentstatusoftheprofessionalswithwhomhemightbeexpectedtocomeintocontact,”thehospitalmustprevail.York v. Rush-Presbyterian-St. Luke’s Med. Ctr., 222 Ill.2d147,182(2006).

An important factor to considerin determiningwhether the plaintiffcan prove the holding out element iswhether the plaintiff signed a consentformthatclearlydisclaimsanemploy-ment relationship between the hospital andphysician.Insuchcases,aplaintifftypicallycannotproveareasonablebeliefthat the physician was an employee or agentofthehospital.Lamb-Rosenfeldt, 2012ILApp(1st)101558,¶27.Goingfurther, the IllinoisAppellate CourtThirdDistrict has held that “consentsare almost conclusive in determiningwhether a hospital should be heldliableforthemedicalnegligenceofanindependent contractor.”Steele, 2013ILApp (3d) 110374, ¶ 131 (internalcitationomitted).On theotherhand,asigned consent formwill not precludeanapparentagencyclaimiftheconsentis ambiguous or confusing regardingwhethertheplaintiff’streatingphysicianis a hospital employee or independent contractor.York,222Ill.2dat196-97;Schroeder v. Northwest Cmty. Hosp.,371Ill.App.3d584,593-94(1stDist.2006);Spiegelman v. Victory Mem. Hosp.,392Ill.App.3d826,837(1stDist.2009).

Issue of First Impression: English-Language Consent Forms and a

Non-English Speaking Patient

Mizyed,however,presenteduniquefactsnotdiscussedinanyofthecourt’sprecedent–theplaintiff’s limitedabilityto speakEnglish and inability to readEnglishoranyotherlanguage.Mizyed, 2016 ILApp (1st) 142790, ¶¶ 47, 50.Based upon this, the plaintiff arguedthat the hospital could not rely upontheEnglish-language consent forms tosupport summary judgment. Id. The plaintiffassertedthathedidnotreceivenoticeoforconsenttothetermsoftheconsentformshesigned,andinstead,thehospitalwasrequiredtoensuretheplain-tiff actually understood the terms andlegalimplicationsoftheconsentforms.Id.¶¶48-49.Accordingtotheplaintiff,thehospitalwasrequiredtoprovideoralArabictranslationoftheconsentforms.Id.¶49.Thecourt,however,rejectedtheplaintiff’s arguments,finding that theyconflicted “withwell-settled precedentregarding: (1) the requisite notice suf-ficienttodefeatthe‘holdingout’elementofanapparentagencyclaim;and(2)theeffectofsigningadocument,evenwherethe signing party claims not to have read orunderstoodit.”Id.¶50.

First,thecourtrejectedtheplaintiff’sargumentthatthehospitalwasrequiredto provide him actual notice of theterms of the consent forms so that hesubjectivelyunderstoodthem.Id.¶51.Itfoundthat“[r]atherthanrequiringproofofthepatient’ssubjectiveunderstanding,ourcourthasexplainedthatifaplaintiffis ‘placed on noticeoftheindependentcontractor status of [her] doctors, itwouldbeunreasonableofhertoassumethat theywereemployedbydefendantand, thus, she could not sustain anapparent agency claim.’” Id. (quotingWallace v. Alexian Bros. Med. Ctr., 389 Ill.App. 3d1081, 1087 (1stDist.

2009)(emphasisinoriginalandinternalquotationmarksomitted)).Rejectinganyrequirementthattheplaintiffsubjectivelyunderstandtheconsent,thecourtfurtherexplainedthat“‘ifapatienthasactualor constructive knowledge that the doctor is an independent contractor, the hospital isnotvicariouslyliable.’”Mizyed, 2016 ILApp (1st) 142790, ¶ 51 (quotingSteele,2013ILApp(3d)110374,¶138)(emphasisinoriginal).

Therefore,thehospitalhadnodutytodeterminetheplaintiff’seducationorensure that he understood theEnglishlanguageconsentforms.Mizyed, 2016 IL App(1st)142790,¶52.Allthehospitalhad to showwas that theplaintiffwas“placed on notice” that his physicianswere not hospital employees. Id. In finding that thehospitalprovidedsuchnotice,thecourtpointedtotheinvolve-mentoftheplaintiff’sdaughter,Nadera,whoassistedtheplaintiffinreviewingtheconsent formsandencouraginghim tosign.Id.AlthoughNaderaclaimednottohavereadtheconsentformsentirely,thehospital“hadnoreasontodoubtthatshehadfullyreadandunderstoodtheformsand accurately communicated them toher father before he signed, indicatinghisunderstandingandconsent.”Id. The court also pointed out that neither theplaintiffnorNaderaaskedforclarifica-tionastothetermsoftheconsentforms.Id.Underthesecircumstances,thecourtfound,“thehospitalcould relyon [theplaintiff’s]signingofthedocumentsasevidence of his understanding of theirterms.”Id.

Second, the court found that theplaintiff’s argument violated the long-standing principle that a person is chargedwithknowledgeofthecontentsofadocumenthesigns,whetherornotheactuallyreadthedocument.Id.¶54.Upholding this principle in Mizyed, the


courtpointedtoIllinoisSupremeCourtprecedent holding that “illiteracydoesnot exempt a party from the terms ofthedocumenthesigns.”Id.¶55(citingShulman v. Moser, 284 Ill. 134, 140(1918)).Thus,thecourtconcludedthat“althoughhemaynothavebeenabletoreadtheconsentforms,hisdecisiontosignthemlegallysignifiesthathe‘hadanopportunitytobecomefamiliarwithandcomprehend’their terms.”Mizyed, 2016ILApp(1st)142790,¶55(quotingHawkins v. Capital Fitness, Inc., 2015 IL App(1st)133716,¶14).

In sum, the court held that theplaintiff’s “inability to read or speakEnglishdoesnotunderminetheeffectof the consent forms that he signed”and “conclude[d] that the explicitlanguage of those consent forms puthim on notice that his treating physi-cianswerenot[thehospital’s]agentsor employees, defeating his apparentagencyclaim.”Mizyed, 2016 IL App (1st)142790,¶57.

Significance in Light of Population Trends

Theimportanceofthecourt’sdeci-sion in Mizyedisonlylikelytogrowincoming years.We all understand thatthe United States is becoming more linguistically diverse, but some recentstatisticsemphasizewhatweexperiencedaytoday.AccordingtotheU.S.CensusBureau,thenumberofpeoplethatspokea languageother thanEnglishathomegrewfromabout23millionin1980tomorethan59millionby2010.CamilleRyan,Dep’tofCommerce,LanguageUseintheUnitedStates:2011,p.7,Table 2 (U.S.CensusBureau, 2013),https://www.census.gov/prod/2013pubs/acs-22.pdf.During that timeframe, thetotalpopulation increasedbyabout38

percent,whilethenumberofpeoplethatspokealanguageotherthanEnglishathomeincreasedbymorethan158per-cent.Id. By 2011, more than 60 million peopleintheU.S.spokealanguageotherthanEnglishathome.Id.atp.3,Table1.Ofthose60millionpeople,over13millioncouldnotspeakEnglishwellorcouldnotspeakEnglishatall.Id. Similar statisticswerereportedinIllinoisasof2011,wheremorethan2.7millionpeoplespokealanguageotherthanEnglishathome,ofwhichabout600,000people(or22percent)couldnotspeakEnglishwellorcouldnotspeakEnglishatall.Id. at p.11,Table4.

Some may point to these statistics to arguethatcourtsinsimilarcasesshouldrequirehospitalstoprovideactualnoticetopatientsthroughconsentformswrit-ten in theirnativelanguageor throughinterpretersreadingtheEnglish-languageconsent form.This, however, wouldpresent awhole host of problems forhospitals, which demonstrates why the decision in Mizyedissosignificant.First,producing consent forms in languagesotherthanEnglishmaybesimpleenoughifonlyahandfulofotherlanguageswerespokenintheU.S.However,accordingtotheU.S.CensusBureau,atleast153languages are spoken in theChicagometropolitanareaalone.U.S.Dep’tofCommerce, Census Bureau Reports at Least 350 Languages Spoken in U.S. Homes, (Nov. 3, 2015), available at https://www.census.gov/newsroom/press-releases/2015/cb15-185.html. Iseachhospitaltrulyexpectedtoprepareconsents and other forms provided topatientsinover150languages?Notably,thiswouldnotevenaddressanotherissueraised in Mizyed, where the patient is illiterate.

Furthermore, how is a hospitalexpected to test a patient’s ability to

read or speak English?The hospitalobviously cannot administer an exam,so the only logicalway for a hospitaltobecomeawareofthisisthroughthepatientorpatient’sfamily.Absentthat,thehospitalhasnorealwayofknowing.In such cases, it is reasonable for thehospitaltorelyuponafamilymember,likethedaughterinMizyed, to interpret theconsentform.Incaseswhereapatientasksforaninterpreterorasksaquestionabouttheconsent,itmaymakesenseforthe hospital to attempt to accommodate the patient (assuming the hospital canfindaninterpreterforthegivenlanguagewithinareasonabletimeframeinlightofthepatient’scondition).

However,itwouldlikelybeimpos-sible for a hospital to knowwhethera patient subjectively understands thetermsof a consent form, as advocatedbytheplaintiffinMizyed.Theonlythinga hospital can logically do is provide a clearly-worded consent form.Beyondthat, the onusmust be on the plaintifftorequestanexplanationifhedoesnotunderstandagiventerm.

Conclusion

The Mizyeddecisionisabigwinforhospitals and other institutions facingsimilarissueswithconsentforms.Ifthecourt had adopted the plaintiff’s argu-ments,itwouldhavecreatedsignificantproblems for hospitals andhealth careproviders,manyofwhichwouldhaveno logical solution.Defense counselshouldcontinuetoadvocateforsimilarinterpretationsinothercourtsandcaseswithfactuallysimilarscenarios.

http://www.census.gov/prod

http://www.census.gov/newsroom


David A. Perkins and Melissa N. SchoenbeinHeyl, Royster, Voelker & Allen, P.C., Peoria

About the Authors

Civil Rights Update

Anthony Zimmerman, owner and president of Premier Forest Products,wasarrestedforcriminaltrespassafterlaw enforcement officers found himoperatingalargeconstructionmachineand removing trees from property inCarroll County, Illinois. Zimmermanclaimed he had a right to harvest the trees underatimberdeedandsuedtheofficersforaviolationofhiscivilrightsunder42U.S.C.§1983.

This article takes a close look atthe qualified immunity doctrine andthe protection it provides officerswhomakewell-informeddecisionsasexplainedbytheCourtofAppealsfortheSeventhCircuitinitsrecentdecisionin Zimmerman v. Doran,807F.3d178(7thCir.2015).

Factual Background

Premier Forest Products enteredinto a contract with Raymond Cichon, aCarrollCountylandowner,toharvesttimber on his property.The contract,titled“TimberSaleContractandDeedtoTimber,” grantedPremier access tothepropertytoharvestparticulartrees.Zimmerman,807F.3dat180.

Premier recorded the contract with CarrollCounty.Butsoonthereafter,therelationship between the contracting partiesbegantodeteriorateafterCichonlearned Premier was harvesting trees from his neighbors’ property and thetownship’s right ofway.Cichon alsoworriedPremier’sequipmentwasdam-agingthegroundduetoheavyrainfall.Due tohisconcerns,Cichoncontacted

David A. Perkins is a partner at Heyl, Royster, Voelker & Allen, P.C. Mr. Perkins concentrates his practice in the areas of civil rights, municipal li-ability, first party property claims, and general tort litigation. He has spoken on a wide variety of sub-

jects, including: civil rights liability, municipal liability, the investigation of fire losses, and first-party property claims. He is a member of the Peoria County, Illinois State, and American Bar Associations and the Illinois Association of Defense Trial Counsel.

Melissa N. Schoenbein is an associate at Heyl, Royster, Voelker & Allen, P.C. In addition to prac-ticing general tort litiga-tion in state and federal courts, she concentrates her work on appellate law in the Seventh Circuit and Illinois appellate courts.

Ms. Schoenbein received her undergraduate degree from Bradley University, summa cum laude, in 2010 and her law degree, cum laude, from Southern Illinois University School of Law in 2013. She clerked for the Honorable Judge Michael M. Mihm in the United States District Court for the Central District of Illinois.

Officers Sued for False Arrest after Arresting Company President

hisattorneywhosentPremiera“ceaseanddesist”letter.Id. at180.

Cichon also contacted the Carroll CountySheriff’sOfficeandaskedthemto help halt the logging operation.Hetold theCarrollCountydispatcher thathe retained a logger to do someworkon his land, but the logger had takenmore timber thanhewas supposed to.Hefurtheradvisedthedispatcherthathehired an attorney who served a cease and desist letter on the logger, and that the loggerwas“pullinginthererightnowinthedarknesstoloadupsometrees.”Id. at 180-81.Heaskedthedispatchertosendanofficertothepropertyrightaway.ThedeputywhoarrivedatCichon’spropertydirectedPremier’semployeestounloadthelogs.

Thereafter, Cichon andAnthonyZimmerman, the president and owner ofPremier,exchangedheatedtextmes-sages.CichontoldZimmermantostopworkonthepropertyuntilmatterscouldberesolved.CichontoldZimmermanthatifPremierreturnedtohispropertythathewouldcallthepolicefortrespassing.Zimmerman ignoredCichon’swarningandhadhiscrewreturntothepropertyto load the timber and transport it to the mill.Id. at181.

WhenZimmermanreturned,CichoncalledtheCarrollCountySheriffasecondtime.ChiefDeputyKennethSandyandDeputyRyanKloeppingrespondedtohiscallandarrivedatCichon’spropertytofindtimber-cuttingoperationsunderway.Zimmerman showed the deputies thecontract granting Premier the right to harvest timber and informed themhe

had not been served with a cease and desistorder.Id.

Kloepping called Sheriff JeffreyDoran and theCarrollCounty State’sAttorneyanddiscussedhowtoproceed.BothDoranandtheState’sAttorneyad-visedthatifCichonwantedZimmermantoleave,hewouldhavetocomplyandthenpursuealawsuitagainstCichonforbreachofcontract.TheState’sAttorneytoldKloeppinghecouldarrestZimmer-manforcriminaltrespassifherefusedtoleavethepropertyorreturnedagain.Id.

AfterZimmermanlefttheproperty,Kloepping investigated the situationfurther.He askedCichon to send hima copy of the cease and desist order



andnoticedithadnotbeenserved.HethenspokewithCichon’sattorneywhoinformedhimthathehadnot receivedareturnreceiptshowingdeliveryoftheceaseanddesistletter.Cichon’sattorneysaid hewas in the process of filing alawsuitinfederalcourtagainstPremierbecauseittooknumeroustreesitdidnothavepermissiontoharvest.Id.

About a day later, ChiefDeputySandyreceivedacallfromZimmermanwhostatedthathewasbackonCichon’sproperty cuttingwood. Zimmermantold Sandy he had a right to fulfillthecontract,butSandy informedhimthathewouldbearrestedforcriminaltrespass.Deputies Sandy andKloep-ping and Detective Rannow went to Cichon’s propertywhere they foundZimmerman removing trees with a large machineandarrestedhimforcriminaltrespass.Id.

The Section 1983 Claim

Anthony Zimmerman and Premier ForestProductsfiledacomplaintunder42U.S.C.§ 1983againstSheriffJeffreyDoran,ChiefDeputyKenneth Sandy,DeputyRyanKloepping,andDetectiveMichaelRannowoftheCarrollCountySheriff’sOffice. Plaintiffs alleged aviolationof theFourthandFourteenthAmendments due to an alleged falsearrest and deprivation of propertywithoutdueprocess.Thedistrictcourtgranted summary judgment in favor

of defendants and held that they hadprobable cause to arrest Zimmerman,wereentitledtoqualifiedimmunity,anddidnotviolateplaintiffs’substantivedueprocessrights.Id. at182.

The Court of Appeals’ Ruling

Plaintiffs appealed the decision totheCourt ofAppeals for the SeventhCircuitarguingthatnoreasonableofficercouldhavebelievedtherewasprobablecausetoarrestZimmermanbecausethetimberdeedmadehimthe“owner”oftheproperty.Inaddition,plaintiffsarguedthedeputieslackedprobablecausebecausetheyfailedtoreadthetimberdeedpriortoZimmerman’sarrest.Id. at183.

Plaintiffsalsoargued,basedontwoNorthCarolinacases,thatapossessorofa timber deed has a legal right to be on the landunderthecontract,buttheSeventhCircuit found these cases insufficient.UnderIllinoislaw,anindividualcanbeguilty of criminal trespass, even if theinitial entrywas lawful, if the personrefusestoleavethepropertyafterreceiv-ingnoticefromtheownertodepart.Id. (citingPeople v. Kraft,277Ill.App.3d221,225(1stDist.1995)).

TheSeventhCircuitexplainedthatunderthedoctrineofqualifiedimmunity,officialsareshieldedfromcivilliabilityiftheir“conductdoesnotviolateclearlyestablished statutory or constitutionalrightsofwhichareasonablepersonwouldhaveknown.”Zimmerman,807F.3dat

182.“Arightisclearlyestablishedifitissufficientlyclearthatanyreasonableofficialwouldunderstandthathisorheractionsviolatethatright.”Id.

The court noted that Zimmermanfailed to identify any factually similarcasethatwouldhavealertedtheofficersthat they lacked probable cause forZimmerman’sarrest. Inaddition,Zim-merman provided no case law setting forththerightsofapropertyownerandtherightsofapossessorofatimberdeed.Id. at182-83.

Under Illinois law, a person commits criminal trespass if a person “entersuponthelandofanother,afterreceiving,priortoentry,noticefromtheowner... that the entry is forbidden or remainsuponthelandofanother,afterreceivingnotice from the owner . . . to depart.”Id. at183(citing720ILCS5/21-3(a)).Zimmerman received notice to depart frombothCichonandthedeputies,and,despiteclearinstructionstodepart,Zim-mermanchosetoremainontheproperty.This situation fit squarelywithin theparameters of the criminal trespassstatute.Zimmerman,807F.3dat183.

Furthermore, the court noted thesteps theCarrollCountydeputies tookto investigate the situation, includingcontactingtheState’sAttorneyforadviceaboutwhether Zimmerman’s actionsconstituted criminal trespass. It recog-nizedthat“[c]onsultingaprosecutormaynot give an officer absolute immunityfrombeingsued for falsearrest,but itgoesfartoestablishqualifiedimmunity.Otherwise the incentive for officers toconsultprosecutors—avaluablescreenagainst false arrest—would be greatlydiminished.” Id. (quotingFleming v. Livingston Cnty., Ill., 674 F.3d 874,881(7thCir.2012)(quotingKijonka v. Seitzinger,363F.3d645,648(7thCir.2004))).

The Seventh Circuit explained that under the doctrine of qualified immunity, officials are shielded from

civil liability if their “conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.”


Civil Rights Update | continued

Inaddition, thecourtheld that thedistrict court did not err in grantingsummary judgment to defendants forplaintiffs’FourteenthAmendmentclaim.Theofficers’actionsdidnot shock theconscience, especially in light of therepeatedwarningsfromboththedeputiesandCichontoleavetheproperty.Zim-merman,807F.3dat184(citingRemer v. Burlington Area Sch. Dist.,286F.3d1007,1013(7thCir.2002)(recognizingthatanabuseofpowerisarbitraryifitshockstheconscience)).

Conclusion

Inthiscase,oneofthereasonswhytheofficerswereprotectedbyqualifiedimmunitywasbecauseno Illinois caselaw existed thatwould have put themon notice that a timber deed provided unbridledaccesstoproperty.Practitionersshouldkeepinmindthatlawenforcementofficersareexpectedtokeepabreastofdevelopmentsinthecaselaw.Hadtherebeen an Illinois decision that provided anoutcomesimilartotheNorthCarolinadecisionsplaintiffs cited, the results ofthiscasecouldhavebeendifferent.

Determiningwhetherprobablecauseexisted foranarrest isa fact intensiveinquiry.Eachsituation isdifferent,butthe deputies made a well-informeddecisioninthiscase.Forexample,theyinvestigatedthesituationbyvisitingthepropertyandtalkingwithbothparties.

Additionally, and perhaps most importantly,theycontactedtheirsuperiorandtheState’sAttorneyforadvicepriortomakinganarrest.Theirinvestigationwasthorough,andtheirdecisiontoarrestZimmerman certainly was not made in haste.As a result, theSeventhCircuitfoundtheyhadprobablecausetoarrestZimmerman andwere shielded fromcivilliabilitybythequalifiedimmunitydoctrine.

Feature Article

The IllinoisAppellateCourt FifthDistrict,Workers’CompensationCom-missionDivision,recentlyissuedaRule23unpublished decision in aworkers’compensationcasewhichraisedasignifi-cantnumberofquestions.Heyl, Royster, Voelker & Allen v. Ill. Workers’ Comp. Comm’n,2016ILApp(5th)140480WC-U.Thecaseinvolvedclaimedrepetitivetrauma injuries.The court examinedwhether the alleged “manifestationdate”oftherepetitivetraumaclaimwasappropriate, and consequently,whetherthe claimantprovided timelynoticeofthe allegedwork-related injury to theemployer.InHeyl, Royster, the appellate courtheldthattheclaimant’slastdayofworkwas an appropriatemanifestationdate for her repetitive trauma claimdespite the claimantnothaving soughtmedicaltreatmentatthattime.

Inorder to fullyappreciate theap-pellatecourt’sholding,itisnecessarytoexaminethehistoryoftherulingsfromtheIllinoisAppellateCourtandIllinoisSupremeCourtontheissuesofmanifes-tationdates in repetitive traumaclaimsfiledwiththeIllinoisWorkers’Compen-sationCommission.Thesupremecourtfirst allowed repetitive traumacases in1987.Peoria Cnty. Belwood Nursing Home v. Indus. Comm’n,115Ill.2d524(1987).InPeoria County Belwood, the claimant alleged her injury occurredOctober 5, 1976, and theWorkers’Compensation Commission Arbitrator amended the claimant’s application toreflect thedateof injury asOctober4,1976,whichwaswhentheclaimanttesti-fiedsheexperiencedsymptomsatwork.

About the Author

R. Mark CosiminiRusin & Maciorowski, Ltd., Champaign

R. Mark Cosimini is a partner in Rusin & Maciorowski, Ltd.’s Workers’ Compensation De-partment. He has been with the firm since 1997 and is the managing partner in the firm’s Champaign office. Mr. Cosimini is currently serving

as the co-chair of the Workers’ Compensation Committee for the IDC and has served on the Workers’ Compensation Section Council for the ISBA. He has lectured at legal seminars and he frequently speaks with employers on issues relating to Workers’ Compensation matters.

Manifestation Dates: The Moving Target of Repetitive Trauma Cases

TheOctober5,1976datewaswhentheclaimantconsultedaphysicianregardinghersymptoms.

Theclaimant’semployerarguedthatbecausetherewasnospecific“accident,”the claim was barred by the three year statuteoflimitation.Initsdecision,thecourtexplainedthepurposeoftheWork-ers’CompensationAct.TheActwasin-tendedtoprovidefinancialprotectionforinjuredworkersregardlessofashowingofnegligenceorcontributorynegligencewhile precluding the employee fromcommonlawtortremedies.Tothatend,IllinoiscourtshaveconsistentlyheldthattheActshouldbeliberallyconstruedtoaccomplishitspurposeandobjects.

The supreme court further statedthat requiring the complete collapseofaphysicalstructureinacaselikePeoria County Belwoodwouldnotbebeneficialtotheemployeeortheemployerbecauseitmight force employees needing theprotectionoftheActtopushtheirbodiestoaprecisemomentofcollapse.TheAct



providesprotectionandbenefits for anemployee’swork-related injuries evenwhentheyaregradual.Itisnotlimitedtosuddenandcompletelydisablinginjuries.

In deciding that repetitive traumacaseswerecompensableundertheWork-ers’CompensationAct,thesupremecourtdefined“accidentalinjury”byreferringtoarulepropoundedbyProfessorLarsoninhistreatiseonWorkers’Compensation.1B A.Larson,Workmen’sCompensa-tionLaw § 39.50 (1985). ProfessorLarson defined the date of injury in arepetitive traumacompensationcaseasthedateonwhichtheinjury“manifestsitself.”“Manifestsitself”meansthedateonwhichboththefactoftheinjuryandthe causal relationship of the injury totheclaimant’semploymentwouldhavebecome plainly apparent to a reasonable person.

The supreme court concluded thatthe claimant in Peoria County Belwood experiencedsymptomsOctober4,1976,andsoughtmedicaltreatmentthefollow-ingday.October4,1976wasthelastdaytheclaimantworkedbeforethefactofherinjury and its causal connection toheremployment became apparent to her, and itwastheappropriatemanifestationdate.

Baseduponthecourt’sdefinitionofmanifestationdate,itseemsasthoughthedate when the claimant saw her doctor andfirstlearnedofthecausalrelationshipbetweenherinjuryandheremploymentwouldhavebeenthemanifestationdate.However, the supreme court’s holdingsuggests the last dayofworkbefore aclaimantlearnsofaconnectionbetweenherconditionandheremploymentshouldbeutilizedasthemanifestationdateinarepetitivetraumacase.

In 1988, the year following thePeoria County Belwood decision, the In-dustrialCommissionDivisionoftheap-pellatecourtheldthe“factofinjury”wasnotsynonymouswith“factofdiscovery.”

Oscar Mayer & Co. v. Indus. Comm’n, 176 Ill.App. 3d 607 (4thDist. 1988).Thecourt inOscar Mayer explained it wasnotconstrainedtorequireaclaimanttofixthedateofaccidentasthedatetheclaimantbecameawareof thephysicalcondition,presumably throughmedicalconsultation, and its clear relationshiptotheemployment.Sucharequirementwould be unrealistic andunwarranted.Thecourtfurtherexplaineditcouldnotprejudiceaworkerwhofaithfullyworksuntil there isanactualbreakdownofaphysicalstructure.

In Oscar Mayer,theappellatecourtheld the claimant’s last day ofworkbeforeundergoingsurgeryforthework-related condition was an appropriate manifestation date. It declined to holdthat themanifestation datewaswhentheclaimantknewofhisinjuriesandtherelationship tohis employment. Morethan45dayselapsedbetween the timethe claimant knew his injuries werecausally connected to his employmentand the timeheprovidednoticeofhiscondition to his employer.His claimwouldthereforehavebeenbarredbytheWorkers’CompensationAct.

Theappellatecourtconsideredtwoimportant issues in determining theappropriatemanifestation date. First,thecourtcommenteditwasmindfulthatthe date of accident is significant forfixing the legal relationships betweentheparties.Thisincludeswhetherthereis an employer/employee relationship, whether the employee provided timely noticeoftheallegeddateofaccident,andwhethertheApplicationforAdjustmentofClaimwasfiledwithinthestatuteoflimitationsperiod.

Second,thecourtmadeitclearthatnothing in itsdecision shouldbe inter-pretedasestablishinganinflexiblerule.Itrejectedanyinterpretationwhichwouldpermit an employee to always establish

thedateofaccidentinarepetitivetraumacasebyreferencetothelastdateofwork.Thecourtthenconcludedtheclaimant’sappropriatemanifestationdatewas thelast day heworked before undergoingsurgery. Essentially, theOscar Mayer casetriedtoestablishafairnessstandardtoprotectclaimants.

In1989,theIndustrialCommissionDivisionoftheIllinoisAppellateCourtFourthDistrictbothincreasedtheburdenofproofonclaimantsinrepetitivetraumacasesandthenmadeiteasierforclaim-antstoestablishrepetitivetraumacases.See Three “D” Disc. Store v. Indus. Comm’n,198Ill.App.3d43(4thDist.1989).InThree “D” Discount Store, the appellate court held an employeemustproveapreciseidentifiabledatewhentherepetitivetraumainjurymanifesteditself,andthenawardedbenefitsbaseduponamanifestationdatewhichwasnotallegedbytheclaimant.TheclaimantallegedanaccidentdateofAugust10,1984,whichwashislastdayofwork.Theclaimanttestifiedhenoticedswellingandpaininbothhandsaswellasnumbnessinsomeofhisfingersasofhislastdayofwork.

TheWorkers’CompensationCom-mission found in favorof the claimantand awarded benefits based upon theallegedmanifestation date ofAugust10,1984.However, theappellatecourtmodifiedthecommission’sdecision.AphysiciantestifiedthatonJuly10,1984,itwascleartheclaimant’sconditionneces-sitatedsurgery.Inlightofthattestimony,the court held themanifestation datewasJuly10,1984.Therecordmadenomention regarding whether the doctor established a relationship between the claimant’sconditionandhisjobduties.The appellate court determined that areasonable person would have beenon notice that his condition was both work-relatedandmedicallydisablingon



July10,1984.ThecourtdeterminedthattimelynoticewasprovidedbaseduponamanifestationdateofJuly10,1984,anditaffirmedtheawardforbenefits.

Clearly, there is a disconnect in the standardsetforthbytheappellatecourtinThree “D” Discount Storeandtherulingoftheappellatecourtinthesamecase.The court first stated a claimantmustprove a precise identifiablemanifesta-tion date, but then it awardedbenefitsdespitefinding the claimant allegedaninappropriatemanifestation date. It isalso clear the courtwasnot “mindful”oftheimpactthemanifestationdatehas.Theappellatecourt’sdecision inThree “D” Discount Storewasissuedinearly1989.Theaccidentdatewasmorethanfouryearsearlier.Hypothetically,iftheemployer changed insurance carrierseffectiveAugust1,1984,thenthecarrierresponsible forworkers’ compensationclaimsonJuly10,1984wouldnothavehad any notice of the potential claimuntiltheappellatecourt’sdecisionmorethan four years later.Additionally, ifthe employee is required to prove apreciseidentifiabledatewhentheinjurymanifesteditself,itstandstoreasonthatbenefitswouldhavebeendeniediftheap-pellatecourtdeterminedtheappropriatemanifestationdatewasamonthearlierthantheoneallegedbytheclaimant.

Theappellatecourtfurtherexpandedthe scope of manifestation dates in1999inthecaseofA.C. & S. v. Indus. Comm’n,304Ill.App.3d875(1stDist.1999).Theappellatecourtaffirmedthecommission’sawardforbenefitsdespitethefactthatthemanifestationdatewas12daysaftertheclaimant’semploymentwas terminated. The appellate courtcommented theywouldnot impose anarbitrary limit on an otherwise compen-sablerepetitivetraumacasebyrequiringthemanifestationdatetofallwithintheperiodofemployment.

In A.C. & S., theclaimant testifiedhe began experiencing symptoms in his handswhileworking for theemployer,buthenevertoldanyoneinmanagementabouthisproblems,andhedidnotreceiveanymedical treatmentwhileworkingfortheemployer.Theclaimantwaslaidoffforreasonsunrelatedtoanytypeofmedical condition.The claimant’sfirstmedical treatmentwas oneweek afterhewas laid off.Twelve days after theclaimantwaslaidoff,hisdoctoradvisedhimhewassufferingfromcarpaltunnelsyndrome and hiswork duties for theemployer contributed to his condition.In rendering its decision, the appellate courtreferredtothemodernrulewhichallowscompensationevenwhenaninjuryoccursatatimeandplaceremotefromtheemploymentifitscauseissomethingthatoccursentirelywithinthetimeandplacelimitsofemployment.2LArthurLarson&LexK.Larson,Larson’sWorkers’CompensationLaw§29.22(1998).

Theappellatecourtcommentedthatthemanifestationdate is significant infixingthelegalrelationshipsbetweentheparties,butitfurtherstatedthesupremecourtneverintendedtogiveemployersanadditionalshieldbyrequiringtheinjurytobe traced to employmentduring theperiod of employment.The appellatecourt didnot commentonwhether theemployerwouldbecoveredbyitswork-ers’ compensation insurancepolicy foran accidentdatewhich fell outside theclaimant’speriodofemployment.

In2007, the appellate court issueda decision which was consistent with Peoria County Belwood and held the appropriatemanifestationdatewaswhentheclaimantknewofherinjuriesandtherelationshiptoheremployment.However,theSupremeCourtofIllinoisreversedthedenialofbenefitsandheldaclaimant’smanifestation date required amedical

opinion.Durand v. Indus. Comm’n,224Ill.2d53(2007).InDurand, the claimant allegedamanifestationdateofSeptember8,2000whichwasthedateonwhichanEMGstudy conclusively established acarpal tunnel syndromediagnosis.AnApplicationforAdjustmentofClaimwasfiled January 12, 2001.The employerarguedtheappropriatemanifestationdatewasinSeptemberorOctober1997,whentheclaimant reported toher supervisorthatshewassufferingfromproblemswithher hands and she believed her condition wasrelatedtoherjobduties.

Theappellatecourtheldtherewasnorequirementthataclaimant’sinjurymusthave been diagnosed by a physician or thataphysicianopineaninjuryiscausallyrelated to the employment.However,the supremecourt declined topenalizethe claimant who diligently workedthroughprogressivepainuntilitaffectedherabilitytoworkandrequiredmedicaltreatment.Inrenderingitsdecision,thesupremecourtnotedthatcourtsconsider-ing various factors have typically setthemanifestationdateoneitherthedatewhenmedicaltreatmentwasrequiredorthe date when an employee can no longer performrequiredworkduties.

Thesupremecourtfurthernotedthatiftheclaimantwouldhavefiledaclaimin1997, shewouldhavehaddifficultyprovingherinjury.Hersymptomswereonly intermittent at that time, and they did not requiremedical treatment. InDurand, the supreme court held theappropriatemanifestationdatewaswhenthepetitioner’scarpal tunnelsyndromewasconfirmedwithadiagnosticstudy.Assuch,thefilingoftheApplicationforAdjustmentofClaimwasnotoutsidethestatuteoflimitationsperiod.

Twosupremecourtjusticesdissentedfromthemajority’sdecision.JusticeGar-manwrotetheappellatecourt’sdecisionshould have been upheld in that there



was sufficient evidence in the recordto support theWorkers’CompensationCommission’s decision finding theappropriate manifestation date waswhen the claimant was aware she had a condition and was aware it was related to herjobduties.JusticeGarman’sdissentconcludedthemanifestationdateselectedbythecommissionandaffirmedbytheappellate courtwas entirely consistentwiththestandardsetforthbythesupremecourt in thePeoria County Belwood case. JusticeGarman further noted themajority’sdecisionestablishedade facto rulethatregardlessofaclaimant’sactualandreasonableawarenessofaninjury’smanifestation, corroborativemedicaltreatment is necessarybefore it canbesaid that a reasonable personwouldplainlyrecognizetheinjuryanditscausalrelationship to his or her employment.JusticeGarman also commented thatdespitethemajority’semphasison“fair-ness andflexibility” itmadeamedicaldiagnosisofarepetitivetraumainjurythedeterminativefactorintheinquiryofanappropriatemanifestationdate.

Movingforwardto2012,theappel-latecourtagainseemedtoreachtoawardbenefitstoaclaimantallegingrepetitivetrauma injuries.See City Colleges of Chi. v. Ill. Workers’ Comp. Comm’n, 2012ILApp(1st)112560WC-U.InCity Colleges of Chicago,theappellatecourtaffirmedthedecisionofthecommissionwhichadoptedthearbitrator’ssua sponte determinationoftheclaimant’srepetitivetrauma injurymanifestation date.Thefactsof the casedemonstrated that theclaimant’sfirsttreatmentforright-handedcarpal tunnel syndrome occurred onSeptember 3, 2002.On that date, thetreating doctor stated the condition was most likely related towork.A seconddoctorevaluatedtheclaimantNovember22, 2002.He diagnosed carpal tunnelsyndromeandrecommendedsurgery.A

third doctor evaluated the claimant onMarch19,2003,whentheclaimantcom-plainedofleft-handedsymptomsforthefirsttime.AnEMGstudywasperformedonApril5,2003,andtheseconddoctorreviewed theEMGonMay15, 2003.TheseconddoctordraftedaletterdatedMay20,2003,indicatingtheclaimant’sconditionwaswork-related.

The claimant alleged an accident date ofFebruary14,2003,buttheArbitratorandthecommissionfoundtherewasnoevidencetosupportthatdateasanappro-priatemanifestationdate.Thearbitratorsua sponte determined the appropriate manifestationdatewasMay20,2003.

The employer argued the commis-sion’s award for benefitswas againstthemanifest weight of the evidencebecauseofitsadoptionofthearbitrator’ssua sponte findingas to themanifesta-tion date.The appellate court statedthe employer’s argumentwaswithoutmerit.Thecourtfurthercommentedthatprevious decisions considered variousfactorswhen determining appropriatemanifestation dates including datesonwhich (1) a claimant first soughtmedical treatment; (2) a claimantwasfirst informed by a doctor that themedicalconditionwaswork-related;(3)aclaimantwasfirstunabletoworkasaresultofthework-relatedcondition;(4)aclaimant’ssymptomsbecamemoreacuteatwork;and(5)aclaimantfirstnoticedthesymptomsofthecondition.

Noneofthefactorssetforthbytheappellatecourtcorrespondwiththemani-festationdate chosenby the arbitrator.However,theappellatecourtconcludedtherewassufficientevidenceintherecordtosupportthecommission’sdecision,butitdidnotsetforthanexplanationastohowthechosenmanifestationdatemeetsthecriteriasetforthbypreviousdecisionsfromtheappellatecourtorthesupremecourt.Theappellatecourtstatedthateven

if the arbitrator incorrectly identifiedthemanifestationdate,theerrorwasofno consequence because the employerabandoneditspreviousassertionthattheclaimant’srequestforbenefitswasbarredbythestatuteoflimitations.

In 2016, the appellate court againaffirmedacommissiondecisionawardingbenefitstoaclaimantdespiteanapparentdeviationbetweenthechosenmanifesta-tiondateandthestandardspreviouslysetforthbythecourts.City of Peoria v. Ill. Workers’ Comp. Comm’n, 2016 IL App (3d) 150132WC-U. InCity of Peoria, the employer argued the appropriatemanifestationdatewasatanunspecifiedtimeasearlyas2007whentheclaimant’stestimony andmedical documentationestablished that the claimant exhibited symptomsofcubitaltunnelsyndromeandmade statements to healthcare providers that hiswork activities triggered hissymptoms.Theundisputeddateofnoticegiven to the employer was December 10, 2009,whichwas longafter the45daynoticedeadline expired.The employerarguedtheclaimwastherebybarred.Theappellate court reiterated the claimantmustallegeandproveasingledefinableaccident date fromwhich noticemustbegiven.

The claimant alleged an accident date ofOctober30,2009,whichwasthedatetheclaimantfirsttreatedwithDr.Garst.Theclaimantpreviouslytreatedwithhisprimary care physician at the beginning ofOctober.WhentheclaimantsawDr.Garst, he was given a diagnosis, and Dr.Garstrenderedanopinionthattherewas a causal relationship between theclaimant’sworkdutiesandhiscondition.

Theappellatecourtreiteratedmani-festationdates are subject to aflexiblestandard that ensures a fair result forboth the faithful employee and theemployer’sinsurancecarrier.Thecourt



furtherstatedpreviousdecisionstypicallyconsideredvariousfactorswhichsetthemanifestationdateaseitherthedateonwhich the employee requiredmedicaltreatment or the date on which the em-ployee could no longer performworkactivities.However, theappellatecourtthenaffirmedtheawardforbenefitsbaseduponamanifestationdateofOctober30,2009,whichwastheclaimant’ssecondvisittoadoctor.ItwasnotuntilathirdvisitwithDr.Garstthattheclaimantwasgiven restrictions preventinghim fromperforminghisregularworkactivities.

Once again, the appellate courtadoptedalatermanifestationdatetherebyallowingtheclaimanttoobtainbenefits.Thecourtdeclinedtoutilizethestandardset forth inDurand which required amedical diagnosis of the claimant’sconditionandknowledgeofarelationshipbetweentheconditionandtheclaimant’semployment.BaseduponthestandardsetforthinDurand,themanifestationdateshouldhavebeenin2007 whichwouldhaveresultedinadenialofbenefitsduetotheclaimantfailingtoprovidetimelynoticeofawork-relatedconditiontotheemployer.

ThisbringsusbacktotheHeyl, Roys-ter case.Theclaimantwasasecretaryforalawfirm.ShetestifiedthatsometimeinJanuary2009,shehadpaininbothofherhandsandwrists.Shesuspectedshewassufferingfromcarpal tunnelsyndrome,butshewasnotaphysician,soshecouldnotdiagnosisit.Theclaimant’slastdateofemploymentwasMarch9,2009.Theclaimantwas terminated for reasonsunrelatedtoanymedicalcondition.

OnApril 2, 2009, the claimantsignedanApplicationforAdjustmentofClaimalleging amanifestationdateofMarch9,2009,whichwasherlastdayofemployment.NoticewasprovidedtotheemployeroftheallegedworkaccidentonApril10,2009.Thearbitratormade

an award for benefits. TheWorkers’Compensation Commission reversed the arbitrator’s award and held theclaimantfailedtoprovidetimelynoticeofherinjuries.Thecommissionnotedtheclaimant’stestimonythatshehadaprettygoodfeelinghersymptomswereduetocarpal tunnel, but shewas notwillingtotaketimeoffworktohavetreatmentperformed.The commission concludedthe claimant knewof her injuries andits causal link to herwork as early asJanuary2009.Consequently,thenoticeprovidedtotheemployerApril10,2009wasnottimely.

Thecircuitcourtreversedthecom-mission’s rulingnoting thecourtshavepreviouslyheldthemanifestationdateisappropriate on either the date on which theemployeerequiresmedicaltreatmentor the date on which the employee can no longerperformworkactivities.Thecourtreasonedthatbecausetheclaimantwasabletoworkwithoutlimitationuptothetimeshewaslaidoff,andshedidnotrequiremedicalattentionuntilafterwards,thecommissionerredasamatteroflawin holding the claimant did not provide timelynotice.

On remand, the commission reversed itselfontheissueofnotice,andthematterproceededtotheappellatecourtonboththeoriginalcommission’sdecisionandthedecisiononremand.

The appellate court’s decision fo-cused on the initial decision of thecommission.The employer argued thecommission’sdecisionfindingtheclaim-ant did not provide timely notice to the employerwasnot against themanifestweight of the evidence.The employerfurtherarguedthecircuitcourtessentiallyconductedade novo review.

Theappellatecourtultimatelydeter-minedthecommission’soriginalfindingthat timely notice was not provided to the employerwasbothagainstthemanifest

weightoftheevidenceanderroneousasamatteroflaw.Thecourtreasonedtheclaimant had not reached either the date onwhichsherequiredmedicaltreatmentorthedateonwhichshecouldnolongerperformherworkactivitiespriortoherterminationdateofMarch9,2009.Thecourt further held the commission’soriginal finding that the claimantwasobligated to give notice to the employer in January2009ofher“potential”disabilitywas against themanifestweightof theevidence.TheappellatecourtcitedtotheDurand caseinsupportofitsholding.

What is especially odd about thiscase is that the acceptedmanifestationdateofMarch9,2009wasnothingmorethanthelastdaytheclaimantworkedfortheemployer.Atthattime,shehadnotreceivedanymedicaltreatmentaswouldbe necessary pursuant to the holdingin Durand.Noticewasprovided to theemployer of awork-related conditionApril 10, 2009, but the claimant didnotreceiveanymedicaltreatmentuntilalmostamonthlater.Theappellatecourtdidnotexplainhownoticeofarepetitivetraumainjurycouldbegivenbeforetheconditionmanifesteditselfbywayofamedicaldiagnosisandcausalconnectionopinion.

The purpose of this article wasnot tocriticizeeachdecision involvingmanifestationdatesinrepetitivetraumaclaims.That being said,many of thecases cited above appear to have adopted manifestationdateswhichareinconsis-tentwiththecourts’statedstandardsandsomeofthedecisionscompletelydoawaywith the burdenof proof requirementsbyawardingbenefitsbasedonaccidentdates which were never alleged by the claimants.

Notwithstanding the inconsistencies inthedecisions,theappellatecourtandthe supreme court have consistentlyemphasized theflexibility and fairness



Scott L. HowiePretzel & Stouffer, Chartered, Chicago

Appellate Practice Corner

About the Author

Scott L. Howie is a part-ner at Pretzel & Stouffer, Chartered, in Chicago, specializing in post trial and appellate practice in the state and federal courts. He received his undergraduate degree from Northwestern Uni-

versity in 1989 and his law degree from Chicago-Kent College of Law in 1994. Mr. Howie is a member and past director of the Illinois Appellate Lawyers Association, where he co-chairs the Moot Court Committee.

requirements of these types of cases.The one consistent factor in each ofthe cases cited above was there was a causal relationship between the claim-ants’medical conditions and theworkactivities performed by the claimants.Theobviousconclusion tobedrawnisthatthecourtswillusethe“fairnessandflexibility”argumenttoawardbenefitstoaclaimantwhoissufferingfromacondi-tionwhich is causally related toworkactivities.On the surface, thismethodmayappeartoberighteous,butitmakesitdifficultforemployerstoproperlydefendclaimswhenthecourtseitherchangethestandards or circumvent the standardsclaimedtobenecessaryforaclaimanttoproveuparepetitivetraumacase.

Additionally,thecourtshavestatedtheyaremindfuloftheimpactmanifesta-tion dates have on legal relationships.However,inthecaseswherethecourtsawardbenefitsbaseduponamanifesta-tion date which was not alleged by the claimant, thecourts arenotgivinganyconsideration to the impact the changed manifestationdateshaveon legal rela-tionships.Thiscouldcreateissueswithinsurance coverage, averageweeklywage, and even the employer/employee relationship.

Whendefendingemployersinwork-ers’ compensation claims arising fromalleged repetitive trauma injuries, it isnecessarytoconsiderthedecisionsfromtheappellatecourtandfromthesupremecourt to determine the nature of theevidence which will need to be presented toachieveasuccessfulresult.Itisclearthattodenyarepetitivetraumacasebasedonan inappropriatemanifestationdate,theemployermustalsopresentastrongcausal connectiondefense establishingthere is no relationship between a claim-ant’s condition and the claimant’s jobduties.

Supreme Court Rule 341 has adeceptively simple one-word title:“Briefs.” Ill.S.Ct.R.341(eff.Jan.1,2016).Amongtherule’smanysubparts,however,isadetailedchecklistofwhatanappellantmust includein theinitialbrief,aswellaswhatanappellee’sbriefandtheappellant’sreplymustcontain.Theruleisaworkinprogress—evolving,likethelawingeneral,asprioritiesshiftand preferences change, and also astechnologicaladvanceshaveaffectedthepracticeoflawandappellateadvocacy.SinceadoptingRule341fromtheformerRule39in1967,thesupremecourthasamended it 21 times, including seventimessince2000.

TheSupremeCourtRulesCommit-tee has provided extensive comments on the initial adoption of Rule 341,including comparisons to the formerrule,andithasofferedoccasionalcom-mentsonsubsequentamendments.Ill.S.Ct.R. 341,CommitteeComments.Some of the comments are dated, astheir corresponding rules have beenamended inways thatmake the com-ments on them obsolete. But amidthe committee’s general explanationsof certain provisions are a number ofinstructive insights into theways inwhich the reviewing courtsmake useofappellatebriefs,andvaluablelessonsfor anyone chargedwith the task ofwritingsuchabrief.ThiseditionoftheAppellate Practice Corner examines the CommitteeCommentstoRule341for

What Would the Committee Do? Insights from the Committee Comments

on Supreme Court Rule 341

practice pointers and advice relevant to thepreparationofappellatebriefs.

Don’t Impose a Burden on the Court

The current version of the rulecautions that the use of footnotes is“discouraged,” but allows them to besingle-spacedandrequiresthattheybein 12-point type or larger, the same as all thetextinthebrief.Ill.S.Ct.R.341(a).The Committee Comments contain an echooftheformerRule344(b),whichwasrepealedin2006;thatruleprescribedtheuseof10-pointtypeinfootnotes(“on11-pointslugs,”atypographicaltermofart with little meaning to most modern practitioners) because “[i]t is believedthat the limited use of this slightlysmaller type will not impose a burden on


Appellate Practice Corner | continued

the courts.”Ill.S.Ct.R.341,CommitteeComments(emphasisadded).

Whiletypesmallerthan12-pointisno longer permitted under the currentrule,theinterestinusingtypethat“willnot impose a burden on the courts”speaks to a modern concern that isreflectedinthemost-recentamendmentto Rule 341: the allowance ofwordlimits as an alternative to page limits.See Ill. S. Ct. R. 341(b)(1).Anyonedraftingalengthyandcomplicatedlegalargument should considerwhether heorshemaybeimposinganunnecessaryburdenonareaderbyusingafontthatisnoteasilyreadable—or,toputitdif-ferently,whetheritispossibletoreducethereader’sburdenbyusingtypethatislargerorotherwiseeasiertoread.Untilthealternativewordlimitstookeffectthisyear, attorneyswere forced to complywith page limits, and often had littlechoicebuttousefontsandsizesthatwerehardertoreadbutwouldallowthemtofittheirargumentsintotheprescribedpagelimits.Thewordlimitenablesattorneystousemore-readablefonts,withouttherestrictionofapagelimit,soastolessentheburdenplacedonthecourts.

It is Desirable to Avoid Confusion

As currently written, Rule 341requiresthatthebriefrefertotheparties“asinthetrialcourt,e.g.,plaintiffanddefendant, omitting thewords appel-lant and appellee and petitioner and respondent, or by using actual namesor descriptive terms such as ‘the em-ployee,’ ‘the injured person,’ ‘thetaxpayer,’‘therailroad,’etc.”Ill.S.Ct.R. 341(f).TheCommitteeCommentsprovideaglimpseintothepreviousrule,whichcouldbereadliterallytorequirethatpartiesbe identifiedas“plaintiff”and“defendant.”Ill.S.Ct.R.341,Com-

mitteeComments.Whenitwasadoptedin 1967, the rule expressly allowedwhatthecommitteecalledthe“existingpractice” of referring to the parties“byactualnamesordescriptive termsinstead of as plaintiff or defendant,which in many instances is desirable to avoid confusion.”Id.(emphasisadded).

Coupledwiththeexamplessuppliedinthemodernrule,theCommitteeCom-mentsgiveanobviousreasonforusingmore-descriptive terms that reflect theparties’ roles in the dispute instead oftheformallegaldesignationsdictatedbytheproceduralpostureofthecase.Theavoidanceofconfusionisasimpleandusefulstandardtoapplytoanypieceoflegalwriting—especiallyone inwhichtherearemultipleparties,andinwhichitmightbehardtokeeptrackofwhichpartyiswhich.Dependingonthecase,ofcourse, it ispossible that“plaintiff”and “defendant”might be the clearestways of referring to the parties. Butemphasizingthevalueofclarityinsuchreferences, theCommitteeCommentssuggest that it is worth consideringwhetherthereferencestothepartieshelporhinderareader’sunderstandingoftheargument,andadjustingthosereferencesaccordingly.

Detail Has its Place

Whileitisoftennecessarytoprovidegreatlegalandfactualdetailinsupportofanargument,theCommitteeCommentswarnagainsttellingthecourttoomuchtoosoon—thatis,beforethedetailshaveany realmeaning to it.By comparingthe current rule to its predecessor, thecomments illustrate what the courtswantfromthe introductoryportionsofabrief—andperhapsmoreimportantly,what they do not want at that point in the brief.Likewise,theyoffersomeinsightintohowareviewingcourtcomestoanappeal, and how an attorney can parcel outthedetailsofacasetothegreatesteffect.

Rule 341(h)(2) requires “[a]n in-troductory paragraph stating (i) thenatureoftheactionandofthejudgmentappealedfromandwhetherthejudgmentisbasedupontheverdictofajury,and(ii)whether any question is raised onthe pleadings and, if so, the nature ofthe question.” Ill. S.Ct.R. 341(h)(2).The rule provides an illustrationof anappropriate introductory paragraph:“‘This actionwas brought to recoverdamages occasioned by the alleged negligenceofthedefendantindrivinghisautomobile.Thejuryrenderedaverdictfor the plaintiff uponwhich the courtentered the judgment fromwhich this

The avoidance of confusion is a simple and useful

standard to apply to any piece of legal writing—

especially one in which there are multiple parties,

and in which it might be hard to keep track

of which party is which.



appealistaken.Noquestionsareraisedonthepleadings.’”Id.

The Committee Comments expressly pointtothisillustrationandemphasizeitsbrevity,underscoringitslimitedpurpose:“informingthecourtofthegeneralareaofthelawinwhichthecasefalls,whethertherewasajurytrial,andwhetherthereisapleadingquestionandifsowhatitis.”Ill.S.Ct.R.341,CommitteeComments.Further emphasizing that this openingparagraphisnottheplaceforadetailedrecitationofthefactsandthearguments,thecommentsdescribetheconductthatthe amended rulewasmeant to deter:“Thepracticeofmany lawyerswas toincludeinthestatementof‘TheNatureoftheAction’calledforbytheformerrulemuchmoredetailthanthecourtswantedatthisplaceinthebrief.”Id.

Likewise, the comments observe,there is a reason the rule no longerrequires the introductory paragraphto include a statement of the party’s“theory of the case”: That require-ment“producedmuchmoredetailthanthe rule contemplated.” Id. Instead, a separatesubpartoftherulenowrequiresa separate statement of “the issue orissuespresentedforreview,”expresslyrequiringittobe“without detail or cita-tionofauthorities.”Ill.S.Ct.R.341(h)(3) (emphasis added).TheCommitteeComments underscore the demand fornodetailinthatstatement:“Again,thecourtdoesnotwantdetailatthispointinthebrief.”Ill.S.Ct.R.341,CommitteeComments.Thecommentspointtotherule’sillustrationasanexampleofissuesthat are stated concisely andwithoutdetail. Id. According to the comments, thecourtdoesnotwant“anelaboratelyframedlegalquestion”;itwantsonly“ageneralideaofwhatthecaseisabout.”Id. Indeed, the comments give a com-mendablyfrankacknowledgementofthe

court’slimitationsatthisearlypointinitsexaminationofabrief:“Thecourtisnot ready at this stage to appreciate the details.”Id.

The Committee Comments takepainstoemphasizethedetailsthatwereleftoutoftheillustrations:

It should be noticed, for ex-ample,thatthefirstalternativeillustration of a statement ofthe issuepresented for reviewdoesnotstatewhatconductitisthatoneofthepartiescontendsis contributory negligence asamatter of law.The secondalternative does not describe the objections or the evidence towhichtheyrelate.Thethirdalternative does not describe the instruction of which thecomplaintismade.

Id. This comment helps to explain the limitednatureoftheissuesstatementthattherulesrequireinanappellant’sbrief.

Butifthecourtisunabletoappreci-atethedetailsofacasewhenitfirstopenstheappellant’sinitialbrief,itislikelytohaveamuchbettercapacitytodosobythe time it gets to the appellee’sbrief.The provisions concerning introduc-tory paragraphs and issues statementsare contained inRule 341(h)—which,strictly speaking, is specific to theappellant’s initial brief.The appellee’sbriefisgovernedbyRule341(i),whichexpressly permits the appellee to omit those sections, among others, “exceptto the extent that the presentation by theappellantisdeemedunsatisfactory.”Ill.S.Ct.R.341(i).Dependingonwhathas been said in the appellant’s brief,the appellee may wish to correct certain impressionsoremphasizefactsthatareimportanttounderstandingtheintroduc-

toryparagraphortheissuesstatement.Inaplaintiff’sappealofadismissalbasedonastatuteoflimitations,forinstance,adefendantmightreasonablydeemanis-suesstatement“unsatisfactory”ifitsaysnothingabouttheplaintiff’sdiscoveryoftheinjury.ToparaphrasetheCommitteeComments,thecourtmay be ready at this stage to appreciate suchdetails, and itmaybewithintheattorney’sprofessionaljudgmenttoprovidethem.

Use Your Best Judgment

Indeed, in one instance related to the appellee’s brief, theCommitteeCom-mentsrecognizethatsomedecisionsastotheformandcontentofanappellatebrief arebetter left to the judgmentoftheattorneywhopreparesit.AccordingtotheCommitteeComments,theformerversion of the rule required “that theappellee’s brief state the propositionsreliedupontosustainthejudgment‘asfaraspracticable,inthesameorderasthepointsofappellant.’”Ill.S.Ct.R.341,CommitteeComments(quotingformerrule).Thecommitteedeliberatelyelimi-natedthatrequirementwhenitadoptedtheoriginalversionofthecurrentrule,havingconcludedthatinmostcasesanappellee’scounselwillrecognizethatitmakessensetofollowthesamesequenceas the appellant: “When the nature ofthesubjectmatterpermits,counselwillnormallyfollowtheorderestablishedbyhisopponent in the interest ofmakinghis brief as convenient as possible forthecourttouse.”Id.Butthecommitteealso recognized that this might notalways be themost logical approach:“Sometimeseffective advocacyrequiresthat a different order be adopted.” Id. (emphasis added).Reflecting the roleof an attorney’s professional skill and


Appellate Practice | continued

judgmentinpresentinganargument,thecommitteeconcludedthat“itisnotpos-sibletoregulatethismatterbyrule.”Id.

In acknowledging “effective ad-vocacy” as a bettermotivator than aformal rule, the committee set forth avaluable standard that should informanyinterpretationoftherulesgoverningbriefs.Thesequenceinwhichtopresentmultipleargumentsisjustonesubjectonwhich reasonableattorneysmaydiffer.Thiscommentexpresslyrecognizesthatattorneysshouldbeabletomakethosedecisions in theway they thinkwillserve theirclientsmosteffectively,butthatideaisimplicitinotherpartsoftheruleaswell.Byadoptingwordlimits,forinstance,theruleallowsattorneystouseamore-readable font, even if itwouldcauseabrieftoexceedthepagelimit;byrelaxingtherulegoverningwhattocalltheparties,theruleletsattorneysmaketheir argumentsmore clear.See Ill. S.Ct.R. 341(b), (f).These changes giveattorneys broader latitude to exerciseprofessionaljudgmentintheinterestsofeffectiveadvocacy.

Conclusion

Easingthereader’sburden,avoidingconfusion, understanding the court’sreadiness, making advocacy effec-tive—eachofthesegoalsisrecognizedin the Committee Comments in relation toadifferentaspectofanappellatebrief.Buttheyallreflectlargerprinciplesaboutthenatureofadvocacyandthegeneralpurposeabriefismeanttoserve.Takentogether, theymakeup a useful set ofgeneralprinciplesforthepreparationofthewholebrief,oranykindofpersuasivelegalwriting.

About the Author

Lindsay Drecoll BrownCassiday Schade LLP, Chicago

Construction Law

Lindsay Drecoll Brown is a senior associate in the Chicago office of Cas-siday Schade LLP. She concentrates her practice in civil litigation defense, with an emphasis on construction law, profes-sional liability and product

liability. Ms. Brown received her J.D., cum laude, from Loyola University Chicago School of Law, and her undergraduate degree from Michigan State University, with high honors. She is a member of the Illinois Association of Defense Trial Counsel’s Construction Law Committee.

Animpliedwarrantyofhabitabilityarisesoutofabuilder’ssaleofanewlyconstructedresidenceasthebuilderwar-rants, by implication, that the property is reasonably suitable for its intendedpurpose: habitation. Bd. of Managers of Park Point at Wheeling Condo. Ass’n v. Park Point at Wheeling, LLC, 2015 ILApp (1st) 123452, ¶¶ 11-12.Liability for breach of thiswarrantyapplied, historically, only to buildersand developers selling the fruits oftheir own labor: residential property.Id. However,liabilityforbreachoftheimpliedwarrantyofhabitabilityhasbeenexpandedbytheIllinoisAppellateCourtFirstDistrictundercertaincircumstancesto reach contractors that participated in the construction at issue, yetwere notinvolved in the sale of the property.Wheeling, 2015 ILApp (1st) 123452, ¶13; also see Minton v. Richards Grp. of Chi.,116Ill.App.3d852,854-55(1stDist.1983);1324 W. Pratt Condo. Ass’n v. Platt Constr. Grp., 2012ILApp(1st)111474, ¶39.TheappropriatenessofthatexpansionhasbeencalledintoquestionbytheSecondandFourthDistrictAppel-lateCourts,aswellasbylegalscholars.Lehmann v. Arnold, 137Ill.App.3d412,418(4thDist.1985);Bernot v. Primus Corp., 278 Ill.App. 3d 751, 754-55(2dDist. 1996);also seeAnthony J.

The First District Announces the Implied Warranty of Habitability Will Not be Expanded to Include Architects, Even in the Face of

Builder-Developer Solvency Issues

Longo&MichaelD.Pisano,The IDC Monograph: The Implied Warranty of Habitability in Construction Defect Cases, IdcQ.,Vol26,No.4,atM-3andM-6(2014).Recently,theFirstDistrictannounced that liability for breach ofthewarrantyofhabitabilitywillnotbeexpandedfurthertoreacharchitectsanddesignprofessionals.Wheeling, 2015 IL App(1st)123452,¶31.

The Backdrop of Wheeling

In Wheeling, theFirstDistrict re-viewedthesufficiencyofacondominiumassociation’s claims alleging a breachof the impliedwarranty of habitabil-



ity by entities involved in the design, construction and sale of a residentialcondominium complex referenced as“ParkPoint.”Id. ¶¶1-2.PlansforParkPointwerefinalizedbythearchitectin2000andthreecondominiumbuildingsweresubsequentlyerectedbetween2001and2004.Id. ¶2.Shortlythereafter,airandwater began leaking through thewalls, windows and doors, damaging the interiorofeachofthebuildings.Id.¶4.Uponfiling suit, the condominiumas-sociationallegedthattheinfiltrationwascausedbyanumberofpurporteddefectsthatdidnotbecomeapparentuntil2007,suchasinsufficientmasonrywalls,flash-ing,capsanddams.Id. Repairs needed toremedythedefectswereestimatedtoexceed$4million.Id.

Atthetrialcourtlevel,theassocia-tion’sclaimagainstHirschandAssoci-ates,LLC(Hirsch),thearchitecturefirmthatdesignedParkPoint,wasdismissedpursuanttosection2-615oftheIllinoisCodeofCivil Procedure for failure tostate a claim. Id. ¶¶ 3-6. Specifically,itwas found thatHirsch could not besusceptibletoliabilitybecauseHirschdidnotbuildorsellParkPoint;rather,Hirschsolelydesignedtheproperty.Id. ¶1.

The Wheeling Appeal and Decision

The associationfiled an interlocu-tory appeal seeking a finding that thedismissal of its claim againstHirschwas erroneous, urging the appellatecourttoexpandthepotentialforliabilityfor breach of the impliedwarranty ofhabitability to include architects. Id. ¶¶1,23-24.Insupportofitsargument,the association cited Minton v. Richards Group of Chicago.Wheeling, 2015 IL App (1st)123452, ¶24. It argued thatthe reasoning set forth in theMinton decision with respect to the expansion of the impliedwarrantyofhabitabilitytothepaintingsubcontractordefendantshould similarly be applied to designprofessionals for public policy reason,claiming“nojustificationforimmuniz-ingarchitectsfromthereachofMinton”exists.Id.¶24.Traditionally,theimpliedwarranty of habitability doctrine hasbeenappliedbecausethecoststorepairdefectiveconstructionshouldbeborneby the builder-seller that created thelatentdefects, asopposed to thehomebuyer. Id.¶8.Asarticulatedbytheas-sociation,latentdefectsinaresidentialpropertycanjustaseasilybecausedbythefailuresbyofarchitectasthefailures

ofabuilder,developerorcontractor.Id. ¶24.Theassociationfurthercontendedthat theworkofanarchitect issimilartotheworkofsubcontractors,whohavebeen found susceptible to liability forbreach of thewarranty of habitability.Id.Thus, theassociationadvocatedforan expansionof liability for breachofthewarranty of impliedhabitability toarchitects generally, and toHirsch inparticular.Id.

The appellate court did not taketheassociation’sbaittofurtherexpandthereachofthedoctrineoftheImpliedWarranty of Habitability. Instead, itrejected the association’s argumentsandaffirmedthedismissaloftheBreachof the ImpliedWarranty ofHabitabil-ity claim asserted againstHirsch. Id. ¶¶25,31.Thecourtreasonedthatinor-¶25,31.Thecourtreasonedthatinor-25,31.Thecourtreasonedthatinor-dertobeliableforabreachoftheimpliedwarrantyofhabitability,anentitymustactively participate in the constructionof a residentialproperty. Id. ¶22.Thecourtnotedthatarchitectsdonotactuallyperformorcoordinateconstructionwork,nordotheyprovideequipmentorlaborfor constructionwork. Id. ¶¶ 22, 29.Instead, they perform design serviceswithoutwarrantingtheaccuracyoftheirplansandspecificationsandtheirdutiesare set forth in a services contract. Id. ¶¶15,22.Thecourt furthernoted thatwhenitcomestodesignprofessionals,“courts have consistently declinedto heighten their express contractualobligations by implying awarranty ofhabitability of construction.” Id. ¶ 22.Thecourtfurtherfoundthatarchitects,unlikeentitiesengaged inconstructionwork,arenotobligatedtoperformtheirprofessionalservicesina“workmanlikemanner.” Id. ¶ 30.That determination

In Wheeling, the First District reviewed the

sufficiency of a condominium association’s claims

alleging a breach of the implied warranty of habitability

by entities involved in the design, construction and

sale of a residential condominium complex

referenced as “Park Point.”


Construction Law | continued

was based primarily on the court’sdeterminationthatarchitectsare“profes-sionals”andthe“workmanlike”standardismeant to apply only to individualsemployed inmanual labor, includingbuilders, contractors, and craftsmen intheconstructiontrades.Id. Asarticulatedin Wheeling,architectsarejudgedbytheapplicablestandardofcare;thatis,liabil-ity attachesonly “when the architect’sconductfallsbelowthestandardofskilland care exercised by others engaged inthesameprofession,andinthesamelocality.”Id.¶15.

Conclusion

Inaffirmingdismissalof theasso-ciation’simpliedwarrantyclaimagainstHirsch,theWheeling courtconsistentlyfollowed a number of cases rejectingbreach of impliedwarranty of habit-ability claims directed against architects and other design professionals datingback to the 1898Michigan SupremeCourtdecisionofChapel v. Clark,117Mich. 638 (1898).Wheeling, 2015 IL App (1st) 123452, ¶ 17. Illinois lawtherefore remains clear and consistentthattheimpliedwarrantyofhabitabilitywill only be applied to those entities whoengage inconstructionandnot tothose who prepare the plans, designs and specifications pursuant towhichtheconstructionistobeperformed. Id. ¶22.PursuanttoWheeling, design pro-fessionalsthatdonotactivelyparticipateinconstructionworkmaybereassuredthat theywill not be subjected to theincreasingexpansionoftheapplicationoftheimpliedwarrantyofhabitability.Instead, Illinois law remains clear that the dutiesofanarchitectremainlimitedtothoseexplicitlysetforthintheapplicabledesignservicesagreement.

Bradford J. PetersonHeyl, Royster, Voelker & Allen, P.C., Urbana

Workers’ Compensation Report

About the Author

Bradford J. Peterson is a partner in the Urbana office of Heyl, Royster, Voelker & Allen, P.C. Mr. Peterson concentrates his practice in the defense of workers’ compensation, construction litigation, auto liability, premises liability,

and insurance coverage issues. In recent years, Mr. Peterson has become a leader in the field on issues of Medicare Set Aside trusts and workers’ compensation claims. He has writ-ten and spoken frequently on the issue. He was one of the first attorneys in the State of Illinois to publish an article regarding the ap-plication of the Medicare Secondary Payer Act to workers’ compensation claims, “Medicare, Workers’ Compensation and Set Aside Trusts,” Southern Illinois Law Journal (2002).

If an employee engages in self-treatmentresultingininfectionanddis-ability,isthecausalconnectionbrokenwithregard to theunderlyingworkers’compensationinjury?NotaccordingtoarecentdecisionoftheIllinoisAppellateCourtFourthDistrict,Workers’Compen-sationCommissionDivision.Dunteman v. Ill. Workers’ Comp. Comm’n, 2016 IL App(4th)150543WC.

In itsApril 29, 2016decision, thecourtreversedtheWorkers’Compensa-tionCommission decision and foundthatthepetitioner’sself-treatmentwitharesultinginfectiondidnotbreakcausalconnection for ongoingmedical treat-ment,totaltemporarydisability(TTD),andpermanentpartialdisability (PPD)arising from the underlyingworkers’compensationaccident.

In Dunteman, the petitioner, Steven Dunteman, soughtmedical expense,TTD, and PPD associated with the am-putationofhisleftthirdtoefollowinganinfectionthatdevelopedafterheinserteda sterilizedneedle intoablisteronhisleftfoot.Itwasstipulatedatarbitrationthat thepetitioner sufferedablisteronhis left foot after hewas required tooperateatruckwithmanualtransmissionwhile his automatic truckwas in forrepairs.Dunteman, 2016 ILApp (4th)150543WC,¶10.OnoraboutJune21,2011, the petitioner, a diabetic, noticed thatthebottomhalfofhisleftfootwas

Employees Innocent, But Injurious Self-Treatment Fails to Break

Causal Connection

sore.Id.Hecontinuedworking12hourshiftsforthefollowingnineortendays.

On June 25, 2011, the petitionernoticedawaterblisterunderthecallusonthebottomofhisleftfootbetweenhisthirdandfourthtoes.Id.¶11.Hewenttohiskitchenandsterilizedaneedlebyboiling it in hot water and inserted the needleintotheblisterinordertodrainit.Id.Hethencleansedtheareawithperox-ideandacottonswab.Id.ThereafteronJuly4,2011,henoticedthathisleftfootbecameredandswollenintheareaoftheblister.Id.¶14.HesoughttreatmentatSt.Mary’sHospitalandreportedatwodayhistory of feverwith chills and afourdayhistoryofincreasingleftfoot


pain,swellingandredness.Id.¶14.Healsoreportedthatseveraldayspreviousthe top of his foot had begun turningredwith swelling and the presence ofwarmth.ItwasnotedthatthepetitionerhadahistoryofTypeIIDiabetesanda2009hospitalizationforcellulitisoftherightlowerextremity.Id.

The petitionerwas referred toDr.JasonAnderson, apodiatrist, the sameday.Dr.Andersonfoundthatintheareaofthethirdmetatarsalhead,thepetitionerpresentedwithafullthicknessulcerationthatwasmalodorous,whichwas twocentimeters in diameter with a necrotic fibroticbaseId.¶15.Hewasdiagnosedwith severe cellulitis of the left lowerextremityandadmittedforadministra-tion of broad spectrumantibiotics. Id.Thepetitioner thenunderwent thefirstofthreesurgeriesonJuly5,2011,withdrainageoftheabscessonhisleftfoot.Id. ¶ 16.As a result, on July 6, 2011,Dr.Henderson performed a secondaryirrigation and debridement with delayed closure.Hisdiagnosisat that timewasof“deepabscessleftfoot.”Id.¶17.Heimproved andwas dischargedon July8, 2011.Thereafter in follow-up,Dr.AndersonsawhimAugust2,2011,andfound that the left third toewas com-pletely “gangrenous andnecrotic.” Id. ¶18.ThreedayslateronAugust5,2011,thepetitionerunderwentathirdsurgery,inwhichhisleftthirdtoewasamputated.Id.Thepetitionerwasultimatelyreleasedto return towork full dutySeptember5,2011.

Dr.Anderson noted that the peti-tioner’semploymentputhimatriskforulcerations tohis feet secondary tohisuseoftheclutch,aswellasgettinginandoutofhistruck.Id.¶20.Heconcludedthat themostlikelycauseoftheoriginalulcer-

ationwashisemploymentactivities.Id.Dr.JeffreyCoeperformedanIME

on the petitioner’s behalf on Febru-ary 7, 2012 and concluded that therewas a causal relationship between thepetitioner’semploymentwithrepetitiveclutchdepression,exitingthetruck,andhiscurrentconditionof ill-being. Id.¶21.Althoughheacknowledgedthattheclaimant’sdiabeteswasa“mildcause”oftheinfection,heopinedthatthepetitionerwouldnothavedevelopedtheinfectionhadhenotsufferedfromtheworkrelatedblister. Id.Dr.Coe acknowledged thattheinfectionarosefromthepetitioner’spenetrationoftheblisterbyinsertinganeedleintotheblister.Id.

bottomofthefoot.Id.¶23.Hebelievedthatneithertheblisternorthelancingoftheblistercontributedtotheclaimant’sfootinfection.Id.

The arbitrator found that the peti-tioner’scurrentconditionofill-beingwascausallyrelatedtotheallegedaccident.Id.¶29.Although thearbitrator foundthat the petitioner self treated, itwasnotedthatheselftreatedinasterileman-ner, but developed infection resultinginsurgeriesandamputationofhisthirdmiddletoe.Id.Therespondenthadalsoargued that the petitioner’s puncturingofhisblisterwasan injuriouspracticeundersection19(d)oftheAct,820ILCS305/19(d). The arbitrator concluded


The appellate court ultimately found that the

Commission’s decision in favor of the respondent

was against the manifest weight of the evidence.

The court noted that every natural consequence

flowing from the injury that arises out of one’s

employment is compensable in the absence of

an occurrence of an independent intervening

accident sufficient to break causal connection.

ThepetitionerwasevaluatedbyDr.Ernest Chiodo on May 25, 2012, who foundnoevidenceofcausalrelationshipbetweenthepetitioner’sworkactivitiesandresultinginfectionandamputation.He noted that the infection occurredon the top and not the bottom of thepetitioner’sfoot,butconcededthat theclaimant’srepetitiveuseoftheclutchdidcausetheformationoftheblisteronthe

thatthepetitioner’sactionswerenotaninjurious practice under section 19(d).Id.¶30.

On review, the IllinoisWorkers’Compensation Commission reversed andfoundthattheinfectiondidnotcomefrom the evidence of thework relatedblister, but rather from thepetitioner’slancingoftheblister,whichconstituted


aninterveningaccidentbreakingcausalconnection. Id. ¶ 33.TheCommissionconcluded that the petitioner’s actionsled to the infection and the resultingamputation of his left third toe.TheCommission stated “‘theCommissionfinds that the infection, and not theblister, caused [his] left foot conditionand,ultimately,theamputationofhisleftthirdtoe.’”Id.Regardingapplicationofparagraph19(d),theCommissionfoundsection 19(d) inapplicable, stating thatsection 19(d) “‘dealswith a claimantnegatively affecting his/her recovery.Itdoesnotdealwiththeclaimant’sac-tionsasthecauseofhis/herinjuriesoraclaimant’sbehaviorseveringthecausalconnectionbetweenaworkaccidentandthe claimant’s conditionof ill-being.’”Id.¶34.Anappeal tothecircuitcourtledtoanaffirmanceoftheCommission’sdecision.Id.¶36.

TheappellatecourtultimatelyfoundthattheCommission’sdecisioninfavoroftherespondentwasagainstthemani-festweight of the evidence.The courtnoted that every natural consequenceflowing from the injury that arisesoutof one’s employment is compensablein the absence of an occurrence of anindependent intervening accident suf-ficient to break causal connection.Id.¶ 42. In order for an independentinterveningoccurrencetorelievetheem-ployerfromliability,theoccurrencemust“completelybreak”thecausalchain.Id. ¶43.Thecourtalsonotedthattheworkrelatedinjuryneedonlybe“acausativefactorintheresultingcondition.”Id.¶43(citingSisbro, Inc. v. Indus. Comm’n.207Ill.2d193,205(2003)).Thecourtfoundthat under an independent interveningcause analysis compensability for theultimateinjuryordisabilityremainsthe

responsibilityoftheemployerwheretheemployee’sconditionwascausedbyaneventthatwouldnothaveoccurred“butfor”theoriginalinjury.Dunteman, 2016 ILApp (4th) 150543WC, ¶ 42 (citingNat’l Freight Indus. v. Ill. Workers’ Comp. Comm’n, 2013 ILApp (5th)120043WC,¶26.

Workers’ Compensation Report | continued

break causation the occurrencemustnot simply aggravate thework relatedcondition,butrathercauseanewinjurythat can rebut the “but for” analysis.It is apparent that only in very limited circumstanceswillevidencebesufficienttobreakcausalconnectionwherethereisaninterveningoccurrenceandinjury.

The Illinois causation standard continues to be

particularly troublesome in the defense of workers’

compensation claims. Application of the “a cause”

standard and use of the “but for” analysis with regard

to intervening occurrences significantly restricts the

respondent’s ability to defend claims on causation.

Based on the foregoing, the courtconcludedthattherecorddemonstratedthattherewasclearlya“butfor”relation-shipbetweentheclaimant’sworkrelatedblisterandsubsequentinfection.Dunte-man, 2016 ILApp (4th) 150543WC, ¶45.Thecourtthenconcludedthat“‘butfor’ the existence of thework-relatedblister,therewouldhavebeennoblisterto lance.His employment, therefore,remains acauseofhiscurrentconditionof ill-being.”Id.TheIllinoiscausationstandard continues to be particularlytroublesomeinthedefenseofworkers’compensationclaims.Applicationofthe“acause”standardanduseof the“butfor”analysiswithregardtointerveningoccurrences significantly restricts therespondent’sabilitytodefendclaimsoncausation.Under the appellate court’sanalysis in Dunteman, itwouldappearthat for an intervening occurrence to

Notwithstanding, it is unclear thatadifferentresultwouldhavearisenhadthecivilstandardforasuperseding-in-terveningcausebeenapplied.Underthetraditional civil standard, an intervening causewillnotbreakcausalconnectioniftheinterventionitselfwasreasonablyforeseeable.Kirk v. Michael Reese Hosp. & Med. Ctr, 136 Ill.App.3d945 (1stDist.1985),rev’d on other grounds,117Ill.2d507(1987).Traditionally,whetheran intervening actwas foreseeable isa jury question.Medina v. Air-Mite Devices, Inc.,161Ill.App.3d502,507(1st Dist.1987).Isitinfactforeseeableto a reasonable person that someone whodevelopsablistermightsterilizeaneedleandlancetheblisterthemselves?Isuspecttheanswerwouldbeyes.

Thomas G. DiCianni is a partner in the law firm of Ancel, Glink, Diamond, Bush, DiCianni & Kraft-hefer, P.C. He concentrates his practice in general litiga-tion, defense of govern-ment entities and public officials, municipal law,

and the representation of governmental self-insurance pools.



In January, 2016, a seismic eventoccurred in the law of governmentalliability.InColeman v. East Joliet Fire Protection District, 2016 IL 117952,the Illinois SupremeCourt abolishedthe public duty rule.The contentiousdecisionwipedoutalong-standingruleoflawthatprotectedlocalgovernmentsfrom awide swath of claims, causinga dissent that saw stare decisis in the supremecourtdependingonlyonwhohappenstositonthecourt.Tobesure,thestagehadbeensetforabigoutcome.Thecourthasflirtedwithaddressingthecontinuingviability of the public dutyrule before.See, e.g., DeSmet v. Cnty. of Rock Island, 219 Ill. 2d 497, 505(2006).And, there is a legal constructconsistent with its abolition, in that the ruleissometimesseenasaremnantofacommon lawimmunity rather thanatruedutyissue,andallgrantsofgovern-ment immunitymust derive from thelegislature.Ill.Const.1970,art.XIII,§ 4.Amicus briefs covered both sidesoftheargument,andintheendthecaseproducedaspiriteddiscussioninwhichthe lead opinion was joined by one other justice,twoothersagreedonlywiththeoutcome, and three dissented, lead byJusticeThomas’Scalia-esqueopinion.

Whilethehistrionicsofthedecisionareentertaining,thoseofuswhodefendgovernmentalentitiesmustnowsortouttheimpactofthissignificantdecision.Thepublic duty rule states thatwhilethe government offersmany servicesthat protect the general public fromdangers,itowesnotortdutytoprovide

Thomas G. DiCianniAncel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., Chicago

Municipal Law

About the Author

Requiem for the Public Duty Rule

adequate governmental services toprotect anyparticular individual fromthosepublic dangers.Thus, under thepublic duty rule, amunicipality hadnoobligationtoprotectacitizenfrombeing attacked on a city street (Huey v. Town of Cicero,41Ill.2d361,363(1968)); or a subway station (Marvin v. Chi. Transit Autho.,113Ill.App.3d172,175(1stDist.1983));fromshoddyconstructionpractices(Millerick v. Vill. of Tinley Park,272Ill.App.3d738,740(1stDist.1995));orfromarestaurant’scontaminated food (Fryman v. JMK/Skewer, Inc, 137 Ill.App. 3d 611,616(3dDist.1985)).Althoughviabledefensestosuchclaimswereavailablefromothersources,includingapplicablestatutory immunities, the public dutyrulecouldbeasilverbulletusefultokillatroublesomelawsuitatanearlystage.

So how do government defenseattorneys now approach those claims whichwouldfallwithinthepublicdutyrulepre-Coleman?Theanswerhasbeendiscussedmany times in this column,and is at the heart of theColeman decision.There is still adutyquestionin each case.Duty and immunity aretwoseparateconcepts.Acourtmustfirstfindaduty,as itwouldwithanyotherdefendant, public or private. If a dutyexists, the court determines if there issome statutory immunitywhich couldprotectthegovernmentaldefendantfromtheliabilityalleged.Coleman involved a lawsuitagainst9-1-1dispatchersandfiredepartment paramedics who responded toacallformedicalattention.Coleman,

2016IL117952,¶2.Theplaintiffallegedthat the dispatch of the call, and theresponse to it,were botched, causingthedecedent’sdeath.Id.Thetrialcourtheld that, under the public duty rule,the defendants owed the plaintiff noduty to provide adequate dispatch oremergencymedical response services.Id.¶3.Theappellatecourtagreed,butthesupremecourtreversed,sendingthecase back to the trial court for furtherproceedings.Id. The lead opinion, stare decisisbedamned,foundthepublicdutyrulemuddled,preemptiveofsituationswhere the legislature expressed anintenttoallowacauseofactionagainstthe government, and better left to thelegislaturesincepublicpolicyplayedapart in its existence and development.Id. ¶ 61.The concurrence agreedwithabolishing the rule, but instead as acommonlawimmunitydissolvedbytheIllinoisConstitution.Id.¶77.

Thesupremecourtdidnotholdthatthedefendantsowedtheplaintiffaduty,only that the public duty rule did notinitselfvitiateaduty,sothatthesamedutyprincipleswhichwouldapplytoanon-governmentalentitymustbeappliedto the governmental defendants. Id. ¶ 57.On remand, the trial courtmuststilldecideifthedefendantsowedaduty


andapplytraditionalcommonlawdutyfactors,which include forseeability ofthe injury, the likelihoodof injury, themagnitude of the burden of guardingagainsttheinjury,andtheconsequencesofplacingthatburdenonthedefendant.Bruns v. City of Centralia, 2014 IL116998,¶14.Ifthelowercourtfindsaduty,itmustthendecideifthedefendantsare immune, either under the broadand sometimes absolute immunitiesof the Illinois Local Governmentaland Governmental Employees Tort ImmunityAct, 745 ILCS 10/1-101 to8-103,orunderotherstatutes,suchastheEmergency Medical Services Systems Act(EMSA),210ILCS50/3.150,ortheEmergency Telephone System Act, 50 ILCS750/15.1.

In many cases involving Coleman-likesituationswhereanemergencycallis involved, the limited immunities oftheEMSAwill trump any potentiallyapplicable absolute immunities undertheTortImmunityAct.Abruzzo v. City of Park Ridge,231Ill.2d324,346(2008).So, that immunitywill be limited tonegligenceclaimsandtheplaintiffmayrecover ifwillful andwanton conductcould be proven. In some instances,however,iftheimmunityiswithoutanexpress exception, immunitywill beabsolute.UndertheTortImmunityAct,section4-102immunizesagovernmentforafailuretoprovideadequatepoliceprotectionorpreventacrime.Thereisnowillful andwanton conduct exception.In DeSmet, 219Ill.2dat514,thecourtassumedaduty for anend runaroundthepublicdutyrule,butappliedsection4-102 to find an absolute immunityfromliabilityfor thefailure topreventthecommissionofthecrimeallegedinthatcase.

So, the construct is more com-plicated in the post-Coleman world.Itwould seem that a traditional dutyanalysiscouldbeproblematicforpublicentities,becauseforseeabilitywilloftenbe a given.Governmental entities donot ordinarily provide a service except to prevent some general danger to the public. Police departments keep orderand prevent crime. Fire departmentsprotect people andproperty fromfiresand provide emergencymedical care.Buildingcodesareenforcedtopreventstructuraldefectsfromendangeringthepublic.Itcouldbeatoughargumentinmanyinstancestodisputeforseeabilityof injury from an inadequate govern-mental service.Nevertheless, althoughthepublicdutyrulewasabolished,thereasonwhy itwas followed in Illinoisforalmostfiftyyearshasnotchanged.So,themagnitudeofthepublicburdenofplacingadutyongovernmentsshouldbe taken very seriously by the courts.These issues cannot be punted to thejury.Astheabolitionofthepublicdutyrule puts newburdens on governmentdefenseattorneys,soitdoesforfirstlinetrialjudges.

Asofthiswriting,therehavebeenmediareportsofeffortstoresurrectthepublicdutyruleinsomeformbeforetheGeneralAssembly.Whatthatmightlooklikeisnotclearatthispoint.However,it likelywould supplement currentlyavailableprotectionswithsometypeofblanketstatutoryimmunityforafailuretoprotectpersonsfrompublicdangersthat adequate governmental servicescould otherwise have prevented.Theeffortispackagedasonetoprotectfirstresponders.Certainlyourfirstrespondersareattheforefrontofliabilityriskandaresignificantlyaffectedbyabolitionof

thepublicdutyrule,butotherareasofgovernmental services are also at risk.One example could be found in classactions filed not long ago by a largeinsurance company against hundredsof governmental entities in Illinois, incounties throughout the state, seekingsubrogationforfloodandwaterdamagelossespaid to the company’s insureds.See, e.g., Ill. Farmers Ins. Co. v. Metro. Water Reclam. Dist. of Greater Chi.,No.2014-CH-6608(Cir.Ct.CookCnty.Apr.17,2014).Thecompanyclaimedthatinlightofclimatechangeandurbansprawl,municipalitieshadadutytosufficientlyupgradeandimprovetheirstormwatermanagement systems to prevent new levelsoffloodingoverloadingthosesys-tems.Asgovernmentaldefenseattorneysteedupmotionstodismissbasedonthepublicdutyrule,thesubrogationplaintiffdecided to withdraw its class action complaint.Thatshowdownwasavoided,butneweffortstoforcemassivepublicimprovementscouldfollowColeman.

So, what has happened since Cole-mantoenlightenusabouttheimpactofthedecision?Asofnow,theansweris“nothing.”Colemanisbackinthetrialcourt, but nothing substantial hashap-penedonremand.Sofar,therealsohavebeen no appellate decisions applying the traditional duty rules to a case thepublicdutyrulewouldhavevanquished.Experience tells us that, in time, thesometimes ingenious inventiveness ofgood plaintiff’s lawyerswill advocatefor newduties.Governmental defenseattorneysmustvigorouslyandskillfullyuse traditionalduty rulesandstatutoryimmunitiestoopposetheseefforts.Itisaninterestingandbravenewworld.

Municipal Law | continued



About the Authors

Medical Malpractice UpdateEdna L. McLain and Zeke N. KatzHeplerBroom LLC, Chicago

Zeke N. Katz is an as-sociate attorney at Hep-lerBroom LLC. Mr. Katz graduated from Colgate University in 2006 with a Bachelor of Arts degree in Philosophy & Religion. He received his J.D. from Chicago-Kent College of

Law in 2014. He is admitted to practice in Il-linois. He focuses his practice in the areas of medical malpractice and insurance defense. He is a member of the American Bar Association, Illinois State Bar Association and Chicago Bar Association.

Edna L. McLain is an associate attorney of Hep-lerBroom, LLC. Ms. McLain graduated from the Univer-sity of Illinois, Champaign-Urbana, in 1991, with a Bachelor of Arts degree in English, and she received

her Juris Doctorate from the Saint Louis Univer-sity School of Law in 2002. She is admitted to the bars of Illinois, Missouri and Wisconsin and the U.S. District Court of the Northern District of Illinois. Ms. McLain focuses her practice in the areas of medical malpractice, insurance defense and toxic torts. She is a member of the Illinois Association of Defense Trial Counsel.

As the saying goes, timing is every-thing.Inthelaw,yourcaselivesordiesbytheapplicablestatuteoflimitations.Throwintothemixthestatuteofrepose,the relation-back doctrine, statutorycausesofactionandthediscoveryrule,andfiguringoutwhetherclaimsagainstyour clients are time-barred becomescomplicated.However,arulinginyourclient’sfavorcanstopacaseinitstracks.Alternatively, a finding that allows aclaimtostand,evenafterthestatuteoflimitations has ended, may permit the litigationtocontinueorbeginlongaftertheconductatissueinthecomplainthasoccurred.

TworecentopinionsintheFirstandThirdDistrictsoftheIllinoisAppellateCourtemphasizetheimpactofthestatuteof limitationswithrespect towrongfuldeath claims in medical malpractice cases.InLawler v. University of Chicago Medical Center,theFirstDistrictfoundthatawrongfuldeathclaimfiledmorethan two years after the filing of theoriginal medical negligence lawsuitsurvivedandrelatedbacktotheoriginallawsuit.Lawler v. Univ. of Chi. Med. Ctr., 2016 ILApp (1st) 143189, ¶ 23.In Moon v. Rhode, the Third District ruledawrongfuldeathclaimfiledthreeyearsafterthedecedent’sdeathwastimebarredbecausethediscoveryruledidnotapplyinwrongfuldeathcases,andthestatuteoflimitationsbegantorunwhenthe plaintiff learned of the decedent’s

Clash of the Titans: The Interaction of the Wrongful Death

Act, Statute of Repose, Statute of Limitations and the Discovery Rule

death,notofthenegligentact. Moon v. Rhode,2015ILApp(3d)130613,¶20,as modified on denial of reh’g(June15,2015),appeal allowed,39N.E.3d1004(Ill.2015).

This Medical Malpractice Update will review the rulings inLawler and Moon,respectively,inconjunctionwiththeapplicableIllinoisstatutesdiscussed,andoffer practice pointers for defensecounselwith clients facing potentialwrongfuldeathclaimsinmedicalmal-practicecases.

The Lawler Decision: Statute of Repose, Relation Back and

the Wrongful Death Act, Oh My!

OnAugust 4, 2011, plaintiff JillPrusakfiledamedicalmalpracticecase,allegingthatdefendantDr.RamaJagermisdiagnosedplaintiff’smacularpathol-ogyandfailed torecognize lymphomainher centralnervous system. Lawler, 2016ILApp(1st)143189,¶3.Plaintiffclaimedshedidnotlearnabouttheal-legedmisdiagnosisuntilatleastAugust7,2009,followingabrainbiopsy.Id.

Duringthe litigation,plaintiffdiedonNovember24,2013,morethantwoyears after the original filing of hermedicalmalpractice case. Id. ¶ 5.OnApril11,2014,SheriLawler,plaintiff’sdaughterandtheexecutorofherestate,filed an amended complaint, addingtwocountsundertheIllinoisWrongful

DeathAct. Id. ¶¶ 5-6. Subsequently,the defendantsmoved to dismiss thewrongful death claims as being timebarred. Id. ¶7. JudgeDanielGillespieof theCircuitCourt ofCookCountygranteddefendants’motionstodismisson September 17, 2014, and plaintiffappealed.Id.¶¶8-9.

Plaintiff argued that thewrongfuldeathclaimsrelatedbacktothetimelyfiledoriginalcomplaintasthedefendantshad the necessary information fromthe original missed diagnosis claim to preparetheirdefensesastotheamendedclaims.Id. ¶11.Theallegednegligentactions in both the original and amended claims were the same and presented no


hardship to the defendants. Id. Con-versely, thedefendants argued that thewrongful death countswere separateand distinct causes of action that didnotrelatebacktotheoriginalcomplaintand that the relationbackdoctrinedidnot provide an exception to the medical malpractice statute of repose,whichis a specific, substantive statute thatshouldtakeprecedenceovertherelationbackstatute.Id. ¶12.TheFirstDistrictrecognizedthiscasepresenteda“classicclashofapparentlyconflictingstatutes”andundertook to revieweachoneandtheinterplaybetweenthestatutesinthiscontext.Id. ¶17.

First, the court emphasized theWrongfulDeathAct is the exclusiveremedy available in Illinois when death occursasaresultoftortiousconductasthereisnocauseofactionforwrongfuldeathinthecommonlaw.Id.¶19.Thecauseofactionforthebenefitofthenextofkinis“derivativeoftheinjurytothedecedentand isgroundedon the samewrongfulactofdefendantwhetheritwasprosecutedby the injuredpartyduringhislifetimeorbyarepresentativeoftheestate.Theremedydependsupontheex-istence,inthedecedent,atthetimeofhisdeath,ofarightofactiontorecoveryforsuchinjury.”Id. ¶22(citingKessinger v. Grefco, Inc.,251Ill.App.3d980,987-88(1993)).Therefore,“[a]wrongfuldeathaction will lie where the deceased had a claim that was not time-barred on or beforehisdeath.”Lawler, 2016 IL App (1st)143189,¶23.TheWrongfulDeathActrequiresaplaintifftosuewithintwoyearsfromthetimeofdeath,andbecauseit is a derivative action, the time period may be impacted by other limitations provisions such as those formedicalmalpracticeclaims.

The limitations and repose periods formedicalmalpractice cases are set

out in 735 ILCS 5/13-212(a), whichspecificallystates:

Except as provided in Section 13-215 of thisAct, no actionfordamagesforinjuryordeathagainst any physician, dentist, registered nurse or hospitaldulylicensedunderthelawsofthisState,whetherbasedupontort, or breach of contract, orotherwise,arisingoutofpatientcare shall be brought morethan 2 years after the date onwhich the claimant knew, orthrough the use of reasonablediligence should have known,orreceivednoticeinwritingofthe existence of the injury ordeath forwhich damages aresoughtintheaction,whicheverofsuchdateoccursfirst,butinno event shall such action bebroughtmorethan4yearsafterthedateonwhichoccurredtheact or omission or occurrencealleged in suchaction tohavebeen the cause of such injuryordeath.

Within this framework, plaintiff’soriginalcauseofaction,filedonAugust4, 2011,was timely filedwithin thetwoyear statute of limitations and thefouryearstatuteof repose formedicalmalpracticeclaims. Lawler, 2016 IL App (1st)143189,¶3.However,theamendedcomplaintwasfiledmorethantwoyearsafterthedecedentknewofherinjury,andmorethanfouryearsafterthedefendantphysician’s allegedmisdiagnosis. Id. ¶5.However,theFirstDistrictpointedout thatplaintiffclaimedherwrongfuldeathclaimsrelatedbacktotheoriginaltimelyfiledcomplaint,andassuch,thecourt needed to analyze the effect of

applying the relation back doctrine inthisscenario. Id. ¶8.

Therelationbackdoctrine,setoutin735ILCS5/2-616(b),allowsaclaimtobefiledafterthestatuteoflimitationshasrunifthatclaimrelatesbacktotheoriginal cause of action.The relationbackstatutestatesinpartthata“causeof action . . . set up in any amendedpleading shall not be barred by lapse oftimeunder any statute . . .limitingthe time within which an action may be brought.” Lawler, 2016 IL App (1st) 143189, ¶ 31 (citing 735 ILCS5/2-616(b))(emphasisinoriginal).Thedoctrine’sexemptionfromthenormalboundaries established by the statuteof limitations formedicalmalpracticeclaims also requires that the originalcause of actionwas filedwithin thetimeprescribedbythestatuteoflimita-tions,and that thecauseofaction“intheamendedpleadinggrewoutofthesame transactionoroccurrencesetupintheoriginalpleading.”Lawler, 2016 ILApp (1st) 143189, ¶ 31.The courtrecognizedthatthedecedenttimelyfiledher medical malpractice case within the statuteoflimitationsandreposeperiodsset out in 735 ILCS 5/13-212(a). Id. ¶44.Ifshehadnottimelyfiledthecauseofactionbeforeherdeath,thenthecourtagreedthestatuteofreposewouldhaveprevented plaintiff’s wrongful deathclaims.Id.Further,plaintiff’swrongfuldeathclaimswerefiledwithintwoyearsofthedecedent’sdeath,soitwastimelyundertheIllinoisWrongfulDeathAct,740ILCS180/2(c).Id. ¶23.TheFirstDistrict found thatwhile themedicalmalpracticeandwrongfuldeathstatutesimpose time limitations with respect to thefilingof thoseclaims, the relationback doctrine may supersede thosestatutes“and recast the time inwhichtheactionmaybebrought.”Id.

Medical Malpractice Update | continued



Further,notonlymayapleadingbeamendedbeyond the statute of limita-tions, but also that amended pleadingmay include an entirely new cause ofaction as long as the original complaint was timelyfiledand thenewcauseofactionarosefromthe“sametransactionoroccurrence”asintheoriginalcomplaint.Id.¶32(citing Zeh v. Wheeler,111Ill.2d266,269-70(1986)).Thecourtreasonedthatpermittinganewanddistinctcauseofactionforwrongfuldeathintheamendedcomplaint would not prejudice thedefendantsifthedefendantshadalreadyreceivedthefactsthatformedthebasisforthenewanddistinctcauseofaction.Lawler,2016ILApp(1st)143189,¶52.Thewrongfuldeathclaimsoriginatedintheallegedmisdiagnosisofthedecedent’smacularpathology,onwhichtheoriginalcomplaintwasbased.Id.Thecourtreliedon“theidentityoftheoccurrenceratherthantheidentityofthecauseofaction”in reasoning that defendants wouldnotbeunfairlyburdenedbypermittingadditional causes of action to befiledas long as those new claims related back to theoriginal complaint, even ifthoseseparateclaimsarefiledafterthestatute of limitations had expired. Id. ¶34.Becauseoftheconsistent“operativefacts”betweentheoriginalandamendedcomplaints,theFirstDistrictfoundthatthe defendants inLawler had “been

apprised of the essential informationnecessarytoprepareadefense,”andwerenotunfairlyprejudicedbytheadditionalcauseofaction.Id.¶49.Therefore,thetake-awayfromLawler is that an addi-tionalcauseofactionundertheWrongfulDeath Act may be added in an amended complaintiftheoriginalplaintiffhadtherighttobringthatsamewrongfuldeathcauseofaction,andwasnottimebarredbythestatuteoflimitationsorperiodofreposeatthetimeofherdeath.

The Discovery Rule and the Statute of Limitations in Moon

In Moon v. Rhode,unlikeinLawler, thedecedentneverfiledalawsuitallegingmedicalmalpracticepriortoherdeath.The case centered on allegations that a ra-diologist had negligently interpreted CT scanstakenonMay23-24,2009,whichcontributedtotheinjuryanddeathofthedecedent,KathrynMoon, onMay29,2009.Moon v. Rhode,2015ILApp(3d)130613,¶¶4-5.Herson,RandallMoon,firstfiledacomplaintforwrongfuldeathandsurvivalonMarch18,2013,almostfouryearsaftershedied.Moon, 2015 IL App (3d)130613,¶8.Thedefendantsfiledamotiontodismissthecomplaintas time barred since the complaint was filedmorethantwoyearsafterdecedent’sdeath. Id. ¶ 9.Defendants’motion to

dismisswasgrantedbyPeoriaCountyCircuitJudgeRichardD.McCoy,findingthat“thedateofKathryn’sdeathwasthe‘date fromwhich the two-year statuteshouldbemeasured.’”Id.

On appeal to the Third District, the plaintiff argued that thediscovery ruleallowedhimtofilehiscomplaintwithintwo years from the time he knew orshould have knownof the defendants’negligentconduct.Id.¶12.However,thecourt addressedwhether the discoveryruleappliedtowrongfuldeathcasesandfoundthatitdidnot.Id. ¶¶16-19.

Under the common law, a per-sonalinjuryactiondoesnotaccrueuntilaplaintiffknew,orshouldhaveknown,ofaninjuryandthatitwaswrongfullycaused. Id. ¶ 19.However, theThirdDistrict explained thatwrongful deathactionsareacreationofthelegislature,not thecommon law. Id.¶17.NeithertheWrongfulDeathActnor735ILCS5/13-212(a) governingmedicalmal-practicecasesincorporateaknowledgerequirement that the limitationsperiodbeginstorunwhentheplaintiffknows,orshouldhaveknown,ofthe defendant’s wrongful conductwhich contributedtodeath. Id.¶25.Therefore, thecourtwouldnotreadintothestatuteslanguagethatwasnotthere.Id.

Whendrafting the limitations andreposeperiodsformedicalmalpracticeactions, the legislature provided in735ILCS5/13-212(a)that“aclaimantmustfileawrongfuldeathactionwithintwoyears fromthedateonwhich‘theclaimant knew, or through the use ofreasonablediligenceshouldhaveknown,or received noticed inwriting of theexistence of the injury or death forwhichdamagesaresoughtintheaction,whichever of such date occurs first.’”Id.¶18(citing735ILCS5/13-212(a))

The First District found that while the medical malpractice

and wrongful death statutes impose time limitations with

respect to the filing of those claims, the relation back

doctrine may supersede those statutes “and recast

the time in which the action may be brought.”


(emphasisadded).Thecourtexplainedthe“requiredknowledgeisofthedeathorinjury,notofthenegligentconduct.”Moon,2015ILApp(3d)130613,¶18.Further,theplainlanguageoftheWrong-fulDeathActrequiresaplaintifftofileawrongfuldeathactionwithintwoyearsfrom the date of death.See 740 ILCS180/2. If the legislaturehadwanted toprovidealimitationsperiod“commenc-ingwhen one had knowledge of thenegligent conduct, itwouldhavedoneso.”Moon,2015ILApp(3d)130613,¶18.Therefore, theThirdDistrictfoundthatcasesapplyingthediscoveryruleinwrongfuldeathactcaseswerewronglydecided and declined to follow suchprecedents. Id.¶19.Becauseitwasun-disputedthattheplaintiffinMoon did not commencehiswrongfuldeathsuitwithintwo years from the decedent’s death,thetrialcourtdidnoterringrantingthedefendants’motionstodismiss. Id.¶20.

Further, evenwhen applying thediscoveryrule,theThirdDistrictfoundthecomplaintwasuntimely.Thecourtnoted numerous delays in plaintiff’seffortspriortofilinghiscauseofaction.Hewaited eightmonths afterKathrynMoon’s death before obtaining hermedicalrecords.Id.¶6.Hethenwaited14monthsafterreceivingthoserecordsbefore submitting them to amedicalconsultantwhoopinedthatcertainotherdoctorswerenegligent.Id. It was almost fouryearsafterdecedent’sdeathbeforeplaintiffsentherCTscantobereviewedbyDr.AbrahamDachman. Id.¶8.Dr.DachmanreviewedthatCTscanonFeb-ruary28,2013,andinformedtheplaintiffthatDr.Rhodehadcommittedmedicalmalpractice.Id.Thecourtreasonedthesedelayswerenotexcusablewhenplaintiffhadsufficientinformationtodetermineifactionableconductwasinvolvedbeforethestatuteoflimitationsexpired.Id.¶27.

ThecourtinMoonknewtheirdeci-sion was not the last time that the balance betweenthestatuteoflimitationsandthediscoveryruleforwrongfuldeathclaimsmade against physicians, hospitals and other health care providerswould beevaluated in Illinois, noting that theywere“wellawarethatthisdecisioncre-atesasplitinthedistrictsand,therefore,[they]anticipateatsomepointhearingfrom the supreme court on the issue.”Id. ¶ 30. Indeed, the Illinois SupremeCourtconfirmedthispremonitionwhenitgrantedtheplaintiff’sappealinOctoberof2015,andscheduledoralargumentsforMayof2016.

Practice Pointers

Inlightoftheserecentopinions,hereareafewpracticepointersandconsider-ationstokeepinmindwithrespecttothedefenseofwrongfuldeathclaims:

• Examineyourcasesattheoutsettodetermine if plaintiff timely filedwithinthestatuteoflimitationsandreposeperiods;

• Affirmationof theThirdDistrict’sopinion in Moon v. Rhodewouldeliminate a plaintiff’s ability touse ignorance of the defendant’snegligent conduct to extend thelimitationsperiodandwouldimposeabrightlinerulethatthestatuteoflimitationsinwrongfuldeathcasesbeginstorunonthedateofdeath,whereasreversalwouldmeanbusi-nessasusual;

• Abrightlinestatuteoflimitations,suchastheoneemphasizedinMoon, stillprovidesplaintiffswithampletimetoreviewanypotentialcausesof action, while also protecting

healthcareprovidersfromexposureto liability for an indeterminateamountoftime;

• In cases similar toLawler where wrongful death claims are added,determine whether the original complaint was timely filed andwhethertheclaimsrelateback;

• Permitting additional claims to befiled against defendanthealth careproviders long after the statute oflimitationshasexpiredmayunfairlyprejudicethosedefendantsbyforc-ingdefensecounseltoeitherpreparea defense strategy with respectto unknown additional claims, oralteranexistingdefensestrategyinresponsetonewclaimsbroughtwellintothelitigation.

Conclusion

Asdefensecounselinmedicalmal-practicecases,weneedtotakeadvantageoffavorablecaselawwhenwecanandimpart the lessons learned along the way.WhiletheoutcomeinLawler was notfavorable to thedefendantmedicalproviders, the decision provided a good reviewof the various statutes defensecounselencounterinmedicalnegligencecases and illustrated theway inwhichthey operate together in a given case.In Moon, the Third District provided a goodargumentforwhyplaintiffsshouldnot be permitted to use the discoveryruletoextendthestatuteoflimitationsinwrongfuldeathcases.Hopefully,theIllinoisSupremeCourtwill agree thatthetimehascometoreadtheWrongfulDeath Act and limitations provisions narrowly and affordmedical providerssomerelief.Asthesayinggoes,timingiseverything.

Medical Malpractice Update | continued


About the Authors

Civil Practice and ProcedureDonald Patrick Eckler and Sommer R. LuzynczykPretzel & Stouffer, Chartered, Chicago

Modern litigation is dominated by discovery, not trial, as a way in whichmost cases are resolved (as thecost of discovery is a driver inmanysettlements).Socialmediaisasourceofpotentially devastating discovery that can beobtainedinaparty’sownwords,inaformatthatjurorswillbeveryfamiliarwith,andmorereliablyandatafarlowercostthanthetraditionalmethodsofsur-veillance.Theintersectionofdiscoveryand social media has become increas-ingly common.As discovery disputesrarely reach Illinois reviewing courts,this article will examine two recent non-Illinoisstatecourtdecisionstoprovideguidanceonthebestwaytoobtainsocialmediainformationregardinganopposingpartyandwhatarepotentialpitfallsinthemethodsofobtainingthatinformation.

Ye v. Cliff Veissman, Inc.

Howmuchsocialmediainformationis discoverable?Ye v. Cliff Veissman, Inc.,No.14-cv-01531,2016U.S.Dist.LEXIS28882 (N.D. Ill.Mar.7,2016)providesanexampleofwhenadiscoveryrequestforsocialmediaistoobroadtobegranted.AtissueinYe was the scope ofadiscoveryrequestfortheFacebookinformationofthedecedentandnextofkincoveringsevenyearsofsocialmediainformation prior to decedent’s death.Ye,2016U.S.Dist.LEXIS28882,at*1.

The father ofCatherineCongYe,decedent,broughtawrongfuldeathac-

New World Order: The Practical and Ethical Challenges

of Social Media Discovery

tionagainstCliffViessman,Inc.anditsemployee,KevinGoettl.Id.Theplaintiffalleged that Goettl was operating a vehiclewhichstruckandkilledCatherineas shewas standing on the sidewalk.Id. at*1.Theplaintiffalleged that thedecedent’s next of kin—Catherine’sfather,mother,andsister—hadsufferedpecuniarylossasaresultofCatherine’sdeath.Id.at*2.

Inordertoinvestigatetheclaimofpecuniaryloss,thedefendantsissuedadiscoveryrequestseekingthefollowing:

[a] full archive of any docu-ments, notes, messages, photo-graphs,oranyotherinformationfromanysocialmediaaccountheld by the decedent [and byanynextofkinofthedecedent],includinganarchivefromanyFacebook account . . . from2007 through the date of [thedecedent’s]death.

Id.at*2-3.In response, the plaintiffobjected,

maintainingtherequestwasnotlimitedin scope,andwasnon-specific,vague,andoverlyburdensome. Id. at*3.Thedefendants then issued a supplementalrequest seeking the production of the“complete archive of the Facebookpages”ofthedecedentandnextofkin,andprovidedtheplaintiffwithinstruc-tions on how to obtain the archived information requested. Id. Instead of

objecting to the supplemental request,the plaintiff argued that the originaldiscoveryrequestwassufficientandthesupplementaldiscoveryrequestwasdu-plicativeofotherdiscoveryrequests.Id.

The defendantsmoved to compelthe plaintiff to respond to the supple-mentaldiscoveryrequest.Id.at*4.Thedefendantsmaintained that the requestfor the full archiveswas relevant tothe plaintiff’s claim of pecuniary lossdue to the decedent’s death. Id. at *6.Thedefendantsarguedthatinformationcontained in the Facebook archivescould provide information pertainingto the decedent’s physical andmentalcharacteristics, habits, the relationship between the decedent and her next of

Donald Patrick Eckler is a partner at Pretzel & Stouffer, Chartered, han-dling a wide variety of civil disputes in state and fed-eral courts across Illinois and Indiana. His practice has evolved from primarily representing insurers in

coverage disputes to managing complex litiga-tion in which he represents a wide range of professionals, businesses and tort defendants. In addition to representing doctors and lawyers, Mr. Eckler represents architects, engineers, appraisers, accountants, mortgage brokers, insurance brokers, surveyors and many other professionals in malpractice claims.


Sommer R. Luzynczyk is an associate at Pret-zel & Stouffer, Chartered. She practices in the areas of general civil litigation and professional liabil-ity defense. She obtained her undergraduate de-gree from the University of

Memphis and her J.D. from The John Marshall Law School in Chicago, Illinois.


kin,andthenextofkin’sgrief,sorrow,andmental suffering. Id. at *6-7.Thedefendants argued that the decedent’smother had testified to utilizingFace-booktokeepupwithherdaughter,andthat the defendants’ limited ability topublicly view themother’s Facebookpage had demonstrated at least one postaboutthedecedent.Id. at*7.Thedefendantspointedtothetestimonyofthe decedent’s sister explaining thather last contact with the decedent was throughFacebook.Id.

orwhattherequirementswerethecourtstated that discovery is not unfettered,and Rule 26(b)(2)(C) provides thatdiscovery can be limited where it is unreasonablycumulative,overlybroad,unduly burdensome, or irrelevant. Id. at *5.The court noted that courts arereluctant to compel the production ofall-encompassingsocialmedialrequestsunlesstheyarelimitedtocontentwhichisrelevanttoaclaimordefense.Id. at *9-10.Thecourtexplainedthatthepartyseeking the disclosure of socialmedia

ofgoodcause.Likewise, the amend-ments eliminated the standard that informationisdiscoverablesolongasit is reasonably calculated to lead tothediscoveryofadmissibleevidence.Id. Despite these recent amendments, however, the court explained that itsdecisionwouldbethesameunderbothrules.Id.at*6.

Turningtothemotiontocompel,thedistrictcourtagreedthattheinformationcontainedintheFacebookarchivescouldcontainrelevantinformationtoissuesinthe case towhich thedefendantswereentitled.Id.at*7.Thecourt,however,foundthatthescopeoftherequestwasoverly broad, and noted that itwouldhavereachedthesamedecisionunderthepre-amendedrules.Id.at*6-7.Specifi-cally,thecourtfoundthattherequestwasnot limited to a relevant time period or to content which was relevant to a claim or defense in the case. Id. at *8.Thecourtfoundthat,asphrased,therequestsoughtunfetteredaccesstotheFacebookarchives.ThecourtfurtherexplainedthatwhenapartyproducesafullFacebookarchive there is no way to limit by time or contentthedatawhichisdownloaded.Id. Thecourtfurthernotedthatallowingdis-coveryofafullFacebookprofilewouldallowapartytoexploretheinformationwhichtheaccountholderhadlimitedtopublicview.Id.

While recognizing that virtuallyeverysocialmediapostcouldreflectanindividual’s emotional state, the courtdetermined that the defendants couldnot inquire into every conversation orinteractionthedecedentandhernextofkin hadwith any number of contacts.Id. at *9. The court found that thedefendants’ requestwas not limited tocontent or communications betweenspecificpartiesaboutaparticularsubjectmatter.Id.at*10.

Civil Practice and Procedure | continued

Without saying what would pass muster or what

the requirements were the court stated that discovery

is not unfettered, and Rule 26(b)(2)(C) provides

that discovery can be limited where it is

unreasonably cumulative, overly broad,

unduly burdensome, or irrelevant.

Thecourtacknowledgedthatsocialmedia data present challenges for thecourt.Specifically,socialmediadataisretainedforalongperiodoftime,andthecontactsofasocialmediaaccountholdercanbeunlimited.Therefore,socialmediadata which may be discoverable can be voluminous.Id.at*4.Thecourtnotedthatundersuchcircumstancesitischal-lenging to apply traditional discovery rulestorequestsforsocialmediacontent. Id.at*5.Thecourt recognized,never-theless, that despite these challenges a party very well may be compelled to produce socialmedia information ifcertainrequirementsaremet.Id.at*4-5.Withoutsayingwhatwouldpassmuster

datamustmake a threshold showingofrelevance,anddescribe,pursuant toRule34(b),withreasonableparticularityproviding reasonable notice as to what is beingrequestedandwhatisnot.Id.at*4.Accordingly, a more narrowly tailored request is likelywhat is necessary inordertosurviveanobjection.

Withrespecttotheshowingofrel-evance,thecourtnotedthatrelevanceisnarrowedforpurposesofdiscoveryin light of the recent amendments totheFederalRulesofCivilProcedure.Id.at*5.Specifically,apartynolongerhas the ability to obtain discovery of any information relevant to thesubjectmatterofthecaseonthebasis


In addition to not being properly limitedincontent,thecourtalsofoundthedefendants’requestwasnotlimitedtoareasonabletimeperiod.Id.at*11.Therequestsoughtinformationforasixyeartimeperiod.Id. Again,thecourtagreedthatsomeoftheinformationrequestedduring the time prior to and after thedecedent’s death could be relevant totheclaims. Id. at*12.Thedefendants,however,argued that thesixyear timeperiodrequestboreontheissueoflossofsociety.Id. Rejectingthisargument,thecourtfoundthatthedefendantsfailedtoshow that the time period was in propor-tiontotheneedsofthecase.Id. Thecourtsuggested that if the defense intendedto present evidence of the relationshipgoingsixyearsbackthentherulingmayhavebeendifferent.Id.

After denyingwithout prejudicethemotiontocompel,thedistrictcourtconcludedthatarequestforsocialmediacontentcouldbemorenarrowlytailoredthantheoneatissue.Thecourtsuggestedthat a requestwhichwas limited to areasonable timeperiod and to specificcontentrelevanttotheissuesinthecasemaybeanappropriatediscoveryrequest.Id.at13.Asaconsequenceofnotissu-ing a narrow and reasonably tailored request,thedefendantsweredeniedalldiscovery-related to theplaintiffs fromFacebookandwerenotpermittedtoissuenewrequests.

Robertelli v. New Jersey Office of Attorney Ethics

Justasadiscoveryrequestcanbetoobroad,self-helpinobtaininginformationrelatedtoaplaintifffromsocialmedia,canbefraughtwithperils.InRobertelli v. New Jersey Office of Attorney Ethics, No. 075584, 2016 N.J. LEXIS 323(N.J.Apr. 19, 2016), theNew Jersey

SupremeCourtheldthatattorneyscouldbeprosecutedforattorneymisconductinconnectionwithaccessingtheFacebookpage of an opposing party.This casearoseoutofaclaimforpersonalinjuriesafterapedestrianwasstruckbyapolicecar.Robertelli,No. 075584, 2016N.J.LEXIS323, at *1.Theplaintiff in theunderlyinglawsuitbroughtaclaimforpermanent injuries against the city, apolicedepartment,andtheofficerdrivingthevehicle.Id.at*1-2.Inthecourseofthe litigation,defense counseldirectedtheir paralegal to obtain informationabouttheplaintifffromtheinternet.Id. at*2.Oneofthesourcestheparalegalaccessed was the plaintiff ’s publicFacebookpage.Id.

Subsequently,theplaintiffchangedhis Facebook settings andmade hisprofileprivate,limitingaccesstothoseFacebook account holderswhowerehis friends. Id. Thereafter, the defenseattorneys directed their paralegal to accessandcontinuemonitoringthenon-publicpagesoftheplaintiff’sFacebookpage.Id. Theparalegalsenttheplaintiffafriendrequest,butdidnotinformtheplaintiff that shewasemployedby thedefendants’ attorneys or that shewasinvestigating him for purposes of thelawsuit. Id. The plaintiff accepted thefriend request, allowing the paralegaltoaccessthenon-publicportionsoftheplaintiff’sFacebookpage.Id.

Theplaintifffirstlearnedofthede-fenseattorneys’actionsduringdiscoveryin theunderlying lawsuit andobjectedto the use of documents the paralegalobtained from his Facebook page atthetimeoftrial.Id.at*2-3.Thereafter,the plaintifffiled a grievancewith theethics committee alleging violations of theProfessionalRules ofConduct.Specifically, the plaintiff alleged thatthe attorneys engaged in unauthorizedcommunicationwitharepresentedpartywhen the paralegal sent the plaintiff afriend request. Id. at *3. The ethicscommitteedidnotdocketthegrievanceand concluded that if the allegationswereproven theywouldnotconstituteunethicalconduct.Id.

The plaintiff later contacted theOfficeofAttorneyEthicsandrequestedthe grievance be reviewed.After aninvestigation, theOffice ofAttorneyEthics filed a complaint against thedefendants’ attorneys. The attorneysrequestedtheOfficeofAttorneyEthicsto withdraw the complaint, as the ethics committee had declined to docket thegrievance.Therequestwasrefusedandthedefenseattorneysfiledacomplainttoenjoin theOfficeofAttorneyEthicstoprosecutethematter.Id.at*3-4.Thetrial court dismissed the complaint,finding that the supreme court and itsethicsbodieshadexclusivejurisdiction


The supreme court held that the Office of Attorney Ethics

had authority to review a grievance after the ethics

committee has declined to docket a grievance, and ruled

that the alleged misconduct could be prosecuted.


over attorneymisconductmatters.Theappellatecourtaffirmedthetrialcourt.Id. ThesupremecourtheldthattheOfficeofAttorneyEthicshadauthoritytoreviewa grievance after the ethics committeehasdeclinedtodocketagrievance,andruledthattheallegedmisconductcouldbeprosecuted.Id.at4.

This case not only highlights the prohibition against contacting a party knowntoberepresentedbycounsel,butalsothedutyofthelawyerstoproperlysupervisenon-attorneystaff.Ill.RulesofProf’lConduct4.2and5.3.

Practice Pointers

Thereareavarietyofmethodswhichcanbeutilizedtoobtainsocialmedia.Aforensicdatacollectorcouldberetainedtoperformaninternetmininginvestiga-tion.During suchan investigation, theconsultantsearchesallsocialmediasitesforaccountsheldbytheopposingpartyandpreparesacomprehensivereportoffindingsandpreservesanypublicsocialmediadatawhichmaybelocated.Suchaninvestigationisbestundertakenearlyin the litigation.Anothermethod is toeitherhavetheopposingpartystipulatetoproviding,ormove thecourt foranorder compelling production of, hisor her username and password for allsocialmedia accounts for examinationby an independent third party forensicdatacollector.Thistypeofinvestigationcoulduncovernon-privateandarchivedinformation and allows the consultantto utilize software to obtain the dataandwould be useful in the event theopposing party has altered social media information or has privatized socialmedia accounts.Another method toensure social media information ispreserved is by sending the opposing partyaletterdemandingpreservationof

allsocialmediadatatoensurethattheparty does not delete or alter social media information. Finally, formal discoveryrequestscanbeutilizedtoobtainsocialmediainformation.

If the case does not justify theexpenseofhiringaforensicexpert,andthedecision ismade to use traditionaldiscovery tools in order to avoid costly and time consuming discovery fights,whenutilizingtraditionaldiscoveryre-questsonemustensurethattherequestsare appropriately limited in time and content.TheYecaseillustratesthechal-lenges in applying traditional discovery rules to requests for socialmediadatawhichwould result in the productionof voluminous information.ReferencetotheproportionalityofRule201(c)(3)wouldlikelybelookedatbyanIllinoisstate court to determine extent andmeans by which social media discovery wouldbesought.Althoughtherequestin that case was denied as phrased, the Ye court strongly suggested that hadthedefendantsinthatcasebeenabletodemonstrate that the time frame in therequest could have revealed relevantinformation,therequestmighthavebeengranted.Ye demonstrates that the party seeking the socialmedia information

must establish that the content soughtisrelevantandthetimeframerequestisreasonable.Itislikelythatatimeframeofayearor twobefore the incident inquestionandforatimeaftertheincidentcoincidingwiththerecoveryoftheinjuryaftertheincidentwouldbereasonable.Inawrongfuldeathcaseinwhichgriefisanissue,severalmonthstoayearafterthedeathwouldlikelybeseenasreasonable.

Aboveall,counselmustkeeptheirethicaldutiesinmindwhenconductinganinternetinvestigationofanopposingparty.Though Illinois has not taken astand on this issue, sending a friendrequest to an opposing partywho isrepresentedbyanattorney is likelyanunauthorizedcommunicationwitharep-resentedpartyandshouldbeeschewed.Thatsaid,accessingpublicinformation,without“friending”arepresentedparty,hasbeenfoundtobeproper.N.Y.StateBarAss’n,EthicsOp.843 (2010); see also Ill.RulesofProf’lConduct4.2and5.3.Socialmediainvestigationisanessential part of discovery.Doing thatinvestigationethicallyisjustasessential.

Above all, counsel must keep their ethical duties in

mind when conducting an internet investigation of an

opposing party. Though Illinois has not taken a stand

on this issue, sending a friend request to an opposing

party who is represented by an attorney is likely an

unauthorized communication with a represented

party and should be eschewed

Civil Practice and Procedure | continued



About the Author

Elizabeth K. BartonAncel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., Chicago

Young Lawyers Report

Elizabeth K. Barton is an associate with the Chi-cago office of Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., where she is a member of the firm’s litigation group. Her practice is focused on de-fending government enti-

ties in civil litigation, with a primary emphasis in the defense of Section 1983 allegations of police misconduct. Ms. Barton received her J.D. from The John Marshall Law School and her undergraduate degree from the University of Iowa, with honors. Ms. Barton is a member of the IDC Young Lawyers Division.

As a young lawyer, you likelyalreadyunderstandthepowerofsocialmedia, and like thousands of otherlegal professionals youwould like toutilizesocialmediasitestoexpandyourprofessionalpresence.Whilepromotingyourself and yourwork online can bebeneficial,youmayfindyourselfinanethicalminefield.Take amoment toconsidertheserecommendationsbeforeyoupost!

Social Media Marketing: Do This, Not That

make sure your profile on yourfirm’swebsite is up-to-date and interesting.Includearecentandprofessionalphoto,whichwill increase your views, espe-ciallyonprofessionalsocialmediasites.

Consider crossmarketingonyourvarious accounts. If youwrote a blogarticle, post the link onTwitter, Face-book, and LinkedIn.This also helpsincrease the traffic coming in to yourblog.For example, someonebrowsing

Do Emphasize Your Accomplishments

Young lawyers can be hesitant toself-promote,andtheymayfeelinsecureabout having only a fewhighlights atthis point in their career. Even so, donot be afraid to be your own biggestsupportertogetrecognized.Aswithmostthingsonline,keep itsuccinctbutalsodescriptive.Anyrecentcasewins,fromadispositivemotiontoatrial,shouldbehighlightedonyourprofile.Butconsideryour career accomplishments to havea shelf-lifeandkeep thehighlight reelcurrentandrelevant.

Additionally,youmustbemindfulof potential confidentiality issues. Forexample, ifyou recentlysettledacaseforafavorableamountandyouwanttohighlightthatcaseonyourfirmwebsite,re-read the settlement agreement and check for confidentiality provisions.Betteryet,negotiatetermstoincludeinthe agreement regarding what each side canpostonline.

You aremost familiarwith yourwork,soitshouldnotbehardtohigh-lightafewrecentpositiveprofessionalachievements.Again, thinkaboutyour

Are you looking for new clients? Start a blog or

contribute to an existing one, and send out email blasts.

Are you maintaining relationships with current clients?

Create a professional profile on Facebook or

Twitter and build a network

Do Tailor Your Approach

Withsomanydifferentsocialmediaoutlets, oneway you can stand out isby customizing your online presence.Thinkabouthowyouwanttouseeachmediumtoachieveaspecificgoal.Areyoulookingforajob?FocusonupdatingandbuildingyourLinkedInprofile.Areyoulookingfornewclients?Startablogorcontributetoanexistingone,andsendout email blasts.Are youmaintainingrelationshipswithcurrentclients?Createa professional profile onFacebook orTwitter and build a network.Always

Twittermayseeyourtweet,clickonthelink,readyourblog,andsomethingelseonyourblogmaycatchtheperson’seyeandresultinthepersonfollowingyourprofile.

Treat all of your profiles like anadvertisement in the sense that youshould give your audience all of theinformationtheywillneedtocontactyouandunderstandwhatyoudo.Remembertoincludeyourfullname,whereyouarelocated,yourcontactinformationand/oralinktoyourwebsite.Firstimpressionsare always important, even on social media.


audience.What do theywant to knowaboutyou?

Don’t Forget to Promote Those Around You

Ifapartnerhasabigwin,itmakesyourfirm(andyou)lookgreat!Thesameistrueforyourformerclassmates–theirsuccessesreflectpositivelyonyourlawschool and thosewho graduated fromit.Youshouldpromotethesuccessesofthosearoundyou,especiallysincetheycouldrepaythefavor.

Onequickwaytodothisistolinkto every person in your office,whichexpandsyournetworkmorethanyoucanimagine.Thatway,youwillbeabletoeasilysharepostsandupdatesfromyourcolleagues.Another is to follow thosewhofollowyou.Encourageengagementon your socialmedia pages by lettingyour audience know you are payingattention.Congratulate a colleague ontheir promotion or the newest lawyer at yourfirmonyourTwitterandLinkedInaccounts, showinggrowthwithinyourfirm.Sharealinktoanarticleoneofyourformerclassmatespublished.Thisservestoincreasepublicityforyourfirm,youralmamater,andultimatelyyou.

Do Post About Professional Development

If you or an organization you areinvolved in(hint: IDC) isputtingonapresentation or publishing something,postthedetailsonsocialmedia.Youhavethe potential to reach so many people whomaybeinterestedinattendingyourseminarorreadingyourmaterials.Afteryour presentation is done or article ispublished, update your online resume,nomatterhowsmall thecirculationoraudiencemayhavebeen.Asyoudomoreprofessionaleducationengagements,you

will build a strong résumé andmaybeeven earn credibility as an expert in that topic. If you have not done either ofthose yet, consider attending a seminar andwritingaquickpostaboutwhatyoulearned or found interesting,which atleast emphasizes your commitment toprofessional growth and development.Ifyoushareyourblogpost,don’tforgetto include a link on all of your socialmediaaccounts.

Don’t Highlight Controversial or Political Material

Oneway to increase your onlinepresencewithmorefollowersistopostindustry-specificnewsarticles,reports,andvideosregardingtopicsyourclientsandcolleaguescareabout.Italsohelpstomakethoughtfulcommentsonarticlesyour connections post. Nevertheless,bemindfulthatnoteveryonewillshareyouviewpoint and itmight be best tosteer clear of overtly controversial orpolarizing commentary.After all, youwantthefocustobeonyourprofessional contributions and not your personalopinions.

Do Be Mindful of Professional Ethics

Whilesocialmediaprovidesagreatforum for attorneys to stay in contactand connectwith clients and businessassociates, the rules of professionalconductalwaysapply.Aneasyway toprevent ethical dilemmas is to use ap-propriatedisclaimerstoavoidsituationslike inadvertently creating attorney-client relationships.Always rememberthat socialmedia presents countlessethical circumstances for attorneys,so you should frequently update yourknowledgeonhowsocialmediaimpactsyourpractice.

Young Lawyers Report | continued



Association News

IDC Officers and Directors Elected, Appointed

Nicole D. MilosofCremer, Spina, Shaughnessy, Jansen & Siegert, LLC, Chicago,was elected 2016-2017 IDCSecretary/TreasurerandtoapositionontheExecutiveCommitteeattheAnnualMeetingheldJune24,2016.Ms.MiloswillmoveuptheExecutiveCommitteeladdertobecomepresidentinJune2020.

Other officers on the ExecutiveCommitteeincludePresident R. Mark Mifflin ofGiffin, Winning, Cohen & Bodewes, P.C., Springfield; PresidentElect Michael L. ResisofSmithAmund-sen LLC,Chicago;FirstVicePresident Bradley C. NahrstadtofLipe, Lyons, Murphy, Nahrstadt & Pontikis, Ltd., Chicago; and SecondVice PresidentWilliam K. McViskofJohnson & Bell, Ltd.,Chicago.

Thefollowingmemberswereelectedtothree-yeartermsontheIDCBoardofDirectors:Denise Baker-SealofBrown

David A. Herman ofGiffin, Win-ning, Cohen & Bodewes, P.C., Spring-field;Anthony G. Joseph ofHay & Oldenburg, LLC,Chicago;andThomas L. O’CarrollofHinshaw & Culbertson LLP, Chicago were appointed to serve as DirectorsatLarge.

IDC Presents Awards

At theAwards Luncheon, sev-eralmemberswererecognizedfortheirservice.Linda J. Hay and Anne M. Oldenburg ofHay & Oldenburg, LLC, Chicago,were both recognizedwiththeDistinguishedMemberAward, andElizabeth K. Barton ofAncel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., Chicago and Stacy Crabtree ofHeyl, Royster, Voelker & Allen, P.C., Peoria,were both recognizedwith theRisingStarAward.Gordon R. Broom and Jeffery S. Hebrank ofHeplerBroom

& James, P.C.;Elizabeth K. BartonofAncel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C.,Chicago;Laura K. BeasleyofJoley, Oliver & Beasley, P.C., Belleville;Adam C. Carter ofCray Huber Horstman Heil & VanAusdal LLC,Chicago;Bruce Dorn ofBruce Farrel Dorn & Associates,Chicago;andDonald J. O’Meara, Jr. ofPretzel & Stouffer, Chartered,Chicago.

Benjamin J. Samuelson ofBetty, Neuman & McMahon, P.L.C., Davenport, wasappointedtofilltheboardpositionleftvacantwhenNicole D. Milos was electedSecretary/Treasurer.

John P. Heil, Jr.ofHeyl, Royster, Voelker & Allen, P.C., Peoria, was ap-pointed to aboardposition left vacantwhen Joseph G. Feehan ofHeyl, Royster, Voelker & Allen, P.C., Peoria resigned from theBoard ofDirectorsinMay.


Association News | continued

President’s Awards Presented to Gordon R. Broom and Jeffrey S. Hebrank

LLC, Edwardsville were recognizedwith President’sAwards;Patrick W. Stufflebeam ofHeplerBroom LLC, Edwardsvillewas recognizedwith aPresident’sCommendation;andDonald Patrick Eckler ofPretzel & Stouffer, Chartered, Chicago,was recognizedwiththeVolunteeroftheYearAward.

Meritorious ServiceAwardswerepresented to Stephen G. LoverdeoftheLaw Office of Steven A. Lihosit,Chicago;Paul R. LynchofCraig & Craig, LLC, Mt.Vernon;andScott D. StephensonofLitchfield Cavo LLP,ChicagofortheirserviceontheIDCBoardofDirectors.

TheMeritorious ServiceAwardwas also presented to Elizabeth K. BartonofAncel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., Chicago, forherserviceastheChairoftheYoungLawyersDivision;Jeremy T. Burton ofLipe, Lyons, Murphy, Nahrstadt & Pontikis, Ltd.,Chicago,forhisserviceasEventsCommitteeChair;R. Mark Cosimini ofRusin & Maciorowski, Ltd.,Champaign,forhisserviceastheLegislative Committee Chair;Brad A. Elward ofHeyl, Royster, Voelker & Allen, P.C., Peoria, for his serviceas the IDC QuarterlyEditor inChief;John D. Hackett ofCassiday Schade LLP, Chicago, for his service as the

InsuranceCommitteeChair;Linda J. HayofHay & Oldenburg, LLC, Chicago forherserviceastheIDC Survey of Law EditorinChief;Mark J. McClenathan ofHeyl, Royster, Voelker & Allen, P.C., Rockford, for his service as theChairof theConstruction LawCommittee;and John J. O’Malley of Seyfarth Shaw LLP,Chicago,forhisserviceastheCommercialLawCommitteeChair.

President Troy A. Bozarth pre-sentedPresident’sAwards toGordon R. Broom and Jeffrey S. HebrankofHeplerBroom LLC, Edwardsville at the IDCAnnualMeeting andAwardsLuncheoninJune.

In honoringMessrs. Broom and Hebrank, PresidentBozarth remarkedthat “Gordon and Jeff are true giantsof the defense bar. They each havecontributed somuch to the IDCas anorganizationanditsmissionofadvocat-ingforafreeandfaircivilcourtsystem.Theytrulydeserveourgratitudefortheir

leadershipandtirelessadvocacyfortheruleoflawandciviljusticesystemthatservesusall.”

Inacceptingtheaward,Mr.Broomstated,“ItwasreallymeaningfultometohavebeenrecognizedbyTroyBozarthasapersonwhohasbeenaninfluenceinhislife...andwho,alongwithJeffHebrank,has been a mentor to him in both his professional and IDC career.One ofthejoysofacareerinthisprofessionishaving the opportunity to help younglawyersadvance theircareers.Whenayoung lawyer succeeds aswell as has




DRI Recognizes Bozarth

Troy A. Bozarth ofHeplerBroom LLC, Edwardsville, was recognizedat the IDCAwardsLuncheonbyDRIExecutiveDirector John R. Kouris and DRI North Central Region Direc-tor Matthew E. Yde with the DRI Exceptional Performance Citation.This citation recognizesMr.Bozarthforhavingsupportedandimprovedthestandards of education of the defensebar and for having contributed to theimprovement of the administration ofjusticeinthepublicinterest.

TroyBozarth, their success is rewardenough.Needlesstosay,IamveryproudofTroy.However,havingsaidthat,itisa specialmomentwhen such a persondoes say thank you. I appreciated thekindwordsandrecognition.Itwasalsoterrifictomeetthenewofficers.TheIDCcontinues to be a viable and valuablerepresentative of the trial bar. I andotherslikeme,whohavebeeninvolvedin years past, continue to be pleasedwithIDC’sprogressandthequalityofitsleadership.”

Inacceptingtheaward,Mr.Hebrankstated,“Itisextremelyrewardingtofindoutthatyourpartnerandpresidentandalongwiththeorganizationfeelthesamewayaboutyouasyoufeelaboutthem.My partner,TroyBozarth, ExecutiveDirector, SandraWulf, and IDChavemeant somuch tome,my career,myprofessionandmyfirmthattheyoughttobegettingtheawardandnotme.IDCistheeliteoftheeliteinthecivillitigationtrialdefensebusiness.”

Gordon R. Broom is apartnerofHeplerBroom LLC, Edwardsville.Mr.Broomfocuseshispracticeontrialsin-volvingpracticallyeveryareaofpersonaland bodily injury litigation, includinglawsuits involving theStructuralWorkAct,medicalmalpractice, products li-ability, maritime law, as well as general negligence.Mr.Broom is involved innumerous organizations including theIllinoisAssociation ofDefenseTrialCounsel,wherehe served aspresidentin 1996;American, Illinois State andMadison County BarAssociations;AssociationofDefenseTrialAttorneys,whereheservedaspresidentin2005;andtheAmericanBoardofTrialAdvocates.In addition,Mr.Broom is aFellowoftheAmericanCollegeofTrialLawyers.

Jeffrey S. HebrankisapartnerofHeplerBroom LLC, Edwardsville.Mr.

Hebrank’strialexperiencecoversmanyareas of personal injury and bodilyinjury litigationwith special emphasisin theareasof asbestosand toxic tort.Mr.Hebrankislicensedtopracticelawin both Illinois andMissouri and hastried numerous jury cases to verdictthroughoutthecountry.HeisadmittedtopracticeinIllinois,Missouri,andtheFederalDistrictCourtsfortheSouthern,Central,andNorthernDistrictsofIllinoisaswellas theEasternDistrictofMis-souri.HehasrepresentedclientsbeforetheIllinoisSupremeCourt.Agraduateof theUniversity ofDayton and St.LouisUniversity School of Law,Mr.HebrankisapastpresidentoftheIllinoisAssociation ofDefenseTrialCounselandisamemberoftheIllinoisStateBarAssociation,DefenseResearchInstitute,Claims and Litigation Management Alliance,andtheMadisonCountyBarAssociatior.



Elizabeth K. Barton and Stacy E. Crabtree Receive 2016 IDC Rising Star Awards

IDC Distinguished Member Award Presented to Linda J. Hay and

Anne M. Oldenburg

The 2016 IDC DistinguishedMember Award was presented to two exceptionalmembers of the IllinoisAssociationofDefenseTrialCounsel.

Chicago attorneys and partners at Hay & Oldenburg, LLC, Linda J. Hay and Anne M. Oldenburg have distin-guished themselves throughout theircareers,bothwiththeIDCandnumerousotherorganizations.

IDC President Troy Bozarth ofHeplerBroom LLC remarks“AnneandLindahaveeachdonesomuchfor theIDCandweareproudtorecognizethemas this year’sDistinguishedMembers.Both Linda and Anne have served the IDCinvariousrolesovertheiryearsasIDC members and their leadership has helpedbringtheIDCtowhereitistoday.It is trulyfitting that longtime friendsand law partners, Anne and Linda, are recognizedinthesameyearastheIDC’s2016DistinguishedMembers.”

“Wearehonoredandhumbledtore-ceivethisaward.ThepriorrecipientsareatestamenttotheunsurpassedlevelofskillandintegrityoftheIDCdefensebarmembership.TheIDChasbeenintegraltoourcareers,guidingourprofessionaldevelopment, driving our networkingopportunities,andforginglongstandingrelationshipswithcolleaguesaswellasclients,”saidMss.HayandOldenburg.

Linda J. Hay isanequitypartnerat thefirmofHay & Oldenburg, LLC.Ms.HayreceivedherB.A.degreefromtheUniversityofIllinoisatChampaign-Urbana(1982)andherJ.D.degreefromTheJohnMarshallLawSchool(1986).She is admitted to the Illinois State

Bar, as well as the United States Dis-trictCourtfortheNorthern District ofIllinois.Sheisamember of theFederalTrialBar.

She has tried numerouscasestosuccessfulverdic,

andhandledmanycasesthroughsuccess-fulappeal.Ms.Hayisactivelyinvolvedindefensebarorganizations,suchastheAssociationofDefenseTrialAttorneys,theIllinoisAssociationofDefenseTrialCounsel,theDefenseResearchInstitute,theAmericanBarAssociation(LawyersProfessionalLiability),andboththeIlli-noi,StateandChicagoBarAssociations.

Anne M. Oldenburg is an equitypartneratthefirmofHay & Oldenburg, LLC.Ms.OldenburgreceivedherB.A.degree, cum laude,fromRiponCollegeand received her J.D. degree, withdistinction, fromThe JohnMarshall

LawSchool.Sheis admitted to the Illinois State Bar and the United States District Cour t fo r theNorthern, Cen-tral,andSouthernDistricts of Illi-nois. She is also

admittedtotheFederalTrialBar.Ms. Oldenburg is a member of

numerous bar associations including:The IllinoisAssociation of DefenseTrial Counsel (Past President, Ex-ecutiveBoardofDirectors,Co-ChairofDiversity in Participation Committee, Faculty—TrialAcademy,Member ofMedicalLiabilityCommittee, andFallSeminarCommittee),theAssociationofDefenseTrialAttorneys,andtheDefenseResearchInstitute.

Ms.Oldenburg’sotherprofessionalaffiliationsincludetheAmericanSocietyofHealthcareRiskManagementandtheChicagolandHealthcareRiskManage-ment Society.Ms.Oldenburg sits onvarious healthcare boards. She haspublished and lectured extensively onissues relating to healthcare litigationandriskmanagementissues.

The 2016 IDC Rising Star Award waspresentedtotwooutstandingmem-bersthisyear—Elizabeth K. Barton and Stacy Crabtree.

Chicago attorney Elizabeth K. BartonofAncel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C. distin-guishedherselfthroughherinvolvementwith theYoungLawyersDivision. Inaddition she has been actively involved

withtheIDCBoardofDirectors,Spiritof theSeason fundraiser, coordinatingseminarsforyounglawyers,andwritingfortheIDC Quarterly.

“IamhonoredtobereceivingsuchanimportantawardasaRisingStar.IamgratefulforwhattheIDChasgivenme. IlookforwardtoservingontheBoardandgivingbacktothistremendousgroupoflawyers,”saidMs.Barton.



Donald Patrick Eckler Named

IDC Volunteer of the Year

President Troy A. Bozarth ofHeplerBroom LLC, Edwardsville, remarks“Lizcontinuestorelentlesslywork to better the IDC and the legalcommunity. Liz is such awonderfulambassador for the IDC and hasrepresented us sowell her in Illinoisaswellasnationally.ShetrulyisastarfortheIDC.”

PresidentBozarth commented thatthe awards committee was also very impressedwith thework of StacyE.Crabtree ofHeyl, Royster, Voelker & Allen, P.C.,Peoria.

“Stacy has contributed somuchtotheIDCoverthepastseveralyears.Stacy’sworkonbehalfoftheIDCandthe legal community has set her apartfromherpeersandweareproudtonameheranIDCRisingStar,”saidPresidentBozarth.

Ms.Crabtree distinguishedherselfby serving as a columnist for the IDC Quarterly since2014. In addition, sheis a co-founder of herfirm’s associateskills training program, and is activein a number of associations and legaleducationprograms.Ms.Crabtreewas

also named to the Leading Lawyers Emerging Lawyers list in 2015 and 2016 and received the “40 LeadersUnderForty”awardfromInterBusiness Issues magazinein2014.

“IadmiresomanyofmycolleaguesatIDCwhoshareconcernforthefutureofthelaw,arewillingtotakeaction,andalwaysmaintaincivility.So,toreceivethis recognition from an associationthat Ihold insuchhighregard is trulyanhonor.Thankyou,IDC,forcreatingopportunities for young attorneys tocontributeandberecognizedthroughoutthestate,”remarkedCrabtree.

Elizabeth K. Barton is a litigation associate at Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C. in Chicago.ShegraduatedfromTheJohnMarshall LawSchool in 2008,whereshewasaneditoron theLawReview.Ms. Barton representsmunicipalitiesand local governmental entities in civil rightslawsuits.Herclientsincludecities,villages,parkdistricts,schooldistricts,andindividualgovernmentemployees.

Stacy E. Crabtree is an associate in thePeoriaofficeofHeyl, Royster, Voelker

& Allen, P.C.Sherepresentsbusinesses,not-for-profits,andgovernmentalentitiesin commercial and tort litigation in state andfederalcourt.Shealsoassistsclientswith commercial transactions, corporate governance, and compliance issues.Stacy received her J.D., summa cum laude, fromFloridaCoastal School ofLawandB.A.,summa cum laude,fromBradleyUniversity.

Donald Patrick Eckler, a partner with the ChicagolawfirmofPretzel & Stouffer, Chartered has been named the 2016 IDCVolunteer of theYear.Mr.Ecklerwasrecognizedforhisoutstand-ingcontributionstotheIDC,specificallyastheyrelatetotheadvocacyeffortsoftheassociation.

“IamhonoredtobeabletoservetheIDCinitseffortstopromotefairnessandjusticeforallcivillitigantsinIllinois”saidMr.Eckler.


Association News | continued We would like to thank the following sponsors for their generous support of the

IDC Annual Meeting and Awards LuncheonIDCPresidentTroyBozarthcom-

mented that “Pat’s service to the IDCandhelp to its leadershipwas invalu-able.Patspearheadedmultiplefrontlineadvocacyissuesofgreatimportancetothe IDC, its membership and the civil justice system.Hisworkonbehalfofthe IDC has set him apart from hispeers. The IDC and itsmembershiparegratefulforselflessmemberssuchasPat.Hiseffortsthisyearhavetrulymadeanimpact.”

IDCExecutiveDirectorSandraJ.Wulfsaid“Pat’sinvolvementintheas-sociationissecondtonone.Hetacklednumerous projects this year alone—fromwritingfortheIDC Quarterly and IDC Survey of Law to presenting a CLE seminarforourmemberstoadvocatingonourbehalfwiththeIllinoisGeneralAssembly.Becauseofthecommitmentofmembers like Pat,we aremakinggreatstrides infurtheringourmissionandimprovingthepracticeoflaw.”

Mr. Eckler is a partner atPretzel & Stouffer, Chartered, handling a wide variety of civil disputes in stateand federal courts across Illinois andIndiana.Hispracticehasevolvedfromprimarily representing insurers incoveragedisputestomanagingcomplexlitigation in which he represents a wide rangeofprofessionals,businesses,andtortdefendants.His recordof successincludesnumeroussummaryjudgments,several successful trial results, andmultiplefavorableappellateresults.

In addition to representing doctors and lawyers,Mr. Eckler representsarchitects, engineers, appraisers, ac-countants,mortgagebrokers,insurancebrokers, surveyors, andmany otherprofessionals inmalpractice claims.His commercial litigation experienceinvolvescomplexcontractdisputesanddefense of class-action lawsuits.Mr.Eckler’scoveragepracticeforinsurersand the insured involves commercialgeneral liability and personal lines policies,issuesinvolvingthedutiestodefend and indemnify, bad faith, andtheapplicationofexclusions.His tortdefense work involves representing

We would like to thank Engineering Systems Inc

and Sikich for their sponsorship of the

IDC Adjuster’s Seminar

nursing homes and long-term-carefacilities, productmanufacturers anddistributors, trucking concerns, andpremises owners.Drawing on his ex-perienceasacollegebasketballcoach,PathasalsorepresentedcoachesbeforetheNCAACommitteeonInfractions.

Mr.EcklergrewupinCoralSprings,Florida, beforemoving toChicago toattendtheUniversityofChicago,wherehe earned his degree in Near Eastern Languages and Civilizations with afocus on ancient Egyptian language.ReturningtoFlorida,Mr.Ecklertaughthistory and coached high school and collegebasketballforthreeyearsbeforeattending law school at the University ofFlorida.Inhisfinalsemesteroflawschool, Pat served as a certified legalinternwiththePublicDefenders’Officeof the 8th Judicial Circuit,where herepresenteddefendantsinmisdemeanorcriminal cases from first appearancethroughtrialandsuccessfullytriedtwojurycases.


Annual Meeting



Annual Meeting | continued


IDC in Action


The IDC is proud to welcome the following members to the Association:

Karin AndersonO’Hallaron, Kosoff, Geitner & Cook, P.C.,Northbrookn Sponsor:Julie Bruch

Chantel R. BielskisCicero, France & Alexander, P.C.,Rockford

Knute R. BleyerBleyer & Bleyer, Marion

James A. Bock, Jr.Greensfelder, Hemker & Gale, P.C., Belleville

Carol CesarettiQuintairos, Prieto, Wood & Boyer, P.A., Chicago n Sponsor:TroyBozarth

Dominique D. de VasteyGreensfelder, Hemker & Gale, P.C., Belleville

Anne Marie FitzpatrickGreensfelder, Hemker & Gale, P.C., Belleville

Abbey FurlongLane & Waterman, LLP, Davenport

Robert S. HungerChittenden, Murday & Novotny LLC, Chicago

Lance JonesHeplerBroom LLC,Springfield

Andrea D. MasonLane & Waterman, LLP, Davenportn Sponsor:Ian Russell

Emily J. PerkinsHeyl, Royster, Voelker & Allen, P.C., Peoria

Raymond PersinQuintairos, Prieto, Wood & Boyer, P.A., Chicago

Adam ShapiroHay & Oldenburg, LLC, Chicago

Thorn SmithAttorney at Law, Peoria

George SmyrniotisChicago Park District, Chicago

Lindsay WalshLaBarge, Campbell & Lyon, LLC, Chicago

THE IDC MONOGRAPH:

A Primer on Recent Cases Impacting Workers’ Compensation Defense

IDC QUARTERLY | Volume 26 Number 3

Vincent M. BoyleHeyl, Royster, Voelker & Allen, P.C., Peoria

Stacy E. CrabtreeCaterpillar, Inc., Peoria

Brad A. ElwardHeyl, Royster, Voelker & Allen, P.C., Peoria

Joseph K. GuyetteHeyl, Royster, Voelker & Allen, P.C., Urbana

Dana J. HughesHeyl, Royster, Voelker & Allen, P.C., Peoria

Brett E. SiegelHeyl, Royster, Voelker & Allen, P.C., Springfield

Lynsey A. WelchHeyl, Royster, Voelker & Allen, P.C., Rockford

M-2 | IDC QUARTERLY | Monograph | Third Quarter 2016

A Primer on Recent Cases Impacting Workers’ Compensation Defense

Workers’ compensation law has been a leading political and economic issue in Illinois over the past decade. In 2005, the Illinois General Assembly passed and the governor signed into law the Workers’ Compensation Reform Act of 2005, which ushered in utilization reviews, medical fee schedules, increased mini-mum rates for temporary total disability (TTD) and permanent partial disability (PPD), enhanced death benefits, and introduced maintenance and temporary partial disability (TPD) benefits.1 The Reform Act of 2005 was the first major overhaul of the Act since 1975. A second major amendment to the Act occurred in 2011, which among other things enhanced the 2005 utilization review provisions, capped wage differential awards at five years or age 67, whichever is later, and adopted a new method for establishing permanency based in part on the American Medical Association’s (AMA) “Guides to the Evaluation of Permanent Impairment, Sixth Edition.”2

Following the election of Governor Bruce Rauner, additional reforms were proposed, but not enacted. These propos-als included legislation providing that an employer shall not be required to pay TPD benefits to an employee who has been discharged for cause,3 modifications for calculating average weekly wage,4 clarification that a shoulder injury is an injury to an arm and a hip injury is an injury to a leg,5 redefining who is a traveling employee,6 and modifications to the causal relationship standard to change employment from being “a” factor to a “major contributing cause” of the workers’ injury.7

Despite the General Assembly’s inability to enact promised reforms in 2016, additional amendments to the Act are expected in the next few years. Some of these reforms will refine prior amend-ments, while others will tackle new areas or specific appellate court or Illinois Supreme Court decisions. In this past term, the General Assembly considered amendments relating to primary cause and traveling employees, as well as some procedural proposals.8

Against an evolving backdrop of legislation and proposals, this Mono-graph provides an overview of some of the pivotal decisions and trends over the past eighteen months to two years in some of the more significant areas of workers’ compensation law. In at least three of the areas—“arising out of,” traveling employees, and TTD benefits—the appellate court has seem-ingly expanded the law to provide more coverage for injuries a casual observer might not think were compensable. In one area, the section 8.1b AMA rating report provision, the court has been called upon to interpret what the General Assembly intended when it passed its 2011 reform legislation. Finally, this Monograph discusses medical cannabis and its potential impact on Illinois work-ers’ compensation claims.

I. Traveling Employees Since Venture-Newberg

The general rule is that an injury in-curred by an employee while going to or returning from the place of employment does not “arise out of” or “in the course

of” employment and is, therefore, not compensable.9 The underlying rationale for this rule is that the employee’s trip to and from work is the result of the employee’s own decision as to where to live and the employer ordinarily has no interest in that decision.10 The courts have developed a separate body of law for employees whose work requires them to travel in some aspect of their employment. According to the case law, a traveling employee is one whose work duties require him to travel away from his employer’s premises.11 When an em-ployee is deemed a traveling employee, an injury sustained by that employee will be compensable as long as the employee is injured while engaging in conduct that was reasonable and foreseeable.12

In 2013, the Illinois Supreme Court handed down its decision in Venture-Newberg-Perini, Stone & Webster v. Illinois Workers’ Compensation Commis-sion, which held that an employee was not entitled to workers’ compensation benefits because he decided to accept a temporary position with the employer at a plant located approximately 200 miles from his home.13 According to the court, the employer did not direct the claimant to accept the position; he accepted the temporary position with full knowledge of the commute involved. Moreover, the employee made the decision to accept the position and the additional travel and travel risks that it entailed; his course or method of travel was not determined by the demands or exigencies of the job.14

Brad A. Elward is a partner in the Peoria office of Heyl, Royster, Voelker & Allen, P.C. He practices in the area of appellate law, with a sub-concentration in workers’ compensation appeals and asbestos-related appeals.

He received his undergraduate degree from the University of Illinois, Champaign-Urbana, in 1986 and his law degree from Southern Illinois University School of Law in 1989. Mr. Elward is a member of the Illinois Appellate Lawyers Association, the Illinois State, Peoria County, and American Bar Associations, and a member of the ISBA Workers’ Compensation Section Counsel.

Third Quarter 2016 | Monograph | IDC QUARTERLY | M-3


About the Authors

Lynsey A. Welch, a partner in the Rockford office of Heyl, Royster, Voelker & Allen, P.C., and dedicates a significant portion of her practice to the defense of workers’ com-pensation cases. She has authored a variety of articles

on Workers’ Compensation law and Workers’ Compensation appeals. Ms. Welch is a graduate of Northern Illinois University College of Law and she received her undergraduate degree from the University of Illinois.

Vincent M. Boyle is an attor-ney at Heyl, Royster, Voelker & Allen, P.C., Peoria, and fo-cuses his practice on defend-ing workers’ compensation claims before the arbitrator, Workers’ Compensation Com-mission, and the reviewing courts. Mr. Boyle is a frequent

speaker on workers’ compensation issues. He received his B.S. in 2006 from Bradley University and earned his J.D. in 2009 from the University of Illinois College of Law. During law school, Mr. Boyle participated in the Frederick Green Moot Court Competition, served as an articles editor for the Illinois Business Law Journal and was a Pro Bono Honors recipient.

Stacy E. Crabtree is an attor-ney at Caterpillar Inc., where she focuses on commercial transactions. She previously worked in the Peoria office of Heyl, Royster, Voelker & Allen, P.C. representing businesses, not-for-profits,

and governmental entities in commercial and tort litigation in state and federal court and was Vice Chair of the firm’s Cannabis Business & Law prac-tice group. Ms. Crabtree received her J.D., summa cum laude, from Florida Coastal School of Law and B.A., summa cum laude, from Bradley University.

Joseph K. Guyette is a part-ner in the Urbana office of Heyl, Royster, Voelker & Al-len, P.C., and concentrates his practice in the areas of work-ers’ compensation defense, professional liability and em-ployment matters. Mr. Guyette

Dana J. Hughes is a partner in the Peoria office of Heyl, Royster, Voelker & Allen, P.C., and represents employ-ers in workers’ compensa-tion claims. Ms. Hughes fre-quently speaks and writes on Workers’ Compensation law,

including co-authoring Southern Illinois University Law Journal’s “Survey of Illinois Law: Workers’ Compensation.” She is a graduate of Northern Il-linois University College of Law and received her undergraduate degree at NIU. In 2015, Ms. Hughes was named to the Leading Lawyers Emerging Lawyers list.

Brett E. Siegel is an associ-ate in the Springfield office of Heyl, Royster, Voelker & Allen, P.C., and represents clients in tort litigation and defends employers in work-ers’ compensation cases. Mr. Siegel regularly handles depositions of expert wit-

nesses and treating physicians in both civil and workers’ compensation matters. He has taken several cases to trial and has argued multiple cases on appeal before the Workers’ Compensa-tion Commission.

has taken several bench and jury trials to verdict, and has drafted and argued numerous dispositive motions. He has handled workers’ compensation arbitration hearings at venues throughout the state, and has argued multiple cases before the Workers’ Compensation Commission.

A. When does a traveling employee become a traveling employee?

Following Venture-Newberg, the appellate court recently decided sev-eral cases defining when an employee is working as a traveling employee. In Mlynarczyk v. Illinois Workers’ Com-pensation Commission, the claimant was injured while walking from her home to her company provided minivan to return to a jobsite.15 She worked for a cleaning service and her job duties included cleaning churches, homes, and offices.16 The claimant’s husband also worked as a driver for the employer and he would occasionally drive other employees to and from job sites.17 The two did not own a vehicle and used the employer provided van for work and personal use. 18

On the morning of her accident, the claimant left her home and her husband drove her in the minivan to clean a church.19 The two finished cleaning the church and drove the minivan to clean two homes, which they finished around 2:30 p.m.20 While the claimant typically worked each day until 4:00 p.m., there were occasional cancellations.21 On the day of the accident, the employer informed the claimant there were no other assignments for her, but she should return to the church around 4:30 p.m., if interested, to assist the evening crew.22 The claimant and her husband agreed to return to the church at 4:30 p.m. and then traveled home in the minivan to eat lunch.23

The claimant was not paid for the 90-minute lunch break she took between jobs that day.24 At 4:00 p.m., the claimant’s husband went out to warm the minivan, which was parked in their driveway25 Shortly thereafter, the claimant left her house to travel to the church.26 As she walked on a sidewalk


leading from the house to the driveway, she slipped and fell.27 The sidewalk was covered with snow and possibly ice.28 The claimant had a purse on her shoulder, but was not holding anything in her hands.29

Although acknowledging the gen-eral rule that injuries sustained while traveling to and from the workplace do not “arise out of” and “in the course of” employment, the arbitrator found the claimant’s injury compensable because she was a traveling employee and injured while walking to her employer provided vehicle.30 The Commission reversed the arbitrator’s decision, finding that the claimant had not yet left her personal property at the time of the injury and that she had not been exposed to the hazards of the street or automobile.31

The appellate court reversed the Commission and found that the claimant was considered a traveling employee as soon as she left her home.32 The ap-pellate court reasoned that the claimant did not work at a fixed job site and instead traveled to various locations, qualifying her as a traveling employee once she left her home.33 The court held that the claimant’s walk to the minivan constituted the initial part of her journey to her work assignment and that it was reasonable and foreseeable.34 Further, the court found that accident occurred on a “public sidewalk,” which exposed claimant to the hazards of the street.35

In Pryor v. Illinois Workers’ Com-pensation Commission, the appellate court considered the traveling employee issue where the claimant was injured while moving a suitcase into his personal vehicle while still at his residence.36 The claimant worked as a car hauler for his employer and delivered automobiles to various car dealerships.37 His responsibil-ities included loading automobiles onto

an 18-wheel car-hauling tractor-trailer at the employer’s terminal in Belvidere, Illinois, and then driving to dealerships where the vehicles were unloaded.38 The claimant usually drove his personal vehicle from his home to the employer’s terminal in Belvidere.39

According to the record, the claim-ant spent one to two nights per week at a hotel while he was on the road delivering automobiles.40 He packed a suitcase when he anticipated staying overnight in a hotel while on the road.41 The employer gave the claimant a list of hotels that he could book for overnight stays.42 The claimant usually drove to his employer’s terminal in his personal vehicle, took his suitcase out of his vehicle, and loaded it into his 18-wheeler.43

On July 21, 2008, the claimant woke up at his home.44 In anticipation of spend-ing that night on the road, he packed a suitcase with a change of clothes and carried it to his personal car.45 When he opened the car door, he reached down to pick up the suitcase.46 He then “bent and turned to the back seat of the car” and felt “unbearable” pain throughout his back and legs.47

The arbitrator found that the claim-ant was not a traveling employee and denied the claim.48 On appeal, the Commission affirmed the arbitrator’s decision, concluding that the risk of injury was a personal risk and not suf-ficiently connected with employment to make the risk peculiar to his work.49 The Commission relied on the fact that the claimant’s “travel for work had not yet begun when the accident occurred.”50 The circuit court affirmed the Commis-sion’s decision and the claimant appealed to the appellate court.51

The appellate court found that the claimant was not a traveling employee until he reached his employer’s premises,

which triggered the start of his workday as a delivery driver.52 The appellate court rejected the claimant’s argument that he was a traveling employee from the mo-ment he left his house. The employee had argued it was reasonable and foreseeable that he would load a bag into his car in preparation for the upcoming work trip.53 The court concluded, however, that the claimant was injured during a regular commute from his home to his employer’s premises and that the injury was not compensable.54 It is important to note in this particular case that the claimant started his trips each day from a fixed job site, unlike the claimant in Mlynarczyk who began her trip directly from her home.

B. Convergence of the traveling employee and street risk doctrines.

A third case involving traveling employees helps define the difference in causation standards between a fall by a traveling employee after encoun-tering a neutral risk versus a fall by a non-traveling employee in the same situation. In Nee v. Illinois Workers’ Compensation Commission, the claim-ant, a plumbing inspector for the City of Chicago, was injured after tripping on a curb as he was walking back to his car to go to his next assignment.55 The claimant testified that his work duties required him to travel through the city by car to inspect plumbing in both commercial and residential buildings. He also said he reported to work each day at the filtration plant and received his work assignments, before heading into the field. The claimant contended, and the City admitted, that the claimant was a traveling employee.

The arbitrator and Commission denied the claim, finding the claimant



failed to prove he sustained accidental injuries arising out of the employment. On appeal, the appellate court reversed the Commission and remanded the case for further proceedings.

According to the appellate court, the Commission erred by failing to review the accident under the appropriate traveling employee standards, which in evaluating “arising out of,” asks whether the accident was reasonable and foresee-able. The appellate court concluded that “no reasonable argument can be made that the claimant’s conduct in traversing a curb as he walked to his car was neither reasonable nor foreseeable.”56 Moreover, the appellate court applied the so-called “street risk” doctrine to conclude that, “[h]aving been exposed to the risk of traversing a curb to a greater degree than a member of the general public by virtue of his status as a traveling employee at the time of his accident, the injury which the claimant suffered when he tripped over the curb was sustained not only in the course of his employment, it also arose out of his employment with the City.”57 Under that doctrine, “where the street becomes the milieu of the employee’s work, he is exposed to all street hazards to a greater degree than the general public.”58

The interesting aspect of Nee is its language concerning trip and falls in a non-traveling employee setting. In that regard, the court stated, “[t]he risk of tripping on a curb is a risk to which the general public is exposed daily.”59 The court stated further:

Nothing in the record before us suggests that some aspect of the claimant’s employment con-tributed to the risk of traversing a curb. Although there is evi-dence that the claimant carried

a clipboard while performing plumbing inspections, there is no evidence that carrying a clipboard caused, or contributed to, his tripping on the curb. Further, there is nothing in this record to distinguish the curb on which the claimant tripped from any other curb. As noted earlier, although the claimant testified that the curb may have been higher than the sidewalk, he readily admitted that he did not know. We are left then with the question of whether the claimant was exposed to the risk of tripping on a curb more frequently than the general public.60

Hopefully this language will serve em-ployers well in future claims that do not involve traveling employees or the street risk doctrine.

C. Control over a traveling employee.

In United Airlines, Inc. v. Illinois Workers’ Compensation Commission, the appellate court took a close look at the importance of an employer’s control over an employee’s travel in determining whether an accident is compensable.61 That case involved a flight attendant who suffered a knee injury on a flight from Denver, Colorado, to LaGuardia Airport in New York.62 On this flight, the claimant was not working as a flight at-tendant.63 Rather, she was traveling from her home in Colorado as a passenger to New York to begin a shift as a flight attendant on a flight originating from JFK Airport the next day.64

While traveling to begin her shift, United did not pay her for the time

spent travelling from Colorado to New York and did not reimburse her for any travel expenses, meals, or hotel costs for traveling to or staying in New York.65 The claimant would not earn any wages until her aircraft parted the gate at JFK the following day.66 Testimony at trial revealed that the claimant had an op-portunity to change her base airport from JFK to Denver, but declined.67 It was the employer’s policy to provide free parking at each employee’s base airport, but the claimant elected to receive a free parking spot at the Denver airport, instead.68 Fur-ther, the employer provided the claimant with a leisure travel pass that allowed her to fly standby, for free, on any flight with available space.69 These free flights were available for any purpose, includ-ing vacation and commuting to a base airport.70 The employer did not control the claimant’s use of these leisure travel passes, and had no control or preference regarding how she traveled to and from her base airport to report for work.71

On the date of the accident, the claimant boarded the plane with her leisure travel pass and wore her flight attendant uniform. Once on board, she used the lavatory to change from her uni-form into her regular clothes before the flight departed. A co-worker testified that it was a violation of company policy to wear the flight attendant uniform through security when not boarding a plane for work.72 When returning to her seat from the lavatory, the claimant caught her foot where the seat row is bolted to the floor and twisted her left knee.73

The arbitrator found that the claim-ant qualified as a traveling employee and awarded benefits under the Act.74 The arbitrator relied on prior Commission decisions finding that a flight attendant traveling to her work qualified as a travel-


ing employee.75 It must be noted that the arbitration hearing took place before the Venture-Newberg decision was issued.76 Following the Venture-Newberg, the Commission reversed the arbitrator’s decision, finding that the claimant was not a traveling employee at the time of her injury.77 The Commission empha-sized that the employer did not derive any benefit from the claimant’s decision to live in Colorado and noted that the employer did not tell the claimant where to live, did not compensate her for time or travel expenses during her voluntary commute, and did not provide any preferential treatment as a commuting employee.78 The Commission concluded that the claimant’s travel was “due to her personal choice only.”79

On appeal, the circuit court rein-stated the arbitrator’s decision, finding that the claimant’s transportation on the date of the accident was “necessary to the exigencies of her work.”80 The circuit court also focused on the fact that the employer paid for her parking at the airport in Denver and provided her with air travel to her base airport.81 Based on these facts, it held that the employer preferred the claimant to “take certain modes of transportation” in commut-ing to work.82 According to the circuit court, the claimant became a traveling employee when she boarded the flight from Denver to New York.

The appellate court, while also relying on Venture-Newberg, reached an opposite conclusion and held that the claimant was not a traveling employee at the time of her accident.83 The appellate court concluded that the employer had no control over where the claimant chose to live and did not benefit in any way from the claimant’s choice to live in Colorado.84 The appellate court also found the claimant was injured during

her commute from her chosen residence, before beginning work.85 The court concluded that the claimant’s “selection of the location of her parking privileges was her personal choice and stemmed from her choice of residence.”86 Further, it found it important that the employer “had no control over what modality of transportation the claimant chose to arrive at JFK Airport or even when she arrived in the New York City area.”87 Finally, the court explained that the travel pass “was not a benefit offered to the claimant because she resided in Colorado while working out of JFK Airport.”88 Instead, it was the claimant’s decision to use a leisure travel pass to commute from Colorado to New York.

In this case, the appellate court relied upon the employer’s lack of control over the claimant’s travel and the lack of benefit to the employer to conclude that she was not a traveling employee at the time of her accident. In conjunction with the risk analysis in the Pryor case, Illinois courts have established that there are definite limits for determining when an employee is simply commuting, rather than acting as a traveling employee.

D. Implications from recent rulings.

The implications drawn from Mlynarzcyk and Pryor are clear–a traveling employee who begins the work day leaving directly from home receives the benefits of the reasonably foreseeable standard as soon as he departs from home to begin his work day. This is precisely what transpired in Mlynarzcyk, where the employee was departing her residence to head to a job site to begin her work. On the other hand, where the traveling employee must come into work before beginning his travel, the expanded compensability afforded a traveling

employee does not cover the trip to and from work, but rather begins only when the employee departs the workplace. This scenario is depicted in Pryor. Finally, as exemplified in Nee, when the employee is a traveling employee, an accident sustained encountering an otherwise neutral risk may be found compensable even though not compensable to a non-traveling employee simply because of the lesser reasonably foreseeable standard.

II. “Arising Out Of”

For a workers’ compensation claim-ant to receive benefits for his claimed injuries, he must first show his injuries “arose out of” and “in the course of” his employment. The “in the course of” component is typically easily satis-fied, because injuries sustained on an employer’s premises or in a place a claimant might reasonably have been while performing his job duties are found to have incurred “in the course of” the claimant’s employment.89 The “arising out of” element is not always clear so it is frequently litigated. The last few years have been no exception.

For an injury to “arise out of” one’s employment, the origin of the injury must be associated with some risk incidental to, or connected with, the claimant’s employ-ment thereby creating a causal connection between the claimant’s employment and the accidental injury.90 Where an injury is caused by risk incidental to employment, it is said to “arise out of” employment and, so long as the injury also occurred “in the course of” claimant’s employ-ment, it is compensable.91 However, if an injury occurs due to some risk that is personal to the claimant or neutral in nature, the compensability question cannot be resolved without additional evidence and analysis.



When it is clear that risk leading to injury is not incidental to employment, it is either personal to the claimant or neutral in nature, and not automati-cally compensable without evidence that claimant’s employment contributed to the risk of harm from that activity. For example, if a claimant falls due to a seizure disorder and is injured, the court would likely view the risk of seizure as personal to the claimant and find the injury non-compensable because the claimant’s employment did not cause or contribute to her injury. However, if the claimant was standing on a six-foot ladder in her workplace warehouse at the time of her seizure and fell six feet to the ground when she seized, her injuries might be compensable because of the increased risk of harm associated with standing on that ladder. Personal risks, like the one described, do not lead to compensability absent a showing that the claimant’s employment increased the risk of injury to the claimant.

Probably the most difficult type case to analyze from an “arising out of” standpoint involves an injury suffered due to a neutral risk, that is, one en-countered by all members of the public. A claimant’s injury is not compensable unless his employment exposed him to the risk to a greater degree than that which the general public is exposed.92 A neutral risk analysis requires the court to take either a qualitative or quantitative approach to determining whether the claimant has been exposed to increased risk. A qualitative approach assesses whether something about the claimant’s employment has increased the risk of harm from a neutral activity. A quantita-tive approach examines the frequency with which the claimant encounters the neutral risk as a result of his employ-ment. If the employment increased the

risk of harm from a neutral activity or required the claimant to encounter the risk with greater frequency than that of the general public, the court will find the injury compensable.93

The typical compensability question in the recent case law, generally, involves analysis of injury due to seemingly common activity. As in all cases, the court must determine whether the risk associated with the common activity is incidental to employment—compen-sable, personal to the claimant—non-compensable or neutral—possibly compensable. In recent years, the court is trending toward a broader approach of finding compensability where the injury occurs due to common activity.

A. Risk incidental to employment.

In 2013, the court held that a care-giver, who was reaching for soap while assisting a resident to shower and was injured, was performing an activity incidental to employment and therefore proved a compensable claim.94 A seem-ingly common activity like reaching, even reaching for a soap dish, was not a risk peculiar to the claimant’s employ-ment but rather one to which members of the public are equally exposed, the employer argued.95 The court, in reject-ing this argument for non-compensable neutral risk, found claimant’s job duties required her to assist residents with activities of daily living such as shower-ing and this activity was in furtherance of those duties. The placement of the soap dish was such that water was run-ning over the soap creating suds on the shower floor and, while hanging onto the resident, the claimant was attempting to move the soap dish when she felt a pop in her neck. The court stressed that the claimant was ensuring the safety of the

resident in the shower at the time of the accident, which was a direct connection to her assigned job duties.96

More recently, the court in Boling-brook Police Department v. Illinois Workers’ Compensation Commission, held that a police officer who was injured lifting his heavy duty bag out of his car at home off hours proved a compensable claim.97 The employer argued that the claimant’s injury did not “arise out of” his employment because he was perform-ing a neutral activity to which the general public is exposed and it did not happen “in the course of” his employment because he was at home and off the clock. The employer further argued the claimant was not required to bring his duty bag home so was he was not performing an activity incidental to employment when he was injured. The employer did, however, require the claimant to keep his duty bag on his person at all times and gave the claimant the option to keep the duty bag home with him on off hours to keep it safe and secure. In handling that duty bag, the claimant officer was performing a task that directly benefited the employer and in doing so suffered an injury. Thus, the court found the activity was incidental to employment.98

In the two cases above, the court also found medical causation between the common activities and the claimants’ respective conditions of ill being. Both claimants had significant, pre-existing conditions that the court found were aggravated by the work activities. The conditions were such that the claim-ants had pre-accident treatment; the Bolingbrook claimant had even discussed surgery for the affected body part with his treating physician just days before the accident.99 Importantly, the employ-ers’ IME doctor in each case found


causation or, at the very least, found that the activity could have produced an increase in pain such that the claimants sought medical treatment. The impact on the accident analysis, had each court found the condition was not caused or aggravated by the common activity, is not clear. One has to wonder, if medical evidence establishes causation, will the court find compensability?

B. Neutral risk.

In Adcock v. Illinois Workers’ Com-pensation Commission, the employer prevailed before the Commission in its argument that the act of turning in a chair while performing welding duties at work did not “arise out of” the claimant’s employment, but the appellate court reversed.100 The appellate court held, in a 3-2 decision with special concur-rence, the risk of turning in a chair was neutral, but the claimant’s employment required him to turn in the chair at least seventy times each workday to weld locks. The employer did not rebut this evidence. Thus, the court found the claimant confronted this neutral risk to a greater degree than that of the general public and found the claim compensable. The majority, in addressing the special concurrence, held that benefits will not be awarded for injuries caused by everyday activities like walking, bending, or turn-ing even if the claimant was ordered to perform those activities as part of his job duties, unless the claimant’s job duties required him to perform those duties to a greater degree than the general public.101

The two, specially-concurring Ad-cock justices argued the risk associated with turning in a chair to perform weld-ing activities was incidental to the claim-ant’s employment which would make the claim compensable without further

analysis.102 They argued the claimant was performing an activity he might “reasonably be expected to perform” in furtherance of his work duties when he was injured. This language is arguably similar to the test the court will apply to traveling employees: if the claimant is injured performing an activity that is reasonable and foreseeable to the em-ployer, the injury is compensable without additional “arising out of” analysis. The justices argue for the court to continue the trend of finding common activities performed while working are incidental to employment, regardless of the nature of the activity. Fortunately, in the big picture for employers, the majority rejected this reasoning.

Interestingly in Adcock, the medical evidence supported the employer’s win below. The treating and independent examining physicians both testified that the claimant’s knee injury could have happened from any activity and nothing about his work increased his risk of that injury. The Commission relied on this tes-timony in denying compensability, but the court did not address it after it reversed on the issue of accident. Accident and causation, while certainly linked together, are separate issues. Compensability does not automatically mean causal connection established by medical evidence.

C. Tips for the practitioner.

The court seems to be inclined, to characterize common activities as inci-dental to employment, which disposes of any defense argument that an injury is non-compensable as not “arising out of” employment. Defense practitioners should keep the court’s reasoning in mind when analyzing the compensability of an injury due to a common activity so as to garner evidence and develop a posi-

tion, where possible, that the claimant was exposed to a personal risk or one neutral in nature. These categories of risk generally do not lead to compensable injuries without additional evidence by the claimant who bears the burden of proving that his employment increased his risk of harm from injury. Where the claimant can establish that his injury was due to risk incidental to employment, the compensability analysis is concluded in his favor. So, any time a practitioner can develop evidence to support a personal or neutral risk analysis, he will have a better chance at prevailing on the “arising out of” issue.

Establishing a risk is neutral rather than incidental will always hinge on the claimant’s job duties. The court is focused on whether the activity is connected to the furtherance of the claimant’s job duties. Evidence should be developed, where possible, that the common activity performed was not in furtherance of the claimant’s actual duties. This type of evidence can be elicited through the claimant himself with proper documenta-tion at trial. There are risks, however, if the employer’s representatives are absent from the trial and claimant can explain away the documentation. Recorded and written statements and accident investigation are the keys to preserving the actual account of what happened to cause claimant’s injury, and may require employer involvement at trial. Written and video job duties documentation can be equally important to provide the most accurate description of the claimant’s job so as to decipher what activities are truly incidental compared with those that are personal or neutral. The court will rely on this evidence to evaluate credibility and determine whether the claimant’s activities truly bore a causal connection to his job.



Pairing a compensability defense with credible medical evidence that the activity did not cause, contribute to, or aggravate the claimant’s condition of ill-being should be thoughtfully considered. While the medical evidence will not impact a compensability defense, it may still give the employer the evidence it needs to completely prevail in a case. Even if the claimant suffered an accident that “arose out of” and “in the course of” the claimant’s employment, a claimant must still prove that his condition of ill-being is causally connected to that activity. The medical causation inquiry is slightly different than the compensability question.

When an activity that produces inju-ry is a common one, and may be deemed a compensable workplace accident, that common activity may not have caused, contributed to or aggravated the condi-tion of ill being. The credible medical evidence may show that the claimant’s condition of ill being was one that could be aggravated by any and all activity or was only temporarily aggravated by the common activity performed at work. While we are not focusing on medical evidence in this article, suffice it say that where injuries are reported due to com-mon activities, some medical evidence may exist to support a causal connection defense due to pre-existing, longstand-ing conditions or other co-morbidities. High-dollar exposure cases in particular warrant careful consideration of working up a strong medical causation defense in addition to a compensability defense.

III. Temporary Total Disability (TTD) Benefits

The fundamental purpose of the Workers’ Compensation Act is to pro-

vide injured workers with financial protection until they can return to the workforce. The Act achieves this goal by requiring the employer to pay for the injured worker’s medical treatment and temporary total disability benefits while the worker is convalescing from the work injury. The right to receive these benefits is not absolute; benefits may be suspended or terminated if, as an example, the claimant refuses to submit to medical, surgical, or hospital treatment essential to his recovery, or if the claimant fails to cooperate in good faith with rehabilitation efforts.103 The test for whether a claimant is entitled to TTD benefits, and specifically the cir-cumstances under which an employer can rightfully suspend or terminate benefits, has evolved over the last few decades. Recently, the Illinois Supreme Court’s focus has shifted to factual evidence regarding the claimant’s physical condi-tion coupled with his return-to-work status.104 As the courts have continued to evolve the TTD entitlement test, it begs the question, “What is the current status of the law with respect to TTD benefits?”

Several years have now passed since the Illinois Supreme Court’s seminal 2010 decision in Interstate Scaffolding,105 where the court held that an employer’s obligation to pay TTD benefits does not cease when the claimant is terminated from his employment due to his own violation of company policy if the employee has not yet reached maximum medical improvement (MMI). In Inter-state Scaffolding, the employer accom-modated the claimant’s restrictions with light duty work.106 While working light duty, however, the claimant was caught vandalizing property with graffiti and terminated for cause. Although the claim-ant testified he did not believe the graffiti was the cause for his termination, the

arbitrator found that respondent’s TTD obligations ceased as of the termination date. The case was appealed all the way to the Illinois Supreme Court which said the Workers’ Compensation Act does not support an employer’s refusal to pay TTD benefits to a claimant who remained injured, but had been terminated for activities unrelated to his injury. The court acknowledged the employer’s right to fire the claimant, but completely separated the employment issue of ter-mination from the employer’s obligation to pay TTD. The court ultimately held that TTD liability did not cease when a claimant was terminated, regardless of whether or not the termination was for cause, if the injured claimant had not at the time of his termination reached maximum medical improvement.107

The Interstate Scaffolding court re-iterated the test for TTD entitlement as whether the claimant’s condition had stabilized.108 Although the court acknowledged there are three exceptions to the rule that TTD benefits are owed until the claimant reaches MMI—(1) the claimant refuses to submit to medical, surgical, or hospital treatment essential to his recovery; (2) the claimant refuses to cooperate in good faith with rehabilita-tion efforts; and (3) the claimant refuses work falling with the physical restric-tions prescribed by his physician–none of these applied.109 As discussed below, employers have been relying on these three exceptions to suspend benefits, which have been met with some resis-tance by the appellate court.

A. The claimant refused light duty.

In September 2011, the appel-late court heard its first case inter-preting Interstate Scaffolding, that


case being Otto Baum LLC, Inc. v. I l l inois Workers’ Compensat ion Comm’n.110 After suffering a work-related injury, the claimant was offered and accepted light duty work within his restrictions each time the treating physician released him to do so. Each time, however, the claimant contended he could not perform the work, for one reason or another. Two months after his last refusal, the claimant requested light duty work from the employer, which the employer refused to accommodate based on the claimant’s two prior refusals. The court held the employer was not liable for TTD during the periods in which the claimant refused the light duty work, but was liable for the period in which the employer refused to accommodate the light duty restrictions when the claimant asked the employer to do so.111

Quoting Interstate Scaffolding, the court said “where claimant is capable of returning to the workforce” TTD liability ceases. It went on to note “the Act provides incentives for the injured claimant to strive toward recovery and the goal of returning to gainful employ-ment.”112 The Otto Baum court was silent as to the impact and hardship this ruling might have on employers who are arguably expected to hold light duty work positions open for claimants until they choose to accept them.

B The claimant appeared to be working .

In Sunny Hill of Will County v. Illinois Workers’ Compensation Com-mission, the court found that a restricted claimant that “helped” in her fam-ily business was still entitled to TTD benefits because the employer lacked evidence the claimant’s condition had stabilized or she had reached MMI.113

The claimant, while recovering from a compensable shoulder injury, was caught on surveillance working in the flower shop owned by her daughters. She helped at the shop three days per week answering phones, running deliveries or watching her grandchildren, and did not earn income. In finding claimant entitled to TTD during this time, the court held that the mere fact that she was “helping” at the flower shop did not prove that her condition had stabilized such that she was no longer temporarily totally dis-abled from work.114 Based on Interstate Scaffolding, the appellate court observed that the claimant had not been released to return to work by her treating physi-cian and was actively treating during the disputed period of TTD (the period in which she was helping at the shop). The court also found that the claimant’s presence at the flower shop was simply occasional assistance to her daughters and did not constitute a return to work that would alleviate the employer’s TTD obligation.115

Of interest, the Sunny Hill court did not make reference to whether the employer submitted the surveillance video to a medical professional to obtain an opinion that the claimant was capable of returning to work so it is unclear what impact, if any, medical evidence would have on the court’ decision to award TTD. The decision mentioned the claimant’s treating physician’s opinions, but was otherwise silent as to any others. Further, the Sunny Hill court was silent as to whether the surveillance footage captured the claimant performing any activities outside of her restrictions and how this factor might impact her ability to return to work or reach MMI. Gener-ally, credible medical evidence that a claimant is at MMI or can return to work based at least partially on surveillance

will bolster an employer’s decision to terminate TTD.

C. The claimant was discharged for cause.

In Matuszczak v. Illinois Workers’ Compensation Commission, the court ex-tended the employer’s TTD liability past the claimant’s termination date where a claimant on light duty was caught stealing and fired pursuant to company policy.116 The claimant admitted that he knew at the time he took the cigarettes, that stealing was a criminal offense and that it would result in his termination. He also acknowledged that but for the act of stealing the cigarettes, he would have remained in that light duty position. The employer argued the claimant’s actions were a constructive refusal of light duty work that terminates the employer’s obligation to pay TTD under one of the three exceptions in Interstate Scaffolding The court rejected the employer’s argu-ment and found the employer liable for TTD after the termination because the claimant had not reached MMI.

We do not believe the Interstate Scaffolding court was proscrib-ing all use of discretion in cases involving employment termina-tion; rather, as stated previously, we believe the court was reject-ing an analysis of the propriety of the discharge and rejecting an automatic suspension or termination of [TTD] benefits in cases involving employment termination.117

The appellate court found that the cir-cumstances of Matuszczak were the same as those presented in Interstate Scaffolding. The employer argued that



the Commission was free to exercise its discretion on a factual basis to deter-mine whether the claimant’s decisions/actions that led to termination were the equivalent of refusing to work within his physical restrictions and, thus, a valid basis for suspending or terminating TTD benefits under the exception provided in Interstate Scaffolding. The employer focused on the claimant’s knowledge of the consequences of his actions—the claimant in Matuszczak knew his ac-tions would result in termination while the claimant in Interstate Scaffolding denied his actions caused his termination. The appellate court refused to place any importance on the Matuszczak claimant’s knowledge because of the at-will state of employment. The court stressed that the employer’s obligation to pay TTD will not cease when a claimant is discharged for cause, unless the claimant’s condition has stabilized or reached MMI.118

While the appellate court in Matuzsc-zak failed to find any dissimilarity with the fact pattern in Interstate Scaffolding, they did not close the door entirely to termination of TTD benefits. In fact, the Matuszczak court stated, “Just as the facts of Interstate Scaffolding did not amount to a refusal of light duty work, the facts here also fail to present such a situa-tion.”119 Had the court applied a manifest weight of the evidence standard, the court would have given deference to the Commission’s findings that the claimant had voluntarily refused work within his restrictions by engaging in an act that he knew could result in his termination and loss of light duty employment. Instead, the appellate court applied a de novo standard, choosing to examine whether the Commission even had discretion to look at the termination when evaluating whether the claimant was entitled to TTD benefits following his termina-

tion. By doing so, and concluding the Commission lacked discretion, the court eliminated any deference entitled to be given the Commission as the determiner of fact. Applying the de novo standard of review used in Matuzsczak, the ap-pellate court limited the Commission’s consideration of the issue in future cases to a very limited set of facts; i.e., facts where the claimant actually denies any offers of light duty work.

D. The claimant retired.

In Sharwarko v. Illinois Workers’ Compensation Commission, the court examined whether a claimant who had voluntarily retired following a work injury was entitled to TTD benefits when his employer could have accom-modated the work restrictions but for the retirement. The claimant was a water and sewer inspector for the Village of Oak Lawn who sustained a right arm injury while replacing a water meter on a property owned by his employer.120 Before obtaining a light duty release, the claimant accepted a voluntary early retirement package offered by the employer. The Village continued to pay for related medical treatment after the claimant’s retirement through his release at maximum medical improvement, but denied payment of TTD benefits due to claimant’s voluntary retirement.121

In upholding the employer’s de-nial of TTD, the appellate court held the voluntary retirement of the claimant was equivalent to refusing the accom-modated work the employer had made available, and, as a consequence, he was not entitled to temporary total disability benefits, pursuant to the third exception to TTD liability articulated in Interstate Scaffolding.122 The court emphasized that the stated purpose of the Act is to

compensate a claimant for lost earnings resulting from work-related injuries, and when a claimant chooses to remove himself from the workforce, his lost earn-ings are the result of a volitional act, not his work-related injuries, which relieves the employer’s responsibility for paying TTD under Interstate Scaffolding.123

E. The claimant had contractual rights to benefits.

In Cesario v. Illinois Workers’ Compensation Commission, the court held the claimant’s collective bargaining agreement superseded the Workers’ Compensation Act where the claimant exercised his contractual option to refuse light duty work, and found the employer liable for TTD until the claimant’s condi-tion stabilized.124 The applicable col-lective bargaining agreement provided the claimant the right to decline light duty or temporary administrative duty positions unless voluntarily agreed to by the claimant and the employer with notice of the assignment to the union.125 Further, the light duty assignment could not not last more than 45 calendar days without approval from the employer, union president, or their designees.126 The claimant satisfied the 45-day period, but when he refused to continue the light duty assignment, the employer terminated his TTD benefits, relying on the exception laid out in Interstate Scaffolding that TTD benefits may be suspended or terminated if the claimant refuses an offer of work falling within the physical restrictions prescribed by his doctor.127

The appellate court applied a de novo standard of review, as the ques-tion presented was one involving matters of statutory and contract construction.


It held to the extent the Act conflicts with the terms of the claimant’s collective bargaining agreement, the collective bargaining agreement controls. It further noted that the Act itself does not require a claimant to accept an offer of employ-ment within his restrictions, but is just a factor when determining whether the employee has stabilized.128 Moreover, according to the appellate court, under Interstate Scaffolding the proper focus of the TTD analysis must be on whether the employee’s condition has stabilized or reached MMI. Finding the claimant’s condition had not yet stabilized, coupled with his contractual right to refuse light duty, the court found the employer liable for TTD benefits.

IV. Section 8.1b — AMA Rating Report

A. Section 8.1b.

The determination of permanent par-tial disabilities for workplace accidents occurring after September 1, 2011, is gov-erned by section 8.1b of the Act, which became effective on June 28, 2011.129 Section 8.1b(a) requires a licensed physician to prepare a permanent partial disability impairment report setting out the level of the claimant’s impairment in writing.130 The report must “include an evaluation of medically defined and professionally appropriate measurements of impairment that include, but are not limited to: loss of range of motion; loss of strength; measured atrophy of tissue mass consistent with the injury; and any other measurements that establish the nature and extent of the impairment.”131 Section 8.1b(a) requires the physician to use “[t]he most current edition of the American Medical Association’s ‘Guides to the Evaluation of Permanent

Impairment’ . . . in determining the level of impairment.”132

In determining the level of a claim-ant’s permanent partial disability, section 8.1b(b) directs the Commission to consider: “(i) the reported level of im-pairment pursuant to subsection (a); (ii) the occupation of the injured employee; (iii) the age of the employee at the time of the injury; (iv) the employee’s future earning capacity; and (v) evidence of disability corroborated by the treating medical records.”133

B. Recent judicial interpretations.

To date, one appellate court deci-sion has been published interpreting section 8.1b, and a second decision is pending from the appellate court. First, in Continental Tire of the Americas v. Illinois Workers’ Compensation Com-mission, the appellate court rejected the employer’s argument that a “zero impairment” AMA rating meant that disability must be zero as a matter of law.134 Although speaking in dicta, the appellate court said “[t]he statute does not require the claimant to submit a writ-ten physician’s report.”135 Rather, “[i]t only requires that the Commission, in determining the level of the claimant’s permanent partial disability, consider a report that complies with subsection (a), regardless of which party submit-ted it.”136 According to the appellate court, “nothing within the statutory language of section 8.1b requires the Commission to automatically adopt Dr. Brown’s reported level of impairment merely because the parties submitted only one subsection (a) report.”137 To the contrary, the court explained, “the Commission is obligated to weigh all of the factors listed within section 8.1b(b) and make a factual finding with respect

to the level of the injured worker’s permanent partial disability with no single factor being the sole determinant of disability.”138

The second case, Corn Belt Energy v. Illinois Workers’ Compensation Com-mission, was released in late June 2016 and in a 4-1 decision held that section 8.1b did not require the submission of an AMA impairment rating report in order to establish permanency.139 In that case, the issues before the appellate court included whether the AMA rating report must be offered by the claimant as part of the petitioner’s burden of proof and production, the consequences of a failure to present a report, and the extent of explanation required of the Commission when it discusses the various factors set forth in subsection b of section 8.1b. Although the majority concluded that no report was required under the section, it did make it clear that the Commission, when rendering a decision awarding permanency, must articulate the relevance and weight of any factors used in addition to the level of impairment as reported by the physician and do so in writing.140 A third case, Central Grocers v. Illinois Workers’ Compensation Commission, presents nearly identical facts as Corn Belt Energy and was argued before the appellate court on June 15, 2016.141 No decision has yet been issued on that case.

C. Depositions and tips for the practitioner.

Depending upon the appellate court’s decision in Corn Belt Energy, AMA ratings could become a much more prevalent part of our practice. Assuming the Court does not establish that these rating reports are automatically admissible, depositions of AMA rating



physicians could also become much more common. There are simple factors to consider in both taking and defending these depositions.

For the party presenting the AMA rating, the deposition should be used to show that the rating physician did a thorough job and complied with the very detailed recommendations contained in the 6th Edition to the Guides to the Evaluation of Permanent Impairment. For the opposing party, the deposition of an AMA rating physician will focus on whether the physician complied with the procedure for calculating an impairment rating and whether the resulting report is in the correct format.

As an initial matter, the deposition of an AMA rating physician should focus on whether the physician is qualified to prepare the report. Section 8.1(b) of the Act requires that an AMA rating report be prepared by a physician licensed to practice medicine in all of its branches. The AMA guidelines do permit impairment evaluations from “medical doctors who are qualified in allopathic or osteopathic medicine or chiropractic medicine.” There remains some question as to whether a chiropractor is licensed to practice medicine “in all of its branches.” To this point, there have not been any Commission or court decisions providing guidance in this regard. Further, while the Act requires that the examiner be a “physician” to perform the rating, the examiner need not be certified to perform the rating.

The Guides dictate the use of a three-step process for preparing a rating report. Specifically, the Guides require a clinical evaluation, an analysis of the findings, and a discussion of how the impairment rating was calculated. An AMA rating report should include each of these three sections, and the content of each section

can form the basis of both direct and cross examination in a deposition.

V. Procedural Issues Impacting Workers’

Compensation

Several significant procedural ques-tions have been addressed by the appel-late court over the past two years. Two of these rulings concern timeframes for action, while the third addressed the timeliness of raising a Kotecki defense in civil litigation.

A. Modification of awards.

In Weaver v. Illinois Workers’ Com-pensation Commission, the Illinois Ap-pellate Court Fourth District, Workers’ Compensation Commission Division, addressed the issue of when the statutory 30-month period to file a section 19(h) petition to modify a permanency award due to a change in the claimant’s condi-tion begins to run following an award for permanency.142 Section 19(h) of the Act allows either the employee or employer to request that an award for permanency be reviewed by the Commission on the grounds that the disability of the employee has subsequently recurred, increased, diminished or ended.143 Such requests must be made within 30 months of a final award. On January 22, 2009, the arbitrator awarded the claimant permanent partial disability benefits in the amount of 50 percent loss of use of the person as a whole.144 On February 23, 2010, the Commission affirmed and adopted the arbitrator’s decision.145 On January 13, 2011, the circuit court, on judicial review, remanded the matter back to the Commission for further consideration.146 On June 30, 2011, the Commission issued its decision on re-

mand and vacated its original decision.147 The Commission found the claimant permanently and totally disabled and awarded benefits to the claimant for the remainder of his life.148 On June 11, 2012, the circuit court confirmed the Commis-sion’s decision on remand.149

On September 25, 2013, the appel-late court found that the Commission’s original finding that the claimant was permanently disabled to the extent of 50 percent loss of use of the person as a whole was not against the manifest weight of the evidence and that the circuit court erred in remanding the Commis-sion’s original decision.150 The appellate court then vacated the circuit court’s June 11, 2012, decision; vacated the Commission’s June 30, 2011, decision on remand; reversed the circuit court’s January 13, 2011, decision setting aside the Commission’s original decision; and reinstated the Commission’s original February 23, 2010, decision.151

On November 6, 2013, the claim-ant filed a petition for review under section 19(h). The employer filed a motion to dismiss the petition, arguing that it was filed beyond the 30-month period allowed under the Act.152 The Commission subsequently granted the employer’s motion to dismiss, “finding that it was untimely because it was filed more than 30 months after the Commis-sion’s original decision affirming the arbitrator’s award.”153 The Commission held that the 30-month period to file a section 19(h) petition was not tolled by judicial review.154 The appellate court agreed with the Commission’s decision to dismiss the section 19(h) petition.155 The appellate court expressed that the “purpose of section 19(h) is to set a period of time in which the Commis-sion may consider whether a disability


has recurred, increased, diminished, or ended.”156 The 30-month time “period for filing a section 19(h) petition runs from the date of filing of the Commission’s decision, and judicial review of the Commission’s decision does not toll the 30-month period.”157

Thus, the appellate court held that the 30-month time period to file a sec-tion 19(h) petition began on the date of the Commission’s original February 23, 2010, decision and was not affected by the subsequent appeals process that resulted in certain decisions being vacated and reinstated.158 The appellate court solidified that section 19(h) peti-tions must be filed within 30 months of the original Commission decision even if the underlying Commission decision is appealed. Section 19(h) petitions that are filed after the 30-month time period should be dismissed based on a lack of jurisdiction.159

B. Which provision governs re-filings following dismissal?

In Farrar v. Illinois Workers’ Com-pensation Commission, the Illinois Appellate Court First District, Workers’ Compensation Commission Division, ruled on whether the time limitation for refiling a workers’ compensation claim following dismissal for want of prosecu-tion is governed by section 13-217 of the Code of Civil Procedure (the Code) or by Commission Rule 9020.90(a).160 Section 13-217 allows a party to re-file an action within one year after the action has been dismissed for want of prosecution, regardless of whether the statute of limitations has expired during the pendency of the original filed action, while Commission Rule 9020.90(a) states as follows:

Where a cause has been dis-missed from the arbitration call for want of prosecution, the parties shall have 60 days from receipt of the dismissal order to file a petition for reinstatement of the cause onto the arbitration call.161

In Farrar, the claimant waited over 11 months after her original claim was dis-missed for want of prosecution to file a new claim for the same accident.162 When she filed this new claim, the statute of limitations on her claim had expired.163

The claimant argued that section 13-217 allowed her one year to refile her claim even though the statute of limitations had expired.164 The employer filed a motion to dismiss the new claim, arguing it was untimely under the Act’s statute of limita-tions which the arbitrator granted165 The court, in upholding the order dismissing the new filing, initially pointed out the General Assembly granted the Commis-sion the authority to “make and publish procedural rules and orders” governing the litigation of claims before it so that the process and procedure before it “shall be as simple and summary as reasonably may be.”166 While the Code may apply in the workers’ compensation arena under some circumstances, when the Act or the Commission’s rules regulate a procedural area or topic; the Act or Commission rules apply and not the Code.167 Thus, the appellate court held that Commission Rule 9020.90(a) governs the reinstate-ment of claims that have been dismissed for want of prosecution.168 Since the claimant had not refiled her claim within sixty days, the dismissal was proper.

C. Kotecki set-off timely raised post trial.

The appellate court recently issued a decision on whether the Kotecki doctrine must be raised affirmatively by the employer during trial as an affirma-tive defense. The so-called “Kotecki doctrine” comes from the 1991 Illinois Supreme Court decision holding that an employer’s maximum liability for contribution in the third-party context is limited to the amount of the workers’ compensation claim.169

In Burhmester v. Steve Spiess Con-struction, Inc., the court found that Kotecki automatically applies to offset the employer’s liability in contribution claims unless the employer has contractu-ally waived the protections and, thus, does not need to be affirmativly proven with evidence by the employer at trial.170 Here, the injured construction worker filed a workers’ compensation claim against his employer and then sued other contractors civilly. When the employer was brought in on a contribution claim by one of the defendants, the employer answered the complaint and included an affirmative defense asserting that any contribution that may be recovered against it would be limited to the amount paid or payable in the workers’ compensation case pursuant to the Kotecki doctrine.171 Following trial, the defendant seeking contribution from the employer argued the employer failed to offer evidence to support its affirmative defense. In finding this was not fatal to the employer’s assertion of the defense, the court reasoned that Kotecki is more in the nature of a set-off than an affirmative defense and applies as a matter of law.172

The court found no reason for the amount of Kotecki protection to go before the jury and said it could be appropriately handled in a post-trial motion.173



VI. Medical Cannabis

The Compassionate Use of Medical Cannabis Pilot Program Act (the Illinois Compassionate Use Act) makes legal the purchase and possession of cannabis for medicinal use by registered qualifying patients.174 A qualifying patient is defined as a person who has been diagnosed by a physician as having one of the thirty-nine debilitating medical conditions identi-fied within the Illinois Compassionate Use Act.175 The primary purpose of the Illinois Compassionate Use Act is to protect registered qualifying patients and their physicians from criminal prosecu-tion and property forfeiture for patient use of cannabis. However, the Illinois Compassionate Use Act has created a number of issues for employers when employees seek to become registered qualifying patients.176

With regard to the Workers’ Com-pensation Act, the predominant issue currently appears to be whether medical cannabis should be “covered,” meaning whether employers and their insurers are required to reimburse injured employees for medical cannabis. A secondary issue related to medical cannabis is how to address impairment when considering liability.

A. Coverage and the exclusionary provision.

The Illinois Workers’ Compensation Commission has not specifically ad-dressed the issue of coverage, and until 2016, even the Illinois Compassionate Use Act remained silent on insurance.177 Effective January 1, 2016, the Illinois Compassionate Use Act now provides what is often referred to as an “exclusion-ary provision,” which provides:

Nothing in the Act may be con-strued to require a government medical assistance program, employer, property and casualty insurer, or private health insurer to reimburse a person for costs associated with the medical use of cannabis.178

Other states with similar (but not iden-tical) language have struggled with how this language should be applied in the context of workers’ compensation claims. While some states have held medical cannabis is a reasonable and nec-essary medical treatment for workplace injuries and the employer or its insurer is responsible for reimbursement, other states have declined to follow suit.

1. California: Cockrell v. Farmers Insurance and Liberty Mutual

Insurance Company.

In a recent California case, Cockrell v. Farmers Insurance and Liberty Mutual Insurance Company, the claimant, a lawyer, sustained an injury to his low back, right elbow, and heart while working for Farmers Insurance.179 He sought reimbursement from Liberty Mutual Insurance Company, the third party administrator (TPA), for medical cannabis, which was recommended by his physician for chronic pain.180 Rely-ing on the agreed medical examiner’s opinion that this treatment was reason-able and necessary as provided under California’s workers’ compensation law, the judge awarded reimbursement to the claimant for the medical cannabis.181

The employer filed a petition for reconsideration and the California Workers’ Compensation Appeals Board (WCAB) panel reversed and remanded the case back to the workers’ compensa-

tion judge.182 In its decision, the panel noted both parties and the judge failed to consider the following language in the state’s medical cannabis law: “Nothing in this article shall require a governmental, private, or any other health insurance provider or health care service plan to be liable for any claim for reimbursement for the medical use of marijuana.”183

On remand, the workers’ com-pensation judge ruled that a workers’ compensation carrier is not a “health care service plan” and again ordered the TPA to reimburse the claimant for the cost of his medical cannabis.184 The judge did not analyze whether a work-ers’ compensation carrier was a “health insurance provider,” and consequently, the employer sought reconsideration yet again.185 The WCAB ordered the work-ers’ compensation judge to address the question of whether a workers’ compen-sation carrier falls under the definition of a “health insurance provider” as well and whether there was any rational basis to treat occupational and non-occupational insurers differently with regard to reim-bursement for medical cannabis.186 The case is still pending.

2. Iowa: McKinney v. Labor Ready and ESIS Inc.

In Iowa, where cannabis is not legal for any purpose, a deputy workers’ com-pensation commissioner found the cost of medical cannabis was compensable and ordered it reimbursed to a claimant who was injured in Iowa, but later moved to Oregon where medical cannabis is legal. In McKinney v. Labor Ready and ESIS Inc., the claimant sustained a left fibula fracture and crush injury to the tibial plafond when she was run over by a forklift truck.187 She was subsequently


diagnosed with complex regional pain syndrome.188 She testified she had received a variety of pain management treatments without relief, and sought this alternative medical care which was recommended by an authorized treating physician in Oregon.189

The commissioner noted that medi-cal cannabis is not readily available in Iowa, but that sections 124.205(7) and 124.206(7) of Iowa’s Uniform Con-trolled Substances Act do offer controlled substance exclusions for cannabis “used for medicinal purposes pursuant to rules of the board of pharmacy examiners.”190 Since the claimant was now a resident of Oregon, a medical cannabis state, and the treatment recommendation was from an authorized physician licensed in Oregon, the commissioner ruled the medical cannabis was reasonable and necessary.191

Notably, Oregon’s medical cannabis law provides that nothing in the medical cannabis law requires “[a] governmental medical assistant program or private health insurer to reimburse a person for costs associated with medical use of marijuana . . . .”192 The analysis of whether a workers’ compensation carrier is considered a “private health insurer” was not considered by the commissioner.

3. Maine: Noll v. LePage Bakeries, Inc. and Bourgoin v. Twin Rivers

Paper Company.

The Maine Workers’ Compensation Board has addressed the issue of coverage in two cases. In Noll v. LePage Bakeries, Inc., the claimant was employed as a de-livery driver and sustained a back injury while making deliveries.193 He sought reimbursement from his employer for a medical evaluation for the purpose of obtaining a medical cannabis certificate,

medical cannabis, and a vaporizer for treatment.194 The self-insured employer argued these medical expenses should not be covered under the state’s workers’ compensation law for two reasons: (1) cannabis is a controlled substance under federal law and the employer should not be “complicit in a violation of federal law and subject to the risks of prosecu-tion;”195 and (2) the state’s medical cannabis statute stated that the law “may not be construed to require a government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of marijuana.”196

The administrative law judge han-dling this case denied the claimant’s petition seeking reimbursement for these medical expenses and sided with the employer. The judge specifically held that Maine’s medical cannabis law ap-plies to shield a workers’ compensation insurer from liability for expenses related to the use of medical cannabis because the insurer qualifies as a “private health insurer.”197 The claimant had not met his burden of demonstrating otherwise.

The claimant subsequently moved for further findings of fact and conclu-sions of law on the issue of whether the employer, as a self-insured entity, can be defined as any kind of “private health insurer.” The judge ultimately reversed the prior decision and found that since the Bureau of Insurance Regulations define workers’ compensation insurance as “ca-sualty” rather than “health,” the employer could not be considered a “private health insurer” within the meaning of exclusion-ary provision.198 Based on this reasoning, no workers’ compensation insurers would be considered “private health insurers,” regardless of self-insured status, and therefore could not be shielded from paying for medical cannabis.199

In a different Maine case, which is currently pending before the Work-ers’ Compensation Board Appellate Division, the administrative law judge ruled the cost of medical cannabis was compensable. In Bourgoin v. Twin Rivers Paper Company, the employer again argued cannabis was an illegal drug under federal law and that it should be protected by the exclusionary provision in the state’s medical cannabis law.200 The judge dismissed the federal classification argument, noting medical cannabis is “authorized by state law and tolerated by federal law enforcement,” and ruled that workers’ compensation insurers “are not private health insurers so the [exclusionary] statute does not apply.”201

These cases may provide some insight in to how Illinois arbitrators, commissioners, and the courts may interpret and apply the exclusionary provision in the Illinois Compassionate Use Act when determining liability. In contrast to the statutes discussed in this article, Illinois’ exclusionary provi-sion includes employers and casualty insurers amongst those who do not have to reimburse individuals for medical cannabis.202 The addition of these parties to the exclusionary provision will likely benefit Illinois employers and workers’ compensation insurers who want to avoid liability for medical cannabis in workers’ compensation claims. Whether it is smart decision, nonetheless, to cover medical cannabis, should be assessed on a case by case basis.

B. Impairment and liability.

For workers’ compensation cases, section 11 of the Act (amended in 2011), states that “[n]o compensation shall be payable if (i) the employee’s intoxication is the proximate cause of the employee’s

accidental injury or (ii) at the time the employee incurred the accidental injury, the employee was so intoxicated that the intoxication constituted a departure from the employment.”203 Section 11 provides that admissible evidence of the concentration of (1) alcohol, (2) cannabis as defined in the Cannabis Control Act,204 (3) a controlled substance listed in the Illinois Controlled Substances Act,205 or (4) an intoxicating compound listed in the Use of Intoxicating Compounds Act206 in the employee’s blood, breath, or urine at the time the employee incurred the accidental injury “shall be considered in any hearing under this Act to determine whether the employee was intoxicated at the time the employee incurred the accidental injuries.”207

Concerning cannabis, “[i]f at the time of the accidental injuries, . . . there is any evidence of impairment due to the unlawful or unauthorized use of (1) can-nabis as defined in the Cannabis Control Act,208 (2) a controlled substance listed in the Illinois Controlled Substances Act,209 or (3) an intoxicating compound listed in the Use of Intoxicating Compounds Act210 or if the employee refuses to submit to testing of blood, breath, or urine, then there shall be a rebuttable presumption that the employee was intoxicated and that the intoxication was the proximate cause of the employee’s in-jury.”211 In that event, the employee may overcome the rebuttable presumption by the preponderance of the admissible evidence that the intoxication was not the sole proximate cause or proximate cause of the accidental injuries.

There are two specific types of ac-cidental injuries that are most likely to be impacted by medical cannabis—injuries while driving and injuries while operating equipment. Unsurprisingly, Colorado, a state with over 100,000 active medical

cannabis patients, has reported an increase in driving under the influence of cannabis cases and fatal motor vehicle crashes with cannabis-only drivers. Presently there are approximately 5,600 registered qualify-ing patients in Illinois. This number is expected to continue to increase in the coming months, especially in the event the Illinois General Assembly or the Illinois Department of Public Health (IDPH) adds more debilitating medical conditions to the Illinois Compassionate Use Act. As Illinois sees more medical cannabis patients, attorneys can expect more claims involving drivers impaired or under the influence of cannabis within the state.

Proving impairment for registered qualifying patients, though, will be an issue. Medical cannabis products in Illi-nois have varying amounts of the delta-9 tetrahydrocannabinol (THC) in them, where THC is what is commonly con-sidered to cause the “high” or euphoric effect in users.212 For those that consume medical cannabis products with THC, any “high” is likely limited to about two hours, according to the National Highway Traffic Safety Administration (NHTSA), although Carboxy-THC (an inactive metabolite of THC) may stay in one’s system for as long as 30 days.213 Under these circumstances, positive testing for impairment or even evidence of physical impairment may be difficult to obtain.

Despite the fact that THC metabo-lizes differently than alcohol, some states have tried to address the impairment issue by setting a legal limit similar to the blood alcohol content limit set for alcohol. For example, Washington, Montana, and Colorado have set the legal limit for THC in a driver’s system at 5 ng/ML of blood, while Nevada’s and Ohio’s legal limits are 2 ng/ML and

Pennsylvania’s legal limit is 1 ng/ML.214 In other words, if the driver’s THC levels measure at or more than the legal limit, the driver is legally presumed to be impaired in that state.

A study published last year by Forensic Science International found that 9 out of 21 cannabis users tested above 5 ng/ML for THC 24 hours after con-sumption, while 2 of those 21 subjects still tested at 5 ng/ML for THC 5 days after consumption. As more studies on cannabis and impairment are completed, state laws that set a legal limit such as those laws in Washington, Montana, and others may be susceptible to challenges similar to that in Montgomery v. Harris.

In the Arizona case of Montgomery v. Harris, a driver was charged with DUI where the driver tested positive for Carboxy-THC (or THC-COOH) and Arizona’s law prohibited driving while any drug “metabolite” is in a person’s body.215 There, the state’s own expert witness testified that:

(1) marijuana has “many, many metabolites,” (2) Hydroxy-THC and Carboxy-THC are the two major marijuana metabolites, (3) although it is possible to test for Hydroxy-THC in the blood, the Arizona Department of Public Safety chooses not to do so because Hydroxy-THC does not “exist in the blood for very long” and is quickly converted to Carboxy-THC, (4) Carboxy-THC is inactive and does not cause impairment, and (5) Carboxy-THC can remain in a person’s body for as many as twenty-eight to thirty days after the ingestion of marijuana.216



Criticizing the state’s position, the Ari-zona Supreme Court called it “absurd” that the Arizona law could potentially cause a medical cannabis patient to be prosecuted for driving with THC-COOH in his or her system given that it remains in a driver’s system as many as 28-30 days after ingestion.217 The court noted Arizona’s DUI law is intended to prevent and punish impaired driving, but “unlike alcohol, there is no generally applicable concentration that can be identified as an indicator for [cannabis].”218 Ultimately, the court ruled that the presence of a non-impairing metabolite was not enough to consider someone driving while impaired and ordered the charge be dismissed.219

In conclusion, much debate contin-ues as to what is the appropriate legal limit for cannabis in a driver’s system, what THC metabolite may be relied on in testing impairment, and moreover, whether setting a legal limit for cannabis

similar to alcohol is appropriate at all. The law is rapidly developing as to cannabis and impairment, which creates even more uncertainty for attorneys who are undoubtedly faced with a future of increased claims involving a driver with cannabis in his or her system. The only solution is for counsel to stay abreast of this rapidly developing area of law or consult with co-counsel knowledgeable on the matter.

VII. Closing Thoughts

Hopefully, this Monograph has pro-vided an overview of the more significant workers’ compensation cases of the past eighteen months and helps provide some perspective on the issues faced by the workers’ compensation bar. These cases should help provide a backdrop as the General Assembly considers again the need for workers’ compensation reform

in Illinois. As is apparent from even a cursory reading of this Monograph, the vast majority of decisions rendered in the workers’ compensation arena are from the Illinois Appellate Court, Workers’ Compensation Commission Division. One of the proposals tendered in 2016 called for the elimination of the two justice statement of importance, imposed by Supreme Court Rule 315(a), as a pre-cursor for filing a petition for leave to appeal with the Illinois Supreme Court.220 Adoption of this amendment would permit an aggrieved party to request permissive appeal from the court directly without the need for two appel-late court justices to issue a statement that the case presents a significant issue warranting supreme court consideration. This change in the law would hopefully provide more opportunity for the parties to reach the Illinois Supreme Court.

(Endnotes)1 P.A. 94-227, 94th Gen. Assemb. (Ill. 2005).2 P.A. 97-18, 97th Gen. Assemb. (Ill. 2011); Robert D. Rondirielli, Guides to the Evaluation of Permanent Impairment (6th ed. Am. Med. Ass’n 2008).3 S.B. 771, 99th Gen. Assemb. (Ill. 2015); S.B. 1284, 99th Gen. Assemb. (Ill. 2015); H.B. 2420, 99th Gen. Assemb. (Ill. 2015).4 S.B. 769, 99th Gen. Assemb. (Ill. 2015).5 S.B. 1283, 99th Gen. Assemb. (Ill. 2015).6 S.B. 770, 99th Gen. Assemb. (Ill. 2015); H.B. 2418, 99th Gen. Assemb. (Ill. 2015).7 S.B. 772, 99th Gen. Assemb. (Ill. 2015).8 S.B. 2942, 99th Gen. Assemb. (Ill. 2016); S.B. 3043, 99th Gen. Assemb. (Ill. 2016); S.B. 2556, 99th Gen. Assemb. (Ill. 2016).; H.B. 6428, 99th Gen. Assemb. (Ill. 2016); H.B. 4300, 99th Gen. Assemb. (Ill. 2016).; H.B. 5751, 99th Gen. Assemb. (Ill. 2016); H.B. 5925, 99th Gen. Assemb. (Ill. 2016); H.B. 6416, 99th Gen. Assemb. (Ill. 2016); H.B. 6575, 99th Gen. Assemb. (Ill. 2016).

9 Commonwealth Edison Co. v. Indus. Comm’n, 86 Ill. 2d 534, 537 (1981).10 Sjostrom v. Sproule, 33 Ill. 2d 40, 43 (1965).11 Kertis v. Ill. Workers’ Comp. Comm’n, 2013 IL App (2d) 120252WC, ¶ 16. 12 Robinson v. Indus. Comm’n, 96 Ill. 2d 87, 92 (1983). 13 Venture-Newberg-Perini, Stone & Webster v. Ill. Workers’ Comp. Comm’n, 2013 IL 115728.14 Venture-Newberg-Perini, Stone & Webster, 2013 IL 115728, ¶¶ 31, 32.15 Mlynarczyk v. Ill. Workers’ Comp. Comm’n, 2013 IL App (3d) 120411WC, ¶ 6. 16 Mlynarczyk , 2013 IL App (3d) 120411WC, ¶ 3.17 Id.18 Id. ¶ 4.19 Id. ¶ 5. 20 Id. 21 Id.

22 Mlynarczyk , 2013 IL App (3d) 120411WC, ¶ 5.23 Id. 24 Id. ¶ 6. 25 Id. 26 Id. 27 Id. 28 Mlynarczyk , 2013 IL App (3d) 120411WC, ¶ 6.29 Id. 30 Id. ¶ 9. 31 Id. ¶ 10. 32 Id. ¶ 16. 33 Id. ¶¶ 16, 19. 34 Mlynarczyk , 2013 IL App (3d) 120411WC,¶ 19. 35 Id. ¶ 20. 36 Pryor v. Ill. Workers’ Comp. Comm’n, 2015 IL App (2d) 130874WC, ¶ 7.37 Pryor, 2015 IL App (2d) 130874WC, ¶ 5.


38 Id.39 Id. 40 Id. ¶ 6. 41 Id. 42 Id. 43 Pryor, 2015 IL App (2d) 130874WC, ¶ 6.44 Id. ¶ 7. 45 Id. 46 Id. 47 Id. 48 Id. ¶ 12. 49 Pryor, 2015 IL App (2d) 130874WC, ¶ 15. 50 Id. 51 Id. ¶ 16. 52 Id. ¶ 29. 53 Id. ¶ 28. 54 Id. ¶ 29.55 Nee v. Ill. Workers’ Comp. Comm’n, 2015 IL App (1st) 132609WC.56 Nee, 2015 IL App (1st) 132609WC, ¶ 20.57 Id. ¶ 28.58 Id. ¶ 26.59 Id.60 Id. ¶ 25. 61 United Airlines, Inc. v. Ill. Workers’ Comp. Comm’n, 2016 Ill App (1st) 151693WC. 62 United Airlines, Inc., 2016 Ill App (1st) 151693WC, ¶ 1.63 Id.64 Id. ¶ 2.65 Id. ¶ 4.66 Id.67 Id. ¶ 5.68 United Airlines, Inc., 2016 Ill App (1st) 151693WC, ¶ 6. 69 Id. ¶ 8. 70 Id. ¶¶ 8-9.71 Id. ¶ 9.72 Id. ¶ 7.73 Id. ¶ 10.74 United Airlines, Inc., 2016 Ill App (1st) 151693WC, ¶ 13.75 Id.76 Id. ¶ 14.77 Id. 78 Id. ¶ 15.

79 Id.80 United Airlines, Inc., 2016 Ill App (1st) 151693WC, ¶ 15.81 Id.82 Id.83 Id. ¶ 19.84 Id. ¶ 25.85 Id. ¶¶ 27-28.86 United Airlines, Inc., 2016 Ill App (1st) 151693WC, ¶¶ 27-28. 87 Id. ¶ 31.88 Id. ¶ 32.89 Met. Water Reclam. Dist. of Greater Chi. v. Ill. Workers’ Comp. Comm’n, 407 Ill. App. 3d 1010, 1013-14 (1st Dist. 2011). 90 Caterpillar Tractor Co. v. Indus. Comm’n, 129 Ill. 2d 52, 58 (1989).91 Met. Water Reclam. Dist. of Greater Chi., 407 Ill. App. 3d at 1013-14.92 Caterpillar Tractor Co., 129 Ill. 2d at 58.93 Village of Villa Park v. Ill. Workers’ Comp. Comm’n, 2013 IL App (2d) 130038WC, ¶ 19.94 Autumn Accolade v. Ill. Workers’ Comp. Comm’n, 2013 IL App (3d) 120588WC, ¶ 15.95 Autumn Accolade, 2013 IL App (3d) 120588WC, ¶ 15.96 Id.97 Bolingbrook Police Dept. v. I l l . Workers’ Comp. Comm’n, 2015 IL App (3d) 130869WC, ¶ 55.98 Id.99 Id. ¶ 13.100 Adcock v. Ill. Workers’ Comp. Comm’n, 2015 IL App (2d) 130884WC, ¶¶ 43-44.101 Adcock, 2015 IL App (2d) 130884WC, ¶ 44.102 Id.103 820 ILCS 305/8(d); Hartlein v. Ill. Power Co., 151 Ill. 2d 142, 166 (1992); Hayden v. Indus. Comm’n, 214 Ill. App. 3d 749 (1st Dist. 1991).104 Interstate Scaffolding v. Ill. Workers’ Comp. Comm’n, 236 Ill. 2d 132 (2010).105 Interstate Scaffolding, 236 Ill. 2d at 149.106 Id. at 137-38.107 Id. at 146.108 Id. at 146-47.109 Id.110 Otto Baum LLC, Inc. v. Ill. Workers’ Comp. Comm’n, 2011 IL App (4th) 100959WC.

111 Otto Baum, 2011 IL App (4th) 100959WC, ¶ 14.112 Id.113 Sunny Hill of Will Cnty. v. Ill. Workers’ Comp. Comm’n , 2014 IL App (3d) 130028WC.114 Sunny Hill, 2014 IL App (3d) 130028WC, ¶ 27.115 Id. 116 Matuszczak v. Ill. Workers’ Comp. Comm’n, 2014 IL App (2d) 130532WC.117 Matuszczak, 2014 IL App (2d) 130532WC ¶ 8.118 Id. ¶ 20.119 Id. ¶ 25.120 Sharwarko v. Ill. Workers’ Comp. Comm’n, 2015 IL App (1st) 131733WC.121 Sharwarko , 2015 IL App (1s t ) 1317733WC, ¶ 18.122 Id. ¶ 43.123 Id. ¶ 47.124 Cesario v. Ill. Workers’ Comp. Comm’n, 2016 IL App (1st) 131705WC-U.125 Cesario, 2014 IL App (1st) 131705WC-U, ¶ 6.126 Id. ¶ 8.127 Id. 128 Id. ¶ 15.129 P.A. 97-18, § 15, 97th Gen. Assemb. (Ill. 2011).130 820 ILCS 305/8.1b(a).131 Id.132 Id.133 Id. § 8.1b(b).134 Cont’l Tire of the Americas, LLC v. Ill. Workers’ Comp. Comm’n, 2015 IL App (5th) 140445WC. 135 Cont’l Tire of the Americas, 2015 IL App (5th) 140445WC, ¶ 17.136 Id.137 Id. ¶ 18.138 Id.139 Corn Belt Energy Corp. v. Ill. Workers’ Comp. Comm’n , 2016 IL App (3d) 150311WC.140 Corn Belt Energy Corp., 2016 IL App (3d) 150311WC, ¶¶ 49, 52.141 Cent. Grocers v. Ill. Workers’ Comp. Comm’n, No. 3-15-0557WC (Ill. App. Ct.



Workers’ Comp. Div. argued June 15, 2016). Given the decision in Corn Belt Energy, it is presumed the appellate court will reach the same conclusion in this case, as the issues concerning section 8.1b were identical. 142 Weaver v. Ill. Workers’ Comp. Comm’n, 2016 IL App (4th) 150152WC.143 820 ILCS 305/19(h).144 Weaver, 2016 IL App (4th) 150152WC, ¶ 3. 145 Id. ¶ 4.146 Id. ¶ 5.147 Id. ¶ 6. 148 Id.149 Id.150 Weaver, 2016 IL App (4th) 150152WC, ¶ 7. 151 Id.152 Id. ¶ 8. 153 Id. ¶ 10. 154 Id. 155 Id. ¶ 24. 156 Id. ¶ 13 (citing Cuneo Press, Inc. v. Indus. Comm’n., 51 Ill. 2d 548, 549 (1972)).157 Id. ¶ 15 (citing Cuneo Press, Inc., 51 Ill. 2d at 549).158 Id. ¶ 23. 159 As of the time of writing, a petition for rehearing has been filed with the appellate court, but not ruled upon.160 Farrar v. Ill. Workers’ Comp. Comm’n, 2016 IL App (1st) 143129WC, ¶ 1. 161 Ill. Admin. Code tit. 50, § 9020.90(a) (1982). 162 Farrar, 2016 IL App (1st) 143129WC, ¶ 2.163 Id. 164 Id.165 Id. ¶ 3. 166 Id. ¶ 12; 820 ILCS 305/16. 167 Farrar, 2016 IL App (1st) 143129WC, ¶ 12 (citing Preston v. Indus. Comm’n, 332 Ill. App. 3d 708, 712 (3d Dist. 2002)). 168 Farrar, 2016 IL App (1st) 143129WC, ¶ 13. 169 Kotecki . Cyclops Welding Corp., 146 Ill. 2d 155 (1991).170 Burhmester v. Steve Spiess Constr., Inc. 2016 IL App (3d) 140794, ¶ 4.171 Id.

172 Id.173 Id.174 410 ILCS 130/1.175 410 ILCS 130/10.176 See 410 ILCS 130; P.A. 99-0031, 99th Gen. Assemb. (Ill. 2016).177 410 ILCS 130/40(d).178 820 ILCS 305/11.179 Cockrell v. Farmers Ins. Group./Liberty Mut. Ins., Nos. ADJ2584271, ADJ504565, 2015 Cal. Wrk. Comp. P.D. LEXIS 95, ¶ 1, (Cal. Workers’ Comp. Appeal Bd. July 18, 2014).180 Cockrell, 2015 Cal. Wrk. Comp. P.D. LEXIS 95, ¶ 1.181 Id. ¶ 3.182 Cockrell, 2012 Cal. Wrk. Comp. P.D. LEXIS 456.183 Cockrell v. Farmers Ins.; Liberty Mut. Ins. Co., Nos. ADJ2584271, ADJ504565, 2015 WL 1577995, at *1-2 (Cal. Workers’ Comp. Appeal Bd. Mar. 13, 2015).184 Id. at *2.185 Id.186 Id. at *2-3.187 McKinney v. Labor Ready and ESIS, Inc., No. 5005302, 2002 WL 32125774, * 1 (Iowa Workers’ Comp. Comm’n Nov. 14, 2002).188 McKinney, 2002 WL 32125774, at *1.189 Id.190 Id. at *3.191 Id.192 Oregon Medical Marijuana Act, Or. Rev. Stat. 475B.413(1) (2016).193 Noll v. LePage Bakeries, Inc., No. 12-003547B, 2015 ME Wrk Comp. LEXIS 145, ¶ 1, (Me. Work. Comp. Bd. Sept. 18, 2015).194 Noll, 2015 ME Wrk Comp. LEXIS 145, ¶ 3.195 Id. ¶¶ 4, 10.196 Id. ¶¶ 10, 12.197 Id. ¶ 15.198 Id. 199 Id. 200 Bourgoin v. Fraser Paper Ltd. & Sedgwick Claims Mgmt., No. 89-01-36-55, 2015 WL 1811598, (Me.Work. Comp Bd. Mar. 16, 2015).201 Bourgoin, 2015 WL 1811598; See Nelson J. Larkins, et al., Maine Workers’

Compensation Board Rules on Compensability of Medical Marijuana; Apellate Division to Ultimately Rule on the Issue Following Recent Oral Argument, Preti Flaherty (Feb. 11, 2016), available at http://www.preti.com/publications/maine-workers-compensation-board-rules-on-compensability-of-medical-marijuana-appellate-division-to-ultimately-rule-on-the-issue-following-recent-oral-argument/.202 410 ILCS 130/40(d).203 820 ILCS 305/11.204 720 ILCS 550/1.205 720 ILCS 570/100.206 720 ILCS 690/0.01.207 820 ILCS 305/11.208 720 ILCS 550/1; 720 ILCS 550/1.209 720 ILCS 570/100.210 720 ILCS 690/0.01.211 820 ILCS 305/11.212 Health Canada, Information for Health Care Professionals, Cannabis (marihuana, marijuana) and the cannabinoids, p. 11 (2013), http://www.hc-sc.gc.ca/dhp-mps/alt_formats/pdf/marihuana/med/infoprof-eng.pdf.213 See Nat’l Highway Traffic Safety Admin., Drugs and Human Performance Fact Sheets: Cannabis/Marijuana, (Apr. 2014), available at http://www.nhtsa.gov/people/injury/research/job185drugs/cannabis.htm; see also Paul L. Cary, The Marijuana Detection Window: Determining the Length of Time Cannabinoids will Remain Detectable in Urine Following Smoking, Nat’l Drug Counsel Inst. (2006), http://www.ndci.org/sites/default/files/ndci/THC_Detection_Window_0.pdf.214 D r u g - I m p a i re d D r i v i n g L a w s , Governors Highway Safety Assoc. (June 2016), available at http://www.ghsa.org/html/stateinfo/laws/dre_perse_laws.html.215 Montgomery v. Harris, 234 Ariz. 343 (2014).216 Montgomery, 234 Ariz. at 343-44.217 Id. at 346.218 Id. at 347.219 Id. at 347-48.220 S.B. 2942, 99th Gen. Assemb. (Ill. 2016).


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The Illinois Association of Defense Trial Counselc919297.r97.cf2.rackcdn.com/ugip7fy1fkkcwyijdaxoapujmfj2...The Illinois Association of Defense Trial Counsel Third Quarter 2016 l Volume