Unnecessary Changes to Illinois Civil Jury Instructions

June 18, 2011

 

In the last ten years, we have witnessed an unprecedented number of changes to the Illinois Pattern Jury Instructions (Civil), including changes to longstanding and well established instructions. One of these changes was the 2006 revision to instruction 105.01 which sets forth the standards to be applied in professional negligence cases. This week, the Illinois Supreme Court indicated that the 2006 revision is an incorrect statement of the law. Studt v. Sherman Health Systems, ___ Ill. 2d ___ (No. 108182 June 16, 2011). A pdf copy of the Court’s recent decision may be found at the official Illinois courts website: http://www.state.il.us/court/Opinions/SupremeCourt/2011/June/108182.pdf

Without going into great detail on the reasons for the 2006 revision to instruction number 105.01, it should be sufficient to say that the prior version indicated that the professional “must possess and apply the knowledge and use the skill and care ordinarily used by a reasonably well-qualified [professional].” The revised 2006 version states that professional negligence “is the failure to do something that a reasonably careful [professional] would do, or the doing of something that a reasonably careful [professional] would not do, under circumstances similar to those shown by the evidence.” The change was said to have a subtle but pronounced effect on the way in which jurors could apply evidence of professional misconduct of individual professionals (as opposed to institutional defendants such as hospitals).

 

When the 2006 revision was implemented, many of us did not understand why the change was made. After all, the prior version had not been the subject of any great controversy and it had been used for a very long time without apparent concern. Moreover, there had not been a notable change in case law on the standards to be applied to doctors and other professionals in malpractice cases.

 

Since the revision was put in place five years ago, many professional malpractice trials have proceeded in which the trial judges have had to struggle with the question of whether to instruct the jury using the revised pattern jury instruction or to use the prior (or some other) version of instruction 105.01. It appeared to many judges that the new instruction was an incorrect statement of the law. Many Cook County judges created their own jury instruction on the issue in recognition of the problem created by the 2006 revision. A few appellate court cases have pivoted on the issue as well, causing unnecessary delay in the final disposition of these matters. See, e.g., Lasalle Bank, N.A. v. C/HCA Devel. Corp., 384 Ill. App. 3d 806 (1st Dist. 2008) and Matarese v. Buka, 386 Ill. App. 3d 176 (1st Dist. 2008).

 

I hope that this week’s decision by the Supreme Court in Studt will cause the Supreme Court’s Committee on Jury Instructions to take pause before they begin “fiddling” with established jury instructions. Perhaps the Supreme Court even needs to intervene to require closer scrutiny of changes recommended by the Committee because one of the most important elements of the justice system is a clear and unequivocal statement of the law which will be consistently applied at trial. When pattern jury instructions are frequently changed, the predictably of the law which will be applied is diminished, which means confidence in the system is damaged. The next change by the Committee, however, should be to formally revoke the 2006 revision to 105.01 with an explanation of why it acted imprudently in making that earlier alteration.

 

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Uh oh … Will Supreme Court Rule 213 Become Old Rule 220?

April 8, 2011

 

Illinois Supreme Court Rule 220 no longer exists. It was eliminated because it became watered down and unworkable. Rule 220 was intended to provide a responsible framework for the disclosure of expert witness opinions. Over time, the reviewing courts in Illinois created exception after exception to the rule. Eventually, everyone agreed the rule had become ineffectual.

Thus sprang forth Illinois Supreme Court Rule 213, implemented to replace Rule 220. With some adjustments here and there, Rule 213 has been reasonably effective in setting out a clear, understandable and workable outline for expert discovery. A key to its potency has been its mechanism to bar experts whose opinions had not been properly disclosed.

Under Rule 213(f)(1), a party’s disclosure of non-experts “must identify the subjects on which the witness will testify.” Under 213(f)(2) and (3), a party’s disclosure of experts (either retained or independent experts) “must identify the subjects on which the witness will testify and the opinions the party expects to elicit” from the witness. [Note: This is the language applicable to independent experts; the language applicable to retained experts is similar but even more specific and also requires the bases for the opinions be disclosed.]

Rule 213 appears to be very clear that a party must be specific in identifying expert opinions. Of course, case law has also established that an expert “may elaborate on a disclosed opinion as long as the testimony states logical corollaries to the opinion, rather than new reasons for it.” Barton v. Chicago & North Western Transportation Co., 325 Ill. App. 3d 1005, 757 N.E.2d 533 (2001). Nevertheless, the opinion must be disclosed (along with the bases for the opinion).

Recently, in Timothy Whelan Law Associates, Ltd. v. Kruppe, ___ Ill. App. 3d ___ (2d Dist. No. 2_09_1234 March 31, 2011), the Second District Appellate Court issued a decision which opens a hole in Rule 213’s requirement that an expert’s opinions must be fully disclosed in advance of a trial. This was a lawsuit seeking collection of a lawyer’s unpaid fees. The plaintiff, an attorney, was identified in his Rule 213(f) disclosures as a witness who would testify

“regarding the existence of a contract between plaintiff and defendant, the nature of the services provided, and the damages it incurred as a result.”

At trial, the plaintiff/attorney was permitted to testify that the fees he charged to his client, the defendant, were reasonable. Clearly, the Rule 213(f) disclosure did not explicitly state he would so testify. The defendant objected to this trial testimony as not having been disclosed under Rule 213. The trial court overruled the objection, however, indicating the opinion was encompassed within the Rule 213 disclosure.

The appellate court sustained the trial court, finding that because the plaintiff had disclosed he would testify “regarding” his damages, that would reasonably include giving an opinion that his fees were reasonable.

I dissent.

There should be little doubt that the plaintiff’s Rule 213 disclosure was not sufficient to allow the opinion testimony permitted by the trial court. In fact, the plaintiff’s Rule 213 disclosure could only meet the requirement of Rule 213(f)(1), applicable to non-expert witnesses, that only the “subjects on which the witness will testify” be provided. Merely disclosing an expert will testify “regarding” an element of the cause of action does not indicate what that testimony will be or if it will be an expert opinion. If the disclosure made by plaintiff in the Whelan case had been for a non-expert witness, it would have been sufficient. The fact it was being offered as a disclosure of an expert witness opinion, however, requires more specificity and detail.

The modest disclosure that the plaintiff would testify “regarding” damages not only fails to identify the opinion regarding damages which was intended to be offered at trial, but it also fails to identify the bases for any such opinion (as required by Rule 213(f)(3)).

“The Rule 213 disclosure requirements are mandatory and subject to strict compliance by the parties.” Sullivan v. Edward Hospital, 209 Ill. 2d 100, 109, 806 N.E.2d 645 (2004). Rule 213 requires full disclosure of experts’ opinions and the bases for those opinions, and any deviation from the rule should not be allowed, even if proffered “in the interests of justice.” Dept. of Transp. v. Crull, 294 Ill. App. 3d 531, 690 N.E.2d 143 (1998).

Illinois appellate courts have previously dealt situations similar to the Whelan case and found very general, non-specific disclosures to not comply with Rule 213. In Kim v. Mercedes_Benz, 353 Ill.App.3d 444, 818 N.E.2d 713 (2004), the court held a plaintiff’s general disclosure that he would testify at trial “about the matters alleged in plaintiff’s complaint” is insufficient and does not give adequate notice to the defendant of the plaintiff’s intention to offer opinions regarding his damages. Additionally, in Lisowski v. MacNeal Memorial Hospital Assn., 381 Ill.App.3d 275, 885 N.E.2d 1120 (2008), the court ruled where the plaintiff’s Rule 213 disclosures only indicated the expert would testify to “all of the other problems” of the plaintiff, but the topics “depression” and “suicide” were never mentioned in the disclosures, the catchall phase “all of the other problems” was found to not be specific enough to meet the strict requirements of Rule 213, so the expert was properly barred from testifying that plaintiff became suicidal and depressed.

The Second District’s decision in Whelan backs off of Rule 213’s strict requirements of full and complete disclosure of expert opinions. Let’s hope the decision becomes an isolated, unaccepted part of Rule 213’s background. Otherwise, we should already start thinking about which rule is going to replace Rule 213 — just as Rule 213 replaced old Rule 220.


Health Care Lienholders Need Not Pay a Portion of the Expenses of a Lawsuit Which Permitted Recovery for the Lien

March 29, 2011

The recent Illinois Supreme Court decision of Wendling v. Southern Illinois Hospital Services, ___ Ill. 2d ___ (Nos. 110199, 110200 cons. March 24, 2011) clarified a point of law which lawyers and others too often misunderstand. Importantly, the Court explained the differences between a statutory lien claim and a subrogation claim. If you wish to review a copy of the decision from the official Illinois courts website, you may access it here: http://is.gd/N1nI1u

In Wendling, the Court reasserted that the “common fund doctrine” does not apply to statutorily created health care liens such as those imposed by hospitals which have billed for care they provided. Thus, in the event of a settlement or judgment on behalf of an injured plaintiff, the health care provider’s lien must be satisfied in full and no deduction can be retained by the plaintiff either for attorney’s fees or the costs of the litigation.

In Illinois, health care providers may assert a lien on the value of the services which they have provided to a personal injury plaintiff. The lien is permitted only because a statute created that right: The Health Care Services Lien Act, 770 ILCS 23/1 et seq. Under the Act, the total amount of all health care liens is limited to 40% of the judgment or settlement. However, if the total amount of the providers’ bills were not satisfied completely, the providers still have the right to pursue the patient directly for the remaining amount of the bills which were not satisfied by the lien recovery. 770 ILCS 23/45.

As explained by the Wendling Court, the Illinois version of the “common fund” doctrine provides “‘a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole.’ [cit. omitted] Underlying the doctrine is the equitable concept that the beneficiaries of a fund will be unjustly enriched by the attorney’s services unless they contribute to the costs of the litigation. [cits. omitted] Courts have applied the common fund doctrine in numerous types of civil litigation, including insurance subrogation claims, class actions, and wrongful_death cases involving an intervenor.[cits. omitted]” In other words, if an entity has paid funds which it would not ordinarily be able recover from anyone, for example an insurance company which was contractually obligated to pay for its insured’s medical expenses, and a lawyer creates a fund (settlement or judgment amount) which permits that entity to recover those outlays, then the entity must share a part of the recovery to pay the party for its costs in creating the fund.

In Wendling, the plaintiff tried to claim that a hospital which had a statutorily created lien, not a subrogation claim, should pay a portion of its lien for the plaintiff’s attorney’s fees and the costs of the lawsuit. Many of us believed this issue had already been decided by the Supreme Court in Maynard v. Parker, 75 Ill. 2d 73, 387 N.E.2d 298, 25 Ill. Dec. 642 (1979), but this time there were powerful amicus curiae briefs filed by the trial lawyers. In the end, the Supreme Court reaffirmed its 1979 holding in Maynard.

Along the way, the Supreme Court noted the differences between subrogation interests and lien claims. Primarily of interest for this decision, the holder of a statutorily created lien has the right to be paid for the lien amount irrespective of whether a recovery is made in the plaintiff’s lawsuit. In essence, the health care provider is the creditor and the plaintiff is the debtor, and the plaintiff must pay for his/her medical bills regardless of what happens in the P.I. lawsuit. In contrast, the holder of a subrogation claim does not ordinarily have an independent right to recover the amounts which were paid to or on behalf of the P.I. plaintiff. The only way the subrogation claimholder can recover is if a fund is created by settlement or judgment in the underlying lawsuit. Accordingly, the Supreme Court noted it to be fair that the subrogation claimant pay a part of the plaintiff’s costs of creating the “common fund” which allowed reimbursement to the subrogee. However, a health care provider with a statutory lien does not need the “common fund” to get paid for its services as the P.I. plaintiff will be required to pay the provider even if a lawsuit has not been filed.

It should be noted that trial lawyers are already trying to have the Illinois legislature enact a law which would get around the holding of this case (and the case law since 1979) by seeking to amend the Health Care Services Lien Act.


Supreme Court Rectifies “Open-Ended Liability” For Construction Contractors and Engineers

January 21, 2011

On January 21, 2111, the Illinois Supreme Court handed down its unanimous decision in Thompson v. Gordon. The Court reversed the holding of the appellate court. I previously commented on the appellate court’s decision, noting the appellate court misapplied the law which sets forth duties of construction entities, and I expressed my hope the Supreme Court would resolve the issues raised by the appellate court’s decision. (See https://triallaw.wordpress.com/2010/06/02/open-ended-liability-for-contractorsengineers/).

Today, the Supreme Court rectified the appellate court’s errant analysis. A copy of the Supreme Court’s decision can be accessed here through the court’s official website: http://www.state.il.us/court/Opinions/SupremeCourt/2011/January/110066.pdf

The case involves a construction engineer who signed a contract to “replace” a bridge. A motorist traveling through the section of replaced bridge was killed in an accident. Her estate sued the engineer alleging he should have done more than just “replace” the prior bridgework but should have improved it to add better median barriers which might have prevented the death.  The appellate court ruled (1) the scope of services section of the construction contract only required “replacement” of the bridge (not improvement), but (2) the portion of the contract which required the engineer to meet professional practice standards raised a question of fact as to whether he should have also suggested and implemented “improvements” to the bridgework.

The Supreme Court ruled that the appellate court was incorrect in determining the scope of the duty by applying a professional negligence standard of care duty, even though the actual scope of the engineer’s duty was contractually established as mere replacement of the prior bridgework. Although the contract indicated the engineer would apply the same skills as other engineers, the Supreme Court held the skill was only that which would be applied to the scope of the contract work, namely the “replacement” of the bridgework (not its improvement).

Importantly, the Supreme Court reinforced its earlier ruling in Ferentchak v. Village of Frankfort105 Ill. 2d 474 (1985). Here, the Court stated that Ferentchak‘s “actual holding … was that the degree of skill and care required of the civil engineer depended on his contractual obligation, and the scope of that duty was defined by the contract.”

This Supreme Court decision  which developed after the appellate court’s ruling. They were concerned about being held liable for work which was done completely according to contractual requirements, but which an “expert” would criticize after the fact as not having been enough in spite of complying with the contract.

Now, with this decision, it seems clear that courts addressing claims against construction entities must first determine the scope of the services contracted for, and second, determine if the work done only on that scope of services was done properly.

This is a good decision which reestablishes long-held law, clarifies the analysis to be used by trial courts, and allows construction entities to have more certainty about the litigation risks to which they might be exposed.


Illinois Adopts Rules of Evidence

October 4, 2010

 

Until now, the admissibility of evidence in Illinois was primarily governed by the developing case law of reviewing court decisions. Recently, however, the Illinois Supreme Court adopted formal, codified Rules of Evidence. These Rules take effect January 1, 2010. A copy of the Rules may be found here:

http://www.state.il.us/court/SupremeCourt/Announce/2010/092710_2.pdf

As an older lawyer who has worked with the case law pronouncements of our evidentiary rules, I do not fully understand why formal, codified Rules of Evidence must now be imposed. This is especially true given the fact that the Rules of Evidence, as stated in the Commentary accompanying the Rules indicates that these codified Rules for the most part merely restate the case law development of evidentiary rules. In any event, this is the statement  of the Supreme Court committee as to why these Rules were promulgated:

Currently, Illinois rules of evidence are dispersed throughout case law, statutes, and Illinois Supreme Court rules, requiring that they be researched and ascertained from a number of sources. Trial practice requires that the most frequently used rules of evidence be readily accessible, preferably in an authoritative form. The Committee believes that having all of the basic rules of evidence in one easily accessible, authoritative source will substantially increase the efficiency of the trial process as well as expedite the resolution of cases on trial for the benefit of the practicing bar, the judiciary, and the litigants involved. The Committee further believes that the codification and promulgation of the Illinois Rules of Evidence will serve to improve the trial process itself as well as the quality of justice in Illinois.

Truthfully, I don’t believe the presence of these Rules will significantly affect trial practice. Analogous to the adage, “the devil is in the details,”  trial court rulings on the admissibility of evidence will depend on how the appellate courts interpret the general statements of law found in these Rules of Evidence. To the extent that will be founded upon the pre-Rules of Evidence case law, I guess I won’t have to throw out my case law trial book which is 600 pages long in 10 point type and which I have maintained for the last 25 years — thank goodness.


Voir Dire: Lessons From the Blagojevich Trial (Let’s find some smart jurors)

June 10, 2010

 

The “Ward Room” blog posted an interesting item authored by Phil Rogers titled “Surprise: Some Jurors Don’t Know a Thing About Blago.” It can be found at: http://is.gd/cKwiY

The piece reviewed the voir dire process in the corruption trial of ex-Governor Rod Blagojevich. Among the interesting bits of information about the potential jurors for the case was the fact that several of them stated they knew NOTHING about the whole Blagojevich scandal.

Really? They knew nothing about Blagojevich’s impeachment? They knew nothing about Blagojevich being plastered across our TV screens for the past year or more?

OK, fine, let’s assume they are telling the truth and that they know nothing about the allegations against Blago. I suppose that inherently means they must be able to be fair to our ex-Governor during the trial.

I wonder though: Do we really want people who are completely ignorant of the world around them being jurors in one of the most celebrated political corruption trials in history?

I know we cannot and should not impose intelligence requirements on jurors. Nor can we require that prospective jurors read a certain number of newspaper per year. But it is absolutely amazing to me that we can live in a society in which we are constantly bombarded by information and still find people who choose to shield themselves from all of it.

Are people who claim utter ignorance of the world around them necessarily felt to be “good” jurors merely because they can say they have not prejudged the case? This is where I part ways with the philosophy of a good many judges who say that lawyers are only entitled to an extremely limited voir dire which serves the sole purpose of finding jurors who can be “fair” to all sides.

I believe the voir dire system should aspire to more than just finding people who are blank slates. It is important to have jurors who have a sense of curiosity; who are willing to absorb information; who will use their common sense to see the evidence for what it really is; who will be willing to challenge the ideas posited by the attorneys.

In sum, I want smart jurors. And, I don’t want to have my wrist slapped by a trial judge because I want to find out which magazines they read, or the types of websites they visit. Lawyers should be given the tools they need to find jurors who are sufficiently intellectually curious to allow people to have confidence that the justice system comes to the correct result.


Jackson v. Reid: Party Experts and Bases For Their Opinions

June 1, 2010

A new opinion out of the third district appellate court clarifies some evidentiary and witness rules at trial. The decision is Jackson v. Reid, ___ Ill. App. 3d ___ (3d Dist. No. 3–09–0512 May 24, 2010). It can be found on the Illinois courts’ official website at http://www.state.il.us/court/Opinions/AppellateCourt/2010/3rdDistrict/May/3090512.pdf

The case holds as follows:

(1) A party who is also disclosed as an expert under 213(f)(3) must disclose his/her research and publications reviewed, regardless of whether the material is solely relied upon by the witness in support of his/her opinions. Further, the opposing party has the right to fully cross-examine the party-witness on those results. The court makes clear that research done by a party-expert (whether to educate the party’s attorney or for the party’s own opinions) is not protected by attorney-client or work product privileges.

(2) A chart prepared by the author of an article which merely summarizes certain professional guidelines but does not state them precisely (word for word) cannot be admitted as an independent evidentiary exhibit as it does not represent the actual guidelines or industry standards authorized and issued by the professional society. In “Illinois, scientific and medical treatises are hearsay and are inadmissible as proof of the statements contained therein.”

(3) One cannot admit medical records as business records unless there is a witness who can testify that he/she is familiar with the doctor’s record-keeping practices, the records were made in the regular course of business, and it was the regular course of the business to make such records (per Supreme Court Rule 236).