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The Illinois Association of Defense Trial Counsel

First Quarter 2016

l Volume 26, Number 1

l

ISSN-2169-3668

MONOGRAPH

Beyond HIPAA: Solving the Puzzle of Properly Acquiring Mental Health Records in Litigation

FEATURE ARTICLES Amicus Briefs from Unlikely Sources: Recent Examples Are the IPI Instructions on Construction Negligence an Accurate Statement of Illinois Law? Practice Guideline— Expert Discovery: A Primer on Depositions of Liability Experts in Non-Medical Cases

Illinois Association of Defense Trial Counsel WWW.iadtc.org

PRESIDENT TROY a. BOZARTH HeplerBroom LLC, Edwardsville PRESIDENT-ELECT R. MARK MIFFLIN Giffin, Winning, Cohen & Bodewes, P.C., Springfield 1ST VICE PRESIDENT MICHAEL L. RESIS SmithAmundsen LLC, Chicago 2ND VICE PRESIDENT Bradley C. Nahrstadt Lipe, Lyons, Murphy, Nahrstadt & Pontikis Ltd., Chicago SECRETARY/TREASURER WILLIAM k. MCVISK Johnson & Bell, Ltd., Chicago Directors DENISE BAKER-SEAL Brown & James, P.C., Belleville Laura K. Beasley Joley, Oliver & Beasley, P.C., Belleville Joseph A. Bleyer Bleyer and Bleyer, Marion JEREMY T. BURTON Lipe, Lyons, Murphy, Nahrstadt & Pontikis Ltd., Chicago R. Mark Cosimini Rusin & Maciorowski, Ltd., Champaign BRUCE DORN Bruce Farrel Dorn & Associates, Chicago donald patrick eckler Pretzel & Stouffer, Chartered, Chicago JOSEPH G. FEEHAN Heyl, Royster, Voelker & Allen, P.C., Peoria Terry A. Fox Kelley Kronenberg, Chicago EDWARD K. GRASSÉ Busse, Busse & Grassé, P.C., Chicago Stephen G. Loverde Law Office of Steven A. Lihosit, Chicago Paul R. Lynch Craig & Craig, LLC, Mt. Vernon NICOLE D. MILOS Cremer, Spina, Shaughnessy, Jansen & Siegert, LLC, Chicago DONALD J. O’MEARA, JR. Pretzel & Stouffer, Chartered, Chicago IAN J. RUSSELL Lane and Waterman LLP, Davenport BENJAMIN J. SAMUELSON Betty, Neuman & McMahon, P.L.C., Davenport SCOTT D. STEPHENSON Litchfield Cavo LLP, Chicago Tracy E. Stevenson Robbins Salomon & Patt, Ltd., Chicago PATRICK W. STUFFLEBEAM HeplerBroom LLC, Edwardsville MicHELLE M. WAHL Swanson, Martin & Bell, LLP, Chicago EXECUTIVE DIRECTOR Sandra J. Wulf, CAE, IOM

COLUMNISTS James K. Borcia — Tressler LLP, Chicago Troy A. Bozarth — HeplerBroom LLC, Edwardsville Lindsay Drecoll Brown — Cassiday Schade LLP, Chicago Julie A. Bruch — O’Halloran Kosoff Geitner & Cook, LLC, Northbrook Catherine A. Cooke — Robbins, Salomon & Patt, Ltd., Chicago Stacy E. Crabtree — Heyl, Royster, Voelker & Allen, P.C., Peoria Donald Patrick Eckler — Pretzel & Stouffer, Chartered, Chicago Brad A. Elward — Heyl, Royster, Voelker & Allen, P.C., Peoria Ryan M. Frierott — Goldberg Segalla LLP, Chicago Scott L. Howie — Pretzel & Stouffer, Chartered, Chicago M. Elizabeth D. Kellett — HeplerBroom LLC, Edwardsville Timothy R. Lessman — SmithAmundsen LLC, Chicago David A. Perkins — Heyl, Royster, Voelker & Allen, P.C., Peoria Bradford J. Peterson — Heyl, Royster, Voelker & Allen, P.C., Urbana Craig L. Unrath — Heyl, Royster, Voelker & Allen, P.C., Peoria Dede K. Zupanci — HeplerBroom LLC, Edwardsville

CONTRIBUTORS Quinn P. Donnelly — Pretzel & Stouffer, Chartered, Chicago Howard L. Huntington — Bullaro & Carton, P.C., Chicago Zeke N. Katz — HeplerBroom LLC, Edwardsville N. Drew Kemp — Thompson Coburn LLP, Belleville Kevin P. Lolli — Goldberg Segalla LLP, Chicago Mallory Morgan — Goldberg Segalla LLP, Chicago Judge Donald J. O’Brien, Jr. (ret.) — Johnson & Bell, Ltd., Chicago Emily J. Perkins — Heyl, Royster, Voelker & Allen, P.C., Peoria

Past Presidents: Royce Glenn Rowe • James Baylor • Jack E. Horsley • John J. Schmidt • Thomas F. Bridgman • William J. Voelker, Jr. • Bert M. Thompson • John F. Skeffington • John G. Langhenry, Jr. • Lee W. Ensel • L. Bow Pritchett • John F. White • R. Lawrence Storms • John P. Ewart • Richard C. Valentine • Richard H. Hoffman • Ellis E. Fuqua • John E. Guy • Leo M. Tarpey • Willis R. Tribler • Alfred B. LaBarre • Patrick E. Maloney • Robert V. Dewey, Jr. • Lawrence R. Smith • R. Michael Henderson • Paul L. Price • Stephen L. Corn • Rudolf G. Schade, Jr. • Lyndon C. Molzahn • Daniel R. Formeller • Gordon R. Broom • Clifford P. Mallon • Anthony J. Tunney • Douglas J. Pomatto • Jack T. Riley, Jr. • Peter W. Brandt • Charles H. Cole • Gregory C. Ray • Jennifer Jerit Johnson • Stephen J. Heine • Glen E. Amundsen • Steven M. Puiszis • Jeffrey S. Hebrank • Gregory L. Cochran • Rick Hammond • Kenneth F. Werts • Anne M. Oldenburg • R. Howard Jump • Aleen R. Tiffany • David H. Levitt

Charles P. Rantis — Johnson & Bell, Ltd., Chicago Michael A. Scodro — Jenner & Block LLP, Chicago John J. Vitanovec — Cassiday Schade LLP, Chicago

IDC Quarterly

Editorial Board

IN THIS ISSUE

Brad A. Elward, Editor-in-Chief Heyl, Royster, Voelker & Allen, P.C., Peoria [email protected] Edward J. Aucoin, Jr., Executive Editor Pretzel & Stouffer, Chartered, Chicago [email protected] John F. Watson, Associate Editor Craig & Craig, LLC, Mattoon [email protected] Tara Wiebusch Kuchar, Assistant Editor HeplerBroom LLC, Edwardsville [email protected] J. Matthew Thompson, Assistant Editor Heyl, Royster, Voelker & Allen, P.C., Peoria [email protected] Catherine A. Cooke, Assistant Editor Robbins, Salomon & Patt, 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. Subscriptions 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 Policy

Members and other readers are encouraged to submit manuscripts for possible publication in the IDC Quarterly, 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 publication 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, First Quarter 2016, Volume 26, No. 1., 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 62563-0588 800-232-0169 • 217-498-2649 • FAX 866-230-4415 [email protected] • www.iadtc.org

Monograph M-I

Beyond HIPAA: Solving the Puzzle of Properly Acquiring Mental Health Records in Litigation, by N. Drew Kemp and Howard L. Huntington

Feature Articles 5 Amicus Briefs from Unlikely Sources: Recent Examples, by Michael A. Scodro 21

Are the IPI Instructions on Construction Negligence an Accurate Statement of Illinois Law?, by Judge Donald J. O’Brien, Jr. (ret.)

42

Practice Guideline—Expert Discovery: A Primer on Depositions of Liability Experts in Non-Medical Cases, by Charles P. Rantis

Columns 17

Amicus Committee Report, by Craig L. Unrath



27

Appellate Practice Corner, by Scott L. Howie



61

Association News



31

Civil Practice and Procedure, by Donald Patrick Eckler and Quinn P. Donnelly



8



30

Commercial Law, by James K. Borcia



58

Construction Law, by Lindsay Drecoll Brown and John J. Vitanovec



4



11

Employment Law, by Julie A. Bruch



73

IDC Membership and Committee Applications



65

IDC New Members



67

IDC Notice of Election



68

IDC 2016 Spring Symposium



35

Insurance Law Update, by Timothy R. Lessman



39

Medical Malpractice Update, by Dede K. Zupanci and Zeke N. Katz



2



50

Product Liability, by Ryan M. Frierott, Kevin P. Lolli and Mallory Morgan



37

Property Insurance Law, by Catherine A. Cooke



19

Recent Decisions, by Stacy E. Crabtree



54

Supreme Court Watch, by M. Elizabeth D. Kellett



52

Workers’ Compensation Report, by Bradford J. Peterson

Civil Rights Update, by David A. Perkins and Emily J. Perkins

Editor’s Note, by Brad A. Elward

President’s Message, by Troy A. Bozarth

SANDRA J. WULF, CAE, IOM, Executive Director

First Quarter 2016 | IDC QUARTERLY | 1

President’s Message Troy A. Bozarth HeplerBroom LLC, Edwardsville

“The right to trial by jury heretofore enjoyed shall remain inviolate.” – Illinois Constitution 1970 Art. I § 13. A battle rages in Illinois over the jury rights guaranteed in the Illinois Constitution. Despite clear statements of intent by the framers, pronouncements by the Illinois Supreme Court, and the language of the constitution itself, the Illinois General Assembly has attempted to do what it was clearly prohibited from doing. It has unconstitutionally abridged the right to a jury trial in Illinois and reduced the number of jurors in civil cases from the constitutionally mandated 12 to 6. The right to a trial by a jury of one’s peers is key to our nation’s promise of justice for all. The tyranny of government spawned our nation. Foremost in our founding fathers’ minds was protecting the individual from the power of the state. A key part of these protections is the individual right to a trial by jury Seven months after the Boston Massacre, John Adams led the defense of Captain Thomas Preston, the officer leading the British soldiers on the day of the massacre. During this period of unrest and upheaval, John Adams and his trial team were subject to profound personal and professional danger. Moreover, their families must have also been subject to the vitriol of the revolutionary colonists. After all, John Adams and his team were defending British soldiers accused of opening fire and killing five colonists in the midst of Boston. Why would a popular 35 year old lawyer with a young family take on 2 | IDC QUARTERLY | First Quarter 2016

such an untenable assignment just as his career was taking off? Because John Adams felt the danger that mob rule and corrupt government power posed to the rule of law was greater than the danger he faced. The lives of Captain Preston and the other British soldiers were on the line. If convicted they faced the death penalty. Interestingly, John Adams was not the British soldiers’ first choice, but he was the only lawyer willing to represent them. Adams, a founding father and patriot, detested British rule and what the soldiers had done as much as any other colonist. Yet, he put his belief in the rule of law before all else, including his personal feelings, prejudices, and safety. Paramount to the rule of law is the belief that all men are entitled to equal justice, which is accomplished by a fair and impartial trial by jury. In separate trials, John Adams led the defense of these soldiers before juries made up of colonists. At each trial, the British soldiers were acquitted of murder, and their lives preserved. Jurors made up of the colonists that the British soldiers had been sent to brutalize and subjugate, applied the rule of law, and set them free. These jurors gave the soldiers the individual protections that the soldiers had been sent to take away. This prophetic episode from our nation’s history exemplifies how the power of a fair and impartial trial by jury secured the ideal of equal justice when all popular opinion

and political power cried out for exactly the opposite. In Illinois, the right to trial by jury existed even before Illinois joined the United States and has been constitutionally guaranteed since the time we were merely a far-flung territory and not even a state. So sacred was the right to trial by jury, that when our founders drafted the first Constitution of the State of Illinois they created a right that some felt was stronger than that guaranteed by the Seventh Amendment of the Constitution of the Unites States of America. Indeed, our Supreme Court noted that the language differences between the Illinois Constitution and the Constitution of the United States is substantive and not just one of form. Daley v. Joyce, 126 Ill. 2d 209, 222 (1988). The Illinois Supreme Court noted that the right to a jury trial was one of the most “revered of all rights acquired by a people to protect themselves from the arbitrary use of power by the State.” Daley, 126 Ill. 2d at 212. The Illinois Constitution makes clear that this right is not to be diminished or abridged by the legislature precisely because of its importance to our society. The text of the Illinois constitutions, commentary from its framers, and supreme court jurisprudence, confirm the unbending nature of our state’s view of the right to a 12-person jury. Illinois has made clear that “the right of the trial by jury shall remain inviolate.” Ill. Const. 1818, Art. 8, §6. & Ill. Const. 1848, Art. 13, §6. This identical language was included in Illinois’ first two Constitutions and has remained virtually unchanged for nearly 200 years. In 1870, the Illinois Constitution provided that “the right to trial by jury as heretofore enjoyed, shall remain inviolate; ...” Ill. Const. 1870, Art. II, §5. This language continued through our last constitutional

convention. The wording of the 1970 Constitution similarly, provides that “[t] he right to trial by jury heretofore enjoyed shall remain inviolate.” Ill. Const. 1970, Art. I §13.1 The language and the importance placed on the individual’s protection provided in the jury trial have remained consistent throughout our state’s history and so has its meaning and interpretation. This quoted language clearly provides for a jury of twelve persons in civil trials and the legislature’s recent reduction to a jury of six is unconstitutional. In fact, the very question of whether a legislature should be allowed to reduce the number of jurors from twelve was debated and rejected during the 1970 constitutional convention. Put as directly and clearly as one could possibly hope when seeking to discern the intent of the drafters of the Illinois Constitution, delegate Elmer Gertz noted in the debate just prior to the vote rejecting the change which would allow the legislature to reduce the number of jurors from twelve, “[J]uries of less than 12 are by consent of the parties. They are not constitutional or even statutory.… So far as the constitution is concerned, the jury must be one of 12 members in … civil cases unless the parties otherwise agree.” V Record 4241. Shortly thereafter, the new Constitution was ratified without the proposed amended language allowing the

legislature to reduce the number of jurors if they saw fit.2 The framers of the 1970 Constitution specifically considered and rejected civil juries of less than 12 persons. As if there were any doubt, the question of what jury rights are afforded by Illinois’ Constitution has been answered consistently by the Illinois Supreme Court. What right was heretofore enjoyed and will be held inviolate? The right to a jury heretofore enjoyed is that jury right provided by common law. George v. People, 167 Ill. 447, 456-57 (1897). “A jury of twelve men must be empaneled and any less number would not be a common-law jury.” George, 167 Ill. at 457. In Povlich v. Glodich, 311 Ill. 149 (1924), the court noted when discussing juries of 12 that, “[i]n all actions governed by common law a less or greater number is not a jury unless by the consent of the parties.” Povlich, 311 Ill. at 152. The right to trial by jury afforded by the various Illinois constitutions is understood to be that allowed at common law, which is a jury of twelve. A jury consisting of 12 persons is the jury right protected by our state’s constitution. This right has been jealously guarded and affirmed time and time again by the Illinois Supreme Court. The Illinois Supreme Court looked at the above quoted constitutional provision protecting the right to a jury trial in

The 1970 Constitution deleted language which allowed juries of less than 12 before justices of the peace after justices of the peace were abolished by the Illinois legislature. 1

On Aug. 30, 1970, the convention delegates agreed that the explanatory text of the proposed constitution, specifically Article I’s Section 13, trial by jury, would be, “The right of trial by jury as heretofore enjoyed shall remain inviolate” and the italicized explanation would be, “This section is the same as Article II, [S]ection 5 of the 1870 [c]onstitution, except that it deletes an outdated reference to justices of the peace, which have been abolished in Illinois.” I Record 699 2

Sinopoli v. Chicago Railways Co., 316 Ill. 609, 619-20 (1925), where the court held: “The essential thing in the right of trial by jury is the right to have the facts in controversy determined under the direction and superintendence of a judge by twelve impartial jurors having the qualifications and selected in the manner required by law, whose verdict must be unanimous …” In Denny v. Traeger, 372 Ill. 11, 14 (1939) the Illinois Supreme Court, citing both Sinopoli and People v. Kelly, 347 Ill. 221 (1932), noted yet again that a constitutional jury in the state of Illinois consists of twelve impartial jurors. Under our most recent Constitution, the Illinois Supreme Court has definitively declared that the “right to trial by jury is guaranteed by the 1970 Illinois Constitution and this court has long determined that a jury is comprised of 12 members.” Hartgraves v. Don Cartage Co., 63 Ill. 2d 425, 427 (1976). The words of the framers, the opinions of the Illinois Supreme Court, and the language of the Constitution make clear that a jury of 12 persons is constitutionally guaranteed in the state of Illinois. While there does not seem to be much room for debate as to whether the legislature has the power to constitutionally abridge the right to a jury of twelve, this past year political power has sought to abridge constitutional rights in Illinois. Through sheer political force the General Assembly diminished the constitutional protection afforded all litigants in Illinois. The constitutional right to a jury trial is eroding before our eyes. During an eleventh hour veto session in the lame duck days of Governor Patrick Quinn’s administration, factions aligned themselves against the long held right to a trial by jury. Public Act, 98-1132, a bill limiting a civil litigant’s right to — Continued on next page

First Quarter 2016 | IDC QUARTERLY | 3

President’s Message | continued

trial by jury was proposed and swept through both houses in a matter of days over the Thanksgiving Holiday weekend. The IDC and others opposed the bill and the manner of its passage. Nevertheless, the bill landed on Governor Quinn’s desk and he signed it. The bill became effective June 1, 2015. That is how fast Illinois litigants lost their constitutionally protected right. The pretext for the change to 735 ILCS 5/2-1105 was, of course, money. The reduction in the number of jurors from twelve to six was supposed to afford great costs savings to cash strapped counties. Yet, at the same time the number of jurors was reduced, juror pay was substantially increased. The juror fee increased from $4 per day plus mileage to a flat $25 for the first day’s service followed by $50 per day for each additional day’s service. That change significantly increased the overall cost of juries and left many counties scratching their heads on how to pay for the “cost saving” measure. From a policy standpoint, a jury of 12 is twice as representative of the community and likely twice as diverse as a six-person jury in terms of age, sex, race and other demographics. Further, as a matter of group dynamics, the larger the jury, the less likely one strong juror can control or dominate the deliberation process. In reality, it is clear that powerful plaintiff’s lawyers felt they were better off if they only had to convince six people to award the verdicts they seek. That is exactly why juries of no less than 12 are constitutionally mandated, they are less pliable and provide what our system needs, more well-reasoned verdicts. Clearly, that was not what the proponents of Public Act 98-1132 desire. The fight to reinstate the protection afforded by the Illinois Constitution and 4 | IDC QUARTERLY | First Quarter 2016

in favor of an uncompromised right to trial by jury in civil actions has begun. The IDC is leading this fight and will continue to insist on the fair and impartial civil justice system our states’ founders contemplated. Right now, our courts have been asked to decide if the legislative actions specifically contemplated and rejected by the delegates drafting the 1970

Constitution will be allowed to stand. How would patriots, like John Adams, view our fight for an uncompromised right to a jury trial that is promised to us all by the Illinois Constitution? He would be pleased and undoubtedly join the IDC as an outspoken proponent of an individual’s right to trial by jury and equal justice for all litigants.

Editor’s Note Brad A. Elward Heyl, Royster, Voelker & Allen, P.C., Peoria

Our first issue of 2016 touches upon a variety of topics and features discussions of many recent appellate court and supreme court decisions. In addition to our regular Quarterly columns, this issue contains two feature articles and a special Practice Guideline on expert witness discovery. One feature article, written by former Illinois Solicitor General Michael Scodro of Jenner & Block, focuses on amicus curia briefs, while the second feature article, authored by retired Judge Donald J. O’Brien, Jr. of Johnson & Bell, Ltd., focuses on IPI instructions in construction negligence litigation. The Practice Guideline, authored by Charles Rantis of Johnson & Bell, Ltd., provides an excellent primer for handling expert witnesses in non-medical cases, and offers a step-by-step framework for

deposing a liability expert. For the Monograph, contributors Drew Kemp of Thompson Coburn LLP, and Howard Huntington of Bullaro & Carton, P.C., discuss discovery of mental health records in Beyond HIPAA: Solving the Puzzle of Properly Acquiring Mental Health Records In Litigation. As IDC Quarterly Editor-in-Chief, I encourage IDC members across the state to contact myself or members of the editorial board concerning articles you may wish to contribute or topics that you would like to see covered by our columnists or in our Monographs. The Quarterly serves its members as a resource, and well-researched and well-reasoned articles and columns are crucial to that effort.

Feature Article Michael A. Scodro Jenner & Block LLP, Chicago

Amicus Briefs from Unlikely Sources: Recent Examples Lately, more and more attention has focused on participation as an amicus curiae, not only in the United States Supreme Court, but in other federal and state courts as well. In the Illinois Supreme Court, for example, it is now common to see amicus briefs on one or both sides of an appeal. But for all of this increase in popularity, crafting a persuasive amicus brief—one that adds meaningfully to the mix of information before the court—can pose extraordinary challenges. It is helpful to know, therefore, that many of the more effective amicus briefs fall into one or more of several recognized categories. In a 2003 article, Dan Schweitzer, Director and Chief Counsel of the Center for Supreme Court Advocacy at the National Association of Attorneys General, catalogues many of these categories. See “Development and Practice Note: Fundamentals of Preparing a United States Supreme Court Amicus Brief,” 5 J. of Appellate Practice & Process 523, 531-37 (2003). Among these are the “Practical Implications” brief (perhaps the most recognized form of amicus filing), the “Go Further Than the Party” brief, the “Different Legal Argument” brief, and the “Damage Control” brief. Id. at 531-35. This article focuses on another, relatively rare but often influential class of amicus briefs—the so-called “Surprising Source” amicus. As Mr. Schweitzer aptly describes them, these “briefs are powerful because they are written by entities

that one would expect to be supporting the other side of the case.” Id. at 534. “A brief of this sort can be particularly effective in rebutting the other side’s considerations regarding the practical implications of the case.” Id. Often, the “surprise” lies in the fact that the amicus occupies (or formerly occupied) a position similar or identical to the position held by the party whom the brief opposes. There is an instant, attention-grabbing element to such a brief, filed by an individual, private entity, or government that seems indistinguishable from the party on the other side of the case. Two recent examples of this breed of surprising-source brief appeared in Holt v. Hobbs, 135 S. Ct. 853 (2015), which asked whether the Religious Land Use and Institutionalized Persons Act (RLUIPA) barred Arkansas from prohibiting the petitioner, a Muslim inmate, from wearing a half-inch beard as part of his religious observance. In one amicus brief supporting the petitioner’s position, four former prison wardens argued that, while “there are cases where the important religious rights of inmates must give way to the security concerns of the prison system,” “this is not such a case.” Br. of Former Prison Wardens Amici Curiae in Support of Petitioner at 1, Holt v. Hobbs, No. 13-6827, 2014 U.S. S. Ct. Briefs LEXIS 1968 (May 29, 2014). These amici stressed their correctional experience, explaining that they “worked on the front lines of prison administration” and

are therefore “sensitive to the pressing needs and distinct challenges of the penal setting.” Id. It was noteworthy, therefore, that from this vantage point amici argued that accommodating inmates’ religious practices yields “more effective security safeguards for prisons.” Id. Further, amici related that in their experience, “the last place an inmate would choose to hide contraband is in a half-inch beard.” Id. at 16. The former wardens also offered practical alternatives to Arkansas’ challenged policy: “If there is any doubt about whether items are stashed in an inmate’s beard of half-an-inch (or more), prison staff can—and in fact often do—require inmates to vigorously run their fingers through their beards.” Id. at 16-17. Likewise, while Arkansas argued that allowing even half-inch beards would permit escaped inmates to hinder recapture by shaving to change their appearance, amici argued that, in their experience, it was common for prisons to “maintain[] before-and-after pictures of an inmate who grows a beard, as well as one who changes hair style or — Continued on next page

About the Author Michael A. Scodro is a partner in the Appellate and Supreme Court Practice at Jenner & Block LLP in Chicago. Before joining Jenner, Mr. Scodro served for more than six years as the Illinois Solicitor General, in which capacity he oversaw the civil and criminal appeals divisions of the Attorney General’s Office and argued in the U.S. Supreme Court and other courts on behalf of the State. He serves as President of the Appellate Lawyers Association, was elected to membership in the American Law Institute and the American Academy of Appellate Lawyers, and is a member of the ABA’s Council of Appellate Lawyers and the Seventh Circuit Bar Association.

First Quarter 2016 | IDC QUARTERLY | 5

Feature Article | continued

as the inmate ages.” Id. at 19. “In the experience of amici,” the brief continued, “maintaining before and after pictures of inmates with facial hair is a simple step, and it certainly provides a much more effective security and identification measure than a blanket ban on facial hair.” Id. at 20. Another group of five former corrections officials filed a separate amicus brief supporting the petitioner. These officials also stressed their bona fides as prison administrators—“Amici collectively have over 169 years of experience as corrections professionals.” Br. for Former Corrections Officials John Clark, et al. as Amici Curiae in Support of Petitioner at 5, Holt v. Hobbs, No. 13-6827, 2014 U.S. S. Ct. Briefs LEXIS 1967 (May 29, 2014). And they explained that “[t]hat experience, and the experience of their colleagues across the country, has led to a broad consensus among federal and state correction officials that restrictive grooming policies that fail to permit religious accommodation are not required for reasons of prison security.” Id. at 5-6. Furthermore, like the former wardens, these officials concluded “that allowing the requested religious exemption from restrictive grooming policies would serve to enhance prison security, not to diminish it . . . . ” Id. at 3. In a case where respondents claimed that a series of adverse consequences would arise if inmates were permitted to grow half-inch beards, these amicus briefs were useful in “rebutting the other side’s contentions regarding the practical implications of the case.” Schweitzer, supra, at 534. In short, these amicus briefs served as a counterweight to the respondents’ claim to practical experience. (To the extent the United States government was speaking as administrator of the Federal Bureau of Prisons, its 6 | IDC QUARTERLY | First Quarter 2016

At issue before the Supreme Court was the Eleventh Circuit’s definition of “foreseeable.” Under that definition, “anticompetitive conduct is foreseeable if it could have been reasonably anticipated by the state legislature.” brief supporting petitioner also qualifies as a surprising-source amicus. See Br. for the United States as Amicus Curiae Supporting Petitioner, Holt v. Hobbs, No. 13-6827, 2014 U.S. S. Ct. Briefs LEXIS 2018 (May 29, 2014). But the federal government spoke from multiple perspectives, including as the source of RLUIPA and as a party that files claims under that Act.) To be “surprising,” however, an amicus need not hold (or have held) the same position as the party on the other side of the case. Another version of the surprising-source amicus comes, not from one similarly situated to the party on the other side, but from an amicus with an even stronger interest than the parties—or at least a more self-evident interest—in the legal rule the Court will announce. Some of the most obvious examples in this category involve governmental amici. Consider, for example, the effect of a brief from the federal government agreeing with a tort plaintiff that federal law does not preempt duties under state law. Federal law is the beneficiary of federal preemption, and it would therefore be especially meaningful for the United States to argue against preemption in a particular case. A fairly recent example of this brand of “surprising source” amicus, which drew attention from the Court at argument and even made its way into the Court’s opinion, appeared in FTC

v. Phoebe Putney Health System, Inc., 133 S. Ct. 1003 (2013), a case involving the scope of the so-called “state-action immunity” doctrine, which (broadly speaking) permits States to authorize anticompetitive conduct without being subject to federal antitrust prohibitions. The case originated in Georgia, where a statute allowed counties and municipalities to create “hospital authorities.” Phoebe Putney, 133 S. Ct. at 1007. Among other statutory powers, these local bodies were entitled to acquire and lease hospitals, and one such authority agreed to an acquisition-and-lease arrangement that would result in the merger of two hospitals in the same locality. Id. at 1007-08. The Federal Trade Commission (FTC) sought to stop the transaction under the Federal Trade Commission Act and the Clayton Act on the ground that combining the two hospitals would create a near monopoly on acute care in the area. Id. at 1008. The Eleventh Circuit affirmed the dismissal of the FTC’s complaint. The court did not dispute that the proposed transaction had anticompetitive effects but determined that the transaction was immune from federal antitrust liability under the state-action doctrine because “the challenged anticompetitive conduct was a ‘foreseeable result’ of Georgia’s” statute. Id. at 1009. At issue before the Supreme Court was the Eleventh Circuit’s definition

of “foreseeable.” Under that definition, “anticompetitive conduct is foreseeable if it could have been reasonably anticipated by the state legislature.” Id. (internal quotation marks omitted). “[I]t is not necessary, the [Eleventh Circuit] reasoned, for an anticompetitive effect to be one that ordinarily occurs, routinely occurs, or is inherently likely to occur as a result of the empowering legislation.” Id. (internal quotation marks omitted). “More specifically, the court [of appeals] reasoned that the [statutory] . . . grant of power to hospital authorities to acquire and lease projects would produce anticompetitive effects because [f]oreseeably, acquisitions could consolidate ownership of competing hospitals, eliminating competition between them.” Id. (internal quotation marks omitted). The question for the Court was whether such general authorization by the Georgia legislature to buy and lease hospitals made the anticompetitive effects sufficiently foreseeable to trigger antitrust immunity. At first blush, one might predict an amicus brief from the States supporting Phoebe Putney and seeking to maximize the scope of state immunity from federal antitrust law. States, one might assume, would prefer to enjoy the benefits of antitrust immunity in the broadest universe of cases, including where—as in Phoebe Putney—the state legislature merely conferred general powers on local entities, without authorizing conduct that is particularly likely to yield anticompetitive effects. Illinois, however, joined by 19 other States, filed in support of the FTC. (For purposes of disclosure, as the then-Illinois Solicitor General, I was counsel of record for Illinois on that amicus brief.) The States began their brief with a reminder that they were

uniquely poised to address the scope of the state-action doctrine because that doctrine arose to protect state interests: “The state-action doctrine exists solely to protect state regulatory prerogatives, and the States therefore have a powerful interest in correcting its misapplication.” Br. of Amici Curiae States of Illinois, et al. in Support of Petitioner at 1, FTC v. Phoebe Putney Health Sys., Inc., No. 11-1160, 2012 U.S. S. Ct. Briefs LEXIS 3499 (Aug. 27, 2012). From there, the States went on to explain the trade-off between the rights they enjoy under that doctrine and the countervailing need to protect their citizens from anticompetitive conduct. The Eleventh Circuit’s rule triggered antitrust immunity even when States may not have wanted it, the amici continued, threatening competitive markets in ways States would not have intended. “The doctrine only serves [its] purpose”—protecting state sovereignty—“as long as it excuses anticompetitive conduct that a State wishes to excuse,” Id. at 6, and the court of appeals’ presumption that state legislators seek to immunize such conduct whenever they grant general corporate powers to local bodies “assumes away any downside to the overbroad application of the state-action doctrine, as if state legislators wish to delegate authority to local bodies at any price.” Id. at 7. To strike the proper balance for the States, amici argued, the Court “should reserve antitrust immunity for cases in which the State either affirmatively expresses its intent to displace competition or in which, as a result of the empowering legislation, the anticompetitive effect ordinarily occurs, routinely occurs, or is inherently likely to occur.” Id. at 22. The States’ amicus brief appeared to have an impact. Phoebe Putney addressed the States’ arguments in its brief.

See Br. for Respondents at 42-43, FTC v. Phoebe Putney Health Sys., Inc., No. 11-1160, 2012 U.S. S. Ct. Briefs LEXIS 4092 (Oct. 1, 2012). And Justice Kagan referenced the States’ position at oral argument: “[W]e do have a brief from quite a number of states, and the brief basically says, We do this all the time; we set up these local authorities, and then we give them powers because they have to act in the world, and we give them normal powers, like the ability to make contracts and the ability to buy property.” Tr. of Oral Argument at 31, FTC v. Phoebe Putney Health Sys., Inc., No. 11-1160, 2012 U.S. Trans. LEXIS 60 (Nov. 26, 2012). “And when we do that,” the Justice continued, still summarizing the States’ position, “we don’t mean that they can do anything they want notwithstanding the antitrust laws. And to construe these very normal powers that we would give to a state entity in order to allow it to operate as a permission to violate the antitrust laws is not at all consistent with our own intentions.” Id. Most importantly, the Court cited the States’ brief in its opinion ruling for the FTC. In the course of rejecting respondents’ argument that “federal courts should err on the side of recognizing immunity to avoid improper interference with state policy choices,” the Court observed that, “[a]s an amici brief filed by 20 States in support of the FTC contends, loose application of the . . . test [for antitrust immunity] would attach significant unintended consequences to States’ frequent delegations of corporate authority to local bodies, effectively requiring States to disclaim any intent to displace competition to avoid inadvertently authorizing anticompetitive conduct.” Phoebe Putney, 133 S. Ct. at 1016. “We decline,” the Court continued, — Continued on next page

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“to set such a trap for unwary state legislatures.” Id. at 1017. The Court thus countered respondents’ argument—one that purportedly advanced the States’ interest—with a contrary argument from the States themselves. These recent examples illustrate the potential value of amici taking positions that seem—at least at first blush—at odds with the amici’s perceived interest. While somewhat rare on the whole, when such briefs are filed, they often come from individuals or entities that resemble the party on the opposite side of the case. As the filings in Holt show, these amici have the potential to counterbalance the other side’s position by arguing that, although the amici are similarly situated to the party on the other side, they believe the rule that side espouses would be harmful to amici’s interests. The States’ brief in Phoebe Putney is an example of that perhaps rarer breed of surprising-source amicus, filed by one who, rather than resembling the party on the other side of the case, appears to have an even greater, systemic interest in the case than the parties do. When such an amicus takes a position seemingly at odds with its interest as the intended beneficiary of the legal rule at issue—the federal government arguing against federal preemption, for example, or States arguing for stricter application of stateaction immunity from federal antitrust law—such a brief has the potential to carry significant weight.

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Civil Rights Update David A. Perkins and Emily J. Perkins Heyl, Royster, Voelker & Allen, P.C., Peoria

Seventh Circuit Addresses Public Employee Speech In Lalowski v. City of Des Plaines, 789 F.3d 784 (7th Cir. 2015), the Court of Appeals for the Seventh Circuit held that a police officer who verbally harassed and insulted an abortion protester did not speak on a matter of public concern despite the fact that the comments were made at a public demonstration. While unpublished, this decision has many important implications for civil rights attorneys who defend governmental entities in free speech claims. Factual Background Dick Lalowski was a police officer for the City of Des Plaines, Illinois. Lalowski, 789 F.3d at 787. On the morning of May 20, 2006, he had two verbal disputes with a group of demonstrators at an abortion clinic. One of the disputes occurred while he was on duty, and the other dispute occurred shortly after his shift ended. Id. The demonstrators hoped to dissuade women from entering the clinic and displayed large signs containing images of aborted fetuses. Id. Officer Lalowski warned the demonstrators not to obstruct traffic or stop anyone from entering the clinic. Id. He also threatened to arrest anyone who did not comply. Id. At that point, the lead demonstrator, Paula Emmerth, claimed that Lalowski called her a “fat…cow,” along with other profanities and threats, and accused the group of acting like the Taliban. Id. Emmerth also claimed that Lalowski generally behaved in a way that was intimidating and “out of control.” Of-

ficer Lalowski conceded that this initial confrontation with the demonstrators was adversarial but denied using any profanity or comparing the demonstrators to the Taliban. Id. at 787-88. After his shift, Lalowski changed into plain clothes and decided to go back to the clinic to confront the demonstrators about the signs. Id. at 788. Lalowski approached Emmerth, asked her if she remembered him, and told her that he was now off duty. Id. Lalowski asked

About the Authors 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 liability, first party property claims, and general tort litigation. He has spoken on a wide variety of subjects, 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. Emily J. Perkins is an associate with Heyl, Royster, Voelker & Allen, P.C. in Peoria. She concentrates her practice in the area of employment/ labor law and tort litigation, including medical malpractice and professional liability. She received her J.D. from Northern Illinois University College of Law in 2014, M.B.A. from Bradley University in 2011, and B.S. from Illinois State University in 2008.

Emmerth why the demonstrators were displaying the aborted-fetus signs, and Emmerth responded that they were using the signs to expose the truth about abortion. Id. Lalowski told Emmerth and the other demonstrators that they should not show the fetus signs because a woman who had recently had a miscarriage might drive by and be upset with the signs. Id. Emmerth refused to take down the signs and Lalowski responded by calling her a “fat…cow” and a “sinner of gluttony.1” Id. He also lectured Emmerth on the importance of exercise and demonstrated aerobic exercises she could do to lose weight. Id. A factual dispute existed as to the extent of physical contact made by Lalowski with Emmerth. Lalowski claimed that he patted Emmerth on the shoulder, but Emmerth claimed that he poked and rubbed her arms in a sexual way. Id. Lalowski remained at the clinic for approximately an hour and twenty minutes and spoke with many demonstrators. Id. It was undisputed that Lalowski accused the demonstrators of using intimidation tactics like the Taliban, compared their use of the aborted-fetus signs to using an image of a priest bending over a small boy to protest sexual abuse within the Catholic Church, called demonstrator Wanda Glitz a “psycho” and a “man hater,” called Paula Emmerth a “fat cow” multiple times, and called Paula Emmerth’s sister, Teresa, “fatty.” Id. Lalowski was eventually informed by another officer that a demonstrator

had called the police department to request police assistance at the clinic. Id. at 789. Realizing his efforts to persuade the demonstrators were ineffective, Lalowski gave Emmerth a hug and told her that he loved her, and left the clinic. Id. When the police chief heard about the incident, he requested an investigation into Lalowski’s conduct. Id. The investigation report confirmed that Officer Lalowski’s conduct caused a disturbance among numerous citizens, which resulted in a hostile feeling towards the City of Des Plaines and the police department. Id. The police chief suspended Lalowski without pay and filed five charges with the Board of Commissioners (Board). Id. In reaching its decision to sustain all charges to terminate his employment, the Board relied upon Lalowski’s disciplinary history, which included five suspensions and two written reprimands. Id. One of the disciplinary actions involved a suspension which resulted from an argument he had with a woman where he called her a “slut” and a “whore” and pushed her to the ground. Id. Lalowski also previously received a written reprimand for using profane language toward a private citizen. Id. Lalowski filed claims against the police chief, the Board and the City of Des Plaines pursuant to 42 U.S.C. § 1983, alleging that they retaliated against him for his protected speech in violation of the First Amendment.2 Id. at 787. The parties filed cross-motions for summary judgment. The district court granted sum-

At trial, Lalowski claimed that he made these statements to provide Emmerth with a few stinging examples of “how the truth can hurt.” 1

Lalowski also filed a claim against the Board under the Illinois’s Administrative Review Law, 735 ILCS §§ 5/2-101 et seq., seeking review of the Board’s decision to terminate his employment.

2

mary judgment against Lalowski, and Lalowski appealed. Id. Seventh Circuit’s Ruling When a plaintiff brings a Section 1983 claim for retaliation in violation of First Amendment rights in an employment context, the court’s analysis involves three steps: (1) determine whether the employee’s speech was constitutionally protected under the Connick-Pickering test; (2) determine whether the plaintiff established that the speech was a substantial or motivating factor in the alleged retaliatory action; and (3) if the plaintiff satisfies the first two steps, then the defendant has an opportunity to establish that the same action would have been taken in the absence of the employee’s protected speech. Lalowski, 789 F.3d at 790, citing Hutchins v. Clarke, 661 F.3d 947, 955 (7th Cir. 2011). The district court found that some of Lalowski’s statements did not address a matter of public concern and were therefore unprotected. Lalowski, 789 F.3d at 790. The court also determined that some of Lalowski’s statements  touched only loosely upon matters of public concern, and because the state had a “strong overriding interest” in proscribing them, those statements were also unprotected. Id. at 791. Finally, the district court found that some of Lalowski’s statements that had touched more directly upon matters of public concern were protected because the state lacked a “legitimate overriding interest” in proscribing them. Id. The Seventh Circuit agreed with the district court that some of Lalowski’s speech addressed matters of public concern because he expressed disapproval of the protester’s aborted-fetus signs. Id. — Continued on next page

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However, the Seventh Circuit disagreed with the district court’s conclusion that the state had no “legitimate overriding interest” to exclude them. Id. The Seventh Circuit first analyzed Lalowski’s statements utilizing the Connick-Pickering test to determine whether Lalowski’s speech was constitutionally protected. Lalowski, 789 F.3d at 790; see Connick v. Myers, 461 U.S. 138 (1983); see also Pickering v. Bd. of Educ., 391 U.S. 563 (1968). The Connick-Pickering balancing test is applied to determine whether “the interest of the [plaintiff] as a citizen in commenting upon the matters of public concern” are outweighed by ”the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.” Lalowski, 789 F.3d at 791, citing Coady v. Steil, 187 F.3d 727, 731 (7th Cir. 1999). The court applied the ConnickPickering balancing test using several interrelated factors including: “(1) whether the speech would create problems in maintaining discipline or harmony among co-workers; (2) whether the employment relationship is one in which personal loyalty and confidence are necessary; (3) whether the speech impeded the employee’s ability to perform her responsibilities; (4) the time, place and manner of the speech; (5) the context within which the underlying dispute arose; (6) whether the matter was one on which debate was vital to informed decision-making; and (7) whether the speaker should be regarded as a member of the general public.” Lalowski, 789 F.3d at 791 (citing Gustassfon v. Jones, 290 F.3d 895, 909 (7th Cir. 2002)). In applying each of the factors to Lalowski’s case, the court agreed that the majority of the factors weighed heavily against Lalowski. Lalowski, 789 F.3d at 10 | IDC QUARTERLY | First Quarter 2016

791. His speech had the potential to create problems in maintaining discipline and harmony within the police department. Id. In fact, police officers were stationed at the clinic to keep the peace during the protests and Lalowski positioned himself in opposition to the goals of his employer. Id. The potential for disruption was exacerbated by the second factor, the importance of personal loyalty and confidence in the employment relationship, which the court noted is especially important in law enforcement. Id. at 792. Lalowski’s speech also directly conflicted with the third factor because he had a duty as a police officer to foster a relationship of trust and respect with the public. Id. Lalowski’s conduct was below the standard of conduct that the public expects from police officer, as outlined in the fourth factor. Id. The fifth factor was supported by Lalowski’s disciplinary history, and the court determined that the police chief and Board had a substantial interest in preventing further hostile interactions with the public. Id. The court determined that the sixth factor, which required an analysis as to whether the matter was one on which the debate was essential to informed decision-making, was the only factor that weighed in favor of Lalowski’s speech interest because the organized protest could benefit from informed debate regarding its methods. Id. In analyzing the final factor, the court concluded that Lalowski was not off duty when he engaged in the speech, so he cannot be regarded as a member of the general public. Id. The court reasoned that he first confronted the demonstrators while on duty and then left the clinic only to return off duty. Id. at 792-93. Although his shift ended, the court concluded that his second encounter was a mere continuation and escalation of the earlier

confrontation. Id. Lalowski even made sure the demonstrators remembered him as a police officer. Id. Because Lalowski represented himself as an off-duty police officer rather than a mere private citizen, the court held that that Lalowski was not speaking as a member of the general public. Id. The court noted that six of the seven Pickering factors favored the state’s interests and held that the state’s interests in operating an efficient and effective police department outweighed Lalowski’s speech interests. Id. at 793. Thus, the court ultimately concluded that none of Lalowski’s statements to the demonstrators were constitutionally protected and affirmed the district court’s entry of summary judgment in favor of the City of Des Plaines. Id. Conclusion Governmental entities should proceed with extreme caution when attempting to limit a public employee’s speech. Reasonable minds can differ as to whether the speech addresses a matter of public concern. Lawyers practicing in the Seventh Circuit should be mindful that the court will use seven interrelated factors which were outlined in the Lalowski opinion to determine whether the interests of the public employee are outweighed by the employer’s interest in promoting the efficiency of public services. The Seventh Circuit’s opinion demonstrates that the court will limit a public employee’s speech, particularly if it interferes with the state’s interest in operating an efficient and effective police department.

Employment Law Julie A. Bruch O’Halloran Kosoff Geitner & Cook, LLC, Northbrook

Successfully Navigating the ADA Interactive Process The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) changed the focus of employment law cases alleging a failure to accommodate under the ADA. Originally, most defense attorneys successfully defended ADA claims by arguing that the employee or applicant was not disabled. After the ADAAA, courts have placed a greater emphasis on an employer’s response to a request for accommodation and whether the parties satisfied their obligation to act in good faith during the interactive process. Under the ADA, it is illegal for an employer to discriminate against a person with a disability if (1) that person is qualified to perform the essential functions of his job, and (2) the employer is aware of his limitations. 42 U.S.C. § 12112. While the ADA applies to both employees and job applicants, this article focuses on an employer’s obligations to existing employees. What Triggers the Right to an Accommodation? In the overwhelming majority of cases, courts find that an employee must first make a request for accommodation. The request can be oral or in writing and can be made at any time. Even though the employer’s policy may designate a specific individual to accept such requests, an employee can notify human resources, the employee’s supervisor, or anyone in the chain of command. Wallace v. Heartland Community College, 48 F. Supp. 3d 1151, 1161 (C.D. Ill. 2014) (finding that

that requests for accommodations need not be communicated through formal channels). If the person who receives the request is not authorized to respond on behalf of the employer, that person should promptly forward the request to the appropriate decision-maker. While most requests come directly from the employee, employers should be alert for requests that come from other sources. A family member, health professional, or other representative may request an accommodation on behalf of an employee. For example, a doctor’s note outlining medical restrictions for an employee constitutes a request for reasonable accommodation. Normally, an employer does not have to provide an accommodation unless it knows of the employee’s disability, but where the disability and need for accommodation are obvious, the employee does not need to expressly ask for a reasonable accommodation. Hedberg v. Indiana Bell Tel. Co., Inc., 47 F.3d 928, 934 (7th Cir. 1995). Thus, employees with a severe cognitive disability or obvious mental illness may be excused by courts for not making a formal request for accommodation. Cloe v. City of Indianapolis, 712 F.3d 1171, 1178 (7th Cir. 2013). Other possible triggers of the employer’s knowledge of a disability are prolonged or frequent absences, workers’ compensation injuries, knowledge of the employee receiving disability benefits, or an employee already using mitigating measures. See U.S. Equal Employment Opportunity Commission, Enforcement

Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, at Question 40 (Oct. 17, 2002), available at http://www.eeoc.gov/policy/docs/ accommodation.html (last visited Dec. 1, 2015). The request does not have to include any special words, such as “reasonable accommodation,” “disability,” or “Americans with Disabilities Act.” What triggers an employer’s obligation to respond is any communication indicating the employee’s need for some change due to a medical condition. If the nature of the communication is unclear or vague, an employer should clarify with the employee if there is a need for accommodation. The Employer’s Initial Response to the Request Once an employer has knowledge of the employee’s need for an accommodation, ideally, the employer should have the employee complete a form identifying the employee’s medical condition, the job duties that the employee is having difficulty performing due to the disability, whether the job duties are essential or marginal, and the type of accommodation that the employee needs. An employer cannot make the completion of such a form mandatory and an employee will — Continued on next page

About the Author Julie A. Bruch is a partner with  O’Halloran Kosoff Geitner & Cook, LLC. Her practice concentrates on the defense of governmental entities in civil rights and employment discrimination claims.

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be “not necessarily bound to what she wrote on the [employer’s] official form, but rather could also encompass other requests as long as they were clearly communicated to the [employer].” Wallace, 48 F. Supp. 3d at 1161.

make an individualized assessment of the employee’s condition and his ability to do the job). However, keep in mind that the EEOC’s position is that where the employee provides sufficient documentation from his or her own doctor, requiring

If the employee’s disability or need for accommodation is not obvious, an employer can mandate that the employee have a health care provider complete a medical inquiry form. This form should be limited to identifying the employee’s disability for which he or she needs a reasonable accommodation and the functional limitations due to the disability.

If the employee’s disability or need for accommodation is not obvious, an employer can mandate that the employee have a health care provider complete a medical inquiry form. This form should be limited to identifying the employee’s disability for which he or she needs a reasonable accommodation and the functional limitations due to the disability. Employers cannot ask for the employee’s complete medical records or for information related to other medical conditions. See EEOC: Enforcement Guidance, at Question 6. The ADA permits an employer to send an employee for an independent medical examination if “such examination or inquiry is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A); Pamon v. Board of Trustees of the University of Illinois, 483 Fed. Appx. 296, 298 (7th Cir. 2012) (functional capacity evaluation requirement was reasonable because the exam would help the employer to 12 | IDC QUARTERLY | First Quarter 2016

an independent medical exam could be evidence of retaliation. See EEOC: Enforcement Guidance, at Question 30; 8 FEP Manual (BNA) 405:7609 (1999). The Interactive Process Once the employer receives the employee’s completed forms or has enough information to be on notice of the employee’s need for accommodation, the employer has the burden to make a reasonable effort to determine the appropriate accommodation. At this point, the employee and employee go through a flexible, interactive process identifying the precise limitations imposed by the disability and exploring potential accommodations that would overcome those limitations. Both parties are responsible for determining what accommodations are needed. Reeves v. Jewel Food Stores, Inc., 759 F.3d 698, 702 (7th Cir. 2014). Employers must make an individualized determination in each case.

Attorneys guiding their clients through the interactive process should keep in mind Seventh Circuit Pattern Jury Instruction 4.08 which provides as follows: Once an employer is aware of an [employee’s/applicant’s] disability and an accommodation has been requested, the employer must discuss with the [employee/applicant] [or, if necessary, with his doctor] whether there is a reasonable accommodation that will permit him to [perform/apply for] the job. Both the employer and the [employee/applicant] must cooperate in this interactive process in good faith. Neither party can win this case simply because the other did not cooperate in this process, but you may consider whether a party cooperated in this process when deciding whether [a reasonable accommodation existed] [to award punitive damages].” Seventh Circuit Pattern Jury Instructions, 4.08. When an employer claims that it was not aware of a disability and the employee alleges that the employer knew or should have known, the jury may also receive this instruction: If the employer has reason to know that the [employee/applicant] has a disability and the [employee/applicant] is having problems [at work/applying for the job] because of the disability, it must engage in discussions with him and, if necessary,

with his doctor, to decide if he is actually disabled.” Id. at Committee Comment (b). Ideally, the interactive process should involve a face-to-face meeting with the employee, his or her supervisor, and anyone else empowered to make decisions on types of accommodations that would be reasonable. During that meeting, the employer should do the following: 1. Identify the employee’s disability. 2. What is the employee asking for? The employee must request something concrete, not a “second chance” or “to be accommodated” without an explanation of what is needed. 3. Identify what job duties the employee cannot perform. 4. Determine with the employee’s input whether those job duties are essential functions of the job or marginal functions. How much time per week does the employee spend performing those functions? 5. Identify potential accommodations. 6. Assess the effectiveness each proposed accommodation would have in enabling the employee to perform the essential functions of the position. 7. Consider the employee’s preference and select and implement the accommodation that is most appropriate for both the employee and the employer. While these steps will almost always be the same for each interactive process meeting, the ADA requires that employers conduct an individualized assessment in each case of both the particular job at issue and the specific physical or mental limitations of the employee.

Oftentimes an employer cannot complete all of these steps during the initial meeting because further information is needed or the supervisor needs to consult with others (including a doctor or legal counsel) before responding to the employee’s request. Many employers are reluctant to communicate with an employee’s doctor given HIPAA laws and concerns related to worker’s compensation claims. Despite those reservations, given the language of Pattern Instruction 4.08, employers should ask the employee for permission to speak with his doctor when there is confusion over the employee’s disability or type of accommodation that would help the employee. This request should be documented. What are the Essential Functions of the Position? During this process, the parties will ideally agree as to which job duties are essential. If the parties cannot agree, courts will look to the following factors to make the determination: (1) employer’s judgment; (2) written job descriptions prepared prior to advertising or conducting interviews; (3) amount of time spent performing that function; (4) consequences of this employee not performing that function; (5) the terms of a collective bargaining agreement; and (6) work experience of prior employees or incumbents in similar jobs. 29 C.F.R. § 1630.2(n)(3); Shell v. Smith, 789 F.3d 715, 718 (7th Cir. 2015). For this reason, employers must ensure that their job descriptions are current, accurate, and include the physical requirements of the position. When an employer does not discipline or correct an employee for failure to perform an essential function,

it suggests that the job duty is not essential. See Wallace, 48 F. Supp. 3d at 1158. Employees who work in teams and normally allocate job duties among themselves by substituting and reassigning tasks among themselves can also demonstrate to courts that certain job duties are not essential. See Miller v. Illinois Dept. of Transp., 643 F.3d 190, 200 (7th Cir. 2011). For this reason, employers must be vigilant to determine that each employee is performing all essential functions of a position or risk a court finding that certain duties are not essential. Is the Accommodation Requested Reasonable? Employers are required to accommodate reasonable requests when the accommodation would be effective and its costs are not clearly disproportionate to the benefits that it will produce. An accommodation is reasonable where either the accommodation seems reasonable on its face or the accommodation is reasonable on the particular facts. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 402 (2002). In such a case, the employer then has the burden to accommodate the employee or show that the accommodation would be an undue hardship. Barnett, 535 U.S. at 402. Reasonable accommodation does not include elimination or change of essential job functions; assignment of essential job functions to other employees; providing employees with assistive devices that would also be needed off the job (eyeglasses, wheelchair, prosthetic limb); providing personal use amenities if not provided to employees without disabilities (e.g. refrigerator, hot pot); lowering productivity standards that — Continued on next page

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are uniformly applied to all employees; or allowing continued unpredictable or unreliable attendance. See, EEOC Enforcement Guidance. Having another employee perform an essential job function for an employee with a disability is not a reasonable accommodation and is not required under the ADA. Majors v. General Electric Co., 714 F.3d 527, 534 (7th Cir. 2013). An employer can make these types of accommodations for employees, but is not required by law to make such changes. As part of the interactive process, employers should consider the following types of reasonable accommodations: 1. Changing ordinary work rules such as modifying performance goals or no-fault leave policies to allow employees more time off – unless it can be shown that (i) there is another effective accommodation that would enable the employee to perform the essential functions, or (ii) granting additional leave would cause an undue hardship. 2. Changing or altering facilities to make them more accessible and usable. 3. Acquisition or modification of equipment or devices. 4. Appropriate adjustment or modifications of examinations, training materials, or policies. 5. Provision of qualified readers or interpreters. 6. Allowing employee to bring in his or her own aids or services. 7. Changes to workplace conditions such as allowing an employee to work at home for a time or changing the temperature or ventilation in an office space. 8. Altering an employee’s schedule such as changing an employee’s 14 | IDC QUARTERLY | First Quarter 2016

work hours, allowing an employee to leave early or arrive late, providing periodic breaks, allowing employee time off, or changing an employee from full-time to part-time. 9. Job restructuring by reallocating or redistributing nonessential, marginal job functions. 10. Reassignment to a vacant position. If no reasonable accommodation is available in an employee’s present job, the ADA requires an employer to try to assign the employee to a vacant position for which he or she is qualified. If the reassignment was practical and did not require the employer to turn away a more qualified applicant, the employer must make the reassignment. E.E.O.C. v. United Airlines, Inc., 693 F.3d 760, 761 (7th Cir. 2012), cert. denied, 133 S. Ct. 2734 (2013). Stumbling Blocks in the Reasonable Accommodation Process If consultation with the employee does not reveal potential appropriate accommodations, the employer should seek technical assistance from outside agencies such as the Job Accommodation Network, the EEOC, or state or local rehabilitation agencies. An employer cannot simply reject an employee’s request for an appropriate accommodation without offering suggestions or at least express a willingness to continue discussing possible accommodations. EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 806 (7th Cir. 2005). The employer must explain why it is rejecting the request or offer alternatives. An employee with a disability is not required to accept an accommodation, aid, service, opportunity or benefit offered by the employer. But, if the employee rejects

an offer of something that is necessary to enable the employee to perform the essential functions of the position and the employee cannot, as a result of that rejection, perform the essential functions of the position, the employee will not be considered qualified. 29 C.F.R. 1630.9(d). Some employers refuse to engage in the interactive process because the employer does not believe that the employee is disabled or because the employer finds that the request on its face is unreasonable or would pose an undue burden. Even where the employer questions whether the employee truly has a disability, the employer is best served by going through the process. A court may disagree with the employer and find that the employee is disabled. Under such circumstances, an employer can be liable for failure to accommodate. If the employee is not disabled, the fact that an employer did not accommodate the employee is of no consequence because the ADAAA provides that employers do not have to accommodate employees who are “regarded as” disabled. 42 U.S.C. § 12201(h); 29 C.F.R. §§ 1630.2(o)(4) and 1630.9(e). Since there is no downside to having the discussion with an employee, the conservative approach for employers is to engage in the interactive process even where it is unlikely that the employee has a disability. Failure to engage in the interactive process is not an independent basis for liability under the ADA, but can be considered to determine whether a reasonable accommodation existed or if the employer should be held liable for punitive damages. “[A]n employer who has failed to provide a reasonable accommodation will be liable only if it bears responsibility for the breakdown of the interactive process.” Wallace, 48 F. Supp.

Even where the employer questions whether the employee truly has a disability, the employer is best served by going through the process.

3d at 1161. A party does not act in good faith by failing to make reasonable efforts to help the other party determine what specific accommodations are necessary, obstructing, or delaying the interactive process, failing to communicate by way of initiation or response, or failing to provide missing information to the other party. Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1285 (7th Cir. 1996). Employers must respond as expeditiously as possible. If there is a long delay in completing the interactive process, courts will look at (1) the reason for the delay, (2) the length of the delay (3) how much each side contributed to the delay, (4) what the employer was doing during the delay, and (5) whether the required accommodation was simple or complex to provide. See EEOC: Enforcement Guidance, at Question No. 10, n. 38. If an employee does not give an employer enough information to determine the necessary accommodations, the employer cannot be liable for failing to accommodate the disabled employee. Reeves, 759 F.3d at 702. “An employer can take no solace in its failure to engage in this process in good faith if what results is an unreasonable or inappropriate accommodation offer.” Hoppe v. Lewis University, 692 F.3d 833, 840 (7th Cir. 2012).

Assessing the Effectiveness of a Potential Accommodation After identifying potential accommodations, the employer should assess the effectiveness of each potential accommodation. If more than one accommodation will enable the employee to perform the essential functions, or if the employee would prefer to provide his or her own accommodation, the preference of the employee with a disability should be given primary consideration. See U.S. Equal Employment Opportunity Commission, The ADA: Your Responsibilities as an Employer, at Additional Questions and Answers on the Americans with Disabilities Act, available at http:// www.eeoc.gov/facts/ada17.html (last visited Dec. 1, 2015). The employer has the ultimate discretion to choose between effective accommodations and may choose the less expensive accommodation or one that is easier for it to provide. See 29 C.F.R. § 1630, Appendix to Part 1630, at § 1630.9. Employers should note that an employee’s willingness to provide his or her own accommodation does not relieve the employer of the duty to provide the accommodation if the employee is unable or unwilling to continue to do so. Id. A trial period is a good option for employers who are unsure if the proposed accommodation would be effective, feasible, or practical. Since employers may choose among effective accommodations, if the trial period is

not successful, the employer can try something else if the first option does not work. Accommodations need not be the ones requested as long as they are effective in removing pertinent barriers. This means that the accommodation enables the employee to perform the essential functions of the position and gives the employee an equal opportunity to enjoy the benefits and privileges of employment that employees without disabilities enjoy. Id. Employer Defenses 1. Undue Hardship An employer is not required to provide an accommodation to an employee when it poses an undue hardship on the employer. The term “undue hardship” means an action requiring significant difficulty or expense, when considered in light of the following factors: (1) the nature and cost of the accommodation needed; (2) the overall financial resources of the employer in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (3) the overall financial resources of the employer; the overall size of the business of an employer with respect to the number of its employees; the number, type, and location of its facilities; and (4) the type of operation or operations of the employer, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the employer. 42 U.S.C. § 12111(10)(B). — Continued on next page

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When the cost poses an undue hardship the employer must show that the cost is undue as compared to the employer’s budget. 29 C.F.R. § 1630, Appendix to Part 1630, at § 1630.15(d). An employer cannot compare the cost of the accommodation to the salary of the employee with a disability in need of the accommodation. Even if the cost would be an undue burden, the employer cannot avoid making the accommodation if the employee with a disability can arrange to cover that portion of the cost that rises to the undue hardship level, or can otherwise arrange to provide the accommodation. Id. at § 1630.2(p). Employers must also determine whether funding is available from an outside source, such as a state rehab agency or if the employer would be eligible for certain tax credits or deductions to offset the cost. Id. at § 1630.2(p). If an employee requests a leave of absence but cannot give the employer a definitive return date, the employer is required to accommodate the leave, absent undue hardship. See EEOC: Enforcement, at Question 44. Most likely, an employer would be able to permit a certain amount of time off and should grant the request for that amount of time and require periodic updates. It is important that employers make these assessments on a case-by-case basis. Accommodations that would fundamentally alter the nature or operation of the business pose an undue hardship. However, an employer would not be able to show undue hardship if the disruption to its employees was the result of those employees’ fears or prejudices towards the employee’s disability and not the result of the provision of the accommodation. See 29 C.F.R. § 1630, Appendix to Part 1630, at § 1630.15(d). Similarly, an employer cannot show 16 | IDC QUARTERLY | First Quarter 2016

undue hardship by claiming that the accommodation requested would have a negative impact on the morale of other employees but not on the ability of these employees to perform their jobs. See EEOC: Enforcement Guidance, at n. 118. 2. Federal Law or Regulation Prohibits Accommodation Another defense to support an employer’s inability to provide an accommodation is that the challenged action is required or necessitated by another federal law or regulation, or that another federal law or regulation prohibits an action (including the provision of a particular reasonable accommodation) that would otherwise be required. 29 C.F.R. § 1630.15(e). For example, if an employee drives a truck and takes medication that makes him ineligible to drive based on federal regulations, an employer may lawfully refuse to permit the employee to operate the truck while on that medication. 3. Direct Threat An employer may require, as a qualification standard, that an employee not pose a direct threat to the health or safety of himself/herself or others. The standard must apply to all employees, not just to employees with disabilities. If an employee poses a direct threat as a result of a disability, the employer must determine whether a reasonable accommodation would either eliminate the risk or reduce it to an acceptable level. 29 C.F.R. § 1630.2(r). If no accommodation exists that would either eliminate or reduce the risk, the employer may discharge an employee who poses a direct threat.

The direct threat standard requires that the risk to the employee or others must be a significant risk, i.e., high probability, of substantial harm; a speculative, remote or slight risk is insufficient. See 29 C.F.R. § 1630, Appendix to Part 1630, at § 1630.2(r). After identifying the risk, an employer should consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. Id. Employers must rely on objective, factual evidence and not on subjective perceptions, irrational fears, patronizing attitudes, or stereotypes about the nature or effect of a particular disability, or of disability generally. Id. Relevant evidence may include input from the employee with a disability, the experience of the employee with a disability in previous similar positions, and opinions of medical doctors, rehabilitation counselors, or physical therapists who have expertise in the disability involved and/ or direct knowledge of the employee with the disability. Id. Thus, expert medical opinion will likely be necessary. Conclusion Lack of communication between an employee and management is frequently the cause of an alleged ADA violation. Management attorneys should encourage their clients to be proactive and not ignore situations where a disability affects an employee’s ability to do the job. Documentation and following the steps outlined in this article are key to an employer prevailing on a failure to accommodate claim.

Amicus Committee Report Craig L. Unrath Heyl, Royster, Voelker & Allen, P.C., Peoria

The IDC has been very active in filing amicus curiae briefs supporting defendants in cases pending before the Illinois Supreme Court. Many of these cases were decided in the Court’s September term. This update reviews both the IDC’s recent filings and those that have been decided. Recent Filings The IDC filed an amicus curiae brief in Bowman v. Ottney, 2015 IL App (5th) 140215, a case where the plaintiff voluntarily dismissed her action after the judge made substantive rulings in the case. As luck would have it, upon refiling her case a year later, it was assigned to the same judge. The plaintiff moved to substitute the judge, arguing that no substantive rulings had been made in the re-filed action. The trial court denied the motion for substitution and certified the case for interlocutory review. The appellate court affirmed, noting that it was clear that substantive rulings had been made in the previous action, affording the plaintiff an opportunity to “test the waters” with this particular judge. Accordingly, even though no substantive rulings were made in the second action, the plaintiff had an opportunity to form an opinion as to the trial judge’s reaction to her cause of action. Bowman, 2015 IL App (5th) 140215, ¶ 19. IDC member Brad Elward represented the defendant and argued the case before the Illinois Supreme Court on September 24, 2015. Beth Bauer and Brian Lee of HeplerBroom LLC prepared the amicus curiae brief on

Cases Decided Ballard RN Ctr., Inc. v. Kohll’s Pharmacy & Homecare, Inc. behalf of the IDC. The IDC gratefully acknowledges their hard work in this case. In addition, the IDC filed an amicus curiae brief in Carney v. Union Pacific Railroad Company, No. 118984, which focuses on whether landowners may be liable for injuries arising from an independent contractor ’s failure to safely perform their work at a construction site. In this case, Union Pacific contracted with an independent contractor to remove a railroad bridge. The contractor agreed to supervise the entire project and keep the job site free from safety and health hazards. Union Pacific did not supervise any part of the contractor’s work. The trial court granted summary judgment in favor of Union Pacific in a claim brought by a subcontractor’s employee. The appellate court reversed, explaining that the agreement gave Union Pacific the right to terminate the agreement if it deemed the work unsatisfactory. Union Pacific also retained the right to remove any employee deemed incompetent or any equipment deemed unsafe. The appellate court concluded that, under these circumstances, a genuine issue of material fact existed as to whether Union Pacific retained sufficient control over the contractors’ work so as to be vicariously or directly liable to plaintiff. Carney v. Union Pacific R.R. Co., 2014 IL App (1st) 130105-U, ¶ 32. Robert Elworth of HeplerBroom LLC filed the amicus curiae brief on behalf of the IDC on October 30, 2015. The IDC greatly appreciates his work on this case.

Last April, the IDC filed an amicus brief in Ballard RN Ctr., Inc. v. Kohll’s Pharmacy & Homecare, Inc., 2015 IL 118644, where the appellate court reversed a trial court’s order granting class certification. Under the Illinois Supreme Court’s decision in Barber v. American Airlines, Inc., 241 Ill. 2d 450 (2011), a named representative’s claim is moot when the defendant tenders the relief requested prior to the filing of a motion for class certification. In this case, Ballard filed his motion for class certification contemporaneously with the complaint, before any tender could be made. Kohll’s argued that this was nothing more than a “shell” motion that was insufficient to satisfy Barber. The — Continued on next page

About the Author Craig L. Unrath is partner at Heyl, Royster, Voelker & Allen, P.C., and Chair of the firm’s Appellate practice group. He is also Vice Chair of the Professional Regulation/Licensure practice group. He began his career with Heyl Royster in 1994 after serving for two years as law clerk to Justice Carl A. Lund of the Illinois Appellate 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 Committee for the Illinois Association of Defense Trial Counsel (IDC).

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appellate court agreed, holding, among other things, that merely filing a “contentless” motion for class certification does not satisfy Barber. On October 22, 2015, the Illinois Supreme Court reversed, explaining that the focus in Barber was on the timing of the motion for class certification, not the ultimate merits of that motion. Patrick D. Cloud of Heyl, Royster, Voelker & Allen, P.C. is commended for his hard work in drafting the amicus curiae brief on behalf of the IDC. Seymour v. Collins The IDC also filed an amicus curiae brief in Seymour v. Collins, 2015 IL 118432. In Seymour, the plaintiffs filed a personal injury action during the pendency of their bankruptcy case, but neglected to notify creditors. The defendants moved for summary judgment in the personal injury case contending that plaintiffs should be judicially estopped from proceeding with their claim. The appellate court affirmed the order granting summary judgment, explaining that debtors have a continuing duty to schedule newly acquired assets while the bankruptcy case remains open, including legal claims arising after confirmation of a plan in a chapter 13 proceeding. The Illinois Supreme Court reversed, explaining that: We are not so ready, as the federal courts appear to be, to penalize, via presumption, the truly inadvertent omissions of good-faith debtors in order to protect the dubious, practical interests of bankruptcy creditors. Seymour, 2015 IL 118432, ¶ 63. The court concluded that the fact that the 18 | IDC QUARTERLY | First Quarter 2016

The court concluded that the fact that the plaintiffs had a legal duty to disclose their personal injury claim, and failed to do so, did not, standing alone, establish an intent to deceive and/or manipulate the bankruptcy court.

plaintiffs had a legal duty to disclose their personal injury claim, and failed to do so, did not, standing alone, establish an intent to deceive and/or manipulate the bankruptcy court. Id. ¶ 64. The IDC gratefully acknowledges the work of Michael Resis and Marcie Thorp of SmithAmundsen LLC in preparing the amicus curiae brief on behalf of the IDC. Folta v. Ferro Engineering In Folta v. Ferro Engineering, 2015 IL 118070, the plaintiff decedent James Folta worked for Ferro Engineering from 1966 to 1970 and, during that time, was exposed to products containing asbestos. Forty-one years later, he was diagnosed with mesothelioma and filed suit against 15 defendants, including Ferro, under several theories, including negligence. The 25-year limitation period under the Workers’ Compensation Act expired before he became aware of his injury. He argued that this made his injury noncompensable under the Act and, therefore, the exclusivity of remedy under the Act did not apply to him. The Illinois Supreme Court disagreed, holding that, when an employee’s injury or disease first manifests itself after expiration of the limitations period, the employee’s action is nevertheless barred under the exclusive remedy

provision of the Workers’ Compensation Act. The Illinois Supreme Court noted that the occupational diseases statute is exclusive with respect to any disease contracted or sustained in the course of the employment. The IDC gratefully acknowledges Brad Elward and Melissa Schoenbein of Heyl, Royster, Voelker & Allen, P.C., and Patrick Stufflebeam of HeplerBroom LLC, Drew Kemp of Thompson Coburn LLP, and Julie K. Brown of Wilson Elser for their hard work in preparing the amicus curiae brief. Price v. Phillip Morris, Inc. The class action plaintiffs in Price v. Phillip Morris, Inc., 2015 IL 117687, complaining of cigarettes marketed as “lights” and “lowered tar and nicotine” were awarded compensatory and punitive damages totaling $10.1 billion. In 2005, the Illinois Supreme Court reversed concluding that the Federal Trade Commission (FTC) had specifically authorized the defendant’s use of the wording at issue. Briefs filed in different litigation in the United States Supreme Court indicated that the FTC had not, in fact, authorized cigarette companies to use the challenged wording. The plaintiffs contended that this, as well as other actions by the FTC, constituted new evidence that entitled

Recent Decisions them to a different result. In 2008, plaintiffs filed a petition for relief from judgment under § 2-1401 of the Code of Civil Procedure. After multiple appeals, the appellate court ordered the circuit court to restore the parties to the status quo that existed before defendant filed its appeal in the original circuit court judgment. In effect, the appellate court reinstated the original $10.1 billion judgment. The Illinois Supreme Court reversed, holding that § 2-1401 does not authorize a circuit court to vacate the judgment of a reviewing court. A litigant seeking to vacate the judgment of a reviewing court must file a motion to recall the mandate in the reviewing court that rendered the contested judgment. The action was dismissed without prejudice allowing plaintiffs to file a motion in the Illinois Supreme Court to recall its mandate. Since the Court has had no briefing or argument on how the standards applicable to a motion to recall the mandate would apply here, it declined to sua sponte recast the § 2-1401 petition as such a motion, and it expressed no opinion on the merits of such a motion, should it be filed. The IDC gratefully acknowledges Michael L. Resis of SmithAmundsen LLC, a member of the IDC Executive Committee, for his work in authoring the amicus curiae brief.

Stacy E. Crabtree Heyl, Royster, Voelker & Allen, P.C., Peoria

Supreme Court Holds Zoo Does Not Qualify as a Public Entity Under Tort Immunity Act Despite Relationship with Forest Preserve District The Illinois Supreme Court recently affirmed a narrow interpretation of the Tort Immunity Act insofar as it applies to nonprofit organizations as local public entities. O’Toole v. Chicago Zoological Society, 2015 IL 118254. In O’Toole, the plaintiff sued the Chicago Zoological Society, d/b/a Brookfield Zoo, for negligence after suffering injuries two years prior when she tripped and fell at the zoo. O’Toole, 2015 IL 118254, ¶ 4. The defendant operated the zoo on land owned by the Forest Preserve District of Cook County as permitted by the Cook County Forest Preserve District Act. Id. ¶¶ 4-5 (citing 70 ILCS 810/40). The defendant filed a motion to dismiss plaintiff’s lawsuit on the grounds the suit was untimely. Id. ¶ 4. Specifically, the defendant argued it qualified as a local public entity because it was a nonprofit “organized for the purpose of conducting public business.” Id. ¶ 4 (citing 745 ILCS 10/1-206). As such, the defendant claimed it was subject to the Tort Immunity Act (TIA) and therefore the one-year statute of limitations applied pursuant to the TIA. Id. The circuit court sided with the defendant, granting its motion to dismiss with prejudice. Id. ¶ 11. The appellate court reversed, finding that a nonprofit must conduct public business in order for the TIA to apply. Id. ¶ 12. According to the appellate court, the zoo was organized for public interest

but was not conducting public business. Id. The supreme court subsequently granted the defendant’s petition for leave to appeal. Id. ¶ 14. In addition to counties, townships, municipalities, and other entities commonly considered local public entities, section 1-206 of the TIA expands the term local public entity to include “any not-for-profit corporation organized for the purpose of conducting public business.” 745 ILCS 10/1-206. The supreme court revisited two prior supreme court decisions interpreting this language and found the key inquiry for cases like O’Toole is whether the nonprofit remains subject to operational control by a unit of local government. O’Toole, 2015 IL 118254, ¶¶ 18, 23. — Continued on next page

About the Author Stacy E. Crabtree is an attorney in the Peoria office of Heyl, Royster, Voelker & Allen, P.C. She represents businesses, not-for-profits, and governmental entities in commercial and tort litigation in state and federal court. She also assists clients with commercial transactions, corporate governance, and compliance issues. Ms. Crabtree received her J.D., summa cum laude, from Florida Coastal School of Law and B.A., summa cum laude, from Bradley University.

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In Carroll v. Paddock, 199 Ill. 2d 16 (2002), a nonprofit community hospital argued the plaintiff’s wrongful death claim was time barred because the hospital was a local public entity entitled to the one-year statute of limitations. The court stated: Public business is the business of government and a local public entity must either be owned by or operated and controlled by a local governmental unit. Immunity under the [TIA] only attaches to liability arising from the operation of government. Therefore, a not-for-profit is involved in the operation of the government’s public business if and only if the not-for-profit is tightly enmeshed with government either through direct governmental ownership or operational control by a unit of local government. Carroll, 199 Ill. 2d at 27 (internal citations omitted). Control may be established through evidence that the nonprofit is subject to state statutes such as the Open Meetings Act and Freedom of Information Act or the nonprofit’s operations are subject to the control of members of a public body. Id. 26-27. There, the court ultimately held the hospital was not a local public entity. Id. 25. In Brugger v. Joseph Academy, Inc., 202 Ill. 2d 435 (2002), a nonprofit private academy argued it was a local public entity entitled to immunity under the TIA. The Illinois Supreme Court repeated its holding from Carroll and found the academy “was not tightly enmeshed with government because it was not controlled by a unit of local government.” O’Toole, 2015 IL 118254, ¶ 22. The court emphasized “the academy never ceded ‘operational 20 | IDC QUARTERLY | First Quarter 2016

control’ to the public school districts and maintained autonomy in its daily work, free from government decisionmaking.” Id. Consequently, the court found the nonprofit was not entitled to immunity under the TIA. In O’Toole, the Illinois Supreme Court acknowledged that, through a written agreement between the Forest Preserve District and the defendant, the Forest Preserve District maintained control over the real property of the zoo. Id. ¶ 24. The Forest Preserve District had to authorize the sale or removal of zoo buildings and could access the zoo at all times for supervision. Id. The agreement otherwise required the defendant to (i) control the daily operations of the zoo, (ii) maintain the zoo, its building and its other property, and (iii) employ, direct, and remove all persons engaged in the operation of the zoo. Id. ¶ 25. Only half of the zoo’s funding came from tax revenues and only 10 percent of the defendant’s governing members were board members from the Forest Preserve District. Id. ¶ 26. The defendant submitted its annual audits and annual budgets to the Forest Preserve District, but the District merely passed on them as opposed to approved them. Id.

Finally, the court noted the Seventh Circuit previously reviewed whether the defendant was a political subdivision of Illinois excused from compliance with the Occupational Safety and Health Act (OSHA). Id. ¶ 27 (citing Brock v. Chicago Zoological Society, 820 F.2d 909 (7th Cir. 1987)). Although the analysis differed in some respects, the court found persuasive the Seventh Circuit’s finding that the Forest Preserve District exercises “no control over the terms and conditions of employment of zoo employees, and it does not treat them as public employees.” Id. ¶ 29 (citing Brock, 820 F.2d at 913). Consequently, the Seventh Circuit held the defendant was not a political subdivision of the state and therefore not excused from complying with OSHA. Id. ¶ 28 (citing Brock, 820 F.2d at 912). In conclusion, the Illinois Supreme Court found the Forest Preserve District did not exercise operational control over the defendant and as a result the defendant was not a local public entity under the TIA. Id. ¶ 30. Accordingly, the supreme court affirmed the appellate court’s ruling that the plaintiff’s complaint was not time barred. Id. ¶¶ 30-32.

Employee’s Services Alone Deemed Insufficient Consideration to Enforce a Contract In DiCosola v. Ryan, 2015 IL App (1st) 150007, the Illinois Appellate Court First District addressed the enforceability of a letter of intent related to the financing of a new business–a used car dealership. The letter of intent provided the plaintiff “will be the General Manager of the dealership” and 45% owner with voting rights. DiCosola, 2015 IL App (1st) 150007, ¶ 2. The plaintiff did not have any funding obligation under the letter of intent.

Id. On the other hand, the defendant was to provide $1,000,000 for start-up costs and be 10 percent owner with no voting rights. Id. After the defendant failed to provide the $1,000,000, the plaintiff filed a two-count complaint against the defendant for breach of contract and specific performance. Id. The defendant filed a motion to dismiss on multiple grounds. Id. ¶ 5. The circuit court granted the motion to dismiss finding “‘no enforceable contract was

Feature Article formed,’ the plaintiff lacked standing to bring the action ‘because the funds were to be paid to a corporation that was not formed,’ and ‘no consideration existed.’” Id. ¶ 6. The plaintiff appealed. Id. ¶ 1. In order to successfully plead a breach of contract action, a plaintiff must plead facts that demonstrate the existence of a contract, i.e., offer, acceptance, consideration, and definite and certain terms. Id. ¶ 11 (citing CNA Int’l, Inc. v. Baer, 2012 IL App (1st) 112174, ¶ 45). Consideration is essential and is defined as “some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss of responsibility given, suffered or undertaken by the other.” Id. ¶ 6. Upon review of the complaint and letter of intent, the appellate court found the plaintiff’s only obligation was to act as general manager of the dealership for which no amount of time was set forth. Id. ¶ 18. As a result, the appellate court found the consideration offered by the plaintiff to be illusory. Id. ¶ 20. An illusory promise is a promise for which performance is optional. Id. In this case, the court found the plaintiff’s employment was terminable at will without a fixed time required for services and as a result the plaintiff’s performance was optional. Id. ¶ 21. Absent sufficient consideration, the appellate court found the Letter of Intent was not an enforceable contract and affirmed the circuit court’s dismissal of the case. Id. ¶¶ 22-23. Practitioners should be cautious when drafting letters of intent or contracts to ensure consideration exists. When the sole consideration of a party is the performance of services as an employee, it is not enough for that employment relationship to be “at will.” Consider an employment contract or alternative consideration in order to form an enforceable contract.

Judge Donald J. O’Brien, Jr. (ret.) * Johnson & Bell, Ltd., Chicago

Are the IPI Instructions on Construction Negligence an Accurate Statement of Illinois Law? The current version of the IPI 55.00 series jury instructions does not accurately reflect the language of the Restatement (Second) of Torts at Section 414. Further, the current version of the IPI 55.00 series does not accurately reflect Illinois case law. This paper will explore the discrepancies between the jury instructions, Restatement (Second) of Torts at Section 414, and Illinois case law. The 55.00 series of the Illinois Pattern Jury Instructions (Instructions) is based on Restatement (Second) of Torts (Restatement), §414. Section 414 of the Restatement reads as follows: One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. Comment a. If the employer of an independent contractor retains control over the operative detail of doing any part of the work, he is subject to liability for the negligence of the employees of the contractor engaged therein, under the rules of that part of the law of Agency

which deals with the relation of master and servant. The employer, may, however, retain a control less than that which is necessary to subject him to liability as master. He may retain only the power to direct the order in which the work shall be done, or to forbid its being done in a manner likely to be dangerous to himself or others. Such a supervisory control may not subject him to liability under the principles of Agency, but he may be liable under the rule stated in this Section unless he exercises his supervisory — Continued on next page

About the Author Judge Donald J. O’Brien, Jr., B.S., graduated from Northwestern University School of Law, 1963, J.D. Judge O’Brien was principal in the firm of O’Brien, Redding and Hyde for 27 years. He has 27 years of experience as a trial lawyer, including arguing and trying cases in both the state and federal courts and the appellate level in both the state and federal courts. Appointed Cook County Circuit Court Judge, 1990; assigned 1991 to Law Division hearing major personal injury cases and contract disputes. Elected to Cook County Circuit Court for full six-year term in November 1992. As an active trial lawyer, Judge O’Brien tried 107 cases to verdict. As a Presiding Judge, he presided over approximately 320 cases that went to verdict before a jury.

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reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.

control with reasonable care so as to prevent the work which he has ordered to be done from causing injury to others. Comment b. The rule stated in this Section is usually, though not exclusively, applicable when a principal contractor entrusts a part of the work to subcontractors, but himself or through a foreman superintends the entire job. In such a situation, the principal contractor is subject to liability if he fails to prevent the subcontractors from doing even the details of the work in a way unreasonably dangerous to others, if he knows or by the exercise of reasonable care should know that the subcontractors’ work is being so done, and has the opportunity to prevent it by exercising the power of control which he has retained in himself. So, too, he is subject to liability if he knows or should know that the subcontractors have carelessly done their work in such a way as to create a dangerous condition, and fails to exercise reasonable care either to remedy it himself or by the exercise of his control cause the subcontractor to do so. Comment c. In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive 22 | IDC QUARTERLY | First Quarter 2016

55.03 Construction Negligence— Issues Made by the Pleadings/ Burden of Proof

Plaintiff _____________ seeks to recover damages from defendant[s] ________. In order to recover damages, the plaintiff has the burden of proving:



1. [The defendant] [Defendants __, __, and __] retained some control over the safety of the work;



2. Defendant[s] [acted] [or] [failed to act] in one or more of the following ways:



a. ____; or



b. ____; or



c. ____;

Restatement (Second) of Torts § 414 (2015 Lexis). IPI 55.00 Series Pattern Jury Instructions At the same time, the 55.00 series of the Instructions reads as follows: 55.01 Construction Negligence— Work Entrusted To Another A[n] [owner] [contractor] [other] who entrusts work to a [subcontractor] [contractor] [other] can be liable for injuries resulting from the work if the [owner] [contractor] [other] retained some control over the safety of the work and the injuries were proximately caused by the [owner’s] [contractor’s] [other’s] failure to exercise that control with ordinary care. 55.02 Construction Negligence—Duty

A party who retained some control over the safety of the work has a duty to exercise that control with ordinary care.

and in so [acting] [or] [failing to act], was [were] negligent in the manner in which it [exercised] [or] [failed to exercise] its control.

3. Plaintiff [name] was injured; and



4. [The defendant’s] [Defendants’ ____, ____, or ____] negligence was a proximate cause of plaintiff’s injuries. [You are to consider these propositions as to each defendant separately.] If you find that any of these propositions has not been proven as to [the defendant] [any one] [or more] [or all] [of the defendants], then your verdict should be for [the] [that] [those] defendant[s]. On the other hand, if you find that all

of these propositions have been proven as to [the defendant] [any one] [or more] [or all] [of the defendants], then you must consider defendant[‘s] [s’] claim[s] that the plaintiff was contributorily negligent. As to [that] [those] claim[s], defendant[s] has the burden of proving:

A. Plaintiff [name] acted or failed to act in one or more of the following ways:



1. ____; or



2. ____; or



3. ____.;



and in so [acting] [or] [failing to act] was negligent, and



B. Plaintiff ’s negligence was a proximate cause of [his injury] [and] [damage to his property]. If you find that plaintiff has proven all the propositions required of [him] [her], and the defendant[s] ha[s][ve] not proven all of the propositions required of the defendant[s], then your verdict should be for the plaintiff as to [that] [those] defendant[s] and you will not reduce plaintiff’s damages. If you find that defendant[s] [has] [have] proven all of the propositions required of [the] [those] defendant[s], and if you find that the plaintiff’s contributory negligence was greater than

50% of the total proximate cause of the injury or damage for which recovery is sought, then your verdict should be for [that] [those] defendant[s]. If you find that defendant[s] [has] [have] proven all of the propositions required of [the] [those] defendant[s], and if you find that the plaintiff’s contributory negligence was less than 50% of the total proximate cause of the injury or damage for which recovery is sought, then your verdict should be for the plaintiff as to [that] [those] defendant[s] and you will reduce the plaintiff’s damages in the manner stated to you in these instructions. 55.04 Construction Negligence— More Than One Person Having Control One or more persons may have some control over the safety of the work. Which person or persons had some control over the safety of the work under the particular facts of this case is for you to decide. Elements of Construction Negligence Action Under Section 414 Based on the Restatement at Section 414, there are certain elements of the cause of action which must be reflected in the jury instructions. These elements are: 1. Existence of relationship—there must be a relationship between the employer of the independent contractor and the independent contractor.

2. Retention of some degree of control over part of the work—the employer of the independent contractor must have maintained some degree of control over any part of the work by retaining sufficient control over: a. The manner, means and methods of the work being done; or b. The operative details of the work being done. 3. Duty of reasonable care—the employer must owe a duty to others, and must be found to have breached the duty by failing to exercise reasonable care with respect to the exercise of its retention of some degree of control over any part of the work. Comment a—vicarious liability (law of agency) The first half of Comment a to section 414 provides for vicarious liability of the employer for the conduct of the independent contractor. The employer of the independent contractor is subject to liability for the negligence of the employees of the independent contractor retained by the employer under agency principles. The employer may be liable for retention of some degree of control which can be less than that which is necessary to subject the employer to liability as the master. Comment c. defines the degree of retained control that the employer of the independent contractor must exercise to subject the employer of the independent contractor to vicarious liability based on respondeat superior or the laws of agency. In other words, the employer is subject to liability for damages if: — Continued on next page

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a. The employer retains at least some degree of control over the manner, means, and methods of the work being done; and; and b. There exists the retention of a right of supervision by the employer of the subcontractor such that the contractor is not entirely free to do the work in his own way. Comment b—direct liability The second theory of liability under section 414 is the theory of direct liability. Under most circumstances, direct liability in a constructive negligence context applies when the principal contractor (general contractor) entrusts a part of the work to subcontractors and superintends the entire job. Under these circumstances, the principal contractor is subject to liability if the principal contractor: a. fails to prevent subcontractors from doing even the details of the work in a manner unreasonably dangerous to others; and b. if the principal contractor knew or should have known that the subcontractor’s work was being done in an unreasonably dangerous manner; and c. had the opportunity to prevent the risk of harm by exercising the power of control which the principal contractor had retained in itself.

In addition, the principal contractor is subject to liability if:

d. the principal contractor knew or should have known that the subcontractors carelessly performed their work as to create a dangerous condition; and

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e. failed to exercise reasonable care either to remedy the dangerous condition, or, through the exercise of the principal contractor’s control, caused the subcontractor to remedy the dangerous condition. The IPI instructions do not require that the plaintiff prove actual or constructive knowledge of the principal contractor under a direct liability theory. However, Comment b, which defines the theory of direct liability under Section 414, clearly requires that the plaintiff prove actual or constructive knowledge of the principal contractor before the principal contractor may be subject to liability. (For a discussion of Restatement Section 414 as to Comments a, b, and c, see Cochran v. George Sollitt Constr. Co., 358 Ill. App. 3d 865, 876-879 (1st Dist. 2005), and Calderon v. Residential Homes of America, Inc., 381 Ill. App. 3d 333, 341-342 (1st Dist. 2008). Discussion of Illinois Case Law As of the writing of this paper, five cases have addressed the issue of whether the IPI 55.00 series accurately states Illinois law. The first case to address the issue was Jones v. DHR Cambridge Homes, 381 Ill. App. 3d 18 (1st Dist. 2008), which addressed the giving of IPI 55.01, 55.02, and 55.03. The court found that the IPI accurately states Illinois law. Jones was a vicarious liability case which invokes Comments a. and c. of the Restatement. The next case to address the issue was Diaz v. Legat Architects, Inc., 397 Ill. App. 3d 13 (1st Dist. 2009). This was a direct liability case, and the court addressed IPI 55.01, 55.02, and 55.03 but found that the IPI accurately stated Illinois law involving a direct liability case which invokes Comments a and b.

The next case to address the issue was Calloway v. Bovis Lend Lease, 2013 IL App (1st) 112746, wherein the court found that IPI 55.00 series accurately states Illinois law. The case involved both direct and vicarious liability, and the court addressed Restatement (Second) Comments a, b, and c. The next case was Ramirez v. FCL Builders, Inc., 2014 IL App (1st) 123663. This case involved both vicarious and direct liability. The court addressed IPI 55.01 and found that 55.01 was not a correct statement of Illinois law, the reasons being that the Restatement requires that one person be in control of the work by the use of the phrase “one who entrusts work to an independent contractor, but who maintains the control of any part of the work.” Ramirez, 2014 IL App (1st) 123663, ¶ 120. IPI 55.01 does not use “the control,” but rather, “some control,” and because the jury is not instructed as to the amount of control required, a jury could find that minimal control over safety is sufficient. The court also found that IPI 55.01 does not contain an explanation of “retained control,” and 55.01 does not define what conduct constitutes control. The court found that IPI 55.01 was not an accurate statement of Illinois law, but did not reverse because they found that the instruction resulted in no serious prejudice to the defendant. Id. ¶ 173. The final case was Lee v. Six Flags Theme Parks, Inc., 2014 IL App (1st) 130771, which involved both vicarious and direct liability. The court addressed IPI 55.01 and adopted the Ramirez decision, and held that IPI 55.01 does not accurately state Illinois law. In regards to Jones, I do not believe that it has any precedential value because the issue before the court was whether Martens v. MCL Construction Corp.,

347 Ill. App. 3d 303 (1st Dist. 2004), rendered the IPI 55.00 series inaccurate. In Jones, the parties and the court assumed the IPI 55.00 series to be an accurate statement of law, and only made a determination as to whether Martens changed the accuracy of 55.01. The court found that it did not. Diaz was a direct liability case. Comment b establishes two sets of circumstances that create direct liability. The first is when the subcontractors do their work in a dangerous manner and second is where the subcontractor creates a dangerous condition, keeping in mind that a direct liability case invokes the second half of Comment a and Comment b. Comment b requires that the contracting entity have actual or constructive knowledge that the subcontractor is doing its work in a manner unreasonably dangerous to others and/or the contracting entity knew or should know that subcontractor has created a dangerous condition. The court found that the IPI accurately stated Illinois law; yet, if one looks at 55.03 (Construction Negligence – Issues Made By The Pleadings/Burden of Proof), there is no requirement that plaintiff prove actual or constructive knowledge of the employing defendant. However, the Restatement requires actual or constructive knowledge in the case of direct liability. The case law also requires actual or constructive knowledge in a direct liability case. (See O’Gorman v. Paschen, 2015 IL App (1st) 133472, ¶ 100; see also Cochran, 358 Ill. App. 3d at 879-880; Lee, 2014 IL App (1st) 130771, ¶102; Calderon, 381 Ill. App. 3d at 347. As for 55.01, that instruction is flawed because it does not define the amount of control required, nor does it define what conduct constitutes control. Further, the instruction does not incorporate Comment c, which points

out certain actions by the contracting party that do not constitute control. 55.01’s biggest flaw is that it does not require the degree of control necessary, i.e., where the subcontractor is not free to do the work in his own way. 55.01 only requires “some control,” which is not accurate and not consistent with the Restatement. Therefore, 55.01 is not an accurate statement of Illinois law, nor is it consistent with the Restatement. A recent Second District case, Hiatt v. Western Plastics, Inc., 2014 IL App (2d) 140178, has narrowed the scope of control. Hiatt held that the control of the work must extend to the safety of the work and must include the safety of the work being done by the injured employee. A broad right of control is not enough, but the control must extend to the work being done by the injured employee. As to vicarious liability, IPI 55.01, 55.02, 55.03, and 55.04 are not correct statements of the law in another regard. Because a breach of due care by the hiring entity must proximately cause the injuries, the control sufficient to impose liability must be specific to that aspect of the work in which plaintiff is involved. Put another way, in order to have a proximate nexus, the control must be specific to plaintiff’s work. Two examples of how IPI 55.01, 55.02, 55.03, and 55.04 would lead to an incorrect result are as follows: (a) assume the hiring entity retains sufficient control over the carpentry work, but not over the plumbing work, and plaintiff is doing plumbing when injured; (b) assume the hiring entity has retained sufficient control over all of the foundation work, but has not retained sufficient control over the roofing work, and plaintiff is injured while working on the roof. In each of the two examples, the hiring entity would have sufficient

control over some, but not all, of the work. Yet, under IPI 55.01, 55.02, 55.03, and 55.04, the hiring entity would be subject to liability because IPI 55.01, 55.02, 55.03, and 55.04 do not restrict themselves to control over the work that plaintiff is doing. Therefore, the hiring entity, while having the requisite control over some of the work, could then be subject to liability under IPI because the IPI does not restrict itself to control over the work plaintiff is doing, but just talks about control over the safety of the work. Because there must be a proximate nexus between the requisite control and the injuries, the current IPI does away with the requisite nexus by allowing a hiring entity to become liable for the requisite control that has no proximate nexus to the injuries. In regard to the use of the phrase “some control over the safety of the work” in IPI 55.02, 55.03, and 55.04, I do not believe this statement is consistent with §414 of the Restatement. The Restatement does not use the term “safety of the work,” but uses the term “control of the work.” All of the references to control are directed to the work and not the safety of the work. An example of how the phrase “some control over the safety of the work” could lead to an incorrect result is as follows: Assume the general contractor has a supervisor on the job whose sole function was to note “safety violations,” and bring them to the attention of the subcontractor. Said supervisor’s job could be construed as having some control over the safety of the work, even though the supervisor would have no control over the details of the work, and, therefore, could not forbid the work being done, nor could he correct a dangerous condition or cause the subcontractor to correct the same. Thus, under the current IPI 55.00 series, the general contractor would be subject — Continued on next page

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to liability, while under the Restatement §414 he would not be subject to liability. Proposed Jury Instructions The author proposes the following instructions which the author believes more accurately reflect the Restatement and the Illinois case law than the existing IPI 55.00 series: 55.01 Liability of One who Employs an Independent Contractor One who employs an independent contractor normally is not liable for the acts or omissions of the independent contractor. However, if the employer of an independent contractor retains sufficient control over the means and methods and the operative details of the independent contractor’s work, he may subject himself to liability for the acts or omissions of the independent contractor. He may also become liable if he retains sufficient control to supervise the work done by the independent contractor and knows or should know that the work is being done in a dangerous manner or in such a way as to create a dangerous condition and fails to exercise his control in such a manner to remedy the dangerous condition or cause the subcontractor to do so, and/or that he fails to prevent the work being done in a dangerous manner, said failures proximately causing injuries.

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55.02 Construction Negligence – Duty A party who retains sufficient control over the work being done by the plaintiff has a duty to exercise that control with ordinary care. 55.03 Retains Sufficient Control When I used the term “retains sufficient control,” I mean that the [owner] [contractor] [other] must have maintained some degree of control over the manner, means and methods and/or the operative details of the work being done by the plaintiff. Alternatively the [owner] [contractor] [other] may have retained sufficient control if he has supervisory control that allows him to forbid the work being done in a dangerous manner; if he knows or should know that the work is being so done; or if he knows or should know that the work has been done in such a way as to create a dangerous condition and he fails to remedy the dangerous condition himself or cause the subcontractor to do so. 55.04 What is not Sufficient Control For purposes of making the [owner] [contractor] [other] liable for the acts or omissions of the subcontractor: The [owner] [contractor] [other] does not have sufficient control if he merely: (a) has a general right to order the work

stopped or resumed; and/or (b) a general right to inspect the progress of the work; and/or (c) a general right to receive reports on the work being done; and/or (d) a general right to make suggestions or recommendations which need not necessarily be followed; and/or (e) a general right to prescribe alterations and deviations. 55.05 Construction Negligence— Issues made by the Pleadings/ Burden of Proof In the case of vicarious liability, under Restatement Comments a. and c., paragraph 1 should read: [The defendant] [Defendants ________, _______, and _______] retained sufficient control over the work being done by the plaintiff. In the case of direct liability under the last half of Restatement Comment a. and Comment b., paragraph 1 should read the same as paragraph 1 above. In the case of direct liability, paragraph 2 should read: The defendant knew or by the exercise of reasonable care [should know that the subcontractor was doing the work in a way unnecessarily dangerous to others] [or knew or should know that the subcontractors have carelessly done their work in such a way as to create a dangerous condition. Then continue with numbers 2 through 4 and the rest of

Appellate Practice Corner IPI 55.03 as presently set out in IPI. 55.06 Construction Negligence— More than One Person Having Sufficient Control One or more persons may have sufficient control over the work, which person or persons had sufficient control over the work under the particular facts of this case is for you to decide. It is noteworthy that the last time the Illinois Supreme Court addressed the Restatement (Second) of Torts, § 414, was in 1965, in Larson v. Commonwealth Edison, 33 Ill. 2d 316 (1965), in the context of a Structural Work Act case (Said Act was subsequently repealed.) Further, the Supreme Court has never addressed the accuracy of the IPI 55.00 series. Conclusion It is the author’s hope that the Illinois Supreme Court eventually addresses the accuracy of the IPI series 55.00 construction negligence jury instructions. Indeed, the jury instructions need to be amended to reconcile the inconsistencies discussed in this paper. The proposed IPI 55.00 series jury instructions set forth in this paper accurately reflect the law of construction negligence and provide a framework for further discussion.

Scott L. Howie Pretzel & Stouffer, Chartered, Chicago

More Than Just a Procedural Requirement: Taking the Post-Trial Motion Seriously A post-trial motion is the first formal procedural step in an appeal from a judgment on a jury verdict. Yet trial attorneys who plan to appeal such judgments—perhaps aware of the long odds against most such motions, and looking forward to a potentially more-receptive appellate court—often treat the posttrial motion as a strictly procedural obligation, without giving it the time and attention it deserves. But it is a mistake to treat the post-trial motion as a hoop to jump through on the way to an appeal, with the intention of explaining one’s arguments more thoroughly in an appellate brief. Especially when an allegation of error implicates the trial judge’s discretion, a lawyer who gives it short shrift in the post-trial motion misses a crucial opportunity. The post-trial motion is the last chance to make an argument before the judge whose discretion is at issue. More importantly, because of the standard of review that will govern an appeal, it may be the only opportunity for meaningful reconsideration of some of the challenged rulings. This edition of the Appellate Practice Corner describes the procedural requirements of a post-trial motion and the role they play in laying the foundation for a successful appeal. Requirements of a Post-Trial Motion

* The author wishes to thank colleague and friend Chuck Rantis for his insight and input during the preparation of this article.

Section 2-1202(b) of the Code of Civil Procedure describes the substantive

content that is required of a post-trial motion: The post-trial motion must contain the points relied upon, particularly specifying the grounds in support thereof, and must state the relief desired, as for example, the entry of a judgment, the granting of a new trial or other appropriate relief. 735 ILCS /2-1202(b). Supreme Court Rule 366(b)(2)(iii) expressly links this requirement to the demands of appellate review: “A party may not urge as error on review of the ruling on the party’s post-trial motion any point, ground, or relief not specified in — Continued on next page

About the Author Scott L. Howie is a partner 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 University in 1989 and his law degree from ChicagoKent 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.

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Appellate Practice Corner | continued

The post-trial motion is the last chance to make an argument before the judge whose discretion is at issue. More importantly, because of the standard of review that will govern an appeal, it may be the only opportunity for meaningful reconsideration of some of the challenged rulings.

the motion.” Ill. S. Ct. R. 366(b)(2)(iii) (eff. Feb. 1, 1994). The supreme court has construed these provisions as requiring “a simple, succinct statement of the factual or legal basis for movant’s belief that the trial court action was erroneous.” Brown v. Decatur Mem. Hosp., 83 Ill. 2d 344, 350 (1980). Purpose of Specificity in a Post-Trial Motion More than just a procedural technicality, this requirement is central to the concept of appellate review. The supreme court long ago held that the “threefold” purpose of a post-trial motion demands more than a cursory list of alleged errors: First, it allows the decision maker who is most familiar with the events of the trial, the trial judge, to review his decisions without the pressure of an ongoing trial and to grant a new trial if, on reconsideration, he concludes that his earlier decision was incorrect. . . . Second, by requiring the statement of the specific grounds urged as support for the claim of error, the rule allows a reviewing court to ascertain from the record whether the trial court 28 | IDC QUARTERLY | First Quarter 2016

has been afforded an adequate opportunity to reassess the allegedly erroneous rulings. Third, by requiring the litigants to state the specific grounds in support of their contentions, it prevents them from stating mere general objections and subsequently raising on appeal arguments which the trial judge was never given an opportunity to consider. Brown, 83 Ill. 2d at 349–50 (citations omitted). In Brown, the supreme court held that the plaintiff’s post-trial motion was “clearly inadequate” under both the Code of Civil Procedure and Supreme Court Rule 366(b)(2)(iii) because it failed to specify the grounds on which it was based. The plaintiff alleged error in the jury instructions, stating only that “‘[t]he Court refused to give Plaintiff’s tendered instructions 9, 11, and 16’ and that ‘[t]he Court gave, over objection of the Plaintiff, Defendant’s tendered instructions 2, 3, and 4.’” Id. at 349 (quoting motion). The supreme court held that these cursory assertions were not enough to satisfy the purpose of a post-trial motion, and affirmed the judgment. Id. at 353.While Brown concerned jury instructions, the

court observed that the requirement of specificity in post-trial motions “is not limited to questions concerning jury instructions[.]” Id. at 350. The threefold function of a post-trial motion, as described in Brown, reflects the intended role of the trial judge in the preliminary phase of an appeal—when the events of the trial are being examined at greater leisure, sometimes long after it has ended. As to the first of the Brown considerations, the trial judge is “the decision maker who is most familiar with the events of the trial,” but because of the exigencies of trial, may have ruled on many objections quickly and without much contemplation. It should not be taken as a slight to suggest that decisions made under those circumstances should be reconsidered more thoughtfully; on further reflection, a trial judge may be made to see that another decision would have been preferable. This is especially so if such a ruling has undesirable ramifications later in the trial, or if subsequent events call that ruling into question. The second Brown consideration reflects the interest in correcting error in the trial court, by ensuring that the trial judge was sufficiently apprised of the claimed error so as to remedy it. Echoing the idea that “the decision maker who is most familiar with the events of the trial” is the one best situated to reevaluate the challenged rulings, this second consideration tries to ensure that that person is given the arguments and authorities necessary to that task. This concern underscores the notion that appellate remedies are intended for those situations in which the trial courts have failed to fix a mistake. If a trial court has not been given an adequate argument for post-trial relief, then the failure is not the court’s; it is the litigant’s, and does not call for reversal.

Likewise, the third Brown consideration recognizes that the post-trial motion is meant to impose a limitation on the litigant’s appellate arguments by ensuring that they do not differ significantly from those the trial court addressed. It is not enough to state “mere general objections” in the post-trial motion, because such objections would leave too much room for new arguments camouflaged as more-elaborate versions of the original ones. Again, this concern respects the role of the trial judge as the first line of post-trial relief, making sure that he or she has been fully apprised of “the points relied upon” for relief, and the specific “grounds in support thereof,” before the appellate court is asked to reverse. As a whole, these considerations serve the more-general interest in avoiding unnecessary appeals. See Schultz v. Republic Ins. Co., 124 Ill. App. 3d 342, 344 (1st Dist. 1984). They also evoke the appellate and supreme courts’ frequent observation that “a reviewing court is not simply a depository into which a party may dump the burden of argument and research.” See Lake County Grading Co., LLC v. Village of Antioch, 2014 IL 115805, ¶ 36 (quoting People ex rel. Illinois Dep’t of Labor v. E.R.H. Enters., Inc., 2013 IL 115106, ¶ 56). Just as “[a] court of review is entitled to have the issues clearly defined and to be cited pertinent authority,” so too is the trial court—where litigants are expected to present specific arguments with factual and legal support, rather than claiming general error and hoping the court can sort it out. Lake County Grading Co., 2014 IL 115805, ¶ 36 (quoting E.R.H., 2013 IL 115106, ¶ 56). Under that principle, for instance, a plaintiff’s posttrial motion was insufficiently specific to preserve an alleged error in the jury instructions when it contained “nothing to

indicate that the trial court was apprised of his jury instruction contentions and had the opportunity to reassess its ruling below, or that he is not simply raising on appeal an argument that he never raised below.” Webber v. Wight & Co., 368 Ill. App. 3d 1007, 1019–20 (1st Dist. 2006). None of this means that an appellate brief must be a verbatim recitation of the post-trial motion. So long as the arguments are the same in substance, there is nothing to prevent a litigant from improving them in form. To the contrary, arguments are likely to evolve based on an adversary’s responses and the trial court’s reaction. If it is possible to provide the appellate court a clearer and more persuasive version of an argument that was made below, it is desirable to do so. Indeed, appellate counsel can often be helpful in refining arguments that were made in the post-trial motion. If there were no appellate counsel involved with the motion in the first place, their contribution can be vital to a successful appeal—as long as their role is to better the arguments that were in the motion, and not to make substantially different ones. By the same token, however, an attorney who is defending a judgment on appeal should recognize the difference between improved versions of the arguments that were made in the post-trial

motion and entirely new arguments that were not—and should argue that the latter, if there are any, were forfeited by being left out of the motion. Conclusion The post-trial motion is more than just a dry run for the appeal. It plays an important role of its own in the appellate process, and should be treated as an independently significant part of that process—even if it is thought to have little chance of succeeding. Indeed, many arguments are more promising in the trial court than they will ever be on appeal; by giving them less than a thorough treatment in the post-trial motion, an attorney may be passing up the best hope for their success. In any event, part of making a case on appeal is showing that the trial court had a meaningful opportunity to correct the alleged error. A post-trial motion that is only meant to preserve an error for appellate review, and merely recites allegations of error without adequate explanation or support, may not preserve the error at all. Even if the odds are against it, an attorney preparing a posttrial motion should treat it as something that can be won, and make the sort of thorough and persuasive arguments needed to do so.

[P]art of making a case on appeal is showing that the trial court had a meaningful opportunity to correct the alleged error. A post-trial motion that is only meant to preserve an error for appellate review, and merely recites allegations of error without adequate explanation or support, may not preserve the error at all.

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Commercial Law James K. Borcia Tressler LLP, Chicago

Illinois Supreme Court Rejects Skeletal Motion Defense to Class Action Mootness A plaintiff files a skeletal class certification motion the same day as its putative class complaint. The defendant tenders a check to the plaintiff representing everything the plaintiff could recover for its action. Is the plaintiff’s class claim moot? That is the question that the Illinois Supreme Court recently decided in Ballard RN Center, Inc. v. Kohll’s Pharmacy and HomeCare, Inc., 2015 IL 118644. The plaintiff’s complaint alleged that it received an unsolicited fax advertisement from the defendant. The fax purportedly lacked the required “opt out” notice, the plaintiff had no prior relationship with the sender, and had not

persons in Illinois. The plaintiff purported to state three claims—violation of the Telephone Consumer Protection Act (TCPA), violation of the Illinois Consumer Fraud Act; and conversion. On the same day that the plaintiff filed its complaint it filed a motion seeking certification of three classes. Id. ¶ 8. The motion contained no factual allegations justifying certification, and stated that plaintiff would file a memorandum of law “in due course.” Id. ¶ 9. Defendant moved for partial summary judgment on the TCPA claim arguing that on three separate occasions it had made an unconditional tender of a sum covering all damages the plaintiff

The court further found that a class action was appropriate, rejecting the defendants’ view that there was something fundamentally wrong with notifying class members by unsolicited faxes that they were members of a class arising from sending of unsolicited faxes.

given general permission for such faxes to be sent. Ballard RN Center, 2015 IL 118644, ¶ 6. The plaintiff claimed that the fax it received was part of a mass broadcast of fax advertisements that had been received by at least forty other 30 | IDC QUARTERLY | First Quarter 2016

could possibly recover under the Act. The defendant argued that that the plaintiff’s motion for class certification did not satisfy the standard of Barber v. American Airlines, and its TCPA claim was therefore moot. Id. ¶ 10. The trial

court denied the motion for summary judgment, holding that Barber merely requires the filing of some sort of motion for class certification but did not require any particular content of the motion. Id. ¶ 17. The court subsequently certified a class, and defendant appealed. The appellate court found that commonality appeared to exist, as there were significant common issues of fact and law pertaining to all class members. The court declined to hold that evidence of consent among class members was sufficient to defeat certification, or that recipients whose faxes were routed straight to a computer, and thus had never printed the blast fax out, might present different issues. The court further found that a class action was appropriate, rejecting the defendants’ view that there was something fundamentally wrong with notifying class members by unsolicited faxes that they were members of a class arising from sending of unsolicited faxes. Id. ¶ 21. Nevertheless, the appellate court held that plaintiff’s TCPA claim was moot. Barber held that payment to the class representative does not moot a class claim when the class representative has filed a motion for certification sufficient

About the Author James K. Borcia is a partner with the Chicago firm of Tressler LLP, and is active in the firm’s litigation practice 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.

Civil Practice and Procedure to bring the interests of the class before the court. Accordingly, the appellate court held, a motion sufficient to satisfy Barber had to include sufficient factual allegations to bring the absent class members’ interests before the court. The plaintiff’s motion had not done that, the court found; the plaintiff had merely filed a “shell” motion, and if a shell motion was sufficient to block Barber mootness, then Barber means nothing. Id. ¶ 26. The Illinois Supreme Court reversed. It held that Barber did not “impose any sort of threshold evidentiary or factual basis” for class certification motions— only a timing requirement. Id. ¶ 36. The court also found that Ballard’s motion for certification was sufficient and not a “frivolous shell motion,” because it “contains a general outline of plaintiff’s class membership, class action allegations, and effectively communicates the fundamental nature of the putative class action.” Id. ¶ 38. The Ballard decision is important because it eliminates opportunities for defendants to moot class actions by tendering relief when plaintiffs have filed even a basic motion for class certification. The ruling prevents defeating class actions through pre-certification motion offers as many class action plaintiffs’ counsel file motions for summary judgment with their complaints to avoid a mootness argument. This decision will likely lead to more motions for class certification being filed concurrently with complaints to prevent mootness arguments which in turn will hinder defendants’ ability to successfully challenge the sufficiency of such motions on grounds of mootness. 

Donald Patrick Eckler and Quinn P. Donnelly Pretzel & Stouffer, Chartered, Chicago

It Ain’t Over ’til It’s Over: Under Illinois Law Finality is Not So Final This malapropism is one of Yogi Berra’s best. While it is unlikely that he was referring to litigation when he uttered these words, their application is undeniable. This timeless quip is an appropriate response to clients inquiring about the final resolution of a dispute in Illinois where two statutes, 735 ILCS 5/2-1301 and 735 ILCS 5/2-1401, allow litigants to revisit otherwise final orders and judgments. Recently, the Illinois Supreme Court, in Warren County Soil and Water Conservation District v. Walters, 2015 IL 117783, clarified the application of 735 ILCS 2-1401. In the wake of the Court’s opinion, this article will provide an overview of the statues that can be used to obtain relief from judgment in Illinois and can, in some cases, extend the time for a party to seek such relief. The Illinois Code of Civil Procedure, by way of sections 2-1301 and 2-1401, provides plaintiffs and defendants with a mechanism to vacate both final and non-final orders and judgments. Most often these rules are employed by plaintiffs to vacate dismissals for want of prosecution, and by defendants to vacate default judgments. The first step in understanding and applying sections 2-1301 and 2-1401 is to identify the final or non-final nature of the order or judgment involved. Under Illinois law, a dismissal for want of prosecution does not become a final order until the period for refiling under 735 ILCS 5/13-217 has expired. Jackson

v. Hooker, 397 Ill. App. 3d 614, 618 (1st Dist. 2010). Section 13-217, known as the “savings statute,” provides a plaintiff with a one-time right to refile a claim — Continued on next page

About the Authors Donald Patrick Eckler is a partner at Pretzel & Stouffer, Chartered. He practices in both Illinois and Indiana in the areas of commercial litigation, professional malpractice defense, tort defense, and insurance coverage. Mr. Eckler earned his undergraduate degree from the University of Chicago and his law degree from the University of Florida. He is a member of the Illinois Association of Defense Trial Counsel, the Risk Management Association, and the Chicago Bar Association. He is the co-chair of the CBA YLS Tort Litigation Committee. The views expressed in his article are his, and do not reflect those of his firm or its clients. Quinn P. Donnelly is an Associate at Pretzel & Stouffer, Chartered, where his practice includes commercial disputes, employment claims, insurance defense, and professional negligence claims. Mr. Donnelly earned his J.D., cum laude, from the John Marshall Law School with a certificate 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 Honorable 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.

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that has been voluntarily dismissed or dismissed for want of prosecution within one year of the entry of the dismissal order or within the remaining period of limitation, whichever is greater. 735 ILCS 5/13-217. By providing the plaintiff with this additional time to refile, section 13-217 necessarily delays the final nature of any judgment. Jackson, 397 Ill. App. 3d at 618. As a result, in the event that a case is dismissed for want of prosecution or voluntarily dismissed under section 2-1009, that dismissal does not become a final judgment for the purposes of sections 2-1301 and 2-1401 until a year has passed from the entry of the dismissal order. Jackson, 397 Ill. App. 3d at 618. After a year has passed, the plaintiff is no longer entitled to refile the claim, and the dismissal order becomes a final and appealable order, but that order is not quite final. 735 ILCS 5/13-217. The plaintiff, under section 2-1301, has 30 days to move to vacate the dismissal order. 735 ILCS 5/2-1301(e). Such a motion will be granted so long as the party seeking to vacate the judgment can show a reasonable justification. Id. After a year and 30 days have passed since entry of the initial dismissal order the case is still not over. 735 ILCS 5/21401. Under section 2-1401, a party can petition the court to vacate the dismissal order, but will be subject to the requirements discussed below. Id. There is also an important distinction between an “order of default” and a “default judgment.” An order of default is not a final judgment as it does not dispose of the case and determine the rights of the parties, but merely precludes the defaulting party from raising additional defenses. Jackson, 397 Ill. App. 3d at 620. By contrast, a default judgment is a final judgment that resolves the case 32 | IDC QUARTERLY | First Quarter 2016

entirely and includes: (1) a finding of the issues for the plaintiff; and (2) an assessment of damages. Id. at 621. While section 2-1301(e) applies to both final and non-final orders and judgments, section 2-1401 only provides relief from final orders and judgments. 735 ILCS 5/2-1401. Motions to Vacate Pursuant to Section 2-1301 Section 2-1301(e) provides litigants with the option to bring a motion to vacate a non-final or final order during the course of litigation. 735 ILCS 5/21301(e). Under section 2-1301(e), a litigant can move to vacate a non-final order or judgment at any time before that order or judgment becomes final. Id.; Federal Nat’l Mortg. Ass’n v. Tomei, 2014 IL App (2d) 130652, ¶ 9. Once the order or judgment is rendered final, the litigant must bring its motion within 30 days. 735 ILCS 5/2-1301. In the event that the litigant fails to bring a motion to vacate during the 30 day period, the court loses jurisdiction and the party’s only option is to bring a petition to vacate the judgment under the more exacting standards provided for in section 2-1401. Blazyk v. Daman Express, Inc., 406 Ill. App. 3d 203, 206-07 (2d Dist. 2010). In Illinois, the moving party bears the burden of establishing that the judgment should be vacated. Larson v. Pedersen, 349 Ill. App. 3d 203, 207 (2d Dist. 2004). Generally, the court will vacate an order or judgment within 30 days “upon any terms and conditions that shall be reasonable.” Larson, 349 Ill. App. 3d at 207 (citing 735 ILCS 5/2-1301(e)). In reviewing a section 2-1301(e) motion the court’s primary consideration is “whether substantial justice is being done between the parties and whether it is reasonable

under the circumstances to proceed to trial on the merits.” Id. at 207-08 (citing Mann v. Upjohn Co., 324 Ill. App. 3d 367, 377 (1st Dist. 2001)). The Illinois courts have expressed a preference that, if possible, litigation be determined on its merits. Jones v. Fox, 313 Ill. App. 3d 249, 257 (3d Dist. 2000). As a result, where a party provides a reasonable justification, the court will generally exercise its discretion and grant a motion to vacate, pursuant to section 2-1301(e). Petition to Vacate Pursuant to 2-1401 The entry of a final order or judgment may not end the litigation in the trial court. Section 2-1401 entitles a party to bring a petition to vacate a final judgment or order after the 30 day period provided for under section 2-1301(e) has expired and for two years from the date of the entry of the judgment or order. 735 ILCS 5/2-1401. In order to ensure that a section 2-1401 petition is timely filed a party should file the petition no later than the day before the anniversary date of the entry of the final order or judgment. See generally Parker v. Murdock, 2011 IL App (1st) 101645, ¶ 21 (superseding its opinion withdrawn on Sept. 20, 2011). The two year period excludes time during which the party seeking relief is under legal disability or duress and when the ground for relief is fraudulently concealed. 735 ILCS 5/2-1401(c). As a procedural note, a trial court only retains jurisdiction over a matter for 30 days after it has entered a final judgment. Blazyk, 406 Ill. App. 3d at 206. As a result, a party seeking relief from a final judgment under section 2-1401 must do so through a petition to the court, not a motion. Id. The filing of a section 2-1401 petition is a new proceeding, not a continuation of the old proceeding.

735 ILCS 5/2-1401(b); Sarkissian v. Chicago Bd. of Educ., 201 Ill. 2d 95, 102 (2002). A section 2-1401 petition, just like any other initial pleading, is subject to the rules of civil procedure in Illinois. People v. Vincent, 226 Ill. 2d 1, 8 (2007). Specifically, a party who files a section 2-1401 petition must give notice to opposing parties as required under Supreme Court Rule 106, which dictates that the proper service must comply with the requirements of Supreme Court Rule 105. Ill. S. Ct. R. 106; Blazyk, 406 Ill. App. 3d at 207. In addition, a section 2-1401 petition invites a responsive pleading and may be challenged by a motion to dismiss for a failure to state a cause of action or for a failure to state a claim for which relief can be granted. Vincent, 226 Ill. 2d at 8. The purpose of a section 2-1401 petition is to present a legal or factual challenge to a final judgment or order. Warren County, 2015 IL 117783, ¶ 31. While the petition is ordinarily used to bring facts to the attention of the trial court which, if known at the time of the judgment would have precluded its entry, the petition may also be used to challenge a purportedly defective judgment for legal reasons. Id. ¶ 31. In order to prevail on a section 2-1401 petition the petitioner must establish by a preponderance of the evidence each of the following: (1) the existence of a meritorious defense; (2) due diligence in presenting this defense in the underlying litigation; and (3) due diligence in the filing of this section 2-1401 petition for relief. Id. ¶ 51 (citing Smith v. Airoom, Inc., 114 Ill. 2d 209, 221 (1986)). The petitioner is required to support its section 2-1401 petition with an affidavit or other materials that are not otherwise included in the record. 735 ILCS 5/2-1401(b).

In proving the first element, the existence of a meritorious claim or defense, a party is not required to show the validity of the meritorious claim or defense, but only its existence. Pirman v. A&M Cartage, 285 Ill. App. 3d 993, 1001 (1st Dist. 1996). As a result, this element is generally easily satisfied. Next, the party bringing the petition must show that it acted diligently both in the underlying action and in filing the petition to vacate the final order or judgment. The Illinois Supreme Court explained that section 2-1401 is not intended to relieve the defeated party for its own mistakes, negligence, or for the negligence of its attorney. Warren County, 2015 IL 117783, ¶ 38 (citing Airoom, 114 Ill. 2d at 222). Instead, section 2-1401 will only provide relief where the petitioner can show that its failure to defend or prosecute the lawsuit was “the result of an excusable mistake and that the petitioner acted reasonably under the circumstances and was not negligent.” Id. In evaluating the petitioner’s diligence the court examines the particular facts, circumstances, and equities of the underlying litigation. Warren County, 2015 IL 117783, ¶ 50. As a result, the petitioner must provide an affidavit and other documentation in support of its claimed diligence. Id. ¶ 31. Just as in any other civil proceeding, the party responding to the petition can and should provide its own affidavit and documents in opposition of the petition. Id. 51. The courts are cognizant of the fact that a section 2-1401 petition represents the last option to vacate a judgment or order. From the outset, the procedural context of these petitions implies that a petitioner—who had several other opportunities to vacate the judgment—lacks the diligence necessary to prevail. In

order to successfully refute this lack of diligence, the petitioner must provide a “reasonable excuse” for failing to vacate the judgment at an earlier time. Airoom, 114 Ill. 2d at 222. In order to prevail, the petitioner must show that the entry of the final judgment or order was not known to the petitioner and could not have been discovered through the exercise of reasonable diligence. Juszczyk v. Flores, 334 Ill. App. 3d 122, 128 (1st Dist. 2002). Generally, when the petitioner has failed to act diligently the court will deny the petition to vacate the judgment. There are limited and extraordinary circumstances, however, where the court has ignored the diligence of the parties and granted the petition in the interest of preventing the unjust entry of a judgment and to do substantial justice between the parties. Coleman v. Caliendo, 361 Ill. App. 3d 850, 855-56 (1st Dist. 2005) While the first district, in R.M. Lucas Co. v. Peoples Gas Light & Coke Co., 2011 IL App (1st) 102955, ¶ 24, asserts that Vincent overruled the holding in Coleman, the Illinois Supreme Court’s recent decision in Warren County—as discussed more fully below—explains equitable considerations are appropriate in reviewing a section 2-1401 petition. Warren County, 2015 IL 117783, ¶ 51. A section 2-1401 petition, like any pleading, is not immune to opposition. As discussed briefly above, a section 2-1401 petition is procedurally like a complaint and is therefore subject to the same rules of civil procedure. Blazyk, 406 Ill. App. 3d at 207 (citing Vincent, 226 Ill. 2d at 15). Accordingly, a section 2-1401 petition is subject to both jurisdictional and substantive challenges. The petitioner is required to properly serve all parties with notice of the section 2-1401, pursuant to Supreme Court Rules — Continued on next page

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106 and 105. 735 ILCS 5/2-1401(b). Unless and until service is effectuated the court does not have personal jurisdiction over the respondent. Blazyk, 406 Ill. App. 3d at 207. The First District has noted an extremely narrow equitable exception that allows for service outside of the requirement of Supreme Court Rule 106. The exception provides for service of a section 2-1401 petition on a party’s attorney of record in the original proceeding when the original attorney is in court representing that same client in a matter related to the original judgment. Welfelt v. Schultz Transit Co., 144 Ill. App. 3d 767, 772 (1st Dist. 1986) (citing Public Taxi Service, Inc. v. Ayrton, 15 Ill. App. 3d 706, 712 (1st Dist. 1973)). The respondent must challenge the propriety of service at the first instance or it will be held to have waived any objection to personal jurisdiction. Welfelt, 144 Ill. App. 3d at 772. If a party appears and argues the merits of the petition that party is deemed to have waived any jurisdictional defect. Blazyk, 406 Ill. App. 3d at 207; Welfelt, 144 Ill. App. 3d at 772. The respondent to a section 2-1401 petition is also entitled to bring a substantive challenge seeking the dismissal of the petition under section 2-615 for a failure to state a claim or under section 2-619 based on some other affirmative matter, such as timeliness. Blazyk, 406 Ill. App. 3d at 207. The Illinois Supreme Court in Warren County clarified that the nature of the challenge presented in a 2-1401 petition will dictate the proper standard of review on appeal. Warren County, 2015 IL 117783, ¶ 31. Where the challenge to the original judgment is fact dependent and the petitioner must satisfy each of the elements by a preponderance of the evidence, the circuit court’s decision will be 34 | IDC QUARTERLY | First Quarter 2016

reviewed for an abuse of discretion. Id. ¶ 51. In the alternative, where the 2-1401 petition presents a purely legal challenge, then the circuit court’s decision should be reviewed de novo. Id. ¶ 47. Most notably, the Supreme Court in Warren County explained that generally speaking a section 2-1401 petition that raises a factdependent challenge must be resolved by considering the facts, circumstances, and equities of the underlying case. Id. ¶ 50. Equitable considerations are only inapplicable in the specific and limited context of a section 2-1401 petition that raises a purely legal issue. Id. ¶ 47.

wise final orders or judgments, keep the following in mind:

Vacate early and often: Attempt to vacate orders of default, default judgments, and dismissals for want of prosecution at the earliest possible juncture.



Save the Date: Diary the following: (1) the date of the expiration of the statute of limitations, the date that the year to re-file pursuant to section 13-217 expires; (2) the date of the entry of a final order or judgment; (3) the 30 day date noting the expiration of a right to relief under section 2-1301(e); and (4) the 2 year (minus one day) date from the entry of judgment (the date of the last opportunity to seek relief) to safely determine when the litigation is truly at its end.



Be Diligent: While litigating, do so diligently and create and maintain a record that may be needed later to support a petition to vacate a judgment or order.



Challenge Jurisdiction: In opposing a petition for relief under section 2-1401 challenge jurisdiction at the first possible instance. If a party appears and argues the merits of the petition, then jurisdiction is waived. Blazyk, 406 Ill. App. 3d at 207; Welfelt, 144 Ill. App. 3d at 772.

Special Considerations: Section 2-1401 does not apply to void orders or judgments. 735 ILCS 5/21401(f). As a result petitions brought to vacate an order or judgment on voidness grounds can be brought at any time and are not limited by the two year period under section 2-1401. Sarkissian, 201 Ill. 2d at 104. In the event that a case is dismissed for want of prosecution after the plaintiff has already taken advantage of its one voluntary dismissal and refiling, pursuant to sections 2-1009 and 13-217, that dismissal becomes a final order immediately upon entry and the 30 day period under 2-1301(e) begins to run. Jackson, 397 Ill. App. 3d at 618. During that 30 day period the plaintiff can move to vacate the dismissal for want of prosecution, thereby reinstating its claim. 735 ILCS 5/2-1301(e). After the 30 day period has lapsed the plaintiff can seek relief under section 2-1401. 735 ILCS 5/2-1401(a). Practice Pointers: As a practitioner seeking relief or opposing the grant of relief from other-

Yogi Berra also said that “You’ve got to be very careful if you don’t know where you are going, because you might not get there.” In navigating the Illinois Code of Civil Procedure, the same holds true.

Insurance Law Update Timothy R. Lessman SmithAmundsen LLC, Chicago

Cyber Coverage Does Not Extend to Unauthorized Text Messages Advertising Surgical Services In the relatively undefined realm of cyber coverage interpretation, the Illinois Appellate Court, First District, held that a cyber claims endorsement to a professional liability policy that provided coverage for a “privacy wrongful act” did not extend to allegations of violations of the Telephone Consumer Protection Act (TCPA) or the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act). In Doctors Direct Insurance, Inc. v. Bochenek, 2015 IL App (1st) 142919, the court found that Doctors Direct Insurance, Inc. (Doctors Direct) had no duty to defend or indemnify under a medical professional liability insurance policy it issued to its insured, McAdoo Cosmetic Surgery (McAdoo). McAdoo was sued in a federal class action lawsuit filed by David Bochenek (Bochenek), alleging that McAdoo violated the TCPA and Consumer Fraud Act by sending unsolicited text messages advertising cosmetic surgery procedures that were allegedly part of a “mass broadcasting” (Bochenek suit). Doctors Direct, 2015 IL App (1st) 142919, ¶¶ 2, 3. The Doctors Direct policy included a cyber claims endorsement that covered, in pertinent part, “costs protected parties become legally obligated to pay as a result of a Cyber Claim for any Network Security Wrongful Act or Privacy Wrongful Act. . . .” Id. ¶ 5. The endorsement defined “cyber claim” as “a demand for money or services as compensation, such as a claim letter,

notice of attorney’s lien, or a civil suit, administrative proceeding, arbitration or mediation seeking to compel such compensation in which protected parties must participate. Id. ¶ 6. The endorsement defined a “privacy wrongful act” as “any breach or violation of U.S. federal, state, or local statutes and regulations associated with the control and use of personally identifiable financial, credit or medical information, whether actual or alleged, but only if committed or allegedly committed by protected parties.” Id. McAdoo notified Doctors Direct of the Bochenek suit and asserted that Doctors Direct had a duty to defend and indemnify it based on the policy’s cyber claims endorsement and the definition of a “privacy wrongful act.” Id. ¶ 7. Doctors Direct filed a complaint for declaratory relief in the Circuit Court of Cook County, contending that it had no duty to defend or indemnify McAdoo. Id. ¶ 8. Soon thereafter, McAdoo filed for bankruptcy and the bankruptcy court limited Bochenek’s recovery against McAdoo to the proceeds of the Doctors Direct policy. Id. ¶ 9. Doctors Direct filed a motion for judgment on the pleadings, arguing that the Bochenek suit was not covered under its policy because Bochenek’s claims under the TCPA and the Consumer Fraud Act were not based on a “privacy wrongful act” because neither statute was applied or associated with the control or use of personally identifiable financial, credit or medical information. Id. ¶ 11.

Bochenek, who argued in favor of coverage following McAdoo’s bankruptcy, responded that the cyber claims endorsement was ambiguous as to whether the “breach or violation” of a statute must be associated with the control and use of personally identifiable information. Id. ¶ 12. Bochenek further argued that both the particular conduct at issue and the laws violated were nevertheless associated with the control and use of such personally identifiable information. Id. Bochenek also pointed to an amended pleading filed in the Bochenek suit, in which he alleged that McAdoo obtained a list containing personally identifiable information of customers of a spa without consent and used that information to send the spam text messages. Id. ¶ 14. The trial court granted Doctors Direct’s motion for judgment on the pleadings, finding that under a plain reading of the “privacy wrongful act” provision in the policy, the phrase “associated with the control and use of personally — Continued on next page

About the Author Timothy R. Lessman is an attorney in Smith Amundsen’s Chicago office. Mr. Lessman has experience representing domestic and international insurers, and reinsurers in matters ranging from claims management to coverage dispute resolution via litigation, arbitration, and mediation. He has handled complex insurance and reinsurance coverage disputes involving both domestic and international policy forms. Additionally, he has experience with a variety of claims, including mass torts, environmental liability, product liability, cyber liability, employers and professional liability, government entity liability, and construction defect. Prior to his legal career, Mr. Lessman worked as a legislative aide in both the Colorado House of Representatives and the British House of Commons.

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identifiable financial, credit or medical information” qualified the phrase immediately preceding it, “of U.S. federal statute or state or local regulation.” Id. ¶ 17. The court further found that the TCPA was intended to protect consumers from certain forms of undesirable communication, that nothing in the plain language of the statute indicated an intent to protect against the compilation of consumers’ names and telephone numbers for use in telemarketing, and that the TCPA was not associated with the control and use of personally identifiable financial, credit, or medical information as was required by the policy. Id. ¶ 18. Applying the same rationale, the court found that the policy did not cover alleged violations of the Consumer Fraud Act. Id. ¶ 20. The court further found that the amended complaint in the Bochenek suit did not affect the motion for judgment on the pleadings. Id. ¶ 17. Analysis On appeal, Bochenek contended that his claim under the TCPA alleged a “privacy wrongful act” because the phrase “associated with” in its definition was expansive, and the conduct at issue, along with the statutes regulating and prohibiting the conduct, are necessarily “associated with” the control and use of personally identifiable financial, credit, or medical information. Bochenek further contended that the statute need not make direct reference to expressly state an intent to regulate the use of such information and that the policy language was ambiguous. Id. ¶ 21. Rejecting these arguments, the appellate court determined that the TCPA focused only on certain types of telephone calls; it did not address how a caller might control or use personally 36 | IDC QUARTERLY | First Quarter 2016

The takeaway from the Bochenek decision is that insureds must know the scope of coverage offered by their available policies. identifiable information and was thus not associated with the use of such information. Id. ¶ 29. The court similarly found that the plain language of the Consumer Fraud Act focused on unfair methods of competition and unfair or deceptive acts or practices, not personally identifiable information. Id. ¶ 35. The court further held that the Consumer Fraud Act’s reference to other state statutes involving telephone and e-mail communications in section 2Z that, if violated, also violated the Consumer Fraud Act, suffered from the same problem as the TCPA in that they focused on the act of calling or reaching someone, as opposed to the control or use of personally identifiable information. Id. ¶ 36. Although the court noted that the Act referenced another state statute that did involve improper use of “personal information” (the Personal Information Protection Act—815 ILCS 530/1 et seq.), such reference could not trigger coverage because the complaints filed in the Bochenek suit did not mention the type of information the Personal Information Protection Act protected, let alone the statute itself. Id. ¶ 38. Bochenek also challenged the circuit court’s ruling that the collection of names and telephone numbers of customers of a spa implicated the control and use of personally identifiable information. Id. ¶ 39. Bochenek asserted that “being placed on a list of prospects for cosmetic surgery conveys medical information about people on the list, as well as financial information, since the services are costly.” Id.

The court disagreed, finding that there was no information in the original complaint about how the telephone numbers were compiled. The court also found that interpreting the term “personally identifiable medical information” to include the list would be too broad because it would extend to any information in a doctor’s possession. Id. ¶ 42. As a result, the court upheld circuit court’s granting of Doctors Direct’s motion for judgment on the pleadings and found that the allegations in the Bochenek suit did not even potentially fall within the coverage of the Doctors Direct policy, and thus Doctors Direct did not have a duty to defend or indemnify McAdoo in the suit. Id. ¶ 45. Conclusion The Bochenek decision serves to illustrate the scope of cyber coverage. Although the decision only interpreted a cyber claims endorsement as opposed to a full cyber policy, the coverage offered under cyber policies typically will only extend to the disclosure of personally identifiable information and its attendant consequences. Indeed, many cyber policies exclude claims brought under the TCPA or deceptive business practice statutes. The takeaway from the Bochenek decision is that insureds must know the scope of coverage offered by their available policies. Trying to shoehorn a “square-peg” claim into a “round-hole” policy will likely fail.

Property Insurance Law Catherine A. Cooke Robbins, Salomon & Patt, Ltd., Chicago

Appellate Court Analysis

Waiver of Liability Does Not Bar Suit for Injuries at Health Club Resulting From Leaking Roof In today’s litigious society, most people are familiar with signing waivers of liability. Whether it is upon joining a new gym, participating in an intramural sports league, or when purchasing a lift ticket to go skiing, many individuals, including lawyers, simply sign on the dotted line without reading what claims or rights they are actually waiving or at least purporting to waive. A recent Illinois Appellate Court, First District case, Offord v. Fitness International, LLC, 2015 IL App (1st) 150879, demonstrates that a form waiver of liability provision might not be as inclusive as you think it is. Underlying Facts and Trial Court Proceedings On July 24, 2014, the plaintiff sued Fitness International, LLC and several other defendants after he sustained a knee injury while playing basketball at an LA Fitness health club. Offord, 2015 IL App (1st) 150879, ¶ 5. The plaintiff alleged that he slipped on water accumulation on a basketball floor that was the result of a “leaking roof and/or skylight and/or window.” Id. Fitness International filed a section 2-619(a)(9) motion to dismiss the plaintiff’s negligence claim and asserted that the claim was barred by a guest waiver titled “Assumption of Risk and Waiver of Liability” that the plaintiff had allegedly signed. Id. The waiver form was attached to the motion to dismiss and stated, in

relevant part, that the signer released, waived, and covenanted not to sue Fitness International, LLC for any claims or liability arising from the use of LA Fitness’ facilities, services, equipment or premises. Id. The plaintiff argued that the signature on the form did not appear to be his and further alleged that encountering water on the gym floor was not conduct the parties intended to fall within the scope of the waiver. Id. ¶ 9. The trial court held a hearing on the motion to dismiss on December 15, 2014; however, because no transcript of the hearing appeared in the record, the parties submitted an agreed statement of facts signed by both parties’ attorneys. According to the agreed statement of facts, the plaintiff testified that he was injured on the basketball court when he slipped on “‘what he thought was water,” and that someone else told him that the “roof was leaking.” Id. ¶ 10. The plaintiff argued that slipping on water from a leaking roof was not reasonably foreseeable. The trial court found that slipping on a basketball court was reasonably foreseeable and granted Fitness International’s motion to dismiss the negligence count. Id. ¶ 13. After the trial court denied the plaintiff’s motion to reconsider and found no just reason to delay appeal pursuant to Illinois Supreme Court Rule 304(a), the plaintiff appealed. Id. ¶ 3.

On appeal, the plaintiff first argued that whether he signed the waiver form was a question of fact which precluded the dismissal of a claim on a motion to dismiss. Id. ¶ 15. In the alternative, the plaintiff argued that the trial court erred because the injury suffered was not one contemplated by the waiver. Id. ¶ 18. The appellate court agreed. Id. In Illinois, parties may contract to avoid liability for their own negligence, however, exculpatory clauses “must contain clear, explicit, and unequivocal language referencing the type of activity, circumstance, or situation that it encompasses and for which the plaintiff agrees to relieve the defendant from a duty of care.” Id. ¶ 20; Platt v Gateway Int’l Motorsports Corp., 351 Ill. App. 3d 326, 330 (5th Dist. 2004). While parties need not contemplate the precise cause of the injury at the time the contract is formed, the defendant “must put the plaintiff on notice of the range of dangers for which the plaintiff assumes the risk of injury.” Offord, 2015 IL App (1st) 150879, ¶ 20 (quoting Hawkins v. Capital Fitness, Inc., 2015 IL App (1st) 133716, ¶ 19). — Continued on next page

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.

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Dissenting Opinion

In Illinois, parties may contract to avoid liability for their own negligence, however, exculpatory clauses “must contain clear, explicit, and unequivocal language referencing the type of activity, circumstance, or situation that it encompasses and for which the plaintiff agrees to relieve the defendant from a duty of care.”

Was the Danger of Slipping on Water from a Roof Leak Reasonably Foreseeable? Most importantly, the foreseeability of the specific danger defines the scope of the exculpatory clause. Offord, 2015 IL App (1st) 150879, ¶ 20. Phrased differently, “[i]t should only appear that the injury falls within the scope of possible dangers ordinarily accompanying the activity and, thus, reasonably contemplated by the plaintiff.” Id. quoting Platt, 351 Ill. App. 3d at 331. Exculpatory clauses are strictly construed against the benefitting party because they are not favored by courts. Hawkins, 2015 IL App (1st) 133716, ¶ 19. After reviewing the facts in the record, the appellate court held that the trial court erred when it dismissed the plaintiff’s negligence claim. While the exculpatory clause was extremely broad, providing that the plaintiff released Fitness International from liability for all claims arising from his use of LA Fitness’ “facilities, services, equipment or premises,” it did not make any mention of shielding LA Fitness from liability if the building itself was defective. Offord, 2015 IL (1st) 150879, ¶ 21. The appellate court stated that the waiver clause was typical of gym facilities and was intended 38 | IDC QUARTERLY | First Quarter 2016

to cover incidents where guests are injured using equipment such as falling off a treadmill or dropping weights on their feet, and those types of incidents are foreseeable both by guests and the facility. Id. However, construing all facts in the light most favorable to the plaintiff, the appellate court concluded that an injury caused by a leak from a defective roof was not foreseeable. Id. The appellate court distinguished the alleged cause of the plaintiff’s injury from an injury caused by other sources of liquid or condensation on a basketball court, such as sweat, spilled beverages, or cleaning products. Id. Likening the case to other cases where plaintiffs in health clubs suffered injuries that the courts found were not reasonably foreseeable, the appellate court reiterated that the plaintiff could not have foreseen that he would be injured on the basketball court due to a leaking gym roof. Id. at ¶ 22. Ultimately, the appellate court found that the plaintiff had at least raised a sufficient fact question to defeat a motion to dismiss and reversed and remanded. Id. ¶ 23.

One justice dissented and disagreed that alleged water on the basketball court was not within the scope of possible dangers covered by the release. The dissenting justice focused on the broad language in the release covering claims arising from the use of LA Fitness’ “facilities, services, equipment or premises” and stated that he believed the majority’s distinction between water on the floor from an alleged leaking skylight and water from a leaking water bottle was too tenuous of a distinction to draw. Id. ¶¶ 28-29. Practice Tips No petition for rehearing or leave to appeal to the Illinois Supreme Court was filed, presumably because a review of the Cook County Circuit Court docket reveals the case settled shortly after the appellate court issued its opinion. Thus, the decision serves as a reminder to counsel to think carefully about the scope of potential sources of injury when drafting releases or waivers of liability for property owners. The Offord decision and cases cited therein demonstrate that overly broad exculpatory clauses may not be deemed to cover claims arising from sources not identified in the release because they will no be deemed to have been reasonably foreseeable by the parties.

Medical Malpractice Update Dede K. Zupanci and Zeke N. Katz HeplerBroom LLC, Edwardsville

Electronic Health Records and E-Discovery: A Primer for Defense Counsel We’ve come a long way, baby, but in some regards, it’s just like starting over. The use of paper as a primary means of documentation and communication continues to decline. The transition from paper to electronic documents has found its way into the medical and legal fields as well. During the written discovery phase of a medical malpractice lawsuit, plaintiff’s attorney will request the patient’s complete medical record, including physician orders, progress notes, nursing documentation, and test results. Terrance K. Byrne, The Federal Rules of Civil Procedure, Electronic Health Records, and the Challenge of Electronic Discovery, 28 J.L. & Health 379, 381 (2015). It is likely that the medical records relevant to litigation today will be maintained by the provider in electronic format, known as electronic health records (EHR). The evolution of digital health records is fueled by relatively new federal statutes and state court rules. Lawyers now must learn how to navigate, use,

and produce the EHR. This article seeks to familiarize defense counsel with the general principles, as well as some of the nuances, that arise during this transition from the production of hard copy to electronic records. The Affordable Care Act, the American Recovery and Reinvestment Act and the Health Information Technology for Economic and Clinical Health Act On February 17, 2009, the Health Information Technology for Economic and Clinical Health (HITECH) Act was enacted under the American Recovery and Reinvestment Act of 2009. Pub. L. No. 111-5, § 13101, 123 Stat. 115 (2009); also see 21 Ill. Prac., The Law of Medical Practice in Illinois § 13:14 (3d ed.). HITECH was passed to promote and accelerate the use and development of EHRs by health care providers in order to improve the quality and efficiency of health care. Anna M. Bryan, et al.,

It is likely that the medical records relevant to litigation today will be maintained by the provider in electronic format, known as electronic health records (EHR). Lawyers now must learn how to navigate, use, and produce the EHR.

Electronic Discovery and Healthcare Litigation: Government Influence on Conversion to Electronic Health Records, and How It Has and Will Continue to Impact the Discovery Process, 23 Health Law. 1, at 3 (2010). This expansion and innovation is accomplished via economic incentives and penalties that encourage health care providers to utilize EHRs, including Medicare and Medicaid bonus payments or reimbursements to those health care providers that can show a “meaningful use” of EHRs. Anne M. Fulton-Cavett, The Expanding Use of Electronic Health Records: Consulting Federal E-Discovery Rules and Case Law as Guides for State Litigation, 40The Sum Brief 46, at 47 (2011). As a result of the HITECH Act’s incentives and penalties, health care providers have increased their use of EHRs. Fulton-Cavett, Expanding Use, — Continued on next page

About the Authors Dede K. Zupanci is a partner in the Edwardsville office of HeplerBroom LLC. Her practice focuses on the defense of medical malpractice actions, as well as other healthcare litigation. She is a 2002 graduate of Saint Louis University School of Law. Zeke N. Katz is an associate attorney at HeplerBroom 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 Illinois. 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.

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Medical Malpractice Update | continued

supra, at 47. This increased use of EHRs subsequently exposes health care providers to potential complications and challenges that coincide with e-discovery and the production of electronic data in medical malpractice litigation. Id. As the number of health care providers using EHRs increases further, there will be a resulting increase in e-discovery and document production requests with respect to EHRs. Id. Illinois Supreme Court Rules Addressing E-Discovery Illinois Supreme Court Rules 201(b) (1) and 201(b)(4) have been amended to include electronically stored information (ESI) within the scope of potentially discoverable material. Rule 201(b)(4) defines ESI as “any writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations in any medium from which [ESI] can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” Ill. S. Ct. R. 201(b)(4) (eff. July 1, 2014). A patient’s EHR fits within this definition of ESI, and is therefore subject to document production. Rule 214(a) permits the written request for production of documents including ESI, and Rule 214(b) states that “if a request does not specify a form for producing [ESI], a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Ill. S. Ct. R. 214(a)-(b) (eff. July 1, 2014). Rule 201(c) incorporates proportionality to prevent the possible deluge of data that may be responsive to an overly-broad document production request for ESI. Ill. S. Ct. R. 201(c). Rule 201(c) prevents a party’s potential abuse of the discovery process by permitting 40 | IDC QUARTERLY | First Quarter 2016

the court to weigh the encumbrance and cost of discovery of ESI against the ESI’s benefits and significance to the overall litigation by providing that “the court may determine whether the likely burden or expense of the proposed discovery, including [ESI], outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues.” Ill. S. Ct. R. 201(c)(3). Production of ESI in response to a discovery request may not be physically voluminous, especially when compared to the current reality of reams of paper stuffed inside stacks of bankers’ boxes. However, ESI has the capacity to encompass enormous amounts of data well beyond that which can be produced in physical format and for which document review would be tremendously time consuming. In anticipation of the prospect of an overly-burdensome production of ESI, Rule 214(c) permits a party to object to another party’s production request “on the basis that the burden or expense of producing the requested materials would be disproportionate to the likely benefit in light of the factors set out in Rule 201(c)(3).” Ill. S. Ct. R. 214(c). Practice Pointers for Defense Counsel Regarding E-Discovery and EHRs Document production requests for EHRs in medical malpractice litigation have become fairly routine. It will be paramount for defense counsel representing health care providers to understand how EHRs, as opposed to hard copy medical records, will impact the health care provider’s responses to a plaintiff’s request for production of health records.

Lawyers must educate themselves regarding the data that can be obtained from a health care provider’s EHR system, as well as any other electronic data systems that the health care provider may have in place. Fulton-Cavett, Expanding Use, supra, at 51. As e-discovery rules and case law evolve, defense counsel for health care providers must adjust and adapt their best practices regarding the production, as well as preservation, of EHRs. Id. They must also be cognizant of those health care providers’ various policies and procedures that dictate how patient information is entered, transmitted and retained. Lawyers should have a basic comprehension of the construction and layout of a health care provider’s EHR system in order to suitably respond to a document production request, as well as to fulfill any document preservation obligations, in a medical malpractice lawsuit. Id., at 48. They “must be knowledgeable about the content, features, and functionality of those [EHR] systems.” Id. Defense counsel need not be experts in data systems technology, and in fact may need to outsource additional technology expertise during the medical malpractice litigation either in response to contentions surrounding document production, or for expert witnesses to be utilized at trial. Id. “Identifying and understanding a provider’s EHR system may also require counsel to obtain input from records management, health information, and information technology personnel.” Id. at 52. A practitioner’s essential understanding of EHRs can be distilled to knowledge of (1) how and where the EHR data is stored, (2) how that EHR data may be altered, and (3) how or what steps must be taken for that EHR data to be preserved. Id.

Potential Issues Stemming from Production of EHRs It is often the case that a health care provider maintains various portions of a patient’s EHR in different formats or even in different electronic data systems. For example, an EHR may be comprised of scanned pages, of both handwritten and typed data, as well as data that was created in an entirely electronic format. Bryan, Electronic Discovery, supra, at 3. This combination of scanned and electronically entered data may present challenges to document production if plaintiff’s counsel contends that the patient’s EHR was ever altered or amended during her care and treatment. Id. When records are scanned into the EHR system, it may be difficult to determine whether those records were ever altered or amended, and if so, when those alterations or amendments took place. Id. Also, in some instances hard copy records are destroyed after they are entered into the EHR system. Id. In contrast, the portions of a patient’s EHR that have been entered electronically are monitored within the EHR system with respect to who entered the data, when and where that data was entered, and whether that data was ever amended or altered. Id. This additional information is commonly referred to as metadata, and will be addressed below. Another potential challenge faced by a lawyer when producing a patient’s EHR is that a single health care provider may operate a variety of electronic data systems, with data from more than one of those systems being potentially responsive to a plaintiff’s request for a complete EHR. For example, there may be separate programs and systems used to access “medical records, radiology records, human resource information, billing information, emails, garage access cards,

When records are scanned into the EHR system, it may be difficult to determine whether those records were ever altered or amended [...] closed or locked unit access card systems and ‘intranets.’” Id., at 4. Each of those various data systems may have different levels of compatibility. When responding to a production request, defense counsel must have a basic understanding of the number of electronic data systems that a health care provider may implement as part of a patient’s EHR, as well as how those systems interact. Further adding to the challenge of producing electronic data from a variety of platforms within a single health care provider is the reality that the staff of a health care provider, whether they are physicians, nurses or anyone else involved with a patient’s care and treatment, may use personal electronic devices to record or communicate patient information. Id. The data from these personal electronic devices may qualify as part of the patient’s EHR and is therefore discoverable. Id. Locating this data, as well as ensuring its preservation, is a daunting task for any practitioner facing the request for production of an EHR during medical malpractice litigation. Id. Metadata must also be recognized as part of an EHR with respect to potential document or data production. Commands and modifications that are executed on a computer, or any other electronic device, are tracked and recorded as metadata. Id. at 3. HITECH requires that a health care provider’s EHR system “[r]ecord actions related to electronic health information. The date, time, patient identification, and user identification must be recorded when electronic health information is

created, modified, deleted, or printed; and an indication of which actions(s) occurred must also be recorded.” Id., at 3 (citing Department of Health and Human Services, Interim Final Rule, 45 C.F.R. Part 170 (Jan. 13, 2010) (codified at 45 C.F.R. § 170.210(e) (July 28, 2010)). This metadata is not often readily available via the basic user interface of an EHR system, and instead must be specifically retrieved, sometimes with additional software. Defense counsel should understand the basic parameters, purpose, and function of metadata as part of the health care provider’s comprehensive EHR system. Conclusion Defense counsel for health care providers will need to be familiar with their clients’ EHR systems in order to accurately and completely respond to discovery requests. EHR systems and e-discovery are evolving and defense counsel for health care providers must continue to keep up to date on changes to rules or statutes that impact health care providers’ responsibilities surrounding the production of EHRs in response to discovery requests. Fulton-Cavett, Expanding Use, supra, at 53. As these rules and statutes become the subject of future litigation, case law regarding production of EHRs in the medical malpractice context will also inevitably increase, and provide guidelines for how these rules and statutes are practically interpreted in Illinois courts. Id. First Quarter 2016 | IDC QUARTERLY | 41

Practice Guideline Charles P. Rantis Johnson & Bell, Ltd., Chicago

Expert Discovery: A Primer on Depositions of Liability Experts in Non-Medical Cases The key to winning at trial is to thoroughly and comprehensively prepare your case. Oftentimes, a case will be won or lost by the jury appeal and the effectiveness of the trial testimony of the expert witnesses. Preparation for cross-examination of the plaintiff’s liability expert at trial begins after formal disclosure of the identity, opinions, and bases for opinions of the plaintiff’s expert. After defense counsel has researched prior testimony of, and publications authored by, the plaintiff’s expert, preparation for the deposition of the plaintiff’s expert is crucial for laying the foundation for an effective cross-examination of the plaintiff’s expert at trial. Before taking any expert deposition, a defense attorney must have a comprehensive understanding of the file. The lawyer must know the facts of the case cold. Nothing is worse than having the expert testify about facts from his or her review of the case that the lawyer did not know or cannot disprove. Likewise, the attorney must thoroughly understand the subject matter of the case. For example, in a construction case, the attorney must fully understand all of the normal means and methods typically used, and the safety precautions that are supposed to be taken. In a products liability case, the interrogating attorney must have a thorough understanding of the product and the safety issues in question. The attorney must know and understand the significance of all of the prior deposition testimony. The attorney should also ensure that any necessary investigation has been completed, such as an inspection of the product or an inspection of the accident scene. This outline provides a structural framework for any deposition of a liability expert in a personal injury or wrongful death case. In addition to laying the foundation for cross-examination at trial, an effective deposition of the plaintiff’s expert may be used to support motions in limine, a motion to bar the expert, or a motion to bar certain opinions of the expert. The following outline should be tailored for your particular case. The key is to prepare, prepare, and prepare more.

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I. Prior to the Expert Witness Phase of the Case A. Have a comprehensive understanding of your file 1. Know the facts of your case cold. 2. Develop a thorough understanding of the subject matter involved in your case. 3. Know and understand the significance of all deposition testimony. 4. Complete all investigations needed to depose opposing expert, such as an inspection of product, or an inspection of accident scene. B. Formulate an analytical framework of the case 1. Develop an exhaustive list of possible accident scenarios and test each scenario against the facts of the case and common sense. 2. Develop and formulate theories of defense. a. What is the theme of your defense? b. What is the story that you will tell the jury? c. How does expert testimony impact the theories of the parties?

About the Author Charles P. Rantis is a shareholder at Johnson & Bell, Ltd. where he specializes in product liability, construction negligence, and other personal injury and wrongful death cases.

3. Assess the strengths and weaknesses of the plaintiff’s case compared to your defense theory. C. Propound written discovery to obtain information from and about the opposing expert 1. Propound Rule 213(f) expert witness interrogatories in accordance with your jurisdiction’s discovery rules. 2. Propound a Rule 214 production request for the expert’s complete and entire file. The Rule 214 production request should ask for the following documents: a. Reports, including any draft reports; b. Notes and memoranda; c. Diagrams, charts, tables and graphs; d. Photographs, videos and demonstrative exhibits; e. Correspondence, e-mails, and other written communications between the accident reconstruction expert and the plaintiff’s attorneys; f. Billing statements and invoices; g. Retention agreement; h. Federal Rule 26 list of other prior testimony; i. Standards, safety codes, regulations, recommended practices and statutes; j. Deposition summaries, abstracts or digests; k. Inventory logs, and lists of materials received and generated in the case; l. Literature, articles, research and scholarly papers; m. Curriculum Vitae; n. Calculations, measurements and computer simulations; o. Time, distance and speed analysis; p. Inspection photos and videos taken at accident scene or of the vehicles involved; q. Experiments and testing notes, videos and protocols; r. Accident reconstruction analysis; and s. Interview notes of witnesses or the plaintiff. 3. Attach a rider to your deposition notice seeking the expert’s entire file. 4. Discuss with the client ahead of time whether or not the discovery deposition of the opposing expert should be videotaped.



a. Use the videotape at a mock trial if warranted. b. Visual effect of the witness’s reaction during crossexamination to be used at trial to present to the jury.

5. In federal court, read and familiarize yourself with Rule 26 of the Federal Rules of Civil Procedure. 6. Propound Rule 26 and 34 production requests seeking the expert’s complete and entire file. 7. Obtain a copy of the opposing expert’s Federal Rule 26 list of prior testimony regardless of whether the case is pending in state court or federal court. D. Retention of a defense expert 1. Retain your own liability expert. 2. Provide your liability expert with discovery and investigative materials as the case progresses. 3. Consult with your own expert and use your own expert as a source of information to further your understanding of the case and the subject matter involved. E. Research the opposing expert 1. Consult your firm’s expert witness bank. 2. Consult with other defense attorneys. 3. Call the attorneys listed in the opposing expert’s Rule 26 listing of other testimony for the past four years. 4. Obtain information and prior transcripts from other sources or expert witness banks such as DRI, ALFA or IDC searches. 5. Consult with the partner with whom you are working, or other partners, or senior associates with whom you feel comfortable discussing your game plan for the opposing expert’s deposition. 6. Consider using a source such as Dun & Bradstreet.

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Practice Guideline | continued

F. Understand admissibility standards for expert testimony 1. Ensure your familiarity with the Illinois Rules of Evidence (eff. Jan. 1, 2011). In particular, read Rules 702, 703, and 705. 2. Illinois Rule 702 follows the Frye test. 3. In Illinois state courts, the Frye General Acceptance test is the standard to determine the admissibility of scientific evidence in state court. The Frye test provides that an expert’s opinion based on a scientific technique is admissible only where the technique is generally accepted as reliable in the relevant scientific community. In re Commitment of Simons, 213 Ill. 2d 523, 529 (2004); see also Donaldson v. Central Ill. Pub. Service Co., 199 Ill. 2d 63, 77 (2002) (abrogated on other grounds by In re Commitment of Simons, 213 Ill. 2d at 532). 4. “General acceptance” does not concern the ultimate conclusion of a scientific expert. Rather, the proper focus of the test is on the underlying methodology used to generate the conclusion. Donaldson, 199 Ill. 2d at 77-78. Keep in mind the following points: a. “General acceptance” does not concern the ultimate conclusion of an expert; b. Proper focus of the general acceptance test is on the underlying methodology used to generate the conclusion; c. If the underlying methodology used to generate the opinion is not new or novel and is reasonably relied upon by the experts in the field, the opinion is admissible irrespective of the conclusion reached by the expert; and d. The role of the trial judge is to decide the “general acceptance” of the methodology or technique. 5. In federal court opinions the Frye test has been rejected; federal courts follow the Daubert test. Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); also see Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). 6. Under the Daubert test and Federal Rule of Evidence 702, the court employs a flexible approach to determining the

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admissibility of expert testimony and should consider factors such as: a. whether the expert’s technique can be or has been tested; b. whether the technology or theory has been subject to peer review and publication; c. the known or potential rate of error of the technique or theory when applied; d. the existence and maintenance of standards and controls; and e. whether the technique or theory has been generally accepted in the scientific community. Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 893-94 (7th Cir. 2011) (discussing the Daubert factors). G. Establish goals for the discovery deposition of the opposing expert

1. Determine and explore all opinions and bases for those opinions. 2. Elicit information which can be used for impeachment at trial. 3. Elicit information to support motions in limine. 4. Prove your defense theory or facts favorable to you through the opposing expert. 5. Elicit information to support a motion to bar trial testimony of unqualified experts. 6. Assess the strengths and weaknesses of, and the support in the factual record for, the plaintiff’s expert’s opinions and theories of the case.

II. Preparation for Expert’s Deposition A. Review and analyze written discovery 1. Review and understand answers to Rule 213(f)(3) interrogatories. 2. Be sure to outline and list all of the opinions disclosed as well as the bases for the opinions disclosed when preparing for the deposition.

3. Review and understand the expert’s Rule 26 report. 4. Make sure you have the expert’s complete and entire file when preparing for deposition. 5. Abstract, outline and index the opposing expert’s complete and entire file for easy reference during the deposition. This also demonstrates preparation and confidence to your opponent and his expert. B. Review transcripts from prior testimony given by expert in other cases C. Prepare a specific outline

8. Ask leading questions to maintain control over the deposition. 9. Be sure that your questions are short, concise and to the point. B. Area of expertise 1. Have the expert identify the specific area of safety, engineering or other technical or scientific areas in which the expert is being offered as an expert witness. 2. Limit the areas of the expert’s claimed areas of expertise by asking whether he holds himself out to be an expert in the specific areas of the subject matter involved.

1. But for the discovery deposition of each expert always ask follow up questions at deposition. 2. Work vertically and horizontally down your outline.

III. Deposing Opposing Liability Expert Witness A. Preliminary issues 1. Be sure to reach an agreement regarding the three-hour rule. 2. Be yourself by developing your own style and methods for deposing liability expert witnesses. 3. Be courteous but confident; have a positive mental attitude. 4. Intimidation factor: do not let either the opposing attorney or opposing expert intimidate you in any respect. 5. Maintain control of the deposition; take your time and ask thoughtful and deliberate questions. 6. If you anticipate a problem opponent or a problem expert, then be prepared with the judge’s phone number, and do not be afraid to call the judge. 7. Never let technical issues or expert’s technical jargon go without an explanation so that you understand what the opposing expert is saying.

C. Expert’s educational background 1. 2. 3. 4.

Academic degrees. Where the expert went to school. Has the expert ever taught at any college or university. Has the expert ever taken any courses which apply or relate to the subject matter of the case, and if so, have the expert explain what and how. D. Employment history

1. 2. 3. 4. 5. 6.

Name of employers. Job titles. Duration with the company. Job duties and responsibilities. Reasons for leaving. Obtain a detailed explanation as to how experience in that job or position provides the expert with experience and expertise necessary to render opinions in this case. E. Professional societies or affiliations

1. Name of the organization.

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Practice Guideline | continued

2. 3. 4. 5.

When did the witness become a member? What were the requirements of membership? What offices has the witness held? What interface or relationship has the organization had with the subject matter of the particular case?

6. Has the witness served on any committees? 7. Has the organization published any standards or recommended practices relating to the subject matter of the case? 8. Has the witness ever given any presentations to this organization? 9. Request details as to what the expert did during his tenure with these professional organizations or societies. F. Publications

1. Has the expert published any articles or papers which are germane to the expert’s work in this case? 2. Was the publication peer reviewed, and by whom? 3. Were there any revisions to the paper from the peer review process? 4. Is the expert familiar with any literature expressing views or opinions contrary to the expert’s views expressed in his publication? G. Licensing and certifications 1. Is the expert a licensed professional engineer in the state of Illinois or in any other state? 2. Find out whether the witness’s profession is licensed or regulated. 3. When was the license or certificate acquired? 4. How was the license or certificate acquired, for example, was it acquired through testing, experience and work history or by the payment of membership dues? 5. Was the license or certificate ever suspended, revoked or denied? 46 | IDC QUARTERLY | First Quarter 2016

H. Industrial experience and background with subject matter of case

1. By way of example in a construction case, was the witness ever employed by OSHA or has the expert ever worked in the trades? 2. In a product liability case, has the witness ever been employed by or consulted for any company which designed the same or similar products or components? 3. Has the expert ever designed or participated in the design of the product at issue? 4. Has the expert ever designed a product that has been sold in the market place 5. Is the expert’s product in compliance with industry standards? 6. In great detail, elicit testimony creating an exhaustive list of information detailing the expert’s experience, or lack thereof, with the subject matter of the case. I. Litigation experience A. Establish that expert is a professional witness 1. Total number of cases in which expert has consulted for during his or her professional career or in a given time frame. 2. Determine the percentage for plaintiffs. 3. Determine the percentage for defendants. 4. Determine the number of depositions given. 5. Determine the number of times expert has testified at trial. 6. Determine whether the expert’s testimony has ever been barred for any reason. 7. Fee schedule and fee arrangement. 8. Amount of money earned through litigation or forensic activities. 9. Percentage of income earned from forensic or litigation activities.

10. Determine whether the expert has testified for or against your client in the past. 11. Determine whether the expert has testified for or against the law firms involved in the case. 12. Familiarize yourself with the case law concerning the need to establish the bias of an opposing expert: a. Trower v. Jones, 121 Ill. 2d 211, 218 (1988) (holding that it was proper to inquire as to how much the expert was earning annually from services relating to rendering expert testimony and there was no impropriety in inquiring into such income for the two years immediately preceding trial). b. Sears v. Rutishauser, 102 Ill. 2d 402, 411 (1984) (verdict reversed due to trial judge’s error in barring cross-examination of expert regarding number and frequency of patient referrals from plaintiff’s counsel). c. Shaheen v. Advantage Moving & Storage, Inc., 369 Ill. App. 3d 535, 544 (1st Dist. 2006) (after an expert’s bias was attacked on cross-examination, trial court properly allowed rehabilitation by questions about whether the expert had been previously retained by the opposing counsel). d. New v. Pace Suburban Bus Serv., 398 Ill. App. 3d 371, 385-88 (1st Dist. 2010) (appellate court affirmed trial court’s discretion in granting motion for sanctions, fees and costs when expert failed expert to produce his tax documents, and attorney failed to notify the opponent about the expert’s refusal to cooperate and produce tax documents). e. Washington v. Yen, 215 Ill. App. 3d 797, 799-800 (1st Dist. 1991) (verdict reversed because of the expert’s refusal to answer questions about his financial interest in the case). 13. “A thru Z (soup-to-nuts)” cross-examination: inquire about the number of different types of cases in which the expert has testified in the past. For example, in a products liability case, the greater number of different types of products in which the expert has offered opinions, the greater the likelihood that the expert has little to no expertise in a particular area and is nothing more than a professional witness. For each case, ask the following:



a. b. c. d. e. f.

Subject matter of the case; Subject matter of the testimony; For whom did the expert testify? What law firm retained the expert? Did the expert prepare a report; and Who assisted the expert in the preparation of the report?

J. Litigation experience with subject matter of case 1. Determine the number of cases in which the expert has been retained or consulted in the same or similar context. 2. Determine the number of cases in which the expert has testified in the same or similar context. K. Retention of opposing expert 1. Who retained the expert? 2. When was the expert retained? 3. What was the expert’s assignment, and what was the expert asked to do? 4. What materials were supplied by the plaintiff’s attorney to the expert? 5. When were materials supplied by plaintiff’s attorney to the expert? 6. Number of prior retentions by plaintiff’s law firm? 1. 2. 3. 4.

L. Expert’s work on the case Identify the contents of the expert’s file. What materials has the expert reviewed? How did the expert decide what he should review? What materials has the expert relied upon in formulating his opinions?

5. Who assisted the expert in formulating his opinions? For example, here there other experts that he or she relied upon, or were compilations or summaries provided by the plaintiff’s attorney. 6. What materials has the expert generated? — Continued on next page

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Practice Guideline | continued

7. 8. 9.

What research has the expert conducted? What literature has the expert reviewed? What testing has the expert undertaken or performed? a. What were the test conditions and parameters? b. Was the testing videotaped? c. Were the tests conducted in accordance with methodologies established by the industry standards?

10. What additional investigation has the expert conducted or requested to be done? 11. Try to construct the sequence or chronology of the work done. M. Written materials generated by expert 1. Reports and draft answers to expert witness interrogatories. 2. Request production of the earlier drafts of the expert’s report. 3. Notes. 4. Abstracts or summaries of depositions. 5. Correspondence with plaintiff’s attorney. 6. Has the expert discarded any written materials generated or reviewed? 7. Inspection photographs. 8. Measurements or calculations. 9. Videotapes. N. Discussions with plaintiff’s attorney 1. Did expert ask plaintiff’s attorney for additional information or materials? 2. Was it provided? 3. Did the expert recommend to the plaintiff’s attorney that additional investigation or materials needed to be consulted?

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4. Determine whether the expert is relying upon any information told to him by the plaintiff’s attorney. 5. Try to establish that the plaintiff’s attorney is determining what is relevant for the expert to review. 6. Is the plaintiff’s attorney serving as a filter, selecting what the expert should review? 7. Review of entire transcript or select pages. O. Understanding the facts of accident 1. Ask expert to provide a detailed explanation as to what his understanding is of what happened at the time of the incident. 2. Determine the sources of that information. 3. Determine whether any or all of those facts formed the basis of his opinion. 4. Did the expert disregard any of those facts, and if so, why? 5. If the facts were different, then be specific. Would that change the expert’s opinions, and if so, how? 6. If not, then why not? P. Opinions 1. Get a detailed list of all of the expert’s opinions and conclusions formulated or held in this case. 2. Determine the basis for each opinion. Be sure to get all of the bases for each opinion. 3. When was the opinion developed? 4. On what facts is the expert relying for the opinion? 5. Did the expert consult with any other technical person in formulating the opinion? 6. What was the role of that person in connection with the formulation of the opinions? 7. Make sure you get a clear and concise statement of each opinion.

8. Did the expert consult with the plaintiff’s attorney to formulate the opinions? Q. Follow up and get a detailed explanation for each basis of each opinion

1. Did the expert conduct any type of survey or literature search in formulating the opinion? 2. Did the expert conduct any testing or accident reconstruction to formulate the opinion, such as laboratory or field testing? 3. Were any industry consensus standards violated, and if so, how. Ask the expert to provide a specific citation? 4. Did the expert consider whether any competitors offered “better” products or procedures which the expert could have used as a benchmark or guide post to assess the conduct of the defendant? 5. Determine whether the opinion makes common sense. 6. Determine what the expert’s opinion is concerning how the defendant should and could have done something different in preventing the accident. 7. Does anyone else share the expert’s opinion in this field? 8. Test your theories of defense or your own expert’s opinions against the opposing expert’s opinions. Does the expert agree or disagree? 9. Did the expert conduct any experiment to test his hypothesis? 10. Did the expert perform an engineering analysis of either the subject product or an exemplar product? a. Did the expert review design drawings? b. Did the expert perform any metallurgical testing? c. Did the expert perform any type of hazard analysis? 11. Did the expert attempt to measure or evaluate the product’s characteristics? 12. Did the expert perform an accident reconstruction, and if so, how did the expert perform the accident reconstruction?

13. Did the expert perform any type of mathematical analysis, prepare calculations or take measurements? 14. Did the expert make any effort to demonstrate how an alternative design would have prevented the accident? 15. Test each and every basis for the expert’s opinion. Have the expert point out where in the factual record that a witness testified to facts on which the expert relied. a. Did the fact witness testify to this fact? b. Alternatively, did the expert draw this inference? c. Did the expert review certain testimony or other materials which constitute the entire factual record? d. If the expert did not review the facts, documents, or transcripts, then ask the expert whether the establishment of a certain fact or group of facts would alter or change his opinion. 16. Exhaust each and every document the expert has reviewed or relied upon which could set up a cross-examination at trial regarding relevant documents that the expert never undertook the effort to review or analyze. R. Remaining work or investigation to be done by opposing expert 1. Is there any work remaining to be done by the expert? 2. What is the nature of the work to be done? 3. Has the plaintiff’s attorney requested that additional work be done? 4. Has the expert suggested to the plaintiff’s attorney that additional work be done? 5. What is the purpose or reason for performing the additional work? 6. Was there anything preventing the expert from performing the work prior to giving the deposition? 7. Preparation of trial exhibits, such as models or computer animations. 8. Reserve your right to redepose expert in the event there are any changes, additions, or expansions of his opinions. — Continued on next page

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Practice Guideline | continued

IV. Post Deposition Activities A. Send the opposing expert’s deposition with exhibits to your client and expert. B. Analyze whether the opposing expert’s testimony is favorable or unfavorable. C. Assess the impact of the opposing expert’s testimony on your evaluation and assessment of the case. In summary, a thorough and comprehensive deposition of the opposing expert will pay dividends prior to and at trial. Plaintiffs’ attorneys become much more reasonable if they realize that their expert witness is subject to attack or vulnerable on significant liability issues. Therefore, resolution of cases is more likely if the plaintiff’s expert has been compromised at his deposition. An effective deposition of the plaintiff’s expert is critical for your crossexamination of the plaintiff’s expert at trial. The answers to questions given at the deposition provide the groundwork for cross-examination at trial, and a well-executed cross-examination at trial has great jury appeal.

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Product Liability Ryan M. Frierott, Kevin P. Lolli, and Mallory Morgan Goldberg Segalla LLP, Chicago

Spoliation: Illinois Appellate Court Creates a High Standard to Bring Derivative Claim Plaintiffs are increasingly using destroyed, lost, or altered evidence to bring spoliation of evidence claims in product liability actions. In Illinois, a plaintiff can make a spoliation claim if it is tied to an underlying negligence action. Although spoliation claims are meant to address evidentiary issues, Illinois does not recognize them as an independent tort. Accordingly, a spoliation claim does not have its own statute of limitations and instead is based upon the underlying claim in the lawsuit. On October 7, 2015, the Illinois Appellate Court, Second District, issued an opinion that made clear the requirements for a plaintiff bringing a product liability spoliation claim. Wofford v. Tracy, 2015 IL App (2d) 141220, is a clear example of the high bar the Illinois courts have set for a plaintiff to prove a prima facie claim of spoliation of evidence. In Wofford, the plaintiffs sustained bodily injury while escaping an October 9, 2010, fire in a home they were renting. Wofford, 2015 IL App (2d) 141220, ¶ 3. On January 5, 2011, the plaintiffs filed a two-count complaint against the homeowner alleging the fire was the result of faulty wiring and that the homeowner had notice of the issue. Id. Subsequently, the trial court granted the plaintiffs’ counsel “reasonable access to inspect and photograph, but not alter, the premises.” Id. ¶ 4 On July 25, 2013, after the homeowner filed for bankruptcy and a court order limited his liability to the proceeds of his insurance policy, the plaintiffs filed

an 18-count amended complaint against the homeowner, his insurer, and their retained fire investigator, fire damage remover and rehabber alleging negligence, spoliation, conspiracy, conversion, and res ipsa loquitur claims, all based on

About the Authors Ryan M. Frierott is a partner in Goldberg Segalla LLP’s Chicago office. He focuses his litigation practice 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. K e v i n P. L o l l i i s a n associate in Goldberg Segalla LLP’s Chicago office. His practice focuses on product liability and general liability defense. His experience also includes insurance coverage and construction negligence cases. Mr. Lolli has defended product liability cases in state and federal courts in Illinois. Mallory Morgan is a law clerk in Goldberg Segalla LLP’s Chicago office. She is currently in her second year at DePaul University College of Law and received her undergraduate degree from Villanova University in 2014. Currently, she is a Staff Member of the DePaul Law Review. Ms. Morgan has experience in products liability and public interest legal work.

allegations that the defendants possessed, investigated, and subsequently demolished evidence vital to the plaintiffs’ claims. Id. ¶ 7. The plaintiffs’ second amended complaint raised essentially the same allegations as the prior pleading and further asserted the defendants had a duty to preserve the fire scene that arose from the circumstances surrounding the fire that made it foreseeable that a lawsuit might be filed. Which Statute of Limitations Applies to a Spoliation Claim? The trial court dismissed the plaintiffs’ spoliation count with prejudice as time-barred pursuant to the two-year limitations period for personal injuries. The plaintiffs appealed arguing that their spoliation claim was not time-barred because it was derivative of a claim for the destruction of their personal property which has a five-year limitations period. Specifically, the plaintiffs argued that applying the personal injury statute of limitations would be inappropriate because a spoliation action arises out of the destruction of property rather than a personal injury. The Wofford court rejected the plaintiffs’ argument, reasoning that under Illinois law, once the statute of limitations of an underlying cause of action expires, the limitations period for a corresponding spoliation action also expires. In this instance, as the plaintiffs sued for personal injuries suffered in the fire, and not for property damage, their spoliation claim was subject to a two-year limitations period and thus time-barred.

What is the Standard for a Spoliation Claim? After dismissing the plaintiffs’ spoliation count with prejudice as timebarred, the Wofford court provided that dismissal was also appropriate under 735 ILCS 5/2-615. In that regard, the court held that four elements must be proven by a plaintiff to make a successful spoliation claim: (1) the defendant owed the plaintiff a duty to preserve the evidence; (2) the defendant breached that duty by losing or destroying the evidence; (3) the loss or destruction of the evidence was the proximate cause of the plaintiff’s inability to prove an underlying lawsuit; and (4) as a result, the plaintiff suffered actual damages. Id. ¶¶ 9, 39 (citing Dardeen v. Kuehling, 213 Ill. 2d 329, 336 (2004)). With respect to the existence of a duty, the Wofford court identified a two-prong test: “(1) [F]irst, a court must determine whether a duty arose by agreement, contract, statute, special circumstance or voluntary undertaking…and (2) if so, it must determine . . . whether a reasonable person should have foreseen that the evidence was material . . . .” Id. ¶ 42. In holding the plaintiffs failed to demonstrate the defendants owed them a duty to preserve evidence, the Wofford court noted that a contract to preserve evidence must include the party asserting the spoliation claim. Id. ¶ 45. As the only relevant contract was the insurance agreement between the defendant homeowner and its insurer—a contract the plaintiffs were not parties to—there was no contractually imposed duty. Id. ¶ 45. The court next recognized that a spoliation claim can be made under “special circumstances,” such as a specific request by a plaintiff to preserve evidence and/

or a defendant’s segregation of the evidence for a plaintiff’s benefit. The Wofford court used the following test to determine if “special circumstances” existed in the instant action: (1) whether there was a request to preserve evidence; (2) whether the plaintiff had opportunity to inspect and document evidence; and (3) whether the defendants were in possession and control of the evidence. Id. ¶¶ 49, 50. The court rejected the existence of special circumstances as the plaintiffs failed to allege that they made a request to the defendants to preserve evidence, that they had an inadequate opportunity to inspect or document the evidence and that the scene was not sufficiently documented by others. Id. ¶ 51, 52. Lastly, the court stated that a spoliation claim could be maintained under the “voluntary undertaking exception,” in which a defendant engages in affirmative conduct to preserve the evidence at issue. Id. ¶ 58. The Wofford court, however, noted that the “mere possession” of evidence or performing an investigation did not equate to the affirmative conduct necessary to trigger the exception. Id. As such, the plaintiffs’ allegations that the defendants merely possessed, investigated, and demolished vital evidence were insufficient to establish a spoliation claim under the exception and were properly dismissed. Id. ¶¶ 57, 58. In light of Wofford, the defendants who are facing spoliation of evidence claims must identify the plaintiff’s underlying claim and corresponding statute of limitations to confirm that the claim is not time-barred and also ensure the claim has been plead with sufficient specificity to establish the existence of a duty.

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Workers’ Compensation Report Bradford J. Peterson Heyl, Royster, Voelker & Allen, P.C., Urbana

Protecting Medicare Advantage Plans’ Recovery of Conditional Payment of Medical Expenses Part C of the Medicare statute allows for the creation of the Medicare Advantage Program. Medicare Advantage Organizations (MAOs) are private insurers who contract with Medicare to provide coverage to beneficiaries. Those beneficiaries choose to obtain coverage under Part C as opposed to obtaining coverage directly from Medicare under Part A or B. MAO’s are paid a fixed amount from Medicare for each enrollee and then directly administer benefits to the insureds. Since MAOs are private insurers, the question arises as to whether they have the same standing as Medicare with regard to rights and obligations under the Medicare Secondary Payer Act. 42 U.S.C. § 1395y(b)(2). The issue was addressed in In re Avandia Marketing, 685 F.3d 353 (3d Cir. 2012). In Avandia, the Court of Appeals for the Third Circuit held that Medicare Advantage Plans, such as Humana, had an express private cause of action, including the right to double damages against primary payers under the Medicare Secondary Payer Act. In re Avandia, 685 F.3d at 357, 367. Humana, a Medicare Advantage Plan, brought suit against GlaxoSmithKline seeking recovery of medical expenses and double damages based on payments Humana made to its enrollees for medical expenses associated with the diabetes drug Avandia. The United States District Court for the Eastern District of Pennsylvania originally dismissed Humana’s ac52 | IDC QUARTERLY | First Quarter 2016

tion; however, the Third Circuit reversed, finding that the Medicare Secondary Payer Act in fact accorded Medicare Advantage Plans a private cause of action to recover from primary payers such as GlaxoSmithKline. Id. at 356-357, 367. GlaxoSmithKline’s petition for certiorari before the United States Supreme Court was denied. GlaxoSmithKline v. Humana Med. Plans, Inc., 133 S. Ct. 1800 (2013). Since the Avandia decision, several other district courts have found that MAOs have a private cause of action under the Medicare Secondary Payer Act. The most recent example occurred in Humana Medical Plan, Inc. v. Western Heritage Ins. Co., 94 F. Supp. 3d 1285 (S.D. Fla. 2015). In its March 2015 decision, the United States District Court for the Southern District of Florida held as a matter of law that Humana, a Medicare Advantage Plan, was entitled to maintain a private cause of action for double damages against Western Heritage Insurance pursuant to 42 U.S.C. § 1395y(b)(3)(A). Humana Med. Plan, Inc., 94 F. Supp. 3d at 1292-93. In addition to awarding Humana its conditional payments claim, the court entered judgment for double damages. Id. at 1293. The facts of the case were as follows. Mary Reale suffered an injury in January 2009 from a slip and fall at the Hamptons Condominium Complex. The Hamptons’ liability carrier, Western Heritage Insurance Company, entered into a settlement with Reale for the sum of $115,000. Id.

at 1287. In the settlement agreement, Reale asserted that she had no outstanding Medicare liens, and a letter from the Center for Medicare and Medicaid Services (CMS) dated December 2009, confirmed that CMS had no record of processing any Medicare claims on behalf of Reale. Id. Prior to consummating the settlement, Western Heritage learned that Humana made payments for medical expenses as a Medicare Advantage insurer and attempted to require that Reale accept a settlement check with Humana also named as payee. Id. The state court judge hearing the personal injury case ordered Hamptons to tender full payment to Reale without including any lien holders on the check, and ordered Reale’s counsel to hold sufficient funds in trust to resolve all medical liens. Id. Humana and Reale disputed the amount of the Humana conditional payments. Id. When Humana and Reale failed to resolve that dispute, Humana filed an action against Western Heritage seeking recovery of conditional pay-

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 written and spoken frequently on the issue. He was one of the first attorneys in the State of Illinois to publish an article regarding the application of the Medicare Secondary Payer Act to workers’ compensation claims, “Medicare, Workers’ Compensation and Set Aside Trusts,” Southern Illinois Law Journal (2002).

ments and double damages under the Medicare Secondary Payer Act. Id. at 1288. On Humana’s motion for summary judgment, the district court found that the Medicare Secondary Payer Act allowed a private cause of action against Western Heritage Insurance Co., thereby following the holding of the Third Circuit in Avandia. Id. at 1290-91. The court stated that “after Western Heritage became aware of payments Humana advanced on behalf of Mrs. Reale, it had an obligation to independently reimburse Humana.” Id. at 1293. Because Western Heritage did not, the court ruled as a matter of law that Humana was entitled to maintain a private cause of action for double damages pursuant to 42 U.S.C. § 1395y(b)(3)(A) and was therefore entitled to $38,310.82 in damages. Id. The issue becomes particularly important as payments made by a Medicare Advantage Plan are not set forth in the conditional payments demand generated by the CMS, commonly known as the Medicare “super lien.” If a claimant is covered under a Medicare Advantage Plan as opposed to traditional Medicare, the conditional payments demand will be $0.00, yet payments may have been made by the Medicare Advantage Plan and they would have the same recovery rights as Medicare does to recover their conditional payments. In Parra v. PacifiCare of Ariz., Inc., 715 F.3d 1146 (9th Cir. 2013), the Ninth Circuit Court of Appeals appeared to reach a contrary result. The appellate court found that PacifiCare of Arizona did not have rights under federal law to pursue reimbursement of wrongful death damages paid to surviving family members. Parra, 715 F.3d 1146 at 11531156. The Ninth Circuit held that as a Medicare Part C insurer, PacifiCare did not have a private cause of action to seek

The Seventh Circuit Court of Appeals has yet to address the issue of whether Medicare Advantage Plans have the same rights as traditional Medicare to seek reimbursement under the Medicare Secondary Payer Act.

recovery under the Medicare Secondary Payer Act, 42 U.S.C. §1395y(b)(2) (B)(iii). Id. at 1154. The Ninth Circuit specifically distinguished the Third Circuit’s decision in Avandia, noting that PacifiCare’s claim was not against an insurer or the decedent’s estate, but rather against beneficiaries of a wrongful death claim. Id. The court therefore pointed out that it need not resolve whether Avandia was decided correctly as the Avandia holding still would not lead to a different result. Id. The Seventh Circuit Court of Appeals has yet to address the issue of whether Medicare Advantage Plans have the same rights as traditional Medicare to seek reimbursement under the Medicare Secondary Payer Act. It is therefore important in both workers’ compensation and liability cases to not only identify whether Medicare has made conditional payments, but also whether the claimant has Medicare coverage under a Medicare Part C policy (Medicare Advantage Plan). In such instances, the current case law trend suggests that an independent duty exists to protect the conditional payments made by the MAO. As with traditional Medicare claims, the Medicare Advantage Plans most likely have no duty to provide notice of their conditional payments claim (liens). Unfortunately, CMS does not coordinate benefits paid by MAOs and those payments are not

identified or disclosed in a traditional conditional payments search obtained through Medicare. In civil claims, interrogatories should be amended to not only inquire as to whether a plaintiff is a Medicare beneficiary, but whether they are covered under a Medicare Advantage Plan. If so, interrogatories should further inquire as to the identity of the Medicare Advantage insurer and whether any medical payments have been made by the Advantage Plan. Any potential lien of the Medicare Advantage Plan will need to be addressed and resolved through settlement or satisfaction of judgment. In the workers’ compensation context, inquiry should be made of the petitioner’s attorney whether the petitioner is covered under Medicare or Medicare Part C (Medicare Advantage). Where unrepresented, claimants should be interviewed and their Medicare status identified. Prior to settlement, the Medicare Advantage Plan must be contacted and inquiry made as to any conditional payments made by the plan for injury related medical expense. Any claim for reimbursement by the plan must be resolved in the course of settlement.

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Supreme Court Watch M. Elizabeth D. Kellett HeplerBroom LLC, Edwardsville

Does the Discovery Rule Apply to Claims Brought Under the Wrongful Death Act or Pursuant to the Survival Act? Moon v. Rhode, No. 119572, 3d Dist. No. 3-13-0613 The plaintiff is the executor of his mother’s estate. Moon v. Rhode, 2015 IL App (3d) 130613, ¶ 1. The plaintiff’s mother died on May 29, 2009. Moon, 2015 IL App (3d) 130613, ¶ 4. Approximately nine months later, the plaintiff requested and received his mother’s medical records. Id. ¶ 6. The plaintiff provided these records to a medical consulting firm and the firm determined that the plaintiff’s mother’s surgeons were negligent. Id. The plaintiff filed a medical negligence action against his mother’s surgeons on May 10, 2011. Id. In February 2013, three years and nine months after his mother’s death, the plaintiff sent his mother’s radiographs to a doctor for review in connection with the lawsuit against his mother’s surgeons. Id. ¶ 8. After reviewing the radiographs, the doctor provided the plaintiff with a report stating that the radiologist failed to properly read and interpreted the CT scan and that this failure contributed to the plaintiff’s mother’s injury and death. Id. On March 18, 2013, the plaintiff filed wrongful death and survival claims against his mother’s radiologist and the radiologist’s employer. Id. The defendants filed a motion to dismiss, arguing that the two-year statutes of limitation for both claims had expired. Id. ¶ 9. The defendants argued in the alternative that the complaint was untimely even if the 54 | IDC QUARTERLY | First Quarter 2016

discovery rule applied. Id. The discovery rule tolls the relevant status of limitations until the plaintiff knows or reasonably should know that an injury was caused by the defendant’s wrongful conduct. Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 249 (1994). The trial court granted the defendants’ motion to dismiss, finding that the date of death was the “date from which the two-year statute should be measured.” Id. The trial court further held that “even if we give everybody the benefit of the doubt and try to fix a date at which a reasonable person was placed on inquiry as to whether there was malpractice, even that was long gone by the time the complaint was filed.” Id. The plaintiff appealed. Reviewing the case under the de novo standard, the Illinois Appellate Court, Third District, affirmed the trial court’s order and denied the plaintiff’s petition for rehearing. Id. ¶¶ 10, 30. Justice Lytton dissented, stating that the motion to dismiss should have been denied because the discovery rule applies to wrongful death and survival actions and that a disputed question of fact remains about when the plaintiff possessed sufficient information to know that his mother’s death was wrongfully caused. Id. ¶¶ 35, 60. In the majority opinion, the Third District first acknowledged that two cases—Young v. McKiegue,

303 Ill. App. 3d 380 (1st Dist. 1999) and Wells v. Travis, 284 Ill. App. 3d 282 (2d Dist. 1996)—hold that the discovery rule applies to wrongful death suits against physicians. Id. ¶ 14. However, the Third District found that these cases were wrongly decided because they read language into section 13-212(a) “which is clearly not there.” Id. The Third District then analyzed the Wrongful Death Act (740 ILCS 180.01 et seq.). The Wrongful Death Act states that “[e]very such action shall be commenced within two years of knowledge of the death of such person.” Id. ¶ 14 (citing 740 ILCS 180/2). The Third District noted that because the Wrongful Death Act creates a new cause of action in derogation of the common law, the court must first look at and strictly construe the plain language of the Wrongful Death Act. Id. ¶ 17. While the General Assembly could have provided a limitations period in the Wrongful Death Act based on knowledge of the negligent

About the Author M. Elizabeth D. Kellett is an associate at HeplerBroom LLC. Ms. Kellett 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 practiced law in Washington, D.C. and represented institutions of higher learning in administrative hearings and proceedings before the U.S. Department of Education. She also represented insurance and financial corporations and individuals 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.

The Wrongful Death Act states that “[e]very such action shall be commenced within two years of knowledge of the death of such person.” The Third District noted that because the Wrongful Death Act creates a new cause of action in derogation of the common law, the court must first look at and strictly construe the plain language of the Wrongful Death Act.

conduct, because no such discovery rule was included in the Wrongful Death Act, the Third District refused to read one into the Act. Id. ¶ 18. Based on this analysis, the Third District found that Young and Wells, as well as several other cases that held that the discovery ruled applies to wrongful death cases, were wrongly decided. Id. ¶ 19. After holding that the discovery rule does not apply to the Wrongful Death Act, the Third District turned to the limitation period in section 13212(a). Section 13-212(a) states that the two year statute of limitations for actions for damages for injury or death against physicians cannot be brought “more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first.” (Emphasis added.) 735 ILCS 5/13-212) (a). The Third District found that the plain language of section 13-212(a) “provides that the clock starts ticking upon knowledge or notice of the injury or death, not upon notice of a potential defendant’s negligent conduct.” Id. ¶ 22. Because it was undisputed that

the plaintiff filed his complaint more than two years after learning of his mother’s death, the Third District held that the trial court properly granted the defendants’ motion to dismiss. Id. ¶ 20. Finally, the Third District briefly addressed the plaintiff’s survival action (755 ILCS 5/27-6). Again, the Third District looked to section 13-212(a) and found that the statute of limitations began to run when the plaintiff knew or should have known of his mother’s death. Id. ¶ 26. Therefore, as with the wrongful death claim, the survival action was properly dismissed. At the end of its decision, the Third District recognized that the holding creates a split in the districts and stated, “therefore, we anticipate at some point hearing from the supreme court on the issue.” Id. ¶ 30. The plaintiff seeks review in the Illinois Supreme Court. First, the plaintiff details the history of the discovery rule being applied to medical malpractice cases. The plaintiff argues that the Limitations Act (1965 Ch. 83 Ill.Rev. Stat. § 21.1), section 13-212(a), and thirty years of case precedent support the application of the discovery rule to medical malpractice cases. For example, in Young v. McKiegue, the First District held “Section 13-212(a) has been read

within the context of the ‘discovery rule’ to mean that the two-year malpractice statute of limitations begins to run when the party ‘knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused.’” Young, 303 Ill. App. 3d at 387. The plaintiff also points to Young when arguing that section 13212(a) is applicable to wrongful death claims. Id. at 386 (“the limitations period set forth in §2 (of the Wrongful Death Act) is inapplicable in cases where the wrongful death claim is predicated upon a claim of medical malpractice that was not apparent to the plaintiff at the time of death”). The plaintiff next argues that this is an issue of statutory interpretation and, whereas here, the legislature has chosen not to alter the outcome of a line of cases that have applied the discovery rule to cases brought pursuant to section 13-212(a) and the Wrongful Death Act, the construction becomes part of the fabric of the statute. The plaintiff notes that while the supreme court has not directly decided this issue, several courts have determined that the supreme court would likely apply the discovery rule to wrongful death cases. The plaintiff then turns briefly to the Survival Act claim and notes that Nola v. Johns-Manvilel Asbestos makes clear that the discovery rule should be applied in Survival Act cases. See Wyness v. Armstrong World Indus., 131 Ill. 2d 403, 412 (1989). The plaintiff’s second main argument is that the Third District wrongly held that dismissal was proper even if the discovery rule were to be applied. The Third District failed to explain its reasoning or provide a date on which the statute should have begun to run. The plaintiff argues that the issue of when the — Continued on next page

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Supreme Court Watch | continued

plaintiff became aware that his mother’s death was wrongly caused was a question of fact that should have been presented to the trier of fact. Third, the plaintiff argues that the Third District erred when it decided sua sponte that the discovery rule does not apply to the Wrongful Death Act or Survival Act. The defendants never argued that the discovery rule did not apply. Rather, the defendants argued that there was no need for the discovery rule because the

plaintiff had all of the necessary facts on the date of his mother’s death. Because the issue of whether the discovery rule applies was not raised by the trial judge or the defendants, the plaintiff argues that he should have been granted the opportunity to fully brief the issue. Finally, the plaintiff argues that the defendants waived the issue of whether the discovery rule applies to the Wrongful Death Act or Survival Act because the defendants never raised this argument.

If Claims are Involuntarily Dismissed with Leave to Amend and Plaintiff Fails to Amend Within the Allotted Time, Does the Dismissal Become a Final Judgement on the Merits? Richter v. Prairie Farms Dairy, Inc., No. 119518, 4th Dist. No. 4-14-0613 The plaintiffs are owners of a dairy farm that was a member of the defendant cooperative. Richter v. Prairie Farms Dairy, Inc., 2015 IL App (4th) 140613, ¶ 5. When the plaintiffs joined the cooperative, they purchased $15 worth of shares of common stock issued by the defendants and entered into a Milk Marketing Agreement whereby the plaintiffs would provide the defendant with whole milk and the defendant would market and sell the milk. Richter, 2015 IL App (4th) 140613, ¶ 5. On October 6, 2005, the defendant notified the plaintiffs that it was terminating the Milk Marketing Agreement and tendered $15 to the plaintiffs to redeem the common stock shares. Id. ¶ 6. The plaintiffs rejected the tender and filed a three-count complaint against the defendant. Id. ¶ 6. The

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defendant filed a motion to dismiss all claims (Richter I). Id. ¶ 9. The trial court denied the motion to dismiss as to count I and granted the motion to dismiss as to counts II and III. Id. The plaintiffs were given leave to file an amended complaint within 30 days. Id. The trial court then granted to the plaintiffs an additional 120 days to file an amended complaint. Id. Instead of amending their complaint, the plaintiffs chose to proceed with the remaining claim. Id. On September 7, 2012, the plaintiffs voluntarily dismissed their claim without prejudice. Id. ¶ 12. On September 6, 2013, the plaintiffs refiled their action against the defendant. Id. ¶ 14. The new complaint included counts I and III from the prior complaint and two new claims (Richter II). Id. The defendant filed a motion to dismiss

Richter II, arguing in part that “Richter I constituted a final adjudication on the merits and res judicata barred not only matters raised in the first action, but also matters that could have been determined in the original action.” Id. ¶ 16. In a docket entry, the trial court granted the defendant’s motion to dismiss. Id. ¶ 17. The plaintiffs appealed. Reviewing the case under the de novo standard, the Illinois Appellate Court, Fourth District, reversed the trial court’s order and held that res judicata did not bar the plaintiffs’ refiled suit because the defendant failed to carry its burden of proving a final judgment was entered on the merits. Id. ¶ 36. The Fourth District first explained that an order dismissing a complaint but grating leave to replead is not final until the trial court enters an order dismissing the suit with prejudice. Id. ¶ 25. Because the trial court granted to the plaintiffs leave to amend their complaint and did not provide any indication that the dismissal of the other counts was absolute and final, the Fourth District found that the trial court’s dismissal order was not a final order. The Fourth District next rejected the defendant’s argument that, under Smith v. Central Illinois Regional Airport, 207 Ill. 2d 578 (2003), the dismissal order became final when the plaintiffs failed to amend their complaint within the allotted time. Id. ¶ 27. The Fourth District refused to give Smith such a “narrow reading” and further noted that the trial court could have allowed the plaintiffs more time to amend their pleading if they had sought leave to do so. Id. ¶ 29. The Fourth District likewise rejected the defendant’s reliance on Rein v. David A. Noyes & Co., 172 Ill. 2d 325 (1996) and Hudson v. City of Chicago,

228 Ill. 2d 462 (2008). Id. ¶¶ 30-32. In both cases, the trial court dismissed some claims with prejudice before the plaintiffs voluntarily dismissed the remaining claims. Here, because the claims were not dismissed with prejudice in Richter I, the Fourth District found this case distinguishable from Rein and Hudson. Id. ¶ 32. Moreover, because the dismissal orders were not final, they did not become final when the remaining claims were voluntarily dismissed by the plaintiffs. Id. ¶ 33. Finally, the Fourth District noted that, in the five years between when the plaintiffs were given leave to file an amended complaint and the voluntary dismissal, the defendant could have but did not take any steps to have the dismissed claims converted to dismissals with prejudice. Id. ¶ 35. The defendant seeks review in the Illinois Supreme Court, first arguing that the Fourth District’s decision conflicts with Rein and Hudson and weakens the equitable doctrine of res judicata. According to the defendant, Rein and Hudson stand for the proposition that where portions of a complaint are involuntarily dismissed and the remaining portions are voluntarily dismissed, res judicata will bar the plaintiff’s attempt to refile claims that were already decided in the first action and claims that could have been filed in the first action. The defendant notes that the Fourth District’s decision creates a new rule requiring the defendant to file a second motion seeking to re-dismiss already properly dismissed claims. The defendant’s second argument is that the Fourth District’s ruling conflicts with Illinois Supreme Court Rule 273, which provides:

[T]he ruling means that there are no consequences for a plaintiff’s failure to act within the leave period. Without consequences, the defendant argues, an involuntary dismissal with leave to amend is no different than a dismissal without prejudice.

Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits. Ill. S. Ct. R. 273. According to the defendant, a dismissal with leave to amend invokes the “otherwise specifies” language of Rule 273. Therefore, once the leave period expired and no action was taken by the plaintiffs, Rule 273 operated to default the involuntary dismissal order as “an adjudication on the merits.” The defendant argues that the Fourth District’s ruling means that an involuntary dismissal with temporary leave to amend can never be an adjudication on the merits. Moreover, the ruling means that there are no consequences for a plaintiff’s failure to act within the leave period. Without consequences, the defendant argues, an involuntary dismissal with leave to amend is no different than a dismissal without prejudice.

The defendant’s third argument is that the Fourth District’s decision directly conflicts with Illinois Supreme Court and Appellate Court opinions, including Rein, Hudson, and Smith. In Smith, the defendant argues, the court stated that an involuntary dismissal would have become a final adjudication on the merits if the plaintiff decided to stand on his complaint and not amend during the leave period. See Smith v. Cent. Illinois Reg’l Airport, 207 Ill. 2d 578, 588-89 (2003). The Fourth District ignored this language when they held that the trial court’s dismissal order did not become final when the plaintiffs failed to amend their complaint. The defendant’s final argument is that the Fourth District improperly created a new rule imposing a burden upon the defendant to re-dismiss claims that had already been dismissed upon the merits. The defendant argues that this rule conflicts with Rule 273 and improperly shifts to the defendant burdens that properly belong to the plaintiffs.

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Construction Law Lindsay Drecoll Brown and John J. Vitanovec Cassiday Schade LLP, Chicago

Interpreting the Public Construction Bond Act: Is a Surety Still a Sure Thing? Pursuing payment on behalf of a subcontractor on a state or municipal construction project can be complicated. The doctrine of sovereign immunity bars suit against the government in most circumstances. Robert Porter, Contract Claims Against the Federal Government: Sovereign MUNITY and Contractual Remedies, Briefing Paper No. 22, Harvard Law School Federal Budget Policy Seminar (2006). State protections against liability operate to prohibit the filing of liens on public property. F. D. Rich Co. v. United States for the Use of Indus. Lumber Co., 417 U.S. 116, 122 (1974) (citing Illinois Surety Co. v. John Davis Co., 244 U.S. 376, 380 (1917)). Thus, while mechanics liens may be filed on private properties by contractors to ensure payment, Illinois law permits only approved liens on money or bonds with respect to work performed on improvements to public property. Gunther v. O’Brien Bros. Const. Co., 369 Ill. 362, 367 (1938); also see the Illinois Mechanics Lien Act, 770 ILCS 60/0.01 et. seq. (2015). The rationale behind such restrictions is that a subcontractor cannot infringe upon the rights of the State—even if that means the subcontractor will ultimately go unpaid for services rendered. Gunther, 369 Ill. at 367. To avoid such an unpleasant outcome, practitioners may advocate strict compliance with our state’s Public Construction Bond Act (the Act), which prescribes a remedy for subcontractors working on public projects. 30 ILCS 550/0.01, et seq.; Aluma Systems, Inc. v. 58 | IDC QUARTERLY | First Quarter 2016

Frederick Quinn Corp., 206 Ill. App. 3d 828, 853-54 (1st Dist. 1990). This article provides a brief overview of the history behind the Act, as well as a synopsis of a recent Illinois Supreme Court decision, Lake County Grading Co., LLC v. Village of Antioch. 2014 IL 115805, which highlights the protections afforded by the Act and the dangers of failing to comply with its procedural requirements.

Supp. 901, 903 (C.D. Ill. 1987). From its inception, the Heard Act faced harsh criticism from subcontractors and material suppliers. They complained of undue delay and hardship when attempting to collect moneys owed to them on the bonds, citing difficulties stemming from the fact that the performance portion of the bond took priority over the payment obligations as the federal government was given priority in making a claim under the bond where the principle contractor did not complete the work. H.R. Rep. No. 74-1263, at 1-2 (1935). In response to those complaints, the Heard Act was repealed and the Miller Act was enacted in its place. H.R. Rep. No. 74-1263, at 1-2 (1935), 40

Federal Precursors to the Illinois Public Construction Bond Act In 1894, the United States Congress passed the Heard Act, 28 Stat. 278, ch. 280, mandating the provision of a surety bond by all persons entering into public works contracts with the United States. J.W. Bateson Co. v. United States, 434 U.S. 586, 598 (1978). That legislation was passed to address concerns voiced by subcontractors and material suppliers, who complained they were unable to collect outstanding debts from general contractors retained to manage federal construction projects. Bateson, 434 U.S. at 598. The bond required under the Heard Act contained language encompassing both common surety bonds—performance bonds and payment bonds. Id. A performance bond ensures the property owner that the contractor will perform the work as contracted, whereas a payment bond requires the principle contractor to pay all subcontractors and material providers before final payment is made by the owner. Western Waterproofing Co. v. Springfield Housing Authority, 669 F.

About the Authors Lindsay Drecoll Brown is a senior associate in the Chicago office of Cassiday Schade LLP. She concentrates her practice in civil litigation defense, with an emphasis on construction law, professional 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. John J. Vitanovec is an associate at Cassiday Schade LLP’s Chicago office. He concentrates his practice in the defense of civil litigation matters concerning construction, medical malpractice, and insurance coverage. He received his undergraduate degree from Loyola University Maryland and his J.D. from DePaul University College of Law. He is a member of the IDC, serving its Construction Law Committee.

U.S.C. §§ 270a–270d. During the New Deal, the federal government initiated massive public construction projects as a counter to deflation and in an attempt to put money in the pockets of construction workers. Herbert R. Northrup & Augustus T. White, Subsidizing Contractors to Gain Employment: Construction Union “Job Targeting,” 17 Berkeley J. Emp. & Lab. L. 62, 77 (1996). As opposed to the singular, all-encompassing bond mandated by the Heard Act, the Miller Act required the principle contractor on federal projects to secure separate performance and payment bonds. H.R. Rep. No. 74-1263, at 1-2 (1935). The resulting protection worked so well that states followed suit and instituted their own laws known as “Little Miller Acts.” Gregory Paonessa, The Mechanic’s Lien - Are You Protected?, 48 New Eng. L. Rev. 579, 603 (2014). In Illinois, our General Assembly originally passed its own “Little Miller Act”—the Illinois Public Construction Bond Act (the Bond Act)—in 1931. 30 ILCS 550/1 (2015). Illinois Courts have observed that this Act provides an alternate remedy to that afforded by the Mechanics’ Liens Act, and that its passing was meant to protect contractors and materialmen for whom no right of mechanic’s lien exists against a public body, as well as to regulate claims against public monies. City of Chicago v. United States Fidelity & Guaranty Co., 142 Ill. App. 3d 621, 626 (1st Dist. 1986). The Illinois Public Construction Bond Act With respect to contracts pertaining to work performed for the state on public improvement projects exceeding $50,000, the Bond Act provides, in pertinent part:

Except as otherwise provided by this Act, all officials, boards, commissions, or agents of this State…shall require every contractor for the work to furnish, supply and deliver a bond to the State, or to the political subdivision thereof entering into the contract, as the case may be, with good and sufficient sureties. The surety on the bond shall be a company that is licensed by the Department of Insurance authorizing it to execute surety bonds and the company shall have a financial strength rating of at least A- as rated by A.M. Best Company, Inc., Moody’s Investors Service, Standard & Poor’s Corporation, or a similar rating agency. The amount of the bond shall be fixed by the officials, boards, commissions, commissioners or agents, and the bond, among other conditions, shall be conditioned for the completion of the contract, for the payment of material used in the work and for all labor performed in the work, whether by subcontractor or otherwise. 30 ILCS 550/1 (2015). Each such bond provided in compliance with the Bond Act is deemed to contain the following provisions, regardless of whether such terms are included therein: The principal and sureties on this bond agree that all the undertakings, covenants, terms, conditions and agreements of the contract or contracts entered into between the principal and

the State or any political subdivision thereof will be performed and fulfilled and to pay all persons, firms and corporations having contracts with the principal or with subcontractors, all just claims due them under the provisions of such contracts for labor performed or materials furnished in the performance of the contract on account of which this bond is given, when such claims are not satisfied out of the contract price of the contract on account of which this bond is given, after final settlement between the officer, board, commission or agent of the State or of any political subdivision thereof and the principal has been made. Id. Every person furnishing material or performing labor, either as an individual or as a sub-contractor for an entity required to obtain a bond pursuant to Section 550/1, has the right to sue on the bond. 30 ILCS 550/2. To pursue such a claim, the subcontractor or material provider must first file a verified notice of claim on the bond with the officer, board, bureau or department awarding the prime contract on behalf of the municipal entity within 180 days after the date of the claimant’s completion of work on the project in order to preserve its right to recovery. Id. The claimant must provide a copy of the verified notice to the prime contractor within 10 days of the filing of the notice with the agency awarding the contract. Id. Furthermore, the claimant must file its lawsuit in the same judicial district in which the project — Continued on next page

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was located within one year of the last day it performed work on the project. Id. That is, assuming the parties did not previously contractually agree to expand the statutory limitations period. See generally, United States v. Fischer Excavating, Inc., No. 4:12-cv-4CV-SLDJAG, 2014 U.S. Dist. Lexis 129890, *12 (C.D. Ill. Sept. 17, 2014). Lake County Grading Co. v. Village of Antioch Lake County Grading Co. v. Village of Antioch arose from two contracts between the Village of Antioch and a developer retained by the Village to make public improvements to two residential subdivisions. Lake County Grading, 2014 IL 115805, ¶¶ 3-4. The contracts required that the developer obtain surety bonds, the amounts of which would be based on the total cost of improvements. Id. ¶ 4. Instead of obtaining a single bond incorporating the requisite language pertaining to both a performance and payment bond, the developer obtained and provided the Village with four separate surety bonds that only included language necessary to create a performance bond. Id. ¶ 6. In other words, the bonds were lacking language to guarantee payment to subcontractors for labor or materials. Id. ¶ 7. Subsequently, the developer retained a grading company to provide labor and materials for the public improvements called for in the contract between the developer and the Village. Id. ¶ 8. The grading company completed the work; however, the developer declared bankruptcy prior to providing full payment for the company’s services. Id. The grading company filed a complaint seeking payment from the Village, alleging it was a third-party beneficiary of the contracts 60 | IDC QUARTERLY | First Quarter 2016

between the Village and the developer pursuant to the requirements set forth in Section 550/1 of the Bond Act and that the Village breached the contracts by not ensuring that the surety bonds obtained by the developer contained language guaranteeing payment to subcontractors. Id. ¶ 9. The Village filed a motion for summary judgment, arguing that the bonds provided by the developer were sufficient because they contained performance and payment obligations as a matter law in light of the mandates of Section 550/1. Id. ¶ 10. As such, the Village further argued, the plaintiff could only file a cause of action against the bonds themselves and said claim would be barred by Section 2 of the Bond Act because the grading company failed to give notice of its claims within the 180 days after completion of its work. Id. The Supreme Court found in favor of the Village. Id. ¶ 38. The Court found that the plain language of the Bond Act requires the political subdivision of the State to have the principle contractor procure one bond as opposed to separate performance and payment bonds as required under the Miller Act. Id. ¶¶ 24, 28. Further, regardless of the actual language of the bond procured by the principle contractor in accordance with the Bond Act, the General Assembly has unambiguously decreed all such bonds are deemed to contain both performance and payment provisions as a matter of law. Id. ¶ 25. The Court observed that the guarantee of performance and payment provisions as a matter of law is consistent with the General Assembly’s purpose of assuring payment to providers of labor and materials to public projects, while also protecting the tax money paid to the principle contractor, by assuring completion of the public project. Id. ¶ 26. Since the bonds procured by the developer did

contain a payment provision as a matter of law, the bonds were not defective and the grading company could not recover against the Village under a breach of contract theory. Id. ¶¶ 32, 38. Instead, a notice of claim on the bond should have been filed within the 180-day time period allotted under the Bond Act. Id. ¶ 24. Impact of Lake County Grading Co. There are several consequences arising from our Supreme Court’s ruling in Lake County Grading Co. First, both the municipal entity and the principle contractor retained to manage a public construction project need not expend the costs necessary to procure two separate bonds when contracting to perform public construction. Instead, contractors performing work for subdivisions of the State of Illinois need only pay premiums for one bond, which need not necessarily even contain both a payment provision and a performance provision. Additionally, because principle contractors need only obtain one bond, subcontractors and material suppliers in Illinois may face the same obstacles as subcontractors dealing with Bonds under the Heard Act that led to the repeal of that legislation: delay in obtaining payment in light of priority given to the state and its subdivisions pursuing the performance provision read into the one obtained bond as a matter of law. So, while Illinois courts have found a two-fold purpose behind the General Assembly’s enactment of the Bond Act of assuring payment to providers of labor and materials to public projects and protecting the payment of tax monies, the purpose of protecting payment of tax monies where there is a failure of the principal contractor to comply with the prime contract inevitably takes

Association News priority over the purpose of protecting subcontractors. See City of Chicago, 142 Ill. App. 3d at 626. To assuage such concerns, practitioners may consider advising their clients to negotiate for additional protections—beyond those minimum protections established by the Bond Act—when bidding on government projects. See, generally, Fischer Excavating, Inc., 2014 U.S. Dist. Lexis 129890, *12; Aluma Systems, Inc., 206 Ill. App. 3d at 853-54. Finally, the Supreme Court’s ruling that the state or a subdivision of the state cannot be found liable for a breach of contract by failing to ensure that the principal contractor obtain a bond with both a payment provision and a performance provision may have far-reaching applications. That determination confirms that the only recourse a public improvement subcontractor may avail itself of in the event of insolvency of the principal contractor is to file suit on the bond. In light of the foregoing, subcontractors on public projects should be counseled to take steps to pursue payment for their work prior to the 180-day deadline provided in the Bond Act. Then, in the event of nonpayment, a verified notice of claim on the bond should be filed with the officer, board, bureau or department awarding the prime contract on behalf of the municipal entity within that timeframe so that their right to payment is not waived.

Member Forums We are excited to roll out our Member Forums on www.iadtc.org. We understand that the world and our members are becoming more social and connecting online. As such we encourage all members to participate in our online community. IDC hosts several pages on public tools such as Facebook, Twitter, LinkedIn and YouTube and we are pleased to now offer IDC Forums, our private members’ only social network. All of these platforms are great tools to get the advice of your peers, learn from their experience, and participate in an ongoing conversation. To subscribe to an IDC Forum, follow these steps: 1. Logon to www.iadtc.org 2. Click on the Communities icon at the top of the page 3. Select IDC Forums 4. Review the Rules and Guidelines for our Forums 5. Click on the IDC Forum(s) to which you would like to subscribe 6. From the drop down folder titled Forum Actions, select “Subscribe to Instant Updates” to receive notifications each time a post is made OR “Subscribe to Digest” to receive digests of the Forum posts. 7. You are all set! Once you are subscribed, be sure to post your questions, concerns, suggestions, and ideas to our Forum(s). To do so, navigate to the Forum and click on New Topic at the top of the Forum page. Please note that your name and photo (if uploaded to the website) will appear with your post.

The IDC Daily Did you know that the IDC offers a daily e-newsletter? The IDC Daily is a compilation of legal news—headlines, politics, technology, business, education, environment, science, etc.—from throughout the web. To view the Daily and to subscribe, go to http://www.iadtc. org/?page=TheIDCDaily and enter your email address in the Subscribe to the Email Newsletter box near the top of the page.

First Quarter 2016 | IDC QUARTERLY | 61

Association News | continued

Holiday Party We would like to thank the many members who joined us for our Annual Holiday Party and Spirit of the Season Fundraiser in December. Thanks to the generous participation of our members, we were able to contribute $1,000 to Imerman Angels, a cancer support group. For more information on Imerman Angels, please visit: www. imermanangels.org. Thank you to the following individuals and firms for their contributions to our Spirit of the Season Fundraiser: Denise Baker-Seal — Brown & James, P.C. Brenda Baum — HeplerBroom LLC Troy Bozarth — HeplerBroom LLC Jeremy Burton — Lipe, Lyons, Murphy, Nahrstadt & Pontikis, Ltd. Ed Grassé — Busse, Busse & Grassé, P.C. Greg Cochran — McKenna Storer Corinne Conrad — Wilson Elser Moskowtiz Edelman & Dicker LLP Pat Eckler — Pretzel & Stouffer, Chartered Terry Fox — Kelley Kronenberg Erica Gandzwaard Engineering Systems, Inc. John Garofalo — Jump & Associates, P.C. Howard Jump — Jump & Associates, P.C. David Levitt — Hinshaw & Culbertson LLP Bryan Luce Edna McLain — HeplerBroom LLC Mark Mifflin — Giffin, Winning, Cohen & Bodewes, P.C. Nicole Milos — Cremer, Spina, Shaughnessy, Jansen & Siegert, LLC Brad Nahrstadt — Lipe, Lyons, Murphy, Nahrstadt & Pontikis, Ltd. Greg Odom — HeplerBroom LLC Anne Oldenburg — Hay & Oldenburg, LLC Shannon O’Shea Michael Resis — SmithAmundsen LLC Ben Samuelson — Betty, Neuman & McMahon, P.L.C. Tracy Stevenson — Robbins, Salomon & Patt, Ltd. Patrick Stufflebeam — HeplerBroom LLC Aleen Tiffany — HeplerBroom LLC Michelle Wahl — Swanson, Martin & Bell, LLP Jeanne Zeiger — Cray Huber Horstman Heil & VanAusdal LLC

We would also like to thank the following companies for their generous sponsorship of the Holiday Party:

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Holiday Party | continued

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Association News | continued

IDC 2.0

In late 2015, members of the IDC gathered to discuss the future of the IDC. Our IDC 2.0 retreat gave us an opportunity to look back at what we have accomplished over the past 50+ years, but more importantly focus on the next generation of IDC. From IDC 2.0 a Task Force was developed to look at goals and strategies for improving the IDC. Thank you to all everyone who participated in IDC 2.0! 64 | IDC QUARTERLY | First Quarter 2016

Association News | continued

Insurance Seminar The IDC is proud to welcome the following members to the Association: Douglas R. Allen Skawski Law Offices, LLC, Oak Brook Sheina R. Franco HeplerBroom LLC, Edwardsville Svetlana Gitman Bruce Farrell Dorn & Associates, Chicago Daniel J. Klopfenstein Quinn, Johnston, Henderson, Pretorius & Cerulo, Springfield J. Patrick Lee Craig & Craig, LLC, Mattoon Sponsor: John F. Watson Teresa Minnich Robbins, Salomon & Patt, Ltd., Chicago Sponsor: Tracy Stevenson Matthew O’Malley Lipe, Lyons, Murphy, Nahrstadt & Pontikis, Ltd., Chicago Tyler Pratt Heyl, Royster, Voelker & Allen, P.C., Peoria

We would like to thank Engineering Systems, Inc. for their generous sponsorship, and Hinshaw & Culbertson LLP for hosting and sponsoring this event.

Matthew Reddy Pretzel & Stouffer, Chartered, Chicago Michael Reed Marwedel, Minichello & Reeb, P.C., Chicago John Suermann, Jr. HeplerBroom LLC, Edwardsville

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THE IDC MONOGRAPH: Beyond HIPAA: Solving the Puzzle of Properly Acquiring Mental Health Records in Litigation N. Drew Kemp Thompson Coburn LLP, Belleville Howard L. Huntington Bullaro & Carton, P.C., Chicago

IDC QUARTERLY | Volume 26 Number 1

Beyond HIPAA: Solving the Puzzle of Properly Acquiring Mental Health Records in Litigation The mental health of certain plaintiffs can easily become an issue worthy of discovery. For example, plaintiffs with prior mental health treatment may blame an accident for their post-accident psychiatric injuries. Sometimes the plaintiff’s mental health may have actually played a role in the accident itself, such as in a suspected suicide. Unlike criminal defense attorneys seeking to establish an insanity defense, civil defense attorneys perhaps too often overlook the potential importance of mental health records in civil litigation. Even though the records are important, they are not easy to get in Illinois. The Illinois Mental Health and Developmental Disabilities Confidentiality Act (Act) contains significant obstacles to disclosure and discovery.1 Defense counsel who are aware of the difficulties may dodge the issue. Doing so, however, may be a missed opportunity. Moreover, even attorneys who seek them must understand the perils that come with unwittingly pursuing mental health records without following the proper procedure. This article will provide a basic overview of the Act to assist counsel representing those seeking to obtain such records in civil litigation.2 The Mental Health and Developmental Disabilities Confidentiality Act “Formidable” is an apt description of the challenge counsel face when seeking the disclosure of the plaintiff’s mental

health information without the plaintiff’s consent.3 The Health Insurance Portability and Accountability Act (HIPAA) limits the circumstances under which a healthcare provider can disclose health information without the patient’s consent.4 While HIPAA generally preempts inconsistent state laws, it permits states to pass more stringent laws that protect an individual’s health information from disclosure.5 Illinois, like most states, passed a law that establishes more stringent standards for disclosure with regard to mental health records.6 The Mental Health and Developmental Disabilities Confidentiality Act provides for the confidentiality of such information and lists narrow exceptions under which mental health records and communications between a patient and his or her physician may be disclosed.7 The stringent disclosure standards protect the confidentiality of such records with the goal of encouraging people to seek needed treatment.8 The Act, which took effect in 1979, applies retroactively to records and communications made prior to its adoption.9 According to the Act, “[a]ll records and communications shall be confidential and shall not be disclosed except as provided in this Act.” 10 Some terms within the Act take on a much narrower meaning than their common everyday use. To navigate the Act it is important to become familiar with the definitions of key terms. The definitions can be found in Section 110/2.

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“Record” is “any record kept by a therapist or by an agency in the course of providing mental health or developmental disabilities service to a recipient concerning the recipient and the services provided.”11 A “communications” made confidential under the Act is “any communication made by a recipient or other person to a therapist or to or in the presence of other persons during or in connection with providing mental health or developmental disability services to a recipient.”12 A “communication” includes the mere fact that a person is receiving mental health treatment.13 The Act uses the terms “recipient” to refer to the patient whose records are at issue and “therapist” as the medical professional

About the Authors N. Drew Kemp is an associate at Thompson Coburn LLP. He is a trial attorney and practices product liability, FELA litigation, and toxic tort defense. Mr. Kemp obtained his law degree from the University of Missouri in 2013. Howard L. Huntington is a partner at Bullaro & Carton, P.C. in Chicago. He focuses his practice on construction, product liability, commercial, business, public entity, civil rights, and transportation litigation. He has defended a wide variety of high-stakes matters in Illinois and Indiana. He serves on the IDC Local Government Committee and is a member of various other associations, including Defense Trial Counsel of Indiana. Mr. Huntington has defended municipalities and public entities in Title VII discrimination cases, Section 1983 public employee cases, employment contract, and other matters in both Illinois and Indiana. He received a B.A. in political science from the University of Illinois at Urbana-Champaign and his J.D. from Chicago-Kent College of Law. He is AV rated by Martindale-Hubbell.

from whom confidential information is sought. A “therapist” need not be a psychologist or psychiatrist, but can be any physician or even a physician’s employee.14 Furthermore, the Act only prohibits disclosure from “those persons entering into a therapeutic relationship with clients.”15 A pharmacist performing a routine transaction16 or questioning a customer about her mental condition and treatment17 does not engage in such a relationship. The Act’s provisions are construed strictly and the courts are directed to “zealously guard against erosion of the confidentiality privilege” when presiding over anyone seeking nonconsensual release of mental health records.18 The Act is given teeth by section 110/15. Section 110/15 creates a cause of action for damages, injunction, and fees and costs for violations of the Act. Section 110/16 makes it a Class A misdemeanor to “knowingly and willfully” violate any provision of the Act.19 Records and communications may be disclosed in an action brought under this provision so long as it is not used for any other purpose.20 Consent Of course, the recipient patient can consent to the disclosure of mental health information if the consent is in writing.21 Predictably, an all-purpose “form” authorizing the blanket disclosure of mental health information is specifically forbidden by the Act.22 Similarly, “only information relevant to the purpose for which disclosure is sought may be disclosed.”23 For example, in Goldberg v. Davis, a mental health patient’s testimony at a disciplinary hearing brought against her psychiatrist for alleged sexual misconduct with her only constituted

a waiver of records to the extent they showed the fact of her sexual relationship with the psychiatrist and did not open the door to disclosure of all prior records of her mental health treatment.24 A person who obtains the proper consent may not redisclose the information without the recipient’s specific consent.25 Moreover, a therapist may assert a privilege “on behalf and in the interest of the recipient” notwithstanding the express consent of the recipient.26 Under such circumstances, the court may require that the therapist establish in an in camera hearing that disclosure is not in the recipient’s best interest.27 Waiver Exception Importantly, section 10(a) of the Act provides that both the patient and therapist have “the privilege to refuse to disclose and to prevent the disclosure of the recipient’s record or communications.” 28 The Act then lists several specific exceptions to this evidentiary privilege. Section 10(a)(1) of the Act provides the first exception, which applies to any civil or criminal proceeding in which the recipient waives the privilege. Under Section 10(a)(1), mental health records and communications may be disclosed if the recipient introduces his mental condition or any aspect of his services received for such condition as an element of his claim or defense.29 Once the recipient places his mental health at issue in the case, the court must conduct an in camera examination to determine if the proffered evidence is relevant, probative, not unduly prejudicial or inflammatory, and otherwise clearly admissible.30 But there is more. The court must then conduct a balancing test and find that other satisfactory evidence is

demonstrably unsatisfactory as evidence of the facts sought to be established by the evidence and that disclosure is more important to the interests of substantial justice than protection from injury to the therapist-recipient relationship or to the recipient or other whom disclosure is likely to harm.31 Only the recipient patient can open the door by making his mental condition an element to his claim or defense.32 A plaintiff’s mental condition is usually introduced by the type of damages alleged. In general, merely suffering a physical injury to the brain, such as a stroke or other brain trauma, does not by itself, implicate a mental condition.33 In Reda v. Advocate Health Care, the Illinois Supreme Court reversed the trial court’s order granting the disclosure of the plaintiff’s mental-health records when the plaintiff alleged he suffered a stroke following a botched knee replacement surgery.34 The supreme court stated that if it were true that a neurological injury is synonymous with psychological damage, then “in every case in which the plaintiff claimed damages stemming from a physical injury to the brain, the door to discovery of the plaintiff’s mental health records would automatically open, and the limited exception in section 10(a)(1) of the Act would effectively eviscerate the privilege.”35 The privilege under the Act also cannot be waived merely by stating a claim for loss of society.36 Likewise, claiming pain and suffering as an element of damages does not waive the privilege.37 However, an exception can arise in claims where pain and suffering is alleged, “if the recipient or a witness on his [or her] behalf first testifies concerning the record or communication.”38 This has been interpreted recently to mean that a Rule 213(f) disclosure may suffice — Continued on next page

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as testimony concerning the record or communication.39 In Deprizio v. MacNeal Memorial Hospital Assn., the plaintiff sued her doctors and hospital after suffering injury from a lithium overdose as a patient.40 The defendants filed a motion to compel production of records regarding the plaintiff’s psychological care after the plaintiff disclosed three experts, pursuant to Rule 213(f), who would testify about her reduced level of cognitive functioning.41 In affirming the trial court’s order to disclose the records, the appellate court held that “[r]equiring the trial court to wait for live testimony before finding the Act’s privilege waived not only proves inefficient, but is an illogical interpretation of the Act.”42 Fundamental Fairness Exception Another exception exists for fundamental fairness. In such cases, if the information sought might absolve the defendant from liability, fundamental fairness may require the disclosure of records even if the recipient has not waived his privilege under the Act. The Act’s clear mandate that only the recipient can introduce his mental condition as an element of his claim or defense has, at times, proved unjust in its application. In Maxwell v. Hobart Corp., the Appellate Court, First District, upheld the trial court’s order and found that a food service worker who injured his hand in a waste machine introduced his condition for purposes of the Act.43 In Maxwell, the plaintiff’s blood alcohol level at the time of the accident measured .136.44 The appellate court found that the plaintiff’s condition of sobriety had been introduced into the claim because it was a central, rather than peripheral, issue.45

Although relevance is a separate inquiry for the trial court to determine, the Act specifically provides that the party seeking disclosure must establish a compelling need for the records or communications if they go beyond the mere fact of treatment, the cost of services, and the ultimate diagnosis. Criminal defendants who raise the insanity defense are specifically excluded from this provision.

In D.C. v S.A, the Illinois Supreme Court discredited the Maxwell decision and reiterated that “relevancy and centrality” are not decisive of whether a recipient has introduced his mental condition as an element of his claim or defense.46 D.C. v. S.A. involved a traffic accident during which the plaintiff, a pedestrian, was struck on the highway by a car driven by the defendant.47 During discovery, the defendant requested the plaintiff’s mental health records.48 The plaintiff, citing section 10(a)(1) of the Act, objected.49 The plaintiff ’s medical records revealed that, upon his discharge from the hospital following the accident, his doctor referred him for a psychiatric evaluation.50 His doctor indicated that plaintiff was being referred because plaintiff might have been attempting suicide at the time of the accident. 51 After an in camera inspection of the relevant records, the trial court found that by alleging that he was exercising due care for his own safety, the plaintiff introduced his mental condition by simply filing suit.52 On appeal, the Illinois Supreme Court began by finding that “under the terms of section 10(a)(1) something

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more is required for the introduction of a condition as an element of a claim even concerning those pertaining to liability.”53 It further held that, given the circumstances of the case, and the clear language of section 10(a)(1), the plaintiff did not introduce his mental condition as an element of his claim.54 Nevertheless, the Court proclaimed, “[u]nder the circumstances presented here, fundamental fairness commands that the privilege yield.”55 The Court concluded that “the interests of fundamental fairness…outweigh the protections afforded the therapist-recipient relationship where [a] plaintiff seeks to utilize [the] protections [of section 10(a)(1)] as a sword rather than a shield to prevent disclosure of relevant, probative, admissible, and not unduly prejudicial evidence that has the potential to fully negate the claim plaintiff asserted against defendants and absolve them of liability.”56 To date, the judicially constructed “fundamental fairness” exception to the Act’s confidentiality privilege has not been challenged. It is clear that, in order for this exception to be used, there must be some evidence that the recipientplaintiff is seeking to hide information that would exculpate the defendant.57

Relevance Once the recipient’s mental condition is placed at issue, and the privilege is deemed waived, the court must determine if the evidence is admissible under the remaining elements of Section 10(a) (1). Although relevance is a separate inquiry for the trial court to determine, the Act specifically provides that the party seeking disclosure must establish a compelling need for the records or communications if they go beyond the mere fact of treatment, the cost of services, and the ultimate diagnosis.58 Criminal defendants who raise the insanity defense are specifically excluded from this provision.59 Although the fact of treatment, cost of services, and ultimate diagnosis of the recipient are technically considered a “record” or “communication,” this limited information may be disclosed under certain circumstances without the recipient’s consent.60 When Recipient is Deceased The protections afforded a recipient under section 110/10(a)(1) are slightly less restrictive when the recipient is deceased. Section 110/10(a)(2) sets out the circumstances in which mental health records or communications may be disclosed in a civil proceeding brought by a party on behalf of or as a beneficiary of the recipient after the recipient has died.61 Under this section, “the recipient’s physical or mental condition” must be introduced as an “element of a claim or defense by any party claiming or defending through or as a beneficiary of the recipient.”62 In addition, the court must find, after in camera examination, that the evidence is “relevant, probative, and otherwise clearly admissible; and

that other satisfactory evidence is not available regarding the facts sought to be established by such evidence; and that disclosure is more important to the interests of substantial justice than protection from any injury which disclosure is likely to cause.”63 Under this provision, when compared with section (a)(1), no consideration must be given by the trial court as to whether the evidence is “unduly prejudicial or inflammatory.” Additionally, with regard to the court’s balancing test, alternative evidence of the recipient’s mental condition that is not privileged must be “demonstrably unsatisfactory as evidence of the facts sought to be established” if the recipient is still living. Alternatively, after the recipient’s death, “other satisfactory evidence is not available regarding the facts sought to be established.”64 Such language in the Act seems to require a higher level of proof as to the sufficiency of the alternative nonprivileged evidence when the recipient is still living. Use by the Therapist to Support a Defense Section 10(a)(3) provides a more limited exception in civil cases, regardless of whether the recipient is living, or not, where the recipient is suing the therapist.65 Under such circumstances, records or communications may be disclosed by the therapist to his attorneys, but are not ipso facto admissible at trial. Rather, the therapist may “testify as to such records or communication in any administrative, judicial or discovery proceeding.”66

Records or Communications From and For Use in a Court-ordered Exam The Act also permits the nonconsensual disclosure of mental health records and communications made in the course of an examination ordered by the court for good cause shown.67 The recipient must be a party to the proceeding and the records must be relevant and otherwise admissible.68 Similarly, prior mental health records and communications can be disclosed to a court-appointed therapist for use in determining the recipient’s fitness to stand trial.69 The records, however, must have been made within 180 days of the court-appointed examination. Proceeding Involving Validity or Benefits Under An Insurance Policy Records may be disclosed over the objection of the recipient to an insurance company when a dispute arises over whether or not the recipient lied on his application for life insurance. 70 This exception also applies when the issue involves the validity of benefits under a health, disability, or accident policy.71 Subpoena Procedure Section 10(d) of the Act sets forth the procedure for obtaining such records or communications by subpoena, as follows: No party to any [civil proceeding], nor his or her attorney, shall serve a subpoena seeking to obtain access to records or communications under this Act unless the subpoena is accompa— Continued on next page

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nied by a written order issued by a judge or by the written consent under Section 5 of this Act of the person whose records are being sought, authorizing the disclosure of the records or the issuance of the subpoena.72 It is important for counsel pursuing such records with a consent to ensure that the consent contains all of the specifications provided by Section 5(b): (1) the person or agency to whom disclosure is to be made; (2) the purpose for which disclosure is to be made; (3) the nature of the information to be disclosed; (4) the right to inspect and copy the information to be disclosed; (5) the consequences of a refusal to consent, if any; and (6) the calendar date on which the consent expires; and (7) the right to revoke the consent at any time. The signing of the consent form must also be witnessed.73 In situations where counsel is pursuing records with a consent, it is advisable to also include a subpoena. Otherwise, court enforcement will not be an option in the event the therapist ignores the consent. The fact that a plaintiff could communicate revocation of the consent without defense counsel’s knowledge also makes reliance on a consent alone problematic. Notwithstanding Section 10(d)’s allowance for a subpoena supported by a consent rather than an order, defense counsel should be warned that plaintiff’s counsel might attempt to argue that Section 10(a) still requires the court’s in camera examination and findings discussed above for the records and communications to be “disclosed in a civil … proceeding.”74 Without the written consent, “no person shall comply with a subpoena for records or communications under this Act, unless the subpoena is accompanied

Without the written consent, “no person shall comply with a subpoena for records or communications under this Act, unless the subpoena is accompanied by a written order authorizing the issuance of the subpoena or the disclosure of the records.” Moving counsel must take great care in both obtaining and drafting the order.

by a written order authorizing the issuance of the subpoena or the disclosure of the records.”75 Moving counsel must take great care in both obtaining and drafting the order. Moving counsel should consider filing the motion under seal, with redactions, or with some guidance from the court to keep the sensitive information out of the public court file. Any order attached to a subpoena pursuant to Section 10(d) must be obtained with written notice of the motion to the recipient and the treatment provider.76 In other words, counsel must provide proper advance notice to both the recipient of the mental health care and the provider of the treatment. Prior to issuance of the order, each party or other person entitled to notice shall be permitted an opportunity to be heard, including a request for an in camera review of the record or communication to be disclosed.77 A treatment provider may contest entry of the order or the breadth of the order even against the wishes of the treatment recipient on the basis that it would not be “in the best interest of the recipient.”78 Moving counsel must be prepared to establish that disclosure is relevant and probative, that disclosure will not be unduly prejudicial or inflammatory, that disclosure is admissible, evidence other than that within the confidential

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record is “demonstrably unsatisfactory,” and disclosure is “more important to the interests of substantial justice than protection from injury to the therapistrecipient relationship or to the recipient or other whom disclosure is likely to harm.”79 Section 10(a)(1) provides that “no record or communication between a therapist and a recipient shall be deemed relevant for purposes of this subsection, except the fact of treatment, the cost of services and the ultimate diagnosis unless the party seeking disclosure of the communication clearly establishes in the trial court a compelling need for its production.”80 Moving counsel must be ready to convince the court as to why disclosure of more than just the simple basics of the treatment is necessary. A recipient of mental health services waives the confidentiality of her records only if she affirmatively places her own mental condition at issue.81 The Order (or the consent) should detail exactly what material is to be disclosed, exactly where it is to be sent, and exactly who will be permitted access. Much like drafting a protective order involving trade secrets, defense counsel should consider drafting the order to include permitted disclosure to attorneys, experts, consultants, other treating physician deponents, officers, directors, and insurers of named parties

where appropriate. Making the records returnable to a copy service is not advisable. The order should include a finding that the movant has demonstrated good cause for discovery of the subject confidential records. It is also helpful to draft the order in such a way that it contemplates any necessary depositions of mental health treatment providers. Importantly, to be valid, each subpoena issued by a court or served on any person pursuant to Section 5(d) of the Act must include the following language: No person shall comply with a subpoena for mental health records or communications pursuant to Section 10 of the Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/10, unless the subpoena is accompanied by a written order that authorizes the issuance of the subpoena and the disclosure of records or communications or by the written consent under Section 5 of that Act of the person whose records are being sought.82 Beware of Civil Actions and Criminal Penalties for Violations of the Act Section 15 of the Act provides “[a] person aggrieved by a violation of this Act may sue for damages, an injunction, or other appropriate relief” and further “[r]easonable attorney’s fees and costs may be awarded to the successful plaintiff in any action under this Act.”83 Section 10(d) prohibits all “persons” from complying with an improperly served subpoena. A cause of action exists against a therapist who improperly discloses the confidential

material.84 Similarly, a cause of action exists against an attorney who causes subpoenas to be served for mental health records without following the numerous strictures of the Act.85 Moreover, Section 16 of the Act provides “[a]ny person who knowingly and willfully violates any provision of this Act is guilty of a Class A misdemeanor.”86 Conclusion The Mental Health and Developmental Disabilities Confidentiality Act is a clear statement from the General Assembly about the importance of keeping mental health records and communications confidential. The Act makes use of HIPAA’s preemption exception that allows states to pass more stringent confidentiality laws.87 Exceptions to the Act are very narrow.88 As such, defense counsel should take great care in making sure all steps are met under the Act when seeking this type of information in litigation. Noncompliance could result in civil or criminal penalties. Additionally, because the Act calls for a court order prior to a subpoena as well as an in camera review after the records are released, counsel should necessarily be prepared to argue that the recipient has opened the door by introducing his mental condition, and display to the court the need for the records, and that no other non-privileged evidence will do. Even if the court denies the request for disclosure, clients are likely to appreciate the attempt.

(Endnotes) 740 ILCS 110/1 et seq.

1

Defense counsel may be called upon to prevent disclosure of such records when representing health care providers in an array of contexts. The task of protecting mental health records from disclosure (or failing to protect records from disclosure as a therapist) is outside the scope of this article. Depending on their purposes, readers may also benefit from familiarizing themselves with related laws including 405 ILCS 5/1-100, et seq., the “Mental Health and Developmental Disabilities Code” and 45 C.F.R. §§ 160 and 164.

2

Deprizio v. MacNeal Memorial Hospital Association, 2014 IL App (1st) 123206, ¶ 16; Reda v. Advocate Health Care, 199 Ill. 2d 47, 60 (2002); Norskog v. Pfiel, 314 Ill. App. 3d 877 (1st Dist. 2000). 3

See 45 CFR Parts 160 & 164.

4

45 C.F.R.§ 160.203(b).

5

740 ILCS 110/1 et seq.

6

Id.

7

Sangirardi v. Village of Stickney, 342 Ill. App. 3d 1, 16 (1st Dist. 2003).

8

Wisniewski v. Kownacki, 221 Ill. 2d 453, 462-463 (2006).

9

740 ILCS 110/3(a).

10

Id. 110/2.

11

Id.

12

Id.

13

Id.; see also People v. Robert P., 354 Ill. App. 3d 1051, 1060 (3d Dist. 2005). 14

Quigg v. Walgreen Co., 388 Ill. App. 3d 696, 702 (2d Dist. 2009) citing Martino v. Family Service Agency of Adams County, 112 Ill. App. 3d 593, 599-600 (4th Dist. 1982)). 15

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16

Quigg, 388 Ill. App. 3d at 703.

Suarez v. Pierard, 278 Ill. App. 3d 767, 772 (3d Dist. 1996).

17

People v. Campobello, 348 Ill. App. 3d 619, 627 (2d Dist. 2004). 18

19

740 ILCS 110/16.

20

Id. § 110/10(a)(8).

21

Id. §110/5(b).

22

Id. §110/5(c).

Goldberg v. Davis, 215 Ill. App. 3d 930, 942 (1st Dist. 1991), overruled on other grounds, 151 Ill. 2d 267 (1992).

23

24

Goldberg, 215 Ill. App. 3d at 942.

Norskog v. Pfiel, 197 Ill. 2d 60, 79, (2001).

25

26

740 ILCS 110/10(b).

27

Id.

28

Id. §110/10(a).

29

Id. §110/10(a)(1).

30

Id.

31

Id.

32

Norskog, 314 Ill. App. 3d at 883.

33

Reda, 199 Ill. 2d at 58.

34

Id.

35

Id.

Thiele v. Ortiz, 165 Ill. App.3d 983, 994 (1st Dist. 1988).

36

108, 113 (1st Dist. 1991).

Id. §110/10(a)(3).

65

Id.at 109.

66

Id. at 115.

67

D.C. v. S.A., 178 Ill. 2d 551, 566 (1997).

68

Id. at 555.

69

Id.

70

Id.

71

Id.

72

Id.

73

44 45 46 47 48 49 50 51

52

Id. at 556.

Id. Id. §110/10(a)(4). Id. Id. §110/10(a)(6). Id. §110/10(a)(7). Id. Id. (emphasis added) Id. §110/5(b). Id. §110/10(a)(1).

74

Id. at 566.

75

Id. at 567.

76

Id. at 568.

77

56

Id. at 570.

78

See Deprizio, 2014 IL App (1st) 123206, ¶ 30; People v. Gemeny, 313 Ill. App. 3d 902, 911-912 (2d Dist. 2000); Reda, 199 Ill. 2d at 62.

79

53 54 55

57

740 ILCS 110/10(a)(1).

58

Id.

59

See 740 ILCS 110/11(iv)(disclosure necessary to collect sums or payment for services rendered); 740 ILCS 110/11(vii) (when necessary to comply with the requirements of the federal census); 740 ILCS 110/11(viii) (when necessary to prevent harm when the recipient has made a specific threat of violence); 740 ILCS 110/11(ix-xii) (in accordance with certain Acts involving sex offenders, crime victims, and abused or disabled adults). 60

37

Reda, 199 Ill.2d at 56.

38

740 ILCS 110/10(a)(1).

39

Deprizio, 2014 IL App (1st) 123206, ¶ 27.

40

Id. ¶ 3.

62

41

Id. ¶¶ 5, 8.

63

42

Id. ¶ 28.

64

43

Maxwell v. Hobart Corp., 216 Ill. App. 3d

740 ILCS 110/10(a)(2).

61

Id. Id. Id. §110/10(a)(1)-(2).

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Id. Id. §110/10(d). Id. Id. §110/10(b). Id. §110/10(a)(1) Id. (emphasis addd).

80

Sassali v. Rockford Memorial Hospital, 296 Ill. App. 3d 80, 83 (2d Dist. 1998). 81

740 ILCS 110/10(d).

82

Id. §110/15.

83

Renzi v. Morrison, 249 Ill. App. 3d 5 (1st Dist. 1993) (therapist who voluntarily disclosed psychiatric patient’s confidential communications, as witness for patient’s spouse in divorce proceeding, could be held liable for damages). 84

Mandziara v. Canulli, 299 Ill. App. 3d 593 (1st Dist. 1998) (attorney violated the Act by serving subpoena duces tecum without first obtaining court order, even though subpoena called for records to be produced to trial court for in camera review). 85

740 ILCS 110/16.

86

45 C.F.R. §160.203.

87

Sassali, 296 Ill. App. 3d at 82.

88