Articles Posted in Civil Procedure

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An industrial design firm, nClosures, produced metal cases for tablet computers, such as the iPad. Ian LeBlanc designed a case for nClosures in early 2011 called the Rhino Elite. In May 2011, the co-founders of nClosures attended a tradeshow in Chicago to showcase the Rhino Elite prototypes.

At the tradeshow, the co-founders Daniel Gorman and Daniel McKean met with Greg Carlson, CEO of Block and Co. Block manufactured metal cash drawers but was interested in entering into the tablet enclosure market. Carlson approached Gorman and McKean about a possible relationship. At a May 24, 2011 meeting, the two companies signed a confidentiality agreement regarding the potential deal between them.

After signing the agreement, nClosures gave Block the design files for the Rhino products. The parties then attempted to negotiate a written contract concerning the manufacture and sale of the tablet enclosures.

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In a case that involved thousands of toxic tort liability cases, the Illinois Appellate Court has ruled that an industrial manufacturer must turn over documents it alleged were privileged to a company indemnifying it.

In March 1999, automotive systems manufacturer BorgWarner Inc. acquired Kuhlman Corp. and its subsidiaries, including Kuhlman Electric Corp (KEC).

Since the 1950s, KEC has operated a facility in Mississippi that produces electrical transformers. As part of the Kuhlman Corp. sale, KEC represented that there was no soil contamination on its Mississippi property.

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In a commodities fraud case, it was contended by the plaintiff, the Commodity Futures Trading Commission (CFTC), that previous versions of a defendant expert’s report should be produced and not be privileged because of communications between the lawyer and this expert witness.

In 2010, the work-product privilege provided by Federal Rule of Civil Procedure 26(b)(4)(B) and (C) was extended to cover drafts of reports from experts with three exceptions. This privilege extends to communications between lawyers and experts.

The CFTC argued that the defendants “should be deemed to have forfeited Rule 26(b)(4)’s work-product protection because there is evidence that defendants’ counsel participated in drafting sections of the report.” The U.S. magistrate judge handling this U.S. District Court case rejected the CFTC’s forfeiture argument stating: “The CFTC’s approach would require an analysis of the degree of counsel involvement (both quantity and quality) in the drafting of the report. Such an analysis would necessarily require production of all of the drafts of the report for comparison, as well as production of all, or virtually all, communications between expert and counsel. The drafters intended Rule 26(b)(4)(B) and (C) to protect against that discovery.”

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On Aug. 2, 2005, Brandy Pirrello was a resident at Maryville Academy, a facility that houses and treats minors with behavioral problems. At the time, Brandy was 16 years old. She had been admitted to the facility in early 2005 and had been diagnosed with bipolar disorder and was at risk of suicide or self-harm. On Aug. 2, 2005, Brandy leaped from her second-story window, landed on a cement patio and seriously injured herself.

On July 17, 2007, Brandy turned 18 years old. The day before, she filed a lawsuit against Maryville. Brandy claimed that Maryville had been negligent in choosing not to take precautions against the risk that she would try to hurt herself. Brandy was seeking compensation for the expenses that she incurred due to her hospitalization and related medical expenses.

However, the injury and the bulk of the expenses incurred between the ages of 16 and 18 and as such, fell under Illinois Family Expense Act. By the terms of the act, the responsibility for paying for Brandy’s medical care was her parents’ responsibility rather than Brandy herself. Therefore, her parents had the right to sue. Brandy’s parents did not join her as a plaintiff in the lawsuit. Brandy’s parents divorced when she was 8, and Brandy was on her father’s health insurance at the time of her injuries. Brandy’s father indicated at a deposition that he did not intend to be involved in her lawsuit.

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Lawyers who handle jury trials prepare their cases typically by reviewing all of the depositions, all of the issues of damages, the pleadings, the written discovery, the law that applies and the jury instructions that may be used. That would be just the start. Some lawyers, like me, abstract all of the depositions, which mean a summary by page is made for each deposition transcript. That allows the lawyer to both read again the transcripts of depositions that may have been taken some years ago and now refresh the memory of the lawyer who may call the witness either as a witness on direct examination or a witness that may be called by the opposition and cross-examined during the trial.

Lawyers spend a lot of time doing all of this work in reviewing the case, meeting with the clients, re-reading the file, the medical records, the photographs and other evidence, the preparation of demonstrative evidence, the preparation of visuals such as large blow-ups or use of computers to generate images for the jury, all the while perhaps spending little time on preparing the case for the jurors in anticipation of what they will discuss in the jury room.

In my practice before trial I utilize the benefits of a focus group, which would be a method to test-drive the elements of the case before an uninterested, unbiased group just like the jury, to evaluate strengths and weaknesses of the case. The discussions that these practice jurors have are many times the same kinds of discussions and deliberations that take place at the end of the trial in the jury room.

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Hennessy Industries was a car part manufacturer. It was sued frequently for asbestos-related personal injury claims. Hennessy sought insurance coverage for these claims from National Union Fire Insurance Co. The companies entered into a cost-sharing agreement in 2008. However, as the lawsuits and claims came in, Hennessy asked National Union to indemnify its settlements and defense costs. To resolve their differences about what was owed, Hennessy demanded arbitration under the agreement. Illinois law would be applied.

Hennessy filed a lawsuit against National Union under the Illinois Insurance Code, 215 ILCS 5/155(1), which provides that, in cases involving vexatious and unreasonable delay, the court may award reasonable attorney fees, other costs, plus an additional amount.

Hennessy claimed that National Union’s delays in providing coverage were vexatious and unreasonable. The federal district court judge in Chicago declined to dismiss the case, acknowledging a provision that “the arbitrator shall not be empowered or have jurisdiction to award punitive damages, fines or penalties,” but held that Hennessy’s claim arose under statutory law rather than under the cost-sharing agreement.

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In September 2008, Erica Perkins was involved in a car crash while driving a car owned by Beverly Perkins. LaTonya Reese and Kionna Griffin sued Erica Perkins for the injuries they suffered in the crash.

American Access Casualty Co. issued a non-owner’s insurance policy to Erica Perkins and provided a defense to Erica against each of the complaints filed against her. However, the insurance company required Erica to cooperate with American Access and to answer all questions and provide any written proofs that American Access required.

American Access charged that Beverly Perkins regularly let Erica drive without adding her as a primary insured. American Access alleged that the Perkinses have been uncooperative, choosing not to answer questions or cooperate with American Access’s investigation. As a result, American Access filed for a declaratory judgment against Erica, Reese and Griffin seeking a judicial declaration that American Access owed no duty to defend Erica because the car was not a “non-owned automobile.”

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Mary Dicks died on Sept. 25, 2012. Her granddaughter, Jennifer Barber, was her closest living relative and her only heir. Barber claimed that Dicks died intestate and filed a petition to be named administrator of her estate.

However, Allison Ferconio, who was Dicks’s niece, filed a will with the Circuit Court. The will was dated May 23, 2012 naming Ferconio as executor and left Dicks’s estate to six individuals. On that list was Ferconio, but not Barber. The will was signed and witnessed by Richard Tebik and Robert Abraham who signed a standard attestation clause.

The attestation clause indicated that the will was signed in the presence of each of the two witnesses. There was a second attestation clause, claiming that Dicks signed the document as her will and acknowledged her signature in the presence of both witnesses. The court admitted the will and named Ferconio as her executor. Barber filed a request for a formal proof of will seeking the testimony of Tebik and Abraham.

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According to the Illinois Appellate Court, a corporate condominium association that was dissolved is in a legal standing the same as that of a dead natural person such as found in the case of Markus v. Chicago Title & Trust, 373 Ill.557 (1940).

Under Illinois §12.80 of the Business Corporation Act of 1983, a five-year window is open for suing a corporation on any claim that existed or liability that was incurred before the dissolution of the company.

In this particular case, the issue was whether (a) two subcontractors who are dissolved and allegedly botched work on a condominium project and (b) the general contractor who wasn’t sued by the condominium association until more than five years after the subcontractors closed shop. Does §12.80 block the general contractor from filing an indemnification, contribution claim against the defunct contractors, or do “equitable considerations” extend the deadline?

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On Oct. 10, 2008, 12-year-old Ryan Walsh and his cousin were riding their bikes to school at Thompson Junior High School in Oswego, Ill.  They were traveling northbound on the sidewalk along Boulder Hill Pass.  Ryan was crossing the school’s driveway apron when the defendant school bus full of students made a right turn into the driveway.  This caused a collision with Ryan and his bike in the crosswalk.

The impact between Ryan’s bike and the school bus occurred between the bicycle and the passenger side of the bus immediately behind the front tire.  This caused Ryan to become lodged underneath the bus and be dragged 10-15 feet, according to the bus driver.

Ryan sustained a right-sided L-5 transverse process fracture, right-sided S-1 fracture, puncture wound to the right buttocks, road rash and abrasions to his hands, arms and legs.  Ryan later developed permanent degeneration of his lumbar spine with a bulging L4-5 disc.  His medical bills were $49,452.

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