Articles Posted in Civil Procedure

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This is a case in which the U.S. Court of Appeals for the 7th Circuit in Chicago found that the defendant had contracted with an out-of-state buyer. The court found that the buyer performed all contractual obligations in his own state; however, the required sufficient minimum contacts were not found to establish personal jurisdiction in the plaintiff’s state of Wisconsin.

Marvin Greving was a Wisconsin resident who lived and ran a farm in Walworth County, Wis., since April 1971.  Greving and his wife conducted their personal and business matters only in Wisconsin.  Greving has a Wisconsin driver’s license, Wisconsin insurance and pays taxes in that state. In addition, Greving purchased all of his supplies for his farm from Wisconsin vendors.

In 2003, Greving attended a meeting at an insurance agency in Rochelle, Ill. At that meeting, Greving met Tom Wilson, a grain originator from Northern Grain LLC.  Northern Grain is organized under Delaware law, but is located in Harmon, Ill.

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Liam O’Neill bought a 2000 GMC Jimmy SUV.  On July 3, 2001, his wife, Mary, was driving home in the SUV when the vehicle suddenly stopped.  She was in the eastbound lane of a 2-lane street.  Mary attempted to restart the SUV several times but it would not start.

She called a tow truck and her husband came out to help her push the SUV off the road. Mary then turned on her hazard lights and Liam pushed the car on the driver’s side, while steering. Mary pushed from behind.

While the O’Neills were trying to move the SUV, a car driven by Raymond Martin struck the rear of the SUV.  Liam was knocked to the ground and Mary’s legs were pinned between the two vehicles, which led to her legs being amputated above the knee.  Other cars had passed the O’Neills’ SUV while it was stopped without incident. The weather was clear and there were no visual obstructions or obstacles that hindered a view of the O’Neills’ stalled vehicle. 

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The mediation of cases involves opposing positions. A mediation session begins with a brief opening statement by the mediator laying out for the parties and lawyers that the process that is about to take place will remain confidential.  The mediator in most settings will mention a few exceptions and explain confidentiality when the parties and their representatives meet in caucus, which is with the mediator in private. 

Before the mediation session begins, attorneys would be wise to inform their clients exactly what the process is all about and the distinctions between the terms — confidentiality and privilege. 

At the outset, and well before the day of mediation, the parties would be asked to review and sign the mediation agreement. Most mediation agreements contain language of confidentiality and references to privilege in outlining the mediation process.

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Lawyers are often lured into the prospect of settlement by casually agreeing to sign off on mediation agreements proposed by either the mediator or the opposite counsel. The obvious purpose of mediation is to resolve disputes that would be costly with an unpredictable result. Settlements are good for both parties in that they save time and money.  Litigation alternatives are expensive and results are unknown.

However, the importance of mediation agreements stands out in the process. State law in Illinois governs some of the inner workings of mediations. The law is found under 710 ILCS 35/, which is the Illinois Uniform Mediation Act (IUMA).

One of the advantages of mediation is confidentiality. The confidentiality aspect of mediation is that a caucus with the just mediator and a party and counsel is a conference in confidence. This condition should be set out in the agreement.  The importance of the confidentiality of mediation is that settlement communications are inadmissible, both in federal and state courts. But there are distinct differences between confidentiality and privilege should the case not settle. 

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The Illinois Appellate Court has affirmed a decision made by a Cook County Circuit Court judge regarding a twice-filed injury case.

Michael Fiorito and Joseph Bellocchio were involved in a traffic collision on Oct. 19, 2001. Fiorito was injured and hired a lawyer to sue Bellocchio. 

In August 2003, the attorney for Fiorito filed a complaint against Bellocchio in the Circuit Court of Cook County but never told Fiorito about it.  A year later, Fiorito fired his first lawyer and hired a new one.  The second attorney was unable to determine if the first attorney had filed a lawsuit and so filed a second one on his own in October 2003. 

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For as long as I have been practicing law, now 37 years, the question an expert must always be asked is whether his or her opinion is to a reasonable degree of certainty. Once that question is answered in the affirmative, the burden for the offering expert is whether the opinion that is about to be given improving the strength of the expert witness’s opinion is more probably true than not. That second question must be answered affirmatively as well. 

In a recent deposition of one of my experts, one of the defendants’ lawyers spent a great deal of time badgering the witness about what she believed the term reasonable degree of medical certainty means since it was stated in that fashion in her written opinions. The answer went something like this:  “I have never been asked this before.” The defense counsel argued with the witness, saying that she did not correctly state what he said was the “test in Illinois,” for reasonable certainty.  I am not aware of any law that requires an expert to define what reasonable certainty means before answering, since it is a set of words that are understandable on their face. This witness testified that she believed it was more probably true than not that the injury suffered by the plaintiff was caused by the negligence of the defendants.

To dig deeper in this, “reasonable certainty” is a statement that the opinion is not a guess or speculation, but the product of some scientific method or from the education, background and experience of the expert. 

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Laura Turczak and Robert Lew purchased a house in 2007. They arranged a mortgage with Wells Fargo Bank for $391,250.  They also took out a second mortgage with First American Bank for $73,335. In 2002, Lew and Turczak stopped paying the loans. 

Wells Fargo filed to foreclose its mortgage in June 2010. The same month, First American sued Lew and Turczak for repayment of the second mortgage.

On Sept. 3, 2010, Wells Fargo received a variable foreclosure order that found Lew, Turczak and First American in default.  Judgment was entered for foreclosure and sale in the total amount of $408,597.92. 

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On Sept. 24, 2006, the car being driven by Keisha Geans, who was driving while under the influence of alcohol, crashed into a concrete barrier, overturned and collided with the Miranda family car. Marco Miranda, who was 12, was left permanently disabled after suffering a serious brain injury. Geans’ blood alcohol level was .229, which is almost three times the legal limit.  Geans pleaded guilty to fourth-degree aggravated driving under the influence. The Miranda family sued for their injuries.

On Dec. 12, 2008, Universal Insurance Co., Geans’ insurer, paid the Miranda family the policy limits of $20,000. In return, the Miranda family released all claims against Geans and Universal. After the settlement was finalized, the Miranda family then filed an amended complaint adding the Walsh Group, a construction company. That was filed on Nov. 29, 2010. The Miranda family sued Walsh for negligence, alleging that the concrete barrier it placed on the side of the road was done negligently and was a contributing cause of the crash.

The Miranda family also then sued for contribution  against Geans, alleging that Geans’ driving was a proximate cause of Marco Miranda’s injuries. Geans moved to dismiss claiming that the settlement had ended any liability as to her.

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In October 2007, John Walls suffered a work injury at I-Maxx Metalworks Inc. when “a stair stringer and/or perimeter cable protection failed.”

Walls filed suit against I-Maxx, Turner Construction, Frontier Construction and against Waukegan Steel Sales. The lawsuit alleged that Waukegan Steel negligently chose not manage, operate and maintain the work premises in a safe way, failed to inspect, failed to provide a safe workplace or provide proper fall protection.

By the contract with subcontractors, I-Maxx was solely responsible for the “means, method and safety of employees while on the job site.”

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In April 2009, the plaintiffs brought a lawsuit against James W. Hall, Cassandra McCord, JWH Management Inc. and JWH Family Partnership Ltd. Right after the lawsuit was brought, another group of plaintiffs filed a separate lawsuit naming some of the same defendants and then others. 

In the first litigation — the Bernstein litigation — the defendants were sued for breach of four promissory notes in the amount of $450,000. 

In the second lawsuit, the BMD litigation, Heiman and Sussex were defendants in the second lawsuit, but not in the Bernstein litigation. The defendants in the BMD litigation moved to consolidate the two cases pointing out that in both, James W. Hall and the JWH Family Partnership were being sued for failing to honor promissory notes;  in both cases, these defendants were moving for dismissal, claiming lack of personal jurisdiction. 

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