Justia Lawyer Rating for Robert D. Kreisman

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At the beginning of January 2015, the Law Division of the Circuit Court of Cook County, Ill., will begin its new mandatory arbitration program for certain cases. The program is targeted for cases that have value of less than $75,000. In order to file and hear a case in Law Division, the value of the matter must exceed $50,000.

The eligibility categories of cases that will be involved in the mandatory arbitration program include breach of contract, employment disputes, including discrimination, whistleblowing cases, civil or commercial fraud or conspiracy, business interference and shareholder disputes.

The program gained approval by the Illinois Supreme Court, and then the Circuit Court Judges voted to adopt the new local rule in December 2014. The presiding judge of the Law Division is Judge James T. Flannery Jr., who said that judges would begin referring cases at the start of 2015. Arbitration sessions will begin in April or May 2015.

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Illinois corporations are governed by the Illinois Corporation Act (805 ILCS 5/1, et seq.) and by the company’s bylaws. In general, the governing principle of the management and control of the corporation is vested in the board of directors, which has a high duty of loyalty to the shareholders of the corporation. The board of directors has a fiduciary duty to uphold the best interests of the corporation and its owners.

It is not uncommon that the boards of directors of corporations become disenchanted with the president or other officers of a corporation. In a common fact setting, a special meeting of the board of directors is called for the sole purpose of removing the president of the corporation, who also serves as treasurer. There’s not much an officer can do to ward off such a move at the board level. The president then files the lawsuit against the board of directors and the corporation claiming that the resolution by the board removing this officer is a waste of corporate assets.

In that case the court would look to construe the corporation’s bylaws and apply the general rules of contracts, while addressing the Illinois Business Corporation Act.

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On Sept. 10, 2007, Paul Ermel was driving a semi-tractor northbound on Route 47 in Sugar Grove, Ill., when the defendant, Zachary McVeigh, who was approaching in his car from the southbound, attempted a left turn. He was trying to turn on at Waubansee Drive, which is the entry for the Waubonsee Community College. McVeigh misjudged Ermel’s truck, thinking it was stuck and stopped as part of the construction work that was going on at the area. McVeigh turned his vehicle into the front driver’s side of Ermel’s semi-truck.

Ermel, 38, alleged that the impact of the crash caused him to sustain bulging discs or aggravation of pre-existing degenerative conditions in his cervical and thoracic spine, damage to neck ligaments, cervical instability and a cervical fistula. He required two cervical fusion surgeries. The first was at the level C6-7, and the second was at the level C4-6. His alleged medical expenses were $326,136. He also lost 10 weeks of work as a Teamsters union truck driver.

The defendant McVeigh admitted negligence but contested the nature and extent of Ermel’s injuries. The defendant contended that Ermel suffered only soft tissue strains, which resolved within 4 months. It was also argued that there was a 9-month treatment gap before Ermel sought further medical care, that he continued working full time and raced a stock car during this 9-month period and that there were no recorded complaints of neurological symptoms in his medical records until 1½ years after the accident.

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All evidence is required to meet the foundation requirement of admissibility, which would include relevancy, the best evidence rule and hearsay. Under the law, the courts require authentication because before a tangible object or writing can be admitted into evidence, it must be shown that it is in fact what it claims to be. Thus evidence that is not authenticated is not relevant and must be excluded from consideration by the court.

Digital evidence has the same requirements as all other evidence in terms of authentication and foundation before it could be admitted into evidence. Digital evidence is also known sometimes as electronically stored information (ESI). That phrase was made a part of the Federal Rules of Civil Procedure in 2006. The leading case on the application of the Federal Rules of Civil Procedure and adopted by Illinois came to be in the 2007 Maryland case of Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007). In that case, magistrate Judge Paul Grimm of the U.S. District Court for the District of Maryland noted that the failure to authenticate ESI “almost always is self-inflicted injury which can be avoided by thoughtful advanced preparation.”

One of the principal problems with digital evidence is that it can be manipulated, changed, fabricated by hackers and other sophisticated software users. It is also difficult to show to the court who was responsible for creating the digital evidence, whether it was on a keyboard on a computer or by cell phone or iPad. In some mobile apps, text messages seem to come from a particular person’s telephone, when in fact they did not. But evidence authentication does not require certainty. People v. Anderson, No. 311448, 2014 W.L.1383399 at 4 n. 3 (Mich. Ct. App. April 8, 2014); State v. Mays, 729 A.2d 1074, 1079 (N.J. Super. Ct. App. Div. 1999). In these cases dealing with authenticity, the parties hired experts to testify about who was the sender or recipient of certain digital evidence.

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Dr. Linda Bluestein was a shareholder in Central Wisconsin Anesthesiology S.C. and a member of its board of directors. After losing the vote that terminated her employment contract, Bluestein filed a lawsuit against the corporation for allegedly violating three statutes that protect “employees.” Those statutes were the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. The presiding federal judge concluded, however, that Bluestein was an employer of the corporation and not an employee. The court granted Central Wisconsin’s motion for summary judgment disposing of her lawsuit.

The 7th U.S. Circuit Court of Appeals in Chicago affirmed the trial judge’s order and applied the “non-exclusive list of six factors” that the U.S. Supreme Court adopted in Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003), as criteria for determining whether a shareholder qualifies as an employee under statutes that don’t provide a “working definition” of the word.

The U.S. Court of Appeals tangled with the question of determining the meaning of the term “employee.” The Supreme Court reasoned that, when the statute (ADA) does not provide a working definition, the courts should turn to the common law test for determining who qualifies as an employee. Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003).

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On Nov. 13, 2012, Kevin York was riding his bicycle near the exit of Busse Wood Forest Preserve in the northwest suburbs of Cook County, Ill., when he was struck by a motor vehicle driven by defendant Kenneth Heffern. Heffern, a 76-year-old retiree, left the scene after the incident.

York, who was 50 at the time, suffered a torn rotator cuff, which required two surgeries. His medical expenses alone were $160,000. Heffern’s wife, Gloria, owned the motor vehicle that hit York and was sued for negligent entrustment. Negligent entrustment of a motor vehicle is a recognized cause of action in the state of Illinois. In this case, since Mrs. Heffern loaned her car to her husband, Mr. Heffern, who she knew or should have known was an unsafe driver, she was claimed to have been negligent as well. Default judgments were entered against both of the Hefferns by the presiding judge. Plaintiff’s counsel, Justin Weinrich, initiated collection proceedings against the Hefferns, including liens on their property, as well as a wage garnishment against the wife. At a bench trial, the judge entered judgment in the amount of $514,507.

Kevin York v. Kenneth Heffern, Gloria Heffern, Case No. 12 L 1223 (Cook County, Ill.).

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Shannon Brown sued the Burlington Northern Santa Fe Railway Co. under the Federal Employers’ Liability Act, 45 U.S.C. Section 51, et seq. Brown started as a laborer and worked his way to foreman, track inspector and machine operator by 2009.

In 2007, he was diagnosed with carpal tunnel syndrome in both wrists and cubital tunnel syndrome of the left elbow. In October 2007, Brown suffered a right shoulder injury but was pain-free in December 2007. In 2007 and 2008, Brown had carpal tunnel surgery to both of his wrists. In 2009, he underwent surgery on his left elbow. In January 2010, Brown returned to work without any medical restrictions. In September 2011, he left his employment at the railroad.

Brown filed a lawsuit in 2009 claiming that the cumulative trauma caused his wrists, elbow and shoulder injuries. During discovery, Brown hired Dr. David Fletcher to serve as his expert witness to give his medical opinion that the railroad caused his injuries. Dr. Fletcher graduated from Rush Medical College in Chicago, obtained a master’s degree in public health and was a fellow in the American College of Occupational and Environmental Medicine. He was also an assistant professor at the University of Illinois and one of two doctors serving on the Illinois Workers’ Compensation Commission.

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In a recent Illinois Appellate Court case, the issue was whether to deduct attorney fees and litigation expenses from the personal-injury settlement amount or judgment before calculating the 40 percent maximum that hospitals and doctors are entitled to receive as their share of lawsuit proceeds under Illinois’ Health Care Services Lien Act.

In a 2012 5th District Appellate Court decision, that court interpreted the health-care lien act as meaning that “the trial court should have begun its calculations of 40 percent for the lienholders after payment of attorney fees and costs necessary in securing the judgment.” Stanton v. Rea, 2012 IL App (5th) 110187.

However, the Illinois Appellate Court for the 1st District has ruled in a consolidated appeal that involved liens asserted by Cook County’s Stroger Hospital that “a circuit court may not subtract attorney fees and costs from a plaintiff’s recovery before calculating health-care services liens from the resulting subtotal; the calculation of the health-care services lien must be made from plaintiff’s total recovery. To that extent, the 5th District in Stanton suggested otherwise. We disagree.” That quote comes directly out of the text of the decision in the Wolf case discussed below. Justice Margaret Stanton McBride wrote the opinion.

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On Jan. 9, 2014, a tank at Freedom Industries in Charleston, W.Va., leaked coal-cleaning chemicals into the Elk River about a mile and a half upstream from a water treatment plant. Tap water in the area began to smell like licorice. The water also had a blue-green color. Drinking the water was prohibited for several days. Freedom Industries filed for bankruptcy protection eight days after the spill.

The top executive of the company has been alleged to have lied about his role with the company to protect his personal wealth of nearly $8 million from lawsuits. The FBI is investigating.

Freedom Industries’ president, Gary Southern, repeatedly told investigators he had little to do with the company before it was sold a few weeks prior to the January 2014 chemical spill.

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The U.S. Court of Appeals in Chicago has affirmed a decision of the U.S. District Court for the Northern District of Illinois dismissing a lawsuit against a Wal-Mart store for injuries suffered by Kristen Zuppardi. She went to the Wal-Mart store in Champaign, Ill., with her brother and her son on June 15, 2010. When she entered the store, Ms. Zuppardi took a shopping cart from the front of the store and then walked down one of the main aisles of the store. Ms. Zuppardi was on her way to the back of the store to purchase milk. As she was walking down the aisle she slipped and fell in a puddle of water on the store’s concrete floors. She filed a complaint against Wal-Mart in state court in June 2012. The case was removed to the Federal District Court by Wal-Mart for diversity of citizenship jurisdiction.

One of the Wal-Mart store’s assistant managers, George Steward, stated that he did not witness the fall, but that he knew that because the fall occurred in close proximity to the store’s back doors, Wal-Mart personnel would have promptly dealt with the puddle even if the plaintiff had not fallen.

Wal-Mart was unable to locate the customer’s incident file of this occurrence and was accordingly incapable of producing any documents related to the investigation other than five photographs depicting the location of the fall and a report submitted to Wal-Mart’s casualty claims administrator. There was no video footage available.

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