Med mal litigant campaigns for Cueto

Ann Knef Oct. 25, 2006, 5:21am

Judge Cueto

Paul Evans

Dr. Schallert (fourth from left) is pictured with Judge Cueto in a campaign flyer.

Peter Joy

A Belleville doctor's appearance in a St. Clair County judge's campaign flyer "goes beyond the pale" of ethical behavior, according to a Washington University law professor.

The doctor, family physician Joseph Schallert, M.D., is a defendant in a pending medical malpractice lawsuit before Circuit Judge Lloyd Cueto.

In a direct mail campaign piece delivered recently to county residents, Schallert was photographed with Cueto, a Democrat, and several other medical professionals who endorse Cueto's candidacy in the Nov. 7 general election.

Legal ethics professor Peter Joy said it is "absolutely not" appropriate for a judge to pose with a litigant in a campaign piece.

However, he said that state judicial ethics codes leave the decision of whether a judge can be fair and impartial up to the judge "in the first instance."

"That judge has the most input," Joy said. He added that when state supreme courts do weigh in, they typically defer to trial judges.

Joy also said that if a judge continues to preside over a case in which his impartiality is in question, one of the litigants can file a complaint with the Illinois Supreme Court.

Plaintiff's attorney Rhonda Fiss of Belleville represents a young woman suing Schallert and Memorial Hospital over alleged malpractice. The suit filed May 31, 2005, claims Schallert misdiagnosed Samondra L. Robinson's appendicitis after arriving at the hospital's emergency room on Jan. 7, 2001.

Fiss said Judge Cueto was up front about his personal and professional relationship with Schallert during court proceedings.

"He offered to recuse himself and not force me to take a substitution," Fiss said.

She added that she believed Cueto would be "completely fair" in presiding over the matter.

Cueto's Republican challenger, O'Fallon attorney Paul Evans, said he was shocked to learn that Cueto posed with a doctor who has a pending case in his court.

"I'm shocked and dismayed at such contact by a judge with a litigant with a pending case in front of him," Evans said.

"Any type of direct contact with litigants should be avoided, let alone for campaign purposes," he said. "It appears to suggest that the doctor is expecting some benefit from appearing with the judge."

According to the Illinois Supreme Court's Code of Judicial Conduct, "A judge should avoid impropriety and the appearance of impropriety in all of the judge's activities."

Rule 62, Canon 2 further states, "A judge should respect and comply with the law and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

Robinson, of Cahokia, was a minor at the time she was treated at the hospital. She claims Schallert diagnosed her as having constipation and a viral sydrome, and that because of the alleged negligence she had to undergo extensive surgery to repair an abscess formation and peritonitis.

On Sept. 7 Cueto ordered the plaintiff to respond to defendants' outstanding discovery requests within 14 days or the case will be dismissed for want of prosecution.

If plaintiffs do not comply, the case could be dismissed at a hearing set Dec. 11.

Cueto is seeking election, rather than retention, to a six-year term in the 20th Circuit. In a retention race, a sitting judge needs 60 percent of the vote to be retained, whereas in an election a judge needs only one more vote than an opponent. In 2000 Cueto was retained with 63 percent of the vote.

Other St. Clair County judges running for retention in 2000 fared better. Judge Jan Fiss got 75 percent; Judge Milton Wharton received 78 percent of the vote. Fiss and Wharton are running for retention Nov. 7.


Evans' campaign got a $5,000 shot in the arm from the campaign coffers of State Sen. Frank Watson (R-Greenville) Monday, bringing his fund-raising total since July 1 to $23,942. He had $5,072.39 available at the beginning of July.

The Illinois Civil Justice League's political action committee Justpac contributed $14,000; Joe Behnken of O'Fallon gave $1,000; O'Fallon mayor Gary Graham contributed $500 and the SEIU Local gave Evans $500.

On the other hand, Cueto began the reporting period with $73,286.68. He raised $4,100 between July 1 and Oct. 8, most of which, $3,450, came from donors who contributed less than $150 each.

Anthony C Raccuglia & Associates, a personal injury firm in Peru, Ill. donated $250 to Cueto.

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