Defense attorneys Richard Hunsaker and Debbie Champion outlined Illinois and Missouri litigation trends based on recent case law and what defense attorneys should watch for in court.

The two presented a case law update at the Illinois Associate of Defense Trial Council’s Perspectives, Predictions & Pointers seminar on Sept. 29 at Busch Stadium in St. Louis.

Hunsaker
Hunsaker

Hunsaker, of Heyl Royster in Edwardsville, outlined several new rulings out of Illinois courts that could change the scope of defense litigation.

Addressing statute of repose versus statute of limitations, Hunsaker said the Illinois Supreme Court entered a decision on Sept. 22 in Moon v Rhode where the plaintiff filed suit against two doctors. However, during litigation he received a report stating that the radiologist may have also violated the standard of care.

Hunsaker said the court now has to struggle with whether to take the general wrongful death statute of limitations of two years or accept the four-year statute of repose period based on the discovery rule. The court ended up remanding the case for more facts.

“I was a little troubled with the opinion,” he said.

He suggested that the case may result in legislative changes to law.

Also on Sept. 22 the Illinois Supreme Court found six-person juries unconstitutional when it ruled that the 1970 Constitution calls for 12 jurors.

According to the case, James Kakos and his wife sued five doctors and their employers for medical malpractice. The defendants requested a 12-member jury at trial and moved to have the recent amendment permitting six-person juries declared unconstitutional.

In regards to Illinois’ premises liability litigation, Hunsaker said that in Bulduk v Walgreens, a woman was walking down the aisle when she tripped on a floor cleaning device. She argued that it created a dangerous condition. The court agreed.

The court found that while the floor cleaning device was “open and obvious,” the defendant should have known that its customers would be distracted by the items on the shelves and may not notice the obstruction.

On the other hand, in Burns v City of Chicago a man tripped on the required ADA sensory tiles. The plaintiff claims to have been distracted by someone shouting during a political protest. The court agreed that the shouting would be distracting but ruled in favor of the defendant, saying the sensory tiles were not a trip hazard.

Missouri case law

Rather than simply focus on new Missouri case law, Champion instead looked to changes in what judges were taught in judicial college this year. She discussed seven key issues.

Discovery apex deposition rule:

Champion, of Rynearson Suess Schnurbusch & Champion in St. Louis, explained that in Missouri, litigants may call anyone they wish as a witness, but if the witness is a “top level employee,” then litigants must prove that the potential witness has discoverable information.

Judges are taught that the party seeking a protection order has the burden of proving an order is important.

“The bottom line on this is we have a little bit of guidance now, a little clear guidance, but we still have the burden,” she said.

Comparative fault:

“This one scares me,” Champion said.

In Isaiah Rider v YMCA, Champion explained that a kid was walking on a wet floor when he fell and hurt his leg, which had to be amputated. The case resulted in a $6 million verdict. However, the jury allotted 6 percent liability on the boy.

Rider appealed, arguing that he shouldn’t be held liable because there was no evidence that he should have known about the wet floor.

The Western District Appellate Court reversed the circuit court’s ruling and found YMCA was 100 percent liable.

Champion said this is important because it changed who has the burden and defendants “now have to have substantial evidence for the giving of the comparative fault instruction.”

“Your evidence can’t just be ‘kinda,’ it has to be ‘substantial,’” she said.

“I don’t think that’s what they meant to do, to alter the standard, but I’m worried about it because that is what the judges were taught,” she added.

Withdrawal instruction:

In Meyers v City of West Plains, Champion said it raises the issue of whether or not the court should allow an instruction withdrawing failure to supervise. She said the judges learned that withdrawal of instructions is generally inappropriate.

However, she said attorneys were taught that judges could withdraw issues if there is confusion.

“Bottom line is this, the judges know it’s abuse of discretion, but this most recent case has taught them to not permit withdrawal of instruction,” Champion said.

Cross examination:

During cross examination, Champion said the Mitchell v Kardesch case taught judges that “it will be the unusual case where balancing weighs in favor of evidence.”

“I think that is a misstatement of law,” she said.

In Mitchell, the doctor being cross examined lied about having his license suspended or taken away. She said parties can generally impeach a witness when his ability is questioned. However, the jury found in favor of the doctor in this case.

Default judgments:

Champion said that as a general rule, the trial court has less discretion to deny a motion to set aside default judgments than to grant it. However, she added that appellate courts are affirming a lot of sustained motions to set aside default judgments.

She explained that attorneys will have to support their default motions with evidence and affidavits explaining any open and obvious situations.

Punitive damages:

Champion said plaintiffs can’t be awarded punitive damages beyond five times the compensatory damages.

However, in Harvey v Missouri Department of Corrections, the jury awarded $200,000 in punitive damages and $22,000 in compensatory damages, which raised the question of whether the punitive damages rule applied before or after attorneys’ fees are awarded.

The judge concluded that the attorneys’ fees are included in determining punitive damages.

New jury instructions:

Champion said there are two rulings involving jury instructions that contradict one another, raising questions on how to handle situations of jury misconduct at trial.

In Smotherman v Cass Regional Medical Center, a jury returned a verdict in favor of the defendant in a slip and fall case. However, afterwards, the parties learned that the jurors checked the weather forecast and discovered that it had snowed or rained the day of the slip and fall.

The ruling was later reversed.

Champion said a jury’s verdict can be impeached when prejudice is expressed during deliberations or when additional evidence is gathered outside the courtroom.

In this case, the jury did independent investigation. Even though the information may have been important for the case, it was reversed.

However, in Waters v Meritas Health Corp., a juror brought in a newspaper with an ad praising the defendant’s lifesaving care.

The juror told the court he could still be fair and a mistrial was denied.

The jury reached a verdict in favor of the defendant. The plaintiff appealed, but the decision was upheld.

Champion said in one case the burden was on the defendant to overcome the presumption of prejudice while the other case placed the burden on the plaintiff to prove an improper influence was on the jury.

“One improper, one not. What the heck to we do with this at trial?” she asked.

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