An appeal is under way following attorney Gregory Tobin and his law firm's summary judgment win in a legal malpractice case brought by a former client that has been entangled with an investigation by the Attorney Registration and Disciplinary Committee of the Illinois State Supreme Court (ARDC.)

Plaintiff Jesse Berry filed his notice of appeal July 7 six days after Madison County Circuit Judge Andreas Matoesian granted summary judgment to Tobin and his firm, Pratt & Tobin, P.C. of Edwardsville.

Berry filed a legal malpractice suit against the Tobin defendants in 2009.

In that suit, Berry alleges that Tobin and his firm never filed a Federal Employer's Liability Act (FELA) suit on his behalf as promised.

Berry was seeking to file the underlying claims against Norfolk Southern Railroad Company due to an alleged knee injury allegedly caused by walking on ballast during his 30 years with the company.

The plaintiff alleges the defendants' negligence doomed later attempts to pursue his claims.

The ARDC has also been investigating Berry's claims.

However, a letter from Peter Rotskoff, chief of litigation for the ARDC, sent to Matoesian on May 31 states that the body is staying its investigation pending the outcome of the civil case in Madison County.

Matoesian had partially stayed the suit earlier this year due to the ARDC investigation.

The stay was lifted following the May 31 Rotskoff letter.

The defendants filed a move seeking summary judgment in the suit June 20.

In that filing, the defendants note that in order to sustain his legal malpractice case, the plaintiff must prove he would have been successful in litigating the underlying FELA claim.

The defendants then point to Berry's knowledge beginning in November 2000 of knee issues and he did not retain the law firm until five years afterward.

"His FELA claim was therefore time-barred before he retained Defendants," the motion reads.

Berry argues in his June 30 response to the summary judgment move that the defendants are wrong in their application of the FELA statute of limitations.

"Defendants err, and their motion for summary judgment should be denied, because plaintiff did not become aware that his left knee injury aggravation was caused by the railroad's actionable negligence until he was informed by his orthopedic specialist on September 13, 2002 that he 'would still be getting along okay if there had not been a change in his work requirements,'" the plaintiff argues in the response.

"Defendants' reasoning in their motion for summary judgment fails, because the injuries plaintiff suffered to his left knee after his job changed in January 2002 raised a new FELA cause of action once plaintiff's supervisors refused to give him a less injurious job – or suitably protect and supply protective equipment – after he informed them, in the middle of 2002, that the new job might well be harming his left knee."

The plaintiff also points to violations of the Illinois Rules of Discovery allegedly committed by the defendants and other issues with the Tobins pursuit of his FELA case.

Matoesian entered his order granting the summary judgment July 1.

Berry's case has now gone to the Fifth District Appellate Court in Mount Vernon.

Robert Owen represents Berry.

Robert Shultz and others represent the defendants.

The case is Madison case number 09-L-422.

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