Madison - St. Clair Record

Wednesday, August 21, 2019

Court rejects woman’s request to strike federal jury trial in vomit-slip case

Lawsuits

By John Sammon | Nov 13, 2018


BENTON – The U.S. District Court for the Southern District of Illinois rejected a plaintiff's move to strike a defendant's request for a jury trial saying the plaintiff had acted in “bad faith” in state court in notifying the defendant of the projected amount of her damage claim.

Plaintiff Toni Perrin filed a personal injury suit in St. Clair County Circuit Court in March of 2015 against Dillard’s Inc. and Dillard’s Store Services Inc., alleging that on Dec. 29, 2013, while shopping she slipped on vomit, fell and suffered multiple debilitating injuries.

The complaint stated that the incurred medical expenses from the accident were less than $50,000 but could involve added medical expenses in the future.

Perrin asserted breach of duty of the store to maintain a safe premises and requested relief in the amount of $50,000 plus costs.    

The case was removed to federal court based on “diversity of citizenship.” Under such a rule a case can be taken from state court to a federal court if the opposing parties are from different states.

A case may not be removed for diversity of citizenship more than one year after the start of a legal action unless a plaintiff acted in bad faith to prevent removal and if the damage amount in controversy is less than $50,000.

In April of 2015 the defendants received a complaint for a soft tissue back injury seeking less than $50,000 in relief. However, on Dec. 9, 2015, Perrin testified at an arbitration hearing that further back surgery might be beneficial to her injuries.

Attorneys for Dillard’s were presented a letter from Perrin’s attorney dated Jan. 31, 2017 listing damages in the amount of $350,000.

Perrin argued the defendants' attempt at removal of the case came after it was pending in the Illinois State Court for more than one year, and more than 30 days after the defendants knew of the higher damage award amount.

“Perrin had not amended her complaint to reflect seeking damages in  excess of the initial $50,000 requested relief,” the court document read. "The defendants contend Perrin failed to amend her initial  complaint in bad faith in order to prevent removal within one year as stipulated.”

Perrin argued the defendants knew or should have known the amount in controversy would exceed $75,000 based on her testimony and the submission of doctor's notes. 

Attorneys for Dillard’s countered that the notice for court removal they filed was timely and alleged Perrin had deliberately concealed facts and failed to amend her complaint in the first year of litigation that would have established her damage claim at higher than $75,000, in violation of Illinois Supreme Court rules.

The court document noted a plaintiff is required to supply proof of the damage amount in controversy if the facts are challenged by the opposing party in an appropriate manner. Further, a Supreme Court rule makes it a requirement for a party to continuously inform the other party of new or additional information when such information becomes known.

The issue became whether the “bad faith” accusation applied.

The Court determined that a note from Perrin’s doctor dated November of 2016 did not conclude that back surgery was necessary, that steroids were effective in relieving her pain and that she experienced no acute distress.

“The Court disagrees with the assertion the defendants were put on notice, and as a result the (doctor) notice does not serve as competent proof,” the Court brief stated.

As a result the defendants did not have knowledge of an increased claim for damages until January of 2017 the Court determined. The Court decided Perrin had acted in bad faith by failing to disclose the changed amount in controversy within one year of the start of litigation.

The plaintiff’s motion to strike a jury trial in the U.S. District Southern Illinois Court was denied.  

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