EAST ST. LOUIS – Attorney Michael Nester of Belleville, taking a cue from a judge who found the legislature’s automatic award of prejudgment interest unconstitutional, plans to make it an issue at a medical malpractice trial in U.S. district court.
He moved to amend affirmative defenses of Holy Family Hospital in Greenville after Cook County Circuit Judge Marcia Maras found defects in the legislation.
Plaintiff Cory Daul of Luxemburg, Wisc. sued Holy Family and six physicians last year.
She claimed their negligence caused bone destruction, epidural abscess and spinal cord compression.
In a brief on July 27, Nester claimed affirmative defenses deny a right to recover even if allegations of a complaint are true.
He argued that a defense in Illinois is affirmative if it asserts new matter by which an apparent right is defeated.
He claimed that whether statutes are constitutional is paramount to the case.
“Defendant has attempted to put the plaintiff on notice of additional issues that may arise, the very purpose of pleading an affirmative defense,” Nester wrote.
Legislators enacted the law last year without debate.
It provides that a plaintiff in a personal injury or wrongful death action shall recover prejudgment interest on all damages except punitive damages; that interest begins to accrue on the date an action is filed, that in entering judgment for a plaintiff, a judge shall add interest at six percent per year for a maximum of five years, that if a plaintiff rejects a settlement offer in the year after filing, interest applies to the difference between the offer and the judgment.
It further provides an exemption for government entities.
Doctors and hospitals filed so many motions in Cook County that Presiding Judge James Flannery consolidated them in the interests of judicial economy.
He designated Maras to hear the motions, and she heard argument last October.
Maras reached a decision this May 27, finding the issue ripe for resolution because prejudgment interest had accrued since the law took effect.
She found the law violates a defendant’s right to a jury trial.
She agreed with defendants that drafters of the Illinois Constitution intended to maintain certain characteristics of a jury trial.
She found one of those characteristics is the right of a jury to determine damages.
She found persuasive authority for the position of defendants that Cook County juries were already awarding interest for the period between injury and trial.
She found the law conditions a defendant’s right to a jury trial on payment of a penalty and this purpose didn’t advance any compelling state interest.
She also found that the law violated a prohibition against special legislation, that the Constitution prevents arbitrary legislative classifications that discriminate in favor of a select group without a reasonable basis, that the Constitution prohibits the legislature from conferring a special benefit or privilege on one person or group, that the law “discriminates in favor of personal injury and wrongful death plaintiffs alone by granting a substantial benefit upon them while excluding all other similarly situated tort plaintiffs,” that plaintiffs who allege distress, fraud, conversion, and legal malpractice also desire to be fully compensated.
She found that the law discriminates between defendants in the same case, that defendants who are served more than a year after a case is filed are arbitrarily penalized and deprived of any benefit afforded by the settlement offer, and that the law might allow not so diligent plaintiffs to reap the benefit of prejudgment interest even where they have dragged their feet in the litigation.
Nester moved to amend Holy Family’s defenses on July 6, and Daul opposed the motion on July 20.
Her counsel Joshua Humbrecht of Mount Vernon argued Nester didn’t raise any affirmative matter purporting to defeat Holy Family’s liability.
Humbrecht claimed that without a finding of liability that exceeded the highest offer, Nester’s pleading wasn’t an affirmative defense at all.
In reply on July 27, Nester wrote, “The fact that a judgment has not been made in this matter is irrelevant.”
He claimed prejudgment interest has accrued and while there is no immediate consequence, it will be an issue at trial.
He claimed it creates a question of law that the court will have to rule on.
Chief District Judge Nancy Rosenstengel has set trial in January 2024.