BSCR Firm News/Blogs Feed Jul 2020 00:00:00 -0800firmwise Circuit Paves the Way for Illinois Biometric Law Suits in Federal Courts Jun 2020Illinois Law Blog<p>In <i>Bryant v. Compass Grp. USA, Inc.</i>, 958 F.3d 617 (7th Cir. 2020), the federal court of appeals for the Seventh Circuit answered in the affirmative the question of whether, for federal-court purposes, a person aggrieved by a violation of Illinois&rsquo; Biometric Information Privacy Act (BIPA) has suffered the kind of injury-in-fact that supports Article III standing.</p> <p>Plaintiff Christine Bryant&rsquo;s workplace installed &ldquo;Smart Market&rdquo; vending machines owned and operated by the defendant Compass Group U.S.A., Inc. Rather than accept cash, users had to establish an account using a fingerprint. During orientation, plaintiff&rsquo;s employer instructed her and others to scan their fingerprints into the Smart Market system to establish a payment link to create user accounts. In violation of section 15(a) of BIPA, Compass never made publicly available a retention schedule and guidelines for permanently destroying the biometric identifiers and information it was collecting and storing. In addition, in violation of section 15(b) of BIPA, Compass (1) never informed Bryant in writing that her biometric identifier was being collected or stored, (2) never informed Bryant in writing of the specific purpose and length of time for which her fingerprint was being collected, stored, and used, and (3) never obtained Bryant&rsquo;s written release to collect, store, and use her fingerprint. Plaintiff asserted that Compass&rsquo;s failure to make the requisite disclosures denied her the ability to give informed written consent as required by BIPA, leading to the loss of the right to control her biometric identifiers and information. Seeking redress for this alleged invasion of her personal data, Bryant brought a putative class action against Compass pursuant to BIPA&rsquo;s provision providing a private right of action in state court to persons &ldquo;aggrieved&rdquo; by a violation of the statue.</p> <p>Compass removed the case to federal court on the basis of diversity of citizenship. Plaintiff Bryant moved to remand to state court, claiming that the federal district court did not have subject-matter jurisdiction because she lacked the concrete injury-in-fact necessary to satisfy the federal requirement for Article III standing. The district court agreed with plaintiff and remanded to the state court.</p> <p>On appeal, the Seventh Circuit noted that for Bryant to have Article III standing, she must satisfy three requirements: (1) she must have suffered an actual or imminent, concrete and particularized injury-in-fact; (2) there must be a causal connection between her injury and the conduct complained of; and (3) there must be a likelihood that this injury will be redressed by a favorable decision. Only the first of these requirements was at issue in the case in that the second and third requirements were clearly satisfied.</p> <p>The appellate court ultimately concluded that Bryant has Article III standing as to her action for violations of section 15(b), but not for violations of section 15(a). Compass&rsquo;s failure to abide by the requirements of section 15(b) before it collected users&rsquo; fingerprints denied Bryant and others like her the opportunity to consider whether the terms of that collection and usage were acceptable given the attendant risks. Going beyond a failure to satisfy a purely procedural requirement, Compass withheld substantive information to which Bryant was entitled and thereby deprived her of the ability to give <i>informed</i> consent as mandated by section 15(b). The appellate court found this deprivation is a concrete injury-in-fact that is particularized to Bryant and others like her, thereby meeting the Article III requirement for standing.</p> <p>In contrast, the section 15(a) claim involves a duty owed to the public generally: the duty to make publicly available a data retention schedule and guidelines for permanently destroying collected biometric identifiers and information. This provision is not part of the informed consent regime of the statute, and Bryant alleges no particularized harm to herself or others that resulted from the alleged violation of section 15(a). Thus, she lacks standing to pursue that claim in federal court.</p> This opinion finally answers the BIPA standing question but does so differently than many federal district courts that have remanded BIPA suits as alleging mere procedural violations without concrete, particularized harm. While this ruling is in line with the Ninth Circuit&rsquo;s ruling in <i>Patel v. Facebook, Inc.</i>, which we reported on <u><a href=";an=96893&amp;format=xml&amp;stylesheet=blog&amp;p=5258">here</a></u>, it is at odds with other rulings, including one from the Second Circuit. This may open the door for U.S. Supreme Court review as it potentially affects a large number of lawsuit across the country.&nbsp; Supreme Court Ruling Emphasizes Necessity of Post-Trial Motion in the Preservation of Trial Court Error Jun 2020Illinois Law Blog<p>In <i>Crim v. Dietrich</i>, 2020 IL 124318, the Illinois Supreme Court found that in a health care liability case, the lower appellate court&rsquo;s mandate remanding the case for a new trial did not include a new trial on the professional negligence claim. The plaintiffs, who filed both a professional negligence claim and a claim alleging failure to obtain informed consent, failed to file a post-trial motion after a jury verdict on the professional negligence claim.&nbsp;While the lower appellate court issued just a general mandate for a new trial and the appellate court later clarified that it intended that mandate to allow for a retrial of both claims, the Supreme Court held the plaintiffs forfeited their right to a retrial on the professional negligence claim.&nbsp;In other words, the mandate could not have included a mandate for a new trial on the professional negligence claim because the right to appeal that claim had already been lost by failure to file a post-trial motion.&nbsp;</p> <p>The Crims, acting on behalf of their biological son, filed a medical malpractice claim against defendant Dr. Gina Dietrich alleging two claims: (1) that she failed to obtain Mrs. Crim&rsquo;s informed consent to perform a natural birth despite possible risks associated with her son&rsquo;s large size; and (2) that defendant negligently delivered the baby, causing him injuries.&nbsp;The trial court granted defendant&rsquo;s motion for directed verdict on the issue of informed consent on the basis that the plaintiffs needed, but lacked, expert testimony that a reasonable patient would have pursued a different form of treatment.&nbsp;Thereafter, following additional evidence, the jury returned a verdict in defendant&rsquo;s favor and against plaintiffs on their remaining claim of professional negligence.&nbsp;The plaintiffs did not file any post-trial motions, and instead filed a timely notice of appeal.&nbsp;</p> <p>In their brief before the Appellate Court for the 4th District, the plaintiffs framed their appeal as a review only on whether the circuit court erred in issuing a directed verdict on the informed consent claim, expressly stating that their appeal is not based upon the verdict of the jury.&nbsp;The 4th District ruled that the trial judge incorrectly issued the directed verdict and granted a new trial.&nbsp;The appellate court entered a general mandate reversing and remanding to the circuit court for such other proceedings as required by the order of the appellate court.&nbsp;</p> <p>Plaintiffs claimed that this general mandate of remand and retrial entitled them to a new trial on not only the informed consent claim, but also on the professional negligence claim.&nbsp;According to plaintiffs, they should be allowed to retry both claims because the claims were intertwined, and the trial court tainted the rest of their case when it erroneously granted defendant a directed judgment.&nbsp;</p> <p>The Illinois Supreme Court, however, disagreed, stating that &ldquo;the trouble with [plaintiff&rsquo;s] argument is the simple fact that they never filed a post-trial motion pursuant to section 2-1202.&rdquo;&nbsp;Section 2-1202 of the state Code of Civil Procedure requires litigants to challenge a jury&rsquo;s verdict with post-trial motions even when the trial court enters a partial directed verdict as to other issues in the case.&nbsp;&ldquo;The failure by plaintiffs to file a post-trial motion challenging the jury&rsquo;s verdict deprived the circuit court of an opportunity to correct any trial court errors involving the jury&rsquo;s verdict and undermined any notion of fairness to defendant on appeal.&rdquo;&nbsp;</p> <p>Notably, this Supreme Court ruling came after the appellate court answered a certified question by saying it had intended the plaintiffs&rsquo; negligence claims to be retried when it reversed and remanded the trial court&rsquo;s directed judgment.&nbsp;</p> <p>In a dissenting opinion, Justice Thomas Kilbride wrote that the majority&rsquo;s holding confuses a party&rsquo;s forfeiture of an argument with a reviewing court&rsquo;s power to grant relief.&nbsp;He also felt that the Court should not have entertained the appeal at all because it was too case-specific and not &ldquo;of general importance.&rdquo;&nbsp;</p> <p>The case emphasizes the importance of post-trial motions in preservation of error for purposes of appeal.&nbsp;Prudent practitioners should raise in post-trial motions all issues which might be the basis for arguments of trial court error later.</p> District Court in Illinois Requires Plaintiffs to Arbitrate Biometric Privacy Lawsuit Jun 2020Illinois Law Blog<p>Recently, the District Court for the Northern District of Illinois again addressed an issue related to the Illinois Biometric Information Privacy Act. As previously discussed in this <a href=";an=106833&amp;format=xml&amp;stylesheet=blog&amp;p=5258">blog post</a>, this court has issued other rulings on issues arising under the Act.&nbsp;In <i>Miracle-Pond v. Shutterfly, Inc.</i>, the plaintiff, Vernita Miracle-Pond, registered for a Shutterfly account using the Shutterfly Android mobile app in August 2014. &nbsp;In order to install the app, the plaintiff was required to accept Shutterfly&rsquo;s terms of use. &nbsp;In the version of the terms of use accepted by the plaintiff, Shutterfly reserved the right to revise the terms of service without notice to Shutterfly users.&nbsp;Shutterfly was merely required to post the new terms.&nbsp;In May 2015, Shutterfly revised its terms of use, adding an arbitration provision.&nbsp;Every version of Shutterfly&rsquo;s terms of use since May 2015, including the most recent version at the time of the court&rsquo;s ruling, included an arbitration provision.&nbsp;Each version&rsquo;s arbitration clause stated:</p> <p style="margin-left: 40px;">NOTE: THIS TERMS OF USE CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER PROVISION IN THE &lsquo;ARBITRATION&rsquo; SECTION BELOW THAT AFFECTS YOUR RIGHTS UNDER THE TERMS OF USE AND WITH RESPECT TO ANY DISPUTE BETWEEN YOU AND US AND OUR AFFILIATES.</p> <p align="center" style="margin-left: 40px;">***</p> <p style="margin-left: 40px;">[Y]ou and Shutterfly agree that any dispute, claim or controversy arising out of or relating in any way to the Shutterfly service, these Terms of Use and this Arbitration Agreement, shall be determined by binding arbitration.</p> <p>In June 2019, Ms. Miracle-Pond and another plaintiff filed suit against Shutterfly, individually and on behalf of proposed class members, alleging that Shutterfly violated the Illinois Biometric Information Privacy Act by using facial-recognition technology to extract biometric identifiers for &ldquo;tagging&rdquo; individuals and by selling, leasing, trading, or otherwise profiting from the plaintiffs&rsquo; and proposed class members&rsquo; biometric identifiers.&nbsp;</p> <p>Nearly three months after the plaintiffs filed suit, Shutterfly sent an email to all of its users nationwide, notifying its users that Shutterfly&rsquo;s terms of use had been updated.&nbsp;The email further stated that Shutterfly had updated its terms of use to clarify users&rsquo; legal rights in the event of a dispute and how disputes would be resolved in arbitration.&nbsp;Finally, the email instructed users that if they did not close their accounts by October 1, 2019, or if they otherwise continued to use Shutterfly&rsquo;s app and/or website, they would be deemed to have accepted Shutterfly&rsquo;s terms of use. &nbsp;Shutterfly&rsquo;s records indicated that Ms. Miracle-Pond opened Shutterfly&rsquo;s email and that her account remained open as of October 2, 2019.</p> <p>In response to the lawsuit, Shutterfly filed a motion to compel arbitration.&nbsp;The plaintiffs filed a motion for curative measures related to Shutterfly&rsquo;s September 2019 email to all users.&nbsp;In ruling on the motion to compel arbitration, the court first examined whether a valid arbitration agreement existed.&nbsp;In addition to Illinois&rsquo;s general contract principles, the court examined factors specific to Internet agreements to determine if a valid arbitration agreement existed.&nbsp;Specifically, the court analyzed whether the: 1) web pages presented to the plaintiff adequately communicated all the terms and conditions of the agreement, and 2) circumstances supported the assumption that the plaintiff received reasonable notice of those terms.</p> <p>The plaintiffs argued that Ms. Miracle-Pond merely agreed that her use of Shutterfly&rsquo;s website and services would comply with Shutterfly&rsquo;s terms of use, not that she would be bound by the term of use.&nbsp;In other words, she claimed that Shutterfly improperly used what is known as a &ldquo;browsewrap&rdquo; agreement, rather than a permissible &ldquo;clickwrap agreement.&rdquo;&nbsp;A browsewrap agreement is an agreement where users are bound by a website&rsquo;s terms by merely navigating or using the website; the user is not required to sign an electronic document or explicitly click an accept or agree button.&nbsp;By contrast, a clickwrap agreement requires users to click a button or check a box that explicitly affirms that the user has accepted the terms of use.&nbsp;In rejecting the plaintiff&rsquo;s argument, the court explained that Shutterfly presented the terms of use to the plaintiff for viewing and provided an &ldquo;accept&rdquo; and &ldquo;decline&rdquo; button.&nbsp;Thus, the court concluded that Shutterfly&rsquo;s terms of use constituted a valid clickwrap agreement, and that Ms. Miracle-Pond agreed to be bound by the terms of use.</p> <p>The plaintiffs further argued that the terms of Shutterfly&rsquo;s arbitration agreement were illusory because they were subject to unilateral modification.&nbsp;The court rejected this argument, explaining that Illinois law allows for arbitration provisions that may be changed unilaterally.&nbsp;Shutterfly&rsquo;s terms of use contained a valid change-in-terms provision that informed users that Shutterfly had the right to unilaterally modify its terms, that modified terms would be posted to its website, and that continued use of Shutterfly products constituted an acceptance of the modified terms.&nbsp;The court explained that Ms. Miracle-Pond&rsquo;s continued use of Shutterfly after it introduced the arbitration agreement to its terms of use constituted an acceptance of the agreement.</p> <p>The plaintiffs also claimed that Shutterfly was attempting to improperly apply the arbitration agreement on a retroactive basis, given Shutterfly&rsquo;s September 2019 email to all of its users regarding arbitration of disputes.&nbsp;The court found that Shutterfly was not attempting retroactive application of the arbitration agreement, finding that the plaintiff accepted the agreement when she continued using Shutterfly after it introduced the arbitration agreement in 2015.</p> <p>Ultimately, this case illustrates the importance of valid arbitration agreements.&nbsp;As discussed in prior Baker Sterchi blog posts, there has been a significant increase in litigation arising under the Illinois Biometric Information Privacy Act since 2019.&nbsp;This litigation is extremely risky for companies due to the manner in which courts have interpreted the Act&rsquo;s standing requirement and the penalties imposed by the Act.&nbsp;If used properly, arbitration agreements give companies an opportunity to avoid the costs and uncertainty of litigating these claims in court.&nbsp;Therefore, if your company is named in a biometric lawsuit, it is imperative to determine if there are any grounds to require arbitration of the dispute.&nbsp;Additionally, to the extent companies that utilize biometric technology do not currently have arbitration agreements in place, they should consider implementing such an agreement. &nbsp;&nbsp;&nbsp;</p> <p>The complete citation for this case is <i>Miracle-Pond v. Shutterfly, Inc.</i>, 2020 U.S. Dist. Lexis 86083 (N.D. Ill. May 15, 2020).&nbsp; &nbsp;</p> and Possible Changes to Workers' Compensation Laws in Illinois and Missouri Jun 2020Illinois Law Blog<p>As employees slowly begin to return to work in &ldquo;the new normal&rdquo; following mandatory stay-at-home orders across the country, employers in Illinois and Missouri are busy establishing policies in compliance with opening orders and guidelines.&nbsp; To mitigate the risk of potential workers&rsquo; compensation claims, employers should be aware of possible changes to workers&rsquo; compensation laws due to COVID-19 exposure in the workplace.</p> <p>On April 13, 2020, the Illinois Workers Compensation Commission passed an emergency rule in response to the COVID-19 pandemic.&nbsp; This rule created a rebuttable presumption of compensability in favor of employees classified as first responders and essential front-line workers during the COVID-19 state of emergency.&nbsp; For those individuals, the rule imposed a rebuttable presumption that the individual&rsquo;s exposure arises out of and in the course of employment and is causally connected to their employment.&nbsp;</p> <p>In response, the Illinois Manufacturers Association and Illinois Retail Merchants Association requested a Temporary Restraining Order, which was granted on April 24, 2020.&nbsp; The emergency rule was thereafter withdrawn by the IWCC.&nbsp; COVID-19 may still be considered a compensable occupational disease under the Illinois Workers&rsquo; Compensation Act, but there is no longer a rebuttable presumption of compensability following withdrawal of the rule.&nbsp;</p> <p>In Missouri, Governor Mike Parson directed the Department of Labor and Industrial Relations to implement an emergency rule that will provide workers compensation benefits to first responders who contract COVID-19.&nbsp; On April 7, 2020, the Department of Labor and its Division of Workers&rsquo; Compensation filed an emergency rule creating a presumption that First Responders infected by or quarantined due to COVID-19 are deemed to have contracted a contagious or communicable occupational disease arising out of and in the course of the performance of their employment.&nbsp; &ldquo;First Responders&rdquo; include law enforcement officers, firefighters or an emergency medical technicians.&nbsp;&nbsp;</p> <p>The presumption created by the rule is rebuttable in the event a subsequent medical determination establishes by clear and convincing evidence that (1) the First Responder did not actually have COVID-19, or (2) the First Responder contracted or was quarantined for COVID-19 resulting from exposure that was not related to the First Responder&rsquo;s employment.</p> <p>The Labor and Industrial Relations Commission voted unanimously to approve the emergency rule on April 8, 2020, with an effective date of April 21, 2020.&nbsp; However, the rule is retroactive.&nbsp; The full text of 8 CSR 50-5.005 can be found <a href="">here</a>.</p> <p>Unlike the emergency rule attempted in Illinois, only First Responders are provided with a presumption of an occupational disease under the Missouri emergency rule.&nbsp; To date,&nbsp; no further amendments&nbsp; have been introduced to expand the presumption created by the emergency rule to&nbsp; non-First Responders, however, as more and more businesses slowly open following the lifting of the stay-at-home orders issued through Missouri, employers may find themselves receiving COVID-19-related workers&rsquo; compensation claims.&nbsp; COVID-19 has been classified as a communicable disease by the State of Missouri and communicable diseases are included in the definition of &ldquo;occupational disease&rdquo; under Missouri Workers&rsquo; Compensation Law.</p> <p>As in all states, laws and regulations related to the COVID-19 pandemic are ever-changing in Illinois and Missouri.&nbsp; The area of workers&rsquo; compensation is no exception and additional changes and expansions to the current laws are possible.&nbsp;&nbsp;&nbsp; Employers in both states should remain aware of those changes in order to better anticipate potential claims, mitigate risk and create workplaces that protect employees from exposure to the best of their ability.</p> Implements Mandatory Sexual Harassment Prevention for Employers to be Completed by December 31, 2020 Apr 2020Illinois Law Blog<p>Public Act 101-0221, the Workplace Transparency Act, amended the Illinois Human Rights Act (&ldquo;IHRA&rdquo;) and now requires Illinois employers to provide annual sexual harassment prevention training by December 31, 2020, followed by annual training thereafter. Sexual harassment prevention training is required by any employer with one or more employees and all employees must be trained regardless of full-time, part-time or intern status.</p> <p>Minimum training standards are outlined in Section 2-109(B) and include:</p> <ul> <li>An explanation of sexual harassment consistent with the IHRA;</li> <li>Examples of conduct that constitutes unlawful sexual harassment;</li> <li>A summary of relevant Federal and State statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and</li> <li>A summary of responsibilities of employers in the prevention, investigation, and corrective measures of sexual harassment.</li> </ul> <p>While the Illinois Department of Human Rights (&ldquo;IDHR&rdquo;) has developed a model sexual harassment prevention training program to be made available by April 30, 2020, employers are welcome to develop their own sexual harassment prevention training program provided it meets or exceed the minimum standards set forth by the IHRA as set forth in Section 2-109(B) above.</p> <p>In addition to the training standards outlined in Section 2-109(B), restaurants and bars must also provide employees with supplemental training that meets or exceeds the minimum training standards outlined in Section 2-110 (C) of the IHRA.&nbsp;These minimum supplemental training standards include:</p> <ul> <li>Specific conduct, activities, or videos related to the restaurant or bar industry;</li> <li>An explanation of manager liability and responsibility under the law; and</li> <li>English and Spanish language options.</li> </ul> <p>Section 2-110(B) further requires every restaurant and bar to have a sexual harassment prevention policy that includes:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <ul> <li>A prohibition on sexual harassment;</li> <li>The definition of sexual harassment under the IHRA and Title VII of the Civil Rights Act of 1964;</li> <li>Details on how an individual can report an allegation of sexual harassment internally, including options for making a confidential report to a manager, owner, corporate headquarters, human resources department, or other internal reporting mechanism that may be available;</li> <li>An explanation of the internal complaint process available to employees;</li> <li>How to contact and file a charge with the Illinois Department of Human Rights (&ldquo;IDHR&rdquo;) and United States Equal Opportunity Commission (&ldquo;EEOC&rdquo;);</li> <li>A prohibition on retaliation for reporting sexual harassment allegations; and</li> <li>A requirement that all employee participate in sexual harassment prevention training.</li> </ul> <p>Pursuant to Section 2-110(B), a written copy of the sexual harassment prevention policy must be provided to all employees within the first calendar week of the employee&rsquo;s employment.&nbsp;The policy must also be made available in English and Spanish.</p> <p>The deadline for employers to comply with the changes to IHRA is December 31, 2020.&nbsp;However, employers are encouraged to train employees as soon as possible as employers are liable for the sexual harassment conduct of new employees upon their hire. &nbsp;</p> <p>Employers are required to keep a record of all trainings which must be made available for IDHR inspection upon request.&nbsp;Failure to comply will result in a notice to show cause giving the employer 30 days to comply.&nbsp;Failure to comply within 30 days will result in IDHR petitioning the Illinois Human Rights Commission for entry of an order imposing a civil penalty against the employer, including a $500 penalty to businesses with less than 4 employees, or a $1,000 penalty to those with more than 4 employees.&nbsp;Subsequent violations can rise to a $5,000 penalty per violation.</p> <p>Illinois employers should review their current policies to ensure compliance with the recent changes to state law and implement annual training schedules to avoid future fines.&nbsp;</p> <p>Additional information regarding these sexual harassment prevention training requirements is available at the Illinois Department of Human Rights <a href="">website</a>. And if you need assistance or have questions concerning your company&rsquo;s training program, please get in touch with one of Baker Sterchi&rsquo;s labor and employment attorneys.</p> District Court Addresses Standing, Pleading Requirements in Illinois Biometric Lawsuits Mar 2020Illinois Law Blog<p>Adding to the confusion businesses face over the Illinois Biometric Information Privacy Act (&ldquo;BIPA&rdquo;), two Illinois District Court judges recently issued orders on what is required to maintain a BIPA lawsuit in federal court. In one case, Judge Robert Gettleman remanded a BIPA lawsuit to an Illinois circuit court, concluding that the plaintiff lacked standing to pursue her claim in federal court. &nbsp;In a separate case, Judge Rebecca Pallmeyer dismissed a BIPA lawsuit, finding that that plaintiff failed to allege sufficient facts to state a claim under the Act.&nbsp; These opinions seem to impose more stringent requirements on plaintiffs than the Illinois Supreme Court&rsquo;s take on BIPA in the <i>Rosenbach v. Six Flags Entertainment Corp.</i> opinion, previously addressed by BSCR <a href=";an=88848&amp;format=xml&amp;stylesheet=blog&amp;p=5258">here</a>. &nbsp;As discussed below, however, Judge Gettleman&rsquo;s ruling suggests that an argument commonly made by defendants in BIPA lawsuits could be used against them.</p> <p>In <i>Hunter v. Automated Health Sys.</i>, 2020 U.S. Dist. Lexis 29054 (N.D. Ill. Feb. 20, 2020), the plaintiff filed suit against her former employer, alleging that it violated BIPA by requiring its employees to scan their fingerprints for timekeeping purposes without taking certain measures required by the Act.&nbsp; Specifically, the plaintiff alleged that the defendant violated the Act by failing to properly inform the plaintiff in writing of the specific purpose and length of time for which her fingerprints were being collected, stored, and used; failing to provide a publicly available retention schedule and guidelines for permanently destroying the plaintiff&rsquo;s fingerprints; and failing to obtain a written release from the plaintiff to collect, capture, and otherwise retain her fingerprints.&nbsp; The employer removed the case to federal court and filed a motion to dismiss.</p> <p>In reviewing the parties&rsquo; briefs on the motion to dismiss, Judge Gettleman found a &ldquo;serious question&rdquo; existed as to whether the court had subject matter jurisdiction.&nbsp; Because the defendant removed the case, the court found it bore the burden of establishing jurisdiction by demonstrating that the plaintiff alleged an injury-in-fact.&nbsp; Relying on the U.S. Supreme Court opinion <i>Spokeo Inc. v. Robins</i>, 136 S. Ct. 1540 (2016), Judge Gettleman explained that for an injury-in-fact to exist, the injury must be &ldquo;concrete and particularized,&rdquo; meaning it must be <i>de facto</i>, or actually exist.&nbsp; In analyzing whether the plaintiff had alleged a concrete and particularized injury, the court relied on <i>Crabtree v. Experian Information Solutions, Inc.</i>, 2020 U.S. App. Lexis 2698 (7th Cir. Jan. 28, 2020), a case in which the Seventh Circuit Court of Appeals determined that the mere retention of private consumer information, absent any dissemination, does not constitute a concrete injury for standing purposes.&nbsp; In <i>Hunter</i>, the plaintiff failed to allege that the defendant disseminated her biometric information or that any data breach, identity theft, or other similar loss resulted from the collection of said information. &nbsp;&nbsp;</p> <p>The <i>Hunter</i> defendant argued that jurisdiction existed based upon the Illinois Supreme Court&rsquo;s holding in <i>Rosenbach</i>.&nbsp; In rejecting this argument, Judge Gettleman noted that <i>Rosenbach </i>established only that it is the policy of Illinois state courts to allow parties to sue under BIPA even if they cannot demonstrate that they have sustained some compensable injury beyond violation of their statutory rights for which they may seek recourse.&nbsp; It is the policy of the federal courts, by contrast, that a plaintiff must allege an actual or imminent injury to establish standing in federal court.&nbsp; According to Judge Gettleman, the Illinois Supreme Court expressly indicated in <i>Rosenbach</i> that BIPA procedural violations are not themselves actual injuries.&nbsp; Consequently, Judge Gettleman concluded that the plaintiff lacked standing at the time her case was removed because she did not allege any dissemination of her biometric information.&nbsp; Thus, the court remanded the case to the Circuit Court of Cook County.</p> <p>In <i>Heard v. Becton, Dickinson &amp; Co.</i>, 2020 U.S. Dist. Lexis 31249 (N.D. Ill. Feb. 24, 2020), the plaintiff, a respiratory therapist, filed suit against Becton, alleging that he and members of a putative class were required to use fingerprint scanners to access Becton&rsquo;s Pyxis MedStation system.&nbsp; The plaintiff further alleged that Becton violated BIPA because it never informed the plaintiff and putative class members that it was collecting, using, or storing their biometric information; failed to state the purpose and length of time for which it was doing so; failed to obtain executed written releases from them authorizing the collection of their biometric information; never provided them with a publicly available retention schedule for the permanent destruction of their biometric information; and, &ldquo;upon information and belief,&rdquo; disclosed their biometric information to &ldquo;unknown&rdquo; third parties without obtaining consent.&nbsp; Becton removed the case to the District Court for the Northern District of Illinois and moved to dismiss the complaint.</p> <p>In its motion to dismiss, Becton first argued that the biometric information at issue was exempt from the scope of BIPA.&nbsp; Specifically, Becton claimed that the information fell under the &ldquo;healthcare exemption&rdquo; contained in BIPA.&nbsp; Section 14/10 of the Act states that &ldquo;[b]iometric identifiers do not include information captured from a patient in a health care setting or information collected, used, or stored for health care treatment, payment, or operations under the federal Health Insurance Portability and Accountability Act of 1996.&rdquo;&nbsp; 740 ILCS 14/10.&nbsp; According to Becton, that section applied to the plaintiff&rsquo;s claims because the biometric information at issue was collected from healthcare workers in order to access medication.&nbsp; In addressing this argument, Judge Pallmeyer noted that she was aware of only two cases in which defendants had advanced this theory.&nbsp; In <i>Diaz v. Silver Cross Hosp. &amp; Med Ctrs.</i>, No. 2018 CH 001327 (Cir. Ct. Will Cnty. Aug. 29, 2019), the Circuit Court of Will County, Illinois, concluded that BIPA&rsquo;s healthcare exemption applied to biometric information obtained from a nurse because the information was collected, used, or stored for healthcare treatment.&nbsp; By contrast, in <i>Bruhn v. New Alberton&rsquo;s, Inc.</i>, No. 2018 CH 01737 (Cir. Ct. Cook Cnty. July 2, 2019), the Circuit Court of Cook County, Illinois, determined that the exemption did not apply to biometric information collected from healthcare workers because their biometric information is not protected under HIPPA.&nbsp; Judge Pallmeyer found the reasoning in <i>Bruhn </i>more persuasive, noting that it seemed unlikely that the Illinois legislature intended to deprive healthcare workers of a right to privacy and control over their biometric information merely because the information was being used for patient treatment.</p> <p>The court next addressed what type of action by a defendant regarding the collection of biometric information is required to trigger liability under Section 15(b) of BIPA.&nbsp; Becton argued that BIPA requires a defendant &ldquo;actively&rdquo; collect information, meaning that it did more than possess such information.&nbsp; The plaintiff argued that BIPA applies when a defendant obtains biometric information, no matter the source or the manner of collection.&nbsp; Judge Pallmeyer determined that BIPA requires a defendant to, at a minimum, take an &ldquo;active step&rdquo; to collect, capture, purchase, receive through trade, or otherwise obtain biometric information.&nbsp; The judge further concluded that the plaintiff failed to allege that Becton took any such active step.&nbsp; While the plaintiff alleged that Becton collected his biometric information, he failed to specify how, when, or any other factual detail regarding the collection.&nbsp; The plaintiff also failed to allege how his fingerprints made their way from the fingerprint scanner on Becton&rsquo;s medical device into Becton&rsquo;s systems.&nbsp;</p> <p>Judge Pallmeyer then examined whether the plaintiff alleged sufficient facts to trigger liability under Sections 15(a) and (d) of BIPA, which apply to entities in possession of biometric information.&nbsp; BIPA does not define &ldquo;possession,&rdquo; leading the judge to apply the popularly understood meaning of the term.&nbsp; Specifically, Judge Pallmeyer adopted the definition provided by the Illinois Supreme Court, which found that possession occurs when a person has or takes control of the subject property or holds the property at his or her disposal.&nbsp; <i>People v. Ward</i>, 215 Ill.2d 317, 325 (Ill. 2005).&nbsp; The judge determined that the plaintiff failed to adequately plead possession by Becton because he did not allege that Becton exercised any dominion or control over his biometric information.&nbsp; More specifically, the plaintiff did not allege that Becton could freely access his biometric information or even how Becton allegedly received the information.&nbsp; Rather, the plaintiff merely alleged that he scanned his fingerprint into Becton&rsquo;s device and Becton subsequently stored the plaintiff&rsquo;s fingerprint in its systems.</p> <p>Finally, the court dismissed the plaintiff&rsquo;s claim because the plaintiff failed to allege that Becton disclosed his biometric information.&nbsp; Section 15(d) of BIPA provides that entities in possession of biometric information cannot disclose the information except in limited circumstances.&nbsp; The plaintiff alleged only &ldquo;on information and belief&rdquo; that Becton violation Section 15(d).&nbsp; Judge Pallmeyer found this allegation insufficient to satisfy the federal pleading standard. &nbsp;</p> Overall, these rulings suggest that federal court may be a much better venue than state court for defendants in a BIPA lawsuit depending upon the allegations and factual circumstances of the case.&nbsp; As these case show, district court judges seem more likely to require more specific pleadings from plaintiffs to survive dismissal and an actual, concrete injury, as opposed to simply alleging a technical violation of a BIPA provision.&nbsp; However, the <i>Hunter </i>ruling illustrates how a defendant&rsquo;s argument regarding a lack of injury can be turned against the defendant, such that the case ultimately ends up back in state court.&nbsp; &nbsp; &nbsp; Appellate Court Reverses Plaintiffs' Verdict in Asbestos Lawsuit Mar 2020Illinois Law Blog<p>Recently, the Illinois Fourth District Appellate Court issued an <a href="">opinion</a> reversing the Circuit Court of McLean County in an asbestos lawsuit. In <i>Krumwiede v. Tremco, Inc.</i>, the court determined that the plaintiffs failed to establish at trial that the decedent&rsquo;s work with the defendant&rsquo;s products was a substantial factor in the cause of the decedent&rsquo;s illness.&nbsp;This is yet another instance in which the Fourth District has reversed the Circuit Court of McLean County in an asbestos lawsuit.&nbsp;The opinion should give defendants wary of trying an asbestos lawsuit in McLean County optimism about the potential for appellate relief.</p> <p>In <i>Krumwiede</i>, the plaintiffs alleged that the decedent was exposed, in part, through his work with Tremco caulk and tape.&nbsp;The decedent worked as a window glazier from the mid-1950&rsquo;s to the early 1990&rsquo;s.&nbsp;At trial, two of the decedent&rsquo;s former co-workers testified that they and the decedent used Tremco caulk and glaze in their roles as glaziers.&nbsp;The witnesses, however, could not recall seeing dust emanate from the Tremco products or anything on the products&rsquo; packaging indicating that they contained asbestos.&nbsp;</p> <p>Plaintiff&rsquo;s medical expert, Dr. Arthur Frank, testified that a person&rsquo;s cumulative dose to asbestos contributes to the development of mesothelioma.&nbsp;In elaborating on this opinion, Dr. Frank testified that there is no scientific way to determine what exposure to asbestos caused a person&rsquo;s illness, but rather, a person&rsquo;s total exposure is considered the cause of the illness.&nbsp;Dr. Michael Graham, a pathologist, testified for Tremco, opining that there were amosite asbestos fibers found in the decedent&rsquo;s lung tissue, but that those fibers had nothing to do with the decedent&rsquo;s work with Tremco products, as those products only contained chrysotile asbestos fibers.&nbsp;Dr. William Longo also testified for Tremco.&nbsp;He explained that he previously tested the Tremco products and found no detectable asbestos fibers, which was because the products were thermoplastic materials.&nbsp; Dr. Longo admitted, however, that he could not rule out that Tremco products released respirable asbestos fibers.&nbsp;Ultimately, the jury returned a verdict for the plaintiffs.</p> <p>But the appellate court concluded that the plaintiffs failed to establish that the decedent's work with Tremco products was a substantial factor in the cause of his mesothelioma.&nbsp; According to the court, simply working around Tremco products did not establish that the decedent had frequent, regular, and proximate contact with respirable asbestos fibers from the products.&nbsp; The court believed that there was an absence of evidence explaining under what circumstances Tremco's products released respirable asbestos fibers.&nbsp; In other words, just because the products were capable of releasing asbestos fibers did not mean they actually did so when the decedent worked with the products.&nbsp; The court also determined that the plaintiff failed to present evidence showing that Tremco's products released more than a <i>de minimis</i> amount of asbestos fibers when the decedent encountered the products.&nbsp; And while the court found that Dr. Frank's &quot;cumulative exposure&quot; testimony was proper under Illinois law, the court concluded that his testimony did nothing to aid the plaintiffs in meeting the &ldquo;substantial factor&rdquo; test under Illinois law because he did not opine that exposure from Tremco products was a substantial factor in bringing about the decedent's illness.&nbsp;</p> <p>This is a positive development for Illinois defendants in asbestos litigation.&nbsp;Specifically, defendants should consider relying on this opinion to argue that a plaintiff cannot satisfy his or her burden of proving causation simply by establishing that a defendant&rsquo;s products can release asbestos fibers.&nbsp;&nbsp;</p> First District Appellate Court upholds $4.8 million asbestos verdict against John Crane. Feb 2020Illinois Law Blog<p>Much to the defense bar&rsquo;s dismay, in late 2019, the First District Appellate Court affirmed and upheld a $4.6 million verdict against John Crane Inc. in <i>Daniels v. John Crane, Inc.</i>, 2019 IL App (1st) 190170.</p> <p>In that case, the decedent&rsquo;s estate filed suit, alleging that the decedent developed pleural mesothelioma due to asbestos exposure. The decedent worked as a union pipefitter from 1957 to 1985.&nbsp;Prior to his death, the decedent testified to significant asbestos exposure from valves and gaskets, including gaskets manufactured by John Crane.&nbsp;&nbsp;</p> <p>At trial, plaintiff's expert, Dr. Jerrold Abraham, testified that the decedent's asbestos exposure through his work with John Crane products was a substantial contributing factor in his development of mesothelioma.&nbsp;Dr. Abraham did not quantify the decedent's exposure through John Crane products, and he testified that exposure to all types of asbestos fibers can cause mesothelioma.&nbsp;Moreover, according to Dr. Abraham, while mesothelioma is a dose-response disease &ndash; meaning the more exposure an individual has the more likely they are to contract the disease &ndash; once someone sustains an asbestos-related disease, it does not matter whether they have had a high or low exposure to asbestos.&nbsp;Dr. Abraham conceded that all of the decedent&rsquo;s exposures, including through friable insulation, were substantial contributing factors to the development of his illness.&nbsp;Essentially, Dr. Abraham opined that if the decedent was exposed to asbestos through John Crane products, such exposure was a substantial factor to the development of his illness, regardless of the dose of the exposure or the dose of the decedent&rsquo;s exposures through other sources.</p> <p>Plaintiff also presented William Ewing, a Certified Industrial Hygienist.&nbsp;Ewing testified that the decedent was exposed to asbestos by using picks, chisels, and hammers to remove John Crane packing, and by using brushes and sanders to dislodge or reshape John Crane gaskets.&nbsp;Ewing quantified the duration of the decedent&rsquo;s exposure (1957 to 1985) and his alleged dosage amount (.05 to 1 fibers per cubic centimeter when removing and installing gaskets; .05 to 2 fibers per cubic centimeter when removing packing).&nbsp;</p> <p>At the close of evidence, during the jury instruction conference, the plaintiff presented the standard Illinois Pattern Jury Instruction for proximate causation.&nbsp;John Crane objected and presented its own instruction regarding proximate cause.&nbsp;John Crane argued that the jury instruction should have included language requiring the jury to find that John Crane&rsquo;s products were a &ldquo;substantial factor&rdquo; in the development of the decedent&rsquo;s illness in order for proximate cause to exist.&nbsp;John Crane further submitted an instruction defining substantial factor as if, absent John Crane&rsquo;s conduct, the injury would not have occurred.&nbsp;John Crane further also submitted a &ldquo;state of the art&rdquo; instruction, which would have required the plaintiff to prove that John Crane and those in the asbestos products manufacturing industry knew of the alleged dangerous nature of John Crane&rsquo;s packing and gaskets.&nbsp;John Crane argued that such knowledge was required to establish a duty to warn.&nbsp;The trial court rejected these instructions submitted by John Crane.</p> <p>Ultimately, a Cook County jury found for the plaintiff and entered a $6 million verdict.&nbsp;The trial court reduced the verdict to $4.8 million to account for pre-trial settlements.&nbsp;</p> <p>In a posttrial motion, John Crane argued that Dr. Abraham should not have been allowed to testify because he essentially testified that the decedent&rsquo;s cumulative dose (or &quot;each and every exposure&quot;) to all asbestos products caused his injuries.&nbsp;In other words, John Crane claimed that Dr. Abraham failed to differentiate the decedent&rsquo;s exposure through John Crane products from his exposure through other sources.&nbsp;In addition to arguing that the court erred in rejecting the previously discussed jury instructions, John Crane also argued that the trial court erred by failing to properly analyze settlements the plaintiff entered into with certain defendants.&nbsp;The trial court denied John Crane&rsquo;s motion.</p> <p>On appeal, the First District first determined that the trial court properly allowed Dr. Abraham to testify.&nbsp;The court determined that Dr. Abraham did not testify that even a &ldquo;de minimis&rdquo; exposure to asbestos can cause illness.&nbsp;Rather, the court characterized Dr. Abraham&rsquo;s testimony as emphasizing the importance of understanding the dose of asbestos fibers to which a person was exposed when determining causation.&nbsp;Moreover, the court believed the plaintiff established the dose of the decedent&rsquo;s exposure through William Ewing&rsquo;s testimony, who quantified the decedent&rsquo;s exposure range and opined that the dosage level exceeded the background rate of asbestos exposure one would experience from the ambient environment.&nbsp;Overall, the court concluded that Dr. Abraham&rsquo;s testimony provided the background knowledge the jury required to interpret Ewing&rsquo;s opinions regarding the dose of the decedent&rsquo;s asbestos exposure through John Crane products. &nbsp;&nbsp;</p> <p>John Crane also argued that the trial court erred in excluding proposed jury instructions that included language regarding Illinois' substantial factor causation test.&nbsp;On this point, John Crane appeared to argue that the jury should have been instructed on the Illinois frequency, regularity, and proximity causation standard used in asbestos cases.&nbsp;The court found that the Illinois pattern instructions on causation (which do not use the terms substantial factor or frequency, regularity, proximity) sufficiently instructed the jury.&nbsp;The court also determined that using these terms in instructions would have improperly suggested that the plaintiff had to prove a specific dosage amount, when, under Illinois law, a plaintiff need only prove that exposure by a defendant was legally significant.&nbsp;The appellate court seemed to take the position that the frequency, regularity, proximity test is relevant when the court is making a legal determination on whether or not the plaintiff has met her burden of proof in an asbestos case, but the jury should not be given instructions using this language because it suggests that the plaintiff must quantify her exposure levels.&nbsp;</p> <p>As to John Crane&rsquo;s proposed &ldquo;state of the art&rdquo; jury instruction, John Crane argued that the jury should have been instructed that the plaintiff was required to prove either that John Crane specifically knew of the hazards of asbestos or, if not, that members of John Crane's industry had such knowledge.&nbsp;The court rejected this argument because there was evidence in the case that John Crane itself had knowledge regarding the dangers of asbestos when the decedent used its products.&nbsp;Moreover, the court believed that John Crane&rsquo;s proposed instruction would have required the jury to find both that John Crane and those in its industry knew of the dangerous nature of John Crane&rsquo;s products.&nbsp;According to the court, industry knowledge can be used to support a failure to warn claim, but it is not necessary evidence.&nbsp;Rather, the defendant's knowledge is at issue in such a claim.</p> <p>Finally, the court rejected John Crane's argument that certain settled defendants should have appeared on the jury form and that the court should have compelled the plaintiff to disclose the amounts of certain pre-trial settlements.&nbsp;The court reasoned that it is well settled Illinois law that a party defendant cannot include former co-defendants or non-parties on the verdict form.&nbsp;As to the settlement amount issue, John Crane argued that the trial court erred in finding that the plaintiff reached good faith settlements with certain defendants without requiring the parties to disclose the settlement amounts.&nbsp;In rejecting this argument, the court determined that the trial court had sufficient evidence &ndash; including the plaintiff&rsquo;s theory of liability, that plaintiff sought in excess of $50,000, and that John Crane was asserting a sole proximate cause defense &ndash; to make its good faith findings without the need to determine the amounts of the settlements.&nbsp;</p> <p>Overall, while there have been recent positive rulings favoring defendants from the First District and the Circuit Court of Cook County in asbestos litigation, those rulings have largely been limited to the issue of personal jurisdiction.&nbsp;Unfortunately for defendants, the court&rsquo;s opinion in this case is largely consistent with the trial court&rsquo;s rulings on these issues.&nbsp;However, a possible silver lining is that defendants might be able to rely on this opinion to argue that, at trial, plaintiffs cannot simply argue that all exposures to asbestos cause or contribute to the development of mesothelioma, but rather, must present some evidence establishing the dosage level of a plaintiff&rsquo;s asbestos exposure.&nbsp;</p> of St. Louis falls to 5th on the Judicial Hellhole list with Madison and St. Clair Counties, Illinois close behind ranking 7th. Feb 2020Illinois Law Blog<p>Thanks to &ldquo;junk science,&rdquo; the &ldquo;Show-Me-Your-Lawsuit&rdquo; state remains within the top 10 of judicial hellholes throughout the country. St. Louis is home to the largest talc verdict to date thanks to a July 2018 City of St. Louis verdict awarding $550 million in actual damages and $4.14 billion in punitive damages to a group of 22 plaintiffs.&nbsp;Not only are there forum shopping concerns with regards to the talc litigation, there is concern that St. Louis City judges allow plaintiffs&rsquo; lawyers to introduce &ldquo;junk science&rdquo; as evidence.&nbsp;Specifically, plaintiffs&rsquo; experts have been allowed to tell jurors that talcum powder causes ovarian cancer, even though research is mixed and biased as to increased risk, if any, with the use of talcum powder.&nbsp;Nonetheless, the City of St. Louis continues to allow this &ldquo;junk science&rdquo; to be heard in their courtrooms, which can result in big verdicts.&nbsp;</p> <p>The Missouri legislature, however, has taken steps toward addressing the plaintiff-friendly forum, resulting in the City of St. Louis seeing a decline from 4th to 5th in the judicial hellhole rankings this year.&nbsp;But it has a long way to go, as do Madison and St. Clair Counties in Illinois.</p> <p>In Madison and St. Clair Counties, the plaintiffs&rsquo; bar continues to push pro-plaintiff agendas. For example, pro-plaintiff legislation eliminating the statute of repose for asbestos-related occupational disease has been passed, along with legislation which essentially eliminates the power of special interrogatories.&nbsp;&nbsp;The ATRF Report also puts the blame for these judicial hellholes on the Illinois Supreme Court.&nbsp;&nbsp;</p> <p>The American Tort Reform Foundation (&ldquo;ATRF&rdquo;) Report attributes &ldquo;no-injury&rdquo; lawsuits as overburdening Illinois businesses, and the Illinois Supreme Court helped open those floodgates when it issued its decision in&nbsp;<i>Rosenbach v. Six Flags Entertainment</i>, 2019 IL 123186.&nbsp;In&nbsp;<i>Rosenbach</i>, the court found that the plaintiff need not have suffered actual harm to maintain and win a lawsuit filed under the Illinois Biometric Information Privacy Act (&ldquo;BIPA&rdquo;), 740 Ill. Comp. Stat. 14 (2008).&nbsp;Since this decision, the ATRF Report indicates that more than 250 lawsuits have been filed with BIPA at the forefront of the issues in those suits, making businesses vulnerable to massive potential liability in the State of Illinois.</p> <p>Moreover, according to the ATRF Report, Madison and St. Clair Counties continue to remain the preferred jurisdiction in the United States for plaintiffs&rsquo; lawyers to file asbestos lawsuits.&nbsp;The Report further notes that the Gori Law Firm (formerly known as Gori, Julian &amp; Associates, P.C.), &ldquo;one of the top asbestos filers in the nation,&rdquo; was able to &ldquo;stack&rdquo; [sic] the deck higher when Barry Julian, co-founding partner of Gori Julian, was appointed to the Madison County bench in January 2019.&nbsp;The ATRF Report claims the &ldquo;plaintiff-friendly reputation, low evidentiary standards, and judges&rsquo; willingness to allow meritless claims to survive&rdquo; make Madison and St. Clair Counties a flocking ground for asbestos litigation.&nbsp;</p> <p>Until the legislature in both Missouri and Illinois decide to create meaningful reforms, these three counties are likely to continue to rank high on ATRF Report&rsquo;s Judicial Hellholes list.&nbsp;</p> a case overturned due to confusing special interrogatories still relevant under rule change? Feb 2020Illinois Law Blog<p>In, <i>Doe v. Alexian Brothers Behavioral Health Hosp.</i>, 2019 IL App (1st) 180955, plaintiff filed suit for emotional injuries after a former hospital employee mailed the plaintiff a harassing letter that contained vile, personal statements related to private information in the plaintiff&rsquo;s mental health records. She alleged that &ndash; before it fired the employee &ndash; the hospital failed to properly train the employee, supervise the employee, and monitor the employee&rsquo;s use of records, which was more than the minimum necessary to complete her assigned billing tasks. The hospital denied the woman&rsquo;s allegations, saying the former employee was solely responsible for the injuries.</p> <p>At trial, the defense submitted to the jury a special interrogatory asking if the former employee was the &ldquo;sole proximate cause of the plaintiff&rsquo;s injuries&rdquo; which they answered in the affirmative. The initial jury awarded was $1 million in damages in favor of the plaintiff. After the verdict, the court determined that the verdict was inconsistent with the jury&rsquo;s answer to the special interrogatory and, therefore, entered judgment for the hospital.&nbsp;Under the new rules, the court can now direct the jury to further consider its answers and verdict if the general verdict and special interrogatory answer are inconsistent.&nbsp;If the jury cannot reconcile them, the court <b>shall</b> order a new trial.&nbsp;Further, the court could have chosen to not even allow the defense to submit a special interrogatory.</p> <p>On appeal, the plaintiff argued that the special interrogatory was improper because the case was not about sole proximate cause. The plaintiff also argued that the special interrogatory was ambiguous and confusing. The plaintiff noted that the trial court refused a jury instruction on the issue of sole proximate cause and did not specifically define the term sole proximate cause.</p> <p>The appellate court found that the general verdict was unquestionably inconsistent with the special interrogatory answer. However, the special interrogatory was confusing and ambiguous in the context of all of the jury instructions.&nbsp;The appellate court ordered a new trial.&nbsp;</p> <p>Under the new rule, 735 ILCS 5/2-1108, <i>Doe</i> may not have been appealed.&nbsp;As of January 2020, the new law amends the code of Civil Procedure and gives trial court judges the discretion to grant requests for special interrogatories. Previously, if a jury&rsquo;s answer to a special interrogatory question conflicted with its general verdict, as was the case in <i>Doe</i>, then the special finding would supersede the verdict. Although the new law does not eliminate special interrogatories entirely it gives the court the discretion to grant the request for them and it gives attorneys the right to explain to the jurors what may result if the general verdict is inconsistent with any special finding which will likely make it for jurors to understand fundamental legal questions presented in certain negligence and causation cases.&nbsp;</p> <p>Special interrogatories were an important tool that helped juries decided the facts necessary to support a verdict.&nbsp;They were especially useful in places where there are holes in the jury instructions. Where in the absence of a special interrogatory, the jury is not going to be properly instructed on the legal issues it&rsquo;s supposed to address.&nbsp;The <i>Doe</i> case is a perfect example of a hole in the jury instructions where the use of a special interrogatory could be used to assist the jury in rendering fault.&nbsp;The special interrogatory on sole proximate cause enabled the Hospital to get the jury to consider whose conduct solely caused plaintiff&rsquo;s injuries.&nbsp;Although the appellate court determined the special interrogatories confusing and ambiguous, one can see how important it was for the jury to determine who was solely at fault for the verdict rendered.&nbsp;</p> <p>It is too early to tell whether special interrogatories will become obsolete, but it is clear that the power behind them is now minimized.&nbsp;</p>