Discovery Is Not a Game | Illinois Appellate Court Overturns $50 Million Dollar Birth Injury VerdictOctober 13, 2020 | Nathan Leming and Kelly Sabatés
Florez v. Northshore Univ. Healthsystem, 2020 IL App (1st) 190465; 2020 Ill. App. LEXIS 560
The First District Appellate Court of Illinois recently held that the trial court abused its discretion by barring any reference to a child’s autism diagnosis at trial. As a result of this trial court error, the appellate court overturned a $50 million jury verdict involving the child’s alleged brain injury sustained at birth.
Plaintiff alleged the defendant failed to diagnose and treat the child’s oxygen deprivation during birth, allegedly leading to a severe brain injury. The plaintiff’s counsel argued throughout the case and at trial that the child’s brain injury occurred at or near the time of his birth. The defendant countered that other factors caused the child’s condition with no causal connection to the birth treatment.
Fifty-six days before trial, the plaintiff supplemented his answers to written discovery with a copy of a behavioral report and psychological evaluation from his expert neuropsychologist, who found that the plaintiff met the full diagnostic criteria for Autism Spectrum Disorder. Upon receiving the neuropsychologist’s report, the defendant’s experts found that the plaintiff’s autism diagnosis supported their conclusion that the plaintiff's disabilities were from a chronic condition rather than an acute birth injury.
Pursuant to Illinois Rule 218(c), the defendant filed supplemental disclosures on this evidence and moved to disclose the neuropsychologist as a witness at trial. In response, the plaintiff moved to strike the supplemental disclosures and witness arguing that the defendant was improperly attempting to inject a new issue into the case. The court granted the plaintiff’s motion to strike and found the defendant’s supplemental disclosures untimely because the disclosures were not filed at least 60 days before trial.
However, the appellate court reasoned that the mechanical application of the 60-day deadline under these circumstances would encourage “tactical gamesmanship” because the plaintiff filed his expert’s evaluation less than 60 days before the trial. Essentially, the defendant could not have met the deadline even if it responded the very day it received the report.
Though the plaintiff’s experts opined that the defendant’s negligence led to oxygen deprivation and plaintiff’s injuries and cognitive deficits, the defendant’s experts opined that plaintiff’s injuries were chronic. For example, the defendant’s experts opined that a seizure that occurred five hours after birth was a chronic issue rather than something caused by birth-related treatment.
Accordingly, the appellate court held that barring evidence of an autism diagnosis was an abuse of discretion because the evidence was probative of the causation issue, defendant’s experts could not use it to support their conclusions, and it was not available for the jury to consider in resolving conflicting expert opinions.
Aside from the causation issue, the appellate court found that the autism diagnosis was also relevant to damages issues including plaintiff’s future medical needs, school requirements, and employment prospects.
Ultimately, this case demonstrates how discovery rules should be applied on a case by case basis, as a mechanical application of the rules may not always yield the most just result.
As previously discussed here, here, and here, 2020 has proven to be a consequential year for biometric privacy litigation in Illinois. In perhaps the most active month of the year thus far, seven Illinois District Court Judges issued rulings related to the Illinois Biometric Information Privacy Act (“BIPA”) in August. The rulings address a variety of issues implicated by BIPA, including subject matter jurisdiction, waiver, the statute of limitations for filing a BIPA claim, personal jurisdiction, and the constitutionality of BIPA.
In Frisby v. Sky Chefs, Inc., Judge Matthew Kennelly of the District Court for the Northern District of Illinois ruled that the court lacked subject matter jurisdiction over the plaintiff’s BIPA claims. In that case, the plaintiff alleged that Sky Chefs, an airline catering business and the plaintiff’s former employer, violated BIPA by collecting his fingerprints without first issuing required disclosures, failing to obtain written consent to acquire the prints, and failing to publish protocols for the retention and destruction of employee fingerprints.
In response, Sky Chefs moved to dismiss, arguing that the court lacked subject matter jurisdiction. Specifically, Sky Chefs contended that the plaintiff’s claim was preempted by the Railway Labor Act (“RLA”). The RLA applies to “common carrier[s] by air” and requires that any dispute regarding the interpretation or application of a collective bargaining agreement must be adjudicated by an adjustment board, not a court. Relying on precedent from the Seventh Circuit Court of Appeals, Judge Kennelly explained that disputes regarding how a common air carrier acquires and uses employee fingerprint information falls within the scope of the RLA. The parties, however, disputed whether Sky Chefs constituted a common air carrier. The court ultimately determined that Sky Chefs’ business activities satisfied the definition of a common air carrier because catering for in-flight food service has consistently been treated as a function traditionally performed by air carriers. In 1988, the National Mediation Board made such a determination specific to Sky Chefs. The court concluded that the plaintiff presented no evidence suggesting that Sky Chefs had changed its business since the 1988 determination. Thus, the court held that the plaintiff’s BIPA claim was preempted by the RLA and that it lacked subject matter jurisdiction.
On August 7th, the Northern District Court addressed the statute of limitations for BIPA claims. In Cothron v. White Castle Sys., the plaintiff, a White Castle employee, alleged that her employer violated BIPA through its practice of collecting employees’ fingerprints. White Castle began collecting the plaintiff’s fingerprints in 2007. Although BIPA was passed in 2008, White Castle continued collecting the plaintiff’s fingerprints but did not provide the plaintiff with the disclosures, or obtain her consent, as required by BIPA. White Castle did not provide her with the necessary disclosures or obtain her consent until October 2018. The plaintiff filed suit against White Castle in December 2018.
White Castle argued that the plaintiff’s claim was untimely. According to White Castle, the plaintiff’s claim accrued in 2008 when BIPA was enacted, as White Castle was allegedly in violation of the Act at the time of its passage. By contrast, the plaintiff argued that at least a portion of her claim did not arise until 2018 because White Castle did not comply with BIPA until that time. The plaintiff’s theory was premised on the “continuing tort” doctrine, which holds that for a tort involving a continuous or repeated injury, the statute of limitations period does not begin to run until the date of the last injury or the date the tortious acts cease. The plaintiff claimed that the statute of limitations did not begin to run until White Castle’s final violation under BIPA (i.e., the last time White Castle collected and disseminated her biometric information without having obtained the plaintiff’s consent or giving her the notice required by the Act).
The court rejected the plaintiff’s argument regarding the continuing tort doctrine. The court reasoned that the continuing tort doctrine applies to claims that arise from a series of acts collectively, while it does not apply to a series of discrete acts, even if those acts form an overall pattern of wrongdoing. As to BIPA, the Illinois Supreme Court has explained that the Act imposes obligations that are violated through discrete individual acts, not accumulated courses of conduct. Stated differently, Illinois courts treat a single violation of BIPA as a concrete injury giving the aggrieved party the right to file suit.
The court next analyzed when the defendant’s alleged violations occurred. According to the court, a party violates BIPA each time it collects a person’s biometric information without obtaining consent or providing the required disclosure. The court explained that this is true the first time an entity collects a person’s fingerprint and with each subsequent scan or collection. Thus, the court concluded that the plaintiff alleged multiple violations of BIPA; namely, each time White Castle collected her fingerprint information after the enactment of BIPA and before it provided the required disclosures and obtained her consent in October 2018. Importantly, however, the court reserved ruling on what constitutes the applicable statute of limitations for a BIPA claim because the defendant requested additional time to brief the issue.
Also on August 7th, Judge Robert Dow of the Northern District Court denied a motion to dismiss a BIPA suit. In Lenoir v. Little Caesar Enters., the plaintiffs filed suit against their former employer, Little Caesars, alleging that it violated BIPA through a fingerprint collection system. The defendant argued that one of the plaintiffs waived her right to file suit because six months after she began working for Little Caesars, she allegedly consented to the “past, present and future collection, use, and storage of [her] fingerprint data” by registering her fingerprint scan in a program called Caesar Vision. The court rejected Little Caesars’ argument, noting that the plaintiff’s consent made no mention of BIPA or any other right to sue, nor did it acknowledge that Little Caesars had already collected the plaintiff’s biometric information. Since BIPA requires an entity to obtain consent before collecting a person’s biometric data, the court did not believe it was appropriate to dismiss the case based on the plaintiff’s generalized consent to Little Caesars’ past collection of her biometric information. Finally, consistent with prior opinions, the court rejected Little Caesars’ argument that the plaintiffs’ BIPA claims were barred by the exclusive remedy provision of the Illinois Workers’ Compensation Act because an injury under BIPA is not considered a “compensable injury” under the Workers’ Compensation Act.
On August 12th, the Northern District Court examined whether it could exercise personal jurisdiction over a defendant in a BIPA suit. In Mutnick v. Clearview AI, the plaintiffs filed suit against Clearview and the two founders of Clearview. The defendants argued that they were not subject to personal jurisdiction because they never targeted businesses in Illinois or travelled to Illinois. In determining that the defendants were subject to personal jurisdiction, the court first noted that whether or not the defendants had ever travelled to Illinois was largely irrelevant, as it “is an inescapable fact of modern commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines.”
The court also found unavailing Clearview’s argument that it did not exclusively target Illinois because it collected the biometric information of millions of other Americans from different states. According to the court, it was not necessary that Clearview exclusively target Illinois residents. Instead, the defendants must have maintained contacts with Illinois that gave rise or directly related to the cause of action. The court determined that the defendants maintained such contacts by entering into hundreds of agreements with Illinois entities allowing defendants to collect the biometric information of Illinois citizens, marketing its biometric collection technology to the Illinois Secretary of State, and selling licenses for the use of the biometric information to entities located in Illinois.
Finally, on August 19th, the District Court for the Southern District of Illinois addressed the constitutionality of BIPA. Specifically, in Stauffer v. Innovative Heights Fairview Heights, LLC, one of the defendants argued that BIPA is unconstitutional because it amounts to “special legislation” in that it imposes strict compliance requirements on some employers, but then “arbitrarily” exempts the financial industry and state and local government contractors. The Illinois Constitution prohibits a “special or local law” when a general law is or can be made applicable. This provision prohibits the Illinois General Assembly from conferring a special benefit or privilege upon one person or group and excluding others that are similarly situated.
Regarding BIPA’s exemption for financial institutions, the court explained that the exemption applies only to those institutions subject to Title V of the Gram-Leach Bliley Act of 1999. Thus, the exemption does not apply to all financial institutions. Moreover, the financial institutions that are exempt from BIPA are subject to similarly stringent reporting requirements under federal law. The court also noted failing to exempt those institutions might have resulted in federal preemption of BIPA. Accordingly, the court did not find the financial institution distinction to be “artificially narrow” such that it amounted to unconstitutional special legislation.
As to the defendant’s argument that the BIPA exemption for government employers, the court accepted the plaintiff’s argument that BIPA was enacted to regulate the private sector, not government entities. Additionally, the court found it important that in the nearly 12 years since BIPA’s enactment, no court has found the Act unconstitutional. For those reasons, the court determined that the plaintiff alleged sufficient facts to conclude that BIPA is not special legislation and, therefore, not unconstitutional.
With the increase in BIPA lawsuit filings since early 2019, we should expect courts to continue providing guidance on the scope of BIPA, the merits of both plaintiff and defense theories in these cases, and when dismissal or summary judgment are appropriate in these cases. As always, we at Baker Sterchi will continue monitoring for developments related to BIPA and how those developments might impact our clients.
Let's Be Specific About Personal Jurisdiction: Missouri and Illinois Address Bristol-Myers Squibb v. Superior Court of CaliforniaJuly 27, 2020 | Jennifer Maloney and Julie Simaytis
The Supreme Courts of Missouri and Illinois have recently addressed the constitutional limitations on the exercise of specific personal jurisdiction. In both states, the Courts held that due process prohibits the exercise of specific personal jurisdiction over out-of-state defendants in cases where the defendant does not have sufficient minimum contacts with the forum state and in cases where the alleged injury does not arise from those contacts.
In State ex rel. LG Chem, Ltd. v. The Hon. Nancy Watkins Laughlin, 2020 Mo. LEXIS 193 (Mo. banc June 2, 2020), Plaintiff Peter Bishop brought suit against Defendant LG Chem, a Korean company, in St. Louis County Circuit Court. Bishop alleged he was injured when a lithium-ion battery manufactured by LG Chem exploded in his pocket. Bishop also alleged LG Chem sold the battery to an intermediate distributor, which independently sold the battery to a retailer of electronic cigarettes in Missouri from whom Bishop purchased the battery.
LG Chem moved for dismissal based on lack of personal jurisdiction. In opposing LG Chem’s motion, Bishop relied on Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017). In Bristol-Myers, the United States Supreme Court held that a state court could not exercise specific personal jurisdiction over an out-of-state defendant unless there was “an affiliation between the forum and the underlying controversy, principally…an occurrence that takes place in the forum state.” Id. at 1781. Bishop argued there was a sufficient “affiliation” between Missouri and the underlying controversy to justify the exercise of specific personal jurisdiction over LG Chem because the battery had made its way to Missouri through the third-party distributor and caused injury in Missouri. LG Chem’s motion to dismiss was denied. Ultimately, the Missouri Supreme Court found Bishop’s application of Bristol-Myers to be overbroad and held the actions of a third party, standing alone, cannot be used to satisfy the due process requirement of the specific personal jurisdiction analysis. Since the subject battery had been sold to the Missouri retailer by an independent third party, the Court directed the circuit court to vacate its order overruling LG Chem’s motion to dismiss for lack of personal jurisdiction.
Two days later, the Supreme Court of Illinois also issued an opinion addressing the exercise of personal jurisdiction over an out-of-state defendant, but unlike the Missouri case, the case involved claims brought by out-of-state plaintiffs. In Rios v. Bayer Corp., 2020 IL 125020 (June 4, 2020), the Court held that due process did not allow Illinois courts to exercise specific personal jurisdiction over an out-of-state defendant as to the claims of out-of-state plaintiffs for personal injuries suffered outside of the state from a device manufactured outside of the state. At issue were two cases, both filed in Madison County, Illinois, in which 180 women from more than twenty states alleged injuries related to the use of a permanent birth control device called Essure. The out-of-state plaintiffs had not had the Essure device prescribed or implanted in Illinois and had not sought treatment for their alleged injuries in Illinois. Bayer moved for dismissal of the out-of-state plaintiffs’ claims based on lack of personal jurisdiction. In response to Bayer’s motion, the out-of-state plaintiffs argued the trial court could exercise specific personal jurisdiction over Bayer for their claims because Bayer had developed, labeled, marketed and worked on gaining regulatory approval for Essure in Illinois, and the plaintiffs’ claims arose, in part, from those “minimum contacts” between Bayer and the State of Illinois.
While Bayer’s motion was pending in the trial court, the United States Supreme Court issued its opinion in Bristol-Myers. Despite the new guidance provided in Bristol-Myers, the trial court denied Bayer’s motion, relying on M.M. v. GlaxoSmithKline LLC, 2016 IL App (1st) 151909, wherein the Illinois Court of Appeals had found the exercise of personal jurisdiction over an out-of-state defendant did not violate the due process clause in product liability cases brought by out-of-state plaintiffs where clinical trials had been conducted in Illinois. Bayer appealed. The appellate court held the exercise of personal jurisdiction over Bayer by the trial court was constitutional because the out-of-state plaintiffs’ claims arose, at least in part, from Bayer’s marketing, clinical trials and physician accreditation programs related to Essure in Illinois.
Ultimately, the Illinois Supreme Court reversed the appellate and trial courts. The Court determined Bristol-Myers had foreclosed the plaintiffs’ theory of specific personal jurisdiction and concluded that the out-of-state plaintiffs’ claims did not arise out of Bayer’s activities in Illinois; therefore, due process did not allow the trial court’s exercise of specific personal jurisdiction over Bayer as to the out-of-state plaintiffs’ claims.
These cases represent the first application of the limitations on specific personal jurisdiction expressed in Bristol-Myers by each state’s Supreme Court. The conclusion reached by both Courts emphasizes the importance of conducting a comprehensive evaluation of a defendant’s contacts with the forum state immediately upon service of the summons in every instance.
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