BSCR Firm News/Blogs Feedhttps://www.bscr-law.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10en-us27 Feb 2020 00:00:00 -0800firmwisehttps://blogs.law.harvard.edu/tech/rssSupreme Court of Missouri Overturns $2.3 Million Negligent Credentialing Verdict but Grants New Trialhttps://www.bscr-law.com/?t=40&an=104259&format=xml&p=5258&stylesheet=blog25 Feb 2020Missouri Law Blog<p>In a case of first impression, the Supreme Court of Missouri, in <i>Thomas E. Tharp, et al. v. St. Luke&rsquo;s Surgicenter-Lee&rsquo;s Summit, LLC</i>, <a href="https://www.courts.mo.gov/file.jsp?id=147178">overturned</a> a $2.3M verdict and granted a new trial after the unusual step of holding a rehearing and vacating an earlier opinion.</p> <p>In February 2019, the Court overturned a jury verdict in favor of a patient and his wife against a surgery center because there was no proof the surgery center negligently granted staff privileges to a surgeon. Though other Missouri courts had recognized the existence of a negligent credentialing cause of action, this opinion was the first from the Supreme Court of Missouri to address the essential elements of such a claim.&nbsp;</p> <p>At the rehearing, the plaintiffs claimed they possessed additional evidence which, if presented upon retrial, would allow them to make a submissible case of negligent credentialing.&nbsp; This purportedly includes evidence of low scores the surgeon received on continuing medical education exams, thus suggesting an inability to retain essential knowledge necessary to competently perform surgery.&nbsp; This also purportedly includes evidence of the surgeon's litigation history showing he was sued more frequently as he aged, and expert witness testimony regarding the significance of the statistics.&nbsp; The Court did not take a position on the admissibility of this proffered new evidence, or its probative value (which is for a jury to decide), but the Court found this sort of evidence could possibly support a finding that the surgeon was incompetent or generally careless, which is the required standard for a negligent credentialing claim.</p> <p>The Court said it decided to hold a rehearing and order a new trial because it would be manifestly unfair to deny the plaintiffs a new trial when they did not know and could not have known what evidence the Court would require to make a submissible case.&nbsp; Legal precedent requires remand for a new trial if the plaintiff's legal failure was caused not by a strategic decision, avoidable or invited error, but by an extrinsic factor outside the plaintiff's control.&nbsp; One such extrinsic factor is ignorance of the evidence necessary to support a cause of action when there is no statute or binding appellate precedent setting forth same.&nbsp; As mentioned above, though other Missouri courts have recognized the existence of a negligent credentialing cause of action, no court had addressed the essential elements or evidence required.&nbsp; Thus, the Court found the plaintiffs&rsquo; legal failure justifiable and not punishable in the absence of guidance from the Court. &nbsp;</p> <p>This is the first ruling of its kind to provide guidance to Missouri lower courts and practitioners prosecuting or defending a negligent credentialing claim.&nbsp; These claims are difficult to prove, as they require proof beyond that which is required to support a direct medical negligence claim.&nbsp; Absent credible evidence of a physician&rsquo;s incompetence generally, and the negligent failure of a healthcare facility to discover the incompetence and act accordingly, courts should dispose of these claims via dispositive motion.&nbsp; Further, it is not enough to prove that but for the credentialing, the physician could not have performed the conduct that produced the injury.&nbsp; Rather, a plaintiff must prove the injury was the natural and probable consequence of the physician&rsquo;s incompetence.</p> This opinion did not address whether the negligent credentialing theory conflicts with V.A.M.S. &sect; 538.210.4 (2017), which provides, in part, that &ldquo;[n]o health care provider whose liability is limited by the provisions of this chapter shall be liable to any plaintiff based on the actions or omissions of any other entity or individual who is not an employee of such health care provider . . . .&rdquo;&nbsp; Negligent credentialing liability necessarily depends on negligent actions or omissions of a non-employee physician.&nbsp; In the event this argument is raised, it is unclear how the Court would address the apparent conflict of law.&nbsp;&nbsp;https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Chuck and Gena Norris "Tap Out", Dismiss Lawsuit Against Bracco Diagnostics Inc. With Prejudicehttps://www.bscr-law.com/?t=40&an=104453&format=xml&p=525725 Feb 2020Results<p>After a lengthy battle in the United States District Court for the Southern District of Texas, Chuck and Gena Norris abandoned their claims against long-time BSCR client, Bracco Diagnostics Inc. (Bracco). Mr. and Mrs. Norris had been vocal in the media, claiming Gena had suffered debilitating injuries as a result of her exposure to gadolinium based contrast agents manufactured by Bracco.&nbsp; Despite their oft-repeated public claims that they would never abandon their case, the opposite became true when the Court entered their dismissal with prejudice on January 15, 2020.&nbsp;</p> <p>The decision to dismiss the lawsuit was entirely that of Mr. and Mrs. Norris and their attorneys.&nbsp; No settlement payment was made and each party paid their own costs.&nbsp; In obtaining a complete dismissal of the lawsuit, the Baker Sterchi team led by co-national counsel Tom Sterchi and Paul Penticuff achieved something heretofore unimaginable in any venue&mdash;they defeated Chuck Norris.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Illinois First District Appellate Court upholds $4.8 million asbestos verdict against John Crane.https://www.bscr-law.com/?t=40&an=104258&format=xml&p=5258&stylesheet=blog20 Feb 2020Product Liability 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>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Illinois First District Appellate Court upholds $4.8 million asbestos verdict against John Crane.https://www.bscr-law.com/?t=40&an=104257&format=xml&p=20 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>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10City of St. Louis falls to 5th on the Judicial Hellhole list with Madison and St. Clair Counties, Illinois close behind ranking 7th.https://www.bscr-law.com/?t=40&an=104256&format=xml&p=12 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>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10City of St. Louis falls to 5th on the Judicial Hellhole list with Madison and St. Clair Counties, Illinois close behind ranking 7th.https://www.bscr-law.com/?t=40&an=104255&format=xml&p=5258&stylesheet=blog12 Feb 2020Missouri 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.&nbsp;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 <i>Rosenbach v. Six Flags Entertainment</i>, 2019 IL 123186.&nbsp;In <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>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Greg Odom Speaks to Local Businesses About the Illinois Biometric Information Privacy Acthttps://www.bscr-law.com/?t=40&an=104254&format=xml&p=545411 Feb 2020Speaking Engagements<p>Baker Sterchi Cowden &amp; Rice attorney Greg Odom will be presenting to local businesses about biometric privacy issues in Illinois. He presents to the Herrin, Illinois Chamber of Commerce on February 25, 2020, and to the Illinois Small Business Development Center at SIU Carbondale on February 27, 2020.&nbsp; During these presentations, Odom will discuss the Illinois Biometric Information Privacy Act, including the Act's requirements, strategies for complying with the Act, and considerations for responding to a lawsuit filed under the Act.&nbsp; He also will examine how other recent and proposed privacy laws in Illinois might interact with the Biometric Information Privacy Act. &nbsp;</p> <p>The Biometric Information Privacy Act imposes several requirements on businesses that collect, store, or use biometric information and allows individuals to sue businesses that do not comply with the Act.&nbsp; A 2019 Illinois Supreme Court opinion interpreting the Biometric Information Privacy Act has had a significant impact on businesses throughout the state, leading to a flood of new litigation filed under the Act.&nbsp; As a result, businesses throughout the state are being named in lawsuits worth potentially millions of dollars.&nbsp; As a member of Baker Sterchi's Cyber Liability, Privacy &amp; Data Breach practice group, Odom advises businesses on how to comply with and respond to lawsuits filed under the Biometric Information Privacy Act.&nbsp;&nbsp;</p> <p>Odom's presentation to the Herrin Chamber of Commerce is from 12 pm -1 pm at the First Baptist Church (1500 S. 13th Street) in Herrin, Illinois, and his presentation to the Small Business Development Center is from 12 pm -1 pm at the SIU Small Business Development Center (1740 Innovation Drive) in Carbondale, Illinois.</p> <p>For more information about these events, contact Greg Odom&nbsp;<a href="mailto:godom@bscr-law.com">here</a>.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Is a case overturned due to confusing special interrogatories still relevant under rule change?https://www.bscr-law.com/?t=40&an=104191&format=xml&p=06 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>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Baker Sterchi Attorneys Recognized by Illinois Super Lawyershttps://www.bscr-law.com/?t=40&an=103089&format=xml&p=525529 Jan 2020Recognition<p>Baker Sterchi attorneys Greg Odom and Meghan Kane have been named to the 2020 Illinois Super Lawyers Rising Stars list. Odom is recognized in the area of civil litigation defense and Kane in personal injury defense.</p> <p>Rising Stars are top up-and-coming attorneys in a state who are 40 years old or younger, or who have been practicing for ten years or less.&nbsp; Each year, no more than 2.5 percent of the lawyers in the state are selected by the&nbsp;research team at Super Lawyers to receive this honor.</p> <p>Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selection process is multi-phased and includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country.&nbsp;</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10What Lies Ahead: Proposed Privacy Legislation in Illinoishttps://www.bscr-law.com/?t=40&an=103063&format=xml&p=28 Jan 2020Illinois Law Blog<p>While it might not garner the attention of Halloween, Thanksgiving, or Christmas, January 28<sup>th</sup> is an international holiday; specifically, Data Privacy Day. The holiday is meant to raise awareness and promote privacy and data protection best practices.&nbsp;For more information on Data Privacy Day, please visit this <a href="https://staysafeonline.org/data-privacy-day/">link</a>.&nbsp;For this year&rsquo;s Data Privacy Day, we at Baker Sterchi Cowden &amp; Rice are looking ahead to potential data privacy laws proposed in Illinois and evaluating the potential impact of those laws.</p> <p><b>App Privacy Protection Act</b></p> <p>One such proposed law is the App Privacy Protection Act.&nbsp;This law would require an entity that owns, controls, or operates a website, online service, or software application to identify in its customer agreements or applicable terms whether third parties collection electronic information directly from the digital devices of individuals in Illinois who use or visit its website, online service, or software application.&nbsp;The law would further require the disclosure of the names of those third parties and the categories of information collected.&nbsp;Perhaps most importantly, the law would amend the Illinois Consumer Fraud and Deceptive Business Practices Act to provide that a violation of the law constitutes a violation of the Consumer Fraud Act.&nbsp;Much like the Illinois Biometric Information Privacy Act, this law would create a private right of action for violations, albeit through the Consumer Fraud Act.&nbsp;The citation for this proposed law is 815 ILCS 505/2Z.&nbsp;The last legislative action taken on this proposed law was on March 29, 2019.&nbsp;You can find information about the proposed law at this <a href="http://www.ilga.gov/legislation/BillStatus.asp?DocNum=3051&amp;GAID=15&amp;DocTypeID=HB&amp;LegId=119398&amp;SessionID=108&amp;GA=101">link</a>.&nbsp;&nbsp;&nbsp;</p> <p><b>Data Transparency and Privacy Act</b></p> <p>The Illinois House also passed HB 3358, known as the Data Transparency and Privacy Act, in 2019.&nbsp;This bill resembled the California Consumer Privacy Act, which went into effect on January 1, 2020.&nbsp;Under this bill, entities that collect through the Internet personal information about individual consumers would be required to make disclosures to the individuals regarding the collection of the information.&nbsp;The bill also allowed individuals to opt out of the sale of their information.&nbsp;A violation of the proposed law could be enforced only by the Illinois Attorney General.&nbsp;The bill exempted several entities from its scope, including hospitals, public utilities, retailers, and telecom companies.&nbsp;After its passage, the Illinois Senate proposed several amendments to the bill, largely to address the ability to seek relief for violations of the Act.&nbsp;Ultimately, the proposed law stalled, failing to pass both chambers before the General Assembly ended its legislative session.</p> <p>On January 8, 2020, however, the Illinois Senate breathed new life into the issue, with Senator Thomas Cullerton sponsoring SB 2330, an updated version of the Data Transparency Privacy Act.&nbsp;Under this version of the proposed law, businesses that process personal or deidentified information must, prior to processing, provide notice of certain information to consumers.&nbsp;The bill also grants consumers the right to obtain certain information from businesses regarding their personal information and the right to request to opt out of certain practices related to their personal information.&nbsp;The bill provides a private right of action to consumers, and allows the Illinois Attorney General to enforce the provisions of the bill through the Consumer Fraud Act.&nbsp;You can monitor the status of this legislation at this <a href="http://www.ilga.gov/legislation/BillStatus.asp?DocNum=2330&amp;GAID=15&amp;DocTypeID=SB&amp;LegID=122685&amp;SessionID=108&amp;SpecSess=&amp;Session=&amp;GA=101">link</a>.&nbsp;&nbsp;&nbsp;&nbsp;</p> <p><b>Biometric Information Privacy Act</b></p> <p>Illinois also has considered amending one of the more controversial provisions of the Biometric Information Privacy Act.&nbsp;Senate Bill 2134 would delete language in the Act creating a private right of action.&nbsp;Under this bill, any violation that results from the collection of biometric information by an employer for employment, human resources, fraud prevention, or security purposes would be subject to enforcement by the Department of Labor.&nbsp;The bill further provides that any violation of the Act would constitute a violation of the Consumer Fraud Act and would be enforceable by the Illinois Attorney General.&nbsp;If enacted, this legislation could have a significant impact by reducing the amount of legislation filed under the Biometric and Information Privacy Act.&nbsp;The last action taken on this bill was on March 28, 2019.&nbsp;You can find more information about the status of the bill at this <a href="http://www.ilga.gov/legislation/BillStatus.asp?DocNum=2134&amp;GAID=15&amp;DocTypeID=SB&amp;LegID=120309&amp;SessionID=108&amp;SpecSess=&amp;Session=&amp;GA=101">link</a>.&nbsp;&nbsp;</p> <p><b>Geolocation Privacy Protection Act</b></p> <p>The Geolocation Privacy Protection Act (House Bill 2785) was introduced by Rep. Ann M. Williams in February 2019.&nbsp;Under the proposed bill, affirmative express consent would be required before geolocation information can be collected, used, stored or disclosed from a location-based application on a user's device.&nbsp;Similar to the App Privacy Protection Act discussed above, the Geolocation Privacy Protection Act provides that a violation of the Geolocation Privacy Protection Act constitutes an&nbsp;unlawful practice under the Consumer Fraud and Deceptive Business Practices&nbsp;Act, thereby amending Section 2Z of the Illinois Consumer Fraud Act.&nbsp;In addition, a user's rights under the Act cannot be waived.&nbsp;The last action on the bill occurred on March 229, 2019, when it was re-referred to the Rule's Committee.&nbsp;More information regarding the status of the bill can be found at this <a href="http://www.ilga.gov/legislation/BillStatus.asp?DocNum=2785&amp;GAID=15&amp;DocTypeID=HB&amp;LegId=119037&amp;SessionID=108&amp;GA=101">link</a>.</p> <p><b>Right to Know Data Transparency and Privacy Act</b></p> <p>Another proposed law is the Right to Know Data Transparency and Privacy Act which would require that an operator of a commercial website or online service that collects personally identifiable information through the Internet about individual customers residing in Illinois who use or visit its commercial website or online service notify those customers of certain specified information pertaining to its personal information sharing practices.&nbsp; The Act would also require an operator to make available to customers all categories of personal information that were disclosed, as well as the names of all third parties that received the customer's personal information. Further, customers whose rights are violated under the Act have a private right of action. The Act is comprised of Senate Bill 2149, introduced by Sen. Michael E. Hastings, and House Bill 2736, introduced by Rep. Kambium Buckner, in February 2019.&nbsp;The last action taken on both bills was on March 29, 2019.&nbsp;You can find out more information about the Right to Know Act <a href="http://www.ilga.gov/legislation/BillStatus.asp?DocNum=2149&amp;GAID=15&amp;DocTypeID=SB&amp;LegID=120357&amp;SessionID=108&amp;SpecSess=&amp;Session=&amp;GA=101">here</a>.&nbsp;</p> <p><b>Genetic Information Privacy Act</b></p> <p>In addition to an increase in proposed legislation related to data privacy, the expansion of existing privacy laws in Illinois is already occurring with new amendments which went into effect on January 1, 2020.&nbsp;For example, due to the growing popularity of direct-to-consumer genetic testing kits sold by companies such as Ancestry and 23andMe, House Bill 2189 was signed into law by Governor Pritzker on July 26, 2019.&nbsp;The amendment expands the definition of &ldquo;genetic testing&rdquo; under the <a href="http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1567&amp;ChapterID=35">Genetic Information Privacy Act</a> to include direct-to-consumer genetic testing kits.&nbsp;In addition, the amendment specifically prohibits the sharing of any testing or personally identifiable information with health insurance and life insurance companies without the written consent of the consumer.&nbsp;</p> <p><b>Artificial Intelligence Video Interview Act</b></p> <p>Further, Illinois law now provides for protections related to the use and disclosure of information gained using artificial intelligence software by prospective employers during video interviews.&nbsp;&nbsp; Additional details regarding the Artificial Intelligence Video Interview Act can be found in a prior post&nbsp;<a href="https://www.bscr-law.com/?t=39&amp;anc=2035&amp;format=xmldetail&amp;stylesheet=FirmNewsItems_blog&amp;p=5258">here</a>.</p> <p>As you can see, companies doing business in Illinois need to remain vigilant about privacy legislation in Illinois. Not only do companies need to be aware of new legislation on this issue, but they need to understand how various privacy laws interact with each other. &nbsp;Consumer privacy appears to be an important issue to the Illinois legislature, and as the legislation discussed above illustrates, one that will continue to develop in 2020. &nbsp;&nbsp;</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10