Category Archives: Karen Munoz

Witness rulings in Klingelhoets v. Charlton-Perrin

Marty Dolan, principal at Dolan Law, and his associate, Karen Munoz, represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in Chicago Lawyer magazine and her column appears regularly in the Chicago Daily Law Bulletin. This blog is written by Karen Munoz.

The case of Klingelhoets v. Charlton-Perrin, 2013 IL App (1st) 112412, will be further discussed in this week’s blog entry due to the range of issues in the Appeals Court opinion.

The defendant’s appeal contended that the trial court had erred in not allowing the defendant to call a coworker as a witness. The plaintiff took the evidence depositions of two of her coworkers who were present when the accident occurred. But one of these witnesses did not see the accident actually occur.

After the defendant admitted liability, the plaintiff withdrew the colleague who had not witnessed the incident. The defendant then asked if she could call the withdrawn witness in the event that the plaintiff did not. Her request was denied.

The defendant argued that the trial court erred in making this decision as this witness’ testimony was key to defendant’s case as she had information as to whether the plaintiff was thrown in the air, where she landed and if she lost consciousness.

The trial court noted in some detail that the defendant had no legal basis to call this witness as the defendant had not disclosed her in her Rule 213(f) disclosures.

In examining the trial court’s decision not to allow this witness to be called, the court considered factors such as surprise to the opposing party, the prejudicial effect of the witness’ testimony, the nature of the testimony, the diligence of the adverse party, the timeliness of the objection and the good faith of the party offering the testimony. The Appeals Court ultimately rested its decision to uphold the trial court’s ruling on the fact that because defendant had not disclosed the plaintiff’s coworker as a Rule 213(f) witness, she could now call her as a witness.

The defendant also claimed that the trial court had erred in not granting the defendant’s motion to bar the plaintiff’s friend and coworker, Carol Heerema. Heerema knew the plaintiff as a high-functioning, intelligent and confident person. When Heerema met the plaintiff at a conference 10 days after the accident, she noted that plaintiff was confused, having trouble mentally and was not “acting like herself.” In later meetings, Heerema noted that plaintiff was slower to respond, made mistakes, had memory difficulties and lacked confidence.

The defendant attempted to bar this evidence on the basis that Heerema was unqualified to express an opinion as to the plaintiff’s mental status. The Appeals Court ruled that a lay witness can express an opinion on an issue as long as the opinion is based on the witness’ personal observations, is one that a person is generally capable of making, and is helpful to a clear understanding of an issue at hand.

The Appeals Court found that Heerema’s testimony was based solely on her observations as someone who had known plaintiff for 25 years.

The judgment of Court of Appeals in Klingelhoets provides us with a useful roadmap on how to prepare for a trial.

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Appeals court reviews expert testimony

Marty Dolan, principal at Dolan Law, and his associate, Karen Munoz, represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in Chicago Lawyer magazine and her column appears regularly in the Chicago Daily Law Bulletin. This week’s blog is written by Karen Munoz.

Any lawyer with an upcoming trial should put some time aside to review the Illinois Appellate Court case of Klingelhoets v. Charlton-Perrin 2013 IL App (1st) 112412. The opinion will be explored  over the following two entries, discusses opening and closing statements, the calling of certain witnesses, discussion of the cost of treatment and the verdict of a jury. The case arose from Defendant’s appeal against a jury verdict in favor of plaintiff for the amount of $713,601. The plaintiff in this matter was crossing the street via a crosswalk with a group of colleagues when defendant ran a red light and struck plaintiff. The defendant admitted liability. The plaintiff refused medical attention at the scene and went to dinner with friends. While at dinner she fell ill and went to the emergency room.

The defendant contends that the trial court made five errors in the course of the trial and that the verdict was contrary to the manifest weight of evidence and should have been vacated for a new trial. Defendant asserted that plaintiff made repeated and unfair attacks on her medical expert. The plaintiff’s counsel referred to the expert as a “hired witness” who “made a career out of this.” In the plaintiff’s closing argument, the expert’s work was described as “an assembly line of defense opinions and reports.” The plaintiff also described the expert as “riding the defense train” for the last several years. The appellate court stated that opening statements are meant to inform the jury of what the parties intend to prove at trial. No comment should be made therein that an attorney cannot or will not prove. Reversal based on improper comments made during opening and closing statements will only occur where comments have been made that deliberately result in substantial  prejudice to the opposing party such that the result of the trial would have been different had the comments not been made. The court stated that it is well-established that a party is afforded broad latitude in making their closing argument. The court found that the comments in this case did not cause any substantial prejudice against the defendant because they were all supported by fact in evidence before the jury. The court found that it was an undisputed fact that the expert was a “hired” witness. It was also true that the expert’s entire professional time was now devoted to reviewing medical cases; it was also true that 99 percent of the time, he works for defendants. No prejudice was found from these statements.

The court found that a remittitur should only be employed when a jury reward falls outside the range of fair and reasonable compensation, appears to be the result of passion or prejudice or is so large that it shocks the judicial conscience. The court found that the decision was not against the manifest weight of evidence. The court also found that the jury’s breakdown of its award was appropriate and in line with the evidence presented at trial.

Bill on med-mal attorney fees goes to governor

Marty Dolan, principal at Dolan Law, and his associate, Karen Munoz, represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in Chicago Lawyer magazine and her column appears regularly in the Chicago Daily Law Bulletin. This week’s blog is written by Karen Munoz.

HB5151 was recently passed by the House of Representatives. The bill containing a measure to cap attorney fees in medical malpractice cases was recently passed by the Illinois General Assembly. If the bill becomes law, attorney fees in medical-malpractice cases will be capped at one-third of a plaintiff award and lawyers will be barred from petitioning the court for higher fees. Under the current system, plaintiff attorneys in medical-malpractice cases can only seek fees of one-third of the first $150,000 of a medical malpractice award, 25 percent of the next $850,000 and 20 percent of any reward more than $1 million. These rules were perceived as being unfair as plaintiff attorneys in other types of personal-injury cases can seek one-third of an award, whereas attorneys in medical malpractice cases have these restrictions. The Illinois State Medical Society, which opposes this bill, has calculated that the bill would increase attorneys’ fees on a $10 million award in a medical-malpractice case from $2.06 million to $3.33 million.

The bill also re-enacts and repeals provisions of the Code of Civil Procedure in order to conform to two Illinois Supreme Court rulings of Best v. Taylor Machine Works 179 Ill.2d 367 (1997) and Lebron v. Gottlieb Memorial Hospital 237 Ill.2d 217 (2010) on medical malpractice reform. In Best, it was found that four provisions of the Civil Justice Reform Amendments of 1995, which made changes in tort recovery, liability and procedure, violated the Illinois Constitution. The Court found in Best that the unconstitutional provisions could not be severed from the act, so the act was rendered invalid. In Lebron, it was found that the caps on noneconomic damages in medical-malpractice cases violated the separation of powers. The Lebron suit alleged that the damages of a minor who suffered severe and permanent injuries due to the health care she received at birth would go beyond the cap. In finding that the provision violated the separation of powers, the court rejected the health-care provider’s claim that the statute was a valid exercise of the police powers upon finding the issue was not the wisdom of the law, but whether the law unduly infringed on the judiciary’s power.

Furthermore, the bill also includes a provision that would create a $250 million cap on the amount of money defendants in civil litigation against tobacco companies have to post as bond in order to appeal a ruling. The legislation, which was backed by ITLA, was approved by a margin of 67 to 46. The Bill now goes to Gov. Pat Quinn for his approval.

Gun debate rages on

Marty Dolan, principal at Dolan Law, and his associate, Karen Munoz, represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in Chicago Lawyer magazine and her column appears regularly in the Chicago Daily Law Bulletin. This week’s blog is written by Karen Munoz.

The issue of gun control has become one of the most important issues of public debate in light of the series of mass shootings in 2012, particularly the tragic Sandy Hook massacre. However, the debate on gun control was already in full swing in Illinois when the Sandy Hook school shooting occurred.  The 7th U.S. Circuit Court of Appeals ruled in early-December that Illinois’ ban on carrying a gun in public was unconstitutional. The court declared that the Second Amendment confers a right to bear arms for self-defense, which was said by the majority to be as important outside the home as inside. Until that point, Illinois was the only state to not have some form of a concealed carry provision in place. The court gave the state 180 days before the decision will be returned to the lower house to be implemented. This time period is designed to enable the legislature to take action upon the ruling.

The debate on gun control suddenly took on a new life on Dec. 14 when 20 children, along with 6 adults, were gunned down in their classrooms in Newtown, Conn. The focus in Illinois has now shifted to our elected officials and what actions they will take in order to prevent a similar disaster from occurring in this state. Attorney General Lisa Madigan submitted a motion asking that the 7th Circuit hear the matter en banc.   Madigan claims that the decision goes beyond what the U.S. Supreme Court has held and also conflicts with decisions by two other federal appellate courts. However, Madigan’s request does not affect the 180-day timeline for the drafting of a new law. The appellate court ruled that the state had not made a strong enough case that a gun ban was vital to public safety. In order to succeed at any potential rehearing, the state will have to address this matter in more detail.

Mayor Rahm Emanuel recently announced that he would introduce an ordinance on the matter of gun control after state lawmakers failed to reach agreement on the matter. The mayor has yet to give details on what he plans to do, but it is expected that he will address the issues associated with lost or stolen guns. Emanuel may take cue from current guidelines in New York. In order to purchase a gun in New York, you need photo identification, must give fingerprint samples, have four character witnesses and disclose any drug use or any history of mental illness. If you are business seeking to purchase a gun for protection, you have to submit your business tax returns, bank deposit slips and payroll information. Permits to own a gun in New York expire after 3 months.

While we cannot be sure of the shape any new gun control measures will take, we can be sure they the measures will be challenged in courts. In any event, we are just at the beginning of a long, arduous and emotive process.

E-filing comes to Illinois

Marty Dolan, principal at Dolan Law, and his associate, Karen Munoz, represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in Chicago Lawyer magazine and her column appears regularly in the Chicago Daily Law Bulletin. This week’s blog is written by Karen Munoz.

E-filing came into effect in Illinois on Jan. 1 following a recent Illinois Supreme Court decision on the matter. E-filing had been on a pilot program in Cook, DuPage, Madison, St. Clair and Will counties since 2003.

The October decision will now open up this process to all counties, while the counties who were operating under the pilot program can continue to do so provided that their systems comply with the rules handed down by the Supreme Court. The rules address system security issues, electronic access to court records and identity verification.

Lawyers who do not practice in the above-mentioned counties will have to wait before they will see the benefits of e-filing. It is expected that the pilot-program counties will proceed with full e-filing while other counties will wait and see how the system develops in those counties.

When the system comes into effect, lawyers can put their days of running down to court to file papers behind them. With e-filing, lawyers will be able to submit their filing online where it will be distributed to all other parties.

This will mean that lawyers will no longer have to mail or courier copies of filings to all the parties involved in a suit which will have considerable financial and time benefits. Another benefit of the system is that when a document is filed at 11:59 p.m., it will be regarded as being filed on that day.

Therefore, lawyers will no longer have to get their documents submitted before a courthouse closes its doors. This will also mean that a lawyer can be anywhere in the world when this process occurs, giving lawyers a greater degree of flexibility. Lawyers should then receive a document back confirming that the paper has been filed.

One of the most important features of the new system is that lawyers and parties can now serve documents via e-mail. Attorneys and parties in civil cases in Illinois must include an e-mail address for service of documents on appearances and all pleadings filed in court.

There are also practical benefits for the courts. By moving to an electronic system, courts will make significant cost savings. According to official documents, Cook County spent $16 million on circuit court storage in 2011.

Instead of cavernous warehouses, courts will now be able to rely on efficient server farms. However, we are a long way away from the day when attorneys will only have to visit the courthouse to appear for a hearing or status as matters such as cost, security and standardizing each counties software will all have to be addressed before the system comes into full force.

State considers marijuana for medical purposes

Marty Dolan, principal at Dolan Law, and his associate, Karen Munoz, represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in Chicago Lawyer magazine and her column appears regularly in the Chicago Daily Law Bulletin. This week’s blog is written by Karen Munoz.

The Illinois State Bar Association recently endorsed legislation that would allow patients who suffer from a debilitating medical condition to use and possess small amounts of marijuana if certified to do so by their regular physician. The endorsement comes after state Rep. Lou Lang, a Democrat, deferred requesting for a vote on his proposal to legalize marijuana use for medical purposes. Lang was forced to defer the vote due to inadequate support for the bill. Under Lang’s bill, patients would have to be diagnosed with one of 30 debilitating medical conditions, register with the Department of Public Health and have a written certification from their certification. Patients would be limited to no more than 2.5 ounces of marijuana every two weeks. Opponents to the bill in Illinois claim that marijuana acts as a gateway to abuse of other illegal substances.

According to Lang, the three-year pilot program would be the most restrictive in the country. The bill comes at a time when states all around America are beginning a discussion on the possible effects of legalizing marijuana. Under federal law, marijuana is considered an addictive substance and its distribution is a federal offense. However, in a recent media interview, President Barack Obama stated that the prosecution of those who distribute marijuana for medical purposes under state law is not a priority of his administration.

Many commentators have compared the history of marijuana to that of alcohol, which was banned by the federal government in the ‘20s and ‘30s. The Prohibition era gave rise to an underground network where alcohol could be purchased with ease. A similar underground network exists in the states where marijuana can be purchased with little difficulty. Even in states where marijuana has been legalized for those with medical conditions, there is anecdotal evidence of the substance being prescribed for almost any ailment. It was ultimately the public’s weariness of organized crime that led to the end of prohibition. Whether the legalization of pot in the states would bring an end to the current cartel violence in Mexico is up for debate. A recent report by the Mexican Competitive Institute states that Mexican drug organizations could lose almost $2.8 billion by the legalization of marijuana in Washington and Colorado.

Proponents of efforts to legalize the substance argue that the move would benefit the country due to the regulation and taxation of the product.  However, Gil Kerlikowske of the Obama administration claims that the social costs of alcohol far outweigh the tax intake achieved on alcoholic products. Whether already over-stretched states would be willing to gamble on the social costs of legalizing marijuana is another issue that will have to be explored in detail.

We will have to wait until later this year to see if Lang can drum up the necessary support for his bill. In the meantime, all eyes will be on the federal government to see what action, if any, it will take on the states that legalized the drug.

Pending bill authorizes licenses for illegal immigrants

Marty Dolan, principal at Dolan Law, and his associate, Karen Munoz, represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in Chicago Lawyer magazine and her column appears regularly in the Chicago Daily Law Bulletin. This week’s blog is written by Karen Munoz.

According to the 2010 U.S. Census, the number of Latinos in Illinois was about 2 million, or nearly 16 percent of the population. Lawmakers estimated about 250,000 illegal immigrants live in Illinois. The Illinois Senate recently passed Senate Bill 957 that allows illegal immigrants to obtain an Illinois driver’s license. The Senate voted 41-14 in favor of the bill, which allows the secretary of state to issue a temporary visitor driver’s license to those who have resided in Illinois for more than a year; are ineligible to obtain a social security number; and who are unable to present documentation from the federal government authorizing their presence in the United States. Holders of the temporary visitor driver’s license must comply with other Vehicle Code regulations, including insurance requirements. The bill makes a temporary visitor’s driver’s license invalid if the driver cannot provide proof of liability insurance upon request from a law enforcement agency.

The bill was drafted in response to the dangers posed by those taking to the roads without a driver’s license and without insurance. Unlicensed drivers are involved in almost 80,000 accidents in Illinois annually, resulting in $660 million in damage. Unlicensed immigrant drivers cost $64 million in damages claims. In the event of an accident, it was often the public that was left with picking up the tab. According to the Highway Safety Coalition, there are about 250,000 undocumented immigrants in Illinois who are driving without licenses and insurance. There have been calls for an amendment to the bill that would require undocumented immigrants to take a formal driving class. It has been argued that many immigrants who come to Illinois will not have driven in the blizzard-like conditions that Illinois can often experience and so would require education for handling such conditions. Temporary visitor driver’s licenses are a different color from regular Illinois driver’s licenses and are clearly marked “not valid for identification.” Undocumented drivers will have to present a verifiable passport or consular identification card, and proof of one year of Illinois residency in order to obtain the license. Drivers will also have to pay a fee and pass vision, written and road tests, as well as buy auto insurance.

If approved by the House and signed into law by Gov. Pat Quinn, Illinois would join only two other states – Washington and New Mexico – in granting such licenses. The House is expected to take up the measure during the January lame duck session.