Cases

Eastman v Biomet: Read Your Release / Settlement Language

July 11, 2018 by Levinson and Stefani Leave a Comment

Two hands are tearing up a signed paper. Cancellation of contract, document or agreement. Business concept

In Eastman v. Biomet Inc., a man who had already accepted $25,000 to settle a products-liability suit against Biomet filed a second suit in hopes of receiving an additional $175,000. Eastman v. Biomet, Inc., No. 17-3463, 2018 U.S. App. LEXIS 14106 (7th Cir. May 29, 2018). Biomet had been in a multi-district litigation where the plaintiffs alleged that they had suffered injuries due to Biomet’s artificial hip devices. The parties entered into a Master Settlement Agreement which outlined the procedures for determining the settlement amounts that would be received by the individual plaintiffs. The agreement provided that certain categories of plaintiffs would presumptively receive $200,000 with Biomet being able to offer a reduced amount in appropriate cases. The agreement also provided mediation of disputes about the settlement awards as an option.

Eastman was offered $25,000 to settle his case with Biomet. “Biomet’s attorney gave four reasons for the reduction: (1) Eastman had no medical records from the four-and-a-half years after he received the artificial hip device, (2) he never had been definitively diagnosed with injuries caused by the device, (3) he had suffered physical injuries in a brawl the day before he had surgery to replace the device, and (4) his medical records described him as “a horrible patient”.” It was also mentioned that mediation could be arranged if Eastman so desired, but Eastman chose not to mediate. Eastman accepted Biomet’s offer and signed a broad release of his claims, which essentially stated that in return for the $25,000 payment, he released Biomet from “all claims … of whatever kind … whether known or unknown … [that are] in any manner connected with” Biomet’s hip-replacement device.

Despite signing the release, Eastman sued Biomet for breach of the Master Settlement Agreement a few months later. His reasoning was that Biomet had breached the Agreement by reducing his settlement award from $200,000 to $25,000 without “good cause”. Biomet moved for summary judgment stating that the release Eastman had signed to settle the first suit barred him from the second suit, at which time Eastman responded that the release he had signed was not a binding contract but a counteroffer since he had made changes to the document. Unbeknownst to either Biomet or Eastman’s own attorney, Eastman had changed “irrevocable” to “revocable” in a provision that read: “By signing this Release, the RELEASING PARTY understands that it is irrevocable.” Second, he changed “binding” to “nonbinding” in a provision that read that the “Release shall be final and binding upon RELEASING PARTY.” Finally, he changed the choice-of-law provision so that it stated the release was to be governed by Arkansas law rather than Indiana law.

The district court rejected that argument and granted Biomet’s motion for summary judgment. Eastman appealed, challenging the district court’s conclusion that the release barred him from his second lawsuit. The court said that the Master Settlement Agreement had given both parties the opportunity to dispute the base settlement amount through mediation and that Eastman had waived this right when he accepted and retained Biomet’s $25,000 payment as settlement. Eastman could not use the agreement as “a basis for a contract claim for $200,000 while simultaneously ignoring the provision conditioning that sum on a process that he has eschewed.” The U.S. Court of Appeals for the Seventh Circuit affirmed the district court’s judgment.

Chicago Porch Fall Verdict Stands: Walstad v. Klink

June 4, 2018 by Levinson and Stefani Leave a Comment

Verdict word cloud concept on grey background

Case Summary: Walstad v. Klink

$2.5M verdict in porch case stands; case timely filed

In the case of Walstad v. Klink, a woman fell off the rear porch of an apartment building, resulting in her being paralyzed from the waist down. She had fallen through the yellow tape that the defendant had put up to act as a handrail.

On May 21, 2018, the state appeals court upheld the $2.5 million jury verdict awarded to the plaintiff rejecting the defendant’s argument that the lawsuit against the estate of her now-deceased husband had been untimely filed.

The plaintiff had originally filed a personal injury and premises liability complaint against the original defendant, the owner of the apartment building, and against the City of Chicago. In 2006, the original defendant’s wife, Klink, was added as a defendant by amendment. The City of Chicago filed a motion for summary judgment that was eventually granted by the trial court, dismissing the city as a defendant. While the dismissal was on interlocutory appeal causing the case to be stayed, both the original plaintiff and original defendant passed away. The plaintiff’s mother took over the lawsuit for her daughter but did not add the defendant’s estate as a party until 2013.

The defendant argued that the plaintiff had taken too long to name the estate as a party in her third amended complaint, violating 735 ILCS 5/2-619(a)(1), (2), and (5). The 1st District Appellate Court found that the Plaintiff’s third amended complaint had been timely filed because the defendant had known that a claim would have been brought against her husband’s estate and had notice of the claim. The court reasoned that the defendant’s argument went against 735 ILCS 5/2-616(d), which allows parties to add defendants in a lawsuit even when it would normally be time-barred if certain conditions were met. The court decided that in this case, these conditions had been satisfied.

The case had gone to trial in 2016 after being stayed for years due to the interlocutory appeal. During that time, along with the passing of both the original plaintiff and original defendant, the defendant’s wife filed for bankruptcy in 2015 before the jury issued a verdict in December 2016. Because of Klink’s declaration of bankruptcy, no insurance on the building, and the estate of the original defendant having no assets, the attorneys for both parties said that the plaintiff’s estate would collect nothing from the defendant’s and there ended up being no verdict to collect.

Case Summary: Klesowitch v. Smith

May 11, 2017 by Levinson and Stefani Leave a Comment

In the case of Klesowitch v. Smith, Smith rear-ended Klesowitch while Klesowitch’s car was at a stand-still in the middle of an intersection. At her deposition, Smith admitted she was at fault, but claimed Klesowitch was contributorily negligent.

The Plaintiff filed and won a motion for summary judgment on the issue of sole liability. The Defendant appealed, arguing that the court erred in granting summary judgement because a material fact remained as to contributory negligence. The Defendant argued that granting summary judgment on negligence alone, rather than liability, violated 735 ILCS 5/2-1005(c).

This proved unpersuasive as the appellate court affirmed the trial court’s ruling. Although it didn’t matter what the Plaintiff initially sought in her motion, the trial court was within its rights to make the determination of one or more of the major issues as set forth in 735 ILCS 5/2-1005(d). Here, it was the Defendant’s negligence, which left the Plaintiff’s negligence, if any, and damages left to the discretion of a fact finder.

The Defendant also brought up an issue of the Plaintiff’s medical bills, which were admitted without proper foundation. In Illinois, the full amount billed is allowed into evidence, with evidence of a paid bill being prima facie reasonable. In the event of a future bill or a bill that has not yet been paid, there are foundational requirements that must be set before the bill is admitted. A plaintiff must elicit testimony of a person having knowledge of the services rendered and the usual, and customary charges for such serves to establish reasonableness of the bills to admit them into evidence.

The trial court, over objection, allowed the jury to receive the full amounts of the bills that contained amounts that were written-off. The Defendant argued that the Plaintiff needed testimony establishing the reasonableness of those amounts. The appellate court found this argument persuasive, and after reviewing the record they were unable to find testimony that set the proper foundation for the contested medical bills. They ordered a remittitur and absence of consent of the Plaintiff, a new trial based on damages alone.

You hit a pothole and now you’re injured. Is the city liable?

February 28, 2017 by Levinson and Stefani Leave a Comment

Soon, anxious cyclists will dust off their bicycles and zip around various city and state maintained paths and trails to usher in the new spring. However, both experienced and new riders may fall victim to dangerous conditions leftover from the last year’s biking season or even new dangers created by the thawing out of winter’s freeze.

Imagine, you’re riding your bike when suddenly you’re propelled through the air after your front tire comes in contact with a severe buckle on one of these “city” bike paths/trails. You are seriously injured. Who is liable?

Illinois recognizes that many adventurists love to engage in recreational activities, located “in a truly natural setting.” Corbett v. County of Lake, 64 N.E.3d 90, 95 (Ill. App. 2d Dist. 2016). In addition, it recognizes that requiring a governmental entity to maintain these types of property would not only be burdensome in both time and money, but “would defeat the very purpose of these types of recreational areas.” Id. Therefore, it created an absolute immunity for injuries sustained on these types of properties.

Section 3-107 of the “Local Governmental and Governmental Employees Tort Immunity Act” declares that:

Neither a local public entity nor a public employee is liable for an injury caused by a condition of: (a) Any road which provides access to fishing, hunting, or primitive camping, recreational, or scenic areas and which is not a (1) city, town or village street, (2) county, state or federal highway or (3) a township or other road district highway. (b) Any hiking, riding, fishing or hunting trail. 745 Ill. Comp. Stat. Ann. 10/3-107.

However, this Immunity Act is not a complete bulwark to all injuries sustained on government sponsored bike paths. In Corbett v. County of Lake, the court makes clear that not all bike trails are protected by Section 3-107. In short, the court wants the plaintiff to take a good assessment of the landscape around the path.

The bike trail in Corbett was a city-made path that snaked through commercial and residential areas of the city. Although trees, shrubs, and bunnies could be seen while cruising the path, the court held that the presence of industrial and residential development all around a path negates any conclusion that it is located within a “natural and scenic wooded area.” Corbett, 64 N.E.3d at 97 (explaining that a forest preserve is a “forest,” even with a moderate degree of improvement within and without. An industrial/commercial/residential area is not a forest because it contains narrow strips of green space on which a few trees stand).

The court held in favor of Corbett, thus putting the County of Lake on the hook for her injuries and on notice to take better care of certain trails that it maintains.

How an unexpected death can lead to questions about liability

February 9, 2017 by Levinson and Stefani Leave a Comment

Thomas Hoy was rear-ended by Kurt Woltmann. Hoy sued Woltmann for negligence. After Woltmann’s deposition, Hoy sued Great Lakes for negligence under respondeat superior theory. Before Great Lakes could depose Woltmann, he died from causes unrelated to the accident.

Respondeat superior is a doctrine that considers whether an employer is liable for the torts of an employee when the employee commits the tort within the scope of employment. To determine if an employee was acting in the scope of their employment, the court looks to see if three elements are met: 1) was the conduct the kind of work the employee is employed to do; 2) did the conduct occur substantially within the approved temporal and geographical limits; and 3) was the purpose of the conduct, at least in part, to serve the employer?

Generally, travel to and from work is outside the scope of employment but there are two exceptions, which arise when an employer requires an employee to travel away from a regular workplace or when the employee’s travel is for their employer’s purposes rather than simply moving an employee to or from a regular job site. For example, when an employer tells an employee to drive to a non-work location to take an evening exam as part of a certification related to work, or when a company policy provides employees with reliable transportation home. Those fall within the purview of the exceptions. The second exception focuses on the travel itself and whether it serves the employer’s purpose other than simply moving the employees. In the second example, the travel was serving the employer’s company policy and therefore was a valid exception to the rule.

When Woltmann testified that he was heading towards headquarters to speak with his boss, the Court allowed the inferences that Woltmann was going to talk about something work related. Hoy argued that the second exception applied to him because a work-related meeting serves the employer’s interests. The Court did not find the argument persuasive, rather, application of Hoy’s argument would swallow the general rule. In other words, every time an employee appears for work they are serving the employer’s interests and if that satisfied the exception then every time an employee travels to or from work they are acting in the scope of employment.

The question turns on the goal of the travel. If that goal is nothing more than to convey an employee to a regular work site, then the conduct is outside the scope of employment and liability is not attached to the employer. Here, Woltmann was conveying himself to a regular work site, headquarters, and therefore, the employer was not liable.

Slip and fall cases: What qualifies as sufficient evidence?

January 30, 2017 by Levinson and Stefani Leave a Comment

You recall an injury sustained by a fall you took in the parking lot of a big-box store and you’re trying to prove that it was the store’s fault. What evidence will be sufficient in court? Well, that question is difficult because, like most negligence cases, there usually is not a single piece of evidence that conclusively shows fault. Recently, the 7th Circuit Court of Appeals revisited the burden of proof a plaintiff must furnish to prevail. But, because the plaintiff’s case was unsuccessful the analysis by the court merely leaves practitioners with a list of possible ways in which evidence is insufficient.

In Piotrowski v. Menard, Inc, the court of appeals held that: (1) customers must show that placement of the injury-causing object was due to the store owner’s negligence, and (2) that the store owner had actual or constructive notice of the dangerous condition that caused his/her injuries. The holding relied on precedent found in Zuppardi that required a plaintiff to show that “the foreign substance was related to the defendant’s business and (2) “offer some further evidence, direct or circumstantial, however slight, such as the location of the substance or the business practices of the defendant, from which it could be inferred that it was more likely that defendant or his servants, rather than a customer, dropped the substance on the premises.” The Zuppardi court goes on to give a lengthy list of all the events that could have set forth sufficient evidence. But, it may be misplaced to concluded that showing one of the hypotheticals would have been dispositive to the Zuppadri’s case.

Both holdings suggest that the court is looking for evidence that specifically provides a way in which the defendant caused the harmful condition, not merely speculation. In both cases the plaintiffs only demonstrated possible ways in which the conditions could have been created. This was insufficient. In short, a plaintiff must show either (1) the defendant negligence caused dangerous condition; or (2) the defendant had actual notice of condition and did nothing; or (3) the defendant had constructive awareness of the condition and did nothing. This is a high bar.