Articles Posted in Civil Procedure

Illinois law has method by which a court can order a civil litigant to undergo physical or mental examination. The point of the rule is to make sure that both sides have the ability to examine a party. In other words, it would not be fair for the defendant if the plaintiff got to pick all of her medical providers and the defendant could not have their own doctor examine the litigant. Illinois Supreme Court rule 215 is a procedure allowing doctors to examine patients. The doctor is supposed to prepare a report within 21 days of the examination.

In Batson versus Township village Associates, the issue became whether or not a doctor who did not turn over the report within the 21 days could testify. Linda Batson claimed she was injured while riding in an elevator owned by Township Village Associates. By filing suit, she placed her physical condition at issue because she claimed she got injured. The defense hired Dr. Mitchell Rotman to examine the plaintiff. Dr. Rotman met with plaintiff on August 15, 2016. On August 31, 2016 Rotman fax a copy of his report to the defense lawyer hired him. He did not however, fax mail or deliver a copy of report plaintiff’s counsel.

The parties took a deposition on September 13, to 2016 of one of the plaintiffs treating doctors, Dr. Baak. Before the questioning started the lawyer for the plaintiff stated, on the record, that he had not received a copy of Dr. Rotman’s report. He also indicated he intentionally scheduled the evidence deposition seven days after the 21-day time limit so that he would have the report prior to Dr. Baak’s evidence deposition. Counsel for the plaintiff filed a motion to bar Rotman’s testimony.

Illinois law permits a plaintiff to dismiss his or her case and refile it later. Typically, plaintiff, often because they are missing a witness or have some other fatal flaw in their case, dismisses the case without prejudice. The plaintiff then has a year to refile the case. This is especially useful if you are missing a witness who cannot be found, but the judge will not continue the case.

This came up in a medical malpractice case entitled Freeman vs. Crays. In Freeman the plaintiff had hired a primary care doctor to testify that the defendant in the case should have referred plaintiff’s decedent to a cardiologist. The plaintiff did not hire a cardiologist to testify about what might have happened after the plaintiff’s decedent got cardiologist. In other words, it was unclear whether a referral to a cardiologist would have likely saved plaintiff’s decedent. It was also unclear what the likelihood was.

Right before trial the defense asked for directed findings because the plaintiff could not prove causation. The trial court that without a cardiologist plaintiff could not win, so plaintiff dismissed and refiled.

Claim Splitting

The appellate court addressed claims splitting in Dinerstein vs. Evanston Athletic Clubs, Inc. In Dinerstein the plaintiff filed suit involving an injury at a health club. The injury occurred when plaintiff was climbing a rock-climbing wall and fell. Plaintiff filed suit alleging negligence, willful or wanton misconduct, and loss of consortium.

Before climbing the wall plaintiff signed a release which indicated that plaintiff would not sue defendant for negligence. The court granted a motion to dismiss the negligence counts based on that agreement. The court then refused to allow an appeal of that particular issue pending the resolution of trial, denied the motion to reconsider, and continue the case on the other two counts.

The Fourth Circuit Court of Appeals decided Robert Reynolds v. Jimmy John’s. The case involved two issues. The first issue was whether or not the plaintiff’s complaint alleged sufficient duty to puruse a claim against Jimmy John’s for several counts, including negligent training of its employees and negligent supervision. The second involves the procedure of dismissals of claims.

This case arises from a car/motorcycle accident. The plaintiff was driving his motorcycle on Iles Avenue. The defendant contracts with “independent contractors” to drive their food to be delivered. Sawyer, the Jimmy John’s driver, had driven across the parking lot in front of a Jimmy John’s restaurant and into the US Bank parking lot to exit the driveway. Sawyer turned left out of the US Bank driveway, failed to yield to traffic, and collided with plaintiff’s motorcycle. Plaintiff was injured.

Defense moved to dismiss the driver’s claim, attaching an affidavit of a Jimmy John’s employee indicating that the driver was an independent contractor. The deposition testimony, which was attached to the motion, apparently did not indicate whether or not the accident was caused by the “freaky fast delivery,” promised by Jimmy John’s. Plaintiff contends that “freaky fast delivery” is the reason for the accident.

In the case of Nitro-Lift Technologies, LLC v. Eddie Lee Howard, involving the Federal Arbitration Act, the Supreme Court of the United States indicated that courts are not allowed to address the validity of covenants not to compete before an arbitrator does so. By declaring non-competition agreements and employee contracts null and void, rather than leaving that determination to the arbitrator, the state court ignored the basic tenet of the acts arbitration law.

The case involved a contract between an employer and an employee. They entered into a non-competition agreement which had an arbitration clause indicating that any dispute would be resolved by a single arbitrator, mutually agreeable to the disputing parties, in an arbitration proceeding conducted in accordance with the rules of the American Arbitration Association. The employees filed suit after serving the demand for arbitration. They asked the court to declare the non-competition agreements null and void. The trial court found that the contract contained valid arbitration clauses, which the arbitrator, not the court, court should settle.

The case made its way up to the Oklahoma Supreme Court. Oklahoma law limits the enforceability of non-competition agreements. In other words, a court should decide whether the arbitration clause was valid. The employer claimed that the question as to the enforceability of the contract was a question that the arbitrator should decide, not the Supreme Court. The Oklahoma Supreme Court disagreed, contending that existence of an arbitration agreement and an unemployment contract does not prohibit traditional review of the underlying agreement.

In the case of Santiago v. Bliss the Plaintiff filed a personal injury claim. Plaintiff was injured significantly while operating a punch press for his employer. He filed a product liability complaint against the entity that manufactured the punch press.

In his complaint the plaintiff used the name “Juan Ortiz,” the name he was known by at his place of employment. He also used a false birthday. He used the name in interrogatories. The defense was unaware until his deposition that the name was false. There was no evidence as to the knowledge of the plaintiffs attorneys. Defendant refused to answer whether he had ever used a false social security number or filed tax returns under the false name.

During his deposition he testified that his real name, at birth, was “Rogasciano Santiago,” but that he also used the name “Juan Ortiz”. The defense filed a motion to dismiss because he had used the wrong name. The Plaintiff filed an Amended Complaint, with leave of court, identifying the Plaintiff as Rogasciant Santiago” f/k/a “Juan Ortiz”. The circuit court denied the Motion to Dismiss. The circuit court certified the question of the appellate court presenting the issue of whether the court should dismiss the case as a sanction and whether the original complaint was a nullity because the Amended complaint did not relate back.

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