DCBA - Recent Case Law

Recent Case Law

By Steven R. Merican

Here are a few recent cases of importance and note - March 2002.

In re Adoption of K.L.P., 2002 Ill. Lexis 8, Docket No. 90407 (Sup. Ct. 1/25/02). County must provide attorney for indigent parent to respond to adoption proceedings brought by another private party where significant state action resulted in the custody of the minor being placed with a person other than the parent. Mother had custody of children. The state removed custody and placed the children with the father. The circuit court had entered orders allowing the state to file a petition to terminate the mother’s parental rights. The state did not do so. Instead, the father filed an adoption petition, which alleged that the mother was unfit. Had the state filed the petition to terminate under the Juvenile Court Act, the mother would have been entitled, pursuant to the statute, to counsel at county expense. However, the county objected to paying for the mother’s counsel because the action was brought by a private party, the father, under the Adoption Act.

The court ruled that the county was obliged to pay for the indigent parent’s attorney, including appellate counsel. Because this was an equal protection issue, the "incidental effect it may have on the fisc of Kendall County does not violate the separation of powers clause of the Illinois Constitution."

Hansen v. Baxter Healthcare Corp., 2002 Ill. Lexis 1, Docket No. 89043 (Sup. Ct. 1/25/02). In a design defect case, the patient is the consumer for purposes of the "consumer expectation test," not the intermediary health-care professional. Decedent passed away four years after a brain embolism, caused when an intravenous tube detached from a catheter that was inserted into her jugular vein. Her estate sued the manufacturer of the intravenous tube, among other things, on the bases of failure to warn and design defect. The case was tried and the jury sent back a verdict against Baxter in excess of $18 million.

The supreme court affirmed the judgment on the duty to warn count, stating that the "jury’s general verdict for plaintiff could have been reasonably based on a finding that Baxter’s knowledge with respect to the use of friction-fit connectors was superior to that of the medical community and thus Baxter breached its duty to warn." Baxter then argued that it could not be liable in strict liability under the consumer expectation test – i.e., that the product did not perform as safely as an ordinary consumer, in this the decedent/patient, would expect when used in an intended or reasonably foreseeable manner. The supreme court rejected Baxter’s argument that "ordinary consumer/patient" should be replaced with "ordinary physician." The court stated that the product was not purchased by a physician, and that the decedent "could have reasonably expected that her IV catheter connection, if properly designed and manufactured, would be safe to use for its intended purpose."

Simmons v. Garces, 2002 Ill. Lexis 9, Docket No. 91093 (Sup. Ct. 1/25/02). Special interrogatory that is inconsistent with general jury verdict for plaintiff supports post-judgment motion in favor of defendant. The estate of a deceased infant brought a medical malpractice action against the treating doctor. The theory against the doctor was that he failed to diagnose dehydration and refer the child to a hospital for intravenous fluids. The jury rendered a general verdict against the doctor for $675,000. However, in response to a special interrogatory — "Did dehydration contribute to cause the death of LaTonya King?" — the jury answered "No." The circuit and appellate courts found that the verdict was irreconcilable with the special interrogatory answer, and judgment was entered in favor of defendant.

The supreme court agreed. The court found that the only theory of negligence that plaintiff argued was defendant’s failure to diagnose dehydration, so an argument that the jury found some other, non-specific negligence did not support the verdict. The supreme court relied on the Illinois Code of Civil Procedure that governs special jury interrogatories: "When the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may enter judgment accordingly." 735 ILCS 5/2-1108.

First National Bank v. Guerine, 2002 Ill. Lexis 7, Docket No. 90950 (Sup. Ct. 1/25/02). Forum non conveniens motion should be denied where witnesses are scattered among counties and no single county has a predominant connection to the litigation. Court reiterates the vitality of intrastate forum non conveniens doctrine. An auto accident occurred in De Kalb County; the plaintiff was from Kane County; one of the defendants was an Indiana corporation; the defendant driver was from Cook County; various other witnesses were from Du Page, De Kalb, and Winnebago Counties. Plaintiff’s estate filed its wrongful death action in Cook County, but the circuit court granted a defense motion for change of venue.

The supreme court admitted that the law governing intrastate forum non conveniens was vague, but stated that the doctrine still was the law in Illinois. In attempting to clear up some of the confusion, the court stated a few guiding principles: plaintiff’s interest in choosing the forum receives somewhat less deference when neither the plaintiff’s residence nor the site of the accident or injury is located in the chosen forum; defendant must show that the plaintiff’s chosen forum is inconvenient to the defendant and another forum is more convenient to all parties; defendant cannot assert that the plaintiff’s chosen forum is inconvenient to the plaintiff. In this case, the court ruled that the motion to change venue should not have been granted. ". . . [W]e hold that a trial court abuses its discretion in granting an intrastate forum non conveniens motion to transfer venue where, as here, the potential trial witnesses are scattered among several counties, including the plaintiff’s chosen forum, and no single county enjoys a predominant connection to the litigation."

Glenn v. Johnson, 2002 Ill. Lexis 4, Docket No. 91305 (Sup. Ct. 1/25/02). Employer’s lien does not attach to loss of consortium aspect of a settlement of a wrongful-death action. The questions in this case involved the proper distribution and allocation of funds in a third-party settlement pursuant to a wrongful-death action. The supreme court sent the case back to the circuit court to take evidence on various aspects of the damages. In doing so, the court stated that (1) a distinct loss of consortium action is unnecessary because it is duplicative of the damages allowed under the Wrongful Death Act, and (2) the employer cannot apply its lien against that part of a settlement that is attributable to loss of consortium.

Steve Merican is a sole practitioner in Oak Brook, Illinois. His practice is concentrated in appeals in state and federal courts. His URL is www.illinoislocalcounsel.com.