DCBA - Recent Case Law

Recent Case Law

By Steven R. Merican

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

These opinions recently were issued by the Illinois Supreme Court and the Appellate Court of Illinois.

Donaldson v. Central Illinois Public Service Co., 2002 Ill. Lexis 283, Docket No. 89679 (Sup. Ct. 2/22/02). (1) Illinois continues to follow Frye; the test for admissibility of scientific evidence is whether the methodology or scientific principle upon which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs. (2) Illinois law does not require unequivocal or unqualified evidence of causation.

Plaintiffs claimed that they contracted neuroblastoma, a rare form of cancer, from exposure to carcinogens that were released into the air during a cleanup of defendant’s coal-tar plant. Plaintiffs showed evidence of a cluster of neuroblastoma in the Taylorville, Illinois area. Nine out of every one million children develop neuroblastoma, so statistically, one would expect neuroblastoma to occur once every 29 years in a community the size of Taylorville. However, during a two-year period, four children in the community were diagnosed with the disease, and more soon followed. By a method of extrapolation, plaintiff’s experts testified that toxins from the coal-tar plant were a substantial factor in causing the neuroblastoma. After a lengthy trial, judgment was entered in favor of plaintiffs.

One of the issues was whether plaintiff’s experts should have been allowed to testify. The Court ruled that the expert testimony properly was received at trial. The Court strongly reiterated that Illinois courts exclusively follow the Frye test for admissibility of scientific evidence. Under Frye, scientific evidence is allowed if the trial court determines that the evidence is based upon a generally accepted methodology or principle. The Court stated that "general acceptance does not require that the methodology be accepted by unanimity, consensus, or even a majority of experts." The Court rejected the "gatekeeper" role for trial judges that is used in the federal courts and has been espoused by some Illinois appellate courts. The Court also rejected the Frye-plus-reliability test that some Illinois appellate courts suggested and used.

Defendant also fought the judgment on the basis that plaintiff did not establish causation. The Court rejected defendant’s arguments that plaintiffs were required to establish "generic causation" (coal tar is capable of causing neuroblastoma) and "specific causation" (exposure to coal tar from this site in fact occurred and caused the neuroblastomas). The Court stated that cause-in-fact could be established with circumstantial evidence. "Illinois law does not require unequivocal or unqualified evidence of causation." The Court also acknowledged that it may be impossible for plaintiffs to show the exact level of exposure to a carcinogen in an environmental exposure case like this. The court "depart[ed] from traditional concepts of causation," and ruled that "plaintiffs were not required to show the exact amount of exposure."

Reda v. Advocate Health Care, 2002 Ill. Lexis 285, Docket No. 90487 (Sup. Ct. 2/22/02). Claim of a brain injury does not necessarily place plaintiff’s mental condition at issue, so psychiatric records were not discoverable. Emilio Reda developed an acute thrombosis of an artery in his leg after he had a right knee replacement. He claimed injuries from the defendant doctors’ failure to diagnose the worsening condition. Plaintiff asked for damages for the brain injury that he suffered, but did not specifically request damages for his deteriorated mental condition. However, he and his wife, who had her own loss of society claim, answered defense questions at their depositions about Emilio’s intellectual and emotional state.

The circuit court ordered production of records from Emilio’s psychiatrist. A divided appellate court affirmed. The Supreme Court reversed on the theory that plaintiff "did not place his mental condition at issue merely by claiming damages for what is a neurological injury, i.e., stroke and/or other brain damage." The Court analyzed the privilege established in the Mental Health and Developmental Disabilities Confidentiality Act, and ruled that plaintiff’s assertions of neurological injury did not directly implicate psychological damage. The court also ruled that the psychiatric records remained privileged even if they have a bearing on causation: ". . . [Relevancy] is not decisive of whether a plaintiff has introduced his mental condition as an element of his claim."

Carroll v. Paddock, 2002 Ill. Lexis 13, Docket Nos. 90771, 90772, 90778 (Sup. Ct. 2/7/02). A not-for-profit hospital that is not conducting "public business" is not entitled to the protections of the Governmental Tort Immunity Act. The decedent committed suicide while under the care of the defendant hospital, clinic, and doctors. The estate sued for malpractice two years after the incident, so the defendants moved for dismissal based on the one-year statute of limitations in the Governmental Tort Immunity Act. The case turned on whether "a not-for-profit charitable hospital and a not-for-profit mental health care organization are ‘local public entities’ within the meaning of section 1-206 of the Local Governmental and Governmental Tort Immunity Act." Referring to the Act, the Court stated that a not-for-profit corporation must be "‘organized for the purpose of conducting public business’ in order to satisfy the definition of ‘local public entity.’" The Court ruled that a local public entity "must either be owned by or operated and controlled by a local governmental unit." The not-for-profit must be "tightly enmeshed with government either through direct governmental ownership or operational control by a unit of local government." In this case, the hospital was privately owned, and there was no difference between this hospital and other, for-profit hospitals. Therefore, the shorter limitations period in the Governmental Tort Immunity Act did not apply.

IRMO Murphy, 2002 Ill. App. Lexis 91, Docket No. 4-01-0292 (App. 2/6/02). Party prosecuting an appeal under the IMDMA must obtain at least 50 percent of the relief sought to be entitled to award of attorney fees. Catherine Murphy’s post-decree petition to modify child support was partially granted. She appealed four issues, including whether the circuit court awarded enough child support. The appellate court agreed that that Catherine should have been awarded more child support, but affirmed the circuit court on the other issues. On remand, Catherine filed a petition for attorney fees incurred in prosecuting the appeal. The circuit court awarded part of the fees Catherine requested. Her former husband appealed from that award.

Section 508(a)(3.1) of the Illinois Marriage and Dissolution of Marriage Act allows the circuit court to award attorney fees for the prosecution of any claim on appeal if the prosecuting party has substantially prevailed. This case turned on whether Catherine "substantially prevailed" in her appeal. In a case of first impression, the split appellate court ruled that Catherine had not substantially prevailed because she "obtained a mere fraction of the relief she sought." The court stated that its ruling was not based on the fact that Catherine prevailed on only one of four issues on appeal. "Rather, our analysis measures the relief sought against the relief obtained. . . ."

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