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Articles Posted in Recent Legal Decisions

football-helmet-1401350_1920-300x197The First District Appellate Court of Illinois held in Nakamura v. BRG Sports, LLC that a former NFL player’s personal injury suit against his helmet manufacturer stemming from a severe concussion the player suffered was allowed to proceed as there was an issue of fact as to when the player discovered his injury.  The trial court initially dismissed the player’s action as being time barred by Illinois’ two-year statute of limitations for personal injury actions.

In August of 2013, Haruki Nakamura was taken to the hospital after suffering a severe concussion during a preseason football game while playing for the Carolina Panthers.  Nakamura’s condition worsened following the concussion as he continued to suffer from extreme headaches, impaired cognition, and depression.  Nakamura was eventually released by the Panthers and he was forced to retire from football.  After his retirement, Nakamura filed a disability insurance claim in November of 2013 claiming that he was suffering from several post-concussive symptoms and that he was permanently disabled.  During the course of litigation involving his disability claim, Nakamura was diagnosed as having chronic post-concussion syndrome.  Nakamura then commenced a separate personal injury action in October of 2017 against the helmet manufacturer, Riddell, for negligence and strict product liability alleging that the helmet he was wearing at the time of the concussion was defective and failed to protect him from the head trauma that resulted in latent neurodegenerative disorder.

Under Illinois’ discovery rule, the statutory limitations period starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused.  The trial court dismissed the personal injury action finding that Nakamura’s claims were barred by the statute of limitations because Nakamura knew of his injury at least two years prior to commencing suit.  As evidence of Nakamura’s knowledge of his injury, Riddell directed the trial court to the disability claim litigation commenced in November of 2013 wherein Nakamura alleged he suffered a concussion and was permanently disabled in 2013.

law-4617873_1920-300x200The Illinois Supreme Court issued a recent decision highlighting the dangers of commencing an appeal following a jury verdict without first filing a post-trial motion. Specifically, the Supreme Court held that a litigant is required to file a post-trial motion under 735 ILCS 5/2-1202 in order to challenge a jury’s verdict on one claim even though the trial court entered a partial directed verdict on a separate claim in the case.

In Crim by Crim v. Dietrich, the Crims filed a medical malpractice action against their doctor for claims relating to the birth of their son. The case proceeded to trial on both of plaintiffs’ claims against the doctor for her (1) failure to obtain informed consent to perform a natural birth, and (2) negligent delivery. Following the presentation of the Crims’ case, the doctor moved for and was granted a partial directed verdict on the issue of informed consent. After the parties presented additional evidence and argument, the jury returned a verdict in favor of the doctor on the remaining professional negligence claim. The Crims did not file any post-trial motions. Instead, they filed a notice of appeal.

On appeal, the Crims sought review solely as to the granting of the partial directed verdict. The Fourth District Appellate Court found that the partial directed verdict was improper, reversed the judgment and remanded the case back to the trial court for a new trial. When the case returned to the trial court, there was a dispute as to whether the reversal of the judgment and remand of the case for a new trial required a new trial on the informed consent claim and the negligence claim. Ultimately, the trial court ruled that the new trial would proceed on both claims but certified the issue for appellate review. Back on appeal, the Fourth District agreed with the trial court that the new trial should proceed on both claims. Leave to appeal this issue to the Supreme Court was then granted.

law-OXGhu60NwxU-unsplash-1024x566The First District Appellate Court issued a recent decision addressing whether a pregnant woman, who is compelled to abort her fetus because of a possible injury to the fetus caused by a doctor’s negligence, can sue the doctor for the injury and death of her unborn child even though she elected to have the abortion.

The First District answered in the affirmative and ruled that the woman’s claims against the doctor for the wrongful death of the unborn fetus could proceed under Illinois’ Wrongful Death Act.

In Thomas v. Khoury, Monique Thomas was admitted to the hospital for elective surgery and during presurgical testing, her urine and blood samples displayed elevated levels of hCG, which is a potential indicator of pregnancy. An ultrasound failed to definitively show the pregnancy even though it was consistent with a pregnancy of fewer than four weeks. The surgeon told Thomas not to worry about the test results and that she was not pregnant. Thereafter, Thomas proceeded with the surgery under general anesthesia.

courtroom-898931_1920-3-300x226The Fifth District Appellate Court issued a recent decision in Eyster v. Conrad finding that a deceased defendant’s discovery deposition could be introduced as substantive evidence at trial in a personal injury suit.  At issue in Eyster was the lower court’s finding that the introduction of the discovery deposition would not do substantial justice between the parties and therefore could not be used as evidence.  The Fifth District reversed and held that the trial court misapplied the discovery rule.

As Illinois is the only state that differentiates between discovery and evidence depositions, the ability to use a discovery deposition as evidence at trial is a unique issue faced by Illinois practitioners.  The limited purposes for which a discovery deposition may be used as evidence are enumerated in Rule 212(a).  Under Rule 212(a)(5), a discovery deposition may be used as evidence at trial “if the court finds that the deponent is not a controlled expert witness, the deponent’s evidence deposition has not been taken, and the deponent is unable to attend or testify because of death or infirmity.”  A court must also find that the evidence sought to be introduced would do substantial justice between the parties.

In Eyster, the plaintiff commenced a personal injury suit in 2014 against the defendant alleging that the defendant’s negligent operation of his vehicle caused an accident between the parties and resulted in injuries to the plaintiff.  In May of 2015, the plaintiff took the discovery deposition of the defendant.  During the deposition, the defendant provided testimony that reflected he may have been negligent while driving his car.  Two years later, the defendant died, and the trial court appointed a representative for the defendant to defend the suit.  An evidence deposition of the defendant never took place.

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