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The United Overbooking Debacle: How it Became A Success Story for Our Working Democracy

The incident with the United Airlines customer being dragged off an overbooked plane is firmly emblazoned in our minds by now. The viral video is unimpeachable evidence of the infliction of personal injury on a victim as the result of negligent and willful conduct by multiple actors, both corporate and governmental. Rarely are we privy to a set of facts that makes such a clear case for the plaintiff. Indeed, the case was so open and shut that it went from incident to settlement in a record 18 days. I have heard people comment that it was “easy money” for the plaintiff’s attorney. What we don’t hear is that the role of the victim’s attorney, in advocating on his behalf, making his case in the media, and stemming the tide of the impunity with which his character is attacked, is vital. We also don’t hear about all the times that an attorney fought long and hard and lost a case he truly believed in.

The plaintiff’s attorney’s role in our legal system is vital to the process that resulted in almost immediate systemic changes in the airline industry relative to this incident. United, and likely its competitors, have changed their rules regarding overbooking, the process of boarding passengers in an overbooking situation, and providing fair compensation to passengers who agree to forfeit their seat for another passenger or airline personnel. Dr. Dao’s harrowing tale was not for naught. While it represents the worst our institutions have to offer, the aftermath represents the best: a working constitutional democracy, in all its glory.

A citizen was victimized by corporate and governmental actors. Thanks to modern technology, the incident was recorded and exhaustively covered in the press. The citizen retained an attorney to enforce the law and obtain a remedy on his behalf. The pressure brought to bear by his counsel, the media and the public, resulted in swift compensation to the victim, an immediate change in policy at the corporate and governmental level, a Congressional investigation and the undertaking of measures to improve corporate policies and governmental intervention. As a society we’re often so consumed with criticism that we fail to see the success when our systems work as designed. In this case we should applaud all of those, attorneys and citizens alike, who stood beside the victim and effected abrupt change because in the end, we all benefit.

Renewed Cry for Tort Reform Will Hurt Victims and Not Stem Healthcare Costs

Congress is aiming to resurrect tort reform as part of its overhaul of the Affordable Care Act (ACA); and we can’t let them get away with it. See Seemingly undeterred by President Trump’s failed attempts to wipe the ACA off of the books, the recent iteration of the repeal legislation drafted by House Republicans scapegoats patients who are the victims of medical malpractice and lets the real bandits in the healthcare system walk away scot-free. Like I always say, immunity from responsibility promotes irresponsibility.

Citing alleged healthcare cost savings, the bill seeks to impose new limits on lawsuits involving healthcare covered by Medicare, Medicaid or private health insurance policies subsidized by the ACA. These restrictions would apply to medical malpractice claims against doctors, hospitals or nursing homes and even some product liability claims. Anyone who tells you that this is the golden ticket to reducing healthcare costs is trying to extract black and white from gray; it’s just not that simple, and it’s simply not true.

As President of the Illinois Trial Lawyers Association, I lead the charge in opposition to one of three unsuccessful attempts to enact tort reform that was ultimately struck down by the Illinois Supreme Court in Best v. Taylor Machine Works, 179 Ill.2d 367 (1997). Tort reform advocates often point to reduction of high healthcare costs, but caps in other states have neither reduced costs, nor reduced insurance premiums.

The New York Times article references studies that suggest the cost of medical malpractice, “including damages awards, legal fees and the effects of defensive medicine, may represent 2 percent to 2.5 percent of national health spending.” By any measure, this is a small number making tort reform unlikely to significantly reduce overall healthcare costs even if the suggested measures were 100% successful.

It always astonishes me when public policymakers look to the victims, society’s most vulnerable, to recoup or cap allegedly skyrocketing costs. When are they going to focus on the real culprits, like the pharmaceutical and medical equipment companies with monstrous and now infamous profit margins (think EpiPens) or so-called not-for-profit healthcare institutions that can afford to pay their executives in the multi-millions (some reported as high as $8.5 million) or insurance companies that charge astronomical premiums for pitiful high-deductible, low-coverage policies and those CEO’s aren’t suffering either (it was just announced Centene’s Michael Neidorff’s 2016 pay topped out at $22 million).

The reality is that healthcare practitioners are humans treating humans. Mistakes are inevitable. Insurance provides compensation when these mistakes occur. Like most systems, it’s not perfect, but at least it’s fairly balanced. I would be thrilled if we eliminated medical negligence and not one more person suffered as a result of malpractice, but that is an unreasonable expectation, and if the 2.5% figure is correct, it would do little to reverse soaring healthcare costs. The way to truly cut costs is to eliminate the profit motive in institutional healthcare. The same people who advocate tort reform claim the moral high ground, but isn’t it immoral to deny healthcare or, as the draft bill proposes, limit a medical malpractice recovery, because a person is poor or jobless? It’s time to focus our public policy on efforts designed to permanently correct America’s healthcare system, increase competency and reduce incidents of negligence, a win-win-win. And no one would cap those winnings.

The Contorted Law of Governmental Tort Immunity in Illinois

When you hear on the news someone had a terrible motor vehicle accident due to a pothole in the road, drown on a Lake Michigan beach where there were no lifeguards, got hurt during a school activity or was the victim of excessive force at the hands of a police officer, you might think, “the municipality or school will pay for that injury.” Like many things in the law, it just isn’t that simple.

For a myriad of reasons, many of them financial, governmental entities like cities, villages and public schools have what is called “tort immunity.” This means they cannot be held liable for civil wrongs such as negligence in failing to, repair the roads or sidewalks, provide a lifeguard on the beach, require athletes to wear safety glasses or refrain from physically harming a prisoner. The parameters under which governments and their employees are protected are dictated by the Illinois Local Governmental and Governmental Employees Tort Immunity Act. Where the real gymnastics kick in is when the courts interpret this law.

Without boring you with too many details, the Act has certain exceptions. For instance, there is immunity for executing and enforcing the law, but if the conduct rises to the level of willful and wanton misconduct then the immunity is lost and the governmental entity can be liable. If a government employee is supervising an activity on public property they are likewise immune for their negligence but responsible for willful and wanton conduct. This issue was recently addressed by the Illinois Supreme Court in Barr v. Cunningham, 2017 IL 120751. Most other conduct whether it is deemed negligent or willful and wanton is protected by immunity. A city or county may be liable for failing to repair a pothole or a sidewalk defect but it is very fact specific. It depends on size, how it was created, evidence of the length of time it existed, and other factors relating to whether the governmental entity had or could have had notice of the condition.

Other issues affecting governmental tort immunity involve whether the entity or employee had a duty. The Act is not designed to create duties on the part of the governmental entities and its employees. However, cases interpreting the Act inevitably address the duties imposed on them and whether this gives rise to liability when they breach the duty to the detriment of a member of the public. Simply stated, all is not lost if an injury is caused by a governmental entity or employee.

As an experienced Plaintiff’s attorney, I am intimately familiar with the intricacies of the Tort Immunity Act and the strategies to pursue to secure a successful result for my clients when the government is a defendant. Your case may not be a slam dunk, but odds are we will stick the landing on the vault to recovery.

Illinois Appellate Court Curbs Defendant’s Appetite for Plaintiff’s Computer Data

Handing a win to plaintiffs and their lawyers, the Second District Appellate Court vacated an order compelling the plaintiff to allow forensic imagining of personal computers used by him. In Carlson v. Jerousek, 2016 IL App (2d) 151248, the plaintiff brought a personal injury action against a motorcoach company that owned and operated a bus that rear-ended him. The victim alleged he suffered disability, emotional distress, disfigurement and loss of a normal life due in part to a brain injury. The defendants admitted liability but contested the extent of the plaintiff’s damages.

In an attempt to undermine the plaintiff’s credibility regarding his brain injury, the defendants moved to compel discovery of “electronically retrievable information” seeking full access to the plaintiff’s five personal computers and a laptop leased to him by his employer for forensic imaging. They were after metadata the would illustrate how long it took the plaintiff to complete tasks as well as his gaming habits that might demonstrate his ability to concentrate. The court granted the defendant’s motion. On reconsideration the plaintiff offered an affidavit from his employer’s counsel attesting the company laptop contained restricted information. The trial court refused consideration of the affidavit. When plaintiff still refused to produce the computers the court held him in “friendly contempt.”

On appeal the court applied a balancing test weighing both the proportionality rule and the constitutional right to privacy to find that the defendant’s discovery request was overly broad and intrusive and might ultimately lead to no discoverable information. In an extensive opinion analyzing the treatment of Electronically Stored Information or “ESI” and the nature of forensic analysis as discussed by other courts, the court ironed out a framework for evaluating such discovery requests. The requesting party must show that, (1) there is a compelling need for the information; (2) the information is not available from other sources; and (3) the requesting party is using the least intrusive means to obtain the information. The opinion makes clear that due to the sheer volume of information stored on a computer, it could contain massive amounts of personal information or confidential business data. Thus the affidavit from plaintiff’s employer’s counsel was relevant. Also, because there is a myriad of ways in which the data can be used, the defendant had to focus the request for ESI. It suggested an expert would aid in narrowing the scope of the request and directing the search thus making a litigant’s argument more compelling.

Plaintiff’s attorneys should be emboldened that Illinois courts will protect their client’s electronically stored information from such an intrusive fishing expedition. Counsel should keep the Carlson case close at hand as a guide not just to block such discovery, but also to create a viable discovery request when ESI will serve the plaintiff’s purposes.

Fraternity Brothers May be Responsible When Hazing Results in Death by Alcohol

Spring party season is just around the corner on college campuses all over the country. Greek Week and various fraternity and sorority social activities punctuate the landscape as students sprint to finish out the academic year. But there is an underbelly to this culture that is about to be examined by the Illinois Supreme Court in reviewing a case of fraternity hazing that is the stuff of nightmares for parents sending their not yet adult children off to school.

In the case of Bogenberger v. Eta Nu Chapter of Pi Kappa Alpha International, David Bogenberger and his fellow pledges were required to drink such massive amounts of alcohol at an event that they were laid in the basement of the fraternity house in “positions so they would not choke [on their own vomit].” Fraternity members allegedly were told not to call for medical help for pledges who became unconscious and ordered to delete photos and videos of the event. David died with a blood alcohol level of 0.43.

Notwithstanding these egregious facts, an action by David’s father did not survive motions to dismiss. He faced longstanding precedent regarding so-called “social host liability” founded on the public policy that anyone selling or giving alcohol may not be held liable for the actions of the consumers of alcohol.

Offering a narrow opening for plaintiffs, the appellate court scrutinized the fraternity’s actions and found the plaintiff could state a claim for negligence based on the fraternity’s conduct that resulted from David’s required participation in a fraternity event and the actions the defendants undertook in violation of the Illinois Hazing Act, a criminal statute. The court also said that the elected officers and pledge board members of the local fraternity chapter were acting within the scope of their authority when they planned and executed the event, so this could give rise to liability as well.

The court would not allow claims to proceed against any other named defendants such as the national and international branches of the fraternity, nor other non-fraternity participants in the melee. The broader arms of these fraternal organizations protect themselves by paying lip-service to a no-hazing policy that seems to satisfy insurers and courts, but is an affront to grieving parents who rely on these entities to actually enforce these policies, not turn a blind eye with impunity. At least the Bogenbergers have some hope that their son’s death will not be in vain and the individuals who sacrificed their character and integrity in saving their own skin at the expense of their “little brother” will learn loyalty and friendship means standing up and sometimes even standing alone.

Lawyers, Clients and the Matrix of Electronic Communication

The pervasiveness of electronic communication, through emails and texting, or on social media platforms like Facebook, Instagram, Twitter, Snapchat and the next new thing, is fraught with challenges for lawyers and litigants. Attorneys have to navigate the terrain on multiple levels: compliance with professional ethics and governing law, and meeting, or sometimes dashing, client expectations.

Lawyers must set the gold standard of legal compliance, so adhering to our professional ethics and current law serves all parties by demonstrating model behavior. In recent years, the attorneys’ ethics rules began requiring attorneys to maintain a proficiency in and understanding of the benefits and risks of relevant technology (see RPC 1.1, Comment 8). This has broad applications, but overall it means that we have to gain an understanding of the technology that affects our clients: plaintiffs, in my case.

Since a plaintiff’s posts on social media like Facebook, Instagram or Snapchat can be misconstrued to undermine a claim, it is up to me to advise my clients of the consequences of their social media activity and warn them against posting. The fact that an account has specific privacy settings does not shield posts on social media from discovery, these self-established barriers do not apply to the judiciary. Ethics rules bar attorneys from engaging in deceit to gain access (see RPC 8.4) but they are not precluded from issuing a formal discovery request or subpoena, rather it is imperative under the same ethics rules that they do so if it could benefit their client.

Once embroiled in litigation, plaintiffs must expect that any communication generated electronically, not just social media, but texts and emails, is fair game; and because it was generated electronically, it likely has been preserved on a server or in a cloud somewhere up there. Indeed, if it is relevant to the litigation the party may also be affirmatively compelled to preserve it. This may work to our advantage, but in most cases it can be detrimental as it is plaintiff’s burden to prove both that the defendant is at fault and that they were injured to the extent claimed. You can imagine the glee when a defendant’s attorney finds a photo of the plaintiff dancing after claiming disability stemming from his injuries following a motor vehicle accident. This fleeting snapshot, that may represent the 10 painful seconds the plaintiff was able to stand for the father-daughter dance at his oldest’s wedding, may sink his claim and paint him as liar. This is why plaintiff’s attorneys are so vigilant because the virtual representation of the plaintiff oftentimes has little relationship to the truth.

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