September 23, 2010

“Two Issue Rule” Saves General Verdict For Doctor In Medical Malpractice Case

Wanda Boone died after her surgeon did not remove a cancerous tumor from her colon during a first surgery. The tumor was removed during a second surgery five days later. Wanda’s estate sued the surgeon, James Boffa, for medical malpractice, claiming Wanda died from the stress of the second surgery.

After trial, a jury found in favor of Dr. Boffa. The jury’s finding was a general verdict – i.e., the jury was not asked, and did not say, what defense theory it relied upon.

Dr. Boffa had two theories of defense. The First District Illinois Appellate Court rejected one of those theories — that there was another sole proximate cause for Wanda’s death — for lack of evidence. Wanda’s estate argued that the general verdict for Dr. Boffa therefore should be reversed.

The appellate court disagreed. The court relied on the “two issue rule” in affirming the doctor’s verdict. Here’s how the appellate court explained it:

“… [W]hen the jury returns a general verdict for the defendant, the 'two issue rule' is applied by focusing on the defenses * * *." … Thus, "where two or more defense theories are presented to the jury and it returns a verdict for the defense, an appellate claim of error as to one defense theory will not result in reversal since the verdict may stand based on another theory." …

In the instant case, defense counsel asserted two proximate cause defenses. First, the decedent's preexisting health problems, which included congestive heart failure, diabetes, and renal failure. Dr. Boffa opined that the decedent died from multisystem organ failure beginning with the decedent's impaired kidney function, which affected her heart and lungs.

And second, the failure of gastroenterologist Dr. Nasiff to precisely pinpoint the location of the tumor in his colonoscopy report. Defense counsel contended the decedent was required to undergo a second colon surgery because the colonoscopy report misled Dr. Boffa as to the precise location of the tumor during the first surgery. [This was the “other sole proximate cause defense the appellate court rejected.]

Because the jury rendered a general verdict for defendant and could have relied upon the first proximate cause defense to find no liability and because there was ample evidence supporting this defense …

The whole case, Robinson v. Boffa, No. 1-07-1128 (6/14/10), is available by clicking here.

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September 19, 2010

Landowner Ordered To Pay Appellate Attorney Fees In Due Process Dispute

Leland Stahelin and JES Ventures owned property that bordered the Morton Arboretum in DuPage County, Illinois. The county forest preserve and the arboretum wanted to preserve the property in its undeveloped state. After purchase negotiations failed, the forest preserve sued the owners in a condemnation suit, then withdrew the suit. At the same time, the forest preserve passed an ordinance that stated “the acquisition of the property in the future would be important to furthering the statutory purposes of the [District].”

The owners claimed they could not develop the property for commercial purposes because the ordinance stated the government’s intention to condemn it. So the owners sued the forest preserve and the arboretum under the due process clause of the Fifth Amendment of the U.S. Constitution for engaging in a conspiracy to take the land. The trial court dismissed that lawsuit. The arboretum then asked the trial court to award attorney fees. Meanwhile, the owners appealed the dismissal, but the appellate court affirmed. The owners’ petition for leave to appeal to the Illinois Supreme Court was denied. The arboretum then asked for an award of its attorney fees incurred in defending the owners’ appeal.

The trial court awarded the arboretum its fees under Section 1988 [federal civil rights statute] for defending the appeal, but not for defending the case in the trial court. The owners then appealed the award of attorney fees.

The Second District Illinois Appellate Court agreed that the award of attorney fees under Section 1988 was appropriate. The court stated that the owners’ first appeal was frivolous, and that they should have known it, so it was not an abuse of discretion to award the arboretum’s attorney fees.

The owners then argued that an award of appellate attorney fees was improper because the arboretum did not request the fees in the appellate court under Illinois Supreme Court Rule 375 [allowing sanctions for a frivolous appeal]. But the appellate court ruled the owners forfeited this argument because they raised it for the first time on reconsideration in the trial court. The appellate court also stated, even if there had not been a forfeiture, Rule 375 did not provide an exclusive method for getting a fee award. Here is what the appellate court said:

Even if we had found no forfeiture, plaintiffs' argument lacks merit. While it is true that Rule 375 does provide a path for the award of attorney fees associated with defending against a frivolous appeal, it is not the only route, and the failure to file a motion under Rule 375 does not preclude a section 1988 motion. Section 1988 provides another mechanism for fee-shifting where a litigation matter is deemed frivolous, and it applies to all phases of litigation, at the trial and appellate levels.

Read the whole case, Stahelin v. Forest Preserve District of DuPage County, No. 2-09-0249 (5/17/10), by clicking here.

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September 12, 2010

I’m Looking For …

An honest man? Nah, that’d take too long.

But I am looking for a great strategist and brief writer who wants to write criminal law appeals.

Call (630-579-6460) or email ( if you’re interested.

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September 12, 2010

Notice Of Appeal Fails To Confer Appellate Jurisdiction In Legal Malpractice Case

The beneficiaries of the Victoria R. Fitch Trust sued McDermott Will and Emery, the law firm that drafted Victoria’s estate plan, and Dietrich and Dietrich, the accounting firm that advised Victoria. The beneficiaries alleged a variety of legal claims for mishandling the estate plan.

The first count of the Complaint was against Dietrich only. The second count was against Dietrich and McDermott. The third was against McDermott only. The trial court dismissed all three counts because they were not filed before the statute of limitations expired.

The beneficiaries appealed. But their Notice of Appeal stated only that they were appealing the dismissals of Counts I and II against Dietrich. The Notice of Appeal did not mention Counts II and III against McDermott.

McDermott asked the appellate court to dismiss the appeal because, the firm argued, the Notice of Appeal was deficient. The Second District Illinois Appellate Court agreed that the Notice of Appeal did not invoke the court’s jurisdiction to hear the appeal against McDermott. Here is how the appellate court explained its ruling.

… [When] an appeal is taken from a specified judgment, the appellate court acquires no jurisdiction to review other judgments or parts of judgments that are not specified in or inferred from the notice of appeal … The exception to this rule is when a nonspecified judgment can be said to have been a “step in the procedural progression leading” to the judgment specified in the notice of appeal … The purpose of the notice of appeal is to inform the prevailing party in the trial court that his opponent seeks review by a higher court …

In their notice of appeal, plaintiffs [beneficiaries] sought review of the September 18, 2007, order only insofar as it dismissed with prejudice counts I and II in favor of the Dietrich defendants … Even construing this notice of appeal liberally, we cannot say that McDermott was fairly and accurately advised that plaintiffs sought relief against the portion of the September 18, 2007, order that pertained to it. Thus, we find that our jurisdiction extends only to counts I and II of the original complaint and only as to the Dietrich defendants.

Click here for the whole opinion, Fitch v. McDermott, Will and Emery, No. 2-09-0029 (4/28/10).

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September 5, 2010

Anonymity of Internet Posters Reviewed De Novo

This is an important Illinois case inasmuch as it has generated one of just a handful of appellate opinions that deal directly with the law as applied to internet use and political speech.

Donald Maxon claimed he was defamed by comments posted by unidentified members of the public on a web version of the Times, a newspaper published by Ottawa Publishing Company. Certain unedited comments, Maxon felt, accused him of bribing city council members in return for a favorable vote on a city ordinance.

Ottawa Publishing knew the identities of the commenters, who wrote anonymously on the internet page. Maxon wanted to sue the commenters. To find out whom they were, Maxon filed a petition under Illinois Supreme Court Rule 224 [allowing pre-trial discovery “for the sole purpose of ascertaining the identity of one who may be responsible in damages …”] demanding Ottawa Publishing to identify the commenters.

The trial court denied Maxon’s petition. It ruled that the petition as a matter of law did not defeat the right of the commenters to speak anonymously on the internet, and that the comments were non-actionable opinions. Maxon appealed.

Maxon and Ottawa fought over the standard of review in the appellate court. Appellate review of most rulings on Rule 224 petitions is by the abuse-of-discretion standard, just like review of a typical discovery ruling. But the Third District Illinois Appellate Court ruled that a de novo standard applied in this case. The appellate court used the heightened review standard because “[w]here a trial court's exercise of discretion relies upon a conclusion of law, our review is de novo.”

In the end, a split appellate court reversed and allowed Maxon’s petition to force disclosure of the commenters’ identities. Read the whole opinion, Maxon v. Ottawa Publishing, No. 3-08-0805 (6/1/10).

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September 3, 2010

Failure To Object At Trial Forfeits Appeal Of Violation Of Favorable Pre-Trial Evidentiary Ruling

This opinion is useful because it reiterates the point that a favorable pre-trial evidentiary ruling may not be sufficient to preserve the issue for appeal if your opposing counsel violates the ruling at trial. You must object at trial when the evidence is offered.

In this medical malpractice case, the defendant and a non-party witness testified that the aggrieved patient wanted to continue the allegedly negligent medical treatment despite reported problems. On appeal, the patient argued the testimony violated a pre-trial order that prohibited “testimony that Ms. Hardy [plaintiff] was comparatively negligent.” Unfortunately for Ms. Hardy, she neither objected to the testimony nor moved to strike it.

The Third District Illinois Appellate Court ruled that Ms. Hardy forfeited appeal of the argument. Here’s what the court said:

“Once a motion in limine is granted, the movant must be vigilant and object when evidence is presented which may violate the order. The purpose of an in limine order is to exclude inadmissible evidence, not to create a trap which results in a new trial if the court in retrospect determines the rule was violated." … "A motion to strike is required to preserve errors in the admission of evidence. * * * [A] party opposing evidence waives any objection unless a motion to strike is made as soon [as] the objectionable nature of evidence becomes apparent." … Plaintiff failed to object to, and never moved to strike, either nurse Rasche's or nurse Cordero's references to plaintiff's wishes to continue the IV. Plaintiff has forfeited the issue.

The whole case, Hardy v. Cordero, No. 3-09-0109 (4/8/10), is here for the clicking.

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