Vested Interest - December 1997 Issue

The President’s Thoughts

Unless you’ve been off the planet or outside reality’s touch, you have no doubt learned of the Supreme Court’s ruling in Kunkel v. Walton. The Court declared that requiring a plaintiff to consent to a full and unrestricted disclosure of his/her medical history was unconstitutional. Without dissent, the Court held that section 2-1003(a) of the Code of Civil Procedure, as amended by the Civil Justice Reform Act of 1995, violated the separation of powers and privacy provisions of the Illinois Constitution of 1970.

Although there have been Supreme Courts whose opinions have read like a drive through Nebraska, this Court’s opinion merits your perusal. The well reasoned analysis of the separation of powers doctrine fosters a sense of optimism concerning the remaining challenges to PA 89-7. Further, the dicta is compelling. In a gratuitous comment, the Court raised the spectre of illicit ulterior motive when it stated:

"Instead, section 2-1003(a) seems to be designed to discourage tort victims from pursuing valid claims by subjecting them to the threat of harassment and embarrassment through unreasonable and oppressive disclosure requirements."

We have maintained from the onset that such subterfuge was endemic to the entire tort reform effort. Hopefully, the Court’s observations in Kunkel will lead them to conclude that the remaining tort reform provisions are the spawn of the same malevolent intent.

The Court’s finding that section 2-1003(a) was an "unreasonable invasion of privacy" and violated Article 1, section 6 of the State constitution may itself provide opportunity to break new ground. It’s clearly articulated declaration of a constitutional right to privacy may prove landmark in an age of big government and invasive business practice. It is certainly fertile ground for further lawyering.

This decision, as well as the rulings on the Structural Work Act and the Judicial Redistricting Act, demonstrates this Court’s commitment to the preservation of its citizens judicial rights. We commend the Court and are confident that it will continue to protect the right to trial by jury against those who would allow trial by legislation.

On the national front, factions of Congress have aggressively been at work attempting to foist anti-consumer legislation. ATLA and its allies have worked tirelessly to combat a barrage of tort reform bills including product liability, medical malpractice, auto no-fault, the global tobacco settlement and even limits on attorneys fees. The good news is the trial lawyers and their clients emerged unscathed as Congress was unable to pass any major "tort reform turkeys" during the first session. The bad news is that this Congress has another year before it adjourns and has no intentions of giving up the fight. In light of the upcoming elections, you can count on a full scale assault. As usual, we will have to be ready.

Meantime, let’s enjoy the upcoming holiday whether you call it Christmas, Hanukkah, Kwanzaa or some other designation. Regardless, it remains a time to promote "peace on earth and good will to men" and women. It reminds us that despite our differences, we are all in this together and need to make brotherhood part of our agenda. All too often, we advocate the betterment of our fellow man/woman as a means to an end with our fellow man/woman getting lost in the process.

At this time of year we are asked to put aside our propaganda and posturing and take a good look at the big picture. We should see that charity, tolerance and compromise are part of the landscape. Accordingly our holiday spirit should cause us to act upon those virtues, whether by a helping hand, an act of kindness, or an offer of peace. It all adds up. After all, Tiny Tim didn’t say "God bless us everyone" for nothing.

So, as we prepare to celebrate our respective holidays, keep in mind the ideals of the season. As for me, I’m donating to Toys for Tots and sending a fruit basket to Ed Murnane.

Happy Holidays.
Laird M. Ozmon, President
Illinois Trial Lawyers Association