Vested Interest - Tort Briefs - January 1998 Issue

Illinois Supreme Court Strikes PA 89-7 In Toto

In a sweeping victory for all Illinoisans, the Illinois Supreme Court has declared all of Public Act 89-7, the Tort Deform legislation, unconstitutional. The bipartisan, 5-1 majority decision was written by Justice McMorrow, with a concurrence by Justice Bilandic and a concurrence and dissent by Justice Miller. Justice Heiple took no part in the decision.

The Court struck four specific provisions of PA 89-7: caps on noneconomic damages, tortfeasor contribution, joint and several liability, and medical records privacy. The decision then declared those parts of the Act to be non-severable from the rest, and struck the Act in its entirety.

The Court declared caps on noneconomic damages to be unconstitutional as violative of the special legislation clause of the 1970 Illinois Constitution.

The Court found:

"[T]he arbitrary and automatic cap on compensatory damages for noneconomic injuries in only certain tort cases parallels the harm of the arbitrary classifications [previously] stricken by this court." (at 28)

The Court also found that the caps violate the separation of powers provision, noting, "The cap on damages is mandatory and functions wholly apart from the specific circumstances of a particular plaintiff’s noneconomic injuries. Therefore,
section 2-1115.1 unduly encroaches upon the fundamentally judicial prerogative of determining whether a jury’s assessment of damages is excessive within the meaning of the law." (at 34)

The Court found the Tortfeasor Contribution and Joint and Several Liability sections of the act to be in conflict with each other. Since both were adopted at the same time, the Court could not say which was to supersede which; both were struck. The Court also found that Section 2-1117(b) of the Act, which provides for the continuation of joint and several liability in medical malpractice cases in the event that caps on noneconomic damages are found unconstitutional, violated the special legislation provision of the 1970 Illinois Constitution. (at 49).

The Court used its discussion of medical waiver, previously addressed in Kunkle v. Walton (No. 81176, Nov. 20, 1997) to add its imprimatur to the 1986 appellate case Petrillo v. Syntex Laboratories (148 Ill. App. 3d 581). In Best, the Court concluded, "We believe that the rationale in Petrillo is sound and that there is a strong public policy against ex parte conferences between the plaintiff’s health care practitioners and defendants or their representatives. We furtherbelieve that the privacy interest referred to in the "certain remedy" clause of section 12 provides a constitutional source for the protection of the patient’s privacy interest in medical information and records that are not related to the subject matter of the plaintiff’s lawsuit. (at 73-4)

Finally, the Court addressed the issue of severability. Although PA 89-7 had a severability clause, the Court found that the plain intent of the legislature was that the various sections of the Act were not severable. The court based this conclusion on the internal cross references between different sections of the Act, on statements made during legislative debate, and on the process by which the Act was passed into law. The Court noted,

"This lengthy piece of legislation with its numerous provisions affecting the landscape of tort liability was presented to the full house for discussion just hours after its distribution, and was put to a vote the next day. No amendments were considered or accepted. On the contrary, House Bill 20 was adopted unchanged, as an integrated "reform package". One inference to be drawn from the manner in which the legislation was adopted is that the individual pieces of the package are inseparable from the whole." (at 79)

The Court concluded, "In summary, core provisions of Public Act 89-7 have been declared unconstitutional by this court. Without these core provisions, which were essential to the passage of the act and which are inseparable from the remainder of Public Act 89-7, the legislation must fail in toto. ... Accordingly, we hold that Public Act 89-7 is void in its entirety." (at 80-1)

Copies of the decision, Best v. Taylor Machine Works, (Nos. 81890. 81891, 81892, and 81893) are available from the ITLA office - 800-252-8501.

ATRA Praises Illinois for Impact of Unconstitutional, Unenforced Tort Deform

The American Tort Reform Association has issued a report praising the tort deform legislation signed into law in 1995 for reducing the number of lawsuits filed. ATRA does not acknowledge that the law was found unconstitutional by trial courts shortly after signing and has not been enforced. Nor does ATRA mention the questionable lawsuits filed by businesses against other businesses and, sometimes, consumers, or the increase in lawsuits filed by its own members in Illinois after the 1995 law was signed. No word yet from ATRA on whether the Best decision will cause it to revise its findings. (ATLA Advocate, December 1997)

ATLA Ranked Among Top 5 Most Influential Lobbies in DC

A poll by the Mellman Group and Public Opinion Strategies for Fortune magazine ranked the Association of Trial Lawyers of America the 5th most influential organization in the nation’s capitol. The top five also included, in order, the AARP, the American Israel Public Affairs Committee, AFL-CIO, and the National Federation of Independent Business. The ranking is based on an unscientific sample of 329 surveys returned out of 2,165 mailed to all members of Congress, top staffers, senior White House aides, and lobbyists. The survey asked recipients to rank 120 organizations. Least influential? The Investment Company Institute, the American Academy of Family Physicians, the Wine Institute, the American Academy of Ophthalmology, and, dead last, The Center for Science in the Public Interest. (Fortune, December 8, 1997)

U.S. Supreme Court Appears to Tilt Against Same-Sex Harassment

In oral arguments over whether sexual harassment laws cover workers and supervisors of the same sex, six of the nine justices appeared to believe that same-sex harassment was illegal under current law. Joseph Oncale claimed that his supervisors at Sundowner Offshore Services sexually pursued and harassed him while they worked on an oil rig in the Gulf of Mexico. Sundowner claims that, even if true, the acts are not covered under federal sexual harassment laws. The three named supervisors claim that the acts constitute only sexually oriented hazing and locker room horseplay. The Clinton administration argued in favor of plaintiffs. The appellate court ruled that same-sex harassment is not covered. (AP & Reuters, December 3, 1997)

AMA Announces Patient Organization, Releases Survey

The American Medical Association has repsonded to critcism that it is insensitive to the problem of patient injury by creating a subsidiary, the National Patient Safety Foundation. The NPSF is funded by the AMA, and led by Martin Hatlie, a long-time AMA staff researcher specializing in liability issues. Others connected with the NPSF include the National Consumers League and Research!America. At the announcement, the NPSF released a Louis Harris & Associates survey of 1,513 Americans finding that 42% of respondants reported that they or someone close to them has experienced a medical error, including misdiagnosis, medication errors, and mistakes during a procedure. (Press Release)

RAND Institute Recommends Changes to PPD in California Workers’ Comp

The RAND Institute has issued a draft report on California’s workers’ comp system, recommending changes in payments to workers with permanent partial disability. The report recommends (1) an elective fast-track system for minor PPD claims (claimants rated below 20 or 25), which features a summary process to determine work-relatedness; (2) wage-loss; (3) increased return-to-work; and (4) "instituting routine procedures for testing the consistency of" disability ratings." The report has been criticized by labor and employers groups. (The report, "Findings and Recommendations on California’s Permanent Partial Disability System", is available at the "Hot Topics" area of the RAND webpage: http://www.rand.org)

Shareholders Sue Waste Management for Inflating Profits

A class action suit has been filed on behalf of shareholders in Waste Management, Inc, between July 17, 1996 and October 30, 1997, alleging that the company "puffed up" its earnings in violation of federal securities laws. The suit contends that true accounting will result in a write-down of over $1 billion. The company had incorrectly listed income from the sale of assets, resulting in an overvaluation. During the period covered by the suit, shares of Waste Management fell from $37.50 to under $22.00. (Businesswire, December 1, 1997)

Injury Victim Trades Punitive Damages for Safety Plan

In 1995, an oil well explosion sent John Caballero 30 feet into the air, and resulted in broken vertebrae in his neck and back, a crushed ankle and foot, and permanent damage to his vision and hearing. A jury issued Caballero a verdict for $12.5 million in compensatories and $30 million in punitives. Defendant Esenjay Petroleum appealed, but then agreed to settle when Caballero offered to trade punitive damages for a safety program at all of the companies oil wells. The program will include new safety procedures for Esenjay and all of its sub-contractors. (AP, December 1, 1997)

Dick Butkus Sues Clothing Maker Over Image

Hall of Fame Chicago Bears linebacker Dick Butkus has filed a lawsuit against Champion Products, Inc, owned by Sara Lee Corp, for using his image to sell football jerseys without his permission. Champion is offering a jersey with Butkus’ photo and player number, and an ad for the product includes a picture of Butkus holding a Bears helmet. Butkus seeks unspecified damages and wants to have the jerseys and ads destroyed. Also named in the lawsuit is The Sports Section retailer whose catalogues include the ad. (AP, December 3, 1997)

Frat Fan? Bud Man.

A study conducted by researchers at Cornell University and Southern Illinois University found that members of fraternities and sororities tend to drink more than so-called "independent" undergraduates, and that leaders in Greek societies tend to drink the most. The study consisted of a survey of 25,411 students at 61 colleges. Researchers did not conclude if Greek life encouraged drinking or if students with a propensity to drink more were drawn to Greek societies. At least seven college students across the country have died in alcohol-related incidents since the start of the current school year. (AP, December 16, 1997)

Gambling Meccas have Higher Suicide Rates: Study

A report by UC-San Diego sociologist David Philips found that three cities with legalized gambling have significantly higher suicide rates. Las Vegas, Reno, and Atlantic City all have suicide rates that are well above normal. A city the size of Las Vegas would be expected toexperience around 310 suicides each year, but reported nearly 500 in 1990, the last year of the report. Atlantic City, which would be expected to have 45 suicides a year and did have 52 in 1975, three years before legalized gambling, had 64 in 1990. The study was unable to conclude that gambling was a cause of suicide, but did note that gamblers are more likely to have problems like alcoholism and drug use, which are also linked to suicidal tendencies. (AP, December 16, 1997)