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Recent Illinois Court Decisions

Legal Malpractice 1st Dist.
Herrera-Corral v. Hyman, No. 1-09-2923 (March 31, 2011) Cook Co., 1st Div. (HALL) Affirmed.
Defendant pled guilty in 2002, in federal court, to drug crime. In 2008, Defendant sued attorney for legal malpractice, arising from attorney's ineffective assistance of counsel. Allegation in his complaint that indictment against him had been dismissed did not sufficiently plead "actual innocence" for purpose of his legal malpractice claim, and this also precludes his claims of breach of fiduciary duty and breach of contract as those claims arose from same acts of legal malpractice. Proof of actual innocence is needed to state a cause of action for legal malpractice against a criminal defense attorney, and an acquittal based on exclusion of evidence is not related to innocence. (HOFFMAN and ROCHFORD, concurring.)

Experts, Medical Malpractice 1st Dist.
Christmas v. Huga, No. 1-10-1743 (April 5, 2011) Cook Co., 2d Div. (CONNORS) Affirmed.
Court properly dismissed, with prejudice, medical malpractice complaint against two podiatrists, on grounds that Section 2-624 reviewing physician, a licensed Wisconsin osteopathic physician, was not licensed in podiatry at time of his authorship of Section 2-622 report. Because reviewing physician did not hold a podiatrist's license at the time, he was not a health professional licensed in the same profession, with the same class of license, as the Defendants, within the meaning of Section 2-622, and dismissal with prejudice is warranted as this defect was not a mere technical error. (KARNEZIS, concurring; HARRIS, dissenting.)

Res Judicata
Goodman v. Hanson
Plaintiff, executor and principal heir of estate and co-trustee and principal beneficiary of trust, sued attorney and law firm for legal malpractice for failure to file Illinois estate and generation-skipping transfer tax return; suit was settled, and parties signed Release. Plaintiff then sued same attorney and accounting firm for accounting malpractice, based on same facts as alleged in first suit; but alleging that attorney failed to take proper, allowable deductions on Federal tax return. Release barred Plaintiff's claim under second suit. Res judicata did not apply to bar Plaintiff's claim under second suit, because agreed order of dismissal is not a final judgment on the merits, which is required element for res judicata to apply. (CAHILL and McBRIDE, concurring.)

Common Fund
Wendling v. Southern Illinois Hospital Services
Hospitals filed liens against proceeds of personal injury suits arising from Plaintiffs' injuries in auto accidents. Common fund doctrine is inapplicable to a hospital's statutory lien under the Health Care Services Lien Act, and thus does not allow recovery of attorney fees out of hospital liens. Although hospitals benefitted from attorneys' efforts in pursuing suits, Hospitals had no opportunity to choose their own counsel or to negotiate settlement on their own terms in the person injury litigation; and Plaintiffs and hospitals do not share the same interests in the fund as they are not similarly situated as to the fund. (FREEMAN, THOMAS, GARMAN, and THEIS, concurring.)

As to the second count, the Court concluded that the AUUW statute must be read in conjunction with the FOID Card Act to determine whether defendant was exempt from having a valid FOID Card because he had a valid Indiana handgun permit. The Court went on to hold that the provision in the FOID Card Act - excepting "nonresidents who are currently licensed or registered to possess a firearm in their resident state" [430 ILCS 65/2 (b)(10)] from the requirement of having a FOID Card in order to acquire or possess a firearm within Illinois - should be applied to the AUUW statute. Defendant's Indiana permit substituted for the FOID Card requirement under the AUUW statute.

Both of defendant's convictions of AUUW were reversed. The reversal of the first count was a fairly predictable result in light of the recent Diggins case. The reversal of the second count, however, appears to have dealt with an issue of first impression in Illinois. The Court's decision, and Justice Garman's special concurrence, clarify that the FOID Card Act is to be read in conjunction with provisions of the Criminal Code referencing FOID Card requirements in order to give full effect to the intent of the legislature and to avoid absurd results.

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Representative Cases

  • $8.3 Million to a tire serviceman who suffered brain damage and quadraparesis as a result of the explosion of a defective multi-piece rim.
  • $4.0 Million to the estate of a man who died after knee replacement surgery at Evanston Hospital.
  • $3.1 Million to the estate of a woman who died post child birth at the University of Chicago Hospital.
  • $2.2 Million to the estate of a woman that was killed in a roll over vehicle accident on the Kennedy Expressway.
  • $2.1 Million to the estate of a over medicated man who died at Rush University Medical Center.
  • $2.0 Million to a tuck pointer who fell from scaffolding.
  • $1.0 Million to the estate of an elderly woman who fell from her bed at the Rehabilitation Institute of Chicago.
  • $1.0 Million to the estate of a woman killed by a City of Chicago fireman.
  • $1.0 Million to the estate of a single woman killed in an airplane crash.
  • $1.0 Million to the estate of a man who died in Loyola Hospital as a result of the mechanical failure of a respirator.
  • $1.0 Million for the death of a baby from delayed treatment at Roseland Community Hospital.
  • $800,000 to a man from undiagnosed carpel tunnel syndrome at Rush University Medical Center.
  • $750,000 to motorcyclist who sustained severe injuries to his leg when struck by a motor vehicle.

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