Chicago Personal Injury Lawyer Blog

On July 1, 2012, Supreme Court Rule 243 will go into effect. This addition to the Illinois Supreme Court Rules will permit jurors in civil cases to ask questions of witnesses. While the practice was never specifically prohibited, and some judges took the liberty of allowing jurors to ask questions when counsel for both parties consented, the imposition of the rule may have a substantial effect on the way civil trials proceed.

The rule works like this: during trial, once a witness has been questioned by both parties, a judge can decide whether to allow jurors to submit written questions to be asked of that particular witness. If the judge determines that juror follow-up questions are appropriate, then he will receive the written questions and they will be marked as exhibits and made a part of the record. Jurors will not be required to submit questions, but, if they choose to do so, they can submit multiple written questions.

Next, outside the presence of the jury, the judge will share the questions with counsel for both parties and allow the attorneys to object to the admission of certain questions. Then, the judge will rule on whether the question should be admitted, stricken or modified in some way.

Questions that are deemed admissible will be read to the witness by the court. The court will instruct the witness to limit her answers to the exact question posed. Counsel for both parties will be permitted the opportunity to ask follow-up questions of the witness.

The new rule has been met with mixed sentiment. Some, such as the Illinois Trial Lawyers Association, hail the rule as innovative and believe that it will lead to better juror comprehension and will empower jurors by providing them with a voice during the trial proceedings. Similarly, Chief Justice Thomas Kilbride of the Illinois Supreme Court believes the rule will lead to increased juror comprehension of and attention to the evidence.

Some warn that the rule may lead to unwanted speculation by jurors into areas that were specifically prohibited during motions in limine due to their irrelevant or prejudicial effect on the legal issues before the jury.

Joseph W. Balesteri, a partner at Power Rogers & Smith, who concentrates his practice in the area of medical negligence, commented: "The most important people in a trial, the jurors, should be allowed to ask questions when the judge finds it appropriate, especially in a complex case." Todd A. Smith, named partner at Power Rogers & Smith, echoed these sentiments, stating: "Allowing jurors to ask questions of witnesses encourages juror engagement and provides lawyers with useful insight to ensure jurors understand the issues in the case. We look forward to the cautious implementation of the rule."

References:

• Illinois Supreme Court to allow juror questions in civil trials, The Daily Herald, by Barbara Vitella, April 3, 2012.
• Court will allow jury questions, Chicago Daily Law Bulletin, by Josh Weinhold, April 3, 2012.
• Juror Participation, Chicago Tribune, by Jerry Latherow, April 18, 2012.

Continue reading "Supreme Court Rule 243 Allowing Jurors to Question Witnesses Goes into Effect July 1, 2012" »

Most of us have heard of the "black box" that exists in airplanes, but few of us realize that most vehicles on the road today are equipped with these same devices. Indeed, since the early 1990s, automobile manufacturers, including General Motors and Ford, began installing black boxes or "event data recorders" (EDRs) into their vehicles.

EDR is capable of recording various actions taken by the driver during the car's operation. Unlike the black box in airplanes, which records audio and technical information throughout the duration of the flight, a car's EDR will only record a certain amount of data preceding an event, such as a crash. For that reason, in order to use the EDR data as evidence, it must be timely preserved. If a vehicle is operated after being involved in a crash, the EDR data could be overwritten and erased.

Black box technology in the news:

Black Box data was recently used to determine the cause of the car crash involving Massachusetts Lt. Governor Tim Murray. Murray's car rolled over after accelerating without breaking or turning, crashing into a rock ledge off Interstate 190 in Sterling, MA on November 2, 2011. In their investigation of the collision, the Massachusetts State Police obtained EDR data from the vehicle Lt. Governor Murray was operating, which revealed that at the time of the collision, Murray was driving 100 miles per hour. Their investigation further revealed that Murray was driving without a seat belt and the data suggested that he had possibly fallen asleep behind the wheel in the moments before totaling the vehicle. Murray admitted, after the data was released, that the results were accurate.

Similarly, in April of 2007, New Jersey Governor Jon Corzine was seriously injured in a crash on the Garden State Parkway. Initial reports indicated that the Governor's SUV was traveling at a speed of more than 70 mph at the time of the crash. After reviewing the "black box" data from the involved vehicle, however, it indicated that in fact the Governor's vehicle was traveling at 91 mph at the time of the collision and that the governor was not wearing his seat belt.

Using black box technology and EDR data as evidence:

Federal regulations exist regarding what types of information - speed, seatbelt status, service brake and air bag deployment, for example - will be recorded and how that data will be stored in a car; however, Federal law allows each jurisdiction to decide whether and how the data collected by EDR can be used in criminal and civil proceedings. Most states permit the introduction of EDR evidence in both civil and criminal proceedings. See, e.g., Bachman v. General Motors, 332 Ill. App. 3d 760 (4th Dist. 2002) (reasoning that the process of gathering and recording data through EDRs is not new or novel and holding that the design and implementation of an EDR device adheres to the Frye standard); Matos v. State, 899 So. 2d 403 (Fla. Dist. Ct. App. 2005) (finding that EDR data is generally accepted in relevant scientific fields, and there is no basis to exclude it where the process of recording or downloading such data is not new or novel because it has been used in the automobile industry for over 10 years); Brill-Edwards v. Ryder Truck Rental, Inc., No. Civ. 3:01CV915 (PCD), Civ. 3:01CV1768, 2003 WL 23511733, *1 (D. Conn. Jan. 24, 2003) (exempting EDR from the Frye and Daubert tests because the "raw data" does not require expert opinion or interpretation).

Under Illinois law, EDR may be introduced in both civil and criminal proceedings. In many instances, evidence of EDR can be used to corroborate your theory of the case. Even if the evidence is contrary to your original theory, reviewing it early on in the case allows you to develop a more accurate, alternative theory. If you plan to hire an accident reconstruction expert, he/she will definitely want to review the EDR data to aid in the reconstruction.

In a recent case handled by Larry R. Rogers, Jr. of Power Rogers & Smith, P.C., a young woman was killed as a result of her automobile being broadsided or "t-boned" by an ambulance. In that case, Mr. Rogers was able to extract EDR data from the decedent's 2005 Chevy Malibu to determine the speed, time the brakes were applied and when the airbags deployed. The speed and braking data, in particular, corroborated eyewitness testimony regarding the decedent's speed at the time of the occurrence and was used by the accident reconstruction expert to corroborate reaction times. Because the dispute also concerned who had the green light, the EDR data was also helpful to the expert with regard to his testimony on how humans react when they are surprised, such as when a vehicle runs a traffic light and strikes their vehicle.

Mr. Rogers was asked to speak on the topic of "black box discovery" at the upcoming 2012 American Association for Justice Convention in Chicago.

References:

Continue reading ""Black Box" Technology and Its Use in Illinois Civil Litigation" »

What exactly is spoliation?

When most people hear the word spoliation, they think of food going rotten.

On the contrary, spoliation of evidence is a lesser-known cause of action that provides an injured party with a remedy when the evidence upon which her case relies was destroyed by another person. The Illinois Supreme Court first established this cause of action in Boyd v. Travelers Ins. Co., 166 Ill. 2d 188 (1995). The court held that while there is no general duty to preserve evidence, a duty will arise "through an agreement, a contract, a statute, or another special circumstance." Id. at 195. Additionally, the court provided that a defendant may voluntarily assume a duty to preserve evidence by affirmative conduct. Id. This paradigm was eventually molded into a two prong test that is used to determine when a defendant has a duty to preserve evidence.

In general negligence suits, of course, a plaintiff must prove 1) that the defendant had a duty to the plaintiff, 2) that the defendant breached that duty, 3) that the defendant's breach caused the plaintiff's injury and 4) that the plaintiff did in fact suffer an injury. In order to state a cause of action for spoliation, however, a plaintiff must assert more.
As the Illinois Supreme Court elucidated in Dardeen v. Kuehling, 213 Ill. 2d 329, 336 (2004), a plaintiff must first allege that the defendant had a duty to preserve evidence pursuant to an agreement, contract, statute, special circumstance or voluntary undertaking. Id. And second, the plaintiff must allege that a reasonable person in the defendant's position would foresee that the subject evidence would be material to a potential civil action. Id. The Dardeen court aptly referred to the first prong of the test as the "relationship prong" and the second prong as the "foreseeability prong." Id.

In Boyd, the court found that the defendant had a duty to preserve evidence when the plaintiff was injured in an explosion caused by a propane heater and his insurance carrier lost the heater after taking possession of it in order to inspect it. Boyd, 166 Ill. 2d at 191. The court reasoned that the defendant-insurer was aware that the heater was of material importance to future litigation when it took the heater for its own investigation of the case. Id. at 195. The court held that the plaintiff has sufficiently stated a claim for spoliation of evidence by alleging that the defendants knew that the heater was material to future litigation and that the defendants voluntarily assumed a duty to preserve the evidence. Id. at 196-97.

In Dardeen, on the other hand, the court held that the defendant-insurer did not have a duty to preserve evidence because it never controlled the evidence at issue. In that case, the plaintiff was injured when he fell due to a hole in a brick sidewalk outside of the defendant-homeowner's house. Dardeen, 213 Ill. 2d at 331. The defendant-homeowner called her insurance carrier and asked whether she could remove the faulty bricks in order to avoid any future accidents. Id. The insurer indicated that the homeowner could remove the bricks and thus the evidence central to the case was destroyed, and the plaintiff's premises liability claim was impeded. Id. The court reasoned that a single phone call from an insured to her insurer was insufficient to satisfy the relationship prong of the duty test. Id. at 338.

Since Dardeen, several Illinois Appellate Court opinions have applied Boyd and held that a duty to preserve evidence was owed. In Jones v. O'Brien Tire and Battery Service Center, Inc., 374 Ill. App. 3d 918, 928 (5th Dist. 2007), for example, the Fifth District Appellate Court found that Defendants had a duty to preserve evidence pursuant to a voluntary undertaking theory. The court reasoned that when an entity undertakes to preserve evidence for its own benefit, this voluntary undertaking imposes a duty to continue to preserve the evidence for the benefit of any other potential litigants. Id. In that case, the plaintiff's decedent was killed when a wheel assembly separated from the defendant's truck and struck the decedent's car. Id. at 921. The defendant-driver's insurer hired an expert who inspected the wheels on the day of the accident. Id. at 922. In addition, the defendant-insurer directed the defendant-driver to preserve the wheel, and later wrote him a letter indicating that he should maintain the wheel in a secure place in case it would be needed for future litigation. Id. Unfortunately, the defendant-driver repaired his truck and discarded the suspect wheel, thus destroying the relevant evidence. Id. at 923. The court held that the defendant-driver and the defendant-insurer had a duty to preserve the wheel. Id. at 927. The court reasoned that "while it is certainly true that [the insurer] did not have the kind of complete control over the wheels that it would have had if it had taken possession of them, it had- and exercised- the authority to direct [the defendant driver], as its insured, to preserve the wheels." Id. at 927. Thus, the court found that one may voluntarily assume a duty by having effective control over the evidence when one has the authority to direct the entity in possession of the evidence.

Similarly, in Brobbey v. Enterprise Leasing Co. of Chicago, 404 Ill. App. 3d 420 (1st Dist. 2010), the First District Illinois Appellate Court held that the defendant had a duty to preserve evidence pursuant to special circumstances. In that case, the plaintiffs were severely injured when the rental van in which they were driving experienced brake failure. Id. at 423. Prior to the accident, various drivers of the van noticed a strange wobbling of the steering wheel each time the brakes were applied. Id. The plaintiffs notified defendant Enterprise, the rental car company, of the wobbling, but the defendant assured the plaintiffs that the car was functioning properly. Id. After the occurrence, the defendant conducted its own investigation and concluded that there was no malfunction of the brake system and then released the van to be destroyed. Id. at 424. The court reasoned that because the plaintiffs complained to the defendant that there was some defect that caused the van to wobble and brakes to malfunction, and because the defendant undertook to preserve the van to conduct its own investigation and the van was in possession of the defendant, the defendant had a duty to continue to preserve the evidence pursuant to special circumstances. Id. at 435.

Recently, Devon C. Bruce and Kathryn L. Conway of Power Rogers & Smith, P.C. submitted an appellate amicus brief on behalf of the Illinois Trial Lawyers Association in a case in which four men were injured when the concrete beam upon which they were standing collapsed. Martin v. Keeley & Sons, Inc., 2011 IL App (5th) 100117. After the collapse, while the men were still in the hospital, another entity destroyed the concrete beam. Id. at ¶ 9. Those potentially responsible for the collapse were provided an opportunity to inspect the beam. Unsurprisingly, these entities determined during their investigation that they were not at fault for the collapse. The men who were injured after falling from the beam, however, were not provided an opportunity to inspect the beam nor were they informed that the beam was going to be destroyed. As in Jones, the Fifth District Appellate Court found that defendants voluntarily assumed a duty to continue to preserve the beam for the plaintiffs' benefit. Id. ¶ 27. The court further reasoned that defendant controlled the beam, preserved it until its investigation was completed and authorized the destruction of the beam. Id. ¶ 24. Currently, defendants have appealed the decision in Martin to the Illinois Supreme Court, and Mr. Bruce and Ms. Conway will again be submitting a brief on behalf of the Illinois Trial Lawyers Association.

Why is spoliation important?

When evidence is destroyed, a potential litigant is severely deprived of the right to pursue or defend a cause of action. Spoliation is critical for those who have been prevented from litigating their case because important evidence was lost or destroyed by another. Without spoliation, an entity that is potentially at fault for an injury would be effectively encouraged to destroy evidence to relieve itself from liability. Spoliation encourages potential defendants and third parties to act responsibly and preserve evidence whenever it may be relevant to a potential civil action.

It is a fundamental part of our civil justice system that for every wrong, there should be a remedy. It is simply incompatible with this concept of ordered liberty that an injured party be deprived of a remedy. Where one party has deprived another of the evidence necessary to establish a fact in dispute, they have wronged that party, whether they are a plaintiff or a co-defendant. For that reason, it is important that Illinois courts recognize a cause of action for spoliation.

Continue reading "The Law of Spoliation in Illinois" »