March 2010 Case Notes & Comments

“I love to go to Washington - if only to be near my money.” ~ Bob Hope

MONTHLY QUIZ: IS A CHIROPRACTOR A PHYSICIAN? The defendant in an automobile accident case subpoenaed the plaintiff’s treating chiropractor to testify at a discovery deposition. The chiropractor demanded $550 per hour to testify. Defense counsel offered $300 per hour, but that offer was refused. After reviewing the documents, the trial court ruled that an hourly fee of $66.95 was reasonable. The chiropractor took umbrage, and filed an appeal. On appeal, the threshold issue was whether the chiropractor was a “physician” so as to be entitled to a deposition fee pursuant to Illinois Supreme Court Rule 204(c). Query: Was the chiropractor a “physician”? You be the judge.(Answer below).

 

CLOSING ARGUMENT – “SLICK LAWYER”: In closing argument, the defense attorney referred to the plaintiff’s attorney as a “slick lawyer trying to twist Dr. Cavalenes’ words.” Although the court found the reference was improper and was an impermissible personal attack against the integrity of plaintiff’s counsel, under the facts of this case, it was not sufficient to warrant a new trial. However, the court did site Delfield v. Coop, 8 IL.2d 293 (1956) in which name-calling was grounds for a new trial even where, as here, the other side failed to object. Wilbourn v. Cavalenes, ___ Ill.App.3d ___, (1st Dist., 1-08-3603, Feb. 19, 2010).

 

ADMISSIBILITY OF PHOTOGRAPHS WITHOUT EXPERT TESTIMONY: The plaintiff sued following a rear-end auto collision. Though the defendant admitted he was negligent in causing the collision, he denied that the plaintiff was injured. At trial, the plaintiff moved to exclude photographs showing minimal damage to defendant’s vehicle and no visible damages to plaintiff’s vehicle. On appeal, the plaintiff contended that it was an error to admit such photographs without the aid of an expert who could properly relate the vehicular damage (i.e. or lack thereof) to the plaintiff’s claimed injuries. Upon review of the photographs and the record of proceedings, the Appellate Court held that the trial court was within its discretion when it admitted the photographs into evidence, even without expert testimony. Ford v. Grizzle, ___Ill.App.3rd ___, (5th Dist, 5-08-0185, corrected opinion March 4, 2010).

 

TARGETED TENDER TO RISK-POOLING TRUST: A physician who was sued in a medical malpractice case issued a targeted tender of his defense and indemnity to a risk pooling trust, and directed that another insurer, a traditional insurance company, not defend him. The risk pooling trust filed a complaint for equitable contribution against the traditional insurer, arguing that Illinois law on targeted tenders does not apply to risk pooling trusts. The court disagreed, and held that there was an effective targeted tender. Further, the targeted tender was not negated by the doctor’s desire to keep the deactivated insurer on standby coverage in the event that the primary coverage was exhausted. The risk pooling trust was responsible for 100% of the cost of defense and indemnity. Chicago Hospital Risk Pooling Program v. Illinois State Medical Inter-Insurance Exchange, ___Ill.App.3rd___, (1st Dist., 1-07-2195, Jan. 26, 2010).

 

CORPORATION’S DUTY TO PRODUCE WITNESSES AT TRIAL: This case held that, while Illinois Supreme Court Rule 237(b) requires defendant corporations to produce its officers, directors, or employees as trial witnesses, the rule does not extend to persons who are “under a party’s control, such as a company doctor.” White v. Garlock Ceiling Technologies, LLC., ___Ill.App.3d___, (4th Dist., 4-09-0036, Feb. 8, 2010).

 

WORKERS’ COMPENSATION WAS SOLE REMEDY – ABDUCTION OF EMPLOYEE IN PARKING LOT: Plaintiff was abducted in parking lot shortly before beginning her shift. Plaintiff filed a direct lawsuit against her employer for failing to provide adequate security. The employer’s motion to dismiss was granted – workers’ compensation was the employee’s sole remedy. Larson v. Schmitt Boulder Hill, Inc., ___Ill.App3d__, (2nd Dist, No, 2-09-0244, January 22, 2010).

 

ANSWER TO QUIZ: Yes, the chiropractor is a physician and is entitled to be paid for his time in attending the deposition. (However, the Appellate Court also upheld the trial court’s calculation of $66.95 per hour, which was based upon the chiropractor’s W-2 income, divided by 52 weeks at 40 hours per week,” as reasonable). Montes v. Mai, ____Ill.App.3rd ____, (1st Dist. 1-08-2774., Feb. 25, 2010).

Past Publications

2024

September 2024
August 2024
June 2024
May 2024
March 2024
January 2024

2023

December 2023
October 2023
September 2023
August 2023
May 2023
March 2023
February 2023

2022

December 2022
October 2022
August 2022
July 2022
April 2022
March 2022
January 2022

2021

December 2021
October 2021
August 2021
July 2021
May 2021
April 2021
March 2021
January 2021

2020

December 2020
November 2020
October 2020
September 2020
August 2020
February 2020
January 2020

2019

December 2019
October 2019
September 2019
July 2019
May 2019
March 2019
February 2019
January 2019

2018

December 2018
October 2018
August 2018
June 2018
May 2018
April 2018
March 2018
February 2018

2017

December 2017
November 2017
October 2017
September 2017
August 2017
July 2017
June 2017
May 2017
March 2017
February 2017

2016

December 2016
October 2016
September 2016
August 2016
July 2016
June 2016
March 2016
January 2016

2015

December 2015
September 2015
August 2015
July 2015
June 2015
May 2015
April 2015
March 2015
February 2015
January 2015

2014

December 2014
October 2014
September 2014
July 2014
June 2014
April 2014
April 2014
March 2014
February 2014
January 2014

2013

December 2013
November 2013
October 2013
September 2013
August 2013
July 2013
June 2013
May 2013
April 2013
March 2013
January 2013

2012

December 2012
November 2012
October 2012
September 2012
August 2012
July 2012
June 2012
May 2012
April 2012
March 2012
February 2012
January 2012

2011

December 2011
November 2011
October 2011
September 2011
August 2011
July 2011
June 2011
May 2011
April 2011
March 2011
February 2011
January 2011

2010

December 2010
November 2010
October 2010
September 2010
August 2010
July 2010
June 2010
May 2010
April 2010
March 2010
February 2010
January 2010

2009

December 2009