trials and tribulations

2003-12-06T22:23:00.000-08:00

Contact me at markploftus@aol.com

And now from the Celebrity Justice files...

Barbara Streisand recently took it on the chin in Los Angeles. Seems that a California environmental group had the audacity to take a photograph of Streisand's cliffside Malibu estate and then posted the picture on their website. Streisand had sued, claiming the photo violated her privacy. Superior Court Judge Allan J. Goodman however, thought otherwise. He decided that the under the First Amendment the group had to right to post the picture on their website. In making his ruling the judge found that doing so would not have been offensive to a reasonable person. In addition, the judge awarded legal fees to the defendant. So to add insult to injury, Barbara is going to have to get out her checkbook and write a check to the other side for the attorney fees. The photo can be seen at smokinggun.com

And Dennis Rodman is in the news again....kind of. You may remember back in January of 1997 when Rodman kicked cameraman Eugene Amos Jr. during a Bulls game against Minnesota. After the kick, Amos promptly was rolling on the ground ostensibly in pain. Days later, Rodman and Amos came to an agreement whereby Rodman would pay Amos $200,000 to avoid being sued. Amos didn't declare that amount on his taxes, claiming the money was for a recovery for physical injuries, which are typically not taxable. The IRS audited Amos however and took the position that the entire amount should be taxable. The U.S. Tax Court ruled last week that $120,000 of the amount was indeed for personal injury, but $80,000 was paid by Rodman to avoid a lawsuit. Amos then owes taxes on the $80,000. They say that any publicity is good publicity so Rodman has to be thrilled in name in back in print. And reports persist that the 42 year old former Bull is very interested in making a NBA comeback. The Chicago Sun-Times reported on Friday however, that little interest has been shown by the NBA. Might have something to do with Rodman's professed desire to play his last game naked.

2003-12-02T21:22:00.000-08:00

Contact me at markploftus@aol.com

There is a very interesting article in the December issue of Fortune Magazine concerning the lawsuits some 250 IBM workers have filed against IBM for allegedly being poisoned while making computer chips and other components. The author is Nicholas Varchaver. One case just began in Santa Clara, California and is expected to go on for months. The 2 plaintiffs are claiming that they were unknowingly poisoned by exposure to toxic chemicals while toiling away in the company's semiconductor and disk-manufacturing plants. They are claiming the exposure caused them to develop cancer. The article notes that although IBM claims to have state of the art worker protections in place, IBM internal reports have acknowledged that adequate toxicologic assessment of chemicals used in the development of computers usually takes place after their introduction into the workplace, not before. In addition, Dr. Bruce Fowler, a University of Maryland Professor and advisor to the Federal Agency for Toxic Substances estimated that of the 100,000 chemicals used commercially in the United States, maybe 1000 have been adequately studied. The article also points out that commercial use of the chemicals often calls for mixing them - - and science simply doesn't know the long term effects of those mixtures. Definitely worth a read.

Also an addendum to the post of 11/24 where I discussed the office manager who had been fired by her bosses after having a couple of seizures. She wanted me to sue her employer for a variety of reasons. Don't think I will take the case. My best bet is the ADA and I don't think she has been formally diagnosed with a disease. In addition, there were some other facts about the case that would have been problematic. You would like to be able to help everybody who comes to see you. But sometimes you just can't.

2003-11-26T21:31:00.000-08:00

Contact me at markploftus@aol.com

Here is a rare, but not unheard of occcurrence. A friend had referred a client who had suffered serious mold damage in her home. The client was very anxious to jump into litigation and get her complaint on file. Despite my better judgment I travelled quite a distance to meet her on the first occasion, when we were to meet in a local restuarant. Turns out the restuarant was closed, so our initial meeting was conducted in my car. She gave me lots of info in a rather hurried manner and then had to leave to get a ride home. I couldn't make heads or tails of the information provided, so we had to arrange another meeting, again at some distance from the office. She was about 30 minutes late. Again very anxious to get moving and sue the defendants. I advised her that I needed a signed contract, and she agreed to sign in post-haste, really anxious to get things moving. Adamant about having suit on file by November 1. She has now had the contract for several weeks and has yet to sign it. I have it on pretty good authority that she is shopping the case to other lawyers. Even after nearly 20 years of practice sometimes you still have to audition for the case -- sometimes you get it, sometimes you don't.

Just a quick comment on a recent criminal court verdict here in Chicago. The defendant was being tried for the murder of a woman with whom he had been carrying on an affair. The State put on evidence that he and the deceased had gotten into an argument after the woman learned he was married. Apparently things got heated and unfortunately, the woman ended up dead. There was some pretty grisly evidence about how he had disposed of the body.
The defendant testified[in retrospect, probably a bad idea]. Apparently a pretty cocky guy who even refused to acknowledge he was "dating" the deceased. He was pointedly asked on cross-examination, well then, if you weren't dating her, what would you call it when a man repeatedly takes a woman out for drinks/dinner and ends up sleeping with her. His reply? "I would call it getting lucky". Now that is one STUPID response. This guy is on trial for murder, and on cross-examination he apparently decides he should gloat about what a stud he is. I'm sure he will find a number of opportunities for love in prison.

2003-11-25T21:57:00.000-08:00

Contact me at markploftus@aol.com

Just a quick note about a medical malpractice case scheduled for trial on January 20, 2004. My client was a retired carpenter in his early 60's who had some lung problems that slowed him down some, but overall he was doing okay. In February of 1999 he is seen by his family doc for complaints of pain in his legs. The doc orders a CT scan of the pelvis which reveals aneurysms of his abdominal aorta[bulging throughout the aorta]. There aorta itself is aneurysmal and there is a large aneurysm further down the aorta. The medical literature suggests that once an aneuryms gets over 5 cm in size, it should be followed closely - like every six months a follow up CT scan to detect any growth. The aneurysm further down was nearly 6 cm. If an aneurysm ruptures in a non-hospital setting, the mortality rate is approximately 90%. In other words, you die. This is a potentially lethal condition that merits close regular observation.
Well, rather inexplicably, my client is never told about the problems. The doctor admits in his depo that he just never told him. Why? Well, because my client was pretty sick[read "I thought he was gonna die soon anyway, so why bother?"]. There is absolutely no follow up on the aneurysms. And approximately 18 months later, the large aneurysm ruptures and my client, after a valiant struggle and emergency surgery, dies.

The surgeon who did the emergency surgery testified that the patient should have been advised and further, that if an elective procedure was undertaken, the patient likely would have survived.

Haven't taken the defense expert's depo yet, but I suspect his testimony will go something like this: Your client was old. He was sick. And an elective procedure would have killed him. So we actually did your client a favor by never advising him of this condition and just letting it rupture and kill him.

Despite repeated assurances that the case could be settled, we are 60 days away from trial. I will keep you posted on developments.

And now for something completely unrelated...A Cook County judge ruled in favor of the Chicago Cubs today yesterday, allowing the Cubs to go on scalping their own fans. It appears that the Cubs had a hand in establishing a ticket brokering business. They would then dump VIP tickets etc. to the broker who would then sell them for more than face value. Ball Clubs aren't supposed to scalp their own tickets, but it appears the Cubs have been doing so and will continue to do so. Just another reason why I am a Sox fan.

2003-11-24T21:21:00.000-08:00

Contact me at markploftus@aol.com

Saw a new client today and she presented an interesting scenario. She worked as a officer manager for a local medical practice group. Got along well with her bosses and was paid well. As sometimes happens, a better opportunity came along and she took it. She gave notice to her employer, who begs her to stay and promises more money. She ultimately rethinks her decision and decides to stay. And then things get interesting.

Just a week or so later, she is diagnosed with a serious medical condition that can be managed by medication. A week or so later she had to miss a day of work because of the condition. The next day she is fired, by the very people that had told her how great she was just weeks before. She has been struggling to find work and is now really up against it financially. I am looking into a wrongful discharge theory, based on her recently diagnosed condition. Unfortunately, in Illinois, employees without written contracts are typically considered "at will" employees - - i.e. they can be fired for any reason or no reason. This might be a tough - - I am doing some research and will post my findings in the future. Tomorrow I will discuss the latest developments in a medical malpractice case scheduled to go to trial on January 20, 2004.

2003-11-18T21:29:00.000-08:00

Contact me at markploftus@aol.com

Was hoping to be on trial in a couple of weeks on a case where my client was seriously injured after a collision with a semi on a local highway. My client just informed me the other day however, that she was going to be out of town the week of her trial and that she would be traveling to Mayo Clinic for additional treatment for her ankle fracture. I have to admit I was a bit flummoxed when I heard about the Mayo Clinic. Isn't that something you would want your attorney to know? Not exactly sure why a client would choose to keep that information to herself, but very little surprises me anymore. And maybe a trial won't be necessary. At an evidence depo of one of my client's doctors today, defense counsel was dropping hints that maybe we could settle the case.

The deposition of the doctor was interesting. These guys can be frustrating. This doc was her trauma surgeon when she was originally brought into the hospital. He did a laparotomy on her for repair of traumatic injuries to her liver and spleen. Had to incise her chest about six inches, clear out blood in the abdominal cavity and remove some blood clots that were forming. And he confirmed that there was damage both to the spleen and the liver. Sounds pretty serious, no? Not to hear these magnificent surgeons tell it. Too many of them think that after they repair things, the patient is good as new. Well, not so fast doctor. You see, lots of folks are well, unaccustomed to having you open their abdomens up. They don't bounce out of bed the next day and start planning their next marathon. In fact, most folks take a while to recover from something like that. In fact, every now and then, patients have been known to just plain feel crappy after undergoing abdominal surgery. After all, it isn't every day that one's chest is opened up. And some patients aren't thrilled with the scarring you leave on their chest. And then there are the medications and all the rest after the surgery. So here's a quick shout out to all you hot shot surgeons. Surgery, regardless of the specifics, is a big deal. People take awhile to bounce back. Patients aren't always good as new after you repair a spleen or set a bone. Sometimes those patients are sick or sore, or just plain hobbled for some time. And if you took a little more time with your patients you might notice that.

2003-11-06T23:44:00.000-08:00

Contact me at markploftus@aol.com

An rather non-traditional case I have is heating up and worth a comment. I represent a family who retained a local siding guy to come out and side their home last year. He comes out, rips all the siding off and apparently doesn't cover the home with the necessary Tyvek wrap. Not surprisingly, several major thunderstorms roll in and soon there is water pouring into the house. Not long after that, they got mold. Have to move out in 12/02. The carrier agrees that the mold needs to be removed, said process being pretty involved. For a number of reasons, there is one delay after another. Last week we are informed that the expert overseeing the mold remediation will no longer have anything to do with the project because he isn't being paid fast enough. So parts of the job simply aren't completed. The only problem? My clients have insurance which pays their living expenses for one year. That time is up in about a month. There house still isn't ready and now we don't have a hygenist to fix the damn thing. Winter is knocking at the door here in Chicago and I've got a family who isn't sure where they will be waking up on Christmas morning. I havd advised the carrier that we will get a new hygenist in there(on their dime) and get things done, but they haven't agreed. I will likely hear tomorrow if they are going to go along. If they don't I will probably name them as a defendant in the pending lawsuit for their failure to act in the best interests of their insured. I am actually hoping that the carrier take a hard line and says that they can't agree and they intend to cut living expenses off in a month. A Cook County jury wouldn't much like that kind of conduct from an insurance company(I hope).

I realized after reviewing the blog that I still owe a citation on the VESSA statutue and promise to get it posted soon.

2003-11-03T22:52:00.000-08:00

Contact me at markploftus@aol.com

Currently preparing for trial of a personal injury claim where my client was seriously injured after a collision on a local highway. She struck the rear of a semi and suffered horrific injuries to her leg and abdomen. She says semi abruptly cut in front of her with no warning. Semi simply says I never changed lanes, she just rear-ended me. To make matters more interesting the collision took place very near where traffic had been blocked off for an earlier car fire that was still burning. My theory is the trucker swerved at the last minute when he realized the right lane was blocked by ER vehicles dealing with the fire. Unfortunately, despite the fact State Troopers, firemen and ER personnel were all very near the scene at the time of occurrence, nobody saw it. So it boils down to a he said/she said. Trial set for December 1, 2003. A verdict for my client would make for a much happier Christmas for MPL and family.

On another note, got bad news for a mold client today. I represent a nice woman and her family who own a home in the northwest suburbs. As a result of some shoddy siding work, water infiltrated home and they got mold - stachybotrus - the bad mold. So they filed a claim with insurer who went out and got a remediation expert to take some samples and make suggestions for remediating the mold. My clients had to move out on 12/31/02. Remediation has been going on for nearly a year, which is a long time for a house. Found out today that the "experts" never followed the plan and certain portions of the home were never remediated. The process has to start all over again. My clients have taken and continue to take a beating on this case. And it only seems to be getting worse.
This one is going to get interesting.

2003-10-30T22:49:00.000-08:00

Contact me at markploftus@aol.com

Learned today that the state of Illinois recently enacted the Victims's Economic Security and Safety Act(VESSA). This looks like forward thinking legislation to assist people who may be struggling due to domestic or sexual violence in their lives. The purpose of the Act is to allow these folks to get necessary help without worrying about losing their jobs. I have laid out some of the more important portions of the Act below. Please note this is just a summary of some portions of the Act. For a full understanding you should consult the language of the Act and speak with a lawyer. And I must sheepishly admit that at present, I don't have the correct citation for the Act handy, but will note it in a subsequent post.

The Act covers most government employers as well as employers with 50 or more employees. And you don't have to be a full time employee to seek the protection of the Act. It covers part time employees as well.

The Act entitles an employee to a temporary leave if the employee is a victim of domestic or sexual violence and the employee is seeking medical attention or recovering from injuries, be they physical or psychological caused by the domestic or sexual violence. In addition, leave is permitted if the victim is obtaining services from a victim services organization; obtaining counseling; relocating or seeking legal assistance to ensure the employee's health and safety, or the safety of a member of the employee's family.

The Act allows for up to 12 weeks of unpaid leave during any 12 month period. While on the employee is on leave, the employer is required to maintain health-care coverage.

The employer may not discriminate against an employee for exercising the rights provided under the Act. In addition, the employer is not entitled to take any adverse actions against the employee for exercising rights under the Act.

At present, if an employee believes that his/her VESSA rights have been violated, they are obligated to seek relief through the Illinois Dept. of Labor. No civil cause of action is authorized.

2003-10-29T21:52:00.000-08:00

Today I filed a retaliatory discharge case against one of our lovely, caring, local nursing homes. A retaliatory discharge occurs when an employer fires an employee because the employee exercised a protected right, like filing a Worker's Comp claim. My client, a nice old guy who worked in maintenance, hurt his back while unloading a truck. He dutifully reported the injury to his boss and informed them he expected them to treat it as a work injury. Ultimately, he had to have back surgery and was off for about 12 weeks because of the surgery. His employer, filed documentation indicating the patient requested FMLA leave(my client interestingly enough, cannot read, can barely write and never requested FMLA leave for the injury). Then, shortly before he is to return to work, they write him a letter saying he is terminated because he didn't return to work immediately after his 12 week FMLA leave(which he never requested)expired. Will post updates as to how this case proceeds. My client hasn't worked in over two years but recently got a job as a crossing guard. He is a really good guy who deserves better. Will post updates as the litigation unfolds.

On a completely unrelated note, the Cancer Patient Protection Act is bill pending in Congress where insurance companies will be required, by law, to cover a 48 hour hospital stay for patients having undergone masectomies. It is designed to eliminate the "drive through masectomy" where women are sometimes forced to go home just hours after surgery. Lifetime Television has put the bill on its webpage, so I am told, along with a petition drive. For more info, go to http://wwlifetimetv.com/reallife/bc/pledges_mast_pledge.html.

2003-10-28T21:36:00.000-08:00

Well, I took the deposition of the defendant surgeon in the medical malpractice case I have involving the little boy who had what was to be a routine surgery at a local medical institution. The defendant testified that during the surgery, the assistant surgeon advised that he may have violated(i.e. nicked)the bowel with a surgical needle. The defendant testified that she examined the bowel through a hole in tissue about the size of a half dollar that was, incidentally, sutured with 4-6 thick sutures. By defendant's estimation, the inspection lasted 10-30 seconds, tops. Seeing no evidence of violation, defendant closed the patient, and ultimately sent the kid home that day.

Not suprisingly, the kid got sick about 18 hours later. Very sick. After all, content from his bowel was pouring into his abdomen. He was rushed to the ER after several vomiting episodes at home that left him delirious. The defendant admitted that the child may have died from peritonitis if he hadn't gotten to the hospital. An emergency laparotomy was done where they went back into his abdomen to look around. Lo and behold, they found a moderately sized hole in the small bowel quite near where they had been suturing. And lots of bowel content in his abdomen. So they sewed up the bowel and admitted him. But he was hardly out of the woods.

My client spent the next 3 weeks or so in a drug induced coma, struggling to recover from septic shock. He nearly went into multi organ system failure. He ultimately underwent 6 additional surgeries for various problems including several procedures to eliminate nasty abscesses in his abdomen and pelvis that were caused by bacteria from the original contamination. Kid's hospital bill was nearly $300,000.

The defense in the case goes like this: Hey, we thought we knicked the bowel. We took all of 10 seconds to look and didn't see anything. Sent him home. And darned if he didn't go and get sick from the hole we didn't find. An unfortunate result - but nothing we are responsible for. We'll see.

2003-10-26T23:14:00.000-08:00

The lawsuits keep coming in light of the fire at 69 W. Washington that killed six people. Appears there were announcements for everyone in the building to evacuate when it would have been safer to simply stay put. None of those cases will ever see the inside of a courtroom. According to newspaper reports, the owners/managers of the building were the people responsible for the announcements. They can even be heard in the background on some of the 911 calls. There is likely several layers of insurance so that eventually the families of the victims, as well as those who managed to survive, can be adequately compensated. I'll post commentary as developments warrant.

The tragedy at 69 W. Washington marks the third disaster in less than a year in Chicago. First, there was the tragedy at the E2 Nightclub. Then in the spring, there was the porch collapse. Now a deadly fire.

Too late and too tired to post anything else.

2003-10-24T22:18:00.000-07:00

Still feeling my way in this brave new world of blogging. Need to work over the weekend preparing for deposition of defendant doctor in a medical malpractice case. Doctor repaired hernia surgery on my client, a young kid, and apparently perforated the bowel during surgery. That might be a risk of surgery. The malpractice aspect grows out of some her decision to send him home. He went home and bile from his bowel was pouring into his abdomen. A short while later he is rushed to the ER and diagnosed with sepsis. He nearly died. The surgeon tells my client's mom that yes, he got restless during the original surgery as they were closing and that is when the perforation likely took place. Well, then you shouldn't send him home. My client spent the next month or so in ICU. Ultimately he pulled out of it, but still lost 6-8 weeks of his life. It will be interesting to hear what she says at the depo.

And then Monday afternoon, I have the distinct pleasure of defending an old client in a pro se matter. The plaintiff was arrested and his car towed to my client's repair shop. While the plaintiff is winding his way through our criminal courts, his car is broken into while it sits in the repair shop lot. And from what I can judge, it appear he had a mobile recording studio in the back of his car. He is claiming my client, or his employees, stole a catalogue of electronic and stereo equipment from the car. The real story? Some third parties scaled the fence and broke into several cars. In Illinois, the repair shop only has to exercise due care in looking after the property they have been given. I'm hoping to convince the judge that locking the car and placing it in a secured lot was good enough. The law is on my side, but judges are reluctant to be too hard on pro se plaintiffs, especially when the amount in controversy isn't much. I normally wouldn't take this case, but I had previously defended this client in a fraud case where he was being sued for $100,000 for allegedly doing slipshod repairs to a VW beetle. I really got to like the guy. In the original case, the jury was out for all of 30 minutes before they decided for my client. I had been really worried about the result because I had, in essence, called the woman who was suing him a liar in closing argument. After the verdict came back, I gingerly approached several jurors, all women, and asked if I had been too harsh on her. "Not at all, " said one of the jurors. "After all, she was a big liar." That's why tort reform is a bad idea - - juries usually do the right thing.

2003-10-22T21:55:00.000-07:00

Well, I've done it. Gone and created my own blog. I am a trial attorney in Chicago and intend to use my blog to mention developments in the law and also write about some of the "interesting" things that occur in my practice. I am a neophyte to all of this, so be patient. If you want to get ahold of me, you can reach me at markploftus@aol.com. There will be more content and additional information(I hope)in the days and weeks to come.